Quaestionum libri
Ex libro VIII
Dig. 29,1,38Idem libro octavo quaestionum. Quod dicitur, si miles intra annum quam missus est decesserit, valere eius testamentum quod iure militari fecerat, verum est, etiamsi post annum condicio institutionis exstiterit, mortuo eo intra annum. et ideo si heredi filio substituerit, nihil interest, quando filius moriatur: sufficit enim patrem intra annum obisse. 1Miles testamentum fecerat, deinde non ignominiae causa missus rursum cinctus est in alia militia: quaerebatur, an testamentum eius, quod in militia fecerat, valeret. quaesivi, utrum iure militari an communi iure testatus est. et si quidem communi iure testatus est, nulla dubitatio est, quin valeat. sed si ut miles fecisset testamentum, agitare coepi, quando adsumptus fuisset, postquam desiit in numeris esse, utrum intra annum an post annum: cognovi intra annum eum adsumptum. ergo si, cum adhuc iure militari valeret, rursus eodem iure posset testari, numquid etiam post annum eo mortuo valeat testamentum? me movebat, quod alia militia est posterior: sed humanius est dicere valere testamentum, quasi coniuncto munere militiae. non loquor de eo, qui voluit valere testamentum etiam adsumptus: hic enim quasi in militia sequenti fecit testamentum exemplo eius, qui paganus fecit, deinde militare coepit.
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.