Extracted From:
  A LAW DICTIONARY ..., SIXTH EDITION, 1856
  by John Bouvier
  CHILDS & PETERSON, PHILADELPHIA

TEST. Something by which to ascertain the truth respecting another thing.... 

TESTACY. The state or condition of dying after making a will, which was valid at
the time of testator's death. 

TESTAMENT, civil law. The appointment of an executor or testamentary heir,
according to the formalities prescribed by law....
   At first there were only two sorts of testaments among the Romans that called
calatis comitiis, and another called in procinctu. (See below.) In the course of
time these two sorts of testament having become obsolete, a third form was
introduced, called per aes et libram, which was a fictitious sale of the
inheritance to the heir apparent. The inconveniences which were experienced from
these fictitious sales again changed the form of testaments; and the praetor
introduced another which required the seal of seven witnesses. The emperors
having increased the solemnity of those testaments, they were called written or
solemn testaments, to distinguish them from nuncupative testaments which could
be made without writing. Afterwards military testaments were introduced, in
favor of soldiers actually engaged in military service. 
   Among the civilians there are various kinds of testaments, the principal of
which are mentioned below. 

   A CIVIL TESTAMENT is one made according to all the forms prescribed by law,
in contradistinction to a MILITARY TESTAMENT, in making which some of the forms
may be dispensed with. Civil testaments are more ancient than military ones; the
former were in use during the time of Romulus, the latter were introduced during
the time of Coriolanus....

   A COMMON TESTAMENT is one which is made jointly by several persons. Such
testaments are forbidden in Louisiana, ... and by the laws of France, ... in the
same words, namely, "A testament cannot be made by the same act, by two or more
persons, either for the benefit of a third person, or under the title of a
reciprocal or mutual disposition." 

   A TESTAMENT CALATIS COMITIIS, or made in the comitia, that is, the assembly
of the Roman people, was an ancient manner of making wills used in times of
peace among the Romans. The comitia met twice a year for this purpose. Those who
wished to make such testaments caused to be convoked the assembly of the people
by these words, calatis comitiis. None could make such will's that were not
entitled to be at the assemblies of the people. This form of testament was
repealed by the law of the Twelve Tables. 

   TESTAMENT AB IRATO, a term used in the civil law. A testament ab irato, is
one made in a gust of passion or hatred against the presumptive heir rather than
From a desire to benefit the devisee. When the facts of unreasonable anger are
proved, the will is annulled as unjust, and as not having been freely made....

   A MYSTIC TESTAMENT is also called a SOLEMN TESTAMENT, because it requires
more formality than a nuncupative testament; it is a form of making a will,
which consists principally in enclosing it in an envelope and sealing it in the
presence of witnesses. 
   This kind of testament is used in Louisiana. The following are the provisions
of the civil code of that state on the subject, namely: the mystic or secret
testament, otherwise called the close testament, is made in the following
manner: the testator must, sign his dispositions, whether he has written them
himself, or has caused them to be written by another person. The paper
containing, those dispositions, or the paper serving as their envelope, must be
closed and sealed. The testator shall present it thus closed and sealed to the
notary and to witnesses, or he shall cause it to be and sealed in their
presence; then he shall declare to the notary, in the presence of the witnesses,
that that paper contains his testament written by himself, or by another by his
direction, and signed by him, the testator. The notary shall then draw up the
act of superscription, which shall be written on that paper, or on the sheet
that serves as its envelope, and that act shall be signed by the testator, and
by the notary and the witnesses.... All that is above prescribed shall be done
without interruption or turning aside to other acts; and in case the testator,
by reason of any hindrance that has happened since the signing of the testament,
cannot sign the act of superscription, mention shall be made of the declaration
made by him thereof; without its being necessary, in that case, to increase the
number of witnesses.... Those who know not how, or are not able to write, and
those who know not how, or are not able to sign their names, cannot make
dispositions in the form of the mystic will.... If any one of the witnesses to
the act of superscription knows not how to sign, express mention shall be made
thereof. In all cases the act must be signed by at least two witnesses....

   NUNCUPATIVE TESTAMENT, a term used in the civil law. A nuncupative testament
was one made verbally, in the presence of seven witnesses; it was not necessary
that it should have been, in writing; ....
   In Louisiana, testaments, whether nuncupative or mystic, must be drawn up in
writing, either by the testator himself, or by some other person under his
dictation.... The custom of making verbal statements, that is to say, resulting
From the mere deposition of witnesses, who were present when the testator made
known to them his will, without his having committed it, or caused it to be
committed to writing, is abrogated.... Nuncupative testaments may be made by
public act, or by act under private signature....

   OLOGRAPHIC TESTAMENT, a term used in the civil law. The olographic testament
is that which is written wholly by the testator himself. In order to be valid,
it must be entirely written, dated, and signed by the hand of the testator. It
is subject to no other form....

TESTAMENTARY. Belonging to a testament; as a testamentary gift; a testamentary
guardian, or one appointed by will or testament; letters testamentary, or a
writing under seal given by an officer lawfully authorized, granting power to
one named as executor to execute a last will or testament. 

TESTATE. One who dies having made a testament; a testator. This word is used in
this sense, in the act of the legislature of Pennsylvania, entitled "An act
relative to dower and for other purposes." ....

TESTATOR. One who has made a testament or will. 
   In general, all persons may be testators. But to this rule there are various
exceptions. First, persons who are deprived of understanding cannot make wills;
idiots, lunatics and infants, are among this class. Secondly, persons who have
understanding, but being under the power of others, cannot freely exercise their
will; and this the law presumes to be the case with a married woman, and,
therefore, she cannot make a will without the express consent of her husband to
the particular will. When a woman makes a will under some general agreement on
the part of the husband that she shall make a will, the instrument is not
properly a will, but a writing in the nature of a will or testament. Thirdly,
persons who are deprived of their free will cannot make a testament; as, a
person in duress....

TESTATRIX. A woman who makes a will or testament, is so called. 

TESTE, practice. The teste of a writ is the concluding clause, commencing with
the word witness, &c....

TESTES. Witnesses. 

TO TESTIFY. To give evidence according to law; the examination of a witness who
declares his knowledge of facts. 

TESTIMONIAL PROOF, civ. law. This word is used in the same sense as we use parol
evidence, and, in contradistinction to literal proof, which is written evidence. 

TESTIMONY, evidence. The statement made by a witness under oath or
affirmation....

TESTMOIGNE. This is an old and barbarous French word, signifying in the old
books, evidence....

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