CASE 162: Emancipated and Disinherited
D. 38.6.1.9 (Ulpianus libro quadragensimo ad edictum)
Si emancipatus filius exheres fuerit, is autem qui in potestate fuerat praeteritus, emancipatum petentem ab intestato bonorum possessionem unde liberi tueri debet praetor usque ad partem dimidiam, perinde atque si nullas tabulas pater reliquisset.
(Ulpian in the forty-sixth book on the Edict)
An emancipated son was expressly disinherited (in a testator’s will), while his son-in-power was passed over in silence. If the emancipated child seeks bonorum possessio upon intestacy in the class for children (lang=EN-US style='font-style:italic'>unde liberi), the praetor ought to protect his interests up to the limit of one-half the estate, just as if his father had left no will.
Hypothetical Situation
A pater familias had one child, a son whom he emancipated; he also disinherited this son in his will and left his estate to a distant relative. Subsequently, his wife bore him another son, but through inadvertence he did not then change his original will. On his death, does the emancipated son have a claim to the estate?
1. Exploiting a Loophole. Why did the fathers will fail? A will is invalid if it does not either institute a suus heres as heir or disinherit him (Case 178). Therefore, the rules for intestate succession came into play. The emancipated son advances his claim for bonorum possessio under the praetorian rubric unde liberi. Did he have a claim under the older ius civile? Why is he entitled to one- half of his father's property?
2. The Testator’s Interest.
In this Case, the testators wishes are thwarted: the son takes half despite having been expressly disinherited. Did those who made law at Rome suppose that, on the whole, the rules of intestacy did a better job of distributing private estates than did testators themselves? Or is this just a penalty that a testator may have to pay for failing to follow correct procedure? If so, why might lawmakers have insisted that wills follow a prescribed form? This issue will resurface constantly throughout the present chapter.3. The Grandchildren’s Interest. A man dies without a valid will, and his emancipated son fails to claim bonorum possessio on intestacy. Do the son's children have a claim? See Pomponius, D. 38.6.5.2 (yes). How can this be explained?
D. 38.6.5 pr. (Pomponius libro quarto ad Sabinum = Ulpian, D. 37.8.1 pr.)
Si quis ex his, quibus bonorum possesionem praetor pollicetur, in potestate parentis, de cuius bonis agitur, cum is moritur, non fuerit, ei liberisque, quos in eiusdem familia habebit, si ad eos hereditas suo nomine pertinebit neque nominatim exheredes scripti erunt, bonorum possessio eius partis datur, quae ad eum pertineret, si in potestate permansisset, ita, ut ex ea parte dimidiam habeat, reliquum liberi eius, hisque dumtaxat bona sua conferat.
(Pomponius in the fourth book on Sabinus)
If any of those persons to whom the praetor promises bonorum possessio is not in the power of the parent whose estate is in question at the time of his death, to this person and to any children whom he will have in the decedent’s familia, provided that the inheritance will go to them in their own names and they will not have been expressly disinherited, bonorum possessio is given of that share which would go to him had he remained in (the decedent’s) power, on the following terms: he has half of that share, the children the remainder, and he brings his own property into contribution with them.
Hypothetical Situation
A pater familias has two sons in power, Gaius and Titus. He emancipates Titus but retains in his power Titus's two daughters (see Case 155).
The pater familias then dies intestate. Can Titus successfully sue for a portion of the estate?1. The Statutory Solution. In the statutory (prepraetorian) law of intestate succession, the emancipated son had no claim. The estate would have been divided on a stirpital basis: the son-in-power would take half, and the two granddaughters would each take a quarter.
2. The Praetorian Dilemma. As Cases 161-162 showed, the praetors reform permitted the emancipated son to sue for bonorum possessio, a share in the estate. But where should his share come from and how much is it? If the portion of the son-in-power is reduced, this would unfairly benefit the emancipated son's side of the family; but this son's two daughters, as sui heredes, are independently entitled to the estate, so it might also seem unfair that their father profit at their expense. A further potential inequity is that the emancipated son may in the meantime have accumulated wealth of his own; should this be taken into consideration in determining his share?
3. Julian’s Solution. The dense legislative language in this Case stems from the eminent jurist Julian (Marcellus, D. 37.8.3), who prepared the final version of the praetor's Edict; Julian seems to have come up with the solution. It goes as follows: The son who was in power receives his half share. The other son and his daughters get the rest, but the son must first contribute his own estate to their “pot,” of which he then receives half and the daughters divide the other half. Is this outcome “eminently fair” (so Ulpian, D. 37.8.1.1) or entirely artificial? See also Discussion 3 on Case 186.