CASE 183: Postumi and the (Un)married Man*
D. 28.2.4 (Ulpianus libro tertio ad Sabinum)
Placet omnem masculum posse postumum heredem scribere, sive iam maritus sit sive nondum uxorem duxerit: nam et maritus repudiare uxorem potest et qui non duxit uxorem, postea maritus effici.
nam et cum maritus postumum heredem scribit, non utique is solus postumus scriptus videtur, qui ex ea quam habet uxorem ei natus est, vel is qui tunc in utero est, verum is quoque, qui ex quacumque uxore nascatur,D. 28.2.5 (lavolenus libro primo ex Cassio)
ideoque qui postumum heredem instituit si post testamentum factum mutavit matrimonium, is institutus videtur, qui ex posteriore matrimonio natus est.
(Ulpian in the third book on Sabinus)
It is generally accepted that any male, whether he is already married or has not yet married, can institute a postumus as heir. This is because a married man can divorce his wife, while an unmarried man can later become a married one. For even when a husband institutes a postumus as heir, the postumus who is instituted is not necessarily held to be one born from the woman to whom he is then married, or a postumus who is then still in the womb, but also one who is born from any wife whatsoever,
(Javolenus in the first book from Cassius)
and therefore, if someone who institutes a postumus as heir should later remarry, the person born from the later marriage is held to be instituted.
Hypothetical Situation
Titius's girlfriend has just informed him that she is pregnant with his child. Titius does not intend to marry her but is writing his will.
What should he do?1. Adversity to Risk. Ulpian is quite clear: an unmarried male writing a will should be concerned about a prospective postumus. What if, as in the hypothetical situation, he has no plans to marry his pregnant girlfriend? Should the testator wait until he learns his partner is pregnant before instituting a postumus? Suppose he is not currently in a relationship: what result then? What if he is at present married to someone else?
2. Obscurity Helps. Do Ulpian and Javolenus recommend that the institution of the postumus be made without any indication of who the mother is or, for that matter, the identity of the child? The jurists usually demand precision in the writing of wills. Why not here?
3. An Impermissible Postumus? Can you institute as your heir your posthumous child from a woman, such as your sister, to whom legal marriage is impossible? See Paul, D. 28.2.9.3, citing Pomponius: yes, you can. Why? The text suggests that the point was disputed.
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