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

1 18 TESTAMENTUM. TESTUDO.
or praeterition, the persons aggrieved mlight have unless tile codicilli were confirmed by a will; and
an Inofficiosi querela. The ground of the coln- this lust be the case to which Pliny refers (E.,
plaint was the allegation that the testator was ii. 16). Acilianus had made Pliny "heres exc
"non sanae mentis," so as to have capacity to parte," but lie had also made codicilli in his own
make a will. It was not alleged that he was handwriting, which as Pliny alleges were void
Furiosuls or Demens, for these were technical words (piro noe scriptis hlbendi), because they were not
which implied complete legal incapacity. The dis- confirmed by the will. Now, as already observed,
tinction was a fine one, and worthy of the subtlety it appears from Gaius (ii. 273), that a person who
of the Jurists, to whom it may be presumed to was appointed heres by a will, might be required
owe its origin. By the legislation of Justinian by codicilli to give the whole hereditas or a part to
no person could maintain a Querela inofficiosi beyond another, even though the codicilli were not conthe degree of brothers and sisters; and brothers firmed by a will. But Pliny is speaking of codicilli
and sisters could only maintain their claim against which were void for want of a testamentary conscripti heredes " who were "'turpes personae." firmation; and this, as we learn from Gaills, is the
The complaint also could only be maintained in case of a legacy given by codicilli which have not
cases where the complaining parties had no other been confilrmed by a will. This confirmation might
right or means of redress. If any portion, how- be either prospective or retrcspective (si in testaever small, was left by the will to the complaining menlo catve'it testator, ut quidq2uid in codicillis scrilp.
party, he could not maintain a Querela inofficiosi, serit, id rsatlr sit, Galius, ii. 270; qiuos novissirnos
and he was only intitled to so much as would make fIcero, Dig. 29. tit. 7. s. 8). This passage of Pliny
uip his proper share. If the judex declared the mas to the confirmation of codicilli by a testament,
testamentum to be Inofficiosum, it was rescinded; has sometimes been misunderstood. It is stated,
but if there were several heredes, the testament (Dig. 29. tit. 7. s. 8), "Conficiuntur codicilli quaWould only be rescinded as to him or them against tuor modis: aut enim in futurum confirmantur aut
whose institution the Judex had pronounced. in praeteritum, aut per fideicommissum testamento
The portion of an hereditas which might be claimed facto aut sine testamento." These four modes are
by the Querela inofficiosi was one-fourth, which referred to in Gaius: the first two are contained in
was divided among the claimants pro rata. (Plin. the words above quoted, Si in testamento, &c.: the
Ep. v. 1; Inst. 2. tit. 18; Dig. 5. tit. 2, De third is the case of the heres institutus being reInofficioso Testamento.) quired to give the hereditas to another person by
The Querela Inofficiosi is explained by Savigny codicilli non confirnati; and the fourth is the case
with his usual perspicuity (Systlem, cc. vol. ii. 1). of a fideicommissusm given by codicilli of a person
127). When a testator passed over in his will who made no other testamentary disposition. It
any of his nearest kinsfolks, who in the case of was a rule of law that codicilli, when duly made,
intestacy would be his heredes, this gave rise to were to be considered (except in a few cases) an
the opinion that the person thus passed over had incorporated in the will at thle time when the will
merited this mark of the testator's disapprobation. was made, a principle which led to various legal
If this opinion xvas unfounded, the testator had done conclusions, vwhich the Roman jurists deduced witll
an unmerited injury to the person, and his remedy their usual precision. (Dig. 27. tit. 7. s. 2.)
was by getting the will set aside, as iLmade under Originally there was probably no particular form
the influence of passion. If thie will was set aside, required for codicilli; but there must have been
the testator was thereby declared to have died in.- evidence of their containing the testator's intention.
testate, and the complainant obtained the hereditas Subsequently witnesses were required and five witwhich was the immediate object of the Querela, or nesses were sufficient for codicilli made in writing,
his share of it. But the ultimate object of the if thle witnesses subscribed their names to the codiQuerela wvas the public re-establishment of the in- cilli. (Cod. 6. tit. 36.) But a man could writhjured honour of the complainant, who in this actionI out writing and in the presence of five witnesses
appeared in a hostile positionIl with respect to the impose a fideicommissuml on his heres. A testaTestator who had brought his character in question. ment which was defective as such, might be efConsequently this action had for its ultimate object fectual as codicilli. lThe power to make codicilli
Vindicta, and the peculiarity of the action consisted wras the same as the power to make a testament.
in the difference between this ultimate object of (Dig. 29. tit. 7. De Jzmre Codicillor2um7; Inst. 2. tit.
the action and the immediate object of it (pro- 25.)
perty), which was merely a means to the ultimlate The subject of Romlian Testaments can only be
object. [VINDICTA.] satistactorily expounded in a large treatise, and it
There is no evidence to shlowv-when the Querela would require to be treated historically. The preInofficiosi was introduced as a mode of setting aside ceding sketch may be useful, anmd generally true,
a will. The phrase Testamentull ITnofficiosum and it affects to be nothing more. (Gaius, ii. 101
occurs in Cicero, and in Quintilian (Inst. O-.. -108; Ulp. lrag. xx.; Inst. 2. tit. 10, &c.; Dig.
x. 2). 28. tit. 1 Cod. 6. tit. 23; Vangerovw, Pandektei,
Codicilli were an informal wvill: they may be &c. ii. ~ 427, &c.) [G. L.]
defined to be a testanlentary disposition of such a TESTIS, a witness. 1. Gt REErI. [MARkind which does not allow any direct universal TYRIA.] 2. ROMAN. [JUSJURANDUMl.]
succession, and, conlsequently, neither the direct TESTU'DO (XEXcOvW), a tortoise, was the nlamo
appointment nor exheredation of a heres, even given to several other objects.
though the codicilli are confirmed by a testa- 1. To the Lyra, because it was sometimes mad e
ment; but he who was appointed heres by a of a tortoise-shell. [LYiRA.]
testament, might be requested by codicilli to give 2. To an arched or vaulted roof. (Virg. Aen. i.
the hereditas to another altogether or in part, even 505; Cic. Brut. 22.) [TEsMsPLvM, p. 1112, a.]
though the codicilli were not confirmed by a Testa- Thus in a Roman house, when the Cavuim Aedium
ment. A legacy could not be given by codicilli, was roofed all over and had no opening or cormn