Blackstone's definition of a will, "the legal declaration of a man's intentions, which he wills to be performed after his death," is derived from that of the old Roman writers; and he says it is called a "will" in England because "its efficacy depends on its declaring the testator's intention." (2 Bl. Com. 500.)

The word "will" in its popular meaning, now includes the disposition of both real and personal property, though in its technical and historical sense, it designated an instrument disposing of realty only.*

which, in its own nature, is ambulatory and revocable during his life. It is this ambulatory quality which forms the characteristic of wills; for, though a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, yet the postponement is in such case produced by the express terms, and does not result from the nature of the instrument." (McDaniel v. Johns, 45 Miss. 632; Jarman on Wills, I, 16.)

Will. "The formal instrument by which a person may make disposal of his property, to take effect at his death."-Abbott's L. Dict.

"A will, or last will and testament, is a solemn act or instrument whereby a person declares his mind and intention as to the disposal of his lands, goods or effects, and what he would have done after his death."-Co. Litt. II, Ch. 10. "And the common law calls that a will where lands or tenements are given ; and where it concerns goods and chattels alone, it is termed a testament."-Ibid.

“A will is a legal declaration of a person's intentions, to take effect after his death. The essential difference between a will and any other instrument or provision contingent upon death is that a will has no effect whatever until death, and may be freely revoked meanwhile; but a deed which may create or convey an estate in the event of death must take effect as binding

A person making a will is called the "testator" when a man; and the "testatrix" when a woman. One who dies leaving a will disposing of his property is said to die "testate," if without a will "intestate."

The granting words usually employed in a will are: -"give," "devise," and "bequeath;" of these the word "give" is the most comprehensive and may be used in reference to the transfer of any sort of property.

"Devise" is appropriately used when the gift is of real property, and "bequeath" when the will is of personal property. Likewise the word "devise," when used as a noun, signifies, when correctly used, a gift of realty, and "bequest" a gift of personalty.

"Legacy" is a word used to designate the gift of a sum of money. However, the technical, or real meaning of these words, is not so strict but that a gift will prevail, although the testator does not use them correctly. Thus a "bequest" may include both realty and personalty. (Evans v. Prince, 118 Ill. 593.) And a

the grantor in his lifetime. In English law the word will was originally used only of a disposition of real property to take effect after death; the word testament being then used, as in the Roman and civil law, of a disposition of personal property; hence the phrase, now redundant, last will and testament. In modern usage the term will does not necessarily imply an actual disposition of property; for, an instrument, executed with the formalities required by law, in which the testator merely appoints a guardian for his child, or merely nominates an executor, leaving the assets to be distributed by the executor among those who would take by law, is a will." (Cent. Dict., "Will.")

"devise" will prevail, although miscalled a "bequest." (In re White, 125 N. Y. 544.)

The word "testator" is the common designation of a person making either a will or testament; while "devisor" is the correct name for one who makes a will, but the term is little used.

"Devisee" is the proper and legal word used to denote one to whom realty passes by will; while “legatee" is properly used in naming one to whom personalty passes by will. These words, however, are frequently interchanged in their usage.

Sec. 925. SAME SUBJECT-WRITTEN AND UNWRITTEN WILLS.-Wills are of two kinds. 1. Written. 2. Unwritten, or "nuncupative."

A written will, as the name suggests, is one in writing; when such a will is entirely written by the testator himself it is called a "holograph," spelled also "olograph." These holographic wills are made valid by statute in some of the States without the formalities of attestation required of other wills.*

Unwritten, or "nuncupative" wills are usually valid only where the testator was overtaken by sudden illness and had not time to make a written will. By statute in the various States, and in England, the power to make a nuncupative will is quite generally restricted to soldiers in service and sailors upon a voyage, who are only allowed to dispose of personal estate in this manner, and that usually only to the extent

*Jarman on Wills (5th Am. Ed.), Vol. 3, 767 n.

of a few hundred dollars. The reason being the great hazards attending the correct reporting of wills so made.†

Sec. 926. SAME SUBJECT-CODICIL DEFINED.-A "codicil" is a supplement, or addition to a will, made after the will and designed to alter or add to it. It may or may not be a separate instrument.*

Sec. 927. SAME SUBJECT-A WILL DISTINGUISHED FROM A GIFT.-A will differs from a gift in this respect; it is not intended to operate or take effect until the death of the testator, no title of any kind vests in those who take under it until that time, and it is subject to revocation at any time before the testator's death. A gift, on the other hand, must take effect in the present.

Gifts are of two kinds. 1. Gifts "inter vivos." 2. Gifts "causa mortis."

By a gift "inter vivos," that is, between the living, is meant a gift in the ordinary sense of the word; while gifts "causa mortis," are those made in contemplation of immediate death, and which become invalid if the person making the gift recovers. In either case, however, to make a gift valid a present title must vest in the donee.

†Prince v. Hazleton, 20 Johns. 502; Statute I, Vic. c. 26, Secs. 9-12; Cooley's Blackstone, II, 501 n; see Sec. 964, post. *"Codicil, a supplement or addition to a will. It may change the dispositions of the will, or even revoke some of them, but does not revoke the entire will. The term codicil implies that the will, as modified by the codicil, stands."-Abbott's Law

To constitute a valid "donatio mortis causa," it is not only essential that delivery to the donee shall be complete during the donor's life, but the donee must also take and retain possession until after the donor's death. Then in case the donor dies, the gift becomes complete, if he recovers, the title reverts to him.*

Sec. 928. AUTHORITIES ON THE LAW OF WILLS.-Among many books and treatises on the Law of Wills are the following: "A Treatise on

Wills," by Thomas Jarman, an English writer, in three volumes, which has reached its sixth American edition. This is a very valuable and exhaustive work; Redfield's Law of Wills, is an American work in three volumes, by Isaac F. Redfield, the well-known author of the Law of Railways, which has reached its fourth edition. Other

*Appeal of Walsh, 122 Pa. St. 177; s. c. 9 Am. St. Rep. 83; Dunbar v. Dunbar, 6 Am. St. Rep. 166.

"Donatio mortis causa."-"A gift in expectation of death, a gift of personal property made by a person in contemplation of his own death by delivery of the property to another to keep as his own in case of the donor's decease. The subject of such a gift can be personal property only; and, to constitute a valid donatio mortis causa, it must be made in actual peril of the death, and to take effect only in case of the death of the donor, and there must be an actual delivery of the property, or for the use of the donee, if such delivery can be made, according to the manner in which it is capable of being delivered. The gift is conditional, dependent upon the contingency of expected death, and is revocable during the life of the donor, therein differing from a gift inter vivos. It differs from a legacy in that it does not require any proceeding in the court of probate, or any assent or action on the part of the executor to perfect the title of the donee."-Abbott's Law Dict.