CASE 187: Adopted Children*
In adoptionem datos filios non summoveri praetor voluit, modo heredes instituti sint, et hoc iustissime eum fecisse Labeo ait: nec enim in totum extranei sunt.
ergo si fuerunt heredes scripti, accipient contra tabulas bonorum possessionem, sed ipsi soli non committent edictum, nisi fuerit alius praeteritus ex liberis qui solent committere edictum. sed si ipse scriptus non sit, sed alius, qui ei adquirere hereditatem potest, non est in ea causa, ut eum ad bonorum possessionem contra tabulas admittamus.(Ulpian in the fortieth book on the Edict)
The praetor did not want the exclusion of children given in adoption, provided that they were instituted heirs. Labeo states that he acted very justly; for they are not entirely outsiders. Therefore, they will receive bonorum possessio against the terms of the will if they were named heirs in the will. But they themselves will not invoke the Edict unless someone else has been passed over from among the category of liberi who are accustomed to invoke the Edict. But if he himself has not been instituted heir, and someone else has been who can obtain the inheritance for him, he is not eligible for our grant of bonorum possessio against the terms of a will.
1. Adoptees in the Will. This Case illustrates how bonorum possessio against the terms of the will differed from bonorum possessio on intestacy Children given in adoption have no intestate claim to the estate of their biological father. The same is not true for bonorum possessio against the terms of the will, provided that the biological fathers will appointed them heirs at least to a small fraction of the estate.
In that case, if the will is challenged because it omits one or more liberi, an adopted child is raised to the position enjoyed by children-in-power and emancipati. Why should adopted children have this privilege? What does Ulpian (perhaps quoting Labeo) mean when he says that they are not entirely outsiders? How is it relevant that they were named heirs?2. Entitlement to a Claim. Besides the requirement that the adoptee be named in the biological fathers will, Ulpian imposes another condition. The adoptee cannot make a claim to bonorum possessio against the terms of a will unless one of the liberi has been passed over, making his position even more derivative. If this happens, can the adoptee take action, or does he or she have to wait until the person passed over applies to the praetor?
3. Strict Requirements. The last sentence of this Case states that the adoptee, to be eligible for bonorum possessio against the terms of a will, must be named as an heir in the will in question, not just as the beneficiary of a trust (fideicommissum). What is the reason for this requirement? Will only biological children benefit from this privilege of being eligible to take possession against the will? See Ulpian, D. 37.4.8.12 (yes).
More on the topic CASE 187: Adopted Children*:
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- CASE 169: Children Inherit from Mothers*
- CASE 168: Mothers Inherit from Children*
- Contents
- CASE 165: Illegitimate Children*
- ODYSSEUS CONTRA ACHILLES
- Diversity within Religious Communities, Caste and Scheduled Tribes
- Large-scale and Global Moral Obligations