Qvibvs Modis Testamenta Infirmentvr. (2)

If after making his will a man adopts as son either a person sui juris by means of the people (in comitia) or one subject to the power of an ascendant by means of the Praetor, his will is inevitably revoked as it would be by the subsequent birth of a self-successor.

The same happens if after making his will the testator receives a wife into his hand, or marries a person who is in his hand, as she thereby acquires the status of a daughter and becomes his self-successor.

Nor does it avail to prevent the rupture that such a wife or adopted son was in that will instituted heir, for as to disinheriting them, not having been self-successors when the will was made, the question could not then have been material.

So a son manumitted after the first or second sale reverts into the power of his father and revokes a previous will, nor does it avail that he is therein appointed heir or disinherited.

The same rule formerly held of the son in whose behalf the decree of the senate allows proof of error, if he was born of an alien or Latin mother who was married in the mistaken belief that she was a Roman: for whether he was appointed heir by his father or disinherited, and whether the error was proved in his father’s life or after his death, in every case the will was revoked as by the subsequent birth of a self-successor.

§ 143. Now, however, by a recent decree of the senate, made on the proposition of the late emperor Hadrian, if the father is alive when the error is proved, the old rule obtains and the will is in every case avoided; but when the error is proved after the father’s death, if the son was passed over in silence, the will is revoked; but if he was appointed heir or disinherited the will is not revoked; in order that carefully executed wills should not be rescinded at a period when reexecution is impossible.

§ 144. A subsequent will duly executed is a revocation of a prior will, and it makes no difference whether an heir ever actually takes under it or no; the only question is, whether one might. Accordingly, whether the heir instituted in a subsequent will duly executed declines to be heir, or dies in the lifetime of the testator, or after his death before accepting the inheritance, or is excluded by expiration of the time allowed for deliberation, or by failure of the condition under which he was instituted, or by celibacy as the lex Julia provides; in all these cases the testator dies intestate, for the earlier will is revoked by the later one, and the later one is inoperative, since no one becomes heir under it.

§ 145. There is another event whereby a will duly executed may be invalidated, namely, the testator’s undergoing a loss of status: how this may happen was explained in the preceding book.

§ 146. In this case the will may be said to be rescinded; for although both those wills that are revoked and those that are not from the first made in proper form may be said to be rescinded, and those that are made in proper form but subsequently annulled by loss of status may be said to be revoked, yet as it is convenient that different grounds of invalidity should have different names to distinguish them, we will say that some wills are not made in proper form, others made in proper form are either revoked or rescinded.

A will may be void from the first because it is not duly made—testamentum nullum, injustum, non jure factum—or it may be avoided by some subsequent circumstance—testamentum ruptum §§ 138, 144, irritum § 146, destitutum—or it may be upset as being unduteous—inofficiosum. A will is destitutum, ‘cum ex eo nemo heres extiterit,’ § 144. A will may be revoked or ruptured by a subsequent will, but not by a codicil. The tearing up or destruction of a will does not revoke it, unless this is done by the testator ‘animo revocandi.’ See § 151, comm. The innovations of Justinian changed the effects of adoption. Under his enactment, if a child is adopted by an ascendant the old rules obtain; but a person adopted by a stranger only acquires rights in the adoptive family in case of the adopter’s intestacy, and therefore need not be instituted or disinherited by the adopter; he retains, however, his rights in his natural family, and therefore must be instituted or disinherited in the will of his natural parent. 1 §§ 97-107, comm.

By English law the only circumstance by which a will is avoided (besides revocation, cancellation, execution of a later will) is the marriage of the testator, and this operates universally, irrespectively of the birth of children. Marriage without manus, which was usual in the time of Gaius, had no effect on a will.

This was reversed before the time of Justinian, for we find in Dig. 28, 3, 18 that the institution of the future adoptive son saves a will from being ruptured by adoption. Indeed, considering that the object of the lex Vellaea was to save wills from rupture, we may be surprised that the extension of its provisions from the natural postumi to the artificial postumi or quasi postumi had not been established in the days of Gaius.

Cf. 1 §§ 132-136.

As to erroris causae probatio see 1 § 67.