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longer the administration in their own hands, or those of their immediate dependents: [496] and therefore the statute 31 Edw. III. c. 11. provides, that, in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods; which administrators are put upon the same footing, with regard to suits and to accounting, as executors appointed by will.* This is the original of administrators, as they at present stand; who are only the officers of the ordinary, appointed by him in pursuance of this statute, which singles out the next and most lawful friend of the intestate; who is interpreted " to be the next of blood that is under no legal disabilities. The statute 21 Hen. VIII. c. 5. enlarges a little more the power of the ecclesiastical judge; and permits him to grant administration either to the widow, or the next of kin, or to both of them, at his own discretion; ‡ and, where two or more persons are in the same degree of kindred, gives the ordinary his election to accept whichever he pleases.


Upon this footing stands the general law of administrations at this day. I shall, in the farther progress of this chapter, mention a few more particulars, with regard to who may, and who may not, be administrator; and what he is bound to do when he has taken this charge upon him: what has been hitherto remarked only serving to shew the original and gradual progress of testaments and administrations: in what manner the latter was first of all vested in the bishops by the royal indulgence; and how it was afterwards, by authority of parliament, taken from them in effect, by obliging them to commit all their power to particular persons nominated expressly by the law.

n 9 Rep. 39.

3 Third edition misprints, "dispute."

*Cited, 2 Brev. 312.

+ Cited, 2 Fla. 204; 41 Pa. St. 177.

- Quoted, 1 Const. S. C. 269. Cited, Charlt. 206; 1 Yerg. 419.

I proceed now, secondly, to inquire who may, or may not make a testament; or what persons are absolutely obliged by law to die intestate. [See note 89, page 779.] And this law is entirely prohibitory; for, regularly, every person hath full power and liberty to make a will, that is not under special prohibition by law or custom which prohibitions are principally upon three [497] accounts; for want of sufficient discretion; for want of sufficient liberty and free will; and on account of their criminal conduct.

1. *In the first species are to be reckoned infants, under the age of fourteen if males, and twelve if females; which is the rule of the civil For, though some of our common lawyers have held that an infant of any age (even four years old) might make a testament, and others have denied that under eighteen he is capable," yet as the ecclesiastical court is the judge of every testator's capacity, this case must be governed by the rules of the ecclesiastical law. So that no objection can be admitted to the will of an infant of fourteen, merely for want of age: but, if the testator was not of sufficient discretion, whether at the age of fourteen or four and twenty, that will overthrow his testament.‡ Mad-men, or otherwise non compotes, idiots or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted with drunkenness, all these are incapable, by reason of mental disability, to make any will so long as such disability lasts.? To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have alo Godolph. Orph. Leg. p. 1. c. 7.

p Godolph. p. 1. c. 8. Wentw. 212. 2 Vern. 104. 469. Gilb. Rep. 74. q Perkins. 503.

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1-2 Quoted, 26 Wend. 299. Cited, 22 Wend. 537.

ways wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void.*

2. Such persons, as are intestable for want of liberty or freedom of will, are by the civil law of various kinds; as prisoners, captives, and the like. But the law of England does not make such persons absolutely intestable; but only leaves it to the discretion of the court to judge, upon the consideration of their particular circumstances of duress, whether or no such persons could be supposed to have liberum animum testandi. And, with regard to feme-coverts, our laws differ still more materially from the civil. Among the Romans there was no distinction; a married woman was as capable of bequeathing as a feme-sole. But with us a [498] married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 & 35 Hen. VIII. c. 5. but also she is incapable of making a testament of chattels, without the licence of her husband. For all her personal chattels are absolutely his own; and he may dispose of her chattels real, or shall have them to himself if he survives her: it would be therefore extremely inconsistent, to give her a power of defeating that provision of the law, by bequeathing those chattels to another. Yet by her husband's licence she may make a testament;" and the husband, upon marriage, frequently covenants with her friends to allow her that licence: but such licence is more properly his assent; for, unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand hath given her permission to make a will. Yet it shall be s Godolph. p. 1. c. 9.

t Ff. 31. 1. 77.

v 4 Rep. 51.

- Quoted, 1 Spear, 106.

u Dr. & St. d. 1. c. 7.

w Bro. Abr. tit. devise. 34. Stra. 891.

4 Previously, "want."

tt Quoted, 16 N. H. 199. Cited, 25 N. H. 354; 57 Am. Dec. 325; 4 Cold. 47.

sufficient to repel the husband from his general right of administering his wife's effects; and administration shall be granted to her appointee, with such testamentary paper annexed. So that in reality the woman makes no will at all, but only something like a will;y operating in the nature of an appointment,* the execution of which the husband by his bond, agreement, or covenant, is bound to allow. A distinction similar to which, we meet with in the civil law. For, though a son who was in potestate parentis could not by any means make a formal and legal testament, even though his father permitted it, yet he might, with the like permission of his father, make what was called a donatio mortis causa. The queen consort is an exception to this general rule, for she may dispose of her chattels by will, without the consent of her lord: and any feme-covert may make her will of goods, which are in her possession in auter droit, as executrix or administratix; for these can never be the property of the husband: and, if she has any pin-money or separate maintenance, it is said she may dispose of her savings thereout by [499] testament, without the control of her husband. But, if a feme-sole makes her will, and afterwards marries, such subsequent marriage is esteemed a revocation in law, and entirely vacates the will. [See note 90, page 779.]

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3. Persons incapable of making testaments, on acx The king v. Bettesworth. T. 13 Geo. II. B. R.

y Cro. Car. 376. 1 Mod. 211.

z Ff. 28. 1. 6.

a Ff. 39. 6. 25.

b Co. Litt. 133.

c Godolph. 1. 10.

d Prec. Chan. 44.

e 4 Rep. 60. 2 P. Wms. 624.

4 Previously, "intirely."

**Quoted, 56 Ga. 348. Cited, 25 N. H. 353; 57 Am. Dec. 834.

+ Cited, 25 N. H. 353; 57 Am. Dec. 334.

# Cited, 25 N. H. 354; 57 Am. Dec. 335.

count of their criminal conduct, are in the first place all traitors and felons, from the time of conviction; for then their goods and chattels are no longer at their own disposal, but forfeited to the king. Neither can a felo de se make a will of goods and chattels, for they are forfeited by the act and manner of his death; but he may make a devise of his lands, for they are not subjected to any forfeiture. Outlaws also, though it be but for debt, are incapable of making a will, so long as the outlawry subsists, for their goods and chattels are forfeited during that time. As for persons guilty of other crimes, short of felony, who are by the civil law precluded from making testaments (as usurers, libellers, and others of a worse stamp), by the common law their testaments may be good. And in general the rule is, and has been so at least ever since Glanvil's time, quod libera sit cujuscunque ultima voluntas.



Let us next, thirdly, consider what this last will and testament is, which almost every one is thus at liberty to make; or, what are the nature and incidents of a testament. Testaments both Justinian and sir Edward Coke agree to be so called, because they are testatio mentis: an etymon, which seems to favour too much of the conceit; it being plainly a substantive derived from the verb testari, in like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology; "voluntatis nostræ justa sententia de eo, quod quis post mortem suam fieri velit:" which may be thus rendered into English, *"the legal declaration of a man's intentions, [500] which he wills to be performed after his death." It is called sententia to

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**Quoted, 6 Peters, 75; 3 Ga. 573; 112 Ill. 133; 54 Am. Rep. 217; 16 N. Y. 49; 90 N. C. 595; 101 Pa. St. 163; 2 Hen. & M. 510. Cited, 2 Ga. 50.

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