CASE 188: Passing over Sui Heredes
D. 37.4.13.2 (Iulianus libro vicesimo tertio Digestorum)
Si pater emancipato filio praeterito heredes duos scripserit, filium quem in potestate habebat et alterum quem in adoptionem dederat, ex quo duos nepotes in familia retinuerat, qui et ipsi testamento praeteriti sint: bonorum possessionem pro parte tertia emancipatus, pro parte tertia is qui in potestate remansit, pro parte tertia qui in adoptionem datus est et filii eius simul habebunt, ita ut sextans patri, sextans nepotibus cedat.
(Julian in the twenty-third book of his Digests)
A father (in his will) passed over his emancipated son and instituted, as his two heirs, his son-in-power along with another son he had given in adoption, from whom he had kept two grandsons in his familia; but they themselves were also passed over.
The emancipated son will receive bonorum possessio (against the terms of the will) of a third share; the son-in-power will receive a third share; and the son given in adoption and his children will receive a third share all together, with a sixth going to the father and a sixth to the grandchildren.
Hypothetical Situation
Titius has three sons, Aulus, Gaius, and Marcus.
He keeps Aulus in power, emancipates Gaius, and gives Marcus away in adoption. In his will, Titius institutes Aulus and Marcus as heirs but passes over Gaius and Marcus's two children, who remained in their grandfathers power. After Titius's death, the praetor throws out the will. Why?1. Grandchildren Cut Out of the Will.
As we saw in the previous two Cases, the praetor granted bonorum possessio against the terms of a will not only if any sui heredes were passed over but also if an emancipated child was ignored. In this Case, even if the emancipated son had been either disinherited or made an heir, the will would have been invalid because the two grandchildren whom the testator passed over were sui heredes. Do you see why?2. A Smaller Slice of the Pie. On the rules for intestate succession, see Part A above. Normally, if a son is no longer in a father's power because of death or adoption, the son's share is split by his children still in their grandfather's power. In this Case, why do the two grandchildren, who had remained in their grandfather's power but became sui iuris upon his death, have to be content with only a sixth of the estate instead of a full third? Or why does the fact that their father is alive not exclude them entirely? See Case 163, along with its Discussion.
3. Matching Wits with the Jurists. This Case and the next three illustrate some of the many complex situations considered by the jurists. Try to isolate the principles that determine their decisions in these (often rather bizarre) cases.