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It is one of those fables that the disinherited folk have at all times invented to solace themselves for their disinherison. The sudden and fated rise of one of the folk to the heights of power occurs sufficiently often to afford material for the day dreams of ambitious youth.
And this disinherison was first allowed by the lex Iunia Vallaea, which explains the form which is to be used, and which resembles that employed in disinheriting family heirs born after the making of a will. 3 It is not necessary, by the civil law, to either institute or disinherit emancipated children, because they are not family heirs.
And these persons the ascendant was not obliged to specially disinherit; he could disinherit them collectively by a general clause. 1 Special disinherison may be expressed in these terms 'Be Titius my son disinherited, or in these, 'Be my son disinherited, without inserting the name, supposing there is no other son.
They tell us of the boundless license of disinherison in which the heads of families instantly began to indulge, of the scandal and injury to public morals which the new practices engendered, and of the applause of all good men which hailed the courage of the Prætor in arresting the progress of paternal depravity.
It did not forbid the disinherison of direct descendants, inasmuch as it did not legislate against a contingency which no Roman lawgiver of that era could have contemplated. No doubt, as the offices of family affection progressively lost the aspect of primary personal duties, the disinherison of children was occasionally attempted.
7 A mother or maternal grandfather is not bound to institute her or his children or grandchildren; they may simply omit them, for silence on the part of a mother, or of a maternal grandfather or other ascendant, has the same effect as actual disinherison by a father.
4 Adopted children, so long as they are in the power of their adoptive father, are in precisely the same legal position as children born in lawful wedlock; consequently they must be either instituted or disinherited according to the rules stated for the disinherison of natural children.
He certainly therefore did not mean to strengthen his title by marrying his neice to the disinherison of his own son; and having on the loss of that son, declared his nephew the earl of Lincoln his successor, it is plain that he still trusted to the illegitimacy of his brother's children: and in no case possibly to be put, can it be thought that he wished to give strength to the claim of the princess Elizabeth.
6 If a soldier engaged on actual service makes a testament without specially disinheriting his children, whether born before or after the making of the will, but simply passing over them in silence, though he knows that he has children, it is provided by imperial constitutions that his silent pretermission of them shall be equivalent to special disinherison.
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