CASE 177: Privileged Heirs*
D. 28.2.11 (Paulus libro secundo ad Sabinum)
In suis heredibus evidentius apparet continuationem dominii eo rem perducere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo domini existimantur.
unde etiam filius familias appellatur sicut pater familias, sola nota hac adiecta, per quam distinguitur genitor ab eo qui genitus sit. itaque post mortem patris non hereditatem percipere videntur, sed magis liberam bonorum administrationem consequuntur. hac ex causa licet non sint heredes instituti, domini sunt: nec obstat, quod licet eos exheredare, quod et occidere licebat.(Paul in the second book on Sabinus)
In the case of privileged heirs (sui heredes), continuity of ownership has the rather obvious consequence that there appears to be no actual inheritance, rather as if they were long since owners. In a sense, they are regarded as having owned while the father was still alive. For this reason a son-in-power (filius familias) is even named like a pater familias, a qualification being added only to distinguish parent from offspring.
Therefore, after the death of the father, they (the sui heredes)style='font-weight:bold'> are not regarded as acquiring an inheritance; instead, they (just) attain unobstructed power to dispose over their property. For this reason, even though they have not been instituted as heirs, they are owners. Nor is it an objection that it is permitted to disinherit them, for it was also (once) permitted to kill them.
1. Sui Heredes.
The “privileged heirs” (sui heredes) are those who became legally independent (sui iuris) at a testators death. One way these heirs were privileged was that, for a will to be valid, such persons had to be made heirs or expressly disinherited. How does Paul attempt to justify this? In light of what you know about the property rights of children-in-power, are you convinced by his argument that the sui heredes were quasi owners of the estate even before the testators death? Is it any more persuasive to observe that a son and father share the same name?2. Heirs and Owners. What does Paul mean when he describes the sui as owners rather than heirs? Is he saying that they are not just the presumptive but the default owners of the decedents property, and that they remain so unless and until they are disinherited and a more qualified heir—more qualified because duly instituted by the testator—takes the inheritance?
3. The Vitae Necisque Potestas. What is Paul getting at in the last sentence? Is he saying that a right or privilege that is not exercised has no weight? Is this sentence reconcilable with Cases 90-93 on a fathers right to kill his children? Note Paul's careful use of the past tense.
Tituli ex Corpore Ulpiani 23.1-4
(1) Testamentum iure factum infirmatur duobus modis, si ruptum aut inritum factum sit. (2) Rumpitur testamentum mutatione, id est si postea aliud testamentum iure factum sit. item agnatione, id est, si suus heres agnascatur, qui neque heres institutus neque ut oportet exheredatus sit. (3) Agnascitur suus heres aut agnascendo aut adoptando aut in manum conveniendo aut in locum sui heredis succedendo, velut nepos mortuo filio vel emancipato, aut manumissione, id est si filius ex prima secundave mancipatione manumissus reversus sit in patris potestatem.
(4) Inritum fit testamentum, si testator capite deminutus fuerit, aut si iure facto testamento nemo extiterit heres.(Excerpts from Ulpian’s Writings)
(1) A will that was legally made is invalidated in two ways: if it is broken or rendered ineffectual.
(2) A will is broken by (subsequent) change, that is, if another will is legally made; and also by accession (of subsequent sui heredes), that is, if a suus heres accedes who is neither instituted an heir nor disinherited as is required.
(3) A suus heres accedes either by birth or by adoption or by entry into manus (a manus marriage) or by succeeding into the place of a suus heres, like a grandson when a son dies or is emancipated, or by manumission, that is, if a son has been manumitted after the first or second mancipation and has returned to his father’s power.
(4) A will is rendered ineffectual if the testator undergoes loss of status (capitis deminutio) or if there is no heir under a legally made will.
1. Accession of Subsequent style='font-style:italic'>Sui Heredes. This postclassical source summarizes classical Roman law (compare Gaius, Inst. 2.130-134, which, unfortunately, is defectively preserved). The crucial rule is stated in section 2: a will is “broken” (ruptum), that is, entirely void, if it does not either institute or disinherit a suus heres, including a person who becomes a suus heres after the writing of the will. Accession of a suus heres can occur in several ways: birth of a new suus (including posthumous children); adoption; manus marriage; and succession into the place of a suus.
In each case, the addition of a new suus seems to require a new will. The rule seems to be the starting point for classical law, although, as we shall see, it was somewhat modified by legislation and juristic interpretation. Why might the rule ever have come into existence? That is, what are its purposes?2. Birth. This includes cesarean section, says Ulpian (D. 28.2.12), who adds that the will is broken even “if a defective creature is born, so long as it breathes.” Ghoulish excess?
3. Subsequent Death. A child who would be a suus is born after a will is made but then dies before the testators death. Is the will, which ignores the child, broken? No, says Ulpian (D. 28.3.12 pr.); but it took imperial rescripts to thwart “the strict observance of law.”