1Modestinus, Pandects, Book II. A will is the lawful expression of our wishes with respect to what anyone desires to be done after his death.

2Labeo, Abridgments of Last Works by Javolenus, Book I. Soundness of mind is required of a testator at the time that he makes a will, but bodily health is not necessary.

3Papinianus, Questions, Book XIV. The execution of a will is not a private right, but a matter of public law.

4Gaius, Institutes, Book II. If we make inquiry as to whether a will is valid, we should first ascertain whether he who made it had the right to do so, and then, if he had, we should ascertain whether it was drawn up in accordance with the rules of the Civil Law.

5Ulpianus, On Sabinus, Book VI. Let us consider at what age males or females can make a will. The better opinion is that males must have attained the age of fourteen and females that of twelve, to fulfill the legal requirements. In order to make a will, is it sufficient for a party to have reached the age of fourteen, or must he have passed that age? Suppose a person born on the Kalends of January makes his will upon his fourteenth birthday, will such a will be valid? I hold that it will be valid, and I go even farther, and say that if he made his will upon the day preceding the Kalends of January, after the sixth hour of the night, his will will be valid, for, according to Marcianus, he is then considered to have completed his fourteenth year.

6Gaius, On the Provincial Edict, Book LXX. Where an individual is under the control of his father, he has no right to make a will; and to such an extent is this true that even if the father should grant him permission, he, nevertheless, cannot legally execute a will. 1Persons who are deaf and dumb cannot make a will, but where anyone becomes dumb or deaf through illness, or any other accident, after the will has been executed, it will still be valid.

7Æmilius Macer, On the Twenty Per Cent Law of Inheritance, Book I. Where a person who is dumb or deaf obtains permission from the Emperor to make a will, it will be valid.

8Gaius, On the Provincial Edict, Book VII. A will executed by a person while in the power of the enemy is not valid, even though he should return. 1Where fire and water have been forbidden to anyone, no will which he made previously or subsequently will be valid, and whatever property he was possessed of at the time of his condemnation shall be confiscated; or, if it does not seem to be sufficiently valuable for this to be done it shall be abandoned to his creditors. 2Persons who have been deported to an island are in the same condition. 3Those, however, who have been relegated to an island, and such as have been forbidden to remain in Italy or in their own province, retain the right to make a will. 4Moreover, those who have been sentenced to fight in the arena, or to be thrown to wild beasts, or to work in the mines, forfeit their liberty, and their property is confiscated; from whence it is evident that they lose the right to make a will.

9Ulpianus, On the Edict, Book XLV. If anyone accused of crime should die in prison before being convicted, his testament will be valid.

10Paulus, Opinions, Book III. Where a man has lost his hands, he can make a will, even though he is unable to write.

11Ulpianus, On Sabinus, Book X. Hostages cannot execute a will, unless permission is granted them to do so.

12Julianus, Digest, Book XLII. According to the Lex Cornelia, the wills of those who die while in the power of the enemy are confirmed, just as if those who had executed them had never been in the hands of the enemy, and their estates pass to whomever are entitled to them under the testamentary provisions. Wherefore, in case a slave is appointed heir by a person who dies while in the power of the enemy, he will become free and the heir of the testator, whether he is willing or not; although he is improperly said to be a necessary heir, for the son of a man who dies while in the hands of the enemy must assume the obligation of the estate, even if unwilling to do so, although he cannot be said to be his heir, as he was not under his control at the time of his death.

13Marcianus, Institutes, Book IV. Those who have been captured by robbers, as they remain free, can make a will. 1Moreover, those who perform the duties of envoys in foreign countries can make a will. 2Where anyone convicted of a capital crime appeals, and makes a will in the meantime, while the appeal is pending, and then dies, his will is valid.

14Paulus, Rules, Book II. Where a slave manumitted by the will of his master is not aware that the latter is dead, and that the heir has entered upon his estate, he cannot execute a will, even though he may already be the father of a family, and his own master; for he who is uncertain as to his own condition cannot make an absolute testamentary disposition of property.

15Ulpianus, On the Edict, Book XII. Those who entertain any doubt with reference to their condition or are mistaken concerning it cannot execute a will; as the Divine Pius stated in a Rescript.

16Pomponius, Rules. It is held that a son under paternal control, the slave of another, a posthumous child, and a deaf person, have the right to take under a will; for, although they cannot execute one, still they can acquire property by a will, either for themselves or for others. 1Marcellus observes that an insane person also has the right to take under a will although he cannot execute one; hence a party is understood to possess this right, because he can acquire for himself either a legacy or a trust, for the right to bring a personal action is also acquired by parties that are not aware of the fact, but who are of sound mind.

17Paulus, Sentences, Book III. Where a party loses his mind on account of bodily illness, he cannot make a will as long as this condition exists.

18Ulpianus, On Sabinus, Book I. He who is legally prohibited from managing his own property cannot make a will, and if he should make one, it will not be valid in law. Where, however, he executed a will before his interdiction, it will be valid. Hence it is reasonable that he cannot be offered as a witness to a will, since he has not the right to make one himself. 1Where anyone has been convicted of public libel, it is stated in the Decree of the Senate that he cannot make a will; hence he can neither execute one, nor be offered as a witness to prove the will of another testator.

19Modestinus, Pandects, Book V. Where a son under paternal control, a ward, or a slave draws up a will and seals it, possession of the property mentioned therein cannot be granted to the legatees, even though the testator should be a son who is independent, or a ward who has reached the age of puberty, or a slave who should become free, at the time of his death; for the reason that a will drawn up by one who has no right to do so is void.

20Ulpianus, On Sabinus, Book I. Where an heir is appointed by will, he cannot be a witness to it. The contrary rule applies to a legatee, and to one who is appointed guardian, for such persons can act as witnesses, if no other impediment exists; as, for instance, where the party had not arrived at puberty, or was under the control of the testator. 1The term “control” not only applies to children who are in the power of their father, but also to one whom the testator has redeemed from the hands of the enemy, although it is established that such a person shall not be a slave, but shall merely be kept under restraint until he has paid the amount of his ransom. 2Ad Dig. 28,1,20,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 542, Note 10.On the other hand, the question may be asked whether a father can be offered as a witness to a will by which his son disposes of his peculium castrense. And Marcellus states in the Tenth Book of the Digest that he can be a witness, and that his brother can also be one. 3Moreover, what we have stated with reference to the testimony of those who are under the control of a testator being prevented from witnessing a will is applicable to all cases where any kind of business is transacted by means of which property is acquired. 4Nor can an insane person be offered as a witness, as he is not of sound mind. If, however, he has lucid intervals, he can testify during their continuance; a will which he has executed before he became insane will be valid; and he should be entitled to the possession of property in accordance with the terms of the will. 5Ad Dig. 28,1,20,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 542, Note 15.I think that anyone who has been convicted of embezzlement cannot be a witness to a will, since his testimony in court is forbidden. 6A woman cannot act as a witness to a will, although she can be a witness in court; as is established by the Lex Julia de Adulteriis, which prohibits a witness who has been convicted of adultery from testifying or making a deposition. 7A slave cannot participate in the formalities attaching to the execution of a will, and very properly, as he has no share whatever in the rights conferred by the Civil Law, or indeed in those granted by the Prætorian Edict. 8The ancient authorities thought that those who are summoned to take part in the solemn formalities of a will should remain until the last attestation had been completed. 9We do not, however, require that a witness should understand the language of the testator; for the Divine Marcus, in a Rescript addressed to Didius Julianus, stated this with reference to a witness who was ignorant of the Latin language; for it is sufficient if the witness perceives by his senses for what purpose he was summoned. 10Ad Dig. 28,1,20,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 548, Note 2.Where the witnesses are detained against their consent, the authorities hold that the will is not valid.

21The Same, On Sabinus, Book II. The name of the heir should be plainly spoken, in order that it may be heard. The testator is, therefore, permitted either to mention the heirs by name, or to write down their names, but if he mentions them he must do so distinctly. What does the term “distinctly” mean? It does not mean that this shall be done publicly, but in such a way that the names may be heard, not, indeed, by everyone, but by the witnesses to the will; and where there are several witnesses, it will be sufficient for them to be heard by the number specified by law. 1Where the testator wishes to change his will, it is established that everything must be done over again from the beginning. The question, however, arises whether, after the legal formalities have been complied with, he can explain anything which may happen to be obscure in his will, either in words or in writing. As, for instance, where he makes a bequest of Stichus, when he has several slaves of that name, and did not mention which one he had reference to; or where he makes a bequest to Titius, when he has several friends who are called Titius; or where he has made a mistake either in the name, the title or the surname of a party, but did not make a mistake with reference to the article bequeathed; can he afterwards state what he meant? I think that he can, for he does not give anything by doing so, but merely points out what was given. But if he should subsequently append a note to a legacy, either orally or in writing, or add a certain sum, or insert the name of the legatee which he had not yet filled out, or mention the kind of money with which the legacy is to be paid, will he act in accordance with law? I think that even the kind of money to be paid can afterwards be designated, for where he has not done so, it will be necessary to determine this with reference to the bequest, either from documents drawn up at the same time, or in accordance with the custom of his family or of the province. 2It is held in the case of wills, where witnesses are asked to be present for the purpose of attesting the same, that if they have been summoned for any other purpose, they will not be competent; and it must be understood in this instance that even though they may have been requested to appear, or were collected for some other purpose, and, before they act as witnesses, they are informed that they are to be employed for that purpose, they can legally act as such. 3The will must be drawn up with reference to itself alone, and this is done where nothing foreign to the purpose of the instrument is introduced; but where any act connected with the will is performed, the validity of the latter will not be affected.

22The Same, On the Edict, Book XXXIX. In order to obtain at the same time the legal number of witnesses, the father, the son, and any other persons who are under his control may be called. 1In order to establish the condition of the witnesses, we should consider the time when they attached their seals to the will, and not the time when the testator died. Therefore, if at the time they attached their seals they were competent to do so, the validity of the will can not be questioned if anything should afterwards happen to the witnesses. 2If I take a ring from the testator himself, and make use of it to seal his will, the latter will be valid, just as if I had sealed it with another ring. 3If the seals should be broken by the testator himself, the will will not be held to have been sealed. 4Where one of the witnesses did not sign his name, but, nevertheless, attached his seal, it is the same as if he had not been present; and if he signed it (as many do) without attaching his seal, we hold that the same rule applies. 5Can we only attach our seals by means of a ring, or if we do not use a ring can we do so with any other article, as men frequently do? The better opinion is that the seal can only be impressed by means of a ring, for it must have a form and be engraved with a device. 6There is no doubt that a will can be sealed at night. 7A will must be considered to have been sealed when the seals have been impressed upon the cloth in which it is wrapped.

23The Same, Disputations, Book IV. If the seals of a will have been broken by the testator, and it has been sealed a second time by himself and seven witnesses, it will not be void, but will be valid by both the Prætorian and the Civil Law.

24Ad Dig. 28,1,24Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 544, Note 4.Florentinus, Institutes, Book X. Anyone can make several copies of the same will, and indeed this is sometimes necessary; for example, where the testator is about to take a sea voyage, and desires to leave the will behind him, and take a copy with him.

25Javolenus, On the Last Works of Labeo, Book V. Where anyone who makes a will after having mentioned the first heirs loses the power of speech before he can mention the second ones, the better opinion is that he has begun to make a will rather than that he has made it; which view Verus stated, in the First Book of the Digest, was entertained by Servius; therefore the first heirs appointed cannot take under such a will. Hence Labeo thinks that this is correct, if it should be established that the testator who executed the will intended to appoint several heirs. I do not think that Servius intended anything else.

26Gaius, On the Provincial Edict, Book XXII. Whenever anyone is declared by law to be incapable of becoming a witness, this means that his testimony cannot be received, and, moreover (as certain authorities hold), that no testimony can be introduced in his behalf.

27Celsus, Digest, Book XV. “Domitius Labeo to his friend Celsus, Greeting. I ask whether he is to be included in the number of witnesses who, after having been requested to write a will, attached his seal to the same after he had done so.” “Jubentius Celsus, to his friend, Labeo, Greeting. I either do not understand the point with reference to which you desire to consult me, or your request for advice is certainly foolish, for it is ridiculous to doubt whether such a person can act as a witness, since he himself drew up the will.”

28Modestinus, Rules, Book IX. A slave, even though he belongs to another person, is not prohibited from drawing up a will by order of the testator.

29Paulus, Opinions, Book XIV. Nothing can be claimed under a written instrument which was drawn up as a will, where it was not legally completed, not even where something has been left by way of trust. 1By the following words which the head of a household added to a written document, namely: “I desire this will to be valid as far as possible”; he seems to have intended that every bequest that he left by said document should be valid, even though he might die intestate.

30The Same, Opinions, Book III. It is proper for every witness to a will to sign his name in his own hand, as well as that of the party to whose will he attached his seal.

31The Same, Opinions, Book V. The Treasury cannot seize the property of anyone who publicly announces that he is going to make the Emperor his heir.