Dig. 29,7 De iure codicillorum

Liber vicesimus nonus

VII.

De iure codicillorum

(Concerning the Law of Codicils.)

1Ulpianus libro quarto disputationum. Saepissime rescriptum et constitutum est eum, qui testamentum facere opinatus est nec voluit quasi codicillos id valere, videri nec codicillos fecisse: ideoque quod in illo testamento scriptum est, licet quasi in codicillis poterit valere, tamen non debetur.

1Ad Dig. 29,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 82, Note 14.Ulpianus, Disputations, Book IV. It has very frequently been set forth in Rescripts and Imperial Constitutions, that where a testator was under the impression that he had made a will (but which was void as such), and did not intend it to be valid as a codicil, he is held not to have executed a codicil. Therefore, whatever is included in a will of this kind will not be due, although it would have been if included in a codicil.

2Iulianus libro trigesimo septimo digestorum. Si ei, qui post testamentum factum et ante codicillos scriptos natus esset, codicillis per fideicommissum aliquid daretur, utile est. 1Quod si ei, qui post testamentum factum et antequam codicilli scriberentur mortuus esset, datum esset, pro non scripto habetur. 2Codicillorum ius singulare est, ut quaecumque in his scribentur perinde haberentur, ac si in testamento scripta essent. ideoque servo, qui testamenti facti tempore testatoris fuisset, codicillorum tempore alienus, non recte libertas directa datur. et contra si, cum testamentum fiebat, alienus esset, codicillorum tempore testatoris, intellegitur alieno servo libertas data. et ideo licet directae libertates deficiunt, attamen ad fideicommissarias eundum est. 3Furiosus non intellegitur codicillos facere, quia nec aliud quicquam agere intellegitur, cum per omnia et in omnibus absentis vel quiescentis loco habetur. 4Hereditas testamento inutiliter data non potest codicillis quasi hereditas confirmari, sed ex fideicommisso petitur salva ratione legis Falcidiae.

2Julianus, Digest, Book XXXVII. Where a child is born after a will has been executed, and before a codicil is written, and anything is left to it in trust by the codicil, it will be valid. 1If, however, he to whom anything was given should die after the execution of the will, and before the codicil in which the bequest is made is executed, it will be considered as not having been written. 2Ad Dig. 29,7,2,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 630, Note 10.A rule peculiar to a codicil is that whatever is included in it shall be considered to have the same effect as if it had been included in the will. Hence freedom is not legally granted to a slave who, at the time of the execution of the will, was the property of the testator, but, when the codicil was executed, belonged to another. And, on the other hand, if the slave belonged to another at the time that the will was made, and at the time of the execution of the codicil had become the property of the testator, freedom is then understood to have been granted to a slave belonging to another; and therefore, although it cannot be directly bestowed, still recourse can be had to a trust. 3An insane person is not understood to have the power to make a codicil, for the reason that he is not considered to be competent to perform any other act; since, in the transaction of every kind of business, he is held to be in the position of one who is absent, or who takes no part in the transaction. 4Where an estate is fruitlessly bequeathed by a will, it cannot be confirmed by a codicil, but it can be claimed under a trust, with a reservation of the amount granted by the Lex Falcidia.

3Idem libro trigensimo nono digestorum. Si quis cum testamentum nullum habebat, codicillis fideicommissa hoc modo dedit: ‘quisquis mihi heres erit bonorumve possessor, eius fidei committo’, fideicommissa praestari debent, quia pater familias, qui testamenti factionem habet et codicillos faceret, perinde haberi debet, ac si omnes heredes eius essent, ad quos legitima eius hereditas vel bonorum possessio perventura esset. 1Sed et si post codicillos factos natus quis esset proximus adgnatus vel suus heres, fideicommissum praestari debebit: intellegitur enim is quoque heres scriptus et ideo non perinde habendus est ac si rupisset hos codicillos. 2Testamento facto etiamsi codicilli in eo confirmati non essent, vires tamen ex eo capient. denique si ex testamento hereditas adita non fuisset, fideicommissum ex huiusmodi codicillis nullius momenti erit.

3The Same, Digest, Book XXXIX. Where anyone who has not made a will establishes a trust, by means of a codicil, as follows: “Whoever shall be my heir, or the prætorian possessor of my estate, I leave to him as trustee,” the sums left under the trust must be paid, because the head of the household who had the power to make a will, and made a codicil, is in the same position as if all those were his heirs into whose hands the estate will come either through descent or through possession under Prætorian Law. 1Where a child is born after the execution of a codicil, and it is the next of kin, or the direct heir, it will not be obliged to pay any sums left in trust, for it is also understood to be the appointed heir, and therefore it should not be considered as having broken the codicil. 2Where a will has been made, even if a codicil should not be confirmed by it, the codicil will, nevertheless, obtain all its force and effect from the will. Again, if the estate is not entered upon by virtue of the will, a trust created by a codicil of this kind will be of no validity whatever.

4Idem libro sexagesimo tertio digestorum. Eum, qui codicillorum tempore solvendo sit, recte libertatem dare placuit, quamvis testamenti facti tempore solvendo non fuerit.

4The Same, Digest, Book LXIII. It has been decided that a testator who was solvent at the time of making a codicil can legally grant freedom to his slaves, although he may not have been solvent at the time when the will was executed.

5Papinianus libro septimo responsorum. Ante tabulas testamenti codicilli facti non aliter valent, quam si testamento quod postea factum est vel codicillis confirmentur aut voluntas eorum quocumque indicio retineatur: sed non servabuntur ea, de quibus aliter defunctus novissime iudicavit.

5Papinianus, Opinions, Book VII. A codicil which precedes a will is not valid unless confirmed by the will or by a second codicil subsequently executed, or where its provisions are established by some other expression of the intention of the testator; but any different dispositions that the deceased may subsequently make shall not stand.

6Marcianus libro septimo institutionum. Divi Severus et Antoninus rescripserunt nihil egisse matrem, quae, cum pure liberos suos heredes instituerit, condicionem emancipationis codicillis adiecit, quia neque condicionem heredi instituto codicillis adicere neque substituere directo potest. 1Codicillos et plures quis facere potest et ipsius manu neque scribi neque signari necesse est. 2Licet in confirmatione codicillorum pater familias adiecerit, ut non alias valere velit quam sua manu signatos et subscriptos, tamen valent facti ab eo codicilli, licet neque ab eo signati neque manu eius scripti fuerint: nam ea quae postea geruntur prioribus derogant. 3Codicillos is demum facere potest, qui et testamentum facere potest. 4Si post testamentum factum mortuo codicillis quis legaverit licet testamento confirmatis, pro non scripto legatum fit.

6Marcianus, Institutes, Book VII. The Divine Severus and Antoninus stated in a Rescript, where a mother appointed her children her heirs absolutely, but, in a codicil, added a condition of emancipation, that her act was void; because she could not impose a condition upon an heir who had been appointed, or directly make a substitution under a codicil. 1Anyone can make several codicils, and it is not necessary for him to write or seal them with his own hand. 2Although, in the confirmation of a codicil, the head of a household may have added that it was not his intention that it should be valid, unless it was sealed and signed with his own hand; still, the codicil made by him will be valid, even if it had neither been signed nor sealed with his own hand, for subsequent dispositions annul those which precede them. 3He only can make a codicil who is competent to make a will. 4If anyone, by a codicil, should bequeath a legacy to a person who died after he had made his will, the bequest will be considered as not having been made, even though the codicil may have been confirmed by the will.

7Idem libro secundo regularum. Quaedam non referuntur ad confirmationem codicillorum, veluti si ante captivitatem quis codicillos confirmaverit et in captivitate codicillos scribat: nam non valent. idem est, si aliquo modo ius testamenti faciendi desierit habere. 1Praeterea in illis, quae non iuris, sed facti sunt, non est perinde habendum quod codicillis scribitur, atque si ubi confirmatio scriptum fuisset: veluti si ita in codicillis scriptum erit: ‘vestem quae mea est’, codicillorum tempus spectandum, non quo confirmantur: item ‘si Titius vivus est’ vel ‘si tot annis est’, codicillis legavit Seio, tempus codicillorum, non quo tempore fit testamentum, spectandum.

7The Same, Rules, Book II. There are certain dispositions which do not relate to the confirmation of codicils; as, for instance, where anyone confirms a codicil before being taken prisoner, and writes a codicil while in captivity, for such a codicil will not be valid. The same rule applies where a person in some way or other ceases to possess testamentary capacity. 1Moreover, in questions which are rather those of fact than of law, what is included in a codicil is not to be considered as if it had been written at the time when the codicil was confirmed; for example, if it should be stated in the codicil, “That such-and-such a garment which belongs to me is bequeathed”, the time that the codicil was written, and not that when it was confirmed, should be considered. Again, if a bequest is made to Seius by a codicil as follows, “If Titius is living”, or “If he is so many years old”, the date of the codicil, and not that of the will, should be considered.

8Paulus libro singulari de iure codicillorum. Conficiuntur codicilli quattuor modis: aut enim in futurum confirmantur aut in praeteritum aut per fideicommissum testamento facto aut sine testamento. 1Sed ideo fideicommissa dari possunt ab intestato succedentibus, quoniam creditur pater familias sponte sua his relinquere legitimam hereditatem. 2Codicilli totiens valent, quotiens quis testamentum quoque facere possit. non tamen hoc ita intellegemus, ut exigamus potuisse eum eo tempore, quo scribit eos codicillos, testamentum facere: quid enim, si sufficientium testium facultatem non habuit? sed si iure testamenti factionem habuit. 3Si post factum testamentum codicillos quis confirmaverit, deinde adrogandum se praebuerit et ibi codicillos fecerit atque ita emancipatus decesserit, quaeritur, an ex codicillis legata debeantur: nam et testamentum valet, sed eo tempore eos fecit, quo testamenti factionem non habuit. nec similis est muto, qui recte codicillos confirmaverit: licet enim is testamentum facere non possit, tamen testamentum quod ante fecerat in eodem statu est, huius autem testamentum sublatum est et de alienis quodammodo rebus testatur. sed dicemus codicillos valere: nam et si postumus natus ruperit testamentum et decesserit, nihilo minus codicilli valent. 4Si miles testamentum quidem ante militiam, sed codicillos in militia fecerit, an iure militari valeant codicilli, quaeritur, quoniam testamentum iure communi valet, nisi si militiae tempore signavit vel quaedam adiecerit. certe codicilli militiae tempore facti non debent referri ad testamentum, sed iure militari valent. 5Si ei servo, qui testamento legatum acceperit, libertas codicillis detur, utile legatum esse dicemus, quasi ab initio constiterit legatum. 6Si quis certi generis codicillos confirmaverit, puta ‘quos novissimos fecero’, non utique statim quae codicillis dantur consistere videbuntur, quamdiu alii quoque fieri possint, et ideo si alii postea fiant, legata in prioribus data non valebunt.

8Paulus, On the Law of Codicils. Codicils are drawn up in four ways: for they are either to be confirmed in the future; or have been confirmed in the past; or they are made by means of a trust, where a will has been executed; or where there is no will. 1Those who succeed to an estate ab intestato can be charged with a trust, as it is considered that the deceased has voluntarily left them the estate to which they were entitled by law. 2A codicil is valid whenever the party who executed it was competent to make a will. But it must not be understood that we require him to have been competent to make a will at the time when he wrote the codicil. (For what if he was unable to obtain a sufficient number of witnesses?) It is indispensable, however, for him to have had the legal right to make a will. 3If anyone, by his will, should confirm a codicil to be made hereafter, and then offer himself to be arrogated, and afterwards make a will, and die emancipated; the question arises whether the legacies bequeathed by the codicil should be paid, as the will is valid? He, however, executed the codicil at a time when he did not have testamentary capacity; and this case is not similar to that of a dumb person, who can legally confirm a codicil; for, although he is not competent to make a will, still one which he made before he became dumb remains in the same condition; but the will of this party is void, and, he is in a certain way disposing of the property of others by means of it. We hold, however, that the codicil is valid, for even if the birth of a posthumous child should break the will, and it should afterwards die, the codicil will still be valid. 4Where a soldier executes a will before entering the army, and executes a codicil after his enlistment, the question arises whether the codicil will be valid under military law, since a will made under such circumstances is valid by the Common Law only where the soldier did not seal it, or make some addition to it during the term of his military service. It is certain that the codicil made during military service should not be referred back to the will in order to establish its validity, but is valid by military law. 5Where freedom is granted by a codicil to a slave who had also received a legacy by will, we say that the legacy is valid, just as if it had been so from the beginning. 6Where anyone confirms a codicil of a certain kind, for instance, “the one which I shall execute last”, the provisions contained in any codicil will not be considered to be valid immediately, so long as others can be made; and therefore if others should be made subsequently, all grants of legacies by former ones will be void.

9Marcellus libro nono digestorum. Aristo negavit valere codicillos ab eo factos, qui pater familias nec ne esset, ignorasset. Ulpianus notat: nisi veteranus fuit: tunc enim et testamentum valebit.

9Marcellus, Digest, Book IX. Aristo denies that a codicil is valid where it is made by a person who was ignorant as to whether or not he was the head of the family. Ulpianus states in a note, “Unless he had served in the army, for then his will will be valid”.

10Papinianus libro quinto decimo quaestionum. Quod per manus traditum est codicillis hereditatem dari non posse rationem illam habet, ne per codicillos, qui ex testamento valerent, ipsum testamentum, quod vires per institutionem heredum accipit, confirmari videretur.

10Papinianus, Questions, Book XV. The opinion that an estate cannot be bequeathed by a codicil has been handed down from former times, and the reason for this is to prevent the will, which obtains all its force from the appointment of the heirs, from appearing to be confirmed by means of a codicil, which itself is dependent upon the will for its validity.

11Idem libro nono decimo quaestionum. Qui gravi utero uxorem esse ignorabat, codicillis ad filium scriptis libertates dedit. nata post mortem patris filia, cum de ea nihil patrem sensisse constitisset, placuit libertates a solo filio praestari: posse.

11The Same, Questions, Book XIX. A certain man who was not aware that his wife was pregnant, in a codicil directed to his son, liberated some of his slaves. After the death of the father, a daughter was born to him, and as it was established that her father had not had her in his mind at any time, it was held that the grant of freedom should be made by the son alone:

12Idem libro vicensimo secundo quaestionum. Redemptis a sorore partibus.

12The Same, Questions, Book XXII. After the sister had been reimbursed for her share of the slaves.

13Idem libro nono decimo quaestionum. Illud enim sine dubio dici non potest etiam filiam manumittere cogendam, cum ab ea nihil pater petierit et iure suo heres exstiterit. 1Tractari solet de eo, qui, cum tabulas testamenti non fecisset, codicillis ita scripsit: ‘Titium heredem esse volo’. sed multum interest, utrum fideicommissariam hereditatem a legitimo per hanc scripturam, quam codicillorum instar habere voluit, reliquerit an vero testamentum facere se existimaverit: nam hoc casu nihil a legitimo peti poterit. voluntatis autem quaestio ex eo scripto plerumque declarabitur: nam si forte a Titio legata reliquit, substitutum adscripsit, heres si non exstitisset, sine dubio non codicillos, sed testamentum facere voluisse intellegetur.

13The Same, Questions, Book XIX. For it can undoubtedly be maintained that the daughter could not be compelled to manumit the slaves, since her father requested nothing of her, and she becomes an heir in her own right. 1The point is often discussed as to what conclusion should be reached, where a man did not make a will, but stated in a codicil: “I wish Titius to be my heir”. It makes a great deal of difference whether he left the estate in trust in charge of his lawful heir, by means of this instrument, which he intended for a codicil, or whether he thought that he was making a will, for, in this case, Titius could claim nothing from the lawful heir. The intention of the party in question is generally ascertained by the examination of the instrument itself. For if he left a legacy to be discharged by Titius, and appointed a substitute for him, if he should not be the heir, there is no doubt that he should be understood to have intended to make a will, and not a codicil.

14Scaevola libro octavo quaestionum. Quidam referunt, quantum repeto apud Vivianum, Sabini et Cassii et Proculi expositam esse in quaestione huiusmodi controversiam: an legata, quae posteaquam instituti mortem obierunt codicillis adscripta vel adempta sunt, a substitutis debeantur, id est an perinde datio et ademptio etiam hoc tempore codicillis facta valeat ac si testamento facta esset. quod Sabinum et Cassium respondisse aiunt Proculo dissentiente. nimirum autem Sabini et Cassii collectio, quam et ipsi reddunt illa est, quod codicilli pro parte testamenti habentur observationemque et legem iuris inde traditam servent. ego autem ausim sententiam Proculi verissimam dicere. nullius enim momenti est legatum, quod datum est ei, qui tempore codicillorum in rebus humanis non est, licet testamenti fuerit: esse enim debet cui detur, deinde sic quaeri, an datum consistat, ut non ante iuris ratio quam persona quaerenda sit. et in proposito igitur quod post obitum heredis codicillis legatum vel ademptum est, nullius momenti est, quia heres, ad quem sermonem conferat, in rebus humanis non est eaque ademptio et datio nunc vana efficietur. haec in eo herede, qui ex asse institutus erit dato substituto, ita ut ab instituto codicilli confirmarentur. 1Quod si duo instituti sint substitutis datis unusque eorum decesserit, utilia videntur legata: sed circa coheredem erit tractatus, numquid totum legatum debeat, si ‘quisquis mihi heres erit’ legatum erit, an vero non, quia sit substitutus heres, qui partem faciat, licet ipse non debeat. idem etiam potest circa nomina expressa tractari. multoque magis solum coheredem totum debere puto, quia is adiunctus sit, qui etiam tunc cum adiungebatur in rebus humanis non erat.

14Scævola, Questions, Book VIII. Certain authorities hold (as I recollect) that in Vivianus a controversy is explained which arose between Sabinus, Cassius, and Proculus with reference to the question whether legacies given, or taken away by a codicil from persons who died after they were appointed heirs, were due to the substitutes; that is to say, whether the giving or the taking away of the legacies was as valid where they were provided for by a codicil, as they were when provided for by a will. It is said that Sabinus and Cassius answered that this was the case, and that Proculus dissented. The conclusion of Sabinus and Cassius, (as they themselves assert) is that the codicil is considered as part of the will, and that it sustains the observance of the law with reference to the delivery of the property. Still, I venture to say that the opinion of Proculus is the more correct; for a legacy is of no force or effect which is bequeathed to one who, at the time the codicil was made, was not in existence, even though he was living at the time when the will was drawn up; as it should belong to him to whom it is given. Then the question should be asked whether the legacy was properly bequeathed, so that the rule of law shall not be inquired into before the existence of the person is ascertained. In the case stated, therefore, the bequest is of no force or effect, if it was made or taken away by a codicil, after the death of the heir; for the reason that the heir referred to was not in existence, and the deprivation or the grant of the legacy becomes void in consequence. This would not apply where a substitute is given for an heir appointed to the entire estate, as the codicil would be confirmed by the appointment. 1Where two heirs have been appointed, and substitutes assigned, and one of them should die, the legacies will still be considered valid; but some discussion arose with reference to the co-heir, and whether he owed the entire legacy, where the bequest was as follows: “Whoever shall be my heir.” Or must it be held that all is not due, for the reason that the heir who was substituted should pay a portion of the same, even though he himself does not owe it? The same discussion may arise with reference to specified obligations; but I think that there is much more ground for the co-heir being liable for the entire legacy, because the party who was joined with him is no longer in existence.

15Africanus libro secundo quaestionum. Sed cum ea testatoris voluntas fuerit, ut ex universa hereditate legata erogarentur, dicendum scriptis heredibus profuturam doli exceptionem, si amplius quam hereditaria portio petatur.

15Africanus, Questions, Book II. But as it was the will of the testator that the legacy should be paid out of the entire estate, it must be said that an exception on the ground of bad faith will lie for the benefit of the heirs appointed by the will, where a sum greater than they are entitled to is claimed.

16Paulus libro vicesimo primo quaestionum. Ab intestato factis codicillis relicta etiam postea natus intestati successor debebit: quicumque enim ab intestato successerit, locum habent codicilli: nam unus casus est nec interest qui succedit dum intestato succedat. ad testamentum autem quod quoquo tempore fecisset, pertinent codicilli. et ut manifestius dicam, intestato patre familias mortuo nihil desiderant codicilli, sed vicem testamenti exhibent: testamento autem facto ius sequuntur eius.

16Paulus, Questions, Book XXI. Where a codicil is made without a will having been drawn up, the successor of the deceased, even though he was born after the codicil was executed, will owe whatever legacies were bequeathed by the same; for the codicil is valid, no matter who the heir may be who is entitled to the intestate succession; for only one case was taken into consideration, and it does not make any difference who obtains the estate, provided he succeeds ab intestato. The codicil depends upon the will, if one was made, no matter at what time this was done. And (in order that I may express myself more clearly) where the head of a household dies intestate, the codicil requires no confirmation, but takes the place of a will. Where, however, a will has been made, the codicil is governed by the same law.

17Idem libro tertio sententiarum. Litterae, quibus hereditas promittitur vel animi affectus exprimitur, vim codicillorum non optinent.

17The Same, Sentences, Book III. Letters by which an estate is promised, or affection is expressed, have not the force of a codicil.

18Celsus libro vicesimo digestorum. Plotiana Celso suo salutem. Lucius Titius his verbis ita cavit: ‘si quid tabulis aliove quo genere ad hoc testamentum pertinens reliquero, ita valere volo’. quaero, an codicilli, qui ante hoc testamentum scripti sunt, debeant rati esse. Iuventius Celsus Plotianae salutem. Haec verba: ‘si quid ad hoc testamentum pertinens reliquero, valere volo’, etiam ea, quae ante testamentum scripta sunt, comprehendere.

18Celsus, Digest, Book XX. Plotiana to her friend, Celsus, Greeting. Lucius Titius made the following provision in his will: “If I leave anything by will in any document, which in any way relates to this will, I desire it to be valid.” I ask whether a codicil made before this will should be confirmed. Juventius Celsus to Plotiana, Greeting. These words: “If I leave anything which relates to this will, I desire it to be valid,” also include everything which was bequeathed before the will was made.

19Marcellus libro quarto decimo digestorum. Is qui unum filium habebat, cum codicillos ad eum scripsisset, decessit intestatus herede eo et quem postea procreavit. adgnatione sui heredis nemo dixerit codicillos evanuisse: igitur si nihil tum de postumis speravit, et codicilli non evanescent et quae relicta sunt, pro parte dimidia filius, ad quem codicillus factus est, solvere compellitur, non etiam postumus. sed et si codicillos reliquisset duobus superstitibus filiis decedens, cum putaret alterum ex his prius decessisse, simili modo dici potest omnia perinde debere filium, ad quem scripti sunt codicilli, atque si solus heres exstitisset patri. immo dumtaxat partem debet: eorum tamen, quae pro parte praestari non possunt, nihil eorum praestandum, quoniam illi non fuerit filio ablaturus, nisi solum putaret successorem sibi futurum.

19Marcellus, Digest, Book XIV. A father, who had an only son, made a codicil directed to him, and died intestate, leaving as his heir a son whom he had begotten after he had made the codicil. No one can say that the codicil was annulled, and therefore if the deceased did not expect to have a posthumous heir, the codicil will not become void through his death; and the son to whom it was directed will be compelled to pay the legacy in proportion to his share of the estate, but the posthumous son will not be compelled to pay anything. But if he, at the time of his death, should have left two surviving sons, but thought that one of them was dead, in like manner, it can be held that the son to whom the codicil was directed may be compelled to pay the entire legacy, just as if he had been the sole heir of his father; but he will only owe a sum in proportion to his share of the estate. Still, no part of a legacy which cannot be divided shall be paid, as the father would not have deprived his son of his share, unless he had thought that he would be his sole heir.

20Paulus libro quinto ad legem Iuliam et Papiam. Si palam heres nuncupatus sit, legata autem in tabulis collata fuerint, Iulianus ait tabulas testamenti non intellegi, quibus heres scriptus non est, et magis codicilli quam testamentum existimandae sint: et hoc puto rectius dici.

20Paulus, On the Lex Julia et Papia, Book V. Where an heir has been orally appointed, and the bequests of the legacies have been reduced to writing; Julianus says that this instrument should not be understood to be a will in which the heir is not mentioned, but it should rather be considered a codicil, and I think this to be the more correct opinion.

Corpus iurisprudentiae Romanae

Digesta Iustiniani Augusti

De iure codicillorum

(Concerning the Law of Codicils.)