CASE 210: Bad Blood
D. 31.88.16 (Scaevola libro tertio Responsorum)
Matre et uxore heredibus institutis ita cavit: “a te, uxor carissima, peto, ne quid post mortem tuam fratribus tuis relinquas: habes filios sororum tuarum, quibus relinquas.
scis unum fratrem tuum filium nostrum occidisse, dum ei rapinam facit: sed et alius mihi deteriora fecit.” quaero, cum uxor intestata decessit et legitima eius hereditas ad fratrem pertineat, an sororis filii fideicommissum ab eo petere possunt. respondi posse defendi fideicommissum deberi.(Scaevola in the third book of his Responses')
After instituting his mother and his wife as his heirs, a testator provided the following: “I ask, dearest wife, that after your death you leave nothing to your brothers. You have the children of your sisters to whom you may leave (it). You know that one of your brothers killed our son during a robbery, while the other has done even worse things to me.” The wife died intestate and her estate goes to her brother as intestate heir. I ask whether her sister’s children can claim a fideicommissum from him.
size=1 color=black face="Book Antiqua">I responded that it can be maintained that the fideicommissum is owed.
1. In-Laws as Outlaws. A truly dysfunctional family! In his will, the husband made serious accusations against his brothers-in-law but apparently provided no evidence; nor does it appear that the two brothers had been convicted for their crimes. Would it matter if the husbands charges could be proven false? Does Scaevola simply assume that they are true? Or does he rather think that the wife believed them to be true when she accepted a share of her husbands estate, or at least that such a belief can be imputed to her on the basis of her acceptance? Is it likely that the charges influenced the jurist in his decision? In any case, should they have?
2. Content of the Fideicommissum.
What was the precise content of the testator's request to his wife? That she leave nothing to her brothers, or as well that she leave her estate, or some portion of it, to her nephews and nieces? How is his request different from giving advice (“Live a rich and happy life!” or “Don't do drugs!”)? If the fideicommissum is owed, the sisters children will be able to claim it. Would you judge that they have a sufficient basis for a claim?3. Trust and Intestacy. Why should a fideicommissum be allowed to override the rules on intestacy? In a strict sense, didn't his widow comply with her deceased husband's request by dying intestate and so leaving nothing to her brothers? How far should the fideicommissum run: just to what she inherited from her husband or to her entire estate?