(c) BROTHERS AND SISTERS OF THE HALF-BLOOD, WITH

THEIR CHILDREN.

In the third order, brothers and sisters of the half-blood were admitted on exactly the same terms as brothers and sisters of the whole blood in the previous order. Similarly, children represented their parent and together took his share. Some uncertainty prevails, when none but such nephews and nieces survived, as to whether the inheritance was distributed by heads or stocks.

(d) COGNATES GENERALLY.

In the fourth order, all the remaining cognates were admitted, a nearer grade being called before the next remoter one, and those in the same grade having the inheritance equally distributed among them.

(e) HUSBAND AND WIFE.

In the fifth order, husband and wife were admitted to each other's inheritance, according to the provisions of the older law.

(ƒ) THE IMPERIAL TREASURY AND CERTAIN SPECIAL CLAIMANTS.

Where the deceased left no surviving cognate or married partner, the imperial treasury claimed the inheritance; but a period of four years had to elapse within which a successor might be recognized. The treasury was not treated as an heir, but it was held bound to satisfy creditors and even to pay legacies left by codicil. The period of four years was calculated from the time that it was certain a Will was invalid, or, in case of an intestacy, L. 10, D. (xliv. from the time when the successive claimants. 3). had failed to avail themselves of the period allowed them to take up their rights.

In place of the treasury, the privilege of succession was

conceded to certain special classes of persons, besides those briefly enumerated above. Among these were, any one who had voluntarily undertaken the care of the deceased-if the deceased had been insane and neglected by his natural relations. Such a person was admitted to the exclusion of all the cognates. Similarly, if a rich man

left an indigent widow without a dower, she and her children were called together to a share in the inheritance. The question of wealth and poverty sufficient to bring this part of the law into application was one for the judge's discretion. If the husband left the wife property by legacy or otherwise, a proportional reduction took place; but the husband could not, by Will, deprive his wife of this portion. At one time, Justinian allowed an indigent husband in like circumstances to inherit a fourth part of a rich wife's estate, but in his later legislation Nov. (liii. 6). he repealed this law and disallowed the hus- Nov. (cxvii. 5). band's claim. By the eighteenth Novell Justinian had provided that when a deceased had brought up a family of illegitimate children, the mother of whom lived in his house, they should be entitled to a sixth part of the inheritance, the mother taking an equal share of the part with each child.

§ 2. Selection of Heir by the Will of the Deceased.

HISTORICAL ENUMERATION OF THE VARIOUS SORTS OF WILLS.

It is well known that in the earliest days of Rome, that is, at some time before the date of the XII. Tables, the conception of a Will in the modern sense had not arisen. The inheritance of a deceased person either went to a person or classes of persons generally designated by law, or had been formally transferred to another before his decease. It is out of this formal and public transfer that the gradual growth of the idea of a Will manifested itself. Up to the latest days of Justinian's legislation, the

witnesses to the Will fulfilled the most important functions; and there was a certain relic of publicity attaching even to documents in which privacy was chiefly regarded. This was not only because of the contingent claims, in the event of an intestacy, of large and important classes of claimants, such as the gens or clan and the State treasury, but because of the semi-official position attributed to the heir and the guardians or other trustees in guardianship appointed under a Will.

(1) The various Wills prevalent at different epochs in the history of the Roman community, many of them existing contemporaneously, may be enumerated as follows: (a) The Will by formal alienation in life in the public assembly (calatis comitiis).

Cic. de Orat.

(b) The Will made at the outset of a mili(i. 53). Plu- tary expedition (in procinctu).

tarch, Conolanus.

(c) The Will by fictitious sale to the heir, signified by the scales, brass coin, and presence of witnesses and of the purchaser (per æs et libram).

(d) Modification of (c) for purposes of privacy, accomplished by making the purchaser (familiæ emptor) personate the heir, and by instructing the heir in a document not at the time published.

(e) The prætorial Will, in which all fictitious solemnities were dispensed with, and the only ceremonial required consisted of the presence of seven witnesses, who must attach their seal to the document purporting to be a Will.

(f) The imperial Will of a private kind before Justinian's time, in which seven witnesses attached their signatures and seals, though ignorant of the contents. This was called the tripartite Will, from the three different quarters, the civil law, the Prætor's jurisdiction, and the L. 21, C. (vi. imperial constitutions, to which its formalities could be traced. This is the direct ancestor of the modern continental "mystic" or "olographic" Will. (g) The imperial Will under Justinian, of a private. kind, in which the testator or the witnesses wrote the

23).

L. 4, J. (ii. 10). heir's name. This necessity was subsequently Nov. (cxix. 9). dispensed with.

(4) The imperial Will, introduced by Honorius and Theodosius, of a public kind, of which the only formality was public registration in an imperial or provincial office, in accordance with the law, or by special L. 19, C. (vi. imperial permission. 23).

(i) The unwritten Will of Justinian's time, in which the only requisites were the presence of seven witnesses and the public nomination of the heir in their hearing.

() Certain Wills of special classes of persons-as of the blind, of soldiers, of parents in respect of their children, of persons in rural districts without access to suitable witnesses, and of persons labouring under contagious diseases.

The first two of these kinds of Wills—(a) and (b)—were already obsolete in Gaius' time. The third (c), by fictitious sale, still survived in a modified form of (d). The Prætorian will (e) was rendered superfluous by the imperial enactments; and thus, in Justinian's time, the only subsisting wills were the public and private written Wills (g) and (h), the unwritten Will (i), and the Wills of special classes of persons (j).

The peculiarity of soldiers' Wills was found in the fact that they were exempted from the requirement of every sort of formality. It was said that soldiers, as also sailors of the fleet, might make their Will on their shield or their helmet, in the dust with their sword or with their blood. All that was required was the testimony of at least two witnesses, casually present, to the fact of the Will having been made. A son in his father's control could make a Will of this class, as also one otherwise incompetent, as being deaf and dumb. They enjoyed the right of naming as heirs persons who would otherwise be incompetent to assume the office. They might pass over their children in silence, and were relieved from any attention to the claims of near relations. They might be partially intestate, give in legacies more than three-fourths of the inheritance, make numerous Wills, and name the heir in a codicil. These privileges only lasted during actual service in the

Y

field or in camp, and Wills so made remained in force for a year after a soldier's discharge. The soldier's Will was first introduced by Julius Cæsar.

D. (xxix. 1).

In the Wills of blind persons, certain special precautions were taken to secure that the testator knew what was being written down in the presence of the witnesses. The testator might either instruct a public clerk in the presence of witnesses, who all added their signatures and scals, or entrust the writing beforehand to some one else and have it read out by the clerk, in the presence of the witnesses the signatures and seals being added as before.

An irregular Will was allowed by Justinian to parents in favour of their children. All that was required was that the names of the children should be written with the testator's own hand, and that the shares in which they were called to the inheritance should be expressed in words, and not in figures.

Nov. (cvii. 1).

In rural districts, where it might be difficult to obtain competent witnesses who could write, a special form of Will was permissible, in which the presence and signatures of five witnesses might suffice, and if only one or two of L. 31, C. (vi. these could write, they might sign for the 23).

rest.

Where the existence of a contagious disease prevented witnesses attending, it was not necessary for all the witnesses to be present at the same time. Witnesses actually suffering from the disease might attend and sign L. 8, C. (vi. later on, but no relaxation as to the number of 23). witnesses could be permitted.

It will be seen from the above review that there were two breaches in the history of testamentary succession: one when the later form of the fictitious sale was introduced, which brought with it the secret Will, operating only at death; the other, the substitution of the various imperial Wills for the prætorian and civil law Wills in which the main attention was turned to securing, by the presence of a sufficient number of trustworthy witnesses, that the Will was deliberate and genuine.