king tesramcnrarv dispositions h\’ using a modified formof nuiucipatio. This practice was confirmed by the l-xclvc Idhles in a pro\ ision { ’Fti/i vO that apparently read something like: Uri Icgnssit super pccnuia tutelave smie rei, itii ins esto'"^ ("As he made a legacy o\er his propertv \peciitiid\ and the guardianship of goods, so let the law he"). The prcn ision talks of legating, not of appointing an heir; the word pecHtiia (property) does not hate, as fhmilui has, the implication of propertx' treated as a unit, and it would thus seem that at that time this type of testamentary disposition did not extend, as it did later, to the appointment of the heir entitled to the estate.'' Although no heir could thus he appointed at the time of the I'lrelI'c I'ahles, this is, nonetheless, a \ ery creatiye use of mancipatio. d'his yariant miiucipatio could he used to appoint a tutor under the will, a result \ery different from transferring res numcipi, and to transfer res nee unvieipi. d'he \ ariant shows that the wording of nuitieipiitio was not absolutely fixed and that no real weighing out of copper had to he inyohed. 'There is no evidence that the fiimilineeniptor c\cv acquired an\’ rights or duties as a result of the ceremony,''’ and the legatee became owner automaticallv' on the testator's death, f lence the ceremony did not immediatelv transfer e\ en res nunieipi at the moment it was performed. This use seems to ha\ e been the result of prit ate initiati\e, hence the clause confirming its legal effectiteness in the I'-velve ’Vnbles. But scholars seem to ha\ e dif'ficultx' in accepting the opportunism in\(dyed in this kind of development. Thus, Max Kaser talks in terms of a div ided ownership between the testator and the fiimilide emptor and subsequently between the fdftiilide emptor and the legaEpitome Ulpiani 11.14; cf. D.50.i6.53pr. Rather different versions appear in Cicero, De invendone 2.50, 148 (cf. Rhetorica ad Herennium 1.13.23) and 6.2.224 (cf. D.50.16.120). For the argument establishing Ulpian's as the original version, see Watson, XII Tables, p. 52. 15 See Watson, XII Tables, p. 52 for the full argument. 16 See Watson, XII Tables, p. 64 for the argument. 70
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