CASE 190: Adopting a Son as a Grandson

D. 37.4.1.7 (Ulpianus libro trigesimo nono ad edictum)

Qui habebat filium, habebat et nepotem ex eo, filium emancipavit et adoptavit in locum nepotis, deinde emancipavit: quaeritur an nepoti obstet.

(Ulpian in the thirty-ninth book on the Edict)

A man had a son and through him a grandson. He emancipated the son and adopted him as a grandson; then he emancipated him (again). The question arises as to whether he (the biological son) prejudices (the claim of) the grand­son (to bonorumpossessio against the will).

What seems preferable to me is that the grandson in question is not ex­cluded, no matter whether his father had remained as an adopted grandson or was emancipated (for the second time). For I believe that even if the father were emancipated (again), the grandson is admitted together with his father, in accord with the Edict.

1.      Context. What does Ulpian presume has already happened in order for these questions to be raised? Has the grandfathers will already been successfully contested?

2.      Rationale for Adoption. Why would a man adopt his son as his grandson, and why would he subsequently reemancipate him? Cases such as this one may suggest to you that some Roman householders pursued a restless strat­egy of shaping and reshaping the structure of their families, with repeated adoptions and emancipations of the persons subject to their power.

3.      Holding. Ulpian appears to hold that the son and grandson are entitled to equal shares of the inheritance under the rules for bonorum possessio against the terms of a will. How do you explain this?

4.      Capital Exile. In the following text (D. 37.4.1.8), Ulpian considers a situation in which a paterfamilias has a son and through him a grandson; the son was convicted of a crime and deported, with loss of civil rights. Ulpian holds that whether this son was exiled after being emancipated or while still in his fa­ther's power, he does not prejudice the claim of the grandson to the grandfa­ther's estate. Ulpian's rationale is that someone deported is treated like a dead person. Why is the rule the same both when the father is emancipated and when he is still in power?