From the said Definition of a Testament , the Legal Inferences are six , viz. 1. That a Testator in his Will may not command Six Inferences from the definition of a Testament . or order any thing against Justice , Piety , Equity or Honesty . 2. That it be full and perfect without defect or imperfections , either in respect of Solemnity , or in respect of Will and meaning . 3. That it ought to be advisedly and deliberately made , and not absque animo Testandi . 4. That the Testator ought to be sui juris , in respect of what he disposeth in his Will. 5. That his Will be independent , not suffering the least coaction or dependence on the will or pleasure of any other . 6. That the Testament receives life by the Testators death , and is of no force till his decease .

A Testament is frequently called a Will or Last Will ; for these Such a Testament as whereto the appointment of an Executor is essential , doth properly refer to Goods and Chattels ; for Lands by vertue of the Statute may be devised by a Will in writing where no Executor is named . words are commonly Synonymous and promiscuously used : yet some are of Opinion , that they understand it most properly , who limit a Will only to Land , and a Testament only to Chattels requiring Executors , which a Will only for Land doth not require : For it seems that by the Common Law where Lands or Tenements are only devised by writing , albeit there be no Executor named , yet that is properly called a Last Will ; and where it concerns only Chattels , a Testament . f f Sheph. Epit. cap. 155. The truth is , a Testament taken strictly according to the said definition differeth from a Last Will , g g D. D. post glos . in dict. l. 1. ff. de testa . yet not as opposite thereto , but only as the Special differeth from the General ; for every Testament is a Last Will , but every Last Will is not a Testament . In a word , a Last Will is a general word , and agrees with each several kind of Last Wills or Testaments . h h Mantic. ubi sup. tit. 5. But a Testament properly so called , is only that kind of Last Will wherein an Executor is named or appointed .

Plowden in his Commentaries doth define a Testament to be the Witness of the mind , and to be compounded of these two words , viz. Testatio and Mentis : But this is no adequate definition of a Testament ; neither is it a compound word , i i Aul. Gel. lib. 6 , c. ●2 . to Serv. Sulp. but a single word , such as is Calceamentum , Paludamentum , and the like . And if it be demanded whether a Testament may be good in Law without a Seal , it is Answered in the Affirmative ; for a Seal is Sealing not absolutely necessary to a Will . not absolutely necessary to a Testament , though it may be fit and expedient . k k Offic. ex cap. 2. For a Will not being properly and legally a Deed , may be good enough without a Seal , which is one essential part of a Deed ; yet hath a Will the force and effect of a Deed. l l Ibid.

A Testament is either Solemn a a L. hac consult . C. de Testa . or Vnsolemn . b b l. 1. ff. de iniust . rupt . & irrit . testa . This though the first and greatest distinction of Testaments , yet of least force or use with us now in England . 2. Testaments are either written or Nuncupative . c c Myns . Inst. de testa . ordin . §. fin . 3. They are either priviledged or unpriviledged . d d Mant. ubi sup. l. 1. tit. 57. Of Priviledged Testaments there are three sorts , whereof some are called Militarie Testaments ; others are called Testaments only among the Testators own Children ; and others are Testaments to Charitable and Pious uses . But if no Executor be named or appointed , then it hath not the name of a Testament , yet it shall retain the name of a Last Will , and comprehends one of these three , viz. either a Codicil , or a Legacy and Devise , or a Gift in regard or by reason of death .

§ . 1. A Written Testament is such as at the time of making thereof is committed to writing . a a Myns . Inst. de testa . ord. §. Sed cum paulat . By which words are excluded such Testaments as are afterwards put into writing . For being first made by word of mouth they still remain Nuncupative , notwithstanding the reducing thereof into writing after the Testators death . b b Myns . ibid. §. fin . Among other advantages that a Testator hath by a written Will this is one ; that he may conceal the Contents thereof from the Witnesses , c c L. hac consult . Cod. de Testa . & glos . ibid. which in a Nuncupative Will he cannot do . And it is sufficient , if taking his Will in his hand he say unto the Witnesses , This is my Last Will and Testament , or herein is contained my Last Will ; or other words to the like effect . d d Auth. & non observato . Cod. de Testa . & DD. ibid.

2. As touching the disposition of Land of Inheritance by Will , if it be not fully written before the Testators death , so far at least as concerns the disposition of the said Land , it may not be for that part made good by reducing it to writing after the Testators death ; but as touching Goods and Chattels it may . e e Offic. Exec. cap. 2. Nevertheless if it be written before the Testators death , though it be never brought nor read to him after the writing thereof , yet is it good enough , and that not only for Land , but also for Goods and Chattels , provided that there be an Executor named . f f 6 H. 6. Dyer . 32. And this shall be a Will in writing and not verbal only , yea though it want the subscription of the Testators Name . g g Offic. Exec. ubi supra . For many cannot write at all , and some want hands : Nor is the subscribing the name of the Maker any essential part of a Deed , much less of a Will , which needs not sealing as a Deed doth .

3. Lands and Tenements deviseable by Custome may pass by a Nuncupative Will for any time whatsoever ; for in a Devise of Lands , Tenements and Hereditaments held in Burgage-tenure , it is not necessary that the same should be written , because such may pass sufficiently by Will Nuncupative , h h Swinb . part . 1. §. 11. n. 5. because such Lands were deviseable before the making of the Statute of H. 8. enabling to devise Lands , Tenements and Hereditaments by Will in writing in the Testators life-time , which cannot pass by a Nuncupative Testament or Will without writing : i i Stat. H. 8. an. 32. c. 1. So that Lands of Burgage-tenure , and by Custome deviseable may pass Nuncupatively , though Lands of other tenures are not deviseable but by Will in writing .

4. Though the naming or appointing of an Executor be essential to constitute a Testament or Last Will , yet this properly refers only as to Goods and Chattels ; for a man may by his Last Will in writing devise his Lands , Tenements and Hereditaments , though he make no Executors , because an Executor hath nothing to do with the freehold of Land .

5. If the Writer doth only take Notes from the mouth of the Testator of his Last Will , for the devise of Lands , Tenements and Hereditaments , and afterwards write the same , but the Testator dies before it be shewed unto him ; yet this is sufficient for a Will in writing for the coveying of Lands , Tenements and Hereditaments . k k Dyer i● Ca 〈…〉 inter Sack vile & Browne . Likewise it is sufficient if Notes or Articles be made and read to the Testator ; though the same be not ingrossed at large or in form of Law until after the Testators death . l l Ibid. sup. ult vol. cujusdam Hanton .

6. Testaments are called Nuncupative , when the Testator without any writing doth declare his Will before a sufficient number of Witnesses ; m m Inst. de test . ordinan . §. fin . & l. heredes . ff. de testa . and such Nuncupative Will is of as great force and efficacy ( except for Lands , Tenements and Hereditaments ) as any written Testament . n n l. hac Consultat . §. per nuncupat . C. de testa . Yea this verbal , oral , or Nuncupative Will , being after the Testators death reduced to writing , and having the Court Seal affixed thereunto , is of as good validity touching the disposal of Goods and Chattels , as if it had been written in the Testators life-time . o o Stat. 14 H. 6. 5. & 5 H. 5. & 〈◊〉 M. 15. & ●6 Eliz.

7. Although many Legacies be made and written in a Will , and many things expressed to be done , yet if no Executor be named in the writing , only A. and B. by word of mouth appointed to be Executors ; this shall not amount to a Will in writing , but to a Nuncupative will only ; p p Offic. Exec , ubi sup. because one essential part of the Will , ( viz. the appointing of an Executor ) is omitted out of the writing . Nay , the appointing of him Executor , who is named in such a Note left with C. D. is no sufficient making of an Executor at all . q q Sum. Silv. tit . de testa . fol. 443. 6. Nor is the appointing of any one by a doubtfull and uncertain Name a sufficient making either of an Executor or Legatary , r r Inst. de Legatis . §. incertis . unless some other sufficient circumstance doth make it plainly appear whom the Testator meant ; so tender and cautious is the Law of fixing the interest of any upon meer doubts and uncertainties .

8. A man took Notes of a Will of one who lay sick , and afterwards he drew up the Will in writing , but the sick person dyed before it was shewed to him . Yet it was the opinion of the whole Court , that the same was a good Will within the Statute of 32 H. 8. to convey Socage Land . Trin. 6 E. 6. Dyer , 72. So was it adjudged in 4 and 5 Eliz. in Hinton's Case , where Articles were read to the Devisor concerning the disposition of his Lands , and the Articles were written and engrossed after his death ; and yet it Hugh . Abridg. verb. Wills and Testaments . was a good Will within the said Statute of 32 H. 8.

A man intended Land to J. S. for life , the remainder to J. D. and before the remainder was written the Devisor dyed . It was the opinion of the Court , that the same was a void Devise for the whole Lands within the Statute of 32 H. 8. because that the one did depend upon the other : But in that case it was holden , that if a man seised of two Acres , intends one of them to J. S. and the other to J. D. and the Devise to one is written , but the Devisor Trin. 11 Jac. in C. B. Caesar and Lakes Case . Adjudged acc . Hugh . Abridg. Ibid. dyeth before the Devise of the other Acre to the other is written ; It is a good Devise for the Acre which is written , but not for the other Acre .

B. Brought Writ of Entry in nature of an Assize against his Fathers Wife . The Case upon Evidence was this , viz. H. B. the Brown and Browns Case . Mich. 4 & 5 P. & M. Anders . Rep. Cas. 85. Plaintiffs Father , and Husband of the said Wife , being sick at London sends for A. desiring him to write the Last Will and Testament of his Lands . A. desires B. to declare what he would have his Last Will and Testament to be , and who to be his Executors , whereupon A. wrote short Notes of his Last Will , and every Legacy , and who should be his Executors , then return'd to his own House , there wrote the said Will in Order and Form , and therewith returning to the House of H. B. within half an hour after 12 , intending to have read the same unto him , was then told that the said H. B. dyed at twelve of the clock just before . Whereupon A. delivered the same to the Executors that were therein named . The Wife enters on the Testators Tenements , and what was Devised to her , the Son enters upon her , the Wife re-enters , whereupon the Plaintiff brought his Writ . The Opinion of all the Justices was , That it was a good Will in writing , according to the Stat. of 32 H. 8. and declared their Opinion on the Evidence given ; whereupon it passed for the Wife , and she enjoy'd the Land .

§ . 1. TEstaments Priviledged are such as are qualified by some special freedome or benefit contrary to the common course of Law , a a Mant. ubi sup. lib. 1. tit. 57. in sin . or by some special freedome are discharged from the usual Requisites and Observations of Common and General Law ; whereof there are ( as in the second Chapter ) chiefly these three kinds , viz. 1. Military Testaments . 2. Testaments made in favour of the Testators Children . 3. Testaments for good and pious uses .

2. The priviledges of Military Testaments , or of a Testament made by a Souldier are many , but chiefly these Four ; viz. 1. A Souldier is not disabled from making his Testament by any of those impediments which disable others , unless for want of Reason , or other like grand causes whereby he is disabled Jure Gentium . b b Myns . de Milit Test . in pr. 2. Whereas divers persons are prohibited from being Executors or Legataries to other persons , yet the Law doth not so prohibite them from being Executors or Legataries to a Souldier , save in some very few Cases specially limited in the Law . c c Bart. in dict. tit. 3. Souldiers are clearly acquitted from the observation of the Solemnities of the Civil Law in making of Testaments . d d l. Divus . ff. de mil test . §. plane . Inst. eod. 4. Whereas no other person can dye with two valid Testaments , yet a Souldier may , and both Testaments shall stand good according to the intent or meaning of the Testator . e e l. querebatur . ff. eod. Other priviledges there are peculiar to Souldiers in making their Testaments , but they being many , f f Vasq. de succes . resol . lib 2. §. 20. ubi enumerat 70 Privilegia militibus indulta . it would not answer the design of a Compendium to make a specification thereof . Only let it not here escape our Observation , that these Priviledges belong only to such Souldiers as are in expedition or actual Service of war , g g l. pen. C. de test . mil. & Mant. ubi sup. l. 6. tit. 1. nu. 32. §. sed hactenus . Inst. de mil. test . & Gail . Obs. 118. and not to such as lye safely and securely in some Castle , Garrison , or other like place of defence . h h Myns . §. illis autem . Inst. de mil. test . & Jul. clar . §. testam . q. 15. in fin .

3. The priviledges of Testaments made in favour of the Testators Children , are chiefly these three , viz. 1. If two Testaments be found after the Testators death of divers tenures , and it appear not which of them is the latter Testament ; In this Case that shall be presumed the latter , and so prevail , which is made in favour of the Testators Children . i i Bart. in l. 1. §. 1. de bon. poss. secund. Tab. ff. Clar. §. testa . q. 100. 2. The Testament made in favour of the Testators Children , is not so easily revoked as possibly other Testaments may be . k k Auth. hoc in t . Liberos , eod. de Testa . & Glos . ibid. 3. A Fathers Testament among his Children shall take effect , though there be no Witnesses to prove the same , being written or subscribed by the Testators hand , or by him procured to be written by some other . l l Bald. Paul . de Castro . & Jas . in Auth. Quod sine C. de Testa . Howbeit these two last Priviledges by the Custome of England , the latter of them especially , are common to all English mens Testaments ; so also are all other priviledges which the Law doth indulge to such Testaments inter Liberos .

4. The Priviledges of Testaments made for good and pious uses ( being such as are made to Orphans , Widows , Strangers , Prisoners , Lame and Diseased persons being poor and indigent , to Hospitals , Schooles , Colledges , also for the redemption of Captives , repairing of City-Walls , Bridges , and such like ) are chiefly these four ; viz. 1. This kind of Testaments may be written with strange and unaccustomed Characters , yet shall be good and effectual . m m Mant. ubi sup. l. 6. tit. 3. n. 3. & Tyraq. de Privil . piae Caus . c. 12. 2. If the Testament ad pios usus be found Cancelled , and it be not known whether the Testator did willingly cancel the same , the Law presumes it to be unadvisedly cancelled , whereas in other Testaments the contrary is presumed ; but in this kind of Testaments ad pios usus , if it be not certainly known that the Testator did wittingly cancel the same , it shall be in effect as if it had not been cancelled at all . n n Co●ar . in Rub. de test . part. 3. nu. 19. & Mant. ubi sup. l. 12. tit. 2. n. 32. 3. In this kind of Testaments it is sufficient that the condition ( if any be ) be observed and accomplished by other means than according to the precise form of the condition . o o Tyraq. ubi sup. Whereas in other Testaments or Legacies , it is not sufficient unless the condition be precisely observed . p p l. Maevius . & l. qui haered . ff. de Cond . & dem . 4. The Testament ad pios usus is not void in respect of uncertainty , as other Testaments are . q q Bart. & Jason . in l. 1. C. de Sacros . Eccl. & Gras . Thes. Com. Opin §. Instit. q. 12. And generally most Priviledges that do belong to other priviledged Testaments , do belong also unto this Testament ad pios usus .

5. Testaments Vnpriviledged are such as have not any benefit or freedom above , or contrary to the common course of ordinary Law , but are generally obliged to the observation of such Requisites as the Law regularly appoints for all Testaments .

1. A Codicil in the Etymologie thereof , doth signifie a little Book , Codicillus being but the diminitive of Codex : you may if you please call a Testament a great Book , and a Codicil a little Book or writing . The Original of these Codicils was meerly occasional ; for when by reason of the multiplicity of legal Solemnities requisite to a Testament , which are not so to a Codicil , the Testator failing of sufficient opportunity to make a Testament Solemn , was enforced to fly to the refuge of a Codicil for declaration of his Will to be performed post mortem : Or otherwise as additional to the Testament , touching something therein omitted ; or explanatory to it , touching something therein ambiguous ; or derogatory to it , touching something therefrom to be detracted .

2. Every man that writes of this Subject abounds in his own sence touching the definition of a Codicil ; but he will be found least in errour who defines a Codicil to be the just Sentence of our Will , touching that which we would have done after our death , without the appointing of an Executor . a a Mantic. l. 1. tit. 8. Yet here observe , that the word [ Just ] is not so comprehensive in this case as in the definition of a Testament ; for here it doth not signifie those Solemnities and ritual Formalities which are Testamentary , but only an exclusion of illegalities , and inclusion of such perfections as are consistent with the nature of a Codicil ; so that we may not improperly infer , That a Codicil is a kind of an unsolemn Last Will . b b Gras . Thes. Com. Op. §. Codicil . in prin.

3. A Codicil may in effect be made either in writing or without it , c c Gloss. in Rub. c. de Codicil . & Minsing . in dict. Rub. Instit. & Wesemb . in ff. de jure Codicill . provided you do not call it a Nuncupative Codicil , that being an abuse of words ; for if a Codicil may , as aforesaid , be called a Little Book or Writing , it is improper to call it Nuncupative ; therefore although all the power and force of a Codicil may be made without writing , yet being so made it may not otherwise than improperly and abusivè be termed a Codicil , but rather something Loco Codicilli , and which hath the full force and effect of a Codicil . Also a Codicil may be made as well by him who dieth Intestate as by him who dieth Testate . d d l. conficiuntur in prin. ff. de jure Cod. & §. non aute n. Inst. de Codicil . Neither is it material whether it be made before or after the Testament ; e e l. confic . ibid. for in both cases it shall be reputed as part and parcel of the Testament , f f Vigel . meth. jur . Civil . part. 4. l. 9. c. 23. and to have equal force with it ; unless being made before the Testament it be revoked in the Testament , or be contrary to what is contained therein . g g Mynsing . post gloss . in §. non tantum . Inst. de Codicil .

4. Persons capable or incapable of making Testaments are even such also as to Codicils h h Bart. & alii in l. 2. de Legib. 1. & Gras . Thes. Com. Op. §. Cod. nu. 2. Yet a man may die with divers Codicils , and the latter shall not ( as in divers Testaments ) null the former , so as the one be not contrary to the other . i i l. cum proponat . Cod. de Codicil . And if in such Codicils ( it not appearing which was first or last ) one and the same thing be given to one person in the one , and to another person in the other , the Codicils are not void , but the persons therein named ought to divide the thing equally betwixt them . k k Glos . & DD. in dict. l. cum proponat . & Gras . Thes. Com. Op. §. Codic .

1. AN Infant-Male at the Age of fourteen years , and Female at the Age of twelve years , may make a Testament touching Goods and Chattels ; a a l. qua aetate . ff. qui Testa . fac . possint . & §. preteria . & Inst. quib . non est permiss . & l. si frater . C. qui testa fac . poss. & Cowel . Inst. lib. 2. tit. 12. although both Sexes in construction of Law are Minors or Infants untill the Age of twenty one years , b b Dr. & Stud. l. 1. c. 21. & lib. 12. c. 28. till which Age neither of them can make any Conveyance of Land good in Law . c c Stat. 34 H. 8. c. 5. And before the said respective Ages of twelve and fourteen years neither of them can make any Testament at all , no , though it be ad pios usus : d d Jas . in dict. l. si frater . But at the accomplishment of the said respective Ages each of them may , even without the consent of his or her Guardian e e Jas . ibid. or Parent , if they have any Goods in their own right , make a Testament thereof , f f Perk. tit . devise . fol. 97. though not of Lands of Inheritance , g g Stat. 34 H. 8. c. 5. unless the Custome of the place doth enable them for it . h h Perk. ib. fol. 504. But before the said respective Ages neither of their Testaments is good , though made by the approbation and with the consent of their Guardians ; i i Jas . ubi supra . yea , though they afterwards attain to the said Ages , and then neglect to ratifie them : k k l. preteria . Inst. quib . non est permis . fa. test . But if he or she hath attained to the last day of the said Ages of twelve or fourteen years , the Testament so made by him in the very last day of the Age of fourteen years , or by her in the very last day of the Age of twelve years is as good and lawful , as if the said day were then already expired ; l l dict. l. qua aetate . & ibi Bart. or if after the accomplishment of the said Ages respectively , he or she doth expresly approve and ratifie the Testament made during their minority , then is the same made good and effectual by this new declaration thereof . m m Paul . de Cast. & alii in l. si frater . C. qui testa . fac . poss.

2. Such as are Mad persons can make no Testament during the time of their insanity of mind , n n l. furiosum . C. qui testa . fac . poss. no , not so much as ad pios usus . o o Bart. in l. 1. C. de Sacros . Eccl. n. 16. Nay , the Testament made at such a time shall not be good , though afterward the party recover his former understanding ; p p dict. l. furiosum . howbeit if such Lunatick persons have any Lucida intervalla , or intermissions , then during the time of such freedome from the Lunacy they may make their Testaments betwixt the fits . q q Ibid. & dict. §. preteria . & DD. ibid. And here Note , that every person is presumed to be of perfect mind and memory until the contrary be proved . r r Bart. in l. nec Codicillos Cod. de Codicillis . So that he that objecteth Insanity of mind must prove the same ; s s Bart. ibid. for which it is sufficient if he prove , that the Testator was beside himself , or had lost his Reason but just before he made his Testament , though he prove not the Testators madness at the very time of making the same , t t Glos . in c. fin . de Succes . ab Intestat . unless the contrary be proved , or circumstances to induce a contrary presumption . u u Mantic. ubi supra . lib. 2. tit. 5. For it is a very tender and difficult point to prove a man not to have the use of his Reason and Understanding ; therefore it is not sufficient for the Witnesses to depose that the person was mad , unless withall they render upon knowledge a sufficient reason thereof . w w Bald. in dict. l. furiosum . & Maschard . de probat . ver. furiosus . Neither is one Witness sufficient to prove a man mad , x x Masch . ibid. & Cons. 127. n. 9. nor two , in case the one depose of the Testators madness at one time , and the other of his madness at another time ; y y Ibid. but both agreeing in time , if then the one Witness deposeth of one mad act , the other of another mad act at one and the same time , these sufficiently prove that the Testator was then mad , though they do not both depose of one and the same mad act . z z Masch . post Ruin . ubi supra . But in contrary depositions these Witnesses are to be preferred , which depose that the Testator was sound of memory . a a Gabriel . l. 1. Com. Const. tit. de Test . Con. 4. nu. 19. And if he used to have some intervals of Reason , and it be not certainly known whether the Testament were made in or out of his fits of Lunacy ; in this case , if no argument of frenzie or folly can be collected by the Testament , it shall be presumed to be made during the intermissions of the Lunacy , and so adjudged to be good ; b b Gras . Thes. Com. Opin . verb. Testa . q. 21. & Vasq . de Success . l. 1. §. 2. nu. 20. yea , though it cannot be proved that the Testator used to have any clear and calm intermissions at all , provided the same Testament be wisely and orderly made , c c Gras . 25. n. 4. & Boer . q. 23. n. 88. & Ludo. Decis . 1. nu. 13. otherwise not . d d Bald. & . Angel . in dict. L. furiosum . For in this case , the least word sounding to folly is sufficient to induce a presumption that the Lunatick person had no intermission of perfect Reason and sound Memory at the making of such Testament ; for one foolish word in that case may frustrate the validity of the whole . e e Angel . ibid. But if a man who is of good and perfect Memory , maketh his Will , and afterwards by the visitation of God , he becomes of unsound Memory ( as every man for the most part before his death is ) this Act of God shall not be a Revocation of his Will , which he made when he was of good and perfect memory . Cook . 4. part 124. Beverlyes Case .