CASE 181: Partial Disinheritance

D. 28.2.19 (Paulus libro primo ad Vitellium)

Cum quidam filiam ex asse heredem scripsisset filioque, quem in potestate habebat, decem legasset, adiecto “et in cetera parte exheres mihi erit,” et quaereretur, an recte exheredatus videretur, Scaevola respondit non videri, et in disputando adiciebat ideo non valere, quoniam nec fundi exheres esse iussus recte exheredaretur, aliamque causam esse institutionis, quae benigne acciperetur: exheredationes autem non essent adiuvandae.

(Paul in the first book on Vitellius)

A certain man had written (in his will) that his daughter was to be heir to his en­tire estate.

Scaevola responded that he did not think so, and in a discussion he also added that the disinheritance was invalid because a person cannot be correctly disinherited with regard to a farm. He distinguished the situation where an heir was instituted, which would be construed generously. Disinheritance, however, should not be promoted (through interpretation).

1.      An Ambiguous Will? Try to reconstruct the relevant terms of the will as Paul gives them. Is the phrase at issue ambiguous? Is the testators intent unclear? What should he have written?

2.      Disinheritance from a Farm.

3.      Policy and Logic. With this Case, compare Ulpian, D. 28.5.1.4: “If someone was instituted sole heir ‘to a farm,' the institution is valid; the mention of the farm is excised” (i.e., effectively ignored). This is a “generous” interpretation because, as a rule, a person must be named sole or partial heir to an entire in­heritance, not to discrete property within it. (The property can be separately left as legacies; see below Part C; but first there must be an heir.) Why does Scaevola (and evidently Paul) believe that juristic interpretation should be generous in support of instituting heirs but neutral, or perhaps even restric­tive, with regard to disinheritance? Does such a policy do violence to the op­eration of legal logic in this Case?

D. 28.2.10 (Pomponius libro primo ad Sabinum)

Commodissime is qui nondum natus est ita heres instituitur: “sive vivo me sive mortuo natus fuerit, heres esto,” aut etiam pure neutrius temporis habita mentione. si alteruter casus omissus fuerit, eo casu, qui omissus sit, natus rumpit testamen­tum, quia hic filius nec sub condicione quidem scriptus heres intellegitur, qui in hunc casum nascitur, qui non est testamento adprehensus.

(Pomponius in the first book on Sabinus)

A person who is not yet born is quite conveniently instituted an heir in the fol­lowing way: “whether he be born when I am alive or after I am dead, let him be heir.” Or even unconditionally, with no mention of either time period.

If one or the other of these situations (the testator being either still alive or dead) is omitted, and a child is born in the situation that was omitted, he breaks the will.

1.      The Unborn Child and the Will. Any child born after the writing of a will still counts as a suus (unless subsequently deceased, emancipated, adopted, or given in marriage with manus). Thus, if in a will such a child is not named heir or disinherited, the will is rendered invalid. Given that abortion was not illegal, and that the pater familias might decide to abandon or even kill his newborn child, what do you make of this protection extended to the unborn child?

2.      The Postumus Problem. As Pomponius says, the new child might break the will regardless of whether it was born before the testators death or afterward. What is the most obvious way to deal with the first scenario, if the child had not been accounted for in the will? Do you see why the posthumous child (postumus) posed special problems?

3.      Draftsmanship. The jurists are deeply concerned with drafting wills to avoid problems that stem from subsequently born sui heredes. One common situa­tion was when a pater had in his power a married son; if that son should die while his father was still alive, any grandchildren (including postumi) would immediately become sui heredes to their grandfather. As to posthumous grandchildren, the late Republican jurist Aquilius Gallus (cited by Scaevola, D. 28.2.29 pr.) suggested the following wording: “If my son dies during my lifetime, then if my grandson or granddaughter through him is born after my death and within ten months of my son's death, let them be heirs.” Is this wording fussy enough? For instance, what if a pater is predeceased by both his son and grandson, but after the testators death his grandsons wife gives birth to his great-grandchild? Unless that child is either instituted or disin­herited, the will is void.