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1118

TESTAMENTUM.

or praeterition, the persons aggrieved might have an Inofficiosi querela. The ground of the com­plaint was the allegation that the testator was "rion sanae mentis," so as to have capacity to make a will. It was not alleged that he was Furiosus or Demens, for these were technical words which implied complete legal incapacity. The dis­tinction was a fine one, and worthy of the subtlety of the Jurists, to whom it may be presumed to owe its origin. By the legislation of Justinian no person could maintain a Querela inofficiosi beyond the degree of brothers and sisters ; and brothers and sisters could only maintain their claim against *' scripti heredes " who were " turpes personae." The complaint also could only be maintained in cases where the complaining parties had no other right or means of redress. If any portion, how­ever small, was left by the will to the complaining-party, he could not maintain a Querela inofficiosi, and he was only intitled to so much as would make up his proper share. If the judex declared the testamentum to be Inofficiosum, it was rescinded ; but if there were several heredes, the testament would only be rescinded as to him or them against whose institution the Judex had pronounced. The portion of an hereditas which might be claimed by the Querela inofficiosi was one-fourth, which was divided among the claimants pro rata. (Plin. Ep. v. 1 ; Inst. 2. tit. 18 ; Dig. 5. tit. 2, De Inofficioso Testamento.)

The Querela Inofficiosi is explained by Savigny with his usual perspicuity (System., <&e. vol. ii. p. 127). When a testator passed over in his will any of his nearest kinsfolks, who in the case of intestacy would be his heredes, this gave rise to the opinion that the person thus passed over had merited this mark of the testator's disapprobation. If this opinion was unfounded, the testator had done an unmerited injury to the person, and his remedy was by getting the will set aside, as made under the influence of passion. If the will was set aside, the testator was thereby declared to have died in­testate, and the complainant obtained the hereditas \vhich was the immediate object of the Querela, or his share of it. But the ultimate object of the Querela was the public re-establishment of the in­jured honour of the complainant, who in this action appeared in a hostile position with respect to the Testator who had brought his character in question. Consequently this action had for its ultimate object Vindicta, and the peculiarity of the action consisted in the difference between this ultimate object of the action and the immediate object of it (pro­perty), which was merely a means to the ultimate

Object. [VlNDICTA.]

There is no evidence to show-when the Querela Inofficiosi was introduced as a mode of setting aside a will. The phrase Testamentum Inofficiosum occurs in Cicero, and in Quintilian (Inst. Or, x. 2).

Codicilli were an informal will: they may be denned to be a testamentary disposition of such a kind which does not allow any direct universal succession, and, consequently, neither the direct appointment nor exheredation of a heres, even though the codicilli are confirmed by a testa­ment ; but he who was appointed heres by a testament, might be requested by codicilli to give the hereditas to another altogether or in part, even though the codicilli were not confirmed by a Testa­ment. A legacy could not be given by codicilli,

TESTUDO.

unless the codicilli were confirmed by a will ; artel this must be the case to which Pliny refers (Ep, ii. 16). Acilianus had made Pliny "heres ex parte," but he had also made codicilli in his own handwriting, which as Pliny alleges were void ( pro non scriptis liabendi), because they were not confirmed by the will. Now, as already observed, it appears from Gaius (ii. 273), that a person who was appointed heres by a will, might be required by codicilli to give the whole hereditas or a part to another, even though the codicilli were not con­firmed by a will. But Pliny is speaking of codicilli which were void for want of a testamentary con­firmation ; and this, as we learn from Gaius, is the case of a legacy given by codicilli which have not been confirmed by a will. This confirmation might be either prospective or retrospective (si in testa" mento caverit testator, ut quidquid in codicillis scrip" serit) id ratum sit, Gaius, ii. 270 ; quos novissimos fecero, "Dig. 29. tit. 7. s. 8). This passage of Pliny as to the confirmation of codicilli by a testament,, has sometimes been misunderstood. It is stated, (Dig. 29. tit. 7. s. 8), " Conficiuntur codicilli qua-tuor modis : aut enim in futurum confirmantur aut in praeteritum, aut per fideicommissum testamento facto aut sine testamento." These four modes are referred to in Gaius: the first two are contained in the words above quoted, Si in testamento, &c.: the third is the case of the heres institutus being re­quired to give the hereditas to another person by codieilli non confirmati ; and the fourth is the case of a fideicommissum given by codicilli of a person who made no other testamentary disposition. It was a rule of law that codicilli, when duly made, were to be considered (except in a few cases) as incorporated in the will at the time when the will was made, a principle which led to various legal conclusions, which the Roman jurists deduced with their usual precision. (Dig. 27. tit. 7. s. 2.)

Originally there was probably no particular form required for codicilli; but there must have been evidence of their containing the testator's intention. Subsequently witnesses were required and five wit­nesses were sufficient for codicilli made in writing, if the witnesses subscribed their names to the codi­cilli. (Cod. 6. tit. 36.) But a man could with­out writing and in the presence of five witnesses impose a fideicommissum on his heres. A testa­ment which was defective as such, might be ef­fectual as codicilli. The power to make codicilli was the same as the power to make a testament. (Dig. 29. tit. 7. De Jure CodiGillorum ; Inst. 2. tit. 25.)

The subject of Roman Testaments can only be satisfactorily expounded in a large treatise, and it would require to be treated historically. The pre­ ceding sketch may be useful, and generally true, and it affects to be nothing more. (Gaius, ii. 101 —108 ; Ulp. Frag. xx. \ Inst. 2. tit. 10, &c. ; Dig. 28. tit. 1 ; Cod. 6. tit. 23 ; Vangerow, Pandekten^ &c. ii. § 427, (Sec,) * [G. L.]

TESTIS, a witness. 1. greek. [mar-tyria.] 2. roman. [jusjurandum.]

TESTUDO (xeAwi/??), a tortoise, was the name given to several other objects.

1. To the Lyra,because it was sometimes made of a tortoise-shell. [LYRA.]

2. To an arched or vaulted roof. (Virg. Aen. i, 505; Cic. Brut. 22.) [templum, p. 1112, a.] Thus in a Roman house, when the Cavum Aedium was roofed all over and had no opening or com-

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