THE NEW CONSTITUTIONS OF THE EMPEROR LEO. |
~ XLI ~ |
IN
CITIES FIVE WITNESSES, AND ON A JOURNEY AND IN THE COUNTRY THREE, SHALL
BE SUFFICIENT TO ESTABLISH THE VALIDITY OF A WILL. |
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( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ). |
The
Same Emperor to the Same Stylianus. |
As
all the concerns of human life which require the presence of witnesses
necessarily derive their force therefrom, this is especially true where
arrangements are made in contemplation of the last moments of our lives,
and which demand confirmation of this kind; for there is no other way
to determine what is right under such circumstances, except by means
of witnesses. Hence, since it is absolutely necessary for the dispositions
of men about to depart from life to be valid, there is the more need
to have these established by testimony. But as what the law strictly
requires cannot always be accomplished, and its demands must be brought
within the bounds of possibility (for when what is absolutely prescribed
cannot be accomplished, the best means available must be adopted), it
has seemed to Us proper to fix the number of witnesses who must be present
at the execution of wills. This opinion was also entertained by Our
Father, of worthy memory, but what he enacted concerning it was not
found to be perfectly applicable. For while the ancient legislators
held different views on this point, as one thought that seven witnesses
should be called, and another that five were necessary (that is to say,
seven in cities, where, on account of the number of people there would
be no difficulty in obtaining them; and five in the country, and on
the highways, because fewer men could be depended upon and be found
in such places) ; when, I say, this rule was established, Our Father,
without taking into consideration the greater facility of procuring
witnesses in cities, decreed that both there and in the country five
would be sufficient to establish the validity of a will. I think he
came to this conclusion because he remembered how extremely lacking
in virtue men are in these days. This conclusion, however, has already
been stated as not entirely responsible, for anyone might say that the
same number of witnesses is not required in cities and in the country,
and that in the country as well as on the highways the number available
is certainly less. Hence, not desiring to make the same mistake, We
hereby decree that five witnesses must be called in the cities, and
three on the highways, in the country, and in other inhabited places,
to establish the validity of a will. |
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