Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/107

Rh his goods." It must however be definitely made and understood as a will and not be a mere casual remark in conversation. Such a will ceased to be valid after testator had left the service for a year; he must then make his will in the ordinary form. Words written on his shield or scabbard with his blood or scratched in the dust with his sword at the time of death in battle were allowed by Constantine as a soldier's will.

A will might be revoked not only by a second will duly made, but by cutting the threads which fastened the tablets or breaking the seals with that intention. If ten years have elapsed, a verbal declaration of revocation proved by three witnesses or made in court is enough. If a second will not duly made gave the inheritance to the persons who would be entitled on intestacy and the first will gave it to others not so entitled, the second will, if witnessed by five persons on oath, is to prevail (439).

An informal disposition of property was sometimes made by a testator's writing his desire in a note-book (codicilli). The practice was introduced with Augustus' approval and was confirmed by the great lawyer Labeo, in that he followed it himself. It was originally connected with fideicommissa. Codicils presupposed a will appointing an heir, and might be made more than once, before or after the will, but should be confirmed expressly or impliedly by the will, subsequently or by anticipatory clause. Even if no will followed, codicils were held good, if there was evidence of testator's not having retracted his intention, testator in such a case being deemed to have addressed his request to the heir ab intestato. Only by way of trust could an heir be appointed in codicils. Codicils required five witnesses who should subscribe the written document. Testator's subscription was not necessary if he had written the codicils himself. Oral codicils are mentioned.

It became a practice for a testator in making a formal will to insert a clause declaring that if for any cause the will should be found invalid as a will, e.g. by the heir's non-acceptance, he desired that it should pass as codicils. Any person claiming under the will had to elect whether he claimed as under a will or under codicils, and to declare his intention at the first. Parents however and children within the fourth degree were allowed after suing on it as a will and being unsuccessful to apply as for a trust, for they are regarded as claiming what is due, whereas outsiders are trying to secure a gain (424).

A testator could appoint as many heirs as he pleased. If no shares are mentioned, all take equally. If some heirs accept and others do not, those who accept take the whole among them, the shares being in the original proportions to each other. A testator may also provide for the contingency of the heir or heirs named not accepting, or dying, or otherwise failing to take, and substitute another or others on this contingency. And he could also appoint a substitute for a child in his power becoming heir but dying before he came of age (puberty). In