CASE 186: The Challenge of the Emancipatus*

D. 37.4.8.14 (Ulpianus libro quadragesimo ad edictum)

Non est novum, ut emancipatus praeteritus plus iuris scriptis heredibus fratribus suis tribuat, quam habituri essent, si soli fuissent: quippe si filius qui in potestate patris est ex duodecima parte heres scribatur emancipato praeterito, dimidiam partem beneficio emancipati occupat, qui, si emancipatum fratrem non haberet, duodecimam partem habiturus esset.

(Ulpian in the fortieth book on the Edict)

It comes as no surprise that an emancipated child, if he is passed over (in his fa­ther’s will) when his siblings were named heirs, may confer more rights on them than they would have had on their own (with no emancipated brother or sister). For if a son-in-power is instituted heir with respect to a twelfth (of the estate) and his emancipated brother is passed over, he takes a half share because of the emancipatus; but if he did not have an emancipated brother, he would receive (only) a twelfth share.

And if he were instituted heir with respect to a very small portion of the es­tate, once the Edict has been invoked, he should be protected not (only) with re­spect to the share to which he was appointed heir; he can receive more through bonorum possessio.

The praetor’s policy, when he grants bonorum possessio against the terms of a will, is to distribute to each of the children (liberi) those portions they would re­ceive if their father had died without a will and they had remained in his power.

1. The Praetor Upsets the Will. By creating a preferred class called liberi, the praetor permitted children emancipated from their fathers power to enjoy rights similar to those of sui heredes (see Cases 162-163). That is, he required that an emancipated child either be instituted heir or disinherited, in the same manner as the sui; thus, a male descendant had to be disinherited by name, and a female at least through a general clause (Gaius, Inst. 2.135). If a testator passed over a son-in-power, the praetor invalidated the will and gave possession to the heirs upon intestacy (Ulpian, D. 38.6.1.9). In the case of all others (whether sui heredes or not), the praetor upheld the will in part: he en­forced disinheritances, pupillary substitutions, and some legacies. But apart from these exceptions, he ignored the heirs who were instituted in the will; instead, to those intestate heirs who had not been disinherited he granted possession of their intestate shares. See Gaius, Inst. 2.125-126 (also noting an exception to this distribution).

2.      Applying the Rules. In Ulpian's hypothetical situation, the testator had two heirs upon intestacy: his son-in-power and an emancipated son. In his will, the testator passed over the emancipated son, left only a twelfth to his son-in- power, and directed the rest of his estate elsewhere (e.g., to his widow). What happened next? Who won and who lost from the praetors intervention? As Ulpian remarks, in this situation the son-in-powers share would increase from a twelfth to a half as a result of the emancipated son's claiming his share.

3.      Collation. Though Ulpian does not mention this, his hypothetical situation raises another problem. Suppose that the son had been emancipated ten years before the testators death; during that time, unlike his brother who was still in power, he would have been able to amass property of his own. Should he profit from his early independence? In order to prevent this possible unfair­ness, the praetor required him to combine his own property (or its value) with his fathers estate, through a process called collation (collatio). The two sons would then divide the total. The resulting legal problems are discussed at length in D. 37.6. See also Case 163.

4.      Collation of Dowry. Suppose that the father in Ulpian's hypothetical situa­tion had also left a married daughter-in-power to whom he had given a dowry; if she wishes to claim her intestate share in the estate, should she be first required to contribute the value of her dowry? See D. 37.7 (yes). Is this situation entirely equivalent to the one discussed in the previous paragraph? Remember that the daughter does not have control of her dowry during the marriage.

5.      Adoptees. The rights created for adopted children who are instituted heirs under the will of their biological father are discussed in the next case.