De testamentis et de his, qui testamenta facere non possunt: theses XL

and equity, we consistently assert that the aforementioned types of Wills belong to Civil Law.

We shall show that the faculty of making a will itself is not granted by kindness or grace, but belongs to one by mere right itself.

Furthermore, we judge the best method of discussing Wills to be that by which one first treats the persons making the wills, and subsequently the formalities of Wills. We choose to examine only the former chapter in this discussion.

In which we believe we must conclude as follows: Everyone is able to make a Will, to whom it has not been forbidden by some law.

Therefore, we must see about those persons to whom the making of a Will is forbidden: which happens for various reasons.

And first indeed, all who are subject to the power of another are prohibited from making a Will.

Therefore, a son or daughter under family power filius familias a child under the legal authority of the father does not have the right to make a Will, even if the parent, under whose power they are, has permitted it; and not even regarding adventitious property property acquired from sources other than the father, the usufruct of which does not belong to the father.

However, we think with Bartolus that this right can be abolished and established by statute, so that it may be permitted for a son or daughter under family power to make a Will.

Likewise, slaves do not have the capacity to make a Will: however, those registered adscriptitij serfs/bound laborers...