§ I. On the Nature, Division, and Form of Testaments

A testament, from Roman law, is the just sentence of our will concerning that which someone wishes to be done after his death. This definition seems to be preferred to that which Busenbaum hands down and St. Alphonsus implicitly approves, n. 919, both because our Kent embraces it, and because it does not require the direct institution of an heir, which is consonant with our laws. - Cf. Kent, Comment. vol. 4, part 6, lect. 68, n. 502.

A testament is distinguished variously. For:

1st. From Roman law it is solemn and privileged. A solemn testament is subdivided into closed and open. The first, which is also called written, is that which, sealed with a seal, is handed over to be subscribed by seven suitable witnesses, males, pubescent, etc., with whom the testator subscribes, if he can; but if he cannot, an eighth witness must accede. The other, namely open, is made before seven witnesses, whether by an open writing or by the living voice, and therefore it is also called nuncupative. But a privileged testament is that which is valid without solemnities. Such is a testament established by a soldier, or by others in time of plague or in other circumstances of this sort.

2nd. From our law a testament is written, nuncupative, and holographic. A testament which is called written is generally that which is made concerning immovable goods; it must bear on its face the name of the testator, or at least be acknowledged by him as his own before two witnesses, who also must subscribe. The number of witnesses is diverse in diverse States, but nowhere are seven required. - I said concerning immovable goods, because a testament concerning movables is recognized as valid provided it has been made according to the laws of the place where the testator has domicile. A nuncupative or verbal testament is also admitted in the States of New York and New Jersey for sailors and soldiers; indeed in some other States it is valid for all, but with certain conditions observed. Nevertheless it must be noted that a testament of this sort often gives origin to lawsuits and discords, and therefore is not safe. A holographic testament also exists among us, but only for the State of Louisiana. - Cf. Kenrick, nn. 29 and 31. - Kent, Comment. vol. 4, nn. 513 and following. - Wells, Every Man, etc., pp. 92 and 93.

A nuncupative, or verbal, or oral testament is made before witnesses by a testator placed in extremis or placed in equivalent circumstances; afterwards it is reduced to writing. This testament is reserved to soldiers under arms and to sailors navigating; it is valid for certain goods only (personal estate) in Massachusetts, Minnesota, New York, Rhode Island, Virginia, West Virginia, Montana; in Georgia for personal and real goods, as they are called. In various States the conditions vary. - Bouvier, Law Dictionary, Ed. 8, "Nuncupative Will."

A holographic testament is written wholly by the hand of the testator, is signed by him, and a date is affixed by him. Generally it does not need witnessing.

A mystic testament is written and must be signed by the testator before seven witnesses. It is recognized in the Civil Code of the State of Louisiana.

I say. That a testament may be firm and valid, at least in the external forum, it is required: 1st, that it have the conditions required for gratuitous contracts, and first of all free and spontaneous consent; 2nd, that it not be made by one incapable of testating, nor in favor of one incapable of receiving, or of succeeding into the rights of the deceased; 3rd, that the formalities prescribed by law be observed. - I said at least for the external forum, because it is disputed among theologians whether execution of legal formalities is required for the forum of conscience, as will be said immediately. But who are incapable of testating and of succeeding into the rights of the deceased will be said immediately in § II.

Question. Are testaments valid, whether for profane causes or for pious causes, if they lack legal forms?

Resp. If it is a question of profane causes, it is sharply disputed, and a threefold probable opinion is had: the first holds that testaments of this sort are valid from natural law and in the forum of conscience; another teaches that by force of positive law they are to be held utterly void; finally the third establishes that favor must be shown to the possessor until the matter is settled by the judge. But if the discussion is of testaments in favor of pious causes, the certain, most common, and altogether to be held opinion teaches that testaments of this sort are valid, and that no one can with a safe conscience, under pretext of lacking these formalities, retain an inheritance which has been assigned to some pious cause. - The reason is that causes of this sort pertain to the Church and are subject to her jurisdiction; but the Church is free and immune from civil power in all those things which are directly subject to her jurisdiction.

§2. In last wills for the good of the Church, the solemnities of civil law are to be observed if it can be done; if these have been omitted, the heirs are to be admonished to fulfill the will of the testator (Can. 1513).

§1. The reduction, moderation, and commutation of last wills, which must be made only from a just and necessary cause, are reserved to the Apostolic See, unless the founder has expressly conceded this power also to the Ordinary of the place.

§2. If nevertheless the execution of imposed burdens, because of diminished revenues or another cause, with no fault of the administrators, has become impossible, then the Ordinary also, after hearing those whose interest is involved, and with the will of the founder preserved in the better way by which it can be done, will be able equitably to diminish the same burdens, except the reduction of Masses, which always belongs uniquely to the Apostolic See (Can. 1517).