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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.

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 (3). And this law (o) is entirely prohibitory; for, regularly, every person hath full power and liberty to make a will, that is not under some special prohibition by law or custom: which prohibitions are principally upon three *accounts: for want of sufficient discretion; for want [*497] 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 femalest; which is the rule of the civil law (p). For, though some of our common lawyers have held that an infant of any age (even four years old) might make a testament (q), and others have denied that under eighteen he is capable (r), 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. Madmen, or otherwise non compotes, idiots or natural fools (4), persons grown childish by reason of old age or distemper (5), such as have their senses besotted with drunkenness (6)-all these are incapable, by reason of mental dis

(0) Godolph. Orph. Leg. p. 1, с. 7.

(p) Godolph. p. 1, c. 8. Wentw. 212. 2 Vern. 104. 469. Gilb. Rep. 74.

(3) In pursuing this inquiry, our author appears to have taken Swinburne for his guide; the second part of whose Treatise on Wills and Testaments he has closely followed.

(4) See Swinburne, pt. 2, sect. 4, an idiot, according to juridical definition, is one who, from his nativity, by a perpetual infirmity, is non compos mentis. (Co. Litt. 246 a).

(5) See Swinburne, pt. 2, sect. 5. Old age alone does not justify a presumption of the party's incapacity; (Lewis v. Pead, 1 Ves. jun. 19); but, when accompanied by great infirmity, it will be a circumstance of weight in estimating the validity of any transaction; (Griffiths v. Robins, 3 Mad. 192); for, that hy

+ In New-York males must be 18, females 16 years of age. 2 R. S. 60, § 21.

Mr. Christian observes, that "this has been thought an errour of the press in Perkins, and that four by mistake was printed for fourteen." The correction was first made by Swinburne, who, in a note to pt. 2, sect. 2, of his Treatise, speaks of the passage in Perkins as "impressio vitiosa, literá (x) omissá, nam quod sic scribitur iiij. scribi debuit xiiij."

(q) Perkins, 503.
(r) Co. Litt. 89.

pothetical disability which is always supposed to exist during infancy, may really subsist when the party is of age, and even a much greater degree of incapacity, though the case be not one of insanity, or of lunacy, strictly speaking. (Sherwood v. Saunderson, 19 Ves. 283. Ridgway v. Darwin, 8 Ves. 67. Ex parte Cranmer, 12 Ves. 449).

(6) See Swinburne, pt. 2, sect. 6. A commission of lunacy has issued against a party who, when he could be kept sober, was a very sensible man; but whose constant habits were those of intoxication. (Anonym. cited in 8 Ves. 66). And in the case of Rez v. Wright, (2 Burr. 1099), a rule was made upon the de

"See this subject learnedly investigated by Mr. Hargrave, who concludes with the learned Judge, that a will of personal estate may be made by a male at the age of fourteen, and by a female at the age of twelve, and not sooner. (Harg. Co. Litt. 90)."

See Swinburne, pt. 2, sect. 3. 1 Phillim. 100.88. 9 Ves. 610. 3 Br. 444. 11 Ves. 11. 1 Adams, 284.

ability, to make any will so long as such disability lastst. To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void (7).

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 (s) (8). 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 person could be supposed to have liberum animum testandi. And, with regard to feme-coverts, our law differs 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 (t). But [*498] with us a married woman is not only utterly incapable of de

vising 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 license of her husband. For all her personal chattels are absolutely his; 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 (v). Yet by her husband's license she may make a testament (u); and the husband, upon marriage, frequently covenants with her friends to allow her that license: but such license 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 (w). Yet it shall be 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 (x). 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 (z), yet he might, with the like permission of his father, make what was called a donatio mortis causa (a). The queen consort is an exception to this general rule, for she

(s) Godolph. p. 1, с. 9.

(t) Ff. 31. 1. 77.

(v) 4 Rep. 51.

(u) Dr. & St. d. 1, c. 7.

(w) Bro. Abr. tit. Devise, 34. Stra. 891.

fendants, to shew cause why a criminal information should not be exhibited against them, for the misdemeanor of using artifices to obtain a will from a woman addicted to liquor,

† "But, if a person of sound mind makes his will, this will is not revoked nor affected by his subsequent insanity. (4) Co. 61)." For what the law requires is, that a testator should be of capacity at the time he makes his will. (Swinb. pt. 2, sect. 3). Therefore, if a child, before he has reached the age prescribed by law, makes a written disposition of his ef

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when she was under very improper circumstances of mind to make one.

(7) See Swinburne, pt. 2, sect. 10 and 11. (8) See Swinburne, pt. 2, sect. 8.

fects, that disposition will be of no validity, though he should afterwards attain the age at which he might make a testament; unless Le then expressly confirms his previous testamentary disposition; which is, in fact, making a new will. (Swinb. pt. 2, sect. 2).

2 R. S. 60, § 21.

may dispose of her chattels by will, without the consent of her lord (b) : and any feme-covert may make her will of goods, which are in her possession in auter droit, as executrix or administratrix; for these can never be the property of the husband (c): and, if she has any pin-money or separate maintenance, it is said she may dispose of her savings thereout *by testament, without the control of her husband (d). [*499] 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 (e) (9).

3. Persons incapable of making testaments, on account 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 (10). 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 (f) (11). 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 (g) (12). 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 (h) (13). And in general the rule is, and has been so at least ever since Glanvil's time (i), 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 (j) and Sir Edward Coke (k) agree to be so called, because they are testatio mentis: an etymon which seems to savour 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 (1):" which may be thus rendered into English, "the legal declaration of a man's intentions, *which he wills to be performed after his death (14)." It is call- [*500] ed sententia, to denote the circumspection and prudence with which it is supposed to be made: it is voluntatis nostræ sententia, because its efficacy depends on its declaring the testator's intention, whence in England it is emphatically styled his will: it is justa sententia; that is,

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† No conviction, except upon an outlawry for treason, would have this effect in NewYork. 2 R. S. 701, § 22. VOL. I.

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drawn, attested, and published, with all due solemnities and forms of law: it is de eo, quod quis post mortem suam fieri velit, because a testament is of no force till after the death of the testator.

These testaments are divided into two sorts: written, and verbal or nuncupativet; of which the former is committed to writing, the latter depends merely upon oral evidence, being declared by the testator in extremis before a sufficient number of witnesses, and afterwards reduced to writing. A codicil (15), codicillus, a little book or writing, is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as part of, a testament; being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former dispositions of the testator (m). This may also be either written or nuncupative.

But, as nuncupative wills and codicils (which were formerly more in use than at present, when the art of writing is become more universal) are liable to great impositions, and may occasion many perjuries, the statute of frauds, 29 Car. II. c. 3, hath laid them under many restrictions; except when made by mariners at sea, and soldiers in actual service. As to all other persons, it enacts: 1. That no written will shall be revoked or altered by a subsequent nuncupative one, except the same be in the lifetime of the testator reduced to writing, and read over to him, and approved (16); and unless the same be proved to have been so done by the oaths of three witnesses at the least; who, by statute 4 & 5 Ann. c. 16, must be such as are admissible upon trials at common law. 2. That no nuncupative will shall in anywise be good, where the estate bequeathed exceeds 301., unless proved by three such witnesses, present at the making thereof, (the

Roman law requiring seven) (n), and unless they or some of them [*501] were specially required to bear witness thereto by the testator

himself; and unless it was made in his last sickness, in his own habitation or dwelling-house, or where he had been previously resident ten days at the least, except he be surprised with sickness on a journey, or from home, and dies without returning to his dwelling. 3. That no nuncupative will shall be proved by the witnesses after six months from the making, unless it were put in writing within six days. Nor shall it be proved till fourteen days after the death of the testator, nor till process hath first issued to call in the widow, or next of kin, to contest it, if they think proper. Thus hath the legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse (17); and is hardly ever heard of, but in the

(m) Godolph. p. 1, c. 1, § 3.

(15) See Swinburne, pt. 1, sect. 5. (16) But, if a legacy given by a written will has lapsed, or is void, quatenus the subject of such legacy, there is no written will, and a nuncupative codicil is quasi an original will for so much, not an alteration of that disposition which had previously become determined, or which was in its creation void. (Stonywell's case, T. Raym. 334). And the act which says that no written will shall be repealed or altered, by a nuncupative codicil,

† In New-York no nuncupative or unwritten will is good, even as to personal estate, unless made by a soldier in actual service, or by a sailor at sea. (2 R. S. 60, § 22). A will of personal estate must be executed in the

(n) Inst. 2. 10. 14.

does not prohibit the disposition, by such codicil, of that which is not disposed of by the written will.

(17) Nuncupative wills are not favourities with courts of probate, though, if duly proved, they are equally entitled to be pronounced for with written wills. Much more, however, is requisite to the due proof of a nuncupative will than of a written one, in several particalars. In the first place, the provisions of the statute of frauds must be strictly complied

same manner as a will of real estate, (id. 63, § 40:) and revoked in the same way. Id. 42). See ante, p. 376, note 8, as to the solemnities required.

only instance where favour ought to be shewn to it, when the testator is surprised by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, not any loose idle discourse in his illness; for he must require the by-standers to bear witness of such his intention: the will must be made at home, or among his family or friends, unless by unavoidable accidents; to prevent impositions from strangers: it must be in his last sickness; for, if he recovers, he may alter his dispositions, and has time to make a written will: it must not be proved at too long a distance from the testator's death, lest the words should escape the memory of the witnesses; nor yet too hastily and without notice, lest the family of the testator should be put to inconvenience, or surprised.

As to written wills, they need not any witness of their publicationt. I speak not here of devises of lands, which are quite of a different nature; being conveyances by statute (18), unknown to the feodal or common law, and not under the same jurisdiction as personal testaments. But a testament of chattels, written in the testator's own hand, though it has neither his name nor seal to it, nor witnesses present at its publication, is good; provided sufficient proof can be had that it is his hand-writing (o). And though *written in another man's hand, and never [*502] signed by the testator, yet, if proved to be according to his instruetions and approved by him, it hath been held a good testament of the personal estate (p). Yet it is the safer and more prudent way, and leaves less in the breast of the ecclesiastical judge, if it be signed or sealed by the testator, and published in the presence of witnesses: which last was always required in the time of Bracton (q); or, rather, he in this respect has implicitly copied the rule of the civil law.

No testament is of any effect till after the death of the testator. "Nam omne testamentum morte consummatum est: et voluntas testatoris est ambulatoria usque ad mortem (r) (19)." And therefore, if there be many testa

(o) Godolph. p. 1, c. 21. Gilb. Rep. 260. (p) Comyns, 452, 3, 4.

with, to entitle any nuncupative will to probate. Consequently, the absence of due proof of any one of these (that enjoining the rogatio testium, or calling upon persons to bear witness of the act, for instance, Bennet v. Jackson, 1 Phillim. 191. Parsons v. Miller, Ibid. 195) is fatal, at once, to a case of this species. But, added to this, and independent of the statute of frauds, the factum of a nuncupative will requires to be proved by evidence more strict and stringent than that of a written one, in every single particular. This is requisite in consideration of the facilities with which fraud in setting up nuncupative wills are obviously attended; facilities which absolutely require to be counteracted by courts insisting on the strictest proof as to the facta of such wills. The testamentary capacity of the deceased, and the animus testandi at the time of the alleged nuncupation, must appear by the clearest and most indisputable testimony. Above all, it must plainly result from the evidence, that the instrument propounded contains the true substance and import, at least, of the alleged nuncupation; and consequently that it embodies the deceased's real testa

(g) 1. 2, c. 26.
(r) Co. Litt. 1.

montary intentions. (Lemann v. Bonsall, 1 Addams, 389).

The statute of frauds is imperative, that a nuncupative will must be proved by the oaths of three witnesses; therefore, supposing no more than three witnesses were present at the making of such will, the death of any one of them, before such proof has been formally made, will render the nuncupative will void; however clear and unsuspected the evidence of the two surviving witnesses to the transaction may be (Phillips v. The Parish of St. Clement's Danes, 1 Eq. Ca. Ab. 404): though at law, the execution of a written will is usually proved by calling one of the subscribing witnesses; and notwithstanding it is the general rule of equity to examine all the subscribing witnesses, this rule does not apply when any of the witnesses are dead, or cannot be discovered, or brought within the jurisdiction.

(18) See, ante, p. 378. (19) This, Lord Loughborough observed, was the most general maxim he knew: (Matthews v. Warner, 4 Ves. 210): it is essential to every testamentary instrument, that it may

† Contrary rule in New-York. See note to p. 500.

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