CHAPTER III.
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.