TERTIUS INTERVENIENS, civil law. One, who claiming an interest in the subject or thing in dispute in action between other parties, asserts his right to act with the plaintiff, to be joined with him, and to recover the matter in dispute because he has an interest in it or to join the defendant¹, and with him, oppose the interest of the plaintiff, which it is his interest to defeat. He differs from the intervener or he who interpleads in equity². 4 Bouv. Inst. n. 3819, note.

TEST. Something by which to ascertain³ the truth respecting another thing. 7 Penn. St. Rep. 428; 6 Whart. 284. Vide Religious Test.

TESTACY. The state or condition of dying after making a will, which was valid⁴ at the time of testator's death.

TESTAMENT⁵, civil law. The appointment of an executor or testamentary heir, according to the formalities prescribed by law. Domat, Liv. 1, tit. 1, s. 1.

2. At first there were only two sorts of testaments⁶ 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 obsolete⁷, a third form was introduced, called per aes et libram, which was a fictitious⁸ 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 increased the solemnity of those 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.

3. Among the civilians⁹ there are various kinds of testaments, the principal of which are mentioned below.

4. 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 dispensed¹⁰ 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. Terrason, p. 119.

5. A common testament is one which is made jointly¹¹ by several persons. Such testaments are forbidden in Louisiana, Civ. 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 mutual¹² disposition¹³."

6. 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 amonn the Romans. The comitia met twice a year for this purpose. Those who wished to make such testaments caused to be convoked¹⁴ the assembly of the people by these words, calatis comitiis. None could make such will's that were not entitled to be at the assemblies of the people. This form of testament was repealed¹⁵ by the law of the Twelve Tables.

7. Testament ab irato, a term used in the civil law. A testament ab irato, is one made in a gust¹⁶ of passion or hatred¹⁷ against the presumptive heir rather than from a desire to benefit the devisee. When the facts of unreasonable¹⁸ anger are proved, the will is annulled¹⁹ as unjust, and as not having been freely made. Vide Ab irato.

8. A mystic testament is also called a solemn testament, because it requires more formality than a nuncupative testament; it is a form of making a will, which consists principally in enclosing it in an envelope and sealing it in the presence of witnesses.

9. 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 dispositions²⁰, whether he has written. them himself, or has caused them to be written by another person. The paper containing, 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 notary²¹ and to witnesses, or he shall cause it to be 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. Art. 1577, 5 M. R. 1 82. 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 hindrance²² that has happened since the signing of the testament, 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. Art. 1578. 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. Art. 1579. 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 signed by at least two witnesses. Art. 1580.

10. Nuncupative, testament, a term used in the civil law. A numcupative testament was one made verbally, in the presence of seven witnesses; it was not necessary that it should have been, in writing; the proof of it was by parol evidence.

11. In Louisiana, testaments, whether nuncupative or mystic, must be drawn²³ up in writing, either by the testator himself, or by some other person under his dictation. Civil Code of Lo. art. 1568. The custom of making verbal statements, that is to say, resulting from the mere²⁴ deposition²⁵ of witnesses, who were pregent when the testator made known to them his will, without his having committed it, or caused it to be committed to writing, is abrogated²⁶. Id. art. 1569. Nuncupative testaments may be made by public act, or by act under private signature. Id. art. 1570. See Will, nuncupative.

12. Olographic testament, a term used in the civil law. The olographic tes-tament is that which is written wholly by the testator himself. In order to be valid, it must be entirely²⁷ written, dated, and signed by the hand of the tes-tator. It is subject to no other form. See Civil Code of Lo. art.