Question II: What solemnity is required for a testament, closed and open

BY the common law, for the validity of a testament in writing there are required seven witnesses, male, free, or held as free, of age, and requested for that act not by chance, and present, likewise subscribed, before whom the testator declares that this is his testament, and he subscribes it, if he knows how to write; otherwise let him have it subscribed through another as an eighth witness.

FOR the nuncupative testament it is further required that the witnesses hear the testator and understand his will; yet the witnesses need not subscribe or sign the testament itself l. Hac consultissime, C. de Testam. where it is added, if any of these is lacking, the testament is not valid. The same is laid down in Instit. de testam. §. sed paulo infra.

IN codicils, however, and any other last will, regularly five witnesses must be employed, whether requested or chance witnesses. When indeed it is done in writing, they must subscribe L. ult. C. de codicillis, and in these women too can be witnesses; except the codicils of the blind, in which the solemnity of testaments is necessary L. Hac consultissime, C. de his qui testamenta facere possunt.

FOR the validity of a testament it is also required that the witnesses be requested, which must be proved by two witnesses without exception.

FOR a sealed Testament it is also required that the witnesses be present when the testator hands it with his own hand to the Notary, and hear him saying that it is his Testament.

It is also required that the witnesses themselves all subscribe together, and if they do not know how, others do this in their name. Note, however, that witnesses who are subscribed are not valid for legacies, or the inheritance disposed in the same testament, as is had in the law, as Molina notes disput. 125. and Fagundez cap. 2. num. 25.

IN time of plague, two or three witnesses suffice, as is commonly taught. The law, however, though it relaxes the number of witnesses, does not relax the conditions, that they be male, of age, etc. In codicils, however, women can also be witnesses. See Fagundez.

IT is put into the testament, that if it be not valid as a testament, it may be valid as a codicil in every better way, which clause, once added, was inserted, as if the solemnity of the testament be lacking, whence it is made null; let it be valid with the solemnity of a codicil l. finali, §. Illud quoque, C. de Codicillis, in such a way that, although the direct institution of an heir is null, the legacies left in it are nevertheless valid: Nay, even, when the necessary heirs fail, the institution of an extraneous heir be converted into a fideicommissary one, and the heirs ab intestato be bound to restore the inheritance to him, with only the Trebellian quarter deducted from it: likewise, if the testator in his testament unjustly passes over some necessary heir, and institutes an extraneous heir, then the heir passed over is bound to restore the remainder of the inheritance to the extraneous one, his own legitimate portion alone reserved to him, as Molina proves from the law disp. 132. Less. l. 2. cap. 19. dub. 1. Tanner. disp. 4. quaest. 7. num. 305.

YOU will ask: whether a testament begun, but not completed because death supervened, is valid for that part by which it was begun.

IT is answered negatively; nay, even if it be completed, and he die before it is read, it will still be invalid l. fideicommissum, §. Quoque, ff. de Legatis 3. according to Bartolus and others. See Molina disp. 127. Couar. de Testam. C. relatum 1. num. 9.

SINCE, however, in C. Relatum, and cap. cum omnes, de testamentis, it is decreed that the testament of clerics be valid even for non-pious things with two suitable witnesses, and the parish Priest, present. And indeed in the Ecclesiastical state it is valid.

THE question is: whether it is valid also in the states of all Princes.

SOME deny it, as in Fagundez cap. 2. num. 28.

YET, that it is valid, Julius Clarus asserts l. 3. sent. quaest. 6. Sylvest. v. Testam. 1. quaest. 3. Vallascus consult. 74. and others, as in the Gloss on cap. cum esses, de testam.

IT is proved from cap. cum esses, de testam. where the supreme Pontiff derogates from the laws of secular Princes in this part: for Alexander III., most expert in law, says there to the Bishop of Ostia that two witnesses suffice with the presence of the parish priest, and he rejects the contrary custom that had prevailed in that Episcopate, lest the testaments of clerics, etc.; and the reason is given, because upon the mouth of two or three witnesses every word stands.

NAY, C. cum esses, de testamentis seems to speak even of the testaments of the Laity, and of these the passages cited speak. The canonical law, moreover, relies on the fidelity of the Parish priest, who, if he is faithful in the greater matter, namely the business of the soul, will be faithful also in the business of things. The canonical law judges the same of the Judge, and of the cleric Notary, namely that their presence with two witnesses will exclude all fraud; yet the witnesses must be suitable, as Couar. warns ad cap. cit. not women.

FOR the negative is the more common view, as Fagund. says l. 6. cap. 2. num. 30. and it avoids litiis and controversies; but in the matter of testaments the safer way must be trodden. The Decree of Alex. III., moreover, was made for the Episcopate of Ostia and other places of the Church; nor is it credible that the Pope wished to derogate everywhere on earth from a law so common and celebrated among all Princes. So Zabatella, Archid. Ioan. Andr. and others ad C. illud, cum esses; with whom Fagund. subscribes num. 38.

NOTE also that testaments made by parents among their children are valid with only two witnesses present, and the same is laid down of testaments for pious causes, l. Hac consultissima, §. ex imperfecto, C. qui testamentum facere possunt, et l. ult. C. Familia Erciscundae; witnesses suffice whether male or female. And by sons are understood also grandsons and descendants. Yet in a sealed testament the subscription must be made by the testator, or by the children instituted by him, according to Auth. si modo, C. familia erciscundae, or at least let the testator write distinctly the names of the sons whom he leaves as heirs with their portions, with the time added at which the testament is drawn up, according to Auth. Quod sine, C. de testamentis.

BUT if besides the children some extraneous person is mixed into that testament, it is invalid as regards her, and what was left devolves upon the children ex l. ult. as Molina pursues at length disp. 128. Tanner. disp. 4. quaest. 7. dub. 11. num. 304.

NOTE that a testament made before the Prince is valid without the solemnities. L. omnium, C. de testam. Likewise the testament of a soldier, which is valid with only two witnesses, even women l. Divus, ff. de militari testam. Nay, when he is engaged in battle, any signs whatsoever suffice, as is had in the Bavarian law, that he may write in blood on his shield, scabbard, etc., and two witnesses prove his Chyrograph. See Bassaeus num. 3.