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adverse may be as far removed from the death of the intestate as permitted by the rule against perpetuities. Title in personalty, acquired in reliance upon probate proceedings and from one in possession, is not subject to this peril. The difference is of course due to the different effect given by the law to possession of realty and possession of personalty. In seeking to protect titles in realty where the fact of testacy or intestacy has been determined by probate proceedings, and to give the probate the effect which it has in the case of personalty, the courts have announced the doctrine that such proceedings are in rem and good against the world. This doctrine has not yet reached its complete development, but its application and the almost universal requirement of probate in wills of realty are doing much to insure our titles. Statutes of limitation also have been enacted in some of the States, limiting the period after the death of the decedent during which a will may be offered for probate.

There are to be noticed two further features of development relating to the proof of wills. These are, the effect of interest in the attesting witnesses, and the defini- Requirements tion of mental capacity in a testator. Under the for probate. Statute of Frauds it was held that witnesses, to be credible as required by the statute, must be competent by the rules of common law; that one having an interest in the establishment of the will was not, therefore, a credible witness. But the hardship of overturning wills because of the accident of interest in the attesting witnesses was so great that an Act was passed in England in 1752 (25 Geo. II., c. 6), which was applicable to England and the English colonies and plantations in America; by the terms of which devises and legacies to attesting witnesses were rendered void, but the testimony of such witnesses was to be admitted. This is the law in most of our States to-day.1

1 This act does not seem to have been recognized as in force in Connecticut, Starr v. Starr, 2 Root's Reports (Connecticut), 303; but was in force in New York, Greenleaf's Laws of New York, I. 386; and was substantially re-enacted in Massachusetts in 1783. The share which such witness would have taken in

Statute of Wills.

The first Statute of Wills expressly excepted incapable persons from the power of devise therein given, but if there had been no such exception the courts would certainly have refused to recognize as valid the conveyance of an incapable. It is not likely that any uniform or definite standard of capacity was applied by the colonial assemblies and courts prior to the Revolution. In our modern reports, however, many cases involve as an issue of law the definition of the sound and disposing mind necessary to the validity of a will, since in our modern practice it is necessary for the trial judge, in his charge to the jury, to formulate definitions of capacity which will stand the test of submission to another tribunal. The definitions now customarily given to our juries are various in form, but are substantially similar in the several States.


When questions of capacity have come before appellate courts on reviews of the evidence, it can be seen with what different results the same measure of capacity capacity. can be applied to different cases. A notable instance occurred in New York, where in an early case the senate of the State, on appeal, sustained for probate the will of a person who, from the evidence, would seem to have been almost an absolute imbecile,' and the low standard thus set was subsequently disapproved in the Parish Will case,2 determined in the Court of Appeals in 1862. In the latter case, the court adopted a statement of capacity 3 originally framed by Judge Redfield of Vermont (the author of the Treatise on Wills), which, on the strength of its approval in that case,

case of intestacy is usually saved to him. This was enacted in New York in Revision of 1830, but had already been adopted by Virginia and certain other States. Connecticut adopted the principle, including the saving to the heir-atlaw, by statute taking effect January 1, 1808.

1 The same testator was, by a jury in a common-law court, determined to be incapable, and the same will rejected as to the real estate devised.

2 Parish v. Delafield, 25 New York Reports, 9.

8 "The testator must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in regard to them."

has been recognized by some courts as proper for the guidance of a jury. In other States, however, as in Connecticut, the courts have said that this, if used as a definition of capacity, is likely to mislead the jury. On the whole, it cannot be said that the law concerning capacity has undergone any change in this country, unless it may be in cases involving insane delusions or monomania, in which the later rule of the English courts has been finally adopted, that such delusions on particular subjects do not render the testator incapable, unless they influence him in the disposition of his property.


of land.

Because a will was, at the time of the first Statute of Wills, regarded as a conveyance, and because the Statute of Wills, as it was construed, gave the power of devising only fee-simple estates of inheritance, it was necessary that the testator should have actual seizin of the estate at the time of the execution of the will. This led to three results in which the law has been actually changed, namely, these: that a devise could not be made of lands of which the testator was at the time disseized; that any alteration in the testator's estate, by his act subsequent to the devise, nullified such devise; that the devise could not include and convey any interest in land which might be acquired subsequently to the time of the devise.

Lands of which the devisor was disseized at the time of the devise have been held by the courts of this country to pass, in some cases by the express permission of statute, in others upon the ground that the feudal tenures have not prevailed here. By the Wills Act, rights of action and of entry were made devisable, and also executory and future interests in land. The American statutes have tended in the same direction; that is, to make devisable any interest or title which in case of intestacy would descend to the heir. The Maryland statute of 1798 expressly gives the power to devise all lands which might pass by deed or inheritance, except estates tail.

The inability to devise real estate which might be acquired after the date of the will was the most serious incident of the application of the rule of seizin to devises. This not only affected the title of lands purchased or acquired by the testator after the date of his will, but contributed, in the case of lapsed devises, to a result which could not ordinarily have been in the contemplation of the testator. A devise was so far a present conveyance that, if it happened that the devisee died during the life of the testator, the testator was regarded as having reacquired such lands, and they descended to the heir-at-law as intestate estate instead of going to a residuary devisee, if any was named. In England, no disposition of after-acquired realty was possible until the Wills Act of 1837, which expressly permitted it. In this country the rule is as in England, that after-acquired realty cannot pass by will unless such disposition be expressly authorized by statute. Every devise, even a residuary devise, is specific (that is, is regarded as specifying and so identifying the particular subject-matter of the gift), and the same consequences follow in the case of lapsed devises as formerly in England. By statute, however, in most, if not all of the States, after-acquired land may, if the will be so expressed, be devised.1 There has been some conflict in the decisions upon the construction and effect of these statutes and it is still a matter of difference whether the passage of such a statute changes the rule that a lapsed devise shall go to the heir-at-law and not to the residuary devisee.

The English Statute of Wills made devisable only estates of inheritance. Estates pur autre vie (that is, held during the life of some third party) did not, therefore, come within its terms. By the Statute of Frauds, however, such estates were made devisable, and in accordance with or by re-enactment of its terms such estates are generally made devisable in this country.

In addition to these extensions of the power of devise the

1 Such statutes were passed by Virginia in 1785, Connecticut in 1831, Pennsylvania in 1833, and Massachusetts in 1836.

development of the law of property, and especially of personal property, has made interests and estates disposable by will which were not so disposable under the earlier law. But, as such changes are incidental merely to the natural development of the law in other departments, they are not here discussed. The modern law which gives to the administrator or executor of a mortgagee the mortgage title is a consequence partly of statutory enactment, but chiefly of a change in the judicial view of the nature of mortgages. The modern tendency against the heirs or devisees of trustees taking by succession the trust estates is an incident of the change in the judicial view of trusts. By an early English statute in like manner the executor of an original executor succeeded to the office, but this rule has now been generally abrogated by statute.

With the growing freedom of disposition and the extension of the power to property not originally included, there has arisen a necessity for certain restraints. Against the general principle that any one may do what he will with his own have stood the obligations growing out of the domestic relations. We have therefore to consider the right of disposition by will as against the members of one's family, as such right has been changed or modified.


The only restraint at common law, upon the husband's power to dispose of his property to the entire exclusion of his widow, was his inability to bar her dower right in the lands of which he had been seized during coverture. It is from this dower right that the modern practice of requiring election by the widow has arisen. The doctrine of election is stated by Jarman, the author of the standard English treatise on wills, thus:

"That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it."

In accordance with this principle, where a provision was made for the widow in the will of her husband, she was

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