WILL. The disposition of one's property, to take effect after death. Swinb. Wills pt. 1, § 2; Godolphin pt. 1, c. 1, s. 2.
The term will, as an expression of the final dispo sition of one's property, is confined to the English laws and those countries which derive their juris prudence from that source. The term testamentum, or testament, is exclusively used in the Roman civil law and by the continental writers upon that sub ject. Some controversy seems to exist whether the word testamentum is strictly derived from testatum or from that in combination with men,tis. 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 dis position of his property. It is his testimony upon that subject, and that is the expression of his mind and will in relation to it.
The practice of allowing the owner of property to direct its destination after his death is of very ancient date. Genesis, xlviii. 22 ; Gal. iii. 15 ; Plu tarch's Life of Solon ; Roman Laws of the Twelve Tables. But wills are not like succession, a law of nature. A stage where they are not recognized al ways, in every society, precedes the time when they are allowed. In their early growth they were not regarded as a method of distributing a dead man's goods, but as a means of transferring the power and authority of a family to a new chief. It is not until the latter portion of the middle ages that they become a mode of diverting property from the fami ly or of distributing it according to the fancy of the owner. Maine, Anc. Law 171-217. Nor is the power to dispose of property by will a constitutional right. It depends almost wholly upon statute ; Brettun v. Fox, 100 Mass. 234. See TAX.
"The right to take property by devise or descent Is the creature of the law and not a natural right ;" Magoun v. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037 ; U. S. v. Perkins, 163 U. S. 625, 16 Sup. Ct. 1073, 41 L. Ed. 287; Eyre v. Jacob, 14 Gratt. (Va.) 422, 73 Am. Dec. 367 ; Pullen v. Wake County Com'rs, 66 N. C. 361; this statement ie combated vigorously and the position maintained that it is a natural right in Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. (N. S.) 121, 9 Ann. Cas. 711, where a note collects the cases, finding no case agreeing with the one annotated.
The right of disposing of property by will did not exist in early times among the ancient Germans, or with the Spartans under the laws of Lycurgus, or the Athenians before the time of Solon. 4 Kent
602, and note. And in England, until comparatively a recent period, this right was to be exercised under considerable restrictions, even as to personal estate. 2 Bla. Com. 492.
"The will or testament of modern law, with its specific characters of being secret, revocable and posthumous in operation, is unknown to archaic law, and is of comparatively recent introduction wherever we find it." Pollock's Notes on Maine's Ancient Law. The power to devise land did not exist at common law but is governed by statute ; Gibson v. Van Syckle, 47 Mich. 439, 11 N. W. 261. Until the statute of 22 & 34 Henry VIII., called the statute of wills, the wife and children were each entitled to claim of the executor their reasonable portion of the testator's goods, 4. e. each one-third part. So that if one had both a wife and children, he could 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 ; Fitzh. N. B. 122 H (b),. 9th ed. ; 2 Saund. 66, n. (9) ; 2 Bla. Com. 492. All restrictions are now removed from the disposi tion of property by will, in England, whether real or personal, by the statute of 1 Vict. c. 26 ; 3 Jarm. Wills (Randolph & Talcott's ed.) 731. As to the his tory of wills in England, see Bigelow, 3 Sel. Essays, L. H. 770 (11 Harv. L. Rev. 69). And In the Roman civil law the children were always entitled to their share, or legitime, being one-fourth part of the estate, of which they could not he 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 less number of children, and if more than four then they might claim one-half the estate, notwithstanding the will. Novell. 18, c. 1; 2 Domat, Civil Law 15. See LEGITIME.
According to the civil law the naming of an ex ecutor was of the essence of a will ; and that con stituted the essential difference between a will and a codicil ; the latter, not making any such appoint ment (absque executoris constitutions), was, on that account, called an unsolemn last will. Swinb. Wills 29. The executor under a Roman will succeeded to the entire legal position of the deceased. He con tinued the legal personality of the testator, taking all the property as his own, and becoming liable for all the obligations. Maine, Anc. Law 126.