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

1114 TESTAMENT UM. TESTAMENTT UMl.
drian the senate made the ceremony of coemptio except such as were excepted by a Senatuseconunnecessary for this purpose." (Gaius, 115, a.) sultum and Imperial Constitutions, such as Jupiter
The coemptio was accompanied with a capitis Tarpeius, Apollo Didymaeus, Mars in Gallia,
diminutio, alid this is what Cicero alludes to in the Minerva Iliensis, Hercules Gaditanus, and others
passage of the Topica. [MATRIaMONlum (RbMAN).] enumerated by Ulpian (Frag. tit. 22. s. -6): a
A woman who came in manum viri had sustainIed a Postumus alienus could not be made a heres, for
capitis diminutio, but it must not be inferred from he was an incerta persona: it is a disputed questhis that if she became a widow she could make a tion whether, according to the old law, women
will. The Capitis dininutio of Cicero means that could be made heredes; but the question concerns
the will must be made with the auctoritas of a only those who were sui juris, as to whom there
tutor. Now if the husband died, when the wife seems no sufficient reason why they could not be
had been in mann, aced he appointed no tutor for made heredes; the capacity of women to take
her, she was in the legitima tutela of her nearest under a will was limited by the LEX VOCONIA:
agnati, who would be her own. children and step- unmarried persons and persons who had no children
children, if she had any. But the tutela legitima in were limited as to their capacity to take under a
such a case would seem something unnatural, and will by the Papia Poppaea Lex. [LEx JULIA et
accordingly the magistratus would give a tutor to PAPIA POPPAEA.]
the woman; and such a tutor, as he had no in- The first question as to the validity of a will wasterest in the woman's property, could not prevent the capacity of the testator: the next question was
her from making a will. The husband might by as to the proper observance of the forms required
his will give the wife a power to choose a Tutor by law, " except in the case of soldiers, who, in
(tutoris optio), and such a Tutor could not refuse consideration of their little acquaintance with such
his consent to the woman making a will; for in. matters, were allowed to make their wills as they
stead of the woman being in the potestas of the pleased or as they could." (Gaius, ii. 114.) This
tutor, he was in the potestas of the woman, so far remark of Gains seems to refer to the Imperial
as to be bound to assent to her testamentary dis- period,.
positions. (Compare Liv. xxxix. 19; Cic. pro' As to the Form of wills, Gaius (ii. 101) and.iafluren. c. 17; Gaius, i. 150.) Ulpian (Frag. tit. xx.) are now the best authorities.
The case of Silius (Cic. ad PFass. vii. 21) may Originally there were two modes of making
be a case of a woman's making a will, without the wills; for people made their wills either at Calata
auctoritas of a tutor, for it appears that a woman Comitia, which were appointed twice a year for
(Turpilia) had disposed of property by will, and the making of wills; or they made wills in proServius Sulpicius was of opinion that this was not ciCt2u, that is, when they were going to battle; for
a valid will, because the will-maker had not the an army in movement and under arms is Procinctus.
testamentifactio. There may however have been A third mode of making wills was introduced,
other reasons why the will-maker had not the which was effected 9er' aes et libram1n, whence the
testamentifactio, than the want of a capitis di- name of Testamenturn per aes et libram. If a man
minutio (in the sense of Cic. Top>. 4), and con- had neither made his will at Calata Conmitia nor In
sequently the opinion of those critics who refer procinctu, and was in imminent danger of death,
the case mentioned in this letter to the principle he would mancipate (mancipio dabat) his Familia,
of the Capitis diminutio is not a certain truth. that is, his Patrimonium to a friend and would tell
The following references may be consulted as to him what he wished to be given to each after his
this matter: Cic. pro Caecin. 6. 25, pro PZlace. 35, death. The old form of making a will per aes et
pro Msuren. 12, ad Att. vii. 8; Liv. xxxix. 19; libram was this. The Famniliae eetor, that is the
Gaius, i. 150, &c. person who received the Familia by mancipation,
Libertae could not make a testament withlout the filled the place of heres, and accordingly the testator
auctoritas of their patronus, except so far as this instructed him what he wished to be given to each
rule was altered by enactments; for they were in after his death. In the time of Gaius the practice
the legitima tutela of their patronus. Libertae, was different. One person was instituted heres
who had a certain number of children, could make (oeres testanzento instituitur),who was charged with
a will without the auctoritas of their patronuss. the payment of the legacies, or, as it is expressed
[PATRONUS.] in the phraseology of the Roman Law, "a quo
The Vestal Virgins had no tutor, and yet they etiam legata relinquebantur; " and another person
could make a Testament. The Twelve Tables re- was present as familiae emtor from a regard to tie
leased them from all tutela "in honorem sacer- old legal form. The mode of proceeding was this.
dotii." (Cic. de Rep. iii. 10; Gaius, i. 145.) The testator, after having written his will (tabulae
In order to constitute a valid will, it was neces- testamlenti), called together five witnesses, who were
sary that a heres should be instituted, which might Roman citizens and puberes, and a libripens, as
be done in such terms as follow: - Titius heres in the case of other mancipationes, and mancipated
esto, Titium heredem esse jubeo. [HeREs (Ro- his familia to some person in compliance with legal
MlAN.)] forms (dices cazzsa). The words of the Familiae
All persons who had the commercium could be emtor (Gaius, ii. 104) show clearly the original
heredes; slaves also and others who were not sui nature of the transaction: " Familiam pecnniamque
jnris could be made heredes, but they could not tuam endo mandatam tutelam custodelamque meam
take for themselves. [HiERES; SERVUS, p. 1037.] recipio eaque quo tu jure testamentum facere possis
But there were many classes of persons who could secundum legem publicam hoc aere (aeneaque libra)
not be heredes: Peregrini, who had not received esto mihi emta." (As to the reading of this pasthe commercium: persons who were imperfectly sage, see Puchta, Ilnst. iii. ~ 306, note g.) The
described: Juristical persons or universitates, ex- Emtor then struck the scales with a piece of money
cept by their liberti, a privilege granted by a which he gave to the testator as the price of the
Senatusconsultum: Gods, or the temples of Gods, Fanlilia. Then the testator taking the will in his