Page:The New International Encyclopædia 1st ed. v. 20.djvu/613

WILL. At Rome in the later Republican period efTorin were made to limit the amount of le<,'aeies or special bequests. This end was attained, B.C. 40, by the Lex Falcidia, which provided that lega- cies should not exceed three-fourths of the net value of the entire estate. This did not affect the power of the testator to make a stranger heir, to the total exclusion of liis nearest kin. It was, however, possible for children or parents disinherited without cause, or for a brother or sister to whom 'a disgraceful person' was pre- ferred, to attack as •undutiful' a testament under which such natural heirs received less than one- fourth of their intestacj' share ; and siich an attack was quite likely to be successful if mental weakness could be shown on the part of the tes- tator or undue influence on the part of the stranger heir. .Justinian gave descendants and ascendants an absolute right to one-third, or, in some cases, to one-lialf of their intcstac.y shares, unless there was good ground for their disherison. All the modern civil codes give statutory sliares to descendants and to parents, and nearly all give a share (or at least usufruct in a share) to a surviving spouse. See Heir; Inheritance; (Succession ab Intestato; Testament. Wills at Cojimon Law. At early common law a gift by will of personal property was valid without writing or other formality. As knowledge of the art of writing became more general, the courts came to look askance at verbal or nuncupative wills, holding that they were valid when executed in tiiat maimer onl.y by force of necessity. An earl,y statute (29 Charles II., ch. 3) placed various restrictions upon the power of disposing of personal property of less than thirty pounds in value b.y nuncupa- tive wills. It required svich wills to be executed by the testator in the presence of three wit- nesses in his own house and during his last sickness. This statute with unimportant modi- fication was generally enacted into the statute law of this country. " In all of the States wills of personal property may now be executed with the .same formalities as wills of real estate, and in a number of States, as in New York, all wills of personal property are now required to be executed in that manner, with the exception that nuncupative wills of soldiers in actual service and of sailors while at sea are still deemed valid.

It seems probable that by the Anglo-Saxon law land held by grant from the King, sometimes known as 'book land.' was to a limited extent devisable. Disposition of land by will, however, was inconsistent with feudal tenure, as it de- prived the overlord of his feudal rights and privileges, and. following the Norman Conquest, the practice of making gifts of lands by will ceased with the gradual establishment of the feudal system. There were exceptions in some of the ancient cities as to lands held in burgage (q.v.) and in the County of Kent as to lands held by gavelkind (q.v.). where the power of disposition of land by will was preserved by local custom.

The development of the system of uses by the Enirlish Court of Chancery admitted of gifts of land by will by means of a conveyance of the land to such uses as the grantor might appoint by his will. (See Trust.) This method of making devises was temporarily destroyed by the Statute of Uses (27 Hen. VIII.), but the power of devising was completely restored as to all socage estates and as to two-thirds of the tes- tator's lands held by knight service by the Statute of Wills (.32 Hen. VIII.) enacted in l.')4n. By the abolition of feudal tenures (12 Charles I'l., ch. 14) in IfioO, the Statute of Wills was indirectly extended in its application to all lands.

No particular formality was required by the Statute of Wills for the execution of a valid will except that it was required to be in writing. Hy the Statute of Frauds (29 Charles II., cli. 3) a will was required to be signed by the testator and to be subscribed by three or more witnesses. t)tlu'r statutory changes have been made in the English Law of Wills which are substantially emiiodied in the Wills Act (7 Wm. IV. and in I. Vict., ch. 26).

Statutes based on the Statute of Wills and the Statute of Frauds have been enacted in most of the United States, in all of which there are statutes authorizing gifts of land by will. While varying in numerous particulars, these statutes are alike in requiring generally that the will shall be in writing and signed by the testator at the end of the will. Generally two and in some States three witnesses are required, who must subscribe the will as witnesses in the presence of the testator and in the presence of each other. In some States a smaller number of witnesses is required for a will of personal I)roperty than for a will of real property. In some States,' also, as in New York, the testator is required to publish his will, that is, announce at the time of executing it that the document is his last will and testament. In Louisiana holo- graphic wills without witnesses are valid; also nuncupative wills, provided the will is tran- scribed liy a notary in the presence of witnesses luuuberin'g three or five according to circum- stances. There are also in that State other rules as to the execution and proof of wills which are not generally in force in the other States of the United States.

The person executing a will must have tes- tamentary capacity, that is, he must be twenty- one years of age in case of wills of real estate, and "in most States eighteen years of age in case of wills of personal property. He nuist be of sound mind and act without undue inlUience on the part of others. For a fuller consideration of this topic, see Insanity; Infant; Marrieo Woman.

In general, any property may be disposed of by will. Such limitations as there now are upon such dispositions are properly limitations on the powers of beneficiaries to take, and only indirectly affect the power of giving property by will. (See Charitable Trusts, or Charities.) As a will only takes effect at the death of the testator, it may affect all property acquired by him after its execution as well as before, provided the property falls within the description of the will. Formerly wills were held to affect only the property owned by the testator at the time of execution. The rules governing the construction of wills, particularly of wills of real estate, are too numerous and complex for discussion here. The most important rule of interpretation is that the intention of the testator as it appears from the will shall be carried out wherever legally pos