A testament was called Inofficiosum when it was made in due legal form, but not "ex officio pietatis.' Thus when a man did not give the hereditas or a por tion of it to his own children or to others who were near of kin to him, and when there was no sufficient reason for passing them by, the persons so injured might have an action called Inofficiosi Querela. The persons who could maintain this ac tion were particularly defined by the legislation of Justinian. If the Testa mentum was declared by the competent authorities to be Inofficiosum, it was re scinded to the amount of one-fourth of the hereditas, which was distributed among the claimants.
The ground of the Inofficiosi Querela is explained by Savigny (System des Ha agen Rom. Rechts, ii. 127, &c.). When the testator in his will passed by persons who were his nearest kin, it was presumed that such persons had merited the testa tor's disapprobation. If this was not so, it was considered that the testator had by his will done them a wrong, and the ob ject of the action was to get redress by setting the will aside. The main object, however, was the establishment of the complainant's character, to which the ob taining of part of the testator's property was a subsidiary means. The expression Testamentum Inofficiosum occurs in Ci cero and in Quintilian ; hut it is not known when the Inofficiosi Querela was introduced.
A Roman codicil (Codicilli, for the word is not used in the singular number till a late period under the Empire) was a testamentary disposition, but it had not the full effect of a will. A heres could not be appointed or exheredated by codi cilli; but codicilli were effectual so far as to bind a heres, already appointed by a will, to transfer a part or the whole of the hereditas to another. Codicils were in fact useless unless there was a will prior or subsequent, which confirmed them either retrospectively or prospec tively. (Gains, ii. 270; Dig. 29, tit. 7, s. 8 ; Pliny, Ep. ii. 16, which has been sometimes misunderstood.) Codicilli were originally informal writings ; it was only necessary to prove that they were by the testator. The later legislation required codicilli which were in writing to have five witnesses, who subscribed their names to the codi cilli.
The subject of Roman wills is of great extent, and it involves questions of con siderable difficulty. The principal au thorities have been mentioned in this article, to which may be added Tilpian, Fragmenta, tit. 20 • Diy. 28, tit. 1, &c.; 2.1, tit. &c. ; Cod. 6, tit. 23; Das Tes tament des Dasumius, Zeitschrilif. GescA. Rechtsw., article by Rudorff on a frag mentary inscription which contains a Roman will. The date of the will is A.V.C. 862 or A.D. 109, in the twelfth year of Trajan.
WILL. (Scotland.) The right of be
quest in Scotland is confined to moveable or personal property. It does not extend to heritable or real property—which coin• prehends lands and tenements, fixtures, those appurtenances of a family mansion (such as the pictures, plate, and library) which are called " heirship moveables," the machinery in mines and manu factories, the stock on farms, and every description of security or other right over any of these kinds of property. Settlements may be made of heritable property in the manner which will be described below, but it is a principle of the greatest importance, and one the neglect of which is often productive of the most serious consequences, that no such settlement can be made in the form of a will. All persons of sound mind above the age of puberty (14 in males, and 12 in females) may execute wills ; and persons under guardianship, as wives and minors who have curators may do so without the consent of their guardians. Until very lately the will of a bastard was ineffectual, and the moveable goods of such a person, lapsing to the crown on his death, were distributed by a gift in exchequer ; but this peculiarity has been abolished by 6 & 7 Wm. IV. C. 22. A verbal or "nuncupative " will, if uttered in the presence of two witnesses who bear testimony to it, is valid to the extent of a hundred pounds Scots, or 8/. 6s. 8d. sterling ; and if the bequest should ex ceed that sum, the legatee may recover to the extent of the hundred pounds Soots. A will, sufficiently formal in all points to prove its terms and its date, must be executed in the following man ner :—The granter's usual signature must be given at the end, and, if there be more than one sheet, on each sheet: the usual practice is to sign each page. Any inter polation in the margin must have the christened name or the initial letter of it above, and the surname or its initial letter below. He must either sign in the presence of, or show and acknowledge Ws subscription to, two witnesses, who must be males, above fourteen years old. The witnesses sign the deed at the end, each putting after his name the word "witness." The will must terminate with "a testing clause," setting forth that the granter has signed the deed in presence of the witnesses, who are named and so designed as to be distinguishable from other persons, at a certain place on a certain day. The testing clause must contain the name and description of the writer of the deed, the number of pages it consists of, the number of words written in erasure or interlined, and the number of marginal notes. There are some of these formalities of which the absence is fatal to the deed—others in which it will throw the onus probandi on the holder.