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Justinian I · The Digest of Justinian §5.2.31.pr-5.2.31.3

Succession to Standing and Forfeiture by Assent

Passage 995 of 9271 · Latin

Summary

This section discusses the succession of the right to bring an action for an inofficious testament to the next person in line if the first eligible party fails to do so, the irrelevance of the designated heir's status, and how accepting a legacy or expressing consent to the testament bars a person from bringing the action.

[PAULUS libro singulari de septemuiralibus iudiciis. ] §5.2.31.prSi is qui admittitur ad accusationem, nolit aut non possit accusare, an sequens admittatur, uidendum est.
[PAULUS in his Single Book on Septemviral Judgments.] If the person who is admitted to bring the accusation should be unwilling or unable to accuse, we must consider whether the person next in order is admitted.
et placuit posse, ut fiat successioni locus.
And it has been decided that he can, so that there may be room for succession.
§5.2.31.1Quantum ad inofficiosi liberorum uel parentium querellam pertinet, nihil interest, quis sit heres scriptus ex liberis an extraneis uel municipibus.
As far as the complaint of an inofficious testament of children or parents is concerned, it makes no difference who is designated as heir, whether they are among the children, or outsiders, or municipalities.
§5.2.31.2Si heres extiterim ei, qui eo testamento institutus est quod de inofficioso arguere uolo, non mihi nocebit, maxime si eam portionem non possideam uel iure suo possideam.
If I have become the heir to someone who was appointed in that testament which I wish to challenge as inofficious, it will not prejudice me, especially if I do not possess that portion or if I possess it by its own right.
§5.2.31.3Diuersum dicemus, si legauerit mihi eam rem, quam quis ex eo testamento acceperat: nam si eam adgnoscam, repellar ab accusatione.
We shall say otherwise if he has bequeathed to me that property which someone had received under that testament: for if I accept it, I shall be barred from the accusation.
quid ergo si alias uoluntatem testatoris probauerim? puta in testamento adscripserim post mortem patris consentire me? repellendus sum ab accusatione.
What then if I have approved the testator's will in some other way? Suppose I have written on the testament that I consent after my father's death? I must be barred from the accusation.

Notes

  1. §5.2.31.pran sequens admittatur — An indirect question clause using the subjunctive present passive `admittatur`, introduced by the impersonal gerundive phrase `uidendum est` (it must be seen/considered). `an` introduces the question of whether or not.
  2. §5.2.31.2quod de inofficioso arguere uolo — The relative pronoun `quod` (neuter singular accusative) has `eo testamento` (neuter singular ablative) as its antecedent. It functions as the direct object of the transitive verb `arguere` (to challenge, accuse), making the construction literally 'which [testament] I wish to challenge as inofficious'.
  3. §5.2.31.2iure suo — Ablative of manner or cause. Literally 'by its (or his) own right'. In this legal context, it contrasts possessing a portion as an appointed heir under the contested testament with possessing it by virtue of one's own independent legal right or status.
  4. §5.2.31.3puta — Originally the second-person singular present imperative of `putare` (to think, suppose), but used here parenthetically as an adverb meaning 'for instance' or 'suppose'.
  5. §5.2.31.3consentire me — An accusative-with-infinitive (AcI) construction consisting of the subject accusative `me` and the infinitive `consentire`, acting as the object of the verb `adscripserim` (I have written down/added). It means 'I wrote down that I consent'.

Cite this passage

Justinian I, The Digest of Justinian §5.2.31.pr-5.2.31.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.2.31.pr-5.2.31.3

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