Making a will

(Inst.Gai.2.100.-50., D.28.1.)

Modestinus, Encyclopaedia, book 2: A will is a lawful expression of our wishes concerning what someone wishes to be done after his death. (D.28.1.1.)

A Roman testator's main wish would be to appoint an heir.

Gaius, Institutes, book 2: If we are inquiring whether a will is valid, we ought first of all to con­sider whether the person who made the will had testament! factio, and then, if he did have it, we may investigate whether he made a will in accordance with the rules of the civil law. (D.28.1.4,)

Let us follow Gaius' advice.

8.4.1 Capacity

Capacity in relation to wills (testamenti factio) comprised three discrete aspects: the testator had to have capacity to make the will; a witness required capacity to per­form his function; and an heir or legatee needed capacity to take under a will.

8.4.1.1 Capacity to make a will

Labeo, Posthumous Works, Epitomized by favolenus, book I: In the case of someone who is mak­ing his will, at the time when he makes the will, soundness of mind is required, not health of body. (D.28.1.2.)

As Labeo makes clear, the testator had to have capacity at the time he made the will. Moreover, the capacity had to continue, as a general rule, until the testator's death. If he lost capacity, the will failed, even if capacity was restored before death. That at least was the strict ius civile position. The praetor, however, would often grant bonorum possessio in such a case to the heirs under the failed will.

The basic requirements for capacity to make a will were that the testator should be a citizen of full age, i.e. the age of puberty, and sui iuris:

Gaius, Provincial Edict, book 17: A person in parental power has not the right to make a will, and this is so much the case that even if his father gives him permission, he still cannot thereby lawfully make a will. (D.28.1.6pr.)

This text certainly represents the general rule, but there were exceptions. For exam­ple, a son-in-power could make a will of his peculium castrense (see 5.1.2.2) while on military service and, after Hadrian, even after leaving service. And there were excep­tions to the rule that non-citizens could not make wills. For example, servi publici (public slaves) could leave half their peculium by will.

An insane person obviously lacked capacity but could make a will during a lucid interval. If a will had been made before the onset of insanity, it remained valid—an exception to the general rule on loss of capacity. Persons declared to be intesta- biles (see 4.4.2.6) lacked capacity to make a will; so did prodigals while subject to the interdict restraining them from acting independently. However, any will made before the interdict was valid:

Ulpian, Sabimis, book 1: A person interdicted by statute from managing his property cannot make a will, and if he has done so, it is invalid by operation of law; but any will which he may have antedating the interdiction will be valid.... (D.28.1.18pr.)

The position as regards women was more complicated. Originally, women lacked capacity since they could not take part in the procedure necessary for a comitial will, the earliest type of will known to Rome (see 8.4.2.1). Later, when the man- cipatory will (see 8.4.2.3) became standard, the general rule emerged that free­born women could make wills if their guardian consented (but he had no control over the will's provisions). Since consent was compellable, except in the case of a statutory guardian, many women obtained an unrestricted right of testation.

8.4.1.2 Capacity to witness a will

The majority of people who lacked capacity to make wills were also incapable of witnessing them, e.g. interdicted prodigals, intestabiles, and the insane (except in a lucid interval). But, some could witness a will even if they could not make one, and vice versa. It is not possible to state a general principle other than that a wit­ness normally had to be a male citizen above puberty. Consequently, women could not witness wills (although they could make them). Late classical texts state that Latins, including Junian, could be witnesses; but this conflicts with Gaius, at least as regards the mancipatory will (Inst.Gai.2.104.). Slaves were excluded:

Ulpian, Sabimis, book I: It is also right that a slave cannot be used in solemn acts as he is totally excluded from participation in the civil law, and even in the praetor's edict. (D.28.1.20.7.)

However, where a person acted as witness, and was believed to be entitled to do so, the attestation was valid even though it later transpired that the witness had been a slave. Persons who belonged to the family of the testator were excluded from act­ing as witnesses. But heirs, if unrelated to the testator, could act as witnesses to the will under which they were appointed. Gaius advised against this practice (Inst. Gai.2.108.) and Justinian went a step further by barring heirs. Legatees, on the other hand, were never barred from witnessing the will that benefited them. The same is true of modern English law but the English legatee, unlike the Roman one, cannot take the gift. The potential conflict of interests that arises when the same person is both beneficiary and witness did not appear to worry the Romans sufficiently to lead them to change their rule. Horace had the following advice for the witness asked to peruse a will: 'Say no, and put the tablets aside; but get a quick glance at page one line two—whether you are sole heir or co-heir with a multitude' (Satires II, V, 51 if., quoted in Crook, Law and Life of Rome, 128).

Ulpian, Edict, book 39: We ought to examine the condition of witnesses at the time when they sealed the will not at the time of death; if, therefore, they were suitable persons to be used when they sealed, it does not matter what may have happened to them afterward. (D.28.1.22.1.)

The witness had to understand that he was witnessing a will (unlike English law, where it suffices for the signature of the testator to be witnessed). However, the wit­ness did not have to know or understand the contents of the will.

8.41.3 Capacity to take under a will

In order to take under a will, a person had to have testamenti factio (which in this context was described as 'passive' and meant the right to be appointed an heir or be made a legatee) and the ius capiendi—the right actually to take under the will, A person with testamenti factio would normally have the ius capiendi, but not neces­sarily, as we shall see later.

Basically, anyone with commercium had passive testamenti factio; but no general principle can be formulated to account for all the persons who were regarded as lacking capacity—it is necessary to deal with specific cases. Foreigners, dediticii, and intestabiles were excluded, as were miscreants such as heretics (under Justinian) and widows who remarried within the customary period of mourning. Some cases, however, require special consideration:

(a) Slaves They could be appointed heirs and made legatees but could only take when manumitted. It was normal for a master to free his slave in the will when conferring such benefits. If a slave was made heir in someone else's will, he could not accept the inheritance without his master's permission.

(b) Women Under the lex Voconia 169 BC, a woman could not be appointed as an heir by a testator who was listed in the wealthiest class of citizens in the census. The purpose of this law has been much debated.

(c) Religious beneficiaries In pagan times gifts to the gods became public property. After the conversion to Christianity, the Church was regarded as having capacity to take, the gift being administered by the bishop of the locality of the testator.

(d) Incertae personae 'Unascertained persons' were those who were described in such a general way that many people could qualify within the description—e.g. ‘whoever comes to my funeral'; 'the first persons to become consuls after my death' (lnst.Gai.2.238.). Their precise identity was unknown to the testator. However, such persons could take if they were within a defined class, e.g. 'whichever of my relatives now living is the first to arrive at my funeral'.

The most important category of unascertained persons consisted of postumi— those born after the making of the testator's will. The general rule in pre-classical law was that persons could not take under a will made before their birth. This rule caused such serious problems that it was gradually whittled away, thus enabling postumi to benefit in classical law (see 8.7.1.1).

A beneficiary had to have capacity when the will was made (another reason for the original exclusion of postumi) and when the will became operative, i.e. on the testator's death. Intervening lack of capacity was discounted, however:

Ulpian, Sabinas, book 4\ We are accustomed to say that intervening periods are not prejudicial... such as when, say, a Roman citizen who has been appointed heir became a peregrine in the lifetime of the testator and then attained Roman citizenship; the periods in between do not prejudice him. (D.28.5.6.2.)

8.4.1.4 lus capiendi ('The right to take')

Certain persons had testamenti factio but not ins capiendi. That meant that they could not take under a will without satisfying certain conditions. For example, Junian Latins could not take unless they became citizens before the expiry of the time allowed for the acceptance of an inheritance. This rule was part of the Augustan policy aimed at encouraging marriage and increasing the birth rate. So were the provisions of the leges caducariae, i.e. the lex Julia de maritandis ordinibus 18 BC and the lex Papia Poppaea AD 9, which penalized the unmarried and the child­less: unmarried men aged between twenty-five and sixty, and unmarried women between twenty and fifty could take nothing under a will, while married persons without children could take only a half (but only one-tenth under a will of their spouse). These penalties could be avoided if the requirements of the legislation were satisfied before it was too late to claim under the will. There were important excep­tions to the leges caducariae: they did not apply, for example, to ascendants and descendants of the testator to the third degree, or to cognates to the sixth degree. Such relations had the ins capiendi even if they were unmarried or childless.

What happened to the gifts that were wholly or partially forfeited by the opera­tion of the leges caducariae? The general rule was that they passed to the other heirs under the will providing that they had children. In the absence of such heirs the gifts went to legatees with children, failing whom the Treasury took. If there were ascendants or descendants to the third degree among the heirs or legatees, they took their share of the forfeited gifts, even if they had no children. These provisions of the leges caducariae, like so much of Augustus's social engineering legislation, proved somewhat unpopular; but they appear to have survived until the conver­sion to Christianity, when the state's interest in increasing the birth rate ceased.

8.4.2 Formalities

Various types of will were known in the history of Roman law, each with its own specific formal requirements. Gaius tells us (Inst.Gai.2.101.) that originally there were two kinds of will: the comitial will and the will inprocinctu ('prepared for bat­tle') (see Johnston, 'Succession', 202-3). There later followed the mancipatory will, the praetorian will, the tripartite will, and other forms of will-making.

8.4.2.1 Comitial will

The earliest Roman will was very much a public affair, made before the comitia curiata. In its will-making form, this comitia met only twice annually. The will, hav­ing received prior pontifical approval, was declared to the assembly. It is not clear whether the assembly's function was to vote for the will or simply to witness it. The public element in this form of will was probably prompted by the need to supervise any potential departure from the intestacy rights of sui heredes. Not surprisingly, the life of the comitial will did not prove enduring: it became obsolete during the Republic.

8 4.2.2 Wil) in procinctu

This was the wartime counterpart of the comitial will. It consisted of a declaration by a soldier of his wishes before his comrades (those who fought beside him) in proelium, i.e. before battle (Inst.Gai.2.101.). It became obsolete by the late Republic.

8.4.23 The mancipatory will

This form of will became the standard ius civile will from the early Republic to the later Empire. It originally consisted of a mancipatio (with witnesses and a scale holder) of the testator's estate to a familiae emptor—a ‘buyer of the estate’. He was given oral instructions by the testator as to how the estate was to be distributed. Gaius describes the familiae emptor as originally being in the position of an heir (Inst.Gai.2.103.); but in reality, he probably acted more like a trustee. Whatever the case, he had to carry out the testator's expressed wishes.

By the late Republic the form had changed radically. A mancipatio was still necessary, but the familiae emptor was present in a purely formal capacity—to validate the transaction. And it became the practice to write down the testator's instructions on wax tablets; the written record in the tablets became the actual will. Once the record became the essence of the mancipatory will, important con­sequences followed. The will was now secret, if the testator so desired, revocable and operated only on death (the early mancipatory will had been similar to an inter vivos transaction).

There was never a need for the will to be signed by the testator, although he was apparently required to grasp it during the mancipatio. The will did not have to be written by the testator—an amanuensis could do it. One of the most remarkable passages in the Digest suggests some uncertainty (and a distinct lack of politeness) among the jurists over the question whether an amanuensis could be regarded as a witness:

Celsus, Digest, book 15: Domltius Labeo to Celsus, his friend, greetings. I ask you whether a person, who, when he had been asked to write a will, also sealed the will when he had written it, is to be regarded as one of the witnesses. Juventius Celsus to Labeo, his friend, greetings. I do not understand what it is that you have consulted me about or else your consultation is really stupid; for it is more than ridiculous to doubt whether someone has been lawfully used as a witness, when he also wrote the will. (D.28.1.27.)

The witnesses to the mancipatio, together with the scale holder and the familiae emptor, had to write their names in the will and had to seal it (usually done with a ring). The various formalities had to be carried out as essentially one transaction; an interruption could invalidate the will:

Ulpian, Sairinus, book 2: A will ought to be made in one continuous act. By 'one continuous act' is meant that no act unconnected with the will should intervene; but if he [the testator] does something relevant to the will, the will is not vitiated. (D.28.1.21.3.)

In English law, the position is different: the necessary formalities for executing a will need not be carried out in one operation. However, it has been held that where a testator signs a will before writing out its provisions, the will is invalid unless these things were done as 'all one operation': Wood v Smith [1992] 3 All ER 556, CA. For a good survey of the formalities required for a Roman will, see now Jakab, E, ‘Inheritance’, in OHRLS, 498-S09.

In the classical period, although the theoretical necessity for a mancipatio contin­ued, it seems that the ceremony was increasingly omitted in practice. It sufficed, if the will stated that a mancipatio had been performed.

8.4.2.4 The praetorian will

Although the mancipatory will was far more convenient than the comitial will, it was nevertheless an unwieldy creature, certainly as long as an actual mancipation was required. So the praetors were prepared to grant bonorum possessio to an heir appointed in a will that was sealed by seven witnesses, even though no mancipatio had been performed. At first, the grant was normally made sine re, which meant that the heir under the praetorian will would be defeated by those entitled as the ius civile heirs on intestacy, if they proved their entitlement. But,, in the classical period, the praetorian heir was normally successful, since grants were increasingly made cum re (depending on the circumstances).

Although the praetorian will became effective in practice to pass the inher­itance to the appointed heir, there is no clear evidence that it was efficacious in other respects. It seems, for example, that it could not be used to manumit slaves formally or to appoint guardians. Nevertheless, the result of praetorian intervention was to add a considerable measure of flexibility to will-making in Rome for several centuries, even if some confusion and uncertainty may have been caused thereby.

8.4.2.5 Wills in the late Empire

A number of changes occurred in the late Empire concerning formalities for mak­ing wills. By far the most important innovation was the tripartite will. It became the standard form of will following its introduction by Theodosius II in AD 439. It was named tripartitum because its formal requirements were drawn from three sources—the ius civile, praetorian law, and imperial innovation. The will had to be made before seven witnesses, who had to seal it; and it had to contain a subscriptio by the testator and witnesses—an acknowledgment, usually in the form of a signa­ture (with appropriate words) of the document.

Moreover, it was possible in late law to make public, nuncupative, and holograph wills. Public wills were those entered on the records of a court or deposited in State archives. They did not need witnesses other than the appropriate officials. The nun­cupative will was an oral declaration of the testator's wishes before seven witnesses. Holograph wills, i.e. those written entirely in the testator's hand, were accepted under Constantine as operative, even if not witnessed, for the purpose of benefiting descendants. They were later regarded as valid for all purposes, but Justinian con­fined them, if unwitnessed, to benefiting descendants only.

8.4.2.6 Soldiers'wills

The formal requirements of a mancipatory will were ill-suited to soldiers on active military service, although such wills were occasionally made by soldiers. See Crook, Law and Life of Rome, 131-2, for the text of the will of a Roman trooper made in Alexandria in AD 142. It seems that soldiers were first allowed to make wills infor­mally under Julius Caesar, long after the will in procinctu had become obsolete. Eventually, Trajan (end of the first century AD) regularized the position by mandate:

Ulpian, Edict, book 45:... following the openness of my heart toward those excellent and most faithful fellow soldiers, I thought that provision should be made for their inexperience [in legal matters], so that whatever the way in which they made their wills, their wishes should be confirmed. Therefore, let them make their wills in any way they wish, let them make them in any way they can, and let the bare wishes of the testator suffice to settle the distribution of their property. (D.29,1.tpr.)

As the mandate confirms, the will could take virtually any form but there had to be some evidence of the testator's wishes. Oral wills were acceptable as long as a benefi­ciary was not the sole witness. The will remained valid during the period of service and for a year after discharge. The privilege extended to the substantive content of the will in that some of the rules and restrictions that were generally applicable to testators had no application to soldiers' wills, e.g. foreigners and Junian Latins could be made heirs; the lex Falcidia did not apply (see 8.6.3); nor did the querela procedure (see 8.7.2). The privilege of making an informal will was not restricted solely to soldiers:

Ulpian, Edict, book 45: Likewise, there is no doubt that ships' masters and captains of the tri­remes of the fleets can make a will according to military law. In the fleets, all the rowers and sailors count as soldiers. Likewise, watchmen are soldiers, and there is no doubt that they can make a will in accordance with military law. (D.37.13.1.1.).:

English law retains a concept of privileged wills for soldiers and seamen that owes something to Roman law. It is said that the draftsman of the Statute of Frauds 1677—which first allowed English soldiers to make privileged wills—was versed in Roman law. And in Drummond v Parish (1843) 3 Curt 522, 163 ER 812, Fust J. traced the privilege granted to soldiers back to Julius Caesar and suggested that Roman law should be used as an aid to interpreting the English legislation. However, there are important differences, e.g. the English soldier's will remains valid until revoked, i.e. it does not lapse after a year following discharge.

8.4.3 Appointment of heirs

(Inst.Gai.2.152.-73., lnst.2.14., D.28.5., C.6.24.)

A will was invalid unless it contained the appointment of an heir (institutio heredis). Gaius described the appointment of an heir as 'the source and foundation of the whole will' (Inst.Gai.2.229.). Indeed, a will did not have to contain any other provision:

Ulpian, Sabinus, book 1: Someone who does not propose to leave legacies and does not pro­pose to disinherit anyone can make his will in five words, as by saying 'Lucius Titius be my heir'; however, what is written here relates to someone who is not making his will in writing. And he will be able to make his will even in three words, as by saying 'Lucius be heir'; for both 'my' and 'Titius' are superfluous. (D.28.5.1.3.)

Surprisingly, the English will can match the Roman for economy of words: in Thorn v Dickens [1906] WN 54, 'All for mother' was held to constitute a valid will (in favour of the testator's wife). It is hard to envisage a will—in English or Roman law—consisting of less than three words.

8.4.3.1 Form of appointment

Ulpian, Sabinus, book 1: A person who is making a will should generally start the will with the institution of the heir. It is also permissible to begin with a disherison which he makes by name; for the deified Trajan said in a rescript that it is possible to disinherit a son by name even before the institution of the heir. (D.28.5. tpr.)

Anything written before the appointment was invalid if it lessened the rights of the heir, e.g. gifts to other beneficiaries, manumission of slaves. However, disherison of others was valid, even if written before the appointment of the heir, since the heir's interests were not thereby lessened. The appointment of a guardian before that of an heir was probably valid, although the Sabinians took the contrary view. Justinian ruled that the order of provisions was irrelevant as long as an heir was appointed. The appointment had to be made in a formal manner, using an impera­tive form of words, e.g. 'Let Titius be my heir’. Consequently, T appoint Titius to be my heir' or 'I wish Titius to be my heir' were considered insufficient. The need for such fine distinctions was obviated in the fourth century AD, when it was decreed that any form of words was acceptable, provided that the intention to appoint an heir was clearly expressed. At all times, however, it was essential that the heir should be named or sufficiently identified.

Since an heir stepped into the shoes of the deceased, the appointment could not specify on which day it was to take effect, e.g. ‘Let Balbus be my heir on the tenth day after my death.' Such a qualification was simply ignored—the appointment operated from the testator's death. A similar rule applied to an appointment that limited the duration of the heir's office: the limitation was ignored as it conflicted with the basic rule 'once an heir, always an heir'.

8.4.3.2 Plurality of heirs

As many heirs could be appointed as the testator wished. They shared the inherit­ance equally unless the testator specified a different division. Estates were some­times divided into twelfths (a convenient number for the purposes of division) when there was a plurality of heirs. For example, a testator with three sons could appoint one as heir to, say, five-twelfths, another to four-twelfths, the remaining son to three-twelfths.

It was a basic principle that a man could not die partially testate, partially intes­tate: the whole inheritance normally had to be governed either by the provisions of the will or by the law of intestacy. Thus, if the testator failed to apportion the whole of the inheritance but had shown his intent to divide it into shares, the undisposed part accrued to the heirs (in proportion to their respective declared shares) and did not pass as intestate estate.

8.4.3.3 Conditional appointment

In the later Republic, it came to be accepted that heirs could be appointed sub­ject to a suspensive condition—a condition precedent, i.e. one that had to be satisfied before the heir entered on the inheritance, e.g. 'Let Balbus be my heir if he swims across the Tiber.' However, as suspensive conditions were potentially a serious hurdle for the designated heir to clear, they were subject to close scru­tiny. What were considered illegal, immoral, and impossible conditions were struck out, the appointment taking effect unconditionally. Some jurists (mainly Proculians) argued that such conditions vitiated the whole will, but their view did not prevail:

Ulpian, Sabinus, book 5: It is settled that an institution made under an impossible condition or with some other blunder is not vitiated. (D.28.7.1.)

What was the test of impossibility? It was objective: the condition had to be impos­sible in the nature of things—it was not impossible if it could conceivably happen, even if the designated heir found it personally impossible or very difficult to achieve. For the condition to be struck out, the impossibility had to exist when the testator died; supervening impossibility caused the heir to fail to take, although he might have a claim for compensation in appropriate circumstances:

Ulpian, Edict, book 18:... if I should be instituted heir on the condition of freeing the slave Stichus and Stichus is killed after the testator's death, I can sue for the value of the inher­itance in the assessment of my damages; for the condition failed because of the killing. (D.9.2.23.2.)

In the previous scenario, I can sue under the lex Aquilla (see generally 10.2) for the consequential loss resulting from the killing of the slave, i.e. the loss of the inherit­ance. Had Stichus been killed before the testator's death, 1 would have taken as heir since the condition would have lapsed on account of initial impossibility.

The rules on impossibility were subject to a special rule concerning sons-in- power: if a testator appointed a son as heir subject to a condition which, though not impossible, was not reasonably within the son's power to satisfy, the whole will failed since the son was deemed to have been disinherited.

Apart from illegality, immorality, and impossibility, a condition could be ignored if it was made by a testator of unsound mind (although the whole will would then be at risk):

Modestinus, Replies, book 8: A certain man appointed an heir in his will under a condition such as, 'if he throws my remains into the sea'; the question was asked, when the instituted heir had not met the condition, whether he should be expelled from the inheritance. Modestinus replied: the heir is to be praised rather than accused for not throwing the testator's remains into the sea according to his wishes but delivering them for burial, as a reminder of the con­dition of men. But this point must first be investigated, whether a man who imposed such a condition was even not of sound mind. (D.28.7.27pr.)

What was the position if someone with an interest in its non-satisfaction frustrated the fulfilment of the condition? The rule was that the condition was treated as if it had been satisfied. And the position was similar if a party refused to cooperate in the performance of the condition, where such cooperation was essential:

Pomponius, Sabinus, book 8: A legacy provides: 'Let Titius be heir, if he sets up statues in the town'; [Titius] is ready to erect them but the townsmen do not grant him a site; Sabinus and Procuius say that he will be heir and that the law is the same in the matter of legacies. (D.35.1.14.)

If a condition was resolutive (i.e. one which attempted to divest the heir of his posi­tion), it was normally ignored since it conflicted with the rule 'once an heir, always an heir'. A condition must not deprive an heir of the inheritance once it was vested in him.

8.43.4 Substitution

(lnst.Gai.2.174.-84., lnst.2.15.-16., D.28.6., C.6.26.)

A Roman testator, if anxious to avoid intestacy, would worry about the possibility of the will being invalidated on account of the failure of the appointed heirs to take the inheritance. Such failure could arise if the heirs predeceased the testator, or because of their incapacity to take, or their unwillingness to do so (in some cases). Thus, it was common for substitute heirs to be appointed (substitutio vulgaris—'common substitu­tion'). The list of substitutes often included someone who could not refuse to accept, e.g. a slave, thereby ensuring that the will would be operative. See Frier and McGinn, Casebook, 347-8 and Jakab, 'Succession', 499-500, for a discussion of a famous case, the causa curiana, which turned on the issue of substitution in a will.

The appointment of substitutes was subject to the same rules as applied to heirs; e.g., an imperative form of words had to be used. The testator could appoint as many substitutes as he wished for each heir. The substitute was a conditional heir, taking only if the heir for whom he was the substitute failed to take. The substitute stepped into the position that the heir would have taken. He was thus entitled to the same share and was liable to the same burdens as the failed heir, subject to any contrary provision by the testator. A substitute could be both heir and substitute at the same time, e.g. Balbus could be heir to a part of the inheritance, and a substitute to an heir as regards another part. Indeed, the two heirs could be reciprocal substi­tutes, i.e. each a substitute to the other in respect of the other's share of the inherit­ance. This was frequently done in the case of co-heirs. An heir who had accepted a share in the inheritance was deemed to accept any additional share vesting in him as a substitute—he could not accept one and refuse the other:

LUpian, Sabinus, book 9: If a person instituted heir for a share and then substituted to Titius has acted as heir before the inheritance is offered to him under the substitution, he will be heir under the substitution also, because the share accrues to him even if he does not want it. (D.29.2.3Spr.)

A chain of representation operated. Suppose that A is a substitute to B, while C is a substitute to A. C is regarded as a potential substitute to B as well and will take B's share if A fails to do so.

When a paterfamilias appointed a child below the age of puberty as heir, it was cus­tomary to appoint a substitute in case the child, having succeeded as heir, died before attaining puberty. If no substitute had been appointed, and the child died, intestacy would result since a child below puberty could not make a will. This form of substitu­tion was described as pupillary. It was usual to add a 'common substitution' (see ear­lier) in case the child failed to become heir in the first place. Often the same person was appointed—it was a 'double' substitution but using the same substitute. Double sub­stitutions became so standard in the classical period that Marcus Aurelius (latter half of the second century AD) decreed that one kind of substitution implied the other:

Modestinus, Advice on Drafting, sole book:... we now apply the rule that when a father has substituted an heir to his impubes son in one of the two eventualities, he is regarded as having made a substitution for both eventualities, [namely] whether his son has not become heir or has become heir and has died impubes. (D.28.6.4pr.)

The appointment of young children as heirs was potentially fraught with difficulty, not least because of the possibility that a pupillary substitute might be tempted to ensure that the child did not attain puberty. To forestall such temptation, it was cus­tomary to appoint the pupillary substitute in a separate sealed document annexed to the will, and to direct that the document was not to be opened before the child's death. Of course, once the child attained puberty the pupillary substitution lapsed.

(On pupillary substitution, see Gardner and Wiedemann, Roman Household, 119-21, for a selection of literary texts on the subject.)

8.5