Married women. Persons incapable of making a will. What property may be bequeathed. infants were incapable of devising real property; but by the recent statute, “no will made by any person under the age of twenty-one years shall be valid." a At common law a married woman could not in general make a will, because all her personal property devolved upon her husband by the marriage; and, by the statute of wills, she was expressly incapacitated from devising real property. The recent statute provides that, "no will made by a married woman shall be valid, except such a will as might have been made by a married woman before the passing of this act." The disability of coverture, therefore, remains unaffected by that act. A married woman may be empowered to make a will of her real or personal property, by an express stipulation with her intended husband previous to the marriage; or it seems that she may bequeath any personal property which was originally hers, or the savings out of her personal estate, with the consent of her husband, which consent, however, may be revoked d. So, if the husband is banished by act of parliament, or has abjured the realm, the wife may make a testamentary disposition of her real or personal property; and so, it seems, if he be under sentence of transportation as a felon. The recent statute provides generally, that every person may devise his property, except in the two cases of infants and married women, leaving cases of other personal disabilities as they stood at common law; so that it may be laid down as a general rule, that, with the exception of infants, married women, idiots, persons born blind, deaf, and dumb, lunatics, and persons labouring under a mental incapacity, who have not sufficient understanding to manage their own affairs, and who therefore, at common law, were incapable of disposing of their property by will, every person may bequeath or dispose of by will, executed in the manner above described, all real and personal property to which he shall be entitled either in law or in equity at the time of his death, and which, if not disposed of by will, a7 W. IV. & 1 Vic. c. 26. s. 7. Rippon v. Dowding, Amb. 565. a Herbert v. Herbert, Prec. Ch. 44. Peacock r. Monk, 2 Ves. 190. e Countess of Portland v. Prodgers, 2 Vern. 104. Ex parte Franks, 7 Bing. 762. 1 M. & Scott, 11. See ante, 208. would devolve upon his heir at law, or customary heir, or upon his executor or administrator, &c. a It is observable, that under the old law, freehold or copyhold estates acquired after the date of the will, did not pass thereby; whereas by the recent act, every kind of property which the testator may be entitled to at the time of his death, even that which he may have acquired after the execution of his will, will pass, if the intention that it should pass be sufficiently indicated by his will. SECTION III. SIGNING AND ATTESTATION. stitutes a sufficient In the preceding pages we have shown what are the general What conrequisites of a will; it is now proposed to consider how these requisites must be effected. The statute of frauds required the signing. will to be signed by the party devising. It has been held to be a sufficient compliance with this provision, if the testator signed his name at the beginning of the will, for the statute did not require him to subscribe it; as where he wrote the will himself, beginning " I, Henry Jones," &c. b Where a will, which was written on three sides of one sheet of paper, and duly attested by three witnesses, concluded by stating "that the testator had signed his name to the two first sides thereof, and his hand and seal to the last," and it appeared that he had put his name and seal to the last only, but had omitted to sign his name to the two first sides; held, that the will was well executed; as, whatever might have been the testator's former intention, it was abandoned by the final signature made by him at the time of executing the will. But where a will consisted of several sheets, and the testator signed two of them, and intended to sign the rest, but was prevented from weakness; it was held, that the will was incomplete, for the testator did not mean the signature of the two first as the signature of the whole d. If the testator could not write, Signing under the new Act. Attestation. his mark would be sufficient. But his seal, without his signature, would not suffice, though the contrary was held in some of the earlier cases c. Though the signature of the testator, in any part of the will, was sufficient to satisfy the statute of frauds, the recent act requires the will to be signed by the testator, or some other person in his presence, or by his direction, at the foot or end thereof. Under this statute, the signature may be either the name of the testator or his mark, as before; but it must be at the end of the will. The statute of frauds required the will to be attested and subscribed in the presence of the devisor; but it was not necessary that the testator should sign in the presence of the witnesses, it was sufficient if he had acknowledged the will or the signature in their presence, either separately or all together; nor was it necessary that the witnesses should know that the instrument was a will; though the witnesses were required to sign the will in the presence of the testator, yet it was not necessary that the testator should see them sign, it was sufficient to shew that he was so situated that he might have seen them do so; as where he was in one room and the witnesses attested the will in another room, in which he might see them through a broken window; it was held sufficient s. So, where the testator was in bed and might have seen through an open door into the next room h. So, where the testatrix sat in her carriage, from which she might see the witnesses through a window in an attorney's office. But, where the attesting witnesses retired from the room where the testator had signed, and subscribed their names in an adjoining room, and the jury found that, from one part of the testator's room, a person, by inclining himself forwards with his head out at the door, might have seen the witnesses, but that the testator was not in such a situation in the room that he might, by so inclining, have seen them; held, that the will was not duly attested a. An attestation by a mark was sufficient. The will need not have been subscribed by all the witnesses at the same time, nor in each other's presence. If, however, they attested at several times, one witness would not be sufficient to prove the execution. Where the devisor published his will in the presence of two witnesses, who subscribed it in his presence, and some time after sent for a third witness, and published it in his presence; it was held sufficient d. It was not necessary that the attestation should be stated on the face of the will; where all the witnesses were dead, and the attestation stated that the will had been signed by the testator, in the presence of the witnesses, without saying that they had subscribed the will in his presence; it was held, that the jury might presume that fact e. If the will was written at one time on separate pieces of paper, and signed by the testator, and all were produced at the time of the execution, it was sufficient if the last sheet was attested by the witnesses. But subscribing the last sheet was not sufficient, unless the witnesses saw the other sheets 8. The only alteration made by the recent act in respect of attestation is, that the witnesses to the will must both be present at the same time when the signature is made or acknowledged by the testator, whereas previously, as we have seen, an acknowledgment to the different witnesses at several times was deemed sufficient. The provision respecting the subscription a Doe d. Wright v. Manifold, 1 M. & S. 294. "I should have great doubts on this case," said Lord Ellenborough, "if the jury had not negatived the testator's being in a situation that he might have seen the attestation; for in favour of attestation it is presumed, that if the testator might see, he did see." Id. b Harrison v. Harrison, 8 Ves. 185. 185. Cook v. Parson, Prec. in Chan. d Jones v. Lake, 2 Atk. 176. n. f Bond v. Seawell, 3 Burr. 1773. Signing ation under and attest the new act. of the witnesses is the same as in the statute of frauds: the words are,"such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." It is apprehended, therefore, that the foregoing decisions respecting attestation will, with the exception above stated, equally apply to wills under the new act, and that the constructive presence of the testator when the witnesses are signing, will be sufficient. It may however admit of some doubt, whether, as the statute requires that both the witnesses should be present at the same time when the testator signs, and that they should sign in his presence, the legislature did not intend that the witnesses should sign in the presence of each other; yet as the words used are the same as those in the statute of frauds, it is apprehended that the courts will adopt the old construction, namely, that the witnesses need not sign at the same time, or in the presence of each other. competent witnessses under the statute of frauds. SECTION IV. WITNESSES. Who were THE statute of frauds required a will to be attested by three or four credible witnesses. It seems to have been held in general that an incompetent witness was not a credible witness a. Incompetency proceeds from a defect in understanding, want of religious belief, a conviction of an infamous crime, or interest; idiots, insane persons, and lunatics are incompetent, and therefore not credible witnesses; so are children who are incapable of distinguishing between good and evil. The competency of children depends not upon their age, but upon the sense and understanding which they manifest on examination by the court b. Atheists, and persons who profess no religion that can bind their consciences to truth, or who do not believe in a future state of rewards and punishments, are incompetent witnesses. |