CASE 196: Multiple Claims

D. 5.2.14 (Papinianus libro quinto Quaestionum)

Pater filium emancipavit et nepotem ex eo retinuit: emancipatus suscepto postea filio, duobus exheredatis patre praeterito vita decessit.

D. 5.2.15 pr. (Papinianus libro quarto decimo Quaestionum)

Nam etsi parentibus non debetur filiorum hereditas propter votum parentium et naturalem erga filios caritatem: turbato tamen ordine mortalitatis non minus paren­tibus quam liberis pie relinqui debet.

(Papinian in the fifth book of his Questions of Law)

A father emancipated his son while keeping in his power a grandson by that son. The emancipated son, after having another son, died (with a will) disinheriting both sons and passing over his father. In a hearing over an undutiful will, be­cause the sons’ cause takes precedence, the father’s claim remains in suspense. But if judgment is against the sons, the father is summoned to bring a complaint (against an undutiful will) and can pursue his case.

(Papinian in the fourteenth book of his Questions of Law)

For although the parents’ claim to inheritance from their children is not based upon the parents’ desires and their natural affection for their children, still, when the usual pattern of mortality is upset, pietas should characterize no less be­quests made to parents than those to children.

1.      Three Claimants. All three parties had a claim to the intestate succession of this emancipatus, which in turn justifies their suit against an undutiful will.

2.      Multiple Remedies. Can the father also claim bonorum possessio against the terms of a will? Would the result be any different?

3.      A Fine Distinction. What Papinian says in the second text is not altogether clear, but he seems to make the following distinction: when a child claims in­heritance from a parent, this claim is founded on what parents are likely to have wanted and on their emotional attachment to their child; but when a parent claims inheritance from a child, the claim is founded only on a more general and hence vaguer consideration of familial affection (pietas). Does this explain why the sons in this Case take precedence over their father? Compare Cases 193-194.