proved before a court by the oath of the executor and, unless the attestation clause is in a certain form, by the affidavit of one of the subscribing witnesses; or, if the validity of the will is disputed, by examination of the witnesses on oath in the presence of the parties interested. The will itself is deposited in the registry of the Court of Probate; a copy of it in parchment, under the seal of the Court of Probate, delivered to the executor along with a certificate of proof, is the only proper evidence of his right to intermeddle with the personal estate of the testator.

The following were the corresponding formalities of Roman law:Tabulae testamenti aperiuntur hoc modo, ut testes vel maxima pars eorum adhibeatur qui signaverint testamentum; ita ut, agnitis signis, rupto lino, aperiatur et recitetur, atque ita describendi exempli fiat potestas, ac deinde signo publico obsignatum in archium redigatur, ut si quando exemplum ejus interciderit, sit unde peti possit.

Testamenta in municipiis, coloniis, oppidis, praefectura, vico, castello, conciliabulo facta, in foro vel basilica praesentibus testibus vel honestis viris inter horam secundam et decimam diei recitari debebunt, exemploque sublato ab iisdem rursus magistratibus obsignari quorum praesentià constat aperta.

Testamentum lex statim post mortem testatoris aperiri voluit, et ideo, quamvis sit rescriptis variatum, tamen a praesentibus intra triduum vel quinque dies aperiendae sunt tabulae; ab absentibus quoque intra eos dies cum supervenerint: nec enim oportet tam heredibus aut legatariis aut libertatibus quam necessario vectigali moram fieri, Paulus, Sent. Rec. 4, 6.

'A will is opened in the following manner: the witnesses, or the majority, who affixed their seals, are summoned and acknowledge their seals, the cord is broken, the tablets are opened, the will is read, a copy is taken, a public seal is affixed to the original, and it is deposited in the archives, so that if the copy is ever lost there may be a means of making another.

'In municipalities, colonies, towns, prefectures, wicks, castles, staples, a will must be read in the forum or basilica, in the presence of the attesting witnesses or of respectable persons, between eight o'clock in the morning and four o'clock in the afternoon; and, as soon as a copy has been made, must be sealed up again by the magistrate in whose presence it was opened.

'A will is intended by the law to be opened immediately after

the death of the testator; accordingly, though rescripts have varied, it is now the rule that, if all the parties are present, three or five days is the interval within which the tablets must be opened; if they are absent, the same number of days after they are assembled; in order that heirs, legatees, manumitted slaves, and the military treasury (entitled, 3 § 125, to vicesima hereditatum, i. e. 5 per cent. on the value of Roman citizens' testamentary suecessions), may come into their rights without unnecessary delay.'

In cases of urgency, when the will was opened in the absence of the attesting witnesses in the presence of respectable persons, it was afterwards forwarded to the witnesses for the verification of their seals, Dig. 29, 3, 7. Every one who desired it had the power of inspecting a will and taking a copy, Dig. 29, 3, 8.

BOOK III.

DE RERUM UNIVERSITATIBUS ET DE

OBLIGATIONIBUS.

DE HEREDITATIBUS QUAE AB INTESTATO DEFERUNTUR.

§ 1. Intestatorum hereditates lege XII tabularum primum ad suos heredes pertinent.

§ 2. Sui autem heredes existimantur liberi qui in potestate morientis fuerint, veluti filius filiave, nepos neptisve ex filio, pronepos proneptisve ex nepote filio nato prognatus prognatave. nec interest utrum naturales sint liberi, an adoptivi. Ita demum tamen nepos neptisve et pronepos proneptisve suorum heredum numero sunt, si praecedens persona desierit in potestate parentis esse, sive morte id acciderit sive alia ratione, veluti emancipatione: nam si per id tempus quo quis moritur filius in potestate eius sit, nepos ex eo suus heres esse non potest. idem et in ceteris deinceps liberorum personis dictum intellegemus.

§ 3. Uxor quoque quae in manu est sua heres est, quia filiae loco est; item nurus quae in filii manu est, nam et haec neptis loco est. sed ita demum erit sua heres, si filius cuius in manu erit, cum pater moritur, in potestate eius non sit. idemque dicemus et de ea quae in nepotis

§ 1. Intestate successions by the law of the Twelve Tables devolve first to self-successors.

§ 2. Self-successors are children in the power of the deceased at the time of his death, such as a son or a daughter, a grandchild by a son, a great-grandchild by a grandson by a son, whether such children are natural or adoptive: subject, however, to this reservation, that a grandchild or great-grandchild is only self-successor when the person in the preceding degree has ceased to be in the power of the parent either by death or some other means, such as emancipation; for instance, if a son was in the power of the deceased at the time of his death, a grandson by that son cannot be a self-successor, and the same proviso applies to the subsequent degrees.

§3. A wife in the hand of the deceased is a self-successor, for she is a quasi daughter; also a son's wife in the hand of the son, for she is a quasi granddaughter; subject, however, to the proviso that she is not self-successor if her husband is in the power of his father at the

manu matrimonii causa sit, quia time of his father's death. A wife proneptis loco est.

§ 1. The words 'testate' and 'intestate,' in the language of English lawyers, are only applicable, I believe, to a deceased perThe awkwardness of having no corresponding adjectives to couple with succession must be my apology for sometimes speaking of testate or intestate succession.

For the meaning of suus heres, see commentary on 2 § 157 and 2 § 123.

DE LEGITIMA AGNATORUM SUCCESSIONE.