Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XXIX6,
Si quis aliquem testari prohibuerit vel coegerit
Liber vicesimus nonus
VI.

Si quis aliquem testari prohibuerit vel coegerit

(Where Anyone Prevents Another From Making a Will, or Compels Him to Make One.)

1Ulpianus libro quadragensimo octavo ad edictum. Qui dum captat hereditatem legitimam vel ex testamento, prohibuit testamentarium introire volente eo facere testamentum vel mutare, divus Hadrianus constituit denegari ei debere actiones denegatisque ei actionibus fisco locum fore. 1Si dominus dolo fecerit, ne testamentum mutaretur, in quo servus eius scriptus erat, quamvis manumissus adierit hereditatem, actiones ei denegantur, cum et liberis eius si quid fuerit datum, denegari debeat, etsi non fuerint in potestate. sed si legatum ei relictum sit idque restituere sit rogatus, consequens erit dicere admitti eum ad legatum, quod non ipse habuisset, sed ad alium sit translaturus. 2Si plures heredes instituti sint et omnes dolo fecerint, quo minus testamentum mutaretur, dicendum est actiones omnibus denegari, quia omnes dolo fecerunt.

1Ulpianus, On the Edict, Book XLVIII. The Divine Hadrian decreed that if anyone, while endeavoring to obtain possession of an estate to which he was entitled either by descent or by will, should prevent a person from entering, who had been sent for, either to draw up a will which the testator desired to execute, or to change one already made, he shall be denied the right to bring any action, and when this is done, the Treasury will be entitled to the estate. 1Where a master acting in bad faith prevents a will from being changed by which his slave had been appointed heir, even though, having been manumitted, the latter should enter upon the estate, he shall be denied all rights of action, and his children, if anything has been left to them, shall also lose their rights, even though they are not under his control. Where, however, a legacy has been left to the master in trust, and he is requested to pay it, it must be said that he can receive the legacy, since he himself is not entitled to it, but it must be transferred to another. 2Where several heirs have been appointed, and all of them are guilty of bad faith in preventing a will from being changed, it must be said that rights of action shall be refused all of them, because all have acted fraudulently.

2Paulus libro quadragensimo quarto ad edictum. Si quis dolo malo fecerit, ut testes non veniant, et per hoc deficiatur facultas testamenti faciendi, denegandae sunt actiones ei qui dolo fecerit, sive legitimus heres sit sive priore testamento scriptus. 1Fratris autem factum fratri non nocet. 2Si fidei eius qui dolum admisit commissum est, ut hereditatem restitueret: ea hereditas caduca cum suis oneribus fiet, ut commodum legis Falcidiae fiscus sentiat, dodrantis autem fideicommissarius.

2Paulus, On the Edict, Book XLIV. Where anyone acts in bad faith in order to prevent the appearance of witnesses to a will, and by this means the power of making the will is lost, all rights of action shall be refused to the party responsible for the fraud, whether he is the heir-at-law, or was appointed under a former will. 1The act of a brother, however, under these circumstances, does not injure his brother. 2Where he who committed the fraudulent act was charged with the transfer of the estate, it will be forfeited with all liabilities, so that the Treasury will obtain the benefit of the Falcidian Law, and the beneficiary of the trust will receive three-fourths of the estate.

3Papinianus libro quinto decimo responsorum. Virum, qui non per vim nec dolum, quo minus uxor, contra eum mutata voluntate, codicillos faceret, intercesserat, sed ut fieri adsolet, offensam aegrae mulieris maritali sermone placaverat, in crimen non incidisse respondi, nec ei quod testamento fuerat datum auferendum.

3Papinianus, Opinions, Book XV. Where a husband does not, by employing either force or fraud, interfere to prevent his wife from changing, by means of a codicil, a will which she had made in his favor but (as often happens), merely attempts to appease the anger of his wife by marital remonstrances; I gave as my opinion that he was not guilty of any offence, and should not be deprived of what had been given him by the will.