As an exception to the above rule, a married woman might at Common Law make a testament without her husband's consent, disposing of personal property settled upon her to her sole and separate use, and this whether such property was derived from her husband or from a third person.

Sec. 941. SAME SUBJECT-MODERN RULE AS TO RIGHT OF MARRIED WOMAN TO DISPOSE OF PROPERTY BY WILL.-In the United States, nearly all of the Common Law disabilities affecting married women in relation to their property have been removed by statutes. Thus in Arkansas, Connecticut, Delaware, Georgia, Indiana, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, South Carolina, South Dakota, Texas, Utah, Vermont, West Virginia and Wisconsin, married women have substantially the same rights to dispose of property by will as unmarried women and men. In Missouri, New Hampshire, New Jersey, Oregon, Rhode Island, Tennessee and Virginia, a married woman is unrestricted except as to her husband's right of courtesy. In California, Kansas and Massachusetts, married women may dispose of but half of their estate without the husband's consent.

In Alabama, Arizona, California, Georgia, Kentucky,

was a convicted felon, or civilly dead. See Page on Wills, Sec. 89.

*Tucker v. Inman, 4 M. & G. 1049; Lee v. Bennett, 31 Miss. 119.

Louisiana and Washington, they may dispose of their statutory separate property by will.* State statutes are continually modifying and liberalizing the restrictions imposed upon married women and it is possible that new statutes have been passed in some of the States above mentioned doing away with more of the Common Law restrictions on the wife's right to dispose of her property. (See Subject of Wills in 2d ed. Am. & Eng. Encyc. of Law.)

Sec. 942. II. DISABILITIES AS REGARDS AGE.-Nonage, or lack of capacity to make a will because of immature age, has been one of the disabilities common to all legal systems. Under the early English ecclesiastical law a will of personal property could be made by males at the age of fourteen, and by females at the age of twelve years and over. The Statute of Wills (32 Henry VIII) fixed the age for capacity to will real property at twenty-one years. The Statute of I Vict.

*Where State statutes require the husband's consent to the wife's will, or testament, this consent must usually be in writing. Gregory v. Oates, 92 Ky. 532; Tyler v. Wheeler, 160 Mass. 206. The right of a married woman to dispose of her property by will, thus depends upon statutes either giving her express power or removing the disabilities imposed by the Common Law; these statutes are so construed that only the form of will prescribed therein can be made by the married woman. Thus where the statute provided that she might make a will of her separate estate, when attested by witnesses, it was held that a holographic will without witnesses was invalid, though such a will would have been valid if made by a man or unmarried woman. Scott v. Harkness (Ida.), 59 Pac. Rep. 556. †II Black. Com., 497.

fixed the age of capacity at twenty-one years for both real and personal property.

In the majority of the United States a person must have reached the age of twenty-one years to have capacity to make a will as respects real or personal property. In some of the States the age of capacity required is twenty-one years for real estate and eighteen. years for personal property. In a few States, the statutory age for making a will is eighteen years for both real and personal property.§ In Colorado, Illinois, Maryland, Missouri, and Washington, the age of capacity is fixed at twenty-one years for males and eighteen years for females. In New York, a person must be twenty-one years of age to dispose of realty by will; and if a male person, eighteen years of age, and if a female, sixteen years of age, to dispose of personalty.

Sec. 943. SAME SUBJECT-EFFECT OF STATUTORY REQUIREMENTS AS TO AGE. -The State statutes fixing the age of capacity to make

This is a rule in Arizona, Florida, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, New Hampshire, New Jersey, New Mexico, Ohio, Pennsylvania, South Carolina, Texas, West Virginia and Wyoming.

This is the rule in Alabama, Arkansas, Oregon, Rhode Island and Virginia.

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§This is the rule in California, Connecticut, Idaho, Montana, Nevada, North Dakota, South Dakota and Utah. In Wisconyears is required in all cases, except that a married woman is competent to make a will at the age of 18 years. In Colopersons at the age of 17 years can make a valid will of personal property.

rado

a will always control whenever this question arises. The statutes, therefore, should always be consulted in determining the age of capacity.

A person is deemed to have attained the age required on the last day of the year immediately preceding the prescribed year, that is, if the age of capacity is twentyone, a person is of full age on the last day of his twentieth year.*

Sec. 944. III. DISABILITIES OF MIND OR INCAPACITY FROM UNSOUND MIND.-In order to make a valid will, the testator must at the time of making it, be of sound mind. No inflexible rule can be laid down for the determination, in every case, of what constitutes "sound mind."

The term "sound mind" involves two requisites; first, there must be mind, that is, intelligent capacity, and second, it must be sound, that is, free from insane delusions.

While there is not, and in the very nature of the case, cannot be, an arbitrary test to settle capacity, yet certain general rules or principles have come to prevail, which in a manner, fix the boundaries between capacity and incapacity in this respect. This rule, which is given in the next section, does not require perfect mental sanity, though at one time the English court seemed to lean towards that conclusion. Both the English and the American courts now hold that a person may not be per

*Bacor's Abr. Wills (B), 481; Ex parte Holyland, 2 Ves. 11. Smith v. Tebbitt, L. R. Pro. 398; Waring v. Waring, 6 Moore P. C. 341.

fectly sane on all subjects and yet possess sufficient mental capacity to make a will.†

Mental capacity to make a will is not synonymous with criminal responsibility, and no test can reduce them to a common standard. A person may be mentally unsound to the degree of irresponsibility for criminal acts and yet have sufficient mental capacity to make a valid will. This is so because the mental attributes in each case may be entirely different, that is, a man may know how to dispose of his property and yet have an insane delusion which would lead him to commit a crime.‡

And while it is sometimes said that testamentary capacity and contractual capacity, or capacity to make contracts, are the same, this is not strictly true.§ In some cases it is held that mental capacity to make a will must be of a higher degree than capacity to make a contract.* Other cases hold that a lower degree of mental soundness will suffice to make a will than is required to make a valid contract. This divergence of opinion, Professor

†Smee v. Smee, L. R. 5, P. D. 84; Banks v. Goodfellow, 39 L. J. Q. B. 237; Pidcock v. Potter, 68 Pa. St. 342; Wallis v. Luhring, 134 Ind. 463. So that it would be error for a court to charge that to have mental capacity to make a will, testator must have a mind wholly free from error.-Schreiner v. Schreiner, 178 Pa. St. 57; Page on Wills, Sec. 94.

Page on Wills, Sec. 95; McTaggart v. Thompson, 14 Pa. St. 149.

§Coleman v. Robertson, 17 Ala. 84.

*Boughton v. Knight, L. R. 3, P. L. D. 64; Chandler v. Bennett, 21 La. Ann. 58.

¶Converse v. Converse, 21 Vt. 168; Thompson v. Kyner, 65 Pa. St. 368; Brinkman v. Rueggesick, 71 Mo. 553.