THE TESTATOR'S CAPACITY. He must be of the age of discretion, which, by the com mon law of England, was fixed at twelve in females, and fourteen in males; Swinburne, pt. 2, § 2, p1. 6; 1 Will. Ex. 13; 1 Jarm. Wills 29. This is now regulated by statute, both in England and most of the states. The pe riod of competency to execute a will, in Eng land, is fixed at twenty-one years, and the same rule is adopted in many of the states, and the disposition is strongly manifested in that direction throughout the states ; 3 Jarm. Wills (Randolph & Talcott's ed.) 748, note.
"Sound mind and memory," which con stitute testamentary capacity, may be prop erly described as that condition which would render the testator capable of transacting the ordinary business of life ; Keithley v. Staf ford, 126 Ili. 507, 18 N. E. 740. But it has been held in many cases that the fact of not possessing sufficient mental capacity to en able one to transact the ordinary business of life does not necessarily involve a want of testamentary capacity ; Turner's Appeal, 72 Conn. 305, 44 Atl. 310 ; Crossan v. Crossan, 169 Mo. 631, 70 S. W. 136; Waugh v. Moan, 200 Iii. 298, 65 N. E. 713 ; Stewart v. Lyons, 54 W. Va. 665, 47 S. E. 442; the ability to transact business is not the sole test ; Pete fish v. Becker, 176 III. 448, 52 N. E. 71; and probably the actual rule is fairly stated that if the testator had capacity to transact ordi nary business, he is presumed by law to have testamentary capacity; but incapacity to transact ordinary business is/not necessarily incapacity to make a will ; Hess v. Killebrew, 209 Ill. 193, 70 N. E. 675 ; Whitney v. Twom bly, 136 Mass. 145; and absolutely sound and Perfect mental faculties are not requisite to testamentary capacity ; Ring v. Lawless, 190 Ill. 520, 60 N. E. 881; nor the highest degree of mental soundness; Whitney v. 136 Mass. 145 ; Hamon v. Hamon, 180 Mo. 685, 79 S. W. 422. soundness of mind with respect= ular matters under considiapagon; Delaney v. City of Salina, 34 Kan, .9 Pao, 271. One who has capacity to make a contract is competent to make a will; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; but one may be capable of making a will, and yet incapable of making a contract, or managing his es tate ; Crowson v. Crowson, 172 Mo. 691, 72 S. W. 1065.
Though a will be dictated by testator when entirely competent, it is, none the less in valid if executed by him at a time when he was not of sound and disposing mind ; In re Hoover's Will, 19 D. C. 495.
Aliens. By the common law in England, an alien could not devise or take by devise, real estate; and an alien enemy could not devise personalty until 33 Viet. c. 14, § 2. This rule is now, in the United States, much altered by statute ; 1 Redf. Wills 8-14; 3 Jarm. Wills (Rand. & Talc. ed.) 743, note. Indians, in the absence of statute on the sub ject, are governed by the same law as resi dent aliens ; p. 745 of last citation. See same citation as to convicts, for whom the regulations are mostly statutory. Coverture was a disability in the execution of a will, unless by the consent of the husband ; 2 Bla. Com. 498; 4 Kent 505. But a married wom an could not, even with her husband's con sent, devise land, because she would thereby exclude her heir; otherwise with chattels ; Osgood v. Breed, 12 Mass. 525; Reed v. Blais dell, 16 N. H. 194, 41 Ain. Dec. 722 ; West v. West, 10 S. & R. (Pa.) 445; Van Winkle v. Schoonmaker, 15 N. J. Eq. 384. The disabil ity as to coverture has been largely changed by statute ; 1 Redf. Wills 22-29. Blindness is so far an incapacity that it requires ex press and satisfactory proof that the testator understood the contents of the will, in addi tion to what is required in other cases; 1 Rob. Bed.. 278 ; Ray v. Hill, 3 Strobh. (S. C.) 297, 49 Am. Dec. 647. Deaf and dumb per sons will labor under a similar inconvenience, and especially in communicating with the witnesses, unless they have been educated so as to be able to write ; Whart. & St. Med. Jur. § 13. But the witnesses must, to be present with the testator, be within the pos sible cognizance of his remaining senses ; Richardson, J., in Reynolds v. Reynolds, 1 Spears (S. C.) 256, 40 Am. Dec. 599. Persons deaf, dumb, and blind were formerly esteem ed wholly incapable of making a will ; but that class of persons are now placed upon the same basis as the two former, with only the additional embarrassment attending the defect of another sense; 1 Will. Ex. 17, 18; 1 Redf. Wills 53. A speechless paralytic, who retained his interest in and knowledge of the details of his business, and whose mind was unimpaired up to the time of bls death, was held capable of making a will where his wishes as to the disposition of his property were communicated by negative and affirma tive replies to questions asked him, and, after it had been written, it was read to him item by item, and his assent given by nods of his head ; Rothrock v. Rothrock, 22 Or. 551, 30 Pac. 453.