CURIANUS' MOTHER'S WILL

Beginning students in Roman law tend to be surprised to discover that Roman women, especially married Roman women, could make wills. It is probable that Pomponia Galla was a widow.

However, women did labour under some restrictions at this date. So long as their father was alive they no less than their brothers were in patria potestas and were as such unable to own property. Once they escaped from this status on their father's death, however, they came under the formal responsibility of a guardian. Unlike their male counterparts they could not deal with their own property without the consent of their guardian. The origin of this limitation lies in the fact that once upon a time guardians were drawn from amongst the woman's nearest male relatives (typically an uncle). On intestacy this person would be the woman's nearest heir and his control of her affairs (among other things) could prevent her making a will. By AD 100 this restriction on women's activities was perceived to be potentially irksome.

Women could make wills with the consent of their guardian but had first to undergo a formal ceremony detaching themselves from their birth family. This formality, which was not abolished until the time of Hadrian, was necessary to ensure that no near male relative could come forward to claim that he was entitled to the estate on intestacy because his rights as natural guardian had been overlooked. We must suppose that Pomponia Galla underwent such a procedure which required her to be sold (by herself) to a willing collaborator who would then release her from technical servitude into a status indepen­dent of her former family. Released from the tyranny of family connections she was now free to leave her wealth as she chose; but since none was now entitled to an intestate claim the need to ensure that the will made was valid and applicable became all the more important.

The Roman will in the classical period was one of a number of legal insti­tutions which depended for its efficacy upon the formal legal act known as mancipatio. Originally a form of completed sale transaction mancipatio engaged the “seller” and the “buyer” in a formal exchange in which the object to be sold was taken by the “buyer” who declared that it had become his as a result of the “sale”. The price was represented by a lump of uncoined bronze placed upon a bronze scale and held symbolically by a scale-holder. In addition the act required the presence of five adult male witnesses. It was mancipatio which was utilised in order to sell a woman out of her family in order to enable her to make her will: in this case the “buyer” made a formal statement to the effect that this is why the act was being performed which may, amongst other things, have had the effect of preventing his exploiting the situation to his own advantage.^[234] He became what we would call in English a trustee.

In order to effect a will the mancipatio ceremony was used formally to transfer the seller and will-maker's property to a third party, not a benefi­ciary under the will. He made a statement to the effect that the transfer was being performed testamenti causa. As before this seems to have limited the recipient's capacity to exploit the situation to his own advantage. The sole effect of the transaction in Pliny's day was to make the will now valid (though not of course effective until after the testator's decease). It might be assumed that the legal dodge worked because the third party “buyer” was now under an obligation (we would call him a trustee) to allow the testator to enjoy his property as before until his death and then to arrange for the will to take effect. But the third party does not develop into a sort of executor. Rather he disappears altogether so that it cannot be argued, say, that if he himself predeceases the testator the testament itself is at risk.

Mancipatio’s basic use in Pliny's day was as a means of conveyance. Certain valuable objects, including land and slaves, could only be transferred to another if this (or other equally formal act) was performed. Women could dispose of their ordinary property without difficulty but they needed the formal assistance of their guardian to effect a mancipatio. The rationale seems to have been to limit the damage to the inheritance to presumptively valuable objects. (But if so the presumptions are those of a very basic agricul­tural economy: in Pliny's day a woman might own many more valuable and easily disposable objects than land or slaves.) Assuming then that she did not have the right of three children Pomponia Galla would require the services of a guardian in order to make her will.

In her will Pomponia disinherited her son. Children had a vested right to inherit from their fathers (at least so long as they were in their father's potestas). If there were no will then sons and daughters equally had a first claim upon the inheritance.

A child whose father had taken all appropriate steps to effect a disinher­ison might still try to recover the position. A special procedure, a complaint of an unduteous will, was available to complain of an unjust disinheriting. Amongst other peculiarities the procedure was only available in Pliny's time in the centumviral court. As a practitioner in the court Pliny can be assumed to have had some experience and detailed knowledge of the working of this remedy.^[235] Sadly we are less well informed than he as the compilers of the Digest have removed most references to the institution.^[236]

But children had no civil law rights of inheritance from their mothers. The explanation is twofold. In the early Republic when marriage implied subordi­nation of women to their husbands a mother who predeceased her husband would have nothing of her own to leave. Were she to survive her husband she shared with her children in the distribution of an intestate estate and might be thought to owe them little out of her share. With the rise of free marriage women were free, at least after their father's death, to accumulate on their own account. But at civil law such a woman was not related to her children. She remained in her birth family on marriage and her children became, as a corollary of paternal subordination, members of her husband's family. On such a woman's death, if she made no will, her civil law heirs were her father's family - typically her paternal uncles and aunts or their descendants. If she chose to make a will she had no obligation to consider their interests - indeed they would no longer have any interests because the self-sale which the woman had to undergo to qualify herself to make a will removed her from her birth family so that she no longer had any relations. There was eventually legislation which mitigated this anomaly but not before the beginning of the second century AD.^[237]

Curianus could not, therefore, take proceedings in the praetor's court in an attempt to upset his mother's will. But, as appears from this very story, it was still open to him to take proceedings in the centumviral court in a complaint of an unduteous will.

D.