previous next


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]

hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: