Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/606

Rh 570 W I L W I L those that arc younger, or with far higher attainments and powers, may not in future be required, in the advance and spread of our knowledge, to refer at once to the locali ties of Scripture events, when the great work is to be essayed of representing Scripture history,&quot; a sentence which foreshadows the new direction and aims of Mr Hoi- man Hunt and other modern realists. Passing through Holland and Germany, he reached Constantinople, where, while detained by the war in Syria, he painted a portrait of the young sultan. He then sailed for Smyrna and travelled to Jerusalem, where he remained for some five busy weeks. The last work of all upon which he was en gaged was a portrait of Mehemet Ali, done at Alexandria. On his return voyage he suffered from an attack of illness at Malta, and died at sea off Gibraltar on the morning of 1st June 1841. His body was consigned to the deep in the Bay of Gibraltar. An elaborate Life of Sir David Wilkie, by Allan Cunningham, containing the painter s journals and his observant and well-con sidered &quot;Critical Remarks on Works of Art,&quot; was published in 1843. Redgrave s Century of Painters of the English School and John Burnet s Practical Essays on the Fine Arts may also be referred to for a critical estimate of his works. A list of the exceptionally numerous and excellent engravings from his pictures will be found in the Art Union Journal for January 1840. Apart from his skill as a painter Wilkie was an admirable etcher. The best of his plates, such as the Gentleman at his Desk (Laing, VII.), the 1 ope examining a Censer (Laing, VIII.), and the Seat of Hands (Laing, IV.), are worthy to rank with the work of the greatest figure- etchers. During his lifetime he issued a portfolio of seven plates, and in 1875 Dr David Laing catalogued and published the complete series of his etchings and dry-points, supplying the place of a few copper-plates that had been lost by reproductions, in his Etchings of David Wilkie and Andrew Geddes. (J. M. G. ) WILL, or TESTAMENT, is an instrument by which a per son regulates the rights of others over his property or family after his death. For the devolution of property not disposed of by will, see INHERITANCE, INTESTACY. In strictness &quot; will &quot; is a general term, whilst &quot; testament &quot; applies only to dispositions of personalty ; but this dis tinction is seldom observed. The conception of freedom of disposition by will, familiar as it is in modern England, is by no means universal. In fact, complete freedom is the exception rather than the rule. Legal systems which are based upon Roman law, such as those of Scotland and France, allow the whole property to be alienated only where the deceased leaves no widow or near relatives. In France this restriction has met with condemnation from eminent legal and economical authorities. M. Troplong, for instance, holds that &quot;un peuple n est pas libre, s il n a pas le droit de tester, et la liberte du testament est la plus grande preuve de la liberte civile.&quot; x History. The will, if not purely Roman in origin, at least owes to Roman law its complete development, a development which in most European countries was greatly aided at a later period by ecclesiastics versed in Roman law. In India, according to the better opinion, it was unknown before the English conquest ; in the Mosaic law and in ancient Athens the will, if it existed at all, was of a very rudimentary character. The same is the case with the Leges Barbarorum, where they are unaffected by Roman law. The will is, on the other hand, recog nized by Rabbinical and Mohammedan law. The early Roman will, as Sir H. Maine shows, 2 differed from the modern will in most important respects. It was at first effectual during the lifetime of the person who made it ; it was made in public and it was irrevocable. Its original object, like that of adoption, was to secure the perpetua tion of the family. This was done by securing the due vesting of the hereditas in a person who could be relied upon to keep up the family rites. There is much prob- 2 Ancient Law, chap. vi. ability in the conjecture that a will was only allowed to be made when the testator had no gentiles discoverable, or when the gentiles had waived their rights. It is certain from the text of Gains 3 that the earliest forms of will were those made in the comitia calata, and those made in procinctu, or on the eve of battle. The former were pub lished before the comitia, as representative of the patrician gentes, and were originally a legislative act. These wills were the peculiar privilege of patricians. At a later time grew up a form of plebeian will (testamentum per tes et libram), and the law of succession under testament was further modified by the influence of the praetor, especially in the direction of recognition of fideicommissa (see TRUST). Codicilli, or informal wills, also came into use, and were sufficient for almost every purpose but the appointment of an heir. In the time of Justinian a will founded partly on the jus civile, partly on the edict of the pra3tor, partly on imperial constitutions and so called testamentum tripar- titum, was generally in use. The main points essential to its validity were that the testator should possess testa mentary capacity, and that the will should be signed or acknowledged by the testator in the presence of seven witnesses, or published orally in open court. The wit nesses must be idonei, or free from legal disability. For instance, women and slaves were not good witnesses. The whole property of the testator could not be alienated. The rights of heirs and descendants were protected by enact ments which secured to them a legal minimum. The age at which testamentary capacity began was fourteen in the case of males, twelve in the case of females. Up to 439 A.D. a will must have been in Latin ; after that date Greek was allowed. Certain persons, especially soldiers, were privileged from observing the ordinary forms. The liability of the heir to the debts of the testator varied at different periods. At first it was practically unlimited. Then the law was gradually modified in his favour, until in the time of Justinian the heir who duly made an in ventory of the property of the deceased was liable only to the amount of the property to which he had succeeded. This limitation of liability is generally termed by the civilians beneficium inventarii. Closely connected with the will was the donatio mortis caiisa, the rules of which have been as a whole adopted in England (see below). An immense space in the Corpus Juris is occupied with testamentary law. The whole of part v. of the Digest (books xxviii.-xxxvi.) deals with the subject, and so do a large number of constitutions in the Code and Novels.* The effect of Christianity upon the will was very marked. For instance, the duty of bequeathing to the church was inculcated as early as Constantine, and heretics and monks were placed under a disability to make a will or take gifts left by will. A will was often deposited in a church. The canon law follows the Roman law with a still greater leaning to the advantage of the church. No church property could be bequeathed. Manifest usurers were added to the list of those under disability. For the validity of a will it was generally necessary that it should be made in the presence of a priest and two witnesses, unless where it was made in pias causas. The witnesses, as in Roman law, must be idonei. Gifts to the church were not subject to the deductions in favour of the heir and the children necessary in ordinary cases. 5 In Eng land the church succeeded in holding in its own hands for centuries jurisdiction in testamentary matters-. The Roman law of wills has had considerable effect upon English law. In the words of Sir H. Maine, &quot;The 3 ii. 101. 4 For further information as to the history of the Roman will, see ROMAN LAW, especially pp. 674, 691, 702, 70(5, 713. 5 Most of the law is contained in Decretals, iii. 26, &quot; De Testameiitis.&quot;
 * Traite des donations e/itrc-rifs et des testaments (1855), preface.