CASE 169: Children Inherit from Mothers*
Tituli ex Corpore Ulpiani 26.7
Ad liberos matris intestatae hereditas ex lege duodecim tabularum non pertinebat, quia feminae suos heredes non habent: sed postea imperatorum Antonini et Commodi oratione in senatu recitata id actum est, ut sine in manum conventione matrum legitimae hereditates ad filios pertineant, exclusis consanguineis et reliquis agnatis.
(Excerpts from Ulpian’s Writings)
By the Law of the Twelve Tables the inheritance of an intestate mother did not go to her children, because women do not have sui heredes. But later, through a proposal of the Emperors Marcus Aurelius and Commodus that was delivered in the Senate, it was enacted that, without their entering into manus, the statutory inheritance from mothers goes to their children, while their blood relatives and other agnates are excluded.
1. The Senatusconsultum Orphitianum. This statute, enacted by the Senate in A.D. 178 (though the Case refers to the speech from the throne proposing it), raised children from the third praetorian class (unde cognati) into the second (unde legitimi), but on a far more generous basis than the SC Tertullianum: children were given priority over all members of their mothers family. The concrete result was that if a woman died intestate and was survived only by a brother and a daughter, her brother (as nearest agnate) took her entire estate before the SC Orphitianum, and her daughter took the entire estate after it. The mother did not have to possess the ius liberorum; further, the same privilege was extended also to freedwomen (see Ulpian, D.
38.17.1 pr.). Why was this statute more liberal than the SC Tertullianum? Does it necessarily reflect a sea change in attitudes about the Roman family?2. Different Marriages. Modestinus (D. 38.17.4) observes: “The rule is that all her children are eligible for a deceased mothers estate on intestacy, even if they are the product of different marriages.” What are the implications of this statement? Paul (D. 38.17.6 pr.) says that even a child in someone else’s potestas is eligible. Because a mother, like any woman, cannot wield patria potestas, what does Paul seem to mean? Do you see the relation to Modestinus’s opinion? What problems might arise here?
3. Illegitimate Children. Ulpian (D. 38.17.1.2) extends eligibility to illegitimate children, but without giving an explanation. Is it likely that he is simply reasoning from the general irrelevance of patriapotestas under this statute? Is the rationale here the same as that which permitted a mother to succeed to her illegitimate children under the SC Tertullianum?