BOOK III. a Gai. i. 192. videtur ex edicto praetoris secundum eas tabulas possessio dari.' Gai. i. 115: Olim testamenti faciendi gratia fiduciaria fiebat coemptio: tunc enim non aliter feminae testamenti faciendi ius habebant, exceptis quibusdam personis, quam si coemptionem fecissent remancipataeque et manumissae fuissent; sed hanc necessitatem coemptionis faciendae ex auctoritate D. Hadriani senatus remisit.2 Women, according to ius civile, always required tutoris auctoritas for the making of a will so long as tutela mulierum in general existed, but this had only actual significance in legitima tutela parentum ac patronorum,'a so that emancipated daughters and libertae were in fact at any rate as good as incapable of testation. The Praetor, however, later on gave the bonorum possessio secundum tabulas also upon a testament made without tutoris auctoritas, but this at the outset-always in the case of those last mentioned was 'sine re' as regards civil intestate heirs. Gai. ii. §§ 118-122: Observandum praeterea est, ut si mulier quae in tutela est faciat testamentum, tutore auctore facere debeat: alioquin inutiliter iure civili testabitur. § Praetor tamen si septem signis testium signatum sit testamentum, scriptis heredibus secundum tabulas testamenti bonorum possessionem pollicetur, et si nemo sit, ad quem ab intestato iure legitimo pertineat 1 If a testament has been made by such woman as never suffered loss of caput, possession according to those tablets does not seem to be given by the Praetor's Edict. 2 Formerly a fiduciary coemption took place for the purpose of making a testament. For at that time women, with the exception of certain persons, had no right of making a testament, unless they had performed a coemption, and had been remancipated and manumitted. But on the authorisation of the late Emp. Hadrian, the senate dispensed with this necessity of performing the coemption. a BOOK III. Part III. p. 796. hereditas, velut frater eodem patre natus aut 1 We have, moreover, to observe that, if a woman who is under guardianship makes a testament, she must make it with the concurrence of the guardian; otherwise her testament will be inoperative by civil law. § The Praetor, however, if the testament is sealed with the seals of seven witnesses, promises the bon. poss. to the testamentary heirs secundum tabulas, and if there is no one to whom the inheritance by intestacy legally belongs, as a brother by the same father, or a paternal uncle, or a brother's son, the testamentary heirs will thus be able to retain the inheritance. § But let us see whether, although a brother or a paternal uncle exist, they will be held to have preference over the testamentary heirs. For it is laid down in a rescript of the Emp. Antonine. § That this applies to testaments of males is certain; also to those of females who have made an invalid testament because, for instance, they have not sold their familia, or have not recited the words of nuncupation, but Explained by Gaius in § 102 whether this constitution also applies to those testaments of (infra). Sce, females which they have made without the concurrence of however, Muirtheir guardian, we shall have to consider. § We speak, however, head on § 104. of course of such females as are not under the statutory guardianship of parents or patrons, but of those who have guardians of another kind, who are compelled to give their sanction even against their will; on the other hand, it is clear b The testator himself must, moreover, have sure knowledge of his legal standing. De statu suo dubitantes vel errantes testamentum facere non possunt;-nam qui incertus de statu suo est, certam legem testamento dicere non potest.-1. 15 (Ulp.), l. 14 (Paul.), D. h. t.' Finally, the Latini Iuniani had no capacity for testation, notwithstanding that they enjoyed testamenti factio." § 157. REGULAR FORMS OF THE Testament. The oldest forms of testament were the 'testamentum calatis comitiis' (in comitia curiata collected for testimony) and the 'testamentum in procinctu factum,' that is, in the army divided according to centuries, and in battle array; both of political, sacral character. Gai. ii. § 101 Testamentorum genera initio duo fuerunt: nam aut calatis comitiis testamenta faciebant, quae comitia bis in anno testamentis faciendis destinata erant; aut in procinctu, i.e. cum belli causa arma sumebant: procinctus est enim expeditus et armatus exercitus. Alterum itaque in pace et in otio faciebant, alterum in proelium exituri.2 Gell. xv. 27:-scriptum est. . . ‘calata'comitia esse, quae pro collegio pontificum habentur. . . . Iisdem comitiis, quae calata' appellari diximus, that a parent and a patron cannot be set aside by a testament made without his concurrence. 1 Those who are in doubt or in error as to their status cannot make a testament ;-for he that is uncertain about his status can declare no definite testamentary regulation. 2 There were originally two sorts of testaments; for men made them in summoned assemblies, which were held twice a year for the purpose of making testaments; or in battle array, that is, when they took up arms on account of war, for procinctus means an army equipped and armed. One, therefore, was made during peace and leisure, the other when they were about to go forth to battle. et sacrorum detestatio et testamenta fieri sole- BOOK III. These two forms, however, were soon displaced by the more convenient testamentum per aes et libram,' which was recognised in the Twelve Tables, and consists in a mancipatio of the familia pecuniaque' of the testator to the 'familiae emptor'a and nuncupatio associated a Compare the with it. fundamental character of an English will of Wills Act (7 I Vict. c. 26): D. 28, 2, 11; According to the older form of the mancipatory real estate testament, the familiae emptor was himself heres, and before the indeed already in the lifetime of the testator, so as will. IV. & entirely to assume the same position in respect of his Digby, P. 338. property as the suus. According to the later form, Gai. ii. 157: he acted a merely formal part, and the point of gravity b. 7, 12-cf. in the act of testation was by this time the nuncupatio, § 173, ad init. with which the heir was nominated by word of mouth, and other dispositions by last will were enunciated as to the heritage. It soon, however, became usual to make the last will in the form of a written document, and to acknowledge and confirm as one's testament the document exhibited (tabulae testamenti) after previous, by this time only formal, familiae mancipatio with a solemn declaration (nuncupatio); whereupon the sealing of the testament and subscription of their names by the witnesses usually followed. Gai. ii. §§ 102-104: Accessit deinde tertium genus testamenti quod per aes et libram agitur ; qui enim neque calatis comitiis neque in procinctu testamentum fecerat, is si subita morte urguebatur, amico familiam suam (i.e. patrimonium suum) mancipio dabat eumque rogabat, quid cuique post mortem suam dari vellet: quod testamentum dicitur per aes et libram, scilicet quia per mancipationem peragitur. § Sed illa quidem duo 1 It is written that the com. cal. are such as are held in place of the college of pontiffs. . . . In the same comitia which, as we have said, are called calata, both family rites used to be renounced and testaments made. BOOK III. genera testamentorum in desuetudinem abierunt ; hoc vero solum, quod per aes et libram fit, in usu retentum est. Sane nunc aliter ordinatur quam olim solebat: namque olim familiae emptor, i.e. qui a testatore familiam accipiebat mancipio, heredis locum obtinebat et ob id ei mandabat testator, quid cuique post mortem suam dari vellet : nunc vero alius heres testamento instituitur, a quo etiam legata relinquuntur, alius dicis gratia propter veteris iuris imitationem familiae emptor adhibetur. Eaque res ita agitur: qui facit testamentum adhibitis sicut in ceteris mancipationibus, v testibus civibus Romanis puberibus et libripende, postquam tabulas testamenti scripserit, mancipat alicui dicis gratia familiam suam; in qua re his verbis familiae emptor utitur: FAMILIAM PECVNIAMQVE TVAM ENDO [MANDATELA ?] TVTELA CVSTODELAQVE MEA ESSE AIO EAQVE, QUO TV IVRE TESTAMENTVM FACERE POSSIS SECVNDVM LEGEM PVBLICAM, HOC AERE [et ut quidam adiiciunt?] AENEAQUE LIBRA ESTO MIHI EMPTA ; deinde aere percutit libram idque aes dat testatori velut pretii loco; deinde testator tabulas testamenti tenens ita dicit: HAEC ITA VT IN HIS TABVLIS CERISQUE SCRIPTA SVNT, ITA DO ITA LEGO ITA TESTOR, ITAQVE VOS QVIRITES TESTIMONIVM MIHI PERHIBETOTE: et hoc dicitur nuncupatio: nuncupare est enim palam nominare, et sane quae testator specialiter in tabulis testamenti scripserit, ea videtur generali sermone nominare atque confirmare.' 1 There was afterwards added a third sort of testament, which is executed by means of copper and balance. For a man who had neither made his testament in the com. cal. nor in proc., if he was apprehensive of imminent death, used to make over his familia (that is, his patrimony) by mancipation to a friend, and instructed him as to what he wished should be given to each person after his death: this testament is called 'by copper and balance,' of course because it is performed by |