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. (5) 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 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 lands, being excepted out of the statute of wills, 34 and 35 Hen. VIII, [*498] 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. (2) 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, (2) 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 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 con[ *499] trol 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) (6) 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. (ƒ) (7) Outlaws (8) Godolph. p. 1, c. 9. (v) Dr. & St. d. 1, c. 7. (t) F. 31, 1, 77. (u) 4 Rep. 51. (w) Bro. Abr. tit. Devise, 34. Stra. 891. (x) 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. (e) 4 Rep. 60. 2 P. Wms. 624. (f) Plowd. 261. (d) Prec. Chan, 44. (5) This notion is now exploded. See Reynolds v. Reynolds, 1 Speers, 256; Weir v. Fitzgerald, 2 Bradf. Sur. R. 42; Redf. on Wills, 53-58. (6) The tendency is very strong in the United States to remove all the disabilities which coverture imposes to the disposition of property, whether by will or otherwise, and in some of the states this is already done. (7) Lands were never forfeited without an attainder by due course of law, and now attainders do not extend to the corruption of blood. TITLE BY TESTAMENT. also, though it be for debt, are incapable of making a will, so long as the out[Book II, lawry 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, libelers, and others 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 decla[*500] death." It is called sententia, to denote the circumspection and pruration of a man's intentions, *which he wills to be performed after his dence 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 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; and unless the same be proved to have been so done by the oaths of three witnesses at the least: who, by statute 4 and 5 Ann. c. 16, must be such as are admissible upon trials at common law. nuncupative will shall in anywise be good, where the estate bequeathed exceeds 2. That no 30%., unless proved by three such witnesses, present at the making thereof (the Roman law requiring seven), (n) and unless they or some of them were specially [*501] required to bear witness thereto by the testator himself; and unless it was made in his last sickness, in his own habitation or dwellinghouse, 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, (h) Godolph. p. 1, c. 12. (i) l. 7, c. 5. (m) Godolph. p. 1, c. 1, § 3. (g) Fitz. Abr. tit. Descent, 16. (k) 1 Inst. 111, 322. (1) Ff. 28, 1, 1. (j) Inst. 2. 10. (n) Inst. 2, 10, 14. 664 that the thing itself has fallen into disuse; (8) and is hardly ever heard of, but in the only instance where favor 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 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 publication. I speak not here of devises of lands, which are quite of a different nature; being conveyances by statute, unknown to the feudal 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 be accord- [*502] ing to his instructions 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; (7) or, rather, he in this respect has implicitly copied the rule of the civil law. (9) (0) Godolph. p. 1, c. 21. Gilb. Rep. 260. (p) Comyns, 452, 453, 454. (g) L. 2, c. 26. (8) [Nuncupative wills are not favorites 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: Bennett v. Jackson, 1 Phillim. 191; Parsons v. Miller, id. 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 frauds 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 undisputable testimony. Above all, it must plainly result from the evidence, that the instrument propounded contains a true substance and import, at least, of the alleged nuncupation; and consequently that it embodies the deceased's real testamentary intentions. Leman 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.] The power to make a nuncupative will is very much restricted in the United States, being confined generally to soldiers in service and sailors upon a voyage, who are allowed to dispose of personal estate in this manner, but usually to the extent of a few hundred dollars only. As to the hazards attending the authority to make such wills, see Prince v. Hazleton, 20 Johns. 502. In England now, the right to make a nuncupative will is restricted to soldiers and mariners. See statute 1 Vic. c. 26, § 9 and 12. (9) Witnesses are generally required to all wills in the United States, though the number varies; in some three being requisite, and in others two only. And the wills act of 1 Vic. c. 26, requires wills of either real or personal estate to be attested by and subscribed by two or more witnesses. Sec. 9. VOL. I.-84 665 TITLE BY TESTAMENT. [Book II. No testament is of any effect till after the death of the testator. testamentum morte consummatum est: et voluntas testatoris est ambulatoria "Nam omne usque ad mortem." (r) (10) And therefore, if there be many testaments, the last overthrows all the former: (s) but the republication of a former will revokes one of a later date, and establishes the first again. (†) (11) Hence it follows, that testaments may be avoided three ways: 1. If made by a person labouring under any of the incapacities before mentioned: 2. By making another testament of a later date: and, 3. By cancelling or revoking it. For, though I make a last will and testament irrevocable in the strongest words, yet I am at liberty to revoke it: because my own act or words cannot alter the disposition of law, so as to make that irrevocable which is in its own nature revocable. (u) For this, saith Lord Bacon, (w) would be for a man to deprive himself of that, which of all other things is most incident to human condition; and that is, alteration or repentance. It hath also been held, that, without an express revocation, if a man, who hath made his will, afterwards marries and hath a child, this is a presumptive or implied revocation of his former will, which he made in a state of celibacy. (x) (12) The Romans were also wont to set aside testaments as being inofficiosa, deficient in natural duty, if they dis[*503] inherited or totally passed by (without assigning a true and *sufficient reason) (y) any of the children of the testator. (2) But, if the child had any legacy, though ever so small, it was a proof that the testator had not lost his memory or his reason, which otherwise the law presumed; but was then supposed to have acted thus for some substantial cause: and in such case no querela inofficiosi testamenti was allowed. Hence probably hath arisen that groundless vulgar error, of the necessity of leaving the heir a shilling, or some other express legacy, in order to disinherit him effectually: whereas the law of England makes no such constrained suppositions of forgetfulness or insanity; and therefore, though the heir or next of kin be totally omitted, it admits no querela inofficiosi, to set aside such a testament. (13) We are next to consider, fourthly, what is an executor, and what an administrator; and how they are both to be appointed. An executor is he to whom another man commits by will the execution of that his last will and testament. And all persons are capable of being executors, that are capable of making wills, and many others besides; as femecoverts (14) and infants; nay, even infants unborn, or in ventre sa mere, may (r) Co. Litt. 112. (x) Lord Raym. 441. 1 P. Wms. 204. (t) Perk. 479. (y, See book I, ch. 16. (u) 8 Rep. 82. (20) Elem. c. 19. (2) Inst. 2, 18, 1. (10) [This, Lord Loughborough observed, was the most general maxim he knew: Matthews v. Warner, Ves. 210: it is essential to every testamentary instrument, that it may be altered even in articulo mortis: Balch v. Symes, 1 Turn. and Russ. 92; irrevocablility would destroy its essence as a last will. Hobson v. Blackburn, 1 Addams, 278; Reid v. Shergold, 10 Ves. 379.] (11) [Republication of a will makes the will speak as of the time of such republication. Long v. Aldred, 3 Addams, 51; Goodtitle v. Meredith, 2 Mau. and Sel. 14. If a man by a second will revokes a former, but keeps the first undestroyed, and afterwards destroy the second; whether the first will is thereby revived, has been much questioned: the result seems to be, that no general and invariable rule prevails upon the subject, but it must depend upon the intention of the testator, as that is to be collected from the circumstances of each particular case.] (12) Now by the wills act of 1 Vic. c. 26, 18, every will made since 1837, by man or woman, is revoked by his or her marriage, excepting only certain wills executed under a power of appointment. (13) [Courts of probate, however, look with much greater jealousy at, and require more stringent evidence in support of, an inofficious testament than one which is consonant with the testator's duties, and with natural feeling. Brogden v. Brown, 2 Addams, 449; Dew v. Clerk, 3 id. 207.] (14) [But a feme-coverte should not be allowed to act as an executrix or administratrix, without the assent of her husband: for, as he would be answerable for her acts in either of those capacities, he ought not to be exposed to this responsibility, unless by his own concurSee 1 Anders. 117, case 164. It might be equally injurious to the legatees, creditors, or next of kin, of a testator, or intestate, if a married woman were allowed to act as 666 rence. be made executors. (a) But no infant can act as such till the age of seventeen years; till which time administration must be granted to some other, durante minore ætate. (b) (15) In like manner as it may be granted durante absentia, or pendente lite; when the executor is out of the realm, (c) or when a suit is commenced in the ecclesiastical court touching the validity of the will. (d) This appointment of an executor is essential to the making of a will: (e) and it may be performed either by express words, or such as strongly imply the same. (16) But if the testator makes an incomplete will, without naming any executors, or if he names incapable persons, or if the executors named refuse to act: in any of these cases the ordinary must *grant administration cum testamento annexo (f) to some other person; and then the duty of the administrator, as also when he is constituted only durante minore ætate, &c., of another, is very little different from that of an executor. And this was law so early as the reign of Henry II; when Glanvil (g) informs us, that "testamenti executores esse debent ii, quos testator ad hoc elegerit, et quibus curam ipse comiserit; si vero testator nullos ad hoc nominaverit, possunt propinqui et consanguinei ipsius defuncti ad id faciendum se ingerere." [*504] But if the deceased died wholly intestate, without making either will or executors, then general letters of administration must be granted by the ordinary to such administrator as the statutes of Edward the Third and Henry the Eighth, before mentioned, direct. In consequence of which we may observe: 1. That the ordinary is compellable to grant administration of the goods and chattels of the wife, to the husband, or his representatives: (h) and of the husband's effects, to the widow, or next of kin; but he may grant it to either, or both, at his discretion. (i) 2. That, among the kindred, those are to be preferred that are the nearest in degree to the intestate; but, of persons in equal degree, the ordinary may take which he pleases. (k) 3. That this nearness or propinquity of degree shall be reckoned according to the computation of the civilians; (4) and not of the canonists, which the law of England adopts in the descent of real estates: (m) because, in the civil computation, the intestate himself is the terminus, a quo the several degrees are numbered; and not the common ancestor, according to the rule of the canonists. And, therefore, in the first place the children, or (on failure of children) the parents of the deceased, are entitled to the administration; both which are indeed in the first degree; but with us (n) the children are allowed the preference. (0) Then follow brothers, (p) grandfathers, (7) uncles or nephews, (r) (and the [*505] females of each class respectively,) and lastly, cousins. 4. The half-blood is admitted to the administration as well as the whole; for they are of the kindred of the intestate, and only excluded from inheritances of land upon feudal reasons. Therefore, the brother of the half-blood shall exclude the uncle of the (a) West. Symb.. p. 1. § 635. (b) Went. Off. Ex. c. 18. (e) Went. c. 1. Plowd. 281. (c) 1 Lutw. 342, (f) 1 Roll. Abr. 907. Comb. 20. (h) Cro. Car. 106. Stat. 29 Car II. c. 3. 1 P. Wms. 381. (i) Salk. 36. Stra. 532. (k) See page 496. (1) Prec. Chane. 593. (m) See pages 203, 207, 224. (n) Godolph. p. 2. c. 34, § 1. 2 Vern. 125. (0) In Germany there was a long dispute whether a man's children should inherit his effects during the life of their grandfather; which depends (as we shall see hereafter) on the same principles as the granting of administrations. At last it was agreed at the diet of Arensberg, about the middle of the tenth century, that the point should be decided by combat. Accordingly, an equal number of champions being chosen on both sides, those of the children obtained the victory, and so the law was established in their favour, that the issue of a person deceased shall be entitled to his goods and chattels in preference to his parents. (Mod. Un. Hist. xxix. 28.) (p) Harris in Nov. 118, c. 2. (q) Prec. Chan. 527. 1 P. Wms. 41. (r) Atk. 455. executrix, or administratrix, when her husband was not amenable to the courts of this country; for, if she should waste the assets, the parties interested would have no remedy, as the husband must be joined in any action brought against her in respect of such transactions. Taylor v. Allen, 2 Atk. 213.] See Barber v. Bush, 7 Mass. 510; Palmer v. Oakley, 2 Doug. Mich. 433; Edmundson v. Roberts, 1 How. Miss. 322. (15) But no such grant is necessary where there are two executors, one of whom is of full age. See Foxwist v. Tremain, 1 Mod. 47. (16) See Pickering v. Towers, Ambl. 364. |