WILL. 



If a man devifeth all his lands for payment of his debts, 

 and purchafeth lands afterwards: the lord keeper faid he 

 would decree a fale, though there were no precedent articles. 



2 Cha. Ca. 144. ^ . . -r ,1 . 



If a man hath a leafe, and difpofeth of it fpecificaUy by 

 his wiU ; and after furrenders it and takes a new leaie, and 

 after dies ; the devifee (hall not have this laft leafe, becaule 

 this was a plain countermand of his will. Goldf. 93. 



But in the cafe of Stirling and Lydiard, Nov. 21, 1744, 

 where a man devifed all and Angular his leafehold eftate, 

 goods, chattels, and perfonal eftate whatfoever, and after- 

 wards renewed a leafe ; it was held by the lord chancellor 

 Hardwicke clearly, that the leafehold eftate pafTed by the 



If a man devifeth a term for years, which he hath not at 

 the time of the devife, but purchafeth fome time before his 

 death ; Holt chief juftice doubted whether this would be 

 good. But Mr. Peere Williams fays, that notwithftanding 

 the doubt which the court of king's bench feems to have 

 had in that caf», it hath been clearly held to pafs by fuch 

 a will. 3 P. Wms. 169. 



Wills, Perfons capable of making. Every perfon hath 

 full power and liberty to make a will, that is not under 

 forae fpecial prohibition by law or cuftom : which prohibi- 

 tions are principally upon three accounts ; for want of fuf- 

 ficient difcretion ; for want of fufficient liberty and free 

 will ; and on account of criminal conduft. 



In the firft clafs are to be reckoned infants, under the 

 age of fourteen if males, and twelve if females ; which is the 

 rule of the civil law. By ttatute 34 & 35 Hen. VIII. 

 cap. 5. wills or teftaments made of any manors, lands, tene- 

 ments, or other hereditaments, by any perfon within the 

 age of twenty-one vears, (hall not be taken to be good or 

 effeftual in law ; for until that time, by the common laws 

 of this realm, they are accounted infants. (Swinb. 74.) 

 But by cuftom in particular places, they may devife lands 

 before the age of twenty-one. (God. O. L. 21. Wentw. 

 24.) But no cuftom of any place can be good, to enable a 

 male infant to make any will before he is fourteen years of 

 age. (Law of Exec. 153.) If the teftator is not of fuf- 

 ficient difcretion, whatever be his age, that will overthrow 

 his teftament. Accordingly, madmen, or otherwife non 

 compotes, ideots or natural fools, perfons grown childifh by 

 age or diftemper, (uch as have their fenfes befotted with 

 drunkennefs ; all thefe are incapable, by reafon of mental 

 difability, to make any will as long as fuch difability lafts. 

 To this clafs may alfo be referred Tuch perfons as are born 

 deaf, blind, and dumb ; who, as they have always wanted 

 the common inlets of underftanding, are incapable of having 

 anitnum tejlandi, and their teftaments are therefore void. It 

 has been maintained that perfons deaf and dumb, who under- 

 ftand what a teftament meaneth, and that are defirous of 

 making one, may by figns and tokens declare their tefta- 

 ment : and that a blind perfon may make a nuncupative 

 teftament, by declaring his will before a fufficient number 

 of witneffes ; and that he may make hia teftament in writing, 

 provided the fame be read before witneftes, and in their 

 prefence acknowledged by the teftator for his laft will. 

 Swinb. 95, 96r 



Perfons of the fecond defcription are by the civil law of 

 various kinds ; as prifoners, captives, and the like. But 

 the law of England does not make fuch perfons abfolutely 

 inteftable ; but only leaves it to the difcretion of the court 

 to judge, upon the confideration of their pecuhar circum- 

 ftances of durefs, whether they could be fuppofed to have 

 liberum anlmum tejlandi. With regard to feme-coverts, our 

 laws differ ftill more materially from the civil. Among the 



4 



Romans, a married woman was as capable of bequeathing 

 as a feme-fole. But with us, a married woman is not only 

 utterly incapable of devifing lands, being excepted out of 

 the ftatute of wills, 34 & 35 Hen. VIII. cap. 5. but alfo 

 ftie is incapable of making a teftament of chattels, without 

 the licence of her huft)and, who frequently, upon marriage, 

 covenants with her friends to allow her that licence : his 

 affent, therefore, muft be given to the particular will in 

 queftion, without which it will not be a complete teftament. 

 Her will, therefore, operates in the nature of an appoint- 

 ment, the execution of which the hutband by his bond, 

 agreement, or covenant, is bound to allow. The queen- 

 confort is sn exception, for ftie may difpofe of her chattels 

 by will, without the confent of her lord : and any feme- 

 covert may make her will of goods, which were in her pof- 

 feffion in auter droit, as executrix or adrniniftratrix ; for 

 thefe can never be the property of her huft)and : and if ftie 

 has any pin-money or feparate maintenance, it is faid ftie 

 may difpofe of her favings thereout by teftament, without 

 the controul of her huftiand. But if a feme-lole makes her 

 will, and afterwards marries, fuch fubfequent marriage is 

 efteemed a revocation in law, and entirely vacates the will. 



Perfons of the third clafs are, firft, all traitors and felons, 

 from the time of conviftion ; for then their goods and 

 chattels, and all fuch lands, tenements, and hereditaments, as 

 they (hall have in their own right, ufe, or poffcffion, of any 

 eftate or inheritance, at the time of fuch treifon committed, 

 or at any time after, are forfeited to the king. The tefta- 

 ment before made doth, by reafon of the fame convidion, 

 become void both in refpeft of goods, and alfo in refpeft of , 

 lands, tenements, and hereditaments. But if a perfon, at- 

 tainted of treafon, obtain the king's pardon, and be thus 

 reftored to his former eftate, he may make his teftament, 

 and his former teftament is good. (Swinb. 97.) Neither 

 can a felo de fe make a will of goods and chattels, for they 

 are forfeited by the aft and manner of his death ; but he 

 may make a devife of his lands, for they are not fubjefted 

 to any forfeiture. (3 Inft. 55.) Outlaws alfo, though 

 only for debt, are incapable of making a will, fo long as 

 the outlawry fubfifts, for during that time their goods and 

 chattels are forfeited ; but he that is outlawed in an aftion 

 perfonal, may make his teftament of lands, for they are not 

 forfeited. (Swinb. 107.) An outlaw in a perfonal aftion 

 may in fome cafe make executors ; for he may have debts 

 upon contraft, which are not forfeited to the king ; and 

 thofe executors may have a writ of error to reverfe the out- 

 lawry. (Cro. Eliz. 851.) Coke obfepves, that an excom- 

 munication (meaning the greater excommunication) is worfe 

 than an outlawry ; for if a plaintifi", who is an executor, be 

 outlawed, his outlawry cannot be pleaded to difable hire 

 from proceeding in the fuit, becaufe it is in the right of 

 another ; but if he is excommunicated, it is otherwife, be- 

 caufe every msn that converfes with fuch a perfon is excom- 

 municated himfelf (i Inft. 134.); that is, after he is 

 denounced exqpmmunicate, and they are admoniftied not to 

 converfe with him. (Ayl. Par. 266.) As for perfons 

 guilty of other crimes, ftiort of felony, who are by the civil 

 Jaw precluded from making teftaments, (as ufurers, libellers, 

 and others of a wprfe ftamp,) by the common law their tef- 

 taments may be good. 



Will, Nature an4 Incident! of a. Wills or teftaments 

 are divided into two forts, vi%. written and verbal or nun- 

 tupative; of yvhich the former is committed to writing ; the 

 latter depends merely upon oral evidence, being declared by 

 the teftator in extremis before a fufficient number of wit- 

 neffes, and afterwards reduced to writing. A codicil is ? 

 fupplement to a will. 



As 



