AN infant in ventre fa mere, or in the mother's womb, is fuppofed in law to be born for many purposes. It is capable of having a legacy, or a furrender of a copyhold eftate made to it. It may have a guardian affigned to it, and it is enabled to have an eftate limited to its ufe, and to take afterwards by fuch limitation as if it were then actually born; and if a devife is to children and grandchildren living at the time of the teftator's death, a child in the mother's womb might in such case be so far regarded as to be looked upon as living, and will have the fame fhare as any child born before the teftator's death. But this must be understood with respect to legitimate children, and not of bastards, heretofore defcribed; for a devife to thofe in the mother's womb, or before born, is void *. Yet, if a baftard is born at the time of making the will, whereby either real or perfonal estate is given to him, he is capable of taking the same; but it is fafe to defcribe a baftard, in the will, as the natural fon or daughter of A. B. [his mother], especially if he be a tender infant, that has not got a name by reputation. Aliens, we have feen, are not capable of holding lands1; and, with respect to fome perfons incapable of taking a legacy, mention will be made under a subsequent head. HAVING thus confidered thofe propofitions, we shall now proceed to confider the manner of bequeathing to married women and infants, and of appointing guardians: conditions not to trouble executors, and for preventing indiscreet marriages. WHEN any eftate or effects is intended for a married woman, it is generally devised or bequeathed to fome perfon in truft for her, or to be for her fole and separate use, with directions that her receipt alone fhall be a fufficient discharge for the fame; as thereby to prevent what is given being fubject to the husband's control. If any real estate is devised to her in fee-fimple, and without any restriction, it immediately vefts in her on the teftator's death, and will have the fame effect as to the hufband's curtefy and being conveyed by virtue of a fine, as heretofore fhewn". But if any legacy or perfonal estate is given to a married woman abfolutely without any restriction, it will be as if the fame were given to the husband, as we fhall fee under a fubfequent head. And when any real estate is intended for an infant, it is ufual to devife it to fome perfon or perfons in truft for him till he attain twenty-one years of age, with directions to the trustees how to manage the fame in the interim. So with refpect to any legacy or perfonal estate that may be bequeathed to an infant; for the law will not trust an infant with any real eftate; and as to legacies or perfonal eftate, where the teftator has not taken neceffary care to preferve it for an infant, the courts wherein legacies are to be fued for, when applied to, are not negligent in taking the utmoft care for the benefit of infants P; the expence of which application may be faved by due care being taken in making the will. Trustees named in the will may alfo be appointed guardians by any father, who, we have feen, hath power to difpofe of the cuftody of his children; and the fame, or fuch others as the teftator fhall choose, may be made executors. In default of the father's appointing a guardian, infants at fourteen years of age, whether male or female, may choose their own guardian; and for the perfonal eftate, the ordinary ufually affigns him, but for the real estate, it is the province of the lord chancellor to affign a guardian. The power and reciprocal duty of guardian and infant, who is termed in law the ward, during the continuance of the guardianship, are the fame as that of father and child; and the infant cannot be fued,' but under the protection and joining the name of his guardian, he being to defend him against all attacks, as well by law as otherwife; and when the infant comes of age, muft give him an account of all that he hath tranfacted on his behalf, and answer for all loffes occafioned by his wilful delay or negligence. But an infant is allowed to fue either by his guardian or prochein amy, that is, his next friend, who may be any person that will undertake his caufe; and it frequently happens that an infant inftitutes a fuit in equity against a fraudulent guardian, who, if he hath abufed his truft, the court will check and punifh, and fometimes proceed to the removal of him, and appoint another in his ftead.-To prevent difagreeable contefts with young gentlemen, it has become a practice with many guardians, of large eftates especially, o Page 213. F See page 210, 211, 212, q Page 102. • Co. Litt, #35. Note 1. 13 edit. to to indemnify themselves by applying to the court of chancery, acting under its direction, and accounting annually before the officers of that court. As to conditions not to trouble exécutors, if a legacy is given on condition not to difpute the will, and the legatee commences a fuit whereby he disputes the validity of the will, this is no forfeiture of the legacy, if there was juftifiable cause of contefting it. And even though there is no probable cause, yet where a legatee, or other perfon interested, hath a right to see the will proved in folemn form, his making use of the right cannot, as it feems, be deemed a disturbance.--The teftator gives to B a legacy, on pain of forfeiture of it, in cafe he should give his wife, whom he made executrix, any trouble in relation to his eftate; B brings his bill against the wife, for which there was very little colour, and amongst other things demands his legacy. The chancellor was of opinion that the fuit was very frivolous, but would not declare the legacy forfeited". But in a cafe where a perfon by his will gave a legacy to his daughter, provided that if he or her husband refused to give release, or fhould put the executor to any trouble, the fame fhould go over to her fifter's children. The daughter and her husband, being within the city of London, fue for her orphanage part. It was decreed that the legacy was forfeited; for however it might have been conftrued to be only in terrorem, yet being devifed over, and by that means a right to this legacy being vefted in a third person, a court of equity could not divest it or call it back again *. GENERALLY, by the ecclefiaftical law, all conditions against the liberty of marriage are unlawful, as being a reftraint on the natural liberty of mankind, and an hinderance to the propagation of the fpecies; and if the condition be, that the legatee marry according to the appointment, arbitrament, or confent of fome other perfon, it is rejected as unlawful ". But if the conditions are only s Black. Com. I V. 463. t 3 New. Abr. 479. The manner thereof, fee page 187. * Cafe of Cleaver and Spurling, 2 P. Will. 258. Y Godolphin's Orphan's Legacy, 45. fuch fuch as whereby marriage is not abfolutely prohibited, but only in part reftrained, as in refpect of time, place, or perfon, then fuch conditions are not abfolutely rejected; ás for inftance, where the condition is not to marry before the age of twenty-one years: but if it is continued to an unreafonable length of time, it is otherwife. So if the condition be not to marry a particular perfon, or a widow, or one of any particular place, it is to be performed 2. In the temporal courts, the diftinction feems generally to have been where the legacy is devifed over to another, and where it is not devised over. In the former case it hath been held that the restraint fhall be good, fo as the legacy fhall not be due, unless the condition be performed; but in the latter cafe, where there is no devise over, it hath been held that the provifo or condition is only in terrorem, to make the perfon careful, but not to defeat the legacy ". Yet here there is a diftinction between its being charged on real estate and where it is not; as if a legacy be given to a woman upon this condition, that she marry with the confent of a third perfon, who, as it may be a parent, guardian, trustee, or executor, and the legacy be to be raised out of a real estate; in this cafe, if fhe marry without fuch confent, although there is no devise over, fhe fhall not have it. But if it is a mere perfonal legacy, payable out of the perfonal estate, and there be no devise over, in cafe fhe marry without fuch confent, fhe will be entitled to it, unless there be a devise over; and then it shall go to whom it is fo devised, and she will lofe it. The reafon of this diftinction is, because the temporal courts, where the legacy is merely perfonal, and only a charge on the perfonal eftate, follow the rule of the ecclefiaftical courts, which hath jurifdiction as to the perfonalty; but where it is charged on real eftate, of which the ecclefiaftical court hath no jurisdiction, they follow the rule of the common law courts; which is fimilar to what we fhall again fee hereafter under a subsequent head *. THUS having proceeded, we come now to the two last propofitions under the head of making the will, viz. the gift in cafe of death, and the nuncupative or verbal will. A GIFT IN CASE OF DEATH, which is called donatio caufa mortis, is, when a perfon in his last sickness, apprehending his diffolution near, delivers, or caufes to be delivered, the poffeffion of any perfonal goods to another, to be his in cafe the giver die; but if he lives he is to have them again, as being only given in contemplation of death; and this, notwithstanding there may be a will fubfifting, the teftator may do, for he might in his lifetime, after making his will, give away any part of his eftate, either abfolutely or conditionally and fuch gift as given in contemplation of death, if the donor dies, needs not the affent of his exccutor: yet it fhall not prevail against creditors &; for being given in cafe of the donor's death, and in nature of a legacy, it would be fraudulent as against creditors 1. Under perfonal goods before mentioned, may be included not only money, plate, and jewels, but also bonds and bills drawn by the deceased upon his banker, the gift whereof after the donor's death hath been held fufficient for receiving the money due thereon. A NUNCUPATIVE OR VERBAL WILL, is, where the teftator, without any writing, doth declare his will before a fufficient number of witneffes, and this can extend only to perfonal estate; for no real estate can pass by the will, unless it is written and attested in such manner as has lately been fhewn. Thofe verbal wills were formerly more in use than at prefent, when the art of writing is become more univerfal; and as they are liable to great impofitions, and may occafion many perjuries, the ftatute 29 Car. II. c. 3. enacts, 1. That no written will shall be revoked or altered by a fubfequent nuncupative one, except the fame be in the lifetime of the teftator reduced to writing, and read over to him and approved; and unless the fame be proved to have been fo done by the oath of three witneffes at the least, whọ f Black, Com. 2 V. 514. Ibid. h1 P. Will. 406. M i Law of Teft. 188. 4 Burn's Ecclef, Law, 188, by |