The law of disherison

Abstract

To understand better our law of disherison it is essential to examine its development in Roman law; besides, this part of the law is of the greatest interest because of the praetor's intervention and because of the legal fictions that were evolved to protect persons disinherited or passed over. We find that in ancient Greece when the testator had male children he could not dispose of his property by will; but a law expressly laid down that a man who had legitimate sons could make a will which would become valid if they died while still minors (Harrison, A.R.W.; "The Law of Athens", P. 152). Yet this notwithstanding it seems that the father could disinherit a child, so long as such disherison was founded on some injury the child had been guilty of towards the father, on the child's prodigality or on some serious violation of the child's duties towards his father (Meursio, Themis, attic., 1, c. 2; Bunsen, De Jure haered. athen.; Sam. Patit. Leg. attic., p. 576). Themistocles was in fact disinherited by his father for his being a prodigal and for his uncontrolled way of life (Corn. Nip., Temist.,1). The will was recognised in Roman law from a very early date; it was already known to the Twelve Tables. From the time of the law of Solon (594 B.C.) which is reputed to have influenced the formulation of the XII Tables, testamentary dispositions were known under Attic Law. Though the idea was of Greek origin, in being introduced into Roman Law it took on a Roman garb. Troplong and Sarafini are of the opinion that under early Roman law the testator could disinherit his "sui heredes" as he wished, even without reason. The position in early Roman law is obscure. Kaser says that persons could be deprived of their expectancy of future heirship be certain ats "inter vivas": sons could be 'paid offt by emancipatio, children could be given into another family by adoption, daughters could be given into marriage with "conventio in manum" (Kaser, Max; "Roman Private Law," 65, II, 1 b). The rule under the Twelve Tables was: "Dicat testator, et erit lex"; "Uti legassit paterfamilias super pecunia tutelare suae rei, ita jus esto." What did these words mean? According to Jolowicz, in the beginning there were two kinds of will, one made "comitiis calatis", the other "in procinctu". The part played by the people in the comitial will was to ratify by their votes the will made by the testator.