- 1. Introduction.
- 2. The problem of the ius adcrescendi (“inheritance increase”): ancient texts and modern theories.
- 3. A different solution to the problem of inheritance increase and a new interpretation of the classical texts.
- 4. Paul. l.s. de inoff. testam. D. 22.214.171.124 and a relevant Byzantine text.
- 5. Ulp. 14 ad ed. D. 126.96.36.199 and a relevant Byzantine text.
- 6. Conclusions.
1. Introduction 1 .
1. This is the text of the conference presented at the Centre for Legal History of the University of Edinburgh on May 8th 2015. The fundamental (...)
1 In classical Roman law, the testator’s children, parents, brothers and sisters that did not receive from him in his Last Will and Testament (herein “will”) at least one fourth of the share of inheritance due to them based on intestate succession ( quarta debitae portionis 2 ) would have been able to file the action for undutiful will ( querela inofficiosi testamenti ) against the testamentary heirs. With this action they would have been able to obtain the entire share of inheritance due to them ab intestato . We must clarify that these heirs, which we can call “forced heirs”, or “compulsory heirs”, or “heirs with legal rights” 3 , would have been able to file querela to obtain the entire share of inheritance due to them ab intestato whether they were completely disinherited or alloted a part of the estate inferior to the quarta debitae portionis by the decedent’s will.
2. Hereafter we will always call the “fourth of the share of inheritance due to a person based on intestate succession” quarta debitae portionis (using a (...) 3. These English expressions cannot be found in rules of law of common law systems, where “legal rights” out of a deceased person’s estate do not (...)
2 Justinian intervened in this complex of rules in 528 (C. 3.28.30), introducing the so-called actio ad implendam legitimam . He decided that the forced heir that was not completely disinherited, but that had received less than the quarta debitae portionis , could have contested the will not to obtain the intestate share due to him ab intestato , but only to obtain that which was missing from the portio legitima ; only the heir that did not receive anything could have acted, as in the past, by means of querela inofficiosi testamenti to obtain the entire share due ab intestato 4 .
4. Iust. C. 3.28.30 pr. a. 528 (and 31, for oral testament) and Inst. 2.18.3. In Justinianic law and language the quarta debitae portionis has become (...)
3 The classical querela could be conducted either according to the procedure of legis actiones (and thus before a praetor during the in iure phase and before the centumviri in the apud iudicem phase), or according to cognitio extra ordinem .
4 Having received less than the quarta debitae portionis did not bring automatic victory to the forced heirs in the lawsuits. On the contrary, each forced heir had to demonstrate in contrast to the testamentary heir that there were no subsistent valid reasons for his disinheritance 5 . If he was not able to demonstrate such, he lost.
5. In Nov. 18, Justinian would have given a complete list of cases in which the disinheritance of forefathers and descendants would have been valid. (...)
5 When there was only one forced heir that had successfully brought querela against the sole extraneous testamentary heir, the will was completely rescinded and the entire intestate succession was opened 6 .
6. It goes without saying that because the outcome was that described, the testamentary heir had to be extraneous. If it had been the other way (...)
6 There were different consequences when there were numerous testamentary heirs and/or numerous heirs with legal rights as the joinder of parties did not exist in these proceedings 7 .
7. As we have maintained in L. Gagliardi, La divisione in consilia del collegio centumvirale e la basilica Iulia, in BIDR 101-102 (1998-1999, publ. 2005), 385 (...)
7 For that reason, when there was hypothetically one forced heir against various extraneous testamentary heirs (A versus B n ), the petitioner could have achieved rescission of the entire will (and the opening of the intestate succession to his advantage) only if he had sued and defeated in court each of the various testamentary heirs. Otherwise (if, for example, he had sued and defeated one or two of various testamentary heirs), there would have been competition between intestate and testamentary succession (partial rescission of will).
8 Greater problems were created if there were various heirs with legal rights and only one extraneous testamentary heir (A n versus B) and the problems multiplied even more so if there were also numerous extraneous testamentary heirs (A n versus B n ).
9 We will consider here the case A n versus B. In this circumstance each disinherited co-heir with legal rights would have had to act in court for the share due to him. If he asked for more ( pluris petitio ), he would be met with disadvantageous consequences, which meant losing the case in the regime of legis actiones 8 and in the cognitio until Justinian, and gave rise to compensatory obligations in the cognitio in Justinianic time 9 .
8. The rule is documented in Gai 4.53-60 for the formulary procedure and it seems convincing that it could be valid also for the legis actiones. (...) 9. Consult. 5.7; Zeno C. 3.10.1 (with Bas. 7.6.21); Inst. 4.6.24, 4.13.10; Iust. C. 3.10.2. Analytic treatise of this topic in G. Provera, La pluris petitio (...)
10 We can imagine, for example, that two sui sons, A 1 and A 2 , had been disinherited and that the extraneous B was constituted testamentary heir.
11 Since A 1 and A 2 had to act separately against B, it was possible that A 1 could win and A 2 could lose. In that case the will would have been rescinded only pro parte and there would have been competition of intestate and testamentary succession.
12 Each forced heir had five years from the time of acceptance of inheritance by the testamentary heir 10 to file querela .
10. This was the opinion of Ulp. 14 ad ed. D. 188.8.131.52. For Mod. l.s. de inoff. testam. D. 5.2.9 the term began from the time (...)
13 Given that each forced heir could act autonomously, if the two hypothetical forced heirs did not agree to act in court simultaneously, it was possible that one co-heir could file querela while the other waited to file it at a later time.
14 It is to be believed that in this case the first brother that acted, had to limit himself to act for his own share of intestate inheritance ( querela pro parte ), bearing in mind the existence of the co-heir that could have acted in turn at a later time within the prescription period.
2. The problem of the ius adcrescendi (“inheritance increase”): ancient texts and modern theories.
15 It could also happen that a co-heir with legal rights (in our example, one of two brothers) vouched not to intend to ever file querela .
16 We ask ourselves if, in that case, the brother that acted could benefit from the ius adcrescendi (inheritance increase), claiming the share of his brother that had repudiated the querela . The intention to repudiate the querela is called animus repudiantis in the sources 11 . (Conclusive evidence was equivalent to an expressed testament, like, for example, to accept a bequest inferior to the quarta debitae portionis . 12 )
11. See Paul. 2 quaest. D. 5.2.17 pr. In Byzantine Greek, the expression used is ῥεπουδιατεύοντος ψυχή: see the Schol. 1 ad Bas. 39.1.14. (...) 12. See Marcell. 3 dig. D. 184.108.40.206, Mod. l.s. de praescr. D. 5.2.12 pr., Tryph. 17 disp. D. 5.2.22 pr., Paul. 1 d. i. fisci D. (...)
17 The disinherited co-heir petitioner had to know if he benefited from the inheritance increase, because he would be met with the disadvantageous consequences of the pluris petitio in the event he erroneously believed he benefited from it and acted in court with such a pretense.
18 The classical sources seem to give contradictory answers to the query posed.
19 According to Pasquale Voci 13 , and adhered to by various scholars 14 , there would have been a controversia on the subject between Paul on one side and Papinian (whose opinion is adhered to by Ulpian) on the other. Paul’s opinion would be attested by Paul. l.s . de inoff . testam . D. 220.127.116.11 (and would be confirmed by Paul. 2 quaest . D. 5.2.17 pr.); Papinian and Ulpian’s opinion would instead be attested by Ulp. 14 ad ed . D. 18.104.22.168.
13. P. Voci, Diritto ereditario romano, II2, Parte speciale. Successione ab intestato. Successione testamentaria, Milano 1963, 693 ff. Before him already E. Renier, Étude sur l’histoire (...) 14. M. Marrone, Querela inofficiosi testamenti, Palermo 1962, 91, 106 ff.; L. Di Lella, Querela inofficiosi testamenti. Contributo allo studio della successione necessaria, Napoli 1972, 197 (...)
20 According to Voci, the animus repudiantis would have been relevant for Paul, but not for Papinian (and for Ulpian). In his opinion, Papinian (and Ulpian) thought that if only one of the two disinherited sons had legally brought on querela , in any case he would only have been able to obtain the share of inheritance due to him ab intestato , even if the other disinherited son had repudiated the actio . In other words, the querela could not have been anything other than pro parte. It seems Paul, instead, would have acknowledged the right to inheritance increase.
21 Other authors have held that all the classical jurists did admit the inheritance increase if a co-heir had repudiated the querela and that contrasts, that appear among the jurists, depend on Justinianic interpolations 15 .
15. G. La Pira, La successione ereditaria intestata e contro il testamento in diritto romano, Firenze 1930, 453-458; J. Ribas-Alba, Una pretendida controversia entre Papiniano-Ulpiano y (...)
3. A different solution to the problem of inheritance increase and a new interpretation of the classical texts.
22 We intend here to offer a different interpretation. We too believe that Paul acknowledged the inheritance increase in the event a co-heir with legal rights repudiated the querela , but we do not share the notion that the other two jurists denied it.
23 If one reads Ulpian’s passage in which the right to inheritance increase is denied, one can note that it is not said that the brother that did not file querela had repudiated it 16 . We must interpret the passage in the sense that he did not file the lawsuit without repudiating it, and that he might have been waiting to possibly sue in the future.
16. This had in fact been observed in 1873 by Charles Parmentier, Droit romain. De la querela inofficiosi testamenti. Droit français. De la réserve des ascendants, (...)
24 But there is more. This interpretation, which could only be speculative, indeed seems to find confirmation in two Byzantine scholia relative to the two Basilica passages corresponding to the cited Digest fragments.
25 In the cases that we will consider, we are dealing with scholia antiqua , or scholia extrapolated from works of sixth-century Byzantine jurists, making it possible they might have commented on original works of the ancient prudentes from which the Digest fragments were taken. In our cases, we are dealing with reliable scholia that, following Heimbach 17 , we can presume come from the Ἴνδιξ of Stephanos.
17. C.G.E. Heimbach, Manuale Basilicorum, in Id., Basilicorum Libri LX, VI, Prolegomena et Manuale Basilicorum continens, Lipsiae 1870, 217 ff., part. 233. (...)
4. Paul. l.s . de inoff . testam . D. 22.214.171.124 and a relevant Byzantine text.
26 First, let us read Paul. l.s . de inoff . testam . D. 126.96.36.199:
|Si duo sint filii exheredati et ambo de inofficioso testamento egerunt et unus postea constituit non agere , pars eius alteri adcrescit . idemque erit , et si tempore exclusus sit.||If two sons have been disinherited and both have brought an action for undutiful will and one later has decided not to proceed, his share is added to that of the other. It will be the same even if he has been barred because of a time limit.|
27 This fragment considered two cases.
28 The first was that of two brothers disinherited by their father. Both had begun querela , but one of the two had abandoned it (he had therefore repudiated it). The brother that continued the action could enforce the right to inheritance increase during the trial 18 .
18. Cf. also U. Zilletti, Studi, cit., 157. (...)
29 In the second case, one co-heir acted while the prescription period had already expired for the other. Even in this case there was inheritance increase 19 . It is interesting to consider how it is possible that the prescription period had expired only for one of the co-heirs and not for both.
19. The same solution, about inheritance increase, can be found in the other quoted passage by Paul, 2 quaest. D. 5.2.17 pr., which here it is (...)
30 One scholion to Bas. 39.1.19, the Schol. 5 Scheltema 20 (= 2 Hb.) furnishes interesting information. I report the text, dividing it in two segments:
20. BS 2325-20. (...)
|A - Προβαίνει καὶ τοῦτον εἰπεῖν τὸν θεματισμόν, ὅτι δύο παίδων ὄντων ἐξνερεδάτων οὐδέτερος αὐτῶν ἐκίνησε πενταετίας ἐντός·ἀλλ’ ὁ μὲν ῥᾳθυμήσας, ὁ δὲ ῥeïpublícae cau͂sa ἢ καθ’ ἑτέραν περίστασιν ἀπολιμπανόμενος, εἰ καὶ παρῆλθεν ἡ πενταετία κινεῖ· e̓x magna γὰρ et iusta cau͂sa καὶ μετὰ πενταετίαν ἡ δεϊνοφικίοσο κινεῖται.||A - He proceeds to describe also this case in which neither of the two disinherited brothers had brought the action in five years; but one because he did not want to do it, and the other because he was absent reipublicae causa or for some other reason. And even though the five years had passed, he sues in court; ex magna et iusta causa , indeed, the actio de inofficioso is exercised even after the fifth year.|
|B - Τοῦτο δὲ σημείωσαι, ὅτι μόνον τότε ὁ ἐξνερεδάτος παῖς πάρτεμ ποιεῖ, ὅτε ἐφησυχάζει μέν, δύναται δέ, εἰ θελήσει, κινεῖν, οὐ μὴν ἔνθα ἰδικῶς ἀπετάξατο τῇ μέμψει ἢ ἐτελεύτησεν ἢ ἀπεκλείσθη τῷ χρόνῳ.||B - Observe that the disinherited son really only has to be considered when and namely he omits to bring about legal action – even if he can, if he wants – and certainly not when he has expressly renounced the action, or died, or was barred by the prescription.|
31 This scholion relates to the second of the two cases in the passage by Paul D. 188.8.131.52 and explains how it is possible that the right to action might be barred for one of the two co-heirs with legal rights and not for the other whilst the prescription period was the same for both.
32 It seems to belong to the scholia antiqua group, as can be gathered from the fact that it adds supplemental information to that inferable from the passage from the Digest , and precisely credits Paul ("He – i.e.: Paul – proceeds to describe also this case"), at least in segment A.
33 The case was reconstructed like this: neither of the two disinherited sons had acted within the five years. However one of the two did not act by choice, and the other because he had been absent reipublicae causa . In this case, the second forced heir had the right to be reinstated in terms of action, even though the five-year prescription period had already passed, and he benefited from the inheritance increase.
34 The scholion then closes with segment B, which contains a very significant normative recap.
35 The author of the scholion wrote that, ultimately, in any case in which there were two disinherited children, one “counted” (πάρτεμ ποιεῖν is the expression used in Greek) with regard to the other that filed querela , if the first still had the possibility to file a lawsuit on his own in the future. “To count” means that he must be “considered,” and thus there could not be an inheritance increase. Instead, this would not have happened if the first brother were no longer able to act, either because he had expressly renounced the action, or perhaps he had died, or maybe because the prescription period had expired. In that case he did not “count,” and could therefore be excluded, meaning the inheritance increase could take place.
36 We do not know if the content of segment B was also, like the content of segment A, in the original jurist’s text, or if it was added by the author of the scholion .
37 If the first hypothesis is true, it may be deduced that Paul’s text said the inheritance increase had a place only if the querela had been renounced and not the other way around.
5. Ulp. 14 ad ed . D. 184.108.40.206 and a relevant Byzantine text.
38 Now we will introduce the reading of Ulp. 14 ad ed . D. 220.127.116.11, dividing it into three segments:
|I - Quoniam autem quarta debitae portionis sufficit ad excludendam querellam ,||I – Since a quarter of the share due is enough to prevent a complaint,|
|II - videndum erit an exheredatus partem faciat qui non queritur : ut puta sumus duo filii exheredati . et utique faciet , ut Papinianus respondit , et si dicam inofficiosum , non totam hereditatem debeo , sed dimidiam petere .||II - we shall have to consider whether a disinherited person who does not complain counts, for example, if two sons have been disinherited. In fact, he certainly will count, as Papinian said in a reply; and if I bring an allegation of undutifulness, I should claim not the whole inheritance, but only half of it.|
|III - proinde si sint ex duobus filiis nepotes , ex uno plures , tres puta, ex uno unus : unicum sescuncia , unum ex illis semuncia querella excludit .||III – Accordingly, if there are grandchildren by two sons, several by one, let us say three, but only one from the other, a gift of an eighth prevents the only child from bringing a complaint and a gift of one twenty-fourth any one of the others.|
39 The first segment comes from a principle: the forced heir that had received the quarta debitae portionis could not file querela inofficiosi testamenti . This is clear, we have no doubt about this.
40 After the expression of this general rule, we would expect that the fragment would focus on a case surrounding the question of whether or not a certain subject had received the quarta debitae portionis and whether or not he could file querela .
41 Surprisingly, however, the second segment considered a hypothesis that was totally independent from the principle: that is, that there were two sons, that we will call “Primo” and “Secondo”, totally disinherited by their pater , and one testamentary heir 21 . Since the brother Secondo did not proceed with the querela , it was questioned whether or not Primo benefited from the inheritance increase. Papinian answered that Primo had to consider his brother, Secondo, who partem facebat , and did not benefit from the inheritance increase.
21. One might recognize a relationship between the first two segments if one believes that Secondo received the quarta debitae portionis (one eighth) and Primo asked (...)
42 In the end, the third and last segment considered that the testator’s two sons had predeceased him and one son left one child and the other had left three children. It was asked what might be the minimum share of the inheritable estate (or quarta debitae portionis ) that each of the four grandchildren would have had to receive per testament from the forebearer in order to exclude the action for undutiful will. The third segment connects well with the first. But the second does not.
43 So, this passage poses two problems for us.
44 The first problem is that it appears to give a solution in opposition to that of Paul on the subject of inheritance increase. In other words, it seems to validate Voci’s theory on the jurisprudential controversia .
45 Nevertheless we must note that it is never mentioned in this passage that the brother Secondo had repudiated the querela . One can therefore believe that this is the reason for which Primo had limited himself in court to claiming only his share of the inheritance.
46 The second problem is that the second segment of the passage does not appear to be even minimally related to the first, while the third is. It also has some problems in grammar; the subjects change. So, it is clear that the hand of the Compilers has brought at least some changes. But which ones?
47 We hold it to be true that the scholion 18 Scheltema 22 (= 16 Hb.) to Bas. 39.1.8 23 evidently preserves the segment of what ought to be the richest original Ulpianic passage while, on the one hand, allowing us to confirm the solution to the first problem posed from the latin passage that we have just now touched on, while, on the other hand, offering the solution to the second problem on a silver platter.
48 Let us report the text of the scholion , dividing it in six segments:
|A - Ἐπειδὴ φθάσαντες εἴπομεν τὸ νόμιμον τῷ παιδὶ καταλιμπανόμενον ἀποκλείειν τοῦτον τῆς μέμψεως, ἄξιον ἐντεῦθεν ζητῆσαί τε καὶ μαθεῖν, εἰ ἄρα ὁ ἐξνερεδάτος παῖς ἐφησυχάζων párτεμ ποιεῖ τῷ ἀδελφῷ.||A - After it is said above that the reserved share of the estate [...] (τὸ νόμιμον) left to a son excludes him from the querela , it is consequently opportune to examine and understand if the disinherited son, that cannot file querela , must be considered by his brother.|
|B - Τί δὲ τοῦτο ἔστι, μάθε σαφέστερον. Δύο τις ἔχων παῖδας ἐξωτικὸν μὲν ἐνεστήσατο κληρονόμον, ἐξνερεδάτους δὲ τοὺς παῖδας πεποίηκε, καὶ θατέρῳ μὲν τῶν παίδων τὸ η´. τῆς οἰκείας περιουσίας καταλέλοιπε μέρος, τῷ δὲ ἑτέρῳ τῶν παίδων οὐδέν . Ἀλλ’ ὁ μὲν παῖς, ᾧ μηδὲν καταλέλοιπεν ὁ πατήρ, ἐφησύχασεν, οὐ ῥεπουδιατεύων μέντοι τὴν μέμψιν · βούλεται δὲ ὁ ἕτερος τῶν παίδων ὁ τὸ η´. μέρος ἔχων παρὰ γνώμην τοῦ τεστάτορος ἕτερον η´. ἔχειν λέγων, ὅτι ὁ ἐξνερεδάτος μου ἀδελφὸς οἷα δὴ γεγονὼς ἐξνερεδάτος καὶ ἐφησυχάζων τετελευτηκέναι δοκεῖ, καὶ μόνος εἰμὶ τοῦ κατοιχομένου παῖς. Μόνον δέ με ὄντα δίκαιόν ἐστι, φησί, τὸ νόμιμον ἔχειν ποστημόριον.||B - What this might be, you learn more clearly. A fellow, that had two sons, constituted an extraneous heir and disinherited his sons, leaving one son an eighth of his estate and the other nothing . The son that was left nothing by his father kept quiet without, however, repudiating the querela . Rather the other son, that had received his eighth of the estate, against the will of the testator wants another eighth of the estate too, affirming: «my disinherited brother, given that he was disinherited and stays silent, appears dead, so I prove to be the decedent’s only son.» And adds: « it’s right that I have the reserved share of the estate that is due to me considering the fact that I am the only existing son.»|
|C - Ταῦτα λέγοντος αὐτοῦ καὶ δικαιολογουμένου φησὶν ὁ Παππιανὸς πάρτεμ ποιεῖν πἐκείνῳ τὸν ἐφησυχάζοντα, μὴ ῥεπουδιατεύοντος μέντοι ψυχῇ ἀδελφόν , τουτέστι μέρος ἔχειν σὺν ἐκείνῳ δοκεῖν, καὶ μὴ νομίζεσθαι μόνον εἶναι τὸν νῦν ἐπιφυόμενον παῖδα μηδὲ ὀφείλειν τέλειον κομίζεσθαι τὸ νόμιμον ποστημόριον·||C - In the matter of he who says such and affirms having this right, Papinian confirms that he must consider the brother that stays silent if he does not have animus repudiantis : that is to say, in other words, (Papinian confirms) that (the brother) appears to have a share with him (= other than him), and it is not possible to maintain that only that son exists, who has until now come forth, nor may he claim the entire reserved share of the estate;|
|D - pártem δὲ αὐτὸν ποιεῖν τῷ ἀδελφῷ τοσοῦτον, ὅτι ἔνθα μηδὲν αὐτῷ κατὰ γνώμην τοῦ τεστάτορος καταλέλειπται , καὶ ἁρμόττει δεϊνοφφικίοσο ἐπὶ καταλύσει τῆς διαθήκης, ἐφησυχάζει δὲ θάτερος τούτων, κινῶν ὁ ἕτερος οὐ πᾶσαν, ἀλλὰ κατὰ μέρος καταλύσει τὴν διαθήκην.||D – and (Papinian confirms again) that he ( i.e. the brother who remains silent) must be considered by his brother, so that if nothing has been left to the latter (i.e. the brother that intends to act in court) for will of the testator and he is due the querela de inofficioso to contest the validity of the testament, if one of these two remains silent, the other one that acts may rescind the testament, not in its entirety but in part.|
|E - Συνελόντα τοίνυν εἰπεῖν ὁ ἐξνερεδάτος παῖς κἂν ἐφησυχάζῃ, μὴ ῥεπουδιατεύοντος μέντοι ψυχῇ, πάρτεμ δοκεῖ ποιεῖν ἐκείνοις, οἷς ἅμα αὐτῷ τὸ τῆς ἀναπληρώσεως ἁρμόττει δίκαιον ἢ ἐπὶ καταλύσει τῆς διαθήκης ἡ μέμψις. Ἀνάγνωθι τὸ ιζ´. διγ. τοῦ παρόντος τιτ.||E - Simply put, the disinherited son, while silent, nevertheless without animus repudiantis , must be considered by those who, together with him, are due the right to either reinstate the reserved share of the estate or file querela to rescind the testament. See lex 17 of this Section.|
|F - Ταῦτα μὲν οὖν εἰ παῖδας ἔχων ἐξνερεδάτους ὁ τεστάτωρ ἐποίησεν αὐτοὺς κατὰ τὴν ἰδίαν διαθήκην. Τί δέ, ὅτι ἀπὸ δύο προτελευτησάντων παίδων ἔχων ἐγγόνους, ἀπὸ μὲν τοῦ ἑνὸς ἕνα καὶ μόνον, ἀπὸ δὲ τοῦ ἑτέρου δύο ἢ καὶ τρεῖς, βούλεται αὐτοὺς ἀποκλεῖσαι τῆς μέμψεως; Πόσον ἄρα τῆς αὐτοῦ περιουσίας τούτοις καταλιμπάνειν μέρος ὀφείλει; Τοῦτο δὲ ἡ ἐξ ἀδιαθέτου κανονίζει σοι κλῆσις. Εἰπὲ γάρ μοι, πῶς ἤμελλον οὗτοι κληρονομεῖν ἐξ ἀδιαθέτου καλούμενοι δηλονότι i̓nstiprés, τουτέστι κατὰ τὰς ῥίζας. Καὶ ὁ μὲν εἷς ἔγγονος, ὃς ἐξ ἑνὸς ἐτέχθη υἱοῦ, ἓξ ἐλάμβανεν οὐγκίας, οἱ δὲ ἐκ τοῦ ἑτέρου τεχθέντες, ὅσοι δ’ ἂν εἶεν, τὰς ἑτέρας ἕξ. ’In<sti>près γάρ, ὡς εἶπον, κληρονομοῦσιν οἱ ἐκ διαφόρων παίδων τεχθέντες ἔγγονοι. Οὐκοῦν τῷ μὲν ἑνὶ ἐγγόνῳ μίαν ἥμισυ καταλιμπάνων ὁ πάππος οὐγκίαν, τοῖς δὲ ἄλλοις τρισὶν οὖσιν ἀπὸ ἡμιουγκίου (τοῦτο γάρ ἐστιν αὐτοῖς τῶν ἐξ ἀδιαθέτου τὸ δ´.), τὴν οἰκείαν ἀσφαλίζεται διαθήκην.||F - What has been said holds for the case that the testator who has children and has dinsiherited them in his will. What can be said, instead, if, having grandchildren from the two predeceased sons – only one grandchild from one son; two or even three from the other son – the testator wants to exclude them from the querela ? What share of his estate must he leave them? This is clarified by the laws on intestate succession. Tell me effectively in which way it was forseen that these subjects would be heirs in intestate succession: certainly per stirpes , or representation. And (so) the grandchild born from one son received six twelfths, while the grandchildren born from the other son the remaining six. Indeed, as I said, the grandchildren born from different sons inherit per stirpes . Consequently, if the grandfather left the first grandchild an eighth and the other three grandchildren a twenty-fourth (which would be, indeed, a fourth of what they would be due ab intestato ), he would render the will valid.|
49 Segment A also begins with the principle that receiving the quarta debitae portionis ( i.e . – in Justinianic law – the reserved share of the estate, τὸ νόμιμον) blocks one from being able to file the action for undutiful will.
50 But one ought to note: after this was said, segment B describes a case that has disappeared in the Digest .
51 The case was this. A paterfamilias had constituted a heir who was an extraneous to the family, disinheriting his two sons, Primo and Secondo, and leaving (perhaps with donatio mortis causa or with bequest) an eighth of his estate, that is the equivalent of his quarta debitae portionis , to Primo (as the words written in bold in section B demonstrate).
52 Primo had petitioned while Secondo had not, without however developing – the scholion specifies – animus repudiantis (oὐ ῥεπουδιατεύων μέντοι τὴν μέμψιν: see the underlined words of section B).
53 The argument that Primo had presented to the court was that since Secondo had not acted, it was as if he did not exist in nature and therefore should not have to be considered. Hence, Primo asserted in court that it was not true that he was due only an eighth of the estate (or half of a fourth), but he sustained that he was due a fourth of the entire estate (claiming Secondo’s eighth too). One must incidentally observe that the action that Primo brought, which is referred to in the scholion , was not the classical querela inofficiosi testamenti (to which it is to be believed it was actually referred to in Ulpian’s original text), but rather the Justinianic actio ad implendam legitimam . An update of the classical action therefore intervened in time, updating it in the corresponding Byzantine law. But this particularity does not prevent the comprehension of what was the original content of the Ulpianic text.
54 It is well seen how it might be possible to put the examined case in relation with the underlying principle, that receipt of the quarta debitae portionis excluded possibility to bring the action for undutiful will: the relationship exists in the fact that Primo had not been totally disinherited by his father, but he had received an eighth of the estate. If that eighth of the estate had been for him the quarta debitae portionis , he would not have been able to file any petition to challenge the will’s validity. But Primo claimed that his brother, Secondo, partem non facebat , and therefore believed to be able to file rightly the actio ad implendam legitimam to recognize his right to a fourth of the inheritable estate (two eighths).
55 The jurist’s solution is reached in segment C. The scholion attributes Papinian with the response that, in a case like this one being examined, if Secondo stayed silent without animus repudiantis , he had to be considered by his brother, Primo (see the underlined words). And, therefore, Primo would not have been able to sue to obtain the distributive share due to his brother.
56 From this it can be deduced a contrariis that Papinian also held that if Secondo had instead manifested such animus , Primo could have rightfully claimed his brother’s share in court. Ulpian shared Papinian’s opinion.
57 This segment is important for our thesis as it proves that not just Paul – as believed by Voci – but also Papinian, followed by Ulpian, allowed ius adcrescendi if there was animus repudiantis . So, no controversia existed between jurists.
58 We come to examine segment D of the scholion . Compared to segment B, this one considered and confronted a different case: one in which both brothers (Primo and Secondo) had been totally disinherited by their pater (see the words in bold).
59 The difference between the case described in segment B and that considered in segment D is evident: in segment B, Primo had obtained an eighth of the estate; in segment D, he had not been alloted anything. Moreover, it ought to be noted that the question revolved around the fact that if, for Justinianic/Byzantine law, Primo could file not the simple actio ad implendam legitimam , but the querela inofficiosi testamenti to challenge the validity of the entire will.
60 Papinian’s solution was that if, of the two disinherited brothers, Primo had filed querela inofficiosi testamenti while Secondo had remained silent (but evidently without animus repudiantis 24 ), Primo would have been able to claim only his share ( querela pro parte ).
24. As it has been clearly said before, describing the case in B and in C. (...)
61 Segment E of the scholion articulated the legal principle that was the basis of the solution given for the two quaestiones posed in fragments B and D. We note that Papinian’s response was integrated with Justinianic law (with the reference to the actio ad implendam legitimam ).
62 The last segment, F, finally and more broadly corresponds to the third segment of Ulpian’s passage.
63 In drafting the text D. 18.104.22.168, the Justinianic Compilers, if what we have inferred from Sch. 18 is correct, perform a drastic reduction of the original text, eliminating an entire case (that of the brother that had received an eighth of the estate, which he believed did not represent his quarta debitae portionis ) and leaving only the case of the two totally disinherited brothers.
64 But in this way the second segment of D. 22.214.171.124 ceases to correspond with the first segment of the same passage.
65 Why did the Compilers eliminate this case? Because dealing with it, in 533, would have meant having to talk about – as happened in the scholion 18 25 – the actio ad implendam legitimam , which, although it had already existed for five years by that time, Justinian and Tribonian chose never to mention it in the Digest .
25. Instead, it is notable that the Basilicorum scholia do not consider neither Nov. 18 pr.-2 (which, in 536 brought the portio legitima to a third (...)
66 The examination of the passages from the Digest and the Basilicorum scholia , which have been considered, allow us to draw two conclusions: one limited to a specific subject of Roman law and the other more general.
67 First of all, thanks to the scholia we have been able to demonstrate that, contrary to what is held true by current mainstream doctrine on the subject of the querela inofficiosi testamenti , all jurists agreed on one point: if there were multiple forced heirs, the others benefited from an inheritance increase only if one of these repudiated the querela , otherwise there could be no increase.
68 The second conclusion is broader. In relation to the texts specifically examined, we can generally reaffirm a fact that, while not shared by everyone, is well noted in the Romanistic doctrine: some Basilicorum scholia provide a wealth of information and allow scholars to make out the original texts of the classical authors upon which the Justinianic Compilers were based, permitting them to perceive in which way the compilers sometimes brutally worked on the texts that they found themselves handling.