TESTAIVIENT. In Civil Law. The appointment of an executor or testamentary heir, according to the formalities prescribed by law. Domat, liv. I, tit. 1, s. 1.
At first there were only two sorts of testaments among the Romans,—that called ealatio comitiis, and another called in proeinetu. (See below.) In the course of time, these two eorts of testament hav ing become obsolete, a third form was introduced, called per me et libram, which was a fictitious sale of the inheritance to the heir apparent. The in conveniences which were experienoed from these fietitione sales again changed the form uf testa ments; and the praetor introduced another, which required the seal of seven witneeses. The emperors having increased the solemnity of these testaments, they were called written or solemn testaments. to gistinguish them from nunoupative testamente, which could he made without writing. Afterwards military testaments were introduced, in favor of eoldiers actually engaged in military service.
A testament calatis comitiis, or made in the comitia,—the,t is, the assembly of the Roman people,—was an ancient manner of making wills need in times of peace among the Romans. The comitia met twice a year for this purpose. Those who wished to make such testatnents caused to be convoked the assembly of the people by these words, calatis comitlis. None could make such wills that were not entitled to be at the assemblies of the people. This form of testament was re pealed by the law of the Twelve Tables.
A civil testament is one made according to all the forms prescribed by law, in contra distinction to a military testament, in making which some of the forms may be dispensed 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.
A comma& testament is one which is made jointly by several persons. Such testaments are forbidden in Louisiana, Civ. Code of La. art. 1565, and by the laws of France, Code Civ. 968, in the same vrords, 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 re ciprocal or mutual disposition." A testament ab irato is one made in a gust of passion or hatred against the pre sumptive heir, rather than from a desire to benefit the devisee. When the facts of un reasonable anger are proved, the will is an nulled as unjust and as not having been freely made. See An IRATO.
A mystic testament (called a solemn testa ment, because it requires more formality than a nuncupative testament) is a form of making a will which consists principally in enclosing it in an envelope and sealing it in the presence of witnesses.
This kind of testament is used in Louisiana.
The following are the provisions of the Civil Code of that state en the subject, namely; the mystic or secret testament, otherwise called the close testa ment, is made in thp following manner : the testa tor must sign his dispositions, whether he has writ ten them himself, or has caused them to be written by another person. The paper containing these dis positions, or the paper serving as their envelope, must be closed and sealed. The teetator ehall pre sent it thus closed and sealed to the notary and to seven mitnesses, or he shall cause it to be closed 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 him self, or by another by his direction, and signed by him, the testator. The notary shall then draw up the act of superscription, whioh shall be written on tbat paper, or on the sheet that serves as its enve lope, and that act shall be signed by the testator and by the notary and the witnesses. 5 Mart. La. 182. All that is above prescribed shall be done without interruption or turning aside to other acte; and in case the testator, by reason of any hindrance that has happened since the signing of the testa, ment, cannot eign the act of superscription, men tion shall he made of the declaration made by him thereof, without its being neeessary.in that ease to increase the number of witnesses. Those who know not how or are not able to write, and those who know not how or are not able sign their names, cannot make dispositions in the form of the mystify will. If any one of the witnesses to the act nf seription knows not bow to sign, express mention 'ball be made thereof. In all °see.; the act must be signed by at least two witnesses. La. Civ. Code, art. 1577-1580.
A nuncupative testament was one made verb ally, 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. See NUNCUPAT1VE.
In Louisiana, testaments, whether nuncupative or mystio, must be drawn up in writing, either by the testator himself, or by some other person under bis dictation. The custom of making verbal state ments, that is to say, resulting from the mere depo sition of witnesses who were present when the testator made known to them his will, without hie having committed it or caused it to be oommitted to writing, is abrogated. Nuncupative testaments may be made by public act, or by act under private signature. La. Civ. Code, art. An olograph,ic testament is one which is written wholly by the testator himself. In order to be valid, it rnust be entirely written, dated, and signed by the hand of the testator. It is subject to no other form. See La. Civ. Code, art. 1581.