(522) This return is denominated a terrier. 2 Phillips on Evid. 119. See Anst. 300305. 15 East, 641. (523) take effect after the death of the person "these words [testament and will, or last making it.* Id. ibid. This is considered will,] are synonyma, and are, as it seems, the proper sense of the term, in some of promiscuously used in our law." Shep. the old books. Co. Litt. 111 a. See infra. A formal declaration or expression of a person's will, as to the disposition he would have made of his property after his death. This is a translation of the celebrated definition of the civil law, -Testamentum est voluntatis nostræ justa sententia, de eo quod quis post mortem suam fieri velit. Dig. 28.1.1. Blackstone's translation of this Touch. 399. And Littleton himself, in the very section commented on by Lord Coke, applies the word testament to a disposition of lands. Home poit deviser per son testament ses terres et tenements. Litt. sect. 167. In modern law, the terms will and testament, are generally used without distinction, to express the instrument by which a man makes disposition of his property after his death. 1 Steph. Com. definition is, "the legal declaration of a 544. Where the instrument is more forman's intentions, which he wills to be permally described, both terms are made use formed after his death." 2 Bl. Com. 499. of, and it is called a last will and testament. For other translations, see Testamentum. Webster's definition presents essentially the same idea,-" a solemn authentic instru- ment in writing, by which a person declares his will as to the disposal of his estate and effects after his death." *** A testament has been distinguished from a will, both by common lawyers and civilians, but on different grounds. Swinburne, and other civilians, while they admit that, in a general sense, the words are synonymous, contend that, in a strict and proper sense, a testament was that kind of a will in which an executor was named, and that the appointment of an executor was of the essence of a testament, without which a will was no proper testament. Swinburne on Wills, part 1, sect. 1, 3. See Finch's Law, b. 2, ch. 15. This idea was derived from the testamentum of the civil law, an essential requisite of which was the appointment of an heir, (hæres,) to take the testator's property. Inst. 2. 23. 2. A different distinction was made between a testament and a will by the old common lawyers. Lord Coke observes that, "in law, most commonly ultima voluntas in scriptis, (a last will in writings,) is used where lands or tenements are devised, and testamentum, (testament,) where it concerneth chattels." Co. Litt. 111 a. Mr. Cruise notices both these distinctions, and See 4 Kent's Com. 501. This conjoint use of both terms may be traced back as far as the old writ de tenementis legatis in the Register, in which the phrase, in testamento suo, in ultima voluntate sua, occurs twice. Reg. Orig. 244 b. The derivation of testamentum from testari and mens, formally adopted in the Institutes of Justinian, will be considered under Testamentum. (524) ever, as might be expected, have strongly sustained the derivation, though upon different grounds. Swinburne defends it as being not intended as a precise etymology of the word, but "a certain allusion rather of the voice only," meaning probably that it was an explanation drawn from the casual coincidence between the sound or form of the word and its essential meaning. Swinburne on Wills, part 1, sect. 1. Other civilians have treated it as being properly a mere definition, -testatio mentis, a solemn declaration of the mind or intention. That it was intended, however, as an etymon in the proper sense, is clear from the text of the Institutes. Calvin concedes this, and boldly justifies it to its full extent, claiming for jurisconsults the license or right of framing their derivations according to the supposed nature of things, without regard to the proprieties of language or the niceties of grammar. (!) Calv. Lex. voc. Testamentum. fieri velit. A testament is the formal ex-tum, salsamentum, vestimentum and others. pression of one's will, respecting what one A. Gell. Noct. Att. vi. 12. Laurent. Vall. would have done after his death. Dig. Elegant. lib. 6, c. 36. The civilians, how28. 1. 1. See Id. 29. 3. 2. 1. Translated, in the more antiquated language of Swinburne, "the just sentence of our will, touching that we would have done after our death." Swinburne on Wills, part 1, sect. 2. This has been adopted as the definition of a testament, in 1 Williams on Executors, 6. And see Taylor's Civ. Law, 531, 532, 534. Blackstone translates the same definition, "the legal declaration of a man's intentions, which he wills to be performed after his death." 2 Bl. Com. 499. In the Termes de la Ley, it is rendered, "the true declaration of our last will, in that we would to be done after our death." In Sheppard's Touchstone, - "the full and complete declaration of a man's mind, or last will of that he would have to be done after his death." Shep. Touch. 399. It will be seen that in the original definition, there is no express reference to property, as the subject of the testamentary disposition. Mr. Preston, in his edition of Sheppard, has supplied this idea, by adding to the translation of that author, the clause, [by way of disposition of his property.] Swinburne goes largely into detail in commenting on this definition, dwelling especially on the force of the words justa and sententia; but the essence of his observations is much more forcibly and elegantly given by Blackstone. *** The celebrated etymology of testamentum in the Institutes, may be noticed under this head. In the principium of the tenth title of the second book, Justinian briefly but emphatically declares that Testamentum ex eo appellatur, quod testatio mentis sit; a testament is so called, because it is a testifying of the mind. This Lord Coke agrees with Justinian in the composition of the word testament, it being entirely to his taste in matters of derivation, as evidenced in his analysis of sacramentum, and other words of similar form. Co. Litt. 322 b. 3 Inst. 165. Blackstone, however, pronounces it to be "an etymon which seems to savour too much of the conceit," adding, very justly, that "the definition of the old Roman lawyers is much better than their etymology." 2 Bl. Com. 499. (525) known a thing before witnesses. Calv. to the date of other instruments, and is Lex. To make a will. Id. One