or Last Will. Testaments both Justinian and Sir Edward Coke agree to be so called, because they are testamentum mentis: an etymon which seems to favour too much of conceit; it being plainly a substantive derived from the verb testari, in like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology; voluntatis nostrae juxta sententia de eo, quod quis post mortem suam fieri velit: which may be thus rendered into English, "the legal declaration of a man's intentions, which he wills to be performed after his death." It is called sententia, to denote the circumspection and prudence with which it is supposed to be made: it is voluntatis nostrae sententia, because its efficacy depends on its declaring the testator's intention, whence in English it is emphatically styled his will; it is juxta sententia; that is, drawn, attested, and published, with all due solemnities and forms of law: it is de eo, quod quis post mortem suam fieri velit, because a testament is of no force till after the death of the testator. These testaments are divided into two sorts; written, and verbal or nuncupative; of which the former is committed to writing: the latter depends merely upon oral evidence, being declared by the testator in extremis, before a sufficient number of witnesses, and afterwards reduced to writing. But as nuncupative wills and codicils (which were formerly more in use than at present when the art of writing is become more general) are liable to great impositions, and may occasion many perjuries, the statute of frauds, 29 Car. II. c. 3. enacts, 1. That no written will shall be revoked or altered by a subsequent nuncupative one, except the same be in the lifetime of the testator reduced to writing, and read over to him, and approved; and unless the same be proved to have been so done by the oaths of three witnesses at the least, who, by statute 4 and 5 Anne, c. 16. must be such as are admissible upon trials at common law. 2. That no nuncupative will shall in any wise be good, where the estate bequeathed exceeds 30l. unless proved by three such witnesses, present at the making thereof (the Roman law requiring seven), and unless they or some of them were specially required to bear witness thereto by the testator himself; and unless it was made in his last sickness, in his own habitation or dwelling-houle, or where he had been previously resident ten days at the least, except he be surprised with sickness on a journey, or from home, and dies without returning to his dwelling. 3. That no nuncupative will shall be proved by the witnesses after fix months from the making, unless it were put in writing within fix days. Nor shall it be proved till fourteen days after the death of the testator, nor till process hath first issued to call in the widow, or next of kin, to contest it if they think proper. Thus hath the legislature provided against any fraud in setting up nuncupative wills, by fo numerous a train of requisites, that the thing itself has fallen into disuse; and hardly ever heard of, but in the only instance where favour ought to be shewn to it, when the testator is surprised by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, not any loose idle discourse in his illness; for he must require the bystanders to bear witness of such his intention; the will must be made at home, or among his family or friends, unless by unavoidable accident, to prevent impositions from strangers: it must be in his last sickness; for if he recovers, he may alter his dispositions, and have time to make a written will: it must not be proved at too long a distance from the testator's death, lest the words should escape the memory of the witnesses; nor yet too hastily and without notice, lest the family of the testator should be put to inconvenience or surprize. As to written wills, they need not any witness of their publication. We speak not here of devices of lands, which are entirely another thing, a conveyance by statute, unknown to the feudal or common law, and not under the same jurisdiction as personal testaments. But a testament of chattels, written in the testator's own hand, though it has neither his name nor seal to it, nor witnesses present at its publication, is good; provided sufficient proof can be had that it is his hand-writing. And though written in another man's hand, and never signed by the testator, yet if proved to be according to his instructions and approved by him, it hath been held a good testament of the personal estate. Yet it is the safer and more prudent way, and leaves less in the breast of the ecclesiastical judge, if it be signed or sealed by the testator, and published in the presence of witnesses; which last was always required in the time of Bracton; or rather he in this respect has implicitly copied the rules of the civil law. No testament is of any effect till after the death of the testator: Nam omne testamentum morte confirmatum est, et voluntas testatoris est ambulatoria sive ad mortem. And therefore, if there be many testaments, the last will overthrows all the former; but the republication of a former will revoke one of a later date, and establishes the first again. Regularly, every person hath full power and liberty to make a will, that is not under some special prohibition by law or custom: which prohibitions are principally upon three accounts; for want of sufficient discretion; for want of sufficient liberty and free-will; and on account of criminal conduct.

1. In the first species are to be reckoned infants, under the age of 14 if males, and 12 if females; which is the rule of the civil law. For though some of our common lawyers have held that an infant of any age (even four years old) might make a testament, and others have denied that under 18 he is capable; yet as the ecclesiastical court is the judge of every testator's capacity, this case must be governed by the rules of the ecclesiastical law. So that no objection can be admitted to the will of an infant of 14, merely for want of age; but if the testator was not of sufficient discretion, whether at the age of 14 or 24, that will overthrow his testament. Madmen, or otherwise non computus, idiots or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted with drunkenness,—all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void.

2. Such persons as are intestable for want of liberty or freedom of will, by the civil law are of various kinds; as prisoners, captives, and the like. But the law of England does not make such persons absolutely intestable; but only leaves it to the discretion of that court to judge upon the consideration of their particular circumstances of dures, whether or no such persons could be supposed to have liberum animum testandi. And with regard to feme-coverts, our laws differ still more materially from the civil. Among the Romans there was no distinction; a married woman was as capable of bequeathing as a feme-sole. But with us a married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 and 35 Hen. VIII. c. 5, but also she is incapable of making a testament of chattels, without the licence of her husband. For all her personal chattels are absolutely his own; and he may dispose of her chattels real, or shall have them to himself, if he survives her: it would be therefore extremely inconsistent to give her a power of defeating that provision of the law, by bequeathing those chattels to another. The queen-consort is an exception to this general rule, for she may dispose of her chattels by will, without the consent of her lord; and any feme-covert may make her will of goods which are in her possession in outer droit, as executrix or administratrix; for these can never be the property of the husband: and if she has any pin-money or separate maintenance, it is said she may dispose of her savings thereout by testament, without the controul of her husband. But if a female sole makes her will, and afterwards marries, such subsequent marriage is esteemed a revocation in law, and entirely vates the will.

3. Persons incapable of making testaments on account of their criminal conduct, are in the first place all traitors and felons, from the time of conviction; for then their goods and chattels are no longer at their own disposal, but forfeited to the king. Neither can a felo de se make a will of goods and chattels, for they are forfeited by the act and manner of his death; but he may make a devise of his lands, for they are not subject to any forfeiture. Outlaws also, though it be but for debt, are incapable of making a will so long as the outlawry subsists, for their goods and chattels are forfeited during that time. As for persons guilty of other crimes, short of felony, who are by the civil law precluded from making testaments (as usurpers, libellers, and others of a worse stamp), at the common law their testaments may be good. And in general the rule is, and has been so at least ever since Glanvil's time, quod liberum sit cuiusque ultima voluntas.

Testaments may be avoided three ways: 1. If made by a person labouring under any of the incapacities before-mentioned; 2. By making another testament of a later date; and, 3. By cancelling or revoking it. For though I make a last will and testament irrevocable in the strongest words, yet I am at liberty to revoke it; because mine own act or words cannot alter the disposition of law, so as to make that irrevocable which is in its own nature revocable. For this, saith Lord Bacon, would be for a man to deprive himself of that which, of all other things, is most incident to human condition; and that is, alteration or repentance. It hath also been held, that, without an express revocation, if a man, who hath made his will, afterwards marries and hath a child, this is a presumptive or implied revocation of his former will which he made in his state of celibacy. The Romans were also wont to lay aside testaments as being inofficios, deficient in natural duty, if they disinherited or totally failed by (without assigning a true and sufficient reason) any of the children of the testator. But if the child had any legacy, though ever so small, it was a proof that the testator had not lost his memory or his reason, which otherwise the law presumed; but was then supposed to have acted thus for some substantial cause: and in such case no querela inofficii testamenti was allowed. Hence probably has arisen that groundless vulgar error of the necessity of leaving the heir a shilling, or some other express legacy, in order to disinherit him effectually; whereas the law of England makes no such wild supposition of forgetfulness or infancy; and therefore, though the heir or next of kin be totally omitted, it admits no inofficii to set aside such a testament.

in Scots Law. See LAW, No clxxxi. 2. &c.

Old and New. See BIBLE and SCRIPTURE.