CASE 166: Son-in-Power as Cognate

D. 38.6.8 (Papinianus libro sexto Responsorum)

Filius familias ut proximus cognatus patre consentiente possessionem adgnovit: quamvis per condicionem testamento datam, quod in patris potestate manserit, ab hereditate sit exclusus, tamen utiliter possessionem adgnovisse videbitur nec in edicti sententiam incidet, quoniam possessionem secundum tabulas non adgnovit, cum inde rem habere non potuerit nec in filii potestate condicio fuerit nec facile pater emancipare filium cogi poterit.

(Papinian in the sixth book of Responses')

With his father’s permission, a son-in-power claimed bonorum possessio as the closest cognate.

name=bookmark915>1.      Father’s Permission. The testator, probably a relative through the son's mother (but see Papinian, D. 29.4.27.1), was willing to leave the son an in­heritance only if the son was no longer in his fathers power (see the Discus­sion on Case 155). The will named the son heir on the condition that he be sui iuris; but his father failed to emancipate his son, who therefore did not claim the inheritance.

2.      The Testator’s Wishes. Why should the son-in-power take the inheritance through intestate succession when this flies directly in the face of the testators wishes? What could the testator have done to avoid this result? (See below, Part C.2.)

3.      The Praetor and Wills. This Case indicates the complex role played by the praetor in the law of succession. Even though the son-in-power was named an heir, he did not apply for praetorian bonorum possessio in accordance with the will (secundum tabulas) because he did not meet the will's condition; that is, the praetor can enforce wills by awarding possession of the estate to the heirs named in them. But if the will is manifestly inequitable in certain ways, the praetor can also award possession contrary to the will (contra tabulas), a legal recourse that leaves some provisions of the will intact while invalidating others. Finally, the praetor also awards possession to heirs on intestacy (ab in­testate) when there is no will or the will fails, as in this Case. As you read other Cases, keep this complexity in mind.

D. 38.11.1 (Ulpianus libro quadragensimo septimo ad edictum)

(pr.) Ut bonorum possessio peti possit unde vir et uxor, iustum esse matrimonium oportet. ceterum si iniustum fuerit matrimonium, nequaquam bonorum possessio peti poterit, quemadmodum nec ex testamento adiri hereditas vel secundum tabu­las peti bonorum possessio potest: nihil enim capi propter iniustum matrimonium potest.

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

(pr.) A legitimate marriage is necessary to claim bonorumpossessio in the class for husband and wife (unde vir et uxor). But if the marriage is illegitimate, bonorum possessio cannot be successfully claimed, and similarly the inheritance cannot be entered on the basis of the will nor can bonorum possessio be sought in accord with the will (secundum tabulas). In sum, nothing can be taken on the basis of an illegitimate marriage.

(1) Moreover, for bonorum possessio to be available, she must be a wife at the time of death. But if a divorce has transpired, but the marriage still legally exists, this rule of succession is inoperative. That occurs in situations of the following kind. When a freedwoman divorces her unwilling patron, the lex Iulia on status­appropriate marriage keeps her in the married state (at least) to the extent that it prevents her from marrying someone else against her patron’s will. Likewise, the lex Iulia on adultery treats a divorce as invalid unless it has been carried out in a prescribed way.

1.      Legitimate Marriage. Ulpian privileges fully legitimate marriage over unions that are not completely legally valid (though they may be viewed by the par­ticipants and others as marriage).

2.      Marriage after Divorce. Ulpian notes two anomalous instances in which mar­riage continues after divorce. Augustus, in an effort to encourage nonsenato- rial Romans to marry freedwomen, allowed patrons who had manumitted slaves for this purpose to have an effective veto over unilateral divorce by the woman (see the Discussion on Case 14). His law on adultery also provided a formal procedure for divorce, which was probably required (though this is far from clear) in cases of manifest adultery (see Case 54 and the Discussion on Case 78). Why does Ulpian rule out intestate succession in such cases?

3. The Precarious Position of Spouses. Under praetorian rules, upon intestacy, a wife inherits from her husband, or he from her, only in the fourth class, if no other intestate heir is forthcoming. From a modern perspective, this is ex­tremely odd. Should this rule be understood as a carryover from the fairly rigid rules separating the property of the two spouses during their marriage? See Case 56. Plainly, in many circumstances the economic position of a sur­viving spouse might be tenuous unless provision had been made in advance; and this insecurity is likely to have affected women more than men. Are you now better prepared to understand why questions such as the return of dowry (Chapter II.D.2) were so important in Roman law? But many hus­bands, dissatisfied with mere return of dowry, made separate provision for their wives in their wills by giving them a bequest of a usufruct (usually a life estate) in all or part of their property (Case 203). What is interesting here is how deficiencies in the law of intestate succession may have impelled many Romans, particularly in the upper classes, to write wills. Is that a desirable legal outcome? All things considered, is it a good or a bad thing if as many decedents as possible die with a will?