WHEEL. The punishment of the wheel was formerly to put a criminal on a
wheel, and then to break his bones until he expired. This barbarous punishment
was never used in the United States, and it has been abolished in almost every
WHELPS. The young of certain animals of a base nature, or ferae
2. It is a rule that when no larceny can be committed of any creatures of a
base nature, which are ferae naturae, though tame and reclaimed, it cannot be
committed of the young of such creatures in the nest, kennel, or den. 3 Inst.
109; 1 Russ. on Cr. 153.
3. The owner of the land is, however, considered to have a qualified property
in such animals, ratione impotentia. 2 Bl. Com. 394.
WHEN. At which time, in wills, standing by itself unqualified and
unexplained, this is a word of condition denoting the time at which the gift is
to continence. 6 Ves. 243; 2 Meriv. 286.
2. The context of a will may show that the word when is to be applied to the
possession only, not to the vesting of a legacy; but to justify this
construction, there must be circumstances, or other expressions in the will,
showing such to have been the testator's intent. 7 Ves. 422; 9 Ves. 230 Coop.
145; 11 Ves. 489; 3; Bro. C. C. 471. For the effect of the word when in
contracts and in wills in the French law, see 6 Toull. n. 520.
WHEN AND WHERE. These words are used in a plea when full defence is
made the form is, "when and were it shall behove him." This acknowledges the
jurisdiction of the court. 1 Chit. Pl. *414.
WHEREAS. This word implies a recital, and in general cannot be used in
the direct and positive averment of a fact in a declaration or plea. Those facts
which are directly denied by the terms of the general issue, or which may, by
the established usage of pleading, be specially traversed, must be averred in
positive and direct terms; but facts, however material, which are not directly
denied by the terms of the general issue, though liable to be contested under
it, and which, according to the usage of pleading, cannot be specially
tra-versed, may be alleged in the declaration by way of recital, under a
whereas. Gould, Pl. c. 43, §42; Bac. Ab. Pleas, &c., B. 5, 4; 2 Chit. Pl.
151, 178, 191; Gould, Pl. c. 3, §47.
WHIPPING, punishment. The infliction of stripes.
2. This mode of punishment, which is still practiced in some of the states,
is a relict of barbarism; it has yielded in most of the middle and northern
states to the penitentiary system.
3. The punishment of whipping, so far as the same was provided by the laws of
the United States, was abolished by the act of congress of February 28, 1839, s.
5. Vide 1 Chit. Cr. Law, 796; Dane's Ab. Index, h. t.
WHITE PERSONS. The acts of congress which authorize the naturalization
of aliens, confine the description of such aliens to free white persons.
2. This of course excludes the African race when pure, but it is not easy to
say what shade of color or mixture of blood will make a white person.
3. The constitution of Pennsylvania, as amended, confines the right of
citi-zenship to free white persons; and these words, white persons, or similar
words, are used in most of the constitutions of the southern states, in
describing the electors.
WHITE RENT, English law. Rents paid in silver, and called white rents
or redditus albi, to distinguish them from other rents which were not paid in
money. 12 Inst. 19. Vide Alba firma.
WHOLE BLOOD. Being related by both the father and mother's side; this
phrase is used in contradistinction to half, blood, (q. v.) which is relation
only on one side. See Blood.
WHOLESALE. To sell by wholesale, is to sell by large parcels,
generally in original packages, and not by retail. (q. v.)
WIDOW. An unmarried woman whose husband is dead.
2. In legal writings, widow is an addition given to a woman who is unmarried
and whose husband is dead. The addition of spinster is given to a woman who
never was married. Lovel. on Wills, 269. See Addition. As to the rights of a
widow, seq Dower.
WIDOW'S CHAMBER, Eng. law. In London the apparel of a widow and the
furniture of her chamber, left by her deceased husband, is so called, and the
widow is entitled to it. 2 Bl. Com. 518.
WIDOWHOOD. The state of a man whose wife is dead or of a woman whose
husband is dead. In general there is no law to regulate the time during whichh a
man must remain a widower, or a woman a widow, before they marry a second time.
The term widowhood is mostly applied to the state or condition of a widow.
WIDOWER. A man whose wife is dead. A widower has a right to administer
to his wife's separate estate, and as her administrator to collect debts due to
her, generally for his own use.
WIFE, domestic relations. A woman who has a husband.
2. A wife, as such, possesses rights and is liable to obligations. These will
be considered. 1st. She may make contracts for the purchase of real estate for
her own benefit, unless her husband expressly dissents. 6 Binn. R. 427. And she
is entitled to a legacy directly given to her for her separate use. 6 Serg.
& Rawle, R. 467. In some places, by statutory provision, she may act as a
feme sole trader, and as such acquire personal property. 2 Serg. & Rawle, R.
3. 2d. She may in Pennsylvania, and in most other states, convey her interest
in her own or her husband's lands by deed acknowledged in a form prescribed by
law. 8 Dowl. R. 630.
4. - 3d. She is under obligation to love, honor and obey her husband and is
bound to follow him wherever he may desire to establish himself: 5 N. S. 60; (it
is presumed not out of the boundaries of the United States,) unless the husband,
by acts of injustice and such as are contrary to his marital duties, renders her
life or happiness insecure.
5. - 4th. She is not liable for any obligations she enters into to pay money
on any contract she makes, while she lives with her husband; she is presumed in
such case to act as the agent of her husband. Chitty, Contr. 43
6. - 5th. The incapacities of femes covert, apply to their civil rights, and
are intended for their protection and interest. Their political rights stand
upon different grounds, they can, therefore, acquire and lose a national
char-acter. These rights stand upon the general principles of the law of
nations. Harp. Eq. R. 5 3 Pet. R. 242.
7. - 6th. A wife, like all other persons, when she acts with freedom, may be
punished for her criminal acts. But the law presumes, when she commits in his
presence a crime, not malum in se, as murder or treason, that she acts by the
command and coercion of her husband, and, upon this ground, she is exempted from
punishment. Rose. on Cr. Ev. 785. But this is only a presumption of law, and if
it appears, upon the evidence, that she did not in fact commit the act under
compulsion, but was herself a principal actor and inciter in it, she may be
punished. 1 Hale, P. C. 516; 1 Russ. on Cr. 16, 20. Vide Contract; Divorce;
Husband; Incapacity; Marriage; Necessaries; Parties to actions; Parties to
contracts; Women and, generally, Bouv. Inst. Index,
WIFE'S EQUITY. By this phrase is understood the equitable right of a
wife to have settled upon her and her children a suitable provision out of her
estate whenever the husband cannot obtain it, without the aid of a court of
equity. Shelf. on M. and D., 605.
2. By the marriage the husband acquires an interest in the property of his
wife in consideration of the obligation which he contracts by the marriage, of
maintaining her and their children. The common law enforces this duty thus
voluntarily assumed by him, and he can alien the property to which he is thus
entitled jure mariti, or in case of his bankruptcy or insolvency it would vest
in his assignee for the benefit of his creditors, and the wife would be left
with her children, entirely destitute, notwithstanding her fortune may have been
great. To remedy this evil, courts of equity, in certain cases, give a provision
to the wife, which is called the wife's equity.
3. The principle upon which courts of equity act is, that he who seeks the
aid of equity must do equity, and that will be withheld until an adequate
settlement has been made. 1 P. Wms. 459, 460. See 5 My. & Cr. 105; 11 Sim.
569; 4 Hare, 6.
4. It will be proper to consider, 1. Out of what property the wife has a
right to claim her equity to a settlement. 2. Against whom she may make such a
claim. 3. Her rights. 4. The rights of her children. 5. When her rights to a
settlement will be barred.
5. - 1. Where the property is equitable and not recoverable at law, it cannot
be obtained without making a settlement upon a wife and children, if one be
required by her 2 P. Wins. 639; and where, though the property be legal in its
nature, it becomes, from collateral circumstances, the subject of a suit in
equity, the wife's right to a settlement will attach. 5 My. & Cr. 97. See 2
Ves. jun., 607, 680; 4 Bro. C. C, 338; 3 Ves. 166, 421; 9 Ves. 87; 5 Madd. R.
149; 5 Ves. 517; 13 Maine, 124 10 Ala. R. 401; 9 Watts, 90; 5 John. Ch. R. 464;
3 Cowen, 591; 6 Paige, 366; 2 Bland. 545; 2 Paige, 303.
6. - 2. The wife's equity to a settlement is binding not only upon the
husband, but upon his assignee under the bankrupt or insolvent laws. 2 Atk. 420;
3 Ves. 607; 4 Bro. C. C. 138; 6 John. Ch. R. 25; 1 Paige, 620; 4 Metc. 486; 4
Gill & John. 283; 5 Monr. 338; 10 Ala. R. 401 1 Kelly, 637. And even where
the husband assigned the wife's equitable right for a valuable consideration,
the assignee was considered liable. 4 Ves. 19.
7. - 3. As to the amount of the rights of the wife, the general rule is that
one half of the wife's property shall be settled upon her. 2 Atk. 423; 3 Ves.
166. But it is in the discretion of the court to give her, an adequate
settlement for herself and children. 5 John. Ch. R. 464; 6 John. Ch. R. 25; 3
Cowen, 591; 1 Desaus. 263: 2 Bland. 545; 1 Cox, R. 153; 5 B. Monr. 31; 3 Kelly,
193; 1 D, & W. 407; 9 Sim, 597; 1 S. & S. 250.
8. - 4. Whenever the wife insists upon her equity, the right will be
exten-ded to her children, but the right is strictly personal to the wife, and
her children cannot insist upon it after her death. 2 Eden, 337; 1 J. & W.
472; 1 Madd. R. 467; 11 Bligh, N. S. 104; 2 John. Ch. R. 206; 3 Cowen, 591; 10
Ala. R. 401; 1 Sanf. 129.
9. - 5. The wife's equity will be barred, first, by an adequate settlement
having been made upon her; 2 Ves. 675; when she lives in adultery apart from her
husband 4 Ves. 146; but a female ward of court, married without its consent,
will not be barred, although she should be living in adultery. 1 V. & B.
WILD ANIMALS. Animals in a state of nature; animals ferae naturae. Vide
Animals; Ferae naturae.
2. In charging certain offences it is required that they should be stated to
be wilfully done. Arch. Cr. Pl. 51, 58; Leach's Cr. L. 556.
3. In Pennsylvania it has been decided that the word maliciously was an
equivalent for the word wilfully, in an indictment for arson. 5 Whart. R.
WILL, criminal law. The power of the mind which directs the actions of
2. In criminal law it is necessary that there should be an act of the will to
commit a crime, for unless the act is wilful it is no offence.
3. It is the consent of the will which renders human actions commendable or
culpable, and where there is no win there can be no transgression.
4. The defect or want of will may be classed as follows: 1. Natural, as that
of infancy. 2. Accidental; namely, 1st. Dementia. 2d. Casualty or chance. 3d.
Ignorance. (q. v.) 3. Civil; namely, 1st. Civil subjection. 2d. Compulsion. 3d.
Necessity. 4th. Well-grounded fear. Hale's P. C. c. 2 Hawk. P. C. book 1, c.
WILL or TESTAMENT. The legal declaration of a man's intentions of what
he wills to be performed after his death. Co. Litt. 111; Swinb. Pt. 1, s. II. 1;
Shep. Touch. 398; Bac. Abr. Wills, A.
2. The terms will and testament are synonymous, and they are used
indifferently by common lawyers, or one for the other. Swinb. p. 1, s. 1. 5;
Bac. Ab. Wills. A. Civilians use the term testament only. See Testament.
3. There are five essential requisites to make a good will.
4. - 1. The testator must be legally capable of making a will. Generally all
persons who may make valid contracts can dispose of their property by will. See
Parties to contracts. This act requires a power of the mind freely to dispose of
property. Infants, because of their tender age, and married women, on account of
the supposed influence and control of their husbands, have no capacity to make a
will, with these exceptions, that infants at common law may dispose of their
personal estate, the males when over fourteen years of age, and the females when
over twelve; this rule in relation to infants is not uniform in the United
States. Swinb. p. 2, s. 2; Bac. Ab. Wills, B. Persons devoid of understanding,
as idiots and lunatics, cannot make a will.
5. - 2. The testator at the time of making his will must have animum
test-andi, or a serious intention to make such will. If a man therefore
jestingly or boastingly and not seriously, writes or says that such a person
shall have his goods or be his executor, this is no will. Bac. Ab. Wills, C;
Com. Dig. Estates by Devise, D 1. See 4 Serg. & Rawle, 545; 2 Yeates, 324; 5
Binn. 490; 1 Des. R. 543.
6. - 3. The mind of the testator in making his will must be free, and not
moved by fear, fraud or flattery. In such cases the will is void or at least
voidable. Bac. Ab. Wills, C; see 3 Serg. & Rawle, 269. Vide influence.
7. - 4. There must be a person to take, capable of taking; for to render a
devise or bequest valid there must be a donee in esse, or in rerum natura, and
one that shall have capacity to take the thing given, when it is to vest, or the
gift shall be void. Plowd. 345. See Legatee.
8. - 5. The will must be put in proper form., Wills are either written or
9. - 1. A will in writing must be, 1. Written on paper or parchment; it may
be in any language, and in any character, provided it can be read or understood.
2. It must be signed by the testator or some person authorized by him; but a
sealing has been held to be a sufficient signing. 2 Str. 764. But see 3 Lev. R.
1; 1 Const. R. 343; 18 Ves. R. 183; 2 Ball & B. 104 5 Mood. R. 484, and
article To sign. And it ought to be signed by the attesting witnesses. In some
states three witnesses are required, who should sign the will as such at the
request and in the presence of the testator and of each other. This formality
should generally be pursued, as the testator may have lands in such states which
would not pass without it. See, as to the attestation of wills, Bac. Ab. Wills,
D; Rob. on Wills, c. 1, part 15. 3. It must be published, that is, the testator
must do some act from which it can be concluded that he intended the instrument
to operate as his will. 6 Cruise, 79; 4 Burn's Eccl. Law, 119. As to the
republication of wills, see Bac. Abr. Wills, D 3; and article Publication. 4. To
make a good will of goods and chattels there must be an executor named in it,
otherwise it will be a codocil only, and the party is said to die intestate; in
such a case administration must be granted. Bac. Abr. Wills, D 2.
10. - 2. A nuncupative will or testament, is a verbal declaration by a
tes-tator of his will before a competent number of legal witnesses.
11. Before the statute of frauds they were very common, but by that statute,
29 C. H. c. 3, which has been substantially adopted in a number of the states,
these wills were laid under many restrictions. Vide Dane's Ab. chap. 127, a. 2;
3 Harr. & John. 208; 6 Munf. R. 123; 1 Munf. R. 456; 4 Hen. & Munf.
12. In New York nuncupative wills have been abolished, except made by a
soldier while in actual military service, or by a mariner while at sea. 2 New
York Revised Statutes, 60, sec. 22. As to nuncupative wills in Louisiana, see
Testament nuncupative; and Civil Code of Louisiana, article 1574.
13. It is a rule that the last will revokes all former wills. It follows then
that a man cannot by any testamentary act impose upon himself the inability of
making another inconsistent with and revoking the first will. Bac. Ab. Wills, E;
Swinb. pt. 7, s. 14.
14. A will voluntarily and intentionally made by a competent testator,
according to the form required by law, may be avoided, 1st. By revocation, see
Revocation; Bac. Abr. Wills, G 1; Vin. Abr. Devise, P; 1 Rolle, Ab. 615; Com.
Dig. Estates by Dev. F; and, 2d. By fraud.
15. Among the civilians they have two other kinds of wills, namely: the
mystic, which is a will enveloped in a paper and sealed, and the witnesses
attest that fact, the other is the olographic; which is wholly written by the
testator himself. See Testament. As to wills and testaments, see Swinburne on
Wills; Roberts on Wills; Lovelass on Wills; Roper on Legacies; Lowndes on
Legacies; Will. on Ex. pt. 1; Vin. Abr. Devise; Rolle's Abr. Devise; Bac. Abr.
Wills and Testaments; Com. Dig. Estates by Devise; Nels. Abr. h. t.; Amer. Dig.
Wills; Whart. Dig. Wills; Toll. on Executors; Off. Ex.; Orph. Legacy; Touchst,
ch. 23 Civil Code of Louisiana, B. 3, tit. 2; Bouv. Inst. Index, h. t.; and the
articles Devise; Legacy; Testament.
WINCHESTER MEASURE. The standard measure originally kept at
Winchester, in England.
WINDOW. An opening made in the wall of a house to admit light and air,
and to enable those who are in to look out.
2. The owner has a right to make as many windows in his house when not built
on the line of his property as he may deem proper, although by so doing be may
destroy the privacy of his neighbors. Bac. Ab. Actions in general, B.
3. In cities and towns it is evident that the owner of a house cannot open
windows in the partition wall without the consent of the owner of the adjoining
property, unless he possesses the right of having ancient lights. (q. v.) The
opening of such windows and destroying the privacy of the adjoining property, is
not, however, actionable; the remedy against such encroachment is by obstructing
them, without encroaching upon the rights of the party who opened them, so as to
prevent a right from being acquired by twenty years use. 3 Camp. 82.