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Justinian I · The Digest of Justinian §5.2.23.pr-5.2.23.2

Loss of Suit by Will Acknowledgment and Accrual of Shares

Passage 987 of 9271 · Latin

Summary

Paulus discusses the proper legal remedies when an emancipated son is passed over or disinherited while his own son is instituted heir, the loss of the right to contest a testament due to acts of acknowledgment, and the accrual of shares among co-plaintiffs when one withdraws or is barred by time.

[PAULUS libro singulari de inofficioso testamento. ] §5.2.23.prSi ponas filium emancipatum praeteritum et ex eo nepotem in potestate retentum heredem institutum esse: filius potest contra filium suum, testatoris nepotem petere bonorum possessionem, queri autem de inofficioso testamento non poterit.
[PAULUS in his Single Book on Inofficious Testaments.] If you suppose that an emancipated son has been passed over, and a grandson born of him, who was retained in the power of the testator, has been instituted heir: the son can claim possession of goods against his own son, the grandson of the testator, but he will not be able to complain of the inofficious testament.
quod si exheredatus sit filius emancipatus, poterit queri et ita iungetur filio suo et simul cum eo hereditatem optinebit.
But if the emancipated son has been disinherited, he will be able to complain, and thus he will be joined with his own son and will obtain the inheritance together with him.
§5.2.23.1Si hereditatem ab heredibus institutis exheredati emerunt uel res singulas scientes eos heredes esse: aut conduxerunt praedia aliudue quid simile fecerunt: uel soluerunt heredi quod testatori debebant: iudicium defuncti agnoscere uidentur et a querella excluduntur.
If disinherited persons have purchased the inheritance or individual things from the instituted heirs, knowing them to be the heirs, or have leased landed estates or done anything else of a similar nature, or have paid to the heir what they owed to the testator: they are deemed to acknowledge the judgment of the deceased and are excluded from the complaint.
§5.2.23.2Si duo sint filii exheredati et ambo de inofficioso testamento egerunt et unus postea constituit non agere, pars eius alteri adcrescit.
If there are two disinherited sons and both have brought an action regarding the inofficious testament, and one of them afterwards decides not to proceed, his share accrues to the other.
idemque erit, et si tempore exclusus sit.
And the same will hold true even if he has been excluded by lapse of time.

Notes

  1. 5.2.23.prSi ponas — The verb ponas is the second-person singular present subjunctive, expressing a general or hypothetical assumption ('if you suppose'). The following clause filium ... praeteritum [esse] et ... nepotem ... heredem institutum esse is an accusative with infinitive (A.C.I.) construction, where the infinitive esse is implied and must be supplied.
  2. 5.2.23.prquod si — The conjunction quod si is an adversative conditional linker meaning 'but if' or 'if, however'. It introduces a contrast between the case of being 'passed over' (praeteritus) in the preceding sentence and being 'disinherited' (exheredatus) in this clause, which lead to different legal consequences.
  3. 5.2.23.1scientes eos heredes esse — The present participle scientes agrees with the subject exheredati and expresses an attendant circumstance or reason ('knowing that...'). Internally, it governs an accusative with infinitive (A.C.I.) construction: eos (subject accusative) and heredes esse (infinitive clause).
  4. 5.2.23.2idemque erit, et si — The phrase et si here does not introduce a concessive clause ('even if'), but rather et functions as 'also' modifying the condition ('and also if...'), meaning 'and the same will hold true if...'. tempore is an ablative of cause or means, referring to the expiration of a statutory time limit.

Cite this passage

Justinian I, The Digest of Justinian §5.2.23.pr-5.2.23.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.2.23.pr-5.2.23.2

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