whole was at his own disposal. (7) The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them. (s)

This continued to be the law of the land at the time of magna carta, which provides that the king's debts shall first of all be levied, and then the residue of the goods shall go to the executor to perform the will of the deceased; and, if nothing be owing to the crown, "omnia catalla cedant defuncto; salvis uxori ipsius et pueris suis rationabilibus partibus suis." (t) In the reign of King Edward the Third, this right of the wife and children was still held to be the universal or common law; (u) though frequently pleaded as the local custom of Berks, Devon, and other counties: (w) and Sir Henry Finch lays it down expressly, (x) in the reign of Charles the First, to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now, by, will, bequeath the whole of his goods and chattels; though we cannot trace out when first this alteration began. Indeed Sir Edward Coke (y) [ *493] is of opinion, that this never was *the general law, but only obtained, in particular places, by special custom: and to establish that doctrine, he relies on a passage in Bracton, which, in truth, when compared with the context, makes directly against his opinion. For Bracton (2) lays down the doctrine of the reasonable part to be the common law; but mentions that as a particular exception, which Sir Edward Coke has hastily cited for the general rule. And Glanvil, magna carta, Fleta, the year-books, Fitzherbert, and Finch, do all agree with Bracton, that this right to the pars rationabilis was by the common law: which also continues to this day to be the general law of our sister kingdom of Scotland. (a) To which we may add, that whatever may have been the custom of later years in many parts of the kingdom, or however it was introduced in derogation of the old common law, the ancient method continued in use in the province of York, the principality of Wales, and in the city of London, till very modern times: when in order to favor the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes have been provided: the one 4 and 5 W. and M. c. 2, explained by 2 and 3 Ann. c. 5, for the province of York; another 7 and 8 Wm. III, c. 38, for Wales; and a third, 11 Geo. I, c. 18, for London: whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part or moiety. In disposing of which, he was bound by the custom of many places (as was stated in a former chapter) (b) to remember his lord and the church, by leaving them his two best chattels, which was the original of heriots and mortuaries; and afterwards he was left at his own liberty, to bequeath the remainder as he pleased.

*In case a person made no disposition of such of his goods as were [*494) testable, whether that were only part or the whole of them he was, and is, said to die intestate; and in such cases it is said, that by the old law the king was entitled to seize upon his goods, as the parens patriæ, and general trustee of the kingdom. (c) This prerogative the king continued to exercise for some time by his own ministers of justice; and probably in the county court where matters of all kinds were determined: and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right

(8) F. N. B. 122.

(t) 9 Hen. III. c. 18.

(r) Bracton, 1. 2. c. 26. Flet. 1. 2, c. 57. (u) A widow brought an action of detinue against her husband's executors, quod cum per consuetudinem totius regni Angla hactenus usitatam et approbatam uxores debent et solent a tempora. &c., habere suam rationabilem partem bonorum maritorum suorum: ita videlicit, quod si nullos habuerint liberos, tunc medietatem ; at si habuerint, tunc tertiam partem, &c., and that her husband died worth 200,000 marks, without issue had between them; and thereupon she claimed the moiety. Some exceptions were taken to the pleadings and the fact of the husband's dying without issue was denied; but the rule of law, as stated in the writ, seems to have been universally allowed. (M 30 Edw. III, 25.) And a similar case occurs in H. 17 Edw. II, 9. (w) Reg. Brev 142. Co. Litt. 176. (z) 1. 2, c. 26, § 2. (a) Dalrymp. of Feud. Property, 145.

(x) Law, 175.
(b) Page 426.

(y)2 Inst. 33.
(c)9 Rep. 38.

to grant administration to their intestate tenants and suitors, in their own courts baron, 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 (i) "quod ordinarii, hujusmodi bona nomine ecclesiæ occupantis nullam vel saltem indebitam faciunt distributionem." And to what 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 decendentium 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 entrusted 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 should 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 Edw. III, c. 11, provides, that, in case of [*496] 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 disabilites. 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 (f) Finch, Law, 173, 174. (g) Plowd. 277. (k) In Decretal, l. 5, t. 3, c. 42.

(e) § 486.

(i) l. 2, c. 57, § 10.

(d) Ibid. 37. (h) Plowd. 277. (1) The proportion given to the priest and to other pious uses, was different in different countries. In the archdeaconry 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, c. 15. (m) 13 Edw. I, c. 19.

(n) 9 Rep. 39.

same degree of kindred, gives the ordinary his election to accept which ever he pleases.

Upon this footing stands the general law of administrations at this day. (2) 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 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.

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 custom; [*497] 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) (3) 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, such as have their senses besotted with drunkenness; (4) all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. To this class also (0) Godolph. Orph. Leg. p. 1, c. 7. (p) Godolph. p. 1, c. 8. Wentw. 212. 2 Vern. 104, 469. Gilb. Rep. 74. (q) Perkins, § § 503. (r) Co. Litt. 89.

(2) The probate act of 1857, 20 and 21 Vic. c. 77, abolished the jurisdiction of the ecclesiastical courts to grant probate of wills and letters of administration, and established a new court, called the court of probate, to exercise this authority. The new court, however, is not to entertain suits for legacies, or for distribution; this being left to the court of chancery.

(3) By the wills act of 1 Vic. c. 26, no will is valid made by any person under the age of twenty-one years.

In several of the United States wills may be made at an earlier age, and in some a distinction is made between wills of real and personal estate. The subject is regulated by statutes in all the

states.

(4) Upon the subject of mental competency in general, the reader will consult the treatises on medical jurisprudence, wills and contracts.

Old age of itself, even though combined with disease, is no disqualification to execute a will, where the person retains sufficient memory and understanding to have a general knowledge of his property, and of the persons who are or should be the objects of his bounty. It is not essential that the mind should be wholly unimpaired, and capable of enlarged business transactions and contracts; justice requires only that there should be a strength of mind equal to the purpose to which it is to be applied. The power to dispose of his property is frequently the chief protection which one in extreme old age possesses against abuse and outrage; and the testamentary dispositions of this class of persons ought to be treated with great tenderness and liberality. See Harrison v. Rowan, 3 Wash. 580; Hathorn v. King, 8 Mass. 371; Watson v. Watson, 2 B. Monr. 74; Dornick v. Reichenback, 10 S. and R. 84; McDaniels' Will, 2 J. J. Marsh. 331; Delafield v. Parish, 25 N. Y. 9.

The fact that one is under intoxicating liquor at the time of making a will will not avoid it, unless where the intoxication has proceeded to the extent of depriving him of consciousness of what he is doing. Starret v. Douglas, 2 Yeates, 48; Temple v. Temple, 1 Hen. and Munf. 476; Harper's Will, 4 Bibb, 244; Peck v. Carey, 27 N. Y. 9. But either extreme old age or any degree of drunkenness is always an important circumstance to be taken into consideration in connection with any circumstances tending to show that fraud has been practiced or undue influence exerted in procuring the will.

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. (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 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) But, if a feme-sole makes her will, and after- [*499] wards 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

(t) Ff. 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. (a) Ff. 39, 6, 25. (b) Co. Litt. 133. (c) Godolph. 1, 10. (e) 4 Rep. 60. 2 P. Wms. 624. (f) Plowd. 261.

(8) Godolph. p. 1, c. 9.

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

(z) Ff. 28, 1, 6.

(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.

also, though it be 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, 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 declaration of a man's intentions, *which he wills to be performed after his [*500] 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 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. 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 were specially required to bear witness thereto by the testator himself; and unless [*501] 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.