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TESTAMENTUM.

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 Senatorial! 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 (offerebaf) his written testament to the witnesses, and asked them to bear testimony that the will had so been shown to them (oblatarum iabularumperMbere testimonium} " which are almost the words of Gains. 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. Valentinianlll. enacted that if aTestamentum was holographum, witnesses were not necessary.

A fragment of a Roman will, belonging to the time of Trajan, was published by Pugge in the Hlieinisclies Museum, vol. i. p. 249, &c. ; and it is explained by Rudorff (Das Testament des Da-sumius, Zeitschrift) &c. vol. xii. p. 301).

The penalties against fraud in the case of wills and other instruments were fixed by the Lex Cornelia. [faisum.]

. 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. (Gains, ii, 147.) The terms of the Edict are given by Cicero (in Verr. i. 1, 45.) The Edict only gave the Bo-norum Possessio which is the sense of hereditas in the passage of Cicero referred to, as well as in Gains (ii. 11 9). 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 Man-eipatio, and the Praetorian with seven seals and seven witnesses, and without Mancipatio. (Savigny, Beytrag zur Gescliichto der Horn. Testam., Zeitschrift^ vol. i. p. 78.)

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 scnptis) before seven witnesses, and this was a good will. If it was a written will, the testator acknowledged it before tho witnesses as his last will, and put his name to it, and the witnesses then subscribed their names and affixed

TESTAMENTUM. llir

their seals. The testator might write his will or have it written by another person, but such othe? 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 herbs (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. s. 1.)

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 post-lirninii 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 secundmn tabulas migh t 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 con-ventio, or by succession to the place of a suus heres, as in the instance of a grandson becoming a suus heres inconsequence 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 exheredatioa

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