will

It is emphatically the will of the person who makes it, and is defined to be 'the legal declaration of a man's intentions, which he wills to be performed after his death.

The legal declaration of a man's intention respecting the disposition of his property, which he wills to be performed after his death. See 2 Bl. Comm. 309. See Joint Will. The word is of common-law origin, the corresponding civil-law terra being "testament" (q. V.) "Will," "testament," and "last will and testament" are now said to be synonymous. Schouler, Wills, § 2. In general, any instrument executed with the required formalities, conferring no present rights, but intended to take effect on the death of the maker, will be considered to be a will. 4 Wend. (N. Y.) 168; 104 Pa. St. 240. (1) Holographic (or olographic) wills are those written and signed entirely with the testator's own hand. By reason of this, certain formalities in execution are in some jurisdictions dispensed with. (2) Nuncupative wills are those made by oral declaration in the presence of witnesses. They are not in use in the United States, and in England are confined to seamen and soldiers in active service. (3) Mystic wills, in Louisiana, are wills sealed in the presence of witnesses. See "Mystic Testament."

The disposition of one’s property, to take effect after death. Swiub. Wills pt. 1, § 2; Godolphin pt. 1, c. 1, s. 2. The term will, as an expression of the final disposition of one's property, is confined to the English laws and those countries which derive their jurisprudence from that source. The term testamentum, or testament, is exclusively used in the Roman civil law and by the continental writers upon that subject. Some controversy seems to exist whether the word testamentum is strictly derived from testatum or from that in combination with mentis. There does not seem to be much point in this controversy, for in either view the result is the same. It is the final declaration of the person in regard to the disposition of his property. It is his testimony upon that subject, and that is the expression of his mind and will in relation to it. The practice of allowing the owner of property to direct its destination after his death is of very ancient date. Genesis, xlviii. 22; Gal. ill. 15; Plutarch’s Life of Solon; Roman Laws of the Twelve Tables. But wills are not like succession, a law of nature. A stage where they are not recognized always, in every society, precedes the time when they are allowed. In their early growth they were not regarded as a nnfethod of distributing a dead man’s goods, but as a means of transferring the power and authority of a family to a new chief. It is not until the latter portion of the middle ages that they become a mode of diverting property from the family or of distributing it according to the fancy of the owner. Maine, Anc. Law 171-217. Nor is the power to dispose of property by will a constitutional right. It depends almost wholly upon statute; Brettun v. Fox, 100 Mass. 234. See Tax. “The right to take property by devise or descent Is the creature of the law and not a natural right Magoun v. Bank, 170 U. S. 283, 18 Sup. Ct. 591, 42 L. Ed. 1037; U. S. v. Perkins, 163 U. S. 625, 16 Sup. Ct. 1073, 4l L. Ed. 287; Eyre v. Jacob, 14 Gratt. (Va.) 422, 73 Am. Dec. 367; Pullen v. Wake County Com'rs, 66 N. C. 361; this statement is combated vigorously and the position maintained that it is a natural right in Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, {9 L. R. A. (N. S.) 121, 9 Ann. Cas. 711, where a note collects the cases, finding no case agreeing with the one annotated. The right of disposing of property by will did not exist in early times among the ancient Germans, or with the Spartans under the laws of Lycurgus, or the Athenians before the time of Solon. 4 Kent 502, and note. And in England, until comparatively a recent period, this right was to be exercised under considerable restrictions, even as to personal estate. posthumous In operation. Is unknown to archaic law, and is of comparatively recent introduction wherever we find It." Pollock's Notes on Maine’s Ancient Law. The power to devise land did not exist at common law but Is governed by statute; Gibson v. Van Syckle, 47 Mich. 439, 11 N. W. 261. Until the statute of 32 & 34 Henry VIII., called the statute of wills, the wife and children were each entitled to claim of the executor their reasonable portion of the testator’s goods, i. e. each one-third part. So that if one had both a wife and children, he could only dispose of one-third of his personal estate, and if he had either a wife or child, but not both, he could dispose of one-half; Fit/h. N. B. 122 H (b), 9th ed.; 2 Saund. 66, n. (9); 2 Bla. Com. 492. All restrictions are now removed from the disposition of property by will, in England, whether real or personal, by the statute of 1 Viet. c. 26; 3 Jarm. Wills (Randolph & Talcott’s ed.), 731. As to the history of wills In England, see Bigelow, 3 Sel. Essays, Anglo-Araer. L. H. 770 (11 Harv. L. Rev. 69). And in the Roman civil law the children were always entitled to their share, or legitime, being one-fourth part of the estate, of which they could not be deprived by the will of their father. The legitime was by the emperor Justinian increased to one-third part of the estate where there were four or a less number of children, and if more than four then they might claim one-half the estate, notwithstanding the will. Novell. 18, c. 1; 2 Domat, Civil Law 15. See Legitime. According to the civil law the naming of an executor was of the essence of a will; and that constituted the essential difference between a will and a codicil; the latter, not making any such appointment ( absque executons eonstitutione), was, on that account, called an unsolemn last will. Swinb Wills 29. The executor under a Roman will succeeded to the entire legal position of the deceased. He continued the legal personality of the testator, taking all the property as his own, and becoming liable for all the obligations. Maine, Anc. Law 12C. Validity. The homestead laws in some states affect the validity of wills by making void a husband’s devise of homestead land; 3 Jarm. Wills (Rand. & Tal. ed.) 740. See same citation for regulations in various states as to devises to corporations, or for charitable purposes. A testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the state; Weed v. Knorr, 77 Ga. 636, 1 S. E. 167; Russell v. Russell, 84 Ala. 48, 3 South. 900; In re Bissells Will, &3 Neb. 588, 88 N. W. 683. A provision for the purchase and erection of a monument on testators grave is valid; Mellvain v. Ilockaday, 36 Tex. Civ. App. 1, 81 S. W. 54; In re Koppikus Estate, 1 Cal. App. 84, SI Pac. 732. The right of a decedent to recover damages for his death, does not pass by will; Sturges v. Sturges, 126 Ivy. 80, 102 S. W. 884, 12 L. R. A. 1014; Caruthers v. Neal, 12 Ivy. L. Rep. 567, 14 S. W. 599. Provisions annexing to a legacy or devise a condition that it should be forfeited in case the beneficiary contested the will were resorted to very early in England, and were upheld by the courts. The rule established was that where there was probabilis causa Uti yandi, and no gift over of the legacy or devise, an unsuccessful contest of the validity of the will did not forfeit the legacy or decondition would work a forfeiture; 1 Atk. 526. Later it was held that such conditions were not contrary to the policy of the law; 15 M. & W. 727; and a similar decision was rendered by the Privy Council on an appeal from Quebec; L. R. 6 C. P. 1, where the French and civil law is discussed at large. In this country, such conditions have been sustained, though with some difference of opinion as to what constitutes a breach of its condition and its effect Their validity has been upheld in several states; Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; In re Friend’s Estate, 209 Pa. 442, 58 Atl. 853, 68 L. R. A. 447; In re Barandon’s Estate, 41 Misc. 380, 84 N. Y. S. 937; Smithsonian Institution v. Mceeh, 169 U. S. 398, IS Sup. Ct. 396, 42 L. Ed. 793; Fi field v. Van Wyck’s Ex’r, 94 Va. 557, 27 S. E. 446, 64 Am. St. Rep. 745; Rouse v. Branch, 91 S. C. Ill, 74 S. E. 133, 39 L. R. A. (N. S.) 1160, Ann. Cas. 1913E, 1296; Kayhart v. Whitehead, 77 N. J. Eq. 12, 76 Atl. 241, 140 Ain. St. Rep. 575; Moran v. Moran, 144 la. 451, 123 N. W. 202, 30 L. R. A. (N. S.) SOS; In re Miller’s Estate, 156 Cal. 119, 103 Pac. 842. 23 L. R. A. (N. S.) 868; Ma.ssie v. Massie, 54 Tex. Civ. App. 617, 118 S. W. 219. In these cases generally there was no gift over, and as to the conflict of decisions on this subject, see 14 Y. L. J. 58. The mere filing of a caveat does not constitute a contest within such provision; In re Me Cahan’s Estate, 221 Pa. 18S, 70 Atl. 711. A provision that if any devisee should attempt, or aid in attempting, to prevent the proof of the will, the expense of probating it should be taken from their shares thereunder, is valid; Kayhart v. Whitehead, 78 N. J. Eq. 580, 81 Atl. 1133. Where the net income of a trust fund was given to testator’s son for life, with remainder over, a condition that the gift should fail, if the son contested the will, was void; In re Wall, 76 Misc. 106, 136 N. Y. Supp. 452. In some cases when the legatee had reasonable cause to contest he was held not barred by the provision as to forfeiture; In re Friend’s Estate, 209 Pa. 442, 58 Atl. 853, 68

A will is the legal expression of a man's wishes as to the disposition of his property after his death. Code Ga. 1882, § 2394; Swinb. Wilis, § 2. An instrument in writing, executed in form of law, by which a person makes a disposition of his property, to take effect utter hla death. Except where it would be inconsistent with the manifest intent of the legislature, the word "will" shall extend to a testament, and to a codicil, and to an appointment by will, or by writing in the nature of a will, in exercise of a power; and also to any other testamentary disposition. Code Va. 1887, § 2511. A will is an instrument by which a person makes a disposition of his property, to take effect after his decease, and which is, in its own nafure, ambulatory and revocable during his life. It is this ambulatory quality which forms the characteristic of wills; for though a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, yet the postponement is in such case produced by the express terms, and does not result from the nature of the instrument. McDaniel v. Johns, 45 Miss. 641. And see Jasper v. Jasper, 17 Or. 590, 22 Pac. 152; Leathers v. Greenacre, 53 Me. 567; Cover v. Stem, 67 Md. 449, 10 Atl. 231, 1 Am. St. Rep. 406; George v. Green, i3 N. H. 524; In re Harrison's Estate, 196 Pa. 576, 46 Atl. 888; Bayley v. Bailey, 5 Cush. (Mass.) 249; Reagan v. Stanley, 11 Lea (Tenn.) 324; Lane v. Hill, 63 N. H. 398, 44 Atl. 597; Conklin v. Eger-ton, 21 Wend. (N. Y.) 486. A wlll, when it operates upon personal property, is sometimes called a "testament," and when upon real estate, a "devise;" but the more general and the more popular denomination of the instrument embracing equally real and persona] estate is that of "last will and testament." 4 Kent, Comm. 501.

In criminal law. The power of the mind which directs the action of a man.

In Scotch practice. That part or clause of a process which contains the mandate or command to the officer. Bell.

— Statute of wills. See Wills Act, infra,

That faculty of the mind which chooses between one object or end and another; a disposition of real and personal property to take effect after the death of the person who makes it; the instrument by which such a disposition is made. v. Ambulatorius, etc.; Mineupative will; Quum in testamento, etc.; Voluntas, etc. Wills, statute of: the statute 33 Hen. VIII., c. 1, by which a person seised in fee simple, socage tenure, was enabled to devise all his lands at pleasure, except to corporations, and a person seised in chivalry, two-thirds.

In Scots- law. That part of a process which contains the mandate,

1. The formal instrument by which a person may make disposal of his property, to take effect at his death. See Testament; also BurriU, for any distinction between " will " and " testament." A will is an instrument by which a person makes a disposition of his property, to take effect after his decease, and which is, in its own nature, ambulatory and revocable during his life. It is this ambulatory quality which forms the characteristic of wills; for, though a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, yet the postponement is in such case produced by the express terms, and does not result from the nature of the instrument. Mc Daniel i-. Johns, 45 Miss. 632. " Will," as used in Gen. Sts. ch. 92, § 8, — providing that wills made out of the state which might be proved and allowed in the state where made, may be proved and allowed in Massachusetts, — includes nuncupative wills. Slocomb v. Slocomb, 13 Allen, 38. 2. The power of the mind which disary condition of gfuilt, ia, generally, that the will ot the accused should have concurred in his act. Willingly and wittingly cannot be deemed words conveying the same idea. The one relates to the will, and means " freely," or " voluntarily; " while the other relates to the wit or understanding, and means " knowingly," or " designedly." An indictment under a statute punishing an act when done wittingly, which alleges that the accused did it willingly, is bad. Harrington V. State, 54 Miss. 490. Wills act. In England,!. The Stat. 32 Hen. Vni. ch. 1, passed in 1540, by which persons seised in fee-simple of lands holden in socage tenure were enabled to devise the same at their will and pleasure, except to bodies corporate; and those who held estates by the tenure of chivalry were enabled to devise two-third parts thereof. 2. The Stat. 7 Wm. IV. & 1 Vict. ch. 26, passed in 1837, and also called Lord Langdale's act. This act permits of the disposition by will of every kind of interest in real and personal estate, and provides that all wills, whether of real or of personal estate, shall be attested by two witnesses, and that such attestation shall be sufficient. Other important alterations are effected by this statute in the law of wills. Mozley i-W.