Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/106

78 A will in Roman law was not a mere distribution of testator's property: it was the formal nomination of one or more persons to continue as it were his personality and succeed to the whole of his rights and obligations to men and gods. In early times the heir had to perform the sacred rites of the family and to pay the debts, and if testator's property was not sufficient, he was still liable himself in full.

The power of making a will belonged to all free persons who were sui juris (i.e. not under the power of their father or other ascendant), of the age of puberty, not mad at the time and not naturally quite deaf and dumb. Spendthrifts and persons in the enemy's power could not make a will, but a will made before interdiction or capture was good.

The procedure was simplified by Justinian, partly indeed by previous Emperors. Seven witnesses were required, all present at the same time and subscribing and sealing the written document containing the will. Neither woman nor child nor anyone in the power of testator nor slave nor deaf nor dumb nor mad nor spendthrift nor the heir named nor anyone in the heir's power nor one in whose power the heir was, is a good witness. There was no objection to legatees as witnesses. The testator must sign the will and acknowledge it as his will to the witnesses, but need not disclose its contents. If he cannot write, an eighth person must subscribe for him. If he is blind, there must be a notary (tabellarius) to write and subscribe the will, or at least an additional witness. If the will be written entirely by testator and he states this fact in the document, five witnesses suffice. Valentinian III (446) had allowed a holographic will to be valid even without witnesses. The will might be written on boards or paper or parchment: the material was unimportant. Nor need the will be written at all. An oral declaration by the testator of his will in the presence of seven witnesses was enough without further formality.

Justinian made a concession to country people in places where literates (i.e. persons able to read and write) were scarce. There must be at least five witnesses, literates if possible, one or two of whom if necessary might subscribe for the rest. In such wills the witnesses must however be informed who are appointed heirs, and must depose this on oath after testator's death.

Soldiers although in the power of their fathers were competent to make a will dealing with their separate estate (castrense peculium). If they were in actual service in camp or had not retired more than a year, their will was exempted from all formalities. This concession was begun by Julius Caesar and made permanent by Trajan in the most general terms: "Let my fellow soldiers make their testaments as they will and as they can, and let the bare will of the testator suffice for the division of