Chapter VI — On testaments

I. QUESTION I. What is a testament, and of how many kinds is it? ANSWER. It is the just declaration of a last human will concerning that which a man wills to be done after his death, with the direct institution of an heir. The true property of a testament, as distinguished from other last wills, is the institution of an heir, who represents the person of the deceased. A codicil is as it were the appendix of a testament, and is written for the changing of something of those things which have been disposed by testament, or for declaring or adding something. Only by privilege can an heir be instituted in a codicil. In some places a testament is valid without the institution of an heir.

II. A testament is twofold. One written, or closed and secured with seals. The other nuncupative, or open, which can be formed without writing by the mere naming of words. If a man makes several testaments, the last is to be stood by.

III. A legacy is a donation made by a testator, to be furnished by the heir, of some particular thing. A trust is a legacy or inheritance so committed to the trust of a legatee or heir that he cannot alienate it, but must deliver and restore it to him whom the testator prescribes. A trust is twofold: general, by which the whole inheritance is burdened; and particular, by which a determinate thing is committed to the trust of a legatee to be restored.

IV. QUESTION II. What solemnities are required for a nuncupative testament? ANSWER. By common law there are required seven witnesses, male, of full age, who have completed fourteen years, and who, free, invited, and asked, all hear the testator's will. For a written or closed testament it is required that the testator declare before seven witnesses that this is his testament. All the witnesses ought to subscribe. If any be ignorant of writing, let another write for him, and he ought to sign the testament with his own or a common seal. There are excluded from the number of witnesses the dumb, the deaf, the under-age, the heir's father, those who are under the testator's power, the blind, the demented, prodigals, and the infamous. These things by common law. For the rest, individual princedoms have their own peculiar laws, which are to be observed.

V. QUESTION III. What solemnities does a testament for pious causes demand? ANSWER. Testaments which destine an inheritance to the poor, to churches, monasteries, hospitals, maidens, or widows are called for pious causes. If a legacy be left in a testament to the aforesaid, the testament is not called for pious causes. As often as the testator's consent is established either from his private writing or from two witnesses, whether men or women, a testament for pious causes is valid, the solemnities prescribed by common law being removed.

VI. For the nuncupative testaments of the blind seven witnesses are required. Soldiers making a testament outside war are subject to the common law; but in war they ought to observe those things which are prescribed by the law of nature, namely that testaments be made before two witnesses, whether men or women. For peasants five witnesses are required. But the municipal laws are to be considered.

VII. QUESTION IV. What is an imperfect testament? ANSWER. A testament is called imperfect either because the solemnities prescribed by law are lacking, or because the testator, stricken by death, could not perfect it. This by common law is null. When it is doubted whether a testament be valid or not, authors commonly assert it to be valid. And if it be for pious causes, it is valid in each forum, as also are pious legacies. If a testator assert in his testament that he has given a signed schedule to his confessor or to another person, and that he wills all things contained in it to be valid, they are to be fulfilled no otherwise than a testament.

VIII. If a testator lacks full liberty, if he has been deceived by guile, enticements, or frauds, the testament made by him is null. Those who deceive a testator sin against justice, and are held to restitution. The same is to be said of those who craftily hinder a testament from being drawn up.

IX. QUESTION V. Who can draw up a testament? ANSWER. All endowed with the use of reason can make a testament concerning their own goods, unless some law stand in the way, as it stands in the way of religious by force of the vow of poverty, and of bishops as regards the revenues of the Church. Male minors before fourteen and female before twelve years cannot make a testament. Sons of a family can make a testament concerning castrensian and quasi-castrensian goods.

X. The crimes proved by a judge's sentence which forbid testament-making are: first, the hostile striking of cardinals, their imprisonment, or cooperation in these crimes; second, heresy, or favouring heretics, and harbouring them; third, condemnation for a libellous pamphlet; fourth, public usurers; fifth, those condemned to death, and those to whom water and fire are interdicted, are unfit to make a testament.

XI. QUESTION VI. Who cannot be instituted heirs? ANSWER. First, heretics and apostates if within a year they have not done penance. Second, those who cannot make a testament on account of a delict. Third, strikers of cardinals after the judge's sentence. Fourth, enemy cities. Fifth, those who kill a testator. Sixth, those who forbid a testament to be drawn up, or one drawn up to be revoked. Seventh, if an heir has gone in to the testator's wife, he is judged unworthy of the inheritance. Eighth, if the testator was a captive and the heir neglected to free him, he deserves to be deprived of the inheritance. But all these things here pertain to the civil forum.

XII. QUESTION VII. How do spurious and natural sons succeed a father? ANSWER. A natural son by common law succeeds in two ounces to a parent not having lawful sons. Two ounces comprehend the sixth part of the goods. This nevertheless in some places is limited, if the father have no wife. A spurious son can by right receive nothing beyond maintenance, whether by testament or ab intestato, even if the father lack lawful sons. Natural sons succeed a mother no otherwise than lawful ones. Various nevertheless are the laws of regions, by which one must stand.