Ulpianus, On the Edict, Book XLV. If anyone should appoint a slave the guardian of his son, thinking that he was free, when, in fact, he was a slave; he shall neither become free, nor act as guardian under the provisions of the will.

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

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.

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.

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.

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.

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.

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.

Ulpianus, On the Edict, Book XLV. A son who has been emancipated by his father is in the same condition, so far as prætorian possession contrary to the provisions of the will is concerned, as that of a freedman. This appears to the Prætor to be perfectly just, because the son obtains the advantage of acquiring property from his father; whereas, if he was under paternal control, and should acquire anything for himself, his father would reap the benefit of it. Hence, the rule was established that the father should be allowed to obtain prætorian possession contrary to the provisions of the will, just as a patron is permitted to do. 1Therefore, persons who have been manumitted are enumerated in the Edict as follows, “He who had been emancipated by his father, or by his paternal grandfather, or by his paternal great-grandfather.” 2Where a grandson, who has been manumitted by his grandfather, gives himself in arrogation to his father, even if he should die while still under paternal control, or should die after having been manumitted, his grandfather will only be admitted to the succession in accordance with the interpretation of the Edict; because the Prætor grants the possession of the estate, just as where a slave has been manumitted from servitude. If, however, this should be the case, or if the son should not be arrogated because the arrogation of a freedman is not permitted, or if it should be done fraudulently, the rights of the patron would, nevertheless, remain unimpaired. 3If a father has either received money to induce him to emancipate his son, or if, afterwards the son, during his lifetime, should pay him enough to prevent him from opposing his will; he will be barred by an exception on the ground of bad faith. 4There is another instance in which a father does not obtain ipossession of the estate of his emancipated son, contrary to the provisions of the will, and that is where the son happens to enter the army; for the Divine Pius stated in a Rescript that the father could not, under these circumstances, obtain possession of the estate of his emancipated son in opposition to the terms of the will. 5It is settled that the children of a father, who manumitted his son, cannot obtain possession of the estate of the latter, in opposition to the terms of the will; even though the children of a patron can do so. 6Julianus says that where a father has obtained possession of the estate of his emancipated son, in opposition to the terms of the will, he will retain the former privilege which he enjoyed without manumission; for he should not be prejudiced because he possessed the rights of a patron, as he is still a father.

Ulpianus, On the Edict, Book XLV. There is no doubt that the wishes of those who make their last wills while in arms against the enemy, no matter in what way they may do so, and who die while in the army, should be observed. For, although the condition of a soldier is different from that of those persons who are privileged by the Imperial Constitutions, still, as men who constantly go into battle are exposed to the same dangers, it is only reasonable that they should claim the same privileges for themselves. Therefore, all who are in such a position that they cannot make wills under military law, if they are found in the train of the army and die there, can execute wills in whatever way they desire, and in whatever way they may be able, whether they are Governors of provinces, Imperial Deputies, or any others who are incapable of testation in accordance with military law. 1Moreover, there is no doubt that the captains of ships and the commanders of triremes can make wills under military law. All the oarsmen and sailors of fleets are considered as soldiers, and also the guards are classed as such; and there is no doubt that all these are capable of testation in accordance with military law. 2If a soldier is transferred from one command to another, even though he may have left one and not yet have been enrolled in another, he can, nevertheless, make a will according to military law; for he is still a soldier, although he may not yet have been assigned to any particular legion.

Ulpianus, On the Edict, Book XLV. A patron who is over the age of twenty-five years, and accuses a freedman of a capital crime, or makes application to have him reduced to slavery, shall be excluded from possession contrary to the provisions of the will. 1It must be said, however, if he was a minor when he made the accusation, that he is not excluded, whether he himself, or his guardian or curator brought the accusation. 2If, however, he should bring the accusation while he was a minor, and after he became of age should obtain judgment, he must be said to be entitled to indulgence, and should be pardoned, because he instituted proceedings while he was a minor. Nor ought we to blame him for not having abandoned the accusation, or for not demanding that it be dismissed, for if he had done one of these things, he would be liable to the penalty of the Turpillian Decree of the Senate, and he could not have easily obtained the other. If, however, the case had been publicly dismissed, and the patron, having attained his majority, should repeat his demand, it must be said that he will be excluded from the succession, for, having become of age, he can without any risk abandon an accusation which has been dismissed. 3He only is considered to have brought an accusation of a capital crime who, by means of such a proceeding, seeks to have the accused party suffer the punishment of death or exile, instead of banishment, which causes the forfeiture of civil rights. 4If, however, anyone accuses his freedman of an offence, the penalty of which is not a capital one, and, nevertheless, the judge decides to increase the penalty, this will be of no disadvantage to the son of the patron; for neither the ignorance nor the severity of the judge should prejudice the son of the patron, who has brought a less serious accusation against the freedman. 5Where, however, he does not accuse him, but gives his testimony against his freedman in a capital case, or provides the accuser, I think that he should be excluded from obtaining possession of his estate contrary to the provisions of the will. 6If a freedman accuses the son of his patron of the crime of lese majeste, and the son demands that the freedman be punished for slander, I think that he should not be excluded from the succession under the terms of this Edict; and if he has been accused by him and brings a counter accusation, the same rule will apply, for the patron should be excused, if after having been attacked, he desires to revenge himself. 7If a son is compelled to avenge his father’s death and accuses his father’s freedman, who was his physician, of the crime, or accuses his slave who slept in the same room with him, or any other who was attached to the person of his father, can it be said that relief should be granted him? I think that it should be, if it was necessary for him to bring an accusation against the freedman of his father, and he was influenced by motives of affection, and the risk he ran of losing his father’s estate if he did not do so, even though the accusation should prove to be false. 8Moreover, we say that he has brought an accusation who alleges that another is guilty of crime, and causes the case to be tried until sentence is imposed. If, however, he does not proceed so far, he is not considered to have brought the accusation, and this is our present practice. But if he should desist after an appeal is taken, it has been very equitably decided that he has not prosecuted the case to a conclusion. Hence, if the freedman dies while the appeal is pending, the son of the patron shall be permitted to obtain possession of his estate, because the freedman has been removed by death from the consequences of the sentence. 9If the son of a patron gives his assistance, as an advocate, to the accuser of a freedman of his father, he should not be excluded from the succession on this account, for the advocate does not make the accusation. 10Where a father provides by his will that his freedman shall be accused of having prepared poison for him, or to have committed some other act of this kind to his injury, the better opinion is that his children who did not voluntarily bring the accusation ought to be excused. 11If the son of a patron should accuse the freedman of his father, and should convict him of a crime, and the said freedman should afterwards be restored to his rights, he shall not be excluded, for he prosecuted the accusation which was brought to the end.

Ulpianus, On the Edict, Book XLV. He is not considered to have demanded that a freedman be reduced to slavery, who opposes one who is already a slave, and denies that he be given his freedom; but he who demands that one who is in the enjoyment of freedom shall be reduced to slavery. 1Where anyone alleges that a slave is not entirely his, but that he has a share in him, or the usufruct of him, or some other right to which he would not be entitled unless the man was a slave, shall he be excluded from the succession of the freedman, as demanding that he be returned to slavery? This is the better opinion. 2If a patron should demand that his freedman should be reduced to slavery, and should succeed, and the truth having been afterwards ascertained, he suffers him to remain at liberty, this should not prejudice him, especially if he had good cause for his mistake. 3He is not considered to have made a demand to reduce the freedman to slavery who abandons the case before issue has been joined. If, however, he does so after issue has been joined, it must be said that this will not prejudice him, because he did not continue until a decision had been rendered. 4If the son of a patron, who has either been disinherited, or has demanded that a freedman of his father should be returned to slavery, or has accused the freedman of a capital crime, it will not prejudice his children, if they are not under his control. This the Divine Brothers stated in a Rescript to the Quintilians. 5If anyone should obtain prætorian possession of the estate of his freedman contrary to the provisions of his will, not only if he was appointed heir by the said freedman, but also if he had been substituted for his minor son, he will be excluded from all the benefits under the will of the said freedman. For Julianus says that if a patron, after making a demand for the prætorian possession of the estate of his freedman, should enter upon the estate of the minor son of said freedman, actions must be denied him. 6If, however, anything should be left to the patron by a codicil or a donation mortis causa, in like manner participation in these benefits shall be refused him. 7Sometimes it is evident that the right to claim a legacy should be granted to the patron, after he has demanded possession of the estate of his freedman, if he will receive no benefit therefrom; for the reason that he has been asked to transfer the legacy to another. 8Again, the Prætor says that he will not only refuse an action to the patron to recover what is specifically given to him, but also to recover anything which you may suggest might come into his hands through others; as, for instance, through those who are subjected to his authority, because he can retain such property, and will not be obliged to surrender it. 9We should grant the right to demand a bequest to a patron if the freedman had bequeathed a preferred legacy of the price of a slave to his patron, on condition that the latter should liberate the said slave. 10If the substitute for a patron should be asked by him to deliver possession of the estate of a freedman contrary to the provisions of the will, an action to recover the share of him to whose patron possession was given shall not be granted. 11Where a patron has been substituted for the heir, and dies during the lifetime of the testator, it is settled that if the son of the patron demands prætorian possession of the estate of the freedman contrary to the provisions of the will he can not only acquire the share of the substitute, but can deprive all the heirs of a certain portion of their inheritance, in order to make up the amount to which he is legally entitled.

Ulpianus, On the Edict, Book XLV. Where cognates accuse one another of crime, such an accusation offers no obstacle to succession to their estates.

The Same, On the Edict, Book XLV. If his wife, or a relative, or anyone else who did not become known to him through his service in the army, donates, or bequeaths anything to a son under paternal control, and expressly states that he shall hold it as his castrense peculium, can this be added to it? I do not think that it can, for we consider the truth and whether the acquaintance or the affection was derived from military service, and not something which anyone may have imagined.