CASE 191: Adopting a Grandson as a Son
D. 37.4.3.1-2 (Ulpianus libro trigesimo nono ad edictum)
(1) Si duos habens nepotes alterum emancipatum loco filii adoptaverit, videndum, an solus ille quasi filius admittatur: quod ita scilicet procedit, si quasi patrem eius nepotis, quem retinuerat, sic adoptaverit: melius est autem dicere posse eum solum ad bonorum possessionem pervenire.
(2) Sed si sit hic nepos emancipatus, verum est dicere non admitti eum quasi filium: hic enim quasi filius non est ex liberis, cum iura adoptionis emancipatione finita sint.(Ulpian in the thirty-ninth book on the Edict)
(1) If someone with two grandsons emancipates one and (then) adopts him as a son, it must be determined whether only that quasi son is admitted (to bonorum possessio). This is the result, to be sure, if the grandfather had adopted him as the father of the grandson whom he had retained (as a grandson). But the better result (also in the earlier case) is that he alone can receive bonorum possessio.
(2) But if the grandson in question has been emancipated (a second time), the correct holding is that he is not admitted as a son. For this quasi son does not rank as one of the praetorian liberi, since the rights created by adoption were extinguished by emancipation.
Hypothetical Situation
Titius emancipates one of his two grandsons and then adopts him as a son. Titius dies and his will is successfully challenged. Can the grandson who was adopted as a son claim bonorum possessio against the terms of the will? Does the other grandson also have a claim?
1. The Grandson as Son. Is it clear why the grandson adopted as a son would unambiguously exclude the other one if he were adopted as his father? Is it equally clear why the same result should obtain when the emancipated grandson was not adopted as the father of the grandson still in his fathers power? Ulpian's language is a bit odd, and one phrase (melius est) suggests not all jurists would agree with him. What are the arguments on either side?
2. Emancipation Cancels Adoption. Why should the grandson who was emancipated, adopted as a son, and then reemancipated not enjoy the same rights as a son who has been emancipated? What does Ulpian mean when he says that such a grandson does not rank as one of the praetorian liberi? Why wouldn't he revert to being a grandson?