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Justinian I · The Digest of Justinian §5.2.32.pr-5.2.32.1

Loss of Standing Through Assisting or Claiming Legacies

Passage 996 of 9271 · Latin

Summary

The text discusses whether a disinherited person loses the right to bring a complaint of an inofficious testament if they assist in a claim related to the testament, or if they claim a legacy as the heir to a legatee.

[IDEM libro singulari de inofficioso testamento. ] §5.2.32.prSi exheredatus petenti legatum ex testamento aduocationem praebuit procurationemue susceperit, remouetur ab accusatione: adgnouisse enim uidetur, qui qualequale iudicium defuncti comprobauit.
[THE SAME in his Single Book on Inofficious Testament.] If a person who has been disinherited provides legal assistance to someone claiming a legacy under the testament or undertakes to act as his proxy, he is barred from the accusation; for anyone who has approved the deceased's judgment, of whatever kind it may be, is deemed to have accepted it.
§5.2.32.1Si legatario heres extiterit exheredatus petieritque legatum, uidebimus an sit summouendus ab hac accusatione: certum est enim iudicium defuncti et rursus nihil ei ex testamento relictum uerum est.
If a disinherited person becomes the heir to a legatee and claims the legacy, we shall consider whether he ought to be excluded from this accusation: for on the one hand, the deceased's judgment is certain, and on the other hand, it is also true that nothing was left to him under the testament.
tutius tamen fecerit, si se abstinuerit a petitione legati.
However, he will act more safely if he abstains from claiming the legacy.

Notes

  1. 5.2.32.prqualequale iudicium — qualequale is the neuter singular accusative of the relative pronoun qualisqualis (of whatever kind), modifying iudicium (judgment, will) which is in turn limited by the genitive defuncti. It means "whatever the judgment of the deceased might be," indicating that approving any part of the will in any way (comprobavit) implies the acceptance (adgnouisse) of the entire testament.
  2. 5.2.32.1certum est enim iudicium defuncti et rursus nihil ei ex testamento relictum uerum est — This clause expresses a dilemma when a disinherited person, as the heir of a legatee, claims a legacy. Two contrasting facts are joined by et rursus (on the other hand, and again). First, it is certain (certum est) that he has indirectly approved the deceased's will (iudicium defuncti) by claiming the legacy; second, it is also true (uerum est) that nothing was directly left to him (nihil ei relictum) under the testament. This structure highlights the need to reconcile these two opposing legal considerations.
  3. 5.2.32.1tutius tamen fecerit, si se abstinuerit — fecerit is a future perfect indicative (or perfect subjunctive), corresponding to the future perfect si se abstinuerit in the conditional clause, indicating a highly probable future consequence: "if he abstains, he will have acted more safely."

Cite this passage

Justinian I, The Digest of Justinian §5.2.32.pr-5.2.32.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.2.32.pr-5.2.32.1

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