CASE 180: Disinheritance as an Advantage
D. 28.2.18 (Ulpianus libro quinquagesimo septimo ad edictum)
Multi non notae causa exheredant filios nec ut eis obsint, sed ut eis consulant, ut puta impuberibus, eisque fideicommissam hereditatem dant.
(Ulpian in the fifty-seventh book on the Edict)
Many persons disinherit their children, not to defame them nor to put them at a disadvantage, but in order to serve their interests. An example is prepubescent children (impuberes), to whom they give the inheritance in the form of a trust (fideicommissum).
1. The Trust (Fideicommissum). The trust was a common form of bequest among the Romans; it is discussed in Part C below. The form of will that Ulpian is discussing might take the following form: the testator disinherits his minor child and then appoints a third party, usually a close friend or relative, as his heir. The heir is then requested, on the basis of “trust” (fides), to convey the estate to the minor child. This method held advantages over instituting the minor directly, in that it avoided imposing on the minor many technical requirements and burdens in executing a will. Keep in mind also that an inheritance perhaps typically came with debts as well as assets, and the debts might be rather high; some estates were in the red.
2. Minor-Age Children. Why was the position of a minor-age child (impubes) considered particularly delicate? Who would handle the estate settlement for a minor? Might similar reasons motivate the disinheritance of an insane child? See also Ulpian, D. 38.2.12.2: in this situation, a child is not disinherited “with malice” (mala mente).
3. Who Benefits? In the other Cases you have read, do the jurists always take into account that disinheritance may be intended to benefit the suus heres?