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.

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.

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.

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, 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, 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.

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, 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, 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, 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.

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:

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

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.

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, 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, 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.

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

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, 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, 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.