The 21 Hen. 8, c. grant to the

5, authorized to

widow or next

The

singles out the next and most lawful friend of the intestate; who is interpreted to be the next of blood that is under no legal disabilities. statute 21 Hen. 8, c. 5, * enlarged a little more the power [* 639] of the ecclesiastical judge; and permitted him to grant administration either to the widow, or the next of kin, or to both of them, at his own discretion; and where two or more persons were in the same degree of kindred, gave the ordinary his election to accept whichever he pleased.

of kin or both.

Thus stood the general law of probate and administration till the act we have mentioned was passed. That act (q) abolished the jurisdiction of the ecclesiastical and all other courts then existing (r) to grant probate of wills or letters of administration of the personal estates of intestates. A new court was established, called the court of probate, which now exclusively exercises in the name of Her Majesty every jurisdiction, and performs all duties relating to the personal estates of deceased persons, formerly exercised or performed by the prerogative court of Canterbury, or by the ordinaries, or other courts: with, however, this exception, as to jurisdiction, that no suits for legacies or for distribution of residue are to be entertained. The act abolished all the jurisdiction of the old ecclesiastical and other courts, but did not confer upon the new court any jurisdiction over the administration of the estates; which, indeed, is one of the chief functions of the court of chancery.

With respect to the inquiries, who may make a testament, and how it is to be made, the present law has already been pretty fully stated (s), inasmuch as the same rules now govern the capacity to make, and the mode of making, testaments of personal estates, as wills of real estates; though this was not so formerly (t). (414) The * incapacity to make a will arising from [* 640] mental infirmity or other physical causes, or from duress and other disabilities, is much the same as exists in other cases, such as the execution of a deed, of entering into a contract, &c., and must be tried by the same rule; the court of probate being, however, the court in which the validity of the will is tried. Of the procedure in this court, more will appear in the third book of these Commentaries.

An exception exists, however, as to the capacity of a married woman to make a will for the purpose of appointing an executor to continue the personal representation of a testator, of whose will she is the sole or surviving executor (u). This she may do without the concurrence or consent of her husband. She may, indeed, make a will of her personal estate, but it must be made with the consent of her husband, and then is rather his will than hers (v). (415)

make wills. Godolph. 1, c. 8; Warb. 212. Also the signature of wills of personal estate need not have been witnessed even by a single witness, may, before the Statute of Frauds, need not even have been in writing; and even after that statute, nuncupative wills, i. e., wills orally made, were permissible in certain cases and under certain restrictions. (2) Shep. Touch. 402.

(v) Hearle v. Greenbank, 1 Ves. S. 298; Re Rebecca Smith, 1 Sw. & Tr. 127.

(415) Independently of the statutes authorizing married women to dispose of their own property by will, it is very generally held that a married woman may make a valid wil! for

If, however, her husband is banished by act of parliament, or, it is said, if he have abjured the realm (x), (if that be possible (y)), her capacity to make a will survives. And a deserted wife, who has obtained a protection order under the act 20 & 21 Vict. c. 85, s. 21, may, it would seem (z), make a testamentary disposition of all property acquired by her after the date of the order. The queen consort, also, may dispose of her chattels without the consent of her lord (a).

[* 641 ]

A codicil, codicillus, a little book or writing, is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as part of, a testament: being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former dispositions of the testator. (416)

Codicil.

A few remarks upon the question what local law ought to determine the validity and construction of a will, or the devolution of property on intestacy may here find a place.

A will of fixed or immoveable property is generally governed by the lex loci rei sitæ (b). In regard to personal property, however, other considerations clearly apply. As to moveables, the lex loci domicilii seems proper to prevail as to the validity and construction of the will and the devolution of the property, though the forum will necessarily be that loci rei sita. (417)

In those countries, such as France, where the law does not permit the exercise of unrestricted testamentary disposition some difficulty arises in applying this principle, and special provisions are accordingly made by French law (c).

(x) Countess of Portland v. Prodgers, 2 Vern. 104.

(y) Lord Hatherley (in Udny v. Udny, L. R. 1 H. L. Sc. 441) expresses his opinion that a man cannot, at present at least, change his allegiance.

(z) Ante, p. 560.

(a) Co. Litt. 133. It is needless to add, that a married woman may exercise a power to

appoint property by will (ante, p. 560), and make a will as to her separate estate.

(b) As to whether this applies to leaseholds, which, according to our English legal classification, are placed amongst moveables, see some observations and authorities cited 1 Jarm. Wills, 4 n. The question seems still open for argument.

(c) Cod. Nap. 1. 1. 2.

the disposition of her personal property, if her husband gives his consent. Cutter v. Butler, 25 N. H. 343, 357; George v. Bussing, 15 B. Monr. 558; Lee v. Bennett, 31 Miss. 119; Newlin v. Freeman, 1 Ired. Law (N. C.), 514; Hood v. Archer, 1 McCord, 225; Fisher v. Kimball, 17 Vt. 323.

(416) A codicil is no revocation of a will, except in the precise degree in which it is inconsistent with it, unless there be words of revocation. Conover v. Hoffman, 1 Abb. Ct. App. 429; 15 Abb. 100; Larrabee v. Larrabee, 28 Vt. 274; Brant v. Willson, 8 Cow. 56; Bradley v. Gibbs, 2 Jones' Eq. (N. C.) 13; Read v. Manning, 30 Miss. (1 George) 308; Collier v. Collier, 3 Ohio St. 369.

If a testator, by a codicil to his will, revokes a legacy in express terms, alleging as a reason for such revocation that he had provided a permanent home for such legatee, the codicil will not be held inoperative on the ground of mistake, although the testator had not provided such permanent home. Hayes v. Hayes, 21 N. J. Eq. 265.

The revocation of a will revokes all codicils appended to it, and especially all codicils which depend upon it for interpretation or execution. Youse v. Forman, 5 Bush (Ky.), 337. And a codicil which depends upon the body of the will for interpretation or execution cannot be established as an independent will, after the will itself has been revoked. Ib.; Matter of Pinckney's Will, 1 Tuck. Surr. 436; see, also, Grimwood v. Cozens, 2 S. & T. 364; 5 Jur. N. S. 497.

(417) See ante, 782, note 393.

The law of England being in no difficulty of this sort, adopts without reserve the rule that a will, whether of an Englishman or a foreigner, shall be admitted as valid, if made according to the law of the place where the testator was domiciled at the time of making his will and of his death. What that domicil is, in any particular case, often is a question of very considerable difficulty (d); but, when ascertained, it is decisive as to what law ought to be consulted both as to the validity and construction of the will.

Difficulties, however, have arisen, the solution of which by no means presents itself readily; as, e.g., where the testator has changed his domicil after making his will, or * where the will was made according to the law of the country where it was made, the testator having at the time his [*642] domicil elsewhere. With regard to wills of personal estate made by British subjects, such questions have to some extent been set at rest by a recent act (e), whereby it is declared that every such will made out of the United Kingdom (whatever may be the domicil of the testator at the time of making the same, or at the time of his or her death) shall, as regards personal estate, be held to be well executed for the purpose of being admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be made according to the form required, either by the law of the place where the same was made, or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of Her Majesty's dominions where he had his domicil of origin. And (f) every will made within the United Kingdom is to be held to be well executed, as regards personal estate, if executed according to the forms required by the laws in force in that part of the United Kingdom where it was made. Moreover, a change of domicil is not to affect the validity of any will (g).

Executors and

We will now consider what is an executor, and what an adminadministrators. istrator, and how they are both to be appointed.

An executor is he to whom another man commits by will the execution of that his last will and testament, so far as regards his personal estate. (418) And all persons are capable of being executors, that are capable of making wills, and many others besides; as feme-coverts, and infants: nay, even infants unborn, or in ventre sa mere, may be made executors (h).

Executors.

(d) For one of the most recent disquisitions on the law of domicil, see Udny v. Udny, L. R. 1 H. L. Sc. 441, where principles are laid down with singular distinctness. (e) 24 & 25 Vict. c. 114. (f) Sect. 2.

(g) Sect. 3. This was a question of great difficulty, whether, if a testator, having made a valid will according to the law of his domicil, afterwards changed his domicil, the will remained good. Story, Conf. Laws, c. xi. () West. Symb. p. 1, s. 635.

(418) In Maryland neither letters testamentary nor of administration will be granted to a corporation; nor will a corporation, when named as executor, be allowed, according to the English practice, to designate a person to receive administration with the will annexed. President, etc., of Georgetown College v. Browne, 34 Md. 450.

Where a single woman is appointed sole executrix of a will, and she afterward marries, her husband will become joint executor with her. Barber v. Bush, 7 Mass. 510. The husband of an executrix may exercise all the powers of an executor by reason of her appointment, and without any qualification on his part; but the right does not survive to him after the death of his wife. Edmundson v. Roberts, 1 How. (Miss.) 322.

A married woman who is executrix of a will may execute a mere naked power contained in it without the concurrence or the consent of her husband. Tyree v. Williams, 3 Bibb (Ky.), 365, 367, 368; Hoover v. Samaritan Society, 4 Whart. (Penn.) 445; Coryell v. Dunton, 7 Penn. St. 530; Ela v. Cord, 2 N. H. 175.

Infant executor.

*

But where an infant is sole executor, since he cannot perform [* 643] the duties of the office, it has been provided (i) that administration, with the will annexed, will be granted to the guardian of such infant, or such other person as the court may think proper, until the infant attain the age of twenty-one years. If the infant be not sole executor, this administration durante minore ætate is unnecessary, for those executors who are of full age may execute the will (k). In like manner, limited Durante absentiâ, administration may be granted durante absentiá, or pendente lite; or pendente lite. when the executor is out of the realm (1), or when a suit is commenced in the ecclesiastical court touching the validity of the will (m). This appointment of an executor is essential to the making of a will (n), and, indeed, is the only essential part of the will, since a simple appointment of an executor, without anything more, if duly executed, constitutes a will of which probate will be granted (o); and it may be performed either by express words, or such as strongly imply the same. But if the testator makes an incomplete will, without naming any executors, or if he names incapable persons, or if the executors named refuse to act; in any of these cases, the ordinary must grant administration cum testamento annexo (p) to some other person; and then the duty of the administrator, as also when he is constituted only durante minore ætate, &c., of another, is very little different from that of an executor. And this was law so early as the reign of Henry II. when Glanvil (q) informs us, that "testamenti executores esse debent ii, quos testator ad hoc elegerit, et quibus curam ipse commiserit; si vero testator nullos ad hoc nominaverit, possunt propinqui et consanguinei ipsius defuncti ad id faciendum se ingerere.”

Cum testamento

annexo.

[* 644]

But if the deceased died wholly intestate, without * making either will or executors, then general letters of administration must be

Administrators.

granted by the court to such persons as are entitled thereto under 31 Edw. 3, stat. 1, c. 11, and 21 Hen. 8, c. 5, s. 3; except, indeed, the husband of a deceased wife, whose right to administration of her personal effects is unquestionable, and has been recognised by parliament (r), although the foundation on which it rests has been variously stated (s).

But the husband of a deceased wife who has obtained a protection order, has no right to administration of property acquired by her after the date of the order (t).

The statute of Hen. 8 provides, that administration may be given to the widow of a deceased, or to the next-of-kin, or to both, as by the discretion of the ordinary shall be thought good; and, amongst the next of kin, the ordinary shall be at liberty to choose those of the claimants whom he pleases. The practice now is to give the administration to the widow, and, in default of a widow, to such of the next of kin as, under the statutes which regulate the distribution of the personal estates of intestates, are entitled. Though, if good cause be shown, that course will be departed from (u).