ment with a warrant of attorney invalid.

Wills of seamen made as security for

re-enacted) (c), it is provided, "that no Will of any seaman contained, printed, or written in the same instrument, paper, or parchment, with a warrant or letter of attorney, shall be good or available in law to any intent or purpose whatsoever." Soon after the passing of this statute, the case of Craig v. Lester was decided upon its construction. There Sir Charles Hedges held, and his sentence was confirmed by the Delegates, that the Will was invalid, though executed on a different instrument from the power of attorney (d). This decision, although it may not have gone beyond the spirit of the Act, must, it should seem, be considered as a bold stretch of the words of it.

The case of Craig v. Lester has been followed by numerous others in the Prerogative Court, fully establishing, that debt, invalid: Wills made by mariners as securities for debts, are void (e). But neither the statute nor these decisions must be understood as making the relation of agent and seaman, or the circumstance of the seaman being indebted to his agent, an absolute defeasance of the Will, so that it could, in no case, be valid. The proper result to be deduced is, that when the relation of agent and seaman exists, there must be clear proof, not only of the subscription of the deceased to the instrument, but also of his knowledge of its nature and effect: that wherever it is executed merely as a security for a debt, it shall not operate as a testamentary disposition of the whole

(c) The stat. 9 & 10 W. 3, c. 41, s. 6, was repealed and re-enacted by the stat. 55 G. 3, c. 60, s. 4. The latter statute was itself repealed by the stat. 11 G. 4, & 1 W. 4, c. 20, which last act provides that no Will of any petty officer, seaman, non-commissioned officer of marines, or marine, shall be deemed good or valid in law, to any intent or purpose, which shall be contained, printed, or written in the same instrument, paper, or parchment, with a power of attorney.

(d) Delegates, 11th June, 1714, cited by Sir John Nicholl, in Zacharias v. Collis, 3 Phillim. 189.

(e) Leake v. Harwood, 3 Phillim. 190. Anderson v. Ward, 3 Phillim. 190, cited by Sir John Nicholl. Moore v. Stevens, 3 Phillim. 190, in note (a). Zacharias v. Collis, 3 Phillim. 176. S. C. 1 Cas. temp. Lee, 409. See also Hay v. Mullo, 2 Cas. temp. Lee. 273. Ramsay v. Calcot, ibid. 322. Master v. Stone, ibid. 339.

property: but, on the other hand, though there may be a debt, yet if there be satisfactory evidence that the testator intended to dispose of his property by Will, the instrument shall be valid (ƒ).

The equity of these statutes cannot be extended beyond the Wills of mariners, so as to invalidate the Wills of other persons given to secure debts (g).

generally incapable of making a Will:

With regard to feme coverts, our law differs still more Feme covert : materially from the civil. Among the Romans there was no distinction: a married woman was as capable of bequeathing as a feme sole (h). 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; and such a Will, being considered a mere nullity, will not be admitted to probate in the Ecclesiastical Courts (i): 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 therefore be extremely inconsistent to give her a power of defeating that provision of the law, by bequeathing those chattels to another (k). The stat. 1 Vict. c. 26, has made no alteration in the law with respect to the testamentary capacity of a feme covert; for by sect. 8, it is provided and enacted, that "no Will made by any married woman shall be valid, except such a Will as might have been made by a married woman before the passing of this Act."

Since the husband has no beneficial interest in the personal estate which the wife takes in the character of executrix, and as the law permits her to take upon herself that office, it enables her, in exception to the general rule that a

(f) Zacharias v. Collis, 3 Phillim. 202, 203, 204. See also Deardsley v. Fleming, 2 Cas. temp. Lee, 98. (g) Florance v. Florance, 2 Cas. temp. Lee, 87.

(h) 2 Black. Comm. 497.

(i) Steadman v. Powell, 1 Add. 58. Bransby v. Haines, 1 Cas. temp. Lee, 120. Tucker v. Inman, 4 M. & Gr. 1076.

(k) Andrew Ognell's case, 4 Co. 51, b. 2 Black. Comm. 498.

except of property to which she is entitled in autre droit, as executrix :

Husband may assent to his wife's Will:

he must assent

lar Will:

married woman cannot dispose of property, to make a Will in this instance, without the consent of her husband; restricted, however, to those articles to which she is entitled as executrix (1). The effect of such an instrument is merely to pass, by a pure right of representation to the testator or prior owner, such of his personal assets as remain outstanding, and no beneficial interest which the wife may have in any part of them: and with respect to the assets which may have been received by the feme executrix during the marriage, and not disposed of, they immediately become the husband's property, and are not affected by the Will (m).

As the husband may waive the interest which the law bestows on him, he may empower the wife to make a Will to dispose of her personal estate. Thus a husband may assent to his wife's Will, and such assent entitles the wife's executor to claim such articles of her personal estate, which would have been her husband's as her administrator (n).

But in order thus to establish the Will, a general assent to the particu- that the wife may make a Will is not sufficient; it should be shown that he has consented to the particular Will that she has made (o), and his consent should be given when it is proved (p). He may, therefore, revoke his consent at any time during his wife's life, or after her death before probate (q). But this consent may be implied from circumstances; and if after her death he acts upon the Will, or once agrees to it, he is not, it seems, at liberty to retract his assent, and oppose the probate (r). And when the Will is made in pursuance of an express agreement or consent, it

what is suffi. cient assent:

(1) Scammell v. Wilkinson, 2 East, 552. 1 Roper on Husb. and Wife, 188, 189, 2d edition. Tucker r. Inman, 4 M. & Gr. 1076.

(m) Hodsden v. Lloyd, 2 Bro. C. C. 534, 543. 2 East, 556, 557. 1 Roper on Husb. and Wife, 189, 2d edition.

(n) 1 Roper on Husb. and Wife. 170, 2d edition. Tucker v. Inman, 4 M. & Gr. 1076. As to what such

articles are, see post, Pt. II. Bk. III. Ch. 1. § III.

(0) Rex v. Bettesworth, 2 Stra.

891.

(p) Henley v. Philips, 2 Atk. 49. (q) Swinb. Pt. 2, s. 9, pl. 10. 1 Roper on Husb. and Wife, 170, by Jacob. 4 Burn. Ecc. L. 52. Brook v. Turner, 1 Mod. 211. 2 Mod. 170.

(r) Roper, ubi supra. Accord

is said that a little proof will be sufficient to make out the continuance of the consent after her death (s).

This assent on the part of the husband is no more than a waiver of his rights as his wife's administrator (t). It therefore can only give validity to the instrument, in the event of his being the survivor. Hence it follows, that if he die before his wife, her Will is void against her next of kin, so far as it derived its effect from his consent; and it, therefore, does not pass the right to property bequeathed to her during the coverture (u).

If the circumstances take place before the 1st of January, 1838 (and consequently the case does not fall within the operation of the stat. 1 Vict. c. 26), a widow after the death of her husband may, without any formal republication, recognize her Will made during her coverture; and the instrument, by such a recognition, will operate as a new Will (x). So (though if a will be made before marriage, and the wife survive the husband, the Will does not revive by and upon the mere death of the husband), a woman by recognition, without any formalities, may republish, during her widowhood, a Will that she made when a feme sole, and such Will is then equally valid, as to personalty, as if made in her widowhood (y). But by reason of the stat. 1 Vict. c. 26, no such recognition made on or after the 1st of

ingly in Maas v. Sheffield, Prerog. M. T., 1845, 4 Notes of Cas. 350, S. C. 1 Robert. 364, it was held by Sir H. Jenner Fust, that if, after the death of the wife, the husband does assent to a particular Will, he is bound by that assent. Where a wife made a Will, disposing of a fund over which she had a power, and also of a fund over which she had no power, and made her husband her executor, and he proved her Will generally, Sir L. Shadwell, V. C., held that, as to the latter fund, the Will was valid,

VOL. I.

as being made ex assensû viri: Ex
parte Fane, 16 Sim. 406.

(s) Roper, ubi supra. Brook v.
Turner, 2 Mod. 173. See also Mr.
Fraser's note to Forse and Hem-
bling's case, 4 Co. 61, b.

(t) 1 Roper on Husb. and Wife,

170.

(u) Stevens v. Bagwell, 15 Ves. 156. Roper, ubi supra. Price v. Parker, 16 Sim. 198.

(x) Miller v. Brown, 2 Hagg. 209. Braham v. Burchell, 3 Add. 264.

(y) Long v. Aldred, 3 Add. 48.

E

Will of feme

covert made in

pursuance of

agreement be fore marriage,

or by virtue of

a power:

not available

January, 1838, can be effectual, notwithstanding the Will itself were made before that date (z).

Hitherto the subject has only been considered with respect to cases of Wills, which are merely valid by the husband's consent to waive his rights as administrator. But it often occurs that the Will of a married woman is made in pursuance of an agreement before marriage, or of an agreement made after marriage, for consideration. Wills of married women made under such circumstances fall under the same rules as those made by a feme covert, by virtue of a power (a); concerning which it is thought more advisable to refer the reader to the several able Treatises on that subject, than to enlarge this work by a farther discussion of it (b). It must still be remarked, that although a different rule formerly prevailed, a testamentary appointment of such a nature by a wife cannot now be made available, either at law or equity, probate may be without probate (c). The Ecclesiastical Courts, however, will allow such appointment to be proved without the husband's consent, (the probate being limited to the property comprised in the power) (d), although their former practice was to require the husband's concurrence before they would admit the instrument to probate (e). Formerly the Ecclesiastical Courts did not take upon themselves to enter with any great minuteness into the construction of the powers

without probate:

obtained of

such a Will without husband's consent:

(≈) See post, Pt. 1. Bk. II. Ch. IV, (a) 1 Roper on Husb. and Wife, 170. Tucker v. Inman, 4 M. & Gr. 1077. See also ex parte Tucker, 1 M. & Gr. 519. Car. & M. 82.

(b) 2 Roper, c. 19, s. 3. Sugden on Powers, chap. 3. As to the husband's right to administration cæterorum, see post, Pt. 1. Bk. IV. Ch. III. § VII. Bk. v. Ch. II. § I.

(c) Ross v. Ewer, 3 Atk. 160. Stone v. Forsyth, Dougl. 708. Jenkin v. Whitehouse, 1 Burr. 431. Rich v. Cockell, 9 Ves. 376. 2 Roper, 188, n. (d) by Jacob. Stevens

v. Bagwell, 15 Ves. 139. Sugden on Powers, 332, 4th edit. Tucker v. Inman, 4 M. & Gr. 1049. Tatnall v. Hankey, 2 Moore, P. C. C. 342, 351. Goldsworthy v. Crossley, 4 Hare, 140.

(d) See post, Pt. 1. Bk. IV. Ch. III. § VII.

(e) Tappenden v. Walsh, 1 Phillim. 352. Moss v. Brander, ibid. 254, Roper, ubi supra. See also Boxley v. Stubington, 2 Cas. temp. Lee, 540. Keller v. Bevoir, ibid. 563,