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of devise granted by the Statutes of Henry VIII extended to the whole of the lands of which previously only two parts had been devisable. Digby's History of the Law of Real Property (5th Ed.) 377-379.

PAGE ON THE HISTORY OF TESTAMENTS OF PERSONAL
PROPERTY

§ 17. TESTAMENTS IN PRE-NORMAN TIMES.-The testament passing personal property has a less complicated history.

In pre-Norman times the power to dispose of personal property by testament was firmly established. It is not clear whether this power applied to the whole of testator's personal property, or to a part only.

§ 18. DOCTRINE of ReasonabLE PARTS.-By Glanvil's time (A. D. 1187) it was settled that the power of disposing of personal property by testament had limits in some cases. If the testator left neither wife nor children, he could dispose of all of his personal property by testament; but if he left either wife or children, he could dispose of one-half of his personal property by testament, the other half going to the surviving wife or children, as the case might be; while if he left both wife and children, he could dispose of but a third of his personal property (known as the "dead's part"). One-third of his personal property (known as the "wife's part") went to his wife; the remaining third (known as "child's part" or "bairn's part") going to the children.

There has been some dispute whether the rules above stated were the common law of England or only local customs. The weight of authority is that they were the common law of England, and were in force in Glanvil's day over the whole of England.

§ 19. POWER OF TESTATOR TO DISPOSE OF HIS ENTIRE PERSONAL PROPERTY. This rule ceased to be the law in a great part of England so gradually that Blackstone says that it is impossible to trace out when first this alteration began, and so thoroughly that it was possible with some show of truth to deny that it ever had been the law. It was established by the reign of Charles I (1625-1649) that the general rule in England was that testator could dispose by testament of any or all of his personal property, except where the relics of the old law still lingered, under the name of local custom, as in Yorkshire and London. These so-called local customs were one by one uprooted by Parliament in a series of repealing statutes, and finally the general statute, 1 Vict. c. 26 (1837), gave the testator the general power of disposing of the whole of his personal property.

§ 157. HISTORY OF THE LAW OF THE EXTRINSIC ELEMENTS OF WILLS.- * * * Testaments were governed by the ecclesiastical law. Originally the ecclesiastical courts enforced even the oral • wishes of the decedent; but in course of time oral wishes were enforced

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only in certain specified cases. The testament, except in the cases where a nuncupative will was enforced, was required to be in writing. No further formalities were required. If testator assented to the instrument, it was not necessary that he sign it, or that it be subscribed by attesting witnesses. It was not necessary that the testament be a holograph; that is, in testator's handwriting. An unsigned paper, not in testator's handwriting, and not signed by him, could be probated as his testament, if the evidence showed that he intended it as his testament.

The Statute of Frauds, already quoted, did not affect testaments. The danger of fraud, in the informal instruments which were upheld by the courts, became so evident that statutes were passed in England in the first half of the nineteenth century (1 Vict. c. 26, sec. 9), and in the different states of this country at different dates, imposing upon testaments of personalty substantially the formalities required to a will of lands.1 The original freedom of wills and testaments from set formalities persisted longer as to testaments of personalty than as to wills of realty. Indeed, in some jurisdictions testaments of personalty are still less formal instruments than wills.

Page on Wills, §§ 17, 18, 19, 157.

PAGE ON WILLS AND TESTAMENTS IN THE UNITED STATES

§ 20. HISTORY OF THE LAW OF WILLS AND TESTAMENTS IN THE UNITED STATES.-The English colonists who settled the Atlantic coast of what is now the United States in the seventeenth century brought with them the common law of England as modified by the Statute of Wills. Accordingly, where not expressly limited by local statute, the power of a testator to dispose of his realty, as well as his personalty, by last will and testament, has always been recognized in the courts of the United States. Not only was American law from the first held to be modified by the Statute of Wills, but the feudal system was never generally held to be a part of our law as being unsuited to our institutions. The law of wills in the United States is thus based upon English law, and continuous with it in such states as were founded by the English.

1 "In England, prior to the statute of Victoria, wills of personal estate were not required to be attested or signed by the testator, and drafts of wills, or written memoranda, made by or for the testator, were admitted to probate in the ecclesiastical courts as valid written wills, not nuncupative. By that statute, and by statutes in the various states of the Union, wills of real and personal property were placed on the same footing as regards the formalities of their execution and attestation." 1 Underhill on the Law of Wills, § 175, p. 241, note 5.

In the South and West of the United States, however, the original European stock was not English, but French and Spanish. In these sections, therefore, marked traces of Roman law, as modified by the French and Spanish, are to be found. Louisiana has put into statutory form the French law, which in turn was based upon the Roman. In California and some of the territories adjoining on the southeast the law of wills is in part of Spanish origin. From these states statutes have been adopted in some other states.

The net result may be said to be that in the greater part of the United States the law of wills is of pure English origin, modified by modern statutes, showing some influence of Spanish and French law in some of the Southern and Western states; while in Louisiana the law of wills is of French-Roman origin, gradually yielding in some respect to the influence of the remaining common-law states.

Page on Wills, § 20.

CHAPTER III.

TESTAMENTARY CAPACITY AND INTENT

SECTION 1.-INFANCY

"And be it further enacted that no will made by any person under the age of twenty-one years shall be valid."-Wills Act, 7 Wm. IV & 1 Vict. c. 26, § 7 (1837).

"It is not questioned that, by the Act of 1840, a person under the age of twenty-one, is incapable of making a will. Hartley's Dig. art. 3252. If, therefore, the testator was a minor, as alleged, the will was void for the want of capacity to make it."-Wheeler, C. J., in Moore v. Moore, 23 Tex. 637, 638 (1859).1

SECTION 2.-COVERTURE

"At common law, a married woman could not devise real estate, and was incapable of disposing of her chattels by will, without the consent of her husband."-Stoutenburgh v. Hopkins, 43 N. J. Eq. 577, 579, 12 Atl. 689, 690 (1887).2

1 "Lord Coke [Co. Lit. 89b, note 83] lays it down as an established rule of the common law that an infant of eighteen may execute a valid will of personalty, though no infant under the age of twenty-one had capacity to devise lands. [See St. 34 & 35 Hen. VIII, c. 5, § 14.] But the rules which were recognized in the English ecclesiastical courts, where wills of personal property were probated, were different. The rule of the civil law that infants who had attained the age of fourteen, if males, and twelve, if females, had capacity to execute wills of personal property, was adopted in these courts. The judgment of the probate court admitting the will to probate being conclusive as to the capacity of the testator, the rule of the civil law was agreed to, if not affirmed, by the courts of common law and in the jurisdiction of the chancellor." 1 Underhill on the Law of Wills, 170, § 120. Local statutes should be consulted.

2 On the effect of coverture on testamentary capacity at common law, see 1 Jarman on Wills, *39-42, and 57 Am. Dec. 340–349, note. Local statutes should be consulted. On the right of a wife, under a statute removing the disabilities of married women, to devise property held by her husband and herself as joint tenants, see 7 L. R. A. (N. S.) 701, note. As late as 1899 the Idaho statutes were construed to empower married women to make witnessed wills, but not unwitnessed holographic wills. Scott v. Harkness, 6 Idaho, 736, 59 Pac. 556 (1899).

SECTION 3.-ALIENAGE

"Aliens are capable of acquiring, holding, and transmitting movable property, in like manner as our own citizens, and they can bring suits for the recovery and protection of that property."-2 Kent's Com. *62. "Johnson could and did, although an alien, acquire an estate in fee in the lots, by the conveyances of White and McDowell, subject only to be divested by the government upon office found. *

"Aliens, in by purchase, must be deemed citizens in any controversy with other citizens. It is the sovereign power only where the real estate is situated that has the right to disturb the alien in his title and possession; it is a mere matter of policy that the government may oust him, pertaining solely to the state, over which the citizen has not, nor ought he to have, any control.

"Whatever title Johnson acquired to the lots by purchase, the better opinion seems to be he could convey by deed or will, and that his devisees took the same estate he had."

Catron, J., in Williams v. Wilson, Mart. & Y. (Tenn.) 248, 253, 254 (1827).

3

SECTION 4.-CONVICTION OF CRIME

RANKIN'S HEIRS v. RANKIN'S EX'RS.

(Court of Appeals of Kentucky, 1828. 6 T. B. Mon. 531, 17 Am. Dec. 161.) OWSLEY, J. Reuben Rankin was charged with the murder of John Blake, and was indicted for the offense, put upon his trial, found guilty by the verdict of a jury, and sentenced to be hung by the judgment of the court.

Between the time when the sentence of condemnation was pronounced, and the period fixed by the court for his execution, Rankin

3 See 1 Jarman on Wills, *44.

"An alien may acquire lands by purchase, but not by descent; and there is no distinction, whether the purchase be by grant or by devise. In either event, the estate vests in the alien as a defeasible estate, subject to escheat at the suit of the government. He has complete dominion over the estate of which he is thus seized, until office found. * * The ancient rule of the

common law was that an alien could not maintain a real action for the recovery of lands, but he might, in such action, defend his title against all persons but the sovereign. It has been held, however, in North Carolina, if not in other states of the Union, that he may maintain ejectment." Judge, J., in Harley v. State, 40 Ala. 689, 695 (1867).

4 Part of the opinion is omitted.

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