10 No will, again, can be witnessed by the person instituted heir, or by any one in his power, or by a father in whose power he is, or by a brother under the power of the same father: for the execution of a will is considered at the present day to be purely and entirely a transaction between the testator and the heir. Through mistaken ideas on this matter the whole law of testamentary evidence fell into confusion: for the ancients, though they rejected the evidence of the purchaser of the family and of persons connected with him by the tie of power, allowed a will to be witnessed by the heir and persons similarly connected with him, though it must be admitted that they accompanied this privilege with urgent cautions against its abuse. We have, however, amended this rule, and enacted in the form of law what the ancients expressed in the form only of advice, by assimilating the heir to the old purchaser of the family, and have rightly forbidden the heir, who now represents that character, and all other persons connected with him by the tie referred to, to bear witness in a matter in which, in a sense, they would be witnesses in their own behalf. Accordingly, we have not allowed earlier constitutions on this subject to be inserted in our Code.
11 Legatees, and persons who take a benefit under a will by way of trust, and those connected with them, we have not forbidden to be witnesses, because they are not universal successors of the deceased: indeed, by one of our constitutions we have specially granted this privilege to them, and, a fortiori, to persons in their power, or in whose power they are.
12 It is immaterial whether the will be written on a tablet, paper, parchment, or any other substance: and a man may execute any number of duplicates of his will, for this is sometimes necessary, though in each of them the usual formalities must be observed. For instance, a person setting out upon a voyage may wish to take a statement of his last wishes along with him, and also to leave one at home; and numberless other circumstances which happen to a man, and over which he has no control, will make this desirable.
14 So far of written wills. When, however, one wishes to make a will binding by the civil law, but not in writing, he may summon seven witnesses, and in their presence orally declare his wishes; this, it should be observed, being a form of will which has been declared by constitutions to be perfectly valid by civil law.
TITLE XI. OF SOLDIERS' WILLS
Soldiers, in consideration of their extreme ignorance of law, have been exempted by imperial constitutions from the strict rules for the execution of a testament which have been described. Neither the legal number of witnesses, nor the observance of the other rules which have been stated, is necessary to give force to their wills, provided, that is to say, that they are made by them while on actual service; this last qualification being a new though wise one introduced by our constitution. Thus, in whatever mode a soldier's last wishes are declared, whether in writing or orally, this is a binding will, by force of his mere intention. At times, however, when they are not employed on actual service, but are living at home or elsewhere, they are not allowed to claim this privilege: they may make a will, even though they be sons in power, in virtue of their service, but they must observe the ordinary rules, and are bound by the forms which we described above as requisite in the execution of wills of civilians.
1 Respecting the testaments of soldiers the Emperor Trajan sent a rescript to Statilius Severus in the following terms: 'The privilege allowed to soldiers of having their wills upheld, in whatever manner they are made, must be understood to be limited by the necessity of first proving that a will has been made at all; for a will can be made without writing even by civilians. Accordingly, with reference to the inheritance which is the subject of the action before you, if it can be shown that the soldier who left it, did in the presence of witnesses, collected expressly for this purpose, declare orally who he wished to be his heir, and on what slaves he wished to confer liberty, it may well be maintained that in this way he made an unwritten testament, and his wishes therein declared ought to be carried out. But if, as is so common in ordinary conversation, he said to some one, I make you my heir, or, I leave you all my property, such expressions cannot be held to amount to a testament, and the interest of the very soldiers, who are privileged in the way described, is the principal ground for rejecting such a precedent. For if it were admitted, it would be easy, after a soldier's death, to procure witnesses to affirm that they had heard him say he left his property to any one they pleased to name, and in this way it would be impossible to discover the true intentions of the deceased.'
2 A soldier too may make a will though dumb and deaf.
3 This privilege, however, which we have said soldiers enjoy, is allowed them by imperial constitutions only while they are engaged on actual service, and in camp life. Consequently, if veterans wish to make a will after their discharge, or if soldiers actually serving wish to do this away from camp, they must observe the forms prescribed for all citizens by the general law; and a testament executed in camp without formalities, that is to say, not according to the form prescribed by law, will remain valid only for one year after the testator's discharge. Supposing then that the testator died within a year, but that a condition, subject to which the heir was instituted, was not fulfilled within the year, would it be feigned that the testator was a soldier at the date of his decease, and the testament consequently upheld? and this question we answer in the affirmative.