De his quae in testamento delentur inducuntur vel inscribuntur
(Concerning erasures, cancellations, or additions to a will.)
1 Ulpianus libro quinto decimo ad Sabinum. Quae in testamento legi possunt, ea inconsulto deleta et inducta nihilo minus valent, consulto non valent: id vero quod non iussu domini scriptum inductum deletumve est, pro nihilo est. ‘legi’ autem sic accipiendum non intellegi, sed oculis perspici quae sunt scripta: ceterum si extrinsecus intelleguntur, non videbuntur legi posse. sufficit autem, si legibilia sint inconsulto deleta sive ab ipso sive ab alio, sed nolentibus. ‘inducta’ accipiendum est et si perducta sint. 1Quod igitur incaute factum est, pro non facto est, si legi potuit: et ideo, etsi novissime, ut solet, testamento fuerit adscriptum: ‘lituras inductiones superductiones ipse feci’, non videbitur referri ad ea quae inconsulto contigerunt. proinde et si inconsulto superscripsit induxisse se, manebunt et si ademit, non erunt adempta. 2Sed si legi non possunt quae inconsulto delata sunt, dicendum est non deberi, sed hoc ita demum, si ante consummationem testamenti factum est. 3Sed consulto quidem deleta exceptione petentes repelluntur, inconsulto vero non repelluntur, sive legi possunt sive non possunt, quoniam, si totum testamentum non exstet, constat valere omnia quae in eo scripta sunt. et si quidem illud concidit testator, denegabuntur actiones, si vero alius invito testatore, non denegabuntur. 4Et hereditatis portio adempta vel tota hereditas, si forte sit substitutus, iure facta videbitur, non quasi adempta, quoniam hereditas semel data adimi facile non potest, sed quasi nec data. 5Si quis codicillos in testamento confirmavit et codicillis aliquid adscripsit, mox delevit ita ut appareat, an debeatur? et Pomponius scribit codicillos deletos non valere.
1 Ulpianus, On Sabinus, Book XV. Where any words have undesignedly been erased or blotted in a will, so that they can still be read, they will, nevertheless, be valid; but this is not the case where it has been done purposely. Where anything has been obliterated or erased without the order of the testator, it is of no effect. The term “read” must be understood to mean not that the sense can be ascertained, but that what has been written can be perceived by the eyes. But where the meaning can be gathered from some other source, the words are not held to be legible. It is sufficient, however, for them to be legible where they have been thoughtlessly erased, either by the testator or by someone else, against his will. The word “blotted” must be understood to signify that the words are obscured. 1Hence, where anything of this kind has been done unintentionally and the writing can be read, it is just as if it had not been done at all. Therefore, if at the end of the will (as is customary) there was written: “I, myself, have made all the erasures, insertions, and changes herein contained”; it is not held that this has reference to anything which may have been erased accidentally; for if a testator should write that he had made the erasures unintentionally, the words will remain, and if he has rendered them illegible, they will not be considered to be so. 2Where words of this kind cannot be read, and have been unintentionally erased, it must be held that nothing is granted by them; provided, however, that this was done before the completion of the will. 3Where, however, words have been intentionally erased, parties claiming under them will be barred by an exception, but if this was done undesignedly, they will not be barred, whether the words can, or cannot be read; since if the entire will does not exist, it is established that everything therein contained will be valid. If indeed the testator mutilated the will, actions will be denied to parties mentioned in it; this, however, will not be the case where the mutilations were made against the consent of the testator. 4When the heir has been deprived of a portion of the estate, or of all of it, and a substitute has been appointed, the act will be held to be legally performed; but the estate will not be considered to have been taken away from the heir, but never to have been given to him, as where an estate has once been granted it is not easily taken away. 5Where anyone confirmed his codicils by a will, and added something in a codicil which he afterwards erased, but which is still legible; will any obligation be incurred by it? Pomponius says that a codicil which has been erased is void.
2 Idem libro quarto disputationum. Cancellaverat quis testamentum vel induxerat et si propter unum heredem facere dixerat: id postea testamentum signatum est. quaerebatur de viribus testamenti deque portione eius, propter quem se cancellasse dixerat. dicebam, si quidem unius ex heredibus nomen induxerit, sine dubio ceteram partem testamenti valere et ipsi soli denegari actiones: sed legata ab eo nominatim relicta debebuntur, si voluntas ea fuit testantis, ut tantum heredis institutio inprobetur. sed si instituti nomen induxit et substituti reliquit, institutus emolumentum hereditatis non habebit. sed si omnia nomina induxerit, ut proponitur, adscripserit autem idcirco se id fecisse, quia unum heredem offensum habuit, multum interesse arbitror, utrum illum tantum fraudare voluit hereditate an vero causa illius totum testamentum infirmare, ut licet unus inductionis causam praebuerit, verum omnibus offuerit. et si quidem soli ei ademptam voluit portionem, ceteris nihil nocebit inductio, non magis quam si volens unum heredem inducere invitus et alium induxerit. quod si putavit totum testamentum delendum ob unius malum meritum, omnibus denegantur actiones: sed an legatariis denegari actio debeat, quaestio est. in ambiguo tamen interpretandum erit et legata deberi et coheredum institutionem non esse infirmandam.
2 The Same, Disputations, Book IV. A certain individual cancelled his will, or erased it, and stated that he did so on account of a certain heir, and this same will was afterwards sealed by witnesses. The question arose with reference to the validity of the instrument, and of that portion of it which the testator said that he had cancelled on account of the said heir. I held that if the testator had erased the name of one of the heirs, the remainder of the will would undoubtedly be valid, and the right of action would be absolutely refused to the said heir; but where he had been specifically charged with legacies they would be due, if it was the intention of the testator that only his appointment as heir should be annulled. If, however, he erased the name of the appointed heir, and retained that of the substituted heir, he who was appointed would not be entitled to anything out of the estate. But if (as in the case stated), the testator should erase all the names, and should allege that he had done so on account of his dislike to a single heir, I think that it makes a great deal of difference whether he merely desired to deprive the said heir of his inheritance, or whether, on his account, he intended to invalidate the entire will; so that, although only one heir was the cause of the erasure, all of them would be prejudiced by it. If, however, he only wished to deprive a single heir of his share of the estate, the erasure will not prejudice the others, any more than if the testator, while intending to erase the name of one heir, had also unintentionally erased that of another. If the testator thought that his entire will should be cancelled because one of the heirs was undeserving, the right of action will be denied to all of them. But it may be asked whether the right of action should also be denied to the legatees. So far as this doubtful question is concerned, it should be held that the legacies are due, and that the appointment of the co-heir is not invalidated.
3 Marcellus libro vicesimo nono digestorum. Proxime in cognitione principis cum quidam heredum nomina induxisset et bona eius ut caduca a fisco vindicarentur, diu de legatis dubitatum est et maxime de his legatis, quae adscripta erant his, quorum institutio fuerat inducta. plerique etiam legatarios excludendos existimabant. quod sane sequendum aiebam, si omnem scripturam testamenti cancellasset: nonnullos opinari id iure ipso peremi quod inductum sit, cetera omnia valitura. quid ergo? non et illud interdum credi potest eum, qui heredum nomina induxerat, satis se consecuturum putasse, ut intestati exitum faceret? sed in re dubia benigniorem interpretationem sequi non minus iustius est quam tutius. sententia imperatoris Antonini Augusti Pudente et Pollione consulibus. ‘Cum Valerius Nepos mutata voluntate et inciderit testamentum suum et heredum nomina induxerit, hereditas eius secundum divi patris mei constitutionem ad eos qui scripti fuerint pertinere non videtur’. et advocatis fisci dixit: ‘Vos habetis iudices vestros’. Vibius Zeno dixit: ‘Rogo, domine imperator, audias me patienter: de legatis quid statues?’ Antoninus Caesar dixit: ‘Videtur tibi voluisse testamentum valere, qui nomina heredum induxit?’ Cornelius Priscianus advocatus Leonis dixit: ‘Nomina heredum tantum induxit’. Calpurnius Longinus advocatus fisci dixit: ‘Non potest ullum testamentum valere, quod heredem non habet’. Priscianus dixit: ‘Manumisit quosdam et legata dedit’. Antoninus Caesar remotis omnibus cum deliberasset et admitti rursus eodem iussisset, dixit: ‘Causa praesens admittere videtur humaniorem interpretationem, ut ea dumtaxat existimemus nepotem irrita esse voluisse, quae induxit’. nomen servi, quem liberum esse iusserat, induxit. Antoninus rescripsit liberum eum nihilo minus fore: quod videlicet favore constituit libertatis.
3 Marcellus, Digest, Book XXIX. A case was recently brought to the attention of the Emperor, where a certain testator erased the names of the heirs, and the estate was claimed as forfeited to the Treasury. There was doubt for a long time as to what disposition should be made of the legacies, and especially of such as had been bequeathed to those whose appointment as heirs had been erased. Several authorities decided that the legatees should be excluded, and I thought that this course should be adopted if the testator had cancelled his entire will; others were of the opinion that what had been erased was abrogated by operation of law, but that all the remainder was valid. What course should then be pursued? Could it not sometimes be held that a testator who had erased the names of his heirs was aware that he would be in the same position as if he had died intestate? Where a point is in doubt, it is not less just than safe to follow the more indulgent interpretation. The following is the decision by the Emperor Antoninus Augustus, during the Consulship of Pudens and Pollio: “Since Valerius Nepos, having changed his mind, has mutilated his will, and erased the names of his heirs, his estate, in accordance with the Constitution of my Divine Father, does not seem to belong to the heirs mentioned therein”. He also stated to the advocates of the Treasury: “You have your own judges”. Vivius Zeno said, “I ask, O Lord Emperor, that you hear me patiently, what do you decide with reference to the legacies?” The Emperor Antoninus replied: “Does it seem to you that a testator who erased the names of his heirs intended that his will should stand?” Cornelius Priscianus, the advocate of Leo, said: “The testator only erased the names of his heirs”. Calpernius Longinus, the Advocate of the Treasury, answered, “No will can be valid in which an heir is not appointed”. Priscianus added, “He manumitted certain slaves, and bequeathed legacies.” The Emperor Antoninus, having caused all the parties to retire while he considered the matter, and having ordered them to be again admitted, said: “The present case seems to admit of an indulgent interpretation, so that we think that the testator Nepos only intended that portion of his will which he erased to be annulled”. He had actually erased the name of a slave whom he had ordered to be free. Antoninus stated in a Rescript that the slave would, nevertheless, be liberated. He decided the question in this way on account of the favor conceded to freedom.
4 Papinianus libro sexto responsorum. Pluribus tabulis eodem exemplo scriptis unius testamenti voluntatem eodem tempore dominus sollemniter complevit. si quasdam tabulas in publico depositas abstulit atque delevit, quae iure gesta sunt, praesertim cum ex ceteris tabulis quas non abstulit res gesta declaretur, non constituentur irrita. Paulus notat: sed si, ut intestatus moreretur, incidit tabulas et hoc adprobaverint hi qui ab intestato venire desiderant, scriptis avocabitur hereditas.
4 Papinianus, Opinions, Book VII. A testator solemnly indicated his wishes in a will, several copies of which were made at the same time; and he afterwards removed and erased some of these which had been deposited in a public place. Whatever provisions were legally made by said will, and which could be established by the other copies of the same which the testator did not remove, were not held to have been annulled. Paulus states that if the testator defaced the will in order that he might die intestate, and if those who desired to inherit ab intestato were able to prove this, the heirs mentioned in the will would be deprived of the property.