WILKINSON WILKINSON, John James Garth, an English au- thor, born in London in 1812. He was edu- cated at a private school, studied medicine, and became a practising physician of the homoeo- pathic school. He has published translations of Swedenborg's Regnum Animale (London, 1843-'4; American ed., 1850), and of some of hia other scientific works; u Swedenborg, a Biography " (1849) ; " The Human Body and its Connection with Man " (1851) ; " War, Cholera, and the Ministry of Health " (1854) ; "Improvisations from the Spirit," a volume of poems (1857); and "Methods of Human Sci- ence and Divine Eevelation" (1876). WILL, in law, the written instrument wherein a man declares his wishes in respect to the dis- position of his property after his death. There is good reason to believe that the right of in- heritance, or of descent to the children or kin- dred of the deceased, was firmly established and allowed earlier than the right of disposi- tion by will. Blackstone says that until " mod- ern times " a man could only dispose of one third of his personal property away from his wife and children, and, in general, no will of lands was permitted until the reign of Henry VIII. But it seems to have been the law in those early ages that a man's "goods," or, as we now call it, his personal property, was di- vided at his death, if he left a wife and chil- dren, into three parts, his wife taking one, his children jointly one, and the third being at his disposal by his will or testament. If he left a wife and no child, she took one half, and he could dispose of the other ; and if he left a child or children, but no wife, they took one half, and he could dispose of. the other ; and if he left neither wife nor child, he could dis- pose of the whole. If he died intestate, the king, as parens patrice, took possession of his personals. At first the king administered them through his common officers of justice, but at an early period he gave this power first per- haps to the county courts, but either originally or soon to his prelates. The bishops exercised it in their own courts, which were held either by them in person, or by their "ordinary," as the officer discharging this function was called. This word " ordinary " came to mean in Eng- land principally an ecclesiastical officer having judicial power. In some parts of the United States it is used as the designation of the judge who has jurisdiction in the matter of wills and administration. He is also in some states known by the title of surrogate, in others is called a judge of probate, and in others register of wills. The general rule is, that all persons having property may dispose of it by will. To this rule there are important exceptions, rela- tingprincipally to infants, persons of insufficient mind, and married women. At common law infants could not dispose by will of real estate, though males of 14 and females of 12 might dis- pose of personalty ; but by statute 1 Victoria, oh. 26, no will made by any person under 21 years of age is valid. The common law is vari- WILL 627 ously modified in the different states of the Union, but there is a prevalent tendency toward the rule now in force in England ; it is ex- pressly adopted in many states, and there are many reasons which favor that rule. What incapacity of mind invalidates a will is among the most difficult and most contested ques- tions of law. All the resources not only of law, but of metaphysics and psychology, have been brought to bear upon the consideration of the question, What is a sound and dispos- ing mind ? It is certain that mere weakness of intellect will not deprive one of the power to make a will, nor will serious defects of mem- ory, if the party still retains a recollection of those who would naturally be the objects of his bounty. A lunatic may make a will in a lucid interval, even though under guardianship, and a monomaniac may make one, though if his mania seems to have controlled its provisions it will be invalid. The apparent reasonable- ness or unreasonableness of the provisions of a will is often allowed to have a controlling in- fluence when the validity of a will made by one of impaired understanding or of alleged mental unsoundness is in question. A married woman cannot, by common Jaw, make any will what- ever except with the husband's assent, and then it is rather his will than hers. But this rule has received much modification in Eng- land, and much more in many of the United States. In a few of the states her common law disability remains almost entire ; in most it is diminished by permitting her to exert some power of disposition over some part of her property; while in many she is allowed all the power which may be exercised by any other person. No especial form of words is necessary to constitute a will or a legacy. It is always enough if the language used, how- ever unusual or ungrammatical, convey with distinctness the intention and desire of the testator. Nor need the instrument be called, or in its form appear to be, a will or testa- ment, if it was evidently intended to take effect after the death of the party executing it. As to the execution and attestation of wills, the law is far more stringent. The provisions of the statute of frauds are gen- erally adopted in the United States. The will must be signed in presence of two witnesses, ad in many of the states of three. But some- times by statute exception is made where the will is wholly in the handwriting of the tes- tator, especially if it be found among his papers, or disposes of personalty only. A seal is not usually required by statute, and when not so required is not necessary to the validity of the will. A mark may be a sufficient signature of the testator or a witness ; but it is unusual and perhaps unsafe to have a witness who cannot or will not write his name. Against the name of every witness his residence or address should be written, as a great convenience, where it is not required by law ; but the absence of this, even where it is required, does not invalidate
