WILL, ROMAN. A Roman will was called Testamentum. Testamentum was defined by the jurists of the Imperial period to be "a legal mode of a man's de claring his intention in due form, to take effect after his death." The person who made such declaration was called Testator.
The power of making a Roman testa ment only belonged to Roman citizens who were sui ,furls, a rule which excluded a great number of persons : those who were in the power of another, as sons not emancipated, and daughters ; impuberes; dumb persons, deaf persons, insane per sons, and others ; and, as a general rule, all women. The circumstances under which a woman could make a will were peculiar ; and they would require a very particular statement. A male of the age of fourteen years complete, unless under some special incapacity, could make a valid will. A female, so far as respected age only, acquired this capacity on the completion of her twelfth year.
Originally Roman citizens made their wills at Calata Comitia, which were held twice a year for this purpose.. It is not said that these wills were made in writing; and it is here assumed that they were made at the Calata Comitia only for the purpose of securing the proper evidence of the testator's intention. It has been maintained by Niebuhr, that wills were made at the Calata Comitia in order that the Gentes might give their consent to the testamentary disposition, but this con jecture Is not supported by evidence. Wills could also be made in procinctu, that is, by a soldier under arms and in presence of the enemy. Another mode of testamentary disposition was intro -dnoed, apparently for the purpose of preventing intestacy. If a man, says Gains 102), had neither made his will at the Calata Comitia nor in pro cinctu, and was threatened with sudden death, he transferred, by the form of man cipatio, his familia, that is, his patri monium, to a friend, and told him what to give to each person after his death : this was called the testamentum per as et libram, because the transfer was effected by mancipatio. Thus it appears that the testamentum per as et libram was a for mal transfer of the property during the lifetime of the owner to a person who un dertook to dispose of it as he was directed. As it was a substitute for the testament made at the Calata Comitia, it is a pro bable inference that it only differed from the testament made at the Comitia in wanting that publicity. The two old forms of testamentary disposition, adds Gains, fell into disuse, and that per as et libram became the common form. Ori ginally the formal purchaser of the tes tator's estate (familite emptor) occupied the place of the heres at a later time ; when Gains wrote, and long before his time, the old form of testamentary dis position was retained as to the familise emptor, but a heres was appointed by the will to carry into effect the testator's in tention. The formal purchaser was only
retained out of regard to antient custom, and the institution of a heres became necessary to the validity of a will.
The form of testamentary transfer per as et libram is described by Gains (ii. 104). As in other acts of mancipation, so in this, there were five witnesses of full legal age (rberes). These five witnesses are considered by some modern writers to be the representatives of the five classes of the Roman people, and that as the original act of mancipation was rendered valid by the consent of the five classes, so here it was rendered valid by the presence of the five witnesses. In this article it is supposed that they were present as witnesses only.
Written wills, as already observed, were not necessary, for neither manei pation nor the institution of a heres re quired a writing. But written wills were the common form during the later Re publican and the Imperial period Wills were written on tablets of wood or wax ; hence the word " cera" (wax) is often used as equivalent to tabula. A Roman will was required to be in the Latin lan guage until A.D. 439, when it was enacted that wills might be written in Greek. A Roman will in the later periods was sealed and signed by the witnesses. The sealing consisted in making a mark with A ring or something else on the wax, and the names were added. The seals and names were on the outside, for according to the old law there was no occasion for the witnesses to know the contents of the will. The old practice was for the testator to show the will to the witnesses, and to call on them to witness that what he so presented to them was his will. It was not unusual for a man to make several copies of his will, and to deposit them in some safe keeping. (Dig. 31, tit. 1, 5. 47, and the case of a legacy put to Pro culus.) Augustus, the emperor, made two copies of his will (Sneton., Aug. 101); and also his successor Tiberius (Sueton., Ta. 76). The Vestal Virgins were often the keepers of wills, or they were depo sited in a temple or with a friend. (Tacit. Ana. i. 8.) At the opening of the will the witnesses or the greater part, if alive and on the spot, were present, and after acknowledging their signatures the will was opened.