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1114

TEST AMENTUM.

drian the senate made the ceremony of coemptio unnecessary for this purpose." (Gaius, 115, a.) The coemptio was accompanied with a capitis diminutio, arid this is what Cicero alludes to in the passage of the Topica. [matrimonium (roman),] A woman who came in manum viri had sustained a eapitis 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 step­children, 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 the 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. c. 17 ; Gaius, i. 150.)

The case of Silius (Cic. ad Fain. vii. 21) may be a 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.

The following references may be consulted as to this matter: Cic.joro G'aecin. 6. 25, pro Place. 35, pro Muren. 12, ad Att. vii. 8 ; Liv. xxxix. 19 ; Gaius, i. 150, &c.

Libertae could not make a testament 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.]

The Vestal Virgins had no tutor, and yet they could make a Testament. The Twelve Tables re­leased them from all tutela " in honorem sacer-dotii." (Cic. de Rep. iii. 10 ; Gaius, i. 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 follow : — Titius heres esto, Titium heredem esse jubeo. [heres (Ro-man.)]

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, p. 1037.] 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,

TESTAMENT UM.

except such as were excepted by a Senatuscon-sultum and Imperial Constitutions, such as Jupiter Tarpeius, Apollo Didymaeus, Mars in Gallia, Minerva Iliensis, Hercules Gaditanus, and others enumerated by Ulpian {Frag. tit. 22. s. -6) : 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 Avas 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 pro-tinctu, 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 eifected 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 (niancipio dabaf) 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\^}\Q 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 form. 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 hiu

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