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Testamentum

A will. In order to be able to make a valid Roman will, the testator had to have the testamentifactio, a term expressing the legal capacity to make a valid will. The testamentifactio was the privilege only of Roman citizens who were patresfamilias. The following persons consequently had not the testamentifactio: those who were in the potestas or manus of another, or in mancipii causa, as sons and daughters, wives in manu, and slaves; Latini Iuniani and Dediticii; Peregrini who could not dispose of their property according to the form of a Roman will; and an impubes or minor could not dispose of his property by will even with the consent of his tutor. When a male was fourteen years of age, he obtained the testamentifactio, and a female obtained the power, subject to certain restraints, on the completion of her twelfth year: deaf and dumb persons and lunatics (muti, surdi, furiosi, and prodigi) had not the testamentifactio. In order to constitute a valid will, it was necessary that an heir (heres) should be instituted, which might be done in such terms as follows: Titius heres esto; Titium heredem esse iubeo. Originally there were two modes of making wills; either at the Comitia Calata, which were appointed twice a year for that purpose, or in procinctu—that is, when a man was going to battle. A third mode of making wills was introduced which was effected per aes et libram, whence the name of testamentum per aes et libram. If a man had neither made his will at the Comitia Calata nor in procinctu, and was in imminent danger of death, he would mancipate (mancipio dabat) his familia—that is, his patrimonium—to a friend, and would tell him what he wished to be given to each person after his death. There seems to have been no rule of law that a testament must be written. The heir might either be made by oral declaration (nuncupatio) or by writing. Written wills, however, were the common form among the Romans, at least in the later republican and in the imperial periods. They were written on tablets of wood or wax, whence the word cera is often used as equivalent to tabella; and the expressions prima, secunda cera are equivalent to prima, secunda pagina. The will must have been in some way so marked as to be recognized, and the practice of the witnesses (testes) sealing and signing the will at last became common. It was necessary for the witnesses both to seal (signare)—that is, to make a mark with a ring (anulus) or something else on the wax—and to add their names (adscribere). Wills were to be tied with a triple thread (linum) on the upper part of the margin, which was to be perforated at the middle part, and the wax was to be put over the thread and sealed. Tablets which were produced in any other way had no validity. A man might make several copies of his will, which was often done for the sake of caution. When sealed, it was deposited with some friend, or in a temple, or with the Vestal Virgins; and after the testator's death it was opened (resignare) in due form. The witnesses or the major part were present, and after they had acknowledged their seals, the thread (linum) was broken and the will was opened and read, and a copy was made; the original was then sealed with the public seal and placed in the archium, whence a fresh copy might be had, if the first copy should ever be lost. See Gans, Das Erbrecht; and the articles Heres; Legatum.

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