APPENDIX A Specimen Roman Will

This Roman will, though fictitious, illustrates what a real Roman will could have looked like. It is indebted to the specimen offered by F H.

Let my elder son, Marcus, be my heir as to one-half.¹ Let him make a formal declaration of acceptance within one hundred days of my death; if he does not, let him be disinherited and let his children take equal portions of his share, on condi­tion that he emancipate them if they are still in his power at the time of my death.²

Let my elder daughter, Sempronia, because she has never failed to show me the greatest affection, nor has she omitted to heed my counsels, be my heir as to one- quarter. Let her make a formal declaration of acceptance within one hundred days of my death; if she, my most dutiful daughter, does not, let her be disinherited and my nephew Publius Sempronius be my heir as to her share.

Let my loyal and devoted wife, Claudia, be my heir as to one-twelfth. Let her make a formal declaration of acceptance within one hundred days of my death; if she does not, let her be disinherited and my brother, Gaius Sempronius, be my heir as to her share.

Let my younger daughter be disinherited; she knows the reasons why and must be content with the legacies I leave her, which are generous under the circumstances.³

Let my son Lucius, who shows so little promise, be my heir as to one-sixth.

If a child is born to me after the making of this will, whether he be born when I am alive or after I am dead, let him be my heir as to one-sixth, with the shares of the other heirs reduced in proportion.⁵ Let him make a formal declaration of ac­ceptance within three hundred days of my death; if he does not, or if he does and, having taken his share, dies before reaching the age of legal majority, let the same person be my heir as nominated to substitute for Lucius. If that person or Publius Sempronius or Gaius Sempronius or any of the children of my son Marcus do not make a formal declaration of acceptance within one hundred days of the date when his share is offered to him, let each of the other heirs take a part of that share in pro­portion to the amount I have granted them in this will.⁶

size=1 color=black face="Book Antiqua">If none of my heirs or substitute heirs makes a formal declaration of acceptance within the time periods set forth, let my slave Auctus, who is now forty years old, be free and my heir.⁷ If Auctus is no longer alive, let my slave Rufio, who is at least thirty-five years old, be free and my heir. If Rufio is no longer alive, let the oldest slave who is in my familia at the time of my death and is over thirty years old be free and my heir, except for Cordax and Glycera, whom I absolutely forbid any of my heirs ever to manumit.

I appoint my brother, Gaius, as tutor to my son Lucius and my nephew Publius as tutor to the one I have not named; perhaps he will have better fortune than I in reigning in her unacceptable behavior.

Whoever shall be my heir or heirs shall be liable to give and bequeath the fol­lowing as legacies:

•       To my beloved wife, Claudia, the usufruct of the Cornelian farm for as long as she lives.⁸

•       To my beloved wife, Claudia, as to the 50,000 sesterces in cash that came to me on account of my wife, the same amount in place of this dowry⁹

•       Again to my dearest, Claudia, the clothing, womens toiletries, all the jew­elry, of gold and of silver, that has been made, bought, and acquired for her, all of it.¹⁰

•       To my sons, as advance legacies, their peculia.¹¹

•       To my eldest daughter, Sempronia, the apple of my eye, the preferential legacy of the house in which she lived as a child.¹²

•       To that other daughter, the usufruct of the farm in Dacia, as long as she lives; it is more than she deserves.

•       To that same daughter, a life-size marble, togate statue of myself, that she should forever contemplate the father whom she has so deeply wronged.

•       To my friends and business associates, the worthy Cn.

•       Again to my excellent and most dutiful elder daughter, Sempronia, I ratify the gift I made to her, in contemplation of my impending demise, of her grand­mother Marcia's jewelry¹⁴

•       To my best friend, T Inebrius Bibulus, enjoyment for his life of the contents of my wine cellar.

size=1 color=black face="Book Antiqua">•       To my most devoted friends [a list of ten names follows], ten pounds of gold each.

•       To my most loyal freedmen and freedwomen (a list of eight names) five pounds of gold each.

I impose on my son Marcus the fideicommissum of passing on 500,000 sesterces to his younger brother, Lucius, when Lucius reaches the age of twenty-five.

I order the following to be free, all of whom are older than thirty years of age: Coactus, the accountant, on condition that he render his accounts; Fortunata, the nurse; Lycas, the ship captain, on condition that he render his accounts, with his pe­culium as a legacy.

[Instructions for funeral and monument.]

If any of my heirs, except for Lucius, fails to obtain one quarter of what he would be entitled to if I had died intestate, let his share be made up to that amount at the discretion of a good man.¹⁵

If I shall have left anything written and sealed in codicils or by any other kind of disposition, I desire it to be as valid as if it were written and sealed in this my will.

All that I have above ordered to be written and done, I wish to be given and done by any heir or possessor of my estate I shall have, even upon intestacy; and I similarly entrust to him that the things I shall order to be given shall be given and done.¹⁶

C. Petronius bought the household and its resources with a single sesterce for the purpose of making this will.¹⁷ L.

[Date and place of the witnessing of the will.]

NOTES

1. The first paragraphs are devoted to instituting heirs. Sui heredes had to be expressly disinherited, sons by name and others, including daughters, by unambiguous reference: see Cases 178-179.

2.  The grants to the sons of Marcus and others in default of acceptance by the primary heirs are “common substitutions”; see Case 172. If the substitute heirs accept their shares, they are also liable to pay the legacies that are laid out later in the will.

3. On the wisdom of giving an explanation for disinheritance, see the Discussion in Case 179 and also Case 194. Should the testator have been more forthcoming?

4. The grant in substitution to Lucius is both a “common” and a “pupillary” substitution; see Cases 172-174. In the latter case, why is the identity of the heir kept a secret, only to be revealed upon Lucius's death?

5.  Any child born after the writing of a will could count as a suus heres. On providing for postumi, see Cases 182-185.

6.  This clause is an example of reciprocal substitution; see the Discussion in Case 172. What is the testator getting at here?

7.  If the inheritance was vested in a slave through substitution, it was usually because all free persons mentioned in the will had refused to accept the inheritance on the ground that it was insolvent.

8.  This is a very common type of usufruct; in fact, usufruct may have been developed ini­tially as a support for widows; see Case 203.

9.  On the “return of the dowry” pro dote, see Case 200.

10.    On generic legacies and things acquired for a wife, see Cases 201-202.

11.    On advance legacies (praelegata), especially of peculia, see Case 204.

12.    On preferential legacies (legata per praeceptionem), see Case 204. How does this legacy differ in its practical effects from that to the sons?

13. On the legacy of a release from liability, see Case 205.

14. On gifts mortis causa, see Cases 211-212.

15.This clause is designed to avoid difficulty with the querella inofficiosi testamenti; see Cases 192-197. It excludes Lucius and does not mention the daughter who has been disin­herited. Does this wording adequately protect the will from attack?

16.This clause effectively converts the entire will into a fideicommissum, valid even upon intestacy. Do you see how?

17. This is a mancipatory will; on the procedure, see Case 171.