WILL. 



or grand-children, or, in failure of them, relations 

 in the ascending line, in which case it was neces- 

 sary for him to make them his heirs, or to disinherit 

 them explicitly. The entire omi-sion to name such 

 relations in the will, made it void (testamentum 

 HK//U//I). and the subsequent birth of a legal heir 

 was equivalent to a revocation of the will (testa- 

 mentum raptvin). A te- lament passing over heirs 

 entitled by law to a share (and such heirs included, 

 besides children and parents, also sisters and 

 brothers) was culled inofficious (inofficiosum}, and 

 their legal portion might be claimed by such heirs. 

 When the testator lost the right of bequeathing, 

 the testament became invalid (irritum), as well as 

 when the appointed heir ceased to be such, for 

 some reason, and no one was substituted in his 

 place (testamentum destitutum). Even in earlier 

 times, the external formalities were dispensed with 

 in particular kinds of wills (testamenta privilegiata), 

 particularly, 1. the testaments of soldiers, which 

 were almost entirely relieved from them, as well as 

 from the internal formalities ; 2. testaments made 

 in the country, which required but five witnesses ; 

 3. testaments made in times of contagious and epi- 

 demic diseases, or during a dangerous sickness, in 

 which case the interruption of the ceremony did not 

 make the will invalid ; 4. testaments of travellers: 

 also when parents left their property to their chil- 

 dren only, no other formality was necessary than 

 that they should write the will themselves, and 

 mention the names of the children, and the date of 

 the instrument : these were private testaments. In 

 the times of the emperors, in whom the whole 

 authority of the state was concentrated, a testa- 

 ment required no external formality but that of be- 

 ing delivered in person to the monarch ; in fact, it 

 was sufficient to deliver it to the officers of justice, 

 and have it entered in the public records. 



Modern legislation has changed much in these 

 forms, though, generally speaking, they are yet re- 

 quired in most countries of Germany. In the middle 

 ages, the ecclesiastical courts, almost every where, 

 claimed the oversight of testaments, as, even now, 

 testaments in England fall within the jurisdiction 

 of these courts, because it was maintained that the 

 future state of the soul of the testator was con- 

 nected with the character of the testament, which 

 therefore fell within the province of the church, 

 and that every one was bound to make some 

 bequest for pious purposes, for the salvation of his 

 soul. The formalities connected with the making 

 of testaments were lessened, and it was declared to 

 be sufficient that they should be put in writing in 

 presence of the parish priest and two witnesses ; 

 and legacies for the benefit of the church were re- 

 lieved from all formalities. This rule of making a 

 testament in the presence of the clergyman, is no 

 longer the common law of Germany ; but it has 

 been retained as the local law of many places. The 

 Roman regulations respecting judicial testaments 

 have also been modified in Germany. In Saxony, 

 a testament is judicial if it is drawn" up in court by 

 the judge and the clerk, or out of court by the 

 judge, the clerk and an assessor (Schoppe}, or is 

 handed to them. The presence of the judge may 

 be supplied by that of a second assessor. In other 

 parts of Germany, a testament may be drawn up by 

 a member of the town council and its clerk. But 

 privafc; testaments made according to the Roman 

 form are also valid. In Prussia, judicial testaments 

 are the- only ones allowed. The testator either 

 appears in court, and there deposits his will in 



writing, mid, if he so pleases, sealed ; or he declare! 

 I his will orally, und it is taken down in writing; or 

 he invites a deputation of the court to his house. In 

 Austria, both judicial and extra-judicial testaments 

 are valid. At the making of the former, at least 

 two persons belonging to the court, and acting under 

 oath, must be present ; and, if the testator gives in 

 his testament in writing, it must be signed by himself. 

 A last will is also valid, a. if it is written entirely by 

 the testator's own hand, and signed with his name; 

 b. if it is written by another person, but signed by 

 the testator, and acknowledged before three wit- 

 nesses; or, c. if it is read before three witnesses! 

 or, d. only orally declared. These last forms will 

 probably be changed at some future period, as af- 

 fording too much facility for forgery. In France, 

 there are but two forms of testaments, the written 

 testament, when the testator writes the will en- 

 tirely himself, signs it, and affixes the date to it 

 (testament holographe), and the public testament, 

 when the testator declares his will orally, and signs 

 the protocol before two notaries and two witnesses, 

 or one notary and four witnesses. If the testator 

 cannot write, this circumstance must be mentioned, 

 the testator may also deposit with the notary a 

 sealed instrument (testament mystique). In this 

 case, six witnesses must be present at the declara- 

 tion that the paper contains the will of the deposi- 

 tor. So great a variety of forms existing in various 

 countries, it may become of great importance to 

 know by what laws the validity of a will is to be 

 judged. In general, the laws of the testator's na- 

 tive country must be followed ; so that a Prussian 

 or a Frenchman can make a testament in foreign 

 countries only in the way prescribed by the laws of 

 his own country. But in respect to the form 

 of public acknowledgment, the laws of the coun- 

 try must decide; for example, a Frenchman in 

 foreign countries may resort to the courts instead 

 of notaries; and, if a Prussian should make a will 

 in France, he must apply to the notaries to give 

 validity to the instrument. The testament, accord- 

 ing to the Roman law, is always revocable ; and no 

 person can legally divest himself of this privilege of 

 change. The Romans did not admit of a man's 

 binding himself to leave his property to a parti- 

 cular person. In Germany, however, an irrevocable 

 right of inheritance can be obtained by contract, 

 and the obligation is often made mutual, as in ma- 

 trimonial contracts. Except in such cases, the tes- 

 tator can always change his testament, by taking 

 back the instrument deposited in court, cancelling 

 a private testament, or making another. But on 

 this point, also, laws differ. According to the 

 common law of Germany, the taking back of the de- 

 posited will is not a revocation of it, unless the in- 

 tention of the testator is clearly manifested ; for 

 example, by tearing off the seals. The same is the 

 case in Saxony. But in Prussia the taking back 

 of a testament deposited in court, makes it void. 

 A later testament has preference over an earlier 

 one ; but, if there are several testaments, and it 

 cannot be ascertained which is the latest, both are 

 valid ; and, if the later testament was invalid from 

 the beginning, the earlier one remains in force. No 

 regularly-made testament can be annulled by a mere 

 oral declaration ; but the Roman law provides, that 

 if a testament is ten years old (in which case it be- 

 came void by the earlier law), it may be revoked 

 by a declaration before three witnesses. Modern 

 laws require for such oral annulment, unaccompa- 

 nied by the act of erasure, tearing off seals, &c., the 



