doth recover his former understanding, yet the testament made during his former fit doth not recover any force or strength thereby. But if a man or lunatic person has a clear or calm mind, then during the time of such his quietness and freedom of mind he may make his testament m (1).

Every person is presumed to be of sound mind and memory unless the contrary be proved; and therefore, if any person goes about to overthrow a testament, by reason of insanity of mind or want of memory, he must prove the impediment ", which is a hard and difficult point: and therefore it is not sufficient for the witnesses to depose that the testator was mad or beside his wits, unless they render or yield a sufficient reason to prove this their deposition, as that they did see him do such things, or heard him speak such words, as a man having reason would not have done or spokeno.

As persons who are born blind, deaf, and dumb, are incapable of making any will, so likewise are those who are deaf and dumb by nature; unless it appears by sufficient arguments that such a person understandeth what a will means, and that he hath a desire to make a will; for if he have such understanding and desire, then he may make his will by signs and tokens P.

A blind person may make a nuncupative will, by declaring his mind before a sufficient number of witnesses; and he may make his will in writing provided it be read to him before witnesses, and in their presence acknowledged by him for his last will; but if a writing be delivered to a blind man, and he, not hearing the same read, acknowledges it for his will, this will not be sufficient; for it may be, if he had heard the same read, he would not have acknowledged it for

1 Law of Test. 39.

m Ibid. 4 Burn's Eccles. Law, 44. n Law of Test. 40. 4 Burn's

Eccles. Law, 44.

o Ibid.

P Law of Test. 44. 4 Burn's Eccles. Law, 54.

(1) Acc. Cartwright v. Cartwright, 1 Phillim. 90. White v. Driver, Ib. 84. I Dow's Rep. 178.

his will; therefore the best and safest way in such case is, that the will be read over to the testator, and approved by him in the presence of all the subscribing witnesses: yet the law of England does not seem precisely to require this strictness, if there be otherwise satisfactory proof of the will being read over to the blind man; as the single oath of the writer hath been allowed sufficient to prove the identity of the will (2).

The same precautions as are necessary for authenticating a blind man's will, seem in like degree requisite in the case of a person who cannot read; for though the law in other cases may presume that the person who executes a will knows and approves the contents of it, yet that presumption ceaseth where, by defect of education, he cannot read, or by sickness is incapacitated to read the will at the times..

Persons for want of sufficient liberty and free will, being incapable of making wills as before-mentioned, are the next class here to be considered; and the first of these I shall take notice of is a married woman.

A married woman is utterly incapable of disposing of her real estate, either by will or deed, as has been shewn t; and as to her chattels real and personal, the latter of those we have seen immediately vest in her husband on the marriage, and the former he may make his own if he chooses "; wherefore she is incapable of disposing thereof, unless her husband should consent to her so doing, which is not likely he should, as it would be very inconsistent to give her a power of defeating the law in this respect, by enabling her to bequeath those chattels to another.

9 Law of Test. 45. 4 Burn's

Eccles. Law, 55.

4 Burn's Eccles. Law, 55.

$ 4 Burn's Eccles. Law, 55. t Page 122.

u Page 3. 164.

(2) In the case of a blind man, stronger evidence than the mere attestation of signature will be required to support his will; but it is not necessary that the will should be read over to him in the presence of the attesting witnesses. Longchamp d. Goodfellow v. Fish, 2 New Rep. 415.

By the husband's consent the wife may make a testament, and as the husband before marriage frequently becomes bound in a bond or covenants with some of the woman's friends to give her such consent, he is bound by his bond or covenant so to do; but unless such consent be given to the particular will in question, it will not be complete even though the husband beforehand hath given her permission to make a will; yet it shall be sufficient to repel the husband his general right of administering his wife's effects (which otherwise he has a right tow), and administration shall be granted to the wife's appointee *, or the person appointed by the wife.

A wife may make a will of chattels real and choses in action not reduced into possession; but if the husband does not assent to the proof of that will, it will be void, and cannot be proved. If he does consent, either by matter ex post facto, the death of the wife, or by previous contract, that consent entitles the executor to claim those things which would be the husband's as administrator. In the one case, the executor takes by legal inference, in the other by favour of the agreement made in consideration of the marriage. The executor of the wife, when she has a power to make a will, takes by her special appointment. With regard to chattels, both real and personal, the husband by contract anterior to the marriage, resting only in agreement, could authorize her to make a will: but in order to enable her to make a will of real estate, he must part with the legal estate to trustees; for by agreement, whilst resting in agreement, he cannot bind the heir, but can only bind himself, and the legal estate ought to be conveyed by legal conveyances (3).

w See Page 3.

x 2 Black. Com. 498.

Y Ex post facto, is a term used in the law, signifying something done after another thing that was committed before. And an act done, or estate granted, may be made

good by matter ex post facto, that was not so at first, by election, &c. As sometimes a thing well done at first, may afterwards become ill. 8 Rep. 146. 5 Rep. 22.

2 Hodson v. Lloyd. 2 Bro. Cha. Rep. 543.

(3) In the case of Scammel v. Wilkinson, 2 East, 552, the court of king's bench determined, 1st, that a feme-covert

When a married woman dies, who by will or writing hath disposed of effects by power derived from a bond, settlement, or a will; before such will or writing of the woman's is proved in the ecclesiastical court, the ordinary will require the husband's consent, either in person or by proxy, a person appointed by the husband for that purpose; and if that cannot be obtained (as sometimes the husband will absolutely refuse such consent), then the ordinary will require the bond or settlement from which the wife derived her power, to be produced, and after abstracting it, will grant a probate or administration; that is, if the wife hath appointed an executor, the ordinary will grant a probate; if the wife hath not appointed an executor, but made only a kind of testamentary disposition in writing, then the ordinary will grant administration with such testamentary disposition annexed; and in case the husband's consent hath not been obtained, but instead thereof the bond or settlement hath been produced, the contents thereof issues with the probate or administration from the ordinary; and this will be attended with expence according to the length of the bond or settlement, which, if very long, the extraordinary expence will be considerable, wherefore it is best to obtain the husband's consent if it can be had. If the wife dis

poses by power derived from a will which hath been proved, and the husband withholds his consent, the extraordinary expence of obtaining the probate or administration will be

could have no power of disposition, but what might be acquired by the husband's assent over that which was his property proprio jure: 2dly, that over property which she had in auter droit, she had a power without her husband's assent to transmit by will what was not reduced into possession, which would pass to the devisee by right of representation to the former owner; but not over that which was reduced into possession, which must pass as that which was the husband's proprio jure: and 3dly, that her husband could not, by any assent, enable her by any will made during the coverture to dispose of property which she might acquire after his death.

very trivial, to what it will be when the power is derived from a settlement of any considerable length.

By this it may be perceived how marriage alters the power that a woman before the consummation thereof had over her estate and effects; and in respect to a will, if she should have made any before marriage, the same can be of no effect after her marriage, that being a revocation in law, and entirely vacates the willa. If she make any will during marriage, and die in her husband's lifetime, we have seen that it will be effectual with having her husband's consent, or if made pursuant to power she had for that purpose. Where a woman by settlement previous to her marriage conveys an estate to trustees, in trust to convey to such uses as she, whether sole or covert, should by deed or will appoint, and during her coverture makes her will and bequeaths the estate, and after the death of her husband takes a conveyance of the estate from the trustees to her own use, the conveyance is a revocation of the will; as where Hester Spencer, previous to her marriage with the late Mr. Dingley, by indentures of 17th and 18th June, 1760, conveyed an estate to trustees, in trust to convey the same to such uses as she, whether sole or covert, should by deed or will appoint. In 1765, being then covert, she made a will, reciting the power, and made conformable to it, by which she gave the estate in question, in case she should have no children, to her niece, Dorothy Askew, for life, with remainders, under which the plaintiff claimed the reversionary interest, subject to Dorothy Askew's life-estate. After the death of her husband, Mrs. Dingley, by a conveyance for that purpose, reciting the power, and made conformable to it, directed the trustees to convey, and they conveyed the estate to her in fee. The question was whether this conveyance was a revocation of the will.- Lord Chancellor said, there is no doubt about it, the question is, which of the acts is an execution of the power; there is no doubt it is executed by the conveyance to her own use b.

a 4 Co. Rep. 60. 2 Bro. Cha. Rep. 541. 544.

b Lawrence v. Wallis, 2 Bro. Cha. Rep. 319.