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BOOK citizen to obtain the sanction of the legislature to constitute a stranger successor to his estate. This was done in the Comitia Calata, before the whole legislative body, the Pontifices being pre

1. In comitiis calatis.





The presiding magistrate put the question in this form: Velitis jubeatis quirites uti L. Valerius L. Titio tam jure legeque filius sibi sit quam si ex eo patre matreque familias ejus natus esset utique ei vita necisque in eum potestas sit uti patri endo filio Hæc ita uti dixi ita vos Quirites rogo'. As it was a matter of no importance to any one, but the proposed successor, how the estate of Lucius Titius was disposed of, the vote passed as a matter of course. The Comitia for making wills were held twice a year2. Coeval with this form of testament 2. In Pro- was that made by soldiers in Procinctu stantes, in marching order, preparing for battle; they named their heirs in the hearing of three or four witnesses, and these wills were valid as long as the expedition lasted. Gaius informs us that another mode of Testamen- making a will existed, called per æs et libram, and tum pwhich was contemporary with those made in comibefore 12 tiis and in procinctu. Since the former could only be made twice a year persons in fear of imminent death mancipated their estates to some friend per as et libram requesting him, who was called familiæ emptor, to dispose of it according to their directions after their death. This person was heres, and administered the estate according to the directions received from the deceased; but, this private arrangement could not have been recognized as a will by the law before the time of the Twelve Tables. The free right of private testamentary disposition dates from the year U.c. 304. The Twelve Enactment Tables declared as follows:-Paterfamilias uti legassit super familia pecunia tutelave suæ rei ita jus esto. The execution of a will is a most essential



of 12


2 Gai. II. IOI.

3 Id.

4 Id. 102.

1 Hein. Ant. II. 10. 3:


part of it, but the above laconic law was altogether CHAP. silent on that point, and therefore it devolved upon the Jurisconsulti to devise the ceremonial formalities which the testator should be bound to observe if he wished his will to be valid. They adapted the existing mode of transfer per as et libram, of which Gaius speaks, to the first legal private will of the Romans, which was therefore called Testamentum per æs et libram.

tum per æs


There were present at the ceremony the Fami- Testamenliæ emptor, the imaginary purchaser of the here- et libram, ditas, the Libripens, the Antestatus, and five wit- after 12 nesses, Roman citizens of full age, in whose presence How made. the sale took place. The sale having been duly made per æs et libram, the testator then made his nuncupatio testamenti in the presence of the witnesses in this form: holding up the waxed tablets in his hand upon which he had written his will, he said as follows: Hæc uti in his tabulis cærisve scripta sunt, ita do, ita lego, ita testor, itaque vos Quirites testimonium præbitote1. The antestatus then stepped forward and touched the ears of the witnesses; but neither their seals nor signatures were required. It was therefore like the ceremony of mancipation in which the hereditas was mancipated to the familiæ emptor, who was an imaginary purchaser like the Pater fiduciarius.

We have observed that before the Twelve Familiæ

Tables the familiæ emptor performed the part of Emptor. heres, and administered the testamentary bequests of the Paterfamilias, but after the Twelve Tables he became a mere man of straw as necessary for the formal ceremony of the mancipatio per as et libram; but the will then contained the name of him who was appointed by the testator as heres, and who administered the estate of the deceased.

In process of time the Prætor introduced a Testamenchange. The formal mancipation was discontinued, tim Praand the testator nuncupabat testamentum in the

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

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.

tum mixtum.

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 wit-
nesses 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 holo-
graph; and as he must begin thus, Ego Lucius
Titius hoc meum testamentum feci, &c., it was im-
material whether, his signature was at the com-
mencement or the end'. If the testator could not
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


1 Gai. I. 119.

3 Hein. Ant. II. 10. 14.

2 Frag. XX. 2.

4 D. XXVIII. I. 21. 3.

6 I. II. 10. 3.

5 I. II. TO. 3.

7 C. VI. 23. 28. 1.


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 externa.


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 Nuncupawriting, 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 testaments, and would remain a nuncupative will, though afterwards reduced to writ ing for the purpose of preserving the testator's



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.

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

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BOOK will were attested by seven witnesses in the presence of the testator!




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

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



make wills.

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 followunable to ing: 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.


Heres est successor in universum jus quod de

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