Testamenta quemadmodum aperiuntur inspiciantur et describantur
(In What Way Wills Should Be Opened, Examined, and Copied.)
1Gaius, On the Provincial Edict, Book XVII. The Prætor promises that he will grant the privilege of examining and copying a will to all who desire to inspect one or copy it. It is plain that he will grant this permission to anyone who desires it either in his own name or in that of another. 1Ad Dig. 29,3,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 414, Note 12.The reason for the adoption of this Edict is plain; for one cannot, without judicial authority, carry out the provisions of a will, nor can the truth be ascertained by the court in those controversies which arise out of the interpretations of wills, except by the examination and investigation of the language contained therein. 2Where anyone refuses to acknowledge his seal, this does not prevent the opening of a will, but it becomes suspicious for this reason.
2Ulpianus, On the Edict, Book L. The instrument containing the provisions of the will does not belong to one person, that is to say, to the heir, but it is the property of all those to whom anything has been bequeathed; and, indeed, it is rather a public document. 1That is properly said to be a will which is legally perfect; however, we also improperly call certain papers wills which are forged, illegal, void, or broken, and we are also accustomed to designate as wills such as are defective. 2It is held that whatever has been done with reference to a will is subject to the same rules as the will itself, no matter upon what material it has been written; provided that it contains the last wishes of the deceased, and the will itself, as well as the substitution, is embraced in the Edict. 3Where anyone desires to produce several wills, authority to produce them all should be granted. 4If any doubt should exist whether the person whose will someone desires to have examined or copied is living or dead, it must be held that the Prætor shall decide this after proper investigation, so that if it is proved that the testator is living, he shall not permit the will to be examined; 4aotherwise, he can allow the applicant to examine the writing, the seals, and anything else belonging to the instrument which he may desire to inspect. 5The examination of a will also includes the perusal of the same. 6The Prætor does not permit the date of the will or the name of the Consul under whose administration it was drawn up to be copied or examined, in order to avoid opportunity for fraud; for even the examination of these may furnish material for the perpetration of forgery. 7Can the Prætor order that power to examine or copy a will be accorded without delay, or shall he grant time for its production to the person having possession of the same if he wishes it? The better opinion is that he should grant a certain time, dependent upon the difficulty of communication, and the distance of the place. 8If anyone does not deny that he has possession of a will, but will not allow it to be examined and copied, he should, by all means, be compelled to do so. If, however, he denies that the will is in his possession, it must be said that recourse should be had to the interdict which provides for the production of wills.
3Gaius, On the Provincial Edict, Book XVII. The heir is, nevertheless, entitled to an action for the recovery of the will, just as for property belonging to the estate, and on this account he can bring an action to compel the production of the will.
4Ulpianus, On the Edict, Book L. When the will is about to be opened, it is the duty of the Prætor to require the witnesses to appear and acknowledge their seals,
5Paulus, On Plautius, Book VIII. Or deny that they have sealed the will; for it is expedient that the last will of men should be carried into effect.
6Ulpianus, On the Edict, Book L. If the majority of the witnesses are found, the will can be opened and read in their presence.
7Gaius, On the Provincial Edict, Book VII. If one of the witnesses should be absent, the will must be sent to him wherever he may be, in order that he may acknowledge his seal. For it would be a hardship to compel him to return for this purpose, as frequently it causes great inconvenience for us to be taken from our business under such circumstances; and it would be unjust for anyone to suffer injury for having performed his duty. Nor does it make any difference whether one or all of the witnesses are absent. If all of them should happen to be absent, and, for some cause or other, there is an urgent necessity for opening the will, the Proconsul should take care that it is opened in the presence of men of excellent reputation; and after it has been copied and examined in their presence, it must be sealed by the same parties before whom it was opened, and then sent to the place where the witnesses are, in order that they may acknowledge their seals.
8Ulpianus, On the Edict, Book L. The Prætor does not permit the opening of a pupillary will, even if there is no endorsement on it forbidding this to be done; still, if the testator left his will partially sealed, the Prætor can allow it to be opened, if proper cause be shown.
9Paulus, On the Edict, Book XLV. Where a woman is placed in prætorian possession of an estate in the name of her unborn child, the pupillary will should be opened, in order that it may be ascertained to whom the curatorship of the child was entrusted.
10Ulpianus, On the Lex Julia et Papia, Book XIII. Where there are two copies of a will, and one of them remains unsealed, the will is held to be opened. 1Where the will itself is unsealed, there is no doubt that it should be considered as opened; for we do not inquire by whom it is to be opened. 2If a will should not be produced, or has been burned, it follows that relief should be granted to the legatees; and the same rule applies where the will has been suppressed, or concealed.
11Gaius, On the Lex Julia et Papia, Book XI. Just as a codicil is considered to be part of a will, so a pupillary substitution is also held to constitute a part of the same.
12Ulpianus, On the Lex Julia et Papia, Book XIII. Where anyone makes a will and also a copy of it, and the copy is open, the will is not considered to be open; but when the original will is open, everything else is likewise.