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but two months were consumed in producing the present impression of the author's volumes, and that the editor contributed his notes during that space of time, amidst the cares and distractions of professional avocations, he trusts that these circumstances will operate as his apology for not having accomplished more.

'The Addenda of references and cases, decided or published after Mr. Williams' work had been struck off, and subjoined by him at the end of the second volume, have been incorporated into his pages, in their appropriate places, according to his several directions.'

The power of bequeathing personal estate seems to have existed from the earliest periods of the history of the English law, that of devising real estate was derived from the statutes of 32 and 34 H. VIII., but in the time of H. II., according to Glanville, a man could only bequeath the one third of his personal estate, the other two thirds being divided equally between his heirs on the one part and his widow, if he left one, on the other. The widow had her writ, de rationabili parte bonorum, against her husband's executor. But now a man has in England the right to bequeath the whole of his personal estate, under customs that had arisen to this effect in a greater part of the kingdom before the statutes of 4 and 5 W. & M. c. 2, and under that and subsequent statutes.

Mr. Williams adopts the old definition of a will derived from the civil law, viz. 'the just sentence of our will touching what should be done after our death,' to which he proposes to add, 'respecting personal estate;' for the reason, he says, that in England a devise is not so much in the nature of a testament as of a conveyance by way of appointment of particular lands to a devisee.' Hence the distinction that has defeated the intended operation of so many wills, viz. that a man can devise those lands only which he has at the time of the date of such conveyance, and no after purchased lands will pass, whereas a will and testament will operate on whatever personal estate a man dies possessed of.' By the English law lands of which the devisor is disseized after the date of the devise, and of which he continues to be disseized until the time of his decease, will not pass under the will. By the revised statutes of New York a devise will operate upon not only all the lands of which the devisor dies seized, if such appears to have been his intention, but also

will transfer to the devisee his interest in respect to lands of which he may have been disseized. The laws of Virginia and Pennsylvania agree with those of New York in the last particular, and that of Kentucky is supposed to be the same. But the rule that a devise does not carry lands purchased subsequently by the devisor, prevails pretty generally in the United States; though the reason on which it was founded in England is not applicable in this country, since lands have in general been considered no less the subjects of disposition by will than chattels, with the distinction that the formalities for devising lands are generally more strict than those requisite for mere chattels. But this distinction arose probably from the importance of requiring evidence of the titles to lands more than from any notion of their being less subject to disposition by the owner to take effect after his decease.

The question has occurred respecting the proceedings under a will made by the King of England. A statute of Richard II. and another of Geo. III. authorize the sovereign to dispose by will of all his private estate.

1

'On a recent occasion, an application was made to the Prerogative Court of Canterbury, for its process, calling on the Proctor of his Majesty, King George the Fourth, to see and hear, an alleged testamentary paper of his late Majesty King George the Third, propounded and proved. But the Court refused the application, on the ground that in substance the process was prayed, and a demand adversely made, against the reigning sovereign: contrary to the established doctrine, that no action or suit, even in civil matters, can be brought against the king. The learned Judge, Sir John Nicholl, in the course of his judgment, observed, that the history of the wills of sovereigns, from Saxon times, from Alfred the Great down to the present day, had been diligently searched and examined: but no instance had been produced of any sovereign having taken probate in the Archbishop's Court, or of any sovereign's will having been proved there: 2 nor any in

1 In the goods of his late Majesty George III., 1 Add. 255.

* One single instance occurs in the Rolls of Parliament of something like a reference to this jurisdiction in respect of a royal will. In the 1st of Hen. V. it is stated, that Hen. IV., having made a will, and appointed executors thereof, those executors fearing the assets would be insufficient, declined to act. It is then recited, that under these circumstances, the effects would be at the disposal of the Archbishop of Canterbury, as ordinary, who should direct them to be sold. But Hen. V., instead of allowing the effects to be

stance of any successor of any intestate sovereign coming to the Court for letters of administration: which the learned Judge considered as furnishing decisive evidence that the Court had no jurisdiction whatever therein. 1 Add. 262, 264, 265.'

It is observable in the section on the capacity of a deaf and dumb person to make a will, that the law presumes such a one to be incapacitated, without proof to the contrary, and supposes a will made by him to be made only by signs. This is one among a thousand instances in which a change in the condition of the community will effect a change in the presumption of the law, for the presumption now would be, in our community, that the deaf and dumb person could read and write.

The case of Longchamp v. Fish, 2 N. H. R. 415, is worthy of remark, in which it was held that on the proving a will made by a person not able to read, it is enough to show by one witness that the will was read to the testator, though the statute requires three attesting witnesses.

The following curious case is given of proof of the sanity of the testator, from the internal evidence supplied by the will itself.

'In the case of Cartwright v. Cartwright, 1 Phillim. 90, it appeared that the testatrix was early in life afflicted with the disorder of her mind: she afterwards was supposed to be perfectly recovered, and continued for several years to conduct a house and establishment of her own as a rational person: but her habit and condition of body, and her manner for several months before the date of her will, were those of a person afflicted with many of the worst symptoms of insanity, and continued so after making the will. She was attended by Dr. Battie, who desired the nurse and other servants to prevent her from reading and writing, as such occupation might disturb her head; and in consequence thereof, she was for some time kept from the use of books, and writing materials however, some time prior to writing the will, she became very importuate for the use of pen and paper, and frequently asked for them in a very clamorous manner. Dr. Battie, in order

sold, took them, and agreed to pay their appraised value. 1 Add. 263, 4 Inst. 335. The only will of a sovereign deposited in the registry of the Prerogative Court, is the will of Hen. VIII. That is understood to be a copy merely, and there is no appearance of any probate of it having been taken. It was probably deposited there for safe custody, or as a place of notoriety for such a purpose. 1 Add. 263.

to quiet and gratify her, consented that she should have them, telling her nurse and other servants that it did not signify what she might write, as she was not fit to make any proper use of them. As soon as Dr. Battie had given permission, pen, ink, and paper, were carried to her, and her hands, which had been for some time kept constantly tied, were let loose, and she sat down at her bureau, and desired her nurse and servant to leave her alone while sh wrote. They went into an adjoining room and watched her: at first she wrote upon several pieces of paper, and got up in a wild and furious manner, and tore the papers and threw them into the fire one after another: after walking up and down the room many times in a wild and disordered manner, muttering to herself, she wrote the will she inquired the day of the month, and an almanack was given to her by one of the nurses, and the day pointed out to her she then called for a candle to seal the paper which was given to and used by her for that purpose, although they used generally to be cautious not to trust her with a candle, and were forced to hold it at a distance from her if she read the newspaper. The survivor of the two witnesses to the transaction, deposed that in her opinion, the testatrix had not then sufficient capacity to be able to know what she did, and that during the time she was occupied in writing, which was upwards of an hour, she, by her manner and gestures, showed many signs of insanity. The will was written in a remarkably fair hand, and without a blot or mistake in a single word or letter: and it was a proper and natural will, and conformable to what her affections were proved to be at the time, and her executors and trustees were very discreetly appointed. Two months after this writing of the will, in a conversation with the mother of the parties benefited by the will, the testatrix mentioned that she had made such a will, and ordered her servant to bring it, and she then delivered it to the mother, observing that there was no need of witnesses, as the estate was all personal and the will in her own hand-writing. Sir Wm. Wynne pronounced the will to be the legal will of the deceased, and further said, that in his apprehension the forming of the plan, and pursuing and carrying it into effect with propriety and without assistance, would have been sufficient to have established an interval of reason if there had been no other evidence; but it was further affirmed, by the recognition and the delivery of the will. From this sentence an appeal was interposed to the High Court of Delegates who affirmed the judgment of Sir Wm. Wynne. 1 Phillim. 122. That very eminent Judge, in the course

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of giving sentence below, after remarking, that the court did not depend on the opinions of the witnesses, but on the facts to which they deposed delivered, the following observations:

"The strongest and best proof that can arise as to a lucid interval, is that which arises from the act itself of making the will; that I look upon as the thing to be first examined, and if it can be proved and established that it is a rational act rationally done, the whole case is proved. What can you do more to establish the act; because, suppose you are able to show the party did that which appears to be a rational act, and it is his own act entirely, nothing is left to presumption in order to prove a lucid interval. Here is a rational act rationally done. In my apprehension, where you are able completely to establish that, the law does not require you to go farther and the citation from Swinburne states it to be so. The manner he has laid it down is: (it is in the part in which he treats of what persons may make a will; Swinb. Pt. 2, s. 3, pl. 14:) "The last observation is, If a lunatic person, or one that is beside himself at some times but not continually, make his testament, and it is not known whether the same were made while he was of sound mind and memory or not, then, in case the testament be so conceived as thereby no argument of phrenzy or folly can be gathered, it is to be presumed that the same was made during the time of his calm and clear intermissions, and so the testament shall be adjudged good, yea although it cannot be proved that the testator useth to have any clear and quiet intermissions at all, yet nevertheless I suppose, that if the testament be wisely and orderly framed, the same ought to be accepted for a lawful testament." Unquestionably there must be a complete and absolute proof that the party who had so formed it did it without any assistance. If the fact be so that he has done as rational an act as can be, without any assistance from another person, what there is more to be proved I don't know, unless the gentlemen could prove by any authority or law what the length of the lucid interval is to be, whether an hour, a day, or a month. I know no such law as that; all that is wanting, is, that it should be of sufficient length to do the rational act intended; I look upon it, if you are able to establish the fact that the act done is perfectly proper, and that the party who is alleged to have done it was free from the disorder at the time, that is completely sufficient." Accordingly, Sir John Nicholl in Scruby vs. Fordham, I Add. 90, lays it down as a general rule, that where a will is traced into the hands of a testator, whose sanity is fairly impeached, but of whose sanity or insanity at the once time of doing or performing

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