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"coeval with the first rudiments of the law,' but as to real property, it is generally understood that whatever power there was of devising it under the Anglo-Saxon law disappeared in the days of the feudal system, and was not reëstablished until the Statute of Wills in the reign of Henry VIII. But even the power to bequeath one's personal property did not extend to all of it. By the common law a man's goods were divided into three parts; one of these went to his wife, another to his lineal descendants, and the third was at his own disposal. If he had no wife, he could dispose of one half, the other half going to his children; and vice versa, if he had no children his wife took one half and he could bequeath the other. If he had neither wife nor children, he might dispose of the whole by will; and this continued to be the law until after the settlement of the English Colonies in America.
In the United States the power to make a will was early recognized, and in most of the states was expressly conferred by statute, some to a restricted degree, and others wholly unrestricted.
The modern view is that the right of a man to dispose of his property by will is neither a natural nor constitutional right, but is solely created by statute; and the legislature may take it away or limit it in any way it chooses.
11. Who may make a valid will.
Before considering the formalities attendant upon the execution of the testator's will, it may be well to inquire whether he or she is legally competent to make one at all. It is not everyone who has that privilege.
In the first place no one can make a will containing a devise of real property who at the time of executing it has not reached the age of twenty-one years.
But if it relates only to personal property it may lawfully be executed if the testator, being a male, has attained the age of eighteen years, and if a female, the age of sixteen years. The will of a minor is usually scrutinized by the courts more closely than that of an adult, to guard against the exercise of any fraud or other untoward influences.
Formerly a married woman was not permitted to make a will, as she was not competent to own property separate and apart from her husband; but happily all such restrictions are now removed, and she may devise and bequeath her property to the same extent as though she were a man.
The alienage of the testator may affect his right to own real property in this country, but it does not impair his power to make a will. One who has been convicted of a crime, and who is therefore civilly dead, may still make a valid
will, because his conviction does not work a forfeiture of his property.
The place of residence of the testator, so far as concerns his capacity to make a will, is quite immaterial. It is only important when the jurisdiction of the court to probate it is called in question, as we shall see hereafter.
12. Testamentary capacity.
There seems to be a popular impression that anyone who is suffering from any mental derangement is thereby rendered incompetent to execute a valid will. But such is not the case. Of course an idiot cannot make a will, for he has no mind at all. But one who suffers from insane delusions, as, for example, a monomaniac, may be a perfectly competent testator. If the delusions which affect the soundness of his mind do not in any way relate to his property, or to the persons who by nature should be the recipients of his bounty, they will not render him incapable. So, too, an habitual drunkard may make a valid will unless at the time of its execution his understanding was clouded by actual intoxication. If, however, some mental disease has taken hold of him as a result of intemperate habits, that is another thing. In all cases, therefore, the test is not whether the testator had capacity to make any will, but whether at the time of executing it he had sufficient understanding to make the will in question, having reference to the amount and character of his property, and his relations to his family and dependents.
Thus, probate will be refused where the testator gives all his property to one child to the exclusion of the others, where it appears that he was suffering from a delusion that the latter were his enemies, and were conspiring to rob him of his property. How many people think that because a testator has failed to leave his property to his relatives, he has done a most unnatural thing, and that it must necessarily have resulted from a diseased mind. But this is altogether an erroneous view, for the fact that some relatives are excluded by the testator, if there be fair reason for it, furnishes a strong presumption of capacity.
Care should always be taken to distinguish between beliefs that are merely unfounded, and those which amount to delusions. The former are the result of misinformation or lack of investigation, but the latter are not only without basis for their support, but are so deeply implanted in the mind as to withstand such evidence and persuasion as would convince a reasonable person of their falsity.
The fact is that less mental capacity is required to execute a will than any other legal instrument. All that the law demands of a testator is that he should possess, at the time the will is executed, enough mind and memory to understand the nature of the business which he is then engaged in transacting, to comprehend what his property consists of, and to recall to mind the members of his family, or others having claims
From what has been said, it may readily be seen that mere imbecility, eccentricities, old age, or weakness of mind and body do not render a person incapable of making a will, so long as there be enough mentality to satisfy the foregoing principles.
13. Undue influence.
But though the testator may possess a sufficient degree of mental capacity, his intellect may be so weakened as to make it susceptible to the evil influences of designing and unprincipled individuals. This does not mean that one has not a right, by fair argument and persuasion, to induce another to make a will in his own favor. Neither is the influence exerted by kindness to a testator, nor the feelings on his part of gratitude or affection for the beneficiaries alleged to have brought about the testamentary disposition, undue influence. What