Page:Black's Law Dictionary (Second Edition).djvu/1157

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TESTAMENTA CUM DUO

Testaments cum dun inter se pI|gns.natia l‘E[)eI'iIlIltI|l‘, ultinliun ratnm est; sic eat, cum duo inter se pugnantia. repeti- Illltlll‘ in endem testamento. C0. Litt. 112. “hen two coniiicting Wills are found, the last prevails; so it IS when two confiictinn clauses occur in the same will.

, es ' .....=. " nem Label-e dehent. Jenk. Cent. 81. IVi.l1s ought to have the hroadest interpretation.

TESTAMENTARY. Pertaining to :1 will or testnuleut: as tcstlunantary causes. De- rived from, founded on, or appointed by a testament or will: as a tcstarmenlavry guard- ian. letters testmncntlzru, etc.

A paper, instrument. document. gift, appointment, etc., is said to be “testameutary" “hen it is written or made so as not to take effect until after the death of the person nmking 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 different character. Sweet.

—Letters testament _y. The formal instrumont of authority and appointment given to an executor by the proper court. upon the ad- mission of the will to probate, empowering him to enter upon the discharge of his officc as exec-ntor.—'1‘estamentar-y capacity. That measure of mental ability which is recognized in law as snflicient for the making a wi . ee Nicewander v. Nice-wander. 51 Iii. 156. 37 l\'. E. 698: Delafiold v. Parish. 25 N. Y. 29; Y I‘liiCV v. Cutbbertson. 103 P11 305, ‘l . ti.

" 56 Am. Rep. 218: Leech v. Leech. 21 Pa. 6: Ilulhnld v. Robeson. 2 Her. (Del.) 379; Lowe v. Williamson. 2 N. J. Eq. 85.—Testa- mentary causes. In English law. Causes or matters relating to the probate of wilm, the granting of administrations, and the suing for legacies, of which the ecclesiastical courts have jurisdiction. 3 Bl. Comm. 95. 98. Testamentary causes are causes relating to the vaiidity and execution of wlls. The phrase is generally confined to those causes which were formerly matters of ecclesiasticai jurisdiction, and are now dealt with by the court of probate. Moz- ley 8: Whiticy.—'I‘estamentary disposition. A disposition of property by way of gift, which is not to take effect unless the grsntor dies or until that event. Diefendorf v. Dnefondorf. 56 llun, 639. S N. Y. Supp. 617; Chestnut St. Nat. Bank v. Fidelity Ins., etc., Co., 186 Pa. 333. 40 Ali. 486. 65 Am. St. Rep. 860.—Testa- mentary guardian. A guardian zrppointcd by the last will of a father for the person and l'P‘ll and personal estate of his child until the latter arrives of fuii age. 1 Bl. Comm. 462; 2 Kent. Comm. 224.—aesta.mentary paper-. An instrument in the nature of a wiil; an un- probared will: a paper writing which is of the character of 21 will, though not formnlly such, and which, if allowed as a testament, will have the effect of a will upon the devolution and distrihution of property.—'I‘estamenta1-y suecession. In Louisiana, that which resuits from the institution of an heir contained in a testament executed in the form prescribed by law. Ci\'. Code J00. art. 876.—'l‘esta.- mental-y trustee. See TRUSTEE.


TESTAIVLENTI FACTIO.}} Lat. In the eivil law. The ceremony of making 21 tests- ment, either as test-ator, heir, or witness.

1149

TESTATUM

TESTAMENTUM. Lat. In the civil law. A testament; a will, or inst will.

In old English law. A testament or will; a disposition of property made in contemplation of death. B1-not fol. 60.

A general name for any instrument of con- veyance. including deeds and chaitcis, and so called either because it furnished written

" y of the conveyance, or hecause it was authenticated by witnesses. (testes) Spehnan

—'l‘estamentI|.In lnnfiiciosuni. Lat.

In the eivii law. )

An inofficious testament, (q. I}.

Teltamentnm eat vuluntatiu nest:-:2 justa Iententia, de eo quad quis post mortem snam 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- gai deciaration of a man's intentions which he willa to be performed after his death."] Dlg. 28, 1, 1; 2 Bl. Column. 499.

Testamentum, i. e., " mentis. facts nullo prasente metu per-iculi, sed

gitatione mortalitatis. Cu. Litt 3""- A testament. L 9., the witnessing of ones intention, made under no present fear of danger, but in expectancy of death.

Testamentnm omne mo:-to consummatur. Every will is perfected by death. A wiil 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.

'l'ES'I‘A'1.‘ION. Witness; evidence.

TESTATOR. One who makes or has made a testament or wiil; one who dies leaving a Will. This term is borrowed from the civil law. Inst. 2, 14_ 5, 6.

Testatox-is ultima. voluntas est perimplenda secundum vex-am intentiwnem susm. Co. Litt. 322. The last will of a testator is to be thoroughly fulfilled according to his real intention.

TESTATRIX. A woman who makes a will; a woman who dies leaving a will: in female tmtator.

TESTATUM. In practice. When :1 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