where two or more persons are in the same degree of kindred, gives the ordinary his election to accept whichever he pleases. Upon this footing stands the general law of administrations at this day. 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 shew 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 (o) 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: which prohibitions are principally upon [497] three accounts: for want of sufficient discretion; for want of sufficient liberty and free will; and on account of their criminal con duct. 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, 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. 7 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 (5) This has been thought an error of the press in Perkins, and that four by mistake was printed for fourteen. See this subject particularly 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. & Butl. Co. Litt. 89. b. n. 6. Toller, 8. Christian. (6) See in general, Toller, 8. (7) If a testator be subject to insanity, a will made during a clear lucid interval will be established. 1 Phil. E. C. 84. 90. 1 Dow. Rep. 178. (8) The circumstances of false reading, misrepresentation, concealment, or promise by a devisee to do that which the testator proposed to do by a new will, thereby inducing him not to make one, or any species of fraud practised upon the testator, will invalidate or extend or alter the operation of a will, either wholly or in part, according to the nature of the transaction; and the court of chancery will supply omissions produced in this way, when the facts are clearly established. See Eq. Abr. 764. c. 4. 1 Harrison's Cha. Pra. 22. 2 P. Wms. 287. 2 Vern. 506. Pre. Cha. 3. 2 Eq. Ca. Ab. 43. 3 Ves. J. 152. 402. 412. 416. Newl. on Cont. 111. CHAP. 32.] 401 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 persons 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, 10 [498] 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. (v) Yet by her husband's licence she may make a testament; (u) and the husband, upon marriage, frequently covenants with her friends to allow her that licence: but such licence 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 The queen consort is an exception to called a donatio mortis causa. (a) 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 [499] 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) 12 s Godolph. p. 1. c. 9. u Dr. & St. d. 1. c. 7. 2 Ff. 28. 1. 6. y Cro. Car. 376. a Ff. 39. 6. 25. d Prec. Chan. 44. v 4 Rep. 51. t Ff. 31, 1. 77. Stra. 891. (9) Toller, 9. (10) See ante, page 375. note 3. (1) Where personal property is given to a married woman for her sole and separate use, she may dispose of it by will without the assent of her husband. 3 Bro. C. C. 8. 1 Ves. J. 46. And also the produce of it, 2 Vern. 535. Prec. Ch. 44. 355.; see further, Toller, 10. Christian. power may be reserved (12) And of course would not revive on the death of her husband. to the wife before marriage, of making a disposition of her separate estate (so as to prevent its going to the heir at law), either by way of trust, or of power over an for that purpose. 6 Bro. P. C. 156. 2 T. R. 695. See 2 Ves. 191. which she disposes of her separate property is not strictly a will, but use, or by an agreement But the instrument by more in the nature of an 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; 13 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 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 the like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology: "volun"tatis nostrae justa sententia de eo, quod quis post mortem suam fieri "velit:" (1) which may be thus rendered into English," the legal declara "tion 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 de made it is voluntatis nostrae sententia, because its efficacy depends on its declaring the testator's intention, whence in England it is emphatically styled his will: itis justa sententi; 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.14 g Fitz. Abr. t. descent. 16. f Plowd. 261. h Godolph. p. 1. c. 12. i. L. 7. c. 5. I Ff. 28. 1. 1. appointment, raising a trust, which a court of equity will enforce. Id. ib. Still it is so far testamentary, that it must be proved in a spiritual court before her legatee shall be entitled. 3 Atk. 156. i Burr. 431. Doug. 707. Toller L. of Ex. 7. (13) See Toller, 11, 12. Chitty. (14) Toller, 4. 56. A codicil may be annexed to the will either actually or constructively. It may not only be written on the same paper, or affixed to or folded up with the will, but may be written on a different paper, and deposited in a different place. Toller's L. of Ex. 4. And a codicil in the form of a letter, directed to be opened on the death of the testator, though anterior to a will (and codicil) regularly executed, in which there was a clause revocatory of all former wills, was held to be valid, it appearing that the testator wished to conceal the legacy till after 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 Ann. 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 or some of them were specially [501] required to bear witness thereto by the testator himself; and unless 15 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 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, that the thing itself has fallen into disuse, and is hardly ever heard of, but in the only instance where favour ought to be shewn to it, when the testator is surprized 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 accident; 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 surprized. 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 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 own hand-writing. (o) [502] And though written in another man's hand, and never signed by the n Inst. 2. 10. 4. o Godolph. p. 1. c. 21. Gilb. Rep. 260. his death. Denny v. Barton, 2 Phill. Ecc. Ca. 577. The same rules apply to codicils which prevail in the case of wills, with this difference, that though the last will revokes all former ones, if there are several codicils they will all operate, except such as are impliedly revoked by the others. (Swinb. 15.) (15) As to the repealed exceptions, applicable to soldiers and mariners in actual service, see 26 Geo. III. c. 63. 32. Geo. III. c. 84. 49 Geo. III. c. 108. 55 Geo. III. c. 60. 1 Toller, 59, &c. testator, yet if proved to be according to his instructions and approved by him, it hath been held a good testament of the personal estate. (p) is Yet it is the safer and more prudent way, and leavesless 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; (9) or, rather, he in this respect has implicitly copied the rule of the civil law. No testament is of any effect till after the death of the testator." Nam "omne testamentum morte consummatum est: et voluntas testatoris est am“bulatoria usque ad mortem." (r) 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. (1)17 p Comyn's, 452, S. 4. q4. 2. c. 26. r Co. Litt. 112. s Litt. § 168. Perk. 478. t Perk. 479. (16) 2 Phil. Ec. C. 213. in which it was held, that written instructions taken down by an attorney from the deceased's dictation, and not signed by him, but of which he approved, was a sufficient will. And though the presumption of law is against an instrument having been intended as a perfect will, although signed by testator, where it has an attestation clause unwitnessed, yet that presumption may be repelled by extrinsic circumstances. 2 Phil. E. C. 177. And where the testator wrote a paper as his will, but left it incomplete for want of signature and attestation, which requisites he intended up to the time of his death to add, but was prevented from effecting by the act of God, such paper was established as a will. 1 Phil. Ec. C. 12. "A will made by interrogatories is valid, but undoubtedly wherever a will is so made, the court must be more upon its guard against importunity, more jealous of capacity, and more strict in requiring proof of spontaneity and violition than it would be in an ordinary case; but if there is clear capacity, if there be the animus testandi, and if the intention is, or may be reduced into writing, the court must pronounce for it. If the answers were intended for instruc tions, and in point of law, if a person gives instructions for a will and dies before the instrument can be formally executed, the instructions will operate as fully as a will itself." Per Sir J. Nicholl, 1 Phil. 58, 9. and see the doctrine from Swinb. part. 11. sect. 5. there referred to. Alterations in pencil, on a regularly executed and attested will, have been admitted to probate. 2 Pail. E. C. 173. And a man may write his will with any material he pleases; it may be im prudent to write it with a material liable to easy obliteration, but a will written in pencil is as valid as a will written in ink, and so is a codicil. The material, however, may be a circumstance to guide the court in deciding whether the deceased intended it as a final disposition or not, and the probate of a codicil written in pencil, and which had been in the possession of the supposed testator three years and upwards, was, for want of evidence of its having been written animo testandi, called in and revoked. 1 Phil. E. C. 22. On this subject Mr. Toller makes the following observation :-" But although the testator's seal, and the attestation of the will, and, under certain circumstances, even his signature may be omitted, and still it may operate as an available disposition of personal estate, 2 Phil. Rep. 122. ; but if on the omission of either of those solemnities, a fair presumption may be raised of an abandonment of intention on the part of the deceased, or that his intention was merely ambulatory, the instrument shall have no effect. Thus, where the party wrote a paper, purporting to be a testamentary disposition of his property, to which a clause of attestation was added but not filled up, the court thought it reasonable, from the want of witnesses, to infer that he had changed his mind, and pronounced for an intestacy. So, where the party had merely sealed the paper propounded for a will, without signing it, from the omission of the signature the inference and decision were the same. In these and the like cases, the framer of the instrument appears evidently to have contemplated a farther solemnity as essential to its perfection; and such solemnity not having been superadded, and the instrument being left inchoate and imperfect, a change of intention may reasonably be presumed. 4 Ves. Jun. 186. & 5 Ves. Jun. 23. Griffin's case. 5 Ves. Jun. 644. 9 Ves. Jun. 249. 1 Mer. Rep. 503. But such presumption may be repelled by evidence, as, by shewing that the party was suddenly arrested by death, or incapacitated by illness, before the instrument could be conveniently perfected, Baillie v. Mitchell, in Prerog. Court, 1805.; or by prov ing his recognition of it in extremis, or by circumstances shewing he intended it to operate in that form; for the presumption from such an omission, that he intended doing something more, is slight, and may be repelled by slight circumstances. 2 Phil. Rep. 177." Toller, 33. By stat. 33. Geo. III. c. 28. s. 14. and 35 Geo. III. c. 14. s. 16. it is enacted, that all per sons possessed of any share or interest in the funds, or any estate therein, may devise the same by will in writing, attested by two or more credible witnesses. But it has been adjudged, that although the same should not be so bequeathed, yet it devolves on the executor in trust for those who are entitled to the personal estate. 7 Ves. J. 452. (17) See Toller, 14 to 18. 1 Phil. E. C. 339. 268. 410. 412. 414. 418 425. A posterior will, though found by a jury to contain a different disposition from a former, yet if the particulars of that |