De his quae pro non scriptis habentur
(Considering Testamentary Provisions Which Are Considered as Not Having Been Written.)
1 Iulianus libro septuagesimo octavo digestorum. Si quis hereditatem vel legatum sibi adscripserit, quaeritur, an hereditas vel legatum pro non scripto habeatur. et quid, si substitutum habeat huiusmodi institutio? respondit: pars hereditatis, de qua me consuluisti, ad substitutum pertinet: nam senatus cum poenas legis Corneliae constitueret adversus eum, qui sibi hereditatem vel legatum scripsisset, eodem modo improbasse videtur, quo improbatae sunt illae: ‘qua ex parte me Titius heredem scriptum in tabulis suis recitaverit, ex ea parte heres esto’, ut perinde haberentur, ac si insertae testamento non fuissent.
1 Julianus, Digest, Book LXXVIII. Where anyone has been asked to write the bequest of an estate or a legacy in a will to himself, the question arises whether the said bequest of the estate or the legacy shall be considered as not having been written; and also whether under an appointment made in this way, an heir can have a substitute. The answer was that the portion of the estate concerning which you have asked advice belongs to the substitute, for when the Senate fixed the penalties of the Cornelian Law against a person who, in a will, appointed himself heir or legatee of an estate, he is also held to have, in the same way, rendered appointments of an inveigling character void, as for instance, the following, “Let Titius be my heir to the same portion of the estate for which he himself has appointed me by his will,” as provisions of this kind are considered just as if they had not been inserted in the will.
2 Alfenus Varus libro quinto digestorum. Quae in testamento scripta essent neque intellegerentur quid significarent, ea perinde sunt ac si scripta non essent: reliqua autem per se ipsa valent.
2 Alfenus Varus, Digest, Book V. Where the meaning of any testamentary provision cannot be ascertained, it is just as if it had not been written, but the other provisions will still be valid.
3 Marcianus libro undecimo institutionum. Si in metallum damnato quid extra causam alimentorum relictum fuerit, pro non scripto est nec ad fiscum pertinet: nam poenae servus est, non Caesaris: et ita divus Pius rescripsit. 1Sed et si post testamentum factum heres institutus vel legatarius in metallum datus sit, ad fiscum non pertinet. 2Item si servo alieno quid legatum fuerit et postea a testatore redemptus sit, legatum exstinguitur: nam quae in eam causam pervenerunt, a qua incipere non poterant, pro non scriptis habentur.
3 Marcianus, Institutes, Book XI. Anything over and above a bequest for maintenance which is left to a criminal sentenced to the mines is considered as not having been written, but it is not forfeited to the Treasury, because the legatee is the slave of a penalty, and not the slave of the Emperor. The Divine Pius stated this in a Rescript. 1If an heir or legatee, who was appointed, should be condemned to the mines after the will has been executed, the estate or the legacy will not be forfeited to the Treasury. 2Likewise, if anything is left to the slave of another, and he is afterwards purchased by the testator, the legacy will be extinguished; for any bequests which are transferred to a place from which they cannot originate are considered as not having been written.
4 Ulpianus libro tertio decimo ad legem Iuliam et Papiam. Si eo tempore, quo alicui legatum adscribebatur, in rebus humanis non erat, pro non scripto hoc habebitur. 1Sed et si in hostium potestate erat, quo testamentum fiebat, neque ab hostibus rediit, pro non scripto erit: et ita Iulianus scribit.
4 Ulpianus, On the Lex Julia et Papia, Book XIII. Where a bequest is made to anyone at a time when he is already dead, it is considered as not having been written. 1Moreover, where a legatee is in the power of the enemy at the time that the will is made, and does not return from captivity, the legacy is held not to have been written. This was also stated by Julianus.
5 Paulus libro duodecimo quaestionum. Quod quis sibi adscripserit, si alii restituere a testatore iussus est, cum onere fideicommissum id apud heredem remanet, quamvis pro non scripto esset. idem est et in testamento militis.
5 Paulus, Questions, Book XII. When anyone appoints himself the heir in a will by which he is directed to deliver the estate to someone else, the trust with its burden will still remain imposed upon him, even though what he has done will be considered as not having been written. The same rule also applies to the will of a soldier.