CURIANUS' QUERELA INOFFICIOSI TESTAMENTI

Pliny tells us that, failing in his efforts to persuade Pliny to act in his favour informally, Curianus brought an action in the centumviral court against the other heirs. Why Pliny himself was not joined in the action is not clear, though it is possible that Pliny's own account has disjoined the various elements in the story and that Curianus' dealings with him were part of a move to put pressure upon his fellow heirs after the action in the centumviral court had already begun.

The form of action Curianus brought is not specified but from the context, and in particular the terms of the eventual compromise reached in the case, it seems certain that it was the claim of an unduteous will. As we have seen this is a form of redress brought by one who has been properly, that is effectively, disinherited on the basis that the testator was acting unjustly in excluding him. In Curianus' case, because he has no civil law claim on his mother's estate, the effective disinherison consists simply in his being left out of the list of heirs.

It should be a surprise to learn that such an action could be brought at all. In a case against a father the logic seems to run as follows: a child should either be made heir or properly disinherited. If he (or she) is not properly disinherited then he can sue for a share in the praetor's court on the grounds of lack of proper process. Even if properly, effectively, disinherited a child may seek to question the propriety of the exclusion by raising it in the centumviral court. But all seems to rest upon the initial premise that the child is primafacie entitled to inherit. Only if the father follows the proper procedure and has a good reason can the child lose out.

For those who are not descended in the male line also have the power to bring an action, since they do so in respect of a mother's will and are constantly accustomed to win.^[243]

Indeed the number of cases of unduteous will claims against mothers in the Digest title 5.2 de inofficioso testamento indicates that it was perhaps more frequently used to get around this difficulty than it was used for the purpose of undoing the effect of categoric, i.e. legally required, disinherisons. Most of the citations are to juristic discussion after the reforms of AD 128 but there are sufficient references to the former state of affairs, for example to a decree of the deified Hadrian in Paul's discussion in D 5.2.28, to indicate that the general principle was not changed.

There is here perhaps an issue which has been overlooked. The arguments which by the end of the second century gave rise to the granting of automatic rights of intestate succession to children from their mother would seem to have been well established and understood a century before. Lacking any direct method of implementing this sort of claim, children resorted to the querela. Ulpian, writing indeed after the statutory change, notes that the querela is only worth bringing close to the direct line: cognates beyond a brother are wasting their money as they will not succeed:

D 5.2.1 It should be noted that complaints against the undutiful are common; for it is possible for everyone to argue want of duty, parents as well as children. For one's cognates beyond the degree of brother would do better not to trouble themselves with useless expense since they are not in a position to succeed.¹¹

But before AD 128 the only legal claim between a mother and her children on intestacy was in the praetorian category unde cognati.

H.