>* 



WIFE, KOMAN. 



WILL AND TESTAMENT. 



The husband whose wife U either judicially or voluntarily sepa- 

 rated fr<mi him oeaaes to be responsible for the debt* incurred l>y her 

 .lit. r ill.' .!..: "f the separation. Her own property U liable to execu- 

 ti.'ii lur her obligations, but not her person, unless her husband be 



.mt of Scotland, in which case it has been decided that a wife 

 transacting busino on her own account U liable to diligence against 

 her person, or arrest and imprisonment The husband has the uncon- 

 trolled custody of the children of the marriage during pnpillarity. The 



..f session will interfere for their pi.it' cti.-n in the case of their 

 penooal ill-usage, or of danger of contamination, but not on the ground 

 of a special estate being settled on a child by a third party. 



On the dissolution of a marriage by the death of either party, an 

 anterior question to that of the distribution of the property is, whether 

 the marriage was permanent A permanent marriage is one which h.i.- 

 laxted for a year and part of a day, or of which a living child hoe been 

 bom. In the case of dissolution by death of a marriage not permanent, 



a question of accounting, and the property of the parties is, as 

 nearly as circumstances will permit, so distributed as it would have 

 been had no marriage between them been solemnised. In the cage of 

 a |nnanent marriage, the moveable property is divided as above 

 stated, the survivor getting a half, if there is no issue, and a third if 

 there is issue. Of any real property in which a wife dies infeft, if 

 there have been a living child born of the marriage, and if there is no 

 surviving issue of the wife by a former marriage, the widower enjoys 

 the life-rent use; this U colled " the courtesy of Scotland." A widow 

 enjoys the life-rent of one-third part of the lauds over which her 

 husband has died infeft, by way of " Terce." The distribution of the 

 property, personal or heritable, may be otherwise arranged by ante- 

 nuptial contract, or equivalents to the property to which a party would 

 succeed may be made by the settlements of the deceased. 



( )n the dissolution of marriage by divorce, the offending party forfeits 

 whatever provisions, legal or conventional, he or she might be entitled 

 to from the marriage ; and the innocent party, at whose instance the 

 suit of divorce is brought, retains whatever benefits, legal or conven- 

 tional, he or she may have become entitled to by the marriage. It 

 follows that when the divorce proceeds at the suit of the wife, she 

 obtains, at the date of the decree of divorce, the provisions which, as 

 above, she would be entitled to on the death of her husband ; and that, 

 on the other hand, if the suit be at the instance of the husband, the 

 wife not only loses her right to such provisions, but forfeits to the 

 husband whatever property she may have brought into the goods in 

 communion. 



WIFE, ROMAN. [MAHiiiAr;K, ROMAN.] 



WILT,. [KiiKK-Wiu..] 



\V1I.I, AND TESTAMENT. Before the passing of the 32 Hen. 

 VIII. c. 7, commonly called the Statute of Wills, and the 34 & 35 

 Hi n. VIII. c. 5, there was no general testamentary power of freehold 

 land in England, but the power of making a will of personal property 

 appears to have existed from the earliest period. Yet this power did 

 not originally extend to the whole of a man's personal estate ; but a 

 man's goods, after paying his debt* and funeral expenses, were divisible 

 into three equal part*, one of which went to his children, another to 

 his wife, and the third was at his own disposal If he had no wife or 

 uo children, he might bequeath one half, and if he hod neither wife 

 nr children, the whole was disposable by will ('1 111. * Conim.,' 522, 

 Mr. Kerr's edit. ; Kit/her! i -it, 'Nat. Hrev.,' 122). The law, however, 

 wan gradually altered in otlur p:.rts of Kngland, and in the province of 

 York, the principality of Wales, and in the city of London more lately 

 by statute, so as to give a man the power of bequeathing the v. 

 his personal property. At present by the 1 Viet. c. 26, for the amend- 

 ment of the law with respect to wills (whereby the former statutes 

 i.ln-ru enumerated, with respect to wills are repealed, except so far us 

 the same acts or any of them resj < 



it to which thin act does not extend), it is enacted that it 



> lawful for every person to devise, bequeath, and dispose of, 

 by his will, executed as required by that act, all real and personal 

 rotate which he shall be entitled to cither at law or in equity at the 

 time of his death. Great ol' -en introduced into the 

 law of wills by this statute; but as it does not extend to any will 

 nude before the lt of January, Itvjs, it is necessary to considi r (In 1 

 law a* it stood previous to the act. 



In general all persona are capable of discing by will of lioth real 



i-nonal entate who have sufficient understanding. The ] 

 the king to make a will is defined by the :-,'.> ,1 Jo (ieo. II i 



'ie former Statute of Will*, married women, persons within the 

 age of twenty-one years, idiots and pel sons of nun Kane memory, were 

 dot-lured incapable of making wills of real estate. These disabilities 

 also applied to a bequest of personal estate, except that infanta of a 

 certain age, namely, males of fourteen and > -.might 



dUixwe, by will, of personalty ; and that by the 12 Car. II. o. 21, s. 8, a 

 father under twenty-one might, by a will attested by two witnesses, 

 :t. guardians to his children. But, by the second section of the 

 Will* Act, no will made by any person under the age of tw< 

 years U valid ; and no will mode by any married woman is valid. 

 except such a will as might have been made by a married woman 

 before the naming of the new act The disability of a married "iu.ui 

 i* not absolute. She may make a will of her personal property if her 

 husband consents to that particular will, and it will be operative if he 



survive her. The validity of a lunatic's will depends upon the state of 

 his mind at the time of making it Persons born deal and dumb are 

 presumed to be incapable of making a will, but the presumption may 

 be rebutted by evidence, Blindness and deafness alone do not pi 

 incapacity. 1 v\ i -c of lands by aliens are at least voidable 

 being i r office found, to seize them in the hands 



devisee, as it might have done in those of the alien during his 1 : 



usly to the act 1 Viet c. 20, the general power of testators 

 was subject to exceptions. Customary freeholds and copyholds wero 

 not within the Statute of Wills, and then-fore, unless where devisable 

 by special custom, could in general be passed only by means of a sur- 

 render to the use of a wilt By the .V. < :. . I II. a. i '-'-. tin 1 w.t;. 

 Fiirrender was supplied in cases where it was a mere form, but 

 did not apply to caws where there was no custom to surr. 

 use of a will, nor to what are called customary freeholds. A devisee 

 or surrenderee of copyholds could not devise before admittance, though 

 an heir at-law might. Conditions were not devisable, nor were rights 

 y or action, nor contingent interests when the person to be 

 entitled was not ascertained : hinds acquired after the execution 

 will also did not pass by it; but by section 3 of 1 Viet c. - 

 power of disposition by will extends to all real and personal ostai 

 to all estates, interests, and rights to which the testator may bo 

 entitled at the time of his death, though acquired subsequ. 

 execution of his will. There is no rest: 'o the persons to 



whom devises or bequests may be made, except under the 3J i 35 

 I'.n. VIII. c. 5, which forbids devises of lands to bodies politic and 

 corporate. Exceptions to this statute have been introduced by the 

 43 Geo. III. c. 107, and 43 Geo. III. c. 108, which authorise dev 

 lauds to the governors of Queen Anne's Bounty, and for the erection 

 or repair of churches or chap 1 "t churchyard* or 



of the residence or glebe for ministers of the Church of England. 

 Alienage cannot be properly called on incapacity to tak.- by devise, as 

 the devised lands remain in the alien till office found, v. in-u tin 

 in the crown. By the 9 Geo. II. c. 36, no lauds or personal estate to 

 be laid out in the purchase of or charged on land can be given < 

 charitable use by way of devise, [MORTMAIN.] By the 40 Geo. 111. 

 c. 98, no disposition of property can be made by will or otherwise, so 

 as to accumulate the income for a longer period than for twenty-one 

 years after the death of the settlor, or during certain mi- 

 [ACCUMULATION] ; and by what U called the rule against perpetuities, 

 no property can be settled by deed or will so as to be inalienable for 

 more than a life or lives in being, and twenty one years afterwai 



Before the 1 Viet c. 26, wills of personal estate might even be mm- 

 cu]>ative, that is to say, might be declared by the testator without 

 writing before witnesses, provided they were made in conformity with 

 the directions contained in the 19th section of the Statute of i 

 c2'.> Car. II. c. 3). A will of freehold lands of inheritance was re. 

 to be executed in the manner prescribed by the 5th section of the 

 Skvtute of Frauds, which required it to be s iyned by the party d. 

 or by some other person in his presence and by his express dir- 

 and to be attested and subscribed in the presence of tli 

 three or more credible witnesses. The term " credible," which gavo 

 rise to much discussion under the old law, is omitted in the 1 Viet. c. 

 26, and it is enacted in the 14th section that no will is to be v 

 account of the incompeteucy of any atte-ting witness. I'.y lli' 

 section gifts to attesting witnesses or t . r husbands are 



declared void. This is an extension of the 25 Geo. II. c. I'li. which 

 related only to wills which at that time required the attest) i 

 witnesses, that is to say, to wills of real estate. The words as t 

 or husbands are new. The signature of the testator was not re 

 for the validity of a will of personalty or of copyholds, whether the 

 instrument was in his own hand-writing or in that of another. I 

 the flth section of 1 Viet. c. 26, no will, win 

 estate, is to be valid unless it bo in writing, and signed a 

 end by the testator or by some person in hi 



direction; and such signature must be made or acknowledged by the 

 testator in the presence of two or more witnesses present at tli 

 time, and such witnesses must, attest and subscribe the will in the 

 presen 1 .but no particular form of ai neces- 



sary. Section 10 .11 appointim-nts made by will arc to be 



executed in the manner above prescribed, and are to be valid when HO 

 executed notwithstanding the non-observance of any otli. - 

 required by the power under which the appoint ide, l!y tin- 



llth and 12th sections, it is declared that the act i 



d service, or of matin- -. Inch are to 



remain subject to i- -le respcriiiu ih. MI by 



the 11 Qeo. IV. and 1 Will. IV. e. -Jo. Questions formerly arose as to 

 what was a publication of a will, but section l:i of 1 enacts 



that no other publication shall be requisite than execution in the 

 manner prescribed. 



It is the rule in Kngland, that a will of lands is regulated by thr 

 law of the country in which the lands are. The place where and the 

 language in whi.-li sueh a will is written are unimportant: the 1- 



and written in I'Yeneh, of lands in England, i 



which when translated into English would p 



lands in qin:tion, .md nn>.-! I-., evented m-cni-diiif; t" 



required by the English law. Lands in England which belong to an 



