constitute a valid donation mortis causâ; for, being choses in action, they cannot pass by delivery. 3 P. Wms. 358.

Another indispensable requisite to the validity of a gift of this nature, is, that it must be made with a view to the death of the testator, and to take effect in futuro; for if made irrevocably, and to take effect in presenti, it will not pass. 2 Ves. Jun. 111.

Though an actual tradition or delivery of a bequest is necessary to transfer the possession of a donation causâ mortis to the donee, yet if the intended gift, from its size or quantity, is incapable of a specific or manual delivery, a symbolical delivery of the thing by which the possession is to be obtained, and the thing used, will effectuate a complete and valid bequest; as the delivery of the bill of sale of a ship at sea, (2 Ves. Jun. 120,) or the key of a trunk, (Prec. Ch. 300; 2 Ves. 441,) or of a warehouse, in which goods in bulk are deposited. 2 Ves. 434.

A donation mortis causâ is subject to debts on a deficiency of assets (1 P. Wms. 406); as, also to the duties imposed upon legacies by the statute 36 Geo. III. c. 52, s. 7. Also, as this species of bequest may be avoided by creditors, so it may by the wife or children of a freeman, if it breaks in on their customary shares. 2 Vern. 612.

The distinction between a donation mortis causâ

and a legacy is, that the former is not within the jurisdiction of the ecclesiatical court; is not to be possessed by the executor; does not regularly fall within an administration; nor does it require any act by or from the executor, to constitute a title in the donee. 1 Roper's Law of Legacies, 2.

As to the form of a will or testament, the ecclesiastical courts are not scrupulous. It may be written on any material, and, to render such an instrument valid, no particular form of words is necessary; any disposition of property implying a testamentary disposition by the testator, and executed according to the above-mentioned precautionary requisites, however informal, will operate, and be admitted to probate. And a memorandum, or slip of paper, written by a person in contemplation of death, and with a design to make it operative after that event, is a valid testamentary disposition of personal property. 2 Com. Rep. 452. But as the ecclesiastical courts view with the greatest jealousy and circumspection all testamentary acts in the last stage of illness, which are unaccompanied by the peculiar forms and observances established by custom and practice, to make a memorandum, or slip of paper, written in contemplation of death, and making mention of intended dispositions of personal property, received in the ecclesiastical court as testamentary, it must appear that the writer intended it to operate as it stood

when it was written, without contemplating any further act to be done to give it its full perfection and render it operative; and this intention of further authentication is to be inferred from the mode of expression, or the manner of execution, adopted by the party framing it.* An intention to have the paper copied, or more formally drawn, does not imply the party's intention of any further act as necessary to the completion and full authenticity. This latter point was established in the case of the late William Huntingdon, S.S. of Providence Chapel, Gray's-Inn-Lane. 2 Phill. Rep. 215. And to render such a disposition of real property valid, the testamentary paper must either have been originally incorporated into the will, and distinctly referred to and described by the will, so as sufficiently to identify it, or it must itself be executed according to the solemnities required by the statute 29 Car. II. 6 Ves. Jun. 560.

3. Of the Testamentary Capacity.

The general rule of law is, that every person has full power and liberty to make a will, unless restrained by some special prohibition either of law or custom, which prohibitions are principally on three accounts: 1, for want of sufficient discretion;

*Though testamentary dispositions of this sort are allowed and held valid, it is the proper and most prudent way to follow the usual form.

2, for want of sufficient liberty and free will; and, 3, on account of criminal conduct. 2 Blacks. Comm. 496.

In the first species of prohibitions, by virtue of which persons will, by law, die intestate, are to be reckoned infants under the age of fourteen, if males; and twelve, if females. Ibid. 497. Harg. Co. Lit. 99. But on attaining those respective ages, and on proof that the testator was of sufficient discretion, a testamentary disposition by an infant of personal property is valid. Gilb, Rep. 74. Neither is an alienation of lands by the will of a person under the age of twenty-one years valid in law, unless by the special custom of particular places; for such a will may, by virtue of the statute 34 and 35 Hen. VIII. c. 5, s. 14, be set aside.

But notwithstanding the will of an infant is ineffectual as to personal property, if made under the age of fourteen, in the case of male infants, and twelve in that of females, and to real property, if under twenty-one; yet, if on attaining his full age, he republishes a will made during his minority, if the republication be executed with the solemnities required by law, such will will be good and effectual. 1 Siderf. 162. But to produce this effect, the republication must be an actual and a deliberate republication, and not a mere declaration that the will shall stand. Comb. 84.

Persons, also, who are not of reasonable mind

C

and sane memory, are restrained from making a disposition by will. Therefore, madmen, or persons otherwise non compotes, idiots, or natural fools, persons deprived of their faculties, by reason of old age or distemper, or intoxication, are during the continuance of such incapacity, or paroxism, disabled from making a will. 2 Blacks. Comm. 497. But, if no disability existed at the time of making the will, no subsequent incapacity, arising from the above causes, will have the effect of invalidating it. 4 Co. 61.

To this class, also, may be referred, persons born blind, deaf, and dumb; who, as they want the common inlets of understanding, are incapable of making a will, unless it very manifestly appears, by strong and convincing proofs, that they understood the meaning of a will, and expressed a desire to that effect. Swinb. Test. 97.

On the like ground of mental imbecility, a lunatic is disabled from disposing of his property, except it can be sufficiently proved that the disposition was made during a lucid interval, but they must be calm and clear intermissions to qualify him with a testamentary capacity. Ibid.

Persons deprived of their liberty, or free will, are intestable. For, it is a clear rule of law, that the party must be free, and under no compulsion from threat, violence, or duress, or other cause which is primâ facie a foundation to presume that