and other courts, or to have their wills there proved, in case they made any disposition.(d) Afterwards, the crown, in favour of the church, invested the prelates with this branch of the prerogative: which was done, saith Perkins,(e) because it was intended by the law that spiritual men are of better conscience than laymen, and that they had more knowledge what things would conduce to the benefit of the soul of the deceased. The goods, therefore, of intestates were given to the ordinary by the crown; and he might seize them, and keep them without wasting, and also might give, aliene, or sell them at his will, and dispose of the money in pios usus: and, if he did otherwise, he broke the confidence which the law reposed in him.(f) So that, properly, the whole interest and power which were granted to the ordinary were only those of being the king's almoner within his diocese; in trust to distribute the intestate's goods in charity to the poor, or in such superstitious uses as the mistaken zeal of the times had denominated pious.(g) And, as he had thus the disposition of intestates' effects, the probate of wills of course followed: for it was thought just and natural, that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was effectually superseded thereby. *The goods of the intestate being thus vested in the ordinary upon the most solemn and conscientious trust, the reverend prelates were, [*495 therefore, not accountable to any, but to God and themselves, for their conduct.(h) But even in Fleta's time it was complained() "quod ordinarii, hujusmodi bona nomine ecclesiæ occupantes nullam vel saltem indebitam faciunt distributionem." And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of Pope Innocent IV.,(k) written about the year 1250; wherein he lays it down for established canon law that "in Britannia tertia pars bonorum decedentium ab intestato in opus ecclesiæ et pauperum dispensanda est." Thus, the popish clergy took to themselves(1) (under the name of the church and poor) the whole residue of the deceased's estate, after the partes rationabiles, or two-thirds, of the wife and children were deducted; without paying even his lawful debts, or other charges thereon. For which reason, it was enacted by the statute of Westm. 2,(m) that the ordinary shall be bound to pay the debts of the intestate so far as his goods will extend, in the same manner that executors were bound in case the deceased had left a will: a use more truly pious than any requiem, or mass for his soul. This was the first check given to that exorbitant power, which the law had intrusted with ordinaries. But, though they were now made liable to the creditors of the intestate for their just and lawful demands; yet the residuum, after payment of debts, remained still in their hands, to be applied to whatever purposes the conscience of the ordinary shall approve. The flagrant abuses of which power occasioned the legislature again to interpose, in order to prevent the ordinaries from keeping any longer the administration in their own hands, or those of their immediate *dependents: and therefore the statute 31 [*496 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(n) 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. (d) 9 Rep. 37. () 2486. (Pinch, Law, 173, 174. (2) Plowd. 277. (4) Ibid. (L. 2, c. 57, 8 10, (*) In Decretul, l. 5, t, 3, c. 42. () The proportion given to the priest and to other pious uses was different in different countries. In the arrh. deaconry of Richmond in Yorkshire this proportion was settled by a papal bulle, A.D. 1254, (Regist, honoris de Richm. 101,) and was observed till abolished by the statute 26 Hen VIII. o. 15. () 13 Edw, I. c. 19. Upon this footing stands the general law of administrations at this day. I shall, in the further 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 show 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. And this law(0) 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 *497] custom: which prohibitions are principally upon three *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 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, persons grown childish by reason of old age or distemper,3 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 always 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.(s) 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 (*) Godolph. Orph. Leg. p. 1, c. 7. (P) Godolph. p. 1, c. 8. Wentw. 212. 2 Vern. 104, 469. Gilb. Rep. 74. (4) Perkins, 503. 2 This has been thought an error of the press in Perkins, and that four by mistake was printed for fourteen. 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. 99.-CHRISTIAN. However, by the late Wills Act, statute 1 Vict. c. 26, 37, 34, it is enacted that no will made after the first day of January, 1838, by any person under the age of twenty-one years, shall be valid.-STEWART. See Swinburne, pt. 2, sect. 5. Old age alone does not justify a presumption of the party's incapacity, (Lewis vs. Pead, 1 Ves. Jr. 19;) but, when accompanied by great infirmity, it will be a circumstance of weight in estimating the validity of any transaction, (Griffiths vs. Robins, 3 Mad, 192;) for that hypothetical 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 vs. Saunderson, 19 Ves. 283. Ridgway vs. Darwin, 8 Ves. 67. Ex parte Cranmer, 12 Ves. 449,-CHITTY. *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 Rex vs. Wright, 2 Burr. 1099, a rule was made upon the defendants to show cause why a criminal information should not be exhibited against them for the misdemeanour of using artifices to obtain a will from a woman addicted to liquor, when she was under very improper circumstances of mind to make one.-CHITTY. 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 with us a *married woman is not only utterly incapable of devising [*498 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.(u) Yet by her husband's license she may make a testament:(v) 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 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 her 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) 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) [*499 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. 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)° 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) 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 () F. 31, 1, 77. (") 4 Rep. 51. (*) Dr. and St. d. 1, c. 7. (w) Bro. Abr. tit. Derise, 34. Stra. 891. (*) The King vs. Bettesworth, T. 13 Geo. II. B. R. (y) Cro. Car. 376. 1 Mod. 211. (*) Ff. 28, 1, 6. (a) Ff. 39, 6, 25. (e) 4 Rep. 60. 2 P. Wms. 624. (g) Fitz. Abr. tit. Descent, 16. 5 But in this case the will is of no effect, not from the incapacity of the testator, but because he has no goods to bequeath. And a similar observation applies to the other instances given by Blackstone,-that of a felo de se, whose goods and chattels are forfeited by the act and manner of his death, although he may make a devise of his lands, for they are not subjected to any forfeiture. Plowd. 261. Thus, also, outlaws, though it be but for debt, "are said to be" incapable of making a will; for their goods and chattels are forfeited during the time (Fitz. Abr. tit. Descent, 16) the outlawry subsists.-KERR. "Lands never were forfeited without an attainder by course of law, (3 Inst. 55;) and now no attainder, except for high treason, petit treason, or murder, or abetting those crimes, extends to the disinherison of any heir, nor to the prejudice of the right or title of any other persons than the offenders. Stat. 54 Geo. III. c. 145.-CHITTY. of a worse stamp,) by the common law their testaments may be good.(h) 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 *500] after his death." It is called 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, 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 .nuncupative; 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, 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 disposition 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; 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 Anne, c. 16, must be such as are admissible upon trials at common law. 2. That no nuncupative will shall in any wise 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 *501] or some of them 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 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 noncupative 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 does not prohibit the disposition by such codicil of that which is not disposed of by the written will.-CHITTY. 8 till fourteen days after the death of the testator, nor till prosess 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, and is hardly ever heard of, but in the only instance where favour ought to be shown 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 bystanders 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 publication.↓ speak not here of devises of lands, which are quite of a different nature; being conveyances by statute, 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 handwriting.(0) And though *written in another man's hand, and never signed by the testator, yet, if proved to [*502 be according to his instructions and approved by him, it hath been held a good (0) Godolph. p. 1, c. 21. Gilb. Rep. 260. * Nuncupative wills are not favourites 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 particulars. In the first place, the provisions of the statute of frauds must be strictly complied 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 vs. Jackson, 1 Phillim. 191. Parsons vs. 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 testamentary intentions. Lemann vs. 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 vs. The Parish of St. Clement's Danes, 1 Eq. Ca. Abr. 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.-CHITTY. But nuncupative wills, if made after the 1st of January, 1838, are no longer valid at all; for by the Wills Act, 1 Vict. c. 26, s. 9, the 29 Car. II. c. 3 is repealed to this extent. and it is enacted that no will shall be valid unless it shall be in writing; but, by s. 9, the wills of soldiers and mariners, being in actual military service or at sea, may dispose of their personal estate as they might have done before the act; and, by s. 12, the act is not to affect certain provisions of stat. 11 Geo. IV. and 1 W. IV. c. 60, with respect to the wills of petty officers and seamen of the royal navy and marines so far as relates to their wages, prize-money, or allowances.-STEWART. |