CASE 168: Mothers Inherit from Children*
Tituli ex Corpore Ulpiani 26.8
Intestati filii hereditas ad matrem ex lege duodecim tabularum non pertinet: sed si ius liberorum habeat, ingenua trium, libertina quattuor, legitima heres fit ex senatus consulto Tertulliano, si tamen ei filio neque suus heres sit quive inter suos heredes ad bonorum possessionem a praetore vocatur, neque pater, ad quem lege hereditas bonorumve possessio cum re pertinet, neque frater consanguineus: quod si soror consanguinea sit, ad utrasque pertinere iubetur hereditas.
(Excerpts from Ulpian’s Writings)
By the Law of the Twelve Tables, a mother does not receive an inheritance from an intestate child. But if she has the “right of children” (ius liberorum)—(if she has borne) three (children) in the case of a freeborn woman, four for a freed- woman—she becomes a statutory heir because of the SC Tertullianum, provided that there is no suus heres to her son, nor anyone whom the praetor summons to bonorum possessio together with the sui heredes (i.e., the liberi), nor a father to whom by statute the inheritance or bonorum possessio comes, nor a blood brother (of the decedent; a brother from the same father). But if there is a blood sister, the statute orders that the inheritance go to both women.
1. The SC Tertullianum. This statute, from the reign of Hadrian (A.D. 117-138), promoted mothers who possessed the “right of children” to the rank of statutory heirs (legitimi), the second praetorian class; other mothers remained in the third class (cognati). Still, even a woman who was so privileged inherited only if an intestate heir could not be located among the decedents children, father, and brothers.
How big a privilege was this, in reality? Why was it given only to women who had borne several children? On the marriage legislation of Augustus, see Case 12.size=1 color=black face="Book Antiqua">2. The Position of Mothers. It was, as it seems, the statute itself that preferred a decedents children to his mother (Paul, D. 38.17.5 pr.-1). These children are preferred whether they are sui heredes or emancipated, whether male or female, and whether natural or adopted. Paul describes the statutory preference as “eminently fair” (aequissimum); why so? Is it equally fair that her son's father and brother be preferred to her? Is this pure sexism?
3. Births Out of Wedlock. Is the statutory privilege available even if the child was illegitimate? Ulpian (D. 38.17.2.1) says yes; why is this so, do you think? Is the privilege available even if the woman is “of ill repute” (famosa), for example, a prostitute or a procuress? See Ulpian, ibid. 4 (yes). What is the argument for including such women? Would the same argument hold for adulteresses? Bear in mind that adultery was against the law, while prostitution was not.