TITLE XVII. OF THE MODES IN WHICH WILLS BECOME VOID
A duly executed testament remains valid until either revoked or rescinded.
1 A will is revoked when, though the civil condition of the testator remains unaltered, the legal force of the will itself is destroyed, as happens when, after making his will, a man adopts as his son either an independent person, in which case the adoption is effected by imperial decree, or a person already in power, when it is done through the agency of the praetor according to our constitution. In both these cases the will is revoked, precisely as it would be by the subsequent birth of a family heir.
2 Again, a subsequent will duly executed is a revocation of a prior will, and it makes no difference whether an heir ever actually takes under it or not; the only question is whether one might conceivably have done so. Accordingly, whether the person instituted declines to be heir, or dies in the lifetime of the testator, or after his death but before accepting the inheritance, or is excluded by failure of the condition under which he was instituted—in all the cases the testator dies intestate; for the earlier will is revoked by the later one, and the later one is inoperative, as no heir takes under it.
3 If, after duly making one will, a man executes a second one which is equally valid, the Emperors Severus and Antoninus decided by rescript that the first is revoked by the second, even though the heir instituted in the second is instituted to certain things only. The terms of this enactment we have ordered to be inserted here, because it contains another provision. 'The Emperors Severus and Antoninus to Cocceius Campanus. A second will, although the heir named therein be instituted to certain things only, is just as valid as if no mention of the things had been made: but the heir is bound to content himself with the things given him, or with such further portion of the inheritance as will make up the fourth part to which he is entitled under the lex Falcidia, and (subject thereto) to transfer the inheritance to the persons instituted in the earlier will: for the words inserted in the later will undoubtedly contain the expression of a wish that the earlier one shall remain valid.' This accordingly is a mode in which a testament may be revoked.
4 There is another event by which a will duly executed may be invalidated, namely, the testator's undergoing a loss of status: how this may happen was explained in the preceding Book.
5 In this case the will may be said to be rescinded, though both those that are revoked, and those that are not duly executed, may be said to become or be rescinded; and similarly too those which are duly executed but subsequently rescinded by loss of status may be said to be revoked. However, as it is convenient that different grounds of invalidity should have different names to distinguish them, we say that some wills are unduly executed from the commencement, while others which are duly executed are either revoked or rescinded.
6 Wills, however, which, though duly executed, are subsequently rescinded by the testator's undergoing loss of status are not altogether inoperative: for if the seals of seven witnesses are attached, the instituted heir is entitled to demand possession in accordance with the will, if only the testator were a citizen of Rome and independent at the time of his decease; but if the cause of the rescission was the testator's subsequent loss of citizenship or of freedom, or his adoption, and he dies an alien, or slave, or subject to his adoptive father's power, the instituted heir is barred from demanding possession in accordance with the will.
7 The mere desire of a testator that a will which he has executed shall no longer have any validity is not, by itself, sufficient to avoid it; so that, even if he begins to make a later will, which he does not complete because he either dies first, or changes his mind, the first will remains good; it being provided in an address of the Emperor Pertinax to the Senate that one testament which is duly executed is not revoked by a later one which is not duly and completely executed; for an incomplete will is undoubtedly null.
8 In the same address the Emperor declared that he would accept no inheritance to which he was made heir on account of a suit between the testator and some third person, nor would he uphold a will in which he was instituted in order to screen some legal defect in its execution, or accept an inheritance to which he was instituted merely by word of mouth, or take any testamentary benefit under a document defective in point of law. And there are numerous rescripts of the Emperors Severus and Antoninus to the same purpose: 'for though,' they say, 'the laws do not bind us, yet we live in obedience to them.'