ROMAN LAW. The Roman testament grew out of 'mancipition! This was originally a sale, in which the price was paid in a certain weight of copper. When the payment of price became sym bolic, the transaction became a conveyance. A mancipation involved the presence of the con veyor and conveyee, a seale-holder, and five wit nesses. The evolution of testament out of manci pation was accomplished as follows. Originally, the estate ([amnia) was conveyed to the in tended heir (emptor faini-litr), on the understand ing that he was not to assert his right until the conveyor's death. Later, a fiduciary conveyee was substituted, who took title to the estate not in his own interest, but in 'commission' (man datela), to dispose of it according to the instruc tions of the conveyor. These instructions (nuneuvatio) were at first given publicly and orally; later, the conveyor produced written and sealed tablets, and declared that these contained his instruction:. To the tablets were then at tached, for identification, the seals of the eon veyee, the scale-holder, and the five witnesses.
It is probable that the conveyee discharged, at this stage in the evolution of testament, the duties of an executor; later, he became, like the seale-hoider, a purely ceremonial person. At the close of the Republican period the praetors ac cepted testamentary tablets hearing the seals of seven witnesses, and gave effect to the disposi tions contained in such tablets, without inquiring whether the forms of mancipation had been ob served: and in the second century of the Empire Dlareus Aurelius enacted that an allegation that there had been no mancipation should not be heard. At this point the substitution of the written, secret, and revocable testament for the oral, public, and irrevocable conveyance was complete; but the ceremony 'with copper and the scales' was long retained 'in imitation of the old The rules governing the Roman testament at the close of the Republican period were very technical. It umst create one or more lines, or
universal suecesso•s, who were to take the whole estate, pay debts and special bequests (legato), and retain the residue. The heir Or heirs, accord ingly, were at once executors and residuary legatees. If the heir was under age, or insane, his guardian acted as executor. If a testator had natural heirs under his household authority (sui, see P.vrai.k Po'l•EsTAs) he could indeed give the inheritance to others, but he must first ex pressly disinherit the sui.
At the older civil law, again, only a Roman citizen of the age of puberty and not under putria potestas (q.v.) could make a testament; and only a person in existence at the time of the testator's death could take as heir. 'Uncertain persons' (like 'the poor') could not be instituted as heirs, nor could juristic person (corpora tions).
Informal dispositions of property in contem plation of death were made possible by the enact ment of Augustus that trust-bequests (fidei corn missa, q.v.) should be enforced whenever the intention of the decedent, could be proved. By such trusts nearly all the technical limitations upon testation were ended. Such trusts were usually (but not necessarily) made in docu ments termed codicils, and they might apply to the whole estate (universal fidei commissa). In the later Empire there was a reaction toward stricter forms. Except in the case of soldiers in the field, who might testate informally, every declaration of last will must assume the form either of a regular testament with seven wit nesses, or of a codicil with five witnesses. Codi cils might be added to a testament, but they could be established independently ab intestato). Justinian introduced several alter native forms of testation for the benefit of per sons who, by reason of their infirmities or their situation at the moment of testation, could not observe the usual forms.