TESTAMEN′TUM is "mentis nostrae justa contestatio in id solemniter facta ut post mortem nostram valeat" (Ulp. Frag. tit. 20; comp. Ulp. Dig. 28 tit. 1 s1, where he has "justa sententia."). In this passage the word Justa means "jure facta," "as required by law." The word Contestatio is apparently used with reference to the origin of the term Testamentum, which is to be referred to "Testari," which signifies "to make a solemn declaration of one's will." Gellius (VII.12)º properly finds fault with Servius Sulpicius for saying that the word is compounded "a mentis contestatione." The person who made a Testamentum was Testator (Sueton. Ner. 17; Dig. 28 tit. 3 s17).
In order to be able to make a valid Roman will, the Testator must have the Testamentifactio (Cic. ad Fam. VII.21), which term expresses the legal capacity to make a valid will; the word has also another signification [Heres, p598B]. 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, but with respect to his Castrense Peculium [Patria Potestas] a filiusfamilias had the privilege of testamentary disposition; Latini Juniani, Dediticii; Peregrini could not dispose of their property according to the form of a Roman will; a person who was doubtful as to his status, as for instance if his father had died abroad and the fact was not ascertained, could not make a testament; an Impubes 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: muti, surdi, furiosi, and prodigi "quibus lege bonis interdictum est" had not the testamentifactio; the reasons why these several classes of persons had not the testamentifactio illustrate the Roman mode of deducing legal conclusions from general principles:— the Mutus had not the testamentifactio, because he could not utter the words of Nuncupatio; the Surdus, because he could not hear the words of the Emtor familiae; the Furiosus, because he had not intellectual capacity to declare his will (testari) about his property; and the Prodigus, because he was under a legal restraint, so that he had no commercium, and consequently could not exercise the formal act of the familiae mancipatio (Ulp. Frag. tit. 20 s13; Curator; Impubes). As to the testamentum which a man had made before he becomes Furiosus, see Dig. 28 tit. 1 s20 § 4.
Women had originally no testamentifactio, and when they did acquire the power, they could only exercise it with the auctoritas of a Tutor. 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. The rules therefore as to a woman's capacity to make a will, could apply only to unmarried women after the death of their father and to widows who were not in the power of a father. This subject requires explanation.
Cicero (Top. 4) observes "if a woman has made a will, and has never undergone a capitis diminutio, it does not appear that the Bonorum Possessio can be granted in pursuance of such will according to the Praetor's Edict; for it if could, the Edict must give the Possessio in respect of the wills of Servi, Exules, and Pueri." Cicero means to say that if a woman made a will without having sustained a capitis diminutio, the will could have no effect at all: and he derives his argument "ab adjunctis," for if such a will could have any effect, then the wills of other persons, who had not the testamentifactio, might be effectual so far as to give the Bonorum Possessio. It is not a logical inference from the language of Cicero that a woman who had sustained a capitis diminutio could make a will; but this is the ordinary meaning of such language and it appears to be his. Consistently with this, Ulpian says (Frag. tit. 20 s15), "women after their twelfth year can make a will with the auctoritas of a Tutor, so long as they are in tutela;" and the comment of Boëthius on the passage of the Topica clearly shows that he understood it in this way. A woman then could make a will with the auctoritas of her Tutor and not without. Now if a woman was in tutela Legitima, it might be correctly said that she could not make a will; for, if she was Ingenua, the tutela belonged of right to the Agnati and Gentiles, and if she was a Liberta, it belonged to the patron. In these cases a woman could indeed make a valid will with the consent of her Tutores, but as her Tutores were her heirs in case of intestacy, such consent would seldom be given, and though a woman under such circumstances might be allowed to make a will, it may be assumed that it was a circumstance altogether unusual, and thus the rule as to a woman in Tutela Legitima, as above stated, might be laid down as generally true. The passage of Cicero therefore does not apply to the Tutela Legitima, but to something else. Since the discovery of the Institutes of Gaius the difficulty has been cleared up, though it had been solved in a satisfactory manner by Savigny before the publication of Gaius (Beytrag zur Geschichte der Geslechtstutel, Zeitschrift, vol. III p328).
A woman could make a "coemptio fiduciae causa," in order to qualify herself to make a will; for "at that time women had not the power of making a will, except certain persons, unless they made a co-emptio and were remancipated and manumitted; but on the recommendation of Hadrian p1114 the senate made the ceremony of coemptio unnecessary for this purpose." (Gaius, 115, a). The coemptio was accompanied with a capitis diminutio, and this is what Cicero alludes to in the passage of the Topica [Matrimonium (Roman)]. A woman who came in manum viri had sustained a capitis diminutio, but it must not be inferred from this that if she became a widow she could make a will. The Capitis diminutio of Cicero means that the will must be made with the auctoritas of a tutor. Now if the husband died, when the wife had been in manu, and he appointed no tutor for her, she was in the legitima tutela of her nearest agnati, who would be her own children and step-children, if she had any. But the tutela legitima in such a case would seem something unnatural, and accordingly the magistratus would give a tutor to the woman; and such a tutor, as he had no interest in the woman's property, could not prevent her from making a will. The husband might by his will give his wife a power to choose a Tutor (tutoris optio), and such a Tutor could not refuse his consent to the woman making a will; for instead of the woman being in the potestas of the tutor, he was in the potestas of the woman, so far as to be bound to assent to her testamentary dispositions (compare Liv. XXXIX.19; Cic. pro Muren. c17; Gaius, I.150).
The case of Silius (Cic. ad Fam. VII.21) may be the case of a woman's making a will, without the auctoritas of a tutor, 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. There may however have been other reasons why the will-maker had not the testamentifactio, than the want of a capitis diminutio (in the sense of Cic. Top. 4), and consequently the opinion of those critics who refer the case mentioned in this letter to the principle of the Capitis diminutio is not a certain truth.
Libertae could not make a testamentum without the auctoritas of their patronus, except so far as this rule was altered by enactments; for they were in the legitima tutela of their patronus. Libertae, who had a certain number of children, could make a will without the auctoritas of their patronus [Patronus].
In order to constitute a valid will, it was necessary that a heres should be instituted, which might be done in such terms as follow:— Titius heres esto, Titium heredem esse jubeo. [Heres (Roman)].
All persons who had the commercium could be heredes; slaves also and others who were not sui juris could be made heredes, but they could not take for themselves [Heres; Servus, p1037]. But there were many classes of persons who could not be heredes: Peregrini, who had not received the commercium; persons who were imperfectly described; Juristical persons or universitates, except by their liberti, a privilege granted by a Senatusconsultum; Gods, or the temples of Gods, except such as were excepted by a Senatusconsultum and Imperial Constitutions, such as Jupiter Tarpeius, Apollo Didymaeus, Mars in Gallia, Minerva Iliensis, Hercules Gaditanus, and others enumerated by Ulpian (Ulp. Frag. tit. 22 s6); a Postumus alienus could not be made a heres, for he was an incerta persona; it is a disputed question whether, according to the old law, women could be made heredes; but the question concerns only those who were sui juris, as to whom there seems no sufficient reason why they could not be made heredes; the capacity of women to take under a will was limited by the Lex Voconia: unmarried persons and persons who had no children were limited as to their capacity to take under a will by the Papia Poppaea Lex [Lex Julia et Papia Poppaea].
The first question as to the validity of a will was the capacity of the testator: the next question was as to the proper observance of the forms required by law, "except in the case of soldiers, who, in consideration of their little acquaintance with such matters, were allowed to make their wills as they pleased or as they could" (Gaius, II.114). This remark of Gaius seems to refer to the Imperial period.
As to the Form of wills, Gaius (II.101) and Ulpian (Frag. tit. XX) are now the best authorities.
Originally there were two modes of making wills; for people made their wills either at Calata Comitia, which were appointed twice a year for the making of wills; or they made wills in procinctu, that is, when they were going to battle; for an army in movement and under arms is Procinctus. 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 Calata Comitia 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 after his death. The old form of making a will per aes et libram was this. The Familiae emtor, that is the person who received the Familia by mancipation, filled the place of heres, and accordingly the testator instructed him what he wished to be given to each after his death. In the time of Gaius the practice was different. One person was instituted heres (heres testamento instituitur), who was charged with the payment of the legacies, or, as it is expressed in the phraseology of the Roman Law, "a quo etiam legata relinquebantur;" and another person was present as familiae emtor from a regard to the old legal from. The mode of proceeding was this. The testator, after having written his will (tabulae testamenti), called together five witnesses, who were Roman citizens and puberes, and a libripens, as in the case of other mancipationes, and mancipated his familia to some person in compliance with legal forms (dicis causa). The words of the Familiae emtor (Gaius, II.104) show clearly the original nature of the transaction: "Familiam pecuniamque tuam endo mandatam tutelam custodelamque meam recipio eaque quo tu jure testamentum facere possis secundum legem publicam hoc aere (aeneaque libra) esto mihi emta." (As to the reading of this passage, see Puchta, Inst. III. § 306, note g.) The Emtor then struck the scales with a piece of money which he gave to the testator as the price of the Familia. Then the testator taking the will in his p1115 hand said: "Haec ita ut in his tabulis cerisque (or cerisve) 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.
As the Familiae emtio was supposed to be a real transaction between the Emtor and Testator, the testimony of their several families was excluded, and consequently a person who was in the power of the Familiae Emtor, 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 emtor, 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 testamentum, 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; for as Ulpian observes, there is no objection to any number of witnesses from the same family. But Gaius observes that this ought not to be considered as law with respect to the heres, and him who is in the power of the heres and him in whose power the heres is.
According to Gaius, wills were originally made only at Calata Comitia, and In Procinctu. The Comitia were held twice a year for the purpose of making wills, and a will not made there was invalid. It is sometimes assumed that these Comitia were held in order that the Gentes might consent to the testamentary disposition, in which it is implied that they might refuse their consent. But there is no direct evidence for this opinion, and it derives no support from a consideration of the mode of disposing of property per aes et libram. The form per aes et libram was a form introduced in cases when the will had not been made at the Calata Comitia nor In Procinctu. It had effect because it was an alienation of property inter vivos without the consent of any parties except the buyer and seller, which alienation must be assumed to have been a legal transaction at the time when this new form of will was introduced. This new form was a sale and the familiae emtor undertook a trust; he resembled the heres fiduciarius of later times. It is probable enough that there were originally no means of compelling him to execute the trust, but opinion would be a sufficient guarantee that the testator's will would be observed, and thus would arise one of those parts of Law which had its source in Mos. Now when the Romans introduced new legal forms, they always assimilated them to old forms, whence we have a probable conclusion that the form of mancipatio was also observed at the Calata Comitia; and if so, the consent of the Gentes was not necessary, unless it was necessary to every alienation of property, which in the absence of evidence must not be assumed, though such may have been the fact. The difference then between the will made at the Calata Comitia and the will per aes et libram, consisted in the greater solemnity and notoriety of the former, and the consequent greater security that the testator's intentions would be observed. Written wills are not spoken of with reference to this time, nor is it probable that wills were written: it does not appear that a written will was ever required by law. The testator's disposition of his property would be short and simple in those early times, and easily remembered; but there would be greater security for an unwritten will made at the Comitia than for an unwritten will made per aes et libram; whence in course of time Tabulae became a usual part of the ceremony of a will.
As we are ignorant of the true nature of private property among the Romans, viewed with respect to its historical origin, we cannot determine with certainty such questions as those respecting testamentary disposition, but it is of some importance to exclude conjectures which are devoid of all evidence. Rein (Das Röm. Privatrecht, p373, note) has referred to the modern writers who have discussed this subject: he has adopted the opinion of Niebuhr, according to which "as the property of an extinct house escheated to the cury, that of an extinct cury to the publicum of 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 curies." (Hist. of Rome, vol. II p338.) 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 curies 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 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.
The Testamentum in procinctu is, for anything we know to the contrary, as old as the testament at the Calata Comitia. In this case the forms of the Calata Comitia were of necessity dispensed with, or the soldier would often have died intestate. This 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. He had therefore full power of disposition In Procinctu, a circumstance which leads to the probable conclusion that the will made at the Calata Comitia differed only from the other will in its forms and not in its substance. Some writers assert that the Testamentum in Procinctu could only be made after the auspices were taken, which gave the testament the religious sanction, and 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. I.39; Vell. Pat. II.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 tit. 1 De Testamento Militis). Cicero however speaks of the will In procinctu (de Or. I.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 p1116 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 Mancipatio owed its origin to positive enactments: it was a form of alienation accompanied with certain public ceremonies, the presumed object of which was to secure evidence of the transfer. The form of Mancipatio as applied to a will was exactly the same form as Mancipatio applied to any other purpose: it was an alienation of the property, and according to strict principles it must have been irrevocable. It is sometimes assumed that the five witnesses to the Testament (cives Romani puberes) were representatives of the five Classes of Servius Tullius. It this is true (which is a mere assumption) the classes were represented as witnesses only, not as persons who gave their consent to the act. Engelbach states: "Mancipation was originally a formal sale in which the publicness of the transaction constituted the essential characteristic. When the seller had transferred to the buyer the ownership of a thing before the five representatives of the five classes of the Roman People, this was as valid as any other Lex which was brought before the assembly of the People and passed into a Lex." (Ueber die Usucapion zur Zeit der Zwölf Tafeln, p80). The whole meaning of this is not clear, but so far as this it is clear and true: the Testamentum per aes et libram differed in no respects as to the capacity of the alienor, from any other Mancipation. Now we must either suppose that the assumed consent of the populus to the Testamentary disposition at the Calata Comitia, was expressed by a special enactment which should transfer the property according to the Testator's wish, or that the consent only must have been given to the transfer, and the transfer must have been made in the usual way: the latter is the only conceivable case of the two. In assuming this original necessity of consent on the part of the Populus to the testamentary disposition, we assume that Roman property was originally inalienable at the will of the owner. This may be true, but it is not yet shown to be so.
The Twelve Tables recognize a man's power to dispose of his property by will as he pleased: "Uti legassit super pecunia tutelave suae rei ita jus esto." (Ulp. Frag. tit.XI. 14). It is generally admitted, and the extant passages are consistent with the opinion, that the new 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; and the Twelve Tables recognize the testator's power of disposition. If then the form of testament at Comitia Calata subsisted after the Twelve Tables, we have, according to the views of some writers, a form of testamentum to which the consent of the testator was sufficient and another in which it was not. There still remains to those who support this opinion, the power of saying 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 be witnessed by the five representatives. But it is easy to suggest possibilities; less easy to weigh evidence accurately and to deduce its legitimate consequences.
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, and the number of witnesses was probably required in order to secure evidence of the testator's intentions. Thus it is said (Dig. 28 tit. 1 s21) 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 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 tit. 23 s21). By the old law a legacy could not be given 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 of 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 recognized, 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 (annulus) 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 tit. 1 s30). 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. V. tit. 25 s6, where impositae seems to be the true reading, with Suet. Ner. 17). A man might make several copies of his will, which was often done (ut vulgo fieri solet, Dig. 31 tit. 1 s47; a case put to Proculus) for the sake of caution. Both Augustus and Tiberius made two copies of their wills (Sueton. 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, IV.6). This practice described by Paulus may have been of p1117 considerable antiquity. The will of Augustus which had been deposited with the Vestal Virgins was brought into the Senate after his death (Tacit. Ann. I.8): none of the witnesses were admitted except those of Senatorian rank; the rest of the witnesses acknowledged their signatures outside of the Curia (Sueton. 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. 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 p249, &c.; and it is explained by Rudorff (Das Testament des Dasumius, Zeitschrift, &c. vol. XII p301).
The penalties against fraud in the case of wills and other instruments were fixed by the Lex Cornelia [Falsum].
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, II.147). The terms of the Edict are given by Cicero (in Verr. I.1, 45). The Edict only gave the Bonorum Possessio which is the sense of hereditas in the passage of Cicero referred to, as well as in Gaius (II.119). This so‑called Praetorian Testament existed in the Republican period, and for a long time after. 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, Beytrag zur Geschichte der Röm. Testam., Zeitschrift, vol. I p78).
The Praetorian Testament prepared the way for the abolition of Mancipatio, the essential character of a will made according to the Jus 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. 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].
The cases in which a will was not valid, because the heredes sui were not expressly exheredated, are stated in Heres (Roman).
A testament which was invalid from the first was Injustum and never could become valid: it was Non jure factum, when the proper forms had not been observed; it was Nullius Momenti, as in the case of a filiusfamilias who is "praeteritus." A Testamentum Justum might become either Ruptum or Irritum in consequence of subsequent events (Dig. 28 tit. 3 s1).
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 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 diminutio after the date of the will; or if it failed of effect because there was no heres. Thus a prior will which was invalidated by a subsequent will was Ruptum, and if there was no heres under the subsequent will, such will was Irritum.
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 Ruptum or 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. 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 recognized in the time of Cicero (Top. 11). A will also became Ruptum by adgnatio, 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 adgnatio 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].
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 p1118 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. The distinction was a fine one, and worthy of the subtlety of the Jurists, to whom it may be presumed to owe its origin. By the legislation of Justinian no person could maintain a Querela inofficiosi beyond the degree of brothers and sisters; 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. 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 intitled to so much as would make up his proper share. If the judex declared the testamentum to be Inofficiosum, it was rescinded; 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 portion of an hereditas which might be claimed by the Querela inofficiosi was one-fourth, which was divided among the claimants pro rata (Plin. Ep. V.1; Inst. 2 18; Dig. 5 tit. 2, De Inofficioso Testamento).
The Querela Inofficiosi is explained by Savigny with his usual perspicuity (System, &c. vol. II p127). 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 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 in 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. X.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 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. II.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 (II.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, II.270; quos novissimos fecero, Dig. 29 tit. 7 s8). This passage of Pliny as to the confirmation of codicilli by a testament, has sometimes been misunderstood. It is stated, (Dig. 29 tit. 7 s8), "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 tit. 7 s2).
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 tit. 7 De Jure Codicillorum; Inst. 2 25).
The subject of Roman Testaments can only be satisfactorily expounded in a large treatise, and it would require to be treated historically. The preceding sketch may be useful, and generally true, and it affects to be nothing more. (Gaius, II.101‑108; Ulp. Frag. XX; Inst. 2 10, &c.; Dig. 28 tit. 1; Cod.6 23; Vangerow, Pandekten, &c. II. § 427, &c.).
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