Testamentary Capacity.

As a general rule, this capacity exists; but there are certain conditions which preclude the exercise of this privilege, because of an inability to exercise it either safely, wisely, or intelligently; and these conditions may be, with respect to age, physical or mental incapacity, and coverture.

Section 1.—Incapacity as to Age.

The age at which a person is permitted to exercise this right varies with the nature of the property, whether it be real or personal property. Under the old common law, a male was qualified to make a will of personal property at fourteen, and a female at twelve;[74] and this was the rule in England until 1838.[75] This was the rule of the Roman law; but now it is changed by statute both in England and in this country. In New York, males require to be of the age of eighteen, and females of the age of sixteen, before they can make a will of personal property.[76]

In many of our States, the same age is required for making a will of personal as for real property; and as a general rule, the age required is twenty-one; but in three of our States, California, Connecticut, and Nevada, a person of the age of eighteen is qualified to make a will of personal and real estate. In some, a female attains her majority for this purpose earlier than a male person, as in Illinois, Maryland, and Vermont, where a female is qualified at eighteen.

With regard to the reckoning of the period of a person’s majority, there is a novel and exceptional mode in law. Thus, if a person be born on the first of February, at eleven o’clock at night, and the last day of January, in the one-and-twentieth year, at one o’clock in the morning, he makes his will and dies, it is a good will, for he, at the time, was of age. This rule, first laid down by Lord Holt,[77] is well established by sound authority.[78] With regard to which, Redfield remarks: “We feel compelled to declare that the rule thus established in computing the age of capacity, seems to us to form a very singular departure, both from all other legal modes of computing time, and equally from the commonly-received notions on the subject.”[79]

Section 2.—Physical or Mental Incapacity.

The physical incapacity of the deaf and dumb formerly disqualified them from making a will. Blackstone lays down the rule:[80] “Such persons as are born deaf, blind, and dumb, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void.” And in Bacon’s Abridgment,[81] it is said: “A man who is both deaf and dumb, and is so by nature, cannot make a will; but a man who is so by accident may, by writing or signs, make a will.” But since this class of persons have, of late, been brought to a considerable intelligence by the humane efforts of worthy men to communicate knowledge to them, there is no longer any reason or sense in excluding them from the testamentary privilege. However, in their cases, greater circumspection is needed in communicating with them as to their intention, and a stricter regard is paid to the observance of the requirements of execution. The question was carefully examined by the Surrogate of New York,[82] with the following results:

The law does not prohibit deaf, dumb, or blind persons from making a will. Defects of the senses do not incapacitate, if the testator possesses sufficient mind to perform a valid testamentary act. The statute does not require a will to be read to the testator in the presence of the witnesses; but it is proper to do so when the testator is blind and cannot read. In such cases, the evidence must be strong and complete that the mind accompanied the will, and that the testator was in some mode made cognizant of its provisions. This may be established by the subscribing witnesses, or by other proof.

So, also, it seems a drunken man, who is so excessively drunk that he is deprived of the use of his reason and understanding, cannot make a will during that time; for it is requisite, when the testator makes his will, that he be of sound and perfect memory; that is, that he have a competent memory and understanding to dispose of his estate with reason.[83]

We come now to treat of that incapacity which gives rise to most frequent and difficult litigation, and upon which judicial discrimination is most generally exercised—the incapacity of those who are of unsound mind, or persons non compos mentis.

There is no investigation in the whole domain of law that is attended with so many lamentable phases, where the foibles, indeed, the ludicrous side, of human nature, are more exposed; for it happens that those who will most carefully and tenderly screen a man’s weaknesses, vagaries, and eccentricities whilst he is living, will, if a contest takes place in which they are interested, after his death, most readily reveal, in all their nakedness and boldness of outline, the infirmities and superstitions of the deceased.[84]

As a principle of law of universal application, a person of unsound mind is incompetent to make a valid disposition of his property, either before or after his decease, except during a lucid interval. The only difficulty is, to determine exactly and unerringly the particular persons who may be thus classed, and to agree upon some mode or standard by which we can class such unfortunate people. Here is the difficulty; for all men do not view a person’s acts in the same manner, and are not similarly impressed by them. What, to some, would infallibly be the exhibitions of a diseased mind, may, to others, be the harmless frolics of a person of odd and eccentric manners. And, just for this reason, the decisions of courts have fluctuated, and, on this subject, have been the least satisfactory. When we lay down a definition of insanity, and agree upon it, we are next met with the further difficulty, to bring the facts of a person’s life or actions within it, and so to classify them.

What is the definition of a person non compos mentis? The law has to depend on medical writers for this information. Taylor, in his Medical Jurisprudence, gives us a definition as follows: “The main character of insanity, in a legal view, is said to be the existence of delusion; i. e., that a person should believe something to exist which does not exist, and that he should act upon this belief.” Another definition is this: “Where there is delusion of mind, there is insanity; that is, when persons believe things to exist which exist only, or, at least, in that degree exist only, in their own imagination, and of the non-existence of which neither argument nor proof can convince them: these are of unsound mind.”[85]

The rule of the common law, until within the last hundred years, was, that it required that a person should be absolutely a lunatic, that there should be entire alienation of mind, in order to incapacitate him from making a will; and there was no such theory then as partial insanity, or monomania, which the law takes notice of in modern times. The rise and acceptance of this theory mark an epoch in legal adjudications; it is certainly an advance in the science of law in the last century.

The germ of this theory was first broached in the celebrated case of Greenwood.[86] In that case, Mr. Greenwood, a barrister, whilst insane, took up an idea that his brother had administered poison to him, and this became the prominent feature of his insanity. In a few months he recovered his senses, and was able to attend to his business, but could never divest his mind of the morbid delusion that his brother had attempted to poison him, under the influence of which (so said) he disinherited him.

On a trial in the Court of King’s Bench upon an issue devisavit vel non, a jury found against the will; but a contrary verdict was had in another court, and the case ended in a compromise. On the theory of the common law, as it then stood, this will being made in a lucid interval should have been valid.[87]The case in which the law first sanctioned the view of partial insanity, which is also one of the landmark cases therefore, was the case of Dew v. Clark,[88] which excited great interest, and received a very thorough examination by one of the ablest judges of modern times, Sir John Nicholl. It was proved that the testator regarded his daughter as invested with singular depravity, a peculiar victim of vice and evil, the special property of Satan from her birth, and in consequence disinherited her. The syllabus of the case presents in so clear and concise manner the pith of the decision, that it will be useful to quote it:

“Partial insanity is good in defeasance of a will founded immediately (so to be presumed) in or upon such partial insanity. If A, then, makes a will, plainly inofficious in respect to B, and is proved, at the time of making it, to have been under morbid delusion as to the character and conduct of B, the Court will relieve by pronouncing this will to be invalid, and holding A to have died intestate.”

It is from this case, as a starting point, has arisen the theory of monomania, as applied to testamentary capacity. Henceforth a valuable and practicable rule was established, subsequently recognized and enforced in the best considered cases both in England and America—a rule not so much depending on precedent as it does on sound reason and argument. There must be two elements, co-existing, to afford sufficient ground for pronouncing a will invalid at the instigation of relatives and others, who deem themselves cut off from the bounty of a testator by his monomaniacal delusions.

First. There must be a plainly inofficious will; or a will wanting in natural affection and duty.

Second. There must be morbid delusion actually existing at the time of making, in respect to the persons cut off, or prompting the provisions of the inofficious instrument.

This theory is now consistently followed in the courts of this country, and an examination of a few remarkable and historical cases will illustrate the application.

It is thus adopted as a principle of decision in Seaman’s Friend Society v. Hopper,[89] by Judge Denio: “If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion, and delusion in that sense is insanity. If the deceased, in the present case, was unconsciously laboring under a delusion, as thus defined, in respect to his wife and family connections, who would have naturally been the objects of his testamentary bounty when he executed his will, or when he dictated it, and the court can see that its dispository provisions were or might have been caused or affected by the delusions, the instrument is not his will, and cannot be supported as such in a court of justice.” The same was the ruling in Leach v. Leach.[90]

Still, there needs to be a careful limitation of this theory. If we were to undertake to class all those who exhibit aberrations of conduct in various directions of life, who labor under hallucinations, and a wild imagination in regard to certain matters, whose credulity or whims provoke our mirth as much as our astonishment, as possessing a diseased mind, we should class among such some of the most singularly gifted and acute minds of the world. We all know of numerous cases in which

“Some one peculiar quality
Doth so possess a man, that it doth draw
All his effects, his spirits and his powers
In their confluxions all to run one way.”

Hence we must distinguish between mere eccentricity and monomania. In monomania, a man is not conscious of entertaining opinions different from the mass of men, and refuses to be convinced of laboring, in any degree, under mental unsoundness; the eccentric man is aware of his peculiarity, and persists in his course from choice, and in defiance of the popular sentiment. A remarkable case of eccentricity, as the court determined, bordering very close on monomania, was in the case of Morgan v. Boys,[91] where the will was upheld, on the ground that there was no satisfactory proof of actual unsoundness of mind. The testator devised his property to a stranger, thus wholly disinheriting the heir, or next of kin, and directed that his executors should “cause some parts of his bowels to be converted into fiddle strings—that others should be sublimed into smelling salts, and the remainder of his body should be vitrified into lenses for optical purposes.” In a letter attached to the will, the testator said: “The world may think this to be done in a spirit of singularity, or whim, but I have a mortal aversion to funeral pomp, and I wish my body to be converted into purposes useful to mankind.” The testator was shown to have conducted his affairs with such prudence and ability, that, so far from being imbecile, he had always been regarded by his associates, through life, as a person of indisputable capacity.[92]

Some wills have been refused probate upon the ground of a disgusting fondness for animals, evinced by the testators during their lives or in the testamentary act. In one case, the testatrix, being a female, unmarried, kept fourteen dogs of both sexes, which were provided with kennels in her drawing-room.[93]

In another case, a female, who lived by herself, kept a multitude of cats, which were provided with regular meals, and furnished with plates and napkins. This strange fondness for animals, in solitary females, is not altogether unusual, and is not to be regarded as any certain indication of insanity.[94]

We will now refer to three cases with some particularity, originating in the Surrogate’s Court in New York, each of which is very curious and instructive, and in which we can perceive the application of the rule regarding monomania.

The first is the case of Thompson v. Quimby.[95] There were several reasons assigned by the contestants for their attack upon Mr. Thompson’s will. Among them was the allegation “that the decedent was laboring under delusions amounting to insanity, and had not a disposing mind during the preparation, or at the time of the execution of the will.” The instrument was drawn and executed during his last illness, and but a short time before his death. It was a voluminous document, and in it some provision was made for many of his descendants and kinsfolk, but the bulk of his large estate (about $400,000) was left for charitable or religious purposes.The testimony established that the testator was a believer in many superstitions of a vulgar character, and had held them with great pertinacity for many years. Among other delusions, it was claimed he believed in the black art; that he read and experimented upon the teachings of magic; was familiar with disembodied spirits; that he could work spells by formula or incantation; that he could cure diseases by amulets, or by papers bearing certain cabalistic inscriptions, which were to be worn about the person of the sufferer. He professed to know where Captain Kidd’s treasures were secreted at Montauk Point, and actually, in company with another, undertook, by the aid of a divining rod, to locate the exact spot where the riches were buried. The experiment was a failure, because, as he declared, the charm under which he worked was broken by the inopportune remarks of his attendant. On one of these occasions he beheld the apparition of the devil (it seems, he had a belief in that personage) in the shape of a large bull, and spoke of this taurine manifestation of the father of evil with great seriousness. It was also alleged that he claimed to see ghosts; that he believed in the supernatural character and significance of dreams, in the philosopher’s stone, in clairvoyance, spiritualism, mesmerism, magic glasses, and that he owned a whistle with which he could get everything he wanted. This, and much more to the same effect, was adduced as testimony to prove the insanity of the testator.

On the other side, it was shown that the testator was a shrewd and intelligent man of business, clear and firm in his judgments. He was largely engaged in affairs; was connected with moneyed institutions; had succeeded in accumulating wealth by his own efforts; was associated in large and responsible enterprises of commerce, and was a regular attendant at Dr. Spring’s Presbyterian church.

While the Surrogate did accredit all that was deposed to, to sustain his insanity, he did arrive at this conclusion: “After making every possible reasonable allowance, I have no doubt that Mr. Thompson’s mind was impressed with a sincere belief in many absurd notions. There seems sufficient evidence to show that he believed in mesmerism, clairvoyance, divining and mineral rods, dreams, and spiritual influences. He searched for the supposed deposits of Kidd, and ascribed his failure in two instances to the utterance of certain words by the operator. That he said he saw the devil in the shape of a bull seems to be well established. He believed likewise in the efficacy of cures for rheumatism, and fever and ague.” Now, there was nothing whatever to connect any of these aberrations or infatuations of the testator with the provisions of his will, or with any one of them; they did not affect his testamentary disposition of his property; and there could not, therefore, have been a successful impeachment of his will on the ground of monomania, or partial insanity. The Surrogate decreed in favor of the will, and the Supreme Court sustained his decree.

The next case we allude to, to further furnish an illustration of the rule, is the recent case of the Bonard Will. This case is of the very greatest importance, because it was argued with unusual skill and ability, and the testimony of the medical experts was sifted with a thoroughness and minuteness which elicited much instruction upon the more obscure phenomena of mental disease, and the facts revealed being such as to present very distinctly the question of the testamentary capacity of one who entertained singular tenets of a so-called faith. It will be advisable to state the facts somewhat fully. Louis Bonard, a native of France, died at the city of New York, in the Roman Catholic hospital of St. Vincent, on the 20th day of February, 1871. His life had evidently been an eventful one; for, while the testimony leaves in doubt much, and fails altogether to account for more of his antecedent history, it was known that he had been a traveler and a trader in South and Central America, and that he had been a dealer in sham jewelry; that he came to this country some time prior to the year 1855, and had brought with him money; that he had had losses, but at length became successful, and made investments in real estate, which enabled him to accumulate a fortune amounting, at the time of his death, to about one hundred and fifty thousand dollars. During the period of his residence in New York, he lived as a miser. He preferred the society and companionship of artisans and mechanics. He had no relatives in America nor in Europe, so far as was ascertained at the time of the trial, although it has since transpired that he has kindred in France. He was a man of erratic habits and singular beliefs, the latter of which seemed to intensify as his age advanced. He was a misanthrope; but was possessed of an unbounded affection for the brute creation. The evidence shows that he was a believer in metempsychosis; that he expressed the opinion that there might be an emperor in any animal he beheld; that he remonstrated with a person who suggested it would be humane to kill an injured kitten, because, he averred, there was a human soul in the animal’s body. But he was a man dextrous and cunning in mechanical arts. He constructed machines for various purposes; he had mental resources likewise, and was a reader of books. The testimony, fairly viewed, showed that he railed at religion and priests; yet he died in the peace of the Roman Catholic Church, and in full communion.[96]

There appeared also the fact that Mr. Bonard combined with his ardent love of animals an unbounded admiration for the benevolence of Mr. Henry Bergh. Memoranda were found among his papers which plainly showed he had some ulterior purpose concerning that gentleman. On the 11th of February, 1871, and while he was very ill, he made a will, bequeathing a portion of his property to two of his friends. On the 13th he made another, revoking the former, and left all his estate, real and personal, to the Society for the Prevention of Cruelty to Animals, of which Mr. Bergh was then, as now, the honored president. Here was a case, bold in its outlines, and presenting the salient features of a dogma of a heathen creed, constituting the avowed belief of a man who was born and who died in the Catholic faith. The opinion of the learned Surrogate is very able and interesting. He declares that the belief which Mr. Bonard held did not constitute insanity; that “if a court is to ascribe insanity to a man, or a class of men, constituting a sect according to his or their opinion or belief as to a future state, the logical deduction would necessarily be, that a major portion of all mankind, comprised in all other and different sects, were of unsound mind, or monomaniacs on that subject.” The learned Surrogate then proceeds to consider the facts of this case, not as presenting one of general insanity, but as one in which the only appearance of unsoundness of mind consisted in the alleged monomania concerning the transmigration of souls. But he adverts to the fact that there was no connection necessarily of this belief with the terms of the will—that there was nothing in the will to show that he held the opinions alleged any more than he was impressed with a belief in utter annihilation after death; nor was there any testimony to associate any provision of the will with a belief respecting the future condition of the human soul. These considerations, coupled with the further fact that “the testator had neither wife nor child, father nor mother, nor any known, near, or remote relatives living, or others on whom he was or felt himself under obligation to bestow his property,” induced the court to sustain the will and overrule the allegation of mental incapacity.

But let us suppose that, actuated by this belief, so uncommon in the present day, Mr. Bonard, having before his mind the fate of an itinerant cur running around the city, yelled and hooted at by idle lads, or stunned by a policeman’s baton, had feared that his soul after death might pass into the body of such a hapless vagrant, and, under the impression of this possible fate, had provided a safe asylum where such unfortunates might find shelter from the pelting storm; and still further, that there were relatives who would appear and contest the will. Then we introduce quite a different and a new element into the consideration of the case.

This would have indicated that the dispository provisions were intended by the testator for his own physical comfort and benefit in another sphere of physical existence, and would have furnished one and the principal element of that quality of unsoundness of mind which the law recognizes as such in cases of disputed wills.

A late case in New York, decided in June, 1875, by the Surrogate, is another illustration. This was the case of the will of Harriet Douglas Cruger, made when the decedent was seventy-nine years of age, and in which she disposed of the bulk of her very large estate to the American Bible Society, and the Board of Foreign Missions of the Presbyterian Church. The history of the lady’s life is an eventful and interesting one. Belonging to a family of wealth and standing, possessed of a large private fortune, and endowed by education and training with rare personal and mental accomplishments, she married early in life, and met with disappointment and misfortune; for it was soon followed by a separation, and a law suit which continued for over eight years, between herself and her husband. She had some nephews and nieces, to whom, at one time, she expressed an intention of leaving her property. In the year 1866, she suffered an injury which affected her mind, and then, at times, was undoubtedly a raving, excited lunatic. Her pastor, the Rev. Dr. Paxton, and her physician, Dr. Parker, testify to her condition then as one of undoubted lunacy. She had on her mind a delusion that the devil was bodily present under her bed, and because of this was in the greatest anxiety and terror. She told her pastor of it, and further communicated to him her intention to give, as a means for her soul’s salvation, the most of her property to the religious and charitable societies of her church. He very prudently dissuaded her from this, properly instructing her that her salvation could not depend on such an act, and endeavoring to reason her out of her delusion, but to no purpose. In the fall of 1867, a will was prepared by Charles O’Connor, who was deceived as to her condition, giving her property to the societies named. The will was contested, and rejected, according to the established rule, that her insane delusion, acting on her mind at the time, affected the disposition of her property, and her will was clearly the offspring of such a delusion.In the case of Austen v. Graham,[97] the testator was a native of England, but had lived in the East, and was familiar with Eastern habits and superstitions, and professed his belief in the Mohammedan religion. He died in England, leaving a will, which, after various legacies, gave the residue to the poor of Constantinople, and also towards erecting a cenotaph in that city, inscribed with his name, and bearing a light continually burning therein. The court pronounced the testator to be of unsound mind, principally upon the ground of this extraordinary bequest, which sounded like folly, together with the wild and extravagant language of the testator, proved by parol. But on appeal it was held that as the insanity attributed to the testator was not monomania, but general insanity, or mental derangement, the proper mode of testing its existence was to review the life, habits, and opinions of the testator, and on such a review there was nothing absurd or unnatural in the bequest, or anything in his conduct at the date of the will indicating derangement, and it was therefore admitted to probate.

Section 3.—Senile Dementia.

The imbecility and feebleness of mind resulting from extreme old age is another cause of testamentary incapacity. Not that the law fixes a limit beyond which it is presumed a testator cannot exercise the testamentary disposition of his property intelligently; but it takes into account the well known, familiar instances of the loss of a person’s memory and mental capacity, owing to the decrepitude of old age, and it accepts evidence in those instances where senile decay is alleged, as to the ability of an aged person to rightly and understandingly make his will. It was said, in a case in the Ecclesiastical Court in England, that “extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of the court.”[98]

But if a man in his old age becomes a very child again in his understanding, and becomes so forgetful that he knows not his own name, he is then no more fit to make his testament than a natural fool, a child, or a lunatic.[99]

Courts are not disposed to accept every statement regarding the eccentric or weak movements of an old person as incapacitating such a one from making a will; on the contrary, there is every disposition to permit such a one, if not unmistakably enfeebled in intellect, or unduly influenced, to exercise a right that throws around one, at such a period, a dignity and power entitling them to the respectful regards of those who otherwise might not bestow upon them the attention due to the helplessness of old age. Chancellor Kent well expressed this leaning of courts, in the case of Van Alst v. Hunter.[100] He says: “A man may freely make his testament, how old soever he may be.... It is one of the painful consequences of old age, that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has, in protracted life, to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated.”

In the case of Maverick v. Reynolds,[101] it appeared that Mrs. Maverick, at the time of making the will offered for proof, was ninety years of age, and the probate was contested on the ground of testamentary incompetency and undue influence. It was shown that though the old lady did not remember the decease of her son and his wife, that she had sufficient intelligence to inquire about a certain one of her houses, its repairs, and the collection of the rent. One witness stated, as instances of her bad memory, that she forgot to pay her a dollar she had borrowed (a defect of memory not confined to old age); that she was in the habit of making statements, and afterwards denying she had made them, (not confined to old age, by any means) and that she would repeat the same questions after they had been answered. As an instance of the popular belief as to the capacity of old age, one witness said: “She had a bad memory; she was like other old people eighty years old; we consider them childish.” Another witness, a lady, testified: “As long as I can bring my memory to bear, (a considerable time, it appeared) she has been childish. In my opinion, she was childish twenty-five years ago. She would sing childish and foolish songs, and tell foolish stories, which I considered unbecoming for a woman of her years, and the people would all laugh at it. She would talk sometimes of getting married, and would fancy she was making ready to be married.” Against all this was the testimony of her pastor, Rev. Dr. Berrian, that her conversation was devout and pertinent, and he considered her a rather remarkable person for her age. Her physician also testified that he never observed any indication of unsound mind.

Surrogate Bradford, in an able opinion, examined the evidence carefully and at length, and came to the conclusion to admit the will to probate. About her levity, he remarks: “It is worthy of remark, that persons attaining great age often possess a large degree of that cheerful and lively manner which characterizes youth, and which probably in them contributes greatly to a green old age, when others, not so old, and possessing less of this sprightliness and vivacity, appear more decrepid and stricken in years.”

As a principle of such cases, he announces: “Great age alone does not constitute testamentary disqualification, but, on the contrary, it calls for protection and aid to further its wishes. When a mind capable of acting rationally, and a memory sufficient in essentials, are shown to have existed, and the last will is in consonance with definite and well settled intentions, it is not unreasonable in its provisions, and has been executed with fairness.”

Section 4.—Coverture.

The incapacity arising from coverture is to a great extent removed, and is gradually disappearing by remedial legislation, and for this reason it will not be necessary to treat of it at much length.

There has been a tendency, for many years past, to remove the various property disabilities attaching to a married woman, and which were only to be justified, if then at all, by quite a different state of social organization from the present. Perhaps in no branch of the law have there been so many radical changes as in that part pertaining to the status of a married woman. A lawyer who had only in his mind the old common-law theory and rules, and had neglected to make himself familiar with modern legislation on this subject, would find himself strangely bewildered to define a married woman’s rights and powers at the present time.

Still, testamentary power did not come as soon as other rights. Even when the right to a separate and independent ownership of property was granted, the right to a testamentary disposition did not accompany it; as, for instance, in the State of New York, the right to retain for her own use any personal or real property coming to her during marriage, free from any control of the husband, was granted in 1848, but it was not until the next year she was empowered to dispose of it by will.

Married women were excepted from the Statute of Wills of the reign of Henry VIII, which first allowed the disposition of real estate by will in England; but they frequently exercised testamentary disposition under a power given them when an estate was conferred upon them to their separate use.[102]

They had what was called a power of appointment by will, given by the donor of the estate, who was presumed to make the will through them as an instrument.

They could only make a will of personal property by the consent of the husband under the old law,[103] and this is the case yet in a few States. In Massachusetts, a married woman can dispose of only half of her personal property by will without the consent of her husband;[104] and some such restriction exists in many of our States.

The law of the American States in regard to the separate estate of the wife being exclusively under her control, and subject to any disposition on her part, is fast verging towards the rules of the Roman civil law, which allowed a married woman the same testamentary capacity, in all respects, as a feme sole.[105] In most of the more important and commercial States, the wife’s right to dispose of her estate by will, both real and personal, is recognized to the fullest extent by statute.[106] The only general restriction is, that she cannot defeat, in her will of her real estate, her husband’s right of curtesy. In some States, where the estates by dower and curtesy are abolished, this restriction, of course, cannot exist, as, for instance, in California.

In New York, the power to dispose of her separate real estate by will seems to be unrestricted, for there is no limitation mentioned. But opinions differ on this question: some hold that the husband’s right of curtesy is not cut off by the statute, while others hold that the whole unrestricted disposition of her property is given, and that she can defeat her husband’s curtesy, even if issue be born and the estate become vested. The matter is in a little uncertainty, because we have not as yet an authoritative opinion of the highest court on the subject, since the remedial statutes were passed. We are inclined to think, however, that the wife can defeat her husband’s right of curtesy by a disposition of her estate by will.[107]

It would be impracticable to give the various statutes of the States on this subject, and, besides, it would be useless, as the changes are very frequent, and what would be correct for a State today may to-morrow be obsolete; we have only endeavored to give some general information on the subject.