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administratrix, for these can never be the property of her husband, and if she has any pin-money or separate maintenance, it is said she can dispose of her savings by testament, without the control of her husband. But if a feme-sole make a will, and afterwards marries, such subsequent marriage is esteemed a revocation in law, and entirely vacates the will.
3. Incapacitated by Criminal Conduct. Persons incapable of making testaments, on account of their criminal actions, are firstly all traitors and felons, from the time of conviction, for then their goods are forfeited to the king. A felo de se may not make a will of his goods, for they are forfeited by the manner of his death, but he may make a devise of his lands, for they are not forfeited. Nor can outlaws, while the sentence of outlawry exists, for their goods are forfeited during that time. 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, by the common law their testaments may be good, quod libera sit cujuscunque ultima voluntas. III. NATURE AND INCIDENTS OF A TESTAMENT.
Meaning of Testament. Testaments are so called, because they are testatio mentis. A testament is the legal declaration of a man's intentions, which he wills to be performed after his death. In England, it is styled his will, and is drawn, attested, and published, with all due solemnities and forms of law.
Wills, Written or Verbat. Testaments are of two sorts : written and verbal, or nuncupative. 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.
Codicil. A codicil, codicillus, a little book or writing, is a supplement to a will, or an addition made by the testator, annexed to and to be taken as a part of a testament.
It is an explanation or alteration, or is intended to add to or subtract from the former disposition of the testator. It may be either written or nuncupative.
Nuncupative Wills. As nuncupative wills and codicils are liable to great impositions, and may occasion perjuries, the statute of frauds of Charles II has laid many restrictions on them, except when made by mariners at sea, and soldiers in actual service. As to all other persons it enacts:
(1.) 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. Three witnesses, at least, must swear to the act.
(2.) No nuncupative will shall be good, where the estate bequeathed exceeds thirty pounds, unless proved by three such witnesses, present at the making thereof, the Roman law demanding seven, and unless they or some of them were specially required to bear witness thereto by the testator himself, and unless it was made in his last sickness, in his own habitation, or where he had previously been 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 was put in writing within six days. Nor shall it be proved till fourteen days after the death of the testator, nor till process has first issued to call in the widow or next of kin to contest it, if they think proper.
Summary of Requisites to a Verbal Will. Owing to the numerous requisites, nuncupative wills are now fallen into disuse, and the only instance when favor should be shown them is when the testator is suddenly prostrated with violent illness. The testamentary words must be spoken, with an intent to bequeath, and not any loose, idle discourse in his illness ; for ne must require the bystanders 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 too hastily and without notice, lest the family of the testator be unduly surprised."
Absence of Signature. 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 handwriting. And though written in another man's hand, yet if it be proved to be according to the testator's instructions, and approved by him, it has been held to be a good testament of is hpersonal estate.
1 By the wills act of Victoria, nuncupative wills are no longer valid, except the wills of soldiers and mariners, in actual military service or at sea, who are permitted to thus dispose of their personal estates.
Last Will Holds. No testament is of any effect till after the death of the testator. If there be many testaments, the last overthrows all the former, but the republication of a former will revokes one of a later date, and re-establishes the first.
How a Will May be Avoided. Testaments may be avoided in three ways:
1. If made by one having mental incapacity.
3. By cancelling or revoking it. Irrevocable Words. For though I make a will irrevocable in the strongest words, yet I am at liberty to revoke it, because my own act or language cannot alter the disposition of law, so as to make that irrevocable, which is in its nature revocable.
Child Disinherited. Without an express revocation, if a man, who has made his will, subsequently marries, and has a child, this is an implied revocation of his former will, which he made in a state of celibacy. The Romans set aside testaments, if they disinherited or totally passed by, without assigning a true and sufficient reason, any child of the testator. But if the child had any legacy, however small, it was a proof that the testator had not lost his memory or reason, which otherwise the law presumed, but was supposed to have acted for some substantial cause, and in such case no querela inofficiosi testamenti was allowed. Hence probably arose that vulgar error of the necessity of leaving the heir a shilling, or some other express legacy, in order to disinherit him effectually, whereas the law of England will not set aside a testament simply because the heir or next of kin is not mentioned therein.
IV. ' EXECUTORS AND ADMINISTRATORS; WHO THEY ARE AND
Who may be an Executor. An executor is he to whom another man commits by will the execution of his last will and
1 By statute of Victoria, this distinction between wills of real and personal estate is now abolished, and every will to be valid must be signed at the foot by the testator or by some one in his presence or by his direction, and such signature shall be acknowledged by the testator in the presence of two witnesses.
testament. All persons are capable of being executors, who are capable of making wills, and many others besides, as a femecovert or an infant; nay even infants unborn, or in ventre sa mere may be made executors. But no infant can act as such, till the age of seventeen years, till which time administration must be granted to some other, durante minore aetate. In like manner it may be granted durante absentia or pendente lite, when the executor is out of the realm, or when a suit is commenced in the ecclesiastical court, touching the validity of the will.
Administrator, with Will Annexed. The appointment of an executor iu essential to the making of a will, and it may be performed, either by express words, or such as strongly imply the same.
If no executor be named in the will, which renders it incomplete, or if an incompetent person be named as executor, or if the executor refuses to act, the ordinary must grant administratum cum testamento annexo, to some other person, such administrator having duties nearly similar to those of an executor.
Persons Entitled to Administer. But if the decedent died wholly intestate, then general letters of administration must be granted by the ordinary to such administrator, as the statutes of Edward III and Henry VIII, hereinbefore referred to, direct, viz.:
1. To grant administration of the goods of the wife to the husband, or his representatives, and of the husband's effects to the widow, or next of kin; but he may grant it to either or both at his discretion.
2. That, among the kindred, those are to be preferred, who are the nearest in degree to the intestate; but of persons in equal degrees, the ordinary may select whom he pleases.
3. That this nearness or propinquity of degree shall be reckoned according to the computation of the civilians, and not of canonists, which the law of England adopts in the descent of real estate, because in the civil computation, the intestate himself is the terminus a quo the several degrees are numbered, and not the common ancestor, according to the rule of the canonists. Hence the children, and on failure of children, the parents of the deceased, are entitled to the administration. Then follow brothers, grandfathers, uncles or nephews, and the females of each class respectively, and lastly cousins.
4. The half blood is admitted to the administration as well as the whole, for they are of the kindred of the intestate, and only excluded from inheritances of land, for feudal reasons. Therefore the brother of the half-blood shall exclude the uncle of the whole blood, and the ordinary may grant administration to the sister of the half, or the brother of the whole blood, at his discretion.
5. If none of the kindred will take out administration, a creditor may, by custom, do it.
6. If the executor refuses or dies intestate, the administration may be granted to the residuary legatee, in exclusion of the next of kin.
7. Lastly, the ordinary, may, in defect of all these, commit administration, as he might have done before the statute of Edward III, to such discreet person, as he approves of; or he may grant letters ad colligendum bona defuncti, which neither makes him executor nor administrator; his only duty being to keep the goods in his safe custody, and to do other acts for the benefit of those entitled thereto.
King's Appointee. If a bastard, who as nullius filius, has no kindred, or if any other party died intestate, without leaving wife or child, it was formerly held, that the ordinary might seize his goods, and dispose of them in pios usus. But the usual course now is for some one to procure letters patent, or other authority from the king, and then the ordinary grants him administration, as the appointee of the crown.
Executor of an Executor. The interest vested in the executor by the will of the decedent, may be continued and kept alive by the will of the same executor, so that the executor of A's executor is to all intents and purposes the executor of A himself; but the executor of A's administrator, or the administrator of A's executor is not the representative of A. For the power of an executor depends on the special confidence of the deceased, and he is allowed to transmit that power to another, in whom he has equal confidence; but the administrator is merely an officer of the ordinary, in whom the decedent has reposed no trust.
Administrator de Bonis Non. Wherever therefore the course of representation from executor to executor is interrupted by any one administration, it is requisite to commit administration afresh of the goods of the deceased not admin