Part 8 (1/2)
6 Those persons only can be witnesses who are legally capable of witnessing a testament. Women, persons below the age of p.u.b.erty, slaves, lunatics, persons dumb or deaf, and those who have been interdicted from the management of their property, or whom the law declares worthless and unfitted to perform this office, cannot witness a will.
7 In cases where one of the witnesses to a will was thought free at the time of its execution, but was afterwards discovered to be a slave, the Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the Emperors Severus and Antoninus declared that of their goodness they would uphold such a will as validly made; for, at the time when it was sealed, this witness was admitted by all to be free, and, as such, had had his civil position called in question by no man.
8 A father and a son in his power, or two brothers who are both in the power of one father, can lawfully witness the same testament, for there can be no harm in several persons of the same family witnessing together the act of a man who is to them a stranger.
9 No one, however, ought to be among the witnesses who is in the testator's power, and if a son in power makes a will of military peculium after his discharge, neither his father nor any one in his father's power is qualified to be a witness; for it is not allowed to support a will by the evidence of persons in the same family with the testator.
10 No will, again, can be witnessed by the person inst.i.tuted heir, or by any one in his power, or by a father in whose power he is, or by a brother under the power of the same father: for the execution of a will is considered at the present day to be purely and entirely a transaction between the testator and the heir. Through mistaken ideas on this matter the whole law of testamentary evidence fell into confusion: for the ancients, though they rejected the evidence of the purchaser of the family and of persons connected with him by the tie of power, allowed a will to be witnessed by the heir and persons similarly connected with him, though it must be admitted that they accompanied this privilege with urgent cautions against its abuse. We have, however, amended this rule, and enacted in the form of law what the ancients expressed in the form only of advice, by a.s.similating the heir to the old purchaser of the family, and have rightly forbidden the heir, who now represents that character, and all other persons connected with him by the tie referred to, to bear witness in a matter in which, in a sense, they would be witnesses in their own behalf. Accordingly, we have not allowed earlier const.i.tutions on this subject to be inserted in our Code.
11 Legatees, and persons who take a benefit under a will by way of trust, and those connected with them, we have not forbidden to be witnesses, because they are not universal successors of the deceased: indeed, by one of our const.i.tutions we have specially granted this privilege to them, and, a fortiori, to persons in their power, or in whose power they are.
12 It is immaterial whether the will be written on a tablet, paper, parchment, or any other substance: and a man may execute any number of duplicates of his will, for this is sometimes necessary, though in each of them the usual formalities must be observed. For instance, a person setting out upon a voyage may wish to take a statement of his last wishes along with him, and also to leave one at home; and numberless other circ.u.mstances which happen to a man, and over which he has no control, will make this desirable.
14 So far of written wills. When, however, one wishes to make a will binding by the civil law, but not in writing, he may summon seven witnesses, and in their presence orally declare his wishes; this, it should be observed, being a form of will which has been declared by const.i.tutions to be perfectly valid by civil law.
t.i.tLE XI. OF SOLDIERS' WILLS
Soldiers, in consideration of their extreme ignorance of law, have been exempted by imperial const.i.tutions from the strict rules for the execution of a testament which have been described. Neither the legal number of witnesses, nor the observance of the other rules which have been stated, is necessary to give force to their wills, provided, that is to say, that they are made by them while on actual service; this last qualification being a new though wise one introduced by our const.i.tution. Thus, in whatever mode a soldier's last wishes are declared, whether in writing or orally, this is a binding will, by force of his mere intention. At times, however, when they are not employed on actual service, but are living at home or elsewhere, they are not allowed to claim this privilege: they may make a will, even though they be sons in power, in virtue of their service, but they must observe the ordinary rules, and are bound by the forms which we described above as requisite in the execution of wills of civilians.
1 Respecting the testaments of soldiers the Emperor Trajan sent a rescript to Statilius Severus in the following terms: 'The privilege allowed to soldiers of having their wills upheld, in whatever manner they are made, must be understood to be limited by the necessity of first proving that a will has been made at all; for a will can be made without writing even by civilians. Accordingly, with reference to the inheritance which is the subject of the action before you, if it can be shown that the soldier who left it, did in the presence of witnesses, collected expressly for this purpose, declare orally who he wished to be his heir, and on what slaves he wished to confer liberty, it may well be maintained that in this way he made an unwritten testament, and his wishes therein declared ought to be carried out. But if, as is so common in ordinary conversation, he said to some one, I make you my heir, or, I leave you all my property, such expressions cannot be held to amount to a testament, and the interest of the very soldiers, who are privileged in the way described, is the princ.i.p.al ground for rejecting such a precedent. For if it were admitted, it would be easy, after a soldier's death, to procure witnesses to affirm that they had heard him say he left his property to any one they pleased to name, and in this way it would be impossible to discover the true intentions of the deceased.'
2 A soldier too may make a will though dumb and deaf.
3 This privilege, however, which we have said soldiers enjoy, is allowed them by imperial const.i.tutions only while they are engaged on actual service, and in camp life. Consequently, if veterans wish to make a will after their discharge, or if soldiers actually serving wish to do this away from camp, they must observe the forms prescribed for all citizens by the general law; and a testament executed in camp without formalities, that is to say, not according to the form prescribed by law, will remain valid only for one year after the testator's discharge.
Supposing then that the testator died within a year, but that a condition, subject to which the heir was inst.i.tuted, was not fulfilled within the year, would it be feigned that the testator was a soldier at the date of his decease, and the testament consequently upheld? and this question we answer in the affirmative.
4 If a man, before going on actual service, makes an invalid will, and then during a campaign opens it, and adds some new disposition, or cancels one already made, or in some other way makes it clear that he wishes it to be his testament, it must be p.r.o.nounced valid, as being, in fact, a new will made by the man as a soldier.
5 Finally, if a soldier is adrogated, or, being a son in power, is emanc.i.p.ated, his previously executed will remains good by the fiction of a new expression of his wishes as a soldier, and is not deemed to be avoided by his loss of status.
6 It is, however, to be observed that earlier statutes and imperial const.i.tutions allowed to children in power in certain cases a civil peculium after the a.n.a.logy of the military peculium, which for that reason was called quasimilitary, and of which some of them were permitted to dispose by will even while under power. By an extension of this principle our const.i.tution has allowed all persons who have a peculium of this special kind to dispose of it by will, though subject to the ordinary forms of law. By a perusal of this const.i.tution the whole law relating to this privilege may be ascertained.
t.i.tLE XII. OF PERSONS INCAPABLE OF MAKING WILLS
Certain persons are incapable of making a lawful will. For instance, those in the power of others are so absolutely incapable that they cannot make a testament even with the permission of their parents, with the exception of those whom we have enumerated, and particularly of children in power who are soldiers, and who are permitted by imperial const.i.tution to dispose by will of all they may acquire while on actual service. This was allowed at first only to soldiers on active service, by the authority of the Emperors Augustus and Nerva, and of the ill.u.s.trious Emperor Trajan; afterwards, it was extended by an enactment of the Emperor Hadrian to veterans, that is, soldiers who had received their discharge. Accordingly, if a son in power makes a will of his military peculium, it will belong to the person whom he inst.i.tutes as heir: but if he dies intestate, leaving no children or brothers surviving him, it will go to the parent in whose power he is, according to the ordinary rule. From this it can be understood that a parent has no power to deprive a son in his power of what he has acquired on service, nor can the parent's creditors sell or otherwise touch it; and when the parent dies it is not shared between the soldier's son and his brothers, but belongs to him alone, although by the civil law the peculium of a person in power is always reckoned as part of the property of the parent, exactly as that of a slave is deemed part of the property of his master, except of course such property of the son as by imperial const.i.tutions, and especially our own, the parent is unable to acquire in absolute owners.h.i.+p. Consequently, if a son in power, not having a military or quasimilitary peculium, makes a will, it is invalid, even though he is released from power before his decease.
1 Again, a person under the age of p.u.b.erty is incapable of making a will, because he has no judgement, and so too is a lunatic, because he has lost his reason; and it is immaterial that the one reaches the age of p.u.b.erty, and the other recovers his faculties, before his decease.
If, however, a lunatic makes a will during a lucid interval, the will is deemed valid, and one is certainly valid which he made before he lost his reason: for subsequent insanity never avoids a duly executed testament or any other disposition validly made.
2 So too a spendthrift, who is interdicted from the management of his own affairs, is incapable of making a valid will, though one made by him before being so interdicted holds good.
3 The deaf, again, and the dumb cannot always make a will, though here we are speaking not of persons merely hard of hearing, but of total deafness, and similarly by a dumb person is meant one totally dumb, and not one who merely speaks with difficulty; for it often happens that even men of culture and learning by some cause or other lose the faculties of speech and hearing. Hence relief has been afforded them by our const.i.tution, which enables them, in certain cases and in certain modes therein specified, to make a will and other lawful dispositions.
If a man, after making his will, becomes deaf or dumb through ill health or any other cause, it remains valid notwithstanding.