either a wife or children, but not both, he might dispose of onehalf, the remainder belonging to either the wife or children, as the case might be.8 The wife and children had a special writ, provided for the recovery of their just share of the executor, denominated the writ de rationabili parte bonorum.9 5. This restriction no longer exists in England, either as to real or personal estate,10 and it never existed in this country, except in regard to the widow of the testator, whose right to dower and to a share in the personal estate of her husband is secured by statute, in most of the American states, and which, being in the nature of a vested right, during the life of the husband, is not liable to be defeated by the will of the husband.11 'F. N. B. [122], 9 ed. H. b.; 2 Saund. 66, n. 9; 2 Black. Comm. 492. 'F. N. B. [122], 9 ed. H. b.; Co. Litt. 176, n. 3, by Hargrave. There is not a perfect agreement, among English law writers, upon the question whether it was the old common law of the realm, or the custom of particular counties, by which this restriction upon the disposition of property by will existed. But all agree that the restriction was extensive, if not universal. The form of the writ, in Fitzherbert, Natura Brevium, would seem to indicate, that it rested mainly on custom, since it recites, that "whereas according to the custom which hath hitherto obtained, and been approved in the county aforesaid." F. N. B. [122], 285. But Lord Hale says, in his Notes, to F. N. B. ib., that it hath obtained at common law, and never been demurred to. But Blackstone, Somner, and some others, maintain that it was a common-law right, while Lord Coke asserts the contrary. The subject is of too slight consequence in this country to be further pursued here. The right to dispose of all one's personal property, by will, was not secured throughout all the counties and provinces of England, until a comparatively recent period. 2 Black. Comm. 492, 493; 1 Williams' Executors, 2-4, and note. This right is now, by statute, 1 Vict. ch. 26, extended to all real estate, as well as personal, which one shall be entitled to, either at law or in equity, at the time of his death. This statute, sec. 1, called the interpretation clause, defines "personal estate," as extending to leasehold estate and other chattels real, and also to moneys, shares in government stocks, securities for money (not being real estate), debts, choses in action, rights, credits, goods, and all property which devolves upon the executor, or administrator. "Thayer v. Thayer, 14 Vt. 107; Ladd v. Ladd, id. 185, and cases cited. 6. In the State of Louisiana, the right of disposing of property by will is limited, where the testator leaves descendants; if but one, he may dispose of two-thirds of his estate; if two, of one-half; if three, of but one-third.12 1 These restrictions are adopted from the Roman Civil Law, 4 Kent, Comm. 503; Inst. 2, 18. sec. 1, 2, 3. CHAPTER II. DEFINITIONS. 1. Last will and testament. 2. Codicil, an alteration of the will. 3. Devise, strictly applicable to lands. 4. The term bequest applies to both real and personal estate. 5. Swinburne's enumeration of the difficulties of definitions. § 2. 1. A LAST WILL AND TESTAMENT may be defined, as the disposition of one's property, to take effect after death. It has received a more comprehensive definition, as "a just sentence of our will, touching that we would have done, after our death." And practically, this extent of control is more commonly asserted in such instruments; partly, because any direction given in so solemn a form, upon any subject affecting those nearly related to the testator, and in the view of such sanctions, will naturally be respected by those to whom it is addressed; and partly, perhaps, because the giver of property may annex such conditions, as he may choose, to the gift. But in most of the American states, it is believed, the testamentary power is limited to the disposition of property, and the accidental control of the donees, consequent upon the conditions and limitations annexed to the bequest, or devise. The intimate relation of parent and child, even during the infancy or minority of such child, gives no power of control, beyond the life of the parent, except by way of recommendation, or through the instrumentality of property bequeathed. 1 Swinb. pt. 1, sec. 2; Godolph. pt. 1, ch. 1, sec. 2; 2 Black. Comm. 499. 2. A codicil is now commonly understood to be an addition to, or alteration of the last will and testament. The term itself is derived from codicillus, which is a diminutive of codex, a testament. In the history of jurisprudence upon this subject, this term has been applied sometimes in different senses, not necessary to be here enumerated, as they have now become entirely obsolete. We shall have occasion to say more of the mode of execution and construction of a codicil hereafter. 3. The term devise is applied more exclusively to a testamentary disposition of lands, and in the English courts has been regarded more in the nature of a conveyance, or appointment of particular lands to a particular devisee, than in that of a testament.8 4. The term bequest is applied indiscriminately both to legacies and devises, and embraces both real and personal estate,* and is therefore the more convenient term for general use. But it has no corresponding term to designate the person taking, like legatee or devisee, and is, on that account, not so well fitted for all contingencies. It will be noticed, that many very accurate writers use the term devise, in a sense quite synonymous with bequest, especially in cases connected with charitable trusts, * Swinburne defines a codicil to be, "A just sentence of our will, touching that which any would have done after their death, without the appointing of an executor," making the last clause the only ground of distinction between a will and a codicil. Swinb. pt. 1, sec. 5, pl. 2; Godolph. pt. 1, ch. 6, sec. 2. See further the different uses of this term. Swinb. ib. pl. 9. It was considered by Swinb. (pt. 1, sec. 3, pl. 19), that the naming an executor was indispensable to the validity of a will. But that opinion has long since been abandoned in England, and never obtained in the United States. But while that idea obtained in the English courts, such an instrument was still allowed to be binding upon the administrator, under the appellation of a codicil. Hence a codicil was called an "unsolemn" will. Swinb. pt. 1, sec. 5, pl. 4; 1 Williams' Executors, 7. 1 Williams' Executors, 6; Duppa v. Mayo, 1 Saund. 276 f, n. 4. Per Lord Mansfield, in Harwood v. Goodright, Cowp. 90. * 1 Jarman on Wills, Eng. ed. 702, n. k. but such use of that term is not precisely accurate. In one case it was made the point of the decision, that "bequeath" had been used as synonymous with "devise." 5 5. Swinburne's commentary on definitions is too just to encourage its extension beyond these few terms, since, as that writer very justly says, Definitions are said to be dangerous, in law: the cause may be attributed to the multitude of different cases, the penury of apt words, the weaknesse of our understanding, and the contrariety of opinions;" and are "subject to the rigorous examination of all sorts of men, and must abide the doubtful verdict of the sharpest wits, and endure the dreadful sentence of the deepest judgments. And it is rare, if at the last, after long and superstitious revolution, one man, at least among so many subtile and captious conceits, do not espy some defect or excesse in the definition, whereby the same may be subverted. Which thing if it come to pass, then like as when the captain is slain, the soldiers are in danger to be discomfited, or as the foundation being ruinous, the building is in peril of falling; so the definition being overthrown, all the arguments drawn from thence, and whatever else dependeth thereupon, is in peril to be overturned. No marvel then if definitions be reported to be dangerous. "But if contrary to the common course, the definition be so just, so perfect, that it cannot be justly reproved, this definition, besides that it is not perilous, it is so profitable, and so necessary, that from thence, as from the root and fountain, every discourse ought to take his beginning." & Dow v. Dow, 36 Maine, 211. Swinb. pt. 1, sec. 3, pl. 1. |