ability lasts (20). To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void (21). 2. Such persons as are intestable for want of liberty or Prisoners. freedom of will, are, by the civil law, of various kinds; as prisoners, captives, and the like (s) (22). But the law of England does not make such persons absolutely intestable; but only leaves it to the discretion of the court to judge, upon the consideration of their particular circumstances of duress, whether or no such persons could be supposed to have liberum animum testandi. And, with regard to feme- Feme-coverts. (8) Godolph. p. 1, c. 9. sions should be granted to review any judgment or decree made by virtue of that act. (17) See Swinburne, pt. 2, sect. 4. An idiot, according to juridical definition, is one who, from his nativity, by a perpetual infirmity, is non compos mentis. (Co. Litt. 246 a.) (18) See Swinburne, pt. 2, sect. 5. Old age alone does not justify a presumption of the party's incapacity; (Lewis v. Pead, 1 Ves. jun. 19;) but, when accompanied by great infirmity, it will be a circumstance of weight in estimating the validity of any transaction; (Griffiths v. Robins, 3 Mad. 192;) for, that hypothetical disability which is always supposed to exist during infancy, may really subsist when the party is of age, and even a much greater degree of incapacity, though the case be not one of insanity, or of lunacy, strictly speaking. (Sherwood v. Saunderson, 19 Ves. 283; Ridgway v. Darwin, 8 Ves. 67; Ex parte Cranmer, 12 Ves. 449.) (19) See Swinburne, pt. 2, sect. 6. A commission of lunacy has issued against a party who, when he could be kept sober, was a very sensible man; but whose constant habits were those of intoxication. (Anonym, cited in 8 Ves. 66.) And in the case of Rex (20) "But, if a person of sound (21) See ante, p. 290, note; and coverts, our law differs still more materially from the civil. Among the Romans there was no distinction; a married woman was as capable of bequeathing as a feme-sole (t). [ *498] But with us a *married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 & 35 Hen. VIII. c. 5, but also she is incapable of making a testament of chattels, without the license of her husband (23). For all her personal chattels are absolutely his; and he may dispose of her chattels real, or shall have them to himself if he survives her: it would be therefore extremely inconsistent, to give her a power of defeating that provision of the law, by bequeathing those chattels to another (v). Yet by her husband's license she may make a testament (u); and the husband, upon marriage, frequently covenants with her friends to allow her that license: but such license is more properly his assent; for, unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand hath given her permission to make a will (w). Yet it shall be sufficient to repel the husband from his general right of administering his wife's effects; and administration shall be granted to her appointee, with such testamentary paper annexed (x). So that, in reality, the woman makes no will at all, but only something like a will (y); operating in the nature of an appointment, the execution of which the husband by his bond, agreement, or covenant, is bound to allow. A distinction similar to which we meet with in the civil law. For, though a son who was in potestate parentis could not by any means make a formal and legal testament, even though his father permitted it (2), yet he might, with the like permission of his father, make what was called a donatio mortis causa (a). The queen consort is an exception to this general rule, for she may dispose of her chattels by will, without the consent of her lord (b): and any feme-covert may make (t) Ff. 31, 1, 77. (v) 4 Rep. 51. (u) Dr. & St. d. 1, c. 7. (w) Bro. Abr. tit. Devise, 34; Stra. 891. (x) The King v. Bettesworth, T. 13 Geo. II. B. R. (y) Cro. Car. 376; 1 Mod. 211. (z) Ff. 28, 1, 6. (a) Ff. 39, 6, 25. (b) Co. Litt. 133. (23) See Vol. I. p. 444, and ante, p. 375, with the notes thereto. her will of goods; which are in her possession in auter droit, as executrix or administratrix; for these can never be the property of the husband (c): and, if she has any pin-money or separate maintenance, it is said she may dispose of her savings thereout *by testament, without the control of her [* 499 ] hnsband (d). But, if a feme-sole makes her will, and afterwards marries, such subsequent marriage is esteemed a revocation in law, and entirely vacates the will (e) (24). felons. 3. Persons incapable of making testaments, on account of Traitors and their criminal conduct, are, in the first place, all traitors and felons, from the time of conviction; for then their goods and chattels are no longer at their own disposal, but forfeited to the king (25). Neither can a felo de se make a will of goods Felo de se. and chattels, for they are forfeited by the act and manner of his death; but he may make a devise of his lands, for they are not subjected to any forfeiture (f) (26). Outlaws also, Outlaws. though it be but for debt, are incapable of making a will, so long as the outlawry subsists, for their goods and chattels are forfeited during that time (g) (27). 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 of a worse stamp,) by the common law their testament may be good (h) (28). And in general the rule is, and has been so at least ever since Glanvil's time (j) quod libera sit cujuscunque ultima voluntas. Let us next, thirdly, consider what this last will and tes- Definition of a tament is, which almost every one is thus at liberty to make; or, what are the nature and incidents of a testament. Tes (c) Godolph. 1, 10. (d) Prec. Chan. 44. (e) 4 Rep. 60; 2 P. Wms. 624. (f) Plowd. 261. (g) Fitz. Abr. tit. Descent, 16. will. taments, both Justinian (i) and Sir Edward Coke (k) agree to be so called, because they are testatio mentis: an etymon which seems to savour too much of the conceit; it being plainly a substantive derived from the verb testari, in like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology; "voluntatis nostræ justa "sententia de eo, quod quis post mortem suam fieri veliť” (l): which may be thus rendered into English, "the legal de[ *500] "claration of a man's intentions, *which he wills to be per"formed after his death" (29). It is called sententia, to denote the circumspection and prudence with which it is supposed to be made: it is voluntatis nostræ sententia, because its efficacy depends on its declaring the testator's intention, whence in England it is emphatically stiled his will: it is justa sententia; that is, drawn, attested, and published, with all due solemnities and forms of law: it is de eo, quod quis post mortem suam fieri velit, because a testament is of no force till after the death of the testator. Wills are of two sorts-written, and verbal or nuncupatire. Regulations, as to nuncupative wills, by the statute of frauds. These testaments are divided into two sorts; written, and verbal or nuncupative; of which the former is committed to writing, 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. A codicil (30) codicillus, a little book or writing, is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as part of, a testament; being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former dispositions of the testator (m). This may also be either written or nuncupative. But, as nuncupative wills and codicils (which were formerly more in use than at present, when the art of writing is become more universal) are liable to great impositions, and may occasion many perjuries, the statute of frauds, 29 Car. II. c. 3, hath laid them under many restrictions; (i) Inst. 2, 10. (k) 1 Inst. 111, 322. (1) Ff. 28, 1, 1. (m) Godolph. p. 1, c. 1, s. 3. (29) See Swinburne, pt. 1, sections 3 and 4. (30) See Swinburne, pt. 1, sect. 5 See also ante, p. 379, note. except when made by mariners at sea, and soldiers in actual service. As to all other persons, it enacts: 1. That 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 (31); and unless the same be proved to have been so done by the oaths of three witnesses at the least; who, by statute 4 & 5 Ann. c. 16, must be such as are admissible upon trials at common law. 2. That no nuncupative will shall in anywise be good, where the estate bequeathed exceeds 301. unless proved by three such witnesses, present at the making thereof, (the Roman law requiring seven (n),) and unless they or some of them were specially required to bear *witness thereto by the testator himself; and unless it [ * 501 ] was made in his last sickness, in his own habitation or dwelling-house, or where he had been previously 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 were put in writing within six days. Nor shall it be proved till fourteen days after the death of the testator, nor till process hath first issued to call in the widow, or next of kin, to contest it if they think proper. Thus hath the legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse (32); and is hardly (n) Inst. 2, 10, 14. (31) But if a legacy given by a written will has lapsed, or is void, quatenus the subject of such legacy, there is no written will, and a nuncupative codicil is quasi an original will for so much, not an alteration of that disposition which had previously become determined, or which was in its creation void. (Stonywell's case, T. Raym. 334). And the act which says that no written will shall be repealed or altered by a nuncupative codicil, does not prohibit the disposition, by such codicil, of that which is not disposed of by the written will. (32) Nuncupative wills are not favourites with courts of probate, though, if duly proved, they are equally entitled to be pronounced for with written wills. Much more, however, is requisite to the due proof of a nuncupative will than of a written one, in several particulars. In the first place, the provisions of the statute of frauds must be strictly complied with, to entitle any nuncupative will to probate. Consequently, the absence of due proof of any one of these provisions (that enjoining the rogatio testium, or calling upon per |