Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book XLV. The Divine Julius Cæsar was the first who granted to soldiers free power to make a will, but this concession was only temporary. The first after him to confer this power was the Divine Titus, and then Domitianus. The Divine Nerva subsequently conceded the greatest indulgence to soldiers in this respect, and Trajanus followed his example. From that time forward there was inserted in the Imperial Edicts the following provision: “It has come to my notice that wills executed by our fellow-soldiers have been frequently presented which would be the subject of dispute if the laws were strictly applied and enforced; so, in accordance with the benevolent promptings of my mind with reference to my excellent and most faithful fellow-soldiers, I have thought that indulgence should be extended to their inexperience, so that no matter in what way they may draw up their wills, they shall be confirmed. Let them, therefore, draw them up in whatever form they desire, in the best way that they can, and the mere wish of the testators will be sufficient for the distribution of their estates.” 1The term “soldier” is understood to have been derived from militia, that is to say duritia, the hardships which soldiers endure for us, or from the word “multitude,” or from the term “evil,” from which soldiers are accustomed to protect us; or from the one thousand men from the Greek tanma, for the Greeks designate a thousand men assembled together by that term, each one being called the thousandth of the entire number, whence the leader himself is styled ciliarcou. The word exercitus (army) derives its name from exercise.

2 Gaius, On the Provincial Edict, Book XV. The Prætor issued a separate Edict with reference to the wills of soldiers, for the reason that he was well aware that, according to the Constitutions of the Emperors, peculiar and extraordinary rights have been established with reference to their wills.

3 Ulpianus, On Sabinus, Book II. If a soldier who intended to make his will in compliance with the ordinary law should die before having it witnessed: Pomponius is in doubt as to its validity. But why should he not approve of a will thus made by a soldier without observing the ordinary formalities? Is it because he thinks that a soldier who intended to execute his will, in accordance with the ordinary law, by doing so renounced his military privilege? Can it be believed that anyone would select a certain way to make his will for the purpose of rendering it void; and is it not more probable that he would prefer to make use of both ways in the execution of his will, on account of the accidents to which he was exposed; just as civilians, when they draw up their wills, are accustomed to add that they desire that they shall be valid at least as codicils; and in this instance would anyone say that if the will is imperfect it should stand as a codicil? The Divine Marcus stated in a Rescript an opinion which coincides with our own.

4 The Same, On Sabinus, Book I. It is established that a person who is deaf or dumb can make a military will while in the army, and before having been discharged on account of his affliction.

5 The Same, On Sabinus, Book IV. Soldiers can make a substitution for their heirs, but only with reference to such property as they have acquired by their wills.

6 The Same, On Sabinus, Book V. Where a soldier appoints a sole heir to a certain tract of land, he is held to have died intestate so far as the remainder of his patrimony is concerned. For a soldier can die partly testate and partly intestate.

7 The Same, On Sabinus, Book IX. Where a will is executed in accordance with military law, even though the testator may be ignorant that his wife was pregnant, or, being aware of the fact, he does this with the intention that if a child should be born to him, it shall be disinherited, the will is not broken.

8 Marcellus, Digest, Book X. The same rule applies where a soldier arrogates a son, or his grandson obtains the succession in the place of his son.

9 Ulpianus, On Sabinus, Book IX. The same rule must be said to apply where a soldier who had a son born to him in his lifetime preferred to die without making any alteration to his will; for, in accordance with military law, he is held to have renewed his will. 1This was stated in a Rescript by the Divine Pius with reference to a man who executed a will while he was a civilian, and afterwards became a soldier; for this will was valid by military law, if such was the desire of the soldier.

10 The Same, On Sabinus, Book IV. Anyone who is in the power of the enemy cannot make a will, even in compliance with military law.

11 The Same, On the Edict, Book XLV. Those who are condemned to death for some military crime can only make a will disposing of property obtained during their service; but the question arises, can they do so by military, or by civil law? The better opinion is, that they can make a will in accordance with military law; for, as the right of testation is conferred upon a man because of his being a soldier, it must be held that it follows that he can exercise it by reason of his military privilege. This should, however, be understood to apply to cases where he has not violated his oath. 1Where a soldier is in doubt whether or not he is his own master, and makes a will, he is in such a position that it will be valid in any event. For if he should execute a will, being uncertain as to whether or not his father is living, it will be valid. 2Where a son under paternal control, not knowing that his father is dead, makes a will disposing of his castrense peculium while in the service, the estate of his father will not belong to the heir, but only such property as the son has acquired during the time when he was a soldier.

12 Papinianus, Opinions, Book VI. Soldiers only leave by will such property as they own.

13 Ulpianus, On the Edict, Book XLV. The same rule applies where a soldier has determined to change his will, not because he desired to deprive the heir he appointed of his property acquired in the service, but in order to make a will disposing of his father’s estate, and to appoint another heir. 1If, however, the soldier should die after having been discharged, his entire estate, including that derived from his father, will belong to the heir of the peculium castrense; as Marcellus says in the Eleventh Book of the Digest. For one who is no longer in the army can not dispose of only a portion of his property by will. 2Persons who have been deported, and almost all those who have not testamentary capacity, can be appointed heirs by a soldier. If, however, he should appoint as his heir someone who had become a penal slave, the appointment will not be valid. But if, at the time of the death of the testator, the heir should be in the possession of his citizenship, the appointment will begin to take effect, just as if the estate had just been bequeathed. And, in general, it may be said, in every instance in which a soldier appoints his heir, that the appointment will begin to acquire validity, if at the time of the death of the testator, the party was in such a condition that he could be appointed the heir of a soldier. 3Where a soldier appoints as his heir his own slave, whom he believed to be free, without granting him his freedom, the appointment will not be valid. 4Where a soldier by his will granted freedom to his slave, and left him his estate in trust, charging the first heir and the substitute with its delivery, even though the first heir and the substitute should die before entering upon the estate, the deceased will not die intestate, as our Emperor and the Divine Severus stated in a Rescript; but it should be held that the case resembled one where his freedom and the estate had been directly given to the said slave; and it cannot be denied that it was the intention of the testator that he should obtain both.

14 Marcianus, Trusts, Book IV. A discussion arose as to whether the same indulgence should be granted with reference to the wills of civilians. It was established that in this instance there was a distinction, for if the parties should die during the lifetime of the testator, and he be aware of the fact, there was no necessity for anything new, but where he was not aware of it, relief must, by all means, be granted after his death.

15 Ulpianus, On the Edict, Book XLV. A soldier cannot appoint more than one necessary heir, where it is evident that this is done in order to defraud his creditors. 1Just as a soldier can dispose of his estate by merely stating his wish, so he can take it away. Hence, if he cancels or tears his will, the latter will be of no force or effect. If, however, he should cancel his will, and afterwards wish it to be valid, it will be valid through this last expression of his desire. Therefore, where a soldier, having erased his will, afterwards sealed it with his ring, the court having jurisdiction of the case must take into consideration the intention of the testator in doing this; for if it should be proved that he repented of changing his mind, the will will be understood to have been renewed. If, however, he has done this with the intention that what was written in the will should not be read, he will be held to have done so for the purpose of cancelling his will. 2The Divine Pius stated in a Rescript that a will executed by a soldier before entering the army is valid by military law, provided the testator died in the service, and did not change his mind afterwards. 3Where anyone who draws up the will of a soldier inserts his own name as heir therein, he will not be released from the penalty prescribed by the Decree of the Senate. 4A soldier can appoint an heir for a certain time, and another after that time, or he can appoint one on the fulfillment of a certain condition, or another after the condition has been complied with. 5He can also, by military law, execute a will not only for himself but also for his son, and he can do this for his son alone, even though he does not execute one for himself, and such a will is valid if the father should die in the service, or within a year after his discharge. 6Papinianus, in the Fourteenth Book of Questions, states that application for the possession of the property of an estate cannot be made after the time prescribed by the Edict, because this provision is a general one.

16 Paulus, On the Edict, Book XLIII. If a soldier should bequeath a dotal estate to anyone, the legacy will not be valid, according to the Lex Julia.

17 Gaius, On the Provincial Edict, Book XV. Where a soldier appoints heirs to certain property, as for instance, one to certain property in a city, another to certain lands in the country, and still another to other property, the appointments will be valid, for it will be considered just as if he had appointed the said heirs without assigning them their shares in the estate, and that he had distributed all his property through making his bequest to each one by preference. 1Julian also says that where a testator appoints one heir to his property obtained while a soldier, and another the heir to the remainder of the estate, this is to be understood to be the disposal of two distinct estates belonging, as it were, to two different men, so that that heir alone who was appointed for the property obtained while in the service shall be liable for debts incurred by the soldier while in the army, and he alone who was appointed heir to the remainder of the estate shall be bound to pay any debts contracted outside of the service. In this instance it seems to be proper to hold that where anything is due to the soldier from any source, it will be due by operation of law to either the former or the latter heir. If, however, either of the shares of the property should not be sufficient to pay the debts for which it is liable, and for this reason the party appointed heir to this share does not accept it, the other who did accept must be compelled either to take up the defence of the entire estate, or to pay the creditors in full. 2Where, in the same will, a soldier appoints a certain person his heir, and afterwards disinherits him, he will be held to have been deprived of the estate, while by the will of a civilian, an estate cannot be taken away by a mere disinheritance of this kind. 3If a father should be appointed heir to the castrense peculium by his son under paternal control, who is serving in the army, and he fails to take advantage of the will, and has some of the property in possession, or fraudulently relinquished it to avoid having possession, an action will be granted to the legatee against him. 4If a soldier should make a will while he is in the army, and a codicil after his term of service has expired, and he dies within a year of his discharge, it is held by many authorities that the codicil should be considered to have been made in accordance with the rule of the Civil Law; because it was not executed by a soldier, and it should not be held that it is confirmed by the will. Therefore there is no room for the application of the Falcidian Law in the case of any legacies bequeathed by the will, but this law is applicable to such legacies as are included in the codicil.

18 Tryphoninus, Disputations, Book XVIII. Where, however, the legacies granted by the will, as well as those granted by the codicil, taken together, amount to more than three-fourths of the estate, the question arises as to what extent should those to which the Falcidian Law applies be diminished. It would be most convenient, however, for it to be decided that the legacies which the soldier bequeathed by his will, having been fully paid out of the assets of the entire estate, the remainder should be divided between the heirs and those to whom legacies were given by the codicil, in the proportion of three-fourths to the former, and one-fourth to the latter. 1But what if the legacies bequeathed by the will should absorb the entire amount of the estate, would those to whom property was left by the codicil be entitled to anything, or would they not? Since, if the soldier had made these bequests while still in the service, all would be liable to contribution, and that portion which he bequeathed in excess of his estate must be deducted pro rata from all the legacies, the same must also be done in this instance. Then, the amount of the legacies bequeathed by the codicil having been ascertained from the sum which is found to be due (where the legacies belong to the same class) the heir can then deduct his fourth from those legacies alone which were bequeathed by the codicil. 2If, however, all the legacies had been included in the computation, and what remains in the hands of the heir should not be sufficient to make up the fourth of his share of said legacies, whatever is lacking must be taken from those legacies alone which were bequeathed by the codicil.

19 Ulpianus, Disputations, Book IV. The question arose, where a soldier having already made one will makes a second, and in the latter charges his heir as trustee to carry out the provisions of the first, what would be the rule of law in this case? I said, “A soldier is permitted to make several wills, but whether he makes them all at once or separately, they will be valid only where the testator expressly stated that he desired this to be the case; nor will the first will be annulled by the last, as he can appoint an heir to a portion of his estate, that is to say, he can die partly testate and partly intestate. Again, if he had, in the first place, made a codicil, he can arrange it by providing in the will which follows that the codicil can have the effect of an appointment, and can render a direct appointment effective which was formerly precarious; hence, I will say that, in the case stated, if the soldier had intended that the will first executed should be valid, what he provided must stand, and the consequence is that there will be two wills. However, where the execution of the first will is committed to the heir as trustee, it is evident that he did not intend that it should be valid by operation of law, but rather through the acts of the trustee, that is to say, that he has converted the effect of the first will into that of a trust and a codicil. 1The question, however, arises, whether the entire will is converted into a codicil, that is to say, whether the appointment of the heir is included, or in fact only the legacies, the trusts, and the grants of freedom. It seems to me that not only the other matters, with the exception of the appointment of the heir, but also the appointment itself is included in the trust, unless it is proved that the intention of the testator was otherwise. 2Where anyone has been appointed by a soldier heir for a certain time, and another person an heir for the ensuing time, the question arises whether the last heir should be responsible for the distribution of the legacies not distributed by the first one. I think that this obligation does not rest upon him, unless it is established that the soldier’s intention was different.

20 Julianus, Digest, Book XXVII. A military tribune made a codicil while in camp, after his successor arrived, and then died. As he ceased to occupy the position of a soldier after his successor had arrived in the camp, his codicil must be considered as having been executed under the common law governing Roman citizens. 1Where anyone, after executing a will, enters the military service, this will is also considered that of a soldier, under certain circumstances; as, for instance, if he opened the will and read it, and sealed it a second time with his seal; and still more so, if he erased part of it, defaced it, or made any additions to, or corrections in it. If, however, none of these things took place, his will will not enjoy any of the privileges attaching to the testament of a soldier.

21 Africanus, Questions, Book IV. The decision that a will executed during military service is also valid for a year after the discharge of the testator from the army seems by its terms to show that this privilege can only be enjoyed by those who are regularly discharged. Hence, neither prefects, tribunes, or other officers who cease to serve when their successors arrive will be entitled to it.

22 Marcianus, Institutes, Book IV. Where a son under paternal control, who is serving as a soldier, loses his civil rights, or is emancipated, or is given in adoption by his father, his will will be valid, just as if a new one had been executed.

23 Tertullianus, On the Castrense Peculium. The same rule applies where the head of a household, while a soldier, only disposes of his peculium castrense by will, and subsequently gives himself to be arrogated. If, however, he should do this after having been already discharged, his testament will not be valid.

24 Florentinus, Institutes, Book X. The Divine Trajanus stated in a Rescript addressed to Statilius Severus that: “The privilege accorded to persons serving in the army which imparts validity to their wills, no matter how they have been executed, must be understood as follows, namely, in the first place, it must be established that the will was executed, which can be done without committing it to writing, which also applies to others who are not soldiers. Therefore, where a soldier, with reference to whose estate application has been made to you, has called together persons to witness his will, and declared in their presence whom he desired to be his heir, and to what slave he wished to grant freedom, it may be held that he, in this way, made a will without reducing it to writing, and his wishes must be carried into effect. If, however (as frequently happens), he should say to someone: “I constitute you my heir, or I leave you my property”; this must not be regarded as a will. Nor does it make any more difference to others than those to whom this privilege is granted, that such a disposition of property should not be allowed; for otherwise, it would not be difficult for witnesses to be found after the death of a soldier, who would assert that they had heard the latter say that he left his property to those whom they desired to benefit, and in this way the wills of soldiers would be overthrown.”

25 Marcellus, Opinions. Titius, before he became a legionary tribune, made a will, and after obtaining the office died, without having altered it. I ask whether such a will should be considered a military one. Marcellus answers, The will which he made before becoming tribune would be subject to the rules of the Common Law, unless after it had been executed, it is proved that the testator declared that he wished it to be valid. For, by the Imperial Constitutions, not the wills of soldiers, but wills made by soldiers while in the army, are confirmed. It is evident, however, that a soldier should be understood to have made a will, who declares in any way whatsoever that he desires that a previous will which he had executed should be valid.

26 Macer, Military Wills, Book II. The wills of soldiers who have been dishonorably discharged immediately cease to be valid by military law; but the privilege is extended for the term of a year to the wills of those who have obtained an honorable discharge, or one for some good reason. The right to dispose of castrense peculium by will, which is granted to sons under paternal control, serving in the army, is not conceded to such as are dishonorably discharged, because this privilege is only bestowed by way of recompense upon others who deserve it.

27 Papinianus, Opinions, Book VI. A centurion, by a second will, appointed his posthumous children his heirs, but did not appoint any substitutes for them; and, as none were mentioned, stated that reference should be had to his first will. It was held that everything included in the second will was void, except the appointment of the posthumous heirs; unless, after having referred to his first will, he expressly confirmed all that was contained in the second.

28 Ulpianus, On Sabinus, Book XXXVI. Where a son under paternal control died while in the army, after having appointed as his heir his son, who had not yet reached the age of puberty, and also appointed a substitute as well as guardians for him while under the control of his grandfather, the Divine Brothers stated in a Rescript that the substitution was valid, but that the appointment of the guardians was not, for the reason that a soldier in disposing of his estate can make any substitution that he desires, but he cannot do anything injuriously affecting the rights of another.

29 Marcellus, Digest, Book X. If an heir appointed by a soldier should voluntarily accept an estate, and, having been requested to do so, surrenders the whole of it, the rights of action arising out of the Trebellian Decree of the Senate are transferred. 1Where a soldier by his will manumits a slave whose freedom is not allowed to be granted by the Lex Ælia Sentia, or any other law, his act is void. 2The Edict of the Prætor, by which appointed heirs as well as legatees are excused from taking an oath, is also applicable to the wills of soldiers, just as in the case of trusts. The same rule applies where a condition is dishonorable. 3It is established that prætorian possession of the share of the estate to which he was entitled should be granted to a father who had personally emancipated his son, this being done in opposition to the provisions of the latter’s will, except with reference to such property as the son had acquired while in the service, and which he was free to dispose of testamentarily.

30 Paulus, Questions, Book VII. For the Divine Pius Antoninus stated in a Rescript that prætorian possession of the estate of a son serving as a soldier should not be granted in violation of the will of the latter, so far as property obtained while in the army was concerned.

31 Marcellus, Digest, Book XIII. Where a soldier bequeathed a slave to Titius and Seius, and while Seius was deliberating as to whether he would accept the bequest or not, Titius manumitted the slave, and Seius afterwards declined the legacy, I say that the slave should be free, for the reason that if an heir manumits a slave bequeathed to anyone, and the legatee afterwards rejects the bequest, the slave will become free.

32 Modestinus, Rules, Book IX. Where the estate of a soldier is not entered upon in accordance with the evident desire of the testator, the heirs will not be entitled to his property acquired while in the service.

33 Tertyllianus, On the Castrense Peculium. Where a son under paternal control, while in the army, makes a will according to military custom, and subsequently, after the death of his father, a posthumous child is born to him, his will is broken. If, however, he is still of the same mind, and wishes the said will to continue to be valid, he can render it so, just as if he had made another; provided he was serving as a soldier up to the time when the posthumous child was born. 1Where, however, a son under paternal control, who is serving as a soldier, makes a will, and then afterwards, during his lifetime, and during that of his grandfather, a posthumous child is born to him, his will will not be broken, because the said child will not come under his control, and is not held to be born a proper heir. Nor indeed, can this posthumous grandchild, since it was born during the lifetime of the son, become at once a proper heir to its grandfather, and therefore the will of the grandfather is not broken; as, although it at once comes under the control of its grandfather, the son will, nevertheless, be entitled to priority. 2It follows that if a son under paternal control makes a will while serving as a soldier, and through mistake, and not because he wished to disinherit him, omits to mention a posthumous child; and if the said posthumous child should be born after the death of his grandfather, but during the lifetime of the son, that is to say his own father, his testament will certainly be broken. If, however, it should be born after its father has become a civilian, the validity of the testament which has been broken will not be restored. But if it should be born while its father is still in the army, then, if the latter should desire the will to be valid, it will become so, just as if it had been executed a second time. 3If, however, a posthumous child should be born during the lifetime of its grandfather, this will not at once break the will of the father, but only where it survives its grandfather, while its father is still living, as it now for the first time becomes the heir of the latter. For this is the case because it never can break two wills at once, that is to say, those of its father and its grandfather.

34 Paulus, Questions, Book XIV. The Divine Hadrian stated in a Rescript that the will of a soldier who preferred to die rather than to suffer pain, or the annoyances of life, was valid, and that his estate could be claimed by those entitled to it by law if he died intestate. 1A soldier who had been discharged began a will within the year but was unable to finish it. It can be said that, by this act, the will which he executed while in the army was rendered void, if it was drawn up in accordance with military law; otherwise it would not be legally rescinded if it was valid at Common Law. 2This distinction does not apply to the will of a soldier executed while in the service, for in whatever way he may make a will, it is rendered inoperative by a following one, as the wish of a soldier, however expressed, is a testament.

35 The Same, Questions, Book XIX. Where a soldier leaves an imperfect will, the instrument when offered has the effect of a perfect one, for the testament of a soldier is perfected by the mere statement of his wishes. Where anyone makes several wills on different days, he is considered to make his will frequently.

36 The Same, Opinions, Book VI. An estate is also held to be legally bequeathed where a codicil to a will is executed; hence, if the testator bequeaths half his estate by a codicil, the heir, appointed to all of it by the will, will be entitled to half, and any legacies left by the will must be divided in common, when they are paid. 1A soldier, after having appointed different heirs, some to what he obtained in the service and others to property otherwise acquired, subsequently designated still other heirs for his property obtained in the service. He is held to have taken from the first will whatever he bestowed by the second, but he is not considered to have changed his first will, even though but one heir was appointed thereby. 2A soldier, when drawing up his last will, not being aware that his wife was pregnant, made no mention of the unborn child. A daughter having been born after his death, the will appeared to have been broken, and the legacies not to be due. If, however, in the meantime, the appointed heir should have paid the legacies, prætorian actions would be granted the daughter to recover the property, on account of this unexpected event, and the appointed heir, since he was a bona fide possessor, will not be obliged to make good anything which he can not recover from the estate. 3A discharged soldier, at the time of his death, wished that a will which he had executed in accordance with the Common Law during his term of service should be void, and preferred to die intestate. It was decided that the appointments of heirs and the substitutions for them would remain unaltered, but that those who claimed legacies under the will would be barred by an exception on the ground of bad faith, in accordance with the Common Law, and that the force of this exception would be regulated according to the standing of the persons who made the demand; otherwise, all other things being equal, the condition of the possessor is preferable. 4A soldier having made a will according to the Common Law, subsequently made one in accordance with military law disposing of all his property a year after his discharge from the service. It was held that the force of the first will was destroyed and could not be restored.

37 Paulus, Questions, Book VII. A soldier, who was a freedman, appointed two heirs by his will, and one of them having refused to accept, the testator was held to have died intestate with reference to that particular share, for the reason that a soldier can die partly testate, and prætorian possession can be acquired by a patron ab intestato; for unless the intention of the deceased was proved to have been that if one of the heirs should reject his portion, the entire estate should go to the other heir.

38 The Same, Questions, Book VIII. When it is said that if a soldier should die within the year after his discharge, his will, which he executed in accordance with military law, is valid; this is true even if the condition of his appointment is to be fulfilled after the lapse of the year, provided that he dies within twelve months. Therefore, if he should appoint a substitute for his son who was his heir, it will make no difference when the son dies, for it is sufficient if his father should die within the year. 1A soldier executed a will, and afterwards, having been discharged for no dishonorable reason, he again enlisted in another corps of soldiers; the question arose whether the will which he had executed while in the service, would be valid. I ask whether he executed it in accordance with military law, or the Common Law. If he executed it according to the Common Law, there is no doubt that it would be valid; but if he made it as a soldier, I thought it proper to inquire when he enlisted the second time, after he was discharged, whether within the year, or afterwards. I ascertained that he enlisted within the year, and, therefore, as his will was still valid in accordance with military law, and he could make another under the same law, would his will be valid after the year had elapsed, if he should die? I have some doubt on this point, for the reason that his other term of service was more recent. It is, however, better to hold that the will is valid, the two terms of service being, so to speak, united. I do not allude to him who, having enlisted a second time, stated that he wished his will to be valid; for in this instance, he made it, as it were, during his second term of service, in the same way as where a civilian makes one and afterwards becomes a soldier.

39 The Same, Questions, Book IX. Where a son under paternal control, while serving in the army, was captured and died in the hands of the enemy, we say that the Cornelian Law is also applicable to his will. We may ask, however, whether his father died before him at home, and if a grandson was born to him by the said son, whether the will of the father would be broken, in like manner. It must be held that the will will not be broken, for the reason that he is considered to have died at the very time that he was taken prisoner.

40 The Same, Opinions, Book XI. Lucius Titius, a soldier, dictated his will to his secretary to be made from notes, and before it was fully written out he died. I ask whether this dictation can be valid. I answered, that it is conceded to soldiers to make their wills in whatever way they desire, and in whatever way they can, provided this is done so that it can be established by lawful evidence. 1It was also held that where a slave was entitled to a legacy (although under a condition), by a will drawn up in accordance with military law, he could also demand his freedom. 2An opinion was likewise given in the following case. Lucius Titius, a soldier, stated in his will: “Let Pamphila be the heir to my entire estate”, and then by another clause, left the same bequest to Sepronius, one of his comrades, and charged him to manumit the said slave. I ask whether Pamphila would be his heir, just as if she had received her freedom directly at the hands of the testator? The answer was, that it should be understood that the soldier did not know, at the time when he appointed his female slave his heir, that she would obtain her freedom by virtue of her appointment; and therefore he afterwards had no reason to request his comrade to manumit her, since she had become free and his heir under the first clause, and as the bequest was of no force or effect, the intention of the testator was not interfered with.

41 Tryphoninus, Disputations, Book XVIII. A soldier can appoint an heir as follows: “As long as Titius lives let him be my heir, and after his death, let Septicius be my heir”. If, however, he should say: “Let Titius be my heir for ten years”, without appointing any substitute, he will be intestate after the lapse of ten years; and, for the reason we have already stated, as a soldier can appoint an heir from a certain time, and up to a certain time, the result is that before the time arrives when the heir appointed can be admitted to the succession it will become intestate; and since a soldier is permitted to bequeath a portion of his property, so also, by the same privilege, he can remain intestate for a period of considerable extent. 1A woman who is suspected of being dissolute cannot take anything under the will of a soldier, as the Divine Hadrian stated in a Rescript. 2A soldier cannot appoint a guardian for a minor who is under the control of another. 3If a soldier should disinherit his son, or, knowing him to be his son, should pass him over in silence, the question arises whether he can charge a substitute with the payment of a legacy. I held that he could not do so, even though he left an ample legacy to the disinherited son. 4A soldier can substitute anyone for an emancipated son; the former, however, can only exercise his right with reference to property which came from the father to the son, and so far as any which he already possessed, or subsequently acquired, is concerned. For if, during the lifetime of his son, or while the grandfather was still living, he made the substitution, no one can say that the estate obtained from the grandfather will belong to the substitute. 5Where the estate of a soldier was not entered upon, the question arises whether the substitution which he made for a minor will be valid. The result is, that is must be considered valid, because a soldier is allowed to make a will for his son, even though he may not make one for himself.

42 Ulpianus, On the Edict, Book XLV. Anyone can make a will by military law, from the very day he entered the service, but he cannot do this before; hence those who are not yet actually enrolled in the army, even although they may have been drafted and travel with it at the public expense, are not yet considered soldiers, as to be such they must be included in the ranks.

43 Papinianus, Opinions, Book VI. A son under paternal control, who belongs to the Equestrian Order and is enrolled in the retinue of the Emperor, as soon as he is ordered to join the army, can make a will disposing of his castrense peculium.

44 Ulpianus, On the Edict, Book XLV. The Rescripts of the Emperors disclose that if anyone belonging to the class whose members are not allowed to make a will in accordance with military law happens to be in the enemy’s country, and dies there, he can make a will in any way that he wishes, and in any way that he can, whether he is the Governor of the province, or some one else who has no right of testation under military law.