'testamenti factio activa.' No one but a civis Romanus pater- § 112. familias with full capacity for all juristic acts has testamenti factio activa. A filiusfamilias can only dispose by will of his bona castrensia and quasi castrensia, in regard to which he stands in the same position as a paterfamilias. Impuberes, furiosi, and prodigi are not competent to make a will, because they lack capacity of action. A pubes minor, on the other hand, is competent to make a will, because he enjoys complete capacity of action (supra, p. 230). As long as the tutela mulierum was in force, women who were sui juris could only make a will with the auctoritas of their guardian; but the abolition of the tutela mulierum removed this restriction. To have 'testamenti factio passiva,' on the other hand, is to be capable of being instituted heir or of being appointed legatee in a will. Testamenti factio passiva was a necessary incident of the jus commercii, i. e. of proprietary capacity according to the jus civile. In Justinian's law, where the antithesis of jus civile and jus gentium had disappeared, testamenti factio passiva was accordingly a necessary incident of proprietary capacity in general, in a word, of a man's personality as such (supra, p. 167). The only requirement was that the person instituted heir should be in existence at the death of the testator, at any rate as a nasciturus (supra, p. 170). In Justinian's law, the juristic persons of public law, such as the state, the church, or the communities, had testamenti factio passiva, but other juristic persons could only acquire it by special grant from the emperor (cp. p. 197, note 1). The incapacity to take as heirs or legatees which was imposed on certain classes of persons by positive enactments of a penal nature, necessarily involved a forfeiture of testamenti factio passiva (infra, p. 592). The successive stages through which Roman wills passed in the course of their historical development will appear from the following exposition. I. Wills in the Early Civil Law. The only kind of will originally known to the early civil law was the 'testamentum calatis comitiis '1a, i. e. a will made in the popular 1 As to the nature of the comitia calata v. Mommsen, Röm. Staatsrecht. vol. iii. p. 39. § 112, assembly. This fact is probably to be explained by the circumstance that the institution of an heir was, at the outset, a modified form of adoption, an adoption, namely, the effect of which was to make the heres institutus the son of the testator, not indeed immediately, but as from the testator's death-provided, of course, the will was not revoked, and the heir complied with the testator's intentions. As in the case of adoptions, so in the case of wills, the co-operation of the popular assembly was required. Soldiers standing in the line of battle were the only persons in whose favour an exception was made, they being permitted to make a valid will informally by a mere verbal communication addressed to their nearest comrade. A will made in this way was called a 'testamentum in procinctu'. In process of time, however, a form of private testament came into use. This was the so-called 'mancipatory will,' or 'testamentum per aes et libram.' The testator, in the presence of five witnesses and a libripens, mancipates (i. e. sells) his estate (familia pecuniaque) to a third party, called the 'familiae emtor,' with a view to imposing upon the latter, in solemn terms (by a 'nuncupatio'), the duty of carrying out his last wishes as contained and expressed in the tabulae testamenti. The object of the transaction is to make the familiae emtor, not the material, but only the formal owner of the estate. His actual duties consist in carrying out the testator's intentions and handing over the property to the persons named in the tabulae testamenti. The familiae emtor is neither more nor less than the executor of the testator's will. And it is as such that he describes himself in the solemn words of the mancipatio with which he takes possession of the familia pecuniaque of the testator: familia pecuniaque tua endo mandatelam custodelamque meam, quo tu jure testamentum facere possis secundum legem publicam, hoc aere aeneaque libra esto mihi emta. We have here a case of a qualified 2 See Schulin's treatise referred to above p. 543, n. 4 (especially p. 50 ff.), where the author supports the above view of the origin of wills by arguments which to me seem conclusive. For a different view v. Pernice, Formelle Gesetze im röm. Recht, p. 29. Originally the only available form of adoption was arrogatio. The datio in adoptionem is manifestly of later origin. It presupposes the rule of the Twelve Tables: si pater filium ter venumduit &c. Cp. supra, p. 500. 4 GAJ. III 204. The familiae mancipatio with a collateral agreement in favour of a third party, § 112. viz. the person (or persons) benefited by the will. It is the earliest instance in Roman law of an agreement concluded in favour of a third party. Just as a mancipatio (scil. fiduciae causa, supra, p. 62) can be utilized for the purpose of effecting a depositum, so it can be utilized for the purpose of effecting a mandatum. And that is what actually happened in the case before us. We have here the oldest form of the Roman contract of mandatum: a juristic act validly concluded, not indeed consensu, but re (viz. by a formal transfer of ownership), and giving rise to a rigorously binding obligation. The mandatum and the transfer of ownership are not mutually incompatible. The familiae emtor is the mandatary of the testator, because he is, formally speaking, the owner of the familia. A mancipatory will is akin to a fiducia, because, in the former as in the latter, the ownership transferred is merely formal ownership, and, as such, is made the practical medium for effectuating the purposes specified in the collateral clause. A mancipatory will is not, however, a fiducia, in the technical sense of the term, inasmuch as in a fiducia the duties of the formal owner are left to his 'good faith,' and accordingly depend on the circumstances of the case and the discretion which a man of honour would be expected to exercise; whereas, on the other hand, the duties of the familiae emtor are accurately defined by the nuncupatio in such a manner as to bind him rigorously to their performance. The mancipatio to the familiae emtor is not made 'fidei fiduciae causa' (with a reference to other collateral agreements); it is made with a nuncupatio complete in itself, forming part and parcel of the mancipatory act, and placing the precise nature of the duties to be performed beyond all doubt. A fiducia is a mancipatio with an undefined trust-clause, a mancipatory will is a mancipatio with a strictly defined trust-clause. A fiducia, being indefinite, gives rise to an actio bonae fidei (supra, p. 64); a nuncupatio, being emtor declared that in acquiring ownership in the familia by means of the mancipatio, he was merely acting on behalf of (i. e. as the agent of) the testator (endo mandetelam), and consequently § 112. precise, gives rise to an actio stricti juris. The nuncupatio which accompanied the mancipatio accordingly imposed a definite duty on the familiae emtor, and his obligation to perform that duty was fully protected by the rule of the Twelve Tables: Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto". The only effect indeed of such an application of mancipatio to the familia of the testator was, in the first instance, to enable the testator to give bequests. It could not enable him to make another person heres, because the familiae emtor himself was formally the sole heres, i. e. the sole owner of the estate. Accordingly the words used by the testator in his nuncupatio were merely as follows: haec ita ut in his tabulis cerisque scripta sunt, ita do, ita lego, ita testor, itaque vos Quirites testimonium mihi perhibetote. As far as its contents were concerned, the mancipatory will was at first merely a will for giving legacies. It was not till later, when the notion of the familiae emtor's ownership became obliterated, and, still more, when the familiae emtor ceased to be regarded as the agent and executor of the testator and assumed the rôle of a person whose presence was merely required for formal purposes, that the inheritance, so to speak, disencumbered itself of his ownership. Accordingly it became, henceforth, the foremost function of every will to provide the inheritance with an owner (heres), and, at the same time, to provide the creditors with a person who should be answerable to them for the debts of the estate. It had formerly been the duty of the familiae emtor not only to pay the legacies, but also to pay the debts of the deceased. When, in the 5 Cp. supra, p. 60 ff. On the limited rôle thus played by the mancipatory will in its original form, v. Schulin, op. cit. p. 54ff. The author, in the same place, lays much stress on the fact that the familiae emtor was merely the 'curator' of the estate, but he appears to assume that such a curatorship was inconsistent with the real nature of mancipatio. We have endeavoured in the text to show that this assumption is unfounded. For the transfer of ownership (which the manci patio effects) is precisely the medium through which a valid mandatum is constituted. The same thing occurs in the case of a trustee in German law. In the old law mere consensus is not sufficient to constitute a valid mandatum. 'Testari means merely to declare in the presence of witnesses' (testes), Schulin, op. cit. p. 58. Sometimes it even means a mere declaration of intention as such; Kipp, Die Litisdenuntiation, p. 62 ff. course of time, both these duties ceased to be regarded as properly § 112. incumbent upon the familiae emtor, the law compelled the testator to fill up the vacancy thus created by instituting an heir. was the process by which the Roman will assumed the form in which it has been 'received' in Germany. The mancipatory will of the original type was conceived on the old traditional lines of a mere singular succession on death. The interests of the creditors of the estate (and the interests of the legatees) rendered the testamentary institution of an heir imperative, and it was under the pressure of these interests that a will became, in Roman law, a juristic act the essence of which consisted in its providing, first and foremost, for the appointment of a successor to the personality of the testator; in other words, in its providing for a universal succession. It is thus we arrive at the rule which governs the mancipatory wills of the later type: velut caput et fundamentum intellegitur totius testamenti heredis institutio (Gajus II § 229). And to such lengths was this rule carried that, according to the classical law, all testamentary dispositions which preceded the institution of the heir were void. In the classical law the testamentum calatis comitiis has ceased to exist. The will of the classical civil law is the mancipatory will (per aes et libram). GAJ. Inst. II § 101: Testamentorum autem genera initio duo 102 eod. Accessit deinde tertium genus testamenti quod per |