Question I: What a testament is, and of how many kinds

A TESTAMENT is defined from Ulpian, Leg. 1. ff. de testamentis: A testament is the just sentence of our will concerning that which one wishes to be done after his death, to which the Gloss of Accursius adds, and Bartolus, l. 1. ff. de testamentis cum directa haeredis institutione, which clause is intrinsic to a testament, for without it a testament does not subsist. §. Ante haeredes, Instit. de legatis, and l. 1. ff. de haeredibus instituendis, and the Doctors teach, cited in Fagundez, de contract. l. 6. cap. 1.; now, however, you except a testament for pious causes. This I gather from D. Bonaventure on chapter 4 of our Rule, at the end, where from that he gathers its immobility, since it is the last will; for if many testaments be present, only the last has force, although several codicils may be able to have force, because these do not dispose adequately of the whole right, but of certain parts. He has the same in the Dicta Tu. 1. cap. 1.

MOREOVER, a Testament is divided into the closed, and the open. A closed testament is that which is composed secretly by the Testator with his own hand, or another's, and with a notary, the witnesses being present and called, and ignorant of what it contains, and it is handed over for approbation. The open, which is also called nuncupative, is that which in the presence of the very witnesses is openly made and declared in words, and for this reason it is called open, and without writings, because although ordinarily it is put in writing, nevertheless it can subsist without writing.

TO COMPOSE a testament was instituted by the law of nations, although some solemnities have been imposed by the civil law. Thus the Doctors commonly assert: For before the civil law, in which the solemn manner of testaments is provided, existed, testaments already existed before. Thus Genes. 48. Jacob left to Joseph the city of Sichem, which he had taken by arms from the Amorrhite.

From which it follows that a Prince cannot justly take away from anyone a dominion acquired by testament, which he could do if it were of the civil law, as Clarus notes, l. 1. sent. §. Princeps, and l. 3. §. Testamentum, quaest. 2. at the end, and Fagundez l. 6. de contract. cap. 1. num. 10.

A CODICIL is defined, Instit. et C. de codicillis: It is the last disposition of the will, without the direct institution of an heir, as Molina notes, Tom. 1. de iust. tract. 2. disp. 124.

A LEGACY is a certain donation left in a testament, to be paid after the death of the testator by the heir, §. 1. Instit. de Legatis: of which in the following disputation.

A FIDEICOMMISSUM is a legacy which is committed to the faith of the heir, that it be rendered by him to another: Moreover it is called a fideicommissum, a species of the more urbane legacy; for it is made by the words, I wish, I ask, but it has no less force than I command, etc., as is gathered from Leg. et fidei commissum, ff. de Legatis 3.