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the testator wanted that freedom of mind, which is necessary to the validity of a will. But the law of England does not make such persons absolutely intestable; but only leaves the validity or invalidity of their wills to the discretion of the court to determine on the particular circumstances of the case, whether the testators may reasonably be presumed to have had a free and independent will, or not, in the disposition of their property. Ibid. 475.

To the class of those deprived of their liberty, or free will, may be added those who are deceived and imposed upon; for all wills procured to be made by artful misrepresentations and fraudulent contrivances are void. 2 P. Wms. 286.

Error may also in some cases affect a will, especially if it appears that the testator was solely actuated by an almost insuperable mistake, which has made him neglect the performance of some urgent duty; for the presumption is, that, had he not have been led into an error, he could not thus have disposed of his estate.

Under the second head of persons incapable of making a will, from want of sufficient liberty and free will, are married women.

A married woman, or as the law expresses it, a feme covert, is restrained by the statute of wills, 34 and 35 Hen. VIII. c. 5, from making any testamentary disposition of her real estate, and, by

the common law is utterly incapable of disposing by will of her personal estate, or even her paraphernalia, (namely, her bed, wearing apparel, and ornaments of her person,) without the license and consent of her husband. Moor, 213; Cro. Car. 219.

In equity, however, effect is frequently given to the testamentary dispositions of a wife; as where personal property is given to a feme covert, to her sole and separate use, she may dispose of it, by will, without the assent of her husband. Fettiplace v. Georges. 3 Bro. C. C. 8. And where she has this jus disponendi over the principal, she must consequently have it over its produce and accretions. Gore v. Gore v. Knight. 2 Vern. 535.

So, where a power is given to a feme covert, while sole, by settlement, as by vesting the real estate in trustees, and giving her a power to appoint the uses, she may dispose of the land by writing, in the nature of a will, so as to prevent its going to the heir, although no conveyance of the estate to trustees is ever executed, or any fine levied on the reversion. Wright v. Cadogan, 6 Bro. P. C. 156.

And, by the license and consent of her husband, a wife may dispose of, by will, her own, and, as Swinburne (Test. 89) says, even of her husband's goods; but, according to the same author, he may

revoke such power, not only during her life, but after her death, provided such revocation takes place before the will is proved.

So, if a married woman has any pin-money or separate maintenance, she may, by will, dispose of any savings made thereout without the license and consent of her husband. Ibid. 85.

And, if a feme covert is executrix or administratrix to another person, and in that right has goods and chattels, as these do not become the property of the husband by marriage, she may, for the continuation of the executorship only, appoint an executor, and, of consequence, make a will without the control of her husband. Ibid. 89.

But if a feme sole makes her will, and afterwards marries, such subsequent marriage is esteemed a revocation in law, and entirely vacates the will. 2 P. Wms. 624. And although she may survive her husband, yet it cannot be revived by his death. 2 T. R. 695.

As the inception of every will must be legal and valid, and the party of legal ability at the time of making the will; if the disabilities of infancy, insanity, idiocy, coverture, or duress exist at the time of its inception, the will is thereby rendered void, although the party, before his decease, should be relieved from such disability, and confirm the will. Arthur v. Bokenham, 11 Mod. 157.

Persons disabled from making a will, on ac

count of their criminal conduct, are as follow: all traitors and felons, from the time of committing the offence, are incapacitated from making a will of lands or real estate, and of goods or personal property from the time of their conviction; and that although such will was made before either the conviction or attainder. Swinb. Test. 95. But if a traitor has goods as executor to another, he may dispose of them by will. Ibid. 97. Neither can a felo-de-se make a will of goods or personal property; but he may make a devise of his lands, because they are not forfeited but by attainder, which cannot be in this case, a suicide not being attainted as a felon. 3 Inst. 55. Outlaws, also, though it be but for debt, or that the action for which they are outlawed be not just, are incapable of disposing of their goods and chattels by will, as long as the outlawry subsists, for their goods and chattels are forfeited during that time. But they may make a devise of their lands, as they are not forfeited by the outlawry. Swinb. Test. 107.

It was always the better opinion, that an excommunicated person might make a will; though some disputes had arisen as to the effect of what was called the greater and the less excommunication; but these niceties are put an end to by the statute 52 Geo. III. c. 147, by which all disabilities resulting from excommunication are abolished. With respect to the testamentary capacity of

aliens, it has been held that, during their peaceable residence here, they are entitled to dispose of their personal property as freely as any natural born subject. But no alien, whether friend or enemy, can make a will of lands, as they are incapacitated from acquiring any land in their own right. 1 Blacks. Comm. 372.

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4. Of the Subject Matter of a Disposition by Will. All personal property, whether in possession, as goods and chattels, or in action, as bonds, promissory notes, or bills of exchange, and debts, may be the subject of a devise; and the devise will operate, not only upon the goods and chattels the testator has at the time of making his will, but also upon whatever he has at the time of his death. By the statutes 33 Geo. III. c. 28, and 35 Geo. III. c. 14, any share or interest in the funds may be devised by will, provided the instrument be attested by two or more credible witnesses. And not only those things which are really in existence at the time of making the will, but even such as are not then in esse may be devised. Thus Swinburne says, (Test. p. 186), a devise of corn which will be sown or grow in such a soil after the testator's death, or the lambs which come of his flock of sheep the next year, depasturing in such a field, is valid. By virtue of the statute 20 Hen. III. c. 2, widows may bequeath crops of

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