WILL or TESTAMENT1. The legal declaration of a man's intentions of what he wills to be performed after his death. Co. Litt. 111; Swinb. Pt. 1, s. II. 1; Shep. Touch. 398; Bac. Abr. Wills, A.
2. The terms will and testament are synonymous, and they are used indifferently by common lawyers, or one for the other. Swinb. p. 1, s. 1. 5; Bac. Ab. Wills. A. Civilians2 use the term testament only. See Testament.
3. There are five essential requisites3 to make a good will.
4. - 1. The testator must be legally capable of making a will. Generally all persons who may make valid4 contracts can dispose of their property by will. See Parties to contracts. This act requires a power of the mind freely to dispose of property. Infants, because of their tender age, and married women, on account of the supposed influence and control of their husbands, have no capacity to make a will, with these exceptions, that infants at common law may dispose of their personal estate, the males when over fourteen years of age, and the females when over twelve; this rule in relation to infants is not uniform in the United States. Swinb. p. 2, s. 2; Bac. Ab. Wills, B. Persons devoid5 of understanding, as idiots and lunatics, cannot make a will.
5. - 2. The testator at the time of making his will must have animum test-andi, or a serious intention to make such will. If a man therefore jestingly or boastingly and not seriously, writes or says that such a person shall have his goods or be his executor, this is no will. Bac. Ab. Wills, C; Com. Dig. Estates by Devise, D 1. See 4 Serg. & Rawle, 545; 2 Yeates, 324; 5 Binn. 490; 1 Des. R. 543.
6. - 3. The mind of the testator in making his will must be free, and not moved by fear, fraud or flattery. In such cases the will is void or at least voidable. Bac. Ab. Wills, C; see 3 Serg. & Rawle, 269. Vide influence.
7. - 4. There must be a person to take, capable of taking; for to render a devise or bequest6 valid there must be a donee in esse, or in rerum natura, and one that shall have capacity to take the thing given, when it is to vest, or the gift shall be void. Plowd. 345. See Legatee.
8. - 5. The will must be put in proper form., Wills are either written or nuncupative.
9. - 1. A will in writing must be, 1. Written on paper or parchment; it may be in any language, and in any character, provided it can be read or understood. 2. It must be signed by the testator or some person authorized7 by him; but a sealing has been held to be a sufficient signing. 2 Str. 764. But see 3 Lev. R. 1; 1 Const. R. 343; 18 Ves. R. 183; 2 Ball & B. 104 5 Mood. R. 484, and article To sign. And it ought to be signed by the attesting9 witnesses. In some states three witnesses are required, who should sign the will as such at the request and in the presence of the testator and of each other. This formality should generally be pursued, as the testator may have lands in such states which would not pass without it. See, as to the attestation10 of wills, Bac. Ab. Wills, D; Rob. on Wills, c. 1, part 15. 3. It must be published, that is, the testator must do some act from which it can be concluded that he intended the instrument to operate as his will. 6 Cruise, 79; 4 Burn's Eccl. Law, 119. As to the republication of wills, see Bac. Abr. Wills, D 3; and article Publication. 4. To make a good will of goods and chattels11 there must be an executor named in it, otherwise it will be a codocil only, and the party is said to die intestate; in such a case administration must be granted. Bac. Abr. Wills, D 2.
10. - 2. A nuncupative will or testament, is a verbal declaration by a tes-tator of his will before a competent number of legal witnesses.
11. Before the statute12 of frauds they were very common, but by that statute, 29 C. H. c. 3, which has been substantially adopted in a number of the states, these wills were laid under many restrictions13. Vide Dane's Ab. chap. 127, a. 2; 3 Harr. & John. 208; 6 Munf. R. 123; 1 Munf. R. 456; 4 Hen. & Munf. 91-100.
12. In New York nuncupative wills have been abolished, except made by a soldier while in actual military service, or by a mariner14 while at sea. 2 New York Revised Statutes15, 60, sec. 22. As to nuncupative wills in Louisiana, see Testament nuncupative; and Civil Code of Louisiana, article 1574.
13. It is a rule that the last will revokes16 all former wills. It follows then that a man cannot by any testamentary act impose upon himself the inability of making another inconsistent with and revoking17 the first will. Bac. Ab. Wills, E; Swinb. pt. 7, s. 14.
14. A will voluntarily and intentionally18 made by a competent testator, according to the form required by law, may be avoided, 1st. By revocation19, see Revocation; Bac. Abr. Wills, G 1; Vin. Abr. Devise, P; 1 Rolle, Ab. 615; Com. Dig. Estates by Dev. F; and, 2d. By fraud.
15. Among the civilians they have two other kinds of wills, namely: the mystic, which is a will enveloped20 in a paper and sealed, and the witnesses attest8 that fact, the other is the olographic; which is wholly written by the testator himself. See Testament. As to wills and testaments21, see Swinburne on Wills; Roberts on Wills; Lovelass on Wills; Roper on Legacies22; Lowndes on Legacies; Will. on Ex. pt. 1; Vin. Abr. Devise; Rolle's Abr. Devise; Bac. Abr. Wills and Testaments; Com. Dig. Estates by Devise; Nels. Abr. h. t.; Amer. Dig. Wills; Whart. Dig. Wills; Toll23. on Executors; Off. Ex.; Orph. Legacy24; Touchst, ch. 23 Civil Code of Louisiana, B. 3, tit. 2; Bouv. Inst. Index, h. t.; and the articles Devise; Legacy; Testament.
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