The first and most important class who are excluded from the right of disposing of their property by will are persons who lack the necessary mental capacity, whether they are idiots or lunatics. A less degree of mental capacity, however, is required to enable a person to make a will than is required to make a valid contract,1 or deed.2 On the other hand, a less degree of imbecility is necessary to invalidate a will than would be necessary in securing an acquittal from a criminal charge.3 It is hard to lay down any general rules as to exactly what degree of imbecility will be sufficient to invalidate a will. It must be sufficient to prevent the person making the will, from clearly understanding the nature and effect of the act. If an insane person has lucid intervals, a will made in such an interval will be good.

1 Thompson vs. Kyner, 65 Pa. St., 368. 2 Kerr ve. Lunsford, 31 W Va., 659.

3 McTaggart va. Thompson. 14 Pa. St., 149.

In earlier times, the English law denied the right to make a will to a large number of diverse classes of persons. Swinburne, in his work on Wills, enumerates as those under disability in this respect: slaves, villeins, captives, prisoners, traitors; felons, heretics, apostates, libellers, suicides, manifest usurers, incestuous persons, outlawed persons, those excommunicated and prodigals.4 All disabilities of this character have been abolished.

Under the common law a married woman was absolutely incapable of making a will; and married women were expressly excepted from the provisions of the Statute of Wills.5 This rule has been greatly changed by statute in the different states. In many of the states at the present time a married woman has the complete power of making wills, while in other states she has this power, either in a limited degree, or subject to the consent of her husband.6

While the law has been growing more liberal as to the power of married women to dispose of their property by will, it has been growing stricter in relation to the rights of infants in this respect. Under the Roman or civil law, males were capable of disposing of all their property by will at the age of fourteen years, and females at the age of twelve years. This rule was originally followed by the common law courts. Recent statutes have raised this age limit materially both in England and in this country. In many of the states the age is now fixed at twenty-one years for both sexes; in some of the other states it is twenty-one in the case of men and eighteen in the case of women. Some states make a distinction between wills of real property and wills only transfering personal property, allowing the latter to be made at an earlier age than the former.7

4 Swinburne, Pt. 3, Sec. 7. 5 34 and 35 Henry VIII, C. 5.

6 See statutes of the several state*.

Whenever aliens are allowed to hold property in any State, they have the power to dispose of such property by will.

The law of the place where the land is situated will determine the capacity of a person to make a will transfering real property; while the capacity of a person to dispose of personal property by will will be determined by the law of his domicile at the time of his death.8