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BOOK THE SECOND.

OF THE MAKING, REVOCATION, AND REPUBLICATION OF WILLS

OF PERSONAL ESTATE,

CHAPTER THE FIRST.

WHO IS CAPABLE OF MAKING A WILL OF PERSONALTY.

BEFORE entering upon the subject of this chapter, it may be expedient to remark, that the rules of testamentary law, prevalent in the Ecclesiastical Court, (where alone, as it will hereafter appear, the validity of Wills of personalty can be disputed,) are not different, generally speaking, from the principles held in other Courts (a).

It may be laid down generally, that all persons are capable of disposing of their personal estate by testament, who have sufficient discretion, their own free will, and who have not been guilty of certain offences (). Wherefore there are three grounds of incapacity; 1, the want of sufficient legal discretion ; 2, the want of liberty or free will; 3, the criminal conduct of the party.

This may be the proper place to mention two cases which do not come, in strictness, under any one of these heads. Alien friends, or such whose countries are at peace with ours, may make Wills to dispose of their personal estate, (although being incapable of holding real property, they are of course equally so of devising it) (c); but alien enemies, unless they have the king's license, express or implied, to reside in this

Aliens,

(a) Groom 1. Thomas, 2 Hagg. 434, by Sir John Nicholl. Croker 6. Lord Hertford, 4 Moo. P. C. 339, 366 ; Mitchell v. Thomas, 6

Moo. P. C. 145, by Dr. Lushington.

(6) Swinb. Pt. 2, s. 1.

(c) This incapacity extends to chattels real: Co. Lit. 2, b. But

The King or
Qucen.

or that

country, are incapable of making any testamentary disposition of their property (d).

With respect to the power of the reigning Sovereign to make a Will of his or her personal property ;-it appears by the Rolls of Parliament, that in the sixteenth year of King Richard the Second “the Bishops, Lords, and Commons, assented in full Parliament, that the king, his heirs, and successors, might lawfully make their testaments" (c). And the statute 39 & 10 George III. c. 88, s. 10, enacts, all such personal estate of his Majesty, and his successors respectively, as shall consist of monies which may be issued or applied for the use of his or their privy purse, or monies not appropriated to any public service, or goods, chattels, or effects, which have not or shall not come to his Majesty or shall not come to his successors respectively, with or in right of the crown of this realm, shall be deemed and taken to be personal estate and effects of his Majesty and his successors respectively, subject to disposition by last Will and Testament, and that such last Will and Testament shall be in writing, under the sign manual of his Majesty and his successors respectively, or otherwise shall not be valid ; and that all and singular the personal estate and effects whereof or whereunto his Majesty or any of his successors shall be possessed or entitled at the time of his and their respective demises, subject to such

in Fourdrin v. Gowdey, 3 M. & K.
383, where an alien resident in
England, purchased an equitable
interest in freehold lands, and also
a lease for a long term of years, and
afterwards obtained letters of deni-
zation, which in terms conferred
upon him not only the power of
acquiring lands in future, but of
retaining and enjoying all lands
which he had theretofore acquired ;
Sir John Leach, M. R., held that
he had power to devise the free-
hold and chattel interest in land
which he had purchased previously

to the letters of denization. See stat. 7 & 8 Vict. c. 66 (Act to amend the Lars respecting Aliens).

(d) Wentw. c. 1, p. 35, 11th Edit. Vin. Abr. Devise, G. 17. Bac. Abr. Wills, B. 17.

(°) 4 Instit. 335. Whether kings and sovereign princes can make their testaments, says Godolphin, (Pt. 1, c. 7, s. 4), is resolved in the affirmative : but of what things, is such a questio status, as is safest resolved by a noli me tangere. See also Swiub. Pt. 2, s. 27.

testamentary disposition as aforesaid, shall be liable to the payment of all such debts as shall be properly payable out of his or their privy purse, and that subject thereto, the same personal estate and effects of his Majesty and his successors respectively, or so much thereof respectively as shall not be given or bequeathed or disposed of as aforesaid, shall go in such and the same manner, on the demise of his Majesty and his successors respectively, as the same would have gone if this Act had not been made.”

But it should seem that the Ecclesiastical Court las no jurisdiction to grant any probate of the Will of a deceased Sovereign. On a late occasion (1), an application was made to the Prerogative Court of Canterbury for its process, calling on the Proctor of his Majesty, King George IV., to see and hear an alleged testamentary paper of his late Vajesty King George III. propounded and proved : But the Court refused the application, on the ground that in substance the process was prayed, and a demand adversely made, against the reigning Sovereign; contrary to the established doctrine, that no action or suit, even in civil matters, can be brought against the king: The learned judge, Sir John Nicholl, in the course of his judg. ment, observed, that the history of the Wills of Sovereigns, from Saxon times, from Alfred the Great down to the present day, had been diligently searched and examined; but no instance had been produced of any Sovereign having taken probate in the Archbishop's Court, or of any Sove. reign's Will having been proved there (9) ; nor any instance

(f) In the goods of his late Majesty George III., 1 Add. 255.

(9) One single instance occurs in the Rolls of Parliament of something like a referenec to this jurisdiction in respect of a royal Will. In the 1st of Henry V. it is stated, that Henry IV. having made a Will, and appointed executors thereof, those executors, fearing the assets would be insufficient,

declined to act. It is then recited, that under these circumstances, the effects would be at the disposal of the Archbishop of Canterbury as Ordinary, who should direct them to be sold. But Henry V., instead of allowing the effects to be sold, took to them, and agreed to pay their appraised value. 1 Add. 263. 4 Inst. 335. The only Will of a sovereign deposited in the registry

of any successor of any intestate sovereign coming to the Court for letters of administration ; which the learned judge considered as furnishing decisive evidence that the Court had no jurisdiction whatever therein (1).

SECTION I.

Persons incapable from want of Discretion.

Infants.

In this class are to be reckoned Infants, with respect to whom it is enacted by stat. 1 Vict. c. 26, s. 7, " that no Will made by any person under the age of twenty-one years shall be valid.”

This statute does not extend to any Will made before Jan. 1, 1838: And it is, therefore, necessary to consider the law as applicable to Wills on which the Act cannot operate.

In such cases the doctrine is, that infants who have attained the age of fourteen, if males, and twelve, if females, are capable of making Wills of personal estate. At these ages the Roman law allowed of testaments: and the civilians agree, that our Ecclesiastical Courts follow the same rule (i). And as the Ecclesiastical Court is the judge of every testator's capacity, this case must be governed by the rules of the Ecclesiastical law (). But this doctrine is not sustained by the authority of civilians only: books of considerable authority, written by common lawyers, mention twelve and fourteen for the same purpose (): prohibitions have

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of the Prerogative Court, is the
Will of Henry VIII. That is
understood to be a copy merely,
and there is no appearance of any
probate of it having been taken.
It was probably deposited there
for safe custody, or as a place of
notoriety for such a purpose: 1
Add. 263.

(h) 1 Add. 262, 264, 265.

(*) Swinb. Pt. 2, s. 2, pl. 6. Godolph. Pt. 6, c. 8, s. 8.

(k) 2 Bl. Comm. 497. It must be borne in mind, that with respect to a devise of Lands, by the provision of the Statute of Wills (32 & 34 Men. VIII.) of infants under the age of twenty-one are intestable,

(1) Wentw. Off. Ex. c. 18, p. 389, 14th edit. Touch. 403.

been refused by the King's Bench, when applied for to restrain the Ecclesiastical Court from allowing Wills made at such early ages (m), and there are several instances in which the doctrine has been recognized and adopted in the Court of Chancery (n). These ages are also selected by the law of England as those when infants of the respective sexes shall have the power of choosing guardians (0).

In the case of Arnold v. Earle (P), in the Prerogative Court of Canterbury, the Will of a schoolboy of the age of sixteen in favour of his schoolmaster was established, where no evidence of fraud, improper influence, or control, was shown (9).

But though no objection can be admitted to the Will of an infant of fourteen, if a male, or twelve, if a female, merely for want of age, yet if the testator was not of sufficient discretion, whether of the age of fourteen or four and twenty, that will overthrow the testament ().

No custom of any place can be good to enable a male infant to make any Will before he is fourteen years of age (8).

When an infant hath attained the age above mentioned, he or she may make a Will without and against the consent

a

s

(m) Smallwood v. Brickhouse, 2 Mod. 315. S. C. Show. 201.t. Chancellor of Lichfield, T. Jones, 210. Dalby v. Smith, Comberb. 50. 1 Gibs, Cod. 461.

(n) Hyde v. Hyde, Prac. Chan. 316. S. C. Gilb. Eq. Rep. 74. Anon. Mosely, 5. Ex parte Holyland, 11 Ves. 11.

O Co. Lit. 89, b. note (83), by Hargrave. There are, however, many irreconcileable opinions on the subject, in the books. Lord Coke states 18 to be the age: Co. Lit. 89, b. : and others mention 17, that being the age, when, before the stat. 38 Geo. III. c. 87, an administration during the minority of an executor determined. Others mention 21, because none can be

administrators till that age. And in Perkins four is said to be the age for making a Will of personalty: but this is supposed to be a mere error of the press by omission of the figure X. and most probably XIIII. was the age intended : Swinb. Pt. 2, s. 2, n. (f). Co. Lit. 89, 6, note (83), by Hargrave.

(P) MS. coram Sir Geo. Lee, 5th June, 1758, cited in 4 Burn. E. L. 45, n. (9), by Tyrwhitt. S. C. 2 Cas. temp. Lee, 529.

(9) See also Ames v. Ward, Prer. T. T. 1767, coram Sir Geo. Hay. Ib.

(r) 2 Black. Comm. 497.

(8) Garmyn v. Arstete, 2 And. 12. Godolphin, Pt. 1, c. 8, s. 1. Com. Dig. Devise, H. 2. 4 Burn. E. L. 46.

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