Testament

The formal document by which one may make disposition of his property to take effect at his death; a will. Testamentary: connected with or pertaining to w Uls. Testator: the maker of a will. As to the distinctions which have been taken between "testament" and "will," see Burrill. At the present day, the words are used interchangeably, but the frequent recurrence of the phrase, "last will and testament," indicates a vague idea that the two are different in some features, and that an instrument which combines the characteristics of both should have the double name. Testament is the true declaration of a man's last will as to that which he would have to be done after his death. It is compounded, according to Justinian, from testatio mentis; but the better opinion is, that it is a simple word formed from the Latin tester, and not a compound word. Modey In the strict sense of a testament, it concerns personal property merely.

Conklin V. Egerton, 21 Wend. 430, 436.

Testamentary capacity

That measure of mental ability which is recognized in law as sufficient for the making a win. A perfect capacity is usually tested by this, that the individual talks and discourses rationally and sensibly, and is fully capable of any rational act requiring thought, judgment, and reflection. Weakness of mind, however, may exist in many different degrees, without making a man intestable. If he be legally compos mentis, be he wise or unwise, he is the (fisposer of his own property, and his will stands as the reason for Ws actions. Duffield v. Eobeson, 2 Hair. {Del.) 379. Testable capacity amounts to nothing more than a knowledge by the testator of what he is about, and how he is disposing of his property, with the purpose so to do it.

Sutton V. Sutton, 5 Barr. {Del.) 459.

The definition of a sound and disposing mind and memory, given by Judge Washproved as a definition of testamentary capacity.

Stackhouse v. Horton, 15 N. J. Eg. 202.

Testamentary cause

A suit or proceeding involving proof, validity, or construction of a will, and brought in a court of probate or ecclesiastical Jurisdiction. Testamentary causes now belong to the ecclesiastical jurisdiction. They were originally cognizable in the courts of common law, viz. the county courts, and afterwards transferred to the jurisdiction of the church by the favor of thie crown, as a natural consequence of granting to the bishops the administration of intestates' effects. Jacob. These causes that were cognizable formerly in the ecclesiastical courts are now cognizable in the court of probate. Brown, Testamentary causes are causes relating to the validity and execution of wills. The phrase is generally confined to those causes which were formerly matters of ecclesiastical jurisdiction, and are now dealt with by the court of probate. Mozky ^ W.

Testamentary guardian

A person appointed by a father, in his last wiU and testament, to be the guardian of his child, until he or she attains the age of twenty-one years. The power of ap-. pointing such a guardian was first conferred on the father by Stat. 12 Car. II. ch.

24.

See Guardian.

See Guardian.

Testamentary matters

This phrase, as used in Ohio Const, art. 4, § 8, defining the jurisdiction of the probate court, does not include the right of a. child, born after the execution of the will of its parent, to contribution.

Mc Garry v. Smith, 22 Ohio St. 190.

Testamentary paper

A document which is not in form a will, but is of that nature, and may, if allowed and acted on, regulate the disposal of the writer's property after death. Under modern statutes of wills, which preclude a paper from being admitted to probate at all unless fully and formally a will, the phrase has lost importance.