Page:The New International Encyclopædia 1st ed. v. 20.djvu/612

WILL. 1892); Wundt, Plujsiologische Psychologie (Leip- zig. 1893 t: Kiilpe. Outlines of Psycholoyy (Lon- don. 1899); Bain, Emotions and ^Vill (ib., 1888); Schneider, Der menschliche Wille (Ber- lin. 1882); Jliinsterberg, Die Willenshandlung (Freiburg, 1888).

WILL. A legal act to take effect at death, by which a person disposes of his property. In civil law such an act is called a testament. Power to testate has not been discovered in any primitive system of law; the primitive method of modifying succession is the adoption (q.v.) of the intended heir, who tliereby receives the right to succeed as a son. The modern will is a Roman invention. Its general difl'usion was ef- fected, in the ancient world, through the expan- sion of the Roman Empire: in the modern world, through the influence of the Roman Church. Roman tAW. The Roman testament grew out of 'mancipition.' This was originally a sale, in which the price was paid in a certain weight of copper. When the pajmient of price became sym- bolic, the transaction became a conveyance. A mancipation involved the presence of the con- veyor and conveyee, a scale-holder, and five wit- nesses. The evolution of testament out of manci- pation was accomplished as follows. Originally, the estate {familia) was conveyed to the in- tended heir {emptor familia:), on the understand- ing that he was not to assert his right until the conveyor's death. Later, a fiduciary conveyee was substituted, who took title to the estate not in his own interest, but in 'commission' (man- datela ), to dispose of it according to the instruc- tions of the conveyor. These instructions (nuncupatio) were at first given publicly and orally; later, the conveyor produced written and sealed tablets, and declared that these contained his instructions. To the tablets were then at- tached, for identifieation, the seals of the con- veyee, the scale-holder, and the five witnesses. It is probable that the conveyee discharged, at this stage in the evolution of testament, the duties of an executor; later, he became, like the scale-holder, a purely ceremonial person. At the close of the Republican period the praetors ac- cepted testamentary tablets bearing the seals of seven witnesses, and gave effect to the disposi- tions contained in such tablets, without inquiring whether the forms of mancipation had been ob- served: and in the second century of the Empire Marcus Aurelius enacted that an allegation that there had been no mancipation should not be heard. At this point the substitution of the written, secret, and revocable testament for the oral, public, and irrevocable conveyance was complete; but the ceremony 'with copper and the scales' was long retained 'in imitation of the old law.'

The rules governing the Roman testament at the close of the Republican period were very technical. It must create one or more lines, or universal successors, who were to take the whole estate, pay debts and special bequests (leguta), and retain the residue. The heir or heirs, accord- ingly, were at once exccntor.s and residuary legatees. If the heir was under age, or insane, his guardian acted as executor. If a testator had natural heirs under his household authority (sui, see Patria Potesta.s) he could indeed give the inheritance to others, but he must first ex- pressly disinherit the sui.

At the older civil law, again, only a Roman citizen of the age of puberty and not under p<j(rio potestas (q.v.) could make a testament; and only a person in existence at the time of the testator's death could take as heir. 'Uncertain persons' (like 'the poor') could not be instituted as heirs, nor could juristic persons (corpora- tions).

Informal dispositions of property in contem- plation of death were made possible by the enact- ment of Augustus that trust-bequests (fidei com- mifisa, q.v.) should be enforced whenever the intention of the decedent could be proved. By sucli trusts nearly all the technical limitations upon testation were ended. Such trusts were usually (but not necessarily) made in docu- ments termed codicils, and they might apply to the whole estate (universal fidei eommissa). In the later Empire there was a reaction toward stricter forms. Except in the case of soldiers in the field, who might testate informally, every declaration of last will must assume the form either of a regular testament with seven wit- nesses, or of a codicil with five witnesses. Codi- cils might be added to a testament, but they could be established independently (codicilH ah intestato), Justinian introduced several alter- native forms of testation for the benefit of per- sons who, by reason of their infirmities or their situation at the moment of testation, could not observe the usual forms.

Canox Law accepted the Roman law of testa- tion with few modifications. It accepted a testa- ment made in the presence of the parish priest ami two witnesses, and it introduced testamen- tary executors.

JIoDERN Civil Codes recognize various forms of testation. That most favored is the testament certified by a judge or by notaries and by at least two witnesses. Less formal testaments may be made at sea, in time of pestilence (especially in quarantine), by soldiers in the field, etc., but such testaments usually become invalid soon after the emergency has passed and the testator is able to observe the usual forms. In French, Italian, and Spanish law a testa- ment wholly w-ritten by the testator himself and also dated and signed by him (holograpliic' tes- tament) is valid without witnesses or formalities of any sort. This rule has been much criticised, on the ground that it facilitates forgeries and bases the succession essentially on expert testi- mony as to handwriting.

Inheritance Contract. In Roman law and in all modern legislations successions to the property of a husband or wife may be granted, in part at least, by the term of an ante-nuptial contract. In the late niedLTval customs of Germany reciprocal rights of inheritance might be established between any persons by contract {Erhrn-hriidrrunii. Erhnrtr<i<i) . and the same result was attainable in Northern I'^rancc by the establishments of 'reciprocal' testaments, which, unlike other testaments, were not revocable. In France reciprocal testaments were abolished by an ordinance of 17.1.5; but the inheritance contract was recognized in nearly all the State codes of Oermany and is recognized in the Ger- man Imperial code. The inheritance contract must be in writing ami must be certified by a judge or a notary.

Limitations on the Power of Testation.