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. |
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( 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. |
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