CASE 160: An Unwilling Heir*
D. 38.16.1.8 (Ulpianus libro duodecimo ad Sabinum)
Sciendum est autem nepotes et deinceps interdum, etiamsi parentes eos mortis tempore praecesserunt, tamen posse suos heredes existere, quamvis successio in suis heredibus non sit.
quod ita procedit. si pater familias testamento facto decesserit exheredato filio, mox deliberante herede instituto filius decessit, postea deinde repudiavit heres institutus: nepos poterit suus heres esse, ut et Marcellus libro decimo scripsit, quoniam nec delata est filio hereditas. idem erit dicendum et si filius ex asse sub condicione, quae fuit in arbitrio ipsius, vel nepos sub omni institutus non impleta condicione decesserint: nam dicendum erit suos posse succedere, si modo mortis testatoris tempore vel in rebus humanis vel saltem concepti fuerint: idque et Iuliano et Marcello placet.(Ulpian in the twelfth book on Sabinus)
Further, one should recognize that sometimes grandsons and their descendants can count as sui heredes even if their fathers take precedence over them at the time of (their grandfather’s) death although no succession has yet occurred among the sui.
This is how it comes about. A pater familias died after having made a will disinheriting his son; then, while the heir he appointed in his will was deliberating (whether to accept the inheritance), the (disinherited) son (also) died. The appointed heir subsequently declined to accept. Since the estate was not offered to the son, the grandson can be a suus heres (under these circumstances), as Marcellus also wrote in the tenth book (of his Digests).
The same rule will also hold true if the son is appointed sole heir under a condition it was in his power to fulfill, or a grandson under any condition, and he died before fulfillment (of the condition). For it will have to be held that their sui can succeed, provided that at the time of the testator’s death they were alive or at least conceived. And this was the view of both Julian and Marcellus.
1. Express Disinheritance. In Ulpian's first hypothetical case, note the precise series of events: the pater died; his will disinherited his son; then, while the heir named in the will dithered about acceptance, the disinherited son died; the testamentary heir finally declined the estate, thus rendering the will ineffective. In this precise sequence of events, a grandson by the disinherited son would be a suus heres even though he was not one at the time of his grandfather's death. Would the result have been the same if the son had died, not after, but before his father died? If he had died after the appointed heir declined the inheritance?
2. Explaining the Paradox. Ulpian and his predecessors are arguing a paradox, namely that the son's ineligibility for the estate makes the grandson eligible. Do you see how this is so? Does the paradox in turn help you to understand the rationale in the second hypothetical situation, involving nonfulfillment of conditions? In this instance, a will appointed the son or grandson heir, but under a condition that had not been fulfilled at the time of the would-be heir's death; accordingly, his sui became eligible. (On the distinction between the son and the grandson, see Tryphoninus, D. 28.2 28 pr.: if sons were instituted heirs under a condition, it had to be within their power to fulfill the condition.)
3. Policy behind the Paradox. Why do you think the jurists construct such an intricate argument here? Whose interests are they ultimately trying to protect?
4. Limits to (Il)logic. Why does Ulpian insist that the suus heres of the son or grandson must at least have been conceived at the time of the testator's death?
5. Another Opinion? As often, Ulpian's citation of his predecessors may suggest that the jurists disagreed about the issue he is discussing. The compilers of the Digest may have suppressed another view. Can you reconstruct it?