1Papinianus, Definitions, Book I. A will is said not to have been executed in compliance with the law, where the legal formalities are lacking; or to be of no force and effect, where a son who is under the control of his father is passed over; or broken by another subsequent will, when by the terms of the latter, an heir is created, or the birth of a proper heir takes place; or where it does not become operative because the estate is not entered upon.

2Ulpianus, On Sabinus, Book II. Hence, a first will is broken when a second one is properly executed, unless the latter has been executed in accordance with military law, or where the testator stated therein who would be entitled to succeed ab intestato; for, in this instance, the first will is broken by the second, although it may not be perfect.

3The Same, On Sabinus, Book III. Posthumous children who descend through the male sex are disinherited by name, just in the same way as the living children of the testator, unless they break the will by their birth. 1We only style those children “posthumous” who are born after the death of their father; those who are born after the execution of the will are, in accordance with the Lex Velleia, forbidden to break the will, where they are disinherited by name. 2Wherefore, children can be also disinherited either before the appointment of an heir, or between the appointment of several heirs, or between the different degrees of inheritance; for the Divine Marcus decreed that the same rule should be observed with reference to a posthumous child, as in the case of a living one, since no reason for establishing a difference can be given. 3From these matters it is apparent that a difference exists between living children and those subsequently born. The former always render the will illegal, the latter break it, and when they are born do not find themselves disinherited. 4Where a former will by which a posthumous child is disinherited exists, it is established that it is broken, whether the child is born after the death of the testator, or during his lifetime; the first one is broken by the second, and the second by the birth of the posthumous child. 5A posthumous child is also considered to be expressly disinherited where the testator says: “Let any child whosoever that is born to me be disinherited, whether it has been brought forth by Seia, or whether it is still unborn.” If, however, he should say: “Let my posthumous child be disinherited”; and it is born either after the death, or during the life of the testator, it will not break the will. 6However, even though a posthumous child who has been passed over breaks a will by its birth, still, it sometimes happens that only a portion of the will is broken; as, for example, where the posthumous child was disinherited in the first degree, and passed over in the second; for in this instance the appointment in the first degree will be valid, if that in the second is void.

4The Same, Disputations, Book IV. Then, if the heirs appointed in the first degree deliberate as to the acceptance of the estate, those appointed in the second degree cannot obtain it, because the second degree being broken and weakened, the estate can no longer be acquired from that source.

5The Same, On Sabinus, Book III. Where anyone is appointed an heir under some condition, by which a posthumous child is not disinherited, still, the degree is broken while the condition is pending, as Julianus stated. But when someone is substituted, even where the condition upon which the appointment in the first degree depends is not fulfilled, the substituted heir will not be admitted to the succession from which the posthumous heir has not been disinherited. I think, therefore, that if the condition of the appointment under the first degree is complied with, the posthumous heir will have the preference. However, the birth of the posthumous child, after failure to comply with the condition, does not destroy the appointment in the first degree, because the latter becomes null and void. By breaking the will, the posthumous child makes a place for himself, even though the son causes the second degree from which he was disinherited to become valid. Where, however, the posthumous child who was passed over in the first degree and disinherited in the second is born at the time when one of the appointed heirs is living, the entire will is broken; for, by destroying the first degree, he makes a place for himself in the succession.

6The Same, On Sabinus, Book X. Where anyone, after having disinherited his son, dies, leaving his daughter-in-law pregnant, and appoints a stranger his heir under some condition, and while the condition is pending and after the death of the father, or while the heir is deliberating as to whether or not he will enter upon the estate, the disinherited son should die, and a grandson should be born, will this break the will? We say that the will is not broken, as a grandson ought not to be disinherited in this way by his grandfather, who preceded his father in the succession. It is clear that if the appointed heir should refuse to accept the estate, there can be no doubt that this heir would inherit from his grandfather ab intestato. Both of these cases are founded upon good and sufficient reasons, for a posthumous child breaks a will by his birth, where no one took precedence of him at the time of the death of the testator, and he succeeds ab intestato where the succession has not been granted to anyone before him. It is evident that, in this instance, the succession has not been granted to the son, since he died while the appointed heir was deliberating as to his acceptance of the estate. This, however, is the rule only where the grandson was still unborn at the time of the death of his grandfather; for Marcellus says that if he had been conceived after that time, he could not be admitted to the succession either as a proper heir, a grandson, or a cognate, or would be entitled to prætorian possession of the estate. 1Where the father of a grandson who, at the time of the death of the grandfather, was in the hands of the enemy, and died in captivity, the said grandson, by obtaining the succession after the death of his grandfather, breaks the will, because his aforesaid father was not in his way; for, as he died while a captive, he is not considered to have been alive when his grandfather died, and even if the captive father should return, this would render the will of his father illegal, as he had been passed over therein. 2If a grandson was either conceived in his own country or among the enemy, as the right of postliminium is also granted to unborn children, the will will be broken by his birth. 3Therefore, those who succeed to proper heirs do not break the will, whether they are appointed heirs or disinherited in the degree in which the succession is granted, provided that this is valid. 4However, no matter in what way fathers standing first in the succession may cease to be under paternal control, whether through captivity, death, or the infliction of some penalty, their children who succeed them and who are either appointed heirs or disinherited by a will cannot break it. 5A will becomes invalid whenever anything happens to the testator himself; as, for instance, where he loses his civil rights through being suddenly reduced to slavery, for example, where he is captured by the enemy; or where, being over twenty years of age, he permits himself to be sold for the purpose of transacting the business of his purchaser, or to share in his own price. 6Where, however, anyone convicted of a capital crime is condemned to be thrown to wild beasts, or to fight as a gladiator, or some other sentence is imposed which will deprive him of life, his will becomes void, not from the time when he suffered punishment, but from the date of his sentence, for he then at once becomes a penal slave; unless, being a soldier, he is convicted of some military offence, for under such circumstances, it is customary for him to be permitted to make a will, as the Divine Hadrian stated in a Rescript; and I think that he can make one in accordance with military law. On this principle, therefore, as he is allowed, to make a will after his conviction, should one which he had previously executed be held valid, if he was allowed to make it, or should it be considered void on account of the penalty, after it has been made? There can be no doubt that, if he has a right to make a will by military law, and wishes the first will to be valid, he will be considered to have executed it. 7The will of a person who has been deported does not immediately become void, but only after the Emperor has confirmed the sentence, for then he who was condemned loses his civil rights. Where, however, the punishment of a Decurion is concerned, or that of his son or grandson, and the Governor refers the case to the Emperor, I do not think that the convicted party becomes at once a penal slave, although it is customary to incarcerate him for safe-keeping. Therefore, his will does not become void before the Emperor issues his decree that he must suffer the punishment. Hence, if he should die before this is done, his will will be valid, unless he takes his own life; for, by the Imperial Constitutions the wills of those who are conscious of their guilt are void, even though they may die while in possession of their civil rights. But where anyone, through weariness of life, or because he is unable to endure the suffering of illness, or through a desire for notoriety commits suicide, as certain philosophers do, this rule does not apply, as the wills of such persons are valid. The Divine Hadrian also made this distinction with reference to the will of a soldier, in a letter addressed to Pomponius Falco, stating that if anyone belonging to the army preferred to kill himself because he was guilty of a military offence, his will shall be void; but if he does so because he is tired of life, or on account of suffering, it will be valid, and if he should die intestate, his property can be claimed by his relatives, or, if he has none, by his legion. 8All those persons, whose wills we have stated become void because of their condemnation, do not lose their civil rights if they appeal from the decision of the tribunal; and therefore any wills which they may have previously executed do not become void, and it has very frequently been decided they can still make a will. They are not held to resemble those who are doubtful concerning their condition, and have not testamentary capacity, for they are certain of their condition, and they are only uncertain of themselves while the appeal is pending. 9But what if the Governor did not receive the appeal, but delayed the infliction of the penalty until it was confirmed by the Emperor? I think that the party in question would, in the meantime, also preserve his status, and that his will would not become invalid. For (as has been stated in the Address of the Divine Marcus) where an appeal which has been taken by the party directly, or by someone acting for him is not received, the infliction of the penalty must remain in abeyance until the Emperor answers the letter of the Governor and returns his decision together with the letter; unless the accused is a notorious robber, or has been guilty of fomenting sedition, or has perpetrated bloodshed, or where some other good reason exists which can be set forth by the Governor in his letter, and which does not admit of delay, not for the purpose of hastening the punishment, but in order to provide against danger to the community; for, under such circumstances, he is permitted to inflict the penalty and then communicate the facts to the Emperor. 10Let us see where someone has been illegally condemned and the penalty has not been inflicted, whether his will will be invalid. Suppose, for instance, that a decurion has been sentenced to be thrown to wild beasts, will he lose his civil rights, and will his testament become void? I do not think that this will be the case, as the sentence cannot legally bind him. Therefore, where a magistrate finds someone guilty who is not subject to his jurisdiction, his will will not be void, as has been frequently decided. 11The wills of those whose memory is condemned after their death, for example, on account of high treason, or some similar offence, are invalid. 12Ad Dig. 28,3,6,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 563, Note 7.With reference, however, to what we have stated, namely, that the will of anyone captured by the enemy becomes invalid, it must be added that the will regains its validity through the right of postliminium, if the testator should return; or if he dies while in captivity, it is confirmed by the Lex Cornelia. Therefore, where anyone is convicted of a capital crime, and is restored to his civil rights through the indulgence of the Emperor, his will again becomes valid. 13It has been settled that the will of a son under paternal control who has served his time in the army, and has become his own master through the death of his father, is not void; for when a son disposes of his castrense peculium by will, he must be considered as the head of a household, and therefore it is certain that the will of a soldier or a veteran does not become void by his emancipation.

7Ulpianus, On Sabinus, Book X. If a soldier should make a will in accordance with the Civil Law, and appoint an heir in the first degree, which he is entitled to do under military law, and in the second degree should substitute someone as heir which he can do by the Common Law, and should die a year after his discharge, the first degree becomes invalid, and the will commences with the second.

8The Same, On Sabinus, Book XI. It is true that a will is broken by either the adoption or the arrogation of a son or a daughter, just as it is ordinarily broken by the birth of an heir. 1Where a daughter and a grandson are emancipated, this does not break a will, because they are released from paternal control by a single sale.

9Paulus, On Sabinus, Book II. Where a father is taken captive by the enemy, and his son retains his citizenship, the father’s will is not broken by his return.

10The Same, On Vitellius, Book I. Nor does a son returning from captivity break the will of his father through the right of postliminium, which is the opinion held by Sabinus.

11Ulpianus, On the Edict, Book XLVI. Where two wills executed at different times are produced, and each of them is sealed with the seals of seven witnesses, and the last one, having been opened, is found to be blank, that is, without any writing whatsoever, the first will is not broken for the reason that the second one is void.

12The Same, Disputations, Book IV. Ad Dig. 28,3,12 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 563, Note 7.A posthumous child, having been passed over, was born and died during the lifetime of the testator. Although by strict construction of the law, and by the employment of excessive subtlety, the will may be held to be broken, still, if it was properly sealed, the heir who was entitled to the possession of the estate in accordance with the terms of the will will acquire it; as the Divine Hadrian and Our Emperor stated in Rescripts. For this reason the legatees, as well as the beneficiaries of the trust, will be secure in the possession of whatever has been left to them. The same must be said with reference to a will improperly executed, or one which is void, where the possession of the estate was granted to him who could have obtained it ab intestato. 1Ad Dig. 28,3,12,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 631, Note 3.Where a civilian who had already made one will makes another, and provides in the latter that the heir shall be entrusted with the execution of the first will, the first is unquestionably broken. Having been broken, it may be asked whether it should not be valid as a codicil. Since the words of the testator in the second will refer to a trust, undoubtedly all matters therein contained relate to a trust, not only the legacies and the property left to be administered in a fiduciary capacity but also all manumissions, as well as the appointment of an heir.

13Gaius, Institutes, Book II. Those also are included among posthumous children who, by succeeding to the place of proper heirs, through their birth become the lawful heirs of their parents. For instance, if I have a son, and a grandson or a granddaughter born to him, all under my control, as the son takes precedence by a degree in the succession, he alone has the right of a direct heir, even though the grandson and granddaughter, who are his children, are also under my control. If, however, my son should die during my lifetime, or, for any reason whatsoever, should be released from my control, the said grandson and granddaughter will take his place in the succession, and in that way their rights as direct heirs will be acquired, as it were by birth, but my testament will not be broken in this way, just as if I should appoint or disinherit my son as my heir; nor can I legally make a will in such a way that it will become necessary for me to appoint as heir, or disinherit my grandson or my granddaughter, unless my son having died during my lifetime, and my grandson or granddaughter having taken his place in the succession, should break the will, just as is done by birth; and this the Lex Julia Velleia provided for.

14Paulus, Concerning the Assignment of Freedmen. Where disinheritance is expressed as follows: “If a male or female child should be born, let it be disinherited”; and both are born, the will is not broken.

15Javolenus, Epistles, Book IV. A man whose wife was pregnant fell into the hands of the enemy. I ask where a son was born, at what time the will executed by the testator, who was there in the enjoyment of his civil rights, was broken, and if the son should die before the father, whether the testamentary heirs will be entitled to the estate. I answered that I did not think that there could be any doubt, in accordance with the Cornelian Law, which was enacted for the confirmation of the wills of those who died while in captivity, that, if a son was born, the will of a testator who was in the hands of the enemy would be broken. It follows, therefore, that the estate will belong to no one by this will.

16Ad Dig. 28,3,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 2.Pomponius, On Quintus Mucius, Book II. When in the second will we appoint an heir who is living, whether this is done either absolutely or conditionally, and the condition can be fulfilled even though this may not take place, the first will is broken. It makes a great deal of difference, however, what the imposed condition was; for everyone that can be conceived has reference either to the past, the present, or the future. One is imposed with reference to the past, for instance: “If Titius has been consul”; and if this condition is true (that is to say if Titius has actually been consul), the heir will be appointed in such a way that the first testament will be broken, for he becomes the heir for this reason. If, however, Titius has not been consul, the former testament will not be broken. Where the condition imposed with reference to the appointment of an heir relates to the present time, as for instance: “If Titius is consul”; the result will be the same, so that, if he is consul, the party can become the heir, and the former testament will be broken. But if he is not consul, the party cannot become the heir, and the former testament will not be broken. If conditions are imposed with reference to a future time, and they are possible and can be fulfilled, even though they may not take place, they cause the former will to be broken. Where, however, they are impossible, as, for example, “Let Titius be my heir if he has touched the sky with his finger”, it is held that this condition is just as if it had not been prescribed, as it is impossible.

17Papinianus, Opinions, Book V. Where a son who was under his father’s control has been passed over, no manumissions or legacies granted by the will are valid, if the son who was passed over does not claim his share of the estate from his brothers. If, however, he refuses to accept any of his father’s estate, although, in accordance with the strict interpretation of the law, the will may be considered void, still, the wishes of the testator will be complied with on the principles of justice and equity.

18Scævola, Questions, Book V. Where anyone who has been appointed heir by a testator is arrogated by him, it can be said that he has done enough for him, because before he adopted him, his appointment was merely that of a stranger.

19The Same, Questions, Book VI. If Titius and myself should be appointed heirs, and by our appointment a posthumous child is disinherited, or one is not disinherited on account of our substitution as heirs, and Titius should die, I cannot enter upon the estate; for the will is broken on account of the appointment of a person by which the posthumous child is disinherited, and who is called to the succession as a substituted heir, by whom the posthumous child is not disinherited. 1Where, however, Titius and myself are substituted for one another, even though the posthumous child may not have been disinherited in that part of the will which mentions the substitution, and Titius either dies, or rejects the estate, I think that I can enter upon and become the heir of all of it. 2However, in the first case, even though Titius may be living, I cannot enter upon the estate without him, nor can he do so without me, for the reason that it is uncertain whether the will may not be broken by one of us refusing to accept, and therefore we should both enter upon the estate together.

20The Same, Digest, Book XIII. Lucius Titius, while of sound mind and in good health, made a will in the proper manner, and afterwards became ill, and while insane mutilated the instrument. I ask whether the heirs appointed by the said will can enter upon the estate. The answer was, that in accordance with the facts stated, they will be prevented from doing so.