CASE 179: Name Games*
D. 28.2.2 (Ulpianus libro sexto Regularum)
Nominatim exheredatus filius et ita videtur “filius meus exheres esto,” si nec nomen eius expressum sit, si modo unicus sit: nam si plures sunt filii, benigna interpretatione potius a plerisque respondetur nullum exheredatum esse.
(Ulpian in the sixth book of his Rules of Law)
A son is held to have been disinherited by name even in the following way: “Let my son be disinherited.” This works even though his name is not expressly stated, provided he is an only son; for if there is more than one son, most jurists, using a generous interpretation, respond that no one has been disinherited (by such a phrase).
1. More Equal.
Some of the sui heredes are more privileged than others; a will failed unless a testators sons were disinherited by name, whereas the rest could be disinherited generically (“Let all others be disinherited”). Why are sons singled out for this privilege? Granted the privilege, is it fair to uphold disinheritance when a son is referred to but not expressly named?2. “My Son, the Bastard.” Always assuming that it is clear to whom he refers, can a testator use more elaborate circumlocutions in disinheriting a son? What if the testator referred to his son as “Seia's boy” (using his mother's name)? What if he used an abusive description: “the unspeakable one,” “the bandit,” “the gladiator,” “the bastard”? Ulpian (D. 28.2.3 pr.-1) permits disinheritance in all these cases. But Africanus (D.
28.2.14.2) cites Julians dissenting view with regard to “he who is not my son”: the father is not disinheriting his son as his son but as someone else's son, and for this reason the wording fails. (See also Ulpian, D. 37.10.1.9.) Do you agree?3. False Accusations. When a testator gives a reason, especially an abusive reason, for disinheriting a son, what if the allegation is untrue? Can the son overthrow the will by disproving the allegation? Africanus, in the passage cited above, says yes; Ulpian (D. 28.2.15) says the same, and some other sources are to the same effect. If the testators charges can be contested, would he have been better advised to hold his tongue? But there are also dangers to this course, as we shall see in Section 4 below.
4. lang=EN-US style='font-weight:bold'>Improper Reasons. Does a son have recourse if he is disinherited because he disobeyed his father's command to divorce his wife? See Cases 104-107 and also Diocletian and Maximian, C. 3.28.18 and 20 (A.D. 286, 294), which allow a lawsuit for an “undutiful will” (Section 4 below).
5. Generosity to a Fault. Who benefits from the “generous” interpretation in the last sentence of this Case? Suppose the testator had actually wanted to disinherit all of his sons. Was he obliged to name them all? In interpreting ambiguous wills, should law favor the living over the dead?