to such property draws to it the possession; and that constructive possession continues in judgment of law, until adverse possession is clearly made out.52 This right of curtesy by the husband in the estate of the wife has been extended by modern decisions. It is now settled in equity, that he shall have curtesy of a trust as well as in legal estate; of an equity of redemption, a contingent use, or money to be laid out in land; but not in a pre-emption right of the wife in the public lands of the United States.5

53

54

A conveyance of the estate by curtesy made in due form of law will give the grantee in such deed the right to the possession of the land during the life of the husband. The estate is subject to execution.55 It must, however, yield to the superior homestead rights of the wife's minor children.56

The estate under the Arkansas statutes in force in the Indian Territory has been recognized by the Federal courts. We here quote from a very recent decision on the subject: "Did the right of curtesy exist in this case? Curtesy is the estate to which by common law a man is entitled on the death of his wife in the lands or tenements of which she was seized in possession in fee simple or in tail during coverture, provided they had lawful issue born alive which might have been capable of inheriting the estate, and it attaches to the wife's equitable as well as her legal estates of inheritance."

By act of Congress, May 2, 1890, 26 Stat. L., 81, Chapter 20 of Mansfield's Digest of the Laws of Arkansas, was

52 McDaniel v. Grace, 15 Ark. 483, 4 Kent. Com. 30; Jackson v. Sellick, Johns. 262; Green v. Siter, S Cranch, 229; Davis v. Mason, 1 Peters, 503.

53 McDaniel v. Grace, 15 Ark. 460; Ogden v. Ogden, 60 Ark. 70. 54 Morris v. Edmonds, 43 Ark. 427.

The rights of the children of the wife are not affected by such deed. Wear, etc., v. Smith, 66 Ark. 609.

55 Stanley v. Boham, 52 Ark. 354; but see Hampton v. Cook, 64 Ark. 353, holding otherwise.

56 Thompson v. King, 54 Ark. 9. Where issue was born since the Constitution of 1874, the effect of a sale of the husband's curtesy in his wife's land, subject to the homestead rights of his minor children, is to carry his interest, but no right of enjoyment of the homestead during the minority of the chil dren. Ibid.

extended over Indian Territory, by which the common law was made applicable, but under a proviso in the act did not then apply to the Indians of an Indian's estate.

By act of Congress it was provided:

"Provided, further, That on and after the first day of January, eighteen hundred and ninety-eight, the United States courts in said Indian Territory, shall have original and conclusive jurisdiction and authority to try and determine all civil causes in law and equity thereafter instituted, and all criminal causes for the punishment of any offenses committed after the first day of January, eighteen hundred and ninetyeight, by any person in said territory and the United States commissioners in said Territory shall have and exercise the powers and jurisdiction already conferred upon them by existing laws of the United States, as respects all persons and property in said Territory, and the laws of the United States. and the State of Arkansas in force in the Territory shall apply to all persons therein, irrespective of race, said courts exercising jurisdiction thereof as now conferred upon them in the trial of like causes. 1957

It was also provided by act of Congress:

"That on and after the passage of this act the laws of the various tribes or nations of Indians shall not be enforced at law or in equity by the courts of the United States in the Indian Territory." 58

By the same act all the tribal courts were abolished. Thereupon, the common law, as theretofore conditionally extended over Indian Territory, was made applicable to all persons irrespective of race, and the estate by the curtesy attached in favor of the husband to all lands of which the wife became seized during coverture upon the arising of the conditions upon which that estate is based at common law.59

57 Act June 7, 1897, 30 Stat. L. 62.

58 Section 26, Curtis Act; Act June 28, 1898, 30 Stat. L. 504.

59 Armstrong v. Wood, 195 Fed. Rep. 137; see, also, Sec. 66, Indian Land Laws, by Bledsoe.

5. TITLE TO REAL ESTATE BY LAST WILL AND TESTAMENT.

Sec. 614. Who may make a will.

Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided for in the chapter of the subject of succession in the statutes, being chargeable in both cases with the payment of decedent's debts as provided in the Code of Civil Procedure.1

The following instruction to the jury on this subject was sustained:

"It is soundness or unsoundness of mind, and not of any particular state of bodily health that must govern your judg

1 Snyder, 8,889; Wilson, 6,799; California, 1,270 (Kerr), identical.

ment. A man may be in a state of extreme bodily and mental weakness and disease, and yet he may possess sufficient understanding to direct how his property should be disposed of. The soundness of mind required by law to enable a man to make a will is not necessarily that soundness which men in good health and vigor possess.'

2

One may be in an extreme feeble physical condition and still have capacity to make a will. But when there is evidence of mental feebleness, the extreme physical feebleness may be shown, and is of marked significance in such connection.3

Sec. 616. Insane delusion.

The courts have very carefully defined what is meant by insane delusion which will justify refusal of probate of so solemn and important an instrument as a will. Prejudices, dislikes and antipathies, however ill-founded, or however strongly entertained, cannot be classed as insane delusions; nor is every delusion an insane delusion. Whenever one's mind is tricked or deceived into a false opinion or belief, it has been played upon; it is deluded. But an insane delusion is the spontaneous production of a diseased mind, leading to the belief in the existence of something which either does not exist or does not exist in the manner believed-a belief which a rational mind would not entertain, yet which is so firmly fixed that neither argument nor evidence can convince to the contrary. Moreover, such an insane delusion must have operated to cause the production of the will which is under attack.*

2 In re Nelson's Est 132 Cal 82, 64 Pac. 297.

3 In re Doolittle's Estate, 153 Cal. 29, 94 Pac. 240.

4 By the court in In re Kendrick's Estate, 130 Cal. 360, 62 Pac. 606; In re Carpenter's Estate, 94 Cal. 406; 29 Pac. 1,101; In re McDevitt, 95 Cal. 33, 30 Pac. 101; In re

Cole, 49 Wis. 181, 5 N. W. 346; Middleditch v. Williams, 45 N. J. Eq. 34, 17 Atl. 826; Stackhouse v. Horton, 15 N. J. Eq. 228; 1 Redf., Wills, page 89; In re Scott's Estate, 60 Pac. (Cal.) 528. Testatrix was a woman of very excitable temper, and when excited was violent, both

in language and action. She was