CASE 189: The Son of an Adopted Child
D. 37.4.21 pr. (Modestinus libro sexto Pandectarum)
Si is, qui filium et ex eo nepotem in potestatem habebat, filium in adoptionem dedit nepote retento in potestate, postea filius emancipatus a patre adoptivo decessit extraneis heredibus institutis: filius huius, qui in potestate avi remansit, contra tabulas patris sui bonorum possessionem petere poterit, quamvis numquam in potestate huius fuerit.
ideo nec debuisse in potestate esse videtur. nam, si aliter observatur, nec si emancipatus filius fuerit, nepos ex eo, qui in potestate avi remansit, bonorum possessionem contra tabulas petere poterit.(Modestinus in the sixth book of his Pandects)
A man had in his power a son and through him a grandson. He gave the son in adoption, while keeping the grandson in his power. Later this son, after having been emancipated by his adoptive father, died, with non-family members named as his heirs.
His son, who remained in his grandfather’s power, can apply for bonorum possessio against the terms of his father’s will, even though he was never in his father’s power. And so it does not seem necessary to have been in power. For, if any other rule is observed, and if the son had been emancipated, the grandson through him, who remained in the power of his grandfather, will not be able to request bonorum possessio against the terms of a will.
Hypothetical Situation
Titius gives his son in adoption to Maevius, while keeping in his power his grandson through this son. Maevius later emancipates the son, who dies leaving a will that institutes heirs only from outside his family of birth. Is this will invalid, and if so, why? What can the grandson claim from his fathers estate?
1. A Disputed Will.
All we are told about the will is that the son instituted non-family members (extranei) as heirs. Is it likelier that he passed over his biological son or that he explicitly disinherited him? Would the testator have assumed it was necessary to disinherit his son expressly? Is it fair to hold him to a requirement not found in the law?2. Never in Power. The grandson was never in his biological fathers power, so that he was in no position to be either emancipated or given away by him in adoption. What basis is there for recognizing the grandsons claim to bonorum possessio? Is he being analogized to an emancipatus or in some way considered an emancipatus in reverse?
3. A Problem. Suppose that a pater familias emancipated a son but kept in power a grandson by him; later he gave the grandson in adoption to the emancipated son. The pater dies and his will passes over his grandson; can the grandson claim bonorum possessio against the will? Modestinus (D. 37.4.21.1-2) says that he can since he was not “in another's familia” (meaning what?). The outcome, says Modestinus, would be different if the emancipated son had adopted a child from an outsider, since that child would have no relationship to the grandfather.