It has been mentioned that in order to make a Roman will valid, it must appoint or institute a hexes. The heres was a person who represented the testator, and who paid the legacies which were left by the will. He stood in the place of the families emptor, or formal purchaser of the property in the old form of will. A heres might be appointed in such words as follow : "'Mitts heres esto," " let Ti ties be my heres;" or " Titium heredem ease jnbeo," " I will Titius to be my heres." Generally all Roman citizens who could make a will could be heredes; but persons could be heredes who could not make a will—slaves, for instance, and others who were not sui juris.
Fraud in the case of wills and other instruments was punished by severe pe nalties under a Lex Cornelia.
The development of the Edictal or Praetorian law at Rome introduced a less formal kind of will. If there were seven proper witnesses and seven seals, and if the testator had the power of disposition both at the time of making his will and at the time of his death, the edict dis pensed with the ceremony of mancipation and gave to the heres or heredes the bo non= possessio. This mode of testa mentary disposition existed under the Republic, and accordingly a man could either make his will by the civil form of mancipatio, or he might make it after the praetorian form with seven seals and seven witnesses, without any mancipatio. The form of testamentary disposition by mancipatio was ultimately superseded by the more convenient prtetorian form. The legislation of Justinian required seven male witnesses of proper age and due legal capacity; and it was sufficient if the testator declared his will orally before these wifnesses.
A Roman will, as already observed, was valid if the testator had a disposing power at the time of making his will and at the time of his death. It follows that his will, though made at any time before his death, was sufficient to dispose of all the property that he had at the time of his death. This rule of law is now esta blished in the case of an English will by the recent act (1 Viet. c. 26) as to real property ; it always applied in the case of an English will to personal property. But an English will is valid if the testa tor subsequently loses his disposing power, as for instance if he become insane. A Roman will was not valid under such circumstances ; and it also became inva lid in other cases.
In order to render a Roman will valid, it was necessary that the heredes sui of a man (his sons and daughters were in the class of heredes sui) should either be appointed heredes or should be expressly excluded from the inheritance. A will which was illegal at the time of being made was testamentnm injustum, that is, "non jure factum," not made in due legal form. A will which was justum might become invalid ; it might become ruptum (broken) or irritum (ineffectual).
A second will duly (jure) made ren dered a former will invalid (ruptum); and it was immaterial whether the second will took effect or not. If it was duly made, it rendered a former will of no effect, and if the second will did not take effect, the testator died intestate.
If a testator sustained a capitis diminu tio after making his will, that is, if he lost any part of his status of a Roman citizen which was essential to give him a full testamentary power, the will became Irritum, ineffectual. A prior will might become Ruptum by the making of a sub sequent will ; and such subsequent will might become Irritum in various ways; for instance, if there was no hems to take under the second will.
Though a will became Ruptum or Irri tum, and consequently lost all its effect by the Jus Civile, it might not be entirely without effect. The bonorum possessio might be granted by the Prretonan edict, if the will was attested by seven wit nesses, and if the testator had a disposing power, though the proper forms required by the Jus Civile had not been observed.
The rule of Roman law which required hercdes sui to be expressly exheredated applied to posthumous children. The word Postumus (from which our word posthumous has come) simply signified " last ;" and a child born after the date his father's will was Postumus. If he was born after the father's death he would also be born after the date of his father's will and consequently would be Postu mus. If a suns heres was born after the making of the will, and was not recog nised as heres or exheredated in due form, the will became Ruptum. This rule of law was thus expressed: "adgnascendo rumpitur testamentum." There were also cases in which a will might become Ruptum by a quasi-adgnatio.