Blacks Law Dict. 1st ed

TESTAMENTARY CAPACITY

1166

TESTATUM

gal declaration of a man's intentions whicb he wills to be performed after his death."} Dig. 28, 1, 1; 2 Bl. Comm. 499. Testamentum, i. e., testatio mentis, facta nullo prsesente metu periouli, sed cogitatione mortalitatis. Co. Litt. 322. A testament, i. e., the witnessing of one's intention, made under no present fear of dan ger, but in expectancy of death. TESTAMENTUM INOFFICIOSUM. Lat. In the civil law. An inofficious testa ment, (q. o.) Testamentum omne morte eonsum matur. Every will is perfected by death. A will speaks from the time of death only. Co. Litt. 232. TESTARI. Lat. In the civil law. To testify; to attest; to declare, publish, or make known a thing before witnesses. To make a will. Calvin. TESTATE. One who has made a will; one who dies leaving a will. TESTATION. Witness; evidence. TESTATOR. One who makes or has made a testament or will; one who dies leav ing a will. This term is borrowed from the civil law. Inst. 2, 14, 5, 6. Testatoris ultima voluntas est perim plenda secundum veram intentionem suam. Co. Litt. 322. The last will of a testator is to be thoroughly fulfilled accord ing to his real intention. TESTATRIX. A woman who makes a will; a woman who dies leaving a will; a fe male testator. TESTATUM. In practice. When a writ of execution has been directed to the sheriff of a county, and he returns that the defendant is not found in his bailiwick, or that he has no goods there, as the case may be, then a second writ, reciting this former writ and the sheriff's answer to the same, may be directed to the sheriff of some other county wherein the defendant is supposed to be, or to have goods, commanding him to ex ecute the writ as it may require; and this second writ is called a "testatum" writ, from the words with which it concludes, viz.: "Whereupon, on behalf of the said plaintiff, it is testified in our said court that the said defendant is [or has goods, etc.] within your bailiwick." In conveyancing. That part of a deed which commences with the words, "This in denture witnesseth."

pointment, etc., is said to be "testamentary" when it is written or made so as not to take effect until after the death of the person making it, and to be revocable and retain the property under his control during his life, although he may have believed that it would operate as an instrument of a differ ent character. Sweet. TESTAMENTARY CAPACITY. That measure of mental ability which is recognized in law as sufficient for the making a will. TESTAMENTARY CAUSES. In En glish law. Causes or matters relating to the probate of wills, the granting of administra tions, and the suing for legacies, of which the ecclesiastical courts have jurisdiction. 3 Bl. Comm. 95, 98. Testamentary causes are causes relating to the validity and execution of wills. The phrase is generally confined to those causes which were formerly matters of ecclesiastical jurisdiction, and are now dealt with by the court of probate. Mozley & Whitley. TESTAMENTARY GUARDIAN. A guardian appointed by the last will of a father for the person and real and personal estate of his child until the latter arrives of full age. 1 Bl. Comm. 462; 2 Kent, Comm. 224. TESTAMENTARY PAPER. An in strument in the nature of a will; an unpro bated will; a paper writing which is of the character of a will, though not formally such, and which, if allowed as a testament, will have the effect of a will upon the devolution and distribution of property. TESTAMENTI PACTIO. Lat. In the civil law. The ceremony of making a testa ment, either as testator, heir, or witness. TESTAMENTUM. Lat. In the civil law. A testament; a will, or last will. In old English law. A testament or will; a disposition of property made in con templation of death. Bract, fol. 60. A general name for any instrument of con veyance, including deeds and charters, and so called either because it furnished written testimony of the conveyance, or because it was authenticated by witnesses, (testes.) Spelman. Testamentum est voluntatis nostree justa sententia, de eo quod quis post mortem suam fieri velit. A testament is the just expression of our will concerning that which any one wishes done after his death, [or, as Blackstone translates, " the le

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