Testament

In civil law. The appointment of an executor or testamentary heir, according to the formalities prescribed by law. Domat, liv. 1, tit. 1, § 1. At first there were only two sorts of testaments among the Romans,-— that called calatis comitiis, and another called in proeinctu. In the course of time, these two sorts of testament having become obsolete, a third _ form was introduced, called per aes et libram, which was a fictitious sale of the inheritance to the heir apparent. The inconveniences which were experienced from these fictitious sales again changed the form of testaments, and the praetor introduced another, which required the seal of seven witnesses. The emperors having incr€ased the, solemnity of these testaments, they were called "written" or "solemn" testaments, to distinguish them from "nuncupative" testaments, which could be made without writing. Afterwards military testaments were introduced in favor of soldiers actually engaged in military service. (1) A testament calatis comitiis, or made in the comitia, — that is, the assembly of the Roman people, — ^was an ancient manner of making wills, used in times of peace among the Romans. The comitia met twice a year for this purpose. Those who wished to make such testaments caused to be convoked the assembly of the people by these words, calatis comitiis. None could make such wills that were not entitled to be at the assemblies of the people. This form of testament was repealed by the law of the Twelve Tables. (2) A civil testament is one made according to all the forms prescribed by law, in contradistinction to a military testament, in making which some of the forms may be dispensed with. Civil testaments are more ancient than military ones; the former were in use during the time of Romulus, the latter were introduced during the time of (3) A common testament is one which is made jointly by several persons. Such testaments are forbidden in Louisiana (Civ. Code La. art. 1565), and by the laws of France (Civ. Code 968), in the same words, namely:* "A testament cannot be made by the same act, by two or more persons, either for the benefit of a third person, or under the title of a reciprocal or mutual disposition." (4) A testament ab irato is one made in a gust of passion or hatred against the presumptive heir, rather than from a desire to benefit the devisee. When the facts of unreasonable anger are proved, the will is annulled as unjust, and as not having been freely made. See "Ab Irato." (5) A mystic testament (called a "solemn testament," because it requires more formality than a nuncupative testament) is a form of making a will which consists principally in enclosing it in an envelope and sealing it in the presence of witnesses. This kind of testament is used in Louisiana. The following are the provisions of the Civil Code of that state on the subject, namely: The mystic or secret testament, otherwise called the "close testament," is made in the following manner: The testator must sign his dispositions, whether he has written them himself, or has caused them to be vrritten by another person. The paper containing these dispositions, or the paper serving as their envelope, must be closed and sealed. The testator shall present it thus closed and sealed to the notary and to seven witnesses, or he shall cause it be closed and sealed in their presence; then he shall declare to the notary, in the presence of the witnesses, that that paper contains his testament written by himself, or by another by his direction, and signed by him, the testator. The notary shall then draw up the act of superscription, which shall be written on that paper, or on the sheet that serves as its envelope, and that act shall be signed by the testator and by the notary and the witnesses. 5 Mart. (La.) 182. All that is above prescribed shall be done without interruption or turning aside to other acts; and in case the testator, by reason of any hindrance that has happened since the signing of thetestament, cannot sign the act of superscription, mention shall be made of the declaration made by him thereof, without its being necessary in that case to increase the number of witnesses. Those who know not how or are not able to write, and those who know not how or are not able to sign their names, cannot make dispositions in the form of the mystic will. If any one of the witnesses to the act of superscription knows not how to sign, express mention shall be made thereof. In all cases the act must be sig:ned by at least two witnesses. Civ. Code La. arts. 1577-1580. witnesses. It was not necessary that it should have been in writing; the proof of it was by parol evidence. See "Nuncupative Will." In Louisiana, testaments, whether nuncupative or mystic, must be drawn up in writing, either by the testator himself, or by some other person under his dictation. The custom of making verbal statements, that is to say, resulting from the mere deposition of witnesses who were present when the testator made known to them his will, without his having committed it or caused it to be committed to writing, is abrogated. Nuncupative testaments may be made by public act, or by act under private signature. Civ. Code La. arts. 1568-1570. (7) An olographic testament is one which is written wholly by the testator himself. In order to be valid, it must be entirely written, dated, and signed by the hand of the testator. It is subject to no other form. See Civ. Code La. art. 1581. See "Will." TESTAMENTA LATISSIMAM INTERpretationetn habere debent. Wills ought to have the broadest interpretation. Jenk. Cent. Cas. 81.

In Civil Law. The appointment of an executor or testamentary heir, according to the formalities prescribed by law. Domat, llv. 1, tit. 1, s. 1. At first there were only two sorts of testaments among the Romans,— that called calatis comitiis, and another called in procinctu. (See below.) In the course of time, these two sorts of testament having become obsolete, a third form was introduced, called per css et libram, which was a fictitious sale of the Inheritance to the heir apparent. The Inconveniences which were experienced from these fictitious sales again changed the form of testament and the praetor Introduced another, which required the eeal of seven witnesses. The emperors having increased the solemnity of these testaments, they were called written or solemn testaments, to distinguish them from nuncupative testaments, which A testament calatis comitiis, or made in the comltla,— that is, the assembly of the Roman people, —was an ancient manner of making wills used in times of peace among the Romans. The comltia met twice a year for this purpose. Those who wished to make such testaments caused to be convoked the assembly of the people by these words, calatis comitiis. None could make such wills that were not entitled to be at the assemblies of the people. This form of testament was repealed by the law of the Twelve Tables. A civil testament is one made according to all the forms prescribed by law, In contradistinction to a military testament, in making which some of the forms may be dispensed with. Civil testaments are more ancient than military ones; the former were in use during the time of Romulus, the latter were Introduced during the time of Coriolanus. See Hist, de la Jurisp. Rom. de M Tcrrason, p. 119. A common testament Is one which is made jointly by several persons. Such testaments are forbidden in Louisiana. Civ. Code of La. art. 1565, and by the laws of France, Code Civ. 968, in the same words, namely: “A testament cannot be made by the same act, by two or more persons, either for the benefit of a third person or under the title of a reciprocal or mutual disposition." A testament ab irato is one made in a gust of passion or hatred against the presumptive heir, rather than from a desire to benefit the devisee When the facts of unreasonable anger are proved, the will is annulled as unjust and as not having been freely made. See Ab Ikato. A mystic testament (called a solemn testament, because it requires more formality than a nuncupative testament) is a form of making a will which consists principally in enclosing it in an envelope and sealing it in the presence of witnesses. A nuncupative testament was one made verbally. See Nuncupative Wil,l. An olographic testament is one which Is written wholly by the testator himself. In order to bo valid; it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form See La. Civ. Code, art. 1381.

A disposition of personui property to take place after the owner's decease, according to his desire and direction. Pluche v. Jones, 54 Fed. 865, 4 C. C. A. 622; Aubert's Appeal, 109 Pa. 447, 1 Atl. 336; Conklin v. Egerton, 21 Wend. (N. Y.) 436; Ragsdale v. Booker, 2 Strob. Eq. (S. C.) 348. A testament is the act of last will, clothed with certain solemnities, by which the testator disposes of his property, either universally, or by universal title, or by particular title. Civ. Code La. art. 1571. Strictly speaking, the term denotes only a will of personal property; a will of land not being called a "testament." The word "testament" ls now seldom used, except in the heading of a formal will, which usually begins: "This Is the last will and testament of me, A. B.," etc. Sweet. 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 batter opinion is that it is a simple word formed from the Latin testor, and not a compound word. Mozley & Whitley.

— Military testament. In English law. A nuncupative will, that is, one made by word of mouth, by which a soldier may dispose of his goods, pay, and other pers6nal chattels, without the forma and solemnities which the law requires in other cases. St. 1 Viet. c. 26, § 11.

— Mutual testaments. Wills made by two persons who leave their effecte reciprocally to the survivor.

— Mystic testament. In the law of Louisiana. A sealed testament. The mystic or secret testament, otherwise called the "closed testament," is made in the following manner; The testator must sign his dispositions, whether he has written them himself or has caused them to be written by another person. The paper contuining those dispositions, or the paper serving as, their envelope, must be closed and sealed. The testator shall present it thus closed and sealed to the notary and to seven witnesses, or he shall cause it to be closed and sealed iu their presence. Then he shall declare to the notary, in presence of the Withesses, that that paper contains his testament written by himself, or by another by his direction, and signed by him, the testator. The notary shall then draw up the act of superscription, which shall be written on that paper, or on the sheet that serves as its envelope, and that act shall be signed by the testator, and by the notary and the witnesses. Civ. Co.de La. art. 1584.

A disposition of property, to take effect after the death of the person making it; originally, per!iaps, a disposition of personal property.

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. 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.

common, a term used in the civil law. A common testament is one which is made jointly by several persons. Such testaments are forbidden in Louisiana, Ciy. Code of Lo. art. 1565, and by the laws of France, Code Civ. 968, in the same words, namely, “ A testament cannot be made by the same act, by two or more persons, either for the benefit of a third person, or under the title of a reciprocal or mutual disposition.” ment is one made according to all the forms prescribed by law, in contradistinction toa military testament,: io making which some of the forms; may be dispensed with. Civil taments are more ancient than tary ones; the former were in use! during the time of Romulus, the lat-; ter were introduced during the time! of Coriolanus. See Hist. de la Jurisp. Rom. de M. Terrason, p. 119. TESTAMENT CALATIS