Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

TESTAMENTUM. TESTATMIENTUM. 1113
the Romans sent to give the Carthaginians their the Furiosus, because he had not intellectual capachoice of peace or war, they sent two tesserae, one city to declare his will (testarti) about his property;
marked with a spear, the other with a CXDUCEUS, and the Prodigus, because he was under a legal
requesting them to take either the one or the restraint, so that he had no commercium, and conother. (Gellius, x. 27.) sequently could not exercise the formal act of the
From the application of this term to tokens of familiae mancipatio. (Ulp. Frag. tit. 20. s. 13;
various kinds, it was transferred to the wordl used CURATOR; IMPUBES.) As to the testament which
as a token among soldiers. This was the tesseral a man has made before he becomes Furiosus, see
silitiaris, the auv'7rnoa of the Greeks. Before join- Dig. 28. tit. 1. s. 20. ~ 4.
ilg battle it was given out and passed through the Women had originally no testamentifactio, and
ranks as a method by which the soldiers might be when they did acquire the power, they could only
able to distinguish friends from foes. Thus at the exercise it with the auctoritas of a Tutor. Of course
battle of Cunaxa the word was "Zeus the Saviour a daughter in the power of her father, whether she
and Victory," and on a subsequent engagement by was unmarried or married, and a wife in mann
the same troops " Zeus the Saviour, Heracles the could never make a will. The rules therefore as
Leader." (Xen. Anal. i. 8. ~ 16, vi. 3. ~ 25.) The to a woman's capacity to make a will, could apply
soldiers of Xeuophon used a verbal sign for the only to unmarried women after the death of their
same purpose when they were encamped by night father and to widows who were not in the power
(vii. 3. ~ 34). Aeneas Tacticus (c. 24) gives various of a father. This subject requires explanation.
directions necessary to be observed respecting the Cicero (Top. 4) observes " if a woman has made
word. Respecting the tessera or watchword in the a will, and has never undergone a capitis diminutio,
Roman camp, see CASTRA, p. 251, a. LJ. Y.] it does not appear that the Bonorum Possessio canl
TEST''A. [FIcTILE.] be granted in pursuance of such will according to
TESTAMENTUM is " mentis nostrae justa the Praetor's Edict; for if it could, the Edict must
contestatio in id solemniter facta ut post mortemn give the Possessio in respect of the wills of Servi,
nostram valeat." (Ulp. PFrag. tit. 20; comp. Ulp. Exules, and Pueri." Cicero means to say that if
Dig. 28. tit. 1. s. 1, where he has " justa senten- a woman made a will without having sustained a
tia.") In this passage the word Justa means capitis diminutio, the will could have no effect at
" jure facta," " as required by law." The word all: and he derives his argument " ab adjunctis,"
Contestatio is apparently used with reference to the for if such a will could have any effect, then the
origin of the term Testamentunm, which is to be re- wills of other persons, who had not the testamentiferred to " Testari," which signifies " to make a factio, might be effctual so far as to give tile
solemn declaration of one's will." Gellius (vi. 12) Bonorum Possessio. It is not a logical inference
properly finds fault with Servius Sulpicius for from the language of Cicero that a woman who
saying that the word is compounded "a rentis had sustained a capitis diminutio could make a
contestatione." The person who made a Testa- will; but this is the ordinary meaning of such
mentum was Testator. (Sueton. ANer. 17; Dig. language and it appears to be his. Consistently
28. tit. 3. s. 17.) with this, Ulpian says (Frag. tit. 20. s. ]5), " woIn order to be able to make a valid Roman will, men after their twelfth year can mak6 a will wils
the Testator must have the Testamentifactio (Cic. the auctoritas of a Tutor, so long as they are in
ad Faio. vii. 21), which term expresses the legal tutela;" and the comment of Boethius on the pascapacity to make a valid will: the word has also sage of the Topica clearly shows that he understood
another signification. [HERES, p. 598, b.] The it in this way. A woman then could make a will
testamentifactio was the privilege only of Roman with the auctoritas of her Tutor and not without.
citizens who were patresfamilias. The following Now if a woman was in Tutela Legitima, it might
persons consequently had not the testamentifactio: be correctly said that she could not make a will
those who were in the Potestas or Manus of an- for, if she was Ingenua, the tutela belonged of
other, or in Mancipii causa, as sons and daughters, right to the Agnati and Gentiles, and if she was a
wives In manu and slaves; but with respect to his Liberta, it belonged to the patron. In these cases
Castrense Peculium [PATR1A POTESTAS] a filius- a woman could indeed make a valid will with the
familias had the privilege of testamentary dispo- consent of her Tutores, but as her Tutores were
sition: Latinli Juniani, Dediticii: Peregrini could her heirs in case of intestacy, such consent would
not dispose of their property according to the seldom be given, and though a woman under such
form of a Roman will: a person who was doubtful circumstances might be allowed to make a will, it'
as to his status, as for instance if his father had may be assumed that it was a circumstance altodied abroad and the fact was not ascertained, gether unusual, and thus the rule as to a woman
could not make a testament: an Impubes could in Tutela Legitima, as above stated, might be
not dispose of his property by will even with the laid down as generally true. The passage of
consent of his Tutor; when a male was fourteen Cicero therefore does not apply to the Tutela
years of age, he obtained the testamentifactio, and Legitima, but to something else. Since the disa female obtained the power, subject to certain covery of the Institutes of Gaius the difficulty has
restraints, on the completion of her twelfth year: been cleared up, though it had been solved in a
muti, surdi, furiosi, and prodigi " quibus lege satisfactory manner by Savigny before the pubbonis interdictum est" had not the testamenti- lication of Gaiuns. (Beytrayg z1ur Geschichte der
factio; the reasons why these several classes of Geschlechtstutel, Zeitschrift, vol. iii. p. 328.)
persons had not the testamentifactio illustrate the A woman could make a " coemptio fiduciae
Roman mode of deducing legal conclusions from causa," in order to qualify herself to make a will;
general principles: -the Mutus had not the for "at that time women had not the power of
Testamentifactio, because he could not utter the making a will, except certain persons, unless they
words of Nuncupatio; the Surdus, because he made a co-emptio and were remancipated and
could not hear the words of the Emtor familiae; manumitted; but on the recommendation of Ha