WILFULLY. Intentionally.
In charging certain offences, it is reguired that they should be atated to be wilfully done. Archbold, Crim. Plead. 51, 58 ; Leach, Cr. Cas. 556.
In Pennsylvania, it has been decided that the word maliciously was an equivalent for the word wilfully, in an indictment for arson. 5 Whart. Penn. 427.
WILL (last will and testament). The disposition of one's property, to take effect after death. Swinburne, Wills, pt. 1, t 2 ; Godolphin, pt. 1, c. 1, s. 2.
The term will, as an expression of the final dis position of one's property, is confined to the Eng lish law and those eountries which derive their jurisprudence from that source. The term testa mentum, or teetament, is exclusively used in the Roman civil law and by the oontinental writers upon that subject. Some controversy seems to exist whether the word teetamentum is strictly de rived from teetatum or from that in combination with mentie. There does not seem to be much point in this controversy, for in either view the result is the same. It is the final declaration of the person in regard to the disposition of his pro perty. It is his teetimony upon that subject, and that is the expression of his mind and wi/l in rela tion to it.
The practice of allowing the owner of property to direot its destination after his death is of very ancient date, coeval with civilization itself, so far as we know. Genesis, xlviii. 22; Gal. iii. 15; Plutarch's Life of Solon ; Roman Laws of the Twelve Tables.
In some countries the right of disposing of pro perty by will did not, indeed, exist in early times : as, among tbe ancient Germans, and with the Spartans under the laws of Lyeurgus, and the Athenians before the time of Solon. 4 Kent, Comm. 502, and note. But, with rare exceptions, it has existed aemper ubique in omnibus.
And in England, until comparatively a recent period, this right was to he exercised under con siderable restriotions, even as to personal estate. 2 Blackstone, Comm. 492, 493.
Until the statute of 32 it 34 Henry VIII., ealled the Statute of Wills, the wife and children were each entitled to claim of the executor their reason able portion of the testator's goods, i.e. each one third part. So that if one had both a wife and ehildren, he eonld only dispose of one-third of his personal estate, and if he had either a wife or child, but not both, he could dispose of one-half. Fitz barbed, Nat. Brev. 122 (h), 9th ed.; 2 Saund. 66, n. (9); 2 Sharswood, Blackat. Comm. 492. All restrictions are now removed from the disposition of property by will, in England, whether real or personal, by the statute of 1 Viet. c. 26. And in the Homan civil law the children were always en titled to their share, or legitime, being one-foutth part of the estate, of which they could not be de prived by the will of their father. The legitime
was by the emperor Justinian increased to one• third part of the estate where there were four or a loss number of ehildren, and if more than four then they might claim one-half the estate, notwith standing the will. Novell.18, e. 1 ; 2 Domat, Civil Law, 15.
And by the existing law of the state of Louisi ana, one is restrained of disposing of his whole estate if he have children. One child may claim one-third of the estate, two may claim half, and three two-thirds, as their legitime, or reasonable part of the estate. See Louisiana Code.
According to the civil law, the naming of an executor was of the essence of a will; and that constituted the essential difference between a will and a codicil; the latter, not making any such ap pointment, was, on that aocount, called an inoffici ous testament, or will. Swinhurne, Wills, pt. 1, 0 5, pl. 2. 3; 1 Williams, Exec. 7.
2. Willa are unwritten or nuncupative, and written. The former are called nuncu pative from nuncupare, to name, declare, or make a solemn declaration, because this class of wills were required to be made in solemn form before witnesses, and by the appoint ment or naming of an executor. Swinburne, Wills, pt. 1, t 12, pl. 1 ; Godolphin, pt. 1, c. 4, t 6.
This class of wills is liable to much tempta tion to fraud and perjury. The statute of 29 Charles II. c. 3, laid them under several re atrictions ; and that of 1 Vict. c. 26, rendered them altogether invalid except aa to " any soldier in actual military service, or any mariner or seaman, being at sea," who may dispoae of personal estate the same as before the act.
By the insertion of the clause " in actual military service," it has been held to include only such as were on an expedition, and not to include those quartered in barracks, either at home or in the colonies. 3 Curt. 522, 818. But see, also, 2 Curt. 368, 341.
So the exception does not extend to the commander-in-chief of the naval force in Jamaica, who lived on shore at the official resi dence with his family. The Earl of Easton v. Seymour, cited by the court in 2 Curt. Eccl. 339 ; 3 id. 530. The statutes of most of the American states have either placed nun cupative wills under special restrictions, or else reduced them within the same narrow limits as the English statutes. In many of the states they still exist much as they did in England before the statute of 1 Viet. c. 26, being limited to a small amount of personal estate. 1 Jarman, Willa, Perkina ed. 136, and note.
Written Wills.