and sealing, were required to be completed at once, without the interposition of any act not bearing on the testament, unless it was an act demanded by nature, or by the bodily health of the testator.

2. The presence of seven witnesses. It was required that they should be specially summoned for the purpose, testamenti celebrandi gratia, or, at least, informed as to the nature of the act in which they were to take a part. The testator produced to them his testament written. before-hand, or at the time, by himself or by his direction. If it was not written by the testator, he had to affix thereto, in presence of the witnesses, his subscriptio, that is, his name or signature.

3. The signature of the witnesses (subscriptiones), and their seals (signacula). When the testament was opened the witnesses affixed their signatures to it; and, after it was closed, their seal (1). If a testator wished to make a secret testament, the contents of which should be unknown, he produced it sealed, tied, or rolled up, so as to conceal the writing, at the same time declaring it to be his testament; he then signed it, in presence of the witnesses, on the end left open; or, if he could not write, from ignorance or incapacity, an eighth witness subscribed for him. The witnesses then affixed their names to the testament; and, having shut it up, attached their seals (C. 6, t. 23, 21).

§ 4. To prevent fraud Justinian required the name of the hares to be written by the testator himself, or by one of the witnesses; but this form was afterwards abolished by Novella, 119, c. 9.

§ 3. This new form of testament was called Tripartitum. For the conditions as to uno contextu, and the presence of the witnesses, were derived from the civil, i.e., the old law; the number (2) seven, and the affixing of the seals, from the prætorian law; and lastly, the necessity for signing, from the imperial Constitutions.

§ 6. As a general rule, any person with whom the testator had testamenti factio might be a witness (3).

(1) The witnesses might use each a different seal, or all the same (§ 5) (a). For further certainty, therefore, each witness, besides sealing the testament, wrote with his own hand, by whom and on whose testament the seal was affixed.

(2) This rule is said to be derived from the Prætors, for of the seven persons required to be present by the civil law only five were witnesses; it was the Prætors who converted the libripens and the emptor familia into the sixth and seventh.

(3) Originally, that is whilst the testament was by a solemn sale (mancipatio), none had the testamenti factio, who were

(a) The freedmen who, before Justinian's time, had no right to wear rings, could not

The following were excepted:

incapable of acquiring property in that form. This excluded not only those who had not the commercium, as peregrini and prodigi under interdict, but all who were physically or morally incapable of taking part in the mancipatio. After the hæres institutus had ceased to be emptor familiæ, or to concur personally in making the testament, the number of those having testamenti factio was enlarged; indeed, the only parties excluded were persons who neither in their own nor in their master's right enjoyed civil rights, viz., peregrini (after Caracalla's time not a numerous class) and deportati (tit. 14, post).

have been witnesses, had every witness been required to use his own seal.

K

1. Women, who were not, if possible, to appear in civil matters. 2. Impuberes, lunatics, and persons deaf or dumb; because such persons could not understand, or report, or hear, so as to bear witness. 3. Prodigi, who were debarred from the management of their own property by interdict (1). 4. Persons declared infamous, or incapable of bearing witness in court. 5. Slaves, who in their own right had no civil rights.

§ 7. The capacity of a witness must exist at the time of the making of the testament: incapacity before or subsequent to this was unimportant.

§ 7. When a slave believed to be free was summoned as a witness, the testament was valid if at that time he was by common repute free, and no one then disputed his status.

§ 9. Besides these cases of absolute incapacity, which excluded a man from being a witness to any testament, there were cases of relative incapacity which excluded a man from being a witness to particular testaments. Thus a member of the same family with the testator was not a competent witness to his testament. A filius-familias could not attest the will of his pater-familias: neither the pater-familias of a filiusfamilias nor his brother could attest the will of such filius-familias, by which he disposed of his peculium cartrense or quasi-castrense after leaving the army. This accords with the opinion of Gaius (ii. 106), but is opposed to that of Ulpian and Marcellus (D. 28, t. 1. 20, § 2.)

§ 8. But a pater-familias and his filius-familias, or two brothers, might attest the will of a person not of their family. Although attestation by members of the same family, domesticum testimonium (§ 9), was forbidden, that was only where the testament of one of the members was in question.

§ 10. Neither the hæres institutus nor the members of his family were competent witnesses: for a man could not bear witness for himself (2).

§ 11. Legatees, cestuis-que trust, and testamentary tutors might be witnesses for as they did not succeed to the hæreditas, which constitutes the real essence of the testament, it was not thought necessary to reject them as witnesses thereto, notwithstanding their interest in its validity, upon which of course depended whether its dispositions in their

(1) Their testimony was rejected, not because they could not make a testament, but because, having had the capacity to make, they had been found unworthy to retain it.

(2) In the old testament per æs et libram, the hares was purchaser, and as such excluded, with all his familia. After he had ceased to be emptor familiæ, it was thought he might be considered a stranger to an act between the emptor and

the testator; but several jurists recommended that he should not appear as a witness. And Justinian very properly made this recommendation imperative, for in the tripartite testament the only parties really concerned were the testator and the hæres the transaction was inter testatorem et hæredem, as formerly inter testatorem et familiæ emptorem.

favour should take effect: indeed Justinian settled this point by a special Constitution which is unknown. Still less would any of the family of a legatee or of a cestui-que trust be deemed incompetent.

§ 12. A testament might be written on tablets, paper, parchment, or any other material.

§ 13. Several originals (codices) might be made of the same will, and it was often useful to do so; for one of them might be lost. The production of one codex was enough, if framed according to the required forms.

§ 14. Besides written testaments, there were verbal testaments. The testament per æs et libram required no writing for neither mancipatio nor nuncupatio required it. Instead of producing the written tablets, and confirming them by pronouncing the formula, the testator might verbally declare his intentions, and nominate his hæres aloud. Probably, in old times, when writing was less common, most testaments were made in this form. This naming of the hæres was properly called nuncupatio (palam nominare), though that term was afterwards used to denote the declaration by which a man confirmed a written testament without pronouncing the name of the hæres.

The imperial Constitutions, whilst they simplified testamentary forms, retained this verbal or nuncupative form, in which the testator declared his intentions before seven witnesses (1).

TITLE XI.-OF THE TESTAMENTS OF SOLDIERS.

Pr. Soldiers in the field were relieved by the imperial Constitutions from compliance with the above rules as to testaments. Therefore, provided only a soldier by some means or other manifested a clear intention to make a testament, his testament was valid. The form was nothing. It was enough to show his intention; and this might be proved by any writing (C. 6, t. 21, 15), or (sine scriptura) by witnesses (2).

§ 1. Observe, the soldier must manifest a clear intention: because vague words used in conversation (ut sermonibus fieri solet) would not suffice. It must be proved that the soldier verily intended to make a testament (3).

(1) Such testament, when made uno contextu and before seven witnesses, was valid by the civil law (perfectissimum, § 14) of course, it could not be sealed as the prætorian law directed; nevertheless, the Prætors, as executors of the civil law, gave effect to it by granting the possessio bonorum.

(2) Prior to the Emperors of the lower

empire, who introduced the maxim testis unus testis nullus, one witness was probably enough.

(3) In the case referred to (§ 1), the summoning of the witnesses to hear his last will is mentioned, not because witnesses were necessary to the validity of the will, but to show that the soldier really intended to make one.

Pr. However, the privilege of being exempt from the ordinary solemnities of testaments does not attach to soldiers at all times and in all places. It attaches to none but those in the field. Of testators in camp; those who never were or have ceased to be soldiers, e.g., veterans ; and of testators not in camp, all, whether soldiers or not, were bound to observe the regular forms.

§ 3. The testament of a soldier after he had left the service (post missionem), remained valid for one year only after he had left (1). If the veteran, therefore, died within the year, his informal testament, made before leaving the service, continued valid, even when the appointment of the hæres was conditional, and when, consequently, the testament could not be executed till the condition was fulfilled. But if he did not die within the year, the veteran was bound to substitute for his military testament a formal one.

§ 4. A testament, originally informal, did not become valid by the testator becoming a soldier, and so acquiring the right to make an informal testament (non jure). Nevertheless, it might be held valid ex nova militis voluntate, if the testator, after enlisting, either added to it or subtracted from it, or in some way manifested his intention to give validity to that which was originally void. In truth, such intention is itself a testament; for a soldier who confirms a testament in fact remakes it (D. 28, t. 3, 6, § 6).

§ 5. When a soldier suffered diminutio capitis, his testament, though prior in date to his change of status, continued valid just as if it had been made after such change. By common law, when a testator suffered diminutio capitis, his testament became void (irritum), and its validity was not restored by his resuming his former status (t. 17, post); though of course he might make a new testament, unless there was anything in his new status to prevent him. But, by privilege, soldiers on changing their status (2) did not require to remake their testaments. It was presumed that they adhered to that already made, so far as those goods were concerned over which, notwithstanding their change of status, they continued to have a disposing power (3).

(1) That is, if his dismissal was honourable (honest); but if he was dismissed because of his unworthiness to serve, his testament, unless made in regular form, was null from the date of his dismissal. The privilege of a soldier attached when he was enrolled (in numeris).

(2) This refers particularly to the minima diminutio capitis, or change of family; for if a testator lost his freedom or citizenship, he was no longer a soldier, and had no more power to make a testament. A rescript of Hadrian, however, gave this power to soldiers condemned for a military

offence; from which Ulpian concludes, that the testament of a soldier, made before condemnatio, continued valid after it.

(3) If, therefore, a military paterfamilias had by testament disposed of all or even of a part of his goods-for soldiers might die partly testate and partly intestate-and he became adrogatus, and so ceased to be sui juris, his will, instead of being void, as would have been the case at common law, took effect upon those goods which he still had in his disposition; namely, his peculium castrense. So if a military filius-familias had by testament

§ 2. Certain persons, being soldiers, were allowed to make wills, who would otherwise have been incapable to do so; e.g., filii-familias, persons deaf and dumb (1).—§ 6. But afterwards filii-familias obtained the power of bequeathing by an ordinary testament their peculium castrense, even after they had left the army. In like manner, also, they might dispose of their peculium quasi-castrense. As to those deaf and dumb, Justinian laid down certain rules, on complying with which such persons, even though not in camp, were entitled to make a testament (p. 134).

TITLE XII.-OF PERSONS NOT HAVING THE POWER TO MAKE A

TESTAMENT.

Pr. In order to determine whether a testament was valid, it was sufficient to ascertain that the necessary forms had been complied with. The essential point to be ascertained is, whether the testator had the testamenti-factio, i.e., the capacity of making a testament (Gaius 2, § 114). Now this capacity belonged to those only on whom it had been conferred by law: for the incapacity to make a will is simply the nonpermission to do so.

By the Twelve Tables testamenti-factio was confined to patresfamilias (p. 16) (2). Filii-familias could make no testament (§ Pr.), even with the pater-familias' consent; for the testamenti-factio, which set aside the legal order of succession, was a privilege of public law, and could be granted only by the law.

Augustus, Nerva, and Trajan allowed filii-familias to bequeath their peculium castrense, but only whilst on active service. Adrian allowed the same privilege to filii-familias veterans (3).

In course of time the right to bequeath the peculium quasi-castrense was allowed to some filii-familias, such as consuls and præsides (C. 3, t. 28, 37). Justinian allowed it to all (C. 6, t. 22, 12).

disposed of his peculium castrense, and then was emancipated, being still a soldier, his testament was held to apply to his new status, and took effect, not merely upon his peculium castrense, but also upon all his goods, just as if it had been made after emancipation.

(1) Deaf and dumb persons. These must be soldiers who have met with some accident, and are about to leave the service.

(2) That is, citizens sui juris. Citizens alone could make a testament, and of these, patres-familias alone could do so, for they were the only proprietors. The right after

wards obtained by filii-familias to have property of their own did not involve the right to dispose thereof by testament; that required the interference of the legis lature.

(3) Prior to Justinian, if the filiusfamilias did not dispose of the peculium castrense, it belonged to the pater-familias, not as hæres (or successor), but as proprietor, by virtue of his potestas (jure communi). Justinian (Pr. si vero) decreed that the peculium castrense should not go to the father if there were any children or brothers (B. 3, t. 3).