BOOK III. a Cf. Böcking, 'Pandekten,' iii. § 17. fin. Besides PRIVATE, there are still PUBLIC testaments (testamenta publica), which can be made either by declaration upon record before a public magistrate (testamentum apud acta conditum s. iudiciale) or by delivery to the Emperor for safe custody (testamentum principi oblatum) without further solemnity. § 158. ANOMALOUS FORMS, ESPECIALLY TESTAMENTUM MILITIS. In many cases the solemnities in the making of a testament were in part increased-so as to have a greater guarantee for the authenticity of the last will (e.g., in the testament of the blind, deaf, dumb)—and in part were curtailed (privileged testaments). Amongst the latter, the 'testamentum militis' deserves special Cf. § 149, ad mention. According to imperial constitutions, this required no formalities. Whilst this privilege originally appertained to all milites according to their standing, from the time of Justinian it avails only for military testaments made in the field. The testament so made remains in force even for a year after honourable discharge. In respect of its contents also the military testament was variously absolved of legal rules otherwise binding; thus the heritage of the miles is uniformly treated 'not as familia according to fin.; 16), ad fin. jus civile proprium Romanorum, but as bona according to ius gentium.'d © Cf. §§ 153, 159, ad fin.; 160, 167, ad d Böcking. Ulp. Militibus liberam testamenti factionem primus quidem D. Iulius Caesar concessit, sed ea concessio temporalis erat. Postea vero primus D. Titius dedit, post hoc Domitianus; postea vero D. Nerva plenissimam indulgentiam in milites contulit, eamque et Traianus secutus est et exinde mandatis inseri coepit caput tale: . . . 'Faciant testamenta quo modo volent, faciant quo modo poterint sufficiatque ad bonorum suorum divisioment occur in between. But if he do anything relating to the testament, the testament is not vitiated. nem faciendam nuda voluntas testatoris.' D. 29, I, I pr.' Ulp. xxiii. 10: Sed quod testamentum miles contra iuris regulam fecit, ita demum valet, si in castris mortuus sit, vel post missionem intra annum.2 Inst. ii. II pr.: Supradicta diligens observatio in ordinandis testamentis militibus propter nimiam imperitiam constitutionibus principalibus remissa est: nam quamvis hi neque legitimum numerum testium adhibuerint, neque aliam testamentorum sollemnitatem observaverint, recte nihilominus testantur: videlicet cum in expeditionibus occupati sunt, quod merito nostra constitutio induxit. Quoquo enim modo voluntas eius suprema sive scripta inveniatur, sive sine scriptura, valet testamentum ex voluntate eius. Illis autem temporibus, per quae citra expeditionum necessitatem in aliis locis vel in suis sedibus degunt, minime ad vindicandum tale privilegium adiuvantur." 1 The late Emp. Julius Caesar was the first to grant to soldiers free execution of a testament, but that concession was limited to a certain time. But the late Emperor Titus was the first to grant it to them afterwards; after that Domitian; and subsequently the late Emp. Nerva conferred upon soldiers the fullest indulgence, and his example was followed by Trajan also; and from thenceforth a chapter began to be included in the mandates as follows: '. . . They may make their testament in such manner as they like, they may make them in such way as they can, and the mere will of the testator shall suffice for the distribution of his property.' 2 But when a soldier has made a testament contrary to a rule of law, it is only valid if he have died in the field, or within a year after his discharge. 3 By imperial constitutions, the strict observance of what is above mentioned in the framing of testaments has been dispensed with in the case of soldiers, on account of their excessive inexperience. If, accordingly, they do not employ the lawful number of witnesses, nor observe some other usual form in respect of testaments, they nevertheless make valid testaments; that is to say, when they are engaged on active BOOK III. BOOK III. Part III. a Compare in English Law the nomination of an executor CONTENTS OF THE TESTAMENT. § 159. INSTITUTION OF HEIR.“ The testament can contain the most various disposi(Brown, s.v.). tions, but its essential and necessary subject-matter is uniquely and always the nomination of an heir. 'No testament without institution of an heir; no institution of heir without a testament.' b b Cf. Arndts, § 483. Gai. ii. § 229: Testamenta vim ex institutione heredis accipiunt et ob id velut caput et fundamentum intelligitur totius testamenti heredis institutio.'' Ulp. xxiv. 15: Ante heredis institutionem legari non potest, quoniam vis et potestas testamenti ab heredis institutione incipit." Institution requires, according to classical Law, prescribed FORM (verba imperativa). Gai. ii. § 117: Sollemnis autem institutio haec est: TITIVS HERES ESTO; sed et illa iam comprobata videtur: TITIVM HEREDEM ESSE IVBEO; at illa non est comprobata: TITIVM HEREDEM ESSE VOLO ; sed et illae a plerisque improbatae sunt: HEREDEM INSTITVO, item HEREDEM FACIO. service: this has with good reason been introduced by our constitution. For in whatever manner his last intention is discovered, whether as written or without writing, his testament holds good by virtue of his intention. But during those times when they are living exempt from the necessity of service, in other places or at their homes, they are not allowed to claim such a privilege. 1 Testaments derive their force from the institution of an heir, and on that account the institution of the heir is regarded as the head and foundation of the whole testament. 2 There can be no bequest of a legacy before the institution of the heir, since the force and power of a testament begins with the institution of an heir. Tit., be my heir'; but Tit. to be heir.' This, Now the solemn institution is this: this also now seems approved: 'I order however, is not approved: My will is that Tit. should be heir '; but further, these following are by most disapproved: 'I institute heir,' and 'I make heir.' By later Law, however, any declaration is sufficient by which the personality of an heir is directly and plainly set forth. Imp. Constant.: Placuit ademptis his quorum a BOOK III. Part II. guished from acquire, § 172. Next, as to capacity to inherita of the heir instituted. To be distinHe is incapable that has no testamenti factio; but capacity to one's own slaves can be instituted as heirs 'cum libertate,' and the slaves of others have testamenti factio from and for their master personally. Ulp. xxii. 7-9: Servos heredes instituere possumus nostros cum libertate, alienos sine libertate, communes cum libertate vel sine libertate.-Eum servum, qui tantum in bonis noster est, nec cum libertate heredem instituere possumus, quia Latinitatem consequitur, quod non proficit ad hereditatem capiendam.-Alienos servos heredes instituere possumus eos tantum, quorum cum dominis testamenti factionem habemus.12: Proprius servus . . . si sine libertate şit institutus, omnino non consistit institutio." 1 It has been decided to do away with those formalities of which only fanciful use is made, and, in respect of the institution of an heir, that the observance of (certain) words is unnecessary, whether the institution be effected by peremptory and direct, or indirect terms; . . . but in whatever manner of speech the institution has been expressed, it shall hold good, so long as the intention of the will shall thereby clearly appear. 2 We may institute slaves as heirs; accompanied by liberty if they belong to us, without liberty if they are owned by other people; with or without liberty if they are common property.— A slave that is ours alone upon a Bonitary title we cannot institute heir, even as accompanied by liberty, because he attains Latinity, and this is of no avail for taking an inheritance. Inst. ii. 19, 4. BOOK III. Hodie vero etiam sine libertate ex nostra constitutione heredes (servos proprios) instituere permissum est.-pr., I. h. t. (de her. inst. 2, 14).' ... Flor. In extraneis heredibus illa observantur, ut sit cum eis testamenti factio, . . . et id duobus temporibus inspicitur, testamenti facti, ut constiterit institutio, et mortis testatoris, ut effectum habeat; hoc amplius et cum adibit hereditatem, esse debet cum eo testamenti factio; . . . medio autem tempore inter factum testamentum et mortem testatoris vel condicionem institutionis existentem mutatio iuris heredi non nocet.-1. 50 (49), § 1, D. h. t. (de her. inst. 28, 5).a After the lex Voconia (A.U. 585), women, other than Vestal virgins, could not be instituted as heirs by « Paul. iv. 8, 22. citizens enrolled in the first class -a restriction which Gai. ii. 226. naturally disappeared in the later period. Gai. ii. § 274: Item mulier, quae ab eo qui centum milia aeris census est per legem Voconiam heres institui non potest, tamen fidei commisso relictam sibi hereditatem capere potest. Slaves belonging to other people we can alone institute as heirs with whose masters we have testamentary capacity.—If our own slave have been instituted without the accompaniment of liberty, the institution altogether fails. 1 But at the present day, according to our constitution, leave is given to institute (one's own slaves) as heirs without the accompaniment of liberty. : 2 The following points are observed in respect of strangerheirs that there be with them a relation of testamentary capacity; . . . and that is measured by two periods, according to the time when the testament was made, that the institution should hold good, and according to the time when the testator died, that it should take effect. Moreover, there must be a relation of testamentary capacity with him at the time when he shall enter upon the inheritance. But if a change of status should happen in the interval between the making of the testament and the death of the testator, or until the fulfilment of the condition attached to the institution, it does not prejudice the heir. 3 Again, a woman who, according to the l. Voconia, cannot be instituted heir by any one who is registered as possessing one |