pose. This subject is put in a strong light in Dr. Ogilvie's tract on the right to property in land: and the discourse of Bigot-Premeneu on Donations inter vivos, and the theory of the law of last wills, is well worth perusing. It contains also a good exposition of the reasons whereupon the French code has varied in some respects from the Roman, as in the rejection of Substitutions and Fidei Commissa. 2 Recueil, 361.

Society, however, has generally sanctioned the right of making last wills and testaments, 1st, From a wish to indulge the voice of nature which calls upon the dying to provide for the comforts of near and dear relations by the bequest of that property which can no longer contribute

to their own enjoyment. 2ndly, To encourage industry; by [ *486] *allowing the industrious to dispose by will of the fruits of their industry, and protecting that disposal, when made in conformity to the directions of law. These motives of permission, will leave great latitude as to the restrictions that may be thought necessary to fulfil the public views. Thus in a country like England, where institutions partake of the spirit of the feudal times, and where primogeniture calls for exclusive privileges, the law will be favourable to accumulations at the expence of the younger branches of a family in such a government as ours, where no reason of this kind prevails, we might properly direct or restrict the general licence of testamentary dispositions, upon principles more agreeable to natural equity. Solon first permitted the Athenians to make a will; from whom the Romans borrowed the law of the twelve tables, Pater familias, uti legassit super familia pecuniaque sua, ita jus esto. The modification of this rule by the Lex Falcidia, which permitted a testator to dispose arbitrarily but of three fourths or one half of his property, has been imitated, and properly as I think, by most of the civilized nations of Europe. Indeed when we consider the many capricious, not to say senseless and unjust dispositions of property that take place in countries where an unlimited right of devising is permitted-the neglect of children and relations for the sake of gratifying a selfish vanity, or a death-bed superstition-the culpable fondness of power that would extend for a century or two, or perpetuate if possible, the controul of a weak and dying man over property that he can no longer enjoy, as in the will of Mr. Thelusson-when we consider further, that those whom we bring into existence, have a right to call upon us to make that existence as comfortable as we are able, without unreasonably sacrificing our own comforts-we shall probably incline to think that some restrictions on the right of devising are neither inexpedient or unjust. Our German ancestors, refused the right altogether. Hæredes successoresque sui cuique liberi, et nullum testamentum, says Tacitus, De Mor. Germ: and such was the law of Greece before Solon, and of Rome till the period of the twelve tables.

$ De etymologia, p. 112.

Testamentum ex eo appeltatur, &c. Besides this, several definitions are given of a last will: Ulpian defines et, mentis nostræ justa contestatio, in id solemniter facta, ut post mortem nostram valeat. The definition of Modestinus is not unlike that. Domat defines a testament, to be the appointment of an executor or testamentary heir, according to the formalities prescribed by law. Dom. L. 1. tit. 1. sect. 1. But this is merely describing the person who is to put the will into execution, rather than the will itself. Aulus Gellius, *and Laurentius Valla laugh at the definition of Jus- [ *487 ] tinian, and say that testamentum is no more derived from mens, than calceamentum, ornamentum, salsamentum, &c. See enough of all this in the marginal annotations to Swinburne on wills, p. 2. The only defect I see, is, that the definition given in the text, will apply to a codicil also. In a will, there must be an executor: there need not in a Codicil. Swinburne's book contains a laborious collection of references to civil law writers on this subject; and to use his own expression (pref.) May in some sort be profitable to those Justinianists or young students of the civil law, who do intend to bestow the fruit of their study in the practice thereof."

Quinque verbis potest quis facere testamentum, ut dicat Lucius Titius mihi hæres esto. Dig. 28. 5. 1 Swinburne, 3, 4, 5.

1. De antiquis modis testandi civilibus. p. 112. All these ancient methods are enumerated by Ferriere in loco, but they are of no further importance at present, excepting to shew how long it was, before a little common sense took place of the absurd fictions on which the ancient customs were grounded.

Per as et libram. Cujas is of opinion that this kind of last will was abrogated by Constantine, Cod. 6. 23. 15.

Attamen partim. In part only because the same number of witnesses were still necessary. For though the civil law required but five witnesses, yet the balance holder and the purchaser made seven and it was to supply the place of these, that the prætorian law added two witnesses to the number required by the civil law. Harris.

3. De conjunctione juris civilis et prætorii. p. 113. That a will should be made at one sitting as it were, does not imply that acts of necessity might not intervene, as the giving of physic, &c. but, that there should be no intervention in the nature of business, as buying, selling, &c. 1. 28. Cod. h. tit.

A nostra constitutione. See Cod. 6. 23. 29 jubemus. Nov. 119 ch. 9. $4. Solemnitas addita a Justinio. p. 114. This solemnity introduced by lex consullissima, Cod. h. tit. was again altered by the novel 129. ch. 9. by which he permitted the name of the heir to be written by another. Hence a will required,

1st. That it should be made without the intervention of other business, either by the testator or the witnesses, while it was drawing up. 2ndly. That it should be executed in the presence of seven witnesses specially convened for this purpose.

[ *488 ]

*3rdly. That they should severally seal either the will itself, or the envelope.

4thly. That they and the testator should subscribe it.

5thly. That the name of the heir should be written either by the testator, or by some person at his request.

6thly. That the witnesses should be such as were capable of being heirs or legatees, (testamentio factio activa) but liable to the exceptions contained in the sixth section of this title. As, women, slaves, minors under puberty, persons deaf, dumb, insane, or legally disqualified, as persons convicted of libellous verses, &c. Dig. 22. 5. 21. Dig. 28. 3. 5.9. And Swinburne on wills, 345. Persons who had refused when called on to bear testimony. Aul. Gell. Lib. 5. ch. 23. and latterly, heretics lex. 4. Cod. de heretic. lex 3. Cod. de Apost.

These witnesses if unimpeachable at the time of the will being made, were unimpeachable afterward, Dig. 28. 1. 22. Several witnesses might be taken from the same family, but not out of the family of the testator: though the heir might be a witness, and so might a father to the will of his emancipated son, Dig. 28. 1. 20. or to the will of his son, respecting his peculium castrense. Dig. 29. 1. 23. 11. Legatees also might be witnesses. Dig. 28. 1. 20. though these provisions seem contrary to the rule, that no one shall be a witness in his own cause. Dig. 22. 5. 20. The notary might be a witness, but he could not receive a legacy in that case, Suet. Nero. 17. Dig. 48. 10. 22. 6 &c. Dig. 34. 8. 5.

$5. De annulis quibus testamentum signatur. p. 114. An inconvenient dissonance takes place in the United States, as to the necessity of actually sealing an instrument supposed to be sealed. In Pennsylvania and Virginia, a scroll with a pen, and the word seal, or the letters L. S. written therein, is held equivalent to actual sealing. It is not so in New York state. See the subject discussed in Warren v. Lynch, 5 John's N. Y. Rep. 239. This was the case of a note drawn in Virginia, but made payable in New York, and therefore the Lex Loci of New-York guided the decision according to the principle of Robinson v. Bland, 2 Burr. 1077. Ludlow et al. v. Van Rensselaer. 1 Johns. N. Y. Rep. 94 and Thompson v. Ketcham, 4 Johns. N. Y. Rep. 285.

[At common law, a seal is an impression upon wax or wafer, or some other tenacious substance, capable of being impressed. In Vermont, an impression of an official seal, made upon paper alone, is sufficient. (Revised Statutes of Vermont, 1839, p. 53.) In New York, it has been enacted, that in all cases where a seal of any Court, or of any public

officer, shall be authorized or required by law, the same may be affixed by making an impression directly on the paper, which shall be as valid as if made on a wafer or on wax; but that private seals shall be made as heretofore, on wafer, wax, or some similar substance. (2 R. S. 404, sec. 61, 62. 3 Hill. 493. This statute, however has been held not to apply to the seals of courts or public officers of another state. 2 Hill. 227. 1 Denio, 376. In New Hampshire, it has been held, that a distinct impression of the seal upon paper, is sufficient without wax or wafer. (Carter v. Burley, 9 N. H. Rep. 558.) In Maryland, a scroll has been considered a seal from the earliest period of its judicial history. In Virginia and Alabama, there must be evidence of an intention to substitute the scroll for a seal. But in Alabama, the scroll is now unnecessary, provided the deed or contract imports on its face, to be made under seal. In New Jersey, in instruments for the payment of money, but not in other cases, a scroll will supply the place of a seal. In Delaware, Virginia, Ohio, Kentucky, Michigan, Indiana, Illinois, Missouri and Tennessee, there are statutes authorizing the substitution of a scroll for a seal; but in Mississippi, deeds and conveyances of lands are required to be by writing, signed, sealed and delivered. See 4 Kent's Commentaries, 452. Many obligors may adopt one seal or one scroll; and the question whether the instrument is a sealed or an unsealed instrument, is one of intention, and the onus lies on the plaintiff to prove that the party adopted the seal or scroll. Hollis v. Pond, 7 Humphrey's (Tennessee) Rep. 222.]

Testamenti factio, is either

$ 6. Qui testes esse possunt, p. 114, factio activa, which is the right of making a will: or factio passiva, the right of taking by will: the latter is the meaning here as I think, on comparing this section with Tit. 19 sec. 4. p. 151, 152. Har

ris *translates the passage, "who are themselves legally ca- [ *489 ] pable of taking by testament."

Sed neque mulier.] Women may be admitted witnesses, by the civil law in all matters, whether civil or criminal, when the nature of the case is such, that other evidence cannot be obtained; but, when the choice of witnesses is altogether voluntary, as in making testaments, and doing many other acts, the civil law will not receive the testimony of a woman. Domat. lib. 3. t. 1. The Romans had also another reason for rejecting women as witnesses to wills; namely, because women were never suffered to be present at public assemblies, where all wills and testaments were formerly made. But to use the words of Swinburne; "whatsoever diverse do write, that a woman is not without all excep"tion, because of the inconstancy and frailty of the feminine sex, "whereby they may the sooner be corrupted; yet I take it, that their "testimony is so good, that a testament may be proved by two women

"alone, being otherwise without exception. Swin. of Testaments, "part IV. sect. 24." And, by the laws of England in general, women may be witnesses, sureties, guardians, &c. in all cases, as well as men. Harris.

For a list of civil law authors on the law of evidence, see Hargreave and Butler's Notes to Co. Litt. Index voce authors.

$7. De servo qui liber existimabatur, p. 115. Adrianus Catoni Cod. 6. 23. 1. How far the court of chancery will go in aiding powers defectively executed see Holmes v. Coghill, 12 Vez. 206, where most of the cases are cited.

$ 8. De pluribus testibus ex eadem domo, p. 115. This does not mean, of the family of the testator, otherwise it would be contrary to the spirit of Dig. 22.5. 6. Idonei non videntur esse testes quibus imperare potest ut testes fiunt: to which agrees the following. 9. De his qui sunt in familia testatoris.

$ 11. De legatariis et fidei commissariis, p. 116. see the note to $4. above.

Legatariis autem.] Although it was a general rule in the Roman law, that no one should be permitted to bear testimony in his own cause, Cod. 4. t. 20. 1. 10. yet legataries were allowed to give evidence upon this distinction; that they were particular, and not universal successors; and that a testament would be valid without legataries. The difficulty also, which must frequently have occurred, in obtaining so great a number of witnesses, as seven, might probably induce the Romans to be less strict, as to the persons, whom they admitted upon this occasion. Qui testamento hæres instituitur, says ULPIAN, in [ *490 ] eodem *testamento testis esse non potest: quod in legatario, et in eo, qui tutor scriptus est, contra habetur. Hi enim testes possunt adhiberi, si aliud eos nihil impediat ff. 28. t. 1. 1. 20. But by the practice of the ecclesiastical courts of this kingdom, which have the sole cognisance of the validity of all wills, as far as they relate to personal estate, no legatee, who is a subscribed witness to the will, by which he is benefitted, can be admitted to give his testimony in foro contradictorio, as to the validity of that will, 'till either the value of his legacy hath been paid to him, or he hath renounced it; and, in case of payment, the executor of the supposed will, must release all title to any future claim upon such supposed legatee, who might otherwise be oblig ed to refund, if the will should be set aside; and a release in this case is always made, to the intent, that the legatee may have no shadow of interest at the time of making his deposition. Swinb. 397. The same practice also prevailed at common law in regard to witnesses, who were benefited under wills, disposing of real estate. And, if a legatee, who was a witness to a will, had refused either to renounce his legacy, or