fecisset, ut si filius non esset, qui in suam tutelam And from the time of Marcus Aurelius, the vulgar avails at the same time as the pupillary substitution for the impubes under power (in utrumque casum). Mod. Iam hoc iure utimur ex D. Marci et § 161. INVALIDITY OF THE TESTAMENT. The invalidity of the testament is spoken of in different senses. For the testament can (1) be either ipso iure null, or be merely disputable; (2) be either invalid from the outset, or be deprived of force by a later event; (3) the invalidity can be either total or partial, that is, relate merely to single dispositions. The testament is null (nullum)-and that totallyfrom the outset, if it lack one of its essential requirements (testamentum non iure factum, iniustum); and so 1 The celebrated case of Man. Cur. and Marc. Cop. was lately defended before the Centumvirs. When Q. Scaev. said that unless a posthumous son not only was born but died before he came into his tutelage, he could not be heir who was instituted heir after a posthumous son had both been born and died, I (Crassus), however, stated for the defence that he who had made the testament was then of this opinion, that if there were no son to come into his tutelage, Man. Cur. would be heir. " With us it is now, according to a constitution of the late Emperors Marcus and Verus, an accepted rule that, when a father shall have created a substitute for his son under the age of puberty, for one of two events, he shall be regarded as having created a substitute for both events, whether the son shall not become heir, or whether he shall become heir and die under the age of puberty. BOOK III. Part III. BOOK III. (1) if the required form is not observed; (2) if there exist no valid institution of heir; (3) if the testator had no capacity for making a testament; (4) in the 'praeteritio' (passing over) of a 'suus heres.' A testament so as to be legally valid is deprived of force (testamentum infirmatur) (1) by the testator's losing testamenti factio or independence of Family (testamentum irritum). Gai. ii. §§ 145-146: Testamenta iure facta infirmantur, velut cum is qui fecerit testamentum capite diminutus sit.-Hoc autem casu irrita fieri testamenta dicemus.1 Ulp. Exigit praetor, ut is cuius bonorum possessio datur utroque tempore ius testamenti faciendi habuerit, et cum facit testamentum et cum moritur. . . . Sed si quis utroque tempore testamenti factionem habuerit, medio tempore non habuerit, bonorum possessio secundum tabulas peti poterit.-D. 37, 11, 1, 8.2 Id. xxiii, 6: Si septem signis testium signatum sit testamentum, licet iure civili ruptum vel irritum factum sit, praetor scriptis heredibus iuxta tabulas bonorum possessionem dat, si testator et civis Romanus et suae potestatis, cum moreretur, fuit: quam bonorum possessionem cum re, i.e. cum effectu habent, si nemo alius iure heres sit.3 1 Testaments duly executed are annulled, for example, when the testator shall have suffered loss of status. But in this case we shall say that testaments become untenable. 2 The Praetor requires that he of whose effects possession is granted must have had testamentary capacity at both times, when making the testament, and when dying. . . . But if a man had testamentary capacity at both times, but had it not in the intermediate period, the bon. poss. sec. tab. can be claimed. 3 If a testament have been sealed with the seals of seven witnesses, though it may have been broken or untenable by civil law, yet the Praetor in accordance with the will grants (2) By lapse of the instituted heir (testamentum BOOK III. destitutum). Part III. Pomp. Si nemo hereditatem adierit, nihil valet ex his quae testamento scripta sunt.-D. 26, 2, 9.1 (3) By cancellation, for which, according to ius civile, the making of a fresh testament was required (testamentum posteriore testamento ruptum), but according to Praetorian and later Law, it is sufficient that there should be any intentional destruction of the testament, cancelling the institution of heir, a Cf. D. 34, 9, injury to the seals and the like, but not informal revocation,—which certainly is doubtful in respect of the Praetorian Law. Gai. ii. § 151: Potest ut iure facta testamenta contraria voluntate infirmentur. Apparet autem non posse ex eo solo infirmari testamentum, quod postea testator id noluerit valere, usque adeo, ut si linum eius inciderit, nihilominus iure civili valeat. Quin etiam si deleverit quoque aut obleverit tabulas testamenti, nihilominus non desinent valere quae ibi fuerunt scripta, licet eorum probatio difficilis sit." Et si quidem [testamentum] concidit testator, denegabuntur actiones; si vero alius invito testatore, non denegabuntur.-Si, ut intestatus moreretur, incidit tabulas et hoc adprobaverint hi qui possession of the effects to the heirs appointed, if the testator was both a Roman citizen and his own master at the time of his decease; and this possession they take cum re, that is, effectually, if there be no other person heir-at-law. 1 If no one enters upon the inheritance, no validity attaches to what has been written in the testament. 2 Testaments, duly executed, may be invalidated by a contrary intention. But it seems that a testament cannot be rendered nugatory by the mere fact that the testator afterwards did not wish it to be operative; to such an extent that, even though he should cut the thread, it would nevertheless continue good by civil law. Nay more, if he should even have effaced or besmeared the tablets of the testament, what was there written does not immediately cease to be valid, although proof of such may be difficult. 16, 2. BOOK IIL ab intestato venire desiderant, scriptis avocabitur hereditas.-D. 28, 4, l. 1, § 3 (Ulp.), l. 4 (Paul.).' Ulp. Si heres institutus non habeat voluntatem, vel quia incisae sunt tabulae, vel quia cancellatae, vel quia alia ratione voluntatem testator mutavit voluitque intestato decedere, dicendum est ab intestato rem habituros eos, qui bonorum possessionem acceperunt.-D. 38,6, 1, 8. Gai. ii. § 144: Posteriore quoque testamento, quod iure factum est, superius rumpitur; nec interest an exstiterit aliquis ex eo heres an non exstiterit: hoc enim solum spectatur, an existere potuerit; ideoque si quis ex posteriore testamento, quod iure factum est, aut noluerit heres esse, aut vivo testatore aut post mortem eius, antequam hereditatem adiret, decesserit, aut per cretionem exclusus fuerit, aut condicione, sub qua heres institutus est, defectus sit, . . paterfamilias intestatus moritur: nam et prius testamentum non valet, ruptum a posteriore, et posterius neque nullas vires habet, cum ex eo nemo heres exstiterit.3 1 And if it be the testator has cut through the testament, actions will be withheld, but if another did this against the testator's will, actions will not be withheld.—If the testator, in order to die without a testament, cuts the testamentary tablets, and proof has been given of this by the persons who seek entry under intestacy, the inheritance will be taken away from the designated heirs. 2 If the appointed heir have no desire, either because the tablets have been cut, or have been cancelled, or the testator in some other way has changed his will and wished to die intestate, we must say that the persons that have received possession of the effects will receive the property without a testament. 3 An earlier testament is revoked also by a later one which has been duly executed; and it is immaterial whether any one becomes heir under the later testament or not; for the only point regarded is, whether there could have been an heir. Therefore if the heir under the later testament, duly executed, either refuses to be heir, or dies in the lifetime of the testator, or after his decease, but before entry upon the inheritance, or : Ulp. Tunc autem prius testamentum rumpitur, Iust. ii. 17, 7: Ex eo autem solo non potest (4) By agnatio postumi' (testamentum ruptum in the narrower sense)." BOOK III. Part III. a § 167. (5) By employment of the querela inofficiosi.' § 169. SUCCESSION AB INTESTATO.c § 162. ACCORDING TO THE OLDER CIVIL LAW LEGITIMA HEREDITAS Intestate succession occurs if no valid testament exists, or the inheritance is not entered upon by virtue of such. e See Anct. Law, pp. 195-6, 217-221. a Ibid. pp. 199 201. • D. 29, 2, 39. Intestatus decedit, qui aut omnino testamentum non fecit, aut non iure fecit, aut id quod fecerat ruptum irritumve factum est, aut nemo ex eo heres exstitit. pr., I. h. t. (de her. q. ab int. 3, 1).3 The members of the testator's family, as the persons standing nearest to him, by the Lawf are called to Perhaps by the inheritance in a course of orderly succession. In presumable this the principle of Agnation uniquely underlies the old civil Law of intestate inheritance. does not fulfil the condition under which he was instituted heir ... the pat. fam. dies intestate; for the first testament is void, having been revoked by the later one, and the later one is equally of no force, since no one becomes heir under it. 1 An earlier testament is only revoked when the later one has been completed in proper form, unless perhaps a person has been designated therein who can enter without a testament. 2 A testament cannot be rendered invalid merely because the testator afterwards wished that it should be inoperative. 3 A person dies intestate who either has made no testament at all, or has made one not according to law, or when that which he made has been revoked or become inoperative, or when no one has become heir by virtue thereof. supplying his will. 9 § 42. |