NOTES OF THE AMERICAN EDITOR TO CHAPTER XXXII.

(89) Persons obliged by law to die intestate, page 496. These prohibitions, as Blackstone calls them, are in our American law almost entirely done away, or reduced to the single case of want of sufficient discretion, by infancy or want of reason. And in one respect at least the last prohibition has been removed in one of the cases mentioned by Blackstone, not so much by a change in the law as by the benefits of science. No court would now hold that "persons born deaf, dumb, and blind. . . . are incapable of having animum testandi, and their testaments therefore are void" (p. 497), though I am not aware that the point has actually been decided in any of the instances, beginning with that of Laura Bridgman, in which the existence of reason and the possibility of intelligent communication with others have been so signally shown.

(90) Such subsequent marriage is esteemed a revocation in law, and entirely vacates the will, page 499.

That the will of a woman should be revoked by her marriage, after which the common law left her no freedom to change it or make any disposition of her property whatever, is based on a solid reason: which reason ceases, when she is allowed to give, devise, or dispose of her property in any way during coverture, as she now is in nearly all the states, by the married women's acts. But whether the rule ceases with the reason of it is a question upon which American courts have formed contrary opinions. Some hold the common-law rule still in force, and the will revoked by her marriage. (Swan v. Hammond, 135 Mass. 45; 52 Am. Rep. 255; Blodgett v. Moore, 141 Mass. 75; Brown v. Clark, 77 N. Y. 369.)

Yet even in such states that rule is held not applicable to a case where an ante-nuptial agreement preserved to her the ability to make a will during coverture

(Osgood v. Bliss, 141 Mass. 474; 55 Am. Rep. 488), while other courts hold that no such distinction is of any weight. (Young's Appeal, 39 Pa. St. 115.)

In others the common-law rule is regarded as no longer in force, since the reason of it has ceased. (Will of Ward, 70 Wis. 251; 5 Am. St. Rep. 174; In re Tuller's Will, 79 Ill. 99; 22 Am. Rep. 164; Noyes v. Southworth, 55 Mich. 174; 54 Am. Rep. 159; Webb v. Jones, 36 N. J. Eq. 163; Fellows v. Allen, 60 N. H. 439; 49 Am. Rep. 329.) See cases cited in note to Young's Appeal, 39 Pa. St. 115; 80 Am. Dec. 516-518, where the statutory provisions of various states on this point are given. They may be found also in Stimson's Am. Stat. Law, ?? 2676, 6460, and in Boone on Wills, 22 64, 94.

(91) Nuncupative wills and codicils, page 500. Oral or nuncupative wills are restricted by statutes in the United States even more narrowly than is here stated. In few states, if in any, will they pass real estate and the amount of personalty that may be bequeathed is usually limited, except in the case of soldiers or sailors in actual employment. The most important additional requisite not mentioned by Blackstone is that the substance of the nuncupative will shall be reduced to writing, and signed by the witnesses who heard it, within a brief time-three to six days-after the testator's decease. (See the various statutory rules collected in Stimson's Am. Stat. Law, ?? 2702-2705; Boone's Law of Wills, 225-14.)

(92) A good testament of the personal estate, page 502. Holographic wills, "written by the testator's own hand" and signed by him, are valid by law in a number of states (Stimson's Am. Stat. Law, ? 2645; Boone on Wills, 16), both as to real and personal estate. But the further informalities allowed by the text would not be admitted to probate as to either, in the United States.

It seems to be the better opinion, and that of the majority of decisions, that a written paper drawn up by the testator or under his direction, but inadmissible as a holographic will, cannot be proved as a nuncupative will. (Stamper v. Hooks, 22 Ga. 603; 68 Am. Dec. 511; Hebden's Will, 20 N. J. Eq. 478.) As to all wills but holographic, and in states where holographic wills are not allowed, the requirement that a will be duly witnessed is now as applicable to those of personalty as to those devising land.

(93) The principal points of their office and duty, page 507.

In every state of the Union the law regulating the disposal of decedents' estates has been the subject f more minute statutory provisions than other parts of the private law. To refer to all these, wherever they modify anything said by Blackstone in this condensed statement of the common law, would be a great task, and add to the bulk of the volume a mass of references, only the least fraction of which would be useful to any one reader. Moreover, any question of real importance affected by a statutory change must be answered, not only from the section or clause that makes it, but from a consideration of the purpose and spirit of all the changes made in that state; and therefore such limited references would be likely to mislead as often as they helped.

The same criticism cannot be made of the very full notes that most previous editors have added, pointing out the important modifications of the English law since Blackstone's time; most of which have found more or less acceptance here, and have therefore been copied, literally or in substance, in the American editions. Perhaps it will be thought a defect in this edition that I have omitted them here and elsewhere; but my own experience with students convinced me 2 BLACKST. - 68.

long ago that such notes drew their attention away from the text, and were a serious obstacle to that careful continuous reading and digestion of Blackstone's system which it deserves: which, in fact, is the chief object for which the book is put into their hands. The addition of this or that recent rule or decision to their memory is dearly bought at the cost of a clear view of the whole common-law basis of such rules.

APPENDIX.

No. I.

VETUS CARTA FEOFFAMENTI.

Sciant presentes et futuri, quod ego Willielmus, filius Willielmi de Segenho, dedi, concessi,* et hac presenti carta mea confirmavi, Johanni quondam filio Johannis de Saleford, pro quadam summa pecunie quam michi dedit pre manibus, unam acram terre mee arabilis, jacentem in campo de Saleford, juxta terram quondam Richardi de la Mere: Habendam et tenendam totam predictam acram terre, cum omnibus ejus pertinentiis, prefato Johanni, et heredibus suis, et suis assignatis, de capitalibus dominis feodi: Reddendo et faciendo annuatim eisdem dominis capitalibus servitia indo debita et consueta: Et ego predictus Willielmus, et heredes mei, et mei assignati, totam predictam acram terre, cum omnibus suis pertinentiis, predicto Johanni de Saleford, et heredibus suis, et suis assignatis, contra omnes gentes warrantizabimus in perpetuum. In cujus rei testimonium huic presenti carte sigillum meum apposui: Hijs testibus, Nigello de Saleford, Johanne de Seybroke, Radulpho clerico de Saleford, Johanne molendario de eadem villa, et aliis. Data apud Saleford die Veneris proximo ante festum sancte Margarete virginis, anno regni regis Edwardi filii regis Edwardi sexto.

(L. S.)

Memorandum, quod die et anno infrascriptis plena et pacifica seisina acre infraspecificate, cum pertinentiis, data et deliberata fuit per infranominatum Willielmum de Segenho infranominato Johanni de Saleford, in propriis personis suis, secundum tenorem et effectum carte infrascripte, in presentia Nigelli de Saleford, Johannis de Seybroke, et aliorum.

*Cited, 4 Mason, 70.