porate; and those who held estates by the tenure of chivalry were enabled to devise two-thirds thereof.* The statute of 34-35, Hen. VIII, declared "that wills or testaments made of any manor, lands, tenements or other hereditaments, by any woman covert, or person within the age of twenty-one, idiot, or by any person de non sane memory, shall not be taken to be good or effectual in law."

From 1642 to 1659, under Cromwell, the feudal theories pertaining to the tenure of lands in England, were disregarded and after the Restoration of the monarchy, could not be revived, and nearly all lands thus came to be held by their possessors in fee-simple.

The feudal system did not affect the disposition of personal property by will, and all through the Norman period the right to make testamentary bequests prevailed. But in some parts of England, if not in the whole country, about the end of the twelfth century. the testator could only dispose of the whole of his personal property by testament, in case he left neither wife nor children, otherwise he could dispose of but a third of his personal property. One-third going to his wife, and known as the "wife's part," one-third to his children, and known as "child's part," or "bairn's part;" in case

*"The effect of these two acts was to enable all persons except feme coverts, infants, idiots and persons of non-sane mind and memory to devise by will and testament, in writing, twothirds of their land held by Knight's services and all lands held by socage tenure. The beneficiary could not be a corporation by the terms of these statutes."-Page on Wills, 13.

he left only wife or children, he could dispose of one-half his property, the other half going to his wife or children. This limitation upon the power of the testator came to be known as the "doctrine of reasonable parts."

This limitation on the power of the testator soon faded away, and by 1625, in the beginning of the reign of Charles I, it was the general rule throughout England that a testator could dispose of all his personal property, except in those districts where the old law still existed. The Statute I, Vict. C. 26, passed in 1837, gave the testator the unlimited power of disposing of his personal property.

Sec. 934. HISTORY OF WILLS AND TESTAMENTS IN THE UNITED STATES.-In the United States each State has its own statute of wills, by which the question of capacity, form, execution and effect are determined. These statutes are based upon the English Common Law as modified by the Statute of Wills and subsequent statutes in England up to the time of the Declaration of Independence. In a few States settled by the French and Spanish, the law is colored by the French and Spanish Law.‡

*Black. Com. II, 492.

†Black. Com. II, 493.

"The net result may be said to be, that in the greater part of the United States, the law of wills is of pure English origin, modified by modern statutes, showing some influence of Spanish and French law in some of the Southern and Western States; while in Louisiana the law of wills is of French-Roman origin, gradually yielding in some respects to the influence of the remaining common law States."-Page on Wills, Sec. 19.

CHAPTER III.

WHAT PROPERTY MAY BE DISPOSED OF BY WILL.

Sec. 935.

EXTENT OF TESTAMENTARY POWER, GENERAL RULE.-We have seen in the previous chapter, that none of the restrictions incident to feudal times, and which prevailed under the English Common Law, became operative in the United States. And the general rule as to testamentary power in this country is, that all property, both real and personal, corporeal and incorporeal, vested and contingent, legal or equitable, which the owner may be entitled to at the time of his death, may be disposed of by his lawfully executed will. And it is now the general rule that property acquired after the making of the testator's will, may pass by it, though as to real property the rule was formerly different.†

This general rule covers only such property as the

*Page on Wills, Secs. 143-148; Harvard College v. Balch, 171 Ill. 275; Tompkin's Est., 154 N. Y. 634; Allen's Succession, 49 La. Ann. 1096; Dodge v. Gallatin, 130 N. Y. 117; Cressinger v. Welch, 15 Ohio 156. "Any person of full age, and of sound mind and memory, and not under any restraint, having any property, personal or real, or any interest therein, may give and bequeath the same to any person by last will and testament lawfully executed."-Rev. Stat. of Ohio, Sec. 5914.

†Girard v. Philadelphia, 4 Rawle (Pa.) 323; Haley v. Gatewood, 74 Tex. 281; Pruden v. Pruden, 14 O. S. 251; Morgan v. McNeeley, 126 Ind. 537.

G

testator owns, and his right to dispose of property by will is always subject to the payment of all his just debts, liens, incumbrances or other obligations created in his lifetime. And though his will dispose of all his property creditors can assert their claims and have them paid out of the devised property.*

Sec. 936.

SAME

SUBJECT-EXCEPTIONS

TO THE GENERAL RULE.-To the general rule that all of the testator's property can be disposed of by will, certain exceptions, usually statutory, and substantially uniform throughout the United States are to be noted:

1. The expenses of administration and statutory allowances for the support of the widow and the minor children of the testator during the settlement of his estate, are usually made a charge upon the testator's property.†

2. The widow's dower is usually preserved to her, and takes priority over a devise of the realty, unless other provisions are made for her in the will which she elects to accept in lieu of her statutory right of dower, or unless it is waived by an ante-nuptial contract. Where the husband has similar interests in his wife's realty, he cannot be deprived of them by her will to which he does not consent.‡

*Kimball v. Bible Soc., 65 N. H. 139; In re Kidd, 3 Ch. Div. 558; Young v. Snow, 167 Mass. 287.

Rev. Stat. of Ohio, Secs. 6038 to 6040.

‡Cook v. Adams, 169 Mass. 186; Warren v. Warren, 148 Ill. 641; Spangler v. Dukes, 39 O. S. 642; Wilber v. Wilber, 52 Wis. 298.

In a few States she may have both the property bequeathed in the will and her dower. But the general rule is different; and in Ohio she may only have both, in case it plainly appears by the will to have been the intention of the testator that she should have both.*

3. The homestead interest of the widow and the children of the testator, given in some States, cannot be barred by the testator's will.†

4. In some States, certain interests in the husband's personal property are reserved by statute to the widow, and where this is done he cannot by will divest her of such property.‡

5. In a few States, the property acquired by husband and wife is regarded as community property, or "acquets," which belong equally to the husband and wife, so that neither can dispose of the interest of the other by will.§

6. Posthumous children, or children born after the death of the testator, and not provided for in the will, usually take as though their parent had died intestate. And in some States, if the testator had no children at

*Rev. Stat. of Ohio, Sec. 5963; Collier v. Collier, 3 Ohio St. 369.

†Peebles v. Bunting, 103 Ia. 489; Shorr v. Etling, 124 Mo. 42; Matheny's Est., 121 Cal. 267; Wells v. Church, 63 Vt. 116. Cummings v. Daniel, 9 Dana (Ky.), 361; Tyler v. Wheeler, 160 Mass. 206. So in Ohio, without express statute, Doyle v Doyle, 50 O. S. 380.

§Mayo v. Tudor, 74 Tex. 471; Sharpe v. Loupe, 120 Cal. 89; Cox v. Von Ahlenfeldt, 50 La. Ann. 1266.