THE NEW CONSTITUTIONS OF THE EMPEROR LEO.
~  XLII  ~
WHERE THERE IS A SUFFICIENT NUMBER OF WITNESSES THE WILL SHALL BE VALID, EVEN THOUGH THEY MAY NOT HAVE ATTACHED THEIR SIGNATURES OR SEALS TO THE INSTRUMENT.



 
S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ).
 

 
The Same Emperor to the Same Stylianus.

  The obscurity of terms affects much of that to which they relate, and, as it were, by enveloping them in a thick cloud, it removes the power of comprehension from the,mind, and prevents giving the administration of affairs a proper direction. Therefore, as We have observed that this obscurity is especially prevalent in those constitutions which have reference to wills, and involves matters in no small perplexity, We have thought it advisable to amend them, and to explain in what way wills should be proved, and how this may be effected by a law which is not ambiguous and can readily be understood. Our predecessors, who have treated of wills, have divided them into two kinds, and have informed Us that they could be either written or unwritten. In addition to this, they have described how, under these circumstances, a will must be executed in order to render it valid, and have stated that, in order for its validity to be established, all the witnesses must sign and attach their seals to it during the life of the testator, if it was written; but in the case of a nuncupative or verbal will, seven credible witnesses must declare that they heard the testator enumerate with his own lips the provisions embraced therein. This having been settled, they add that if a written will does not include everything necessary to render it perfect, that is to say, the signature of the witnesses which confirms the truth of what they say, and their seals which prove their signatures; if the will does not, as I say, contain all this, which must take place before the testator's death, it will be absolutely void and worthless, either as a written or nuncupative testament. This rule, which bears marks of insufficient consideration without calling it defective, is the cause of much confusion and ambiguity. Some authorities hold that such an instrument should be considered as absolutely void; that other persons should not be entitled to the estate of the deceased, and that the latter should not obtain any benefit from it (just as if a dead person could be benefited from anything), meaning that after his death any disposition which he may have made of his property restores, so to speak, life to others. These, as I have stated, are desirous that the testator should not derive any advantage from his own estate. Others, indeed, whose opinion is not so intolerant, think that where the witnesses have not attached their seals to the will, even if it is not valid as a written testament, it should, at least, have the force of an unwritten or nuncupative one. Therefore We, being aware that such perplexity is very injurious to human affairs, adopt the last opinion, and convert the darkness and doubt of the ancient law into clearness and certainty; and We hereby decree that, under such circumstances, the will shall be imperfect, so far as the matters which a written testament should contain are concerned; but that, on the other hand, if the evidence required by a nuncupative will is forthcoming, it should be valid as such; and that when this is not the case, as there is nothing to establish its genuineness, it shall be considered void. And, indeed, is it reasonable, or rather is it not actually absurd and foolish, to deem witnesses worthy of confidence who have not corroborated their evidence by writing, and not consider, as such, those whose evidence is confirmed in this manner? Is not this a shameful and detestable betrayal of equity? What if a will was committed to writing, and its contents communicated to credible witnesses, and the notary who drew it up should become ill, or die suddenly; and the testator should also die soon afterwards, as frequently and unexpectedly happens to men; should those whom he, when dying, thought worthy of his bounty, having been deprived of it on this account, suffer such a wrong? The most unworthy part of this opinion is that the testator, even after his death, experiences its bad effects, and, by annulling his will, it causes him to lose his claim to divine compassion, which, after his decease, his benevolent dispositions ought to give him good reason to expect. Therefore, We decree clearly and formally that where witnesses merely identify the will as that of a certain person it shall not be rejected, but shall be confirmed and ratified; even though the said witnesses may have failed to attach thereto their seals as well as their signatures.