Will and testament

“ A distinction was formerly made between a will and a testament; when lands or tenements were devised in writing, it was by will, and when goods and chattels were disposed of, it was by testament; but this distinction is now lost sight of, and the words are used indiscriminately, and we speak of the posthumous disposition of an estate, of whatever kind, as by last will and testament.
Since peculiar perils and obstacles beset a man in his last hours; as much uncertainty and contention have arisen as to his precise purpose and declaration ”

“ To come to Paul's argument. Civil law, which is God's ordinance, prohibits tampering with any testament of man. Any person's last will and testament must be respected. Paul asks: "Why is it that man's last will is scrupulously respected and not God's testament? You would not think of breaking faith with a man's testament. Why do you not keep faith with God's testament?" ”

“ It is my will and I do direct that neither the legacy to my granddaughter in the fifth item of my said last will and testament, or the legacy to Hester Prince in the seventh item of my said will, shall bear any interest until the same are due and payable, as provided in said items of my said will. ”

“ In regard to this subject he asserts that the rule is, if a man's testament be confirmed (and it is confirmed by his death) no man dare alter it nor add to it nor take away from it. So the jurists declare it to be a divine law that no one should break a man's last will. ”

“ The conception of a Will or Testament cannot be considered by itself. It is a member, and not the first, of a series of conceptions. In itself a Will is simply the instrument by which the intention of the testator is declared. It must be clear, I think, that before such an instrument takes its turn for discussion, there are several preliminary points to be examined—as, for example, what is it, what sort of right or interest, which passes from a dead man on his decease? ”

“ I Obadiah Hughes, of Aldermanbury, London, Minister of the Gospel and Doctor in Divinity, (being sensible of the frailty and uncertainty of life, and reckoning it a duty of very great importance incumbent upon every man to set his house in order, as well as his heart, before he dies,) do make this my last will and testament in manner following. I recommend my soul into the hands of God, to whom I am humbly bold thro’ Jesus Christ to claim a relation as my God and my Father ”

“ I Simpson Strachan, of said Island, and in the town of St. George Northant, do make this codicil to my last will and testament dated 1786, the day and month I do not at present recollect nor can I have recourse to said will by reason of its being buried under ground to prevent its being burnt by the enemy.” Sometimes a happy chance may preserve the tenour of a will. [Pg 53] The estate of a testatrix who died in 1872 being at the time valueless, her will was not proved. But recent improvement in certain property made probate a necessity. ”

“ Almighty, have made this my present testament of my last will for the disposing of the worldly goods which God has graciously granted to me.”
Such general prefaces have almost entirely disappeared from modern wills, but they were formerly a notable feature. It might be imagined that some justification was needed if a man intended to make his will. They are often beautiful, and sometimes quaint. ”

“ A child, ever so old, who should utterly deface his father's last will and testament, which had made ample provisions for his future wants, merely because he had not a perfect understanding of it, or on suspicion that there were some possible defects in it, could not be considered prudent in so doing. ”

“ But besides all this, in order that the instrument may not be contested, I am anxious to give it the greatest possible authenticity, therefore, one of my colleagues will help me, and, contrary to custom, will assist in the dictation of the testament. ”

“ This present one I declare being the only good one in which faith is to be put and which I require my executors, Administrators or Assigns will put in execution and adhere to and any other will or testament existing I may have forgotten to destroy, and differing from the substances, or intentions of the several articles of this one, I declare them null and of no force value, but this present one being made and written by me in my sound senses and good health. ”

“ So it has been again and again, from the case of Mary Stuart, writing her will in her own hand during the last hours before her execution, or of Archbishop Laud drawing up his will in the Tower, to the case of Señor Ferrer, dictating his testament in the prison chapel at Barcelona.
II
Strange histories, it will be seen, lie behind wills, dull and similar as at first sight the majority appears. The history may not always be explicit, but the suggestion conveyed by some gift or revocation, some phrase or fact, may often be completed by the reader’s imagination. ”

“ All the rest of my goodes Chattels, Leases, plate, jewles and Household stuffe whatsoever after my dettes and Legasies paied and my funerall expences discharged, I gyve devise and bequeath to my Sonne in Lawe John Hall gent and my daughter Susanna his wief whom I ordaine and make executors of this my Last will and testament. ”

“ Concerning the making of a latter testament, so large and ample is the liberty of making testaments that a man may, as oft as he will, make a new testament, even until his last breath; neither is there any cautel under the sun to prevent this liberty; but no man can die with two testaments, and therefore the last and newest is of force ”

“ The word testament is another name for the promise that God made unto Abraham concerning Christ. A testament is not a law, but an inheritance. Heirs do not look for laws and assessments when they open a last will; they look for grants and favors. The testament which God made out to Abraham did not contain laws. ”

“ A bequest is a leaving by will of personal property of any kind; a devise is a gift of [33] land by a last will and testament; a legacy is personal property bequeathed. Devise is sometimes used loosely for any testamentary disposition of property but, applied strictly, refers specifically to land, whereas legacy applies to any kind of personal property. ”

“ It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might almost say confounded, with the theory of a man's posthumous existence in the person of his heir.
The conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. ”

“ There is a remarkable certainty in the fulfillment of this wonderful will. It is as far above any earthly will or testament as the heavens are higher than the earth. In an earthly will made by man, the very incident that makes the will of force also makes it liable to become annulled; for after the death of the testator there frequently is found a defect in the will, also there are instances where the heirs, dissatisfied with their portion of the inheritance, proceed by legal process to annul the entire will and have a new one made according to their own desires. ”

“ A merchant, James Clegg, whose will was proved the same year as Johnson’s, declared that he made his testament “to explain my last will for the distribution of what shall result to be my property and to me belonging at the time of my decease, in such manner that I hope not to embroil those persons who will have the pleasure of surviving me.” Wills that stir the passions and sting the memory are indeed of frequent occurrence. Wills that satisfy every friend must surely be few. ”

“ In the other case we must bring the selfsame principles and feelings to bear on our inquiry, as we should apply in the interpretation of the last will and testament of a kind father, who with implicit confidence in our uprightness and straightforward dealing and affectionate anxiety to fulfil his intentions to the very utmost, had assigned to us the sacred duty of executor or trustee. ”

“ A third mode of making wills was introduced, which was effected per aes et libram, whence the name of Testamentum per aes et libram. If a man had neither made his will at Calata Comitia nor In procinctu, and was in imminent danger of death, he would mancipate (mancipio dabat) his Familia, that is, his Patrimonium to a friend and would tell him what he wished to be given to each after his death. There seems to have been no rule of law that a testament must be written. The heres might either be made by oral declaration (nuncupatio) or by writing. ”

“ The same embarrassment occurs, perhaps in a greater degree, in the exposition of several passages in the eighth and ninth chapters of the Epistle to the Hebrews, (manifestly written by a profound lawyer, be he Paul or Apollos) , where he uses language applicable indifferently both to a covenant inter vivos and a last will. For with us, a testament is simply a declaration of the last will of the testator, in regard to the disposition of his property after his decease, irrespective of any consent, or even knowledge, at the time, on the part of him to whom the estate is given ”

“ The Apostle says that he is speaking after the manner of men. He means to say: "I will give you an illustration from the customs of men. If a man's last will is respected, and it is, how much more ought the testament of God be honored: 'In thy seed shall all the nations of the earth be blessed.' When Christ died, this testament was sealed by His blood. After His death the testament was opened, it was published to the nations. ”

“ And for this cause he is the mediator of the new testament, that by means of death, for the redemption of transgressions that were under the first testament, they which are called might receive the promise of eternal inheritance."—Heb. 9:7-15.
"Wherefore when he cometh into the world, he saith, Sacrifice and offering thou wouldest not, but a body hast thou prepared me: ... Above when he said, Sacrifice and offering and burnt offerings and offering for sin thou wouldest not, neither hadst pleasure therein which are offered by the law; then said he, Lo, I come to do thy will, O God. ”

“ A duly executed testament remains valid until either revoked or rescinded.
1 A will is revoked when, though the civil condition of the testator remains unaltered, the legal force of the will itself is destroyed, as happens when, after making his will, a man adopts as his son either an independent person, in which case the adoption is effected by imperial decree, or a person already in power, when it is done through the agency of the praetor according to our constitution. In both these cases the will is revoked, precisely as it would be by the subsequent birth of a family heir. ”

“ It is permitted no one, either in testament or by gift, to leave or give anything to persons or places for the maintenance of pagan impiety, even if it is not expressly contained in the words of the will, testament, or donation, but can be truly perceived in some other way by the judges. ”

“ This will is, therefore, a mingling of the written and unwritten testament. The nuncupative will, the will by word of mouth, was common [Pg 94] in former times; but since the stricter methods of the Wills Act, 1837, it has been mainly in abeyance. Attempts are still made from time to time to establish the words of dying men. A recent action in the Court, to legalise some strangely made codicils, reminds us of James Peckett’s acquiescence and of older methods. “Don’t you want to leave something to me?” the testator was asked. ”

“ To devise property is to give or bequeath it by will. A will is a written instrument in which a person declares his will concerning the disposal of his property after his death. It is also called testament. ”

“ It has hitherto been believed that, in the infancy of the human race, wills were practically unknown. There probably never was a time when testaments, in some form or other, did not exist; but, in the earliest ages, it has so far been assumed that they were never written, but were nuncupatory, or delivered orally, probably at the deathbed of the testator. Among the Hindus to this day the law of succession hinges upon the due solemnization of fixed ceremonies at the dead man’s funeral, not upon any written will. ”

“ The first help is our only Mediator and Advocate, Jesus Christ, the Son of God. 1 John 2:2. He is our advocate, and pleads our cause before God, when we are hardly able to express what we want. He is therefore called the Logos, or the eternal Word of the Father, because God by him has discovered his will to us; as He is also called the Mediator, because He pleads our cause before God. A type of Him we have in Moses, the mediator of the Old Testament; to whom the people, flying from the face of God in Mount Sinai, said, “Speak thou with us” (Exod. 20:19) . ”

“ By the early common law of England, if a man had a wife and children, he had only a testamentary disposition of one-third of his property; the remainder, the shares of the widow and children, were called rationabiles partes, which must be intact. The personal attendance of the clergy on the dying would ordinarily lead to the disposition of the third which a person was privileged to bequeath by testament; and, from ancient wills, it is very evident this power was liberally and generally exercised in favor of religious uses, such as were deemed for the soul’s health of the testator. ”

“ Therefore her spirit I entrust To God’s tuition, till the dust And scales of earth fall from her eyes, And she awake in Paradise. Lastly, revoking every will, Without a wish or thought of ill, Praying for pardon from the great, Nor less from those of less estate, For word or deed, that I may be Remembered but with amity, Praying beyond all and above Pardon of His unbounded love, In perfect charity with all, Awaiting the great change and call, Hereto I set my seal and hand, That at the last my will may stand Inviolate, and none contest My mind and meaning manifest. ”