6 Those persons only can be witnesses who are legally capable of witnessing a testament. Women, persons below the age of p.u.b.erty, slaves, lunatics, persons dumb or deaf, and those who have been interdicted from the management of their property, or whom the law declares worthless and unfitted to perform this office, cannot witness a will.

7 In cases where one of the witnesses to a will was thought free at the time of its execution, but was afterwards discovered to be a slave, the Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the Emperors Severus and Antoninus declared that of their goodness they would uphold such a will as validly made; for, at the time when it was sealed, this witness was admitted by all to be free, and, as such, had had his civil position called in question by no man.

8 A father and a son in his power, or two brothers who are both in the power of one father, can lawfully witness the same testament, for there can be no harm in several persons of the same family witnessing together the act of a man who is to them a stranger.

9 No one, however, ought to be among the witnesses who is in the testator's power, and if a son in power makes a will of military peculium after his discharge, neither his father nor any one in his father's power is qualified to be a witness; for it is not allowed to support a will by the evidence of persons in the same family with the testator.

10 No will, again, can be witnessed by the person inst.i.tuted heir, or by any one in his power, or by a father in whose power he is, or by a brother under the power of the same father: for the execution of a will is considered at the present day to be purely and entirely a transaction between the testator and the heir. Through mistaken ideas on this matter the whole law of testamentary evidence fell into confusion: for the ancients, though they rejected the evidence of the purchaser of the family and of persons connected with him by the tie of power, allowed a will to be witnessed by the heir and persons similarly connected with him, though it must be admitted that they accompanied this privilege with urgent cautions against its abuse. We have, however, amended this rule, and enacted in the form of law what the ancients expressed in the form only of advice, by a.s.similating the heir to the old purchaser of the family, and have rightly forbidden the heir, who now represents that character, and all other persons connected with him by the tie referred to, to bear witness in a matter in which, in a sense, they would be witnesses in their own behalf. Accordingly, we have not allowed earlier const.i.tutions on this subject to be inserted in our Code.

11 Legatees, and persons who take a benefit under a will by way of trust, and those connected with them, we have not forbidden to be witnesses, because they are not universal successors of the deceased: indeed, by one of our const.i.tutions we have specially granted this privilege to them, and, a fortiori, to persons in their power, or in whose power they are.

12 It is immaterial whether the will be written on a tablet, paper, parchment, or any other substance: and a man may execute any number of duplicates of his will, for this is sometimes necessary, though in each of them the usual formalities must be observed. For instance, a person setting out upon a voyage may wish to take a statement of his last wishes along with him, and also to leave one at home; and numberless other circ.u.mstances which happen to a man, and over which he has no control, will make this desirable.

14 So far of written wills. When, however, one wishes to make a will binding by the civil law, but not in writing, he may summon seven witnesses, and in their presence orally declare his wishes; this, it should be observed, being a form of will which has been declared by const.i.tutions to be perfectly valid by civil law.

t.i.tLE XI. OF SOLDIERS' WILLS

Soldiers, in consideration of their extreme ignorance of law, have been exempted by imperial const.i.tutions from the strict rules for the execution of a testament which have been described. Neither the legal number of witnesses, nor the observance of the other rules which have been stated, is necessary to give force to their wills, provided, that is to say, that they are made by them while on actual service; this last qualification being a new though wise one introduced by our const.i.tution. Thus, in whatever mode a soldier's last wishes are declared, whether in writing or orally, this is a binding will, by force of his mere intention. At times, however, when they are not employed on actual service, but are living at home or elsewhere, they are not allowed to claim this privilege: they may make a will, even though they be sons in power, in virtue of their service, but they must observe the ordinary rules, and are bound by the forms which we described above as requisite in the execution of wills of civilians.

1 Respecting the testaments of soldiers the Emperor Trajan sent a rescript to Statilius Severus in the following terms: 'The privilege allowed to soldiers of having their wills upheld, in whatever manner they are made, must be understood to be limited by the necessity of first proving that a will has been made at all; for a will can be made without writing even by civilians. Accordingly, with reference to the inheritance which is the subject of the action before you, if it can be shown that the soldier who left it, did in the presence of witnesses, collected expressly for this purpose, declare orally who he wished to be his heir, and on what slaves he wished to confer liberty, it may well be maintained that in this way he made an unwritten testament, and his wishes therein declared ought to be carried out. But if, as is so common in ordinary conversation, he said to some one, I make you my heir, or, I leave you all my property, such expressions cannot be held to amount to a testament, and the interest of the very soldiers, who are privileged in the way described, is the princ.i.p.al ground for rejecting such a precedent. For if it were admitted, it would be easy, after a soldier's death, to procure witnesses to affirm that they had heard him say he left his property to any one they pleased to name, and in this way it would be impossible to discover the true intentions of the deceased.'

2 A soldier too may make a will though dumb and deaf.

3 This privilege, however, which we have said soldiers enjoy, is allowed them by imperial const.i.tutions only while they are engaged on actual service, and in camp life. Consequently, if veterans wish to make a will after their discharge, or if soldiers actually serving wish to do this away from camp, they must observe the forms prescribed for all citizens by the general law; and a testament executed in camp without formalities, that is to say, not according to the form prescribed by law, will remain valid only for one year after the testator's discharge.

Supposing then that the testator died within a year, but that a condition, subject to which the heir was inst.i.tuted, was not fulfilled within the year, would it be feigned that the testator was a soldier at the date of his decease, and the testament consequently upheld? and this question we answer in the affirmative.

4 If a man, before going on actual service, makes an invalid will, and then during a campaign opens it, and adds some new disposition, or cancels one already made, or in some other way makes it clear that he wishes it to be his testament, it must be p.r.o.nounced valid, as being, in fact, a new will made by the man as a soldier.

5 Finally, if a soldier is adrogated, or, being a son in power, is emanc.i.p.ated, his previously executed will remains good by the fiction of a new expression of his wishes as a soldier, and is not deemed to be avoided by his loss of status.

6 It is, however, to be observed that earlier statutes and imperial const.i.tutions allowed to children in power in certain cases a civil peculium after the a.n.a.logy of the military peculium, which for that reason was called quasimilitary, and of which some of them were permitted to dispose by will even while under power. By an extension of this principle our const.i.tution has allowed all persons who have a peculium of this special kind to dispose of it by will, though subject to the ordinary forms of law. By a perusal of this const.i.tution the whole law relating to this privilege may be ascertained.

t.i.tLE XII. OF PERSONS INCAPABLE OF MAKING WILLS

Certain persons are incapable of making a lawful will. For instance, those in the power of others are so absolutely incapable that they cannot make a testament even with the permission of their parents, with the exception of those whom we have enumerated, and particularly of children in power who are soldiers, and who are permitted by imperial const.i.tution to dispose by will of all they may acquire while on actual service. This was allowed at first only to soldiers on active service, by the authority of the Emperors Augustus and Nerva, and of the ill.u.s.trious Emperor Trajan; afterwards, it was extended by an enactment of the Emperor Hadrian to veterans, that is, soldiers who had received their discharge. Accordingly, if a son in power makes a will of his military peculium, it will belong to the person whom he inst.i.tutes as heir: but if he dies intestate, leaving no children or brothers surviving him, it will go to the parent in whose power he is, according to the ordinary rule. From this it can be understood that a parent has no power to deprive a son in his power of what he has acquired on service, nor can the parent's creditors sell or otherwise touch it; and when the parent dies it is not shared between the soldier's son and his brothers, but belongs to him alone, although by the civil law the peculium of a person in power is always reckoned as part of the property of the parent, exactly as that of a slave is deemed part of the property of his master, except of course such property of the son as by imperial const.i.tutions, and especially our own, the parent is unable to acquire in absolute ownership. Consequently, if a son in power, not having a military or quasimilitary peculium, makes a will, it is invalid, even though he is released from power before his decease.

1 Again, a person under the age of p.u.b.erty is incapable of making a will, because he has no judgement, and so too is a lunatic, because he has lost his reason; and it is immaterial that the one reaches the age of p.u.b.erty, and the other recovers his faculties, before his decease.

If, however, a lunatic makes a will during a lucid interval, the will is deemed valid, and one is certainly valid which he made before he lost his reason: for subsequent insanity never avoids a duly executed testament or any other disposition validly made.

2 So too a spendthrift, who is interdicted from the management of his own affairs, is incapable of making a valid will, though one made by him before being so interdicted holds good.

3 The deaf, again, and the dumb cannot always make a will, though here we are speaking not of persons merely hard of hearing, but of total deafness, and similarly by a dumb person is meant one totally dumb, and not one who merely speaks with difficulty; for it often happens that even men of culture and learning by some cause or other lose the faculties of speech and hearing. Hence relief has been afforded them by our const.i.tution, which enables them, in certain cases and in certain modes therein specified, to make a will and other lawful dispositions.

If a man, after making his will, becomes deaf or dumb through ill health or any other cause, it remains valid notwithstanding.

4 A blind man cannot make a will, except by observing the forms introduced by a law of our imperial father Justin.

5 A will made by a prisoner while in captivity with the enemy is invalid, even though he subsequently returns. One made, however, while he was in his own state is valid, if he returns, by the law of postliminium; if he dies in captivity it is valid by the lex Cornelia.

t.i.tLE XIII. OF THE DISINHERISON OF CHILDREN

The law, however, is not completely satisfied by the observance of the rules hereinbefore explained. A testator who has a son in his power must take care either to inst.i.tute him heir, or to specially disinherit him, for pa.s.sing him over in silence avoids the will; and this rule is so strict, that even if the son die in the lifetime of the father no heir can take under the will, because of its original nullity. As regards daughters and other descendants of either s.e.x by the male line, the ancients did not observe this rule in all its strictness; for if these persons were neither inst.i.tuted nor disinherited, the will was not avoided, but they were ent.i.tled to come in with the inst.i.tuted heirs, and to take a certain portion of the inheritance. And these persons the ascendant was not obliged to specially disinherit; he could disinherit them collectively by a general clause.

1 Special disinherison may be expressed in these terms--'Be t.i.tius my son disinherited,' or in these, 'Be my son disinherited,' without inserting the name, supposing there is no other son. Children born after the making of the will must also be either inst.i.tuted heirs or disinherited, and in this respect are similarly privileged, that if a son or any other family heir, male or female, born after the making of the will, be pa.s.sed over in silence, the will, though originally valid, is invalidated by the subsequent birth of the child, and so becomes completely void. Consequently, if the woman from whom a child was expected to have an abortive delivery, there is nothing to prevent the inst.i.tuted heirs from taking the inheritance. It was immaterial whether the female family heirs born after the making of the will were disinherited specially or by a general clause, but if the latter mode be adopted, some legacy must be left them in order that they may not seem to have been pa.s.sed over merely through inadvertence: but male family heirs born after the making of the will, sons and other lineal descendants, are held not to be properly disinherited unless they are disinherited specially, thus: 'Be any son that shall be born to me disinherited.'

2 With children born after the making of the will are cla.s.sed children who succeed to the place of a family heir, and who thus, by an event a.n.a.logous to subsequent birth, become family heirs to an ancestor.

For instance, if a testator have a son, and by him a grandson or granddaughter in his power, the son alone, being nearer in degree, has the right of a family heir, although the grandchildren are in the testator's power equally with him. But if the son die in the testator's lifetime, or is in some other way released from his power, the grandson and granddaughter succeed to his place, and thus, by a kind of subsequent birth, acquire the rights of family heirs. To prevent this subsequent avoidance of one's will, grandchildren by a son must be either inst.i.tuted heirs or disinherited, exactly as, to secure the original validity of a testament, a son must be either inst.i.tuted or specially disinherited; for if the son die in the testator's lifetime, the grandson and granddaughter take his place, and avoid the will just as if they were children born after its execution. And this disinherison was first allowed by the lex Iunia Vallaea, which explains the form which is to be used, and which resembles that employed in disinheriting family heirs born after the making of a will.

3 It is not necessary, by the civil law, to either inst.i.tute or disinherit emanc.i.p.ated children, because they are not family heirs. But the praetor requires all, females as well as males, unless inst.i.tuted, to be disinherited, males specially, females collectively; and if they are neither appointed heirs nor disinherited as described, the praetor promises them possession of goods against the will.

4 Adopted children, so long as they are in the power of their adoptive father, are in precisely the same legal position as children born in lawful wedlock; consequently they must be either inst.i.tuted or disinherited according to the rules stated for the disinherison of natural children. When, however, they have been emanc.i.p.ated by their adoptive father, they are no longer regarded as his children either by the civil law or by the praetor's edict. Conversely, in relation to their natural father, so long as they remain in the adoptive family they are strangers, so that he need neither inst.i.tute nor disinherit them: but when emanc.i.p.ated by their adoptive father, they have the same rights in the succession to their natural father as they would have had if it had been he by whom they were emanc.i.p.ated. Such was the law introduced by our predecessors.

5 Deeming, however, that between the s.e.xes, to each of which nature a.s.signs an equal share in perpetuating the race of man, there is in this matter no real ground of distinction, and marking that, by the ancient statute of the Twelve Tables, all were called equally to the succession on the death of their ancestor intestate (which precedent the praetors also seem to have subsequently followed), we have by our const.i.tution introduced a simple system of the same kind, applying uniformly to sons, daughters, and other descendants by the male line, whether born before or after the making of the will. This requires that all children, whether family heirs or emanc.i.p.ated, shall be specially disinherited, and declares that their pretermission shall have the effect of avoiding the will of their parent, and depriving the inst.i.tuted heirs of the inheritance, no less than the pretermission of children who are family heirs or who have been emanc.i.p.ated, whether already born, or born after, though conceived before the making of the will. In respect of adoptive children we have introduced a distinction, which is explained in our const.i.tution on adoptions.

6 If a soldier engaged on actual service makes a testament without specially disinheriting his children, whether born before or after the making of the will, but simply pa.s.sing over them in silence, though he knows that he has children, it is provided by imperial const.i.tutions that his silent pretermission of them shall be equivalent to special disinherison.

7 A mother or maternal grandfather is not bound to inst.i.tute her or his children or grandchildren; they may simply omit them, for silence on the part of a mother, or of a maternal grandfather or other ascendant, has the same effect as actual disinherison by a father. For neither by the civil law, nor by that part of the praetor's edict in which he promises children who are pa.s.sed over possession of goods against the will, is a mother obliged to disinherit her son or daughter if she does not inst.i.tute them heirs, or a maternal grandfather to be equally precise with reference to grandchildren by a daughter: though such children and grandchildren, if omitted, have another remedy, which will shortly be explained.

t.i.tLE XIV. OF THE INSt.i.tUTION OF THE HEIR

A man may inst.i.tute as his heirs either free men or slaves, and either his own slaves or those of another man. If he wished to inst.i.tute his own slave it was formerly necessary, according to the more common opinion, that he should expressly give him his liberty in the will: but now it is lawful, by our const.i.tution, to inst.i.tute one's own slave without this express manumission--a change not due to any spirit of innovation, but to a sense of equity, and one whose principle was approved by Atilicinus, as it is stated by Seius in his books on Masurius Sabinus and on Plautius. Among a testator's own slaves is to be reckoned one of whom he is bare owner, the usufruct being vested in some other person. There is, however, one case in which the inst.i.tution of a slave by his mistress is void, even though freedom be given him in the will, as is provided by a const.i.tution of the Emperors Severus and Antoninus in these terms: 'Reason demands that no slave, accused of criminal intercourse with his mistress, shall be capable of being manumitted, before his sentence is p.r.o.nounced, by the will of the woman who is accused of partic.i.p.ating in his guilt: accordingly if he be inst.i.tuted heir by that mistress, the inst.i.tution is void.' Among 'other persons' slaves' is reckoned one in whom the testator has a usufruct.

1 If a slave is inst.i.tuted heir by his own master, and continues in that condition until his master's decease, he becomes by the will both free, and necessary heir. But if the testator himself manumits him in his lifetime, he may use his own discretion about acceptance; for he is not a necessary heir, because, though he is named heir to the testament, it was not by that testament that he became free. If he has been alienated, he must have the order of his new master to accept, and then his master becomes heir through him, while he personally becomes neither heir nor free, even though his freedom was expressly given him in the testament, because by alienating him his former master is presumed to have renounced the intention of enfranchising him. When another person's slave is inst.i.tuted heir, if he continues in the same condition he must have the order of his master to accept; if alienated by him in the testator's lifetime, or after the testator's death but before acceptance, he must have the order of the alienee to accept; finally, if manumitted in the testator's lifetime, or after the testator's death but before acceptance, he may accept or not at his own discretion.

2 A slave who does not belong to the testator may be inst.i.tuted heir even after his master's decease, because slaves who belong to an inheritance are capable of being inst.i.tuted or made legatees; for an inheritance not yet accepted represents not the future heir but the person deceased. Similarly, the slave of a child conceived but not yet born may be inst.i.tuted heir.

3 If a slave belonging to two or more joint owners, both or all of whom are legally capable of being made heirs or legatees, is inst.i.tuted heir by a stranger, he acquires the inheritance for each and all of the joint owners by whose orders he accepts it in proportion to the respective shares in which they own him.

4 A testator may inst.i.tute either a single heir, or as many as he pleases.

5 An inheritance is usually divided into twelve ounces, and is denoted in the aggregate by the term as, and each fraction of this aggregate, ranging from the ounce up to the as or pound, has its specific name, as follows: s.e.xtans (1/6), quadrans (1/4), triens (1/3), quincunx (5/12), semis (1/2), septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6), deunx (11/12), and as it is not necessary, however, that there should always be twelve ounces, for for the purposes of testamentary distribution an as may consist of as many ounces as the testator pleases; for instance, if a testator inst.i.tutes only a single heir, but declares that he is to be heir ex semisse, or to one half of the inheritance, this half will really be the whole, for no one can die partly testate and partly intestate, except soldiers, in the carrying out of whose wills the intention is the only thing regarded. Conversely, a testator may divide his inheritance into as large a number of ounces as he pleases.

6 If more heirs than one are inst.i.tuted, it is unnecessary for the testator to a.s.sign a specific share in the inheritance to each, unless he intends that they shall not take in equal portions; for it is obvious that if no shares are specified they divide the inheritance equally between them. Supposing, however, that specific shares are a.s.signed to all the inst.i.tuted heirs except one, who is left without any express share at all, this last heir will be ent.i.tled to any fraction of the as which has not been disposed of; and if there are two or more heirs to whom no specific shares have been a.s.signed, they will divide this una.s.signed fraction equally between them. Finally, if the whole as has been a.s.signed in specific shares to some of the heirs, the one or more who have no specific shares take half of the inheritance, while the other half is divided among the rest according to the shares a.s.signed to them; and it is immaterial whether the heir who has no specified share come first or last in the inst.i.tution, or occupies some intermediate place; for such share is presumed to be given to him as is not in some other way disposed of.

7 Let us now see how the law stands if some part remains undisposed of, and yet each heir has his share a.s.signed to him--if, for instance there are three heirs inst.i.tuted, and each is a.s.signed a quarter of the inheritance. It is evident that in this case the part undisposed of will go to them in proportion to the share each has a.s.signed to him by the will, and it will be exactly as if they had each been originally inst.i.tuted to a third. Conversely, if each heir is given so large a fraction that the as will be exceeded, each must suffer a proportionate abatement; thus if four heirs are inst.i.tuted, and to each is a.s.signed a third of the inheritance, it will be the same as if each had been originally inst.i.tuted to a quarter.

8 If more than twelve ounces are distributed among some of the heirs only, one being left without a specific share, he will have what is wanting to complete the second as; and the same will be done if more than twenty-four ounces are distributed, leaving him shareless; but all these ideal sums are afterwards reduced to the single as, whatever be the number of ounces they comprise.