WILL AND TESTAMENT. Before the passing of the 32 Hen. VIII. c. 7, commonly called the Statute of Wills, and the 34 & 35 Hen. VIII. c. 5, there was no general testamentary power of freehold land in England, but the power of making a will of personal property appears to have existed from the earliest. period. Yet this power did not originally extend to the whole of a man's personal estate ; but a man's goods, after paying his debts and funeral expenses, were divisible into three equal party, one of which went to his children, another to his wife, and the third was at his own disposal. If be had no wife or no children, be might bequeath one half, and if he had neither wife nor children, the whole was disposable by will (2 131. ' Comm.,' 522, 3I r. Kerr's edit. ; Fitzlierbert, ' Nat. Brev.,' 122). The law, however, was gradually altered in other psrta of England, and in the province of York, the principality of Wales, and in the city of London more lately by statute, so as to give a man the power of bequeathing the whole of his personal property. At present by the 1 Vict. c. 2G, for the amend ment of the law with respect to wills (whereby the former statutes there enumerated, with respect to wills are repealed, except so far as the same acts or any of them respectively relate to any wills of estates I sir (mire vie to which this act does not extend), it is enacted that it thrill be lawful for every person to devise, bequeath, and dispose of, by his will, executed as required by that act, all real and personal estate which he shall be entitled to either at law or in equity at the time of his death. Great alterations have been introduced into the law of wills by this statute ; but as it does not extend to any will made before the 14 of January, 1833, it is necciseary to consider the law as it. stood previous to the act, In general all persons are capable of disposing by will of both real and personal estate who have sufficient understanding. The power of the king to make a will is defined by the 39 & 40 Geo. II. c. s. 10.
By the former Statute of Wills, married women, persons within the ese of twenty-one years, idiots and persons of non sane memory, were declares! incapable of making wills of real estate. These disabilities also applied to a bequest of personal estate, except that infanta of a certain age, namely, males of fourteen and females of twelve, might dispose, by will, of personalty; and that by the 12 Car. II. c. 21, s. 8, a father under twenty-one might, by a will attested by two witnesses, appoint guardians to his children. But, by the second section of the Wills Act, no will made by any person under the ago of twenty-one years is valid ; and no will made by any married woman is valid, except such a will as might have been made by a married woman before the peening of the new act. The disability of a married woman is not absolute. She may make a will of her personal property if her husband consents to that particular will, and it will be operative if he survive her. The validity of a lunatic's will depends noon the state of
his mind at the time of making it. Persons born deaf and dumb are to be incapable of making a will, but the presumption may rebutted by evidence. Blindness and deafness alone do not produce incapacity. Devises of lands by aliens are at least voidable, the crown being entitled, after office found, to seize them in the hands of the devisee, as it might have done in those of the alien during his life.
Previously to the act I Viet. e. 26, the general power of testators was subject to exceptions. Customary freeholds and copyliolds were not within the Statute of Wills, and therefore, unless where devisable by special custom, could in general he passed only by means of a sur render to the use of a will. By the 55 Geo. III. c. 1112, the want of a surrender was supplied in cases where it was a mere form, but the act did not apply to cases where there was no custom to surrender to the use of a will, nor to what are called customary freeholds. A devisee or surrendereo of copyliolds could not devise before admittance, though an heir-at-law might. Conditions were not devisable, nor were rights of entry or action, nor contingent interests when the person to be entitled was not ascertained : lands acquired after the execution of the will also did not pass by it; but by section 3 of I Viet. c. 26, the power of disposition by will extends to all real and personal estate, and to all estates, interests, and rights to which the testator may be entitled at the time of his death, though acquired subsequently to the execution of his will. There is no restriction as to the pet-sons to whom devises or bequests may be made, except under the 34 & 35 Hen. VIII. c. 5, which forbids devises of lands to bodies politic and corporate. Exceptions to this statute have been introduced by the 43 Geo. III. es 107, and 43 Gee. HI. e. 108, which authorise devises of lands to the governors of Queen Anne's Bounty, and for the erection or repair of churches or chapel's, the enlargement of churchyards or of the residence or glebe for ministers of the Church of England. Alicnage cannot be properly called an incapacity to take by devise, as the devised lands remain in the alien till office found, when they vest in the crown. By the 9 Geo. II. c. 36, no lands or personal estate to be laid out in the purchase of or charged on land can be given to any charitable use by way of devise. [31onnuast.] By the 40 GOO. 111. c. 98, no disposition of property can be made by will or otherwise, so as to accumulate the income for a longer period than for twenty-one years after the death of the settler, or during certain minorities [Accusicisasios]; and by what is called the rule against perpetuities, no property can be settled by deed or will so as to be inalienable for more than a life or lives in being, and twenty-one years afterwards.