It has been mentioned that, in order to make a Roman will valid, it must appoint or institute a heres. The heres was a person who repre sented the testator, and who paid the legacies which were left by the will. He stood in the place of the familire emptor, or formal purchaser of the property in the old form of will. A heres might be appointed in such words as follow :—" Titius heres esto " (" let Titius be my heres "), or " Titium heredem esse jubeo " ("I will Titius to be my heres "). Generally, all Roman citizens who could make a will could be heretics; 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 penalties under a Lex Cornelia.
The development of the Edictal or Prretorian law at Rome intro duced 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 masking his will and at the time of his death, the edict dispensed with the ceremony of mancipation and gave to the hcres or heredes the bonorum possessio. This mode of testamentary 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 pratorian form, with seven seals and seven witnesses, without any mancipatio. The form of testamentary disposition by mancipatio was ultimately superseded by the more convenient prxtorian form. The legislation of Justinian required several male witnesses of proper age and due legal capacity ; and it was sufficient if the testator declared his will orally before these witnesses.
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. 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 sup 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 testamentum 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 rendered 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 the testator died intestate.
If a testator sustained a capitis diminutio after making his will,— that is, if ho 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 subsequent will ; and such subsequent will might become irritum in various ways ; for instance, if there was no heres to take under the second will.
Though a will had become ruptum or irritum, 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 Prxtorian law, if the will seas attested by seven witnesses, 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 heredes sui to be expressly exheredated applied to posthumous children. If a suns heres was born after the making of the will, and was not recognised as heres or exhere dated in due form, the will became ruptum. This rule of law was thus expressed : " aclgnaseendo rumpitur testamentum." There were also cases in which a will might become ruptum by a quasiadgnatio.
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 bereditas, or a portion of it, to his own children or to others who were in a near relation to him ; and when there was no sufficient reason for passing them by, the person so injured might have an action, called Inofficiosi Querela. The persons who could maintain this action were particularly defined by the legislation of Justinian. If the testa mentum was declared by the competent authorities to bo inofficiosum, it was rescinded 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 Heutiges 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 testator's disapprobation. If this was not so, it was considered that the testator had by his will done them a wrong, and the object of the action was to get redress by setting the will aside. The main object, however, was the establish ment of the complainant's character, to which the obtaining of part of the testator's property was a subsidiary means. The expression Testa mentum Inofficiosum occurs in Cicero and in Quintilian ; but it is not known when the Inofficiosi Quercla was introduced.
A Roman codicil (Codieili, for the word is not used in the singular number till a late period under the Empire) was a testamentary dispo sition, but it had not the full effect of a will. Codicils were, in fact, useless unless there was a will prior or subsequent, which confirmed them either retrospectively or prospectively. (Gains, ii. 270 ; Dig.; 29, 7, 8.) The subject of Roman wills is of great extent, and it involves ques tions of considerable difficulty. The principal authorities have been mentioned in this article, to which may be added Ulpian, 'Fragments,' tit. 20; ' Dig.; 23, tit. ], &c. ; 29, tit. 1, &e. ; ' Cod.; 6, tit. 23.)