Definition
Testamento is a Spanish-law term, derived from the Latin testamentum, meaning a testament or will — a formal declaration by which a person disposes of property to take effect upon death. The term appears in Spanish civil law and in legal sources governing territories historically under Spanish jurisdiction.
Two principal forms are recognized in Spanish law:
1. Testamento abierto: An open testament, made by oral declaration (vivâ voce) before witnesses or a notary. The testator's wishes are stated aloud and recorded openly, without concealment.
2. Testamento cerrado: A closed or secret testament, prepared in writing and sealed so that its contents remain unknown until the testator's death or incapacity. The existence of the document is acknowledged, but its contents are not disclosed during the testator's lifetime.
Common Confusion
Testamento should not be conflated with the broader English term "will," which in Anglo-American law traditionally applied to devises of real property, while "testament" applied to bequests of personal property. Spanish civil law, following Roman law principles, did not maintain this real/personal distinction with the same rigor. Burrill's notes that some authorities, including Swinburne and Cruise's Digest, drew an express distinction between testament and devise; researchers working in Spanish-law jurisdictions should not assume that the Anglo-American will/testament division maps cleanly onto the civil-law testamento concept.
Recognized Forms
/SUBTYPES
Testamento abierto — Open testament. Dictated orally before the required witnesses or a notary; its contents are a matter of record at the time of execution.
Testamento cerrado — Closed testament. Executed in writing, sealed, and delivered to a notary or deposited in a designated place; contents remain secret until opened after the testator's death or incapacity.
Why It Matters in Research
Researchers working with Spanish colonial records, land grant archives, or probate materials from territories once under Spanish rule — including Florida, Louisiana, California, Texas, New Mexico, and other former Spanish possessions — will encounter testamento and its subtypes in original-language documents and in English-language legal commentary translating Spanish civil law. Several navigational considerations apply:
First, the open/closed distinction is not merely formal. It has evidentiary consequences: a testamento abierto was executed in the presence of witnesses who could testify to its contents, while a testamento cerrado's validity depended on proper sealing and deposit formalities. Disputes in historical records often turn on whether the correct formal requirements for each type were observed.
Second, the term appears in secondary materials as both a standalone entry and embedded in discussions of Spanish succession law. Burrill's, for instance, cites Schmidt's Civil Law for the open/closed distinction and references Cruise's Digest for the broader testament/devise distinction. Researchers should check both the Spanish-law and the comparative civil-law sections of historical treatises rather than limiting searches to probate or wills indexes.
Third, when Spanish-law territories transitioned to American governance, courts frequently had to apply Spanish testamentary rules to instruments executed before the transfer of sovereignty. Opinions from Louisiana, California, and Florida courts in the nineteenth century regularly grapple with whether a testamento met the formal requirements of Spanish law at execution, independent of whether it would have been valid under American law. Searching under the English translations ("open will," "closed will," "sealed will") in addition to the Spanish terms will recover more of this case law.
Fourth, do not assume that the Latin testamentum entries in a historical law dictionary will fully cover the Spanish-law usage. The civil-law tradition preserved and elaborated on Roman forms, but Spanish practice introduced local variations that Burrill's and similar English-language dictionaries treat only briefly.
Historical Dictionary Support
Burrill's Law Dictionary provides the primary English-language historical treatment of this term. The entry is brief but structurally useful: it supplies the derivation from Latin, defines both the abierto and cerrado forms with citations to Schmidt's Civil Law and Cruise's Digest, and flags the doctrinal tension around the testament/devise distinction noted by Swinburne.
Burrill's entry trails off mid-sentence into the TESTAMENTUM entry, suggesting the editorial treatment of Spanish-law terms was compressed relative to the fuller Latin and English entries. This is a known limitation of nineteenth-century Anglo-American law dictionaries: Spanish civil law received less systematic coverage, and researchers should not treat Burrill's as exhaustive for this body of law. Schmidt's Civil Law (cited in the entry) and contemporary Spanish legal codes provide the more authoritative substantive treatment.
No meaningful divergence among historical dictionary sources can be assessed here, as Burrill's is the only dictionary source available for this entry.
Jurisdictional Note
The term is native to Spanish civil law and carries legal significance primarily in jurisdictions with Spanish colonial legal heritage. In the United States, this includes Louisiana (civil law tradition), and former Spanish territories in the Southwest and Florida, where Spanish testamentary formalities may govern instruments executed before American annexation. Modern practitioners in these states should consult state-specific succession law, which may have codified, displaced, or modified the underlying Spanish forms.
Encyclopedia Cross-Reference
Law Mind Encyclopedia — Wills and Testaments
Law Mind Encyclopedia — Spanish Colonial Law
Law Mind Encyclopedia — Civil Law Succession