Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

TESTAMENTARY FORM AND CAPACITY 157

Further, they attest not merely, as with us, the execution of the document, the nature of which may be unknown to them,1 but the whole transaction. Consequently they must know that it is a will, though they need not know the content.2 Horace observes that one ought not to show too much curiosity about the content, though there is no harm in getting a look to see whether you are sole heres or only take a share ;3 and from an enactment under Theodosius4 it is clear that a practice had grown up, which he declares not to be the law, of requiring witnesses to know the provisions of the will. Witnesses attested by sealing {signatid) and subscription i.e. an acknowledgement of the seal and the document, usually with a signature. The rules as to capacity of witnesses, so far as they are absolute, depend on the personal law and need not be discussed, but the 'relative' exclusions, dependent on the relation between the witness and the parties to a particular will, are so different from ours as to need mention. Our law is based on distrust of the evidence of interested parties.5 The Statute of Frauds said that the witnesses must be * credible'; and if a witness was a legatee or the spouse of a legatee, the Courts did not regard him as 'credible', and so the whole will might fail for lack of the right number of witnesses. The modern rule is6 that, where there is a gift to a witness or the spouse of a witness, the attestation is good, no doubt *ut res magis valeat quam pereat' {favor testamenti)y but the gift is void. In the Roman classical law the attestation of anyone in the same family group as the testator or thefamiliae emptor, i.e. the person to whom the estate is nominally assigned for the purpose of carrying into effect the provisions of the will, is void. But this does not turn on personal interest, for at that time the familiae

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emptor was a mere form, having no actual function or interest (and it is far from clear that he ever had any interest), but on the fact that the proceeding was by mancipation and the witnesses to a mancipation who were intended to secure publicity, must not be of the family of either party. Interest had nothing to do with the matter and the heres was a perfectly good witness, though Gaius goes so far as to say that it is not desirable to have the heres or a member of his family.1 Justinian indeed, acting apparently on the hint in Gaius, makes the heres and those in his family incompetent, but he goes no further and any other beneficiaries are perfectly good witnesses.2 The attestation of the heres or other incompetent person does not of course per se vitiate the transaction: they simply do not count in the necessary number of witnesses, so that the deficiency thus resulting may vitiate the transaction.

The process of 'opening the will' corresponded closely to our 'probate* and seems to have served the same fiscal purpose. It was a formal process before the magistrate at which the available witnesses were required to appear and acknowledge their seals and the fact that they took part in the making of the will.3

4. SOLDIERS' WILLS

This is a topic in which Roman law long exercised a decisive influence on English law, an influence which has recently been held to have been unfortunate. Roman law allowed a soldier to make a valid will without any formality if he was in expeditione, though the will so made remained valid only for a year after discharge.

Before 1677 English law insisted on no formalities in the making of a will,* and when the Statute of Frauds

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Digest covers the whole of private law and a good deal of public law, considerably more than a quarter of it is occupied by succession and the various provisions of wills.1 This is all the more remarkable as the Roman law was without the complications and difficulties of interpretation due to our highly sophisticated real property law.2 It is impossible to go, for the purpose of comparison, through the whole mass of rules of interpretation and construction, but space must be found for some of the more important, bearing in mind that the rules as we have them are in the main the rules of Justinian's law and that the rules of classical law were certainly to some extent, and may have been to a very great extent, different.

Some of the Roman rules are due to the fact that the Romans disliked intestacy. Thisfavor testamenti led to the adoption of rules, not necessarily rational, which would maintain the validity of the instttutio heredis, on which depended the validity of the will, where another interpretation would have been more reasonable in itself, or more in accord with existing legal principles. Thus, while an impossible, illegal or immoral condition avoided a contract,3 in an institutio it was simply struck out, to avoid an intestacy,4 and this was extended to all provisions of a will without the same necessity. As our law of wills of personal property was developed by the Church Courts (and there were, at first, no wills of real property) it is not surprising that it borrowed something from this source.

'Semel heres, semper heres', and thus if a heres was appointed only for a time, the limitation was struck out.5 In

1But one has only to observe the bulk of such a book as Jarman on Wills to realise that Roman law shares this peculiarity to some extent with English law.

2Moreover, an executor is personally liable if he distributes the estatet on a wrong basis; and so, in doubtful cases, he always seeks the opinion of

the Court. There was no such incentive to litigation at Rome.

INTERPRETATION l6 l

our law there is also a leaning against intestacy in all cases where the construction of a will is doubtful,1 but as appears from the language of Romer L.J. in Re Edwards, Jones v. Jones2 a' testator may well intend to die intestate', and if his intention is clear it must receive effect; the principle does not dominate the rules as it does in Roman law. It is to be noted that the favor testamenti of classical law becomes in later lawfavor testantis, and Justinian's texts contain many decisions in which effect is given to what is conceived to have been the wish of the testator, though this construction is not the true effect of what he has said, or necessary to avoid intestacy.3

In Roman law, as in ours, wills are construed according to the intent of the testator, but there are differences between the two systems as to the evidence receivable by the Court in proof of the intent. The governing principle of our law in the matter is that the intent is to be gathered from the will itself, the whole will, not the individual proposition4 and, in particular, that where the will is clear no extraneous evidence is admissible to vary it, 5 to show for instance that where one property or person is clearly indicated another is actually meant.6 It is true that there are limitations to this. Evidence is admitted against the will where it ir shown, e.g., that clauses have been improperly introduced into it against the intent of the testator: they must be struck out of the probate, even if they affect the sense of the remaining words, but the right words cannot be substituted for them.?

Atfirstsight the Roman principles seem much the same. There are many texts which lay down the rule, or imply it,

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that the will is to be interpreted by the will, the whole will and nothing but the will.1 There are also many texts which lay it down that to determine in which of admissible senses a word is used, we may look at the circumstances, the testator's habits and knowledge.2 On the other hand there are many texts which give power to cite extraneous evidence in a wider field and in nearly every case this doctrine seems to have been introduced by interpolation.^ However, in some cases there is no sign of interpolation. In one case a testator instituted A meaning to institute B. It was held that neither was heres> A because he was not meant, B because he was not named. Here it is clear that extraneous evidence is admitted.4 So too we are told that the insertion or omission of a condition where this was intended can be made good.5 It is true that in D. 2. 8. 5. 9. 5 the words occur: 'nee nuncupatum videri quod contra voluntatem scriptum est', which would bring it into line with some of the cases referred to by Jarman,6 but it does not seem that

there actually was any difference in the nuncupation It is clear that where such a difference had occurred the matter could be set right by external evidence? and also that errors leaving the sense clear were immaterial.8 It should be

1 E.g. C. 6. 28. 1; C. 6. 37. 23. ic; D. 28. 5. 19; C. 6. 37. 1; D. 30. 17.pr.9 33, 74, 81. 3; D. 31. 33. i ; D . 32. 25 (where all is clear there is no

3D. 28. 5. 2;D. 28. 5.63. i ; D . 28. 7. 2./>r.;D. 30. 17. 1, 88; D. 32.

73.4; D. 33. 6. 13; D. 33. 7. 27. 3; D. 34. if 20. 2; C. 6. 44. 1.

4D. 28. 5. 9. pr. The same thing is said more generally in D. 34. 5. 3. In D. 30.4, where a man left a farm using the name of another, the devisee was allowed to prove and claim that which was really meant. But here there was no error in corpore, merely a misnomer.

(1808), 9 East, 366.

added that in Justinian's Xzwfideicommissa were equiparated with legacies, so that each form should have the advantages of the others (a rule which must have been very difficult to apply); and sincefideicommissa could be made orally, and could always be proved by extraneous evidence,1 not much could really be left, so far as specific gifts were concerned, of the stricter principle. As in classical law there were only sketchy rules of evidence it is improbable that any rule of interpretation was ever very strictly observed.

As with Us, where there was clear equivocation,, e.g. a testator had two farms of the same name and made a legacy of one, it was allowed to prove by external evidence which he meant.* Where there was a definite error in corpore> e.g., 'dum vult lancem relinquere vestem leget',3 the Roman law allowed this to be proved, but only to the effect of destroying the gift, not of substituting what was really meant: the one gift fails as not being intended, the other as not having been made.4 In our law the rule seems to be that if the thing given is unambiguously described extraneous evidence cannot be produced to show that this was not the thing meant by the testator.5 But the rule above given for the Roman law, though clearly stated in the texts, is a rule of strict classical law and it may be doubted how far it really represents Justinian's law. There are several texts in which fundamental error is given more positive effect and, though they seem to be due to the intervention of the Emperor, they appear in the Corpus Juris and must therefore be taken as representing the law for Justinian's time. The best known is in the Institutes.6 A institutes as

1Buckland, Text-book, p. 354.

2D. 30. 39.6; cp. D. 28. 5.63.1, where a man having several friends of the same name institutes one. Here the form of the text strongly suggests that the power to clear up the point by extraneous evidence is due to Justinian. See Reynolds v. Whelan (1847), 16 LJ. Ch. 434.

5Halsbury, vol. 39, sect. 1461.

6Inst. 2. 15. 4.

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heres a man whom he believes to be free but who is in fact a slave and he substitutes X to the institutus ' si heres non erit'. The slave accepts at his master's orders. Tiberius decides that on such facts the words 'si heres non erit' mean * if he does not himself become heres9. As he cannot, there is an institutio of the substitute so that they share. A woman supposing her son to be dead instituted someone else. Hadrian gave the son the hereditas, preserving the legacies, i.e. reading into the will the institutio the mother would have made had she known the facts.1 Severus and Caracalla dealt in the same way with a similar case, but here the will showed on its face that the actual institutio was due to the belief that the desired heres was dead.z And where a mother with children died in childbirth the same Emperors read the will as if the last child had been named per coniecturam maternae pietatis.l These texts have been the subject of a very careful study,4 but it is doubtful whether for the Romans themselves they express any principle more precise than a general desire to give effect to a testator's wishes.

Both systems of law provide, indeed the rule is probably Roman in origin, that of two repugnant provisions the second prevails.5 But for this there must be a real repugnancy ; thus if in a will there is a gift to A and later on a gift of the same thing to B> there is no repugnancy, for the thing may perfectly well be given to A and B. Accordingly they share.6 That the rule, now apparently quite general, is derived from the Roman law appears from the fact that Swinburne7 thought that the common law courts would say that the second devise would destroy the earlier one, but that in the case of personalty the ecclesiastical courts

5 D. 30. 12. 3; C. 6. 42. 19; Ulrich v. Litchfield(17'42), 2 Atk. 372. 6 C. 6. 37. 23. 3; Sherratt v. Bentley (1834), 2 My. and K. at p. 165;

Re Alexander (1948), 64 T.L.R. 308. 7 Op, cit. pp . 552 sq.