CASE 197: Procedural Alternatives

D. 5.2.8.12 (Ulpianus libro quarto decimo ad edictum)

Si quis et irritum dicat testamentum vel ruptum et inofficiosum, condicio ei deferri debet, utrum prius movere volet.

D.

Non putavit praetor exheredatione notatos et remotos ad contra tabulas bonorum possessionem admittendos, sicuti nec iure civili testamenta parentium turbant: sane si velint inofficiosi querellam institutere, est in ipsorum arbitrio.

(Ulpian in the fourteenth book on the Edict)

If someone should claim that a will is not only ineffective or broken but unduti- ful as well, he or she should be permitted to choose which action to bring first.

(Ulpian in the fortieth book on the Edict)

The praetor did not think that persons who were singled out and disinherited should be allowed to claim bonorum possessio against the terms of a will, just as they also do not overturn their parents’ wills under the ius civile. To be sure, if they should wish to bring a complaint about undutifulness, this is up to them.

1.      Choice of Remedies. Under what circumstances can a prospective litigant choose whether to claim bonorum possessio against the terms of a will or in­stead sue on an undutiful will? Paul (D. 5.2.23 pr.) discusses a case in which a fathers will passes over his emancipated son and institutes as heir a grand­son by him; the grandfather had retained the boy in his power. As Paul de­cides, the son can seek bonorum possessio but cannot sue on undutifulness; however, if the son had been disinherited, then he could raise the issue of un­dutifulness.

2.New Roman">      The Better Remedy. Do the two suits, if successful, have the same result? Which might a litigant prefer? If one case is lost, can the other remedy still be sought?

3.      Not My Son. In another text (D. 5.2.27.1) Ulpian says that if, in his will, a tes­tator denies that someone is his son but nonetheless disinherits him, the pu­tative son can still attack the will as undutiful. Why is this true? Why can he not bring a claim for bonorum possessio against the terms of a will?

4.      Why Permit the Querella? “There were perfectly good reasons for disinherit­ing relatives, but it is rather interesting that the jurists do not appear to dis­cuss them. It may be that they took the high-minded view that this was a mat­ter for the rhetoricians” (David Johnston). Would Roman law have been bet­ter off to approach the problem more directly? What reasons might the Ro­mans have had for such caution?