CASE 228: Women's Wills
Gaius, Institutiones 1.115a
Olim etiam testamenti faciendi gratia fiduciaria fiebat coemptio: tunc enim non aliter feminae testamenti faciendi ius habebant, exceptis quibusdam personis, quam si coemptionem fecissent remancipataeque et manumissae fuissent: sed hanc necessitatem coemptionis faciendae ex auctoritate divi Hadriani senatus remisit.
Gaius, Institutiones 2.112
Ex auctoritate divi Hadriani senatus consultum factum est, quo permissum est feminis etiam sine coemptione testamentum facere, si modo non minores essent annorum XII; scilicet ut quae tutela liberatae non essent, tutore auctore testari deberent.
(Gaius in the first book of his Institutes)
At one time a “fiduciary sale” (coemptio fiduciaria) was made in order to execute a will. For at that time, with certain exceptions, women had the right to execute a will only if they had made a “sale” and had been remancipated and manumitted. But on the authority of the deified Hadrian, the Senate remitted the requirement of making the “sale.”
(Gaius in the second book of his Institutes)
On the authority of the deified Hadrian, a senatusconsultum was enacted that permitted style='font-style:italic'>sui iuris women to execute a will even without a “sale,” so long as they were at least twelve years old. Obviously, those women who have not been released from tutelage need their tutor’s authorization to make a will.
1. Selling Yourself. This archaic form of “sale” is described in the Discussion to the previous Case.
In the early Republic, the core of the problem was that the household of a sui iuris woman perished with her (see Case 4 at the end), and accordingly her property would normally return to her agnate family. As older principles of family organization declined, women sought ways to leave their property to people other than those of their family of birth; surviving husbands and children were likely candidates. This ceremony was contrived to meet that need. How frequently women made use of it we have no way of telling, but we often hear of womens wills from the late Republic on.2. Hadrian’s Reform. Hadrian (reign: A.D. 117-138) had enacted a decree of the Senate that abolished the need for the “sale” but preserved other conditions. The woman had to be of adult age (see Cases 6-7; as Gaius, Inst. 2.113, notes, women became adults and could write wills sooner than men), and her tutor had to authorize the will. Why might this latter requirement be a problem for a woman who wished to write a will? A womans tutor often came from her family of birth, so the tutor might have a venal reason to resist her writing a will; see Cases 159 and 169 on intestate succession. Is the woman adequately protected against such pressures? Does it appear that he authorized the actual contents of her will?
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