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beneficial interest under the will void, put an end *510 to a greatly litigated question, which arose in the time of Lord Mansfield. The question was, whether a witness was competent to prove a will, who was interested when he subscribed his name, and whose interest had been discharged when he was called on to testify. Lord Mansfielda held it to be sufficient that the competency, or disinterested character of the witness, existed when called as a witness. This decision was
The last work is ably executed. The English judges, in the opinions referred to, stated that if the party charged with a crime was not, at the time the act was committed, conscious of right and wrong, or did not know right from wrong, and that be clearly and satisfactorily proved, he was not guilty. See, also, Regina v. Higginson, 1 Carr. & Kirwan, 130. The same varied course of decision, and danger of contradictory decisions respecting the will of the personal and real estates, exist in England. Montgomery v. Clark, 2 Atk. Rep. 378. Clark v. Dew, 1 Russell & Mylne, 103. 3 Addams' E. Rep. 79. Hume v. Burton, 1 Ridg. P. C. 277.
A testator must be of sound and disposing mind and memory, but the necessary degree of mental capacity requisite, has opened a wide field for discussion in the courts. In the cases of Van Alst v. Hunter, 5 Johns. Ch. Rep. 148, and Sloan v. Maxwell, 1 Green N. J. Ch. Rep. 563, the requisite sanity of a testator was much considered. Age will not disqualify from making a will, provided the testator has a competent possession of his mental faculties. Code 6, 22. 3.-8. 54. 16. Voet, 21.36. The failure of memory is not sufficient to create the incapacity, unless it be quite total or extend to his immediate family and property. Den v. Van Clove, cited in 1 Green's Rep., 606. The Roman law applied the incapacity to extreme failure of memory, as for a man to forget his own name-fatuus præsumitur que in propio nomine errat. Code, 6, 24 14. and n. 55. The want of recollection of names is one of the earliest symptoms of a decay of the memory, but this failure may exist to a very great degree, and yet "the solid power of understanding" remain. The rule on the subject is, that sanity is to be presumed, and he who seeks to avoid a will on the ground of mental imbecility, must show it. Jackson v. Vanduser, 5 Johnson's Rep. 138. On the trial of Ear] Ferrers for murder, before the House of Lords, the defence was insanity, and Lord Camden said in that case, "had the noble prisoner at the bar a power of distinguishing, as moral agent, between right and wrong, or was he ignorant, in the opinion of the triers, that murder was an offence to God as well as man." The remarks of the Solicitor General, Sir Charles Yorke, were still more striking, and show the caution with which the plea of insanity should be received. Campbell's Lives of the Lord Chancellors, vol. 5.
Windham v. Chetwynd, 1 Burr. Rep. 464.
opposed with great ingenuity and eloquence by Lord Camden, though the majority of the court over which he presided followed the decision of the K. B.
III. Of things devisable.
It is the settled rule of the English law, that the testator must be seised of the lands devised at the time of making the will. He must have a legal or equitable title in the land devised. The devise is in the nature of a conveyance, or an appointment of a particular estate; and therefore lands purchased after the execution of the will, do not pass by it. The testator must likewise continue seised at the time of his death. In Goodright v.
• Doe v. Kersey, C. B. Easter Term, 1765. Powell on Devises, 131. 1 Day's Conn. Rep. 41, note. This very point arose in Hawes v. Humphrey, 9 Pick. Rep. 350, and the court held, that the witness to a will must have been competent at the time of attestation; and they took that side of the question as appearing to be most reasonable, and most conformable to the statute. The Mass. Revised Statutes of 1835, have declared that the witnesses must be competent at the time of attestation, and this was so declared by statute in England, and the opinion of Lord Camden has finally prevailed. But in Alabama a deposition taken de bene esse cannot be read at the trial, if the witness would be incompetent, if then present, though he was competent when the deposition was taken. Jones v. Scott, 2 Ala. Rep. N. S. 58. Langford v. Pitt, 2 P. Wms. 629. 320. Potter v. Potter, 1 Vesey, 437. Rep. 307.
Greenhill v. Greenhill, Prec. in Ch. M'Kinnon v. Thompson, 3 Johns. Ch.
• Lord Mansfield, in Pistol v. Riccardson, 3 Douglas, 361, admitted the rule to be settled, and on the ground that the will in that respect resembled a conveyance. By the Roman law, after-purchased lands passed, and the rule, he said, might as well have been declared the other way, but the doctrine could not be shaken. If legacies be bequeathed to heirs, and the lands devised to B., not an heir, the heirs may claim and recover, in the character of heirs, after-acquired lands, without being obliged to elect between the lands and the legacies. This was decided in the case of The City of Philadelphia v. Davis, 1 Wharton, 490, after a very elaborate discussion, and contrary to the case of Thellusson v. Woodford, 13 Vesey, 209.
d Bro. Abr. tit. Devise, pl. 15. Butler v. Baker, 3 Co. 25, a. Bunker v. Coke, 1 Salk. Rep. 237. 1 Bro. P. C. 199. S. C. Arthur v. Brockenham, 11 Mod. Rep. 148. This rule was strictly maintained in Pennsylvania, in the case of Gerard v. The City of Philadelphia, notwithstanding the will was
Forester, it was held, that a right of entry was not devisable. It was not a right assignable at common law, and it did not fall within the words of the statute of wills of 32 Hen. VIII. This decision was affirmed in the exchequer chamber, but upon other grounds; and Chief Justice Mansfield intimated, that a right that was descendible by inheritance ought to be devisable. It had
intended by the testator to apply to lands which might be thereafter purchased. 4 Rawle, 323. The law is now altered in Pennsylvania, by act of 8th April, 1833. When it clearly appears that the testator intended that his will should cover after-acquired lands, the rule in equity would seem to be that the heir cannot take both as heir and as legatee, and a court of equity will put him to his election to take under the will or as heir, and he will not be allowed to take in both capacities, as heir and as legatee. Thellusson v. Woodford, 13 Vesey, 220, 221. Churchman v. Ireland, 1 Russell & Mylne, 250. S. C. 4 Simons, 520. The rule in the English chancery is, that a republication of a will by a codicil makes a will speak as of the date of the codicil, and it will, as a republication, take in lands purchased up to the date of the codicil. A clear intent will, however, prevent the application of the rule, as if the codicil should say, "I am now dealing with the property I have given by the will, and with none other." Moneypenny v. Bristow, 2 Russell & Mylne, 117. Miles v. Boyden, 3 Pick, 213. Kip v. Van Cortland, 7 Hill, N. Y. Rep. 346,
The English real property commissioners, in their report, in April, 1833, recommended an alteration in the law to the effect that a will should pass property of any description comprised in its terms, where a testator may be entitled to at the time of his death, unless an intention to the contrary should appear upon the will. And the English parliament, by statute of 1 Victoria, ch. 26, passed for the amendment of the law with respect to wills, declared that every person might dispose by will of his real and personal estate, legal or equitable, which would otherwise go to his heir or executor. The power was extended to contingent, executory, and future interests, in any real or personal estates, that would devolve, if not devised, upon the heir, and to rights of entry, and to real and personal estate acquired after the execution of the will, and to which the testator is entitled at his death. The statute declares, that every will in reference to the real and personal estate comprised in it, shall be construed to speak and take effect as if it had been executed immediately before the death of the testator. Again, by the act of 7 Wm. IV., and 1 Vict., c. 26, it is declared that a general devise of real estate shall be deemed to include any real estate which the testator may have power to appoint, in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. * 8 East's Rep. 552. 1 Taunt. Rep. 578. S. C.
been previously decided, and on much more enlarged and liberal grounds, in Jones v. Roe, *that *511 executory devises, and all possibilities coupled with an interest, were devisable." But a right to enter for a condition broken, or under the warranty annexed to an exchange, is not devisable; nor is the benefit of a condition, unless it be annexed to a reversion. The interest under a contingent remainder or executory devise, or future or springing use, is devisable. All contingent possible estates are devisable, for there is an interest. But the mere possibility of an expectant heir is not devisable, for that is not within the principle. So, if a settlement be made on the survivor of A., B., and C., neither of them can devise the possibility. The person who is to take is not ascertained.d
The comprehensive views of the right of testamentary disposition, contained in the case of Jones v. Roe, have, I presume, been generally adopted in this country. The statute of New-York, of 1787, gave the power of devise to persons seised of estates of inheritance in lands, rents, and other hereditaments, in possession, remainder, or reversion. The subsequent provisions of the statute law
3 Term Rep. 88. 1 H. Blacks. Rep. 30. S. C.
By the New-York Revised Statutes, a possibility coupled with an interest is devisable, if the person in whom the interest is to vest can be ascertained. Every interest which is descendible may be devised, and this embraces all contingent interests. 2 R. S. 57, sec. 2. Pond v. Bergh, 10 Paige, 141. 153. • Lord Hardwicke, in Avelyn v. Ward, 1 Vesey, 423. Goodright v. Forester, 8 East's Rep. 552. Preston on Abstracts, vol. ii. 204. Mr. Preston doubts whether a mere possibility of reverter be devisable; but there seems to be no reason for doubt, since the decision in Jones v. Roe. The English law is now settled by the act of 7 Wm. IV., and 1 Vict. c. 26, that rights of entry for condition broken, and all other rights of entry are devisable. In Deas v. Horry, 2 Hill's S. C. Ch. Rep. 248, Mr. Justice Harper was of opinion, that a possibility of reverter was not devisable, for it was not a possibility coupled with an interest, but a mere naked possibility.
d Doe v. Tompkinson, 2 Maule & Selw. 165. See supra, p. 311, note, as to the devise of trust estates, and p. 334, 335, as to the execution of a power by will.
dropped the word seised, and gave the power of devising to persons having estates of inheritance; and in Jackson v. Varick, it was held, after much discussion, that a right of entry in land was devisable, though at the time of the devise, and of the testator's death, the land was held adversely. Such a right would pass by descent; and there were no reasons of policy to create a distinction in this respect between descent and devise; and, though there was no substantial difference between the New-York and the English statutes of wills, the former was rather more comprehensive in terms.
The English rule, requiring the testator to be *512 actually seised of the lands devised at the time of making the will, and to continue seised at the time of his death, continued to be the law of New-York, down to the recent revision of the statute law. The general rule of the English law has been admitted to be existing in Maine, Connecticut, North Carolina, and Alabama. The devise under the English law is a species of conveyance; and that is the reason that the devise operates only upon such real estate as the testator owned, and was seised of, at the time of making the will. An auxiliary consideration may be founded on the interest which the law always takes in heirs; and the rule was, until recently, received in Massachusetts as an explicit and inflexible rule of law. The NewYork Revised Statutes have altered the language of the law, and put all debatable questions to rest; and made
7 Cowen's Rep. 238. S. C. 2 Wendell's Rep. 166.
• Carter v. Thomas, 4 Greenleaf's Rep. 341. Meador v. Sorsby, 2 Ala. Rep. N. S. 712. Brewster v. McCall, 15 Conn. Rep. 274. Foster v. Craige, 3 Iredell, 536. But in Whittemore v. Bean, 6 N. H. Rep. 47, the court seemed to think the English rule was unreasonable, and that a mere right of entry was devisable.
2 Blacks. Com. 378.
• Parker, Ch. J., 5 Pick. Rep. 114. 10 Mass. Rep. 131. 17 ibid. 68.