CATACILY OF IN ANTO:

(1)As to devie; the St of Wills

which fiette the power to devise, expy ssly
provided a person under 21 should not have the
power to devise, See 34 & 35 Henry VIII, c. 5.,
section XIV, (Set out on page 32, of Gray.)
This disability continued in ills Act, see
763 of CB, first full para.

(2)As to personalty...see footnote,
governed by rules of eecle. sourts, until
the Wills act which do the requirement 21
years, making the same roet irent for R alty
and Personalty..sce 1 Jarman 47 (Cth edi).

Why was feme covert incapable of making wil or testament?

(1)As to wills of realty...quotation in tease book" at common law" 11 a married woman could not devise real estate"... at com. on law, unless we include within the common law, the St. of wills, no one could devise real estate. But the st. of Wills which gave the power to devise expressly denied the power to married women, see 34 & 35 Henry VIII, chapter 5, section XIV. (his portion of Act not in the CB). This disability w s continued in the Wills Act, see page 763 of CB, second full para.

(2). As to testaments of personalty:

We had no statute ap licable he c until the Wills Act, in 1837 put tostarents of p Sonalt; end wills of realty, substntially on the same basis. Why was feme covert incompetent to make a will? Generally com on-law principle that a iwoman was incompetent to effect any chance in her jural relations. Special reason...as to her chattels personal, they became the 's u on marriage, hence any power to bequeath here would be inconsistent with his property. As to chattels real, (leaseholds), they bece the H's in case he sruvived the wife, and any power to bequeath would be inconsistent with this survivorship. II Blackstone, page 498.*

However the ife did have some power to sdispose of her property..: (1)She could dispose of her spearate est t. in couity by will... What was here separate estate in equity? ..rcfors to a case, where to prevent the 19s acu ring his wife's property on marriage, hor roperty was conveyd, prior to marria e, to a trustee to hold for her...here she had an equitable interest, which was devisable by her.) (2)As to crsonalty, the wife could make a testament if the I consente (This shows perhaps true reason for incapacity of wife, not incpmpetence, but interest of H.)

T

Herried women given power of devising property completely by Married Women's roberty Act, 1982, sce 1 Jarman 57 (6h)...this being libited to women who married after date of act.

CHAPTER III.

TESTAMENTARY CAPACITY AND INTENT

SECTION 1.-INFANCY

"And be it further enacted that no will made by any person under the age of twenty-one years shall be valid."-Wills Act, 7 Wm. IV & 1 Vict. c. 26, § 7 (1837).

"It is not questioned that, by the Act of 1840, a person under the age of twenty-one, is incapable of making a will. Hartley's Dig. art. 3252. If, therefore, the testator was a minor, as alleged, the will was void for the want of capacity to make it."-Wheeler, C. J., in Moore ! v. Moore, 23 Tex. 637, 638 (1859)

SECTION 2.-COVERTURE

"At common law, a married woman could not devise real estate, and was incapable of disposing of her chattels by will, without the consent of her husband."-Stoutenburgh v. Hopkins, 43 N. J. Eq. 577, 579, 12 Atl. 689, 690 (1887).

"Lord Coke [Co. Lit. 89b, note 83] lays it down as an established rule of the common law that an infant of eighteen may execute a valid will of personalty, though no infant under the age of twenty-one had capacity to devise lands. [See St. 34 & 35 Hen. VIII, c. 5, § 14.] But the rules which were recog nized in the English ecclesiastical courts, where wills of personal property were probated, were different. The rule of the civil law that infants who had attained the age of fourteen, if males, and twelve, if females, had capacity to execute wills of personal property, was adopted in these courts. The judgment of the probate court admitting the will to probate being conclusive as to the capacity of the testator, the rule of the civil law was agreed to, if not affirmed, by the courts of common law and in the jurisdiction of the chancellor." 1 Underhill on the Law of Wills, 170, § 120. Local statutes should be consulted. (2 On the effect of coverture on testamentary capacity at common law, see 1 Jarman on Wills, *39–42, and 57 Am. Dec. 340-349, note. Local statutes should be consulted. On the right of a wife, under a statute removing the disabilities of married women, to devise property held by her husband and herself as joint tenants, see 7 L. R. A. (N. S.) 701, note. As late as 1899 the Idaho statutes were construed to empower married women to make witnessed wills, but not unwitnessed holographic wills. Scott v. Harkness, 6 Idaho, 736, 59 Pac. 556 (1899).