Marcianus, Institutes, Book IV. Proceedings are instituted in the case of an inofficious testament on the ground that the testator was not of sound mind when he made his will. It is not understood by this that he was actually insane, or demented, when he executed his will, but that he made it according to law, yet not in compliance with the dictates of paternal or filial affection; for if he were actually insane or demented, his will would be void.

Marcianus, Institutes, Book IV. A natural father can lawfully institute proceedings against the will of his son who has been given in adoption, on the ground that said will is inofficious. 1The Divine Severus and Antoninus stated in a Rescript that guardians were permitted, in behalf of their wards, to institute proceedings on the ground that a will was inofficious or forged, without any risk of losing what was bequeathed to them by the will.

Marcianus, Institutes, Book IV. Those who have been captured by robbers, as they remain free, can make a will. 1Moreover, those who perform the duties of envoys in foreign countries can make a will. 2Where anyone convicted of a capital crime appeals, and makes a will in the meantime, while the appeal is pending, and then dies, his will is valid.

Marcianus, Institutes, Book IV. The appointment of an heir is legally made when expressed as follows: “Let Titius be the owner of my estate.” 1The following appointment is valid: “Let my most unnatural son, who has deserved so ill of me, be my heir”; for he is absolutely appointed heir, although in terms of reproach, and all appointments of this kind are accepted. 2Sometimes a slave is not legally appointed an heir with the grant of his freedom by his mistress, as is indicated by a Constitution of the Divine Severus and Antoninus, which is in the following words: “It is reasonable that a slave accused of adultery should not, before judgment has been rendered, be legally enfranchised by the same woman with whom he was implicated, where she is accused of the same crime. Hence it follows that his appointment as an heir by his mistress is of no force and effect.” 3Where the testator makes a false statement with reference to the father, the nationality, or any similar relationship of his heir, the appointment will be valid, provided the identity of the party designated is established.

Marcianus, Institutes, Book IV. Anyone can establish several degrees of heirs in a will, for example: “If So-and-So does not become my heir, let So-and-So not be my heir”, and I appoint several others in succession, so that in the last place, by way of reserve, a slave is appointed a necessary heir. 1Several heirs can be substituted instead of one, or one instead of several, or particular heirs instead of each one, or those who have been appointed heirs can be substituted for one another.

Marcianus, Institutes, Book IV. When conditions are prescribed in violation of the Edicts of the Emperors, or against the laws, or contrary to whatever obtains the force of law, or which are opposed to good morals, or imply derision, or are such as the Prætors would not approve of, they are held not to have been written, and the estate or the legacy will pass to the heir or legatee, just as if the condition had not been prescribed.

Marcianus, Institutes, Book IV. Julianus states that the following appointment is void, namely: “If Titius should be my heir, let Seius be my heir; if Seius should be my heir, let Titius be my heir”, as the condition cannot take place.

Marcianus, Institutes, Book IV. Where a son under paternal control, who is serving as a soldier, loses his civil rights, or is emancipated, or is given in adoption by his father, his will will be valid, just as if a new one had been executed.

Marcianus, Institutes, Book IV. A son that was under the control of his father who was insane was appointed an heir; the Divine Pius stated in a Rescript that he would be indulgent, and that if the said son should enter upon the estate, it would be considered just as if his father had done so, and that he would allow him to manumit the slaves belonging to said estate. 1When anyone is appointed an heir to one portion of an estate absolutely, and to the remaining portion under a condition, if he enters upon the estate while the condition is still pending, he will become the heir to the whole of it; for the reason that he will be the heir under all circumstances, unless he has a substitute for that part of the estate which depends upon the fulfillment of the condition.

Ad Dig. 36,1,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 552, Note 6.Marcianus, Institutes, Book IV. If anyone, after having made a will, should afterwards make a second one, the first is annulled, even though by the last will he appointed heirs to certain property, as the Divine Severus and Antoninus stated in a Rescript, the words of which Constitution I quote, along with other matters included therein. “The Emperors Severus and Antoninus to Cocceius Campanus, Greeting. There is no doubt that a second will, although the heir may only have been appointed by it to receive certain property, is valid, just as if no mention of the property had been made; but the said appointed heir will be obliged to be content with whatever is left to him, or with enough to make up his fourth under the Falcidian Law; and he must transfer the estate to those mentioned in the former will, on account of the words creating the trust which were inserted, by which the testator stated that he intended the first will to be valid. This, however, must be understood to apply only where nothing especially contradictory was included in the second will.”

The Same, Institutes, Book IV. The Divine Commodus stated in a Rescript that the property of hostages, just like that of captives, should be turned over to the Treasury.