§ 10. Who May Devise. All persons, except idiots, persons of unsound mind and infants, may devise their real estate, by a last will and testament, duly executed, according to the provisions of this article.

Formerly 2 R. S. 56, § 1:

§ 1. All persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions of this Title.35

36

37

Comment. This section of this act is substantially the same as the Revised Statutes, which in turn made little change in this section as it stood in the New York statutes, re-enacting the English Statutes of Wills and the Statute of Frauds. This particular section is taken indirectly from 34 and 35 Hen. VIII, chap. 5, § 14, which is as follows: "And it is further declared and enacted by the authority aforesaid That wills or testaments made of any manors, lands, tenements or other hereditaments by any woman covert or person within the age of twenty-one years, idiot, or by any person de non-sane memory shall not be taken to be good or effectual in the law." 38

Before proceeding to the further consideration of this particular section it would be well for the reader to have a clear conception of the development of the Statutes of Wills in New York.

The Statute of Wills in New York. When the English first established a government in the Province of New York it was regularly ordained that the laws established by the subordinates of the imperial authority were not to be inconsistent with the laws of

352 R. S. 56, § I was amended in 1867 by $ 3, chap. 782, Laws of 1867, striking out the words "married women," as chap. 200, Laws of 1848, amended by chap 375, Laws of 1849, had enabled her to devise her real property as if sole. 2 R. S. 56, § I, as amended, was repealed by Decedent Estate Laws of 1909 (see below,

130), and chap. 500, Laws of 1848,

and chap. 375, Laws of 1849 by "Domestic Relations Law" of 1896 and 1909.

36 Chap. 47, Laws of 1787; 1 K. & R. 178; 1 R. L. 364.

37

32 Hen. VIII, chap. 1; 34 & 35 Hen. VIII, chap. 5; 29 Car. II.

38 This is exactly the language of chap. 47, N. Y. Laws of 1787.

England. The Duke of York, who at first held the province as a fief of the Crown from the year 1664 to the date of his accession, February 6, 1685, held it by the tenure of free and common socage and not in capite or by knight service. The duke's patents from the Crown and the formal introduction of English law, by clauses inserted in commissions and instructions from the Crown, served to introduce into New York all the relevant parts of the common law of England and also all the relevant statutes enacted in England prior to the establishment of a local legislature in New York. Among the statutes thus introduced and acted on were the old Statutes of Wills, passed in the reign of Henry VIII.40 These celebrated statutes were always assumed to be in force in New York after 1664, and were constantly acted on in New York until the year 1787. The duke's own laws of 1664, 1665, did not cover this ground. In 1683 the first regular legislature held in New York enacted "that all wills in writing, attested by two credible witnesses shall be of the same force to convey lands as other conveyances.' But this act of 1683 was disallowed by the Crown, and consequently was operative or probationary, as it was called, for a short time only. It was quite unnecessary. No other act in reference to the validity, force or effect of wills or testaments was enacted in New York until after the Revolutionary War, when Messrs. Jones and Varick had, by legislative direction, prepared for re-enactment by the State Legislature all the English acts which had been extended to New York and were proper for re-enactment by the new government.

99 42

The Statute of Frauds (29 Charles II). The professional reader will recall that under the old English Statute of Wills, enacted in the reign of Henry VIII, almost any instrument, however informal, would pass for a will and testament. Neither signature

39 The reader is referred for fuller account of the laws of the Province of New York to this writer's Hist. of the Law of Real Prop. in N. Y.; also to his chap. II, Introduction to Real Prop. Law, and also to his Introductory chapter of the Grolier reprint of Bradford's N. Y. Laws of

1694, and the chapters on Legal and Const. History of N. Y., in Memorial Hist. of N. Y. City.

40 32 Hen. VIII, chap. 1; 34 and 35 Hen. VIII, chap. 5.

411 N. Y. Col. Laws, 6 et seq 42 I N. Y. Col Laws, 114.

43

nor even sealing were then necessary to authenticate a last will and testament under those statutes. The Statute of Frauds (29 Charles II [A. D. 1677]) corrected this to some extent and exchanged the informality for something more consistent with the gravity of the occasion. That statute provided that after June 24, 1677, all devises and bequests of any lands or tenements were to be in writing, signed by the testator or by some other in his presence and by his express direction, and to be attested and subscribed by three or four credible witnesses. But wills of personalty were left unaffected by this statute. The English Statute of Frauds, although enacted after New York was a province of England, seems to have been always regarded as in force in New York, and it was so treated by the State Legislature in the year 1787. Thus under the English Statutes of Wills and Frauds all the socage lands in New York were devisable after the year 1664.

+4

Old New York Statute of Wills. In 1787 Messrs. Jones and Varick prepared a "Wills Act" for the State which, according to the legislative direction for their revision, embodied in substance the English acts, above referred to as in force in the Province of New York.46 The English statutes expressly gave all persons except married women, infants, idiots and persons of non-sane memory, power to dispose of their property (except to bodies politic), including incorporeal as well as corporeal hereditaments.47 Estates pur autre vie were first made devisable by special enactment of the Statute of Frauds.48 Both of these provisions passed thence into the New York Act of 1787, and into the subsequent revisions of the Wills Act by Kent and Radcliffe in 1801, and by Van Ness and Woodworth in 1813. Thus it will be perceived that up to the enactment of the Revised Statutes of 1830 the old English acts had undergone very little material change. Consequently in all the cases turning upon them before 1830, as it will readily be observed from

V.

43 Bacon Abr. "Wills and Testaments," D; I Powell on Devises, chap. II; Wadhams American Home Miss. Soc., 12 N. Y. at p. 419. 441 R. L. 364, § 16; Public Admr. v. Watts, I Paige, 347; Morrell v. Dickey, Johns. Ch. 153.

45 Fowler's Pers. Prop. Law (2d ed.), pp. 133, 135. The Stat. 29, Charles II, will be found in the

same place, Appendix IV.

46 1 J. & V. 93.

47

17 34 and 35 Hen. VIII, chap. 5. 48 29 Car. II.

the old reports of this State, both courts and counsel relied almost entirely on English cases in any exposition of the act of 1787. In other words, up to 1830, the law of New York and the law of England were in substantial accord, in so far as the law concerned wills and testaments.*9

The Revised Statutes and the Consolidated Laws. The Revised Statutes made many changes in the old law of wills and testaments, in force in New York, between the years 1664 and 1830.50 The former General Laws of 1896 did not touch or incorporate the portion of the Revised Statutes relating to wills, but left it standing in the unrepealed part of the Revised Statutes. The Consolidated Laws of 1909 have, however, repealed and re-enacted the part of the Revised Statutes relating to wills in article 2 of the Decedent Estate Law, which is now in this volume the subject of our consideration. Such, in brief, is the history of the statutes of wills and testaments in New York.

Statutes Incomplete. A reference to the various statutes of wills, first passed in England, and ultimately adopted and amended in the State of New York, will demonstrate that they presuppose a body of testamentary law. The statutes are singularly incomplete without reference to some supplementary system. In England that supplementary system was furnished by the canons, practice, and procedure of the ecclesiastical courts. In New York we must have some reference to the ecclesiastical law of England. The statutes of Henry VIII, re-enacted in New York, assume that a last will and testament is familiar. The Statute of Frauds likewise re-enacted here prescribes only the ceremonial for execution of wills of freeholds. The Revised Statutes is only a revision of existing statutes with some innovations concerning wills of personalty. All the statutes taken together regulate merely the formal part of the act of testamentation or, in other words, the instru

49 The Public Admr. v. Watts, I Paige, 347; Stewart's Ex'r v. Lispenard, 26 Wend. at p. 297, Brinkerhoff v. Remsen, 8 Paige, 488, 491; Jauncey v. Thorne, 2 Barb. Ch. 40, 53; preliminary note of revisers with

chap. VI, pt. II, R. S., Appendix I, infra.

50 Watts v. Public Admr., 4 Wend. 168; Hoysradt v. Kingman, 22 N. Y. 372, 379.

ment which embodies the evidence of the last will, ultima voluntas. Of the great subjective difficulties in reaching the legal conclusion that the instrument is the ultima voluntas or last will of decedent the statutes say little. The law of wills is divided into three principal parts or divisions: I. Legal ability to testamentate; II. The external form of the instrument of testamentation; III. The internal form or contents. The Revised Statutes and its present reenactment, the Decedent Estate Law, contain only outlines of the whole body of testamentary law, but outlines which are controlling whenever relevant. Section 10 of the Decedent Estate Law, now under consideration, is concerned with the first part of testamentary law, the legal ability to testamentate.

It is because the law relating to wills is public, rather than private, law that the State regulates at all this particular act connected with the final devolution of title to property. Other devolutions of title to property are generally left to the common law, and statutes interfere as little as is consistent with an assurance of fair dealing among men. By the Roman law persons lacking in self-consciousness and the use of reason (furiosi) could not testamentate : "furiosi nulla voluntas est." Among "furiosi" were all species of lunatics, persons with corporal infirmities affecting freedom of the will, and the intoxicated, which possibly included those influenced by an unreasonable or intolerable anger. The various statutes of England and New York deal only generally with this department of testamentary law. The case law is, however, much more refined.

51

Who May Now Devise by Statute. Section 10 of the Decedent Estate Law52 now states what persons may devise. Under that section all persons may devise except idiots, persons of unsound mind, and infants. The permission of the statute is general; the exceptions only are specific. It will be found that the early Statute of Wills, Coke, and all early English law dealing with legal capacity, are indebted to the Roman or civil law. Coke defines "non compos mentis." 53

51 Fr. 16, § 1; D. 28, 1.

52 Supra, p. 50.

53 Co. on Litt., 247a.