CASE 173: Pupillary Substitution*
Gaius, Institutiones 2.179
Liberis nostris impuberibus, quos in potestate habemus, non solum ita, ut supra diximus, substituere possumus, id est, ut si heredes non extiterint, alius nobis heres sit; sed eo amplius ut, etiamsi heredes nobis extiterint et adhuc impuberes mortui fuerint, sit iis aliquis heres, velut hoc modo: “Titius filius meus mihi heres esto.
si filius meus mihi erit et is prius moriatur quam in suam tutelam venerit, tunc Seius heres esto.”(Gaius in the second book of his Institutes)
For our children whom we have in power and who are not yet adult (impuberes), we can make a substitution not only in the way we just described—that is, if there are no heirs, that someone else be our heir—but in addition as follows, that even if they become our heirs and then die while still minors, someone else is heir to them.
This is done as follows: “Let my son Titius be my heir. If my son does not become my heir, or if he becomes my heir and dies before reaching the age of legal majority, then let Seius be my heir.”
1. Genus and Species. Is it more correct to view pupillary substitution (from pupillus, Latin for minor-age child) as a subtype of common substitution, or is it something entirely different? As Gaius later observes (2.181), pupillary substitutions were often made, not in the primary will, but in separate documents annexed to it and opened only if the minor died, “in order to prevent the minor from being exposed to foul play after his father's death.” What sort of dangers did the father fear?
2. How Many Wills? Pupillary substitution is the only instance in Roman law where one person is allowed to make testamentary dispositions for another.
Gaius (Inst. 2.180) says: “For this reason there are, in a sense, two wills, one the fathers and one the son's, as if the son named an heir for himself; or at any rate there is one will for two inheritances.” Which of these two descriptions more accurately represents pupillary substitution? In Gaius's model wording, is the substitute heir an heir to the testator or an heir to the pupillus?3. Minor-Age Children. The age of legal majority was fourteen for boys and twelve for girls, and these were the legal minimums for marriage (Cases 6-7). Children under these ages who were legally independent (sui iuris) had a tutor or guardian to supervise their property (Chapter VA.1), and also, by law, they could not make a will for themselves. Could a testator grant them that power? That is, could a testator alter the general legal rule for his own children?
4. Heir in Suspension? Is there a sense in which the pupillus becomes a true heir only upon reaching the age of legal majority?
Cicero, De Oratore 1.180
Quid vero? clarissima M'. Curii causa Marcique Coponii nuper apud centumviros, quo concursu hominum, qua exspectatione defensa est! cum Q. Scaevola, aequalis et collega meus, homo omnium et disciplina iuris civilis eruditissimus, et ingenio prudentiaque acutissimus, et oratione maxime limatus atque subtilis, atque, ut ego soleo dicere, iuris peritorum eloquentissimus, eloquentium iuris peritissimus, ex scripto testamentorum iura defenderet, negaretque, nisi postumus et natus, et, antequam in suam tutelam venisset, mortuus esset, heredem eum esse posse, qui esset secundum postumum, et natum, et mortuum, heres institutus: ego autem defenderem, hac eum tum mente fuisse, qui testamentum fecisset, ut, si filius non esset, qui in tutelam veniret, M'.
Curius esset heres. Num destitit uterque nostrum in ea causa, in auctoritatibus, in exemplis, in testamentorum formulis, hoc est, in medio iure civili, versari?(Cicero in the first book On the Public Speaker)
“Finally, there is the illustrious case of Manius Curius and Marcus Coponius, which was recently heard before the Court of One Hundred—what a crowd of people, what anticipation!
“Quintus (Mucius) Scaevola, my contemporary and colleague, a man who knows more than anyone about the ius civile, whose talent and judgment are very keen, whose speaking style is especially refined and exquisite, and who is, as I often say, the best public speaker among jurists and the best jurist among public speakers, defended interpreting wills in accordance with their words and claimed that if a man was appointed as substitute heir to a posthumous child who is born and then dies, he cannot inherit unless the posthumous child was (actually) born and then died before reaching the age of legal majority.
“I, on the other hand, argued that the testator, when he made the will, had intended that if he had no child who reached the age of legal majority, Manius Curius would be his heir. During this case, did either one of us cease being immersed in jurists’ decisions, precedents, testamentary formulas, that is, in the heart of the ius civile?”
Hypothetical Situation
Marcus Coponius makes a will in which he names his posthumous child as his heir and then names Manius Curius as a substitute heir to this child. Coponius then dies, but his wife miscarries before giving birth to the child. Can Curius claim the estate, or does the will fail and the estate go to the intestate heirs?
1. Postumi.
Posthumous children (postumi), that is, children conceived before but born after the testators death, were protected under the rules for both testate and intestate succession in much the same way as other sui heredes. Thus, for instance, failure to disinherit a posthumous child would invalidate the entire will (Case 182). In this Case, Coponius, evidently aware that his wife was pregnant, instituted his posthumous child as his heir. Granted the very high levels of infant mortality that prevailed in the Roman world, does it make sense that Roman law allowed him also to make pupillary substitution for the postumus? What legal problem arose when Coponius's wife failed to give birth to the anticipated posthumous child?2. Words versus Will. In this dialogue of Cicero, the speaker is M. Licinius Crassus, a renowned orator of the early first century B.C. and one of Ciceros teachers. Crassus is here speaking about an actual trial in the late 90s B.C., in which he had represented Curius against the intestate heirs, who in their turn had retained Q. Mucius Scaevola, a famous and exceptionally talented Roman jurist of the time. One reason this trial is so notable is that it seems to pose a classic contrast between the claims of the literal sense of the testamentary document, the will, and those of the testators intent. Reconstruct the arguments for both sides. Which seems stronger? Is the jurist right to place on the testator the heavy burden of expressing his intent in language that is both clear and legally proper? On the other hand, if we incline to look beyond the plain meaning of the words, how certain can we then be that we have correctly grasped a writers intent? What are the larger implications of this dispute for the law of testamentary succession?
3. Common Substitution within Pupillary? The victorious Curius, represented by Crassus, in essence made the argument that a pupillary substitution necessarily implies a common one, at least in this particular case. Scaevola was evidently unpersuaded.
Are you? The issue remained controversial until the Emperor Marcus Aurelius finally settled it in the second century A.D. (Modestinus, D. 28.6.4 pr.). Guess which side won.D. 28.6.2.4 (Ulpianus libro sexto ad Sabinum)
Prius autem sibi quis debet heredem scribere, deinde filio substituere et non convertere ordinem scripturae: et hoc lulianus putat prius sibi debere, deinde filio heredem scribere: ceterum si ante filio, deinde sibi testamentum faciat, non valere. quae sententia rescripto imperatoris nostri ad Virium Lupum Britanniae praesidem comprobata est, et merito: constat enim unum esse testamentum, licet duae sint hereditates, usque adeo, ut quos quis sibi facit necessarios, eosdem etiam filio faciat et postumum suum filio impuberi possit quis substituere.
(Ulpian in the sixth book on Sabinus)
Moreover, a person ought to put down an heir for himself first and then name a substitute for his child, and not reverse the order of writing. Julian also thinks that he (the testator) ought first to name an heir for himself, then a substitute for his child; but if he makes a will for his child first, then one for himself, they are (both) invalid.
This opinion was approved by a rescript of our emperor (Caracalla) to Vir- ius Lupus, the governor of Britain; and rightly so, since the consensus is that there is one will even though there are two inheritances, to the point that someone who creates necessary heirs for himself creates them also for his child, and someone can substitute a posthumous suus heres for a prepubescent child.
1. Disinheriting the Pupillus. As this Case makes clear, the testator can name a substitute for a pupillus even if he disinherited the child.
Does this seem fair? Do the same justifications apply here as for pupillary substitution where the pupillus is primary heir?2. The Last Shall Be First. Why do Julian and Ulpian insist that the primary heir be placed first, that is, before the pupillary substitution? The penalty for failure to do so is invalidation of the will, as the text makes clear. Are the jurists being too fussy? Note that, as a general principle, a pupillary substitution is invalid unless a primary will is made.
3. Necessary Heirs. A necessary heir is a special type of heir, a slave who is manumitted and named heir. As a necessarius, he or she is compelled to accept the inheritance, even if it is burdened by debt. Elsewhere, Ulpian (D. 28.6.10.1) indicates that making the testators necessarius the substitute for the pupillus as well was an option, not an automatic consequence. Do provisions such as this, or making the postumus a substitute for the minor child, tie the “two inheritances” together into one will?
4. How Many Wills? Ulpian, against Gaius, cites a consensus that in this instance there is just one will in the case of pupillary substitution, not two. In light of the arguments he makes, do you find this view persuasive?
D. 28.6.16.1 (Pomponius libro tertio ad Sabinum)
Si suo testamento perfecto alia rursus hora pater filio testamentum fecerit adhibitis legitimis testibus, nihilo minus id valebit et tamen patris testamentum ratum manebit. nam et si sibi et filio pater testamentum fecisset, deinde sibi tantum, utrumque superius rumpetur. sed si secundum testamentum ita fecerit pater, ut sibi heredem instituat, si vivo se filius decedat, potest dici non rumpi superius testamentum, quia secundum non valet, in quo filius praeteritus sit.
(Pomponius in the third book on Sabinus)
If a father makes a will for himself and subsequently makes a will for his son with the legally appropriate witnesses, this (the son’s will) is still valid even though the father’s will remains in force.
For also, if the father had made a (single) will for (both) himself and for his son, and later (he made a will) only for himself, both the earlier provisions are broken.
But if a father makes a second will so as to institute an heir to himself if his son dies during his (the father’s) life, it can be held that the earlier will is not broken, because the second one, in which the son was passed over in silence, is invalid.
1. Dueling Wills. It is a fixed rule of Roman law that when someone makes a legally valid will, this automatically cancels all previous wills (see Case 178). In the first hypothetical situation, why doesn't that happen when the father makes a subsequent will for his son? Does Pomponius seem to agree with Gaius (Discussion to Case 173) that pupillary substitution involves two distinct wills, or with Ulpian (Case 175) that it involves only one?
2. The Dependency of Pupillary Substitution. In the second hypothetical situation, the fathers second will named an heir and a substitute for himself but (unlike the first) did not include a pupillary substitution. Do you think that the father supposed his earlier pupillary substitution would remain in force? The problem is that his second will effectively canceled his first will, and a pupillary substitution is always dependent on the existence of a valid fathers will. See Tit. Ulp. 23.9: “No one can substitute an heir for a minor son unless he names an heir for himself, either the son himself or a third party.” Why this rule?
3. Invalidity of a Subsequent Will. However, if the subsequent will is not legally valid, the prior will remains in force. As it seems, the pater in the third hypothetical situation simply wrote: “Let X be my heir if my son predeceases me.” Does it seem likely that he simply wanted to supplement his earlier will? What should he have done to make the supplement effective? Since the son is mentioned in the condition, why does Pomponius say that he was passed over in silence?