CASE 194: Evil Stepmothers
D. 5.2.3 (Marcellus libro tertio Digestorum)
Inofficiosum testamentum dicere hoc est allegare, quare exheredari vel praeteriri non debuerit: quod plerumque accidit, cum falso parentes instimulati liberos suos vel exheredant vel praetereunt.
D.
5.2.4 (Gaius libro singulari ad legem Glitiam)Non est enim consentiendum parentibus, qui iniuriam adversus liberos suos testamento inducunt: quod plerumque faciunt, maligne circa sanguinem suum inferentes iudicium, novercalibus delenimentis instigationibusve corrupti.
(Marcellus in the third book of his Digests)
To state that a will is undutiful is to make a claim as to why one ought not to have been disinherited or passed over. This generally occurs when parents are spurred by falsehoods to disinherit or pass over their children.
(Gaius in his monograph on the lex Glitia)
For we must not condone parents’ inflicting an injustice on their children in their wills. They (the fathers) generally do this by making a negative judgment on their own flesh and blood after they have been misled by flattery and provocations from stepmothers.
1. Mistake. Marcellus says that a parent who composes an undutiful will is typically induced by a mistake. Is this a simple factual error or an error of judgment, or does Marcellus wish to leave the question open? Is there a hint in his language that someone else is usually responsible for the misinformation? Is his view different from that of Marcian in Case 193?
2. Erroneous Reports.
A mother thinks her son is dead and institutes someone else as her heir. Can the son sue on the ground of an undutiful will? Yes, according to Ulpian (D. 5.2.27.4). Why should this be so? Has the mother acted in a manner that can be characterized as insane or lacking in pietas? Was she unfair? Paul (D. 5.2.28) relates a case in which a mother, acting on a false report that her soldier-son had perished, appointed others as her heirs. The Emperor Hadrian (reign: A.D. 117-138) granted the inheritance to the son but allowed the other arrangements in the will (the legacies and manumissions of slaves) to stand. The jurist reports that this decision was controversial, since the usual practice for undutiful wills was to invalidate all of their provisions. Do you agree with Hadrian? His critics? Should the will have been upheld, at any rate against an attack on this ground?3. The Stepmother. Gaius justifies treating the testators will as “undutiful” when it is inspired by the machinations of a wicked stepmother. What, aside from popular prejudice, makes the stepmother a likely candidate for this role? Must her “undue influence” be actually proven?
C. 3.28.3 (Impp. Severus et Antoninus AA. lanuario)
(pr.) Si mater filiis duobus institutis tertio post testamentum suscepto, cum mutare idem testamentum potuisset, hoc facere neglexisset, merito utpote non iustis rationibus neglectus de inofficioso querellam instituere poterat. (1) Sed cum eam in puerperio vita cessisse proponas, repentini casus iniquitas per coniecturam maternae pietatis emendanda est. quare filio tuo, cui nihil praeter maternum fatum imputari potest, perinde virilem portionem tribuendam esse censemus, ac si omnes filios heredes instituisset. (2) Sin autem heredes scripti extranei erant, tunc de inofficioso testamento actionem instituere non prohibetur.
face="Book Antiqua">(The Emperors Septimius Severus and Caracalla to Januarius; A.D. 197)
(pr.) If a mother instituted her two children as her heirs and (then) gave birth to a third after making her will, and at a time when she was in a position to make changes to this very will, she neglected to do so, the child, insofar as he was omitted for no good reason, can justly bring a complaint of undutifulness.
(1) But when you mention the (additional) fact that (the mother) died in childbirth, the unfairness that this unexpected mischance generated ought to be corrected by inferring the mother’s pietas. For this reason, we ordain that your son, to whom no blame can be imputed beyond his mother’s ill luck, ought to be assigned his full share of the inheritance, just as if his mother had appointed all of her children as heirs. (2) If, on the other hand, non-family members were appointed as heirs, then he is not prevented from bringing suit against an un- dutiful will.
1. Imperial Rescript. Severus and Caracalla (joint reign: A.D. 197-211) respond to an inquiry evidently put by the father of a child omitted from his mothers will; her other two children may be from a prior marriage. What facts are assumed? Has a suit actually been filed yet?
2. The Neglectful Mother. On the first set of facts, what precisely did the mother do wrong? Was this an oversight, or is she actually at fault for not changing her will after giving birth?
3. Death in Childbirth. Why is it that the “unexpected mischance” of death in childbirth ought to be corrected by inferring the mothers pietas? Is it correct to assume that the mother, had she survived giving birth, would have written her son into her will for an equal portion of her inheritance? Does the decision essentially rewrite her will to conform to social expectations?
4. Outside Heirs. If the mother had instituted non-family members, why would that open up a suit against an undutiful will? Who would be entitled to bring the claim?
5. Illegitimate Children. If a mothers will ignores her illegitimate child, can her child bring this action? See Ulpian, D. 5.2.29.1 (yes). Is this consistent with other law on the subject?