The Digest of Justinian, Volume 2

BOOK TWENTY-EIGHT

BOOK TWENTY-EIGHT 1 THOSE WHO CAN MAKE WILLS AND HOW WILLS ARE MADE 1 MODESTINUS, Encyclopaedia, book 2: A will is a lawful expression of our wishes concerning what someone wishes to be done after his death. 2 LABEO,Posthumous Works, Epitomized by Javolenus, book 1: In the case of someone who is making his will, at the time when he makes the will, soundness of mind is required, not health of body. 3 PAPINIAN,Questions, book 14: Testamenti factio is matter not of private, but of public law. 4 GAIUS,Institutes, book 2: If we are inquiring whether a will is valid, we ought first of all to consider whether the person who made the will had testamenti factio, and then, if he did have it, we may investigate whether he made a will in accordance with the rules of the civil law. 5 ULPIAN,Sabinus, book 6: Let us consider from what age males or females can make a will. The better view is that in the case of males, we should take the fourteenth year, but in the case of females, the twelfth, completed. But should a person have gone beyond his fourteenth year in order to be able to make a will or is it enough to have completed it? Suppose someone born on the first of January made a will on his fourteenth birthday; is the will valid? I say it is valid. Moreover, I think that even if he made it on the thirty-first of December after midnight on the thirtieth, the will is valid; for he is regarded as having already completed his fourteenth year then, as Marcian holds. 6 GAIUS,Provincial Edict, book 17: A person in parental power has not the right to make a will, and this is so much the case that even if his father gives him permission, he still cannot thereby lawfully make a will. 1. Deaf or dumb persons cannot make a will; but if someone has become dumb or deaf after making a will, because of illness or some other accident, the will nevertheless remains valid. 7 AEMILIUS MACER,Law on the Five Percent Inheritance Tax, book 1: If a dumb or deaf person has obtained from the emperor the privilege of making a will, the will is valid. 8 GAIUS,Provincial Edict, book 17: The will of a person in captivity, which he made while there, is not valid, although he has returned. 1. If a person has been interdicted from fire and water, neither any will which he made before the interdict nor any which he has made afterward is valid; also the property which he had when he was condemned will be forfeited to the state, or if his estate does not appear to be solvent, it will be made available to his creditors. 2. Those deported to an island are in the same position. 3. But those relegated to an island or interdicted from Italic territory and their own province retain the right to make a will. 4. But those who are condemned to be beheaded or to fight with wild beasts or to the mines lose their freedom and their property is forfeited to the state from which it is apparent that they lose testamentifactio. 358 BOOK TWENTY-EIGHT/TfIOSE WHO CAN MAKE WILLS 9 ULPIAN,Edict, book 45: If a person in custody after an accusation of crime has died before his condemnation, his testament will be valid. 10 PAUL,Views, book 3: Someone who has lost his hands can make a will although he cannot write. 11 ULPIAN,Sabinus, book 10: Hostages cannotmake a willexcept by specialpermission. 12 JULIAN, Digest, book 42: By the lex Cornelia the wills of those who have died while in the power of the enemy are confirmed with the same effect as if those who had made them had not fallen into the power of the enemy, and, in the same way, their inheritance belongs to whoever is entitled. Therefore, a slave appointed heir by a person who has died while in the power of the enemy, will be free and heir, whether he wishes to be so or not, although it is not really correct to call him a necessarius heres; for even the son of a person who has died while in the power of the enemy is obliged to accept the inheritance, even if he does not wish to do so, although he cannot be called a suus...