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was denied by the present Lord Chancellor, who observed, that we might suppose the strongest mind reduced by the delirium of a fever, or any other cause, to a very inferior degree of general capacity; and yet he might be competent to the making of his will, especially of personal estate 2. And the rule is clear that there must always be the animus testandi, or the instrument purporting to be a will is of no effect in the law. The parties must therefore be free, and under no compulsion from such threat or violence as may reasonably be supposed to move a constant man. But if, when the fear is past, or the restraint removed, the testator confirms the will, it is made good“. So likewise, wills procured to be made by artful misrepresentations and fraudulent contrivance, are void. And the question as to the existence of fraud, in cases of real property, is properly examinable in courts of. law, on an issue of devisavit vel non ; but fraud as to a personal will, belongs to the jurisdiction of the spiritual court.

Infancy, non sane memory, ideocy, coverture, or duress exist at the inception of a will, it is absolutely void, though the disability should happen to be removed before the consummation by death, for there must be a good inception, and the party must be qualified when the will is made 5. But if there is no disability when the will is made, a subsequent loss of intellect will not revoke it. But the will of a woman is revoked by her subsequent coverture, as will be seen in a future part of this work.

z 11 Vez. Jun. 11.

• Swinb. 475. Plow, 343. Raym. 84. 1 Eq. Ca. Abr. 171, 2.


How affected by


attainted of treason forfeits lands conviction, attainder, outlaw- and goods, and is of course incapable of disry, and self-mur. posing of them by his will.

So a felon, upon attainder, forfeits the fruits of his lands for the year and the day; after which they escheat to the Lord of the fee. But the forfeiture of goods and chattels is absolute, as well in felony as treason ; differing from the forfeiture of lands in respect of its commencement, the latter taking place upon the attainder, and not before, the former


the conviction It follows, . therefore, that if the party dies, before attainder in the one case and conviction in the other, the forfeiture is saved; his will either of lands or yoods is effçctual. But if conviction or attainder takes place, the will of the traitor or felon, as to his goods, by the conviction, and as to his real estate, by the attainder, is rendered void; and that, although such will was made before either the conviction or attainder. The King's pardon restores the disposing capacity, and the party may afterwards make his will, as if no conviction had taken place : and it seems, that by such pardon, any will made before conviction, recovers its former force and effect. Though it may be doubted whether a will or testament made after conviction, would be rendered operative, as not having had a legal and valid inception. The will

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Swinb. 97.

of a felo de se may, it seems, be effectual, as to his lands, because these are not forfeited but by attainder, which cannot be in this case. But as to his goods and chattels his will is of no effect (1).

A person outlawed in a personal action, forfeits his goods, and is therefore incapable of disposing thereof by his will, but it seems he may devise his lands“. But it is to be recollected that the wills of traitors, felons, aliens, and outlawed persons, are void only as to the King or Lord of the Fee, who has the right to the lands or goods, by reason of the forfeiture: the will is good as against the testator himself and all other persons.

As the person devising or bequeathing must be a person capable of making a will, so the devisee or legatee must also be capable of taking under it; and if he dies before the testator the gift vanishes. Neither the heir or executor are capable of taking originally; if the original object of the gift be dead, there is no person to whom the designation can apply

• Swinb. 104, • Plowd. 345. Brett v. Rigden.

(1) Plowd. Comm. Eng. Ed. Hales v. Petit, 261. and observe the subtle grounds on which this point was reasoned by C. J. Dyer.


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Neither the statute of wills

frauds extends to copyholds.

Reasons for

statute of 29 Car. 2. C. 3.

IT may be received as settled doctrine, that wills nor the statute of of copyholds stand clear of the statute of frauds as

well as of the statute of wills. It has before been

observed, that the statutes of Henry VIII. required holding copybolds to be out of the the tenure to be in soccage, which is not the de

scription of copyhold tenure, and therefore, for that reason the statutes of wills would not apply to this description of estate. We observe also, that copyholds could not be considered as having been embraced within the intention of those statutes, which was to revive the testamentary power with certain qualifications and restrictions, after the statute made for carrying the possession and legal estate to the use had either suppressed its exercise, or driven it upon new expedients for its preservation. The statute of uses had not interfered with the uses raised upon surrenders”, those being properly executed by the admittance, which operated as a new grant thereof by the lord pursuant to the surrender. Neither, indeed, could it be properly said, that copyholds were ever devisable, for a will can have no effect upon them as a will, so that it was always necessary first to pass the estate by a surrender thereof, into the hands of the lord, to such uses as the surrenderer should, by his last will, appoint, and then his will succeeded to this act as an appointment or declaration of the use 6.

a 2 Vez. 257.

By thus regarding the surrender as the mean whereby the lands themselves are transferred, and the will as having no specific operation under the statute of wills, but as a mere declaration of an use, or rather an appointment of the person to be admitted upon the surrender, we see the reason (not always indeed approved of) for holding wills of copyhold lands to be out of the statute of frauds, there being no special provision applicable to copyhold estates contained therein. Accordingly in Carey v. Askew, it was held by Sir Lloyd Kenyon, Master of the Rolls, that any testamentary paper would be sufficient to pass copyhold lands; and his Honour said, he hardly expected to hear it seriously argued; it had been held, that a will received by the ecclesiastical court will govern the surrender of a copyhold. It would be removing landmarks to entertain a doubt upon the subject.”

Lord Macclesfieldd admitted the same doctrine as Lords Maccles

field and Hard perfectly settled in his time, though certainly not wicke not satis

fied with the reasons.

• See the case of Royden v. Maltster, 2 RoH. Rep. 383. 2 Brown, C. R. 58.

0.2 P. Wms, 258.

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