CASE 185: Twins

D. 28.2.13 pr. (lulianus libro vicesimo nono Digestorum)

Si ita scriptum sit: “si filius mihi natus fuerit, ex besse heres esto: ex reliqua parte uxor mea heres esto.

(Julian in the twenty-ninth book of his Digests)

It (a will) was written in this way: “If a son is born to me, let him be my heir to two-thirds; let my wife be heir to the remainder. If a daughter is born to me, let her be my heir to one-third; let my wife be heir to the rest.” Both a son and a daughter were born (after the testator’s death).

The holding should be to divide the whole (estate) into seven parts, in such a way that the son receives four of these, the wife two, and the daughter one part. For thus, in accord with the testator’s wishes, his son will receive twice as much as his wife, and his wife will receive twice as much as his daughter.

For although it was consistent with a strict rule of law that the will was ren­dered invalid, nevertheless, since the testator wanted the wife to have something in the case of either child, for this reason, consonant with considerations of hu­manity, recourse was had to this sort of holding, which also was quite clearly en­dorsed by Juventius Celsus.

1.      Reading the Design of the Testator. Julian claims that his seven-part division is supported by the intentions of the testator.

2.      Strict Law. What is the “strict rule of law” to which Julian refers? Did the tes­tator not adequately take his postumi into account? How could anyone in an­tiquity accurately predict the birth of twins? Does the situation described here seem a likely occurrence? How should the testator have written his will to conform exactly with the strict rule?

3.      Oh, the Humanity! How did “humanity” persuade Julian and Celsus that this solution was the correct one? What would the wife receive if the will were broken (see Cases 159, 167)? Are the jurists perhaps influenced by the fact that provision for a widow in a husbands will was customary? Are they short­changing the interests of the children, especially the daughter?

4.      Other Hypotheses. Would the outcome have been the same if the wife had borne two boys or two girls or triplets?