CASE 161: The Praetor's Rules*

D. 38.6.1.1-2 (Ulpianus libro quadragensimo ad edictum)

(1) Sed successionem ab intestato in plures partes divisit: fecit enim gradus varios, primum liberorum, secundum legitimorum, tertium cognatorum, deinde viri et ux­oris.

(Ulpian in the forty-sixth book on the Edict)

(1) But he (the praetor) split succession on intestacy into several parts by con­structing different classes: the first is that of children; the second, of statutory heirs; the third, of cognate relatives; and finally, that of husband and wife.

(2) Moreover, bonorum possessio on intestacy is made available if possession has not been claimed (by a third party) either in accordance with the terms of a will or contrary to them.

1.      Emancipation and Adoption. To a large extent, the urban praetor built on the system of the ius civile in constructing his own. For example, his first class of “children” (liberi) contained the sui heredes of the Twelve Tables, who could be adopted, as well as biological, children; but it also included children who had been emancipated, and even the children of an emancipated son who had previously died (Tit. Ulp. 28.7-8).However, children who had been adopted by another paterfamilias were not included. Why not?

2.      Children Preferred over Parents? The effect of the praetors innovation was to give first priority, in the law governing intestacy, to those children who were not irrevocably committed (as a result of their adoption) to some other household.

3.      The Statutory Heirs. After the liberi, the next group to be called are the statu­tory heirs (legitimi): the traditional sui heredes (already entitled in the first praetorian class) and the nearest agnate, plus some additional persons who became entitled under imperial legislation (see Section 2 below). The re­maining praetorian classes are examined in subsequent Cases. If no heir emerges either by testate or by intestate succession, the estate falls to the pub­lic treasury (Gaius, Inst. 2.150; Tit. Ulp. 28.7).

4.      Multiple Claims. Suppose that a man dies without a will and with only one child, a son-in-power. The son can claim in the first praetorian class (unde liberi); but if he misses the deadline, can he also claim as the closest agnate (proximus agnatus) in the second class (unde legitimi), and then, if necessary, also as a cognate relative in the third class (unde cognati)? Sure; Ulpian (D. 38.9.1.11) notes “the better view” that it would not matter even if he had re­fused the inheritance.

5.      Civil versus Praetorian Law. Oddly, at least to anyone unfamiliar with the quirks of the Roman legal tradition, the praetorian system did not in itself in­validate that of the ius civile. The praetor did not claim legal primacy for his system. Indeed, he did not pretend to make anyone heir, offering instead only possession of the estate (bonorum possessio) that might eventually ripen into ownership (Gaius, Inst. 3.32). When succession was intestate, however, his grant of possession, if it contradicted the older ius civile entitlements, tended to prevail because the praetors court was the only available mechanism for enforcement. The praetor also granted bonorum possessio in order to enforce wills or to provide equitable exceptions to their terms. Do you see how, in Ulpian's section 2, bonorum possessio on intestacy is effectively worked into, and subordinated to, the magistrates grant of possession in case of a will? In fact, however, the system that underlay these grants is extremely complex; we just skim the surface.