
    Deane, Executor, versus Littlefield et al.
    
    A male infant fourteen years of age may make a will of personal estate.
    A will, purporting a disposition of both real and personal estate, is void by St. 1783, <?. 24, J 9, only where the real estate cannot pass by reason of a defective attestation. And where all the testator’s property, real and personal, is given to one person, the will is not within the reason of the statute.
    The will of an infant, giving all his “ estate and property of every description whatsoever,” was allowed as a will of his personal property only.
    This was an appeal from a decree of the judge of probate of this county disallowing the will of one Cyrus Everett, who was an infant over the age of fifteen years, (and this fact was mentioned in the will,) wherein the testator gave to his mother all his ££ estate and property of every description whatsoever.” The will was signed by the testator, and attested and subscribed, in his presence by three credible witnesses.
    The judge refused to allow this will to be proved, because, as is stated in his decree, he considered it contrary to the usage and practice within the Commonwealth of Massachusetts, and not authorized by law, for infants to dispose of any estate, real or personal, by will; and because the instrument attempted to be set up purports to dispose of real estate, as well as personal, and being void in respect to real estate, it could not be valid in respect to personal.
    The case was argued at the preceding October term.
    
      Metcalf, for the appellant.
    An infant male of fourteen years of age, and a female of twelve years, may make a will of personal property. West’s Symb Pt. 1, § 634; 2 Bl. Com. 497; 2 Wooddeson, 460; Richardson on Wills, 32; Lovelass on Wills, 122; Smallwood v. Brickhouse, 2 Mod. 315; Ex parte Holyland, 11 Ves. jun. 11; Co. Lit. 89 b, in notis, and cases there cited.
    Admitting that this will purports a disposition of both real and personal property, yet it is not within the St. 1783, c. 24, § 9, because it is attested and subscribed as that statute directs, for the devising of lands, &o. The defect mentioned in the statute is not found in this case ; and the statute, being in derogation of the common law, is not to be extended by construction. At common law, a will disposing of real and per sonal property, though not conformed to the statute of frauds and perjuries, is a good disposition of personal property. Cobbold v. Baas, 4 Ves. jun. 200, in notis.
    
    But this instrument does not purport a disposition of real property. The word purport in the statute is synonymous with intend ; and the intention is not to be inferred so as to defeat a will, except from necessity. The words do not necessarily imply an intention of disposing of real property. On the contrary, as the testator’s infancy appears on the face of the will, in his description of himself, it must be inferred that he intended to dispose of nothing more than he legally might. As he does not mention real property, the generality of the words is to be restrained by his legal competency, of which the Court will not presume him ignorant.
    The probate system of this Commonwealth presents no difficulty in this case. The ecclesiastical courts in England have no jurisdiction over wills of land only, and a prohibition lies to prevent the probate. But where one entire will disposes of lands and goods, it is proved in the spiritual courts, to enable the executor to perform his duties. The probate of the will cannot, in such case, prejudice the heir, for it is not evidence respecting the title to the lands. Egerton v. Egerton, Cro. Jac. 346; Netter v. Brett, Cro. Car. 395; Hobart v. Barrow, Hardr. 313; Stroud’s case, 1 Mod. 90; Partridge’s case, 2 Salk. 552 ; Thorold v. Thorold, 1 Phillimore, 9. So the probate of this will (as the infancy appears on the face of it) cannot affect the title to real property.
    If, however, a strict probate would, in this case, introduce any difficulties, a special and qualified probate is allowable. The remarks of Jackson J., in the case of Osgood v. Breed, 12 Mass. Rep. 533, are strong .and conclusive on this point ; and the authorities cited by him sanction such a course. The case of Toppenden v. Walsh, 1 Phillimore, 354, is a further authority to the same effect.
    This instrument may be allowed, therefore, as a will of personal property only. It is not within the words of the statute, nor will the probate of it produce the evil which the statute was designed to prevent.
    
      Chickering, for the appellees.
    The phraseology of this instrument is such as will pass real estate; (Bac. Abr. Legacies, fyc.,) and an instrument purports what it will effect. So this Court held, many years since, in the case of Enos Sumner’s will, which was attested by two witnesses only.
      It was decided, that, as the words of the will were sufficient to pass real estate, it purported to dispose of it, and was therefore void ; and that paroi evidence was inadmissible to show whether the testator had any such estate.
    If this instrument is approved, thé mother will be as much entitled to the real as to the personal property. Yet it is admitted that an infant cannot devise the former. It is also admitted, that the testator died seised of real estate. This difficulty cannot be avoided in the manner suggested. The will cannot be established in part, and disallowed for the rest. No case is cited which shows that it can ; and no precedent, in this State, can be found for the doctrine. The cases mentioned in Osgood v. Breed all relate to the wills of married women, and are not in point.
    The distinction suggested, on the St. 1783, c. 24, is too refined for practical purposes. It has no countenance from any decided case or dictum, and would let in all the mischiefs which the statute was intended to avoid. The remarks of Jackson J. (12 Mass. Rep. 534) show clearly, that he rejected any nice, literal subtleties of the sort which the Court are now invited to adopt.
    However the law may be in England, it is apprehended that the common law of this State does not allow an infant to dispose even of personal property by will. It is admitted that no instance can be found, though extensive inquiry has been made. This affords a very strong argument against this experiment. The appellees, however, rely with more confidence on the other objections.
    
      
       Mr. Metcalf, to whom I am indebted for the arguments of counsel in the principal case, has also favored me with the following note of this case, having searched the records, and inquired of gentlemen who attended both hearings what the true ground of decision was.
      The testator, after bequeathing several pecuniary legacies, concluded his will in these words; — “I give to R. C., E. C., See., the remainder of my estate to be divided equally between them.”
      The judge of probate approved and allowed the will, on the ground that ll did not purport to dispose of real estate; and refused to hear evidence that the testator owned such estate at the time of making his will.
      The Supreme Court of Probate, on appeal, reversed the decree of the judge of probate, without hearing the appellants’ counsel. They held that the will purported to dispose of real estate, because the words were sufficient for that purpose ; and that no evidence dehors the instrument was admissible to show the elate of the testator’s property. — Norfolk County, August Term 1796. Reporter.
      
    
    
      
       See Very v. Very, 3 Pick. 374.
    
   The opinion of the Court was delivered at this term, by

Parker C. J.

One of the objections to the will is founded upon the St. 1783, c. 24, § 9, which provides, “ that any will in writing which purports a disposition of both real and personal estate, that shall not be attested and subscribed as this act directs, for the devising of lands, tenements and hereditaments, (that is, by three or more credible witnesses,) shall not be allowed and approved as a will of personal estate only.” At the common law, a will which was good to dispose of personal estate, but not for real, might be set up for the former, though not for the latter, and this section of the statute was intended to repeal the common law ; it must, therefore, be limited in us operation to the case intended by the legislature ; and it is very clear, that the provision had respect only to such wills as should be insufficient to dispose of real estate, only because they were not attested and subscribed in the manner required in the statute. The will before us is attested and subscribed so as to be valid, according to the statute, in respect to real as well as personal estate, so that the section of the statute relied upon in support of the objection does not apply. It is to be observed, that whatever estate the testator had was given to his mother, so that the case does not come within the reason of this section of the statute, which is, to prevent one devise or legacy from being established and another defeated, which would be contrary to the intention of the testator; and not being within either the words or the spirit of the section, the provision must be considered wholly inapplicable.

That an infant of fourteen years and upwards, is capable of disposing of his personal estate by will seems to be a well settled doctrine at common law. Being then of legal discretion so as to be liable to punishment for crimes, and according to our statute having a right to choose his own guardian over his person and property, he is also of discretion in point of law to dispose of his personal estate by will. Our statute, which requires the testator to be twenty-one years and upwards, relates only to the devising of lands, tenements and hereditaments, and the common law is left in full force in relation to personal estate, except when both real and personal shall be disposed of in one will, which is not properly attested and subscribed to pass the real estate. If there should be objections on the ground of want of discretion in point of fact, which might appear from the disposition actually made, as well as from other circumstances, the Court of Probate will exercise its discretion in approving or rejecting the will. In the case before us, the objection rests altogether on the want of age, and we are to presume there was no evidence of want of discretion in fact; certainly such defect cannot be inferred from the gift to the minor’s mother of all his property, it not appearing that there was enough to make a division of it among brothers and sisters. The cases and authorities cited by the counsel for the appellant fully support the doctrine we contend for ; and not a single decisión or dictum to the contrary has been produced by the counsel for the appellees. It is only said that it is not according to the usage of the country to support wills so made. No doubt the instances are rare of wills made by minors, because it rarely happens that they have property to dispose of, and when they have, they are generally willing that the wise disposal of the law should have its course ; but a common law right cannot be taken away from one individual, merely be cause others have not chosen to exercise it. Neither the le gislature of the colony, province or commonwealth have seen fit to abolish this right, and certainly a court of law cannot do it. Although cases may arise which would seem to require that the law should be altered, yet, guarded as the privilege is by the right to inquire into the actual discretion of the testator, it is questionable whether any legislative interference is necessary.

The right of a minor to give his property to a mother in straitened circumstances, or to sisters unprovided for, instead of allowing it to be divided among brothers, who may have the means of subsistence without his aid, is a valuable right in minors, which, when exercised discreetly, ought not to be com plained of; and especially as his real estate, if he have any, cannot be diverted from the channels which the law has established.

The decree of the judge of probate was reversed, and the will allowed and proved so far as respects the personal property only of which the testator died possessed.  