BOOK presence of seven witnesses; two being added in II. the place of the libripens and the familia emptor.

tum mixtum.

These were simply required to affix their seals. This form of will seems only to have given the bonorum possessio to the heredes scripti provided there were no heirs at law to claim the property'. It appears from a passage in Ulpian that the ceremony of executing a will per æs et libram existed in his time, and it was not until the time of Theodosius II. that the Roman will assumed its Testamen last form-the testamentum solenne privatum, called also testamentum mixtum, because made up of the Civil law, the Prætorian Edicts, and the Constitutions of the emperors3. In the execution of this will the following requisites must be strictly observed: 1. It must be executed uno contextu1, i. e. it must be one continuous act between the testator Mode of and the witnesses; and no irrelevant matter must be allowed to intervene. 2. Seven witnesses5 must be present, specialiter rogati, specially summoned, whereby the transaction would be more likely to be remembered by them; a custom derived from the time when they came with the Antestatus in the ancient ceremony of mancipation. 3. The witnesses must all sign and seal the will. 4. The testator must sign his will, unless he wrote the whole himself, in which case it was called a holograph; and as he must begin thus, Ego Lucius Titius hoc meum testamentum feci, &c., it was immaterial whether, his signature was at the commencement or the end". If the testator could not

execution.

Appoint

write he must specially depute a person to sign for him. 5. An heir must be duly named in the will, or it was void.

The heir was to represent the person of the dement of an ceased and was the necessary conduit pipe between

heir.

1 Gai. I. 119.

3 Hein. Ant. II. IO. 14.

2 Frag. XX. 2.

4 D. XXVIII. I. 21. 3.

6 I. II. 10. 3.

5 I. II. IO. 3.

7 C. VI. 23. 28. 1.

VI.

him and the legatees. If he died before the testator, CHAP. or were unable, or unwilling, to enter on his duties, the estate fell to the heirs-at-law, the legacies were all void, and the deceased died intestate1, of which more hereafter. The appointment of the heir was called the solennitas interna, the other observances necessary to the due execution of the will were denominated the solennitates externæ.

witnesses.

As to the competency of witnesses the following Incompe persons were disqualified from attesting a will. tency of Impuberes, furiosi, prodigi, slaves, deaf and dumb persons, and women. The patria potestas prevented a son from witnessing his father's will, and vice versa on account of the unitas persona. The witnesses must be satisfied that the document which they attest is the will of the testator, and they must sign in the presence of each other, and in conspectu testatoris. Neither the heir, nor any of his family, could be witnesses; but legatees and fide-committees might. The omission of any solemnity in a written unprivileged will made the whole invalid.

tive will.

A nuncupative will was that made without Nuncupa writing, where the testator being unexpectedly visited with the imminent peril of death declares his will in the presence of seven witnesses; this was a valid testament, and would remain a nuncupative will, though afterwards reduced to writing for the purpose of preserving the testator's

intentions.

Testa

Privileged testaments were those which were Privileged valid without the formalities required in such as ments. were solemn. Among these the military testament was the chief1.

disease.

Secondly, Testamentum tempore pestis factum; Contagious where the testator was dying from some contagious disease, the presence of the witnesses at one and the same time was dispensed with, provided the

BOOK will were attested by seven witnesses in the presence of the testator1.

II.

Parents

dren.

Thirdly, Inter parentes et liberos. In the will and chil of a parent where the property was divided among the children only, if the testator wrote the will, or signed it, if written by another hand, in which the year, month, and day of the execution are set forth, and the portions of the children are clearly expressed no witnesses were required. If a legacy were left to a stranger in such a will it would be void. In a nuncupative will between parents and children two witnesses were sufficient.

Wills of
Rustics.

Wills re

Fourthly, Inter rusticos. In this case five witnesses were sufficient if seven could not be found, and one witness might sign for those who could not write3, on account of the illiteracy of the peasants.

Fifthly, wills publicly registered, actis insinuata, gistered. required no witnesses*.

In pios

usus.

Persons unable to make wills.

Necessity

pointment

Sixthly, In pios usus, where property was left for religious purposes the pontifex could dispense with all formalities.

Persons unable to make wills were the following: They who were under the age of puberty, or had lost the rights of citizenship. Prisoners of war. A filiusfamilias, unless he were a soldier, and he could then bequeath his peculium castrense and quasi castrense. Madmen and prodigals, deaf and dumb persons". Women during the Republic; but in the empire they were allowed to make their wills if they were sui juris with the advice of their Guardians".

A Roman will, if it did not contain the apfor the appointment of an heir, or if a duly appointed heir was unable, or refused to act, was utterly void. This was the solennitas interna, the omission of which nothing could mend.

of the Heres.

Definition.

Heres est successor in universum jus quod de

VI.

functus habuit'. And here the distinction must be CHAP. observed between the heres institutus, and the heres legitimus. The former was he who was appointed in the will, and without whom the will was necessarily void. He represented the deceased, and was the connecting link between him and the legatees, and creditors of the estate; and was in all respects the same as the executor of the English law.

The heres legitimus was he to whom the pro- Heres leperty of the deceased came by operation of law gitimus. when he died intestate.

There were three kinds of heirs in the Roman law: 1. Necessarii. 2. Sui et necessarii. 3. Extranei.

Necessary heirs were the testator's slaves. Heres neIf he instituted his slave as heir, and he remained cessarius. his slave at the time of the testator's death, he became his heres necessarius, and was bound to enter upon the duties of heres; nor is it to be supposed he would require any compulsion, since the appointment, if he were the sole property of his master, involved his freedom. Insolvent testators often appointed a slave as heir, because at their death the property vested in the heir, and was sold in his name, and so they avoided the ignominia which they would have otherwise have incurred. The testator might appoint a servus alienus, i. e. one Servus in whom he had only the usufruct, while the nuda proprietas was in another. In such case it became a question with the owner of the slave whether he would allow him to act as heres; for as any benefit accruing therefrom belonged to the master, so if perchance it were a damnosa hereditas he would have to bear the loss. Here the slave did not necessarily acquire his liberty, but he was considered rather as the instrument whereby his master acted3.

alienus.

If a servus communis were appointed heir, i. e. Servus com

munis.

II.

BOOK where he was the joint property of several, whatever benefit arose was divided equally among the several owners in proportion to their shares; but if the testator at the same time declared him heres et liber the slave then gained his liberty, and the co-proprietors were obliged to take the price of their respective shares to be fixed by the Prætor1. Servus he- The servus hereditarius was a slave belonging to an estate the owner of which had died intestate, and the heir-at-law had not yet made his appearance. If any one named such a slave heres in his will the slave was considered as having sufficient legal capacity to act derived from his deceased master, and so what he acquired was an addition to the hereditas.

reditarius.

Heredes

cessarii.

2. The heredes sui et necessarii were all the sui et ne children of the testator of whatever sex or degree, born or posthumous. The children of the deceased were called sui heredes because the Roman law considered a man's children in somewhat the same position as those of the English tenant in tail where the entail was not barred: quia domestici heredes sunt, et vivo quoque parente quodammodo domini existimantur. They were also called necessarii because omnimodo sive velint, sive nolint tam ab intestato quam ex testamento heredes fiunt3.

But when it is said that all who were in the power of the deceased at the time of his death were sui heredes, it must be observed that the distribution of the estate and effects did not go beyond those who stood first in degree: e.g. the grandson took nothing from his grandfather's property, unless his father were dead at the time of the grandfather's decease1. The wife, if in manu, shåred as an unmarried daughter, but all emancipated children, and daughters who had passed out of the family by marriage ceased to be sui heredes.