TESTAMENTUM
TESTAMENTUM is defined by Ulpian as being “mentis
nostrae justa contestatio in id sollemniter facta ut post mortem nostram
valeat.” (Cf. Modestinus in
Dig. 28,
1,
1: “Testamentum
est voluntatis nostrae justa sententia de eo, quod quis post mortem suam
fieri velit.” ) In this passage the word
justa means
jure facta,
“as required by law.” The
[p. 2.801]word
contestatio is here equivalent to
testatio, which is the act of making a solemn
declaration before witnesses, and so of making a will or testament (cf.
Voigt,
Zwölf Taf. 1.19). Gellius (vi, 12) properly
finds fault with Servius Sulpicius for saying that testamentum is compounded
“a mentis contestatione.” He who made a testamentum was
testator (
Suet. Nero 17).
In order to be able to make a valid Roman will, the testator must have the
testamentifactio (
Cic.
Fam. 7.2. 1), which term expresses the legal capacity to make a
valid will; the word has also other significations. [
HERES] The right of making a will was the privilege
only of Roman citizens who were patresfamilias, except that filiifamilias
were allowed to make a will respecting their
castrense or
quasicastrense peculium.
[
PATRIA POTESTAS]
The following persons consequently had not testamentary capacity: those who
were in the
potestas or
manaus of another; or
in mancipii
causa [
MANCIPII
CAUSA], as descendants subject to power, though with the
above-mentioned dispensation in favour of filiifamilias, wives
in manu, persons in the semi-servile state of
mancipium and slaves, except that
servi publici were allowed to dispose of half their
peculium (Ulp. 20.16); Latini Juniani: died
like slaves in respect of property, and so could not make a will;
peregrini and
peregrini
dediticii were devoid of testamentary capacity; an
impubes could not dispose of his property by will,
even with the sanction (
auctoritas) of his
tutor (for an account of the
substitutio
pupillaris, see
HERES).
When a male became
pubes--that is, was fourteen
years of age--he became capable of making a will, and a female obtained the
power, subject to the limitations explained below, on the completion of her
twelfth year:
muti, surdi, furiosi, and
prodigi,
“quibus lege bonis interdictum est,” had not the
testamentifactio. The reasons why these several
classes had not the
testamentifactio were: the
mutus, because he could not utter the words of
nuncupatio; the surdus, because he could not hear the words
of the
familiae emptor; the furiosus, because
he had not intellectual capacity to declare his will (
testari) about his property; and the prodigus, because he had
no
commercium (Ulp.
Fragm.
20.3). Justinian removed the testamentary incapacity of surdi and muti,
which had previously been a subject of imperial dispensation (Cod. 6, 22,
10: cf. Inst. 2.12, 3). The penalty of testamentary incapacity was imposed
on certain classes of persons by statute (
Gel.
15.13;
Dig. 28,
1,
18.1, 26; Theoph.
ad Inst. 2.10, 6). [
INTESTABILIS]
Women had originally no
testamentifactio, as their
right of disposing of property was restricted in order to serve the interest
of their agnates, and they had been incapable of making a will in early
times on account of their inability to take part in the proceedings of the
Comitia, where wills had to be made (cf.
Gel.
5.19, “quoniam et cum feminis nulla comitiorum communio
est” ). When they did acquire the power, they could only exercise it
by means of certain juristic contrivances, to which we find references in
the writings of Cicero and of Gaius. Of course a daughter in the power of
her father, whether she was married or unmarried, and a wife
in manu, could never make a will, since they could
not hold property. The rules therefore as to a woman's power of making a
will could only apply to unmarried women after the death of their father or
after emancipation from his power, and to married women who were not in the
power of a father or a husband (Karlowa,
Die Formen der röm.
Ehe, 96, &c.). In order to qualify a woman who had
independent property to make a will, it was necessary that she should cease
to be a member of her familia by undergoing a capitis deminutio, a change
which required the concurrence of her agnatic tutor. The capitis deminutio
was effected by a
coemptio fiduciae causa, the
coemptionator or purchaser of the woman acquiring
manus over her, though only as a matter of form, and being bound
by a fiducia to remancipate her to some one of her choice. The person to
whom she was remancipated became her fiduciary tutor, and gave his formal
sanction (
auctoritas) to her will, which was
required in order to give it legal validity. It will be seen from the above
that a woman was incapable of making a will unless she obtained the consent
of her agnatic tutor, who, as being her intestate heir, would be interested
in preventing her from disposing of her property. The agnatic tutela of
women was abolished by the Lex, Claudia (Gaius, 1.157, 171; Ulp. 11.8); but
the auctoritas of a tutor was still required, as a matter of form, to enable
a woman to make a will, except in certain privileged cases (Gaius, 2.112;
Ulp. 20.15). On the recommendation of Hadrian, the senate made the ceremony
of
coemptio unnecessary for the purpose of
giving legal validity to a woman's will (Gaius, 1.15 a). Between the time of
Gaius and the publication of the Theodosian Code, the
perpetua tutela of women became obsolete, and with it the
last formal difference between their wills and those of men.
In accordance with the above explanation, Cicero observes
(
Top. 4, 18): “If a woman has made a will, and has
never undergone a capitis deminutio, it does not appear that the Bonorum
Possessio can be granted in pursuance of such will according to the
Praetor's edict; for, if it could, the edict must give Bonorum Possessio
in respect of the wills of servi, exules, and pueri.” The Bonorum
Possessio or praetorian title to the inheritance was not given by the
Praetor to persons who were incapable of taking the hereditas; accordingly
Cicero means that, if a woman made a will without having sustained a capitis
deminutio, the will could have no effect at all in giving a praetorian title
to the inheritance, any more than the wills of other persons who had not the
testamentifactio. The case of Silius (
Cic.
ad. Fam. 7.2. 1) may be a case of a woman's
making a will without coemptio, for it appears that a woman (Turpilia) had
disposed of property by will, and Servius Sulpicius was of opinion that this
was not a valid will, because the will-maker had not the testamentifactio.
The following references may be consulted as to this matter:--Cic.
pro Caecin. 6, 17;
pro Flacc. 35, 86;
pro Muren. 12, 27;
ad Att. 7.8;--
Liv. 39.19; Gaius, 1.150.
Libertae could not make a will without the auctoritas of
their patronus, for they were in the tutela legitima of their patronus: the
patron was always allowed to refuse his sanction to such a will. Libertae
who had a certain
[p. 2.802]number of children could,
however, make a will without the auctoritas of their patronus. [
PATRONUS] The Vestal Virgins
had no tutor, and yet they could make a testament. The Twelve Tables
released them from all tutela “in honorem sacerdotii” (
Cic. de Rep. 3.10, 17; Gaius,
1.145).
In order to constitute a valid will, it was necessary that a heres should be
instituted, which might be done in such terms as the
following:--“Titius heres esto, Titium heredem esse jubeo.”
(Ulp. 24.15, “Ante heredis institutionem legari non potest, quoniam
vis et potestas testamenti ab heredis institutione incipit.” )
All persons who had the commercium could be heredes; slaves also could be
made heredes,--a testator's own slave, if the institution was coupled with
his manumission; the slave of another, if there was testamentifactio between
the testator and his master, the slave in this case acquiring the
inheritance for his master by command of the latter.
But there were many classes of persons who could not be heredes: such were
peregrini and peregrini dediticii, as having no commercium, and Latini
Juniani, by the provision of the Lex Junia. Whether according to primitive
law women could be made heredes is uncertain, but from an early time they
were on the same footing as men in this respect, until by the Lex Voconia
(B.C. 69) they were made incapable of being heredes to a person in the first
class of the census (
Cic. in Verr.
1.42, 107;
Gel. 7.13). There was a
rule that
incertae personae could not be
instituted; hence it was originally impossible to institute posthumous
persons, though in course of time forms of instituting and exheredating
postumi sui were established. [
HERES] Though unascertained
persons could not, generally speaking, be instituted, their institution came
to be allowed if they were instituted
sub certa
demonstratione: e.g. “ex cognatis meis, qui nunc sunt,
si quis filiam meam uxorem duxerit.” Justinian made their
institution valid in all cases, provided that they became determinate
subsequent to the making of the will. Originally juristic persons could not
be instituted, since they could not themselves perform the legal act of
entering on an inheritance (cf. Ulp. 22, 5: “Nec municipium nec
municipes heredes institui possunt, quoniam incertum corpus est, et
neque cernere universi neque pro herede gerere possunt, ut heredes
fiant” ); but this rule was never applicable to the aerarium or to
the fiscus, and in the case of other juristic persons exceptions were
gradually made to it: thus municipalities were made capable by
senatusconsulta of inheriting the property of their own freedmen (Ulp. 22,
5); exceptions were also made by statute in favour of certain gods and
goddesses, viz. Jupiter Tarpeius, Apollo Didymaeus, Mars in Gallia, Minerva
Iliensis, Hercules Gaditanus, Diana Ephesia, Mater Deorum, Siphylensis quae
Smyrnae colitur, Caelestis Salinensis in Carthage (Ulp.
l.c. § 6). According to the law of Justinian, churches,
piae causae, and communes were capable of being instituted; other juristic
persons only if specially privileged in this respect.
Besides capacity on the part of the testator and the person instituted heres,
there must be a proper observance of the forms required by law for the
validity of a will. Thus we come to consider the rudimentary forms of a
Roman will and their subsequent modifications. The earliest will or
testament was made
calatis comitiis; that is,
in the Comitia Curiata, which were summoned (
calata) twice a year for this purpose (Gaius, 2.101; Ulp. 20, 2;
Inst. 2.10, 1, cum Theoph.;
Gel. 15.27). The
testamentum calatis comitiis was probably an adoption by a person who had no
children of an intestate
suns heres rather than a
will in the strict sense (cf. Schulin,
Das griechische Testament
verglichen mit dens römischen; and as to the use of
adoption for the purpose of disposing of an inheritance in Hindoo Law, see
Maine's
Ancient Law, p. 193). The adoption was, we may
suppose, of a peculiar kind, the person who was the object of it not being
regarded as the testator's son till after the death of the latter, and then
only in case there had been no revocation of the disposition. The proceeding
would be of a legislative character in its form, somewhat similar to that of
arrogation; for the opinion of some writers, that the populus only bore
witness to the transaction in its Comitia and did not sanction it, does not
seem to rest on good ground. No doubt, however, the consent of the populus
was from an early time little more than a formality (Gans,
Erbrecht, 2.27; Ihering,
Geist d. r. R. 1.145;
Schulin,
l.c.; Sohm,
Institutionen,
§ 99). A will was also valid in early times which was made
in procinctu; that is, one declared by a man before
his comrades when in the field before the enemy; for an army in movement and
under arms is
procinctus (Festus, s. v.
Procincta; Gaius,
l.c.). A third mode of making
wills was introduced, which first existed alongside and then superseded the
older forms. It was effected
per aes et libram;
that is, by mancipium, whence the name of
testamentum per
aes et libram, or mancipative will.
The origin of this mode of testamentary disposition may have been to enable
plebeians to make a will, they being excluded from the Comitia Curiata, but
the patricians must have soon found it convenient to use the same form. The
power of making provision respecting the disposition of property after death
is expressly recognised by the law of the Twelve Tables in the words
“uti legassit super pecunia tutelare rei suae ita jus
esto,” the word
legare being here
equivalent to
legem dicere--that is, to declare
the law which was to govern the devolution of property (Muirhead,
Roman Law, p. 167, n. 1). Thus, according to the law of
the Twelve Tables, if a man had neither made his will at
calata comitia nor in
procinctu,
and was in imminent danger of death, he would mancipate (
mancipio dabat) his familia--that is, his patrimonium or
family property--to a friend, and request him to carry out his wishes after
his death. The
familiae emptor--that is, the
person to whom the familia was conveyed by mancipation--is said by Gaius to
have been in the place of heres (
loco heredis),
the testator having instructed him as to what he wished to be given to each
legatee after his death. We cannot gather from Gaius that the familiae
emptor ever acquired a beneficial interest in the property mancipated to
him, as Sir H. Maine (
Ancient Law, ch. vi.) states, but only
loco heredis for the purpose of paying legacies, and possibly for the
purpose of
[p. 2.803]paying in the first place the debts of
the deceased, though this is not stated. It is not probable that the
familiae emptor became personally liable for the testator's debts. His
function seems in fact to have been somewhat analogous to that of an
executor in English law, especially if only the movable property could be
the subject of such a disposition in early times, as may possibly have been
the case. That the familiae emptor was regarded as a mere mandatory for
carrying out the wishes of the testator, and had no right to derive any
benefit from the estate, is shown by the formal words used in the
mancipation to him, “familiam pecuniamque tuam endo
mandatela tua custodelaque mea” (Gaius, 2.104). We may
infer from the fact of the familiae emptor being
loco
heredis, that he could be legally compelled to carry out the
testator's wishes, and was not simply bound in good faith to do so.
According to Sir H. Maine (
Ancient Law, l.c.), the effect of
the mancipation was to vest the inheritance immediately and irrevocably in
the familiae emptor, a mancipation being an
actus
legitimus not admitting of
condicio or
dies. But this view of
the transaction appears to be defective in that it takes no account of the
power of making a qualified mancipation, recognised by the Twelve Tables in
the words, “Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita
jus esto” (Festus, s. v. Nuncupata). Accordingly the familiae
emptor would be subject to the terms imposed on him by the nuncupation which
was a part of the mancipation, and by these the mancipant would reserve
possession of his property during his lifetime, together with a right of
revoking his disposition at pleasure. The familiae emptor would, in
fact,become merely formal owner of the property. It will be seen from the
above that the mancipative will in its rudimentary form was not a unilateral
proceeding, like the later will, but a transaction
inter
vivos, not intended to operate as a universal succession to a
heres, but made for the purpose of distributing property to legatees by way
of singular succession.
In course of time a great change took place in the character of the
mancipative will, in that the familiae emptor ceased to fulfil any real
function, and was no longer regarded as even the formal owner of the
inheritance. The testator by his will, expressed either in writing or by
word of mouth at the time of the mancipation, instituted a heres as his
universal successor, who was personally liable to creditors, and who took
the inheritance subject to any legacies with which the testator had charged
it. Henceforward a testamentum may be defined as a last will by which a
heres is instituted (
Dig. 29,
7,
20: “Julianus ait, tabulas
testamenti non intellegi, quibus heres scriptus non est, ut magis
codicilli quam testamentum existimandae sint” ). The will might
be oral or written, but the ordinary practice was to make a written will, so
that the dispositions of the testator might not be known till after his
death. The mode of proceeding was this (Gaius, 2.104). The testator, after
having written his will (
tabulae testamenti),
called together five witnesses, who were Roman citizens, and a libripens, as
in the case of other mancipationes, and mnancipated his property (
familia pecuniaque) [
FAMILIA] to some person in compliance with legal
forms (
dicis causa). This person, the familiae
emptor, uses these words, which have been already referred to as showing his
original function: “Familia pecuniaque tua endo mandatelam tuam
custodelamque meam, quo tu jure testamentum facere possis secundum legem
publicam, hoc aere (et ut quidam adjiciunt aenea libra) esto mihi
empta.” The emptor then struck the scales with a piece of money which
he gave to the testator as the price of his purchase; after which, the
testator, taking the will in his hand, said: “Haec ita ut in his
tabulis cerisque scripta sunt ita do ita lego ita testor itaque vos
Quirites testimonium mihi perhibetote.” This was called the
nuncupatio or publishing of the will; in
other words, the testator's general confirmation of all that he had written
in his will, which derived its legal effect from the clause in the Twelve
Tables quoted above.
As the familiae emptio was supposed to be a real transaction between the
emptor and testator, the testimony of their several families was excluded,
and consequently a person who was in the power of the familiae emptor, or in
the power of the testator, could not be a witness. If a man who was in the
power of another was the familiae emptor, it followed that his father could
not be a witness, nor his brother, if the brother was in the power of the
father. A filiusfamilias who after his
missio
disposed of his
castrense peculium by
testament, could not have his father as witness nor any one who was in the
power of his father. The same rules applied to the libripens, for he was a
witness. A person who was in the power of the heres or of a legatee, or in
whose power the heres or legatee was, or who was in the power of the same
person as the heres or a legatee, and also the heres or a legatee, could all
be witnesses, since neither the heres nor the legatees were parties to the
mancipation. But Gaius observes that it would be improper for the heres, and
the man who is in the power of the heres or in whose power the heres is to
witness the will. According to the law of Justinian, a person in the familia
of the heres could not be witness to the will (Inst. 2.10, 10).
The Edict established a less formal kind of will, since it acknowledged the
validity of a written will when there had been no mancipatio, provided there
were seven witnesses and seven seals, and the testator had the
testamentifactio at the time of making the will and at the time of his death
(Gaius, 2.147). The terms of the Edict are given by Cicero (
in
Verr. 1.1, 45). The Edict only gave the Bonorum Possessio or
Praetorian title to the inheritance, which was not effective (
sine re) against the civil title
ab intestato of an agnate, until it was made so (
cum re) by a rescript of Marcus Aurelius (Gaius,
2.120). This so-called Praetorian testament existed in the Republican
period. Thus a man had his choice between two forms of making his will; the
Civil form by mancipatio, and the Praetorian with seven seals and seven
witnesses, and without mancipatio (Savigny,
Beitrag zur Geschichte
der röm. Testam.,
Zeitschrift, vol. i.
p. 78).
The Praetorian testament prepared the way for the abolition of mancipatio,
the essential character of a will made according to the Jus
[p. 2.804]Civile, and in the legislation of Justinian the form of making
a testament was simplified. It required seven male witnesses of competent
age and legal capacity, and the act must be done in the presence of all, at
the same place and at the same time; that is, it must be continuous. The
testator might declare his last will orally (
sine
scriptis) before seven witnesses, and this was a good will. If
it was a written will, the testator acknowledged it before the witnesses as
his last will, and put his name to it, and the witnesses then subscribed
their names and affixed their seals. [Cf. Inst. 2.10, 3: “Sed quum
paullatim tam ex usu hominum, quam ex constitutionum emendationibus
coepit in unam consonantiam jus civile et praetorium jungi, constitutum
est, ut uno eodemque tempore (quod jus civile quodammodo exigebat)
septem testibus adhibitis et subscriptione testium (quod ex
constitutionibus inventum est), et (ex edicto praetoris) signacula
testamentis imponerentur; ut hoc jus tripertitum esse videatur, ut
testes quidem et eorum praesentia uno contextu testamenti celebrandi
gratia a jure civili descendant, subscriptiones autem testatoris et
testium ex sacrarum constitutionum observatione adhibeantur, signacula
autem et numerus testium ex edicto praetoris.” ] The testator
might write his will or have it written by another person, but such other
person could derive no advantage under the will. [SENATUSCONSULTUM LIBONIANUM.]
It is natural that there should be much difference of opinion respecting the
nature of the earliest forms of Roman testament, since the evidence which
has come down to us on this subject is extremely scanty. Rein (
Das
röm. Privatrecht, p. 373, note) has referred to the
modern writers who have discussed this subject (for an account of the views
of recent writers, see Schulin,
l.c.): he has
adopted the opinion of Niebuhr, according to which, “as the property
of an extinct house escheated to the curia, that of an extinct curia to
the publicum of the citizens at large, the consent of the whole populus
was requisite; and this is the origin of the rule that testaments were
to be made in the presence of the pontiff and the curiae”
(
Hist. of Rome, vol. ii. p. 338). But there is no
evidence of the assertion contained in the first part of this passage; and
if this rule as to escheat is admitted to be a fact, the rule that
testaments must be confirmed by the pontiff and curiae is no necessary
conclusion. Niebuhr further observes that “the plebeian houses were
not so connected; but the whole order had a public coffer in the temple
of Ceres; and when the army, being assembled in centuries, either on the
field of Mars or before a battle, passed the last will of a soldier into
a law, it thereby resigned the claims of the whole body to the
property.” This assertion also is not supported by evidence, and is
therefore a mere conjecture against the probability of which there are
sufficient reasons.
If we are right in following the opinion of those who think that the
testamentum calatis comitiis was carried into effect by means of the
adoption of a heres, the consent of the pontiff and curiae was required in
order to give it effect, just as in the case of other adoptions or
arrogations. [
ARROGATIO] But
it is said that the power of disposition in the case of a testamentum in
procinctu could not depend on the consent of the whole populus, in each
particular instance; for the nature of the circumstances excluded such
consent. A Roman had therefore full power of disposition in procinctu, and
from this it is inferred as a probable conclusion that the will made at the
Calata Comitia was not a legislative act, but simply one declared before the
populus. This argument does not, however, seem to have much force, since it
is highly probable that the testamentum in procinctu was instituted at a
time when the consent of the Comitia to wills had become merely formal. The
adoption in the Comitia, or the simple designation of a person as adopted,
would come to be regarded as the institution of a heres, and so the
conception of a heres ex testamento would be established. Hence the
institution of a heres in a mancipative will may perhaps have been derived
from the idea of the designation of a heres in the Comitia, as universal
successor.
Some writers assert that the testamentum in, procinctu could only be made
after the auspices were taken, which gave the testament the religious
sanction; that when the auspices. ceased to be taken in the field, this kind
of testament ceased to be made; and that the military testaments mentioned
about the latter part of the Republic (as by Caesar,
Bell.
Gall. 1.39; Vel. Pat. 2.5, &c.) were not the same kind of
testaments, but purely military testaments made without any form, which in
the Imperial period became in common use and of which Julius Caesar probably
introduced the practice (
Dig. 29,
1,
de Testamento Militis). Cicero,
however, speaks of the will In procinctu (
de Or. 1.53) as
then in use, and he describes it as made “sine libra et
tabulis;” that is, without; the forms which were used after the
introduction of the testamentum per aes et libram. Thus the testamentum in
procinctu always retained its characteristic of being exempted from legal
forms, but as to the
capacity of the testator it was always subject to the same rules of
law as other wills, so far as we know.
The form of the mancipative will seems at first sight to favour the opinion
that the testamentum calatis comitiis was simply declared in the presence of
the populus, for it is generally admitted, and the extant passages are
consistent with the opinion, that the testamentary form
per aes et libram existed while the two original forms were
still in use. Now, in the testamentum per aes et libram there is no pretence
for saying that any consent was required, except that of the buyer and
seller; for though the five witnesses to the testament (
cives Romani puberes) may have been representatives of the
five classes of Servius Tullius, the classes were represented as witnesses
only, not as persons who gave their consent to the act. It seems improbable,
it is said, that there could have existed at the same time a form of
testamentum to which the consent of the testator was sufficient, and another
form in which it was not. But the only possible answer to this argument is
that the consent of the sovereign people had become a form, and therefore it
was indifferent, so far as concerns this consent, whether, the will was made
at the Comitia where it would be fully witnessed, or per aes et libram where
it would
[p. 2.805]be witnessed by the five representatives.
In the time of the classical jurists the testamentum per aes et libram was
the ordinary form of testament, according to Jus Civile; it is probable that
the testamentum calatis comitiis and in procinctu had long previously become
obsolete.
As already observed, there seems to have been no rule of law that a testament
must be written. The mancipatio required no writing, nor did the institution
of a heres. Thus it is said (
Dig. 28,
1,
21) that the heres 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 might be written either by the testator or by
any other person with his consent, and sometimes it was made with the advice
of a lawyer. It was written. in the Latin language, until A.D. 439, when it
was enacted that wills might be in Greek (Cod. 6, 23, 21). By the old law a
legacy could not be written in the Greek language, though a fideicommissum
could be so given. It does not appear that there was originally any
signature by the witnesses. The will was sealed, but this might be done by
the testator in secret, for it was not necessary that the witnesses should
know the contents of the will; they were witnesses to the formal act of
mancipatio, and to the testator's declaration that the tabulae which he held
in his hand contained his last will. It must, however, have been in some way
so marked as, to be recognised, and the practice of the witnesses (
testes) sealing and signing the will became common.
(As to the will of Claudius, see Suetonius,
Claudius, 44.) 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). The five
witnesses signed their names with their own hand, and their adscription also
declared whose will it was that they sealed (
Dig.
28,
1,
30). The
seals and adscriptions were both on the outside. A senatusconsultum, which
applied to wills among other instruments, enacted that they should be
witnessed and signed as follows: they 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. Tabulae which were produced in any other way had
no validity. (Compare Paulus,
S. R. 5.25, 6, where
impositae seems to be the true reading, with
Suet. Nero 17.) A man might make several copies
of his will, which was often done (
ut vulgo fieri solet,
Dig. 31,
1,
47; a case put to Proculus) for the sake of caution.
Both Augustus and Tiberius made two copies of their wills (
Suet. Aug. 101;
Tiber. 76).
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 got, if the
first copy should ever be lost (Paulus, 4.6). This practice, described by
Paulus, may have been of considerable antiquity. The will of Augustus, which
had been deposited with the Vestal Virgins, was brought into the senate
after his death (
Tac. Ann. 1.8): none of the
witnesses were admitted except those of senatorial rank; the rest of the
witnesses acknowledged their signatures outside of the Curia (
Suet. Tib. 23).
A passage in a Novel of Theodosius II. (A.D. 439,
de
Testamentis) states the old practice as to the signature of
the witnesses. “In ancient times a testator showed (
offerebat) his written testament to the witnesses, and
asked them to bear testimony that the will had so been shown to them
(
oblatarum tabularum perhibere
testimonium),” which are almost the words of Gaius. The
Novel goes on to state that the ignorant presumption of posterity had
changed the cautious rule of the ancient law, and the witnesses were
required to know the contents of the will; the consequence of which was that
many persons preferred dying intestate to letting the contents of their
wills be known. The Novel enacted what we may presume to have been the old
usage, that the testator might produce his will sealed, or tied up, or only
closed, and offer it to seven witnesses, Roman citizens and puberes, for
their sealing and adscription, provided at the same time he declared the
instrument to be his will and signed it in their presence, and then the
witnesses affixed their seals and signatures at the same time also. A will
was opened in the presence of the witnesses to it, so that they might
acknowledge their seals, and, having been read, copies of it were allowed to
be taken; it was then sealed up and deposited in the public archives (Paul.
4.6, 1). Valentinian III. enacted that if a testamentum was holographum,
witnesses were not necessary.
A fragment of a Roman will, belonging to the time of Trajan, was published by
Puggé in the
Rheinisches Museum, vol. i. p. 249,
&c.; and it is explained by Rudorff (
Das Testament des
Dasumius, Zeitschrift, &c. vol. xii. p. 301).
The penalties against fraud in the case of wills and other instruments were
fixed by the Lex Cornelia. [
FALSUM]
The institution of a heres was essential to a will. A will was either wholly
or partly invalid in which sui heredes were neither instituted nor
exheredated, but simply passed over in silence; the praetor made a similar
rule in the case of emancipati. The rules on this subject are stated in
HERES (Roman) and
BONORUM POSSESSIO
A testament which was invalid from the first was
injustum or
non jure factum, when
the proper forms had not been observed; a void will is sometimes said to be
nullum or
nullius
nomenti, as in the case of a filiusfamilias who is
praeteritus. A testamentum justum might become
either ruptum or irritum or destitutum in consequence of subsequent events
(
Dig. 28,
3,
1).
A testament became
ruptum if the testator made a
subsequent testament in due form as required by law: and it made no matter
whether or not there turned out to be a heres
[p. 2.806]under the second will: the only question was whether there could have been
one. If then the heres named in the second will refused the hereditas, or
died either in the lifetime of the testator or after his death, and before
the cretio, or failed to comply with the conditions of the will, or lost the
hereditas under the Lex Julia et Papia Poppaea--in all these cases the
paterfamilias died intestate.
The testator must have a capacity to make a will, and continue to have the
capacity until his death; but this principle does not apply to mental
sanity, for the will was valid if the testator became insane. But the will
became
irritum if the testator sustained a
capitis deminutio after the date of the will; or if it failed of effect
because there was no heres, it was
destitutum.
If a will failed to take effect for want of a heres, the deceased died
intestate; the intestate heir might, however, be bound to carry out the
provisions of the will, if requested to do so by fideicommissum. (As to the
use of
substitutio for the purpose of
preventing intestacy, see
HERES）
If a will took effect, the whole property of the deceased passed to the
heirs instituted in the will, whether or not this was the intention of the
deceased. The rule “nemo partim testatus et partim intestatus decedere
potest” may be explained by the fact of the will having developed
out of adoption.
If a man who had made a will was taken prisoner by the enemy, his will was
good
jure postliminii if he returned home; if
he died in captivity, it was made as valid by the Lex Cornelia as if he had
not been a captive.
Though a will might be injustum and irritum by the Jus Civile, it was not
always without effect; for the Bonorum Possessio secundum tabulas might be
had by the scriptus heres, if the will was witnessed by seven witnesses, and
if the testator had the testamentifactio, at the time of making the will and
at the time of his death, though not at some intervening period. The
distinction between the case of a will which was invalid Jure Civili for
want of due forms, and one which was invalid for want of legal capacity to
dispose of property by will, was well recognised in the time of Cicero
(
Top. 11). A will also became ruptum by agnatio; that is,
if a suus heres was born after the making of the will who was not either
instituted heres or exheredated, as the law required. A quasi agnatio also
arose by adoption, or by the in manum conventio, or by succession to the
place of a suus heres, as in the instance of a grandson becoming a suus
heres in consequence of the death or the emancipation of a son: a will also
became ruptum by the manumission of a son, that is, where the son after a
first and second mancipation returned into the power of his father. [EMANCIPATIO; HERES.]
A testament was called
inofficiosum which was
made in legal form, “sed non ex officio pietatis.” For
instance, if a man had exheredated his own children, or passed over his
parents, or brothers or sisters, the will was in form a good will; but if
there was no sufficient reason for this exheredation or praeterition, the
persons aggrieved might have an
inofficiosi
querela. The ground of the complaint was the allegation that the
testator was “non sanae mentis,” so as to have capacity to make
a will. It was not alleged that he was furiosus or demens, for these were
technical words which implied complete legal incapacity. Perhaps this
fiction of insanity was derived from Greek law,
μανία of the testator having been the alleged ground under early
Attic law for actions brought by relations to set aside wills in which they
were disinherited (Schulin, 16; Sohm,
Inst. § 100,
n. 6). No person could maintain a
querela
inofficiosi except brothers and sisters of the same father,and
brothers and sisters could only maintain their claim against
scripti heredes who were
turpes
personae. The complaint also could only be maintained in cases
where the complaining parties had no other right or means of redress.
Originally the querela could be brought if less than one-fourth of the share
of the claimant
ab intestato was left to him,
whether as heir or legatee was immaterial, by the law of Justinian. If any
portion, however small, was left by the will to the complaining party, he
could not maintain a
querela inofficiosi, and
he was only entitled to so much as would make up his proper share (
portio legitima). If the judex declared the
testamentum to be inofficiosum, it was rescinded, and the querelant
succeeded
ab intestato; but if there were
several heredes, the testament would only be rescinded as to him or them
against whose institution the judex had pronounced. The querela was tried by
the centumviral court, as long as the court existed. [
CENTUMVIRI] (
Plin. Ep. 5.1; Inst. 2.18;
Dig. 5,
de Inofficioso Testamento.）
Justinian made various changes in the rules restricting testamentary freedom
in favour of near relations. 1st. He provided that if anything was left to
such relation he was not to be entitled to the querela, but only to the
actio ad supplendam legitimam. 2nd. By 18 Nov. he increased the amount of
the
portio legitima. 3rd. By 115 Nov. he
amalgamated the law respecting formal exheredation of sui heredes with that
respecting inofficiositas. He obliged ascendants and descendants
respectively to institute one another heredes, if there was a right of
succession in the event of intestacy, and only allowed exheredation on
certain grounds expressed in the statute. A testator had to declare a
statutable ground of exheredation in his will. If a relation entitled under
this law was instituted, but not so much as his portio legitima was left to
him, he had the actio ad supplendam legitimam. If not instituted, he had the
querela inofficiosi testamenti, unless he had been exheredated for due
cause. The effect of the querela was not to set aside the will altogether,
but to let in the querelant to the extent of his intestate share.
The
querela inofficiosi is explained by Savigny
with his usual perspicuity (
System, &c. vol. ii. p.
127). When a testator passed over in his will any of his nearest kinsfolks,
who in the case of intestacy would be his heredes, this gave rise to the
opinion that the person thus passed over had merited this mark of the
testator's disapprobation. If this opinion was unfounded, the testator had
done an unmerited injury to the person, and his remedy was by getting the
will set aside, as made under the influence of passion. If the will was set
aside, the testator was thereby declared to have died intestate, and the
complainant obtained the hereditas which
[p. 2.807]was the
immediate object of the querela, or his share of it. But the ultimate object
of the querela was the public re-establishment of the injured honour of the
complainant, who in this action appeared in a hostile position with respect
to the testator who had brought his character into question. Consequently
this action had for its ultimate object vindicta, and the peculiarity of the
action consisted in the difference between this ultimate object of the
action and the immediate object of it (property), which was merely a means
to the ultimate object. [
VINDICTA]
There is no evidence to show when the querela inofficiosi was introduced as a
mode of setting aside a will. The phrase
testamentum
inofficiosum occurs in Cicero, and in Quintilian (
Inst.
Or. 10.2).
Codicilli were an informal will: they may be defined to be a testamentary
disposition of such a kind which does not allow any direct universal
succession, and, consequently, neither the direct appointment nor
exheredation of a heres, even though the codicilli are confirmed by a
testament; but he who was appointed heres by a testament might be requested
by codicilli to give the hereditas to another altogether or in part, even
though the codicilli were not confirmed by a testament. A legacy could not
be given by codicilli, unless the codicilli were confirmed by a will; and
this must be the case to which Pliny refers (
Ep. 2.16).
Acilianus had made Pliny “heres ex parte,” but he had also made
codicilli in his own handwriting, which, as Pliny alleges, were void
(
pro non scriptis habendi) because they
were not confirmed by the will. Now, as already observed, it appears from
Gaius (2.273) that a person who was appointed heres by a will might be
required by codicilli to give the whole hereditas or a part to another, even
though the codicilli were not confirmed by a will. But Pliny is speaking of
codicilli which were void for want of a testamentary confirmation; and this,
as we learn from Gaius, is the case of a legacy given by codicilli which
have not been confirmed by a will. This confirmation might be either
prospective or retrospective ( “si in testamento caverit testator, ut
quidquid in codicillis scripserit, id ratum sit,” Gaius, 2.270;
“quos novissimos fecero,”
Dig. 29,
7,
8). This passage of Pliny as to the confirmation of
codicilli by a testament has sometimes been misunderstood. It is stated
(
Dig. 29,
7,
8), “Conficiuntur codicilli quatuor modis: aut
enim in futurum confirmantur aut in praeteritum, aut per fideicommissum
testamento facto aut sine testamento.” These four modes are
referred to in Gaius: the first two are contained in the words above quoted,
“Si in testamento,” &c.: the third is the case of
the heres institutus being required to give the hereditas to another person
by codicilli non confirmati; and the fourth is the case of a fideicommissum
given by codicilli of a person who made no other testamentary disposition.
It was a rule of law that codicilli, when duly made, were to be considered
(except in a few cases) as incorporated in the will at the time when the
will was made, a principle which led to various legal conclusions, which the
Roman jurists deduced with their usual precision (
Dig.
27,
7,
2).
Originally there was probably no particular form required for codicilli; but
there must have been evidence of their containing the testator's intention.
Subsequently witnesses were required, and five witnesses were sufficient for
codicilli made in writing, if the witnesses subscribed their names to the
codicilli (Cod. 6, 36). But a man could, without writing and in the presence
of five witnesses, impose a fideicommissum on his heres. A testament which
was defective as such, might be effectual as codicilli. The power to make
codicilli was the same as the power to make a testament. (
Dig. 29,
7,
de Jure
Codicillorum; Inst. 2.25.)
The articles on HERES, BONORUM POSSESSIO, LEGATUM,
FIDEICOMMISSUM, &c., should be read with this article.
(Gaius, 2.101-108; Ulp.
Fray. xx.; Inst. 2.10, &c.;
Dig. 28,
1; Cod. 6, 23;
Vangerow,
Pandekten, &c., 2.427, &c.; Holder,
Erbrecht; Köppen,
System
Erbrechts; Schirmer,
Handbuch des röm.
Erbrecht; Dernburg,
Beitr. zur Gesch. der röm.
Test.; Vering,
Römisches Erbrecht; Gans,
Das Erbrecht.）
[
G.L] [
E.A.W]
