Testamenti Factio. (2)

But a senatusconsult under the late emperor Hadrian, as already mentioned (1 § 115 a), made coemption unnecessary, and permitted women to make a will on attaining 12 years of age, only requiring their guardian’s sanction if they were still in a state of pupilage.

Women, then, are in a better legal position than males, for a male under 14 years of age cannot make a will, even with his guardian’s sanction, but a female acquires testamentary capacity as soon as she is 12 years old.

Accordingly, to determine the validity of a will, we must first ascertain whether the testator had testamentary capacity; next, if he had, whether he conformed to the requisitions of the civil law in its execution, with this reservation, that soldiers, on account of their extreme ignorance of law, as was mentioned, are allowed to make their wills in any way they like and in any way they can.

On the lost leaf of the Veronese codex Gaius proceeded to mention the classes who were incompetent to make a will. Among these would be the filiusfamilias, who could only dispose of his peculium castrense. Cf. Inst. 2, 12; Ulp. 20, 10; Epit. 2, 2, 1.

Testamenti factio is a term applied, (A) to the Testator, Testamenti factio activa; (B) to the object of his bounty, Testamenti factio passiva; (C) to the witnesses. Let us consider it in each of these applications.

(A) Testamenti factio activa sometimes comprehends all the conditions (physical included) of testamentary capacity, and then it excludes children below the age of puberty and lunatics: but the proper meaning of testamenti factio is the qualification by Status for mancipatio, and consequently for the mancipatory will: that is to say, it is equivalent to Commercium, and therefore is ascribed to all cives, all Latini, and all aliens who have received a grant of commercium.

To make a will, however, a testator must have not only personal capacity, but he must also have property to leave. This latter condition is necessarily wanting to the Filiusfamilias and to the Latinus Junianus: in their case, therefore, Testamenti factio does not mean capacity of being testator, but of playing some other part in the mancipatory will; i. e. of being heir, or legatee, or witness.

The testator’s capacity is required at two periods: at the time of making the will and at the time of the testator’s death. The strict civil law also required the continuance of capacity during the interval between these dates: but the praetor disregarded any intervening incapacity (capitis diminutio minima), and, notwithstanding such an event, gave the will efficacy by granting to the heir, not the civil hereditas (which was beyond his power), but juxta-tabular possession (bonorum possessio juxta or secundum tabulas), §§ 145-147, comm., Ulpian 23, 6. Dig. 37, 11, 1, 8 Exigit praetor ut is cujus bonorum possessio datur utroque tempore jus testamenti faciendi habuerit, et quum facit testamentum et cum moritur. . . . Sed si quis utroque tempore testamenti factionem habuerit, medio tempore non habuerit, bonorum possessio secundum tabulas peti poterit.

Two other cases of incapacity were cured by the principle of postliminy and the lex Cornelia testamentaria: if a testator suffered capitis diminutio maxima by falling into the hands of the enemy, when he returned from captivity his will reacquired validity by the operation of postliminy: if he never returned his will obtained validity by the fiction that he died a moment before his capture. Dig. 28, 3, 6, 12 Quatenus tamen diximus ab hostibus capti testamentum irritum fieri, adjiciendum est postliminio reversi vires suas recipere jure postliminii, aut si ibi decedat, lege Cornelia confirmari. Dig. 49, 15, 18 In omnibus partibus juris, is, qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est. Ulpian, 23, 5.

The physical conditions of testamentary incapacity (infancy, lunacy) are only critical at the date of making the will.

(B) The Honoratus or the recipient of the testator’s bounty, whether heres or legatarius, required testamenti factio passiva, which like testamenti factio activa meant Commercium or capacity of taking part in mancipatio. Accordingly both a filiusfamilias and a Latinus could be heres or legatee (for the limitation, however, of the capacity of Latinus Junianus by the lex Junia see below). This capacity must exist at three periods (tria tempora): the making of the will, the death of the testator, and the acquisition of the succession by the heres (aditio). The interval between the making of the will and the death of the testator was immaterial, Inst. 2, 19, 4, Dig. 28, 5, 60, 4. The interval between the death of the testator and the aditio of the heres was material, because on the first heres institutus becoming incapable the inheritance would be instantaneously delated (offered for acceptance) to the heres substitutus or to the heres ab intestato.

The looking to the capacity of Honoratus at the date of making the will as well as later, though apparently based on no motives of testamentary policy, but only due to the mancipatory form of the primitive will, which was ostensibly a mancipatio inter vivos, i. e. a disposition taking effect in the lifetime of the mancipator, was retained in Justinian’s legislation after wills had lost their mancipatory form.

In respect of Honoratus it is necessary to distinguish institutio from acquisitio (aditio); and testamenti factio passiva, competence for institution, from capacitas or jus capiundi, competence for acquisition. Testamenti factio passiva was required at the date of the making of the will; and in its absence a disposition was deemed to be unwritten (pro non scripto habetur); and the property disposed of went by Accretio to the other heredes scripti. Capacitas, in its distinctive sense, was only required at the date of acquisition; and in its absence the unacquired property became caducous, and devolved in part or in whole to persons fulfilling certain conditions or to the state, as determined by the laws of caducity.

Incapaces, or persons who, from want of capacity to take, forfeited part or the whole of the testator’s bounty, comprehended:

(1) Latini Juniani, who were made incapable by the lex Junia, 1 § 23, 2 §§ 110, 275. Cf. Ulpian, 17, 1.

(2) The unmarried (caelibes) were totally, and the married but childless (orbi) were made partially incapable by the lex Papia Poppaea.

(3) Husband or wife (vir et uxor), who by the same law could only take, as between one another if they had no children, one tenth of a heritage, and another tenth for every living child by a former marriage: further, another tenth for a common child that lived to the day of naming (nominum dies), or as Mommsen (Staatsr. 3, 202) would read the MS. of Ulpian, after the ninth day (nono die), or two tenths for two such children, but not more. In addition to their tenth, the husband or wife who were childless might have the usufruct of a third part, and, if they had had children, the property in a third, Ulpian, 1, 15.

These disqualifications were not recognized in Justinian’s legislation: so that at that period the distinction between capacitas and testamenti factio passiva had lost much of its importance. We find, however, under Justinian the penalty of forfeiture (ereptio, ablatio) for Indignitas. Indigni were persons deemed on various grounds unworthy of the testator’s bounty. The devolution of the property intended for them followed different rules from those which governed other cases of Incapacity. See § 151, comm.

(C) Testamenti factio was further applied to designate the qualification of the witnesses to a will. This was only required to exist at one period, the date of the execution of the will.

By English law, the age at which a person was competent to make a will was formerly the same as by Roman law, namely, 12 years for females, 14 years for males; but now, by 1 Vict. c. 26, no one is competent to make a will before attaining 21 years of age.