Ulpianus, On Sabinus, Book II. It was stated in a Rescript by the Divine Brothers, that a soldier cannot appoint a guardian for his grandchildren, if they were liable to again come under the control of their father.

The Same, On Sabinus, Book II. The name of the heir should be plainly spoken, in order that it may be heard. The testator is, therefore, permitted either to mention the heirs by name, or to write down their names, but if he mentions them he must do so distinctly. What does the term “distinctly” mean? It does not mean that this shall be done publicly, but in such a way that the names may be heard, not, indeed, by everyone, but by the witnesses to the will; and where there are several witnesses, it will be sufficient for them to be heard by the number specified by law. 1Where the testator wishes to change his will, it is established that everything must be done over again from the beginning. The question, however, arises whether, after the legal formalities have been complied with, he can explain anything which may happen to be obscure in his will, either in words or in writing. As, for instance, where he makes a bequest of Stichus, when he has several slaves of that name, and did not mention which one he had reference to; or where he makes a bequest to Titius, when he has several friends who are called Titius; or where he has made a mistake either in the name, the title or the surname of a party, but did not make a mistake with reference to the article bequeathed; can he afterwards state what he meant? I think that he can, for he does not give anything by doing so, but merely points out what was given. But if he should subsequently append a note to a legacy, either orally or in writing, or add a certain sum, or insert the name of the legatee which he had not yet filled out, or mention the kind of money with which the legacy is to be paid, will he act in accordance with law? I think that even the kind of money to be paid can afterwards be designated, for where he has not done so, it will be necessary to determine this with reference to the bequest, either from documents drawn up at the same time, or in accordance with the custom of his family or of the province. 2It is held in the case of wills, where witnesses are asked to be present for the purpose of attesting the same, that if they have been summoned for any other purpose, they will not be competent; and it must be understood in this instance that even though they may have been requested to appear, or were collected for some other purpose, and, before they act as witnesses, they are informed that they are to be employed for that purpose, they can legally act as such. 3The will must be drawn up with reference to itself alone, and this is done where nothing foreign to the purpose of the instrument is introduced; but where any act connected with the will is performed, the validity of the latter will not be affected.

Ulpianus, On Sabinus, Book II. Hence, a first will is broken when a second one is properly executed, unless the latter has been executed in accordance with military law, or where the testator stated therein who would be entitled to succeed ab intestato; for, in this instance, the first will is broken by the second, although it may not be perfect.

The Same, On Sabinus, Book II. Where a testator makes use of the words: “I appoint So-and-So and So-and-So to be my heirs according to their shares”; with reference to those who are appointed heirs, Marcellus does not think that they become such where no shares have been assigned to them, just as if they had been designated in the following terms: “If I should specify their shares”. The better opinion is, that where the wishes of the deceased are not disregarded, each appointment should be understood, for instance: “I appoint them heirs for the shares of the estate which I shall assign to them, but not to equal shares”; just as if a twofold appointment had been made. This opinion Celsus approves in the Sixteenth Book of the Digest. But he thinks otherwise where an appointment is made as follows: “Let Seius be my heir to the same portion to which Titius has appointed me heir”; for if he was not appointed by Titius, Seius will not be appointed by him. This opinion is not unreasonable, for in this instance a condition is involved. Marcellus, however, thinks that the cases are similar. 1It makes a difference where a party writes: “Of those shares which I have assigned to him”, or “Which I shall assign to him”, for, in the first instance, you can say that where no shares are designated, there is no appointment; just as Marcellus decided in a case where the appointment was made as follows: “Let So-and-So and So-and-So be heirs to those portions to which they have been appointed by the will of their mother”, and if their mother should die intestate, they will not be legally appointed.

Ad Dig. 29,1,3ROHGE, Bd. 15 (1875), Nr. 20, S. 50: Aufrechterhaltung der Willenserklärung, wenn das geschlossene Geschäft unverbindlich ist, indeß die Erfordernisse eines andern vorhanden sind.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.

Ulpianus, On Sabinus, Book II. The Divine Pius stated in a Rescript addressed to Cæcilius Proculus, that, where a choice of slaves was bequeathed, the legatee could select three.

The Same, On Sabinus, Book II. Everything is included in the terms, “the others,” and, “the balance,” as Marcellus says with reference to a man to whom the choice of a slave was bequeathed, the others being left to Sempronius; for he holds that if he should not make a choice, all the slaves will belong to Sempronius.