I concur in the foregoing opinion and I feel constrained to make this further comment on the error contained in the instruction quoted by Justice Morgan. It is going entirely too far to tell a jury that a testator may be competent to dispose of his estate by will when at the same time lie was mentally incapable of entering into a contract or disposing of any part of his property by sale or otherwise. That has apparently been sanctioned by some courts as the law but it is not sound reason and ought not to be the law anywhere. Such an instruction in effect *Page 253 tells the jury that, although they find that the testator was not competent to sell livestock or produce from his farm or goods from his store, or other personal property, or convey a town lot or contract for improving it or constructing a building on it, he may be at the very same moment mentally capable of giving away his entire estate by will and that, too, to someone of no relation to him or to a total stranger. To my way of thinking, a man ought to have as much intelligence and understanding to qualify him to give away his estate by will as would be required of him to sell any portion of it for cash or on contract.
A lot of misdirected sympathy and solicitude has been wasted on the subject of the right of any person to make a will disposing of his property; and that his intention, if he was capable of having any kind of hazy intention, must be carried out. The trouble about much of that kind of discussion is that it overlooks the fact that it should be a thoughtful and deliberate intention or conclusion, in order to raise it to the status of an animus disponendi. In other words, the right to dispose of one's property by will has been so commonly treated as a natural and inalienable right of a citizen that it has come to be considered and treated as a natural and constitutional right; whereas, in fact, it is neither. A man has a right to make a will, simply by reason of the fact that the legislature has authorized him to do so. So also is the right to take property by descent. (If it were not for the statutes of descent and succession, and the statute authorizing execution of wills, the property of decedent would go to the state.) This proposition is fundamental and well stated in 68 C. J., pp. 414 and 415, as follows:
"In the United States, it has been said that, in the absence of legislative authority, no one may dispose of his property by will, there being no common-law right to make a will. In a majority of jurisdictions the matter is entirely statutory. The right to make a will is not a natural, inalienable, inherited, fundamental, nor inherent right, nor a right of citizenship, nor is it guaranteed by the constitution. It is said to be a privilege." *Page 254
The Supreme Court of Washington in In re Ward's Estate,183 Wash. 604, 49 P.2d 485, 102 A.L.R. 496, has very aptly said:
"The state's power over property passing by will or through the statutes of descent and distribution is plenary. It may take all of the estate if it sees fit, and, if it may take all, it may take any part less than all. The state's right to direct its disposition is unlimited." (Citing cases.)
(See, also, Lewark v. Dodd, 288 Ill. 80, 123 N.E. 260, 261;Breadheft v. Cleveland, 184 Ind. 130, 108 N.E. 5, 110 N.E. 662; In re Delano's Estate, 176 N.Y. 486, 68 N.E. 871, 872, 64 L.R.A. 279; In re Evans' Will, 193 Iowa, 1240,188 N.W. 774, 775.)
Now the point I make is that when a man is exercising his statutory right to make a will, he ought to be required to know what he is about and what he is doing, just as much as he should be required to know when he is selling some part of the same property for a consideration. I make these observations at this time concerning the instruction commented on by Justice Morgan, because they are not in harmony with the spirit of the instruction that was given in this case.
I am authorized to say that Chief Justice Holden concurs in these views.