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Gornell Law School Library
Cornell University Libra

‘iin
THE

LAW OF WILLS

AND THE MANNER OF THEIR

DRAFTING, EXECUTION, PROBATE
AND CONTEST

TOGETHER WITH

TESTAMENTARY FORMS

By
GEORGE W. THOMPSON

Of the Indianapolis Bar

INDIANAPOLIS
THE BOBBS-MERRILL COMPANY
PUBLISHERS
138.7277),
CopyRIGHT 1916

By Tue Bosss-MERRILL COMPANY
 

PREFACE

’ The object of this work on wills is two-fold. In the first place
it is designed to fill the real purpose of a text-book by stating in
concise form the modern law of wills as deduced from the stat-
utes and adjudicated cases. It has been the aim of the author to
present in moderate compass the entire law of wills and cite ample
authorities on every question discussed. An attempt has been
made to cite all the leading and well-considered cases upon the
several topics, and to bring them down to the latest moment, so
as to give the true state of the law at the time of publication.

The second, and by no means the least important, object of
this work is to furnish the busy lawyer a ready reference or
guide in the preparation, execution, probate, and contest of will;
a book to which he can readily turn, after receiving his instruc-
tions from the testator, and ascertain if the dispositions are per-
missible and proper, or whether they should be abridged or en-
_ larged. By its use defects or ambiguities in the instrument may
be discovered and corrected before it is too late. This feature of
the work is intended to deal with testamentary dispositions from
an ante-mortem rather than a post-mortem standpoint.

It is obvious to every lawyer that litigation over wills would
be greatly lessened if more attention were given to their plan and
preparation. If a will clearly expresses the wish of the testator
and is executed with all the formalities required by law it will
not only be a credit to the lawyer who prepared it, but it will
safeguard the testator’s estate and devolve it in accordance with
his desire. Hence it is the aim of this work to assist the busy
lawyer in drafting a will that will carry out the wishes of the
testator and will be both safe and sound.

With this end in view many practical hints and valuable sug-
gestions on the drafting, execution, probate, and contest of wills
have been included. Also a complete and comprehensive set of
iv PREFACE

forms and precedents on all the subjects which may arise in draft-
ing a will has been given. These forms are of three classes, (1)
precedents for particular clauses, (2) complete wills and adjudi-
cated forms, and (3) extracts from wills of famous persons. All
these forms have been selected with great care and their number
is far in excess of those in any contemporaneous work.

The work is prepared for use in every state in the United
States. As an aid in the preparation of a will for a testator
domiciled in a foreign state or country, or for a resident testator
owning real estate in a foreign state or country, a digest of the
statutes of wills of such foreign states and countries, and also
all treaties between the United States and foreign powers per-
taining to the testamentary disposition of property within the
respective jurisdictions, have been included.

With this epitome of the scope of the work and its purpose the
author respectfully submits it to the kindly consideration of the
legal profession. Gzorce W. THompson.

Indianapolis, September 4, 1916.
TABLE OF CONTENTS

CHAPTER I

INTRODUCTORY

SECTION

1.
2.
3.
4.

5.
6.
7.
8.

%°

10.
11.
12.
13.
14,
15.

Devolution of property on death of owner.
Intestate succession.

Gift causa mortis.

Trust deed or declarations of trust.

Deed to take effect at death.

Antenuptial agreements.

Transmission of property by survivorship.
Will and related words defined.
Distinguishing characteristics of a will.
The right to make a will.

Importance of the instrument.

Reasons for making a will.

Functions of a will.

Objects of testamentary disposition.
Inheritance or transfer tax.

CHAPTER II

KINDS AND CLASSES OF WILLS

SECTION

20.
21.
22.
23.
24.
25;
26.
27.
28.
29.
30.
31.
32.
33.

Classification of wills.

Ordinary written wills.

Nuncupative wills at common law.

Nuncuptative testaments under the civil law of Louisiana,
Mystic wills.

Holographic wills.

Contingent or conditional wills.

Alternative wills.

Joint and mutual wills.

Separate wills in relation to property in different jurisdictions.
Wills appointing executor only.

Wills operative at discretion of another.

Codicils.

Contracts to make or not make a will.

Vv
vi TABLE OF CONTENTS

CHAPTER III

LAWS BY WHICH WILLS ARE GOVERNED
SECTION
40. Where a will may be executed.
41. Laws governing wills of real estate.
42. Laws governing wills of personal property.
43. Effect of changing domicil after making will.
44. Law governing capacity of beneficiary to take.
45. Law governing trusts created by will.
46. Laws governing wills executing powers.
47. Laws governing revocation.
48. Laws governing election, dower and inheritance.
49. Laws governing construction and interpretation.
50. Effect of legislative enactment subsequent to execution of will.
$1. Effect of legislative enactment after testator’s death.

COAPIER. Ly
PROPERTY SUBJECT TO TESTAMENTARY DISPOSITION

SECTION

55. What property may pass in general.

56. After-acquired personal property.

57. After-acquired real estate.

58. Property transformed.

59. Interests under trusts and powers.

60. Interests under contract to convey or purchase.

61. Proceeds of insurance.

62. Homestead and other exemptions.

63. Dower, curtesy and statutory allowances.

64. Future or contingent estates.

65. Community property and estates by entireties.

66. Rights of entry.

67. Interests not surviving, and property transferable to others at testator’s
death,

CHAPTER V

TESTAMENTARY CAPACITY AND RESTRICTIONS UPON TESTATOR

SECTION

75. Capacity to make a will in general.

76. At what time capacity must exist.

77. Limitations and restrictions upon capacity in general.

78. Restrictions upon power of testator to give to charitable and religious
uses. :

 
TABLE OF CONTENTS Vii

79. Capacity of aliens.

80. Capacity of infants.

81. Married women.

82. Convicts and persons guilty of crime.

83. Persons of unsound mind.

84. Aged persons.

85. Deaf, dumb and blind persons.

86. Persons under duress or undue influence.
87. Drunkards and drug fiends.

CHAPTER VI

CAPACITY TO TAKE UNDER A WILL AND RESTRICTIONS UPON
BENEFICIARIES
SECTION
95. Capacity to take under a will in general.
96. Aliens.
97. Private corporations.
98. Public and quasi corporations.
99. Unincorporated societies.
100. Charitable, religious and educational institutions.
101. Gifts to separate use of females.
102. Husband or wife.
103. Children and their descendants.
104. After-born children.
105. Adopted children.
106. Illegitimate children.
107. Subscribing witnesses.
108. Paramours.
109, Murderer of testator.

CHAPTER VII
PRACTICAL SUGGESTIONS IN PLANNING AND DRAFTING WILLS

SECTION
115. Knowledge of testamentary law essential.

116. Testator preparing his own will.

117, Testator’s instructions.

118. Inquiry concerning testator’s real and personal property.
119, Inquiry concerning particular kinds of property or interests.
120. Inquiry concerning character and kinds of gifts to be made.
121. Inquiry concerning objects of testator’s bounty.

122. Inquiry concerning management and settlement of estate.
123. Attorney’s advice and explanation to testator.

124. Inquiry into testator’s capacity.

125. Precaution against fraud, undue influence and mistake.
vili TABLE OF CONTENTS

126. Precautionary measures where contest is probable.
127. Selecting attesting witnesses.

128. Suggestions concerning the making of codicils.
129. Time employed in preparation of will.

130. Testing the will before death.

131. Depositary of wills.

CHAPTER VIII

KINDS AND CHARACTER OF DEVISES AND LEGACIES

SECTION

135. Devises and legacies in general.
136. General devises.

137. Specific devises.

138. General legacies.

139. Specific legacies.

140. Demonstrative legacies.

141. Additional or cumulative legacies,
142. Substitutional legacies.

143. Residuary devises and legacies.

CHAPTER IX

FORM AND LANGUAGE OF WILLS

SECTION
150. Form of instrument.

151. Separate instruments and separate sheets of paper.
152. Incorporation by réference.

153. Incomplete and uncertain instruments.

154. Repugnancy.

155. Language in which a will may be written.

156. Alterations and additions.

157. Grammatical requirements.

158. The use of technical words.

159. Punctuation and capitalization.

CHAPTER X

DESIGNATING BENEFICIARIES AND THEIR SHARES
SECTION
165. Certainty of designation.
166. Designating the beneficiary by name.
167. Designating beneficiary by description.
168. Gift to more than one person.
169. Heirs and lawful heirs,
170. Next of kin.
171,
172.
173.

174,
175,
176,

177.
178.
179,
180.
181,
182.
183,
184.
185.
186.
187.
188.
189.

190.

191.
192.
193.
194,
195.

TABLE OF CONTENTS ix

Representatives, legal representatives and personal representatives.

Husband and wife.

Issue, lawful issue, legitimate issue, immediate issue and issue of the
body.

Descendants.

Offspring.

Children, grandchildren, adopted children, step-children, illegitimate chil-
dren and children en ventre sa mere.

Brothers and sisters.

Nephews and nieces,

Cousins.

Family.

Relatives or relations.

Servants and employés.

Creditors.

Debtors.

Corporations and associations generally.

Unincorporated societies and assemblages.

Charitable corporations or associations.

Educational objects.

Religious societies and organizations.

Class in general.

Language denoting gift to class.

Time of determination of class.

Persons included in gift to class.

Shares or portions in general.

Per capita and per stirpes.

CHAPTER XI

LANGUAGE DESCRIPTIVE OF PROPERTY DEVISED OR BEQUEATHED

SECTION

200.
201.
202.
203.
204.
205.
206.
207.
208.
209.
210.
211.
212.
213.
214.

Failure to describe property.

Certainty of description.

Conflicting and repugnant descriptions.

False and erroneous descriptions,

Language passing entire estate.

Share, part or portion.

After-acquired property.

Estate.

Property.

Effects.

Description of real estate in general.

What words will carry real property.

Particular descriptions of real estate.

Rents, income and profits of real estate.

What words will carry personal property.
e
x

215.
216.
217.
218.
219,
220.
221.
222.

TABLE OF CONTENTS

Money and cash.

Goods and chattels.

Furniture, household furniture and household goods.
Stock.

Bonds, mortgages and securities.

Notes, accounts and choses in action.

Insurance.

Interest, income or profits of personal property.

CHAPTER XII

ESTATES OR INTERESTS CREATED AND THEIR MODE OF CREATION

SECTION

230.
231.
232.
233.
234,
235.
236.
237.
238.
239,
240.
241,
242.
243.
244,
245.

In general.

Estates or interests created by implication.
Absolute gifts of personalty.

Life estate in personalty.

Fee simple in real estate.

Limited or conditional fees.

Life estates in real estate.

Life estates with power of disposition.
Estates tail.

Estates for years.

Joint tenancy and tenancy in common.
Estates in remainder.

Executory devises.

Gifts of a use.

Rule in Shelley’s Case.

Rule in Wild’s Case.

CHAPTER XII

VESTED AND CONTINGENT ESTATES AND INTERESTS

SECTION

250.
251.
252.
253.
254.
255.
256.
257.
258.

Vested and contingent interests defined and distinguished.
Intention of testator respecting vesting.

Construction in favor of vesting.

Condition or contingency on which interest vests.

Vesting under certain words of futurity.

Vesting indicated by form of gift.

Interest contingent because of contingency of person.
Vested interest subject to open and let in.

Vested interest subject to be divested.
TABLE OF CONTENTS Xi

CHAPTER XIV

RULE AGAINST PERPETUITIES
SECTION
265. Meaning of perpetuity in law.
266. Common-law rule.
267. Statutory modifications of the rule.
268. Nature and purpose of the rule.
269. Period allowed for vesting.
270. Estates or interests subject to the rule.
271. Application of rule to charitable gifts.
272. Effect of directions to accumulate the income.
273. Disposition of property where gift void under the rule against perpetui-
ties.

CHAPTER XV

CONDITIONS AND RESTRICTIONS
SECTION
280. How conditions defined and created.
281. Void and repugnant conditions.
282. Effect on estate when condition fails.
283. Conditional limitations.
284. Survivorship as a contingency.
285. Gifts over on death as sole contingency.
286. Death without issue or heirs as condition to gift over.
287. Conditions putting beneficiary to his election.
288. Conditions restricting marriage.
289. Conditions favoring divorce or separation.
290. Conditions against contest of will.
291. Conditions against claims against estate.
292. Conditions against bankruptcy or insolvency.
293. Conditions as to residence, occupation, education or religion.
294. Conditions as to name or other personal characteristics of beneficiary.
295. Conditions as to support, payment of debts, etc.
296. Conditions against alienation in general.
297. Conditions restraining married women from alienating.

| CHAPTER XVI

LAPSE, AND METHODS OF PREVENTING
SECTION
305. Lapsed and void gifts in general.
306. Death of beneficiary as cause of lapse.
307. Causes of lapse other than by death of beneficiary.
308. Devolution of lapsed legacies and devises.
309. Intention of testator respecting lapse.
Xil TABLE OF CONTENTS

310. Lapse prevented by statutory provisions.

311. Lapse prevented by substitution or gift over.
312. Lapse prevented by gift over after gift to a class.
313. Lapse prevented by residuary clause.

CHAPTER XVII

CHARGING SPECIFIC PROPERTY WITH PAYMENT OF DEBTS AND
LEGACIES

SECTION

320. Legacies and debts payable out of personalty.

321. Express charge of legacies upon realty.

322. Implied charge of legacies upon realty.

323. Charging realty with payment of annuity or support.

324. Charging real estate specifically devised with payment of debts and
legacies.

325. Charging debts and legacies upon personal property specifically be-
queathed.

326. Effect of residuary clause blending realty and personalty.

327. Exoneration of personalty from liability for debts and legacies,

CHAPTER XVIII

TESTAMENTARY TRUSTS

SECTION

335. Testamentary trusts defined and distinguished.
336. Essentials of a testamentary trust.

337. Purposes of testamentary trusts.

338. Words creating testamentary trust.

339, Trusts by precatory words.

340. Intention of testator to create a trust.

341. Trusts implied from context of will.

342. Trust ex maleficio.

343. Passive and active trusts.

344. What property may be subject of trust.

345. What constitutes income from trust property.
346. Trusts for the accumulation of income.

347. Time from which income is to be estimated.
348. Alienation or assignment of income by anticipation.
349. Application or payment of income.

350. Who may be a trustee.

351. Title or interest of trustee.

352. Who may be a cestui que trust.

353. Estate or interest of cestui que trust.

354. Trust created for benefit of married women.
355. Effect of provisions for maintenance, support and education.
TABLE OF CONTENTS Xill

356. Rights of creditors respecting trust funds.
357. Duration of trust term.

358. Termination of the trust.

359, Effect of failure of purpose of trust.

CHAPTER XIX

TESTAMENTARY POWERS
SECTION
365. Testamentary powers in general.
366. Classification of testamentary powers.
367. Purposes of testamentary powers.
368. Creation of testamentary powers.
369. Who may be donee of power.
370. Who may exercise power where no person designated.
371. Joint donees of power.
372. Discretion of donee.
373. Delegation of testamentary powers.
374. To whom appointment under power may be made.
375. Apportionment of shares and exclusion of appointees.
376. Estates or interests appointed.
377. Statutory regulation of powers.
378. Power to lease.
379, Power to mortgage.
380. Power to sell or exchange.
381. Power to manage, control, improve and invest.
382. Advancements under power.

CHAPTER XX

PROVISIONS CONCERNING MANAGEMENT AND SETTLEMENT
OF ESTATE

SECTION
390. Directions concerning investments.

391. Instructions as to voting shares.

392. Selling real estate to pay debts.

393. Paying debts and funeral expenses.

394. When legacies payable.

395. Payment of legacies in case of shrinkage.

396. Payment of interest on legacies.

397. Appointing agents and attorneys.

398. Applying proceeds of sale or mortgage of trust property.
399. Authorizing compromise of claims.

400. Inventories, appraisements and reports.

401. Auditing accounts and examining securities.

402. Distribution in kind.

403. Insuring property belonging to estate.
XIV TABLE OF CONTENTS

CHAPTER XXI

PROVISIONS RESPECTING EXECUTORS, TRUSTEES AND

GUARDIANS
SECTION
410. Appointment of executors.
411. Appointment of trustees.
412. Appointment of guardians.
413, Death, resignation, renunciation or relinquishment of executors and
trustees.
414. Liability of executors.
415. Liability of trustees.
416. Executor’s bond.
417. Trustee’s bond.
418. Authority of less than all executors or trustees to act.
419. Conflicting relations of executor and trustee.
420. Authority and duties of executors.
421. Authority and duties of trustees.
422. Compensation of executors, trustees and guardians.

CHAPTER XXII

MISCELLANEOUS PROVISIONS AND RECOMMENDATIONS

SECTION

430. Provisions disposing of testator’s body.
431. Disinheritance of heirs.

432. Provision for construction by umpire.
433. Provisions respecting advancements,
434. Ademption and satisfaction of legacies.
435. Provision against void gift.

CHAPTER XXIII

EXECUTION OF WILLS
SECTION
440, Requisites of execution in general.
441. Testator’s knowledge or understanding of contents of will.
442, Signature of testator.
443. Signature of testator’s name by another.
444. Location of signature.
445. Publication of will.
446. Attestation by witnesses.
447. Attestation clause.
448. Competency of attesting witnesses.
449. Attestation at the request of testator.
450. Signing by witnesses in presence of testator.
TABLE OF CONTENTS XV

451. Witnesses signing in presence of each other,
452, Alterations and additions.

453. Execution of a holographic will.

454. Execution of a nuncupative will.

CHAPTER XXIV

REVOCATION
SECTION
460. Revocation in general.
461. By writing not testamentary in character.
462. By a subsequent will.
463. By codicil. ,
464. Mutilation, cancelation, or destruction.
465. By alterations and additions.
466. Changes in condition or circumstances of testator—In general.
467. By marriage, and by marriage and birth of issue.
468. Revocation by divorce.
469. By sale or conveyance of property.
470. Revocation of joint or mutual wills.

CHAPTER XXV

REPUBLICATION AND RE-EXECUTION
SECTION
475, Republication at common law.
476. Republication under statutes.
477. Revival depending on intention of testator.
478. Republication by codicil.
479, Effect of republication.
480. Re-execution of wills.

CHAPTER. XXVI

PROBATE OF WILLS

SECTION

485. Probate of wills in general.

486. Rights and interests under unprobated will.
487. Place of probate.

488. What must be probated.

489. Production of will for probate.

490. Who may be proponent of a will.

491. Jurisdiction of courts in probate of wills.
492. Form and contents of application.

493. Notice of proceedings for probate.

494, Probate in common form.

495. Probate in solemn form.
Xvi TABLE OF CONTENTS

496. Repropounding a will once probated or rejected.

497. Hearing where application not formally contested.

498. Evidence and burden of proof.

499. Time of competency of witnesses.

500. Probate where will valid in part only.

501. Probate of conditional and alternative wills.

502. Probate of joint, double, mutual and simultaneous wills.
503. Probate of nuncupative wills.

504. Procedure to establish and probate lost or destroyed will.
505. Degree of proof required to establish a lost or destroyed will.
506. Probate of foreign wills.

507. Uniform foreign probate law.

508. The effect of probate.

509. Revocation of probate.

CHAPTER XXVII

CONTEST OF WILLS
SECTION
515. Various methods of contest.
516. Nature of proceeding to contest.
517. Who may oppose or contest probate.
518. Who may contest a probated will.
519. When contestant estopped.
520. Limitation of time for contest.
521. Jurisdiction of actions to contest wills.
522. Jurisdiction of federal courts.
523. Parties in actions to contest wills.
524. Grounds for contest in general.
525. Pleadings in actions to contest wills.
526. Burden of proof. 7
527. Issue in general.
528. Invalidity of execution as an issue.
529. Issue of testamentary incapacity.
530. Undue influence as an issue.
531. Issue of fraud and forgery.
532. Trial.
533. Evidence.
534. Verdict and decree.

CHAPTER XXVIII

DIGEST OF STATUTES
SECTION
540. Alabama.
541. Alaska.
$42. Arizona,
543,

545.
546.
547,
548.
549,
550.
551.

552.
553.
554,
555.
556.
557.
558.
559.
560.
561.
562.
563.
564.
565.
. Montana.
567.
568.
569.
570.
571.
572.
573.
574,
575.
576.
577.

578.

579.

580.

581.

582.

583.

584.
585.

586.

587.
588.
589.

TABLE OF CONTENTS

Arkansas.

. California.

Colorado.
Connecticut.
Delaware.
District of Columbia.
Florida.
Georgia.
Hawaii.
Idaho.
Illinois.
Indiana.
Towa.
Kansas.
Kentucky.
Louisiana,
Maine.
Maryland.
Massachusetts.
Michigan.
Minnesota.
Mississippi.
Missouri.

Nebraska.
Nevada.

New Hampshire.
New Jersey.
New Mexico.
New York.
North Carolina,
North Dakota.
Ohio.
Oklahoma.
Oregon.
Pennsylvania.
Philippine Islands.
Porto Rico.
Rhode Island.
South Carolina.
South Dakota.
Tennessee.
Texas.

Utah.

Vermont.
Virginia.
Washington.

. West Virginia.

Xvil
XVili TABLE OF CONTENTS

591,
592.
593.
594,
595,
596.
597.
598.
599.
600.
601.
602.
603.

Wisconsin,
Wyoming.
British Columbia.
England and Ireland.
Manitoba.
New Brunswick.
Newfoundland.
Nova Scotia.
Ontario.
Other British possessions.
Quebec.
Saskatchewan.
Scotland,

CHAPTER XXIX

TREATIES AND CONVENTIONS

SECTION

610.
611,
612.
613.
614.
615.
616.
617.
618.
619.
620.
621,
622.
623.
624.
625.
626.
627.
628.
629.
630.
631.
632.
633.
634,
635.
636.
637,
638.
639,
640.

Treaties affecting disposition and transmission of property.
Argentine Republic.
Austria-Hungary.
Bavaria.

Belgium.

Bolivia.

Brazil.

Brunswick and Luneburg.
Columbia.

Costa Rica.
Denmark.

France.

German Empire.
Great Britain.
Greece.

Gautemala.

Haiti.

Hanseatic Republics.
Hesse.

Honduras.

Italy.

Japan.

Kongo.
Mecklenburg-Schwerin,
Morocco.
Netherlands.
Ottoman Empire,
Paraguay.

Persia.

Prussia,

Roumania.
TABLE OF CONTENTS xix

641. Russia.

642. Saxony.

643. Servia.

644. Spain.

645. Sweden and Norway.
646. Switzerland.

647. Tripoli.

648. Wurttemberg.

649. Hague Convention.

CHAPTER XXX

FORMS AND PRECEDENTS FOR PARTICULAR CLAUSES

ArtTIcLE 1. IntTRopucTorY

SECTION
655. Generally.
ARTICLE 2. CoMMENCEMENT CLAUSES

656. Commencement clauses of a will.
657. Commencement of codicil.

Articte 3. Speciric Lecacies anp Devises

658. Specific bequests.

659. Bequest of bonds.

660. Bequest of cash on hands to wife.

661. Bequest to wife of personal and household effects.

662. Specific legacy in proceeds of bonds.

663. Specific legacy of stock.

664. Specific legacy—Gift of stock in trust for grandson.

665. Bequest of business to son.

666. Confirming daughter’s right to a deposit in her name in a savings bank.
667. Devise of lot.

668. Devise of dwelling-house to wife for life, with remainder to sons.
669. Devise of farm with crops, live stock, implements, etc.

ArTICLE 4. GENERAL Lecacies AND DevisEs

670. Pecuniary legacies.

671. Bequest to wife for immediate use.

672. Legacies to wife—One payable immediately.
673. Legacy to wife to be paid in instalments.
674. General gifts of estate in shares,

675. General devise.

Articte 5. DEMoNSTRATIVE, CUMULATIVE AND SUBSTITUTIONAL GIFTS

676. Demonstrative legacies.
677. Demonstrative legacy with proviso for ademption.
XxX TABLE OF CONTENTS

678. Cumulative legacies.
679. Substitutional legacy.

Articte 6. Lrcactes CHARGED

680. Legacies charged on estate.

681. Legacies charged on realty.

682. Legacies charged upon land.

683. Charge to secure payment of legacies.
684. Charge of legacies.

685. Legacy charged on specific real estate,
686. Charge of support for son.

Articte 7. Resipuary Lecactes anp DevisEs

687. Residue of personal estate.

688. Residuary clause.

689. Residue of personalty to wife.

690. Residue of personalty to children as a class with provision against lapse.

691. Residue of personalty to children with substitution of issue.

692. Residuary bequest per capita.

693. Residuary legacy to daughters.

694, Legacy of residue of personalty to several in equal shares.

695. Advances to a son brought into hotchpot in distribution of residue.

696. Residue of realty and personalty to one.

697. Residuary devise and bequest specifying property, which gives residuary
legatee no right to lapsed legacies. ’

698. Residue of realty and personalty to children and issue of deceased chil-
dren.

699. Residue of real and personal estate to trustees.

700. Residue of real estate to son for life with remainder to trustees.

701. Residue according to law—No power of sale.

702. Bequest of share in residue for life.

703. Allotment of real estate to one residuary legatee.

Articte 8, Brgursts AND Devises to Certain Kinps or BENEFICIARIES

704. Gifts to servants and employés.

705. Bequest to several persons.

706. Afterborn children.

707. Legacy to adopted child.

708. Gifts to absent legatees.

709. Legacy to one whose whereabouts are unknown.
710. Provisions for wife in lieu of dower.
711. Provision in lieu of dower.

712. Legacies to debtors.

713. Releasing debts to debtor.

714, Forgiving debts.

715. Release to a debtor of all debts.
716.
717.
718.
719,
720.
721,
722,
723.
724,
725;
726.
727,
728.
729,
730.
731.
732.
733.
734.
735.
736.
737,
738.
739,
740.

741.
742,

743,

744,
745.
746,
747,
748.
749,
750.
751.
752.
753.
754,
755.
756.
757.
758.
759.

TABLE OF CONTENTS XXi

Release of mortgage debt.

Release of son from payment of interest on debts,

Legacy to creditor.

Bequest to executors.

Legacy to a charity.

Devise to churches as tenants in common.

Devise and bequest to a college.

Bequest to namesakes.

Devise to wife for life, then to son in fee.

Devise to children with substitution of issue.

Devise to trustees upon trust to permit unmarried daughters to reside.

Devise to testator’s sons with gifts over if they die preceding testator.

Devise to several as tenants in common, with cross limitations.

Legacy to one or to his children by substitution.

Legacy to two sisters or the survivor.

Legacy to children to equalize share.

Bequest per stirpes, granting each heir of L. A. a full share.

Devise to a class, heirs of the body.

Devise and bequest per capita.

Devise per capita.

Gift to class.

Gift per capita.

Bequest per stirpes.

Gift to children upon the death of the wife.

Bequest to go to personal representatives (executors or administrators)
at death.

Estate given according to laws of descent.

Legacies to executors and trustees.

ArticLe 9, Bequests AND Devises or Certain Kinps or Property

Bonds to be purchased and held in trust for children at twenty-one or
marriage.

Bequests or devises of community property and declarations as to such.

Provision as to wife’s separate property.

Confirming conveyances.

Debt owing the testator.

Dumb animals.

Furniture.

Furniture to daughters.

Furniture and personal effects to daughters.

Furniture of her bedroom and sitting-room to daughter.

Leasehold house with furniture.

Power of sale of furniture and effects bequeathed.

Furniture to wife during her widowhood, afterward to children.

Declaration dispensing with inventory of furniture bequeathed.

Farming stock.

Plantation tools and stock.

Rights of fellow or patron.
xxii TABLE OF CONTENTS

760,
761.
762,
763.
764,
765.
766.
767.
768,
769.
770.
771.
772.
773.
774.
775.
776.
777.
778,
779.
780.
781.
782,

783.
784.
785.
786.
787.
788.

789,
790.
791.
792,

793.
794.
795.
796.
797.
798.
799.
800.
801.
802.
803.

Devise of fixtures.

Heirlooms.

Heirlooms and keepsakes,

Insurance policy.

Jewelry.

Bequest of personal property.

Keepsakes or mementos.

Letters and manuscripts.

Manuscripts to literary executor.

Private letters and papers.

Memorials.

Monument.

Cemetery lot.

Bequest to erect and keep in repair monument.

Portraits.

Bequest of income from stock for life.

Property of others in testator’s possession.

Share in partnership to a son under a power in the partnership articles.

Direction as to taxes.

Devise of mortgaged property.

Devise subject to mortgage not to be paid out of personalty.

Devise of buildings to son subject to lease and mortgage.

Direction that incumbered property shall bear the burden of the incum-
brance.

Devise free from mortgage debt.

Residénce as home for testator’s family,

Gift over after invalid gift.

Invalid gifts not to defeat will.

Assignment of book debts.

Assignment of business and good will by parent to son.

Articte 10. Creation oF Dirrerent Kinps or Estates

Devise of fee simple—Indiana.

Devise to wife in fee—Iowa.

Fee simple—Pennsylvania.

Devise to wife in fee making her an executor, but not creating a trust
—Illinois.

Devise in fee.

Life estate—Pennsylvania.

Life estate to wife—Maine.

Devise of life estate—Illinois.

Life estate in realty and personalty—Pennsylvania.

Life estate to husband—Indiana.

Devise to wife for life—Michigan.

Life estate—Pennsylvania,

Bequest by wife for maintenance of husband—Massachusetts.

Life estate in personalty—Mississippi.

Bequest of money for life—New York.
TABLE OF CONTENTS XXili

804. Life estate—Mississippi.

805. Bequest of life estate in income of personalty—Pennsylvania.

806. Estate for life with power to lease.

807. Devise to wife with power to convey a fee simple title.

808. Gift for life with right to use—Illinois.

809. Bequest of life estate with remainder to personal representatives of life
tenant—Connecticut.

810. Devise to wife for life, with power of sale, and condition against remar-
riage—Maine.

811. Life estate to wife and vested remainder in children—Illinois.

812. Devise for life with remainder over—Missouri, North Carolina.

813. Bequest of personal property for life, with remainder over—Indiana.

814. Devise for a term and for life—Massachusetts.

815. Life estate with power of sale—Maine.

816. Estate for life with power to convey the fee—Illinois.

817. Life estate with power of disposition by will—Tennessee.

818. Life estate with power of disposition, remainder to children—Iowa.

819. Devise of life estate with power of disposal—Maine.

820. Bequest for life with power of disposal—Maine.

821. Devise and bequest for life to wife with power to sell and reinvest, re-
mainder to children—Georgia. :

822. Life estate with power of disposal—Massachusetts.

823. Life estate with power of disposal—New Hampshire.

824. Life estate with power of disposal of fee—North Carolina.

825. Devise for life with power to convey fee—Massachusetts,

826. Devise to wife for life with limited power of disposal—Michigan.

827. Devise to wife for life or so long as sie remains a widow—Pennsylvania.

828. Estate for life or widowhood with power of disposal—Georgia.

829. Execuitory devise—Connecticut.

830. Determinable fee—Illinois.

831. Defeasible fee—Illinois,

832. Base or determinable fee—Illinois.

833. Defeasible fee—Missouri.

834. Determinable fee—North Carolina.

835. Devise of estate tail—Pennsylvania.

836. Devise of real estate to two with power of sale after five years and trust
in proceeds of sale for one.

837. Devise of house and contents and land therewith to wife for life, then
to son.

838. Devise to grandsons, providing for reversion in case of death without
issue—Mississippi.

839, Life estates to children, contingent remainder to grandchildren—Mary-
land.

840. Bequest for sole and separate use of daughter.

841. Estate for years, remainder vested in grandchild—New York.

842. Income to wife, estate vesting in children at her death, to be distributed
when youngest comes of age—Iowa.
XXIV TABLE OF CONTENTS

843,

Devise to son for life, remainder to church, also of another remainder to
church upon definite failure of issue to son—Arkansas.

Articte 11. Provision as To Time oF VEsTING. CoNTINGENT EsTATES

844,
845.
846.
847.
848.

849.
850.
851.
852.

853.
854.
855.
856.

857.
858.

859,
860.
861.

862.

863.
864.
865.
866.
867.
868.
869.
870.
871.
872.
873.
874.
875.

Legacy to vest when legatee is twenty-one.

Legacy to vest on marriage.

Vested remainder.

Remainder vesting at death of life tenant.

Bequest to son when he attains age of twenty-one with maintenance
‘meanwhile,

Remainder vesting at testator’s death, enjoyment postponed.

Remainder to children jointly, vesting on testator’s death.

Devise of fee to vest when son reaches majority.

Legacy to son to vest at twenty-five, interest in the meantime to be ap-
plied for maintenance, with power to apply principal for his advance-
ment.

Legacies to nephew and niece to be paid at twenty-one or on marriage.

Legacies to several children to be paid at twenty-one or on marriage.

Remainder vesting at testator’s death.

Legacies in trust to several with restraint on anticipation by female
legatees during coverture.

Legacy in trust for the family of a son who is or may become bankrupt.

Fee with remainder contingent on death without disposal or without
issue.

Devise to son for life, with contingent remainder to lawful heirs (not
within rule in Shelley’s Case).

Estate for life with remainder over, vested if children exist when tes-
tator dies, contingent if they do not.

Absolute bequest in trust for daughters, limited over on marriage and
birth of issue.

Bequest to daughter on termination of marriage.

ArticLe 12. Girrs To CHarITIES

Bequest to charity, beneficiaries to be selected by life tenant.
Bequest for charitable use.

Devise for charitable use.

Bequest to charity on condition subsequent.

Charitable bequest to purchase and distribute religious books.
Charitable gift for use of most deserving poor of a city.
Bequest to poor of a foreign city.

Bequest to worthy poor of a city.

Bequest for benefit of poor.

Devise to church to be applied to foreign missions,

Gift to home for aged women.

Bequest to endow bed in hospital.

Bequest for charitable purposes.
TABLE OF CONTENTS XXV

876. Remainder to charity.

877. Bequest to town for school purposes.

878. Trust for suppressing sale of intoxicating liquors.

879. Devise to charity or to bishop individually upon failure.

880. Charitable bequest in discretion of executor.

881. Bequest to Salvation Army, valid on incorporation.

882. Bequest to bishop for charity.

883. Alternate charities.

884. Bequest to charities in discretion of executors.

885. Request not to exclude certain classes of books from library.

886. Charitable objects, subscription to.

887. Bequest absolutely, with request to use for charities.

888. Gift to charitable use in foreign country—A municipal corporation as
trustee,

889. Bequest to foreign charities.

ArticLe 13. Conpirions AND REstTRICTIONS

890. Conditional devise.

891. Life estate on condition.

892. Devise on condition precedent.

893. Devise on condition of living on land, with vested remainder.

894. Conditional bequest to son on executor’s approval.

895. Bequest on condition subsequent.

896. Condition against marrying certain persons.

897. Condition as to marriage.

898. Gift to polygamous wife with condition against polygamous remarriage.
899. Bequest on condition of husband’s death. :
900. Provision against contest.

901. Condition prohibiting contest of will.

902. Condition as to disputing will.

903. Legacy conditional on reformation.

904. Bequest on condition of reconciliation.

905. Bequest to son on condition he attend a certain church.

906. Bequest on condition beneficiary is educated a Roman Catholic.

907. Devise conditional on religious connection.

908. Condition to pay annuity, life estate innuring to second wife.

909. Conditional devise for support.

Articte 14, Provisions as To Lapse, ABATEMENT AND Priority or LEcaciEs

910. Lapsed legacies.

911. Provision as to lapse of legacies.

912. General provision against lapse.

913. Provision for lapsed legacy to go to issue or to brothers and sisters, but
excluding issue of deceased brothers and sisters.

914. Devise with provision against lapse.

915. Legacy with provision against lapsing in case of legatee leaving issue.

916. Ademption.-of specific legacies, etc.
XXvi TABLE OF CONTENTS

917. Gift as satisfaction of legacy.

918. Abatement of legacies.

919. Abatement of particular legacies.

920. Certain legacies to abate in case of deficiency.

921. Priority of legacies.

922. Priority of one legacy.

923. Priority of several legacies.

924. Direction as to time at which legacies are to be payable.

Articte 15. ANNUITIES

925. Bequest of annuity.

926, Annuity to wife to be paid in preference to all other bequests.
927, Annuity to husband and wife and the survivor of them.

928. Annuity charged on realty.

929. Proviso that annuitant may elect to take gross sum.

930. Annuity to cease on alienation.

931. Power to purchase annuities.

932. Annuity during term of partnership.

933. Advice to purchase annuity.

Articte 16. Trusts

934. General bequest of personal estate in trust to be converted.

935. Real estate devised to trustees for sale.

936. Securities belonging to testator to become trust funds with power to
change.

937. Life interest in trust estate to widow charged with maintenance of chil-
dren.

938. Trust for wife during her widowhood and children after her death, with
request as to maintenance of children during her life.

939. Trust providing for income of moiety to wife for life, other moiety and

Principal to children.

940. Trust for wife to terminate at age of seventy-five, or on marriage.

941. Residue in trust for children, to be conveyed after twenty-one years.

942, Trust for child during minority.

943. In trust for grandson with contingent remainder.

944. Trust to pay income of fund to three and the survivor.

‘945. Trust in income to several for life, with trust of capital for survivor.

946. Trust for daughters in proceeds of real estate.

947, Life interest in trust estate determinable on bankruptcy, attempt to
alienate.

948. Trust with discretion to apply income for benefit of life tenant and his
family.

949. Reason for creating trust for sons.

950. Trust for son for life, occupancy, use, rents, and profits of real estate,
under control of trustees.

951. Trust for testator’s children to be applied as widow shall appoint.

952. Trust for children and issue of deceased children.
TABLE OF CONTENTS XXVvil

953. Trust for children unequally..

954. Trust for granddaughter.

955. Gift to trustees for investment and pay annuity to son for life or to chil-
dren, upon his bankruptcy or attempted alienation.

956. Trusts for wife and children of son after his death.

957. Trust for children and issue of deceased children at twenty-one or mar-
riage.

958. Bequest in trust for children of sister at twenty-one or marriage.

959. Trust for children at twenty-five, with substitution of grandchildren of
children dead at testator’s death.

960. Trust for children, without devise in terms to trustee to terminate as
children reach age of twenty-five, in discretion of trustees.

961. Trust in personal property for life for afflicted daughter corpus after her
death to her heirs.

962. Devise and bequest to children in dry trust for their issue.

963. Trust for issue of grandchildren.

964. Trust for brother for life, afterward to nephews and nieces in shares
for their lives, and afterward for their children.

965. Residuary trust to terminate at death of sons and their wives.

966. Trust for three nieces for life, then for their children and issue at
twenty-five, etc., with cross limitations.

967. Legacy in trust for housekeeper, becoming part of her estate on her
death.

968. Trust to executors for lives of wife and son or longest liver, with vested
remainder.

969. Trust of an annuity for a spendthrift and his wife and children.

970. Spendthrift trust.

971. Trust for improvident son.

972. Trust for son for life, to cease on his alienation of his interest.

973. Discretionary trust of income after alienation.

974. Income to be applied after alienation as if son were dead.

975. Trust for son for life, determinable on bankruptcy.

976. General proviso that life interest shall cease on bankruptcy or alienation.

977. Trust, income placed beyond reach of creditors, trust to cease on obtain-
ing of judgment.

978. Bequest to trustee to appropriate as he deems best.

979, Precatory words which do not create a trust.

980. Absolute gift, not a trust.

981. Bequest to daughter to confirm invalid devise.

982. General power of appointment of cestui que trust.

983. General form of ultimate trust.

984. Ultimate trust for person who would take under statutes of descent.

985. Trust for testator’s brothers and sisters, and their issue by right of rep-
resentation. .

986. Trust for preachers, no trustee appointed.

987. Short will leaving property to trustees and referring to deed of trust.

988. Discretion in terminating trust.

989. Power of appointment after termination of trust estate.
XXV

990.
991.

992.
993.
994,
995.

996.

997.
998.
999,
1000.
1001.
1002.

1003.

1004.

1005.
1006.
1007.
1008.
1009.
1010.
1011.
1012.
1013.
1014.
1015.
1016.
1017.
1018.
1019.
1020.
1021.
1022.
1023.
1024.
1025.
1026.

1027.
1028.
1029.
1030.

ii TABLE OF CONTENTS

Devise to daughter, with power of appointment.

Request to daughter to keep open a certain house during a certain period
of the year.

Bequest for the “comfortable support” of relatives.

Appointments under trusts.

Refusal to execute power of appointment.

Trust deed, or declaration of trust.

Articte 17. Powers or TRUSTEES

Power to trustees to sell trust property, with advice as to its manage-
ment.

Power to trustees to sell real and personal estate.

Power to hold and invest proceeds of real and personal estate.

Power to lay out streets, etc.

Power to postpone the sale and conversion of real and personal estate.

Recommendation to trustees that real estate remain unsold.

Trust with power to sell and reinvest, but not to carry on, mercantile
business.

Power to retain investments.

Direction as to wasting investments.

Power to compound debts, etc.

Appreciation or depreciation of bonds.

Power to continue mortgages.

Foreclosure of mortgages.

Power for trustees to mortgage trust property.

General direction as td consent’to sales and investments,

General direction for investment of trust moneys.

Power to make investments within a limited range.

Power to vary investments.

Investments and reinvestments.

Power to apply to maintenance of child in trustee’s discretion.

Powers as to advancement, maintenance, and education of children.

Powers to provide for maintenance, etc., out of capital.

Direction as to stock or extra cash dividends.

Power to trustees to make advancements.

Power for trustees to make advances to son out of trust funds.

Power to rebuild.

Erecting buildings and making improvements.

General power to accumulate surplus income.

Power to lease for twenty-one years.

Power to lease furnished house until ‘sold.

Authority to trustees to permit testator’s widow to reside in his man-
sion house.

Auditing and examining accounts.

Payment of commissions.

Power to partition among cestui que trust.

Power to allot specific property in satisfaction of legacies.
TABLE OF CONTENTS XxXix

1031, Proviso that questions arising under the will shall be settled by the
trustees.

1032. Power of trustees to determine matters in doubt.

1033, Declaration that decision of majority of trustees shall be binding.

1034. Power to trustees to carry on testator’s business.

1035. Power to dispose of business.

1036. Disposition of profits from business.

1037. Power to abstain from engaging in business.

1038. Power to continue partnership business.

1039. Power to purchase shares of partners.

1040. Power to trustees to leave capital in partnership business on loan,

1041. Power for trustee to purchase any part of trust estate.

1042. Power for son, who is trustee, to purchase part of the trust estate on
a valuation.

1043. Power for testator’s sons, who are trustees, to purchase.

1044. Power to mortgage.

1045. Request by testator that the trustees for the time being under this will
shall employ a certain attorney.

1046. Trustee who is an attorney at law to charge for business.

1047. Trustees’ receipt clause.

1048. Trustees’ indemnity clause.

1049, Trustees to hold purchased lands upon trusts before declared.

1050. Request to trustees to collect mortgage and purchase land.

1051. Request to trustees to change investment.

1052. Disclaimer of trust under will by one trustee.

1053. Disclaimer of the trusts of a will by a trustee who has renounced pro-
bate thereof,

1054. Direction to trustees under a will to sell stock and invest proceeds of
sale in mortgages.

Articte 18. Powers to Executors anD Provisions As To
MANAGEMENT oF EstTATE

1055. Statement as to debts.

1056. Expenses of contest of will.

1057. Power of sale to executor. ;

1058. Power to executors to sell real and personal estate.

1059. Power to executors to sell real estate with consent of wife.

1060. Power to executors to mortgage and sell real estate.

1061. Directions to executors to sell property, reinvest and pay income.

1062. Power to borrow money.

1063. Power to sign commercial paper.

1064. Power to complete contracts.

1065. Voting shares.

1066. Partition by executors.

1067. Authority to executors to lease.

1068. Power to pay infant’s legacy to parent or guardian.

1069. Executors to have power to convey—Title vesting in them by implica-
tion.
xxXX TABLE OF CONTENTS

1070, Bequest to wife and children distributively—Power to executors to sell.

1071. Direction for sale of property when youngest child is twenty-one, or all
children are married.

1072. Carrying on partnership.

1073. Incorporation of business.

1074. Power to executors to wind up testator’s partnership business.

1075. Power to executors to continue testator’s business.

1076. Power to executors to make arrangements for admission of testator’s
son into his partnership business.

1077. Power to executors to continue loan.

1078. Power to executors to continue loan to son.

1079. Employment of attorneys, etc., by executor.

1080. Employment of clerks, etc., by executors.

1081. Power to executors to compromise and arbitrate.

1082. Insurance by executors.

1083. Keeping records by executors.

1084. Inventory, filing of.

1085. Powers of attorney by executors or trustees,

1086. Discretionary powers of executors.

1087. Executor’s receipt.

1088. Request to consult with wife.

1089. Request to an executor in nature of a precatory trust.

1090. Request to literary executor.

1091. Request to destroy letters.

1092. Interest upon legacies.

1093. Apportionment of interest.

1094. Time of payment of legacies,

1095. Payment of income.

1096. Capitalization of income,

ArticLe 19, Provisions as to APPOINTMENT oF EXECUTORS AND
TRUSTEES AND GUARDIANS

1097. Appointment of executors.

1098. Appointment of executrix without security.

1099, Appointment of executors to serve without bond and settle estate out of
court.

1100. Substitutive appointment of executors and trustees,

1101. Appointment of new executors or trustees.

1102. Appointment of literary executor.

1103. Appointment of executor as to particular property.

1104. Delegation of power to appoint executor.

1105. Power of appointment of executor left to judge.

1106. Appointment of guardian.

1107. Appointment of an agent to manage and wind up testator’s partnership
business.

1108. Trustees, appointment of,

1109. Filling vacancies in board of trustees.

1110. Appointment of new trustees.
TABLE OF CONTENTS Xxxi

1111. Codicil appointing an executor and trustee in place of an executor and
trustee who has died.

1112. Codicil appointing an executor and trustee in place of a son named in
will who has died, and revocation of bequest to son.

1113. Appointment of a new trustee as provided for by will.

1114. Termination of trust on death, etc., of trustee,

1115. Liability of executors and trustees.

1116. Compensation of trustees.

1117. Provision for services to estate.

1118. Compensation of executors.

ArticLe 20. MuiscELLaANrous Provisions

1119. Declaration of domicil.

1120. Request to executors as to cremation,

1121, Naming children. :

1122. Excluding children.

1123, Inequalities as to children or their issue.

1124. Disinheriting children.

1125. Exclusion of certain persons.

1126. Exclusion of adopted children.

1127. Devise of farm to son’s wife and children as joint tenants, and exclu-
sion of son from inheritance.

-1128. Omission of one son.

1129, Disinheriting granddaughter.

1130. Exclusion of son from share in residuary estate,

1131. Antenuptial agreement recognized.

1132. Direction as to division of property.

1133. Direction for conversion.

1134, Equitable conversion.

1135. Advancements to be treated as gifts.

1136. Declaration that sums advanced shall be regarded as gifts.

1137, Advancements to children to be pro tanto in satisfaction of their shares.

1138. Advancements in testator’s lifetime to be brought into account.

1139. Advancement not to be in satisfaction of portions.

1140. Taxes.

1141. Inheritance tax.

1142. Interpretation clauses.

1143. Incorporation of paper in will by reference.

Articte 21. AtTresTATION AND Trestrmonium CLAUSES

1144, Attestation clauses.

1145. Testimonium clauses.
1146. Alteration clause.

1147. Alterations and additions.
XXXii TABLE OF CONTENTS

ArTICLE 22, CopIcILs

1148. Codicil reviving will revoked by testator’s marriage and providing for
wife.

1149. Codicil made after remarriage.

1150. Codicil providing for birth of child,

1151. Codicil bequeathing legacy lapsed by legatee’s death to her children liv-
ing at testator’s decease, payable at age of twenty-one years.

1152. Codicil devising real estate contracted to be purchased subsequently to
execution of will.

1153. Codicil devising land purchased since execution of will.

1154, Codicil making substituted and additional bequests.

1155. Codicil reducing legacy by amount of advances made to legatee.

1156. Codicil substituting children of son who has died.

1157. Codicil revoking bequest.

1158. Codicil revoking a will in the possession of a third party.

1159, Codicil revoking an item.

1160. Codicil revoking a former will previously revoked.

1161. Codicil directing which of two prior wills shall take effect.

1162. Codicil revoking bequests to trustee and appointment of executors, and
substituting trust company as trustee and executor. :

1163. Codicil appointing two new trustees in the place of a deceased and a

; retiring trustee.

1164. Alteration of will by erasure and interlineation.

CHAPTER XXXI

ENTIRE WILLS AND ADJUDICATED FORMS

SECTION

1170. Brief will giving all testator’s property to his wife absolutely.

1171. Devise and bequest of entire estate to wife.

1172. Will devising real estate to testator’s wife for life, and after her death
upon trusts for his children.

1173, Will giving the whole of the testator’s real and personal property to his
brother with substitution of his children or issue. 7

1174, Will giving immediate legacy to wife and residue of property to trustees
in trust for wife for life, with remainder to children.

1175. Will making immediate bequest to wife with other bequest and placing
remainder of property in trust for benefit of wife and children.

1176. Will giving residuary estate to trustees with life interests to son and
his wife, afterward income to son’s children and division of capital
on the death of the longest surviving child living at testator’s de-
cease.

1177. Will of widow devising and bequeathing her estate to trustees in trust
for minor son, with ultimate trust to sisters,
TABLE OF CONTENTS XXXi1i1

1178. Will authorizing executors to carry on the business of the testator’s
firm during the life of his wife and daughter, giving annuity to wife,
income to children, and dividing property on death of wife and
daughter.

1179, Will of a married woman in exercise of a power of appointment in her
marriage settlement.

1180. Agreement to give effect to intended will not executed.

1181. Assignment by way of sale of a legacy.

1182. Will limiting time of sale of real estate.

1183. Joint will by tenants in common.

1184. Joint and mutual will.

1185. Joint will.

1186. Short will.

1187. Will in form of a letter.

1188. Short holographic will.

1189, Will—Fee simple to wife.

1190. Will not in technical legal terms, but explicit, giving life estate to chil-
dren, remainder to grandchildren, living ‘at death of testator.

1191. Will with remainder to church.

1192. Will—Directions to executors to retain real estate two years, then to
sell it.

1193. Directions for sale of real estate by executors—Estate in children vest-
ing at time of distribution.

1194, Will devising property for life with power of disposition of fee.

1195. Determinable fee and executory devise.

1196. Will—Gift of use.

1197. Will—Proceeds of real estate subsequently sold by testator passing as

r ‘personalty.

1198. Will disposing of several plantations—Power to sell and reinvest.

1199. Will—Words in brackets show construction placed on will by court.

1200. Will with codicil, which creates an implied charge on entire estate.

1201. Will—Trust for wife and daughter—Remainder to heirs on failure of
issue, ‘

1202. Will under which on death of nephew before testatrix, his legacy lapsed
and was distributed as intestate property.

1203. Will giving life estate with power to sell.

1204, Will—Life estate to wife and daughter, remainder to go according to
intestate laws.

1205. Will—Charge of support for one living in family.

1206. Income, rents and profits for life to wife, fee to children,

1207. Will—Bequests to children of brothers per capita.

1208. Vested remainder—Defeasible fee in remainder—Executory devise.

1209. Will—Trust to executors for support and education of children—Fee in
executors,

1210. Will—Specific legacies—Provision as to contest of husband’s will.

1211, Will—Entire estate community property—All given to wife with power
to sell—Precatory trust for support of testator’s mother and sister.

1212, Will—Life estate to wife—Specific legacies to children.
xxxiv TABLE OF CONTENTS

1213. Will—Gift to wife in lieu of dower—Provision for grandsons condi-
tioned on character—Bequests to charity.

1214, Will—Directions for sale of real estate and distribution of proceeds.

1215. Will—Directions for equitable conversion.

1216. Will creating trust for son during life, though he survives his daugh-
ter, and that grandchildren born after testator’s death have no right
to share in legacy to grandchild dying before reaching age of twenty-
five.

1217, Will made in two countries—Bequests to citizens of foreign countries,
and disposing of property in foreign land.

1218. Will—Property in several states,

1219, Will leaving property to mother and husband of testatrix referring to
children sufficiently to preclude their sharing in estate.

1220. Devise of residue to children in trust; share of child dying before tes-
tatrix to go to children surviving at death of testatrix.

‘1221, Will—Devise to widow for life, remainder to sons on condition prece-
dent.

1222. Will—Life estate given to wife and daughter ; fee by implication to chil-
dren of daughter.

11223, Will—Life estate to children—Contingent remainder in residue to

: grandchildren.

1224, Will—Gifts to a‘class as tenants in common—Codicil.

1225. Will—Trusts—Provisions for advance and payment of claims—Codicil.

1226. Will—Trust for son—Income after death to his widow—Trust for
-daughter.

1227. Will—Trust for son.

1228. Will with alterations and codicil—Devise to nearest blood nelahives:

1229, Will leaving residue to prison association,

1230. Will—Trust for granddaughter—Remainder to charities —Codicil re-
voking gift. 5

1231, Will—Determinable fee—Legacies charged—Directions as to carrying
on insane hospital.

1332. Will—Conditional legacies—Residue to Smithsonian Institution for sci-
entific publications.

1233. Will by husband—Various charitable bequests—Later will by wife, exer-
cising power of appointment given by husband’s will.

CHAPTER XXXII

EXTRACTS FROM WILLS OF FAMOUS PERSONS
SECTION
1240. Will of John James Audubon.
1241. Will of Henry Ward Beecher.
1242. Will of Thomas H. Benton.
1243. Will of James G. Blaine.
1244. Will of Edwin Booth.
1245. Will of David J. Brewer.
1246. Will of Salmon P. Chase.
TABLE OF CONTENTS XXXV

1247, Will of Roscoe Conkling.
1248, Will of Jefferson Davis.

1249, Will of Mary Baker G. Eddy.
1250. Will of Edwin Forrest.

1251. Will of Benjamin Franklin.
1252. Will of Horace Greeley.

1253. Will of Hetty H. R. Green.
1254. Will of Edward H. Harriman.
1255. Will of Sam Houston.

1256. Will of Thomas Jefferson.
1257. Will of Robert E. Lee,

1258. Will of Cecil John Rhodes,
1259. Will of Russell Sage.

1260. Will of Jane Lathrop Stanford.
1261. Will of George Washington.
1262, Will of John R. McLean.
TABLE OF CASES

[References are to Sections.]

A

Abbey v. Christy, 49 Barb. a Y.) 276 445
Abbott v. Lewis, 77 N. H. 255

v. Traylor, 11 Bush as) 335 521
Abel v. Abel, 201 Pa. 169
Abell v. Abell, 75 Md. "aa 353
Abend v. McKendree College, 174 Il. fa
Abercrombie v. Abercrombie, 27 Ala.

489 200, 359
Abrams v. Moseley, 7 S. Car. 150 506
Abrey v. Duffield, 149 Mich. 248 978
Abshire v. State, 53 Ind. 64 7
Ackerman v. Crouter, ee ne J. Eq. 49 212

v. Fichter, 179 Ind. 103

v. Vreeland, 14 N. y "ha. 2 233
Ackerman, In re, 129 App. Div. (N.

Y.) 584 465
Ackerson v. Fly, 99 Mo. App. 116 33
Acree v. Dabney, 133 Ala. 437 250
Adair v. Brimmer, 74 N. Y. 539 390

v. Craig, 135 Ala. 332

9
Adams v. Adams, 154 os 290 176, a

v. Akerlund, 168 I
v. Cole, 6 Beay, 353 14
v. Cowen, 177 U. S. 471 1135
v. Farley (Miss.) Pe So. 390 41
v. Johnson, 129 . 611 527
v. Morrow, 42 Ma. "434 212
v. Phillips, 132 Ga. 455 486
x Ross, 30 N. J. L. 505 238
Spalding, 12 Conn. on 396
Addenan v. Rice, 19 R. I. 325, 327
Addington v. Wilson, 5 Inde 137 431
Addition v. Smith, 83 Maine 551 395

Adsit 's Estate, In re, Myr. Prob. (Cal.)

520

Ahrens v. Jones, 169 N. 555 342

Albertson, In re, 113 N. ¥ 434 222, 345

Albin v. Parmele, 70 Nebr. 740 244

Albrecht, In re, 136 N. Y. 91 7

Albright v. Albright, ae He St. 381 321

Alchin, In re, L. 230 187

Aldrich v. Aldrich,” re lass 101 340

v. Barton, 153 ‘Cal. 337
Alexander v. sestaee 56 Mo. 413

280, 295

v. Bates, 127 Ala. 328 139

v. De Kermel, 81 Ky. 345 64

v. McMurry, 8 Watts (Pa.) 504 418

v. McPeck, 189 Mass. 34 171

v. Paxson, 47 Pa. St. 12 56

v. Thompson, 38 Tex. 533 323

v. Wallace, 8 Lea (Tenn.) 569 701

Kiesaeder’ s Estate, In re, 149 Cal. 146 288

Alfred v. Marks, 49 Conn. 473 266

Allaire v. Allaire, 37 N. J. L. 312 508

Allardyce v. Hambleton, 96 em 30 744

Allder v. Jones, 98 Md. 101 375, 376

Allen v. Allen, 28 Kans. 18 e 28

v. Allen, 121 N. Car. ue 295

v. Allen, 13 S. Car. a 434

v. Barnes, 5 Utah 100 375

v. Craft, 109 Ind. 476 169, 238, 296

v. Edwards, 136 Mass. 138 184

 

Allen
v. Griffin, 69 Wis.
v. Hoyt, 5 Metc. ‘lass 324
v. Mc arland, ae Til,
v. McGee, 158 Ind. 465 340
v. McPherson, 1 H. L. Cas. 191 500
v. Maddock, 11 Moore P. C. 4

7: %

152, 488
v. Markle, 36 Pa. St. 117 175
v. Mattison (R. I.), 39 Ath 241

526
245
368

320, 326
v. Ruddell, 51 S. Car. 366 379, "1198
v. Stevens, 161 N. Y. 122 78, 357
v. Stewart, 214 Mass. 109 353
v. Watts, 98 Ala. 384

v. Sve piaee Sav. Bank, 69 N.

+ 314, 321
Allen, te re, 151 N. Y. 243 435
Allen’s Succession, 48 La. Ann. 1036
195, 201
Allen’s Will, In re, 25 Minn. 39 442,
ey v. Lawrence, 12 Gray (Mass.)

Ale Estate, In re, 123 Wis. 223
Allison v. Allison, 7 Dana (Ky.) 90
v. Allison, 101 Va. 537 256, 284

Allison’s Eat In re, 104 Iowa 130 526
Allshouse v. Kelly, 219 Pa. 652 108
Almand v. Whitaker, us a 889 195

Almy v. Jones, 17 R. 188
aos v. Walters Ind. 106 N. E.

257
Alsop v. Bowers, 76 N. Car. 168 395
Alsop’s Appeal, 9 Pa. St. 374 180
Alston v. Davis, 118 N. Car. 202 453
Alsup v. Clarke, 15 Lea (Tenn.) 71 991

American Hantst ga ena Union v.
Peck, 10 Mich. 341 50
American act Sc v. Marshall, 15

Ohi
ve Noble, “P Rick, - 5 oe 156
v. Pendleton, 7 W. 49

v. Wetmore, 17 ee ar 186
American Board &c. Beatles Mission v.

Ferry, 15 Fed. 696 194
American Cannel Coal Co. v. Clemens,

132 Ind. 326
American Demat Fund Assn. v. Lett,

42 N. J. E 165
American “o oreien ses Comrs. v.

Ferry, 15 Fed. 432
American Tract oe v. Atwater, 30

Ohio St. 77 99
Ames v. Holderbaum, 44 Fed. 224 393
Ames’ Succession, 33 La. Ann. 1317 103

Ames’ Will, In re, 51 Iowa 596 84

Ametrano v. Downs, 170 N. Y. 388 469
Amherst College v. Ritch, 151 N. Y.
282 78, 342, 415
Amiss v. Walletinebt ae vs Va. 673 416
Amos, In re, 3 Ch. 186
Angie s Estate, In = “ai Phila. (Pa.) 3
Ses v. Gerhard, 140 Pa. St. 153 238
Andersen v. ‘Andersen, 69 Nebr. 565 521
Anderson v. Anderson, 112 N. Y. 104 521

XXXVii
XXXViii

TABLE OF CASES

[References are to Sections.]

Anderson
v. Cary, 36 Ohio St. 506 296
v. Crist, 113 Ind. 65 355
v. Hendrickson, 5 ai J. Eq. 106 394
v. Irwin, 101 Ill. 504
v. Messinger, 146 Fed, a 241, 392
vy. Northrop, 30 Fla. 612 411
v. Pryor, 10 Sm. & M. (Miss.) 620 150
Anderson, In re, 78 Misc. (N. Y.) 713 42
Anderson’s Estate, In re, 14 ae 502 28
Anding v. Davis, 38 Miss. 574 33
Andrews v. Applegate, 223 Ill. 535 209
v. Brumfield, 32 Miss. 107 207
v. Harron, 59 Kans. 771 431
v. Schoppe, 84 Maine 170 214, 217
Angell v. Springfield Home for Aged
Women, 157 Mass. 241 218, 873, 874
Angus v. Noble, 73 Conn. 56
213, 255, 340 a 419
a In re, 80 Misc. (N.Y
10 ” a9
Anthony v. Anthony, 55 Conn. 256 169
aonhony's Estate, In re, 121 Cal. App. =
App v. App, 106 Va. 253 49, 286
Apperson v. Bolton, 29 Ark. ae 48, 49, 506
Applegate v. Smith, 31 Mo. 49
Apple’s Estate, In re, 66 Cut Sa 42
Archambault v. Blanchard, 198 Mo. 384 87
Archer v. Jacobs, 125 Towa 4 251
neat v. Sweet, 25 ‘Bare, CN. Y.) is
Arendt v. Arendt, 80 Ark. 204 25
Bateson State Bank v. Paulsen, 57
Nebr. 286 069
Armant’s Succession, 43 La. Ann. 310 453
Armant’s Will, In re, 43 La. Ann. a tee
Armistead v. Armistead, 32 Ga. 597 205
v. Hartt, 97 Va. 316 358
Armitage v. Widoe, 36 Mich. 124 3
Any v. Meredith, 7 Allen (Mass.)
A ae - 14B.M ae
rmstrong _v. eee on.
éKy.) 311
v. Armstrong, a Minn. 248 84
v. Baker, 9 Ired. om oe 109 495
ve Barber, 239 Ill. 255
v. Kerns, 61 Md. see. 369
v. Lear, 12 Wheat. Pe S.) 169 485
v. Zane, 12 Ohio 2 354

Armstrong’s Estate, re cs 2 Pa. County

Ct. 166 150
Arneson, In re, 128 Wis. 112 441
Arnett v. ‘Arnett, a Il, 247 22, 454
Arnold v. Alden, 173 Ill. 229 176

v. Lincoln, 8 R. I. 384 234
Arnold’s Estate, In re, 240 Pa. 261 214
Arrington v. McLemore, 33 Ark. 759 485
Arrowsmith, In re, 162 App. Div. (N.

Y.) 62 290
Ashby v. McKinlock, 271 Ill. 254 234, 242
Ashton v. Wilkinson, 53_N. J. Eq. 6 394

v. Wilkinson, 53 N. J. Eq. 227 396

_ Ashton’s Estate; In re, 134 Pa. St. 390 169
Ashurst v. Given, 5 Watts & S. (Pa.)

323
Ashworth v. McNamee, 18 Colo. App.

85 498
Aspy v. Lewis, 152 Ind. 493 252
Atkins v. Guice, 21 Ark, 164 195, 396
Atkinson v. Dowling, * S. Car. 414 372

v. Staigg, 13 R. I. 725 , 48, 49
Atmore v. Walker, 46 Fed. 429 321
ee v. Atkinson, L. R. 1 P. ar
Aare re v. Stafford, 58 N. J. Eq. 186 166

 

Attorney-General v. Dutch Reformed
7 a Church, 36 N. Y.
4!

v. Jolly, 2 Strob. Eq. (S. Car.) 379
v. Merrimack Mite Co., 14 Gray
(Mass.) 5

v. Parker, 126 a 216

v. Sands, Hardres 488

v. Shrewsbury, 6 Beav. 220
Atwood v. Weems, 99 U. S. 183
Aubert’s Appeal, 119 Pa. St. 48

Auch’s Succession, 39 La. Ann. 1043
Aue ee 's Estate, In re, 4 Pa. County
t.

Auger v. Tatham, 191 Ill, 296 195,

Augusta v. Walton, 77 Ga. 517 350,

Auld v. Cathro, 20 ’N. Dak. 461

Ault v. Karch (Pa.), 69 Atl. 857

ee v. Bristol, 40 Conn. 120 254,
. Chambers, "33 Okla. 40 392,

= Davis, 128 Ind. 472,
v. Oakes, 117 N. Y. 577
Austins Will, In re, 35 App. Div. we

Avaro v. ‘Avaro, 235 Mo. 424

Aveling v. Northwestern Masonic Aid
Assn., 72 Mich. 7

Avery v. Everett, 110 N. Y. 317
v. Pixley, 4 Mass; 460

Ayers v. Ayers, 43 N. J. Eq. 565 33,
Ayers’ Estate, in re, 84 Nebr. 16

B
Baacke v. Beneks, 50 Nebr, 18 466,

Babineau v. Le Blanc, 14 La. Ann. 729°
Bape vy. Superior Court, 108 Cal.

50
Backus v. Cheney, 80 Maine 17 529,
Backus, In re, 49 App. Div. (N. Y.)

Bacon v. Bacon, 17 Pick. (Mass.) 134
v. Gassett, 13 Allen (Mass.) 334
v. Pomeroy, 104 Mass.
v. Ransom, 139 Mass. 117
v. Woodward, 12 Gray (Mass.) 376
Bacon’s spoeel, in re, 57 Pa. St. 504
Badenhoof v.. Johnson, 11 Nev. 8
Bailey _v. Bailey, 25 Mich. —
v. Dilworth, 10 Sm. & M
404
v. Sanger, 108 ind. 264
Bailey, In re, 13 R. I. 543
Bailey, In re, 15 R. t 60
Bailey’s Estate, In re, 153 Pa. St. 402
Ballers Goods, In re, L. R. 1 P. & D.

Bailie v. McWhorter, a6 eee 183

Bain v. Cline, 24 Ore.

Baird v. Winstead, 123 Y Car. 181

Baker v. Baker, 8 ‘Gray (Mass,) 101
v. Baker, 53 W. Va. 165

. (Miss.)

3 Baker, 57 Wis. 382

. Bancroft, 79 Ga. 672 448,
. Brown, 146 Mass. 369

. Brown, 83 Miss. 793 a5,

Chastang, 18 Ala, 417
Clarke Institute, 110 Mass. 88
Dobyns, 4 Dana (ky) 220
Fooks, 8 Del. Ch.
Johnston, 39 N. J. Eo. 493
Keiser, 75 Md. 332
McAden, 118 N. Car. 740
McGrew, 41 Ohio St. 113
. McLeod, 79 Wis. 534

Red, 4 Dana By) 158
Scott, 62 Ill, 86

Sid848448884958
TABLE OF CASES

[References are to Sections.]

Baker
v. Shy, 9 Heisk. (Tenn.) 85 96
v. Syfritt, 147 Iowa 49 33, 81, 470, 502
Baker’s Appeal, In re, 107 Pa, St.'381 ° 152
Bakert v. Bakert, 86 Mo. App. 83 321
Balcom v. Haynes, 14 AI an (Mass.)
204 195
Baldwin v. Baldwin, 7 N. J. Eq. 211 58
v. Bean, 59 Maine 481 231, 234
v. Morford, 117 Iowa 72 233
v. Parker, 59 Mass, 79 526
v. Sheldon, 48 Mich. 580 184
v. Spriggs, 65 Md. 373 467
v. Tucker, 64 N. J. Eq. 333 232
Baldwin’s Estate, In re, 13"Wash. 666 526
Baldwin’s Will, In re, 146 N. Car. 25 1144
Ball v. Phelan (Miss.), 49 So. 956 1222
v. Tompkins, 41 Fed. 486 350, 522
Ball. In re, 153 Wis. 27 75
Ball’s Estate, In re, 153 Wis. 27 10
Ballantine v. Proudfoot, 62 Wis. 216 534
Ballantyne v. Turner, 59 N. Car. 224
201, 396
Ballard v. Camplin, 161 Ind. 16 306, 309
Ballentine v. Foster, ae Cae ae 195, 255
Balls v. Dampman, 69 M 392
Balot v. Morina, 12 Rob. 4d 395 552 106
Baltimore Sisters of Mercy v. Ben-
zinger, 95 684 87
Baltz v. ‘Muskopf, 34 TI. App. 625 167
Bancroft v. Hartford Security Co., 74
Conn. 218 396
Bane v. Wick, 14 Ohio St. 505 392
Bankhead v. Hubbard, 14 Ark. 298 416
Bank of Ukiah v. Rice, 143 Cal. 265 1133
Banks v. Howard, 117 Ga. 94 33
v. Sherrod, 52 Ala. 267 80
Banks’ Will, in re, 87 Md. 425 242
Baptist Female, University v. Borden,
2 N. Car.
Bazandow s eu In re, 41 Misc. (N.
¥o 3 506
Barber = Barber, 17 Hun (N. Y.) 72 30
v. wi oes &c. R. Co., 69 Fed. oe
v. Binchaegh &c. R. Co., 166 U. S. ped
Barber’s Appeal, In re, 163 Conn. 393
526, 533
Barbo v. Jeru, 155 Mich. 353 194
Barclay v. Dupuy, 6 & ee (Ky.) 92 381
v. Platt, 170 TH. 241
Barker_v. Bell, 46 x 216 476
v. Clark, 72 N. H. 334 823
vi Hinton, 62 W. Va. 639 50
vy. Pearce, 30 Pa. St. 173 193
Barkley v. Donnelly, 112 Mo. 561 78, 100
Barksdale v. Capital City Realty Co., 88
Miss. 623 341
v. Davis, 114 Ala. 623 525, 527, 528
v. Hopkins, 23 Ga. 332 461, 495
Barlow v. Waters, 16 Ky. L. 426 63
Ralpard v. Crossman, 54 Hun (N. Y.) ‘np
3
Barnes v. Barnes, 66 Maine 286 498, 526
v. Chase, 208 Mass. 490 444
v. Dow, 59 Vt. oe : 351, 355, 356
v. Hanks, 55 Vt. 141
v. Marshall, 102 Mich, 248 355
Barnes Cycle Co. v. Haines, 69 N. J.
a Eq. 651 a oa a, $98 255
arnett v. ontgomer: a.
pee 348, 356
Barnett’s Appeal, 104 Pa. St. 342 309
Barnewall v. Murrell, 108 Ala. 366
151, 445, 498, 526

Barney % soomteniien, 2 Greene (fowa) 4

 

XXXiX

Barney

v. Hays, 11 Mont. 571 » 150, 480

v. Saunders, 16 How. (U. sj) 535” 390
Barnum v. Baltimore, a Pie 275 293, 907

v. Barnum, 26 Md. 270

‘vy. Barnum, 42 Md. 308
Barr v. Closterman, 2 Oto C. C. 387 524

v. Graybill, 13 Pa. St. 396

v. Weaver, 132 Ala, 212 233
Barrett v. Gwyn, 28 Ky. L. 101 232
Barrett’s Will, In re, tit ee 570

241 we pee 790
Barricklow v. Stewart, 163 ind, 4 447
Barstow v. SUTaees 40 N, 06
Bartlett v. Nye, 4 Metc. (Mass) 378 187

v. Patton, 33 W. Va. 233

v. Sears, 81 Conn. a 173

v. Slater, 53 Conn. 102 347

v. Sutherland, 24 Miss. 395 71
Bartol’s Estate, Tn re, 182 Pa. St. 407 390
Barton_v. King, 41 Miss. 288 97, 100

v. Robins, 3 Phillim, 455 500

v. Tuttle, 62 N. H. 558 169
Bascom v. Weed, 53 Misc. mt Po) 496 418
Basket v. “Hassell, 107 U.S. 3
Batchelder, In re, 147 Mass. oes 12, 308
Bates v. Bates, 134 Mass. 110 336

v. Dewson, 128 Mass. 334 180, 309

v. Gillett, 132 Ill. 287 174, 256

v. Hacking, 28 R. I. 523 462

v. Officer, 70 Iowa 343 448

v. Porter, 74 Cal. 224 222
Battelle v. Parks, 2 Mich, 531 380
Battersby v. Castor, 181 Pa. St. 555 353
Battle v. Lewis, 148 N. Car. 142 1202

v. Speight, 31 N. Car. ae8 57
Batton v. Watson, 13 Ga. 464
Baugarth v. Miller, 26 Sao St. 541 564
Baumann’s Will, in re, 85 Misc. (N.

Y.) 656 443
Bayer v. Cockerill, 3 Kans. 282 354
Bayley v. Bayley, 5 Cush. ey 245 40
s Be nue D bey a ee ‘On )

aylie’s Exr. v. Spaulding ee

N. E. 62 > "86
Beal v. Crafton, 5 Ga. 396
Bean v. Atkins (Vt.), so Sh 643 283

v. Commonwealth, 186 Mass. 348

351, 419

v. Kenmuir, 86 Mo. 237
Beane v. Yerby, 12 eae bya.) 239 445
Beardsley v. Bridgeport, 52 Conn. ae ne
Beard’s Succession, 14 La. Ann. 121 150
-Beatty v. Cory Universalist Soc., 39 N.

Eq. 452 166

ony, Lalor, 13 N J. Eq. 108 215
Beaufort v. Collier, 6 Puniph, (Tenn.)

487 297
Beaumont v. Keim, 50 Mo. 476
Beck v. McGillis, 9 Barb. wy. YO a ae

>
Becker v. Chester, 115 Wis. 90 270
Becker, In re, 28 Hun (N. Y.) 207 520
Beckley v. Leffingwell, 57 Conn. 163 252

v. Riegert, 212 Pa. 91 800
Bedell v. Clark, 171 Mich. 486 49

v. Fradenburgh, 65 Minn, 361 57
Bedford v. Bedford, 99 Ky. 273 188
Beecher v. Yale, 45° N. Y. S. 622 187
Beekman v. Bonsor, 23 N. Y. 298 201, 359
Beers v. Narramore, 61 Conn, 13

212, 222, 308
Beetson v. Stoops, 91 App. Div. (N.

¥.) 185° | : 55

Behrens v. Behrens, 47 Ohio St. pen se
,
Beidman v. Sparks, 61 N. J. Eq. 226 353
xl

TABLE OF CASES

[References are to Sections.]

Beilstein v. Beilstein, 194 Pa. St. 152 231
Beirne v. Beirne, 33 W.Va. 663 ae 353
Belcher v. Belcher, 38 N. J. Eq. 1
368, a0
Bell v. Driggs, 63 N. H. 592
v. Scammon, 15 H. put 23

v. Watkins, 104 Ga. 345 323
Belle County v. Alexander, 22 Tex. ae

280
Belledin v. Gooley, 157 Ind. 49 ius’ 499
Bellinger v. Thompson, oe oe 320 416
Belt v. Lazenby, 126 Ga. 33
Bendall v. Bendall, 24 AI 05 313
Benesch v. Clark, d. 497 233

Benge v. Hiatt, 82 Ky. 666 33

Benjamin v. Welch, 73 Hun 371 212
Benner’s Estate, In re, 155 i 153 469
Benneson v. Aiken, 102 Ill. 5
Bennett v. Bennett, 66 IIl. a 28 oor
v. Chapin, a Mich. 526 296, 370
v. Gaddis, 79 Ind. 347 469
v. Garlock, 10 pie. ee Y.) 328 250
v. Garlock, 79 N. 351
v. Harper, 36 W. Va. 3346 ‘ 342
vy. Hibbert, 88 Iowa 154 63
v. Packer, 70 Conn. 357 288
Bennett’s Estate, In re, 134 Cal. 320 311

Bennett’s Estate, In re, 148 Pa. St. 139 326
Benson’s Estate, In re, 169 Pa. St. 602 167
Bent v. Thompson, 5 N. Mex. 408

494, 523

v. Thompson, 138 U. S, 114 520
Benton v. Benton, 78 Kans. 373 288

yv. Benton, 63 N. H. 289 219
Benton’s Estate, In a 131 Cal. 472
‘ 18, 531
Bent’s Appeal, In re, 35 Conn. 523
494, 500
Berberet v. Berberet, se ae 399 446, 447
Berdan, In re, 65 N. J. Eq. 681 25
Bee a Elliott, 1 a esas: (Ss.

Car.) 1 286
fone: Swit, In re, 206 N. Y. a: =
Bergengren v. Aldrich, 119 Mee 259 378
Bergman v. Arnhold, 242 ii, 218 258
Berg’s Estate, In re, 73 Pa. St. 647 516
Bermingham v. Wilcox, 120 Cal. 467 415
Berry v. Dunham, 202 Mass. 133 3

49
v. Hamilton, 10 B. Mon. (Ky.) 129 448
v. Hanks, 28 Ill. App. 51 180

v. Heiser, 271 Ill. 264 230
Berst v. Moxom, 157 Mo. App. 342

498, 530

vy. Moxom, 163 Mo. App. 123 84, 443

Best v. Berry, 189 Mass. 510 306

v. Best, 11 Ky. L. 215 87

v. Gralapp, 69 Nebr. 811 33
Berneey 5 Hospital Co. v. Philippi, ae

ans.
Bethea ‘Bethea, ae gee 265 283

v. McColl, 5 Ala. ey
Bethel v. Mayor, 24 Ky. L. 398 191
Betts v. Harper, 39 Ohio ot, yor" 502, 1183
Beurhaus v. Cole, 94 Wis. 368

v. Watertown, 94 Wis. 67 98, 336
Bevan v. Cooper, 72 N. Y¥. 317 320; 324
Bevis v. Heflin, 63 Ind. 129 398
Beyer v. LeFevre, 17 App. Cas. (D.

C.) 238 ¥ 521
Bible Society v. Pendleton, 7 W. Va.

79 100
Biddle v. ee 36 Md. 630 454
Biddle’s Appeal, In re, 80 Pa. St. 258 340
Biddle’s Ap eal, In re, 99 Pa. St. 525 251
Biedler v: Biedler, 87 Va. 300 433
Bigelow v. Cady, 171 Ill. 229 357

v. Gillott, 123 Mass, 102 464

 

Big s v. McCarty, 86 Ind. 352 245

istey v. Watson, 98 Tenn. 353 67
zi ger v. Nunan, 186 Fed. 665 237
Bill v. Payne, 62 Conn. 140 191, 306
Bills v. Bills, 80 Iowa 269 237, 339
Bingham, In-re, 127 N.Y. 296 392

Bingham’s Appeal, 64 Pa. St. 345 46

Binns v. LaForge, 191 Ill. 598 oa 421
Binsse v. Paige, 1 Abb. Dec. (N. Y.)

138 397
Bioren y. Nesler, 77 N. J. Eq. 560 447
Birchard v. Scott, 39 Conn. 63 188
Bird v. Gilliam, 121 N. Car. 326 241

v. Merklee, 144 N. Y. 544 187

v. Stout, 40 W. Va. 43 326
Birmingham v. Lesan, 76 Maine 482

368, $19
Biscoe v. State, 23 Ark, 592 422

v. Thweatt, 74 Ark. 545 842

Bishop v. Bishop, 56 bee 208 410, 1104
v. Bishop, 81 Conn. 222, 396
v. Howarth, 59 cose E88 322, 324, 223
v. O’Connor, 69 Til, 431

v. Rider, 31 Ohio C. C. 332 130
Bissell v. Heyward, 96 U. S. 580 469
Binees Estate, In re, 129 Pa, St.
Black 4, Cartel, 10 B. Mon. (Ky.)

v. Herring, 79 Md. 146 159, 290

v. Ray, 18 N. Car. 334 233

v. Richards, i Ind. 184 502

v. Whitall, 9 N. J. Ee. 572 433

v. Woods, 213 Pa. 583 284
Black’s Estate, In re, “223 Pa. 66:
Blackbourn v. Tucker, 72 tee, 735 50, 78
Blackburn v. Stables, 2 Ves. & B. 367 193
Blackler v. Boott, 114 Mass. 24 184
Blackman v. Edsall, 17 Bee App. 429 530

v. Gordon, 2 Rich. 5. Car.) 43 50
Blackmer v. Blackmer, ™ GE 23 an 217
Blackmer’s Estate, In re, 66 Vt. 62
Blacksher Co. v. Northrup, 176 a 190 41
Blain v. Dean, 160 Iowa 708 286
Blair v. Blair, 82 Kans. 464 323
Blake v. Rourke,,74 Iowa 519 526
Blake’s Estate, In re, 136 Cal. 306 444
Blake’s Estate, In re, 157 Cal. 448 251, 353
Blake’s Estate, In re, 134 Pa. St. as 322
Blanchard v. Blanchard, 4 Hun (N. Y.

287 367

v. Blanchard, 32 Vt. 62 460
Bland v. Dawes, 17 Ch. Div. 794 101
Blankenbaker v. Snyder, + Ae L. 437 176

Blass v. Helms, 93 Tenn. 192
Blatchford v. Newberry, 99 Til, 11 135,
Bleeker v. Lynch, 1 Bradf. Surr. (N.

Y.) 458 uy
Blewer v. Brightman, 4 McCord (S.
Car.) 60 207
Block Ye Magick (Teta, Ch. App.), 52

. W. 689
ve vals Mut. Ins. Assn., 52 Ark.

0 61
Blodgett v. Moore, 141 Mass. 75 467
v. Stowell, 189 Mass. 142 169
Blood v. Fairbanks, 48 cn eee 215
Bloom v. Strauss, 73 Ark. 340
Bloomer v. Waldron, 3 ‘hh CN. Y.)
361 379
Blough v. Parry, 144 Ind. 463 526, 529
Blount v. Moore, 54 a 360 380
v. Walker, 28 S. ae ee 46, 106
Blower, In re, L. R. 178
Board Jee of Fairheld = + aad, 26 Ohio
St. 193

Reelnon v. Hitchcock, 136 App. Div.
(N. ¥.) 253 i ne
TABLE OF CASES

xli

[References are to Sections.]

Boatman v. Boatman, 198 Ill. 414 258
Botb’s Succession, 42 La. Ann. 40 462
Bodfish v. Bodfish, 105 Maine 166 368
Bodine v. Brown, 154 N. Y. 778 194
Bodley v. McKinney, 9 Sm. & M. (Miss.)
Bower ‘ ae, I 43 A Div. (N. ee
0. te i n re, pp. Div.
v5 ? 340

Hoes 7 oe s, 62 Nebr. 274 530

Bohannon v. ae 25 Ky. L. 515 532
Bohanon v. Walcot, 1 How. (Misé.)
336 475
Bohler v. Hicks, 120 Ga. 800 530
Boland v. Tiernay, 118 Iowa 59 380
Bolick v. Bolick, 23 N. Car. 244 212
Bolles v. Harris, 34 Ohio St. 38 503
Bolling v. Bolling, 88 Va. 524 48 -
v. Miller, 133 Ind. 602 394
Bolman v. Overall, 80 Ala, 451 470
Bolton v. Bolton, 73 Maine 299 178
Bond v. Cedar Rapids Home for Aged
Women, 94 Iowa 458 185, 187
v. Martin, 25 Ky. L. 719 214
Boning’s Estate, In re, 214 Pa, 19 413
Bonnemort v. Gill, 167 Mass. 338 493, 523
Booe v. Vinson, 104 Ark. 439 252, 358

Boofter v. Rogers, 9 Gill. cid) 44 76
Boone v. Ritchie, 21 Ky. L. 8 5
Booth v. Baptist Chuzch, 126 N Yi ie

1152
Boothe v. Cheek, 253 Mo. 119 59
Boraston’s Case, 3 Coke et 254
Borden v. Borden, 2 R. I. 94 469
Borgner, v. Brown, 133 Tad 391 306

Born v. Horstmann, 80 Cal. 452

289, 293, 862
Bosley v. Wyatt, 14 How. (U. S.y 390 = 32
Boston v. Robbins, 126 Mass. 384 418
Boston Ease Co, v. Condit, 19 N.

J. Eq.
Boston” Safe Deposit &c. Co. v. Sn

196 Mass. 35 1201
ve Comin’ 152 Mass. 95 135
v. Mixter, 146 Mass. 100 207
v. Nevin, 212 Mass. 232 257

v. Stich, 61 Kans. 474 234

Bothamley v. Sherson, L. R. 20 Eq. aa 139
Bouk’s Estate, In re, 80 Misc. (N. Y.)

196 39, 140
Boulevard, In re, 230 Pa. 491 99
Bourke v. ’ Boone, 94 Md. 472 57, 202

vy. Wilson, 38 La; Ann. 320 23
Bourquin, ve Bourquin, 120 Ga, 115 415
Bousauet's Succession, 10 Rob. (La.) *O8

143
Bowditch v. Andrew, 8 Allen (Mass.) 588

339
Bowdoin College v. Merritt, 75 Fed. 480 84
Bowdre v. Jones, 34 Ga. 399 396
Bowen _v. Dean, 110 Mass. a 339

vy. Howenstein, 39 a a Ge B85 519
v. Johnson, 5 RT 491
v. Lansing, 129 tic 7047 60
v. Stewart, 128 Ind. 515 2
Bower v. Bower, 142 Ind. 194 533
Bowerman v. Sissel, 191 Ill. 651 233
Bowers v. Bowers, 63 Ind. 430 467
v. Pomeroy, 21 Ohio St. 184 211
Bowes v. East London Waterworks Co.,
Jac. 324 378
Bowes, In re, L. R. (1896) 1 Ch. 507 9359
Bowker v. Bowker, 148 Mass. 198 176
Bowles v. Smith, 39 Conn. a 191
Bowlin v. Furman, 34 Mo. 214
Bowman Ee ‘ee 47. B. isons (Ky.) -
oe Mie, 8 B. Mon. (Ky.) 67 416
Boyd v. Boyd, 2 Fed. 138 32, 463

 

Boyd
v. Hawkins, 37 'N. Car. 304 415
v. Latham, 44 N. Car. 365 463
v. McConnell, 209 Ill. 396 448
v. Oglesby, 23 Grat. peed 674 399
v. Perkins, 130 Ky. 181
me Sachs, 78 Md. or 288
Talbert, 12 Ohio 212 381
‘Boyer v. Allen, 76 Mo. 498 288
v. Robinson, a aoe 117 1099
Boyett v. Kerr, 92

4
Boylan v. Macher, 1 if Nd eh gut 310 63
v. Meeker, 28 N. J. L. 274 462

v. Boyle, 136 App. Div. (N. Y.)
67 185
Boyle v. Boyle, 158 Ill. 228 464

v. Boyle, 152 Pa. St. 108 372
Bradford v. Andrews, 20 Ohio St, He is
20

v. Blossom, 207 Mo, 177 485, 516
Vv. Bradford, 19 Ohio St. 546 290
v. Brinley, 145 Mass. 81 140, 1212
v. Clayton, 18 Ky. L. 1043 415
v. Haynes, 20 Maine 105 138, 139

v. Monks, 132 Mass. 405 371

Bradford Academy v. Grover, 55 Vt.
Bradish S Site, 3 Johns. Ch. (N. vy)?

81
v. MeCiellan, 100 Pa. St. 607 501, 1161
Bradlee v. Andrews, 137 Mass.

374, 460
Bradley v. Andress, 27 fe 596 503
v. Bradley, 24 Mo. 311 103
v. Carnes, 94 Tenn. 27 237
v. eee 1 fhe eee Eq. (S. Car.) 1 49
v. Rees, 1 203
v. ems 62 S. Car. 494 284
v. Saddler, 54 Ga. 681 6
v. Young, 2” MacArth. (D. C.) 229 358
Bradley’s Estate, In re, 238 Pa. 440 218
Bradsby v. Wallace, 202 Ill. 239 831
Bradshaw v. Roberts (Tex. Civ. App.),
52 S. W. 574 492
Bradt v. Hodgdon, 94 Maine 559
365, 366, 380
Bragg v. Litchfield, 212 Mass. 148 “237
Brainerd v. Cowdrey, 16 Conn. 1 138, 139
Brgeabesty Estate, In re, 156 Pa. St é
Bramel v. Bramel, 101 Ky. 64
528, 529, 534
Bramell v. Cole, 136 Mo. Seis 237, 368
Bramhall v. Ferris, 14 N. 296°
Brandeis v. Atkins, 204 ae “71 2
Brandon v. Robinson, 18 Ves. He 429 292
Brannock v. Stocker, 76 Ind. 813

Brant v. Brant, 40 Mo. 266 393

Brantley v. Porter, 111 Ga. 886 351,

Brantly v. Kee, 58 N. Car. 332

Brattle vee Church v. Grant, 69
Mass. 142 258, 273, 283

Brawley v. Collins, 88 N. Car. 605 208
Bray v. Miles, 23 Ind. App. 432 176
Hee ees v. Whittaker, 8 B Mon. (Ky.) 3
8

Pip elie v. Bardin, 36 S. Car. 197
51, 370
Brengle v. Tucker, 114 Md. 597 25
Brennan v. Brennan, 185 Mass. 560 890
v. Moran, 6 Ir. Ch 126 142
Bresler, In re, 155 Mich. 567 152
Brett v. Brett, 3 Addams 210 495
v. Donaghe, 101 Va. 786 176
Brevard v. Jones, 50 Ala. wo re

Brewer v. Hutton, 45 W.
Brewster v. Demarest, 48 N. ae 2. 559 390
xlii

TABLE OF CASES

4

[References are to Sections.]

Brewster
v. McCall, 15 Conn.

274
ee 57, 167, 185,
v. Mack, 69 N. H.
Brewster Maritime cas &c. Mis-
sion Board, In re, 2 N. Bruns. Eq.

oe v. Horner (Tenn.), 38 S. W.
44

Bridger, In re, 1 Ch. 297
Bridgewater v. iene (Tex. Civ. App.),

186
284

33
Bridgnorth v. Collins, 15 Sim. 538 179
Briggs v. Briggs, 69 Iowa 206
v. Carroll, 117 N. Y. 288 326
v. Walker, 171 U. 8. 466 171
Brigham v. Kenyon, 76 Fed, 30 79
v. Winchester, 1 aete, bseeo 390 «658
Bright v. Adams, 51 Ga. 5
Bright’s Appeal, 100 Pa. ‘Si ” 602 395
Brill v. Wright, 112 N. 129 320, 326
Bee v. Farias, 32. ‘App. Div. (N. id
Bringhurst v. Orth, 7 Del. Ch. 178 32, 463
Brinker v. Brinker, 7 Pa. St. 53 33
Brinkman v. Rueggesick, 71 Mo. 553 83
Brinton v. Van Cott, 8 Utah 480 33
Brisbin v. Huntington, 128 Iowa 166 173
Bristol v. Atwater, 50 Conn. 402 242
v. Austin, 40 Conn. 438 339
v. Bristol, 53 Conn, 242 359
v. Ontario Orphan Asylum, 60 Conn.
472 : 166
Britt v. Smith, 86 N. Car. 305 812
Broach v. Sing, 57 Miss. 115 454, 503
Broadbridge v. "Sackett, 138 Mich. 293 680
Brock v. Frank, 51 ‘Ala. 85 486, 507, 508
v. Sawyer, 39 N. H. 547 101, 341
Broe v. Boyle, 108 Pa. St. 76 476
Brokaw v. Hudson, 27 N. J. Eq. 135 311
Broliar v. Marquis,.80 Iowa 49 244
Brombacher v. Berking, 56 N. J. Eq.
213, 222, 241
Bromley v. Gardner, 79 ae 246 342
v. Mitchell, 155 ‘Mass. 5 4
Brook v. Chappell, 34 Wis Ef 5 342
Brooke v. Lewis, 6 Madd. & Geld. 358 394
Brookhouse v. Pray, 92 Minn. 448 709
Brooks v. Belfast, 90 Maine 318 271, 307
v. Raynolds, 59 Fed. 923 296
v. Whitney, 11 Metc. (™" .ss.) 413 60
Brooks’ Appeal, 68 Cony <n 534
Brooks’ Will, In re, 12 N. Car. 136 236
Broome v. Alston, 8 Fla. 307 415
Brosnakan v. Turner, 16 in, 433 41
Brotzman’s Estate, In re, 133 Pa. St.
478 396
Broughton v. West, 8 Ga. 248 344
Broutin v. Vassant, 5 Mart. (O. S.)
(La.) 169 24
Brown_;. Anderson, 13 Ga. 95
v. Beaver, 3 Jones a “cae) 516 453
v. Bowen, 30 N. 519
v. Brown, 3 Gee ‘ane 441
v. Brown, 12 Md. 87 355
v. Brown, 42 Minn. 270 287
v. Brown, 86 Tenn. 277 269
v. Bryant, 17 Tex. Civ. aye 454 244
v. Chesterman, 56 Hun (N. Y.) 641 381
v. Clark, 77 N.Y. 369 475, 476, 479
v. Crittenden (Ky.), ie a Je 421 379
v. Doherty, 185 N. 380
v. Frantum, 6 La. a 60
v. French, 125 Mass. ae 390
v. Harmon, 73 Ind. 169
v. Harris, 25 Barb. cn Y.) 134 344
v. Harris, 9 Baxt. (Tenn.) 386 503
v. Higgs, 8 Ves. Jr. 570 372

 

Brown
v. Just, 118 Mich. re
v. Knapp, 79 N. Y.
v. Lippincott, 49 N. en Eq. 44
v. McBride, 129 Ga.
v. Miner, 128 Ill. tag ‘
v. Mitchell, 75 Tex, 9 525, 529,
v. Mitchell, 88 Tex. 350 83,
v. Phillips, 16 R. I. 612
v. Renshaw, 57 Md. 67
v. Riggin, 94 Ill. 560
v. Weaver, 28 Ga. 377
v. Webster, 87 Nebr. 788
v. Webster, 90 Nebr. 591
v. Williams, 5 R. I. 309
v. Wright, 168 Mass. 506
Bava. In re, 1 B. Mon. hy) 56
Brown, In re, 154 N. Y. 190,
Brown's Estate, In re, 143 “EL 450
Brown’s Estate, In re, 139 Iowa 219
172, 466,
Browne's & Estate,.In re, 1 Con. ‘Surr.
Browning v. Resa: 2 Phil. Ecc. 69
Brownrigg v. Pike, 7 P. Div. 61
Bruce v. Bissell, 119 Ind. 525.
Bruch’s Estate, In re, 185 Pa. St. ae

Bruck v. Tucker, 32 Cal. 425 ;
Bruere v. Cook, 63 N. J. Eq. 624
a v. Benton, 9 Ohio Dec. (Re-

print) 786
2 Pinn. (Wis.)

Brunson v.
Brush v. Young, 28 N. J. zB 237
Bryan _v. Duncan, 11 Ga.

v. Dunn, 120 N. Car. 8

v. Milby, 6 Del. Ch. 208

v. Walton, 20 Ga. 480
Bryan’s Appeal, In re, 77 Conn. 240
Bryant _v. McCune, 49 a 546

v. Pierce, 95 Wis. 33

v. Thompson, 59 iter (N. Y.) 545
Boe s Estate, In re, 7 Pa. Super. Ct.

478,

Burnett,

Buchanan v. Anderson, 70 S. Car. 454
v. Denig, 84 Fed. 863
v. Lloyd, 64 Md. 306

v. Lloyd, 88 Md. 642 321,
Mngt ep arte Appeal, In re, 57 com’
44

Buckley v. Gerard, 123. Mass. 8
Buckman, In re, 80 N. J. Eq. 556
Buckner v. Buckner, 255 Mo. 371
Buck’s Estate, In re, 185 Pa. St. 57

410, 1105
324

is enter v. Klein, 5 Ohio Dec, (Re- ©

print) 5
Budd v. Brooke, 3 Gill. say 198
v. Garrison, 45 Md.
Budd’s Estate, In re, ise eal, 286
Buerhaus v. De Saussure, 41 S,

457
Buffington v. Thomas, 84 Miss. 157
Bull: Kentucky Nat. Bank, 90 Ky.

4 ’
Bullard v. Shirley, 153 Mass. 559
Bulmer’s Estate, In re, 59 Cal. 131
Bundrick v. Haygood, 106 N. Car. 468
Bundy v. Bundy, 47 Barb. (N. Y.) >,

v. Bundy, 38 N. Y. 410
a a Winthrope, 1 seuss Ch, Ow
Bunnell v. Evans, 26 Ohio St. 409

v. Hixon, 205 Mass. 468
Bunting v. Speek, 41 Kans. 424
Burbank v. Sweeney. 161 Mass. 490

v. Whitney, 24 Pick. (Mass:) 146
Burbeck v. Little, 50 Vt.

78,
ar.
TABLE OF CASES xiii

[References are to Sections.}

 

Burdeno v. Amperse, 14 Mich. 91 102 | Calvert v. Boullemet, 46 La, Ann, 1132
Burdis v. Burdis, 96 Va. 81 280, 281 411, 419
Burford v, Aldridge, Ae pio 419 237, 241 eee v. Free, 66 Kans. 466 3
Burge v. Hamilton, 72 Ga. 568 Springer, 28 ae: App. 443 253
‘tsé, 452 a 480 anni v. Camp, 18 H ae a .Y.) 217 433
Burges v. Hill, 1 Bradf. Sur. (N. Y. v. Cleary, 76 Va. 296
360 > 500 v. Shaw, 52 Ill. ow 241 32, 478
Burgin vy. Chenault, 9 B. Mon. (Ky.) v. Stark, 81 Pa. St. 235 50
285 411 v. Stark, 10 Phila. a 528 50
Burke v. Burke, 259 Ill. 262 237, 344 v. Vaughan, 119 Ga. 56, 143
v. Chamberlain, 22 ae 298 211 | Campbell v. Beaumont, ‘oh NX Y. 464 237
v. Stiles, 65 N. H. 395 v. Bradford, 166 Ind. 451 849
Burkett v. iy riteunee, 3 S. Car. 428 v. Campbell, 130 Ill. 466 523
50, 76 v. Campbell, 21 Mich. 438 22, 454
Burkhart v. Gladish, 123 Ind. 337 529 v. Clough, 71 N. H. 181 294, 419
Burleigh v. Clough, 52 N. H. 267 v. Fichter, 168 Ind. 645 518
233, 237, 242 v. Foster, 35 N. Y. 361 292
Burleyson v. Whitley, 97 N. Car. 295” 307 v. Hinton, 150 Ky. 546, 56
Burnes v. Burnes, 137 Fed. 781 339 v. Miller, 38 Ga. 304 403
Burnet v. Burnet, 30 N. J. Eq. 595 688 v. Porter, 162 U. S. 478 485, 522
Burney v. Allen, 125 N. Car. 314 449 v. Rawdon, 18 N. Y. 412 192
v. Torrey, 100 Ala. 157 533 % Sheldon, 13 Pick. (Mass.) 8 506
Burnham v. Burnham, 79 Wis. a 2) 282 Taul, 3 Yerg. (Tenn.) 548 33
v. Comfort, 37 Hun (N. che 434 Cunpbell, In. te, 27 Utah 361 139
v. Comfort, 108 N. Y. 535 460 | Canada’s Appeal, 47 Conn. oo 445
Burns v. Burns, 132 Mich. 441 799 | Canfield v. anfield, 118 Fed. 250
v. Smith, 21 Mont. 257 33 v. Canfield, 62 N. J. Ea. ae 313
a Travis, 117 Ind. 44 462, 494, 508 Rantenhury v. Wyburn, @. C) A. Cc.
Van Loan, 29 La. Ann. 560. 492 89 78
Burns’ yah re, : arn N. Car. 336 go. 4ae Gapetart Fe See te N. Car, 119 218
urr mit Cape May &c. Nav. Co., In re, 51
pe Pmen wanae? Be len, 8
urroug s v. Gaither,
Burt v. Gill, 89 Md. 145 346 card Pete WOR Re ek aa. oe
Burton v. Black, 30 Ga. 638 204 | Cardross, In’re, 7 Ch. Div. aan * 369
v. Provost, 75 Vt. 199 255 | Cardwell v. Rogers, 76 Tex. 57
ae Will, In re, 87 Misc. (N. Y.) aes Carew, ea He Cees} 2c. 311-292
Bush v. Lisle, 89 Ky. 393 87 | Carly, Gabel 120 Moo 383 $36
Bush’s Estate, In re, 89 Nebr. 334 414 vy. Northcutt, 48 Colo. 47 33
Bussell v. Wright, 133 Wis. 445 358 | Carle v. Miles 39 Kans. 540 | 28
Butcher v. Butcher, 21 Colo. App. 416 Carlton v. Carlton, 40 N. H 448, 499
47, 498 | Carmen v. Kight, 85 Kane > "65
Butcher, 1 Ves, & Bea, 79 373 | Carmichael v. Carmichael, 2 Mich. 76 33
Butler v. Butler, 97 Ky. 136 195 | Garnagy v. Woodcock, 2 Munf. (Va.)
v. Gazzam, 81 Ala. 491 379 | 354° 217
v. Greenwood, 22 aoe 303 32
v. Huestis, 68 Til. 376 | Carney_v. Byron, 19 R. I. 283 358
Butler, In re, 66 Mise” ‘GW. Y.) 406 = 178 v. Carney, 95 Mo. 353 33
Butler & Baker’s Case, 3 Coke 25 115 v. Kain, 40 W. Va. 758 ar 64, 358
Butterfield v. Hamant, 105 Mass. 33° 157 Carpenter v. Bailey, 127 Cal. 316
v. Sawyer, 187 Ill. 598 250 v. Benoon, 22 Ohio 379” 489, a0
v. Dodge, Ty
Button v. American Tract Soc., 23 Vt. 1e7 ae Hay irs, 72 W. Va, 780 449
v. Hazelrigg, ye
Busby v. Roberts, 53.N. J. Ea “ig, 192] ve Perkins, $3 Conn, 11,9376, 252
Byers v. Hoppe, 61 Md. 206 1187 Ve MENZSMON LOBE, CEC WGiy :
"y, McAuley, 149 U.S. 608 522 486 285, 832
Byrd v. Surles, 77 N. Car. 435 467 | Carper v. Crowl, 149 Ill. 465 395
Byrne v. Hume, 86 eet a 140 | Carr v. Bredenberg, sq ee Car. 471 253
v. McGrath, 130 C 236 | Carr, In re, 16 R. I. 380
Byrnes v. Stilwell, 103" we F453 252 parma v. Es Cattgan, 123 ea. 657 a
arrie v. Cumming,
Cc Carrigan v. Drake, 36 S. at ana 244
Carrithers v. Neal, 12 Ky. 349
Cabigting’s Will, In re, 14 Philippine Carroll v. Carroll, 16 How. ay. °8) 275 57
463 77 v. Carroll, 20 "Tex. 176, 193
Cadell v. pales, 1 Cl. & F. 372 269 | Carson _v. Carson, 36 ‘N. om 329 355
Cady v. Cady, 67 Miss. 425 306 v. Carson, 62 N. Car. 57 374
Caeman v. Van Harke, 33 Kans. 333 Be os Fuhs, 131 Pa. St. 256 244
462, 505 | Carstensen’s Estate, In re, 196 Pa. St.
Cain v. Cain, 127 Ala. 440 136 325 254
Calder v. Curry, 17 R. I. 610 327, 392 | Carswell v. Lovett, 80 Ga. 358
Caldwell v. Renfrew, 33 Vt. 213 3 | Carter v. Bloodgood, 3 Sade, (N. Y.)
Calkins v. Calkins, 216 Ill, 458 450 |. 293 157
Call v. Byram, 39 Ind. ae 533 vy. Carter, 39 Ala. 579 235, 281
v. Shewmaker, 24 Ky. L. 1167 296 v. Christie, 57 Kans. 496 350
Callerand v, Piot, 241 Ill. 120 5 v. Gray, 58 N. J. Eq, 411 326
xliv

TABLE OF CASES

[References are to Sections.]

Carter
v. Greenwood, 5 Jones Eq. (N.
Car. 2
v. Long, 181 Mo. 701 343
v. Rolland, 11 Humph. penta) 333 421
v. Van Bokkelen, 73 Md. 175 380
v. Worrell, 96 N. Car. 358 324
Carvill v. Carvill, 73 Maine 136 534
Case v. Case, 51 Ind. eo 139
v. Hasse, 83 N. J. Eq. 170 201
Casper v. Walker, 33 N. i Eq. 35 293
Cassels v. Finn, 122 Ga. 33 342
Castens v. Murray,. 122 Ga. 396 460, 462

Castine Trinitarium Cong. Church, In
re, 91 Maine 416 448

Castro v. Castro, 6 Cal. 158 20

Cate v. Cranor, 30 Ind. 292

Catholic Knights of America v. Kuhn,
91 Tenn, 214 61

Garhelts University v. O’Brien, 181 Mo.

25
Cauvien’s eaieaest 46 Tey Ann. 1412 23
Cavagnaro v. Don, 63 Cal. 227 415
Cavarly’s Estate, In re, can a 406 268
Caw v. Robertson, 5 N. Y. 107
Cawley’s Estate, In re, lie Pa St. 628 ao
Cawthorn v. Haynes, 24 Mo. 236 498
Central Trust Co. v. Skillin, 154 App.
Div. (N. Y.) 227 173
Chace v. Chace, 6 R. I. 407 103
v. Gregg, 88 Tex. 552 212
v. Lamphere, 148 N. Y. 206 202, 212
Chadwick v. Chadwick, 37 a a Eq. 71 307
Chafee v. Maker, 17 RI 184
he apenas, v. Mica er N. Y.
42, 44, 45
Chambers y. Davis, 15 B. Mon. (By.) ”
v. Higgins, 20 Ky. L. 1425 78, 99, 166
v. McDaniel, 28 N. Car. 226 152
Champion, Ex parte, 45 A ‘Car. 246 60
Chandler v. Jost, 96 Ala, 596 526
v. Pomeroy, 96 Fed. 156 358
Chaney v. Home Society, 28 Ill. App. ag
Chapin v. caake 73 Conn. 72 357
v. School Dist. No. 2, 8 N. H. 445 283
Chaplin v. Doty, 60 Vt. 237
v. Leapley, 35 Ind. oe 511 65
Chapman v, Chick, 81 Maine 109
207, 214, 308
v. Price, 83 Va. 392 101
Chapman, Tn re, 32 Beav. 382 312
Chappell v. Trent, 90 Va. 849 443, 526
Charch v. Charch, 57 Ohio St. 561 61, 287
Charlton v. Miller, 27 Ohio St. 298 ae
2
Chase v. Benedict, 72 Conn. 322 353

v. Bradley, 26 *Maine 531 399
v. Cartwright, 53 Ark. 358 1209
v. Davis, 65 Maine 102 325
v. Dickey, 212 Mass. 555 78
v. Howie, 64 Kans, 320 241
v. Isherwood, 5 Ohio S. & C. Pl.
Dec. 1 340
v. Kittredge, 11 Alles aManed 49 442
v. Lincoln, 3 Mass. 498
v. Toe mats 11 Gilt 2 J. (Mid)
185 192, 193
v. Mathews, 12 La. 357 400
ve Peckham, 17 R. I. 385 192
v. Warner, 106 Mich, 695 324

v. Winans, 59 Md. 475 521
Ghaey v. Gowdry, 43 N. J a 95
Chauncey v. Salisbury, Mi ass. 516
Cheairs v. Smith, 37 Miss. 646 281

 

Chenault v. Scott, 28 Ky. L. 1974 235
Cheney v. ‘Selman, 71 384 167
v. Stafford, 76 Vt. 16” 362
v. Teese, 108 Ill. 473 236
Cherry, In re, (N. Car.), 79 S. E. 288 449
Chesebro v. Palmer, 68 Conn. 207 238
Chester County Hospital v. Hayden, 83
Md. 104
Chevallier’s Estate, In re, 159 Cal. oat 59
a
Chew v. Hyman, 7 Fed. 335
Chew’s Appeal, 37 Pa. Se 23 254
Chicago &c. R. Co. ve Wasserman, 22

Fed. 872 104
Chicago Terminal T. R. Co. v. Winslow,

216 Ill. 166 343, 351
Chidsey v. Brookes, 130 Ga. 218 486
Chilcott v. Hart, 23 Colo. 40 242, 485
eines Appeal, In re, 134 Pa. St. aoa
Chisholm. v. Ben, 7 B. Mon. (sy) 408 442

Chouquette v. Barada, 23 Mo, 331 103
Chrisman v. Chrisman, 16 Ore. 127
Christ Church v. Trustees of Donations
&c., 67 Conn. 554 271
Chngian Union v. Yount, 101 U. S. .

Christman v. Roesch, 198 N. Y. 538
Christopherson v. Naylor, 1 Merv. 319
ey Hae v. Grainger, 1 Macn,

Christy v. Badger, 72 Iowa 581 200,
Chubbock v. Murray, 30 Nov. Sc. 23 222

Church v. Ruland, 64 Pa. St. 432 342
Churchill v. Churchill, a ae L. 2365 212
v. Jackson, 132 Ga. 412

Chwatal v. Schreiner, ae oN Y. 683 51
Citizens Bank & ae Co, v. Brandt

(Tenn.), 50 S. 778 355
Claflin v. Claflin; is Mass. 19 346, 394
Claflin’s Will, In re, 73 Vt. 129 445
Claiborne v. Holland, 88 Va. 1046 398
Claiborne’s Estate, In re, 158 Cal. 646 136
Clark v. Anderson, 10 Bush. gee 99 412

v. Atkins, 90 N. Car. aere 218

v. Cammann, 160_N. Y. 315 306

v. Clark, 178 U. S. 186" 41

v. Clark’s Estate, 54 Vt. 489 107

v. Denton, 36 N. J. Eq. 419 370

v. Ellis, 9 Ore. 128 516

v. Fleischmann, 81 Nebr. 445 392

v. Hornthal, 47 Miss. 434 368, 370

v. Hoskins, 6 Conn. 106 107

v. Kittenplan, 63 Misc. o a 122 173

v. Lyons, 38 Misc. (N. Y.) 5 519

v. Mack, 161 Mich. 545 170

v. Marlow, 149 Ind. 41 322, 323

v. Middlesworth, 82 Ind. 240 368

v. Miller, 65 Kans, 726 107, 446

v. Morehous, 74 N. J. Eq. 658 257

v. Niles, 42 "Miss. 460 416

v. Powell, 62 Vt. 442 419

v. Turner, 50 Nebr. 290 440

v. Vorce, 19 Wend. She ¥.) 232 448

v. Wilson, 53 Miss. 366

Clarke v. McCreary, 20 Miss. 347 250

v. Ransom, 50 Cal. 595 462

v. Terry, 34 Conn. 176 236, 243

Clark, In re, (N. J.), 52 Atl. 222 451
Clark’s Appeal, 70 Conn. 3

47, 49, 1218

Claussenius v. Claussenius, 198 ml’ 548 516
Clawson v. Brewer, 67 N. Eq. 201 33
Clay v. Chenault, 108 Ky. 7 234

v. Hart, 7 Dana (Ky.) 1 371
v. Layton, 134 Mich, 317 440
v. Smallwood, 100 Ky, 212 375
TABLE OF CASES

[References are to Sections.]

Clay
v. Wood, 153 N. Y. 134 339
Clayson’s Estate, In re, 26 Wash. a a5
>
Clayson’s Will, In re, 24 ote 542 50
Clayton v. Akin, 38 Ga. 320 434
v. Hallett, 30 Colo. 231 » 206
Closers Twp. v. Blough, 173 Ine nai
Cleaver v. Cleaver, 39 Wis. 96 181
Clement v. Hyde, 50 Vt. 716 188
Cleverly v. Cleverly, 124 Mass. 314 212
Clifford v. Stewart, 95 Maine 38 419
Cliff's Trusts, In re, 2 Ch. Div. 229 155
Clifton v. Haig, 4 Desaus. (S. Car.) 330 96
v. Murray, 7 Ga. 564 441
Clinefelter v. Ayres, 16 Ill. 329 371
Clingan v. Mitcheltree, 31 Eee St. 25 464
Clisby v. Clisby, 146 Ala. 353
Clore v. Smith, 45 Ind. Nae 340 ae 284
ee v. Farmers’ Loan &c. Co. 195 N-
92 338, jal a 419
Cleigh v. Clough, a ao App 433
= 4497, 516, $32,
Clusky v. Burns, 120 “Me. 567 340
Coane v. Harned, 51 N. J. Eq. 554 325
Coates v. Burton, 191 Mass. 180 195
Coats v. Louisville & N. R. Co., 13 Ky.
L. 557 369, 373
v. Lynch, 152 Mo. 161 532.
Cobb v. Denton, 6 Baxt. (Tenn.) 235 99
sv. Macfarland, 87 Nebr. 408 33

v. Trammell, 9 Tex. Civ. App. 527. 415
Coburn v. Anderson, a Mass. 513 355
v. Harvey, 18 Wis. 147 21
Coburn, In re, 9 Misc. (N. Y.) 437 47
Cochran v. Cochran, 127 Pa. St. 486 171
v. Cochran, 43 Tex. Civ. App. 259 176
v. Elwell, 45 N. J. Eq. 333 374, 375
v. Thompson, 18 Tex. 652 2
Cochrane v. Pacha 140 N. Y. 516 272
Cockrill v. Cox, 65 Tex. 669 532
Codman v. Brigham, 187 Mate oa
411, 419
Coe _v. Hill, 201 pase. eo 289
Coffin 'v. Coffin Y. 9 449
Coffman v. Larne 85 Va. Aso 13, 488
v. Hedrick, 32 W. Va. 521
Coggins v. Flythe, 113 N. Ae 102
192, 193, 257
Coggins’ Appeal, 124 Pa. St. 10 191, 269
Coghill v. ennedy, 119 Ala. er 533
Coghlin v. Coghlin, 26 Ohio C. C. 470
Coit v. Comstock, 51 Conn. 352 "36 865
ee v. Speer, 24 App. Cas. (D. C.) inp
Colby v. Dean, 70 N. H. 591 293
Cole v. Fitzgerald, 3 Russ. 301 217
v. Littlefield, 35 Maine 439 349
v. Varner, 31 Ala, 244 354
Coleman v. Col leman, 69 Bony 39 1182
v. Coleman, 2 Ves. Jr. 638 140
v. Connolly, 242 IIL. 574 373, 418
v. Floyd, 105 Ark. 300 523
v. Jackson (Tex. Civ. App.), 126 S.
W. 117 309
v. O'Leary, 114 Ky. 388 50
v. San Rafael Tpk. Road Co., 49
Cal. 517 352
Coleman, In re, 111 N. Y. 220 127
Cole’s Estate, In re, 85 Misc. (N. Y.) 493
630
Collagan v. Burns, 57 Maine 449 505
Collier v. Grimesey, 36 Ohio St. 17
213, 243, 370
v. Munn, 41 N. Y. 143 397
v. Slaughter, 20 Ala. 263 288
Collier’s Will, In re, 40 Mo. 287 254

 

Collins v. Brazill, . a 432 534
v. Capps, 235 "Til. 560 203
v. Foley, 63 Md. 158 378
v. Hoxie, 9 Paige (N. Y.) 81 352
v. Phillips, 91 Iowa 210 169
v. Smith, 105 Ga. 525 55, 64
v. Wickwire, 162 Mass. 143 237
Collister v. Fassitt, 163 _N. ie 281 355
Collyer v. Collyer, 110 N. 481 464
Relates: v. Alton, 23 App. Ca (D. Ga)
Colt v. Colt, 32 Conn. 422 32, 463
v. Hubbard, 33 Conn, 281 232; 254
v. O’ Connor, 59 Mise. (N. aot 83 33
alton vy. Colton, 127 2 S. 300
323, 339, 355, 1211
Colvin v. Warford, 20 Nia: 357 476, 477
Comassi’s Estate, in re, 107 Cal. 1
105, 466, 467
Combs v. Combs, 67 Md. 11 237
Commons v. Commons, 115 Ind. 162
: 236, 323
Commonwealth v. Coleman, 52 Pa. St.
468 15
v. Martin, 5 Munf. a? 117 352
‘v. Pollitt, 25 Ky. L. 235
Compton v. ‘McMahan 3 Mo, APRs 505 8
v. Pierson, 28 N. 5. Eq. 81
v. Prescott, 12 Rob. (fa5 ae 106
Comstock v. Adams, 23 Kans. 513 63
v. Hadlyme Ecclesiastical Soc., 8
‘Conn. 254 448
Conant v. Stone, 176 Mich. 654 282
Condit v. DeHart, 62 N. I L. 78 167, 368
v. Reynolds, 66 N. j. L. 242 340, 352
v. Winslow, 106 Ind. 142 14
Conger v. Lowe, 124 Ind. 368 244, 296, 893
Canes tons Unitarian Soc. v. ‘Hale,

9 App. Div. (N. Y.) 396 42, 44
Conklinn v. ee 173 N. Y. 43 681
Conley, In re, 197 Pa, 291 218
Connecticut Trust &c. Co. v. Chase, 75

Conn. 683 218, 219, 469
v. Hollister, 74 Conn. a 346, 431
Connelly v. Beal, 77 Md. 527
Connor v. ‘Akin,’ 34 Ill. ae 431 414
v. Sheridan, 116 Wis. 666 293
Conoly v. Gayle, 61 Ala. 116 446, 448
Conover v. Fisher (N. J. en 36 Atl.
948 355
Conrad v. Long, 33 Mich.
isi, yee 289, 293
Conrades v. Heller, 119 Md. 449
Contentnea Quaker Soc. v. eas
12 N. Car. 189 100
Converse v. Converse, 21 Vt. 83
v. Starr, 23 Ohio ‘St. 491 a: 487, 516
Convey, In re, 52 Iowa 197 87
Conway v. Vizzard, 122 Ind. 266 449
Conwill v. Livingston, 61 Miss. 641 414
Canyigiem v. Conyngham (1750), 1 gis
Cooeh v. Cooch, 5 Houst. Apel) 540 138
v. Brown, 34 N. H. 5
Oe ‘Collier (Tenn, ), 62 e ow. 658 233
v. Hayward, 172 Mass. 195 96
v. Lambert, 3 Sw. & Tr. 46 151
v. McDowell, 52 N. J. Eq. 351 257
v. Universalist Gen. Convention, 138
Mich. 157 166, 189
v. White, 43 App. Div. iM, Y.) 388 478
v. bison 81 Mich. 50
Cooke v. Crawford, 13 Sim. My 371
v. Husbands, 11 Md. 492 376
v. Meeker, 36 N. Y. 15 347
v. Platt, 98 N. Y. 35 370
Cooksey v. Hill, 106 ee gk 286
Coon v. McNelly, 254 Til. 176
xlvi

TABLE OF CASES

[References are to Sections.]

Cooney v. Glynn, 157 Cal. 583
Reape Yi Cooper, 36 N. J. Eq. 121
» Eerste 65 App. Dis, WN. Y.)

342
351

<

v. Horner, 62 Tex. 356 381
v. Mitchell Inv. Co., 133 Ga. 769 257
v. Pogue, 92 Pa. St. 254 827
v. Williams, 109 Ind. 270 403
Cooper’s Estate, In re, 150 pe 576 338
Coover’s Appeal, 74 Pa. St. 51
Cope v. Cope, 45 Ohio St. tea 153
Copeland v. Barron, 72 Maine 206 820
v. Bruning, 44 ind. App. 405 353
Copley v. Ball, 176 Fed. 682 244
Copp v. Copp,’ 20 N. H. 284 412
Coppedge v. ‘Weaver, 90 Ark. 444 293
Corey v. Springer, 138 Ind. 506 235
Corker v. Corker, 87 Cal. 643 467
Cornelison v. Roberts, 107 Iowa 220 4
Cornell v. Goodrich, 21 Ind. 179 520
Cornell, In re, 17 Misc. (N. Y.) 468 410
Cornell's Estate, In re, 15 App. Div.
(N. Y:) 285 345
Cornwall, ae Falls City Bank, 92 Ky. gue
8
v. Hill (Ky.), 117 S. W. 311 194
Cornwell v. © Mount aoe M. XE.
Church, 73 W. Va. 97,231
Corrigan v. Jones, 14 Calo. 311 487
Corse v. Chapman, 153 N. Y. 466 368
v. Corse, 72 Hun (N. Y.) 39 421
Cort v. Massie, 171 III. ape 123 236
Corwine v. Corwine, 24 Eq. 579 9

See ae Will, In re, 4 App. Div. (N.

Bee

Gale v. De Sartiges, 17
f . & Dz.

Sale v. Cottrell, L. R

397 462
Couch v. Eastham, 29 W. Va. 784 324
v. Gentry, 113 Mo. 248 63
Coulan v. Doull, 133 U. S. 21 103
Coulson v. Alpaugh, 163 Ill. 298 336, 340

Coulter v, Crawfordsville Trust Co., 48
Ind. App. 64

v. People, 53 Colo. 40 489
Coulton v. Coulton, 127 U. S. 310 157
Coursen’s Will, In re, 4 N. J. Eg. 408 517

Courter v. Stagg, 27 J. Eq.
Cousens v. Advent Church, 93 Maine
2:

Cousino v. Cousino, 86 Mich. 323
Couts v. Holland, 48 Tex. Civ. App. 476

287,
Coveney v. Conlin, 20 App. (D. C.)
303

Cover v. Stem, 67 Md. 449

Covington First Nat. Bank v. De Pauw,
86 Fed. 722

Cowan v. Shaver, 197 Mo. 203 | 450,

Cowden v. Cowden, 2 How. (Miss.) 806

Cowell v. Colorado Springs Co., 100 U.

509

Ss. 270

v. South Denver R. E. Co., 16 Colo.
pp. 108 237
Cowell’s Estate, In re, 167 Cal. 222 182
Cowherd v. Kitchen, 57 Nebr. 426 394
Cowie v. Strohmeyer, 150 Wis. 401 11

Cowley v. Knapp, 42 N. J. L. 297

26, 150, 1187

v. Twombly, 173 Mass. 393 340

Coye v. Leach, 8 Metc. (wase.) 371 12

Coyle v. Coyle, 73 N. J. Eq. 528 173
Cox v. Handy, 78 Md.

252, 257, 258, ae

. John, 32 Ohio e 532

: Jones, 229 Mo. 53

. Von Ahlefeldt, 50 a Ann, 1266 103
. Wills, 49 N. J, Eq. 130 237

sas<<

 

Cox’s Estate, In re, 5 Pa. Dist. 206
Cox’s Estate, In re, 167 Pa. St. 501
Cozzens v. Jamison, 12 Mo. App. 452
Cozzens’s Will, In re, 61 Pa. St. 196
Crabb v. Young, 92 N. Y. 56 390,
Crafton v. Beal, 1 Ga. 322
Craig v. Beatty, 11 S. Car. 375

v. Leslie, 3 bu ge (U. oe 563
Crain v. Wright, 114 N. Y. 3
Cramton v. Rutledge, 157 ee 141
Crandall’s Appeal, 63 Conn. 365
Crandell v. Barker, 8 N, Dak. 263
Crane v. Bolles, 49 N. J. Eq. 373
Crane, In.re, 164 N. Y. 71
Crane’s Will, In re, 159 N. Y. 557
Crapo v. Price, 190’ Mass. 317
Crawford v. Clark, 110 Ga. 729

v. Engram, 153 Ala. 420

v. McCarthy, 159 N. Y. 514

138, 139,

v. Schooley, 217 Pa. 429

v. Thomas, 21 Ky. L. 1100

v. Wearn, 115 N. Car. 540
Crawford, In re, 113 N. Y. 366 311,
Crawford, In re, 21 Ohio C. C. 554

Crawiord’s Estate, In re, 17 Pa, Super.

t;
Crawfordsville Trust Co.

178 Ind. 25
Crawley v. Blackman, 81 Ga. 775
Crecelius v. Horst, 78 Mo. 566
Crerar v. Williams, 145 Ill. 625
Cresap v. Cresap, 34 W. Va. 310

v. Ramsey,

271,

ig ers Estate, In re, 161 Pa.

Crew v. Dixon, 129 Ind. 85
v. Pratt, 119 Cal. 131

Gedieadis Estate, In re, 132 Pa. St.
eraeh v. Dexter, 13 Gray ee)
330 , 493,

Crist v. Schank, 146 Ind. 277

Crittenden v. Fairchild, 41 N. Y. 289

Crittenden’s Estate, In re, Myr. Prob.
(Cal.) 50

caer v. Crocker, 11 Pick. (Mass.)

Crofeot’s Will, In re, 137 N. Y. S. 430
213, 231,

| Croft v. Croft, 4 Grat. oe 103

v. Williams, 88 N.

Croft, In re, 162 Mass. a a

Croker v. Croker, 87 Cal. 643

Crook v. Hill, 3 Ch. Div. 773

Capote v. Kings (Prince), 97 Ny. ¥.
4 3

Croom v. Herring, 11 N. Car. 393
Crosgrove v. Crosgrove, 69 Conn. 416
74, 180, 231,

Cross v. Benson, 68 Kans. 495

v. Del Valle, 1 Wall. (U. S.) 5

v. Hoch, 149 Mo. 325

v. Robinson, 21 Conn, 379
Cross’ Estate, in re, 163 Cal. 778
Eapesett v. Clements (Miss.), 7

Crossley v. Leslie, 130 Ga. 782

Crossman v. Crossman, 95 N. Y. 145
v. Crossman, 95 N. Y. 145

Crow v. Powers, 19 Ark. 424

Crowder v. Clowes, 2 Ves. Jr. 449

Crowley v. Hicks, 72 Wis. 539

Crowson v. Crowson, 172 Mo. 691

Crozier v. Bray, 120 N. Y. 366

So.

201, 237,
St
ae

TABLE OF CASES xvii

[References are to Sections.]

Cruger v. Phelps, 21 Misc. (N. Y¥.) 252 43
Coptatonls ¥s Home for Friendless, 113

Y 3
Cruit v. Owen, 21 App. D. C. 378 516

v. Owen, 203 U. S. 368 240
Crum _v. Bliss, 47 Conn, 592 307
Crumb’s Will, 2 N. Y. S. eee 441
Crump v. Williams, 56 Ga. 420
Cenmpler v. Barfield &c. On 114 Ga,

570 296
Cruse v. Cunningham, 79 Ind, ae 201

v. McKee, 2 Head (Penn) 1 374, 375
Cudney v. gay. 68 N. 530
Culp v. Lee, 109 N. Car. ast 7a5
Cummings v. Lohr, "246 a 577 235
rans x Cummins, 1 Marv. (Del.)

495, 532, 534

v. Riorion, 84 Kans. 791 210
Cundiff v. Seaton, 20 Ky. L. 1271 212
Cunningham v. Cunningham, 72 Conn.

253 321

v. Cunningham, 140 Ky. 193 63

v. Cunningham, 81 S. Car. 506 415

v. Mills, 102 Ga. 584 446
Curd v. Field, 103 Ky. 293 341, 398
Curdy v. Berton, 79 Cal. 420 342
Curling v. Curling, 8 poe AKy) 38 56
Curran v. Green, 18 R. I. an

Currie v. Murphy, 35 Miss 3
Currin v. Fanning, 12 Hun (N. Y.) 458 5
Curry v. Patterson, 183 Pa. St. 238 213
Curtis v. Underwood, 101 Cal. 661 493, 497
Curtiss v. Strong, 4 Day (Conn.) 51 448
Cushing v. Blake, 30 N. J. Eq. 689
101, 354
Cushman v. Arnold, 185 Mass. 165 855
v. Cushman, 116 App. Div. (N. Y.)
763 294

Custis v. Adkins, 1 Houst. ag Ree) ie 396

Cuthbert v. Chauvet, 136 N. 358
Cutler v. Cutle., 130. N. Car. a 442
Cutter v. Butler, 25 N. H. 343 8
D

Daggett v. Slack, 8 Metc. (Mass.) 450
194, 195
v. White, 128 Mass. 398 411
aihy v. Maxfield, 244 Ill. 214 33

Dale’s Appeal, 57 Conn, 127 530
Dalrymple’s Estate, In re, 67 Cal. 444 534
Dalton v. Wickliffe, 35 La. Ann, 355 23
Dalzell by Crawtord, 1 Pars. Eq. Cas.

(Pa.) 3 398
Dame v. Dome, 20 N. 55, 77
Dammert v. pet lat w By. 564 45

Damon v. Damon, 8 Allen (Mase.) 192 ae

Dana v. Dana, 185 Mass. 156 822

Daniel v. Whartenby, 84 U. S. 643. 173
v. Whartenby, 17 Wall. (U.S.) 639 210

Daniels v. Pratt, 143 Mass. 216 67
Dannelli v. Dannelli, 4 oe (Ky.) 51 49
Darne v. Loyd, 82 Va. 433
Dart v. Dart, 7 Conn. 250. 238
Daubenspeck’ v. Biggs, 71 Ind. 255 6
Dauphin County Historical Soc. v.
Kelker, 226 Pa. 16 448

Davenport v. Sargent, 63 N. H. 538
Davidson v. Chalmers, 33 Beav. 653 356
v. Coon, 125 Ind. 497
320, 321, 322, 326

v. Koehler, 76 Ind. 398 412
Davie v. Wynn, 80 Ga. 673 306
Davies v. Davies, 55 Conn. 319

358, 809

171,
v. Jones, L. R. 24 Ch, Div. 190 351

‘i ‘

 

Davies, In re, L. re (1892) 3 Ch. 63 221
Davis v. Baugh, 1 Sneed (Tenn.} 477 80
v. Berger, 54 Mich. 652 472

v. Boggs, 20 Ohio nt pre 154
v. Chapman, 83 Va. 414
v. Davis, 43 W. ae 107
v. Fogle, 124 Ind. a” 105, 460
v. Hutchings, 15 Ohio C. C. 174 435
v. Inscoe, 84 N. Car. 396 413
v. Kerr, 3 App. Div. i Y.) 3220-172
v. King, 89 N. Car. 467
v. Laning, 85 Tex. a 82
v. Martin, 3 Munf. (Va.) 66
v. Milady, 92 S. Car. 135 62
v. Ripley, 194 Ill. 399 245
v. Rogers, 1 Houst. oo 44 441
v. Sanders, 123° Ga. 191, 284
ve pes 209 Ill. 308" 509
v., Williams, 57 Miss. 843 5
v. Williams, 85 Tenn. 646 213
Davis’ Appeal, 100 Pa. St. 201 233, 805
Davis’ Estate, In re, 136 Cal. 590 493
Davis’ Estate, In re, 157 a 318 485, 516
Davis, In re, 45 Misc. (N. Y.) 554 517
Davis, In re, 103 Wis. 455 22

Davis, Succession of, 12 La. Ann. 399 416
Davis’ Will, In re, 120 N, Car. 9 28, 502
pane a ‘Fanning, 2 Johns. Ch. (N.

Y.) 2 368
Dawes v. Pelee 4 Mass. 208 396
Dawson v. Dawson, 6 Ae 292 106

v. Ramser, 58 Ala. 398

v. Smith’s Will, 3 Foust, (Del.) gay

0

,
eer oe Appeal, 23 hee 69 454
Day v. Day, 3 N. J Eq. 549, 441

v. Floyd, 130 lass 488 492

v. Roth, 18 N. a 4

Vv. Washburn, 56 N. 33
Day, Ex parte, 1 Bradt oe CN. Y.)

476 28
Deake’s Appeal, a Maine 510 51

Dean v. Jagoe, 46 Tex. Civ. App. 389 469
v. Loewenstein, 6 Ohio C. C. 587 322

v. Mumford, 102 Mich. 510 172

v. Rounds, : ig R. 436 139

v. Swayne, 67 Rane. 241 521

nee v. Littlefield, 1 Pick. (Mass.) a
De Sets Estate, In re, 165 Cal. 223

ee , 194, 212

De Berry v. Wheeler, 128 Mo. 519

De Jane v. Dobbins, 29 N. J. Ea 36 188

Dobbins, 31 N. J. Eq. 671 44, 97

OSs Castrol Will, In re, 32 Misc. (N. oy

Y.) 193

Decker v. Decker, 12k il 341 58, 215, 324

Dee v. Dee, 212 II. 201, 340

Deering v. ’Adams, 3 ‘Maine 264 417

v. Tucker, 55 Maine 284 296
Deering & Co. v. Kerfoot, 89 on 491 327
Deford v. Deford, 36 Md. 168 270
Defreese v. Lake,” 109 Mich. 415 236, 244
De Geofry v. Riggs, 133 U. S. 258 96
Degman v. Degman, 98 Ky. 717 375
Be Hart, In re, 67 Misc. (N. Y.) 13

116, 447

De Haven v. Sherman, 131 Ill. 115 222
Deifendorf v. Deifendorf, 132 N. ¥Y. 100 4
el sehirors v. Delacherois, 11 H. L. 7

Cas. 57
ia v. Salina, 34 Kans. 532 530
Delaney’s Estate, In re, 49 Cal. 76 419

De eee v. De Boom, we Cal. 581 342
De Boom, 67 Cal. 195
De ee s Estate, In Rs "19 Cal. OL i
xlviii

TABLE OF CASES

[References are to Sections.]

Delehanty v. Pitkin, 76 Conn. 412
‘Demeritt v. ‘Young,’ 72 N. H. 202
‘Deming v. Butcher, 91 Iowa 425
1DeMoss v. Robinson, 46 Mich. 62
Dempsey v. Lawson, 46 L. J. P. 23

,. v. Taylor, 4 Tex. Civ. App. 126
cone v. Kemp, 79 Misc. (N. Y.)

poneele v. Morgan, 5 Call (Va.) 407
r. oH ex dem v. McMurtrie, 15 N. J. L

v. Gibbons, 22 ut a L. 117
;Dengel v. Brown, 1 App. D. C. 423
'Denigan v. a Francisco Sav. Union,

127 Cal.

Denike v. Havtis, 84 N.Y. 8

Denison v. Denison, 185 N. Y. 438
Denning v. Butcher, 91 Iowa 425
Dennis v. Dennis, 5 Rich.

v. Holsapple, 4148 Ind.
Dennis’ Estate, In re, 169 Da. St. 493
Dennison v. Goehring, 7 Pa. St. 175
Denny v. Pinney, 60 Vt. 524
De Nottebeck v. Astor, 13 N. Y. 98
Denslow v. Moore, 2 Day ene 12
Dent v. Pickens, 61 W. Va. 4!

Denton v. Clark, 36 N. J. Ea 534
De a v. Clendining, 8 Paige (N.

ive Michael, . N. Y. 467
‘Deppen v. ‘Deppen, 132 Ky. 755

oe Car.) 468 ‘

462, 463, ue

Derby v. Derby, 4 R. I. 4

Derickson v. Garden, 5 Del Ch, 323 283
Deseumeur v. Rondel, 76 N. J. Eq. 394 470
De ane v. Supreme’ Council, 109 Cal.
373
Deslonde v. Darrington, 29 Ala. 92 492
Despard v. Churchill, 53 N. Y. 192 410
Detwiller v. ‘Hartman, 10 Stew. (37 N.
J. Eq.) 347
Deupree v. Deupree, 45 Ga. 414 447
Petters v. Rohlfing, 22 Colo. App. 543. 81
De Vaughn v. Hutchinson, 165 U. S
566 41, 47
v. McLeroy, 82 Ga. 687 394
Devaynes v. Robinson, 24 Beav. 86 379
Devecmon v. Devecmon, 43 Md. 335. 440
Devlin v. Commonwealth, 101 Pa. St. a
273
Devling v. Little, 26 Pa. St. 502 418
Devoe, In re, 66 App. Div. (N. Y.) 1 312
Devoe, In re, Y¥. 281 170
De Vries, In re, 17 Cal, App. 184 252
Dew v. Reid, 52 Ohio St. 519 51
i ae v. Yates, 10 Johns, (N. Y.)
141, 142
ig ne v. Evans, 63 Conn. 58 355
v. Gardner, 7 Allen (Mass.) 243 189
be Harvard College, 176 Mass, 192
152, 313
v. Inches, 147 Mass. 173
Diament v. Lore, 31 N. 2 1. 220 213, 243
Dibble v. Winter, 247 Ill. 243 521
Dicken v. McKinlay, 163 Tu. 318 33
Dickerman v. Eddinger, 168 Pa. 86,240
a
Dickerson vy. Dickerson, 211 Mo. 483 ~
50, ae 284
v. Sheehy, 156 App. Div. MN Y.)
101 253
Dickerson’s Appeal, a Conn, 223 57, 206
Dickey v. Vann, 81 Ala. 425 485, 506
Dickie v. Carter, 42 Ill. 376 108
Dickinson v. Conniff, 65 Ala. 581 381
v. Henderson, 122 Mich. 583 347, 349
v. Overton, 57 N. Eq. 26 142
v. Stidolph, 11 C. B. (N. S.) 341 152

 

Dickison v. Dickison, 138 Ill. 541
Dickson v. Dickson 23 S, Car. 216
v. Field, 77 Wis. 439
v. Montacmery, 31 Tenn. 348
v. United States, 125 Mass. 311
Diehl v. Middle ate Loan &c. Co., 72

W. Va. ey
Rodgers, 169 Pa. St. ate

Diehl’s Will, In re, 112 N. Y. S. 717
Dieter v. Shafter, 70 Vt. iio”
Diez’s Will, In re, 50 N. Y. 28,

Dildine v. Dildine, 32 N. J. Ea, a 191;

Dilger v. McQuade, 158 Wis.

Dillard v. Diflard ee a Ss. 3B 669
v. Ellington, 57 Ga.

Dillon v. Gray, 87 ee 129

Dills v. La Tour, 136 Mich. 243

Dimmick v. Patterson, 142 N. Y. 322

Dingman v. Beall, 213 Ill. 238

Disney, In re, 190 N. ¥. 128

Ditchey v. Lee, 167 Ind. 267

Pixon v. Cooper, 88 Tenn. 177

D’Armond, 23 La. Ann. 200
Dixon's Appeal, 55 Pa, St. 424
Dixon’s Estate, In re, 143 Cal. 511

1132
64
323

186
98

Doan v. Carroll County Parish, 103 Md.

662
Doane _v. Hadlock, 42 Maine 72
a Mercantile Trust Co., 160 N. Y.

3
ack v. Robinson, 26 N. H. 372 20,

Dodd v. Winship, 144 Mass. 461
Dodds v. Winslow, 26 Ind. eee 652
Dodge v. Gallatin, 130 N. 117

v. Williams, 46 Wis. sa 185,
Doe v. Atkinson, 63 ae Car. 210

v. Bryan, 34 N. 11
Considine, 6 Wall (U. S.) 458

242,
Pattison, 2 Blackf. (Ind.) 355
44

ve.
Vv.

- puulenane 5 B. & Ad. 765

Tofield, 11 East 246
5 Vincent, 1 Houst. (Del.). 6

v. Willetts, 7 Mann. Gr. & S.
Tokers v. Grady, 105 Maine 36 70098,

. O'Callaghan, 157 Mass. 90

= O’Hearn, 214 Mass. 290
Dolbeer, Estate of, 153 Cal. 652
Dole’s Estate, In re, 147 Cal. 188
Dombrowski’s Estate, In re, 163 Cal.

saa

29
Baigpeele v. Sayre, 3 Sandf. (N. Y.)

Donaldson v. Allen, 182 Mo. 626
v. Hall, 106 Minn. 502
Donegan v. Wade, 70 Ala. 501
Donge’s ‘Estate, In re, 103 Wis. 497
Donnell’ v. Newburyport Homeopathic
Hospital, 179 Mass. 187
Donnellan’s Estate, In re, see ee 14
Donnelly v. Edelen, 40 Md.
Donohoo v. Lea, 1 Swan Crenn.) 119
Donohue v. Donohue, 54 Kans. 136
v. McNichol, 61 Pa. St. 73
Dunne v. Clonwetter, 20 Ohio C, C.

Doran vy. Mullen, 78 i a

Dorin v. Dorin, L. R. L. 568

Dorion v. Dorion, 20 ea “Sup. Ct. 430

Dorr v. Johnson, 170 Mass. 540

Dorries’ Succession, 37 La. Ann. 833
23, 454,

466,
290,

Dorsey v. Dodson, 203 Tll. 32
Dortch v. Dortch, 71 N. Car. 224
Seni Dougherty, 4 Met. (Ky.)
TABLE OF CASES xlix

[References are to Sections.]

Dougherty
‘vy. Holscheider, 40 Tex. Civ. App. al 56
2
v. Metropolitan L. Ins. Co., 87 Hun
(N. Y.) 15 127
v. Thompson, 167 N. Y. 472 205
Doughten v. Vandever, 5 Del. Ch. 51
2 167, 187
Douglas v. James, 66 Vt. 21 193
Douglass v. Forrest, 4 Bing. 686 413
Dow v. Abbott, 197 Mass. 283 814
v. Gould &. Mfg. Co., 31 Cal. 629 3
Dowd v. Tucker, 41 Conn. 197 342
Dowell v. Workman, 25 Ky. L. 1761 194
Dower _v. Church, 21 W. Va. 23 523
v. Seeds, 28 W. Va. 113 464
Downey v. Downey, 16 Hun (N. Y.)
481 497
Downie’s Will, In re, 42 Wis. 66 446

Downing v. Marshall, 23 N. Y. 366
97, 352, 367
v. Nicholson, 115 Iowa 493 192, 310
Doyle v. Blake, 2 Sch. & Lef. 231 413
Drake v. Drake, 134 N. Y. 220° 372, 374
v. Steele, 242 Ill. 301 213
165, ay

Drane v. Beall, 21 Ga. 21
Draper v. Jackson, 16 Mass. 480
Drayton v. Rose, 7 Rich. Eq. (S. Car.)

328 479
Dresel v._King, 198 Mass. 546 308
Drew v. Drew, N. H. 489 202

v. Wakefield, 54 Maine 291
181, 307, 313

Dreyer v. Reisman, 202 N. Y. 476 25, 200
Drohan v. Drohan, 1 Ball & B. 185 - 378
Druid. Park Heights Co. v. Oettinger,

53 Md. 46 372
Dryer v.:Crawford, 90 Ala. 131 191, 237
Dublin v. Chadbourn, 16 Mass, 433

508, 524
Du Bochet, In re, 70 L. J. Ch. 647 193
Duckworth v. Jordan, 138 N. Car. 520 308
Duclos v. Benner, 136 N. Y. 560 241
Dudgeon v. Dudgeon, 87 Mo. 218 324
Dudley v. Weinhart, 93 Ky. 401 26, 31
Duff v. Duff, 103 Ky. 348 520
Duffel v. Burton, 4 Har. (Del.) 290

57
v. Robeson, 2 Harr. (Del.) 375 82, 87.

Duffy v. Calvert, 6 Gill (Md.) 487 398
Dufour v. Deresheid, 110 La. 344 340
Dugan v. Northcutt, 7 App. D. C. 351 493
Duggan v. Slocum, 92 Fed. 806 265
Dukes v. Faulk, 37 S. Car. 255 282

Dulany v. Middleton, 72 Md. 67 190, 435
Dulin v. Moore, 96 Tex. 135 296, 341
v. Moore tex Civ. App.), 69 S.

. 234
Dulle’s Estate, In re, 218 Pa. 162 884
Dunahugh, In re, 130 Iowa 692 462

Dunavant v. Fields, 68 Ark. 534 240
Duncan v. De Yampert, 182 Ala. 528 176
v. Forrer, 6 Binn. (Pa.) 193 7
v. Franklin Twp., 43 N. J. Eq. 143 395
v. Martin, 7 Yerg. (Tenn.) 519 232
v. Stewart, 25 Ala. 408 492
v. Wallace, 114 Ind. 169 320, 322, 326
Dunham v. Averill, 45 Conn. 61 32, 189
v. Marsh, 52 N. J. Eq. 256 208
v. Milhous, 70 Ala. 596 398
Dunlap v. Ingram, 57 N. Car. 178 291
v. Robinson, 28 Ala. 100 106
Dunlop v. Dunlop, 10 Watts (Pa.) 153 443
v. Lamb, 182 Ill. 319 6
Dunn & Bryan, 38 Gz. he 240
~ Cor . J. Eq.
© Hourtton (3 J. 24 AHS
v. Houghton (N. J. Eq.), tl.
v. Morse, 109 Maine 254 367, 372

 

Dunn "
v. Schell, 122 Cal. 626 250
Dunsmuir’s Estate, In re, 149 Cal. 67 520
Duperier v. Bevard, 107 La, 91 493
Du Pont v. Du Bos, 52 S. Car. 244 235
Durand, In re, 194 N. Y. 477 77, 78
Durbin v. Redman, 140 Ind. 694 169
Durfee v. MacNeil, 58 Ohio St. 238 286
v. Pomeroy, 154 N. Y. 583
Durham v. Smith, 120 Ind. 463
Durr v. Wilson, 116 Ala, 125 365
Dworsky v. Arndstein, 29 App. Div.
(N. Y.) 2 523
Dwight v. Newell, 15 Ill. 333 418
Dwyer’s Estate, In re, 159 Cal. 680 78
Ne - Beaver Creek Church, 48 S. an
86

Dyer v. Dyer, 87 Ind. 13 449
v. Jacoway, 50 Ark, 217 414
Dye’s Will, In re, 16 N. Mex. 297 518

E

Eager v. Brown, 14 La. Ann. 684 354
Eagle’s Case, 3 Abb. Pr. (N. Y.) 218 221

Eames v. Hickman, 12 Hun (N. Y.)
425 14

v. Protestant Episcopal Church, 68
N. H. 203 395
Earhart, In re, 50 La. Ann. 524 487
Earle v. Coberly, 65 W. Va. 163 232
Early v. Early, 5 Redf. Surr. (N. Y.) eid

v. Nash, 139 App. Div. (N. Y.) 736
523, 525
Earnhardt v. Clement, 137 N. Car. 91 33
Easterly v. Keney, 36 Conn. 18 353
Eastis v. Montgomery, 93 Ala. 293 500
Eaton v. Broaderick, 101 Miss. 26 232
v. Brown, 193 U. S. 411 453
v. Brown, 20 App. Cas. 453 26
v. Eaton, 88 Conn. 286 173
v. Straw, 18 N. H. 320 365
v. Perolin, 49 N. J. Eq. 570 159
v. Rath, 89 Kans. 329 6
Eberley’s Appeal, 110 Pa. St. 95 346
Eberts v. Eberts, 42 Mich. 404 284
Eckstein v. Radi, 72 Minn. 95 62
Eddie v. Parke, 31 Mo. 513 523

Edelman’s Estate, In re, 148 Cal. 233

506, 518, 519
Edenfield v. Edenfield, 131 Ga. 571 62
Edgerly v. Barker, 66 N. H. 434 190, 413
Edson v. Parsons, 155 N. Y. 555 28, 470
Edwards v. Barksdale, 2 Hill Ch. (S.

Car.) 416 170
v. Bender, 121 Ala. 77 176, 351
v. Bibb, 43 Ala. 666 173
v. Edwards, 183 Mass. 581 347

v. Hammond, 1 B. & P. N. R. 324n 254
Edwards, In re, 132 App. Div. (N. Y.)

544
Edwards’ Estate, In re, 12 Phila. (Pa.)
8

410
Ege v. Hering, 108 Md. 391. 280
Eggleston v. Merriam, 83 Minn. 98 138

Eglehart v. Eglehart, 26 App. Cas. (D.
C.) 20 3

: 9
ENe’s Will, In re, 155 Wis. 46 194
Ehrenberg’s Succession, 21 La. Ann.

280 453
Eichelberger’s Estate, In re, 135 Pa. St. 5
160
Eichelberger’s Estate, In re, 170 Pa.
St. 242 347

Eikman v. Landwehr, 43 Ind. App.
724 341
] TABLE OF CASES

[References are to Sections.]

St.
Eisiminger v. Eisiminger, 129 Pa. St.
Ela v. Edwards, 16 Gray (Mass.) a1,
Elcock’s avail, In re, 4 McCord Ss

Car.) 3
Eldon v. Doe, 6 6 Blackf. Gad 341

nidned, v. Meek, 183 Ill.
Shaw, 112 Mich. 537°

ERSePROnE Estate, In re, 180 Pa.

3
Eldridge Me Eldridge, 9 Cush. (Mass.)

v. Eldridge, 41_N. J. E
v. Greene, 17 R. I. 7" 3

Elkinton v. Elkinton (N. J. Eada, f
Atl. 587

Ellerson v. Wescott, 148 N. ait 149°
Ellicott v. Ellicott, 50 Md.
Ellig v. Naglee, 9 Cal. 683
Elliot v. Fessenden, 83 Maine 197
Elliott _v. Brent, 6 ee cy (D. C.) 98
v. Elliott, 117 Ind.
v. Welby, 13 Mo. rea 19
Elbarr s Estate v. Wilson, 27 Mo. App.

Ellis v. Aldrich, 70 N. H. 219 232,
v. Crawson, 147 Ala. 294
v. Granger, 22 Misc. (N. Y.) 656
v. Secor, 31 Mich. 185
Elmore’s Succession, 124 ia, 91
Elmslie’s Estate, In re, 10 Pa. Dist. 397
Elston v. Montgomery, 242 Ill. 348
Elwell v. Universalist General aoe
tion, 76 Tex. 514 166, 167,
‘algae v. Deifendorf, 5 Barb. (N. VY.)

3
Ely v. Ely, 163 ae Ds, ih Y.) 320

v. Pike, 115 Ill. ape 2
Emans v. Emans, 3 qi L 967
Emery v. Darling, 50 Ohio St. 160

v. Van Syckel, 17 N. J. Eq. 564

v. Wason, 107 Mass. 507 56,
Emmons v. Atchison, 13 Ky. L. 142
Emmons, In re, 110 App. Div. (N. Y:)

701 32,
Endicott v. Endicott, 41 N. J. Eq. i
2

65 Md. 539

In re, 124 Cal. 292
Engle’s Estate, In re, 166 Pa. St. 280
Engle’s Estate, In re, 167 Pa. St. 463
Engel’s Estate, In re, 180 Pa. St. 215
English v. McCreary, 157 Ala. 487
Enloe v. Sherrill, 28 N. Car. 212
Ennis v. Smith, 14 How. (U. S.) 400

>

Engel v. State,
Engle’s Estate,

Enos v. Snyder, 131 Cal. 68 13,
Enslen v. Allen, 160 Ala. 529
Ensley: v. Ensley, 105 Tenn. 107 340,

Episcopal City Mission v. Appleton, 117
ass. 326

Epps v. Dean, 28 Ga. 533

Eegmat v. Meyer, 52 Misc.

Erwin v. Hamner, 27 Ala. 296
Eschbach v. Collins, 61 Md. 478
Essington v. Vashon, 3 Mer. 434
Estep v. Mackey, 52 Md. 592

v. Morris, 38 Md. 417
Esty v. Clark, 101 Mass. 36
Ethridge v. Bennett, 9 Houst.

(N. Y.)

452,

(Del.)

Etter v. Armstrong, 46 Ind. 197
Eubank v. Clark, 78 Ala. 73

Eufaula Nat. Bank v. Manasses, soa

Ala. 379

 

Evans v. Anderson, 15 Ohio St. Pee

v. Arnold, 52 Ga. 169 5235
v. Beaumont, 4 Lea (Tenn.) 599

v. Crosbie, 15 Sim. 600

v. Massey, 8 Price 22

v. Moore, 247 Ill. 60

v. Smith, 28 Ga. 98

v. Walker, 3 Ch. Div. 211
Evans, In re, 37 Misc. (N. Y.) 337
Evan’s Appeal, In re, 51 Conn. 435
Evan’s Estate, In re, 155 Pa. St. 646
Hyaville Ice &c. Co. Ps Winsor, 148

, 47, 490, 506,

Bverdell 2 Hill, 58 ar ’ Div. (N, Y.)

Everitt v. Everitt, 29 N. Y.
Everson v. Pitney, 40 N. J. ie. 539
Everts’ Estate, In re, 163 Cal. 449
Ewing v. Mallison, 65 Kans. 484

v. Nesbit, 88 Kans. 708
Eyre’s Estate, In re, 205 Pa. 561
Eyre’s Estate, In re, 7 Wash. 291

F

Faber v. Police, 10 S. Car.
Fahnestock v. Fahnestock, en Pa. am
56

Fahnestock’s Appeal, 104 Pa. St. 46
Fahrney v. Holsinger, 65 Pa. St. 388
Fairchild v. Edson, 154 N. Y. 199
Fairfax v. Brown, 60 Md. 50
Fairman v. Beal, 14 Ill, 244

Fair’s Estate, In ré, 136 Cal. 79
Falk v. Turner, 101 Mass. 494
Falkner v. Butler, 1 Ambl. 514
Fallon v. Chidester, ' 46 Iowa 588
Fallon’s Will, In re, 107 Iowa 120
Faloon v. Flannery, 74 Minn. 4

366, 374,

Fargo v. Miller, ee Mase. 225

v. Squiers, 154 N 250 325,
Faries’ Appeal, 23 Pa, a 29
Farish v. Cook, 78 Mo. 212
Farley v. Farley, 50 N. J. Eq. 434
Farmer v. Farmer, 93 Ind. 43

v. Farmer, 129 Mo. 530

v. oe 46 N. H. 435

28,

375,

Farmers’ L. &c. Co. v. Ferris, 67 App.
Div. ¢ 1

Farmers’ L. &c. ape In re, 138 App.
Div. ‘((N. Y.) 1

Farmington oe Bank v. Curran, 72
Conn. 342
Farnam v. Farnam, 83 Conn. 369
Farnham v. Barker, 148 Mass. 204
Farnsworth v. Whiting, 102 Maine 296
Farnum v. Bascom, 122 Mass. 282
ie, 137, 139,
v. Boyd, 56 N. J. Eq. 7
Farnum’s Estate, In re. 191 Pa St. 75
Farrar v. McCue, 89 N.Y
Farrell v. O’ Brien, 199 vu st 308
Faught v. Faught, 98 Ind. 470
Faulk v. Dashiell, 62 Tex. 642
Fay v. Taft, 12 Cush. (Mass.) 448
v. Vanderford, 154 Mass. a
Fay’s Estate, In re, 145 Cal.
Fearn v. Postlethwaite, a i ” 626
Fears v. Brooks, 12 Ga. 195
Fearson v. Dunlop, 21 D. C. 236
Felersvend) In re, 38 Misc. (N. Y.)
234,

Feit v. Richard, 64 N. J. vt 16
Feley v. Syer, i121 Md. 79

508,
TABLE OF CASES lt

\

[References are to Sections.]

Fellows v._Allen, 60 N. H. 439 467
Felton v._Sowles, 57 Vt. 382 416
Fenn v. Death, 23 Beav. 73 176

Pergueen, sy Ferguson, 39 U. C. Q. B.

v. Herr, 64 Nebr. 649 105
v. Thomason, 87 Ky. 519 285
346

Ferguson’s Estate, In re, 223 Pa. 720
Ber ees Will, In re, L. R. (1902)

1 Ch. Div. 483° 49
Fernandez’s Estate, In re, Bs Cal. 579 414
Ferrell v. Gill, 130 Ga. 534 32

Ferris v. Neville, 127 Mich. 444 447
Ferry’s Appeal, 102 Pa. St. 207 ef
Fesler v. Simpson, 58 Ind. 83 488

Festorazzi v. St. Joseph’s, 104 Ala. 327 100
Fetterhoff’s Estate, In re, 228 Pa. 535 448
Fickle v.. Snepp, 97 Ind. me ae 488
Fidelity Insurance T. & S. D. Co’s A
peal, 121 Pa. St. 1 * 467
Fidelity Trust Company’s Appeal (Pa. .
Eastern Rep. 261 6
ints Tae Company’s Appeal, 108
Z

St. 06
Field v. v. ‘Apple River Log Driv. Co., 67 * ,
49
v. a. 193 Fed. 160 530
Fields v. Carlton, 75 Ga. 554 469
v. Fields, 93 Ky. 619 194
Field’s Appeal, 36 Conn. 277 498
Field’s Will, In re, 204 N. Y. 448 444
sere Vv. Shepard, 26 Hun (N. Y.)
167
Fifer v. Allen, 228 Ill. 507 830
Fifield v. Van Wyck, 94 Va. 557
186, 189, 290
‘Filhiol’s Succession, 119 La. 998 108
Filkins v. Severn, 127 Iowa 739 187
Finch v. Finch, 14 Ga. 362 490, 518

Findley v. Findley, 11,Grat. (Va.) 434 6
Finegan v. Theisen, 92 a 178 107
mines v. Sinnott,’ 57 N. Y. Super. Ct.

212
Finlay v. King, 3 Pet. (U. S.) 346 280
ee Bapuist Church v. Robberson, 71

First Nat. Bank v. De Pauw, 86 Fed.
722 286

First Universalist Soc. v. Boland, 155
Mass. 171 70, 283
Fischbeck v. Gross, 112 Ill. 208 342
Fish v. Poorman, 85 Kans, 237 533
Fisher v. Clopton, 110 Me App. 663 519
v. Fisher, 80 Nebr. 280

Ve Wagner, 109 Md. rn 64
v. Wister, 154 Pa. St. 65 242
Fisher, In re, 4 Wis ant 462

Fisk v. Fisk, 60 N. ‘S. Eq. 170

Fisk, In re, 45 pie, (N. yy ae 349, at

Fitch v. Randall , 163 Mass. 381

Fitchie v. Brown, 211 U. S. 321 346

Fite v. Beasley, 12 Lea (Tenn.) 328 773

Fitzgerald v. Wynne, 1 App. D. C. 107 505

Fitzgerald, In re, 33 Misc. (N. Y.) 325 151

Fitzhugh v. Hubbard, 41 Ark. 64 a.
v. Townsend, 59 Mich. 427

Fitzpatrick v. Fitzpatrick, 10 am 552 245

Flagg v. Walker, 113 U. ’s.

Flanders v. Blandy, 45 Ohio c 108

Flanner v. Fellows, 206 Ill. 136 250, asi

Flannery’s Will, In re, 24 Pa. St. 502 42

Flannigan v. Howard, 200 Ill. 396 105, 467

Flatauer v. Loser, 156 App. Div.

-) 591 4
Fleming v. Ray, 86 Ga. 533 241
Flenner v. Flenner, 29 Ind. 564 6

 

Fletcher v. American Trust &c. Co.,
a. 30 379

v. Gates (Tex. Civ. App.), 63 S. W.
O57 151

v. Williams wee Civ. App.), 66 S.

W. 860 221
Fletcher’s Appeal, 125 a ae 352 347
Flinn v. Davis, 18 Ala. 154

v. Flinn, 4 Del. Ch. a 396
v. Frank, 8 Del. Ch. 186 32
v. Owen, 58 Ill. 111 451, 528
Flintham v. Bradford, 10 Pa. St. 82 477
Flint’s Estate, In re, 100 Cal. 391 533
Flood v. Kerwin, 113 Wis. 673 442, 493
v. Pragoff, 79 Ky. 607 442, 445
v. Ryan, 220 Pa. 450 879
Flora v. Anderson, 67 Fed. 182
173, 176, 193
Florey v. Florey, 24 Ala. 241 500, 531
Floto v. Floto, 213 Ill. 438 493, 523
Flowers v. Flowers, 74 Ark, 212 518
Floyd v. Floyd, 90 Ind. 130 520, 523
Flummerfelt v. Flummerfelt, 51 N. J.
Eq. 432 347
Flynn v. Holman, 119 Iowa 731 194, 212
Fogg v. Clark, 1 N. H. 163 208, 211, 234
Fogle v. St. Michael Church, 48 S. Car. Pe
Fogler v. Titomb, 92 Maine 184 243
Foley v. O’Donaghue, 167 Ind. 134 523

Foley, In re, 27 Misc. (N. Y.) 77
Foley’s Will, In re, 76 Misc. (N. Y.)

168

PRS eee v. Follansbee, 7 App. D. C.
8:

Folwell’s Estate, In re, 67 N. J. Eq.
570 232

Foote v. Foote, 61 Mich. 181 489
v. Saunders, 72 Mo. 616 812
Ford v. Ford, 80 Mich. 42 41, 45, 49
v. Ford, 23 N. H. 212 434
v. Ford, 70 Wis. 19 35, 41, 49
v. Gill, 109 Ga. 691 234
v. Ticknor, 169 Mass. 276 233, 237
Forepaugh’s Estate, In re, 199 Pa. 484 395
Heres Oil Co. v. Crawford, 77 Fed.
0

236, 245
Forman v. Woods, 20 Ky. L. 1700 286
Forney v. Ferrell, 4 W. Va. 729 534
Forrest v. Porch, 100 Tenn. 391 256
Forsaith v. Clark, 21 N. H. 409 234
Fortner v. Wiggins, 121 Ga. 26 446
Fortune v. Buck, 23 Conn. 1 107, 495

Fosdick v. Fosdick, 6 Allen (Mass.) 44
193, 265, 270
v. Hempstead, 55 Hun (N. Vv.) 611 208

Foss v. Crisp, 20 res pero 121 96
v. Sowles, 62 Vt. 417
Fosselman v. Elder, 98 cm St. 159 488
Foster v. Foster, 7 Paige Oy, Y.) 48 489
v. Stewart, 18 Pa. St. 23 234
v. Wick, 17 Ohio 250 235
v. Willson, 68 N. H. 241 355
Foster’s Appeal, In re, 87 Pa. St. 67 505
Fotheree v. Lawrence, 30 Miss. 416 485
Fouke v. Kemp, 5 Har. & J. (Md.) 135 176
Fowler v. Black, 136 Ill. 363 244

v. Duhme, 143 Ind. 248 158, 286

v. Stagner, 5S ‘Tex. 393 442, 448

v. Young, 19 Kans. 150 525
Fowlkes v. Wagoner (Tenn.), 46 S. W.

586 283, 296
Fow’s Estate, In re, 147 Pa. St. 264 84
Fox v. Fox, 102 Tenn. 77 232

v. Senter, 83 Maine 295 61, 221
Foxall v. McKenney, Fed. Cas. No.
5016 ° 216
lii TABLE OF CASES

[References are to Sections.]

Fox’s Estate,

In re, 154 Mich 5
Fox’s Will, In re, 52 N.

530 98

Frame v. Thorman, 102 Wis. 653 487
Francis v. Marsh, 54 W. Va. 545 478
Francis’ Estate, Tn ne 94 Nebr. 742 505
Frank v. Frank, 120 Tenn. 569 176, 1132
Franke v. Auerbach, 72 Md. 580 375, 382

Franken heiticr, In re, 130 App. Div.
(N. Y.) 454 432
Franklin’ v. Belt, 130 Ga. 530
v. Boone, 38 "Tex, C4, “hoo. 597 530
v. Franklin, 91 Tenn. 169

Bans Admx. v. Philadelphia, 13
Pa. Co. Ct. 241 272
Franks v. Chapman, 60 Tex. a 491
Frasier v. Littleton, 100 Va. 392
Frazer v. Frazer, 24 Ky. L. 3517 241

ve Waves Circuit Judge, 39 Mich.

198 493
Frazer, In re, 92 N. Y. 239 217
Frazer's Case, 92 N. ¥. 239 14
Frazier v. Boggs, 37 Fla. 307 41, 47

v. Patterson, 243 Ill. 80 28, "470
Frear v. Williams, 7 a cheat 550 465

Freeman v. Cook, 41 N. Car. 373 415
v. Easly, 117 Ill, 317 83, 523
v. Flood, 16 Ga. a 297
v. Freeman, 141 N. 251

v. Aellees. 4 Redf. poets "MN Y.)

416

v. Prendergast, 94 Ga. 369 365, 372
Freeman, In re, 146 Iowa 38 309
Freeman’s Estate, In re, 220 Pa. 343 797

Freeman’s Estate, In re, 40 Pa. Super.
Ct. 3 181
Frelinghuysen _v. New York L. Ins.
&e. c , 31 R. I. 150 463
Freme’s Estate, In re, 2 Ch. 778 142
French v. Frazier, 7 J. J. Marsh. (Ky.) i

92

v. French, 14 W. MBs yee 26
v. Hatch, 28 N. H. 233
v. Mehan, 56 Pa. st 86 7
Fretwell v. McLemore, 52 Ala. 124 2
Frew v. Clarke, 80 Pa. St. 170 488
Frey v. Thompson, 66 Ala. 287 235

ee In re, 20 App. Div. (N. Y.)
Friend’s Estate, In re, 209 Pa. i!

Frierson v. Beall, 7 Ga. 438 153
Frisby v. Withers, 61 Tex. ee 370
Fritz v. Turner, 46 N. Ts 515 442
Fronty v. Godard, 1 Bailey Eq. (S.
ar.) 517 Bias a20
Frost v. Atwood, 73 Mich. 392
v. Blackwell, 82 N. J. Ea. 184 281, 282
v. Courtis, 167 Mass. 251 191
v. Frost, 63 Maine 399 357
v. McCaulley, 7 Del. Ch. 162 358
Frothingham, In re, 75 N, a Eq. 205 460

ay v. Morrison, 159 Ill. 32
Shipley, 94 Tenn. 352 208, 2

Fry’: S Estate, In re, 163 Pa. St. 30

bene v. Perry County, 145 Mo.

432
Fulgham v. Strickland, 123 Ga. 258 ss
191, 193
Fullenwider v. Watson, 113 Ind. 18
Fuller v. Fuller, 83 Ky. 345 528

v. Fuller, 84° nteine. "475 234

v. Fuller, 58 N. Car. 223 253

v. Martin, 96 Ky. 500 177

v. Wilbur, 170 Mass. 506 00
Fuller, Ex parte, 2 Story (U. S.) 327. 494
Fullerton v. Jackson, 5 Johns. Ch, (N.

Y.) 278 412

 

Funk v. Eggleston, 92 Ill, 515 234
Furenes v. Severtson, 102 Iowa 322 169
Furness v. Fox, 1 Cush. (Mass.) 134 254
G
Gable v. Daub, 40 Pa. St. 217 57
Gadd v. Stoner, 113 Mich, 689 826
Gaffield v. Plumber, 175 Ill. 521 368
Gage v. Gage, 12 N. H. 371 150
v. Gage, 29 N. H. ie 103
Gaines v. Fuentes, 92 U. 522
v. Hennen, 24 How. G, ee 553 504
v. Lizardi, 154 U. S. 555 462
Gaither v. Gaither, 3 Md. Ch. 158 342
Gale v. Bennett, Ambler 681 176
v. Corey, 112 Ind. 39 2
v. Drake, 51 N. H. 78 220
v. Gale, 21 Beav. 349 60
Gallagher v. McKeague, 125 Wis. 116
204, 214
Gallaher v. Herbert, 117 Ill. 160 323
Galland’s Estate, In re, 92 Cal. 293 420
Gallison v. Quinn, 183 Mass. 241 232
Gallon v. Haas, 67 Kans, 225 65, 532
Galloway ve Carter, 100 N. Car. 111
252, 258
v. Darby, 105 Ark. 558 234, 306, 308
v. Durham, 118 Ky. 544 858
v. Galloway, 32 App. Cas. (D. C.)
76 214
Gamble v. Butchee, 87 Tex. 643 107, 448
Gamble, In re, 13 Ont. L. 299 308
Gandolfo v. Walker, is Ohio St. 251 419
Gannon vy. Albright, 183 Mo. 238 234
v. Pauk, 200 Mo. 75 833
bas Peterson, 193 Ill. 372 Hab, 1195
Garcelon’s Estate, In re, 104 Cal.
100, 519
Gardenhire v. Hinds, 1 Head (Tenn.)
402 357
Gardenville Permanent L. Assn. v.
Walker, 52 Md. 452 324
Gardiner v. Gardiner, 65 N. H. ait
465
Gardner v. Gardner, iy Pa. St. 218 464
v. Viall, 36 R. I. 182
Gat sche v. Levering ts Co., 146 Mo. 4
42
Garibaldi vy. Hollowell, 68 N. Car. 251 392
Garland v. Garland, 73 Maine 97 231, 891
v. Garland, 87 Va. 758 348
v. Harrison, 8 Leigh. en 368 2
v. Smiley, 51 N. J. E 06
v. Smith, 164 Mo. 366
Garland’s Will, In re, 160 N. Car. 555 10
Garman v. Glass, 197 Pa. 101 143
Garraud, In re, 35 Cal. 336 103
Garret v. Rex, 6 Watts (Pa.) 14 222
Garrity’s Estate, In re, 108 Cal. 463 400
Garth v. Meyrick, 1 Bro. Ch. 30 141
Garvey v. Horgan, 38 Misc. (N. Y.)
164 42
v. Union eet Co., 29 App. Div.
(N. 513 359
Gass v. Withite 2 —_ (i) 170 357
Gaster v. Gaster, 92 Nebr. 63
Gates v. Cole, 137 Iowa 613 84
v. Seibert, 157 Mo. 254 191, 250
Gaude v. Baudoin, 6 La. 722 478
Gaven v. Allen, 100 Mo. 293 506
Gavitt v. Moulton, 119 Wis. 35 464
Gay v. Gay, 84 Ala. 38 467
v. Gillilan, 92 Mo. 250 530
v. Grant, 101 N. Car. 206 368
v. Minot, 3 Cush. (Maes) 352 496
Geale’s Goods, In re, 3 S. & T. 430 85
. TABLE OF CASES

[References are to Sections.]

Gebbie’s Estate, In re, 9 Pa. Dist. 56
Seats .v. Riesenberg, 116 Mo. App.

Ge v. Worth, 17 Ohio a 564
Gelbach v. Shivel ly, 67 Md. 498

Gelbke v. Gelbke, 88 Ala. 427

Geofroy v. Riggs, 133 U. S_ 258

George Weg VSEIOE 15 B. Mon. (Ky.)

v. George, 47 N. H. 27 281, 494,
v. Greer, 53 Miss. 495
Gerard v. Buckley, 137 Mass. 475
Gerbrich v. Freitag, 213 Ill. 552
German-American State Bank v. God-
man, 83 Wash. 231
Gernert v. Albert, 160 Pa. St. 95
Gerrish v. Gerrish, 8 Ore. 351
Gfroerer v. Gfroerer, 173 Ind. 424
Gibbens v. Gibbens, 140 Mass. 102
Gibbon v. Gibbon, 40 Ga. 562
Gibbons, In re, 234 Pa. 37
Gibney v. Allen, 156 Mich. 301
Gibson Me ioe (Ind. App.), 110 N.

v. Dooley, 32 La. Ann. 959 108,
v. Gibson, 93 S. Car. 385
Vv. Gibson, Walk (Miss.) 364
v. Nelson, 181 Ill. 122
v. Seymour, 102 Ind. 485
Gibson’s Estate, In re, 75.Cal. 329
Gibson’s Will, In re, 28 App. Div. (N.

Y.) 769
Giddings v. Giddings, 65 Conn. 149
,
v. Gillingham, 108 Maine 512 = 188,
v. Turgeon, 58 Vt.
Gilbert v. Gilbert, 127 Iowa 568
v. Knox, 52 N. Y. 125
v. Welsch, 75 Ind. 557
Gilbert’s ‘Appeal, 85 Pa. St. 347
oe - Estate, In re, 2 Con. Surr.

¢ ) 390
Gilbreath v. Alban, 10 Ohio 64
Gilchrist v. Corliss, 155 Mich. 126
Giles v. Anslow, 128 Ill. 187 235, 339,
v. Little, 104 U. S. 291 207;
Gilham, In re, 64 N. J. Eq. 715
Gilkey v. Hamilton, 22 Mich. 283
Gill v. Grand Tower Mining &c. Co., 92
Ill. 249
Gillett v. Gaffney, 3 Colo. 351
v. Gillett, 109 Ill. HDP: 75
Gillis v. Gillis, 96 Ga.
Gilman v. Bell, 99 Ill. 144
v. Gilman, 52 Maine 165
v. Gilman, 54 Maine 453
v. Healy, 55 Maine 120
Gilmer v. Gilmer, 42 Ala. 9
Gilmore v. Hayworth, 26 Tex. 89
Gilmore’s Estate, In re, 81 Cal. 240 65,
Gilmor’s Estate, In re, 154 ee Hes

Gilpatrick v. Glidden, 81 Maine 137
Gilpin v. Williams, 17 Ohio St. 396
Gtey v. Richards, 26 Tex. Civ. App.

Gilruth v. Gilruth, 40 Iowa 346

498,

5
Gindrat v. Western R. Co., 96 Ala, 162

Gingrich v. Gingrich, 146’ Ind.

Ginter v. Ginter, 79 Kans. 721

Girard v. Futterer, 83 Ala. 234
Gittings v. McDermott, 2 Myl. & K. 69
Given v. Hilton, 95 U. S. ae =

Givens v. Ott, 222 Mo.

227
2

2

Gladding v. St. Matthew's * checks 25
I. 628 3

222

49
320
140
463
610

 

Glancy v. Glancy, 17 Ohio St. 134 534
Glascott v. Bragg, 111 Wis. 605 105, 466
Glass v. Dunn, 17 Ohio St. 413 325

v. Hulbert, 102 Mass. 24 342
Glasscock v. Tate, 107 Tenn. 486 235
Glass’ Estate, In re, 164 Cal. 765 95
Glenn v. Glenn, 21 S. Car. 308 374

v. Spry, 5 Md. 110 323
Glore v. Scroggins, 124 Ga, 922 237
Glover v. Condell, 163 Ill. 566 242, 244

v. Stillson, 56 Conn, 315 236
Goddard v. Brown, 12 R. I. 31 378, 381

Godfrey v. Humphrey, 18 Pick. (Mass.)
537 2

34
v. Phillips, 209 Ill. 584 448
v. Smith, 73 Nebr. 756 22, 503
Godman v. Simmons, 113 Mo. 122 244
Godshalk v. Akey, 109 Mich. 350 233
Godwin v. Godwin, 129 Ga. 67 487
Goebel v. Wolf, 113 N. Y. 405
251, 255, 306
Goerke v. Goerke, 80 Wis. 516 155
Going v. Emery, 16 Pick. (Mass.) 107
368, 380
Golder v. Chandler, 87 Maine ue
» 221, 322
Goldsmith v. Petersen, 159 os 692 296
Goldstein v. Hammell, 236 Pa. 305 240
Goldthorp, In re, 115 Iowa 430 103, 431
Goldtree v. Thompson, 79 Cal. 613 266, 346
Gomez v. Higgins, 130 Ala. 493 150
Goodell v. Pike, 40 Vt. 319 80, 509
Goodlett v. Kelly, 74 Ala. 213 5
Goodloe v. Goodloe, 116 Tenn, 252 33
Goodman vy. Winter, 64 Ala. 410 485, 491
Goodrich v. Ferris, 145 Fed. 844 493
v. Lambert, 10 ‘Conn. 448 244
Goodrich’s Appeal, 57 Conn. 282 188
Good Samaritan Hospital v. Mississippi
Valley Trust Co., 137 Mo. App. 179 420
Goodsell’s Appeal, 35 Conn. 171 467
Goods of Gosling, In re, 55 L. J. P. 27 461
Goose of Seaman, In re (1891), Prob. ws
Good’s Succession, 45 La. Ann. 1392 154
Sadie v.. Meredith, 2 Maule & Sel. aie
Gondwin v. Coddington, 154 N. Y. 283
32, 463
McDonald, 153 Mass. 481 284
Gordes v. Burris, 153 Mo. 223 530
v. Gordon, 1 Meriv. 141 106
Vv. Jackson, 58 N. J. Eq. 166 245, 309
v. Old, 52 N. des a oe 509
ve West, 8 N. 414
Ve Whitlock, 92 on 123 151, 461, 462
Gordon, In re, 50 N. J. Eq. 397 487, 506
Gore v. Clark, 37 S. Car. 537 106, 108
Gorham v. Dodge, 122 Ill. 528 287
Gorkow’s Estate, In re, 20 Wash. 563 529
Gormley’s Estate, In re, 154 Pa. St. 378 176
Goslee v. Goslee, 29 Ky L. 654 351
Goss v. Withers, 153 Ky. 5 237
Gough v. Manning, 26 Md. 347 288
Gould v. Mansfield, 103 Mass. 408
28, 33, 470
v. piace 104 Mass. 283 371
v. Safford, 39 Vt. 498 503
Gould, In re, 72 Vt. 316 477

475,

Gourley v. Linsenbigler, 51 Pa. St. 345 3
Gourley’s Estate, In re, 238 Pa. 62
Grace v. Perry, 197 Mo. 550
Grady v. Hughes, 64 Mich. 540 516
Graeff v. De Turk, 44 Pa. St. ee 366, 375
Graham v. Allison, 24 Mo. . 516 221

v. Burch, 47 Minn. 171

v. De Yampert, 106 Ala. 279

57, 136, 169, 206
liv

TABLE OF CASES

[References are to Sections.]

Graham
v. Edwards, 162 Ky. 7 444
v. Graham, 67 Hun Nr 20 329 6
v. Gear a a ze 210
v. Kin 373
Graham’s es In aS 198 Pa, 216 965

Grand Prairie Seminary v. Morgan, 171
- Ill. 444 188
Granger v. Granger, 147 Ind. 95 236

Granfield, In re, 79 Misc. (N. Y.) 374 a

Granniss’ Estate, In re, 142 Cal. 1

Grant v. Bradstreet, 87 Maine 583 342
v. rants Pa | ae ), 2 33
v. Mose enn. pp.

” 50 * "285, 310
v. Saunders, 121 Iowa 80 871
v. Spann, 34 Miss. 294 a

Graves v. Mitchell, 90 Wis.
Graves’ Estate, In re, 242 il 612 2575, a

Gray v. Bailey, 42 Ind. 349
v. Corbit, 4 Del. Ch. 135 356
v. Gray, 60 N. H. 28 494, 497
v. Kauffman, 82 Tex. 65 96
v. Parks, 94" ery 7a 491, ey
v. Pash, 24 Ky. L. 192
Graydon v. Graydon, 33 . J. Eq. 229
288, 289
Gray, Estate of, 88 Nebr. 835 533
Gray’s Estate, In re, 159 Cal. 159 65
Gray’s Estate, In re, 147 Pa. St. 67 313
Greason v. Keteltas, 17 N. Y. 491 378
Green v. Alden, 92 Maine 177 41
v. Crain, 12 Gratt. (Va.) 252 451
v. Crapo, 181 Mass. 349
v. Gordon, 38 App. D e 443 235
v. Green, 125 N. Y. 350
v. Green, 19 R. I. ae 390
v. Hewitt, 97 Ill. 113 207
v. Huntington a eos 106 171
v. Lane, 45 N.C 32
v. Smith, 17 R. ra “ea he
v. Speer, 37 Ala. 532
v. Winter, 1 Johns. Ch. (N. Y.) 26 307
Greene v. Dennis, 6 Conn. 293 99, 186
v.. Greene, 145 Ill. 264 33; 450
v. Huntington, 73 Conn. 106 432

Greenheld v. Morrison, 21 Iowa 538 79
Greenland Church &c. Soc. v. Hatch, 48

N. H. 393 189
Greenough v. Greenough, 11 Pa. St. 489

50, 443

v. Welles, 10 Cush. a 571 7

Green’s Appeal, 42 Pa. St. 25 178

Greenwood v. Murray, Y Minn. 259 508
Greer v. Wilson, 108 Ind. 322 235
Gregg v. McMillan, 54 S. Car. 378 469
Grege’s Estate, In re, 213 Pa. 260 100

Gregory v. Oates, 92 Ky. 532 50

v. Welch, 90 Ark, 152 252
Gregory’s Estate, In re, 15 Misc. (N.
Y.) 407 67

Grey s Trusts, In re, L. R. (1892) 3 Ch.

76
Gridley v. Wynant, 23 How. (U. S.)

500 350
Grieves v. Rawley, 10 Hare 63 177, 178
Griffin v. Nicholas, 224 Mo. 275 237, 357
Griffith v. Derringer, 5 Har. (Del.)

284 244
Griffith, 59 Fla. 512 62
ilcabs Vis Cocke, 85 Ky. 314 416
Grimm v. Tittman, 113 Mo. 56

107, 448, 451

Grimmer v. Friederich, 164 Ill. 245
252, 254
Grim’s Appeal, 109 Pa. St. 391 359
Griswold v. Heard, 2 Gray (Mass.) 322 394
yv. Johnson, 5 Conn. 363 240

 

Griswold, In re, 42 Misc. ee a" 230 136

Groom, In re, L. J. Ch.

Gross v. Burneston, 51 Md. 7733 499
v. Sheeler, 7 Houst. (Del.) 280 244, 323

Grossman, In re, 73 Ill. App. 224 22

Grotenkemper v. Bryson, 79 Ky. 353 398
Grubbs v. McDonald, 91 Pa. St. 236 440
Grubb’s Estate, In re, 174 Pa. St. 187 151
Gruendike’s Estate, In re, 154 Cal. 628 172
Gruenewald v. Nue, 215 Ill. 132 171
Grymes v. Hone, 49 N. Y. 23 3
Guerard v. Guerard, 73 Ga. 506 49
Guild v. Allen, 28 R. I. 430 189
Guilfoyle, In re, 96 Cal. 598 442
Guinasso’s Estate, In re, 13 Cal. App.
518 505
Guitar v. Gordon, 17 Mo. 408 431
Gump v. Gowans, 226 Ill. 635 499
Gunn v. Brown, 63 Md. 96 297
Gunnings’ Estate, In re, 234 Pa. 139 289
Gunter v. Gunter, 48 N. Car. 441 448

Gupton v. Gupton, 47 Mo. 37 33
Gutman v. Buckler, 69 Md. 7
Guy v. Mayes, 235 Mo. 390

Gwin v. Gwin, 51 Idaho 271 83

H
Haas v. Atkinson, 9 Mackey (D. C.)
Hacker v. Hacker, 153 App. Div. (N.
Y.) 270

:)
Hackett v. Hackett, 67 N. H. 424
Hadley v. Hadley, 147 Ind. 423

v. Simmons (N. J. Eq.}, 49 Atl.

Hagen v. Sacrison, 19 N. Dak. 160

269, 271
Haggerty v. Lanterman, 30 N. J. Eq. 37
Hague v. Ahrens, 53 Fed. 58 283
Haight, In re, 51 App. Div. (N. Y.)

10
Haight, In re, 63 Misc. (N. Y.) 624
Hainer v. Iowa Legion of Honor, 78
Iowa 245 61

Haines v. Allen, 78 Ind. 100 878

v. Christie, 28 Colo. 502 194

Hair v. Caldwell, 109 Tenn. 148 81
Hairston v. Hairston, 30 Miss. 276

462, 525, 534

Hale v. Green, 2 Rolle Abr. 261 378

v. Hale, 146 Ill. 227 351, 352

v. Hale, 137 Mass. 168 368

v. Hobson, 167 Mass. 397 250

v. St. Paul, 54 Minn. 521 325

Haley v. Boston, 108 Mass. 576 169

v. Gatewood, 74 Tex. 281 65, 206, 207

v. Palmer, 107 Maine 311 351, 353

Hall v. Coggswell, 183 Mass. 521 836

v. David, 67 Ga. 72 253

v. Getman, 121 Mo. App. 630 33

v. Hall, 38 Ala. 131 498

v. Hall, # Als. 290 498, 508

v. Hall, L. (1892) 1 Ch. 361 209

v. Hall, 123 es 120 269, 273

v. Hall, 81 N. Y. 130 96

v. Hancock, 15 Pick. {Mazs.) 255 176

v. Hill, 6 Ta. Ann. 745 152

ve Holloway, 58 Conn. 210 349

v. Priest, 6 Gray eee) 18 241

v. Smith, 61 N. 240, 307

v. Stephens, 65 Io. "370 168, 180

v. Turner, 110 N. Car. 292 235

v. Wiggin, 67 N. H. 89 181

Hallett v. Allen, 13 Ala, 554 396

Hall’s Estate, In re, 70 Vt. 458 414

Hall’s Succession, 28 La. Ann. 57 448
Hallyburton v. Carson, 86 N, Car. 290
TABLE OF CASES

lv

[References are to Sections.]

Halsey v. Gee, 79 Miss. ae 838
v. Goddard, 86 Fed. 281
v. Patterson, 37 z is 4 445 171, 221

Ham v. Ham, 58 N. 418

v. Twombly, 181 Mace 170 342
Hamilton v. Crowe, 175 Mo. 634 464, 533
v. Downs, 33 Conn. 211 337, 353
v. Flinn, 21 Tex. pie 50
v. Jacobs, 4 Ohio C. 398
v. Serra, 6 Mackey. &, oo 168 215
v. Smith, 110 N. 324
Vv. Thirston, 93 id. ay : “33
“Hamilton’s Estate, In re, 120. Cal. 421 495
Hamilton’s Estate, In re, 74 Pa. St. 69
62, 501
Hamilton’s Succession, 3° La. Ann. 640 108
Hamlet v. Johnson, 26 Ala. 557 308
Hamlin v. Mansfield, 88 Maine 131 435
Ve Dsgced: 1 Redf. Surr. (N. Y.) ‘
409
. Hammel v. Palmer, 12 Ohio C. C. 184 212
Hammell v. Swan, 61 N. J. Eq. 179 219
Hammett v. Hammett, 43 Md. 307 285
Hammond v. Croxton, 162 Ind. 353
366, 368
v. Hammond, 55 Md. 575 895
Hampton v. Holman, 5 Ch, Ue 183 268
Hancock v. Lyon, 67 N. H. 215
Handley v. Palmer, 91 Fed. je 42, 98
v. Palmer, 103 Fed. 39 49
v. Wri htson, 60 Md. 198 181
Handley, In re, 208 Pa. 388 211
Handy’s Estate, In re, 167 Pa. St. 552 348
Hankins v. Kimball, 57 Ind. 42 414
Hanna v. Ladewig, 73 Tex. 37 374
Hannah v. Anderson, 125 Ga. 407 531
Hannon v. Hounihan, 85 Va. 429 96
v. Southern Pac. R. Co., 12 Cal.
App. 350 2
Hannum v. Day, 105 Mass. 33 418
Hans v. Holler, 165 Mo. 47 491, 521
Hansen’s Estate, In re, 87 Nebr. 567 502
Hanson v. Hanson, 81 Kans. 305 63, 81

v. Little Sisters of the Poor, 79 Md. .
4

434
Hanvy v. Moore, 140 Ga. 691 241
ciaugoce v. Houghton, 10 Pick. Mas
4

Haraden v. Larrabee, 113 Mass. 430 17
Harberger’s Appeal, 98 a a 29 416
Harbison v. James, 90 Mo. 367
Hard v. Ashley, 117 N. Y. 60 iz 142, 463
Hardage v. Stroope, 58 Ark. 3 244
Hardenburgh v. Ray, 151 U. 3 112 57
Hardesty’s Succession, 22 La. Ann. 332 95

Harding v. Harding, 174 ee 268 ‘
v. Schapiro, 120 Md. 541
Hardman v. Johnson, 3 Mer. 347 208

Hargraves v. Lott, 67 Ga.. 133 95
Hargroves v. Redd, 43 Ga. 142 50, 95
Haring v. Shelton, 103 Tex. 10 235, 288
Harker v. Harker, 3 Harr. (Del.) 51 81
v. Reilly, 4 Del. Ch. 72 376
v. Smith, 41 Ohio St. 236 1117
Harkins v. Hugh es, 60 Ala. 316 392, 393
Harkness v. Lisle, 132 Ky. 767 296
Harman’s Estate, In re, 135 ae St. 441 169
Harmon v. Smith, 38 Fed. 482 324
Harp v. Adams, 142 Ga. 5 22
v. Parr, 168 Ill. 459
oy 107, 445, 448, a
v. Wallin, 93 Ga. 237

Harper v. Anderson, ba N. Car. 89 212
v. Harper, 148 N. Car. EP 25, 207
Harrall v. Wallis, 37 N. J. E 48

458
Harrell v. Hagan, 147 N. on ‘411 173, 834
Harriman v. Harriman, 59 N. H. 135 167
Harrington v, Pier, 105 Wis. “485 313

 

Harrington
v. Stees, 82 Ill. 50 454

Harris v. Dainley, 22 e Pa 633 233, 702
v. Douglas, 64 i 486
v. Dyer, 18 R. ap 286
v. Harris, 36 Bar ae Y.) 88 504
vy. Harris, 82 Vt. 251, 940
v. Hays, 53 Mo. so 534
v. Judd, 3 Hawaii 421 356
v. Keasbey yi J. Fv), 53 Atl 555 187
v. Pue, 39 Md. 535 - 200, 500
v. Tisereau, 52. Ga. 153 491, 504
v.. Wright, ue ‘N. Car. 422 281, 295

Harrison v. Brophy, 59 pare: 1 = 232, 296
v. Denny, 113 Md. 509 352°
v. Foote, 9 Tex. Civ. App. 576 236, 293
v. Harrison, 105 Ga. 517 235, 281, 282
v. Nixon, 9’ Pet, (U. S.) 483 41, 45, 2
v. Rowan, Fed. Cas. No. 6141
ve Stanton, 146 Ind. 366 si
v. Stockton, 19 N. J. Eq. 235 354
v. Weatherly, 180 Til. 418 47

Harrison’s Appeal, In re, 48 Conn. 202 500
Harrison’s Estate, In re, 12 Pa. County
Ct. 388 400

Hart v. Chesley, 18 i H. 373 293
v. Rust, 46 Tex. 556 418
v. Seymour, 147 Ill. 598 265, 271
v. West, 16 Tex. ser App. 395 460
v. White, 26 Vt. 207
v. Young, 3 Ji a0 Marsh. (Ky.) a

Hartman v. aurmsttane: | 59 Kans, 696 339

Hartnett v. Wandell, 60 N. Y. 346 410

Hartson v. Elden, 50 N. J. Pa = 51, 270

Hartwell v. Martin, 71 N. J. Eq. 157 9 152
v. Parks, 240 Mo. 537 486
v. Tefft, 19 R. I. 644 105, 173

Hartwig v. Schiefer, 147 Ind. 61

Harvard College v. Balch, 171 th, 275 64

Harvey v. Smith, 1 Dev. & B. L. (N.
Car.) 186 496
v. Von Cott, 71 Hun (N. ae 394 9221
Harvy v. Chouteau, 14 Mo. 587
152, 478, 480
Harwell v. Lively, 30 Ga. 315 475, 476
Hascoll v. King, 162 N. Y. 134 346
Haseltine v. Shepherd, 99 Maine 495 9810
Haselwood v. Webster, 82 Ky. 409 434
Hastings v. Earp, 62 N. Car. 5 313
Haszard v. Haszard, 19 R. I. 374 312
Hatch v. Atkinson, 56 Moe 324 3
v. Ferguson, 57 Fed. 65
Hatchett v. Hatchett, 103 Pits 556
366, 375
Hathway’s Appeal, 46 Mich. 326 492
Hattersley v. issett, 52 N. J. Eq. 693 392

Haubrich v. Haubrich, 118 Minn. 394 33

Hauenstein v. Lynham, 100 U. S. 483 610
Haug v. Schumacher, 166 N. Y. 506 368
Haven v. Foster, 14 Pick. (Mass.) 534 479
v. Haven, 181 Mass. 573 774
Havens v. Haverts, 1 Sandf. Ch. (N.
Y.) 324 58
v. Sackett, 15 N. Y. 287
v. Seashore Land Co. is oy N. J. Ea. is
Haviland v. Haviland, 130 Iowa 611 255
Haviland, In re, 19 N.Y. St. 524 138
Haviland, In re, 17 Mise’ (N. Y.) 193 440
Hawaiian sauce Co. v. Van Holt, 216
U. S. 367 347
Hawes v. Kepley, 28 Ind. App. 306 194
v. Nicholas, 72 Tex ‘oan 476
Hawke v. Enyart, 30 ‘Neb,
288. "288, “104, 478, 479

v. Lodge, 9 Dei. Ch. 284
Hawkes v. Slight, 110 wis, 125 321
lvi

TABLE OF CASES

references are to Sections.]

Hawkins v. Bohling, 168 Ill. 214 250
v. Garland, 76 Va. 149 723
v. Grimes, "13 B. Mon. (Ky.) 257 526
v. Hansen, 92 Kans. 73 , 280, 282
v. Hawkins, 54 Iowa 443 107

Hawley v. Brown, 1 Root (Conn) 494 448

Hawthorn v. Ulrich, 207 Ill. 375

Hayden’s Estate, In re, 149 Ca 680 498

Hayes v. Hall, 188 Mass. 510 415
v. Hayes, 242 Mo. 155 10, 339
v. Hayes, 45 N. J. Eq. 461 220

v. Sykes, 120 Ind. 180 327
v. Tabor, 41 N. H. 521 253, 343
Hayne v. Irvine, 25 S. Car, 289
Haynes v. Haynes, = ae St. 598
495, 504, 516,
Hays v. Bowdoin, 159 ae
s18, 23, 524,
v. Seadey, 69 N. H. 308
Hayward v. Loper, 147 Ill. 41 184, 434
v. Rowe, 190 Mass.1 59, 351, 358, 967
v. Spaulding, 75 N. H. $2 419, 860
Haywood v. Wright, 152 N. Car. 421

338, 341

Hazard v. Gushee, 35 R. I. 438 56
Hazelett v. Farthing, 94 Ky. 421 62
Heald v. Heald, 56 Md. apo 268, 308
Healey v. Bartlett, 73 N. 110 450
Healy v. a © 5 App. Div. Gs YJ ”
v. Hels, 70 Conn. 467 1196

v. Reed, 153 Mass. 197 78

Heard v. Read, 169 Mass. 216 “4

Heaston v. Kreig, 167 Ind. 101

Heath v. McLaughlin, 115 N. Car. ee 398

Hebberd v. Lese, 107 App. Div. (N. Y. way
87

425

Hebert v. Winn, 24 La, Ann. 385
Heermans v. Robertson, 64 N. Y. 332 392
Hegarty’s Appeal, In re, 75 Pa. St. 503 494
Hegney v. Head, 126 Mo. 619 526
Heidenheimer v. Bauman, 84 Tex. 174

340, 352, 440
Heidlebaugh v. Wagner, is Iowa 601 ° 154
Heisen 7. Ellis, 247 Til. 251

Heiskell v. Chickasaw, 37 a 668 188
Heisler v. Sharp, 44 _N. a Eq. 167 381
aes v. Markland, Rawle (Pa.) Bhs
Hellier v. Hellier, 9 P. D. ee 462
Helling, In re, 84 Misc. (N. Y.) 684 194
Hellwig v. Bachman, 26 Ill. App. 165 239

Helm v. Leggett, 66 Ark. 23 288
Hemenway v. Hemenway, 171 Mass. 40
Hemhauser v. Decker, 38 N. J. Eq. 426 380
Hemingway v. Hemingway, 22 Conn.

59
Heminway v. Reynolds, 98 Wis. 501 493
Hemphill v. Moody, 62 Ala. 510 463

v. Pry, 183 Pa. St. 593 393
Henpailllg Estate, In ve, 180 Pa, St. ,
34

Henderson v. Adams, 15 Uisk 30 343
v. Blackburn, 104 IIL. 368, 808

v. Clark, 27 Miss. ee 2

v. Harness, 176 Ill. 302 292

v. Henderson, 113, N. Y. 1 378
v. Ryan, 27 Tex. 670 50
Henderson, In re, 161 Cal. 353 191
Hlenderens Trust Co. v. Stuart, 108 Ky. 04

4

Hennessy v. Woulfe, 49 La. Ann, 1376 23
Henry v. Griffis, 89 Iowa 543 324
v. Hall, 106 Ala. 84 63

v. Henry, 81 Ky. 342
v. Pittsburgh ls Mfg. Co., 80
Fed. 485 236

 

Henry

v. Thomas, 118 Ind. 23 195
Henry, Ex parte, 24 Ala. 638 446
Hengic vy. Henzie, 45 Tex. Civ. App. 43%
Herber’s Succession, 128 La. 111 41

Herbert v. Berrier, 81 Ind. 1
440, 443 447, 525

Herdlitchka v. Foss, 2 Nebr. (Unof.)
428 682

Hernandes v. Thomas, 50 Fla. 522 412

Herrick v. Fowler, 108 Tenn. 410 374

Herring v. Ricketts, 101 Ala. 342 495, a
Herring, In_re, 152 N. re 258
Herriott v. oe 155 N. 5 1130
Hersee v. Simpson, 154 N. ¥. 496 254, 255
Hersey v. Purington, 96 Maine 166

255, 252

Hershey v. Meeker County Bank, 71
inn, 255 366
Herzog v. Title Guarantee &c. Co., 177
N. Y. 86 141, 142, aels
Hesketh v. Murphy, 36 me Eq. 3
Heslop v. Gatton, 71 Ill. 528 321
Hess’ Appeal, In’ re, 43 Pa. St. 73
Hess’ Will, In re, 48 Minn, 504 63
Hesterberg v. Clark, 166 Ill. 241 452,
Heuser v. Harris, 42 Ill. 425 72
Hewes v. Dehon, 3 Gray (Mass.) 205
v. Preston, 4 B. Mon. (Ky.) 152
Heyer v. Kranch, 52 Pa., Super. Ct, 635
Heywood’s Estate, In re, 148 Cal. 184
Hiatt v. McColley, 171 Ind. 91 499
Hibb’s Estate, In re, 143 Pa. St. 217
Hibler v. Hibler, 104 Mich. 274
140, 306,

Hickman’s Estate, In rey ie Cal. 609
Hicks v. a ae Ga. 176
v. Ward, 107 N. ie 302 374
Hiestand v. ieee: 150 Pa. St. 501 154

Spi nbedigae v. Higginbotham, 106 Ala.
530

Higgins v. Carlton, 28 Md. 115 499
v. Dwen, 100 Ti. 554 212
v. Eaton, 178 Fed. 153 522

Vv. Eaton, 183 Fed. 388 42
v. Eaton, 188 Fed. 938 41, 42
Higgins, In re, 15 Mont. 474 411
Hig; ins’ Estate, In re, 156 Cal. 257 533
Hig ’s Estate, In re, 136 Pa. St. eo 253
Hill v. BuEerty 10 How. Pr. GN. ¥)

500

v. Clark, 4 Lea (Tenn.) 405 369

v. Crook, Jw R, 6 He L. 265 106

v. Dade, 68 Ark. 409 - 351

v. Den, 54 Cal. 6 287, 380, 392

v. Felton, 47 Ga. 455 203

v. Harding, 92 Ky. 76 28, 470

v. Hill, 90 Nebr. 43 343, 358

v. Jones, 65 Ala. 214 376

v. McRae, 27 Ala. a 356

v. Page (Tenn.), 36 S. W. 735 336

v. Peoples, 80 ‘Ark. 15 418

Hillen v. Iselin, 144 N. Y. 365 174, 376

Hills v. Putnam, 152 Mass, 123 349

v. Simonds, 125 Mass. 536 190, 192

Hill’s Estate, In re, 102-Mo. App. 617 410

Hill’s Succession, 47 La. Ann. 329 461

Hillyard y. Miller, 10 Pa. St. 326 265

Hilpire v. Claude,” 109 Towa 159 105, 467
He v. Hilton, 2 McArthur (D. Cc)

207

Hinckley v. Primm, 41 Til. App. 579 2u

ey Ny Luana, Ve gis be (C L 186
inckley, In re

Hines a Hines, 95. N. Ce fs po ue 393
Hinson v. Booth, 39 Fla. 333 62
TABLE OF CASES

[References are to Sections.]

Hinton v. Hinton, 68 N. Car. 99

Htireeh, In re, 116 App. Div. (N. Y.)
36

Hirst’s Estate, In re, 12 W. N. Cas.
(Pa.) 323

Hite v. Hite, 93 Ky. 257 345,
v. Hite, 133 Ky. 554
Hite’s Estate, In re ant oe 436
Hittell, In_re, 141
Hixon v. West, 83 Gr 786
Hoadly v. Wood, 71 Conn, 452
180, 192, 284,
Hoagland v. Beckley, 158 Mich. 565
Hobbins’ eae, In re, 41 Mont 39
Hobbs v. Chesley, 55 N. H.
v. Peyson, 85 Maine ae
v. Smith, 15 Ohio St. 419
EaSHion v. Blackburn, 1 Add. Ecc. 274
Hale, 95 N. Y. 588
Biel v. Lynn, 200 Mo. Pie
Hodges v. Phelps, 65 Vt.
Hodge’s Estate, In re, 63 Ve 661 411,
Hodgin v. Toler, 70 Iowa 21
Hodgman v. Kittredge, 67 N. H. 254

107,
Hodgman’s Estate, In re, 140 N. Y. - Aa

95,
Hodnett, In re, 65 N. J. Eq. 329
Hoffman v. Hoffman, 26 Ala, 535
Hoffman’s Will, In re, 140 App. Div.
(N. Y.) 121
Hoffner’s Estate, In re, 161 Pa. St. 331
Hossa v. Hogan, 3 Dana (Ky.) 572
yman, 2 Ore. 302
High aback v. nee nae Wis. 487
Hoit v. Hoit, 42 N. J. Eq. 388
Hoitt v. Hoitt, 63 N. H. “G75
306, 460, 466,
Hoke v. Herman, 21 Pa. St. 301
Holbrook v. Bentley, 32 Conn. 502
v. Holbrook, 74 N. H. 201
Holcomb v. Gillet, 2 Beer (Conn.) 448
v. Palmer, 106 Maine 17 355,
Holcombe v. Spencer, 82 Conn. 532
Holdefer v. Teifel, 51 Ind. 343
Holden v. Strong, 116 N. Y. 471
Holland v. Couts, 42 Tex. Civ. App.

515 518,
v. Taylor, 111 Ind. 121
Holliday v. Hively, 198 Pa. 335
Holpiepiese Y. Sturgis, 21 La. Ann.

450
v. Wood, 84 N. J. E

Hollister v. Butterworth,” it “Ccbh, ae

8. >
v. Shaw, 46 Conn. 248

Holiday v. alwaey 74 Md. 458

Holman v. Riddle, 8 Ohio St. 384 156,

Heepogs Will, In re, 83 Misc. Mm

)

Holmes v. Holloman, 12 Bis 535

v. Walter, 118 Wis. 409

338, 341, 343, 357, 358,

Holt v. Lamb, 17 Ohio St. 374

v. Pickett, 111 Ala. 362

v. Rice, 54 H. 398

v. Sindry, L. R7 EG: 170
Holt, In re, 56 Minn. 448,
Holtby v. Wilkinson, ae Grant Ch. (U.

C.) 5

0

Holton,v. Cochran, 208 Mo. 314 82.
Holt’s Estate, In re, 146 Cal. 77
Holyoke v. Sipp, 77 Nebr. 394
Home for Incurables v. Maule

383
Home of Aged v. Bantz, 107" Ma. 543°
Homer v. Landis, 92 Md.

-

381

‘Hotchkiss v. "Ladd, 62 ve 209

 

Honaker v. Duff, 101 Va. 675
Honnett v. Williams, 66 Ark, 148

Hood v. gare: 1 McCord (S, ce) ‘

ve i. 98 Ky. 285

v. Dorer, 107 Wis. 149

v. Haden, 82 Va. 588 373, 374, 376,
Hooker v. Montague, 123 N. Car. 154
Hooks v. Barnett, 38 Ala. 607

v. Brown, 125 Ga. 122
Hooper Yq Meluarr, 5 Cold. (Tesny

v. Smith, 88 Md. 577 192, 233,
Hoopes’ Estate, In re, 174 Pa. St. 373
Hoover v. Gregory, 10 Yerg. (Tenn.)

44

Hope v. Brewer, 136 N. Y. 128
Hopf v. State, 72 Tex. 281
Hopkins v. Grimshaw, 165 U. S. 342

270,
v. Keazer, pe Maine ay
v. Lane, 49 Hun an ae 608
v. Smith, 162 Mass.
Hopkins, In re, 102 i. “hiv. (N. ¥.)

ning In re, 32 Hun a oe 618
Hopkins, In re, 172 N.
Hopper’s Estate, In re, 68 ca 80
Hoppe’s Will, In re, 102 Wis. 54
Hoppock v. Tucker, 59 N.Y. 202 191,
Horstmann v. Flege, 172 N. Y. 381
Horton v. Earle, 162 Mass. 448 191,
Horwitz v. Norris, 49 Pa, St. 213
v. Norris, 60 Pa. St. 261
Hiosch Lumber Co. v. Weeks, 123 Ga.
336

Hosea v. Jacobs, 98 Mass. 65
Hoshauer v. Hoshauer, 26 Pa. St. pee

Hoskins v. Arterburn, 7 ae L, 291
Hoss v. Hoss, 140 Ind.

491,
Holtz’s Estate, In re, 38 Pa. St. 422
Houck v. Patterson, 126 yy Car. 885
Hough v. Harvey, 71 Ill.

Mougaten v. Kendall, 7 Aten (Mass.)

aes of Mercy v. Davidson, 90 Tex.

271
12.

280

4
Houston v. Houston, 3 McCord (S. :

Car.) 491
Hovely v. Herrick, 152 Wis. 11
Hovey v. Chase, 52 Maine 304
v. Walbank, 100 Cal. 192

| Howard v. American Peace Soc., 49

7,419,
M. (D.
296,

Maine 288
v. Carpenter, 11 Md. 259
vy. Carusi, MacArthur &
C.) 260

. Carusi, 109 U. S. 725
.» Howard, 30 Ala. 391
+ Howard, 19 Conn. 313
. Hunter, 115 Ga. 357
. Moot, 64 N. Y. 262
v. Trustees, 88 Md. 292
Howard’s Estate, In re, 22 Cal. 395

ass

Howarth v. Mills, L. R. 2 Eq. 389
Howe v. Bemis, 2 ele (Mase) 205
v. Day, 58 N. H.
Gregg, 52 S. eae 53 236,

Vy

v. Hodge, 152 Ill. 252

v. Howe, 152 Ill, 252

v. Watson, 179 Mass. 30

v. Wilson, 91 Mo. 45
Howell v. Ackerolah, 89 Ky. 22
Howe’s Appeal, 126 Pa. St. 233

Howland v. Howland, 11 Gray (Mass.)
469 3
lili

TABLE OF CASES

[References are to Sections.j

Howland
v. Howland, ae Mass. 222 208
v. Slade, 155 Mass. 415 179, 192, 310

Howze v. Davis, 76 Ala. 381

281 ooh Fae 393
Hoysradt v. Kingman, p, a V3 528
Hoyt v. Hoyt, 69 N. H. 320

v. Hoyt, 77 Vt. 244 355
v. Jaques, 129 Mass. 286 379
Hubbard 1 Hubbard, 12 Barb. (N. Y.) 56
v. Hubbard, 198 Til. 621 156
v. Hubbard, 8 N. Y, 196 454

Vv. Hubbard, 7 Ore, 42 63
v. Lloyd, 6 Cush. (60 Mass.) 523 192
ve Worcester Art Museum, 179 Fed.

v. Wigreester Art Museum, 194 Mass.

Huber v. Donoghue, 49 N. J. Eq. 125 358

sa aee Estate, In re, 181 Pa. St. sek
Hackabee v. Swoope, 20 Ala, 491

35, 281

Hudson v. Gray, 58 Miss. 882 308

v. Hudson, 87 Ga. 678 33

Vv. Hudson; 160 Ky. 432 50

v. Hughan, 56 Kans. 152
83, 84, 527, 534

Huff v. Huff, 41 Ga, 696 449

Huggins v. ‘Huggins, a ae 66 433
Huggins, 72 Ga. 195
Hughes v. Allen, 31 Ge, 7783 308, 313
v. Bent, 118 Ky. 6 152, 231
v. Boone, 81 N. Car, ou 520

v. Burriss, 85 Mo. 520

v. Fitzgerald, 78 ee 4 338, 339

v. Hughes, 31 Ala. 519 533

v. Hughes, 37 Ind. 183 467

v. Hughes, 118 Ky. 751 1207

v. Hughes, 14 La. Ann. 85 48

v. Knowlton, 37 Conn. 429 169

v. Nicklas, 70 Md. 484 232

v. Tabb, 78 Va. 313 398
Hughes, In re, 61 Misc. (N. Y.) 207
Hughey v. Sidwell, 18 B. Mon. (Ky.)

Hioptley v. Lanier, 86 Ga. 636 6
Huie v. McConnell, 47 N. Car. 455 448
Huling v. Fenner, 9 R. 1.410 181, 366,
Aol v. Holmes, 78 Conn. 362 286

Hull, 117 Iowa is 451

- Hull? 16 Ohio C. 236
v. Hull, 2 Strob, Eq. cg “Cae 174 106
Hull, In re, 97 App. Div. (N. Y.) 265 231
Hull's Will, In re, 117 Iowa 938° 449
Humble v. Bowman, 47 os J. Ch. ee 374

Humes v. st Serge. & R
(Pa.) 4 66

v. Wood, 8 Pick, (Mass.) 478 137
Humphries v. Settlemeyer, 91 S. Car.

389 106
Hunt v. Booth, 1 Freem. Ch. (Miss.)

215 101

v. Evans, 134 Ill. 496 152

v. Fowler, 121 Ill. 269 870

v. Hawes, 181 Ill. 343 296

v. Hayes, 19 Ohio C. C. 151 322

v. Hunt, 4 Gray io 190 151

ve Hunt, 11 New 339

v. Hunt, 4N. a 150

v. Smith, 58 N. He ae

Hunter v. Bryant 2 Witat Soy. S.) 32 22

v. Bryson, 5 Gill & J. (Md.) 483 2 85
v. Hunter, 17 Barb. Y.) 325
v. Hunter, 58 S. Car. 382 355
v. Stembridge, 12 Ga, 192 339
Huntress v. Place, 137 Mass. 409 177

 

Hunt’s Estate, In re, 133 Pa. St. 260 193
Hunt’s Will, "In re, 122 Wis. 460 533
Hurley v. Hewett, 89 Maine 100 402
v. Rosensteel, 104 Md, 262 194
ae s Estate, In re, 13 Phila. (Fa)
276
Hurry v. Hurry, L. R. 10 pe 346 32
Hurst v. Beach, 5 Madd. 351 141
v. Davidson, 116 Ky. 351 394
Hurt v. Brooks, 89 Vane 496 241
Huse v. Den, 85 St ae 380

Huss, In re, 126 N. 44
Huston v. Read, 32 N. YF A 591 231, 232
Huston’s Estate, In re, 163 Cal. 166 84
Hutcheson v. Hodnett, 115 Ga. 990 378
Hutchins v. State Bank, 12 Metc.
(Mass.) 421 0.
Hutchinson v. Maxwell, 100 Va. 169 356

Hutchinson’s Appeal, 34 Conn. 300 308
Hutson ‘v. Sawyer, 104 N. Car. 1 523
Hyde v. Heller, 10 Wash: 586 60

. Hyde, Prec. Ch. i18 ae

Li Rainey, 233 Pa.
Hylton v. Hylton, 1 ee (Va.) 161 407

I
Tasigi v. panel 161 wane 75 380
Ide v. Ide, 5 Masa. 5 368
Ihmes’ Tei In ons "iss, Iowa 20 78
Thre, In re, 162 Pa. St. 195
limas v. Neidt, 101 ee 348 286
Illinois Land &c. Co. v. Bonner, 75 Il.

315 258
Ingails? Will, In re, 148 Ill. 287 499
Inge v. Johnston, 110 Ala. 650 486

v. Jones, 109 Ala. 175 192
Ingersoll v. Ingersoll, 77 Conn. 408 829
Ingersoll’s Appeal, In re, 86 Pa. St. aor

2
Ingersoll’s Estate, In re, 3 Pa. Dist. ;

399 374
Ingilby v. pears: at Beav. 585 55
Inglis v. McCook, J. Eq. 27 173
Ingraham v. ioe 169 Ill, 432

192, 271, ai G83 346, 372

v. Meade, 3 Wall. Jr. (U. S.) 32” 374
Ingram v. Ingram, 2 Atk. Oe 373
International Tr. Co. v. ‘Anthony, 45

Colo. 474 446

Towa Loan &c. Co. v. Holderbaum, 86

Iowa 1 9
Irvine _v. Irvine, 12 Ky. L. 827 293, ae

v. Newlin, 63 Miss. oo

v. Putnam, 28 rs i 465 231
Irvine, In_re, 206 Pa. 442
Irving v. Bruen, 110 ae Div. (N. Y.) ee
} Irwin v. Teller, 188 N. Y. 25 322
| Irwin’s Appeal, In re, 33 Conn. 128 506
Isaac v. Halderman, 76 Nebr. 823 443
Isner v. Kelley, 51 W. Va. 82 295
Ison v. Hialeomy, 136 Ky. 523 2
Israel v. Wolf, 100 Ga. 339 491
Ives v. Allyn, 12 Vt. 589 506
Ivin’s Appeal, 106 = St. 176 169
Izard v. Middleton, 1 Desaus. Eq. (S.

Car.) 116

J

Jack v. Hooker, 71 Kans, 652
Jackman’s Will, In ts 26 Wis. 104 491, sto
Jacks v. Henderson, i Desaus. Eq. (S.
Car.) 543 26
State, 44 Ark. 61 398
Jackson v. Alson, 67 Conn. 249 195, 309
v. Bevins, 74 Conn. 96 392
TABLE OF CASES

lix

[References are to Sections.]

Jackson
v. Bu ohns,
Bull, 10 Joh (N. Y.) 1 234
v. Everett (Tenn.), 58 S. w. 3340 379
v. Jackson, 6 Dana (Ky.) 257 150
v. Jackson, 153 Mass. 374 173
Vv. + Jackson, 4 Mo, 210 504
ackson, 56 S. Car. 346 243
v. Littell, 213 Mo. 589 234
Ve err. onns.
M ill, 6 Joh CN. Y.) 185 234
ve ee 14 Per etees 539 271
v. Rowell, 150
v. Tozer, ei o2 ‘ae 223 528
v. Twenty-Third St. R. Co., 88 N.
¥, 320 3
v. Wells, 9 Johns. (N. Y.) 222 234
Jackson’s Succession, 47 La. Ann. 1089 183
Jackson’s In re, 20 N. Y. S. 380 294
Jacobs_v. Bradlens 36 Conn, 369 188
v. Tee oP cae 27 #9 399
v. itney, ass. 4 49
Jacoway v. Hall, 67 Ark. 340 14
Jacquat v. Bachman 2 Te 2 Pp 169 239
ames v. Dean, 11 a 56
ames’ Estate, In re, 5 En — 396

te v. McWhorter, 7 Houst. (Del.)
2
Janes v. Williams, 31 Ark. 175

486, 498, 508, 523

Jaques v. Horton, 76 a 238 487; 506

Jarboe v. Hey, 122 Mo. 294

Jarrett v. Johnson, 216 in 212 415

Jasper v. Jasper, 17 Ore. 590 347, 411

Jastram v. McAuslan, 26 R. I. 320 341
Jagneey vs Thorne, 2 Barb. Ch. (N.

50

Jee v. Audley, 1 Cox 324 269

Jeffreys v. Alston, 2 Law Repository

(N. Car.) 634 525
Jenkins v. Fowler, 63 a H. 244 215
v. Horwitz, 92. Md. 293
v. Jenkins, 64 N. H. S67 105
v. Merritt, 17 Fla. 304 280
v. Shields, 47 Iowa 708 399
Jenkins’ Will, In re, 43 Wis. 610 443)

Jennings v. Jennings, 21 Ohio St. 56 48, 49
Jeremy’s Estate, In re, 178 Pa. St. 477 034
Jewett me Sua 83 App. Div. (N.

) 419
vw Schmidt, 39 Misc. (N. Y.) 502 413
Jobe. vw Dillard, 104 Tenn. 658 351
Jocelyn v. Nott, 44 Conn. 55 271
John, In re, 30 Ore. 494 488
John o preteen Home, In re, 162 Pa.
St. 2 271
Johnes 2 Beers, 57 Conn. 295 257
v. Jackson, 67 Conn. 81 486, 491
Johns v. Doe, 33 Md. 515 57
v. Hodges, 62. Md. 525 485
v. Johns, 23 Ga. 31 416
John’s Estate, In re, 11 Phil. (Pa.) 144 177
Johns Hopkins University v. Pinckney,
55 Md. 365 462, 463
Johnson v. Beazley, 65 Mo. 250 492
v. Brasington, 156 N. Y. 181 169
v. Buck, 220 Ill, 226 351
ve Childs, 61 Conn. 66 205
v. Clarkson, 3 Rich. Eq. (S. Car.)
305 152
v. Delome L. &c. Co., 77 Miss. 15
234, 446
v. Edmond, 65 Conn. 492 171
v. Gooch, i16 N. Car. 64 292
ve Holifield, 82 Ala, 123 308, 313
v. Home for Aged Men, 152 Mass.
39 138, 324
v. Hubbell, 10 N. J, iu 332 33
Vv. Johnson, 98 Iil. 796
v. Johnson, 187 Ill. oe 499

 

Johnson

v. Johnson, 106 Ind, 475 451
v. Jobnsen, 128 Ind. 93 157
v. Johnson, 1 Tenn. Ch. 621 172
v. Lawrence, 95 N. Y. 154 422
v. Morton, 10 Pa. St. 245 284
v. Poulson, 32 N. J. Eq. 390 324
v. Stevens, 95 Ky. 128 526
v. Terry, 139 Ala. 614 253
v. Warren, 74 Mich. 491 282
ve Washington L. &c. Co., 33 App.

D 242 250

Washington L. &c. Co. 224 U.

S. 224 52

v. Webber, 65-Conn. 501 172, 257, 394

v. White, 76 Kans. 159 57, 206

v. Whiton, 159 Mass. 424 zn
Johnson, In re, 23 R. I, 111

Johnson's Estate, In re, 134 Cal. 662 ie

Jeunes Estate, In re, 170 Pa. St. nie

Johnson’s Succession, 24 La, Ann. 125 396
Johnson’s Will, In re, 40 Conn. 587

v.

464, 505

Johnston v. Stassock, 2 Ala. 7" 22, 503
v. Hughes, 187 N. Y. 446 187
v. Johnston, 1 Phila, (Pa.) 447 467

v. Morrow, 28 N. J. Eq. a 421
Jobastone v. Harrowby, 1 DeG. * ie

Jehastans 's Estate, In re, 141 Iowa 109 189
Johnston’s Estate, In re, 185 Pa. St.

179 265, 268
John’s Will, In re, 30 Ore. 4
» 188, 271
Jones v. Caldwell, 97 Pa. St. a "1134
v. Casler, 139 "Ind. 382 504
v. Chandler, 40 Ind. 588 7
v. Deyer, 16 Ala, 221 3
v. Doe, 2 Ill. 276 281
v. Grieser, 238 Ill. 183 448
v. Habersham, 63 Ga. 146 107, 444, 448
v. Habersham, 107 U. S. 174
44, 77, vy 100, 281
v. Hand, 78 App. Div. (N.Y 56° 240
v. Hartley, 2 Whart. (Pa.) ibs 75
v. Hunt, 96 Tenn. 369 193
Vv. Hunter, 6 Rob. (La.) 235 49
v. Huntley, 156 N. Car. 410 55
v. Jones, 93 Ky. 532 355
v. Jones, 223 Mo. 424 go 282, 343
Vv. Jones, 13 N. J. Eq. 236 245
v. Larrabee, 47 Maine 474 448
v. Lloyd, 33 Ohio St. 572 169
v. Loveless, 99 Ind. 317 5
v. McPhillips, 82 Ala. 102 519
v. Minogue, 29 Ark. 637 96
v. Moore, 96 Ky, 273 351
v. Myatt, 153 N. Car. 225 194, 210
v. Nicolay, 2 Rob. (Eccl.) 288 488
v. Oliver, 38 N. Car. 369 170
v. Paschall, 36 N. Car. 430 195
v. Port Huron E. &c. Co, 71 Il,
502 296
v. Quattlebaum, 31 S. Car. 606 212
v. Rees, 6 Penne. (Del.) 504 244, 961
v. Richardson, 5 Metc. (Mass.) 247, 443
v. Robinson,’ 17 Ohio St. 171 50
us Tebbetts, 57 Maine 572 448
Webb, 5 Del. Ch. 132 286
ones In re, 103 N. Y. 621 345
Jones’ Appeal, In rh a Conn. 60 191, 192
Jones’ Estate, In re, 211 Pa. 364 172, 468
Jones Estate, In ee ‘8 Phila. (Pa.) aes
oe v. Abney, 97 Tex. 296 33
v. James Dunn & pias Loan &c.
o., 13 Ont. 2 294
Ix

TABLE OF CASES

[References are to Sections.}

Jordan
v. Miller, 47 Ga. 346
v. Roach, 32 Miss. 481
v. Thornton, 7 Ga. 517
Jossey v. Brown, 119 Ga. 758
Jost v. Jost, 1 Mackey (D. C.) 487
coueeeays In re, 15 App. Div. (N. Y.)
7
Jourolmon v. Massengil, 86 Tenn. et
Judevine v. Judevine, 61 Vt. 587 oF
Justus’ Succession, 45 La, Ann. 190
232,
K
Kalbach v. Clark, 133 Iowa 215 195,
Karrick vy. Pratt, 4 Greene (Iowa) 144
Rarstens v. Karstens, 29 App. Div. Me
= 29
Kauffman v. Gries, 141 Cal. 295 232,
Kaufman v. Caughman, 49 S. Car. 159
Kaufman’s Estate,‘In re, 117 Cal. 288

Kavanaugh’s Will, In re, 125 N. Y. 418
Kean v. Hoffecker, 2 Harr. (Del.) 103

Kearney v. Brooklyn Industrial School
ae 1 Redf. Surr. (N. Y.)

292 412
v. St. Paul &c. Missionary nee 10
Abb. N. Cas. (N. Y.) 2 100
Keebler v. Shute, 183 Pa. St. aes 534
Keefe v. Keefe, 19 Cal. App. 310 33
ee an v. Geraghty, 101 He 26 105
eler v. Keeler, 39 Vt. 293
= Laver, 73 sane 383 65
Keep, In_re, 17 N. St. 470
Keim v. Lindley, 54 N j. EL er 8 373
Keister v. Keister, 178 Ill. 103 516
Keith v. Copeland, 138 Mass. 303 347
Vv. Rakae 58 Kans, 732 41, 49
v. Proctor, 114 Ala. 676 89
v. Raglan, 1 Coldw. a : 525
Kelby, In re, Fed. Cas. No. 1830 22.
Keleman, In re, 126 N. Y. 73 187
Keller v. Gaylor, 40 Conn. 348 61, 221
Kellerman’s aaa In re, 18 Pa.
Super. Ct. 5 177
Kellett v. Shepard, 139 Ill. 433 169
Kelley_v. Devin Ore. 211 33
v. Meins, 135 Mass. 331 231, 237, 296
v. Snow, 185 Mass. 288 81
v. Welborn, 110 Ga. 540 \ 77, 78, 100
Kellogg v. Ridgely, 161 Ind. 110 504
Kellum’s Will, In re, 52 N. Y. 517 528
Kelly v. Johnson, 34 Mo. 400 62
v. Moore, 22 App. C.9 447, 498
v. Nichols, 17 R. I. 306 273
v. Nichols, 18 R. I. 62 308
v. Richardson, 100 Ala. 584
32, - as 138, a
v. Stevenson, 85 Minn.
Kelso v. Cuming, 1 Redf. (x 4) 392 284
Repneey v. Maginnis, 2 Mich. N. P, 240
49
Kenaday v. Sinnot, 179 U. S. 606 140, 434
Kendall v. Clapp, 163 Mass. 69 234
v. Kendall, 24 Pick. (Mass.) 217 440
v. Kendall, 4 Russ. 216
Keniston v. Adams, 80 Maine 290
306, 311, 490
v. Mayhew, 169 Mass. 166 241
Kennard v. Kennard, 63 N. H. 303 490
Kennedy v. Alexander, 21 App. D. C. 288
424
Kennedy’s Estate, In re, 190 Pa. St. 79 253
Kennedy’s Will, In re, 167 N. Y. 163 504
Kennett v. Kidd, 87 Kans. 652 99

 

Kenney v. Parks, 125 Cal. 146
Kent v. Kent, 106 Va. 199
v. Morrison, 153 Mass, 137

3
Kent’s Estate, in re, 161 Cal. 142 ate ;

Kenworthy v. Williams, 5 Ind. 375

Kenyon v. Saunders, ig R. I. 590

ieeeeh In re, 112 App. Div. (N. ce
414

?
Kern v. Kern, 154 Ind. 29
Kernan’s Succession, In re, 52 i
Ann. 48
Kerr v. Leuahertzs 59 How. Pr. a.

v. Lunsford, 31 W. Va. 659
v. White, 9 Baxt. (Tenn.) 161
Kerrigan - Conelly (N. J. Eq.) 46 Atl

o

v. Tabb_(N. J.), 39 Atl. 701
Kerry v. Derrick, Cro. Jac. 104
Kessler v. Kessler, 2 Pa. Co. Ct. 522
Ketchum v. Corse, 65 Conn. 85

v. Walsworth, 5 Wis. ie
Kettlewell, In re, 98 L. (N. 8.) 23
Kettry v. Thumma, 9 ind, “App . 498
Key v. Holloway, 7 Baxt. (Tenn. 575

v. Weathersbee, 43 S. Cae 414 107,
Kiah v. Grenier, 56 N. Y. 220
Kidd v. Bates, 120 Ala. 79
Kidwell v. Ketler, 146 Cal. 12
Kiesenwetter v. Kress, 24 Ky. L. 1239
Kilborn’s Estate, In re, 158 Cal. 593

Kilgore v. Kilgore, 127 Ind. 276
a gm 284,
Kilgore, Ex parte, 120 Ind.
Killingsworth v. Portland Trust Co., 18
Ore. 351
Kilpatrick v. Barron, 125 m5 Y. 751
v. Johnson, 15 N.Y.
Kimball v. Blanchard, Yor ise 383
ve. ohappels 27 Abb. N. Cas. (NL Y.)

v. Crocker, 53 Maine 263

Vv. Ellison,’ 128 Mass. 41

v. Story, 108 Mass. 382 181,
Kimball’s Will, In re, 20 R. i at? 217°
Kimberly, In re, 150 N. Y.
Hrepenly's Appeal, In re, 768 Conn.
Kimble v. White, 50 N. J. Eq. 28
King v. Beck, 15 Ohio 559 169,

v. Cole, 6 R. I. 584

v. Frick, 135 Pa. St. 575

v. King, 168 Ill. 273

v. Merritt, 67 Mich. 194

ve Savage, 121 Mass. 303

v. Talbot, 40 N. Y. 76
Kingman v. "Harmon, 131 Ill. 171
Kingsbury v. Bazeley, 75 N. H. 13

ve Beaneeets 113 App. Div. (N. Y.)

Kinkele v. Wilson, 151 N. Y. 269
Kinne v. Phares, 79 Kans. 366
Kinney v. Keplinger, 172 Ill. 449

241, 286,
v. Kinney, 86 Ky. 610
Kiracofe v. Kiracofe, 93 “Va. 591
Kirby v. Kirby, 40 Ala, 492
Kirkpatrick v. Jenkins, 96 Tenn. 85
Kirkpatrick, In re, 22 N. J. Eq. 463
Kirkwood v. Gordon, 7 Rich. (S. Car.)

390,

474
Kirsher v. Kirsher, 120 Iowa 337
Kischman v. Scott, 166 Mo. 214
Kitchell v. Burgwin, 21 Ill. 40
v. Young, 46 N. J. Eq. 506
Klabunde v. Casper, 139 Wis.
Klein, In re, 35 Mont. 185

497,

491
107, 182,
TABLE OF CASES

Ixi

[References are to Sections.]

Klock v. Stevens, 20 Misc. (N. Y.) 383 a
Klumpert v. Vrieland, 142 Iowa 434 869

Klussman v. Wessling, 238 Ill. 568 33

Knapen’s Will, In re, 75 Vt. 146 465

Knauss’ Estate, In re, 148 Pa. St. 265 291

Knefler v. Shreve, 78 Ky. 297 356
Knight v. Hollings, 73 N. H. 495

493, 523, 524

v. Knight, 2 Sim. & Stu. 490 253

ve Mahoney, 152 Mass. 523 288

v. Tripp, 121 Cal. 674 3

Knorr v. Millard, 57 Mich. 265 193

Knost v. Knost, 229 Mo. 170 288

Knowles v. Knowles, 132 a 806 167

Knox v. Barker, 8 N. Dak. 272 49, 244

= Jones, 47 ’N. Y. 389° 47

~» Knox, 95 Ala. 495 530

x Paull, 95 Ala. 505 486, “se 515

Kohler’s Estate, In re, 79 Cal. 313 532

Kohne’s ia In re, 1 Pars. Eq. Cas.
(Pa.) 3 49

Kohtz v. Eidred, 208 Ill. 60

Kondolf v. Britton, 160 App. Div. (N.

Y.) 381
Kopmier’s Will, In re, 113 Wis. 233
9, 50, 941
Koppikus, In re, 1 Cal. App. 84 14
Kort v. Gerichs’ 145 Ind. 134 231
Karki 2 Cutler, 26 Conn. 4 211, 353,
Kornegay v. Morris, 122 N. Car. 199°” 286

Kramer v. Kramer, 201 Fed. 248 138, 140

v. Lyle, 197 Fed. 618 61

v. Weinert, 81 Ala. 414 84

Krause v. Klucken, 135 Mass. 482 55, 368

Krechter v. Grofe, 166 Mo. 385 212

Kuhn’s Appeal, In re, 4 Wash. 534 397
Kultz v. Jaeger, 29 App. D. C. 300

500, 527

Kumpe v. Coons, 63 Ala. 448 499, 516

Kundinger v. Kundinger, 150 Mich, 636 33
Kunkler’s Will, In re, 147 N. Y¥. S

1094 44
Hunlemat 's Estate, In re, 136 Pa. St.

Kurtz v. Saylor, 20 Pa. St. 205 50
. Kurtz’s Estate, In re, 145 Pa, St 637, 176
L
Lacey v. Collins, 134 (ori 583 1200

v. Dobbs, 63 N. J. Eq. 325 442
v. Floyd, 99 Tex. 112 306
Lackey’s Baths In re, 4 Redf. (N. Y.
Surr.) 95 14
Ladd v. Harvey, 21 N. H. 514 210
v. Ladd, 125 Ala. 135 417
Lafon v. ‘Gravier, 1 Mart. (N. S.)
(La.) 243 394
Lafoy v. Campbell, 42 N. J. Eq. 34 286
La Grange County v. Ropers 55 Ind.
297 165
Laing v. Barbour, 119 Mass. 523 214
Laird v. Vila, 93 Minn. i 342
Laird’s Appeal, 85 Pa. St. 193
Laisure v. Richards, 56 Tnd> hes. 301 195
Lake v. Hood, 35 Tex. Civ. App. 32 486
Lamar v. McLaren, 107 Ga. 591 287
v. Simpson, 1 Rich. Eq. (S. Car.)
71 352°
Lamb v. Girtman, 33 Ga. 289 450
v. Lamb, 105 Ind. 456 532, 533
v. Lamb, 131 N. Y. 227 143
v. Lynch, 56 Nebr. 135 268
Lambe v. Drayton, 182 Ill. 110 241
v. Eames, L. R. 6 Ch. 597 374

Lambert v. Harvey, 100 Til. 338 372
Lambert v. Paine, 3 Cranch (U. “ae 97
Lamberton v. Pereles, 87 Wis. 348

 

Lamb’s Estate v. Hall, 122 Mich. 239 485
Lampert v. Haydel, 96 Mo. 439
296, 348, 356

Taneyabire v. Lancashire, 2 Phil. Ch.

Lancaster v. Lancaster, 187 Ill. 540

192, 733
Land v. Otley, 4 Rand. Ave, 213 59
Lander v. Lander, 217 I 212

Landon v. Moore, 45 ek 7402 231
Landram v. Jordan, 203 U. S. 56 359
Landry v. Tomatis, 32 La. Ann. 113 454
Landry’s Succession, 114 La. 829 108

Lane v. Parise 78 App. Div. (N.

) 60 402
v. Eaton, 69 Minn. 141 186, 271, 881
ve Ewing, 31 Mo. 75 4
v. Hill, 68 N. H. 275 462
v. Utz, 130 Ind. 235 ae
Lane’s Appeal, 57 Conn. 182 50,
Lang v. Everling, “ Misc. a, Y.) 530 335
Langdon v. Astor, N. 433, oe
v. Blackburn, 109 Cal. a
v. Ingram, 28 Ind. 360
Lange v. Dammier, 119 tne, 567 524, 235
v. Wiegand, 125 Mich, 647
Tanuel's Appeal, 154 Pa. St. 188 a3
Langford v. Pitt, 2.P. Wms. 629- 60
Langford’s Estate, In re, 108 Cal, oe

30, 532

Langley v. Langley, ¥ La. 114 453
Vv. Langley, 18 R. I. 618

Langley’s Estate, In Z 140 Cal. oe

17, 518
Lanius v. eines 100 Tex. 550 45, 49
penning v. Cole, 6 N. J. Eq. 102 56
Gay, 70 Kans. 353 519
tanner v. Buck, 2 Diets, a Sm, 484 312
v. Despard, 1 Cal. 214
Lansing v. Haynes, 95 Mice ote 468
v. Lansing, 45 Barb. (N. Y.) 182 422
Lantz v. Trusler, 37 Pa. St. 482 258
Larmon v. Knight, 140 Ill. 232 342
Larned v. Bridge, 17 Pick. Cisse) 339 366
Larsen v. Johnson, 78 Wis. 300 368
Larson v. How, 71 Minn. 250 491, 509
v. Reynolds, 13 Iowa 579 62
Larson’s Estate, In re, 71 Minn. 250 493
Lash v. Lash, 209 Ill. 595 134
Lasher_v. McDermott, 144 App. Div.
(N. ¥.) 8 33
Latham v. Set 25 Nebr. 535 530
Lathorp v. Merrill, 207 Mass. 6 296
Lataop: 's Estate, In re (Cal.), 131 Pac.
Laughlin v. Page, 108 Maine 307 59
v. Norcross, 97 Maine 33 56, 61, 221

Laughton v. Atkins, 1 Pick. (Mass.)
535 462, 488

Lauman v. Foster, 157 Iowa 275 222
Lausman v. Drahos, 12 Nebr. 102 231
Lavery v. Egan, 143 Mass. 389 169
Lavigne v. Ligue des Patriotes, 178
Mass. 25 181
Law v. Douglas, ae Tose. 606 281
v. Law, 83 Ala. 464

Law Guarantee & Test Co. v. Jones,
103 Tenn. 245 365, oor
Lawrence v. Cooke, 104 N. Y
v. Elliott, 3 Redf. Surr. tie ¥) 235 7
v. Hebbard, 1 Bradf. Surr. (N. Y.)
252 0, 176

v. Phillips, 186 Mass. 320 913

v. Smith, 163 Ill. 149 269
Lawrence’s ‘Appeal, 49 Conn. 411 48
Lawrence’s Estate, In re, 136 Pa. St.

354 266, 376
* Ixii
e

Lawton v. Event Sav. Bank, 160 ies

Mass, 154 2

v. Lawton, 7 Ohio Dec. 493 370
Lawyer v. Smith, 8 Mich. 411 505
Layman’s Will, Tn re, 40 ce att 526
Laytin v. Davidson, 95 N. 422
Layton v. Jacobs, 5 Penn. toa) 71 523
Lazier v. Lazier, 35 ee Va. 567 394
Leach v. Burr, 188 U. S. 510 493
Leacroft v. Maynard, “3 Bro. Ch. 233 142

Leake v. Robinson, 2 Mer. 363 177,
v. Watson, 58 Conn. 332 398

Learned’s Estate, In re, 70 Cal. 140 50

Leathers v. Greenacre, 53 Maine 561

20, 453
Leaver v. Gauss, 66 Iowa 314 5
Leavitt v. Beirne, 21 Conn. 1 292, 356
Le Breton v. Cook, 107 Cal. 416 243

Ledebuh: if is Wisconsin Trust Co., 112
Wis. 295

Lee v.. Baia, 132 N. Car. 755 176, 195
ve 41 Grat. (Va.). 182 434
v. Tose 45 Ind. App. 645 463
v. Lee, 88 Va. 805 320
ve MeFarland,

19 Tex. Civ. App. -

v. O’Dennell, 95 Md. 538 357, 943
v. Smith, 84 Va. 289 395
SN, Templeton, 73 Ind, 3 ‘519
Lee’s Will, In_re, 46 N. TLE 193 87
Leffingwell v. Bentley, 74 Ill. on 292 194
Leggett v. Hunter, 19 a My 445 381
v. Stevens, 183 N 194
Legwin v. McRee, we a a 252
Lehman v. Lindenmeyer, 48 Colo, 5 €55
-
Lehnhoff v. Theine, 184 Mo. 346 167
Leigh v. Harrison, 69 Miss. 923 348, 356
Leitch v. Wells, 48 N. Y. 585 421
Leland v. Adams, 9 Gray Cas 171 234
v. Hayden, 102 Mass, 542 345
Lemen v. McComas, 63 Md. 153 358

Lemmons v. Reynolds, 170 Mo. 227
240, 306
Lennen v. Craig, 95 Ind. 167 231

Lennig’s Estate, In re, 154 Pa. St. 209 187
Lennon’s Estate, In re, 152 Cal. 327 527
Lenz v. Sens, 27 Tex. Civ. “apP- 442 308
Leonard v. Burr, 18 N. Ys. 271

v. Burtle, 226 Ill, 422 532
Leonard, Ex parte, 39 S. Car. 518 443
Leo-Wolf, In re, 25 Me (N. Y.) 469 44
Lepps -v. Lee, 92 Ky. 253

v. Lee (Ky.), 16. 's ow. 346 258
Lester v. Kirtley, 83 Ark. 554 392

v. Stephens, 113 Ga. 495 352

Leveaga’s Estate, In re, 119 Cal. 651 142
Levengston’ 4 gue In re, 158 App. Div.

(N. Y.) 6 25, 451
Leverett _v. mivetiy 208 Mass. 241 367
Levi v. Bergman, 94 ae ane 349
Levy v. Levy, 33 N. Y. 352
Levy’s Estate, In re, 161 Pa. St. 189 215
Lewis v. Ames, 44 Tex. 319 521

v. Barkley, 91 Nebr. ae, 396

v. Bryce, 187 Pa. St. 245

v. Fisher, 2 Yeates a) 196 178

v. Harrower, 197 Ill. 243

v. Howe, 174 N. Y. 340° 250°

Ve Lewis, 5 La. 387 24

v. Luckett, on App. D. C. 188 495

v. Lusk, 35 Miss, 401 313

v. Maddocks, 8 Ves. Jr. 150 33

x Scofield, 26 Conn. 452 28, 502

Smith, 03 N. Car. 145 64
dig Appeal, 108 Pa. St. 133 205

Lewis’ Estate, In re, 32 La. Ann. 385 41
Lewishon v. Henry, 179 N. Y. 352 159, 255

 

TABLE CF CASES

[References are to Sections.]

Leyte v. Thompson, 36 L, T. (N.

9 238
Ls Brick Co. v. Thornton, 141

7° 367
Eticenislen L. R. (1894) 1 a pee 382
L’Hommedieu, In re, 138 Fed. 6 37 351

?
L’Hote v. Roca, 102 Miss, 121
Lich v. Lich, 158 Mo. App: 400 174
Lichter vy. Thiers, 139 Wis. 481 176
Liggat v. Hart, 23 Mo. 127 206

Likefield v. Likefield, 82 Ky. 589 26
Lilly v. Tobbein, 103 Mo. 477 496
Lincoln v. Lincoln, 107 Mass. 590

v. Perry, 149 Mass. 368 41, 169
Lincoln Trust Co., In re, 78 Misc. N.

Y.) 325 255
Lindemann Me poseeey (Tex. Civ. App.) 4

107 S. W.
Lindley v. O'Reilly, 50 N. j. L. ee 470

Lindo v. Murray, 91 Hun (N. Y.) Frit 372
Lindsay v. Wilson, 103 Md. 252 210

v. Zanoni, 6 Ohio C. C. 474 394
Lindsay, Ex parte, 2 Bradf. Sur. (N.
Y.) 204 501
Lindsey v. Lindsey, 45 Ind. 552 293.
v. Stephens, 229 Mo. 600 84, 445
Lindsley v. Dodd, 53 N. a Eq. 69 414
Lines v. Darden, °5 Fla,
338, *’a9, 340, 372, 378
v: Lines, 142 Pa, St
Link v. Link, 90 N. Car. 1935 337
Linney v. Peloquin, 35 Tex. 29 103
tanger v. Strang (Iowa), 126 N. W. ais
Linton v. Laycock, 33 Ohio St. a 252

Lippincott v. Lippincott, 19 N. J. .
“wo. #9 6g

6

v. Ridgway, 10 N. qe a 164 366

v. Wikoff, 54 N. Eq. 107 448

Lipps v. Panko, 93 Nevs® 469 519

Lisk v. Sherman, 25 age foe Y.) 433 33

Lisle v. Tribble, 92 Ky. 3 183

Lissauer’s Will, In re, 5 nN. Y. S. 260 497

Little v. Bennett, 58 N. Car. 156 aot

v. Giles, 25 Nebr. 313

Livermore v. Somers (N. J. Ea.), 16°

513 232
Livingston v. Gordon, 84 N. Y. 136

295, 866

Livingston’s Appeal, 63 Conn, 68 526, 527

Lloyd i Tey 173 Mass. ae 355

v. Lloyd, 3 Kay & & Johns, 2 253

v. Lioyd, 2 Sim. (N. S.) 255 14
Lockard v. Ste henson, 120 Ala. 641
Lockart v. orthington, 1 Sneed

(Tenn.) 318 368
Locke v. Farmers’ Loan & Trust Co.,

140 N. Y. 135
Lockridge v. Mace, 109 Mo. 162 242,

v. McCommon, 90 Tex. 234 283

Loeb v. Struck, 42S. W. 401 256
Loebenthal v. Raleigh, 36 N. J. Eq. 169 379
Lofton v. Murchison, 80 Ga. 321 238, 245
Logan _v. Brunson, 36 S. Car. 7 176, 310

v. Logan, 11 Colo. 44 65

Logan, In re, 131 N. Y. 456 191
Lombard v. Witbeck, 173 Ill. 396 333
Long v. Aldred, 3 Add. Eccl. 48 475

v. Rodman, 58 Ind. 58 418

v. Zook, 13 Pa. St. 400 50
Leones Estate, In re, 39 Pa. Super. Ct.

176

Loomis v. Loomis, 35 Barb. (N. Y.)
624 323
Loosemore v. Smith, 12 Nebr. 343 491
Loosing v. Loosing, 85 Nebr. 66 237
TABLE OF CASES

Ixiii

[References are to Sections.]

Lopez’s Succession, 33 La. Ann. 368 496
Lord v. Bourne, 63 Maine 368 169, 241
v. Hough, 37 Cal. 657 412
v. Lord, . H.7 448
Lorieux v. Keller, 5 5, Loves 196 103
Loring v. Arnold, 15 R 428 64
v. Oakey, 98 Mass. 267 489

v. Wilson, 174 Mass. 132 374, 376

Lorton v. Woodward, 5 Del. Ch. 505 222
Lorts v. Wash, 175 Mo. 487 10, 498, 533
Losey v. Stanley, 147 N. Y. 560 257
Loud v. Winchester, 52 Mich. 74 418
Lougheed v. Dykeman’s Baptist Church,
129 N. Y. 211
Logpsbury v. Burial Assn., 170 Mich, ay
Lovass’ Estate, In re, 92 Wis. 616 286
Love v. Blauw, 61 Kans. a
v. Johnston, 12 Ired. L. (N. Car.)
355 478
Lovell v. Quitman, 88 N. Y. 377 452, 464
Loveren v. Donaldson, 69 N. H. 639 309
v. Lamphrey, 22 N. HL. 434
50, 56, 57, 206
Lovering v. Lovering, 129 Mass. 97 273
v. Worthington, 106 Mass. 86 268, 273
Lowe v. Cloud, 45 Ga. 481 293
Loyless v. Blackshear, 43 Ga. 327 245
Lucas v. Brooks, 18 Wall. (U. S.) 436 488
v. Goff, 33 Miss. 629 22, 454
ve Lockhart, 10 Sm. & M. (Miss.)
466 355
v. Tucker, 17 Ind. 41 41
Luce v. Dunham, 69 N. Y. 36 170
Ludington v. Patton, 111 Wis. 208 415
Ludlow v. Ludlow, 36 N. J. Eq. 597 aa6
ug pbert v. Brockmeyer, 158 Mo. App. i
Luett v. Lueft, 129 Wis. 534 381, 1227
“Lumber Co. v. Files, 104 Ark. 600 41
Lumpkin v. Rodgers, 155 Ind. 285 1189
Lundy v. Lundy, 24 Can. Sup. Ct. 650 109
Lurie v. Radnitzer, 166 Ill. 609 447
Lusby v. Cobb, 80 Miss. 715 171
Luscomb’s Will, In re, 109 Wis. ti —

Lushington v. Sewell, 1 Aes & M. 169 60
Lusk v. Lewis, 32 Miss. 297 359

Luther v. Luther, 122 Ill. 558 525
Lutz, In re, 157 Mo. 439 322
Lyman vy. Parsons, 26 Conn. 493 345
Lynch v. Miller, 54 Iowa 516 521
v. Paraguay, L. R. 2 P. & D. 268 51
Lynch’s Estate, In re, tag Cal. 373 203
Lyon v. Acker, 33 Conn, 222 195
v. Fidelity Bank, 128 N. Car. 75 740
v. Industrial School Assn., 127 N.
Y. 402 396
v. Lyon, 88 Maine 395 178
v. Ogden, 85 Maine 374 41
Lyons_v. Campbell, 88 Ala. 462 525
v. Van Riper, 26 N. J. Eq. 337 441
Lyon’s Will, In re, 96 Wis. 339 oy ae 499
: Lytle’s Succession, 1 Rob. (La.) 2
“00, 524
M
Mabics Will, In re, 5 Misc. (N. Y.) a
9
McAlister v. Burgess, 161 Mass. 269 177
vy. Butterfield, 31 Ind. 433
McAllister v. McAllister, 46 ve. 272 189
v. Tate, 11 Rich. L. (S. Car.) 509 234
a 's Istate, In re, 15 Pa, Dist. re
MeAlpine vy. Potter, 126 N. Y. 285 422

 

McAndrew’s Estate, In re, 206 Pa. 366 509

McAnnulty v. McAnnulty, ne Ill. 26 467
McArthur v. Gordon, 126 N, 597 349

v. Scott, 113 U. S. 340 ‘66. 269, 523
McBeth v. ‘McBeth, 11 Ala. 596 504
McCall v. McCall, 161 Pa. St. 412 295
McCamant v. Nuckolls, 85 Va. 331 375

McCambridge v. Walraven, 88 Md. 378 525
McCan’s Succession, 48 La. Ann. 145 355
McCarn v. Rundall, 111 Iowa 406 464
McCartee v. Orphan Asylum Soc, 9
Cow. (N. 4
McCarthy vy. Provident Sav. Inst., 159
Mass. 527 344
McCartney v. Osburn, 118 Ill. 403
49, 169, 192, 194
McCarty v. Fish, 87 Mich. 48 252, 295
McCauley’s Estate, In re, 138 Cal. 432 100
McCauley’s Estate, In re, ae Cal. 546 100
wea v. Galbraith, 7 Rich. L. (S. can,

52

MoCay v. Clayton, 119 Pa. St. 133 485
McChord v. Caldwell, 96 Ky. 617 394
McClain v. ie 98 Iowa 145 306
McClaskey v. Barr, 54 ped. 781 486
McClellan v. Larchar, 45 N. J. Eq, 17 237
v. Mackenzie, 126 Fed. 701 285
McClench v. Waldron, 204 Mass. 554 195

McClernan v. McClernan, 73 Md. 283
341, 417
McClure v. McClure, i, ve. St. 374” 33
v. Spivey, 123 N. 678 485
ee In re, 16 oe. N. Cas. (N.

McCommon v. McCommon, oH Til, 428 63
McConnel v. Smith, 23 Ill. 611 234
McConnell v. McConnell, # Ont. 36 49

are

v. Stewart, 169 Ill. 252
McCoon v. All en, 45 a a Eq. 708 526
McCord v. Whitehead, 98 Ca. 381 240
McCormick, In re, 40 App. Div. (N.

Y.) 73 349
Mecewn v. Terrell, 9 Tex. Civ. App.

392
MeCoy v. Conrad, 64 Nebr. 150 443

v. Horwitz, 62 Md. 183 390

v. Houck (Ind.), 99 N. E. 97 213
McCracken v. McBee, 96 Ark. 251 287

vy. McCracken, 6 T. B. Mon. (Ky.)

342 414
oy i McCray, 12 Abb. Pr. (N. ie
McCrea v. Yule, 68 N. J. L. 465 34
McCreary v. Robinson, 94 Tex, 221 323
McCroan v. Pope, 17 ‘Ala. 612 354
McCulloch v. Campbell, 49 Ark. 367 526

McCullom v. Mackrell, 13 S. Dak. 262 33
MeGullegh v. Copeland, 40 Ohio St.
3

392
v. Lauman, 38 Wash. 227 215
v. McCullough, 44_N. J. Eq. 313 390
Meculbugy® Estate, In re, Myr. Prob.
(Cal.) 76 444
McCune v. Baker, ee Pa. St. 503 232
v. House, 8 Ohio eS 43
McCurdy v. Neall, 42 N. J. Eq. 333
32, 478, 480
McCutchen v. Loggins, 109 Ala. 457
518, 521, 534
McDaniel v. Crosby, 19 Ark. 533 530
vy. Hutcherson, 136 Ky. 412 33
v. Johns, 45 Miss. 633 233
v. Pattison, 98 Cal. 86 491

McDermott v. Hannon, 203 Fed. 1015 522
My Denmeie Estate, In re, 148 Cal.

MeDonald v. King, 1 N. J. L. 432
v. McDonald, S42 Ind, 55

408.
370
518, 525
lxiv

TABLE OF CASES

[References are to Sections.]

McDonald
v. McMullen, 2 Mill (S. Car.) 91, -64
v. Shaw, 81 Ark, 235 165, 167, 188
v. Shaw, 92 ‘Ark. iz 287
McDonnell v. Farrow, 132 Ala. ne

487, 492

my Jorden 178 U. S. 229 522

McDuitie ~ Montgomery, 128 Fed. 105 339

McElfresh. v. Guard, 32 Ind. 408 450
ee eens Will, Tn re, 18 N. j. Eq.

443
Mera ‘adden v. Hefley, 28 S. Car. 317

136, 138
McFadin v. Catron, 120 Mo. 252 63, 84
McFait’s Appeal, In re, 8 Pa. St. 290 324
McFarland v. McFarland, 177 Ill. 208
234, 235, 123t
McFeely v. Moore, 5 Ohio 464 238
McGeath v. Starr, SE Ind. 320 523
Me bhne v. Abbott, L. R. 10 App. Cas.

MiCillis v. McGillis, 154 N. Y. 532

251, 254
McGinnis v. Harris, 52 N. Car. 213 169
McGovern v. McGovern, 75 Minn, 314

a 203
MeGovranis Estate, In re, 190 Pa.

375 191, ass, 309
McGowan v. Elroy, 28 App. D. C. 188 469
McGraw v. Miner, 12 Ky. L. fi 236
McGraw’s Estate, In re, 111 N. Y. pa 97

McGraw’s Will, In re, 9 App. Div. a
ey) 372 oe 526

McGreevy v. McGrath, 152 Mass. 24 307
McGrews v. McGrews, . 1 Stew. & P.

(Ala.) 30 490
McGriff v. Porter, 5 Fla. 373 366
McGuire v. Gallagher, 99 Maine 334 815
Machem v. Machem, 28 Ala. 374 11
McHugh v. McCole, 97 Wis. 166 340

os v. Hockaday, 36 Tex. Civ.

1 14
Meteire v. McConn, 28 Iowa 480 87
v. McIntire, 19 D. C. 482 453
v. McIntire, 162 U. S. 383

we 452, 516
v. McIntire, 192 U. S. 195

McIntire Poor School v. 1 ainesville
Canal &c. Co., 9 Ohio at 99
‘McIntosh v. Suen 45 S. Car. 584 98

v. Moore Tex. Civ. App. 22 84, 464
Metnioae ee In re, 158 Pa. St 99%
464

Metstyre v. McIntyre, 120 we
Mack v. Mulcahy, 47 Ind 3
Mackall v. Mackall, 135 ty, 8. 171 63
Mackay v. Mackay, 107 Cal. 303 222
Mackay, In re, 77 Misc. (N. Y.) i 49
Meher 's Estate, In re, 5 Misc. (N. Y.)

McKee v. McKee, 26 Ky. L. 736 233,
v. McKee (Tenn.), 52 S. W. 320
McKeough v. McKeough 69 Vt. 34
Mackey v. Mackey, 71 ee Eq. 686
McKibbin, In re, 207 Pa. 152
McKiernan v. Beardslee, 72 N. J. Eq.

Meinley v. Coe, 66 N. & Eq. 70
v. Martin, ao Pa. 550 282

McKinney v. Noble, 37 Tex. 731

McKinnon v. Lundy, 21 Ont. App. 560

McKnight v. McKnight (Tenn.), 107
Ss 6 817
McKrell v. Walker, 172 Pa. St. 154

357
Mack’s Appeal, In re, 71 Conn. 122
271, 516

 

McLain v. Garrison, 39 Tex. Civ. App.

431 446
Howald, 120 Mich, 274 176
McLane’ Cropper, 5 App. Cas. (D. aie
McLaughlin v. McManigle, 63 Tex. 553 5
v. Penney, 65 Kans. 252
McLean v. Elliott, a a Car. 70 107, 448
v. McLean, 207 N. 365 285
v. Williams, 116 en 257 195
Mal out v. Dell, 9 Fla. ae 22, 392
McLouth v. Hunt, 154 N. 179 345
McMahon’s Estate, In re, “ish a St.

175 eo 395
McMaken v. McMaken, 18 Alas 523
McMaster v. Scriven, 85 Wis. 6a So7, 526
McMechen v. McMechen, 17 W. Va.

683 449, 526
McMillan v. Cox, 109 Ga. 42 237, 379, 821
McMillen, In re, 12 N. Mex. 31 440
McMullin v. Leslie, 29 Pa. St. 314 231

v. McMullin, 8 Watts (Pa.) 236 357
McMurray v. Stanley, 69 Tex. 227 251
MeMuterie v. McMurtrie, 15 N. J. L. 193
MeNatly v. McNally, 23 R. I, 108 212
McNaughton v. Ay Hae aniOR 41 Barb.

CN. ¥.) 50 58

v. McNaughton, 34 N._Y. ft 56, 434
McNeal v. Sherwood, 24 R. 314 177
McNeely v. Me Nery. 50 La. pees 823. 420
McNeile, In re, 217 Pa. 179 375, 376

McNitt, In re, 229 Pa. 71 76

McNutt v. McComb, 61 Kans. 25 231

v. McNutt, 116 Ind. 545 6

McQueen v. Farquar, 11 Ves. 467 380
v. Lilly, 131 Mo. 9

194, 320, 321, 322, 326

McWilliams v. Gough, 116 Wis. 576 417

Mente? vy. Alderson, L. R. 8 App.

Cas. 467
Maddox v. Maddox, 114 Mo. 35 63
Mader v. Apple, 80 Ohio St..691
Madison v. Larmon, 170 Ill. 65
192, 256,
Maeck v. Nason, 21 Vt. 115 217
Mascari vy. Mayor, 1 Mart. (La.)

MaGee v. Alba, 9 Fla, 382
v. McNeil, a Miss. 17 . 26
v. O’ Neill, 9 S. Car. 170 293, 906
Mager v. gis 8 How. (U. S.) 490 15
Me sechen s Appeal, In re, 117 Pa. St.

152

eee: i gait Trust &c. Bank, 170
U. &. 15
Maguire pi Piece: 8 Mo. 267 195, 241
Maitland v. Adair, 3 Ves. Jr. 231 181
v. Baldwin, 70 Hun _(N. Y.) 267 376
Maitlen v.. Maitlen, 44 Ind. App, 559 2
Major v. Hunt, 64 S. Car. 97 80, 582
Majot’s Estate, In re, 199 N. Y. 29 2
Male’s Will, In re, 49 N. J. Eq. 266 22

Mallery v. Dudley, 4 Ga. 52 231
Malone v. Cornelius, 34 Ore. 3
523

497,
v. Hobbs, 1 Rob. (Va.) uae 464
Manatt v. Scott, 106 Iowa 203 63
Manderson v. Lukens, 23 Pa. St. Me

253
Mandlebaum v. McDonnell, 29 Mich 8
296, 368,
Mangum v, Piester, 16 S. Car. 316 242
Manierre v. Welling, 32 R. I. 104 282
Meatols's Appeal, In re, 126 Pa, St.
141

Mann v. Balfour, A Mo. 290 464
v. Fuller, Kay 6 141
TABLE OF CASES

ixv

[References are to Sections.]

Mann
= Hyde, 71 Mich. 278
ackson, 84 Maine 400
a ann, 14 Johns. (N, Y.) 2
Manners v. Philadelphia Library Co.,
93 Pa. St. 165
Matesse Estate, In re, 22 Pa. Co. Ct.

309
288
215
885

63
Manning v. Pippen, 86 aes 357 33
v. Pippen, 95 Ala. 537 42,
Mansfield v. Mix, 71 Conn, 72 359
v. Shelton, 67 Conn. 390 154, 233
v. Turpin, 32 Ga. 260 506
Manton v. Tabois, 54 L.. J. Ch. 1008 217
Manuel v. Manuel, 13 Ohio St. 458 40, 42
Mapes v. American era Missionary
Soc., 33 Hun (N. 36 42
March v. Huyter, 9G eo 243 28
ee ai (Tex. Civ. App.), 166
Market ae R. Co. v. Hellman, 109
Cal. 571
Markham v. Hufford, 123 Mick. 505
253, 294, 903
Markillie v. Ragland, 77 Ill. 231
Markle’s Estate, In re, 187 2, St. 639 191
oe v. Bryant, 4 Hen, . (Va.) ia
Marks’ Succession, 35 La. Ann. 1054 58
Markwell v. eho 28 Wis. 548 506
Marrett v. Babb, 91 Ky. 88 380
Marsh v. Hoyt, "161. Mass, 459 54
Vv. aa 10 B. Bons 9h) 360 392
v Marsh, 92 Nebr. 171
v. Marsh; 48 N. Ca o oy 75
Marsh, In re, 45 Hun (N. Y.) 107 39505
Marshall v. Baltimore Safe Deposit &c.
Co., 101 Md. 353
v. Berry, 13 Allen (Mass.) 43 3
v. Hartzfelt, 98 Mo. App. 178 137, 469
v. Rench, 3 Del. Ch. 239 434
Marston v. Marston, 47 Maine 495 293
v. Marston, 17 N. H. 503 440
Marston, In re, 79 Maine 25 48
Martin_v. Bowdoin, 158 Mo. 379 449
v. Davis, 82 Ind, 38 348
vy. Erdman, 124 Md. 668 212
v. Fort, 83 Fed. 19 231
Be a 2? Be ea tae 3
v. Holgate, L. R. 1 H. L. 175 312
v. King, 72 Ala. 354 452
v. Lachasse, 47 Mo. 591 311
v. Martin, 69 Miss. 315 394, 802
v. Mercer University, 98 Ga. 320
192, 310
v. Osborne, 1 Pickle (85 Tenn.) 420 209
v. Perkins, 56 Miss. 204 490, 495, 496
v. Stovall, 103 Tenn. 506
v. Stubbings, 126 Ill. 387 61
Martin, In re, 25R.L1 136, 138, 218, 392
Martindale v. Smith, 31 Kans. 270 62
Martineau v. Simonson, 59 App. Div.
(N. Y.) 100 107
Marton v. iseae: 85 Tenn. 420 214
Marvin v. Ledwith, 111 Ill. 144 250
Marx v. Clisby, 126 Ala. 107 379
Maskell v. Roussel, 5 Rob. (La.) 500 523
Mason v. Bloomington Library Assn.,
237 Ill. 442 14
v. Jones, 13 Barb, (N. Y.) 461 349
v. Massachusetts General Hospital,
207 Mass. 419 165
Vis Pomeroy, 151 Mass. 167 14
v. Rodriguez, 53 i Civ. App. 445 84
v. Smith, a Ala 141, 142
R- (1891) 3 Ch. 467 346

Mason, In re, L.
Masonic Ben. Assn. v. Bunch, 109 Mo.
560

 

Masonic Mut. Assn. v. Jones, 154 Pa,
St. 107

Masonic Mut. Ben. Assn. v. Severson,

Conn.
passey's ee 88 Pa. St. 470 313
os v. Massie, 54 Tex. Civ. App. a0
ale tacos v. Townshend, 123 N. Y. — oy

Mastick v. Superior Court, 94 Cal. Bay 460

Matheney’s Estate, In re, 121 Cal. 267 62
Mather v. Mather, 103 Ill. 607 213, 236
Mathews v. Krisher, 59 Ohio St. 562 431
pee eecereety In re, 12 R. I, 145 380
Mathis v. Mathis, 18 N. J. L. 59 139
Matlock v. Lock, 38 Ind. App. 281 235.
Mattison v. Mattison, 53 Ore. 254 950
Mauldin v. Armistead, 14 Ala. 702 344

Maulding -v. Scott, 13 Ark. of
Maurer v. Bowman, 169 Ill. 586
v. Miller, 77 Kans.
Maverick v. Reynolds, 2 Bradf. Sur.
(CN. Y.) 360 84
Maxwell v. Featherston, 83 Ind. 339 309
v. Harper, 51 Wash, 351 5

232, 241
400

v. Hill, 89 ce 584 499
v. Maxwell, fg 5 4H. L. 506 393
Vv. Wettenhall, Wing 27 139
May v. May, 167 %y Ps. 411
ve Slagehter, aA. By Marsh, (Ky.) é
v. Thomas,. a4 S. Car, 158 10
Maybee, In re, 8 Ont. L. Rep: 601 107
Maybury v. Grady, 67 Ala. 147 392
Mayer v. American Bseneity &c. Co., es
v. Hover, 81 Ga. 308 195
Mayhew v. Davidson, 62 N. Car. 47 284
Maynard v. Vinton, 59 Mich. 139 450
Mayo v. Blount, 23 N. Car. 283 202
v. Harrison, 134 Ga. 737 231
v. Jones, 78 N. Car. 402 497
Mayott v. Mayott, 2 Bro. C. C. 125 179
May’s Appeal, In re, 41 Ea, St. 512 311
May’s Succession, 109 94 85

9 2
Meacham v. Graham, 98 Tesi, 190 285, 286
Mead v. Jennings, 46 Mo. 91 351
v. Robertson, 131 Mo. “App. 185 342
Meagleys Een In re, 39 App. Div.

414

m&uings v. Cromwell, 2 Sandf. (N.
Y.) 351 379
Means v. Ury, 141 N. Car. 248 476

Mears v. Mears, 15 Ohio St. 90 500
Mechanics’ &c. Bank v. Harrison, 68

Ga. 463 49
Medlock v. Merritt, 102 Ga, 212 519
Meek v. Briggs, 87 Iowa 610 296, 348
Moh v. Draffen, 137 App. Div. (N. ws
Meeks v. Toftey, 99 Ga. 170 53

Meier v. Lee, 106 Iowa Pre
Meiners v. Meiners, 179 Mo, 614 194
Meis v. Meis (N. J. Eq.), 38 ae 369 325
Meister v. Meister, 121 Md. 440 367
a a Estate, In re, 139 Pa. St.

348
Melia v. Simmons, 45 Wis. 334 7
Mellor v. Smyth, 220 Pa. 169

Mellows v. Mellows, 61 N. H. 137 61, a
Melone’s Estate, In re, 141 Cal. 331 "495
Melton v. Camp, 121 Ga. 693 » 828
Melvin v. Proprietors, 5 Metc. (Mass.)

15
Mendel v. Levis, 40 Misc. (N. Y.) 271 394
Mendell v. Dunbar, 169 Mass. 74 450:

Mercantile Bank v. Ballard, 83 Ky.
481 257
Ixvi

TABLE OF CASES

[References are to Sections.]

Mercantile Tr. Co. v. Adams, 95 Ark.
Mercantile Reset ees In re, 156 App.

Div. (N. Y.) 224 36
Mercer v. Mackin, 14 Bush (Ky.) 434 505
Meredith v. Anders, 31 N. Car. 329 351
Merriam v. Merriam, 80 Minn. 254 395

v. Simonds, 121 ‘Mass. 198 192
Merrill _v. Bickford, 65 Maine 118 324

v. Hayden, 86 Maine 133 340

v. Morrissett, 76 ae 433 487

v., Rush, 33 N. J. Eq. 537 84
Merriman, In re, 1d Mich, 454 63, 76
Merritt v. Bucknam, 78 Maine 504”

323, 324

v. Corlies, 54 N. Y. St. 215 45

Merritt’s Estate, In re, 62 Mo. 150 414

Merryfield’s Estate, In re, 167 Cal. 729 25
Meserve v. Haak, 191 Mass. 220 306

Messmore v. Stone, 6 Ky. L. 596 414
Messner v. Elliott, 184 Pa. St. 41 526
Metcalf v. Framingham Parish, 128
Mass. 370 157
v. Gladding, 35 R. I. 395 367
v. Sweeney, 17 R. I. 213 182
Methodist Church v. Clark, 41 Mich. fae
8
Maihodist Church Missionary Soc. v.

Ely, 56 Ohio St. 405 497
Metropolitan Sav. Bank v. Murphy,

82 Md. 314 7
Metzen v. ee 202 Til, 275 233
Meyer v. Fogg, 7 Fla. 292° 448, 517, 518

v. Henderson, 88 Md. 585 520, 527

v. Rusterholtz, 23 Ind. Hi phe 569 214
Meyers v. Smith, 50 Kans. 487
Middleton, In re, 68 N. J. Eq. 584 108
Middleton’s Estate, In ré, 212 Ps. 119 194
Middleton’s Will, In re, 72 Iowa 424

493, 495
Mifflin’s Appeal, In re, 121 Pa. St.

205 265

Miles’ Appeal, In re, 68 Conn. 237
52, 464
Miller v. Ahrems, 150 aoe 644 100

v. Carlisle, 90 Ky. 205 176, 193

v. Carr, 94 Ark. 176 530

v. Chittenden, 2 Iowa 315 357

v. Chittenden, t ae 252 99

v. Colt, 32 N. Hg. 6 431

v. Cooch, 5 Del he eae 322, 326

v. Coulter, 156 ty 490, 492

v. Gilbert, 144 _N. 258

v. Harwell, 3 in oh om. eo 194 327

v. Holt, 68 Mo. 584 150

v. Lamprey, 68 N. a 376 223

v. Levi, 44 N. Y. 489 283

v. Livingston, ms Utah 228 530

v. London, 60 N. Car. 628 359

v. Lullman, 81 Mo. 311 5

v. McNeill, 35 Pa. St. yt 442

v. Meetch, 8 Pa. St. 417 372

v. Metcalf, 77 Conn. 176 169, 306, 311

v. Miller, 151 Ky. 563 173

v. Miller, 32 La. enn 437 13, 30

v. Miller, 73 Md. 414

v. Miller, 187 Pa. TEE, 572 526

v. Miller, 99 Va. 662 1205

v. Physick, 24 Ark, 244 5

v. Speight, 61 Ga. 460 486

v. Springer, 70 Pa. St. 269 287

v. Steele, 64 Ind. 79 414

v. Western College, ae a 280 9

v. Williamson, 5 Md. 233
Miller, In re, Del. 477 76

Miller, In re, 28 Misc. (N. Y.)_ 373 509
Miller’s Appeal, In re, 52 Pa. St. 113 173
Miller’s Appeal, In re, 159 Pa. St. 575 523

 

Miller’s Estate, In re, 156 Cal, 119 290
Miller’s Estate, In re, 158 Cal, 420 102
Miller’s Estate, In re, 37 Mont. 545 442

Miller’s Estate, In re, 179 Pa. St. 645 87

Miller’s Estate, In re, 31 Utah 415 521
Mills v. Davison, 54 N. J. Eq. 659 271

v. Joiner, 20 Fla. 479 33

v. Newberry, 112 Ill. ae 307, 336
Milne v. Milne. 17 La. 95
MialeARSger Ve Nee h aed 78 Mo. Hes
Milton v. Kite, 114 Va. 256 33
Milwaukee Protestant ao for Aged

v. Becher, 87 Wis. 78, 435
Mims v. Machlin, 53 $ OB 343, 962

Miner, In re, 146 N, Y. 121 209, 214, 313
Minneapolis Trust Co. v. Menage, 73
Minn. 441 415
Minnich’s Estate, In gh 206 Pa. 405 970
Minot v. Amory, Cush. (Mass.) sh

377
v. Doggett, 190 Mass. 435 306°
vy. Harris, 132 Mass. 528 169°
v. Purrington, 190 Mass. 336 253
v. Winthrop, 162 Mass. 113
Mitchell v. Danforth, 12 Cush. (Mass.)

330
v. Denson, 29 Ala. 327 372

v. Hughes, 3 Colo. App. 43 491, 521
v. Kimbrough, 98 Tenn. 535 50, 76
v. Mitchell, 73 Conn. 303 245
v. Mitchell, 143 Ind. 113 154
v. Mitchell}.3 Md. Ch. 71 327

R. Co., 165 Pa.
v. Stanton (Tex. Civ. Aj 139
aon PP-)»

v. Thorne, 134 N. Y. 536

Vv. Pittsburgh - &e.

174

v. Vest, 157 Iowa 336 183

v. Vickers, 20 Tex. 377 22
Mobley v. Cummings, 35 S. Car. 101 359”

v. Mobley, 85 S. Car. 319 191
Moeller v. Poland, 80 Ohio St. 418 415
Moffett v. Elmendorf, 152 N. Y. 475

191, 1224

Moline v. Carlson, 92 Nebr. 419 33
Malneaux v. Raynolds, 55 N. J. Eq.

308

Mollenkamp v. Farr, 70 Kans. 786 1221
Moloughney, In re, 67 App. Div. (N.

Y.) 148 353
Monarque v. Monarque, 80 N. Y. 320 213
Monday v. Vange, 92 Tex. 428 297, 356
Mondorf, In re, 110 N. Y. 450 108
Monjo v. Woodhouse, 185 N. Y. Ze

3» O15
Monroe v. Barclay, 17 Ohio St. 302° ” 108

v. Huddart, 79 ae r. 569 452

v. Jones, 8 RT 211, 392
Montgomery v. fees 91 Ala. 613 518

v. McPherson, i Miss, 4 804
v. Mallen, Sm, Son. (Miss.)

Montiers Estate, In re, 7' Phila. eed
Moody v. Found, 208 a 78 497, $32
2

v. Walker, 3 Ark,
Bibogrs v. White, 6 Tohne, Ch. (N. Y.)

Moon v. Stone, 19 Gratt. ceo 130 193
Mooney v. Purpus, 70 Ohio St.

195, 692

Mooney’s Estate, In re, 205 Pa. 418 358

Moore v. Alden, 80 Maine 301 395

v. Christian, 56 Miss. 408 412

v. Gary, 149 Ind. 51 245
v. Harper, 27 W. Va. 362
v. Harrison, 26 Ind. ‘App. 408 6
TABLE OF CASES

xvii

[References are to Sections.]

Moore
v. Hegeman, 72 N. Y. 376 349
v. Heineke, 119 Ala. 638
sere 524, 530, pit
v. Littel, 41 N.Y.
v. McFall, 263 Til. 596 a4
Vv. McNulty, 164 Mo. 111 516
v. Miller, 8 ae St. 272 239
v. Moore, 50 N. J. Eq. 554
138, 166, ot
v. Moore, 23 Tex, 637
v. Perry, 42 S. Car. 369 280
v. Sanders, 15 S. Car. 440 296
v. Sinnott, 117_ Ga. 1010 348
v. Spier, 80 Ala, 129 469, 451
v. Stephens, 97 Ind, 271 442, 446, 508
v. Trott, 156 Cal. 353 5
v. Willamette Transp. &c. Co. 7
Ore. 3 492
Moores v. Hare, 144 Ind. cid 254
Mooy v. Gallagher, 36 R. 405 237
Moran v. Lezotte, "54 vias 33 ae

v. Moran, 144 Iowa 451 290
Moran’s Will, In re, 118 Wis. 177 250, aot
Morcel’s Estate, In’ re, 162 Cal. 188 530
Mordecai v. Boylan, 69 ae Car. 365 410

v. Canty, 86 S. Car. 4 523
Moredock v. Moredock, vo gor 163 180
Morell v. Morell, 157 Ind. 179 518

Morey v. Sohier, 63 N. H. 507 ve 464
Morey’s Estate, In re, 49 Hun (N, Y.
608 291
Morffew v. S. F. & S. R. Co., 107
Cal. 587
Mortond v. Dieffenbacker, 54 mee ae
nes v. Dodge, 44 N. a ae ‘08, 492
v. Huggins, 42 Fed. 57
v. Ireland, 1 Idaho ‘786° 467
Vv. Robbins, 152 Ind. 362 192, 286

Moriarty v. Moriarity, 108 Mich. 249 526
Morrell v. Dickey, 1 Johns. Ch. (N. 436

Y.) 153.
Morrill v. Morrill, 53 Vt. 74

499

atone, v. Sickly, 133 N. Y. 456 326

Stokes, 21 Ga, 552 500

Moweizon v. Bartlett, 148 Ky. 833 150

v. Bowman, 29 oe 337 287
v. Clariburg, Gc & C Co, 52 W.

Va. 331 234

v. Lennard, 3 Car. & P. 127 85

v. Schorr, 197 Ill. 554 213, 1206
Morrison’s Estate, In re, 139 Pa. St.

306 190, 192, 312

Morrow v. Morrow, 113 Mo. App. 444 419
v. Saline County, 21 Kans. 484 415
Morrow’s Appeal, Tn re, 116 Pa. St. ea

440 26,
Morrow’s Estate, In re, 204 Pa. see

56, an
Morse v. Blood, 68 Minn. 442
v. Hayden, 82 Maine 227 281, 282, 298
v. Lowe, 182 Mich. 607
v. Macrum, 22 Ore. 229 208
v. Mason, 11 Allen (Mass.) 36 193
v. Morrell, 82 Maine 80 - 357
v. Morse, "42 Ind. 365 521
v. Nantick, 176 Mass. 510 773
v. Thompson, 4 Cush. (aiae5.) 562 ae
Morton v. Hatch, 54 Mo. 396
v. Ingram, 33 N. Car. 4368 448
vy. Morton, 120 Ky. 251 211
v. Onion, 45 Vt. 145 467
v. Woodbury, 153 N. Y. 243 _ 143, 313
Morton Tr. Co. v. Chittenden, 81 Conn.
105
Morville v._ Fowle, se an 109

2
371
Mosely v. Carr, 7 Ga. 3 505

Murphy, In re, 80 App. Div. (N. Y.
3

 

Moss v. Helsley, 60 Tex, 426 307, 308
Mott v. Ackerman, 92 N. Y. 539 376
Moultrie v. Hunt, 23 N. Y. 394 506
Mourain v. Poydras, 6 La. Ann. 151 396
Mousseau’s Will, In re, 30 Minn, 202

nee 496
Mt. Holly Safe ime &c. Co. v. Dea-
con, 79 N. J. Eq. 120 215
Mowatt v. Cites, 7 Paige (y x) Sa 106
Mueller v. Buenger, 184 Mo.
575 er 308
Meulenbere s Appeal, In re, 103 Pa. St. ei

Mubike v. Teidemann, 177 Ill. 606 296
Muldoon v. Trewhitt (Tenn.), 38
W. 109 343
Mulford v. Mulford, 42 N. J. ae 68 410
Mulholland v. Gillan, 25 R. I. 13, 30
Mullanney v. Nangle, 212 Ill. B47 341
Mullany v. Mullany, 4 N. J. Ea. i 230
Mullarky v. Sullivan, 136 N. Y.
ay, 431
Mullen v. Doyle, 147 Pa. St. 512 415

v. McKelvy, 5 Watts jue) 399 50
v. McKeon, 25 R. 108.
Mulligan _v. Leonard 46 fs 692 22, 454
Mullin, In re, 110 Cal. 252 127, 443, 445
Mulvane v._ Rude, 146 a ave 232; 237
Mundy v. Mundy, 15 N. J. Eq. 290
54, 445, 449, 464
Munnikhuysen v. McGraw, 35 Md. 286 441
Murchison v. Whitted, 87 "N. Car. 465 286
urff v. Frazier, 41 "Misc. 408 402
Murfield’s Will, In re, a Iowa 479

446, sae 479, 480
Murphy v. Caslin, 113 Mo. oF
v. Delano, 95 Maine a

v. McKeon, 53 N. J. Eq. 406 306
v. Murphy, 23 Ky. L. 1460 517
v. Nett, 47 Mont. 38 83

287

v. ‘Sisters, 43 Tex. Civ. App. 638 )

222
MMurpreye Estate, In re, 184 Pa. St.

4
Murray v. Cannon, 41 Md. 466

v. Miller, 178 N.Y. 316 340, 352

v. Murray, 5 Ohio Dec. (Reprint) |
v. Oliver, 41 N. Car. 55 479

Murry v. Hennessey, 48 Nebr. 608
517, 518, 526
v. Murry, 6 Watts (Pa.) 353 50, 153

Mutual Benefit iis Ins. Co. v. Tis-

dale, 91 U._S. 492
Mutual Life Ins. e v. Shipman, 108

N. Y. 19 367

v. Tillman, 84 Tex. 31 505

Myers v. Hauger, 98 Mo. 433 3

530
v. Myers, 33 Ala. 85 140, 396
v. Norman, 20 Ky. L. 343 211

v. Safe Deposit &c. Co. 73
413

376
v. Vanderbelt, 84 Pa. St. 510 150:
Myers? Appeal, Tn re, 62 Pa. St. 104 400

Myers’ Estate, In re, 69 N. J. Eq. 793 523
Myers’ Estate, In re, 48 Pa. St. 26 208

N

Tage v. Hirsch (Ind. App.), 108 N. E. a6

ie tee v. Trimmier, 56 Ga. 600 33
Nash v. Nash, 12 Allen (Mass.) 345 256
% Ober, 2 App. D. 04 396

. Simpson, 78 Maine 142 288

% Taylor, 83 Ind. 347 321
xviii

TABLE OF CASES

[References are to Sections.]

Nashville First Nat. Bank v. Nashville

Trust Co, (Tenn. Ch.), 62 S. W, 392 292
Nason v. First Bangor Christian

Church, 66 Maine 100 185, 189
Nat v. Coons, 10 Mo. 543 43

National Bank of Commerce v. Smith
(CR. 1.), 24 Atl. 273
National Exchange Bank v. Watson, 13

R. I. 90
National Safe Deposit &c. Co. v.
Sweeney, 3 App. (D. C.) 401 495, 527
Naylor_v. Arnitt, 1 Russ. & Myl. 501 378
v. Godman, 109 Mo. 543 286
v. Shelton, 102 Ark. 30 33

Neal v. Lamar, 18 Ga. 746 399

v. Patten, 40 Ga. 363 392
Needham v. Gillett, 39 Mich. 574 2
Neely v. Phelps, 63 Conn. 251 359

Neer v. Cowhick, 4 Wyo. 39 25

Neff’s Appeal, 57 Pa. St. 91

Negus v. Negus, 46 Iowa 487

Neilson v. Bishop, 45 N. J. Eq. 473
v. Brett, 99 Va. 673 174
v. Lagow, 12 How. (U. S.) 98

Neimand v. Seemann, 136 Iowa 713 532
Neistrath’s Estate, In re, 66 Cal. 330 325
Nellis v. Rickard, 133 Cal. 617 350
Nelson v. Moore, 36 N. Car. 31 194
v. Nelson, 57 N. J. Eq. 118 222
v. Pomeroy, 64 Conn. 257 201
v. Potter, 50 N. J. L. 324 506
Nelson, In re, 141 N. Y. 152 . 449
Nester v. Nester, 68 Misc. (N. Y.)
207 170
Neubert v. Colwell, 219 Pa. 24 286

8
Nevin’s Estate, In re, 192 Pa. Shee
Nevitt v. Woodburn, 190 Ill. 283 273, 290

Nevius v. Gourley, 95 Ill. 206 892
Newberry v. Hinman, 49 Conn. 130 306
Newbold v. Boone, 52 Pa. St. 167 194
Newcomb v. Newcomb, 108 Ky. 582 506

v. Williams, 9 Metc. (Mass.) 525 410
Newcomb’s Will, In re, 98 Iowa 175 326

Newcombe’s Will, In re, 63 Hun (N.
Y.) 633 5

-) 32
Newell, In re, 10 Hawaii 80 25
Newell’s Appeal, 24 Pa. St. 197

166, 188, 189

New Haven County v. New Haven
Trinity Church, 82 Conn. 378 235, 281

New Jerusalem Church v. Crocker, 7
Ohio C. C. 327

Newlin v. Phillips (Del. Ch.), 60 Atl.
1068 762,

Newlin’s Estate, In re, 209 Pa. 456 466
Newman v. Newman, 152 Mo. 398 415
v. Willetts, 52 Ill. 98 506

New Orleans v. Baltimore, 13 La. Ann.

16 281

v. Hardie, 43 La. Ann, 251 185, 307
‘New Orleans First Congregational
Church v. Henderson, 4 Rob. (La.)

209 95
Newsom v. Thornton, 82 Ala. 402 320
Newsome v. Tucker, 36 Ga. 71 527
Newton v. Seaman’s Friend Soc., 130

Mass. 91 488, 1143
New York Life Ins. & Trust Co. v.

Sands, 24 Misc. (N. Y.) 102 345

New York L. Ins. &c. Co. v. Viele, 161

N, Y. 11 49, 105, 173
New York L. Ins. &c. Co., In re, 139

N. Y. S. 695

- 49
Nicholas v. Adams, 2 Whart. (Pa.) 17 3
v. Kershner, 20 W. Va. 251 63
Nichols v. Allen, 87 Tenn. 131 56
v. Denny, 37 Miss. 59 7

 

Nichols
v. Eaton, 91 U. S. 716
292, 296, 346, 348,
v. Guthrie, 109 Tenn. 535
ve Kingdom Iron Ore Co., 56 N. Y.
61

v. Wentz, 78 Conn, 429 76
Nicholson v. Cousar, 50 S. Car. 206
Nicholson’s Will, In re, 115 Iowa 493
Nickerson v. Van Horn, 181 Mass,

562 56, 954
Nicrosi v. Phillippi, 91 Ala. 299 6
Niederhaus v. Heldt, 27 Ind. 480
Rughongale Burrell, 15 Pick, (Mass.)

v. Phillips, 29 R. I. 175
Nilson’s Estate, In re, 81 Nebr. 809
Nimmons v. Westfall, 33 Ohio St. 213
Nix v. Bradley, 6 Rich. Eq. (S. oe

43 01, 297
Noble’s Appeal, 39 Pa. St. 425
Noecker v. Noecker, 66 Kans, 347 63

356
285

Noel v. Harvey, 29 Miss. 72 371
Nolan v. New, 31 La. Ann. 552 103
Noland v. Chambers, 84 Ky. 516 101, 354
Norcum v. D’Oench, 17 Mo. 98 341
Norris v. Clark, 10 N. J. Eq. 51 207

v. Hensley, 27 Cal. 439 237, 244

age harapeoe v. Smith, 11 Metc. (Mass.)

0
North Carolina Inst. for Education of
Deaf, &c., v. Norwood, 45 N. Car.

North's Goods, In re, 6 Jur. 564 31
Norwood v. Mills, 3 Ohio Sup. & C. P.
Dec. 356
Notes v. Doyle, 32 App. D. C. 413
445, 452,
ase v. Vannoy, 6 Jones Eq. (N. Car.)

Noyes v. Southworth, 55 Mich. 173
Noye’s Estate, In re, 40 Mont. 178

10, 75, 77, 440
Noyes, In re, 40 Mont. 190 25, 453
Noyes’ Will, 61 Vt. 14

Nugent v. Cloon, 117 Mass. 219 365, 372
Nunn v. Lynch, 73 Ark. 20 504
Nunnery y. Carter, 58 N. Car. 370
Nusly v. Curtis, 36 Colo. 464 61, 136, 139

oO

Oberndorf_v. Farmers Loan & Trust
Co., 71 Misc. (N. Y.) 64 _
O’Brien v. Galagher, 25 Conn. 229
O’Callaghan v._ O’Brien, 116 Fed. 834
Occleston yv. Fullalove, L. R. 9 Ch.

147
O’Connor’s Will, In re, 65 Misc. (N.

Y.) 4 22,
Odell v. Odell, 10 Allen (Mass.) 1 -
271, 272, 346,
v. Rogers, 44 Wis. 136
Odom v. Thompson, 8 N. Car. 58 509, 523
v. Thompson, 9 N. Car. 5
O’Donnell v. McCann, 77 N, J. Eq. 188
Oertle, In re, 34 Minn, 173
Oetjen v. Diemmer, 115 Ga. 1005

26, 233,
U’Fallon v. Tucker, 13 Mo. 262
O’Ferrall v. Simplot, 4 Iowa 381 21
Offutt v. Offutt, 3 B. Mon. (Ky.) 162
Ogden v. Pattee, 149 Mass. 82
Ogier’s Estate, In re, 101 Cal. 381
Ogle v. Reynolds, 75 Md. 145 368, 370
ore v. Crowly, 80 N. J. Eq.
TABLE OF CASES

[References are to Sections.]

O’Gorman’s Estate, In re, 161 Cal. 654
7, 206

Ogsbury v. Ogsbury, 115 N. 290 212
Oluagents’ Will, Ia'26, 73 Wis. 78 528

O’Hara v. Dudley, 95 N. 403

Ohio Oil Co. v. eee 240 Ill. 361 378

Ohio State University v. Folsom, 56

Ohio St. 701 78
Olcott v. Tope, 213 Ill. 124 431
Old_ Colony Trust Co. v. Bailey, 202

Mass. 283 485
Oldham v. York, 99 Tenn. 68 212

Olivier v. Blanca, 2 La. Ann. 517 108
Olmstead v. Webb, 5 App. D. C. 38 495
Olney v. Balch 154 ee a 368, 372

v. Bates, 3 Drew Ch. 310
Olson v. Court of Hanes "100 Minn,

117 533
Olson’s Will, In re, 63 Iowa 145 487

Onderdonk v. etenimatts 62 How. Pr.
(N. Y.) 3 374
v. Onderdonk, i37 N.Y. ae
296, 435

O’Neil v. Beall, 10 B. Mon. (3 272 419
O'Neal Vv. Farr, 1 Rich, L. (S. Car.) ea
O’Neil’s Will, In re, 91 N. Y. 516 440
Onondaga eee &c. Co. v. Price, 87

N. Y. 542 381
Opel v. Shoup, 100 Iowa 407 96, 288
Orgherd v. David, 6 B. Mon. (Ky.)

463
Orchardson v. Cofield, 171 Ill. 14 83, 86
O'Reilly v. Nicholson, 45 Mo. 160 287
Orgain v. Irvine, 100 Tenn. 193 153, 440
O’Riley v. McKiernan, 90 Ky. 116 355
Ormiston v. Olcott, 84 N. Y. 339 390, 414
Ormsby v. Webb, 134 U. S. 47 491, » out

08

Orr v. O’Brien, 55 Tex. 14

v. Yates, 209 Ill, 222 413
Orrick v. Boehm, 49 Md. 72 231
Ortmayer v. Elcock, 225 Ill. 342 241

Osborn v. Cook, 11 Cush. (Mass.) 532 25
Osborne v. Gordon, 86 bee 92 365, 372

v. Leak, 89 N. Car 495
v. Taylor, 12 Gran, wh) 117 281
Osenton v. itliott 73 _W. Va. 519 189
Osgood v. Bliss, 141 M Mass. 474 369
v. Breed, 12 Mass. 525 76
Ve Franktin, 2 Johns. Ch. (N.
Ys) 1 371
v. Rogers, 186 Mass. 238 721
Ostrander v. Davis, 191 Fed. 156 469
Otjen v. Frohbach, 148 Wis. 301 236
Otterback v. Bohrer, 87 Va. 548 193
Otto v. Doty, 61 Iowa _23 5, 506, 524
Otts v. Otts, 80 S. Car. 1 55
Ouachita Papunt College e Scott, 64
Ark, 349 83
Oulg. v. Washington Hospital, 95 U. S. Bee

oO : an . Outcalt, ae N. J. Eq. 500 312
Outland Outland, 118 N. Car. 138 a

Overton v. Davy, 20 Mo. 273 94
y. Lea, 108 Tenn. 505 296
Owen v. ‘Ellis, 64 Mo. a 380
v. Tankersley, 12 Tex. 287
Owens v. Bennett, 5 Harr, Gao 367 444
v. Sinklear, 110 Mo. 527
Owings v. Bates, 9 Gill. (Md.) 463 2
Owsley v. Harrison, 190 Ill. 235 268
Oyster v. Orris, 191 Pa. St. 606 245
P
Pace v. Pace, 73 N.' Car. 119 356

* Packard v. Kingman, 109 Mich. 506 14
Packer v. Packer, 179 Pa. St. 580 50

 

Packer’s Estate, In re, 164 Cal. 525
Packer’s Estate, In re, 246 Pa, 116
Padfield v. Padfield, 68 Ill. 210

Page v. nore e Bublic Library Assn.
g g HL. 578 Ty “9 1

ve Foust, 3 N. Car. 447

v. Frazer, 14 Bush (Ky), 205

v. Page, 2 Rob. (Va.) 424
Page’s Estate, In re, 75 Pa. St. 87
Paget v. Melcher, 156 N. Y. 399
Paine v. Barnes, 100 Mass. 470

v. Forsaith, 84 Maine, 66
Palmer v. Dent, 2 Robt. aeeels 284
Dunham, i25 N.Y, 190,
. Holford, 4 Russ. 403
. Horn, 84 N.Y. 516
. Matthews, 33 a, Supp. 72
» Moore, 82 Ga.
. Owen, 229 Til. Ws
Stevens, 15 Gray (Mass.) ae
Palmer’ s Will, In re, 42 Misc. (N. Y

Pacand v. Jones, 1 Cal. 488 400,
Parish v. Ulich, 69 Pa. St. 177

daddseasd4

Parker _v. Bogardus, 5 N. Y. 309
v. Churchill, 104 Ga. 122 192,
v. Day, 155’N. Y. 383 397, 414,

v. Hill, 85 Ark. 363
Vv. Parker, 5 Metc. (Mass.) 134
v. Parker, 123 Mass, 584 281,
v. Wilson, 98 Ark. 553
Parker, In re, 16 Ch. Div. 44
Parks v. American pane Missionary
Soc., 62 Vt.
v. Robinson, 138 ne on 269
Parnell v. Thompson, 81 Kans. 119

151,
Ea v. Jewell, 57 Tex. Civ. App.

Parrott _v. Einoeet: | 64 Ga. 332

v. Kelly, 79 Ky. 490
Parry’s Estate, In re, 188 Pa. St. 33
Parsons v. Balson, 129 Wis. 311

v. Kinser, 3 Lea (Tenn.) 342

v. Lance, 1 Ves. 189

v. Millar, 189 Ill. 107

v. Parsons, 2 Greenl. Ciaie) 298
Paschal v. Acklin, 27 Tex.
Patch v. White, 1 Mackay ren D. C.)

468
v. White, 117 U. S. 210
Patchen v. Patchen, 121 N. Y. 432
Pate v. Bushong, 161 Ind. 533 203,
v. Pierce, 4 Coldw. (Tenn.) 104
Tacereon v. Ellis, 11 Wend. (N. Y.)
9

*
Paton y. Robinson, 81 Cost 547
Paton, In re, 111 N.Y 176,
Patrick v. Patrick, 438 Ky 307
Patten v. Cilley, 67 N. H. 520
v. Herring, 9 Tex. Civ. App. 640
32

v. Tallman, 27 Maine 17
Patterson v. Devlin, McMull. Eq. (S.

Car.) 459
vs Earhart, 6 Ohio S. & C. P. Dec.

v. Gaines, 6 How. 8.) 550

v. Hickey, 32 Ga.

v. Patterson, 59 N. v 574

v. Ransom, 55 Ind. 402

vy. Snell, 67 Maine 559
Patterson’s Estate, In re, 173 Pa. 185
Patton v. Ludington, 103 Wis. 629

252, 254, 310,

v. Patton, 39 Ohio St. a
Patty v. Goolsby, 51 Ark. 57,
Paul v. Ball, 31 Tex. 0°

Ixix

215
Ixx

TABLE OF CASES

[References are to Sections.]

Paul

v. Philbrick, 73 N. H. 237

v. Williams, 59 Hun (N. Y.) 625
Paulson’s Will, In re, 127 Wis, 612

293
Pawtucket_v. Ballou, 15 R. I. 58 A
Paxson’s Estate, In re, 221 Pa. 98 78

285
347

Payne v. Payne, 54 Ark, 415 449
Payne’s Succession, 25 La. Ann. 202 524
Peabody v. Tysziewicz, 191 Mass. 317 353
Peake v. Jamison, 6 Mo. App. 590 339

v. Jenkins, 80 Va. 283 9;

Peale v. Ware, 131 Ga. 826 498
Pearce _v. Savage, 45 Maine 90 351

v. Rickard, 18 R. I. 142 173
Pearl v. Lockwood, 123 Mich. 142 295
Pearson v. Wartman, 80 Md. 528 326
Pearson’s Will, In re, 113 Cal. 577 185
Pease v. Allis, 110 Mass. 157 499

Reasleee Will, In re, 73 Hun (N. Y.)

Peck v. Cary, 27 N. Y. 9
vy. Vandemark, 99 N. Y. 29 6

Peckham v. Lego, 57 Conn. 553 237

v. Newton, 15 R, I. 321 187
Pedrick v. Pedrick, 50 N. J. Eq. 479 9894
Peebles v. Acker, 70 Misc. 356 26

v. Graham, 128 N. Car. 218 202
Peet v. Peet, 229 Ill. 341 1186
Peet’s Estate, In re, 99 Iowa 314 324
Peirce v. Peirce, 195 Pa. St. 417 378
Peirsol v. Roop, 56 N. J. Eq. 739 208, 233
Pell v. Mercer, 14 R. I. 412 347
Pellizzarro v. Reppart, 83 Iowa 497 355

Pembroke Academy v. Epsom School

Dist., 75 N. H. 408 38
Pender y. Dicken, 27 Miss. 252 7
Pendleton v. Kinney, 65 Conn, 222 191

v. Larrabee, 62 Conn. 393 431
Penfield v. Tower, 1 N. Dak. 216 45
Penn v. Folger, 182 Ill. 76 390

v. Penn, 120 Ky. 557 2
Pennel v. Weyant, 2 Harr. (Del.) 501 506
Pennington v. Seal, 49 Miss. 518 415
Penniman’s Will, In re, 20 Minn, 245 a6

465
Pennsylvania Co.’s Appeal, 109 Pa. St.
489 2

1203
98, 271
96

y
Penny v. Croul, 76 Mich. 471
People v. Folsom, 5 Cal. 373
v. Powers, 147 N. Y. 104
v. St. Patrick’s Cathedral, 21 Hun
4.

Pennsylvania Land Co. v. Justi, 121
Ky. 765 ’

(N. Y.) 18
People’s Loan &c. Bank v. Garlington,
54 S. Car. 413 351, 419

People’s Trust Co. v. Flynn, 44 Misc.
CN. ¥.) 6

. ¥. : 43
Peoria Humane Soc. v. McMurtrie, 229
Til. 519 470, 1184

Pepper’s Estate, In re, 148 Pa. St. 5
Pepper’s Appeal, I 120 Pa. St”
epper’s Appeal, In re, a, St.
235 375, 376
Peralto v. Castro, 6 Cal. 354
Perdue v. Perdue, 124 N. Car. 161
Perea v. Barela, 5 N. Mex. 458

323

214, 446

Perez v. Perez, 59 Tex. 322 503
Perkins gt Nat. Bank, 81 Miss, 98

3
v. Fisher, 59 Fed. 801

273

v. George, 45 N. H. 453 50

v. Lewis, 41 Ala. 649 411, 419

v. Mathes, 49 N. H. 107 139

v. Perkins, 39 N. H. 163 526
Perrin v. Lyon, 9 East 170 288
Perrine v. Petty, 34 N. J. Eq. 193 390

 

Perrine

v. Vreeland, 33 N. J. Eq. 102
Perry v. Bowman, 151 Ill. 25

v. Brown, 34 R. I. 203

v. Maxwell, 17_N. Car. 488

v. Perry, 110 Ky. 16
Peter v. Beverly, 10 Pet. (U. S.) aoe

D
Peters v. Siders, 126 Mass. 135
Pettigrew v. Pettigrew, 207 Pa. 313
Pettit v. Black, 13 Nebr. 142

485, 486, 488, 495,
Petty v. Ducker, 51 Ark. 281
Peynado v. Peynado, 82 Ky. 5_
Pfender v. Depew, 136 App. Div. (N.

Y.) 636
ae v. Dolfinger (Ky.), 20 S. W.
34

Pflugar v. Pultz, 43 N. J. Eq. 440
forr, In re, 144 Cal. 121
Pfuelb’s Estate, In re, 48 Cal. 643
Phayer v. Kennedy, 169 Ill. 360
Phelps v. Bates, 54 Conn. 11
v. Harris, 101 U. S. 370
v. Phelps, 143 Mass. 570 180,
v. Robbins, 40 Conn. 250 32),
Philadelphia v. Fox, 64 Pa. St. 169
v. Girard, 45 Pa. St. 9 272, 281,
Philbrick v. Spangler, 15 La. Ann. 46
Phillipe v. Clevengor, 239 Ill, 117
Phillips v. Brown, 16 R. I. 279
v. Clark, 18 R. I. 627
v. Duckett, 112 Ill. App. 587
v. Ferguson, 85 Va. 509
v. Grayson, 23 Ark. 769
. Harrow, 93 Iowa 92
. Heldt, 33 Ind. App. 388
. Lowther, 111. Ga. 852
- Moore, 100 U. S. 208
. Phillips (Del. Ch.), 91 Atl. 452
v. Stewart, 59 Mo. 491 371,
Phillips, In re, 98 N. Y. 267
Phillips’ Estate, In re, 205 Pa. St. 504
Phillips’ Estate, In re, 133 Pa. St. 426
eEpe Estate, In re, 10 Pa. Co. Ct.
Pig inebiten v. Bruch, 37 N. J. Eq.

Phinizy v. Foster, 90 Ala. 262 176,
v. Wallace, 136 Ga. 520
Phipps v. Ackers, 9 Cl. & F. 583
Piatt v. Sinton, 37 Ohio St. 353
Pickens v._ Davis, 134 Mass. 252
Pierce v. Knight, 182 Mass. 72
v. Phelps, 75 Conn. 83
v. Pierce, 46 Ind. 86
v. Pierce, 38 Mich. 412
v. Root, 86 Conn. 90
v. Simmons, 17 R. I. 545
Pierce, In re, 20 R, I. 380
Pierce’s Estate, In re, 56 Wis. 560
Pike v. Collins, 33 Maine 38
v. Stephenson, 99 Mass. 188
Pimel v. Betjemann, 183 N. Y. 194
Pine v. Callahan, 8 Idaho 684
Pingrey v. National L. Ins. Co., 144
Mass. 374
Pinkham v. Blair, 57 N. H. 226
Pinney v. Newton, 66 Conn. 141
Piper v. Moulton, 72 Maine 155

367,

288,

dae

477,

22,

336, 448,
Pirrung v. Pirrung, 228 Ill. 441
Pittengel v. Boynton, 139 Mass. 244
Pitts v. Melser, 72 Ind. 469 486,
v. Milton, 192 Mass. 88
Plant v. Donaldson, 39 App. D. C. 162
ve ACH OR 52 App. Biv. (N. Y.)
TABLE OF CASES

[References are to Sections.]

Plate’s Estate, In re, 148 Pa. St. 55 442
Pleasants v. McKenney, 109 Md. 277 523
Plume v. Beale, 1 P. Wms. 388 500
Plumel’s Estate, In re, 151 Cal. 77
25, 32, 453
Plummer v. Coler, 178 U. S. 115 ae
v. Shepherd, 94 Md. 466 169, 190, 191
Plymouth Society v. Hepburn, 57 Hun
(N. Y.) 161 97
Pohlman v. Pohlman, 150 Ky. 679 215
Pollard v. Barkley, 117 Ind. 40 397
v. Merrill, 15 Ala. 169 101
Pollock v. Farnham, 156 Mass. 388 311
‘Glassell, 2 Gratt. SVE) 439 152
Bening v. Lewis, 14 R. 419
Pond v. iarets 10 Paize ‘cht "oN, May _
v. ee. 132 Til, 312 33
Ponton v. McLemore, <a ah Car. ap 354
Pool v. Bae 53 Ill. 101, 354
v. Pool, 35 Ala. 13 108, 500
Poor v. Bradbury, 196 Mees 207 980
v. Considine, 73 U. S. 458 250
v. Robinson, 10 Mis.” 131 66
Poore v. Poore, 55 Kans. 687 446
Pope v. Cutler, 34 Mich. 150 506
v. Elliott, 8 B. Mon. (Ky.) 56 348
v. Pope, 95 Ga. 87 478
Pope’s Estate, In re, 83 we 723 396
Poplin v. Hawke, 8 N. H 508
Poppleton’s Estate, In a 3a oe aie
?
Porschet v. Porschet, 82 Ky. 108
Porter v. Howe, 173 Mass. Tes 395
Porter, In re, 20 D.C. 493 445
Porter’s Appeal, 94 Pa. St. 332 433
Portland Trust Co. v. Beatie, 32 Ore.
3905 212
Bere wONtt v. Shackford, 46 N. H. a7
>
Posey v._ Posey, 3 Strob. 167 582
Post v. Jackson, 70 Conn. 283 195
v. Rohrbach, 142 Ill. 600 273
Pott v. Pennington, 16 Minn. 509 506
Potter_v. Couch, 141 U.S. ae 296, 351
v. Eames, 70 Misc. (N, 147 367
v. Gardner, 12 Wheat. . S.) 498 324
v. McAlpine, 3 Dem. Sur. (N. Y.)
108 400
v. Nixon, 81 N. J. Eq. 338 240
Potts v. Breneman, 182 Pa. St. 295 370
v. House, 6 Ga. 324 85
v. Terry, 8 Tex. Civ. App. 394 412
Pottstown Hospital v. New York Life
Ins. &c. Co., 208 Fed. 196 78
Poultney v. Tiffany, 112 Md. 630 251
Pounds v. Dale, 48 Mo. 270 103
Powell_v. Cobb, 56 N. Car. 456 354
v. Cosby, 89 8. W. 721 285
v. Hurt, 108 Mo. 507 414
v. Meyers, 64 S..W. 428 6
v. Powell, 30 Ala. 697 50
v. Powell, 41 N. Car. 50 392
v. Woodcock, 149 N. Car, 235 207
Powell’s Estate, "In re, 138 Ee St. 322 141
Power v. Hafley, 85 Ky. 05
Powers v. Scharling, 64 ae: 339 150
P’Pool v. P’Pool, 121 Ky. 588 476
Prater v. Miller, 25 Ala. 320 519
v. Whittle, 16 S. Car. 40 500
Prather v. McClelland, 76 Tex. 574 533
Pratt v. Douglas, 38 N. J. Eq. 516
41, 47, 49
v. Flamer, 5 Harr. & J. (Md.) 10 106
v. Pratt, 161 Mass. 27 62
v. Sheppard & ee Pratt Hos-
pital, 88 Md. 610 340

Pray v. Belt; 1 Pet. (U. S:) 670

432

 

Pray
v. Hegeman, 92 N. Y. 508 346
v. Waterston, 12 Metc. (Mass.) 262 57
Bicaeners Aid Soc. v. Rich, 45 Maine 26
Prentis v. Bates, 93 Mich. 234 526
pane ytsr ea Church v. McElhinney, 61 203

540
v. Yeranle 159 Til. 215 55, 66
President &c. of Yale University, In re,

67 Conn, 237

Preston v. Fidelity Trust &c. Co., 94
Ky. 295 516

v. Foster, 75 Conn. 709 189

v. Howk, 3 App. Div. (N. Y.) 4 189
Prevost v. ‘Martel, 10 Rob. (La.) S12 106
Price v. Baws, 1 Brad. Surr. (N. Y.) ee

v. Ose 87 Mo. eet 367, 379

v. Price, “a N. J. Eq. 322
Price, In re, L. R. (1900) ‘ sch, Div.

442 49
Paces Appeal, In re, 169 Pa. St.

294 214, 215
Prickett v. Leonard, 104 N. Car. 326 212
Priest v. Lackey, 140 Ind. 399 212
Primmer v. Primmer, 75 Iowa 415 83
Prince v. Barrow, 120 Ga. 810 341, 355

v. Hazleton, 20 pole ao Y.) 502 454

v. Prince, 64 Wash. 33, 470
Prior v. Talbot, 10 Cush *(Mass.) 1 411
Prison Assn. of Va. v. Russell, 103 Va.

563 1229
ee v. Digi low, 57 Kans. 119 350
Propst v. Mathis, 115 N. Car. 526 505
Provenchere’s Appeal, 67 Pa. St. 463 253

Providence Rubber Co. v. Goodyear, 76
U.S. 788 222

Prowitt v. Rodman, 37_N. Y. 42 176
Pruden v. Paxton, 79 N. Car. 446 240
Prutsman v. Baker, 30 Wis. 644 5
Pugh v. Pugh, 105 Ind. 552 176, 193
Pulitzer v. Livingston, 89 Maine 359
265, 268
Pulliam v. Pulliam, 10 Fed. 53 396
Pulling, In_re, 93 Mich. 274
Bigs ve Purcell, Riley Eq. (S. Car.)
Purdy v. Davis, 13 Wash. 164 431
v. Evans, 156 Ky. 342 75
Eula v. Putnam, 4 Bradf. Surr.
(N. Y.) 308 240
Putnam Free School v. Fisher, 30
Maine 523 368, 371, 419
Q
Quinby v. Frost, 61 Maine 77 321
Quincy v. Attorney-General, 160 Mass.
431 98
Quinn v. Shields, 62 Iowa 129
338, 448, 863
R
Raab, In re, 79 Misc. (N. Y.) 185
: 191, 253
Rackemann v. Taylor, 204 Mass. 394 41
Radovich’s Estate, In re, 54 Cal. 540 325
Ragan v. Hill, 72 Ark. 307 3
Ragland v. Huntingdon, 23 N. Car.
561 450
Ragsdale v. Ragsdale, 68 Miss. 92 342

Raiford v. Raiford, 6 Ired. Eq. (N.
Car.) 490 4

Rainey v. Ridgway, 148 Ala. 524 518

Ralston v. Truesdell, 178 Pa. St. 429 835
Ixxil

TABLE OF CASES

[References are to S' ections.]

Ralston’s Estate, In re, 1 Chest. Co.
Rep. (Pa.) 482

Ramsdeli v. Ramsdell, 21 Maine 288

Ramsey v. Stephenson, 34 Ore. 408

2 5,
Randall v. Beatty, 31 N. J. Eq. 643
Ys J. Eq oe

v. Gray, 80 N._J. Eq.
v. Morgan, 12 Ves. Jr. 69

vy. Randall, 135 Ill. 398 340,
Randolph v. Lampkin, 90 Ky. 551

vy. Randolph, 40 N. J. Eq. 73
Rand’s Estate, In re, 61 Cal. 468 25,

Rankin v. Rankin, 36 Ill, 293
vy. Rankin, 6 B. Mon. (Ky.) 531
v. Rankin, 31 N. Car. 156 503,
Teasing Etats In re, 13 Pa. County
t.

Ransdell v. Moore, 153 Ind. 393
Ransdell v. Boston, 172 Ill. 439 282,
Ransome v. Bearden, 50 Tex. 119
Rash v. Purnell, 2 Har. (Del.) 448 .
Rasquin v. Hamersley, 152 App. Div.
CN, ¥.) 4 173

2
Ratcliffe v. Sangston, 18 Md. 383
Harapene vy. Hamilton, 4 App. D. C.

4

Ratto, In re, 149 Cal. 552

Raub v. Carpenter, 187 U. S. 159

Raudebaugh v. Shelley, 6 Ohio St. 307

Raupp, In re, 10 Misc. (N. Y.) 300

Rausch,. In re, 35 Minn, 291

Rayoratt y. Johnston, 41 Tex. Civ. App.
4

6 5

Raymond v. Sellick, 10 Conn. 480

vy. Wagner, 178 Mass. 315
Read v. Watkins, 11 Lea (Tenn.) 158
Rendmen v. Ferguson, 13 App. D. C.

6
Reagan v. Stanley, 11 Lea (Tenn.) 316
Records v. Fields, 155 Mo. 314 190,
Reddick v. Lord, 131 Ind. 336
Redding v. Rice, 171 Pa. St. 301
Redfield v. Marvin, 78 Conn. 704
Redfield’s Estate, Tn re, 116 Cal. 637
Redmond v. Burroughs, 63 N. Car. 242

v. Collins, 4 Dev. L. (N. Car.) 430
Reed v. Davis, 95 Ga. 202

v. Hazelton, 37 Kans. 321

v. Head, 6 Allen (Mass.) 174

v. Reed, 53 Maine 527

vy. Reed, 9 Mass. 372

v. Watson, 27 Ind. 443

vy. Woodward, 11 Phil. (Pa.) 541
Reed’s Estate, In re, 82 Pa. St. 428
Reed’s Estate, In re, 10 Pa. Dist. 162
Reese v. Ivey, 162 Ala. 448

ve aS Court of Newport, 9 R.

. 434
Reeve v. Beekman, 42 N. J. Eq. 613
Reeves v. Craig, 60 N. Car.
vy. School Dist., 59 of L. 24 Wash.

282
Redfeld v. Bellette, 14 Ark. 148
Reformed Dutch Church v. Brandow,
52 Barb, (N. Y.) 228
Reformed Presbyterian Church v. Mc-
: Millan, 31 Wash. 643
v. Nelson, 35 Ohio St. 638
Reid v. Borland, 14 Mass. 208
vy. Corrigan, 143 Ill. 402 322;
vy. Gordon, 35 Md. 174
v. Walbach, 75 Md. 205 256, 308,
Reid, In re (Del.), 64 Atl. 822
Reiff v. Horst, 52 Md. 255
Reiff’s Appeal, In re, 124 Pa, St. 145
Reilly v. Bristow, 105 Md. 326

 

Reilly

v. Union Protestant Infirmary, 87
Md. 664 166,
Reimete Estate, In re, 159 Pa. St.
Reinders v. Koppelman, 94 Mo. 338
Reisenberg, In re, 116 Mo. App. 308 171
Reith’s Estate, In re, 144 Cal. 314
338, 351, 355, 960
Rembert v. Vetoe, 89 S. Car. 198 173

ReGen vy. Metro. Sav. Bank, 76

167

209
169

o.
Renn v. Samos, 33 Tex. 760 498
Renner v. Williams, 71 Ohio St. 340 284
Reuff v. Coleman, 30 W. Va. 171 288, 294
Rexford v. Bacon, 195 Ill. 70 1225
Reyle’s Estate, In re, 5 Pa. Dist. 416 49
Reynolds v. Bristow, 37 Ga. 283 78

v. Pettyjohn, 79 Va. 327 415

v. Reynolds, 16 N. Y. 257 321
Reynolds, In re, 124 N. Y. 388 214, 217
Reynolds, In re, 20 R. I. 429 313

Reynolds’ Estate, In re, 175 Pa. St. 257 236
Reynolds’ Will, In re, 20 R. I. 429

76, 308

Rhoads v. Rhoads, 43 Ill. 239 77, 103
Rhode Island Hospital Trust Co. v.

Keith, 26 R. I. 42 466
Rhodes v. Rhodes, 3 Sandf. Ch. (N.

Y.) 279 33

Rhyne v. Torrence, 109 N. Car. 652 463
Rice v. Boston Port &c. Aid Soc.,

56 N. 3 194 394

vy. Harbeson, 63 N. Y. 493 392

v. Rice, 68 Ala. 216 8

v. Rice (Iowa), 119 N. W. 714 137

vy. Tilton, 14 Wyo. 101 495
Rice’s Estate, In re, 14 Phila. (Pa.)
4

325
Rice’s Will, In re, 81 App. Div. (N.
Y.) 223

497°
Rich v. Beaumont, 6 Bro. P. C. 152 81
_ vy. Bowker, 25 Kans. 7 532
Richards v. Humphreys, 15 Pick.
(Mass.) 133 434
v. Miller, 62 Ill. 417 169
_v. Richards, 90 Towa 606 295
Richardson v. Fletcher, 74 Vt. 417 489
v. Hall, 124 Mass. 228 128, 217
v. Orth, 40 Ore. 252 33, 77
v. Ranson, 99 Ill. App. 258 394
v. Richardson, 75 Maine 570 345, 775
_v. Stodder, 100 Mass. 528 337
Richardson’s Will, In re, 81 Hun (N.
Y.) 425 509
Richmond v. Davis, 103 Ind. 449 267, 378
v. State, 5 Ind. 334 188, 211
Richter v. Bohnsack, 144 Mo. 516 51
vy. Richter, 180 Ala. 218 62
Rickards v. Gray, 6 Houst. (Del.) 232 286
Ricks’ Estate, In re, 160 Cal. 450 533
Ridley we eeipeais 1 Sneed (Tenn.)
22
v. McPherson, 100 Tenn. 402 173
Riegelman’s Estate, In re, 174 Pa. St.
476 392
Riggin v. West Minster College, 160 —
“Mo. 570 25
Riggs v. Palmer, 115 N. Y. 506 109
v. Sally, 15 Maine 408 238
Righter v. Riley, 42 W. Va. 633 372
Riley v. Riley, 36 Ala, 496 443
_v. Sherwood, 144 Mo. 354 526
Ringot, In re, 124 Cal. 45 410
Ringrose v. Gleadall,-17 Cal. App. 664
43, 358
Riordon v. Holiday, 8 Ga. 79 ” 236
TABLE OF CASES

[References are to Sections.]

* Risk’s Appeal, In re, 110 Pa. St. 171
Ritch v. Talbot, 74 Conn. 137
Rivard v. Rivard, 109 Mich. 98
Rivers v. Rivers, 36 S. Car. 302
Rixey v. Stuckey, 129 Mo. 377
Rixner’s Succession, 48 La. Ann, $52
Roane v, Hollingshead, ae Md. 369
Robards vy. Brown, 167 Mo. 447
Robb v. Robb, 173 ee St. 620

v. Washington = ene on aliens,

103 App. Div. (N. Y.) 327

Robbins v. Hore 50 Colo. 610
- v. Smith, 72 Ohio St. 1

v. Swain, Ind. App. 486
Robbin’s Estate, In re, 89 Misc. (N.

Y.) 345
Roberson v. Roberson, 21 Ala. 273
Robert_v. Corning, 89 N. Y. 225

v. West, 15 Ga. 122 154, 244,
Roberts v. ” Abbott, 127 Ind. 83

v. pianeean, 21 Nebr. 503

v. Hall, 1 Ont. 388

ve Lewis, 153 U. S. 367

v. McMillan, 9 Lea cents 571

v. Roberts, 102 Md. 13

v. Stevens, 84 Maine 338 296, 348,
Robert’s Appeal, In re, 59 Pa. St. 70
Roberts’ Estate, In re, 163 Pa. St. 408
Robertson v. Broadbent, L. R. 8 App.

Cas. 812 136,

v. Brown, 187 Mo. 452

v. Johnson, 24 Ga. 102

v. McGeoch, 11 Paige ans be 640

v. Pickrell, 109 U.

orn, 487, 506
Berean Will, In re, 23 Mise. (N.
Robert’s Succession, 2 Rob. (La.) “ae, a6
Robeson v. Shotwell, 55 N. J. Jat 318 233
Robinson v. Allison, 74 Ala. 254 370
v. Brewster, 140 Ill. 649 150
v. Cogswell, 192 nae a 338, 341
v. Duvall, 27 pop. 2D 535 527, 533
ve Martin, 138 App. “Se, (N. Y.)
310 284
v. Ostendorff, 38 S. Car. 66 230
v. Palmer, 90 Maine 246 306
v. Randolph, 21 Fla. 629 234, 297
v. Raynor, 28 N.Y. 494 33
v. Robinson, 105 Maine 68 380
v. Zollinger, 9 Watts ive) 169 412
Robnett v._Ashlock, 49 ae 171 26
Robson v.: Jones, 3 Del. Ch. 440, 491
Roby v. Smith, 131 tna” 342 350
Roche v. ‘Nason, 105 App. Div. (N. a 1s
256 i
Rochford v. Hackman, 9 Hare 480 292
Rock v. Zimmerman, 25 S. Dak. ay ane
?
Rocker v. Metzger, 171 Ind. 364 2
Rockwell v. Bradshaw, 67 Conn. 8 ane
?
v. Holden, 22 R. I. 244 09
v. Swift, 59 Conn, 289 Ts 40, 291
Rodermund v. Clark, 46 N. Y. 354 519
‘Bangers ve Rodgers, 6 Heisk. (Tenn.) des
Rede ce v. Rodman, 112 wes 378 33
Roe v. Vingut, 117 NY 213, 380
Roe, In re, 82 Misc. n aA) 565 449
Roederer v. Hess, 112 Ky. 807 296
Rogers v. Diamond, 13 Ark. age
» 449, 451
v. Highnote, Fa Ga. 740 241
v. Hinton, 63 N. Car. 78 394
v. Law, 1 Black. Oe S.) 253 291
v. Rogers, 78 Ga. 6 485

 

Rogers
v. Rogers,’ 111 Be & ge
v. Rogers, I R.
v. Stevens, 8 Tad ies
Rogers’ Estate, In re, 94 Cal. 526
Rohrbach_v. Sanders, 212 Pa. 636
Rolfe & pa Asylum v. Lefebre,
69 N. 238
Rican v. Rollwagen, 63 N. Y. 504

85,
Romjue v. Randolph, 166 Mo. App. 87

,

Rood v. Hovey, 50 Mich. 395
Rook v. Wilson, 142 Ind. 24
Roome v. Phillips, 24 N. Y. 463
Root’s Estate, In re, 187 Pa. St. 118
Ropp v. Minor, 33 Grat. (Va.) 97
Rose v. Eaton, 77 Mich. 247

v. Hale, 185 Ill. 378

v. McHose, 26 Mo. 590

v. O’Brien, 50 Maine 188
Rosenau v. Childress, 111 Ala, 214

Ixxiii

6, 257

23
Rosenbaum v. Garrett, 57 N. J. Eq. 186
Ross v. Carpenter, g B. Mon. (Ky.)

v. Conwell, 7 Ind. App. 375

v. Ross, 25 Can, Sup. Ct. he iy
Rossetter _v. Simmons, 6 Serg. &R

(Pa.) 452

Rote v. Warner, 17 Ohio C. C. 342
Rothrock v. Rothrock, 22 Ore. 551 83,
Rothwell v. Jamison, 147 Mo. 601
Roulett.v. Mulherin, 100 Ga. 591
GHEE v. Roundtree, 26 S. Car.

284,
Roush v. Wenzel, 15 Ohio C. C. 133
Routledge v. Dorril, 2 Ves. Jr. 366
Rowland v. Gorsuch, 2 Cox Ch. 187
Rowley v. Sanns, 141 Ind. 179
Roy v. Segrist, 19 Ala. 310
Rubencane v. McKee, 6 Del. Ch. 40
Rubottom v. Morrow, 24 Ind. 202 403,
Ruch v. Rock Island, 97 U. S. 693

Rucker v. Lambdin, 12 Sm. & M.
(Miss.) 230
Ruckle v._Grafflin, 86 Md. 627
Rudd v. Roberts, 146 Ky. 622
Ruddeil v. Wren, 208 Ill. 508 250,
Bradf. Surr.

Ruddon_v. McDonald, 1
N.Y.) 352

a
Rudolph v. Rudolph, 207 Ill. 266
Rudy v. Ulrich, 69 Pa. St. 177
Rudy’s Estate, In ae 185 Pa. St. 359
Ruffin v. Ruffin, 112 N. Car. 102
Ruffino’s Estate, In. re, 116 “Cal. 304
Ruggles v. Randall,
Rumph v. Hiott, 35 S. Car. 444
Runkle v. Gates, 11 Ind. 95

Runyan v. Price, 15 Ohio St. 1

Rush v. Landers, 107 La. 549

Hash County v. Dinwiddie, 139 Ind.

Husnoee v. Rushmore, 59 Hun (N.
Y.) 615

Rusing v. Rusing, 25 Ind. 63
Rusk v. Zuck, 147 Ind. 388
Rusling v. Rusling, 42. N. J. Eq.
Russell v. Allen, 107 U. S. 163
Andrews, 120 Ala. 222

. Bates, 181 Mass. 12

. Elden, 15 Maine 193

. Evans, 3 Houst. eh 103
. Hartley, 83 Conn. 654

. Hartt, 87 N. Y. 19

fe Loring, 3 Allen see gat
. Minton, 42 N. J.

594
166,

490,

sdsseee8

70 Conn. 44 190, i

45

58
422

181

207
232
441
494
518

312
150
269
195
798

495
252
414

66

294
169
233
745

271
*1071

343
210
445
460
506
346
711
Ixxiv

TABLE OF CASES

[References are to Sections.]

Russell
v. Peyton, 4 Ill. App. 473 421
v. Russell, 84 Ala. 48 105, 176, 193
v. Russell, 3 Houst. Eheky 103 527

v. Russell, 36 N. Y. 581 380
v. Switzer, 63 Ga. 711 440

Russell, In re, 168 N. Y. 169
ae 2h ay

Russell’s Estate, In re, eS Cal. we

Rutherfurd, In re, 196 396
Rutt’s Estate, In re, 200 Pa. Bo 22
Ryan v. Egan, 156 Ill. 224 96
Ryder v. Lyon, 85 Conn. 245 338
Ryder’s Estate, In re, 41 _App. Div. (N.

Y.) 247 233
Ryno v. Ryno, 27 N. J. Eq. 522 485
Ss
Saeger v. pode, 181 Til. 514 234
Saint v. Charity Hospital, 48 La. 236 24
St. James v. Bagley, 138 N. Car. 384 187

St. James Church v. Walker, 1 Del.
ee 284

James pigten Asylum v. Shelby,
oe Nebr. 882
St. John v. Andrews, dnstitate. for Girls,
191 N. Y. 77, 78, 185
v. Andrews sie ia Girls, 117
App. Div. (N. Y.) 698 77, 78
v. Dann, 66 Conn. 401
238, 242, 292, 295, 348, 356
St. polars Parish v. Bostwick, 3° App.
452 151, 478, 490, ‘406, 518
St. ee 's Appeal, In re, 34 Conn. 434
+ 492, 494,
St. Mark’s Church v. Teed, 120 N. Y:

583
St: ne oe Church v. Stockton, 8 N. J.

St. Paul's Church v. Attorney-General,
164 Mass. 188 272,
St cl Church v. Brown, 21 R. L

ee v. Huff, 9 Tex. Civ. App. 164
Salter v. Bryan, 26 N. Car. 494 0
Sampson v. Browning, 22 Ga. 293 22, 454
v. Randall, 72 Maine_109 213, 231
Sanborn v. Clough, 64 N. H. 315 392
Sander’s Estate, Tn re, 126 Wis. 660
1 1228
Sanderson v. Sanderson, 52 N. J. Eq.
243 516

Sa v. Old Colony Trust Co., 195
Mass. 575 244

Sanford v. Sanford, 45. N. Y. 723 7

San Francisco &c. "Asylum v. Superior
Ct., 116 Cal. 443 493

Sappingfield v. King, 49 Ore. 102

Sargent v. Burdett, 96 an ga
v. Cornish, 54 N. OH. 350
v. Siler 8 Ohio oe (Reprint)

381

Sartor v. ine 39 Miss. 760 528, 534

Sasse’s Estate, In re, 93 Nebr. 640 393

Satterfield v. Tate, 132 Ga. 256 242
Saunders v. J T. Samarreg Co., 205

Pa. 632 463

v. Saunders, 109 Va. 191 191 193, 736

v. Webber, 39 Cal. 287 373

Savage v. Bowen, 103 Va. 540 449

Savin v. Webb, 96 Md. 504 394

Sawin v. Cormier, 179 Mass. 420 825

Sawyer v. Banfield, 55 N: H. 149 353

v. Freeman, 161 Mass. 543 307

v. Sawyer, 52 N. Car. 134 476

vy. White, 122 Fed. 223 $22

 

Saxton v. Krumm, 107 Md. 393 108-
Scaife v. Emmons, 84 Ga. 619 454
Scales v. Thornton, 118 Ga. 93 22
Scattergood v. Kirk, 192 Pa. St. 263 446

Schaadt v. Mutual L. Ins. Co., 2 Cal.
App. 715 33
Schaeffer v. Messersmith, 10 Pa. County
Ct. 366 283
Schafer v. Eneu, a Pa. St. 304 105, 176
Schaff v. Peters, 111 Mo. App. 447 504
Schaffer v. Mtiews 77 foar "93 6
Schardt v. Schardt, 100 Tenn. 276 61
Schedel’s Estate, In re, 73 Cal. 594
105, 176, 193

Schermerhorn v. Merritt, 123 Mich’ 310° 442
Schieffelin v. Schieffelin’ 127 Ala. = 530
Schierbaum v. Schemme, 157 Mo. 1

449, 531
Schimpf v. Rhodewald, 62 Nebr. 105 236
Schlottman v. Hoffman, 73 Miss. 188 520
Schmaunz v. Goss, 132 Mass. 141 174
Schmidt v. Bomerbach, 64 Ind. 53 518, 525
v. Mitchell, 101 Ky. 570 391
v. Schmidt? 201 Ill, 191 529
v. Schmidt, 47 Minn. 451 530

v. Schmidt, 7 Rich. Eq. (S. Car.)
201 59
Schmidt, In rg, 185 Pa. St. 579 232

Schmidt's Estate, In re, 15 Mont. 117 78
Schnee v. Schnee, 61 Kans. 643

490, 498, 504

Schneer v. Greenbaum, 27 Del. 97 234
Schneider_v. Heilbron, 115 App. Div.

Ny Voy 720 307

v. Holzhauer, 134 Ky. 235
Schnell v. Schnell, 39 tal, oe 556 295
Scholl’s Will, In re, 100 Wis. 650

105, 106, 176

Schorr v. Etling, 124 Mo. 42 62
Schreyer v. rere 101 App. Div.

N. Y.)_456 358

| Schuldt’s Estate, In re, 199 ie 58 253

Schult v. Moll, 132 N. Y. 122 231

Schultz v. Schultz, 10 Grat. We) 358 490

Schultze v. Schultze, 144 Ill. 610
Schumacher v. Schumacher, “ay Tex.

Civ. App. 497 61
Schumaker v. Schmidt, 44 A, 454° 28, 502
Schwab v. Piero, 43 Minn. 520 33
Soltuate v. Hanover, 16 Pick. (Mass.)

4
Scobey v. Gano, 35 Ohio 2 ee 412
Scott v. Farman, 89 Ind. 518

v. Fink, 45 Mich. ie 476

v. Harkness, 6 Idaho 736 25, 453

v. Hawk, 107 Iowa 723 445

v. Herrell, 31 App. D. C. 45 498

ve Kramer, 31 Ohio a 295 281, 295

v. McKee, 105 Ga. 533

v. Maddox, 113 Ga. 5 464, 505

v. Morrison, 5 Ind. 392

v. Riley, 16 Phila. (ee) 106 13, 430

e Thrall, 77 Kans. 688 452

West, 63 Wis. 529 . 420
Scott, In re, 141 Cal. 485 463
Scott?s Estate, In ,re, 128 Cal. 57 526
Scott’s Will, In re, 88 Minn. 386 1159
Scoville v. Mason, 76 Conn. 459 211, 219
Scripps v. Wayne Prob. Judge, 131

Mich. 265 521

In re, 52 Pa. Super.

Scull’s Estate,
Ce 87
Seabright v. Seabright, 28 W. Va. 412 3
Seabrook v. Grimes, 107 Md. 410 357
ear v. Seaburn, 15 Grat. (Va.)
Seaman’s Estate, In re, 146 Cal. 455
440, 444
TABLE OF CASES

Ixxv

- [References are to Sections.]

Seamonds v. Hodge, 36 W. Va. 304
Sears v. Chapman, 158 Mass. 400
v. Choate, 146 Mass. 395 358

v. Dillingham, 12 Mass. 358 448, 499

v. Russell, 8 Gray (Mass.) 86 265
Sear’s Estate, In re, 18 Utah 193 347
Seattle v. McDonald, 26 Wash. 98 341
Seaver v. Lewis, 14 "Mass. 83 392
Seaverns v. Presbyterian Hospital, 173

Ill, 414 398
Seay v. Cockrell, 102 Tex. 280 244

Sechrest v. Edwards, 4 Metc. (Ky.) 163 441
Second Congregational Soc. v. Waring,

24 Pick. (Mass.) 304 352
‘Second Reformed Presbyterian Church

v. Disbrow, 52 Pa. St. 219 231
Security Co. v. Brinley, 49 Conn. 48 434

v. Pratt, 65 Conn. 161 368

v. Snow, 70 Conn, 288 372
Seebeck, In re, 140 N. Y. 241 367, 378
Seebrock v. paere 30 Nebr. 424 526
Seeley v. Hincks, 65 Conn. 1 293
Seery v. Murray, 107 Towa 384 492
Seguine v. ae 42 N. Y. 663 103
Segur’s Will, In re, 71 Vt. 224 83
Seibert v. Wise, 70 Pa. St. 147 237, 241
Seibert’s “Appeal, In re, 13 Pa. St. 501 254
Seibert’s opel, In tes 19 Pa. St..49 255
Sellards v. Kirby, 82 Kans. 291 151

Selman v. Robertson, 46 S. Car. 262

242, 286
Sells v. Delgace) 186 Mass. 25 421
Semmes v. orthington, 38 Md. 298 33
Senac’s Succession, 2 Rob. (La.) 258 47
Senn v. Greundling, 218 Ill. 458 440
Serre’s Succession, 133 La. 929 55

Sessions’ Estate, Tn re, 70 Mich. 297 169
Sevier v. Douglass, 44 *La. Ann. 605
41, 47, Wee
v. Woodson, 205 Mo. 202
Sewall v. Roberts, 115 Mass. 262 tee
v. Wilmer, 132 Mass. 131 46, 365
Seymour v. McAvoy, 121 Cal. 438 296, 356
v. Sanford, 86 Conn. 516 339
Seymour’s Succession, 48 La. Ann. 993 461
Shackelford v. Hall, 19 Ill. 212 288
Shackley v. Homer, 87 Nebr. 146 250
Shadden v. Hembree, 17 Ore. 14 241, 306
Shaffer’s Succession, 50 La. Ann. 601 153

Shahan v. Swan, 25 Ohio L. Bul. 69 3
v. Swan, 48 Ohio St. 25
Shailer v. Bumstead, 99 Mass. 112 539
Shallcross, In re, 200 Pa, 122 ,, 296
a ed Estate, In re, 9 Pa. Dist.

353
See v. Kelly, 88 Minn. 202 341
Shaner v. Wilson, 207 Pa. 550 794

hangs vy. Hallock, 6 App. Div. (N.
Y¥.) 55 346

Shank v. Dewitt, 44 Ohio St. 237 376
Shanilead’s Appeal, In re, 47 Pa. St. 5

Shapter’s Estate, In re, 35 Colo. Orr

533

Sharboro’s Estate, In re, 63 Cal. 5 520
Sharp v. Hall, 86 Ala, 110 485
v. Humphreys, 16N. J. L 234

vy. ‘McPherson, 10 Ohio C. é * 181 60
v. Wallace, 83 Ky. 584 479
Sharp’s Appeal, In re, 134 Pa. St. 492 85
Sharp’s Estate, In re, 17 Cal. App. 634
Shattuck v. Young, 2Sm. & M. Miss.)

Shaw vi Camp, 163 IIL ee 156, 478,
v. Camp, 61 Ill. App. 6 515
Sheehan v. Kearney, 82 Miss. 688 442,
Sheets, In re, 52 Pa. St. 257 411, 419,
Sheirick v. Maxwell, 28 Ky. L. 173

 

Shelby v. o James Orphan Asylum,
66 Nebr. 532
Sheldon v. Newt t; 3 Ohio St. 494 369
v. Stockbridge, 67 Vt. 299 98
Shelton v. Hadlock, 62 Conn. 140 306

v. Homer, 5 Metc. (Mass.) 462
373

371
Shepard v. Burr (Del. Ch.), 87 Atl.
1020 293

v. Shepard, 57 Conn. 24 293

v. Shepard, 60 Vt. 109 205
sneppard’ ‘Ss Estate, In re, 149 Cal. 219 -525
Shepperd v. Fisher, 206 Mo. 208 242, 270
Sheppey v. Stevens, 185 Fed. 147 519
Sherman _v. American Cong. Assn., 98

Fed. 295
v. Baker, 20 R. I. 446 271
Sherwood v. American Bible Soc., 40
N. Y. 561 97
Shibla v. Ely, 6 N. J. Eq. 181 411
Shields v. Stillman, 48 Mo. 82 7
v. Union Cent. Life Ins. Co., 119
N. Car. 380 506
Shillaber’s Estate, In re, 74 Cal. ee
152, » 500
Shimer v. Mann, 99 Ind. 190 * 351
Shindler My ge EER 150 App. Div.
CN, VN 875 243
Sluper v. Shiner, 15 Tex. Civ. App.
392
Shinkle v. Crock, 17 Pa. St. 159 50
Shippen v. Burd, 42 Pa. St. 461 422
Shirey v. Postlethwaite, 72 Pa. St. 39 9234
Shirk’s Estate, In re, 242 Pa. 95 281
Shirley v. Healds, 34 N. H. 407 420

v. Shattuck, 28 Miss, 13
Shivers v. Latimer, 20 Ga. 327 80

Shockley v. Parvis, 4 Houst. (Del.)
235
Shoemaker v. Eeewn, 10 Kans. 383 350
Shorten v. Judd, 60 Kans. 73 466, 467
Shull v. Johnson, Ss N. Car, 202 178
Shultz v. Houck, 29 Md. fs 487, 509
Shuman v. Heldman, 63_S. Car. 474 293
Shumate v. Bailey, 110 Mo. 411 207

SHeeney v. Holbrook, 1 Pick. (Mass.)

488
Shurtleff v. Francis, 118 Mass. 154 5
Shute v. Sargent, 67 N. H. 305 43
Sibley v. Cook, 3 Atk. 572 309
Sibthrop, In re, L. R.1 P. & D. 106 488
Sickles v. New Orleans, 80 Fed. eee

» 45
Siddons v. Cockrell, 131 Ill. 653 Wasa "811
Sigel, In re, 213 Pa. 14 463

Sill v. White, G2 Conn. 430 237

Sillcocks v. Sillcocks, 50 N. J. Eq. 25 236
Silliman v. Whitaker, 119 N. tae” 89 = 245
Silverthorn, In re, 15 Ont. L. R. 112 236

Simickson v. Snitcher, 14 N J. L. 53 207
Simmons v. Beazel, 125 Ind. 362 208, 1197
v. Cabanne, 177 Mo. 336 136, 241
v. Leonard, 89 Tenn. 622 521

v. Leonard, 91 Tenn, 183 446, 451
v. Oliver, 74 Wis. 633 390
v. Simmons, 73 Ala. 235 194
Simms v. Buist, 52 S. Car. 554 238

singe. v. Middleton, 51 Tex. oe App.
3

53 , 530, 531
Simonds v. SuiGnss 168 Mass. 144 234
Simons, In re, 55 Conn. 239 374
Simonsen v. Hutchinson, 231 Ill. 508 684
Simons’ Will, In re, 55 Conn, 239 323
Simonton v. White, 93 Tex. 50 297
Simpson v. Adams, ta Ky. 790 1129

v. Cherry, 34 S. Car. 68 241

v. Millsaps, 80 Miss. 239 345

y. Welcome, 72 Maine 496 867
Ixxvi

TABLE OF CASES

[References are to Sections.]

Simrell’s Estate, In F614 Pa. St. 604 ae

Sims v. Sims, 94 Va

v. Skinner, 118 Ky. 573 1188
Singleton v. Scott, 11 Iowa 589 373
Sinnet v. Bowman, 151 Ill. 146 525
Sinnott v. Moore, 113 Ga. 908 45, 296
Sisk v. Almon, 34 Ark. 391 392

Sistrunk v. Ware, 69 Ala. 273

Sites v. Eldridge, 45 N. J. E Fy 204
Sizer, In re, 129 App. Div. (N.Y 446
Skeen v. Marriott, 22 Utah 8 35

Skeggs v. Horton, 82 Ala. 352 505
Skerrett’s Estate, "In re, 67 Cal. 585

Skinner v. American Bible Soc., 92 Wis.

209 449, 478, 480

v. Hemenway, ~ a nee 582 167

v. Spann, 175 Ind 213, 214

v. Wood, 76 N. al 409

Skinner, In’ re, 40 Ore. 571 449

Shoutenburgi v. Hopkins, 43 N. J. Ea.

102
Slaughter v. Heath, 127 Ga. 747 533
Slayton v. Singl eton, 72 Tex. 209 506
Sleeper v. Kelley, 65 N. H. 206 184
Slemmer v. Crampton, 50 Iowa 302 244
Slingluff v. Johns, 87 Md. 273 157

Sloan v. Thornton, 102 ey 443 310

Sloane v. Stevens, 107 N. 122 32, 184
Slocum, In re, 169 N. Y. 183 345, 1061
Slote v. Reiss, 153 Ky. 30 174
Small v. Field, 102 Mo. 104 339, 355
v. Jose, 86 Maine 120 221
v. McCalley, 51 Ala. 527 492
v. Thompson, 92 Maine 539 233, 237
Smalley v. Smalley, 70 Maine 545 448
Smaw v. Young, 109 Ala. 528 250
Smith v. Ayer, 101 U. S. 320 421
v. Bryan, 34 N. Car. 11 55
v. Cairns, 92 Tex. 667 321
v. Chadwick, 111 Ala. 542 241
v. Clark, 10 Md. 186 296
v. Curry, 52 Ill. opr 227 154
v. Day, 2 Penn. ( ay 245 76, 526
v. Dennis, 163 Ill. 211
v. Dolby, 4 Harr. ba) 350 460
v. Dorsey, 38 Ind. 3
v. Du Bose, 78 Ga. ai 14, 106, 531
v. Edwards, 88 _N. Y. 254
v. Greeley, 67 N. H. 2 180
v. Hardesty, 88 Md. 374
v. Harrington, 4 Alien “Mass. 566 358
v. Henline, 174 Ill. 526
v. Holden, 58 Kans. 1835 150
v. Hutchinson, 61 Mo. 83 211
v. Jackman, 115 Mich. 192 322
v. Jewett, 4 N. H. 513 217
v. Johnson, 21 Ga. 386 354
v. Jones, 4 Ohio 115 60
v. Joyner, 136 Ga. 755 284
v. Kimball, 62 N. H. 606 167
v. McIntyre, 95 Fed. 585 368
v. McKitterick, 51 Iowa 548 1210
v. Nelson, 18 ‘Vt. 511 185
v. Phillips, 131 Ala, 629 234
v. Pierce, 65 Vt. 200 33
v. qaonels a Iowa 55 207, 236
v. Smith, 157 Ala. 79 286
v. Smith; 7 Ga. 477
v. Smith; 64 Nebr. 563 280, 294
v. Smith; 72 N. H. 168 1
v. Smith; 28 N. J. L. 208 38
Vv. Smith, 48 N. J. Eq. 566 63
v. Smith) 79 N. Car. 455 414
Vv. Smith; 17 Grat. i 268 207
v. Smith, 23 Wis. 258, 283
v. Sweringen, 26 Mo 551 $5
v. Terry, 43 N. J. Eq. 659 205
y. Thurman, 2 Heisk. (Tenn.) 110 22

 

Smith
v. Towers, 69 Md, 77 348
v. Townsent, 32 Pa. St. 434 271
v. ve Dursen, 15 Johns, (N. Y.) se
v. Sates. 4 Ala. 96

Smith, In re, 7 Ch, Div. 665 ai2
Smith, In re, 85 Mise. of Y.) 636 78
Smith, In re, 131 N. 1216

Smithdeal v. Smith, “aN Pw. 52 22
Smith’s Appeal, In re, 61 Conn. 420 410
Smith’s Appeal, In re, 103 Pa. St. oe? 434
Smith’s Estate, In re, 46 Misc. (N. Y.)

210 231
Smith’s Estate, In re, 6 Pa. Dist. 329 215
Smith’s Estate, In re, 140 Pa. St. 344 345
Smith’s Estate, In re, 144 Pa. St. 428 338
Smith’s Estate, In re, 226 Pa. 304 256
Sen's Goods, In re, L. R. 1 P. & Dz
Smithsonian Inst. v. Meech, 169 U. S.

398 290, 1232
Smith's Will, In re, 52 Wis. 543 451
Smithwick v. Jordan, 15 pees 113 355
Smoot v. Heyser, 113 Ky. 63

Smullin vy. Wharton, 73 Nene 667

39, 340, 341, 342, 349
Smyth v. Burns, 25 Mins 422 390
Sneed v. Ewing, 5 J. J. Marsh. (Ky.)

460 467
Sneer v. Stutz, 102 Iowa 462 351
Snider v. Burks, 84 Ale. 53 450°

v. Snider, 160 N. 151 169, 803
Snodgrass v. Se ee 164 Ind. 59 789
Snow v. Foley, 119 Mass, 102 141
Snowball v. Snowball, 164 Cal. 476 519
Snuffer v. Howerton, 124 Mo. 637 485, 488
Snyder v. Baker, 5 Mackey (D. C.) 443

683, 861

v. Nesbitt, 77 Md. 576 231, 234
Snyder, In re, 217 Pa. 71 138, 140
Soher’s Estate, In re, 78 Cal. 477

25, 461, 463
Sohier v, Trinity Church, 109 Mass. 1” 280
Souder’s Estate, In re, 203 Pa, 293 233
Soulard’s Estate, In re, 141 Mo. 642 338
Southard v. Central R. Co., 26 N. J.

. 66.
Southgate v. Karp, 154 Mich. 697 194
South ae Tp. v. Marshall, 138
Pa. St. 323
South NS click Bettie dst Seminary
v. Peaslee, 15 N. H. 188.
Southworth v. Spal onh 173 Mo. 59
156, 452, 533

Sowell v. Sowell, 40 Ala. 243 509
Sowers v. Cyrenius, 39 Ohio St. 29 864
enter Estate, In re, 49 Pa. Super.

Ct. 314 91
Spathaw v. Sparhawk, 10 Allen COD

Sparks v. Dorrell, 151 Mo. App. 173 387
Spath v. Ziegler, 48 La. Ann. 1168 184
Spaulding vy. Chicago &c. R. Co., 30

Wis. 110 21
Speer v. Speer, 146 Iowa 6 83.
Spence v. Widney (Cal.), 46 Bae; 463 271
Spencer v. Spencer, 163 N. Car. 83 be

v. Spencer, 25 R. I, 239
Spencer, In re, 16 R. I. 25 394, 398
Spencer’s Appeal, In re, 77 Conn. 638 464
Spicer v. Connor, 148 ee Div. (N.

Y.) 334 176
Sprague v. Sprague, 13 R. 701 351
Spreckels’ Estate, Tn re, 163 Cal. 559

63, 65

Spring, In re, 216 Pa. St. 529 337, 343
TABLE OF CASES

Ixxvii

[References are to Sections.]

‘Sticldoee v. Congleton, 30 Ga. 976

191, 240, 257
Stableton v. Ellison, A olne St. 527° 375
Stacey v. Cunningham, 6 ? Otis St. 176 516
Stafford v. Villain, io La. 319 24
Stagg v. Green, 47 Mo. 500 ai
Staigg v. Atkinson, 144 Mass. 564 48,
Staines v. Burton, 17 en 331 271, 332
Stamm v. Bostwick, 122 N. Y. 4
Stanley v. Colt, 5 Wall. (U. S.) 119 3 38
Stant v. American Security &c. Co., 23

B0

App. D. C. 25 108
Stanwood v. Stanwood, 179 Mass. 223 306
Staples v. Lewis, 71 Corin, 288 171

v. Mead, 152 App. Div. (N. Y.) 745

190, 191
Stapleton v. Stapleton, 21 Ala. 587 523
Starbuck v. Starbuck, 93 N. Car, 183 434
Stark v. Conde, 100 Wis. 633 281, 282, 294

v. Parker, 56 N. H. 481 524

Stark, In re, 149 Wis. 631 219
Starke v. Wilson, 65 Ala. 576 324
Starkweather v. American Bible Soc.,

72 Til. 50 44, 97
Starling. v. Price, 16 Ohio St. 29 176
Starnes v. Hatcher, 121 Tenn. 330 33

v. Hill, 112 N. Car. 1 244
Starr v. Moulton, 97 Ill. 525 379

v. Starr, 2 Root (Conn.) 303 448
v. Willoughby, 218 Ill. 485 380, 1193
Starrs v. Mason, 32 La. Ann. 454
Staser v. Hogan, 120 Ind. 207 533
State v. Alston, 94 Tenn. 674 15
v. Bates, 2 Harr. (Del.) 18 100
v. Bazille, 97 Minn. 11 77
v. Crossley, 69 Ind. 203 394, 462, 476
v. Dalrymple, 70 Md. 294 15
v. De Wolf, 8 Conn. 93 85°

v. Guilbert, 70 Ohio St. 229 77

v. Holmes, 115 Mich. 456 271

v. McGlynn, 20 Cal. ae 508, 518, 521

v. McQuillin, 246 Mo. 518
v. Main, 87 Conn. 5° 253
v. Meagher, 44 Mo. 356 403
v. Raughley, 1 Houst. Pele ae 193

v. Rogers, 1 Houst. (Del.) 5 410

v. Sacramento County eee Ct;

148 Cal. 517, 518

v. Smith, 52 Conn. 557 237

v. Smith; 16 Lea (Tenn.) 662 167

ve Twelfth qucieial Dist. Ct. 34

Mont. 485

v. White, 30° f. Car. 116 492
Stayman v. Paxson, 221 Pa. 446 173
Stead v. Curtis, 205 Fed. 439 491, 495
Stearns v. Godfrey, 16 Maine 158 283
as v. Lathrop, 4 Pick. (Mass.) 489
Stebbins’ Estate, In re, 94 Mich. 304 534

Stedfast v. Nicoll, 3 Johns. Cas. (N.
Y.) 18 193

Stedman v. Priest, 103 Mass. 293 191
Steel v. Steel, 4 J. I Marsh. (Ky.) 231 413
Steel, In re, *L. RB. (1903) 1 Ch. 135 9 211
Steele v. Helm, 2 Marv. (Del.) 237
30, 533
v. Price, 5 B. Mie, ao 58 460
v. Steele, 64 Ala. 393
Steen v. Steen, 68 N. Pee 472 172
Steib v. Whitehead, 111 ti. 247
296, 348, 356
Steinke v. Yetzer, 108 Towa 512 398
Steinmetz’s Estate, In re, 168 Pa. St.
175 59
Stephens v. Evans, 30 Ind. 39 265
v. Milnor, 24.N. J. Eq. 358 381
ve Serer cas. temp. Talb, 228 269
v. Swann, 9 Leigh (Va.) 404 96

 

Stephenson v. Richardson, 88 Pa. St.
376
v. Short, 92 N. Y. 433 77
Stephenson, In re, 30 Pa. Super. Ct. 97 232
Sterling v. Ives, 78 Conn. 498 351, 357
Sternburg’s Estate, In re, 94 Iowa 305
463, 488
Stetson v. Eastman, 84 piste 366 306, 308
v. Stetson, 200 Ill. 462
Stevens v. De La Vaale 166 Mo. 20 281
v. Dennett, 51 N. H. 324 519
v. Flower, "46 N. a i 340 322
v. Gage, 55 N. 175 403, 414
v. Hope, 52 Mick, 65 485
_v. Underhill, 67 N. H. 68 327
Stevens, In re, 83 Cal. 322 103

Stevens’ Estate, In re, 163 Iowa 364 63
DRREHERD a Abingdon, 8 Jur. (N. S.)

179

v. Abington, 31 Bray, 305 179
v. Lesley, 70 N. Y. 512 192

v. Superior Ct. 6 “Cal. 60 492
Steward v. Knight, 62 N. ii Eq. 232 234
v. Lyons, 54 W. Va. 76

v. Middleton, 47 N. 3° Ey, 293 81
Stewart v. Harriman, 56 N. H. 25 448
v. Mathews, 19 Fla. 752 371
v. Mulholland, 88 Ky. 38 476

v. Pettus, 10 Mo. 755 487

v. Smiley, 46 Ark. 373 392, 420

v. Stewart, 15 Ch. Div. 539 433
v. Stewart, 177 Mass. 493 13, 30, 32

v. Stewart, 13 N. J. Eq. 398 1214
v. Stewart, 56 N. J. Ba, pat 526
Stewart, In re, 5 N. Y. S. 290
Stewart’s Appeal, In re, sé Aisias 300 410
Stewart’s Estate, In re, 74 Cal. 98 65
Stewart’s Estate, In re, 147 Pa. St. 383 431

Stewart’s Estate, In re, 26 Wash. 32 41

Stickney, In re, 41 Misc. (N. Y.) 70 156
Stickney’s Will, In re, 85 Md. 79

44, 270, 280
Still v. Ruby, 35 Pa. St. 373 350
Stirling v. Lawrason, 31 La. Ann. 169 414
Stitt v. Stitt, 205 Mo. 155 414
Stockwell v. Bowman, 23 1 L. 2304 313
Stoddard v. Bowie, 5 Md. 6

Stoelker v. Thornton, 88 Al, 241 61

Stoff v. McGinn, 178 Ill. 181, 368
eugnon v. Lee, 60 L. J. a” B. 669 101
Stokes v. McKibbin, 13 Pa. St. 267 101
v. Payne, 58 Miss. 614 379
v. Pillow, 64 ae 1 62
Vv. Stokes, 78 L. age 42
v. Weston, 142 N. “Y. 433

252, 258, 285, 286
Stone v. Brown, 16 Tex. 425 410
v. Cook, 179 Mo. 534 519
vy. Framingham, a Mass. 303 307
v. Green, 30 Ga. 523
v. Griffin, 3 Vt. 400. 99
v. Hackett, 12 Gray (Mass.) 227 4
v. Huxford, 8 Blackf. (Ind.) 452 490

v. Littlefield, 151 Mass. aes
222, 345, 349
Stone, In re, 138 Mass. 476 357
Stone, In re, 15 Misc. (N. Y.) 317 77
Stone’s Appeal, In re, 74 Conn. 301 22
Stone’s Succession, 31 La. Ann. 311 414
Stonestreet v. Doyle, 75 Va. 356 308

Storey, In re, 120 Ill. 244 489, 492
Storrs v. Burgess (R. I.), 67 Atl. 731 "1208

v. St. Luke’s Hospital, 180 Ill. 368 520
Story v. Palmer, 46 N. J. Eq. 1

343, 350, 358

v. Story, 188 Mo. 110 525
Stout v. Cook, 77_N. J. Eq. 153 176
vy. Young, 217 Pa. 427 485
Ixxvili

TABLE OF CASES

[References are to Sections.]

Stpivenbiatls v. Hopkins, 43 N. J. Eq.
Stover v. Kendall, 1 Cold. (Tenn.) 557
452, 480

Stowe v. Stowe, 140 Mo. 594 485, 491, 520
Strand v. Stewart, 51 Wash. er 7, 77

Stratton v. Physio-Medical Gale 149
Mass. 505 185
Stratton, In re, 112 Cal. 543 25
Straub’s Case, 49 N. J. Eq. 264 495
Straw v. East Maine Conference, 67

Maine 493 66, 189
ae badges Estate, In re, 5 Pa. Dist. oie
Striewig’s Estate, In re, 169 Pa. -

61 192, 240
Stringfellow v. Somerville, 95 Va. 701 13
Strode v. Commonwealth, 52 Pa. St, 181 i

v. McCormick, 158 Til, 142
Strong v. Williams, 12 Mass. 391 183
Stuart Moraes of Bute, 11 Ves. Jr. nie

v. Stuart, 18 W. Va. 675 180
v. Walker, 72 Maine 145 795
Stubbs v. Houston, 33 Ala. 555 469
Studdard v. Wells, 120 Mo. 25 66, 67
Studer v. Seyer, 69 Ga. 125 33
Stultz v. Kiser, 37 N. Car. 538 141
DDE HEEn's Estate, In re, 108
Iowa 555 1185
Stunz v. Stunz, 131 Ill. 210 62
Sturdevant’s DREals In re, 71 Conn. 392
76, 529
Sturdivant v. Neill, 27 Miss. 157 49
Sturges v. Cargill, 1 Sandf. Ch. (N.
¥.5, 216 354
Sturgis v. Paine, 146 Mass. 354 339

v. Work, 122 Ind. 134 -191, 201
Sturtevant v. Sturtevant, 116 Ill. 340 86
Sullivan v. Garesche, 229 Mo. 496

241, 242, 284
v. Jones, 129 N. Car. 442 241
v. Larkin, 60 Kans. 545 308

v. Sullivan, 106 Mass. 474 107, 448
Sullivan, In re, 114 Mich, 189
Sulzberger v. Sulzberger, 50 Cal. 385 62
Summerel v. Summerel, 34 S. Car. 85 55
Summers v. Copeland, 125 Ind. 466

v. Smith, 127 Ill. 645 286
Summit v. Yount, 109 Ind. 506 258, 283
Sumner v. Crane, 155 Mass. 483

30, 410,

v. Staton, 151 N. Car. 198
Sumpter. v. Carter, 115 Ga. 893
Sumwalt v. Sumwalt, 52 Md. 338
Sunderland v. Hood, 84 Mo. 293

252,

Supplee’s Estate, In re, 5 Pa. Dist. 41 400
Sutphen v. Ellis, 35 Mich, 446 508
Sutro’s Estate, Tn re, 139 ‘Cal. 87 306
Sutton v. Chenault, 18 Ga. 1 50
v. Hancock, 118 Ga. 857 467
v. Harvey, "24 Tex. oie App. 26 412
v. Hayden, 62 Mo. 33
v. Sutton, 5 Harr. (Del) 459 498
Suydam v. Thayer, 94 Mo. 49 210

Svanburg v. Fosseen, 75 Minn. 350 33

Swaim’s Will, In re, 162 N. Car. 213 151
Swain v. Duane, 48 ey 358 101

v. Gilbert, 3 Mo. 521
Swallow v. Swallow, 7 "N. J. Eq. 278 172
Swan v. Hammond, 138 Mass. 45 467
Swann v. Swann, 58 N. Car. 297 392
Swarthout v. Ranier, 143 N. Y. 499 237

Swasey v. serceriea Bible Co, 57
Maine 5 14
v. Jaques, 144 Mass, 135

| Tayloe v. Johnson, 63 N.. N. Car. 381

 

Sweeney v. Muldoon, 139 Pad 304 420
v. Warren, 127 N. ¥. 366
Sweeney’s Estate, In re, $4 Nebr. 834 fe
Sweet v. Burnett, 136 N. Y. 204 215
Sweitzer’s Estate, In re, 142 Pa. St.
541 204
Swenson’s Estate, In re, 55 Minn. 300
169, 192
Swift Mia, ousted 5 Serg. & R. (Pa.)

v. Wiley, 1 B. Mon. (Ky.) 114
swift, In re, 137 Ni. Ys
Swing v. Gatch, 7 Am. u Ree. 5
Swygart v. Willard, 166 Ind. 25 87

Sykes v. Van Bibber, 88 Md. 98 395
lg

Tabler v. Tabler, 62 Md. 601 153

Taft v. Smith, 186 Mass. 31 415

Talbot v. Field, 173 Mass. 188 1233

Talbott v. Hamill, 151 Mo, 292 236

Tally v. Butterworth, 10 Yerg. (Tenn.)

501
Tamplin’s Goods, In re, L. R. (1894)
Prob. 39 487

Tanton v. Keller, 167 Ill. 129 479
Tappan’s Appeal, In re, 52 Conn, 412
187, 280
Tarbell v. Walton, 71 Vt. 406 487, 506
oe Estate, In re, 3 Pa. County or
3
Tarver v. Haines, 55 Ala. 371
v. Tarver, 9 Pet. (U. 3) S74 26
Tate v. Tate, 11 Humph. (Tenn.) ee 453
Tatnall v. Hankey, 2 Moore P. C. 342 46
Taubenhau v. Dunz, 125 Ill. 524 204
Taussig v. Reel, 134 Mo. 530 a8

v. Mosher, 29 193
Taylor v. Benham, 5 iow, ay oe 233 335
v. Bennett, 1 Ohio C. C. 504

. Calvert, 138 Ind. 67 415
Columbian University, 226 U.

18, 188

ee 153 Ill. 220 63, 431

Harwell, 65 Ala. 1 356

Henry, 48 Md. 550 33:4

Hudson, 145 Mo. App. 377 33
James, 4 Dete, Pa (S. Car.) 1 60
Kelly, 31 Ala. 9, 464

SaddddddSSdd¢de4888 S88

Lindsay, 14 R. 2 518 244
McClintock, 87 Ark. 243 532
Mitchell, 57 Pa. St. 209 50
Pegram, 151 an age 461
. Phillips, 30 Vt. 2
Stephens, 165 ind * 00 158, 284, 850
Taylor, 174 Ind. 670 201; 210
Taylor, 145 Mass. 239 433
Thieman, 132 Wis. 38 *33
. Tibbatts, 13 B. Mon. (Ky.) 177. 491
: Cea 38 N. J. Eq. 91 295
. Wardlaw, 3 Dem. Surr. (N. Y.)
48 151
v. Wright, 93 Ind. 121 397
Taylor’ 's Estate, In re, 230 Pa. 346 444
Taylorsville lage: {Ghureh v. Offutt,
6 B. Mon. (Ky.) 5 189
Deg eubrocic v. McLaughlin, 209 Mo.
533
Teed v. Morton, 60 N. Y. 502 191, 312
Teegarden v. Lewis, 145 Ind. 98 - 415

=o v. Bishop. of Derry, 168 Mass.

7
Teets v. Weise, 47 N. J. L. 154 at
Tendick v. Evetts, 38 Tex. 275
Teopfer’s Estate, In re, 12 N. Mex, 372 466
TABLE OF CASES

[References are to Sections.]

Terhune v. cone Nat. Safe De-

posit Co., 245 Ill. 463
Terrell v. eked g ‘rob, (La.) 243 106
v. McCown, 91 Tex. 373
Terry v. Bourne, 17 Ky. i 1042 241
‘ vy. Buffington, 11 Ga. 337 76, 83
v. Smith, 42 N. J. Eq. 504 419

v. Wiggi ns, 47 Y. 512 231
Teske v. Dittberner, 70 Bebe 544 33
Tevis v. McCreary, 3 he ey 151 6
Thaw v. Ritchie, 136 U. 519 36
Thayer v. Boston, 15 coe “(Mass.) 347 (165

v. Finnegan, 134 Mass. 62 324

v. Paulding, 200 Mass. 98 663

v. Pressey, 175 Mass. 225 344

v. Spear, 58 Vt. 327 289, 899

v. Wellington, 9 Mass. 152
‘rheliusson v. Woodford, 4 Ves. 227

269, 272, 346
Theobald v. Fugman, 64 Ohio St. 473 77
Theological Soc. v. Attorney-General,

135 Mass. 285 271
Theriot’s Succession, 114 La. 611 517
Thiebant v. Sebastian, 10 Ind. 454 506
Thieme v. Zumpe, 152 Ind. 359 222, 351
Thissell v. Schillinger, 186 Mass. 180 322
Thom v. Thom, 101 Md. 444 251
Thomas v. Blair, 111 La. 678 204

v. Carter, 170 Pa. St. 272 83

v. Castle, 76 Conn. 447 241, 358

v. Higgins, 47 Md. 439 244
v. Miller, 161 Ill. 60 236
v. Morrissett, 76 Ga. 384 420

v. National Christian Assn., 63
Nebr. 14, 77

v. ORs ciate University, 70 Ohio
368, 981
ve Ge 431 Ga, 248 367
v. People, 107 Ill. 517, 492
v. Scott, 24 Ky. L. 2031 212
v. Thomas (Ky.), 110 S. W. 853 1199
v. Thomas, 97 Miss. 697 176, 353
v. Thomas, 149 Mo. 426 257

v. Troy cy Nat. Bank, 19 Misc.
(N. Y.) 470 231

v. Williams, 9 Fla. 289 412
Thomas’ Estate, In re, 155 Cal. 488 524
Thomasson v. Driskell, 13 oe 253 486
Thome v. Allen, 24 Ky. L. 987 347
Thomman’s Estate, In re, 161 Pa. St.

444 257
Thompson v. Beasley, ie prey 175

v. Brown, 4 Johns. C (N. ry 619 414

v. Churchill, 60 Vt. Bey 32, 141, 142

v. Crump, 138 N. Car. 32 859

v. Deeds, 93 Iowa 228 430

v. Garwood, 3 Whart. Fe) 287 366

v. Gaut, 14’ Lea (Tenn.) 3 290

v. Hoop, 6 Ohio St. 480 64

v. King, 95 Ark. 549 498

v. McDermott, 19 Fla. 852 523

v. Marshall, 75 7 ba 89 358

v. Myers, 95 K 306

v. O'Dell, 22 Ghis ev C. 200 255

v. Penn, 149 Ky. 158 49

v. Rainer, 117 Ala, 318 524

v. Stevens, 62 N. Y. 634 445

v. Thompson, 27 Ky. L. 949 212

v. Thompson, 49 Nebr. 157 449

v. Thompson, 4 Ohio St. 333 157

v. Thornton, 197 Mass. 273 306

v. Turner, 173 ee a 518

v. Young, 25 Md. ae
Thompson, In re, L. Rr ‘1890), 45 Ch.

Div. 161 78
Thompson’s Estate, In re, 182 Pa. St.

340 ; 392
Thompson’s Estate, In re, 234 Pa. 82 gee

 

Thomson vy. Carruth, ao Mass. 77
v. Thomson, 115 56
oa ton v. Hall, ii. “Ala. 323
‘horington, 411 Ala. 237
hark v. pe Breteuil, 86 App. Div.
(N. Y.) 405 337;
Thornburg v. Wiggins, 135 Ind. 178
Thorndike v. Loring, 15 Gray (Mass.)
391 270,
Thornley v. Kershaw, 109 Ill. App. 113°
Thornton v. Stanley, 55 Ohio St. 199

292,
v. Zea, 22 Tex. Civ. App. 509
Thornton, In re, 21 os
ones Appeal, In ae Sad. (Pa.)

453
Thrasher v. Ballard, 33 W. Va. 285

v. Ballard, 35 W. Va. 524 366,
Throckmorton v. Holt, 180 U. S. 552
Thurston v. Prather, 25 Ky. L. 1137
eb betes v. Berry, 10 B. Mon. (Ky.)

Tichenor v. Brewer, 98 Ky. 349 a
Ticknor’s Estate, In re, 13 Mich. 44

+
Tiernan v. Bean, 2 Ohio 383
Tiffany v. Clark, 58 as Y. 632

v. Emmet, 24 R. 1 411
Tilden v. Green, 130 N. Y. 29
Tilden In re, 56 App. Div. (N. Y.)

Tilley ne patie (Ala.), 62 So. 761
v. 109 N. Car. 461
‘"llsaghast v. Bradford. 5 - I, 205
Tillinghast, In re, 23 RI 121
Tillinghast, In re, 25 R. I. 338 232,
Tillman v. Hatcher, 1 Rice L. (S. Car.)

271

Tveaae Estate, In re, 3 Cal. Unrep.
‘as

Timpsos v. Lorsch, 50 Misc. (N. Y.)

Tindall v. Miller, 143 Ind. 337
v. Tindall, 167 Mo. 218
v. Tindall, 23 N. J. Eq. 244
Tingley v. Harris, 20 R, 517
Tinnin v. “Womack, 54 N. Car. 135
Tobey v. Moore, 130 Mass. 448
Tobias v. Ketchum, 32 N. Y. 319 343,
Tobin v. Haack, 79 Minn. 101 440,
v. Jenkins, 29 Ark, sat
v. Tobin, 163 Ind. 240
Toch v. Toch, 81 Hun (N. Y.) 410

139,
Todd v. McFall, 96 Va. 754 321,
Toland v. Toland, 123 Cal. 140
Tolley v. Wilson (Tenn.), 47 S. W. 156

Tomkins v. Miller (N. 7; Eq.), 27 Atl.

484

Tomlinson v. Bury, 145 Mass, 346 139,
v. Ellison, 104 Mo. 1

Pom Dason’s Estate, In re, 133 Pa. St.

Tompkins v, Griffin, 92 Va. 307
v. Tompkins, 1 Bailey (S. Car.) ?
Vis Werpianel, 10 App. Div. (N. Y.)

57
Sees, In re, 10 App. Div. (N. Y.)
Tompkins’ Estate, In re, 154 N. Y. oy

Toms v. Williams, 41 Mich. 552
Toner v. Collins, 67 Iowa 369
Toole v. Perry, 80 Va. 681
Toomes’ Estate, In re, 54 ar 509
Torrance v. Torrance, 4 Md.
Torrey v. TN TL Fla, coe

v. Torrey, 70 . 672 210,

Ixxix
Ixxx

TABLE OF CASES

[References are to Sections.]

Totten, In re, 179 N, Y. 112 4
Towar v. Hale, 46 Barb. (N. Y.) 361 352
Towle v. Swasey, 106 Mass. ane
ee oO

Townsend v. Bogart, 5 Be w 88

v. Downer, 32 Vt. 5 ee

v. Townsend, 156 ts 454 195

v. Townsend, 25 Ohio St. 477 326
-Townsend’s Appeal, In re, 106 Pa. St.

268 . 347
Townshend v. Frommer, 125 N. Y. 446 354
Tracy, In re, 3 N. Y. St. 239 81, 102
Trammel v. Trammel, 148 Ind. 487 433
Trammell v. Johnston, 54 Ga. 340 296
Traphagen v. Levy, 45 N. J. Eq. 448 231
Trapnell v. Conklyn, 37 a Va. 242 51
Traylor, In re, 81 Cal. 201
Treat v. Vose, 63 ses Div. (N. oe

338 351, 353
“Trelease, In re, 49 Misc. (N. Y.) os 390
hey v. Trembly, 11 Week. B.

Supp. 50 443
Tremmnel v. Kleiboldt, 75 Mo. 255 101, 354
Trenton Hawn Co. v. Woodruff, 2 N:

J. Eq. 117 101
aiventon Trust &c. Co. v. Sibbits, 62 N.

J. Ba. 131 191
Trimble ou Rneciayie, 57 How. Pr. a

v. le ie Mo. 309 232
Trinitarian Cong. Church &c. Soc., In

re, 91 Maine 416 499
Trost’s Will, In re, 38 Misc. (N. Y.)

404 478
#rotter v. Blocker, 6 Port. ae 269 352
Trotters v. Winchester, 1 413 48
Troutman v. De Boissiere Odd Fellows’

&c. School, 66 Kans, 1 68
Truman, In re, 27 R. I. 209 ae 176
Trumbull v. Gibbons, 22 N. J. L. 117 281
hagus Academy v. Keene, 59 Ore. ae

6

Tucker v. Bishop, 16 N. Y. 4 192

a Seaman’s Aid Soc., 48 Mass. 188 186

. Stites, 39 Miss. 196 193

= Tucker, 27 N. Car. 161 448

v. Whitehead, 58 Miss. 762 08

Tucker, In re, L. R. (1893) 2 Ch. 323 323

Tuckerman v. Currier, 54 a: o. 25 13

Tudor v. James, 53 Ga. 302 521

Tuller, In re, 79 Ill. 99 81

Tullett v. Armstrong, 4 ae & C. 377 297
Tunis ae Hestonville &c. R. Co., 149 Pa.

at. 391
Tonaich v. Fox, 68 Nebr. 392
Tike v. Martin, 2 Neca cD. C.) it
Turley v. Turley, 11 Ohio St. 173 174
Turnell’s Succession, 32 Iba. Ann. 1218 103
Turner v. Balfour, 62 Conn. 89 205, 253

v. Cook, 36 Ind. 129 445; 450
v. Fenner, 19 Ala, 355 49
v. Gibb, 43 N, J. Eq. 526 322
v McDonald, 76 Cal, 177 486

v. Mather, 86 App. Div. (N. Y.)
172 392
Turner, In re, 34 Misc. or ee 366 232
Turner, In re, 82 Misc. Y.) 25 41
Turner’s ‘Appeal, In re, in Conn, 305 83
Turner’s Will, Tn re, 208 a . 261 159
Turpin v. Turpin, 88 Mo. 433
v. ey Wythe (ay % (2d ed. ee
Tuttle v. Robinson, 33 N. H. 104 414
Twiss v. Simpson, 183 Mass. 212 232
Tygard v. McComb, 54 Mo. APD 85 3, 22
Tyler v. Tallman, 29 I. 911
Tyler’s Estate, In re, 121 Ca. 405 498

 

505

Tynan v. Paschal, 27 Tex. 286
526

Tyson v. Tyson, 37 Md. 567

U
ve e Ohio River R. Co., 51 W. Va.
Underhill v. Dennis, 9 Paige (N. Y.)
Underaead ie at ea N. Y. 523

Union Safe Deposit &c. Co. v. Dudley,
104 Maine 297 173

98
98

United States v, Fox, 94 u S. 315 98
v. Perkins, 163 U.S. 625 75, 77
United States Trust oe v. Maresi, 33
Misc. - 539 341
v. Maxwell, 26 Misc. (N. Y.) 276 = 173
University of Georgia v. Denmark, 141
Ga. 390
University of Pennsylvania Trustees’
Appeal, 97 Pa. St. 187
Upham’s Estate, In re, 127 Cal. 90 308
Upington v. fe ea 151 N. Y. 143 66
Usry v. Hobbs, 58 306

32°
Utassy v. Geintngianen; 132 Mo. 53 79, 96

Utermehle v. Norment, 197 U. S. 40 "51 9
Vv

Valentine v. Ruste, 93 Ill. 585 396

Valentine’s Will, In re, 93 Wis. 45 504

Vamplew v. Chamb ers, 29 Nebr. 83 365

Van Alstine’s Estate, In re, oh Utah

193 »_518, 533’
Wap Beecklans Estate, In re, a "Iowa
Van Brunt v. Van Brunt, 111 N. Y.

178 172
Vancleave v. Beam, 2 Dana (Ky.) 155 523
Van Derlyn v. Mack, 137 Mich. 146 105
Van Driele v. Kotvis, 135 Mich. 181 1204
Van Houten v. Hall, "73 N. J. Eq. 384 738
Van Houton v. Hall, “1 N. J. Eq. 626 258.

Vandevort, In re, 62 Hun (CN. Y.) 612

s 281, 291

Vance _v. Upson, 64 Tex. 266 509

v. Upson, 66 Tex. 476 532

v. Vance, 74 Ind. 370 524

Vance’s Estate, In re, 209 Pa. 561 1220

anes s Estate, In re, 141 Pa. St. a one
Wey Emon vy. Superior Court, 76

14

Vas iarane, Campbell, 10 s oe 287 235

v._ Demarest, 76 N. J. E 33

Van Horn, In re, 5 N. J. i ie 67,
Van Nostrand v. Sees 16 App. Div. *
(N. Y.) 28 258
v. Moor, 52 N. Y. 12 154

v. Reformed Church in America, 59 ‘
89

. J. Eq. 19
Van Osdell v. Champion, 89 Wis. eet
292, 356
Van Riper v. Van Riper, 2 N. X Eq. 1’ 183
Van un prekel v. Van Syckel, 51 N. J. Eq.

172
Van Vleet v. McCarn, 18 N. Y. S. 73. 3
be ghaaenen v. Brown, 26 N. J. L.

58

van’ Wert v. Benedict, 1 Brad. (N. Y.)
ve Wichle v. Van Wickle, 59 N. J.
Yun" Winkle v. Fowler, 52 Hun (N,. Y.)

v. Schoonmaker, 15 N, fs oe 38h
un (N,

Van ae vy. Van Wyck, 22
416
TABLE OF CASES

Ixxxi

[References are to Sections.]

Varick v. Smith, 69 N. J. Eq. 505
Varner’s A peal, 80 Pa. St. 40 341,
Varnon v. aroa, 67 Mo. App. 534
151, 452, 500,
Varrell v. Wendell, 20 N. H H. 431 181,
Vaughan v. Farmer, 90° N. Car. aoe
=
Vaughn v. Lovejoy, 34 Ala. 437

Venable 2 v. Mercantile Trust Co., 74

Vender v. Luckenbach, 162 Pa. St. 18

Verdier v. Simons, .2 McCord Eq. (S.
Car.) 385

Vestal v. Garrett, 197 Ill. 398

Vester v. Collins, 101 N. Car. 114

Vice v. Hall, 120 Ill. 597

Vidal v. Girard, 2 How. (U. 8.) We

Villamil v. Hirsch, 138 Fed. 690
Vincent v. Vincent, 70 N. J. Eq. 272
Vines v. Clingfost, 21 Ark. 309

Viney v. Abbott, 109 Mass. 300
Vining v. Hall, 40 Miss. 83

Virgin v. Marwick, 97 Maine 578
Vogel v. Lehritter,. 139 N. Y. 223
Vogt v. Vogt, 26 App. D. C. 46

Von de Veld v. Judy, 143 Mo. 348
Von Rosenberg v. Wickes, 50 Tex. Civ.

App. 455

Voorhis’ Will, In re, 125 N. Y. 765

Vrooman v. Powers, 47 Ohio St. 191 ;

WwW

Waddell v. Waddell, 68 S. Car. 335

Wade v. American Colonization Soc., 7
Sm. & M. (Miss.) 663

Wadhams v. ppenteant Home Mis. Soc.,
12 N. Y. 415

Wagner v. McDonald, 2 Harr. & J.
(Md.) 346

Wainwright v. Tuckerman, 120 Mass.

Wait v. Belding, 24 Pick. (Mass.) ee

v. Huntington, 40 Conn.
Vv. society for Political "Shudy: re
Misc. (N. Y.) 245 95,
Waite v. Frisbie, 45 Minn. 361
Wakefield v. Phelps, 37 N. H. 295

¥ >
Walch v. Orrell, 53 Colo. 361
Waldo v. Cummings, 45 Ill. 421
Wales v. Bowditch, 61 Vt. 23
Walker v. Atmore, 50.Fed. 644
. Gibson, 164 Pa. St..512
Hill, 73 N. H. 254
5 Johnston, 70 N. Car. 576
Murphy, 34 Ala. 591
Parker, 13 Pet, @. 4 166
. Peters, 139 Mo. 81
. Pritchard, 121 int 31
Redding, 40 Fla. 124
v. Upson, 74 Conn. 128
Wiallerly’s Estate, In re, 108 Cal. 627

sdddedaas

235, 268,
Walker’s Estate, In re, 110 Cal. a
>
Walker’s Estate, In re, 150 Iowa 284
all v. Wall, 30 Miss. 91 5, 9, 491,
Wallace v. Minor, 86 Va. 550
v. Smith, 113 Ky. 263.
v. Wallace, 23 N. H. 149
Waller v. Ray, 48 Ala. 468
Walley’s Estate, In re, 11 Nev. 260
Wallis v. Luhring, 134 Ind. 447
v. Wallis, 114 F Nase, 510

311
354

505
374

370
288

372
60

399
204
499

83

 

Waln’s Estate, In re, 189 Pa. St. 631
Walsh v. McCutcheon, 71 Conn. ee

169,
Walsh’s Appeal, In re, 122 Pa. St.177. 3
Walter v. Brugger, 25 Ky. L. 1597 398
Walter, In re, 64 Wis. 487 155

306

Walters’ Estate, In re, 197 Pa. 555 321
Walton v. Kendrick, 122 Mo. 504 443
v. Walton, 7 Johns, Ch. (N. Y.)

262 140
Waltof’s Estate, In re, 194 Pa, St.

528 478

Walts v. Walts, 127 Mich. 607 532

Wankford v. Wankford, 1 Salk. 299

410, 413, 490

Warburton v. Williams, 116 Wis. 557 686

ard v. Brown, 53 W. Va. 227 490

v. Cooper, 69 Miss. 789° 176

v. County Comrs., 12 Okla. 267 447

v. Edge, 100 Ky. 757 250

v. Oates, 42 Ala. 225 402

v. Oates, 43 Ala. 515 506

Wardner v. Seventh Day Baptist Me-
morial Board, 232 Ill. 606 1149

Ward’s Will, In re, 70 Wis. 251 467
Wardwell v. Hale, 161 Mass. 396 255
v. McDowell, 31 Ill. 364 371
v. Wardwell, 91 Mass. 518 412
Ware v. Brush, 1 McLean (U. S.) shy 392
v. Wisner, 50 Fed. 310 47
Wareham v. Brown, 2 Vern. 153 379
Warfield’s Will, In re, 22 sy ee 496, 509
Warner v. Durant, 76 253
v. Marshall, 166 Ind. a 33
v. Warner, "37 Vt. 356 462, 476
v. Willard, 54 Conn. 470 207
Warren v. Morris, 4 Del. Ch. 289 a

v. Warren, 148 Ill. 641

v. Wigfall, 3 Desaus. (S. Car.) 47 ag
Warwick v. Warwick, 86 Va. 596 25
Washburn v. Van Steenwyck, 32 Minn.

336 41, 49
Washburn College v. O’Hara, 75 Kans.
700 188

Wesnbera's Estate, In re, 45 Minn.

Washburn’s Petition, In re, 20 R. I.
697 353

Washington &c. University’s Appeal, In
re, 111 Pa. St. 572 a
4

Waterman v. Alden, 2 U. S. 96
v. Alden, 115 Ill. 402
v. Canal-Louisiana Bank &c. Co., 186

Fed. 308

7
v. Greene, 12 R. I. 483

234

Waters v. Reed, 129 Mich. 131 108

v. Waters, 24 Md. 430 253
Watkins v. Blount, 43 Tex. Civ. App.

460 177, 193

v. Eaton, 173 Fed. 133 49

v. Quarles, 23 Ark. aay 273

vy. Stewart, 78 Va. 414

v. Waiters (Ky. oe , 120 S. bi aii

222, 24

Wiakious e smith, 7 Hun (N. Y.) 544” 402

Watson v. Alderson, 146 Mo, 333

| 486, 517, 523

v. Blackwood, 50 Miss. 15 154

v. Bothwell, 11 Ala. 650 521

v. Hinson, 162 N. Car. 72 451

v. Martin, 228 Pa. 248 215

v. Penn, 108 Ind. 21 220

v. Pipes, 32 Miss. 451 445

vy. Turner, 89 Ala. 220 8, 32, 520

v. Warnock, 31 Ga. 716 412

v. Watson, 1 Houst. (Del.) 209 33

vy. Watson, 2 B. Mon. (Ky.) 74 84
Ixxxii

TABLE OF CASES

[References are to Sections.]

Watson

v. Williamson, 129 Ala. 362 244
Watson, In re, 131 N. Y. 587 $16, 525
Watts v. Cole, 2 Leigh (Va.) 653 66

v. Watts, 38 Ohio St. 480 321, 392
Watts, In re, 202 Pa. 85 368, 380
Waughop v. Bartlett, 61 Ill. App. 252 393
Wax, In re, 106 Cal. 343 127

Weakley v. Buckner, 91 Ky. 457 357
Wear, In re, 131 App. Div. (N. )

875 462
Weatherhead v. Sewell, 9 Humph.

(Tenn.) 272 201

v. Stoddard, 58 Vt. 529 252

Weathersbee v. Weathersbee, 82 S. Car.
4

Webb v. Archibold, 128 ao 299 57, 202
v. alg 16 R. 462
v. Day, 2 Dem. Sire, &. Y.) 459 182
v. Fleming, 30 Ga. 445, 451
v. Hayden, 166 Ato. 39"

341, 343, 358, 942

v. Jones, 36 N. J. Ea. 163 434, 467
v. Lines, 77 Conn, 51 396
v. Meyers, 64"Hun (N. Y.) 11 67
v. Neal, 5 Allen (Mass.) 575 350
v. Webb, 111 Ark, 54 204
v. Webb, 130 Iowa 457 818
es Webb, 7 T. B. Mon. (Ky.) 626 503

Webb, 92 Md. 101 254, 255
Webber Hospital Assn. v. McKenzie,
104 Maine 320 419
Webster v. Cooper, 14 How. (U. S.)
488

394, ee
v. Lowe, 107 Ky. 293

v. Morris, 66 Wis. 366 293, 1913
v. Wathen, 97 Ky. 318 340
v. Wiggin, 19 R. I. 73 206, 271, 321
Weed v. Hoge, 85 Conn. 490 138, 139
v. Knorr, 77 Ga. 636 376
v. Scofield, 73 Conn. 670 187
Weeks v. McBeth, 14 Ala. 474 464
Weimar v. Fath, 43 -N, J. Ls 3 371

Weir v. Chidester,, 63 Ill. 453 22
v. Fitzgerald, 2 Bradf. (N. 2) 42

5 126, 441
v. Mosher, 19 Wis. 330 418
v. Smith, 62 Tex. 1 237

Weisert v. Muehl, 81 Ky. 336 61

Weiters v. Hart, 67 N. J. Eq. 507 390
Welch v. Adams, 63 N. H. 344 451
Welch’s Will, In re, 69 Vt. 127 532

Weldes v. McComb, 10 Tex. Civ. App.

Weller v. Noffsinger, 57 Nebr. 455
287, 296, 351,
v. Weller, 22 Tex. Civ. App. 247

Weller’s Succession, 107 La. 466 233
Wellford v. Snyder, 137 U. S. a -
Welling v. Owings, 9 Gill. (Md.) 467. 454
Wells v. eqetts, 45 App. Div. (N. aaa

v. Harris, 5 J. J. Marsh. re 4 22
v. Holt, 104 L. T. Rep. 253

v. Houston, 23 Tex. Civ. App. 629 241
v. Seeley, 47 Hun (N. Y.) 109 80

v. Wells, 4 T.°B. Mon. (Ky.) 152
465, 490
v. Wells, 35 Miss. 638 506
v. Wells, 144 Mo. tne 523
Wells, In re, 113 N. Y. 3 309
Wells-Fargo Co. v. Walsh °87 Wis. 67 490

Wells’ Succession, 4 La. Ann. 522 49
Wells’ Will, In re, 5 Litt. (Ky.) 273

43N. JL 90, 496
eh 9: Brown, 43
Ne eee 768. 778, 1094

 

Welsh

v. Gist, 101 Md. 606 431

v. Pounders, 36 Ala. 668 47, 469
Wemyss v. White, 159 Mass. 484 348
Wenger v. Thompson, 128: Iowa 750 368
Wenning v. Teeple, 144 Ind. 189 525, 527
Wentworth v. Read, 166 Ill. 139 308, 320
Werstler v. Custer, "46 Pa. St. 502 440
Wesco’s Appeal, In re, 52 Pa. St. 195 183
West v. Moore, 37 Miss. 114 282, 294

ve Rassman,. 135 Ind. 278 176, 194

v. West, 144 Mo. 119 461, 462

v. Wright, 115 Ga. 277 5
Westbrook v. Wilson, 135 N. Car. 400 108
Westcott v. Sheppard, 51 N. J. Eq. 315 530
weer v. Wester, 5 Jones (N. Car.) BA

9
Western a College v. McKin-

stry, 75 Md. 440
Westfaling v. We die, - ee 460 211
Weston v. Hanson, 212 270 10

v. Johnson, 48 Ind. c 434

v. Weston, 38 Ohio St. 473 169
Weston, In re, 60 Misc. (N. Y.) 275 490
West Aaa Pulp &c. Co. v. Miller,

176 Fed. 97, 100
Wethered Ae "Safe Deposit & Trust Co.}

79 Md. 325
Wetmore : —— 52 N. Y. 450 32
Wetter v. Habersham, 60 Ga, 193 518

v. Walker, 62 Ga, 142 170, 237
Whall v. Converse, 146 Mass. 345 252
Wheaton v. Andress, 23 Wend. (N. Y.) :

452 234

v. Pope, 91 Minn. 299 203
Wheeler v. Bent, 7 ek (Mass.) 61 156

v. Brem, 33 Miss. 1 394

v. Fellowes, 52 Cae 238 268

v. Brewster, 68 Conn. 177 57

v. Long, 128 Iowa 643 235

v. Perry, 18 N. H. 307 411

v. Walker, 2 Conn. 196 280
neg In re, 32 App. Div. (N. Y.)

3 186
Whelan v. Reilly, 3 W. Va. 597 347
Whelen’s Estate, In re, 175 Pa. St. 23 142
Whetton’s Estate, In re, 98 Cal. 203 523
Whitbeard v. St. John, 10 Ves. Jr. 152 257
Whitcomb v. Rodman, 156 Ill. i116 203
White v. ener General, 39 N. Car. 2

16

v. Geaitie, 16 N. Car. 87 138

v. Bigelow, 54 Mass. 593 6

v. Commonwealth, 110 Pa. St. 90 208

v. Donnell, 3 Md. Ch. 526 355, 394

v. Fitzgerald, 19 Wis. 480 4

v. Holmes (Tex. Civ. App.), 129 S.

W. 874 492

v. Howard, 38 Conny 342 97

v. Howard, 46 N. Y. 144 41, 44, 51

v. Kauffman, 66 Md. 89 324

v. Keller, 68 Fed. 796

51, 100, 209, 486
Massachusetts Inst. of Tech’, 171
ass, 158,” 179, eee

s

v. Old, 113 Va. 709 78
v. White, 52 Conn. 520 136
v. White, 150 Ky. 283 195

White, 73 S. Car. 261 676
Winchester, 6 Pick. (Mass.) 48
White, In re, Myr. Prob. oo 157 26

ss

White, In re, 125 N. Y. 544 137
Whitehead v. Gibbons, 10 N. J. Eq. 230 392

v. Park, 53 Ga. 575 323

v. Tapp, 69 Mo. 415 180
Whitehouse v. Bolster, 95 Maine 458 342
Whitelock y. Heddon, 4 Hoe & Pp. a 193
Whitenack v. Stryker, 2 N. J. Eq. 8 449
Wigeend v. Woerner,

TABLE OF CASES

[References are to Sections.]

White’s Estate, In re, 174 Pa. St. 642

Whitesides v. Cooper, 115 N. Car. 570
v. Whitesides, 28 S. Car, 325

White’s Will, In re, 25 N. J. Eq. 501

Whitfield v. Garriss, os N. Car. 148 234
v. Hurst, 9 Ired. L. (N. Car.) 170

: 492, 496
Whiting, In re, 33 Misc. (N. Y.) 274

i 308, 313
Whiting’s Appeal, In re, 67 Conn. 379

, 295
Whitman’s Estate, In re, 22 Ill. 511 355
Whitney v. Dodge, 105 Cal. 192 42, 45
v. Hanington, 36 Colo. 407 151, 495

v. Hay, 15 App. s. 164 33

v. Twombly, 136 Mass. 145 83, 84
Whittemore v. Bean, 6 N. H. 47 66
v. Russell, 80 Maine 297 103, 231
737

373

435
256
167

31

Whittle v. Whittle, 108 Va. 22

Wickersham v. Savage, 58 Pa. St. 365

Wicke’s Estate, In re, 128 Cal. 270 487

Wickes’ Estate, In re, 139 Cal. 195 518

155 Mo. App.

227 323
Wiess v. Goodhue, 98 Tex. 274

250, 351, 368

Wigan v. Rowland, 11 Hare 157 107

Wiggins Ferry Co. v. Ohie &c. R. Co.,

94 Ill. 83 235

Wikman’s Estate, In re, 148 Cal. 642 464
Wikoff’s Appeal, In re, 15 Pa. St. 281
151, 464
Wilbanks v. Wilbanks, 18 ls 17 287
Wilber v. Wilber, 165 N. Y. 451 841
HEpent Estate, In re, 166 Pa. St. es
Wilbourn v. Shell, 59 Miss. 205 25
Wilbur v. Almy, 12 How. (U. S.) 180 371
Wilcox v. Wilcox, 13 Allen (Mass.)
252 140
Wilcoxon v. Wilcoxon, 165 Ill. 454 534
Wilcox’s Appeal, In re, 54 Conn. 320 411
Wild v. Davenport, 48 N. J. L. 137 14
Wildberger v. Cheek, 94 Va. 517 191
Wilder v. Holland, 102 a 44 431
v. Ranney, 95 Yi 371
Wilder, In re, 9 Hawaii 492 394
Wilenou v. Handlon, 207 Ill. 104 498
Wiley v. Ewalt, 66 Ill. 26 87

v. Gregory, 135 Ind. 647

237
Wilhelm v. Calder, 102 Iowa 342 253, a

Wilkerson v. Clark, 80 Ga. 367 44
Wilkins v. Young, 144 Ind. 1 7, 55, 67
Willtesin v. Getty, 13 Iowa 157 372
v. ight, 6 B. Mon. (Ky.) 576 39
Wilks v. " Sladghter, 49 Ark. 235 399
Will v. Sisters of Order of St. Bene-
dict, 67 Minn. 335 448
Willard v. Darrah, 168 Mo. 660 178, 204

v. Willard in J EG ), 21 Atl. 463 ae
Willets, In re, 112 N. 289 422
Willett v. Carroll, 13 “Md. 459 201, 323

v. Porter, 42 ind. 250 524
Willey v. Clark, 105 Wis. 22 201

Wiley’s Estate, In re (Cal.), 56 Pac.
550 987
Willey’s Estate, In re, 128 Cal. 1

152
Williams v. Allison, 33 Iowa 278 285
v. Balmese Baptist Church, 92 Md. a6
v. Burrows, 1 Ohio Dec. (Reprint)
2 351, 374
v. Campbell, 85 Kans. 631 63
v. Corbet, 8 Sim. 349 401
v. Cowden, 13 Mo. au 288
v. Haddock, 145 N. att 60
v. Herrick, 19 R. I. Yo7 357
v. Jones, 166 N, Y. 522 258, 283

 

Williams
v. Knight, 18 & J 333 310
v. Lane, 4 N. 246 212
v. McKeand, 19. Mich. 507 697
v. Miles, 63 Nebr. 859 $21
v. Miles, 68 Nebr. 463
447, 475, 477, 478, 505
v. Newton, 86 S. Car. 248 106
v. Noland, 10 Tex. Civ. App. 629 13
v. Robinson, 42 Vt. 658 526
v. Thacher, 186 Mass. 293 357
v. Way, 135 Ga. 103 448
v. Williams, 49 Ala. 439 368
v. Williams, 189 Ill. 500 201
v. Williams, 142 Mass. 515 477
v. Williams, 20 Ch, Div. 659 430
v. Vreeland, 29 N. J. Eq. 417 342
Williams, In re, 1 Lea (Tenn.) 529 508
Williams, In re, 106 Mich. 490 33
Williamson v. Hall, 3 Ohio Dec. (Re-
print) 504 355
Williams’ Succession, 132 La. 865 194, 211
Willingham v. Bentley, 20 Ga. 783 341
Willis v. Alvey, 30 ae a App. 96 411
v. et 30 Ga. 200
v. Sharp, 113 N. y 00 14, 390
v. Smith, 66 Tex. 31 379
Willis, In re, 25 R. I. 332 67, 202
Wills v. Lochnane, 9 Bush oy 547 532
v. Spraggins, 3 Grat. (Va.) 555
96, 497, 523
v. Wills, 85 Ky. 486 235
Wilmarth v. Bridges, 113 Mass. 407 231
‘Wilmerding: In re, 75 Misc. (N. Y.) oe
Wilmoth v. Wilmoth, 34 W. Va. 426 355
Wilson_v. Bostick, 151 Ala. 536 462
v. Cox, 49 Miss. 538 48
v. Curtis, 151 Ind. 471 410
v. Denig, 166 Pa. St. 29 256
v. Fisher, 5 N. J. Eq. 493 402
v. Hall, 6 Ohio C. C. 570 282
v. Maryland Life Ins. Co., 60 Md.
150 379
v. Mason, 158 Ill. 304 oP dy ate
v. O'Dell, 58 Mich. 533 359
v. Perry, 29 W. Va. 169 189
v. White, 133 Ind. 614 345
v. Wilson, 6 Md. 487 57
v. Wilson, 145 Mass. 490 350, 411
v. Wilson, 17 N. Car. 181 340
Wilson, In re, 8 Wis. 171 156
Wilson's ‘Appeal, In re, 115 Pa. ae 95 414
Wilson’s Estate, In re, 117 Cal. 262 63, 87
Wilson’s Estate, In re, 78 Nebr. 758 533
Wilts v. Wilts, 151 Iowa 149 136, 137
Winch’s Estate, In re, 84 Nebr. 251. 84
Wind v. Jekyl, 1 P Wms. 572 206
Winder v. Nock, 104 Va. 759 415

Wing v. Deans, "214 Mass. 546 81
v. McDowell, sake, Ch pidtahs) 175 60
Winn v. Hall, I Ky. 289
v. Tabernacle Inf., M33 be, oe 280
Winne v. Winne, 166 N.Y. 2 33

Winslow v. Cummings, 3 Cush. (Mass.)
358 189

v. Kimball, 25 Maine 493 448
Winston v. Jones, 6 Ala. 550 368
Wintermute v. Snyder, 3 N. J. Eq. 489 232

Winter’s Estate, In re, 114 Cal. 186 284
Wirth v. Wirth, 149 Mich. 687 468
Wisehart v. Applegate, 172 Ind. 313 448
Wistar v. Scott, 105 Pa. St. 200 173
Wiswall v. Stewart, 32 Ala. 433 415
Withee v. Rowe, 45 Maine 571 34
Withers v. Jenkins, 14 S. Car. 597 235

v. Patterson, 27 Tex. 491 92
Ixxxiv

TABLE OF CASES

[References are to Sections.]

App.

me 289
Withy v. Mangles, 4 Beav. 358 170
Witter v. Mott, 2 Conn, 67 464, 476
Wixon v. Watson, 214 Ill. 158 233
Wolbert v. Beard, 128 Wis. 391 341
Wolf v. Schoeffner, 51 Wis. 53 215

Witherspoon v. Brokaw, 85 Mo.

Wolfe v. Hatheway, 81 Conn. 181 ay
v. Hines, 93 Ga. 329 371
v. Mueller, 46 Colo. 23 75, 77

Wolffe v. Loeb, 98 Ala. 341
Wolfinger v. Fell, 195 Pa Be 12. 222, 345
Woman’s Foreign Missionary Soc. v.

Mitchell, 93 Md. 199 189
Woman’s Missionary Soc. v. Mead, 131

In. 33 166, 167, 187, 206

aps v. Bullard, 151 Mass. 324 169

Cosby, 76 ‘Ala. 557 410

he Gaynon, 1 Ambl. 395 217

v. Hammond, 16 R. I. 98
97, 137, 368, 370, 419, 421

v. Lane, 102 Ga. 199 84
v. Mitcham, 92 N. Y. 375 177
v. Rhode Island Hospital Trust Co.,
a? R. L. 295 442
v. Robertson, 113 or 323 237
v. Wood, 63 Conn. 180
v. Wood, 4 Paige os Y) 299 416
¥ Wood, 83 N. Y. 101
Wood, 45 §. Car. 50 236
Wood, In re, L. R. Ose 8 3 Ch. 381 192
Woodbery vy. Collins, Desaus. Eq.

(S. Car.) 424 107
Woodbridge v. Banning, 14 Ohio St.

328
Woodburn’s Estate, In re, 138 Pa. St.

606 345
Woodbury v. Woodbury, 141 a 329 86
Woodcock, In re, 103 Maine 214 176

Woodgate v. Fleet, 64 N. Y. 566 352
Woodley v. Calhoun, 69 S. Car. 285 250
Woodman v. Madigan, 58 N. H. 6 235

v. Woodman, 89 Maine 128 255
Woodroof v. Hundley, 133 Ala. 395 498
v. Hundley, 147 Ala. 287 883
Woodruff v. Hundley, 127 Ala.
445, 447, 458. 500, 527
v. Lounsberry, 40 ea J. Eq. 545 390
v. Marsh, 63 Conn. 125 271.272
v. Pleasants, 81 Va. 37 190, 341
Woods v. Ridley, 27 Miss. 119 503
Woods’ Estate, In re, 36 Cal. 75 8
Washoe Estate, In re, 188 Pa. St.

204
Woodward v. James, 115 N. Y. 346
. 169, es, 327, 341, 350, a3)
v. Jewell, 140 U.S. 247
v. Woodward, 33 Colo. 457 a9
Woodworth’s Estate, In re, 31 Cal. 595
136, 327
Wool v. Fleetwood, 136 N. Car. 460 296
Woolery v. Woolery, 48 Ind. 523 469
Woolley v. Sullivan, 92 Tex. 28 62
Woolsey, In re, 17 Misc. (N. Y.) 547 449

Woolverton v. Johnson, 69 Kans. 708 285
Wisananenet Sav. Inst. v. Ballou, 16 R. 983

3
Weg et v. House (Tenn.), 36 S. W.

Wooton v. Redd, 12 Grat. (Va.) 196
153, 431
Worcester v. Worcester, 101 Mass. 128° 192
Worcester City Missionary Soc. v. Me-
morial Church, 186 Mass. 531 390
Word v. Whipps, 16 Ky. L. 403 442
Workman v. Workman, 2 Allen (Mass.)
2 191, 306

 

Worrell v. Vinson, 50 N. Car. 91 232, 353

Worth v. Worth, 95 N. Car. 239 324

oe v. Robinson, 44 Hun (N. ¥.) é4
3

Wrench v. Jutting, 3 Beav. 521 214
Wright v. Denn, 10 Wheat. (U. S.)
204 234
v. Dunn, 73 Tex. 293 371, 418
v. Fleming, 19 Hun (N. Y.) 70 492
v. Fultz, 138 an 594 504, 532
v. Gaskill, 74 N. J. Eq. 7 173
v. Herron, 5 Rich. Eq. Xs. Car.)
441 235
v. Masters, 81 Ohio St. 304 206
v. Methodist ee mea! Church,
Hoffm. (N. Y.) 201 311
v. Minshall, os ‘Ti. 584 60
v. Tinsley, "30 Mo. 389 35
v. West, 1-Cranch (C. C.) 303 393
v. Wright, 5 Ind. 389 440, 452, 465
v. Wright, 79 Mich. 527 509
v. Wright, 41 N. J. Eq. 382 375
v. Young, 75 Kans. 287 494, 498
Wyte v. "Gann, 43 Tex. 543 28, 470, 502
Wyckoff v. Wyckoff, 49 N. £ Eq. 344 324
Wylie v. "Lockwoud, 86 N. 291 176

Wyman v. Brigden, 4 Mass. Xisb 137
v. Johnson, 68 Ark. 369 169, 1190
Wyman’s Appeal, In re, 13 N. H. 18 399
Wynne v. jprters 7 Humph GTenii:
394

v. Wad 23 Miss. 251 a

v. Wynne, 56 Tenn. 308 173
¥

Yale College ¥. Runkle, 8 Fed. 576 280

Yard v. Murray, 86 Pa. St. 113 308

v. Pittsburgh & L. E. R. Co., 13 Pa.
205 3

St. 68
Yard’s Appeal, 64 Pa. St. 95 57
Bagels Will, In re, 4 Rawle (Pa.)
4
Yates v. Thomson, 3 Cl. & F. 544 49
Yearly v. Long, 40 Ohio St. 27 324
Yerkes v. Yerkes, 200 Pa. St. 419 241

Yetter’s Estate, In re, 160 Pa. St. 506 177
Yocum v. Siler, 160 Mo. 281 234, ae
Yore v. Cook, 67 Ill. App. 586

York’s Estate, In re, 185 Pa. St. 61 526
Yost v. McKee, 179 Pa. St. 381 296
Youmans v. Petty, 33 N. J. Eq. 532 532
Young Meg Seanet, 16 Lea ATsne)
v. Bradley, 101 U. S. 782 337
v. Davies, 2 Dr. & Sm. 167 175
v. McKinnie, 5 Fla. 542 137, 287
v. Miles, 10 B. Mon. (Ky) 287 347
v. Norris Peters Co., 27 App. D. C
140 485
v. Quimby, 98 Maine tet ot
v. Ridenbaugh, 67 Mo. 534
v. Robinson, 11 Gill & ~ ana.) 328 310
v. Sheldon, 139 Ala. 444 366, 369
v. Snow, 167 Mass. 287 55, 67
v. Young, 26 Beav. 522 "327
v. Young, 68 N. Car. 309 368

v. Young, 97 N. Car. 132 372
Youngblood v. Youngblood, 74 Ga. 614 4
Younger v. Duffie, 94 N. Y. 535 442

Young’s Estate, Tn re, 123 Cal. 337 152
Young’s Estate, In re, 1 Pa. Co. Ct.
a] 400
Z
Zabriskie v. Huyler, 62 N. J. Eq. 697 311
v. Wetmore, 26 N. J. Eq. 18 341
TABLE OF CASES

[References are to Sections.]

Zabriskie

v. Wood, 23 N. J. Eq. 541 173
Zane v. Kennedy, 73 Pa. St. 182 379
Zartman v. Ditmars, 37 App. Div. (N.

Y.) 173 253
Zavitz v. Preston, 96 Iowa a 236

Zeile’s Estate, In re, 74 Cal.
8, 32, t30, 141, 1217

Zeisweiss v. James, 63 Pa. St. 465

Zentner’s Estate, In re, 90 Wis. pe

oe v. Staffan, 16 App. Cas. (D.
4

Zillmer v. Landguth, 94 Wis. 607

Zirkle v. Leonard, 61 Kans. 636

Zollicoffer, In re, 50 N. Car. 309

Ixxxv

95

395
Cc.)

81
296
Soo
460
WILLS

THEIR

DRAFTING, EXECUTION, PROBATE
AND CONTEST

CHAPTER I
INTRODUCTORY
SECTION SECTION 3
1. Devolution of property on death 8. Will and related words defined.
of owner, 9, Distinguishing characteristics of a
2. Intestate succession. will.
3. Gift causa mortis. 10. The right to make a will.
4. Trust deed or declarations of 11. Importance of the instrument.
trust. 12. Reasons for making a will.
5. Deed to take effect at death. 13. Functions of a will.
6. Antenuptial agreements. 14, Objects of testamentary disposi-
7. Transmission of property by sur- tion. '
vivorship, 15. Inheritance or transfer tax.

§1. Devolution of property on death of owner.—The va-
rious methods for the transmission of property from one person
to another at or in view of the death of the owner are, (1) by
intestate succession, (2) by gifts causa mortis, (3) by trust deed,
(4) by deed to take effect at death, (5) by antenuptial agree-
ment, (6) by survivorship, and (7) by will. The owner may
choose any one or more of these methods as will best conform
to his wishes and the condition or circumstances attending his
estate. Each method has its own peculiar advantages and dis-
advantages, and for this reason it is thought best to treat them
at considerable length in succeeding sections.

§2. Intestate succession—When a person dies without
leaving a will his property, both real and personal, descends to
his heirs under the laws of intestate succession.* It is intended

1Hannon vy. Southern Pac. R. Co., 12 Cal. App. 350, 107 Pac. 335.
1
S 2 WILLS 2

by these laws to make such a will for the intestate as, if he had
died testate, he would have been most likely to have made for
himself, and its obvious policy is to follow the lead of the nat-
ural affections, and to consider as most worthy the claims of
those who stand nearest to the affections of the intestate.” Where
a person dies leaving a will disposing of either his real or per-
sonal property and not the other, or any part of his property and
not all, it is a case of partial intestacy. And the word “intestate”
used in the rules of descent and distribution, refers to the prop-
erty of the intestate undisposed of by will, and does not mean
that a decedent shall literally die intestate; that is, not having
made any will. A person is also said to die intestate when
his will has been revoked or annulled as irregular. But where
the word “intestate” is used with respect to particular property,
it has reference to a person who dies without effectually dispos-
ing of that property by will, whether he left a will or not.

The descent and distribution of property by intestate succes-
sion is wholly statutory and subject to legislative control. The
rights of heirs expectant are determined by the law in force at
the ancestor’s death, and the law of domicil governs the dis-
tribution of personalty,* while the descent of realty is controlled
by the law of situs.°

While those who are heirs are the ultimate beneficiaries, and
real estate descends at once to the heir, the personal property
first vests in the personal representative of the deceased, who
alone may sue to recover the same, and all the property, both
real and personal, may be subjected, if necessary, to the payment.
of debts and administration expenses, except such allowance as
may be provided by statutes for the surviving spouse and chil-
dren.°

2Garland v. Harrison, 8 Leigh 5 Brandeis v. Atkins, 204 Mass. 471,

(Va.) 368. 90 N. E. 861, 26 L. R. A. (N. S.)
3 Rocker v. Metzger, 171 Ind. 364, 230; In re Majot’s Estate, 199 N. Y..
86 N. E. 403. 29, 92 N. E. 402, 29 L. R. A. (N. S.):

4Kingsbury v. Bazeley, 75 N. H. 780n.
13, 70 Atl. 916, 139 Am. St. 664; In 6In re Graves’ Estate, 242 Ill. 212,
re Majot’s Estate, 199 N. Y. 29, 92 89 N. E. 978; Maitlen v. Maitlen, 44-
N. E. 402. Ind. App. 559, 89 N. E. 966; Ison v..
3 INTRODUCTORY § 3

Where there is any personal property to distribute, or where
there are any debts owing by the decedent, an administrator is
usually appointed for the purpose of making final settlement of
the estate. But such administration is not absolutely necessary;
especially where there are no debts against the estate, and the
heirs have made a satisfactory distribution among themselves.”
Such settlements, however, are not favored by the courts, and
if made unfairly, or in disregard of the right of any one inter-
ested in the estate, they may be set aside by the subsequent ap-
pointment of an administrator.6 While the personal property is
the primary fund out of which debts are to be paid, the fact that
a decedent's real estate also is liable for his debts, makes it im-
portant, so far as the title to the real estate is concerned, that
there should be an administration of his estate; for if there is
no evidence in the public records of an administration, it may
prove difficult to show that the real estate may not be held liable
for some unpaid debt of the decedent.

§3. Gift causa mortis.—A gift causa mortis may be de-
fined to be a gift of personal property made by a person in expec-
tation of death that is imminent, coupled with a delivery of the
property to the donee, but subject to the conditions, expressed
or implied, that if the danger of death pass without the donor
dying, or-if the donee should die first, or if the donor should
revoke the gift before death, the gift shall be void.° From this
definition it results that to constitute a gift causa mortis there
must be three attributes. First, the gift must be with the view
of the donor’s death. Second, it must be conditioned to take
effect only on the death of the donor by his existing illness. And
third, there must be a delivery of the property to the donee.*® A

Halcomb, 136 Ky. 523, 124 S. W. 813. E. 108; Carter v. Greenwood, 5
7 Fretwell vy. McLemore, 52 Ala. Jones Eq. (N. Car.) 410; Cochran

124; Bowen v. Stewart, 128 Ind. 515, v. Thompson, 18 Tex. 652.

26 N. E. 168, 28 N. E. 73; Owings v. ® Nicholas v. Adams, 2 Whart.

Bates, 9 Gill (Md.) 463; Needham v. (Pa.) 17; Seabright v. Seabright, 28

Gillett, 39 Mich. 574; Henderson v. W. Va. 412, 470, 474.

Clark, 27 Miss. 436; Taylor v. Phil- 10 Calvin v. Free, 66 Kans. 466, 71

lips, 30 Vt. 238. Pac. 823.
8 Gale v. Corey, 112 Ind. 39, 13 N.
§ 3 WILLS 4
valid gift causa mortis can not be made by one in anticipation of
some peril to his life, or in apprehension of death from a future
cause of death.** The mere intention to give is not a gift; and
so long as the gift is incomplete it can not be enforced in equity.”
Neither is a mere agreement to give for the consideration of love
and affection a transfer of the right to the property in the donee,
nor does it secure to him a right to compel the completion of
the contract.”

The policy of the law is opposed to gifts causa mortis because
of the danger of fraud, and the law requires much stronger
proof to sustain such gifts than is demanded to prove an ordi-
nary transaction.** But if the gift be accompanied by an actual
delivery of the property to the donee in the donor’s lifetime, it
is valid, notwithstanding the law of wills.** This is the vital
point, and the one that distinguishes the gift from a nuncupa-
tive will.*° The delivery must be Such as to vest the donee with
the control and dominion over the property, and to absolutely
divest the donor of his dominion and control, and delivery must
be made with the intent to vest the title to the property in the
donce.*” But it is not necessary that the delivery should be made
to the donee personally, it may be made to a third person in
his behalf.** A delivery to the donor’s own agent has been held
insufficient.*” The acceptance of the gift by the donee is also
essential in order to make a gift complete or perfect.2” The
delivery of the savings-bank book to the alleged donee, without an

11Smith v. Dorsey, 38 Ind. 451;
Taylor v. Henry, 48 Md. 550; Van
Vieet v. McCarn, 18 N. Y. S. 73;
Gourley v. Linsenbigler, 51 Pa. St.
345,

12 Martin v. Funk, 75 N. Y. 134;
Flanders v. Blandy, 45 Ohio St. 108.

13 Flanders v. Blandy, 45 Ohio St.
108; Carpenter v. Dodge, 20 Vt. 595.

14Raymond v. Sellick, 10 Conn.
480; Hatch v. Atkinson, 56 Maine
324; Grymes v. Hone, 49 N. Y. 23.

15 Marshall v. Berry, 133 Allen
(Mass.) 43.

16 Ragan v. Hill, 72 Ark. 307, 80 S.

W. 150; Knight v. Tripp, 121° Cal.
674, 54 Pac. 67; Tygard v. McComb,
54 Mo. App. 85.

17 Basket v. Hassell, 107 U. S. 602,
27 L. ed. 500; Jackson v. Twenty-
third St. R. Co., 88 N. Y. 520.

18Jones v. Deyer, 16 Ala. 221;
Gourley v. Linsenbigler, 51 Pa. St.
345; Caldwell v. Renfrew, 33 Vt. 213.

19 Tomlinson v. Ellison, 104 Mo.
105, 16 S. W. 201.

20 Dow v. Gould &c. Mfg. Co., 31
Cal. 629; Armitage v. Widoe, 36
Mich. 124.
5 INTRODUCTORY § 4

order in writing of the donor, the depositor, or a letter of attor-
ney duly authenticated as required by the terms of the contract
between the bank and its depositor, did not absolutely divest the
donor of his dominion and control over the debt due to him
from the bank, or confer upon the alleged donee the present
right to reduce the fund to possession by enforcing the con-
tract according to its terms.”*

§ 4. Trust deed or declarations of trust.—It is possible to
convey all of one’s property to another by an irrevocable deed
of trust, although it includes gifts which do not pass to the pos-
session of the cestui que trust until the death of the grantor. But
this may be done only when the grantor intended to make a
present conveyance, and there was a sufficient delivery of the
instrument.”? It is immaterial whether there was any other con-
sideration than appears upon the face of the instrument; for
even if the conveyance was purely voluntary, if completely exe-
cuted, without any circumstances tending to show mental inca-
pacity, mistake, fraud, or undue influence, it is binding and will
be enforced against the grantor and his representatives, and can
not be revoked except so far as a power of revocation has been
reserved in the deed.** But in order that the grantor may revoke
or change the deed during life, a suitable clause reserving that
right must be inserted in the instrument.** If the right of
revocation is not exercised during the lifetime of the grantor
and according to the terms in which it is reserved, the validity
of the trust remains as though there had never been reserved
a right of revocation.” It may be said that the creation of a
trust to take the place of a will is rarely advisable. It often
happens, however, that a testator desires to leave a portion of
his property to a person without resorting to the notoriety of

21Murray v. Cannon, 41 Md. 466, v. Deifendorf, 132 N. Y. 100, 30 N.
477, 478; Allen v. Williamsburgh Sav. E. 375, 8 N. Y. S. 617.
Bank, 69 N. Y. 314, 321; Walsh’s Ap- 23 Viney v. Abbott, 109 Mass. 300;
peal, 122 Pa. St. 177, 188, 189,1 L. R. Falk v. Turner, 101 Mass. 494.
A, 535, 15 Atl. 470, 9 Am. St. 83. 24 Locke v. Farmers’ Loan & Trust
22 Youngblood v. Youngblood, 74 Co., 140 N. Y. 135, 35 N. E. 578,
Ga. 614; Bromley v. Mitchell, 155 25 Lines v. Lines, 142 Pa. St. 149,
Mass. 509, 30 N. E. 83; Deifendorf 21 Atl. 809, 24 Am. St. 487,
a WILLS 6
proclaiming the gift in the form of a legacy. This he may do
by a trust deed or declaration of trust, and if such instrument is
otherwise valid it is not affected by the fact that it was made
without any consideration.2* A deed or declaration of trust
need not be under seal’? or acknowledged,** except where the
statute requires its execution to be in the same manner as deeds
of conveyance,”® as its validity is presumed from being exe-
cuted and acknowledged as a deed of conveyance it need not
be probated.

Declarations of trust as to personalty may be by parol or in
writing, and are enforcible in equity after the donor’s death.”
It may often occur that the wishes of a person can be better
accomplished, and at much less expense, by a trust deed than
by a will, but in drafting the instrument care should be taken
to follow somewhat the plans of a will. Often persons of small
means seek to dispose of their property on their death other than
by will. This is sometimes done by the person depositing his
money in a bank in his own name as trustee for the beneficiary.
It has been held that this does not establish an irrevocable trust
during the lifetime of the depositor, but that it is a tentative
trust merely, revocable at will, until the depositor dies or com-
pletes the gift in his lifetime by some unequivocal act or declara-
tion, such as delivery of the passbook, or notice to the benefi-
ciary. And in case the depositor dies before the beneficiary with-
out revocation or some decisive act or declaration of disaffirm-
ance, the presumption arises that an absolute trust was created
as to the balance on hand at the death of the depositor.** But
in most jurisdictions such attempts to make bank accounts serve
the purpose of a will prove ineffectual because they are held

26 Padfield v. Padfield, 68 Ill. 210,
72 Ill. 322; Stone v. Hackett, 12 Gray
(Mass.) 227; Lane v. Ewing, 31 Mo.
75, 77 Am. Dec. 632; Dennison v.
Goehring, 7 Pa. St. 175, 47 Am. Dec.
505.

27 Scituate v. Hanover, 16 Pick.
(Mass.) 222; White v. Fitzgerald, 19
Wis. 480. “

28 White v. Fitzgerald, 19 Wis. 480.

29 Cornelison v. Roberts, 107 Iowa
220, 77 N. W. 1028.

30 Taylor v. Henry, 48 Md. 550, 30
Am. Rep. 486; Day v. Roth, 18 N. Y.
448.

31In re Totten, 179 N. Y. 112, 71
N. E. 748, 70 L. R. A. 711.
7 INTRODUCTORY § 5

to be attempted testamentary dispositions contrary to the provi-
sions of the statutes of wills.

Appropriate forms of trust deeds and declarations of trust
will be found in a subsequent section.*?

§5. Deed to take effect at death—A very common
method of disposing of real property upon the death of the
owner is that accomplished by a deed executed by the owner
and delivered to a third person to be delivered to the grantee
after the grantor’s death. The original tendency was toward
holding that instruments indicating an intention to postpone en-
joyment by the persons claiming to be the grantees until after
the death of the person executing the instrument should be
classed as wills. This tendency in time yielded to another, namely,
that it was a sounder policy in a case of duty to declare that the
instrument was a deed and thus make it effectual, when holding
it to be testamentary would, for want of the required number
of witnesses, render it nugatory. So the modern decisions up-
hold such conveyances when not clearly repugnant to some well-
defined rile of law.** Where the form of a deed is actually
employed, stich phrases as “after my death,” “vest at my death,”
“take effect at my death,” and the like, may well be construed
as merely designed to postpone possession or enjoyment by the
grantee until after the death of the grantor.**

The effect of conveyances of the character under discussion
is to vest a present interest or estate in the grantee, possibly
reserving a life estate in the grantor. But if the obvious pur-
pose of the instrument was that it should not take effect to con-
vey any title until after the death of the person making it, it is
a will, and may be given effect as such if it has the requisite
formalities of a will.* But a grantor’s deposit of his deed with

82 See post ch. 31. 85 Bright v. Adams, 51 Ga. 239;

23 Love v. Blauw, 61 Kans. 496, 59 Jones v. Loveless, 99° Ind. 317;
Pac. 1059, 48 L. R. A. 257, 78 Am. Leaver v. Gauss, 66 Iowa 314, 17 N.
St. 334; Uhl v. Ohio River R. Co. 51 Wz. 522; Wall v. Wall, 30 Miss. 91;
W. Va. 106, 41 S. E. 340. Cook v. Brown, 34 N. H. 460.

34 West v. Wright, 115 Ga. 277, 41
S. E. 602. :
§ 6 WILLS 8
a third party, to be held by such third party until the grantor’s
death, and then delivered to the grantee therein named, the
grantor reserving no dominion or control over the deed during
his lifetime, constitutes a valid delivery, and vests an immediate
estate in the grantee subject to a life estate in the grantor.*°
After a grantor has made delivery in this manner he can not
change his intention and withdraw the deed without the grantee’s
consent.*7 If the grantor reserves control of the instrument,
and it is subject during his life to revocation, no present estate
passes to the grantee, and the deed is invalid for want of de-
livery.*®

Forms of deeds to take effect at death will be found in a sub-
sequent section.*°

§6. Antenuptial agreements.—Another means often em-
ployed for the transmission of property is that accomplished by
an antenuptial agreement, or marriage settlement. This is either
in the nature of a contract or a conveyance in contemplation of
marriage, whereby property is promised or settled on either or
both of the parties by either or both of them or by a third
party, and whereby either or each of the parties releases or agrees
to release his or her property rights, which would otherwise be
created upon the marriage of the parties.*® The sole considera-
tion for such agreement or conveyance is that of marriage, and
it has been held that such consideration is sufficient to support.
the agreement.** But in some jurisdictions the right of a wife

36 Moore v. Trott, 156 Cal. 353, 104
Pac. 578, 134 Am. St. 131; Callerand
v. Piot, 241 Ill, 120, 89 N. E. 266;
Hoagland v. Beckley, 158 Mich. 565,
123 N. W. 12; Maxwell v. Harper, 51
Wash. 351, 98 Pac. 756; Klabunde v.
Casper, 139 Wis. 491, 121 N. W. 137.

37 Maxwell vy. Harper, 51 Wash.
351, 98 Pac. 756.

38 Goodlett v. Kelly, 74 Ala. 213;
Miller v. Physick, 24 Ark. 244; Ben-

*neson v. Aiken, 102 Ill. 284, 40 Am.
Rep. 592; Jones v. Loveless, 99 Ind.
317; Otto v. Doty, 61 Iowa 23, 15 N.

W. 578; Patterson v. Snell, 67 Maine
559; Shurtleff v. Francis, 118 Mass.
154; Davis v. Williams, 57 Miss. 843;
Miller v. Lullman, 81 Mo. 311; Mc-
Laughlin v. McManigle, 63 Tex. 553;
Prutsman v. Baker, 30 Wis. 644, 11
Am. Rep. 592.

39 See post ch, 31.

40 Croker v. Croker, 87 Cal. 643, 25
Pac. 922.

41 Peck v. Vandemark, 99 N. Y. 29,
1 N. E. 41; National Exchange Bank
v. Watson, 13 R. I. 90, 40 Am. Rep.
623,
9 INTRODUCTORY § 6
to dower in her husband’s estate is not barred by such agree-
ment unless there is some other valuable consideration in addi-
tion to that of marriage.*? A husband may bar himself from any
interest in the wife’s property by an antenuptial agreement, and
if such agreement is properly executed it can not be revoked by
the husband, but stands as a bar to any claim he may urge to
his interest as widower in the property of the wife.** Such
agreements whether between the parties to the marriage, or with
a third person, must be in writing, or no action can be main-
tained upon them, either in the way of enforcing them or for
damages for a breach of them; and such writing must be
signed before the marriage takes place.*° But it has been held
that if there be a written agreement after marriage, in pursu-
ance of the parol agreement before the marriage, this takes the
case out of the statute of frauds.*®

Such agreement will not deprive the right of a husband or
‘wife to inherit the estate of the other unless such was the clear
‘intention apparent from the contract.‘7 If the agreement en-
tered into expressly provides that the provision therein made
shall be in lieu of any right to inherit from the other spouse, the
‘right to so inherit is barred.“* Where a valid antenuptial agree-
ment is made which defines the rights of the wife in her hus-
band’s personal property, she will be confined to the provisions
so made, and will not be entitled to take any portion of the
husband’s personal property which is given to her absolutely by
statute.*® Such agreement when entered into in contemplation
of marriage, by the prospective spouses, on behalf of each other,

42In re Pulling, 93 Mich. 274, 52
N. W. 1116; Graham v. Graham, 67
Hun 329, 22 N. Y. S. 299.

423 Daubenspeck v. Biggs, 71 Ind.
255.

44Bradley v. Saddler, 54 Ga. 681;
Flenner v. Flenner, 29 Ind. 564;
Powell v. Meyers, 23 Ky. L. 795, 64
S. W. 428; White v. Bigelow, 54
Mass. 593, 28 N. E. 904.

45 Stoddard v. Bowie, 5 Md. 18;
Randall v. Morgan, 12 Ves. Jr. 69.

46 Moore v. Harrison, 26 Ind. App.
408, 59 N. E. 1077.

47 Dunlop v. Lamb, 182 Ill. 319, 55
N. E. 354.

48 McNutt v. McNutt, 116 Ind. 545,
19 N. E. 115, 2 L. R. A. 372; Eber-
hart v. Rath, 89 Kans. 329, 131 Pac.
604.

49 McNutt v. McNutt, 116 Ind. 545,
19 N. E. 115, 2 L. R. A. 372; Schaf-
fer v. Matthews, 77 Ind. 83; Tevis v.
McCreary, 3 Met. (Ky.) 151; Find-
ley v. Findley, 11 Grat. (Va.) 434.
37 WILLS 10

their heirs, executors, and administrators, constitutes an abso-
lute and irrevocable contract. Neither has any more power to
abrogate or revoke it than the other, and it binds them both
equally and may be enforced against the personal representatives
of either spouse after death." In some states, however, it is
provided by statute that such instruments do not alter the laws
of descent.5+ Antenuptial settlements sometimes take the form
of a trust deed, and in such case it should conform to the law
relating to trusts. In drafting a will where the testator is a
party to an antenuptial contract it is important that the terms of
such contract be thoroughly understood, and its effect upon the
will explained to the testator. Examples of antenuptial agree-
ments may be found among the forms hereinafter given.*”

§ 7. Transmission of property by survivorship.—The doc-
trine of survivorship is a method of transmission of property
incident to joint estates, and is the immediate consequence of
the peculiar mode in which joint tenants are seized. This right
of survivorship is called the jus accrescendi, for the reason that
the right upon the death of one joint tenant accumulates and
increases to the survivors. One joint tenant can not devise his
interest in the joint estate; for, upon his death, another joint
tenant surviving, there is no estate or interest in the joint estate
left for his will to take effect upon.**? However, it may pass
under the will to the last survivor.®* Joint tenants are said to
hold individually and jointly, having one and the same interest,
accruing through one and the same conveyance, commencing at
the same time and held by one and the same possession. On
the death of one joint tenant, there being no severance in the
estate, his entire interest is cast upon the survivor or survivors,
to the exclusion of the inheritance of the same by his heirs.**

50 Huguley v. Lanier, 86 Ga. 636, 12 Duncan v. Forrer, 6 Binn. (Pa.) 193.
S. E. 1065, 22 Am. St. 478. 54 Wilkins v. Young, 144 Ind. 1, 41
51 Arizona: Rev. Stat. (1913), N. E. 68, 55 Am. St. 162; Duncan v.
§ 3845; Texas: Vernon’s Sayles’ Forrer, 6 Binn. (Pa.) 193.
Civ. Stat. (1914), art. 4617. 55 Wilkins v. Young, 144 Ind. 1, 41
52 See post ch. 31. N. E. 868, 55 Am. St. 162.
58 Nichols v. Denny, 37 Miss. 593; ‘
11 INTRODUCTORY § 7
The doctrine of survivorship, however, has been generally abol-
ished in this country, but in jurisdictions where -joint tenancy
still exists, real or personal property owned by two or more
persons as joint tenants, on the death of the one passes to the
survivor or survivors and not by will.°*

There is another species of estate existing between husband
and wife which is recognized by the laws of some states, by
which, where a conveyance is made to a man and woman who
are at the time husband and wife, the estate vested in them by
such conveyance is a kind of joint estate held by them by entire-
ties, an estate in which each owns an equal and unseverable
interest, and upon the death of either the survivor holds the
entire estate in severalty.°’ These estates are generally spoken
of as “joint tenancies,’ but this expression is not strictly accu-
rate. It is neither a joint tenancy nor a tenancy in common,
but as it is now commonly and properly called a “tenancy by
the entireties,” for both are seized of the entirety.°° Such an
estate, however, can be created only where the relation of hus-
band and wife exists.°°

Where a husband deposits money in a bank to the credit of
himself and wife with instructions to the bank that the balance
at the death of either was to belong to the survivor, this consti-
tutes an agreement between the bank and the husband which
remains in force after his death, and the balance remaining on
deposit at his death is payable to her as survivor.®° Also stocks,
bonds, mortgages, or other choses in action, standing in the joint
names of a husband and wife, upon the death of one, vests in the
survivor. While there are many cases holding that where the

56 Rockwell v. Swift, 59 Conn. 289,
20 Atl. 200; Wilkins v. Young, 144
Ind. 1, 41 N. E. 868.

57 Jones v. Chandler, 40 Ind. 588;
French v. Mehan, 56 Pa. St. 286.

58 Ketchum v. Walsworth, 5 Wis.
95, 68 Am. Dec. 49.

59 Thornburg v. Wiggins, 135 Ind.
178, 34 N. E. 999, 41 Am. St. 422, 22
L. R. A. 42.

60 Metropolitan Savings Bank v.

Murphy, 82 Md. 314, 51 Am. St. 473,
33 Atl. 640, 31 L. R. A. 454.

61 Abshire v. State, 53 Ind. 64;
Pike v. Collins, 33 Maine 38; Draper
v. Jackson, 16 Mass. 480; Pender v.
Dicken, 27 Miss. 252; Shields v. Still-
man, 48 Mo. 82; Sanford v. Sanford,
45 N. Y. 723; Bramberry’s Estate,
156 Pa. St. 628, 632, 27 Atl. 405, 36
Am. St. 64, 22 L. R. A, 594.
§ 8 WILLS iS

husband purchases a security, or makes a deposit, or subscribes
for stock in the joint namie of himself and wife, and pays there-
for with his own funds, upon his death the entire security belongs
to his wife, if she survives him, yet the decision in these cases
is put upon the ground that it is apparent from the character
of the transaction that the husband intended to give the property
to his wife in the event of her survivorship, and hence the trans-
fer possesses all the essential qualities of a gift causa mortis
which he may revoke in his lifetime and which does not take
effect until his death, if not previously recalled. But it has
been held that a deposit of money, the separate property of the
wife, and the taking of the passbook showing an account in her
name and that of her husband, payable to the order of either of
them, does not of itself show any gift to him, nor any joint
interest in the deposit with the right of survivorship.®

§ 8. Will and related words defined. —Will.—A will is a
legal declaration of a person’s intention or wish respecting what
shall be done after his death touching the disposition of his prop-
erty, the guardianship of his children, or the administration of
his estate.**

Testament.—Originally the term “will” was used to denote an
instrument disposing of real estate, while an instrument dispos-
ing of personal property was termed a “testament.” An instru-
ment disposing of both real and personal property was called a
“ast will and testament.” ‘This distinction, however, is no longer
observed, the term “will” being used to designate an instrument
disposing of both real and personal property, while the term
“testament” is practically obsolete.®

Codicil—A codicil is a supplement or addition to a will made
after the execution of the will and annexed to or to be taken as

62 Draper v. Jackson, 16 Mass. 480; 64 See Colton v. Colton, 127 U. S.
In re Albrecht, 136 N. Y. 91,18 L. R. 300, 32 L. ed. 138, 8 Sup. Ct. 1164;
A. 329, 32 N. E. 632, 32 Am. St. 700. Rice v. Rice, 68 Ala. 216; Wood’s

63 Denigan v. San Francisco Sav. Estate, 36 Cal. 75.

Union, 127 Cal. 142, 59 Pac. 389, 78 65 Compton v. McMahan, 19 Mo.
Am. St. 35, App. 505.
13 INTRODUCTORY § 9

a part thereof, by which the disposition made in the original will
is explained, added to or altered.”

Testator—The word “testator” has reference to the person
who. makes a will, and a woman who has made a will is some-
times called a “testatrix.”

Devisor—A person disposing of real property by will is termed
a “devisor.”

Devisee.—A person taking real property under a will is termed
a “devisee.”

Bequeath.—As a verb the word “bequeath” denotes the mak-
ing of a bequest or will of personalty.

Bequest.—A bequest is a gift of personal property in general
by will.

Legacy.—A legacy denotes a gift of money, also of personalty
generally by will. ’

Legatee.—A person taking personal property under a will is
termed a “legatee.”

Devise —When used as a verb the word “devise” denotes the
act of disposing of real property by will, and when used as a
noun it denotes a gift of real property by will.

The terms used to designate gifts of realty and personalty,
respectively, have no fixed legal meaning, and when used inter-
changeably in a will do not affect the validity of the gift.

§9. Distinguishing characteristics of a will—From the
definition given of a will, it will be observed that the instrument.
does not pass a present interest or right in property, and that
such right or interest does not take effect until the death of the
testator. During his lifetime it is entirely inoperative ;*’ in other
words, the will is ambulatory during the life of its maker. It
is in effect reiterated as his will at each moment during his
life.® The true test of the character of the instrument is not
the testator’s realization that it is a will, but his intention to

66 Home for Incurables v. Noble, 67 Dunn v. Houghton (N. J. Eq.),
172 U. S. 383, 19 Sup. Ct. 226, 43 L. 51 Atl. 71.
ed. 486; Watson v. Turner, 89 Ala. 68 In re Kopmier’s Will, 113 Wis.
220. 8 So. 20: In re Zeile. 74 Cal. 125, 233, 89 N. W. 134.
°

§ 9 WILLS 14

create a revocable disposition of his property to accrue and take
effect only upon his death, and passing no present interest. To
be a will the instrument must have been intended as such. Mere
memoranda or directions for drawing a will, or a paper recit-
ing the terms of a proposed or partly executed will do not con-
stitute a will, though sufficiently executed as such.”

A will is distinguished from a deed of conveyance in that
the latter instrument must pass a present interest in property.
Whether, therefore, an instrument be a deed or a will, depends
upon whether the maker intended the estate to vest before his
death and upon execution of the paper, or whether he intended
that all the interest and estate should take effect only after his
death. If the former, it is a deed; if the latter, a will; and it
is immaterial whether he calls it a will or a deed, the instrument
will operate according to its legal effect.”

The same test applies in determining the question whether an
instrument is a will or a contract as in determining whether an
instrument is a will ora deed. The time when the property rights
under the instrument attach is the true test and not the time of
performance.” Where the instrument contains all the elements
of a contract, the fact that the time of performance is fixed
at the maker’s death, does not make it a will.7*

Asa general rule the same instrument can not operate as a will
and also as some other transfer of property; but the general
rule is subject to exceptions. Thus it sometimes happens that
certain provisions of the instrument may be sustained as a will
and other provisions thereof which relate to the subject-matter
not testamentary in character, may be sustained as a contract."*
Generally, without regard to its form, any instrument which does
not pass a present interest in property, and is to take effect on
the death of the maker, and is testamentary in character, may
operate as a will.”

69 Kenney v. Parks, 125 Cal. 146,54 78 Miller v. College, 177 Ill. 280, 52
Pac. 251. N. E. 432, 42 L. R. A. 797, 69 Ar.

70 Peake v. Jenkins, 80 Va. 283. St. 242.

71 Adair v. Craig, 135 Ala. 332, 33 7 Taylor v. Kelly, 31 Ala. 59, 68
So. 902; Wall v. Wall, 30 Miss. 91, Am. Dec. 150; Reed v. Hazelton, 37
64 Am. Dec. 149. Kans. 321, 15 Pac. 177.

72 Heaston v. Kreig, 167 Ind. 101, 74a Corwine v. Corwine, 24 N. J.
77 'N. E. 805, 119 Am. St. 475. Eq. 579,
15 INTRODUCTORY § 10

§10. The right to make a will_—The right of a person to
make testamentary disposition of his property is very ancient,
and it is considered of the same nature as his right of ownership
in the property itself. If his right of ownership is absolute the
natural sequence is that he may not only control it while he lives,
but he may designate by will the person or persons who shall own
and enjoy it after he is dead. The absolute ownership implies
the right of arbitrary disposition of it according to the loves,
hates, or caprices of the testator.” On the other hand if the
testator’s right of ownership in the property be limited, his right
to make posthumous disposition thereof may be limited also.

Some authorities hold that there is no natural right to make
testamentary disposition of property, but that the right is con-
ferred by the legislature in conformity with the constitution ;*°
while others hold that the right is absolute and one which every
person of mature mind and disposing memory may exercise,
subject to certain regulations to safeguard it and to prevent its
abuse.”

However, our modern system of making testamentary disposi-
tion of property, though remarkably liberal, by no means con-
cedes an absolute right in this respect, as the rule against perpetu-
ities shows. It is a right neither fixed nor absolute, but it has
its roots:in the actual life of the community, and which, like
every thing else human, is subject to change. The right is in
no sense a property right and is therefore not a right protected
by any of the constitutional provisions protecting property.”
The right to make a testamentary disposition of property is not
an inherent right; nor is it a right guaranteed by the fundamental
law. Its exercise to any extent depends entirely upon the consent
of the legislature, as expressed in the statute enacted on the

75 Hayes v. Hayes, 242 Mo. 155, 145 May v. Thomas, 94 S. Car. 158, 78 S.
S. W. 1155; Weston v. Hanson, 212 E. 85.
Mo. 270, 111 S. W. 44; Lorts v. 7 In re Ball’s Estate, 153 Wis. 27,
Wash, 175 Mo. 505, 75 S. W. 95. 141 N. W. 8

76 In re.Garland’s Will, 160 N. Car. 78 Patton v. Patton, 39 Ohio St.
555, 76 S. E. 486; In re Bergdorf’s 590.
Will, 206 N. Y. 309, 98 N. E. 714;
§ il WILLS 16

subject. It can withhold or grant the right, and, if it grants it,
it may make its exercise subject to such regulations and re-
quirements as it pleases. It may declare the rules which must
be observed, touching the execution and authentication of the
instrument necessary to indicate the testator’s intention and make
a compliance with them mandatory.”

§11. Importance of the instrument.—The making of a
will is the most solemn and consequential act of a man’s life.
Upon its legal and proper preparation depends the future happi-
ness and welfare of the persons and objects most dear to him.
Although wills are often regarded as the simplest of instruments,
they are never-failing sources of litigation. It is an astonish-
ing fact that most men spend their lives in accumulating a fortune
for the use and enjoyment of surviving loved ones, but pro-
crastinate the execution of this most important instrument until
their thoughts have been insistently directed'to the fact of the
inevitable journey to the great beyond. At this time the mental
faculties of the testator may have become so impaired by age
or the ravages of disease that his act would only invite a con-
test. The fact that many testators attempt to draft their own
wills without the aid of legal advice is another illustration of
their lack of appreciation of the importance of. the instrument.
Also other testators employ incompetent attorneys because their
services can be obtained at a less price than skilled services are
worth, and, by so doing, usually get about what they pay for.
It may be said that a will is the most intricate as well as the
most important of all legal documents. A man may make a
deed or other written contract and it may be reformed or set
aside on equitable grounds. Not so with a will after the tes-
tator’s death.*° The court and parties must take it as they find
it, and, if valid, abide by the intent embodied in it so far as
that can be discovered. There is no judicial power even to correct
a will which extends beyond the field of construction and inter-
pretation.**

79In re Noye’s Estate, 40 Mont. Cowie v. Strohmeyer, 150 Wis. 401,
178, 105 Pac. 1013. 126 N. W. 956.

80 Machem v. Machem, 28 Ala. 374; 81 Cowie v. Strohmeyer, 150 Wis.
401, 136 N. W. 956.
17 INTRODUCTORY. § 12

If the draftsman is not familiar with legal rules and princi-
ples governing wills, and with the precise meaning of technical
words and phrases, he should not undertake the task. This is
especially true if the testator’s estate be large, and he wishes to
tie it up or devote it to specific purposes.

Prudence, therefore, dictates that a will be executed, if pos-
sible, at a time when the testator has sufficient capacity to make
the same, and that the instrument be prepared by or with the
aid and advice of one having a thorough knowledge of testa-
mentary law.

§12. Reasons for making a will——The various reasons
for making a will have their basis in the condition of ‘he tes-
tator’s estate or business and the circumstances attending his
relations with those who would otherwise succeed to his estate
under the laws of intestate succession. As a matter of economy
and in order to escape the annoying formalities of an adminis-
tration under the law, a will is often made for the sole purpose
of appointing an executor. Where the right of dower exists a
will is often made to avoid the difficulties attending the setting
off of dower. Offensive relations anxious to inherit may have
their rights impaired or totally destroyed by will. When the
estate is of considerable magnitude, but contains little available
cash, the testator may, by will, give valuable instructions for
the marshaling of assets to pay debts and legacies. Many per-
plexing questions relative to inheritance in case of concurrent
deaths may be avoided by the making of wills.”

Where the statutory provisions relative to advancements are
‘unsatisfactory, a will may be made for the express purpose of
providing for advancements made by the testator.

Where statutes of descent and distribution promote inequali-
ties, as they sometimes do, a will may be made that will redress
the inequality. So it would seem that very good reasons exist
for the making of a will, even if the testator intends to make a
disposition conformably to the laws of intestate succession. By

82In re Batchelder, 147 Mass. 465, 18 N. E. 225; Coye v. Leach, 8 Metc.
(Mass.) 371. 41 Am. Dec. 518.
§ 13 WILLS 18
making a will the settlement of the estate is greatly facilitated

and the expense thereof materially reduced.

§ 13. Functions of a will—The principal function of a will
is the disposition of one’s property to take effect after death.**
This was at one time regarded as the sole function, but under
modern statutes testators are permitted to appoint one or more
guardians to have the care of the persons and property of their
minor children.**

The appointment of an executor is another important func-
tion of a will under modern statutes. An instrument merely
appointing an executor, or guardian, without making any direct
disposition of property, is a will and entitled to probate.** An
instrument discharging any one or more of the functions men-
tioned above is a,valid will, but an instrument discharging none
of such functions is not a will, though executed with all the for-
malities required for executing a will. Thus an instrument pur-
porting merely to disinherit an heir is not a will.*® Nor is an
instrument a will which merely leaves children to certain persons
without appointing such persons guardians.*’ Nor is a disposi-
tion of decedent’s body a testamentary disposition, a corpse not
being property.** An instrument which merely revokes a will
is not a will.®°

§14. Objects of testamentary disposition—A testator
may provide in his will for the establishment of a business or
for the continuation of one already established, and may devote
a part or the whole of his estate for the purpose of carrying on

83 Coffman v. Coffman, 85 Va. 459,
8S. E. 672,2 L. R. A. 848, 17 Am.
St. 69.

84 Wardwell v. Wardwell, 9 Allen
(Mass.) 518; Stringfellow v. Somer-
ville, 95 Va. 701, 29 S. E. 685, 40 L.
R. A. 623.

85 Miller v. Miller, 32 La. Ann.
437; Stewart v. Stewart, 177 Mass.
493, 59 N. E. 116; In re John’s Will,
30 Ore. 494, 47 Pac. 341, 50 Pac. 226,

36 L. R. A. 242; Mulholland v. Gil-
lan, 25 R. I. 87, 54 Atl. 928,

86 Coffman v. Coffman, 85 Va. 459,
8 S. E. 672, 17 Am, St. 69,2 L. R. A.
848.

87 Williams v. Noland, 10 Tex. Civ.
App. 629, 32 S. W. 328.

88 Enos v. Snyder, 131 Cal. 68, 63
Pac. 170, 82 Am. St. 330,53 L. R. A.
221. But see Scott v. Riley, 16
Phila. (Pa.) 106.

89 Parish v. Ulich, 69 Pa. St. 177.
19 INTRODUCTORY § 14
such business after his death.°° In the absence of a statute to
the contrary, any person having the legal capacity to make a will,
may, by such instrument, set aside a specified sum of money,
with which to erect a monument over his or her grave, or asa
memorial to another.** But a provision in a will that testatrix’s
grave be cared for and kept in order for at least twenty years
after her death has been held to be unenforcible for indefinite-
ness.°? Also a devise creating a perpetual trust to take care of
a private burial lot is unauthorized and void, unless the creation
of such a trust is authorized by statute.* In fact, a person may
dispose of his property by will for the promotion of any object
that is not illegal, immoral, or against public policy.°* If, how-
ever, the testamentary disposition is to carry into effect some
purpose which the law regards as illegal, impossible, impolitic,
or immoral, it will be held void upon the ground of public policy

and good morals.*

It is held that a will is not invalid on the

ground of public policy if made by a testator contemplating
suicide and he afterward commits suicide.**

90 Moore v. McFall, 263 Ill. 596, 105
N. E. 723 (affg. 183 Ill, App. 628) ;
Mason v. Pomeroy, 151 Mass. 167, 24
N. E. 202, 7 L. R. A. 774; Packard
v. Kingman, 109 Mich. 506, 67 N. W.
551; Wild v. Davenport, 48 N. J. L.
137, 7 Atl. 295, 57 Am. Rep. 552;
Willis v. Sharp, 113 N. Y. 590, 21 N.
E. 705, 4 L. R. A. 493.

91 Gilmer v. Gilmer, 42 Ala. 9; Van
Emon v. Superior Court, 76 Cal. 589,
18 Pac. 877, 9 Am. St. 258; In re
Koppikus, 1 Cal. App. 84, 81 Pac.
732; Phillips v. Heldt, 33 Ind. App.
388, 71 N. E. 520; Detwiller v. Hart-
man, 10 Stew. (37 N. J. Eq.) 347;
Frazer’s Case, 92 N. Y. 239; Eames
v. Hickman, 12 Hun (N. Y.) 425; In
re Lackey’s Estate, 4 Redf. (N. Y.
Surr.) 95; Hirst’s Estate, 12 W. N.
Cas. (Pa.) 323; MclIlvain v. Hocka-
day, 36 Tex. Civ. App. 1, 81 S. W.
54; Adams v. Cole, 6 Beav. 353, 49

~ nen v4 1a

338, 16 Jur. 306, L. J. (1852) 21 Ch.
596, 42 Eng. Ch. 255.

92In re Koppikus’ Estate, 1 Cal.
App. 84, 81 Pac. 732; Phillips v.
Heldt, 33 Ind. App. 388, 71 N. E. 520;
McIlvain v. Hockaday, 36 Tex. Civ.
App. 1, 81 S. W. 54. .

93Mason v. Bloomington Library
Assn., 237 Ill. 442, 86 N. E. 1044;
Phillips v. Heldt, 33 Ind. App. 388, 71
N. E. 520; Swasey v. American Bible
Co., 57 Maine 527; Bell v. Driggs, 63
N. H. 592, 4 Atl. 702; Detwiller v.
Hartman, 10 Stew. (37 N. J. Eq.)
347; Lloyd v. Lloyd, 2 Sim. (N. S.)
255, 10 Eng. L. & Eq. 139.

°4Thomas v. National Christian
Assn., 63 Nebr. 585, 88 N. W. 683.

95 Smith v. Du Bose, 78 Ga. 413;
In re Kernan’s Succession, 52 La.
Ann, 48.

96 Roche v. Nason, 105 App. Div.
256, 93 N. Y. S. 565 (affd, 185 N. Y.

190 "77 AT TX ANNTN
§ 15 WILLS 20

It is not the intention of the legatee or devisee, but that of
the testator, which will vitiate the will for illegality of object.
Thus where a testator makes a testamentary disposition of his
property to another with no instructions as to the application
thereof, the mere fact that the legatee or devisee intends to
apply the property to an illegal purpose, because he knew of the
testator’s desire that it should be thus applied, will not vitiate
the will.*”

§ 15. Inheritance or transfer tax.—In many of the states
statutes have been enacted providing for the collection of an
inheritance tax from legatees and distributees, especially those
of collateral kindred. Such tax is not a tax upon property, but
upon the right or privilege of acquiring it by succession. It is
a condition upon which the person may take the estate of a
deceased relative by inheritance, or testator by his will. It is a
retention by the state of a part of a deceased person’s property,
which the state may take to meet its necessities, and which in
certain cases it may take in toto, as in cases of escheated prop-
erty. It is not a tax upon the right of alienation but the privi-
lege of receiving by inheritance or will or otherwise at the
death of a former owner.* In some jurisdictions this tax is
levied against nonresident beneficiaries alone;*® but it is usually
imposed against both resident and nonresident beneficiaries.’
The personal property of a decedent, though it be situated in a
foreign jurisdiction, is subject to the tax if it is not needed to
satisfy local indebtedness in such foreign jurisdiction ;? but real
estate situated in a foreign jurisdiction is not taxable by the laws
of the domicil of the owner.®

It is important that the testator be advised respecting the effect
certain provisions of his will may have upon the payment of

97 Carrie v. Cumming, 26 Ga. 690. 1 State v. Dalrymple, 70 Md. 294.

98 Magoun v. Illinois Trust & Sav. 2 Commonwealth v. Coleman, 52
Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Pa. St. 468.
Sup. Ct. 594; State v. Alston, 94 3In re Swift, 137 N. Y. 77, 32 N. E.
Tenn. 674, 30 S. W. 750, 28 L. R. A. 1096, 18 L. R. A. 709; In re Bitting-
178. er’s Estate, 129 Pa. St. 338.

99 Mager v. Grima, 8 How. (U. S.)
490.
21 INTRODUCTORY § 15

such tax. He may not desire that the legatee bear the burden
of the tax, or it may be his desire that the legatee should bear
such burden. He should be informed that he has the power to
relieve the legatee from the payment of the tax by throwing it
on the residue of the estate.* In view of the fact that the stat-
utes usually impose a penalty for failure to pay the tax at a
time specified therein it is important that payment be made in
accordance with the statutory provision. It is also important
to know whose duty it is to pay the legacy or inheritance tax,
and out of what fund it may be paid.

#Dos Passos on Inheritance Tax Law, § 64.
CHAPTER II

KINDS AND CLASSES OF WILLS

SECTION SECTION

20. Classification of wills. 28. Joint and mutual wills.

21. Ordinary written wills. 29. Separate wills in relation to prop-

22. Nuncupative wills at common law. erty in different jurisdictions.

23. Nuncupative testaments under the 30. Wills appointing executor only.
civil law of Louisiana. 31. Wills operative at discretion of

24. Mystic wills. another.

25. Holographic wills, 32. Codicils.

26. Contingent or conditional wills. 33. Contracts to make or not make a

27. Alternative wills. will.

§ 20. Classification of wills —Wills are sometimes divided
into two general classes, (1) written wills, and (2) oral or nun-
cupative wills.*_ To the former class belong practically all wills,
as the statutes generally provide that wills must be in writing.”
Written wills are divided, with respect to their manner of exe-
cution, into (1) ordinary written wills, (2) holographic wills,
(3) mystic wills, and (4) nuncupative wills under the civil law.
With respect to their contents and effect written wills may be
divided into (1) contingent or conditional wills, (2) alternative
wills, (3) joint and mutual wills, (4) separate wills in relation
to property in different jurisdictions, (5) wills appointing an
executor only, and (6) wills operative at discretion of another.
These different kinds of wills will be discussed in succeeding sec-
tions of this chapter. It may be noted here that wills are divided
by the civil law into (1) solemn and (2) privileged wills, the
latter corresponding to the common-law nuncupative wills. By
the same law a solemn will is divided into (1) nuncupative or
open wills and (2) sealed or written wills.* While codicils and

1Leathers v. Greenacre, 53 Maine 2See digest of statutes of the va-
561; Hubbard v. Hubbard, 12 Barb. rious states.
(N. Y.) 153. 3Castro v. Castro, 6 Cal. 158;
Dockum v. Robinson, 26 N. H. 372.

22
23 KINDS AND CLASSES § 21

contracts to make or not make wills do not properly belong in a
classification of wills, we have seen fit to discuss them in this
connection.

§ 21. Ordinary written wills—-The ordinary written will,
signed by the testator and attested as required by law, is the
normal will. This is the form of will used in Great Britain and
her principal colonial possessions, and in all the states of the
United States except Louisiana.* But where an ordinary or
English will is made in any state in the Union except Louisiana
it may be proved in the latter state if executed in accordance
with the laws of the jurisdiction where made.’ This form of
will is sometimes called the English will, being based mainly
upon the provisions of the Stat. 29, Charles I]. The English
colonists who settled in this country in the seventeenth century
brought with them the English law of wills as it then existed
in that country, and that law has been followed with slight vari-
ations in this country in such states as were founded by the
‘English. But not all the territory which is now included in the
United States was settled by the English. Louisiana, being set-
‘tled by the French, has adopted the French law of wills, which
‘in turn was based upon the Roman. In this territory settled by
colonists from France there has been a gradual change in the ©
law of wills from that of the mother country. In many respects
there has been a gradual yielding to the influence of the states
that have adopted the English law. Also in some of the western
and southern states which were settled by the Spanish, we find
the law of wills to be of Spanish origin. Generally speaking
then, the common law of England, which includes the statutes of
that country prior to our independence, became, and has been.
judicially regarded as the common law of this country in so far
as that law has not been changed by subsequent statutes.°

4See digest of statutes of the vari- ¢ O’Ferrall v. Simplot, 4 Iowa 381;
ous jurisdictions. Spaulding v. Chicago & N. W. R. Co.,

5 Louisiana Civ. Code (Merrick, 30 Wis. 110, 11 Am. Rep. 560; Co-
1912), art. 1596. burn v. Harvey, 18 Wis. 147.
§ 22 WILLS 24
Examples of the ordinary written will may be found in sub-

sequent sections of this work.’

§ 22. Nuncupative wills at common law.—A nuncupative
will may be defined to be an oral declaration made by a testator
in extremis, and in the presence of witnesses, respecting the dis-
position of his personal property after death. This form of wills
was abolished in England by the Statute of Wills of I Vict.
The common law permitted nuncupative dispositions, and its
principles are still alive, save so far as they are affected by stat-
utory provisions. As a general rule, however, such wills are not
favored by the courts, for the very obvious reason that “they
are at best uncertain productions, depending upon the attention,
intelligence, memory, and honesty of those surrounding the dy-
ing testator.”’® No such disposition of property can be made
where the statute requires all wills to be in writing.*®

Where nuncupative wills are authorized by statute, the authori-
ties very generally hold that the provisions of the statute must:
be strictly complied with,** yet there are other decisions holding
that a substantial compliance with the statute is all that is neces-
sary."* From the authorities it may be derived that a mariner
at sea may orally make an effectual disposition of his personal
property which shall have full testamentary effect, and that, in
addition to the rules regarding testamentary capacity and free-

7 See post ch, 31.
8 Hunter v. Bryant, 2 Wheat. (U.

Parsons v. Parsons, 2 Greenl.
(Maine) 298; Lucas v. Goff, 33

S.) 32, 4 L. ed. 177.

9In re Male’s Will, 49 N. J. Eq.
266, 24 Atl. 370. See also Mellor v.
Smyth, 220 Pa. 169, 69 Atl. 592.
, 10Stone’s Appeal, 74 Conn. 301, 50
Atl. 734; In re Thornton, 21 Wyo.
421, 133 Pac. 134.

11In re Kelby, Fed. Cas. No. 18306,
2 Hayw. & H. (D. C.) 149; Johnston
v. Glasscock, 2 Ala. 218; Scales v.
Thornton, 118 Ga. 93, 44 S. E. 857;
In re Grossman, 73 Ill, App. 224 (affd.
175 Ill. 425, 51 N. E. 750, 67 Am. St.
219); Pierce v. Pierce, 46 Ind. 86;

Miss. 629; Godfrey v. Smith, . 73
Nebr. 756, 103 N. W. 450, 10 Ann.
Cas. 1128n, 11 Prob. Rep. Ann. 1;
Bundrick v. Haygood, 106 N. Car.
468, 11 S. E. 423; In re Rutt, 200 Pa.
54, 50 Atl. 171; Smith v. Thur-
man, 2 Heisk. (Tenn.) 110;. Mitchell
v. Vickers, 20 Tex. 377; Brunson v.
Burnett, 2 Pinn. (Wis.) 185, 1
Chandi. 136.

12 Weir v. Chidester, 63 Ill, 453;
Arnett v. Arnett, 27 Ill, 247, 81 Am.
Dec. 227; Ridley v. Coleman, 1 Sneed.
(Tenn.) 616.
25 KINDS AND CLASSES § 22

dom from restraint, the only essentials are that the act shall be
performed with testamentary intent and shall be sufficiently ex-
plicit and intelligible to permit a finding of its purport and scope,
and that its execution must be proved by at least two witnesses.
Though at common law the requirement was finally developed
that the nuncupative transaction, to be effectual, should ordinarily
be made in the last sickness and in prospect of death, there is
no trace that this requirement ever applied to soldiers in actual
service or sailors at sea, and certainly there is none to show that
it now applies to them.** In many states persons in their last
illness are permitted to make nuncupative wills.** Where the
testator’s sickness has progressed to a point where he expects
death at any time, and, as preparatory thereto makes an oral
will and the circumstances are such that it can not be reduced
to writing, and death results from such illness, the nuncupative
will will be admitted to probate, if the statute in other respects
has been complied with.** One of the essential requisites to the
validity of a nuncupative will which must be made to appear is
that it was made in the last sickness of the testator, and that
by reason of the near approach of death there was neither time
nor opportunity for the testator to execute a written will. In
other words, there must be an urgent necessity or an emergency
to justify a nuncupation.** It is a well recognized rule that only
personal property can be disposed of by a nuncupative will and
that any attempt to pass real estate by this method is ineffectual.”

A similarity may be noted between a nuncupative will and a
gift causa mortis. Both of these methods of disposing of prop-
erty are testamentary in their character, and are consummated
only by the death of the donor; both are revocable by the donor

18In re O’Connor’s Will, 121 N. Y. Pierce v. Pierce, 46 Ind. 86; Mulli-
S. 903, gan v. Leonard, 46 Iowa 692; Wells
14 See Digest of Statutes, ch. 28. v. Harris, 5 J. J. Marsh. (Ky.) 4;
15 Harp v. Adams, 142 Ga. 5, 82 S. Campbell v. Campbell, 21 Mich. 438;

E, 246. Smithdeal v. Smith, 64 N. Car. 52;
16 Mellor v. Smyth, 220 Pa. 169, 69 Mitchell v. Stanton (Tex. Civ. App.),
Atl. 592. 139 S. W. 1033; In re Davis, 103 Wis.

17McLeod v. Dell, 9 Fla. 451; 455, 79 N. W. 761.
Sampson v. Browning, 22 Ga. 293;
§ 23 WILLS 26

during his life, and are consummated only upon his death; both
dispose of personal property only, and are made in extremis.
But a very marked distinction will also be noted, in that a gift
causa mortis requires a delivery of the property to complete the
act, while a nuncupative disposition contemplates no such de-
livery, but must be probated in accordance with statutory re-
quirements.**

§ 23. Nuncupative testaments under the civil law of Lou-
‘isiana.—A nuncupative will under the civil law of Louisiana
is very different from a nuncupative will at common law. Two
forms of such disposition are authorized by statute,*® one known
as the nuncupative testament by public act, and the other as the
nuncupative testament by private act. A nuncupative testament
by public act is one dictated by the testator to a notary public,
who reduces the same to writing. The disposition must be writ-
ten by the notary as it is dictated, putting down all of the tes-
tator’s intentions as expressed by him, with due regard to iden-
tity of thoughts and not of words.”® The instrument must then
be read to the testator in the presence of three witnesses resid-
ing in the place where the will is executed or five witnesses not re-
siding in such place. The testament must be signed by the testa-
tor, or if he does not know how or is not able to write his name,
express mention of his declaration and of the cause which hin-
ders him from signing must be made in the act.?1_ The testament
must also be signed by the witnesses, or at least one may sign
for all, if the others are unable to sign, and express mention
must be made in the will of the performance of these necessary
acts.”?

The nuncupative testament by private act must be written by
the testator himself, or by any other person at his dictation, or
even by one of the witnesses in the presence of five witnesses

18Tygard v. McComb, 54 Mo. 21Hennessy v. Woulfe, 49 La. Ann.

App. 88. 1376, 22 So. 394.
19 Louisiana Civ. Code (Merrick’s, 22 Dorries’ Succession, 37 La. Ann.
1912) ), arts. 1574-1588. 833; Dalton v. Wickliffe, 35 La. Ann.

20 Cauvien’s Succession, 46 La. Ann. 355.
1412, 16 So. 309.

“
27 KINDS AND CLASSES § 24

residing in the place where the will is executed or in the presence
of seven witnesses residing out of the place; or it will suffice if
in the presence of the same number of witnesses the testator
presents the paper on which he has written his testament or
caused it to be written out of their presence, and declares to
them that the paper contains his last will and testament.” In
either case the testament must be read by the testator to the wit-
nesses, or by one of the witnesses to the rest in the presence of
the testator. It must be signed by the testator if he knows how
or is able to sign, and by the witnesses, or at least by two of them
in case the others know not how to sign, and those of the wit-
nesses who do not know how to sign must affix their mark.

§ 24. Mystic wills —The mystic will is a form of written
will sometimes used in states settled by colonists from France
and Spain. It consists of a written testamentary disposition of
property, signed by the testator, whether written by himself or
another, which writing is inclosed in an envelope and sealed
in the presence of witnesses.** After such sealing the testator
makes a declaration to a notary in the presence of witnesses that
the envelope contains his will, that it was written by himself,
or another at his direction, and signed by him. The notary then
proceeds to draft the superscription upon the sealed envelope,
which superscription is then signed by the testator, the notary,
and the witnesses. The superscription must recite all the facts
required by the statute in order to render the instrument valid
as a mystic will. Thus it must recite that the testator presented
the envelope to the notary, closed and sealed, with the declara-
tion that it contained his last will.?* It is not essential that the
envelope be sealed with wax, the use of mucilage or wafers being
held sufficient for that purpose.** The object of sealing and clos-
ing is to guard against any substitution of another paper for that

23 Bourke v. Wilson, 38 La, Ann. 25 Stafford v. Villain, 10 La. 319;
320. Lewis v. Lewis, 5 La. 387.

24 ouisiana Civ. Code (Merrick’s, 26 Saint v. Charity Hospital, 48 La.
1912), arts. 1577-1580; Broutin v. 236, 19 So. 275.
Vassant, 5 Mart. (O. S.) (La.) 169,
182.
§ 25 WILLS 28
contained in the envelope, or any tampering with the paper con-

taining dispositions of the testator.

§ 25. Holographic wills—A holographic will is one writ-
ten entirely by the hand of the testator.*” In some jurisdictions
a holographic will is required to be written, dated, and signed
in the handwriting of the testator,* while in other jurisdictions
such a will is valid without a date.”®

In North Carolina and Tennessee no such will is recognized
unless found among the testator’s valuable papers, or came from
the custody of one with whom he had deposited it for safe keep-
ing.

Generally speaking such wills require no attestation; the only
requirement being that the instrument be in the handwriting of
the testator and signed by him in the manner required. by law.**
But in the absence of any statutory provision to the contrary,
holographic wills are required to be published, witnessed, and
attested in the same manner as other wills.*? However, the rule
respecting the method of publication of holographic wills is not

27In re Rand’s State, 61 Cal. 468,
44 Am. Rep. 555; Wilbourn v. Shell,
59 Miss. 205, 42 Am. Rep. 363; Neer
v. Cowhick, 4 Wyo. 39, 31 Pac. 862,
18 L. R. A. 588.

28 California: Civ. Code (1915),
§ 1277; Idaho: Rev. Stat. (1908),
§ 5728; Louisiana: Civ. Code (1912),
§ 1588; Montana: Rev. Codes (1907),
§ 4727; North Dakota: Comp. Laws
(1913), § 5648; Oklahoma: Rev.
Laws (1910), § 8347; Porto Rico:
Civ. Code (1913), §§ 3774-3780;
South Dakota: Comp. Laws (1913),
§ 1006, p. 185; Utah: Comp. Laws
(1907), § 2736; Quebec: Civ. Code
(1889), §§ 831, 853.

29 Arizona: Rev. Stats. (1913),
§ 1207; Arkansas: Kerby Dig. Stat.
(1904), § 8012; Indian Territory:
Stat. (1899), § 3564 (see Oklahoma
statute); Kentucky: Stat. (1915),
§ 4828; Mississippi; Code (1906),

§ 5078; Nevada: Rev. Laws (1912),
§ 6224; North Carolina: Code (1908),
§ 3113; Tennessee: Code (1896),
§ 3896; Texas: Vernon’s Sayles’ Civ.
Stat. (1914), art. 7857; . Virginia:
Ann. Code (1904), § 2514; West Vir-
ginia: Code (1916), p. 968; New
foundland: Consol. Stats. (1896), ch.
79, §§ 1, 2.

30 Harper v. Harper, 148 N. Car.
453, 62 S. E. 553.

21 Reagan v.
(Tenn.) 316.

32 Brengle v. Tucker, 114 Md. 597,
80 Atl. 224; Osborn v. Cook, il
Cush. (Mass.) 532, 59 Am. Dec. 155;
In re Berdan, 65 N. J. Eq. 681, 55
Atl. 728; In re Wilmerding, 75 Misc.
(N. Y.) 432, 135 N. Y. S. 516; In re
Ralston’s Estate, 1 Chest. Co. Rep.
(Pa.) 482; Neer v. Cowhick, 4 Wyo.
39, 31 Pac. 862, 18 L. R. A. 588.

Stanley, 11 Lea
29 KINDS AND CLASSES § 25
so severe as where the will is drawn by a scrivener.*® Where
attestation of a holographic will is not required the fact that one
or more witnesses has signed it does not render it invalid.** The
instrument need not be prepared according to any particular
form, but may be fragmentary,** or in the form of a letter.**
But two letters not connected by contents has been held not to
constitute a holographic will.?? Where the testator in his own
‘handwriting merely fills in the blanks of a printed form, the
instrument is not a valid holographic will.°* A testator may
make a valid holographic will while sojourning in a state where
such wills are not permitted, provided the state of his domicil rec-
ognizes such wills.*°

At common law holographic wills were of no greater sanctity
than other wills. They did not have any greater legal force than
a will written by a third person and signed by the testator, but
like any other testament, they are solemn acts depending for
their validity upon compliance with the forms prescribed by
law.*°

In jurisdictions where holographic wills are permitted they
are very common, doubtless because they can be made
secretly and with very little trouble. The fact, however, that
the testator can execute his own will without the aid of any
other person, sometimes results in the failure of the will, where
ignorant testators, attempting to write their wills without assist-
ance, fail to comply with some of the simple requirements of
the statutes. But where the testator is competent to write his own

33In re Holmberg’s Will, 145 N.
Y. S. 846, 83 Misc. 245; In re Leven-
ston’s Will, 142 N. Y. S. 829, 158
App. Div. 69.

34In re Soher’s Estate, 78 Cal. 477,
21 Pac. 8.

85In re Merryfield’s Estate, 167
Cal. 729, 141 Pac. 259; In re Stratton,
112 Cal. 513, 44 Pac. 1028.

36 Arendt v. Arendt, 80 Ark. 204,
96 S. W. 982; In re Chevallier’s
Estate, 159 Cal. 161, 113 Pac. 130;
Dougherty v. Holscheider, 40 Tex.
Civ. App. 31, 88 S. W. 1113.

37Jn re Anthony’s Estate, 121 Cal.
App. 157, 131 Pac. 96.

88In re Plumel’s Estate, 151 Cal.
77, 90 Pac. 192, 121 Am. St. 100;
Maris v. Adams (Tex. Civ. App.),
166 S. W. 475.

39Tn re Newell, 10 Hawaii 80;
Dreyer v. Reisman, 202 N. Y. 476, 96
N. E. 90; Ross v. Ross, 25 Can. Sup.
Ct. 307.

40Tn re Rand’s Estate, 61 Cal. 468,
44 Am. Rep. 555; Scott v. Harkness,
6 Idaho 736, 59 Pac. 556; In re Ar-
mant’s Will, 43 La. Ann. 310, 9 So.
§ 26 WILLS 30
will, or where he writes it under the advice of a competent attor-
ney, the fact that it is in his own handwriting may aid in its
construction and meaning, or furnish some presumptive evidence

of his sanity, or the absence of undue influence.**

§ 26. Contingent or conditional wills—A contingent or
conditional will is one that is to take effect upon the happening
or not of some event; or upon a certain set of circumstances
being or not being in existence at a time named, or during a
certain period.*? Where the testator’s lifetime is designated as
the period during which the condition is to be performed, full
effect will be given to the condition, and the will must be treated
as in force or not, according to the performance or nonper-
formance of the condition during such period.** Conditions
may also be imposed which are to be performed after the death
of the testator and before probate, and the validity of wills con-
taining such conditions depends upon performance during such
period.**

The contingency which operates only to defeat certain be-
quests will be considered elsewhere in this work, the discussion
here being confined to such wills as are usually made by the
testator before starting upon a journey, or in. contemplation of
a hazardous undertaking. There is a broad distinction between
a condition attached to a particular testamentary disposition, and
a condition attached to the operation of the instrument. A testa-
mentary disposition subject to a condition precedent will not be
admitted to probate after failure of the contingency on the hap-

35, 26 Am. St. 183; Baker v. Brown,
83 Miss. 793, 36 So. 539, 1 Ann. Cas.
371, 9 Prob. Rep. Ann. 282; In re
Noyes, 40 Mont. 190, 105 Pac. 1017,

42Damon v. Damon, 8 Allen
(Mass.) 192; Dougherty v. Hol-
scheider, 40 Tex. Civ. App. 31, 88 S.
W. 1113.

26 L. R. A. (N. S.) 1145n; Warwick
v. Warwick, 86 Va. 596, 10 S. E. 843,
6L.R. A. 775n.

41 Catholic University v. O’Brien,
181 Mo. 71, 79 S. W. 901; Riggin v.
Westminster College, 160 Mo. 570, 61
S. W. 803. :

43 Tarver v. Tarver, 9 Pet. (U. S.)
174; Likefield v. Likefield, 82 Ky.
589; Magee v. McNeil, 41 Miss. 17;
Robnett v. Ashlock, 49 Mo. 171;
Morrow’s Appeal, 116 Pa. St. 440.

44 Dudley v. Weinhart, 93 Ky. 402,
20 S. W. 308, 14 Ky. L. 434,
31 KINDS AND CLASSES § 27
pening of which it was to have taken effect.“* Thus if a testator,
about to make a journey, makes a testamentary disposition of
his property upon the condition that it should take effect if he
did not return, the fact that he does return defeats the contin-
gency upon which the disposition was to take effect.** It would
seem that if the happening of the event is merely referred to as
giving the reason or inducement for making the will, it is not
conditional ; but if it appears that the testator intended to dispose
of his property in case of the happening of the named event, it is
conditional.*?

Forms of contingent or conditional wills may be found in sub-
sequent sections of this work.**

§ 27. Alternative wills—Where a testator, after having
executed one or more wills, executes another in which he ex-
presses a contingency upon which that will or one of the former
wills is to become operative, such wills are said to be alternative
wills. To illustrate, a testator made a will on November 20,
1871; on January 13, 1873, he made a second will, to which
last will he made a codicil in January, 1873. By the codicil
he declared that “‘said will of 20th November, 1871, to be my
last will should I die before the first of March, 1873, otherwise,
the will of 13th January, 1873, shall be my last will.” He died
January 23, 1873. It was held that the first will made by him
was entitled to probate as his last will and testament.”

Where the testator executes two different wills, with a proviso
that in a certain event one shall be his will, and in a different

45In re White, Myr. Prob. (Cal.)
157; Eaton v. Brown, 20 App. (D. C.)
453; Oetjen v. Diemmer, 115 Ga.
1005, 42 S. E. 388; Dougherty v.
Dougherty, 4 Met. (Ky.) 25; Wag-
ner v. McDonald, 2 Harr. & J. (Md.)
346; Damon v. Damon, 8 Allen
(Mass.) 192; Magee v. McNeil, 41
Miss. 17, 90 Am. Dec. 354; Robnett
v. Ashlock, 49 Mo. 171; Cowley v.
Knapp, 42 N. J. L. 297; Morrow’s
Appeal, 116 Pa. St. 440, 9 Atl. 660, 2
Am, St. 616; Jacks v. Henderson, 1

Desaus. Eq. (S. Car.) 543; Dough-
erty v. Holscheider, 40 Tex. Civ.
App. 31, 88 S. W. 1113; French v.
French, 14 W. Va. 458; Parsons v.
Lanoe, 1 Ves. 189.

46 Morrow’s Appeal, 116 Pa.
440, 2 Am. St. 616, 9 Atl. 660.

47 Dougherty v. Holscheider, 40
Tex. Civ. App. 31, 88 S. W. 1113;
French v. French, 14 W. Va. 459.

48 See post ch. 31.

49In re Hamilton’s Estate, 74 Pa.
St. 69.

St:
§ 28 WILLs 32

event, the other shall be his will, the alternate instruments should
be clearly identified, and the contingency accurately expressed.

An example of an alternative will may be found in a subse-
quent chapter.”

§ 28. Joint and mutual wills—A joint will is one where
the same instrument is made the will of two or more persons
and is jointly signed by them. Such a will contained in a single
instrument is the will of each of the makers, and at the death of
one may be probated as his will, and be again probated at the
death of the other as the will of the latter. Such wills are
usually executed to make testamentary disposition of joint prop-
erty.** Wills may be joint or mutual, or both joint and mutual.
Mutual wills may be defined as the separate wills of two per-
sons, which are reciprocal in their provisions.6* A will that is
both joint and mutual is one executed jointly by two or more
persons, the provisions of which are reciprocal, and which shows
on its face that the devises are made one in consideration of
the other.

These several classes of wills have some characteristics that
distinguish them one from the other. A joint will which is not
reciprocal is simply the individual personal will of each of the
persons signing the same, and is subject to the same rules that
would apply if the wills were several. Mutual wills, that is,
where two persons execute wills reciprocal in their provisions
but separate instruments, may or may not be revocable at the
pleasure of either party, according to the circumstances and un-
derstanding upon which they were executed. To deprive either
party of the right to revoke such mutual wills, it is necessary to
prove such wills were executed in pursuance of a contract or a

50 See ch. 31. Miles, 89 Kans. 540, 132 Pac. 146,

51In re Anderson’s Estate, 14 Ariz. Ann. Cas. 1915 A, 363n; In re Diez’s
502, 131 Pac. 975; Romjue v. Ran- Will, 50 N. Y. 88; Ex parte Day, 1
dolph, 166 Mo. App. 87, 148 S. W. Bradf. Sur. (N. Y.) 476; In re Caw-
185; March v. Huyter, 50 Tex. 243. ley’s Estate, 136 Pa. 628, 20 Atl. 567,

52 In re Cross’ Estate, 163 Cal. 778, 10 L. R. A. 93.
127 Pac. 70; Frazier v. Patterson, 243 58 Frazier v. Patterson, 243 Ill. 80,
Till. 80, 90 N. E. 216, 27 L. R.A. (N. 90 N. E. 216, 27 L. R. A, (N. S.)
S.) 508. 17 Ann. Cas. 1003: Carle v. 508. 17 Ann. Cas. 1003.
33 KINDS AND CLASSES § 28
compact between the parties and that each is the consideration
for the other; and, even in cases where mutual wills have been
executed in pursuance of a compact or agreement between the
‘parties, the law appears to be well settled that either party may,
during the lifetime of both, withdraw from the compact, and
revoke the will to himself.*

A joint and mutual will is revocable during the joint lives by
either party, so far as relates to his own disposition, upon giv-
ing notice to the other ; but it becomes irrevocable after the death
of one of them, if the survivor takes advantage of the provi-
sions made by the other.°° Though the will of a husband and
wife be joint in form, it is not a joint will if the property devised
belongs to the husband or wife only.°* And where husband and
wife have joint power to devise, and have executed it by joint
will, it was held that neither of them could revoke the joint will
so made by a separate will."

As a general rule joint wills are not regarded with very great
favor by the courts, and are more apt to invite litigation than
separate independent reciprocal wills. The fact, however, that
they express the entire arrangement between the testators is an
element in their favor. Where several reciprocal wills are in-
tended to be mutually binding on the parties, and not subject to
change, it is advisable to embody such intention in a separate
agreement signed by the parties to be bound thereby.**

54Schumaker v. Schmidt, 44 Ala.
454, 4 Am. Rep. 135; Paton v. Rob-

380; Gould v. Mansfield, 103 Mass.
408, 4 Am. Rep. 573; In re Cawley’s

inson, 81 Conn. 547, 71 Atl. 730;
Lewis v. Scofield, 26 Conn. 455, 68
Am. Dec. 404; Evans v. Smith, 28
Ga. 98, 73 Am. Dec. 751; Allen v.
Allen, 28 Kans. 18; Hill v. Harding,
92 Ky. 76, 17 S. W. 199, 437, 13 Ky.
L. 380; In re Davis’ Will, 120 N. Car.
9, 26 S. E. 636, 38 L. R. A. 289, 58
Am. St. 771; In re Cawley’s Estate,
136 Pa. 628, 20 Atl. 567, 10 L. R.
A. 93.

55 Schumaker v. Schmidt, 44 Ala.
454, 4 Am. Rep. 135; Hill v. Harding,
92 Ky. 76, 17 S. W. 199, 437, 13 Ky. L.

3—Tuomp. WILLS,

Estate, 136 Pa. St. 628, 20 Atl. 567,
10 L. R. A. 93; Izard v. Middleton, 1
Desaus. Eq. (S. Car.) 116; Wyche v.
Clapp, 43 Tex. 543; Hobson v.
Blackburn, 1 Add. Ecc. 274.

56 Chaney v. Home Society, 28 Ill.
App. 621; Allen v. Allen, 28 Kans. 18.

57 Breathitt v. Whittaker, 8 B.
Mon. (Ky.) 530.

58 Edson v. Parsons, 155 N. Y. 555,
50 N. E. 265; Everdell v. Hill, 58
App. Div. (N. Y.) 151, 68 N. Y. S.
315,
§ 29 WILLS 34

Forms of joint and mutual wills may be found in subsequent
sections.°?

§ 29. Separate wills in relation to property in different
jurisdictions.—A testator may make separate wills respecting
property in different jurisdictions. Thus he may make two wills,
one relating to property in the jurisdiction where he lives, and
afterward one relating to property in a foreign country, and the
two wills will be deemed independent documents. In each will
the testator should declare that it should apply only to property
in a certain jurisdiction. An example of such declaration may
be found in a subsequent section..°° The testator may appoint a
different executor in each will, and the courts of each jurisdiction
will grant probate of the will relating to the property which is
within their jurisdiction at the date of the testator’s death.**

The reason for making more than one will disposing of prop-
erty in separate jurisdictions is apparent from the fact that the
formalities required are not uniform in all jurisdictions. Thus
where a testator is domiciled in a jurisdiction wherein a partic-
ular form of will is recognized and owns realty in a jurisdiction
wherein a different form of will is recognized, he is obliged to
make a will for each jurisdiction. Where there is likely to be
some question as to the testator’s domicil at the time of making
his will, the safer plan would be to make a will in conformity
with the laws of each particular jurisdictiori.

§ 30. Wills appointing executor only.—A will is valid if
made for the sole purpose of appointing an executor.*® And
this is so, even though the executor renounces probate.** The
power of sale may be given to an executor appointed by a will
which makes no direct disposition of property.®*

It would seem that an instrument in which no testamentary

59 See post ch. 31. * tan, 25 R. I. 87, 54 Atl. 928; Brown-
60 See ch. 31. rigg v. Pike, 7 P. Div. 61.
' 61In re Goods of Seaman (1891), 63 Sumner v. Crane, 155 Mass. 483,
Prob. 253: : 29 N. E, 1151, 15 L. R. A. 447.

"82Miller v. Miller, 32 La. Ann. 64 Barber v. Barber, 17 Hun (N.
437; Stewart v. Stewart, 177 Mass. Y.) 72.
493, 59 N. E. 116; Mulholland v. Gil- .
35 KINDS AND CLASSES § 31
disposition of property.has been attempted, but was executed
for the sole purpose of appointing an executor, is not entitled
to probate as a will if the person appointed as executor is dead
at the time the instrument is offered for probate.®

The form of a will appointing an executor only will be found

in a subsequent section.°®

§31. Wills operative at discretion of another.—While a
testator can not delegate authority to another to make a will for
him, nor empower another to revoke his will after death,®’ it has
been held that a testator may provide that an instrument in form
testamentary shall become operative or not at the election of an-
other.**

We submit that for a testator to make a provision either in his
will or codicil thereto that the disposition shall take effect or not at
the election of another made after the testator’s death is unsound
in principle, and its practice is apt to lead to much mischief. An
example of a will operative at the discretion of another will be
found in another section of this work.*°

§ 32. Codicils—We have said that a codicil is an addition
to, qualification, or alteration of, a will. It is practically a supple-
mental will, incomplete in itself, but merely an appendage to an
existing will, of which it is a part. It must be executed with all
the formalities required in executing wills.7° But an instrument
testamentary in character and executed with the formalities of a
will may operate as a codicil, although it be in the form of a
deed,”* power of attorney,” or a letter.”

A codicil is often made for the sole purpose of naming an ex-

65In re Pepper’s Estate, 148 Pa.
St. 5, 23 Atl. 1039.

66 See post ch. 31.

67In re White’s Will, 25 N. J. Eq.
501; In re North’s Goods, 6 Jur. 564.

68 Dudley v. Weinhart, 93 Ky. 401,
20 S. W. 308; In re Smith’s Goods,
L.R.1P.& D. 717.

69 See post ch. 31.

70Home for Incurables v. Noble,
172 U. S. 383, 43 L. ed. 486, 19 Sup.

Ct. 226; Watson v. Turner, 89 Ala.
220, 8 So. 20; In re Zeile, 74 Cal. 125,
15 Pac. 455; Green v. Lane, 45 N.
Car. 102; 2 Cooley’s Bl. Comm. 500.

71 Kelly v. Richardson, 100 Ala. 584,
13 So. 785.

72 Stewart v. Stewart, 177 Mass.
493, 59 N. E. 116.

73 Barney v. Hays, 11 Mont. 571, 29
Pac. 282, 28 Am. St. 495.
§ 32 36

WILLS
ecutor," but great care should be exercised in naming an executor
to take the place of one named in the will.7* And in case of the
death of the beneficiary during the lifetime of the testator, a codi-
cil is sometimes made to prevent a lapse. Its use is generally to
modify or vary the terms of the will, and does not revoke it unless
it is expressly stated that it is made for that purpose.”* Nothing
short of an absolute inconsistency will work a revocation by im-
plication.””

Codicils are included in the term “will” and all legal provisions
pertaining to wills must be understood as embracing codicils.”
The will and codicil are to be taken and construed as parts of one
and the same instrument, and the dispositions of the will are not
to be disturbed further than are necessary to give effect to the
codicil.”

For certain purposes the codicil brings the will to its own date;
it is to be regarded as a part thereof; both are to be construed as
one instrument, and they are alike subject to the rules of law gov-
erning the admission of parol evidence for the purpose of adding
to, varying, or explaining their respective conditions. The au-
thority of both rests upon the execution of the writing in accord-
ance with the statutory requirements.°°

The distinction between a will and a codicil exists only in their
relation to each other. Thus a will has the effect of revoking all
wills previously made; whereas a codicil recognizes the existence
of a previous will, to which it is supplementary, but leaves it in

74 Stewart v. Stewart, 177 Mass.
493, 59 N. E. 116.

77 Bosley v. Wyatt, 14 How. (U.
S.) 390, 14,L. ed. 468; Derby v.

7 In re Bailey’s Goods, L. R. 1 P.
& D. 628.

7 Colt v. Colt, 32 Conn. 422;
Bringhurst v. Orth, 7 Del. Ch. 178,
44 Atl. 783; Herzog v. Title Guar-
antee & Trust Co., 177 N. Y. 86, 97,
69 N. E. 283, 67 L. R. A. 146; Good-
win v. Coddington, 154 N. Y. 283, 48
N. E. 729; Wetmore v. Parker, 52 N.
Y. 450; In re Hoffman’s Will, 140
App. Div. 121, 124 N. Y. S. 1089;
Thompson v. Churchill, 60 Vt. 371, 14
Atl. 699,

Derby, 4 R. I. 414; Butler v. Green-
wood, 22 Beav. 303.

78 Fry v. Morrison, 159 Ill, 244, 44
N. E. 774.

79Herzog v. Title Guarantee &
Trust Co., 177 N. Y. 86, 69 N. E. 283,
67 L. R. A‘ 146; Goodwin v. Cod-
dington, 154 N. Y. 283, 48 N. E. 729:
Hard v. Ashley, 117 N. Y. 606, 23 N.
E, 177.

80 Dunham v. Averill, 45 Conn. 61,
29 Am. Rep. 642.
37 KINDS AND CLASSES § 33
full force except so far as it undertakes to alter its terms. If
the codicil is not attached to the original will, it must expressly
identify the will to which it relates.** Ifa codicil is executed with
all due formalities, and expressly confirms the will so far as it is
consistent with such will, it serves to republish the will, supplies
all omissions, and remedies all defects, if any, in the execution
of the will.** It is provided by statute in many states that the
word ‘“‘will” shall include or mean a codicil,** but in the absence
of such statute the word “will” does not cover or embrace the
codicil where anything appears to show that it was not intended
to do so.**
Examples of codicils are given in a subsequent section.*®

§ 33. Contracts to make or not make a will—There may
be a binding contract to make a will or not make a will, or to leave
property by will, if founded upon a valuable consideration.*’ The
consideration must be valuable, as distinguished from a merely
good or moral consideration.** A mere voluntary agreement or
gratuitous promise to provide for the promisee by will is unen-
forcible ;** nor will a court of equity decree a specific performance

81 Boyd v. Boyd, 1 McCrary (U.
S.) 268, 2 Fed. 138; Kelly v. Rich-
ardson, 100 Ala. 584, 13 So. 785; In
re Plumel’s Estate, 151 Cal. 77, 90
Pac. 192, 121 Am. St. 100; Flinn v.
Frank, 8 Del. Ch. 186, 68 Atl. 196;
Simon v. Middleton, 51 Tex. Civ.
App. 531, 112 S. W. 441.

82 Ferrell v. Gill, 130 Ga. 534, 61 S.
E, 131, 14 Ann. Cas. 471.

83 Camp v. Shaw, 52 Ill. App. 241;
McCurdy v. Neall, 42 N. J. Eq. 333,
7 Atl. 566; Mooers v. White, 6 Johns.
Ch. (N. Y.) 360. But see Phelps v.
Robbins, 40 Conn. 250, 271, 272;
Booth v. Baptist Ch., 126 N. Y. 215,
247, 28 N. E. 238; In re Emmons, 110
App. Div. (N. Y.) 701, 96 N. Y. S.
506.

84See Digest of Statutes, ch. 28.

85 Sloane v. Stevens, 107 N. Y. 122,
13 N. E. 618.

86 See post ch. 30.

87 Banks v. Howard, .117 Ga. 94,
43 S. E. 438; Napier v. Trimmier, 56
Ga. 600; Sutton v. Hayden, 62 Mo.
112; Gupton v. Gupton, 47 Mo. 37;
Wright v. Tinsley, 30 Mo. 389; Cobb
v. Macfarland, 87 Nebr. 408, 127 N.
W. 377; Teske v. Dittberner, 70
Nebr. 544, 98 N. W. 57, 113 Am. St.
802; Kelley v. Devin, 65 Ore. 211, 132
Pac. 535; Jordan v. Abney, 97 Tex.
296, 78 S. W. 486; Bridgewater v.
Hooks (Tex. Civ. App.), 159 S. W.
1004.

88 Schaadt v. Mutual L. Ins. Co., 2
Cal. App. 715, 84 Pac. 249; Grant v.
Grant, 63 Conn. 530, 29 Atl. 15, 38
Am. St. 379; Klussman v. Wessling,
238 Ill. 568, 87 N. E. 544.

89 Studer v. Seyer, 69 Ga. 125; Mc-
Clure v. McClure, 1 Pa. St. 374.
WILLS 38

§ 33
of a unilateral contract so to provide, which by its terms remains
executory until the death of the person so contracting.”

Such contracts are within the statute of frauds and must be in
writing if they affect real property.*! But the courts of some
states have held that contracts of this character may be estab-
lished by oral testimony.°** A partial performance of a verbal
contract of this character will take it out of the operation of the
statute of frauds when a breach of the contract would work a
fraud on the party so performing.®** Where a will is executed in
pursuance of a verbal contract to make same, such execution
takes the contract out of the statute of frauds.*

A will executed in pursuance of a contract is nevertheless re-
vocable, but the testator’s estate will be liable for the breach.”
Where services have been performed under a verbal contract to
devise real property by will, and the contract being unenforcible
by reason of the statute of frauds, an action will lie against the
personal representative of the decedent on a quantum meruit to

 

90 Colt v. O’Connor, 59 Misc. (N.
Y.) 83, 109 N. Y. S. 689.

91 Pond v. Sheean, 132 Ill. 312, 23
N. E. 1018, 8 L. R. A. 414; Austin
v. Davis, 128 Ind. 472, 12 L. R. A.
120, 26 N. E. 890, 25 Am. St. 456;
Benge v. Hiatt, 82 Ky. 666, 6 Ky. L.
714, 56 Am. Rep. 912; Gould v.
Mansfield, 103 Mass. 408, 4 Am. Rep.
573; DeMoss v. Robinson, 46 Mich.
62, 8 N. W. 712, 41 Am. Rep. 144;
Carney v. Carney, 95 Mo. 353, 14 S.
W. 729; Pflugar v. Pultz, 43 N.
J. Eq. 440, 11 Att. 123; Lisk v.
Sherman, 25 Barb. (N. Y.) 433; Sha-
han v. Swan, 25 Ohio L. Bul. 69;
Campbell v. Taul, 3 Yerg. (Tenn.)
548; Maddison v. Alderson, L. R. 8
App. Cas. 467.

92 Healy v. Healy, 55 App. Div. 315,
66 N. Y. S. 927, 8 Ann. Cas, 325 (affd.
166 N. Y. 624). But see Dicken v.
McKinlay, 163 Ill. 318, 45 N. E. 134,
54 Am. St. 471 (as to lands); Sha-
han v. Swan, 48 Ohio St. 25, 26 N. E.

222, 29 Am. St. 517 (as to goods and
lands). .

93 Carmichael v. Carmichael, 72
Mich. 76, 40 N. W. 173, 1 L. R. A.
596, 16 Am. St. 528; Svanburg v. Fos-
seen, 75 Minn. 350, 78 N. W. 4, 43 L.
R. A. 427,'74 Am. St. 490; Ackerson v.
Fly, 99 Mo. App. 116, 72 S. W. 706;
Best v. Gralapp, 69 Nebr. 811, 96 N.
W. 641, 99 N. W. 837; Winne v.
Winne, 166 N. Y. 263, 59 N. E. 832,
82 Am. St. 647; Rhodes v. Rhodes, 3
Sandf. Ch. (N. Y.) 279; Shahan v.
Swan, 48 Ohio St. 25, 26 N. E. 222,
29 Am. St. 517.

94Naylor v. Shelton, 102 Ark. 30,
143 S. W. 117, Ann. Cas. 1914A,
394n; Dalby v. Maxfield, 244 Ill. 214,
91 N. E. 420, 135 Am. St. 312; Jack
v. Hooker, 71 Kans. 652, 81 Pac. 203;
Johnson v. Hubbell, 10 N. J. Eq. 332,
66 Am. Dec. 773.

95 Day v. Washburn, 76 N. H. 203,
81 Atl. 474; Van Horn v. Demarest,
76 N. J. Eq. 386, 77 Atl. 354; Dilger
39 KINDS AND CLASSES § 33
recover the value of the services.°* Where there has been a defi-
nite and certain agreement to make a will, or to make a certain
testamentary disposition and the promisee has changed his condi~
tion and relations so that a refusal to complete the agreement
would be a fraud upon him, the relief granted to the promisee
is not by ordering the will to be made in pursuance of the agree-
ment, but by regarding the property in the hands of the heirs,
devisees, assignees, or representatives of the deceased promisor,

as impressed with a trust in favor of the promisee.*”

v. McQuade, 158 Wis. 328, 148 N. W.
1085.

96 Grant v. Grant, 63 Conn. 530, 29
Atl. 15, 38 Am. St. 379; Watson v.
Watson, 1 Houst. (Del.) 209; Mills
v. Joiner, 20 Fla. 479; Hudson v.
Hudson, 87 Ga. 678, 13 S. E. 583, 27
Am. St. 270; Kettry v. Thumma, 9
Ind. App. 498, 36 N. E. 919; McDan-
iel v. Hutcherson, 136 Ky. 412, 124 S.
W. 384; Hamilton v. Thirston, 93
Md. 213, 48 Atl. 709; In re Williams,
106 Mich. 490, 64 N. W. 490; Schwab
v. Piero, 43 Minn. 520, 46 N. W. 71;
Hall v. Getman, 121 Mo. App. 630, 97
S. W. 607; Howe v. Day, 58 N. H.
516; Smith v. Smith’s Admrs., 28 N.
J. L. 208, 78 Am. Dec. 49; Robinson
v. Raynor, 28 N. Y. 494; Goodloe v.
Goodloe, 116 Tenn. 252, 92 S. W. 767,
6L. R. A. (N. S.) 703; Raycraft v.
Johnston, 41 Tex. Civ. App. 466, 93
S. W. 237; Taylor v. Thieman, 132
Wis. 38, 111 N. W. 229, 122 Am. St.
943.

97 Whitney v. Hay, 15 App. Cas.
164 (affd. 181 U. S. 77, 21 Sup. Ct.
537, 45 L. ed. 758) ; Manning v. Pip-
pen, 86 Ala. 357, 5 So. 572, 11 Am.
St. 46; Naylor v. Shelton, 102 Ark.
30, 143 S. W. 117, Ann. Cas. 1914 A,
394n; Keefe v. Keefe, 19 Cal. App.
310, 125 Pac. 929; Carl v. Northcutt,
48 Colo. 47, 108 Pac. 994; Holcomb
v. Gillet, 2 Root (Conn.) 448; Belt v.

Lazenby, 126 Ga. 767, 56 S. E. 81;
Evans v. Moore, 247 Ill. 60, 93 N. E.
118, 139 Am. St. 302; Warner v. Mar-
shall, 166 Ind. 88, 75 N. E. 582; Baker
v. Syfritt, 147 Iowa 49, 125 N. W.
998; Dillon v. Gray, 87 Kans 129, 123
Pac. 878; Semmes v. Worthington,
38 Md. 298; Howe v. Watson, 179
Mass. 30, 60 N. E. 415; Kundinger v.
Kundinger, 150 Mich. 630, 114 N. W.
408; Haubrich v. Haubrich, 118 Minn.
394, 136 N. W. 1025; Anding v. Da-
vis, 38 Miss. 574, 77 Am. Dec. 658;
Taylor v. Hudson, 145 Mo. App. 377,
129 S. W. 261; Burns v. Smith, 21
Mont. 257, 53 Pac. 742, 69 Am. St.
653; Moline v. Carlson, 92 Nebr. 419,
138 N. W. 721; Day v. Washburn, 76
N. H. 203, 81 Atl. 474; Clawson v.
Brewer, 67 N. J. Eq. 201, 58 Atl. 598;
Lasher v. McDermott, 144 App. Div.
CN. Y.) 843, 129 N. Y. S. 416; Earn-
hardt v. Clement, 137 N. Car. 91, 49 S.
E. 49; Emery v. Darling, 50 Ohio St.
160, 33 N. E. 715; Richardson v.
Orth, 40 Ore. 252, 66 Pac. 925, 69
Pac. 455; Brinker v. Brinker, 7 Pa.
St. 53; Spencer v. Spencer, 25 R. I.
239, 55 Atl. 637; Fogle v. St. Michael
Church, 48 S. Car. 86, 26 S. E. 99;
McCullom v. Mackrell, 13 S. Dak.
262, 83 N. W. 255; Starnes v.
Hatcher, 121 Tenn. 330, 117 S. W.
219; Jordan v. Abney, 97 Tex. 296,
78 S. W. 486; Brinton v. VanCott, 8
§ 33 WILLS 40

Forms of contracts to make or not make a will may be found in
a subsequent section.

Utah 480, 33 Pac. 218; Smith v. Wis. 378, 88 N. W. 218; Roberts v.
Pierce, 65 Vt. 200, 25 Atl. 1092; Mil- Hall, 1 Ont. 388; Lewis v. Maddocks,
ton v. Kite, 114 Va. 256, 76 S. E. 313; 8 Ves. Jr. 150.

Prince v. Prince, 64 Wash. 552, 117 98 See post ch, 31.

Pac. 255; Rodman v. Rodman, 112
CHAPTER III

LAWS BY WHICH WILLS ARE GOVERNED

SECTION ;

40. Where a will may be executed.

41. Laws governing wills of real
estate.

SECTION

46. Laws governing wills executing
powers,

47. Laws governing revocation.

42. Laws governing wills of personal 48. Laws governing election, dower

property. and disinheritance.
43. Effect of changing domicil after 49. Laws governing construction and
making will. interpretation.

44. Laws governing capacity of bene- 50. Effect of legislative enactment
ficiary to take. subsequent to execution of will.

45. Laws governing trusts created by 51. Effect of legislative enactment
wills. after testator’s death.

§ 40. Where a will may be executed.—As a general rule
the place of making a will is immaterial, the only requirement
being that it be executed according to the law of the testator’s
domicil. But in executing a will in a foreign state or country
care should be taken, if possible, to have the will witnessed by
persons of the same nationality as the testator and whose domicil
is the same as that of the testator. “The will of a person whose
domicil at the time of his death is in this state is a domestic will,
and properly admitted to original probate at the place of such
domicil without regard to where the will was made or where such
person died.”* The statutes of many states provide that a will
made in a foreign state or country and valid according to the
laws of such state or country may be proved and allowed in the
state enacting such statute, and shall thereupon have the same
effect as if it had been executed according to the laws of the latter
state.2 A testator domiciled in a state where such a statute is in
effect may go into a foreign state and there execute his will with

1Converse v. Starr, 23 Ohio St. 2 See digest of statutes of the vari-
491. See also Manuel v. Manuel, 13 ous states.
Ohio St. 458.

41
§ 41 WILLS 42
only two witnesses as there required, and the will may be probated
in the state of his domicil, although the law therein requires three
witnesses to a will.? While this is true, the better practice would
be to execute a will according to the law of the testator’s domicil.

The laws affecting the testamentary disposition of property by
subjects of the United States and of foreign powers are embodied
in certain treaties and conventions made from time to time be-
tween this country and foreign governments, extracts from which
treaties will be found in a separate chapter of this work.*

§41. Laws governing wills of real estate—The intentions
of testators have frequently failed because they executed their
wills according to the forms prescribed by the laws of their re-
spective domiciles, which were not in accordance with the laws of
the states where some of their lands were situated, and most at-
torneys have doubtless realized the difficulties arising from so
many statutes on the subject, when called upon to hastily draw a
will for a person who owned real estate in different jurisdictions.

It is a well settled policy of the law in this country, except
where not modified by statute, that wills of real estate or affecting
real estate must be executed in accordance with the law of the
state where the real estate is situated, and that the provisions dis-
posing of such real estate must be valid under the laws of such
state. It is not enough that such will and the provisions thereof
are valid in the state of the testator’s domicil.° This rule includes
not only the form and mode of execution of a will, but also the
lawful power and authority of the testator to make such disposi-

3 Bayley v. Bayley, 5 Cush. (Mass.) 111, 54 So. 579; Brosnahan v. Turner,

245; Crippen v. Dexter, 13 Gray 16 La. 433; Sevier v. Douglas, 44 La.
(Mass.) 330. Ann. 605, 10 So. 804; Rackemann v.
4See ch. 29, Taylor, 204 Mass. 394, 90 N. E. 552;

5 Clark v. Clark, 178 U. S. 186, 44
L. ed. 1028, 20 Sup. Ct. 873; Higgins
v. Eaton, 188 Fed. 938; Blacksher Co.
v. Northrup,. 176 Ala. 190, 57 So.
743, 42 L. R. A. (N. S.) 454n; Lum-
ber Co. v. Files, 104 Ark. 600, 149
S. W. 908; Lucas v. Tucker, 17 Ind.
41; Succession of Herber, 128 La,

In re Turner, 82 Misc. 25, 143 N. Y.
S. 692; White v. Howard, 46 N. Y.
144, 52 Barb. 294; Kessler v. Kessler,
2 Pa. Co. Ct. 522; In re Stewart’s
Estate, 26 Wash. 32, 66 Pac. 148, 67
Pac. 723; Ford v. Ford, 70 Wis. 19,
33 N. W. 188, 5 Am. St. 117.
43 LAWS BY WHICH WILLS ARE GOVERNED § 42
tion.® It also includes the capacity of the testator to make such
disposition.’ The rule also includes the power to devise after-
acquired property,* the power to devise property held in common,”
the power to disinherit by devise,*® the application of the rule in
Shelley’s Case,** the application of the Rule against Perpetuities,*”
and the application of the doctrine of equitable conversion.**

There are cases holding that a will disposing of real estate is
governed by the law of the testator’s domicil, unless it appears
from the will that he drew it with reference to the law of the
place where the land was situated.**

The rule that the lex rei sitae governs a will devising real prop-
erty has been modified in some states by the adoption of the rule
that a will is valid to pass land anywhere if it is valid by the law
of the jurisdiction where the testator was domiciled at the time of
his death.

§ 42. Laws governing wills of personal property.—The
general rule is that a will disposing of personal property is gov-
erned by the law of the testator’s domicil at the time of his
death.** This rule, however, is subject to the all important limi-

6 Ford v. Ford, 70 Wis. 19, 33 N.
W. 188, 5 Am. St. 117.

7 Evansville Ice & C. S. Co. v. Win-
sor, 148 Ind. 682, 48 N. E. 592.

8 Wynne v. Wynne, 23 Miss. 251,
27 Am. Dec. 139; Frazier v. Boggs, 37
Fla. 307, 20 So. 245.

9 Pratt v. Douglas, 38 N. J. Eq. 516.

10In re Lewis’ Estate, 32 La. Ann.
385.

11De Vaughn v. Hutchinson, 165
U. S. 566, 41 L. ed. 827, 17 Sup. Ct.
461.

12Hobson vy. Hale, 95 N. Y. 588;
Ford v. Ford, 80 Mich. 42, 44 N. W.
1057.

18 Clark’s Appeal, 70 Conn, 195, 39
At. 155,

14 Harrison v. Nixon, 9 Pet. (U. S.)
483, 9 L. ed. 201; Higgins v. Eaton,
188 Fed. 938; Keith v. Eaton, 58
Kans. 732, 51 Pac. 271; Lincoln v.

Perry, 149 Mass. 368, 21 N. E. 671,
4 L. R. A. 215; Ford v. Ford, 80
Mich. 42, 44 N. W. 1057; Washburn
v. Van Steenwyck, 32 Minn. 336, 20
N. W. 324; Adams v. Farley (Miss.),
18 So. 390; Ford v. Ford, 70 Wis.
19, 33 N. W. 188, 5 Am. St. 117, 72
Wis. 621, 40 N. W. 502.

15Green v. Alden, 92 Maine 177,
42 Atl. 358; Lyon v. Ogden, 85 Maine
374, 27 Atl. 258.

16 Higgins v. Eaton, 183 Fed. 388; In
re Lathrop’s Estate, 165 Cal. 243, 131
Pac. 752; Whitney v. Dodge, 105 Cal.
192, 38 Pac. 636; In re Apple’s Estate,
66 Cal. 432, 6 Pac. 7; Yore v. Cook,
67 Til. App. 586; Succession of
Robert, 2 Rob. (La.) 427; Flatauer v.
Loser, 156 App. Div. 591, 141 N. Y. S.
951; Congregational Unitarian Soc.
v. Hale, 29 App. Div. 396, 51 N. Y. S.
704, 27 Civ. Proc. R. 303; Garvey v.
§ 43 WILLS 44
tation that the law of the domicil controls if there is no law to
the contrary in the place where the personal property is situ-
ated.*” : :

It is the policy of the law that a testator shall have but one
will as to his personal estate in whatever state of the Union it
may be situated, and that the law of the state of his domicil
determines what that will is, and that it becomes operative and
binding on all whose rights under it are in question, and con-
trols the distribution of the personal estate wherever situated.
A sound public policy demands that this should be the rule.**

The rule generally applies to the form of the will and the
capacity of the testator to make same.’® But there is a differ-
ence of opinion as to whether the rule applies to testamentary
capacity.?°

The general principles which refer wills of personal property
to the law of the testator’s domicil, are frequently stated by the
courts in very broad and comprehensive terms, which are cal-
culated to convey the impression that every question that may
arise in respect to a will of personal property is necessarily and
under all circumstances to be determined solely by the law of
the testator’s domicil; but these general statements, though doubt-

_less sufficiently accurate for the immediate purposes of the cases
in which they are made, are not to be accepted without qualifi-
cation and limitation as will be subsequently shown in this section.
While very many of the questions that relate to wills of per-
sonal property are to be referred to the lex domicilii, the law of
the domicil not infrequently yields wholly or partially to the law
of another jurisdiction. A will may have all the forms and requi-
sites to pass title to personalty within the lex domicilii, yet the

Horgan, 38 Misc. 164, 77 N. Y. S.
290; In re Robertson’s Will, 23 Misc.
450, 51 N. Y. S. 502; Mapes v. Amer-
ican Home Missionary Soc., 33 Hun

(N. Y.) 360; In re Anderson, 78.

Misc. 713, 140 N. Y. S. 230; Kerr v.
Dougherty, 59 How. Pr. (N. Y.) 44.

17In re Lathrop’s Estate, 165 Cal.
243, 131 Pac. 752.

18 Higgins v. Eaton, 188 Fed. 938.

19 Sickles v. New Orleans, 80 Fed.
868; Handley v. Palmer, 91 Fed. 948;
Chamberlain v. Chamberlain, 43 N. Y.
424; Stokes v. Stokes, 78 L. T. 50,
67 L. J. P. D. & A. (N. S.) 55;
Ross v. Ross, 25 Can. Sup. Ct. 307.

20 Story Conflict of Laws, § 465 et.
seq.
45 LAWS BY WHICH WILLS ARE GOVERNED § 43
validity of particular bequests will depend upon the law of the
domicil of the legatee.** If the will contains particular bequests
of funds to be transmitted to, and administered for particular
purposes in, another state, the validity of such particular be-
quests must be tested by the law of the state to which the fund
is, by the terms of the will, to be transmitted and in which it is
to be administered.”? A bequest in a will executed by a testator
residing in one state, valid if the legatee resides in such state, but
void by the law of the legatee’s domicil, is consequently void in
the state where the testator resided and executed the will.* <A
bequest by a citizen of one state to an unincorporated associa-
tion in another state will be declared void in such other state
if made contrary to the law thereof, although it may be valid
in the state where made.** Where a testamentary disposition of
personal property was not executed according to the law of the
testator’s domicil, but was executed according to the law of the
place where made and where the property was situated, it was
held that it was not entitled to probate in the jurisdiction where
made.”®

§ 43. Effect of change of domicil after making will—As a
general rule if a testator makes a will, valid by the law of the
state where he is domiciled at the time of its execution, but
subsequently changes his domicil to a state wherein he would
not possess capacity to make a will, or by whose law his will is
not executed properly, and continues to make the latter state his
domicil until his death, the law of the latter state will control
his will and hold it invalid.2* Where a testator makes a will,
valid by the law of the place where he is domiciled, and after-
ward changes his domicil to a place by whose laws such a will

21 Chamberlain v. Chamberlain, 43
N. Y. 424; Congregational Unitarian
Soc. v. Hale, 29 App. Div. 396, 51
N. Y. S. 704, 27 Civ. Proc. R. 303.

22 Sickles v. New Orleans, 80 Fed.
868.

23Tn re Robertson’s Will, 23 Misc.
450, 51 N. Y. S. 502.

24Mapes v. American Home Mis- |
sionery Soc., 33 Hun (N. Y.) 360.

25 Manuel v. Manuel, 13 Ohio St.
458; In re Flannery’s Will, 24 Pa.
St. 502.

26 Nat v. Coons, 10 Mo. 543; Shute
v. Sargent, 67 N. H. 305, 36 Atl. 282;
McCune v. House, 8 Ohio 144, 31
Am. Dec. 438,
5 4 WILLS 46
is invalid, but subsequently moves back from the latter domicil
to the former wherein his will was made, and dies there, the will
may be probated there also.”

It is provided by statute in some jurisdictions that a change of
domicil by the testator does not invalidate a prior will.* But
such statutes are not always satisfactory, and where the testator
has changed his domicil subsequent to the execution of his will,
it is advisable to re-execute the will in accordance with the laws

of the last domicil.?®

§44. Law governing capacity of beneficiary to take.—
The rule that a will devising real estate is governed by the law
of the place where the real estate is situated includes the capacity
of the devisee to take under the will.°° The capacity of a legatee
to take under a will bequeathing personalty is governed by the
law of the domicil of the legatee.** “If, within the lex domicilii,
a will has all the forms and requisites to pass the title to per-
sonalty, the validity of particular bequests will depend upon
the law of the domicil of the legatee and of the government to
which the fund is by the terms of the will to be transmitted for
administration, and the particular purposes indicated by the tes-
tator.”*?

If the legatee be a corporation and under the law of the state
of its creation it is prohibited from holding more property than
it already holds, it is held that a devise to such corporation of
lands situate in a state other than the one in which the corpora-
tion was created, is a nullity.** Other courts, however, have
held such devise to be valid, on the theory that the state under
whose laws the corporation was created can alone raise the ques-
tion of the power of the corporation to hold the land, the heirs

£7 Story Conflict of Laws, § 473.

28 Montana: Rev. Codes (1907),
§ 4735; New Brunswick: Consol.
Stats. (1903), ch. 160, § 31.

29 Cruger v. Phelps, 21 Misc. (N.
Y.) 252, 47 N.Y. S. 61.

30 Jones v. Habersham, 107 U. S.
174, 27 L. ed. 401, 2 Sup. Ct. 336;
White v. Howard, 46 N. Y. 144.

31 Congregational Unitarian Soc. v.
Hale, 29 App. Div. (N. Y.) 396, 51
N. Y. S. 704; In re Leo-Wolf, 25
Misc. (N. Y.) 469, 55 N. Y. S. 650.

32 Chamberlain v. Chamberlain, 43
N. Y: 424.

33 Starkweather v. Bible Society, 72
Ill. 50, 22 Am. Rep. 133; DeCamp v.
Dobbins, 31 N. J. Eq. 671; In re Mc-
Graw’s Estate. 111 N. V. 664. 19 N. FE.
47 § 45

LAWS BY WHICH WILLS ARE GOVERNED
and devisees being incapable of raising such question.** The
competency of a municipality, or municipal authorities, in another
state or country, to accept and administer a charitable bequest,
is to be determined by the law of that state or country, and not
by the law of the testator’s domicil.**

§45. Law governing trusts created by will—Where a
will creates a trust in relation to lands devised, its validity is
governed by the law of the place where the land is situated.**

The construction and interpretation of a will in respect to a
trust of personalty, and likewise the validity of the disposition,
‘the rights, powers, and duties of the trustee and all questions of
title between him and the cestui que trust arising under the will,
are governed by the law of the testator’s domicil at the time of
his death, unless it is manifest from the will that the testator had
in mind the law of another jurisdiction.*”

Although, within the law of the domicil of the testator, a will
has all the forms and requisites to pass the title to movable prop-
erty, nevertheless, if the will contains a particular bequest of
funds to be transmitted and administered for a particular pur-
. pose in another state, the validity of such particular bequest must
be tested by the law of the state to which the fund is, by the
terms of the will, to be transmitted and administered.**

The law of the testator’s domicil governs the validity of a

233, 2 L. R. A. 255n; Congregational
Society v. Hale, 29 App. Div. 396, 51

Brewer, 136 N. Y. 128, 32 N. E. 558,
18 L. R. A. 458.

N. Y. S. 704, 27 Civ. Proc. R. 303;
House of Mercy v. Davidson, 90 Tex,
529, 39 S. W. 924.

34 Jones v. Habersham, 107 U. S.
174, 27 L. ed. 401, 2 Sup. Ct. 336;
Stickney’s Will, 85 Md. 79, 36 Atl.
654, 35 L. R. A. 693, 60 Am. St. Rep.
308; Hanson v. Little Sisters of the
Poor, 79 Md. 434, 32 Atl. 1052, 32
L. R. A. 293.

35 Sickles v. New Orleans, 80 Fed.
868; In re Huss, 126 N. Y. 537, 27
N. E. 784, 12 L. R. A. 620; Hope v.

36 Ford v. Ford, 80 Mich. 42, 44 N.
W. 1057.

87 Harrison v. Nixon, 9 Pet. (U. S.)
483, 9 L. ed. 201; Whitney v. Dodge,
105 Cal. 192, 38 Pac. 636; Rosenbaum
v. Garrett, 57 N. J. Eq. 186, 41 Atl.
252; Dammert v. Osborn, 141 N. Y.
564, 35 N. E. 1088; Penfield v. Tower,
1 N. Dak. 216, 46 N. W. 413; Lanius
v. Fletcher, 100 Tex. 550, 101 S. W.
1076. ;

38 Sickles v. New Orleans, 80 Fed.
868; Chamberlain v. Chamberlain, 43
N. Y. 424.
§ 46 WILLS , 48

spendthrift trust of personal property created by will, at least
when the property is situated within that jurisdiction.®*® And
where a testator, residing in Pennsylvania and owning land in
Georgia of which he is about to dispose, creates a trust for the
benefit of his sons, and places the title in his executors and trus-
tees, the trust was held valid in Pennsylvania, and the property.
devised in trust passed to the executors and trustees under the
will.*°

§46. Laws governing wills executing powers.—In the
absence of a statute to the contrary, the law of the domicil
of a donor of a power created by will controls in determining
the validity of the execution of such power.*t This rule is based
upon the theory that the person authorized by the donor to exe-
cute the power is merely the medium through which the donor
designates the person who is to receive the benefit of the power;
and that the latter takes from the donor under the original will
and not under the appointment by the person authorized to exe-
cute the power.*?

Where a testator, domiciled in one jurisdiction, left by will a
sum in trust to invest the same and pay the income to his wife
during her life, and upon her decease one-half of the sum to such
person and in such manner as she by her will duly executed ac-
cording to the law of her domicil, may order and appoint, and
his widow, the donee of the power, removed and was domiciled
in another jurisdiction, it was held that her will executed there
according to the laws thereof, would, so far as the character
of the instrument is concerned, be a valid execution of the
power.** But it has been held that the donor of the power may
prescribe the particular mode in which it is to be exercised, and
if he prescribes that it must be executed according to the law of

39 Merritt v. Corlies, 54 N. Y. St. 24 Atl. 530, 16 L. R. A. 367; Tatnall

215, 24 N. Y. S. 561. v. Hankey, 2 Moore P. C. 342.
40 Sinnott v. Moore, 113 Ga. 908, 42Van Wert v. Benedict, 1 Brad.
39S. E. 415. . (N. Y.) 114.

41 Sewall v. Wilmer, 132 Mass. 131; 43 Aubert’s Appeal, 119 Pa. St. 48,
Bingham’s Appeal, 64 Pa. St. 345; 1 Atl. 336.
Cotting v. De Sartiges, 17 R. I. 668,
49 LAWS BY WHICH WILLS ARE GOVERNED Ԥ 47

his domicil, it is not duly executed if executed according to the
law of the domicil of the donee.**

§ 47. Laws governing revocation.—The revocation of a
will devising real property is governed by the law of the place
where the land is situated, whatever be the mode of revocation.*®

The effect of the act of revocation of wills of personal prop-
erty is governed by the law of the testator’s domicil at the time
of the act of revocation in all cases where the operation of the
revocation is immediate.*® Thus where an unmarried woman
made a will while domiciled in New Jersey, and subsequently
married in that state, but afterward moved to New York, where
she died, it was held that the will was revoked by her marriage
under the New York statute declaring that a will executed by an
unmarried woman shall be deemed revoked by her subsequent
marriage, although by the law of New Jersey. the subsequent
marriage did not have that effect.*7 In another case the testator
at the time of executing his will disposing of personal property
was domiciled in a state wherein the subsequent birth of a child
revoked the will, but at the time of the testator’s death he was
domiciled in a jurisdiction by the law of which the subsequent
birth of a child did not revoke a will, it was held that the law
of the domicil of the testator at the time of the execution of
the will governed, and the will was held revoked, by the subse-
quent birth of a child.*

§ 48. Laws governing election, dower, and disinheritance.
—The law of the testator’s domicil at the time of the execution
of the will controls questions of election with regard to the per-

44 Blount v. Walker, 28 S. Car. 545,
6S. E. 558.

45De Vaughn v. Hutchinson, 165
U. S. 566, 41 L. ed. 827, 17 Sup. Ct.
461; Ware v. Wisner, 50 Fed. 310;
Clark’s Appeal, 70 Conn. 195, 39 Atl.
155; Frazier v. Boggs, 37 Fla. 307,
20 So. 245; Harrison v. Weatherly,
+80 Ill. 418, 54 N. E. 237; Evansville
Ice & Cold Storage Co. v. Winsor,
148 Ind. 682, 48 N. E. 592; Sevier v.

4—Tuomp. WILLS.

Douglass, 44 La. Ann. 605, 10 So.
804; Pratt v. Douglass, 38 N. J. Eq.
516; Knox v. Jones, 47 N. Y. 389;
In re Page’s Estate, 75 Pa. St. 87;
Atkinson v. Staigg, 13 R. I. 725.

46 Welsh v. Pounders, 36 Ala. 668.
. 4TIn re Coburn, 9 Misc. 437, 30 N.
Y. S. 383.

48 Senac’s Succession, 2 Rob. (La.)
258.
S47 WILLS 50
sonalty of the testator,*® while the lex rei sitae governs with
respect to real property.°°’ A widow can not elect in one state
to abide by the will of her deceased husband and abandon it in
another.**

The law of the testator’s domicil at the time of his death,
which entitles the widow to a certain portion of his personal
property, governs notwithstanding he made a will while domi-
ciled in another state.*? Ordinarily, however, a statutory right
of a husband or wife to a certain portion of the other’s property
on the death of the latter is not a vested right, but a mere incho-
ate interest which may be lost by a change of domicil to a place
where a different law prevails.”

The right of the testator to make a disposition of his real
property to the exclusion of one or more of his heirs is governed
by the law of the place where the land is situated ;°* while the
right to dispose of personal property by will to other persons, to
the exclusion of husband, or wife, or next of kin, is governed
by the law of the domicil of the testator or testatrix at the time
of death.”

§ 49. Laws governing construction and interpretation.—
The law of the testator’s domicil governs in the construction
and interpretation of the meaning and intention of the testator
as expressed in his will,°° unless such construction will contra-

49 Staigg v. Atkinson, 144 Mass.
564, 12 N. E. 354; Atkinson v. Staigg,
13.R. I. 725; Bolling v. Bolling, 88
Va. 524, 14 S. E. 67.

50 Apperson v. Bolton, 29 Ark. 418;
Jennings v. Jennings, 21 Ohio St. 56.

51 Lawrence’s Appeal, 49 Conn. 411;
Wilson v. Cox, 49 Miss. 538.

52 Harrall v. Wallis, 37 N. J. Ea.
458.

53 Rush v. Landers, 107 La. 549, 32
So. 95, 57 L. R. A. 353.

54 Apperson v. Bolton, 29 Ark. 418;
Hughes v. Hughes, 14 La. Ann. 85;
Wilson v. Cox, 49 Miss. 538.

55 Trimble v. Dzieduzyiki, 57 How.
Pr. (N. Y.) 208.

5¢ Harrison v. Nixon, 6 Pet. (U.
S.) 483, 9 L. ed. 201; Guerard v.
Guerard, 73 Ga. 506; Keith v. Eaton,
58 Kans. 732, 51 Pac. 271; Dannelli
v. Danelli, 4 Bush. (Ky.) 51; Wells’
Succession, 4 La. Ann. 522; Bedell
v. Clark, 171 Mich. 486, 137 N. W.
627; Ford v. Ford, 80 Mich. 42, 44
N. W. 1057; New York L. Ins. &c.
Co. v. Viele, 161 N. Y. 11, 55 N. E.
311, 76 Am. St. 238, 5 Prob. Rep.
Ann. 197; Lanius v. Fletcher, 100
Tex. 550, 101 S. W. 1076; Ford v.
Ford, 70 Wis. 19, 33 N. W. 188, 5
Am. St. 117; In re Fergusson’s Will,
L. R. (1902) 1 Ch. Div. 483, 71 L, J.
Ch. (N. S.) 360, 50 W. R. 312.
51 LAWS BY WHICH WILLS ARE GOVERNED § 49
vene the law of the state where the will is offered for probate,°’
or unless the testator manifestly had the law of some other juris-
diction in view.2

But the law of the testator’s domicil at the time of his death
governs with respect to the construction of the rights of the
parties under his will disposing of personalty, and the operative
effect of same,*® while the lex rei sitae governs in interpreting
the interest created by his devise of real estate.°° In some juris-
dictions, however, the question of interpretation of a will dis-
posing of personal property is governed by the law of the tes-

tator’s domicil at the time of making the will.™

57 Keith v. Eaton, 58 Kans. 732, 51
Pac. 271. ,

58 Harrison v. Nixon, 9 Pet.
(U. S.) 483, 9 L. ed. 201; Keith v.
Eaton, 58 Kans. 732, 51 Pac. 271;
Jacobs v. Whitney, 205 Mass. 477, 91
N. E. 1009, 18 Ann. Cas. 576; Ford
v. Ford, 80 Mich. 42, 44 N. W. 1057;
In re Reyle’s Estate, 5 Pa. Dist. 416,
18 Pa. Co. Ct. 336; Lanius v. Fletch-
er, 100 Tex. 550, 101 S. W. 1076; In
re Price, L. R. (1900) 1 Ch. Div. 442,
82 L. T. 79, 16 T. L. R. 189, 48 W. R.
373.

59 Watkins v. Eaton, 173 Fed. 133;
Turner vy. Fenner, 19 Ala. 355; Rock-
well v. Bradshaw, 67 Conn. 8, 34 Atl.
758; Robert’s Succession, 2 Rob.
(La.) 427; Gilman v. Gilman, 52
Maine 165, 83 Am. Dec. 502; Harding
yv. Schapiro, 120 Md. 541, 87 Atl. 951;
Jacobs v. Whitney, 205 Mass. 477,
91 N. E. 1009, 18 Ann. Cas. 576;
Sturdivant v. Neill, 27 Miss. 157;
Geerdts v. Riesenberg, 116 Mo. App.
308, 90 S. W. 1170; Pratt v. Douglas,
38 N. J. Eq. 516; In re New York L.
Ins. &c. Co., 139 N. Y. S. 695; Knox
v. Barker, 8 N. Dak. 272, 78 N. W.
352; Bradley v. Lowry, Speers Eq.
(S. Car.) 1, 39 Am. Dec. 142; App
v. App, 106 Va. 253, 55 S. E. 672, 12
Prob. Rep. Ann. 680; In re Fergus-
son’s Will, L. R. (1902) 1 Ch. Div.

483, 71 L. J. Ch. (N. S.) 360, 50 W.
R. 312; McConnell v. McConnell, 18
Ont. 36. ,

60 Handley v. Palmer, 103 Fed. 39;
Apperson v. Bolton, 29 Ark. 418;
Clarke’s Appeal, 70 Conn. 195, 39 Atl.
155, 3 Prob. Rep. Ann. 120; Me-
chanics’ &c. Bank v. Harrison, 68 Ga.
463; McCartney v. Osburn, 118 IIl.
403, 9 N. E. 210; Thompson v. Penn,
149 Ky. 158, 148 S. W. 33; Jones v.
Hunter, 6 Rob. (La.) 235; Jacobs v.
Whitney, 205 Mass. 477, 91 N. E.
1009, 18 Ann. Cas. 576; Washburn v.
Van Steenwyk, 32 Minn. 336, 20 N.
W. 324; L’ Hote v. Roca, 102 Miss.
121, 58 So. 655; Applegate v. Smith,
31 Mo. 166; Van Wickle v. Van
Wickle, 59 N. J. Eq. 317, 44 Atl. 877;
In re Mackay, 77 Misc. (N. Y.) 303,
136 N. Y. S. 821; Jennings v. Jen-
nings, 21 Ohio St. 56; In re Kohne’s
Estate, 1 Pars. Eq. Cas. (Pa.) 399;
Atkinson v. Staigg, 13 R. IL 725;
Bradley v. Lowry, 1 Speers Eg. (S.
Car.) 1, 39 Am. Dec. 142; American
Bible Soc. v. Pendleton, 7 W. Va.
79; Yates v. Thomson, 3 Cl. & F.
544, 6 Eng. Reprint 1541; McConnell
v. McConnell, 18 Ont. 36.

61 Staigg v. Atkinson, 144 Mass.
564, 12 N. E. 354; Atkinson v. Staigg,
13 R. I. 725.
§ 50 WILLS D2
§ 50. Effect of legislative enactment subsequent to execu-
tion of will—As a general rule the validity of the execution
of a will is controlled by the statute in force at the time of exe-
cution. And a statute enacted subsequent to the execution and
prior to the death of the testator, changing the rules respecting
the form of the instrument, the capacity of the testator and the
like, has no retrospective effect. Thus where a testator, lack-
ing capacity to make a will at the time he executed it, such will
was held invalid, although a statute was subsequently enacted
giving capacity to persons of the testator’s class. But if the
legislative intent is manifest that the act shall govern wills al-
ready: executed, it will have a retrospective effect.** However,
if this intention is not manifest the act will apply only to wills
executed after its passage, and the statute in force at the time of
the death of the testator controls their validity.”
- The validity of a gift should be determined at the time of
the testator’s death. If valid then, though invalid when made,

62TLane’s Appeal, 57 Conn. 182, 17
Atl. 926, 14 Am. St. 94,4 L. R. A.
45; Coleman v. O’Leary, 114 Ky. 388,
24 Ky. L. 1248, 70 S. W. 1068; Ameri-
can Baptist Missionary Union v.
Peck, 10 Mich. 341; Mundy v. Mundy,
15 N. J. Eq. 290; Salter v. Bryan, 26
N. Car. 494; Packer v. Packer, 179
Pa. St. 580, 36 Atl. 344, 57 Am. St.
615, 2 Prob. Rep. Ann. 471; Taylor
v. Mitchell, 57 Pa. St. 209; Mullen
v. McKelvy, 5 Watts (Pa.) 399;
Audenried’s Estate, 4 Pa. Co. Ct. 128;
Camp v. Stark, 10 Phila. (Pa.) 528,
30 Leg. Int. 21 (Pa.); Giddings v.
Turgeon, 58 Vt. 106, 4 Atl. 711; Bar-
ker v. Hinton, 62 W. Va. 639,59 S.
E. 614, 13 Ann. Cas. 1150n.

63 Gregory v. Oates, 92 Ky. 532, 18
S. W. 231, 13 Ky. L. 761; Burkett v.
Whittemore, 36 S. Car. 428, 15 S. E.
616; Mitchell v. Kimbrough, 98 Tenn.
535, 41 S. W. 993.

64 Hoffman v. Hoffman, 26 Ala.
535; In re Learned’s Estate, 70 Cal.

140, 11 Pac. 587; Colonna v. Alton, 23
App. Cas. (D. C.) 296; Hargroves v.
Redd, 43 Ga. 142; Sutton v. Chenault,
18 Ga. 1; Crawford v. Thomas, 21
Ky. L. 1100, 54 S. W. 197; Perkins
v. George, 45 N. H. 453; Wakefield
v. Phelps, 37 N..H. 295; Loveren v.
Lamphrey, 22 N. H. 434; Mundy v.
Mundy, 15 N. J. Eq. 290; Jones v.
Robinson, 17 Ohio St. 171; In re
Clayson’s Will, 24 Ore. 542, 34 Pac.
358; Long v. Zook, 13 Pa. St. 400;
Langley v. Langley, 18 R. I. 618, 30
Atl. 465; In re Elcock’s Will, 4 Mc-
Cord (S. Car.) 39, 17 Am. Dec. 793;
Houston v. Houston, 3 McCord (S.
Car.) 491, 15 Am. Dec. 647; Black-
man v. Gordon, 2 Rich. Eq. (S. Car.)
43, 44 Am. Dec. 241; Henderson v.
Ryan, 27 Tex. 670; Hamilton v.
Flinn, 21 Tex. 713; Strand v. Stewart,
51 Wash. 685, 99 Pac. 1027; In re
Bridger, 1 Ch. 297, 1 Ch. 44.

65 Powell v. Powell, 30 Ala. 697;
Hoffman v. Hoffman, 26 Ala. 535;
53 LAWS BY WHICH WILLS ARE GOVERNED § 51
the gift is good.** Conversely, if invalid at the time of death,
though valid when made, the gift is void.*”

Some authorities hold that statutes enacted subsequent to the
executicn of wills, and which increase the necessary formalities,
-» not have the effect to impair their validity, and when they
lessen the necessary formalities they should be construed so as
to give validity to wills defectively executed according to the law

in force at the time of their execution.

§ 51. Effect of legislative enactment after testator’s death.
—We have seen that a will is ambulatory until the death of the
testator, and until that event occurs the testamentary disposition
is subject to the will of the testator, and likewise to the will of
the state as expressed in its public statutes. The will speaks as
of the date of the testator’s death, and must conform to the laws
in force at that time. Until the death of the testator, therefore,
the power of the legislature over wills, the manner of their exe-
cution, and the mode of carrying out their provisions is absolute
and supreme, but upon the death of the testator the interest pass-
ing under the will becomes vested if the will is valid, and the

legislature may not interfere with or divest the estate.°°

Lane’s Appeal, 57 Conn. 182, 17 Atl.
926, 4 L. R. A. 45, 14 Am. St. 94;
Phillips v. Phillips (Del. Ch.), 91 Atl.
452; Gregory v. Oates, 92 Ky. 532,
18 S. W. 231, 13 Ky. L. 761; Hudson
v. Hudson, 160 Ky. 432, 169 S. W.
891; American Baptist Missionary
Union v. Peck, 10 Mich. 341; Dicker-
son v. Dickerson, 211 Mo. 483, 110 S.
W. 700; Strand v. Stewart, 51 Wash.
685, 99 Pac. 1027; Mundy v. Mundy,
15 N. J. Eq. 290; Salter v. Bryan, 26
N. Car. 494; In re Clayson’s Will, 24
Ore. 542, 34 Pac. 358; Packer v.
Packer, 179 Pa. St. 580, 36 Atl. 344,
57 Am. St. 615; Camp v. Stark, 81
Pa, St. 235; Kurtz v. Saylor, 20 Pa.
St. 205; Shinkle v. Crock, 17 Pa. St.
159; Barr v. Graybill, 13 Pa. St. 396;
Greenough v. Greenough, 11 Pa. St.
489, 51 Am. Dec. 567; Murry v.

Thus

Murry, 6 Watts (Pa.) 353; Mullen v.
McKelvy, 5 Watts (Pa.) 399; Gid-
dings v. Turgeon, 58 Vt. 106, 4 Atl.
711; Barker v. Hinton, 62 W. Va.
639, 59 S. E. 614, 1) Ann. Cas. 1150n.

66 Hamilton v. «linn, 21 Tex. 713;
In re Kopmeier s Will, 113 Wis. 233,
89 N. W. 134.

67 Blackbourn v. Tucker, 72 Miss.
735, 17 So. 737; Wakefield v. Phelps,
37 N. H. 295; De Peyster v. Clendin-
ing, 8 Paige (N. Y.) 295.

68 Powell v. Powell, 30 Ala. 697;
Hoffman v. Hoffman, 26 Ala, 535;
Jauncey v. Thorne, 2 Barb. Ch. (N.
Y.) 40, 145 Am. Dec. 424; Ruddon v.
McDonald, 1 Bradf. Surr. (N. Y.)
352; Price v.. Brown, 1 Brad. Surr.
(N. Y.) 291; Lawrence v. Hebbard,
1 Bradf. Surr. (N. Y.) 252.

69 White v. Keller, 68 Fed. 796;
§ 51 WILLS 54

where, at the death of the testator, a bequest to a cemetery was
void under the rule against perpetuities, and the property be-
queathed vested in the testator’s next of kin, the subsequent en-
actment of a statute before the day for the payment of the
legacy, was held not to divest the rights of the next of kin in
favor of the cemetery company.”

On the other hand if the will was invalid at the time of the
testator’s death, no subsequent statute can make it valid.* The
legislature may, however, after the testator’s death, change the
law respecting the settlement of estates so as to include the
estate of the testator.7* The rights of persons not beneficiaries
under the will, nor heirs of the testator, may be affected by a
statute enacted subsequent to the testator’s death.”

Deake’s Appeal, 80 Maine 50, 12 Atl. 71 Remington v. Bank, 76 Md. 546,
790; Remington v. Metro. Sav. Bank, 25 Atl. 666; Hartson v. Elden, 50 N.
76 Md. 546, 25 Atl. 666; Richter v. J. Eq. 522, 26 Atl. 561; Chwatal v.
Bohnsack, 144 Mo. 516, 46 S. W. 748; Schreiner, 148 N. Y. 683, 43 N. E. 166,
People v. Powers, 147 N. Y. 104, 41 77 Hun 611, 29 N. Y. S. 1142, 62 N.
N. E. 432, 35 L. R. A. 502; Strand v. Y. St. 865.
Stewart, 51 Wash. 685, 99 Pac. 1027; 72 Bredenburg v. Bardin, 36 S. Car.
Lynch v. Paraguay, L. R. 2 P. & D. 197, 15 S. E. 372; Strand v. Stewart,
268. 51 Wash. 685, 99 Pac. 1027.

70 Hartson v. Elden, 50 N. J. Eq. 73 Trapnell v. Conklyn, 37 W. Va.
§22, 26 Atl. 561. See also White v. 242, 16 S. E. 570, 38 Am. St. 30.
Howard, 46 N. Y. 144.
CHAPTER IV

PROPERTY SUBJECT TO TESTAMENTARY DISPOSITION

SECTION SECTION :
55. What property may pass in gen- 62. Homestead and other exemptions.
eral. 63. Dower, curtesy and statutory al-
56. After-acquired personal property. lowances.
57. After-acquired real estate. 64. Future or contingent estates. __
58. Property transformed. 65. Community property, and estates
59. Interests under trusts and pow- by entireties.
ers. 66. Rights of entry.
60. Interests under contract to con- 67. Interests not surviving, and prop-
vey or purchase. erty transferable to others at
61. Proceeds of insurance. testator’s death.

§ 55. What property may pass in general—Every person
of sufficient capacity may lawfully devise, bequeath, or dispose
of, by will executed with the formalities prescribed by law, all
real estate and all personal estate which he is entitled to, either
in law or in equity, at the time of his death, and which, if not
so devised, bequeathed, or disposed of, would devolve upon his
heirs or personal representatives.‘ He may devise or bequeath
to whomsoever he will that part of his property not reserved by
law to his forced heirs.” This includes all corporeal and incor-
poreal rights, and future and contingent interests to which he
was legally or beneficially entitled at the time of his death.*

He can not, however, make testamentary disposition of prop-
erty which does not belong to him at the time of his death,**
nor, as we shall see in a subsequent section,* can he devise prop-

1Hart v. Young, 3 J. J. Marsh. 206, 32 Sup. Ct. 95; Collins v. Smith,
(Ky.) 408; Smith v. Sweringen, 26 105 Ga. 525, 31 S. E. 449; Jones v.
Mo. 551; Ingilby v. Amcotts, 21 Beav. Huntley, 156 N. Car. 410, 72 S. E.
585. 353. :

2 Succession of Serres, 133 La. 929, 8a Young v. Snow, 167 Mass. 287,
63 So. 409. 45 N. E. 686.

3 Mayer v. American Security & 4 See post § 64.
Trust Co., 222 U. S. 295, 56 L. ed.

55
§ 56 WILLS 56
erty in which he has only a life estate, or in which his interest
is only that of a joint tenant. Thus it is held that a partner
can not dispose of by will his undivided interest in any specified
article belonging to the firm, and this is because each partner
has a joint interest in the whole but not a separate interest in any
particular part of the partnership property.’ A mere naked pos-
sibility or reverter descends to one’s heirs and can not be de-
vised. A person who has only color of title can not pass any
estate by devise.? A person may, however, pass title by will to
the property of another in pursuance of a power giving him
express authority to make such disposition.”

The right of dower being an estate which vests in the wife
immediately on the death of the husband, over which he can
exercise no control, either by will or otherwise, it follows that
no provision which he can make in his will can, of itself, defeat
the claim of dower.**

§ 56. After-acquired personal property.—Unless other-
wise provided by statute, personal property acquired by the tes-
tator after the execution of his will, passes by the will if such
was the testator’s intention manifested by the terms of the will
or inferred from the language used.*? A crop to be grown after

5Dame v. Dame, 20 N. H. 28;
Beetson v. Stoops, 91 App. Div. (N.
Y.) 185, 86 N. Y. S. 1100.

6 Wilkins v. Young, 144 Ind. 1, 41
N. E. 68, 590, 55 Am. St. 162.

7 Spencer v. Spencer, 163 N. Car.
83, 79 S. E. 291.

8 Trustees of Presbyterian Church
v. Venable, 159 Ill. 215, 42 Mi E.
836, 50 Am. St. 159,

9 Smith v. Bryan, 34 N. Car. it.

10Krause v. Klucken, -135 Mass.
482.

11 Otts v. Otts, 80 S. Car. 16, 61 S.
E. 109; Summerel v. Summerel, 34 S.
Car. 85, 12 S. E. 932.

12 Pierce v. Root, 86 Conn. 90, 84
Atl. 295; Campbell v. Hinton, 150 Ky.

546, 150 S. W. 676; Curling v. Curl-
ing, 8 Dana (Ky.) 38, 33 Am. Dec.
475; Laughlin v. Norcross, 97 Maine
33, 53 Atl. 834, 8 Prob. Rep. Ann.
302; Wait v. Belding, 24 Pick.
(Mass.) 129; Loveren v. Lamprey, 22
N. H. 434; Lanning v. Cole, 6 N. J.
Eq. 102; McNaughton v. McNaugh-
ton, 34 N. Y. 201; Alexander v. Pax-
son, 47 Pa. St. 12; Hazard v. Gushee,
35 R. I. 438, 87 Atl. 201; Dennis v.
Dennis, 5 Rich. (S. Car.) 468;
Nichols v. Allen, 87 Tenn. 131, 9 S.
W. 430; Turpin v. Turpin, Wythe
(Va.) 22 (2d ed. 137); James v.
Dean, 11 Ves. Jr. 383, 32 Eng. Re-
print 1135, 40 Cyc, of Law & Pro., p.
1044.
57 PROPERTY SUBJECT TO TESTAMENTARY DISPOSITION § 57

the execution of a will may pass thereby,** and railroad stock
that is only in part paid for at the time the will is executed will
pass by bequest as if fully paid.**

It has also been held that a fund arising under a certain act
of congress and bequeathed to the residuary legatee named in
the will of the testator though not in existence at the date of
such instrument passed to the legatee and not to the heirs at
law of the testator.**

§ 57. After-acquired real estate—According to the rule
of the common law, after-acquired real estate did not pass by
will; and this rule was enforced so strictly that a will was
held to be inoperative upon real estate of which the testator was
the owner at the time of the making of the will, and afterward
sold, repurchased, and died seized.** The reason given for the
rule was that a devise of land was regarded in the same light
as a conveyance, and as a conveyance at common law would not
vest for want of seizin, it was therefore held to be operative only
on such real estate as the testator might have at the time of
making the will.*” But by statute in many states the rule now is
that any estate, right, or interest in land acquired by the testator
after the making of his will will pass under any general words
in the will that are sufficient to embrace such estate, right, or
interest.** Such statutes have usually been held to have no appli-
cation to wills made before their enactment, even if enacted prior
to the testator’s death;'® but there are cases which hold that the

18 Rock v. Zimmerman, 25 S. Dak.
237, 126 N. W. 265.

Ark. 61, 9 S. W. 846; In re O’Gor-
man’s Estate, 161 Cal. 654, 120 Pac.

14 Emery v. Wason, 107 Mass. 507.

15Camp v. Vaughan, 119 Ga. 131,
46 S. E. 79.

16 In re Hopper’s Estate, 66 Cal. 80,
4 Pac. 984.

17 Hardenbergh v. Ray, 151 U. S.
112, 38 L. ed. 93, 14 Sup. Ct. 305;
Brewster v. McCall, 15 Conn. 274;
Duffel v. Burton, 4 Har. (Del.) 290;
Gibbon v. Gibbon, 40 Ga. 562.

18 Graham v. De Yampert, 106 Ala.
279, 17 So. 355; Patty v. Goolsby, 51

33; Clayton v. Hallett, 30 Colo. 231,
70 Pac. 429, 59 L. R. A. 407, 97 Am.
St. 117; Dickerson’s Appeal, 55 Conn.
223, 10 Atl. 194, 15 Atl. 99; Johnson
v. White, 76 Kans. 159, 90 Pac. 810;
Mueller v. Buenger, 184 Mo. 458, 83
S. W. 458, 67 L. R. A. 648, 105 Am.
St. 541; Cardwell v. Rogers, 76 Tex.
37, 12 S. W. 1006.

19 Morgan v. Huggins, 42 Fed. 869,
9 L. R. A. 540; Brewster v. McCall,
15 Conn. 274; Gibbon v. Gibbon, 40
§ 58 WILLS 58
statutes apply to wills made before their enactment where the
testator dies after they go into effect.” But under these statutes
a devise clearly intended to pass real estate owned at the time
of the execution of the will does not pass after-acquired real
estate.” After-acquired real estate will not pass where the tes-
tator expresses a contrary intent in his will.”

There are a few statutes, however, which provide that the
testator may pass after-acquired property only where an inten-
tion to do so clearly appears in the will. Under these statutes
it has been held that a residuary clause does not have the effect

to pass after-acquired realty *

§ 58. Property transformed.—By the weight of authority
it is held that where property devised or bequeathed is subse-
quently changed in form, such change does not prevent the prop-
erty from passing to the devisee or legatee in its chariged con-
dition.** Thus where a devise was made of lands which were
subsequently transformed into town lots it was held that the lots
passed by the devise.** In a few jurisdictions, however, it is
held that a change in the form of the property made subsequent
to the execution of the will will prevent the passing of the prop-
erty in its changed condition.”

Ga. 562; Johns v. Doe, 33 Md. 515;
Parker v. Bogardus, 5 N. Y. 309;
Battle v. Speight, 31 N. Car. 288;
Gable v. Daub, 40 Pa. St. 217;
Delacherois v. Delacherois, 11 H. L.
Cas. 62, 10 Jur. (N. S.) 886, 10 L.
T. (N. S.) 884, 4 N. R. 501, 13 W. R.
24, 11 Eng. Reprint 1254. But see
Loveren v. Lamprey, 22 N. H. 434.

20 Wilson v. Wilson, 6 Md. 487;
Pray v. Waterston, 12 Metc. (Mass.)
262. But see Carroll v. Carroll, 16
How. (U. S.) 275, 14 L. ed. 936,

21 Wheeler v. Brewster, 68 Conn.
177.

22 Bourke v. Boone, 94 Md. 472, 51
Atl. 396,

23 Bedell v. Fradenburgh, 65 Minn.
361, 68 N. W. 41; Webb v. Archibold,
128 Mo. 299, ‘28 S. W. 80; In re
Pierce, 20 R. I. 380, 39 Atl. 430.

24 Marks’ Succession, 35 La. Ann.
1054; Van Wagenen v. Brown, 26 N.
J. L. 196; Baldwin v. Baldwin, 7 N.
J. Eq. 211; McNaughton v. Mc-
Naughton, 41 Barb. (N. Y.) 50;
Havens v. Havens, 1 Sandf. Ch. (N.
Y.) 324.

25 Decker v. Decker, 121 Ill. 341, 12
N. E. 750.

26 Ross v. Carpenter, 9 -B. Mon.
(Ky.) 367, 50 Am. Dec. 513; Brig-
ham v. Winchester, 1 Metc. (Mass.)
390.
59 PROPERTY SUBJECT TO TESTAMENTARY DISPOSITION § 60
§ 59. Interests under trusts and powers.—The interest of
a beneficiary under a trust may be disposed of by will,®” if the
terms of the will are sufficient to pass such interest,?* unless the
nature of such interest is such that it can not be alienated.” A
trust being extinguished by the death of the trustee, an interest
coupled with the trust can not be disposed of by will, as it must
cease with the trust.*°

Trust property, which, by the terms of its creation, ceases at
the death of the equitable owner in fee thereof, may be devised
free of the trust by such owner.** Also a resulting trust contin-
gent upon the failure of issue of certain designated persons,
may be devised.*?

§ 60. Interests under contract to convey or purchase.—
Where the real estate devised is contracted to be conveyed and
the purchase-money or any part thereof remains unpaid at the
time of the testator’s death it goes to the personal representative
of the deceased and not to the devisee, because under the doc-
trine of equitable conversion the purchaser is regarded as a trus-
tee of the purchase-money for the vendor,** and the legal title
is held only as a security for the payment of the debt.** It is
provided by statute in many states that a contract or bond for
the conveyance of real estate previously devised shall not be
deemed a revocation of the devise unless such intention shall
clearly appear, but such property shall pass to the devisee sub-
ject to the right of the purchaser to enforce specific performance
of the contract of sale to the same extent as it would be sub-

27Hemingway v. Hemingway, 22
Conn. 462; Schmidt v. Schmidt, 7
Rich. Eq. (S. Car.) 201.

28 Boothe v. Cheek, 253 Mo. 119,
161 S. W. 791.

29 Wilkinson v. Wright, 6 B. Mon.
(Ky.) 576; In re Steinmetz’s Estate,
168 Pa. St. 175, 31 Atl. 1092.

30 Land v. Otley, 4 Rand. (Va.)
213.

31 Laughlin v. Page, 108 Maine 307,

80 Atl. 753; Hayward v. Rowe, 190
Mass. 1, 76 N. E. 286.

82 Carney v. Kain, 40 W. Va. 758,
23 S. E. 650.

33 Donohoo v. Lea, 1 Swan (Tenn.)
119, 15 Am. Dec. 725; Gale v. Gale,
21 Beav. 349.

34 Williams v. Haddock, 145 N. Y.
145, 39 N. E. 825; Vender v. Lucken-
bach, 162 Pa. St. 18, 29 Atl. 295;
Hyde v. Heller, 10 Wash. 586, 39
Pac. 249,
§ 61 WILLS 60
ject to as against the heirs; and all purchase-money unpaid at
the time of the testator’s death goes to the devisee.*

At law a contract for the purchase of land gives the vendee
no interest in the land; but the rule is otherwise in equity, which
considers the vendor, as to the land, a trustee for the purchaser,
and the vendee, as to the money, a trustee for the seller. In
equity the land belongs to the vendee and may be devised by
him,** unless he holds merely as trustee for another.** But where
a testator, subsequent to the execution of his will devising real
estate, executes a contract for the sale of such devised real estate,
the devisee under the will is not entitled to the proceeds received
by the testator or agreed to be paid him for the real estate.**
Where a testator has acquired an equitable interest by a contract
to purchase land after he has made his will, such interest will
not pass by the will.°

It has been held that when the owner of land gives a bond
for title prior to the execution of his will devising the same,
the devisee takes the testator’s interest, and is entitled to the
unpaid purchase-money.*°

§ 61. Proceeds of insurance.—The power of a testator to
make disposition by will of the proceeds of an insurance policy
on his life is to be determined from the nature of the insurance
and the terms and conditions of the policy. If the policy pro-
vides that upon the death of the insured the insurer will pay
a certain sum to a certain beneficiary named therein, and the
insured has no power to change the beneficiary, he can not pass
the proceeds by will.** But the testator may make disposition by

35 See statutes of several states. 38 Mitchell v. Danforth, 12 Cush.

36 Brown v. Frantum, 6 La. 39;
Brooks v. Whitney, 11 Metc. (Mass.)
413; Wing v. McDowell, Walk. Ch.
(Mich.) 175; Bowen v. Lansing, 129
Mich. 117, 88 N. W. 384, 57 L. R. A.
643; Dodge v. Gallatin, 130 N. Y.
117, 20 N. E. 107; Ex parte Champ-
ion, 45 N. Car. 246; Smith v. Jones,
4 Ohio 115.

37 Taylor v. James, 4 Desaus. Eq.
(S. Car.) 1.

(Mass.) 330; Sharp v. McPherson,
10 Ohio C. C. 181,.6 Ohio C. D. 634.

39 Lushington v. Sewell, 1 Russ. &
M. 169; Langford v. Pitt, 2 P. Wms.
629,

40 Wright v. Minshall, 72 Ill. 584.

41 Block v. Valley Mut. Ins. Assn.,
52 Ark. 201, 12 S. W. 702; De Silva v.
Supreme Council, 109 Cal. 373, 42
Pac. 32; Masonic Mut. Ben. . Assn.
v. Severson, 71 Conn. 719, 43 Atl. 192;
61 PROPERTY SUBJECT TO TESTAMENTARY DISPOSITION § 62
will of the proceeds of a policy on his own life payable to him-
self, although the policy was issued subsequent to the making
of the will.* The proceeds of the policy will pass under a
residuary clause of the will if it is made payable to the testator’s
“estate’’** or to his “legal representatives.”*° The insured may
dispose of the proceeds of an insurance policy on his life made
payable to his “executors, administrators and assigns.’”’**

If the proceeds of an insurance policy are bequeathed, and
there is no intention on the part of the testator to give a sum of
money, either equivalent to the proceeds of such insurance, or
to be paid out of such proceeds, the legacy will be specific, and
if the proceeds are not collectible or the policy has been sur-
rendered during the testator’s lifetime the gift fails.*”

§ 62. Homestead and other exemptions.—In several states
by statutory or constitutional provisions the house and land,
which constitute the homestead is set apart for the use of the
family, and is not subject to be disposed of by the will of the
owner, but upon his death his widow and minor children have
a right to continue in its occupation.** This does not prevent a

Martin v. Stubbings, 126 ‘Ill. 387, 18

N. E. 657, 9 Am. St. 620; Holland v.
Taylor, 111 Ind. 121, 12 N. E. 116;
Hainer v. Iowa Legion of Honor, 78
Towa 245, 43 N. W. 185; Weisert v.
Muehl, 81 Ky. 336, 5 Ky. L. 285;
Golder v. Chandler, 87 Maine 63, 32
Atl. 784; Pingrey v. National L. Ins.
Co., 144 Mass. 374, 11 N. E. 562;
Masonic Ben. Assn. v. Bunch, 109 Mo.
560, 19 S. W. 25; Mellows v. Mel-
lows, 61 N. H. 137; Charch v. Charch,
57 Ohio St. 561, 49 N. E. 408; Ma-
sonic Mut. Assn. v. Jones, 154 Pa. St.
107, 26 Atl. 255; Schardt v. Schardt,
100 Tenn. 276, 45 S. W. 340.

42 Fox v. Senter, 83 Maine 295, 22
Atl. 173; Catholic Knights of Amer-
ica v. Kuhn, 91 Tenn. 214, 18 S. W.
385; Fletcher v. Williams (Tex. Civ.
App.), 66 S. W. 860.

43 Laughlin v. Norcross, 97 Maine
33, 53 Atl. 834.

44Stoelker v. Thornton, 88 Ala.
241, 6 So. 680,6 L. R. A. 140..

45 Walker v. Peters, 139 Mo. App.
681, 124 S. W. 35; Schumacher v.
Schumacher, 32 Tex. Civ. App. 497,
75 S. W. 50.

46 Hartwig v. Schiefer, 147 Ind. 64,
46 N. E. 75, 42 N. E. 471; Fox v.
Senter, 83 Maine 295, 22 Atl. 173.

47 Kramer v. Lyle, 197 Fed. 618;
Nusly v. Curtis, 36 Colo. 464, 85 Pac.
846,7 L. R. A. (N. S.) 592, 118 Am.
St. 113, 10 Ann. Cas. 1134; Keller v.
Gaylor, 40 Conn. 348.

48 Stokes v. Pillow, 64 Ark. 1, 40
S. W. 580; In re Matheny’s Estate,
121 Cal. 267, 53 Pac. 800; Griffith v.
Griffith, 59 Fla. 512, 52 So. 609, 138
Am. St. 138, 21 Ann. Cas. 246; Stunz
§ 62 WILLS
husband from devising the homestead in fee to his wife.*°

The power of the owner of such property to dispose of it by
-will depends in most instances on the statutes of the particular
state creating the homestead, but in most cases it is held to be a
’ right created by law and can not be altered or defeated by a
testamentary provision.*® In Florida, however, a certain amount
of homestead property is exempted from forced sale; but the
testator may dispose of it by will to persons other than his
widow.** But if he leave children surviving him, such disposi-
tion will be invalid.°? In most states either spouse may assent
to a will by the deceased spouse disposing of the homestead to a
third person.* It has been held that if no homestead has been
set apart in the lifetime of the testator, his widow can not select
one out of property devised by him, so as to destroy such de-
vise.**

Statutes usually provide for an allowance of household goods,
money, or provisions for the immediate support of the widow
and family, and these are beyond the power of the testator to
affect by his will.°° If the widow accepts a devise of property
made by her husband in lieu of her homestead rights she can not
claim a homestead in his property.*®

v. Stunz, 131 Ill. 210, 23 N. E. 407;
Larson v. Reynolds, 13 Iowa 579, 81

58 Eckstein v. Radl, 72 Minn. 95, 75
N. W. 112.

Am. Dec. 444; Hazelett v. Farthing,
94 Ky. 421, 22 S. W. 646, 15 Ky. L.
197, 42 Am. St. 365; Pratt v. Pratt,
161 Mass. 276, 37 N. E. 435; Schorr v.
Etling, 124 Mo. 42, 27 S. W. 395;
Davis v. Milady, 92 S. Car. 135, 75
S. E. 363, Ann. Cas. 1914 B, 267.

49 Martindale v. Smith, 31 Kans.
270, 1 Pac. 569.

50 Richter v. Richter, 180 Ala. 218,
60 So. 880. ,

51 Hinson v. Booth, 39 Fla. 333, 22
So. 687.

52 Walker v. Redding, 40 Fla. 124,
23 So. 565.

54In re Eyre’s Estate, 7 Wash. 291,
34 Pac. 831,

55 Sulzberger v. Sulzberger, 50 Cal.
385; Edenfield v. Edenfield, 131 Ga.
571, 62 S. E. 980; Cross v. Benson, 68
Kans. 495, 75 Pac. 558, 64 L. R. A.
560; Bryant v. McCune, 49 Mo. 546;
Woolley v. Sullivan, 92 Tex. 28, 45
S. W. 377, 46 S. W. 629; Baker v.
Baker, 57 Wis. 382, 15 N. W. 425.

56 Warren v. Warren, 148 Ill. 641,
36 N. E. 611; In re Blackmer’s
Estate, 66 Vt. 146, 28 Atl. 419.
63 PROPERTY SUBJECT TO TESTAMENTARY DISPOSITION § 63
§ 63. Dower, curtesy, and statutory allowances.—Almost
universally, the statutes of the different states make the surviving
husband or wife an heir of the deceased spouse, and entitle such
to take in this capacity some part or portion of the real estate
of the one dying intestate. Also statutes of the different states
relating to wills operate to make the surviving spouse the heir
of the other dying testate.*’ By statute in many of the states the
surviving spouse is given an interest in both the real and per-
sonal estate of which he can not be deprived by will.°° Thus it
has been held that a wife, who had been empowered to trade as
a feme sole, could not dispose of her property by last will and
testament to the exclusion of her husband, where there was a
statute giving him an interest in her estate regardless of any will
she might make.°® In the absence of such statutory provision,
either spouse may by will exclude the other from sharing any
part of the estate, and may make testamentary disposition thereof

to other persons.*°

In some states the right of testamentary disposition of a mar-
ried person is limited to one-half of his or her property.** Under

57 See statutes of the several states.

58 See Digest of Statutes, ch. 28.
See also Gaster v. Gaster, 92 Nebr.
6, 137 N. W. 900; Hays v. Seadey,
69 N. H. 308, 46 Atl. 189.

59 Cunningham v. Cunningham, 140
Ky. 193, 130 S. W. 1075; Smoot v.
Heyser, 113 Ky. 81, 67 S. W. 21, 23
Ky. L. 2401.

60 Mackall v. Mackall, 135 U. S.
171, 34 L. ed. 84, 10 Sup. Ct. 705;
Henry v. Hall, 106 Ala. 84, 17 So.
187, 54 Am. St. 22; Knox v. Knox,
95 Ala. 495, 11 So. 125, 36 Am. St.
235; In re Kaufman’s Estate, 117
Cal. 288, 49 Pac. 192, 59 Am. St. 179;
In re Wilson’s Estate, 117 Cal. 262,
280, 49 Pac. 172, 711; Taylor v. Cox,
153 Ill. 220, 38 N. E. 656; McCommon
v. McCommon, 151 Ill. 428, 38 N. E.
145; Manatt v. Scott, 106 Iowa 203,
76 N. W. 717, 68 Am. St. 293; Ben-

nett v. Hibbert, 88 Iowa 154, 55 N.
W. 93; Barlow v. Waters, 16 Ky. L.
426, 28 S. W. 785; In re Merriman,
108 Mich. 454, 66 N. W. 372; In re
Hess’ Will, 48 Minn. 504, 51 N. W.
614, 31 Am. St. 665; Farmer v.
Farmer, 129 Mo. 530, 31 S. W. 926;
McFadin v. Catron, 120 Mo. 252, 25
S. W. 506; Maddox v. Maddox, 114
Mo. 35, 21 S. W. 499, 35 Am. St. 734;
Couch v. Gentry, 113 Mo. 248, 20 S.
W. 890; Smith v. Smith, 48 N. I.
Eq. 566, 25 Atl. 11; Boylan v. Meeker,
15 N. J. Eq. 310; Hubbard v. Hub-
bard, 7 Ore. 42; Nicholas v. Kershner,
20 W. Va. 251.

61In re Spreckels’ Estate, 162 Cal.
559, 123 Pac. 371; Williams v. Camp-
bell, 85 Kans. 631, 118 Pac. 1074;
Noecker v. Noecker, 66 Kans. 347, 71
Pac. 815; Comstock v. Adams, 23
Kans. 513, 33 Am. Rep. 191.
§ 64 WILLS 64
such statute a husband has no power to make testamentary dis-
position of his property so as to deprive his wife of all interest
therein.** However, in states where a husband’s testamentary
power is limited to a certain portion of his estate, he may make
a disposition by will of his entire estate by and with the con-

sent of his wife.

°§ 64. Future or contingent estates.—The doctrine is well
settled, that contingent remainders, where the contingency de-
pends upon the event, and not upon the person, are subject to
testamentary disposition.** It is equally well settled that a con-
tingent remainderman has no title to pass to his representatives,
therefore none to devise or bequeath, where the contingency is
such that his own existence at some future time is to determine
whether any interest is to devolve upon him.*

Executory devises, being in the nature of contingent remain-
‘ders, are likewise devisable.*

If a vested remainder is an estate which survives the testator,
it may be devised.** The owner of a reversion may make testa-
mentary disposition thereof.

§ 65. Community property, and estates by entireties.—
In some jurisdictions property acquired after marriage becomes
community property between husband and wife, and neither

62 Gaster v. Gaster, 92 Nebr. 6, 137
N. W. 900.

63In re Stevens’s Estate, 163 Iowa
364, 144 N. W. 644; Williams v.
Campbell, 85 Kans. 631, 118 Pac.
1074; Hanson v. Hanson, 81 Kans.
305, 105 Pac. 444.

64 Collins v. Smith, 105 Ga. 525, 31
S. E. 449; Fisher v. Wagner, 109 Md.
243, 71 Atl. 999; Heard v. Reed, 169
Mass. 216, 47 N. E. 778; Havens v.
Seashore Land Co., 47 N. J. Eq. 365,
20 Atl. 497; Loring v. Arnold, 15
R. I. 428, 8 Atl. 335; Dickson v.
Dickson, 23 S. Car. 216.

65 Strode v. McCormick, 158 Il.
142, 41 N. E. 1091; Teets v. Weise,
47 N. J. L. 154; Paget v. Melcher,

156 N. Y. 399, 51 N. E. 24; Brown
v. Williams, 5 R. I. 309.

66 Kean v. Hoffecker, 2 Harr.
(Del.) 103, 29 Am. Dec. 336; Collins
v. Smith, 105 Ga. 525, 31 S. E. 449;
Wortman v. Robinson, 44 Hun (N.
Y.) 357 (affd. 113 N. Y. 628, 20 N. E.
877); Lewis v. Smith, 23 N. Car.
145; Thompson v. Hoop, 6 Ohio St.
480; McDonald v. McMullen, 2 Mill
(S. Car.) 91.

6? Harvard College v. Balch, 171 Ill.
275, 49 N. E. 543.

68 Alexander v. De Kermel, 81 Ky.
345, 5 Ky. L. 382; In re Tompkin’s
Estate, 154 N. Y. 634, 49 N. E. 135;
Carney v. Kain, 40 W. Va. 758, 23
S. E. 650.
65 PROPERTY SUBJECT TO TESTAMENTARY DISPOSITION § 66

spouse can by will deprive the other of his or her interest therein.”
And a general devise of all the property of the testator will pass
only his interest in the community property.7° But where the
will manifests an intention to devise the whole community prop-
erty, the surviving spouse can be put to an election to take
under the will, or to take under the law. Under a statute
providing that one-half of community property may be dis-
posed of by will, it has been held that an insured’s community
interest in the proceeds of an insurance policy will pass under a
general or residuary bequest of his property.”

Property held by husband and wife as tenants by the entire-
ties can not be disposed of by will by either spouse, but upon
the death of one spouse the survivor takes the whole.”*

Likewise where a statute gives to the surviving husband or
wife half of the real and personal property of the deceased
spouse, one spouse can not by will deprive the other of this
interest,”* unless such other consents thereto in writing in ac-
cordance with the statute.”* It has been held that an antenup-
tial contract constitutes a sufficient written consent for this pur-
pose.”®

§ 66. Rights of entry.—It is generally held that where an
owner of land has been disseized thereof he may devise all the
interest that he possesses therein."7 And under some statutes
where real estate is owned by one person, but held adversely by
another, the owner thereof may devise his interest therein,”

69 Tn re Spreckel’s Estate, 162 Cal.
559, 123 Pac. 371; Haley v. Gate-
wood, 74 Tex. 281, 12 S. W. 25.

70In re Gilmore’s Estate, 81 Cal.
240, 22 Pac. 655.

71In re Gray’s Estate, 159 Cal. 159,
112 Pac. 890; In re Stewart’s Estate,
74 Cal. 98, 15 Pac. 445.

72 German-American State Bank v.
‘Godman, 83 Wash. 231, 145 Pac. 221.

73 Chaplin v. Leapley, 35 Ind. App.
511, 74 N. E. 546.

74 Hatch v. Ferguson, 57 Fed. 966;
In re Spreckel’s Estate, 162 Cal. 559,

5—Tuomp, WILLs.

123 Pac. 371; Logan v. Logan, 11
Colo. 44, 17 Pac. 99; Carmen v.
Kight, 85 Kans. 18, 116 Pac. 231.

75 Gallon v. Haas, 67 Kans. 225, 72
Pac. 770.

76 Keeler v. Lauer, 73 Kans. 388, 85
Pac. 541.

77 Atwood v. Weems, 99 U. S. 183,
25 L. ed. 471; May v. Slaughter, 3
A. K. Marsh. (Ky.) 505; Humes v.
McFarlane, 4 Serg. & R. (Pa.) 427;
Watts v. Cole, 2 Leigh (Va.) 653.

78 Whittemore v. Bean, 6 N. H. 47.
§ 67 WILLS” 66
although this could not be done unless authorized by statute.”
Where, however, the testator has parted with all his interest in
real estate, but reserves a right to re-enter for breach of condi-
tion subsequent, he has no interest capable of devise.*° Also a
mere possibility that real estate may revert to the grantor is
not devisable,** and where a grantor of land reserves a life estate
in himself, without any provision for forfeiture or re-entry, he
has no interest that can be devised.*?

§ 67. Interests not surviving, and property transferable to
others at testator’s death.—If a testator’s interest in property
is such as will not survive him, he can not dispose of it by will.
Thus, where his interest is for life only it is incapable of de-
vise.** But it has been held that a life estate with remainder
over at the death of the life tenant to his children then living
or the issue of such as may be dead, the fee abides with such
life tenant during such contingency, and if the line of remainder-
men is extinct at the death of the life tenant his title is free
from the remainder and subject to disposal by his will.**

Likewise in jurisdictions where joint tenancy still exists, a
testator can not devise his interest in the joint property to the
prejudice of his cotenants.*°

Where property in the hands of a testator is transferable to
others at his death it is not subject to disposition by his will.*®

79 Poor v. Robinson, 10 Mass. 131;
Smith v. Van Dursen, 15 Johns. (N.

45 N. E. 686; Studdard v.. Wells, 120
Mo. 25, 25 S. W. 201; In re Willis,

Y.) 343; Davis v. Martin, 3 Munf.
(Va.) 285.

80 Ruch v. Rock Island, 97 U. S.
693, 24 L. ed. 1101; Southard v. Cen-
tral R. Co., 26 N. J. L. 13; Upington
v. Corrigan, 151 N. Y. 143, 45 N. EL
359, 37 L. R. A. 794,

81 Presbyterian Church vy. Venable,
159 Ill, 215, 42 N. E. 836, 50 Am. St.
159,

"82 Studdard v. Wells, 120 Mo. 25,
25 S. W. 201.
83 Young v. Snow, 167 Mass. 287,

25 R. I. 332, 55 Atl. 889; Dorion v.
Dorion, 20 Can. Sup. Ct. 430.

84 Bigley v. Watson, 98 Tenn. 353,
39 S. W. 525, 38 L. R. A. 679.

85 Wilkins v. Young, 144 Ind. 1,
41 N. E. 68, 596, 55 Am. St. 162.

86 Bowman v. Violet, 4 T. B. Mon.
(Ky.) 350; Reed v. Reed, 53 Maine
527; Daniels v. Pratt, 143 Mass. 216,
10 N. E. 166; Mellows v. Mellows, 61
N. H. 137; In re Van Horn, 5 N. J.
L. 372; Webb v. Meyers, 64 Hun 11,
18 N. Y. S..711, 46 N. Y. St. 42.
CHAPTER V

TESTAMENTARY CAPACITY AND RESTRICTIONS UPON TESTATOR

SECTION SECTION
75. Capacity to make a will in gen- 81. Married women.
eral, 82. Convicts and persons guilty of
76. At what time capacity must exist. crime.
77. Limitations and restrictions upon 83. Persons of unsound mind.
capacity in general. 84. Aged persons.

78. Restrictions upon power of testa- 85. Deaf, dumb and blind persons.
tor to give to charitable and re- 86. Persons under duress or undue
ligious uses. influence.

79. Capacity of aliens. 87. Drunkards and drug fiends.

80. Capacity of infants.

§75. Capacity to make a will in general.—The capacity of
a person to make testamentary disposition of his property is
generally expressed or implied in the different statutes of wills,
and the other statutes relating thereto of the different states." In
some jurisdictions, however, it is held that every one of mature
age and sound mind has an inherent right to make a will and
have it carried out according to his intent.2 The very purpose
of the statute of wills was to recognize and create a right in
the owner, having testamentary capacity, to make disposition of.
his property according to his own choice and pleasure, and in
variance, if need be, to the usual rules of inheritance as fixed by
the statute of descent and distribution.* The legislative body of
each state has plenary power to withhold or grant the right to
make a will, and where a legislative body does grant this right,

1United States v. Perkins, 163 U. See also Digest of Statutes, post ch.
S. 625, 41 L. ed. 287, 16 Sup. Ct. 1073; 28.
Wolfe v. Mueller, 46 Colo. 335, 104 2In re Ball, 153 Wis. 27, 141 N.
Pac. 487; In re Graves, 242 Ill. 212,89 W. 8.
N. E. 978; In re Noyes’ Estate, 40 3 Purdy v. Evans, 156 Ky. 342, 160
Mont. 178, 105 Pac. 1013; Strand v. S. W. 1071.
Stewart, 51 Wash. 685, 99 Pac. 1027;

67
§ 76 WILLS 68
it may make its exercise subject to such regulations, restrictions
and requirements as it may see fit to impose upon the testator.*

At common law the capacity to make a will of real estate did
not exist, but all male persons of the age of fourteen and females
of the age of twelve could dispose of their personal property
by will.

In all cases where the capacity to make wills is regulated by
statute, the provisions thereof must be strictly followed.

§ 76. At what time capacity must exist—The point of
time at which the competency of the testator to execute a will
is to be tested is that of the execution of the will,* and where a
codicil is subsequently made he must have capacity at both the
date of the will and the date of the codicil, as a codicil draws
the will down to its own date, and makes the will speak as of
the date of the codicil.’ ;

If the testator at the time of the execution of his will was
qualified to make same, the fact that he subsequently became dis-
qualified does not invalidate his will;* excepting in such cases
as that of the subsequent marriage of a feme sole testatrix,
whereby her will is revoked by operation of law. On the other
hand if at the time of the execution of a will the testator was
not qualified to make the same, but afterward became qualified,
this will not validate his will.*

If there be a want of testamentary capacity at the time of the
execution of the will, such will never takes effect, or, rather, is

#In re Walker’s Estate, 110 Cal.
387, 42 Pac. 815, 30 L. R. A. 460, 52
Am. St. 104; In re Noyes’ Estate, 40
Mont. 178, 105 Pac. 1013.

52 Cooley BI. Comm. *497.

6 Nichols v. Wentz, 78 Conn. 429,
62 Atl. 610; In re Miller, 26 Del.
477, 85 Atl. 803; Terry v. Buffington,
11 Ga. 337, 56 Am. Dec. 423; Boofter
v. Rogers, 9 Gill (Md.) 44, 52 Am.
Dec. 680; Von de Veld v. Judy, 143
Mo. 348, 44 S. W. 1117; In re Buck-

man, 80 N. J. Eq. 556, 85 Atl. 246;
In re MeNitt 2270 Pa 71 72 Atl

32; Steward v. Lyons, 54 W. Va. 665,
47 S. E. 442,

7 Smith v. Day, 2 Pennew. (Del.)
245, 45, Atl. 396; In re Journeay, 15
App. Div. 567, 44 N. Y. S. 548.

8 Sturdevant’s Appeal, 71 Conn. 392,
42 Atl. 70; Harp v. Parr, 168 Ill. 459,
48 N. E. 113; Deming v. Butcher, 91
Iowa 425, 59 N. W. 69; In re Merri-
man, 108 Mich. 454, 66 N. W. 372.

9 Osgood v. Breed, 12 Mass. 525;
Burkett v. Whittmore, 36 S. Car.
428, 15 S. E. 616.
69 CAPACITY AND RESTRICTIONS UPON TESTATOR § 77
not so made and executed as to take effect, without republica-
tion, although a statute giving testamentary capacity should be
subsequently passed, but that a will which was legally executed
by a person having testamentary capacity, which attempted to
pass property not then effectually devised or bequeathed, and
hence invalid as to such devise or bequest, will be validated, and
pass such property included, by force of a subsequent statute

operating to authorize it.*°

§77. Limitations and restrictions upon capacity in gen-
eral.—The limitations and restrictions upon the right of a
person to make testamentary disposition of his property are gen-
erally expressed or implied in the different statutes of wills, and
the other statutes relating thereto of the different states.**

Generally speaking, a testator may dispose of his property as
he chooses, but in doing so he must not contravene any settled
principles of public policy, or any clear right of another growing
out of the statutory provisions or court decisions.‘ Thus if
a person dispose of his property by will for the purpose of per-
mitting an illegal, or immoral object, or an object against pub-
lic policy,** his will to this extent may be void. No one, by his
will, can devise or bequeath property which he has previously
transferred ;** or to which he has neither title nor possession.”

10 Mitchell v. Kimbrough, 98 Tenn.
535, 41 S. W. 993.

11 Plummer v. Coler, 178 U. S. 115,
122, 44 L. ed. 998, 20 Sup. Ct. 829;
United States v. Perkins, 163 U. S.
625, 41 L. ed. 287, 16 Sup. Ct. 1073;
In re Walker’s Estate, 110 Cal. 387,
42 Pac. 815, 30 L. R. A. 460, 52 Am.
St. 104; Walfe v. Mueller, 46 Colo.
335, 104 Pac. 487; In re Grave’s
Estate, 242 Ill, 212, 89 N. E. 978;
Minot v. Winthrop, 162 Mass. 113,
117, 38 N. E. 512, 26 L. R. A. 259;
In re Fox’s Estate, 154 Mich. 5, 117
N. W. 558; State v. Bazille, 97 Minn.
11, 106 N. W. 93,6 L. R. A. (N. S.)
732; In re Noye’s Estate, 40 Mont.
178, 105 Pac. 1013; Ludlow v. Lud-

low, 36 N. J. Eq. 597; In re Berg-
dorf’s Will, 206 N. Y. 309, 99 N. E.
714; State v. Gulbert, 70 Ohio St. 229,
71 N. E. 636; Richardson v. Orth,
40 Ore. 252, 66 Pac. 925, 69 Pac. 455;
Strode v. Commonwealth, 52 Pa. St.
181, 182; In re Cabigting’s Will, 14
Philippine 463; Strand v. Stewart, 51
Wash. 685, 99 Pac. 1027.

12 Rhoads v. Rhoads, 43 Ill. 239;
Heuser v. Harris, 42 Ill. 425.

13Thomas v. National Christian
Assn., 63 Nebr. 585, 88 N. W. 683.

14Refeld v. Bellette, 14 Ark. 148;
Purcell v. Purcell, Riley Eq. (S. Car.)
282; Tolley v. Wilson (Tenn.), 47 S.
W. 156.

15 Dame v. Dame, 20 N. H. 28. A
§ 78 WILLS 70

In some states there are statutory provisions which limit the
power of testamentary disposition to a certain amount of the
estate of the testator who may die leaving him or her surviving
-a wife, or husband, or child, or descendant of a deceased child.**
In all such cases, however, the statutory condition must actually
exist, and the statute be violated, before it becomes operative or

can be applied.*”

§ 78. Restrictions upon power of testator to give to char-
itable and religious uses.—Statutory provisions in many
states prohibit a devise or bequest of property for religious or
charitable purposes, unless the testamentary instrument be exe-
cuted a specified time before the testator’s death.** Thus where
a statute specified that the will should be made two months be-
fore the testator’s death, the testator’s death two weeks after
making his will, invalidated the provisions made for charitable

mere wrongdoer, who has only a
color of title, can not pass any estate
by his will to his devisees. So held
in Doe, ex. dem, Smith v. Bryan, 34
N. Car. 11.

16TIn re Hinckley, Myr. Prob.
(Cal.) 189; In re Duran, 194 N. Y.
477, 127 App. Div. 945, 111 N. Y. S.
1118, 87 N. E. 677; Currin v. Fanning,
13 Hun (N. Y.) 458; In re Stone, 15
Misc. 317, 27 N. Y. S. 583.

17Jones v. Habersham, 107 U. S.
174, 27 L. ed. 401, 2 Sup. Ct. 336;
Kelly v. Welborn, 110 Ga. 540, 35
S. E. 636; St. John v. Andrews’ In-
stitute for Girls, 191 N. Y. 254, 83
N. E. 981, 14 Ann. Cas. 708. See
also St. John v. Andrews’ Institute
for Girls, 191 N. Y. 254, 83 N. E.
981, 14 Ann. Cas. 708. See also St.
John v. Andrews’ Institute for
Girls, 117 App. Div. 698, 102 N.
Y. S. 808; Lawrence v. Elliott, 3
Redf. (N. Y Surr.) 235. But see
Stephenson v.- Short, 92 N. Y. 433;
Thenhald w Fuoman. 44 Ohin St 473

18 California: Civ. Code (1915), 8
1313; District of Columbia: Code
(1911), § 1635; Georgia: Civ. Code
(1911), § 3851; Idaho: Civ. Code
(1908), § 5750; Montana: Civ. Code
(1907), §8§ 4761-4762; New York:
Consol. Laws (1909), p. 949; Ohio:
P. & A. Ann. Code, § 10504; Penn-
sylvania: Purd. Dig. (1903), p. 5129,
§ 13. See also Pottstown Hospital
v. New York Life Ins. &c. Co., 208
Fed. 196; In re Budd’s Estate, 166
Cal. 286, 135 Pac. 1131; Kelley v.
Welborne, 110 Ga. 540, 35 S. E. 636;
In re Schmidt’s Estate, 15 Mont. 117,
38 Pac. 547; Fairchild v. Edson, 154
N. Y. 199, 48 N. E. 541, 61 Am. St.
609; In re Kavanaugh’s Will, 125 N.
Y. 418 (affg. 53 Hun 1, 26 N. E. 470);
Ohio State University v. Folsom, 56
Ohio St. 701, 47 N. E. 581; In re
Paxson’s Estate, 221 Pa. 98, 70 Atl.
280; Milwaukee Protestant Home for
Aged v. Becher, 87 Wis. 409, 58 N. W.
774, 45 Am. & Eng. Corp. Cas. 562.
71 CAPACITY AND RESTRICTIONS UPON TESTATOR § 78
purposes.*® Other statutes restrict the testator to a specified
portion of his estate, which he may dispose of by will for such
purposes.*° Many of these restrictive statutes limit both the
amount of property which the testator may give to charity and
the time which must elapse between the execution of the will and
the testator’s death.”

There are jurisdictions in which the testator is entirely pro-
hibited or greatly restricted from devising his lands to any char-
itable or religious uses.”? If a restrictive statute names a condi-
tion that the testator leave a surviving wife, child, or parent, the
statute will be inoperative unless such condition exists.”

The design of such restrictive statutes is to restrain the power
of the testator in giving, thereby preventing him from disregard-
ing the just claims of those with natural expectations on his
bounty, through pious or philanthropic motives. Their purpose
is to protect the natural objects of his bounty from imprudent
gifts to their neglect. Their aim is to prevent the giving of an
undue proportion to charity by will when relatives have, in the
opinion of a legislative body, a better claim. But they do not
compel the testator to give his property to his relatives, nor de-
prive him of the right to give it all to charity during life.** “It

19In re Smith’s Exr., 149-N. Y. S.
24, 85 Misc. 636. See also Ely v. Ely,
163 App. Div. 320, 148 N. Y. S. 691.

20 California: Civ. Cade (1915),
§ 1313; Georgia: Civ. Code (1911), §
3851; Iowa: Code (1897), § 3270;
Sup. Code (1913), § 3270; Montana:
Civ. Code (1907), §§ 4761-4762. See
also In re Dwyer’s Estate, 159 Cal.
680, 115 Pac. 242; University of
Georgia v. Denmark, 141 Ga. 390, 81
S. E. 238; Chase v. Dickey, 212 Mass.
555, 99 N. E. 410; Hubbard v. Wor-
cester Art Museum, 194 Mass. 280,
80 N. E. 490,9 L. R. A. (N. S.) 689n,
10 Ann. Cas. 1025n, 12 Prob. Rep.
Ann. 416; Healy v. Reed, 153 Mass.
197, 26 N. E. 404, 10 L. R. A. 766n;
In re Durand, 194 N. Y. 477, 87 N.
E. 677, 127 App. Div. 945, 111 N. Y.
S. 1118.

21 Kelley v. Welborne, 110 Ga. 540,
35 S. E. 636.

22 Chambers v. Higgins, 49 S. W.
436, 20 Ky. L. 1425; Blackbourn v.
Tucker, 72 Miss. 735, 17 So. 737;
Barkley v. Donnelly, 112 Mo. 561, 19
S. W. 305; In re Thompson L. R.
(1890), 45 Ch. Div. 161; Canterbury
v. Wyburn (P. C.) A. C. 89, 64 L. J.
P. C. (N. S.) 36.

23 Jones v. Habersham, 107 U. S.
174, 27 L. ed. 401, 2 Sup. Ct. 336;
Reynolds -v. Bristow, 37 Ga. 283; St.
John v. Andrews Inst. for Girls, 191
N. Y. 254, 83 N. E. 981, 14 Ann. Cas.
708. See also St. John v. Andrews
Inst. for Girls, 117 App. Div. 698, 102
N. Y. S. 808.

24Jones v. Habersham, 107 U. S.
174, 27 L. ed. 401, 2 Sup. Ct. 336;
In re Ihmes’ Estate, 154 Iowa 20,
§ 79 WILLS 72

was recognized, perhaps, that in the fear of death, men who
have never exhibited a charitable impulse suddenly awaken to the
fact that behind them are lost opportunities for usefulness that
in some way ought to be made good; and in order to balance the
account they look about for an opportunity to do good with
their money, and find at once a man interested in promoting the
fortunes of some religious or charitable institution, who, without
hesitation, begins to play, and with a skill acquired by long ex-
perience, upon their fears and hopes. Given such a man and
such a situation, it was readily conceived that, in his thought
of self, the just demands of wife or child or parent might be
temporarily lost sight of, and his all devoted to religious or char-
itable purposes through some of the many societies, associations,
and corporations which are to be found on every hand. Hence
the design of the framers of the statute was to place a limita-
tion upon the power of a pefson, thus moved, to dispose of more
than one-half of his property by will to such organizations, to
the end that he should have an opportunity to measure the
claims of his kindred upon him as to the remaining half, unem-
barrassed by the importunities of those whose business it is to
get money for the societies, associations, or corporations they
represent ; and this it was thought would be substantially accom-
plished by an act prohibiting him from giving more than one-
half of his property to the societies, associations, and corpora-
tions most likely to be considered.”*

§ 79. Capacity of aliens—At common law an alien is inca-
pable of transmitting title to property by descent, and upon his
death intestate, the title vests immediately in the state. He may,
however, transmit by will such defeasible title as he has, but
such transfer will not affect the right of the state to acquire the
property, even as against a citizen to whom it has passed.*° The
above rules of common law as to the rights of aliens in respect
to real property have been greatly modified by statute. In some

134 N. W. 429; Allen v. Stevens, 161 25 Allen v. Stevens, 161 N. Y. 122,
N. Y. 122, 55 N. E. 568; Amherst 55 N. E. 568, 575.
College v. Ritch, 151 N. Y. 282, 45 261 Cooley Bl. Comm. *373; 2
73 CAPACITY AND RESTRICTIONS UPON TESTATOR § 80
states resident aliens are placed upon the same footing as citi-
zens as to property rights. In others the statutes apply only to
aliens who have resided for a certain length of time in the state
or who have declared their intention to become citizens. In
some states no distinction is made between residents and non-
resident aliens, but in other states nonresident aliens are treated
with less liberality. So the extent of the right of aliens to devise
real estate becomes a matter of investigation in each state, bear-
ing in mind always that aliens had no common-law right to trans-
mit real property by descent or devise.?’

But testamentary power conferred upon aliens by statute is
strictly local; and until a foreigner is duly naturalized, accord-
ing to the federal laws, he is not entitled in any other state to
privileges other than those which the laws of that state extend
to aliens.?* Both at common law and under the statutes aliens
are capable of acquiring, holding, and transmitting personal
property to the same extent and in the same modes as citizens.”

§ 80. Capacity of infants—As a general rule, at common
law, infants can not make a valid devise of real estate,*° but in
most jurisdictions a male at the age of fourteen,** and a female
at the age of twelve,*? can make testamentary disposition of per-
sonal property, if proved to have sufficient discretion.** At pres-
ent the age of testamentary capacity, as to both personal and
real property, is everywhere regulated by statute,** the age rang-

2? Brigham v. Kenyon, 76 Fed. 30;
Crosgrove v. Crosgrove, 69 Conn.
416, 38 Atl. 219; Jost v. Jost, 1
Mackey (12 D. C.) 487, 4 Ky. L. 110;
Utassy v. Giedinghagen, 132 Mo. 53,
33 S. W. 444. See Digest of Statutes,
post ch. 28.

282 Kent Comm. 70-71.

29 Evan’s Appeal, 51 Conn. 435;
Greenheld v. Morrison, 21 Iowa 538;
1 Cooley BI. Comm. *373; 2 Kent
Comm. 62.

30 Shivers v. Latimer, 20 Ga. 327;
Wells v. Seeley, 47 Hun (N. Y.)
109, 13 N. Y. St. 239; Moore v.

Moore, 23 Tex. 637; Goodell v. Pike,
40 Vt. 319.

31Deane v. Littlefield, 1 Pick.
(Mass.) 239; Davis v. Baugh, 1
Sneed (Tenn.) 477; Moore v. Moore, .
23 Tex. 637.

32 Major v. Hunt, 64 S. Car. 97,
41 S. E. 816; Hyde v. Hyde, Prec.
Ch. 316, 24 Eng. Reprint 149.

33 Banks v. Sherrod, 52 Ala. 267;
1 Cooley Bl. Comm. *497.

84 Allen v. Watts, 98 Ala. 384, 11
So. 646. See Digest of Statutes,
post ch, 28,
§ 81 74

WILLS
ing from fourteen to twenty-one years, and is not in all cases
uniform between the sexes.

§ 81. Married women.—At common law a married woman
could not make a valid devise of her real estate,*> nor could she
make testamentary disposition of her personal property without
the consent of her husband.** She could not in general make a
will disposing of property to her husband, for she was presumed
to act under his coercion, and hence her will in his favor was not
considered as her voluntary act.*’ But the old Jaw on the sub-
ject of wills of married women is now practically obsolete, for
modern statutes generally empower married women to make wills
’ disposing of both real and personal property as if sole.**

Where general power is conferred upon a married woman to
make testamentary disposition of her property, it is held that
she may make a valid disposition thereof by will to her hus-
band ;*° but where a statute expressly provides against such dis-
position she has no power to make it.*®

As a general rule a married woman is incapable of making a
will so as to defeat the right of curtesy, but aside from this she
may dispose of her property by will to the exclusion of her
husband.** If, however, the husband waives his right to the
property of his wife, and consents to her disposing of it by will,

22 Am. Rep. 164; Baker v. Syfritt,
147 Iowa 49, 125 N. W. 998; Kel-
ley v. Snow, 185 Mass. 288, 70 N.
E. 89; Wadhams v. American Home
Mis. Soc, 12 N. Y. 415; Hair v.
Caldwell, 109 Tenn. 148, 70 S. W.
610; Kiracofe v. Kiracofe, 93 Va.
591, 25 S. E. 601.

35 Baker v. Chastang, 18 Ala. 417;
Harker v. Harker, Exr., 3 Harr.
(Del.) 51; George v. Bussing, 15
B. Mon. (Ky.) 558; Wing v. Deans,
214 Mass. 546, 102 N. E. 313; Van
Winkle v. Schoonmaker, 15 N. J. Eq.
384.

"86 Bunnell v. Hixon, 205. Mass. 468,

91 N. E. 1022; Compton v. Pierson,
28 N. J. Eq. 229.

87 Hood v. Archer, 1 McCord (S.
Car.) 225; Wakefield v. Phelps, 37
N. H. 295.

38See Digest of Statutes, post,
ch. 28. See also Deutsch v. Rohlfing,
22 Colo. App. 543, 126 Pac. 1123;
Zeust v. Blatant, 16 App. Cas. (D.

Fuk Aad. FT: - at mT

39 Parrott v. Kelly, 79 Ky. 490, 3
Ky. L. 269; Wakefield v. Phelps, 37
N. H. 295; Bradish v. Gibbs, 3 Johns.
Ch. (N. Y.) 523; Rich v. Beaumont,
6 Bro. P. C. 152,

40 Wakefield v. Phelps, 37 N. H.
295.

41 Stoutenburgh v. Hopkins, 43 N.
J. Eq. 577, 12 Atl. 689; In re Tracy,

OD AT XT G&L NIN
75 CAPACITY AND RESTRICTIONS UPON TESTATOR § 82

the will is valid and operative.” It seems that no particular form
of consent is necessary; it may be by parol or in writing, or im-
plied from circumstances. It must be a consent to the particular
will, and not a mere general consent that the wife may make the
will. It seems that the consent unless founded upon a valuable
consideration, is revocable until the will is probated.“

At common law the marriage of testatrix revoked her will
and in some states it is so provided by statute. The reason for
the common-law rule is found in the fact that the same capacity
is required to revoke as to make a will and upon marriage the
testatrix therefore became incompetent to revoke her will, and,
since there can not be an irrevocable will, it was deemed revoked
by operation of law by marriage. There is a conflict of author-
ity as to whether statutes giving married women full testa-
mentary power impliedly abrogate the common-law rule as to
revocation, but, on principle, it seems that they should have this
effect, since they revoke the reason of the rule.**

§ 82. Convicts and persons guilty of crime.—The early
treatises on the law of wills included a large number of persons
who were disqualified from making testamentary disposition of
their property. Among these were slaves, villains, captives, pris-
oners, traitors, felons, heretics, apostates, usurers, libellers, prod-
igals, and suicides.** Under the old rule of the common law one
attainted of treason and felony could not devise his real estate so
as to deprive the crown of the right to enforce a forfeiture,
though it seems that he could make and receive transfers subject
to such right in the crown.** But a great many of the disquali-
‘fications recognized by the old law no longer exist. In this
country where forfeiture for crime is not generally recognized,

42 Hanson v. Hanson, 81 Kans. 305,
105 Pac. 444; Steward v. Middleton,
47 N. J. Eq. 293, 20 Atl. 846, 17 Atl.
294,

43 Cutter v. Butler, 25 N. H. 343,
57 Am. Dec. 330.

44Roane v. Hollingshead, 76 Md.
369, 25 Atl. 307, 17 L. R. A. 592, 35
Am. St. 438; Kelly v. Stevenson, 85

Minn. 247, 88 N. W. 739, 56 L. R. A.
754, 89 Am. St. 545; In re Lyon’s
Will, 96 Wis. 339, 71 N. W. 362, 65
Am. St. 52.

45 Swinb. pt. 1, § 7 et seq.

46 Avery v. Everett, 110 N. Y. 317,
18 N. E. 148,1L. R. A. 264, 6 Am.
St. 368; Doe, ex. dem. Griffith v.
Pritchard, 5 B. & Ad. 765.
§ 83 WILLS 76
the conviction of crime does not affect the capacity of the per-
son to take or transfer real estate.‘ Attainders, outlawry, dep-
rivation of property except by due process of law, and the cor-
ruption of blood or forfeiture to the state, as a result of convic-
tion of crime are expressly prohibited by the organic law.** It is
provided by statute in some states that a person convicted of
crime can not make a valid will ;*° but it would seem that in the
absence of such a statute a will made by a person convicted of
crime is valid.

The fact that the testator committed suicide soon after mak-
ing his will does not render the instrument invalid; but such fact,
when taken with other proof of mental derangement, may aid
in setting aside the will.°°

§ 83. Persons of unsound mind.—By the statement that
the testator has “a sound mind and memory” is meant that he
is able to execute his will with an understanding of the nature
of the act, such as the recollection of the property he means to
dispose of, of the persons who are or who might reasonably be
the objects of his bounty, and the manner in which it is to be dis-
tributed among them. It is sufficient if he understands what he
is about even if he has less mental capacity than would be re-
quired to make a contract.** But it is evident that it takes more
mental capacity to make some wills than it does to make some
contracts, and vice versa; and there is excellent authority for

47 Rankin v. Rankin, 6 B. Mon.
(Ky.) 531, 17 Am. Dec. 161; Avery
v. Everett, 110 N. Y. 317, 18 N. E.
148, 1 L. R. A. 264, 6 Am. St. 368.

48 Davis v. Laning, 85 Tex. 39, 19
S. W. 846, 18 L. R. A. 82, 34 Am.
St. 784.

49 Kenyon v. Saunders, 18 R. I. 590,
30 Atl. 470, 26 L. R. A. 232. See Di-
gest of Statutes, post ch. 28.

50In re Chevallier’s Estate, 159 Cal.
161, 113 Pac. 130; Duffield v. Morris’
Exr., 2 Har. (Del.) 375; Holton v.

Cochran, 208 Mo. 314, 106 S. W.
1035.

51 Harrison v. Rowan, Fed. Cas. No.
6141, 3 Wash. (C. C.) 580; Terry v.
Buffington, 11 Ga. 337, 56 Am. Dec.
423; Speer v. Speer, 146 Iowa 6, 123
N. W. 176, 27 L. R. A. (N. S.) 294,
140 Am. St. 268; Brinkman v.
Rueggesick, 71 Mo. 553; Kirkwood
v. Gordan, 7 Rich. L. (S. Car.) 474,
62 Am. Dec. 418; Converse v. Con-
verse, 21 Vt. 168, 52 Am. Dec. 58;
Kerr v. Lunsford, 31 W. Va. 659, 8
S. E, 493, 2 L, R. A, 668,
77 CAPACITY AND RESTRICTIONS UPON TESTATOR § 83
the rule that, while contractual capacity implies prima facie the
capacity to make a will, yet neither is a test for the other, and
the presence or absence of one does not conclusively establish
the presence or absence of the other.”

The existence in the mind of the testator of minor details
which do not affect either the natural or selected objects of his
bounty is not inconsistent with testamentary capacity.** All cases
of bodily diseases in some degree affect the mind and thus ren-
der it, technically speaking, unsound, but it does not follow that
the patient is therefore incapacitated from transacting ordinary
business.**

A monomaniac, or a person partially insane, although sensible
and prudent on subjects and occasions other than those upon
which his infirmity is commonly displayed, is not capable of
making a will, if his monomania relates to the object or objects
of his bounty.”

-Eccentricities of conduct, absurd opinions, and a belief in
things which to other persons may seem absurd do not neces-
sarily establish testamentary incapacity.°* The proposition is well
settled that an idiot is incapable of making a valid will.’ But
persons possessing a low grade of intellect yet having capacity
to know and understand the nature and extent of their prop-
erty, the proper objects of their bounty and the nature of the
testamentary act have been held capable of making a valid

52 Turner’s Appeal, 72 Conn. 305,
44 Atl. 310; Greene v. Greene, 145 Ill.
264, 33 N. E. 941; Murphy v. Nett,
47 Mont. 38, 130 Pac. 431; Brown v.
Mitchell, 88 Tex. 350, 31 S. W. 621,
36 L. R. A. 64; In re Segur’s Will,
71 Vt. 224, 44 Atl. 342.

53New Jerusalem Church  v.
Crocker, 7 Ohio C. C. 327, 4 Ohio C.
D. 619.

54Freeman v. Easley, 117 Ill. 317,
7 N. E. 656; Vice v. Hall, 120 Ill.
597, 12 N. E. 236.

55 Gwin v. Gwin, 51 Idaho 271, 48
Pac. 295; Orchardson v. Cofield, 171

Ill. 14, 49 N. E. 197, 40 L. R. A. 256,
63 Am. St. 211; Whitney v. Twombly,
136 Mass. 145; Rivard v. Rivard, 109
Mich. 98, 66 N. W. 681, 63 Am. St.
566; Thomas v. Carter, 170 Pa. St.
272, 33 Atl. 81, 50 Am. St. 770; In
re Segur’s Will, 71 Vt. 224, 44 Atl.
342.

56 Farnum v. Boyd, 56 N. J. Ea.
766, 41 Atl. 422; Onachita Baptist
College v. Scott, 64 Ark. 349, 42 S.
W. 536.

57 Hovey v. Chase, 52 Maine 304,
83 Am. Dec. 514; Browning v. Reane,
2 Phil. Ecc. 69.
§ 84 WILLS 78
will."* The same rules governing the testamentary capacity of

idiots apply to imbeciles."°

§ 84. Aged persons.—Great age alone does not incapaci-
tate a person from making testamentary disposition of his prop-
erty; but, on the contrary, it calls for protection and aid to fur-
ther its wishes, when a mind capable of acting rationally and a.
memory in essentials, are shown to have existed, and the last
will is in consonance with definite and long-settled intentions, is
not unreasonable in its provisions, and has been executed with
fairness.°° “A man may freely make his testament how old
soever he may be. It is one of the painful consequences of ex-
treme old age that it ceases to excite interest, and is apt to be
left solitary and neglected. The control which the law still gives
to a man over the disposal of his property, is one of the most
efficient means which he has in protracted life, to command the
attention due to his infirmities. The will of such an aged man
ought to be regarded with great tenderness, when it appears not
to have been procured by fraudulent acts, but contains those
very dispositions which the circumstances of his situation, and
the course of the natural affections, dictated.”

But where the testator is afflicted with senile dementia, and
the affliction has reached a stage where he does not understand
the act in which he is enagaged, he no longer has capacity to
make a valid will, regardless of what his age may be.*? One of
the surest indications of the approach of senile decay is that of

58 Townsend v. Bogart, 5 Redf. (N.
Y.) 93.

59 Smith v. Smith, 75 Ga. 477;
Primmer v. Primmer, 75 Iowa 415,
35 N. W. 676; Hudson v. Hughan,
56 Kans. 152, 42 Pac. 701; Ayers v.
Ayers, 43 N. J. Eq. 565, 12 Atl. 621;
Rothrock v. Rothrock, 22 Ore. 551, 30
Pac. 453.

60 Bowdoin College v. Merritt, 75
Fed. 480; In re Huston’s Estate, 163
Cal. 166, 124 Pac. 852; Wood v. Lane,
102 Ga. 199, 29 S. E. 180; Lindsey v.

In re Estate of Winch, 84 Nebr. 251,
121 N. W. 116, 18 Ann. Cas. 903;
McIntosh v. Moore, 22 Tex. Civ. App.
22, 53 S. 'W. 611; Maverick v. Reyn-
olds, 2 Bradf. Sur. (N. Y.) 360.

61 Bleeker v. Lynch, 1 Bradf. (N.
Y. Surr.) 458.

62Tn re Huston’s Estate, 163 Cal.
166, 124 Pac. 852; Hudson vy. Hughan,
56 Kans. 152, 42 Pac. 701; Berst v.
Moxom, 163 Mo. App. 123, 145 S. W.
857; Mason v. Rodriguez, 53 Tex.
Civ. App. 445, 115 S. W. 868.
79 CAPACITY AND RESTRICTIONS UPON TESTATOR § 85
loss of memory, and where such loss of memory is such as to
prevent testator from recalling and holding in his mind the value
and extent of his property and the persons who would be the
natural objects of his bounty, he lacks capacity to make a valid
testamentary instrument. But the mere fact that an aged tes-
tator’s memory is failing,** or his judgment is vacillating,*® does
not invalidate his will if it is fairly made and he was free from
any undue influence.°* While age is not of itself a disqualifica-
tion, yet it excites vigilance to see if it is accompanied with inca-

pacity.*”

§ 85. Deaf, dumb and blind persons.—In England it was
formerly held that a deaf and dumb person was, prima facie,
incapable of making a will, being included in the same class with
idiots, among those who lacked testamentary capacity; the rea-
son given for the holding being that they were deprived of the
use of those senses through which intelligence could be com-
municated.® But it was always supposed that if it were shown
that such persons had understanding, or if they were not deaf
from: birth, and could write or speak, having once acquired these
faculties, they were to be regarded like other persons, capable
of making a will.

Persons deprived of the sense of sight have always been held
capable of executing a will, where the act is done with proper
precaution.”

The modern law has restored the capacity to these unfortunate
persons to make testamentary disposition of their property where

65In re Tarr’s Estate, 3 Pa. Co.
Ct. 319.

63 Kramer v. Weinert, 81 Ala. 414,
1 So. 26; In re Packer’s Estate, 164

Cal, 525, 129 Pac. 778; In re Dole’s
Estate, 147 Cal. 18%, 81 Pac. 534.

64 Gates v. Cole, 137 Iowa 613, 115
N. W. 236; McFadin v. Catron, 120
Mo. 252, 25 S. W. 506; Merrill v.
Rush, 33 N. J. Eq. 537; In re Mabie’s
Will, 5 Misc. 179, 24 N. Y. S. 855, 1
Powers 503; Bain v. Cline, 24 Ore.
175, 33 Pac. 542, 41 Am. St. 851; In
re Fow’s Estate, 147 Pa. St. 264, 23
Atl, 447.

66 In re Ames’ Will, 51 Iowa 596,
2 N. W. 408; Watson v. Watson, 2
B. Mon. (Ky.) 74.

67 Whitney v. Twombly, 136 Mass.
145.

882 Cooley BI. Comm. *497.

69 State v. De Wolf, 8 Conn. 93,
20 Am. Dec. 90; Morrison v. Len-
nard, 3 Car. & P. 127.

70 Sharp’s Appeal, 134 Pa. St. 492,
19 Atl. 679.
§ 86 WILLS 80

the proof of their intentions is clear and no circumstance of
undue advantage of their infirmities appears."* Where the dis-
ability of blindness, deafness, or dumbness has not existed from
birth, it may be some evidence of mental incapacity, but the
infirmity itself affords no presumption whatever of legal dis-
qualification.”

§ 86. Persons under duress or undue influence.—A person
making a will should possess the power to withstand all contradic-
tion and control. And whatever will destroy his free agency will
not only invalidate the will as to the person exercising the undue
influence, but the whole will. In short, it must be the will of him
who makes it and not of another person.* Whatever destroys
the free agency is restraint. All overpowering influence, whether
of affection or fear, love or dread, becomes irresistible, from the
fact that it absorbs and swallows up the will and thus virtually
introduces another person’s purpose into the purposes of the
testator, and so, in fact, destroys his personal independence and
virtually his identity. Honest endeavor, importunate solicitation
for remembrance in a will by a wife or child is not necessarily
undue influence."* The law presumes undue influence where a
patient makes a will in favor of his physician, a client in favor of
his attorney, a ward in favor of his guardian, a person in favor
of his priest or religious adviser; and where other cases of confi-
dential relationship exist the wills are viewed with great suspicion
by the law and some proof besides the making of the will is re-
quired. Indeed, the fact of undue influence is often gathered
from all the circumstances surrounding the donor; his health, age
and mental condition; how far he was dependent upon or subject
to the control of the person benefited; the opportunity which the
latter had to exercise his influence, and the disposition of the
donor to be subject to it.”®

71 Rollwagen v. Rollwagen, 63 N. 78 Orchardson v. Cofeld, 171 Til.
Y. 504; Weir v. Fitzgerald, 2 Bradf. 14, 49 N. E. 197, 40 L. R. A. 256, 63°
(N. Y.) 42. Am. St. 211; Baylie’s Exr. v. Spaul-

72 Potts v. House, 6 Ga. 324, 50 ding (Mass.), 6 N. E. 62.

Am. Dec. 329; In re Geale’s Goods, 74 Sturtevant v. Sturtevant, 116 IIL.

3S. & T. 430, 33 L. J. P. 125, 12 W. 340, 6 N. E. 428.
R. 1027. 7 Woodbury v. Woodbury, 141
81 CAPACITY AND RESTRICTIONS UPON TESTATOR § 87

§ 87. Drunkards and drug fiends.x—Drunkenness, unless
so complete as to destroy the victim’s capacity to understand what
he is doing will not invalidate his will.”° It has been held in many
cases that an habitual drunkard may make a valid will.” Thus
if a testator is sober, and in the possession of all his mental facul-
ties at the time of making his will, the fact that he was of intem-
perate habits does not invalidate his will."* If the drunkenness is
of such duration as to produce unsoundness of mind, the same

rules as to the testamentary capacity will apply as in the cases of

mental unsoundness from other causes.”
A person addicted to the use of morphine may make a valid
will if he is not under the influence of the drug at the time of the

execution of the will.®°

Mass. 329, 5 N. E. 275, 55 Am. Rep.
479,

76 Duffield v. Robeson, 2 Harr.
(Del.) 375; In re Convey, 52 Iowa
197, 2 N. W. 1084; Best v. Best, 11
S. W. 810, 11 Ky. L. 215; Pierce v.
‘Pierce, 38 Mich. 412; In re Lee’s Will,
46 N. J. Eq. 193, 18 Atl. 525; Peck
v. Cary, 27 N. Y. 9, 84 Am. Dec. 220;
Key v. Holloway, 7 Baxt. (Tenn.)
575.

77 In re Wilson’s Estate, 117 Cal.
262, 49 Pac. 172; Duffield v. Morris’
Exr., 2 Har. (Del.) 375; Archam-
bault v. Blanchard, 198 Mo. 384, 95.
S. W. 834.

6—Tuomp. WILts.

7 In re Wilson, 117 Cal. 262, 49
Pac. 172; Wiley v. Ewalt, 66 Ill. 26;
McIntire v. McConn, 28 Iowa 480;
Hebert v. Winn, 24 La. Ann. 385; In
re Gilham, 64 N. J. Eq. 715, 52 Atl.
690; Peck v. Cary, 27 N. Y. 9, 84 Am.
Dec. 220; In re Miller’s Estate, 179
Pa. St. 645, 39 L. R. A. 220, 36 Atl.
139; In re Van Alstine, 26 Utah 193,
72 Pac. 942.

79 Swygart v. Willard, 166 Ind. 25,
76 N. E. 755.

80 Bush v. Lisle, 89 Ky. 393, 12 S.
W. 762, 11 Ky. L. 708.
CHAPTER VI

CAPACITY TO TAKE UNDER A WILL AND RESTRICTIONS UPON

BENEFICIARIES

SECTION SECTION
95. Capacity to take under a will in 102. Husband or wife.

general. 103. Children and their descendants.
96. Aliens. 104. After-born children.
97. Private corporations. 105. Adopted children.
98. Public and quasi corporations. 106. Illegitimate children.
99. Unincorporated societies. 107. Subscribing witnesses.
100. Charitable, religious and educa- 108. Paramours.

tional institutions. 109. Murderer of testator.

101. Gifts to separate use of females.

§ 95. Capacity to take under a will in general.—As a gen-
eral rule any person may take property by devise or bequest. But
for reasons of public policy and good morals the law has seen fit
to designate who may and who may not be the objects of the
testator’s bounty. The restrictions and limitations upon the
power to make testamentary disposition of property have been
discussed in a previous chapter.*

The capacity of a person to take a present vested interest under
a will is to be judged as of the date of the testator’s death,” and if
capacity existed at that date, a prior or subsequent incapacity does
not render the gift invalid. But where a devise or bequest is in-
tended to be vested in the beneficiary, not at the death of the
testator, but at some later time, it is immaterial whether the bene-
ficiary is capable of taking at the time of the death, provided he is
capable at the time when the gift is intended to become vested.*

1See ante ch. 5. 4 New Orleans First Congregational

2Hargraves v. Lott, 67 Ga. 133; Church v. Henderson, 4 Rob. (La.)
“Hardesty’s Succession, 22 La. Ann. 209; Lougheed v. Dykeman’s Baptist
332. Church, 129 N. Y. 211, 29 N. E. 249,

3 Hargroves v. Redd, 43 Ga. 142; 14 L. R. A. 410; Wait v. Political
In re McClyment, 16 Abb. N. Cas. Study Soc., 68 Misc. 245, 123 N. Y.
(N. Y.) 262. S. 637.
83 CAPACITY OF BENEFICIARIES § 95

A beneficiary under a will must be in existence either at the
death of the testator or at the time the gift vests." Thus a gift by
will to the heirs of a person not in being at the death of the tes-
tator, is void.* Likewise a gift to a corporation not in existence
at the death of the testator is void.” Also a will devising or be-
queathing property to the estate of a person is void; it not being

a person or entity which can take under a will.®

§96. Aliens—At common law an alien may take title to
real estate by devise,® subject only to the right of the state to claim
it by escheat upon proper proceeding, such as office found.?? But
the common-law rule has been modified by statute in most states
and aliens are now permitted to take real estate by devise as fully
as Citizens can.**

In some states, however, nonresident aliens are forbidden by
statute to acquire any interest in real estate.** The common-law
rule has also been generally modified by treaties made by the
United States with foreign powers, and in jurisdictions where
nonresident aliens are forbidden by statute to acquire real estate
by devise it is held that such treaties supersede the statute disqual-
ifying such aliens to take, as far as the citizens of such nations are

5 Milne v. Milne, 17 La. 46.

6 Sevier v. Douglas, 44 La. Ann.
605, 10 So. 804; Zeisweiss v. James,
63 Pa. St. 465, 3 Am. Rep. 558.

7 Zeisweiss v. James, 63 Pa. St. 465,
3 Am. Rep. 558.

8In re Glass’ Estate, 164 Cal. 765,
130 Pac. 868.

®Cross v. Del Valle, 1 Wall. (U.
S.) 5, 17 L. ed. 515; Smith v. Zaner,
4 Ala. 99; Jones v. Minogue, 29 Ark.
637; People v. Folsom, 5 Cal. 373;
Foss v. Crisp. 20 Pick. (Mass.) 121;
Hall v. Hall, 81 N. Y. 130; Clifton
v. Haig, 4 Desaus. (S. Car.) 330;
Baker v. Shy, 9 Heisk. (Tenn.) 85;
Gray v. Kauffman, 82 Tex. 65, 17 S.

W. 513; Stephen’s Heirs v. Swann,
9 Leigh (Va.) 404. But see Eldon
v. Doe, 6 Blackf. (Ind.) 341.

10 Phillips v. Moore, 100 U. S. 208,
25 L. ed. 603.

11De Geofry v. Riggs, 133 U. S.
258, 33 L. ed. 642, 10 S. Ct. 295; Ni-
crosi v. Phillippi, 91 Ala. 299, 8 So.
561; Utassy v. Geidinghagen, 132 Mo.
53, 33 S. W. 444; Stamm v. Bost-
wick, 122 N- Y. 48, 25 N. E. 233, 9
L. R. A. 597; Hannon v. Hounihan,
85 Va. 429, 12 S. E. 157.

12 Ryan v. Egan, 156 Ill. 224, 40 N.
E. 827; Meier v. Lee, 106 Iowa 303,
76 N. W. 712,
§ 97 WILLS 84
concerned.* ‘At common law an alien may take personal prop-

erty by will for his own benefit.**

§97. Private corporations.—By the common law a private
corporation may acquire title to real estate by devise,** and unless
prohibited by statute, the devise may be made to a foreign corpo-
ration.1* This power was restricted in England by the statute of
Mortmain; and in some states statutes have been enacted which
provide that no devise to a corporation shall be valid unless it is
expressly authorized to take by devise.*”

Statutes sometimes provide that certain corporations shall not
take by gift, grant, or devise more than a certain stated amount
in value of property. Under such a statute a devise or bequest to
a corporation which exceeded the specified amount, was held void
as to such excess; and that as to such excess no title vested in the
corporation.** A devise to a corporation not authorized to take
real estate, or to one which has acquired all the property it is en-
titled by its charter to take, is void.” A statutory limitation on
the power to take by devise in one state, has been held not to af-
fect the power of a corporation of such a state to take by devise
real property of another state.”

A corporation having no capacity to take real estate or other

18 Opel v. Shoup, 100 Iowa 407, 69
N. W. 560, 37 L. R. A. 583; Adams
v. Akerlund, 168 Ill. 632, 48 N. E.
454; Rixner’s Succession, 48 La. Ann.
552, 19 So. 597, 32 L. R. A. 177. See
also Treaties and Conventions, post
ch. 29.

14 Beck v. McGillis, 9 Barb. (N. Y.)
35; 1 Cooley BI. Comm. *373; 2 Kent
Comm. 62.

15 Hubbard v. Worcester Art Mu-
seum, 179 Fed. 406; In re McGraw’s
Estate, 111 N. Y. 66, 19 N. E. 233,
2L. R.A. 387,

16 West Virginia Pulp &c. Co. v.
Miller, 176 Fed. 284.

17 Oklahoma: Rev. Laws
§ 8342; Porto Rico: Civ.

(1910),
Code

Dakota: Comp. Laws (1913), § 1002,
p. 185; Starkweather v. American
Bible Soc., 72 Ill. 50, 22 Am. Rep.
133; Downing v. Marshall, 23 N. Y.
366, 80 Am. Dec. 290.

18In re McGraw’s Estate, 111 N.
Y. 66, 19 N. E. 233, 2 L. R. A. 387.

19 Barton v. King, 41 Miss. 288;
De Camp v. Dobbins, 31 N. J. Eq.
671; Wood v. Hammond, 16 R. I. 98,
17 Atl. 324, 18 Atl. 198,

20 Christian Union vy. Yount, 101
U. S. 352, 25 L. ed. 888; White v.
Howard, 38 Conn. 342; American
Bible Society v. Marshall, 15 Ohio
St. 537. But see Starkweather v.
American Bible Soc. 72 Ill. 50, 22
Am. Rep. 133; House of Mercy v.
85 CAPACITY OF BENEFICIARIES § 97
property at the time the devise or bequest is created, may have
such incapacity cured and may legally be qualified to take before
the happening of the event upon which a devise or bequest was to
become vested.”* But where a devise is absolutely void so that the
title to the property vests in the heirs at law immediately upon the
death of the testator, then a subsequent legislative act enlarging
the capacity of the corporation to take the devise will be unavail-
ing because the title vested in the heirs, and it was not in the leg-
islative power to divest it.”

A corporation having the right to take and hold personal
property may take such property as a bequest under a will.?* The
statutes generally sdo not prevent bequests of personal property
even to foreign corporations. While such corporations have no
legal existence out of the state of their creation yet their existence
is so far recognized in other states that their nonresidence cre-
ates no valid objection to bequests of personalty, provided they
have power to take such gifts under their own charter.**

§ 98. Public and quasi corporations.—As a general rule a
municipal corporation, unless specially restricted, is capable of
taking property by devise, and acting as a trustee for the purpose
of a public nature germane to the objects of the corporation.”
The capacity of a municipal corporation to administer a trust for
educational purposes under a devise has been sustained by the
Supreme Court of the United States.** Also a municipal corpo-
ration may take personal property by bequest.*” It has also been

Quincy v. Attorney-General, 160
Mass. 431, 35 N. E. 1066; Carder v.
Fayette, 16 Ohio St. 353; Philadel-
phia v. Fox, 64 Pa. St. 169; MclIn-
tosh v. Charleston, 45 S. Car 584, 23

21 Plymouth Society v. Hepburn, 57
Hun 161, 10 N. Y. S. 817, 32 N. Y.
St. 943.

22Tn re McGraw’s Estate, 111 N.
Y. 66, 19 N. E. 233, 2 L. R. A. 387.

23 Lounsbury v. Burial Assn., 170
Mich. 645, 129 N. W. 36, 137 N. W.
513; Boardman v. Hitchcock, 136
App. Div. 253, 120 N. Y. S. 1039;
Cornell v. Mount Morris M. E.
Church, 73 W. Va. 96, 80 S. E. 148.

24 Sherwood v. American Bible Soc.,
40 N. Y. 561, 4 Abb. App. Dec. 227.

25 Handley v. Palmer, 91 Fed. 948;

S. E. 943; Sheldon v. Stockbridge, 67
Vt. 299, 31 Atl. 414; Beurhaus’ v.
Watertown, 94 Wis. 617, 69 N. W.
986. :

26 Vidal v. Girard’s Exrs., 2 How.
(U. §.) 127, 11 L. ed. 205.

27In re Crane’s Will, 159 N. Y.
557, 54 N, E. 1089.
§ 99

WILLS

86

held that a devise may be made to a school district,”* a county,” a
state,°° or the general government.**
All municipal corporations hold their property as trustees for
, the general benefit, and, although lands can only be acquired for
the use of such corporation, and such uses are specified in a stat-
ute, the fact that the devise does not specify the particular use to
which the property is to be applied does not invalidate the de-
vise.*? In case there is any doubt about the capacity of a public
corporation to take a devise it is advisable to provide for an equi-
table conversion, by which the proceeds of the real estate are
made to form the subject of a trust as personal property.”

§ 99. Unincorporated societies.—Unincorporated societies
are generally held incapable of taking property by devise or be-
quest, for the reason that the beneficiary is uncertain ;** although
a devise or bequest may be made to trustees of such unincorpo-

rated society for its benefit.*°

Bequests to unincorporated societies organized for charitable
purposes are good and enforcible, unless rendered invalid by local
laws.*® Courts of equity have often given effect to such bequests
as executory devises upon the incorporation of the society subse-

28In re Bulmer’s Estate, 59 Cal.
131.

29 Fulbright v. Perry County, 145
Mo. 432, 46 S. W. 955.

30In re President &c. of Yale Uni-
versity, 67 Conn..251, 34 Atl. 1036.

31 Dickson v. United States, 125
Mass. 311, 28 Am. Rep. 230. But see
United States v. Fox, 94 U. S. 315,
24 L. ed. 192; In re Fox’s Will, 52
N. Y. 530, 11 Am. Rep. 751 (affd. 94
U. S. 315, 24 L. ed. 192).

32 Penny v. Croul, 76 Mich. 471, 43
N. W. 649, 5 L. R. A. 858; Fulbright
vy. Perry County, 145 Mo. 432, 46 S.
W. 955; Gilmore v. Hayworth, 26
Tex. 89.

33 Underwood v. Curtis, 127 N. Y.
523, 28 N. E. 585. See also Forms
and Precedents for Particular Clauses,

34Greene v. Dennis, 6 Conn. 293,
16 Am. Dec. 58; Kennett v. Kidd, 87
Kans. 652, 125 Pac. 36, 44 L. R. A.
(N. S.) 544, Ann. Cas. 1914 A, 592;
Wait v. Society &c. New York City,
123 N. Y. S. 637, 68 Misc. 245; In
re Boulevard, 230 Pa. 491, 79 Atl.
716.

35 Cobb v. Denton, 6 Baxt. (Tenn.)
235; Stone v. Griffin, 3 Vt. 400.

36 Chambers v. Higgins’ Exr., 20
Ky. L. 1425, 49'S. W. 436; Preachers’
Aid Soc. v. Rich, 45 Maine 552; Bur-
bank v. Whitney, 24 Pick. (Mass.)
146, 35 Am. Dec, 312; In re Ticknor’s
Estate, 13 Mich. 44; American Tract
Soc. v. Atwater, 30 Ohio St. 77, 27
Am. Rep. 422; Burr v. Smith, 7 Vt.
241, 29 Am. Dec. 154,
87 CAPACITY OF BENEFICIARIES § 100
quent to the death of the testator.** Where a bequest was made
to an unincorporated society by name, it was held to be sufficient
to entitle it to hold the property where it became incorporated

after the death of the testator.*®

§ 100. Charitable, religious, and educational institutions.
—As a general rule charitable and religious institutions can take
both real and personal property under a will, but the statutes of
many states regulate the amount, character and manner of gifts
to such institutions.*® The restrictions placed upon the amount of
property that may be devised or bequeathed to a religious society
is intended to prevent the accumulation of vast estates by the
church, and not against the power of testamentary disposition.*®
In some jurisdictions it is held that where the statute limits the
amount of a devise or bequest for charitable or religious uses, and
the devise or legacy is in excess of the amount so prescribed, the
beneficiary may take the amount limited to it by the statute.**

The fact that the charter of a charitable or religious corpora-
tion authorizes it to purchase land does not enable it to take land
by devise ;*? nor does an act which authorizes the conveyance of
land for the residence of a minister authorize a devise or bequest
to a church for the purpose of a parsonage.** By statute in some

37 Miller v. Chittenden, 4 Iowa 252;
McIntire Poor School v. Zainesville

326; Contentnea Quaker Soc. v. Dick-
enson, 12 N. Car. 189.

Canal &c. Co., 9 Ohio 203, 34 Am.
Dec. 436; St. Peter’s Church v.
Brown, 21 R. I. 367, 43 Atl. 642.

38 Wade v. American Colonization
Soc., 7 Smedes & M. (Miss.) 663, 45
Am. Dec. 324.

39 Jones v. Habersham, 107 U. S.
174, 27 L. ed. 401, 2 Sup. Ct. 336;
West Virginia P. & P. Co. v. Miller,
176 Fed. 284; Miller v. Ahrems, 150
Fed. 644; In re McCauley’s Estate,
138 Cal. 546, 71 Pac. 458; Kelley v.
Welborn, 110 Ga. 540, 35 S. E. 636.
See also ante, § 78.

40 White v. Keller, 68 Fed. 796;
Barton v. King, 41 Miss. 288; First
Baptist Church v. Robberson, 71 Mo.

41In re McCauley’s Estate, 138 Cal.
432, 71 Pac. 512; Barkley v. Don-
nelly, 112 Mo. 561, 19 S. W. 305;
Kearney v. St. Paul &c. Missionary
Soc. 10 Abb. N. Cas. (N. Y.) 274;
In re Farmers L. & T. Co., 138 App.
Div. 121, 122 N. Y. S. 956, 199 N. Y.
569, 93 N. E. 1120; In re Gregg’s
Estate, 213 Pa. 260, 62 Atl. 856; In
re Hoffner’s Estate, 161 Pa. St. 331,
29 Atl. 33.

42McCartee v. Orphan Asylum
Soc, 9 Cow. (N. Y.) 437, 18 Abb.
Dec. 516.

48 Seaburn v. Seaburn, 15 Grat.
(Va.) 423; Bible Society v. Pendle-
ton, 7 W. Va. 79.
§ 101 WILLS 88

states it is provided that a will must be made a specified time be-
fore the death of the testator in order that a religious or charita-
ble institution be entitled to take a gift or devise thereunder.**

Where the charter of a charitable or religious corporation pro-
hibits the taking of real estate by devise, it has been held that the
gift may be of the proceeds of the sale of the real estate ;*° but it
has also been held that such gift fails entirely.**

In most jurisdictions gifts for saying masses are not upheld,
but there seems to be no objection to the making of a gift abso-
lutely to the church or clergy, with a written request outside the
will that the fund be used for that purpose. If the request be
made in the will the gift is liable to be declared void.*7 In making
such request in the will, however, care should be taken that a
precatory trust be not created.**

§ 101. Gifts to separate use of females.—A testator may
make a devise or bequest for the sole and separate use of a fe-
male, and such gift will be free from the claims of any present or
future husband.*® But in order to vest such gift in the benefi-
ciary alone the intention must be clearly stated. This may be
done by making the gift to the beneficiary “‘to her sole and sepa-
rate use,” or “to her own use, independent of her husband.’ It
would seem that the use of language prohibiting her from alien-
ating the property is not alone sufficient.®*

If the testator intended in creating the separate use to destroy
the curtesy of the husband, such intention must be clearly stated.
The mere fact that-the estate is limited to her separate use, or
that it shall be exempt from the husband’s debts, or that she is

44 See ante, § 78. N. J. Eq. 117; Little v. Bennett, 58

45 Baker v. Clarke Institute, 110 N. Car. 156; Nix v. Bradley, 6 Rich.
Mass. 88; American Bible Soc. v. Eq. (S. Car.) 43. See post ch. 31
Noble, 11 Rich. Eq. (S. Car.) 156. for form of gift.

46 State v. Bates (Wiltbank), 2 50 Swain v. Duane, 48 Cal. 358;
Har. (Del.) 18. Wood v. Wood, 83 N. Y. 575; Holli-

47 Festorazzi v. St. Joseph’s, 104 day v. Hively, 198 Pa. 335, 47 Atl.
Ala. 327, 18 So. 394, 25 L. R. A. 360, 988; Bland v. Dawes, 17 Ch. Div.
53 Am. St. 48. 794,

48 See Precatory Trusts. 51 Stogdon v. Lee, 60 L. J. Q. B.

49 Brock v. Sawyer, 39 N. H. 547; 669, 1 Q. B. 661, 64 L. T. 494, 39 W.
Trentan Ranking Ca wo Wandruff 2 R447 ‘
89 CAPACITY OF BENEFICIARIES § 102
given unlimited power to dispose of it by will, does not destroy
his right of curtesy, unless she disposes of it by will.°*? The mari-
tal rights of a husband in property devised or bequeathed to a
wife is not excluded by the intervention of a trustee, where the

terms of the will do not expressly exclude such rights."*

§ 102. Husband or wife—At common law, a wife may
take property by her husband’s will. The rule, founded upon the
legal unity of husband and wife, that the husband can not trans-
fer property directly to the wife, does not apply to the case of the
transfer by will, for a will does not take effect until after the
death of the testator, and this event severs the matrimonial
union.°* But a wife can not ordinarily make a will disposing of
property to her husband, for she is presumed to act under his co-
ercion, and hence her will in his favor is not considered as her
voluntary act.°> Under modern statutes, however, either spouse
may leave property to the other by will.°° The old law on the
subject of wills of married women is now practically obsolete, for
modern statutes generally empower married women to make wills
disposing of both real and personal property as if sole, but under
some of the early statutes giving a married woman power to
make a will it was provided that she could not devise property to
her husband.*”

Neither husband nor wife is capable of making a will so as to
defeat the respective rights of dower and curtesy, but aside from
this either may dispose of his or her property by will to the exclu-
sion of the surviving spouse.®* The statutes of some states give

14 Mich. 91, 90 Am. Dec. 225; Wake-
field v. Phelps, 37 N. H. 295.

52 Pool v. Blakie, 53 Ill. 495; No-
land v. Chambers, 84 Ky. 516, 2 S.

W. 121; Tremmel v. Kleiboldt, 75 Mo.
255; Cushing v. Blake, 30 N. J. Eq.
689; Stokes v. McKibbin, 13 Pa. St.
267; Chapman v. Price, 83 Va. 392,
11 S. E. 879,

53 Pollard v. Merrill, 15 Ala. 169;
Hunt v. Booth, 1 Freem. Ch. (Miss.)
215.

54Morse v. Thompson, 4 Cush.
(Mass.) 562; Burdeno v. Amperse,

55 Hood v. Archer, 1 McCord (S.
Car.) 225. |

56 Wakefield v. Phelps, 37 N. H.
295. See Digest of Statutes, post,
ch. 28.

57 Wakefield v. Phelps, 37 N. H.
295.

58 Skoutenburgh v. Hopkins, 43 N.
J. Eq. 577, 12 Atl. 689; In re Tracy’s
Will, 3 N. Y. St. 239,
§ 103 WILLS 90
the wife other rights in the estate of her husband which can not
be defeated by his will. In other states, where the value of the
estate is less than a certain amount, he can not by will prevent her

from taking the whole estate.°?

§ 103. Children and their descendants.—Where there are
no statutory provisions to the contrary a testator may by will se-
lect such of his children or their descendants as he may see fit as
beneficiaries, or he may exclude any or all of them from sharing
in his estate.®° In some jurisdictions, however, it is held that the
intention of the testator to exclude his children must appear from
the will;* while in other jurisdictions parol evidence may be ad-
mitted to show that the testator intentionally omitted his children
from the will.°* In jurisdictions where the intention of the tes-
tator to omit his children from the will is required to be shown in
some manner, precaution should be taken to so frame the provi-
sions of the will that no question can arise as to such intention.

Where there is no restriction on the right of the testator to dis-
inherit his children or their descendants, children unintentionally
omitted from the will are generally protected by a statutory pro-
vision. Such statutes usually provide, in some form or other,
that children and their descendants unintentionally omitted from
the will shall take as if the testator had died intestate.

59In re Miller’s Estate, 158 Cal.
420, 111 Pac. 255.

60 Rhoads v. Rhoads, 43 Ill. 239;
Ackerman v. Fichter, 179 Ind. 392,
101 N. E. 493, 46 L. R. A. (N. S.)-
221n, Ann. Cas. 1915D, 1117n; In
re Goldthorp, 115 Iowa 430, 88 N. W.
944; Seguine v. Seguine, 42 N. Y.
663, 4 Abb. Dec. 191, 35 How. Pr.
336; Linney v. Peloquin, 35 Tex. 29.

61In re Stevens, 83 Cal. 322, 23
Pac. 379, 17 Am. St. 252; In re Gar-
raud, 35 Cal. 336; Pounds v. Dale, 48
Mo. 270; Bradley v. Bradley, 24 Mo.
311; Gage v. Gage, 29 N. H. 533;
Chace v. Chace, 6 R. I. 407, 78 Am.
Dec. 446.

AF Cawlnnw 2 Nxt 1272 TT CGC 914

23 L. ed. 596, 10 Sup. Ct. 253; Lorieux
v. Keller, 5 Iowa 196, 68 Am. Dec.-
696; Whittemore v. Russell, 80
Maine 297, 14 Atl. 197, 6 Am. St.
200; Peters v. Siders, 126 Mass. 135,
30 Am. Rep..671; Buckley v. Gerard,
123 Mass. 8.

63 Alaska: Civ. Code (1900), §$§
143, 144; Arkansas: Dig. of Stat.
(1904), § 8020; California: Civ. Code
(1915), § 1307; Idaho: Civ. Code
(1908), § 5744; Indian Ter.: Stat.
(1899), § 3572; Kentucky: Carroll’s
Stat. (1915), § 4848; Maine: Rev.
Stat. (1903), ch. 76, § 9; Massachu-
setts: Rev. Laws (1902), ch. 135, 88
19, 20; Michigan: Howell’s Stats.

£1012 gs 1n000. Can

Miinnaanta +
oi § 104

CAPACITY OF BENEFICIARIES

The statutes of a few states restrict the power of a testator to
dispose of by will a certain portion of his estate, the amount de-
pending on the number of his children ;** and where the testator
in making disposition of his property exceeds the amount per-
mitted by law, the court will make a reduction thereof.®

§ 104. After-born children—Most of the states have
enacted statutes providing in effect that if a child living or leaving
issue at the testator’s death was born after the execution of the
will, such child or issue shall take the share to which he or they
would have been entitled if the testator had died intestate. Ina
number of the states, this provision applies only in case the child
or issue were not provided for otherwise by the testator, or were
not intentionally omitted.°* Some of these statutes provide that

Stat. (1913), $8 7260, 7261; Missouri:
Rev. Stats. (1909), § 544; Montana:
Civ. Code (1907), § 4755; Nebraska:
Cobbey’s Ann. Stat. (1911), §§ 5013,
5014; Nevada: Rev. Laws (1912), §
6216; New Hampshire: Pub. Stat.
(1901), ch. 186, § 10; New Mexico:
Ann. Stat. (1915), § 5870; North Da-
kota: Comp. Laws (1913), § 5674;
Oklahoma: Rev. Laws (1910),
§§ 8372-8374; Oregon: Lord’s Laws
(1910), § 7325; Philippine Islands:
Code of Proc. (1901), §8 614, 753;
Porto Rico: Civ. Code (1913),
§ 3899 (the heir by force of law
to whom the testator has left, for
any reason whatsoever, less than the
legal portion due him may demand
the fulfilment thereof); Rhode
Island: Gen. Laws (1909), ch. 254,
§ 22;° South Dakota: Comp. Laws
(1913), § 1062, p. 190; Utah: Comp.
Laws (1907), § 2761; Vermont: Pub.
Stat. (1906), § 2947; Washington:
Bal. Codes and Stats. (1910), § 1326;
Wisconsin: Stats. (1913), ch. 103,
§ 2287.

64 Patterson v. Gaines, 6 How. (U.
S.) 550, 12 L. ed. 553; Cox v. Von
Ahlefeldt, 50 La. Ann. 1266, 23 So.

959; Ames’ Succession, 33 La. Ann.
1317; Turnell’s Succession, 32 La,
Ann, 1218; Chouquette v. Barada, 23
Mo. 331.

65 Nolan v. New, 31 La. Ann. 552;
Montgomery v. Milliken, Sm. & M.
Ch. (Miss.) 495.

66 Alabama: Civ. Code (1907), $
6160; Alaska: Civ. Code (1900), §8§
143, 144; Arkansas: Dig. of Stat.
(1904), § 8019; Arizona: Rev. Stat.
(1913), par. 1215, 1216; California:
Civ. Code (1915), §§ 1306, 1307; Colo-
rado: Mills’ Ann. Stat. (1912), § 7871;
Delaware: Rev. Codes (1915), § 3252;
Idaho: Civ. Code (1908), $ 5743;
Illinois: Rev. Stat. (1915-1916), p.
981, § 10; Indiana: Burns’ Ann. Stat.
(1914), § 3116; Indian Terr.: Stat.
(1899), § 3571; Iowa: Code (1913),
§ 3279; Kansas: Gen. Stat. (1909),
§ 9816; Kentucky: Carroll’s Stat.
(1915), § 4847; Maine: Rev. Stat.
(1903), ch. 76, § 8; Massachusetts:
Rev. Laws (1902), ch. 135, §§ 19, 20;
Michigan: Howell’s Stats. (1913), §
10998; Minnesota: Gen. Stat. (1913),
§ 7259; Mississippi: Code (1906), §
5080; Missouri: Rev. Stats. (1909),
§ 544; Montana: Civ. Code (1907),
§ 105 92

WILLS
the after-born child will take a share in the estate unless it is ap-
parent from the will that the testator intended that it should not
be specially provided for.®”

At common law the birth of a child subsequent to the execu-
tion of the will does not work a total revocation of the will; but
this rule has been greatly modified by statute in many jurisdic-
tions, some providing that the will is revoked in toto by the sub-
sequent birth of a child, and others that it is revoked in toto by
such birth where no provision is made in the will for the child.
Hence it is important that these statutes be consulted to determine
the rights of after-born children wherever there is a probability
of the event of the birth happening.®*

§ 105. Adopted children—The rights of adopted children
in the estate of their foster parents are almost entirely regulated
by statute. These statutes usually provide that the adopted child
shall have the same rights in the estate of the foster parent as a
natural child, but in the absence of such a provision the adopted
child will receive no part of the estate of its foster parent unless
provided for by will. It is the event of the adoption that fixes,
under the law authorizing the adoption, the legal status of the
adopted child; and the child, by the event of adoption, becomes
the legal child of the foster parent, and stands, as to the property

§ 4754; Nebraska: Cobbey’s Ann.
Stat. (1911), 8§ 5013, 5014; Nevada:
Rev. Laws (1912), § 6215; New
Hampshire: Pub. Stat. (1901), ch.
186, § 10; New Jersey: Comp. Stat.

Gen. Laws (1909), ch. 254, § 23;
South Carolina: Code of Laws
(1912), § 3572; South Dakota: Comp.
Laws (1913), § 1030, p. 187; Tennes-
see: Ann. Code (1896), § 3925;

(1910), p. 5865, §§ 20, 21; New Mex-
ico: Ann, Stats. (1915), §§ 1849, 5870;
New York: Consol. Laws (1909), p.
964; North Carolina: Pell’s Revisal
(1908), § 3145; North Dakota: Comp.
Laws (1913), $ 5276; Oklahoma:
Rev. Laws (1910), ch. 82, art. II,
§ 8371; Ohio: P. & A. Ann. Code
(1912), § 10561; Oregon: Lord’s
Laws (1910), § 7325; Pennsylvania:
Purdon’s Dig. (1910), p. 5135, § 16;
Philippine Islands: Code of Proc.

L10N01N RR FEE WEL. DLA. T-1...4.

Texas: Sayles’ Civ. Stat. (1914), arts.
7865, 7867 ; Utah: Comp. Laws (1907),
§ 2760; Vermont: Pub. Stat. (1906),
§ 2946; Virginia: Ann. Code (1904),
§§ 2527, 2528; Washington: Bal.
Codes & Stats. (1910), § 1326; West
Virginia: Code (1916), p. 790, § 16;
Wisconsin: Stats. (1913), ch. 103,
§ 2286.

87 Chicago, B. & Q. R. Co. v. Was-
serman, 22 Fed. 872.

68 See post ch. 28.
93 CAPACITY OF BENEFICIARIES § 105
of the foster parent, in the same light as a child born in lawful
wedlock, save in so far as the exceptions to the statute authoriz-
ing adoption declare otherwise. And when the statute authorizes
a full and complete adoption, the child adopted thereunder ac-
quires all of the legal rights and capacities, including that of in-
heritance, of a natural child, and is under the same duties.

But a statutory provision making an adopted child the heir at
law of its foster parent does not make it the heir of the kindred of
such foster parent.” The general trend of the authorities is to
the effect that where a statute of adoption makes an adopted child
the child of the adopter for purposes of inheritance, its object is
to enable the child to inherit from, and not through, the adoptive
parent, and that the adopted child will not benefit by a limitation
under a deed or grant to the adopter’s child or children.”* It has
been held that an adopted child is not included in a gift to “chil-
dren’ or “issue,’”’”* unless it clearly appears that the testator in-
tended to include such child; such intent, when legally ascer-
tained, being the test."* In some jurisdictions the adoption of the
child by the testator subsequent to the execution of his will does
not operate to revoke the will; but in. other jurisdictions the
effect is the same as the subsequent birth of a child,”* and acts as
a revocation of a prior will.”

69 Power v. Hafley, 85 Ky. 671, 4
S. W. 683, 9 Ky. L. 369; Virgin v.
Marwick, 97 Maine 578, 55 Atl. 520;
Ferguson v. Herr, 64 Nebr. 649, 90
N. W. 625.

70 Flannigan v. Howard, 200 Ill. 396,
65 N. E. 782, 59 L. R. A. 664, 93 Am.
St. 201; Van Derlyn v. Mack, 137
Mich. 146, 100 N. W. 278, 66 L. R. A.
438, 109 Am. St. 669.

71 Russell v. Russell, 84 Ala. 48, 3
So. 900; Keegan v. Geraghty, 101 Ill.
26; Hockaday v. Lynn, 200 Mo. 456,
98 S. W. 585, 8 L. R. A. (N. S.)
117, 118 Am. St. 672, 9 Ann. Cas.
775; Jenkins v. Jenkins, 64 N. H.
407, 14 Atl. 557; Schafer v. Eneu, 54
Pa. St. 304.

72 Russell v. Russell, 84 Ala. 48, 3

So. 900; In re Schedel’s Estate, 73
Cal. 594, 15 Pac. 297; In re Scholl’s
Will, 100 Wis. 650, 76 N. W. 616.

73 Jenkins v. Jenkins, 64 N. H. 470,
14 Atl. 557; New York Life Ins. &
T. Co. v. Viele, 161 N. Y. 11, 55 N.
E. 311, 76 Am. St. 238 But see
Hartwell v. Tefft, 19 R. I. 644, 35
Atl. 882, 34 L. R. A. 500.

74In re Truman, 27 R. I. 209, 61
Atl. 598.

75In re Comassi’s Estate, 107 Cal.
1, 40 Pac. 15, 28 L. R. A. 414; Davis
v. Fogle, 124 Ind. 41, 23 N. E. 860,
7 LR. A. 485.

76 Flannigan v. Howard, 200 Ill. 396,
65 N. E. 782, 59 L. R. A. 664, 93 Am.
St. 201.

77 Hilpire v. Claude, 109 Iowa 159,
§ 106 WILL, 94

§ 106. Illegitimate children—The right of illegitimate
children to take under the will of their putative parent is gener-
ally regulated or restricted by statute. Hence, unless there is a
statutory provision prohibiting or restricting such right, a testator
may devise or bequeath his property to his illegitimate children,
and even to the exclusion of his legitimate children.” The illegit-
imate child begotten, but not born before the execution of the will
is favored by both American and English law, and a gift to such
child is not considered against the policy of the law.” But in
England if such illegitimate child be not begotten at the time of
the execution of the will, the devise or bequest is void as against
public policy.*? ;

A devise or bequest to an illegitimate child or children is, in
some jurisdictions, limited to a certain amount of the testator’s
estate, and if such gift exceed that amount it is reducible to the
legal amount.** In South Carolina where it is provided by stat-
ute that a testator having lawful children of his own living shall

80 N. W. 332, 46 L. R. A. 171, 77
Am. St. 524; Glascott v. Bragg, 111
Wis. 605, 87 N. W. 853, 56 L. R. A.
258. See post ch, 24.

78 Dunlap v. Robinson, 28 Ala. 100;
Smith v. Du Bose, 78 Ga. 413, 3 S. E.
309, 6 Am. St. 260; Elliott v. Elliott,
117 Ind. 380, 20 N. E. 264, 10 Am.
St. 54; Mowatt v. Carow, 7 Paige
(N. Y.) 328, 28 Am. Dec. 41; Gore
v. Clark, 37 S. Car. 537, 16 S. E. 614,
20 L. R. A. 465; In re Scholl’s Will,
100 Wis. 650, 76 N. W. 616; In re
Sander’s Estate, 126 Wis. 660, 105
N. W. 1064, 5 Ann. Cas. 508, 11 Pro.
Rep. Ann. 350; Holt v. Sindry, L. R.
7 Eq. 170, 38 L. J. Ch. 126, 19 L. T.
Rep. (N. S.) 669, 17 Wkly. Rep. 249.
See also Occleston v. Fullalove, L. R.
9 Ch. 147, 43 L. J. Ch. 297, 29 L. T.
Rep. (N. S.) 785, 22 Wkly. Rep. 305.

79 Pratt v. Flamer, 5 Harr. & J.
(Md.) 10; Holt v. Sindry, L. R. 7 Eq.
170, 38 L. J. Ch. 126, 19 L. T. Rep.

“nt GN (2027 4°97) UKT1.1.. D--~ AAN.

Crook v. Hill, 3 Ch. Div. 773, 46 L.
J. Ch. 119, 24 Wkly. Rep. 876; Daw-
son v. Dawson, 6 Madd. 292, 56 Eng.
Reprint 1102; Evans v. Massey, 8
Price 22, 22 Rev. Rep. 691; Gordon
v. Gordon, 1 Meriv. 141, 35 Eng. Re-
print 628, 15 Rev. Rep. 88.

80 Occleston v. Fullalove, L. R. 9
Ch. 147, 43 L. J. Ch. 297, 29 L. T.
Rep. (N. S.) 785, 28 Wkly. Rep.
305; Howarth v. Mills, L. R. 2 Eq.
389, 12 Jur. (N. S.) 794, 14 L. T.
(N. S.) 544; Hill v. Crook, L. R. 6
H. of L. 265, 42 L. J. Ch. 702, 22
Wkly. Rep. 137.

81Elmore’s Succession, 124 La. 91,
49 So. 989; Compton v. Prescott, 12
Rob. (La.) 56; Balot v. Morina, 12
Rob. (La.) 552; Prevost v. Martel,
10 Rob. (La.) 512; Terrell v. Cham-
bers, 6 Rob. (La.) 243; Williams v.
Newton, 86 S. Car. 248, 68 S. E. 693;
Gore v. Clarke, 37 S. Car. 537, 16
S. E. 614, 20 L. R. A. 465; Hull v.

TT AW Oat RL ren N 4-4
95. CAPACITY OF BENEFICIARIES § 107
give by legacy or devise forthe use and benefit of his illegitimate
child or children one-fourth part only of the real clear value of
his estate, it is held that such provision applies only to property
in the state, and is unaffected by what property he has out of the
state, or how he disposes of it.**? But where such illegitimate
child was left one-fourth of the testator’s estate, and in addition
thereto, a legacy was left to the executor for the use of such ille-
gitimate child, it was held that the legacy was void.*? Inasmuch
as the use of the word “children” does not prima facie include
illegitimate children, it is the better practice to designate them by
such words as will properly identify them.

§ 107. Subscribing witnesses——In many jurisdictions it is
held that a devise or bequest to an attesting witness is void.** But
where such attesting witness would be entitled to a share of the
testator’s estate in case of intestacy, it is held that so much of
such share shall be preserved to him as does not exceed his gift
under the will.

It has also been held that if there are sufficient other competent
subscribing witnesses besides the beneficiary to prove the will the
gift may be valid, and it matters not whether the beneficiary testi-

fied as a witness or not.*®

82 Humphries v. Settlemeyer, 91 S.
Car. 389, 74 S. E. 892; Blount v.
Walker, 28 S. Car. 545, 6 S. E. 558,

88 Gore v. Clarke, 37 S. Car. 537,
16 S. E. 614, 20 L. R. A. 465.

84 Clark v. Hoskins, 6 Conn. 106;
Elliott v. Brent, 6 Mackey (D. C.)
98; Jones v. Habersham, 63 Ga. 146;
Harp v. Parr, 168 Ill. 459, 48 N. E.
113; Hawkins v. Hawkins, 54 Iowa
443, 6 N. W. 699; Clark v. Miller, 65
Kans. 726, 68 Pac. 1071; Finegan v.
Theisen, 92 Mich. 178, 52 N. W. 619;
Rucker v. Lambdin, 12 Sm. & M.
(Miss.) 230; Grimm v. Tittman, 113
Mo. 56, 20 S. W. 664; Hodgman v.
Kittredge, 67 N. H. 254, 32 Atl. 158,
68 Am. St. 661; Martineau v. Simon-
son, 59 App. Div. 100, 69 N. Y. S.

185; McLean v. Elliott, 72 N. Car. 70;
Vrooman v. Powers, 47 Ohio St. 191,
24 N. E. 267, 8 L. R. A. 39; Gamble
v. Butchee, 87 Tex. 643, 30 S. W.
861; Clark v. Clark’s Estate, 54 Vt.
489; Croft v. Croft, 4 Grat. (Va.)
103; Wigan v. Rowland, 11 Hare
157, 21 Eng. L. & Eg. 132; In re
Maybee, 8 Ont. L. Rep. 601.

85 Fortune v. Buck, 23 Conn. 1;
Clark v. Miller, 65 Kans. 726, 68
Pac. 1071, 70 Pac. 586; Grimm v. Titt-
man, 113 Mo. 56, 20 S. W. 664.

86 Caw v. Robertson, 5 N. Y. 125;
Woodbery v. Collins, 1 Desaus. Eq. (S.
Car.) 424; Davis v. Davis, 43 W. Va.
300, 27 S. E. 323; In re Klein, 35
Mont. 185, 88 Pac. 798.
§ 108 WILLS 96

In order to render a devise or bequest to a subscribing witness
void it must be a beneficial interest in him, not a mere trust.** By
express provision of many statutes a devise or bequest to the wife
or husband of a witness whose testimony is necessary to prove the

will is void.**

$108. Paramours.—In the absence of a restrictive statute
a man may make testamentary disposition of all of his property
to his mistress, ignoring his wife, if he does so with free, sound,
and disposing mind, pursuant to the formalities which the law
prescribes.*® The same rule has been applied to a woman who
makes a testamentary disposition of her property to a man with
whom she has had illicit relations; that fact of itself, however
immoral, is not sufficient to invalidate a will made in his favor.

But by statute in some jurisdictions a testator is prohibited
from disposing of his property by will to his paramour, to the ex-

87 Sullivan v. Sullivan, 106 Mass.
474, 8 Am. Rep. 356; Barnard v.
Crossman, 54 Hun 53, 7 N. Y. S.
275, 26 N. Y. St. 30; Hogan v. Wy-
man, 2 Ore. 302; Key v. Weathers-
bee, 43 S. Car. 414, 21 S. E. 324, 49
Am. St. 846.

_ 88Connecticut: Gen. Stat: (1902),
.§ 294; Kentucky: Carroll’s Stat.
(1915), § 4836; Manitoba: Rev. Stat.
(1913), ch. 204, § 12; Massachusetts:
Rev. Laws (1902), ch.. 135, § 3; New
Brunswick: Consol. Stat. (1903), ch.
160, § 9; New Foundland: Consol.
Stat. (1892),:ch. 79, 86; Nova Scotia:
‘Rev. Stat. (1900), ch. 139, § 12;
North Carolina: Pell’s Revisal (1908),
§ 3120; Ontario: Rev. Stat. (1914),
ch. 120, § 17; Philippine Islands:
Code of Proc. (1901), § 622; South
Carolina: Code of Laws (1912), §
3567; Vermont: Pub. Stat. (1906),
§ 2738; Virginia: Ann. Code (1904),
§ 2529; West Virginia: Code
(1916), p. 970, § 18; England: 54
Vict, 1159, § 13; British Columbia-

Rev. Stat. (1911), ch. 241, § 12.

89 Pool v. Pool, 35 Ala. 12; Stant
v. American Security & T. Co., 23
App. (D. C.) 25; Saxton v. Krumm,
107 Md. 393, 68 Atl. 1056, 17 L. R.
A. (N. S.) 477, 126 Am. St. 393;
Waters v. Reed, 129 Mich. 131, 88
N. W. 394; Sunderland v.-Hood, 84
Mo. 293; In re Middleton, 68 N. J.
Eq. 584, 59 Atl. 454; In re Mondorf,
110 N. Y. 450, 18 N. E. 256; West-
brook v. Wilson, 135 N. Car. 400, 47
S. E. 467; Allshouse v. Kelly, 219
Pa, 652, 69 Atl. 88; Mullen v. Mc-
Keon, 25 R. I. 305, 55 Atl. 747;
O’Neall v. Farr, 1 Rich. L. (S. Car.)
80; Bryant v. Pierce, 95 Wis. 331,
70 N. W. 297.

90 Dickie v. Carter, 42 Ill. 376;
Porschet v. Porschet, 82 Ky. 93, 99,
5 Ky. L. 893, 56 Am. Rep. 880, 884;
In re Evans, 37 Misc. 337, 75 N. Y.
S. 491 (affd. 81 App. Div. 636, 81
N. Y. S. 1125); Monroe v. Barclay,
17 Ohio St. 302, 93 Am. Dec. 620.
97 CAPACITY OF BENEFICIARIES § 109
clusion of his wife or children.** Other statutes restrict the dis-
position to a certain amount which the testator or testatrix may
give to those with whom they have unlawfully cohabited, and

such statutes have been strictly construed.”

§ 109. Murderer of testator.—Under the general principle
of law that no man is permitted to acquire property as the result
of his own crime, the murderer of a testator is not allowed to
take as a beneficiary under the will of his victim.®* This is true
even though the slayer is guilty of the crime of manslaughter
only, in killing the testator.

It has been held, however, that the killing of the testator by a
devisee for the purpose of making the will operative does not ren-
der the devise void, but merely authorizes a court of equity to

deny the devisee the right to the fruits of his iniquity.”

®1Gibson v. Dooley, 32 La. Ann.
959.

92 Filhiol’s Succession, 119 La. 998,
44 So. 843; Landry’s Succession, 114
La. 829, 38 So. 575; Hamilton’s Suc-
cession, 35 La. Ann. 640; Olivier v.
Blancq, 2 La. Ann. 517; Bousquet’s
Succession, 10 Rob. (La.) 143; Gore
v. Clarke, 37 S. Car. 537, 16 S. E,
614, 20 L. R. A. 465.

7—TuHomp. WItrs.

98 Roche v. Nason, 105 App. Div.
256, 93 N. Y. S. 565 (affd. 185 N. Y.
128, 77 N. E. 1007); Riggs v. Pal-
mer, 115 N. Y. 506, 22 N. E. 188, 5 L.
R. A. 340, 12 Am. St. 819,

Lundy v. Lundy, 24 Can. Sup.
Ct. 650.

95 Ellerson v. Westcott, 148 N. Y.
149, 42 N. E. 540.
CHAPTER VII

PRACTICAL SUGGESTIONS IN PLANNING AND DRAFTING WILLS

SECTION SECTION
115. Knowledge of testamentary law 123. Attorney’s advice and explana-
essential. tion to testator.
116. Testator preparing his own will. 124. Inquiry into testator’s capacity.
117, Testator’s instructions. 125. Precaution against fraud, undue
118. Inquiry concerning testator’s real influence and mistake.
and personal property. 126. Precautionary measures where
119. Inquiry concerning particular contest is probable.

kinds of property or interests. 127. Selecting attesting witnesses.

120. Inquiry concerning character and 128, Suggestions concerning the mak-
kinds of gifts to be made. ing of codicils.

121. Inquiry concerning objects of 129. Time employed in preparation of
testator’s bounty. will.

122. Inquiry concerning management 130. Testing the will before death.
and settlement of estate. 131. Depositary of wills.

§ 115. Knowledge of testamentary law essential.—Wills
are a never-failing source of litigation, due primarily to a lack of
knowledge of testamentary law on the part of draftsmen; and
cases have occurred where even the most experienced lawyers
have, in preparing their own wills, fallen into disastrous blunders.
The earnings of a lifetime are often dissipated or diverted from
the heirs at law, and a sense of hatred and disappointment is en-
gendered by a failure of the will to express in appropriate legal
phraseology the actual intention of the testator.

There is an impression quite prevalent among laymen espe-
cially that a will is a very simple instrument, and that a knowledge
of testamentary law is not required of the person who undertakes
its preparation. But instead of being a simple instrument a will
may be, and usually is, the most intricate of all legal documents,
and its preparation is one of the most difficult and responsible
tasks of the lawyer’s business, one which calls for the greatest
amount of skill and legal knowledge. In an early case Lord Coke

98
99 SUGGESTIONS IN DRAFTING § 116

said: “TI find great doubts and controversies daily arise on de-
vises made by last wills * ™* * in respect of obscure and in-
sensible words and repugnant sentences, the will being made in
haste, and some pretend that the testator in respect of extreme
pain was not compos mentis and divers other scruples and ques-
tions are moved upon wills. But if you please to devise your
lands by will, make it by good advice in your perfect memory and
inform your counsel truly of the estates and tenures of your land
and by God’s grace the resolution of the Judges in this case will
be a good direction to learned to make your will according to
law and thereby prevent questions and controversies.”* Upon
another occasion the same learned author and jurist said: “‘Wills,
and the construction of them, do more perplex a man than any
other learning.” Hence, a last will and testament, being a serious
and formal document, its preparation should be undertaken only
by a person who is thoroughly familiar with the legal rules and
principles governing testamentary dispositions. This applies to
the testator preparing his own will, as well as the lawyer who is
engaged to prepare it for him. A lawyer may be suddenly called
upon to make a will, perhaps by a bedside, without opportunity to
consult his library, and unless he is familiar with testamentary
law and the usual formalities required by the statute, and has a
thorough knowledge of the legal phraseology appropriate to
carry the wish of the testator into effect, he should not undertake
the task, especially if the testator’s estate is large, and he wishes
to tie it up or devote it to specific purposes. If the person who
undertakes the preparation of a will has taken the precaution to
obtain a clear conception of the intention and wishes of the tes-
tator and has used the proper words or phrases that will express
such wishes, there will be no necessity for construction or inter-
pretation.

§ 116. Testator preparing his own will—There is nothing
to prevent a person from writing his own will.? Any person of
fair intelligence and education may safely do this where his es-

1 Butler & Baker’s Case, 3 Coke 25. 2TIn re De Hart, 67 Misc. 13, 122
N. Y. S. 220.
§ 117 WILLS 100

tate is small and no attempt is made at complex dispositions ; but
where it is proposed to make an unnatural or complicated dispo-
sition of his property, involving a considerable estate, it would be
very unwise for him to make the will without consulting some
competent attorney and submitting to him the plans of the draft.
As a general rule laymen prepare their wills only from a particu-
lar standpoint, and consider only the probable or natural contin-
gencies. Their scheme does not always comprehend possible fu-
ture events, the happening of which might render the will unintel-
ligible or ineffective. They do not consider the effect of death,
infancy or marriage of the beneficiaries under all possible combi-
nations.

If it is proposed to create conditions, limitations, remainders,
etc., a knowledge of the use of technical terms is indispensable,
and unless the testator possess such knowledge he should not at-
tempt such provisions. Whether the testator writes his own will,
or whether its preparation is left to another, he at least must
plan the disposition himself. This plan may embrace such mat-
ters as the property to be devised or bequeathed, the persons or
objects of his bounty, and the kind or character of the gifts to be
made. Many other things may be included in the testator’s plan,
but the above matters must be held firmly in his mind at the time
the will is executed.

If the testator decides to write his own will, without the aid or
advice of an attorney, he may profit by a careful perusal of the.
plans of other testators and forms of model wills to be found in
leading text books on the subject. He must make sure that the
model used fits his financial and family circumstances. And
where a complicated disposition is undertaken it is not safe for
him to follow a precedent without competent legal advice.

§ 117. Testator’s instructions.—Where the testator em-
ploys an attorney to prepare his will he should furnish the latter
with the necessary information for carrying out his wishes. This
information is usually furnished in the form of a written memo-
randum of instructions, and the testator is often prompted to give
such instructions by proper inquiry on the part of the attorney.
 

101 SUGGESTIONS IN DR Se sh )) § 118

This memorandum should at least contain the full oo of the
testator, place of domicil, whether married or single and with or
without children or descendants, names or descriptions of the
beneficiaries, the property to be given to each, the names of exec-
utors and trustees, and such other matters as the testator’s wishes
may suggest. Where the testator manifests a want of explicit-
ness or candor in communicating the actual state of his property
or circumstances he should be admonished of the danger of with-
holding any information necessary to a disposition in accordance
with his true wishes and intention.

After the testator has made known his wishes, his attorney
often finds it difficult, if not impossible, to accomplish all that the
testator wishes. Where time will permit, it is a good plan to have
the testator write a preliminary draft of the will himself, as a
guide to work from. Such instrument, if preserved, may prove
valuable as evidence in case of a contest. It is too frequently the
habit of draftsmen to obtain from the testator a mere general
outline of the will, and then, without any further consultation
with him, to follow out in detail the various possible devolutions
of the property according to the testator’s own scheme. ‘This
method often gives rise to much discrepancy in wills, and its
practice is not to be recommended. The more proper course
would seem to be for the testator, subject to the advice and sug-
gestions of the draftsman, to state, step by step, his wishes, and
by that means to preserve such uniformity in the limitations and
provisions as may be attainable.

It not infrequently happens that a testator postpones the mak-
ing of his will until the very moment of death, or so near thereto
that he has little time for reflection or deliberation upon such mat-
ters, much less time in which to prepare a memorandum of in-
structions. In such case the draftsman must make the best of
what information he is able to obtain from the dying testator.

§ 118. Inquiry concerning testator’s real and personal
property.—It is not safe for an attorney to prepare a will dis-
posing of even the smallest interest, without full and accurate in-
formation of the nature and extent of the testator’s property. In
§ 118 WILLS 102

case the preliminary information and instructions furnished by
the testator are insufficient to warrant the preparation of the will,
the draftsman should make inquiry respecting all matters upon
which information is lacking. Thus he should inquire fully as to
the nature and extent of the testator’s property, both real and
personal. A devise of real estate, being governed by the lex rei
sitae it is important to know its exact location and correct de-
scription.’ If the real estate is described by metes and bounds
as well as by the name of the occupant, it should be ascertained if
the two descriptions concur.* The exact estate or interest which
the testator owns should be ascertained; and if the property is
incumbered, or will be incumbered when the devise vests, it is im-
portant to know whether the devise is to be made subject to or
free from the incumbrance, and if made free from the incum-
brance, whether or not the same is to be paid out of the personal
estate of the testator.? If the devise is to be for use only, the
draftsman should inquire whether such use is to be exclusive,
what its duration is to be, whether for life, for years, or for any
other limited period ;* and if the use is for the life of the devisee,
whether he is to have the power to dispose of the property,’ or to
lease it for a period extending beyond his term.* He should as-
certain what gift, if any, the testator wishes to make the devisee
in lieu of the devise in case the real estate is sold before the devise
vests.” He should ascertain what disposition, if any, the testator
wishes to make of after-acquired real estate.*° He should know
the wishes of the testator concerning any interest the latter may
have in a contract for the sale or purchase of real estate pending
at the time of death; how the land in case of purchase, or how
the proceeds in case of sale, is to go, and what is to be done in
case the purchase is not completed."*

The draftsman should also ascertain the wishes of the testator
concerning the disposition to be made of personal property, what
part thereof, if any, is to be given specifically.** He should in-

3 See ante, ch. 3, § 41. 8 See post, ch. 12, § 237.
4See post, ch. 11, § 212. ® See post, ch. 13, § 251.
5 See post, ch. 19. 10 See ante, ch. 4, § 57.

6 See post, ch. 12. 11 See ante, ch. 4. § 60.
103 SUGGESTIONS IN DRAFTING § 120

quire if it is the wish of the testator to pass after-acquired per-
sonal property. If the personal property to be bequeathed con-
sists of securities which may be pledged at testator’s death, he
should ascertain if it is desired that the beneficiary take such
securities subject to or freed from such pledge.

§ 119. Inquiry concerning particular kinds of property or
interests.—The draftsman should ascertain what disposition
the testator wishes to make of personal chattels in the nature of
heirlooms ; whether they are to remain in the family, or are to be
enjoyed in succession by friends or relatives, or whether they are
to be specifically bequeathed.** He should ascertain the testator’s
wishes concerning the home or residential property; whether it
shall be maintained for the benefit of the entire family as a home-
stead, or whether it is to be given in fee simple or for life to the
husband or wife of the testator, or to some one else.?® If the tes-
tator is a member of a partnership the partnership articles should
be carefully examined, and the testator’s wishes obtained regard-
ing the carrying on or winding up the partnership business.*® If
the testator is engaged in business it is important to know what
disposition he wishes to be made of such business; whether it is
to be continued by his executor or trustee, turned into a corpora-
tion, or discontinued entirely. The draftsman should inform
himself relative to the treatment to be made in the will of such
other particular kind of property as burial lots, franchises or priv-
ileges, joint property, community property, life insurance, inter-
ests under other wills, powers of appointment, and trust funds.*’

§ 120. Inquiry concerning character and kinds of gifts to
be made.—The draftsman should ascertain the character and
kind of the devise or bequest which the testator wishes to make,
whether it is to be general, specific, demonstrative, residuary, cu-
mulative, or substitutional.** If general, and there is a deficiency
of assets to pay debts and all legacies in full, what, if any, provi-
sion is to be made concerning preference in payment of some leg-
acies over others, or if it is desired that certain specific legacies

13 See ante, ch. 4, § 56. 16 See post, ch. 19, § 381.

14 See ante, ch. 4, § 55. 17 See post, ch. 11.
15 See ante, ch. 4, § 62. 18 See post, ch. 8.
§ 121 WILLS 104

shall abate in favor of certain general ones.*? If the testator
wishes to make a specific devise or bequest the draftsman should
inquiré what, if any, equivalent gift is to be made in case the de-
vise or bequest fails by reason of a sale or destruction of the sub-
ject of the gift.2° He should ascertain whether the testator
wishes to give one specific gift preference over another.** He
should ascertain whether the gift is to be a vested interest or a
contingent interest, and if vested whether there is to be a present
or a future enjoyment ;*? and if the interest is to be contingent,
what the particular contingency is that will give the beneficiary a
fixed right to the property ;** and whether the gift is to be subject
to being divested or subject to open and let in other benefi-
ciaries ;** also how are rents, profits, or income to be disposed of
meanwhile, when the period of absolute vesting is postponed.”
Where the gift is to a class, as to children, he should ascertain at
what ages are shares to children to vest, and whether the income,
or any portion of it, is to be applied for maintenance until the
vesting period.”® If it is the wish of the testator that the gift be
conditional, he should ascertain if the condition is to be per-
formed before or after the vesting of the gift, and what disposi-
tion is to be made of the estate in case of breach or nonfulfilment
of the condition.”"

§ 121. Inquiry concerning objects of testator’s bounty.—
The draftsman should obtain from the testator the names or de-
scription of the persons or objects who are to become beneficiaries
under the will, and the property or interest to be given to each.
If the testator be married, or is contemplating marriage, it is im-
portant to know what provision, if any, is to be made for husband
or wife both as to the amount and character of the devise or
bequest.?* -Inquiry should be made relative to the existence of an
antenuptial agreement, and where such agreement exists its pro-

19 See post, ch. 8, § 138. 24 See post, ch. 13, § 257.
20 See post, ch. 8, § 137. 25 See post, ch. 13, § 253.
21 See post, ch. 8, § 139. 26 See post, ch. 13, § 256.
22 See post, ch. 13, § 251. 27 See post, ch. 15, § 280.

23 See post, ch. 13, § 254. 28 See post, ch. 6, § 102.
105 SUGGESTIONS IN DRAFTING § 123

visions are to be carefully examined.”® In jurisdictions where
the wife has the right of dower or the husband the right of cur-
tesy it is important to know whether the intended provisions
under the will are to be in lieu of or in addition to such dower or
curtesy.*° Also whether it is the wish of the testator that the
provision for husband or wife be conditional on the surviving
spouse not remarrying.**

Inquiry should be made concerning what provision if any is to
be made for children and other descendants, adopted children,
and after-born children, and whether such provisions are to be in
lieu of or in addition to interests given to such persons by statute;
or whether the gifts to any such persons are to be conditional.
If testator has made gifts to any such persons before his death, or
if any of them are indebted to the testator, it is important to know
if such gifts or debts are to be treated as advancements.”

In case any of the beneficiaries are infarits inquiry should be
made as to whom the gift is to be paid or delivered, whether to a
guardian, to the infant’s parents, or to a trustee, and how much of
the income is to be applied for the use of the infant.** Inquiry
should be made whether, in case of the death of beneficiary be-
fore vesting time, it is the testator’s wish that the children or
other representatives of such beneficiary take the share.**

Where the proposed beneficiary is a female the draftsman
should ascertain if it is the wish of the testator that the gift be for
the sole and separate use of such female, independent of the mari-
tal rights of any present or future husband, or whether he desires
to place any restrictions upon the alienation of the gift.**

Where the testator wishes to give to a plurality of beneficiaries
it is important to know if the gift is intended for each or all col-

lectively; and if all, whether they are to take as a class, as joint
tenants, or tenants in common. If a devise is to be made to a
husband and wife, is it the wish of the testator that they take an
estate by the entirety. And if a husband and wife are joined

29 See ante, § 6. 83 See post, ch. 18, § 349,
30 See post, ch. 30, § 710. 34 See post, ch. 16.
31 See post, ch. 15, § 288. 35 See post, ch. 6, § 101.

32 See post, ch. 22, § 433.
§ 122 WILLS 106

with other beneficiaries in the gift to all, is it intended that each
spouse shall take a share, or that they shall take one share between
them.** If the testator desires to make a devise or bequest to a
creditor, inquiry should be made as to whether he intends the gift
to be in satisfaction of his debt to the beneficiary or in addition
thereto. If he wishes to make a devise or bequest to a person in-
debted to him, is such indebtedness to be forgiven or must the
beneficiary pay the debt.*”

§ 122. Inquiry concerning management and settlement of
estate.—Inquiry should be made of the testator’s wishes con-
cerning such matters as the selection of executors and trustees;
the extent and scope of their powers, duties and liabilities ; com-
pensation of executors and trustees ; whether they are to be given
authority to delegate their powers or appoint their successors;
whether they shall be exempted from giving bond; whether they
are to be given power to sell, mortgage, exchange, or lease real
estate; whether they are to be given authority to sign or indorse
commercial paper; whether they are to be given authority to pur-
chase property of the estate; whether the will is to confer upon
the executor some title, power or right of possession; whether
authority is to be given a majority of the executors or trustees to
act; authority of executors or trustees to invest money, and au-
thority to vote corporate stock.**

Inquiry should be made concerning what provisions, if any, are
to be made respecting the payment of inheritance or legacy tax;
auditing accounts and examining securities ; appointing of agents
or solicitors; distribution in kind; accounting, and final settle-
ment.*?

§ 123. Attorney’s advice and explanation to testator.—
Just how far the attorney ought to go in tendering his advice to
‘the testator without being requested, must depend upon the cir-
cumstances of each particular case; but there is no doubt that he
may have many and great opportunities for counseling modera-

36 See post, ch. 10. 38 See post, ch. 21.
37 See post, ch. 10, § 168. 39 See post, ch. 20.
107 SUGGESTIONS IN DRAFTING § 123

tion and forgiveness, and making suggestions consonant with
reason and justice. He should be careful, however, in giving
such advice, not to incur the risk of being accused of having made
the will himself. He should endeavor, to the extent that circum-
stances will allow, to prevent the testator from carrying into
effect any contemplated injustice toward those for whom he is
bound by natural or moral duty to provide. Thus where the
testator shows a disposition to omit a child from his will, the
attorney should place before him the real effect of such omission,
and, if the circumstances justify it, should endeavor to induce
him to provide for the child in such a manner as may prevent a
repetition of the fault of which the testator complains. The
draftsman, especially if he be a lawyer, is not to be a mere instru-
ment to effectuate as nearly as possible the testator’s intention,
but a higher and a moral duty devolves upon him in the matter ;
for example, that of an adviser for the benefit of the testator’s
family, or any other objects of the testator’s bounty.

The attorney should at least point out to the testator the prob-
able effect of the various provisions of the will, and advise the
testator upon every matter where such advice is requested. He
should carefully consider and direct the attention of the testator
to any inconvenience or disadvantages which may attend the gifts
or limitations the latter may propose to make. Thus he should

-always inform the testator that his subsequent marriage will give
his wife her legal rights in his estate ;*° that the subsequent birth
of issue unprovided for in the will, will work a revocation pro
tanto ;** that the adoption of a child may revoke the will ;* that a
change of domicil may invalidate the will ;** that vested or contin-
gent interests pass under the residuary clause, where no provision
is made as to them.** The incidents attending the form or char-
acter of general, residuary, cumulative or substitutional, and spe-
cific or demonstrative legacies should be fully explained to the
testator.*° He should also be informed of the law pertaining to
lapsed legacies and of the circumstances or events that are liable

40 See post, ch. 24, § 467. 43 See ante, ch. 24, § 466.
41 See post, ch. 24, § 467. 44 See post, ch. 8, § 143.
42 See post, ch. 24, § 467. 45 See post, ch. 8.
§ 124 ‘WILLS 108

to revoke a will.*®° The testator should be advised that the in-
heritance taxes will be payable by the collateral legatee or devisee
unless the will directs its payment out of the residuary estate.”
He should also be advised respecting what will pass under a gen-
eral residuary clause of the will.** If the testator desires to cre-
ate a life estate in personal property, he should be advised to make
provision for a trustee.*® Where the testator desires to create a
trust by his will, the draftsman should make clear to him what a
trust really implies, and he should be informed respecting the law
of wasting investments.”°

In jurisdictions where a surviving husband or wife has rights
in the estate which he or she may elect to take despite the terms of
the will, the attorney should explain this right of election and
point’ out the confusion which it frequently works among the
other provisions of the will.°* Where the estate is to be left for
the benefit of a widow and children, the testator should be advised
that the widow be given power of appointment among the chil-
dren, as in this way her influence over them is preserved and she
is enabled to make final disposition of the estate suitable to their
needs at the time of her death.°* The testator should also be in-
structed as to what disposition the law would make of his prop-
erty were he to die intestate.** Where the testator wishes to in-
clude in his will language reflecting upon the personality of some
person who has injured him or incurred his displeasure, he should
be advised that the use of such language might subject his estate
to a claim for damages, as for libel on the part of the person in-
jured.

$124. Inquiry into testator’s capacity—Before proceed-
ing to take instructions for preparing a will the attorney should
satisfy himself that the party is not incapacitated from making it.
It is an easy matter to determine whether or not the client is le-
gally incapacitated, but it is often difficult to determine his mental
capacity. Counsel should be satisfied, however, with respect to it,

46 See post, ch. 24. 50 See post, ch. 18.
47 See ante, § 15. 51 See post, ch. 3, § 48.
48 See post, ch. 8, § 143. 52 See post, ch. 19, § 382.

49 See post, ch. 12, § 233, 53 See ante, § 2.
109 SUGGESTIONS IN DRAFTING § 125

and must exercise tact in his investigation of the matter. Age is
not of itself a disqualification, but it excites vigilance to see if it
is accompanied with incapacity.°* Disease is not of itself a dis-
qualification, but all infirmities awaken caution to see if mental
capacity is impaired or gone.

The testator should be closely questioned concerning the nature
and situation of his property, and the persons who would natu-
rally be the objects of his bounty. If he is capable of understand-
ing these things and comprehends the nature of the act he is do-
ing, it is fairly safe to proceed with the preparation of the will.
If the testator is ill and under the care of a physician, it is advis-
able for the attorney to consult such physician respecting the men-
tal condition of his patient. If the testator manifests a morbid
delusion respecting his wife or children, his will made while in
such frame of mind is apt to be-contested, and unless the attorney
succeeds in allaying such delusion to the extent that no injustice
is accomplished, he should refuse to prepare the will. If the tes-
tator is intoxicated or under the influence of a drug to such an
extent so as not to know what he is about, the attorney should
refuse to prepare the will while his client is in such condition.*°

§ 125. Precaution against fraud, undue influence and mis-
take.—The attorney should be vigilant and cautious respect-
ing any fraud or undue influence that might be practiced upon
the testator. If the proposed testator be a stranger, the attorney
should require an introduction or identification. In the majority
of cases where the attorney is called upon to draw a will, he is
acquainted with the testator and knows whether he is free from
undue influence, but where the testator is a stranger, extreme cau-
tion should be used, and the circumstances are likely to be such
as to enable the attorney to determine whether it is prudent or
not to prepare the instrument. The instructions for the will
should be taken immediately from the testator himself, rather
than from a third person, particularly where such person is inter-
ested, and where the instructions are given by a party other
than the testator, and more especially where they are given by

54 See ante, ch. 5, § 84. 55 See ante, ch. 5, § 87.
§ 126 WILLS 110

an interested party, it is the bounden duty of the attorney to
satisfy himself as to the proposed testator’s volition and ca-
pacity.

Where the proposed testator is blind, illiterate, or confined to
a sick room, every precaution should be taken to see that he is
not exposed to the suspicion of being defrauded, coerced, or
unduly influenced by any one. If the attorney is named as a
legatee or devisee he should be able to prove by others that the
testator so intended, thus avoiding a possible accusation of fraud-
ulently altering the will, or of inserting that which the testator
did not intend. But by far the safest rule is to have the will
drawn by another, when the attorney is to be remembered by a
bequest or devise.

It is also the duty of the attorney who prepares the will to see
that the testator executes it understandingly, or, in other words,
that he does not execute it through mistake as to the character
of the instrument itself or a material part of its contents. Care
should be exercised that there be no misunderstanding between
the testator and the attorney, whereby the will as drawn up con-
tains provisions different from what the testator really intended.
If the attorney, in preparing the will, misinterprets essentially
the instructions given him by the testator, and his error is shown
to have entered into the execution of the will, the will can not
stand.°°

§ 126. Precautionary measures where contest is probable.
—tThe attorney should consider whether the testator’s situation
exposes him to the suspicion of being defrauded, coerced, or
subject to the undue. influence of certain persons; as if, for
instance, he should be aged, blind, illiterate, or confined to a
sick room and excluded from social intercourse. Where such is
the condition of the testator the attorney should be very care-
ful of the proof that he executed the will intelligently and of his
own free volition. Care should be taken that the witnesses to
the will understand that the testator is fully acquainted with its

56 Christman v. Roesch, 198 N. Y. 538, 92 N. E. 1080,
111 SUGGESTIONS IN DRAFTING § 127

contents.°* To this end the attorney should read the will aloud
to the testator in the presence of the attesting witnesses.°* If it
is the disposition of the testator to benefit some one whose access
and opportunity of influencing him is much greater than others
having equal natural claims upon his bounty, his testamentary
act should be carefully hedged in with strong and ample proof
of capacity and freedom from fraud or undue influence. While
the presence of a beneficiary under a will at its execution is not
in all cases improper or objectionable, yet where his presence is
not absolutely required he should be requested to retire. If the
testator be infirm or of great age it is advisable to fortify care-
fully against litigation, both in the scheme of disposition and in
the proof of mental capacity at the time the will is executed.
If deemed prudent the instrument should be read aloud in the
presence of the witnesses and the testator. The testator should
be requested to talk with the witnesses and others, and impress
upon them his favorable condition. It is proper, in some cases,
to have the testator converse with a reliable physician at the time
the will is executed. Where the testator is of intemperate hab-
its, or addicted to the use of drugs, make sure the proof that he
is sober and free from the effects of narcotics at the time the will
is executed.

§ 127. Selecting attesting witnesses.—In view of the fact
that the witnesses to a will are apt to be called as witnesses in
case the probate thereof is contested, they should be selected with
great care. Only those whose testimony in a court of justice will
carry conviction should be chosen, especially where the circum-
stances attending the testator and his relatives is such as to ren-
der a contest probable. The witnesses should be disinterested,
clear-headed persons, whose testimony will carry favorable weight
in support of the will. Care should be taken to select no witness
who is likely to stultify himself or yield to bribes.

Persons of intelligence and character, preferably those engaged.
in business or professional pursuits, should be chosen, as they

57 Jarman on Wills (6th ed. Big.) 58 Weir v. Fitzgerald, 2 Bradf. (N.
*35, Y.) 42.
§ 128 WILLS 112

are not so apt to have their testimony weakened by a rigid cross-
examination. Besides the signatures of such persons are more
easily proved in case they should die before the will is offered
for probate. The witnesses should be selected from the testa-
tor’s acquaintances in order to prevent fraud and impersonation.
The testator may select his lawyer as a witness without incur-
ring the risk of having the communications made by him to
his attorney held privileged, as his selection of the attorney as
a witness is deemed as a waiver of the privilege.*° The same
rule permits a physician or surgeon, who signs a will as a wit-
ness, to testify respecting the mental and physical condition of
the testator.°° Therefore, the testator who wishes to fortify the
execution of his will with expert medical testimony may do so
by having his medical experts attest the instrument, and as a fur-
ther precaution he may execute a written waiver of his privilege,
so that it can not be insisted upon to exclude the testimony.”

§ 128. Suggestions concerning the making of codicils.—
The attorney should not attempt the preparation of a codicil un-
less he has‘before him the original will or an exact copy thereof.
The memory of the testator should not be relied upon concerning
the provisions of the original will, for to do so might result in
a conflict or inconsistency between the two instruments. Some
testators have a particular fondness for making codicils affecting
the whole scheme of the original will. Many embarrassing ques-
tions have grown out of a will to which numerous codicils have
been made; hence the practice of making a large number of
codicils should be discouraged. Where, however, a codicil em-
braces a simple provision not materially affecting the will, no
question is likely to arise.

Where several codicils have already been made, and the tes-
tator is undoubtedly competent and free to make a new will

59In re Wax, 106 Cal. 343, 39 Pac. 60In re Mullin, 110 Cal. 252, 42
624; Denning v. Butcher, 91 Iowa Pac. 645.
425, 59 N. W. 69; In re Coleman, 61 Dougherty v. Metropolitan L.
111 N. Y. 220, 19 N. E. 71; McMas- Ins. Co., 87 Hun 15, 33 N. Y. S. 873.
ter v. Scriven, 85 Wis. 162, 55 N. 62 Richardson v. Hall, 124 Mass.
W. 149, 39 Am. St. 828. 228.
+

113 SUGGESTIONS IN DRAFTING § 129

embracing the provisions of the original will and all codicils
made thereto, it is advisable to destroy utterly whatever instru-
ment or instruments precede, and make a new will which shall
embrace the whole disposition and stand as sufficient by itself.
But if the testator be very old or infirm, or there is any doubt
about his capacity to make the codicil or codicils, it is better to
keep the original will intact. .

§ 129. Time employed in preparation of will—Too much
attention can not be given to the plan and preparation of a will,
and it is never advisable to hasten the matter unless the circum-
stances make it necessary. Where the circumstances will permit,
the will should be made deliberately, with sufficient time for con-
sultation and revision. Ample time should be employed to get
at the real purpose of the testator, and to ascertain if he com-
prehends the full force of his act. Great pains should be taken
to obtain full and complete instructions from the testator, and
where time will permit he should himself prepare a preliminary
draft of the will.

After taking instructions from the testator the attorney should
prepare a preliminary draft of the instrument which he should
submit to the testator for his approval or disapproval. The provi-
sions of this draft should be carefully gone over, and their effect
fully explained to the testator before preparing the final draft.
The attorney himself should take sufficient time to examine care-
fully the local laws pertaining to wills and their execution, and
to map out the exact provisions to be made against every possible
contingency that may arise in connection with the testator’s fam-
ily and estate before and after death. After the final draft is
completed, it also should be carefully and deliberately gone over
with the testator in an effort to discover if any thing has been
omitted that should be included, or any thing included that should
be omitted.

§ 130. Testing the will before death—As a will takes ef-
fect only upon the death of the testator there can, of course, be
no judicial construction or interpretation thereof until after the
happening of that event. But it is possible, during the lifetime

8—Tuomp. WILLS.
§ 131 WILLS 114

of the testator, to determine with reasonable certainty whether
the will is safe and sound. This may be accomplished by having
the completed will criticized by one or more competent attorneys
who had no part in its preparation. This does not mean that the
attorney or attorneys employed to test the will should be hos-
tile to the one who prepared it. On the contrary, the minds oi
both should be sympathetic, rather than competitive. The attor-
ney who drafted the will may possess equal ability with those
making the test, but the former, having the burden of its prepara-
tion and the desire to satisfy his client, may have overlooked some
vital defect that an independent mind might be able to discover.

The attorney who prepares the will is seldom responsible if
the instrument does not express the exact wishes of the testator.
The defect usually grows out of the testator’s failure to prop-
erly instruct the attorney respecting his wishes, or withholding
some important information concerning his property or family.
Therefore, instead of hiding the will away as soon as it is exe-
cuted, the testator should take the precaution to test it while he
is alive and able to repair any defects or ambiguities that may
be discoverable. If the defects are discovered while the testator
is living it is a simple matter to eliminate the bad and doubtful
clauses and to substitute safe and sound ones; but after he is dead
the doubtful and bad provisions must stand as they are written.

§ 131. Depositary of wills—The testator should be cau-
tioned as to the safe-keeping of the will. It should be placed
where it would be inaccessible to those who might have designs
upon its alteration or destruction, and at the same time it should
be deposited in a place where the testator may have access to it
if he desires, or be readily obtained for probate after he is dead.
The safety deposit vault of some trustworthy and disinterested
_person is probably the safest and most suitable place to deposit
the instrument. Or the safe-keeping may be intrusted with the
testator’s attorney, or the executor named in the will. Another
precaution against destruction or alteration is the execution of
the instrument in duplicate, and the placing of the copies in sep-
arate custody. Where but one copy of the will is made, it is
115 SUGGESTIONS IN DRAFTING § 131

never advisable for the testator to retain it in his own custody,
as a presumption arises that he canceled or destroyed it if it
can not be found after he is dead.** In some jurisdictions a
correct copy of a lost or destroyed will may be admitted to pro-
bate. It is provided by statute in some states that the testator
may inclose his will in a sealed receptacle and deposit it in the
registry of probate, and that after his death it shall be delivered
to the executor or executors named in the will.

68In re Hopkins, 172 N. Y. 360, 65 N. E. 173, 65 L. R. A. 95, 92 Am.
St. 746.
CHAPTER VIII

KINDS AND CHARACTER OF DEVISES AND LEGACIES

SECTION SECTION

135. Devises and legacies in general. 140. Demonstrative legacies.

136. General devises. 141. Additional or cumulative lega-
137. Specific devises. cies.

138. General legacies. 142. Substitutional legacies.

139. Specific legacies. 143. Residuary devises and legacies.

§ 135. Devises and legacies in. general—Before execut-
ing his will it is important that the testator should know the
kind and character of the gifts he is about to make, as the same
rights and liabilities of legatees and devisees do not attach to
all. Where the testator is not familiar with the character and
effect of the various kinds of legacies and devises that may be
created, it is the duty of his attorney to explain the same fully
in order that the testator may select those most suitable for car-
rying out his wishes. The proposed gifts must be considered with
reference to the identity of the property to be given,’ to the
amount of the estate to be given,” to the time of the enjoyment
of the estate,* and to the number and connection of the bene-
ficiaries.* In framing the particular kinds of gifts selected great
care should be exercised to use only such words as will clearly
express the intention of the testator. The word “give” may be
used with reference to either real or personal property, yet in
giving real estate by will the proper word to use is “devise.”
The word “bequeath” is used with reference to personal property,
but it may be used for “devise,” and the term “residuary lega-
tee” may be used to pass the residuum of both real and personal
property.” Direct words of gift may be used in creating gifts,

1 See post, ch. 4. 4 See post, ch. 10.
2 See post, ch. 12. 5 Evans v. Crosbie, 15 Sim. 600.
3 See post, ch. 13.

116
117 KINDS AND CHARACTER OF DEVISES AND LEGACIES § 136

but the vesting of the estate thus given is not postponed, except
the instrument contains words limiting the period of enjoyment
to some future time.® Gifts may also be made indirectly by direc-
tion to executors or trustees to pay or divide, but in such case
the direction to pay or divide constitutes the devise or bequest,
and therefore the vesting in interest is postponed, as well as the
vesting in possession or enjoyment.’ Even where the will con-
tains no formal words of gift, a gift will be implied where the
intention of the testator to dispose of his property by will is
clearly shown.®

§ 136. General devises—A general devise is a gift of a
quantity of land not limited to any particular tract; as a gift of
“forty acres of land.”® At common law, all devises of land,
whether given by particular description or residuary clauses, were
specific,?? and such seems to be the rule still in England and
quite generally in this country.**

Some modification, however, of this doctrine has been admit-
ted in the American courts, in view of statutory provisions which
have the effect of making wills speak from the death of the tes-
tator instead of from their execution. Considering that testa-
tors could not have had property acquired after the execution of
their wills in their minds at the time, and that it is only by force
of statute, and wholly apart from the testator’s intent, that such
property passes at all, and hence that they could not and did not
specifically intend that residuary devisees should take such prop-
erty, the tendency of American decisions has been to hold that
no devise of after-acquired real estate is specific, unless the land

6 Jarman on Wills (6th ed. Big.)
*756.

7 Blatchford v. Newberry, 99 Iil.
11; Reiff’s Appeal, 124 Pa. St. 145,
16 Atl. 636.

8 Boston Safe Deposit &c. Co. v.
Coffin, 152 Mass. 95, 25 N. E. 30, 8
L. R. A. 740; Masterson v. Towns-
hend, 123 N. Y. 458, 25 N. E. 928, 10
L.-R. A. 816.

® Kelly v. Richardson, 100 Ala. 584,

13 So. 785; Nusly v. Curtis, 36 Colo.
464, 85 Pac. 846,7 L. R. A. (N. S.)
592, 118 Am. St. 113, 10 Ann. Cas.
1134; Graham v. De Yampert, 106
Ala. 279, 17 So. 355.

10In re Woodworth’s Estate, 31
Cal. 595; Wilts v. Wilts, 151 Iowa
149, 130 N. W. 906.

11 Robertson v. Broadbent, L. R. 8
App. Cas. 812,
§ 137 WILLS 118

is described with sufficient particularity to enable the devisee to
identify it? A general devise of land will pass a fee simple
title, unless a contrary intention appears from the will.

It would seem that, where real estate is by statute made an
asset in the hands of the executor for the payment of the tes-
tator’s debts, and the devise of real estate is general, instead of
specific, the general bequest of personalty and the general devise
of realty will stand upon an equal footing, and on like grounds
be required to contribute to the indebtedness pro rata.**

§ 137. Specific devises—A specific devise is a gift of a
part or all of the testator’s real estate specifically and definitely
described: as “Lot one, Block two, Park Addition to Indian-
apolis, Indiana.’”’*® But where the testator makes a gift of land
owned by him at the time the will is executed, it has been held
to constitute a specific devise,*® whether the land is definitely de-
scribed or not.” A residuary devise of land is specific, except in-
so-far as it may include after-acquired real estate.**

A gift of the use and improvement of a definitely described
tract of land for a term of one’s natural life, as well as the
remainder after the termination of such life, is a specific devise.*®
Also a devise of the residuary estate is a specific devise of land

12Kelly v. Richardson, 100 Ala.
584, 13 So. 785; In re Woodworth’s

13 So. 785; In re Ratto, 149 Cal. 552,
86 Pac. 1107; Young v. McKinnie,

Estate, 31 Cal. 595; Farnum v. Bas-
com, 122 Mass. 282; In re Martin,
25 R. I. 1, 51 Atl. 589; McFadden v.
Hefley, 28 S. Car. 317, 5 S. E. 812,
13 Am. St. 675.

18 Cain v. Cain, 127 Ala. 440, 29 So.
846; In re Claiborne’s Estate, 158
Cal. 646, 112 Pac. 278; White v.
White, 52 Conn. 520; Simmons v.
Cabanne, 177 Mo. 336, 76 S. W. 618.

14 Wilts v. Wilts, 151 Iowa 149, 130

N. W. 906.

15 Humes v. Wood, 8 Pick. (Mass.)
478; In re De Bernald’s Estate, 165
Cal. 223, 131 Pac. 355, Ann. Cas.
1914 D, 26.

16 Kelly v. Richardson, 100 Ala. 584,

5 Fla, 542; Chambers v. Davis, 15 B.
Mon. (Ky.) 522; Wallace v. Wallace,
23 N. H. 149; Buckwalter v. Klein,
5 Ohio Dec. (Reprint) 55.

17Farnum v. Bascom, 122 Mass.
282; Page v. Eldredge Public Li-
brary Assn., 69 N. H. 575, 45 Atl. 411;
In re White, 125 N. Y. 544, 26 N. E.
909; Wood v. Hammond, 16 R. I. 98,
17 Atl. 324, 18 Atl. 198.

18 Kelly v. Richardsan, 100 Ala.
584, 13 So. 785; Rice v. Rice (Iowa),

19 N. W. 714; Wyman v. Brigden,

4 Mass. 150.

19 Farnum v. Bascom, 122 Mass.
282.
119 KINDS AND CHARACTER OF DEVISES AND LEGACIES § 138

which the testator owned at the time of the execution of the will,
and at his death, and not otherwise disposed of.*? We have seen
that at common law all devises of real estate were regarded as
specific. This rule grew out of the doctrine that a man could
devise only what he had at the time of the execution of his will.
A will was construed as speaking from the date of its execution,
and so the lands which were intended to pass thereunder might
be identified. So where the testator intended to dispose of after-
acquired real estate, he could not well have known the real estate
which he undertook to dispose of, and consequently the reason
for the rule that all devises of real estate are specific fails. We
may conclude, therefore, that no devise of after-acquired real
estate is specific unless the land is described with such partic-
ularity as to enable the devisee to identify it." If the testator,
at the time of his death, no longer owns that particular property
described the devise must fail.”

In most jurisdictions a specific devise of real estate which
is subject to a mortgage or lien placed thereon by the testator
or his ancestor will be exonerated from such mortgage or lien,
unless there is an expressed intention in the will to the contrary.
But this rule does not apply to cases where the testator or his
ancestor purchased the real estate subject to the incumbrance,
unless the testator or his ancestor has rendered himself person-
ally liable therefor.”*

§ 138. General legacies.—A general legacy is a bequest
chargeable upon the general estate, and not so given as to be
distinguishable from other parts of the estate of the same kind;
but is one of a quantity merely, and includes all bequests not
demonstrative or specific.** Thus a bequest of a certain number
of shares of stock, of a kind of which the testator owns a larger

20 Rice v. Rice (Iowa), 119 N. W. 23 Hewes v. Dehon, 3 Gray (Mass.)
714. 7 205.

21Kelly v. Richardson, 100 Ala. 24 Kramer v. Kramer, 201 Fed. 248;
584, 13 So. 785; Wilts v. Wilts, 151 Kelly v. Richardson, 100 Ala. 584, 13
Iowa 149, 130 N. W. 906. So. 785.

22Marshall vy. Hartzfelt, 98 Mo.
App. 178, 71 S. W. 1061.
§ 139 WILLS 120
number, is a general legacy.*® Also a gift of a sum of money
generally and without reference to a particular fund, is a gen-
eral legacy.”* A direction to the executor to invest a certain
sum of money in the purchase of particular securities is a gen-
eral legacy.*7 A bequest of all the testator’s personal property
except a specified portion is a general legacy.”*

Where the testator creates a general legacy, owning no prop-
erty of the kind bequeathed, it amounts by inference to a direc-
tion to his executor to procure, out of the general fund, property
of the character and quantity bequeathed and give it to the
legatee.” General legacies may be satisfied out of the general
assets of the testator’s estate without regard to any particular
fund. There is no intent on the part of the testator to make a
specific disposition of particular assets of his estate as such.°? A
general legacy has no reference to the actual state of the testator’s
property, it being only supposed that he has sufficient property
which, being realized upon, will procure for the legatee that
which he is given.** A general legacy can not fail by reason
of the testator disposing of any particular thing during his life-
time. But if there is a shortage of assets to pay the legacy in
full after the payment of debts, a general legacy must abate
before specific legacies are allowed to suffer.** This may be pre-
vented by a provision that the more important general legacies
shall be paid first.**

25In re Snyder, 217 Pa. 71, 66 Atl.
157, 11 L. R. A. (N. S.) 49, 118 Am.
St. 900, 10 Ann. Cas. 488.

26JIn re Martin, 25 R. I. 1, 54 Atl.
589,

27 Eggleston v. Merriam, 83 Minn.
98, 85 N. W. 937, 86 N. W. 444;
Moore v. Moore, 50 N. J. Eq. 554, 25
Atl. 403; In re Haviland, 19 N. Y.
St. 524, 6 Dem. Surr. 4; White v.
Beattie, 16 N. Car. 87; McFadden v.
Hefley, 28 S. Car. 317, 5 S. E. 812, 13
Am. St. 675.

“8 Kelly v. Richardson, 100 Ala.

584, 13 So. 785; Cooch v. Cooch, 5
Houst. (Del.) 540, 1 Am. St. 161.

29 Weed v. Hoge, 85 Conn. 490, 83
Atl. 636, Ann. Cas. 1913 C, 543.

30 Brainerd v. Cowdrey, 16 Conn.
1; Bradford v. Haynes, 20 Maine
105; Towle v. Swasey, 106 Mass. 100;
Crawford v. McCarthy, 159 N. Y. 514,
54 .N. E. 277.

31 Weed v. Hoge, 85 Conn. 490, 83
Atl. 636, Ann. Cas. 1913 C, 543.

32 Johnson v. Home for Aged Men,
152 Mass. 89, 25 N. E. 44.

33 See post, ch. 20, § 395,
121 KINDS AND CHARACTER OF DEVISES AND LEGACIES § 139

§ 139. Specific legacies—A specific legacy, as the term
imports, is a gift or bequest of some definite thing, or group of
things, and something which is capable of being designated and
identified.** A legacy is said to be specific when it is answered
by any particular portion of, or article belonging to, the estate,
the delivery of which will alone fulfil the intent of the testator.*®
A legacy is specific even though it includes numerous articles.
Thus a bequest of all the horses which the testator may own, of
all his household furniture, of all the books in his library, or of
all the horses, cattle, and farming tools on a particular farm or
farms, is specific.*® But a legacy of money is usually considered
a general legacy.*”

The fundamental distinction between general and specific lega-
cies is that the former may be satisfied out of the general assets
of the testator’s estate without regard to any particular fund,
thing, or things, while the latter are gifts of particular specified
things, or of the proceeds of the sale of such things, or of a spe-
cific fund or a definite portion thereof. In the case of the for-
mer, there is no intent on the part of the testator to make a
specific disposition of particular assets of his estate as such; in
the latter case, the intent is that the attempted gift shall be satis-
fied by the delivery of specific property forming a part of the
estate, and so described as to be identified as the subject of the
gift and in no other way. If the specified property is not owned
by the testator at his death, the legatee, in the case of a specific
legacy takes nothing. He has no claim upon the general assets.**
A general legacy has no reference to the actual state of the tes-
tator’s property, it being only supposed that he has sufficient
property which, being realized upon, will procure for the legatee

34 Dean v. Rounds, 18 R. I. 436, 27
Atl. 515, 28 Atl. 802.

35 Alexander v. Bates, 127 Ala. 328,
28 So. 415; In re Zeile, 74 Cal. 125, 15
Pac. 455; Nusly v. Curtis, 36 Colo.
464, 85 Pac. 846,7 L. R. A. (N. S.)
592, 118 Am. St. 113, 10 Ann. Cas.
1134; Weed v. Hoge, 85 Conn. 490,
83 Atl. 636; In re Bouk’s Estate, 80
Misc. 196, 141 N. Y. S. 922; In re

Campbell, 27 Utah 361, 75 Pac. 851.

36 Tomlinson v. Bury, 145 Mass.
346, 14 N. E. 137, 1 Am. St. 464.

37 Perkins v. Mathes, 49 N. H. 107;
Mathis v. Mathis, 18 N. J. L. 59.

38 Brainerd v. Cowdry, 16 Conn. 1;
Bradford v. Haynes, 20 Maine 105;
Towle v. Swasey, 106 Mass. 100;
Crawford v. McCarthy, 159 N. Y.
514, 54 N. E. 277.
§ 140 WILLS 122
that which is given, while in the case of a specific bequest it
must be a part of the testator’s property itself.*

A specific legacy is the gift of something which a testator,
identifying it by a sufficient description, and manifesting an in-
tention that it should be enjoyed or taken in the state or condi-
tion indicated by that description, separates in favor of a particu-
lar legatee from the general mass of his personal estate.*® In
case of a shortage of assets to pay debts and legacies all prop-
erty not specifically devised or bequeathed must be first applied
before specific legacies can be resorted to.** If the legacy is
specific and is appropriated to the payment of debts, the legatee,
in case the general or residuary legacies are not sufficient, is
entitled to contribution from the holders of other specific lega-
cies.” A specific legacy, if vested, carries interest and profits
from the death of the testator.“ And it has been held that a
specific legacy of a coupon bond carries with it an overdue nego-
tiable coupon attached to it at the testator’s death.** A specific
legacy can only be satisfied by delivery of the thing bequeathed,
and if that thing be not in existence at the time the bequest
would otherwise become operative, the legatee gets nothing*®
unless the testator makes other provision for him in the will.

§ 140. Demonstrative legacies—A demonstrative legacy
is a bequest of a thing or money not specified or distinguished
from all others of the same kind, but payable out of a designated
fund.** Thus a gift of $1,000 payable out of the proceeds of a
specified note and mortgage is a demonstrative legacy.*” But a

89 Bothamley v. Sherson, L. R. 20
Eq. 304.

40 Weed v. Hoge, 85 Conn. 490, 83
Atl. 636, Anh. Cas. 1913 C, 543; Rob-
ertson v. Broadbent, 53 L. J. Ch. 266,
8 App. Cas. 812, 50 L. T. 243, 32 W.
R, 205.

41 Towle v. Swasey, 106 Mass. 100;
Toch v. Toch, 81 Hun (N. Y.) 410,
30 N. Y. S. 1003, 63 N. Y. St. 197; In
te McMahon’s Estate, 132 Pa. St. 175,
19 Atl. 68.

42 Tomlinson v. Bury, 145 Mass.

346, 14 N. E. 137, 1 Am. St. 464; Far-
num v. Bascom, 122 Mass. 282.

#8 Case v. Case, 51 Ind. 277; Max-
well v. Wettenhall, 2 P. Wms. 27.

44 Ogden v. Pattee, 149 Mass. 82, 21
N. E. 227, 14 Am. St. 401.

45 Tomlinson v. Bury, 145 Mass.
346, 14 N. E. 137, 1 Am. St. 464.

46 Kennedy v. Sinnott, 179 U. S.
606, 45 L. ed. 339, 21 Sup. Ct. 233;
Kramer v. Kramer, 201 Fed. 248;
Myers’ Exrs. v. Myers, 33 Ala. 85.

47 Bradford v. Brinley, 145 Mass. :
123 KINDS AND CHARACTER OF DEVISES AND LEGACIES § 140

mere direction to pay a person a certain sum of money without
words of direct gift does not constitute the gift a demonstra-
tive legacy.** <A gift of a certain sum of money with a direction
to the executor to pay the sum over to the legatee out of the pro-
ceeds of an insurance policy on the life of the testator is a demon-
strative legacy.*°

The statutes of some states provide that a legacy is demonstra-
tive when the particular fund or personalty is designated from
which it is to be taken or paid, and if such property fails, in
whole or in part, resort may be had to the general assets, as in
the case of a general legacy.°° In some of the cases, general
and demonstrative legacies are referred to without noticing a
distinction between them, and the difference usually recognized
between them is of no great importance.”

Demonstrative legacies do not fail on account of the fund be-
ing called in or changed, but is still payable out of the general
assets.” In this respect they partake more of the nature of a
general legacy. But in another particular, in that they are not
liable to abatement where there is a shortage of funds to pay
debts and legacies, they partake more of the nature of specific
legacies.** A demonstrative legacy differs from a specific one
in the particular that if the fund pointed out for the payment
of the legacy fails resort may be had to the general assets of the
estate.°* .

81, 13 N. E. 1; Hibler v. Hibler, 104
Mich. 274, 62 N. W. 361; Crawford
v. McCarthy, 159 N. Y. 514, 54 N. E.
277. ;

48 Crawford v. McCarthy, 159 N.
Y. 514, 54 N. E. 277.

49 Byrne v. Hume, 86 Mich. 546, 49
N. W. 576.

50 California: Civ. Code (1915),
§ 1357; Montana: Rev. Code (1907),
§ 4798; North Dakota: Comp. Laws
(1913), § 5720; Oklahoma: Rev.
Stat. (1910), § 8317; South Dakota:
Comp. Laws (1913), § 1071; Utah:
Comp. Laws (1907), § 2802.

51Gelbach v. Shively, 67 Md. 498,
10 Atl. 247; Wilcox v. Wilcox, 13
Allen (Mass.) 252; In re Snyder, 217
Pa, 71, 66 Atl. 157, 11 L. R. A. (N.
S.) 49, 118 Am. St. 900, 10 Ann. Cas.
488.

52 Walton v. Walton, 7 Johns. Ch.
(N. Y.) 262, 11 Am. Dec. 456; Cole-
man v. Coleman, 2 Ves. Jr. 638.

53 Coleman v. Coleman, 2 Ves. Jr.
638.

54 Crawford v. McCarthy, 159 N.
Y. 514, 54 N. E..277; In re Bouk’s
Estate, 141 N. Y. S. 922, 80 Misc. 196.
g f41 WILLS 124

§ 141. Additional or cumulative legacies—An additional
legacy is a gift to a legatee to whom a legacy has already been
given. It may be either by an increase in a codicil of a prior
legacy given in the will, or by another legacy added to that al-
ready given by the will. Where it is the wish of the testator that
the subsequent gift be in addition to the gift or gifts already
made, such wish should be expressed in affirmative words, such
as that the second legacy shall be “in addition” to the first.
Where the legacy is made in addition to prior gifts, it is sub-
ject to the same incidents and conditions as the original legacy,
irrespective of whether the result is or is not advantageous to
the legatee.°*° For example, it can be paid only out of the same
fund,*” is subject to the conditions of a clause of survivorship
in the will,°* and is equally liable to be defeated by limitation
over on death unmarried. ~

But the incidents of the original legacy are held to attach to
the added legacy to the advantage only of the person to whom it
is given.°? Thus where there is a gift to A for life, and after
his decease to B, and then another gift to A in addition to what
was before given, there is no authority for carrying on the
series of limitations to the latter gift.°* Where the same amount
or sum of money is given twice to the same legatee by the same
instrument, only one gift is presumed to have been intended ;*
but two or more gifts are presumed to be cumulative where given
by the same instrument if the amounts are different,®* or where
the amounts are the same if given by different instruments ;*

55 Thompson v. Churchill, 60 Vt.
371, 14 Atl. 699. See post, ch. 30,
§ 678.

56In re De Lavega’s Estate, 119
Cal. 651, 51 Pac. 1074.

57 Mason v. Smith, 49 Ala. 71;
Snow v. Foley, 119 Mass. 102; Her-
zog v, Title Guarantee & Trust Co.,
177 N. Y. 86, 69 N. E. 283, 67 L. R.
A. 146; Barnes v. Hanks, 55 Vt. 317;
Johnstone v. Harrowby, 1 DeG., F. &
J. 183. :

58 Thompson v. Churchill, 60 Vt.
371, 14 Atl. 699,

59 Crowder v. Clowes, 2 Ves. Jr.
449,

60 Buchanan v. Lloyd, 64 Md. 306,
1 Atl. 845, 6 Atl. 171.

61 Mann v. Fuller, Kay 624.

62 De Witt v. Yates, 10 Johns. (N.
Y.) 156, 6 Am. Dec. 326; In re
Powell’s Estate, 138 Pa. St. 322, 22
Atl. 92; Garth v. Meyrick, 1 Bro.
Ch. 30.

63 De Witt v. Yates, 10 Johns. (N.
Y.) 156, 6 Am. Dec. 326; Hurst v.
Beach, 5 Madd. 351.

64 Hollister v. Shaw, 46 Conn. 248.
125 KINDS AND CHARACTER OF DEVISES AND LEGACIES § 142

and where the amounts are different and given in different instru-
ments the presumption is stronger that they are cumulative.”
The general rule is that, when two legacies are bequeathed to
the same person, one by the will and the other by the codicil,
and the testator has given both the legacies simpliciter, the courts
in such cases, in the absence of extrinsic evidence, consider that,
as the testator has given twice, he must prima facie be intended
to mean two gifts; and it seems to be immaterial whether the
legacies are of equal or unequal amounts, or whether they are
of the same or different natures.

§ 142. Substitutional legacies.—A substitutional legacy is
one subsequently given to take the place of another or others
previously given by a former will, or by a codicil executed at a
date prior to that by which the substituted legacy is given.”
Where a legacy given by one instrument is repeated in a subse-
quent instrument with slight variations or additions, the simi-
larity of the two gifts may show that the latter was intended
as a substitute for, and not in addition to, the former. The rule
of construction is that, in the absence of anything to manifest
a contrary intention, two legacies of a quantity of equal amount
bequeathed to the same legatee in one and the same instrument
are’ presumed to be substitutional.

In all cases such substitutional gifts are subject to all the inci-
dents, conditions, and limitations attaching fo the original legacy
or legacies, unless there is something in the words used, or the
circumstances attending the substitution to the contrary.” Thus

65In re Zeile, 74 Cal. 125, 15 Pac. 69 Dickinson v. Overton, 57 N. J.

455; Manifold’s Appeal, 126 Pa. St.
508, 19 Atl. 42.

662 Roper, Legacies, 999; Wain-
wright v. Tuckerman, 120 Mass. 232;
Stultz v. Kiser, 37 N. Car. 538; Mani-
fold’s Appeal, 126 Pa. St. 508, 19
Atl. 42,

67In re De Laveaga’s Estate, 119
Cal. 651, 51 Pac. 1074.

68 Graves v. Mitchell, 90 Wis. 306,
63 N. W. 271.

Eq. 26, 41 Atl. 949; De Witt v.
Yates, 10 Johns. (N. Y.) 156, 6 Am.
Dec. 326; Brennan v. Mogan, 6 Ir.
Ch. 126.

70 Mason v. Smith, 49 Ala. 71;
Herzog v. Title Guarantee & Trust
Co., 177 N. Y. 86, 69 N. E. 283, 67 L.
R. A. 146; Thompson v. Churchill, 60
Vt. 371; Leacroft v. Maynard, 3 Bro.
Ch, 233,
§ 143 WILLS 126

the substitutional gift abates in the same order as the original
if the estate is insufficient to pay all the legacies in full.” Where
a substitutional legacy is made a charge on a specific fund, it
is payable out of the same fund as the original gift. Where,
however, a subsequent gift is not properly substitutional, but is
made to take the place of a gift that has failed or been revoked,
it will not be presumed that such subsequent gift was upon the
same conditions as the gift that failed or was revoked."* The
testator may manifest his intention to substitute a second gift
for the first by the use of the expression “instead thereof,” or
“in lieu thereof,’’’® or “in place and instead thereof.’

§ 143. Residuary devises and legacies.—A residuary de-
vise or legacy is a gift of all the rest, residue or remainder of
the testator’s property generally or of a particular kind after
certain specific or general legacies are discharged. No particular
mode of expression is necessary to constitute such devise or
legacy; it being sufficient if the language used clearly expresses
the testator’s intention that the surplus of the estate, after pay-
ment of debts and legacies, shall go to the beneficiary desig-
nated.7* The expression commonly used to create a residuary
devise or legacy is “give, devise, and bequeath all the rest, residue,
and remainder,” and is included in a clause at the end of the
will.” But the position of the residuary clause in the will is of
no importance except as it bears on the intention of the testator.*°

Where it is desired to pass after-acquired property by the
residuary clause the expression “whether real or personal owned
by me at the time of my death,” is generally included, and some-

‘

72Tn re Leveaga’s Estate, 119 Cal. St. 23, 34 Atl. 329. See post, ch. 30,

651, 51 Pac. 1074. § 679.
73 Hollyday v. Hollyday, 74 Md. 78In re Granniss’ Estate, 142 Cal.
458, 22 Atl. 136. 1, 75 Pac. 324; Giddings v. Giddings,
74In re Fry’s Estate, 163 Pa. St. 65 Conn. 149, 32 Atl. 334, 48 Am. St.
30, 29 Atl. 699. 192; Ma Gee v. Doe ex dem. Alba, 9

75 Hollyday v. Hollyday, 74 Md. Fla. 382; Camp v. Vaughn, 119 Ga.
458, 22 Atl 136; In re Freme’s 131, 46 S. E. 79; Henzie v. Henzie,

Estate, 2 Ch. 778. 45 Tex. Civ. App. 297, 100 S. W. 803.
76 Hard v. Ashley, 117 N. Y. 606, 79 See post, ch. 30, § 688.
23 N. E. 177. 80 Morton v. Woodbury, 153 N. Y.

77In re Whelen’s Estate, 175 Pa. 243, 47 N. E. 283.
127 KINDS AND CHARACTER OF DEVISES AND LEGACIES § 143

times after-acquired property is specifically referred to.** It is
generally held that a power of appointment is sufficiently exe-
cuted in a general devise or bequest of all the testator’s estate
by a residuary clause,** but a reference to the power is always
advisable.** Where it is desired to give a life interest in a resi-
due, it is advisable to establish a trust and appoint a trustee.**

A general residuary clause includes in its gift any property or
interest in the will which, for any reason, eventually falls into
the general residue. It will include legacies which were origi-
nally void, either because the disposition was illegal, or because
for any other reason it was impossible that it should take effect ;
and it includes such legacies as may lapse by events subsequent
to the making of the will. It operates to transfer to the residu-
ary legatee such portion of his property as the testator has not
perfectly disposed of.**

81 See post, ch. 11, § 206. 84 See post, ch. 30, § 941.
82 Armory v. Meredith, 7 Allen 85 Lamb v. Lamb, 131 N. Y. 227, 30
(Mass.) 397. N. E. 133.

83 Garman v. Glass, 197 Pa. 101, 46
Atl. 923.
CHAPTER IX

FORM AND LANGUAGE OF WILLS

SECTION SECTION
150. Form of instrument. 155. Language in which a will may be
151. Separate instruments and sepa- written.
rate sheets of paper. 156. Alterations and additions.
152. Incorporation by reference. 157. Grammatical requirements.
153. Incomplete and uncertain instru- 158. The use of technical words.
ments. 159, Punctuation and capitalization.

154. Repugnancy.

§ 150. Form of instrument.—‘“The law has not made
requisite, to the validity of a will, that it should assume any
particular form, or be couched in language technically appro-
priate to its testamentary character. It is sufficient that the
instrument, however irregular in form or inartificial in expres-
sion, discloses the intention of the maker respecting the posthu-
mous destination of his property; and, if this appear to be the
nature of its contents, any contrary title or designation which he
may have given to it will be disregarded.”* Statutes generally
provide that the will must be in writing, but they do not always
attempt to prescribe what form the writing shall assume. A
provision that the instrument shall be in writing is usually com-
plied with if the instrument is typewritten, printed, engraved,
lithographed, or by writing made with a lead pencil? A will
partly printed and partly written has been held a sufficient com-
pliance with the statute requiring wills to be written.*

It would seem that it will be sufficient if the writing is made
on any material capable of retaining the impression. But a will

11 Jarman Wills, 19. Myers v. Vanderbelt, 84 Pa. St. 510,
2 Philbrick v. Spangler, 15 La. Ann. 24 Am. Rep. 227.
46; In re Tomlinson’s Estate, 133 Pa. 3 Roush v. Wenzel, 15 Ohio C. C.
St. 245, 19 Atl. 482, 19 Am. St. 637; 133, 8 Ohio C. D. 141.

128
129 FORM AND LANGUAGE § 151
has been denied probate because written on a slate.* In Georgia
and New Mexico, however, real property may be devised by an
oral will.®

It is not necessary that the instrument be designated a will.
It will be admitted to probate as a will if it is intended to oper-
ate after the death of the maker, and it and the property con-
veyed remain under the maker’s control, although the form be
that of a contract or a deed.® It has been held, however, that an
instrument may be testamentary in part and a contract in part.’
Also an instrument in the form of a letter showing a testa-
mentary intent may be probated as a will.* Likewise it has been
held that an instrument executed with the formalities of a will
may be admitted to probate as such although it be in the form
of an acknowledgment of indebtedness,® an assignment,’® an
indorsement,™* a bank deposit,** or a promissory note.¥

§ 151. Separate instruments and separate sheets of paper.
—wWhere a person executes two or more testamentary instru-
ments at the same time, they will be treated as constituting one
will, and will be all probated together as one instrument.** Also
where the testator executes a second will without revoking the

4Reed v. Woodward, 11 Phil.
(Pa.) 541. But see Ellis v. Secor, 31

297; Morrell v. Dickey, 1 Johns. Ch.
(CN. Y.) 153,

Mich: 185, 18 Am. Rep. 178.

5 Georgia: Code (1911), § 3928;
New Mexico: Ann. Stats. (1915),
§ 5861.

6 Jackson v. Rowell, 87 Ala. 685, 6
So. 95, 4 L. R. A. 637; Smith v.
Holden, 58 Kans. 535, 50 Pac. 447;
Miller v. Holt, 68 Mo. 584; Gage v.
Gage, 12 N. H. 371.

7 Gomez v. Higgins,
30 So. 417; Powers v.
Kans. 339, 67 Pac. 820.

8 Anderson v. Pryor, 10 Sm. & M.
(Miss.) 620; Barney v. Hays, 11
Mont. 571, 29 Pac. 282, 28 Am. St.
495; Cowley v. Knapp, 42 N. J. L.

130 Ala. 493,
Scharling, 64

9—THomp, WILLS.

®Beard’s Succession, 14 La. Ann.
121.

10 Morrison v. Bartlett, 148 Ky.
833, 147 S. W. 761, 41 L. R. A. (N.
S.) .39; Robinson v. Brewster, 140
Til, 649, 30 N. E. 683, 33 Am. St. 265.

11Hunt v. Hunt, 4 N. H. 434, 17
Am. Dec. 434.

12In re Armstrong’s Estate, 2 Pa.
Co. Ct. 166.

13 Jackson v. Jackson’s Admr., 6
Dana (Ky.) 257. :

14 Hunt v. Hunt, 4 Gray (Mass.)
190; Crossman v. Crossman, 95 N. Y.
145; In re Grubb’s Estate, 174 Pa. St.
187, 34 Atl. 573.
§ 151 WILLS 130
first, the two instruments may be probated together and treated
as one will, so far as they are not inconsistent.”

The validity of an instrument as a will is unaffected because
of the fact that it is composed of or written on several sheets
of paper, if they are connected and coherent in sense and by
an adaptation of the several parts.*° Physical attachment of the
separate parts by mechanical, chemical, or other means, is not
required,*’ but all the sheets should be securely bound together
before the will is executed, that there may be no doubt as to what
is a part of it; and, as a further precaution against a question
as to any sheet being fraudulently removed and another substi-
tuted, it is advisable to have the testator sign each sheet. The
law contemplates but one signature and one attestation, and
when the signature and attestation are found in the usual, natu-
ral place, they must be treated as unmeaning, vain and futile,
or referred to all the sheets containing writing, which, by their
own internal sense, coherency, and consistency, make the instru-
ment in its entirety.**

It has been held that if two sheets of paper are written at the
same time, and both are read to the testator as his will, and are
present at the time of the execution, and the papers themselves
bear intrinsic evidence that, while separate, they were tacked
together in the mind of the testator, then they are good and valid
without any physical joining together. The will is not invali-
dated because of the fact that one sheet contains nothing but

the testator’s signature.*? The

15 Whitney v. Hanington, 36 Colo.
407, 85 Pac. 84; Parnell v. Thompson,
81 Kans. 119, 105 Pac. 502, 33 L. R.
A. (N. S.) 685n; Fletcher v. Gates
(Tex. Civ. App.), 63 S. W. 937;
Gordon v. Whitlock, 92 Va. 722, 24
S. E. 342.

16 Barnewall v. Murrell, 108 Ala.
366, 18 So. 831; Palmer v. Owen, 229
Til, 115, 82 N. E. 275; Ela v. Ed-
wards, 16 Gray (Mass.) 91; Taylor
v. Wardlaw, 3 Dem. Surr. (N. Y.) 48.

17 Sellards v. Kirby, 82 Kans. 291,

form in which a will is found

108 Pac. 73, 136 Am. St. 110, 28 L. R.
A. (N. S.) 270, 20 Ann. Cas. 214; In
re Fitzgerald, 33 Misc. 325, 68 N. Y.
S. 632; Wikoff’s Appeal, 15 Pa. St.
281, 53 Am. Dec. 597,

18 Barnewall v. Murrell, 108 Ala.
366, 18 So. 831; Wikoff’s Appeal, 15
Pa. St. 281, 53 Am. Dec. 597.

19Tn re Swaim’s Will, 162 N. Car.
213, 78 S. E. 72, Ann. Cas. 1915 A,
1207.

20 Cook v. Lambert, 3 Sw. & Tr. 46,
32 L. J. P. 93.
131 FORM AND LANGUAGE § 152
at the death of the testator is presumed to be the same as when
it was executed,”* but this presumption may be rebutted, and it
may be shown that one or more of the sheets have been de-
stroyed, rewritten or transposed.** Where a will duly executed
mentions certain other: papers which the testator intended to
attach to and make a part of the will, the absence of such papers

invalidates the will.?°

§ 152. Incorporation by reference—If a will duly ex-
ecuted and witnéssed according to the requirements of the stat-
ute, incorporates into itself by reference any document or paper
not so executed and witnessed, whether such paper referred to
be in the form of a will or codicil, or of a deed or indenture, or
of a mere list or memorandum, the paper so referred to, if it
was in existence at the time of the execution of the will, and is
identified by clear and satisfactory proof as the paper referred
to therein, will take effect as part of the will and be admitted to
probate as such.** It has been held in New Jersey and New
York, however, that a testamentary instrument improperly exe-
cuted can not be made a part of a will or codicil by mere refer-
ence thereto.” The rule also seems to have been questioned in
Connecticut.”*

Before an extrinsic document can be incorporated by refer-
ence thereto, a description of it in the will must be so clear,

21 Barnewall v. Murrell, 108 Ala.
366, 18 So. 831.

22 Varnon v. Varnon, 67 Mo. App.
534.

23 St. John’s Parish v. Bostwick, 8
App. D. C. 452. :

24In re Willey’s Estate, 128 Cal. 1,
60 Pac. 471; Phelps v. Robbins, 40
Conn. 250; Fickle v. Snepp, 97 Ind.
289, 49 Am. Rep. 449; Hughes v.
Bent, 118 Ky. 609, 81 S. W. 931, 26
Ky. L. 453; Hall v. Hill, 6 La. Ann.
745; Dexter v. Harvard College, 176
Mass. 192, 57 N. E. 371; In re Bres-
ler, 155 Mich. 567, 119 N. W. 1104;
Harvey v. Chouteau, 14 Mo. 587, 55

Am, Dec. 120; Chambers v. McDan-
iel, 28 N. Car. 226; Gerrish v. Ger-
rish, 8 Ore. 351, 34 Am. Rep. 585;
In re McKibbin, 207 Pa. 1, 56 Atl.
62; Johnson v, Clarkson, 3 Rich. Eq.
(S. Car.) 305; Pollock v. Glassell, 2
Grat. (Va.) 439; Dickinson v. Sti-
dolph, 11 C. B. (N. S.) 341, 103 E.
C. L. 341.

25 Hartwell v. Martin, 71 N. J. Eq.
157, 63 Atl. 754; Booth v. Baptist
Church, 126 N. Y. 215, 28 N. E. 238.

26 Bryan’s Appeal, 77 Conn. 240, 58
Atl. 748, 68 L. R. A. 353, 107 Am. St.
34; Phelps v. Robbins, 40 Conn. 250.
132

§ 153 WILLS

explicit and unambiguous as to leave its identity free from doubt.
The identification of the paper must be had from the descrip-
tion given in the will itself; otherwise the will is not wholly in
writing as required by law, but rests partly upon a writing and
partly in parol.?” It has been held, however, that much less than
the above is sufficient,?* and. parol evidence has been admitted
to identify the writing referred to.”

Such separate writing can be given effect only to the extent
that it appears from the contents of the will to have been the
intention of the testator.*° The separate instrument must be
shown to be the identical one referred to in the will;** and that
it was in existence before the will was executed.”

§ 153. Incomplete and uncertain instruments.—The pre-
sumption of law is against every testamentary paper not actually
executed by the testator, and a number of cases hold that where
the testator intended some further act to complete the instru-
ment, it is not a will.*? Thus where a paper is unfinished as well
as unexecuted, as where it is just begun, and contains only a
few clauses and bequests, its being unfinished and unexecuted
must be accounted for, and it must also be proved to express the
testator’s intention in order to repel the legal presumption against
its validity. It must be clearly made to appear, upon a just view
of all the facts and circumstances of the case, that the testator
had come to a final resolution in respect to it as far as it goes.**
But if the paper be complete in all other respects, the pre-
sumption against the instrument is slight and feeble and one
comparatively easily repelled. Where the provisions written are

27In re Young’s Estate, 123 Cal.
337, 55 Pac. 1011; Chambers v. Mc-
Daniel, 28 N. Car. 226; Phelps v.
Robbins, 40 Conn. 250.

28 Fickle v. Snepp, 97 Ind. 289, 49
Am. Rep. 449.

29 Webb v. Day, 2 Dem. Surr. (N.
Y.) 459; Allen v. Maddock, 11 Moore
P. C. 427.

30 Hunt v. Evans, 134 Ill. 496, 25 N.
E. 579, 11 L. R. A. 185.

31 Fickle v. Snepp, 97 Ind. 289, 49

Am. Rep. 449; Baker’s Appeal, 107
Pa. ‘St. 381, 52 Am. Rep. 478.

32In re Shillaber’s Estate, 74 Cal.
144, 15 Pac. 453, 5 Am. St. 433;
Thayer v. Wellington, 9 Mass. 283, 85
Am. Dec. 753; Magoohan’s Appeal,
117 Pa. St. 238, 14 Atl. 816, 2 Am. St.
660.

33 Tabler v. Tabler, 62 Md. 601;
Murry v. Murry, 6 Watts (Pa.) 353.

34 Orgain v. Irvine, 100 Tenn. 193,
43S. W. 768.
133 FORM AND LANGUAGE § 154

complete and embody the last intention of the testator the instru-
ment will be operative as a will so far as it goes.*®

Where the provisions of a will in each and all of its items
are, when considered as an entirety, so obscure that, with the aid
of all light that can be shed on it by extraneous circumstances,
no definite idea can be formed of the intention of the testator
in any of the dispositions he has attempted to make, it will be
void for uncertainty.*® Though the privilege of making a will
is one highly respected by the law, yet, as the law itself makes
a just and equitable disposition of the property of an intestate
among. the natural objects of his bounty, it should prevail over
the provisions of any attempted dispositions that are so obscure
that the general scheme and purpose of the testator can not be
ascertained with any reasonable certainty.*7 The cases are rare.
in which wills are so defective and confused as to be incapable
of being brought into harmony and intelligent meaning, and it
is only in extreme cases that the whole will will be declared void
for uncertainty,®* regardless of how uncertain or ambiguous par-
ticular devises or bequests may be.

§ 154. Repugnancy.—Great care should be exercised to
avoid discrepancies and contradictions, and before the will is
executed it should be closely scrutinized to see if all its parts are
consistent and harmonious. Where the testator in one clause
of his will makes a gift of property to a beneficiary and his heirs,
and in a subsequent clause of the same will makes a gift of the
same property to the same beneficiary for his life, it is impos-
sible for a court to reconcile such clauses; for, as the intention
which is to be sought after is that which the testator had at the
moment of the execution of the will, it will be impossible to
ascertain what that intention was where it is expressed in lan-
guage so diverse. If the clauses are irreconcilably inconsistent
and repugnant the court will apply the principle that the earlier

85 Frierson v. Beall, 7 Ga. 438. 37 Cope v. Cope, 45 Ohio St. 464, 15
36 Shaffer’s Succession, 50 La. Ann. N. E. 206.
601, 23 So. 739; Cope v. Cope, 45 38 McMurtrie v. McMurtrie, 15 N.
Ohio St. 464, 15 N. E. 206; Wooton J. L. 276..
v. Redd, 12 Grat. (Va.) 196. ‘
§ 155 134

WILLS
clause in point of local position must be rejected and the later
clause shall prevail as expressing a later testamentary inten-
tion.®°

The above principle is based on the presumption that the
intention of the testator has changed during the preparation of
the will, and that the subsequent clause for that reason repre-
sents a later intention in time, as it does in point of locality in
the instrument, and hence is the last will. If the subsequent
clause is vague and unintelligible, and the prior clause is clear
and intelligible, the prior clause will not be destroyed, cut down
or limited by the subsequent clause.*°

It is a familiar rule of construction that no portion of a will
is to be rejected for repugnancy except from necessity; but that
every portion will be upheld, if possible, and to effect this the
order of the bequests will be reversed.** Where repugnancy ap-
pears in a will parol evidence is admissible to show the situation
of the parties, their surroundings and circumstances, and to iden-
tify the property devised, and if, after consideration of such
evidence, the court is unable from the face of the will, to deter-
mine the testator’s intention, such will must be held void.”

§ 155. Language in which a will may be written—It
seems to be well settled that the testator may put his will in any
language which he understands, or in any language not under-
stood by him if so explained that he understands its import be-
fore executing the will.*® It is not necessary that the will be

391 Jarman Wills (6th Am. ed.),
473; Flinn v. Davis, 18 Ala. 132;
Mansfield v. Shelton, 67 Conn. 391,
35 Atl. 271, 52 Am. St. 285; Robert
v. West, 15 Ga. 122; Smith v. Curry,
52 Ill. App. 227; Holdefer v. Teifel,
51 Ind. 343; Heidlebaugh v. Wagner,
72 Iowa 601, 34 N. W. 439; Good’s
Succession, 45 La. Ann. 1392, 14 So.
252; Watson v. Blackwood, 50 Miss.
15; Van Nostrand v. Moor, 52 N. Y.
12; Davis v. Boggs, 20 Ohio St. 550;

Hiestand v. Meyer, 150 Pa. St. 501,
24 Atl. 749.

40 Hovey v. Walbank, 100 Cal. 192,
34 Pac. 650; Howe v. Howe, 152 Il.
252, 38 N. E. 1083; Mitchell v.
Mitchell, 143 Ind. 113, 42 N. E. 465.

41 Bailey v. Sanger, 108 Ind. 264, 9
N. E. 159.

42 Tobin v. Tobin, 163 Ind. 240, 69
N. E. 440.

43 In re Walter’s Will, 64 Wis. 487,
25 N. W. 538, 54 Am. Rep. 640.
135 FORM AND LANGUAGE § 156

written in the English language.** The testator is presumed to
understand the contents of his will, although it is not written in
a language which he understands;** but some courts have re-
fused to indulge this presumption, and have denied probate of
wills written in language which the testator did not understand.*°

In drafting a will in the English language for a foreign-born
testator who has an imperfect knowledge of that language, he
should be permitted to read a properly made written translation
in his native tongue. And if this is not procurable, an oral trans-
lation should be made to him by some one in whom he has con-
fidence.*7 The fact that the person making the translation is
a beneficiary under the will does not raise a presumption unfa-
vorable to the will. *®

§ 156. Alterations and additions.—Alterations and addi-
tions made prior to the execution of the will and noted in the
attestation clause, are valid and effective.*® If the will would
be incomplete without the alterations and additions they are pre-
sumed to have been made before execution, although such fact
was not noted in the attestation clause. But if the will is com-
plete without them they are presumed, in the absence of evidence,
to have been made after the execution of the will.°° Immaterial
alterations made after the execution of the will are generally
held not to revoke the will or to impair its validity.°* Where
two provisions are separable and enforcible independently of
each other, an alteration of one does not affect the validity of
the other.” a

44In re Cliff’s Trusts, 2 Ch. Div. 50Jarman Wills (6th ed. Big.),

229. *117,
45 Hoshauer’ v. Hoshauer, 26 Pa. 51 McIntire v. McIntire, 162 U. S.
St. 404, 2 283, 40 L. ed. 1009, 16 Sup. Ct..814;
46 Miltenberger v. Miltenberger, 78 Wheeler v. Bent, 7 Pick. (Mass.) 61;
Mo. 27, 8 Mo. App. 306. In re Stickney, 41 Misc. 70, 83 N. Y.
47In re Walter’s Will, 64 Wis. 487, S. 650. But see In re Wilson, 8 Wis.
25 N. W. 538, 54 Am. Rep. 640. 171.
48 Goerke v. Goerke, 80 Wis. 516, 52In re Brown, 1 B. Mon. (Ky.)
50 N. W. 345. 56, 35 Am. Dec. 174; Southworth v.

49 Holman v. Riddle, 8 Ohio St. 384; Southworth, 173 Mo. 59, 73 S. W.
In re Morrow’s Estate, 204 Pa. 479, 129.
54 Atl. 313.
WILLS 136

§ tb7
A re-execution of the instrument, directly on the same writing,
or indirectly by incorporating it in a codicil by reference, oper-
ates to incorporate and make operative any alterations in and
additions to the will made after it was first executed.**

Great care should be exercised in making alterations in wills.
The better practice is to rewrite the entire instrument, but if this
is not done, at least a reference should be made in the attestation
clause concerning the alteration.

§ 157. Grammatical requirements.—While the terms of a
will are not, of necessity, to be construed technically and with
strict reference to grammatical accuracy,°* yet the importance
of a correct use of language should not be overlooked. “It may
be said generally that in considering the obscure provisions
which are often found in wills little help is to be obtained from
precedents.’*° “The grammatical construction, or the order of
particular sentences, is never allowed to defeat the general inten-
tion of the testator, as clearly manifested by the provisions of
the will taken as a whole.”

The general rule is that the testator’s intention is only to be
ascertained from the language of the will, and the courts will
supply words only when necessary to carry out the apparent
intention of the testator as gathered from the whole will.®”

It is the duty of the court to ascertain the intention of the
testator from the words he has used and to ascertain and give
effect to the legal consequences of that intention when ascer-
tained.** “In construing a will, the words and expressions used
are to be taken in their ordinary, proper, and grammatical sense;
unless, upon so reading them in connection with the entire will,

53 Burge v. Hamilton, 72 Ga. 568;
Hubbard v. Hubbard, 198 Ill. 621, 64
N. E. 1038; Shaw v. Camp, 163 Ill.
144, 45 N. E, 211, 36 L. R, A. 112; In
re Gilmor’s Estate, 154 Pa. St. 523,
26 Atl. 614, 35 Am. St. 855.

54 Metcalf v. Framingham Parish,
128 Mass. 370; Thompson v. Thomp-
son, 4 Ohio St. 333.

55JIn re Croft, 162 Mass. 22, 26, 37
N. E. 784.

56 Metcalf v. Framingham Parish,
128 Mass. 370.

57 Butterfield v. Hamant, 105 Mass.
338.

58 Colton v. Colton, 127 U. S. 310,
32 L. ed. 143, 8 Sup. Ct. 1164; Her-
zog v. Title Guarantee & Trust Co.,
177 N. Y. 86, 69 N, E. 283, 67 L. R.
A. 146.
137 FORM AND LANGUAGE § 158

or upon applying them to the facts of the case, an ambiguity or
difficulty of construction, in the opinion of the court, arises; in
which case the primary meaning of the words may be modified,
extended, or abridged, and words and expressions supplied or
rejected, in accordance with the presumed intention, so far as to
remove or avoid the difficulty or ambiguity in question, but no
further. * * * In every case the words used must be capable
of bearing the meaning sought to be put upon them.”* The
court may alter the language of a will where it is evident that
the wrong word has been employed by the testator through mere
inadvertence ;° or where, by reason of bad grammar he has failed
to express his apparent intention ;°* or where the language em-
ployed, though grammatically correct, does not express his real
meaning ;* or where the language employed is incorrect when
applied to the objects or subjects of a devise.

But while the courts are at liberty to mold the language into
such shape as will, upon the whole, best show the intention of
the testator, this does not justify indifference in the use of lan-
guage, either grammatically or ungrammatically. Every pro-
vision of the will should be so molded as to convey no other
meaning than that intended by the testator.

§ 158. The use of technical words.—In composing a will
the imperfection of language itself is to be considered. Words,
being the only method of expressing the testator’s intention, may
be ambiguous or uncertain in their meaning. Their proper use
requires education and experience, and when technical terms are
employed, as they must frequently be, an adequate knowledge of
their meaning and use is essential. The use of unusual technical
expressions should be avoided wherever practicable, and where
their use can not be dispensed with, their force and effect should

59 Hawkins Wills (2d ed.) 2. 61 Slingluff v. Johns, 87 Md. 273,
60 Johnson v. Johnson, 128 Ind. 93, 39 Atl. 872; Horwitz v. Norris, 60
27 N. E. 340; Den ex. dem. McMur- Pa. St. 261.
trie v. McMurtrie, 15 N. J. L. 276; 62 Carter v. Bloodgood, 3 Sandf.
Pond v. Bergh, 10 Paige Ch. (N. Y.) (N. Y.) 293.
140; Tayloe v. Johnson, 63 N. Car. 63In re Groom, 66 L. J. Ch. 778,
381. 77 «LL. T. 154,
§ 159 WILLS 138

be fully explained to the testator. It is advisable wherever prac-
ticable to adopt the plainest and least complicated language, pro-
vided always that it fully expresses the intention of the testator.
- But the meaning of ordinary words often leads to a result so
foreign to the testator’s intention as to ground an inference that
his real meaning has not been understood, that although the cor-
rect meaning of his language is clear enough, the meaning in
which he used it is something different.

“Where a testator uses technical words, he is presumed to
employ them in their legal sense unless the context clearly indi-
cates the contrary.”** “Words, in general, are to be taken in
their ordinary and grammatical sense, unless a clear intention
to use them in another can be collected.”** Technical words do
not have such a fixed legal meaning that a gift will faii because
the testator does not use the words descriptive of the gift or act
of giving with technical accuracy.*° In seeking the intention of
the testator courts will presume, in the absence of any language
in the will repelling such presumption, that the words and ex-
pressions used were employed in the light of the settled meaning
which the law attaches to such words;* and technical words will
be given their legal effect unless, from subsequent inconsistent
words, it is very clear that the testator meant otherwise, and the
law will even supply words where to do so does not oppose the
manifest intention of the testator.®

§ 159. Punctuation and capitalization—While weight is
to be given to words rather than to punctuation in construing a
will, yet if punctuation be properly inserted by the testator it
will be a great aid to clearness. The court will take into con-
sideration such marks as parentheses, stops, capital letters, and
the like, although their office is secondary only. Punctuation

642 Jarman Wills (6th Am. ed.) 74 N. E. 980; Clore v. Smith, 45 Ind.

772. App. 340, 90 N. E. 917.
652 Jarman Wills (6th Am. ed.) 68 Fowler v. Duhme, 143 Ind. 248,
772. 42 N. E. 623; Coulter v. Crawfords-

66 White v. Massachusetts Inst. of ville Trust Co. 45 Ind. App. 64, 88
Technology, 171 Mass. 84, 50 N. E. N. E. 865.

512. 69 Lewishon v. Henry, 179 N. Y,
67 Taylor v. Stephens, 165 Ind. 200, 352, 72 N. E. 239,
139 FORM AND LANGUAGE § 159

may be resorted to when no other means can be found of solving
an ambiguity; but not in cases where no real ambiguity exists,
except what punctuation itself creates.”? “Punctuation is never
controlling. The intention is always to be ascertained exclusively
from the words employed by the testator, viewed in the light
afforded by the context. Punctuation or lack of punctuation is
not material and may be omitted or supplied by the court.”™

It has been held that the natural sense in which words are
used always prevails over both punctuation and capitals.7* Punc-
tuation and capitals are regarded as such uncertain aids in the
interpretation of written instruments as to be resorted to only
when all other means fail. And where the punctuation is in ac-
cord with the testator’s intention, the use of capitals in the mid-
dle of a sentence has been regarded as unintentional.* The
court will often ignore the punctuation which the testator has
employed in order to give effect to the intention of the testator
as clearly shown from the whole will.”

70 Arcularius v. Sweet, 25 Barb. 73 Kinkele v. Wilson, 151 N. Y. 269,
(N. Y.) 403. 45 N. E. 869.
711 Underhill Wills, § 367. 74 Eberhardt v. Perolin, 49 N. J.
72In re Turner’s Will, 208 N. Y. Eq. 570, 25 Atl. 510; Kinkele v. Wil-
261, 101 N. E. 905, Ann. Cas. 1914.D, son, 151 N. Y. 269, 45 N. E. 869.
245. 75 Black v. Herring, 79 Md. 146,
28 Atl. 1063,
CHAPTER X

DESIGNATING BENEFICIARIES AND THEIR SHARES

SECTION SECTION
165. Certainty of designation. 178. Nephews and nieces.
166. Designating the beneficiary by 179. Cousins.
name. 180. Family.
167. Designating beneficiary by de- 181. Relatives or relations.
scription. 182. Servants and employés.
168. Gift to more than one person. 183, Creditors.
169. Heirs and lawful heirs. 184. Debtors.
170. Next of kin. 185. Corporations and associations
171. Representatives, legal representa- generally.
tives, and personal representa- 186. Unincorporated societies and as-
tives. semblages.
172. Husband and wife. 187. Charitable corporations or asso-
173. Issue, lawful issue, legitimate is- ciations.
sue, immediate issue, and issue 188, Educational objects.
of the body. 189. Religious societies and organiza-
174. Descendants. tions.
175. Offspring. 190. Class in general.

176. Children, grandchildren, adopted 191. Language denoting gift to class.
children, step-children, illegiti- 192. Time of determination of class.
mate children and children en 193. Persons included in gift to class.
ventre sa mere. 194, Shares or portions in general.

177. Brothers and sisters. 195. Per capita and per stirpes.

§ 165. Certainty of designation.—To entitle a beneficiary
to take under a will he must be named therein or described
with such certainty that he may be distinguished from every"
other person.* But where the beneficiary is inaccurately named
or described, so that there is no one who fully answers the name
or description, the court will, if possible, gather from the con-
tents of the will and the surrounding circumstances who was

1Drane v. Beall, 21 Ga. 21; La- Assn. v. Lett, 42 N. J. Eq. 43, 6 Atl.
grange County v. Rogers, 55 Ind. 297; 280; White v. Attorney-General, 39
Rose v. Eaton, 77 Mich. 247, 43 N. N. Car. 19, 44 Am. Dec. 92.
W. 972; American Dramatic Fund

140
141 DESIGNATING BENEFICIARIES AND THEIR SHARES § 166

meant.” In the effort to ascertain whom the testator meant it is
proper to consider the circumstances existing at the time the will
was made.® “It has long been settled that when in a will the name
or description of a legatee is erroneous, the legacy shall not fail
of effect if it can be ascertained beyond reasonable doubt, by
legal evidence, whom the testator intended to name or describe.
And this intention may be aseertained either by the context of
the will or by parol evidence, as to all material facts relating to
the person who claims the legacy, and to the circumstances of
the testator and of his family and affairs.’*

Where a devise is made to a charitable corporation it is imma-
terial how uncertain the beneficiaries or objects are, if the court,
by a true construction of the instrument, has power to appoint
trustees to exercise the discretion or power of making the bene-
ficiaries as certain as the nature of the trust requires them to be.”

§ 166. Designating the beneficiary by name.—Great care
should be taken to see that the name of the beneficiary is abso-
lutely correct, not only in the case of individuals, but in that of
corporations, associations, organizations, and societies. A desig-
nation of the beneficiary by his popular name® or nickname’ is
sufficient if it can be definitely ascertained whom the testator
meant.®

There is no rule in the construction of wills which prefers a
name to a description. Often a correct name is given, coupled
with an erroneous description. There is a person of the name
given, but no one to whom the description applies. In such case
the person named is the beneficiary. On the other hand, if there
is no one who answers to the name, but there is a person who
answers to the description, the person described is the beneficiary.

2 American Dramatic Fund Assn. v. 6 Atterbury v. Stafford, 58 N. J.
Lett, 42 N. J. Eq. 43, 6 Atl. 280. Eq. 186, 44 Atl. 160.

3 Mason v. Massachusetts General 7 Beatty v. Cory Universalist Soc.,
Hospital, 207 Mass. 419, 93 N. E. 637. 39 N. J. Eq. 452.

4Thayer v. Boston, 15 Gray 8 Estep v. Mackey, 52 Md. 592; Doe
(Mass.) 347, 348. ex. dem. Davis v. Atkinson, 63 N,

5 McDonald v. Shaw, 81 Ark. 235, Car. 210.
98 S. W. 952,
§ 167 WILLS 142
Great difficulty will arise -where a person is designated by name
and description, and there is no one who answers both name
and description, but there is some one who answers the name
and some one who answers the description. In the latter case
the person intended must be ascertained by a consideration of
all the circumstances of the case.? A description of beneficiaries
by such words as “children,” “heirs,” etc., should be avoided
wherever it is possible to designate them by their proper names.
Misnomer is especially frequent in gifts to charitable corpora-
tions. As the real name of such corporation is seldom used and
never known to the public at large, many testators do not feel
the need of giving the real name of the proposed beneficiary.
Their neglect in this matter has given rise to much litigation.
The cases are uniform in holding that where such a corpora-
tion is indicated in a will by an erroneous name, such a mistake
will not avoid the gift if it is possible by means of the name
used, or by parol evidence, to identify the corporation intended
as beneficiary with sufficient certainty.*° Thus where the name
used is not that of any existing corporation, but closely resem-
bles the name of a corporation engaged in a similar work, the gift
will be held a gift to such corporation if the evidence indicates
that such was the intention of the testator.*1 A gift to a cor-
poration is not rendered void by a mistake in naming the cor-
poration, if it can be identified by a description of its buildings.”

§ 167. Designating beneficiary by description.—It is not
necessary that the testator, in his will, name the legatee or devisee,
in order to give effect to the gift. It is sufficient if he is so

29In re Donnellan’s Estate, 164 Cal.
14, 127 Pac. 166.

10 Reilly v. Union Protestant In-
firmary, 87 Md. 664, 40 Atl. 894;
Moore v. Moore, 50 N. J. Eq. 554, 25
Atl. 403; Elwell v. Universalist Gen-
eral Convention, 76 Tex. 514, 13 S.
W. 552.

11 Russell v. Allen, 107 U. S. 163,
27 L. ed. 397, 2 Sup. Ct. 327; Bristol
v. Ontario Orphan Asylum, 60 Conn.
472, 22 Atl. 848; Women’s Missionary

Soc. v. Mead, 131 Ill. 33, 23 N. E.
603; Chambers v. Higgins, 49 S. W.
436, 20 Ky. L. 1425; Straw v. East
Maine Conference, 67 Maine 493;
Reilly v. Union Protestant Infirmary,
87 Md. 664, 40 Atl. 894; Cook v. Uni-
versalist Gen. Convention, 138 Mich.
157, 101 N. W. 217; Newell’s Appeal,
24 Pa. St. 197.

12 Tualatin Acadamy v. Keene, 59
Ore. 496, 117 Pac. 424.
143. DESIGNATING BENEFICIARIES AND THEIR SHARES § 167
described therein as to be ascertained and identified.1* The
right of the testator to designate the beneficiary by description,
instead of by name, has never been questioned; but the descrip-
tion must clearly distinguish the beneficiary from all others.**
But it is not necessary that the beneficiary correspond in all re-
spects to the description, it being held sufficient if he corresponds
thereto in enough particulars to make it reasonably certain that
he was intended and no other person exists who corresponds
sufficiently to the description to raise a doubt as to the identity
of the beneficiary.** A bequest will never be rendered void by
an uncertain description of the beneficiary, if the name and de-
scription used in the will as applied to the facts and circum-
stances proved will identify such person from all others.*°

A devise or bequest will not fail because of the mere inaccu-
racy in the designation of the beneficiary, where the meaning of
the testator can be gathered with reasonable certainty from the
instrument itself, or where the identity of the object of his
bounty can be shown by extrinsic evidence; and such evidence
is always admissible, for the purpose of identifying the benefi-
ciary, where there is uncertainty or ambiguity in the designa-
tion. This rule applies to corporations as well as to individuals,
and to trustees as well as those taking for their own benefit.*”
A beneficiary may be sufficiently designated by his profession or
occupation.** He may also be sufficiently designated by his ful-
filling certain conditions mentioned in the will.*®

13 Dennis v. Holsapple, 148 Ind. well v. General Universalist Conven-

297, 47 N. E. 631, 62 Am. St. 526, 46
L. R. A. 668.

14 Brewster v. McCall, 15 Conn.
274; Cheney v. Selman, 71 Ga. 384;
Howard v. American Peace Soc., 49
Maine 288; Condit v. DeHart, 62 N.
J. L. 78, 40 Atl. 776; Button v. Amer-
ican Tract Soc. 23 Vt. 336.

15 Doughten v. Vandever, 5 Del.
Ch. 51; Women’s &c. Missionary
Soc. v. Mead, 131 Ill. 33, 23 N. E.
603; Reilly v. Union Protestant In-
firmary, 87 Md. 664, 40 Atl. 894;
Smith v. Kimball, 62 N. H. 606; El-

tion, 76 Tex. 514, 13 S. W. 552.

16 Skinner v. Hemenway, 135 Ill.
App. 582.

17J Jarman Wills (6th ed.) 347;
McDonald v. Shaw, 81 Ark. 235, 98
S. W. 952.

18In re Benson’s Estate, 169 Pa.
St. 602, 32 Atl. 654; State v. Smith,
16 Lea (Tenn.) 662.

19 Knowles v. Knowles, 132 Ga. 806,
65 S. E. 128; Baltz v. Muskopf, 34
Ii, App. 625; Dennis v. Holsapple,
148 Ind. 297, 42 N. E. 631, 46 L. R.
A. 168, 62 Am. St. 526; Lehnhoff v.
§ 168 : WILLS 144

§ 168. Gift to more than one person.—Where a gift is to
be made to more than one person, great care should be exercised
to select the words to be used in describing such persons, lest the
share given to each be materially different from that intended.
Thus if a gift of a certain sum is intended to be made to each
of several beneficiaries, instead of to all of them collectively,
care should be taken to so use the word “each” that it will qualify
the operative words of the gift.*° Where the gift is of a certain
amount intended to be divided among a number of beneficiaries,
some word or words denoting division or equality of share should
be used. Thus the words “in equal shares” or “share and share
alike,” should be used where equality of division is intended.”*
If there be one or more persons besides a husband and wife who
are to share in a gift to all, it should appear whether the testator
intended the husband and wife each to take one share or but one
share between them.”

In a gift to two or more persons, words showing the gift to be
in common, or jointly, according as the testator intended, should
be used. When a gift is made direct to the testator’s wife and
child, in the absence of clear language indicating a gift to them
as a body or a class, it will usually be held that they take individu-
ally as tenants in common and that their interest does not depend
upon survivorship.”

§ 169. Heirs and lawful heirs.—The words “heir,” “heirs,”
“lawful heirs” and the like, may be used in wills in two senses.
They may be used to designate beneficiaries, or they may be
used to describe the estate or interest given. When used to
designate beneficiaries they are said to be used as words of pur-
chase, that is, they designate the purchasers or the persons who
are to take the estate. When used to describe the estate or inter-

Theine, 184 Mo. 346, 83 S. W. 469; 21 See post, ch. 10, § 194.
Harriman v. Harriman, 59 N. H. 135; 22 Hall v. Stephens, 65 Mo. 670, 27
Fiester v. Shepard, 26 Hun (N. Y.) Am. Rep. 302.
183; Whitesides v. Whitesides, 28 S. 23In re Russell, 168 N. Y. 169, 61
Car. 325, 5 S. E. 816. N. E, 166.

20 De Nottebeck v. Astor, 13 N. Y.
98.
145 DESIGNATING BENEFICIARIES AND THEIR SHARES § 169
est given, they are said to be used as words of limitation, that is,
they limit or describe the estate or interest given. We are here
concerned only with their use as words of purchase, that is, to
designate beneficiaries. When used as a word of purchase, the
term “heirs,” unless influenced by the context, has reference to the
persons upon whom the law casts the estate immediately upon
the death of the ancestor,** and usually refers to the heirs of the
testator.”*

The above is said to be the primary meaning of the word
“heirs,” when used in a will, and in the absence of qualifying
words or anything in the surrounding circumstances to indicate
a different meaning, the term will be given this primary mean-
ing. The word “heirs”’ is a flexible one, and when used in the
will should be so construed as to give effect to the manifest inten-
tion of the testator.” It may be so restricted by the context as to
mean children or grandchildren.** The word “heirs,” when un-
explained by provisions of the will, has a technical meaning which
may not be departed from, but it will be construed to mean chil-
dren or issue, if the context shows that such was the intention of
the testator.”

Where the word “heir” or “heirs” is accompanied with qualify-
ing words, such as “heirs now living,” “heirs should he have

242 Cooley Bl. Comm. *201; Kellett 256, 11 Atl. 45; McCartney v. Os-

v. Shepard, 139 Ill, 433, 28 N. E. 751,
34 N. E. 254; Lincoln v. Perry, 149
Mass. 368, 21 N. E. 671, 4 L. R. A.

215; In re Ashton’s Estate, 134 Pa..

St. 390, 19 Atl. 699; Johnson v. Bras-
ington, 156 N. Y. 181, 50 N. E. 859.

25 Miller v. Metcalf, 77 Conn. 176,
58 Atl. 743; Abel v. Abel, 201 Pa.
543, 51 Atl. 333.

26 Allen v. Craft, 109 Ind. 476, 9
N. E. 919, 58 Am. Rep. 425; Irvine
v. Newlin, 63 Miss. 192; Woodward
v. James, 115 N. Y. 346, 22 N. E. 150;
In re Harman’s Estate, 135 Pa. St.
441, 19 Atl. 1021; Wallace v. Minor,
86 Va. 550, 10 S. E. 423.

27 Jones v. Lloyd, 33 Ohio St. 572.

28 Anthony v. Anthony, 55 Conn.

10—Tuomp. WILLs.

burn, 118 Ill. 403, 9 N. E. 210; Allen
v. Craft, 109 Ind. 476, 9 N. E. 919,
58 Am. Rep. 425; Haley v. Boston,
108 Mass. 576; Barton v. Tuttle, 62
N. H. 558; Eldridge v. Eldridge, 41
N. J. Eq. 89, 3 Atl. 61; Bunnell v.
Evans, 26 Ohio St. 409; In re Evan’s
Estate, 155 Pa. St. 646, 26 Atl. 739;
Hayne v. Irvine, 25 S. Car. 289;
Franklin v. Franklin, 91 Tenn. 119, 18
S. W. 61. ;

29 Wyman v. Johnson, 68 Ark. 369,
59 S. W. 250; Walsh v. McCutcheon,
71 Conn. 283, 41 Atl. 813; Brown v.
Harmon, 73 Ind. 412; Croom v. Her-
ring, 11 N. Car. 393; King v. Beck,
15 Ohio 559,
§ 170 146

WILLS

any,” “heirs then surviving,’ “heirs resident in the state,” “heirs
other than those hereinbefore mentioned,” and the like, those an-
swering the description will take to the exclusion of the general
heirs.°° The word “heirs,” in its primary sense, means those who
would take by descent, and as dower and curtesy are not by de-
scent but by purchase, neither spouse is entitled to take under a
gift to the heirs of the other.** But where the statute makes any
part of the intestate real estate descend to the surviving spouse,
such spouse is thereby made heir, and entitled, under a gift by
will to the “heirs” of the other, to the same amount as he or she
would be entitled to in case of intestacy.*”

The words “heirs at law” have been construed to mean adopted
children, next of kin, heirs of a particular class or description,
heirs presumptive, heirs apparent, heirs at the date of the will,
heirs at the decease of the testator, or heirs at even a later date,
the construction resting in each particular case upon an ascertain-
ment of the testator’s intention from the words used, from the
context of the instrument, and from the surrounding circum-
stances.** On the other hand it has been held that the word
“heirs” does not include stepchildren, adopted children, or illegit-
imate children, unless the context shows that the testator plainly
intended to include them.**

§ 170. Next of kin.—The term “next of kin” is limited in
legal meaning, as in common use, to blood relations, and it ordi-

30 Graham v. De Yampert, 106 Ala.
279, 17 So. 355; Plummer v. Shep-
herd, 94 Md. 466, 51 Atl. 173; Wood
v. Bullard, 151 Mass. 324, 25 N. E.
67,7 L. R. A. 304; Minot v. Harris,
132 Mass. 528; Snider v. Snider, 160
N. Y. 151, 54 N. E. 676.

31 Ivin’s Appeal, 106 Pa. St. 176, 51
Am, Rep. 516.

82 Richards v. Miller, 62 Ill. 417;
Durbin v. Redman, 140 Ind. 694, 40
N. E. 133; Lavery v. Egan, 143 Mass.
389, 9 N. E. 747; Weston v. Weston,
38 Ohio St. 473.

332 Jarman Wills (6th Am. ed.)

905 et seq.; Anthony v. Anthony, 55
Conn, 256, 11 Atl. 45; Rusing v. Rus-
ing, 25 Ind. 63; Furenes v. Severt-
son, 102 Iowa 322, 71 N. W. 196;
Collins v. Phillips, 91 Iowa 210, 59
N. W. 40; Howell v. Ackerman, 89
Ky. 22, 11 S. W. 819, 11 Ky. L. 251;
Lord v. Bourne, 63 Maine 368, 18
Am. Rep. 234; In re Sessions’ Estate,
70 Mich. 297, 38 N. W. 249, 14 Am.
St. 500; Bailey v. Bailey, 25 Mich.
185; In re Swenson’s Estate, 55 Minn.
300, 56 N. W. 1115; Reinders v. Kop-
pelman, 94 Mo. 338, 7 S. W. 288.

34 Hughes v. Knowlton, 37 Conn.
147  DESIGNATING BENEFICIARIES AND THEIR SHARES § 170
narily includes ancestors as well as descendants in the same de-
gree of consanguinity.°° Thus where the gift is to “next of kin”
of the testator and he dies leaving a father, a mother, and also a
child, all will share equally; though under the statute, the child
would have taken all as the sole distributee.** Under a gift to
“next of kin,” a brother or sister will take to the exclusion of the
children of a deceased brother or sister.°7 The term does not
mean all those who would take under the statute of distribu-
tions.*® It signifies those who stand in the nearest relationship to
the intestate according to the rules of the civil law for computing
degrees of kinship.*® It includes only those who are next of kin
at the death of the testator.*°
The use of the term “next of kin” does not ordinarily include
the surviving spouse of the testator or person named ;** but such
spouse will be included where the instrument clearly indicates that
such was the intention of the testator.*® The term ‘‘next of kin,”
when used in a will, includes relatives of the half blood with those
of the whole blood in the same degree.** Where the term “next
of kin” is used to designate beneficiaries, the testator should use
such additional words as will clearly indicate his wish respecting
the persons who are to take. If he does not desire his gift to go
to the next of kin in the strictest sense, he should indicate that the

429; Blodgett v. Stowell, 189 Mass.
142, 75 N. E. 138; McGinnis v. Harris,
52 N. Car. 213.

352 Jarman Wills (6th Am. ed.)
954; Clark v. Mack, 161 Mich. 545,
126 N. W. 632, 28 L. R. A. (N. S.)
479; Bishop v. Rider, 31 Ohio C. C.
332,

36 Withy v. Mangles, 4 Beav. 358.

87 Clark v. Mack, 161 Mich. 545,
126 N. W. 632, 28 L. R. A. (N. S.)
479,

38 Fargo v. Miller, 150 Mass. 225,
22 N. E. 1003, 5 L. R. A. 690; Swasey
v. Jaques, 144 Mass. 135, 10 N. E.
758, 59 Am. Rep. 65; Redmond v.
Burroughs, 63 N. Car. 242,

39 Clark v. Mack, 161 Mich. 545,

126 N. W. 632, 28 L. R. A. (N. S.)
479,

40In re Robbin’s Estate, 89 Misc.
345, 152 N. Y. S. 1067.

41 Wetter v. Walker, 62 Ga. 142;
Haraden v. Larrabee, 113 Mass. 430;
Jones v. Oliver, 38 N. Car. 369; Tif-
fany v. Emmet, 24 R. I. 411, 53 Atl.
281. But see Pinkham v. Blair, 57
N. H. 226.

43 Nester v. Nester, 68 Misc. 207,
118 N. Y. S. 1009; In re Devoe, 171
N. Y. 281, 63 N. E. 1102, 57 L. R. A.
536.

44Morse v. Lowe, 182 Mich. 607,
148 N. W. 970; Edwards v. Barks-
dale, 2 Hill Ch. (S. Car.) 416.
§ 171

WILLS 148

gift is to his next of kin on the part of certain persons, naming
them, under the statute of distribution.*®

The period at which “next of kin” is to be determined, whether
at the time of the death of the testator, or of a life tenant, or at
some other period, should clearly appear. It should be stated
whether the gift is to be per stirpes or according to statute, other-
‘wise it will be construed to be per capita.*° Where it is the wish
of the testator to include the husband or wife, the gift should be .
to the husband or wife and next of kin.*7

§ 171. Representatives, legal representatives, and per-
sonal representatives.—In their most comprehensive sense,
the terms “representatives,” “legal representatives,” and “per-
sonal representatives,” include all persons who may lawfully rep-
resent another. And when used in connection with estates of
deceased persons such expressions primarily mean those artificial
representatives, the executors and administrators, who, by law,
represent the deceased, in distinction from the heirs who are the
natural representatives.** But when used in wills such terms may
mean the heirs or next of kin of the testator or a person named.”
The true meaning of these terms, however, when used in wills, is
to be gathered from the language of the entire will, read in the
light of relevant circumstances.*® Like a gift to one and his heirs,
a gift to one and his representatives goes to him absolutely, and
does not enable his representatives to take as purchasers.**

45 Jarman Wills
*954,

46 Fisk v. Fisk, 60 N. J. Eq. 195,
46 Atl. 538.

47 Luce v. Dunham, 69 N. Y. 36.

48 Briggs v. Walker, 171 U. S. 466,
43 L. ed. 243, 19 Sup. Ct. 1; Staples
v. Lewis, 71 Conn. 288, 41 Att. 815;
Gruenewald v. Nue, 215 Ill. 132, 74
N. E. 101; Alexander v. McPeck,
189 Mass. 34, 75 N. E. 88; Halsey v.
Patterson, 37 N. J. Eq. 445; Nor-
wood v. Mills, 3 Ohio Sup. & C. P.
Dec. 356, 1 Ohio N. P. 314; In re
Rankins’ Estate, 13 Pa. Co. Ct. 617.

(6th ed. Big.)

49Green v. Huntington, 73 Conn.
106, 46 Atl. 883; Thompson v. Young,
25 Md. 450; In re Reisenberg, 116
Mo. App. 308, 90 S. W. 1170; Chasy
v. Gowdry, 43 N. J. Eq. 95, 9 Atl.
580; McCray v. McCray, 12 Abb. Pr.
(N. Y.) 1; Cochran v. Cochran, 127
Pa. St. 486, 17 Ati. 981.

50 Johnson v. Edmond, 65 Conn.
492, 33 Atl. 503; Marsh v. Marsh, 92
Nebr. 189, 137 N. W. 1122.

51 Lusby v. Cobb, 80 Miss. 715, 32
So. 6.
«

149 DESIGNATING BENEFICIARIES AND THEIR SHARES § 172

Much perplexity has arisen as to who should take where the
gift is made to one and in the case of his death to his representa-
tives, or to the representatives without any gift to the deceased.
Such gifts have been claimed by the executors or administrators
for their personal benefit, but their claims have been seldom rec-

ognized.”?

§ 172. Husband and wife.—In making a devise or bequest
to the husband or wife of a certain person it is advisable to men-
tion such husband or wife by name; otherwise the term “hus-
band” or ‘“‘wife” may apply to the person who answers that de-
scription at the date of the will.°* Thus unless there is something
in the will indicating the contrary, a gift to the wife of a desig-
nated married man is a gift to the person who is his wife at the
time of the making of the will and not to one whom he may sub-
sequently marry.”

A gift to the “widow” of a designated person, however, has a
broader application and includes such wife as may survive him.
In the last case cited the chancellor said: ‘It could not, of course,
be ascertained until the death should have occurred who would
answer the description—who would be the widow. The provision
is not declared to be in favor of any person living at the date of
the will, nor is the language employed to be so construed. The
gift is not to the wife of the decedent, but to his widow, the per-
son who should be his wife at the time of his death.” Where the
word “wife” was first used. in a will, and she was subsequently
referred to as “widow,” it was held that the word “‘widow” re-
ferred to the wife previously designated.°* But words in the will
may indicate that the testator did not by use of the word “widow”’

52 Davies v. Davies, 55 Conn. 319,
11 Ati. 500, and cases cited.

53 Johnson v. Webber, 65 Conn. 501,
33 Atl. 506; Van Syckel v. Van
Syckel, 51 N. J. Eq. 194, 26 Atl. 156;
Meeker v. Draffen, 137 App. Div.
537, 121 N. Y. S. 1051.

54Van Syckel v. Van Syckel, 51 N.
J. Eq. 194, 26 Atl. 156; Van Brunt

v. Van Brunt, 111 N. Y. 178, 19 N. E.
60; Meeker v. Draffen, 137 App. Div.
537, 121 N. Y. S. 1051; Johnson v.
Johnson, 1 Tenn. Ch. 621.

55 Swallow v. Swallow’s Admr., 27
N. J. Eq. 278; Meeker v. Draffen, 137
App. Div. 537, 121 N. Y. S. 1051.

56 Davis v. Kerr, 3 App. Div. 322,
38 N. Y, S. 387, 73 N. Y. St. 726.
§ 173 WILLS 150
intend any future wife of the designated person who might sur-
vive him.*”

Where the testator designates a person as beneficiary by use of
the term “wife,” and such person is unmarried at the time the
will is executed, the person answering the description at the time
the gift takes effect in enjoyment, will be the beneficiary.°* Buta
betrothed named as wife, but not married before the testator’s
death, can not take under the will.®°° Where a testator made a de-
vise of real estate to his wife under the designation “my wife
Ida,” it was held that their subsequent divorce did not deprive her
of the right to take the devise.®°

A bequest to the “wife” of a designated person will entitle a
divorced wife of such person to take, although the divorce was
granted before the will was executed, where it appears that the
husband had not remarried at the time of the death of the tes-
tator.** Where a testator provided for an income from the trust
fund to a son during his life and after his death to the son’s wife,
naming her, “during her widowhood,” a subsequent divorce ob-
tained by the wife was held to defeat her right to take the in-
come after the death of the son.

§ 173. Issue, lawful issue, legitimate issue, immediate is-
sue, and issue of the body.—The primary and usual meaning
of the term “issue,” when used as a word of purchase, includes
lineal descendants of every degree;°* but where it is apparent,

57 Davis v. Kerr, 3 App. Div. 322, 38
N. Y. S. 387, 73 N. Y. St. 726.

62 In re Kettlewell, 98 L. T. (N. S.)
23.

58 Dean v. Mumford, 102 Mich. 510,
61 N. W. 7; Van Brunt v. Van Brunt,
111 N. Y. 178, 19 N. E. 60.

59 Steen v. Steen, 68 N. J. Eq. 472,
59 Atl. 675.

60In re Brown’s Estate, 139 Iowa
219, 117 N. W. 260; Charlton v. Mil-
ler, 27 Ohio St. 298, 22 Am. Rep. 307;
In re Jones’ Estate, 211 Pa. 364, 60
Atl. 915, 69 L. R. A. 940, 107 Am. St.
581.

61In re Gruendike’s Estate,
Cal. 628, 98 Pac. 1057.

154

68 Edwards v. Bibb, 43 Ala. 666;
Miller v. Miller, 151 Ky. 563, 152 S.
W. 442; Union Safe Deposit &c. Co.
v. Dudley, 104 Maine 297, 72 Atl.
166; Jackson v. Jackson, 153 Mass.
374, 26 N. E. 1112, 25 Am. St. 643, 11
L. R. A. 305; Inglis v. McCook, 68
N. J. Eq. 27, 59 Atl. 630; Rasquin v.
Hamersley, 152 App. Div. 522, 137
N. Y. S. 578; Miller’s Appeal, 52 Pa.
St. 113; Pearce v. Rickard, 18 R. IL
142, 26 Atl. 38, 19 L. R. A. 472, 49
Am. St. 755.
151  DESIGNATING BENEFICIARIES AND THEIR SHARES § 173
from extrinsic circumstances, or the provisions of the will, that
the testator intended to use the word in the sense of “children” it
will be so limited.** A more restricted meaning may be attributed
to the word “issue” if from the terms of the testamentary dispo-
sition it clearly appears that the testator used the word in a par-
ticular meaning less general than the ordinary meaning.® Thus
it has been held that the word “issue” when used in a will in col-
location with the word “parent,” is restricted to children, to the
exclusion of grandchildren.°* When used in a will, the word
“issue” means prima facie the same as “heirs of the body” and is
generally a word of limitation.”

The words “immediate issue” is limited to children only, and
is not equivalent to the term “issue.”

The expression ‘‘issue of the body” has been held synonymous
with “children,” and is a mere description of persons. It has
precisely the same legal operation as the expression “heirs of the
body.””° It means issue in any degree and includes illegitimate
issue.”*

In the use of the word “issue” to designate beneficiaries, care
should be exercised not to restrict it to children, unless it is the
wish of the testator to exclude the issue of a deceased child, which
he seldom desires to do. ‘The construction that the word “issue”
includes all lineal descendants of any degree, enables children and
grandchildren to take in competition and equally with their living
ancestors, all as members of one class ;7? which would seldom sat-

64 Clark v. Kittenplan, 63 Misc. 122,
118 N. Y. S. 404.

65 Coyle v. Coyle, 73 N. J. Eq. 528,
68 Atl. 224.

66 King v. Savage, 121 Mass. 303;
Coyle v. Coyle, 73 N. J. Eq. 528, 68
Atl. 224; Palmer v. Horn, 84 N. Y.
516.

67 Wright v. Gaskill, 74 N. J. Ea.
742, 72 Atl. 108; In re Packer’s
Estate, 246 Pa. 116, 92 Atl. 70; Stay-
man v. Paxson, 221 Pa. 446, 70 Atl.
803; Rembert v. Vetoe, 89 S. Car. 198,
71S. E. 959.

68 Bartlett v. Sears, 81 Conn. 34, 70
Atl. 33.

69 Daniel v. Whartenby, 84 U. S.
643, 21 L. ed. 663.

70 Zabriskie v. Wood, 23 N. J. Eq.
541; Wynne v. Wynne, 56 Tenn. 308.

71 Eaton v. Eaton, 88 Conn. 286, 91
Atl. 196.

72 Wistar v. Scott, 105 Pa. St. 200,
51 Am. Rep. 197; Pearce v. Rickard,
18 R. I. 142, 26 Atl. 38, 49 Am. St.
755, 19 L. R. A. 472; Ridley v. Mc-

‘Pherson, 100 Tenn. 402, 43 S. W. 772.
§ 174 WILLS 152

isfy the testator’s real wish. The rule of construction adopted by
the courts of Massachusetts, excluding the issue of living chil-
dren, and permitting all the issue of any generation to take per
stirpes the share which would have gone to any deceased child or
issue, comes nearest to satisfying the wishes of testators in gen-
eral.”*

Where a testator uses the words “lawful issue,” he is ordinarily
understood to intend those begotten and born in lawful wedlock,
and none others."* Thus where a testator made a gift to the
“lawful issue” of his son, illegitimate children of such son were
held not entitled to take, although a subsequent statute legitima-
tized such children.”> But it seems that the term “‘issue,’’ when
applied to children, will include illegitimate children, where such an
intent can be gathered from the words of the will and the condi-
tion of the parties, and more especially when, from the operation
of the statute, the illegitimate children come clearly within the
descriptive words of the gift.”

The use of the word “‘issue” in a will, where nothing appears to
limit its legal import, generally includes adopted children.” But
where it is the intention of the testator to include adopted or ille-
gitimate children, it is advisable to indicate that intent by the use
of proper words, as otherwise they might be excluded. The
word “children” or “descendants,” having a more definite mean-
ing, should be used in preference to the word “‘issue’’ wherever
practicable.”

§ 174. Descendantsx—Descendants are those who have
issued from an individual, including his children, grandchildren,

73 Jackson v. Jackson, 153 Mass. 76 Harrell v. Hagen, 147 N. Car.
374, 26 N. E. 1112, 25 Am. St. 643, 111, 60 S. E. 909.
11 L. R. A. 305; Dexter v. Inches, 77 Hartwell v. Tefft, 19 R. I. 644,
147 Mass. 324, 17 N. E. 551. 35 Atl. 882, 34 L. R. A. 500.
74Brisbin v. Huntington, 128 Iowa 78 Flora v. Anderson, 67 Fed. 182;
166, 103 N. W. 144; Black v. Cart- New York Life Ins. Co. v. Viele, 161
mell, 10 B. Mon. (Ky.) 188; United N. Y. 11, 55 N. E. 311, 76 Am. St.
States Trust Co. v. Maxwell, 26 238.
Misc. 276, 57 N. Y. S. 53. 79 See post, ch. 30, § 725.
75 Central Trust Co. v. Skillin, 154
App. Div. 227, 138 N. Y. S. 884.
153. DESIGNATING BENEFICIARIES AND THEIR SHARES § 174

and their children to the remotest degree,*° but does not include
“next of kin” or “heirs at law” generally, as these terms compre-
hend descendants as well as ascendants and collaterals.** “A gift
to descendants receives a construction answering to the obvious
sense of the term, namely, as comprising issue of every de-
gree.”*? According to its accurate lexicographical and legal mean-
ing the word “descendant” generally designates the issue of a
deceased person, and does not describe the child of a parent
who is still living. The word is correlative to “ancestor” or
“ascendant.”** It includes the most remote lineal offspring,
and it is practically synonymous with “issue” in its legal mean-
ing. It does not include relatives in the ascending line ;* nor
does it include collateral relations.**

It may be conceded that the words “children” and “descend-
ants” are not ordinarily synonymous.** While children are de-
scendants, descendants are not always children ;** for descendants
are those who have issued from an individual, and include his
children, grandchildren, and their children to the remotest de-
gree.** But it sometimes happens that a testator uses the word
“descendants” in the sense of “‘children.”°? Thus where the word
“descendants” is qualified by the phrase “by my said son Wash-
ington,” only such descendants as were begotten by the testator’s
son Washington were included.**

80 Lich v. Lich, 158 Mo. App. 400,
138 S. W. 558.

81 Tompkins v. Verplanck, 10 App.
Div. 572, 42 N. Y. S. 412; Hamlin v.
Osgood, 1 Redf. Surr. (N. Y.) 409.

82Jarman Wills (6th ed. Big.)
#943,

83 Hillen v. Iselin, 144 N. Y. 365,
39 N. E. 368.

84 Bates v. Gillett, 132 Ill. 287, 24
N. E. 611; Tichenor v. Brewer’s Exr.,
98 Ky. 349, 33 S. W. 86, 17 Ky. L.
936.

85 Tichenor v. Brewer’s Exr., 98
Ky. 349, 33 S. W. 86, 17 Ky. L. 936;
Schmaunz v. Goss, 132 Mass. 141;
Mitchell v. Thorne, 134 N. Y. 536, 32
N. E. 10, 30 Am. St. 699.

86 Bates v. Gillett, 132 Ill. 287, 24
N. E. 611; Tichenor v. Brewer’s Exr.,
98 Ky. 349, 33 S. W. 86, 17 Ky. L.
936; Baker v. Baker, 8 Gray (Mass.)
101. But see Turley v. Turley, 11
Ohio St. 173. :

87 Neilson v. Brett, 99 Va. 673, 40
S. E. 32.

88 Bates v. Gillett, 132 Ill. 287, 24
N. E. 611.

89 Tichenor v. Brewer’s Exr., 98
Ky. 349, 33 S. W. 86, 17 Ky. L. 936;
Bryan v. Walton, 20 Ga. 480.

90 Schmaunz v. Goss, 132 Mass. 141.

91 Slote v. Reiss, 153 Ky. 30, 154 S.
W. 405.
§ 175 WILLS 154

§ 175. Offspring —The term “offspring,” as used in a
will, is said to be synonymous with issue.°? It includes lineal
descendants of every degree.** The word “offspring,” like the
words “issue” and “descendants,” may be used in different senses.
It may mean children only, or it may include more remote de-
scendants. In its proper and natural sense, the term includes
every degree of lineal descendants.°* While the term may mean
“children,” yet when used in the phrase “children or offspring,”
it refers to other offspring beyond children.°° The word “off-
spring,” when used in connection with a devise of real estate, is a
word of limitation, not of purchase.”°

§ 176. Children, grandchildren, adopted children, step-
children, illegitimate children and children en ventre sa mere.
—The word “children,” in its technical as well as popular mean-
ing, includes the immediate legitimate offspring of the person

indicated as the parent.%”

Usually it does not include grand-

children,°** stepchildren,*® adopted children,* or illegitimate chil-

92 Barber v. Pittsburgh &c. R. Co.
166 U. S. 83, 41 L. ed. 925, 17 Sup.
Ct. 488; Mitchell v. Pittsburgh &c. R.
Co., 165 Pa. St. 645, 31 Atl. 67.

93 Barber v. Pittsburgh &c. R. Co.,

166 U. S. 83, 41 L. ed. 925, 17 Sup.

‘Ct. 488; Allen v. Markle, 36 Pa. St.
117.

94 Young v. Davies, 2 Dr. & Sm.
167, 9 Jur. (N. S.) 399, 32 L. J. Ch.
372.

®5 Thompson v. Beasley, 3 Drew. 7.

96 Barber v. Pittsburgh &c. R. Co.,
69 Fed. 501; Allen v. Markle, 36
Pa. St. 117.

®7 Duncan v. De Yampert, 182 Ala.
528, 62 So. 673; Carpenter v. Perkins,
83 Conn. 11, 74 Atl. 1062; Arnold v.
Alden, 173 Ill. 229, 50 N. E. 704;
Pugh v. Pugh, 105 Ind. 552, 5 N. E.
673; Ward v. Cooper, 69 Miss. 789,
13 So. 827; Dunn v. Cory, 56 N. J.
Eq. 507, 39 Atl. 368; Wylie v. Lock-
wood, 86 N. Y. 291, 20 Hun 377; Mc-
Intosh’s Estate, 158 Pa. St. 528, 27

98 Phinizy v. Foster, 90 Ala. 262, 7
So. 836; West v. Rassman, 135 Ind.
278, 34 N. W. 991; Thomas v.
Thomas (Miss.), 53 So. 630; Kondolf
v. Britton, 160 App. Div. 381, 145 N.
Y. S. 791; Spicer v. Connor, 148 App.
Div. 334, 132 N. Y. S. 877; Lee v.
Baird, 132 N. Car. 755, 44 S. E. 605;
In re Long’s Estate, 39 Pa. Super. Ct.
323; In re Reynold’s Will, 20 R. I.
429, 39 Atl. 896, 3 Prob. Rep. Ann.
17; Logan v. Brunson, 56 S. Car. 7,
33 S. E. 737; Frank v. Frank, 120
Tenn. 569, 111 S. W. 1119; Brett v.
Donaghe’s Gdn., 101 Va. 786, 45 S. E.
324.

99 Coon v. McNelly, 254 Ill. 39, 98
N. E. 218; Blankenbaker vy. Snyder,
36 S. W. 1124, 18 Ky. L. 437; Fouke
v. Kemp, 5 Har. & J. (Md.) 135;
Lawrence v. Hebbard, 1 Brad. Surs.
(N. Y.) 252; In re Kurtz’s Estate,
145 Pa. St. 637, 23 Atl. 322; Carroll
v. Carroll, 20 Tex. 731.

1 Russell v. Russell, 84 Ala. 48, 3 So.
§ 176

155 DESIGNATING BENEFICIARIES AND THEIR SHARES

dren,? unless there be some word or expression within the will to
show that the testator used the word in a broader sense,’ or unless
the extrinsic circumstances show that the testator intended to in-
clude such persons.*

The term “children,” when used in a will, will usually be taken
to refer to “issue” or descendants of the first degree, and to ex-
clude descendants of a more remote degree, but it would seem
that the term will be given a wider signification and include issue,
however remote when reason demands it,® and where such is the
manifest intention of the testator.°

A child en ventre sa mere is included in a devise to the “chil-
dren” of its parents generally.’ “Generally a child will be consid-
ered in being from conception to the time of its birth, in all cases
where it will be for the benefit of such child to be so considered.’’*

Also children born illegitimate, who are subsequently rendered
legitimate by statute, are included under a devise to the “children”
of their putative parent.° While the term “children” may be ex-
tended by the terms of the will itself, or by the surrounding facts
and circumstances, so as to include grandchildren, adopted chil-

214, 68 Atl. 821, 125 Am. St. 291; In
re Hopkins, 102 App. Div. 458, 92 N.
Y. S. 463; Schafer v. Eneu, 54 Pa.
St. 304; Cochran v. Cochran, 43 Tex.
Civ. App. 259, 95 S. W. 731; Lichter
v. Thiers, 139 Wis. 481, 121 N. W.
153; Stout v. Cook, 77 N. J. Eq. 153,
75 Atl. 583. But see Bray v. Miles,
23 Ind. App. 432, 54 N. E. 446, 55 N.
E, 510; Sewall v. Roberts, 115 Mass.
262; In re Truman, 27 R. I. 209, 61
Atl. 598.

2Flora v. Anderson, 67 Fed. 182;
Adams v. Adams, 154 Mass. 290, 28
N. E. 260, 13 L. R. A. 275.

3 Edwards v. Bender, 121 Ala. 77,
25 So. 1010; Miller v. Carlisle, 90 Ky.
205, 14 S. W. 75, 12 Ky. L. 66;
Bowker v. Bowker, 148 Mass. 198, 19
N. E. 213; In re Paton, 111 N. Y.
480, 18 N. E. 625; In re Keogh, 126
App. Div. 285, 110 N. Y. S. 868.

4In re Schedel’s Estate, 73 Cal.
594, 15 Pac. 297; Lichter v. Thiers,
139 Wis. 481, 121 N. W. 153; Gale
v. Bennett, Ambler 681; Fenn  v.
Death, 23 Beav. 73, 2 Jur. (N. S.)
700,

5 Pfender v. Depew, 136 App. Div.
636, 121 N. Y. S. 285.

6 Jordan v. Roach, 32 Miss. 481;
Prowitt v. Rodman, 37 N. Y. 42; In
re Gormley’s Estate, 154 Pa. St. 378,
25 Atl. 814; In re Scholl, 100 Wis.
650, 76 N. W. 616.

7 Mclain v. Howald, 120 Mich. 274,
79 N. W. 182, 77 Am. St. 597; Star-
ling v. Price, 16 Ohio St. 29.

8Hall v. Hancock, 15 Pick.
(Mass.) 255, 257, 26 Am. Dec. 598..

9Tn re Grey’s Trusts, L. R. (1892)
3 Ch. 88. But see Hicks v. Smith,
94 Ga. 809, 22 S. E. 153,
§ 177 WILLS 156
dren, stepchildren, and illegitimate children, it is better not to rely
on the context or family circumstances, but to use such words as

will clearly designate the intended beneficiaries.*°

§ 177. Brothers and sisters—Where the testator uses the
word “brothers” or “sisters” in his will, he will be presumed
prima facie to mean brothers or sisters of the whole blood. But
this presumption is not conclusive, and may be rebutted by infer-
ence from the context showing that he meant brothers or sisters
of the half blood. The more recent authorities, however, hold
that a gift to the “brothers and sisters” of the testator, includes
brothers and sisters of the half blood, as well as those of the full
blood.” But a gift to “brothers and sisters’ does not include the
children of deceased brothers and sisters, unless the context of
the will shows such an intention.** Where the gift is to brothers
and sisters they take as a class.**

The use of the plural word “brothers” or “sisters” has been
held to indicate an intention on the part of the testator to include
the heirs of deceased brothers or sisters, although the testator had
but one brother or sister living at the date of the will.*® Buta
gift to the “surviving brothers and sisters” of the testator does
not include the children of a deceased brother or sister.*®

§ 178. Nephews and nieces.—“Nephews” and “nieces”
mean the immediate descendants of the brothers and sisters of
the persons named,*? and when such words are used in a will they

10 See post, ch. 30.

11 Wood v. Mitcham, 92 N. Y. 375,
61 How. Pr. (N. Y.) 48; Leake v.
Robinson, 2 Mer. 363.

12 McAlister v. Burgess, 161 Mass.
269, 37 N. E. 173, 24 L. R. A. 158;
In re Yetter’s Estate, 160 Pa: St. 506,
28 Atl. 847; McNeal v. Sherwood,
24 R. I. 314, 53 Atl. 43; Watkins v.
Blount, 43 Tex. Civ. App. 460, 94 S.
W. 1116; Grieves v. Rawley, 10
Hare 63.

183In re Edwards, 132 App. Div.

544,117 N. Y. S. 3; In re Kellerman’s

Estate, 18 Pa. Super. Ct. 530.
14Jarman Wills (6th ed. Big.)
*232,

15 Fuller v. Martin, 96 Ky. 500, 29
S. W. 315; Huntress v. Place, 137
Mass. 409; In re John’s Estate, 11
Phil. (Pa.) 144.

16 Mullarkey v. Sullivan, 136 N. Y.
227, 32 N. E. 762.

17In re Butler, 66 Misc. 406, 123
N.Y. S. 282.
157  DESIGNATING BENEFICIARIES AND THEIR SHARES § 179
do not ordinarily include grandnephews or grandnieces,** unless
the context shows that such was the plain intention of the testa-
tor"

Where the testator makes a gift to “nephews and nieces” it will
be presumed that he intended: nephews and nieces by birth, and
not by adoption, in the absence of knowledge by him of the fact
of such adoption.” The words “nephews” and “nieces” mean not
those of the whole blood alone, but children of half-brothers and
half-sisters.* But the words do not include a nephew or niece by
marriage, that is, a nephew or niece of the testator’s husband or
» wife.”

Where legacies or devises are given to “nephews” or “nieces,”
only legitimate nephews or nieces will be included.”

$179. Cousins.—“‘Prima facie the word ‘cousin’ means
first cousin, and not a first cousin once or more times removed:
still less does it mean a second or third cousin which might go on
indefinitely.”** “Those only having either the same great grand-
grandfather or the same great-grandmother are second cousins to
each other.”** The word “cousin,” when used in a will to desig-
nate a beneficiary, ordinarily means a first cousin.” Thus a gift
to each of the “cousins” of a testator passes to the first cousins

18 Willard v. Darrah, 168 Mo. 660,
68 S. W. 1023, 909 Am. St. 468;
Buzby v. Roberts, 53 N. J. Eq. 566,
32 Atl. 9; Kimball v. Chappel, 18 N.
Y. S. 30, 27 Abb. N. Cas. 437;
Shull v. Johnson, 55 N. Car. 202;
Lewis v. Fisher, 2 Yeates (Pa.) 196;
White v. Old, 113 Va. 709, 75 S. E.
182, Ann. Cas. 1913E, 586; In re
Blower, L.R.6 Ch. 351, 42 L. J. Ch. 24,
25 L. T. Rep. (N. S.) 181, 19 Wkly.
Rep. 666.

19 Schull v. Johnson, 2 Jones Eq.
(N. Car.) 202. But see In re Holt’s
Estate, 146 Cal. 77, 79 Pac. 585.

20In re Haight, 63 Misc. 624, 118
N. Y. S. 745.

21 Shull v. Johnson, 2 Jones Eq. (N.

Car.) 202; Grieves v. Rawley, 10
Hare 63.

22In re Root’s Estate, 187 Pa. St.
118, 40 Atl. 818; Green’s Appeal, 42
Pa. St. 25.

23 Bolton v. Bolton, 73 Maine 299;
Lyon v. Lyon, 88 Maine 395, 34 Atl.
180.

24 Stevenson v. Abington, 31 Beav.
305.

25 Bridgnorth v. Collins, 15 Sim.
538.

26 White v. Massachusetts Inst. of
Tech., 171 Mass. 84, 50 N. E. 512;
Stevenson v. Abingdon, 8 Jur. (N.
S.) 811, 6 L. J. 345, 10 Wkly. Rep.
591.
§ 180 WILLS 158

only, and not to first cousins once removed." A gift to all of the
“first cousins” of the testator does not include the issue of first
cousins deceased when the will was executed.”* Buta gift to “all
the first and second cousins” has been held to include all within
the degree of second cousin, and hence embraces the first cousins
first removed and first cousins twice removed.”°

§ 180. Family.—The use of the word “family” in desig-
nating beneficiaries in a will should be avoided wherever possible ;
but if its use can not be well dispensed with, care should be exer-
cised to make its intended meaning clear. The term being of flex-
ible meaning, it is often difficult to determine what persons are
intended to be included. Its meaning is always to be gathered
from the whole will, read in the light of all the circumstances sur-
rounding its execution. Primarily it means all those who live
under the same roof with the proprietor of the premises, includ-
ing his wife, children and servants. In its ordinary and common
meaning, when used in wills, it means a man’s wife and children.
It is also used to designate a man’s brothers and sisters, or his
next of kin, where he has no wife or children. In its broad sense
it sometimes has reference to those persons of the same name who
are descended from a common though remote ancestor.*°
Whether the term “family” includes the wife of the person desig-
nated when there are no children is a question upon which the
courts differ. The weight of authority, however, upholds a gift
for the benefit of the husband and his family to include a childless
wife who is dependent upon her spouse for support.**

It has been held that a ‘husband and wife without children con-
stitute a family.*? The term “family,” when used in a will, in-

27 White v. Massachusetts Inst. of 302 Story, Eq. Jur., 8 1065 B.
Tech., 171 Mass. 84, 50 N. E. 512; 31 Oberndorf v. Farmers’ Loan &
Howland v. Slade, 155 Mass. 415, 29 Trust Co., 71 Misc. 64, 129 N. Y. S.

N. E. 631. 814.
28 White v. Massachusetts Inst. of | 32Crosgrove v. Crosgrove, 69
Tech., 171 Mass. 84, 50 N. E. 512. Conn. 416, 38 Atl. 219; Kitchell v.

29 Mayott v. Mayott, 2 Bro. C. C. Burgwin, 21 Ill. 40.
125, 1 Sim. & Stu. 301.
159 DESIGNATING BENEFICIARIES AND THEIR SHARES § 181
cludes a childless widow.** Also a deserted wife without children
is within the term “family.’’**

It has been held that a man who has a wife is the head of a
family although his wife may have deserted him.** A gift to the
“family” of a designated person will include the children of such
person, unless the context shows a different intention; but it does
not include the parent of such children.°* Where, however, the
gift is to a certain person and his “family,” it will usually include
such person and his children.** It has been held that the term
“family” does not include adult children living separately and not
forming a part of the same household.**

§ 181. Relatives or relations.—It is never advisable to use
the words “relatives,” “relations” or “kin” in designating benefi-
ciaries under a will, as their use may render the gift void for un-
certainty. If they are used they should be accompanied by other
words to designate the beneficiaries. In the popular sense such
words mean all persons within any degree whatever of consan-
guinity or affinity.°® But when such words are used in a will to
denote a class of beneficiaries, they will be held to include only
such persons as would take under the statutes of descent and dis-
tribution if the testator had died intestate.*° When used alone to
designate beneficiaries the term “relations” or “relatives” in-
cludes only blood relations,** and not those related by marriage.**

33In re Walley’s Estate, 11 Nev.
260.

3¢Berry v. Hanks, 28 Ill. App. 51.

35 Whitehead v. Tapp, 69 Mo. 415;
Oberndorf v. Farmers’ Loan & Trust
Co., 71 Misc. 64, 129 N. Y. S. 814.

36 Moredock v. Moredock, 179 Fed.
163; Hoadly v. Wood, 71 Conn. 452,
42 Atl. 263; Alsop’s Appeal, 9 Pa.
St. 374; Stuart v. Stuart, 18 W. Va.
675.

37 Crosgrove v. Crosgrove, 69 Conn.
416, 38 Atl. 219; Bates v. Dewson, 128
Mass. 334; Hall v. Stephens, 65 Mo.
67, 27 Am. Rep. 302;
Greeley, 67 N. H. 37, 30 Atl. 413.

38 Wood v. Wood, 63 Conn. 324, 28

Smith v.-

Atl. 520; Phelps v. Phelps, 143 Mass.
570, 10 N. E. 452.

39 Esty v. Clark, 101 Mass. 36, 3
Am. Rep. 320; Huling v. Fenner, 9
R. I. 410.

40 Drew v. Wakefield, 54 Maine
291; Handley v. Wrightson, 60 Md.
198; Hall v. Wiggin, 67 N. H. 89, 29
Atl. 671; Varrell v. Wendell, 20 N.
H. 431; Ross v. Ross, 25 Can. Sup.
Ct. 307.

41JTn re Pfuelb’s Estate, 48 Cal.
643; Boyd v. Perkins, 130 Ky. 77, 113
S. W. 95; In re Freeman’s Estate,
40 Pa. Super. Ct. 31; Cleaver v.
Cleaver, 39 Wis. 96, 20 Am. Rep. 30.

42 Stoff v. McGinn, 178 Ill. 46, 52
§ 182 WILLS 160

The term has been held not to include illegitimates* or step-
children ;** but the testator may, by suitable language, clearly
show that he intends to include such persons.

The words “kin” or “kindred,’’ when used in a will, has been
held to include blood relatives only.*°

§ 182. Servants and employes.—Gifts to servants or em-
ployés are frequently made subject to some condition, as, that the
beneficiary shall be in the testator’s employment at the time of the
latter’s decease ;** that beneficiary shall have been in the employ-
ment of the testator for a certain period, or that he shall continue
in the employment of the testator’s widow. But where a gift to
servants is unexplained, it will include only those directly and reg-
ularly employed, and not those who have been only occasionally
employed.*?

The mere fact that the beneficiary was paid by the piece or
‘quantity of a given article produced by him, instead of by the
day, week or month, is not sufficient to take him out of the cate-
gory of employés.** However, the persons included in a gift to
“servants” or “employés” will be determined upon a proper con-
struction of the language of the will in connection with the sur-
rounding circumstances.*® Examples of gifts to servants and
employés will be found in a subsequent chapter of this work.*°

§ 183. Creditors——As a general rule a legacy given by a
testator to his creditor, which is equal or greater than the debt,
shall be considered as a satisfaction of the debt; yet where there
exists any circumstances to repel the presumption that such was
the intention of the testator, courts have always eagerly seized

N. E. 1048; Elliot v. Fessenden, 83 46 White v. Massachusetts Inst., 171
Maine 197, 22 Atl. 115, 13 L. R. A. Mass. 84, 50 N. E. 512.
37; Maitland v. Adair, 3 Ves. Jr. 231. 47In re Klein, 35 Mont. 185, 88

43 Lavigne v. Ligue des Patriotes, Pac. 789; Metcalf v. Sweeney, 17 R.
178 Mass. 25, 59 N. E. 674, 54 L. R. I. 213, 21 Att. 364, 33 Am. St. 864.
A. 814, 86 Am. St. 460. 48In re Cowell’s Estate, 167 Cal.

44 Kimball v. Story, 108 Mass. 382. 222,-139 Pac. 82.

45In re Freeman’s Estate, 40 Pa. 4Gardner v. Viall, 36 R. I. 436,
Super. Ct. 31. -90 Atl. 760.

50 See post, ch. 30, § 704.
161 DESIGNATING BENEFICIARIES AND THEIR SHARES § 184
upon them to prevent the application of the rule.°* Thus it has
been held that a direction in a will for the payment of debts rebuts
the presumption.*? And where the legacy is less than the amount
of the debt, or is of a different nature, the same rule applies.”

In view of the ease with which such presumption is overcome
by some chance expression in the will, the testator should use
such language as will leave no room for doubt as to, his intention.
If he does not make it clear that the gift is to be in satisfaction of
the debt, the legatee will be entitled to collect his claim against the
estate in addition to his legacy. It has been held that the mere
giving of a legacy to a creditor does not indicate that the testator
intended that it should be in satisfaction of a debt due the cred-
itor from the testator, but that the testator’s intention must ap-
pear from the will to cause this result.°* Where the will makes
reference to the creditor as such for the mere purpose of descrip-
tion, it is held not to be a direction for satisfaction.** Examples
of gifts to creditors will be found elsewhere in this work.**

§ 184. Debtors.—The mere giving of a legacy to a debtor
does not indicate that the testator intended that it should be in
satisfaction of a debt due the testator from the legatee.*’ It
raises no presumption of an intention by the-testator to forgive
the debt in addition to the legacy."* The testator’s wishes should
clearly appear, as it has been held that his intention may be im-
plied from some other part of the will or may be proved by
extrinsic evidence.*® If the debt is barred by the statute of limi-

51In re Cole’s Estate, 85 Misc. 630,
148 N. Y. S. 1099,

52 Mitchell v. Vest, 157 Iowa 336,
136 N. W. 1054; Strong v. Williams,
12 Mass. 391, 7 Am. Dec. 81; Van
Riper v. Van Riper, 2 N. J. Eq. 1;
Wesco’s Appeal, 52 Pa. St. 195.

53 See cases cited in preceding note.

54Lisle v. Tribble, 92 Ky. 304, 17
S. W. 742, 13 Ky. L. 595; Jackson’s
Succession, 47 La. Ann. 1089, 17 So.
598.

55 Swing v. Gatch, 7 Am. L, Rec. 5.

56 See post, ch. 30, § 718.

11—Tuomp. WILLs.

57 Hayward v. Loper, 147 Ill. 41, 35
N. E. 225; Spath v. Ziegler, 48 La.
Ann, 1168, 2 So. 663; Sleeper v.
Kelley, 65 N. H. 206, 18 Atl. 718; In
re Bailey’s Estate, 153 Pa. St. 402, 26
Atl. 23; Chafee v. Maker, 17 R. I.
739, 24 Atl. 773.

58 Spath v. Zeigler, 48 La. Ann.
1168, 20 So. 663; Blackler v. Boott,
114 Mass. 24; Baldwin v. Sheldon,
48 Mich. 580, 12 N. W. 872.

59 Sloane v. Stevens, 107 N. Y. 122,
13 N. E. 618.
§ 185 WILLS 162
tations at the time of the testator’s death, it would seem that it
can not be deducted from the legacy, unless that intention appears
by the will.°° Examples of gifts to debtors will be found else-

where in this work.**

§ 185. Corporations and associations generally.—The ca-
pacity of corporations and associations to take under a will is dis-
cussed in a previous chapter ; and where a testator wishes to make
a corporation a devisee or legatee, either in his own jurisdiction,
or in a foreign state, it is incumbent upon the attorney in drawing
the will to ascertain the law on the subject. In designating cor-
porations or associations who are to take under the will, they
should be described with such certainty as to enable them to be
identified. But the devise or bequest will not be held invalid, if
the description is sufficient, in view of the surrounding circum-
stances, to identify with reasonable certainty the corporation or
association intended, and such corporation or association was in
existence at the time of the testator’s death.” Thus a gift to
“Woodstock College, Howard County,” was held valid though
the college was-situated in Baltimore County.**

A gift to a corporation or association to be formed after the
death of the testator will go to the corporation or association
formed in conformity with the terms and conditions of the will,®
and when he directs the creation of a corporation, he means a
legal entity coming into being as the statute directs.%° Forms of

93, 14 Am St, 442: Reformed Dutch
Church v. Brandow, 52 Barb. (N. Y.)

60 Allen v. Edwards, 136 Mass. 138.
61 See post, ch. 30, §§ 712-718.

62 Doan v. Carroll County Parish,
103 Md. 662, 64 Atl. 314, 115 Am. St.
379, 7 L. R. A. (N. S.) 1119; In re
Foley, 27 Misc. 77, 58 N. Y. S. 201.

63 In re Pearsons’ Will, 113 Cal. 577,
45 Pac. 849; Brewster v. McCall, 15
Conn. 274; Bond v. Cedar Rapids
Home for Aged Women, 94 Iowa
458, 62 N. W. 838; New Orleans v.
Hardie, 43 La. Ann. 251, 9 So. 12;
Stratton v. Physio-Medical College,
149 Mass. 505, 21 N. E. 874,5 L. R. A.

228; Smith v. Nelson, 18 Vt. 511.

64 Kerrigan v. Conelly (N. J. Eq.),
46 Atl. 227.

65 Nason v. First Bangor Christian
Church, 66 Maine 100; St. John v.
Girls’ Institute, 191 N. Y. 254, 83 N.
E. 981, 14 Ann. Cas. 708; Dodge v.
Williams, 46 Wis. 70, 1 N. W. 92; 50:
N. W. 1103.

66 Boyle v. John Boyle & Co., 136
App. Div. 367, 120 N. Y. S. 1048.
163 DESIGNATING BENEFICIARIES AND THEIR SHARES § 186
gifts to corporations and associations will be found in a subse-

quent chapter.*

§ 186. Unincorporated societies and assemblages.—A
gift to an unincorporated assemblage or society having no certain
membership, must of necessity fail for uncertainty ;°* and al-
though there is a certain membership, it would seem that the
members could not take beneficially, for the reason that any mem-
ber might call for a division at any time, and thus entirely defeat
the testator’s intention.

A corporation bearing the same name as an unincorporated
society can not take a gift intended for the latter, although organ-
ized to hold property for it ; but where the statute provides that
on such societies becoming incorporated the property held by the
society before shall vest in the society as fully as if incorporated,
the gift may be made good by the incorporation of the society
after the death of the testator.”

Where a gift is made to an unincorporated association for a
charitable use, the members thereof take as natural persons, and
not as an association, and if the testator fails to appoint a trustee,
the members of the association may be treated as trustees for the
purpose of effectuating the gift.” A gift to a natural person in
trust for an unincorporated society may be upheld as a charitable
gift,”* though the membership of the society may be uncertain.”

§ 187. Charitable corporations or associations.—A person
desiring to make a testamentary disposition of his property, or a

67 See post, ch. 30, § 722.

68 Greene v. Dennis, 6 Conn. 293,
16 Am. Dec. 58.

69 In re Amos, 3 Ch. Div. 159. But
see Ticknor’s Estate, 13 Mich. 44.

70 Hinckley v. Thatcher, 139 Mass.
477, 1 N. E. 840, 52 Am. Rep. 719;
In re Wheeler, 32 App. Div. 183, 52
N. Y. S. 943; Fifield v. Van Wyck,
94 Va. 557, 27 S. E. 446, 64 Am. St.
745. But see Brewster v. McCall, 15
Conn. 274.

71 Methodist Church v. Clark, 41

Mich. 730; Lane v. Eaton, 69 Minn.
141, 71 N. W. 1031, 38 L. R. A. 669,
65 Am. St. 559.

72 American Bible Society v. Wet-
more, 17 Conn. 181; Dye v. Beaver
Creek Church, 48 S. Car. 444,26 S. E.
717, 59 Am. St. 724.

73 Tucker v. Seaman’s Aid Soc., 48
Mass. 188; Dickson v. Montgomery,
31 Tenn. 348.

74 Burr v. Smith, 7 Vt. 241, 29 Am.
Dec. 154,
§ 187 WILLS 164
portion thereof, for the use of charity, may do so by giving it to
a corporation already in existence, or he may provide by will or
in his lifetime for the establishment of a suitable institution to
carry his wishes into effect. He may make his gift general, with-
out designating the use, or he may designate that his gift be ap-
plied to the general use of the corporation or assigned to a specific
purpose within the general scope of its powers."’ A gift is valid
if absolute and made direct to a charitable corporation to be used
by it for any object or objects germane to its corporate purposes.
In such case the corporation takes the property as owner and not
as trustee.” Testators frequently wish to benefit a particular
person or some lawful object without making such wish public,
and this is usually done by a direct gift to a trusted friend, with a
request that he expend the fund conformably to the testator’s *
wishes.””

Provision may be made in a will for alternative plans or a suc-
cession of institutions, and if either plan is capable of being en-
forced, or either institution is in turn capable of taking, a trust
will be created.”® :

It is well settled that gifts to charitable institutions will not fail
because the beneficiary is not named, or misnamed, provided the
language of the will and surrounding circumstances make it rea-
sonably certain what institution the testator intended.” The gen-

7 Robb v. Washington & Jeffer-
son College, 103 App. Div. 327, 78
N. E. 359. For forms of gifts to
charity, see post, ch. 30, §§ 863-889.

78 Bird v. Merklee, 144 N. Y. 544,
39 N. E. 645, 27 L. R. A. 423.

77In re Keleman, 126 N. Y. 73, 26
N. E. 968.

78 Taylor v. Columbian University,
226 U. S. 126, 57 L. ed. 152, 33 Sup.
Ct. 73; Tappan’s Appeal, 52 Conn.
412.

797In re Gibson’s Estate, 75 Cal.
329, 17 Pac. 438; Weed y. Scofield,
73 Conn. 670, 49 Atl. 22; Doughten v.
Vandever, 5 Del. Ch. 51; Colbert v.
Speer, 24 App. Cas. (D. C.) 187;
Woman’s Union Missionary Soc. v.

Mead, 131 Ill. 33, 23 N. E. 603; Bond
v. Cedar Rapids Home for Aged
Women, 94 Iowa 458, 62 N. W. 838;
Tichenor v. Brewer, 98 Ky. 349, 33 S.
W. 86, 17 Ky. L. 936; Baltimore Sis-
ters of Mercy v. Benzinger, 95 Md.
684, 53 Atl. 448; Harris v. Keasbey
(N. J. Eq.), 53 Atl. 555; Johnston v.
Hughes, 187 N. Y. 446, 80 N. E. 373,
12 Prob. Rep. Ann. 409; North Caro-
lina Inst. for Education of Deaf &c.
v. Norwood, 45 N. Car. 65; In re
Lennig’s Estate, 154 Pa. St. 209, 25
Atl 1049; Peckham v. Newton, 15
R. I. 321, 4 Atl. 758; In re Alchin, L.
R. 14 Eq. 230, 26 L. T. Rep. (N. S.)
763.
165 DESIGNATING BENEFICIARIES AND THEIR SHARES § 188
eral rule is that in order to constitute a valid trust provision for
charity there must be a beneficiary capable of being designated
and who can enforce the trust provision.*® Thus a bequest of
money for the erection of a soldiers’ monument, there being no
one named to execute the trust, was held void for that reason.**
But by statute in New York in 1893 it was provided that no devise
or bequest to charitable or benevolent uses shall be deemed in-
valid by reason of indefiniteness or uncertainty of the persons
designated as beneficiaries, if the gift be valid under the law in
other respects.** In creating a charitable trust great care should
be used in providing for trustees. Generally if no trustee is pro-
vided for, the estate descends to the heirs of the testator subject
to the trust.** Examples of gifts to charity will be found in an-
other chapter.**

§ 188. Educational objects——Where the recipients of a
gift for educational purposes are so indefinite as to render the
grant charitable, it will be held to be a charitable use.** Thus a
gift to a state to establish a permanent school fund is a gift toa

charitable use.**

Such a gift will be valid if the language used

designates the objects with sufficient certainty.*”
A gift to an educational institution will not fail because the

80 Filkins v. Severn, 127 Iowa 739,
104 N. W. 346; St. James v. Bagley,
138 N. Car. 384, 50 S. E. 841, 70 L.
R. A. 166.

81 Beecher v. Yale, 45 N. Y. S. 622.

82 Wait v. Society for Political
Study, 68 Misc. 245, 123 N. Y. S.
637.

83 Bartlett v: Nye, 4 Metc. (Mass.)
378.

84 See post, ch. 30, §§ 863-889.

85 Taylor v. Columbian University,
226 U. S. 126, 57 L. ed. 152, 33 Sup.
Ct. 73; Birchard v. Scott, 39 Conn.
63; Grand Prairie Seminary v. Mor-
gan, 171 Ill. 444, 49 N. E. 516; Wash-
burn College v. O’Hara, 75 Kans. 700,
90 Pac. 234; Attorney-General v.
Parker, 126 Mass. 216; De Camp v.

Dobbins, 29 N. J. Eq. 36; In re
John’s Will, 30 Ore. 494, 47 Pac. 341,
50 Pac. 226, 36 L. R. A. 242; Almy
v. Jones, 17 R. I. 265, 21 Atl. 616, 12
L. R. A. 414; Belle Co. v. Alexander,
22 Tex. 350, 73 Am. Dec. 268;
Clement v. Hyde, 50 Vt. 716, 28 Am.
Rep. 522; Dodge v. Williams, 46 Wis.
70, 1 N. W. 92, 50 N. W. 1103.

86 Bedford v. Bedford, 99 Ky. 273,
35 S. W. 926, 18 Ky. L. 193; Sears
v. Chapman, 158 Mass. 400, 33 N. E.
604, 35 Am. St. 502; Almy v. Jones,
17 R. I. 265, 21 Atl. 616, 12 L. R. A.
414.

87 Richmond v. State, 5 Ind. 334;
Giddings v. Gillingham, 108 Maine
512, 81 Atl. 951; Newell’s Appeal, 24
Pa. St. 197.
§ 189 WILLS 166

testator has not pointed out the persons to be benefited, provided
that he has endowed the institution with express or implied power
to select such beneficiaries.** Where an educational institution is
indicated in a will by an erroneous name or by an incorrect de-
scription, such a mistake will not avoid the gift if it is possible to
show by extrinsic evidence the institution intended.*? Education
being generally held to be a charitable use, testamentary gifts for
that purpose will be accorded the same liberality of construction
as any other class of charitable gifts. Descriptions of donees and
of the objects of the testator’s bounty, which would be held void
for uncertainty in any but charitable gifts, will be upheld. But
there are limitations beyond which courts refuse to sustain such
gifts on the ground of vagueness or uncertainty of either the ben-
eficiaries thereunder, or of the direct donees where a trust is
created. It is obvious that it is more difficult to sustain a trust in
which neither the ultimate beneficiaries nor the instruments to
carry it out are clearly pointed out, than one in which either of
these elements of a trust are specific and certain. It has been
held, therefore, that where both these elements are wanting, the
gift must fail, but where neither is present the gift will be up-
held.°°. Examples of gifts to educational objects will be found in
another chapter.**

§ 189. Religious societies and organizations.—It is gen-
erally held that a gift for the maintenance and support of religion
is a charitable use, and will be upheld if it contains the elements
of a valid charitable gift.°* Such a gift will be upheld if the or-
ganization or society intended can be ascertained with reasonable
certainty from the language used and the surrounding circum-
stances,” although the organization or society intended is mis-

88 McDonald v. Shaw, 81 Ark. 235, sity’s Appeal, 111 Pa. St. 572, 3 Atl.
98 S. W. 952. 664.

89 Goodrich’s Appeal, 57 Conn. 282, 90 Heiskell v. Chickasaw, 87 Tenn.
18 Atl. 49; Jacobs v. Bradley, 36 668, 11 S. W. 825,4 L. R. A. 699.
Conn. 369; South Newmarket Metho- 91 See post, ch. 30, § 722.
dist Seminary v. Peaslee, 15 N. H. 92Tn re Murphey’s Estate, 184 Pa.
317; Kerrigan v. Conelly (N. J. Eq.), St. 310, 39 Atl. 70, 63 Am. St. 802.

46 Atl. 227; Washington &c. Univer- %3 Preston v. Foster, 75 Conn. 709,
167 § 190

DESIGNATING BENEFICIARIES AND THEIR SHARES
named or inaccurately described.°* The uncertainty in the desig-
nation of the beneficiaries under a gift to a religious organization
or society is a characteristic of charitable gifts, and is no obstacle
to their validity.°* Forms and precedents of gifts to religious so-
cieties and organizations will be found elsewhere in this work.”

§ 190. Class in general—“A number of persons are popu-
larly said to form a class when they can be designated by some
general name as, ‘children,’ ‘grandchildren,’ or ‘nephews.’ ”’°? “In
legal contemplation, a gift to a class is a gift of an aggregate sum
to a body of persons uncertain in number at the time of the gift,
to be ascertained at a future time, who are all to take in equal or
in some other definite proportions, the share of each being de-
pendent for its amount upon the ultimate number.”**

The above definition is defective in restricting the time of as-
certainment of the numbers of the class to a future time, as it is
possible for the testator to devise to a class as fixed at the time the
will is made.*° A bequest is not a gift to a class where, at the

55 Atl. 558; In re Johnston’s Estate,
141 Iowa 109, 119 N. W. 275; Taylors-
ville Catholic Church v. Offutt, 6 B.
Mon. (Ky.) 535; Giddings v. Gilling-
ham,’ 108 Maine 512, 81 Atl. 951;
Nason y. First Bangor Christian
Church, 66 Maine 100; Dexter v.
Gardner, 7 Allen (Mass.) 243; Gil-
christ v. Corliss, 155 Mich. 126, 118
N. W. 938, 130 Am. St. 575; Van
Nostrand v. Reformed Church in
America, 59 N. J. Eq. 19, 44 Atl..472;
Kingsbury v. Brandegee, 113 App.
Div. 606, 100 N. Y. S. 353; Newell’s
Appeal, 24 Pa. St. 197; Attorney-
General v. Jolly, 2 Strob. Eq. (S.
Car.) 379; Fifield v. Van Wyck, 94
Va. 557, 27 S. E. 446, 64 Am. St. 745;
Osenton v. Elliott, 73 W. Va. 519, 81
S. E. 837.

°4 Dunham v. Averill, 45 Conn. 61,
29 Am. Rep. 642; Straw v. East
Maine Conference, 67 Maine 493;
Woman’s Foreign Missionary Soc. v.
Mitchell, 93 Md. 199, 48 Atl. 737, 53

L. R. A. 711; Winslow v. Cummings,
3 Cush. (Mass.) 358; Cook v. Uni- °
versalist Gen. Convention, 138 Mich.
157, 101 N. W. 217, 10 Prob. Rep.
Ann, 376; Greenland Church &c. Soc.
v. Hatch, 48 N. H. 393; Bruere v.
Cook, 63 N. J. Eq. 624, 52 Atl. 1001;
Preston v. Howk, 3 App. Div. 43, 37
N. Y. S. 1079, 74 N. Y. St. 426; In
re Bryson’s Estate, 7 Pa. Super. Ct.
624; Guild v. Allen, 28 R. I. 430, 67
Atl. 855; McAllister v. McAllister, 46
Vt. 272; Reformed Presbyterian
Church v. McMillan, 31 Wash. 643,
72 Pac. 502; Wilson v. Perry, 29 W.
Va. 169, 1 S. E. 302.

95 Auch’s Succession, 39 La. Ann.
1043, 3 So. 227.

96 See post, ch. 30, § 721.

971 Jarman Wills 336.

981 Jarman Wills (5th ed.) 269.
See also Dulany v. Middleton, 72 Ma.
67, 19 Atl. 146; In re Brown, 154 N.
Y. 313, 48 N. E. 537.

99 Dunn v. Cory, 56 N. J. Eq. 507,
§ 191 WILLS - 168
time of making it, the number of the donees is certain, and the
share each is to receive is also certain, and in no way dependent
for its amount upon the members who shall survive.*

The question as to whether a testator provided for a number of
persons as a class, or as individuals constituting a class, is one of
intention.*, Where a will creates different classes of persons to
share in the property each class will be treated as a unit in the
distribution thereof.*

Care should be exercised in making a gift to a class that it does
not violate the rule against perpetuities. If the gift is to such of
the grandchildren of the testator as reach an age over 21 years,
the gift is bad, although the testator has grandchildren living at
his death ;* but such a gift is good if the vesting is not postponed
to a time after the grandchildren become of age. “Where a
devise is given to a class of persons answering a given descrip-
tion, and any member of that class may possibly have to be ascer-
tained at a period exceeding the limits allowed by law, the whole
devise is void.’’®

§ 191. Language denoting gift to class—Whether a de-
vise or bequest in a will is to a class or to individuals as tenants
in common must depend on the language employed by the testator
in making the gift.7_ All the provisions of the will may be con-
sulted, and sometimes aid may be sought from the situation and
relation of the parties. It is by no means an easy matter to form-
ulate language necessary to constitute a gift to a class, and unless
the language employed discloses an intention to create a class, the
beneficiaries will take individually.®

39 Atl. 368; Palmer v. Dunham, 125
N. Y. 68, 25 N. E. 1081; In re Mor-
rison’s Estate, 139 Pa. St. 306, 20
Atl. 1057.

1Staples v. Mead, 152 App. Div.
745, 137 N. Y. S. 847.

2Kent v. Kent, 106 Va. 199, 55 S.
E, 564.

3 Ruggles v. Randall, 70 Conn. 44,
38 Atl. 885; Plummer v. Shephard,
94 Md. 466, 51 Atl. 173; Records vy

Fields, 155 Mo. 314, 55 S. W. 1021.
4Edgerly v. Barker, 66 N. H. 434,
31 Atl. 900, 28 L. R. A. 328.
5 Woodruff v. Pleasants, 81 Va. 37.
6 Hills v. Simonds, 125 Mass. 536.
7 Mobley v. Mobley, 85 S. Car. 319,
67 S. E. 556; Saunders v. Saunders,
109 Va. 191, 63 S. E. 410. |
£In re Russell, 168 N. Y. 169, 61
N. E, 166.
169 DESIGNATING BENEFICIARIES AND THEIR SHARES § 191

Gifts to a class are usually made under such general terms as
“children,” grandchildren,” “brothers and sisters,” “nephews and
nieces,” and the like; but they may be made under such technical
terms as “heirs,” “descendants,” “issue” and ‘“‘family.”® A gift
to a class may be constituted by making the gift to the children of
‘a son,*® or to heirs,** or by a direction to the executor to dis-
tribute the residue “under the intestate laws” of a certain state.**
But when the persons to whom a legacy is given are not described
as a class, but by their individual names—though they may con-
stitute a class—the death of any one of them, before the testator,
has been said to cause a lapse of the legacy intended for the lega-
tee so dying.¥

Where the beneficiaries are designated by such words as “chil-
dren” or “nephews,” without indicating individuals by name or
by description, the gift will be treated as one to a class;** but
where the gift is made to persons who are designated individ-
ually, as by name or description, or where the property is devised
severally to a number of persons, the gift is not one to a class,
since the share of each does not depend upon the ultimate number
of those who compose the class.** If a number of beneficiaries
are indicated by name, and also by reference to the class to which
they belong, the gift is prima facie a distributive gift and not a
gift to a class.*° There can be no survivorship in such cases.*”
But where it clearly appears that the names were added to the de-

9In re Logan, 131 N. Y. 456.

10 Bethel v. Mayor, 68 S. W. 631,
24 Ky. L. 398; Gates v. Seibert, 157
Mo. 254, 57 S. W. 1065, 80 Am. St.
625; Trenton Trust &c. Co. v. Sib-
bits, 62 N. J. Eq. 131, 49 Atl. 530.

11 Plummer v. Shepherd, 94 Md.
466, 51 Atl. 173.

12In re McGovran’s Estate, 190 Pa.
St. 375, 42 Atl. 705.

13 Workman v. Workman, 2 Allen
(Mass.) 472.

14Dryer v. Crawford, 90 Ala. 131,
7 So. 445; Pendleton v. Kinney, 65
Conn. 222, 32 Atl. 331.

15 Sturgis v. Work, 122 Ind. 134, -
22 N. E. 996, 17 Am. St. 349; Horton
vy. Earle, 162 Mass. 448, 38 N. E.
1135; In re Markle’s Estate, 187 Pa.
St. 639, 41 Atl. 304.

16 Bill v. Payne, 62 Conn. 140, 25
Atl. 354; Frost v. Courtis, 167 Mass.
251, 45 N. E. 687; Dildine v. Dildine,
32 N..J. Eq. 78; Moffett v. Elmen-
dorf, 152 N. Y. 475, 46 N. E. 845, 57
Am. St. 529.

17 Hoppock v. Tucker, 59 N. Y.
202; Wildberger v. Cheek, 94 Va. 517,
27 S. E. 441,
§ 192 WILLS 170
scription for the purpose of greater certainty the gift will be
treated as one to a class."*

Where one of the persons who is to take with the class is
named, and the others are uncertain in number, to be ascertained
in the future, the share of each being dependent upon the actual
number, the devise is to a class as a body of persons, and not to
individuals, unless the will or the attendant circumstances require
a different construction.*® Where the language used indicates
that the number of persons who are to take and the amounts of
their shares are uncertain until the gift takes effect, the benefi-
ciaries will generally take as a class;*° while if the number of
beneficiaries and the amounts of their shares are certain at the
time of making the will, the gift will generally go to the individ-
ual beneficiaries distributively.”

Where there is no gift, but a direction to pay and divide at a
future time or on a given event, the vesting will be postponed
until the time appointed for the division or the happening of the
specified event; unless a contrary intent can be collected from the
whole will. And where legacies are given to a class, all are
deemed to be included who answer the description at the time the
legacy is payable, so that where the legacy is payable at a future
time, those who come into being intermediate the death of the
testator and between the time of payment, and answer the de-
scription, take as independent objects.”?

§ 192. Time of determination of class.—Where a devise
is made to a class, and there is nothing in the will showing a con-
trary intention, the numbers of the class will be determined upon

18 Bowles v. Smith, 39 Conn. 217;
Springer v. Congelton, 30 Ga. 976;
Stedman v. Priest, 103 Mass. 293;
Rixey v. Stuckey, 129 Mo. 377, 31 S.
W. 770.

19 Davis v. Sanders, 123 Ga. 177, 51
S. E. 298.

20Fulghum v. Strickland, 123 Ga.
258, 51 S. E. 294; Matter of Raab,
79 Misc. 185, 139 N. Y. S. 869.

21In re Henderson, 161 Cal. 353,
119 Pac. 496; Staples v. Mead, 152
App. Div. 745, 137 N. Y. S. 847; In re
Spang’s Estate, 49 Pa. Super. Ct. 314.

22 Jones’ Appeal, 48 Conn. 60; Kil-
patrick v. Barron, 125 N. Y. 751, 26
N. E. 925, 4 Silvernail Ct. App. 347;
Teed v. Morton, 60 N. Y. 502; Cog-
gin’s Appeal, 124 Pa. St. 10, 16 Atl.
579, 10 Am. St. 565.
171 § 192

DESIGNATING BENEFICIARIES AND THEIR SHARES
the death of the testator.” If the‘time of determining the class
is at the death of the testator, only the persons answering the
description at that time will be included.** ‘Speaking generally,
when a gift is made to a class to take effect in possession immedi-
ately, those who constitute the class at the death of the testator,
when the will becomes operative, take unless a different intent
appears from the will, or from such extrinsic circumstances as
may be properly taken into account.”

Unless there is something in the will showing a contrary inten-
tion, a gift to a class would seem to exclude those dying before
the death of the testator,?* and to include those born after the exe-
cution of the will.?’ Where the members of a class are to be de-
termined at the death of the testator, those who have died before
the death of the testator can not be counted in the class, so that
the devise will inure to their heirs or representatives.”*

The will may expressly, or by necessary implication, fix the
time when the members of a class are to be ascertained at a time
other than the testator’s death.”® Thus the time of ascertainment
may be fixed as of the date of the execution of the will by making
a devise to the members of a class living at the date of the execu-
tion of the will®° The time of ascertainment may also be fixed

23 Lancaster v. Lancaster, 187 Iil,
540, 58 N. E. 462, 79 Am. St. 234;
Morgan v: Robbins, 152 Ind. 362, 53
N. E. 283; In re Nicholson’s Will,
115 Iowa 493, 88 N. W. 1064, 91 Am.
St. 175; Hooper v. Smith, 88 Md. 577,
41 Atl. 1095: Merriam v. Simonds,
121 Mass. 198; Worcester v. Worces-
ter, 101 Mass. 128; Campbell v. Raw-
don, 18 N. Y. 412.

24 Parker v. Churchill, 104 Ga. 122,
30 S. E. 642; Ingraham v. Ingraham,
169 Ill. 432, 48 N. E. 561, 49 N. E.
320; Pierce v. Knight, 182 Mass. 72,
64.N. E.. 692.

25 Howland v. Slade, 155 Mass. 415,
29 N. E. 631.

26 Martin v. Trustee, 98 Ga. 320, 25
S. E. 522; Downing v. Nicholson, 115
Towa 493, 88 N. W. 1064, 91 Am.’ St.

175; Howland v. Slade, 155 Mass.
415, 29 N. E. 631; Walker v. John-
ston, 70 N. Car. 576.

27 Gray v. Pash, 66 S. W. 1026, 24
Ky. L. 963; Chase v. Lockerman, 11
Gill & J. (Md.) 185, 55 Am. Dec.
277; Coggins v. Flythe, 113 N. Car.
102, 18 S. E. 96.

28 Hoadly v. Wood, 71 Conn. 452,
42 Atl. 263; Buzby v. Roberts, 53 N.
J. Eq. 566, 32 Atl. 9; In re Striewig’s
Estate, 169 Pa. St. 61, 32 Atl. 83;
Chase v. Peckham, 17 R. I. 385, 22
Atl. 285.

29 In re Swenson’s Estate, 55 Minn.
300, 56 N. W. 1115.

30In re Wood, L. R. 1894, 3 Ch.
381. See also Palmer v. Dunham,
125 N. Y. 68, 25 N. E. 1081; In re
Morrison’s Estate, 139 Pa. St. 306,
§ 193 WILLS 172

at a date subsequent to the death of the testator, as long as the
time so fixed is not so remote as to violate the rule against perpe-
tuities. Thus where the class is to take the remainder of a partic-
ular estate devised, the time of ascertainment is not of the testa-
tor’s death, but at the expiration of the particular estate.** Where
a devise is given to a class of persons answering a given descrip-
tion, and any member of that class may possibly have to be ascer-
tained at a period exceeding the limits allowed by law, the whole
devise is void.** If the period of distribution is postponed until
the attainment of a given age by children, or their marriage, the
determination of the class is the time when the first child attains
the age named or is married, as the case may be.*

Where there is a simple devise to a class, and the will does not
expressly, or by necessary implication, fix the time when the ob-
jects of the gift are to be ascertained or when distribution is to be
made, the law itself will fix it at the testator’s death, that being
the time when the will first speaks.** The wish of the testator
with reference to the time at which the members of the class are
to be ascertained, should be clearly expressed, else they will be
deemed to be those who answer its description at the time the gift
takes effect.**

§ 193. Persons included in gift to class.—In cases of gifts
to classes, persons dying before the time when the class is deter-
mined are excluded from the gift,** and those born after the will
was made are included,*’ unless there is something in the will that
clearly indicates a contrary intention.*®

20 Atl. 1057; Dunn v. Cory, 56 N. J. v. Osborn, 118 Ill. 403, 9 N. E. 210.
Eq. 507, 39 Atl. 368. 24 McCartney v. Osborn, 118 III.

31Inge v. Jones, 109 Ala. 175, 19
So. 435; Madison v. Larmon, 170 Ill,
65, 48 N. E. 556, 62 Am. St. 356;
Hemenway v. Hemenway, 171 Mass.
42, 50 N. E. 456; Patchen v. Patchen,
121 N. Y. 432, 24 N. E. 695; Blass v.
Helms, 93 Tenn. 166, 23 S. W. 138.

32 Hills v. Simonds, 125 Mass. 536.

33 Hubbard v. Lloyd, 6 Cush. (60
Mass.) 523, 53 Am. Dec. 55; Tucker
v. Bishop, 16 N. Y. 402; McCartney

403, 9 N. E. 210.

35 Jones’ Appeal, 48 Conn. 60; Ste-
venson v. Lesley, 70 N. Y. 512.

36 Fulghum v. Strickland, 123 Ga.
258, 51 S. E. 294; Watkins v. Blount,
43 Tex. Civ. App. 460, 94 S. W. 1116.

37 Chase v. Lockerman, 11 Gill & J.
(Md.) 185, 35 Am. Dec. 277; Cog-
gins v. Flythe, 113 N. Car. 102, 18 S.
E, 96. :

88 Morse v. Mason, 11 Allen (93
173 DESIGNATING BENEFICIARIES AND THEIR SHARES § 193

Unless the testator expressly states or clearly creates an infer-
ence to the contrary, children born after the period fixed for the
distribution are not included in the gift,®® although the gift be to
children “born or to be born.”** Nor are children adopted after
the execution of the will included in a gift to “children.”
Where the gift is to a class and it fails as to one of the class be-
cause of death, revocation, or any other cause, the survivors of
the class will take.** A bequest to a class does not include persons
dead before the making of a will, who, had they survived until
that time, would have fallen within the description given to a
class.**

The general rule is that, in a devise to children as a class, the
word “children” is to be construed as immediate offspring, and
will not include grandchildren or issue generally.** But where
the testator used the word “children” when he had only grand-
children, the word children will be construed according to his in-
tention, as meaning his grandchildren ;** and this construction will
also be given where it is clear that the testator uses the words
“children” and “issue” indiscriminately.**

In many cases of bequest or devise to a class, where the person
or persons entitled to the benefit are to be determined on the hap-
pening of some particular event, the courts have included a child
en ventre sa mere when the event actually occurred. This result

is reached when the devise or

Mass.) 36; Jones v. Hunt, 96 Tenn.
369, 34 S. W. 693; Board &c. Fair-
field v. Ladd, 26 Ohio St. 210.

39 State v. Raughley, 1 Houst.
(Del.) 561; Fosdick v. Fosdick, 6 Al-
len (Mass.) 41.

40 Brown v. Williams, 5 R. I. 309.

42 Russell v. Russell, 84 Ala. 48, 3
So. 900.

43 Saunders v. Saunders, 109 Va.
191, 63 S. E. 410.

44Pimel v. Betjemann, 183 N. Y.
194, 76 N. E. 157,2 L. R. A. (N. S.)
580.

45 Fulghum v. Strickland, 123 Ga.
258, 51 S. E. 294; Pugh v. Pugh, 105

bequest runs to “children” or

Ind. 552, 5 N. E. 673; Tayloe v.
Mosher, 29 Md. 443; Tucker v.
Stites, 39 Miss. 196; In re Hunt’s
Estate, 133 Pa. St. 260, 19 Atl. 548,
19 Am. St. 640.

46In re Schedel, 73 Cal. 594, 15
Pac. 297; Moon v. Stone, 19 Grat.
(Va.) 130.

47 Miller v. Carlisle, 90 Ky. 205, 14
S. W. 75, 12 Ky. L. 66; Houghton v.
Kendall, 7 Allen (Mass.) 72; In re
Paton, 111 N. Y. 480, 18 N. E. 625;
Douglas v. James, 66 Vt. 21, 28 Atl.
319, 44 Am. St. 817; Otterback - v.
Bohrer, 87 Va. 548, 12 S. E. 1013.
§ 194 WILLS 174
“grandchildren” as a class,** to a “‘son,”** or to one living at the
particular time." In other cases such children have been in-
cluded when the words were “issue then living,’’** one “born” to
A, if B “hath no son,” or “sons born and begotten.’’*

Generally speaking, a gift to “children” as a class includes only
those who are legitimate,** unless the surrounding circumstances
show a strong probability that the testator intended to include ille-
gitimate children.”

Likewise a gift to “children” as a class does not include step-
children of the testator.°° |

§ 194. Shares or portions in general—The courts will
look to the language of the will and the surrounding facts and
circumstances in determining the shares or portions to which the
beneficiaries are entitled,’ and they will favor a construction that
produces equality rather than one that produces inequality,°* and,
unless the testator clearly expressed an intention to dispose of
his property otherwise, an interpretation which will cause the

. ‘property to be distributed more nearly in accordance with the
law will be given.” It will not be presumed that the testator in-
tended to prefer one of the beneficiaries to others, unless his in-
tention to do so appears from a fair reading of the will.°°

48 Knorr v. Millard, 57 Mich. 265,
23 N. W. 807; Swift v. Duffield, 5
Serg. & R. (Pa.) 38. -

49 Stedfast v. Nicoll, 3 Johns. Cas.
(N. Y.) 18.

50 Randolph v. Randolph, 40 N. J.
Eq. 73.

51 Laird’s Appeal, 85 Pa. St. 339;
Barker v. Pearce, 30 Pa. St. 173, 72
Am. Dec. 691.°

52 Blackburn v. Stables, 2 Ves. & B.
367.

53 Whitelock v. Heddon, 1 Bos. &
P, 243,

54Flora v. Anderson, 67 Fed. 182;
Adams v. Adams, 154 Mass. 290, 28
N. E. 260, 13 L. R. A. 275.

55In re Du Bochet, 70 L. J. Ch.
647.

56 Carroll v. Carroll, 20 Tex. 731.

57 Tn re De Bernal, 165 Cal. 223, 131
Pac. 375, Ann. Cas. 1914.D, 26; Jor-
dan v. Miller, 47 Ga. 346; Flynn v.
Holman, 119 Iowa 731, 94 N. W. 447;
Dowell v. Workman, 78 S. W. 857, 25
Ky L. 1761; Barbo v. Jeru, 155 Mich.
353, 119 N. W. 580; Leggett v. Ste-
vens, 185 N. Y. 70, 77 N. E. .874;
Jones v. Myatt, 153 N. Car. 225, 69
S. E. 135; In re Middleton’s Estate,
212 Pa. 119, 61 Atl. 808; In re Ehlers’
Will, 155 Wis. 46, 143 N. W. 1050.

58 Southgate v. Karp, 154 Mich. 697,
118 N. W. 600.
59 Williams’
865, 61 So. 852.

60 Cornwall v. Hill (Ky.), 117. S.
W. 311.,

Succession, 132 La.
175  DESIGNATING BENEFICIARIES AND THEIR SHARES § 194

But where the will shows a clear intention of the testator that
his property should be given to the beneficiaries in equal or un-
equal shares, the courts give effect to such intention without ref-
erence to the statute of descent and distribution.*! Thus where
the language of the will, when construed in connection with the
surrounding facts and circumstances, indicate that the testator
intended an unequal disposition of his property among the benefi-
ciaries, the construction will conform to the testator’s intention.®”

Where shares are once given in positive and decisive language,
the rule of construction is that they can not be cut down, limited
or diminished by subsequent vague and general expressions.
But a direction to divide property equally among beneficiaries
may be so far modified by a subsequent clause clearly directing its
division per stirpes that the provision for equality of division will
be wholly nullified.°* Where the beneficiaries in a will stand in
different degrees of relationship to each other, the presumption
ordinarily is that the two classes should not be benefited equally,
unless the intention to do so can be clearly gathered from the
whole will.°° Where, in a legacy to more than one person, there
is no definition of the proportions in which they are to take, they
take equally.°* It is a well established rule of law, that a devise
to “heirs” whether it be to the testator’s own heirs or to the heirs.
of a third person, designates not only the persons who are to take,
but also the manner and proportions in which they are to take;
and that, when there are no words to control the presumption of

61 Howard v. Howard, 30 Ala. 391;
McCartney v. Osburn, 118 Ill. 403, 9
N. E. 210; West v. Rassmann, 135 Ind.
278, 34 N. E. 991; McQueen v. Lilly,
131 Mo. 9, 31 S. W. 1043; Bodine v.
Brown, 154 N. Y. 778, 49 N. E. 1093.

62 American Board &c. Foreign
Mission v. Ferry, 15 Fed. 696; Brown
v. Weaver, 28 Ga. 377; Leffingwell
v. Bentley, 74 Ill. App. 292; Hurley
v. Rosensteel, 104 Md. 262, 64 Atl.
1041; Ellis v. Granger, 22 Misc. 656,
50 N. Y. S. 1113; Meiners v. Meiners,
179 Mo. 614, 78 S. W. 795; Nelson v.

Moore, 36 N. Car. 31; Newbold v.
Boone, 52 Pa. St. 167.

63 Simmons -v. Simmons, 73 Ala.
235; Haines v. Christie, 28 Colo. 502,
66 Pac. 883; Brown v. Weaver, 28
Ga. 377; Hawes v. Kepley, 28 Ind.
App. 306, 62 N. E. 720; Cooper v.
Heatherton, 65 App. Div. 561, 73 N.
Y. S. 14.

64 Fields v. Fields, 93 Ky. 619, 20
S. W. 1042, 14 Ky. L. 865.

65 Bayley v. Lawrence, 118 N. Y. S.
286.

66 In re Helling, 84 Misc. 684, 147
N. Y. S. 799.
§ 195 WILLS 176
the will of the testator, the law presumes his intention to be, that
they shall take as heirs would take by the rule of descent. Such
presumption, however, will easily be controlled by any words in
the will indicating a different intention of the testator; as if,
after a devise to “heirs,” it be added, “in equal shares,” or “share
and share alike,” or “to them and each of them,” or “equally to be
divided,” or any equivalent words indicating an equal division,
then they will take per capita each in his own right. But when
there are no such words, the presumption is, that the testator re-
ferred to the familiar law of descent and distribution, to regulate
the distribution of his bequest.°° The wish of the testator re-
specting the manner of taking and the proportions given should
be expressed in appropriate words. Thus “taking by representa-
tion,” “substitution,” “per stirpes,” and “per capita,” are terms
frequently used.

”

§ 195. Per capita and per stirpes.—As a general rule,
where a gift is made to two or more named persons, they will take
per capita.®® Also where a gift is made to a class whose members
stand in equal degree of relationship to the testator they take per
capita and not per stirpes,”° but where the degree of relationship
is unequal or the right depends upon representation™ or by oper-
ation of the law of descents and distributions,” they take per
stirpes.”

It has been held that a gift to a person described as standing in
a certain relation to the testator and to the heirs of another person

67 Daggett v. Slack, 8 Metc.
(Mass.) 450.

68 See post, ch. 30.

com v. Haynes, 14 Allen (Mass.)
204.
71 Haas v. Atkinson, 9 Mackey (D.

69 Follansbee v. Follansbee, 7 App.
D. C. 282; De Laurencel v. De
Boom, 67 Cal. 362, 7 Pac. 758; Post
v. Jackson, 70 Conn. 283, 39 Atl. 151;
Almand v. Whitaker, 113 Ga. 889, 39
S. E. 395; Kean’s Lessee v. Hof-
fecker, 2 Har. (Del.) 103, 29 Am.
Dec. 336.

70 McIntire v. McIntire, 192 U. S.
116, 48 L. ed. 369, 24 Sup. Ct. 196;
Huggins v. Huggins, 72 Ga. 825; Bal-

C.) 537; Lyon v. Acker, 33 Conn. 222;
MacLean v. Williams, 116 Ga. 257, 42
S. E. 485, 59 L. R. A. 125.

72 Ruggles v. Randall, 70 Conn. 44,
38 Atl. 885.

73 Atkins v. Guice, 21 Ark. 164; °
Kidwell v. Ketler, 146 Cal. 12, 79 Pac.
514; Jackson v. Alsop, 67 Conn. 249,
34 Atl. 1106; Ramsey v. Stephenson,
34 Ore, 408, 56 Pac. 520, 57 Pac. 195.
177 DESIGNATING BENEFICIARIES AND THEIR SHARES § 195
standing in the same relation to him, imports an intention on the
part of the testator that the persons named and described shall
take per stirpes; while the general rule is that a gift to a person
described as standing in a certain relation to the testator and to
the children of another standing in the same relation imports an
intention that the legatees shall take per capita.™* A per capita
distribution is often indicated by the use of language denoting
equality of distribution, such, for example, as “equally divided”
or to be divided “share and share alike,”’’® and such words may be
applied to a division between classes as well as individuals.”®
“Under a gift to descendants, equally, it is clear that the issue of
every degree are entitled per capita, i. e., each individual of the
stock takes an equal share concurrently with, not in place of, his
or her parent. And even where the gift is to descendants simply,
it seems that the same mode of distribution prevails; unless the
context indicates that the testator had a distribution per stirpes
in his view.”"7 But where there is a provision in the will, that
they shall take by way of representation, this implies that they
shall take per stirpes and not per capita.”

In the absence of any intention to the contrary appearing on
the face of the will, the general rule is that all take per capita
rather than per stirpes under a gift to the children of several per-
sons.”

Where the gift is to “heirs,” “heirs at law” or “legal heirs,” the
law presumes an intention on the part of the testator that the ben-

74In re Griswold, 42 Misc. 230, 86
N. Y. S. 250.

75 Ballentine v. Foster, 128 Ala. 638,
30 So. 481; Almand v. Whitaker, 113
Ga. 889, 39 S. E. 395; Henry v.
Thomas, 118 Ind. 23, 20 N. E. 519;
White v. White, 150 Ky. 283, 150 S.
W. 388.

76 Laisure v. Richards, 56 Ind. App.
301, 103 N. E. 679; Coates v. Burton,
191 Mass. 180, 77 N. E. 311; Records
y. Fields, 155 Mo. 314, 55 S. W. 1021.

77 Jarman Wills (6th ed. Big.),
#945. See also Rood Wills, § 446;
Theobald Wills (Sth ed.), 294;

12—Tuomp. WILLS.

Farmer v. Kimball, 46 N. H. 435, 88
Am. Dec. 219.

78 Rowland v. Gorsuch, 2 Cox Ch.
187.

792 Jarman Wills (6th ed. 1711);
Mayer v. Hover, 81 Ga. 308, 7 S. E.
562; Butler v. Butler, 97 Ky. 136, 30
S. W. 4, 17 Ky. L. 129; Allen’s Suc-
cession, 48 La. Ann. 1036, 20 So. 193,
55 Am. St. 295; Townsend v. Town-
send, 156 Mass. 454, 31 N. E. 632; In
re Keogh, 112 App. Div. 414, 98 N.
Y. S. 433; Jones v. Paschall, 36 N.
Car. 430; In re Ihre, 162 Pa. St. 369,
29 Atl. 450.
§ 195

WILLS

173

eficiaries take per stirpes;*° but this presumption may be con-
trolled by the use of words indicating an equal division of the

property among all the beneficiaries thus designated.**

“But

when there are no such words, the presumption is, that the testa-
tor referred to the familiar law of descents and distributions, to
regulate the distribution of his bequest.’”*?

80 MacLean v. Williams, 116 Ga.
257, 42 S. E. 485, 59 L. R. A. 125; Do-
herty v. Grady, 105 Maine 36, 72 Atl.
869; McClench v. Waldron, 204 Mass.
554, 91 N. E. 126; Rasquin v. Ha-
mersley, 152 App. Div. 522, 137 N. Y.
S. 578; Lee v. Baird, 132 N. Car. 755,
44 S. E. 605; In re Crawford’s Estate,
17 Pa. Super. Ct. 170; Nightingale v.
Phillips, 29 R. I. 175, 72 Atl. 220;
Hodges v. Phelps, 65 Vt. 303, 26 Atl.
625,

81 Auger v. Tatham, 191 Ill, 296, 61
N. E. 77; Kalbach v. Clark, 133
Towa 215, 110 N. W. 599, 12 L. R.
A. (N. S.) 801, 12 Ann. Cas. 647;
Doherty v. Grady, 105 Maine 36, 72
Atl. 869; Maguire v. Moore, 108 Mo.
267, 18 S. W. 897; Mooney v. Pur-
pus, 70 Ohio St. 57, 70 N. E. 894;
Ramsey v. Stephenson, 34 Ore. 408,
56 Pac. 520, 57 Pac. 195.

82 Daggett v. Slack,
(Mass.) 450,

8 Metc.
CHAPTER XI

LANGUAGE DESCRIPTIVE OF PROPERTY DEVISED OR BEQUEATHED

SECTION SECTION
200. Failure to describe property. 213. Rents, income, and profits of
201. Certainty of description. real estate.
202.°Conflicting and repugnant de- 214, What words will carry personal
scriptions. property.
203. False and erroneous descrip- 215. Money and cash.
tions. 216. Goods and chattels.
204. Language passing entire estate. 217. Furniture, household furniture
205. Share, part or portion. and household goods.
206. After-acquired property. 218. Stock.
207. Estate. 219. Bonds, mortgages, and securi-
208. Property. ties.
209. Effects. 220. Notes, accounts, and choses in
210. Description of real estate in gen- action.
eral, 221. Insurance.
211. What words will carry real 222. Interest, income, or profits of
property. personal property.
212. Particular descriptions of real
estate.

§ 200. Failure to describe property——The making of a
will naturally imports an intention to make a testamentary dispo-
sition of property. But the intention is one thing and its execu-
tion is quite another. In cases where the language of wills has
been inexact or ambiguous, the courts have frequently transposed
or inserted words or phrases or even left out or inserted provi-
sions in order to effectuate an intent that was with reasonable
certainty to be gathered from the context of the whole instru-
ment. But the courts have no power to import into a will new
provisions which are designed to create a testamentary disposi-
tion which is neither expressed nor necessarily to be implied. So
a will which utterly fails to mention, much less identify, any gift,
devise, or legacy is fatally defective.’

i Aberorombic v. Abercrombie, 27 34 N. W. 427; Dreyer v. Reisman,

Ala. 489; Willis v. Jenkins, 30 Ga. 202 N. Y. 476, 96 N. E. 90.
167; Christy v. Badger, 72 Iowa 581,

179
§ 201 WILLS 180
This doctrine is especially applicable to the effect of the failure
to designate the subject-matter of the gift, and in accordance
with this general rule as to omissions, it is held that a devise or
bequest left blank as to the subject-matter fails for uncertainty,
and the omission can not be supplied by parol proof of the testa-
tor’s intention in that regard.? Thus where the legacy provided
for “the sums of money stated after each name, to wit: to Rev.
Father Griffin, ; to Rev. Father Chappal, ; to Hetty
Shields, .” the gift was held to fail for uncertainty.’

§ 201. Certainty of description—While in most jurisdic-
tions reasonable certainty in the description of the property to be
devised or bequeathed is all that is necessary, yet enough care.
“should be taken to leave no doubt as to the testator’s intention.
Language that is apt to- give rise to ambiguity in the description
should be always avoided. If the description is insufficient to
identify the property given there can be nothing added that will
make it good. Extrinsic circumstances can not be resorted to for
the purpose of importing into a will any intention not therein
expressed. So if the description is wholly false, or so defective
that the property can not be identified with the aid of such light
as the testator’s situation throws on the will, the gift must fail for
uncertainty.* Thus a bequest to a person named of “a few ori-
ental rugs to be selected by her” was held void for uncertainty.®

An examination of the adjudicated cases shows great care-
lessness on the part of testators in the matter of description, and
in many cases the courts encounter much difficulty in determining
the exact property that the testator intended to be included in his
gift. The rule of construction usually applied is that, the prop-
erty will be adjudged sufficiently described if the description
given in the will furnish means of identifying it. The meaning

 

 

 

2Dreyer v. Reisman, 202 N. Y.
476, 96 N. E. 90.

3 Harris v. Pue, 39 Md. 535.

4 Williams v. Williams, 189 Il. 500,
59 N. E. 966; Sturgis v. Work, 122
Ind. 134, 22 N. E. 996, 17 Am. St.
394; McGovern v. McGovern, 75
Minn, 314, 77 N. W. 970.

5 Case v. Hasse, 83 N. J. Eq. 170, 93
Atl. 728.

6In re Traylor, 81 Cal. 9, 22 Pac.
297, 15 Am. St. 17; Nelson v. Pom-
eroy, 64 Conn. 257, 29 Atl. 534;
Drane v. Beall, 21 Ga. 21; Dee v.
Dee, 212 Ill. 338, 72 N. E. 429; Tay-
lor v. Taylor, 174 Ind. 670, 93 N. E.
181 DESCRIPTION OF DEVISE OR BEQUEST § 202
of the language used and the property to which it refers may be

shown by parol evidence.’

§ 202. Conflicting and repugnant descriptions.—Gifts by
words of general description will not be limited by subsequent at-
tempts at particular description, unless such appears to be the in-
tention of the testator. Where the property intended to be given
is described in different ways which do not agree, and some of
the property answers all the descriptions and some answers a part
only, the expressions will be understood as restrictive, and only
that property will pass which answers all the descriptions? __

Where the property intended to be given is described in such
distinct and explicit terms that it can not, without inconsistency.
admit of the qualification resulting from the subsequent partial
description, and that partial description seems, upon its face,
rather designed as an additional description of the same property
than as intended as.a-qualification, such partial description will be
rejected for its inconsistency with other parts of the description.*°
A perfect description which fully ascertains the corpus is not to
be defeated by the addition of a further and false description.**
The general rule is that if the several descriptions do not corre-
spond, and appear not to have been intended to restrict each other,
the one is to be taken which is the least liable to have been mis-
taken."? Ordinarily a description of the premises by the name by

9; Allen’s Succession, 48 La. Ann. 8 Chace v. Lamphere, 148 N. Y. 206,

1036, 20 So, 193, 55 Am. St. 295;
Willett v. Carroll, 13 Md. 459; Do-
herty v. O’Hearn, 214 Mass. 290, 101
N. E. 519; Beekman v. Bonsor, 23
N. Y. 298, 80 Am. Dec. 269; Ballan-
tyne v. Turner, 59 N. Car. 224;
Weatherhead v. Sewell, 9 Humph.
(Tenn.) 272; Cresap v. Cresap, 34
W. Va. 310, 12 S. E. 527; Willey v.
Clark, 105 Wis. 22, 80 N. W. 102;
Brewster Maritime Provinces &c.
Mission Board, 2 N. Bruns. Eq. Rep.
172.

7 Cruse v. Cunningham, 79 Ind. 402.

42 N. E. 580; In re Willis’ Will, 25
R, I. 332, 55 Atl. 889.

® Bourke v. Boone, 94 Md. 472, 51
Atl. 396; Webb v. Archabald, 128
Mo. 299, 34 S. W. 54; Peebles v.
Graham, 128 N. Car. 218, 39 S, E. 24.

10 Thomson v. Thomson, 115 Mo.
56, 21 S. W. 1085; Chace v. Lam-
phere, 148 N. Y. 207, 42 N. E. 580.

11 Mayo v. Blount, 23 N. Car. 283.

12 Melvin v. Proprietors, 5 Metc.
(Mass.) 15, 38 Am. Dec. 384; Moran
v. Lezotte, 54 Mich. 83, 19 N. W. 757;
Drew v. Drew, 28 N. H. 489.
§ 203 WILLS 182

which it is commonly known will prevail over any other descrip-
tion.**

§ 203. False and erroneous descriptions.—In arriving at
the intention of the testator, so much as is false in the description
of the premises devised may be stricken out, and if enough re-
mains to identify the premises intended, the will will be sustained
with the false words** eliminated therefrom. So a description,
though false in part, may, with reference to extrinsic circum-
stances, be absolutely certain, or, at least, sufficiently so as to en-
able the court to identify the subject intended; as where a false
description is superseded by one which by itself would have been
correct. To ascertain the intention of the testator, the court
may hear evidence of the circumstances, situation, and surround-
ings of the testator when the will was made, and the state and
description of his property.*° But extrinsic evidence is not ad-
missible to substitute a totally different description of land for
that described in the will.*”

Where the will is entirely devoid of any general description
which can be identified by extrinsic evidence, and the rejection of
a false description leaves the description not merely imperfect but
wholly uncertain, it is wholly void.** As a general rule parol
evidence will not be admitted to reform or correct an erroneous
description in a will caused by a failure on the part of the drafts-
man to follow the instructions given him by the testator respect:
ing such description.*® Where a testator devised the “‘west one-
half” of a certain quarter section “containing about 76 acres,”
when the only land owned by him in that county was 76 acres in
the north one-half of that quarter section, the word “west”? may

13 Thomson v. Thomson, 115 Mo. 17 Patch v. White, 1 Mackay (12
56, 21 S. W. 1085; Drew v. Drew, D.C.) 468.

28 N. H. 489, : 18In re Lynch’s Estate, 142 Cal.
14 Whitcomb v. Rodman, 156 Ill. 373, 75 Pac. 1086.

116, 40 N. E. 553. 19 Hill v. Felton, 47 Ga. 455, 15 Am.
15 Wigram Wills (2d Am. ed.) 144, Rep. 643; Bradley v. Rees, 113 Ill.

147, 327, 55 Am. Rep. 422. But see

16 Pate v. Bushong, 161 Ind. 533, Wheaton v. Pope, 91 Minn. 299, 97
69 N. E. 291, 63 L. R. A: 593, 100 N. W. 1046.
Am. St. 287.
183 DESCRIPTION OF DEVISE OR BEQUEST § 204
be stricken out and the will be given effect as a gift of the 76
acres in the section which he owned, though there is a residuary
clause.*® On the contrary, it has been held that where a will pur-
ported to devise the northeast quarter of a certain section which
the deceased did not own, but he owned the southeast quarter of
the section, and owned no other land, a rejection of the false
description in the will as surplusage, left no description whatever
by which the land intended to be devised could be identified, and
the will did not devise the land owned by the testator.**

Where some of the specifications in a description are found to
be false, so much of the property will pass as can be identified by
the aid of both the false and correct specifications given when
‘read in the light of the testator’s situation. Thus if a testator
describe a horse given as his “black horse,” having only a white
one, or devise his “freehold estate,” having only a leasehold
estate, the white horse in the one case and the leasehold estate in
the other will pass.”

§ 204. Language passing entire estate——When a person
makes a will the presumption is that he intends to dispose of his
entire estate, unless the provisions of the will or extrinsic circum-
stances clearly show a contrary intention.” The mere fact of
making a will raises a very strong presumption against any ex-
pectation or desire on the part of the testator of leaving any por-
tion of his estate beyond the operation of his will, and this pre-
sumption obtains though the description of the property be in-
formal and lacking in technical accuracy.**

While no particular form of expression is required to pass the

20 Collins v. Capps, 235 Ill. 560, 85
N. E. 934, 126 Am. St. 232,

21McGovern v. McGovern, 75
Minn. 314, 77 N. W. 970.

22 Patch v. White, 117 U. S. 210,
29 L. ed. 860, 6 Sup. Ct. 617.

23 Vestal v. Garrett, 197 Ill. 398, 64
N. E. 345; Pate v. Bushong, 161 Ind.
533, 69 N. E, 291, 63 L. R. A. 593, 100
Am. St. 287; Willard v. Darrah, 168
Mo. 660, 68 S. W. 1023, 90 Am. St.

468; In re Phillips’ Estate, 205 Pa.
504, 55 Atl. 210; In re Dong’s Estate,
103 Wis. 497, 79 N. W. 768, 74 Am.
St. 885.

24Taubenhau v. Dunz, 125 Ill. 524,
17 N. E. 456; Sites v. Eldridge, 45 N.
J. Eq. 623, 18 Atl. 214, 14 Am. St.
769; In re Sweitzer’s Estate, 142 Pa.
St. 541, 21 Atl. 885; Dempsey v. Tay-
lor, 4 Tex. Civ. App. 126, 23 S. W.
220. :
WILLS .

§ 205 184

whole estate, the intention to do so must be expressed in some
form, and wherever the words used are such as will carry the
whole estate, it will be presumed that the testator intended to dis-
pose of all his property.?*> Where the general gift shows a clear
intention on the part of the testator to dispose of all his property,
a subsequent attempt at an enumeration of the specific articles
owned by the testator does not prevent the entire estate from
passing under the general gift.** A gift of “all my property of
every description,’ or “all the property I possess, real and per-
sonal, movable and immovable,” will pass everything which the
testator has a right to dispose of by will.?* But a gift of all the
personal property of the testator does not include the realty.?°

§ 205. Share, part or portion—The word “share” ordi-
narily means a part or definite portion of a thing owned by a
number of persons in common, and refers to that portion of the
undivided property which belongs to any one of them.®*® The
words “share” and “portion” are equivocal, and may mean im-
mediate gifts, or be descriptive of gifts to be made in the future.**
But it has been held that the word “share” is not equivocal, and
parol evidence is not admissible to. show what was intended.®?
The usual meaning of “share,” when used in a will, is that portion
of the estate which has already been set apart to a legatee, and
becomes such contemporaneously or subsequent to the decease of
the testator, but never antedates such decease,®*

A bequest of the “share” of one beneficiary to another will in-
clude all that the former takes under the will, whether contingent

25 Given v. Hilton, 95 U. S. 591, 21
L. ed. 458; Ferry’s Appeal, 102 Pa.
St. 207; Gallagher v. McKeague, 125
Wis. 116, 103 N. W. 233, 110 Am. St.
821.

26 Sites v. Eldredge, 45 N. J. Eq.
632, 18 Atl. 214, 14 Am. St. 769; In
re Woodside’s Estate, 188 Pa. St. 45,
41 Atl. 475; Dempsey v. Taylor, 4
Tex. Civ. App. 126, 23 S. W. 220.

27 Burton v. Black, 30 Ga. 638.

28 Thomas v. Blair, 111 La. 678, 35
So. 811.

29 Webb v. Webb, 111 Ark. 54, 163
S. W. 1167; Turner v. Balfour, 62
Conn. 89, 25 Atl. 448.

80 Smith v. Terry, 43 N. J. Eq. 659,.
12 Atl. 204.

31 Dougherty v. Thompson, 167 N.
Y. 472, 60 N. E. 760.

32 Armistead vy. Armistead, 32 Ga.
597.

88 Shepard v. Shepard, 60 Vt. 109,
14 Atl. 536,
185 DESCRIPTION OF DEVISE OR BEQUEST § 206
or vested,** and will include the corpus of the estate, but’ not the
income.*® This principle applies whether the gift consists of a
specific legacy or devise or of an interest in property given. gener-
ally.*°

The term “portion” is defined to be that part of the parent’s
estate, or all the estate of one standing in the place of a parent,

which is given to a child.”

§ 206. After-acquired property.—Generally gifts of per-
sonal property pass everything which answers the description
thereof at the death of the testator, unless a different intention is
expressed in the will.** “Should a man bequeath all his estate in
the public funds, all his bank stock, or all his farming stock and
utensils, it would embrace all held at the time of his decease,
whether held at the date of the will or acquired afterward.”®
But if the bequest is of a particular thing, specified and separated
from all other things constituting the testator’s estate, that only
will pass which answers the description at the date of the will.*°
In such case, if the subject of the bequest does not remain in
specie at the time of the testator’s death, the bequest is at an
end.**

As a rule, general words are sufficient to pass after-acquired
real or personal property, and a simple devise or bequest of all
of the testator’s real and personal estate will pass real or personal
property acquired by the testator after the making of his will,
unless a different intention appears by the will.** In some juris-

129

34Eisiminger v. Eisiminger,
Pa. St. 564, 18 Atl. 557.

35 Johnson v. Childs, 61 Conn. 66,
23 Atl. 719.

3¢ Hardman v. Johnson, 3 Mer. 347.

37 Lewis’ Appeal, 108 Pa. St. 133.

38 Wind v. Jekyl, 1 P. Wms. 572;
Briggs v. Briggs, 69 Iowa 617, 29 N.
W. 632; Loveren v. Lamprey, 22 N.
H. 434; Morse v. Macrum, 22 Ore.
229, 29 Pac. 615.

39 Wait v. Belding, 24 Pick.
(Mass.) 129. See also Kimball v.
Ellison, 128 Mass. 41; Briggs v.

Briggs, 69 Iowa 617, 29 N. W. 632.

40 Fidelity Trust Co.’s Appeal, 108
Pa. St. 492, 1 Atl. 233.

41JIn re Tillinghast, 23 R. I. 121, 49
Atl. 634,

42 Graham v. De Yampert, 106 Ala.
279, 17-So. 355; Patty v. Goolsby, 51
Ark. 61, 9 S. W. 846; In re O’Gor-
man’s Estate, 161 Cal. 654, 120 Pac.
33; Clayton v. Hallett, 30 Colo. 231,
70 Pac. 429, 59 L. R. A. 407, 97 Am.
St. 117; Dickerson’s Appeal, 55 Conn.
223, 10 Atl. 194, 15 Atl. 99; Woman’s
Union Missionary Soc. v. Mead, 131
Til, 33, 23 N. E. 603; Johnson v.
White, 76 Kans, 159, 90 Pac. 810;
§ 207 WILLS 186
dictions, however, it is held that after-acquired real estate is not
affected by a will in which there is no express reZerence to such
estate, although the description contained in the will is general
and although it might be inferred from the whole will that it was
the intention of the testator to dispose of all of his property.**

Under the statutes of Ohio lands acquired by a testator subse-
quent to the execution of his will, do not pass thereby, unless the
testator’s intention to include therein such after-acquired property
clearly and manifestly appears on the face of the will itself.**

It would seem that the question of passing after-acquired real
estate is always one of intent, and such language should be used
as will clearly express such intent. While a residuary clause may
be all that is necessary to pass such property, yet it is advisable to
specifically mention this species of property.*°

§ 207. Estate.—In legal parlance the word “estate” was
anciently confined to land,*® and meant degree, quantity, or ex-
tent of ownership rather than the land itself. As used in wills,
however, the term is sometimes. held to be synonymous with
“property” when not qualified by the words “real” or “‘per-
sonal” ;** the presumtion being that the testator used the term in
its inclusive signification, unless the context restricts its meaning
to some particular species of property.** When used in a will to
describe property given, the word “estate” will include all of the
property of the testator, both real and personal, unless the term
is limited in meaning by the context.*® But it has been held that

Paine v. Forsaith, 84 Maine 66, 24
Atl. 590; Liggat v. Hart, 23 Mo. 127;

9 Atl. 136; Chapman v. Chick, 81
Maine 109, 16 Atl. 407; Norris v.

Mueller v. Buenger, 184 Mo. 458, 83
S. W. 458, 67 L. R. A. 648, 105 Am.
St. 541; Haley v. Gatewood, 74 Tex.
281, 12 S. W. 25.

43 Webster v. Wiggin, 19 R. I. 73,
31 Atl. 824, 28 L. R. A. 510.

44 Wright v. Masters, 81 Ohio St.
304, 90 N. E. 797, 135 Am. St. 790, 18
Ann. Cas. 165.

45 See post, ch. 30, § 1153.

46 Co, Lit. 345,

47 Warner v. Willard, 54 Conn. 470,

Clark, 10 N. J. Eq. 51.

48 Powell v. Woodcock, 149 N. Car.
235, 62 S. E. 1071.

49 Hilton v. Hilton, 2 MacArthur
(9 D. C.) 70; Warner v. Willard, 54
Conn. 470, 9 Atl. 136; Smith v. Run-
nels, 97 Iowa 55, 65 N. W. 1002;
Chapman v. Chick, 81 Maine 109, 16
Atl. 407; Boston Safe-Deposit &c.
Co. v. Mixter, 146 Mass. 100, 15 N.
E, 141; Andrews v. Brumfield, 32
Miss 107; Shumate v. Bailey, 110 Mo.
§ 208

187 DESCRIPTION OF DEVISE OR BEQUEST

the use of such a general word as “estate” means one species of
property only, and that it does not always mean both real and per-
sonal property.°° When the term is intended to apply to real
property, it may either express the quantity of interest devised
or designate the thing devised or both.™

If it is the wish of the testator to include both real and personal
property in his gift the words “real” and “personal” should be
‘used in connection with the word “estate,” and thereby avoid all
possible doubt.

§ 208. Property.—The term “property,” when used in its
most comprehensive sense, signifies every species of property
which goes to make up one’s wealth or estate, but when used in a
will directing the disposition of the testator’s property, will in-
clude both real and personal property, unless restricted in its
meaning by the context.°* And unless a different intention ap-
pears from the context the term includes choses in action,** and
the proceeds of lands subsequently sold by the testator.°* But the
meaning of the word “property,” when used in a will, may be
confined to either personal property” or real property” by the in-
sertion of words which are especially suitable for passing these
particular kinds of property. So where it is the wish of the tes-

411, 20 S. W. 178; Walker v. Hill, 73 611, 8 N. Y. S. 772, 29 N. Y. St. 545;

N. H. 254, 60 Atl. 1017, 10 Prob. Rep.
Ann. 650; Simickson v. Snitcher, 14
N. J. L. 53; Hacker v. Hacker, 153
App. Div. 270, 138 N. Y. S. 194;
Harper v. Harper, 148 N. Car. 453, 62
S. E. 553; Rossetter v. Simmons, 6
Serg. & R. (Pa.) 452; Blewer v.
Brightman, 4 McCord (S. Car.) 60;
Haley v. Gatewood, 74 Tex. 281, 12
S. W. 25; Smith v. Smith, 17 Grat.
(Va.) 268.

50 Giles v. Little, 104 U. S. 291, 26
L. ed. 745; Green v. Hewitt, 97 Il.
113, 37 Am. Rep. 102; Crew v. Dixon,
129 Ind. 85, 27 N. E. 728.

51 Hart v. White, 26 Vt. 260.

52 Fosdick v. Hempstead, 55 Hun

Brawley v. Collins, 88 N. Car. 605;
White v. Commonwealth, 110 Pa. St.
90, 1 Atl. 33; Fry v. Shipley, 94
Tenn. 252, 29 S. W. 6.

53 Cate v. Cranor, 30 Ind. 292;
Fogg v. Clark, 1 N. H. 163; In re
Myers’ Estate, 48 Pa. St. 26; Fry v.
Shipley, 94 Tenn. 252, 29 S. W. 6.

54 Simmons v. Beazel, 125 Ind. 362,
25 .N. E. 344,

55 Peirsol v. Roop, 56 N. J. Eq. 739,
40 Atl. 124; Brawley v. Collins, 88 N.
Car. 605; Howe’s Appeal, 126 Pa. St.
233, 17 Atl. 588.

56 Howland v. Howland, 100 Mass.

.222; Dunham v. Marsh, 52 N. J. Eq.

256, 30 Atl. 473,
188

§ 209 WILLS

tator to confine his gift to either personal or real property, such
language should be used as will carry out the wish of the testator.

§ 209. Effects—The word “effects,” as used in a will, un-
less restricted by the context, prima facie includes the testator’s
personal property only.*’ The term includes all kinds of personal
property, and is more extensive in its operation than the term
“goods,”°8

But the term “effects,” when used in its broadest sense of prop-
erty or worldly substance, may include land, and should be so
construed when it appears from other parts of the will that such
was the testator’s intention.°® In such cases, of course, the scope
of its meaning is measured, not by its own inherent force, but by
the import of the words with reference to which it is used. Thus
where the articles to be included in the gift are referred to as
“furniture, goods, chattels and effects” in one place, and in an-
other as “furniture and moneys or any property,” it was held to
pass the testator’s real estate.°° “It is unsafe to use the term to
describe the gift unless suitable restrictive words are used in con-
nection with it.

§ 210. Description of real estate in general—As a gen-
eral rule technical accuracy in the use of language to describe the
real estate which the testator intended to devise is not required,
if from the whole will it appears that it was his intention to pass.
his interest in the property.** The testator’s intention is the mas-
ter-key which the court will always use to unlock the hidden
meaning of the terms which he has employed. Every case de-
pends upon its own peculiar circumstances, and no uniform rule
of construction can be applied. But technical words are subordi-

57In re Miner, 146 N. Y. 121, 40
N. E. 788; In re Reimer’s Estate, 159
Pa. St. 212, 28 Atl. 186; Martin v.
Osborne, 1 Pickle (85 Tenn.) 420, 3
S. W. 647.

58 Andrews v. Applegate, 223 Ill.
535, 79 N. E. 176, 12 L. R. A. (N. S.)
661; In re Miner, 146 N. Y. 121, 40
N. E. 788.

59 Andrews v. Applegate, 223 IIl,

535, 79 N. E, 176, 12 L. R. A. (N. S.)
661.

60 White v. Keller, 68 Fed. 796;
Ruckle v. Grafflin, 86 Md. 627, 39
Atl. 624; Hall v. Hall, L. R. (1892),
1 Ch. 361.

61 Lindsay v. Wilson, 103 Md. 252,
63 Atl. 566, 2 L. R. A. (N. S.) 408;
Torrey v. Torrey, 70 N. J. L.-672, 59
Atl, 450. :
189 DESCRIPTION OF DEVISE OR BEQUEST § 211
nate to other explanatory and qualifying expressions in the con-
text which disclose the testator’s actual intention ;°? and where a
different meaning is fairly deducible from the whole will, the
technical sense must yield to the apparent intention.

It is not the office of a will to describe the property devised, but
if the language used “furnishes the means of identifying it, it is
sufficient. “So words intrinsically applicable to personal estate
may, by force of the context, be made to include land. This fre-
quently happens where an expression is evidently used as refer-
ential to and synonymous with an anterior word clearly descrip-
tive of real estate, in which case its extent of operation is meas-
ured not by its own inherent strength, but by the import of its
synonym. Even the expression ‘personal estates’ will carry
realty, if the testator has clearly shown his intention that it shall
be so.”

In the absence of anything to the contrary, the testator must be
understood as asserting that he is the owner of the real estate
which he undertakes to devise, though he does not use words indi-
cating that he is the owner.

While no particular words are necessary to pass real estate,
enough must appear to evidence the intention of the testator in
this respect, and words can not be supplied to meet the deficiency,
even though they may have been omitted by what might seem to
be palpable error,®” and where specific mention is made of certain
property, other property not alluded to or covered by general
terms will not pass.

§ 211. What words will carry real property.—The most
comprehensive words of description applicable to real estate are
“tenements” and “hereditaments,” as they include every species

62 Daniel v. Whartenby, 17 Wall.
(U. S.) 639, 21 L. ed. 661; Robert-
son v. Johnson, 24 Ga. 102.

63 Suydam v. Thayer, 94 Mo. 49, 6
S. W. 502.

64 Taylor v. Taylor, 174 Ind. 670, 93
N. E. 9.

65 Gardner Wills, p. 403. See also
Russell v. Elden, 15 Maine 193; Ladd

v. Harvey, 21 N. H. 514; Jones v.
Myatt, 153°N. Car. 225, 69 S. E. 135.

66 Cummins v. Riordon, 84 Kans.
791, 115 Pac. 568.

67 Graham v. Graham, 23 W. Va.
36, 48 Am. Rep. 364.

68 Farish v. Cook, 78 Mo.
Am. Rep. 107.

212, 47
190

§ 211 WILLS

of real property as well corporeal as incorporeal.° The term
“real estate’ includes lands, tenements, and hereditaments,
whether the latter be corporeal or incorporeal.’? The word
“lands” is not so comprehensive as “real estate’ or “tenements
and hereditaments,” as it would not comprehend incorporeal
hereditaments,”* nor would it include an advowson.”

In its primary and technical meaning the word “premises” has
reference to something that goes before or precedes ;* but when
used in a will, it means a separate portion or parcel of land with
all buildings, tenements and other appurtenances on it.* If the
testator uses the term to describe a dwelling house, it will include
not only the garden and land adjacent, with its stables, barns and
out-houses, but whatever else is permanently annexed to the land
devised.”

Other words which operate to pass real estate or interest
therein are such as “‘freehold,’’® “‘house,’’* ‘‘homestead,”7®
“farm,” “home place,’’*® “appurtenances,’’** and the like.

The words “property” and “estate” when used in a general
sense, are always held sufficient to embrace all the testator’s prop-
erty, real as well as personal,*? but when coupled with directions
applicable only to personalty, they will not have this effect, nor
when subsequent particulars clearly indicate that the testator had

only personalty in contemplation.
The word “effects,” though savoring strongly of personalty,

69In re Handley, 208 Pa. 388, 57
Atl. 755.

70 Gillett v. Gaffney, 3 Colo. 351.

712 Jarman Wills, 382; In re
Handley, 208 Pa. 388, 57 Atl. 755.

72 Westfaling v. Westfaling, 3 Atk.
460.

732 BI. Comm. 298.

74Doe v. Willetts, 7 Mann. Gr. &
S. 709.

75 Bowers v. Pomeroy, 21 Ohio St.
184,

76In re Steel, L. R. (1903), 1 Ch.

135, 72 L. J. Ch. 42, 87 L. T. Rep.

(N. S.) 548, 51 Wkly. Rep. 252.
77 Richmond v. State, 5 Ind. 334,

78 Smith v. Dennis, 163 Ill. 631, 45
N. E. 267; Morton v. Morton, 120 Ky.
251, 85 S. W. 1188, 27 Ky. L. 661.

79 Scoville v. Mason, 76 Conn. 459,
57 Atl. 114; Williams’ Succession, 132
La. 865, 61 So. 852. ;

80 Burke vy. Chamberlain, 22 Md.
298.

81 Myers v. Norman, 46 S. W. 214,
20 Ky. L. 343.

82Korn v. Cutler, 26 Conn. 4;
Fogg v. Clark, 1 N. H. 163; Monroe
v. Jones, 8 R. I. 526; Doe, ex dem.
Tofield v. Tofield, 11.East 246.

838 Smith v. Hutchinson, 61 Mo. 83.
§ 212

191 DESCRIPTION OF DEVISE,OR BEQUEST

may, when the context clearly shows the intention, as when used
in connection with the word “real,” be sufficient to pass the land.**

The phrase, “all my worldly goods,” if used without spevific
enumeration, may reasonably be supposed to embrace lands, and
in some instances has been so construed;* but if the attempt is
made at designation, the restricted meaning implied from such
designation will prevail.

§ 212. Particular descriptions of real estate-—The usual
method of describing real estate is by metes and bounds,** and
where this method is employed the devise only passes title to the
land embraced in such description, notwithstanding the fact that
a partial intestacy may result,*? but this rule may be modified by
the context of the will and extrinsic circumstances.** Where the
land is properly described by metes and bounds, and further ref-
erence to it as containing a certain number of acres, the devise
will pass only the land included in the description, and not the
number of acres named,*® whether the tract contains a greater or
a fewer number of acres than the number indicated.”

- In jurisdictions where there are government surveys, the land
may be described by designating the governmental subdivisions,
and the fact that such subdivisions are abbreviated does not create
any uncertainty as to the intention of the testator.°** Where this
method of description is employed care should be exercised to
designate the state, county, township, range, section or part of

84 Page v. Foust, 89 N. Car. 447.

85 Torrey v. Torrey, 70 N. J. L.
672, 59 Atl. 450.

86 Thompson v. Thompson, 87 S.
W. 790, 27 Ky. L. 949; Krechter v.
Grofe, 166 Mo. 385, 66 S. W. 358;
McNally v. McNally, 23 R. I. 108, 49
Atl. 699.

87 Oldham v. York, 99 Tenn. 68, 41
S. W. 333; Chace v. Gregg, 88 Tex.
552, 32 S. W. 520.

88 Benjamin v. Welch, 73 Hun 371,
26 N. Y. S. 156, 55 N. Y. St. 908.

89 Martin v. Erdman, 124 Md. 668,
93 Atl. 212; Higgins v. Dwen, 100 Ill.

554; Priest v. Lackey, 140 Ind. 399,
39 N. E. 54; Cundiff v. Seaton, 49
S. W. 179, 20 Ky. L. 1271; Hobbs v.
Peyson, 85 Maine 498, 27 Atl. 519;
Prickett v. Leonard, 104 N. Car. 326,
10 S. E. 466; Portland Trust Co. v.
Beatie, 32 Ore. 305, 52 Pac. 89;
Jones v. Quattlebaum, 31 S. Car. 606,
9 S. E. 982; Oldham v. York, 99
Tenn. 68, 41 S. W. 333.

20 Cundiff v. Seaton, 49 S. W. 179,
20 Ky. L. 1271.

91 Flynn v. Holman, 119 Iowa 731,
94 N. W. 447.
§ 212 WILLS 192
section in which the land is situated, and the number of acres the
tract is supposed to contain. While descriptions will be construed
liberally, so as, if possible, to carry out the intention of the tes-
tator, nothing passes by the devise but what is described in the
will, whatever the intention of the testator may have been, and
evidence is’ inadmissible to make a will operate on land not em-
braced in the descriptive words.”

Where the real estate to be devised is located in a city or town,
the description should designate the state, county, city or town,
addition, and the number of the lot, if the property be located in
a platted addition; but where the land is unplatted, it should be
described either by metes and bounds or as a part of a govern-
mental subdivision. Where, however, it is impracticable to pro-
cure a correct description, a reference may be made in the will to
a deed of the property, as this will have the effect to incorporate
the deed for the purpose of the description, and the devise will
only pass the land embraced within the description in the deed,
although partial intestacy may result.

Devises of land have been upheld where the description of the
property was by its area,°* inclosure,®* condition of improve-
ment,°° and possession or occupancy.” Also it has been held
that land may be accurately described by the name in which it is
commonly known.**

92 Christy v. Badger, 72 Iowa 581,
34 N. W. 427,

93 Finelite v. Sinnott, 57 Super. Ct.
57, 5 N.Y. S. 439; Oldham v. York,
99 Tenn. 68, 41 S. W. 333.

94In re De Bernal, 165 Cal. 223, 131
Pac. 375; Churchill v. Churhill, 67 S.
W. 265, 23 Ky. L. 2365; Williams v.
Lane, 4 N. Car. 246, 6 Am. Dec. 561.

5 Thomas v. Scott, 72 S. W. 1129,
24 Ky. L. 2031; Phillipsburgh v.
Bruch, 37 N. J. Eq. 482; Gibson v.
Gibson, 93 S. Car. 385, 76 S. E. 980.

98 Robb v. Robb, 173 Pa. St. 620, 34
Atl. 237.

7 Lander v. Lander, 217 Ill. 289,

75 N. E. 487; Adams v. Morrow, 42
Md. 434; Cleverly v. Cleverly, 124
Mass. 314; Ogsbury v. Ogsbury, 115
N. Y. 290, 22 N. E. 219; Bolick v.
Bolick, 23 N. Car. 244; Hammel v.
Palmer, 4 Ohio C. D. 90, 12 Ohio
C. C. 184; McKeough v. McKeough,
69 Vt. 34, 37 Atl. 275.

98 Beers v. Narramore, 61 Conn. 13,
22 Atl. 1061; Ackerman v. Crouter,
68 N. J. Eq. 49, 59 Atl. 574; Chace
v. Lamphere, 148 N. Y. 206, 42 N. E.
580; Harper v. Anderson, 132 N. Car.
89, 43 S. E. 588; Gibson v. Gibson, 93
S. Car. 385, 76 S. E. 980.
193 § 213

DESCRIPTION OF DEVISE OR BEQUEST

§ 213. Rents, income, and profits of real estate.—An un-
qualified and unlimited gift of the “rents,” “income,” or “profits”
of real estate is a gift of the land itself, for the value lies in the
profits ;°° but this rule is one of construction which may be re-
butted by any clear expression in the will to the contrary. Thus
where the will contains a provision for the sale of the real estate
at a fixed time, it is clear that the testator did not intend to pass
the fee.”

A gift of “rents” and “profits” of land for life is a gift of the
land itself for life,* and a gift of a part of the rents is a gift of
a corresponding part of the land.* A gift of “rents and profits”
has been held to pass real estate which was purchased with the
proceeds of such rents.°

Where it is the intention of the testator not to include the land
in his gift of rents and profits to be derived therefrom, cere
should be exercised in so wording the will that his intentions may

be carried out.

§ 214. What words will carry personal property.—Unless
restricted by the context of the will the entire personal estate of
the testator will be included under such words as “personal prop-
erty,’’® “effects,” “things,’”* or “‘goods,and chattels.”® Unless so

99 Angus v. Noble, 73 Conn. 56, 62,
46 Atl. 278, 5 Prob. Rep. Ann. 643;
Drake v. Steele, 242 Ill. 301, 89 N. E.
1018; Morrison v. Schorr, 197 Iil.
554, 64 N. E. 545; McCoy v. Houck
(Ind.), 99 N. E. 97; Sampson v. Ran-
dall, 72 Maine 109; Reed v. Reed, 9
Mass. 372; Diament v. Lore, 31 N. J.
L. 220; In re Crofoot’s Will, 137 N.
Y. S. 430; Curry v. Patterson, 183 Pa.
St. 238, 38 Atl. 594; Conyngham v.
Conyngham (1750), 1 Ves. 522;
Kerry v. Derrick (1602), Cro. Jac.
104.

1Skinner v. Spann (Ind.), 93 N. E.
1061.

2Collier v. Grimesey, 36 Ohio St.
17.

3 Mather v. Mather, 103 Ill. 607;
Sampson v. Randall, 72 Maine 109;

13—Tuomp. WILLS.

Brombacher v. Berking, 56 N. J. Eq,
251, 39 Atl. 134; Monarque v. Mon-
arque, 80 N. Y. 320; Davis v. Will-
iams, 85 Tenn. 646, 4 S. W. 8

4Morrison v. Schorr, 197 Ill. 554,
64 N. E. 545; Durfee v. Pomeroy, 154
N. Y. 583, 49 N. E. 132.

5 Roe v. Vingut, 117 N. Y. 204, 22
N. E, 933.

6 Skinner v. Spann, 175 Ind. 672, 93
N. E. 1061; Risk’s Appeal, 110 Pa. St.
171, 1 Atl. 85.

7Galloway v. Galloway, 32 App.
Cas. (D. C.) 76; In re Miner, 146 N.
Y. 121, 40 N. E. 788; Price’s Appeal,
169 Pa. St. 294, 32 Atl. 455.

8In re Arnold’s Estate, 240 Pa. 261,
87 Att. 590.

®» Bowlin v. Furman, 34 Mo. 39.
§ 215 WILLS 194
restricted, such words may operate to pass money,*° choses in ac-
tion and securities,** and live-stock.”

Such words, however, may be limited by the context in various
ways, for example, where another specific or pecuniary legacy is
given to the same beneficiary,** where other words operate to
pass the property,** or where more restrictive words are used in
connection with the general words.*°

While such phrases as “my property,” “my estate,” and “my
whole estate,” will ordinarily operate to pass personal property,*®
nevertheless great care should be exercised in the description of
the property and in the expression of intention.

29 66.

§ 215. Money and cash.—Both the word “money” and the
word “cash” ought to be avoided as a description of property in a
will. The use of the word “cash” is never necessary. The use
of the word “money” is only advisable in connection with the
liquidation of the testator’s estate, as where there is a trust or di-
rection for sale followed by a trust or direction to make certain
payments out of the proceeds. The term is essentially an ambig-
uous one. Sometimes it has a very wide meaning, and may in
some wills embrace a variety of things. In other cases the con-
struction placed upon it by the court is very narrow. In its usual
and ordinary acceptance it means, gold, silver, or paper money
used as a circulating medium of exchange,*’ and does not em-
brace notes, bonds, evidence of debt, or other personal or real

10 Perea v. Barela, 5 N. Mex. 458,
23 Pac. 766.

11 Ritch v. Talbot, 74 Conn. 137, 50
Atl 42; Penn v. Penn, 120 Ky. 557,
87 S. W. 306, 27 Ky. L. 946; Andrews
v. Schoppe, 84 Maine 170, 24 Atl.
805; In re Eisenberry’s Estate, 180
Pa. St. 125, 36 Atl. 569.

12 Marton v. Osborne, 85 Tenn. 420,
3S. W. 647.

18 Wrench v. Jutting, 3 Beav. 521, 5
Jur. 145, 43 Eng. Ch. 521.

14Lanphier v. Despard, 1 C. & L.
200, 2 Dr. & War. 59, 4 Ir. Eq. 334.

15 Meyer v. Rusterholtz, 23 Ind.

App. 569, 55 N. E. 870; Bond v.
Martin, 76 S. W. 326, 25 Ky. L. 719;
In re Reynolds, 124 N. Y. 388, 26 N.
E, 954; In re Gibbons, 224 Pa. 37, 73
Atl, 183; Gallagher v. McKeague, 125
Wis. 116, 103 N. W. 233, 110 Am. St.
821.

16 Chapman v. Chick, 81 Maine 109,
16 Atl 407; Laing v.. Barbour, 119
Mass. 523,

17 Hancock v. Lyon, 67 N. H. 216,
29 Atl. 638; Mann v. Mann, 14 Johns.
(N. Y.) 1, 7 Am. Dec. 416; In re
‘Price’s Will, 169 Pa, St. 294, 32 Atl.
455.
195 § 216

DESCRIPTION OF DEVISE OR BEQUEST

estate, and this popular and well understood meaning should be
given to the word when used in a will, unless from a considera-
tion of the entire instrument it was intended by the testator to
have a broader meaning and to include notes, bonds and other
securities.*®

Unless the context gives it a more extended meaning, the word
“money” does not include money on deposit not subject to imme-
diate call.*° But the term is often given a broader and more
elastic meaning, and when it appears to have been the intention of
the testator it may include his personal property in general,” his
bonds and notes,?* and even his entire personal and real prop-
erty.”?

The use of the expression “money on hand” or “money on
deposit” should be avoided, as the testator may spend or invest
the money before his death, or he may die after disposing of his
real estate and depositing the proceeds, and thereby defeat the
plan of his will.

§ 216. Goods and chattels—The words “goods and chat-
tels’ are the most comprehensive terms of description for passing
personal property by will, yet they may be restricted by the con-
text.2? They will pass all the personal estate, but, where used
after the word “furniture” restrict the articles to those of furni-
ture.2* They may include choses in action, chattels real, corporeal
and incorporeal property.”

18 Pohlman v. Pohlman, 150 Ky.
679, 150 S. W. 829; Mann v. Mann,
14 Johns. (N. Y.) 1, 7 Am. Dec. 416.

19 Beatty v. Lalor, 15 N. J. Eq.
108; In re Levy’s Estate, 161 Pa. St.
189, 28 Atl. 1068; Wolf v. Schoeff-
ner, 51 Wis. 53, 8 N. W. 8.

20 Decker v. Decker, 121 Til. 341, 12
N. E. 750; Jenkins v. Fowler, 63 N.
H. 244; Sweet v. Burnett, 136 N. Y.
204, 32 N. E. 628; Watson v. Martin,

“228 Pa. 248, 77 .Atl. 450; Fry v.
Shipley, 94 Tenn. 252, 29 S. W. 6.

21 Hamilton v. Serra, 6 Mackey (17
D. C.) 168; Hinckley v. Primm, 41
Ill, App. 579; Henry v. Henry, 81

Ky. 342, 5 Ky. L. 283; In re Smith’s
Estate, 6 Pa. Dist. 329; Paul v. Ball,
31 Tex. 10. \

22 Blood v. Fairbanks, 48 Cal. 171;
Mt. Holly Safe Deposit &c. Co. v.
Deacon, 79 N. J. Eq. 120, 81 Atl. 356;
In re Strawbridge’s Estate, 5 Pa.
Dist. 692, 18 Pa. Co. Ct. 485; McCul-
lough v. Lauman, 38 Wash. 227, 80
Pac. 441.

23 Foxall v. McKenney, Fed. Cas.
5016, 3 Cranch C. C. 206.

24Stuart v. Marquis of Bute, 11
Ves. Jur. 656.

25 Kendall v. Kendall, 4 Russ. 360.
§ 217 WILLS 196

While they may pass all personal property when used alone
without restrictive words, yet it is never advisable to employ them
for that purpose without the use of other words.

§ 217. Furniture, household furniture and household
goods.—Care should be exercised in taking instructions for,
and in framing bequests of furniture and other effects in, or in
and about, a dwelling-house. There are perhaps fewer clauses in
a will which require more, or receive less attention, especially in
these times of new inventions.”° The word “furniture” is a very
comprehensive term, and includes about everything with which a
house can be furnished to make it habitable and reasonably con-
venient for living purposes.” It includes beds and bedding, car-
pets, rugs, draperies, chairs, tables, dressers, bureaus, kitchen
utensils, household linen, china, glassware, porcelain, bronze stat-
uary, pictures on the wall, silver ornaments, plate for family use,
stoves, clocks, curios, etc., according to their connection with the
testator’s house or residence and the habitual use and enjoyment
of them by the testator and his family.”* But it has been held that
books in the home library do not pass under a gift of “furni-
tures

The word “furniture” does not include money,” or securities.**
Nor do the words “household furniture” include articles of per-
sonal use, such as a gold watch and chain.** The words “house-
hold goods” mean substantially the same as “furniture,” though
of somewhat wider scope.**

Where the bequest of furniture and the devise of the house in
which it was used is made to the same person, all the usual con-

26 Wells v. Holt, 104 L. T. Rep. 13 So. 785; Smith v. Jewett, 4 N. H.
253. 513; In re Reynolds, 124 N. Y. 388,
27 Cole v. Fitzgerald, 3 Russ. 301; 26 N. E. 954.
Manton v. Tabois, 54 L. J. Ch. 1008. 31 Andrews v. Schoppe, 84 Maine
28 Richardson v. Hall, 124 Mass. 170, 24 Atl. 805; Blackmer v. Black-
228; Endicott v. Endicott, 41 N. J. mer, 63 Vt. 236, 22 Atl. 600.
Eq. 93, 3 Atl 157; Bunn v. Win- 32Tn re Kimball’s Will, 20 R. I. 619,
thrope, 1 Johns. Ch. (N. Y.) 329. 40 Atl. 847.
29 Ruffin v. Ruffin, 112 N. Car. 102, 33In re Frazer, 92 N. Y. 239; Car-
16 S. E. 1021. nagy v. Woodcock, 2 Munf. (Va.)
80 Kelly v. Richardson, 100 Ala. 584, 234, 5 Am. Dec. 470.
197, DESCRIPTION OF DEVISE OR BEQUEST § 218
tents of the house will be included.** But where the furniture is
given to one and the house to another, they should be definitely
described, otherwise a conflict may arise with reference to those
household effects which partake of the nature of fixtures.*> The
testator should be explicit in the expression of his intention in
bequeathing household effects.** A bequest of “household and
kitchen furniture, bric-a-brac, and articles of personal use and
ornament”’ has been held not to pass a steam yacht in use by the

testator at the time of his death.*”

§ 218. Stock—Where there is nothing in the wili that
indicates a contrary intention, the term “stock”’ means shares in a
corporation,** but it may include bonds,*® loan certificates,*® or de-
posits in a savings bank.“t When the term is used to designate
bank stock it will include the stock in which the testator is benefi-
cially interested as well as that standing in his own name.” But
it has been held not to include a mortgage or nondividend-paying
shares,** or debenture stock.**

Where stocks or bonds to a certain amount are given, a propor-
tionate amount of the given stock at par, irrespective of the mar-
ket value of the stock when the bequest takes effect, passes to the
beneficiary.** A general bequest of all the testator’s stock in a
given railroad company must be construed as including that
which is only in part paid for as well as that which has been fully
paid and certified.“* Also a gift of “my stock” may include all the

34 Richardson v. Hall, 124 Mass.
228.

41Tomlinson v. Bury, 145 Mass.
346, 14 N. E. 137, 1 Am. St. 464.

35 Wood v. Gaynon, 1 Ambl. 395.

36 Maeck v. Nason, 21 Vt. 115, 52
Am. Dec. 41.

87In re Parry’s Estate, 188 Pa. St.
33, 41 Atl. 448.

88 Capehart v. Burrus, 122 N. Car.
119, 29 S. E. 97, 42 L. R. A. 152.

39 Clark v. Atkins, 90 N. Car. 629,
47 Am. Rep. 538.

40 In re Conley, 197 Pa. 291, 47 Atl.
238.

42 Angell v. Springfield Home for
Aged Women, 157 Mass. 241, 31 N.
E. 1064.

43Jn re Bradley’s Estate, 238 Pa.
440, 86 Atl. 291.

44Connecticut Trust &c. Co. v.
Chase, 75 Conn. 683, 55 Atl. 171.

45In re Johnson’s Estate, 170 Pa.
St. 177, 32 Atl. 636.

46 Emery v. Wason, 107 Mass. 507.
§ 219 WILLS 198
stock of the particular description belonging to the testator at his
death.*

In making bequests of stocks and bonds care should be taken to
describe them in language by which they may be readily identi-

fied.

§ 219. Bonds, mortgages, and securities—The word
“bonds,” when used in a will, may include stock,** but it has been
held that where a testator bequeathed to his widow all of his gov-
ernment and other bonds which he might possess at the time of
his death, it did not include shares of stock in a bank.*® Also
where a testator bequeathed to his daughter all bonds and real
estate mortgages, it was held that trust certificates secured by de-
posits of corporate stock were not within the bequest.®°

The words “bonds and mortgages of every kind” has been held
to pass corporate bonds secured by a general trust mortgage.**
The use of the term “mortgage” has been held to include a bond
secured by a mortgage where both are held by the testator at the
time of his death. It has been held that a mortgage taken by the
testator subsequent to the execution of his will did not pass under
the description of “all loans secured by mortgage upon real es-
tate.”*> The word “securities,” in its broadest sense, embraces
bonds, certificates of stock, promissory notes, bills of exchange,
and all other evidences of debt.**

a3

§ 220. Notes, accounts, and choses in action.—A testator
may bequeath anything due him from another, or simply owing
and to become due.°® Thus he may make a gift of notes, ac-
counts, and choses in action. A bequest of all debts due and ow-

47Tn re Martin, 25 R. I. 1, 54 Atl. 52 Klock v. Stevens, 20 Misc. 383,

589, 45 N. Y. S. 603.

48 Scoville v: Mason, 76 Conn. 459, 53 Connecticut Trust &c. Co. v.
57 Atl. 114. Chase, 75 Conn. 683, 55 Atl. 171.

49 Benton v. Benton, 63 N. H. 289, 54In re Stark, 149 Wis. 631, 134 N.
56 Am. Rep. 512. W. 389.

50 Hollingshead v. Wood, 84 N. J. 55 Hayes v. Hayes, 45 N. J. Eq. 461,
Eq. 492, 94 Atl. 618. 17 Atl. 634.

51 Hammell v. Swan, 61 N. J. Eq.
179, 47 Atl. 801.
199 DESCRIPTION OF DEVISE OR BEQUEST § 221

ing to the testator at the time of his death, has been held to carry
a bond conditioned for replacing stock which the testator sold
after the date of his will and loaned the proceeds to the obligor,
the time of reinvestment having passed at the testator’s decease.
A bequest of “notes in hand” has been held to pass bonds as well
as promissory notes.°? A bequest of the amount of a certain note
will pass the note itself, and not an amount of money equal
thereto.

If a note bequeathed be secured by a vendor’s lien, the lien will
pass by a bequest of the note.°® A bequest of “accounts” or “ac-
counts owing”’ does not pass savings bank accounts,® nor accru-
ing rents.**

§221. Insurance.—A testator may bequeath money to
become due and payable to him as insurance on his own life or
on the life of one who survives him. Likewise a policy payable
to the legal representatives of the testator and for the benefit of
his estate, passes under a general bequest of his property ;°* but
where the policy is payable to the testator’s representatives, the
proceeds are not covered by the will unless expressly included.®

If the policy is payable to a named beneficiary, or even if pay-
able to the testator’s “legal heirs,” it is held that he has no prop-
erty in it that will pass under his will.°° But where the testator
is a beneficiary under a policy upon the life of a third person, his
rights under such policy will pass under general words in his will
without special designation.“ Where the testator has power to

56 Essington v. Vashon, 3 Mer. 434. 64 Fox v. Senter, 83 Maine 295, 22

57 Perry v. Maxwell, 17 N. Car. 488. Atl. 173; Aveling v. Northwestern

58 Howe v. Bemis, 2 Gray (Mass.) Masonic Aid Assn., 72 Mich. 7, 40 N.
205. W. 28,1 L. R. A. 528.

59 Tiernan v. Bean, 2 Ohio 383, 15 65 Golder v. Chandler, 87 Maine 63,
Am. Dec. 557; Parsons v. Kinser, 3 32 Atl. 784; Graham v. Allison, 24

Lea (Tenn.) 342. Mo. App. 516.
60 Gale v. Drake, 51 N. H. 78. 66In re Davies, L. R. (1892), 3
61 Watson v. Penn, 108 Ind. 21, 8 Ch. 63.

N. E. 636, 58 Am. Rep. 26. 67 Keller v. Gaylor, 40 Conn. 343;
62 Fletcher. v. Williams (Tex.), 66 Small v. Jose, 86 Maine 120, 29 Atl.

S. W. 860. 976; Halsey v. Patterson, 37 N. J.

63 Laughlin v. Norcross, 97 Maine Eq. 445; Harvey v. Von Cott, 71 Hun
33, 53 Atl. 834. 394, 25 N. Y. S. 25.
|

1
‘
'

t

§ 222

WILLS

200

dispose of his life insurance by will, his bequest thereof passes
policies payable to a person other than the beneficiary.*°

Fire insurance policies will not pass under a general bequest of
personal property, or under a devise of the property insured,”
but should be specifically bequeathed.”

§ 222. Interest, income, or profits of personal property.—

30 66s

The words “interest,” “income,” and “profits” are sometimes

used as synonymous terms.”

But the word “income” as used in

a bequest of personal property, means that which comes into or is
received from any business or investment of capital, without ref-
erence to the outgoing expenditures ;* while “profits” means the
‘gain made on any business or investment when both the receipts
and payments are taken into consideration.”

A bequest of the “income” of a business or investment prima
facie means the net income thereof.”* In the absence of anything
in the will indicating a contrary intention, a bequest of the “in-
come” of personal property passes the property itself.7° Likewise
a bequest of the “interest” or “produce” of a fund, without limi-
tation as to the extent of its duration, is a bequest of the fund
itself."7 But a bequest of the “income” to one for his natural life
does not pass the fund or property from which it is derived.”

68 Tompkins v. Griffin, 92 Va. 307,
23 S. E. 756.

69 Fagle’s Case, 3 Abb. Pr. (N. Y.)
218.

70Jn re Hurley’s Estate, 13 Phila.
(Pa.) 276.

71 See post, ch. 30, § 763.

72 Beers v. Narramore, 61 Conn. 13,
22 Atl. 1061; In re Murphy, 80 App.
Div. 238, 80 N. Y. S. 530.

73 Bates v. Porter, 74 Cal. 224, 15
Pac. 732; In re Murphy, 80 App. Div.
238, 80 N. Y. S. 530.

74 Providence Rubber Co. v. Good-
year, 76 U. S. 788, 19 L. ed. 566; In
re Murphy, 80 App. Div. 238, 80 N.
Y. S. 530; In re Gebbie’s Estate, 9
Pa. Dist. 56.

75 Stone v. Littlefield, 151 Mass.
485, 24 N. E. 592; In re Albertson,
113 N. Y. 434, 21 N. E. 117; Wol-
finger v. Fell, 195 Pa. St. 12, 45 Atl.
492.

76 Wellford v. Snyder, 137 U. S.
521, 34 L. ed. 780; Lorton v. Wood-
ward, 5 Del. Ch. 505; Watkin’s Admr.
v. Watkin’s Exrs. (Ky.), 120 S. W.
341; Brombacher v. Berking, 56 N. J.
Eq, 251, 39 Ati. 134.

77 In re Thompson’s Estate, 234 Pa.
82, 82 Atl. 1108; Ganret v. Rex, 6
Watts (Pa.) 14, 31 Am. Dec. 457.

78 Thieme v. Zumpe, 152 Ind. 359,
52 N. E. 499; In re Nevin’s Estate,
192 Pa. St. 258, 43 Atl. 996; Chub-
bock v. Murray, 30 Nov. Sc. 23.
201 DESCRIPTION OF DEVISE OR BEQUEST § 222

The word “income,” as used in a will bequeathing stock, means
the same thing as “‘dividends.’’”

If it is the wish of the testator to give the income separate and
apart from the principal, so that the beneficiary has no interest
whatever in the property from which the income is derived, he
may do so by the use of such words as will clearly indicate his in-
tention.*° This intention to separate the income from the princi-
pal is generally accomplished either by creating an express trust
or by limiting the interest to a life interest in the income only.**

79 Lauman v. Foster, 157 Iowa 275, 118, 36 Atl. 280; Walker v. Gibson,
135 N. W. 14; Reed v. Head, 6 Allen 164 Pa. St. 512,.30 Atl. 399; Beirne
(Mass.) 174. v. Beirne, 33 W. Va. 663, 11 S. E. 46.

80 Mackay v. Mackay, 107 Cal. 303, | 8!Bishop v. Bishop, 81 Conn. 509,
40 Pac. 558; De Haven v. Sherman, 71 Atl. 583; Diehl v. Middle States
131 Ill. 115, 22 N. E. 711,6 L. R. A. Loan &c. Co., 72 W. Va. 74, 77 S. E.
745; Nelson v. Nelson, 57 N. J. Eq. 549.
CHAPTER XII

ESTATES OR INTERESTS CREATED AND THEIR MODE OF CREATION

SECTION SECTION

230. In general. 238. Estates tail.

231. Estates or interests created by 239. Estates for years.
implication. 240. Joint tenancy and tenancy in

232. Absolute gifts of personalty. common.

233. Life estate in personalty. 241. Estates in remainder.

234, Fee simple in real estate. 242. Executory devises.

235. Limited or conditional fees. 243. Gifts of a use.

236. Life estates in real estate. 244. Rule in Shelley’s Case.

237. Life estates with power of dis- 245. Rule in Wild’s Case.
position.

§ 230. In general.—The estate or interest created by will
must be one which the law recognizes,’ and may be either legal or
equitable. The devise or bequest may be of every possible inter-
est in the property, or the use or income thereof for a limited
period, or the remainder after such use. The estate or interest
given may also be made to depend upon the happening of an un-
certain event.’

The estate or interest given may be enjoyed from the death of
the testator, in which case it is said to be a gift in possession, or
its enjoyment may be postponed to some future time, in which
case it is said to be a gift in expectancy. To the former class of
gifts belong such estates as, fee simple absolute, fee determinable,
fee qualified, fee conditional, fee tail, estates for life, and estates
at will; while to the latter class belong vested remainders and
executory interests.

1Kernan’s Succession, 52 La. Ann. 31 Am. Dec. 238; Faries’ Appeal, 23
48, 26 So. 749; Johnson v. Whiton, Pa. St. 29; Robinson v.. Ostendorff,
159 Mass. 424, 34 N. E. 542; Berry 38S. Car. 66, 16 S. E. 371.

v. Heiser, 271 Ill. 264, 111 N. E. 99; 22 BI. Comm. 103.
Mullany v. Mullany, 4 N. J. Eq. 16,

202
203 ESTATES OR INTERESTS CREATED § 231

§ 231. Estates or interests created by implication —An
estate or interest in real or personal property may be impliedly
created by will where such is the manifest intention of the tes-
tator.2 Thus a gift of the use or income of real property for an
indefinite period, without limit as to time or gift over, has been
held to constitute a gift of the property itself.* But an estate by
implication will not arise in contradiction to or in the absence of
some expression of intention.’ Likewise a bequest of the income,
use, or occupation of any species of property, without words of
limitation, is in effect a bequest of the corpus of the property.°
Thus a bequest of personalty to a trustee for the use and benefit
of another without words of restriction, vests the absolute prop-
erty in the fund bequeathed in the beneficiary.” But an absolute
estate in the principal will not pass by a bequest of the income if
the testator manifests an intention to sever the product from its
source, as when only a life estate in the income is given.®

A gift of the use of personal property for a life-time, with a
gift over, is to be regarded according to the nature of the prop-
erty and other circumstances. If of perishable articles, the use of
which consists in their consumption, it amounts from necessity to
an absolute gift of the property.®

In the absence of legal words of limitation a fee in real estate
may be impliedly created by giving the beneficiary power of dis-
position,”° or by imposing a personal charge upon him to pay

3In re Smith’s Estate, 46 Misc. 210,
04 N. Y. S. 90; Masterson v. Town-
shend, 123 N. Y. 458, 25 N. E. 928,
10 L. R. A. 816.

4In re Hull, 97 App. Div. 265, 89
N. Y. S. 939; Thomas v. Troy City
Nat. Bank, 19 Misc. 470, 44 N. Y. S.
1039; Traphagen v. Levy, 45 N. J.
Eq. 448, 18 Atl. 222; Beilstein v.
Beilstein, 194 Pa. St. 152, 45 Atl. 73,
75 Am. St. 692.

5 Mallery v. Dudley, 4 Ga. 52.

6 Crosgrove v. Crosgrove, 69 Conn.
416, 38 Atl. 219; In re Barrett’s Will,
111 Iowa 570, 82 N. W. 998; Sampson
v. Randall, 72 Maine 109; Huston v.

Read, 32 N. J. Eq. 591; In re Cro-
foot’s Will, 137 N. Y. S. 430.

7 Martin v. Fort, 83 Fed. 19. See
also. Cornwell v. Mt. Morris M. E.
Church, 73 W. Va. 96, 80 S. E. 148.

8 Diehl v. Middle States Loan &c.
Co., 72 W. Va. 74, 77 S. E. 549.

® Whittemore v. Russell, 80 Maine
297, 14 Atl. 197, 6 Am. St. 200.

10Mayo v. Harrison, 134 Ga. 737,
68 S. E. 497; Markillie v. Ragland, 77
lil. 98; Kelley v. Meins, 135 Mass.
231; Terry v. Wiggins, 47 N. Y.
512; Second Reformed Presbyterian
Church v. Disbrow, 52 Pa. St. 219.
§ 232 WILLS 204

debts,** or other sums of money.”

A fee is also implied from a devise in lieu of dower,” or for
the separate use of a married woman.** Also a life estate in real
property may be created by implication when an intention to do
so is clearly manifested by the will.”

§ 232. Absolute gift of personalty—The absolute estate
in personalty may be created by the use of such words of limita-
tion as “heirs,”’*® “heirs of the body,’*” “issue,’** ‘“descend-
ants,’*® or “representatives.”*° But it has been held that the ab-
solute title to personalty will pass by the use of ordinary words of
gift without the use of such words of limitation, or without the
use of words of perpetuity or of inheritance.** The absolute
ownership of personal property passes to the beneficiary under a
gift thereof without limitation of time or specification of the
duration of the estate.” If in a bequest of personal property, the
testator uses words of limitation, which, when applied to real

11 McNutt v. McComb, 61 Kans. 25,
58 Pac. 965; Baldwin v. Bean, 59
Maine 481; Bell v. Scammon, 15 N.
H. 381, 41 Am. Dec. 706.

12 Parsons v. Millar, 189 Ill. 107, 59
N. E. 606; Korf v. Gerichs, 145 Ind.
134, 44 N. E. 24; Donohue v. Dono-
hue, 54 Kans. 136, 37 Pac. 998;
Hughes v. Bent, 118 Ky. 609, 81 S.
W. 931, 26 Ky. L. 453; Snyder v.
Nesbit, 77 Md. 576, 26 Atl. 1006.

18 Orrick v. Boehm, 49 Md. 72;
Lausman v. Drahos, 12 Nebr. 102, 10
N. W. 573; Schult v. Moll, 132 N. Y.
122, 30 N. E. 377.

14Landon v. Moore, 45 Conn. 422;
Lennen v. Craig, 95 Ind. 167; Irvine
v. Putnam, 89 S. W. 520, 28 Ky. L.
465.

15 Holbrook v. Bentley, 32 Conn.
502; Garland v. Garland, 73 Maine
97; Wilmarth v. Bridges, 113 Mass.
407; McMullin v. Leslie, 29 Pa. St.
314.

16 Trimble v. Hensley, 10 Mo. 309;

Ellis v. Aldrich, 70 N. H. 219, 47
Atl. 95; Wintermute v. Snyder, 3 N.
J. Eq. 489; Karstens v. Karstens, 29
App. Div. 229, 45 N. Y. S. 966, 20
Misc. 247; Worrell v. Vinson, 50 N.
Car. 91; In re Schmidt, 185 Pa. St.
579, 40 Atl. 93.

17Duncan yv. Martin, 7 Yerg.
(Tenn.) 519, 27 Am. Dec. 525.

18 Bryan v. Duncan, 11 Ga. 67;
Karstens v. Karstens, 29 App. Div.
229, 45 N. Y. S. 966, 20 Misc. 247.

19 Huston v. Read, 32 N. J. Eq. 591.

20Livermore v. Somers (N. J.
Eq.), 16 Atl. 513.

21 Mulvane v. Rude, 146 Ind. 476,
45 N. E. 659; Barrett v. Gwyn, 88 S.
W. 1096, 28 Ky. L. 101; Twiss v.
Simpson, 183 Mass. 212, 66 N. E.
795; Eaton v. Broaderick, 101 Miss.
26, 57 So. 298.

22Wellford v. Synder, 137 U. S.
521, 34 L. ed. 780, 11 Sup. Ct. 183;
In re Barrett’s Will, 111 Iowa 570, 82
N. W. 998.
205 ESTATES OR INTERESTS CREATED § 233
property, would create an estate tail, the legatee takes an absolute
title to the property.”

A gift of personalty may be absolute though made on condi-
tion.** A bequest of personalty with power of disposition creates
an absolute estate, though there is a disposition over of property
undisposed of.*° Likewise a gift of personalty with power to
consume is presumed to be an absolute gift.2* Also a gift of a
fractional part,”’ or of the remainder,” or of the residue”® of per-
sonal property is absolute unless a contrary intention is clearly
shown by the will. Usually a bequest of personalty to one for a
certain purpose,°® or for the entire benefit** or maintenance” of a

beneficiary, passes an absolute interest.

§ 233. Life estate in personalty.—At common law a testa-
mentary gift for life of personal property with remainder over
could not be created,** and a gift for life of such property carried
the absolute interest.** But it is now settled that such estates may

be created by will,®°

23 Maulding v. Scott, 13 Ark. 88, 56
Am. Dec. 298; Hughes v. Nicklas, 70
Md. 484, 17 Atl. 398, 14 Am. St. 377;
In re Tillinghast’s Accounts, 25 R. I.
338, 55 Atl. 879.

24 Kauffman v. Gries, 141 Cal. 295,
74 Pac. 846; In re Folwell’s Estate,
67 N. J. Eq. 570, 59 Atl. 467; In re
Kimball’s Will, 20 R. I. 619, 40 Atl.
847.

25 Farle v. Coberly, 65 W. Va. 163,
64 S. E. 628.

26In re Gourley’s Estate, 238 Pa.
62, 85-Atl. 999,

27 Brevard v. Jones, 50 Ala. 221;
In re Stephenson, 30 Pa. Super.
Ct. 97..

28 Baldwin v. Tucker, 64 N. J. Eq.
333, 55 Atl. 1132.

29 Colt v. Hubbard, 33 Conn. 281;
Fox v. Fox, 102 Tenn. 77, 50 S. W.
765. .

30 Harrison v. Brophy, 59 Kans. 1,
51 Pac. 883, 40 L. R. A. 721.

even without the intervention of a trustee.**

81 Crosgrove v. Crosgrove, 69 Conn.
416, 38 Atl. 219; Justus’ Succession,
45 La. Ann. 190, 12 So. 130; Gallison
v. Quinn, 183 Mass. 241, 66 N. E.
961; In re Turner, 34 Misc. 366, 69
N. Y. S. 1019; Rote v. Warner, 17
Ohio C. C. 342, 9 Ohio C. D. 536.

32 McCune v. Baker, 155 Pa. St.
503, 26 Atl. 658.

332 Bl. Comm. 398.

342 Kent Comm. 352.

35 Wixon v. Watson, 214 Ill. 158, 73
N. E. 306; McKee v. McKee, 82 S.
W. 451, 26 Ky. L. 736; French v.
Hatch, 28 N. H. 331; Peirsol v. Roop,
56 N. J. Eq. 739, 40 Atl. 124; In re
Ryder, 41 App. Div. 247, 58 N. Y. S.
635; Black v. Ray, 18 N. Car. 334;
Davis’ Appeal, 100 Pa. St. 201; Ting-
ley v. Harris,°20 R. I. 517, 40 Atl.
346.

36 McDaniel v. Johns, 45 Miss. 632;
Cook v. Collier (Tenn.), 62 S. W.
658.
§ 234 WILLS 206
A gift of the use of personal property of a perishable character,
the use of which consists in its consumption, amounts from ne-
cessity to an absolute gift of the property; but a gift of such
property will be for life only if such was the manifest intention
of the testator shown by the will.%”

If personal property is included in a general residuary bequest
for life it must be sold and the principal preserved for the remain-
derman.** A life estate in personal property may be created by
the use of any language showing an intention to limit the gift to
the life of the donee,*® though no gift over of the residue is
made.*° And when the gift is in terms absolute, or the duration
is not in terms limited in the gift, it will be limited to a life estate
if the added clauses indicate clearly that such was the intention of
the testator.** An express gift of a life estate in personal prop-
erty has generally been held not to be enlarged to an absolute gift
by a subsequent provision empowering the donee to dispose of so
much as may be necessary for support,*” or by giving him unlim-
ited power to dispose of the property.

§ 234. Fee simple in real estate.-—A devise of real estate
to one and his “heirs and assigns” is the surest method of creat-
ing a fee in the devisee,** but even in the absence of the word

37 Miller v. Williamson, 5 Md. 219.

38 Ackerman v. Vreeland, 14 N. J.
Eg. 23; Patterson v. Devlin, McMull.
Eq. (S. Car.) 459.

39 Barr v. Weaver, 132 Ala. 212, 31
So. 488; Hooper v. Smith, 88 Md.
577, 41 Atl. 1095; McKee v. McKee
(Tenn.), 52 S. W. 320.

40 Weller’s Succession, 107 La. 466,
31 So. 883; Harris v. Dainley, 22 R.
I. 633, 49 Atl. 29; Bartlett v. Patton,
33 W. Va. 71, 10 S. E. 21,5 L. R. A.
523.

41 Mansfield v. Shelton, 67 Conn.
390, 35 Atl. 271, 52 Am. St. 285;
Bowerman vy. Sissel, 191 Ill. 651, 61
N. E. 369; Miller v. Lamprey, 68 N.
H. 376, 44 Atl. 528; In re Souder’s
Estate, 203 Pa. 293, 52 Atl. 177.

42 Baldwin v. Morford, 117 Iowa
72, 90 N. W. 487; Godshalk v. Akey,
109 Mich. 350, 67 N. W. 336; Hunt
v. Smith, 58 N. J. Eq. 25, 43 Atl. 428.

43 Mansfield v. Shelton, 67 Conn.
390, 35 Atl. 271, 52 Am. St. 285; Met-
zen v. Schopp, 202 Ill. 275, 67 N. E.
36; Rusk v. Zuck, 147 Ind. 388, 45 N.
E. 691, 46 N. E. 674; Small v. Thomp-
son, 92 Maine 539, 43 Atl. 509; Be-
nesch y. Clark, 49 Md. 497; Ford v.
Ticknor, 169 Mass. 276, 47 N. E. 877;
Robeson y. Shotwell, 55 N. J. Eq.
318, 36 Atl. 780; Burleigh v. Clough,
52 N. H. 267, 13 Am. Rep. 23.

44 Galloway v. Darby, 105 Ark.
558, 151 S. W. 1014, 44 L. R. A. (N.
S.) 782, Ann. Cas. 1914D, 712; Red-
dick v. Lord, 131 Ind. 336, 30 N. E.
207 ESTATES OR INTERESTS CREATED § 234
“heirs,” other words in the will showing an intention to devise a
fee simple are sufficient to pass such an estate.*° But the inten-
tion must, in the absence of a statute changing the rule, appear in
some way on the face of the will,*® and it is sometimes said that
there must be words from which an intention to pass a fee may
necessarily be implied.**

But by statute in most states it is provided that a devise of land
shall pass or be construed to pass a fee simple, or all the testa-
tor’s interest in the land, unless a contrary intention appear from
the words of the will;** the presumption which formerly obtained
that only a life estate was intended to pass, unless the contrary
appeared, being thus reversed.*® Where the statute has dispensed
with the use of the word “heirs” in devising real estate, the fact
that a testator used the word has been held not to cast any doubt

upon the intention of the testator to devise a fee simple.”

1085; Kendall v. Clapp, 163 Mass. 69,
39 N. E. 773; Jackson v. Littell, 213
Mo. 589, 112 S. W. 53, 127 Am. St.
620. And see post, ch. 30, § 793.

45 Wright v. Denn, 10 Wheat. (U.
S.) 204, 6 L. ed. 303; Schneer v.
Greenbaum, 27 Del. 97, 86 Atl. 107;
Robinson v. Randolph, 21 Fla. 629, 58
Am. Rep. 692; Ashby v. McKinlock,
271 Til. 254, 111 N. E. 101; 2 BL
Comm. 108; Co. Lit. 9b.

46 Jackson v. Wells, 9 Johns. (N.
Y.) 222.

47 Wheaton v. Andress, 23 Wend.
(N. Y.) 452.

48 For cases illustrating the appli-
cation of these statutes, see Smith
v. Phillips, 131 Ala. 629, 30 So. 872;
Ford v. Gill, 109 Ga. 691, 35 S. E.
156; ‘McFarland v. McFarland, 177
Ill. 208, 52 N. E. 281, 4 Prob. Rep.
Ann. 279; In re Barrett’s Will, 111
Towa 570, 82 N. W. 998, 5 Prob. Rep.
Ann. 639; Boston S. D. & T. Co. v.
Stich, 61 Kans. 474, 56 Pac. 1082;
Fuller v. Fuller, 84 Maine 475, 24 Atl.

946; Simonds v. Simonds, 168 Mass.
144, 46 N. E. 421; Johnson v. Delome
L. & P. Co., 77 Miss. 15, 26 So. 360;
Yocum v. Siler, 160 Mo. 281, 61 S.
W. 208; Clay v. Chenault, 108 Ky.
77, 55 S. W. 729, 21 Ky. Law 779;
Feit v. Richard, 64 N. J. Eq. 16, 53
Atl. 824; Crain v. Wright, 114 N. Y.
307, 21 N. E. 401; Whitfield v. Gar-
riss, 131 N. Car. 148, 42 S. E. 568;
In re Jeremy’s Estate, 178 Pa. St.
477, 35 Atl. 847; Waterman v.
Greene, 12 R. I. 483; McAllister v.
Tate, 11 Rich. L. (S. Car.) 509, 73
Am. Dee. 119; Dulin v. Moore (Tex.
Civ. App.), 69 S. W. 94; Reeves v.
School Dist. 59 of L., 24 Wash. 282,
64 Pac. 752; Morrison v. Clarksburg
C. & C. Co., 52 W. Va. 331, 43 S. E.
102.

49 McConnel v. Smith, 23 Ill. 611;
Baldwin v. Bean, 59 Maine 481;
Shirey v. Postlethwaite, 72 Pa. St. 39.

50 Gannon v. Albright, 183 Mo. 238,
81 S. W. 1162, 105 Am. St. 471, 67 L.
R. A. 97,
§ 235 WILLS 208

It has been held that, unless a contrary intention appear, a de-
vise of one’s “estate’’ located at a certain place,”* or of “all” his
“estate,’’°? or “all’’ his “real estate,”** or his “property,” with ref-
erence to particular land or to the testator’s possessions gener-
ally,** though without a word “heirs” or other words of limita-
tion, will vest a fee simple in the devisee; such expressions being
regarded as descriptive of the quantity of interest intended to be
conveyed. The same effect is given to a devise to a person “in
fee simple,” or “forever,”’®> and to such a devise with merely a
charge or duty imposed on the devisee personally in regard to the
payment of money, to enable him to discharge which an estate for
life might not be sufficient, though not if the charge is imposed on
the land alone.**

§ 235. Limited or conditional fees.—Limited or condi-
tional fees are (1) base, qualified, or determinable fees; and (2)
fees conditional at common law.*’ The terms “base fees,” “quali-
fied fees,” and “determinable fees,” have been used promiscuously
as descriptive of an estate which has a qualification’ subjoined
thereto, and which may be determined whenever the qualification

annexed to it is at an end.°®

51 Lambert’s Lessee v. Paine, 3
Cranch (U. S.) 97, 2 L. ed. 377; Rob-
inson v. Randolph, 21 Fla. 629, 58
Am. Rep. 692; Leland v. Adams, 9
Gray (Mass.) 171. -

52 Saeger v. Bode, 181 Ill. 514, 55
N. E. 129; Godfrey v. Humphrey, 18
Pick. (Mass.) 537, 29 Am. Dec. 621;
Forsaith v. Clark, 21 N. H. 409;
Steward v. Knight, 62 N. J. Eq. 232,
49 Atl. 535; Jackson v. Merrill, 6
Johns. (N. Y.) 185, 5 Am. Dec. 213.

53 Boston Safe Deposit &c. Co. v.
Stich, 61 Kans. 474, 59 Pac. 1082;
Bacon v. Woodward, 12 Gray
(Mass.) 376; Forsaith v. Clark, 21
N. H. 409; Sharp v. Humphreys, 16
N, J. L. 25.

54Tincoln v. Lincoln, 107 Mass.
590; Fogg v. Clark, 1 N. H. 163;

But these terms have been distin-

Foster v. Stewart, 18 Pa. St. 23;
Arnold v. Lincoln, 8 R. I. 384.

552 Bl. Comm. 108; Co. Lit. 9b.

562 Jarman Wills, 1131; Wright v.
Denn, 10 Wheat. (U. S.) 204, 6 L. ed.
303; Funk v. Eggleston, 92 Ill. 515,
34 Am. Rep. 136; Snyder v. Nesbitt,
77 Md. 576, 26 Atl. 1006; Parker v.
Parker, 5 Metc. (Mass.) 134; Jack-
son v. Bull, 10 Johns. (N. Y.) 148,
6 Am. Dec. 321; King v. Cole, 6 R. I.
584.

57 Paterson v. Ellis Exrs., 11 Wend.
(N. Y.) 259.

582 BI. Comm. 109; Wiggins Ferry
Co. v. Ohio &c. R. Co., 94 Ill. 83;
Wills v. Wills, 85 Ky. 486, 3 S. W.
900, 9 Ky. Law 76; Hall v. Turner,
110 N. Car. 292, 14 S. E, 791.

1
209 ESTATES OR INTERESTS CREATED § 235
guished, and classified under the head of “modified fees.”** A
base, qualified, or determinable fee is created by a devise in fee
coupled with a provision that upon the happening of a certain
condition or contingency the estate so devised may be deter-
mined.®° The estate, when so limited, is still a fee, for the reason
that it will last forever if the contingency does not happen, but so
long as it is possible that the contingency may happen, it is a base,
qualified, or determinable fee. If the condition or contingency be
void®* or become impossible of performance without fault of the
devisee, the estate becomes a fee simple absolute.

The event or contingency which may be provided for to defeat
the qualified or defeasible fee may be the marriage of the first
devisee,* or his death before marriage, or death before distribu-
tion, or death before attaining a certain age.°* The event or
contingency expressed must be of such a character that it may by
possibility never happen.®’ ‘No particular phraseology is neces-
sary to introduce the future event: until, till, so long as, whilst,
or any other equivalent words may be used, provided they clearly

express the dependency of the duration of the estate upon the

future event.’

59 Challis Real Property,
¥ 215, 227,

60 McFarland v. McFarland, 177 Ill.
208, 52 N. E. 281; Greer v. Wilson,
108 Ind. 322, 9 N. E. 284; Common-
wealth v. Pollitt, 76 S. W. 412, 25 Ky.
L, 790.

61 Carter v. Carter, 39 Ala. 579; In
re Walkerly’s Estate; 108 Cal. 627, 41
Pac. 772, 49 Am. St. 97.

62 Green v. Gordon, 38 App. D. C.
443; Huckabee v. Swoope, 20 Ala.
491; New Haven Co. v. Trinity
Church Parish, 82 Conn. 378, 73 Atl.
789, 17 Ann. Cas. 432; Shockley v.
Parvis, 4 Houst. (Del.) 568; Harri-
son v. Harrison, 105 Ga. 517, 31 S. E.
455, 70 Am. St. 60. ,

63 Frey v. Thompson, 66 Ala. 287;
Cummings v. Lohr, 246 Ifl. 577, 92
N. E. 970; Chenault v. Scott, 66 S.
W. 759, 28 Ky. L. 1974; Rohrbach

14—Tuomp. WILLs.

* 197,

vy. Sanders, 212 Pa. 636, 62 Atl. 27;
Haring v. Shelton, 103 Tex. 10, 122
S. W. 13.

64 Wheeler v. Long, 128 Iowa 643,
105 N. W. 161.

65 Giles v. Anslow, 128 Ill. 187, 21
N. E. 225; Corey v. Springer, 138
Ind. 506, 37 N. E. 322; Schneider v.
Holzhauer, 134 Ky. 33, 119 S. W. 177;
Robert v. Corning, 89 N. Y. 225, 23
Hun 299.

66 Matlock v. Lock, 38 Ind. App.
281, 73 N. E. 171; Wheeler v. Long,
128 Towa 643, 105 N. W. 161; Hersey
vy. Purington, 96 Maine 166, 51 Att.
865; Woodman v. Madigan, 58 N. H.
6; Foster v. Wick, 17 Ohio 250;
Glasscock v. Tate, 107 Tenn. 486, 64
S. W. 715.

67 Van Horn v. Campbell, 100 N. Y.
287, 3 N. E. 316, 53 Am. Rep. 166.

68 Challis Real Property, * 198.
§ 236 WILLS 210

“A conditional fee is one which restrains the fee to some par-
ticular heirs, exclusive of others; as to the heirs of a man’s body,
or to the heirs male of his body. This was at the common law
construed to be a fee simple on condition that the grantee had the
heirs prescribed. If the grantee died without such issue, the lands
reverted to the grantor. But if he had the specific issue, the con-
dition was supposed to be performed and the estate became abso-
lute, so far as to enable the grantee to alien the land, and bar not
only his own issue but the possibility of a reverter.’’*’ This estate
is now practically obsolete in England and the United States, ex-

cept in South Carolina.”

§ 236. Life estates in real estate—An estate in real prop-
erty may be limited on the life of the donee or some other person
or persons, or for the joint lives of two or more persons ;"* in
which last case the estate endures till the death of the survivor.”
Although such estates are denominated estates in freehold, they
are not estates of inheritance.”

In jurisdictions where the Rule in Shelley’s Case has been abol-
ished, a life estate may be created by a gift to one for life, with
remainder to his heirs.7%* And even in jurisdictions where this
rule prevails, a devise to one for life, and on his death to the
“heirs of his body by him begotten,” passes a life estate only to
the devisee.”* Unless modified by some other provision of the
will, a life estate only will pass by such expressions as, “during
his life” or “for the full term of his natural life.”"®

694 Kent Comm. 11. freese v. Lake, 109 Mich. 415, 67 N.

70Du Pont v. Du Bos, 52 S. Car.
244, 29 S. E. 665; Withers v. Jenkins,
14S. Car. 597; Wright v. Herron, 5
Rich. Eq. (S. Car.) 441.

71 Riordon v. Holiday, 8 Ga. 79.

72 Glover v. Stillson, 56 Conn. 315,
15 Atl. 752; Cheney v. Teese, 108 Ill.
473.

732 Bl. Comm. 120.

74Rosenau v. Childress, 111 Ala.
214, 20 So. 95; Thomas v. Miller, 161
Ill. 60, 43 N. E. 848; Zavitz v. Pres-
ton, 96 Iowa 52, 64 N. W. 668; De-

W. 505, 32 L. R. A. 744, 63 Am. Rep.
584; Wood v. Wood, 45 S. Car. 590,
23 S. E. 950.

7 Granger v. Granger, 147 Ind. 95,
44.N. E. 189, 36 L. R. A. 186.

76 Perry v. Bowman, 151 Ill. 25, 37
N. E. 680; Smith v. Runnels, 97 Iowa
55, 65 N. W. 1002; McGraw v. Miner,
15 S. W. 6, 12 Ky. L. 687; Cousino
v. Cousino, 86 Mich. 323, 48 N. W.
1084; Sillcocks v. Sillcocks, 50 N. J.
Eq. 25, 25 Atl. 155; In re Brook’s
Will, 125 N. Car. 136, 34 S. E. 265;
211 ESTATES OR INTERESTS CREATED § 237

Where the words used show an intention on the part of the
testator to give nothing more than a life estate, such estate will
be. created,’” especially where the remainder is given to others.”*
If so expressed, a devise may be for life even though there is no
disposition of the fee. In such case the fee becomes a part of the
residuary estate or passes.as in case of intestacy.”

A life estate may be created by a gift of the use,®° possession,®*
or enjoyment* of the real estate for life; also by a gift for life of
the rents, profits, or income.** But an unlimited gift of the pro-
ceeds of real estate has been held to vest in the beneficiary an ab-
solute estate in the corpus.**

§ 237. Life estates with power of disposition.—The power
of disposition in a tenant for life under a will must be expressly
given, as it does not generally arise from implication.® It is
usually construed strictly,** and will be confined, for the protec-
tion of the remainderman, to the purpose for which it was
given.*” Thus where the life tenant is given the power of sale in
case it becomes necessary for his support or maintenance, he can

Hull v. Hull, 16 Ohio C. C. 688, 9
Ohio C. D. 19; In re Reynold’s Es-
tate, 175 Pa. St. 257, 34 Atl. 624;
Howe v. Gregg, 52 S. Car. 88, 29 S.
E, 394; Harrison v. Foote, 9 Tex.
Civ. App. 576, 30 S. W. 838.

77 Forest Oil Co. v. Crawford, 77
Fed. 106; Talbott v. Hamill, 151 Mo.
292, 52 S. W. 203.

78 Thaw v. Ritchie, 136 U. S. 519,
34 L. ed. 531, 10 Sup. Ct. 1037; Henry
v. Pittsburgh Clay Mfg. Co., 80 Fed.
485; Clarke v. Terry, 34 Conn. 176.

79 Byrne v. McGrath, 130 Cal. 316,
62 Pac. 559, 80 Am. St. 127; Schimpf
v. Rhodewald, 62 Nebr. 105, 86 N. W.
908.

80 Cort v. Massie, 171 Ill, App. 123;
Heyer v. Kranch, 52 Pa. Super. Ct.
635; Otjen v. Frohbach, 148 Wis. 301,
134 N. W. 832; In re Silverthorn, 15
Ont. L. R. 112, 10 Ont. W. R. 798.

81 Rudd v. Roberts, 146 Ky. 622, 143
S. W. 2.

82 Feley v. Syer, 121 Md. 79, 88 Atl.
38; In re Mercantile Trust Co. 156
App. Div. 224, 141 N. Y. S. 460.

83 Mather v. Mather, 103 Ill. 607;
Commons v. Commons, 115 Ind. 162,
16 N. E. 820, 17 N. E. 271; Weathers-
bee v. Weathersbee, 82 S. Car. 4, 62
S. E. 838.

84In re Crofoot’s Will, 137 N. Y.
S. 430; Hyde v. Rainey, 233 Pa. 540,
82 Atl. 781, Ann. Cas. 1913.B, 726.

85 Glore v. Scroggins, 124 Ga. 922,
53 S. E. 690; Bramell v. Cole, 136
Mo. 201, 37 S. W. 924, 58 Am. St. .
619,

86 Bilger v. Nunan, 186 Fed. 665;
State v. Smith, 52 Conn. 557; Harp
v. Wallin, 93 Ga. 811, 20 S. E. 966.

87 Cowell v. South Denver R. E.
Co., 16 Colo. App. 108, 63 Pac. 991;
McMillan vy. Cox, 109 Ga. 42, 34 S.
E, 341,
§ 237° WILLS 212
not exercise the power in the absence of such necessity.°* But it
has been held that where the wife of the testator is given a life
estate with power to sell the property “for her own comfort and
support” the power to sell is at her discretion, and it is not essen-
tial to the exercise of the power that the sale is necessary for her
support and comfort.*

Where the gift is for life with power of disposal for the neces-
sary benefit of the life tenant, the power must be exercised during
the active enjoyment of the life estate, and in aid of that enjoy-
ment.°? Where a life estate is expressly created, a power of dis-
position does not enlarge such estate into a fee, either absolute or
qualified.°* The above rule is generally held applicable even in
cases where the power of disposal is an unlimited beneficial
power,” but this is not the holding in all jurisdictions.”

When real estate is given absolutely to one person, with a gift
over to another of such portion as may remain undisposed of by
the first taker at his death, the gift over is void, as repugnant to
the absolute estate first given ;°* and it is also established law that,
where an estate is given to a person generally, or indefinitely,
with a power of disposition, it carries a fee, and any limitation

88 Peckham v. Lego, 57 Conn. 553,
19 Atl. 392, 7 L. R. A. 419, 14 Am.
St. 130; Cox v. Wills, 49 N. J. Ea.
130, 22 Atl. 794; Cresap v. Cresap,
34 W. Va. 310, 12 S. E. 527.

89 Griffin v. Nicholas, 224 Mo. 275,
123 S. W. 1063.

90 Small v. Thompson, 92 Maine
539, 43 Atl. 509; Ford v. Ticknor, 169
Mass. 276, 47 N. E. 877.

91 Dryer v. Crawford, 90 Ala. 131,
7 So. 445; Morffew v. S. F. & S. R.
Co., 107 Cal. 587, 40 Pac. 810; Sill v.
White, 62 Conn. 430, 26 Atl. 396, 20
L. R. A. 321; Wetter ¥. Walker, 62
Ga. 142; Wood v. Robertson, 113 Ind.
323, 15 N. E. 457; Ramsdell v. Rams-
dell, 21 Maine 288; Collins v. Wick-
wire, 162 Mass. 143, 38 N. E. 365;
Burford v. Aldridge, 165 Mo. 419, 63
S. W. 101, 65 S. W. 720; Loosing

v. Loosing, 85 Nebr. 66, 122 N. W.
707, 25 L. R. A. (N. S.) 920; Bur-
leigh v. Clough, 52 N. H. 267, 13 Am.
Rep. 23; Swarthout v. Ranier, 143 N.
Y. 499, 38 N. E. 726; Weir v. Smith,
62 Tex. 1.

92 Burke v. Burke, 259 Ill. 262, 102
N. E. 293; Goss v. Withers, 153 Ky.
5, 154 S. W. 398; Bragg v. Litchfield,
212 Mass. 148, 98 N. E. 673; Romjne
v. Randolph, 166 Mo. App. 87, 148
S. W. 185; In re Granfield, 79 Misc.
374, 140 N. Y. S. 922; Hovely v. Her-
rick, 152 Wis. 11, 139 N. W. 384.

88 Dills v. La Tour, 136 Mich. 243,
98 N. W. 1004; Bradley v. Carnes,
94 Tenn. 27, 27 S. W. 1007, 45 Am.
St. 696; Honaker v. Duff, 101 Va.
675, 44 S. E. 900.

°4Mulvane v. Rude, 146 Ind. 476,
45 N. E. 659,
213 ESTATES OR INTERESTS CREATED § 238
over is void for repugnancy.**® Where the testator, by residuary
clause, leaves the rest and residue of his estate to one for his sole
use and benefit during the term of his natural life and upon his
death the remainder to be divided in a specified manner, but fur-
ther provides that “it is my will” that the first taker “‘be not re-
stricted in any manner from using or disposing of all or any
part” of the property, it was held that a life estate with power of
disposition, and not a fee was created.°°

Gifts for life with power of sale in the life tenant are a con-
stant source of litigation, due mainly to the confused ideas re-
specting the scope of the power intended to be conferred. Such
gifts generally subject the property to the payment of the life
tenant’s debts, and often give rise to contention and litigation be-
tween the life tenant and the remainderman. The purpose of the
testator may be better accomplished, and rights of both the life
tenant and the remainderman be better protected by creating a
trust with power in the trustee to make advancements.*”

§ 238. Estates tail—An estate tail is an estate of inher-
itance limited, not to the donee’s heirs in general, but to the heirs
of his body.** Such estates have been abolished very generally in
this country and in parts of the Dominion of Canada; but are in
general use in England. In some of the states of the United
States they are converted into estates in fee simple*® and in oth-
ers, into life estates in the first taker with remainder in fee simple
in his immediate heirs. It would seem, however, that in Kansas,

95 Norris v. Hensley, 27 Cal. 439;
Wiley v. Gregory, 135 Ind. 647, 35
N. E. 507; Bills v. Bills, 80 Iowa 269,
45 N. W. 748, 8 L. R. A. 696, 20 Am.
St. 418; Kelley v. Meins, 135 Mass.
231; Combs v. Combs, 67 Md. 11, 8

Atl. 757, 1 Am. St. 359; Bean v. Ken--

muir, 86 Mo. 666; McClellan v.
Larchar, 45 N. J. Eq. 17, 16 Atl. 269;
Campbell v. Beaumont, 91 N. Y. 464;
Seibert v. Wise, 70 Pa. St. 147; Chap-
lin v. Doty, 60 Vt. 712, 15 Atl. 362.

96 Mooy v. Gallagher, 36 R. I. 405,
90 Atl. 663, L. R. A. 1916 C, 1040,

97 See post, ch. 30, § 745.

28 Allen v. Craft, 109 Ind. 476, 9 N.
E. 919, 58 Am. Rep. 425; McFeely
v. Moore, 5 Ohio 464, 24 Am. Dec.
314; Anders v. Gerhard, 140 Pa. St.
153, 21 Atl. 253; Simms v. Buist, 52
S. Car. 554, 30 S. E. 400.

99 Dengel v. Brown, 1 App. D. C.
423; English v. McCreary, 157 Ala.
487, 48 So. 113; Lofton v. Murchison,
80 Ga. 391, 7 S. E. 322; Paterson v.
Ellis, 11 Wend. (N. Y.) 259.

1 Mercantile Tr. Co. v. Adams, 95
Ark, 333, 129 S. W. 1101; St. John
§ 239 WILLS 214
the essential character of the estate tail (the right to convert the
estate into a fee simple by a conveyance) is preserved.”

To create an estate tail it is generally essential to use not
merely the word “heirs,” but some word indicating the body
from which the heirs are to come, or some word of procreation
from a particular person.? While the words of limitation gener-
ally used are “heirs of his body,” other equivalent words, which
clearly make the limitation to the heirs of the body of the grantee,
are sufficient. Any words which especially show the testator’s in-
tention to create such an estate will be sufficient. Thus a devise
to a person, his heirs and assigns, providing that, if the devisee
should die leaving no heirs, it should go to a has been held
to create an estate tail.*

When the grantee in tail is alone mentioned as the person from
whose body the heirs are to be derived, the estate is in tail gen-
eral.” When both the parents from whose bodies the heirs must
be derived are specified, as where the devise is to one and the
heirs of his body by a woman named, the estate is a tail special.°
The estate may be confined to heirs male or heirs female, and then
the descendant must be traced through heirs male in the one case,
or to the heirs female in the other, and the estate is in tail male or
tail female.” An estate tail, so far as it depends upon the words
“of his body,” may be created by implication.®

§ 239. Estates for years.—Estates for years are usually
created by a lease, but they may result from a devise.® Such
estates are chattels real, and are not of inheritance.*° They may
be created by the use of any words that will clearly indicate an in-

v. Dann, 66 Conn. 401, 34 Atl. 110;
Cox v. Jones, 229 Mo. 53, 129 S. W.
495; Yocum v. Siler, 160 Mo. 281, 61
S. W. 208.

2Ewing v. Nesbit, 88 Kans. 788,
129 Pac, 1131.

8 Adams v. Ross, 30 N. J. L. 505,
32 Am. Dec. 237.

4 Chesebro v. Palmer, 68 Conn. 207,
36 Atl. 42.

5Co. Lit. §§ 14, 15, 21, 22. Riggs

v. Sally, 15 Maine 408; Emans v.
Emans, 3 N. J. L. 967.

6 Allen v. Craft, 109 Ind. 476, 9 N.
E. 919, 58 Am. Rep. 425.

7 Dart v. Dart, 7 Conn. 250; Lew-
thwait v. Thompson, 36 L. T. (N,
S.) 910.

8 Fahrney v. Holsinger, 65 Pa. St,
388.

9 Rice Real Property, § 120.

10 Hellwig v. Bachman, 26 Ill. App.
165.
215 ESTATES OR INTERESTS CREATED § 240

tention to pass such estate." Thus, a devise to one to hold for a

definite time after the testator’s death will pass an estate for
years.”

§ 240. Joint tenancy and tenancy in common.—The chief
characteristic which distinguishes an estate in joint tenancy from
an estate in common is that of survivorship ;* but the principle of
survivorship will also apply to tenants in common where the gift
is to the donees as a class, and one dies before the testator, or
afterward before the gift vests.**

Joint tenancies, as contradistinguished from tenancies by en-
tireties, have been much in disfavor since feudal times, because
of the principal incident of survivorship; and in a large number
of states, this spirit of hostility has crystallized in legislative re-
strictions. A tenancy in common will be presumed, unless the
devise expressly declares that a joint tenancy was intended.” It
was at one time held that a gift to two persons, naming them,
created a joint tenancy,*® but such gift is now generally held to
create a tenancy in common.*’ Likewise, a tenancy in common is
created by a gift to two persons, naming them, and “their chil-
dren,”** or their heirs and assigns.*® A tenancy in common is al-
ways created, without the aid of a statute, by words that look to a
division of the land devised, such as the words “‘to be equally di-
vided,” or “share and share alike,” or any words indicating a
division.”°

11 Moore v. Miller, 8 Pa. St. 272.

12 Hellwig v. Bachman, 26 Ill. App.
165; Jacquat v. Bachman, 26 Ill. App.
169.

138 Rockwell v. Swift, 59 Conn. 289,
20 Atl. 200.

14Springer v. Congleton, 30 Ga.
976; Crecelius v. Horst, 78 Mo. 566;
Hall v. Smith, 61 N. H. 144; Hop-
pock v. Tucker, 59 N. Y. 202; In re
Striewig’s Estate, 169 Pa. St. 61, 32
Atl. 83.

15 Lemmons v. Reynolds, 170 Mo.
227, 71 S. W. 135.

16 Putnam v. Putnam,
Surr. (N. Y.) 308.

4 Bradf.

17 In re Hittell, 141 Cal. 432, 75 Pac.
53; Lemmons vy. Reynolds, 170 Mo.
227, 71 S. W. 135; In re Kimberly,
150 N. Y. 90, 44 N. E. 945.

18 Cruit v. Owen, 203 U. S. 368, 51
L. ed. 227, 27 Sup. Ct. 71; McCord
v. Whitehead, 98 Ga. 381, 25 S. E.
767; Matter of Tompkins, 10 App.
Div. 572, 42 N. Y. S. 412.

19 Jones v. Hand, 78 App. Div. 56,
79 N. Y. S. 556.

20 Howard v. Howard, 19 Conn.
313; Griswold v. Johnson, 5 Conn.
363; Dunn v. Bryan, 38 Ga. 154;
Dodds v. Winslow, 26 Ind. App. 652,
60 N. E. 458; Potter v. Nixon, 81 N.
§ 241 WILLS 216

A devise of land to two persons, “to be equally divided between
them,” but one of them named “‘to have the part next the brook,”
creates an estate in common in them, and not an estate in sever-
alty in each. The statement that a particular one is “to have the
part next the brook” denotes merely that, when a future division
of the property shall be made, that person shall have his portion
assigned to him in the place named. It has no possible effect on
the tenancy in common necessarily arising from the unity of pos-
session, nor can it operate to produce such estate.**

A devise to persons as tenants in common is not to be recom-
mended, as it gives rise to much friction and litigation among the
co-owners concerning such matters as use and occupation, rent,
accounting, taxes, repairs and improvements, incumbrances, and
waste. Also partition is expensive and often results unsatisfac-
torily.

There is neither dower nor curtesy in estates in joint tenancy,
and the interest is not subject to testamentary disposition unless
the testator survives his co-tenant. The rights of each tenant,
like those of tenants in common, are equal in the property until
division.®

§ 241. Estates in remainder.—An estate created to take
effect upon the termination of a prior estate in the same property
created by the same instrument is an estate in remainder.?? Such
estate may be created by any expression which shows the testa-
tor’s intention to dispose of his entire estate in the property in
such manner that there is at the same time created a particular
estate therein, less than a fee, followed by a limitation over to
take effect upon the termination of such preceding particular
estate.**

J. Eq. 338, 86 Atl. 444; Pruden v. S. E. 944; Barclay v. Platt, 170 IIL

Paxton, 79 N. Car. 446, 28 Am. Rep.
333; Goldstein v. Hammell, 236 Pa.
305, 84 Atl. 772.

21Griswold v. Johnson, 5 Conn.
363.

22 Dunavant v. Fields, 68 Ark. 534,
60 S. W. 420.

23 Fleming v. Ray, 86 Ga. 533, 12

384, 48 N. E. 972; In re Rudy’s Es-
tate, 185 Pa. St. 359, 39 Atl. 968, 64
Am, St. 654.

24 Smith v. Chadwick, 111 Ala. 542,
20 So. 436; Fleming v. Ray, 86 Ga.
533; 12 S. E. 944; Barclay v. Platt,
170 Ill. 384, 48 N. E. 972; Tindall
v. Miller, 143 Ind. 337, 41 N. E. 535;
217 ESTATES OR INTERESTS CREATED § 24].

“The essential characteristics of a remainder are: (1) There
must be a precedent particular estate, whose regular termination
the remainder must await. (2) The remainder must be created
by the same conveyance, and at the same time, as a particular
estate. (3) The remainder must vest in right during the con-
tinuance of the particular estate, or eo instanti that it determines.
(4) No remainder can be limited after a fee simple. The neces-
sary features of a remainder arise out of the definition. The defi-
nition describes a remainder as the remnant of the whole after a
part has been disposed of. It follows, therefore, of course, that
there must be that part in order to fulfil the definition.””**

The chief distinction between a remainder and an executory
devise is that a remainder follows a particular estate, while an
executory devise follows a fee.2* So an estate in remainder can
not be limited after an estate in fee simple,”’ whether it be a quali-

fied or defeasible fee, or a conditional fee.?*
An estate in remainder is usually limited after an estate for
life,*® although it may be limited after an estate tail,°° or an estate

for years,**

Terry v. Bourne, 33 S. W. 403, 17
Ky. L. 1042; Maguire v. Moore, 108
Mo. 267, 18 S. W. 897; Brombacher
v. Berking, 56 N. J. Eq. 251, 39 Atl.
134; Duclos v. Benner, 136 N. Y. 560,
32 N. E. 1002; Bird v. Gilliam, 121
N. Car. 326, 28 S. E. 489; Shadden
v. Hembree, 17 Ore. 14, 18 Pac. 572;
In re Rudy’s Estate, 185 Pa. St. 359,
39 Atl. 968, 64 Am. St. 654; Simpson
v. Cherry, 34 S. Car. 68, 12 S. E.
886; Hurt v. Brooks, 89 Va. 496, 16
S. E. 358.

252 Minor, Inst. 331, 332. See also
Wells v. Houston, 23 Tex. Civ. App.
629, 57 S. W. 584.

26 Sullivan v. Garesche, 229 Mo.
496, 129 S. W. 949, 49 L. R. A. (N.
S.) 605.

27Lambe v. Drayton, 182 Ill. 110,
55. N. E. 189; Watkins v. Watkins
(Ky. App.), 120 S. W. 341; Simmons

vy. Cabanne, 177 Mo. 336, 76 S. W.
618; Seibert v. Wise, 70 Pa. St. 147.

28 Sullivan v. Garesche, 229 Mo.
496, 129 S. W. 949, 49 L. R. A. (N.
S.) 605.

29 Anderson v. Messinger, 146 Fed.
929,7 L. R. A. (N. S.) 1094; Rogers
y. Highnote, 126 Ga. 740, 56 S. E.
93; Ortmayer v. Elcock, 225 Ill. 342,
80 N. E. 339; Bruce v. Bissell, 119
Ind. 525, 22 N. E. 4, 12 Am. St. 436,
12 Ann. Cas. 436; Chase v. Howie,
64 Kans. 320, 67 Pac. 822; Sheirick
v. Maxwell, 89 S. W. 4, 28 Ky. L.
173; Lord v. Bourne, 63 Maine 368,
18 Am. Rep. 234; Sullivan v. Jones,
129 N. Car. 442, 40 S. E. 113; Yerkes
v. Yerkes, 200 Pa. 419, 50 Atl. 186.

30 Hall v. Priest, 6 Gray (Mass.)
18.

31 Frazer v. Frazer, 74 S. W. 259,
24 Ky. L. 2517.
§ 242 WILLS 218
A valid remainder may exist as to property undisposed of by a
life tenant with power of disposition.®*
A remainder in personal property could not be created at com-
mon law ;** but it is now generally held that an interest or estate

in remainder may be limited after a life estate in such property.**

§ 242. Executory devises—An executory devise is such a
limitation of a future estate and interest in lands as the law ad-
mits in the case of a will, though contrary to the rules of limita-
tions in conveyances inter vivos at common law. It is an estate
created by will to take effect at some future time subsequent to
the death of the testator without any reference to the existence or
continuance of an intermediate estate.** Thus a will devising to
testator’s niece an estate in fee simple, with a provision that if
she married and left no issue the estate should go to the testator’s
brothers and sisters or their children, and that if she left living
issue at her death the estate should go to such issue, was given
effect as an executory devise.°* There are two kinds of executory
devises: one, where an estate is devised to one, but upon some
future event that estate is determined, and the estate thereupon
is to go to another; the other, when the estate is limited to com-
merce in futuro, contrary to the rules of the common law. In
the latter case the fee in the meantime remains in the heir of the
devisor.** An executory devise may be contingent not only on
the event that is to determine the fee, but also on the being of the
person to take when the event occurs.** One of the distinctions

32 Kinney v. Keplinger, 172 Ill. 449,
50 N. E. 131; Keniston v. Mayhew,
169 Mass. 166, 47 N. E. 612; Crozier
v. Bray, 120 N. Y. 366, 24 N. E. 712.

838 Maulding v. Scott, 13 Ark. 88,
56 Am. Dec. 298, :

34Thomas v. Castle, 76 Conn. 447,
56 Atl. 854; Hanvy v. Moore, 140 Ga.
691, 79 S. E. 772; McKee v. McKee,
82 S. W. 451, 26 Ky. L. 736; Burford
v. Aldridge, 165 Mo. 419, 63 S. W.
109, 65 S. W. 720; In re Scull’s Es-
tate, 52 Pa. Super. Ct. 87.

35 St. John v. Dann, 66 Conn. 401,

34 Atl. 110; Glover v. Condell, 163
Til, 566, 45 N. E. 173, 35 L. R.A.
360; Bank’s Will, 87 Md. 425, 40 Atl.
268; Fisher v. Wister, 154 Pa. St.
65, 25 Atl. 1009; Selman v. Robert-
son, 46 S. Car. 262, 24 S. E. 187.

36 Ashby v. McKinlock, 271 Ill. 254,
111 N. E. 101.

37 Nightingale v. Burrell, 15 Pick.
(Mass.) 104, 111.

38 Sullivan v. Garesche, 229 Mo.
496, 129 S. W. 949, 49 L. R. A. (N.
S.) 605.
219 ESTATES OR INTERESTS CREATED § 243:
between a remainder and an executory devise is that a remainder
follows a particular estate, while an executory devise follows a
fee.°° Where there is doubt whether a certain disposition is an
executory devise or a contingent remainder, the courts will favor
the latter.*° The first taker under a will creating an executory
devise has no right to alienate or incumber the property as against
those who may be entitled to succeed thereto upon, the termination
of his estate.**

In creating an executory devise care should be exercised not to
postpone the vesting beyond the period fixed by the rule against
perpetuities.*?

§ 243. Gifts of a use.—For the purpose of convenience,
gifts of the use, possession, enjoyment, rents, profits, in-
terest, and income of property, are usually called gifts of a
“use.” We have seen that a gift of the rents, profits, interest, or
income of property, if there is no disposition of the property
itself, passes the absolute interest in the property to the benefi-
ciary. But this rule is applicable only where the testator has not
expressly or by implication disposed of the corpus in some other
way. Thus a gift of the “profits and benefits” of certain real
estate, followed by a provision for the sale of such real estate at
a fixed time, was held not to pass the fee.“

While a gift of the use or the use and occupation of land will
carry the fee, yet if the gift be to a trustee to permit the benefi-
ciary to occupy without rent, the interest passing will amount to a
license of a use only.** If the use be restricted to life, during mi-

39 Doe v. Considine, 6 Wall. (U.
S.) 458, 18 L. ed. 869; Bristol v. At-
water, 50 Conn. 402; Burleigh v.
Clough, 52 N. H. 267, 13 Am. Rep.
23; Mangum v. Piester, 16 S. Car.
316.

40 Burleigh v. Clough, 52 N. H. 267,
13 Am. Rep. 23; Manderson v. Lu-
kens, 23 Pa. St. 31, 62 Am. Dec. 312.

41 Moody v. Walker, 3 Ark. 147;
St. John vy. Dann, 66 Conn. 401, 34

Atl. 110; Satterfield v. Tate, 132 Ga.
256, 64 S. E. 60.

42 Moody v. Walker, 3 Ark. 147;
Chilcott v. Hart, 23 Colo. 40, 45 Pac.
391, 35 L. R. A. 41; Shepperd v.
Fisher, 206 Mo. 208, 103 S. W. 989;
Lockridge v. Mace, 109 Mo. 162, 18
S. W. 1145.

43 Collier v. Grimesey, 36 Ohio St.
17.

44Le Breton v. Cook, 107 Cal. 410,
§ 244 WILLS 220
nority, during widowhood or during widowhood until marriage,
until a certain age, and the like, only an estate or interest com-
mensurate with the limitation prescribed will pass.*

The time fixed for the termination of the use must be within
the period allowed by law, otherwise the gift may fail or be held
to amount to a gift of the corpus.*® If it is desired that the bene-
ficiary should use and enjoy personal property in specie, without
being subjected to the giving of security for its preservation, the
will should so state.*7 Likewise, if it is desired to exempt such
gift from taxes, insurance, interest on incumbrances, and the like,
the will should so provide.*

§ 244. Rule in Shelley’s Case.—The Rule in Shelley’s Case
is this: Where a freehold estate is limited to one for life, and by
the same instrument the inheritance is limited, either immediately
or after another estate in freehold, to his heirs, or the heirs of his
body, the whole estate vests in him, either in fee simple or in fee
‘tail, in the same manner as if the estate had been given to him and
his heirs, or to him and the heirs of his body; and the words
“heirs” and “heirs of his body” are words of limitation and not
of purchase.*® The rule, though of feudal origin, has been re-
peatedly declared to be in accordance with the general policy of
modern jurisprudence.°° While the rule has been generally abol-
ished by statute in this country,™ it remains a rule of property in

40 Pac. 552; Hadley v. Simmons (N.
J. Eq.), 49 Atl. 816; Jackson v. Jack-
son, 56 S. Car. 346, 33 S. E. 749;
Shindler v. Robinson, 150 App. Div.
875, 135 N. Y. S. 1056.

45 Lewis v. Harrower, 197 Ill. 315,
64 N. E. 374; Fogler v. Titomb, 92
Maine 184, 42 Atl. 360; Diament v.
Lore, 31 N. J. L. 220.

46 See Rule against Perpetuities, §
265.

47 Clarke v. Terry, 34 Conn. 176;
In re Oertle, 34 Minn. 173, 24 N. W.
924, 57 Am. Rep. 48.

48 See post, ch. 31, § 1206.

49 Holt v. Pickett, 111 Ala. 362, 20

So. 432; Norris v. Hensley, 27 Cal.
439; Goodrich v. Lambert, 10 Conn.
448; Griffith v. Derringer,.5 Har.
(Del.) 284; Seay v. Cockrell, 102
Tex. 280, 115 S. W. 1160.

50 Starnes v. Hill, 112 N. Car. 1, 16
S. E. 1011, 22 L. R. A. 598.

51 Watson v. Williamson, 129 Ala.
362, 30 So. 281; Wilkerson v. Clark,
80 Ga. 367, 7 S. E. 319, 12 Am. St.
258; Defreese v. Lake, 109 Mich. 415,
67 N. W. 505, 32 L. R. A. 744, 63 Am.
St. 584; Godman v. Simmons, 113
Mo. 122, 20 S. W. 972; Moore v. Lit-
tel, 41 N. Y. 66; In re Tillinghast, 25
R. I, 338, 55 Atl, 879.
221 ESTATES OR INTERESTS CREATED § 244
the construction of both deeds and wills in several states.°? In
jurisdictions where the rule has been abolished, a devise that
would formerly have vested a fee in the first taker now gives him
a life estate only, with remainder in fee to his heirs.**

Generally speaking the rule is not one of construction or inter-
pretation, but a rule of property,°* and is not governed by the in-
tention of the testator.” But it has been held that where the in-
tention of the testator is clearly ascertainable, it will prevail even
against the rule.°° This rule is not regarded as a device to dis-
cover the intention of the testator, but is only applied after such
intention has been discovered, when, by its own inexorable force,
it unites in the ancestor any estate which his heirs are to take as
such, after a precedent estate given to him, no matter what the
purpose of the testator may have been; and there is a material
and controlling distinction between a devise of an estate to a per-
son named and his lawful heirs, and a devise to the lawful heirs
of a person named.** “As applied to wills the rule is not allowed
to override the manifest and clearly expressed intention of the
testator, but the intention will always be carried into effect if it
can be ascertained. If the language of the will is such as to bring
the case within the rule, full force and effect will be given to it;
but if it clearly appears that the testator had a meaning and inten-
tion different from the rule, this will not be allowed to frustrate
his intention.”

52 Hardage v. Stroope, 58 Ark. 303,
24 S. W. 490; Fowler v. Black, 136
Ill, 363, 26 N. E. 596, 11 L. R. A,
670; Lane v. Utz, 130 Ind. 235, 29 N.
E. 772; Broliar v. Marquis, 80 Iowa
49, 45 N. W. 395; Thomas v. Hig-
gins, 47 Md. 439; Starnes v. Hill, 112
N. Car. 1, 16 S. E. 1011, 22 L. R. A.
598; Carson v. Fuhs, 131 Pa. St. 256,
18 Atl. 1017; Carrigan v. Drake, 36
S. Car. 354, 15 S. E. 339,

53 Copley v. Ball, 176 Fed. 682;
Wilkerson v. Clark, 80 Ga. 367, 7 S.
E. 319, 12 Am. St. 258; Cross v. Hoch,

149 Mo. 325, 50 S. W. 786; King v.
Beck, 15 Ohio 561.

54 Baker v. Scott, 62 Ill. 86.

55 Jones v. Rees, 6 Pennew. (Del.)
504, 69 Atl. 785, 16 L. R. A. (N. S.)
734; Robert v. West, 15 Ga. 122;
Brown v. Bryant, 17 Tex. Civ. App.
454, 44 S. W. 399.

56 Slemmer v. Crampton, 50 Iowa
302; Albin v. Parmele, 70 Nebr. 740,
98 N. W. 29; Tendick v. Evetts, 38
Tex. 275.

57 Conger v. Lowe, 124 Ind. 368, 24
N. E. 889, 9 L. R. A. 165n.

58 Jones Real Property, § 606.
§ 245 WILLS 222

While the Rule in Shelley’s Case was laid down as applicable to
real estate only, with reference to which alone could the word
“heirs” properly be used as a word of limitation, it has, in some
cases, been extended to testamentary dispositions of personal
property, with the same result of giving an absolute title to the
taker of a mere life estate by reason of a subsequent limitation to
his heirs, upon the ground that words which would pass an estate
of inheritance in real estate must be construed as giving an abso-
lute title to personal property.*® It has been held, however, that
the rule has no application in a testamentary disposition of per-
sonal property.** A thorough understanding of the application
of this rule is of great practical importance, both in drawing wills
and in construing their provisions.

§ 245. Rule in Wild’s Case.-—According to the Rule in
Wild’s Case,® if there be in a will a limitation of real estate to A
and his children or issue, A takes an estate tail, provided there be
no children or issue at the time the will is made. And his estate
will not be divested by the subsequent birth of a child.°* Modern
statutes, however, usually give a fee simple where the common
law gave only a life estate, and the Rule in Wild’s Case would
seem to be no longer necessary, for it would cut down the estate,
and not enlarge it as it was intended to do.** But if there were
children or a child in being at the time the will was made, such
children or child would take by purchase,®* unless the context of
the will shows that the testator intended the first taker to have a
fee.

59 Glover v. Condell, 163 Ill. 566, 45
N. E. 173, 35 L. R. A. 360; Sands v.
Old Colony Trust Co., 195 Mass. 575,
81 N. E. 300; Knox v. Barker, 8 N.
Dak. 272, 78 N. W. 352; Taylor v.
Lindsay, 14 R. I. 518.

61 Gross v. Sheeler, 7 Houst. (Del.)
280, 31 Atl. 812; Jones v. Rees, 6
Pennew. (Del.) 504, 69 Atl. 785, 16
L. R.A. (N. S.) 734.

626 Coke, 16b.

638 Loftin v. Murchison, 80 Ga. 391,
7 S. E, 322; Moore v. Gary, 149 Ind.

51, 48 N. E. 630; Silliman v. Whit-
aker, 119 N. Car. 89, 25 S. E. 742;
Oyster v. Orris, 191 Pa. St. 606, 43
Atl. 411.

64 Davis v. Ripley, 194 Ill. 399, 62
N. E. 852.

65 Forrest Oil Co. v. Crawford, 77
Fed. 106; Biggs v. McCarty, 86 Ind.
352, 44 Am. Rep. 320; Gordon v.
Jackson, 58 N. J. Eq. 166, 43 Atl. 98;
Fitzpatrick v. Fitzpatrick, 100 Va.
552, 42 S. E. 306, 93 Am. St. 976.

66 Hood v. Dawson, 98 Ky. 285, 33
223 ESTATES OR INTERESTS CREATED § 245

The Rule in Wild’s Case has no application where an estate is
given to one expressly for life, with “remainder to his children”
as the first taker has a life estate and his children a remainder as
purchasers.’ In some jurisdictions Wild’s Case has been fol-
lowed in part, when there were children born at the time the will
was executed, and the ancestor and the children in such cases
have been held to take as tenants in common in fee simple.**

S. W. 75, 17 Ky. L. 880; Jones v. 68 Mitchell v. Mitchell, 73 Conn.

Jones, 13 N. J. Eq. 236; Houck v. 303, 47 Atl. 325; Jamison v. Mc-

Patterson, 126 N. Car. 885, 36 S. E. Whorter, 7 Houst. (Del.) 242, 31

198. Ati. 517; Loyless v. Blackshear, 43
67 Crawford v. Clark, 110 Ga. 729, Ga. 327; Allen v. Hoyt, 5 Metc.

36 S. E. 404, 6 Prob. Rep. Ann. 15;  (Mass.) 324; Gordon v. Jackson, 58

Crandell v. Barker, 8 N. Dak. 263, 78 N. J. Eq. 166, 43 Atl. 98,

N. W. 347; Lewis v. Bryce, 187 Pa,

St. 362, 41 Atl, 275,
CHAPTER XIII

VESTED AND CONTINGENT

SECTION

250. Vested and contingent interests
defined and distinguished.

251. Intention of testator respecting
vesting.

252. Construction in favor of vesting.

253. Condition or contingency on
which interest vests.

254. Vesting under certain words of
futurity.

ESTATES AND INTERESTS

SECTION

255. Vesting indicated by form of
gift.

256. Interest contingent because of
contingency of person.

257. Vested interest subject to open
and let in.

258. Vested interest subject to be di-
vested.

§ 250. Vested and contingent interests defined and dis-

tinguished.— Perhaps no question can arise in the course of
legal inquiries more doubtful in its nature, or less referable to
fixed and certain rules and principles, than whether the words
of a devise or bequest constitute a vested or contingent interest.
An estate is said to be vested when there is an immediate right of
present enjoyment, or a present fixed right of future enjoyment.’
“By a vested estate, in relation to interests of a freehold quality, is
to be understood an interest clothed, as to legal estates, with a legal
seizin, or, as to equitable estates, with an equitable seizin, which
enables the person to whom the interest is limited to exercise the
right of present or future enjoyment immediately, in point of
estate.” When a person has a fixed interest in a definite piece of
property or fund, which is clothed with all the attributes of own-
ership, he is said to have a vested title.

The term “vested estate” applies to equitable as well as to legal

1Flanner v. Fellows, 206 Ill. 136,
68 N. E. 1057; Clarke v. McCreary,
20 Miss. 347; Bennett v. Garlock, 10
Hun (N. Y.) 328; In re Moran’s
Will, 188 Wis. 177, 95 N. W. 367.

21 Prest. Est. 65. See also Thorn-

ton v. Zea, 22 Tex. Civ. App. 509, 55
S. W. 798.

3 Johnson v. Washington L. & T.
Co., 33 App. D. C. 242; Wiess v.
Goodhue, 98 Tex. 274, 83 S. W. 178.

224
225 VESTED AND CONTINGENT ESTATES AND INTERESTS § 250
estates,* and includes all estates which are not contingent, whether
in possession, reversion, or remainder.°

An interest is said to be contingent where there is no present
fixed right of either present or future enjoyment ; but where there
is a chance of enjoyment in the future if a certain specified event
happens.® “It is not the uncertainty of enjoyment in the future,
but the uncertainty of the right to that enjoyment, that makes the
difference between the vested and the contingent interest.”* Con-
tingent interests do not constitute an estate in the land, but a mere
chance that there may be an estate if the contingency turn out
favorably to the beneficiary.* But vested interests constitute a
fixed and certain estate, though the right to possession is deferred
to some future period, dependent upon the happening of some
future contingency.®

Where, under the terms of the gift, the estate is limited to take
effect either to a dubious and uncertain person or upon a dubious
and uncertain event, so that the preceding particular estate may
never be determined and the remainder may never take effect, the
estate or interest is contingent.*° On the other hand, an estate
which is limited to an ascertained person in being, whose right to
the estate is fixed and certain, and does not depend on the happen-
ing of any future event, but whose enjoyment and possession is
postponed to some future time, the interest is vested.”*

A vested estate or interest may be assigned, mortgaged, con-
veyed or devised,*? and if the beneficiary is clothed with the pres-

4Canfield v. Canfield, 118 Fed. 1;
Shackley v. Homer, 87 Nebr. 146, 127
N. W. 145.

5 Ward v. Edge, 100 Ky. 757, 39 S.
W. 440, 19 Ky. L. 59.

6 Kingman v. Harmon, 131 Itl. 171,
23 N. E. 430; Hale v. Hobson, 167
Mass. 397, 45 N. E. 913.

72 Kent Comm. 206. See also
Smaw v. Young, 109 Ala. 528, 20 So.
370; Hawkins v. Bohling, 168 Ill. 214,
48 N. E. 94; Lewis v. Howe, 174 N.
Y. 340, 66 N. E. 975.

8 Butterfield v. Sawyer, 187 Ill. 598,

15—Tuomp. WILLS.

58 N. E. 602, 52 L. R. A. 75, 79
Am. St. 246.

2 Woodley v. Calhoun, 69 S. Car.
285, 48 S. E. 272.

10 Poor v. Considine, 73 U. S. 458,
18 L. ed. 869; Marvin v. Ledwith, 111
Ill. 144; Bunting v. Speek, 41 Kans.
424, 21 Pac. 288, 3 L. R. A. 690.

11 Ruddell v. Wren, 208 Ill. 508, 70
N. E. 751; Faber v. Police, 10 S. Car.
376.

12 Acree v. Dabney, 133 Ala. 437, 32
So. 127; Dunn v. Schell, 122 Cal. 626,
55 Pac. 595; Cross v. Robinson, 21
§ 251 WILLS 226

ent right of alienation the estate or interest is vested; otherwise
not.”

§ 251. Intention of testator respecting vesting—lIn a
given case the question of the time of vesting is one of intention,
as that may be manifested in the instrument creating the estate as
to which the question arises. The testator may fix the period of
vesting to suit himself, and, when this intention is manifested
with reasonable certainty, the law will give it effect, if the time so
fixed is within that which the rule of law fixes.** All rules of
construction pertaining to the vesting of estates or interests under
a will will yield to the clearly expressed intention of the testator.*®
The testator may express his intention to postpone vesting by
describing the class in connection with the death of the life tenant
or other future contingency as “then living,” or by the use of some
equivalent words.*® But a testator’s particular intent, shown by
a single provision standing by itself, must yield to the general
leading intent, gathered from the whole instrument.”

So in construing a will, all of the provisions will be regarded
for the purpose of ascertaining the intention of the testator, and
if any particular paragraph of the will indicates an intent varying
from that which is manifest from a consideration of all the other
provisions, the general intent must prevail.** It is not always
safe for the testator to rely on inference in the postponement of
vesting, as a supposed contrary intent may be gathered from

Conn. 379; Crossley v. Leslie, 130 Ga.
782, 61 S. E. 851, 14 Ann. Cas. 703.

13 Gates v. Seibert, 157 Mo. 254, 57
S. W. 1065, 80 Am. St. 625; Thorn-
ton v. Zea, 22 Tex. Civ. App. 509, 55
S. W. 798.

14 Thom v. Thom, 101 Md. 444, 61
Atl. 193.

15In re Blake, 157 Cal. 448, 108
Pac. 287; Heisen v. Ellis, 247 Ill. 418,
93 N. E. 362; Archer v. Jacobs, 125
Iowa 467, 101 N. W. 195; Poultney
y. Tiffany, 112 Md. 630, 77 Atl. 117;

Tindall v. Tindall, 167 Mo. 218, 66
S. W. 1092; Freeman v. Freeman,
141 N. Car. 97, 53 S. E. 620; Biddle’s
Appeal, 99 Pa. St. 525; Rogers v.
Rogers, 11 R. I. 38; Harris v. Har-
ris, 82 Vt. 199, 72 Atl. 912; In re
Moran, 118 Wis. 177, 96 N. W. 367.

16 McGillis v. McGillis, 154 N. Y.
532, 49 N. E. 145,

17 Phelps v. Bates, 54 Conn. 11, 5
Atl. 301, 1 Am. St. 92.

18 McMurray v. Stanley, 69 Tex.
227, 6 S. W. 412.
227 VESTED AND CONTINGENT ESTATES AND-INTERESTS § 252
other parts of the will.° It is safer to expressly provide that the
estate shall vest on the happening of a certain event.”°

§ 252. Construction in favor of vesting.—All estates cre-
ated by will are to become vested upon the death of the testator,
unless there is a provision to the contrary. And where the will
contains words limiting the period of enjoyment of the estate to
some future time, after the death of the testator, it may then be-
‘come a question whether the vesting of the estate is thus intended
to be delayed, or only the time for present enjoyment.?* Where
the will contains no provisions or conditions for future estates or
for the postponement of enjoyment or distribution it is easy to
determine when the gift vests, but where the will creates some
form of future estate, or where the possession or enjoyment of
the estate is postponed it is sometimes very difficult to determine
when the estate vests. The law favors that construction by which
gifts will be vested at the earliest moment consistent with a fair
interpretation of the whole will,” which is usually at the death of
the testator.** Even where the will contains a provision or con-
dition for a future estate or for the postponement of enjoyment
or distribution, the estate will be held to vest at the earliest possi-
ble moment.**

19In re Brown, 154 N. Y. 313, 48
N. E. 537; Goebel v. Wolf, 113 N. Y.
405, 21 N. E. 388, 10 Am. St. 464.

20 See post, ch. 30, 8§ 844-862.

21 McCarty v. Fish, 87 Mich. 48, 49
N. W. 513.

22Johnson v. Wash L. & T.
Co., 224 U. S. 224, 56 L. ed. 741, 32
Sup. Ct. 421; Crawford v. Engram,
153 Ala. 420, 45 So. 584; Booe v.
Vinson, 104 Ark. 439, 149 S. W. 524;
In re De Vries, 17 Cal. App. 184, 119
Pac. 109; Morton Tr. Co. v. Chitten-
den, 81 Conn. 105, 70 Atl. 648; Sump-
ter v. Carter, 115 Ga. 893, 42 S. E.
324, 60 L. R. A. 274; Mclaughlin v.
Penney, 65 Kans. 527, 70 Pac. 341;
Dickerson v. Dickerson, 211 Mo. 483,
110 S. W. 700.

23 Phinizy v. Foster, 90 Ala. 262, 7

So. 836; Rubencane v. McKee, 6 Del.
Ch. 40, 6 Atl. 639; Sumpter v. Car-
ter, 115 Ga. 893, 42 S. E. 324, 60 L.
R. A. 274; Grimmer v. Friederich,
164 Ill. 245, 45 N. E. 498; Aspy v.
Lewis, 152 Ind. 493, 52 N. E. 756;
Hersey v. Purington, 96 Maine 166,
51 Atl. 863; Whall v. Converse, 146
Mass. 345, 15 N. E. 660; Rood v.
Hovey, 50 Mich. 395, 15 N. W. 525;
Kimble v. White, 50 N. J. Eq. 28, 24
Atl. 400; Byrnes v. Stilwell, 103 N.
Y. 453, 9 N. E. 241, 57 Am. Rep. 760;
Galloway v. Carter, 100 N. Car. 111,
5 S. E. 4; Patton v. Ludington, 103
Wis. 629, 79 N. W. 1073, 74 Am. St.
910.

24Doe v. Considine, 6 Wall. (U.
S.) 458, 18 L. ed. 869; Gregory v.
Welch, 90 Ark. 152, 118 S. W. 404;
§ 253 WILLS 228

In doubtful cases courts will incline to construe a devise or
legacy as vested rather than contingent. The law always gives
preference to vested over contingent interests. It does not favor
the abeyance of estates. Where it is a remainder after a life
estate, it is regarded as a vested remainder, and the possession

only is postponed.”

§ 253. Condition or contingency on which interest vests.
—An estate may be made to vest on one or more of a great va-
riety of contingencies; but when it is made to depend on two or
more contingencies, they must all take place before the vesting
will occur.** The contingency may be the “defeat of a previous
interest upon which the limitation over depends,’ or a change in
the character of the beneficiary,”* or the exercise of a power by a
trustee,”® or the survivorship of the testator by the beneficiary, or
the profitable character of certain of the testator’s investments,**
or the death of another than the beneficiary without issue.’’** A
common contingency is where the gift is made to depend on the
beneficiary surviving some designated person. As long as such
designated person lives the gift is contingent.**

Carpenter v. Perkins, 83 Conn. 11, 74 E. 482; Hayes v. Tabor, 41 N. H.

Atl. 1062; Jossey v. Brown, 119 Ga.
758, 47 S. E. 350.

25 Bethea v. Bethea, 116 Ala. 265,
22 So. 561; Beckley v. Leffingwell, 57
Conn. 163, 17 Atl. 766; Legwin v.
McRee, 79 Ga. 430, 4 S. E. 863; Mc-
Connell v. Stewart, 169 Ill. 374, 48 N.
E. 201; Gingrich v. Gingrich, 146 Ind.
227, 45 N. E. 101; Cox v. Handy, 78
Md. 108, 27 Atl. 227, 501; Pike v.
Stephenson, 99 Mass. 188; Kimble v.
White, 50 N. J. Eq. 28, 24 Atl. 400;
Stokes v. Weston, 142 N. Y. 433, 37
N. E. 515; Pennsylvania Co.’s Ap-
peal, 109 Pa. St. 489, 1 Atl. 82; Lin-
ton v. Laycock, 33 Ohio St. 128;
Weatherhead v. Stoddard, 58 Vt.
529, 5 Atl. 517, 56 Am. Rep. 573;
Baker v. McLeod, 79 Wis. 534, 48 N.
W. 657.

26 Donnell v. Newburyport Homeo-
pathic Hospital, 179 Mass. 187, 60 N.

521; Dimmick v. Patterson, 142 N.
Y. 322, 37 N. E. 109; Manderson v.
Lukens, 23 Pa. St. 31, 62 Am. Dec.
312,

27 Calvin v. Springer, 28 Ind. App.
443, 63 N. E. 40; Baird v. Winstead,
123 N- Car. 181, 31 S. E. 390; In re
Kennedy’s Estate, 190 Pa. St. 79, 42
Atl, 459.

28 Markham v. Hufford, 123 Mich.
505, 82 N. W. 222, 48 L. R. A. 580,
81 Am. St. 222.

29 Crist v. Schank, 146 Ind. 277, 45
N. E. 190.

30Oetjen v. Diemmer,
1005, 42 S. E. 388.

31In re Patterson’s Estate, 173 Pa.
185, 34 Atl. 117.

82 Farmers’ L. & T. Co. v. Ferris,
67 App. Div. 1, 73 N. Y. S. 475.

83 Turner v. Balfour, 62 Conn. 89,
25 Atl. 448; Phayer v. Kennedy, 169

115 Ga.
229 VESTED AND CONTINGENT ESTATES AND INTERESTS § 253

Where the gift is made to depend entirely on the attainment by
the beneficiary of a designated age it is contingent ;°* but if the
gift is to a named person, and its payment is postponed until he
attains a certain age, it is vested.° “A bequest to A at twenty-
one, and a bequest to A payable at twenty-one, do not much differ
in expression; yet one is a vested, the other a contingent gift.”**
“Where real or personal estate is devised or bequeathed to such
of the children, or to such child or individual as shall attain a
given age, or the children, etc., who shall sustain a certain char-
acter, or do a particular act, or be living at a particular time, with-
out any direct gift to the whole class, immediately preceding such
restrictive description; so that the uncertain event forms part of
the original description of the devisee or legatee,—in such case,
the interest so devised or bequeathed is necessarily contingent on
account of the person. For until the age is attained, the charac-
ter sustained, or the act performed, the person is unascertained ;
there is no person in rerum natura answering the description of
the person who is to take as devisee or legatee.’”*”

Where the gift is to be severed instanter from the general es-
tate for the benefit of the beneficiary, and in the meantime the
interest thereof is to be paid to him, that is indicative of the in-
tent of the testator that the beneficiary shall at all events have the
principal, and is to wait only for the payment until the day fixed.*®
But it has been held that where a will gives the residuary estate
to trustees to pay over to a beneficiary a certain portion of the
income until he attains a certain age, and then to convey, transfer,
and pay over to him certain proportions of the residue of the real

Ill. 360, 48 N. E. 828; Lepps v. Lee, 77 N. E. 630; Fuller v. Fuller, 58 N.

92 Ky. 16, 17 S. W. 146, 13 Ky. L.
317; In re High’s Estate, 136 Pa. St.
222, 20 Atl. 42f, 423.

34 Waters v. Waters, 24 Md. 430;
Dickerson v. Sheehy, 156 App. Div.
101, 141 N. Y. S. 35; In re Raab, 79
Misc. 185, 139 N. Y. S. 869.

35 State v. Main, 87 Conn. 175, 87
Atl. 38; Hall v. David, 67 Ga. 72;
Minot v. Purrington, 190 Mass. 336,

Car. 223; Waddell v. Waddell, 68 S.
Car. 335, 47 S. E. 375.

36 Hawkins’ Wills, 225.

37 Smith Executory Interests, § 281.
See also Blatchford v. Newberry, 99
Ill. 11; Wilhelm v. Calder, 102 Iowa
342, 71 N. W. 214; In re Schuldt’s
Estate, 199 Pa. 58, 48 Atl. 879.

38 Warner v. Durant, 76 N. Y. 133.
§ 254 WILLS 230

estate and personalty, his interest in the residue is contingent on
his attaining that age.®°

If the gift is made to depend on the marriage or remarriage of
a designated person, it is contingent until the event takes place,
when it vests.*° If the interest upon a legacy or share of residue
is given to the legatee in the meantime or until the time of pay-
ment arrives, the gift is vested.** The rule is the same where the
interest is given to other persons to be applied for the benefit of
the legatee.*? Where the interest is made-applicable to support,
the gift is vested.** But it seems that where the interest is given
as a common fund for the maintenance of all members of a class,
the legacy does not vest.** Where there is no gift of an aliquot
share of the income to any individual child, but only a trust for
maintenance out of the income of the whole fund, the gift is not
vested.** If the gift or interest itself is contingent on the legatee
attaining a certain age, so that the interest is to follow the fate of
the principal, the principal is not vested.**

§ 254. Vesting under certain words of futurity—Whether
a legacy is contingent or vested depends upon whether the con-
tingency, if any, is annexed to the gift or to the time of pay-
ment.*? If futurity is annexed to the substance of the gift, the
vesting is suspended; but where the gift is absolute, and the time
of payment only is postponed, the gift vests at once.** Words or
phrases of futurity, such as “when,” “then,” and “from and
after,” in a devise of a remainder limited upon a particular estate,
determinable on an event which must necessarily happen, are con-
strued to relate to the time of the enjoyment of the estate, and not

39 Dickerson v. Sheehy, 156 App.
Div. 101, 141 N. Y. S. 35.

40 Carr v. Bredenberg, 50 S. Car.
471, 27 S. E. 925.

41 Provenchere’s Appeal, 67 Pa. 463.

42 Zartman v. Ditmars, 37 App. Div.
173, 55 N. Y. S. 908; Robert’s Ap-
peal, 59 Pa. St. 70, 98 Am. Dec. 312.
But see Johnson v. Terry, 139 Ala.
614, 36 So. 775.

43 Provenchere’s Appeal, 67 Pa. St.
463.

44 Lloyd v. Lloyd, 3 Kay & Johns.
20.
45 In re Parker, 16 Ch. Div. 44.

46 Knight v. Knight, 2 Sim. & Stu.
490.

47 Muhlenberg’s
587.

48 Smith v. Edwards, 88 N. Y. 92.

Appeal, 103 Pa.
§ 254

231 VESTED AND CONTINGENT ESTATES AND INTERESTS

99 668 oF ce ”
if, :

to the time of its vesting.*® The words “when, at
“upon,” ‘on arrival” and the like as applied to the age when the
devisee shall take, render such bequest prima facie contingent.*°
But it has been held that a gift to a legatee, to be paid to him if he
attain twenty-one, is vested.°* The rule is the same where the
bequest is to a class or in the form of a direction to pay.”

But these expressions are ambiguous, and slight circumstances
in the context may be sufficient to show that the attainment of a
specified age was not intended as a condition but only to fix the
time of actual payment.** It is competent for the testator in
terms to direct whether the estate over shall vest or not, and un-
less very decisive terms of contingency are used, the estate will
not be held contingent.**

When the words used are equivocal, leaving it in some doubt
whether words of contingency or condition apply to the gift itself
or to the time of payment, courts are inclined to construe them
rather as applying to the time of payment, and to hold the gift
rather as vested than contingent. A gift of real estate to a
devisee “at’’ a given age or marriage, “when” or “as” he shall at-
tain, or “upon” or “from and after” he attains a given age, passes
to such devisee an immediate vested estate, not deféasible in the
event of his death under the specified age.°* But the use of these
words with reference to gifts of personal property will usually
create contingent interests.°’ A devise of real estate to A “if,”
or “when,” he shall arrive at a certain age, with limitation over

49Grimmer y. Friederich, 164 IIL.
245, 45 N. E. 498; Moores v. Hare,
144 Ind. 573, 43 N. E. 870; Marsh
v. Hoyt, 161 Mass. 459, 37 N. E. 454;
Neilson v. Bishop, 45 N. J. Eq. 473,
17 Atl. 962; Hersee v. Simpson, 154
N. Y. 496, 48 N. E. 890; In re Car-
stensen’s Estate, 196 Pa. St. 325, 46
Atl. 495; Patton v. Ludington, 103
Wis. 629, 79 N. W. 1073, 74 Am. St.
910.

50 Webb v. Webb, 92 Md. 101, 48
Atl. 95, 84 Am. St. 499,

51 Furness v. Fox, 1 Cush. (Mass.)
134, 48 Am. Dee. 593.

52 Leake v. Robinson, 2 Mer. 363.

53 Kimball v. Crocker, 53 Maine
263; Chew’s Appeal, 37 Pa. St. 23.

54 McGillis v. McGillis, 154 N. Y.
532, 49 N. E. 145.

55 Eldridge v. Eldridge, 9 Cush.
(63 Mass.) 516.

56 Austin v. Bristol, 40 Conn. 120,
16 Am. Rep. 23; Roome v. Phillips,
24 N. Y. 463.

57 Seibert’s Appeal, 13 Pa. St. 501.
But see Colt v. Hubbard, 33 Conn.
281.
§ 255 WILLS 232
in the event of his death before attaining that age, the attainment
of the given age is held to be a condition subsequent and not
precedent, and A takes an immediate vested estate, subject to be
divested upon his death before arriving at the specified age.”
And if the devise be to A ‘if,’ or ‘when,’ he shall attain a given
age, with a limitation over upon his death or under that age with-
out issue, A takes a vested estate, defeasible only in the event of
his death without issue under the specified age.* If the devise be
to A “at,” “upon,” or “from and after,” attaining a given age,
with the gift over, the rule is the same. The provision for the
gift over is held to show testator’s intention that the gift to A is
to vest at once, subject to be divested upon his death before reach-
ing the specified age.°°

§ 255. Vesting indicated by form of gift-—The question
whether an estate is vested or contingent will often be determined
by the form of the gift. Thus it has been held that where the
will directs the estate to be distributed “according to law” it will
vest immediately in the distributees.°* Also a vested estate is
commonly indicated by words of limitation as to heirs or repre-
sentatives of the first taker.®?

It is a well settled rule of construction that, where an absolute
property in a fund is bequeathed in fractional interests in succes-
sion at periods which must arrive, the interests of the first and
subsequent takers will vest together.** Where the gift’is accom-
panied with a distinct direction to pay over or distribute in the
future,** or where there are words importing a gift in addition to

58 Roome v. Phillips, 24 N. Y. 463;
Kelso v. Cuming, 1 Redf. (N. Y.)
392; Edwards v. Hammond, 1 B. &
P. N. R. 3241.

59 Phipps v. Ackers, 9 Cl. & F. 583;
Holtby v. Wilkinson, 28 Grant Ch.
(U. C.) 550,

60 Boraston’s Case, 3 Coke 51; In
re Collier’s Will, 40 Mo. 287; In re
Engle’s Estate, 167 Pa. St. 463, 31
Atl. 681.

61 Hersee v. Simpson, 154 N. Y.

496, 48 N. E. 890; In re McGovran’s
Estate, 190 Pa. St. 375, 42 Atl. 705.

62 Woodman v. Woodman, 89
Maine 128, 35 Atl. 1037; Thompson
v. O’Dell, 22 Ohio C. C. 200, 12 Ohio
C. D. 396; Burton v. Provost, 75 Vt.
199, 54 Atl. 189.

63 Barnes Cycle Co. v. Haines, 69
N. J. Eq. 651, 61 Atl. 515; Lewisohn
v. Henry, 179 N. Y. 352, 72 N. E.
239.

64 Webb v. Webb, 92 Md. 101, 48
233 VESTED AND CONTINGENT ESTATES AND INTERESTS § 256
the direction to pay over, divide, or distribute,°* or where the
postponement of payment is for the purpose of letting in an inter-
mediate estate,°° then the interest may be vested; but where the
only gift is embodied in a direction to pay or distribute in the
future, the legacy will be deemed contingent.” A gift is not ren-
dered contingent by the mere postponement of payment thereof,**
unless such postponement is for reasons personal to the legatee.”

By the terms of the will a gift is sometimes prevented from
vesting until the time for enjoyment.”°

§ 256. Interest contingent because of contingency of per-
son.— Where the terms of the gift are such that the benefi-
ciary can not be ascertained until the happening of some future
event, the interest in remainder is contingent. Thus, where a gift
is made to a class in such terms that the class can not be ascer-
tained at the time of the testator’s death, but must be asser-
tained at some future time, until such ascertainment the interest
of the members of such class corresponding to such description is
a mere contingency according to numerous holdings.” A bequest
to one for life, and at her death to be equally divided among her
children, creates a contingent remainder in the children, for, until
the death of the life tenant, it can not be ascertained which of her

Atl. 95, 84 Am. St. 499; Wardwell v.
Hale, 161 Mass. 396, 37 N. E. 196, 42
Am. St. 413.

65 In re Crane, 164 N. Y. 71, 58 N.
E. 47; Seibert’s Appeal, 19 Pa. St.
49,

66 Tn re Crane, 164 N. Y. 71, 58 N.
E. 47.

67 Angus v. Noble, 73 Conn. 56, 46
Atl, 278; Armstrong v. Barber, 239
Ill. 389, 88 N. E. 246; Haviland v.
Haviland, 130 Iowa 611, 105 N. W.
354,5 L. R. A. (N. S.) 281.

68 Abbott v. Lewis, 77 N. H. 601,
88 Atl 98; In re Lincoln Trust Co.,
78 Misc. 325, 139 N. Y. S. 682.

69In re Engles’ Estate, 166 Pa. St.
280, 31 Atl. 76.

70 Ballentine v. Foster, 128 Ala. ‘638,

30 So. 481; Harding v. Harding, 174
Mass. 268, 54 N. E. 549; Goebel v.
Wolf, 113 N. Y. 405, 21 N. E. 388, 10
Am. St. 464.

71 Buchanan v. Denig, 84 Fed. 863;
Gindrat v. Western R. Co., 96 Ala.
162, 11 So. 372, 19 L. R. A. 839;
Madison v. Larmon, 170 Ill. 65, 48 N.
E. 556, 62 Am. St. 356; Bates v. Gil-
lett, 132 Ill. 287, 24 N. E. 611; Loeb
v. Struck, 42 S. W. 401, 19 Ky. L.
935; Reid v. Walbach, 75 Md. 205, 23
Atl. 472; Fitzhugh v. Townsend, 59
Mich. 427, 27 N. W. 561; Whitesides
v. Cooper, 115 N. Car. 570, 20 S. E.
295; Wilson v. Denig, 166 Pa. St. 29,
30 Atl. 1025; Nicholson v. Cousar, 50
S. Car. 206, 27 S. E. 628; Forrest v.
Porch, 100 Tenn. 391, 45 S. W. 676.
§ 25/7, 234

WILLS
children will survive her.”7 Where the interest of a beneficiary is
contingent until the time for ascertainment of the members of a
class, it has been held that such interest does not pass to the
trustee or assignee in bankruptcy of such beneficiary.”

In some cases where the gift was to a class upon their attaining
a certain age, a reference to “the share” of a member of the class
dying before that age has been held to show that the members of
the class took a vested interest." On the death of such beneficiary
before his interest becomes vested, such interest does not pass to
his issue unless specifically so provided by the terms of the will ;”°
nor has the surviving wife or husband of such beneficiary any in-
terest in the property in which the decedent had such contingent
interest.”®

§ 257. Vested interest subject to open and let in.—Where
a gift is to a class, which may increase or decrease in number
during a particular estate, the gift will vest in those members of
the class who are alive at the death of the testator, subject to
open and let in all after-born members of the class.” “Where a
remainder is limited to the use of several persons who do not all
become capable at the same time, as a devise to A for life, remain-
der to his children, the children living at the death of the testator
take vested remainder, subject to be disturbed by after-born chil-
dren. The remainder vests in the persons first becoming capable,
and the estate opens and becomes devested in quantity by the birth
of subsequent children, who are let in to take vested portions of

72 Allison v. Allison, 101 Va. 537,
44 S. E. 904, 63 L. R. A. 920.

73 Buchanan v. Denig, 84 Fed. 863.
But see Nash vy. Nash, 12 Allen
(Mass.) 345.

74In re Smith’s Estate, 226 Pa. 304,
75 Atl. 425.

7 Fitzhugh v. Townsend, 59 Mich.
427, 27 N. W. 561; Whitesides v.
Cooper, 115 N. Car. 570, 20 S. E. 295,

76 Wilson v. Denig, 166 Pa. St. 29,
30 Atl. 1025.

77 Johnes v. Beers, 57 Conn. 295, 18
Atl. 100, 14 Am. St. 101; Cooper v.

Mitchell Inv. Co., 133 Ga. 769, 66 S.
E. 1090, 29 L. R. A. (N. S.) 291;
Springer v. Congleton, 30 Ga. 976;
Siddons v. Cockrell, 131 Ill. 653, 23
N. E. 586; Alsman v. Walters (Ind.),
106 N. E. 879; Kilgore v. Kilgore,
127 Ind. 276, 26 N. E. 56; Mercantile
Bank v. Ballard’s Assignee, 83 Ky.
481, 7 Ky. L. 478, 4 Am. St. 160;
Cox v. Handy, 78 Md. 108, 27 Atl.
227, 501; Dodd v. Winship, 144 Mass.
461, 11 N. E. 588; Clark v. More-
hous, 74 N. J. Eq. 658, 70 Atl. 307;
Cook v. McDowell, 52 N. J. Eq. 351,
235 VESTED AND CONTINGENT ESTATES AND INTERESTS § 258

‘the estate.”"* Under this rule, children born or begotten prior to,
and in esse at the time of, the death of the testator will be entitled
to share in the distribution, but those living at the execution of
the will who die before the testator are excluded.”

The share of each member of the class, being vested, may be
granted or devised during the existence of the particular estate,
subject, however, to diminution as to the amount or quantity
which the remainderman or his heirs will ultimately receive by
reason of the class being subject to open and let in after-born
members.*° The general rule is that a devise or bequest to a class,
if no time for vesting is fixed, will take effect at the death of the
testator. But where the will, either by express words, or neces-
sary implication, fixes a different time, and the whole class is not
then completed, the devise or remainder will vest in those then
existing who will hold it subject to be opened so as to let in after-
born persons who shall belong to the class at the time fixed by the
will for its final completion.*t This form of vested gift is inde-
feasible,** and has all the qualities of an absolute gift except that
it is subject to be diminished by the subsequent birth of new mem-
bers into the class during the duration of the particular estate.**

§ 258. Vested interest subject to be divested.—There is
a class of gifts occupying an intermediate position between abso-
lute gifts and contingent gifts which vest in the beneficiary sub-
ject to being divested by the happening of a contingency or the
exercise of a power. Until the contingency happens or the power
is exercised this gift has all the incidents of an indefeasible inter-

est. If the contingency never

30 Atl. 24; Losey v. Stanley, 147 N.
Y. 560, 42 N. E. 8; Coggins v. Flythe,
113 N. Car. 102, 18 S. E. 96; In re
Thomman’s Estate, 161 Pa. St. 444,
29 Atl. 84; Toole v. Perry, 80 Va.
681, 7 S. E. 118.

784 Kent Comm. 197.

79 Thomas v. Thomas, 149 Mo. 426,
51 S. W. 111, 73 Am. St. 405; Heisse
v. Markland, 2 Rawle (Pa.) 274, 21
Am. Dec. 445; Whitbeard v. St. John,
10 Ves. Jr. 152,

happens or the power is never

80 Rosenau v. Childress, 111 Ala.
214, 20 So. 95; Crawley v. Blackman,
81 Ga. 775, 8 S. E. 533.

81 Buckner v. Buckner, 255 Mo. 371,
164 S. W. 513.

82 Boston Safe Deposit &c. Co. v.
Nevin, 212 Mass. 232, 98 N. E. 1051.

83 Johnson v. Webber, 65 Conn. 501,
33 Atl. 506; Losey v. Stanley, 147 N.
Y. 560, 42 N. E. 8
§ 258 WILLS 236
exercised the gift becomes absolute.** The most common exam-
ple of this class of gifts is where a remainder is vested subject to
be divested on the death of the first taker leaving children,*’ or
the birth of issue of another.** But such a gift is sometimes made
“subject to be divested by the exercise of a power of appointment*’
or disposition.®* If such estate is created by words of gift upon
condition subsequent without any gift over, the first taker’s in-
terest is terminated only upon entry or claim made by the testa-
tor’s heirs.*® But where the estate is created upon a conditional
limitation, the estate of the first taker comes to an end upon a
breach of the condition, and the subsequent estate vests in the
remainderman immediately without entry.°°

Divesting provisions and conditions subsequent are always
strictly construed, and where the language used is doubtful or
ambiguous courts will decide the doubt in favor of the first
taker." Hence the importance of using clear and unambiguous
language when it is desired to make a vested gift subject to being
divested upon the happening of a contingency. The time to
which the contingency relates should be clearly indicated, else it
may be referred to the death of the testator.°* In order that an
estate once vested may be divested on the happening of a contin-
gency, the contingency must have completely and literally hap-
pened.°?

-** Sumpter v. Carter, 115 Ga. 893,
42 S. E. 324, 60 L. R. A. 274,

85 Kilgore v. Kilgore, 127 Ind. 276,
26 N. E. 56; Lepps v. Lee (Ky.), 16
S. W. 346; Cox v. Handy, 78 Md.
108, 27 Atl. 227; Van Houton v. Hall,
71 N. J. Eq. 626, 64 Atl. 460; Van
Nostrand v. Marvin, 16 App. Div. 28,
44 N. Y. S. 679; Doppler v. Clon-
wetter, 20 Ohio C. C. 701, 11 Ohio
C. D. 374.

86 Boatman v. Boatman, 198 Ill. 414,
65 N. E. 81; Hebberd v. Lese, 107
App. Div. 425, 95 N. Y. S. 333.

87 Thorington v. Thorington, 111
Ala. 237, 20 So. 407, 36 L. R. A. 385.

88 Bergman v. Arnhold, 242 Ill. 218,
89 N. E. 1000.

89 Brattle Square Church v. Grant,

3 Gray (Mass.) 142, 63 Am. Dec.
725; Williams v. Jones, 166 N. Y.
522, 60 N. E. 240.

90 Summitt v. Yount, 109 Ind. 508,
9 N. E. 582; Brattle Square Church
v. Grant, 3 Gray (Mass.) 142, 63 Am.
Dec. 725; Smith v. Smith, 23 Wis.
176, 90 Am. Dee. 153.

91 Sumpter v. Carter, 115 Ga. 893,
42 S. E. 324, 60 L. R. A. 274; Gallo-
way v. Carter, 100 N. Car. 111, 5 S.
E. 4.

92 Engel v. State, 65 Md. 539, 5 Atl.
249; Miller v. Gilbert, 144 N. Y. 68,
38 N. E. 979; Stokes v. Weston, 142
N. Y. 433, 37 N. E. 515.

93 Tllinois Land &c. Co. v. Bonner,
75 Ill. 315; Lantz v. Trusler, 37 Pa.
St. 482,
CHAPTER XIV

RULE AGAINST PERPETUITIES

SECTION SECTION

265. Meaning of perpetuity in law. 271. Applications of rule to charitable
266. Common law rule. gifts.

267. Statutory modifications of the 272. Effect of directions to accumu-

late the income.
273. Disposition of property where

rule,

268. Nature and purpose of the rule.

269. Period allowed for vesting. gift void under the Rule
270. Estates or interests subject to against Perpetuities.
the rule.
§ 265. Meaning of perpetuity in law.—A perpetuity in law

has been defined to be “a limitation of property which renders it
inalienable beyond the period allowed by law. That period is a
life or lives in being and twenty-one years more, with a fraction
of a year added for the time of gestation, in cases of posthumous
birth.”* An accurate definition of perpetuity in the sense used
in the Rule against Perpetuities is the following from Mr. Lewis:
“A perpetuity is a future limitation, whether executory or by way
of remainder, and of either real or personal property, which is not
to vest until after the expiration of, or will not necessarily vest
within, the period fixed and prescribed by law for the creation of
future estates and interests; and which is not destructible by the
persons for the time being entitled to the property subject to the
future limitation, except with the concurrence of the individual
interested under that limitation.”?

It is a grant or devise of property wherein the vesting of an
estate or interest is unlawfully postponed. The law allows the

1Quld v. Washington Hospital, 95
U. S. 303, 24 L. ed. 450. See also
Duggan v. Slocum, 92 Fed. 806; Hart
v. Seymour, 147 Ill. 598, 35 N. E.
246; Pulitzer v. Livingston, 89 Maine
359, 36 Atl. 635; In re Johnston’s Es-

tate, 185 Pa. 179, 39 Atl. 879, 64 Am.
St. 621.

2 Lewis Perp. 164. See also Waldo
v. Cummings, 45 Ill. 421; Hillyard v.
Miller, 10 Pa. St. 326; Ferguson v.
Ferguson, 39 U. C. Q. B. 232.

237
§ 266 WILLS 238

vesting of an estate or interest, and also the power of alienation
to be postponed for the period of a life or lives in being and 21
years and 9 months thereafter ; and all restraints upon the vesting
that may suspend it beyond that period are treated as perpetual
restraints, and void, and estates or interests which are dependent
on them are void. Nothing is denounced as a perpetuity that does
not transgress this rule. The limitation, in order to be valid,
must be so made that the estate, or whatever is devised or be-
queathed, not only may, but must necessarily, vest within the pre-
scribed period. If by any possibility the vesting may be post-
poned beyond this period, the limitation over will be void.*

To constitute a perpetuity, within the Rule against Perpetuities,
it is essential that the estate of the person who for the time being
is entitled to the property, subject to the future limitation, should
be indestructible; and if by force of the instrument creating the
limited estate the taker thereof is empowered to become the owner
in fee or to alienate the property and to thus destroy the limited
estate and defeat the limitation, although such power may not
have been exercised, a perpetuity does not exist.° If the vesting
in possession of an estate limited over is postponed beyond the
period of a life or lives in being and 21 years and 9 months, the
limitation is void, and the period from which the rule runs is the
death of the testator.®

§ 266. Common-law rule.—Anciently, under the common
law, it was possible by executory devise to lock up estates in fami-
lies so as to prevent alienation for any period of time the owner
might desire. And such estate was termed a perpetuity, a thing
which the law is said to abhor, as estates are made by it incapable
of answering those ends of social commerce and providing for the
sudden contingencies of private life for which property was first
established.”. The abhorrence of the law for estates so tied up

3 Pulitzer v. Livingston, 89 Maine 15 Atl. 525,1L. R. A. 453, 6 Am. St.

359, 36 Atl. 635. 781,
4Fosdick v. Fosdick, 6 Allen 6 Stephens v. Evans, 30 Ind. 39;
(Mass.) 41. Sears v. Russell, 8 Gray (Mass.) 86.

5 Mifflin’s Appeal, 121 Pa. St. 205, 72 Bl Comm. 174; Tiedman Real
Prop., § 544; 2 Wash. Real Prop. 701.
239 RULE AGAINST PERPETUITIES § 267

led to the gradual establishment by judicial decisions of the Rule
against Perpetuities, which in short was, that estates could not be
so limited as not to be alienable for a longer period than the life
or lives in being and 21 years after; and for the purpose of letting
in posthumous children, 9 months, the period of gestation, was
added.*®
“The true form of the Rule against Perpetuities is believed to
be this: No interest subject to a condition precedent 1s good, un-
less the condition must be fulfilled, if at all, within twenty-one
years after some life in being at the creation of the interest.”
“This appears to be correct if we assume that ‘condition’ includes
not only all uncertain future acts and events but also certain fu-
ture events with the exception of the termination of preceding
estates. If we decline to make this assumption, and confine ‘con-
dition’ to uncertain future acts and events, then the Rule against
Perpetuities will take this shape: No interest is good unless it
must vest, if at all, not later than twenty-one years after some life
~in being at the creation of the interest.’”*®
The common-law rule permits the tying up of property for
lives in being at the death of the testator, and 21 years in addi-
tion. It does not limit the lives to those of persons in being at the
date of the will.**
The common-law rule against perpetuities prevails in all of the
states, excepting as it may have been modified by statute.**

§ 267. Statutory modifications of the rule—In a number
of jurisdictions the common-law Rule against Perpetuities has
been more or less modified by statute. Such statutes usually for-
bid a limitation for a longer period than the continuance (1) of
lives in being, (2) of two lives in being, or (3) some other pe-
riod. The statutes of California,? Idaho,‘ Montana, North

8 Perry Trusts (5th ed.), 380; Gold- 12In re Lawrence’s Estate, 136 Pa.
tree v. Thompson, 79 Cal. 613, 22 Pac. St. 354, 20 Atl. 521, 20 Am. St. 925;

50. Alfred v. Marks, 49 Conn. 473.
®°Gray Perp., § 201. 18 Cal. Civ. Code (1916), §§ 761-
10 Gray Perp. (2d ed.) 200. 781,

11 McArthur v. Scott, 113 U. S. 340, 14Tdaho Rev. Code (1908), §§ 3067,

28 L. ed. 1015, 5 Sup. Ct. 652; Hosea 3072.
v. Jacobs, 98 Mass. 65. 15 Mont. Rev. Code (1907), §$ 4463,

4464, 4492.
§ 267 WILLS 240

Dakota,** and South Dakota forbid the suspension of the abso-
lute power of alienation for a longer period than the lives of per-
sons in being at the death of the testator. The restraint against
alienation is not limited to a particular number of lives in being.
The provision of the Indiana statute is similar to the above, ex-
cept that it does not apply to charities.** In New York,*® Michi-
gan,”° Minnesota,”* and Wisconsin” the statutes provide that the
power of alienation of real estate shall not be suspended by any
condition or limitation for a longer period than during the con-
tinuance of two lives in being at the creation of the estate, and
that such suspension occurs when there are no persons in being
by whom an absolute fee in possession can be conveyed. This, it
would appear, is entirely different from the common-law rule,
since it is directed, not against remoteness of vesting, by which
the title is kept in a condition of uncertainty, but merely against
a suspension of the power of alienation. The Wisconsin statute,
however, forbids the suspension of the power of alienation of real
estate for a longer period than during the continuance of two
lives in being and 21 years thereafter.

In Ohio an estate in land can not be limited except to a person
or persons in being, or to their immediate issue or descendants.”

It is provided by the statutes of Alabama, that conveyances, ex-
cept to one’s wife and children, can not extend beyond three lives
in being.** And in Mississippi, it is provided that a devise may
be made to a succession of donees then living, not exceeding two;
and to the heirs of the body of the remainderman, and, in default
thereof, to the right heirs of the donor in fee simple.”®

By either statutory declaration or judicial sanction, the com-

16 North Dak. Comp. Laws (1913), 20 Howell’s Mich. Ann. Stats.

§§ 5313-5315. (1913), §§ 10637, 10638.
17 South Dak. Comp. Laws (1913), 21Minn. Gen. Stats. (1913), §§
§§ 224, 225, p. 24. 6665, 6666.

18 Burns’ Ann. Stats. (1914), §§ 22 Wis. Stats. (1913), §§ 2039, 2040.
3998, 3999, 9723. Richmond v. Davis, 23 P.& A. Ann. Code (1912), § 8622.
103 Ind. 449, 3 N. E. 130. 24 Ala. Code (1907), §§ 3416, 3417.

19New York Real Property Law, 25 Miss. Code (1906), § 2765.

§ 43.
241 § 268

RULE AGAINST PERPETUITIES
mon-law rule is believed to prevail in all the other states not spe-
cially mentioned in this section.

§ 268. Nature and purpose of the rule-—The Rule against
Perpetuities is not complicated or difficult of understanding, but
like most rules of universal application, it is often found difficult
of application to the facts of a particular case. If the object or
purpose of the rule is kept in mind, and the kind of interests or
estates which come under its operation, the proper application of
the rule will be very much simplified. The rule is aimed against
undue restraints or alienation. A devise to a named bishop and
his successors, without such restraint is not against the rule.** It
concerns itself only with the vesting—the commencing—of es-
tates, and not at all with their termination. It makes no differ-
ence when such a vested estate or interest limited terminates.’
“The remoteness against which the rule is directed is remoteness
in commencement, or first taking, and not in the cesser or deter-
mination of them. An estate that is to arise within the prescribed
period may be so limited as to be determined on the happening of
any event, however remote.”** Accordingly, if a life estate con-
tinues beyond the period fixed by the rule, this fact does not affect
its validity if it is to vest immediately, or must vest within that
time.?°

The purpose of the Rule against Perpetuities is to facilitate the
alienation of property, by prohibiting the clogging of the title
with future interests dependent on contingencies which may not
occur at all, or until a remote period. It was devised to prevent
the perpetual entailment of estates, and to give them over to free

26 Lamb v. Lynch, 56 Nebr. 135, 76
N. W. 428.

27 Routledge v. Dorril, 2 Ves. Jr.
366; Evans v. Walker, 3 Ch. Div. 211;
Hampton v. Holman, 5 Ch. Div. 183.

28Lewis Perp., p. 173. See also
Owsley v. Harrison, 190 Ill. 235, 60
N. E. 89; Phillips v. Harrow, 93 Iowa
92, 61 N. W. 434; Pulitzer v. Livings-

16—Tuomr. Wits.

ton, 89 Maine 359, 36 Atl. 635; In re
Johnston’s Estate, 185 Pa. St. 179, 39
Atl. 879, 64 Am. St. 621.

29 Madison v. Larmon, 170 Ill. 65,
48 N. E. 625, 62 Am. St. 356; Heald
v. Heald, 56 Md. 300; Lovering v.
Worthington, 106 Mass. 86; Donohue
v. McNichol, 61 Pa. St. 73.
§ 269 WILLS 242

conveyance.*° The absolute power of alienation is equivalent to
the power of conveying an absolute fee.**

The law against the suspension of the power of alienation ap-
plies to every kind of conveyance and devise. It applies to all
trusts, whether created by will or deed, whether providing for re-
mainders or executory devises, or merely restraining the power
of alienation for a fixed period of years, and then providing for
sale with gift over.*? In short, it “covers the entire field of es-
tates, interests, rights and possibilities.”** “A perpetuity will no
more be tolerated when it is covered by a trust than when it dis-
plays itself undisguised in the settlement of a legal estate.’’**

§ 269. Period allowed for vesting.—We have seen that, in
order not to be invalid under the Rule against Perpetuities, the
future interest must vest within a life or lives in being, and 21
years thereafter. If the person to take such interest is an infant,
either born or en ventra sa mere during a life in being, the time
may be extended until the termination of such infant’s minority,
thus extending the possible time of vesting to 21 years and the
period of gestation after a life or lives in being.** The persons
in being by whose lives the period allowed for vesting is in part
measured may be indefinite in number, provided it is possible to
ascertain the termination of the life of the last survivor, in order
to be able to ascertain when the period of twenty-one is to com-
mence. Nor need such persons be connected in any way with the
property devised,—that is, they need not be persons taking prior
estates therein,—nor need they even be relatives of the devisees.*°
In case the time named for the vesting of the future interest is not
measured by lives, but by a definite number of years, it is essen-
tial that the number of years be less than 21, in order that the lim-

30 Troutman v. De Boissiere Odd
Fellows’ &c. School, 66 Kans. 1, 71
Pac. 286.

31 Chaplin Suspension of Aliena-
tion, § 64.

32Tn re Walkerly’s Estate, 108 Cal.
627, 41 Pac. 772, 49 Am. St. 97.

33 Chaplin Suspension of Aliena-
tion, § 2.

84 Perry Trusts, § 382. See also In
re Cavarly’s Estate,-119 Cal. 406, 51
Pac. 629; Wheeler v. Fellowes, 52
Conn. 238.

35 Stephens v. Stephens, cas. temp.
Talb. 228.

36 Cadell v. Palmer, 1 Cl. & F. 372;
Thellusson v. Woodford, 11 Ves. 112.
243 RULE AGAINST PERPETUITIES § 270
itation be valid.**’ The validity of the limitation is to be deter-
mined as of the time of the testator’s death, and not at the time
of the execution of the will.®*

The requirement that the contingency on which the estate is to
vest shall occur within the time named by the rule is absolute, and
the mere improbability that it will occur after that time is imma-
terial.*° Nor is a limitation not in compliance with the rule ren-
dered valid by the happening of the contingency within the legal
period.*°

The rule is not violated by a direction in a will which may in-
volve some delay in the actual conversion of the property, arising
from any cause; nor does the fact that the trustee is vested with
a discretion to delay the sale of the real estate, not exceeding a
certain period mentioned, involve an unlawful suspension of the
power of alienation.**

§ 270. Estates or interests subject to the rule-—We stated
in a former section that the Rule against Perpetuities has no ap-
plication to vested estates or interests or such as begin within the
period limited by the rule, no matter how long they may continue ;
but there are cases holding that the particular as well as the con-
tingent devise is void where the contingency is or may be post-
poned beyond the limitation of the rule.” It is generally held that
the rule does not apply to the contingent right of entry for breach
of a condition, even though annexed to a fee.** Nor does the rule

37 Rolfe & Rumford Asylum v. Le-
febre, 69 N. H. 238, 45 Atl. 1087;
Palmer v. Holford, 4 Russ. 403.

38 McArthur v. Scott, 113 U. S. 340,
28 L. ed. 1015, 5 Sup. Ct. 652; Hall
v. Hall, 123 Mass. 120; Brown v.
Brown, 86 Tenn. 277, 6 S. W. 869, 7
S. W. 640.

39 Lawrence v. Smith, 163 Ill. 149,
45 N. E. 259; Jee v. Audley, 1 Cox
324.

40 Coggins’ Appeal, 124 Pa. St. 10,
16 Atl. 579, 10 Am. St. 565.

41 Hagen v. Sacrison, 19 N. Dak.

160, 123 N. W. 518, 26 L. R. A. (N.
S.) 724.

42Deford v. Deford, 36 Md. 168;
Barnum v. Barnum, 26 Md. 119, 90.
Am Dec. 88; Fosdick v. Fosdick, 6
Allen (Mass.) 41; Thorndike v. Lor-
ing, 15 Gray (Mass.) 391.

48 Hopkins v. Grimshaw, 165 U. S.
342, 41 L. ed. 739, 17 Sup. Ct. 401;
Cowell v. Colorado Springs Co., 100
U.S. 55, 25 L. ed. 547; In re Stick-
ney’s Will, 85 Md. 79, 36 Atl. 654,
35 L. R. A. 693, 60 Am. St. 308;
Tobey v. Moore, 130 Mass. 448.
§ 271 WILLS 244

generally apply to a possibility of reverter after a determinable
fee.** Generally the rule is applicable alike to all future interests
in real and personal property which are not vested.*°

But by statute in Wisconsin, the rule is made applicable to real
estate only.**

All future equitable interests in realty or personality are sub-
ject to the rule.*” Respecting the application of the rule to pow-
ers, Professor Gray says: “In powers, questions of remoteness
are governed by three rules. 1. If a power can be exercised at
a time beyond the limits of the Rule against Perpetuities, it is bad.
2. A power which can not be exercised beyond the limits of the
Rule against Perpetuities is not rendered bad by the fact that
within its terms an appointment could be made which would be
too remote. 3. The remoteness of an appointment depends on
its distance from the creation and not from the exercise of the
power. The first two rules relate to the creation of powers, the
third to their execution.”’**

§ 271. Application of rule to charitable gifts—A public
or charitable trust may be perpetual in its duration.*® As such
trust is established for objects of public, general, and lasting ben-
efit, it is allowed by the law to be as permanent as any human in-
stitution can be, and courts will readily infer an intention in the
donor that it should be perpetual.°° So it may be stated as a gen-
eral rule that the Rule against Perpetuities is not applicable to
charitable trusts.°*

But it must be understood that the word “perpetuity” is here
used in its primary sense, and the statement taken as merely

44 Hopkins v. Grimshaw, 165 U. S. 49 Jackson v. Phillips, 14 Allen

342, 41 L. ed. 739, 17 Sup. Ct. 401;
First Universalist Soc. v. Boland, 155
Mass. 171, 29 N. E. 524,15 L. R. A.
231. ‘

45 Lewis Perp. 169.

46 Becker v. Chester, 115 Wis. 90,
91 N. W. 87, 650.

47 Shepperd v. Fisher, 206 Mo. 208,
103 S. W. 989; Hartson v. Elden, 50
N. J. Eq. 522, 26 Atl. 561.

48 Gray Perp. (2d ed.), § 473.

(Mass.) 539,

50 Odell v. Odell, 10 Allen (Mass.)
1,

512 Kent Comm. 288, note a; Mills
v. Davison, 54 N. J. Eq. 659, 35 Atl.
1072, 55 Am. St. 594, 35 L. R. A. 113;
Ingraham v. Ingraham, 169 Ill. 432,
48 N. E. 561, 49 N. E. 320; Sherman
v. Baker, 20 R. I. 446, 40 Atl. 11, 40
L. R. A. 717,
RULE AGAINST PERPETUITIES

245 § 271
meaning that the trust is not invalid, though it is indestructible,
and though, since there are no definite cestuis que trust to alien it,
it is inalienable.°? So if the gift is such that it is recognized by
the law as charitable, it may restrain the alienation of property
beyond the period fixed by the rule, and hold the property
for such use.” Especially is this true where such gifts are made
with no intervening gift to or for the benefit of a private person
or corporation, or to a contingent limitation over from one char-
ity to another; but it does apply to a gift to a private person, al-
though limited over after an immediate gift to a charity.”

Where a devise to charity is so given as not to vest within the
period fixed by the rule it is deemed within the rule, and conse-
quently void.” The authorities generally hold that the Rule
against Perpetuities is not violated by the power given to a trus-
tee to use his discretion as to the time within which he may make
a sale of the real estate.°* A devise over to charity after a life
estate is not contrary to the Rule against Perpetuities.°” But a
gift over to an individual after a charitable trust is held subject to

52 Brooks v. Belfast, 90 Maine 318,
38 Atl. 222.

52 Russell v. Allen, 107 U. S. 163,
27 L. ed. 397, 2 Sup. Ct. 327; Spence
v. Widney (Cal.), 46 Pac. 463; Wood-
ruff v. Marsh, 63 Conn. 125, 26 Atl.
846, 38 Am. St. 346; Parker v.
Churchill, 104 Ga. 122, 30 S. E. 642;
Ingraham v. Ingraham, 169 Ill. 432,
48 N. E. 561, 49 N. E. 320; Rush
County v. Dinwiddie, 139 Ind. 128, 37
N. E. 795; Brooks v. Belfast, 90
Maine 318, 38 Atl. 222; Teele v.
Bishop of Derry, 168 Mass. 341, 47
N. E. 422, 38 L. R. A. 629, 60 Am.
St. 401; Penny v. Croul, 76 Mich.
471, 43 N. W. 649,5 L. R. A. 858;
Lane v. Eaton, 69 Minn. 141, 71 N.
W. 1031, 30 L. R. A. 669, 65 Am. St.
559; Mills v. Davison, 54 N. J. Eq.
§59, 35 Atl. 1072, 55 Am. St. 594, 35
L. R. A. 113; In re John C. Mercer
Home, 162 Pa. St. 232, 29 Atl. 731;
Webster v. Wiggin, 19 R. I. 73, 31

Atl. 824, 28 L. R. A. 510; Staines
v. Burton, 17 Utah 331, 53 Pac. 1015,
70 Am. St. 788.

54 Hopkins v. Grimshaw, 165 U. S.
342, 41 L. ed. 739, 17 Sup. Ct. 401;
Christ Church v. Trustees of Dona-
tions, &c., 67 Conn. 554, 35 Atl. 552.

55 Jocelyn v. Nott, 44 Conn. 55;
Parker v. Churchill, 104 Ga. 122, 30
S. E. 642; Crerar v. Williams, 145
Til. 625, 34 N. E. 467, 21 L. R. A.
454; Clearspring Tp. v. Blough, 173
Ind. 15, 88 N. E. 511, 89 N. E. 369;
Brooks v. Belfast, 90 Maine 318, 38
Atl. 222; State v. Holmes, 115 Mich.
456, 73 N. W. 548; In re John’s Will,
30 Ore. 494, 47 Pac. 341, 50 Pac. 226,
36 L. R. A. 242.

56 Hart v. Seymour, 147 Ill. 598,
35 N. E. 246; Hagen v. Sacrison, 19
N. Dak. 160, 123 N. W. 518, 26 L. R.
A. (N. S.) 724.

57 Mack’s Appeal, 71 Conn. 122, 41
Atl. 242.
§ 272 WILLS 246

the Rule against Perpetuities ;°° and likewise where the gift is to
an individual and then over to a corporation or person on a char-
itable trust.°° If instead of being a gift over after another be-
quest, the gift is made to a charity upon the happening of a con-
tingent event as a condition precedent, it is held that if the condi-
tion is too remote, or for any other reason illegal, the gift to
charity is void.°°

§ 272. Effect of directions to accumulate the income.—At
common law, the power of controling the rents and profits was
coextensive with the power to dispose of the estate which pro-
duced them, the limit of the accumulation of annual income was
the same as the limit of the creation of future estates, and the en-
joyment of the profits could not be suspended for a longer period
than the full power of alienating the estate itself.** Statutes gen-
erally limit the accumulation periods to 21 years after the death
of the testator, or during the period of minority where such pe-
riod exists at the death of the testator, and accumulations can not
be made for any longer period than that provided for by the
statute. The object of these statutes is to prevent a permanent
accumulation by which the property accumulated may be perma-
nently taken out of the market. A mere temporary accumulation
of a surplus arising after the support of a legatee is provided for,
is not prohibited by the statute. Where a trust for an illegal ac-
cumulation has been framed, the amount accumulated under it
goes to the person who is next eventually entitled under the will.**

In the case of gifts to charity, with a direction to accumulate
for a period beyond that allowed by law, the gift will be upheld,
if it can be regarded as a present gift, and, in place of the illegal
accumulation, the court will direct a management of the fund
which is legal and possible, cy pres the original direction.” An

58 Theological Soc. v. Attorney- 62 Cochrane v. Schell, 140 N. Y.

General, 135 Mass. 285. 516, 35 N. E. 971; In re Farnum’s
59 Leonard v. Burr, 18 N. Y. 96; Estate, 191 Pa. St. 75, 43 Atl. 203.
Smith v. Townsent, 32 Pa. St. 434. 63 In re Hibb’s Estate, 143 Pa. St.

60 Jocelyn v. Nott 44 Conn. 55. 217, 22 Atl. 882.

61 Odell v. Odell, 10 Allen (Mass.) 64 Cochrane v. Schell, 140 N. Y.
1; Thellusson v. Woodford, 4 Ves. 516, 35 N. E. 971. ~
227, 11 Ves. 112. 65 Ingraham v. Ingraham, 169 III,
247 RULE AGAINST PERPETUITIES § 273
explicit direction that the income of a sum of money shall accu-
mulate for a specified number of years, and at the end of that
period shall be given to a charity, has been held valid.°® But accu-
mulations, although for charitable uses, may be for too long a
period to be permitted by the local statute, so it is not safe to

make a direction to accumulate without consulting the statute.

§ 273. Disposition of property where gift void under the
Rule against Perpetuities—Many gifts are void as being in
contravention of the Rule against Perpetuities,°’ and where the
limitation over is void under the operation of this rule, the estate
becomes vested in the first taker, discharged of the condition or
limitation over, according to the terms in which it was granted or
devised; if for life, then it takes effect as a life estate; if in fee,
then as a fee simple absolute.*® Thus a devise in fee simple to A
with a limitation over to B, at the termination of 25 years, the
latter limitation being void under the rule, A has an indefeasible
fee simple estate.®® Also where the limitation over of the fee to
the heirs-at-law of the children of the testator’s daughter was
void under the rule, the daughter and children being successively
entitled to the income of the estate, it was held that the effect of
such invalidity was not to defeat the prior life estate to such chil-
dren.”°

But it has been held that where a remainder is void under the
rule, the preceding life estate is also void, on the theory that the

432, 48 N. E. 561, 49 N. E. 320; St.
Paul’s Church v. Attorney-General,
164 Mass. 188, 41 N. E. 231; Odell
v. Odell, 10 Allen (Mass.) 1; Phil-
adelphia v. Girard, 45 Pa. St. 9, 84
Am. Dec. 470.

66 Woodruff v. Marsh, 63 Conn. 125,
26 Atl. 846, 38 Am. St. 346; North-
ampton v. Smith, 11 Metc. (Mass.)
390; Franklin’s Admx. v. Philadel-
phia, 13 Pa. Co. Ct. 241, 2 Pa. Dist.
‘Ct. 435, 9 Pa. Co. Ct. 484.

87 Perkins v. Fisher, 59 Fed. 801;
Ketchum v. Corse, 65 Conn. 85, 31
Atl. 486; Kelly v. Nichols, 17 R. I.
306, 21 Atl. 906.

681 Jarman Wills, 200, 783; Lewis
Perp. 657; 2 Bl. Comm. 156; 4 Kent
Comm. 130; Brattle Square Church
v. Grant, 3 Gray (Mass.) 142, 156, 63
Am. Dec. 725.

69 Watkins v. Quarles, 23 Ark. 179;
Nevitt v. Woodburn, 190 Ill. 283, 60
N. E. 500; Howe v. Hodge, 152 Ill.
252, 38 N. E. 1083; Post v. Rohrbach,
142 Ill. 600, 32 N. E. 687; Brattle
Square Church v. Grant, 3 Gray
(Mass.) 142, 63 Am. Dec. 725.

70 Lovering v. Worthington,
Mass. 86,

106
§ 273 WILLS 248

entire gift should stand or fall together." Where there is a valid
general residuary clause, and the devise is void as being in contra-
vention of the Rule against Perpetuities, the residuary legatees
become entitled to distribution.” But where the residuary clause
passes only the property “not hereinbefore disposed of,” it has
been held not to pass land devised, though the devise is void as in
violation of the Rule against Perpetuities.”*

71 Lockridge v. Mace, 109 Mo. 162, 129 Mass. 97; Hall v. Hall, 123 Mass.
18 S. W. 1145. 120.

72 Thorndike v. Loring, 15 Gray 78 Kelly v. Nichols, 17 R. I. 306, 21
(Mass.) 391; Lovering v. Lovering, Atl. 906, 19 L. R. A. 413.
CHAPTER XV

CONDITIONS AND RESTRICTIONS

SECTION SECTION
280. How conditions defined and cre- 290. Conditions against contest of
ated. will.
281. Void and repugnant conditions. 291. Conditions against claims against
282. Effect on estate when condition estate,
fails. 292. Conditions against bankruptcy or
283. Conditional limitations. insolvency.
284. Survivorship as a contingency. 293. Conditions as to residence, occu-
285. Gifts over on death as sole con- pation, education or religion.
tingency. 294, Conditions as to name or other
286. Death without issue or heirs as personal characteristics of ben-
condition to gift over. eficiary.
287. Conditions putting beneficiary to 295. Conditions as to support, pay-
his election. ment of debts, etc.
288. Conditions restricting marriage. 296. Conditions against alienation in
289. Conditions favoring divorce or general.
separation. 297. Conditions restraining married

women from alienating.

§ 280. How conditions defined and created.—Conditions
are either precedent or subsequent, and they are best defined sep-
arately instead of by a general definition. The condition is
precedent when it must be fulfilled before the estate can com-
mence or be enlarged ;* while a condition subsequent is one which
does not prevent the vesting of the estate, but which may defeat
an estate already vested if the condition be not performed.’

The same technical words of condition are appropriate to cre-
ate either a condition precedent or a condition subsequent.®

1Yale College v. Runkle, 8 Fed. 57 S. W. 110; Smith v. Smith, 64
576, 10 Biss. (U. S.) 300; Oetjen v. Nebr. 563, 90 N. W. 560; Tilley v.
Diemmer, 115 Ga. 1005, 42 S. E. 388; King, 109 N. Car. 461, 13 N. E. 936;
Fisher v. Fisher, 80 Nebr. 145, 113 McKinnon v. Lundy, 21 Ont. App.
N. W. 1004; Moore v. Perry, 42 S. 560.

Car. 369, 20 S. E. 200. 3 Hopkins v. Smith, 162 Mass. 444,

2Tappan’s Appeal, 52 Conn. 412; 38 N. E. 1122.

Alexander vy. Alexander, 156 Mo. 413,

249
§ 280 WILLS 250
“Divers words there be, which by virtue of themselves make
estates upon condition.”* A condition is created by the use of
such appropriate words as “on condition,” “provided,” “so as,”
“so that,” “if it happen,” or the like, which import, ex vi termini,
that the vesting or continuance of the estate is to depend upon
the observance of the provision named.’ “To every good.con-
dition is required an external form.’”°

But apt words, even, do not always create a condition, when
the intent of the testator, as shown by the whole will, is other-
wise.’ Whether the condition be precedent or subsequent is a
question of intention to be gathered from the whole will.® If
the thing to be done does not necessarily precede the vesting of
the estate in the devisee or legatee, but may accompany or fol-
low it, and may as well be done after as before the vesting of
the estate, the condition is subsequent.®

The tendency of the courts is to construe a condition as sub-
sequent, rather than as precedent, so as to give the devisee a
present estate liable to be divested, rather than to defer the vest-
ing.*° Thus a devise to one on condition that he marry a certain
person was held to be on condition subsequent.*t The rule is
that, if the act or event named must necessarily precede the vest-
ing of the estate, it is a condition precedent, while, if the act or
event may accompany or follow the vesting of the estate, it is

a condition subsequent.”

4Littleton 328.
203a.

5 Wheeler v. Walker, 2 Conn. 196,
7 Am. Dec. 264; Hopkins v. Smith,
162 Mass. 444, 38 N. E. 1122.

6 Shep. Touch. 126.

7 Episcopal City Mission v. Apple-
ton, 117 Mass. 326; Sohier v. Trinity
Church, 109 Mass. 1.

82 Jarman Wills 842; Burdis v.
Burdis, 96 Va. 81, 30 S. E. 462, 70
Am. St. 825.

® Hawkins v. Hansen, 92 Kans. 73,
136 Pac. 1022, L. R. A. 1915 A, 90.

See also Co. Lit.

Besides, the fact that the condition

104 Kent Comm. 129; Ege v. Her-
ing, 108 Md. 391, 70 Atl. 221.

11 Finlay v. King, 3 Pet. (U. S.)
346, 7 L. ed. 701.

12 Finlay v. King, 3 Pet. (U. S.)
346, 7 L. ed. 701; Jenkins v. Merritt,
17 Fla. 304; Winn v. Tabernacle Inf.,
135 Ga. 380, 69 S. E. 557, 32 L. R. A.
(N. S.) 512; In re Stickney’s Will,
85 Maine 79, 36 Atl. 654, 60 Am. St.
308, 35 L. R. A. 693; Bell County
v. Alexander, 22 Tex. 350, 73 Am.
Dec. 268; Burdis v. Burdis, 96 Va.
81, 30 S. E. 462, 70 Am. St. 825.
251 CONDITIONS AND RESTRICTIONS § 281
involves something in the nature of a consideration for the gift

tends to show that the condition is precedent.*®

§ 281. Void and repugnant conditions.—A testator may
subject his gifts to such lawful conditions and limitations as he
chooses to impose ;** but conditions in conflict with public pol-
icy, or inhibiting the performance of acts which the public has
an interest in having performed, are void, and can not be im-
posed on his beneficiaries.**

If a condition precedent be void or if it be or become impos-
sible of performance, even though there be no fault on the part
of the devisee, the devise can not take effect.*° If, on the other
hand, the condition be subsequent, the estate becomes absolute
in the devisee.*”

Conditions which are impossible of performance are void; and
when a condition precedent becomes impossible to be performed,
even though there be no default or laches on the part of the

devisee himself, the devise fails.**
The rule as to a legacy subject to a condition precedent is
that, where the performance of the condition is made impos-

13 Theobald Wills (Sth ed.) 492;
Tilley v. King, 109 N. Car. 461, 13
N. E. 936.

14Jones v. Habersham, 107 U. S.
174, 27 L. ed. 401, 2 Sup. Ct. 236;
Howze v. Davis, 76 Ala. 381; Stevens
v. De La Vaulx, 166 Mo. 20, 65 S.
W. 1003; Scott v. Kramer, 31 Ohio
St. 295; In re Shirk’s Estate, 242 Pa.
95, 88 Atl. 873.

18 New Orleans v. Baltimore, 13 La.
Ann. 162; Osborne v. Taylor, 12 Grat.
(Va.) 117.

16 Halsey v. Goddard, 86 Fed. 25;
Carter v. Carter, 39 Ala. 579; Rob-
bins v. Hoover, 50 Colo. 610, 115 Pac.
526.

17 Huckabee v. Swoope, 20 Ala.
491; New Haven County v. New Ha-
ven Trinity Church, 82 Conn. 378, 73
Atl. 789, 17 Ann. Cas. 432; Harrison
v. Harrison, 105 Ga. 517, 31 S. E.

455, 70 Am. St. 60; Jones v. Doe, 2
Ill, 276; Hoss v. Hoss, 140 Ind. 551,
39 N. E. 255; Morse v. Hayden, 82
Maine 227, 19 Atl. 443; Ellicott v.
Ellicott, 90 Md. 321, 45 Atl. 183, 48
L. R. A. 58; Parker v. Parker, 123
Mass. 584; Conrad v. Long, 33 Mich.
78; Cheairs v. Smith, 37 Miss. 646;
Jones v. Jones, 223 Mo. 424, 123 S.
W. 29, 25 L. R. A. (N. S.) 424;
George v. George, 47 N. H. 27; Trum-
bull v. Gibbons, 22 N. J. L. 117; In
re Vandevort, 62 Hun 612, 17 N. Y.
S. 316, 43 N. Y. St. 695; Harris v.
Wright, 118 N. Car. 422, 24 S. E.
751; Philadelphia v. Girard, 45 Pa.
St. 9, 84 Am. Dec. 470; Burdis v.
Burdis, 96 Va. 81, 30 S. E. 462, 70
Am. St. 825; Burnham v. Burnham,
79 Wis. 557, 48 N. W. 661.
182 Jarman Wills 12.
§ 282 WILLS 252

sible by the act or default of the testator, the bequest is abso-
lute.*® But ‘where the performance of the condition is the sole
motive of the bequest, or its impossibility was unknown to the
testator, or the condition which was possible in its creation has
since become impossible by the act of God, or where it is illegal
as involving malum in se, in these cases the civil agrees with the
common law in holding the gift and conditions void.’?°

Conditions which are repugnant to the estate limited are void
also. Thus a testator can not create a fee with absolute power
of disposal, and at the same time clog that power of alienation
by limitations over to another; in other words he can not in-
clude provisions which are absolutely inconsistent in terms and
meaning, and have all given force and effect.”

§ 282. Effect on estate when condition fails—When a
condition precedent becomes impossible to be performed, the es-
tate which depended upon it can never take effect;*? and this
is true even where the condition was beyond the control of the
devisee, and he was entirely free from blame.” But it is held
that a legacy bequeathed subject to a condition precedent is
absolute where the performance of the condition is made impos-
sible by the act of the testator.”*

Where, however, a condition subsequent becomes impossible
of performance, the general rule is that the estate granted upon
it vests absolutely in the beneficiary as though no condition had
ever attached.” Likewise if a condition subsequent be possible

19 Frost v. Blackwell, 82 N. J. Eq.
184, 88 Atl. 176.

202 Jarman Wills *853. See also
Stark v. Conde, 100 Wis. 633, 76 N.
W. 600.

21 Law v. Douglas, 107 Iowa 606, 78
N. W. 212; Ingersoll’s Appeal, 86 Pa.
St. 245.

22 Ransdell v. Boston, 172 IIl. 439,
50 N. E. 111, 43 L. R. A. 526; Conant
v. Stone, 176 Mich. 654, 143 N. W.
39; Johnson v. Warren, 74 Mich. 491,
42 N. W. 74; West v. Moore, 37 Miss.
114; Wilson v. Hall, 6 Ohio C. C.
570, 3 Ohio C. D, 589; Perry v.

Brown, 34 R. I. 203, 83 Atl. 8; Stark
v. Conde, 100 Wis. 633, 76 N. W. 600. °

23 Stark v. Conde, 100 Wis. 633, 76
N. W. 600.

24Frost v. Blackwell, 82 N. J. Eq.
184, 88 Atl. 176.

25 Derickson v. Garden, 5 Del. Ch.
323; Harrison v. Harrison, 105 Ga.
517, 31 S. E. 455, 70 Am. St. 60;
Hawkins v. Hansen, 92 Kans. 73, 139
Pac. 1022, L. R. A. 1915 A, 90; Morse
v. Hayden, 82 Maine 227, 19 Atl.
443; Parker v. Parker, 123 Mass.
584; Conrad v. Long, 33 Mich. 78;
In re Anonymous, 80 Misc. 10, 141-
253 CONDITIONS AND RESTRICTIONS § 283
at the time of making it and afterward impossible of perform-
ance, either by act of God, or of the law, or of the testator, or
if it is impossible at the time of making it, or illegal, the estate
of the devisee, being once vested, is not divested, but becomes
absolute.*® In such case the income and use of the property de-
vised will follow the fee and vest in the devisee.2” But it has
been held that the legal incapacity of a legatee to perform a
condition on which the gift is made will prevent it from taking
effect, although the time for performance was subsequent
thereto.”

§ 283. Conditional limitations.—If a condition subsequent
be followed by a limitation over in case the condition is not
complied with, it is termed a conditional limitation, and takes
effect without any entry or claim, and no act is necessary to vest
the estate in the person to whom it is limited.” A condition
determines a precedent estate after breach upon entry by the
person next entitled, while a limitation determines the estate
without entry, and, if a condition subsequent is followed by a
limitation over upon breach, it is a conditional limitation, and
no entry is necessary.*° Upon the happening of the prescribed
contingency, the estate first limited comes at once to an end, and
the subsequent estace arises.** This form of gift is of a mixed
nature, and partakes of a condition and a limitation; of a con-
dition, because it defeats the estate previously limited; and of a

N. Y. S. 700; McKinley v. Martin,
226 Pa. 550, 75 Atl. 734, 134 Am. St.
1076; Manierre v. Welling, 32 R. I.
104, 78 Atl. 507, Ann. Cas, 1912 C,
1311; Dukes v. Faulk, 37 S. Car. 255,
16 S. E. 122, 34 Am. St. 745; Burn-
ham v. Burnham, 79 Wis. 557, 48 N.
W. 661; McKinnon v. Lundy, 21 Ont.
App. 560.

26 Jones v. Jones, 223 Mo. 424, 123
S. W. 29, 25 L. R. A. (N. S.) 424;
4 Kent Comm. 130.

27In re Budd’s Estate, 166 Cal. 286,
135 Pac. 1131.

28 Bullard vy. Shirley, 153 Mass. 559,

27 N. E. 766, 12 L. R. A. 110. But
see Carder v. Lafayette County, 16
Ohio St. 353.

29 Stearns v. Godfrey, 16 Maine
158; Attorney-General v. Merrimack
Mfg. Co, 14 Gray (Mass.) 586;
Brattle Square Church v. Grant, 3
Gray (Mass.) 142, 63 Am. Dec. 725;
Williams v. Jones, 166 N. Y. 522, 60
N. E. 240; Miller v. Levi, 44 N. Y.
489.

30 Bean v. Atkins, — Vt. —, 89
Atl. 643.

31 Brattle Square Church v. Grant,
69 Mass. 142, 63 Am. Dec. 725.
§ 283 WILLS 254°

limitation, because, upon the happening of the contingency the es-
tate passes to the person having the next expectant interest,
without entry or claim.** A conditional limitation—an exam-
ple of which is a grant to one so long as he occupies the premises,
or to a widow during widowhood—differs from a condition sub-
sequent, which is a contingency named on the happening of which
a grant may be defeated, only in form, and the fact that re-entry
is not necessary to terminate the grant.

No precise language is necessary to create a conditional lim-
itation, but apt words for that purpose should always be used.
Those most commonly used are ‘“while,’”’ “so long as,” “until,”
“provided that,” “so that,” “as long as,” “wheresoever,” “as
far as,” “up to,” and “so long.” But the form or connection
of words used is immaterial, as the particular character of the
provision may be determined from the intention of the testator
manifest from the whole will.3* “Words of limitation mark
the period which is to determine the estate, but words of con-
dition render the estate liable to be defeated in.the intermediate
time, if the event expressed in the condition arises before the
determination of the estate, or completion of the period de-
scribed by the limitation. The one specifies the utmost time of
continuance, and the other marks some event which, if it takes
place in the course of that time, will defeat the estate.’’**

Where an estate in fee is created on condition, the entire in-
terest does not pass out of the testator. All that remains after
the gift takes effect continues in the testator, and goes to his
heirs; while in the case of a conditional limitation, the whole
interest of the testator passes at once, and creates an estate to
arise and vest in a third person upon a contingency, at a future
and uncertain time.*® Where there is a void limitation over,

,

32 Brattle Square Church v. Grant, N. H. 445; Schaeffer v. Messersmith,
69 Mass. 142, 63 Am. Dec. 725; 10 Pa. Co. Ct. 366.
Fowlkes v. Wagoner (Tenn.), 46 S. 854 Kent Comm. 126.
W. 586; Lockridge v. McCommon, 90 36 Summit v. Yount, 109 Ind. 506,
Tex. 234, 38 S. W. 33; Smith v. 9 N. E. 582; Brattle Square Church
Smith, 23 Wis. 176, 99 Am. Dec. 153. v. Grant, 69 Mass. 142, 63 Am. Dec
83 Hague v. Ahrens, 53 Fed. 58. 725.
84 Chapin v. School Dist. No. 2, 35
255 CONDITIONS AND RESTRICTIONS § 284
the general rule is that the preceding estate is unaffected, and
the estate is vested in the first taker according to the terms in
which it is devised.*”

Examples of conditional limitations will be found in another

part of this work.*®

§ 284. Survivorship as a contingency.—As words of sur-
vivorship will be referred to the event clearly intended to ac-
complish the testator’s purpose, whether that event be before,
at the time of, or subsequent to the testator’s death,®® it is im-
portant that the point of time as it exists in the mind of the
testator be clearly stated or necessarily inferable from the lan-
guage employed. In the absence of anything in the will showing
a contrary intention, words of survivorship will be held prima
facie to refer to the time of the testator’s death, because that
is the time at which the property to be divided usually comes
into enjoyment ;*® hut if the time of payment or distribution
of the bounty, or the time of the vesting of an estate be post-
poned in the will to a time later than the death of the testator,

the words of survivorship will relate to such later period.**
A will giving to one a life estate with remainder over to tes-
tator’s “surviving children,” will be construed as meaning the

37 First Universalist Soc. v. Boland,
155 ‘Mass. 171, 29 N. E. 524, 15 L.
R. A. 231,

38 See post, ch. 30, §§ 890-909,

89 Clore v. Smith, 45 Ind. App. 340,
90 N. E. 917; Dent v. Pickens, 61 W.
Va. 488, 58 S. E. 1029,

40 Hoadly v. Wood, 71 Conn. 452,
42 Atl. 263; Phinizy v. Wallace, 136
Ga. 520, 71 S. E. 896; Davis v. San-
ders, 123 Ga. 177, 51 S. E. 298; Pir-
rung v. Pirrung, 228 Ill. 441, 81 N.
E. 1065; Taylor v. Stephens, 165 Ind.
200, 74 N. E. 980; Carpenter v. Ha-
zelrigg, 103 Ky. 538, 45 S. W. 666,
20 Ky. L. 231; Goodwin v. McDon-
ald, 153 Mass. 481, 27 N. E. 5;
Eberts v. Eberts, 42 Mich. 404, 4 N.
W. 172; Sullivan v. Garesche, 229

Mo. 496, 129 S. W. 949, 49 L. R. A.
(N. S.) 605n; Brewster v. Mack, 69
N. H. 52, 44 Atl. 811; Robinson v.
Martin, 138 App. Div. 310, 123 N. Y.
S. 146; Mayhew v. Davidson, 62 N.
Car. 47; Renner v. Williams, 71 Ohio
St. 340, 73 N. E. 221; Black v.
Woods, 213 Pa. St. 583, 63 Atl. 129;
Bradley v. Richardson, 62 S. Car. 494,
40 S. E. 954; Allison v. Allison, 101
Va. 537, 44 S. E. 904, 63 L. R. A.
920.

41In re Winter’s Estate, 114 Cal.
186, 45 Pac. 1063; Hawke v. Lodge,
9 Del. Ch. 146, 77 Atl. 1090; Kilgore
v. Kilgore, 127 Ind. 276, 26 N. E.
56; Renner v. Williams, 71 Ohio St.
340, 73 N. E. 221, 10 Prob. Rep. Ann.
464.
§ 285 WILLS 256

children surviving at the death of the life tenant.*? ‘While the
general rule is that words of survivorship must be referred to
the death of the testator whether the gift is immediate, or the
limitation is after a prior estate, or particular interest carved out,
yet that general intent may be controlled by particular expres-
sions in the will indicating a contrary intention.** In all cases
of limitation to survivors, it should be clearly and explicitly
stated to what period survivorship is to be referred; that is,
whether the property is to go to the persons who are survivors
at the death of the testator, or at the period of distribution.
Examples of this form of gift will be found in another part of
this work.**

§ 285. Gifts over on death as sole contingency.—Where .
the testator desires to provide for a gift over in case of the
death of a primary beneficiary, it becomes necessary to ascertain
whether he means such beneficiary’s death during his own life
or subsequently thereto; and if during his own life, whether he
means death before or after the execution of the will. As a
general rule where the gift over is made contingent upon the
death of such beneficiary, it can not take effect unless the death
referred to occurs after the date of the will.*® When an abso-
lute gift is made to one with a provision over in “case he die,”
or “if he should happen to die,” or “if he die,” or other like form
of words, the courts will assume that the testator had in mind
something else than merely to provide for the case of the legatee
dying at some time. In such case the courts will construe the
bequest over as intended to take effect in case the death referred
to should occur in the testator’s lifetime or before some period
fixed for the enjoyment of the estate or gift which is in such
event to go over.*® So when a devise or bequest over to a third

42 Armstrong v. Armstrong, 54 44 See post, ch. 30, §§ 844-862.
Minn. 248, 55 N. W. 971; Roundtree 45 Hoadly v. Wood, 71 Conn. 452,
v. Roundtree, 26 S. Car. 450, 2 S. E. 42 Atl. 263; Grant v. Mosely (Tenn.
474. Ch. App.), 52 S. W. 508.

43 Smith v. Joyner, 136 Ga. 755, 72 46 McClellan v. MacKenzie, 126
S. E. 40; Dickerson y. Dickerson, 211 Fed. 701. See also Walsh v. Mc-
Mo. 483, 110 S. W. 700; Johnson v. Cutcheon, 71 Conn. 283, 41 Atl. 813;
Morton, 10 Pa. St. 245, Carpenter v. Sangamon L. & T. Co.,
257 CONDITIONS AND RESTRICTIONS § 286
person is made dependent upon the death of the first taker as
a contingency, the death referred to is generally held to be a
death in the lifetime of the testator. Though when the devise
is of a remainder the question is enlarged by the inquiry as to
whether a death during the lifetime of the testator is referred
to or a death before the remainder falls in.*”

The general rule is that, where the gift over is to take effect
after a prior estate or at a time appointed, the death referred
to means at any time before the vesting in possession, whether
before or after the death of the testator.** In all these cases
the testator intended not to give a life interest with a remainder
at or from the death of the legatee, but to provide a gift by sub-
stitution in case of the death of the legatee before he received
it and to avoid a lapse. Hence it is important that great care
should be exercised to provide against an intestacy as to the
share disposed of in case the beneficiary should not live to en-
joy it in person and to avoid lapse. Examples of gifts over
after a prior estate may be found elsewhere in this work.”

§ 286. Death without issue or heirs as condition to gift
over.—Where property is devised to a named devisee with
the condition that if such devisee shall die “without issue” or
“without heirs” the property shall go to another designated per-
son and there is nothing in the will to indicate a different inten-
tion, the weight of authority is that the death referred to means
death in the lifetime of the testator, and if the named devisee
dies before the testator the estate goes to such other person,
while, if he survives the testator, he takes the devise absolutely

229 Ill. 486, 82 N. E. 418; Williams
y. Allison, 33 Iowa 278; May’s Suc-
cession, 109 La. 994, 34 So. 52.

47 Ferguson v. Thomason, 87 Ky.
519, 9 S. W. 714, 10 Ky. L. 562;
Stokes v. Weston, 142 N. Y. 433, 37
N. E. 515; Meacham v. Graham, 98
Tenn. 190, 39 S. W. 12. ,

48 Hollister v. Butterworth, 71
Conn. 57, 40 Atl. 1044; Woolverton
v. Johnson, 69 Kans. 708, 77 Pac.

17—Tuomp. WILtts.

559; Powell’s Exr. v. Cosby, 89 S.
W. 721, 28 Ky. L. 619; Hammett v.
Hammett, 43 Md. 307; Ro Bards v.
Brown, 167 Mo. 447, 67 S. W. 245;
Paul v. Philbrick, 73 N. H. 237, 60
Atl. 282; McLean v. McLean, 207 N.
Y. 365, 101 N. E. 178; In re Cox’s
Estate, 5 Pa. Dist. 206; Nichols v.
Guthrie, 109 Tenn. 535, 73 S. W. 107.
49 See post, ch. 30, § 785.
§ 286 WILLS 258
free of any condition.*° Under such construction the words used
are not strictly conditions, but directions for substitution in or-
der to prevent lapse. The death without issue of such beneficiary
after the death of the testator does not prevent the estate from
going to his heirs or beneficiaries.**

The above rule is based on the principle that the law favors
such construction as will create an absolute rather than a con-
ditional estate. The use of such words of condition in connec-
tion with a limitation over creates a doubt respecting the testator’s
intention, and this doubt is accordingly settled by construing the
will as creating an absolute estate, with a substitution of the
beneficiary in case the primary beneficiary dies before the tes-
tator.°* Many cases, however, do not restrict the words to death
before the testator, but hold them to mean death at any time,
either before or after the death of the testator.** But the testator
may fix some other point of time as that upon which such death,

50 Covington First Nat. Bank v. De
Pauw, 86 Fed. 722; Smith v. Smith,
157 Ala. 79, 47 So. 220, 25 L. R. A.
(N. S.) 1045; Hull v. Holmes, 78
Conn. 362, 62 Atl. 705; Rickards v.
Gray, 6 Houst. (Del.) 232; Kohtz v.
Eldred, 208 Ill. 60, 69 N. E. 900;
Morgan v. Robbins, 152 Ind. 362, 53
N. E. 283; Blain v. Dean, 160 Iowa
708, 142 N. W. 418; Cooksey v. Hill,
106 Ky. 297, 50 S. W. 235, 20 Ky.
L. 1873; Lafoy v. Campbell, 42 N.
J. Eq. 34, 6 Atl. 300; In re Disney,
190 N. Y. 128, 82 N. E. 1093; Murchi-
son v. Whitted, 87 N. Car. 465; Baker
v. McGrew, 41 Ohio St. 113; Neubert
v. Colwell, 219 Pa. 248, 68 Atl. 673;
In re Johnson, 23 R. I. 111, 49 Atl.
695; Beresford v. Elliott, 1 Desaus.
(S. Car.) 183; Meacham v. Graham,
98 Tenn. 190, 39 S. W. 12; App v.
App, 106 Va. 253, 55 S. E. 672; Hohn-
bach v. Hohnbach, 151 Wis. 487, 139
N. W. 731.

51 Patterson v. Earhart, 6 Ohio S.
& C. P. Dec. 16, 29 Wkly. Law Bul.

313; In re Engel’s Estate, 180 Pa.
St. 215, 36 Atl. 727; Meacham v. Gra-
ham, 98 Tenn. 190, 39 S. W. 12.

_ ®2 First Nat. Bank v. DePauw, 86
Fed. 722; Austin v. Bristol, 40 Conn.
120, 16 Am. Rep. 23; Jones v. Webb,
5 Del. Ch. 132; Fowler v. Duhme,
143 Ind. 248, 42 N. E. 623; Cornwall
v. Falls City Bank, 92 Ky. 381, 18
S. W. 452, 13 Ky. L. 606; Cox v.
Handy, 78 Md. 108, 27 Atl. 227;
Brown v. Lippincott, 49 N. J. Eq.
44, 23. Atl. 497; Stokes v. Weston,
142 N. Y. 433, 37 N. E. 515; King
v. Frick, 135 Pa. St. 575, 19 Atl. 951,
20 Am. St. 889; Harris v. Dyer, 18
R. I. 540, 28 Atl. 971; In re Lovass’
Estate, 92 Wis. 616, 67 N. W. 605.

53 Summers v. Smith, 127 Ill. 645,
21 N. E. 191; Dorr v. Johnson, 170
Mass. 540, 49 N. E. 919; Naylor v.
Godman, 109 Mo. 543, 19 S. W.. 56;
Durfee v. MacNeil, 58 Ohio St. 238,
50 N. E. 721; Selman v. Robertson,
46 S. Car. 262, 24 S. E. 187.
259 CONDITIONS AND RESTRICTIONS § 287
or death without issue, is to occur in order to entitle the sub-
stitutionary beneficiary to take the estate.“* Thus he may fix
the marriage,*® or the arrival of the beneficiary at a certain age,”°
as the time before which the death is to occur; or he may in-
dicate his intention to fix the point of time as subsequent to his
death by creating a life estate in one, and subsequent to that a
remainder to another, provided that on the death of such other

“without issue” the estate shall go to a third beneficiary.*”

§ 287. Conditions. putting beneficiary to his election.—
The testator may make such provision in his will as will compel
the beneficiary to choose between a gift under the will and rights
or property independent of the will.°* As applied to the law
of wills the doctrine of election simply means that he who takes
under a will must conform to all its provisions and renounce any
right inconsistent with them; he will not be allowed to claim botn
under and against the will.°? While a testator has no power to
make testamentary disposition of the property of another, still
if he undertakes to do so, and in the same instrument makes a
devise or bequest of his own property to such other, the latter
will be put to his election to take under the will, or renounce the
will and stand on his rights under the law.°° Also if a testator
should devise an estate belonging to his son or heir at law, to
a third person, and should, in the same will, bequeath to such

54 Hollister v. Butterworth, 71 McCracken v. McBee, 96 Ark. 251,

Conn. 57, 40 Atl. 1044; Kinney v.
Kepiinger, 172 Ill. 449, 50 N. E. 131;
Naylor v. Godman, 109 Mo. 543, 19
S. W. 56; Kornegay v. Morris, 122
N. Car. 199, 29 S. E. 875.

55 Forman v. Woods, 50 S. W. 61,
20 Ky. L. 1700.

56 In re Rogers’ Estate, 94 Cal. 526,
29 Pac. 962; Iimas v. Neidt, 101 Iowa
348, 70 N. W. 203.

57 Hollister v. Butterworth, 71
Conn. 57, 40 Atl. 1044; Naylor v.
Godman, 109 Mo. 543, 19 S. W. 56.

58 Charch v. Charch, 57 Ohio St.
561, 49 N. E. 408.

59 Howze v. Davis, 76 Ala. 381;

131 S. W. 450; Hill v. Den, 54 Cal. 6;
Walker v. Upson, 74 Conn. 128, 49
Atl. 904; Lamar v. McLaren, 107 Ga.
501, 34S. E. 116; Sparks v. Dorrell,
151 Mo. App. 173, 131 S. W. 761;
Weller v. Noffsinger, 57 Nebr. 455,
77 N. W. 1075; Paschal v. Acklin, 27
Tex. 173.

60 Fitzhugh v. Hubbard, 41 Ark. 64;
Morrison v. Bowman, 29 Cal. 337;
Farmington Sav. Bank v. Curran, 72
Conn. 342, 44 Atl. 473; O’Reilly v.
Nicholson, 45 Mo. 160; Murphy v.
Sisters, 43 Tex. Civ. App. 638, 97 S.
W. 135.
§ 288 260

WILLS
son or heir at law, a legacy in money, an implied or constructive
election is raised. The son or heir must relinquish his own es-
tate or the bequest under the will.**

But in order to create the necessity for an election there must
appear a clear, unmistakable intention on the part of the testator
to dispose of property not his own; “for if the testator’s ex-
pressions will admit of being restricted to property belonging
to or disposable by him, the inference will be that he did not
mean them to apply to that over which he had no disposing
power.” “It seems clear, to constitute a case of election, there
must be an actual! disposition of the property belonging to the
person who is to be put to his election.”**

The testator must be presumed not to have intended to devise
or bequeath any property over which he had no power of testa-
mentary disposition,®* but a beneficiary is put to his election even
though the testator was in error respecting the ownership of
the property devised or bequeathed.** In order to create a con-
dition requiring an election it must clearly appear that the tes-
tator undertook to dispose of some property belonging to the
person called upon to elect.*

§ 288. Conditions restricting marriage.—As a general rule
a condition in a gift restraining the marriage of a person who
has never married is void, as against public policy, and the person
to whom the gift is made takes an absolute gift free of the con-
tion ;* and a subsequent marriage in violation of such condition

61 Wilbanks v. Wilbanks, 18 Ill. 17.
See also Whiting’s Appeal, 67 Conn.
379, 35 Atl. 268; Gorham v. Dodge,
122 Ill, 528, 14 N. E. 44; Brown v.
Brown, 42 Minn. 270, 44 N. W. 250.

62 McDonald v. Shaw, 92 Ark. 15,
121 S. W. 935, 28 L. R. A. (N. S.)
657; Young v. McKinnie, 5 Fla. 542;
Couts v. Holland, 48 Tex. Civ. App.
476, 107 S. W. 913. :

63 Jarman Wills (6th ed. Big.)
#225,

64 Gilman v. Gilman, 54 Maine 453
(quoting 2 Redf. Wills 744); In re

Gilmore’s Estate, 81 Cal. 240, 22 Pac.
655; Owen v. Tankersley, 12 Tex.
405.

65Tn re Gilmore’s Estate, 81 Cal.
240, 22 Pac. 655; Owen v. Tankers-
ley, 12 Tex. 405.

66 McDonald v. Shaw, 92 Ark. 15,
121 S. W. 935, 28 L. R. A. (N. S.)
657.

“67 Fitzhugh v. Hubbard, 41 Ark. 64;
Havens v. Sackett, 15 N. Y. 365;
Miller v. Springer, 70 Pa. St. 269.

68 Kennedy v. Alexander, 21 App.
D. C. 424; Vaughn v. Lovejoy, 34
261 CONDITIONS AND RESTRICTIONS § 288
does not defeat the donee’s title to the gift.°° This rule is ap-
plicable generally where the condition is a subsequent one; but
where the condition is precedent, with a limitation over on breach
of the condition, it is valid.”

But a gift to the wife or husband of the testator or testatrix
while the beneficiary shall continue unmarried or until he or
she remarries is valid, without any limitation over, and the con-
‘dition must be complied with. In such case the restriction is
not treated as a condition subsequent divesting the beneficiary’s
estate upon breach of the condition, but as a conditional limita-
tion or a qualification determining the duration of the donee’s
estate, so that the contingency upon which the gift depends, al-
though there is no gift over, is good as a conditional limitation.”*

Conditions against marrying specified persons or persons of
a specified class, have been upheld.” Likewise a gift with a con-
dition that the beneficiary shall not marry until he or she arrives
at the age of twenty-one years is lawful, and a violation of it
with notice works a forfeiture of the estate devised or legacy
bequeathed. Also a condition precedent requiring consent to
marriage generally without limitation of age is good if there is
a gift over; and some cases hold that if'there is no gift over,

Ala. 437; In re Alexander’s Estate,
149 Cal. 146, 85 Pac. 308; Knost v.
Knost, 229 Mo. 170, 129 S. W. 665,
49 L. R. A. (N. S.) 627; Hawke v.
Euyart, 30 Nebr. 149, 46 N. W. 422,
27 Am. St. 391.

69 Williams v. Cowden, 13 Mo. 211,
53 Am. Dec. 143; Perrin v. Lyon, 9
East 170.

70 Collier v. Slaughter, 20 Ala. 263.

71 Giles v. Little, 104 U. S. 291, 26
L. ed. 745; Helm v. Leggett, 66 Ark.
23, 48 S. W. 675; Bennett v. Packer,
70 Conn. 357, 39 Atl. 739, 66 Am. St.
112; Rose v. Hale, 185 Ill 378, 56
S. E. 1073, 76 Am..St. 40; Opel v.
Shoup, 100 Iowa 407, 69 N. W. 560,
37 L. R. A. 583; Benton v. Benton,
78 Kans. 373, 104 Pac. 856; Nash v.
Simpson, 78 Maine 142, 3 Atl. 53;

Boyd v. Sachs, 78 Md. 491, 28 Atl.
391; Knight v. Mahoney, 152 Mass.
523, 25 N. E. 971, 9 L. R. A. 573;
Boyer v. Allen, 76 Mo. 498; Redding
v. Rice, 171 Pa. St. 301, 33 Atl. 330;
Wooten v. House (Tenn.), 36 S. W.
932; Haring v. Shelton, 103 Tex. 10,
122 S. W. 13; In re Poppleton’s Es-
tate, 34 Utah 285, 97 Pac. 138, 131
Am. St. 842.

72 Graydon v. Graydon, 23 N. J. Eq.
229; Phillips v. Ferguson, 85 Va. 512,
8 S. E. 241, 17 Am. St. 78, 1 L. R.
A. 837,

78 Shackelford v. Hall, 19 Ill. 212;
Reuff v. Coleman, 30 W. Va. 171, 3
S. E. 597; Collier v. Slaughter, 20
Ala. 263; Gough v. Manning, 26 Md.
347.
§ 289 WILLS 262

the condition must be considered in terrorem merely, and void.”
However, a condition precedent in partial restraint of marriage,
as not to marry under a certain age, or requiring consent to
marriage if under a certain age, is valid though there is no gift
over.” If the testator makes provision for a beneficiary as long
as she remains single, but upon her marriage the gift is to go
over, such limitation has been held valid, and not in restraint
of marriage.”* Such a devise or bequest is merely a limitation
as to the time of enjoyment, and therefore valid.7 Examples
of valid conditions respecting marriage may be found elsewhere
in this work.’*

§ 289. Conditions favoring divorce or separation.—A con-
dition attached to a devise in a will which constitutes an induce-
ment to married persons to become divorced, or to live separate
and apart from one another, is opposed to public policy and
void, and the devise is operative to the same extent as though
such condition had not been written in the will.”? Likewise a
bequest of a part of the income of an estate, conditioned to be
increased to the whole in the event of the beneficiary becoming
divorced, is void as tending to encourage divorce, and the en-
tire income goes to the beneficiary.*°

On the other hand, if the testator makes a provision which
is not intended to accomplish a separation or divorce between
married persons, but is intended to take effect in case of a legal
separation or divorce, the provision is valid.8* | Thus a provision

74 Shackelford v. Hall, 19 Ilf. 212;
Gough v. Manning, 26 Md. 347.

75 Phillips v. Ferguson, 85 Va. 512,
8S. E. 241, 1 L. R. A. 837, 17 Am. St.
78.

7 Mann v. Jackson, 84 Maine 400,
24 Atl. 886, 1 L. R. A. 707, 30 Am.
St. 358; Nagle v. Hirsch, — Ind. App.
—, 108 N. E. 9; Courter v. Stagg, 27
N. J. Eq. 305.

77In re Bruck’s Estate, 185 Pa. St.
194, 39 Atl. 813; In re Hotz’s Estate,
38 Pa. St. 422, 80 Am. Dec. 490.

78 See post, ch. 30, § 897.

79 Ransdell v. Bostin, 172 Ill. 439,
50 N. E. 111, 43 L. R. A. 526; Con-
rad v. Long, 33 Mich. 78; Hawke v.
Euyart, 30 Nebr. 149, 46 N. W. 422,
27 Am. St. 391; Graydon v. Graydon,
23 N. J. Eq. 229; In re Haight, 51
App. Div. 310, 64 N. Y. S. 1029.

80In re Haight, 51 App. Div. 310,
6A N. Y. S. 1029.

81 Ransdell vy. Boston, 172 Ill. 439,
50 N. E. 111, 43 L. R. A. 526; Winn
v. Hall, 1 Ky. L. 337; Coe v. Hill,
201 Mass. 15, 86 N. E. 949; Thayer
v. Spear, 58 Vt. 327, 2 Atl. 161.
263 CONDITIONS AND RESTRICTIONS § 290
that each of testator’s daughters are to receive certain portions
of the estate on becoming widows or lawfully separated from
their husbands was held not void as against public policy in in-
ducing unlawful separation.*? Also a bequest providing for the
support of a married woman pending a present or contemplated
separation from her husband has been held valid.** The volun-
tary exercise by a legatee of a right which the law confers is
not against public policy, and does not avoid a testamentary
gift, the language of which may show the testator had in mind
that such a contingency might arise.** A condition attached to
a devise that the devisee should not be living with the woman
he married on a specified date, was held a condition and valid.**

§ 290. Conditions against contest of will—Owing to the
confused state of the law concerning conditions in wills impos-
ing forfeitures of benefits on beneficiaries contesting the will,
great care should be exercised in their preparation. Such a con-
dition in a will is a condition subsequent,** and is generally held
valid,*’ particularly when there is a limitation over on breach
of the condition ;** but in such case the gift is said to be merely
in terrorem and void as to personalty.*® It has been held in
some jurisdictions that a gift over is not necessary to the validity
of a non-contest clause.°°

82 Born v. Horstmann, 80 Cal. 452,
22 Pac. 169, 5 L. R. A. 577.

83 Witherspoon v. Brokaw, 85 Mo.
App. 169.

84 Coe v. Hill, 201 Mass. 15, 86 N.
E. 949,

85In re Gunning’s Estate, 234 Pa.
139, 83 Atl. 60.

86 Nevitt v. Woodburn, 190 Ill. 283,
60 N. E. 500.

87 Donegan v. Wade, 70 Ala. 501;
In re Miller’s Estate, 156 Cal. 119,
103 Pac. 842, 23 L. R. A. (N. S.)
868; Moran v. Moran, 144 Iowa 451,
123 N. W. 202, 30 L. R. A. (N. S.)
898; Bryant v. Thompson, 59 Hun
545, 14 N. Y. S. 28, 37 N. Y. St.
431; Bradford v. Bradford, 19 Ohio

St. 546, 2 Am. Rep. 419; In re Friend,
209 Pa. 442, 58 Atl. 853, 68 L. R. A.
447; Massie v. Massie, 54 Tex. Civ.
App. 617, 118 S. W. 219; Fifield v.

-Van Wyck, 94 Va. 557, 27 S. E. 446,

64 Am. St. 745.

88 Smithsonian Inst. v. Meech, 169
U. S. 398, 42 L. ed. 793, 18 Sup. Ct.
396; Thompson v. Gaut, 14 Lea
(Tenn.) 310.

89 Donegan v. Wade, 70 Ala. 501;
In re Arrowsmith, 162 App. Div. 623,
147 N. Y. S. 1016; Fifield v. Van
Wyck, 94 Va. 557, 27 S. E. 446, 64
Am. St. 745,

90In re Garcelon, 104 Cal. 570, 38
Pac. 414, 32 L. R. A. 595, 43 Am. St.
134,
WILLS 264

5 20

Such clause in the will embraces the contest of a codicil, where
the codicil merely modifies the will in some particulars, and ex-
pressly re-affirms it in every other particular.”

It is agreed, however, that there is no substantial ground for
any distinction in this respect between real and personal prop-
erty.’ It has been held that the condition may be enforced
even though the contest is abandoned by compromise ;** but is
not operative against infants.°* Some courts hold that if a prob-
able cause exists for a contest, the provision for forfeiture is
inoperative,®® while others hold that probable cause will not suf-
fice to exempt the contestant from the operation of the clause.’®
In the preparation of a clause against contest it is advisable, if
practicable, to make the condition precedent so that the gift will
not vest until the condition is performed, thus obviating the
necessity of forfeiture or divesting of title, as would be the
case if the condition were subsequent and the gift vested on the
death of the testator.°”

§ 291. Conditions against claims against estate —A condi-
tion inserted in a will to the effect that the gift shall be void if
the beneficiary presents a claim against the testator’s estate, has
been upheld as valid,®® and his presentation of a claim in viola-

91TIn re Hite’s Estate, 155 Cal. 436,
101 Pac. 443, 21 L. R. A. (N. S.) 953,
17 Ann. Cas. 993,

922 Jarman Wills, 53; In re Stew-
art, 1 Con. Surr. 412, 5 N. Y. S. 32,
24 .N. Y. St. 322; Bradford v. Brad-
ford, 19 Ohio St. 546, 2 Am. Rep.
419, .

93In re Hite’s Estate, 155 Cal. 436,
101 Pac. 443, 21 L. R. A. (N. S.) 953,
17 Ann. Cas. 993.

94 Bryant’ v. Thompson, 59 Hun
545, 14 N. Y. S. 28, 37-N. Y. St. 431.

95 Black v. Herring, 79 Md. 146, 28
Atl. 1063; In re Friend’s Estate, 209
Pa. 442, 58 Atl. 853, 68 L. R. A. 447;
Fifield v. Van Wyck, 94 Va. 557, 27
S. E. 446, 64 Am. St. 745.

96 Smithsonian Inst. v. Meech, 169
U.S. 398, 42 L. ed. 793, 18 Sup. Ct.
396; In re Miller’s Estate, 156 Cal.
119, 103 Pac. 842, 23 L. R. A. (N.
S.) 868; Hoit v. Hoit, 42 N. J. Eq.
388, 7 Atl. 856, 59 Am. Rep. 43;
Bradford v. Bradford, 19 Ohio St.
546, 2 Am. Rep. 419. >

97 See post, ch. 30, § 900.

98 Rogers v. Law, 1 Black (U. S.)
253, 17 L. ed. 58; Rockwell v. Swift,
59 Conn. 289, 20 Atl. 200; Farnham
v. Barker, 148 Mass. 204, 19 N. E.
371; In re Morey’s Estate, 49 Hun
608, 1 N. Y. S. 687, 16 N. Y. St.
776; Dunlap v. Ingram, 57 N. Car.
178.
265 CONDITIONS AND RESTRICTIONS § 292

tion of the condition operates as a forfeiture of the bequest.”
But suca condition has been held invalid where there was no
limitation over.* Thus where a testator inserted in his will a
declaration that he was not indebted to any of his children and
made certain bequests to them upon the condition that they
would not make a claim against his estate, there being no lim-
itation over on breach, it was held that the condition was in
terrorem only, and that the presentation of a valid claim did
not work a forfeiture.?

But a provision that if the legatee bring in a claim against
the estate, the amount thereof is to be deducted from the legacy,
has been held valid. Where a will provided that the value of
the services of a beneficiary should be added to the legacy given
him, in case such claim should be recorded against the estate
by “due course of law,” it was held that the allowance of the
claim by the court upon due presentation constituted “due course
of law,” and entitled the beneficiary to have the amount so al-
lowed added to the legacy given him.*

§ 292. Conditions against bankruptcy: or insolvency.—
Testators often desire to secure the gift-to their beneficiaries
free from liability for their debts, and to this end they often
make the gift upon the condition that the property is not to be
liable in any manner or shape for the debts of the beneficiary.
Such condition attached to an estate devised or bequeathed abso-
lutely and not in trust, is void, as inconsistent with, and repugnant
to, the state devised or bequeathed.? But gifts to beneficiaries
until they shall become bankrupt or insolvent, with limitation
over, have generally been held to be valid conditional limita-
tions. Such gift may be made by inserting a condition precedent

99 Rockwell v. Swift, 59 Conn. 289, 4In re Knauss’ Estate, 148 Pa. St.
20 Atl. 200. 265, 23 Atl. 894.

1In re Vandevort, 62 Hun 612, 17 5 Henderson v. Harness, 176 II)
N. Y. S. 316. 302, 52 N. E. 68; Van Osdell v.

2In re Vandevort, 62 Hun 612, 17 Champion, 89 Wis. 661, 62 N. W.
N. Y. S. 316. 539, 46 Am. St. 864, 27 L. R. A. 773.

3 Farnham vy. Barker, 148 Mass. 6 Nichols v. Eaton, 91 U. S. 716, 23
204, 19 N. E. 371. L. ed. 254; Leavitt v. Beirne, 21 Conn.
§ 293 WILLS 266
that it shall not vest until the beneficiary has discharged certain
obligations,” or by including a condition that the interest of the
first taker shall cease and that there shall be a gift over to an-
other upon the taking of the property devised on execution for
the debts of the first taker.®

It has been held that a gift upon condition that the estate
shall cease upon the insolvency of the beneficiary is valid, even
without a limitation over.® Such conditions are not favored
in law, and it has been held that the mere obtaining of a judg-
ment against the devisee,’® or the obtaining of a judgment and
issuing of an execution thereon which was returned “no prop-
erty” would not avoid the estate.

§ 293. Conditions as to residencc, occupation, education,
or religion.—Gifts made conditional on the residence of the
donee in a particular place, or that he will occupy the premisés
devised, etc., have been frequently upheld ;** but: such condition
must be clearly expressed, so as to avoid uncertainty.** It has
been held, however, that such condition as applied to married
women is void as tending to cause separation from her husband.**

A gift may be conditioned on the beneficiary engaging in a

‘certain trade or occupation ;*°

1; Campbell v. Foster, 35 N. Y. 361;
Nashville First Nat. Bank v. Nash-
ville Trust Co. (Tenn. Ch.), 62 5S. W.
392.

7St. John v. Dann, 66 Conn. 401,
34 Atl. 110; Johnson v. Gooch, 116
N. Car. 6&4, 21 S. E. 39.

8 Thornton v. Stanley, 55 Ohio St.
199, 45 N. E. 318; Brandon v. Rob-
inson, 18 Ves. Jr. 429. See also post,
ch. 30, § 903. :

® Rochford v. Hackman, 9 Hare
480, 16 Jur. 212, 21 L. J. Ch. 511.

10In re Carew, L. R. (1896) 2 Ch.
311.

11 Bryan v. Dunn, 120 N. Car. 36,
27 S. E. 37.

12 Lowe v. Cloud, 45 Ga. 481; Lind-
sey v. Lindsey, 45 Ind. 552; Irvine

or on his pursuing a: particular

v. Irvine, 15 S. W. 511, 12 Ky. L.
827; Marston v. Marston, 47 Maine
495; Jenkins v. Horwitz, 92 Md. 34,
7 Atl. 1022; Hart v. Chesley, 18 N.
H. 373; Casper v. Walker, 33 N. J.
Eg. 35; Reeves v. Craig, 60 N. Car.
208; Harrison v. Foote, 9 Tex. Civ.
App. 576, 30 S. W. 838; Keeler v.
Keeler, 39 Vt. 550; Connor v. Sher-
idan, 116 Wis. 666, 93 N. W. 835.
See also Shepard v. Burr (Del. Ch.),
87 Atl. 1020.

13 Shuman v. Heldman, 63 S. Car.
474, 41 S. E. 510.

14Born v. Horstmann, 80 Cal. 452,
22 Pac. 169, 338, 5 L. R. A. 577;
Conrad v. Long, 33 Mich. 78.

15 Seeley v. Hincks, 65 Conn. 1, 31
Atl. 533; Colby v. Dean, 70 N. H.
267 CONDITIONS AND RESTRICTIONS § 294
line of study or possessing certain educational qualifications.*°
Conditions attached to a devise or bequest that the beneficiary
shall become a member of a particular religious society, or ad-
here to a certain religious faith, or attend a particular church,
have been held valid.7 Also a condition that the beneficiary
withdraw from a certain religious body, faith, or order, has been
sustained.** These holdings are based on the principle that the
power to give includes the right to withhold or to fix the terms
of gift, no matter how whimsical or capricious they may be,
only provided that they do not in any way violate the law. Ex-
amples of conditions as to residence, occupation, education, and
religion will be found elsewhere in this work.’

§ 294. Conditions as to name or other personal character-
istics of beneficiary.— Conditions in a will that the beneficiary
should be christened and baptized by a certain name, or that he
shall adopt and assume a certain name, have been held reasonable
and enforcible.”” Also conditions that the beneficiary shall live
a moral life or shall reform are valid, and must be performed in
order to obtain or keep the gift.2* Thus a condition in a legacy
that the legatee’s right thereto shall depend upon the decision
of the executors at the end of a certain time that he is a re-
formed man, was held not to be void for uncertainty, and that
such decision was a condition precedent to his right to the leg-
acy.”?

Similar provisions have been held conditions precedent to the

591, 49 Atl. 574; Webster v. Morris,
66 Wis. 366, 28 N. W. 353, 57 Am.
Rep. 278.

16 Shepard v. Shepard, 57 Conn. 24,
17 Atl. 173; Baker v. Red, 4 Dana
(Ky.) 158. But see Coppedge v.
Weaver, 90 Ark. 444, 119 S. W. 678.

17 Magee v. O’Neill, 19 S. Car. 170,
45 Am. Rep. 765; In re Paulson, 127
Wis. 612, 107 N. W. 484,5 L. R. A.
(N. S.) 804.

18 Barnum v. Baltimore, 62 Md. 275,
50 Am. Rep. 219.

19 See post, ch. 30, art. 13.

20 Webster v. Cooper, 14 How. (U.
S.) 488, 14 L. ed. 510; Smith v. Smith,
64 Nebr. 563, 90 N. W. 560; In re
Jackson’s Will, 1 Pow. Surr. 20 N.
Y. S. 380, 47 N. Y. St. 443; In re
Bruch, 185 Pa. St. 194, 39 Atl. 813.

21 Hawke v. Euyart, 30 Nebr. 149,
46 N. W. 422, 27 Am. St. 391; Reuff
v. Coleman, 30 W. Va. 171, 3 S. E.
597.

22 Markham v. Hufford, 123 Mich.
505, 82 N. W. 222, 48 L. R. A. 580,
81 Am. St. 222.
§ 295

WILLS

268

right to obtain or keep the gift.2* Among the many conditions
of this character are, that the beneficiary shall be capable of
making a prudent use of the gift,?* that he shall abstain from

25

the use of tobacco,

intoxicating liquor,”* and card playing, or

that he shall exhibit various other desirable personal traits.”
Examples of these conditions will be found elsewhere in this

work.*8

§ 295.

Conditions as to support, payment of debts, etc.—

Gifts made upon the condition that the beneficiary shall support
or work for a person named, are reasonable, and generally up-

held.”

Such conditions are generally construed as conditions

subsequent.*® Gifts conditioned on the beneficiary’s paying -cer-
tain annuities, or furnishing support or care to another are or-
dinarily held to be conditions subsequent, and therefore do not.
defeat the devise or legacy on failure of performance caused by
the death of the annuitant before time of payment,** or by a

waiver of the provision.

Also a testator may create a valid condition precedent or
subsequent that the beneficiary pay certain debts,** or a sum of

23 West v. Moore, 37 Miss. 114;
Jarboe v. Hey, 122 Mo. 341, 26 S.
W. 968; Stark v. Conde, 100 Wis.
633, 76 N. W. 600:

24 Rushmore v. Rushmore, 59 Hun
615, 12 N. Y. S. 776, 35 N. Y. St.
845.

25 Onderdonk v. Onderdonk, 127 N.
Y. 196, 27 N. E. 839.

26 Jordan v. James Dunn & Ontario
Loan &c. Co., 13 Ont. 267.

27 Campbell v. Clough, 71 N. H. 181,
51 Atl. 668; Cushman v. Cushman,
116 App. Div. 763, 102 N. Y. S. 258.

28 See post, ch. 30, art. 13.

29 Gingrich v. Gingrich, 146 Ind.
227, 42 N. E. 101; Irvine v. Irvine,
15 S. W. 511, 12 Ky. L. 827; Pearl
v. Lockwood, 123 Mich. 142, 81 N.
W. 1087; Harris v. Wright, 118 N.
Car. 422, 24 S. E. 751; McCall v.
McCall, 161 Pa. St. 412, 29 Atl. 63.

30 Gingrich v. Gingrich, 146 Ind.
227, 42 N. E. 101; Allen v. Allen, 121
N. Car. 328, 28 S. E. 513.

31Sherman v. American Cong.
Assn., 98 Fed. 495; Morse v. Hay-
den, 82 Maine 227, 19 Atl. 443; Nun-
nery v. Carter, 58 N. Car. 370, 78
Am. Dec, 231. ;

32 Alexander v. Alexander, 156 Mo.
413, 57 S. W. 110; Livingston v. Gor-
don, 84 N. Y. 136.

33 Howze v. Davis, 76 Ala. 381; St.
John v. Dann, 66 Conn. 401, 34 Atl.
110; Schnell v. Schnell, 39 Ind. App.
556, 80 N. E. 432; Taylor v. Tolen,
38 N. J. Eq. 91; Monjo v. Wood-
house, 185 N. Y. 295, 78 N. E. 71,
6L. R. A. (N. S.) 746; Ledebuhr
v. Wisconsin Trust Co., 112 Wis. 657,
88 N. W. 607.
269 CONDITIONS AND RESTRICTIONS § 296
money to a named person.** If the testator intends that the
gift shall be upon condition subsequent, the language used should
clearly express that intention, otherwise it is liable to be held
not a condition at all, but a charge.** Examples of conditions

of the character mentioned above may be found elsewhere.**

§ 296. Conditions against alienation in general.—The
power to sell or incumber real estate is an inseparable incident
of the ownership thereof in fee, and so when the fee is given
it carries with it this important incident. This power to sell
or incumber the land is not only the most valuable and impor-
tant incident of ownership, but it is absolutely necessary to
meet the social and commercial exigencies of the community.
Prompted by a desire to prevent their property from being sold
or dissipated after they die, many testators have attempted to
create conditions restraining the power of their. beneficiaries to
dispose of or incumber their estate. Such a condition attached
to an unqualified devise of real estate, or an absolute bequest
of personalty, is void, as repugnant to the nature of the estate
or interest given.*” A devise with limitation over in case the
first devisee shall alienate the property is void for the same rea-

son.*8

84 Whiting’s Appeal, 67 Conn. 379,
35 Atl. 268; Ditchey v. Lee, 167 Ind.
267, 78 N. E. 972; Richards v. Rich-
ards, 90 Iowa 606, 58 N. W. 926;
Scott v. Kramer, 31 Ohio St. 295.

35 McCarty v. Fish, 87 Mich. 48, 49
N. W. 513; Isner v. Kelley, 51 W.
Va. 82, 41 S. E. 158,

86 See post, ch. 30, art. 13.

37 Potter v. Couch, 141 U. S. 296,
35 L. ed. 721, 11 Sup. Ct. 1005;
Crumpler v. Barfield &c. Co., 114 Ga.
570, 40 S. E. 808; Muhlke v. Teide-
mann, 177 Ill. 606, 52 N. E. 843; Al-
len v. Craft, 109 Ind. 476, 9'N. E. 919;
Goldsmith v. Petersen, 159 Iowa 692,
141 N. W. 60; Harrison v. Brophy, 59
Kans. 1, 51 Pac. 883, 40 L. R. A. 721;
Harkness v. Lisle, 132 Ky. 767, 117
S. W. 264; Deering v. Tucker, 55

But where the estate given is an equitable estate or a

Maine 284; Smith v. Clark, 10 Md.
186; Lathorp v. Merrill, 207 Mass.
6, 92 N. E. 1019; Bennett v. Chapin,
77 Mich. 526, 43 N. W. 893, 7 L.
R. A. 377; Morse v. Blood, 68 Minn.
442, 71 N. W. 682; Feit v. Richards,
64 N. J. Eq. 16, 53 Atl. 824; Onder-
donk v. Onderdonk, 127 N. Y. 196,
27 N. E. 839; Wool v. Fleetwood,
136 N. Car. 460, 48 S. E. 785, 67 L.
R. A. 444; Anderson v. Cary, 36 Ohio
St. 506, 38 Am. Rep. 602; In re Shall-
cross, 200 Pa. 122, 49 Atl. 936; Moore
vy. Sanders, 15 S. Car. 440, 40 Am.
Rep. 703; Overton v. Lea, 108 Tenn.
505, 68 S. W.. 250; Zillmer v. Land-
guth, 94 Wis. 607, 69 N. W. 568.

38 Howard v. Carusi, 109 U. S. 725,
27 L. ed. 1089, 3 Sup. Ct. 575; Steib
v. Whitehead, 111 Ill. 247; Kelley v.
§ 296 WILLS 270
life estate, it would seem that the testator may limit it in any
way that he may desire, and this upon the theory that the un-
restricted fee is vested somewhere else.*® A testator can not
devise a feé, and then destroy it entirely.*°

Conditions subsequent preventing any and all alienation of
an estate in fee, even for a limited time, are generally declared
void.** Thus a condition that the property devised in fee shall
not be sold until the oldest of the children arrived at the age
of twenty-five years,*? and a condition that the realty devised
in fee should not be sold, mortgaged or incumbered for thirty
years, was held void.#

But a devise of an estate for life or for years with a condi-
tion, either subsequent or precedent, restraining alienation, has
been held valid.** Also a condition that the devisee shall not
sell to a particular person or limited class of persons, has been
held good.**

But in order to make a valid restriction upon alienation, even
for a limited time or to a limited class of persons, there must
be a provision for a reversion or limitation over to a third per-.
son, in case of violation of the restriction.*®

A condition that the devisee shall not sell the land until he ar-
rives at a certain age, as twenty-five years or thirty-five years,

Meins, 135 Mass. 231; Anderson v. W. 586; Zillmer v. Landguth, 94 Wis.

Cary, 36 Ohio St. 506, 38 Am. Rep.
602.

39 Trammell v. Johnston, 54 Ga.
340; Weller v. Noffsinger, 57 Nebr.
455, 77 N. W. 1075; Dulin v. Moore,
96 Tex. 135, 70 S. W. 742.

40 Harkness v. Lisle, 132 Ky. 767,
117 S. W. 264.

41 Jones v. Port Huron E. & T. Co.,
171 Ill. 502, 49 N. E. 700; Mandle-
jbaum v. McDonell, 29 Mich. 78, 18
‘Am. Rep. 61; Anderson v. Cary, 36
Ohio St. 506, 38 Am. Rep. 602.
Contra: Wallace v. Smith, 113 Ky.
263, 68 S. W. 131, 24 Ky. L. 139.

42 Roederer v. Hess, 112 Ky. 807,
66 S. W. 1012, 23 Ky. L. 2165;
Fowlkes v. Wagoner (Tenn.), 46 S.

607, 69 N. W. 568.

#3 Jones v. Port Huron Engine &c.
Co., 171 Ill. 502, 49 N. E. 700.

44 Conger v. Lowe, 124 Ind. 368, 24
N. E. 889, 9 L. R. A. 165; Roberts
v. Stevens, 84° Maine 325, 24 Atl. 873,
17 L. R. A. 266; Lampert v. Haydel,
96 Mo. 439, 9 S. W. 780,2 L. R. A.
113, 9 Am. St. 358; De Peyster v.
Michael, 6 N. Y. 467, 57 Am. Dec.
470; Yost v. McKee, 179 Pa. St. 381,
36 Atl. 317, 57 Am. St. 604. But see
Hunt v. Hawes, 181 Ill. 343, 54 N. E.
953.

45 Overton v. Lea, 108 Tenn. 505,
68 S. W. 250.

46 Conger v. Lowe, 124 Ind. 368, 24
N. E. 889, 9 L. R. A. 165; Mandle-
271 CONDITIONS AND RESTRICTIONS § 297
is valid, the restriction not being unreasonable.*7 Also a con-
dition that the land devised shall not be sold or conveyed by the
devisees until they have been in possession of it for twehty years,
has been held good.*

A testator may accomplish his desire to prevent the sale or
dissipation of his property after death (1) by the insertion of
a provision that the estate is to become void on the bankruptcy
of the beneficiary or any attempt by his creditors to reach the
property,*® and (2) by making the gift to trustees with power
to apply the corpus or income to the use of the beneficiary ac-
cording to their discretion.”

§ 297. Conditions restraining married women from alien-
ating.—Contrary to the rule that a condition restraining a
beneficiary from alienating an estate in fee simple, it is gener-
ally held that a married woman may be restrained by will from
the voluntary or involuntary alienation of her estate ;°* and ‘the
fact that she was unmarried at the time the restriction was made
does not render it invalid.°2 The restriction, however, will have
no binding force so long as she is unmarried, but will become
binding upon her marriage, unless the testator limits the re-

straint to a particular coverture.®*

baum v. McDonell, 29 Mich. 78, 18
Am. Rep. 61; Fowlkes v. Wagoner
(Tenn.), 46 S. W. 586.

47 Wallace v. Smith, 113 Ky. 263, 68
S. W. 131, 24 Ky. L. 139.

48 Call v. Shewmaker, 69 S. W. 749,
24 Ky. L. 1167.

49 Nichols v. Eaton, 91 U. S. 716,
23 L. ed. 254; Bull v. Kentucky Nat.
Bank, 90 Ky. 452, 14 S. W. 525, 12
Ky. L. 536, 12 L. R. A. 37; Weller
v. Noffsinger, 57 Nebr. 455, 77 N.
W. 1075; Emery v. Van, Syckel, 17
N. J. Eq. 564; Bramhall v. Ferris,
14 .N. Y. 41, 67 Am. Dec. 113; Camp
v. Cleary, 76 Va. 140; In re Lus-
comb’s Will, 109 Wis. 186, 85 N. W.
341.

50 Brooks v. Raynolds, 59 Fed. 923;
Seymour v. McAvoy, 121 Cal. 438, 53
Pac. 946, 41 L. R. A. 544; Sinnott

v. Moore, 113 Ga. 908, 39 S. E. 415;
Meek v. Briggs, 87 Iowa 610, 54 N.
W. 456, 43 Am. St. 410; Guy v.
Mayes, 235 Mo. 390, 138 S. W. 510.
See post, ch. 30, art. 16.

51 Robinson v. Randolph, 21 Fla.
629, 58 Am. Rep. 692; Freeman v.
Flood, 16 Ga. 528; Gunn v. Brown,
63 Md. 96; Simonton v. White, 93
Tex. 50, 53 S. W. 339, 77 Am. St.
824; Monday v. Vance, 92 Tex. 428,
49 S. W. 516.

52 Robinson v. Randolph, 21 Fla.
629, 58 Am. Rep. 692.

53 Phillips v. Grayson, 23 Ark. 769;
Fears v. Brooks, 12 Ga. 195; Nix v.
Bradley, 6 Rich. Eq. (S. Car.) 43;
Beaufort v. Collier, 6 Humph.
(Tenn.) 487, 44 Am. Dec. 321; Tul-
lett v. Armstrong, 4 Myl. & C. 377.
CHAPTER XVI

LAPSE, AND METHODS OF PREVENTING

SECTION

305. Lapsed and void gifts in general.

306. Death of beneficiary as cause of
lapse.

307. Causes of lapse other than by
death of beneficiary.

308. Devolution of lapsed legacies and .

devises.
309. Intention of testator respecting
lapse.

§ 305.

SECTION

310. Lapse prevented by
provisions.

311. Lapse prevented by substitution
or gift over.

312. Lapse prevented by gift over
after gift to a class.

313. Lapse prevented by residuary
clause. :

statutory

Lapsed and void gifts in general—A legacy or de-

vise is said to lapse when it: fails because the beneficiary in some
way becomes incapable of taking under the will before such de-
vise or legacy vests.1 This may result from the death of the
beneficiary before the testator,? or before the estate vests.*
There is a distinction between a lapsed and a void gift. In
the former case the beneficiary dies in the interim between the
execution of the will and the death of the testator, but in the
latter case the gift is void from the beginning, as if the bene-

ficiary was dead when the will was made.°
The rule as to lapsing of legacies applies as well to residuary

legatees as to others.®

1Hibler v. Hibler, 104 Mich. 274,
62 N. W. 361; Murphy v. McKeon,
53 N. J. Eq. 406, 32 Atl. 374; Shad-
den v. Hembree, 17 Ore. 14, 18 Pac.
572; In re Waln’s Estate, 189 Pa. St.
631, 42 Atl. 299,

3 Galloway v. Darby, 105 Ark. 558,
151 S. W. 1014, 44 L. R. A. (N. S.)
782, Ann. Cas. 1914 D, 712; In re
Sutra’s Estate, 139 Cal. 87, 72 Pac.
827; Miller v. Metcalf, 77 Conn. 176,

58 Atl. 743; Lemmons v. Reynolds, °°
170 Mo. 227, 71 S. W. 135.

4Robinson v. Palmer, 90 Maine
246, 38 Atl. 103; Goebel v. Wolf, 113
N. Y. 405, 21 N. E. 388, 10 Am. St.
464.

5 Murphy v. McKeon, 53 N. J. Ea.
406, 32 Atl. 374.

6 Shelton v. Hadlock, 62 Conn. 140,
25 Atl. 483.

272
273 LAPSE—METHODS OF PREVENTING § 306

Where the deceased was the sole legatee the will is not re-
voked by a lapse caused by his death,’ but the will may still be
probated in order to empower the executor with the legal right
to settle the affairs of the deceased testator, and to pay his debts

and funeral expenses.

§ 306. Death of beneficiary as cause of lapse.—A lapse is
most frequently caused by the death of the beneficiary before
that of the testator, and it is immaterial whether or not the tes-
tator had knowledge, in his'lifetime, of the death of such bene-
ficiary.2 A gift will also lapse where the beneficiary dies after
the testator, but before the time arrives for the gift to vest.°

A devise in trust or in the nature of a trust does not lapse
by reason of the death of the trustee before the testator,*® but
lapses where the cestui que trust dies before the testator** in
case there is no gift over.? There is no lapse because of the
death of a life tenant before the testator, where the will gives
a remainder in fee.** Where the gift is to several as tenants
in common, the death of one before the testator will occasion
only his share of the gift to lapse.** But where the gift is made
to several as joint tenants, or as a class, there is no lapse on
account of the death of any member so long as any survive,
but the entire gift goes over to the survivor or survivors.”
When, however, the parties to whom a legacy is given are not

7 Hoitt v. Hoitt, 63 N. H. 475, 3 12Thompson vy. Thornton, 197

Atl. 604, 56 Am. Rep. 530.

8 Dildine v. Dildine, 32 N. J. Eq.
78; Dixon v. Cooper, 88 Tenn. 177,
12 S. W. 445.

®2Usry v. Hobbs, 58 Ga. 32; Gillett
yv. Gillett, 109 Ill. App. 75; McClain
vy. Capper, 98 Iowa 145, 67 N. W.
102; Minot v. Doggett, 190 Mass.
435, 77 N. E. 629; Garland v. Smiley,
51 N. J. Eq. 198, 26 Atl. 164; Clark
v. Cammann, 160 N. Y. 315, 54 N.
E. 709.

10In re Elmslie’s Estate, 10 Pa.
Dist. 397.

11 Stanwood v. Stanwood, 179 Mass.
223, 60 N. E. 584.

18—Tuomp, WILLs.

Mass. 273, 83 N. E. 880.

18 Lacey v. Floyd, 99 Tex. 112, &
S. W. 665.

14 Bill v. Payne, 62 Conn. 140, 25
Atl. 354; Dorsey v. Dodson, 203 Ill.
32, 67 N. E. 395; Stetson v. East-
man, 84 Maine 366, 24 Atl. 868; Best
v. Berry, 189 Mass. 510, 75 N. E.
743,109 Am. St. 651.

15 Rudolph v. Rudolph, 207 Ill. 266,
69 N. E. 834, 99 Am. St. 211; Gray
v. Bailey, 42 Ind. 349; Howard v.
Trustees, 88 Md. 292, 41 Atl. 156;
Meserve v. Haak, 191 Mass. 220, 77
N. E. 377,
§ 307 WILLS 274
described as a class, but by their individual names—though they
may constitute a class—the death of any one of them, before
the testator, causes a lapse of the legacy intended for the legatee
so dying.*®

Where real estate devised is charged with the payment of a
legacy, such legacy does not lapse by reason of the death of the
devisee before the testator, but the heir takes subject to the
charge.*7 After a gift has once vested there can be no lapse
by the subsequent death of the beneficiary,** even though his
death occurs before the legacy becomes payable.*® If the gift
vests on the death of the testator, it will not lapse because of
the death of the beneficiary before the time arrives for his en-
joyment in possession. But if the gift does not vest until some
time after the death of the testator, the fact that the beneficiary
survives him is immaterial.”

§ 307. Causes of lapse other than by death of beneficiary.
—Aside from lapse caused by the death of the beneficiary prior
to the death of the testator, there may be a lapse where there

is no one in existence at the testator’s death capable of taking

the gift,2* or when the purpose of the gift fails,
is void, or where it becomes impossible,

22 or when it

24 or where the bene-

ficiary, though competent to take the gift, refuses to do so.”
Where the gift is to a corporation, and it ceases to have a

16 Workman v. Workman, 2 Allen
(Mass.) 472.

17 Cady v. Cady, 67 Miss. 425, 7 So.
216; Gilroy v. Richards, 26 Tex. Civ.
App. 355, 63 S. W. 664.

18 Ballard v. Camplin, 161 Ind. 16,
67 N. E. 505.

19 Newberry v. Hinman, 49 Conn.
130; Dorsey v. Dodson, 203 Ill. 32,
67 N. E. 395; Hibler v. Hibler, 104
Mich. 274, 62 N. W. 361.

20 Bill v. Payne, 62 Conn. 140, 25
Atl. 354; Davie v. Wynn, 80 Ga. 673,
6 S. E. 183; Borgner v. Brown, 133
Ind. 391, 33 N. E. 92; Thompson v.
Myers, 95 Ky. 597, 26 S. W. 1014;

Keniston v.. Adams, 80 Maine 290, 14
Atl. 203.

21New Orleans v. Hardie, 43 La.
Ann. 251, 9 So. 12.

22 Chadwick v. Chadwick, 37 N. J.
Eq. 71; Burleyson v. Whitley, 97 N.
Car. 295, 2 S. E. 450.

23Jn re Russell’s Estate, 150 Cal.
604, 89 Pac. 345; Wolfe v. Hatheway,
81 Conn. 181, 70 Atl. 645; Kinne v.
Phares, 79 Kans. 366, 100 Pac. 287;
Moss v. Helsley, 60 Tex. 426.

24 Hall v. Smith, 61 N. H. 144.

25 Sawyer v. Freeman, 161 Mass.
543, 37 N. E. 942; Hall v. Smith, 61
N. H. 144.
275 LAPSE—METHODS OF PREVENTING § 308
corporate existence for the purpose of taking the gift prior to
the death of the testator, the gift will lapse.**

The lapse of a legacy may be occasioned by the legatee ceas-
ing to occupy the position upon which the testator’s bounty de-
pends, as the remarriage of the testator’s widow to whom he
has left a legacy during her widowhood.*” Also a gift will lapse
where it is made upon a condition precedent and such condition
is not performed within a reasonable time,”* or where it is made
contingent upon an event which does not happen.”

§ 308. Devolution of lapsed legacies and devises.—A dis-
tinction was made by the common law as to the ultimate des-
tination of the property attempted to be disposed of by will
between a devise of land and a bequest of personal property.
In case of the lapse of a devise the property was not comprised
in a general or residuary devise, but passed to the heirs as in-
testate property ;°° while a lapsed legacy, unless a contrary in-
tention appeared, passed under the residuary clause of the will.**
This distinction seems to have sprung from the fact that no
real estate acquired by the testator after the execution of his
will passed under the residuary clause, while such a clause in-
cluded all personal property owned by the testator at the time
of his death not otherwise given, no matter when acquired.”

26Crum v. Bliss, 47 Conn. 592;
Brooks v. Belfast,.90 Maine 318, 38
Atl. 222; Stone v. Framingham, 109
Mass. 303; Gladding v. St. Matthew’s
‘Church, 25 R. I. 628, 57 Atl. 860, 65
L. R. A. 225, 105 Am. St. 904.

27 Schneider v. Heilbron, 115 App.
Div. 720, 101 N. Y. S. 152.

28 Mills v. Newberry, 112 Ilf. 123, 1
N. E. 156, 54 Am. Rep. 213; Drew
v. Wakefield, 54 Maine 291; Chad-
wick v. Chadwick, 37 N. J. Eq. 71.

29 Gibson v. Seymour, 102 Ind. 485,
2 N. E. 305, 52 Am. Rep. 688; Mc-
Greevy v- McGrath, 152 Mass. 24, 25
N. E. 29.

30 Beers v. Narramore, 61 Conn. 13,
22 Atl. 1061; Gill v. Grand Tower

Mining &c. Co., 92 Ill. 249; Heald
v. Heald, 56 Md. 300; Hudson v.
Gray, 58 Miss. 882; Yard v. Murray,
86 Pa. St. 113; Kelly v. Nichols, 18
R. I. 62, 25 Ati 840, 19 L. R. A.
413; Stonestreet v. Doyle, 75 Va. 356,
AO Am. Rep. 731.

31 Roberson v. Roberson, 21 Ala.
273; Hughes v. Allen, 31 Ga. 483;
‘Crerar v. Williams, 145 Ill. 625, 34
N. E. 467, 21 L. R. A. 454; Chap-
man v. Chick, 81 Maine 109, 16 Atl.
407; Reid v. Walbach, 75 Md. 205,
23 Atl. 472; In re Batchelder, 147
Mass. 465, 18 N. E. 225.

32 Molineaux v. Raynolds, 55 N. J.
Eg. 187, 36 Atl. 276,
§ 309 276

‘WILLS

But this rule has been changed by the aid of statutes and the
presumption against partial intestacy, so that in most jurisdic-
tions a residuary devise or bequest now carries everything the
testator has attempted but failed to dispose of,** unless a con-
trary intention appears from the will.®* The general rule is
that, where a specific legacy or devise lapses on account of the
death of the legatee or devisee dying before the testator, and
such deceased legatee or devisee was also a residuary legatee
or devisee, the lapsed specific legacy or devise falls into the
residuum.®> Where, however, the lapse is in the residuary clause,
and the beneficiary dying before the testator is the sole bene-
ficiary, or one of several who take as tenants in common, the
gift which lapses is not reabsorbed into the residue, but goes
to the heirs or next of kin of the testator as intestate property.*°

§ 309. Intention of testator respecting lapse.—A testator
may, by the terms of his will, prevent a legacy from lapsing,
but to effect this object he must declare, either expressly, or in
terms from which it can be collected with sufficient clearness,
who is to take in case of the primary legatee’s death before his
own death.*” When the intention of the testator in this respect

is clearly shown, it will be given full force and effect.**

33 Waterman v. Canal Louisiana
Bank, 186 Fed. 71; Johnson v. Holi-
field, 82 Ala. 123, 2 So. 753; Galloway
v. Darby, 105 Ark. 558, 151 S. W.
1014, 44 L. R. A. (N. S.) 782, Ann.
Cas. 1914.D, 712; In re Upham’s Es-
tate, 127 Cal. 90, 59 Pac. 315; Rock-
well v. Bradshaw, 67 Conn. 8, 34 Atl.
758; Sullivan v. Larkin, 60 Kans. 5459
57 Pac. 105; Mueller v. Buenger, 184
Mo. 458, 83 S. W. 458, 67 L. R. A.
648, 105 Am. St. 541; Cruikshank v.
Home for Friendless, 113 N. Y. 337,
21 N. E. 64,4 L. R. A. 140; Lenz
v. Sens, 27 Tex. Civ. App. 442, 66
S. W. 110.

34 Moss v. Helsley, 60 Tex. 426.

85 Hogan v. Hogan, 3 Dana (Ky.)
572; Stetson v. Eastman, 84 Maine
366, 24 Atl. 868; Barnum v. Barnum,

42 Md. 251; Dresel v. King, 198
Mass. 546, 85 N. E. 77, 126 Am. St.
459; Givens v. Ott, 222 Mo. 395, 121
S. W. 23; In ré Whiting, 33 Misc.
274, 68 N. Y. S. 733; Duckworth v.
Jordan, 138 N. Car. 520, 51 S. E.
109; In re Reynolds’ Will, 20 R. I.
429, 39 Atl. 896; In re Gamble, 13
Ont. L. R. 299.

36 Hamlet v. Johnson, 26 Ala. 557;
Hutchinson’s Appeal, 34 Conn. 300;
Wentworth v. Read, 166 Ill. 139, 46
N. E. 777; Stetson v. Eastman, 84
Maine 366, 24 Atl. 868.

37 Bates v. Dewson, 128 Mass. 334;
University of Pennsylvania Trustees’
Appeal, 97 Pa. St. 187; Coleman v.
Jackson (Tex. Civ. App.), 126 S. W.
1178.

88 Kerrigan v. Tabb (N. J.), 39
277 LAPSE—METHODS OF PREVENTING § 310

Where tne wiil shows a clear intention of the testator that the
property shall go to the heirs of the beneficiary, a lapse is said
to be prevented by implication.*® Some authorities hold that it
is requisite not only that the testator should declare his inten-
tion that the legacy shall not lapse, but that he shall point out
how the same shall be kept on foot in the event of the decease
of the legatee before the testator, and to whom it shall be paid.*°

It has been held that the mere use of the words “‘heirs,” “‘ex-
ecutors,”’ “administrators,” etc., will not prevent a lapse where
the beneficiary dies before the testator, as these words are prima
facie to be regarded only as words of limitation, calculated to
describe the nature of the estate given to the legatee or devisee,
and not as used with any express intention of preventing a lapse.**
Where the testator clearly intends that his gift shall pass to the
beneficiaries as a class, there is no lapse by reason of the death
of any one of them before the class is determined.**

§ 310. Lapse prevented by statutory provisions.—At the
present time in England, and generally in this country, statutes
for the prevention of the lapsing of gifts in case of the death
of the donee before the testator, where the testator leaves issue
or lineal descendants surviving him, are very generally in force.
Some of these statutes are applicable only to gifts to children,*
or to children and grandchildren of the testator ;** others extend

Atl. 701; In re McGovran’s Estate,
190 Pa. St. 375, 42 Atl. 705; Rivers
v. Rivers, 36 S. Car. 302, 15 S. E.
137; Brice v. Horner (Tenn.), 38 S.
W. 440.

39 Ballard v. Camplin, 161 Ind. 16,
67 N. E. 505; In re Freeman, 146
Jowa 38, 124 N. W. 804; Mann v.
Hyde, 71 Mich. 278, 39 N. W. 78;
Rivers v. Rivers, 36 S. Car. 302, 15
S. E. 137,

402 Redfield Wills 162; Sibley v.
Cook, 3 Atk. 572,

41 Jackson v. Alson, 67 Conn. 249,
34 Atl. 1106; Thornley v. Kershaw,
109 Ill. App. 113; Maxwell v. Feath-
erston, 83 Ind. 339; Farnsworth v.

Whiting, 102 Maine 296, 66 Atl. 831;
Horton v. Earle, 162 Mass. 448, 38
N. E. 1135; Loveren v. Donaldson,
69 N. H. 639, 45 Atl. 715; McKiernan
v. Beardslee, 72 N. J. Eq. 283, 73
Atl. 815; In re Wells, 113 N. Y. 396,
21 N. E. 137, 10 Am. St. 457; Bar-
nett’s Appeal, 104 Pa. St. 342.

42 Gordon v. Jackson, 58 N. J. Eq.
166, 43 Atl. 98; In re McGovran’s
Estate, 190 Pa. St. 375, 42 Atl. 705.

43 South Carolina: Civ. Code
(1912), § 3574; Logan v. Brunson,
56 S. Car. 7, 33 S. E. 737.

44Colorado: Mills’ Ann. Stat.
(1912), § 7875; Illinois: Ann. Stats.
(1913), p. 2275, par. 4212.
§ 310 WILLS 278
to gifts to testator’s children, grandchildren, brothers and sis-
ters;** while others apply only to gifts to the children or de-
scendants of the testator.**

A few statutes entirely abolish lapse by death of the legatee.
before the testator, giving the property to the heirs or distribu-
tees of the deceased legatee.*7 In others a lapse is abolished
in all cases if the beneficiary leave issue surviving the testator,

the issue taking as the ancestor would have taken had he sur-

vived.*8

In a large majority of the states the statutes leave

the common-law lapse unmodified, unless the deceased benefi-
ciary was a relative of the testator, and left issue surviving.”
These statutes’do not ordinarily apply where the beneficiary
died before the will was executed ;°° nor where the interest was
vested in the beneficiary upon the testator’s death, and he dies

before taking possession of the property devised.**

45 Connecticut: Gen. Stat. (1902),
§ 296; New Jersey: Gen. Stat.
(1911), p. 5866, § 22; Pennsylvania:
Purdon’s Dig. Stat. (1910), p. 5142,
§ 21.

46 Alabama: Code (1907), § 6162;
Arkansas: Dig. Stat. (1904), $ 8022;

Arizona: Rev. Stat. (1913), par. 1218,
p. 499; Indiana: Burns’ Ann. Stat.

(1914), § 3127; Mississippi: Code
(1906), § 5081; New York: Consol.
Laws (1909), p. 967; North Car-
olina: Pell’s Revisal (1908), § 3144;

Texas: Sayles’ Civ. Stats. (1914),
art. 7869.
47Towa: Code (1897), § 3281;

Maryland: Ann. Code (1911), p.
2148, art. 93, § 326.

48 District of Columbia: Code
(1911), § 1631; Georgia: Code
(1911), § 3906; Kentucky: Carroll’s
Stats. (1914), § 4841; New Hamp-
shire: Pub. Stat. (1901-1913), p. 617;
Rhode Island: Gen. Laws (1909),
ch. 254, § 31; Tennessee: Code
(1896), § 3928; Virginia: Ann. Code
(1904), § 2523; West Virginia: Ann.
Code (1913), ch. 77, § 3877.

The stat-

49 Alaska: Carter’s Ann. Codes
(1900), part 5, ch. 15, § 145; Cali-
fornia: Civ Code (1915), § 1310;
Idaho: Rev. Code (1908), § 5747;
Kansas: Gen. Stat. (1909), § 9832;
Maine: Rev. Stat. (1903), ch. 76, §
10; Massachusetts: Rev. Laws
(1902), ch. 135, § 21; Minnesota:
Gen. Stat. (1913), § 7262; Missouri:
Rev. Stat. (1909), § 546; Montana:
Civ. Code (1907), § 4789; Nebraska:
Cobbey’s Ann. Stat. (1911), § 5016;
Nevada: Rev. Laws (1912), § 6219;
North Dakota: Comp. Laws (1913),
§ 5679; Ohio: Ann. Code (1912),
§ 10581; Oklahoma: Rev. Laws
(1910), § 8407; Oregon: Lord’s
Ore. Laws (1909), § 7327; South Da-
kota: Comp. Laws (1913), § 1062;
Utah: Comp. Laws (1907), §§ 2764,
2793; Vermont: Pub. Stat. (1906),
§ 2949; Washington: Rem. and Bal.
Ann. Codes & Stats. (1910), § 1328;
Wisconsin: Stat. (1913), § 2289,

50 Williams v. Knight, 18 R. I. 333,
27 Atl. 210.

51 Patton v. Ludington, 103 Wis.
629, 79 N. W. 1073, 74 Am. St. 910.
279 LAPSE—METHODS OF PREVENTING § 311,
utes are generally held applicable to gifts whether made to in-
dividuals or classes ;°* but in a few jurisdictions the courts have
held that they apply to gifts to individuals only, and not to gifts

to classes.*°

§ 311. Lapse prevented by substitution or gift over.—One
of the most common methods of preventing a lapse is by a pro-
vision in the will substituting one beneficiary for another upon
the happening of a specified contingency. The contingency most
usually provided for is that of the death of the beneficiary be-
fore the testator, and a lapse by the happening of such a con-
tingency is prevented by an express provision for a substitution
or gift over to another.** Where a will is specially prepared
so as to avoid a lapse, care must be taken to show exactly how
the gift is to go in the event of the beneficiary dying in the life-
time of the testator. It should declare in express terms what
person or persons are to be substituted. Although, it has been
held that a substitution is clearly implied by the use of the term
“or” in the disjunctive, although there is no gift over.” Thus
a gift to a particular person “or” his heirs will not lapse upon
the death of the beneficiary before the testator.°* The inser-
tion, after the name of the beneficiary, of the words “‘his heirs,
executors, administrators and assigns,” will not prevent a lapse
in case of the death of the beneficiary before the testator, un-
less a declaration that the gift shall not lapse is superadded ;**

156 Mass. 388, 31 N. E. 298; Martin
v. Lachasse, 47 Mo. 591; Varick v.

52 Downing v. Nicholson, 115 Iowa
493, 88 N. W. 1064, 91 Am. St. 175;

Sloan v. Thornton, 102 Ky. 443, 43
S. W. 415, 19 Ky. L. 1511; Howland
v. Slade, 155 Mass. 415, 29 N. E. 631.
53 Martin v. Mercer University, 98
Ga. 320, 25 S. E. 522; Young v. Rob-
inson, 11 Gill. & J. (Md.) 328; Grant
v. Mosely (Tenn.), 52 S. W. 508;
Olney v. Bates, 3 Drew. Ch. 319.
54In re Bennett’s Estate, 134 Cal.
320, 66 Pac. 370; Miller v. Metcalf,
77 Conn. 176, 58 Atl. 743; Gilbert v.
Gilbert, 127 Iowa 568, 103 N. W.
789; Armstrong v. Armstrong, 14 B.
Mon. (Ky.) 333; Pollock v. Farnham,

Smith, 69 N. J. Eq. 505, 61 Atl. 151;
In re Crawford, i13 N. Y. 366, 21
N. E. 142; May’s Appeal, 41 Pa. St.
512; Lee v. McFarland, 19 Tex. Civ.
App. 292, 46 S. W. 281.

55 Keniston .v. Adams, 80 Maine
290, 14 Atl. 203; Kimball v. Story,
108 Mass. 382; Zabriskie v. Huyler,
62 N. J. Eq. 697, 51 Atl. 197; Brokaw
v. Hudson, 27 N. J. Eq. 135.

56 Keniston v. Adams, 80 Maine
290, 14 Atl. 263; Zabriskie v. Huyler,
62 N. J. Eq. 697, 51 Atl. 197.

57 Kimball v. Story, 108 Mass. 382.
€ 312 WILLS 280

but if the gift was in the disjunctive to the beneficiary named
“or his heirs,” the legacy will not lapse.**

Where a gift is made to depend for its operation on the hap-
pening or not happening of any other uncertain contingency,
the gift will lapse when the condition fails, unless the will con-
tains suitable provision for substitution or gift over.”

§ 312. Lapse prevented by gift over after gift to a class.—
Gifts over after a gift to a class are made (1) by mak-
ing a substitutional gift, as “to my brothers and sisters upon
the death of my wife, and if any of my brothers and sisters
shall be dead, his or her children shall take his or her part,”
and (2) by a gift in the nature of an original gift, as “to my
brothers and sisters who shall be living at the death of my wife,
and to the issue of such of my brothers and sisters as shall be
then dead.” Either of these methods will prevent a lapse, but
the effect on the gift over resulting from a failure of the pri-
mary gift may not be the same. Under the substitutional method
persons might be excluded who would be included under the orig-
inal method.®° Thus if the testator, under the substitutional
method, make a gift to the children of A, and in a subsequent
clause provide that in case of the death of any one of the chil-
dren of A before the period of distribution, the issue of such
child shall take their parent’s share, such issue can not take un-
less the parent might have taken;** while if the testator, under
the original method, makes a gift to the children of A and then
a gift to the issue of any child of A who may be dead, of the
share which the parent would have taken if living, such issue
will take the gift without reference to when the parent died.”

“88 Wright v. Methodist Episcopal (N. S.) 837, 5 Am. L. Reg. (N. S.).

Church, .Hoffm.. Ch. (N. Y.) 201; 222.

Gittings ve, McDermott, 2 Myl. & K. 61 Outcalt v. Outcalt, 42 N. J. Eq.

€9.5 2, : 500, 8 Atl. 532; In re Crawford, 113
39 See ch. 30. _ N. Y. 366, 21 N. E. 142; Roundtree
60 Martin v. Holgate, L.R.1H.L. v. Roundtree, 26 S, Car. 450, 2 S. E.

Rep.. 175, 35 L. J. Ch. 789, 15 W. R. 474.

135; Lanphier v. Buck, 2 Drew. & 62 Teed v. Morton, 60 N. Y. 502;

Sm. 484, 34 L. J. Ch. 650, 11 Jur. In re Chapman, 32 Beav. 382, 9 Jur.
. (N. S.) 657, 11 W. R. 578.
281 LAPSE—-METHODS OF PREVENTING § 313

Under the form of a substitutional gift, the substituted lega-
tee must point out the original legatee in whose place he claims
to stand.** The issue of members of the class who die after
the date of the will take by substitution to the exclusion of the
issue of those who died prior to such date.°* Under the form
of an original gift, it is not necessary that such issue survive
their own parents in order to take;® but tinder the substitutional
form of gift, such survivorship is necessary, otherwise there
would be a substitution of dead persons for living ones.*

§ 313. Lapse prevented by residuary clause.—As a gen-
eral rule, a lapsed or void legacy or devise will pass by a gen-
eral residuary clause.’ It has been held in some jurisdictions,
however, that lapsed devises pass to heirs, and lapsed legacies
go to the residue, as at common law,® and in Kentucky, by
statute, lapsed legacies and lapsed devises both pass as intestate
property rather than under a general residuary clause.”

A lapse of part of the residue by death of one of the residuary
legatees taking as tenants in common will not go to the other
residuary legatees, but will go as intestate property in the ab-
sence of substitution by the will or by force of a statute pre-

638 Christopherson v. Naylor, 1
Merv. 319.

64 Ruddell v. Wren, ‘208 Ill. 508, 70
N. E. 751; Dunn v. Corey, 56 N. J.
Eq. 507, 39 Atl. 368; In re Devoe,
66 App. Div. 1, 72 N. Y. S. 962; In
re Morrison’s Estate, 139 Pa. St. 306,
20 Atl. 1057.

65In re Smith, 7 Ch. Div. 665, 47
L. J. Ch. 265, 26 W. R. 418.

66 Haszard v. Haszard, 19 R. I.
374, 34 Atl. 150; Hurry v. Hurry,
L. R. 10 Eq. 346, 39 L. J. Ch. 824,
22 L. T. Rep. (N. S.) 577, 18 W. R.
829.

67 Hughes v. Allen, 31 Ga. 483;

Drew v. Wakefield, 54 Maine 291;
Dexter v. Harvard College, 176 Mass.
192, 57 N. E. 371; Lewis v. Lusk, 35
Miss. 401; Tindall v. Tindall, 23 N.
J. Eq. 244; Morton v. Woodbury, 153
N. Y. 243, 47 N. E. 283; Hastings
v. Earp, 62 N. Car. 5; In re Gray’s
Estate, 147 Pa. St. 67, 23 Atl. 205;
In re Reynolds, 20 R. I. 429, 39 Atl.
896.

68 Johnson v.' Holifield, 82 Ala. 123,
2 So. 753; In re Miner’s Will, 146
N. Y. 121, 40 N. E. 788; Massey’s
Appeal, 88 Pa. St. 470.

69 Stockwell v. Bowman, 67 S. W.
379, 23 Ky. L. 2304.
§ 313 WILLS 282

venting lapse.” It becomes important, therefore, to safeguard
a residuary clause against lapse by proper words of substitu-
tion.”

70 Bendall v. Bendall, 24 Ala. 295, Harrington v. Pier, 105 Wis. 485, 82
60 Am. Dec. 469; Canfield v. Can- N. W. 345, 50 L. R. A. 307, 76 Am.
field, 62 N. J. Eq. 578, 50 Atl. 471, St. 924. ‘
7 Prob. Rep. Ann. 202; In re Whit- 71 See post, ch. 30, art. 14,
ing, 33 Misc. 274, 68 N. Y. S. 733;
CHAPTER XVII

CHARGING SPECIFIC PROPERTY WITH PAYMENT OF DEBTS
AND LEGACIES

SECTION SECTION

320. Legacies and debts payable out 325. Charging debts and legacies upon
of personalty. personal property specifically

321. Express charge of legacies upon bequeathed.

realty. 326. Effect of residuary clause blend-
322. Implied charge of legacies upon ing realty and personalty.
realty. 327. Exoneration of personalty from

323. Charging realty with payment of liability for debts and legacies.

annuity or support.

324. Charging real estate specifically
devised with payment of debts
and legacies.

§ 320. Legacies and debts payable out of personalty.—
The general rule is that the personal estate of the testator sup-
plies the fund out of which legacies and debts are to be paid,
unless it clearly appears from the will that the testator intended
otherwise.t In the absence of anything in the will to indicate
an intention on the part of the testator that a legacy shall be
charged upon the real-estate, or paid out of the proceeds thereof,
and there is a deficiency in the personalty, the legacy abates in
whole or in part.?, Such was the rule of the common law, and
such is still the rule where not changed by statute.®

§ 321. Express charge of legacies upon realty.—A testa-
mentary charge upon real estate may be made by the testator

1Davidson v. Coon, 125 Ind. 497,
25 N. E. 601, 9 L. R. A. 584; Dun-
can v. Wallace, 114 Ind. 169, 16 N.
E. 137; McQueen v. Lilly, 131 Mo.
9, 31 S. W. 1043; Geiger v. Worth,
17 Ohio St. 564.

2 Wentworth v. Read, 166 Ill. 139,

46 N. E. 777; McQueen v. Lilly, 131
Mo. 9, 31 S. W. 1043; Bevan v.
Cooper, 72 N. Y. 317; Lee v. Lee,
88 Va. 805, 14 S. E. 534.

3 Newsom v. Thornton, 82 Ala. 402,
8 So. 261, 60 Am. Rep. 743; Hoyt
v. Hoyt, 69 N. H. 303, 45 Atl. 138;

283
§ 321 WILLS 284
either by express direction to that effect contained in the will,
or the intention thus to charge it may be implied from the whole
will taken together.*

An endless variety of expressions have been employed to
charge real estate with the payment of debts and legacies, and
whether there is such a charge in any particular case depends
upon the intention of the testator, to be determined by a con-
sideration of the whole will. Where a long course of decisions
have established a particular meaning as belonging to particular
expressions used to charge real estate with the payment of debts
and legacies, the use of such expressions for the purpose is ad-
visable. Thus it has been held that a gift of testator’s estate,
“after” a certain legacy is paid, charges such legacy upon the
real estate.> Also a specific direction to take a certain sum “out”
of the real estate devised to a named devisee creates a charge
on such real estate.°

A charge upon real estate is clearly created by a provision in
the will that certain property, part of which is realty, is “to be
used for the payment of my debts.”” Examples of expressions
‘which have been construed as creating a charge upon real es-
tate will be found in the reported cases,* and among the forms
hereinafter given.°

Brill v. Wright, 112 N. Y. 129, 19
N. E. 628, 8 Am. St. 717; Allen v.
Mattison (R. 1), 39 Atl. 241.

4Heslop v. Gatton, 71 Ill. 528;
Nash v. Taylor, 83 Ind. 347; Quinby
v. Frost, 61 Maine 77; Reynolds v.
Reynolds, 16 N. Y. 257; Dickerman
v. Eddinger, 168 Pa. St. 240, 32 Atl,
41; Gilbert’s Appeal, 85 Pa. St. 347;
Webster v. Wiggin, 19 R. I. 73, 34
Atl. 990,

5 Atmore v. Walker, 46 Fed. 429;
Cunningham v. Cunningham, 72 Conn.
253, 44 Atl. 41; Davidson v. Coon,
125 Ind. 497, 25 N. E. 601,9 L. R.
A. 584; McQueen v. Lilly, 131 Mo.

9, 31 S. W. 1043; Smith v. ‘Cairns,
92 Tex. 667, 51 S. W. 498.

*In re Roberts’ Estate, 163 Pa. St.
408, 30 Atl. 213; Albright v. Albright,
128 Pa. St. 381, 18 Atl. 490,

7 Watts v. Watts, 38 Ohio St. 480.

8 Buchanan v. Lloyd, 88 Md. 642,
41 Atl. 1075; Bakert v. Bakert, 86
Mo. App. 83; In re Walters’ Estate,
197 Pa. 555, 47 Atl. 862; Smith v.
Cairns, 92 Tex. 667, 51 S. W. 498;
Todd v. McFall, 96 Va. 754, 32 S.
E. 472; Hawkes v. Slight, 110 Wis.
125, 85 N. W. 721.

9 See post, ch. 30, § 680.
285 CHARGING PROPERTY WITH DEBTS AND LEGACIES § 322

§ 322. Implied charge of legacies upon realty.—Legacies
may be charged upon real estate without the use of express
words where an intention on the part of the testator to so charge
his real estate is clearly manifested by the whole will.*° A di-
rection in the will to pay a legacy without sacrificing the real
estate if possible, impliedly charges the real estate with such
payment.** Also a charge is impliedly created on real estate by
a power created by the will to sell the real estate for the purpose
of paying a legacy bequeathed ;** and a direction to executors
or trustees to pay an annuity during the life of the beneficiary
impliedly charges such annuity upon the testator’s entire estate.*®

Where a testator has no personal property at the time he ex-
ecutes a will and bequeaths specific legacies, the reasonable pre-
sumption is that he intended to charge them upon the land, for
it is not to be presumed that he did no more than make an empty
show of giving a bounty to the legatee. But this presumption
does not prevail where there is personal estate at the time the
will was executed, although it may subsequently be lost to the
testator.1* But some courts hold that the mere fact that the
testator’s personalty is insufficient to pay the legacies in full,
does not of itself show an intention to charge the legacies upon
the realty."

10 Sistrunk v. Ware, 69 Ala. 273;
Miller v. Cooch, 5 Del. Ch. 161; Reid
v. Corrigan, 143 Ill. 402, 32 N. E.
387; Davidson v. Coon, 125 Ind. 497,
25 N. E. 601, 9 L. R. A. 584; Thissell
v. Schillinger, 186 Mass. 180, 71 N.
E. 300, 9 Prob. Rep. Ann. 290; Smith
v. Jackman, 115 Mich. 192, 73 N. W.
228; Perkins v. First Nat. Bank, 81
Miss. 358, 33 So. 18; McQueen v.
Lilly, 131 Mo. 9, 31 S. W. 1043;
Price v. Price, 52 N. J. Eq. 326, 29
Atl. 679; Irwin v. Teller, 188 N. Y.
25, 80 N. E. 376; Dickerman v. Ed-
dinger, 168 Pa. St. 240, 32 Atl. 41.

11 Price v. Price, 52 N. J. Eq. 326,
29 Atl. 679.

12 Clark v. Marlow, 149 Ind. 41, 48
N. E. 359; Stevens v. Flower, 46 N.
J. Eq. 340, 19 Atl. 777; Dean v.
Loewenstein, 6 Ohio C. C. 587, 3 Ohio
C. D. 597; In re Blake’s Estate, 134
Pa. St. 240, 19 Atl. 850.

13 Hunt v. Hayes, 19 Ohio C. C.
151, 10 Ohio C. D. 388.

14 Duncan v. Wallace, 114 Ind. 169,
16 N. E. 137; In re Lutz, 157 Mo.
439, 57 S. W. 1018, 50 L. R. A. 847.

15 Bishop v. Howarth, 59 Conn. 455,
22 Atl. 432; Golder v. Chandler, 87
Maine 63, 32 Atl. 784; Lawton v.
Fitchburg Sav, Bank, 160 Mass. 154,
35 N. E. 670; Turner v. Gibb, 48 N.
J. Eq. 526, 22 Atl. 580,
§ 323 WILLS 286

§ 323. Charging realty with payment of annuity or sup-
port.—Real estate may be charged by will with the payment
of an annuity,’® or the support of some person other than the
owner.** But a provision in a will for the support of the widow
or others out of the estate or some portion of the property does
not ordinarily give such widow or other person any title to any
portion of the property even though a particular part thereof
is charged with the performance of the obligation.** Such pro-
visions usually constitute mere equitable liens in favor of the
person entitled to the support or annuity and are enforcible
against the executor, testamentary trustee, residuary devisee or
other person in possession of the estate as a trust obligation.*®

A mere recommendation or request that the devisee shall sup-
port and care for another does not: impose a charge on the realty
devised, nor upon the devisee individually.2° Where the care
contemplated by a direction in the will is in the nature of per-
sonal attention merely, and can not be complied with by the pay-
ment of a sum of money to another, the charge is personal to
the devisee and is not a charge upon the real estate.** On the
other hand, if the direction to support another is imperative,
the real estate is charged with the support.** The question
whether a person entitled to support under the terms of a will
is entitled to an allowance of money for that purpose is one

16 Gallaher v. Herbert, 117 Ill. 160,
7 N. E. 511; Merritt v. Bucknam, 78
Maine 504, 7 Atl. 383; Glenn v. Spry,
5 Md. 110; Hines v. Hines, 95 N.
Car. 482; In re Pierce’s Estate, 56
Wis. 560, 14 N. W. 588; In re Tuck-
er, L. R. (1893) 2 Ch. 323.

17 Bell v. Watkins, 104 Ga. 345, 30
S. E. 756; Commons v. Commons,
115 Ind. 162, 16 N. E. 820, 17 N. E.
271; Donnelly v. Edelen, 40 Md. 117;
Outland v. Outland, 118 N. Car. 138,
23 S. E. 972; Dickson v. Field, 77
Wis. 439, 46 N. W. 668,9 L. R. A.
537;

18 Farnam v. Farnam, 83 Conn. 369,

77 Atl. 70; Gross v. Sheeler, 7 Houst.
(Del.) 280, 31 Atl. 812.

19 In re Simons’ Will, 55 Conn, 239,
11 Atl. 36; Whitehead v. Park, 53
Ga. 575; Blair v. Blair, 82 Kans. 464,
108 Pac. 827; Wiegand v. Woerner,
155 Mo. App. 227, 124 S. W. 596;
Alexander v. Thompson, 38 Tex. 533.

20 Perdue v. Perdue, 124.N. Car.
161, 32 S. E. 492.

21 South Mahoning Tp. v. Marshall,
138 Pa. St. 570, 21 Atl. 79.

22 Bell v. Watkins, 104 Ga. 345, 30
S. E. 756; Clark v. Marlow, 149 Ind.
41, 48 N. E. 359; Crossett v. Clements
(Miss.), 7 So. 207; Outland v. Out-
land, 118 N. Car. 138, 23 S. E. 972.
287 CHARGING PROPERTY WITH DEBTS AND LEGACIES § 324
of construction upon consideration of the whole will in the light

of surrounding circumstances.*

§ 324. Charging real estate specifically devised with pay-
ment of debts and legacies.—In order to charge real estate
specifically devised with the payment of debts and legacies the
will must contain an express provision to that effect, or the
charge must be clearly and unmistakably implied from the whole
will, read in the light of all the surrounding circumstances.”*
Thus a charge may be expressly created by the use of the word
“charge,” or by a devise to A “on condition that” he pay a cer-
tain debt or legacy.”°

Also an intention to charge the real estate devised may be
implied from the fact that, in the same clause with a devise of
the land, there is a direction to the devisee to pay a debt or a
legacy.** But the use of general words directing the payment
of debts does not usually have the effect of charging the debts
on land specifically devised, such words being found in most
wills, and being merely a direction for the doing of what the

law compels.”

A residuary clause, blending realty and personalty, does not

23 Colton v. Colton, 127 U. S. 300,

32 L. ed. 138, 8 Sup. Ct. 1164; Willett
v. Carroll, 13 Md. 459; Crocker v.
Crocker, 11 Pick. (Mass.) 252; Loom-
is v. Loomis, 35 Barb. (N. Y.) 624;
Block v. Mauck (Tenn. Ch. App.),
52 S. W. 689; McCreary v. Robin-
son, 94 Tex. 221, 59 S. W. 536.
_ 24Hibler v. Hibler, 104 Mich. 274,
62 N. W. 361; Johnson v. Poulson,
32 N. J. Eq. 390; Bevan v. Cooper,
72.N. Y. 317.

25 Sistrunk v. Ware, 69 Ala. 273;
Merritt v. Buckman, 78 Maine 504,
7 Att. 383; Gardenville Permanent
L. Assn. v. Walker, 52 Md. 452; Mc-
Fait’s Appeal, 8 Pa. St. 290; Couch
y. Eastham, 29 W. Va. 784, 3 S. E. 23.

26 Potter v. Gardner, 12 Wheat. (U.
S.) 498, 6 L. ed. 706; Henry v. Grif-
fis, 89 Iowa 543, 56 N. W. 670; Mer-

rill v. Bickford, 65 Maine 118; Bu-
chanan v. Lloyd, 88 Md. 642, 41 Atl.
1075; Thayer v. Finnegan, 134 Mass.
62, 45 Am. Rep. 285; Chase v. Warn-
er, 106 Mich. 695, 64 N. W. 730;
Dudgeon v. Dudgeon, 87 Mo. 218;
Wyckoff v. Wyckoff, 49 N. J. Eq.
344, 25 Atl. 963; Brown v. Knapp,
79 N. Y. 136; Carter v. Warrell, 96
N. Car. 358, 2 S. E. 528, 60 Am. Rep.
420; Yearly v. Long, 40 Ohio St. 27.

27 Harmon v. Smith, 38 Fed. 482;
Starke v. Wilson, 65 Ala. 576; Deck-
er v. Decker, 121 Ill. 341, 12 N. E.
750; White v. Kauffman, 66 Md. 89,
5 Atl. 865; Hamilton v. Smith, 110
N. Y. 159, 17 N. E. 780. But see
Tuohy v. Martin, 2 MacArthur (9
D. C.) 572; Bishop v. Howarth, 59
Conn. 455, 22 Atl. 432,
§ 325 WILLS 288
charge specific legacies upon real estate specifically devised,”*
nor does a charge of legacies in general terms upon all the tes-
tator’s real and personal property show his intention to charge
realty specifically devised ;?® especially where the land specifically
devised was exempted from the operation of a power of sale

of the realty in order to pay the legacy.*°

§ 325. Charging debts and legacies upon personal prop-
erty specifically bequeathed.—Debts and legacies may be
either charged upon personalty generally or upon personalty
specifically bequeathed to another.** Thus where the testator
made a gift of specific property invested in a certain business
“after payment of my debts which are to be paid from said
personal property,” it was held that the property was charged
with the payment of all the testator’s debts.** A specific legacy,
however, is not usually charged with general legacies, unless
such was the intention of the testator.**

§ 326. Effect of residuary clause blending realty and per-
sonalty.—If, after giving certain legacies and making disposi-
tion of specific articles, the testator, by a residuary clause, gives
the remainder of his property to a residuary legatee, he will
be held to have intended in case of a deficiency in personalty
to charge the unpaid legacies upon the realty devised by such

28Jn re Peet’s Estate, 99 Iowa 314,
68 N. W. 705; Phillips v. Clark, 18

Squiers, 154 N. Y. 250, 48 N. E.
509; Woodward v. James, 115 N. Y.

R. I. 627, 29 Atl. 688.

229 Davenport v. Sargent, 63 N. H.
538, 4 Atl. 569; Kitchell v. Young,
46 N. J. Eg. 506, 19 Atl. 729; Worth
v. Worth, 95 N. Car. 239; Phillips
v. Clark, 18 R. I. 627, 29 Atl. 688;
Todd v. McFall, 96 Va. 754, 32 S.
E. 472,

30 Johnson v. Home for Aged Men,
152 Mass. 89, 25 N. E. 44,

31In re Radovich’s Estate, 54 Cal.
540; Wethered v. Safe Deposit &
Trust Co., 79 Md. 153, 28 Atl. 812;
Hale v. St. Paul, 54 Minn. 521, 56
N. W. 63; Coane v. Harned, 51 N.
J. Eq. 554, 26 Atl. 810; Fargo v.

346, 22 N. E. 150; Addeman v. Rice,
19 R. I. 30, 31 Atl. 429; Rock v.
Zimmermann, 25 S. Dak. 237, 126 N.
W. 265; Patten v. Herring, 9 Tex.
Civ. App. 640, 29 S. W. 388.

32 Bishop v. Howarth, 59 Conn. 455,
22 Atl. 432.

83Tn re Neistrath’s Estate, 66 Cal.
330, 5 Pac. 507; Chase v. Davis, 65
Maine 102; Davenport v. Sargent, 63
N. H. 538, 4 Atl. 569; Meis v. Meis
(N. J. Eq.), 35 Atl. 369; Hunter v.
Hunter, 17 Barb. (N. Y.) 25; Glass
v. Dunn, 17 Ohio St. 413; In re Mc-
Mahon’s Estate, 132 Pa. St. 175, 19
Atl. 68,
289 § 327

CHARGING PROPERTY WITH DEBTS AND LEGACIES
residuary clause.** But to effect this the real and personal es-
tate must be blended into one mass by the residuary clause.*°

In some jurisdictions, however, the blending of realty and
personalty into one fund by the residuary clause is not sufficient
to show the testator’s intention to charge the real estate devised
in the residuary clause with the payment of general legacies ;°* ”
but an intention to so charge such real estate may be shown by
extrinsic evidence.*’ Thus proof of the additional fact that the
legacies were largely in excess of the personalty at the time the
will was executed has been held sufficient to show testator’s in-
tention to charge the realty with the payment of the legacies.**

While the blending of realty and personalty into one mass
by the residuary clause has the effect to charge the realty with
the payment of legacies, it does not exonerate the personalty
from their payment, unless such was the intention of the tes-
tator. Payment of the legacies out of the real estate is limited
to any deficiency remaining unpaid after exhausting the per-
sonalty.*?

§ 327. Exoneration of personalty from liability for debts
and legacies.—We have said that the personal estate of the
testator is the primary fund for the payment of debts and leg-
acies.*° But an express or implied charge of the debts or legacies
on the real estate has the effect to exonerate the personalty from

34 Walker v. Atmore, 50 Fed. 644;
Readman v. Ferguson, 13 App. D. C.
60; Reid v. Corrigan, 143 Ill. 402,
32 N. E. 387; American Cannel Coal
Co. v. Clemens, 132 Ind. 163, 31 N.
E. 786; In re Newcomb’s Will, 98
Jowa 175, 67 N. W. 587; Peebles v.
Acker, 70 Miss. 356, 12 So. 248; Mc-
Queen v. Lilly, 131 Mo. 9, 31 S. W.
1043; Carter v. Gray, 58 N. J. 411,
43 Atl. 711; Townsend v. Townsend,
25 Ohio St. 477; In re Dennis’ Es-
tate, 169 Pa. St. 493, 32 Atl 436;
Bird v. Stout, 40 W. Va. 43, 20 S.
E, 852.

35In re Bennett’s Estate, 148 Pa.

19—Tuomp. WILLS.

St. 139, 23 Atl. 1103; Allen v. Mat-
tison (R. I.), 39 Atl. 241, 3 Prob.
Rep. Ann. 428,

36 Pearson v. Wartman, 80 Md. 528,
31 Atl. 446; Morris v. Sickly, 133 N.
Y. 456, 31 N. E. 322.

87 Brill v. Wright, 112 N. Y. 129,
19 N. E. 628, 8 Am. St. 717.

38 Davidson v. Coon, 125 Ind. 497,
25 N. E. 601, 9 L. R. A. 584; Duncan
v. Wallace, 114 Ind. 169, 16 N. E.
137; Briggs v. Carroll, 117 N. Y. 288,
22 N. E. 1054.

39 Miller v. Cooch, 5 Del. Ch. 161.

40 See ante § 320.
§ 327 WILLS 290
their payment. In order to accomplish this, however, the tes-
tator must not only charge the payment of the debts and legacies
‘upon his real estate, but he must also expressly or by necessary
implication direct that the real estate shall be primarily liable and
that the personalty shall be discharged.*

To exonerate personalty the language must clearly show an
intention on the part of the testator that his lands shall be the
primary fund for the payment of debts and legacies.*? Also
‘personalty may be exonerated by a provision that it shall pass
to the legatees free from any charge or contribution for the
payment of debts.” It has been held that where the testator
bequeathed personal property to his widow in lieu of her dower,
such bequest is impliedly exonerated from the payment of
debts.**

41In re Woodworth’s Estate, 31
Cal. 595; Bishop v. O’Connor, 69 III.
431; Hayes v. Sykes, 120 Ind. 180,
21 N. E. 1080; Mitchell v. Mitchell,
3 Md. Ch. 71; Stevens v. Underhill,
67 N. H. 68, 36 Atl. 370; Miller v.
Harwell, 3 Murph. (N. Car.) 194;
Deering & Co. v. Kerfoot, 89 Va.
491, 16 S. E. 671.

42 Young v. Young, 26 Beav. 522.

43 Fargo v. Squiers, 154 N. Y. 250,
48 N. E. 509; Woodward v. James,
115 N. Y. 346, 22 N. E. 150; Adde-
man v. Rice, 19 R. I. 30, 31 Atl.
429; Patten v. Herring, 9 Tex. Civ.
App. 640, 29 S. W. 388.

44 Calder v. Curry, 17 R. I. 610, 24
Atl. 103.
CHAPTER XVIII

TESTAMENTARY TRUSTS

SECTION SECTION
335. Testamentary trusts defined and 347. Time from which income is to
distinguished. be estimated.
336. Essentials of a testamentary 348. Alienation or assignment of in-
trust. come by anticipation.
337. Purposes of testamentary trusts. 349. Application or payment of in-
338. Words creating testamentary come.
trust. 350. Who may be a trustee.
339. Trusts by precatory words. 351. Title or interest of trustee.
340. Intention of testator to create a 352. Who may be a cestui que trust.
trust. 353. Estate or interest of cestui que
341. Trusts implied from context of trust.
will. 354, Trust created for benefit of
342. Trusts ex maleficio. married woman.
343. Passive and active trusts. 355. Effect of provisions for mainte-
344. What property may be subject nance, support and education.
of trust. 356. Rights of creditors respecting
345. What constitutes income from trust funds.
trust property. 357. Duration of trust term.
346. Trusts for the accumulation of 358. Termination of the trust.
income, 359. Effect of failure of purpose of
trust.

§ 335. Testamentary trusts defined and distinguished.—
A trust is the general name applied to the relation between two
persons, by virtue of which one of them, as trustee, holds property
for the benefit of the other, the cestui que trust. In this chapter
it is proposed to treat of trusts created by will as distinguished
from trusts created by deed or declaration of trust, executed, de-
livered and taking effect during the lifetime of the maker.

In a testamentary trust, the legal title to the property devised
or bequeathed is in one who is known as the trustee; while the’
equitable right, title, or interest in the property is in another who
is known as the cestui que trust. During the existence of the
trust relation the legal title is separated from the equitable. The

291
§ 336 WILLS 292

distinction between a power created by will and a trust so created
has been clearly defined by the courts. The Supreme Court of the
United States says: “One of the tests as to a trust or a power is
that a naked power to sell may be exercised or not by executors,
and is discretionary, while an imperative direction to sell and dis-
pose of the proceeds is a power coupled with a trust.’’* In the
nature of things, there is a wide distinction between a power and
a trust. In the former, the party may or may not act in his dis-
cretion; in the latter, the trust will be executed, notwithstanding
his omission to act.*

A charge on real estate is distinguished from a trust thereof, in
that in case of the former the real estate is devised generally for
the beneficial enjoyment of the devisee, subject, however, to the
payment by him of a sum of money or the performance of a duty,
while in the case of a trust the devise is limited to some particular
purpose, with no beneficial interest in the devise.*

An estate in trust created by will is distinguished from an
estate upon condition subsequent in that in the former the proper
persons to secure the performance of the trust are not the heirs of
the testator, but the beneficiaries of the trust property, while in
the latter estate the breach of the condition gives the testator and
his heirs, or perhaps his devisees, a right of entry on the land,
which is the legal right, enforcible only in an action at law.*

As a general rule, any person having capacity to make a will
disposing of the legal estate in his property may create a trust.®

§ 336. Essentials of a testamentary trust.—To constitute
a trust there must be a concurrence of (1) words sufficient to
raise it, (2) a certain subject and (3) a definite object.° By this
is meant sufficient language to sever the legal from the equitable
estate, and to clearly identify the beneficiaries and the property

1Taylor v. Benham, 5 How. (U. 5 Reiff v. Horst, 52 Md. 255; Skeen
S.) 233, 12 L. ed. 130. y. Marriott, 22 Utah 73, 61 Pac. 296.
2Chew v. Hyman, 7 Fed. 7, 10 ® Coulson v. Alpaugh, 163 Ill. 298,
Biss. 240. 45 N. E. 216; Mills v. Newberry, 112
® Lang v. Everling, 3 Misc. 530, 23 Ill. 123, 1 N. E. 156, 54 Am. Rep.
N. Y. S. 329, 52 N. Y. St. 489. 213; Hill v. Page (Tenn.), 36 S. W.
4 Stanley v. Colt, 5 Wall. (U. S.) 735.
119, 18 L. ed. 502.
293 TESTAMENTARY TRUSTS § 337

out of which the trust is to take effect. The testator should, in
express terms, give the legal title to the property to the trustee,
and the equitable interest to the cestui que trust and expressly
provide for a term, within the period allowed by law, when the
trust must terminate.’ The testator should clearly set forth the
purpose for which the trust is created in order that a court of
equity can enforce his wishes.* It might be suggested that the
designation of a competent trustee, while not essential, is always
advisable.

§ 337. Purposes of testamentary trusts—Where a testa-
tor, who desires to create a trust, is not fully informed of what a
trust really implies, he should not attempt its creation without the
advice of competent counsel. Good reasons may exist for not
creating a trust, and the testator’s real intention would be as well
carried out and the parties in interest would fully enjoy the testa-
tor’s bounty if the gift were an absolute one. However, in many
cases it may be advisable to create a trust, and cases constantly
arise which make the creation of a trust almost imperative. Such,
for example, if the testator have a son who is dissipated, a spend-
thrift, or is incapable of managing his own affairs.°

Also, where the testator wishes to make a gift to a married
woman domiciled in a foreign state or country, the laws of which
state or country give her only a limited interest in property be-
queathed to or acquired by her, it may be advisable to create a
trust in her favor. The trust in such case will, of course, be gov-
erned by the laws of the testator’s domicil, and he may provide
for the disposition of the principal by power of appointment to be
exercised by her.*°

If the testator has a married daughter whose husband is un-
trustworthy, he may create an active trust for her benefit, and

7 Coit v. Comstock, 51 Conn. 352; 9In re L’Hommedieu, 138 Fed.
Piper v. Moulton, 72 Maine 155; 606; Parker v. Wilson, 98 Ark. 553,
Bates v. Bates, 134 Mass. 110. 136 S. W. 981; Aldrich v. Barton, 153

8 Coulson v. Alpaugh, 163 Ill, 298, Cal. 488, 95 Pac. 900; Hamilton v.
45 N. E. 216; Tilden v. Green, 130 N. Downs, 33 Conn. 211.

Y. 29, 28 N. E. 880, 14 L. R. A. 33, 27 10 Richardson v. Stodder, 100
Am. Rep. 487; Beurhaus v. Water- Mass. 528,
town, 94 Wis. 617, 69 N. W. 986.
294

§ 338 WILLS

thus protect her from the influence and importunity of her hus-
band. Various other objects can be accomplished by a trust,
among which are: support for minors and incompetents, estab-
lishment of charities, grant annuities, pay debts, and the like. In
some jurisdictions it has been held that trusts may be created for
the purpose and with full power to continue the testator’s busi-
ness.**

So, also, a trust may be created to continue the administration
of the estate beyond the time allowed by statute so as to protect
the property from sacrifice or forced sale. In fact, the formation
of a trust, is the most effective mode of continuing the control of
the testator over his property after his death, and so long as its
purpose is not against public policy or in violation of a statute,
he may create an active express trust for any purpose he deems
wise and expedient.”

The trust must of course be a lawful trust particularly as re-
lates to the statutes of the state governing testamentary trusts.
Hence the necessity of consulting the statutes of the testator’s
domicil before attempting to create a testamentary trust.

§ 338. Words creating testamentary trust—To create a
good testamentary trust a high degree of care and skill on the
part of the draftsman is required. While no particular or tech-
nical words are required to create a testamentary trust, the words
used for that purpose must clearly show an intention on the part
of the testator to give to one the legal interest in the property de-
vised, and to another the equitable interest in the same property.**

There must concur sufficient words or acts to show an unequiv-
ocal intention to devote the subject-matter to the object of the

41Thorn v. De Breteuil, 86 App. v. Cogswell, 192 Mass. 79, 78 N. E.

Div. 405, 83 N. Y. S. 849.

12 Link v. Link, 90 N. Car. 235; In
re Spring, 216 Pa. St. 529, 66 Atl. 110.

13Tn re Heywood’s Estate, 148 Cal.
184, 82 Pac. 755; Hughes v. Fitzger-
ald, 78 Conn. 4, 60 Atl. 694; Quinn v.
Shields, 62 Iowa 129, 17 N. W. 437,
49 Am. Rep. 141; Patrick v. Patrick,
135 Ky. 307, 122 S. W. 129; Robinson

389; Pembroke Academy v. Epsom
School Dist. 75 N. H. 408, 75 Atl.
100, 37 L. R. A. (N. S.) 646; Close v.
Farmers’ L. & T. Co., 195 N. Y. 92,
87 N. E. 1005; Haywood v. Wright,
152 N. Car. 421, 67 S. E. 982; In re
Nevins’ Estate, 192 Pa. St. 258, 43
Atl. 996; Holmes v. Walter, 118 Wis.
409, 95 N. W. 380, 62 L. R. A. 986.
295 TESTAMENTARY TRUSTS § 339

trust; the subject-matter must be definite in character and so at
the disposal of the settler as to enable him to devote it to the ob-
ject of the trust; and this object must be one that is lawful, cer-
tain, and ascertained.**

The words “trust” and “trustee,” though effective in creating
a trust, are not necessary.*° Thus it has been held that a devise
of land to an executor, with directions to sell the same and dis-
tribute the proceeds among beneficiaries named, creates a trust,
although the will fails to expressly declare the executor to be a
trustee.** It is sufficient if the will as a whole shows a purpose
of creating a trust though no special words be used.**

If the testator has named a person in his will and has directed
such person to carry out the provisions made for others therein,
and the person thus named can not execute such provisions of the
will, except the legal title to the property shall be vested in him as
trustee, then that person will be a trustee by implication, though
there may have been no direct gift of the legal title to him and
the word “trustee” or “trust”’ was not used.’® It is sufficient if
it clearly appears from the terms of the will that it was the inten-
tion of the testator to create a trust for a lawful purpose and for
the management of the estate. The manner in which the trust is
imposed is not material, provided the intention can be clearly
gathered from the will.*®

§ 339. Trusts by precatory words.—Where a testator de-
sires his devisee or legatee to benefit some third person out of
the estate given, he frequently expresses his desire by words of
entreaty, expectation, request, recommendation, hope, wish, de-
sire, and the like, rather than by words of command. Such
expressions in wills are termed “precatory words,” and they

14Lines v. Darden, 5 Fla. 51; In 16 Plant v. Donaldson, 39 App. D.
re Soulard’s Estate, 141 Mo. 642, 43 C. 162.
S. W. 617; In re Smith’s Estate, 144 17 Ryder v. Lyon, 85 Conn. 245, 82
Pa. St. 428, 22 Att. 916, 27 Am. St. Atl. 573.
641. 18In re Reith, 144 Cal. 314, 77 Pac.
15 Hughes v. Fitzgerald, 78 Conn. 4, 942.
60 Atl. 694; Patrick v. Patrick, 135 19In re Cooper’s Estate, 150 Pa.
Ky. 307, 122 S. W. 159. St. 576, 24 Atl. 1057, 30 Am. St. 829.
§ 339 WILLS 296

have often been held sufficient to create a trust in favor of the

_ person or object sought to be benefited. The real question to be

determined in such case is whether, looking at the entire context
of the will, the testator intended to impose an obligation on the
legatee or devisee to carry out his wishes, or intended to leave it
to the legatee or devisee to act on them or not, at his discretion.*°
Where the first taker has the absolute power of disposal, -or own-
ership, or where a clear discretion and choice to act, or not, is
given equity will not construe a trust from the language em-
ployed.*

/There is a simple, sure, and familiar form of devise or bequest
to raise a trust, which consists of a gift to the devisee or legatee
in trust for the beneficiary, and a failure to use it indicates an in-
tention to avoid the creation of a trust. Words of desire, request,
recommendation, or confidence in a will, addressed by a testator
to a legatee whom he has the power to command, create no trust
in favor of the parties recommended, unless (1) the intention of
the testator to make the desire, request, recommendation, or con-
fidence imperative upon the legatee, so that he shall.have no op-
tion to comply or to refuse to comply with it, clearly appears from
the whole will and the relation and circumstances of the testator
when it was made, (2) unless the subject-matter of the wish or
recommendation is certain, and (3) unless the beneficiaries are
clearly designated. When these three conditions exist, a preca-
tory trust may be raised.”

It is a settled doctrine of courts of chancery that a devise or

20 Burnes v. Burnes, 137 Fed. 781;
Kauffman v. Gries, 141 Cal. 295, 74
Pac. 846; Seymour v. Sanford, 86
Conn. 516, 86 Atl. 7; Hughes v. Fitz-
gerald, 78 Conn. 4, 60 Atl. 694; Bryan
v. Milby, 6 Del. Ch. 208, 24 Atl. 333,

13 L. R. A. 563; Hartman v. Arm-

strong, 59 Kans. 696, 54 Pac. 1046;
Murphy v. Caslin, 113 Mo. 112, 20 S.
W. 786, 35 Am. St. 699; Hunt v.
Hunt, 11 Nev. 442; Weller v. Weller,
22 Tex. Civ. App. 247, 54 S. W. 652.
21McDufhe v. Montgomery, 128
Fed. 105; Giles vy. Anslow, 128 Ill.

187, 21 N. E. 225; Fullenwider v.
Watson, 113 Ind. 18, 14 N. E. 571;
Bills v. Bills, 80 Iowa 269, 45 N. W.
748, 8 L. R. A. 696, 20 Am. St. 418;
Bowen v. Dean, 110 Mass. 438; Clay
v. Wood, 153 N. Y. 134, 47 N. E. 274.

22 Burnes v. Burnes, 137 Fed. 781;
Colton v. Colton, 127 U. S. 300, 32
L. ed. 138, 8 Sup. Ct. 1164; Lines v.
Darden, 5 Fla. 51; Hunter v. Stem-
bridge, 12 Ga. 192; Peake v. Jamison,
6 Mo. App. 590; Smullin vy. Wharton,
73 Nebr. 667, 103 N. W. 288, 106 N.
W. 577, 112 N. W. 622, 113 N. W. 267.
297 TESTAMENTARY TRUSTS § 340

bequest to one person accompanied by words expressing a wish,
entreaty, or recommendation that he will apply it to the benefit of
others, may be held to create a trust, if the subject and the objects
are sufficiently certain. It must appear that the words were in-
tended by the testator to be imperative, and, when property is
given absolutely and without restriction, a trust is not tobe lightly
imposed upon mere words of recommendation or confidence.”
Courts are not so astute as they formerly were to imply a trust
from certain words, but are more inclined to find in the words
the mere statement of a motive for the devise, or the vesting of a
discretion in the devisee,* and it is well settled that the words
used must be essentially imperative in their character to create a
trust.** Thus where a will provided as follows: “I give tomy wife,
A.C. P., all the rest of my estate, whatever the same may be, to
be at her sole use and disposal. My said wife is fully acquainted
with my reasons for this disposal of my estate, and will by her
own last testament do what is right and just to my children and
their natural heirs.” The court said: “The last words do not cre-
ateatrust. They express the testator’s confidence that his wife will
do what is just of her own motion, as a reason why he leaves the
property to her unfettered disposition.””* It follows from what
we have said, that in attempting to create a trust by will, all preca-
tory language and words of recommendation and confidence
should be avoided. The better method is to make the gift to the
devisee or legatee an absolute one, with the wish that he will dis-
pose of the same conformably to an oral or written request en-
tirely independent of the will.*”

§ 340. Intention of testator to create a trust.—In order
that a testator may create a trust he must adequately indicate his
intention to do so by the use of appropriate language, and not

23 McDuffie v. Montgomery, 128 25 Bristol v. Austin, 40 Conn. 438;
Fed. 105; Bristol v. Austin, 40 Conn. Hayes v. Hayes, 242 Mo. 155, 145 S.
438; Hayes v. Hayes, 242 Mo. 155, W. 1155.

145 S. W. 1155. 26 Sturgis v. Paine, 146 Mass. 354,

24Toland v. Toland, 123 Cal. 140, 16N. E. 21.

55 Pac. 681; Pierce v. Phelps, 75 27 See post, ch. 30, art. 16.
Conn. 83, 52 Atl. 612; Small v. Field,
102 Mo. 104, 14 S. W. 815.
§ 340 WILLS 298
leave such intent to implication. The fact that he‘designates the
purpose for which a legacy or devise may be used does not neces-
sarily indicate an intention to create a trust ;* nor does the mere
expression of his motive in making the gift indicate such inten-
tion?” Even where the words used are sufficient to show an -in-
tention on the part of the testator to create a trust, if there is un-
certainty as to the beneficiaries or the objects to be benefited, or
in the subject-matter to be affected, a trust will not arise.*° The
intention of the testator to create a trust is to be gathered in each
case from the general purpose and scope of the will.** While an
intention on the part of the testator to create a trust, though not
expressly stated, will be inferred from the context of the whole
will, yet it is always advisable to provide in connection with the
gift to the trustee that it is “in trust” for certain purposes speci-

fied in the will.”

28 Randall v. Randall, 135 Ill. 398,
25 N. E. 780, 25 Am. St. 373; In re
Bogart’s Will, 43 App. Div. 582, 60
N. Y. S. 496.

22 Williams v. Baltimore Baptist
Church, 92 Md. 497, 48 Atl. 930, 54
L. R. A. 427; Aldrich v. Aldrich, 172
Mass. 101, 51 N. E. 449; Elkinton v.
Elkinton (N. J. Eq.), 18 Atl. 587;
Baker v. Baker, 53 W. Va. 165, 44 S.
E, 174.

30 Angus v. Noble, 73 Conn. 56, 46
Atl, 278; Lines v. Darden, 5 Fla. 51;
Coulson v. Alpaugh, 163 Ill. 298, 45
N. E, 216; Allen v. McGee, 158 Ind.
465, 62 N. E. 1002; Webster v.
Wathen, 97 Ky. 318, 30 S. W. 663, 17
Ky. L. 32; Dufour v. Deresheid, 110
La. 344, 34 So. 469; Pratt v. Shep-
pard & Enoch Pratt Hospital, 88 Md.
610, 42 Atl. 51; Cowley v. Twombly,
173 Mass. 393, 53 N. E. 886, 46 L. R.
A. 164; Smullin v. Wharton, 73 Nebr.
667, 103 N. W. 288, 106 N. W. 577,
112 N. W. 622, 113 N. W. 267; Condit
v. Reynolds, 66 N. J. L. 242, 49 Atl.

540; Murray v. Miller, 178 N. Y. 316,
70 N. E. 870; Chase v. Isherwood, 5
Ohio S. & C. Pl. Dec. 1, 1 Ohio N.
P. 31; Ensley v. Ensley, 105 Tenn.
107, 58 S. W. 288; Heidenheimer v.
Bauman, 84 Tex. 174, 19 S. W. 382,
31 Am. St. 29; Sims v. Sims, 94 Va.
580, 27 S. E. 436, 64 Am. St. 772;
Baker v. Baker, 53 W. Va. 165, 44 S.
E. 174; McHugh v. McCole, 97 Wis.
166, 72 N. W. 631, 65 Am. St. 106, 40
L. R. A. 724,

31 Bloom v. Strauss, 73 Ark. 56, 84
S. W. 511; Dee v. Dee, 212 Ill. 338,
72 N. E. 429; Merrill v. Hayden, 86
Maine 133, 29 Atl. 949; Aldrich v.
Aldrich, 172 Mass. 101, 51 N. E. 449;
Clusky v. Burns, 120 Mo. 567, 25 S.
W. 585; Lawrence v. Cooke, 104 N.
Y. 632, 11 N. E. 144; Wilson v. Wil-
son, 17 N. Car. 181; Biddle’s Appeal,
80 Pa. St. 258; Seamonds v. Hodge,
36 W. Va. 304, 15 S. E. 156, 32 Am.
St. 854.

82 See post, ch. 30, art. 16.
299 § 341

TESTAMENTARY TRUSTS

§ 341. Trusts implied from context of will—A trust may
often be implied from the nature of the powers granted or duties
imposed by the will.** Thus a trust will be implied from an ex-
press authorization to the executor to pay certain annuities, as
this would be impossible unless the executor has a trust estate in
the property.** The same result will follow from a provision
giving directions to manage, dispose of, or distribute property
for the benefit of others.**

But a trust must be reasonably certain in its terms as to the
property embraced in the trust, the beneficiaries, the nature of
the estate they are to have, and the manner in which the trust is to
be executed, and, when either of these elements is indefinite or un-
certain, the trust must fail.2° A mere. discretion in the trustee
creates a mere power; but an imperative discretion implies a
trust.” The general rule is that, in the absence of an express
provision creating a trust, a trust will be implied where executors
are given duties beyond their ordinary functions as executors.*®

§ 342. Trusts ex maleficio.—Where a testator is induced
to make a will, or not to change one after it is made, by a promise

33 Prince v. Barrow, 120 Ga. 810, 48
S. E. 412; Ingraham v. Ingraham, 169
Ill. 432, 48 N. E. 561, 49 N. E. 320;
Robinson v. Cogswell, 192 Mass. 79,
78 N. E. 389; Barksdale v. Capital
City Realty Co., 88 Miss. 623, 42 So.
668; Woodward v. James, 115 N. Y.
346, 22 N. E. 150; Varner’s Appeal,
80 Pa. St. 140; Woodruff v. Pleas-
ants, 81 Va. 37; Wolbert v. Beard,
128 Wis. 391, 107 N. W. 663.

34 United States Trust Co. v. Ma-
resi, 33 Misc. 539, 68 N. Y. S. 918.

35 Prince v. Barrow, 120 Ga. 810, 48
S. E. 412; Abend v. McKendree Col-
lege, 174 Ill. 96, 50 N. E. 1052; Eik-
man v. Landwehr, 43 Ind. App. 724,
88 N. E. 105; Curd v. Field, 103 Ky.
293, 45 S. W. 92, 19 Ky. L. 2016; Mc-
Clernan v. McClernan, 73 Md. 283, 20
Atl. 908; Robinson v. Cogswell, 192
Mass. 79, 78 N. E. 389; Shanahan v.

Kelly, 88 Minn. 202, 92 N. W. 948;
Norcum v. D’Oench, 17 Mo. 98; Erd-
man v. Meyer, 52 Misc. 256, 102 N.
Y. S. 197; Dulin v. Moore, 96 Tex.
135, 70 S. W. 742; Holmes v. Walter,
118 Wis. 409, 95 N. W. 380, 62 L. R.
A. 986.

36 Smullin v. Wharton, 73 Nebr.
667, 103 N. W. 288, 106 N. W. 577,
112 N. W. 622, 113 N. W. 267.

87Q’Gorman v. Crowly, 80 N. J.
Eq. 101, 83 Atl. 397.

38 Wolffe v. Loeb, 98 Ala.'426, 13
So. 744; Willingham v. Bentley, 20
Ga. 783; Mullanney v. Nangle, 212
Ill, 247, 72 N. E. 385; Codman v.
Brigham, 187 Mass. 309, 72 N. E.
1008, 105 Am. St. 394; Webb v. Hay-
den, 166 Mo. 39, 65 S. W. 760; Brock
v. Sawyer, 39 N. H. 547; Zabriskie v.
Wetmore, 26 N. J. Eq. 18; Close v.
Farmers’ L, & T. Co., 195 N. Y. 92,
§ 342 WILLS 300
express or implied, on the part of a legatee or devisee that he will
devote his legacy or devise to a certain lawful purpose, a secret
trust is created, and equity will compel him to apply the gift thus
obtained in accordance with his promise.*®

‘This trust springs from the intention of the testator and the
promise of the legatee. The same rule applies to heirs and next
of kin who induce their ancestor or relative not to make a will by
promising, in case his property falls to them through intestacy, to
dispose of it, or a part of it, in the manner indicated by him. This
rule is based on the principle that the legacy would not have been
given, or intestacy allowed to ensue, unless the promise had been
made, and, hence, the person promising is bound in equity to keep
it, as to violate it would be fraud.*°

The law, not the will, fastens the trust upon the fund by requir-
ing the legatee to act in accordance with the instructions of the
testator and his own promise.** Equity acts in such case, not be-
cause of a trust created by the testator, but because of the fraud

of the legatee or devisee.**

To uphold such a trust it is necessary to prove that the testator
relied upon the promise or acts of the heir or devisee as an ef-

87 N. E. 1005; Haywood v. Wright,
152 N. Car. 421, 67 S. E. 982; In re
Anck’s Estate, 11 Phila. (Pa.) 118, 33
Leg. Int. 54; Jastram v. McAnslan,
26 R. I. 320, 58 Atl. 952; Seattle v.
McDonald, 26 Wash. 98, 66 Pac. 145.

39 Curdy v. Berton, 79 Cal. 420, 21
Pac. 858, 5 L. R. A. 189, 12 Am. St.
157; Bromley v. Gardner, 79 Maine
246, 9 Atl. 621; Ham v. Twombly,
181 Mass. 170, 63 N. E. 336; Am-
herst College v. Ritch, 151 N. Y. 282,
45 N. E. 876, 37 L. R. A. 305.

40 Cooney v. Glynn, 157 Cal. 583,
108 Pac. 506; Dowd v. Tucker, 41
Conn. 197; Cassels v. Finn, 122 Ga.
33, 49 S. E. 749, 68 L. R. A. 80, 106
Am. St. 91; Larmon v. Knight, 140
Ill, 232, 29 N. E. 1116, 33 Am. St.
229; Ransdel v. Moore, 153 Ind. 393,
53 N. E. 767, 53 L. R. A. 753; Grant

v. Bradstreet, 87 Maine 583, 33 Atl.
165; Glass v. Hulbert, 102 Mass. 24,
3 Am. Rep. 418; Ragsdale v. Rags-
dale, 68 Miss. 92, 8 So. 315, 11 L. R.
A. 316, 24 Am. St. 256; Mead v. Rob-
ertson, 131 Mo. App. 185, 110 S. W.
1095; Smullin v. Wharton, 73 Nebr.
667, 103 N. W. 288, 106 N. W. 577,
112 N. W. 622, 113 N. W. 267; Am-
herst College v. Ritch, 151 N. Y. 282,
45 N. E. 876, 37 L. R. A. 305; Ben-
nett v. Harper, 36 W. Va. 546, 15 S.
E. 143; Brook v. Chappell, 34 Wis.
405.

41De Laurencel v. De Boom, 48
Cal. 581; Dowd v. Tucker, 41 Conn.
197; Ahrens v. Jones, 169 N. Y. 555,
62 N. E. 666, 88 Am. St. 620; Church
v. Ruland, 64’ Pa. St. 432.

42 Q’Hara v. Dudley, 95 N. Y. 403,
14 Abb. N. Cas. 71, 47 Am, Rep. 53.
301

4

TESTAMENTARY TRUSTS

§ 343

fective arrangement for the future disposition of his property ;**
and also fraud on the part of the promisor, as a mere refusal to
perform the trust is not enough; and it must also appear that
there has been a fraudulent agency, active or passive, in procuring

the devise.**
parol evidence.*

Such a trust may be made out or established by

Where no trust or invalidity appears upon the face of the will,
it will be probated and given effect according to its terms, and the
secret trust can only be established through an independent suit
in equity against the legatee or devisee.**

§ 343.

Passive and active trusts.—A passive trust, or dry

trust as it is sometimes called, is one in which the trustee has a
mere legal title, and which, in jurisdictions where the statute of
uses is in force, will be executed so as to vest the entire legal title
in the beneficiary.*7 Where the trustee is given a mere legal title,
with no control over the subject-matter, and no duties to perform,
the trust is passive and is executed in the cestui que trust by the
statute of uses.** Thus a bequest to A to hold personal property,
or a devise to hold the title to real estate, in trust for B, but with
no duties to perform and no estate in remainder or gift over, is a
dry trust, and the court may terminate it.*°

43 Whitehouse v. Bolster, 95 Maine
458, 50 Atl. 240; Laird v. Vila, 93
Minn. 45, 100 N. W. 656, 106 Am. St.
420.

44 Gilpatrick v. Glidden, 81 Maine
137, 16 Atl. 464, 2 L. R. A. 662, 10
Am. St. 245.

45 Manning v. Pippen, 95 Ala. 537,
11 So. 56; Cassells v. Finn, 122 Ga.
33, 49 S. E. 749, 68 L. R. A. 80, 106
Am. St. 91, 2 Ann. Cas. 554; Fisch-
beck v. Gross, 112 Ill. 208; Gaither
v. Gaither, 3 Md. Ch. 158; Williams
w. Vreeland, 29 N. J. Eq. 417.

46 In re Sharp’s Estate, 17 Cal. App.
634, 120 Pac. 1079; Smullin v. Whar-
ton, 73 Nebr. 667, 103 N. W. 288, 106
N. W. 577, 112 N. W. 622, 113 N. W.
267.

47 Russell v. Bates, 181 Mass. 12,
62 N. E. 950; Jones v. Jones, 223 Mo.
424, 123 S. W. 29, 25 L. R. A. (N.
S.) 424; Carter v. Long, 181 Mo. 701,
81°S. W. 162; Hayes v. Tabor, 41 N.
H. 521; Denison v. Denison, 185 N.
Y. 438, 78 N. E. 162; Mims v. Mach-
lin, 53 S. Car. 6, 30 S. E. 585; Hen-
derson v. Adams, 15 Utah 30, 48 Pac.
398; Holmes v. Walter, 118 Wis. 409,
95 N. W. 380, 62 L. R. A. 986.

48 Ringrose v. Gleadall, 17 Cal.
App. 664, 121 Pac. 407; Jones v.
Jones, 223 Mo. 424, 123 S. W. 29, 25
L. R. A. (N. S.) 424.

49 Hill v. Hill, 90 Nebr. 43, 132 N.
W. 738, 38 L. R. A. (N. S.) 198.
§ 344 WILLS 302 |

An active trust is one in which powers or duties are imposed
upon the trustee with reference to the property devised or be-
queathed, in which case it becomes necessary that he should con-
tinue to hold the legal title in order to perform his duty or execute
the power.°° Thus where the trustee is given the duty to care for
the land devised, or pay taxes, or collect rents, or make sale of or

mortgage the land, the trust is active.**

§ 344. What property may be subject of trust.—As a gen-
eral rule every kind of property, real or personal, capable of as-
signment or transfer may be the subject-matter of a trust. Thus
it has been held that a trust may exist in bonds,°? promissory
notes,"* bank deposit,°* growing crop, copyright or patent
right,°® and in fact, any right, interest, or thing which may be the
subject of property may be granted in trust.°?

So, also, a trust may exist in a chose in action, an estate in
expectancy, a contingent interest, an equitable reversionary in-
terest, and even in a possibility.°*

§ 345. What constitutes income from trust property.—
The words generally employed to designate the income from trust
real estate are “rents and profits,” and those to designate the in-
come from trust personal property are “income and profits.” Or-
dinarily, when property is given in trust to pay the “income” to
the cestui que trust, the net income, and not the gross income, is
meant.*® “Net income” as used in a will requiring a trustee to

50 Chicago Terminal T. R. Co. v. 52 Brown v. Harris, 25 Barb. (N.

Winslow, 216 Ill. 166, 74 N. E. 815;
Gerard v. Buckley, 137 Mass. 475;
Webb v. Hayden, 166 Mo. 39, 65 S.
W. 760; Story v. Palmer, 46 N. J.
Eq. 1,18 Atl. 363; Tobias v. Ketchum,
32 N. Y. 319; In re Spring’s Estate,
216 Pa. 529, 66 Atl. 110; Muldoon v.
Trewhitt (Tenn.), 38 S. W. 109,

51 Chicago Terminal T. R. Co. v.
Winslow, 216 Ill. 166, 74 N. E. 815;
Gerard v. Buckley, 137 Mass. 475;
Webb v. Hayden, 166 Mo. 39, 65 S.
W. 760.

Y.) 134.

53 Broughton v. West, 8 Ga. 248.

54 McCarthy v. Provident Sav. Inst.,
159 Mass. 527, 34 N. E. 1073.

55 Mauldin v. Armistead, 14 Ala.
702.

56 Thayer v. Pressey, 175 Mass. 225,
56 N. E. 5.

57 Burke v. Burke, 259 Ill. 262, 102
N. E. 293.

58 Perry Trusts (5th ed.), § 68.

59 Stone v. Littlefield, 151 Mass.
485, 24 N. E, 592; In re Albertson,
§ 346

303 TESTAMENTARY TRUSTS

pay over all the net income derived from the trust estate, means
the income derived from the whole property, less the necessary
expenses in its management, and disbursements incurred on ac-
count thereof; that is, such expenses and disbursements as taxes,
commissions or fees of trustee, ordinary repairs, insurance, in-
terest on incumbrances, and such other expenses as the trustee
might lawfully incur in carrying out the trust.°° But the will may
provide for the payment of taxes and other expenses incident to
the trust property and the execution of the trust out of other
assets of the estate, and not out of the income of the trust fund.**

The testator may expressly provide what shall be regarded as
“income” for distribution ;°* but in the absence of such provision,
interest on trust moneys or securities, rents and profits of real
estate, and other earnings of the trust estate, will be regarded as
income.** Much diversity of opinion prevails as to whether cor-
porate stock dividends or bonuses are capital or income, but the
prevailing rule seems to be that any dividends, whether payable in
money, in bonds, or in new stock, by whatever name they are
called, are income if paid out of the corporation’s earnings or ac-
cumulated profits.

§ 346. Trusts for the accumulation of income.—A valid
trust for the accumulation of the income arising from property

113 N. Y¥. 434, 21 N. E. 117; Wol-
finger v. Fell, 195 Pa. St. 12, 45 Atl.
492.

60In re Jones, 103 N. Y. 621, 9 N.
E. 493, 57 Am. Rep. 775; New York
Life Ins. & Trust Co. v. Sands, 53
N. Y. S. 320, 24 Misc. 102; In re
Cornell’s Estate, 44 N. Y. S. 585, 15
App. Div. 285; In re Hemphill’s
Estate, 180 Pa. St. 95, 36 Atl. 409.

61 Wilson v. White, 133 Ind. 614, 33
N. E. 361, 19 L. R. A. 581.

62 Lyman v. Parsons, 26 Conn. 493;
Willard v. Willard (N. J. Eq.), 21
Atl. 463.

63 In re Slocum, 169 N. Y. 153, 62
N. E. 130; In re Woodburn’s Estate,

138 Pa. St. 606, 21 Atl. 16,21 Am. St.
932.

64 Kalbach v. Clark, 133 Iowa 215,
110 N. W. 599, 12 L. R. A. (N. S.)
801, 12 Ann. Cas. 647; Hite v. Hite,
93 Ky. 257, 20 S. W. 778, 14 Ky. L.
385, 19 L. R. A. 173, 40 Am. St. 189;
Richardson v. Richardson, 75 Maine
570, 46 Am. Rep. 428; Leland v. Hay-
den, 102 Mass. 542; Simpson v. Mill-
saps, 80 Miss. 239, 31 So. 912; Hol-
brook v. Holbrook, 74 N. H. 201, 66
Atl. 124, 12 L. R. A. (N. S.) 768;
McLouth v. Hunt, 154 N. Y. 179, 48
N. E. 548, 39 L. R. A. 230; In re
Smith’s Estate, 140 Pa. St. 344, 21
Atl. 438, 23 Am. St. 237.
304

§ 346 WILLS

may be created, provided it does not violate the Rule against Per-
petuities, nor the local statute of accumulations.” In a previous
chapter we pointed out the dangers that lay in permitting accumu-
lations for a time longer than allowed by the Rule against Perpe-
tuities.°° But such trusts are not favored by the law, even when
they do not violate the Rule against Perpetuities.”

At common law, the power of controlling the rents and profits
was co-extensive with the power to dispose of the estate which
produced them, the limit of accumulations of annual income was
the same as the limit of the creation of future estates, and the en-
joyment of the profits could not be suspended for a longer period
than the full power of alienating the estate itself.°° By the
Thellusson Act, which has been substantially re-enacted in many
of the states, the testator is prohibited from making a devise of
land or a bequest of personalty for the purpose of accumulation
by means of rents or profits for a longer period than the life of
the settler, or twenty-one years after his death, or during the
minority of any person or persons, living at his decease, who un-
der the will directing the accumulations would, if then of full age,
be entitled to the rents and profits.° In jurisdictions where no
such statute has been enacted there seems to be no limitation to
trusts for accumulations except the Rule against Perpetuities.”

In the case of a gift to a charity, with a direction to accumulate
for an illegal period, the gift is valid, if it can be regarded as a
present gift, and, in place of the illegal accumulation, the court
will direct a management of the fund which is legal and possible,

cy pres the original direction.”*

65 Brown v. Wright, 168 Mass. 506,
47 N. E. 413; Eldred v. Shaw, 112
Mich. 237, 70 N. W. 545; In re Ma-
son, L. R. (1891), 3 Ch. 467.

66 See ante, ch. 14, § 268.
67 Thorn v. De Breteuil, 86 App.

Div. 410, 83 N. Y. S. 849.

68 Odell v. Odell, 10 Allen (Mass.)
1; Thellusson v. Woodford, 4 Ves.
227.

69 Statutes 39, 40, Geo. III, ch. 98;
Goldtree v. Thompson, 79 Cal. 613,

““Where there are no statutes

22 Pac. 50; Toms v. Williams, 41
Mich. 552, 2 N. W. 814; Thorn v. De
Breteuil, 86 App. Div. 405, 83 N. Y.
S. 849.

70 Fitchie v. Brown, 211 U. S. 321,
53 L. ed. 202, 29 Sup. Ct. 106; Nichols
v. Eaton, 91 U. S. 716, 23 L. ed. 254:
Connecticut Trust & S. D. Co. v.
Hollister, 74 Conn. 228, 50 Atl. 750;
Claflin v. Claflin, 149 Mass. 19, 20 N.
E, 454, 3 L. R. A. 370, 14 Am. St. 393.

Ingraham v. Ingraham, 169 Itt.
305 TESTAMENTARY TRUSTS § 347
regulating accumulations, a direction to accumulate a fund for a
charity, for a term beyond the common-law limit, does not vitiate
the gift for the charity, although no limit has been determined by
courts during which an accumulation for a charity may be per-
mitted. It is probable that courts would take care that no ex-
traordinary or extravagant term for accumulation should be al-
lowed for a future and prospective good. But where there are
statutes against accumulations, charities will be governed by the
same rules unless they are specially excepted.’’””

The will may provide for the accumulation of income from
trust property, or it may leave it to the discretion of the trustee to
add a part or all of the income to the principal fund. It may give
the beneficiary of the income any excess or surplus of income
above a designated amount.” It may also provide that any ex-
cess of accumulations above a specified amount may go to the
trustee as part of the trust estate to be disposed of according to
the other provisions in the will.”

Under the Thellusson Act in England and under similar stat-
utes in this country, accumulations may be directed for the benefit
of beneficiaries generally; but the statutes of some American
states restrict accumulations for the benefit of minors only.” In
such cases, the inclusion of adults with minors renders the whole
accumulation void.”®

§ 347. Time from which income is to be estimated.—In
some jurisdictions legacies are not payable until the expiration of
one year from the death of the testator, and until that time in-

432, 48 N. E. 561, 49 N. E. 320; St.
Paul’s Church v. Attorney-General,
164 Mass. 188, 41 N. E. 231; Odell v.
Odell, 10 Allen (Mass.) 1; Phila-
delphia v. Girard, 45 Pa. St. 9, 84 Am.
Dec. 470.

721 Perry Trusts (6th ed.), § 399. .

78 Burt v. Gill, 89 Md. 145, 42 Atl.
968, 43 Atl. 177; Russell v. Loring, 3
Allen (Mass.) 121; Hobbs v. Ches-
ley, 55 N. H. 31; Shangle v. Hallock,
6 App. Div. 55, 39 N. Y. S. 619; In re

20—Tromp. WILLS.

Ferguson’s Estate, 223 Pa. 530, 72
Atl. 896.

7 Holcombe v. Spencer, 82 Conn,
532, 74 Atl. 904.

75 Goldtree v. Thompson, 79 Cal.
613,.22 Pac. 50; Hascoll v. King, 162
N. Y. 134, 56 N. E. 515, 76 Am. St.
306; Eberley’s Appeal, 110 Pa. St. 95,
1 Atl. 330.

76 Pray v. Hegeman, 92 N. Y. 508;
Kilpatrick v. Johnson, 15 N. Y. 322.
§ 347 WILLS 306
terest does not begin to accrue thereon, unless otherwise provided
by the testator; and in such jurisdictions the interest or income
from trust property will not begin to accrue until the expiration
of one year from the death of the testator, being payable then
only at the end of the second year." But in other jurisdictions,
in the absence of a contrary intention, the beneficiary is entitled
to the income from the testator’s death, such an intention on the
part of the testator being presumed.”

A pecuniary legacy for support and maintenance entitles the
legatee to interest from the testator’s death.” Likewise, where
the testator by will has given annuities, the annuities must be paid
from the date of the testator’s death, unless a contrary intention
appears.*° But the time of accrual of the right of beneficiaries to
income and the time at which payments are to be made depend
upon the provisions of the will and the testator’s intention.™*
Where the income directed to be paid the beneficiary is to be ob-
tained from a certain specified fund, for instance, one derived
from the sale of real estate, it is held that the beneficiary can re-

ceive only the actual income when received from such fund.*?

77 Bartlett v. Slater, 53 Conn. 102,
22 Atl. 678, 55 Am. Rep. 73; Flum-
merfelt vy. Flummerfelt, 51 N. J. Eq.
432, 26 Atl. 857.

78 Baker v. Fooks, 8 Del. Ch. 84, 67
Atl. 969; McLane v. Cropper, 5 App.
Cas. (D. C.) 276; Young v. Miles, 10
/B, Mon. (Ky.) 287; Edwards v. Ed-
-wards, 183 Mass. 581, 67 N. E. 658;
Dickinson v. Henderson, 122 Mich.
583, 81 N. W. 583; Cooke v. Meeker,
36 N. Y. 15, 34 How. Prac. 115;
Thouron’s Appeal, 1 Sad. (Pa.) 453,
5 Atl. 218; Pell v. Mercer, 14 R. I.
412.

- 79 Cooke v. Meeker, 36 N. Y. 15,
34 How. Prac. 115; Townsend’s Ap-
peal, 106 Pa. St. 268, 51 Am. Rep. 523.

80In re Eichelberger’s Estate, 170
Pa. St. 242, 32 Atl. 605; Curran v.
Green, 18 R. I. 329, 27 Atl. 596; In re

Sear’s Estate, 18 Utah 193, 55 Pac. 83.

81 Hawaiian Trust Co. v. Van Holt,
216 U. S. 367, 54 L. ed. 519, 60 Sup.
Ct. 303; Thome v. Allen, 70 S. W. 410,
24 Ky. L. 987; Doherty v. Grady, 105
Maine 36, 72 Atl. 869; Keith v. Cope-
land, 138 Mass. 303; Rose v. Mc-
Hose, 26 Mo. 590; Paul v. Williams,
59 Hun 625, 13 N. Y. S. 701, 37 N. Y.
St. 195 (aftd. 136 N. Y. 644, 32 N.
E. 1015); Jasper v. Jasper, 17 Ore.
590, 22 Pac. 152; Fletcher’s Appeal,
125 Pa. St. 352, 17 Atl 340; In re
Bailey, 13 R. I. 543; Judevine v. Ju-
devine, 61 Vt. 587, 18 Atl. 778, 7 L. R.
A. 517; Whelan v. Reilly, 3 W. Va.

. 597,

82 Hite v. Hite, 93 Ky. 257, 20 S.
W. 778, 14 Ky. L. 385, 19 L. R. A.
173, 40 Am. St. 189.
307 TESTAMENTARY TRUSTS § 348

§ 348. Alienation or assignment of income by anticipation.
—lIt is possible for the beneficiary to alienate or assign the income
from trust property before it becomes due,** unless there exists a
statute restraining such alienation or assignment,** or unless there
is a provision in the will against such alienation or assignment.*°

It is held that a gift of property in trust, directing the payment
of the income thereof to the beneficiary, and also that the trustee
may, at any time, in his discretion, discontinue the payment of the
income, and apply the same as he deems best for the beneficiary’s
support, the beneficiary does not have an absolute right to the in-
come which he can alienate in advance of its payment to him.**
The testator may desire to make a provision in his will against
anticipation or alienation of the income by his beneficiaries. Such
provision is permitted in some jurisdictons only in case of aliena-
tion, attachment, bankruptcy, etc., by a declaration that the estate
shall terminate by a condition or conditional limitation ;** and in
other jurisdictions the intention of the testator that the gift shall
not be liable for the debts of the beneficiary is inferred from the
fact that the gift is expressly stated to be for the support and
maintenance of the beneficiary.**

83 Martin v. Davis, 82 Ind. 38;
Palmer v. Stevens, 15 Gray (Mass.)

liott, 8 B. Mon. (Ky.) 56; Roberts v.
Stevens, 84 Maine 325, 24 Atl. 873, 17

343; McCrea v. Yule, 68 N. J. L. 465,
53 Atl. 210; Lamberton v. Pereles, 87
Wis. 449, 57 N. W. 776, 23 L. R. A.
824.

84 See statutes of different states.

85 Moore v. Sinnott, 117 Ga. 1010,
44 S. E. 810; Martin v. Davis, 82 Ind.
38; In re Mehaffey’s Estate, 139 Pa.
St. 276, 20 Atl. 1056; Ropp v. Minor,
33 Grat. (Va.) 97.

86 Wemyss v. White, 159 Mass. 484,
34 N. E. 718.

87 Nichols v. Eaton, 91 U. S. 716, 23
L. ed. 254; St. John v. Dann, 66
Conn. 401, 34 Atl. 110; Barnett v.
‘Montgomery, 79 Ga. 726, 4 S. E. 874;
Steib v. Whitehead, 111 Ill. 247;
Meek v. Briggs, 87 Iowa 610, 54 N.
W. 456, 43 Am. St. 410; Pope v. EI-

L. R. A. 266; Smith v. Towers, 69
Md. 77, 14 Atl. 497, 15 Atl. 92, 9 Am.
St. 398; Wemyss v. White, 159 Mass.
484; Leigh v. Harrison, 69 Miss. 923,
11 So. 604, 18 L. R. A. 49; Lampert
v. Haydel, 96 Mo. 439, 9 S. W. 780,
2L. R. A. 113, 9 Am. St. 358; In re
Handy’s Estate, 167 Pa. St. 552, 31
Atl. 983; Journolmon v. Massengil, 86
Tenn. 81, 5 S. W. 719; Wales v. Bow-
ditch, 61 Vt. 23, 17 Atl. 1000, 4 L. R.
A. 819; Garland v. Garland, 87 Va.
758, 13 S. E. 478, 13 L. R. A. 212, 24
Am. St. 682.

88 Meek v. Briggs, 87 Iowa 610, 54
N. W. 456, 43 Am. St. 410; Leigh v.
Harrison, 69 Miss. 923, 11 So. 604, 18
L. R. A. 49.
§ 349 WILLS 308

§ 349. Application or payment of income.—In directing
the trustee to apply the income of trust property for the benefit of
the cestui que trust, the testator may use such words as “pay
over,”’®® “appropriate,”®° or “use.” Under authority given a
trustee to apply the income of trust property to the use of the
cestui que trust the trustee may pay the income to the cestui que
trust or expend it for his benefit as such trustee may deem best,”
but his authority in the matter may be limited by the use of the
words “pay over” instead of “apply.” It is the duty of the trus-
tee to comply with the terms of the will in regard to applying the
income, and he should pay it over, as it accrues, to the person en-
titled thereto under the provisions of the trust, and should con-
tinue to pay it over during the length of time contemplated by the
will.

Whether the trustee shall pay over the income directly or per-
sonally use, apply, and disburse it for the benefit of the cestui que
trust, depends upon the language of the will.°* But even where
the will expressly provides that payment shall be made directly
to the beneficiary, it has been held that payment need not be made
to the beneficiary when he is incapable of receiving it.?* A provi-
sion authorizing payment to a guardian or committee should be
inserted in the will, where the trust is for the benefit of an infant
or incompetent beneficiary.°° The period of payment, whether
stated to be “monthly,” “quarterly,” “semi-annually” or “annu-
ally” should be observed, and the amounts as are specified should
be paid; or if the amount is left to the discretion of the trustee, he
should pay such sums as his best judgment dictates as necessary
for the specified use.*” In leaving the amount of payment to the
discretion of the trustee the will should provide that the amount

89 Moore v. Hegeman, 72 N. Y. 376.

90 McArthur v. Gordon, 126 N. Y.
597, 27 N. E. 1033, 12 L. R. A. 667.

91 Kiah v. Grenier, 56 N. Y. 220.

92 Holden v. Strong, 116 N. Y. 471,
22 N. E. 960.

93 Hills v. Putnam, 152 Mass. 123,
25 N. E. 40; Dickinson v. Henderson,
122 Mich. 583, 81 N. W. 583; In re

Eyre’s Estate, 205 Pa. 561, 55 Atl.
541,

®4In re Fisk, 45 Misc. 298, 92 N. Y.
S. 394,

95 In re Fisk, 45 Misc. 298, 92 N. Y.
S. 394; Noble’s Appeal, 39 Pa. St.
425.

96 See post, ch. 30, art. 16.

87 Kimball v. Blanchard, 101 Maine
309 § 350

TESTAMENTARY TRUSTS
shall be such as may be deemed necessary from time to time, or
some similar expression.®®

A bequest of income means the whole net income, unless a con-
trary intention appears from the will.°® The testator may fix the
amount of income on a specified sum,* or designate so much only
that the trustee shall expend for support or some other particular
purpose.” Where the trustee is directed to apply the net income
of a fund “to the support, maintenance, and education” of a
minor child until he becomes of age, at which time the principal
fund is to be paid him, the entire net income need not be used for
such purpose, unless necessary.* The court will usually fix the
amount to be expended by the trustee for the support of the bene-
ficiary where the will itself does not fix it or authorize its deter-
mination by the trustee.*

§ 350. Who may be a trustee.—Any person who is capa-
ble of taking and holding the legal title or interest in the property
devised or bequeathed, or who is capable of exercising a power in
trust, and who is possessed with natural capacity to perform the
duties imposed by the trust, may act as trustee. Generally speak-
ing, an executor may always be regarded as a trustee. His duties
as executor, being fiduciary in their character, courts of equity
early exercised a superintending control over him in the adminis-
tration of his trust.° But probate courts now very generally super-

383, 64 Atl. 645; Green v. Crapo, 181 W. 288, 106 N. W. 577, 112 N. W. 622,

Mass. 55, 62 N. E. 956; Green v.
Smith, 17 R. I. 28, 19 Ati. 1081.

98 Mason v. Jones, 13 Barb. (N.
Y.) 461 (affd. 9 N. Y. 28, 59 Am.
Dec. 515).

29 Stone v. Littlefield, 151 Mass.
485, 24 N. E. 592.

1Berry v. Dunham, 202 Mass. 133,
88 N. E. 904.

2Hall v. Holloway, 58 Conn. 210,
20 Atl. 445; Caruthers v. Neal, 14 S.
W. 599, 12 Ky. L. 567; Cole v. Little-
field, 35 Maine 439; Levi v. Berg-
man, 94 Md. ‘204, 50 Atl. 515; Smul-
lin v. Wharton, 73 Nebr. 667, 103 N.

113 N. W. 267; Demeritt v. Young,
72 N. H. 202, 55 Atl. 1047; Reeve v.
Beekman, 42 N. J. Eq. 613, 9 Atl: 27
(affd. 42 N. J. Eq. 295, 18. Atl. 80) ;
In re McCormick, 40 App. Div. 73,
57. N. Y. S. 548 (affd. 163 N. Y. 551,
57 N. E. 1116).

3 Hooper v. Smith, 88 Md. 577, 41
Atl. 1095; In re McCormick, 40 App.
Div. 73, 57 N. Y. S. 548 (affd. 163 N.
Y. 551, 57 N. E. 1116).

4Bundy v. Bundy, 47 Barb. (N.
Y.) 135 (affd. 38 N. Y. 410).

5 Carter v. Christie, 57 Kans. 496,
46 Pac. 964; Shoemaker v. Brown, 10
Kans. 383.
ool

WILLS

310

intend his acts, and courts of equity will extend their supervision
only when the executor is acting as trustee under the will.°

A public or private corporation may act as trustee under a will,
if the execution of the trust is within the scope of its corporate

powers.”

One is not disqualified to be a trustee by infancy,

though, owing to his lack of discretion, he should never be ap-
pointed. An alien may act as trustee of personal property, but he
should not be appointed as trustee of real property unless his dis-
ability to take and hold title to land has been removed by statute.*
Nonresidents may be appointed and may act as trustees under a
will. A married woman may likewise be a trustee in jurisdic-
tions where her common-law disabilities have been removed by
statute.° A cestui que trust may be appointed a co-trustee,™ in
case he is not the sole beneficiary ;** but it has been held that he
can not act as sole beneficiary for himself.**. So a beneficiary un-
der a will should not be appointed a trustee thereunder unless
joined with other persons,** and even this is not favored.”

. The appointment of near relatives is not always advisable, as
in most cases the purposes of the trust will be best carried out
when there is no relationship subsisting between the trustee and

the cestui que trust.*®

§ 351.

Title or interest of trustee.—The nature and extent

of the trustee’s title or interest in the subject-matter of the trust

6 Ball v. Tompkins, 41 Fed. 486;
Proctor v. Dicklow, 57 Kans. 119, 45
Pac. 86.

“Vidal v. Girard, 2 How. (U. S.)
127, 11 L. ed. 205; Eglehart v. Egle-
hart, 26 App. Cas. (D. C.) 209, 6 Ann.
Cas. 732; Augusta v. Walton, 77 Ga.
517, 1 S. E. 214; Webb v. Neal, 5
Allen (Mass.) 575; Sargent v. Cor-
nish, 54 N. H. 18.

8 Perry Trusts (5th ed.), § 55.

®Roby v. Smith, 131 Ind. 342, 30
N. E. 1093, 15 L. R. A. 792, 31 Am.
St. 439.

10 Gridley v. Wynant, 23 How. (U.

S.) 500, 16 L. ed. 411; Still v. Ruby,
35 Pa. St. 373.

11 Story v. Palmer, 46 N. J. Eq. 1,
18 Atl. 363; Rogers v. Rogers, 111
N. Y. 228, 18 N. E. 636; Tiffany v.
Clark, 58 N. Y. 632.

12 Woodward v. James, 115 N. Y.
346, 22 N. E. 150.

18 Nellis v. Rickard, 133 Cal. 617,
66 Pac. 32, 85 Am. St. 227; Green v.
Green, 125 N. Y. 506, 26 N. E. 739,
21 Am. St. 743.

14 Bundy v. Bundy, 38 N. Y. 410.

15 Perry Trusts (5th ed.), § 59.

16 Wilson v. Wilson, 145 Mass. 490,
14 N. E. 521, 1 Am. St. 477.
311 TESTAMENTARY TRUSTS § 351
depend upon the provisions of the will. As a rule the legal title
or interest vests in the trustee for the purpose of executing the
trust, even though it is not expressly given him,** but where the
will does not fix the extent of his estate or interest, he will take
only such interest as is necessary to enable him to execute the
trust.® “Where there is no express devise to the trustees, it must
appear that it is the intention of the testator that they shall take
an estate, and where from the nature of the duties to be per-
formed, it appears that the taking of an estate is necessary the in-
tention of the testator will be presumed; and when the intention
is clear, an estate in the trustee will vest by implication.””

Again “it by no means follows that the same words devising to
the trustees two parcels of land, must necessarily vest the legal
estate in both parcels in the trustees, because they take a legal es-
tate in one of those parcels. They may take a legal estate in one,
because subsequent parts of the will require them to do acts in
reference to it which can be done only by the holder of the legal
estate, and then the law assigns to them such an estate as the due
execution of their trust demands; while at the same time, by force
of the statute of uses, or of wills, the other land, as to which no
duties are required of the trustees, goes to the cestui que use.’
But if the trustee is not given a legal title to the trust property by
express terms, or by necessary implication, there can be no ex-
press trust.**

There is a sense in which a life tenant is trustee for the remain-

17In re Reith’s Estate, 144 Cal. 314,
77 Pac. 942; Reed v. Davis, 95 Ga.
202, 22 S. E. 140; Flanner v. Fellows,
206 Ill. 136, 68 N. E. 1057; Sneer v.
Stutz, 102 Iowa 462, 71 N. W. 415;
Goslee v. Goslee, 94 S. W. 638, 29 Ky.
L. 654; Haley v. Palmer, 107 Maine
311, 78 Atl. 368; Bean v. Common-
wealth, 186 Mass. 348, 71 N. E. 784;
Mead v. Jennings, 46 Mo. 91; Weller
v. Noffsinger, 57 Nebr. 455, 77 N. W.
1075.

18 Potter v. Couch, 141 U. S. 296,
35 L. ed. 721, 11 Sup. Ct.. 1005;
Doane v. ‘Mercantile Trust Co., 160

N. Y. 494, 55 N. E. 296; Gilpin v.
Williams, 17 Ohio St. 396; Coover’s
Appeal, 74 Pa. St. 143; Barnes v.
Dow, 59 Vt. 530, 10 Atl. 258.

19Fay v. Taft, 12 Cush. (Mass.)
448,

20 Webster v. Cooper, 14 How. (U.
S.) 488, 14 L. ed. 510.

21 Phelps v. Phelps, 143 Mass. 570,
10 N. E. 452; Cooper v. Cooper, 36
N. J. Eq. 121; Bennett v. Garlock, 79
N. Y. 302, 35 Am. Rep. 517; Sprague
v. Sprague, 13 R. I. 701; Davies v.
Jones, L. R. 24 Ch. Div. 190,
WILLS 312

§ 352
derman. While he is entitled to the possession of the lands in-
volved, and may use them for his own benefit, and appropriate to
himself the proceeds arising from such use, still he holds the
corpus of the estate in trust in the sense that he must exercise
reasonable precaution to preserve the property intact for trans-
mission to the remainderman at the termination of the life estate,
and may not injure or dispose of it to his detriment.”

The title of the trustee may be a fee simple absolute, subject to
the trust, or a fee defeasible upon condition subsequent ;” or the
estate or interest given may be limited only for the life of the
trustee or another.**

The estate or interest of the trustee may be for years only ;”° or
the will may vest no title or interest in the property in the trustee,
but simply confer on him a power over it to be exercised for the
benefit of the cestui que trust.”*

§ 352. Who may be a cestui que trust.—As a general rule,
any person who is capable of taking and holding title to real or
personal property under a will may be a cestui que trust, as, a
married woman, an infant, an insane person, or even a person

22Gibson v. Brown (Ind. App.),
110 N. E. 716.

23 Potter v. Couch, 141 U. S. 296,
35 L. ed. 721, 11 Sup. Ct. 1005; Hill
v. Dade, 68 Ark. 409, 59 S. W. 39; In
re Reith’s Estate, 144 Cal. 314, 77
Pac. 942; Chicago Terminal T. R.
Co. v. Winslow, 216 Ill. 166, 74 N.
E, 815; Sneer v. Stutz, 102 Iowa 462,
71 N. W. 415; Pearce v. Savage, 45
Maine 90; Bean v. Commonwealth,
186 Mass. 348, 71 N. E. 784; Crane
v. Bolles, 49 N. J. Eq. 373, 24 Atl.
237; Woodward v. James, 115 N. Y.
346, 22 N. E. 150; Meredith v. An-
ders, 31 N. Car. 329; Williams v.
Burrows, 1 Ohio Dec. (Reprint) 218,
4 West. Law J. 527.

24 Sterling v. Ives, 78 Conn. 498, 62
Atl. 948; Brantley v. Porter, 111 Ga.
886, 36 S. E. 970; Hale v. Hale, 146
Ti. 227, 33 N. E. 858, 20 L. R. A,

247; Kilgore v. Kilgore, 127 Ind. 276,
26 N. E. 56; Jones v. Moore, 96 Ky.
273, 28 S. W. 659, 16 Ky. L. 561; Hay-
ward v. Rowe, 190 Mass. 1, 76.N. E.
286; Doane v. Mercantile Trust Co.,
160 N. Y. 494, 55 N. E. 296; People’s
Loan &c. Bank v. Garlington, 54 S.
Car. 413, 32 S. E. 513, 71 Am. St.
800; Jobe v. Dillard, 104 Tenn. 658,
58 S. W. 324; Barnes v. Dow, 59 Vt.
530, 10 Atl. 258.

25 In re Reith’s Estate, 144 Cal. 314,
77 Pac. 942; Johnson v. Buck, 220 Ill.
226, 77 N. E. 163; Weller v. Noff-
singer, 57 Nebr. 455, 77 N. W. 1075;
Treat v. Vose, 63 App. Div. 338, 71 N.
Y. S. 507; Gitpin v. Williams, 17
Ohio St. 396. :

26In re. L’Hommedieu, 138 Fed.
606; Edwards v. Bender, 121 Ala. 77, .
25 So. 1010; Hill v. Dade, 68 Ark.
409, 59 S. W. 39; Thieme v. Zumpe,
313 TESTAMENTARY TRUSTS § 353 °
unborn.”” The statutes of. some states, however, prescribe that
trusts shall be created for the benefit of minors, insane persons,
and such persons only as are unfit to be put in the management
and right of property. Under such a statute it is doubtful

whether a trust can be created to protect the property of benefi-

ciaries not within the statute from creditors.?®
In the absence of a prohibitive statute, a trust may be created
for the benefit of the federal government,” a state,®° or a corpora-

tion.**

But it has been held that a corporation can not be a cestui

que trust as to land of which it could not hold the legal title.*?
An alien can not have an equitable estate in land unless the law
authorizes aliens to hold land, but he may take a trust created for
his benefit subject to the right of the state to claim the beneficial
interest in the subject-matter of the trust.**
If the cestui que trust named is incapable of enforcing the trust,
or if there is no cestui que trust sufficiently designated, the trust

is void.**

§ 353.

Estate or interest of cestui que trust.—The cestui

que trust has only an equitable or beneficial title or interest in the

152 Ind. 359, 51 N. E. 86, 52 N. E.
449; Pittengel v. Boynton, 139 Mass.
244, 29 N. E. 655; Wiess v. Goodhue,
98 Tex. 274, 83 S. W. 178.

27 Trotter v. Blocker, 6 Port. (Ala.)
269; Hale v. Hale, 146 Ill. 227, 33 N.
E. 858, 20 L. R. A. 247; Woodgate
vy. Fleet, 64 N. Y. 566; Collins v.
Hoxie, 9 Paige (N. Y.) 81; Ashurst
vy. Given, 5 Watts & S. (Pa.) 323.

28 Lester v. Stephens, 113 Ga. 495,
39 S. E. 109; Sargent v. Burdett, 96
Ga. 111, 22 S. E. 667.

29 Neilson v. Lagow, 12 How. (U.
S.) 98, 13 L. ed. 909.

30Lamar v. Simpson, 1 Rich, Eq.
(S. Car.) 71, 42 Am. Dec. 345.

31Coleman v. San Rafael Tpk.
Road Co., 49 Cal. 517; Second Con-
gregational Soc. v. Waring, 24 Pick.

(Mass.) 304; Towar v. Hale, 46
Barb. (N. Y.) 361.
32 Coleman v. San Rafael Tpk.

Road Co., 49 Cal. 517; Downing v.

Marshall, 23 N. Y. 366, 80 Am. Dec.

290. .
33 Craig v. Leslie, 3 Wheat. (U. S.)
563, 4 L. ed. 460; McCaw v. Gal-
braith, 7 Rich. L. (S. Car.) 74; Com-
monwealth vy. Martin, 5 Munf. (Va.)
117; Attorney-General v. Sands,
Hardres 488.

34 Condit v. Reynolds, 66 N. J. L.
242, 49 Atl. 540; Murray v. Miller,
178 N. Y. 316, 70 N. E. 870; Levy v.
Levy, 33 N. Y. 97; Ensley v. Ensley,
105 Tenn. 107, 58 S. W. 288; Heiden-
heimer v. Bauman, 84 Tex. 174, 19 S.
W. 382, 31 Am. St. 29; Staines v.
Burton, 17 Utah 331, 53 Pac. 1015, 70
Am. St. 788.
WILLS 314

" § 354

trust property.** Such estates or interests are sttbject to the same
incidents,°** and are governed by the same rules of construction as
legal estates.*” But the nature and extent of the estate or interest
of the cestui que trust is to be determined from the will itself.**
By the will the cestui que trust may be given an equitable fee in
reality®® or an absolute estate in personal property.*® It may also
give him an estate during his life or during the life of another.**
So, also, the will may create in the cestui que trust an estate for
years only.*? The estate or interest of the beneficiary may be
vested** or contingent,** and a testamentary trust may be created
without giving the cestui que trust any estate or interest at all.*°

§ 354. Trust created for benefit of married woman.—
Property may be given in trust for the sole use of a married
woman, and the husband’s marital rights therein will be entirely
barred.*® Where property is thus placed in trust for the wife she

35In re Dixon’s Estate, 143 Cal.
511, 77 Pac. 412; Haley v. Palmer,
107 Maine 311, 78 Atl. 368.

36 Beidman v. Sparks, 61 N. J. Eq.
226, 47 Atl. 811; In re Shallcross’
Estate, 9 Pa. Dist. 388.

87 Fairfax v. Brown, 60 Md. 50;
Worrell v. Vinson, 50 N. Car. 91.

38In re Blake’s Estate, 157 Cal.
448, 108 Pac. 287; Chase v. Benedict,
72 Conn. 322, 44 Atl. 507; Lombard
v. Witbeck, 173 Ill. 396, 51 N. E. 61;
Copeland v. Bruning, 44 Ind. App.
405, 87 N. E. 1000, 88 N. E. 877;
Thomas v. Thomas, 97 Miss. 697, 53
So. 630; Treat v. Vose, 63 App. Div.
338, 71 N. Y. S. 507; Battersby v.
Castor, 181 Pa. St. 555, 37 Atl. 572;
In re Washburn’s Petition, 20 R. I.
697, 41 Atl. 658; Howe v. Gregg, 52
S. Car. 88, 29 S. E. 394; Beirne v.
Beirne, 33 W. Va. 663, 11 S. E. 46.

89Korn vy. Cutler, 26 Conn. 4;
Palmer v. Matthews, 33 Ga. Supp.
72; Haley v. Palmer, 107 Maine 311,
78 Atl. 368; Murray v. Murray, 5
Ohio Dec. (Reprint) 382.

40 Hamilton v. Downs, 33 Conn.
211; Brantley v. Porter, 111 Ga. 886,
36 S. E. 970; Chauncey v. Salisbury,
181 Mass. 516, 63 N. E. 914; Sawyer
v. Banfield, 55 N. H. 149.

41 Clisby v. Clisby, 146 Ala. 687, 40
So. 344; Easterly v. Keney, 36 Conn.
18; Copeland v. Bruning, 44 Ind. App.
405, 87 N. E. 1000, 88 N. E. 877;
Abell v. Abell, 75 Md. 44, 23 Atl. 71,
25 Atl. 389; Peabody v. Tyszkiewicz,
191 Mass. 317, 77 N. E. 839; Endicott
vy. Endicott, 41 N. J. Eq. 93, 3 At.
157.

42 Allen v. Stewart, 214 Mass. 109,
100 N. E. 1092. ;

43 Marshall v. Baltimore Safe De-
posit &c. Co., 101 Md. 1, 60 Atl. 476;
In re Moloughney, 67 App. Div. 148,
73 N. Y. S. 598; Patton v. Ludington,
103 Wis. 629, 79 N. W. 1073, 74 Am.
St. 910.

44In re Reed’s Estate, 10 Pa. Dist.
162.

45 Abend v. McKendree College,
174 Til. 96, 50 N. E. 1052.

46 See post, ch. 30, art. 16. See
315 § 399

TESTAMENTARY TRUSTS
may dispose of it by sale, mortgage or devise, free from the con-
trol of the husband, unless the will expressly limits her power of
alienation.*

But the mere fact that an estate is simply limited to the separate
use of a married woman, or even that it is secured to her free
from her husband’s debts, or that it is expressly stipulated that it
should go to her heirs, or that she is given an unlimited power of
testamentary disposition over it, does not prevent his curtesy

from attaching, if she does not dispose of it by her will.**
If the husband is trustee for the wife’s separate estate, his pos-
session as trustee does not entitle him to the use of the personalty

as his own.*®

Separate trusts for the benefit of married women may be cre-

ated by implication,*°

estate so created may be for life,°

her coverture.**

§ 355.

as well as by express provision, and the
* or an equitable fee,°* or during

Effect of provisions for maintenance, support, and

education.—A trust will usually be created by a provision for

the support, maintenance, or education of others;

54

especially

where the direction for support, maintenance or education is

also Cole v. Varner, 31 Ala. 244;
Robert v. West, 15 Ga. 122; Bayer
v. Cockerill, 3 Kans. 282; Powell v.
Cobb, 56 N. Car. 456. °

47 Townshend v. Frommer, 125 N.
Y. 446, 26 N. E. 805.

48 Pool v. Blakie, 53 Ill. 495; No-
land v. Chambers, 84 Ky. 516, 2 S.
W. 121, 8 Ky. L. 557; Tremmel v.
Kleiboldt, 75 Mo. 255; Cushing v.
Blake, 30 N. J. Eq. 689.

49 Eager v. Brown, 14 La. Ann. 684,

50 Varner’s Appeal, 80 Pa. St. 140.
_ 51McCroan v. Pope, 17 Ala. 612;
Hoskins v. Arterburn, 7 Ky. L. 291;
Sturges v. Cargill, 1 Sandf. Ch. (N.
Y.) 318; Ponton v. McLemore, 22 N.
Car. 285; In re Kuntzleman’s Estate,
136 Pa. St. 142, 20 Atl. 645, 20 Am.
St. 909.

52Korn v. Cutler, 26 Conn. 4;

Smith v. Johnson, 21 Ga. 386; Har-
rison v. Stockton, 19 N. J. Eq. 235;
Armstrong v. Zane, 12 Ohio 287;
Bacon’s Appeal, 57 Pa. St. 504.

53In re Wilbert’s Estate, 166 Pa.
St. 113, 30 Atl. 1022.

54JIn re Reith’s Estate, 144 Cal. 314,
77 Pac. 942; Dexter v. Evans, 63
Conn. 58, 27 Atl. 308, 38 Am. St. 336;
Prince v. Barrow, 120 Ga. 810, 48 S.
E, 412; In re Whitman’s Estate, 22
Til, 511; Anderson v. Crist, 113 Ind.
65, 15 N. E. 9; O’Riley v. McKier-
nan, 90 Ky. 116, 13 S. W. 360, 11 Ky.
L. 931; Holcomb v. Palmer, 106
Maine 17, 75 Atl. 324; White v.
Donnell, 3 Md. Ch. 526; Pitts v. Mil-
ton, 192 Mass. 88, 77 N. E, 1028, 116
Am. St. 223; Lucas v. Lockhart, 10
Sm. & M. (Miss.) 466, 48 Am. Dec.
766; Fester v. Willson, 68 N. H. 241,
§ 356 316

WILLS

imposed on the executor,®® or guardian.** But no general rule

can be stated that will determine when a gift will carry with it the
whole beneficial interest.*”

If the provision clearly shows that the use cf the property is
merely the motive which leads the testator to make the gift, and
if the beneficiary is not limited in his discretion as to the use
which he is to make of it, no trust is created. Thus where the
testator makes a testamentary gift to his wife to support herself
and her children, an absolute gift to the wife is generally held to
pass to her, free from any trust for the benefit of the children,
this being merely testator’s motive in making the gift.°* Buta
trust is created if the person charged with support is given a dis-
cretion, and'the discretion is subject to the control of the gourt if
misused.”°

§ 356. Rights of creditors respecting trust funds.—It is
possible for.a testator to protect the income of property given in
trust from the creditors of the beneficiary of the trust, although
the beneficial use and enjoyment of such income is expressly

granted the beneficiary.®°

The statutes of some states provide that when a trust is created
to receive rents and profits, and no valid direction for accumula-

38 Atl. 1003, 73 Am. St. 581; Con-
over v. Fisher (N. J. Eq.), 36 Atl.
948; Collister v. Fassitt, 163 N. Y.
281, 57 N. E. 490, 79 Am. St. 586;
Carson v. Carson, 36 N. Car. 329;
Williamson v. Hall, 3 Ohio Dec.
(Reprint) 504; Hunter v. Hunter, 58
S. Car. 382, 36 S. E. 734, 79 Am. St.
845; Hoyt v. Hoyt, 77 Vt. 244, 59
Atl. 845; Cresap v. Cresap, 34 W. Va.
310, 12 S. E. 527.

55 McCan’s Succession, 48 La. Ann.
145, 19 So. 220; Brown v. Brown, 12
Md. 87; Coburn v. Anderson, 131
Mass. 513; Barnes v. Marshall, 102
Mich. 248, 60 N. W. 468; Barnes v.
Dow, 59 Vt. 530, 10 Att. 258.

56 Smithwick v. Jordan, 15 Mass.
113,

57 Colton v. Colton, 127 U. S. 300,
32 L. ed. 138, 8 Sup. Ct. 1164.

58 Randall v. Randall, 135 Ill. 398,
25 N. E. 780, 25 Am. St. 373; Pelliz-
zarro v. Reppart, 83 Iowa 497, 50 N.
W. 19; Jones v. Jones, 93 Ky. 532, 20
S. W. 604, 14 Ky. L. 556; Lloyd v.
Lloyd, 173 Mass. 97, 53 N. E. 148;
Small v. Field, 102 Mo. 104, 14 S. W.
815; Elkinton v. Elkinton (N. J.
Eq.), 18 Atl. 587; In re Cressler’s
Estate, 161 Pa. St. 427, 29, Atl. 90;
Citizens’ Bank & Trust Co. v. Brandt
(Tenn.), 50 S. W. 778; Wilmoth v.
Wilmoth, 34 W. Va. 426, 12 S. E. 731.

59 Collister v. Fassitt, 163 N. Y.
281, 57 N. E. 490, 79 Am. St. 586. °

60 Hill v. McRae, 27 Ala. 175; St
John v. Dann, 66 Conn. 401, 34 Atl,
317 TESTAMENTARY TRUSTS § 356
tion is given, the surplus of such rents and profits, beyond the
sum necessary for the support of the beneficiary, shall be liable to
the claim of creditors ;** while other statutes render the income
of trust funds in excess of a stipulated amount liable for “neces-
saries sold, or work performed in a family as a domestic, or for
services rendered for salary owing to an employé of the judgment
debtor.”*? In some states it is held that where no discretionary
power to give or withhold the gift is conferred upon the trustee,
and there is no limitation over upon the insolvency of the benefi-
ciary, the interest of the beneficiary can be reached by his cred-
itors.

Before attempting to exempt the income of a trust fund from
the claims of creditors, by a provision in the will, the law of the
jurisdiction applicable to the trust should be carefully examined.
The law in some jurisdictions does not permit a testator, who has
given an equitable life estate to a beneficiary, to take away from
it the incidents of alienation or liability for debts,°* but where he
expressly provides that the beneficiary shall receive and enjoy the

-income during his life in amounts stated or to be determined by
the discretion of the trustee, and that the income shall not be sub-
ject to anticipation or alienation by the beneficiary or liable for his
debts, this will usually prevent creditors from subjecting the in-
come to the payment of their claims.*

110; Barnett v. Montgomery, 79 Ga.
726, 4 S. E. 874; Binns v. La Forge,
191 Tif. 598, 61 N. E. 382; Demuth v.
Kemp, 79 Misc. 516, 140 N. Y. S. 152.

61 California: Civ. Code (1915),
§ 859; Michigan: Howell’s Ann.
Stat. (1913), § 10681; Minnesota:
Gen. Stats. (1913), § 6712; Mon-
tana: Rev. Codes (1907), § 4541;
North Dakota: Comp. Laws (1915),
§ 5369; Oklahoma: Rev. Laws (1912),
§ 6664; South Dakota: Comp. Laws
(1913), § 307, p. 32; Wisconsin:
Stat. (1913), § 2083.

62 New York: Consol. Laws (1909),
p. 4994,

63 Thornton v. Stanley, 55 Ohio St.
199, 45 N. E, 318.

64 Taylor v. Harwell, 65 Ala. 1;
Honnett v. Williams, 66 Ark. 148, 49
S. W. 495; Gray v. Corbit, 4 Del.
Ch. 135; Bailie v. McWhorter, 56 Ga.
183; Harris v. Judd, 3 Hawaii 421;
Knefler v. Shreve, 78 Ky. 297; Pace
v. Pace, 73 N. Car. 119; Hobbs v.
Smith, 15 Ohio St. 419; Tillinghast
v. Bradford, 5 R. I. 205; Hutchinson
v. Maxwell, 100 Va. 169, 40 S. E. 655,
57 L. R. A. 384, 93 Am. St. 944; Da-
vidson v. Chalmers, 33 Beav. 653.

65 Nichols v. Eaton, 91 U. S. 716,
23 L. ed. 254; Fearson v. Dunlop, 21
D. C. 236; Seymour v. McAvoy, 121
‘

§ 357

WILLS

aLS

Where the testator wishes his bounty protected from the cred-
itors of the beneficiary he may do so with reasonable safety by
directing the payment of the income to or its application for the
benefit of the beneficiary, with a provision for forfeiture or cessa-
tion of payment in case of insolvency, bankruptcy, attempted
alienation, or the like, followed by a gift over of the income, or
a direction to accumulate, coupled with a discretion in the trustees
thereafter to apply such amount as they may think proper to the

use of the cestui que trust.**

‘

§ 357.

Duration of trust term.—In making a provision in

the will limiting the duration of the trust term, great care should
be taken not to violate the Rule against Perpetuities. This is dif-
ficult of accomplishment if the testator desires to postpone the

vesting period for any considerable length of time.

It is very

easy to provide for the probable termination of the trust within
the period required by law, and still to make it possible that the

estate will not vest within that time.

The duration of the term

may be fixed by an express provision, or, in the absence of such
provision a term sufficient in duration to accomplish the purpose

of the trust will be implied.”

The accomplishment or failure of the purposes for which a
trust is created is the measure of the term in the absence of a pro-

vision fixing a particular time for its termination.®

Cal. 438, 53 Pac. 946, 41 L. R. A.
544; Leavitt v. Beirne, 21 Conn. 1;
Steib v. Whitehead, 111 Ill. 247; Rob-
erts v. Stevens, 84 Maine 325, 24 Atl.
873, 17 L. R. A. 266; Baker v. Keiser,
75 Md. 332, 23 Atl. 735; Nickerson
v. Van Horn, 181 Mass. 562, 64 N. E.
204; Leigh v. Harrison, 69 Miss. 923,
11 So. 604, 48 L. R. A. 49; Lamport v.
Haydel, 96 Mo. 439, 9 S. W. 780, 2
L. R. A. 113, 9 Am. St. 358; Weller
v. Noffsinger, 57 Nebr. 455, 77 N. W.
1075; Shankland’s Appeal, 47 Pa. St.
113; Jourolmon v. Massengill, 86
Tenn. 81, 5 So. 719; Monday v.
Vance, 92 Tex. 428, 49 S. W. 516;
Barnes v. Dow, 59 Vt. 530, 10 Atl.

® But the mere

258; Van Osdell v. Champion, 89
Wis. 661, 62 N. W. 539, 27 L. R. A.
773, 46 Am. St. 864.

66 See post, ch. 30, art. 16. See also
Nichols v. Eaton, 91 U. S. 716, 23
L. ed. 254; Bull v. Kentucky Nat.
Bank, 90 Ky. 452, 14 S. W. 425, 12
Ky. L. 536, 12 L. R. A. 37; Lampert
v. Haydel, 96 Mo. 439, 9 S. W. 780,
2L. R. A. 113n, 9 Am. St. 358.

67 Flagg v. Walker, 113 U. S. 659,
28 L. ed. 1072, 5 Sup. Ct. 697; Angus
vy. Noble, 73 Conn. 56, 46 Atl. 278;
Frost v. Frost, 63 Maine 399; In re
Stone, 138 Mass. 476.

68 Young v. Bradley, 101 U. S. 782,
25 L. ed. 1044; Weakley v. Buckner,
319 TESTAMENTARY TRUSTS § 358

fact that no time is stated in the creation of a trust for its termi-
nation, does not render it void for uncertainty.

The duration of the term may, by the terms of the will, be lim-
ited to the happening of a certain event, as the death of the bene-
ficiary,"° his marriage,"* or upon his attainment of a certain age.”

A private trust is void where it is for an indefinite time or
where its purposes can not be fully accomplished within the period
allowed by the Rule against Perpetuities,”* but in the case of a
charitable trust, owing to the fact that there can be at no time as-
certained individuals who are entitled to the corpus of the trust
fund, or who can alien the beneficial interest in the property, a
charitable trust is usually indefinite in point of duration, and con-
sequently is not illegal, though it be, by the terms of the will,
perpetual.”*

§ 358. Termination of the trust.—A trust terminates when
the purposes for which it was created have been accomplished.”
If the intention of the testator as to the time of termination is
uncertain, it is the duty of the court to fix such time as will best

91 Ky. 457, 16 S. W. 130, 13 Ky. L.
37; Holcomb v. Palmer, 106 Maine
17, 75 Atl. 324; Lee v. O’Donnell, 95
Md. 538, 52 Atl. 979; Williams v.
Thacher, 186 Mass. 293, 71 N. E. 567;
Shattuck v. Young, 2 Sm. & M.
(Miss.) 30; Attorney-General v.
Dutch Reformed Protestant Church,
36 N. Y. 452; Baker v. McAden, 118
N. Car. 740, 24 S. E. 531; McMullin
v. McMullin, 8 Watts (Pa.) 236;
Gardenhire v. Hinds, 1 Head (Tenn.)
402.

69 Holmes v. Walter, 118 Wis. 409,
95 N. W. 380, 62 L. R. A. 986.

70 Griffin v. Pringle, 56 Ala. 486;
Sterling v. Ives, 78 Conn. 498, 62 Atl.
948; Augusta v. Walton, 77 Ga. 517,
1S. E. 214; King v. King, 168 Ill.
273, 48 N. E. 582; Weakley v. Buck-
ner, 91 Ky. 457, 16 S. W. 130, 13 Ky.
L. 37; Morse v. Morrell, 82 Maine
80, 19 Atl. 97; Harrison v. Denny, 113
Md. 509, 77 Atl. 837.

71 Chapin v. Cooke, 73 Conn. 72, 46
Atl. 282, 84 Am. St. 139.

72 Walker v. Murphy, 34 Ala. 591;
Phillips vy. Lowther, 111 Ga. 852, 36
S. E. 596; Bennett v. Bennett, 66 III.
App. 28; Langdon v. Ingram, 28 Ind.
360; Seabrook v. Grimes, 107 Md.
410, 68 Atl. 883, 16 L. R. A. (N. S.)
483, 126 Am. St. 400; McKrell v.
Walker, 172 Pa. St. 154, 33 Atl. 337.

73 Bigelow v. Cady, 171 Ill. 229, 48
N. E. 974, 63 Am. St. 230; Williams
v. Herrick, 19 R. I. 197, 32 Atl. 913.

74 Miller vy. Chittenden, 2 Iowa 315;
Gass v. Wilhite, 2 Dana (Ky.) 170;
Odell v. Odell, 10 Allen (Mass.) 1;
Allen v. Stevens, 161 N. Y. 122, 55
N. E. 568; Yard’s Appeal, 64 Pa. St.
95; Attorney-General v. Shrewsbury,
6 Beav. 220; Christ’s Hospital v.
Grainger, 1 Macn. & G. 460.

75 Vogt v. Vogt, 26 App. D. C. 46;
Booe v. Vinson, 104 Ark. 439, 149 S.
WILLS 320

§ 358
aid the trustee in carrying into effect the purpose for which the
trust was created.”* It may, however, terminate by a merger of
interests, or by the mutual consent of all the parties beneficially
interested.”

It is possible in some cases for the court to decree the termina-
tion of a trust when all the parties are capable of acting and as-
sent thereto, although all its purposes may not be accomplished ;”*
but this can not be done where the testator’s evident intention was
to keep the trust alive for some purpose.”

When a trust is created for the benefit of a life tenant his
death will terminate the trust, and the fee will vest in the remain-
derman discharged of the trust, unless there be express language
in the will requiring its continuance.*° No act, default or estop-
pel on the part of the life tenant, or of the trustee, or of both con-
junctively, will terminate the trust.8* But the trustee or some
person other than the cestui que trust may be empowered by the.
will to terminate the trust,*? and it would seem that the cestui que

W. 524; Ringrose v. Gleadall, 17 Cal.
App. 664, 121 Pac. 407; Thompson v.
Marshall, 73 Conn. 89, 46 Atl. 825;
Carswell v. Lovett, 80 Ga. 36,4 S. E.
866; Hifl v. Hill, 90 Nebr. 43, 132 N.
W. 738, 38 L. R. A. (N. S.) 198.

76 Frost v. McCaulley, 7 Del. Ch.
162, 44 Atl. 779.

77 Sears v. Choate, 146 Mass. 395,
15 N. E. 786, 4 Am. St. 320; Huber
v. Donoghue, 49 N. J. Eq. 125, 23
Atl. 495; Carney v. Byron, 19 R. IL.
283, 36 Atl. 5; Armistead vy. Hartt, 97
Va. 316, 33 S. E. 616; Holmes v.
Walter, 118 Wis. 409, 95 N. W. 380,
62 L. R. A. 986.

78 Bowditch v. Andrew, 8 Allen
(Mass.) 339; Smith v. Harrington,
4 Allen (Mass.) 566.

79In re Walkerly’s Estate, 108 Cal.
627, 41 Pac. 772, 49 Am. St. 97; Da-
vies v. Davies, 55 Conn. 319, 11 Atl.
500; Lemen v. McComas, 63 Md. 153;

Hayward v. Rowe, 190 Mass. 1, 76 N.
E. 286; Webb v. Hayden, 166 Mo.
39, 65 S. W. 760; Story v. Palmer,
46 N. J. Eq. 1, 18 Atl. 363; Cuthbert
v. Chauvet, 136 N. Y. 326, 32 N. E.
1088, 18 L. R. A. 745; Robbins v.
Smith, 72 Ohio St. 1, 73 N. E. 1051;
In re Mooney’s Estate, 205 ‘Pa. 418,
54 Atl. 1094; Carney v. Kain, 40 W.
Va. 758, 23 S. E. 650; Bussell v.
Wright, 133 Wis. 445, 113 N. W.
644,

80 Bradley v. Young, 2 MacArth.
(D. C.) 229 (affd. 101 U. S. 782, 25
L. ed. 1044); Thomas v. Castle, 76
Conn. 447, 56 Atl. 854; Jordan v.
Thornton, 7 Ga. 517.

81 Chandler v. Pomeroy, 96 Fed.
156.

82 Crooke v. Kings (Prince), 97 N.
Y. 421; Schreyer v. Schreyer, 101
App. Div. 456, 91 N. Y. S. 1065 (affd.
182 N. Y. 555, 75 N. E. 1134).
321 TESTAMENTARY TRUSTS § 359

'
trust may be given the power of termination, where its exercise,
as a power of sale, is beneficial to some third person.*

§ 359. Effect of failure of purpose of trust——Where the
will shows an intention on the part of the testator to create a
trust for the benefit of the cestui que trust, and the trust subse-
quently proves impossible of fulfillment, the gift will not fail, but
will be'treated as absolute, and free from any trust.** Nor does
the invalidity of the trust render invalid other provisions of the
will not affected by the trust.*

The invalidity of one of two or more trusts created by the same
will does not defeat the valid trust or trusts, if they can be sepa-
rated without defeating the general intention of the testator.*®

Where the trust is invalid, and there is no provision in the will
to the contrary, the property included in the trust will pass to the
heirs or next of kin of the testator, or to his residuary legatees or
devisees, as the case may be.*”

Where the duration of a trust is limited to the happening of a
particular event, it will ordinarily terminate when the event be-
comes impossible.** ‘Thus a trust created to last until the mar-
riage of A, terminates upon the death of A;*° and a trust to be
exercised by the trustee in his discretion terminates upon the

death of such trustee.°°

83 Crooke v. Kings (Prince), 97 N.
Y. 421.

84 Mansfield v. Mix, 71 Conn. 72,
40 Atl. 915; Neely v. Phelps, 63
Conn. 251, 29 Atl. 128; In re Bowes,
L. R. (1896), 1 Ch, 507.

85 Everitt v. Everitt, 29 N. Y. 39;
Holmes v. Walter, 118 Wis. 409, 95
N. W. 380, 62 L. R. A. 986.

86 Landram v. Jordan, 203 U. S. 56,
51 L. ed. 88, 25 App. D. C. 291, 27
Sup. Ct. 17; Garvey v. Union Trust
Co., 29 App. Div. 513, 52 N. Y. S.
260.

87 Abercrombie v. Abercrombie, 27
Ala. 489; In re Fair’s Estate, 136 Cal.
79, 68 Pac. 306; Bristol v. Bristol, 53
Conn. 242, 5 Atl.'687; Wilson v.

-21—Tuomp. WILts.

Odell, 58 Mich. 533, 25 N. W. 506;
Lusk v. Lewis, 32 Miss. 297; Beek-
man v. Bonsor, 23 N. Y. 298, 80 Am.
Dec. 269; Miller v. London, 60 N.
Car. 628; Grim’s Appeal, 109 Pa. St.
391, 1 Atl. 212; Craig v. Beatty, 11 S.
Car. 375.

88 Mansfield v. Mix, 71 Conn. 72,
40 Atl. 915.

89 Toner v. Collins, 67 Iowa 369, 25
N. W. 287, 56 Am. Rep. 346; Baker
v. McAden, 118 N. Car 740, 24 S. E.
531.

9 Neeley v. Phelps, 63 Conn. 251,
29 Atl. 128; Hadley v. Hadley, 147
Ind. 423, 46 N. E. 823; Mobley v.
Cummings, 35 S. Car. 101, 14 S. E
721.
CHAPTER, XIX

TESTAMENTARY POWERS

SECTION SECTION
365. Testamentary powers in general. 374. To whom appointment under
366. Classification of testamentary power may be made.
powers. 375. Apportionment of shares and
367. Purposes of testamentary pow- exclusion of appointees.
ers. 376. Estates or interests appointed.
368. Creation of testamentary pow- 377. Statutory regulation of power.
ers. 378. Power to lease.
369. Who mav be donee of power. 379. Power to mortgage.
370. Who may exercise power where 380. Power to sell or exchange.
no person designated. 381. Power to manage, control, im-
371. Joint donees of power. prove and invest.
372. Discretion of donee. 382. Advancements under power.

373. Delegation of testamentary pow-
ers,

§ 365. Testamentary powers in general—A testamentary
power is an authority conferred upon one or more persons by
will to perform, after the testator’s death, certain acts in relation
to the subject-matter of the gift. The powers most commonly
conferred by will are power to devise, power to sell and convey,
and power to incumber an estate. It must be understood, how-
ever, that the power is distinct from the estate,’ although it may
be, and frequently is, coupled with an interest in the land, as in
case of a gift to a tenant for life, with a general power of disposi-
tion; in which case the power does not enlarge the life estate
into a fee, although a sale thereunder will pass a fee to the pur-
chaser.”

Where the executor is authorized to sell any or all of the tes-
tator’s real estate and make a certain disposition of the proceeds,

1 Sewall v. Wilmer, 132 Mass. 131; So. 536; Vamplew v. Chambers, 29
Eaton v. Straw, 18 N. H. 320. Nebr. 83, 45 N. W. 268; Little v.
2Durr v. Wilson, 116 Ala. 125, 22 Giles, 25 Nebr. 313, 41 N. W. 186.

sae
323 TESTAMENTARY POWERS § 366
such authority is a mere naked power, disassociated with any
estate.* It has been held, however, that an authority conferred
upon an executor to “apportion and distribute” certain realty
vests the. legal title to such realty in him as trustee until such
distribution.*

A clear distinction has been made by the courts between a
“power” and a “trust.” A power conferred upon one by will is
not imperative, but may be exercised by him at his discretion;
that is, the testator, having full confidence in the judgment, dis-
position, and integrity of the person, empowers him to act accord-
ing to the dictates of that judgment. On the other hand, a trust
is imperative, and is made with strict reference to its faithful
execution. The trustee is not empowered, but is required to act
in accordance with the will of the testator.® However, if the
power is made a duty, or if it is coupled with the duties of a
trustee for the benefit of the trust, or ministerial or coupled with
an interest, it may be enforced by a court of equity.®

While a power is a species of agency, it does not terminate,
like an ordinary agency, upon the death of the principal. The
power may be exercised immediately upon the death of the
testator.”

§ 366. Classification of testamentary powers.—Testamen-
tary powers may be general or special. They are general when
they are capable of being exercised by the donee in favor of any
person, including himself, and are not restricted as to the estate
or interest over which he may exercise the power, while the
power is special if its exercise is restricted to particular persons,
or a particular class of persons, or if it can be exercised only for
certain named purposes or under certain conditions.® Under
some statutes “a power is general where it authorizes the transfer

3 Bradt v. Hodgdon, 94 Maine 559,
48 Atl. 179,

4Nimmons v. Westfall,
St. 213.

5Law Guarantee & Trust Co. v.
Jones, 103 Tenn. 245, 58 S. W. 219.

6 Freeman v. Prendergast, 94 Ga.
369, 21 S. E. 837; Nugent v. Cloon,

33 Ohio

117 Mass. 219; Osborne v. Gordon,
86 Wis. 92, 56 N. W. 334.

7 Welder v. McComb, 10 Tex. Civ.
App. 85, 30 S. W. 822.

8 Sugden Powers (8th ed.) 394;
Thompson v. Garwood, 3 Whart.
(Pa.) 287, 31 Am. Dec. 502,
§ 366 WILLS 324
or incumbrance of a fee, py either a conveyance or a will of or
a charge on the property embraced in the power, to any grantee
whatever’; and a power is special where either: (1) the person or
class of persons to whom the disposition of the property under
the power is to be made are designated; or (2) the power au-
thorizes the transfer or incumbrance, by a conveyance, will or
charge, of any estate less than a fee.’’

Under the statutes of New York and Minnesota a general or
special power is beneficial or in trust where no person other than
the beneficiary has, by the terms of the will, any interest in its
execution; and a beneficial power, general or special, other than
one within the purview of the statute, is void.*®

Powers are also further classified as appendant or appurtenant,
in gross, or collateral. Powers are said to be appendant or appur-
tenant when they depend on the estate limited to the person to
whom they are given.** Thus, where an estate for life is limited
to a person, with a power to convey or incumber his life estate,
the power is appendant.”

Powers collateral or in gross are powers given to one who has
an interest in the estate, to create such estates only as will not
attach on the interest limited to him, or take effect out of his
own interest. Thus where a tenant for life has a power to create
an estate which is not to begin until his own ends. It is a power
in gross, because the estate for life has no concern in it.* A
power simply collateral is a power given to a person not having
any interest or estate in land, and to whom no estate is given,
to dispose of or charge the estate in favor of another."*

®New York: Consol. Laws (1909),
p. 5010; Michigan: Howell’s Ann.
Stats. (1913), §§ 10759-10762, 10777,
10778; Minnesota: Gen. Stats. (1913),
§§ 6732, 6743, 6749; North Dakota:
Comp. Laws (1913), §§ 5385-5391,
5434; Oklahoma: Rev. Laws (1910),
§ 6680; South Dakota: Comp. Laws
(1913), § 323, p. 33; Wisconsin: Stat.
(1915), § 2104.

10 Sweeney v. Warren, 127 N. Y.
426, 28 N. E. 413, 24 Am. St. 468;

Hershey v. Meeker County Bank, 71
Minn. 255, 73 N. W. 967.

11 Brown v. Renshaw, 57 Md. 67;
Clark v. Wilson, 53 Miss. 119.

12 Garland v. Smith, 164 Mo. 1, 64
S. W. 188.

13 Young v. Sheldon, 139 Ala. 444,
36 So. 27, 101 Am. St. 44; Garland
v. Smith, 164 Mo. 1, 64 S. W. 188.

14 McGriff v. Porter, 5 Fla. 373;
Hammond v. Croxton, 162 Ind. 353,
325 TESTAMENTARY POWERS § 367

There is a well settled distinction between a devise of land to
executors to sell, and a devise that executors shall sell, or that
land shall be sold by them. A devise of the first description gives
a power coupled with an interest, and the estate passes. to the
executors ; but the latter are instances of a naked power.*®

Again, powers are (1) exclusive, such as to appoint to certain
members of a class,** or (2) nonexclusive, as a power to appoint
among all the members of a class.*”

Examples of the various classes of powers will be found in
another part of this work."®

§ 367. Purposes of testamentary powers.—The purposes.
for which powers may be created are numerous. Ordinarily, the
owner of property may confer on another the power to do any
act respecting the property which he might himself lawfully per-
form at the time of granting the power and within the limits
and restrictions of statutory provisions relating to powers. Thus
a power may be given to sell;*® to mortgage;”° to manage and
control ;?* to pledge or hypothecate ;?* to distribute ;”* to make
advancements ;** to make investments;?° to appoint or select
beneficiaries ;?° to collect income;?” to lease property;”* to ex-

69 N. E. 250, 70 N. E. 368; Bradt v.
Hodgdon, 94 Maine 559, 48 Atl. 179;
Reid v. Gordon, 35 Md. 174.

15 Bradt v. Hodgdon, 94 Maine 559,
48 Atl. 179; Larned v. Bridge, 17
Pick. (Mass.) 339.

16 Portsmouth v. Shackford, 46 N.
H. 423; Graeff v. DeTurk, 44 Pa. St.
527; Huling v. Fenner, 9 R. I. 410.

17 Hatchett v. Hatchett, 103 Ala.
556, 16 So. 550; Faloon v. Flannery,
74 Minn. 38,.76 N. W. 954; Lippin-
cott v. Ridgway, 10 N. J. Eg. 164;
Thrasher v. Ballard, 35 W. Va. 524,
14 S. E. 232.

18 See post, ch. 30, art. 17.

19 Tilley v. Barnes (Ala.), 62 So.
761; Price v. Courtney, 87 Mo. 387,
56 Am. Rep. 453; Mutual Life Ins.
Co. v. Shipman, 108 N. Y. 19, 15 N.
E. 58.

20Law Guarantee & Trust Co. v.
Jones, 103 Tenn. 245, 58 S. W. 219.

21 Blanchard vy. Blanchard, 4 Hun
(N. Y.) 287 (affd. 70 N. Y. 615, 6
Thomp. & C. 551).

22 Harbison v. James, 90 Mo. 411,
2S. W. 292.

23 Crittenden v. Fairchild, 41 N.Y.
289.

24 Metcalf v. Gladding, 35 R. I. 395,
87 Atl. 195.

25 Meister v. Meister, 121 Md. 440,
88 Atl. 235.

26 Lexington Brick Co. v. Thornton,
141 Ky. 207, 132 S. W. 422; Dunn v.
Morse, 109 Maine 254, 83 Atl. 795;
Leverett v. Rivers, 208 Mass. 241, 94
N. E. 470.

27 Potter v. Eames, 70 Misc. 147,
126 N. Y. S. 787.

28 Randall v. Gray, 80 N. J. Eq. 13,
§ 368 WILLS 326
change ;” to partition or divide ;*° to carry on a business ;** or to
do any other act which the donor of the power might himself
lawfully perform. Examples of powers for the above purposes

may be found in another chapter of this work.*?

§ 368. Creation of testamentary powers.—No particular
form of words is necessary for the creation of a power; any
expression, however informal, being sufficient if it clearly indi-
cates an intention to give a power. Usually, the power is given
by words which express the effect of its exercise in terms em-
powering the donee to sell, lease, or mortgage, as the case
may be.**

In the case of a trustee or executor appointed by will, a power
of sale, though not expressly given, will be implied from provi-
sions in the will imposing on him duties as to the distribution
of the estate which can not be performed without a sale;* as
when he is required to divide testator’s estate among persons
named, and the estate is not divisible in kind.*®

A power of sale of the remainder may be expressly given one
to whom a life estate in the property, covered by the power, is
devised,*’ or such power may be implied from a gift to one for

83 Atl. 482; In re Seebeck, 140 N. v. Goodhue, 98 Tex. 274, 83 S. W..

Y. 241, 35 N. E. 429,

29 Phelps v. Harris, 101 U. S. 370,
25 L. ed 855.

30 Thomas v. Owens, 131 Ga. 248,
62 S. E. 218.

31 Downing v. Marshall, 23 N. Y.
366, 80 Am. Dec. 290.

32 See post, ch. 30, art. 18.

33 Allen v. McFarland, 150 Ill. 455,
37 N. E. 1006; Hammond v. Croxton,
162 Ind. 353, 69 N. E. 250, 70 N. E.
368; Pennsylvania Land Co. v. Justi,
121 Ky. 765, 90 S. W. 279, 28 Ky. L.
669; Bodfish v. Bodfish, 105 Maine
166, 73 Atl. 1033; Haug v. Schu-
macher, 166 N. Y. 506, 60 N. E. 245;
Young v. Young, 68 N. Car. 309;
Thomas v. Ohio State University, 70
Ohio St. 92, 70 N. E. 896; In re
Watts, 202 Pa. 85, 51 Atl. 588: Wiess

178; Cheney v. Stafford, 76 Vt. 16,
56 Atl. 88.

34Sugden Powers (8th ed.) 102,
104.

35 Winston v. Jones, 6 Ala. 550;
Putnam Free School v. Fisher, 30°
Maine 523; Going v. Emery, 16 Pick.
(Mass.) 107, 26 Am. Dec. 645; Lind-
ley v. O’Reilly, 50 N. J. L. 636, 15
Atl. 379, 1 L. R. A. 79, 7 Am. St. 802;
Belcher v. Belcher, 38 N. J. Eq. 126;
Vaughan v. Farmer, 90 N. Car. 607;
Beurhaus v. Cole, 94 Wis. 617, 69
N. W. 986.

36 Corse v. Chapman, 153 N. Y.
466, 47 N. E. 812; Tomkins v. Miller
(N. J. Eq.), 27 Atl. 484; Stoff v. Mc-
Ginn, 178 Ill. 46, 52 N. E. 1048.

37 Security Co. v. Pratt, 65 Conn.
161, 32 Atl. 396; Larsen v. Johnson,
327 § 368

TESTAMENTARY POWERS
life, and a gift over of the unexpended portion at the death of
the life tenant to another.** Where the testator directs the prop-
erty to be sold, without specifying by whom the sale is to be made,
if the proceeds are distributable by the executor, a power in him
to make the sale is implied.*® It is always a question of intention
and construction whether a particular power is expressly created,
or whether it is to be implied from the language of the will.*

If the will prescribes no special method by which the power is
to be executed, as by deed, will, or other writing, its execution
may be accomplished by any writing sufficient as regards the
subject-matter.** A power to a donee to dispose of his property
by will to take effect upon his death may be given by such general
words as give authority to dispose of the property described, if
such donee should deem expedient.*? This power to dispose of
property by will may, of course, be given in specific terms, such
as a devise of property to any one whom A should, by will,
direct ;** and the power may be exercised by A’s will even if A

dies before the donor of the power.**

78 Wis. 300, 47 N. W. 615, 23 Am.
St. 404.

38 Roberts v. Lewis, 153 U. S. 367,
38 L. ed. 747, 14 Sup. Ct. 945; How-
ard v. Carusi, 109 U. S. 725, 27 L.
ed. 1089, 3 Sup. Ct. 575; Smith v. Mc-
Intyre, 95 Fed. 585; Gaffield v.
Plumber, 175 Ill. 521, 51 N. E. 749;
Henderson v. Blackburn, 104 Ill. 227,
44 Am. Rep. 780; Clark v. Middles-
worth, 82 Ind. 240; Pfingst v. Dol-
finger, 20 S. W. 534, 14 Ky. L. 489;
Paine v. Barnes, 100 Mass. 470; Ide
v. Ide, 5 Mass. 500; Bramell v. Cole,
136 Mo. 201, 37 S. W. 924, 58 Am. St.
619; Pierce v. Simmons, 17 R. I.
545, 23 Atl. 638.

39 Peter v. Beverly, 10 Pet. (U. S.)
532, 9 L. ed. 522; Rankin v. Rankin,
36 Ill. 293, 87 Am. Dec. 205; Ogle v.
Reynolds, 75 Md. 145, 23 Atl. 137;
Hale v. Hale, 137 Mass. 168; Mandle-
baum v. McDonell, 29 Mich. 78, 18
Am. Rep. 61; Clark v. Hornthal, 47

Miss. 434; Lippincott: v. Lippincott,
19 N. J. Eq. 121; Davone v. Fanning,
2 Johns. Ch. (N. Y.) 252; Gay v.
Grant, 101 N. Car. 206, 8 S. E. 99;
Wood v. Hammond, 16 R. I. 98, 17
Atl. 324, 18 Atl. 198; Lockart v.
Northington, 1 Sneed. (Tenn.) 318.

40 Williams v. Williams, 49 Ala.
439; Henderson yv. Blackburn, 104 Ill.
227, 44 Am. Rep. 780; Clark v. Mid-
dlesworth, 82 Ind. 240; Wenger v.
Thompson, 128 Iowa 750, 105 N. W.
333; Birmingham v. Lesan, 76 Maine
482.

41Fairman v, Beal, 14 Ill. 244;
Yard v. Pittsburgh & L. E. R. Co., 13
Pa. St. 205, 18: Atl. 874.

42 Burbank v. Sweeney, 161 Mass.
490, 37 N. E. 669.

43 Olney v. Balch, 154 Mass. 318,
28 N. E. 258; Krause v. Klucken, 135
Mass. 482; Austin v. Oakes, 117 N.
Y. 577, 23 N. E. 193,

44 Condit v. DeHart, 62 N. J. L. 78,
40 Atl. 776.
§ 369 WILLS 328

§ 369. Who may be donee of power.—A power may be
conferred upon a person who is the holder of a particular estate
in the property or it may be conferred upon one who holds no
estate therein. Asa general rule, any person capable of disposing
of his own estate may be the donee of a power and execute the
same, and it has been held that a power may be granted to and
executed by a married woman,“ or by an infant.*° Where a
power is conferred upon a married woman, and there is no pro-
vision requiring her husband’s concurrence in its exercise, there
is some dispute as to her authority to exercise it without such
concurrence.*7 Before conferring a power on a married woman
it should be ascertained if there are any statutory or other re-
straints as to its execution by her. An infant is not a competent
donee of a power requiring the execution of an instrument which
his nonage incapacitates him from executing,** but infants fre-
quently hold such powers during minority and exercise them
after attaining majority, and it would seem that he may execute
the powers before attaining majority if the instrument creating
the power authorize its execution during infancy.*

A corporation possessed with power under its charter to hold
and convey real estate may act as donee of a power, if its execu-
tion is within the corporate powers which ate conferred upon it
by statute.°°

It has been held that a general power of disposition may be
exercised by the attorney in fact of the donee of such power.”

§ 370. Who may exercise power where no person desig-
nated.—Construction will usually supply an omission to pro-
vide who is to exercise a power created by will. Thus where

45 Young v. Sheldon, 139 Ala. 444, Powers (8th ed.), 181, 211; 2 Wash.

36 So. 27, 101 Am. St. 44; Armstrong
v. Kerns, 61 Md. 364; Osgood v.
Bliss, 141 Mass. 474, 6 N. E. 527, 55
Am. Rep. 488.

46 Sheldon v. Newton, 3 Ohio St.
494.

47 Sugden Powers (8th ed.) 161-
167.

484 Kent Comm. 325; Sugden

Real Property, 652.

49 Hill v. Clark, 4 Lea (Tenn.)
405; In re Cardross, 7 Ch. Div. 728.

50 Killingsworth v. Portland Trust
Co., 18 Ore. 351, 23 Pac. 66,7 L. R.A.
638, 17 Am. St. 737.

51 Coats v. Louisville & N. R. Co.,
92 Ky. 263, 17 S. W. 564, 13 Ky. L.
557.
329 TESTAMENTARY POWERS § 371
the will provides for the receipt and expenditure of the proceeds
of a sale by the executors, a power of sale in them will be im-
plied.** Likewise where a will provides that the proceeds of a sale
are to be expended by a trustee, the power of sale may be exer-
cised by such trustee.**

If the power is coupled with an interest, and there is no pro-
vision as to who shall execute the power in the event of the
donee’s death, the power may be exercised by the survivors of
such donee.** A power to sell land given by will to an executor
will not, as a general rule, devolve upon an administrator with
the will annexed.°® In all cases where the power given to an
executor or trustee is personal, it does not follow the office ;** but,
where the power to such persons is impersonal, or where the will
imposes upon them the duty of selling real estate absolutely, un-
conditionally, and without discretion, the power follows the of-
fice, and will exist in their successors.*”

§ 371. Joint donees of power.—As a general rule, where a
power is given to two or more donees, all must join in its execu-
tion unless otherwise declared in the will or the statute.°* Espe-
cially is this true where the power is a mere naked power to
sell, not coupled with an interest.” Accordingly, where a power

52 Rathbone v. Hamilton, 4 App. 55 Hodgin v. Toler, 70 Iowa 21, 30

D. C.- 475; In re Van Brocklin’s
Estate, 74 Iowa 412, 38 N. W. 119;
Mandlebaum v. McDonell, 29 Mich.
78, 18 Am. Rep. 61; Ogle v. Reyn-
‘olds, 75 Md. 145, 23 Atl. 137; Belcher
yv. Belcher, 38 N. J. Eq. 126; Vaughan
v. Farmer, 90 N. Car. 607; Collier v.
Grimesey, 36 Ohio St. 17; Wood v.
Hammond, 16 R. I. 98, 17 Atl. 324, 18
Atl. 198.

53 Lindley v. O’Reilly, 50 N. J. L.
636, 15 Atl. 379, 1 L. R. A. 79, 7 Am.
St. 802; Lawton v. Lawton, 7 Ohio
Dec. 493.

54 Robinson v. Allison, 74 Ala. 254;
Bredenburg v. Bardin, 36 S. Car. 197,
15 S. E. 372.

N. W. 1, 59 Am. Rep. 435.

56 Bennett v. Chapin, 77 Mich. 526,
43 N. W. 893, 7 L. R. A. 377; Clark
v. Hornthal, 47 Miss. 434; McDonald

-y. King, 1 N. J. L. 432; Cooke v.

Platt, 98 N. Y. 35; Frisby v. Withers,
61 Tex. 134.

57 Clark v. Denton, 36 N. J. Eq.
419; Farrar v. McCue, 89 N. Y. 139;
Potts v. Breneman, 182 Pa. St. 295,
37 Atl. 1002.

581 Chance Powers, § 603; Peter
y. Beverly, 10 Pet. (U. S.) 532, 9 L.
ed. 522.

59 Peter v. Beverly, 10 Pet. (U. S.)
532, 9 L. ed. 532; Shelton v. Homer,
5 Metc. (Mass.) 462; Wilder v..Ran-
ney, 95 N. Y. 7.
§ 372 WILLS 330
is given to two or more executors, all who are living and acting
must unite in its execution.°° But an executor who refuses to
qualify need not join.*t Nor need an executor who has been
removed from office, or has renounced after qualifying, join in
the execution.

But it seems that if the context of the will shows an intention
on the part of the testator to give a personal discretion to the
particular individuals named by him as executors, to be exercised
by them jointly, all must join in the execution of the power,
though one renounce the office.** On the same principle, where
a power is given to two or more trustees, all must, if living, unite
in its exercise,** unless one disclaims the trust, in which case the
remaining trustee or trustees may exercise the power.®* But
where the power to two or more persons is coupled with an
interest, the survivor or successor may exercise the power.®®

§ 372. Discretion of donees.—Where the donee of a
power given by will is vested with an absolute discretion not only
respecting the manner of its execution, but to choose whether
he shall or shall not exercise it at all, he can not, in the absence of
bad faith on his part, be compelled to exercise it.°7 And where a

60 Wilson v. Mason, 158 Ill. 304, 42
N. E. 134, 49 Am. St. 162; Gould v.
Mather, 104 Mass. 283; Noel v. Har-
vey, 29 Miss, 72; Osgood v. Frank-
lin, 2 Johns, Ch. (N. Y.) 1, 14 Johns.
562, 7 Am. Dec. 513; Deneale v. Mor-
gan, 5 Call (Va.) 407; Crowley v.
Hicks, 72 Wis. 539, 40 N. W. 151.

61 Stewart v. Mathews, 19 Fla. 752;
Wolfe v. Hines, 93 Ga. 329, 20 S. E.
322; Wardwell v. McDowell, 31 Ill.
364; Putnam Free School v. Fisher,
30 Maine 523; Phillips v. Stewart, 59
Mo. 491; Denton v. Clark, 36 N. J.
Eq. 534; Wright v. Dunn, 73 Tex.
293, 11 S. W. 330.

62 Clinefelter v. Ayres, 16 Ill. 329;
Gould v. Mather, 104 Mass. 283; Wei-
mar v. Fath, 43 N. J. L. 1.

63 Tarver v. Haines, 55 Ala. 503;
Clay v. Hart, 7 Dana (Ky.) 1; Bart-

lett v. Sutherland, 24 Miss. 395; Os-
good v. Franklin, 2 Johns. Ch. (N.
Y.) 1,7 Am. Dee. 513.

6¢ Wilbur v. Almy, 12 How. (U. S.)
180, 13 L. ed. 944; Morville v. Fowle,
144 Mass. 109, 10 N. E. 766; Boston
Franklinite Co. v. Condit, 19 N. J.
Eq. 394; Lancashire v. Lancashire, 2
Phil. Ch. 657.

652 Perry Trusts, §§ 493, 499;
Cooke v. Crawford, 13 Sim. 91.

66 Parrott v. Edmondson, 64 Ga.
332; Gutman v. Buckler, 69 Md. 7, 13
Atl, 635; Bradford v. Monks, 132
Mass. 405; Osgood v. Franklin, 2
Johns. Ch. (N. Y.) 1, 7 Am. Dec.
513.

87 Mitchell v. Denson, 29 Ala. 327,
65 Am. Dec. 403; Lambert v. Harvey,
100 Ill. 338; Wilkinson v. Getty, 13
Iowa 157, 81 Am. Dec. 428; Venable
331 § 372

TESTAMENTARY POWERS
power, not a power in trust, is given to one not a trustee or execu-
tor, as in the case of an ordinary power of appointment, since the
exercise of the power is within the discretion of the donee, the
power terminates with his death, unless the will or statute pro-
vides otherwise, and equity will not cause its execution by an-
other. Also if a mere naked power is given, with a discretion
in the trustee to exercise it or not, it can not be exercised by his
successor in the absence of a provision empowering the successor
to. act”

Where the testator gives a power of appointment in such terms
that the donee may exercise his own discretion in selecting the
persons of a designated class who are to be benefited by the
power, the members of the class can not assert any interest in
the property covered by the power unless the donee exercises
such power.”°

But a power in the nature of a trust, or a power coupled with
a trust, makes it the imperative duty of the donee to carry it out,
and where he refuses to do so, or dies without executing it, a
court of equity will exercise it, so far as it is able to do so.” But
there is a true distinction between trusts where the whole power
is discretionary in the trustee, where it is left to his will whether
it shall be exercised or not, and a trust where the power is im-
perative, and the mere manner, time, or mode of its execution
only is discretionary. In the first case only the trustee upon

v. Mercantile Trust Co., 74 Md. 187,
21 Atl. 704; Olney v. Balch, 154 Mass.
318, 28 N. E. 258; King v. Merritt, 67
Mich. 194, 34 N. W. 689; Lindo v.
Murray, 91 Hun 335, 36 N. Y. S. 331,
70 N. Y. St. 805; Dillard v. Dillard
(Va.), 21 S. E. 669; Righter v. Riley,
42 W. Va. 633, 26 S. E. 357.

68 Mitchell v. Denson, 29 Ala. 327,
65 Am. Dec. 403; Lines v. Darden, 5
Fla. 51; Gilman v. Bell, 99 Ill. 144;
Howard v. Carpenter, 11 Md. 259;
Brown v. Phillips, 16 R. I. 612, 18
Atl. 249; Fronty v. Godard, 1 Bailey
Eq. (S. Car.) 517.

69 Security Co. v. Snow, 70 Conn.

288, 39 Atl. 153, 66 Am. St. 107;
Young v. Young, 97 N. Car. 132, 2 S.
E. 78.

70 Drake v. Drake, 134 N. Y. 220, 32
N. E. 114, 17 L. R. A. 664; Boyle v.
Boyle, 152 Pa. St. 108, 25 Atl. 494, 34
Am. St. 629.

71 Freeman v. Prendergast, 94 Ga.
369, 21 S. E. 837; Ingraham v. Ingra-
ham, 169 Ill. 432, 48 N. E. 561, 49 N.
E. 320; Druid Park Heights Co. v.
Oettinger, 53 Md. 46; Nugent v.
Cloon, 117 Mass. 219; Miller v.
Meetch, 8 Pa. St. 417; Atkinson v.
Dowling, 33 S. Car. 414, 12 S. E. 93.
§ 373 WILLS 332

whom the power was conferred can exercise it; in the second
case it may be exercised by a trustee appointed by the court on
the death or resignation of the original trustee.”

As an example of a power in the nature of a trust, may be
mentioned a power of sale given by will to an executor or trus-
tee with specific directions to.apply the proceeds for the benefit
of persons named.” “It is perfectly clear that, where there is a
mere power of disposing, and that power is not executed, this
court can not execute it. It is equally clear that wherever a trust
is created, and the execution of that trust fails by the death of
the trustee or by accident, this court will execute the trust.
* * * But there are not only a mere trust and a mere power,
but there is also known to this court a power which the party to
whom it is given is intrusted and required to execute; and with
regard to that species of power the court consider it as partaking
so much of the nature and qualities of a trust that, if the person
who has that duty imposed upon him does not discharge it, the
court will, to a certain extent, discharge the duty in his room and
place.”’** ‘

Where a power vests in executors a discretion as to whether
or not relatives of the testator should be designated by such
executors as heirs to a trust fund and entitled to inherit there-
from, and no relatives having been designated by the executors
during their lifetime, it was held that the power could not be ex-
ercised by the court.”

§ 373. Delegation of testamentary powers.—Where the
gift of a power implies personal trust and confidence in the
donee, he can not transfer or delegate its exercise to another,
except as to details not involving the exercise of any discretion,
unless a right of transfer or delegation is expressly given.”* Thus

72 Osborne v. Gordon, 86 Wis. 92, 75 Dunn v. Morse, 109 Maine 254,
56 N. W. 334. 83 Atl. 795.

73 Druid Park Heights Co. v. Oet- 76 Saunders v. Webber, 39 Cal. 287;
tinger, 53 Md. 46; Greenough v. Singleton v. Scott, 11 Iowa 589; Wil-
Welles, 10 Cush. (Mass.) 571; In re son v. Mason, 158 Ill. 304, 42 N. E.
Bailey, 15 R. I. 60, 1 Atl. 131. 134, 49 Am. St. 162; Shelton v. Ho-

74Lord Elden in Brown v. Higgs, mer, 5 Metc. (Mass.) 462; Graham
8 Ves. Jr. 570. v. King, 50 Mo. 22, 11 Am. Rep. 401;
333 TESTAMENTARY POWERS § 374

it is held that the donee of a power, other than a general power,
can not exercise it by appointing to another a life estate, with
power in that other to appoint in remainder.”

Power given to trustees and executors to sell real estate at
their discretion can not be delegated to an agent,”* and a devisee
of a life estate who is given a power of sale can not delegate the
execution thereof to the probate court."® This rule does not,
however, apply to a general power of appointment, unrestricted
as to its beneficiaries and the mode of its execution, since there
is in each case no trust and confidence, and the power is tanta-
mount to ownership, and accordingly the donee may delegate its
execution to another, or may appoint to such uses as another
shall appoint.*°

The testator may invest his donee with authority to delegate
the power by a gift in terms to the donee “and his assigns,” and
upon assignment the assignee may execute the power."

§ 374. To whom appointment under power may be made.
—Under a general power of appointment the donee may exer-
cise the power by appointing any person, including himself,*?
his creditors or his estate.** Under limited powers, however, the
appointment must be exercised in favor of the beneficiaries or

class of beneficiaries designated.**

Keim v. Lindley, 54 N. J. Eq. 418, 34
Atl. 1073; Phillips v. Brown, 16 R. I.
279, 15 Atl. 90; Terrell v. McCown,
91: Tex. 231, 43 S. W. 2; Hood v.
Haden, 82 Va. 588; Ingram v. Ingram,
2 Atk. 88.

77 Wickersham v. Savage, 58 Pa.
St. 365.

78 Coleman v. Connolly, 242 Ill. 574,
90 N. E. 278, 134 Am. St. 347.

79Cramton v. Rutledge, 157 Ala.
141, 47 So. 214.

80 Coats v. Louisville & N. R. Co,
92 Ky. 263, 17 S. W. 564, 13 Ky. L.
557; Crooke v. Kings County, 97 N.
Y. 421.

81 Sugden Powers (8th ed.) 180.

82 Hicks v. Ward, 107 N. Car. 392,
12 S. E. 318, 10 L. R. A. 821; Hanna
v. Ladewig, 73 Tex. 37, 11 S. W. 133.

83 Onderdonk v. Ackerman, 62
How. Pr. (N. Y¥.) 318; In re Inger-
sol’s Estate, 3 Pa. Dist. 399.

84 Thorington v. Hall, 111 Ala. 323,
21 So. 335, 56 Am. St. 54; Smith v.
Hardesty, 88 Md. 387, 41 Atl. 788;
Loring v. Wilson, 174 Mass. 132, 54
N. E. 502; Faloon v. Flannery, 74
Minn. 38, 76 N. W. 954; Cochran v.
Elwell, 46 N. J. Eq. 333, 19 Atl. 672;
Drake v. Drake, 134 N. Y. 220, 32
N. E. 114, 17 L. R. A. 664; Austin
v. Oakes, 117 N. Y. 577, 23 N. E. 193;
Herrick v. Fowler, 108 Tenn. 410, 67
§ 374 334

A power of appointment to “children” will not authorize an
appointment to grandchildren or other descendants,” unless an
intention to include them appears from the will,*° or unless the
statute provides that they shall be included.*” Likewise a power
of appointment to “children” does not include illegitimate chil-
dren unless an intention to include them appears.** A power
of appointment to “issue” contemplates all descendants to any
remote degree,*® unless it can be shown that the word was used
in the sense of “children.” A power of appointment to one’s
“family” has been held to include illegitimate children,*® grand-
children,®® and blood relatives.°* But in New York it has been
held that the use of the word “family” includes children only.”*
Where one has the power of appointment under a will limited to
nephews and nieces, such power is not well exercised by a dis-
position of the property to which the power relates to great
nephews and great nieces.” A power of appointment among
“relatives” extends to relatives at large, and is not confined to
next of kin, if the donee has the right of selection among the
relatives ;°* but where the power is merely to appoint among
relatives, and not among such as he may choose, he is confined

WILLS

in his appointment to the next of kin within the statute.*’

S. W. 861; Parks v. American Home
Missionary Soc., 62 Vt. 19, 20 Atl.
107.

85 Thorington v. Hall, 111 Ala. 323,
21 So. 335, 56 Am. St. 54; Smith v.
Hardesty, 88 Md. 387, 41 Atl. 788;
Carson v. Carson, 62 N. Car. 57;
Horwitz v. Norris, 49 Pa. St. 213;
Herrick v. Fowler, 108 Tenn. 410, 67
S. W. 861; Cruse v. McKee, 2 Head
(Tenn.) 1, 73 Am. Dec. 186; Hood v.
Haden, 82 Va. 588.

86 Ingraham v. Meade, 3 Wall. Jr.
(U. S.) 32, Fed. Cas. No. 7045;
Hood v. Haden, 82 Va. 588.

87 Alabama Civ. Code (1907), §
3435.

88 Dorin v. Dorin, L. R. 7 H. L. 568,
45 L. J. Ch. 652, 33 L. T. Rep. (N.
S.) 281, 23 Wkly. Rep. 570.

89 Drake v. Drake, 134 N. Y. 220,
32 N. E. 114, 17 L. R. A. 664; Glenn
v. Glenn, 21 S. Car. 308.

90Humble v. Bowman, 47 L. J.
Ch. 62.

82Lambe v. Eames, L. R. 6 Ch.
597, 40 L. J. Ch. 447, 25 L. T. Rep.
(N. S.) 175, 19 Wkly. Rep. 659.

83In re Simons, 55 Conn. 239, 11
Atl. 36; Bradlee v. Andrews, 137
Mass. 50. ;

°4 Dominick v. Sayre, 3 Sandf. (N.
Y.) 555,

95 Falkner v. Butler, 1 Ambl. 514, 27
Eng. Reprint 332.

96 Williams v. Burrows, 1 Ohio Dec.
(Reprint) 218, 4 West. L. J. 527;
Huling v. Fenner, 9 R. I. 410.

97 Varrell v. Wendell, 20 N. H.
431,
335 § 375

TESTAMENTARY POWERS

§ 375. Apportionment of shares and exclusion of ap-
pointees.—Under an exclusive power of appointment it is
discretionary with the donee to appoint such of the objects, ex-
cluding others, and in such shares as he may see fit.°* But where
the power is non-exclusive, the donee must distribute the property
so that all the appointees shall have some portion of it.*

In the absence of an intention on the part of the testator in
creating a non-exclusive power that the appointees shall take
equally, the donee may appoint such shares as he may see fit,*
provided, in some jurisdictions, none of the appointments are
illusory. Formerly in England, under the doctrine of “illusory”
appointments, where the donee had a power of appointing among
all the members of a class, as, for instance, to all one’s children,
equity would give relief to one to whom only a nominal share
had been appointed.”

In this country, however, this doctrine has been rejected by
some courts, the execution of the power being considered valid
if the appointment to one is merely nominal,’ while other courts

hold that a substantial share must be appointed to each.*

§ 376. Estates or interests appointed—Where there is a
restriction in the power of appointment as to the estate or in-

98 Franke v. Auerbach, 72 Md. 580,
20 Atl. 129; Cochran v. Elwell, 46 N.
J. Eq. 333, 19 Atl. 672; Monjo v.
Woodhouse, 185 N. Y. 295, 78 N. E.
71,6L. R. A. (N. S.) 746; In re Mc-
Neile, 217 Pa. 179, 66 Atl. 328.

99 Hatchett v. Hatchett, 103 Ala.
556, 16 So. 550; Farmer v. Farmer,
93 Ind. 435; Clay v. Smallwood, 100
Ky. 212, 38 S. W. 7, 19 Ky. L. 50;
Faloon v. Flannery, 74 Minn. 38, 76
N. W. 954; Wright v. Wright, 41 N.
J. Eq. 382, 4 Atl. 855; Stableton v.
Ellison, 21 Ohio St. 527; Allen v.
Barnes, 5 Utah 100, 12 Pac. 912.

1Hawthorn v. Ulrich, 207 Ill. 430,
69 N. E. 885; Clay v. Smallwood, 100
Ky. 212, 38 S. W. 7, 19 Ky. L. 50;
Allder v. Jones, 98 Md. 101, 56 Atl.

487; Wright v. Wright, 41 N. J. Eq.
382, 4 Atl. 855; In re Pepper’s Will,
120 Pa. St. 235, 13 Atl. 929, 6 Am.
St. 702; Allen v. Barnes, 5 Utah 100,
12 Pac. 912.

2 Sugden Powers, 449, 938; Butcher
v. Butcher, 1 Ves. & Bea. 79, 5 Gray’s
Cas. 371.

3 Lines v. Darden, 5 Fla. 51; Graeff
vy. DeTurk, 44 Pa. St. 527; Fronty v.
Godard, Bailey Eq. (S. Car.) 517;
McGibbon v. Abbott, L. R. 10 App.
Cas. 653.

4Hatchett v. Hatchett, 103 Ala.
556, 16 So. 550; Degman v. Degman,
98 Ky. 717, 34 S. W. 523, 17 Ky. L.
1310; Portsmouth v. Shackford, 46
N. H. 423; Cruse v. McKee, 2 Head
(Tenn.) 1; McCamant v. Nuckolls,
§ 376 WILLS 3365
terest to be appointed, the donee can not create a greater or less
estate or interest than that authorized;* but in the absence of
such restriction, or if the matter is left to the donee’s discretion,
he may appoint any estate or interest he may see fit.®

In creating a general power of appointment words of inher-
‘itance are not essential in order that the donee may appoint an
estate in fee;? but where the power authorizes the appointment
of an estate less than a fee he can appoint such an estate only
as is authorized.* Where a power to appoint is either general
or special, and is without positive restriction as to the nature of
‘the estate or interest to be appointed, the donee may execute the
power by an appointment in trust for the objects of the power.®

Where the power authorized the donee to divide or appoint the
estate to or among the testator’s children as he might deem proper,
‘it was held that the power was properly exercised by a will de-
vising the real estate to two children, and creating a charge
therein for a substantial sum in favor of a third.*°

Under a power to appoint an estate the donee is authorized to
appoint trustees to sell the estate and divide the proceeds among
the objects of the power," unless the context clearly shows that
it was intended that the objects of the power should take the

real estate and not the proceeds thereof.”

85 Va. 331, 12 S. E. 160; Thrasher
v. Ballard, 35 W. Va. 524, 14 S. E.
232.

® Hill v. Jones, 65 Ala. 214; Harker
v. Reilly, 4 Del. Ch. 72; Butler v.
Huestis, 68 Ill. 594, 18 Am. Rep. 589;
Shank v. Dewitt, 44 Ohio St. 237, 6
N. E. 255; Pepper’s Appeal, 120 Pa.
St. 235, 13 Atl. 929, 6 Am. St. 702;
Hood v. Haden, 82 Va. 588.

6 Hill v. Jones, 65 Ala. 214; Tor-
rance v. Torrance, 4 Md. 11; Hillen
v. Iselin, 144 N. Y. 365, 39 N. E. 368;
{n re Lawrence’s Estate, 136 Pa. St.
354, 20 Atl. 521, 20 Am. St. 925, 11
L. R. A. 85.

7Weed v. Knorr, 77 Ga. 636, 1 S.
E. 167; Myers v. Safe-Deposit, &c.

Co., 73 Md. 413, 21 Atl. 58; Mott v.
Ackerman, 92 N. Y. 539,

8 Cooke v. Husbands, 11 Md. 492.

® Harker v. Reilly, 4 Del. Ch. 72;
Torrance v. Torrance, 4 Md. 11; Lor-
ing v. Wilson, 174 Mass. 132, 54 N. E.
502; Maitland v. Baldwin, 70 Hun
267, 24 N. Y. S. 29, 53 N. Y. St. 894;
In re Lawrence’s Estate, 136 Pa. St.
354, 20 Atl. 521, 11 L. R. A. 85, 20
Am. St. 925.

10 Allder v. Jones, 98 Md. 101, 56
Atl. 487.

11 Harker v. Reilly, 4 Del. Ch. 72;
In re McNeile, 217 Pa. 179, 66 Atl.
328.

12 Doe v. Vincent, 1 Houst. (Del.)
416; Alley v. Lawrence, 12 Gray
337 TESTAMENTARY POWERS § 377

§ 377. Statutory regulation of powers.—The creation,
execution and effect of powers are, to some extent, regulated by
statute in many states; and in a few jurisdictions the law of
powers has been completely codified, thereby abolishing powers
as they exist at common law, and leaving their creation, con-
struction and. execution entirely governed by statute. These
latter statutes are, in effect, similar to the New York statute,
which is as follows: “Where an absolute power of disposition,
not accompanied by a trust, is given to the owner of a particular
estate for life or for years, such estate is changed into a fee
absolute in respect to the rights of creditors, purchasers, and
incumbrancers, but subject to any future estates limited thereon,
m case the power of absolute disposition is not executed, and
the property is not sold for the satisfaction of debts. Where a
like power of disposition is given to a person to whom no par-
ticular estate is limited, such person also takes a fee, subject to
any future estates that may be limited thereon, but absolute in
respect to creditors,’ purchasers, and incumbrancers. Where
such power of disposition is given, and no remainder is limited
on the estate of the grantee of the power, such grantee is entitled
to an absolute fee. Where a general and beneficial power to
devise the inheritance is given to a tenant for life, or for years,
such tenant is deemed to possess an absolute power of disposition
within the meaning of and subject to the provisions of the last
three sections. Every power of disposition by means of which
the grantee is enabled, in his lifetime, to dispose of the entire fee
for his own benefit, is deemed absolute.’’** While these statutes
expressly abolish powers as they formerly existed, any question
not fully covered by them will be solved by the common law on
the subject, and in many respects the same principles apply as
before the statutory change. Powers are, by these statutes, di-

(Mass.) 373; Stephenson v. Richard- Gen. Stats. (1913), §§ 6735-6739;
son, 88 Pa. St. 40. North Dakota: Comp. Laws (1913),

18New York: Consol. Laws §§ 5421-5425; Oklahoma: Rev. Laws
(1909), pp. 5007-5042. See also (1910), §§ 6676-6737; South Dakota:
Alabama Civ. Code (1907), §§ 3423- Comp. Laws (1913), §§ 319-381; Wis-
3426; Michigan: Howell’s Ann. Stats. consin: Stats. (1915), §§ 2101-2158.
(1913), §§ 10764-10768; Minnesota:

22—Tuomp. WILLS.
§ 378 WILLS 338
vided (1) according to the degree of control given over the prop-
erty, into general and special powers, and (2) according to the
persons interested in their exercise, into beneficial powers and

powers in trust.**

§ 378. Power to lease.—Power may be given a donee to
lease the property which is the subject of the power, provided it
does not transgress the Rule against Perpetuities. Such power
‘may be given by express words or by necessary implication, and
it will be construed liberally according to the intention of the
donor.”

A will giving to certain beneficiaries the net rents and profits
of all the testator’s real estate, after deducting expenses of col-
lection and keeping up repairs, but designating no one to collect
the rents, creates an implied power. in the executors to lease the
lands and collect the rents.*®

The authority to lease may be conferred by means of a power
in trust;’’ and in executing the power the trustee must follow
the power strictly.**

Trustees have a general power of leasing, if the lease does not
exceed the quantity of the estate that is in them and is a reason-
able one.*® A devise of land to a trustee to manage, rent, lease
and control in trust to pay over the annual proceeds to a desig-
nated devisee for his life with gift over to remaindermen on his
death without issue, gives the trustee authority to give ordinary
farming leases, but not unusual leases or leases of unopened
mines.”°

A life tenant or trustee can not, in the absence of a suitable

14 See statutes cited above.

15 Collins v. Foley, 63 Md. 158, 52
Am. Rep. 505; Taussig v. Reel, 134
Mo. 530, 34 S. W. 1104; Goddard v.
Brown, 12 R. I. 31.

16 Peirce v. Peirce, 195 Pa. St. 417,
46 Atl. 78.

17JIn re Seebeck, 140 N. Y. 241, 35
N. E .429; Henderson v. Henderson,
113 N. Y. 1, 20 N. E. 814.

18 Bergengren v. Aldrich, 119 Mass.
259, 29 N. E. 667.

19 Hutcheson v. Hodnett, 115 Ga.
990, 42 S. E. 422; Richmond v. Davis,
103 Ind. 449, 3 N. E. 130; Naylor v.
Arnitt, 1 Russ. & Myl. 501; Bowes
v. East London &c. Co., Jac. 324;

-Drohan v. Drohan, 1 Ball & B. 185;

Bowes v. East London Waterworks
Co., 3 Madd. (Am. Reprint) 194, Jac.
324.

20 Ohio Oil Co. v. Daughetee, 240
Ill. 361, 88 N. E. 818.
339 TESTAMENTARY POWERS § 379

power or a valid statutory provision, make a lease to extend
beyond the life of the tenant or the trust term, except that a
trustee holding a legal fee, determinable when the purpose of
the trust shall cease, may give a lease for a term which may
extend beyond the period of his trust estate, subject to the juris-
diction of a court of equity to annul the lease if unreasonable or
improvident.”*

Where the power to lease is given one person by will with a
devise of the fee to another, a lease given under the power for
any term of years not exceeding the limitation placed upon the
power in the will is valid, and will be binding upon the owner of
the reversion; but where the power is not created in this manner
but is merely the outcome of and an incident to the ownership
of an estate for a limited period with a remainder or reversion
in another, the lease created by the owner of the limited estate
will terminate with the expiration of the limited estate itself.” A
lease made under a power may continue notwithstanding the ter-
mination of the estate by the death of the donee of the power.”
A court of equity, will sometimes enforce the execution of a power
to lease when the lessee is in possession under a contract with the
donee of the power for a lease.**

§ 379. Power to mortgage—Power to mortgage real
estate may be conferred by will, and the scope and extent of such
power will depend upon the construction of the will.creating the
power.”” A power to sell is not, in itself, usually regarded as
authorizing a mortgage of the land, unless there is something in
the will to show that a mortgage was within the intention of the
testator.”°

21 Bergengren v. Aldrich, 139 Mass. Co., 111 Ga. 300, 36 S. E. 767, 78 Am.
259, 29 N. E. 667; Greason v. Keteltas, St. 164; Iowa Loan & Trust Co. v.

17 N. Y. 491. Holderbaum, 86 Iowa 1, 52 N. W.
221 Underhill Landlord and Tenant, 550; Brown v. Crittenden (Ky.), 1
p. 40. S. W. 421.
23 Hale v. Green, 2 Rolle Abr. 261, 26 Butler v. Gazzam, 81 Ala. 491,
pl. 10. 1 So. 16; McMillan v. Cox, 109 Ga.
24 Taussig v. Reel, 134 Mo. 530, 34 42, 34 S. E. 341; Wilson v. Mary-
S. W. 1104. land Life Ins. Co., 60 Md. 150; Hoyt

25 Fletcher v. American Trust &c. v. Jaques, 129 Mass. 286; Stokes v.
§ 380 WILLS 340

A devise of so much of the testator’s estate as may be sufficient
for the maintenance of the devisee during his life, “he having full
power to sell and convey any and all of my real estate, at any
time, if necessary to secure such maintenance,” does fot give
the devisee the right to mortgage the estate in fee.” But a dif-
ferent rule prevails if the purpose of the authorization of a sale
is the raising of money for some objects specified, or to pay
charges imposed on the land;”* and by some authorities, on the
view that a mortgage is a mere conditional sale, the power to
mortgage is regarded as prima facie included.” A power to
raise a sum of money upon certain land, has been held to au-
thorize either an absolute sale or a mortgage, as the donee may
;deem expedient.*°

A trustee empowered by will to mortgage real estate, owned ©
by the testator at the time of his death, to pay testator’s debts,
can not give a mortgage on land purchased by him as trustee,
although paid for with trust rents and profits.** Statutes usually
provide for the mortgaging of estates by trustees or executors,
and where there is no testamentary provision giving them power
to mortgage, they will be confined to mortgages authorized by
the statute.”

§ 380. Power to sell or exchange.—A testator may ex-
pressly confer upon the executor or trustee power to sell and
convey real estate,°* and such power will authorize a conveyance

Payne, 58 Miss. 614, 38 Am. Rep. 340;
Price v. Courtney, 87 Mo. 387, 56 Am.

Jackson v. Everett (Tenn.), 58 S. W.
340.

Rep. 453; Bloomer v. Waldron, 3 Hill
(N. Y.) 361; Allen v. Ruddell, 51 S.
Car. 366, 29 S. E. 198; Willis v.
Smith, 66 Tex. 31, 17 S. W. 247.

27 Hoyt v. Jaques, 129 Mass. 286.

28 Starr v. Moulton, 97 Ill. 525;
Kent v. Morrison, 153 Mass. 137, 26
N. E. 427, 10 L. R. A. 756, 25 Am.
St. 616; Hoyt v. Jaques, 129 Mass.
286; Loebenthal v. Raleigh, 36 N. J.
Eq. 169; Faulk v. Dashiell, 62 Tex.
642, 50 Am. Rep. 542; Devaynes v.
Robinson, 24 Beav. 86.

29 Zane v. Kennedy, 73 Pa. St. 182;

80 Wareham v. Brown, 2 Vern. 153.

31 Marx v. Clisby, 126 Ala. 107, 28
So. 388, ]

32 See statutes of various states.

33 Starr v. Willoughby, 218 III. 485,
75 N. E. 1029, 2 L. R. A. (N. S.)
623; Boland v. Tiernay, 118 Iowa 59,
91 N. W. 836; Marrett v. Babb, 91
Ky. 88, 15 S. W. 4, 12 Ky. L. 652;
Bradt v. Hodgdon, 94 Maine 559, 48
Atl. 179; Carter v. Van Bokkelen, 73
Md. 175, 20 Atl. 781; Iasigi v. Iasigi,
161 Mass. 75, 36 N. E. 579; Battelle
v. Parks, 2 Mich. 531; Brown v. Do-
TESTAMENTARY POWERS § 380

341

in fee simple, although no words of inheritance are used in creat-
ing the power.**

The rule is that, if a sale of the real estate is necessary to
carry out the purposes of the testator, the power to make the
sale will be given by implication, as otherwise the intention of
the testator might be defeated.** Although not expressly given,
a power of sale may be implied from the fact that the trustee is
charged with a duty which can not be performed without a power
of sale; and it is held that the words “invest and manage” imply
a power of sale unless a contrary intention can be found in the
will taken as a whole.*® But a power of sale will not be implied
merely because it will be beneficial to the estate,*” nor from a mere
direction to pay debts.** But such power will be implied from a
direction to pay debts with the proceeds of land.*®? A power of
sale alone will not imply a power to partition between joint
owners,*° but a power in a trustee to sell and exchange has been
held to have this effect.** A power of sale authorizes a sale for
cash only, and not an exchange.*” But it is advisable to provide
whether the sale is to be for cash, on time, or exchange; also
whether it shall be a public or private sale. Also the purpose for

which the sale is authorized should be indicated.**

herty, 185 N. Y. 383, 78 N. E. 147,
113 Am. St. 915; In re Watts’ Estate,
202 Pa. 85, 51 Atl. 588,

34 Hemhauser v. Decker, 38 N. J.
Eq. 426.

35 Blount v. Moore, 54 Ala. 360;
Going v. Emery, 16 Pick. (Mass.)
107, 26 Am. Dec. 645; Haggerty v.
Lanterman, 30 N. J. Eq. 37; Van
Winkle v. Fowler, 52 Hun 355, 614,
5 N. Y. S. 317, 24 N. Y. St. 811;
Skinner v. Wood, 76 N. Car. 109; In
re Mathewson, 12 R. I. 145.

36 Robinson v. Robineon, 105 Maine
68, 72 Atl. 883, 32 L. R. A. (N. S.)
675, 134 Am. St. 537.

37Roe v. Vingut, 117 N. Y. 204,
22 N. E, 933.

38 Huse v. Den, 85 Cal. 390, 24 Pac.
790, 20 Am. St. 232; Hill v. Den, 54
Cal. 6; Owen v. Ellis, 64 Mo. 77.

389 Meakings v. Cromwell, 2 Sandf.
(N. Y.) 512; Skinner v. Wood, 76 Me
Car. 109,

40In re Carr, 16 R. I. 645, 19 Atl.
145, 27 Am. St. 773; McQueen v. Far-
quar, 11 Ves. 467.

41 Phelps v. Harris, 101 U. S. at
25 L. ed. 855.

42 Woodward v. Jewell, 140 U. S
247, 35 L. ed. 478, 11 Sup. Ct. 784;
Russell v. Russell, 36 N. Y. 581, 93
Am. Dec. 540.

43 Chaplin Trusts and Powers, §
621,
§ 381 WILLS 342
'§ 381. Power to manage, control, improve and invest.—
The scope and extent of the powers of an executor, or testamen-
tary trustee, to manage and control the estate are necessarily
dependent upon the terms of the will and the object had in view
by the testator.** Usually an executor or trustee may do any-
thing within the scope of the power conferred which does not
involve the risk of personal liability for the consequences of his
act; but in all cases, he should exercise the care and judgment of
a man of ordinary prudence and sagacity.** This is the test
which the courts apply where the power is conferred on executors
or trustees to make improvements ;** or to invest or re-invest the
property and funds of the estate intrusted to them.*
A power to collect dividends on shares of stock in an incor-
porated company may by will be lodged with one person, while
the title to the stock is in another.*® But on the other hand, if
the testator clothes his executor or executors, or the survivor or
survivors of them, with full power and authority to rent, lease,
repair, insure, etc., the real estate during any period of time it
shall remain unsold and undivided, the title thereto vests in the
executor or executors as the case may be; so, also, if the will
creates a trust and vests the entire estate in the trustees, or it
becomes necessary to the due execution of the trust that it should
vest in the trustees, the rule is that it vests in them.*®

§ 382. Advancements under power.—It has been held
that a donee under a power of appointment may make advance-

44 Dickinson v. Conniff,65 Ala.581; W. 652, 7 L. R. A. (N. S.) 263, 9

Palmer v. Moore, 82 Ga. 177, 8 S. E.
180, 14 Am. St. 147; Mack v. Mul-
cahy, 47 Ind. 68; Hinton v. Hinton,
68 N. Car. 99; Cooper v. Horner, 62
Tex. 356.

45 Heisler v. Sharp, 44 N. J. Eq.
167, 14 Atl. 624 (affd. 45 N. J. Eq.
367, 19 Atl. 621).

46 Ely v. Pike, 115 Ill, App. 284;
Barclay v. Dupuy, 6 B. Mon. (Ky.)
92; Brown v. Chesterman, 56 Hun
641, 9 N. Y. S. 187, 30 N. Y. St. 537;
Lueft v. Lueft, 129 Wis. 534, 109 N.

Ann, Cas. 639.

47 Stephens v. Milnor, 24 N. J. Eq.
358; Leggett v. Hunter, 19 N. Y. 445;
Crawford v. Wearn, 115 N. Car. 540,
20 S. E. 724; Sargent v. Sibley, 8
Ohio Dec. (Reprint) 434, 8 Wkly.
L. Bul. 6; Gernert v. Albert, 160 Pa.
St. 95, 28 Att. 576; Goddard v. Brown,
12 R. I. 31.

48 Onondaga Trust & Deposit Co.
v. Price, 87 N. Y. 542.

49 Tobias v. Ketchum, 32 N. Y. 319;
Boyd v. Talbert, 12 Ohio 212.
343 TESTAMENTARY POWERS § 382

ments of money or property among appointees ;°° and the testator
will be presumed to have intended that. it should be an effective
power, and that the donee may do all that is necessary to ac-
complish the object, even to the making a deed of conveyance
to the appointees, if that is necessary to effect the purpose. But
where a testator gave his property to his wife for life, and au-
thorized her to divide it or any portion of it, among his children,
it was held that she had no power to make an unequal division
or advancement among them, or to favor one child as against
the others.”?

This power to advance or pay over to beneficiaries may be
conferred upon executors or trustees, and the extent of their
discretion in exercising the power necessarily depends upon the
wording of the power. In the creation of such a power the
donee’s discretion in its exercise should be particularly defined,
and the occasion and the amount of payments to be made should
be definitely set forth, otherwise resort to the court may be neces-
sary to fix the amount to be paid over.**

50TIn re L’Herminier, L. R. (1894), 52 Farmer v. Farmer, 93 Ind. 435.
1 Ch. 675. 53 Lewin Trusts (11th ed.) 719.
51 Franke v. Auerbach, 72 Md. 580, 54 Bundy v. Bundy, 38 N. Y. 410.
20 Atl. 129; Pate v. Pierce, 4 Coldw.
(Tenn.) 104,
CHAPTER XX

PROVISIONS CONCERNING MANAGEMENT AND SETTLEMENT OF

ESTATE
SECTION SECTION
390. Directions concerning invest- 398. Applying proceeds of sale or
ments. mortgage of trust property.
391. Instructions as to voting shares. 399, Authorizing compromise of
392. Selling real estate to pay debts. claims.
393. Paying debts and funeral ex- 400. Inventories, appraisement and
penses. reports.
394. When legacies payable. 401. Auditing accounts and securities.
395. Payment of legacies in case of 402. Distribution in kind.
shrinkage. 403. Insuring property belonging to
396. Payment of interest on legacies. estate.
397. Appointing agents and attor-

neys.

§ 390. Directions concerning investments.—A _ testator
may make specific directions in his will touching investments to
be made, by the executors or trustees, of the funds belonging to
the estate, and they will be liable for such interest as the invest-
ment so directed would have produced.* In the absence of such
direction, or where the will in general terms commits the invest-
ments to the discretion of the executors or trustees it would seem
that they will be held liable for any loss occasioned by investing
funds outside the jurisdiction in which they have to account, or
for loss occasioned by investing in securities not well recognized
as proper for such investments.” Where a will directed that a
legacy be put at interest, it was held that the purchase by the
executor of bank stock was not a compliance with the direction.’

1 Barney v. Saunders, 16 How. (U. bot, 40 N. Y. 76. But see Brown v.
S.) 535, 14 L. ed. 1047; Perrine v. French, 125 Mass. 410, 28 Am. Rep.
Petty, 34 N. J. Eq. 193. 254,

2 McCullough v. McCullough, 44 N. 3 Gilbert v. Welsch, 75 Ind. 557.

J. Eq. 313, 14 Atl. 642; King v. Tal-
344

1
345 MANAGEMENT AND SETTLEMENT OF ESTATE § 390

But where the will exempts trustees or executors from liability
“for any loss or damages that may happen to the estate except
the same shall occur or take place from their own wilful defaults,
misconduct, or neglect,” they are not liable for losses by reason
of improvident or careless investments, but only for wilful and
intentional disregard for the rules of prudence.* In many juris-
dictions only certain kinds of investments can be made by execu-
tors and trustees from funds belonging to the estate.°

Among the several kinds of investments directed to be made
by testators as particularly safe and proper are government or
state bonds. Real estate mortgages are generally an approved
form of investment, and one perhaps most commonly designated
by testators. If the latter form of security is selected, care should
be taken to designate that the mortgage must be a first lien, and
that the amount invested should be only a limited part of the
actual value of the property. Investments may and often are
directed to be made on personal security, and corporate stocks
and bonds, but such investments should not be authorized, and
should never be made by executors or trustees unless authorized
by express provisions in the will.° But where the will gives the
trustee a broad discretion in the matter of investments he has
been allowed to invest in corporate stock or bonds.”

Express‘authority is sometimes given a trustee to employ trust
property in trade or speculation, or in manufacturing, or to con-
tinue the business or trade of the testator; but in the absence of
such authority it will be considered a gross breach of trust to
use trust property for such purposes.* Authority to continue
the trade or business of the testator must be conferred in direct,
explicit, and unequivocal language, else it will not be deemed

4Crabb v. Young, 92 N. Y. 56. :

5 McCoy v. Horwitz, 62 Md. 183;
Brown v. French, 125 Mass. 410, 28
Am. Rep. 254; Woodruff v. Louns-
berry, 40 N. J. Eq. 545, 5 Atl. 99;
Ormiston v. Olcott, 84 N. Y. 339; In
‘te Cridland’s Estate, 132 Pa. St. 479,
19 Atl. 362.

6 Barney v. Saunders, 16 How. (U.

S.) 535, 14 L. ed. 1047; In re Allis’
Estate, 123 Wis. 223, 101 N. W. 365;
In re Bartol’s Estate, 182 Pa. St. 407,
38 Atl. 527.

7 Smyth v. Burns, 25 Miss. 422; In
re Allis’ Estate, 123 Wis. 223, 101
N. W. 365. But see Adair v. Brim-
mer, 74 N. ¥. 539.

® Penn v. Folger, 182 Ill. 76, 55 N.
§ 391 WILLS 346
conferred.® Express authority is sometimes given a trustee to
convert trust funds by purchasing real estate with the trust money,
and an intention to authorize such investment may be gathered
from the language of the will, although it contains no direct or
explicit authorization.?”

The testator may direct how investments are to be made,
and what securities shall be taken, or he may dispense with any
security.** And if he gives explicit directions as to the class of
securities in which the fund shall be invested, it is the duty of the
executor or trustee to follow the instructions literally.*?

It would seem that a mere recommendation that the trustee
invest funds in a specified manner, as distinguished from a direc-
tion to so invest, does not impose upon the trustee a duty to
comply therewith, or render him personally liable for any losses
occasioned through making other investments in good faith and
with reasonable prudence.* Examples of directions to invest
will be found in another chapter of this work.**

§ 391. Instructions as to voting shares.—An executor or
administrator may vote the stock standing on the books of the
corporation in the name of his decedent, on presentation of a
certified copy of his letters; and he may generally do this without
any formal transfer of the shares to him on the books of the
corporation.**

The testator’s ownership of corporate stock terminates with

E. 192; Weiters v. Hart, 67 N. J. Eq. N. J. Eq. 559, 23 Atl. 271; Eldridge

507, 63 Ati. 241; In re Hirsch, 116
App. Div. 367, 101 N. Y. S. 893; Sim-
mons v. Oliver, 74 Wis. 633, 43 N. W.
561.

9 Willis v. Sharp, 113 N. Y. 586, 21
N. E. 705,4 L. R. A. 493.

10 Bethea v. McColl, 5 Ala. 308;
In re Trelease, 49 Misc. 205, 96 N. Y.
S. 318.

11 Denike v. Harris, 84 N. Y. 89.

12 Worcester City Missionary Soc.
vy. Memorial Church, 186 Mass. 531, 72
N. E. 71; Brewster v. Demarest, 48

v. Greene, 17 R. I. 17, 19 Atl. 1085.

18 Baker v. Fooks, 8 Del. Ch. 84, 67
Atl. 969; Brown v. French, 125 Mass.
410, 28 Am. Rep. 254; Green v. Green,
19 R. I, 619, 35 Atl. 1042, 35 L. R. A.
790.

14 See post, ch. 30, art. 17.

15 Market St. R. Co. v. Hellman,
109 Cal. 571, 42 Pac. 225; Schmidt v.
Mitchell, 101 Ky. 570, 41 S. W. 929,
19 Ky. L. 763, 72 Am. St. 427; In re
Cape May &c. Nav. Co., 51 N. J. L.
78, 16 Atl. 191.
347 MANAGEMENT AND SETTLEMENT OF ESTATE § 392

his death, and the title thereto passes by his will to the executors
and trustees to be held by them in trust for certain beneficiaries.
They are entitled to vote the stock, because the right of voting
stock is inseparable from the right of ownership. But such
executors and trustees can not vote the stock when they disagree
as to the manner in which the vote shall be cast.*° Some testators
make specific bequests of shares of stock with the request that
the shares be voted in a certain way. It is deemed advisable to
make provision for the voting of stock in case there should be
any disagreement among the executors or trustees respecting the
manner of voting. Examples of directions respecting the voting
of shares of stock may be found elsewhere in this work.*”

§ 392. Selling real estate to pay debts —The title to real
estate does not vest primarily in the executor,*® but descends to
the heirs of the testator or vests in his devisees subject to the
debts of the estate,”® and if there are no debts, or if the personal
property is sufficient to pay all the debts, the title to the real
estate vests in such heirs or devisees free from any title, power
or right of possession on the part of the executor or adminis-
trator.*°

The general rule is that the general or residuary personal
estate constitutes the natural and primary fund for the payment
of the testator’s debts, and the real estate will be resorted to only
where there is not enough personalty to discharge the debts.”*

In the absence of statutory power or authority given them by
will, executors or trustees can not sell real estate.** It is gen-
erally advisable to insert a provision empowering the executor

16 Villamil v. Hirsch, 138 Fed. 690; v. Chambers, 33 Okla. 40, 124 Pac.

Tunis v. Hestonville &c. R. Co., 149 310.
Pa. St. 70, 24 Atl 88, 15 L. R. A. 21 Hattersley v. Bissett, 52 N. J. Eq.

665. 693, 30 Atl. 86; In re Thompson’s
17 See post, ch. 30, art. 17. Estate, 182 Pa. St. 340, 37 Atl. 940;
18 Tunnicliff v. Fox, 68 Nebr. 811, In re Martin, 25 R. I. 1, 54 Atl, 589.

94 N. W. 1032. 22 Ware v. Brush, 1 McLean (U.
19 Clark v. Fleischmann, 81 Nebr. S.) 533, Fed. Cas. No. 17171; Hill v.

445, 116 N. W. 290. Den, 54 Cal. 6; Frost v. Atwood, 73

20 Stewart v. Smiley, 46 Ark. 373; Mich. 67, 41 N. W. 96, 16 Am. St.
Sisk v. Almon, 34 Ark. 391; Austin 560.
§ 392 WILLS 348

s

to sell the real estate to pay debts or for distribution, unless some
special reason exists for withholding such power. No precise
form of words is necessary to confer such power, but unless it
is expressly given, the testator can only sell the real estate under
order of the probate court, in accordance with the statute.” The
testator may, however, charge the payment of his debts generally,
or certain specified debts upon his real estate, so far as the same
may be sufficient to pay them.”* But in order to exonerate lega-
cies from the payment of debts it must appear that the testator
not only intended to charge the real estate with the payment of
his debts, but that he also intended to exonerate his personal
property from their payment ;?° and the fact that the personalty
is not disposed of is strong evidence of the testator’s intention
not to exonerate it.°®

Testators sometimes provide that the executor shall dispose
of the property, “real and personal, for the payment of my debts,”
in which case it is discretionary with the executor to make the
proceeds of either the primary fund for the payment of the
debts.” A gift of property “after payment of debts” charges
the property given with their payment.”

Real or personal property, owned by the testator at the time of
his death, and which is not disposed of by his will, is liable for
debts before property of the same class covered by the will, unless
a contrary intention clearly appears.”? While a testator may

22 Anderson v. Messinger, 146 Fed.
929, 7 L. R. A. (N. S.) 1094; Lester
v. Kirtley, 83 Ark. 554, 104 S. W.
213; Neal v. Patten, 40 Ga. 363; Mc-
Cown v. Terrell, 9 Tex. Civ. App. 66,
29 S. W. 484.

24 Harkins v. Hughes, 60 Ala. 316;
Whitehead v. Gibbons, 10 N. J. Eq,
230; Heermans v. Robertson, 64 N. Y.
332; Garibaldi v. Hollowell, 68 N.
Car. 251; Shiner v. Shiner, 15 Tex.
Civ. App. 666, 14 Tex. Civ. App. 489,
40 S. W. 439.

.25 Scott v. Morrison, 5 Ind. 551;
Seaver v. Lewis, 14 Mass. 83; Turner

v. Mather, 86 App. Div. 172, 93 N. Y.
S. 1013; In re Riegelman’s Estate,
174 Pa. St. 476, 34 Atl. 120; Monroe
v. Jones, 8 R. I. 526.

26 Marsh v. Marsh, 10 B. Mon.
(Ky.) 360.

27 Powell v. Powell, 41 N. Car. 50.

28 Maybury v. Grady, 67 Ala. 147;
Phillips vy. Duckett, 112 Ill. App. 587;
Currie v. Murphy, 35 Miss. 473; San-
born v. Clough, 64 N. H. 315, 10 Atl.
678; Watts v. Watts, 38 Ohio St. 480.

29McLeod v. Dell, 9 Fla. 451;
Swann v. Swann, 58 N. Car. 297;
Bane v. Wick, 14 Ohio St. 505.
349

MANAGEMENT AND SETTLEMENT OF ESTATE

§ 393

impliedly charge his real estate with the payment of his debts,*°
an express provision to that effect is always advisable. By some
authorities a general direction by the testator that his debts shall
be paid is sufficient to charge his debts upon his real estate,**
while other cases hold that such direction will not have this effect,
unless the devise of the real estate is made to the executor.®? Ex-
amples of clauses authorizing the executor or trustee to sell real
estate may be found elsewhere in this work.**

§ 393. Paying debts and funeral expenses.—A direction in
the will that the executor pay all testator’s just debts and funeral
‘expenses adds nothing to the duty which the law imposes upon all
executors.** Hence it would seem that a provision of this kind
need not be made, unless the testator wishes to make some ex-
traordinary provision relative thereto.**

A testamentary direction to pay debts includes debts of all
kinds,** including those contracted subsequent to the execution

of the will.*”

Such a direction, however, does not include a debt

barred by the statute of limitations.**
The testator may, by the terms of his will, vary the common-

law or statutory order for the payment of debts,*®

and may

charge his debts, in the first instance, upon certain specific prop-

erty, but not to the prejudice of his creditors.*°

30 Rice v. Harbeson, 63 N. Y. 493;
Calder v. Curry, 17 R. I. 610, 24 Atl.
103.

81 Jackson v. Bevins, 74 Conn. 96,
49 Atl. 899; Kiesewetter v. Kress, 24
Ky. L. 1239, 70 S. W. 1065, 24 Ky. L.
405, 68 S. W. 633; Balls v. Dampman,
69 Md. 390, 16 Atl. 16,1 L. R. A. 545;
McKinley v. Coe, 66 N. J. Eq. 70, 57
Atl. 1030; McCullough v. Copeland,
40 Ohio St. 329.

32In re Bingham, 127 N. Y. 296, 27
N. E. 1055; Frasier v. Littleton, 100
Va. 9, 40 S. E. 108.

33 See post, ch. 30, art. 18.

34 Bacon v. Pomeroy, 104 Mass. 577.

35 Hapgood v. Houghton, 10 Pick.
(Mass.) 154.

Forms of clauses

36 Hewes v. Preston, 4 B. Mon.
(Ky.) 152; Elwood v. Deifendorf, 5
Barb. (N. Y.) 398.

37 Maxwell v. Maxwell, L. R. 4 H.
L. 506, 39 L. J. Ch. 698, 23 L. T. R.
(N. S.) 325, 19 Wkly. Rep. 15.

38 Steele v. Steele, 64 Ala. 438, 38
Am. Rep. 15; Waughop v. Bartlett,
61 Ill. App. 252; Hemphill v. Pry, 183
Pa, St. 593, 38 Atl. 1020; Woonsocket
Sav. Inst. v. Ballou, 16 R. I. 351, 16,
Atl 144,1 L. R. A. 555.

89 Wright v. West, 1 Cranch. (C.
C.) 303, Fed. Cas. No. 18102; In re
Sasse’s Estate, 93 Nebr. 640, 141 N.
W. 1026.

40 Ames v. Holderbaum, 44 Fed.
224; Howze v. Davis, 76 Ala. 381;
§ 394 WILLS 350

directing the payment of debts may be found in a subsequent
chapter.**

§ 394. When legacies payable.—Legatees have no rights
or equities as against creditors,* and the latter must all be satis-
fied before legacies are payable: Hence the executor must be
given a reasonable time to ascertain the value of the estate and
the indebtedness before he can be compelled to pay legacies. The
period for payment of legacies under both the civil and common
law is one year after the testator’s death,** and the executor can
not be compelled to pay the legacy within this period, although
directed by the testator to pay it sooner.**

By statute in most jurisdictions the time of paying legacies is;
fixed at the expiration of the period allowed creditors to prove
their claims, but in the greater number of jurisdictions permis-
sion is given the executor to pay legacies before the expiration
of the period allowed claimants to prove their claims, if there
be sufficient assets for that purpose, and the legatees give a re-
funding bond conditioned that they shall refund their due pro-
portion for the payment of all debts and costs subsequently estab-
lished against the estate. A testator may, however, fix by will
the time for payment of legacies, and such direction will be en-
forced, provided, of course, it is not in violation of the Rule
against Perpetuities.*° Thus the testator may fix the time of

Harkins v. Hughes, 60 Ala. 316;
Brant v. Brant, 40 Mo. 266.

41 See post, ch. 30, art. 18.

42 Richardson v. Ranson, 99 IIl.
App. 258; Hurst v. Davidson, 116 Ky.
351, 76 S. W. 37, 25 Ky. L. 555;
O’Donnell v. McCann, 77 N. J. Eq.
188, 75 Atl. 999; Rogers v. Hinton,
63 N. Car. 78; In re Chilcott’s Ap-
peal, 134 Pa. St. 240, 19 Atl. 850.

43In re Wilder, 9 Hawaii 492;
State v. Crossley, 69 Ind. 203; Lafon
v. Gravier, 1 Mart. (N. S.) (La.)
243; White v. Donnell, 3 Md. Ch. 526;
Fitch v. Randall, 163 Mass. 381, 40
N. E. 182; Wheeler v. Brem, 33 Miss.
126; Rice v. Boston Port &c. Aid

Soc. 56 N. H. 191; Ashton v. Wil-
kinson, 53 N. J. Eq. 6, 30 Atl. 895
(affd. 53 N. J. Eq. 227, 35 Atl. 1130.)

44Tn re Spencer, 16 R. I. 25, 12 Atl.
124; Brooke v. Lewis, 6 Madd. &
Geld. 358.

45 Johnson v. Webber, 65 Conn.
501, 33 Atl. 506; De Vaughn v. Mc-
Leroy, 82 Ga. 687, 10 S. E. 211;
Boling v. Miller, 133 Ind. 602, 33 N.
E. 354; McChord v: Caldwell, 96 Ky.
617, 29 S. W. 440, 16 Ky. L. 733;
Lindsay v. Zanoni, 6 Ohio C. C. 474,
3 Ohio C. D. 544; In re Hubert’s
Estate, 181 Pa. St. 551, 37 Atl. 576;
Lazier v. Lazier, 35 W. Va. 567, 14
S. E. 148.
Jo § 395

MANAGEMENT AND SETTLEMENT OF ESTATE
payment within a specified number of months after his death,**
on the arrival of the legatees at majority,*” on the marriage** or
on the death of a designated person,* or at any other time, not
beyond the period allowed by law, that the testator may choose to
’designate.°° The testator may leave the time of payment of
legacies to the discretion of the executor,®* or he may leave it to
the discretion of the executor whether the legacy shall be paid
‘at all.°? Examples of provisions relative to the payment of
legacies will be found in a subsequent chapter."

§ 395. Payment of legacies in case of shrinkage.—A tes-
tator may direct that certain legacies are to be given priority
over others in case the assets are not sufficient to pay all, and
such direction will be enforced.°* Such a direction is often made
in contemplation of an unexpected shrinkage in the estate after
the execution of the will. In the absence of such a direction the
legacies must be paid in the order provided by law. In the ab-
sence of such direction, general legacies suffer where a shortage
of assets exists, and they share pro rata in whatever amount re-
mains after payment of debts and specific legacies.°°

Specific legacies will not be allowed to suffer on account of
shrinkage, so long as any of testator’s property not specifically
bequeathed, remains unapplied.”°

46 Martin v. Martin, 69 Miss. 315,
13 So. 267; Cowherd v. Kitchen, 57
Nebr. 426, 77 N. W. 1107, 4 Prob.
Rep. Ann. 325.

47 Anderson v. Hendrickson, 5 N.
‘J. Eq. 106; Mendel v. Levis, 40 Misc.
271, 81 N. Y. S. 965.

48 Overton v. Davy, 20 Mo. 273.

49 Griswold v. Heard, 2 Gray
(Mass.) 322.

50 Claflin v. Claflin, 149 Mass. 19,
20 N. E. 454, 3 L. R. A. 370, 14 Am.
St. 393.

51 Savin v. Webb, 96 Md. 504, 54
Atl. 64.

52 Girard v. Futterer, 83 Ala. 234,
3 So. 516; Howland v. Howland, 11
Gray (Mass.) 469.

53 See post,-ch. 30, art. 18.

54 Chester County Hospital v. Hay-
den, 83 Md. 104, 34 Atl. 877; Towle
v. Swasey, 106 Mass. 100; Eames v.
Protestant Episcopal Church, 68 N.
H. 203, 44 Atl. 382; Moore v. Moore,
50 N. J. Eq. 554, 25 Atl. 403; Heath
v. McLaughlin, 115 N. Car. 398, 20
S. E. 519; Bright’s Appeal, 100 Pa.
St. 602; In re Spencer, 16 R. I. 25, 12
Atl. 124; Lee v. Smith, 84 Va. 289, 4
S. E. 717.

55 Towle v. Swasey, 106 Mass. 100;
Addition v. Smith, 83 Maine 551, 22
Atl. 470; Duncan vy. Franklin Twop.,
43 N. J. Eq. 143, 10 Atl. 546.

56 Towle v. Swasey, 106 Mass. 100;
Toch vy. Toch, 81 Hun 410, 30 N. Y.
Ԥ 396 WILLS 352

If by reason of a shrinkage in the estate, all the legacies and
devises can not be paid in full, the legacies given in a residuary
clause abate first and all other legacies must be paid in full be-
fore residuary legatees are entitled to payment.°* But if a gen-
eral legacy is sustained by a valuable consideration, such as the
relinquishment of a debt, or a claim of dower, and the right
subsists at the death of the testator, such general legacy will have
priority over other legacies.°* Examples of directions to pay
legacies in case of shrinkage will be found elsewhere in this
work,”®

§ 396. Payment of interest on legacies—Ordinarily gen-
eral legacies begin to bear interest from one year after the tes-
tator’s death, and continue to draw interest until paid. The
testator may, however, make a valid provision in his will that
the legacy shall bear interest from a time specified therein, or
on the happening of some event,°° and interest will begin to run
from the time designated, or from the happening of the event,

whether the legacy be vested or contingent.**

S. 1003, 63 N. Y. St. 197; In re Mc-
Mahon’s Estate, 132 Pa. St. 175, 19
Atl. 68. ;

57 Warren v. Morris, 4 Del. Ch.
289; Carper v. Crowl, 149 Ill. 465, 36
N. E. 1040; Sykes v. Van Bibber, 88
Md. 98, 41 Atl. 117; Porter v. Howe,
173 Mass. 521, 54 N. E. 255; Burke
v. Stiles, 65 N. H. 163, 18 Atl. 657;
In re Hodgman’s Estate, 140 N. Y.
421, 35 N. E. 660; Alsop v. Bowers,
76 N. Car. 168; In re Vance’s Estate,
141 Pa. St. 201, 21 Atl. 643, 12 L. R.
A. 227, 23 Am. St. 267; In re Zent-
ner’s Estate, 90 Wis. 236, 63 N. W.
162.

58 Moore v. Alden, 80 Maine 301,
14 Atl. 199, 6 Am. St. 203; Farnum
v. Bascom, 122 Mass. 282; Merriam
v. Merriam, 80 Minn. 254, 83 N. W.
162; Ellis v. Aldrich, 70 N. H. 219,
47 Atl. 95; Duncan v. Franklin Twp.,
43 N. J. Eq. 143, 10 Atl. 546; In re

Forepaugh’s Estate, 199 Pa. 484, 49
Atl. 236.

59 See post, ch. 30, art. 18.

60 Hallett v. Allen, 13 Ala. 554; At-
kins v. Guice, 21 Ark. 164; In re
Brown’s Estate, 143 Cal. 450, 77 Pac.
160; Redfield v. Marvin, 78 Conn.
704, 63 Atl. 120; Custis v. Adkins, 1
Houst. (Del.) 382, 68 Am. Dec. 422;
Bowdre v. Jones, 34 Ga. 399; Mor-
ton v. Hatch, 54 Mo. 408; Lewis v.
Barkley, 91 Nebr. 127, 135 N. W.
379,

61In re James’ Estate, 65 Cal. 25,
2 Pac. 494; Valentine v. Ruste, 93
Ill. 585; Johnson’s Succession, 24 La.
Ann. 125; Cook v. Hayward, 172
Mass. 195, 51 N. E. 1075; Ashton v.
Wilkinson, 53 N. J. Eq. 227, 35 Atl.
1130; In re Rutherfurd, 196 N. Y.
311, 89 N. E. 820; Ballantyne v. Tur-
ner, 59 N. Car. 224; In re Brotzman’s
Estate, 133 Pa. St. 478, 19 Atl. 564.
§ 397

353 MANAGEMENT AND SETTLEMENT OF ESTATE

The statutes of most states fix the time when a legacy shall
commence to bear interest, but the testator may fix the time by a
provision in his will, in which case the provisions of the will
control."

The courts will usually presume that it was the testator’s in-
tention to have interest paid from the date of his death where
(1) the legacy is specific,** (2) where the legacy is of the residue
of the whole or an aliquot part of the estate,* (3) where the
legacy is to an infant child or other dependent for its support,*°
(4) where the legacy is to a creditor in satisfaction of a debt,®* or
(5) where the legacy is for life or a term of years.” Examples
of clauses providing for the payment of interest on legacies may
be found elsewhere in this work.**

§ 397. Appointing agents and attorneys.—Testators often
express requests as to the employment of attorneys, overseers,
accountants or clerks, and collectors, whose assistance is deemed
necessary in the management and settlement of the affairs of the
estate, but the appointment of such persons can not generally
be controlled by will, and the executor may employ persons
other than those designated, or employ none at all. Where a tes-
tator, by express provision in his will, selects a certain person as
the attorney of his estate, and directs the executor to consult
and employ him, such selection is not binding on the executor,
but is only effective as an advisory provision.”

Security Co., 74 Conn. 218, 50 Atl.
735; Adams v. Spalding, 12 Conn.

62 Mourain v. Poydras, 6 La. Ann.
151; Budd v. Garrison, 45 Md. 418;

Dawes v. Swan, 4 Mass. 208; In re
Brownell’s Estate, 1 Con. Surr. 175,
3.N. Y. S. 276, 18 N. Y. St. 999; In
re Phillips’ Estate, 133 Pa. St. 426,
19 Atl. 404; Bradford Academy v.
Grover, 55 Vt. 462.

63 Pulliam v. Pulliam, 10 Fed. 53;
Nash v. Ober, 2 App. D. C. 304;
Myers v. Myers, 33 Ala. 85; Beal v.
Crafton, 5 Ga. 301; In re Pope’s
Estate, 83 Nebr. 723, 120 N. W. 191.

64 Bishop v. Bishop, 81 Conn. 509,
71 Atl. 583; Bancroft v. Hartford

23—Tuomp. WILLS.

350.

65 Crew v. Pratt, 119 Cal. 131, 51
Pac. 44; Flinn v. Flinn, 4 Del. Ch. 44;
Lyon v. Industrial School Assn.,.127
N. Y. 402, 28 N. E. 17.

66In re McKay’s Estate, 5 Misc.
(N. Y.) 123, 25 N. Y. S. 725.

67 Webb v. Lines, 77 Conn. 51, 58
Atl. 227.

68 See post, ch. 30, art. 12.

69 In re Ogier’s Estate, 101 Cal. 381,
35 Pac. 900, 40 Am. St. 61; Young
v. Alexander, 16 Lea (Tenn.) 108,
§ 398 WILLS 354

While the selection of an attorney can not be controlled by the
testator, yet if he wishes his legal adviser to overlook the ad-
ministration and settlement of his estate his wish may be fulfilled
by appointing the attorney one of the executors or trustees. In
such case, however, the attorney may not be allowed to charge
for both professional and official services, unless the will makes
special provision therefor."° Compensation for legal services
rendered by the executor in person is not usually allowed,"* tor
can he claim credit for legal services rendered to the estate by a

law firm of which he is a member.”

§ 398. Applying proceeds of sale or mortgage of trust
property.—Upon a sale or mortgage of trust property by the
trustee in the course of the execution of the trust, the rule for-
mally prevailed that the purchaser or mortgagee was generally
bound to see that the proceeds of the sale or mortgage was prop-
erly applied by the trustee. The rule was never regarded with
favor by the courts of this country, and, even when not expressly
abolished by statute, may be regarded at the present day as prac-
tically nonexistent; the purchaser or mortgagee being so liable
only when the circumstances were such as affect him with notice
of a possible misapplication by the trustee.”

The title of the purchaser or mortgagee is not affected by a
misappropriation of the proceeds,’* unless he colluded with the
trustee or knew, at the time of purchase or mortgage, of the
trustee’s violation of trust, committed or intended.”

70Green v. Winter, 1 Johns. Ch.
(N. Y.) 26, 7 Am. Dec. 475; Binsse
v. Paige, 1 Abb. Dec. (N. Y.) 138, 1
Keyes 87.

™ZHough vy. Harvey, 71 Ill. 72;
Pollard v. Barkley, 117 Ind. 40, 17
S. E. 294; Collier v. Munn, 41 N. Y.
143, 7 Abb. Pr. (N. S.) 193; Kuhn’s
Appeal, 4 Wash. 534, 30 Pac. 643.

72 Taylor v. Wright, 93 Ind. 121;
Parker v. Day, 155 N. Y. 383, 49 N.
E, 1046,

73 Dunham v. Milhous, 70 Ala. 596;
Seaverns v. Presbyterian Hospital,
173 Ill. 414, 50 N. E. 1079, 64 Am. St.

125; Steinke v. Yetzer, 108 Iowa 512,
79 N. W. 286; Walter v. Brugger,
78 S. W. 419, 25 Ky. L. 1597; Bur-
roughs v. Gaither, 66 Md. 171, 7 Atl.
243; Hamilton v. Jacobs, 4 Ohio C. C.
250, 2 Ohio C. D. 528; Claiborne v.
Holland, 88 Va. 1046, 14 S. E. 915.

74 Dawson v. Ramser, 58 Ala. 573;
Jacks v. State, 44 Ark. 61; Bevis v.
Heflin, 63 Ind. 129.

75 Reese v. Ivey, 162 Ala. 448, 50
So. 223; Leake v. Watson, 58 Conn.
332, 20 Atl. 343, 8 L. R. A. 666, 18
Am. St. 270.
35D § 399

MANAGEMENT AND SETTLEMENT OF ESTATE

However, a provision may be inserted in a will to the effect
that no purchaser or mortgagee shall be bound to see that the
proceeds of a sale or mortgage by the trustee shall be properly
applied, or the testator may accomplish the same purpose by a
provision that the receipt of the trustee shall be a sufficient dis-
charge. The purpose of such a provision in the will is to relieve
the purchaser or mortgagee from liability for misappropriation,
according to a distinction drawn by some authorities, where the
trust is of a defined and limited nature as distinguished from
one of a general and unlimited nature."* Thus where the trust
is for the payment of specified debts, annuities, or legacies, it is
sometimes held that the purchaser must see that the proceeds are
properly applied.’

Where there is no provision in the will relieving a purchaser
or mortgagee from liability for the misappropriation of the pro-
ceeds of a sale or mortgage, prospective purchasers or mortgagees
are often deterred from investing in trust property, and as a
consequence the execution-of the trust is often prevented or
greatly hindered. The statutes of many states contain provisions
relieving purchasers and mortgagees of trust property from
liability for misapplication of proceeds by the trustees. Ex-
amples of provisions relieving purchasers or mortgagees from
liability for misapplication of the proceeds of a sale or mortgage
may be found elsewhere in this work.”

§ 399. Authorizing compromise of claims.—As a general
rule, the executor may compromise any claim or demand due
the estate, provided he acts honestly and with reasonable discre-
tion for the best interest of the estate.*° It would seem that due

76 Grotenkemper v. Bryson, 79 Ky.
353, 2 Ky. L. 335; Duffy v. Calvert,
6 Gill (Md.) 487; St. Mary’s Church
v. Stockton, 8 N. J. Eq. 520; Dalzell
v. Crawford, 1 Pars. Eq. Cas. (Pa.)
37, 1 Clark 155, 2 Pa. L. J. 17; Na-
tional Bank of Commerce v. Smith
(R. 1.), 24 Atl. 273; Hughes v. Tabb,
78 Va. 313.

77 Curd v. Field, 103 Ky. 293, 45
S. W. 92, 19 Ky. L. 2016,

78 Michigan: Howell’s Ann. Stats.
(1913), § 10690; Minnesota: Gen.
Stats. (1913), § 6721; New York:
Consol. Laws (1909), p. 4993; Wis-
consin: Stats, (1915), § 2092.

79 See post, ch. 30, art. 18.

80 Neal v. Lamar, 18 Ga. 746; Bailey
vy. Dilworth, 10 Sm. & M. (Miss.)
404, 48 Am. Dec. 760; Verdier v.
Simons, 2 McCord Eq. (S. Car.)
§ 400 WILLS 356

-prudence on the part of the executor is all that is required, even
though there appears a probabilty that a better settlement could
have been made.*? Even the sanction of the probate court will
not relieve the executor where he has not acted judiciously and
for the benefit of the state.®*

Much litigation may be averted or the necessity of obtaining
the sanction of the court obviated by a provision in.the will au-
thorizing executors and trustees to compromise claims in favor
of or against the estate; but even where such provision exists the
executor can accept less than is due only when in his judgment
this may avoid the loss of the whole or a greater part of the
debt.** Examples of provisions authorizing executors and trus-
tees to compromise claims may be found in a subsequent chapter.*°

§ 400. Inventories, appraisements, and reports.—The first
duty of an executor, upon obtaining his letters testamentary, is
to prepare and file with the probate court an inventory of the
assets of the estate, and it would seem that a provision in the
will directing him not to make and file an inventory will not
relieve him of this duty, especially if he is not a residuary
legatee.** Such a provision in most jurisdictions would have no
legal effect,*’ and will usually be disregarded by the court.**

If the will contains a full inventory of all the effects of the
testator it may not be necessary for the executor to make a new
inventory.*?

As a rule the appraisers are appointed by the probate court,
and the executor has nothing to do with their selection or appoint-

385; Boyd v. Oglesby, 23 Grat. (Va.) 86In re Gilbert’s Estate, 2 Con.
674. Surr. 390, 11 N. Y. S. 743, 33 N. Y.

81 Jenkins v. Shields, 47 Iowa 708; St. 12.
Jacobs v. Jacobs, 99 Mo. 427, 12 S. 87 Fuller v. Wilbur, 170 Mass. 506,
W. 457. 49 N. E. 916.

82 Jenkins v. Shields, 47 Iowa 708. 88 Chase v. Mathews, 12 La. 357;

83 Wilks v. Slaughter, 49 Ark. 235, Potter v. McAlpine, 3 Dem. Sur. (N.
4 S. W. 766; Chase v. Bradley, 26 Y.) 108 See also In re Garrity’s
Maine 531; Wyman’s Appeal, 13 N. Estate, 108 Cal. 463, 38 Pac. 628, 41
H. 18. Pac: 485.

84 Buerhaus v. De Saussure, 41 S. 89 Panaud v. Jones, 1 Cal. 488.
Car. 457, 19 S. E. 926, 20 S. E. 64.

85 See post, ch. 30, art. 18.
357 MANAGEMENT AND SETTLEMENT OF ESTATE § 401

ment, unless there is a testamentary provision to the effect that
he shall make the appraisment in such manner as he may deem
best.°° But even where the will directs a special appraisement, it
is to be presumed that the appraisement shall be under the direc-
tion and control of the court.®*

Probate courts are usually vested with power to compel regular
accounting by the executor. The statutes usually provide that
the first account shall be filed within a certain time from the date
of appointment, that others shall follow at prescribed intervals,
and that a final account shall be made at the expiration of a pre-
scribed period. But the testator may entirely relieve the execu-
tor from his obligation to account by the terms of his will;°* al-
though he is not so relieved merely because the will gives him
absolute discretion as to the management of the estate,®* or allows
him a designated time in which to settle the same."* Examples
of provisions concerning inventories, appraisements, and reports
will be found in a subsequent chapter.”

§ 401. Auditing accounts and examining securities.—It is
the duty of an executor or trustee to keep a clear, distinct and
accurate account of his management of the estate, and this ac-
count ought in some way to be open to the inspection of persons
interested in the estate. Even though the estate is not in a posi-
tion to be finally settled, it often becomes important to interested
persons to know the situation of the property, and, in order to
enable beneficiaries to obtain such knowledge, testators often
insert in their wills a direction to the executors or trustees to
permit the beneficiaries under proper regulations to examine the
accounts and securities: Other testators appoint auditors of
accounts and prescribe their duties and compensation.*® The
general use of one or the other of these methods would go a
long way in preventing defalcations of executors and trustees.

90In re Supplee’s Estate, 5 Pa. Dist. 983In re Harrison’s Estate, 12 Pa.

41, 17 Pa. Co. Ct. 335. Co. Ct. 388.
91 Myers’ Appeal, 62 Pa. St. 104. °4In re Young’s Estate, 1 Pa. Co.
92 Maurer v. Bowman, 169 Ill. 586, Ct. 513,

48 N. E, 823. 95 See post, ch. 30, art. 18.

96 Williams v. Corbet, 8 Sim. 349.
§ 402

WILLS 358

Provisions respecting the auditing of accounts and examining
securities will be found elsewhere in this work.”

§ 402. Distribution in kind.—Where a conversion of the
property into money is not necessary to the administration of the
estate, and such conversion is not demanded by the parties in-
terested, a distribution in kind may be made.°* A distribution in
kind may be made where the parties interested consent thereto,”
or where a conversion of the property into money would necessi-
tate a loss to the estate."

A. specific legacy should, of course, be delivered in kind to the
legatee, unless the will provides for its investment and the deliv-
ery of the proceeds thereof to the legatee.? The payment of
pecuniary legacies in property instead of money is sometimes a
convenient way of payment, and testators often make provision
for this mode of final distribution, prescribing the manner of
determining the value of the assets to be distributed. Examples
of such provisions may be found in another chapter.®

§ 403. Insuring property belonging to estate.-—Ordinarily
-an executor or trustee is not required to insure or continue insur-
ance upon the property of the decedent,* yet they must adopt
such precautions against loss, and exercise such forethought for
the security of the property as prudent men are accustomed to
employ in regard to their own property ;° and in cases where the
loss was of such a nature as might have been covered by an in-
surance policy, and would have been so covered by a prudent man

97 See post, ch. 30, art. 18.

98 Ward v. Oates, 42 Ala. 225; Wa-
terman v. Alden, 115 Ill. 83, 3 N. E.
505; Rose v. O’Brien, 50 Maine 188.

99 Dillard v. Ellington, 57 Ga. 567;
Hurley v. Hewett, 89 Maine 100, 35
Atl. 1026; Murff v. Frazier, 41 Misc.
408; Wilson v. Fisher, 5 N. J. Eq.
493; Lane v. Albertson, 78 App. Div.
607, 79 N. Y. S. 947; Baptist Female
University v. Borden, 132 N. Car.
476, 44 S. E. 47, 1007; In re Reed’s
Estate, 82 Pa. St. 428.

1Lane v. Albertson, 78 App. Div.
607, 79 N. Y. S. 947.

2 Watrous v. Smith, 7 Hun (N. Y.)
544,

3 See post, ch. 30, art. 17.

#Rubottom v. Morrow, 24 Ind. 202,
87 Am. Dec. 324; Dortch v. Dortch,
71 N. Car. 224.

5 Cooper v. Williams, 109 Ind. 270,
9 N. E. 917; In re Rice’s Estate, 14
Phila. (Pa.} 325.
359 MANAGEMENT AND SETTLEMENT OF ESTATE § 403

in the course of his own business, and there was sufficient money
in the hands of the executor or trustee to pay the premium on the
policy, the loss will be charged to such executor or trustee.®

But the executor or trustee is only held to the exercise of rea-
sonable care in the preservation and protection of the property
of the estate in his hands, and is not chargeable with loss by fire,
to which his own negligence or bad faith has in no way con-
tributed.” Some testators insert a provision in their wills direct-
ing executors, trustees, and guardians to keep the property in-
sured, while others leave the matter to the discretion of such
officers, and direct that they shall not be held liable for loss on
account of failure to insure.®

6 Rubottom v. Morrow, 24 Ind. 202, vens v. Gage, 55 N. H. 175, 20 Am.
87 Am. Dec. 324, Rep. 191; Neff’s Appeal, 57 Pa. St.
7Campbell v. Miller, 38 Ga. 304, 91.
95 Am. Dec. 389; State v. Meagher, 8 See post, ch. 30, art. 18.
44 Mo. 356, 100 Am, Dec, 298; Ste-
CHAPTER XXI

PROVISIONS RESPECTING EXECUTORS, TRUSTEES AND GUARDIANS

SECTION SECTION
410. Appointment of executors. 418. Authority of. less than all ex-
411. Appointment of trustees. ecutors or trustees to act.
412. Appointment of guardians. 419.. Conflicting relations of executor
413. Death, resignation, renunciation, and trustee.
or relinquishment of executors 420. Authority and duties of execu-
and trustees. tors.
414. Liability of executors. 421. Authority and duties of trustees.
415. Liability of trustees. 422. Compensation of executors, trus-
416. Executor’s bond. tees and guardians. .

‘417. Trustee’s bond.

§ 410. Appointment of executors.—Wills are often made
for the sole purpose of naming an executor, and such wills are
generally held valid even though the executor renounces probate
thereof.*

At common law all persons except idiots and lunatics were
competent to act as executors; neither infancy, ignorance, non-
residence, coverture, intemperance, improvidence, vice, dishon-
esty, nor moral delinquency disqualified one for the office. And
in the absence of any statute expressly disqualifying any partic-
ular class of persons, or conferring a discretion upon the court
vested with the power of appointment, the rule will prevail that
courts have no discretion in respect to the issue of letters to the
persons nominated in the will, and the person appointed by the
will can not be rejected by the court except where the law ex-
pressly so provides.” In the absence of statutory regulation the
choice of the testator in the selection of an executor must be’
respected regardless of the moral character of the nominee. Fors

1Sumner v. Crane, 155 Mass. 483, 735, 41 L. R. A. ‘154, 74 Am. St. 17;
29 N. E. 1151, 15 L. R. A. 447. Stewart’s Appeal, 56 Maine 300.
2 Kidd v. Bates, 120 Ala. 79, 23 So. :

360
361 EXECUTORS, TRUSTEES AND GUARDIANS § 410

from the earliest times, it has been the rule that every person
may be an executor, saving only such as are expressly forbidden;
the rule being that all persons who were capable of making a
will were qualified to act as executors.®

The fact, however, that one is named in the will as executor,
does not make him so in fact, but only gives him the legal right
to become executor upon complying with the conditions required
by law.* He derives his right and title to the estate, as well as
his appointment, from the will, but his power of administration
over the estate does not become substantial until letters testa-
mentary authenticating his appointment and right have been is-
sued to him by the proper court. Such letters do not create the
executor nor confer any title upon him, but are simply the au-
thentic evidence of the power conferred by the will and which
existed before the letters issued. The issuing of letters testa-
mentary, and the qualifying of the executor are matters of form
and are for purposes of authentication, as well as to give the
stamp of legal approval and power to the appointment made by
the testator in his will.® .

A testator may nominate different executors for different ju-
risdictions in which his estate may be situated, or different ex-
ecutors as to different parts of his estate in the same jurisdic-
tion,® or he may name two or more, substituting one after
another in order, so that if the first dies or can not act, the next
may act, and so on.” But where several executors are nominated
together they-are presumably intended to be co-executors, all be-
ing thus legally regarded as an individual in place of a sole ex-
ecutor, and those living and competent to act at the time of the
testator’s death will be entitled to letters testamentary. The ap-
pointment of an executor may be constructive as well as express.
No particular form of appointment, nor the use of the word

3 Smith’s Appeal, 61 Conn. 420, 24 (Md.) 483, 25 Am. Dec; 313; Despard
Atl. 273, 16 L. R. A. 538n. v. Churchill, 53 N. Y. 192; Mordecai

4 Stagg v. Green, 47 Mo. 500. v. Boylan, 69 N. Car. 365.

5 Wood v. Cosby, 76 Ala. 557; 7In re Cornell, 1 Gibbons 1, 17
Stagg v. Green, 47 Mo. 500; Wank- Misc. 468, 41 N. Y. S. 255, 75 N. Y.
ford v. Wankford, 1 Salk. 299. St. 664; In re Edwards’ Estate, 12

6Hunter v. Bryson, 5 Gill & J. Phila. (Pa.) 85.
§ 411 WILLS 362
“executor,” is required. Any language adopted in the will which
expressly or by fair implication clothes a given party with the
authority and duties of an executor will be held to constitute such
appointment.®

In some jurisdictions the testator may delegate to some per-
son or persons named in the will or to the probate court the
power to nominate the executor.® This power to delegate the
appointment to a third person was valid at common law, and the
appointment when made by such third person will be the same
as if the testator had named such person in his will.*°

Where two or more persons have been named by a testator in
his will as executors thereof, and only one of them qualifies, that
one has all the authority under the will which would have vested
in all had they qualified.

If the testator fails to appoint an executor in his will, and by
such will directs that all of his estate shall go at once into the
hands of legatees, such direction will be nugatory and void as
against creditors or others adversely interested in his estate.”
Examples of provisions appointing executors will be found in
another part of this work.*

§ 411. Appointment of trustees.—The question of who
may act as trustee was discussed in a previous chapter.** In
creating a testamentary trust, the least important matter is the
designation of a trustee, as equity will never allow a trust to fail

8In re Ringot, 124 Cal. 45, 56 Pac.
781; Grant v. Spann, 34 Miss. 294;
In re Hill’s Estate, 102 Mo. App.
617, 77 S. W. 110; Hartnett v. Wan-
dell, 60 N. Y. 346, 19 Am. Rep. 194,
16 Abb. Pr. (N. S.) 383; Stone v.
Brown, 16 Tex. 425.

® Bishop v. Bishop, 56 Conn. 208, 14
Atl. 808; State v. Rogers, 1 Houst.
(Del.) 569; Wilson v. Curtis, 151
Ind. 471, 51 N. E. 913, 68 Am. St.
236; Brown v. Just, 118 Mich. 678, 77
N. W.. 263; Mulford v. Mulford, 42
N. J. Eq. 68, 6 Atl. 609; Hartnett v.

Wandell, 60 N. Y. 346, 19 Am. Rep.
194, 16 Abb. Pr. (N. S.) 383.

10 Kinney v. Keplinger, 172 Ill. 449,
50 N. E. 131; Wilson v. Curtis, 151
Ind. 471, 51 N. E. 913, 68 Am. St.
236.

11 Bodley v. McKinney, 9 Sm. & M.
(Miss.) 339; Phillips v. Stewart, 59
Mo. 491.

12 Newcomb v. Williams, 9 Metc.
(Mass.) 525.

13 See post, ch. 30, art. 19.

14 See ante, ch. 18, § 350.
363 EXECUTORS, TRUSTEES AND GUARDIANS § 411
for want of a trustee,*> but if discretionary powers are to be
exercised the trustee should not only be named, but provision
should be made for the appointment of his successor.*®

It is obvious that in most cases the purposes of the trust can
be best carried out where there is no relationship between the
trustee and the beneficiaries.*”

Where the will fails to designate a trustee, the trust will some-
times devolve upon the executor by implication.**

It may be advisable in many cases to appoint the same person
both executor and trustee. “The fact, therefore, that the same
“persons are executors and trustees, though it does not affect the
ultimate rights of parties beneficially interested, yet enables the
individuals clothed with this double character to act in the two
capacities with more ease and safety than they otherwise could.
As the funds are at all times under their own control, either in
the one capacity or the other, then, under the rule mentioned,
that the law considers that paid which it requires to be paid,
nothing remains for the executors and trustees to do, but to keep
accurate accounts, to charge and credit the one fund or the other,
according to every possible contingency, with moneys received
and debts and charges paid; and when the executorship account
is closed, and the statute of limitations has taken effect, then
the trust account will exhibit the trust fund, as directed to be
formed by the will.’’° It must be remembered, however, that
the trusteeship and executorship are two separate and distinct

15 Willis v. Alvey, 30 Tex. Civ.
App. 96, 69 S. W. 1035.

16 May v. May, 167 U. S. 310, 42 L.
ed. 179, 17 Sup. Ct. 824; Wilcox’s Ap-
peal, 54 Conn. 320, 8 Atl. 136.

17 Wilson y. Wilson, 145 Mass. 490,
14 N. E. 521, 1 Am. St, 477.

18 Perkins v. Lewis, 41 Ala. 649, 94
Am. Dec. 616; Pinney v. Newton, 66
Conn. 141, 33 Atl. 591; Anderson v.
Northrup, 30 Fla. 612, 12 So. 318;
Calvert v. Boullemet, 46 La. Ann.
1132, 15 So. 363; Codman v. Brigham,
187 Mass. 309, 72 N. E. 1008, 105 Am.

St. 394, 10 Prob. Rep. Ann. 49;
Wheeler v. Perry, 18 N. H. 307;
Shibla v. Ely, 6 N. J. Eq. 181; Close
v. Farmers’ L. & T. Co., 195 N. Y. 92,
87 N. E. 1005; Tinnin v. Womack, 54
N. Car. 135; In re Crawford, 21 Ohio
C. C. 554, 11 Ohio C. D. 605; Jasper
v. Jasper, 17 Ore. 590, 22 Pac. 152;
In re Sheets, 52 Pa. St. 257; In re
Hodges’ Estate, 63 Vt. 661, 22 Atl.
725.

19 Minot v. Amory, 2 Cush. (Mass.)
377.
§ 412 WILLS 364
offices,” and a bond is required to be given in each capacity.”*
Where the will does not appoint a trustee the court may, in some
cases, hold the heirs at law or distributees as trustees.2? Exam-
ples of clauses appointing trustees will be found elsewhere in

this work.?*

§412. Appointment of guardians.——Testators often ap-
point a guardian or guardians for the protection of those of
their beneficiaries who are legally incompetent to control them-
selves and their property. This power is founded upon the Stat-
ute of 12 Car. II, c. 24, § 8. By this statute the father alone
had the power to appoint a testamentary guardian for his child
by last will and testament,”* but modern statutes have broadened
the right considerably.”

The appointment of guardians by will is authorized by statute
in many states, and wills merely making such appointments have
been admitted to probate.*®

“There can be no valid testamentary appointment of a guardian
for an infant who already has a guardian whose guardianship has
not been revoked.*” But this rule does not apply where the two
guardianships do not conflict,"* nor where the former guardian
is ineligible to serve.”? | :

Where the will appoints the same person as guardian and trus-
tee, two separate and distinct offices are created.*°

20Daggett v. White, 128 Mass.
398; In re Higgins, 15 Mont. 474, 39
Pac. 506, 28 L. R. A. 116.

21Prior v. Talbot, 10 Cush.
(Mass.) 1.

22 Burgin v. Chenault, 9 B. Mon.
(Ky.) 285.

23 See post, ch. 30, art. 19.

24Hernandes v. Thomas, 50 Fla.
522, 39 So. 641,2 L. R. A. (N. S.)
203, 111 Am. St. 137, 7 Ann. Cas.
446; Fullerton v. Jackson, 5 Johns.
Ch. (N. Y.) 278.

25 Churchill v. Jackson, 132 Ga. 666,
64 S. E. 691, 49 L. R. A. (N. S.) 875,
Ann, Cas. 1913 E, 1203; McKinney v.

Noble, 37 Tex. 731; Sutton v. Har-
vey, 24 Tex. Civ. App. 26, 57 S. W.
879.

26 Wardwell v. Wardwell, 91 Mass.
518.

27 Magdeleine v. Mayor, 1 Mart.
(La.) 200; Copp v. Copp, 20 N. H.
284; Robinson v. Zollinger, 9 Watts
(Pa.) 169; Potts v. Terry, 8 Tex.
Civ. App. 3947 28 S. W. 122.

28 Kearney v. Brooklyn Industrial
School Assoc. &c., 1 Redf. Surr. (N.
Y.) 292.

29 Scobey v. Gano, 35 Ohio St. 550.

30Clark v. Anderson, 10 Bush
(Ky.) 99.
365 EXECUTORS, TRUSTEES AND GUARDIANS § 412

In some jurisdictions testamentary guardians are recognized
by statute to the extent only of giving them the preference of a
statutory appointment. Without such appointment, such guard-
ian, although appointed and named by the will, would have no
authority or control over the property or estate of the ward.**
A person designated by will as guardian of the minor children
of the testator, would, perhaps, if both parents of such children
were dead, succeed, by virtue of such appointment, to the nat-
ural guardianship of such children.** When a guardian for a
minor has been appointed by will, by its father or mother, such
guardian will generally be entitled to preference in appointment
over all others, without reference to his place of residence or
choice of such minor; but his appointment, duties and powers
shall, in all other respects, be governed by the law regulating
guardians not appointed by will.®* And if such testamentary
guardian fails or refuses to accept such trust it then becomes
the duty of the court to appoint some other competent person
as guardian.** Ifa testamentary guardian is appointed it is ad-
visable to give him all the powers of a trustee, or make him an
absolute trustee for the period of minority, including power to
sell, invest, and reinvest the estate from time to time, as he may
deem best. Another method is to give the property to the trustee
to pay the income to the mother to be applied for the maintenance,
support, and education of the minor children. This is sometimes
done without appointing a guardian at all; the persons of the
minors being commended to the care of a relative. Examples
of clauses appointing guardians and designating their powers may
be found in another chapter.**

§ 413. Death, resignation, renunciation or relinquishment
of executors and trustees.—Vacancies often occur by reason
of the death, resignation or renunciation of executors or trustees

81Lord v. Hough, 37 Cal. 657; Badenhoof v. Johnson, 11 Nev. 87;
Moore v. Christian, 56 Miss. 408, 31 Underhill v. Dennis, 9 Paige (N. Y.)

Am. Rep. 375. 202.
82Lord v. Hough, 37 Cal. 657; 34 Davidson v. Koehler, 76 Ind. 398,
Thomas v. Williams, 9 Fla. 289. 35 See post, ch. 30, art. 19.

83 Watson v. Warnock, 31 Ga. 716;
§ 413 WILLS 366
named in the will, and if the will fails to provide for suitable
successors, the duty of filling such vacancies devolves upon the
probate court. The testator may, however, expressly provide for
such a contingency by designating who shall act,** or he may pro-
vide that their appointment may be made by others, or by the
probate court.®”

By the common law, upon the death of an executor testate,
the executorship devolved upon his executor; and upon the death
of that executor testate, the trust passed to his executor, and so
on, so long as the chain of representation remained unbroken by
any intestacy; and upon the death of one or more joint executors
the trust devolved upon the survivors, and would ultimately pass
to the executor of the last survivor.**

An executorship, being a private office of trust named by the
testator, and not by the law, it follows that he can not be com-
pelled to accept, but may refuse to act, even if in the lifetime
of the testator he has agreed to accept the office.*® But an agree-
ment made with persons in interest before the death of the tes-
tator and contrary to his expressed wishes, with one named by
him as executor, to renounce the appointment for a considera-
tion, is void as against public policy.*° Asa matter of precaution
it might be well for the testator to consult with the person or
persons he desires to name to see if they are willing to accept
the trust. Where the trust is to continue for some time the will
should contain provisions for the relinquishment of the trust by
the trustees and for filling vacancies occasioned thereby. Forms
of provisions appointing new or substituted executors and trus-
tees may be found in another chapter.**

36 Tuckerman v. Currier, 54 Colo. 88 Crafton v. Beal, 1 Ga. 322;

25, 129 Pac. 210, Ann. Cas. 1914C,
599; Von Rosenberg v. Wickes, 50
Tex. Civ. App. 455, 109 S. W. 968.

37 Orr v. Yates, 209 Ill, 222, 70 N.
E, 731; Hite v. Hite, 133 Ky. 554, 118
S. W. 357; Edgerly v. Barker, 67 N.
H. 443, 32 Atl. 766; Jewett v.
Schmidt, 39 Misc. 502, 80 N. Y. S.
352; In re Boning’s Estate, 214 Pa,
19, 63 Atl. 296.

Wankford v. Wankford, 1 Salk. 299.

89 Steel v. Steel, 4 J. J. Marsh.
(Ky.) 231; Douglass v. Forrest, 4
Bing. 686; Doyle v. Blake, 2 Sch. &
Lef. 231,

40 Robertson v. McGeoch, 11 Paige
(N. Y.) 640; Davis v. Inscoe, 84 N.
Car. 396.

41 See post, ch. 30, art. 19,
§ 414

367 EXECUTORS, TRUSTEES AND GUARDIANS

§ 414. Liability of executors.—The care, prudence and
judgment which a man of fair and average capacity and ability
is accustomed to use in the transaction of his own business fur-
nishes the standard to govern an executor in the discharge of
his trust duties.** He will not be permitted to make private
profit in his dealings with the property of the estate,** and if he
assumes to act outside of his power under the law, he is a wrong-
doer and personally liable, in his natural capacity, to parties in-
jured.** He is personally liable for waste,*° or for conversion,*®
misapplication,*” or embezzlement of the assets of the estate.*®
An executor is chargeable with the loss or depreciation of assets
occasioned by the exercise of bad faith or the failure to use due
prudence and diligence ;** but he is not liable for losses where
he has acted in good faith and with due prudence and diligence
in the care and management of the estate."° But if the executor
is lenient or indulgent to the debtors of his decedent, and for-
bears to sue them, he acts at his peril, and incurs a personal liabil-

ity which may result in a serious loss.**

42In re Bush’s Estate, 89 Nebr.
334, 131 N. W. 602.

43 Jacoway v. Hall, 67 Ark. 340, 55
S. W. 12; Stitt v. Stitt, 205 Mo. 155,
103 S. W. 547; Parker v. Day, 155 N.
Y. 383, 49 N. E. 1046; Cox v. John,
32 Ohio St. 532.

44 Hankins v. Kimball, 57 Ind. 42.

43 McCracken v. McCracken, 6 T.
B. Mon. (Ky.) 342; Gordon v. West,
8 N. H. 444; In re Feierabend, 38
Misc. 524, 77 N. Y. S. 1106; In re
Montier’s Estate, 7 Phila. (Pa.) 491.

46 Miller v. Miller, 73 Md. 442, 21
Atl. 321; In re Buck’s Estate, 185
Pa. St. 57, 39 Atl. 821, 64 Am. St.
816.

47JTn re Meagley’s Estate, 39 App.
Div. 83, 56 N. Y. S. 503.

48 Connor v. Akin, 34 Ill. App. 431.

49 Eubank v. Clark, 78 Ala. 73; Ru-
bottom v. Morrow, 24 Ind. 202, 87
Am. Dec. 324; Henderson Trust Co.
v. Stuart, 108 Ky. 167, 55 S. W. 1082,

21 Ky. L. 1164, 48 L. R. A. 49;
Stone’s Succession, 31 La. Ann. 311;
Tuttle v. Robinson, 33 N. H. 104;
Lindsley v. Dodd, 53 N. J. Eq. 69, 30
Atl. 896; Brinckerhoff v. Farias, 52
App. Div. 256, 65 N. Y. S. 358; Smith
v. Smith, 79 N. Car. 455; Wilson’s Ap-
peal, 115 Pa. St. 95, 9 Atl. 473; In re
Hall’s Estate, 70 Vt. 458, 41 Atl. 508;
Davis v. Chapman, 83 Va. 67, 1 S. E.
472, 5 Am. St. 251;-Brewer v. Hut-
ton, 45 W. Va. 106, 30 S. E. 81, 72
Am. St. 804.

50 Waller v. Ray, 48 Ala. 468; Dyer
v. Jacoway, 50 Ark. 217, 6 S. W. 902;
In re Fernandez’s Estate, 119 Cal.
579, 51 Pac. 851; Messmore v. Stone,
6 Ky. L. 596; Stirling v. Lawrason,
31 La. Ann. 169; Conwill v. Living-
ston, 61 Miss. 641; Powell v. Hurt,
108 Mo. 507, 17 S. W. 985; Stevens
v. Gage, 55° N. H. 175, 20 Am. Rep.
191,

51 Condit v. Winslow, 106 Ind. 142,
§ 415 WILLS 368

An executor is not generally held liable for the negligence oz
waste committed solely by a co-executor.®? And, in the absence
of wilful misconduct or fraud, an executor will not be held re-
sponsible for losses where he acted under the advice of his at-
torney.** Testators often insert in their wills a clause for the
relief of the executor from liability where he acts in good faith’
‘in the management and settlement of the estate. Examples of
such clauses may be found in another chapter.**

§ 415. Liability of trustees—The principles governing
the liability of executors are alike applicable to testamentary
trustees. In the performance of his duties a trustee must act in
good faith,’ and exercise that care and diligence which an or-
dinary prudent man would exercise in the management of his
own affairs.°° He will not be held liable for mere mistakes or
errors of judgment, or for losses not attributable to his lack of
fidelity or failure to exercise reasonable care and prudence; but
he will be held liable for losses due to the exercise of authority
beyond the scope of that conferred,** or gross neglect of the du-
ties imposed upon him.*®

He is not permitted to use the advantages afforded by his office
to gain any benefit for himself at the expense of the cestui que
trust.°° If the trustee acquire any interest for himself which is

5 N. E. 751; Miller v. Steele, 64 Ind.
79. ‘
52 Ormiston v. Olcott, 84 N. Y. 339.
53In re Merritt’s Estate, 62 Mo.
150; Perrine v. Vreeland, 33 N. J.
Eq. 102; Thompson v. Brown, 4
Johns. Ch. (N. Y.) 619; Watkins v.
Stewart, 78 Va. 111.
54 See post, ch. 30, art. 19.
55Linsley v. Strang (Iowa), 126
N. W. 941; Morrow v. Saline County,
21 Kans. 484; Minneapolis Trust Co.
v. Menage, 73 Minn. 441, 76 N. W.
195; Freeman v. Cook, 41 N. Car.
373; Reynolds v. Pettyjohn, 79 Va.
827,
5¢ Bermingham v. Wilcox, 120 Cal.
467, 52 Pac. 822; Bourquin v. Bour-

qtin, 120 Ga. 115, 47 S. E. 639; King
v. Talbot, 40 N. Y. 76; Fahnestock’s
Appeal, 104 Pa. St. 46; Cunningham
v. Cunningham, 81 S. Car. 506, 62 S.
E. 845; Winder v. Nock, 104 Va.
759, 52S. E. 561, 3 L. R. A. (N. S.)
415.

57 Ellig v. Naglee, 9 Cal. 683; Taft
v. Smith, 186 Mass. 31, 70 N. E. 1031.

58 Gibney v. Allen, 156 Mich. 301,
120 N. W. 811; Pennington v. Seal,
49 Miss. 518.

59 Ellig v. Naglee, 9 Cal. 683; Moel-
ler v. Poland, 80 Ohio St. 418, 89 N.
E. 100.

60 Enslen v. Allen, 160 Ala. 529, 49
So. 430; Bermingham v. Wilcox, 120
Cal. 467, 52 Pac. 822; Teegarden v.
369 § 416

EXECUTORS, TRUSTEES AND GUARDIANS
adverse to that of the cestui que trust, such interest will be held
to inure to the benefit of the latter.*

The trustee can not shift his responsibility to others, but is
himself liable for loss due to the dishonesty, negligence, or mis-
management of agents or attorneys appointed by him, unless he
has exercised the care and discretion of an ordinary prudent
person in selecting such agents or attorneys.°? Some testators
insert a clause in the will expressly relieving the trustee from
liability for the misfeasance of agents.** Also it is quite com-
mon to insert a clause relieving the trustee from personal liability
for any loss except such as may be occasioned by the trustee’s
wilful neglect, default or misconduct. Examples of such clauses
may be found elsewhere in this work.®°

§ 416. Executor’s bond. In England, and in a few of the
states of this country, an executor is not required to give a bond
unless the circumstances require it. Thus he will be required to
give a bond in case he is a nonresident,” insolvent,®* or that his
financial circumstances are not such as to afford adequate security

for the due administration of the estate.
In a few other states the matter of requiring a bond of the

Lewis, 145 Ind. 98, 40 N. E. 1047, 44
N. E. 9; Linsley v. Strang (Iowa),
126 N. W. 941; Hayes v. Hall, 188
Mass. 510, 74 N. E. 935; Newman v.
Newman, 152 Mo. 398, 54 S. W. 19;
Boyd v. Hawkins, 37 N. Car. 304;
Ludington v. Patton, 111 Wis. 208,
86 N. W. 571.

61 Wiswall v. Stewart, 32 Ala. 433,
70 Am. Dec. 549; Cavagnaro v. Don,
63 Cal. 227; Broome v. Alston, 8 Fla.
307; Jarrett v. Johnson, 216 Ill. 212,
74 N. E. 756; Taylor v. Calvert, 138
Ind. 67, 37 N. E. 531; Morrow v. Sa-
line County, 21 Kans. 484; Bradford
v. Clayton, 39 S. W. 40, 18 Ky. L.
1043; Shirley v. Shattuck, 28 Miss.
13; Amherst College v. Ritch, 151 N.
Y. 282, 45 N. E. 876, 37 L. R. A. 305;

24—Tuomp. WILLS.

Brantly v. Kee, 58 N. Car. 332; Mul-
len v. Doyle, 147 Pa. St. 512, 23 Atl.
807; Cobb v. Trammell, 9 Tex. Civ.
App. 527, 30 S. W. 482.

63 Donaldson v. Allen, 182 Mo. 626,
81 S. W. 1151.

64 Q’Fallon v. Tucker, 13 Mo. 262.

65 Crabb v. Young, 92 N. Y. 56.

66 See post, ch. 30, art. 19.

67 Grigsby v. Cocke, 85 Ky. 314, 3
S. W. 418, 9 Ky. L. 12; Davis’ Suc-
cession, 12 La. Ann. 399; Van Wyck
v. Van Wyck, 22 Hun (N. Y.) 9;
Harberger’s Appeal, 98 Pa. St. 29.

68 Johns v. Johns, 23 Ga. 31.

69 Wood v. Wood, 4 Paige (N. Y.)
299; Freeman v. Kellogg, 4 Redf.
Surr. (N. Y.) 218.
§ 417 WILLS 370

executor is left to the discretion of the court.” In still others the
executor must give a bond unless the testator in his will has
directed otherwise. In the latter instance the direction amounts
merely to a power given the court to dispense with the bond
where it is deemed prudent to do so, but does not deprive the
court of the power to require a bond if it is deemed necessary,
or is demanded by one who is interested in the estate; but the
testator’s wishes in the matter will be respected unless good rea-
sons for disregarding them appear.”

In a few states, however, the necessity of giving a bond, at
least to secure the payment of debts, can not be dispensed with
by a testamentary direction. This seems to be the rule in Ar-
kansas, Delaware, Indiana, Iowa and Maryland. In many of
the states not requiring an executor to give a bond, a discrimina-
tion is made against nonresident executors, requiring them to
give bond.”* The amount of the bond to be given by the executor
and the number of sureties thereon is usually regulated by statute.
In most states the executor is required to give an additional
bond for the sale of real estate; his general bond not being liable
for the proceeds of such sale. The form and requisites of an
executor’s bond is usually prescribed. by statute.

§ 417. Trustee’s bond.—What was said in the preceding
section with reference to the executor’s bond will generally apply
to the bond-of a testamentary trustee. But in the matter of re-
quiring a bond where the will directs that none shall be given, a
lesser degree of strictness is required from the trustee. If the will
expressly directs that the trustee shall not be required to execute
a bond, the court has no power to require such bond, unless it be
in pursuance of some express statutory requirement,™* or unless

70 Bankhead v. Hubbard, 14 Ark. 72 Bowman v. Wootten, 8 B. Mon.
298. (Ky.) 67; Amiss v. Williamson, 17
71 Grigsby v. Cocke, 85 Ky. 314, 3 W. Va. 673. .
S. W. 418, 9 Ky. L. 12; Clark v. Niles, 73 Succession of Davis, 12 La. Ann.
42 Miss. 460; Freeman v. Kellogg, 4 399.
Redf. Surr. (N. Y.) 218; Bellinger 74Ex parte Kilgore, 120 Ind. 94, 22
v. Thompson, 26 Ore. 320, 37 Pac. N. E. 104,
714, 40 Pac. 229; Felton v. Sowles,
57 Vt. 382.
371 EXECUTORS, TRUSTEES AND GUARDIANS § 418
there is reason to apprehend that the safety of the estate requires
it.”> “Tt is undeniably true that trustees and trust estates are, by
the express terms of the statute, placed under the equitable con-
trol of the court having jurisdiction thereof, for the preservation
of the funds and carrying out the purposes of the trust, and that,
‘in a proper case, the court may, by virtue of its inherent chancery
jurisdiction over trust estates, require the execution of a bond
for the faithful administration of the trust.””°

The statutes now quite generally require testamentary trustees
to give bond, but it has been held that a statute requiring bonds
of executors and administrators does not apply to a trustee of a
trust created by will.” Where the executor appointed by the will
is appointed trustee also, he is required to give a separate bond
in his character as trustee.”

§ 418. Authority of less than all executors or trustees to
act.—Where there are several trustees appointed, and all
have accepted and are exercising the office, their powers, interests,
and authority are equal and indivisible; they can not act sepa-
rately, but must act as a unit,” unless the provisions of the will
permit a majority or other number less than all to act.*°

However, an act done by a less number than is required, may
be ratified by those who did not join in such act originally.**

It often becomes inconvenient for all the trustees to act, and
disagreements among them are not uncommon. A provision per-
mitting a majority or other number less than all to act would be
very serviceable in such cases. The occasion for such a provision

73 Ladd v. Ladd, 125 Ala. 135, 27
So. 924; Kerr v. White, 9 Baxt.
(Tenn.) 161; Foss v. Sowles, 62 Vt.
221, 19 Atl. 984.

76 Ex parte Kilgore, 120 Ind. 94, 22
N. E. 104.

77 Dingman v. Beall, 213 Ill. 238, 72
N. E. 729,

78 Deering v. Adams, 37 Maine 264;
McClernan v. McClernan, 73 Md. 283,
20 Atl. 908; McWilliams v. Gough,
116 Wis. 576, 93 N. W. 550.

79Hosch Lumber Co. v. Weeks,

123 Ga. 336, 51 S. E. 439; Coleman
v. Connolly, 242 Ill. 574, 90 N. E.
278, 134 Am. St. 347; Boston v. Rob-
bins, 126 Mass. 384; Loud v. Win-
chester, 52 Mich. 174, 17 N. W. 784;
Ham v. Ham, 58 N. H. 70.

80 Barney v. Chittenden, 2 Greene
(Iowa) 165; Ratcliffe v. Sangston,
18 Md. 383; Bascom v. Weed, 53
Misc. 496, 105 N. Y. S. 459.

81 Hill v. Peoples, 80 Ark. 15, 95
S. W. 990.
372

§ 419 WILLS

in the case of executors is not so urgent, as joint executors may,
within certain limits act independently, the act of any one, within
the scope of his authority, being considered the act of all.*? This
rule, however, does not apply where the power to sell real estate
vests in executors, but all who are acting at the date of the sale
must join in the conveyance.** In order to avoid questions where
less than all the executors act, the will should contain a provision
empowering a certain number less than all to act. Examples of
such provisions will be found in a subsequent chapter.**

§ 419. Conflicting relations of executor and trustees.—
Testators often make the executors trustees of a testamentary
trust by imposing duties beyond their duties as executors, so that
they will take as trustees as well as executors.** But it is some-
times difficult to determine whether the testator intended to con-
stitute the executor a trustee as well as an executor. If the acts
to be done or the powers to be exercised by the person appointed
are such as pertain solely to the office of an executor the ap-
pointee will have the sole and exclusive right to carry out the
provisions of the will in the capacity of an executor. But if the
testator has directed acts to be done and created powers to be
exercised such as do not pertain to the office of an executor, it is
the province and duty of the person named as executor to act
as trustee, and he may be held as such.** Where there is a doubt

82 Dwight v. Newell, 15 Ill. 333; Free School v. Fisher, 30 Maine 523;

Long v. Rodman, 58 Ind. 58; Gilman
v. Healy, 55 Maine 120; Devling v.
Little, 26 Pa. St. 502; Weir v.
Mosher, 19 Wis. 330.

83 Hannum v. Day, 105 Mass. 33;
Croft v. Williams, 88 N. Y. 384; Al-
exander v. McMurry, 8 Watts (Pa.)
504; Wright v. Dunn, 73 Tex. 293,
11 S. W. 330; Hart v. Rust, 46 Tex.
556.

84 See post, ch. 30, art. 17.

85 Perkins v. Lewis, 41 Ala. 649, 94
Am. Dec. 616; In re Delaney’s Estate,
49 Cal. 76; Calvert v. Boullemet, 46
La. Ann. 1132, 15 So. 363; Putnam

Codman v. Brigham, 187 Mass. 309,
72 N. E. 1008, 105 Am. St. 394, 10
Prob. Rep. Ann. 49; Close v. Farm-
ers’ L. & T. Co., 195 N. Y. 92, 87 N.
E. 1005; In re Sheets, 52 Pa. St. 257;
Wood v. Hammond, 16 R. I. 98, 17
Atl. 324, 18 Atl. 198; People’s Loan
&c. Bank v. Garlington, 54 S. Car.
413, 32 S. E. 513, 71 Am. Dec. 800;
In re Hodges, 63 Vt. 661, 22 Atl. 725.

86 O’Neal v. Beall, 10 B. Mon.
(Ky.) 272; Webber Hospital Assn. v.
McKenzie, 104 Maine 320, 71 Atl.
1032; Morrow v. Morrow, 113 Mo.
App. 444, 87 S. W. 590; Hayward v.
373 EXECUTORS, TRUSTEES AND GUARDIANS § 420

whether the executor is to act as such or as a trustee, the rule
is that the duty or trust devolves upon the executor, or upon
the trustee as executor, by virtue of his office of executor.*’

In order that there may be no doubt about the executor’s au-
thority to perform trust duties under the will, the testator should
impose such duties upon him in express terms, and vest title to
the trust property in him. But if the will in effect subjects the
property in the hands of the executor as such to certain trusts
to be carried out by him he will be deemed to hold the property
as trustee by virtue of his appointment as executor.** In order
to hold the executor as acting in both the capacity of an executor
and the capacity of a trustee, it must plainly appear that such
was the intention of the testator.®

§ 420. Authority and duties of executors.—As a general
rule the authority of the executor does not begin until probate
and letters issued to him.°® He has no power to intermeddle
with the estate, further than is necessary to preserve the same,
until after the issuing of letters testamentary, and if he should
do so he becomes, in effect, an executor de son tort. He holds
the estate as trustee for the legatees, creditors and parties inter-
ested under the will; and, pending the issuing of letters and his
qualifying and giving bond, is the legal representative of the
estate.

For the purposes for which he may intermeddle with the
estate before qualifying, the issuing to him of letters will relate
back as of the death of the testator. But this doctrine of rela-
tion will not be applied where its effect will be to divest a right

Spaulding, 75 N. H. 92, 71 Atl. 219; 83 App. Div. 276, 82 N. Y. S. 49;
Terry v. Smith, 42 N. J. Eq. 504, 8 Pomroy v. Lewis, 14 R. I. 349.

Atl. 886. 89 Howard v. American Peace Soc.,
87In re Crawford, 21 Ohio C. C. 49 Maine 288; Gandolfo v. Walker,
554, 11 Ohio C. D. 605. 15 Ohio St. 251; Clark v. Powell, 62

88 Angus v. Noble, 73 Conn. 56, 46 Vt. 442, 20 Atl. 597. ”
Atl. 278; Clifford v. Stewart, 95 90Thomas v. Mornissett, 76 Ga.
- Maine 38, 49 Atl. 52; Bean v. Com- 384; Good Samaritan Hospital v.
monwealth, 186 Mass. 348, 71 N. E. Mississippi Valley Trust Co., 137 Mo.
784; Campbell v. Clough, 71 N. H. App. 179, 117 S. W. 637.
181, 51 Atl. 668; Jewett v. Schmidt, 91 Shirley v. Healds, 34 N. H. 407.
§ 421 WILLS 374

which has legally vested in another between the death of the
testator and the grant of letter. It exists only where the act to
be validated is for the benefit of the estate.°?

One of the first duties of an executor is to bury the decedent,
and as this is usually done before letters issue, a reasonable and
judicious expenditure for this purpose will always be approved.”
Other duties which devolve upon the executor are to propound the
will for probate, collect assets, pay debts and legacies, prevent
waste, and such other duties as may be imposed by statute or by
the terms of the will.°* The scope of the executor’s powers and
duties, in the absence of statutory or testamentary provision
extending or limiting them, is similar to those of an administrator.
While an administrator derives his authority wholly from the
court and the law of his appointment, an executor’s power and
right to act is derived from his testamentary appointment; his
powers, under the law, are as great as those of an administrator,
and by the terms of the will may be made greater.” He does
not take title to real estate, or acquire any power or right of
possession therein, unless conferred by statute or testamentary
provision.*° The special powers that executors have as trustees
have already been considered.”

§ 421. Authority and duties of trustees.—The duty of a
testamentary trustee is to carry out the provisions of the will re-
specting the trust, in so far as this may be legally done, in accord-
ance with the rules governing the execution of trusts generally.
His duties and powers are to be ascertained from an inspection
of the will, and of the statutes, if any, which are applicable.”

92Crump v. Williams, 56 Ga. 590;
Gilkey v. Hamilton, 22 Mich. 283.

®8In re Galland’s Estate, 92 Cal.
293, 28 Pac. 287; McNeely v. Mc-
Neely, 50 La. Ann. 823, 24 So. 338;
Sweeney v. Muldoon, 139 Mass. 304,
31 N. E. 720; Patterson v. Patterson,
59 N. Y. 574, 17 Am. Rep. 384.

941 Willianis Executors (7th Am.
ed.), 362, 372.

95 Scott v. West, 63 Wis. 529, 24
N. W. 161, 25 N. W. 18.

96 Stewart v. Smiley, 46 Ark. 373;
Austin v. Chambers, 33 Okla. 40, 124
Pac. 310.

97 See Chap. 18.

98 Russell v. Peyton, 4 Ill, App. 473;
Murphy v. Delano, 95 Maine 229, 49
Atl. 1053, 55 L. R. A. 227; Burroughs
v. Gaither, 66 Md. 171, 7 Atl. 243;
Hackett v. Hackett, 67 N. H. 424, 40
Atl, 434; In re Fisk, 45 Misc. 298, 92
N. Y. S. 394; Carter v. Rolland, 11
Humph. (Tenn.) 333,
oo § 422

6)

EXECUTORS, TRUSTEES AND GUARDIANS

Thus the provisions of the will, and the law applicable thereto,
measure the extent of the trustee’s duties and powers respecting
the possession, control, and management of the trust estate,”
‘the investment of the trust funds,* the sale of trust property,”
and the payment or distribution of principal or income.’

A trustee-can not generally charge the estate by an executory
contract unless authorized to do so by statute or by the terms of
the will. But where a trustee has full power to manage and con-
trol an estate he may sell personal property without authority
being given by will or statute,® especially where such sale is neces-
sary to the execution of the trust.®

A trustee in whom there is vested discretionary powers in-
volving personal confidence can not delegate his powers or duties
to a stranger or a co-trustee, unless authorized to do so by will.”

§ 422. Compensation of executors, trustees and guardians.
—By the common law neither executors, trustees nor guardians
were entitled to compensation for their services as such, but a
more enlightened policy now generally prevails, and not only
are such officers allowed reasonable compensation for their labor,
time and expenses, but such compensation is made a first charge
against the estate in their hands. The testator may provide in
his will the compensation to be allowed such officers for their
services, and they will be bound thereby.®

The compensation of such officers, in the absence of a provision

29 Corse v. Corse, 72 Hun 39, 25
N. Y. S. 290, 55 N. Y. St. 461; In re
Sheets, 52 Pa. St. 257; Wood v. Ham-
mond, 16 R. I. 98, 17 Atl. 324, 18
Atl. 198.

1Garesche v. Levering Inv. Co.,
146 Mo. 436, 48 S. W. 653, 46 L. R.
A. 232.

2 Hackett v. Hackett, 67 N. H. 424,
40 Atl. 434.

3 Sells v. Delgado, 186 Mass. 25, 70
N. E. 1036.

4 Johnston v. Morrow, 28 N. J. Eq.
327; Parker v. Day, 155 N. Y. 383,
49 N. E. 1046.

5 Smith v. Ayer, 101 U. S. 320, 25
L. ed. 955; Leitch v. Wells, 48 N.
Y. 585.

6 Murphy v. Delano, 95 Maine 229,
49 Atl. 1053, 55 L. R. A. 227; Eld-
ridge v. Greene, 17 R. I. 17, 19 Atl.
1085.

7Binns v. La Forge, 191 Ill. 598,
61 N. E. 382.

8 Biscoe v. State, 23 Ark. 592; Ross
v. Conwell, 7 Ind. App. 375, 34 N. E.
752; In re Hopkins, 32 Hun (N. Y.)
618.
§ 422 WILLS 376

therefor in the will, is usually allowed by the court or fixed by
statute. It would seem that where, by the terms of the will,
the functions of an executor and of a trustee co-exist, and -the
same person is called upon to perform two distinct kinds of serv-
ice for each of which the law awards compensation, he should
receive compensation for both.? So where, under a will, the du-
ties of an executor as such are to be first performed and then
he is required to assume duties as a trustee, he will be entitled to
compensation in both capacities.° But where the functions of
executor and that of trustee are so blended that they are insep-
arable then but one compensation should be allowed.** But in
every instance the intention of the testator as gathered from the
will is decisive and must be given effect.” A testator may give the
executor or trustee a legacy in lieu of compensation, or provide
that he shall be entitled to no compensation outside his interest in
the estate, but an intention to supplement the usual compensation |
in this regard must clearly appear. Clauses fixing compensation
for executors, trustees and guardians will be found elsewhere in
this work.”

9 Baker v. Johnston, 39 N. J. Eq. N. J. L. 237; Johnson v. Lawrence,
493; Laytin v. Davidson, 95 N. Y. 95 N. Y. 154.
263. 12 Lansing v. Lansing, 45 Barb. (N.
10McAlpine v. Potter, 126 N. Y. Y.) 182, 1 Abb. Pr. (N. S.) 280, 31
285, 27 N. E. 475; In re Willets, 112 How. Pr. 55; Shippen v. Burd, 42
N. Y. 289, 19 N. E. 690. Pa. St. 461.
11 Everson v. Pitney, 40 N. J. Eq. 18 See post, ch. 30, art. 19.
539, 9 Atl 95; Brush v, Young, 28
CHAPTER XXII

MISCELLANEOUS PROVISIONS AND RECOMMENDATIONS

SECTION SECTION
430. Provision disposing of testator’s 433. Provisions respecting advance-
body. ments.
431. Disinheritance of heirs. 434, Ademption and satisfaction of
432. Provision for construction by legacies.
umpire. 435. Provision against void gift.

§ 430. Provision disposing of testator’s body.—The gen-
eral English and American authorities on the law regarding the
right of a testator to make disposition of his own body by will
are not very satisfactory. The view maintained by some of these
authorities is that in the absence of statutory provisions to the
contrary, there is no property in a dead body; that it is not a part
of the estate of the deceased person; and that a man can not
by will dispose of that which after his death will be his corpse.*
However, the weight of authority in this country holds that a
testator has a right to direct the manner in which his body shall
be disposed of after death,” and his directions in this respect
have generally been given effect.? In the absence of such direc-
tion the paramount right to bury the testator is in the surviving
husband or wife, or next of kin.*

It has been held that where the will makes no disposition of
the dead body of the testator, the surviving relatives, and not the
exccutor, have a right to the custody thereof for the purpose of

1Enos v. Snyder, 131 Cal. 68, 63 tigrew v. Pettigrew, 207 Pa. 313,

Pac. 170, 53 L. R. A. 221, 82 Am. St.
330, 6 Prob. Rep. Ann. 314; Williams
v. Williams, 20 Ch. Div. 659, 15 Cox
Cr. C. 39, 46 J. P. 726, 51 L. J. Ch.
385, 46 L. T. Rep. (N. S.) 275, 30
Wkly. Rep. 438.

2 Thompson v. Deeds, 93 Iowa 228,
61 N. W. 842, 35 L. R. A. 56; Pet-

56 Atl. 878, 64 L. R. A. 179, 99 Am.
St. 795, 9 Prob. Rep. Ann. 446.

3 Scott v. Riley, 16 Phila. (Pa.)
106, 40 Leg. Int. 382.

4 People v. St. Patrick’s Cathedral,
21 Hun (N. Y.) 184; Pettigrew v.
Pettigrew, 207 Pa. 313, 56 Atl. 878,
64 L. R. A. 179, 99 Am. St. 795.

377.
§ 431 WILLS 378

burial.’ Provisions respecting the disposal of testator’s body
after death may be found in another chapter.°

§ 431. Disinheritance of heirs.—As the right to dispose of
property by will is an inherent one, any person who is competent
to make a will can, as a general rule, make such disposition of
his property as he pleases, and may disinherit his children, and
his motives for so doing can not be questioned.’ But an heir
at law will not be disinherited except by express words in the
will or necessary implication arising therefrom.*®

There is an erroneous impression in the minds of many pe.-
sons that a testator must mention all of his children or relatives
in his will else it will be void. This notion is due, no doubt, to
the presumption, usually indulged, that the omission was unin-
tentional. In some jurisdictions, however, an omission to pro-
vide in the will for the children or for the issue of deceased
children of the testator, entitles them to take the same share in
the testator’s estate which they would have taken had he died
intestate, unless they were provided for by the testator in his life-
time or unless the omission was clearly intentional and not occa-
sioned by accident or mistake. Many cases strenuously insist
that an heir at law can be disinherited only by words clearly and
necessarily producing that effect; hence the necessity of using

5Enos v. Snyder, 131 Cal. 68, 63
Pac. 170, 53 L. R. A. 221, 82 Am.
St. 330.

6 See post, ch. 30, art. 20.

7 Taylor v. Cox, 153 Ill. 220, 38
N. E. 656; Addington v. Wilson, 5
Ind. 137, 61 Am. Dec. 81; In re Gold-
thorp’s Estate, 115 Iowa 430, 88 N.
W. 944; In re Rausch, 35 Minn. 291,
28 N. W. 920.

8 Connecticut Trust &c. Co. v. Hol-
lister, 74 Conn. 228, 50 Atl. 750; In
re Reid (Del.), 64 Atl. 822; Olcott
v. Tope, 213 Ill. 124, 72 N. E. 751;
Emmons v. Atchison, 13 Ky. L. 142;
Young v. Quimby, 98 Maine 167, 56
Atl. 656; Welsh v. Gist, 101 Md. 606,

61 Atl. 665; Guitar v. Gordon, 17
Mo. 408; Miller v. Colt, 32 N. J. Eq.
6; Langel’s Appeal, 154 Pa. St. 188,
26 Atl. 218; Dieter v. Shafter, 70 Vt.
150, 40 Atl. 100; Purdy v. Davis, 13
Wash. 164, 42 Pac. 520.

® Walker v. Parker, 13 Pet. (U. S.)
166, 10 L. ed. 109; Pendleton v. Lar-
rabee, 62 Conn. 393, 26 Atl. 482;
Wilder v. Holland, 102 Ga. 44, 29 S.
E, 134; Andrews v. Harron, 59 Kans.
771, 51 Pac. 885; Howard v. American
Peace Soc., 49 Maine 288; Mullarky
v. Sullivan, 136 N. Y. 227, 32 N. E.
762; Mathews v. Krisher, 59 Ohio St.
562, 53 N. E. 52; In re Stewart’s
Estate, 147 Pa. St. 383, 23 Atl. 599;
379 MISCELLANEOUS PROVISIONS § 432
clear and explicit language in expressing the testator’s intention
as to all his living children and the issue of any deceased child.
Some testators give their heirs at law a legacy of only a nominal
sum; but this is not always necessary, as in most jurisdictions it
need only appear by the will that the testator had not forgotten
the heir. To effectively disinherit an heir or next of kin a valid
disposition of the testator’s entire estate must be made by the
will, for if he should die intestate as to any portion thereof such
portion would pass to his heirs or next of kin under the laws of
intestate succession, regardless of a provision in the will exclud-
ing them from participation in a division of the property.” Dis-
inheritance of a husband, wife or descendant is permitted only
to a limited extent in some jurisdictions; hence it becomes im-
portant that the local statute be consulted before attempting to
exclude such persons from taking any share in the estate. Ex-
amples of clauses disinheriting heirs will be found elsewhere in
this work.”

§ 432. Provision for construction by umpire.—It is not
unusual for a testator to provide in his will that all questions
relative to the construction thereof are to be submitted to a cer-
tain designated person or persons,” such as his executors,’* who
shall act as umpire or arbitrator, and whose decisions, if fairly
and honestly made, will be final and binding on all parties in-
terested.** The fact that such umpire is interested in the residue
of the estate which may be increased or diminished by his deci-
sions does not disqualify him to act.*

Where, however, such umpire renders a decision involving a

Hoover v. Gregory, 10 Yerg. (Tenn.)
444; Wootton v. Redd, 12 Grat. (Va.)
196.

10 People’s Trust Co. v. Flynn, 44
Misc. 6, 89 N. Y. S. 706.

11 See post, ch. 30, art. 20.

12JTn- re Phillips’ Estate, 10 Pa.
Co. Ct. 374; Couts v. Holland, 48
Tex. Civ. App. 476, 107 S. W. 913.

18 Pray v. Belt, 1 Pet. (U. S.) 670,
7 L. ed. 309; American Foreign Mis-
sion Comrs. v. Ferry, 15 Fed. 696;
\

Greene v. Huntington, 73 Conn. 106,
46 Atl. 883, 5 Prob. Rep. Ann. 448;
Wait v. Huntington, 40 Conn. 9; In
re McAllister’s Estate, 15 Pa. Dist.
430.

14Greene v. Huntington, 73 Conn.
106, 46 Atl. 883, 5 Prob. Rep. Ann.
448; Moore v. Harper, 27 W. Va.
362.

15 American Foreign Mission Comrs.
v. Ferry, 15 Fed. 696.
§ 433 WILLS 380
clear abuse of his power, or where he commits a gross mistake
or error of judgment evincing partiality, corruption or prejudice,
the court will interfere and decide whether the construction
adopted by the umpire is correct.** Forms of clauses providing
for construction by umpires will be found in a subsequent

chapter.”

§ 433. Provisions respecting advancements.—As a gen-
eral rule where one dies testate the doctrine of advancements
does not apply, even in cases where the will does not dispose of
the entire estate.** And though the testator may have made ad-
vancements before making his will, they will not be charged
against the donee unless so provided in the will,” it being said,
“Tt is true that when a will is made, all previous advancements
are extinguished, unless the same are saved by will; and this is
held upon the ground that the testator has graduated his legacies
with reference to such prior advancements.”*® But when a tes-
tator provides in his will that his property shall descend the
same as if he had died intestate, prior advancements are to be
taken into account in the division of his estate.** And where he
directs certain gifts, or loans he may have made to be deducted
to equalize the shares of legatees or devisees, they must be treated
as advancements, though they would not have constituted ad-
vancements had the testator died intestate.”

A testamentary direction for the deduction of a debt from a
legacy can not be avoided by the legatee by showing that the
testator was mistaken as to the existence of the debt, or as to

16 Pray v. Belt, 1 Pet. (U. S.) 670,
7 L. ed. 309; Greene v. Huntington,
73 Conn. 106, 46 Atl. 883, 5 Prob. Rep.
Ann. 448; In re Frankenheimer, 130
App. Div. 454, 114 N. Y. S. 975.

17 See post, ch. 30, art. 17.

18 Green v. Speer, 37 Ala. 532; Hug-
gins v.-Huggins, 71 Ga. 66; Biedler
v. Biedler, 87 Va. 300, 12 S. E. 753.

19Trammel v. Trammel, 148 Ind.
487, 47 N. E. 925; Jones v. Richard-
son, 5 Metc. (Mass.) 247; Turpin v.

Turpin, 88 Mo. 337; Camp v. Camp,
18 Hun (N. Y.) 217.

20Trammel v. Trammell, 148 Ind.
487, 47 N. E. 925.

21Trammel v. Trammel, 148 Ind.
487, 47 N. E. 925; Raiford v. Raiford,
6 Ired. Eq. (N. Car.) 490; Stewart
v. Stewart, 15 Ch. Div. 539.

22 Black v. Whitall, 9 N. J. Eq.
572, 59 Am. Dec. 423; Porter’s Ap-
peal, 94 Pa. St. 332; Darne v. Loyd,
82 Va. 859, 5 S. E. 87, 3 Am. St. 123.
381 MISCELLANEOUS PROVISIONS § 434

the amount of it.2* Nor can the recitals in a will as to advance-
ments be disputed.** Where the testator provides in his will that
certain gifts made by him to, or debts due him by note or book
account, etc., from his children or others, shall be regarded as
advancements, they become so by virtue of the will.”

The executor has no right to charge interest upon an advance-
ment after the death of the testator unless such was the manifest
intention of the testator as gathered from the will.?* It is ad-
visable for the testator to take a promissory note in every case
of a loan, fixing therein the rate of interest, and direct in the will
whether interest is to cease with the testator’s death or continue
until final settlement of the estate. Provisions respecting ad-
vancements and interest on loans will be found elsewhere in
this: work.””

§ 434. Ademption and satisfaction of legacies.—Where
the thing given by will has, by some act of the testator, ceased to
exist in the form in which it is described in the will, so that on
the testator’s death there is nothing answering the description
of the legacy to be given to the legatee, the legacy is said to be
adeemed. Ademption, therefore, can only happen in cases of
specified legacies, since general or demonstrative legacies are not
dependent upon the existence of specific things, and are not af-
fected by the destruction or alteration of the subject of the gift.”*

Satisfaction is where the testator in his lifetime takes upon
himself duties he has imposed upon his executor in his will, and
gives the legatee what he has bequeathed to him by will, thus
satisfying the legacy himself, leaving nothing to be done after
his death in respect to such legacy.” Satisfaction is predicable
only of general legacies.*°

23Jn re Eichelberger’s Estate, 135 27 See post, ch. 30, art. 20.

Pa. St. 160, 19 Atl. 1006. 28 Gilbreath v. Alban, 10 Ohio 64;
24 McAlister v. Butterfield, 31 Ind. Smith’s Appeal, 103 Pa. St. 559.
25. 229 Burnham v. Comfort, 37 Hun

25Bacon v. Gassett, 13 Allen (N. Y.) 216.
(Mass.) 334; Langdon v. Astor, 16 30 Beck v. McGillis, 9 Barb. (N.
N. Y. 9. Y.) 35.

26 Taylor v. Taylor, 145 Mass. 239,
14.N. E. 101. .
§ 434 WILLS 382

Ademption, in effect, amounts to a revocation of the will pro
tanto.** A specific legacy is adeemed by the extinction of the
particular article bequeathed. In such case ademption becomes
solely a question of identity; and when the property bequeathed
is lost, destroyed, or disposed of in the lifetime of the testator,
or its form so changed that it can not be identified when the will
goes into effect, a specific legacy is said to be adeemed.*”

A distinction exists between the bequest of a thing in specie
and the bequest of its proceeds; in the one case the sale of the
article will work an ademption of the bequest, in the other it
will not.”

There is an arbitrary doctrine which originated in equity, some-
times called ademption by advancement, in which, where a father,
or one who stands in loco parentis to a child or grandchild, having
by will given such child a legacy, afterward, in his lifetime, ad-
vances such child, as a marriage portion or otherwise. Such
advancement is held to constitute a complete ademption of the
legacy whether the portion so advanced was larger than, equal
to, or smaller than the legacy.** The rule is that where a parent,
or other person in loco parentis, bequeaths a legacy to a child or
grandchild, and afterward, in his lifetime, gives a portion, or
makes a provision for the same child or granchild, without ex-
pressing it to be in lieu of the legacy, if the portion so received,
or the provision made, be equal to, or exceed the amount of the
legacy; if it be certain and not merely contingent; if no other
distinct object be pointed out; and if it be ejusdum generis, then
it will be deemed an ademption of the legacy. The ground of this
doctrine seems to be, that every such legacy is to be presumed as
intended by the testator to be a portion for the child or grandchild,

1Kenaday v. Sinnot, 179 U. S.
606, 45 L. ed. 339, 21 Sup. Ct. 233;
White v. Winchester, 6 Pick. (Mass.)
48; Ford v. Ford, 23 N. H. 212,

32Clayton v. Akin, 38 Ga. 320, 95
Am. Dec. 393; Weston v. Johnson,
48 Ind. 1; Starbuck v. Starbuck, 93
N. Car. 183; Smith’s Appeal, 103 Pa.
St. 559; Hoke v. Herman, 21 Pa. St.
301; Hood v. Haden, 82 Va. 588.

33 McNaughton v. McNaughton, 34
N. Y. 201; Nove v. Vannoy, 6 Jones
Eq. (N. Car.) 185; Warren v. Wig-
fall, 3 Desaus. (S. Car.) 47.

34 Story Eq. Jur. §§ 1110, 1112, 1113,
1118; Williams Executors, 1332;
Weston v. Johnson, 48 Ind. 1; Evans
v. Beaumont, 4 Lea (Tenn.) 599,
383 MISCELLANEOUS PROVISIONS § 435

whether so called or not; and that, if he afterward advances the
same sum, he does it to accomplish his original object, as to a
portion; and that under such circumstances it ought to be deemed
an intended satisfaction or ademption of the legacy, rather than
as an intended double portion.®

While a legacy may be adeemed by implication, when the
testator stands in loco parentis to the legatee, there is no rule
of law that prohibits a legacy from being satisfied by advance-
ments, by express agreement, even though the legatee be a
stranger.*°

Where the testator, in his lifetime, makes a conveyance to the
devisee, of lands specifically devised, such conveyance is both a
satisfaction and ademption of the devise.** The satisfaction of
a general legacy depends upon the intention of the testator im-
plied from his acts,** or by his testametary declarations,*® but
the ademption of a specific legacy is effected by the extinction of
the thing or fund bequeathed, and the intention that the legacy
should fail is presumed.*® However, it is not safe to depend
upon presumptions to effect the testator’s purpose, either in the
case of ademption or satisfaction, but suitable provision therefor
should be made in the will. Examples of such provisions will
be found in another part of this work.**

§ 435. Provision against void gift—We have seen that, in
the absence of a residuary clause, the property which is the sub-
ject of a void gift descends as in case of intestacy.“ But where
there is a valid general residuary clause void legacies pass under
such residuary clause to the residuary legatees.** Such residuary

852 Story Equity, §§ 1111-1112;
Weston v. Johnson, 48 Ind. 1.

36 Robbins v. Swain, 7 Ind. App.
486, 34 N. E. 670; Richards v. Hum-
phreys, 15 Pick. (Mass.) 133.

37 Marshall v. Rench, 3 Del. Ch.
239; Haselwood v. Webster, 82 Ky.
409, 6 Ky. L. 376; Webb v. Jones, 36
N. J. Eq. 163.

38 Hayward v. Loper, 147 Ill. 41, 35
N. E. 225; Richards v. Humphreys,

15 Pick. (Mass.) 133; Allen v. Allen,
13 S. Car. 512, 36 Am. Rep. 716.

39 Security Co. v. Brinley, 49 Conn.
48; Lee v. Boak, 11 Grat. (Va.) 182.

40 Kenaday v. Sinnott, 179 U. S.
606, 45 L. ed. 339, 21 Sup. Ct. 233.

41 See post, ch. 30, art. 20.

42 See ante, ch. 22, § 435.

483 Dulany v. Middleton, 72 Md.
67, 19 Atl. 146; In re Allen, 151 N.
Y. 243, 45 N. E. 554; Davis v. Hutch-
§ 435 WILLS 384

clause, however, must contain apt words in order to carry such
property.**

If, however, there is a specific gift over of the property which
was the subject of the void gift, in case of the failure of such
gift, effect will be given to this specific provision, and the prop-
erty given will pass neither under the residuary clause nor as in-
testate property.* Such gift over in the event of a failure of the
original gift is good,* and it is thought that the use of such a pro-
vision has the effect to deter persons who might otherwise be
tempted to attack the original gift. A provision is frequently
inserted in the will to the effect that if one portion of the will
shall prove illegal and void, other portions are not to be impaired
thereby.*?

ings, 15 Ohio C. C. 174, 8 Ohio C. D. 45 Hamlin v. Mansfield, 88 Maine

52. 131, 33 Atl. 788; In re White’s Estate,
44 Giddings v. Giddings, 65 Conn. 174 Pa. St. 642, 34 Atl. 321.

149, 32 Atl. 334, 48 Am. St. 192; Mil- 46 Onderdonk v. Onderdonk, 127 N.

waukee Protestant Home vy. Becher, Y. 196, 27 N. E. 839.

87 Wis. 409, 58 N. W. 774, 47 See post, ch. 30, art. 14.
CHAPTER XXIII

EXECUTION OF WILLS

SECTION SECTION

440. Requisites of execution in gen- 448. Competency of attesting wit-
eral, nesses.

441, Testator’s knowledge or under- 449, Attestation at the request of tes-
standing of contents of will. tator.

442, Signature of testator. 450. Signing by witnesses in presence

443. Signature of testator’s name by of testator.
another. 451. Witnesses signing in presence of

444, Location of signature. each other,

445. Publication of will. 452. Alterations and additions.

446. Attestation by witnesses. 453. Execution of a holographic will.

447. Attestation clause. 454, Execution of a nuncupative will.

§ 440. Requisites of execution in general—The statutes
of the various states of this country prescribe certain formalities
in the execution of a will to insure its genuineness. The pur-
pose of these statutory formalities is to provide against false
and fraudulent wills, and to afford means of determining their
authenticity. These statutes are largely copied from the cele-
brated Statute of Frauds, 29 Car. II, ch. 3. In some of the
states this statute has been held to be part of the common law;
in others, however, it has been substantially re-enacted. In Eng-
land, the whole subject is regulated by the statute, 1 Vict., ch. 26,
and which statute has also been liberally copied by our legisla-
tures. The formalities required, being entirely statutory, are
necessarily different in the different states.”

The formalities prescribed by statute must be strictly observed,
otherwise the instrument will be inoperative as a will.’ All the

1In re Seaman’s Estate, 146 Cal. 455, 80 Pac. 700, 106 Am. St. 53; Rus-
455, 80 Pac. 700, 106 Am. St. 53. sell v. Switzer, 63 Ga. 711; Senn v.
2Clark v. Turner, 50 Nebr. 290, 69 Greundling, 218 Ill. 458, 75 N. E.
N. W. 843, 38 L. R. A. 433. See 1020; Herbert v. Berrier, 81 Ind. 1;

also chap. 28. Clay v. Layton, 134 Mich. 317, 96 N.
3In re Seaman’s Estate, 146 Cal. W. 458; Tobin v. Haack, 79 Minn.
385

25—Tuomp. WILLS.
§ 440 WILLS 386

formalities prescribed by the statute are of equal importance,*
and the court has no discretion to dispense with any of them,’ or
supply a defect caused by a failure to comply with some of them.*®
The rule that the intention of the testator must govern, which
applies to the interpretation of wills, does not apply to their
execution.”

The formalities usually required for the execution of an or-
dinary written or English will are that it (1) shall be in writing,
(2) signed by the testator or some one in his presence and by his
direction, and (3) witnessed by a designated number of witnesses.
In some states, however, less formality has been required for a
will of personalty than of realty. But where the will covers
both real and personal property, and is invalid as to the realty,
it will be ineffective to carry the personality,® unless it clearly
appears that the provisions relating to each kind of property

are separate.”

In the absence of a statutory provision making the date a
material part of the will, its omission or an erroneous date does

not invalidate the will.

Nor is a will rendered invalid by a failure to place a revenue
stamp thereon, although the statute requires such stamp.”
A seal is not essential to the validity of a will unless specially

required by statute.*

101, 81 N. W. 758; Ludlow v. Lud-
low, 36 N. J. Eq. 597; In re McMil-
len, 12 N. Mex. 31, 71 Pac. 1083; In
re O’Neil’s Will, 91 N. Y. 516; Hei-
denheimer v. Bauman, 84 Tex. 174,
19 S. W. 382, 31 Am. St. 29.

4 In re Noyes’ Estate, 40 Mont.
178, 105 Pac. 1013.

5 Doran v. Mullen, 78 Ill. 342.

6 Robson v. Jones, 3 Del. Ch. 51.

7TEstate of Walker, 110 Cal. 387,
42 Pac. 815, 1082, 30 L. R. A. 460, 52
Am. St. 104.

8 Western Maryland College v. Mc-
Kinstry, 75 Md. 188, 23 Atl. 471;
Marston v. Marston, 17 N. H. 503,
43 Am. Dec. 611.

9Kendall v.
(Mass.) 217.

10 Devecmon v. Devecmon, 43 Md.
335; Orgain v. Irvine, 100 Tenn. 193,
43 S. W. 768.

11 Wright v. Wright, 5 Ind. 389;
Lange v. Wiegand, 125 Mich. 647, 85
N. W. 109; Matter of Haviland, 17
Misc. 193, 40 N. Y. S. 973, 2 Gibbons
75, 75 N. Y. St. 372.

12 Werstler v. Custer, 46 Pa. St.
502.

18 Doe v. Pattison, 2 Blackf. (Ind.)
355; Avery v. Pixley, 4 Mass. 460;
In re Diez’s Will, 50 N. Y. 88; Grubbs
v. McDonald, 91 Pa. St. 236.

Kendall, 24 Pick.
387 EXECUTION § 441

§ 441. Testator’s knowledge or understanding of contents
of will.—It is essential to the validity of a will that the tes-
tator should know and understand the contents and meaning of
the instrument ;** but the fact that he has an erroneous opin-
ion with regard to their legal effect and operation does not ren-
der the will invalid** The testator will be presumed to have
knowledge of the contents of the will where it is read over to or
by him,** but if it appear affirmatively that he did not read it,
or that it was not read to him, it must be shown that its contents
were in some manner known to him.” If the will is executed
substantially in accordance with the testator’s instructions it will
be valid though not read by or to him.*

Where the testator is unable to read his will because of illiter-
acy, blindness, or other infirmity, his knowledge of its contents
must be shown.”® In such case the will should be read aloud to
the testator in the presence of the witnesses and a statement that
this was done inserted in the attestation clause.*® Where the
testator is aged and feeble-minded affirmative proof is often
required that the contents of the will were known to him and
that the will was his spontaneous act.’** Where the testator is
unable to read, write, or speak, there must be proof, not only
that the will was executed by the testator, but that his mind

vaccompanied the act.”?7_ A will is valid though written in a lan-
guage unknown to the testator, if he understood its contents.”

14In re De Castro’s Witl, 32 Misc.
193, 66 N. Y. S. 239; Tompkins v.
Tompkins, 1 Bailey (S. Car.) 92, 19
Am. Dec. 656.

15 Munnikhuysen v. Magraw, 35
Md. 280:

16 Atter v. Atkinson, L. R. 1 P. &
D. 665, 20 L. T. Rep. (N. S.) 404.

17 Day v. Day, 3 N. J. Eq. 549.

18Day v. Day, 3 N. J. Ea. 549;
Crumb’s Will, 2 N. Y. S. 744, 6 Dem.
Sur. 478, 18 N. Y. St. 254; Hess’ Ap-
peal, 43 Pa. St. 73, 82 Am. Dec. 551.

19 Brown v. Brown, 3 Conn. 299, 8

Am. Dec. 187; Davis v. Rogers, 1
Houst. (Del.) 44; Clifton v. Murray,
7 Ga. 564, 50 Am. Dec. 411; Sechrest
v. Edwards, 4 Metc. (Ky.) 163; Lyons
vy. Van Riper, 26 N. J. Eq. 337; Roth-
rock v. Rothrock, 22 Ore. 551, 30 Pac.
453.

20 Weir v. Fitzgerald, 2 Bradf. Sur.
(N.-Y.) 42. ;

21 Jarman on Wills (6th ed. Big.),
* 36.

22 Rollwagon v. Rollwagon, 63 N.
Y. 504,

23 Gerbrich v. Freitag, 213 Ill. 552,
§ 442 WILLS 388

§ 442. Signature of testator.—The statutes almost uni-
versally require the will to be signed by the testator, and where
such is the requirement the instrument is not operative as a will
for any purpose until the signature of the testator is affixed to
it. It has been held not necessary that the testator should sign
the will in the presence of the subscribing witnesses, though if
this is not done he should acknowledge such signature in their
presence.* But where the execution and attestation are parts of
one transaction it has been held that the signature of the testator
need not precede those of the witnesses.” There are cases, how-
ever, which hold that the signature of the testator must precede
attestation and subscription by the witnesses.”*

The testator may sign the will by a mark and it will be suffi-
cient notwithstanding he was able to write; and this is true al-
though his name does not appear on the face of the will, or some
name other than his appears thereon.” But the mark, whatever
it be, must be made with the intent to execute the will by such

mark.?8

Where the place for the signature is not fixed by statute, sign-
ing below the attestation clause, or before the date, or after a

blank space does not invalidate a wil

i

The fact that another person guided the hand of the testator

73 N. E. 338, 104 Am. St. 234; Hos-
hauer v. Hoshauer, 26 Pa. St. 404;
In re Arneson, 128 Wis. 112, 107 N.
W. 21.

24 Moore v. Stephens, 97 Ind. 271.

25Q’Brien v. Galagher, 25 Conn.
229; Gibson v. Nelson, 181 Ill, 122,
54 N. E. 901, 72 Am. St. 254; Lacey
v. Dobbs, 63 N. J. Eq. 325, 50 Atl.
497, 92 Am. St. 667, 55 L. R. A. 580;
Cutler v. Cutler, 130 N. Car. 1, 40 S.
E. 689, 89 Am. St. 854, 57 L. R. A.
209; Miller v. McNeill, 35 Pa. St.
217, 78 Am. Dec. 333; Kaufman v.
Caughman, 49 S. Car. 159, 27 S. E.
16, 61 Am. St. 808.

26 Reed v. Watson, 27 Ind. 443;

Chisholm v. Ben, 7 B. Mon. (Ky.)
408; Chase v. Kittredge, 11 Allen
(Mass.) 49, 87 Am. Dec. 687; Scher-
merhorn v. Merritt, 123 Mich. 310,
82 N. W. 513, 83 N. W. 405; In re
Irvine, 206 Pa. 1, 55 Atl. 795; Fowler
v. Stagner, 55 Tex. 393; Flood v.
Kerwin, 113 Wis. 673, 89 N. W. 845.

27In re Guilfoyle, 96 Cal. 598, 31
Pac. 553, 22 L. R. A. 370; Rook v.
Wilson, 142 Ind. 24, 41 N. E. 311,
51 Am. St. 163.

28In re Plate’s Estate, 148 Pa. St.
55, 23 Atl. 1038, 33 Am. St. 805.

29 Flood v. Pragoff, 79 Ky. 607, 3
Ky. L. 372; Younger v. Duffie, 94 N.
Y. 535, 5 Civ. Proc. Rep. 84, 46 Am.
Rep. 156,
389 EXECUTION § 443
when the latter signed the will does not render the signature
invalid.*°

It matters not how imperfect or illegible the testator’s signa-
ture may be, it will be a sufficient signature if he intended it as his

signature.**

§ 443. Signature of testator’s name by another.—In the
absence of an express statute authorizing a person other than
the testator to sign the will for the testator, the signature must be
made by the testator.** But many statutes provide that under
certain conditions and in a specified manner another may sign the
will for the testator and in his stead.**

The conditions generally required by these statutes are that
(1) such other person must sign the will in the presence of the
testator, and (2) that he must sign the will at the express direc-
tion of the testator. The testator must be physically present
when his name is signed, and must be conscious of what is
taking place.** It has been held that the subscription of the tes-
tator’s name by another without the addition of such other’s
name is a valid execution,®* but under some statutes, if the name
of the testator was signed by another, the person signing must
subscribe his own name as a witness, and state that he subscribed

the testator’s name at his request.*®

30 Vines v. Clingfost, 21 Ark. 309;
In re Allen’s Will, 25 Minn. 39; Shee-
han v. Kearney, 82 Miss. 688, 21 So.
41, 35 L. R. A. 102; In re Miller’s
Estate, 37 Mont. 545, 97 Pac. 935;
Fritz v. Turner, 46 N. J. Eq. 515, 22
Atl. 125; Wood v. Rhode Island Hos-
pital Trust Co., 27 R. I. 295, 61 Atl.
757.

31 Word v. Whipps, 16 Ky. L. 403,
28 S. W. 151; In re Plate’s Estate,
148 Pa. St. 55, 23 Atl. 1038, 33 Am.
St. 805.

32In re McElwaine’s Will, 18 N.
J. Eq. 499.

33 Riley v. Riley, 36 Ala. 496; In
re Dombrowski’s Estate, 163 Cal. 290,

The statutes generally re-

125 Pac. 233; In re Toomes’ Estate,
54 Cal. 509, 35 Am. Rep. 83; Elston
v. Montgomery, 242 Ill. 348, 90 N. E.
3, 26 L. R. A. (N. S.) 420; Herbert
v. Berrier, 81 Ind. 1; Berst v. Moxom,
163 Mo. App. 123, 145 S. W. 857;
Haynes v. Haynes, 33 Ohio St. 598,
31 Am. Rep. 579; Peake v. Jenkins,
80 Va. 293; Jenkins’ Will, 43 Wis.
610.

34Dunlop v. Dunlop, 10 Watts
(Pa.) 153; Chappell v. Trent, 90 Va.
849, 19 S. E. 314.

35JIn re Dombrowski’s Estate, 163
Cal. 290, 125 Pac. 233.

36 Walton v. Kendrick, 122 Mo. 504,
27 S. W. 872, 25 L. R. A. 701.
§ 444 WILLS 390

quire that the signature by another be at the express direction
of the testator.*”

While the most common and safe form of direction by the
testator is one given in so many words, yet the express direction
may be given by the testator’s adoption of a suggestion of some
other person as his own.** But the mere knowledge by the
testator that some one is signing his name to the will and makes
no objection does not amount to an express direction.”

Under some statutes, physical and mental inability of the
testator to sign the will himself is sufficient grounds for permit-
ting another to sign for him.*° In the absence of special statutory
restriction, a subscribing witness, a beneficiary, or any other
properly authorized person, may sign the will for the testator.*
Where the will is to be signed by another for the testator the
best method is for such other to write the name of the testator,
followed by a statement that it was written by subscriber, naming
such subscriber, in the presence of the testator and at his express
request. The statutes of some states expressly require some
such accuracy.*”

§ 444. Location of signature—The proper place for the
signature of the testator is at the foot or end of the will, and
this is made a requirement by statute in many states.** The
words “end of the will” in the statute of wills refer to the logical
end, and apply to the time as well as the place of signature.** The

37 McCoy v. Conrad, 64 Nebr. 150,
89 N. W. 665; Greenough v. Green-

Toomes’ Estate, 54 Cal. 309, 35 Am.
Rep. 83; Herbert v. Berrier, 81 Ind.

ough, 11 Pa. St. 489, 51 Am. Dec.
567.

38 Mullin’s Estate, 110 Cal. 252, 42
Pac. 645,

39 Waite v. Frisbie, 45 Minn. 361,
47 N. W. 1069; Isaac v. Halderman,
76 Nebr. 823, 107 N. W. 1016.

40In re Baumann’s Will, 85 Misc.
656, 148 N. Y. S. 1049; Diehl v.
Rodgers, 169 Pa. St. 316, 32 Atl. 424,
47 Am. St. 908.

41 Riley v. Riley, 36 Ala. 496; In re

1; Trembly v. Trembly (Ohio S. Ct.
Com.), 11 Wkly. L. B. Supp. 50; Ex
parte Leonard, 39 S. Car. 518, 18 S.
E, 216, 22 L. R. A. 302.

42 See ch. 28.

43In re Fields’ Will, 204 N. Y. 448,
97 N. E. 881, 39 L. R. A. (N. 5.)
1060, Ann. Cas. 1913-C, 842n; In re
Taylor’s Estate, 230 Pa. 346, 79 Atl.
632, 36 L. R. A. (N. S.) 66.

44In re Foley’s Will, 76 Misc. 168,
136 N. Y. S. 933.
391 EXECUTION § 444
purpose of these statutes requiring testator's signature at the end
of the will is to prevent fraud by unauthorized addition.*

Where testator’s signature is required to be at the end of the
will, the placing of a part of a testamentary disposition below
the signature will vitiate the will; but where the part below the
signature is unimportant or immaterial, that part only will be
stricken out, leaving the rest unaffected.*® Ordinarily, no terms
will be considered as part of the will which are written below
the signature ;*7 and where the signature of the testator and the
attestation clause were placed at the end of certain printed mat-
ter on the first page, it was held that testamentary matter on
the second page without any signature rendered the will wholly
defective.“* If the signature is placed at the foot or end of the
will, it is more clearly to be inferred that it was intended as an
authentication of the will as a whole.**:

The requirement that the testator’s signature shall be at the
end of the will does not mean that a blank space may not
intervene between the end of the testamentary provisions and
the signature.°? Where a will completely filled a page of legal
cap paper, and the testator’s signature was in the margin, it was
held to be a sufficient signing despite the space above the sig-
nature.**

One signature of the testator, properly placed, is sufficient, and
other signatures by him improperly placed are no part of the
will.”

The signature of the testator should generally be placed above
the attestation clause,** but it has been held that the signature

45In re Gibson’s Will, 128 App.

Div. 769, 113 N. Y. S. 266.

46In re Gibson’s Will, 128 App.

Div. 769, 113 N. Y. S. 266.

-47In re McCullough’s Estate, Myr.

Prob. (Cal.) 76; Owens v. Bennett,
5 Har. (Del.) 367.

48In re Diehl’s Will, 112 N. Y. S.
717,

42In re Seaman’s Estate, 146 Cal.
455, 80 Pac. 700, 106 Am. St. 53.

50In re Blake’s Estate, 136 Cal.

306, 68 Pac. 827, 89 Am. St. 135;
Mader v. Apple, 80 Ohio St. 691, 89
N. E. 37, 23 L. R. A. (N. S.) 515,
131 Am. St. 719; In re Morrow’s
Estate, 204 Pa. 479, 54 Atl. 313.

51 Graham v. Edwards, 162 Ky. 771,
173 S. W. 127.

52 Thompson v. Carruth, 220 Mass.
77, 107 N. E. 395.

53 Barnes v. Chase, 208 Mass. 490,
94 N. E, 694,
§ 445 WILLS 392
beneath such clause is a sufficient compliance with the provision
that the signature must be at the end of the will.°*

Where a will consists of more than one sheet of paper, it is
considered the better practice, in addition to the regular signing
at the end of the will, to have the testator write his name or

initials on each sheet of the manuscript for identification.”

$445. Publication of will—Publication, as the term is
used in the law of wills, is the declaration or act of the testator,
at the time of signing or acknowledging his signature, manifest-
ing his intention to adopt the instrument as his will; and any
communication indicating to witnesses that the testator intends
to give effect to a paper as his will by word, sign, motion, or con-
duct is sufficient in law to constitute a publication.*®

Publication is not necessary to the validity of a will unless
made so by statute.** But where the statute requires that the
testator publish or declare the instrument to be his will to the
attesting witnesses, it must be made in the manner and form
required.°®

As a general rule it is not necessary for the subscribing wit-
nesses to see the testator subscribe his name to the will;®* but
they should at least see his signature where they do not see him
sign, and he should acknowledge to them that the signature so
affixed is his signature to the paper as his will.°° In some states
the statute requires that the testamentary character of the instru-

54In re Busch’s Will, 87 Misc. 239,
150 N. Y. S. 149; In re Kunkler’s
Will, 147 N. Y. S. 1094.

55 Jones v. Habersham, 63 Ga. 146.

56 Rogers v. Diamond, 13 Ark. 474;
Harp v. Parr, 168 Ill. 459, 48 N. E.
113; In re Ayers’ Estate, 84 Nebr. 16,
120 N. W. 491; In re Claflin’s Will,
73 Vt. 129, 50 Atl. 815, 87 Am. St.
693. ‘

57 Barnewall v. Murrell, 108 Ala.
366, 18 So. 831; Canada’s Appeal,
47 Conn. 450; Turner v. Cook, 36
Ind, 129; Scott v. Hawk, 107 Iowa
723, 77 N. W. 467, 70 Am. St. 228;

Flood v. Pragoff, 79 Ky. 607, 3 Ky.
L. 372; Watson v. Pipes, 32 Miss.
451.

58 Abbey v. Christy, 49 Barb. (N.
Y.) 276.

59In re Crittenden’s Estate, Myr.
Prob. (Cal.) 50; Brown v. McBride,
129 Ga. 92, 58 S. E. 702.

60 Woodruff v. Hundley, 127 Ala.
640, 29 So. 98, 85 Am. St. 145; Rus-
sell v. Evans, 3 Houst. (Del.) 103;
In re Porter, 20 D. C. 493; Webb v.
Fleming, 30 Ga. 808, 76 Am. Dec.
675.
393 EXECUTION § 445
ment be communicated by the testator to the witnesses. Even
where this is not a statutory requirement, it should be done,**
although it is held in some jurisdictions that the witnesses need
not know the testamentary character of the instrument, provided
they can identify it as the paper signed by them.”

While it is generally required that the witnesses should know
the testamentary character of the instrument, it is not necessary
or proper that they should know its contents.°*

Publication may be made at the time the testator signs the
will or prior thereto, or after, so long as it is done as a part of
the execution of the will.°* And it may be made to the witnesses
at different times,°° when they are apart from each other,®* pro-
vided this is done as a part of one transaction. The declaration
may be made by another than the testator, but in his presence
and by his direction and with his assent.

§ 446. Attestation by witnesses. The statutes of most
states require the will to be attested by two or more competent
witnesses subscribing their names to the will in the presence of
the testator ;°* and, although the instrument be testamentary in
character, it will be void if not attested as required.®? In the ab-
sence of a statute requiring attestation by witnesses a will of
personalty is good without attestation.”

To “attest” a will means something more than a mere sub-
scription of the witnesses’ names thereto. To attest a will is to
know that the testator published it as such, and to certify the

61 Barnewall v. Murrell, 108 Ala.
366, 18 So. 831; Mullin’s Estate, 110
Cal. 252, 42 Pac. 645; Lindsey v.
Stephens, 229 Mo. 600, 129 S. W.
641; In re Ayers’ Estate, 84 Nebr. 16,
120 N. W. 491.

62 Canada’s Appeal, 47 Conn. 450;
Notes v. Doyle, 32 App. D. C. 413.

63 Notes v. Doyle, 32 App. D. C.
413.

64Jn re Phillips, 98 N. Y. 267.

65 Thompson vy. Stevens, 62 N. Y.
634.

66 In re Palmer’s Will, 42 Misc. 469,

87 N. Y. S. 249; Beane v. Yerby, 12
Gratt. (Va.) 239.

6? Mundy v. Mundy, 15 N. J. Eq.
290; Voorhis’ Will, 125 N. Y. 765.

68 Poore v. Poore, 55 Kans. 687,
41 Pac. 973; Elliott v. Welby, 13 Mo.
App. 19; Perea v. Barela, 5 N. Mex.
458, 23 Pac. 766.

69 Cunningham v. Mills, 102 Ga.
584, 30 S. E. 429,

70 Ex parte Henry, 24 Ala. 638.

71 International Tr. Co. v. Anthony,
45 Colo. 474, 101 Pac. 781, 22 L. R.
A. (N. S.) 1002, 16 Ann. Cas. 1087.
§ 447 WILLS 394
facts required to constitute an actual and legal publication, but
to subscribe a paper published as a will consists merely of writing
on the same paper the names of the witnesses for the sole pur-
pose of identification. There may be a perfect attestation, in
fact, without subscription.”

At the time the witnesses are called upon to witness the will
they should contemplate the signing of the will by the testator,
the publication thereof, the identity of the instrument, and the
mental capacity and freedom of choice of the testator.”

The number of attesting witnesses is usually fixed by statute,
and a will that is witnessed by a less number of witnesses than
is designated by the statute is invalid.* But attestation by more
than the required number does not invalidate the will.”

§ 447. Attestation clause.—A clause, called the attesta-
tion clause, is usually affixed to a will just above the signatures
of the attesting witnesses, in which is recited a compliance with
the statutory requirements in the manner of execution. While
it is always desirable to have such clause, it is not strictly neces-
sary where the will is properly witnessed.” The validity of the
execution of a will depends not on the attestation clause, but on

72 Swift v. Wiley, 1 B. Mon. (Ky.)
114; Tobin v. Haack, 79 Minn. 101,
81 N. W. 758; In re Downie’s Will,
42 Wis. 66.

73 Crowson v. Crowson, 172 Mo.

691, 72 S. W. 1065.
: %%Fortner v. Wiggins, 121 Ga. 26,
48 S. E. 694; Moore v. Stephens, 97
Ind. 271; In re Murfield’s Will, 74
Towa 479, 38 N. W. 170; Clark v.
Miller, 65 Kans. 726, 68 Pac. 1071;
Tobin v. Haack, 79 Minn. 101, 81 N.
W. 758; Johnson v. Delome Land &c.
Co. 77 Miss. 15, 26 So. 360; Berberet
v. Berberet, 131 Mo. 399, 33 S. W.
61, 52 Am. St. 634; Simmons v.
Leonard, 91 Tenn. 183, 18 S. W. 280,
30 Am. St. 875; McLain v. Garrison,
39 Tex. Civ. App. 431, 88 S. W. 484,
89 S. W. 284. See also post, ch. 28.

7 Conoly v. Gayle, 61 Ala. 116;

Matter of Sizer, 129 App. Div. 7, 113
N. Y. S. 210;-Scattergood v. Kirk,
192 Pa. St. 263, 43 Atl. 1030.

7 Woodruff v. Hundley, 127 Ala.
640, 29 So. 98, 85 Am. St. 145; In re
Kent’s Estate, 161 Cal. 142, 118 Pac.
523; Butcher v. Butcher, 21 Colo.
App. 416, 122 Pac. 397; Kelly v.
Moore, 22 App. D. C. 9; Deupree v.
Deupree, 45 Ga. 414; Ferris v. Ne-
ville, 127 Mich. 444, 86 N. W. 960,
54 L. R. A. 464, 89 Am. St. 480;
Avaro y. Avaro, 235 Mo. 424, 138 S.
W. 500; Berberet v. Berberet, 131
Mo. 399, 33 S. W. 61, 52 Am. St. 634;
Williams v. Miles, 68 Nebr. 463, 94
N. W. 705, 96 N. W. 151, 62 L. R. A.
383, 110 Am. St. 431; Ward v.
County Comrs., 12 Okla. 267, 70 Pac.
378.
395. EXECUTION § 448
the conformity of such execution to the requirements of the
statute and the testimony of the subscribing witnesses.”

No precise form of attestation clause need be used; any form
being sufficient which shows that the testator’s signature was
affixed or by him acknowledged in the presence of witnesses.”* A
presumption of the due execution of a will arises from the pres-
ence of a perfect and formal attestation clause which ‘recites the
facts necessary to a valid execution of the will. An attestation
clause is made for the purpose of preserving, in permanent form,
a record of the facts attending the execution of the will, so that,
in case of the failure of the memory of the subscribing witnesses,
or other casualty, they may still be proved.*® While the attesta-
tion clause should be placed below the testator’s signature, its
location is generally considered immaterial, for it is not strictly
a part of the will. All erasures and interlineations should be
noted in the attestation clause, as they are operative only when
attested with the same formalities as the will itself.®*

§ 448. Competency of attesting witnesses.—The statutes
usually provide that the witnesses to a will shall be “competent”
or “credible.” By either of these terms is meant that they must
be competent persons to testify in court, and not disqualified by
interest, relationship or mental incapacity.*? They must be of
sufficient age, intelligence and moral standing to entitle them to
testify in other matters.**

If a witness is competent at the time he attested the will, his
subsequent incompetency does not affect the validity of the will.**

77 Barricklow v. Stewart, 163 Ind. v. Morris, 38 Md. 417; Sparhawk v.

438, 72 N. E. 128.

78 Herbert v. Berrier, 81 Ind. 1.

79 Holyoke v. Sipp, 77 Nebr. 394,
109 N. W. 506.

80 Bioren v. Nesler, 77 N. J. Eq.
560, 78 Atl. 201; Matter of De Hart,
67 Misc. 13, 122 N. Y. S. 220.

81Lurie v. Radnitzer, 166 Ill. 609,
46 N. E. 1116, 57 Am. St. 157; Cross-
man v. Crossman, 95 N. Y. 145.

82 Jones v. Grieser, 238 Ill. 183, 87
N. E. 295, 15 Ann. Cas. 787: Estep

Sparhawk, 10 Allen (Mass.) 155;
Carlton v. Carlton, 40 N. H. 14;
Dauphin County Historical Soc. v.
Kelker, 226 Pa. 16, 74 Atl. 619, 134
Am. St. 1010.

83 Curtiss v. Strong, 4 Day (Conn.)
51, 4 Am. Dec. 179.

84 Wisehart v. Applegate, 172 Ind.
313, 88 N. E. 501; Holmes v. Hollo-
man, 12 Mo. 535; Hopf v. State, 72
Tex. 281, 10 S. W. 589.
§ 448 WILLS 396
If the required number of attesting witnesses are competent,
the fact that an additional witness, who was incompetent, also
attested the will can not impair its validity.*°

The interest which disqualifies a person as a witness to a will
must be a present, certain, and vested interest as contradistin-
guished from one that is uncertain, remote, or contingent.**° Some
states have enacted the common-law rule that a husband or wife
is not a competent witness to a will which makes one of them
a beneficiary.*7 Other statutes, however, have been construed
to render competent as a witness, the husband or wife of a bene-
ficiary.** In one case where the husband was a beneficiary under
the will it was held that his wife was not competent as a witness
thereto ;*° but in another case the court declined to say whether,
where the wife was a beneficiary, the husband was a competent
witness or not.®°

In the absence of a statute to the contrary, devisees and lega-
tees under a will are incompetent to act as witnesses thereto.™
In many states, however, legacies and devises to subscribing wit-
nesses are, by statutory provision, rendered void, and the sub-
scribing witnesses declared competent.°? In some jurisdictions, a

85 Conoly v. Gayle, 61 Ala. 116.

86 Bates v. Officer, 70 Iowa 343, 30
N. W. 608; Berry v. Hamilton, 10
B. Mon. (Ky.) 129; Jones v. Teb-
betts, 57 Maine 572; Bacon v. Bacon,
17 Pick. (Mass.) 134; Lord v. Lord,
58 N. H. 7, 42 Am. Rep. 565.

87 See post, ch. 28. See also Fearn
v. Postlethwaite, 240 Ill. 626, 88 N. E.
1057; Belledin v. Gooley, 157 Ind. 49,
60 N. E. 706; Sullivan v. Sullivan,
106 Mass. 474, 8 Am. Rep. 356;
Hodgman v. Kittredge, 67 N. H. 254,
32 Atl. 158, 68 Am. St. 661.

88 Bates v. Officer, 70 Iowa 343, 30
N. W. 608; Winslow v. Kimball, 25
Maine 493; In re Holt, 56 Minn. 33,
57 N. W. 219, 45 Am. St. 434, 22 L.
R. A. 481; Lippincott v. Wikoff, 54

N. J. Eq. 107, 33 Atl. 305; Gamble v.
Butchee, 87 Tex. 643, 30 S. W. 861.

89 Belledin v. Gooley, 157 Ind. 49,
60 N. E. 706.

90 Wisehart v. Applegate, 172 Ind.
313, 88 N. E. 501.

91 Starr v. Starr, 2 Root (Conn.)
303; Hall’s Succession, 28 La. Ann.
57; In re Castine Trinitarium Cong.
Church, 91 Maine 416, 40 Atl. 325;
Trotters v. Winchester, 1 Mo. 413.

92 See post, ch. 28. See also Will-
jams v. Way, 135 Ga. 103, 68 S.
E. 1023; Harp v. Parr, 168 Ill. 459,
48 N. E. 113; Grimm v. Tittmann,
113 Mo. 56, 20 S. W. 664; Hop-
kins v. Lane, 49 Hun 608, 2 N. Y.
S. 322, 17 N. Y. St. 677; McLean
v. Elliott, 72 N. Car. 70; Fowler v.
Stagner, 55 Tex. 393,
397 EXECUTION § 448
beneficiary under a will who takes less thereby than he would as
‘heir is a competent witness to the will.®*

One named as executor in a will, if not a beneficiary therein,
is competent to act as a witness thereto, although entitled to an
allowance for his services.**> Some cases hold, however, that he
is a competent witness only when he is allowed nothing for his
services,*® or is bound, by a valuable consideration moving from
the testator, to execute the will without compensation.*” Other
cases hold that he is not a competent witness even though he
refuses to act®® or releases his right to compensation.°® Where
the executor is incompetent to act as a witness to a will, his wife
is also incompetent ;* and where thu executor is a competent wit-
ness his wife also is competent.”

A guardian of record of a beneficiary under a will is not a com-
petent witness thereto ;? but a trustee who takes no beneficial
interest under the will may be a witness thereto.*

The fact that a person is a member of an educational, religious,
or charitable corporation, society, or association to which a gift
is made by will does not render such person incompetent to act

as a witness to the will.®

23 Smalley v. Smalley, 70 Maine
545, 35 Am. Rep. 353; Sparhawk v.
Sparhawk, 10 Allen (Mass.) 155;
Clark v. Vorce, 19 Wend. (N. Y.)
232; In re Hoppe’s Will, 102 Wis. 54,
78 N. W. 183.

94Wisehart v. Applegate, 172 Ind.
313, 88 N. E. 501.

95 Comstock v. Hadlyme Ecclesias-
tical Soc., 8 Conn. 254, 20 Am. Dec.
100; Meyer v. Fogg, 7 Fla. 292, 68
Am. Dec. 441; Baker v. Bancroft, 79
Ga. 672, 5 S. E. 46; Jones v. Larra-
bee, 47 Maine 474; Estep v. Morris,
38 Md. 417. Contra: Tucker v.
Tucker, 27 N. Car. 161.

96 Panaud v. Jones, 1 Cal. 488.

97 Godfrey v. Phillips, 209 Ill, 584,
71 :N. E. 19,

°8Gunter v. Gunter, 48 N. Car.
441,

89 Morton v. Ingram, 33 N. Car.
368.

1Fearn v. Postlethwaite, 240 Ill.
626, 88 N. E. 1057; Huie v. McCon-
nell, 47 N. Car. 455,

2 Hawley v. Brown, 1 Root (Conn.)
494; Piper v. Moulton, 72 Maine 155;
Stewart v. Harriman, 56 N. H. 25,
22 Am. Rep. 408; In re Lyons’ Will,
96 Wis. 339, 71 N. W. 362, 65 Am.
St. 52,

8Sears v. Dillingham,
358.

4 Peralta v. Castro, 6 Cal. 354; Boyd
v. McConnell, 209 Ill. 396, 70 N. E.
649; Key v. Weathersbee, 43 S. Car.
414, 21 S. E. 324, 49 Am. St. 846.

5 Jones v. Habersham, 63 Ga. 146;
Boyd v. McConnell, 209 Ill. 396, 70
N. E. 649; Quinn v. Shields, 62 Iowa
129, 17 N. W. 437, 49 Am. Rep. 141:

12 Mass.
§ 449 WILLS 398

§ 449. Attestation at the request of testator—The stat-
utes of some states require the testator to request the witnesses -
to attest his will; and it has been held that even in the absence
of an express statute requiring such request, one will be implied
from the use of the word “attest.”® But generally the witnesses
are not required to subscribe the will at the express request of
the testator.” He need not formally request the witnesses to
attest his will,* as the request may be implied from his acts, and
from the circumstances attending the execution of the will.”°
Thus a request will be implied from the testator’s asking that
the witnesses be summoned to attest the will,** or by his ac-
quiescence in a request by another that the will be signed by the
witnesses.”

Where a will has been signed by the testator, a request made
in the presence of the testator to-persons to attest the will as
witnesses, made by the person who prepared the will, is equivalent
to a request by the testator himself.* Where the request is made
by another and is approved of by some sign or act on the part

In re Marston, 79 Maine 25, 8 Atl.
87; Will v. Sisters of Order of St.
Benedict, 67 Minn. 335, 69 N. W.
1090. But see In re Fetterhoft’s
Estate, 228 Pa. 535, 77 Atl. 826.

6 Huff v. Huff, 41 Ga. 696; Gross
v. Burneston, 91 Md. 383, 46 Atl. 993;
In re Roe, 82 Misc. 565, 143 N. Y.
S. 999; Burney v. Allen, 125 N. Car.
314, 34 S. E. 500, 74 Am. St. 637;
Savage v. Bowen, 103 Va. 540, 49 S.
E. 668; Skinner v. American Bible
Soc., 92 Wis. 209, 65 N. W. 1037.

7 Dyer v. Dyer, 87 Ind. 13; In re
Allen’s Will, 25 Minn. 39; Thompson
v. Thompson, 49 Nebr. 157, 68 N. W.
372; Ayres v. Ayres, 43 N. J. Eq.
565, 12 Atl. 621; In re Cherry (N.
Car.), 79 S. E. 288.

8 Payne v. Payne, 54 Ark. 415, 16
S. W. 1; Kempsey v. Maginnis, 2
Mich. N. P. 49; Carpenter v. Hay-
hurst, 72 W. Va. 780, 79 S. E. 819.

® Rogers v. Diamond, 13 Ark. 474;

Conrades v. Heller, 119 Md. 448, 87
Atl. 28; Schierbaum v. Schemme, 157
Mo. 1, 57 S. W. 526, 80 Am. St. 604;
Mundy v. Mundy, 15 N. J. Eq. 290;
Coffin v. Coffin, 23 N. Y. 9, 80 Am.
Dec. 235; McMechen v. McMechen,
17 W. Va. 683, 41 Am. Rep. 682.

10 Rogers v. Diamond, 13 Ark. 474;
In re Woolsey, 17 Misc. 547, 41 N.
Y. S. 263, 75 N. Y. St. 674, 2 Gibb.
127.

11 Rogers v. Diamond, 13 Ark. 474.

12 Harp v. Parr, 168 Ill. 459, 48 N.
E, 113; Conway v. Vizzard, 122 Ind.
266, 23 N. E. 771; In re Hull’s Will,
117 Iowa 738, 89 N. W. 979; Martin
v. Bowdoin, 158 Mo. 379, 59 S. W.
227; Whitenack v. Stryker, 2 N. J.
Eq. 8; Gilbert v. Knox, 52 N. Y. 125;
In re Herring, 152 N. Car. 258, 67
S. E. 570; In re Skinner, 40 Ore. 5¥1,
62 Pac. 523, 67 Pac. 951; Denny v.
Pinney, 60 Vt. 524, 12 Atl. 108.

13 Dyer v. Dyer, 87 Ind. 13.
399 EXECUTION § 450

of the testator, and the witnesses, with the knowledge of the
testator, and in response to such request, sign their names to the
will, the request is implied.** While a request will usually be im-
plied, the better practise is to have the testator make his request
to the witnesses by word of mouth. |

§ 450. Signing by witnesses in presence of testator.—The
statutes almost universally require that the witnesses shall sign
the will in the presence of the testator. It is not necessary that
the testator should actually see the attesting witnesses subscribe
their names to the instrument; if he is in such a situation that
he might see them sign if he chose, it will be presumed that he
did see them sign.*®

The act of signing must take place within the testator’s un-
obstructed range of vision, so that he may readily see what they
are doing, if he is so disposed, and if he is deprived of the use
of any of his faculties by mere physical infirmities, the test to
determine whether his will is attested in his presence is to inquire
whether he was conscious of the presence of the witnesses and
understood what they were doing when they wrote their names
on the will.*° Where, by reason of some physical infirmity, the
testator is unable to see the act of attestation, it will be deemed
signed in his presence when he is aware of it through his other
senses, and the act takes place in such close proximity that he
could see it but for his physical infirmity.

The subscription by the witnesses should take place in the
same room with the testator, and care should be taken to remove
any obstruction that might put the act of subscription out of the
view of the testator. And where the subscription is to be made
in an adjoining room the door should be open and the position
of the witnesses be such as to render the act of attestation capable

14J3n re Hull’s Will, 117 Iowa 738, Am. Rep. 276; Healey v. Bartlett, 73
89 N. W. 979; In re Nelson, 141 N. N. H. 110, 59 Atl. 617, 6 Ann. Cas.

Y. 152, 36 N. E. 3. 413.
15 Turner v. Cook, 36 Ind. 129; Mc- 17 Raymond v. Wagner, 178 Mass.
Elfresh v. Guard, 32 Ind. 408. 315, 59 N. E. 811; Cook v. Winches-

16 Raymond v. Wagner, 178 Mass. ter, 81 Mich. 581, 46 N. W. 106, 8 L.
315, 59 N. E. 811; Maynard v. Vin- R. A. 822.
ton, 59 Mich, 139, 26 N. W. 401, 60
§ 451 WILLS 400

of being seen by the testator. The subsequent acknowledgment
of a will signed by the witnesses in the absence of the testator
does not satisfy a statute requiring it to be signed in his pres-
ence.** Such a statute must be substantially complied with to
render the will valid.?

§ 451. Witnesses signing in presence of each other.—In
some jurisdictions the witnesses are required by statute to sign
the will in the presence of each other, and whenever this is the
case, such statutory requirement must, of course, be complied
with. Even in the absence of such statutory requirement it is
generally advisable to have the witnesses sign in the presence of
each other. In the absence of such statutory requirement, how-
ever, their simultaneous presence is not necessary,”® and they
may sign at different times and places.* Where a will is altered
between the time the first witness signed and the time when the
others sign, there is no valid attestation.”

§ 452. Alterations and additions.—Any alterations or ad-
ditions to a will, either upon the face of the instrument, by codicil,
or upon separate paper, must be executed with the same formali-
ties as a new will.** Where such alterations or additions appear

18Lamb v. Girtman, 33 Ga. 289;
Calkins v. Calkins, 216 Ill. 458, 75
N. E. 182,1 L. R. A. (N. S.) 393,
108 Am. St. 233; Mendell v. Dunbar,
169 Mass. 74, 47 N. E. 402, 61 Am.
St. 277; Ragland v. Huntingdon, 23
N. Car. 561; Pawtucket v. Ballou, 15
R. I. 58, 23 Atl. 43, 2 Am. St. 868.

19 Snider v. Burks, 84 Ala. 53, 4 So.
225; Greene v. Greene, 145 Ill. 264,
33 N. E. 941; Cowan v. Shaver, 197
Mo. 203, 95 S. W. 200.

20 Moore vy. Spier, 80 Ala. 129;
Rogers v. Diamond, 13 Ark. 474;
Lane’s Appeal, 57 Conn. 182, 17 Atl.
926, 14 Am. St. 94,4 L. R. A. 45;
Webb v. Fleming, 30 Ga. 808, 76 Am.
Dec. 675; Flinn v. Owen, 58 Ill. 111;
Hull v. Hull, 117 Iowa 738, 89 N. W.
979; Ela v. Edwards, 16 Gray (Mass.)

91; Grimm v. Tittman, 113 Mo. 56,
20 S. W. 664; Welch v. Adams, 63
N. H. 344, 1 Ati. 1, 56 Am. Rep. 521;
In re Clark (N. J.), 52 Atl 222;
Matter of Levengston, 158 App. Div.
69, 142 N. Y. S. 829; Watson v. Hin-
son, 162 N. Car. 72, 77 S. E. 1089,
Ann. Cas, 1915-A, 870; Simmons v.
Leonard, 91 Tenn, 183, 18 S. W. 280,
30 Am. St. 875; Green v. Crain, 12
Gratt. (Va.) 252; Smith’s Will, 52
Wis. 543, 8 N. W. 616, 9 N. W. 665,
38 Am. Rep, 756.

21Moore v. Spier, 80 Ala. 129;
Rogers v. Diamond, 13 Ark. 474;
Johnson v. Johnson, 106 Ind. 475, 7
N. E. 201, 55 Am. Rep. 762:

22 Patterson v. Ransom, 55 Ind. 402.

23 Notes v. Doyle, 32 App. D. C.
413,
401 EXECUTION § 453
upon the face of the will they are presumed to have been made
after the execution of the will; and hence they have no effect
unless the will is re-executed in its altered condition. This pre-
sumption, however, may be rebutted by a reference to the altera-
tions in the attesting clause.* But if the alterations are im-
material, a failure to re-execute the will, or to refer to them in
the attestation clause, does not invalidate the will.”

Alterations in a will, made by a stranger to it, and without the
knowledge of the testator, are regarded as a mere spoliation of
the instrument, and it will be admitted to probate as it stood be-
fore the changes were made.”

Where the testator, after the execution of his will, erases
something and inserts something else in its place, the part in-
serted will be treated as if it did not exist, and the part stricken
out will be treated as if it were still a part of the will.” But in
jurisdictions where partial revocation is allowed, an alteration
in a will may take effect if it merely takes from the provisions
of the will, though it can not be given effect where it adds some-
thing to the will unless the will is afterward republished.”

Any addition or alteration of a will made by the testator does
not amount to a revocation of such will unless it is made with
intention to revoke.”? '

§ 453. Execution of a holographic will—We have seen
that a holographic will is one entirely in the handwriting of the

24Martin v. King, 72 Ala. 354;
Burge v. Hamilton, 72 Ga. 568;
Southworth v. Southworth, 173 Mo.

46 N. E. 734, 57 Am. St. 135; Doane
v. Hadlock, 42 Maine 72; Varnon v.
Varnon, 67 Mo. App. 534; Gardiner

59, 73 S. W. 129. Contra: Scott v.
Thrall, 77 Kans. 688, 95 Pac. 563, 17
L. R. A. (N. S.) 184, 127 Am. St.
449,
25 McIntire v. McIntire, 162 U. S.
383, 16 Sup. Ct. 814, 40 L..ed 1009.
26 Monroe v. Huddart, 79 Nebr.
569, 113 N. W. 149, 14 L. R.A. (N.
S.) 259; Holman v. Riddle, 8 Ohio
St. 384.
_?7 Hesterberg v. Clark, 166 Ill. 241,

26—Tuomp. WILLS.

v. Gardiner, 65 N. H. 230, 19 Atl. 651,
8 L. R. A. 383; Lovell v. Quitman,
88 N. Y. 377, 42 Am. Rep. 254; In re
Simrell’s Estate, 154 Pa. St. 604, 26
Atl. 599, 35 Am. St. 864; Stover v.
Kendall, 1 Cold. (Tenn.) 557.

28In re Miles’ Appeal, 68 Conn.
237, 36 Atl. 39, 36 L. R. A. 176;
Eschbach v. Collins, 61 Md. 478, 48
Am. Rep. 123.

29 Wright v. Wright, 5 Ind. 389.
§ 454 WILLS 402
testator.*° And while, as in the case of other wills, no particular
form is required,®* yet the provisions of the statute authorizing
such will must be complied with.*

Such statutes usually require that such will shall be wholly in
the testator’s handwriting; that it shall be dated, and signed by
him.** Where the statute requires the testator to sign at the end
of the will, his signature at the beginning and not at the end of
the will is not a proper signing thereof ;** but in the absence of
such a statutory provision his signature placed in the body of
the will with intent to make such his signature is a sufficient
signing.**

Attestation by witnesses is unnecessary, except where the stat-
ute makes no exception in favor of such wills as regards attesta-
tion.*® But the fact that a holographic will is attested by wit-
nesses does not invalidate it.*” A holographic will of personalty
was good at common law without the signature, seal or witness.*

§ 454. Execution of a nuncupative will—As we have seen
a nuncupative will is an oral testament, declared by a testator
in extremis before a sufficient number of witnesses, and after-
ward reduced to writing.*° Such wills are not favorites of the
law and can not be established except upon strict proof and

30 See ante, ch. 2, § 25.

81 Skerrett’s Estate, 67 Cal. 585, 8
Pac. 181; Webster v. Lowe, 107 Ky.
293, 53 S. W. 1030, 21 Ky. L. 998;
Ehrenberg’s Succession, 21 La. Ann.
280, 99 Am. Dec. 729; Buffington
v. Thomas, 84 Miss. 157, 36 So.
1039, 105 Am. St. 423, 9 Prob. Rep.
Ann. 287; In re Noyes’ Estate, 40
Mont. 190, 105 Pac. 1017, 26 L. R. A.
1145, 20 Ann. Cas. 366; Alston v.
Davis, 118 N. Car. 202, 24 S. E. 15.

32In re Rand, 61 Cal. 468, 44 Am.
Rep. 555; Scott v. Harkness, 6 Idaho
736, 59 Pac. 556; Armant’s Succes-
sion, 43 La. Ann. 310, 9 So. 50, 26
Am. St. 183; Baker v. Brown, 83 Miss.
793, 36 So. 539,

33Tn re Plumel’s Estate, 151 Cal.
77, 90 Pac. 192, 121 Am. St. 100, 12
Prob. Rep. Ann. 576.

84In re Armant’s Will, 43 La, Ann.
310, 9 So. 50, 26 Am. St. 183.

85 Tate v. Tate, 11 Humph. (Tenn.)
465.

86 Eaton v. Brown, 193 U. S. 411,
24 Sup. Ct. 487, 48 L. ed. 730, 9 Prob.
Rep. Ann. 627; McIntire v. McIntire,
19 D. C. 482; Baker v. Dobyns, 4
Dana (Ky.) 220.

87 Langley v. Langley, 12 La. 114;
Brown v. Beaver, 3 Jones (N. Car.)
516, 67 Am. Dec. 255.

88 Leathers v. Greenacre, 53 Maine
561.

39 See ante, ch. 2, § 22.
§ 454

403 EXECUTION

compliance with all the requirements of the law, and are restricted
to cases falling clearly within the reason of the statute.*°

Generally no particular form is prescribed for such wills, but
the intent to make a will must be plain. It must, however, be
made by spoken words or signs, and may be made in answer to
questions.*t But where the statute prescribes particular formali-
ties in the execution of such wills, the requirements of the statute
must be strictly observed.*”

No words can be sustained as a nuncupative will, unless the
person using them has the intention of making them his will,
and believes he is making a will.** Mere verbal instructions and
directions for drawing up a written will, although made in the
presence of the required number of witnesses, do not constitute
a nuncupative will.**

It would seem to be indispensable to the validity of such will
that the testator should request some of the persons present to
bear witness that such was his last will, or do something which
is equivalent to such request. In reducing such will to writing
the exact words of the verbal declaration of the testator need not
be preserved, but the substance of what was said by him must
be retained and ‘reduced to writing.*® The declaration must be
reduced to writing within the period required by the statute
and shown to and approved by each of the attesting witnesses.**

40 Scaife v. Emmons, 84 Ga. 619,
10 S. E. 1097, 20 Am. St. 383; Pierce
v. Pierce, 46 Ind. 86.

41 Harrington v. Stees, 82 Ill. 50,
25 Am. Rep. 290; Mulligan v. Leon-
ard, 46 Iowa 692; Starrs v. Mason, 32
La. Ann. 8; Campbell v. Campbell,
21 Mich. 438; Lucas v. Goff, 33 Miss.
629; Hubbard v. Hubbard, 8 N. Y.
196, Seld. Notes 89; In re Yarnall’s
Will, 4 Rawle (Pa.) 46, 26 Am. Dec.
115,

42 Arnett v. Arnett, 27 Ill. 247, 81
Am. Dec. 227; Pierce v. Pierce, 46
Ind. 86; Succession of Dorries, 37
La. Ann. 833.

43 Mulligan v. Leonard, 46 Iowa

692; Gibson v. Gibson, Walk (Miss.)
364.

44Lucas v. Goff, 33 Miss. 629;
Dockum v. Robinson, 26 N. H. 372.

45 Sampson v. Browning, 22 Ga.
293; Arnett v. Arnett, 27 Ill. 247, 81
Am. Dec. 227; Pierce v. Pierce, 46
Ind. 86; Babineau v. Le Blanc, 14
La. Ann. 729; Biddle v. Biddle, 36
Md. 630; Broach v. Sing, 57 Miss.
115; Dawson’s Appeal, 23 Wis. 69.

48 Landry v. Tomatis, 32 La. Ann.
113; Marks v. Bryant, 4 Hen. & M.
(Va.) 91.

47 Welling v. Owings, 9 Gill (Md.)
467.
§ 454 WILLS 404

Where the statute requires two witnesses, its requirements are
not satisfied by making the same oral declaration to one witness
at one time and the other at another time.“

48 Offutt v. Offutt, 3B. Mon. (Ky.) Dec. 307; Wester v. Wester, 5 Jones

162, 38 Am. Dec. 183; Prince v, Hazle- (N. Car.) 95; In re Yarnall’s Will, 4
ton, 20 Johns. (N. Y.) 502, 11 Am. Rawle (Pa.) 46, 26 Am. Dec. 115,
CHAPTER XXIV)

REVOCATION
SECTION SECTION
460. Revocation in general. 466. Changes in condition or circum<
461. By writing not testamentary in stances of testator—In generai.
character. 467. By marriage, and by marriage
462. By a subsequent will. and birth of issue.
463. By codicil. 468. Revocation by divorce.
464. Mutilation, cancelation, or de- 469. By sale or conveyance of prop-
struction. erty.
465. By alterations and additions, 470. Revocation of joint or mutual
wills.

§ 460. Revocation in general_—A will is ambulatory dur-
ing the life of the maker and only becomes irrevocable upon his
death. The axiom of Holy Writ that “a testament is of force
after men are dead; otherwise it is of no strength at all while the
testator liveth,’’* has never been changed by legislature or court.
The maker of a will has control over the property devised or
bequeathed and power to revoke the instrument as long as he
lives, and no title to the property under the will can vest in the
beneficiary until the testator’s death.? Prior to the enactment of
the statute of frauds a written will could be revoked by oral
declarations. This loose method of revocation resulted in many
bold attempts to defeat wills by false testimony concerning the
declarations of the testator. The boldness and frequency of
these attempts led to the enactment of the statute of frauds,
which pointed out explicitly the manner in which wills should be
revoked.* This statute has moulded and governed the modern

1Epistle of Paul to the Hebrews, pertaining to the revocation of wills:
ch. 9, v. 17. “Sec. 6. And moreover, no devise
2Cozzens v. Jamison, 12 Mo. App. in writing of lands, tenements or
452; Hart v. West, 16 Tex. Civ. App. hereditaments, nor any clause thereof,
395, 41 S. W. 183. shall at any time after the said four
3 Sections of the Statute of Frauds and twentieth day of June be revo:

405
§ 460 WILLS 4G6
statute law of this country on the subject, the resulf of which
is that wills can no longer be revoked by the oral declarations
of the testator.*

The statutory requirements in reference to the revocation of
wills must be strictly pursued,° and whatever is done by a testator,
to be effectual as a revocation, must be done with the intention
_of revoking the will.® Neither the act nor the intention alone
will be sufficient; they must concur. The act of revocation must
be done by the testator, or by some person in his presence and by
his direction. The mere intention to revoke does not render a
will inoperative, nor does the belief of the testator that the will
has been destroyed or otherwise revoked affect its validity.” The
mental capacity required for revoking a will is the same as that
required for making a will. A will can not be revoked by the

cable, otherwise than by some other
will or codicil in writing, or other
writing declaring the same, or by
burning, canceling, tearing or oblit-
erating the same by the testator him-
self, or in his presence and by his
directions and consent; but all de-
vises and bequests of lands and tene-
ments shall remain and continue in
force, until the same be burnt, can-
celed, torn or obliterated by the tes-
tator or his directions, in manner
aforesaid, or unless the same be al-
tered by some other will or codicil
in writing, or other writing, of the
devisor, signed in the presence of
three or four witnesses, declaring the
same: any former law or usage to
the contrary notwithstanding.

“Sec. 22, And be it further en-
acted, That no will in writing con-
cerning any goods or chattels, or per-
sonal estate, shall be repealed, nor
shall any clause, devise or bequest
therein be altered or changed by any
words, or by will, by word of mouth
only, except the same be in the life

of the testator committed to writing,
and after the writing thereof read
unto the testator, and allowed by him
and proved to be done by three wit-
nesses at the least.”

4 See post, ch. 28.

5Smith v. Dolby, 4 Harr. (Del.)
350; Castens v. Murray, 122 Ga. 396,
50 S. E. 131, 2 Ann. Cas. 590; Runkle
v. Gates, 11 Ind. 95; Steele v. Price,
5 B. Mon, (Ky.) 58; Hoitt v. Hoitt,
63 N. H. 475, 3 Atl. 604, 56 Am.
Rep. 530; In re Frothingham, 75 N>
J. Eq. 205, 71 Atl. 695; Burnham v.
Comfort, 108 N. Y. 535, 15 N. E.
710, 2 Am. St. 462; In re Zollicoffer,
50 N. Car. 309; Blanchard v. Blanch-
ard, 32 Vt. 62.

® Russell v. Hartley, 83 Conn. 654,
78 Atl. 320; Bradlee v. Andrews, 137
Mass. 50. ; :

7Davis v. Fogle, 124 Ind. 41, 23
N. E, 860, 7 L. R. A. 485n. ~

8 Bethany Hospital Co. v. Philippi,
82 Kans. 64, 107 Pac. 530, 30 L. R.
A. (N. S.) 194.
407 REVOCATION § 461
guardian of one who nas become incompetent after the execution
of the will.’

A will may be revoked by the testator (1) by a writing not
testamentary in character, (2) by a subsequent will, (3) by a
codicil, (4) by mutilation, cancelation, or destruction, and (5)
by alterations and additions. A will may also be revoked by
operation of law resulting from a change in the circumstances
of the testator after the making of the will, such as (1) marriage
of the testator, (2) birth of issue, (3) alteration of estate, or
(4) loss of estate. These various methods of revocation will
be discussed in succeeding sections.

§ 461. By writing not testamentary in character.—By
statute in some jurisdictions a will may be revoked by a writing
not testamentary in character, if executed with the required
formalities.*° Such writiig must be made for the sole purpose
of revoking the will, and must be of a date later than the will.**
The instrument should contain only a provision for revocation,”
and such provision must show the testator’s intention to revoke
the will.* The statutes generally require that such revoking
instrument be executed with all the formalities of a will,“* and
it is held that, no matter how clear the testator’s intention may be,
an instrument executed without these formalities does not work
a revocation.”

9 Mastick v. Superior Court, 94
Cal. 347, 29 Pac. 869.

10 Reid v. Borland, 14 Mass. 208;
In re Voorhis, 125 N. Y. 765, 26 N.
E. 935, 4 Silvernail Ct. App. 328; In
re Backus, 49 App. Div. 410, 63 N. Y.
S. 544.

11 Thurston v. Prather, 77 S. W.
354, 25 Ky. L. 1137.

12 Barksdale v. Hopkins, 23 Ga.
332; Seymour’s Succession, 48 La.
Ann. 993, 20 So. 217; Goods of Gos-
ling, 55 L. J. P. 27; Noyes’ Will, 61
Vt. 14, 17 Atl. 743.

18 Taylor v. Pegram, 151 Ill. 106,

37 N. E. 837; Hill’s Succession, 47
La. Ann. 329, 16 So. 819; Kirkpatrick
v. Jenkins, 96 Tenn. 85, 33 S. W. 819.

14 Doe v. Pattison, 2 Blackf. (Ind.)
355; Reid v. Borland, 14 Mass, 208;
Vining v. Hall, 40 Miss. 83.

15 Barksdale v. Hopkins, 23 Ga.
332; Hollingshead v. Sturgis, 21 La.
Ann. 450; Eschbach v. Collins, 61
Md. 478, 48 Am. Rep. 123; West v.
West, 144 Mo. 119, 46 S. W. 139;
Morey v. Sohier, 63 N. H. 507, 3
Atl. 636, 56 Am. Rep. 538; Rudy v.
Ulrich, 69 Pa. St..177, 8 Am. Rep.
238.
§ 462

WILLS 408

A paper attested by two witnesses can not revoke a will at-
tested by three witnesses as required by statute.*®

An ordinary written will executed with the formalities required
by statute may be revoked by a holographic will.”

Revocation by a later writing not a will, even where authorized
by statute, is rarely resorted to, preference being given, if the
testator’s intent to revoke is exercised in writing at all, to some
writing testamentary in character and for the operation of which
its admission to probate is necessary.

§ 462. By a subsequent will—A will may be revoked by
a subsequent will, provided the latter instrument contains either
an express clause of revocation, or an inconsistent disposition of
the property devised in the former will.** To have the force and
effect of revoking the former will it must be executed with all
the formalities required by law to admit it to probate.”

Where the disposition of the property by the revoking will is
inconsistent with the disposition thereof by the former will,
the former will is revoked, and this is so regardless of whether
the former will is expressly revoked by the latter one or not.”° A
second will may become operative as a revocation of a former

16 Morey v. Sohier, 63 N. H. 507, 3
Atl. 636, 56 Am. Rep. 538.

17 Ennis v. Smith, 14 How. (U. S.)
400, 14 L. ed. 472; Hooper v. Mc-
Quary, 5 Cold. (Tenn.) 129; Gordon
v. Whitlock, 92 Va. 723, 24 S, E.
342; In re Soher’s Estate, 78 Cal.
477, 21 Pac. 8.

18 Wilson v. Bostick, 151 Ala. 536,
44 So. 389; Clarke v. Ransom, 50
Cal. 595; Stetson v. Stetson, 200 Ill.
601, 66 N. E. 262, 61 L. R. A. 258;
Kern v. Kern, 154 Ind. 29, 55 N. E,
1004, 5 Prob. Rep. Ann. 337; In re
Dunahugh, 130 Iowa 692, 107 N. W.
925; Deppen v. Deppen, 132 Ky. 755,
117 S. W. 352, 14 Prob. Rep. Ann.
348; Bobb’s Succession, 42 La. Ann.
40, 7 So. 60; Johns Hopkins Univer-
sity v. Pinckney, 55 Md. 365; Laugh-
ton v. Atkins, 1 Pick. (Mass.) 535;

Kelly v. Johnson, 34 Mo. 400; Lane
v. Hill, 68 N. H. 275, 44 Atl. 393, 73
Am, St. 591; Boylan v. Meeker, 28
N. J. L. 274; Matter of Wear, 131
App. Div. 875, 116 N. Y. S. 304;
Hallyburton v. Carson, 86 N. Car.
290; In re Hamilton’s Estate, 74 Pa.
St. 69; Reese v. Newport Prob. Ct,
9 R. I. 434; Warner v. Warner, 37
Vt. 356; In re Fisher, 4 Wis. 254, 65
Am. Dec. 309.

19 Gaines v. Lizardi, 154 U. S. 555,
44 Sup. Ct. 1201, 18 L. ed. 967; West
v. West, 144 Mo. 119, 46 S. W. 139;
Caeman v. Van Harke, 33 Kans. 333,
6 Pac. 620; Castens v. Murray, 122
Ga. 396, 50 S. E. 131.

20 Burns v. Travis, 117 Ind. 44, 18
N. E. 45; State v. Crossley, 69 Ind.
203.
409° REVOCATION § 462
will, although it may be inoperative in all other respects.** Thus
where a testator, having devised property to a certain person,
subsequently devises the same property to a different person,
who is incapable of taking under the will, the devise in the latter
will must fail, but it is sufficient to revoke the former devise.”
The revocation of a former will by a later one takes effect at
the testator’s death, and his intentional destruction of the later
will leaves the former one in force.”

Proof of the execution of a second or subsequent will is not
sufficient of itself to establish revocation; but it is generally
held that a second will, though it contains no clause of revoca-
tion, must operate as a revecation of the first, either total or
partial, when they are irreconciliable, either wholly or in some
respects, and can not both be given effect at the same time, as
where both purport to dispose of all the testator’s property, or
one of them gives some part of it to one person, and the other
to a different person.* But even when two wills do not com-
pletely cover the same subject, if, from the second will, taken as
a whole, and the circumstances attending its execution, there ap-
pears an intention of the testator to dispose of his property in
a manner different from that in the first will, it is to that extent
revoked.”

The expression in a later will that it is the testator’s last will
and testament is entitled to very little weight ;?° it amounts to no
more than a statement of a fact which is apparent from a mere
inspection of the two wills if they are truly dated, and which,
whether they are so dated or not, may be proved by any com-
petent evidence. Where, however, the last will contains a gen-

21 Burns v. Travis, 117 Ind. 44, 18
N. E. 45; Laughton v. Atkins, 1 Pick.
(Mass.) 535.

22Hairston v. Hairston, 30 Miss.
276.

23 Bates v. Hacking, 28 R. I. 523,
68 Atl. 622, 14 L. R. A. (N. S.) 937,
125 Am. St. 759.

24 Bobb’s Succession, 42 La. Ann.
40, 7 So. 60; Webb v. Carpenter, 16
R. I. 68, 12 Atl. 129; Reese v. Pro-

bate Court of Newport, 9 R. I. 434;
In re Fisher, 4 Wis. 254, 65 Am. Dec.
309.

25 Dempsey v. Lawson, 46 L. J. P.
23, 2 P. D. 98, 36 L. T. 515, 25 N. R.
629,

26 Gordon v. Whillock, 92 Va. 723,
24 S. E. 342; Hellier v. Hellier, 9 P.
D. 237, 49 J. P. 8,53 LJ. P.D.&
Adm. 105, 33 Wkly. Rep. 324.
§ 463 410

WILLS

eral clause revoking all prior wills, they are thereby rendered
inoperative, though the dispositions of the property made by them
are not wholly irreconcilable, and the second will does not purport
to dispose of all the testator’s property, as where the first will
disposes of his property, both real and personal, and the last
will, containing the general clause of revocation, disposes of per-
sonalty only.”

§ 463. By codicil—A will is not necessarily superseded
or revoked by a codicil thereto, but the two instruments will be
construed together as one entire will.* The codicil may, how-
ever, operate as a revocation of the will by a direction to that
effect, or by force of the clear import of language in some incon-
sistent or repugnant provision.”

In order that a will may be revoked by a codicil containing a
disposition of property inconsistent with the disposition thereof
in the will, such inconsistent disposition must be such as to ex-
clude any other legitimate inference than that of a change in
the testator’s intention.*° But in order to have the force and
effect of revoking the will a codicil must be executed with all
the formalities required by law to admit it to probate.**

Unless a codicil can not otherwise be conceded its proper
effect, it does not revoke the will, either totally or partially.*
Even where it contains a general clause of revocation, such

27 Cottrell v. Cottrell, L. R. 2 P. &
D. 397, 41 L. J. P. D. 57, 20 Wkly.
Rep. 590, 26 L. T. (N. S.) 527.

28 Boyd v. Boyd, 2 Fed. 138, 1.Mc-
Crary 268; Terhune v. Commercial
Nat. Safe Deposit Co., 245 Ill. 622, 92
N. E. 532; Lee v. Lee, 45 Ind. App.
645, 91 N. E. 507; In re Sternburg’s
Estate, 94 Iowa 305, 62 N. W. 734;
Boyd v. Latham, 44 N. Car. 365; In
re Sigel, 213 Pa. 14, 62 Atl. 175, 1 L.
R. A. (N. S.) 397, 110 Am. St. 515,
11 Prob. Rep. Ann, 111.

29 Hemphill v. Moody, 62 Ala. 510;
Deppen v. Deppen, 132 Ky. 755, 117
S. W. 352, 14 Prob. Rep. Ann. 348;
Johns Hopkins University v. Pinck-

ney, 55 Md. 365; Hard v. Ashley, 117
N. Y. 606, 23 N. E. 177; Rhyme v.
Torrence, 109 N. Car. 652, 14 S. E.
95; In re Jones’ Estate, 18 Phila.
(Pa.) 58; Frelinghuysen v. New
York L. Ins. &c. Co., 31 R. I. 150, 77
Atl. 98, Ann, Cas. 1912 B, 237.

30 Bringhurst v. Orth, 7 Del. Ch.
178, 44 Atl. 783; Johns Hopkins Uni-
versity v. Pinckney, 55 Md. 365;
Manner’s Estate, 22 Pa. Co. Ct. 577.

81 Notes v. Doyle, 32 App. (D. C.)
413; Orchard v. David, 6 B. Mon.
(Ky.) 376; Saunders v. J. R. T.
Samarreg Co., 205 Pa. 632, 55 Atl.
763.

32 Hard v. Ashley, 117 N. Y. 606,
411 REVOCATION § 464

clause may be considered as relating to pre-existing wills, of
which the codicil is not a part.** Where the codicil in express
terms revokes certain provisions of the will every effect con-
templated by the revoking clause must be given in order to carry
into operation the wishes of the testator.**

Where the statute authorizes the execution of holographic
wills and a holographic codicil to a will is permissible, whether
such will was holographic or not, it may operate as a revocation
of a clause in the will with which it is inconsistent.**

The general rule is that the provisions of a will are not revoked
by a codicil, the language of which is capable of other reason-
able construction, or is less clear and certain than the language
of the will.*®* Hence, the codicil should specify with reasonable
exactness and clearness what, if any, provisions of the will are
intended to be revoked.

§ 464. Mutilation, cancelation, or destruction.—Under
most statutes a testator may revoke his will by some equivocal
act of destruction with the intention of revocation. Some of
these statutes follow the statute of frauds literally by using the
words, “burning, canceling, tearing, or obliterating,’ while others
follow the Statute of Wills, 1 Vict., which contains the words
“burning, tearing or otherwise destroying.’’*? To constitute
revocation by this method the act of destruction must have been
done. by the testator with the intention of revocation.** Thus a
will is not revoked where the testator destroys it by mistake,
through undue influence,*® or while of unsound mind.*° Such
an act of revocation must be done by the testator himself or by

23 N. E. 177; Rodgers v. Rodgers, 6 v. Coddington, 154 N. Y. 283, 48 N.

Heisk. (Tenn.) 489. E, 729,
33 Gelbke v. Gelbke, 88 Ala. 427, 6 37 See Digest of Statutes, ch. 28.
So. 834. 38 Law v. Law, 83 Ala. 432, 3. So.
34In re Scott, 141 Cal. 485, 75 752; McIntyre v. McIntyre, 120 Ga.
Pac. 44. 67, 47 S. E. 501, 102 Am. St. 71, 1
35In re Soher’s Estate, 78 Cal. 477, Ann. Cas. 606.
21 Pac. 8 39 Batton v. Watson, 13 Ga. 63, 58

36Colt v. Colt, 32 Conn. 422; Am. Dec. 504.
Bringhurst v. Orth, 7 Del. Ch. 178, 40In re Johnson’s Will, 40 Conn,
44 Atl 783; Herzog v. Title Guar- 587.
antee & Trust Co., 177 N. Y. 86, 69
N. E. 283, 67 L. R. A. 146; Goodwin
412

§ 464 WILLS

some other person by his direction or with his consent,“* and
according to some statutes, in his presence.*? The destruction
of a will out of the presence of the testator or without his con-
sent does not destroy its legal effect, even though the paper evi-.
dence of it is gone.*

The statutes of some states have been construed as requiring
a revocation by obliteration, mutilation, or cancelation to be of
the whole will, and therefore, erasures or other obliterations
intended to effect only some part or clause of a will, are disre-
garded.** But, except where statutes are in force to which this
construction has been or must be given, the obliteration or mutila-
tion of a will may be partial as well as total, and where any
clause is by any means so obliterated that it can no longer be
read, it is revoked, and the will must be admitted to probate
without it.*

The act of destroying a will need not be witnessed,** but a
presumption that it was destroyed arises from proof that it was
executed, remained in testator’s possession, and is not found at
his death,*” or is found in a torn, defaced or mutilated condi-

tion.**

41 Howard v. Hunter, 115 Ga. 357,
41 S. E. 638, 90 Am. St. 121, 8 Prob.
Rep. Ann. 9; McCarn v. Rundall, 111
Towa 406, 82 N. W. 924, 5 Prob. Rep.
Ann. 624; Clingan v. Mitcheltree, 31
Pa. St. 25.

42 Miles’ Appeal, 68 Conn. 237, 36
Atl. 39, 36 L. R. A. 176, 2 Prob. Rep.
Ann. 219; Morey v. Sohier, 63 N. H.
507, 3 Atl. 636, 56 Am. Rep. 538;
Mundy v. Mundy, 15 N. J. Eq. 290;
Matter of Hughes, 61 Misc. 207, 114
N. Y. S. 929; Dower v. Seeds, 28 W.
Va. 113, 57 Am. Rep. 646; Gavitt v.
Moulton, 119 Wis. 35, 96 N. W. 395.

43 Mann y. Balfour, 187 Mo. 290, 86
S. W. 103.

44Law v. Law, 83 Ala. 432, 3 So.
752; Lovell v. Quitman, 88 N. Y.
377, 42 Am. Rep. 254; Malone v.
Hobbs, 1 Rob. (Va.) 346, 39 Am.
Dec. 263.

45 Taylor v. Kelly, 31 Ala. 59, 68

Am. Dec. 150; Bigelow v. Gillott, 123
Mass. 102, 25 Am. Rep. 32; Matter
of Kirkpatrick, 22 N. J. Eq. 463;
Wikoff’s Appeal, 15 Pa. St. 281, 53
Am. Dec. 597. ;

46 Witter v. Mott, 2 Conn. 67.

47 Weeks v. McBeth, 14 Ala. 474;
Spencer’s Appeal, 77 Conn. 638, 60
Atl. 289; Scott v. Maddox, 113 Ga.
795, 39 S. E. 500, 84 Am. St. 263;
Boyle v. Boyle, 158 Ill. 228, 42 N. E.
140; Hamilton v. Crowe, 175 Mo. 634,
75S. W. 389; Collyer v. Collyer, 110
N. Y. 481, 18 N. E. 110, 6 Am. St.

-405; Behrens v. Behrens, 47 Ohio St.

323, 25 N. E. 209, 21 Am. St. 820;
Gardner v. Gardner, 177 Pa. St. 218,
35 Atl. 558; McIntosh v. Moore, 22
Tex. Civ. App. 22, 53 S. W. 611;
Throckmorton v. Holt, 180 U. S. 552,
21 Sup. Ct. 474, 45 L. ed. 663.

48In re Wikman’s Estate, 148 Cal.
642, 84 Pac. 212.
413 REVOCATION § 465

§ 465. By alterations and additions—Any alterations or
additions to a will after it has been duly executed and attested
will not work a revocation of the will unless the instrument is
subsequently re-executed with all the formalities necessary to its
execution originally. There must be an intention on the part
of the testator to revoke the will at the time the alterations or
additions are made, and to effectuate such intention there must

be an attestation of the will in its changed condition.”

§ 466. Changes in condition or circumstances of testator
—In general.—It is a thoroughly established principle of
the common law that certain changes in the condition or circum-
stances of the testator worked a revocation of the will by implica-
tion, and this principle of the common law prevails wherever it
has not been repealed by statute.**

The statutes of many states enumerate the ways in which a will
may be revoked by the act of the testator, and provide that
nothing therein contained “shall prevent any revocation implied
by law from subsequent changes in the condition or circumstances
of the testator ;” and it is held that the revocation implied by law
within the meaning of these statutes is the implied revocation
which existed at common law.*? Under such statutes the subse-

49 Hesterberg v. Clark, 166 Ill. 241,
46 N. E. 734, 57 Am. St. 135, 2 Prob.
Rep. Ann. 148; Wright v. Wright, 5
Ind. 389; Wells v. Wells, 4 T. B.
Mon. (Ky.) 152, 16 Am. Dec. 150;
In re Penniman’s Will, 20 Minn. 245,
18 Am. Rep. 368; Gardiner v. Gardi-
ner, 65 N. H. 230, 19 Atl. 651, 8 L. R.
A. 383; Matter of Ackerman, 129
App. Div. 584, 114 N. Y. S. 197;
Brundige v. Benton, 9 Ohio Dec.
(Reprint) 786, 17 Wkly. L. Bul. 243;
Dixon’s Appeal, 55 Pa. St. 424;
Frear v. Williams, 7 Baxt. (Tenn.)
550; In re Knapen’s Will, 75 Vt. 146,
53 Atl. 1003, 98 Am. St. 808.

50 Wright v. Wright, 5 Ind. 389;
In re Penniman’s Will, 20 Minn. 245,
18 Am. Rep. 368.

51 Phillipe v. Clevengor, 239 Ill.
117, 87 N. E. 858, 16 Ann. Cas. 207;
In re Brown’s Estate, 139 Iowa 219,
117 N. W. 260; In re Teopper’s
Estate, 12 N. Mex. 372, 78 Pac. 53, 67
L. R. A. 315,

52 Shorten y. Judd, 60 Kans. 73, 55
Pac. 286; Donaldson v. Hall, 106
Minn. 502, 119 N. W. 219, 20 L. R.
A. (N. S.) 1073, 130 Am. St. 621, 16
Ann. Cas. 541; Baacke v. Baacke, 50
Nebr. 18, 69 N. W. 303; Hoitt v.
Hoitt, 63 N. H. 475, 3 Atl. 604, 56
Am. Rep. 530; In re Newlin’s Estate,
209 Pa. 456, 58 Atl. 846, 68 L. R. A.
464; Glascott v. Bragg, 111 Wis. 605,
87 N. W. 853, 56 L. R. A. 258.
§ 467 WILLS 414
quent change of conditions or circumstances of the testator which
will produce a revocation is left to be determined by the courts
from the facts of each particular case. Such implied revocation
may result from a change in the testator’s family, his property,
or the beneficiaries.”*

The statutes of a few states designate or specify what changes
in the condition or circumstances of the testator shall operate
as a revocation of the will,°* while in others revocation by impli-

cation is entirely abolished.”

§ 467. By marriage, and by marriage and birth of issue.—
At common law the marriage of a woman after the execution of
her will revoked the will, whether she survived her husband or
not, and by statute in a majority of the states of this country
this rule is expressly declared, but in some the will is revived if
she survives her husband.°* In many jurisdictions the incapacity
of married women to make wills has been removed by statute,
and if her marriage operated to revoke her pre-existing will, she
might, by republishing it, or by executing a will of like tenor,
avoid the effect of such implied revocation; but in most of the
states this removal of her want of capacity has been determined to
be in effect the removal of all the reasons of the common-law
rule, and therefore to make the rule itself obsolete, and to leave
her antenuptial will in full force.*

At common law the marriage of a man did not revoke his will,
and this is the rule in this country, unless expressly abrogated
by statute.°* In several states, statutes have been enacted pro-

53 Graham v. Burch, 47 Minn. 171,

nulty v. McAnnulty, 120 Ill. 26, 11 N.
49 N. W. 697, 28 Am. St. 339, ,

E. 397, 60 Am. Rep. 552,

54 See Digest of Statutes, ch. 28.

55In re Comassi’s Estate, 107 Cal.
1, 40 Pac. 15, 28 L. R. A. 414; Rhode
Island Hospital Trust Co. v. Keith,
26 R. I. 42, 57 Atl. 1060.

56See post, ch. 28. See also
Blodgett v. Moore, 141 Mass. 75, 5
N. E. 470; Swan v. Hammond, 138
Mass. 45, 52 Am. Rep. 255; McAn-

57 Noyes v. Southworth, 55 Mich.
173, 20 N. W. 891, 54 Am. Rep. 359;
Fellows v. Allen, 60 N. H. 439, 49
Am. Rep. 328; Webb v. Jones, 36 N.
J. Eq. 163; Morton vy. Onion, 45 Vt.
145; In re Ward’s Will, 70 Wis. 251,
35 N. W. 731, 5 Am. St. 174.

58 In re Goodsell’s Appeal, 55 Conn.
171, 10 Atl. 557; Bowers v. Bowers,
53 Ind. 430; Hoitt v. Hoitt, 63 N.
415 REVOCATION § 467
viding that the marriage of a man or woman revokes his or her
will, unless the will makes provision in contemplation of the
marriage, or otherwise shows that the marriage is not to re-
voke it.”

At common law the marriage of a man or woman, if followed
by the birth of issue, revoked his or her will made prior to the
marriage,°° but the birth of a child did not revoke a will made
after marriage, as the testator was presumed to contemplate such
event.**

The statutes of descent and distribution in many states have
greatly modified the common law, and the rule now generally
prevails that if a testator makes his will after his marriage,
either while he is wholly childless, or while he has one or more
children living, and a child is afterwards born to him, and he
subsequently dies without expressly revoking his will or making
any provision for such child, and especially where any consid-
erable time elapsed between the making of the will and his
death, and a change has taken place in his financial circumstances,
he will be presumed to have intended either an entire revocation
of his will, or such revocation pro tanto as permitted the child
to take the same share in his estate as if he died intestate.”

It is generally held that an adopted child is not regarded as
issue of the marriage, and consequently such adoption does not
operate to revoke a previously executed will of the adopting

H. 475, 3 Att. 604, 56 Am. Rep. 530;
In re Ward’s Will, 70 Wis. 251, 35 N.
W. 731, 5 Am. St. 174. Contra: Mor-
gan v. Ireland, 1 Idaho 786.

59 Gay v. Gay, 84 Ala. 38, 4 So. 42;
Corker v. Corker, 87 Cal. 643, 25 Pac.
922; McAnnulty vy. McAnnulty, 120
Ill. 26, 11 N. E. 397, 60 Am. Rep.
552; Byrd v. Surles, 77 N. Car. 435;
In re Fidelity Insurance T. & S. D.
Co.’s Appeal, 121 Pa. St. 1, 15 Atl.
484.

60 Gay v. Gay, 84 Ala. 38, 4 So. 42;
In re Goodsell’s Appeal, 55 Conn.
171, 10 Atl. 557; Sutton v. Hancock,

115 Ga. 857, 42 S. E. 214; Shorten v.
Judd, 60 Kans. 73, 55 Pac. 286.

61 Sutton v. Hancock, 115 Ga. 857,
42 S. E. 214; Baldwin v. Spriggs, 65
Md. 373, 5 Atl. 295; Hoitt v. Hoitt,
63 N. H. 475, 3 Atl. 604, 56 Am. Rep.
530.

62 Hughes v. Hughes, 37 Ind. 183;
Negus v. Negus, 46 Iowa 487, 26 Am.
Rep. 157; Sneed v. Ewing, 5 J. J.
Marsh (Ky.) 460, 22 Am. Dec. 41;
Evans v. Anderson, 15 Ohio St. 324;
Johnston v. Johnston, 1 Phillim. 447.
Contra: Baldwin v. Spriggs, 65 Md.
373, 5 Atl. 295.
§ 468

parent.**

WILLS

416

And this rule has been held to be true even when the

statute declares that the person adopting and the child adopted
shall sustain the legal relation of parent and child.“* But it has
been held that the adoption of a child by a testator subsequent
to the execution of a will by the adopting parent has the effect

to revoke the will.®

§ 468. Revocation by divorce.—The rule is well settled
that a divorce alone does not revoke a previously executed will.
But there is a sharp conflict of judicial opinion on the effect of
a decree of divorce when the property rights of the parties are
determined thereby, or are voluntarily settled by the acts of the
parties themselves either before or at the time the decree was
granted. It has been held in such case that the decree of divorce
following such settlement impliedly revokes the will.”

§ 469.

By sale or conveyance of property.—Prior to the

Statute of Uses a testator’s conveyance or contract of convey-
ance of his real estate had the effect of revoking his former
devise thereof even though the same estate became reinvested in

68

him during his life.

The law required that the same interest

which the testator had in the land when he made the will should
remain unaltered to the time of his death. The least alteration

of such interest amounted to a revocation of the will.®

63In re Commassi’s Estate, 107
_Cal. 1, 40 Pac. 15, 28 L. R. A. 414;
Davis v. King, 89 N. Car. 441.

64In re Gregory’s Estate, 15 Misc.
407, 37 N. Y. S. 925, 1 Gibbons, 490,
73 N.Y. St. 3.

65 Flannigan v. Howard, 200 Iil.
396, 65 N. E. 782, 59 L. R. A. 664, 93
Am. St. 201; Hilpire v. Claude, 109
Towa 159, 80 N. W. 332, 46 L. R. A.
171, 77 Am.’ St. 524.

66 Card v. Alexander, 48 Conn.
492, 40 Am. Rep. 187; In re Brown’s
Estate, 139 Iowa 219, 117 N. W. 260;
Donaldson v. Hall, 106 Minn. 502,
119 N. W. 219, 20 L. R. A. (N. S.)
1073, 130 Am. St. 621, 16 Ann. Cas,

Under

541; Baacke v. Baacke, 50 Nebr. 18,”
69 N. W. 303; Charlton v. Miller, 27
Ohio St. 298, 22 Am. Rep. 307; In
re Jones’ Estate, 211 Pa. 364, 60 Atl.
915, 69 L. R. A. 940, 107 Am. St. 581.

67 Wirth v. Wirth, 149 Mich. 687,
113 N. W. 306; Lansing v. Haynes,
95 Mich. 16, 54 N. W. 699, 35 Am. St.
545; Donaldson vy. Hall, 106 Minn.
502, 119 N. W. 219, 20 L. R. A. (N.
S.) 1073, 130 Am. St. 621, 16 Ann.
Cas. 541.

68 McGowan v. Elroy, 28 App. D.
C. 188; In re Benner’s Estate, 155
Cal. 153, 99 Pac. 715.

694 Kent Com. 530; Woolery v.
Woolery, 48 Ind. 523.
417

REVOCATION

§ 470

the modern rule, however, the will operates on such estate as he
may have at the time of his death, and is revoked only as to
that part which he has previously disposed of.”

A revocation pro tanto takes place in case of contracts to sell
the land devised, sales thereof reserving vendor’s lien,” or
mortgage or other incumbrance placed thereon by the testator.”

A subsequent sale and conveyance of property specifically de-

vised necessarily revokes the devise.™

But an invalid deed of

conveyance has no effect to revoke a previous devise of the same

land.”

The revocation is complete where the testator has di-

vested himself of all title or estate in the property,’® or where no
title can pass under the terms of the devise.”

An involuntary alienation of property previously devised will
revoke the will to the extent of the property so alienated. Thus,
where a portion of the land devised was afterward sold for
taxes,”* or taken under eminent domain proceedings,” the will
is revoked to the extent of the estate so sold or taken.

The doctrine of revocation of wills by subsequent conveyances

is sometimes confused with the doctrine of ademption.

The

latter doctrine, as we have seen, is predicable on bequests of per-
sonalty, while the former is predicable only on devises of real

estate.®°

§ 470. Revocation of joint or mutual wills—As a general
tule a joint or mutual will may be revoked by either of the

70 Bissell v. Heyward, 96 U. S. 580,
25 L. ed. 678; Moore v. Spier, 80
Ala. 129; Tillman’s Estate, 3 Cal.
Unrep. Cas. 677, 31 Pac. 563; Wood-
ward v. Woodward, 33 Colo. 457, 81
Pac. 322; Marshall v. Hartzfelt, 98
Mo. App. 178, 71 S. W. 1061; Dean
v. Jagoe, 46 Tex. Civ. App. 389, 103
S. W. 195.

71 Ostrander v. Davis, 191 Fed. 156,
111 C. C. A. 636; Welsh v. Pounders,
36 Ala. 668; Bruck v. Tucker, 32 Cal.
425.

72 Fields v. Carlton, 75 Ga. 554,

73 Stubbs v. Houston, 33 Ala. 555.

27—Tuomp. WILLS.

74Connecticut Trust &c. Co. v.
Chase, 75 Conn. 683, 55 Atl. 171. ;
75 Bennett v. Gaddis, 79 Ind. 347.

76 McGowan v. Elroy, 28 App. (D.
C.) 188; Epps v. Dean, 28 Ga. 533.

77 Howard v. Carusi, MacArthur &
M. (11 D.C.) 260.

78 Borden v. Borden, 2 R. I. 94.

79 Ametrano v. Downs, 170 N. Y.
388, 63 N. E. 340, 58 L. R. A. 719, 88
Am. St. 671.

80In re Brown’s Estate, 139 Iowa
219, 117 N. W. 260; Gregg v. Mc-
Millan, 54 S. Car. 378, 32 S. E. 447.
418

§ 470 WILLS

comakezs, provided it was not made in pursuance of any con-
tract.** But where such will has been executed in pursuance of
a compact or agreement entered into by the testators to devise
their property to certain designated beneficiaries, subject to a
life estate or other interest in the survivor, it is generally held
irrevocable when, upon the death of one, the survivor avails
himself of the benefits of the devise in his favor.*

But, in the absence of a valid contract, the mere concurrent
execution of the will, with full knowledge of its contents by
both testators, is not enough to establish a legal obligation to
forbear revocation.*? However, mutual wills executed in pur-
suance of a contract are not irrevocable in such sense that one
of the makers can not make a subsequent will which will be en-
titled to probate, although the remedy for breach of-such con-
tract may be enforceable in a court of equity.**

81 Coveney v. Conlin, 20 App. (D. 2 So. 624, 60 Am. Rep. 107; Baker

C.) 303; Hill v. Harding, 92 Ky. 76,
17 S. W. 199; Edson v. Parsons, 155
N. Y. 555, 50 N. E. 265; Coghlin v.
Coghlin, 26 Ohio C. C. 18; Sapping-
field v. King, 49 Ore. 102, 89 Pac. 142,
90 Pac. 150,8 L. R. A. (N. S.) 1066;
Cawley’s Estate, 136 Pa. St. 628, 20
Atl. 567, 10 L. R. A. 93; Buchanan
vy. Anderson, 70 S. Car. 454, 50 S.
E. 12.

82 Frazier v. Patterson, 243 Ill. 80,
90 N. E. 216, 27 L. R. A. (N. S.)
508; Brown v. Webster, 90 Nebr. 591,
134 N. W. 185, 37 L. R. A. (N. S.)
1196; Bolman v. Overall, 80 Ala. 451,

v. Syfritt, 147 Iowa 49, 125 N. W.
998; Prince v. Prince, 64 Wash. 552,
117 Pac. 255; Deseumeur v. Rondel,
76 N. J. Eq. 394, 74 Atl. 703.

83 Edson v. Parsons, 155 N. Y. 555,
50 N. E. 265; Coveney v. Conlin, 20
App. (D. C.) 303.

84In re Keep, 17 N. Y. St. 812,
2.N. Y. S. 750; Peoria Humane Soc.
v. McMurtrie, 229 Ilfl, 519, 82 N. E.
319; Buchanan v. Anderson, 70 S.
Car. 454, 50 S. E. 12; Wyche v.
Clapp, 43 Tex. 543; Gould v. Mans-
field, 103 Mass. 408, 4 Am. Rep. 573.
CHAPTER XXV

REPUBLICATION AND RE-EXECUTION

SECTION SECTION
475. Republication at common law. 478. Republication by codicil.
476. Republication under statutes. 479. Effect of republication.

477, Revival depending on intention 480. Re-execution of wills.
of testator.

§ 475. Republication at common law.—At common law
a revoked will of real or personal property could be revived or
republished by an informal writing, or even by acts or declara-
tions of the testator evincing an intention to revive it.” But a
will impliedly revoked by a change in the testator’s condition or
circumstances was not revived by the fact that such change
ceased to exist.? Under this law if a testator made a second
will by which he virtually or expressly revoked the first, but kept
the first undestroyed and uncanceled, his cancelation or destruc-
tion of the second will repealed his revocation of the first, and
thus revived the first.’

But the ecclesiastical courts did not permit a revival or republi-
cation of a former will by virtue of the revocation of a subse-
quent will, unless such was clearly the intention of the testator.*

§ 476. Republication under statutes.—Statutes have been
enacted in many jurisdictions abolishing the common-law rule
that the revocation or destruction of a will revives and leaves

1 Harwell v. Lively, 30 Ga. 315, 76 64 Am. Dec. 598; In re Gould, 72 Vt.
Am. Dec. 649; Bohanon v. Walcot, 316, 47 Atl. 1082, 6 Prob. Rep.
1 How. (Miss.) 336, 92 Am. Dec. Ann. 1.

631; Jones v. Hartley, 2 Whart. 4Williams v. Miles, 68 Nebr. 463,

(Pa.) 103. 94 N. W. 705, 96 N. W. 151, 62 L. R.
2Brown v. Clark, 77 N. Y. 369; A. 383, 110 Am. St. 431; Marsh v.
Long v. Aldred, 3 Add. Eccl. 48. Marsh, 48 N. Car. 77, 64 Am. Dec.

3 Randall v. Beatty, 31 N. J. Eq. 598.
643; Marsh v. Marsh, 48 N. Car. 77,

419
420

§ 477 WILLS

in force pre-existing wills. Under the influence of these statutes
the courts have almost universally held that a will revoked by
a subsequent will can not be revived by the revocation of the
latter will; also that the revival or republication of a revoked
will is equivalent to the making of a new will, and that the same
formalities must be observed.®

Where the statute requires certain formalities in the execution
of a will, the revival of a duly executed will that has been re-
voked by implication can only be accomplished by a re-execution
of the will.”

§ 477. Revival depending on intention of testator.—Some
courts have held that whether the old will shall be revived or not
depends upon the testator’s intention in revoking the last will,®
though the last may have contained a clause expressly revoking
the first ;° and that such intention may be gathered from all the
circumstances of the case, including the declarations of the tes-
tator at the time of or after the revocation.”

But it is provided by statute in a number of states that when
a testator duly executes a second will, the revocation thereof
shall not revive the will revoked by it, unless it appears by the

5 Harwell v. Lively, 30 Ga. 315, 76
Am. Dec. 649; State v. Crossley, 69
Ind. 203; Colvin v. Warford, 20 Md.
357; Wallis v.. Wallis, 114 Mass. 510;
Scott v. Fink, 45 Mich. 241, 7 N. W.
799; Beaumont v. Keim, 50 Mo. 28;
Hawes v. Nicholas, 72 Tex. 481, 10 S.
W. 558, 2 L. R. A. 863.

6 Barker y. Bell, 46 Ala. 216; Wit-
ter vy. Mott, 2 Conn. 67; Carey v.
Baughn, 36 Iowa 540, 14 Am. Rep.
534; P’Pool v. P’Pool, 121 Ky. 588,
89 S. W. 687, 28 Ky. L. Rep. 539; In
re Penniman, 20 Minn. 245 (Gil.
220), 18 Am. Rep. 368; Brown v.
Clark, 77 N. Y. 369; Sawyer v. Saw-
yer, 52 N. Car. 134; Broe v. Boyle,
108 Pa. St. 76; Warner v. Warner,
37 Vt. 356.

7 Carey v. Baughn, 36 Iowa 540, 14

Am. Rep. 534; Stewart v. Mulhol-
land, 88 Ky. 38, 10 S. W. 125, 10 Ky.
L. 824, 21 Am. St. 320; Brown v.
Clark, 77 N. Y. 369; Means v. Ury,
141 N. Car. 248, 53 S. E. 850.

8 Pickens v. Davis, 134 Mass. 252,
45 Am. Rep. 322; Gould’s Will, 72
Vt. 316, 47 Atl. 1082, 6 Prob. Rep.
Ann. 1,

9 Colvin v. Warford, 20 Md. 357;
Williams v. Williams, 142 Mass. 515,
8 N. E. 424; Williams v. Miles, 68
Nebr. 463, 94 N. W. 705, 96 N. W.
151, 62 L. R. A. 383, 110 Am. St. 431,
4 Ann. Cas. 306, 8 Prob. Rep. Ann.
621; Randall v. Beatty, 31 N. J. Eq.
643; Flintham vy. Bradford, 10 Pa.
St. 82.

10 Gould’s Will, 72 Vt. 316, 47 Atl.
1082.
421 REPUBLICATION AND RE-EXECUTION § 478

terms of such revocation that it was the testator’s intention to
revive his former will.™

§ 478. Republication by codicil—A codicil, duly signed,
attested, and annexed to a will, operates as a republication of
the whole will as it existed at the time of the publication of the
codicil.” But a codicil does not have this effect where it is not
properly executed.**

It is generally held that a will imperfectly executed or attested
will be republished by a duly executed codicil.** Also a duly exe-
cuted codicil will operate to republish a will executed under
undue influence ;** likewise one executed while the testator was
under some disability, provided the disability did not exist at the

time he executed the codicil.7®

11 Alabama: Civil Code (1907),
§ 6175; Arkansas: Dig. of Stat.
(1904), § 8014; California: Fairall’s
Civil Code Proc. (1916), § 1970;
Idaho: Civil Code (1908), § 5734;
Indiana: Rev. Stat. (Burns 1914),
§ 3115; Kansas: Gen. Stat. (1909),
§ 9815; Missouri: Rev. Stat. (1909),
§ 543; Montana: Civil Code (1908),
§ 4745; Nevada: Compiled Laws
(1912), § 6210; New Mexico: Com-
piled Laws (1915), 8 5868; New
York: 1B. C. & G. Comp. Laws
(1909), § 41; North Dakota: Rev.
Codes (1913), § 5665; Ohio: Ann.
Code (1912), § 10562; Oklahoma:
Rev. Laws (1910), § 8363; Oregon:
Lord Ann. Stat. (1910), § 7328;
South Dakota: Comp. Laws (1913),
§ 1022, p. 186; Utah: Rev. Stat.
(1907), § 2753; Washington: Rem. &
Ball. Codes & Stat. (1910), § 1329.

12 Pope v. Pope, 95 Ga. 87, 22 S. E.
245; Shaw v. Camp, 163 Ill. 144, 45
N. E. 211, 36 L. R. A, 112; Hawke v.

A codicil can not have the effect

Euyart, 30 Nebr. 149, 46 N. W. 422,
27 Am. St. 391; Vogel v. Lehritter,
139 N. Y. 223, 34 N. E. 914; Gilmor’s
Estate, 154 Pa. St. 523, 26 Atl. 614,
35 Am. St. 855; Skinner v. Amer-
ican Bible Soc, 92 Wis. 209, 65 N.
W. 1037.

13 Vestry of St. John’s Parish v.
Bostwick, 8 App. (D. C.) 452; Love
v. Johnston, 12 Ired. L. (N. Car.)
355.

14Burge v. Hamilton, 72 Ga. 568;
Camp v. Shaw, 52 Ill. App. 241; In
re Murfield, 74 lowa 479, 38 N. W.
170; Gaude v. Baudoin, 6 La. 722;
Harvy v. Chouteau, 14 Mo. 587, 55
Am. Dec. 120; McCurdy v. Neall, 42
N. J. Eg. 333, 7 Atl. 566; In re Wal-
ton’s Estate, 194 Pa. St. 528, 45 Atl.
426.

15 Cook v. White, 43 App. Div. 388,
60 N. Y. S. 153,

16 Brown v. Riggin, 94 Ill. 560;
Mattet of Emmons, 110 App. Div.
701, 96 N.Y. S. 509,
§ 479 WILLS 422
to revive a will that has been destroyed,*” unless such was the

intention of the testator as shown by the codicil.*

§479. Effect of republication——The republication or re-
vival of a will has the effect to bring it down to the date of such
republication, and to make it speak as of that date.** The re-
published will is held to pass property acquired after it was first
executed if such would be a reasonable interpretation of the
language written at the date of republication.” If no contrary
‘intention appears or exists such after-acquired property will
pass.*

While the execution of a codicil republishes the will, it does
not prevent the ademption of specific legacies given by the will,
nor does it validate such as have been adeemed.”

§ 480. Re-execution of wills—When a will is defectively
executed, or was executed when the testator had not capacity
to make a will, it should be re-executed, and when this is ac-
complished with all the formalities required, it is valid, no matter
what defects may have originally existed in its execution.2* A
testator may desire to re-execute a will executed in a foreign
jurisdiction. In all such cases re-execution is best accomplished
by repeating the testimonium and attestation clauses and having

testator and witnesses sign with the required formalities.

17 Williams v. Miles, 68 Nebr. 463,
04 N. W. 705, 96 N. W. 151, 62 L.
R. A. 383, 110 Am. St. 431, 4 Ann.
Cas. 306, 8 Prob. Rep. Ann. 621;
Matter of Trost, 38 Misc. 404, 77 N.
Y. S. 879.

18 Francis y. Marsh, 54 W. Va. 545,
46 S. E. 573.

19JTn re Murfield, 74 Iowa 479, 38
N. W. 170; Sharp v. Wallace, 83
Ky. 584, 7 Ky. L. 558; Hawke v.
Euyart, 30 Nebr. 149, 46 N. W. 422,
27 Am. St. 391; Brown v. Clark, 77
N. Y. 369; Murray v. Oliver, 41 N.
Car. 55; Gilmor’s Estate, 154 Pa. St.
523, 26 Atl. 614, 35 Am. St. 855.

20Haven v. Foster, 14 Pick.
(Mass.) 534; Drayton v. Rose, 7,

Rich. Eq. (S. Car.) 328, 64 Am. Dec. .
731.

21 Goodtitle ex dem. Woodhouse v.
Meredith, 2 Maule & Sel. 5.

22Tauton v. Keller, 167 Ill. 129, 47
N. E. 376; Langdon v. Astor, 16 N.
Y. 9.

23 Burge v. Hamilton, 72 Ga. 568;
In re Murfield, 74 Iowa 479, 38 N.
W. 170; Harvy v. Chouteau, 14 Mo.
587, 55 Am. Dec. 120; Barney v.
Hays, 11 Mont. 571, 29 Pac. 282, 28
Am. St. 495; McCurdy v. Neall, 42
N. J. Eq. 333, 7 Atl. 566; Stover v.
Kendall, 1 Cold. (Tenn.) 557; Skin-
ner v. American Bible Soc., 92 Wis.
209, 65 N. W. 1037.
CHAPTER XXVI

PROBATE OF WILLS

SECTION SECTION
485. Probate of wills in general. 498. Evidence and burden of proof.
486. Rights and interests under un- 499. Time of competency of wit-
probated wills. nesses,
487. Place of probate. 500. Probate where will valid in part
488. What must be probated. only.
489. Production of will for probate. 501. Probate of conditional and al-
490. Who may be proponent of a ternative wills.
will. 502. Probate of joint, double, mutual,
491. Jurisdiction of courts in probate -and simultaneous wills.
of wills. 503. Probate of nuncupative wills.
492. Form and contents of applica- 504. Procedure to establish and pro-
tion. bate lost or destroyed will.
493. Notice of proceedings for pro- 505. Degree of proof required to es-
bate. tablish a lost or destroyed will.
494, Probate in common form. 506. Probate of foreign wills.
495. Probate in solemn form. 507. Uniform foreign probate law.
496. Repropounding a will once pro- 508. The effect of probate.
bated or rejected. 509. Revocation of probate.

497. Hearing where application not
formally contested.

§ 485. Probate of wills in general—Before any will can
have any force or validity it must be probated. To probate a
will means to prove before some officer or tribunal, vested by law
with authority for that purpose, that the instrument offered to
be proved is the last will and testament of the deceased person
whose testamentary act it is alleged to be, and that it has been
executed, attested and published as required by law, and that
the testator was of sound and disposing mind.*. In other words
the probate of a will is a civil proceeding to establish the validity

1 Pettit v. Black, 13 Nebr. 142, 12 N. W. 841.

423
424

§ 486 WILLS

of a will.’ It is a proceeding in rem,°* calling for the exercise of
the judicial powers of the court.*

"The probate of a will of real estate was unknown to the com-
mon law, but a will of personal property was probated in the
ecclesiastical courts. So in the absence of a statute there is no
necessity for the probate of a will of real estate, and in order
that the will operate as a conveyance of the land it must be proved
in a suit by proof of the testator’s signature.® But by statute in
most of the states of this country wills of both real and personal
property are expressly required to be probated,’ and any attempt
by provision in the will to dispense with this statutory require-
ment will be fruitless.®

§ 486. Rights and interests under an unprobated will.—
Until a will is duly probated the courts will not recognize, in an
action, any powers of a person named in the will as executor,®
nor any title of a devisee or legatee under the will.*° The will

2Lamb’s Estate v. Hall, 122 Mich.
239, 80 N. W. 1081; McCay v. Clay-
ton, 119 Pa. St. 133, 12 Atl. 860.

3 Dickey v. Vann, 81 Ala. 425, 8 So.
195; In re Davis’ Estate, 151 Cal. 318,
86 Pac. 183, 90 Pac. 711, 121 Am.
St. 105; Torrey v. Bruner, 60 Fla.
365, 53 So. 337; Johns v. Hodges, 62
Md. 525; Old Colony Trust Co. v.
Bailey, 202 Mass. 283, 88 N. E. 898;
Stevens v. Hope, 52 Mich. 65, 17 N.
W. 698; Bradford v. Blossom, 207
Mo. 177, 105 S. W. 289; State v.
Twelfth Judicial Dist. Ct, 34 Mont.
96, 85 Pac. 866, 6 L. R. A. (N. S.)
617, 115 Am. St. 510.

4Fotheree v. Lawrence, 30 Miss.
416; Stowe v. Stowe, 140 Mo. 594,
41 S. W. 951; Snuffer v. Howerton,
124 Mo. 637, 28 S. W. 166; Ryno v.
Ryno, 27 N. J. Eq. 522; McClure v.
Spivey, 123 N. Car. 678, 31 S. E. 857;
Stout v. Young, 217 Pa. 427, 66 Atl.
659,

5 Armstrong v. Lear,
(U. S.) 169, 6 L. ed. 589,

12 Wheat.

6Campbell v. Porter, 162 U. S.
478, 16 Sup. Ct. 871, 40 L. ed. 1044;
Robertson v. Pickrell, 109 U. S. 608,
3 Sup. Ct. 407, 27 L. ed. 1049; Ar-
rington v. McLemore, 33 Ark. 759;
Young v. Norris Peters Co., 27 App.
(D. C.) 140.

7 Campbell v. Porter, 162 U. S. 478,
16 Sup. Ct. 871, 40 L. ed. 1044; Good-
man v. Winter, 64 Ala. 410, 38 Am.
Rep. 13; Chilcott v. Hart, 23 Colo.
40, 45 Pac. 391, 35 L. R. A. 41;
Rogers v. Rogers, 78 Ga. 688, 3 S.
E. 451.

8 Sharp v. Hall, 86 Ala. 110, 5 So.
497, 11 Am. St. 28; Sevier v. Wood-
son, 205 Mo. 202, 104 S. W. 1, 120
Am, St. 728.

"Brock v. Frank, 51 Ala. 85;
Johnes v. Jackson, 67 Conn. 81, 34
Atl. 709.

10 McClaskey v. Barr, 54 Fed. 781;
Knox v. Paull, 95 Ala. 505, 11 So.
156; Crow v. Powers, 19 Ark. 424;
Turner v. McDonald, 76 Cal. 177, 18
Pac. 262, 9 Am. St. 189; Thomasson
425 PROBATE § 487
is wholly ineffectual as an instrument of title until it is duly
probated.**

But after probate the powers and titles under the will relate
back to the date of the testator’s death. Thus a will may be used
as evidence of a title though probated after the bringing of the
suit in which it is used.** In the absence of probate of a will
the deceased is presumed to have died intestate,** and his real
estate descends to his heirs and next of kin under the law of

intestate succession.**

§ 487. Place of probate-——The probate of a will, in the
first instance, should be made in the place of the testator’s domi-
cile at the time of his death.° What the last domicile of the
testator may be is to be inferred from all the facts and circum-
stances of the case. It embraces the fact of residence and the
intention to remain indefinitely. A mere temporary residence
in any county does not give the courts of that county exclusive
jurisdiction. The will must be prcbated in the place of the tes-
tator’s domicile regardless of where he died,*® or where the will
was executed.” Recitals in the will are not conclusive evidence

of the testator’s domicile.*®

Where a testator left real estate in a state other than that of
his domicile, the will may be probated in any county in which

v. Driskell, 13 Ga. 253; Hartwell v.
Parks, 240 Mo. 537, 144 S. W. 793;
Pettit v. Black, 13 Nebr. 142, 12 N.
W. 841; Lake v. Hood, 35 Tex. Civ.
App. 32, 79 S. W. 323.

11Inge v. Johnston, 110 Ala. 650,
20 So. 757; Janes v. Williams, 31
Ark. 175; Chidsey v. Brookes, 130
Ga. 218, 60 S. E. 529, 14 Ann. Cas.
975; Harris v. Douglas, 64 Ill. 466;
Pitts v. Melser, 72 Ind. 469; Meyers
v. Smith, 50 Kans. 1, 31 Pac. 670;
Cousens v. Advent Church, 93 Maine
292, 45 Atl. 43, 5 Prob. Rep. Ann.
312; Mackey v. Mackey, 71 N. J. Eq.
686, 63 Atl. 984.

12 White v. Keller, 68 Fed. 796, 15
C. C. A. 683; Watson v. Alderson,

146 Mo. 333, 48 S. W. 478, 69 Am.
St. 615.

13 Adams v. Phillips, 132 Ge. 455,
64 S. E. 467.

14 Miller v. Speight, 61 Ga. 460.

15 McDonnell v. Farrow, 132 Ala.
227, 31 So. 475; Corrigan v. Jones,
14 Colo. 311, 23 Pac. 913; Godwin v.
Godwin, 129 Ga. 67, 58 S. E. 652.

16 Shultz v. Houck, 29 Md. 24;
Converse v. Starr, 23 Ohio 491.

17 Olson’s Will, 63 Iowa 145, 18 N.
W. 854; Stewart v. Pettus, 10 Mo.
755; Converse v. Starr, 23 Ohio 491.

18 Merrill v. Morrissett, 76 Ala.
433; Corrigan v. Jones, 14 Colo. 311,
23 Pac. 913.
§ 488 WILLS 426
any of the land lies. If he left personal property only within
the state, the will may be probated in any county.” Where the
only disposition in a will consists of real estate situated in an-
other jurisdiction,” or of personal property situated in another
jurisdiction, the courts of the testator’s domicile sometimes re-
fuse to entertain probate jurisdiction thereof.”

The will of a married woman must be offered for original
probate in the jurisdiction in which her surviving husband is
domiciled regardless of where she died.” The probate of a will
where the property of the testator is situated, without reference
to his domicile, is termed an “ancillary” probate, and affects
the property situated in such jurisdiction alone.” An ancillary
probate is not precluded by the action of the court of the testator’s
domicile in admitting the will to probate there.”

§ 488. What must be probated.—All instruments of a
testamentary character must be probated in order to become op-
erative to transfer title to either real or personal property.” So
an instrument which neither disposes of property nor appoints
an executor is not testamentary in character, and, consequently,
is not entitled to probate,”* although it be executed with all the
formalities required by law.”

A codicil should be probated, even though it contains nothing

19 Jaques v. Horton, 76 Ala. 238; 39. But see Meyers v. Smith, 50

Ewing v. Mallison, 65 Kans. 484, 70
Pac. 369, 93 Am. St. 299; Stewart v.
Pettus, 10 Mo. 755.

20In re Earhart, 50 La. Ann. 524,
23 So. 476.

21In re Goods of Tamplin, L. R.
(1894) Prob. 39.

22 Wicke’s Estate, 128 Cal. 270, 60
Pac. 867, 49 L. R. A. 138.

23 Robertson v. Pickrell, 109 U. S.
608, 3 S. Ct. 407, 27 L. ed. 1049;
Gordon’s Will, 50 N. J. Eq. 397, 26
Atl. 268; Pepper’s Estate, 148 Pa. St.
5, 23 Atl. 1039; Tarbell v. Walton,
71 Vt. 406, 45 Atl. 748; Frame v.
Thérmann, 102 Wis. 653, 79 N. W.

Kans. 1, 31 Pac. 670.

24Frame v. Thormann, 102 Wis.
653, 79 N. W. 39.

25 Rogers v. Stevens, 8 Ind. 464;
Shumway v. Holbrook, 1 Pick.
(Mass.) 114, 11 Am. Dec. 153; Snuf-
fer v. Howerton, 124 Mo. 637, 28 S.

.W. 166; Pettit v. Black, 13 Nebr.

142, 12 N. W. 841; Woodbridge v.
Banning, 14 Ohio St. 328; In re John,
30 Oreg. 494, 47 Pac. 341, 50 Pac. 226,
36 L. R. A. 242,

26 Coffman v. Coffman, 85 Va. 459,
8 S. E. 672, 2 L. R. A. 848, 17 Am.
St. 69.

27 Lucas v. Brooks, 18 Wall. (U.
S.) 436, 21 L. ed. 779.
427 PROBATE § 488
but the revocation of a former will.?* But a will may be pro-
bated even though the codicil can not be found, for it may op-
erate separate and apart from the codicil.”

So, also, if properly attested, must-a deed be probated, or a
bill of exchange, or a_promissory note.**

Where a will which has been executed in due form, refers to
some paper which has not been so executed as containing direc-
tions in regard to the disposition of the testator’s property, such
paper, if in existence, and clearly identified as the one referred
to in the will, is made by such reference a part of the will, and
should be probated as such.** But where such extraneous paper
referred to is the property of another person who refuses to give
it up, the court will not require him to produce it, but will direct
the probate of the will without the incorporation of such paper.**

Schedules, notes and other papers may be considered in con-
nection with the will, and as a part of it, when they are plainly
identified in the will. This was held to be the case where notes
payable at the death of the testator were folded up with his will,
and were clearly and fully identified, and remained in his pos-
session at the time of his death.** “If a will, executed and wit-
nessed as required by statute, incorporates in itself by reference
any document or paper not so executed and witnessed, whether
the paper referred to be in the form of a will or codicil, or of a
deed or indenture, or of a mere list or memorandum, the paper so
referred to, if it was. in existence at the time of the execution
of the will, and is identified by clear and satisfactory proof as

28Laughton v. Atkins, 1 Pick. Rep. 449; Newton v. Seaman’s
(Mass.) 535. Friend Soc. 130 Mass. 91, 39 Am.

29 Sternberg’s Estate, 94 Iowa 305, Rep. 433; Fosselman v. Elder, 98 Pa.
62 N. W. 734. St. 159; Allen v. Maddock, 11 Moore

30 Frew v. Clarke, 80 Pa. St. 170. P. C. 427.

31 Jones v. Nicolay, 2 Rob. (Eccl.) 83 Goods of Sibthrop, L. R. 1 P.
288; Cover v. Stem, 67 Md. 449,10 & D. 106.

Atl. ‘231, 1 Am. St. 406. 34 Fickle v. Snepp, 97 Ind. 289, 49

32JIn re Shillaber’s Estate, 74 Cal.
144, 15 Pac. 453, 5 Am. St. 433;
Fickle v. Snepp, 97 Ind. 289, 49 Am.

Am. Rep. 449; Fesler v. Simpson, 58
Ind. 83,
§ 489 WILLS 428
the paper referred to therein, takes effect as part of the will, and

should be admitted to probate as such.’

§ 489. Production of will for probate-——Some states pro-
vide an official depositary for a will from the time of its execu-
tion until it is required for probate. But in most jurisdictions the
right of custody and control remains with the testator, and where
he has been reticent about the matter of its execution, it is often
difficult to determine after his death, whether he left a will or not.
Any person having the custody or possession of the will of a
decedent may be required to produce it for probate.** If any
person is interested in the estate, or if he has reason to believe
that he is a legatee or devisee under the will of any decedent, he
may apply for a citation to have the will produced.*’

Statutes sometimes prescribe a penalty for withholding a will
from probate,** and where the wrongdoer is a beneficiary under
the will so withheld, it is generally provided that he forfeits his
rights thereunder.*® If the person withholding the will from
probate is entitled by law or the will to administer the estate of
the testator, he is held to renounce the right by his act of with-
holding the will.*°

§ 490. Who may be proponent of a will.—It was formerly
the rule that the executor named in the will was the only person
who had the right and duty of propounding the will for admission
to probate,** and by statute in a few states the primary right to
offer the will for probate belongs to the executor, if one is named,

35 Newton v. Seaman’s Friend Soc.,
130 Mass. 91, 39 Am. Rep. 433.

86 Walch v. Orrell, 53 Colo. 361,
127 Pac. 141; Coulter v. People, 53
Colo. 40, 123 Pac. 647.

37 Foster v. Foster, 7 Paige (N.
Y.) 48.

38In re Storey, 120 Ill. 244, 11 N.
E. 209; Loring v. Oakey, 98 Mass.
267; Richardson v. Fletcher, 74 Vt.
217, 52 Atl. 1064.

év Foote v. Foote, 61 Mich. 181, 28

N. W. 90; Carpenter vy. Denoon, 29
Ohio 379.

40 Keith v. Proctor, 114 Ala. 676,
21 So. 502.

41 Baker v. Bancroft, 79 Ga. 672,
5 S. E. 46; In re Wells’ Will, 5 Litt.
(Ky.) 273; In re Hodnett, 65 N. J.
Eq. 329, 55 Atl. 75; Lindemann v.
Dobossy (Tex. Civ. App.), 107 S.
W. 111; Ward v. Brown, 53 W. Va.
227, 44 S. E. 488; Wankford v.
Wankford, 1 Salk. 299, 91 Eng. Re-
print 265.
429 PROBATE § 491
and a party interested may act only where none is named or the
executor is dead, non-resident, or refuses to act.4? But under
most modern statutes, any devisee or legatee named in the will,
or any person interested in the estate, may be a proponent.*
Under these statutes it is generally held that the executor named
in the will may propound the instrument for probate.**

Under other statutes it is expressly provided that the will may
be exhibited by any person and proof may be immediately taken
ex parte;*® but usually when the will is thus presented by a
stranger the statutes provide that notice shall be given to the ex-
ecutor or others interested in its provisions. In the absence of
any statutory provision to the contrary, the person offering the
will for probate must have an interest as executor or otherwise,*®
but the application may be made by his agent or attorney,*’ and
- any interest, however slight, and even, it seems, the bare possi-
bility of an interest, is sufficient to entitle one to propound a will
for probate.“ ‘Whoever has a right to offer a will in evidence,

or to take title under it, may insist on having it proved.”*

§ 491.

Jurisdiction of courts in the probate of wills.—

Courts whose jurisdiction is confined wholly to matters pertain-

42Finch v. Finch, 14 Ga. 362;
Ward v. Brown, 53 Wa. Va. 227, 44
S. E. 488. ‘

43 McGrews v. McGrews, 1 Stew.
& P. (Ala.) 30; Stone v. Huxford, 8
Blackf. (Ind.) 452; Miller v. Coul-
ter, 156 Ind. 290, 59 N. E. 853; Wells
v. Wells, 4 T. B. Mon. (Ky.) 152, 16
Am. Dec. 150; Lytle’s Succession, 1
Rob. (La.) 268; Keniston v. Adams,
80 Maine 290, 14 Atl. 203; Stebbins
v. Lathrop, 4 Pick. (Mass.) 33; Mat-
ter of Weston, 60 Misc. 275, 113 N.
Y. S. 619; Enloe v. Sherrill, 28 N.
Car. 212; Roberts v. McMillan, 9 Lea
(Tenn.) 571; Elwell v. Universalist
General Convention, 76 Tex. 514, 13
S. W. 552; Lindemann v. Dobossy
(Tex. Civ. App.), 107 S. W. 111;
Schultz v. Schultz, 10 Grat. (Va.)
358, 60 Am. Dec. 335.

44Kennard vy. Kennard, 63 N. H.
303.

45 Martin v. Perkins, 56 Miss. 204.

46 Enloe vy. Sherrill, 6 Ired. L. (N.
Car.) 212; Finch v. Finch, 14 Ga.
362; Schnee v. Schnee, 61 Kans. 643,
60 Pac. 738 (holding infants may in-
stitute proceedings to probate by next
friend).

47 Evansville Ice &c. Co. v. Winsor,
148 Ind. 682, 48 N. E. 592; Russell
v. Hartt, 87 N. Y. 19.

48 Vestry of St. John’s Parish v.
Bostwick, 8 App. Cas. (D. C.) 452;
Keniston v. Adams, 80 Maine 290, 14
Atl. 203.

49 Stebbins v. Lathrop, 4 Pick.
(Mass.) 33. See also Wells Fargo
Co. v. Walsh, 87 Wis. 67, 57 N. W.
969.
$ 491

WILLS 430

ing to the probate of wills and to the administration of decedents’
estates are probate courts. These courts are variously designated
as probate courts, surrogates’ courts, orphans’ courts, etc., and
in some states this jurisdiction is conferred on local courts hav-
ing common-law powers.°? The probate courts, while classed as
courts of record, are courts of limited jurisdiction, wholly of
statutory origin and possessing no powers except those conferred
by statute.°* The powers of such courts can not be restricted or:
enlarged by the terms of the will.?

Such courts are usually given exclusive original jurisdiction
in the probate of wills,°* whether of real or personal property.™*

Courts of equity have no jurisdiction in the probate of wills,
nor to establish wills which have been denied probate by courts
of law.” Ifacourt of equity has any such power, it is conferred
by statute.° Likewise a court of equity can not be invoked to
set aside the probate of a will on the ground of fraud, mistake
or forgery,*’ nor to cancel an alleged will on any grounds, nor to
enjoin its probate.** Equity will, however, take jurisdiction in a
case where fraud was practiced upon the court in procuring the

probate of a will.”

50 See Digest of Statutes, Ch. 28.

51 Elliott’s Estate v. Wilson, 27 Mo.
App. 218.

52 Presbyterian Church v. McEl-
hinney, 61 Mo. 540.

53 Johnes v. Jackson, 67 Conn. 81,
34 Atl. 709; Larson v. How, 71 Minn.
250, 73 N. W. 966; Wall v. Wall, 30
Miss. 91, 64 Am. Dec. 147; Stowe v.
Stowe, 140 Mo. 594, 41 S. W. 951;
Loosemore v. Smith, 12 Nebr. 343, 11
N. W. 493; Morgan v. Dodge, 44 N.
H. 255, 82 Am. Dec. 213; Bowen v.
Johnson,-5 R. I. 112, 73 Am. Dec.
49; Franks v. Chapman, 60 Tex. 46;
Hotchkiss v. Ladd’s Estate, 62 Vt.
209, 19 Atl. 638; In re Jackman’s
Will, 26 Wis. 104.

54 Goodman v. Winter, 64 Ala. 410,
38 Am. Rep. 13; Taylor v. Tibbatts,
13. B. Mon. (Ky.) 177;°Rumph v.
Hiott, 35 S. Car. 444, 15 S. E. 235,

55 Ormsby v. Webb, 134 U. S. 47,
10 Sup. Ct. 478, 33 L. ed. 805; Stead
y. Curtis, 205 Fed. 439, 123 C. C. A.
507; Erwin v. Hamner, 27 Ala. 296;
McDaniel v. Pattison, 98 Cal. 86, 27
Pac. 651, 32 Pac. 805; Robson v.
Jones, 3 Del. Ch. 51.

56 Clough v. Clough, 10 Colo. App.
433, 51 Pac. 513. But see Harris v.
Tisereau, 52 Ga. 153, 21 Am. Rep.
242.

57 Langdon v. Blackburn, 109 Cal.
19, 41 Pac. 814; Mitchell v. Hughes,
3 Colo. App. 43, 32 Pac. 185; Hans
v. Holler, 165 Mo. 47, 65 S. W. 308;
Loosemore v. Smith, 12 Nebr. 343, 11
N. W. 493.

58 Israel v. Wolf, 100 Ga. 339, 28
S. E. 109; Brown v. Webster, 87
Nebr. 788, 128 N. W. 635.

59 Gray v. Parks, 94 Ark. 39, 125
S. W. 1023,
431 PROBATE § 492

§ 492. Form and contents of application.—The statutes of
some states require a written petition for admitting a will to
probate ;° but in the absence of any such statutory requirement
such petition is unnecessary,” the production of the will ordinarily
being enough to initiate proceedings. The application may be
made orally where no form is prescribed.

The rules of the probate court, however, sometimes require a
written application. Although a written application may not al-
ways be required, it is the better practice to institute probate
proceedings in this way. It has been held that the court has
a discretion to require that the application be made in writing.®
Where the statute requires a petition and prescribes the necessary-
allegations, no other allegations need be made.*°

The petition is usually required to describe the will offered for
probate, and to set forth the fact of the testator’s death ;** also
his domicile at the time of his death,® these facts being essential
to the jurisdiction of probate tribunals. But the petition need

60 Malone v. Cornelius, 34 Oreg.
192, 55 Pac. 536. See also Digest of
Statutes, Ch. 28.

61 Deslonde v. Darrington, 29 Ala.
92; St. Leger’s Appeal, 34 Conn. 434,

91 Am. Dec. 735; In re Storey, 120°

Ill, 244, 11 N. E. 209; Seery v. Mur-
ray, 107 Iowa 384, 77 N. W. 1058.

62In re Howard’s Estate, 22 Cal.
395.

63 Miller v. Coulter, 156 Ind. 290, 59
N. E. 853; Small v. McCalley, 51
Ala. 527; In re Howard’s Estate, 22
Cal. 395; In re St. Leger’s Appeal,
34 Conn. 434, 91 Am. Dec. 735.

64 Small v. McCalley, 51 Ala. 527;
Wright v. Fleming, 19 Hun (N. Y.)
370.

65 Small v. McCalley, 51 Ala. 527.

66 White v. Holmes (Tex. Civ.
App.), 129 S. W. 874.

67 Matter of O’Connor, 65 Misc.
403, 121 N. Y. S. 903.

68 Moore v. Willamette Transp. &c.

Co., 7 Oreg. 359; Bradshaw v. Rob-
erts (Tex. Civ. App.), 52 S. W. 574,

69 McDonnell v. Farrow, 132 Alay
227, 31 So. 475; Moore v. Willamette
Transp. &c. Co., 7 Ore. 359.

70 Mutual Benefit Life Ins. Co. v.
Tisdale, 91 U. S. 238, 23 L. ed. 314;'
Duncan v. Stewart, 25 Ala. 408, 60
Am. Dec. 527; Stevenson v. Superior
Ct., 62 Cal. 60; Thomas v. People,
107 Ill. 517, 47 Am. Rep. 458; French
v. Frazier, 7 J. J. Marsh. (Ky.) 425;
Burns v. Van Loan, 29 La. Ann. 560;
Day v. Floyd, 130 Mass. 488; John-
son v. Beazley, 65 Mo. 250, 27 Am.
Rep. 276; Morgan v. Dodge, 44 N.
H. 255, 82 Am. Dec. 213; State
ex rel. Ross v. White, 29 N. Car.
116; Devlin v. Commonwealth, 101
Pa. St. 273, 47 Am. Rep. 710; With-
ers v. Patterson, 27 Tex. 491, 86 Am,
Dec. 643; Melia v. Simmons, 45 Wis.
334, 30 Am. Rep. 746.
§ 493 WILLS 432
not generally allege that the testator had capacity to make a will,”
or that the court has authority to act.”

It is the better practice to allege in the petition all the facts
necessary to give the court jurisdiction, the validity of the will,
the interest of the petitioner, and the names, description and
residence of those who would be entitled to the estate as heirs
or distributees,” and this is the substance of statutory require-
ments in many states.”

§ 493. Notice of proceedings for probate.-—Upon applica-
tion made for admitting a will to probate, notice of the pendency
thereof is usually required to be served upon persons interested.”
But where no notice of the original application is required by
statute, and none is given, the judgment admitting the will to
probate is valid if the statute makes ample provision for a con-
test by appeal or by some other mode.”

Personal notice is not required by the constitution,” nor is it
usually required by statute; notice by publication being the com-
mon form of notice provided by law.”

A failure to give notice as required by statute may be objected
to in the proceedings,” or the judgment may be reversed on
appeal, or vacated in some other form of direct attack.*°

71In re Hathway’s Appeal, 46
Mich. 326, 9 N. W. 435.

72 Hooks v. Barnett, 38 Ala. 607.

661, 36 Pac. 110; Bonnemort v. Gill,
167 Mass. 338, 45 N. E. 768; In re
Mousseau’s Will, 30 Minn. 202, 14

73 Boyett v. Kerr, 7 Ala. 9; Mor-
ford vy. Dieffenbacker, 54 Mich, 593,
20 N. W. 600; Whitfield v. Hurst, 9
Ired. L. (N. Car.) 170.

74 See Digest of Statutes, Ch. 28.

75 Curtis v. Underwood, 101 Cal.
‘661, 36 Pac. 110; Dugan v. Northcutt,
7 App. (D. C.) 351; In re Larson’s
Estate, 71 Minn. 250, 73 N. W. 966;
‘Heminway v. Reynolds, 98 Wis. 501,
74 N. W. 350.

76 Crippen v. Dexter, 13 Gray
(Mass.) 330; Knight v. Hollings, 73
N. H. 495, 63 Atl. 38; Frazer v.
Wayne Circuit Judge, 39 Mich. 198.

77 Curtis v. Underwood, 101 Cal.

N. W. 887; In re Middleton’s Will,
72 Towa 424, 34 N. W. 193.

78In re Davis’ Estate, 136 Cal. 590,
69 Pac. 412; Flood v. Kerwin, 113
Wis. 673, 89 N. W. 845; Goodrich v.
Ferris, 145 Fed. 844; Burbeck v. Lit-
tle, 50 Vt. 713.

79 San Francisco &c. Asylum v. Su-
perior Ct., 116 Cal. 443, 48 Pac. 379;
In re Friedell; 20 App. Div. 382, 46
N. Y. S. 787; Leach v. Burr, 188 U.
S. 510, 23 Sup. Ct. 393, 47 L. ed. 567.

80 Duperier v. Bevard, 107 La. 91,
31 So. 653; Floto v. Floto, 213 IIL
438, 72 N. E. 1092. ,
433 PROBATE § 494

§ 494. Probate in common form.—By the English prac-
tice, and by the practice of some of the states, a will may be
probated either in common form, or solemn form. A probate in
common form is where the will is produced before the proper
court or officer, and after proof by the attesting witnesses of the
validity of its execution, is admitted to probate without notice
to any person interested therein.** This form of probate is an
ex parte proceeding, and does not contemplate a contest.*? No
opportunity is given persons opposing the admission of the will
to probate to introduce evidence in support of their contention,
but they may cross-examine the witnesses offered by the pro-
ponent.**

This method of probate is very simple, and consists of produc-
ing the will itself to the court, or to the clerk in vacation, if the
statute permits, accompanied by an affidavit of the testator’s
death. But the act of the clerk in admitting the will to probate
must be confirmed by the court at the next ensuing term.**

Probate after the common form ascertains nothing but the
prima facie validity of the will, and that the instrument offered
is what it purports to be.** The proceeding is confined to the
question as to whether the will has been legally executed, and is
the will of the testator.** This form of probate is deemed suffi-
cient to justify the establishment of the will as a muniment of
title, the appointment of an executor and the administration of
the estate. A person desiring to contest a will admitted to pro-
bate in common form, or to establish a will rejected on such
a proceeding, must bring a separate suit for that purpose.

§ 495. Probate in solemn form.—A will is said to be pro-
bated in solemn form when all parties interested have been duly

81 Bent v. Thompson, 5 N. Mex. 601, 49 S. W. 503; Salmon v. Huff, 9

408, 23 Pac. 234, Tex. Civ. App. 164, 28 S. W. 1044.
82 Wright v. Young, 75 Kans. 287, 85 Ex parte Fuller, 2 Story (U. S.)
89 Pac. 694. 327, Fed. Cas. No. 5147; Burns v.

83In re St. Leger’s Appeal, 34 Travis, 117 Ind. 44, 18 N. E. 45.
Conn. 434, 91 Am. Dec. 735; Gray v. 86 Bent’s Appeal, 35 Conn. 523;
Gray, 60 N. H. 28. George v. George, 47 N. H. 27; In re

84 Rothwell v. Jamison, 147 Mo. MHegarty’s Appeal, 75 Pa. St. 503.

28—Tuomp. WILLs.
§ 496 + WILLS 434
notified to appear at the time of its probate and the will then
duly proved by the witnesses.*7 This form contemplates that
the probate of the will in the probate court may be opposed.®

The heirs or next of kin must be notified of the proceeding,”
and such notice may be by publication.

The executor of a will probated in common form may be com-
pelled to probate it in solemn form, if the application therefor
is made within a reasonable time.** This second proceeding is a
direct attack upon the order admitting the will to probate, and is
generally known as a contest.°?

§ 496. Repropounding a will once probated or rejected.—
A proceeding to re-probate a will once probated or rejected is a
collateral attack on the first proceeding,” and should be dis-
missed,** unless the first proceeding was void for want of juris-
diction.°° And when a will has once been fairly propounded
and fairly rejected on its merits, it can not be again propounded,

87 Roy v. Segrist, 19 Ala. 810;
Petty v. Ducker, 51 Ark. 281, 11 S.
W. 2; In re Middleton, 72 Iowa 424,
34 N. W. 193; Martin v. Perkins, 56
Miss. 204; Roberts v. Flanagan, 21
Nebr. 503, 32 N. W. 563; George v.
George, 47 N. H. 27; Armstrong v.
Baker, 9 Ired. (N. Car.) 109; Field
v. Apple River Log Driv. Co. 67
Wis. 569, 31 N. W. 17; Brett v. Brett,
3 Addams 210; Palmer v. Dent, 2
Robt. (Eccl.) 284.

88 Clough v. Clough, 10 Colo. App.
433, 51 Pac. 513; Fortune v. Buck, 23
Conn. 1; Olmstead v. Webb, 5 App.
(D. C.) 38; Nat. Safe Deposit &c.
Co. v. Sweeney, 3 App. (D. C.) 401;
Cummins v. Cummins, 1 Marv.
(Del.) 423, 31 Atl. 816, 2 Hardesty
125; Barksdale v. Hopkins, 23 Ga.
332.

89 Stead v. Curtis, 205 Fed. 439, 123
Cc. C. A. 507; Herring v. Ricketts,
101 Ala. 342, 13 So. 502; In re Ham-

ilton’s Estate, 120 Cal. 421, 52 Pac.
708; Lewis v. Luckett, 32 App. (D.
C.) 188; Pettit v. Black, 13 Nebr.
142, 12 N. W. 841; Rice v. Filton, 14
Wyo. 101, 82 Pac. 577.

90 Melone’s Estate, 141 Cal. 331, 74
Pac. 991; Whitney v. Hanington, 36
Colo. 407, 85 Pac. 84.

91Knox v. Paull, 95 Ala. 505, 11
So. 156; Clough v. Clough, 10 Colo.
App. 433, 51 Pac. 513; Brown v. An-
derson, 13 Ga. 171; Martin v. Per-
kins, 56 Miss. 204; Straub’s Case, 49
N. J. Eq. 264, 24 Atl. 569; Osborne
v. Leak, 89 N. Car. 433; O’Dell v.
Rogers, 44 Wis. 136.

92 Haynes v. Haynes, 33 Ohio 598,
31 Am. Rep. 579.

93In re Warfield’s Will, 22 Cal. 51,
83 Am. Dec. 49.

94In re Warfield’s Will, 22 Cal.
51, 83 Am. Dec. 49.

95 Gay v. Minot, 3 Cush. (Mass.)
352.
435 PROBATE § 497
so long as the order rejecting the probate stands unreversed.”
But if the original judgment admitting the will to probate was not
rendered upon the merits,°’ or was fraudulently obtained, or
if the second applicant had no notice or knowledge of the prior
proceeding and is without other remedy, the instrument may
be repropounded for probate. And it has been held that such
proceeding may be justified by the discovery of new evidence.*
The petition to re-probate a will should allege the grounds
upon which the applicant seeks to avoid the effect of the prior

rejection.”

§ 497. Hearing where application not formally contested.
—Statutory provisions regulating the practice in probate courts
where the application is not contested are exceedingly meagre.
Generally proof by one or more of the attesting witnesses, or
evidence of their handwriting, is required.* At least the will
should not be admitted to probate upon the consent of those
opposed to it and without any proof.*

Where the application is not contested the proceedings are of
a summary character and informal, but parties opposed to the
will may cross-examine the proponent’s witnesses, though they
will not generally be permitted to introduce evidence themselves
in support of their contention.? The probate court has inherent
power to continue the hearing of the application.®

96In re Wells’ Will, 5 Litt. (Ky.)
273; In re Mousseau’s Will, 30 Minn.
202, 14 N. W. 887.

97 Whitfield v. Hurst, 9 Ired. (31
N. Car.) 170; Lilly v. Tobbein, 103
Mo. 477, 15 S. W. 618, 23 Am. St.
887. 7

98 Wills v. Spraggins, 3 Grat.
(Va.) 555; Vestry of St. John’s Par-
ish v. Bostwick, 8 App. Cas. (D. C.)
452.

99 Martin v. Perkins, 56 Miss: 204.

1 Redmond v. Collins, 4 Dev. L. (15
N. Car.) 430, 27 Am. Dec. 208; Lo-
pez’s Succession, 33 La. Ann. 368.

2Harvey v. Smith, 1 Dev. & B. L.
(18 N. Car.) 186.

3 Wills v. Spraggins, 3 Grat. (Va.)
543; Downey v. Downey, 16 Hun (N.
Y.) 481.

4In re Lissauer’s Will, 5 N. Y. S.
260, 22 N. Y. St. 877; Hylton v. Hyl-
ton, 1 Grat. (Va.) 161; Mayo v.
Jones, 78 N. Car. 402.

5 Clough v. Clough, 10 Colo. App.
433, 51 Pac. 513; Moody v. Found,
208 Ill. 78, 69 N. E. 831; Malone v.
Cornelius, 34 Ore. 192, 55 Pac. 536;
In re St. Leger’s Appeal, 34 Conn.
434, 91 Am. Dec. 735; Gray v. Gray, 60
N. H. 28; Mayo v. Jones, 78 N. Car.
402; M. E. Church Missionary Soc.
v. Ely, 56 Ohio St. 405, 47 N. E. 537.

€Curtis vy. Underwood, 101 Cal.
436

§ 498 WILLS

§ 498. Evidence and burden of proof.—Before a will can
be probated proof must be made of its proper execution, the
testator’s signature, the attestation of the witnesses, the publica-
tion of the will and such like matters, and the burden of proving
such facts rests upon the propounder.’ The proof in support of
probate must be sufficient to convince the court that the paper
produced is the lawful will of the testator.™

A prima facie case is made when it is shown that all the re-
quirements of law have been observed in the execution of the
will,* and unless such prima facie case is made the court should
refuse probate even where probate is not contested.°

The oral testimony of the attesting witnesses, being the best
testimony, should always be obtained where possible.*® It is not
generally necessary to produce all the attesting witnesses, though
in reach of process,** and even in the absence of any attesting
witnesses due execution may be shown for the purpose of pro-
bate.77 Where the attendance of attesting witnesses can not be
procured on account of absence or death, their signatures may be
proved by any one familiar with their handwriting.** But where
such witnesses are living and can not be procured at the probate
of the will, their depositions may be taken and used as evidence.
In such case, however, the deponent must have the will before

661, 36 Pac. 110; Kischman v. Scott,
166 Mo. 214, 65 S. W. 1031; In re
Rice’s Will, 81 App. Div. 223, 81 N.
Y. S. 68.

7Woodroof v. Hundley, 133 Ala.
395, 32 So. 570; Peale v. Ware, 131
Ga. 826, 63 S. E. 581; Wilenou v.
Handlon, 207 Ill. 104, 69 N. E. 892;
Barnes v. Barnes, 66 Maine 286;
Cowan v. Shaver, 197 Mo. 203, 95 S.
W. 200.

7a Hall v. Hall, 47 Ala. 290; Janes
v. Williams, 31 Ark. 175; Tyler’s
Estate, 121 Cal. 405, 53 Pac. 928.

8 Woodroof v. Hundley, 133 Ala.
395, 32 So. 570; Wright v. Young, 75
Kans. 287, 89 Pac. 694.

9JIn re Hayden’s Estate, 149 Cal.

680, 87 Pac. 275; Renn v. Samos, 33
Tex. 760.

10 Chase v. Lincoln, 3 Mass. 236;
Berst v. Moxom, 157 Mo. App. 342,
138 S. W. 74. .

11 Field’s Appeal, 36 Conn. 277.

12 Hall’s Heirs v. Hall’s Exrs., 38
Ala. 131.

18 Woodruff v. Hundley, 127 Ala.
640, 29 So. 98, 85 Am. St. 145;
Thompson v. King, 95 Ark. 549, 129
S. W. 798; In re Tyler’s Estate, 121
Cal. 405, 53 Pac. 928; Scott v. Her-
rell, 31 App. (D. C.) 45; Lorts v.
Wash, 175 Mo. 487, 75 S. W. 95;
Pettit v. Black, 13 Nebr. 142, 12 N.
W. 841.

14 Moore v. Heineke, 119 Ala. 627,
437 PROBATE § 499
him for the purpose of identification.” Where the testimony of
the attesting witnesses is available it is not conclusive as to the
fact of execution.** And where the testimony of the subscribing
witnesses is insufficient to prove the formal execution of the will,
other evidence is admissible to supply the deficiency,” or if their
testimony is against the due execution of the will, it may be
contradicted and the will supported by the testimony of other

witnesses or by circumstances.**

§ 499. Time of competency of witnesses.—In the absence
of a statute to the contrary, the competency of an attesting wit-
ness to a will must exist at the time of attestation; and it is at this
time that the competency of witnesses is to be determined.”® It
may be given as an illustration of a reason for the rule, that so
far as the capacity of the testator to make a will is concerned,
it is the opinion of the attesting witnesses at the time the will
was executed which is material, not that opinion as subsequently
modified.”

Statutes usually provide that if the witnesses are competent at
the time of attesting, their subsequent incompetency does not
prevent the will from being probated.** Conversely, if the wit-

24 So. 374; Butcher v. Butcher, 2f
Colo. App. 416, 122 Pac. 397; Kelly v.
Moore, 22 App. (D. C.) 9.

15 Schnee v. Schnee, 61 Kans. 643,
60 Pac. 738; Cawthorn v. Haynes, 24
Mo, 236.

16 Estate of McDermott, 148 Cal.
43, 82 Pac. 842; Ashworth v. Mc-
Namee, 18 Colo. App. 85, 70 Pac. 156.

17In re Kent’s Estate, 161 Cal. 142,
118 Pac. 523; Gillis v. Gillis, 96 Ga.
1, 23 S. E. 107, 30 L. R. A. 143, 51
Am. St. 121; Sutton v. Sutton, 5 Har.
(Del.) 459; Underwood v. Thurman,
111 Ga. 325, 36 S. E. 788.

18 Barnewall v. Murrell, 108 Ala.
366, 18 So. 831; In re Shapter’s
Estate, 35 Colo. 578, 85 Pac. 688, 6
L. R. A. (N. S.) 575, 117 Am. St.
216; Rash v. Purnell, 2 Har. (Del.)
448.

19 Kumpe v. Coons, 63 Ala. 448;
Gillis v. Gillis, 96 Ga. 1, 23 S. E. 107,
30 L. R. A. 143, 51 Am. St. 121;
Johnson v. Johnson, 187 Ill. 86, 58 N.
E, 237; Hiatt v. McColley, 171 Ind.
91, 85 N. E. 772; Patten v. Tallman,
27 Maine 17; Higgins v. Carlton, 28
Md. 115, 92 Am. Dec. 666; Sears v. -
Dillingham, 12 Mass. 358; Carlton v.
Carlton, 40 N. H. 14; Vester v. Col-.
lins, 101 N. Car. 114, 7 S. E. 687;
Maxwell v. Hill, 89 Tenn. 584, 15 S.
W. 253; In re Lyon’s Will, 96 Wis.
339, 71 N. W. 362, 65 Am. St. 52.

20In re Ingalls’ Will, 148 Ill. 287,
35 N. E, 743.

21 Belledin v. Gooley, 157 Ind. 49,
60 N. E. 706; In re Trinitarian Cong.
Church & Soc., 91 Maine 416, 40 Atl.
325; Pease v. Allis, 110 Mass. 157, 14
Am. Rep. 591; In re Sullivan, 114
§ 500 WILLS 438
nesses must be competent at the time of attestation, but were in
fact incompetent at that time, it is clear that, in the absence of
an enabling statute, any subsequent competency would be of no
avail, as the will, not having been sufficiently executed, could not

be proved.”

§ 500. Probate where will valid in part only.—An instru-
ment testamentary in character, and executed in the form re-
quired for a will, can not be denied probate upon the ground that
some of its provisions are invalid, or contrary to the provisions
of law.” The probate of the will merely determines the validity
of its execution. The sufficiency or invalidity of its provisions
will be determined when effect is sought to be given them.”

However, it becomes necessary sometimes to admit the will to
probate in part, and reject it in part. Thus if the court is satis-
fied that a particular clause of the will has been inserted by fraud,
in the lifetime of the testator, without his knowledge,”® or by
forgery, after his death,” or that he has been induced by fraud
or undue influence to make it a part of the will,” the instrument
will be probated, with the reservation of that particular clause.”

Also where a page is removed from an executed will and an-
other substituted without re-execution, the will as originally ex-
ecuted will be admitted to probate, and no effect will be given to

the invalid substituted page.”

Mich. 189, 72 N. W. 135; In re Holt,
56 Minn. 33, 57 N. W. 219, 22 L. R.
A. 481, 45 Am. St. 434; In re Klein’s
Estate, 35 Mont. 185, 88 Pac. 798;
Morrill v. Morrill, 53 Vt. 74, 38 Am.
Rep. 659.

22 Gump v. Gowans, 226 III. 635, 80
N. E. 1086, 117 Am. St. 275.

23 Woodruff v. Hundley, 127 Ala.
640, 29 So. 98, 85 Am. St. 145; Pool
v. Pool, 35 Ala. 12; In re Shillaber’s
Estate, 74 Cal. 144, 15 Pac. 453, 5 Am.
St. 433; Bent’s Appeal, 35 Conn. 523;
Kultz v. Jaeger, 29 App. (D. C.) 300;
Harris v. Pue, 39 Md. 535; Sumner
v. Crane, 155 Mass. 483, 29 N. E.
1151, 15 L. R. A. 447; Mears v.

Likewise, if a clause is inad-

Mears, 15 Ohio St. 90; Prater v.
Whittle, 16 S. Car. 40.

24Tn re Pforr, 144 Cal. 121, 77 Pac.
825.

25 Barton v. Robins, 3 Phillim. 455,
note (b).

26 Plume v. Beale, 1 P. Wms. 388.

27 Eastis v. Montgomery, 93 Ala.
293, 9 So. 311; Florey v. Florey, 24
Ala. 241; In re Harrison’s Appeal,
48 Conn. 202; Morris v. Stokes, 21
Ga. 552; Burger v. Hill, 1 Bradf.
Sur. (N. Y.) 360.

28 Allen v. McPherson, 1 H. L. Cas.
191.

29 Varnon v. Varnon, 67 Mo. App.
534,
439 PROBATE § 501
vertently included in a will, without any direction on the part of
the testator to make it a part of his will, probate will be granted

of the instrument with such clause omitted.®®

§ 501. Probate of conditional and alternative wills.—A
testamentary paper, by its terms to take effect only on the hap-
pening of a certain contingency, can not be admitted to probate
as a will if the contingency does not happen.** But in some
cases conditional or alternative wills have been admitted to pro-
bate whether the event has happened or not; the court preferring
to leave the doubt to be decided by a proceeding to construe the
will? And where a testator has made two wills, one to have
effect upon the happening of one event, and the other upon the
happening of another event, if the event has happened by the
time of probate, the will which is favored by the event will be ad-
mitted, and the other will be rejected.**

§ 502. Probate of joint, double, mutual, and simultaneous
wills.—A will jointly executed by two persons, disposing of
all the property to the survivor, is held to be in the nature of two
separate and distinct wills which can be proved in favor of the
survivor on the death of one of them without revoking it.** It
is probated as the separate will of the one who first dies.** Where
the will provides that the survivor shall succeed to the estate of
the one first to die, it is ordinarily only necessary to probate the
will as the will of the one first dying.*®

If all the makers of a joint, double, mutual or simultaneous
will die before the instrument is probated, it may be probated as
the sole will of each at the same time.*” But the better practice

30 Hill v. Burger, 10 How. Pr. (N.
Y.) 264.

31 Morrow’s Appeal, 116 Pa. St.
440, 9 Atl. 660, 2 Am. St. 616.

82 Ex parte Lindsay, 2 Bradf. Sur.
(N. Y.) 204.

33 Hamilton’s Estate, 74 Pa. St. 69;
Bradish v. McClellan, 100 Pa. St. 607.

34 Schumaker v. Schmidt, 44 Ala.
454, 4 Am. Rep. 135; Lewis v. Sco-
field, 26 Conn. 452, 68 Am. Dec. 404;

In re Davis, 120 N. Car. 9, 26 S, E.
636, 38 L. R. A. 289, 58 Am. St. 771.

35 Jn re Hansen’s Estate, 87 Nebr.
567, 127 N. W. 879; Wyche v. Clapp,
43 Tex. 543.

36 Baker v. Syfritt, 147 Iowa 49,
125 N. W. 998.

37 Betts v. Harper, 39 Ohio St. 639,
48 Am. Rep. 477; Black v. Richards,
95 Ind. 184.
§ 503 : WILLS 440
is to probate it as the will of the one who dies first, without
waiting until the death of the other,** and, unless the will has in
some manner been revoked, it may again be probated on the
death of such other as to his property mentioned therein.”

A will in which two persons have united, but which is in effect
the separate will of each, is properly admitted to probate on the
death of either as the separate will of that person, but if not
proved until both are dead it can be probated as the will of both.”

§503. Probate of nuncupative wills—The statutes usu-
ally require a statement of the character of the will in the petition
for probate of such will, and in the citation or notice, and fix
the minimum and character of proof necessary to establish the
will.

In consequence of the disfavor with which nuncupative wills
are looked upon by the courts,** it is necessary to prove testamen-
tary capacity and animus testandi by the clearest evidence.**
Strict proof must be made of all the facts which the law makes
essential to the validity of such wills.**

The statutes generally require the words spoken by the testator
to be proved in court within six months from the time they were
spoken, and after that time probate will not be allowed unless
the testator’s words were reduced to writing within a specified
time after they were spoken.** In some jurisdictions three wit-
nesses are required to prove the testator’s words, and in others
only two are required; but it is generally required that all the

t

38 Evans v. Smith, 28 Ga. 98, 73
Am. Dec. 751; In re Davis’ Will, 120
N. Car. 9, 26 S. E. 636, 38 L. R. A.
289, 58 Am. St. 771; Wyche v. Clapp,
43 Tex. 543.

39In re Davis’ Will, 120 N. Car. 9,
26 S. E. 636, 38 L. R. A. 289, 58 Am,
St. 771.

40In re Raupp, 10 Misc. 300, 31 N.
Y. S. 680, 1 Gibbons 151, 64 N. Y. St.
Rep. 305; Betts v. Harper, 39 Ohio
St. 639, 48 Am. Rep. 477.

41 Kirby v. Kirby, 40 Ala. 492;
George v. Greer, 53 Miss, 495; Perez

v. Perez, 59 Tex. 322; O’Callaghan
v. O’Brien, 116 Fed. 934.

42 Woods v. Ridley, 27 Miss. 119.

43 Johnston v. Glasscock, 2 Ala.
218; St. James Church v. Walker, 1
Del. Ch. 284; Webb v. Webb, 7 T. B.
Mon. (Ky.) 626; Succession of Dor-
ries, 37 La. Ann. 833; Broach v.
Sing, 57 Miss. 115.

44 Godfrey v. Smith, 73 Nebr. 756,
103 N. W. 450; Rankin v. Rankin, 31
N. Car. 156; Perez v. Perez, 59 Tex.
322; Gould v. Safford, 39 Vt. 498

45 See Digest of Statutes, Ch. 28.
441 PROBATE § 504

witnesses must have been present together at the time the words
were spoken, and each must testify to all the testamentary words
spoken by the testator.*®

The probate of a nuncupative will is conclusive,*” and can not
in some jurisdictions, be set aside or contested in a court of equity,
like a written will, the only remedy of the party aggrieved being
by appeal ;** but a contest being, in some jurisdictions, in the
nature of an appeal from the judgment of the probate court,
every fact which is required to be proved to establish the validity
of the will, may be disproved on the contest to show its invalid-
ie”

§ 504. Procedure to establish and probate lost or de-
stroyed will—Where a will has been lost or destroyed with-
out the knowledge or consent of the testator, it does not cease
to be his will, and its contents may be established by competent
proof.”°

In the absence of a statute conferring jurisdiction on the pro-
bate court to establish a will that has been lost or destroyed,
resort must be had to a court of equity to establish the instru-
ment by proof of its due execution, its loss or destruction, and
its contents.°** After the will is thus established in equity it must
be probated or set up in a court of law as a muniment of title.
But where the statute confers jurisdiction on probate courts to
establish lost or destroyed wills, the necessity of resorting to
equity is obviated.°*

The loss or destruction of the will must occur after the death
of the testator, unless it was fraudulently destroyed in his life-
times-

46 Tally v. Butterworth, 10 Yerg. Schnee, 61 Kans. 643, 60 Pac. 738;

(Tenn.) 501.

47 Bradley v. Andress, 27 Ala. 596;
Brown v. Harris, 9 Baxt. (Tenn.)
386. .
48 Page v. Page, 2 Rob. (Va.) 424.

49 Bolles v. Harris, 34 Ohio St. 38.

50 Gaines v. Hennen, 24 How. (U.
S.) 553, 16 L. ed. 770; McBeth v.
McBeth, 11 Ala, 596; Schnee v.

Schaff v. Peters, 111 Mo. App. 447,
90 S. W. 1037.

51 Nunn v. Lynch, 73 Ark. 20, 83
S. W. 316; Harris v. Tisereau, 52 Ga.
153, 21 Am. Rep. 242.

51a Jackson v. Jackson, 4 Mo. 210.

52In re Kennedy’s Will, 167 N. Y.
163, 60 N. E. 442; Harris v. Harris,
36 Barb. (N. Y.) 88, 574.
§ 504 WILLS 442

The petition or complaint to establish a lost or destroyed will
should show that the decedent executed a will, and that it was
afterward destroyed without his consent in his lifetime, or other-
wise fraudulently disposed of, or, if lost, that such will was in
existence at the time of the death of the testator.* But such
complaint or petition need not state the time nor place of destruc-
tion, nor by whom, when or how it was destroyed.** Nor is it
necessary to set out the exact words of the will alleged to be lost
or destroyed. In the absence of a copy this could hardly be done.
All that can reasonably be required of the pleader under such
circumstances is to show in general terms the disposition which
the testator made of his property by the instrument, that it pur-
ported to be his will, was duly executed and attested by the
requisite number of witnesses.°° Nor will such complaint or
petition be bad for failing to allege the county and state where
the testator died.*®

The beneficiaries under a lost or destroyed will and all those
who would take if such will were not probated are necessary
parties to a suit to establish it.°’ Such parties must be served
either personally or by publication, notice to the administrator
not being sufficient.**

In the absence of a statute to the contrary the action is not
triable by a jury, but must be tried by the court as in other
equitable actions.*° But where there is a statute which provides
a proceeding in the nature of a contest as a direct attack upon an
order admitting a lost or destroyed will to probate, a jury may be
called to determine what the provisions of the will, as legally
executed by the testator, were.®

53 Kellogg v. Ridgely, 161 Ind. 110,
67 N. E. 929.

54Gfroerer v. Gfroerer, 173 Ind.
424, 90 N. E. 757.

55 Anderson v. Irwin, 101 Ill. 411;
Jones v. Caster, 139 Ind. 382, 38 N.
E. 812, 47 Am. St. 274; Allison v.
Allison, 7 Dana (Ky.) 90; Early v.
Early, 5 Redf. Sur. (N. Y.) 376.

56 Jones v. Casler, 139 Ind. 382, 38
N. E. 812, 47 Am. St. 274.

57 Taylor v. Bennett, 1 Ohio C. C.
95, 1 Ohio C. D. 57; In re Valentine’s
Will, 93 Wis. 45, 67 N. W. 12.

58 Baugarth v. Miller, 26 Ohio St.
541.

59 Wright v. Fultz, 138 Ind. 594, 38
N. E. 175.

60 Behrens v. Behrens, 47 Ohio St.
323, 25 N. E. 209, 21 Am. St. 820;
Haynes v. Haynes, 33 Ohio 598, 31
Am. Rep. 579,
443 PROBATE § 505

§ 505. Degree of proof required to establish a lost or de-
stroyed will—There is no difference between the rules of
evidence applicable to the case of a lost or destroyed will and
those which govern the reproduction of any other lost or de-
stroyed instrument. It is incumbent on the party seeking to
establish the will, not only to prove its due execution, but also
to rebut the presumption that the testator destroyed it if it can
not be found at his death.

In order to authorize the court to probate a copy of the lost
or destroyed instrument it is incumbent upon the proponent to
show what became of the original will, in whose custody it was
placed, account for its non-production, and produce some com-
petent proof of its contents.”

Proof of the contents of a lost or destroyed will is quite a
different matter from proof of its due execution and attesta-
tion. Ordinarily the latter fact is sufficiently proved by one
witness,** unless the statute requires more.” Such fact may
also be proved by evidence of the testator’s declarations; but
such declarations alone are not sufficient proof of the contents of
the will.°* It has been held, however, that the declarations of a
testator are admissible to show the making of a will, its con-
tinued existence, its contents, and to rebut or confirm the pre-
sumption of its revocation.” The contents of the instrument

61 Tynan v. Paschal, 27 Tex. 286,
84 Am. Dec. 619.

62 Caeman v. Van Harke, 33 Kans.
333, 6 Pac. 620; In re Francis’ Estate,
94 Nebr. 742, 144 N. W. 789, 50 L.
R. A. (N. S.) 861.

63 In re Guinasso’s Estate, 13 Cal.
App. 518, 110 Pac. 335; Nichols v.
Kingdom Iron Ore Co., 56 N. Y. 618;
Propst v. Mathis, 115 N. Car. 526, 20
S. E. 710; Mutual Life Ins. Co. v.
Tillman, 84 Tex. 31, 19 S. W. 294.

64 Skeggs v. Horton, 82 Ala. 352, 2
So. 110; In re Johnson’s Will, 40
Conn. 587; Varnon v. Varnon, 67
Mo. App. 534; Tynan v. Paschal, 27
Tex. 286, 84 Am. Dec. 619.

65In re Johnson’s Estate, 134 Cal.
662, 66 Pac. 847; Scott v. Maddox,
113 Ga. 795, 39 S. E. 500, 84 Am. St.
263.

66 Williams v. Miles, 68 Nebr. 463,
94 N. W. 705, 96 N. W. 151, 62 L. R.
A. 383, 110 Am. St. 431, 4 Ann. Cas.
306. :

67 Patterson v. Hickey, 32 Ga. 156;
Mercer v. Mackin, 14 Bush (Ky.)
434; Collagan v. Burns, 57 Maine
449; Pickens v. Davis, 134 Mass. 252,
45 Am. Rep. 322; Lawyer v. Smith,
8 Mich. 411, 77 Am. Dec. 460; In re
Marsh, 45 Hun (N. Y.) 107, 9 N. Y.
St. 441; Foster’s Appeal, 87 Pa. St.
67, 30 Am. Rep. 340.
444

§ 506 WILLS

are provable by the testimony of the subscribing witnesses, or
other persons who have read the will.

§ 506. Probate of foreign wills —A court may grant orig-
inal probate of the will of a non-resident who dies leaving either
real or personal property within its territorial jurisdiction.” A
will made in a foreign jurisdiction, and probated there, disposing
of property elsewhere, must be probated in the state where the
property is situated also, or courts can not enforce the provisions
of such will.”° This is true except in those states in which the
statutes confer certain powers upon foreign executors, which
powers may be exercised by virtue of such statutory regula-
tions.”*

The title to personalty is made conclusive everywhere by the
probate of the will in the jurisdiction of the testator’s domicil,
but it is of no force in establishing the sufficiency or validity of
a devise of real estate in another state, unless by virtue of a

statute of the state in which the real estate is situated.”
It is provided by statute in many states that the will of a non-

68 Dawson v. Smith’s Will, 3 Houst.
(Del.) 335; Fitzgerald v. Wynne, 1
App. (D. C.) 107; Mosely v. Carr, 7
Ga. 333.

69 Jaques v. Horton, 76 Ala. 238;
In re Edelman’s Estate, 148 Cal. 233,
82 Pac. 962, 113 Am. St. 231; Estate
of Washburn, 45 Minn. 242, 47 N.
W. 790, 11 L. R. A. 41; In re Gordon,
50 N. J. Eq. 397, 26 Atl. 268; In re
Barandon’s Estate, 41 Misc. 380, 84
N. Y. S. 937; Shields v. Union Cent.
Life Ins. Co., 119 N. Car. 380, 25 S.
E. 951; In re Clayson’s Estate, 26
Wash, 253, 66 Pac. 410.

70Ward v. Oates, 43 Ala. 515;
Thiebant v. Sebastian, 10 Ind. 454;
Dixon v. D’Armond, 23 La. Ann.
200; Campbell v. Sheldon, 13 Pick.
(Mass.) 8; Pope v. Cutler, 34 Mich.
150; Townsend v. Downer, 32 Vt.
183; Ives v. Allyn, 12 Vt. 589,

71 Mansfield v. Turpin, 32 Ga. 260;

Karrick v. Pratt, 4 Greene (Iowa)
144,

72 Dickey vy. Vann, 81 Ala. 425, 8
So. 195; Apperson v. Bolton, 29 Ark.
418; Irwin’s Appeal, 33 Conn. 128;
Pennel v. Weyant, 2 Harr. (Del.)
501; Evansville Ice &c. Co. v. Win-
sor, 148 Ind. 682, 48 N. E. 592; Otto
v. Doty, 61 Iowa 23, 15 N. W. 578;
Newcomb v. Newcomb, 108 Ky. 582,
57 S. W. 2, 22 Ky. L. 286, 51 L. R. A.
419; Budd v. Brooke, 3 Gill (Md.)
198, 43 Am. Dec. 321; Hutchins v.
State Bank, 12 Met. (Mass.) 421;
Pott v. Pennington, 16 Minn. 509
(Gil. 460) ; Wells v. Wells, 35 Miss.
638; Gaven v. Allen, 100 Mo. 293, 13
S. W. 501; Barstow v. Sprague, 40
N. H. 27; Nelson v. Potter, 50 N. J.
L. 324, 15 Atl. 375; Moultrie v. Hunt,
23 N. Y. 394; Carpenter v. Denoon,
29 Ohio St. 379; Abrams v. Moseley,
7S. Car. 150; Martin v. Stovall, 103
445 PROBATE § 507
resident, admitted to probate according to the law of the testa-
tor’s domicile at the time of his death, may be admitted to pro-
bate upon the production of a duly authenticated copy thereof
together with the probate, without other proof, or notice. In
some states, however, notice is required to be given to interested
parties of the production of such authenticated copies.* Such
statutes were not intended to deny original probate of foreign
wills in states where property disposed of by the will is situated.”
The probate of a foreign will is generally allowed as a matter of
course and without inquiring into the validity of the will or
the sufficiency of the proofs upon which the court granting the
original probate acted, provided such original probate was
granted by a court of competent jurisdiction and is properly
authenticated.”

§ 507. Uniform foreign probate law.—The need of a uni-
form foreign probate law has long been recognized by the legal
profession. Through the efforts of a committee of the Amer-
ican Bar Association such a law has been enacted in the states
of Colorado, Kansas, Louisiana, Maryland, Massachusetts, Mich-
igan, Nevada, Rhode Island, Washington, Wisconsin, Alaska,
and perhaps a few others. In order to awaken an interest in the

Tenn. 1, 52 S. W. 296, 48 L. R. A.
130; Slayton v. Singleton, 72 Tex.
209, 9 S. W. 876; Tarbell v. Walton,
71 Vt. 406, 45 Atl. 748; Thrasher v.
Ballard, 33 W. Va. 285, 10 S. E. 411,
25 Am. St. 894; Robertson v. Pick-
rell, 109 U. S. 608, 27 L. ed. 1049, 3
Sup. Ct. 407.

73 See post, ch. 28,

74 California: Fairall’s Code Civ.
Proced. (1916), § 1324; Connecti-
cut: Gen. St. (1902), § 305; Maine:
Rev. St. (1903), p. 538, § 13; Massa-
chusetts: Pub. St. (1902), p. 1279,
§ 10; Minnesota: Gen. Stats. (1913),
§§ 7250-7286; Montana: Revis. Code
(1907), § 7405; Nebraska: Cobbey’s
Ann. St. (1911), §§ 5010, 5011; Ne-
vada: Rev. St. (1912), §§ 5878, 5879;

New Hampshire: Pub. St. (1901), Ch.
187, § 13; New Jersey: Comp. St.
(1910), pp. 3820, 3821, §§ 23,24; Ohio:
Ann, Code (1912), §§ 10573; Okla-
homa: Rev. Stats. (1910), §§ 6217-
6219; Rhode Island: Gen. L. (1909),
pp. 1115, 1116, §§ 10-13; South Da-
kota: Comp. Laws (1913), §§ 52-54;
Tennessee: Code (1896), § 3916;
Vermont: Pub. St. (1906), §§ 27505
2752.

7 Parnell v. Thompson, 81 Kans.
119, 105 Pac. 502, 33 L. R. A. (N.
S.) 658n.

76 Brock v. Frank, 51 Ala. 85; Ap-
person v. Bolton, 29 Ark. 418; New-
man v. Willetts, 52 Ill, 98; Russell v.
Hart, 87 N.- Y. 19; Markwell v.
Thorn, 28 Wis. 548.
§ 507 WILLS 446

desirability of such a law, and to stimulate, if possible, the mem-
bers of the profession in jurisdictions which have not adopted
the law, to efforts to secure its adoption by their law-making
bodies, it is deemed advisable to include herewith a copy of such
law as drafted by the above mentioned committee and in effect
adopted by the states named. The act is as follows:

AN ACT
Providing for the Probate in this State of Probated Foreign
Wills. and to Make Uniform in that Regard the Laws of the
States Enacting the Same.
Be it enacted, etc.

Section 1. A will duly proved, allowed and admitted to pro-
bate outside of this state, may be allowed and recorded in the
proper court of any county in this state in which the testator
shall have left any estate.

Sec. 2. When a copy of the will and the probate thereof, duly
authenticated, shall be presented by the executor or by any other
person interested in the will, with a petition for probate, the same
must be filed and a time must be appointed for a hearing thereon
and such notice must be given as required by law on a petition
for the original probate of a domestic will.

Sec. 3. If upon the hearing, it appears to the satisfaction of
the court that the will has been duly proved, allowed and admitted
to probate outside of this state, and that it was executed according
to the law-of the place in which the same was made, or in which
the testator was at the time domiciled, or in conformity with the
laws of this state, it must be admitted to probate, which probate
shall have the same force and effect as the original probate of a
domestic will.

Sec. 4. When a duly authenticated copy of a will from any
state or country where probate is not required by the laws of such
state or country, with a duly authenticated certificate of the legal
custodian of such original will that the same is a true copy, and
that such will has become operative by the laws of such state or
country, and when a copy of a notarial will in possession of a
notary in a foreign state or country entitled to the custody
447 PROBATE § 508

thereof (the laws of which state or country require that such will
remain in the custody of such notary), duly authenticated by such
notary, is presented by the executor or other persons interested
to the proper court in this state, such court shall appoint a time
and place of hearing and notice thereof shall be given as in case
of an original will presented for probate.

If it appears to the court that the instrument ought to be
allowed in this state, as the last will and testament of the deceased,
the copy shall be filed and recorded, and the will shall have the
same effect as if originally proved and allowed in the said court.

Sec. 5. All laws and parts of laws in conflict or inconsistent
herewith be and the same are hereby repealed.

Sec. 6. This act may be’cited as the Uniform Foreign Probate
Act, and shall be so interpreted and construed as to effectuate
its general purpose to make uniform the law of the states which
enact it.

§ 508. The effect of probate—A decree of probate is gen-
erally regarded as in the nature of a judgment in rem,” and in
the absence of statutory provisions, is conclusive against all the
world, as to the validity of the will,”* and affirms the title of the
beneficiary under the will from the time of the testator’s death,
relating back so as to make valid whatever has been previously
done, which, under the will, after probate, the beneficiary could
lawfully have done.”

An ex parte probate ascertains nothing but the prima facie
validity of the will and that the instrument is seemingly what it
purports to be.*° Such probate is conclusive as to the fact that
the will was executed, and the proceeding can not be attacked

77 Hall v. Hall, 47 Ala. 290; State In re Williams, 1 Lea (Tenn.) 529;
v. McGlynn, 20 Cal. 233, 81 Am. Dec. Orr v. O’Brien, 55 Tex. 149.

118; Crippen v. Dexter, 13 Gray 79 Dublin v. Chadbourn, 16 Mass.
(Mass.) 330. 433; Sutphen v. Ellis, 35 Mich. 446;
78 Brock v. Frank, 51 Ala. 85; Allaire y. Allaire, 37 N. J. L. 312.
Janes v. Williams, 31 Ark. 175; 80 Burns v. Travis, 117 Ind. 44, 18

Tucker v. Whitehead, 58 Miss. 762; N. E. 45.
§ 509 WILLS 448
collaterally; but such probate is conclusive only as to the fact
of the valid execution of the will; it adjudicates nothing as to the
meaning or operation of the will.**

Although the probate of a will establishes the sufficiency
thereof, and confirms the claims of those holding under it so far
as to make it evidence of title, it does not determine the title to
the property, nor establish the validity of any devise given by
it, the will having no greater effect after probate than other
legal conveyances.*?

Until the will has been properly probated, it can not be used
for any purpose, either to vest or establish any right under it,
or as evidence in any court of a right claimed ;** but when once
properly probated, the will becomes operative, and relates back
to the date of the testator’s death.**

§ 509. Revocation of probate.-—The court granting pro-
bate of a will has inherent, and, in some states, statutory power
to revoke the probate thereof.*° This power is exercisable as to
wills probated in common form,** or without contest.*” Ina few
jurisdictions, however, the court granting probate of a will is
denied the power to vacate its decree.**

Some sufficient grounds for revoking the probate must be al-
leged and proved; and the statutes usually specify that the pro-
bate may be revoked where it is shown that the court acted with-
out jurisdiction,*® that the probate was the result of some fraud

81 Faught v. Faught, 98 Ind. 470;
Fallon v. Chidester, 46 Iowa 588, 26
Am. Rep. 164; Poplin v. Hawke, 8
N. H. 124; Evans v. Anderson, 15
Ohio St. 324.

82 Fallon v. Chidester, 46 Iowa 588,
26 Am. Rep. 164; Greenwood v. Mur-
ray, 26 Minn. 259, 2 N. W. 945.

83 Moore v. Stephens, 97 Ind. 271.

84 Pitts v. Melser, 72 Ind. 469.

85 Sowell v. Sowell, 40 Ala. 243;
Bacigalupo v. Superior Court, 108
Cal. 92, 40 Pac. 1055; Larson v. How,
71 Minn. 250, 73 N. W. 966; In re
Miller, 28 Misc. 373, 59 N. Y. S. 978;

Rockwell v. Holden, 22 R. I. 244, 47
Atl. 543; Hotchkiss v. Ladd, 62 Vt.
209, 19 Atl. 638.

86 Wall v. Wall, 30 Miss. 91, 64
Am. Dec. 147,

87 Gordon v. Old, 52 N. J. Eq. 317,
30 Atl. 19.

88 Delehanty v. Pitkin, 76 Conn.
412, 56 Atl. 881; Wright v. Wright,
79 Mich. 527, 44 N. W. 944; In re
McAndrew’s Estate, 206 Pa. 366, 55
Atl. 1040.

89In re Warfield, 22 Cal. 51, 83
Am. Dec. 49; Davis v. Upson, 209
Ili, 206, 70 N. E. 602.
449

PROBATE

§ 509

or mistake,*° that the testator was without capacity to make the

will,®* and “other sufficient causes.

9992

The probate of a will can be revoked only at the instance of a

person interested in the estate,**

provided he is not estopped by

his acceptance of a legacy or otherwise.**

90 Shultz v. Houck, 29 Md. 24;
Vance v. Upson, 64 Tex. 266; Good-
ell v. Pike, 40 Vt. 319; Parsons v.
Balson, 129 Wis. 311, 109 N. W. 136.

91In re Kilborn, 158 Cal. 593, 112
Pac. 52; Odom v. Thompson, 9 N.
Car. 24. :

92Matter of Tilden, 56 App. Div.
277, 67 N. Y. S. 879,

29—Tuomp. WILLS.

83 Cowden v. Cowden, 2 How.
(Miss.) 806; In re Peaslee’s Will, 73
Hun 113, 25 N. Y. S. 940, 56 N. Y.
St. 134; Wynne v. Spiers, 7 Humph.
(Tenn.) 394,

®4In re Richardson’s Will, 81 Hun
425, 30 N. Y. S. 1008, 63 N. Y. St.
201,
CHAPTER XXVII

CONTEST OF WILLS

SECTION SECTION

515. Various methods of contest. 524. Grounds for contest in general.
516. Nature of proceeding to contest. 525. Pleadings in actions to contest
517. Who may oppose or contest pro- wills.

bate. 526. Burden of proof.
518. Who may contest a probated 527. Issues in general.

will. 528. Invalidity of execution as an is-
519, When contestant estopped. sue,
520. Limitation of time for contest. 529. Issue of testamentary incapacity.
521. Jurisdiction of actions to con- 530. Undue influence as an issue.

test wills. 531. Issue of fraud and forgery.

522. Jurisdiction of federal courts. 532. Trial.
523. Parties in actions to contest 533. Evidence.
wills. 534. Verdict and decree.

§ 515. Various methods of contest.—The uncontested pro-
ceeding to probate a will is wholly ex parte, and the judgment
or order admitting it to probate establishes prima facie its validity
as a testamentary instrument. This is the common form of pro-
bate which we treated in the preceding chapter, and is the form
authorized by statute in some states. In other states a notice and
an opportunity for a contest are given, formal or informal, in the
probate court. If the will is admitted to probate or rejected with-
out a contest, or after a contest not tried by a jury, an appeal may
usually be taken to a court in the county where the case may be
tried de novo by a jury. In still other states, after the will is ad-
mitted to probate in the probate court, a retrial may be had upon
petition to that court to revoke the probate, or an action at law or
a suit in equity to contest the validity of the probated will may be
brought in another court within the county.t These methods of
contest by appeal, by petition to revoke the probate, or by original

1See Digest of Statutes, ch. 28.
450
451 CONTEST § 516
action, correspond in purpose and effect to the probate in solemn
form, of which we have already spoken.?

The validity of a will may be tested by other methods than
those set out in statutes authorizing contests of wills. Chancery
courts have often construed wills and entertained suits for the
purpose, and the first step in all cases seeking a proper construc-

tion of a will was to ascertain the validity of the instrument.’

§ 516. Nature of proceeding to contest—It would serve
no useful purpose here to detail the various statutory provisions
relating to the procedure for the contest of wills, The general
purpose of these statutes is to provide a review, where demanded,
of the action of the court in probating the will; to give to all par-
ties in interest their day in court; and to fix a time within which
the proceeding to contest must be brought or the decree of probate
become final. The proceeding is generally held to be one in rem,*
and can commonly be brought only after the will has been pro-
bated.’ It was formerly treated asa suit in equity, and this view
is still held by some courts in spite of statutory changes.®

The right to test the validity of a will given by statute is cumu-
lative in a certain sense, and is in addition to the old right in
equity.” But it is generally regarded as neither an action at law
nor a suit in equity,® and is a civil case, though not a civil action.

2 Knox v. Paull, 95 Ala. 505, 11 So.
156; Shaw v. Camp, 61 Ill. App. 68;

of Sweeney, 94 Nebr. 834, 144 N. W.
902.

Dew v. Reid, 52 Ohio St. 519, 40 N.
E, 718,

32 Story’s Equity, § 1446; Craw-
fordsville Trust Co. v. Ramsey, 178
Ind. 258, 98 N. E. 177.

4Kumpe v. Coons, 63 Ala. 448; In
re Davis’ Estate, 151 Cal. 318, 86 Pac.
183, 90 Pac. 711, 121 Am. St. 105;
Cruit v. Owen, 21 App. (D. C.) 378;
Maurer v. Miller, 77 Kans. 92, 93
Pac. 596, 127 Am. St. 408, 15 Ann.
Cas. 663; Bradford v. Blossom, 207
Mo. 177, 105 S. W. 289; In re Estate

5Irving v. Bruen, 110 App. Div.
558, 97 N. Y. S. 180; Stacey v. Cun-
ningham, 69 Ohio St. 176, 68 N. E.
1001.

6 Claussenins v. Claussenins, 179
Ill, 545, 53 N. E. 1006; Keister v.
Keister, 178 Ill. 103, 52 N. E. 946.

7 Faught v. Faught, 98 Ind. 470.

8 Clough v. Clough, 10 Colo. App.
433, 51 Pac. 513; Grady v. Hughes, 64
Mich. 540, 31 N. W. 438.

® Carpenter v. Bailey, 127 Cal. 582,
60 Pac. 162.

~N
§ 517 WILLS 452
Although the proceeding is in the nature of an appeal,*° it is an
original action,’ and must be tried de novo.”

Whether the will was properly or improperly probated is not
in issue, nor does the contest review the action of the court below
onerror.*® Ina contest the question of the validity of the will as
offered for probate is raised for adjudication on its merits, and
the court is not restricted in its inquiry by the action of the court
in admitting the instrument to probate.**

§ 517. Who may oppose or contest probate.—The probate
of a will can be opposed or resisted only by one having some in-
terest in the estate which will be adversely affected if the will be
probated.** Such interest must be a substantial and not a mere
contingent interest.*®

Such contestant may be the testator’s heirs,’” his next of kin,**
legatees or devisees under a prior will or codicil,*® or one entitled

to administer the estate in case the proposed will is denied pro-

bate.”°

10 Haynes v. Haynes, 33 Ohio St.
598, 31 Am. Rep. 579.

11 Bradford v. Andrews, 20 Ohio
St. 208, 5 Am. Rep. 645.

12 Moore v. McNulty, 164 Mo. 111,
64 S. W. 159; Herring v. Ricketts,
101 Ala. 340, 13 So. 502.

13In re Watson’s Will, 131 N. Y.
587, 30 N. E. 56, 4 Silv. Ct. App. 30;
Converse v. Starr, 23 Ohio St. 491;
Clark v. Ellis, 9 Ore. 128.

14 McIntire v. McIntire, 162 U. S.
383, 16 Sup. Ct. 814, 40 L. ed. 1009;
In re Mack’s Appeal, 71 Conn. 122,
41 Atl. 242; Shaw v. Camp, 163 Ill.
144, 45 N. E. 211, 36 L. R. A. 112;
Preston v. Fidelity Trust &c. Co., 94
Ky. 295, 22 S. W. 318, 15 Ky. L. 130;
Sanderson v. Sanderson, 52 N. J. Eq.
243, 30 Atl. 326; Berg’s Estate, 173
Pa. St. 647, 34 Atl. 234,

15 State v. Sacramento County
Super. Ct., 148 Cal. 55, 82 Pac. 672,
2L. R. A. (N. S.) 643; Meyer v.

Fogg, 7 Fla. 292, 68 Am. Dec. 441;
Watson v. Alderson, 146 Mo. 333, 48
S. W. 478, 69 Am. St. 615; Murry v.
Hennessey, 48 Nebr. 608, 67 N. W.
470; In re Coursen’s Will, 4 N. J. Eq.
408.

16 State v. Sacramento County Su-
perior Ct., 148 Cal. 55, 82 Pac. 672, 2
L. R. A. (N. S.) 643; In re Fallon’s
Will, 107 Iowa 120, 77 N. W. 575.

17 Murphy v. Murphy, 65 S. W. 165,
23 Ky. L. 1460; Theriot’s Succession,
114 La. 611, 38 So. 471; In re Hob-
bin’s Estate, 41 Mont. 39, 108 Pac. 7.

18 Watson v. Alderson, 146 Mo.
333, 48 S. W. 478, 69 Am. St. 615.

19In re Langley’s Estate, 140 Cal.
126, 73 Pac. 824; Murphy v. Murphy,
65 S. W. 165, 23 Ky. L. 1460.

20Watson v. Alderson, 146 Mo.
333, 48 S. W. 478, 69 Am. St. 615;
Matter of Davis, 45 Misc. 554, 92 N.
Y. S. 968.
453 CONTEST § 518
§ 518. Who may contest a probated will—The right to
contest a will exists in favor of any interested person, and his
interest must be pleaded and proved or the contest will be dis-
missed.”* All must show an interest who join in such action.”
The right to contest a will is purely statutory in most juris-
dictions, and one insisting upon such right must bring himself
clearly within the statute.”* This right of contest exists in be-~
half of heirs at law,** a surviving spouse,”® legatees and dev-
isees,*° assignees of legatees,*” beneficiaries under a trust,”*
claimants under a prior will,”® and claimants under a subsequent
will.
Devisees or legatees under a lost will may contest the validity
of another will which attempts to dispose of the same property.**
But persons without any interest can not maintain an action
to contest a will.°? Thus it has been held that a creditor of the
testator has no such interest as will authorize him to maintain
the action,** nor has the donee of an heir at law such an interest

as will entitle him to contest the will.**

21 Lockard v. Stephenson, 120 Ala.
641, 24 So. 996, 74 Am. St. 63; Flow-
ers v. Flowers, 74 Ark. 212, 85 S. W.
242; Vestry of St. John’s Parish v.
Bostwick, 8 App. (D. C.) 452; In re
Edelman’s Estate, 148 Cal. 233, 82
Pac. 962, 113 Am. St. 231; Schmidt
v. Bomerbach, 64 Ind. 53; State ex
rel, Nolte v. McQuillin, 246 Mo. 674,
152 S. W. 341, Ann. Cas. 1914 B, 526;
Murry v. Hennessey, 48 Nebr. 608, 67
N. W. 470; Rothrock v. Rothrock, 22
Ore. 551, 30 Pac. 453.

22 Scott v. Farman, 89 Ind. 580.

23 Harrison v. Stanton, 146 Ind.
366, 45 N. E. 582.

24Hays v. Bowdoin, 159 Ala. 600,
49 So. 122; In re Benton’s Estate,
131 Cal. 472, 63 Pac. 775; Meyer v.
Fogg, 7 Fla. 292, 68 Am. Dec. 441;
Wetter v. Habersham, 60 Ga. 193.

25 Rainey v. Ridgway, 148 Ala. 524,
41 So. 632; In re Benton’s Estate,
131 Cal. 472, 63 Pac. 775.

The state has no interest

26In re Wickes’ Estate, 139 Cal.
195, 72 Pac. 902; Finch v. Finch, 14
Ga. 362; State v. McQuillin, 246 Mo.
674, 152 S. W. 341, Ann. Cas. 1914 B,
526. ,

27In re Engle’s Estate, 124 Cal.
292, 56 Pac. 1022.

28In re Fay’s Estate, 145 Cal. 82,
78 Pac. 340, 104 Am. St. 17.

29In re Langley’s Estate, 140 Cal.
126, 73 Pac. 824; In re Buckingham’s
Appeal, 57 Conn. 545, 18 Atl. 256.

30 McCutchen v. Loggins, 109 Ala.
457, 19 So. 810; Roulett v. Mulherin,
100°Ga. 591, 28 S. E. 291,

81 McDonald v. McDonald, 142 Ind.
55, 41 N. E. 336,

32 McCutchen v. Loggins, 109 Ala.
457, 19 So. 810.

33 Montgomery v. Foster, 91 Ala.
613, 8 So. 349; Hooks v. Brown, 125
Ga. 122, 53 S. E. 583.

84Ransome v. Bearden, 50 Tex.

119.
§ 519 WILLS 454
which will entitle it to contest a will, where it merely shows that
there is a probability that some heir may fail to appear and claim
the property, so as to permit proceedings to declare an escheat.*®
Neither has a public administrator such interest as will entitle
him to maintain an action to contest.**

One who has resisted the probate of a will has had his day
in court and can not afterward contest such will by an action
under a statute providing for contest of probated wills ;*” and
where the will gives to an heir the precise portion he would
take as heir such person takes by descent and not under the will,
and has no such interest in the will as will give him a right to
contest it.

The guardian of an infant or person of unsound mind, can
not sue to contest a will, but the infant must sue by next friend,*°
or guardian ad litem.*°

§ 519. When contestant estopped.—A person may estop
himself from contesting a will by a transfer, release, agreement
or extinction of his heirship, and such estoppel, though equi-
table, may be pleaded as a defense in the probate court. Thus
an agreement by a legatee to pay money to an heir at law of
the testator for forbearance of his right to contest the will rests
upon a valuable consideration and is valid, and the court will
take cognizance of such agreement when it is relied on as a

defense by way of estoppel to

35 State v. Superior Court, 148 Cal.
55, 82 Pac. 672,2 L. R. A. (N. S.)
643; State v. McGlynn, 20 Cal. 233,
81 Am. Dec. 118.

36 In re Hickman’s Estate, 101 Cal.
609, 36 Pac. 118.

37 Morell v. Morell, 157 Ind. 179,
60 N. E. 1092; Harrison v. Stanton,
146 Ind. 366, 45 N. E. 582.
_38Thompson vy. Turner, 173 Ind.
593, 89 N. E. 314, Ann. Cas. 1912 A,
740, :

39 Campbell v. Fichter, 168 Ind.
645, 81 N. E. 661, 11 Ann. Cas. 1089.

49In re Dye’s Will, 16 N. Mex,

an action to contest the will.‘

297, 120 Pac. 306; Holland v. Couts,
42 Tex. Civ. App. 515, 98 S. W. 233;
In re Van Alstine’s Estate, 26 Utah
193, 72 Pac. 942.

41In re Edelman’s Estate, 148 Cal.
233, 82 Pac. 962, 113 Am. St. 231;
Fisher v. Clopton, 110 Mo. App. 663,
85 S. W. 623.

42 Sheppey v. Stevens, 185 Fed.
147; Prater v. Miller, 25 Ala. 320, 60
Am. Dec. 521; Rector &c. of St.
Mark’s Church v. Teed, 120 N. Y.
583, 24 N. E. 1014; Clark v. Lyons,
38 Misc. 516, 77 N. Y. S. 967.
455 § 519

CONTEST
Also a promissory note given in settlement of a threatened con-
test is valid, and may be plead in estoppel.** An agreement
between the testator and an expectant heir whereby the latter
relinquishes all interest in the estate that might in the future
vest in him will operate as an estoppel to a contest of a will made
by such testator.**

When one has accepted the benefits of a will with full knowl-
edge of the facts on which his right is based he is thereby
estopped from asserting the invalidity of the instrument, espe-
cially if there has been a lapse of time, witnesses have died, or
he and other interested parties have so altered their positions
that they can not be restored to statu quo.*

But there can be no estoppel as against a plaintiff unless it be
shown that the defendant has incurred some liability, or has
been induced to do something to his prejudice in consequence
of the plaintiff’s conduct.**

A person who has received a legacy under a will can not
contest the validity of the instrument without restoring the
legacy or bringing the money into court.*7 But where a devisee
under a will, claiming a devise of land, joins in an unsuccessful
suit for partition of the land, without knowledge at the time
of the mental unsoundness of the testator, he will not be estopped
to contest such will. He obtained nothing and has nothing to
restore. His election was without knowledge of the facts.**

43 Snowball v. Snowball, 164 Cal.
476, 129 Pac. 784; Lipps v. Panko, 93
Nebr. 469, 140 N. W. 761; Parriss v.
Jewell, 57 Tex. Civ. App. 199, 122 S.
W. 399.

44In re Garcelon’s Estate, 104 Cal.
570, 38 Pac. 414, 32 L. R. A. 595, 43
Am. St. 134.

45 Utermehle v. Norment, 197 U.
S. 40, 25 Sup. Ct. 291, 49 L. ed. 655;
Medlock v. Merritt, 102 Ga. 212, 29 S.
E, 185; Lanning v. Gay, 70 Kan. 353,
78 Pac. 810, 85 Pac. 407; Stone v.
Cook, 179 Mo. 534, 78 S. W. 801, 64
L. R. A. 287; Holland v. Couts, 42
Tex. Civ. App. 515, 98 S. W. 233.

46 Jones v. McPhillips, 82 Ala. 102,
2 So. 468; De Berry v. Wheeler, 128
Mo. 84, 30 S. W. 338, 49 Am. St.
538; Stevens v. Dennett, 51 N. H.
324; Brown v. Bowen, 30 N. Y. 541,
86 Am. Dec. 406.

47 Bowen v. Howenstein, 39 App.
(D. C.) 585, Ann. Cas. 1913 E, 1179;
Lee v. Templeton, 73 Ind. 315; Holt
v. Rice, 54 N. H. 398, 20 Am. Rep.
138.

48 Lee v. Templeton, 73 Ind. 315;
Rodermund vy. Clark, 46 N. Y. 354.
§ 520 WILLS 456

§ 520. Limitation of time for contest.—The statutes of
most states fix a period of time within which a will, once ad-
mitted to probate, may be contested; and if an action for that
purpose is not brought within the time so fixed the probate
becomes absolutely conclusive, and not open to further attack,
direct or collateral.“° This period of time varies in the different
states from one to five years, and contests are governed by such
statute instead of the ordinary statute of limitations.°° These
statutes are jurisdictional in their nature, since the court has
no jurisdiction of the subject-matter after the limitation has
expired.**

The limitation pfovided in the statute is a bar to all save those
who are under disability, such as infants, persons of unsound
mind, and non-residents of the state. These have a designated
time after the removal of their disabilities to contest the will.°?

As a result of these statutes a sale by the devisee of the land
devised will pass no title to the purchaser in case the will is
set aside in an action brought within the statutory period.

Where petition to contest a will is filed within the statutory
period of limitation, although a part only of the persons interested
are made parties thereto, the right of action is saved as to all who
may ultimately be made parties to such action, notwithstanding
the fact that some of them are not brought into the case until
after the period of limitation has expired.**

49 Bent v. Thompson, 138 U. S. 114,
11 Sup. Ct. 238, 34 L. ed. 902; In re
Dunsmuir’s Estate, 149 Cal. 67, 84
Pac. 657; In re Sharboro’s Estate, 63
Cal. 5; Matter of Becker, 28 Hun
(N. Y.) 207.

50 Bacigalupo v. San Francisco
Super. Ct. 108 Cal. 92, 40 Pac. 1055;
Storrs v. St. Luke’s Hospital, 180 Ill.
368, 54 N. E. 185, 72 Am. St. 211;
Evansville Ice &c. Co. v. Winsor, 148
Ind. 682, 48 N. E. 592; Duff v. Duff,
103 Ky. 348, 45 S. W. 102, 20 Ky. L.
52; Justus’ Succession, 45 La. Ann.
190, 12 So. 130; Meyer v. Henderson,
88 Md. 585, 41 Atl. 1073, 42 Atl. 241,

Schlottman v. Hoffman, 73 Miss. 188,
18 So. 893, 55 Am. St. 527; Stowe v.
Stowe, 140 Mo. 594, 41 S. W. 951;
Hughes v. Boone, 81 N. Car. 204;
Cox’s Estate, 167 Pa. St. 501, 31 Atl.
747.

51 Meyer v. Henderson, 88 Md. 585,
41 Atl. 1073, 42 Atl. 241.

52 Cornell v. Goodrich, 21 Ind. 179.

53 Robertson v. Brown, 187 Mo.
452, 86 S. W. 187, 106 Am. St. 485;
Hughes v. Burriss, 85 Mo. 660.

5¢Floyd v. Floyd, 90 Ind. 130;
Bradford v. Andrews, 20 Ohio St.
208, 5 Am. Rep. 645.
457 CONTEST § 521

An attempt to probate a codicil or a later will is regarded as a
contest, and is barred after tiie period of limitation has ex-
pired.*® :

$521. Jurisdiction of actions to contest wills—The courts
uniformly hold, in the absence of a statutory provision to the
contrary, that whenever power is given to a probate or surro-
gate court to probate a will, the decree of such court can not be
set aside by a court of equity,°* except in the absence of any rem-

edy at law.*’

Jurisdiction to determine the question of the validity of a will
is vested exclusively in courts of law,** or in the probate court.®®
In some states, however, actions in equity to contest wills are

provided for by statute.®

§ 522. Jurisdiction of federal courts.—Federal courts have
no jurisdiction in actions to contest wills unless a federal ques-

55 Watson v. Turner, 89 Ala. 220,
8 So. 20; In re Adsit’s Estate, Myr.
Prob. (Cal.) 266.

56 Watson v. Bothwell, 11 Ala. 650;

State v. McGlynn, 20 Cal. 233, 81 Am.
Dec. 118; Mitchell v. Hughes, 3 Colo.
App. 43, 32 Pac. 185; Hooks v.
Brown, 125 Ga. 122, 53 S. E. 583;

’ Dibble v. Winter, 247 Ill. 243, 93 N..
E, 145; Kirsher v. Kirsher, 120 Iowa’

337, 94 N. W. 846, 8 Prob. Rep. Ann.
719; Hughey v. Sidwell, 18 B. Mon.
(Ky.) 259; Chase v. Winans, 59 Md.
475; Swain v. Gilbert, 3 Mo. 347;
Vincent v. Vincent, 70 N. J. Eq. 272,
62 Atl. 700; Anderson v. Anderson,
112 N. ¥. 104, 19 N. E. 427, 2 L. R.
A. 175; Simmons v. Leonard, 89
Tenn. 622, 15 S. W. 444.

57 Beyer v. Le Fevre, 17 App. Cas.
(D. C.) 238; Anderson v. Anderson,
112 N. Y. 104, 19 N. E, 427, 2 L. R.
A. 175.

58 Gray v. Parks, 94 Ark. 39, 125
S. W. 1023; Dibble v. Winter, 247
Til, 243, 93 N. E. 145; Morse v.
Morse, 42 Ind. 365; Lynch v. Miller,

54 Iowa 516, 6 N. W. 740; Dean v.
Swayne, 67 Kans. 241, 72 Pac. 780;
Hans v. Holler, 165 Mo. 47, 65 S.
W. 308; In re Austin’s Will, 35 App.
Div. 278, 55.N. Y. S. 52; Lewis v.
Ames, 44 Tex. 319; In re Miller’s
Estate, 31 Utah 415, 88 Pac. 338.

59 Carrau v. O’Calligan, 125 Fed.
657; State v. McGlynn, 20 Cal. 233,
81 Am. Dec. 118; Tudor v. James, 53
Ga. 302; Gibson v. Dooley, 32 La.
Ann. 959; Scripps v. Wayne Prob.
Judge, 131 Mich. 265, 90 N. W. 1061.
100 Am. St. 614; Andersen v. Ander-
sen, 69 Nebr. 565, 96 N. W. 276; An-
derson v. Anderson, 112 N. Y. 104,
19 N. E. 427, 2 L. R. A. 175; Sumner
v. Staton, 151 N. Car. 198, 65 S. E.

*902, 18 Ann. Cas. 802.

60 McCutchen v. Loggins, 109 Ala.
457, 19 So. 810; Dibble v. Winter,
247 Ill. 243, 93 N. E. 145; Abbott v.
Traylor, 11 Bush (Ky.) 335; Wili-
jams v. Miles, 63 Nebr. 859, 89 N.
W. 451; Raudebaugh v. Shelley, 6
Ohio St. 307; Coffman v. Hedrick,
32 W. Va. 119, 9 S. E, 65.
§ 523 WILLS 458
tion arising under the constitution and laws of the United States
is involved, or unless there exists a question of diverse citizen-
ship of the parties.** :

When the controversy over the validity of a will arises be-
tween two citizens of different states, a federal court has juris-
diction of a proceeding to contest it which the statutes of a state
authorize to be instituted in the courts of general jurisdiction
of that state. “Where a state law, statutory or customary,
gives to the citizens of the state, in an action or suit inter parties,
the right to question at law the probate of a will, or to assail
probate in a suit in equity, the courts of the United States in
administering the rights of citizens of other states, or aliens, will
enforce such remedies.’

By virtue of their chancery jurisdiction, federal courts have
jurisdiction over the administration of estates when the requisite
citizenship and other conditions exist; but this jurisdiction does
not extend to the appointment of administrators, confirmation
of executors, or the probate of wills in either common or solemn
form or as a proceeding in rem,** unless the case comes up in
some form or other from the District of Columbia or from the
territories.®

§ 523. Parties in actions to contest wills—In order that
there may be a full hearing and final determination in an action
to contest a will, all persons interested in favor of the will or
who would be interested in the estate in the absence of the will,
should be made parties to the proceeding.®*

The action may be instituted by any one of the interested

61 Byers v. McAuley, 149 U. S. 608,
37 L. ed. 867, 13 Sup. Ct. 906.
62 Gaines v. Fuentes, 92 U. S. 22,

23 L. ed. 524, 1 Abb. N. Cas. 25n; ..

McDermott v. Hannon, 203 Fed.
1015; Sawyer v. White, 122 Fed. 223.

63 Farrell v. O’Brien, 199 U. S. 98,
50 L. ed. 101, 25 Sup. Ct. 727.

64 McDonnell v. Jordan, 178 U. S.
229, 44 L. ed. 1048, 20 Sup. Ct. 886;
Higgins v. Eaton, 178 Fed. 153; Ball
v. Tompkins, 41 Fed. 486.

65 Campbell v. Porter, 162 U. S.
478, 40 L. ed. 1044, 16 Sup. Ct. 871.

66 Coleman v. Floyd, 105 Ark. 300,
150 S. W. 703; Layton v. Jacobs, 5
Penn. (Del.) 71, 62 Atl. 691; Watson
v. Alderson, 146 Mo. 349, 48 S. W.
478, 69 Am. St. 615; In re Coryell’s
Will, 4 App. Div. 429, 39 N. Y. S.
508; Mordecai v. Canty, 86 S. Car.
470, 68 S. E. 1049,
459 CONTEST § 523
parties,®” and all others not joining as plaintiffs should be made
parties defendant.®

At common law heirs and next of kin were not necessary
parties to an action to contest a will;°° but they are now generally
made so by statute.”

The beneficiaries in the will, and all other persons who would
be injuriously affected by a decree setting aside the will are
deemed necessary parties defendant.™

The executor of a will, if he has qualified as such, has a right
to support and defend the will, and is usually deemed a neces-
sary party defendant; but he is no longer a necessary party
after he has fully administered the estate and been discharged.”

Purchasers of land from a devisee under a will duly probated
are necessary parties in an action to contest such will.”

67 Hays v. Bowdoin, 159 Ala. 600,
49 So. 122; Floyd v. Floyd, 90 Ind.
130,

68 Freeman v. Easly, 117 Ill. 317, 7
N. E. 656; Floyd v. Floyd, 90 Ind.
130; Tibbatts v. Berry, 10 B. Mon.
(Ky.) 473; Eddie v. Parke, 31 Mo.
513; Hutson v. Sawyer, 104 N. Car.
1, 10 S. E. 85; In re Miller’s Appeal,
159 Pa. St. 575, 28 Atl. 443; Wills v.
Spraggins, 3 Grat. (Va.) 555.

69 Bonnemort v. Gill, 167 Mass. 338, .

45 N. E. 768; Kischman v. Scott, 166
Mo. 214, 65 S. W. 1031; Knight v.
Hollings, 73 N. H. 495, 63 Atl. 38, 12.
Prob. Rep. Ann. 207; Bent v. Thomp-
son, 5 N. Mex. 408, 23 Pac. 234; Ma-
lone v. Cornelius, 34 Ore. 192, 55
Pac. 536.

70 Stapleton v. Stapleton, 21 Ala.
587; Stone v. Green, 30 Ga. 340;
Floto v. Floto, 213 Ill. 438, 72 N. E.
1092, 10 Prob. Rep. Ann. 68; In re
Myers’ Estate, 69 N. J. Eq. 793, 64
Atl. 138; Dworsky v. Arndstein, 29
App. Div. 274, 51 N. Y. S. 597; Ran-
kin v.,Rankin, 31 N. Car. 156.

™ McMaken v. McMaken, 18 Ala.
576; Janes v. Williams, 31 Ark, 175;
Thompson v. McDermott, 19 Fla.
852; Brown v. Riggin, 94 Ill. 560;
McGeath v. Starr, 157 Ind. 320, 61 N.
E. 664; Vancleave v. Beam, 2 Dana
(Ky.) 155; Maskell v. Roussel, 5
Rob. (La.) 500; Wells v. Wells, 144
Mo. 198, 45 S. W. 1095; Early v.
Nash, 139 App. Div. 736, 124 N. Y.
S. 293; Odom v. Thompson, 8 N.
Car. 58; Reformed Presb. Church v.
Nelson, 35 Ohio St. 638; Dower v.
Church, 21 W. Va. 23.

72 McArthur v. Scott, 113 U. S.
340, 28 L. ed. 1015, 5 Sup. Ct. 652;
In re Whetton’s Estate, 98 Cal. 203,
32 Pac. 970; Evans v. Arnold, 52 Ga.
169; Campbell v. Campbell, 130 Ill.
466, 22 N. E. 620, 6 L. R. A. 167;
Pleasants v. McKenney, 109 Md. 277,
71 Atl. 955; Timpson v. Lorsch, 50
Misc. 398, 100 N. Y. S. 535.

73 Foley v. O’Donaghue, 167 Ind.
134, 77 N. E. 352,

7 Roberts v. Abbott, 127 Ind. 83,
26 N. E. 565.
§ 524 WILLS 460

§ 524. Grounds for contest in general—The grounds for
the contest of a will usually are (1) want of proper execution,”
(2) forgery,”* (3) incapacity of the testator,” (4) accident or
mistake,"* (5) fraud, (6) undue influence,” or (7) any other
matter involving the execution of the will.

By statute in some states the grounds for contesting a will
are (1) unsoundness of the testator’s mind and (2) undue exe-
cution. Under the first are to be classed every species of mental
unsoundness that would render a party incompetent, while all
objections to the validity of the execution of the will are in-
cluded under the second head. Duress and fraud are not to be
regarded as additional causes of contest, but as examples of
undue execution.** Under such statutes the phrase’ “undue exe-
cution” has been held to include every species of duress, fraud,
coercion, infancy, revocation, and every other valid objection to
the execution of the will.®?

The plaintiff is not confined to any single ground of contest.**
He may allege any number of grounds, and proof of one is suf-
herent.*

An application to probate a foreign will may be resisted on
the ground that the copy of the will or of the record of the
foreign probate is not properly authenticated, that the probate,
though duly authenticated, is insufficient on its face,*® that the
will is insufficiently executed as to its disposition of real estate
within the state,°’ that the foreign court had no jurisdiction,**

75 Thompson v. Rainer, 117 Ala.
318, 23 So. 782.

76In re Thomas’ Estate, 155 Cal.
488, 101 Pac. 798.

77 Etter v. Armstrong, 46 Ind. 197.

78 Knight v. Hollings, 72 N. H. 495,
62 Atl. 38.

79 Wells v. Betts, 45 App. Div. 115,
61 N. Y. S. 231.

80 Etter v. Armstrong, 46 Ind. 197;
Payne’s Succession, 25 La. Ann. 202.

81 Lange v. Dammier, 119 Ind. 567,
21 N. E. 749; Kenworthy v. Williams,
5 Ind. 375.

82Vance v. Vance, 74 Ind. 370;
Willett v. Porter, 42 Ind. 250.

83 Hays v. Bowdoin, 159 Ala. 600,
49 So. 122.

84 Moore v. Heineke, 119 Ala. 627,
24 So. 374.

85 Lytle’s Succession, 1 Rob. (La.)
268.

86 Barr v. Closterman, 2 Ohio C. C.
387, 1 Ohio C. Dec. 546, 27 Wkly. L.
Bul. 392.

87 Otto v. Doty, 61 Iowa 23, 15 N.
W. 578; Dublin vy. Chadbourn, 16
Mass. 433.

88 Stark v. Parker, 56 N. H. 481.
461 CONTEST § 525
or that the party prosecuting the application for record has no

interest.®°

§ 525. Pleadings in actions to contest wills.—An action to
contest a probated will is instituted by the filing of a bill, peti-
tion or complaint setting forth with definiteness and certainty
the grounds relied on for relief, and the facts necessary to give
the court jurisdiction.

In whatever form the probate of a will is contested, it is re-
quired that the contestant shall allege the grounds of his con-
test. Any number of grounds may be alleged, and, unless re-
quired by the code, the separate grounds need not be separately
paragraphed.** The allegations should be of facts and not con-
clusions of law.°* A prima facie case of the invalidity of the
will must appear from the pleadings on the part of the contest-
ant.°*

Where unsoundness of mind or undue execution is relied on
by the contestant it is sufficient if he state that at the time of
the alleged execution of the proposed paper the decedent was
not of sound and disposing mind,” or that the instrument was
unduly executed.°* But the facts relied on for relief must be
alleged where the grounds of contest embrace fraud, duress, or

undue influence.”

89 Lytle’s Succession, 1 Rob. (La.)
268.

90 Barksdale v. Davis, 114 Ala. 623,
22 So. 17; In re Sheppard’s Estate,
149 Cal. 219, 85 Pac. 312; Hixon v.
West, 83 Ga. 786, 10 S. E. 450; Sin-
net v. Bowman, 151 Ill. 146, 37 N. E.
885; Fowler v. Young, 19 Kan. 150:

91 Hairston v. Hairston, 30 Miss.
276; In re Cozzens’ Will, 61 Pa. St.
196.

92McDonald_ v.
Ind. 55, 41 N. E. 336.

93 Ellis v. Crawson, 147 Ala. 294, 41
So. 942; Herbert v. Berrier, 81 Ind. 1.

94Lyons v. Campbell, 88 Ala. 462, 7

McDonald, 142

So. 250; Meeks v. Lofley, 99 Ga. 170,
25 S. E. 92.

85 Hays v. Bowdoin, 159 Ala. 600,
49 So. 122; In re Kilborn’s Estate,
158 Cal. 593, 112 Pac. 52; Lange v.
Dammier, 119 Ind. 567, 21 N. E. 749.

96 Barksdale v. Davis, 114 Ala. 623,
22 So. 17; In re Burrell’s Estate, 77
Cal. 479, 19 Pac. 880; Wenning v,
Teeple, 144 Ind. 189, 41 N. E. 600.

97 Ellis v. Crawson, 147 Ala. 294,
41 So. 942; In re Sheppard’s Estate,
149 Cal. 219, 85 Pac. 312; McCam-
bridge v. Walraven, 88 Md. 378, 41
Atl. 928; Story v. Story, 188 Mo. 110,
86 S. W. 225; Brown v. Mitchell, 75
Tex. 9, 12 S. W. 606.
§ 526 WILLS 462

As the will itself is not the foundation of the action it is not
necessary to file a copy of it with the complaint as an exhibit.**

The interest of the contestor should also be shown,” and, if
required, the complaint must allege that all interested persons
are made parties to the action.*

The complaint should contain a prayer for the relief contem-
plated by the statute ;? and, where required by the statute or local
usage, the pleading should be verified.*

§ 526. Burden of proof.—In an action to contest a will on
the ground of unsoundness of mind of the testator the burden
of proof is generally upon the plaintiff or contestant until the
fact of such unsoundness of mind has been established.* But
there are cases which hold that the proponent of the will has
the burden of proof as to every fact necessary to the validity
of the will, including the mental capacity of the testator.° The
courts holding the latter view take the position that the rule
that all persons are presumed sane until the contrary appears

98 Schmidt v. Bomersbach, 64 Ind.
53.

99 Niederhaus v. Heldt,
480.

1Early v. Nash, 139 App. Div. 736,
124 N. Y. S. 293. 5

2Luther v. Luther, 122 Ill. 558, 13
N. E. 166; In re Watson, 131 N. Y.
587, 30 N. E. 56, 4 Silv. Ct. App. 30.

° Jeffreys v. Alston, 2 Law Reposi-
tory (N. Car.) 634; Keith v. Raglan,
1 Coldw. (Tenn.) 474.

4Barnewall v. Murrell, 108 Ala.
366, 18 So. 831; McCulloch v. Camp-
bell, 49 Ark. 367, 5 S. W. 590; In re
Scott’s Estate, 128 Cal. 57, 60 Pac.
527; Smith v. Day, 2 Penn. (Del.)
245, 45 Atl. 396; Blough v. Parry,
144 Ind. 463, 40 N. E. 70, 43 N. E.
560; Blake v. Rourke, 74 Iowa 519,
38 N. W. 392; Boone v. Ritchie
(Ky.), 53 S. W. 518, 21 Ky. L. 864;
Barnes v. Barnes, 66 Maine 286; Ty-
son v. Tyson, 37 Md. 567; Carl v.
Gabel, 120 Mo. 283, 25 S. W. 214;

27 Ind.

Sheehan v. Kearney, 82 Miss. 688, 21
So. 41, 35 L. R. A. 102; Perkins v.
Perkins, 39 N. H. 163; In re Burn’s
Will, 121 N. Car. 336, 28 S. E. 519;
McCoon v. Allen, 45 N. J. Eq. 708,
17 Atl. 820; Howard v. Moot, 64 N.
Y. 262; Messner v. Elliott, 184 Pa.
St. 41, 39 Atl. 46; Allen v. Griffin, 69
Wis. 529, 35 N. W. 21.

5In re Barber’s Estate, 63 Conn.
393, 27 Atl. 973, 22 L. R. A. 90;
Evans v. Arnold, 52 Ga. 169; Bald-
win v. Parker, 99 Mass. 79; Moriarity
v. Moriarity, 108 Mich. 249, 65 N.
W. 964; In re Layman’s Will, 40
Minn. 371, 42 N. W. 286; Patten v.
Cilley, 67 N. H. 520, 42 Atl. 47;
Murry v. Hennessey, 48 Nebr. 608, 67
N. W. 470; Chrisman v. Chrisman,
16 Ore. 127, 18 Pac. 6; Williams v.
Robinson, 42 Vt. 658, 1 Am. Rep.
359; In re Baldwin’s Estate, 13
Wash. 666, 43 Pac. 934; McMechen
v. McMechen, 17 W. Va. 683, 41 Am.
Rep. 682.
463 CONTEST § 527
does not apply to cases of this character, and that there must
be sufficient proof to make out a prima facie case of the sanity
of the testator at the time the will is made as one of the juris-
dictional facts.®

Other courts hold that after the proponent has made out such
prima facie case, the contestant must overcome this prima facie
showing by substantial evidence ;” or by a preponderance of the
evidence. Where the issue in a contest case is undue influence
the weight of authority is that the burden of proof is upon the
contestant.? But when suspicious circumstances of the existence
of undue influence exist, it is sometimes said that the burden
shifts to the beneficiaries under the will to show that there was
no undue influence.*°

§ 527. Issues in general—The probate of a will and all
forms of statutory contests of such probate are confined to the
issue devisavit vel non—did he make a devise or not. But in
actions to contest probated wills the grounds of contest must
usually be specifically stated, and no evidence can be introduced

upon issues not thus specified.™*

*In re Baldwin’s Estate, 13 Wash.
666, 43 Pac. 934.

7 Barber’s Estate, 63 Conn. 393, 27
"Atl 973, 22 L. R. A. 90; Fulbright
v. Perry County, 145 Mo. 432, 46 S.
W. 955.

8 Smith v. Henline, 174 Ill. 184, 51
N. E. 227; Hawkins v. Grimes, 13 B.
Mon. (Ky.) 257.

9 Chandler v. Jost, 96 Ala. 596, 11
So. 636; In re Livingston’s Appeal,
63 Conn. 68, 26 Atl. 470; In re Alli-
son’s Estate, 104 Iowa 130, 73 N. W.
489; Johnson-_v. Stevens, 95 Ky. 128,
23 S. W. 957, 15 Ky. L. 477; Sheehan
vy. Kearney, 82 Miss. 688, 21 So. 41,
35 L. R. A. 102; Prentis v. Bates, 93
Mich. 234, 53 N. W. 153, 17 L. R.
A. 494; Riley v. Sherwood, 144 Mo.
354, 45 S. W. 1077; Stewart v. Stew-
art, 56 N. J. Eq. 761, 40 Atl. 438;
Runyan v. Price, 15 Ohio St. 1, 86

In such proceedings the court

Am. Dec. 459; York’s Estate, 185 Pa.
St. 61, 39 Atl 1119; In re McGraw’s
Will, 9 App. Div. 372, 41 N. Y. S.
481, 75 N. Y. St. 872; Seebrock v.
Fedawa, 30 Nebr. 424, 46 N. W. 650;
Chappell v. Trent, 90 Va. 849, 19 S.
E. 314; McMaster v. Scriven, 85 Wis.
162, 55 N. W. 149, 39 Am. St. 828.

10Sheehan v. Kearney, 82 Miss.
688, 21 So. 41, 35 L. R. A. 102; Heg-
ney v. Head, 126 Mo. 619, 29 S. W.
587; Stewart v. Stewart, 56 N. J.
Eq. 761, 40 Atl. 438; Miller v. Miller,
187 Pa. St. 572, 41 Atl. 277; Chappel
v. Trent, 90 Va. 849, 19 S. E. 314.

11 Barksdale v. Davis, 114 Ala.
623, 22 So. 17; Redfield’s Estate, 116
Cal. 637, 48 Pac. 794; In re Living-
ston’s Appeal, 63 Conn. 68, 26 Atl.
470; Wenning v. Teeple, 144 Ind.
189, 41 N. E. 600; Hudson v.
Hughan, 56 Kans. 152, 42 Pac. 701;
§ 528 - ' WILLS 464
has no power to strike out certain items of the will on the ground
that they are illegal,"* or to interpret the meaning of the will,”
or to pass upon question of title.

While contestants are permitted to allege as many grounds
as they expect to attempt to prove, the issue should not be

duplicated.

§ 528. Invalidity of execution as an issue.—It has been
held that the issue of the invalidity of a will is sufficiently raised
by a general averment,*® but the better practice is to allege the
grounds of invalidity more precisely.’ This issue is one of
law where it is to be decided upon the face of the will,** or
where the facts are not disputed.”

Whether the attesting witnesses were competent is a question
of law.”

Under this issue all questions arising out of the compliance
or noncompliance with the statutory formalities of execution
will be inquired into, and such construction given the statute as
will be most favorable to the will.** The principal subjects of
inquiry under this issue relate to the signing, witnessing and
publication of the will, and an attestation clause purporting to
make the subscribing witnesses say that all the essentials to the
proper execution of the will were observed is a valuable support

to the will.”

Meyer v. Henderson, 88 Md. 585, 41
Atl. 1073, 42 Atl. 241.

12 Woodruff v. Hundley, 127 Ala.
640, 20 So. 98, 85 Am. St. 145; Estate
of Lennon, 152 Cal. 327, 92 Pac. 870,
125 Am. St. 58, 14 Ann. Cas. 1024;
Kultz v. Jaeger, 29 App. (D. C.)
300; Newsome v. Tucker, 36 Ga. 71;
Owens v. Sinklear, 110 Mo. 54, 19
S. W. 813.

13 Russell v. Russell, 3 Houst.
(Del.) 103; Robinson vy. Duvall, 27
App. (D. C.) 535.

14 Adams vy. Johnson, 129 Ga. 611,
59 S. E. 269.

15 National Safe Deposit &c. Co. v.
Sweeney, 3 App. ¢D. C.) 401; Con-

nelly v. Beal, 77 Md. 116, 26 Atl. 408.

16 Barksdale v. Davis, 114 Ala. 623,
22 So. 17.

17In re Burrell’s Estate, 77 Cal.
479, 19 Pac. 880; Flinn v. Owen, 58
Ill. 111.

18 Sartor v. Sartor, 39 Miss. 760;
Jackson v. Tozer, 154 Pa. St. 223, 26
Atl. 226.

19 Bramel v. Bramel, 101 Ky. 64, 39
S. W. 520, 18 Ky. L. 1074.

20Fuller v. Fuller, 83 Ky. 345, 7
Ky. L. 376, 395.

21 Hoysradt v. Kingman, 22 N. Y.
372,

22 Farley v. Farley, 50 N. J. Ea.
434, 26 Atl. 178; In re Kellum’s Will,
465 CONTEST § 529

§ 529. Issue of testamentary incapacity.—The issue of tes-
tamentary capacity is one of fact,’* but the standard by which
such capacity is to be measured must be defined by the court.”
The inquiry concerning the testator’s capacity must be confined
to the time of the execution of the will.”

While any of the statutory requisites of testamentary capacity
may be inquired into in a contest proceeding, the issue of mental
capacity is the most common and affords an extensive field of
inquiry. It involves the consideration of such matters as idiocy,
lunacy, monomania, delusions, hallucinations, eccentricity, de-
lirium, superstition, moral depravity, drunkenness, blindness,
feebleness, old age, and the like, and if it be shown that at the
time of the execution of the will the testator was affected by any
one or more of these afflictions to the extent of rendering him
incapable of making a testamentary disposition of his property,
the instrument will be set aside.”® But while the phrase “un-.
sound mind” includes every species of unsoundness of mind, it
is not necessary that the testator should be in full possession
of all his faculties.2” It has been held sufficient if he have ca-
pacity to comprehend the nature of the act in which he is en-
gaged at the time he executes the will.”

§ 530. Undue influence as an issue—Undue influence;
either alone or in conjunction with fraud, or unsoundness of
mind, is the issue in most cases of contests of wills. The in-
fluence exercised over the testator must have been such as to

52 N. Y¥. 517; In re O’Hagan’s Will,
73 Wis. 78, 40 N. W. 649, 9 Am. St.
763. :

23 Backus v. Cheney, 80 Maine 17,
12 Atl. 636; Tillman v. Hatcher, Rice
L. (S. Car.) 271.

24In re Kimberly's Appeal, 68
Conn. 428, 36 Atl. 847, 37 L. R. A.
261, 57 Am. St. 101; “‘Bramel v.
Bramel, 101 Ky. 64, 39 S. W. 520, 18
Ky. L. 1074.

25 Shailer v. Bumstead, 99 Mass.
112.

26 Blough v. Parry, 144 Ind. 463,

30—Tuomp. WILLS.

40 N. E. 70, 43 N. E. 560; Durham
v. Smith, 120 Ind. 463, 22 N. E. 333;
Den ex dem. Trumbell v. Gibbons, 22
N. J. L. 117, 51 Am. Dec. 253.

27 Burkhart v. Gladish, 123 Ind.
337, 24 N. E. 118.

28 Sturdevant’s Appeal, 71 Conn.
392, 42 Atl. 70; Schmidt v. Schmidt,
201 Ill, 191, 66 N. E. 371; In re
Hoopes’ Estate, 174 Pa. St. 373, 34
Atl. 603; Brown v. Mitchell, 75 Tex.
9, 12 S. W. 606; In re Gorkow’s
Estate, 20 Wash. 563, 56 Pac. 385.
§ 530 WILLS

466
amount to overpersuasion, coercion or force, an influence that
destroys the. free agency and will power of the testator. It must
not be merely the influence of affection or attachment, or the
desire of gratifying the wishes of one beloved, respected and
trusted by the testator.??

Undue influence may be exercised without actual fraud, or
false representations made to the testator.*° Any fear, or desire
for peace,** or flattery or overpersuasion,®® may amount to undue
influence, if it was actually exerted and had its effect on the
will?? But mere advice, argument or persuasion which does
not deprive the testator of his free agency does not amount to

undue influence.**

No presumption of undue influence arises from the fact of
the existence of interest or opportunity to exert undue influ-

ence.®°

In determining whether the will was the result of undue in-
fluence it is entirely proper to consider the mental condition of
the person upon whom the influence is alleged to have been

29 Ormsby vy. Webb, 134 U. S. 47,
33 L. ed. 805, 10 Sup. Ct. 478; Field
v. Camp, 193 Fed. 160; Higgin-
botham v. Higginbotham, 106 Ala.
314, 17 So. 516; Parker v. Hill,
85 Ark. 363, 108 S. W. 208; In
re Morcel’s Estate, 162 Cal. 188,
121 Pac. 733; Blackman v. Edsall,
17 Colo. App. 429, 68 Pac. 790;
Bohler v. Hicks, 120 Ga. 800, 48
S. E. 306; Schmidt v. Schmidt, 47
Minn, 451, 50 N. W. 598; Gordon v.
Burris, 153 Mo. 223, 54 S. W. 546;
Latham v. Schaal, 25 Nebr. 535, 41
N. W. 354; Westcott v. Sheppard, 51
N. J. Eq. 315, 30 Atl. 428; Simon v.
Middleton, 51 Tex. Civ. App. 531, 112
S. W. 441; Miller v. Livingston, 36
Utah 228, 102 Pac. 996; In re Jack-
man’s Will, 26 Wis. 104.

80 Moore v. Heineke, 119 Ala. 638,
24 So. 374; In re Morcel’s Estate,
162 Cal. 188, 121 Pac. 733; Franklin
v. Belt, 130 Ga. 37, 60 S. E. 146.

31 McDaniel v. Crosby, 19 Ark.
533; Gay v. Gillilan, 92 Mo. 250, 5
S. W. 7, 1 Am. St. 712; Boggs v.
Boggs, 62 Nebr. 274, 87 N. W. 39.

32Denslow v. Moore, 2 Day
(Conn.) 12.

33 Knox v. Knox, 95 Ala. 495, 11
So. 125, 36 Am. St. 235; Miller v.
Carr, 94 Ark. 176, 126 S. W. 1068;
Crowson v. Crowson, 172 Mo. 691, 72
S. W. 1065.

84 Steele v. Helm, 2 Marv. (Del.)-
237, 43 Atl. 153; Berst v. Moxom, 157
Mo. App. 342, 138 S. W. 74; Frank-
lin v. Boone, 38 Tex. Civ. App. 597,
88 S. W. 262.

35 In re Langford’s Estate, 108 Cal.
608, 41 Pac. 701; Dale’s Appeal, 57
Conn. 127, 17 Atl. 757; Ginter v. Gin-
ter, 79 Kans, 721, 101 Pac. 634, 22 L.
R. A. (N. S.) 1024; Luebbert v.
Brockmeyer, 158 Mo. App. 196, 138
S. W. 92; Cudney v. Cudney, 68 N.
Y. 148,
467. CONTEST § 531

exerted. “And, as the physical condition has much to do with
the mental, the physical condition of the testator may also be
considered.**

§ 531. Issue of fraud and forgery—Fraud has reference
to some deception practiced upon the testator in the execution,
of his will. There are many different forms of fraud that may
be made the basis of an action to contest a will. Thus it may
consist of the assumption of a false character by one for the
purpose of inducing a bequest in his favor by another ;°” or a
false statement or other imposition on the testator by which he
is made to believe that a certain person, who might otherwise
expect some legacy from him, has wronged him, or is unworthy
of his bounty.** But if the representations, though false, be
honestly made and with good intentions, they are not fraud-
ulent.*?

The will must have been procured wholly by lying or false
representations made by a beneficiary with the intention of pro-
curing the execution of the will, in order to invalidate it for
fraud.*® Deception and misrepresentation deliberately practiced
on the testator for the purpdse of procuring the execution of the
will, if in fact he is deceived thereby, is such a fraud as will viti-
ate the will thus procured.** Fraud in obtaining particular
legacies does not invalidate the whole will.*

§ 532. Trial—The authorities generally hold that there is
no constitutional right to a trial by jury of questions of fact in
proceedings to contest wills before or after probate;** but by

36 Schieffelin v. Schieffelin, 127 Ala. Schemme, 157 Mo. 1, 57 S. W. 526,
14, 28 So. 687; Tobin v. Jenkins, 29 80 Am. St. 604.
Ark, 151; In re Everts’ Estate, 163 39In re Benton’s Estate, 131 Cal.
Cal. 449, 125 Pac. 1058; Lehman v. 472, 63 Pac. 775; Hannah v. Ander-
Lindenmeyer, 48 Colo. 305, 109 Pac. son, 125 Ga. 407, 54 S. E. 131;
956; Delaney v. Salina, 34 Kans. 532, 40 Simon v. Middleton, 51 Tex. Civ.
9 Pac. 271; Myers v. Hauger, 98 Mo. App. 531, 112 S. W. 441.

433, 11 S. W. 974. : 41 Moore v. Heineke, 119 Ala. 627,
37 Smith v. Du Bose, 78 Ga. 413, 3 24 So. 374,

S. E. 309, 6 Am. St. 260. 42 Florey v. Florey, 24 Ala. 241.
38In re Ruffino’s Estate, 116 Cal. 43 Cummins v. Cummins, 1 Marv.

304, 48 Pac. 127; Schierbaum v. (Del.) 423, 2 Hard, 125, 31 Atl. 816;
§ 533 WILLS 468

statutory provision or established usage, a jury trial of an issue
prescribed by statute or framed under the direction of the court
is usually imperative, even where the contest is by suit in equity,
or of right upon demand of either party.”

In other jurisdictions, however, the court may, in the exer-
cise of its sound discretion, submit the issues to a jury.**

In its instructions to the jury the court should define the issues
with clearness and precision,*’ so they will not set up their own
opinions regarding the justness or reasonableness of the testator’s
disposition of his property.*

§ 533. Evidence-—Where the mental capacity of the tes-
tator is the issue in an action to contest a will the parties to the
contest proceeding are competent witnesses even though the
executor or administrator of the estate is a party to such action.*
Also the subscribing witnesses to the will are competent to testifv
as to the testator’s mental condition at the time the wil! was

made.*®

Wright v. Fultz, 138 Ind. 594, 38 N.
E, 175; Gilruth vy. Gilruth, 40 Iowa
346; Rich v. Bowker, 25 Kans. 7;
Wills v. Lochnane, 9 Bush (Ky.)
547; In re Welch’s Will, 69 Vt. 127,
37 Atl. 250; In re Clayson’s Estate,
26 Wash. 253, 66 Pac. 410; Moody v.
Found, 208 Ill. 78, 69 N. E. 831. But
see Cockrill v. Cox, 65 Tex. 669.

44 Clough v. Clough, 10 Colo. App.
433, 51 Pac. 513, affd. 27 Colo. 97, 59
Pac. 736; Brown v. Miner, 128 II,
148, 21 N. E. 223; Lamb v. Lamb,
105 Ind. 456, 5 N. E. 171; Holt v.
Lamb, 17 Ohio St. 374; In re New-
combe’s Will, 63 Hun 633, 18 N. Y.
S. 549, 45 N. Y. St. 806; Leonard v.
Burtle, 226 Ill. 422, 80 N. E. 992.

45 Neimand v. Seemann, 136 Iowa
713, 114 N. W. 48; Crawford v.
Schooley, 217 Pa. 429, 66 Atl. 743;
Pine v. Callahan, 8 Idaho 684, 71 Pac.
473; Bohannon v. Tabbin, 76 S. W.
46, 25 Ky. L. 515; Walts v. Walts,
127 Mich, 607, 86 N. W. 1030; Shelby

v. St. James Orphan Asylum, 66
Nebr. 40, 92 N. W. 155.

46 Gallon v. Haas, 67 Kans. 225, 72
Pac. 770; Plant v. Harrison, 52 App.
Div. 434, 65 N. Y. S. 234; Backus v.
Cheney, 80 Maine 17, 12 Atl. 636;
Doherty v. O’Callaghan, 157 Mass.
90, 31 N. E. 726, 17 L. R. A. 188, 34
Am. St. 258; Youmans v. Petty, 33
N. J. Eq. 532.

47In re Kohler’s Estate, 79 Cal.
313, 21 Pac. 758; Lehman v. Linden-
meyer, 48 Colo. 305, 109 Pac. 956;
Vance v. Upson, 66 Tex. 476, 1 S. W.
179,

48In re Langford’s Estate, 108 Cal.
608, 41 Pac. 701; Taylor v. McClin-
tock, 87 Ark. 243, 112 S. W. 405;
Coats v. Lynch, 152 Mo. 161, 53 S. W.
895.

42 Lamb v. Lamb, 105 Ind. 456, 5
N. E. 171; Staser v. Hogan, 120 Ind.
207, 21 N. E. 911, 22 N. E. 990.

50 Scott v. McKee, 105 Ga. 256, 31
S. E. 183; Robinson v. Duvall, 22
469 CONTEST § 533

In some jurisdictions the testimony of attesting witnesses is
given great weight,”* while in other jurisdictions their testimony
is given no greater weight than other lay witnesses.”

Witnesses who are neither medical experts nor attesting wit-
nesses may give their opinions as to the mental condition of the
testator at the time the will was executed, if it be shown to the
jury that such witnesses had the opportunity to form such opinion
from the habits, symptoms, acts and other manifestations on
the part of the testator.°? And where such witnesses bore close
family, business or social relations to the testator their evidence
respecting his mental condition is entitled to great weight.**

But such witnesses should not be permitted to give an opinion
as to the testator’s mental condition without accompanying it
with evidence of facts upon which such opinion is based.*°

Medical experts may, in answer to hypothetical questions,
based upon the evidence of others, testify to the effect of disease
on the mind and give their opinion of mental capacity,°® but in
some jurisdictions such expert opinion is of no value unless it
it based upon the personal observation of the expert.”

Some courts hold that the physician and attorney of a testator
are competent to testify in a proceeding to contest his will as to
facts ascertained in their attendance upon him in their profes-

54 Holton v. Cochran, 208 Mo. 314,
106 S. W. 1035.

App. (D. C.) 235; Steele v. Helm, 2
Marv. (Del.) 237, 43 Atl. 153; Call

v. Byram, 39 Ind. 499.

51 Ethridge v. Bennett, 9 Houst.
(Del.) 295, 31 Atl. 813, 1 Hardesty
15; Brown v. Mitchell, 88 Tex. 350,
31S. W. 621, 36 L. R. A. 64.

52In re Crandall’s Appeal, 63
Conn. 365, 28 Atl. 531, 38 Am. St.
375; Hughes v. Hughes, 31 Ala. 519.

58 Fish v. Poorman, 85 Kans. 237,
116 Pac. 898; Slaughter v. Heath, 127
Ga. 747, 57 S. E. 69, 27 L. R. A. (N.
S.) 1; In re Estate of Wilson, 78
Nebr. 758, 111 N. W. 788; Brown v.
Mitchell, 75 Tex. 9, 12 S. W. 606;
Burney v. Torrey, 100 Ala. 157, 14
So. 685, 46 Am. St. 33.

.55 Southworth v. Southworth, 173
Mo. 73, 73 S. W. 129; Zirkle v. Leon-
ard, 61 Kans. 636, 60 Pac. 318; Raub
yv. Carpenter, 187 U. S. 159, 47 L. ed.
119, 23 Sup. Ct. 72.

56 Potts v. House, 6 Ga. 324, 50
Am. Dec. 329; Prather v. McClel-
land, 76 Tex. 574, 13 S. W. 543.

57In re Higgins’ Estate, 156 Cal.
257, 104 Pac. 6; Barber’s Appeal, 63
Conn. 393, 27 Atl. 973, 22 L. R. A.
90; Lorts v. Wash, 175 Mo. 487, 75
S. W. 95.
§ 534 WILLS 470
sional capacity,°® while others hold that such persons may testify
at the instance of either party to the contest.*® But other courts
hold the testimony of such persons is privileged even after the
testator’s death, and can not be waived by his heirs.%°

The record of the probate and proof of a will is admissible in
an action to contest such will.

Statements or declarations of a testator made before, or after,
er contemporaneously with the execution of a will, may be ad-

-mutted in evidence as tending to show his mental condition at
the time of such execution; but unless made at or so near the
time of the execution of the will as to be considered a part of
the res geste, such statements are not at any time competent
to show fraud or undue influence.”

The admission of one devisee against the validity of the will
is not admissible as against the interest of other devisees,® but
such adniission may be received for the purpose of impeaching
or discrediting his testimony.*“* Where, however, such admission
is made by a sole devisee or legatee, and there are no others in-
terested who could be affected by his admissions, they are ad-
missible against his interest or those of his heirs.*°

§$ 534. Verdict and decree.—In an action to contest a will
on the ground of undue influence, it is competent for the jury
to render a general verdict in favor of the will as to some of

58 Shapter’s Estate, 35 Colo. 578, 85
Pac. 688, 6 L. R. A. (N. S.) 575, 117
Am. St. 216.

59 Hamilton v. Crowe, 175 Mo. 634,
75 S. W. 389; Estate of Gray, 88
Mebr. 835, 130 N. W. 746, 33 L. R. A.
(N. S.) 319, Ann. Cas. 1912 B, 1037;
In re Walker’s Estate, 150 Iowa 284,
128 N. W. 376, 129 N. W. 952; Olson
v. Court of Honor, 100 Minn. 117,
110 N. W. 374,8 L. R. A. (N. S.)
521, 117 Am. St. 676, 10 Ann. Cas.
622.

60 In re Flint’s Estate, 100 Cal. 391,
34 Pac. 863; In re Hunt’s Will, 122
Wis. 460, 100 N. W. 874; In re Van
Alstine’s Estate, 26 Utah 193, 72 Pac.

942; Auld v. Cathro, 20 N. Dak. 461,
128 N. W. 1025, 32 L. R. A. (N. S.)
71, Ann, Cas. 1913 A, 90n.

61 Summers v. Copeland, 125 Ind.
466, 25 N. E. 555.

62 Bower v. Bower, 142 Ind. 194,
41 N. E. 523; Estate of Ricks, 160
Cal. 450, 117 Pac. 532; Coghill v.
Kennedy, 119 Ala. 641, 24 So. 459.

63 Estate of Dolbeer, 153 Cal. 652,
96 Pac. 266, 15 Ann. Cas. 207; Teck-
enbrock v. McLaughlin, 209 Mo. 533,
108 S. W. 46.

64 Robinson v. Duvall, 27 App. (D.
C.) 535.

65 Wallis v. Luhring, 134 Ind. 447,
34 N. E. 231.
‘471 CONTEST § 534
its provisions and against it as to others.°* But the verdict must
be responsive to the issue or issues,°’ and where several ques-
tions are submitted it is the better practice to answer them sep-
arately.®*

In most jurisdictions the verdict of the jury, even where the
proceeding is by bill in chancery, has the same force and effect
as a verdict in an ordinary action at law.° But in a few of the
states the verdict is merely advisory to the court, like the ver-

dict on an issue in chancery, and may be accepted or rejected

in whole of in part by the court.”
The judgment or decree should simply establish or reject the
will,* and should follow the verdict of the jury as a matter of

course.”

66 Brook’s Appeal, 68 Conn. 294, 36
Atl. 47; Randolph v. Lampkin, 90
Ky. 551, 14 S. W. 538, 12 Ky. L. 517,
10 L. R. A. 87.

67 Forney v. Ferrell, 4 W. Va. 729;
Withee v. Rowe, 45 Maine 571;
Hairston v. Hairston, 30 Miss. 276.

68 Keebler v. Shute, 183 Pa. St. 283,
38 Atl. 586.

69 McCutchen v. Loggins, 109 Ala.
457, 19 So. 810; In re Dalrymple’s
Estate, 67 Cal. 444, 7 Pac. 906;
Brook’s Appeal, 68 Conn. 294, 36 Atl.
47; Wilcoxon v. Wilcoxon, 165 Ill.

454, 46 N. E. 369; Collins v. Brazill,

63 Iowa 432, 19 N. W. 338; Bramel
vy. Bramel, 101 Ky. 64, 39 S. W. 520,
18 Ky. L. 1074; Carvill v. Carvill, 73

Maine 136; Sumwalt v. Sumwalt, 52
Md. 338; In re Stebbins’ Estate, $4
Mich, 304, 54 N. W. 159, 34 Am. St.
345; Sartor v. Sartor, 39 Miss. 760;
Young v. Ridenbaugh, 67 Mo. 574;
Glancy v. Glancy, 17 Ohio St. 134.

70Cummins v. Cummins, 1 Marv.
(Del.) 423, 31 Atl. 816, 2 Hardesty
125; Hudson v. Hughan, 56 Kans.
152, 42 Pac. 701; Fay v. Vanderford,
154 Mass. 498, 28 N. E. 681; Ballan-
tine v. Proudfoot, 62 Wis. 216, 22 N.
W. 392.

71 Harris v. Hays, 53 Mo. 90.

72 Haynes v. Haynes, 33 Ohio St.
598, 31 Am. Rep. 579; Sumwalt v.
Sumwalt, 52 Md. 338,
CHAPTER XXVIII

DIGEST OF STATUTES

SECTION SECTION

540. Alabama. 572. New York.

541. Alaska. 573. North Carolina.
542. Arizona. 574. North Dakota.
543. Arkansas. 575. Ohio.

544. California. 576. Oklahoma.

545. Colorado. 577. Oregon.

546. Connecticut. 578. Pennsylvania.
547. Delaware. 579. Philippine Islands.
548. District of Columbia. 580. Porto Rico.

‘549. Florida. 581. Rhode Island.
550. Georgia. 582. South Carolina.
551. Hawaii. 583. South Dakota.
552. Idaho. 584. Tennessee.

553. Illinois. 585. Texas.

554. Indiana, 586. Utah.

555. Iowa. 587. Vermont.

556. Kansas. 588. Virginia.

557. Kentucky. 589. Washington.

558. Louisiana. 590. West Virginia.
559. Maine. 591. Wisconsin.

560. Maryland. 592. Wyoming.

561. Massachusetts. 593. British Columbia.
562. Michigan. 594. England and Ireland.
563. Minnesota. 595. Manitoba.

564. Mississippi. 596. New Brunswick.
565. Missouri. 597. Newfoundland.
566. Montana. 598. Nova Scotia.
567. Nebraska. 599. Ontario.

568. Nevada. 600. Other British Possessions.
569. New Hampshire. 601. Quebec.

570. New Jersey. 602. Saskatchewan.
571. New Mexico. 603. Scotland.

§ 540. Alabama.—All persons of the age of twenty-one
years and of sound mind may, by last will, devise lands, tene-
ments or hereditaments, or any interest therein to any person

472
473 DIGEST OF STATUTES § 541

or corporation capable by law of holding the same. If the devisee
is incapable of taking, the devise descends, as in case of intestacy,
or, if the testator has no heirs competent to take, to the residuary
devisee if one be named in the will capable of holding and if not
to the state.

All persons over the age of eighteen years and of sound mind,
and no others, may bequeath their personalty. Every devise
which a testator makes, in express terms or any other terms
denoting his intention to devise all his real property must be
construed to pass all the real estate he was entitled to devise
at the time of his death.

A will to be effectual to pass real or personal property must
be in writing, signed by the testator or some person in his pres-
ence, and by his direction, and attested by at least two witnesses
who must subscribe their names thereto in the presence of the
testator. This provision does not apply to wills of soldiers or
mariners at sea; nor to wills of personal property not exceeding
$500, made during testator’s last sickness at his dwelling, or
where he has resided ten days or more, except when he was
taken sick when away from home and died before his return;
such wills are valid though unwritten.

The subsequent incompetency of witnesses, from whatever
cause it may arise, must not prevent the probate of a will if the
witnesses are competent at the time of their attestation.

A probated foreign will may be proved by bringing into pro-
bate court a copy of the will and of the probate, certified by the
clerk or officer of court and judge before whom probated.

§ 541. Alaska.—Every person of sound mind and over the
age of twenty-one years may by last will devise all of his or her
property, except dower and curtesy. The will must be in writing,
signed by the testator or some other person in his presence and
under his direction, and must be attested by at least two wit-
nesses, subscribing their names thereto in the presence of the
testator. The subsequent marriage of the testator revokes the
will.

1Ala, Civ. Code (1907), ch. 150, §§ 172-6191.
§ 541 WILLS 474

If a testator die leaving a child or children or descendants
thereof not provided for in his will, lie is deemed to have died
intestate as to them, and all heirs, devisees, and legatees shall
refund proportional part. But if such child or children, or
their descendants, shall have an equal portion of the testator’s
estate bestowed upon them by way of an advancement, they take
nothing under the will.

Any mariner at sea or soldier in the military service may dis-
pose of his wages or other personal property as by common law
or by reducing the same to writing.

Nuncupative wills are allowed if the testamentary words or
the substance thereof is reduced to writing within thirty days
after they were spoken, and the writing probated within six
months after such words were spoken.

Where the beneficiary under a will attests the instrument as a
witness, he thereby forfeits the devise or bequest made to him.
If any such witness would be entitled to any share in the tes-
tator’s estate in case the will should not be established, then so
much of the estate as would have descended to him as will not
exceed the value of the devise or bequest made to him in the
will is given him; and he may recover the same from the devisees
or legatees named in the will in proportion to and out of the
parts devised and bequeathed to him. If the execution of such
will be attested by a sufficient number of other competent wit-
nesses, as required by code, then such devise shall be valid.”

If a will by a person owning property in Alaska be probated
in any state, territory or district of the United States or in any
foreign country, copies of the will and probate certified by the
clerk of court and judge may be recorded in the same manner
as wills executed in Alaska and be of the same effect. Any such
will may be contested in. Alaska. A last will and testament,
written and subscribed by the testator without the territory, and
executed in the mode prescribed by the law of either the testator’s
domicil or the place where executed, is deemed to be legally
executed, and is of the same force and effect as if executed in
the mode prescribed by the laws of the territory.*

2Carter’s Ann. Civ. Code, Alaska, 3 Alaska, Session Laws (1913), ch.
ch. 15, §§ 137-155. c 61.
475. DIGEST OF STATUTES § 542

§ 542. Arizona.—Every person of sound mind and over
the age of twenty-one years, or who may be or may have
been lawfully married, shall have power to make a will. Such
will shall be in writing and signed by the testator or some other
person, by his direction and in his presence, and shall, if not
wholly written by himself, be attested by two or more credible
witnesses above the age of fourteen years, subscribing their
names to the will in the presence of the testator. Where the
will is wholly in the handwriting of the testator no witnesses are
required.

Nuncupative wills are allowed if made in the last sickness of
the deceased, and where the property does not exceed fifty dol-
lars in value. But it must be shown by the testimony of three
competent witnesses that the testator called on some person to
take notice and bear testimony that such is his will, and that the
testimony or substance thereof was committed to writing within
six days after the making of such will; in such case the amount
is not limited. ;

Any soldier in actual military service, or any mariner or sea-
man.being at sea, may dispose of his personal property without
regard to the provisions of the statute.

Afterborn or pretermitted children take as though there had
been no will. Legacies to subscribing witnesses are void unless
they were otherwise entitled to share in the estate. Spendthrift
trusts are provided for.*

§ 543. Arkansas.—Every person of sound mind and over
the age of twenty-one may, by will, devise all his estate, both
real and personal and all interest therein.

All persons over the age of eighteen and of sound mind may
bequeath by will personalty.

A will to be effectual must be subscribed at the end by the
testator, or some other person at his request, and the subscrip-
tion shall be made in the presence of each of the attesting wit-
nesses or shall be acknowledged by him to have been so made
to each of the attesting witnesses. At the time of such subscrip-

Arizona Civ. Code (1913), ch. 19, §§ 1204-1225.
§ 544 WILLS 476

tion or at the time of acknowledging the same, the testator shall
declare the instrument so subscribed to be his last will and testa-
ment. There shall be at least two attesting witnesses each of
‘whom shall, at the request of the testator, sign his name as wit-
ness at the end of the will. (The attestation clause must contain
the above facts.) Where the entire body of the will and the
signature thereto shall be written in the proper handwriting of
the testator or testatrix it may be established by the evidence of
at least three disinterested witnesses to the handwriting and
signature of the testator without attesting witnesses to such will.
No will without such subscribing witnesses shall be pleaded in
bar of.a will subscribed in due form.

Nuncupative wills are effectual if made at the time of the
last sickness and at the dwelling of the deceased in the presence
of at least two witnesses and if the estate bequeathed does not
exceed $500. It must also be proved that the testator called on
some person present to witness that such was his will.

Wills are probated in the county of the testator’s residence at
time of death. If he had no known place of residence in this
state, and land is devised, then in the county where the land, or
the greater part of it, lies.

When a foreign will relative to an estate within this state, has
been proved without the same, a copy thereof and certificate of
probate may be offered for probate in this state if it was so exe-
cuted as to be a valid will of lands in this state by the law
thereof.

All mariners at sea or soldiers in the military service may
dispose of their wages and other personal property as at com-
mon law.

Citizens of any of the United States or territories thereof,
owning real or personal property in this state, may devise and
bequeath the same by will, executed and proved according to
the laws of this state or the place where made.®

§ 544. California—Every person over the age of eighteen’
years, of sound mind, may dispose of real and personal estate by

5 Arkansas: Kirby’s Dig. of Stats. (1904), ch. 160, §§ 8010-8050.
477 DIGEST OF STATUTES § 544

will. A married woman may dispose of all her separate estate
by will, without the consent of her husband.

Corporations other than counties, municipal corporations, and
corporations formed for scientific, literary, or solely educational
or hospital purposes, can not take under a will, unless expressed
by statute.

Every will, other than a nuncupative will, must be in writing,
and every will, other than an olographic will, and a nuncupative
will, must be executed and attested as follows: 1. It must be
subscribed at the end thereof by the testator himself, or some
person in his presence and by his direction must subscribe his
name thereto. 2. The subscription must be made in the presence
of the attesting witnesses, or be acknowledged by the testator
to them to have been made by him or by his authority. 3. The
testator must, at the time of subscribing or acknowledging the
same, declare to the attesting witnesses that the instrument is
his will; and, 4. There must be two attesting witnesses, each
of whom must sign the same as a witness, at the end of the will,
at the testator’s request and in his presence.

An olographic will is one that is entirely written, dated and
signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the state, and need
not be witnessed. A witness to a written will must write, with
his name, his place of residence; and a person who subscribes
the testator’s name, by his direction, must write his own name
as a witness to the will. But a violation of this section does not
affect the validity of the will.

A conjoint or mutual will is valid, but it may be revoked by
any of the testators, in like manner as any other will. If the
witnesses are competent when the will is executed, their subse-
quent incompetency from any cause, does not prevent the probate
of the will.

Gifts to subscribing witnesses are void, unless there are two
other competent witnesses to the same, but a mere charge on
the estate of the testator for the payment of debts does not pre-
vent his creditors from being competent witnesses to his will.

No will made out of the state is valid as a will in the state,
§ 544 WILLS 478

unless executed according to the California laws, except that a
will made in a state or country in which the testator is domiciled
at the time of his death, and valid as a will under the laws of
such state or country, is valid in this state so far as the same
relates to personal property, subject to restrictions on devises
for charitable uses.

No estate, real or personal, shall be bequeathed or devised to
any charitable or benevolent society or corporation, or to any
person or persons in trust for charitable uses, except the same
be done by will duly executed at least thirty days before the de-
cease of the testator; and no such devises or bequests shall col-
lectively exceed one-third of the estate of the testator, having
legal heirs.

A will is revoked by marriage of a man and birth of issue,
or by the survival of his wife, unless otherwise provided for,
and the will of a woman is revoked by her subsequent marriage,
and is not revived by the death of her husband.

Afterborn children, or unintentionally omitted children, take
the same share as if the testator had died intestate. A will
passes after-acquired rights, unless the contrary intention plainly
appears.

‘A nuncupative will may be valid, if the estate bequeathed
does not exceed in value one thousand dollars, but it must be
proved by two witnesses who were present at the making thereof,
one of whom was asked by the testator at the time, to bear wit-
ness that such was his will, or to that effect. The decedent must,
at the time, have been in actual military service in the field, or
doing duty on shipboard at sea, and in either case in actual con-
templation, fear, or peril of death, or the decedent must have
been, at the time, in expectation of immediate death from an
injury received the same day. There can be no proof of any
nuncupative will, unless offered after speaking the testamentary
words, nor unless the words, or the substance thereof, were re-
duced to writing within thirty days after making. —

%Cal. Civ. Code (1915), 1270-1313,
479 DIGEST OF STATUTES § 545

§ 545. Colorado.—All wills by which any property, real
or personal, is devised or bequeathed, shall be reduced to writing
and signed by the testator, or by some one in his presence and
by his direction, and attested in the presence of the testator by
two or more credible witnesses.

Males aged twenty-one years and females aged eighteen years,
being of sound mind and memory, may devise real property by
will. All persons aged seventeen years, of sound mind and
memory, may dispose of personal property by will. The con-
sent of the husband or wife, in writing, is necessary to the devise
or bequest by a married person of more than one-half his or her
estate away from the other spouse.

Any will, concerning realty in Colorado, which has been ad-
mitted to probate before a court in another state or territory
may be admitted to probate without further formality if accom-
panied by a certificate by the proper officer as to the former
probate. The marriage of testator revokes his will, but the sub-
sequent birth of child does not.

Devises to witnesses are void unless they are otherwise en-
titled to share in the estate.

Gifts to a child or grandchild who died before the testator
do not lapse but go to his issue if there be any, otherwise such
portion of the estate is considered as intestate estate.”

§ 546. Connecticut.—All persons of sound mind aged
eighteen years may dispose of their estate by will.

A will must be written, subscribed by the testator, and at-
tested by three witnesses, each of whom subscribes in the tes-
tator’s presence. Devises to witnesses are void unless such wit-
ness is an heir, or the will is otherwise legally attested.

If a devisee or legatee being a child, grandchild, brother or
sister of the testator, die before him, his issue take such estate
if no other provision is made.

And any will executed according to the laws of the state or
country where it was executed may be admitted to probate in

7 Mills’ Ann. Stat. Colo. (1912), §§ 7867-7892.
§ 547 WILLS 480

Connecticut, and is effectual to pass any estate of the testator
situated in Connecticut.

A will is revoked by subsequent marriage of testator or birth
of a child unprovided for.

A will proved without the state may be proved within it by
authenticated and exemplified copy of the will and record of
probate proceedings.®

§ 547. Delaware—Any person of sound and disposing
mind or memory, aged twenty-one or upward, may make a
will of real as well as personal estate.

Every will must be in writing, signed by the testator, or some
person subscribing the testator’s name in his presence and by
his express direction, and must be attested and subscribed in
his presence by two or more credible witnesses.

After-acquired land passes by a will, unless a contrary inten-
tion appears.

Afterborn children unprovided for take as though the parent
died intestate.

The birth of a child to a testator having no issue at the time
the will was made revokes his will.

A widow unprovided for by a will made before marriage
takes as though her husband died intestate.

A nuncupative will of personal estate to the extent of $200
is valid if pronounced before at least two witnesses requested to
take notice of such will and reduced to writing within three
days afterward.

The last will and testament of a person not residing in the
state at the time of his death, if properly executed and probated
without the state may be proved in the state provided a copy
of the same, duly verified, shall be presented for probate and
filed of record in the office of the register of wills in the county
where there are any lands, tenements or hereditaments of the
testator.®

® Conn. Gen. Stat. (1902), §§ 292- 9Del. Rev. Code (1915), 8§ 3239-
305. 3263,
481 DIGEST OF STATUTES § 548

§ 548. District of Columbia—Wills may be made by males
aged twenty-one and females aged eighteen, if of sound and
disposing mind and capable of executing a valid deed or con-
tract.

All wills must be in writing, and signed by the testator or
some other person in his presence and by his direction. They
must be attested and subscribed in the presence of the testator
by two credible witnesses. If it appears that such was the tes-
tator’s intention after-acquired real estate will pass by will.

Nuncupative wills to the amount of one hundred fifty dollars
are valid if proved by three witnesses and made in the testator’s
last illness at his habitation.”

§ 549. Florida—Every person of sound mind of the age
of twenty-one years may dispose of real and personal property
by will. A married woman may dispose by will of her property
in the same manner as if not married, even though she be a
minor.

All general or residuary devises or bequests are construed to
apply to the property owned by the testator at the time of his
death, unless otherwise restricted.

Every will disposing of real estate must be signed by the
testator or some other person in his presence and by his express
directions, and must be attested and subscribed in his presence
by two or more witnesses. All wills of personal property must
be in writing and signed by the testator or some other person
in his presence and by his express direction.

A nuncupative will must be proved by the oath of three wit-
nesses present at its making, and it must also be proved by them
that the testator at the time of pronouncing such will desired
them to bear witness that it was his last will, or to such effect,
and that such will was made during his last sickness. Nor can
any testimony be received to prove such will after six months
from the date of such will, unless it was reduced to writing and
sworn to before some judicial officer of the state within six
days from making.

10D. C. Code (1910), $$ 1625, 1626, 1634. ais

31--Tuomp. WILLs,
§ 550 WILLS 482

Foreign wills having been granted by a foreign court, may be
admitted to record in the county judge’s court, and when re-
corded, have the same effect as the probate of wills made in
the state.

An alien may devise and bequeath property as though a cit-
izen.™

§ 550. Georgia——No particular form of words are neces-
sary to make a will. All persons of sound mind over fourteen
years of age may make wills. All wills (except nuncupative
wills) must be in writing, signed by the party making the same,
or by some other person in his presence at his direction, and
attested and subscribed in the presence of the testator by three
competent witnesses. A witness may attest by his mark if he
can swear to it. One witness can not sign for another. Ifa
witness is a legatee, the will is valid, but the legacy is void.

Mutual wills may be made either separately or jointly.

A deaf, dumb, and blind person may make a will provided
both interpreter and scrivener are made attesting witnesses,

If a person has a wife or child he can not leave more than
one-third of his estate to a religious, charitable or educational
association, to the exclusion of his wife or child. A devise or
bequest to charity must be made at least ninety days before the
testator’s death.

Marriage of a testator or birth of a child, unprovided for, re-
vokes a will.

Foreign wills may be admitted to probate in the same manner
as domestic. If probate has been had in the foreign jurisdiction,
a certified copy of the will and an authenticated copy of the pro-
ceedings, under seal of the court, is prima facie evidence of due
execution.

Nuncupative wills may be proved by the oaths of three com-
petent witnesses, present at the time of making, whom the tes-
tator bade bear witness to his will if made during his last sick-
ness.7”

11Gen. Stats. Fla. (1906), §§ 2269- 12 Ga. Code (1911), §§$ 3827-3925.
2287, 2891.
483 DIGEST OF STATUTES § 551

§551. Hawaii—Every person of the age of eighteen
years, of sound mind, may dispose of both real and personal
estate by will. This includes married women.

A will to be valid must be in writing and signed by the tes-
tator, or by some person in his presence and by his express direc-
tion, and attested by two or more competent witnesses subscrib-
ing their names to the will in the presence of the testator.

Marriage of a woman revokes her will. Marriage of a man
followed by birth of a child to him, will revoke a will, if such
contingency is not provided for.

Gifts to witnesses who are not heirs are void, unless there are
two other competent witnesses.*®

§ 552. Idaho.—Same as California, except no limitations
on devises and bequests to charities and corporations.**

§ 553. Illinois—Males aged twenty-one and females aged
eighteen of sound mind and memory have the power to dispose
of real or personal estate by will.

All wills must be in writing and signed by the testator or tes-
tatrix, or by some person in his or her presence and by his or
her direction, and attested in the presence of the testator or
testatrix by two or more credible witnesses, two of whom de-
claring on oath or affirmation before the county court of the
proper county that they were present and saw the testator or
‘testatrix sign said will, testament, or codicil in their presence, or
acknowledged the same to be his or her act and deed, and that
they believed the testator or testatrix to be of sound mind and
memory at the time of signing or acknowledging the same, shall
be sufficient proof of the execution of said will.

A will executed out of the state is admitted to probate in the
same manner as a will executed in the state.

Any will probated according to law outside the state, con-
cerning estates in Illinois, is good as wills made and executed
in the state.

Devises or legacies to witnesses, or to their wives or husbands,

13 Rev. Laws Hawaii (1915), §§ 14Tdaho Rev. Codes (1908), 88
3258-3267. 5725-5760.
§ 554 WILLS 484

are void, unless they were otherwise entitled to share in the
estate.

Personal property may be bequeathed by nuncupative wills,
if committed to writing within twenty days after making and
proved by two credible disinterested witnesses present at the
time the will was spoken and published as such. And also it
must be proved by two other witnesses that the will was com-
mitted to writing within ten days after the testator’s death.

A creditor whose debt is secured by the will is a competent
witness.**

§ 554. Indiana.—All persons, except infants and those of
unsound mind, may pass by will real or personal property. This
includes married women. Birth to a man of a child unprovided
for in his will revokes the will. The marriage of a woman re-
vokes her will.

No will except a nuncupative will shall affect any estate, un-
less it be in writing, signed by the testator, or by some one in
his presence, with his consent, and attested and subscribed in
his presence by two or more competent witnesses.

Nuncupative wills attested by two competent witnesses, made
in the testator’s last sickness, reduced to writing within fifteen
days, are valid to the extent of one hundred dollars. Soldiers
in actual military service and mariners at sea may dispose of
personal estate in possession and of wages by nuncupative will.

A devise to a descendant of the testator who dies in the tes-
tator’s lifetime, vests in the surviving descendant of the devisee.

Wills probated in a foreign state or country may be recorded
on production of a duly certified copy in a county where the
testator had estate, and if the court is satisfied, the will is of
the same effect as if originally probated in the state.

Bequests to subscribing witnesses are void unless they were

otherwise entitled to share in the estate.

A wife may elect as to taking under her husband’s will, ar
under statute.”

15TIl, Rev. Stats. (1915-1916), pp. _ 26 Burns’ Ann. Ind. ‘Stat. ae
Sh05-2688* e1hes eh anes. ge grim 3131.8"? |

 

yeh St ©
485 DIGEST OF STATUTES 5 555

§ 555. Iowa—Any person of full age and sound mind
may dispose of his property by will, subject to rights of the sur-
viving spouse, given by law. But if a spouse, parent or child
survive the testator, no devise to a corporation not organized
for pecuniary profit shall be valid in excess of one-fourth the
testator’s estate. 4

After-acquired property may be devised, if the intention is
clear.

Personal property to.the extent of three hundred dollars may
be disposed of by nuncupative will witnessed by two competent
persons. A soldier in actual service, or mariner at sea, may
dispose of all his personal estate, by such nuncupative will.

All other wills must be in writing signed by the testator, or
by some person in his presence and by his express direction
writing his name thereto, and witnessed by two competent per-
sons. A subscribing witness can not receive any benefit from
the will unless there are two additional competent witnesses, or
unless, by law, without a will, he would receive it.

The subsequent birth of a legitimate child before testator’s
death revokes a will, but not the birth of a posthumous child.
Posthumous children take as if the testator had died intestate.

Heirs of a devisee who dies before the testator inherit his
property, unless a contrary intent is manifest.

A will may be deposited with the clerk of the court.

A foreign will already probated is admitted to probate on
production of a copy thereof and of the original record of pro-
bate, authenticated by the clerk of court where probation was
made.’”

§ 556. Kansas.—Any person twenty-one. years old, of
sound mind and memory, may make a will, of real or personal
property. There may be a valid verbal will as to personal
estate, if reduced to writing and subscribed by two disinterested
competent witnesses, within ten days after its speaking. All
other wills, shall be in writing signed at the end thereof by the
testator or some other person in his presence and by his express

17 Towa Code (1907), §§ 3270-3295
§ 557 WILLS 486
direction, and shall be attested and subscribed in the presence
of the testator by two or more competent witnesses, who saw
him subscribe, or heard him acknowledge the same.

A devise to a witness is void unless the will can otherwise be
proved.

A married person can not bequeath away from the other
spouse more than half his or her property, without the consent
in writing of such spouse.

Authenticated copies of wills executed and proved according
to the laws of any other state or territory or foreign country
relative tc any property in Kansas may be admitted to record
in the probate court of any county where any part of such prop-
erty may be situated; and such authenticated copies so recorded
shall have the same validity as wills made in Kansas in con-
formity with the laws thereof.

The subsequent birth of a child to the testator revokes the
will, unless provision was made for such child.

A widow may elect to take under the law of descents, and not
under her husband’s will.

A foreign will can not be contested in this state.

The Rule in Shelley’s Case applies to devises of lands.

An after-acquired property will pass if such was the intention.

Afterborn children take as though there had been no will.’®

§557. Kentucky.—Every person of sound mind and
twenty-one years of age can make a will which will dispose of
any interest he might be entitled to at his or her death, which
would descend to his heirs or pass to his personal representa-
tives, even if acquired after the will was made. This includes
a matried woman, but she can not by will affect her husband’s
interest against his consent.

A will must be in writing and the name of the testator must
be subscribed to it by himself, or some other person in his pres-
ence at his direction. If not entirely written by the testator
the subscription must be made or the will acknowledged by the
testator in the presence of at least two credible witnesses, who

18Kans. Gen. Stats. (1909), §8§ 9'776-9847.
487 DIGEST OF STATUTES § 558

shall subscribe their names to the will in the testator’s presence
and in the presence of each other.

A person under twenty-one years of age may make a will in
pursuance of a power expressly given to that effect and a father
under that age may by will appoint a guardian for his child.

The will of a person domiciled out of the state at the time of
death is valid as to his personalty in the state, if executed ac-
cording to the law of the domicil. ;

The will of a nonresident relative to estate in the state, which
has been probated elsewhere, may be probated in Kentucky by
producing an authenticated copy and a certificate of probate.

Wills must be probated before the county court of the county
of the testator’s residence, or if he had no residence, where his
estate or part of it, is situated.

A soldier in actual service or mariner at sea may dispose of
personal effects by verbal will made ten days before death in
the presence of two competent witnesses, and if reduced to writ-
ing within sixty days after they were spoken.

Marriage of either a man or woman revokes his or her will,
unless made in the exercise of a power of appointment.

Incompetency of an attesting witness does not make the will
void. A creditor of the testator or an executor, is a competent
witness. A will speaks from the testator’s death.

The issue of a devisee or legatee who dies before the testator
take his share.

A pretermitted child takes as though there were no will.

A void or lapsed devise passes as in case of intestacy.”

§558. Louisiana.—As the civil law obtains in Louisiana,
the provisions of its laws respecting wills are very different from
those of other states. All dispositions mortis causa must be
made by last will or testament, of which there are many forms.
Mutual wills are prohibited, and the testator can not commit the
power of disposing to another. There are three classes of wills:
1. Nuncupative or open testament; 2. Mystic or sealed tes-
taments; and 3. Olographic testaments. Either nuncupative or

19 Carroll Ky. Stats. (1915), §§ 4825-4855.
§ 558 WILLS 488

mystic wills must be drawn up in writing, and mere verbal tes-
taments are abolished.

There are nuncupative testaments by public act and under
private signature. Such testaments by public act must be re-
ceived by a notary in the presence of three witnesses residing
in the place where the will is executed, or of five witnesses not
residing in the place, and must be dictated by the testator, and
written by the notary as it is dictated, then be read to the tes-
tator in presence of the witnesses. Express mention at one time
made of the whole, observing that all those formalities must be
fulfilled is without interruption and without turning aside to
other acts.

The testament must be signed by the testator if he declares
that he does not know how or is not able to sign, express men-
tion of his declaration and of the cause which hinders him to
sign must be made in the act. The testament must also be
signed by the witnesses or at least one of them for all if the others
can not write.

A nuncupative testament under private signature must be
written by the testator himself, or by any other person from his
dictation, or even by one of the witnesses, in the presence of
five witnesses residing in the place where the will is received or
of seven witnesses residing out of that place; or it will suffice
if in the presence of the same number of witnesses the testator
present the paper on which he has written his testament or caused
it to be written out of their presence, and declare to them that that
paper contains his last will and testament. In either case the
testament must be read by the testator to the witnesses, or. by
one of the witnesses to the rest in the presence of the testator. It
must be signed by the testator, if he knows how or is able to
sign, and by the witnesses, or at least by two of them in case the
others know not how to sign, and those of the witnesses who do
not know how to sign must affix their mark.

In the country it suffices for the validity of the nuncupative
testaments under private signature if the testament be passed in
the presence of three witnesses residing in the place where the
testament is received, or of five witnesses residing out of that
489 DIGEST OF STATUTES § 558

place, provided that in this case a greater number of witnesses
can not be had.

The mystic, secret or closed testament is made in the following
manner: The testator must sign his dispositions, whether he has
written them himself or has caused them to be written by an-
other person. The paper containing those dispositions, or the
paper serving as their envelope, must be closed and sealed. The
testator shall present it, thus closed and sealed, to the notary
and to three witnesses, or he shall cause it to be closed and sealed
in their presence. ‘Then he shall declare to the notary, in the
presence of the witnesses, that the paper contains his testament,
written by himself, or by another.by his direction, and signed
by him, the testator. The notary shall then draw up the act
of superscription which shall be written on that paper or the
sheet which serves as its envelope, and that act shall be signed
by the testator, and by the notary and the witnesses.

All that is above prescribed shall be done without interruption
or turning aside to other acts; and in case that the testator, by
reason of any hindrance which has happened since the signing
of the testament, can not sign the act of superscription, mention
shall be made of the declaration made by him thereof, without
its being necessary in that case to increase the number of wit-
nesses.

Those who know not how or are not able to write or sign
their names can not make dispositions in the form of a mystic
testament. If any witness to the act of superscription knows not
how to sign, express mention shall be made thereof.

The following persons are absolutely incapable of being wit-
nesses to testaments: 1. Women of whatever age to the testa-
ments of their husbands. 2. Children who have. not attained
the age of sixteen years complete. 3. Persons insane, deaf,
dumb or blind. 4. Persons whom the criminal laws declare in-
capable of exercising civil functions. Neither can testaments be
witnessed by those who are constituted heirs or named legatees,
under whatsoever title it may be, provided that this qualification
does not apply to the mystic testament.

The olographic testament is that which is written by the tes-
§ 558 WILLS 490

tator himself. In order to be valid it must be entirely written,
dated and signed by the testator without its being subject to any
other formality, and may be made anywhere, even out of the
state. A testament intended to be in one form may be valid
in another.

Witnesses must reside in the parish where the testament is
executed, when it is required that they reside in the place. The
minor above the age of sixteen can dispose of property by dona-
tion mortis causa.

Testaments made in other states or countries take effect in
this state, provided they are clothed with all the formalities pre-
scribed for the validity of testaments in the place where they are
made.

Soldiers’ wills may be received by a commissioned officer be-
fore two witnesses or if sick or wounded, before a physician or
surgeon attending him, assisted by two witnesses. Such wills
need only be reduced to writing and signed by the testator or the
person receiving them and by the witnesses. Such testament
is null six months after the testator’s return to a place where
he can use the ordinary forms.

The captain or master of a vessel in the presence of three wit-
nesses may receive testaments at sea, the only formality being
that they should be reduced to writing, signed by the testator,
the receiver, and the witnesses, but such testament can pass
nothing to any person employed on the vessel, unless a relative
of the testator. It is not valid unless the testator die at sea or
within three months after he landed in a place where he can
use the ordinary forms.

Donations inter vivos or mortis causa can not exceed two-
thirds of the property of the disposer, if he leaves at his decease,
a legitimate child, one-half if he leaves two children; and one-
third if he leaves three or a greater number. Under the name
of children are included descendants of whatever degree, it being
understood that they are only counted for the child they repre-
sent. Donations inter vivos or causa mortis can not exceed two-
thirds of the property if the disposer, having no children, leave
a father, mother, or both.
491 DIGEST OF STATUTES § 558

A disherison must be made by name expressly and for a just
cause recognized by law. The following ten causes for the dis-
herison of children are recognized: 1. If the child has raised
his or her hand to strike the parent, or if he or she has actually
struck the parent; but a mere threat is not sufficient. 2. If the
child has been guilty, toward a parent, of cruelty, of a crime or
grievous injury. 3. If the child has attempted to take the life
of either parent. 4. If the child has accused a parent of any
capital crime, except, however, that of high treason. 5. If the
child has refused sustenance to a parent, having means to afford
it. 6. If the child has neglected to take care of a parent become
insane, 7. If the child refused to ransom them, when detained
in captivity. 8. If he used any act of violence or coercion to
hinder a parent from making a will. 9. If the child has refused
to become security for a parent, having the means in order to
take him out of prison. 10. If the son or daughter, being a
minor, marries without the consent of his or her parents. As-
cendants other than parents may disinherit their descendants
for the first nine causes above enumerated, when the acts there
mentioned have been committed toward them instead of toward
their parents.

Legitimate children dying without issue and leaving a parent
can not disinherit him or her unless for the following seven
causes: 1. Ifthe parent has accused the child of a capital crime,
except, however, the crime of high treason. 2. If the parent
has attempted to take the child’s life. 3. If the parent has, by
any violence or force, hindered the child from making a will. 4.
If the parent has refused sustenance to the child in necessity,
having the means of affording it. 5. If the parent has neglected
to take care of the child while in a state of insanity. 6. If the
parent has neglected to ransom the child in captivity. 7. If the
father or mother have attempted the life, the one or the other,
in which case the child or descendant who makes a will may dis-
inherit the one who has attempted the life of the other. A disin-
herison td be valid must be made in one of the forms prescribed
for testaments, and the testator must express for what reasons
he disinherits the heir in question. And the other heirs of the
§ 559 WILLS 492

testator are, moreover, obliged to prove the facts on which the
disinherison is founded.

A testament is annulled by operation of law by the birth of
legitimate children prior to its date.?°

§ 559. Maine—A person of sound mind, twenty-one
years old may dispose of his real and personal estate by will, in
writing, signed by him or by some person for him at his request
and subscribed in his presence by three credible witnesses not
beneficially interested thereunder.

Subsequently acquired real estate passes if such was the tes-
tator’s intention, and a devise of land conveys all the estate of
the testator.

A nuncupative will may be made during the last sickness
of the testator, if made at home, unless he is taken sick
suddenly away from home. Such will is effective only as to
personal property under $300 in value, unless proved by the oath
of three witnesses who were present at its making and requested
by the testator to bear witness to his will. The nuncupative will
must be proved within six months, unless reduced to writing
within six days after they were spoken. Soldiers in service or
mariners at sea, may dispose of personal estate and wages, by
nuncupative will, without regard to the place of its making.

An omitted or posthumous child takes as though there were
no will.

Wills executed and proved in another state according to its
laws, may be proved in Maine, and one proved in another state
may be allowed in Maine by producing an authenticated copy
of the will and probate, and filing and recording after hearing.”*

§ 560. Maryland.—No will can create a perpetuity.

No will will pass real estate unless the testator was at the
time of acknogledging or executing same of sound and disposing
mind and capable of executing a valid deed or contract, and if
a male, aged twenty-one, if a female, aged eighteen. By the com-

20 Merrick’s Rev. Civ. Code, La. 21 Maine Rev. Stat. (1903), ch. 76,

1913, ch. 6, arts. 1570-1624; ch. 3, §§ 3-20, ch. 66, § 13.
arts. 1493-1495.
493 DIGEST OF STATUTES § 561

mon law males over fourteen and females over twelve years of
age may make valid wills of personal property. Wills of real
and of personal property must be in writing, signed by the tes-
tator or by some one for him, in his presence and by his express
direction, and attested and subscribed in his presence by two or
more credible witnesses,

Although no nuncupative will is valid, a soldier in active serv-
ice or mariner at sea, may by verbal will before witnesses, dis-
pose of his wages, movables and personal property.

A devise or legacy shall not fail because of the death of the
legatee in the testator’s lifetime, but shall pass as if the devisee
or legatee survived the testator.

A will made out of the state will be held valid in Maryland,
if made according to the forms required by the law of the place
where made, or by the law of the place where the testator was
domiciled when made, or according to the forms required by
the law of Maryland.

A copy certified as prescribed by law of the record of a will
recorded in a foreign country is good evidence to prove such will
in Maryland.” '

§ 561. Massachusetts.—A will may be made by any per-
son of sound mind of the legal age of twenty-one years. Wills
must be in writing, signed by the testator or by some one in his
presence and by his express direction and must be attested and
subscribed in the testator’s presence by three or more competent
witnesses. A married woman may make a valid will. Soldiers
in service or mariners at sea may dispose of personal property
by a nuncupative will.

Marriage acts as a revocation of a will, unless it appears from
the will that it was made in contemplation of marriage, or unless
it was made in the exercise of a power of appointment.

A testator may keep a will in his custody or deposit it in that
of the probate court. A person other than the register of pro-
bate, who has custody of a will, must produce it within thirty

. 22 Bagby. Ann. Code, Md.- (1911); art. 93, -§8§ 316-343,
ey
§ 562 WILLS 494

days from notice of the testator’s death, and one who conceals
or retains a will may be examined and imprisoned.

Devises to witnesses or their husbands or wives are void unless
there are three other competent witnesses.

The surviving husband or widow may elect to take under the
statute instead of under the will.

Pretermitted or posthumous children take as if there were
no will.

The issue of a legatee who is a child or relative of the testator
and dies before the testator, take his share.

A will which is made out of the commonwealth, valid accord-
ing to the laws of the state or country in which it was made,
may be proved and allowed in Massachusetts, and shall have the
same effect as if it had been executed according to Massachusetts
laws.

A foreign will may be proved by producing an authenticated
copy and a certificate of probate.”

§ 562. Michigan—Any person of sound mind, over
twenty-one, may make a will disposing of lands or personalty,
and every devise conveys all the testator’s interest, including
after-acquired lands, unless a contrary intention appears.

All wills made in the state must be in writing, signed by the
testator, or by some person in his presence and by his express
direction, and attested and subscribed in his presence by two or
more competent witnesses.

There is an exception as to nuncupative wills which are valid
where the value of the estate does not exceed $300, or if made by
a soldier in service or mariner on shipboard, relative to wages
and personal property.

Bequests to subscribing witnesses are void unless there are
two other competent witnesses, or unless such witness was en-
titled to a share by law, and a creditor secured by will is a com-
petent witness.

The provisions as to custody of a will are very similar to

232 Rev. Laws of Mass., tit. 2, ch. 135, 8§ 1, 6, 9, 5, 10, 14, 15, ch. 136,
§ 10.
495 DIGEST OF STATUTES § 563

those of Massachusetts. A will may be placed in the custody
of the judge of probate. :

Foreign wills may be proved by filing an exemplified copy of
the will and the record of probate.

Afterborn children take as if the parent had died intestate,
their share first being taken from estate undisposed of by will, if
any, then proportionally from all legatees and devisees.

The widow may choose between dower and the provision for
her in the will.

A foreign will, made where probate is not required, may be
proved in Michigan by producing the original or a full and com-
plete copy.

A will executed without the state, in the mode prescribed by
law, is valid in Michigan if in writing and signed by the testator.
The issue of a legatee, who is a child or other relation and dies
before the testator, takes his share.”*

§ 563. Minnesota—Every person of full age (males
twenty-one years, females eighteen years) and sound mind may
make a will, including married women. Nuncupative wills are
valid only as to personal estate, when made by a soldier in service,
or mariner at sea. Other wills must be in writing, signed by the
testator or by some person in his presence by his express direc-
tion, and must be attested and subscribed in his presence by two
or more competent witnesses. A creditor whose debt is secured
by the will is a competent witness.

A legacy to a witness is void, unless there are two other com-
petent subscribing witnesses who are not beneficiaries or unless
the witness was entitled to share in the estate in absence of a
will.

Marriage of a testator revokes a will, and divorce of the
testator revokes provisions in favor of the testator’s spouse.

Afterborn children take as if the testator had died intestate,
first from an undisposed portion of the estate, then from the
shares of all-devisees and legatees proportionally.

After-acquired property will pass by the will.

24Howell’s Ann. Mich Stat, §§ 10975-11015, 11025,
§ 564 WILLS 496

A will may be deposited with the judge of the county where
‘the testator lives.

The surviving issue of a child or relative of the testator who
was a devisee or legatee and died before the testator, take the
parent’s share.

A will made out of the state valid according to the laws of
the state or country in which it was made, or of the testator’s
domicil, if in writing and signed by the testator, may be proved
and allowed in Michigan, and have the same effect as if it had
been executed according to the laws of Michigan.

Every will proved outside of the state in accordance with
law, may be allowed, filed and recorded in any county in this
state where the testator left property. A duly authenticated
copy of the will and of its probate must be presented to the
court.

A surviving spouse may elect between the provisions of one
will and the statutory provisions for such spouse.

Nuncupative wills must have two credible disinterested wit-
nesses and must have been put in writing within thirty days
after making.”

§ 564. Mississippi—Every person of the age of twenty-
one years, male or female, married or unmarried, has the power
by will in writing to dispose of real and personal property, so
as such will be signed by the testator or testatrix, or by some
other person in his or her presence and by his or her express
direction; and, if not wholly written and subscribed by himself
or herself shall be attested by two or more credible witnesses
in the presence of the testator or testatrix.

A will is void if the testator had no child when it was made,
and a child is later born to him. If the testator had children
when the will was made, later-born children take as if he had
died intestate, devisees and legatees contributing proportionally.

Nuncupative wills are valid only when made in last sickness,
at home, except where deceased was taken sick away from home,
and died before return, nor are they valid to bequeath a value

25 Gen, Stats. Minn. (1913),: §§°7250-7275; 7282)¢ iA. 2 Merde
497 DIGEST OF STATUTES § 565

exceeding one hundred dollars unless it is proved by two wit-
nesses that testator called them to bear witness to his will. Such
will can not be proved after six months from making, unless
reduced to writing within six days from speaking.

Soldiers in actual service or mariners at seat, may dispose of
goods and chattels in the manner permitted by common law.

A wife or husband may renounce the provisions of the spouse’s
will and take under the law.

Any provision in a will for a husband or wife is in bar of a
statutory share.

The statutes of mortmain are in force.

One who kills another shall not take under his will.

The issue of a child or descendant who dies before the testator
take any gifts made to him in the will.

Authenticated copies of foreign wills proved according to the
laws of any foreign jurisdiction, may be admitted to probate in
Mississippi, but are subject to contest as the original might have
been.”°

§ 565. Missouri—lLEvery male person, twenty-one years
of age and upward, of sound mind, may by last will, devise all
his estate, real, personal and mixed, and all interest therein,
saving the widow her dower. And every male person over’ the
age of eighteen years, and of sound mind, may, by last will,
bequeath all his personal estate, saving the widow her dower.

Any married or unmarried woman, of eighteen years of age
and upward, of sound mind, may devise her land, tenements, or
any descendable interests therein, or bequeath her personal prop-
erty held in her own right, in possession or expectancy, by her
last will and testament subject to the rights of the husband, if
any, to his curtesy therein.

Every will shall be in writing, signed by the testator, or by
some person, by his direction, in his presence; and shall be at-
tested by two or more competent witnesses subscribing their
names to the will in the presence of the testator, and in the pres-
ence of each other.

26 Miss. Code (1906), $8 5078-5092, 2004.

32—Tuomp. WILLs.
§ 566 WILLS 498

The husband’s rights in the deceased wife’s property are the
same as those of a widow in the deceased husband’s property.

A will executed by an unmarried woman shall be deemed re-
voked by her subsequent marriage. If a testator after making
a will disposing of his whole estate, marries and dies leaving is-
sue of such marriage unprovided for, such will shall be deemed
revoked.

A testator is deemed to have died intestate as to children not
named in the will.

Where any estate shall be devised to any child or grandchild
or other relative of the testator and such devisee shall die before
the testator leaving lineal descendants, such descendants shall
take the estate, real or personal, as such devisee would have
done in case he had survived the testator.

Nuncupative wills are not good where the estate exceeds two
hundred dollars, or unless proved by two witnesses, and that the
testator, in his last sickness, at his home, or taken sick away
from home, called some person to witness the will. Proof of
such will must be given within six months after speaking, or the
substance reduced to writing within thirty days.

Wills of mariners and soldiers, as to wages and personal prop-
erty, are governed by the common law.

A legacy to an attesting witness is void unless there are suf-
ficient other witnesses.

A devise omitting the words “heirs and assigns” or “heirs and
assigns forever,” containing no words by which it appears a life
estate was intended, passes a fee simple.?”

§ 566. Montana.—Same as California except no provision
as to married woman and, “a will of real or personal property,
or both, or a revocation thereof, made out of this state by a
person not having his domicil in this state, is as valid when
executed according to the law of the place in which the same
was made, or in which the testator was at the time domiciled, as
if it were made in this state, and according to the provisions of
this chapter.’”’®

27 Rev. Stat. Mo. (1909), §8 535-584. 28 Rev. Code Mont. (1907), 8§
4723-4762.
499 DIGEST OF STATUTES § 567,

§ 567. Nebraska.—Every person of full age (males,
twenty-one; unmarried females, eighteen; married females, six-
teen) may dispose of real and personal property by will.

The will must be in writing signed by the testator, or by some
person in his presence and by his express direction, attested and
subscribed in the presence of the testator by two or more com-
petent witnesses.

Nuncupative wills are not good, where the value of the estate
exceeds one hundred fifty dollars, and unless proved by three
witnesses present at the making, and that the testator called them
to bear witness it was his will, and that it was made during the
testator’s last sickness at his home, or while taken sick away
from home. Unless reduced to writing within six days after
speaking, proof of such wills will not be allowed after six months.
These rules do not apply to wills by soldiers in service and mari-
ners on ships, disposing of wages and personal estate.

Bequests to subscribing witnesses are void, unless there are
two others competent, or such witness would take by law without
a will.

A will may be deposited with the probate judge.

After-acquired estate passes by will if such appears to have
been the intention.

Afterborn children take as if the testator had died intestate.

All wills duly proved and allowed in a foreign state or country,
according to law, may be filed in the probate court of any county
where the testator has estate on which the will may operate, by
producing a duly authenticated copy of the will and its probate.”

§ 568. Nevada.—Every person over eighteen years of age,
of sound mind, may dispose of his or her estate, real or personal,
by will. Married women may dispose of their separate property
as though under no disability.

No will except a holographic or nuncupative will is valid un-
less in writing “signed by the testator and sealed with his seal,
or by some person in his presence and by his express direction,

29 Cobbey’s Ann. Stats. Neb. (1911), §§ 4988-5014.
§ 569 - WILLS 500

and attested by at least two competent witnesses subscribing
their names to the will in the presence of the testator.”’

A nuncupative or verbal will is valid where the estate be-
queathed does not exceed in value one thousand dollars, when
proved by the testimony of two witnesses who were present at
the making thereof, and the testator at the making of the same
bid some one present bear witness that such was his will, at the
time of his last sickness. It must be proved not more than three
months after it is made. .

Provisions in favor of subscribing witnesses are void unless
there are sufficient other witnesses.

Marriage of an unmarried woman revokes her will previously
made, likewise marriage of a man, unless provision is made for
his wife.

Afterborn or unintentionally omitted children take as if no
will had been made.

After-acquired property passes if such was the testator’s in-
tention.

Property may be disposed of and taken under holographic wills.
Such wills shall be valid and have full effect for the purpose for
which they are intended. A holographic will is subject to no
other form than that it be written entirely by the hand of the
testator himself. It may be made in or out of this state, and
need not be witnessed, and may be proved in the same manner as
other private writings are proved.

“All wills which shall have been duly proved and allowed in
any other of the United States, or any territory thereof, or in
any foreign country or state, may be admitted to probate by the
district court of any county in which the deceased shall have
left any estate, provided it has been executed in conformity
with the laws of the place where made,” and proceedings shall
be had as in case of an original will for probate, with like force
and effect.??

§ 569. New Hampshire.—Every person of sane mind aged
twenty-one may dispose by will of real and personal property.
This includes a married woman.

30 Rev. Laws Nev. (1912), §3 5878, 6202-6222.
501 DIGEST OF STATUTES § 570

Wills must be made in writing, signed by the testator or some
person in his presence and by his express direction, and attested
and subscribed in his presence by three or more credible wit-
nesses. A will not under seal is as effectual.as though sealed.

A legacy to a witness is void, unless there are three other
subscribing witnesses, but a gift to a corporation of which wit-
nesses are members, does not make the will void or disqualify
the witnesses.

Aiterborn or omitted children take as if there were no will.

The surviving spottse may waive provisions in the deceased
spouse’s will, and take under the statute. A soldier in actual
service, or a seaman at sea, may dispose of movables or personal
estate as at common law.

A will may be deposited for safe-keeping with the register
of probate.

Nuncupative wills shall not be ‘“‘valid where the personal estate
bequeathed exceeds in value one hundred dollars, unless declared
in the presence of three witnesses who are requested by the tes-
tator to bear witness thereto, in his last sickness and in his usual
dwelling; except when he was taken sick from home and died.
before his return, nor unless a memorandum thereof was reduced
to writing within six days, and presented to the probate court
within six months after the making.

A will made out of the state, valid according to the laws of the
state or country where it was executed, may be proved and al-
lowed in New Hampshire, and shall be as effective as it would
have been if executed according to New Hampshire laws.

No donatio causa mortis shall be valid unless the actual de-
livery of the property to the donee be proved by two indifferent
witnesses upon proceedings in the probate court to establish,
such gift commenced within sixty days after the death of the
donor.**

§ 570. New Jersey.—A will by a woman covert, person
under twenty-one, or idiot, lunatic, or person of unsound mind,
is not good.

31Pub. Stats. N. H. (1901), ch. 186, 8§ 1-22.
*§ 571 WILLS 502

A witness to a will can not take as devisee, except to pay
debts, but may prove the will.

Estates pur autre vie may be devised.

A nuncupative will is not valid except where the estate does
not exceed eighty dollars, unless proved by three witnesses pres-
ent at the making, and unless the testator asked persons present
to bear witness.to the will, and unless made in time of last sick-
ness, at home, or taken sick while away from home, dying
before returning, and unless reduced to writing within six days
from making, such will must be proved within six months. These
rules do not apply to soldiers in service or mariners at sea.

A written will can not be altered by an oral will.

Afterborn children make void a will made when the testator
had no children. Where a testator had children when the will
was made, afterborn children take as though he died intestate.

All wills except nuncupative wills must be in writing signed by
the testator, and the signature shall be made by the testator, or
the making thereof acknowledged by him, and such writing de-
clared to be his last will, in the presence of two witnesses present
at the same time, who shall subscribe their names thereto, as wit-
nesses, in the presence of the testator.

Unless intended clearly to convey an estate for life, all devises
in which the words “heirs and assigns” are omitted, pass an
estate in fee simple.

A foreign will may be admitted to probate, by presenting a
copy of the will, or a record of it, and the certificate of probate,
all properly attested, to the surrogate, if executed in conformity
with New Jersey law, and shall have the same force as if executed
in New Jersey.”

* §571. New Mexico.—Any person of the age of twenty-
one years or upward, in sound mind, may make a will, disposing
of all property save what is sufficient to pay his debts, and
what is given by law as privileged property to his wife or family.
An agent may be empowered to make a will.
A verbal will may be valid.

32Comp. Stats. N. J. (1910), pp. 5862-5871, §§ 1-27, p. 3820, 8 23,
503 DIGEST OF STATUTES § 572

A will in writing should be signed by the testator, who, if
unable or not knowing how to sign, shall request some reliable
person to sign for him, and attested by two or more able and
qualified witnesses, who must be present and see the testator
sign the will, or some one sign it for him at his request as and
for his last will and testament, and must sign as witnesses at
his request in his presence and in the presence of each other.

Two witnesses to a will are sufficient but in case of a verbal
will there must also be two witnesses to testify as to the testator’s
soundness of mind.

Heirs or beneficiaries can not be witnesses to a will.

Charitable bequests must be in writing.

Children not named or after-born take as if no itt had been
made.

“Any will executed in any foreign jurisdiction, sufficient to
convey the title of real estate in such jurisdiction, shall be valid
in this state to the same extent as in the jurisdiction where
made.”

§ 572. New York.—All persons, except idiots, persons of
unsound mind and infants, may devise real estate, and males
of the age of eighteen or upward, and females of the age of
sixteen or upward, if of sound mind, may bequeath personal
estate by written wills.

Only soldiers in service or mariners at sea may bequeath per-
sonal property by nuncupative will.

Real property can not be devised to an alien, nor to a corpora-
tion unless it is SaLonce by charter or statute, to take by
devise.

No person having a husband, wife, child, or parent, can will
more than half his property to a religious or charitable society
or corporation.

Every last will and testament shall be executed and attested
in the following manner: “1. It shall be subscribed by the tes-
tator at the end of the will. 2. Such subscription shall be made
by the testator in the presence of each of the attesting witnesses,

33N. Mex. Stats. Ann. (1915), §§ 5857-5870.
§ 572 WILLS 504

or shall be acknowledged by him, to have been so made, to each
of the attesting witnesses. 3, The testator, at the time of mak-
ing such subscription, or at the time of acknowledging the same,
shall declare the instrument so subscribed to be his last will and
testament. 4. There shall be at least two attesting witnesses,
each of whom shall sign his name as a witness, at the end of the
will, at the request of the testator.”

“The witnesses to any will shall write opposite to their names
their respective places of residence; and every person :who shall
sign the testator’s name to any will, by his direction, shall write
his own name as a witness to the will. Whoever shall neglect
to comply with either of these provisions shall forfeit fifty
dollars, to be recovered by any person interested in the property
devised or bequeathed who will sue for the same. Such omission
shall not affect the validity of any will; nor shall any person
liable to the penalty aforesaid be excused or incapacitated on
that account from testifying respecting the execution of such
will.”

Devises or bequests to subscribing witnesses are void where
the will can not be proved without them, unless such witness
would have been entitled by law to share in the testator’s estate.

A will is revoked by marriage of the testator and the birth of
issue, or by the marriage of an unmarried female testatrix.

“A will of real or personal property, executed as prescribed
by the laws of the state, or a will of personal property executed
without the state and within the United States, the Dominion
of Canada, or the Kingdom of Great Britain and Ireland, as
prescribed by the laws of the state or country where it is or was
executed, or a will of personal property, executed by a person
not a resident of the state, according to the laws of the testator’s
residence, may be proved as prescribed in this article. The right
to have a will admitted to probate, the validity of the execution
thereof, of the validity or construction of any provision con-
tained therein, is not affected by a change of the testator’s resi-
dence made since the execution of the will.”

A foreign will may be proved by filing a duly authenticated
505 DIGEST OF STATUTES § 573

copy of the will and the proof with the surrogate of the county
in New York where property disposed of by the will is situated.

Wills may be deposited with the clerk of every county, the
register of deeds in the city and county of New York, and the
surrogate of every county.

A testator, who is a citizen of the United States, wherever
resident, may declare that he elects his disposition by his will
to be construed and regulated by the laws of New York.**

§ 573. North Carolina—No person under the age of
twenty-one is capable of disposing of property by will. Married
women may make wills.

“No last will or testament shall be good or sufficient in law
to convey or give any estate, real or personal, unless such last
will shall have been written in the testator’s lifetime and signed
by him, or by some other person in his presence and by his
direction, and subscribed in his presence by two witnesses at
least. * * * Or, unless such last will and testament be
found among the valuable papers and effects of any deceased
person, or shall have been lodged in the hands of any person
for safe keeping, and the same shall be in the handwriting of
such deceased person with his name subscribed thereto, or in-
serted in some part of such will, and if such handwriting shall
be proved by three credible witnesses, who verily believe such
will and every part thereof is in the handwriting of the person
whose will it appears to be, then such will shall be sufficient to
give and convey real and personal estate.”

Wills, unless made in exercise of a power of appointment, are
revoked by the testator’s subsequent marriage.

“No person, on account of being an executor of a will, shall be
incompetent to be admitted as a witness to prove the execution
of such will, or to prove the validity or invalidity thereof. If
any person shall attest the execution of any will, to whom or
to whose wife or husband any beneficial devise, estate, interest,
legacy or appointment of or affecting any real or personal estate

34Consol. Laws N. Y. (1909), D. ch. 244,
E. Law, ch. 18, $§ 1048; Acts 1911,
§ 574 WILLS 506

shall be thereby given or made, such devise, estate, interest, leg-
acy or appointment shall, so far as only concerns such person
attesting the execution of such will, or the wife or husband of
such person, or any person claiming under such person or wife
or husband, be void; and such person so attesting shall be ad-
mitted as a witness to prove the execution of such will, or the
validity or invalidity thereof.” _

Any nuncupative wills must be proved by at least two wit-
nesses who were present when it was made, and who state that
they were especially requested to bear witness thereto by the
testator himself. It must also be proved that such will was made
in the testator’s last sickness in his own house, or where he had
previously resided for at least ten days, unless he die on a journey
or from home. No nuncupative will shall be proved by the
witnesses after six months from the making thereof, unless it
was put in writing within ten days from such making.

After-born children, unprovided for, take as if there had been
no will.

A foreign will may be proved by exemplified copy, but will
not pass real estate in North Carolina unless executed in con-
formity with its laws.®°

§ 574. North Dakota.—Practically same as California ex-
cept, no corporation can take by will, unless expressly authorized
by statute, and no restrictions on devise for charitable use.

After-acquired property passes by will.

Foreign wills may be probated by filing in county court the
duly authenticated copies of the will and the probate, and they
are valid in North Dakota, if executed either according to the
laws of the place where made, of the testator’s domicil, or of
North Dakota.*®

§575. Ohio.—Males aged twenty-one, females aged
eighteen, of sound mind and memory, under no restraint, may
make wills. All except nuncupative wills must be in writing,
but may be handwritten or typewritten, and must be signed

35 Pell’s Rev. N. Car. Stats. (1908), 36 Comp. Laws N. Dak. (1913), §§
8§ 3111-3146. 5640-5684, 8672,
507, DIGEST OF STATUTES § 575
at the end by the party making or some some other person in
his presence and by his express direction, and attested and sub-
scribed in the testator’s presence, by two or more competent
witnesses, who saw him subscribe or heard him acknowledge it.

A devise or bequest to a witness, without whose testimony
the will can not be proved, is void, unless he was by law entitled
to share in the estate.

A widow or widower may elect to take under the will of a
deceased consort or take under the provisions made by law for
her or him.

The will of an unmarried woman is not revoked by her mar-
riage.

The birth to a testator, who had-no children, of a child un-
provided for revokes the will.

Subsequently acquired property passes if such was the tes-
tator’s intention,

A bequest to charity is void, unless executed at least one year
prior to the testator’s death.

A verbal will, made in the last sickness, is valid as to personal
estate, if reduced to writing, and subscribed by two competent
disinterested witnesses within ten days after the speaking of the
testamentary words; if it is also proved by such witnesses the tes-
tator was of sound mind and memory and not under any re-
straint, and called upon some person present to bear testimony to
said deposition as his will, such a will must be offered for pro-
bate within six months after his death. A duly executed written
will can not be revoked by a nuncupative will.

Authenticated copies of wills, executed and proved according
to the laws of any state or territory of the United States rela-
tive to any property in the state of Ohio, may be admitted to
record in the probate court of a county where a part of such
property is situated. Such authenticated copies so recorded
shall have the same validity in law as wills duly made in Ohio,
in conformity with the laws thereof, are declared to have.

Foreign wills can not be contested in Ohio.”

37 Ohio Gen. Code (1910), §§ 10503, 10504, 10515, 10536, 10560, 10561,
10566, 10577, 10579, 10601.
§ 576 WILLS 508

§ 576. Oklahoma.—Same as North Dakota, except no
married person can bequeath more than two-thirds of his or her
property away from the other spouse, and no person who is
incapable of alienating, conveying or incumbering real property
while living may bequeath the same by will.°*

§ 577. Oregon.—“‘Every person of twenty-one years of
age and upward, of sound mind, may, by last will, devise all
his estate, real and personal, saving to the widow her dower.
Every person over the age of eighteen years, of sound mind,
may by last will, dispose of his goods and chattels. A married
woman may, by will, dispose of any real estate held in her own
right, subject to any rights which her husband .may have as
tenant by the curtesy. Every will shall be in writing, signed
by the testator, or by some other person under his direction, in
his presence, and shall be attested by two or more competent
witnesses, subscribing their names to the will in the presence
of the testator.”

“Every person who shall sign the testator’s name to any will
by his direction shall subscribe his own name as a witness to
such will, and state that he subscribed the testator’s name at his
request.”

“Tf, after making a will disposing of the whole estate of the
testator, such testator shall marry and die, leaving issue by such
marriage living at the time of his death, or shall leave issue
of such marriage born to him after his death, such will shali be
deemed revoked, unless provisions shall have been made for
such issue by some settlement, or unless such issue shall be pro-
vided for in the will, and no evidence shall be received to rebut
the presumption of such revocation. A will made by an unmar-
ried person shall be deemed revoked by subsequent marriage.”

Children unprovided for take as though no will had been
made.

A mariner at sea or soldier in service may dispose of wages
or personal property as at common law.

“No proof shall be received of any nuncupative will unless

88 Okla, Rev. Laws (1910), 8§ 8317-8337,
509 DIGEST OF STATUTES § 577

it be offered within six months after speaking the testamentary
words, nor unless the words, or the substance thereof, were re-
duced to writing within thirty days after they were spoken.” “No
probate of any nuncupative will shall be granted for fourteen
days after the death of the testator; nor shall any nuncupative
will be at any time proved unless the testamentary words, or
the substance thereof, be first committed to writing, and a cita-
tion issued, accompanied by a copy thereof, to call the widow
or next of kin of the deceased, that they may contest the will
if they think proper.” “Any person not an inhabitant, but own-_.
ing property, real or personal, in this state, may. devise or be-
queath such property by last will, executed and proved (if real
estate be devised) according to the laws of this state, or (if per-
sonal estate be bequeathed) according to the laws of this state
or of the country, state or territory in which the will may be
executed.”

If such will be probated in a foreign jurisdiction, duly certi-
fied copies of such will and the probate may be recorded, and be
of the same effect as wills executed in Oregon, and if probate is
not required in a foreign jurisdiction a will there made may
be probated in Oregon. A foreign will may be contested in
Oregon.

A subscribing witness can not take unless there are sufficient
other witnesses or he is entitled to a share by law. <A legatee
who has rejected a legacy or has been paid, is a competent wit-
ness.*?

§ 578. Pennsylvania.—Every person of sound mind over
twenty-one years of age may make a will of realty or personalty.

A will must be in writing, and unless the person making the
same shall be prevented by the extremity of his last sickness,
must be signed by him at the end thereof, or by some person
in his presence and by his express direction, and in all cases shall
be proved by the oaths or affirmations of two or more competent
witnesses.

It is not necessary that the will be proved by subscribing wit-

39Lord’s Ore. Laws, §§ 7316-7341.
§ 578 WILLS 510

nesses, and acknowledgment by the testator before subscribing
witnesses is not necessary except where there is a devise or
bequest to a charitable or religious use, when the will must be
attested by two credible and disinterested witnesses, and executed
at least one calendar month before the death of the testator.

The signature may be made by mark.

Personal estate may be bequeathed by nuncupative wills, if
made during the last sickness of the testator in the house of
his habitation, or where he has resided for the space of ten days
or more next before the making of such will; except where the
testator was surprised by sickness, being from his own house,
and shall die before returning. If a value of more than one
hundred dollars is bequeathed by such will, it must be proved
by some of the persons present, that he requested some of them
to bear witness that such was his will, or to that effect, and the
requisites of the will must be proved by two or more witnesses
who were present at the making. Mariners at sea, or soldiers
in actual military service, may dispose of movables, wages, and
personal estate by a nuncupative will.

After-acquired realty passes by a will unless a contrary inten-
tion appears.

Words of inheritance are not necessary to pass the testator’s
entire estate..

The birth of children after the execution of wills, revokes
the will pro tanto.

' Marriage of a single woman revokes her will.

A will speaks as of the date of the death of the testator.

Lapsed and void devises go to the residuary devisees, and
not by the intestate law.

A will may be written in pencil or typewritten. A will and
codicil may be written on separate pieces of paper.

A surviving husband or wife may elect to take under or con-
trary to the wills of decedents.

Any person competent to make a will may by testament ap-
point a guardian for his or her minor child.

Wills of personal property made by persons whose domicil
is out of the state may be executed as required by the law of
511 DIGEST OF STATUTES § 579

the state of their domicil. All wills offered for probate in
Pennsylvania require the same evidence, no matter where exe-
cuted; and should be proved and registered in the office of the
register of wills in the country where the testator had his domicil.
Copies of wills duly proved in any other state or country may
be registered in Pennsylvania if duly authenticated, and letters
testamentary or of administration granted thereon, as if the orig-
inal had been produced; also there must be produced and filed
a copy of the record of the probate of the original and the letters
granted thereon, attested by the person having power to receive
the probate of such original in the place where it was proved,
with his seal of office, if any, annexed, together with the certifi-
cate of the chief judge or presiding magistrate of the state,
country, county or district where the original was proved, that
the same appears to have been duly proved and to be of force,
and that the attestation is in due form.*°

$579. Philippine Islands.—Every person, including mar-
ried women, of age and sound mind may make a will of real
and personal property, except that no person can by will deprive
a husband, wife or heir, of his interest in an estate which ap-
pertains by law.

After-acquired real estate may pass by will, if such was the
intention.

No will is valid unless it be in writing and signed by the tes-
tator, or by the testator’s name written by some other person
in his presence and by his express direction, and attested and sub-
scribed by three.or more credible witnesses in the presence of
the testator and of each other. The attestation shall state the
.fact that the testator signed the will, or caused it to be signed by
some other person at his express direction, in the presence of
three witnesses, and that they attested and subscribed it in his
presence and in the presence of each other. But the absence of
such form of attestation shall not render the will invalid if it
is proved that the will was in fact signed and attested as in this
section provided.

40 Purdon’s Dig. Pa. Laws (13 ed.), vol. 4, pp. 5109-5151.
§ 580 _ WILLS 512

Any person of sound mind, not blind, aged eighteen or more,
is a competent witness.

A devise to a witness is void unless there are three other com-
petent witnesses.

“A will made out of the Philippine Islands which might be
proved and allowed by the laws of the state or country in which
it was made, niay be proved, allowed, and recorded in the Philip-
pine Islands, and shall have the same effect as if executed ac-
cording to the laws of these Islands.”

“A will made within the Philippine Islands by a citizen or
subject of another state or country, which is executed in accord-
ance with the law of the state or country of which he is a citizen
or subject, and which might be proved and allowed by the law
of his own state or country, may be proved, allowed, and re-
corded in the Philippine Islands, and shall have the same effect
as if executed according to the laws of these islands.”

Wills proved and allowed in the United States, or any state
or territory thereof, or in a foreign state or country according
to the laws thereof, may be allowed, filed and recorded in the
Court of First Instance of the Province in which the testator
has estate on which it may operate. A duly authenticated copy
of the will and of the probate and allowance, must be produced
and a hearing had, and if allowed, the will has the same effect
as if originally proved in the same court.**

§ 580. Porto Rico.—All persons over fourteen years of
age, not permanently or temporarily of unsound mind, may
make wills.

A will is absolutely a personal act and can not be made through
a third person, trustee or agent. e

There are ordinary and special wills. Military and maritime
wills and those executed in foreign countries are special wills.

Ordinary wills are holographic, open and closed. The two lat-
ter kinds must be executed before a local notary, with many
formalities and witnesses, and are not of general interest.

41 P, I. Code Proc. (1901), §§ 614- 640.
513 DIGEST OF STATUTES § 581

Foreigners can probably only make the holographic will with
any practical effect.

Holegraphic wills may be executed only by persons of full
age and to be valid, must be written in entirety and signed by
the testator, who shall state the year, month, and day in which
it is executed. If it contains words erased, corrected, or inter-
lined the testator shall make a note thereof under his signature.

Holographic wills may be executed at any place, within or
outside of Porto Rico and foreigners may execute such wills
in their own language. ,

Such wills must be placed in a protocol being presented for
this purpose to the district court of the last domicil of the tes-
tator, or the court of the district in which the testator dies, if he
dies in Porto Rico, within five years from the date of death.

Citizens of Porto Rico may make wills abroad according to
the laws of the country where they are sojourning, or wills on
the high seas, in accordance with the laws of the state or nation
to which the ship belongs, or holographic wills anywhere, but
can not make a mutual will valid in Porto Rico even though it
would be valid where made.

Children and their descendants, or parents if there are no
children, are forced heirs. The children are entitled as such
to two-thirds of the property, the parents to one-half. There
can be disinheritance of children, parents or spouses only. for
certain statutory causes, which must be mentioned in the will.

The surviving spouse may take independently of the will.”

§ 581. Rhode Island.—Any person of sane mind aged
twenty-one years may by will dispose of any real and personal
estate to which in law or in equity, he shall be entitled at the
time of his death, except an estate-tail. A minor eighteen years -
old or more may bequeath personal estate.

Lapsed and void devises go to the residuary devisee.

Wills must be signed by the testator, or by some other per-
son for him in his presence and by his express direction, and
such signature shall be made or acknowledged by the testator

42Rey. Stats. and Codes P. R. (1913), §§ 3748-3811.

33—Tuomp. WILLS.
§ 582 WILLS 514

in the presence of two or more witnesses present at the same
time, and such witnesses shall attest and shall subscribe the will
in the presence of the testator, but no form of attestation shall
be necessary and no other publication shall be necessary.

“A will of real or personal property, or ‘both, executed with-
out the state and within the United States, if executed in the mode
prescribed by the laws of the state or territory or District of
Columbia, where executed, or in which the testator was then
‘domiciled, and any will of personal property executed in any
other country, if executed according to the laws of such coun-
try, shall be deemed to be legally executed, and shall have the
same force and effect as if executed in the mode prescribed by
‘the laws of this state,” provided it is in writing and subscribed
by the testator.

The will of a married woman can not impair her husband’s
rights as tenant by curtesy.

Marriage revokes a will, unless made in exercise of a power
of appointment.

Soldiers in service or seamen at sea, may dispose of personal
estate as at common law.

A child afterborn or unintentionally omitted takes as though
there were no will.

A devise or legacy to a witness is void, but he is competent
to prove the will. An executor or trustee is a competent witness.

An exemplified copy of a foreign will and probate may be
presented for filing and record, and after notice and hearing
will be of the same effect as if originally probated in Rhode
Island. A foreign will operative without probate where made,
may be proved in Rhode Island.*

§ 582. South Carolina.—‘‘All wills and testaments of real
and personal property shall be in writing and signed by the party
so devising the same, or by some other person in his presence
and by his express directions, and shall be attested and sub-
scribed in the presence of the said devisor, and of each other,
by three or more credible witnesses.”

43 Gen. Laws. R. I. (1909), ch. 254, §§ 11-36; ch. 310, § 10-14.
515 DIGEST OF STATUTES § 583

Any person of soynd mind of the age of twenty-one may de-
vise real property by will. As at common law, males over
fourteen and females over twelve may make a will of per-
sonalty.**

Estates pur autre vie are devisable. Devises or bequests to
subscribing witnesses are valid, so far as such legacy does not
exceed the amount to which the witness would be entitled upon
a failure of the will.

A creditor secured by the will is a competent witness.

Marriage of a testator revokes a will, if the wife and issue
are not provided for.

Words of limitation are unnecessary to convey a fee by devise.

Posthumous or other afterborn children take equally with the
other children, who must contribute to their share.

Legacies to a bastard child or to a woman with whom the
testator lives in adultery are, if the testator has a wife or lawful
children, void if they exceed one-fourth of his estate.

If a will has been regularly proved in a foreign court, an ex-

emplification of such will may be admitted to probate in this
state upon exemplification and certificate of the judge of the
court of probate. :
' Nuncupative wills where the estate exceeds fifty dollars are
not valid unless proved by the oaths of three witnesses present
at the making called upon by the testator to witness his will,
and unless made in the house where the testator lived, and in
his last sickness. If committed to writing within six days, such
will may be proved in twelve months, otherwise only in six
months.

Soldiers and mariners may make wills as at common law.

Typewritten wills are good.

Wills may be probated either in common form or in due form
of law.*

§ 583. South Dakota—Same as North Dakota, which is
practically same as California.*°

44Posey v. Posey, 3 Strob. (S. 45S. Car. Code (1912), §§ 3563-

Car.) 167; Major v. Hunt, 64 S. Car. 3589.
97, 41 S. E. 816. 46 Civ, Code S. Dak. (1913), §§ 998+
§ 584 WILLS 516

§ 584. Tennessee.—Wills of real estate may be made only
by persons aged twenty-one or more, but males aged fourteen
and females aged twelve may make wills of personalty.

“No last will or testament shall be good or sufficient to con-
vey or give any estate in lands unless written in the testator’s
lifetime and signed by him, or by some other person in his pres-
ence and by his direction, and subscribed in his presence by
two witnesses at least, neither of whom is interested in the
devise of the said lands.”

“But a paper writing appearing to be the will of a deceased
person, written wholly by him, having his name subscribed to
it or inserted in some part of it, and found after his death among
his valuable papers or lodged in the hands of another for safe
keeping, shall be good and sufficient to give and convey lands,
if the handwriting is generally known by his acquaintances and
is proved by at least three credible witnesses that they verily
believe the writing to be in his hand.”

A nuncupative will is not good as to an estate exceeding two
hundred fifty dollars, unless proved by two disinterested persons
who were present when it was made. _

A written will may not be revoked by an oral will.

No subscribing witnesses are necessary to a will of personalty.

A married woman may dispose of her realty or personalty by
will but not so as to affect her husband’s right of curtesy.

A foreign will may be proved by presenting a duly authen-
ticated copy to the county court. The certificate of a consul
or any United States agent at the place of execution is sufficient
authentication of a foreign will of personalty.

A pretermitted child takes as though there were no will. The
will speaks from the testator’s death.*”

§ 585. Texas.—Every person aged twenty-one years or
upward, or who may be or may have been lawfully married,
being of sound mind, shall have power to make a last will and
testament.

1035; Rev. Code S. Dak. (1903), pp. §§ 3895-3932; Supp. Shannon Code

735-739, Tenn. (1897-1903), § 3921.
47 Shannon’s Code Tenn. (1896),
517 DIGEST OF STATUTES § 586

Every will, except where otherwise provided by law, shall
be in writing and signed by the testator or by some other person
by his direction and in his presence, and shall, if not wholly
written by himself, be attested by two or more credible witnesses
above the age of fourteen years, subscribing their names thereto
in presence of the testator. In case of a holographic will, wholly
written by the testator, attestation is unnecessary.

A nuncupative will is valid if made in the time of the last
sickness of the deceased, at his habitation, unless taken sick from
home and he dies before returning; but not when the value
exceeds $30, unless proved by three competent witnesses. that
the testator called on some person to take notice of his will.
Such will can not be proved within fourteen days from the
testator’s death, and not after six months from date of speak-
ing, unless committed to writing within six days therefrom.
These provisions do not apply to mariners at sea or soldiers
in service.

Afterborn or posthumous children, unprovided for, take as
if there were no will. If the testator had no child, when the
will was made, his will is void if he die leaving a child.

Bequests to subscribing witnesses are void, unless they were
entitled to share under the law.

When any will disposing of lands in this state has been duly
probated according to the laws of any of the United States or
territories, a copy thereof and its probate may be filed and
recorded in the same manner as deeds and conveyances and
will have the same force and effect, but the validity of such
will may be contested within four years.”

§ 586. Utah.—Same as California, except no restrictions
that devises to charity must be made thirty days before death
and can not exceed one-third the estate.

“A will of real or personal property, or both, or a revocation
thereof, made out of this state by a person not having his dom-
icil in this state, is as valid when executed according to the law
of the place in which the same was made, or in which the tes-

48 Vernon’s Sayles’ Tex. Stats. Ann, (1914), §§ 7855-7878.
§ 587, WILLS 518

tator was at the time domiciled, as if it were made in this state
and according to the provisions of this chapter.”*

§ 587. Vermont.—Every person of age (males twenty-
one, females eighteen) and sound mind may devise, bequeath
and dispose of real and personal property by will. After-
acquired real estate passes by will if such was the testator’s
intention.

No will, except nuncupative wills, is valid unless in writing,
signed by the testator, or by the testator’s name written by some
other person in his presence and by his express direction, and
attested and subscribed by three or more credible witnesses in
the presence of the testator and of each other.

No nuncupative will is valid where the estate exceeds two
hundred dollars, nor unless a memorandum was made in
writing by a person present within six days from the time of
making, and presented for probate within six months. A soldier
or seaman may make a will of wages or personal estate as at
common law.

A devise to witnesses is void unless there are three other
competent witnesses. A secured creditor is a competent wit-
ness.

“A will made out of the state, which might be proved and
allowed by the laws of the state or country in which it was made,
may be proved, allowed, and recorded in this state, and shall
then have the same effect as if executed according to the laws
of this state.” Wills proved and allowed in any other state or
in a foreign country may be allowed, filed and recorded in the
probate court of a district in which the testator has property
on which it may operate. A duly authenticated copy of such
will and its probate is required.”

§ 588. Virginia —No person of unsound mind, or under
the age of twenty-one years, shall be capable of making a will,
except that minors eighteen years of age or upward may, by
will, dispose of personal estate.

49Comp. Laws Utah (1907), §§  5°Pub. Stats. Vt. (1906), §§ 273%
2731-2766. rss,
519 DIGEST OF STATUTES § 588

No will is valid unless in writing and signed by the testator,
or by some other person in his presence and by his direction,
in such manner as to make it manifest that the name is intended
as a signature; and, unless it be wholly written by the testator,
the signature shall be made or the will acknowledged by him
in the presence of at least two competent witnesses present at
the same time, and such witnesses shall subscribe the will in
the presence of the testator, but no form of attestation shall be
necessary.

A soldier in actual service or seaman at sea may dispose of
personal estate as at common law.

The will of a person domiciled out of the state at the time
of his death is valid as to personal property in the state, if exe-
cuted according to the laws of the place of domicil.

Wills made by either a man or woman are revoked by mar-
riage, except where made in exercise of a power of appointment.

A will speaks as of the date of testator’s death.

Lapsed: devises are included in the residuary devise.

If a child is born to a testator who had no child living when
his will was made, the will is construed as if limited to take
effect in the event the child shall die under the age of twenty-one,
unmarried without issue.

Afterborn or pretermitted children take as if no will had been
made.

Devisees and legatees are competent witnesses, but a bequest
to them is void, except so far as entitled to a share in the ab-
sence of a will. A creditor secured by will, or an executor, is
a competent witness.

Where a will relative to estate within this state has been
proved without the same, an authenticated copy thereof and the
certificate of probate thereof may be offered for probate in this
state.‘ If valid as a will of personalty where executed, it is
valid in Virginia, and if so executed as to be a valid will of lands
by the law of Virginia, it may be admitted to probate as a will
of real estate.**

51 Pollard’s Va. Code (1904), §§ 2513-2536,
§ 589 WILLS 520

§ 589. Washington.—Every person having attained ma-
jority (males, twenty-one years; females, eighteen years, or law-
fully married with consent of parents or guardian) may by last
will dispose of all his or her real and personal estate.

Every will shall be in writing, signed by the testator or some
other person under his direction in his presence, and shall be
attested by two or more competent witnesses, subscribing their
names to the will in the presence of the testator.

Every person who shall sign the testator’s name to any will by
his direction shall subscribe his own name as a witness to such
will, and state that he subscribed the testator’s name at his re-
quest. | ¥

A subsequent marriage revokes a will, unless the spouse is
provided for.

Children unprovided for take as if the testator had died in-
testate.

A nuncupative will is not good as to an estate of value exceed-
ing two hundred dollars, unless proved by two witnesses who
were present at its making, and unless the testator bid some
person present to bear witness to his will, and unless made at
the time of the testator’s last sickness in his dwelling house or
place of residence for ten days prior, unless he was taken sick
from home and died before return. Any soldier in service or
sailor at sea may dispose of wages or personal property by will
without regard to these provisions. A nuncupative will must
be committed to writing and offered for probate within six
months after speaking.

Devises to witnesses are void except as to a share which would
have descended to them by law. ,

A devise of land conveys the testator’s entire estate therein,
unless it clearly appears otherwise.

After-acquired lands pass by will if such was the testator’s
intention.

Probated foreign wills are admitted to probate on production
of a copy.of such will, and of the original probate record au-
thenticated by the clerk of court, or if there be no such officer,
521 DIGEST OF STATUTES § 596

of the judge, where probation was made. Such will is carried
into effect after probate as a domestic will is.

Where it is provided in the will that the estate shall be settled
in a manner provided in such will and that letters testamentary
or of administration shall not be required, and where it also
duly appears to the court by the inventory filed and other proof,
that the estate is fully solvent, which fact may be established
by an order of the court in the coming in of the inventory, it
shall not be necessary to take out letters testamentary or of
administration, except to admit to probate such will and to file
a true inventory of all property of such estate in the manner
required by existing laws. After the probate of such will and
the filing of such inventory all such estates may be managed
and settled without the intervention of the court if the will
so provide,”’*?

§ 590. West Virginia—Same as Virginia.™

§ 591. Wisconsin.—Every person of the age of twenty-
one and any married woman of the age of eighteen, of sound
mind, may make a will of real or personal property. .

After-acquired estate passes by will if so intended.

No wills made in the state after January 1, 1896, except
nuncupative wills, shall be effectual unless in writing, signed
by the testator, or by some person in his presence and by his
express direction, and attested and subscribed in the presence
of the testator by two or more competent witnesses in the pres-
ence of each other.

“A last will and testament executed without this state in the
mode prescribed by the law either of the place where executed
or of the testator’s domicil shall be deemed to be legally exe-
cuted, and shall be of the same force and effect as if executed
in the mode prescribed by the laws of this state, provided said
last will and testament is in writing and subscribed by the
testator.”

52 Rem. & Bal. Code Wash. (1910), 58 W. Va. Code (1916), pp. 968-
$§ 1319-1339, 1317, 1631, 1444, 973.
§ 592 WILLS 522

Devises or gifts to witnesses are void unless they were enti-
tled to share in the estate without a will, or unless there are
sufficient other competent witnesses,

An after-born child unprovided for and not intentionally
omitted, or pretermitted children take as if the testator had died
intestate.

The issue of a legatee who is a child or relative and dies before
the testator, take the parent’s share.

A nuncupative will where the estate exceeds one hundred
fifty dollars is not good unless proved by the oath of three wit-
nesses present at the making, and some of the persons present
were bid by the testator to witness the will, and unless made
at the time of last sickness, in the testator’s habitation or dwell-
ing house unless he was unexpectedly taken sick and died before
return. Such will must be proved within six months unless
reduced to writing within six days from making. These pro-
visions are not applicable to a soldier in service or mariner at sea.

A duly authenticated copy of a probated foreign will and of
the probate thereof may be recorded in the office of the register
of deeds of any county in which lands in this state devised by
it are situated, and shall be as valid to pass title as if proved in
this state.°*

§ 592. Wyoming.—Any person of full age and sound faind.
may dispose by will of all his property, except what is sufficient
to pay his debts, or is allowed by law to husband and family or
wife and family. A married woman may make a will as if sole.

After-acquired property passes by will, if such appears to
have been the intention.

All wills to be valid must be in writing, or typewritten, wit-
nessed by two competent witnesses and signed by the testator
or by some person in his presence and by his express direction.

No subscribing witness can derive any benefit from a will
unless without the will he would have shared in the estate, or
there are two other competent witnesses.

All wills duly proved and allowed in any other of the United

54 Wis. Stats. (1915), §§ 2277-2295.
523 DIGEST OF STATUTES .§ 593

States, or in any foreign country or state, may be allowed and
recorded in the district court of any county in which the tes-
tator shall have left any estate.

“If, on the hearing, it appears upon the face of the record
that the last will has been proved, allowed and admitted to pro-
bate in any other of the United States, or in any foreign coun-
try, and that it was executed according to the law of the place
in which the same was made, or in which the testator was at
the time domiciled, or in conformity with the laws of this state,
it must be admitted to probate, and have the same force and
effect as a will first admitted to.probate in this state and letters
testamentary or of administration issued thereon.”

Nuncupative wills may be probated within six months from
speaking, on petition and notice, as provided for other wills.
They must have been reduced to writing within thirty days
from speaking.*®

§593. British Columbia.—Same as Ontario, except that
all wills not made in exercise of a power of appointment, are
revoked by the testator’s marriage, and there is nothing equiv-
alent to the Wills Act of 1861.°°

§ 594. England and Ireland.—Under the British Wills
Act of 1837 no will is valid if made by a person under twenty-
one years of age, nor unless in writing and signed at the foot
or end thereof by the testator, or by some other person in his
presence and by his direction, and such signature shall be made or
acknowledged by the testator in the presence of two or more wit-
nesses present at the same time, and such witnesses shall attest
and shall subscribe the will in the presence of the testator, but
no form of attestation shall be necessary.

Soldiers in service and seamen at sea may make nuncupative
wills.

Gifts to an attesting witness are void. An executor or a
creditor secured by will is a competent witness,

A will speaks as from the death of the testator.

55 Wyo. Comp. Stats. (1910), §§ Rev. Stats. Brit. Col. (1911), ch.
3911, 5394-5422, 5436, 5437. 241, §§ 1-32.
§ 595 WILLS 524

Lapsed and void devises go to the residuary devisee.

A devise without words of limitation will pass the fee simple.

Gifts to children or other issue who leave issue living at the
testator’s death, do not lapse, but go to such issue.*”

There are certain formalities prescribed as to the wills of
seamen and mariners, which will not be here given.”*

By the Wills Act of 1861, which also applies to Scotland, “1.
Every will and other testamentary instrument’ made out of the
United Kingdom by a British subject (whatever may be the
domicil of such person at the time of making the same or at
the time of his or her death) shall, as regards personal estate,
be held to be well exectited for the purpose of being admitted
in England and Ireland to probate, and in Scotland to confirma-
tion, if the same be made according to the forms required either
by the law of the place where the same was made, or by the law
of the place where such person was domiciled when the same
was made, or by the laws then in force in that part of Her
Majesty’s dominions where he had his domicil of origin. 2.
Every will and other testamentary instrument made within the
United Kingdom by any British subject (whatever may be the
domicil of such person at the time of making the same or at the
time of his or her death) shall, as regards personal estate, be
held to be well executed, and shall be admitted in England and
Ireland to probate, and in Scotland to confirmation, if the same
be executed according to the forms required by the laws for the
time being in force in that part of the United Kingdom where
the same is made. 3. No will or other testamentary instru-
ment shall be held to be revoked or to have become invalid, nor
shall the construction thereof be altered, by reason of any subse-
quent change of domicil of the person making the same.”*°

§ 595. Manitoba.—<As to capacity of testator and form of
execution, same as Ontario.

Holographic wills are valid and require no witnesses.

571 Vict., ch. 26, §§ 9-35. 5924 and 25 Vict. ch. 114, §§ 1,

58 Navy and Marines (Wills) Act 2, 3.
1865, 28 and 29 Vict., ch. 72.
525 DIGEST OF STATUTES § 596

Marriage of a testator revokes his will, unless made in the
exercise of a power of appointment.
There is nothing equivalent to the Wills Act of 1861.°°

§ 596. New Brunswick.—No will made by any person un-
der twenty-one years of age is valid. No will is valid unless
in writing and signed at the foot or end thereof by the testator,
or by some other person in his presence and by his direction,
and such signature shall be made or acknowledged by the testator
in the presence of two or more witnesses present at the same
time, and such witnesses shall attest and subscribe the will in the
presence of the testator and in the presence of each other; but
any will, although not signed at the foot or end thereof, shall
be valid if it be apparent from the will and position of the signa-
ture, or from the evidence of the witnesses thereto, that the
same was intended by the testator to be his last will, but no
form of attestation shall be necessary.

Gifts to an attesting witness are void unless there are two
other competent witnesses.

A creditor or executor is a competent witness.

A will not made in exercise of a power of appointment is
revoked by the testator’s marriage.

A will is construed as of the date of testator’s death.

A married woman may make a will as if sole.

A devise without words of limitation passes the fee simple.

There are provisions as to the province similar to the British
Wills Act of 1861.%

§ 597. Newfoundland.—No will is valid unless in writing,
either “in the handwriting of the testator and signed by him
or, if not so written and signed, signed by him in the presence
of at least two witnesses, who shall, in the presence of the tes-
tator, sign the same as witnesses, and in case such will shall be
made by a marksman unless the same shall have been first read
over to or by the testator in the presence of the said witnesses.”

60 Manitoba Rev. Stats. (1913), 160, §§ 3-34. See ante § 594, for
ch. 204, 8§ 3, 4, 5, 10. British Wills Act of 1861.
61 Consol. Stats. N. B. (1903), ch.
§ 598 WILLS 526

But a seaman or fisherman at sea may dispose of property as
at common law.

No will is valid made by a person under seventeen years of
age. Devises to witnesses are void, unless the will may be proved
sufficiently without such witness.

Marriage of a man or woman, revokes any will made by such
person except in exercise of a power of appointment.

Every will speaks as at the testator’s death.

Gifts to a child or other issue, who shall die before the tes-
tator, leaving issue, go to such issue.*?

§ 598. Nova Scotia—Any person over twenty-one may
make a valid will of personalty or real estate. Such will must
be in writing signed at the end or foot thereof by the testator,
or by some other person in his presence and by his direction, and
such signature shall be made or acknowledged by the testator
in the presence of two or more witnesses present at the same
time, and such witness shall attest and shall subscribe the will
in the presence of the testator, but no form of attestation shall
be necessary.

As to married women it is provided, “(1) No will of any mar-
ried woman under which her husband takes a greater interest in
her property than he would be entitled to in case of her dying
intestate shall be -valid, unless the same is executed when such
husband is not present, and at the time of the execution thereof
such married woman declares, in the presence of the witnesses
thereto, that she executes the same of her free will and without
any fear, threat, or compulsion or other undue influence of, from,
or by her husband. (2) No such will shall be valid or admitted
to probate unless (a) such declaration, in addition to being
made in the presence of the witnesses to the will, is made before
(I) a judge of the supreme court; (II) a judge of the county
court; (III) a barrister of the supreme court; (IV) a notary
public; (V) a commissioner for taking affidavits; or (VI) a
justice of the peace, and the functionary before whom such
declaration is made appends to such will a certificate that such

62 Newf. Consol. Stats. (1892), ch, 79.
Sav DIGEST OF STATUTES § 599

declaration was made, which certificate may be in form A, in
the schedule to this chapter, or to the like effect; or (b) it is
proved by evidence, under oath, upon the application to admit
the will to probate that such declaration was made in the pres-
ence of such witnesses. Every will made out of the province
(whatever was the domicil of the testator at the time of making
the same or at the time of his death) shall, as regards personal
property, be held to be well executed for the purpose of being
admitted to probate in Nova Scotia, if the same is made accord-
ing to the forms required, either (a) by the law of this province;
or (b) by the law of the place where the same was made; or
(c) by the law of the place where the testator was domiciled
when the same was.made; or (d) by the law then in force in
the place where he had his domicil of origin.”

Soldiers in service and sailors at sea may dispose of personal
estate by nuncupative will.

All wills are revoked by marriage, except a will made in the
exercise of a power of appointment.

The other provisions of the statute are similar to those of
Ontario.

§ 599. Ontario.—A person twenty-one years old may
make a valid will.

A will must be in writing and signed at the foot or end thereof
by the testator, or by some other person in his presence and by
his direction, and such signature shall be made or acknowledged
by the testator in the presence of two or more witnesses present
at the same time, and such witnesses shall attest and shall sub-
scribe the will in the presence of the testator, but no form of
attestation shall be necessary.

’ A soldier in service or mariner at sea may dispose of personal
estate by nuncupative will.

Gifts to witnesses are invalid.

An executor or a creditor secured by will is a competent wit-
ness

®3 Nova Sc. Rev. Stat. (1900), ch. 139, 8§ 4-14.
§ 600 | WILLS 528

There is also an act applying to Ontario provisions similar to
those of the British Wills Act of 1861.

A will speaks as of the date of testator’s death. 4

Marriage of a man or woman revokes a will, unless made in
contemplation of marriage, or unless the surviving spouse elects
to take under the will, or unless made in exercise of a power of
appointment.

Gifts to children or issue who die before the. testator pass
to their issue, living at his death.

Lapsed devises go to the residuary devisee.™

§ 600. Other British possessions.—In most British pos-
sessions wills executed according to the provisions of the English
Wills Act, heretofore given, are valid.

$601. Quebec.—Every person of the age of twenty-one,
of sound intellect, capable of alienating his property, may make
a will of property of whatever nature.

Corporations and petsons in mortmain can only receive by
will such property as they can legally possess.

Married women may dispose of property by will.

Two or more persons can not make a will by the same act.

Wills may be made in notarial or authentic form; in the form
required for holographic wills, and in writing and in the pres-
ence of witnesses, in the form derived from the laws of Eng-
land.

Authentic wills must be made in the province, with many
formalities.

Military men in service or mariners on board ship, on voyage
or in hospitals may make wills valid by the law of England,
which will be valid in Quebec.

64 Ont. Rev. Stats. (1914), p. 1269, South Austra. Acts (1842), ch. 16,
ch. 120, 1-38. See ante § 594, for Acts (1895), ch. 620; Stokes’ Tas-
British Wills Act of 1861. mania Stats. (1885), 2271, 1 Vict.,

65 Ord. No. 15, Cape Colony (1845); ch. 26, §§ 7-9, 16 Vict. ch. 4, § 1;
Natal Laws (1868), ch. 2; New Victoria Wills Act (1890), §§ 5-7;
South Wales Stat. (1898), ch. 13, §§ Western Austra. Stat. (1882), 2
6, 7; Queensland Stat. (1889), 31 Vict. ch. 1, 18 Vict., ch. 13.

Vict., ch. 24 (1867), §§ 37, 38, 39;
529 DIGEST OF STATUTES § 602

Holographic wills must be wholly written and signed by the
testator, require no witnesses and are subject to no particular
form. They may be made by deaf mutes.

Wills made in the form derived from the laws of England
(whether they affect movable or immovable property) must be
in writing and signed at the end with the signature or mark
of the testator, made by himself or by another person for him
in his presence and under his express direction, which signature
is then or subsequently acknowledged by the testator as having
been subscribed by him to his will then produced, in pres-
ence of at least two competent witnesses together, who attest,
and sign the will immediately in the presence of the testator and
at his request.

§ 602. Saskatchewan.—Same as Ontario.”

§ 603. Scotland.—There are no Scotch statutes applicable
to wills. The British Wills Act does not extend to Scotland.

Testamentary instruments are known as deeds of settlement
and attested as are other deeds.

Males fourteen years of age and females aged twelve may
make a testamentary disposition of personal property, and a
married woman of full age may likewise dispose of real prop-
erty.

Holographic and notarial wills are permitted, and a will which
declares that it is holographic is presumed to be so.

A will executed in a foreign country according to the law
of the place of execution, will pass real as well as personal prop-
erty in Scotland.

“In order to render a deed probative by the law of Scotland,
it must 1. Be subscribed by the grantor at the end, and if it
consists of more than one sheet, also at the foot of each page.
2. It must be signed on the last page by two witnesses who
either see the party subscribe or hear the signature acknowledged.

66 Civ. Code Lower Canada, $§ 831- 67 Rev. Stat. Saskatchewan (1909),
855. ch. 44.

34—Tuomp. WILLS,
§ 603 WILLS 530

The witnesses may be male or female, but they must ve fourteen
years old and subject to no legal incapacity. 3. The designa-
tion of the witnesses is to be set forth in the testing clause or
follow the signature of the witnesses.’

‘

68 Connel’s Trustees (1872), 10 101, § 20; 13 Green’s Encyc. Law
Macpherson 627; 31 and 32 Vict., ch. Scotland (1900), 190-191.
CHAPTER XXIX

TREATIES AND CONVENTIONS

SECTION SECTION
610. Treaties affecting disposition 630. Italy.
and transmission of property. 631. Japan.

‘611, Argentine Republic. 632. Kongo.

612. Austria-Hungary. 633, Mecklenburg-Schwerin,
613. Bavaria. 634. Morocco.

614. Belgium. 635. Netherlands.

615. Bolivia. 636. Ottoman Empire.
616. Brazil.’ 637. Paraguay.

617. Brunswick and Luneburg. | 638. Persia.

618. Columbia. 639. Prussia.

619. Costa Rica. 640. Roumania.

620. Denmark. 641. Russia.

621. France. 642. Saxony.

622. German Empire. 643. Servia.

623. Great Britain. 644. Spain.

624. Greece. 645. Sweden and Norway.
625. Guatemala. 646. Switzerland.

626. Haiti. 647. Tripoli.

627. Hanseatic Republics. 648. Wurtemberg.

628. Hesse. 649. Hague Convention.

629. Honduras.

§ 610. Treaties affecting disposition and transmission of
property.—Certain treaties and conventions have been made
between the United States and foreign governments conferring
reciprocal rights and privileges upon the citizens of the respec-
tive countries as regards the disposal of both real and personal
property within the jurisdiction of the other. Such treaties
override antecedent federal and state statutes,‘ and, sc far as
they are inconsistent with the provisions of the local law, the
latter must give way.” Such treaties are construed liberally,

1 Hauenstein v. Lynham, 100 U. S. 2 Schultze v. Schultze, 144 Ill, 290,
483, 25 L. ed 628. 33 N. E. 201, 19 L. R. A. 20, 36 Am,
St. 432.

531
§ 611 WILLS 532
so as to carry out the apparent intention of the parties to secure
equality and reciprocity between them. As they are contracts
between independent nations, in their construction words are
to be taken in their ordinary meaning, as understood in the
public law of nations, and not in any artificial or special sense
impressed upon them by local laws, unless such restricted sense
is clearly intended.*

In succeeding sections of this chapter will be found extracts
from treaties between the United States and foreign powers
affecting tenure and disposal of property of subjects.

§611. Argentine Republic—(Treaty of 1853, Art. IX.)
If any citizen of the two contracting parties shall die without
will or testament, in any of the territories of the other, the
consul-general or consul of the nation to which the deceased
belonged, or the representative of such consul-general or consul,
in his absence, shall have the right to intervene in the possession,.
administration and judicial liquidation of the estate of the de-
ceased, conformably with the laws of the country, for the benefit
of the creditors and legal heirs.

§612. Austria-Hungary.—(Treaty of 1829, Art. XI.)
The citizens or subjects of each party shall have power to dis-
pose of their personal goods within the jurisdiction of the other,
by testament, donation, or otherwise, and their representatives,
being citizens or subjects of the other party, shall succeed to
their personal goods, whether by testament or ab intestato, and
may take possession thereof, either by themselves or by others
acting for them, and dispose of the same at their will, paying
such dues, taxes, or charges only, as the inhabitants of the
country wherein the said goods are shall be subject to pay in
like cases. And in the case of the absence of the representative,
such care shall be taken of the said goods as would be taken
of the goods of a native in like case, until the lawful owner may
take measures for receiving them. And if any question should
arise among several claimants, to which of them said goods be-

3 Geofroy v. Riggs, 133 U. S. 258, 33 L. ed. 642, 10 Sup. Ct. 295.
533 TREATIES AND CONVENTIONS § 612

long, the same shall be decided finally by the laws and judges
of the land wherein the said goods are. But this article shall
not derogate in any manner from the force of laws already
published, or hereafter to be published, by His Majesty.the Em-
peror of Austria, to prevent the emigration of his subjects.

(Treaty of 1848, Art. I.) The citizens or subjects of each
of the contracting parties shall have power to dispose of their
personal property within the states of the other, by testament,
donation or otherwise; and their heirs, legatees and donees,
being citizens or subjects of the other contracting party, shall
succeed to their said personal property, and may take possession
thereof, either by themselves or by others acting for them, and
dispose of the same at their pleasure, paying such duties only
as the inhabitants of the country where the said property lies,
shall be liable to pay in like cases.

(Art. II.) Where, on the death of any person holding real
property, or property not personal, within the territories of one
party, such real property would, by the laws of the land, descend
on a citizen or subject of the other were he not disqualified by
the laws of the country where such real property is situated,
such citizen or subject shall be allowed a term of two years to
sell the same; which term may be reasonably prolonged according
to circumstances; and to withdraw the proceeds thereof, without
molestation, and exempt from any other charges than those which
may be imposed in like cases upon the inhabitants of the coun-
try from which such proceeds may be withdrawn.

(Art. ITI.) In case of the absence of the heirs, the same care
shall be taken, provisionally, of such real or personal property as
would be taken in a like case of property belonging to the na-
tives of the country, until the lawful owner, or the. person who
has a right to sell the same according to Article II, may take
measures to receive or dispose of the inheritance..

(Treaty of 1870, Art. XVI.) In case of the death of a citizen
of the United States in the Austrian Hungarian Monarchy, or
of a citizen of the Austrian Hungarian Monarchy in the United
States, without having any known heirs or testamentary execu-
tors by him appointed, the competent local authorities shall in-
§ 613 WILLS 534

form the consuls or consular agents of the state to which the
deceased belonged, of the circumstance, in order that the neces-
sary information may be immediately forwarded to the parties
interested. |

§ 613. Bavaria—(Treaty of 1845, Art. II.) Where, on
the death of any person holding real property within the terri-
tories of one party, such real property would, by the laws of
the land, descend on a citizen or subject of the other, were he
not disqualified by alienage, such citizen or subject shall be al-
lowed a term of two years to sell the same, which term may be
reasonably prolonged according to circumstances, and to with-
draw the proceeds thereof, without molestation, and exempt
from all duties of detraction.

(Art. III.) The citizens or subjects of each of the contracting
parties shall have power to dispose of their personal property
within the states of the other, by testament, donation, or other-
wise; and their heirs, legatees and donees, being citizens or
subjects of the other contracting party, shall succeed to their
said personal property, and may take possession thereof, either
by themselves, or by others acting for them, and dispose of the
same at their pleasure, paying such duties only as the inhab-
itants of the country where the said property lies shall be liable
to pay in like cases.

(Art. IV.) In case of the absence of the heirs, the same
care shall be taken provisionally, of such real or personal prop-
erty as would be taken in a like case of property belonging to the
natives of the country, until the lawful owner, or the person
who has the right to sell the same according to Article II, may
take measures to receive or dispose of the inheritance.

(Art. V.) If any dispute should arise between different
claimants to the same inheritance, they shall be decided in the last
resort according to the laws, and by the judges of the country
where the property is situated.

§ 614. Belgium.—(Treaty of 1880, Art. XV.) In case of
the death of any citizen of the United States in Belgium, or of
a citizen of Belgium in the United States, without having any
535 TREATIES AND CONVENTIONS § 615

known heirs or testamentary executor by him appointed, the com-
petent local authorities shall give information of the circum-
stance to the consuls or consular agents of the nation to which
the deceased belongs, in order that the necessary information
may be immediately forwarded to parties interested.

Consuls-general, consuls, vice-consuls and consular agents shall
have the right to appear, personally or by delegate, in all pro-
ceedings on behalf of the absent or minor heirs, or creditors,
until they are duly represented.

§615. Bolivia—(Treaty of 1858, Art. XII.) The citi-
zens of each of the contracting parties shall have power to dis-
pose of their personal goods within the jurisdiction of the other,
by sale, donation, testament, or otherwise, and their representa-
tives, being citizens of the other party, shall succeed to their
said personal goods, whether by testament, or ab intestato, and
they may take possession thereof, either by themselves or others
acting for them, and dispose of the same at their will, paying
such duties only as the inhabitants of the country where such
goods are shall be subject to pay in like cases. And if in the
case of real estate, the said heirs would be prevented from
entering into the possession of the inheritance on account of
their character of aliens, there shall be granted to them the
longest period allowed by the law to dispose of the same as they
may think proper, and to withdraw the proceeds without molesta-
tion, or any other charges than those which are imposed by
the laws of the country.

§ 616. Brazil.—(Treaty of 1828, Art. XI.) The citizens
or subjects of each of the contracting parties shall have power
to dispose of their personal goods within the jurisdiction of the
other, by sale, donation, testament or otherwise, and their repre-
sentatives, being citizens or subjects of the other party, shall
succeed to the said personal goods whether by testament, or ab
intestato, and they may take possession thereof, either by them-
selves, or others acting for them, and dispose of the same at
their will, paying such dues only as the inhabitants of the coun-
try, wherein said goods are shall be subject to pay in like cases;
§ 617, WILLS 536

and if in the case of real estate, the said heirs would be prevented
from entering into the possession of the inheritance, on account
of their character of aliens, there shall be granted to them the
term of three years, to dispose of the same, as they may thick
proper, and to withdraw the proceeds without molestation, or
any other charges than those which are imposed by the laws
of the country.:

§ 617. Brunswick and Luneburg.—(Treaty of 1854, Art.
I.) The citizens of each one of the high contracting parties
shall have power to dispose of their personal property, within
the jurisdiction of the other, subject to the laws of the state or
country where the domicil is, or the property is found, either
by testament, donation, or ab intestato, or in any other manner ;
and their heirs, being citizens of the other party, shall inherit
all such personal estates, whether by testament or ab intestato,
and they may take possession of the same, either personally or
by attorney, and dispose of them as they may think proper, pay-
ing to the respective governments no other charges than those
to which the inhabitants of the country in which the said property
shall be found would be liable in a similar case; and, in the
absence of such heir, or heirs, the same care shall be taken of
the property that would be taken in the like case, for the preserva-
tion of the property of a citizen of the same country, until the
lawful proprietor shall have had time to take measures for pos-
sessing himself of the same; and in case any dispute should
arise between claimants to the same succession, as to the property
thereof, the question shall be decided according to the laws, and
by the judges, of the country in which the property is situated.

(Art. II.) If, by the death of a person owning real property
in the territory of one of the high contracting parties, such prop-
erty should descend, either by the laws of the country or by
testamentary disposition, to a citizen of the other party, who,
on account of his being an alien, could not be’ permitted to retain
the actual possession of such property, such term as the laws,
of the state or country will permit shall be allowed to him to
dispose of such property, and collect and withdraw the proceeds
thereof, without paying to the government any other charges
537 TREATIES AND CONVENTIONS § 618

than those which, in a similar case, would be paid by an inhab-
itant of the country in which such real property may be situated.

§618. Columbia.—(Treaty of 1846, Art. XII.) The citi-
zens of each of the contracting parties shall have power to dis-
pose of their personal goods or real estate within the jurisdiction
of the other, by sale, donation, testament, or otherwise, and
their representatives being citizens of the other party, shall suc-
ceed to their said personal goods or real estate, whether by
testament or ab intestato, and they may take possession thereof,
either by.themselves or others acting for them, and dispose of
the same at their will, paying such dues only as the inhabitants
of the country wherein said goods are shall be subject to pay
in like cases.

$619. Costa Rica——(Treaty of 1851, Art. VIII.) In
whatever relates to the police of the ports, the lading and unlad-
ing of ships, the safety of merchandise, goods and effects, the
succession to personal estates by will or otherwise, and the dis-
posal of personal property of every sort and denomination, by
sale, donation, exchange, testament, or in any other manner
whatsoever, as also the administration of justice; the citizens
of the two high contracting parties.shall reciprocally enjoy the
same privileges, liberties and rights, as native citizens, and they
shall not be charged in any of these respects with any higher
imposts or duties than those which are paid or may be paid by
native citizens, submitting of course to the local laws and regula-
tions of each country, respectively.

If any citizen of either of the two high contracting parties
shall die without will or testament in any of the territories of
the other, the consul-general or consul of the nation to which
the deceased belonged, or the representative of such consul-
general or consul in his absence, shall have the right to nominate
curators to take charge of the property of the deceased, so far
as the laws of the country will permit, for the benefit of the
lawful heirs and creditors of the deceased; giving proper notice
of such nomination to the authorities of the country.
§ 620 WILLS 538

§ 620. Denmark.—(Treaty of 1826, Art. VII.) The United
States and his Danish Majesty mutually agree that no higher
or other duties, charges or taxes of any kind shall be levied in
the territories or dominions of either party, upon any personal
property, money, or effects of their respective citizens or subjects,
on the removal of the same from their territories or dominions
reciprocally, either upon the inheritance of such property, money,
or effects, or otherwise than are or shall be payable in each state,
upon the same, when removed by a citizen or subject of such
state respectively.

§ 621. France.—(Treaty of 1853, Art. VII.) In all the
states of the Union whose existing laws permit it, so long and to
the same extent as the said laws shall remain in force, Freach-
men shall enjoy the right of possessing personal and real prop-
erty by the same title and in the same manner as the citizens
of the United States. They shall be free to dispose of it as
they may please, either gratuitously or for value received, by
donation, testament or otherwise, just as those citizens them-
selves, and in no case shall they be subjected to taxes on transfer,
inheritance, or any others different from those paid by the latter,
or to taxes which shall not be equally imposed.

As to the states of the Union by whose existing laws aliens
are not permitted to hold real estate, the President engages to
recommend to them the passage of such laws as may be neces-
sary for the purpose of conferring this right.

In like manner, but with the reservation of the ulterior right
of establishing reciprocity in regard to possession and inheritance,
the government of France accords to the citizens of the United
States the same rights within its territory in respect to real and
personal property and to inheritance, as are enjoyed there by
its own citizens.

§ 622. German Empire.—(Treaty of 1871, Art. X.) In
case. of the death of any citizen of Germany in the United States
or of any citizen of the United States in the German Empire
without having in the country of his decease any known heirs
or testamentary executors by him appointed, the competent local
539 TREATIES AND CONVENTIONS § 623

authorities shall at once inform the nearest consular officer of
the nation to which the deceased belongs of the circumstance,
in order that the necessary information may be immediately for-
warded to parties interested.

The said consular officer shall have the right to appear. per-
sonally or by delegate, in all proceedings on behalf of the absent
heirs or creditors until they are duly represented.

In all successions to inheritances citizens of each of the con-
tracting parties shall pay in the country of the other such duties
only as they would be liable to pay if they were citizens of the
country in which the property is situated or the judicial admin-
istration of the same may be exercised.

§ 623. Great Britain —(Treaty of 1899, Art. I.) Where,
on the death of any person holding real property (or property
not personal), within the territories of one of the contracting
parties, such real property would, by the laws of the land, pass
to a citizen or subject of the other, were he not disqualified by
the laws of the country where such real property is situated, such
citizen or subject shall be allowed a term of three years in which
to sell the same, this term to be reasonably prolonged if cir-
cumstances render it necessary, and to withdraw the proceeds
thereof, without restraint or interference, and exempt from any
succession, probate or administrative duties or charges other
than those which may be imposed in like cases upon the citizens
or subjects of the country from which such proceeds may be
drawn.

(Art, II.) The citizens or subjects of each of the contracting
parties shall have full power to dispose of their personal prop-
erty within the territories of the other, by testament, donation,
or otherwise; and their heirs, legatees, and donees, .being citizens
or subjects of the other contracting party, whether resident or
nonresident, shall succeed to their said personal property, and
may take possession thereof either by themselves or by others
acting for them, and dispose of the same at their pleasure, paying
such duties only as the citizens or subjects of the country where
the property lies shall be liable to pay in like cases.
§ 623° WILLS 540

(Art. IIL.) In case of the death of any citizen of the United
States of America in the United Kingdom of Great Britain and
Ireland, or of.any subject of Her Britannic Majesty in the
United States, without having in the country of his decease any
known heirs or testamentary executors by him appointed, the
competent local authorities shall at once inform the nearest
consular office of the nation to which the deceased person be-
longed of the. circumstance, in order that the necessary informa-
tion may be immediately forwarded to persons interested.

The said consular officer shall have the right to appear pez-

sonally or by delegate in all proceedings on behalf of the absent
heirs or creditors, until they are otherwise represented,
' (Art. IV.) The stipulations of the present convention shall
not be applicable to any of the colonies or foreign possessions
of Her Britannic Majesty unless notice to that effect shall have
been given, on behalf of any such colony or foreign possession
by Her Britannic Majesty’s representative at Washington to the
United States secretary of state within one year from the date
of the exchange of the ratifications of the present convention.

It is understood that under the provisions of this article, Her
Majesty can in the same manner give notice of adhesion on
behalf of any British Protectorate or sphere of influence, or
on behalf of the Island of Cyprus, in virtue of the convention of
the fourth of June, 1878, between Great Britain and Turkey.

The provisions of this convention shall extend and apply to
any territory or territories pertaining to or occupied and governed
by the United States beyond the seas, only upon notice to that
effect being given by the representative of the United States at
London, by direction of the treaty making power of the United
States.

(Art. V.) In all that concerns the right of disposing of every
kind of property, real or personal, citizens or subjects of each
of the high contracting parties shall in the dominions of the
other enjoy the rights which are or may be accorded to the
citizens or subjects of the most favored nation.

(Art. VI.) The present convention, shall come into effect
ten days after the day upon which the ratifications are exchanged,
541 TREATIES AND CONVENTIONS § 623

and shall remain in force for ten years after such exchange. In
case neither of the high contracting parties shall have given
notice to the other, twelve months before the expiration of the
said period of ten years, of the intention to terminate the present
convention, it shall remain in force until the expiration of one
year from the day on which either of the high contracting par-
ties shall have given such notice.

The United States or Her Britannic Majesty shall also have
the right separately to terminate the present convention at any
time on giving twelve months’ notice to that effect in regard to
any British colony, foreign possession, or dependency, as specified
in Article IV, which may have acceded thereto,

(Art. VII.) The present convention shall be duly ratified by
the President of the United States, by and with the approval
of the senate thereof, and by Her High Britannic Majesty, and
-the ratifications shall be exchanged in London or in Washington.

In faith whereof, we the respective plenipotentiaries, have
signed this treaty and have hereunto affixed our seals.

Done in duplicate at Washington, the second day of March,
one thousand eight hundred and ninety-nine.

Joun Hay. (Seal)
JULIAN PAUNCEFOTE. (Seal)

(Treaty of 1902, Note by the Department of State.) The
following British colonies and possessions have acceded to the
convention between the United States and Great Britain of
March 2, 1899, relating to the tenure and disposition of real
and personal property: Cape, Fiji, Jamaica, Bahamas, Trinidad,
Barbados, Newfoundland, New Zealand, Leeward Islands, Falk-
land Islands, St. Helena, Sierra Leone, Gambia, Labaun, Mauri-
tius, Gold Coast Colony, South Rhodesia, Australia, British
Honduras, Grenada, North Borneo, British Guiana, Bermuda,
Lagos, British New Guinea, India, including the Native States,
‘Northern Nigeria, South Nigeria, St. Vincent, St. Lucia, Cyprus,

Ceylon, Hongkong, Straits Settlements, Transvaal, Orange River
Colony, Basutoland and Bechuanaland protectorates.
§ 624 WILLS i 542

§ 624, Greece.—(Treaty of 1902, Art. XI.) In the case
of the death of any citizen of the United States in Greece, or
of a Greek subject in the United States, without having any
known heirs or testamentary executors by him appointed, the
competent local authorities shall give information of the cir-
cumstance to the consular officers of the nation to which the
deceased belongs, in order that the necessary information may
be immediately forwarded to the parties interested.

In all that relates to the administration and settlement of
estates, the consular officers of the high contracting parties shall
have the same rights and privileges as those accorded in the
United States of America and Greece, respectively, to the con-
sular officers of the most favored nation.

§ 625. Guatemala.—(Treaty of 1901, Art. I.) Where on
the death of any person holding real property (or property not
personal), within the territories of one of the contracting par-
ties, such real property would, by the laws of the land, pass
to a citizen of the other, were he not disqualified by the laws
of the country where such real property is situated, such cit-
izen shall be allowed a term of three years, in which to sell the
same, this term to be reasonably prolonged if circumstances
render it necessary, and to withdraw the proceeds thereof, with-
out restraint or interference, and exempt from any succession,
probate or administrative duties or charges other than those
which may be imposed in like cases upon the citizens of the coun-
try from which such proceeds may be drawn.

(Art. II.) The citizens of each of the contracting parties
shall have full power to dispose of their personal property within
the territories of the other, by testament, donation, or otherwise,
and their heirs, legatees, and donees, being citizens of the other
contracting party, whether resident or non-resident, shall suc-
ceed to their personal property, and may take possession thereof
either by themselves or by others acting for them, and dispose
of the same at their pleasure, paying such duties only as the citi-
zens of the country where the property lies shall be liable to pay
in like cases.
543 TREATIES AND CONVENTIONS § 626

(Art. TIT.) In case of the death of any citizen of the United
States of America in Guatemala, or of any subject of Guate-
mala in the United States, without having in the country of his
decease any known heirs or testamentary executors by him
appointed, the competent local authorities shall at once inform
the nearest consular officer of the nation to which the deceased
person belonged of the circumstance in order that the necessary
information may be immediately forwarded to persons interested.

The said consular officer shall have the right to appear per-
sonally or by delegate in all proceedings on behalf of the absent
heirs or creditors, until they are otherwise represented.

(Art. IV.) The present convention shall come into effect
ten days after the day upon which the ratifications are exchanged
and shall remain in force for ten years after such ex-
change. In case neither of the contracting parties shall have
given notice to the other, twelve months before the expiration
of the said period of ten years, of the intention to terminate
the present convention, it shall remain in force until the expira-
tion of one year from the day on which either of the high con-
tracting parties shall have given such notice.

§ 626. Haiti—(Treaty of 1864, Art. IX.) The citizens of
each of the high contracting parties, within the jurisdiction of
the other, shall have power to dispose of their personal property
by sale, donation, testament, or otherwise; and their personal
representatives, being citizens of the other contracting party,
shall succeed to their personal property, whether by testament
or ab intestato. They may take possession thereof, either by
themselves or by others acting for them, at their pleasure, and
dispose of the same, paying such duty only as the citizens of
the country wherein the said personal property is situated shall
be subject to pay in like cases. In the absence of a personal
representative, the same care shall be taken of the property as
by law would be taken of the property of a native in a similar
case, while the lawful owner may take measures for securing
it. If a question as to the rightful ownership of the property
should arise among claimants, the same shall be determined by

‘the judicial tribunals of the country in which it is situated.
§ 627 . WILLS 544

§627. Hanseatic Republics—(Treaty of 1827, Art. VII.)
The citizens of each of the contracting parties shall have power
to dispose of their personal goods, within the jurisdiction of the
other, by sale, donation, testament, or otherwise; and their rep-
resentatives, being citizens of the other party, shall succeed
to their said personal goods, whether by testament, or ab intes-
tato, and they may take possession thereof, either by themselves
or others acting for them, and dispose of the same at their will,
paying such dues only as the inhabitants of the country wherein
said goods are shall be subject to pay in like cases; and if, in
the case of real estate, the said heirs would be prevented from
entering into the possession of the inheritance, on account of
their character of aliens, there shall be granted to them the
term of three years to dispose of the same, as they may think
proper, and to withdraw the proceeds without molestation, and
exempt from all duties of detraction, on the part of the govern-
ment of the respective states.

§ 628. Hesse.—(North German Confederation.) By the
treaty of 1844, provision is made almost identical with that in
the case of Bavaria.

§ 629. Honduras.—(Treaty of 1864, Art. VIII.) In what-
ever relates to the police of the ports, the lading and unlading
of ships, the safety of the merchandise, goods, and effects, the
succession to personal estates by will or otherwise, and the
disposal of personal property of every sort and denomination
by sale, donation, exchange, testament, or in any other manner
whatsoever, as also the administration of justice, the citizens
of the two high contracting parties shall reciprocally enjoy the
same privileges, liberties and rights as native citizens, and they
shall not be charged in any of these respects, with any higher
imposts or duties than those which are paid or may be paid by
native citizens; submitting of course to the local laws and regu-
lations of each country respectively.

If any citizen of either of the two high contracting parties
shall die without will or testament in any of the territories of the
other, the consul-general or consul of the nation to which the
545 TREATIES AND CONVENTIONS § 630

deceased belonged, or the representative of such consul-general
or consul in his absence, shall have the right to nominate cura-
tors to take charge of the property of the deceased so far as the
laws of the country will permit, for the benefit of the lawful
heirs and creditors of the deceased, giving proper notice of such
nomination to the authorities of the country.

§ 630. Italy—(Treaty of 1871, Art. XXII.) The citizens
of each of the contracting parties shall have power to dispose of
their personal goods within the jurisdiction of the other, by sale,
donation, testament or otherwise, and their representatives, being
citizens of the other party, shall succeed to their personal goods,
whether by testament or ab intestato, and they may take pos-
session thereof, either by themselves or others acting for them,
and dispose of the same at their will, paying such dues only as the
inhabitants of the country wherein such goods are shall-be sub-
ject to pay in like cases.

As for the case of real estate, the citizens and subjects of the
two contracting parties shall be treated.on the footing of the
most favored nation.

(Treaty of 1878, Art. XVI.) Incase of the death of a citizen
of the United States in Italy, or of an Italian citizen in the
United States, who has no known heir, or testamentary executor
designated by him, the competent local authorities shall give
notice of the fact to the consuls or consular agents of the nation
to which the deceased belongs, to the end that information may
be at once transmitted to the parties interested.

§ 631. Japan.—(Treaty of 1894, Art. I.) In whatever
relates to rights of residence and travel; to the possession of
goods and effects of any kind; to the succession to personal
estate, by will or otherwise, and the disposal of property of any
sort and in any manner whatsoever which they may lawfully
acquire, the citizens or subjects of each contracting party shall
enjoy in the territories of the other the same privileges, liberties,
and rights, and shall be subject to no higher imposts or charges
in these respects than native citizens or subjects or citizens or
subjects of the most favored nation.

35—Tuomp. WILLS.
§ 632 WILLS" 546

§ 632. Kongo.—(Treaty of 1891, ‘Art. II.) In all that
concerns the acquisition, succession, possession and alienation
of property, real and personal, the citizens and inhabitants of
each of the high contracting parties shall enjoy in the territories
of the other all the rights which the respective laws accord or
shall accord in those territories to the citizens and inhabitants
of the most favored nation. :

§ 633. Mecklenburg-Schwerin.—(Treaty of 1847, Art.
X.) The citizens or subjects of each party shall have power
to dispose of their personal property within the jurisdiction
of the other by sale, donation, testament or otherwise.

Their personal representatives being citizens or subjects of
the other contracting party shall succeed to their said personal
property, whether by testament or ab intestato. They may take
possession thereof, either by themselves, or by others acting for
them, at their will, and dispose of the same, paying such duty
only as the inhabitants of the country wherein the said personal
property is situated shall be subject to pay in like cases. In the
case of the absence of the personal representatives, the same
care shall be taken of the said property as would be taken of a
property of a native in like case, until the lawful owner may
take measures for receiving it.

If any question should arise among several claimants to which
of them the said property belongs, the same shall be finally de-
cided, by the laws and judges of the country wherein it is sit-
uated.

Whcre, on the decease of any person holding real estate within
the territories of one party, such real estate would by the laws
of the land descend on a citizen or subject of the other were
he not disqualified by alienage, such citizen or subject shall be
allowed a reasonable time to sell the same, and to withdraw
the proceeds without molestation, and exempt from all duties
of detraction on the part of the government of the respective
states.

The capitals end effects which the citizens or subjects of the
respective parties; in changing their residence shall be desirous
of removing from the place of their domicil shall likewise be
547 TREATIES AND CONVENTIONS § .634

exempt from all duties of detraction or emigration on the part
of their respective governments.

§ 634. Morocco.—(Treaty of 1836, Art. XXII.) If an
American citizen shall die in our country and no will shall ap-
pear, the consul shall take possession of his effects; and if there
be no consul, the effects shall be deposited in the hands of some
person worthy of trust, until the party shall appear who has
a right to demand them; but if the heir to the person deceased
be present, the property shall be delivered to him without inter-
ruption; and if a will shall appear, the property shall descend
agreeably to that will, as soon as the consul shall declare the
validity thereof.

§ 635. Netherlands.—(Treaty of 1878, Art. XV.) Incase
of death of any citizen of the United States in the Netherlands,
or of any subject of the Netherlands in the United States, with-
out having in the country of his decease any known heirs, or
testamentary executors by him appointed, or in case of minority
of the heirs, there being no guardian, the competent local au-
thorities shall at once inform the nearest consular officer of the
nation to which the deceased belongs, of the circumstance, in
order that the necessary information may be immediately for-
warded to parties interested. The said consular officer shall
have the right to appear personally or by delegate, in all proceed-
ings on behalf of the absent or minor heirs, or creditors, until
they are duly represented.

(Art. XVI.) The present convention shall not be applicable
to colonies of either of the high contracting parties, and shall
not take effect until the twentieth day after its promulgation
in the manner prescribed by the laws of the two countries.

It shall remain in force for five years from the date of the
exchange of ratifications.

In case neither of the contracting parties shall have given
notice twelve months before the expiration of the said period,
of its desire to terminate this convention, it shall remain in force
for one year longer, and so on from year to year, until the ex-
§ 636 WILLS 548

piration of a year from the day on which one of the parties
shall have given such notice for its termination.

(Art. XVII.) The present convention shall be ratified, and
the ratifications thereof shall be exchanged at the city of Wash-
ington, within six months from the date hereof, and sooner if
possible.

In testimony whereof, the respective plenipotentiaries have
signed this convention, and have hereunto affixed their seals.

Done in duplicate at Washington, in the English and Dutch
languages, on the twenty-third day of May, in the year of Grace
one thousand eight hundred seventy-eight.

Witiram MaxweE tu Evarts. (Seal)
R. Von PESTEL. (Seal)

§ 636. Ottoman Empire.—A protocol was proclaimed by
the President of the United States, October 29, 1874, as to the
right to hold real estate in Turkey. The law of the Ottoman
Empire provides as follows:

(Art. IV.) Foreigners have the privilege to dispose, by
donation or by testament, of that real estate of which such dis-
position is permitted by law.

As to that real estate of which they may not have disposed or
of which the law does not permit them to dispose by gift or
testament, its succession shall be governed in accordance with
Ottoman law.

§ 637. Paraguay.—(Treaty of 1859, Art. X.) In what-
ever relates to the police of the ports, the lading or unlading of
ships, the warehousing and safety of merchandise, goods and
effects, the succession to personal estates by will or otherwise,
and the disposal of personal property of every sort and denom-
ination, by sale, donation, exchange or testament, or in any
other manner whatsoever, as also with regard to the administra-
tion of justice, the citizens of each contracting party shall enjoy
in the territories of the other, the same privileges, liberties and
rights as native citizens, and shall not be charged, in any of
these respects, with any other or higher imposts or duties than
549 TREATIES AND CONVENTIONS ' § 638

those, which are or may be paid by native citizens, subject always
to the local laws and regulations of such territories.

In the event of any citizen of either of the two contracting
parties dying without will or testament in the territory of the
other contracting party, the consul-general, consul or vice-consul
of the nation to which the deceased may belong, or, in his absence,
the representative of such consul-general, consul or vice-consul,
shall, so far as the laws of each country will permit, take charge
of the property which the deceased may have left, for the benefit
of his lawful heirs and creditors, until an executor or adminis-
trator be named by the said consul-general, consul or vice-consul,
or his representative.

§ 638. Persia—(Treaty of 1856, Art. VI.) In case of a
citizen or subject of either of the contracting parties dying
within the territories of the other, his effects shall be delivered
up integrally to the family or partners in business of the de-
ceased, and in case he has no relations or partners, his effects
in either country shall be delivered up to the consul or agent
of the nation of which the deceased was a subject or citizen,
so that he may dispose of them in accordance with the laws of
his country.

§ 639. Prussia.—(Treaty of 1828, Art. XIV.) The citi-
zens or subjects of each party shall have power to dispose of
their personal goods within the jurisdiction of the other, by
testament, donation, or otherwise, and their representatives,
being citizens or subjects of the other party, shall succeed to
their said personal goods, whether by testament, or ab intestato,
and may take possession thereof, either by themselves, or by
others acting for them, and dispose of the same, at their will,
paying such dues only as the inhabitants of the country wherein
the said goods are, shall be subject to pay in like cases. And
in the case of the absence of the representative, such care shall
be taken of the said goods, as would be taken of the goods of
a native, in like case, until the lawful owner may take measures
for receiving them. And if question should arise among sev-
eral claimants, to which of them said goods belong, the same shall

é
§ 640 WILLS 550

be decided finally by the laws and judges of the land wherein
the said goods are. And where, on the death of any person
holding real estate, within the territories of the one party, such
real estate would, by the laws of the land, descend on a citizen
or subject of the other, were he not disqualified by alienage,
such citizen or subject shall be allowed a reasonable time to
sell the same and to withdraw the proceeds without molestation,
and exempt from all duties of detraction on the part of the
government of the respective states. But this article shall not
derogate, in any manner, from the force of the laws already
published, or hereafter to be published by His Majesty the King
of Prussia to prevent the emigration of his subjects.

§ 640. Roumania.—(Treaty of 1881, Art. XV.) In case of
the death of any citizen of the United States in Roumania, or
oftany Roumanian in the United States, without having any
known heirs or testamentary executor by him appointed, the
competent local authorities shall give information of the cir-
‘cumstance to the consuls or consular agents of the nation to
which the deceased belongs, in order that the necessary informa-
tion may be immediately forwarded to parties interested.

Consuls-general, consuls, vice-consuls, and regular agents
shall have the right to appear, personally or by delegates, in all
proceedings on behalf of the absent or minor heirs, or creditors,
until they are duly represented.

$641. Russia—(Treaty of 1832, ‘Art. X.) The citizens
and subjects of each of the high contracting parties shall have
power to dispose of their personal goods within the jurisdiction
of the other, by testament, donation, or otherwise, and their
representatives, being citizens or subjects of the other party,
shall succeed to their said personal goods, whether by testament
or ab intestato, and may take possession thereof, either by them-
selves, or by others acting for them, and dispose of the same,
at will, paying to the profit of the respective governments such
dues only as the inhabitants of the country wherein the said
goods are, shall be subject to pay in like cases. And in case of
the absence of the representative, such care shall be taken of the
551 TREATIES AND CONVENTIONS § 642

said goods, as would be taken of the goods of a native of the
same country, in like case, until the lawful owner may take
measures for receiving them. And if a question should arise
among several claimants, as to which of them said goods belong,
the same shall be decided finally by the laws and judges of the
land wherein the said goods are. And where, on the death of
any person holding real estate, within the territories of one of
the high contracting parties, such real estate would by the laws
of the land, descend on a citizen or subject of the other party,
who by reason of alienage may be incapable of holding it, he
shall be allowed the time fixed by the laws of the country, and
in case the laws of the country, actually in force may not have
fixed any such time, he shall then be allowed a reasonable time
to sell such real estate and to withdraw and export the proceeds
without molestation, and without paying to the profit of the
respective governments any other dues than those to which the
inhabitants of the country wherein said real estate is situated
shall be subject to pay in like cases. But this article shall not
derogate in any manner from the force of the laws already
published, or which may hereafter be published by His Majesty
the Emperor of all the Russias, to prevent the emigration of
his subjects.

§ 642. Saxony.—(Treaty of 1845, Art. II.) Where, on
the death of any person holding real property within the terri-
tories of one party, such real property would, by the laws of
the land, descend on a citizen or subject of the other were he
not disqualified by alienage——or where such real property has
been devised by last will and testament to such citizen or sub-
ject, he shall be allowed a term of two years from the death
of such person, which term may be reasonably prolonged ac-
cording to circumstances,—to sell the same and to withdraw
the proceeds thereof without molestation, and exempt from all
duties of detraction on the part of the government of the respec-
tive states.

(Art. III.) The citizens or subjects of each of the contracting
parties shall have power to dispose of their personal property
§ 643 WILLS 552

within the states of the other, by testament, donation or other-
wise, and their heirs, being citizens or subjects of the
other contracting party, shall succeed to their said personal
property, whether by testament or ab intestato, and may take
possession thereof, either by themselves or by others acting for
them, and dispose of the same at their pleasure, paying such
duties only as the inhabitants of the country, where the said
property lies, shall be liable to pay in like cases.

Articles IV and V are almost identical with the same articles
in the case of Bavaria.

§ 643. Servia—(Treaty of 1881, Convention of Com-
merce and Navigation, Art. II.) In all that concerns the right
of acquiring, possessing or disposing of every kind of property,
real or personal, citizens of the United States in Serbia and
Serbian subjects in the United States shall enjoy the rights
which the respective laws grant or shall grant in each of these
states to the subjects of the most favored nation.

Within these limits and under the same conditions as the sub-
jects of the most favored nation, they shall be at liberty to
acquire and dispose of such property, whether by purchase, sale,
donation, exchange, marriage contract, testament, inheritance,
or in any other manner whatever, without being subject to any
taxes, imposts, or charges whatever other or higher than those
which are or shall be levied on natives or on the subjects of
the most favored state.

They shall likewise be at liberty to export freely the proceeds
of the sale of their property, and their goods in general, without
being subjected to pay any other or higher duties than those
payable under similar circumstances by natives or by subjects
of the most favored state.

(Treaty of 1881, Consular Convention, Art. XI.) In the
case of the death of any citizen of the United States in Serbia, or
of a Serbian subject in the United States, without having any
known heirs or testamentary executors by him appointed, the
competent local authorities shall give information of the circum-
stance to the consuls or consular agents of the nation to which
553 TREATIES AND CONVENTIONS § 644

the deceased belongs, in order that the necessary information may
be immediately forwarded to the parties interested.

Consuls-general, consuls, vice-consuls and consular agents
shall have the right to appear, personally or by delegate, in all
proceedings on behalf of the absent or minor heirs or creditors
until they are duly represented.

§ 644. Spain.—(Treaty of 1902, Art. III.) Where, on the
death of any person holding real property (or property not
personal), within the territories of one of the contracting par-
ties, such real property would, by the laws of the land, pass to
a citizen or subject of the other, were he not disqualified by the
laws of the country where such real property is situated, such
citizen or subject shall be allowed a term of three years in which
to sell the same, this term to be reasonably prolonged if circum-
stances render it necessary, and to withdraw the proceeds thereof,
without restraint or interference, and exempt from any succes-
sion, probate or administrative duties or charges other than
those which may be imposed in like cases upon the citizens or
subjects of the country from which such proceeds may be drawn.

The citizens or subjects of each of the contracting parties
shall have full power to dispose of their personal property within
the territories of the other, by testament, donation, or otherwise;
and their heirs, legatees, and donees, being citizens or subjects
of the other contracting party, whether resident or nonresident,
shall succeed to their said personal property, and may take pos-
session thereof either by themselves or by others acting for
them, and dispose of the same at their pleasure, paying such
duties only as the citizens or subjects of the country where the
property lies, shall be liable to pay in such cases.

In the event that the United States should grant to the citizens
or subjects of a third power the right to possess and preserve
real estate in all the states, territories and dominions of the
Union, Spanish subjects shall enjoy the same rights; and, in
that case only, reciprocally, the citizens of the United States
shall also enjoy the same rights in Spanish dominions.

(Art. XXVI.) In case of the death of a citizen or subject of
§ 645 WILLS 554

one of the parties within the territories or dominion of the other,
the competent local authorities shall give notice of, the fact to
the consuls or consular agents of the nation to which the de-
ceased belongs, to the end that information may be at once
transmitted to the parties interested.

(Art. XXVII.) The consuls-general, consuls, vice-consuls or
consular agents of the respective high contracting parties shall
have, under the laws of their country and the instructions and
regulations of their own government so far as compatible with
local laws, the right of representing the absent, unknown or
minor heirs, next of kin or legal representatives of the citizens
or subjects of their country, who shall die within their consular
jurisdiction; as well as those of their countrymen dying at sea
whose property is brought within their consular district; and
of appearing either personally or by delegate in their behalf in
all proceedings relating to the settlement of their estate until
such heirs or legal representatives shall themselves appear.

Until such appearance the ‘said consular officer shall be per-
mitted, so far as compatible with local laws, to perform all the
duties prescribed by the laws of their country and the instruc-
tions and regulations of their own government for the safe-
guarding of the property and the settlement of the estate of
their deceased countrymen. —

In every case the effects and property of such deceased citizens
or subjects shall be retained within the consular district for
twelve calendar months by said consuls-general, consuls, vice-
consuls or consular agents or by the legal representatives or heirs
of the deceased during which time the creditors, if any, of the
deceased shall have the right to present their claims and demands
against the said effects and property, and all questions arising
out of such claims or demands shall be decided by the local
judicial authorities in accordance with the laws of the country
to which said officers are commissioned.

§ 645. Sweden and Norway.—(Treaty of 1783, Art. VI.)
The subjects of the contracting parties in the respective states
may freely dispose of their goods and effects, either by testament,

»~
555 TREATIES AND CONVENTIONS § 646

donation, or otherwise in favor of such persons as they think
proper; and their heirs in whatever place they shall reside, shall
receive the succession even ab intestato, either in person or by
their attorney, without having occasion to take out letters of
naturalization. These inheritances as well as the capitals and
effects, which the subjects of the two parties in changing their
dwelling, shall be desirous of removing from the place of their
abode shall be exempted from all duty, called “droit de detrac-
tion” on the part of the government of the two states, respect-
ively. But it is at the same time agreed that nothing contained
in this article shall in any manner derogate from the ordinances
published in Sweden against emigrations or which may here-
after be published, which shall remain in full force and vigor.
The United States on their part or any of them, shall be at lib
erty to make, respecting this matter, such laws as they think
proper. (Terminated by its own limitations in 1796; articles
revived by treaty of 1827.1.

§ 646. Switzerland.—(Treaty of 1850, Art. V.) The citi-
zens of each one of the contracting parties shall have power to
dispose of their personal property, within the jurisdiction of the
other, by sale, testament, donation or in any other manner; and
their heirs, whether by testament or ab intestato, or their suc-
cessors, being citizens of the other party, shall succeed to the
said property or inherit it, and they may take possession thereof,
either by themselves or by others acting for them; they may
dispose of the same as they may think proper, paying no other
charges than those to which the inhabitants of the country
wherein the said property is situated shall be liable to pay in a
similar case. In the absence of such heir, heirs, or other suc-
cessors, the same care shall be taken by the authorities for the
preservation of the property that would be taken for the preser-
vation of the property of a native of the same country, until the
lawful proprietor shall have had time to take measures for pos-
sessing himself of the same.

The foregoing provisions shall be applicable to real estate
situated within the states of the American Union, or within the
§ 647 WILLS 556

cantons of the Swiss Confederation, in which foreigners shall be
entitled to hold or inherit real estate.

But in case real estate, situated within the territories of one

of the contracting parties, should fall to a citizen of the other
party, who, on account of his being an alien, could not be per-
mitted to hold such property in the state or in the canton in
which it may be situated, there shall be accorded to the said
heir or other successor such term as the laws of state or canton
will permit to sell such property; he shall be at liberty at all
times to withdraw and export the proceeds thereof without diffi-
culty and without paying to the government any other charges
than those in a similar case would be paid by an inhabitant of
the country in which the real estate may be situated.
. (Art. VI.) Any controversy that may arise among the claim-
ants to the same succession, as to whom the property shall belong,
shall be decided according to the laws and by the judges of the
country in which the property is situated.

§ 647. Tripoli—(Treaty of 1805, Art. XX.) Should any
citizen of the United States of America die within the limits
of the Regency of Tripoli, the Bashaw and his subjects shall not
interfere with the property of the deceased; but it shall be under
the immediate direction of the consul, unless otherwise disposed
of by will. Should there be no consul, the effects shall be de-
posited in the hands of some person worthy of trust, until the
party shall appear who has a right to demand them, when they
shall render an account of the property. Neither shall the Ba-
shaw or his subjects give hinderance in the execution of any
will that may appear.

§ 648. Wurtemberg.—(Treaty of 1844, Art. II.) Where,
on the death of any person holding real property within the ter-
ritories of one party, such real property would, by the laws of
the land, descend on a citizen or subject of the other were he
not disqualified by alienage, such citizen or subject shall be
allowed a term of two years to sell the same, which term may
be reasonably prolonged according to circumstances, and to
557, TREATIES AND CONVENTIONS § 649

withdraw the proceeds thereof, without molestation and exempt
from all duties of detraction.

(Art. III.) The citizens or subjects of each of the contracting
parties shall have power to dispose of their personal property
within the states of the other, by testament, donation, or other-
wise, and their heirs, legatees, and donees, being citizens or sub-
jects of the other contracting party, shall succeed to their said per-
sonal property, and may take possession thereof, either by them-
selves, or by others acting for them,—and dispose of the same at
their pleasure, paying such-duties only as the inhabitants of the
country where the said property lies shall be liable to pay in
like cases.

(Art. IV.) In case of the absence of the heirs, the same care
shall be taken, provisionally, of such real or personal property,
as would be taken in a like case of property belonging to the
natives of the country until the lawful owner, or the person
who has the right to sell the same according to Article I], may
take measures to receive or dispose of the inheritance.

(Art. VI.) All the stipulations of the present convention
shall be obligatory in respect to property already inherited or
Sequeathed, but not yet withdrawn from the country where the
same is situated at the signature of this convention.

§ 649. Hague Convention.—(Hague Convention of 1899,
Convention with Respect to the Laws and Customs of War
on Land, Art. XIX.) The wills of prisoners of war are received
or drawn up on the same conditions as for soldiers of the na-
tional army.

The same rules shall be observed regarding death certificates,
‘ as well as for the burial of prisoners of war, due regard being
paid to their grade and rank.
ART.
Arr.
ART.
ART.
ART.

ART.
ART.
ART.

ART.

ART.
ART.

ART,
ART.
ART.

ART.
ART.
ART.
ART.

ART,
ART.

ART.
ART.

CHAPTER XXX

FORMS AND PRECEDENTS FOR PARTICULAR CLAUSES

OF Be hers

St

10.
11.

12.
13.
14.

Le.
16.
17,
18.

ic.
20.

21.
22.

Introduction, § 655.

Commencement Clauses, §§ 656, 657.

Specific Legacies and Devises, §§ 658-669.

General Legacies and Devises, §§ 670-675.

Demonstrative, Cumulative and Substitutional Gifts,

 §§ 676-679.

Legacies Charged, §§ 680-686.

Residuary Legacies and Devises, §§ 687-703.

Bequests and Devises to Certain Kinds of Benefi-
ciaries, §§ 704-742.

Bequests and Devises of Certain Kinds of Property,
§§ 743-788.

Creation of Different Kinds of Estates, §§ 789-843.

Provision as to Time of Vesting. Contingent Es-
tates, §§ 844-862.

Gifts to Charities, §§ 863-889.

Conditions and Restrictions, §§ 890-909.

Provisions as to Lapse, Abatement and Priority of
Legacies, §§ 910-924.

Annuities, §§ 925-933,

Trusts, §§ 934-995.

Powers of Trustees, §§ 996-1054.

Powers of Executors and Provisions as to Manage-
ment of Estate, §§ 1055-1096,

Provisions as to Appointment of Executors and Trus-
tees and Guardians, §§ 1097-1118.

Miscellaneous Provisions, §§ 1119-1143.

Attestation and Testimonium Clauses, §§ 1144-1147.

Codicils, §§ 1148-1164.

558

\
559 FORMS FOR PARTICULAR CLAUSES § 655

ArticLe 1. INTRODUCTORY

SECTION
655. Generally.

$655. Generally.—It is the purpose of this chapter to give
a complete and comprehensive set of forms and precedents, on
practically all the subjects which may arise in drafting a will.

The forms in this collection are of two classes. A large
number have been written and selected for the purpose of serv-
ing as guides. These are believed to be such as will fully ac-
complish the purpose intended, so far as contingencies can be
provided for without actual adjudication..

Other of the forms are taken from adjudicated wills and have
been held good as to the particular point on which adjudication
was sought and as to which they-are used as illustrations. Of
the adjudicated forms, some are exact quotations from the will
from which they were taken, others have been amended or cor-
rected in conformity with suggestions from the opinion of the
court which passed upon them. Not every one of these ad-
judicated forms is a perfect model, but it is believed that the
fact that they have been tested in court will render them of
great service in connection with the model forms. It is possible
that the form which has been adjudicated in one state might not
receive the same interpretation in other states, and the practi-
tioner in making use of such forms should bear this in mind.

ARTICLE 2. COMMENCEMENT CLAUSES

SECTION SECTION
656. Commencement clauses of a will. 657. Commencement of codicil.

§ 656. Commencement clauses of a will.—(a) This is the
last will of of i

(b) Know all men by These Presents, That I,
make this my last will and testament.

(a) ol of [late of ], hereby revoke all former
wills and testamentary instruments made by me, and declare
this to be my last will.

(d) Be it remembered that I, of , do make this my
last will and testament, intending hereby to dispose of all the

 

 

of

 

) do

 

 

 

 

 

 
§ 657 WILLS 560

property over which I shall at my decease have a right of dis-
position, by appointment, will, or otherwise.

(e) I, of , in the state of , do make, publish
and declare this my last will and testament, hereby revoking
any and all former wills by me heretofore made.*

(f£) Know all men by These Presents, That I, ; , of :
being of sound and disposing mind and memory, do hereby make
this my last will and testament, revoking all wills and codicils
heretofore made by me at any time.

(g) This is the last will of me, of , intended to oper-
ate on, and dispose of, all my real and personal property in the
state of I revoke all wills, codicils, and testamentary dis-
positions heretofore made by me; but I declare that this will
shall take effect concurrently with, but independently of, an-
other will of even date herewith, relating to property not in-
tended to be affected by this will, situate at , in the Domin-
ion of Canada.?

(h) In the Name of God, Amen; I, of , being of
sound and disposing mind and memory, and mindful of the un-
certainty of life and of the objects of my bounty, do make, pub-
lish and declare this to be my last will and testament, in manner
following, that is to say.

 

 

 

 

 

 

 

 

 

 

 

§ 657. Commencement of codicil—(a) Know all men by
‘These Presents, that I, of , do make this codicil to the
instrument dated heretofore made, published and declared
by me as and for my last will and testament; and I hereby con-
firm and ratify the aforesaid last will and testament in all its
provisions save as changed by this codicil.

Cb) 1, of , make this codicil to my last will dated

, hereby ratifying and confirming such will in all respects,
except as changed by this codicil.

 

 

 

 

 

 

1See ante, § 462, on revocation by in relation to property in different
subsequent will. jurisdictions,
2See ante, § 29, on separate wills
561 FORMS FOR PARTICULAR CLAUSES § 658

ArtICcLE 3. Sprciric LEGACIES AND DEVISES

SECTION SECTION
658. Specific bequests. 665. Bequest of business to son.
659. Bequest of bonds, 666. Confirming daughter’s right to e
660. Bequest of cash on hands to deposit in her name in a sav-
wife. ings bank,
661. Bequest to wife of personal and 667. Devise of lot.
household effects. 668. Devise of dwelling-house to wife
662. Specific legacy in proceeds of for life, with remainder to
bonds. sons,
663. Specific legacy of stock. 669. Devise of farm with crops, live
664. Specific legacy—Gift of stock in stock, implements, etc.

trust for grandson,

$658. Specific bequests.°—(a) I give and bequeath to
my twenty shares of stock in the First National Bank
of , the certificate of which is numbered , meaning and
intending the same to be a specific legacy.*

(b) I bequeath to of , the sum of dollars in
the United States three per cent. bonds now registered and
standing in my name.’ (c) I bequeath to my watch and
all my jewelry and personal ornaments.

 

 

 

 

 

 

 

(d) I bequeath to all articles of personal or domestic or
household use or ornament belonging to me.® (e) I bequeath
to all articles of personal, domestic, or household use or
ornament belonging to me which at my decease may be in my
house at , or in any other house which may be my principal
place of residence. (e) I bequeath to a mortgage for the
sum of dollars made to me by of , with the notes
secured thereby, and all interest accrued thereon which may be
owing to me at the time of my death.’

 

 

 

 

 

 

 

§ 659. Bequest of bonds.—I give and bequeath to my

 

 

 

 

 

 

 

friend, , ten bonds of the Company, issued in and

redeemable in The numbers of said bonds are ——, :

’ ’ ’ =, 9 9 ; . Each of them
3See ante, § 139. 6 See ante, § 217.
4See ante, § 218. 7 See ante, § 219.

5 See ante, § 219.

36—Tuomp. WILLs.
§ 660 WILLS 562

is of the denomination of one thousand dollars, and I mean
and intend this bequest as a specific one, but if before my de-
cease I shall dispose of such bonds, then in lieu thereof I give
and bequeath to the said the sum of ten thousand dollars,
or I direct my executors to purchase from the proceeds of my
estate bonds of equivalent value to make good the deficiency.®

 

§ 660. Bequest of cash on hands to wife.—I bequeath unto
my wife, , absolutely, all my ready money or cash on hands,
including money (to an amount not exceeding dollars) in
the hands of my banker, or any agent.°

 

 

§ 661. Bequest to wife of personal and household effects.
—I bequeath to my wife all articles of personal, domestic, or
household use or ornament, including my furniture, books, pic-
tures, provisions, consumable stores, and all household effects
which at the time of my death shall be in, about, or belonging
to the house in which I may reside at my decease.*°

§ 662. Specific legacy in proceeds of bonds.—I direct my
executor to pay to D. R. K. one-half of the proceeds of bonds
I hold in the National Life Insurance Company of Vermont;
to Mrs. H. C. L., residing near Parker, Spottsylvania County,
Virginia, the remaining proceeds of same bonds.**

§ 663. Specific legacy of stock.—I give and bequeath to
J. P. P. 125 shares of the capital stock of the Rand Drill Com-
pany of New York, a corporation, together with all the rights
and privileges which may now or hereafter appertain to the
same.”

§ 664. Specific legacy—Gift of stock in trust for grandson.
—I also give and bequeath eighty-one shares of the Provident
Life and Trust Company of Philadelphia, now standing in my

8 See ante, § 219. 382, 72 Atl. 631, 14 Prob. Rep. Ann
9See ante, § 215. 76.
10 See ante, § 217. 12 Thayer v. Paulding, 200 Mass.

11In re Black’s Estate, 233 Pa. 98, 85 N. E. 868, 14 Prob. Rep. Ann.
222. See also ante, § 218.
563 FORMS FOR PARTICULAR CLAUSES § 665

name on the books of said company, to the Fidelity Insurance
Trust and Safe Deposit Company of Philadelphia, in trust, to
collect and receive the interest or dividends arising from the
aforesaid eighty-one shares of the Provident Life and Trust
Company, when due and payable, and apply the same to the
support and maintenance of my grandson, J. R. of Philadelphia,
for and during the term of his natural life; and from and after
the death of my said grandson, J. R., in further trust to assign
and transfer the aforesaid eighty-one shares of the Provident
Life and Trust Company of Philadelphia, to my sister, Harriet
M. Severns, formerly Harriet M. Williams, of Philadelphia, her
heirs and assigns forever.*

§ 665. Bequest of business to son.—I bequeath to my son
the good will of my trade or business, carried on by me
at , and the stock in trade, fixtures, and effects belonging
thereto, and the benefit of all contracts subsisting in respect
of the said business, and all book debts and moneys due to me
in respect thereof, or standing to the credit of my business ac-
count at my bank at the time of my decease; my said son to dis-
charge and indemnify my general estate from all debts and lia-
bilities due or subsisting in respect of the said business at my
decease, and, if required by my representatives, to enter into a
bond or covenant in that behalf.

 

 

§ 666. Confirming daughter’s right to a deposit in her
name in a savings bank.—Whereas I have deposited in the
Savings Bank at the sum of dollars in the name
of my minor daughter, , now, in order to avoid any ques-
tion as to her absolute right to the same, I hereby bequeath all
my right and interest to or in said deposit, and all interest ac-
cumulated thereon which may be due at my death, to my said
daughter absolutely.

 

 

 

 

 

§ 667. Devise of lot.—I give and devise to my son, :
lot one, block two, Park Addition to Indianapolis, Indiana.

18 Fidelity Trust Company’s Ap- 14See ante, § 137.
peal (Pa.), 2 Eastern Rep. 261, 4
Am. Prob. 556.
§ 668 WILLS 564

§ 668. Devise of dwelling-house to wife for life, with re-
mainder to sons.—I devise my dwelling-house, garden, and
lands appurtenant and heretofore used by me in connection
therewith, and all the furniture, household goods and effects
of all kinds in and about the same, to my wife, , during
her life, and from and after her decease to my sons, and
, their heirs and assigns, forever, in equal shares, as ten-
ants in common.”

 

 

 

§ 669. Devise of farm with crops, live stock, implements,
etc.—I devise and bequeath unto my farm at , in
the county of , and the farm-house, farm-buildings, and
all the lands belonging thereto or connected therewith, being the
same that I purchased of —; together with the furniture,
household goods and effects, and consumable stores and pro-
visions, the crops and produce growing or gathered, and the
live stock, tools, implements, and other things which shall at the
time of my death be in, upon, about, or belonging to the said
farm or the said farm-house, buildings, and premises.

 

 

 

ARTICLE 4. GENERAL LEGACIES AND DeEvisEs"®

SECTION SECTION
670. Pecuniary legacies. 673. Legacy to wife to be paid in in-
671. Bequest to wife for immediate stalments.

use. 674. General gifts of estate in shares.
672. Legacies to wife—One payable 675. General devise.

immediately.

 

§ 670. Pecuniary legacies—(a) I bequeath to the
sum of dollars.” (b) I bequeath the following legacies,
namely, the sum of dollars to , the sum of dol-
lars to , and the sum of dollars to

 

 

 

 

 

 

 

§ 671. Bequest to wife for immediate use.—I bequeath to
my wife, , the sum of dollars, to be paid to her within
one month (or as soon as may be) after my decease, for her
immediate needs.

 

 

15 See ante, §§ 233, 236. 17 See ante, § 250.
16 See ante, §§ 136, 138.
565 FORMS FOR PARTICULAR CLAUSES § 672

$672. Legacies to wife—One payable immediately.—I
give to my wife, : dollars, to be paid immediately, or
as soon as may be, after my death, for her immediate use; I also
give to her dollars, to be paid within months after
my death, with interest at the rate of per cent. per annum
from my death, payable quarterly in the meantime."®

 

 

 

 

 

§ 673. Legacy to wife to be paid in instalments.—I be-
queath to my wife, , the sum of dollars, to be paid to
her by four equal instalments, the first immediately after my
death, and the others respectively at the end of three, six and
nine months after my death.

 

 

§ 674. General gifts of estate in shares.—I will and direct
that all the property of which I may be seised and possessed at
the time of my death shall be divided into six equal shares. Two
of said equal shares I give, devise and bequeath to my wife, her
heirs and assigns forever. One of said shares I give, devise and
bequeath to my son John, his heirs and assigns forever; one of
said shares I give, devise and bequeath to my daughter Mary,
her heirs and assigns forever; one of said shares I give, devise
and bequeath to my executors, to be used for the support of
my daughter Anna in their discretion until she becomes twenty-
one years of age, and then to be paid over to her absolutely, to
have and hold for herself, her heirs and assigns forever; the
remaining share I give, devise and bequeath to the trustees of
the Warren Methodist Episcopal Church at Billtown, Indiana,
to be used for the maintenance of the church, and the payment
of the pastor’s salary, in their discretion.”

 

§ 675. General devise.—I devise to my wife, : , forty
acres of land.?°

18 See ante, § 394, 20 See ante, § 136.
19 See ante, § 194,
§ 676 WILLS 566

ArTICLE 5. DEMONSTRATIVE, CUMULATIVE, AND SUB-
STITUTIONAL GIFTS

SECTION SECTION

676. Demonstrative legacies. 678. Cumulative legacies.

677. Demonstrative legacy with pro- 679. Substitutional legacy.
viso for ademption.

§ 676. Demonstrative legacies.*—(a) I will and ordain
that my executors shall collect the insurance policies on my
life. And from this said amount, pay the sum of two hundred
dollars each to W., H., and L., children of my deceased sister,
A. The sum of three hundred dollars to be divided among
the children of my deceased sister H.”

(b) LIalso give to my said wife the sum of $50,000 which may
be invested in bank stock, Fort Edward and Wyoming, Iowa,
and in bonds.”

§ 677. Demonstrative legacy, with proviso for ademption.
—I bequeath the sum of dollars to , to be paid out of
the proceeds of sale of a sufficient part of the sum of dol-
lars of the United States four per cent. bonds on this day stand-
ing in my name: provided if at the time of my death there shall
not be any, or not be a sufficient amount of, such bonds standing
in my name to provide for payment of said legacy of dol-
lars, then I direct that the whole of the deficient part of such
sum shall be made good and paid out of my residuary personal
estate.

 

 

 

 

§ 678. Cumulative legacies.*—(a) Whereas in and by my
last will and testament I gave to a legacy of one thousand
dollars, I by this codicil now give to him a second legacy of two
thousand dollars, making a total of three thousand dollars.

(b) Each and every one of the legacies given by this codicil
are in addition to the legacies given the same persons in my will

 

21 See ante, § 140. Y. 421, 35 N. E. 660, 8 Am. Prob.
22 White v. White, 73 S. Car. 261, 472.

53 S. E. 371, 11 Prob. Rep. Ann. 525. 24 See ante, § 141.
23In re Hodgman’s Estate, 140 N.
567 FORMS FOR PARTICULAR CLAUSES § 679

of date That is to say, the legacies in this codicil are ad-
ditional, and not substitutional.

 

§ 679. Substitutional legacy.*—I give to a legacy of
ten thousand dollars, and this is in lieu of and a substitute fer
the legacy of six thousand dollars which was given him by the
clause of my will dated

 

 

 

ARTICLE 6. LEGACIES CHARGED

‘SECTION SECTION

680. Legacies charged on estate. 684. Charge of legacies.

681. Legacies charged on realty. 685. Legacy charged on specific real

682. Legacies charged upon land. estate.

683. Charge to secure payment of 686. Charge of support for son.
legacies.

§ 680. Legacies charged on estate.—I devise and bequeath
to M. all my real estate, and my interest in the vessels and
I bequeath to M. D. all my mortgages, notes, bends, or
other securities, with the understanding that she shall pay to
B. S. the sum of five hundred dollars, and to A. L. the sum of
one hundred dollars out of their portion of my estate.”

 

 

§ 681. Legacies charged on realty.—I give and bequeath
to my daughter C. the sum of one thousand dollars, to be paid
to the said C. two years after my decease, the same to be paid
out of my farm by my executor. And my daughter A. shall be
paid out of my said farm, by my executor, the sum of one thou-
sand dollars, the sum to be paid ten years after C. is paid her
sum herein provided, or twelve years after my decease.

I also give and bequeath to my son C. all my real estate and
personal property after the payment of my just debts and funeral
expenses, together with the expense of settling my estate, and
the payment of the above named legacies, to have and to hold ;
the said farm and all remaining and unappropriated personal
property to him and his heirs and assigns forever.”

25 See ante, § 142. Mich. 293, 101 N. W. 525, 10 Prob.
26 Broadbridge v. Sackett, 138 Rep. Ann. 311. See also ante, § 325.
27 Conkling v. Weatherwax, 173 N.
§ 682 WILLS 568

$582. Legacies charged upon land.—Said legacies to be
paid by my executor.out of my estate. I give and devise all the
residue of my estate, both real and personal, to my two children,
A. H. N. and R. S. M., Jr., to be divided equally between them
and to their heirs, forever.”*

§ 683. Charge to secure payment of legacies—And the
better to secure the payment of these my daughters’ portions, I
do hereby direct that if the funds hereinafter particularly ap-
propriated for the payment of debts and legacies shall be in-
sufficient for the payment of debts and legacies, my estate gen-
verally must be charged to make up the deficiency to my said
daughters.”°

§ 684. Charge of legacies.—All the rest, and residue of
my estate that shall remain after the satisfaction of the above
legacies and payment of my just debts and funeral expenses, I
give, devise and bequeath, in equal shares, to M. E. S., A. M. H.
aud S. M. $.**

§ 685. Legacy charged on specific real estate.—I hereby
bequeath to the sum of dollars, and I make the pay-
ment of the same a charge upon the real estate situate on
street, at , herein devised to ——.**

 

 

 

 

§ 686. Charge of support for son.—I give and bequeath
to my beloved wife, Sarah, during her natural life, all of my
estate, both real and personal, of which I may die possessed,
with full power to sell, convey, and dispose of all and any of
said property and invest and reinvest the proceeds thereof as to
her may seem best for the comfort and support of herself and

Y. 43, 65 N. E. 855, 8 Prob. Rep. 29 Snyder v. Baker, 5 Mackey (16
Ann. 424. See also ante, § 321. D. C.) 443, 6 Am. Prob. 552.

28 Herdlitchka v. Foss, 2 Nebr. 30 Simonsen v. Hutchinson, 231 It.
(Unof.) 428, 89 N. W. 300, 7 Prob. 508, 83 N. E. 183, 13 Prob. Rep. Ann.
Rep. Ann, 531. 366.

31 See ante, § 324.
569 FORMS FOR PARTICULAR CLAUSES § 686

our son, Henry B., whose support during his natural life is
herewith charged against said estate until the death of said
Henry B., unless he, said Henry B., shall hereafter marry, in
which latter case said Henry B. shall be placed upon the same
footing as my other children to a share in my said estate, and if
my son Henry B. shall survive my said wife, and be unmarried,
all of said real and personal estate remaining shall go to said
son, Henry B., during his natural life, for his, said Henry’s,
support, and at his death, if he be then unmarried, the remainder
of said estate to be divided equally between my legal surviving
heirs, share and share alike, and to the living heirs of my im-
mediate heirs, as the case may be. * * * Said estate subject
to all my just debts, and the expense of my last sickness and
funeral and burial. And furthermore all transfers, sales, and
conveyances to be made by my said wife as aforesaid, amounting
to the sum of twenty-five dollars or upward, at any one time,
shall be first approved by the executor hereinafter named, ex-
cept, of course, such property as by law becomes the property
of a widow absolutely.”

ArticLe 7. RestpuAry LEGACIES AND DEVISES

SECTION SECTION
687. Residue of personal estate. 697. Residuary devise and bequest
688. Residuary clause. specifying property, which
689. Residue of personalty to wife. gives residuary legatee no
690. Residue of personalty to chil- right to lapsed legacies.
dren as a class with provision 698. Residue of realty and personalty
against lapse. to children and issue of de-
691. Residue of personalty to chil- ceased children.
dren with substitution of is- 699. Residue of real and personal
sue. estate to trustees.
692. Residuary bequest per capita. 700. Residue of real estate to son-
693. Residuary legacy to daughters. for life with remainder to
694. Legacy of residue of personalty trustees.
to several in equal shares. 701. Residue according to law—No
695. Advances to a son brought into power of sale.
hotchpot in distribution of 702. Bequest of share in residue for
residue. life.
696. Residue of realty and personalty 703. Allotment of real estate to one
to one. residuary legatee.

32 Warburton v. Williams, 116 Wis.

557, 93 N. W. 438, 8 Prob. Rep. Ann.
444, See also ante, § 323.
§ 687 “WILLS 570

§ 687. Residue of personal estate.—I bequeath all the res-
idue of my personal estate and effects to of absolutely.

 

 

§ 688. Residuary clause.**—I authorize my executor to di-
vide the residue of my estate between the children of Joseph H.
Burnet and of Benjamin F. Howell, per capita.**

§ 689. Residue of personalty to wife.—I bequeath all the
residue of my personal estate and effects whatsoever and where-
soever situated, after payment of my debts, funeral and testa-
mentary expenses, and of the legacies bequeathed by my will
or any codicil thereto, unto my wife , absolutely.

 

§ 690. Residue of personalty to children as a class with
provision against lapse.—I bequeath all the residue of my
personal estate and effects unto, between, and among my chil-
dren in equal shares, absolutely: provided always, that if any
child of mine shall die before me, leaving issue surviving me,
the share of such child shall not lapse, but shall go and devc!ve
as part of his or her estate, in the same manner as if he or. she
had survived me and died immediately after me.**

§ 691. Residue of personalty to children with substitution
of issue.—I bequeath all the residue of my personal estate
unto such child or children of mine as shall survive me, and
the child or children living at my death of any child or children
of mine dying before me, and if more than one, in equal shares
as between brothers and sisters, but so that the child or children
collectively of any deceased child of mine shall take such share
only as their parent would have taken if living.*°

§ 692. Residuary bequest per capita—Whatever there re-
mains after my decease shall be equally divided amongst my law-
ful heirs, share and share alike.*”

33 See ante, § 143. 36 See ante, § 311.
34 Burnet v. Burnet, 30 N. J. Eq. 37 Mooney v. Purpus, 70 Ohio St.
595, 1 Am. Prob. 541, 57, 70 N. E. 894, 9 Prob. Rep. Ann.

35 See ante, § 312. 508. See also ante, § 194,
571 FORMS FOR PARTICULAR CLAUSES § 693

§ 693. Residuary legacy to daughters.—All the rest and
residue of my property and of the property over which I have
control, including ready money, rents, dividends, and other
moneys due me at the time of my death, after payment of my
debts, funeral expenses and expenses of administration, shall
be divided as follows: To my daughter C., one-half part thereof;
to my daughter M. one-fourth part thereof; and to my daughter
J. M. one-fourth part thereof.**

§ 694. Legacy of residue of personalty to several in equal
shares.—I bequeath all the residue of my personal estate and
effects unto and between of , and , equal shares,
absolutely.®?

 

 

 

§ 695. Advances to a son brought into hotchpot in dis-
tribution of residue.—And I declare, that the sums (amount-
ing to dollars) which I have advanced by way of loan to
my son , and any other sum or sums I may hereafter ad-
vance to him, or for his benefit, or so much thereof as may be
owing to me at my decease, and the interest thereon, shall not
be charged or claimed as a debt owing to me from him or his
representatives, but all such sums (whether legally constituting
debts or not), with interest thereon from my decease at the
rate of per cent. per annum, but not any interest thereon
prior to my decease, shall be brought into account in the way
of hotchpot in the division of my residuary estate as against
the said , and his wife and children, and the other persons
interested in his share of my residuary estate under the ‘trusts
hereinbefore declared.*°

 

 

 

 

§ 696. Residue of realty and personalty to one.—(a) I
devise and bequeath all the residue of my estate and effects,
both real and personal, unto of , absolutely.** (b) I
devise and bequeath all the residue of my real and personal
estate, whatsoever and wheresoever, unto of , his

 

 

 

 

38 Reid v. Walbach, 75 Md. 205, 23 40 See ante, § 433.
Atl. 472, 8 Am. Prob. 131. 41 See ante, § 143,
39 See ante, § 195.
§ 697 WILLS 572

heirs, executors, administrators, and assigns, according to the
natures thereof, respectively, for his and their absolute use and
benefit.

§ 697. Residuary devise and bequest specifying property,
which gives residuary legatee no right to lapsed legacies.—
To my son, J. W., his heirs, executors and assigns, I do give, de-
vise and bequeath all the residue of my real estate and personal
property not hereinbefore enumerated as hereinafter described.
(Here follows a description of lands.) I also give, devise and
bequeath to my son, J. W., all my real estate in the township of
Spring Wells, County of Wayne, State of Michigan, remaining
after the aforesaid bequests, to wit: (describing lands). I also
give to my son, J., my real estate in the County of St. Joseph,
State of Michigan, to wit: (describing it). I also give to my
said son, J., all the arms of which I may die possessed, including
guns, rifles, pistols, revolvers, etc.; also, 1 charge my said son, J.,
to pay out of his proper share, as herein set forth, all my debis,
liabilities, and also my necessary funeral charges.”

§ 698. Residue of realty and personalty to children and
issue of deceased children.—I give the residue of my real and
personal estate to such child or children of mine living at my
death, and such issue of any child or children of mine then de-
ceased, as shall survive me and attain the age of twenty-one
years, and his, her, or their heirs, executors, administrators, and
assigns, respectively, in equal shares as between brothers and
sisters, and so that the child, or the children collectively, of any -
deceased child or grandchild, shall take only the share which his,
her, or their parent would have taken if living.*

§ 699. Residue of real and personal estate to trustees.—
(a) I devise and bequeath all the residue of my real estate, in-
cluding chattels real, and of my personal estate and effects, unto
and to the use of the said trustees, their heirs, executors, ad-

42 Williams v. McKeand, 119 Mich. 43 See ante, § 195,
507, 78 N. W. 553, 75 Am. St. 420,
4 Prob. Rep. Ann. 488.
373 FORMS FOR PARTICULAR CLAUSES § 700

ministrators and assigns, upon trust, etc. (b) I devise and be-
queath all my real estate of every kind, and all my personal estate
and effects whatsoever, not otherwise disposed of by this will
or any codicil thereto, unto and , trustees, and the
survivor of them and his successor, their and his heirs, executors,
and administrators, respectively, according to the nature thereof,
upon trust, etc.**

 

 

§ 700. Residue of real estate to son for life, with remain-
der to trustees.—I devise and bequeath all the residue of my
teal estate, whatsoever and wheresoever situate, including chat-
tels real, unto and to the use of my son , during his life;
and after his death, I devise and bequeath the same unto and to
the use of the trustees or trustee for the time being of this my
will, and their or his heirs, executors, administrators, or assigns,
according to the nature and tenure of the same premises, re-
spectively, to be held by them or him upon the trusts, and with
and subject to the powers and provisions hereinafter declared
and contained concerning my residuary personal estate.

 

§701. Residue according to law—No power of sale.—I
direct that the remainder of my estate, both real and personal,
be divided among my heirs according to the laws of the State of
Tennessee now in force, none preferred, none discriminated
against. I desire and direct that no portion of my estate shall
be subject to any supervision of, or liability to any court what-
ever. I hereby appoint my long tried and faithful friend, J. A.,
my executor, to take charge of my entire estate, and execute
this, my last will and testament, and to do so without any bond,
or any liability for errors and defects, either to my heirs or
to any court, relying upon his integrity and judgment entirely.

§ 702. Bequest of share in residue for life—One undi-
vided third part of the residue of my estate I give and bequeath
to my daughter C., to have and to hold during the term of her
natural life, and at her death, or at my death, should I survive

44See ante, $ 338. 45 Alexander v. Wallace, 8 B. J.
Lea (Tenn.) 569, 2 Am. Prob. 291.
§ 703 WILLS 574
her, to my son M., if he is then living, and if he is not living

at that time, one-half to W. of L.; and the other half to C. of O.**

§ 703. Allotment of real estate to one residuary legatee.—
In the distribution and division of my residuary estate I direct
that the brick dwelling house at 47 North Blank Street, in the
city of , how occupied by me as a residence, and the lot on
which it is built, shall be alloted to my wife, , as a part of
her share in such residuary estate, at the valuation of seven
thousand dollars, and I hereby give and devise this said resi-
dence and the lot on which it is situated to my wife, , abso-
lutely in fee simple. Said property is more particularly described
as follows: (Here insert description.)

 

 

 

‘ArtIcLe 8. BrEQuests AND Devises TO CERTAIN Kinps
OF BENEFICIARIES

SECTION

704. Gifts to servants and employés.

705. Bequest to several persons.

706. Afterborn children.

707. Legacy to adopted child.

708. Gifts to absent legatees.

709. Legacy to one whose where-
abouts are unknown.

Provisions for wife in lieu of
dower.

Provision in lieu of dower.

Legacies to debtors.

Releasing debts to debtor.

Forgiving debts.

Release to a debtor of all debts.

Release of mortgage debt.

Release of son from payment of
interest on debts.

Legacy to creditor.

Bequest to executors.

Legacy to a charity.

Devise to churches as tenants in
common.

Devise and bequest to a college.

Bequest to namesakes.

710.

711.
712.
713.
714.
715.
716.
717.

718.
719.
720.
721.

722.
723.

SECTION

724, Devise to wife for life, then to
son in fee,

725. Devise to children with substi-
tution of issue,

726. Devise to trustees upon trust to
permit unmarried daughters
to reside.

727. Devise to testator’s sons with
gifts over if they die preced-
ing testator.

728. Devise to several as tenants in
common, with  cross-limita-
tions.

729, Legacy to one or to his children
by substitution.

730. Legacy to two sisters or the sur-
vivor.

731. Legacy to children to equalize
share.

732. Bequest per stirpes, granting
each heir of L. A. a full share.

733. Devise to a class, heirs of the
body.

734, Devise and bequest per capita.

46 Harris v. Dawley, 22 R. I. 633, 49 Atl. 29, 6 Prob. Rep. Ann. 633.
575 FORMS FOR PARTICULAR CLAUSES § 704

. SECTION SECTION

735. Devise. per capita. 740, Bequest to go to personal repre-
736. Gift to class. sentatives (executors or ad-
737. Gift per capita. ministrators) at death.
738. Bequest per stirpes. 741, Estate given according to laws
739. Gift to children upon the death of descent.
of the wife. 742, Legacies to executors and trus-
tees.

§ 704. Gifts to servants and employes.“’—(a) I give to
——., who has been in my service for many years, the sum of
dollars, as a token in reward of her faithful services.

(b) I give and bequeath to each and every servant who has
been employed about my residence for five years or more, and
who is also in my employ at the time of my death, the sum of
dollars.

(c) I give and bequeath the sum of five hundred dollars to
each person who may be an employé or servant at the time of
my death in or about my residence in the city of New York,
my country house at , my summer house at , my camp
at , or my yacht Goodfellow, my executors to have the
final determination as to what persons are entitled to such leg-
acies.

(d) I give and bequeath twenty thousand dollars to my ex-
ecutors to be apportioned by them among the employés who
have been in my business for a continuous period of ten years or
more, and who are living at the time of my death. I desire every
one of such employés to share in this amount, but I also desire
my executors so to distribute the shares that those who are the
more needful shall receive more than those who are more pros-
perous. I desire my executors to use their discretion in this
distribution, and their judgment is to be final and binding on
my estate.

(e) I give to the sum of one thousand dollars, provided
she is in my employ at the time of my decease.

(f) I bequeath to , who has been my faithful servant
for many years, the sum of dollars, and this legacy is to be
hers, whether she is in my service at the time of my death or

 

 

 

 

 

 

 

 

47 See ante, § 182,
§ 705 WILLS 576

not, and if she dies before me, and leaves living issue, or their
descendants, then I give the said dollars to such issue or
their descendants to be equally divided among them.

(g) To , who has been my bookkeeper and secretary
for many years, I give and bequeath the sum of , the same
to go to his wife, , if he should die before me, and to their
children if both should die before me.

(h) I bequeath to my executors the sum of dollars, to
be divided among, or applied for the benefit of, such of my serv-
ants as shall be living with me at the time of my decease, and
in such proportions and manner as my executors shall in their
absolute discretion think fit.

 

 

 

 

 

 

§705. Bequest to several persons.“—I give to my four
grandchildren, the children of my son , the sum of dol-
lars, collectively, to be equally divided among them, each of them
to receive one-fourth of said sum.

 

 

§ 706. Afterborn children.*°—(a) I declare hereby that
any child or children hereafter born to me shall share in my
estate equally with my children now born, and named as lega-
tees in this will.

(b) I have heretofore given the residuum of my estate to my
children and named them as legatees, and I hereby declare and
direct that any child or children hereafter born to me shall
share equally in such residuum with the children named in
this will.

§ 707. Legacy to adopted child.°—(a) I give to my
adopted child, , the sum of

(b) Wherever I have used the words, child, children, or
issue, in this will, it is my intention to include child, children, or
issue, by both or either blood and adoption.

 

 

§ 708. Gifts to absent legatees.—(a) I give and bequeath
to my friend, , who has not been heard of for several years,

 

48 See ante, § 168. 50 See ante, § 176.
49 See ante, § 176.
Sfi FORMS FOR PARTICULAR CLAUSES § 709.

the sum of two thousand dollars, provided he appears and claims
it within three years after probate of this will. If he does not
claim the legacy within that time, then it is to go to my residuary
legatees. . .

(b) I instruct my executor to deposit the sum of five thousand
dollars in the Bank, at interest. This sum and the accumu-
lated interest I give and bequeath to my son , from whom
I have not heard for many years, if within ten years he shall
appear and claim it. If within that time he does not appear,
my executor shall continue the deposit for five years more, and
if, during that time, persons appear and make claim to the legacy
by satisfactory proof of his death, and that they are his issue,
then it shall be paid to them. If no claimants appear under the
conditions aforesaid within fifteen years from probate of this
will, then said amount and interest is to be paid to

 

 

 

§ 709. Legacy:to one whose whereabouts are unknown.—
I direct my executors to pay to D. B., son of my sister M., the
sum of five thousand dollars. I do not know the place of resi-
dence of said D. B., or even that he is now living. Now this
bequest is made on condition that he, said D. B., shall appear
and claim this bequest before the final distribution of my estate
according to the terms hereof, and in no event later than ten
years from the date hereof.**

§ 710. Provisions for wife in lieu of dower."°—(a) The
provision made in this will for my wife is in lieu of dower,
widow’s rights, and any other interest she might, under the
law, have in my estate if I left no will.

(b) I give to my wife one-third of my entire real and per-
sonal estate, in lieu of all her rights of dower and succession
under the laws of this state.

(c) The bequests and devises herein made to my wife are
intended to be and are hereby declared to be in lieu of all her

51 Brookhouse v. Pray, 92 Minn. 52 See ante, § 102.

448, 100 N. W. 235, 9 Prob. Rep. Ann.
335.

37—Tuomp. WILLS.
§ 711 WILLS 578

statutory or other rights or claims of any kind to my estate or
any part thereof.

(d) I intend and declare that the provisions for my wife in
this will shall be in lieu of all claims, including dower, which
she could have asserted on my estate had I died intestate.

(e) The bequests and legacies in this will for my wife
are in lieu of all right of dower, thirds, and any other interest
she may have in my estate, statutory or otherwise.

(f{) The provisions which I have made for my wife in this
will are intended to be in lieu of dower, widow’s award, and
any and all other provisions for a widow made by the laws of
this state, or of any state where any of my real or personal
property may be situated.

(g) The provisions which I have made for my wife in this
will, are in lieu and bar of any claim of dower or widow’s rights,
or other interest, statutory or otherwise, in my estate, and also
are in lieu and bar of any money which may come to her from
policies on my life. Any money which may come to her from
such policies I direct her to turn into my estate, to be deemed
a part thereof, and distributed according to the directions of
this will.

 

§ 711. Provision in lieu of dower.—I do further give and
bequeath unto my said wife, Sarah W. Van Wagner, during
the term of her natural life, all the interest, rents, issues and
profits arising from the balance of my estate, first, however,
charging them with the payment of taxes, assessments, insur-
ance premiums, expenditures for repairs, and all other legal
charges, and with all expenditures made with a prudent regard
for the welfare and best interests of my estate.

The foregoing provisions for my wife are in lieu of her
dower in my real ‘estate or of any other right which by law
she may be entitled to in my estate, real or personal.

§ 712. Legacies to debtors.°*—(a) I give to the sum
of five thousand dollars, and hereby expressly declare that all

 

53 Russell v. Minton, 42 N. J. Eq. 54 See ante, § 184.
123, 7 Atl. 342, 5 Am. Prob, 125,
579 FORMS FOR PARTICULAR CLAUSES § 713

 

debts of whatever kind now or hereafter due me from said
are released and cancelled.

(b) I give to the sum of five thousand dollars, but I
hereby expressly declare that it is not my intention to forgive
and cancel any claims which I may hold against him at the time
of my decease.

 

§ 713. Releasing debts to debtor.°—(a) I hereby forgive
my said brother, whether living at my death or not, and so that
in the latter case such forgiveness shall enure for the benefit of
fhe estate of my said brother, the said sum of dollars, or
such part thereof as shall remain unpaid at the time of my death,
and all interest for the same.

(b) I release and forgive to , or to his representatives
if he shall die in my lifetime, every sum of money, with the in-
terest thereon, which may be owing from him or them to me
at the time of my decease; and I direct that any note or notes,
bond or bonds, or other obligation or security for the same,
shall be released or given up to the said or his representa-
tives.

 

 

 

§ 714. Forgiving debts.—I desire and direct that any and
all notes, bills; accounts, agreements, or other evidences of in-
debtedness against any of my said brothers and sisters, held by
me at the time of my decease, be canceled by my said executors,
and delivered up to the maker or makers thereof, without pay-
ment of the same, or any part thereof, except two notes I hold
against J. C. W.—one for eight thousand dollars, dated August
10, 1870, and due January 1, 1871; and one for four thousand
six hundred dollars, dated November 28, 1870, and due six
months after date, and both secured by trust-deed on lands in
Johnson County, State of Missouri, which notes I desire and
direct to be collected, and equally divided between my said
brothers and sisters, the child or children of a deceased brother
or sister to take the same share the father or mother would have

taken if living.*®

55 See ante, § 184. 96, 36 L. ed. 123, 12 Sup. Ct. 435, 8 °
56 Waterman v, Alden, 143 U. S. Am. Prob. 193,
§ 715 WILLS 580

§ 715. Release to a debtor of all debts.—I forgive and re-
lease unto of all sums which may be owing by him
to me at my death, both principal and interest, whether evidenced
by bonds, promissory notes, accounts or otherwise, and whether
secured by mortgages, pledges or other securities, and I direct
that all obligations on his part and all securities therefor shall,
as soon as may be after my death, be delivered by my executors
to said or canceled and that my executors shall deliver to
said all necessary receipts, discharges, reconveyances or
reassignments, and I declare that if said shall predecease
me his iegal personal representatives shall be entitled to the
benefit of this gift.

 

 

 

 

 

§ 716. Release of mortgage debt.—I release and forgive
to , or to his representatives if he shall die in my lifetime, a
certain debt secured by a mortgage for the sum of dollars
made by him to me on or about the day of , 19—,
upon his house situate at , or so much of said mortgage
debt as may remain owing to me at the time of my death, and
all the interest thereon; and I direct that his note or bond for
the said mortgage debt shall be canceled and given up to him or
“hem, and the said mortgage released and discharged of record.

 

 

 

 

 

§ 717. Release of son from payment of interest on debts.
—I hereby release my son from the payment of any interest
up to the time of my death on any sum or sums of money which
may be due from him to me at my death, on any bonds, bills,
notes, or otherwise. And I direct that he shall be allowed time
in which to pay the principal of such sum or sums by yearly
instalments not exceeding dollars each, commencing at the
end of a year from my decease.

 

 

§718. Legacy to creditor.°""—(a) I bequeath the sum of
dollars to , and I declare that said legacy shall be in
addition to, and not in satisfaction of, any debt which I may
be owing him at the time of my decease.

(b) I give and bequeath to

 

 

 

of ——- the sum of

 

57 See ante, § 183.
581 FORMS FOR PARTICULAR CLAUSES § 719

 

dollars in full satisfaction of my note to him for dol-
lars, dated and payable , and of all interest which
may be due on the same at the time when this legacy is paid,
and I direct that this legacy shall only be paid on the condition.
that said note shall be canceled and surrendered to my executor.

 

 

 

§719. Bequest to executors.**—I bequeath to each of my
said executors, in case they shall accept this trust and prove my

 

 

will, the sum of dollars.
§ 720. Legacy to charity.*°°—I bequeath to the Hos-.
pital, organized and situate at , in the county of , the

 

 

 

sum of dollars, to be applied for the general purposes of,
such institution; and the receipt of the treasurer or other proper.
officer of the same for the time being shall be a sufficient dis-
charge for said legacy.

§ 721. Devise to churches as tenants in common.—At the
death of my said sisters and brother I do give, devise and be-
queath all my interest in my real estate in two parts to the Pastor
and Deacons of High Street Church, and to the Pastor and
Deacons of John Street Church to be by them disposed of for
the support of the said churches in their religious worship to be
equally divided between the said churches—by creating a per-
manent fund, the interest and income of which, whether in the
improvement of the said lands or converting the same into
funded securities yielding interest thereon—to the said Pastor
and Deacons of High Street Church and to the said Pastor and
Deacons of John Street Church and their successors forever,—
the division and enjoyment thereof to be in peace and harmony
between the said churches.

§ 722. Devise and bequest to a college."—I devise my
land situate in the city of and the business block thereon to
the College, absolutely, for the general uses of said institu-
tion without any restriction or condition whatsoever, having full

 

 

58 See ante, § 422. 60 Osgood v. Rogers, 186 Mass. 238,
59 See ante, § 187. 71 'N. E. 306, 9 Prob. Rep. Ann. 293,
61 See ante, § 188,
§ 723 | WILLS 582

confidence in the judgment and discretion of the board of trus-
tees of said corporation. In addition to the foregoing devise,
I give and bequeath to said college the sum of thousand
dollars absolutely and without restriction.

 

§ 723. Bequest to namesakes.—I give to each of my name-
sakes, Samuel G. S., son of C. R. S.; Samuel G. W., son of
S. G. W.; Samuel, son of S. G., Jr., and Samuel G., son of
Captain John F. H., a thousand-dollar bond of the S. S. Rail-
road.

§ 724. Devise to wife for life, then to son in fee.—I devise
the dwelling-house and premises at , which I purchased of
, to the use of my wife, , during her life; and after
the death of my said wife, I devise the said premises to the
said (son), his heirs and assigns, forever.®

 

 

 

$725. Devise to children, with substitution of issue.—I
devise (description) to all my children living at my death, and
the issue then living of such of them as shall be then dead leaving
issue living at my death, and their respective heirs and assigns, as
tenants in common, in equal shares as between brothers and sis-
ters, but so that the issue of any child so dying shall take between
them only the share which their parent would have taken if
living.**

§ 726. Devise to trustees upon trust to permit unmarried
daughters to reside.—I devise my house and land adjacent
thereto and used therewith at , in the county of , to
my trustees in fee simple, upon trust that they shall permit such
one or more of my daughters as shall at my death be unmarried
to reside therein rent free so long as she or they or any of them
shall remain unmarried, she or they during that time keeping
the same in good repair, and the house insured against fire to the
amount of dollars; and I declare that from and after the
death or marriage of all my said daughters, or in case none of

 

 

 

62 Hawkins v. Garland, 76 Va. 149, 63 See ante, § 243.
44 Am. Rep. 158, 3 Am. Prob. 550. €4 See ante, §§ 194, 195.
583 FORMS FOR PARTICULAR CLAUSES § 727

them shall be willing to reside in said house, my said trustees
shall stand possessed of the said premises upon the trusts and
with, and subject to, the powers and provisions hereinafter con-
tained and concerning my residuary real estate.

§ 727. Devise to testator’s sons with gifts over if they die
preceding testator.—I devise my house and lands at , in
the county of , known as the estate, to my eldest son,
, in fee simple; but if he dies in my lifetime without leaving
issue living at my death, then to my second son, , in fee
simple; but if he dies in my lifetime without leaving issue living
at my death, then to my third son, , in fee simple; and if
he dies in my lifetime without leaving issue living at my death,
then said house and lands comprising said estate shall fall into
and form part of my residuary estate.®

 

 

 

 

 

 

§ 728. Devise to several as tenants in common, with cross-
limitations.—I devise (description) to the use of and
, their heirs and assigns, in equal shares, as tenants in com-
mon. But I give the share or shares (as well accrued as orig-
inal) of such of them as shall be dead at my death, or shall die
under the age of twenty-one years without leaving issue living
at his, her, or their death or deaths, unto the others or other
of them, their, his, or her heirs or assigns, forever, as tenants
in common,

 

 

§ 729. Legacy to one, or to his children by substitution.—
I bequeath the sum of dollars to ; but in case he shall
die in my lifetime, then I bequeath the same to his children or
child who shall be living at my decease, and being sons or a son
shall attain the age of twenty-one years, or being daughters or
a daughter shall attain that age or shall previously marry, in
equal shares if there be more than one.®

 

 

§ 730. Legacy to two sisters or the survivor.—I bequeath
the sum of dollars to my sisters, and: , in equal

 

 

 

65 See ante, § 286. 66 See ante, § 284.
§ 731 WILLS : 584

shares, but in case either of them shall die in my lifetime, then
the whole of such sum to the survivor of them.”

§ 731. Legacy to children to equalize share.—And whereas
I have already given the sum of dollars to my son, now,
with a view of placing my other children on the same footing as
my said son, I bequeath to each of them, my said other children,
viz., the said and , the like sum of dollars, with
interest thereon at the rate of per cent. per annum from
the day of my death until the payment thereof, such interest to
be paid half-yearly.®*

 

 

 

 

 

§ 732. Bequest per stirpes, granting each heir of L. A. a
full share.—I hereby give and bequeath unto A. A. M., G. A.
M., C. T. I. G. M., the heirs at law of L. A., deceased, A. M.,
G. M., K. M. and C. M., each the sum of twenty-five thousand
dollars, to be paid to them, respectively, by my executors after
my decease.

§ 733. Devise to a class, heirs of the body.”—I give and
bequeath to the legal and direct descendants—the heirs of their
bodies begotten and their heirs—of my brother W. and his wife,
M. (now both deceased), the one-fourth part of my estate.”

§ 734. Devise and bequest per capita.—I give, devise and
bequeath all the rest and residue of my property, real, personal
and mixed, of which I may die seized, unto the said W. W. L.,
in trust, nevertheless, to sell and dispose of the same, and to
convert it into cash, and divide the proceeds equally among
the heirs at law.”

§ 735. Devise per capita—I direct that the surplus of my
estate shall be equally divided and paid over to P. J. R., Miss
M. R., and the children of my niece M., wife of C. S., in equal

87 See ante, § 284. 540, 58 N. E. 462, 79 Am. St. 234,

68 See ante, § 194. 6 Prob. Rep. Ann. 116.

69 Auger v. Tatham, 191 Ill. 296, 72 Ramsey v. Stephenson, 34 Ore.
61 N. E. 77, 7 Prob. Rep. Ann. 43. 408, 56 Pac. 520, 57 Pac. 195, 4 Prob.

70 See ante, §§ 190, 191. Rep. Ann. 510.

71 Lancaster v. Lancaster, 187 Ill.
585 FORMS FOR PARTICULAR CLAUSES § 736

portions, share and share alike, to them and each and every one
of them, their executors, administrators and assigns, absolutely,
forever.”

§ 736. Gift to class.*—I give, devise and bequeath all of
my property of every description and wherever located to my
wife, Lucy R. S., for and during her natural life, and at her
death to be divided between the children of my brother, Richard
S. of Dunnville, Essex County, Virginia, and my ward, Miss
Eva B. H., to share and share alike, and in the ‘event of the
death of any of the children of my brother leaving issue, then
such issue to take the share of their deceased parent, and in
«the event of the death of my ward, Miss Eva B. H., without
issue, the entire estate to go to my brother’s children.”

§ 737. Gift per capita—Should there be any left, after
these gifts named, from varying of value of stocks, at the time
of my death, I wish it to be distributed between Mary T. and
her daughters, in trust to Dr. G. L. S., and to S. B. and her
daughters, Kate W., Emily J., Jane B.-and Gilberta S. W."°
(Divided in ten parts per capita.)

§ 738. Bequest per stirpes.""—I give the remaining one-
third of said residue to my grandson, the said Adrian P., and
if he shall die leaving children, then to his children, but if he
shall die without issue, then I give one-half thereof to Elizabeth
H. and the other half to be equally divided between Caty, and
if she be dead, her children, and the child or children of George,
in fee.7®

§ 739. Gift to children upon the death of the wife.—I
give to my wife, Mary R. Gibbens, the use of all my household
furniture, plate, pictures, books, and utensils; also all the family

73 Culp v. Lee, 109 N. Car. 675, 14 76 Whittle v. Whittle, 108 Va. 22,
S. E. 74, 8 Am. Prob. 128. 60 S. E. 748, 13 Prob. Rep. Ann. 448.
* 74 See ante, § 190, 77 See ante, § 195.

75 Saunders v. Saunders, 109 Va. 78Van Houten v. Hall, 73 N. J.
191, 63 S. E. 410, 14 Prob. Rep. Ann. Eq. 384, 67 Atl. 1052, 13 Prob. Rep.
386. Ann. 77,
§ 740 WILLS ; 586

stores, which shall be in the house at the time of my decease, and
destined for family maintenance. All such articles as are not
consumed in the use, and shall remain in existence at my wife’s
marriage or decease, shall then go to my children, they to share
the same equally. I also devise and bequeath to my said wife, to
hold during her widowhood, all my estate, real, personal and
mixed, upon the trust, and for the intent and purpose, that by and
from the net income and produce thereof, she may maintain her-
self and our family as now composed, and afford a home to those
of my unmarried daughters who shall desire to join the family
hereafter.

In case my said wife shall marry after my decease, then upon
such event happening, she shall receive only one-third part of
the net income of my real estate, and one-fourth part of the
net produce of my personal property; the residue of such in-
come and produce shall thereafterward, during the continuance
of my wife’s life, be equally distributed to and among my chil-
dren.

At the decease of my wife, all my estate, real and personal,
shall go to and be equally divided among my children, the issue
of a deceased child standing in the place of the parent.”

§ 740. Bequest to go to personal representatives (execu-
tors or administrators) at death_—But, after ascertaining and
allotting the share of each beneficiary under this item, they shall
retain out of the share of each child, or issue of a dead child,
one-tenth part thereof, which part so retained may be held in
specie, or converted into money, at the election of said executors,
and invested for the benefit of such beneficiary, to whom all the
interest accruing thereon shall be paid so long as said beneficiary
lives, and as each beneficiary dies his or her retained part shall
be paid or delivered to his or her personal representative.*°

§ 741. Estate given according to laws of descent.—I
hereby declare that it is my intention to dispose of all my prop-

79 Gibbens v. Gibbens, 140 Mass. 102, 8° Lyon v. Fidelity Bank, 128 N.
3 N. E. 1, 54 Am. Rep. 453, 5 Am. Car. 75, 38 S. E. 251, 6 Prob. Rep.
Prob. 92. Ann. 472.
587, FORMS FOR PARTICULAR CLAUSES § 742
erty, real and personal, of which I may die seized and possessed,
wherever situated, in the same manner as it would descend ac-
cording to law, if I had made no will, that is, under the statutes
which provide for the distribution of intestate estates, real and
personal. I appoint to be the executor of this will, and
desire that he be exempt from giving surety on his bond. I em-
power him to sell as my executor any of my real and personal
estate at private or public sale, and to make all necessary con-
veyances.

 

§ 742. Legacies to executors and trustees—(a) I give
and bequeath to whom I have named the executor of this
will, the sum of dollars, to be paid him in any event, whether
or not he qualifies as executor, and not as compensation for
acting as executor. In addition he is to receive for his services
as executor such compensation as the court may allow.

(b) I give to and the executors of the sum of
dollars each, to be paid to them only if they qualify as executors
of this will, and serve as such, and such sum is to be taken by
them in full satisfaction of all services rendered as executors.
If either of them should die before the entire settlement of the
estate, then the legacy is to be paid to his legal representatives,
and the survivor shall complete the settlement of my estate.

(c) I bequeath to in the event that he qualifies as trus-
tee of this will, the sum of dollars. I also desire that he
shall receive the usual and proper compensation for his services
as trustee, in addition to this bequest.

(d) The legacies to executors and trustees named in this will
are unconditional, and are to be paid to them even if they should
fail or decline to qualify or act as trustees or executors.

 

 

 

 

 

 

 
§ 743 WILLS “588

ARTICLE 9. BEQUESTS AND DevisEes oF CERTAIN KINDS
OF PROPERTY

SECTION SECTION
743. Bonds to be purchased and held 766. Keepsakes or mementos.
in trust for children at twen- 767. Letters and manuscripts.

: ty-one or marriage. 768. Manuscripts to literary execu-
744, Bequests or devises of commu- tor.
nity property and declarations 769. Private letters and papers.
as to such, : 770. Memorials.
745. Provision as to wife’s separate 771. Monument.
property. 772. Cemetery lot.
746. Confirming conveyances. 773. Bequest to erect and keep in re-
747, Debt owing the testator. pair monument.
748. Dumb animals. 774. Portraits.
749, Furniture. 775. Bequest of income from stock
750, Furniture to daughters, for life,
751. Furniture and personal effects 776. Property of others in testator’s
to daughters. possession.
752. Furniture of her bedroom and 777, Share in partnership to a son
sitting-room to daughter. under a power in the partner-
753. Leasehold house with furniture. ship articles.
754. Power of sale of furniture and 778. Direction as to taxes.
effects bequeathed. 779, Devise of mortgaged property.
755. Furniture to wife during her 780. Devise subject to mortgage not
widowhood, afterward to chil- to be paid out of personalty.
dren. 781. Devise of buildings to son sub-
756. Declaration dispensing with in- ject to lease and mortgage.
: ventory of furniture be- 782. Direction that incumbered prop-
queathe _erty shall bear the burden of
757. Farming stock. the incumbrance.
758. Plantation tools and stock. 783. Devise free from mortgage debt.
759. Rights of fellow or patron. 784. Residence as home for testator’s
760. Devise of fixtures. family.
761. Heirlooms. 785. Gift over after invalid gift.
762. Heirlooms and keepsakes, 786. Invalid gifts not to defeat will.
763. Insurance policy. 787. Assignment of book debts.
764. Jewelry. 788. Assignment of business and
765. Bequest of personal property. good will by parent to son.

§ 743. Bonds to be purchased and held in trust for chil-
dren at twenty-one or marriage.—I direct my trustees or
trustee to purchase within a year from my death, or to set apart
from any funds in their hands, the sum of dollars in
per cent. bonds of the United States, and to hold the same in
trust for such child or children of my sister, , living at my

 

 

 
589 FORMS FOR PARTICULAR CLAUSES § 744
death or born afterwards, and such child or children of any
child or children who may die before me, of my said sister, as
shall, at any time or times before or after the death of my said
‘sister, attain the age of twenty-one years, or (being a girl or
girls) attain that age or marry under that age; if more than
one, in equal shares as between brothers and sisters, but so that
the child or children collectively of any deceased child shall
take such share only as his, her or their parent would have taken
if living.

§ 744. Bequests or devises of community property and
declarations as to such.*\—(a) All the property and estate,
real and personal, of which I may die possessed, is community
property of my wife and myself, acquired since our marriage,
and upon my death she is entitled to the undivided one-half of
all such property, in addition to the specific devises given her in
this will.

(b) My undivided half of the community property acquired
by myself and wife since our marriage, which is all my property
save the farm at , hereinbefore described and devised to
, | hereby devise and bequeath to my son

(c) I declare that the property and estate now owned by me
of every nature and description, except a ten-thousand-dollar
undivided interest therein, is the community estate of myself
and my wife, A. H. B., who before her intermarriage with me,
was A. H. N.*

 

 

 

§ 745. Provision as to wife’s separate property.—I will
and bequeath to my wife the sum of one thousand dollars
($1,000) in money, the same being the amount of certain moneys
which I received from her of her separate estate after my mar-
riage with her, and which said sum I direct to be paid to her
by my executors within one year from the time of my death.
‘And I further direct that all the household goods and furniture,
silverware, and personal property of every description, which

81See ante, § 65.° 30, 70 S. W. 76, 8 Prob. Rep. Ann.
82 Allardyce v. ‘Hambleton, 96 Tex. 272.
§ 746 " WILLs 590

she had of her own separate property at and after her marriage
with me, be given to and taken by her as her own property.*

§ 746. Confirming conveyances.—lI hereby ratify and con-

 

 

 

 

firm a certain conveyance and deed made to by me dated
and recorded —
§747. Debt owing the testator.—I give to all sums

 

 

of money owing to me from of , and all interest ac-
crued or to accrue hereafter in respect thereof, and all mortgages
or other securities for the same, and I appoint my said donee ex-
ecutor of this my will so far as regards the said sums of money,
interest and the securities for said debt, in order that he may
be able to sue for and recover said debt in his own name.**

 

§ 748. Dumb animals.—(a) I give to my friend my
old family horse Dick, and all my dogs and cats, and give to him
three hundred dollars, which I wish him to use cr so much of
it as may be necessary, in caring for these animals, or depriving
them of life, disposing of them as he considers best, with no
restrictions, the legacy to be his absolute property.

(b) To the Society for the Prevention of Cruelty to Animals
of I leave all the animals of whatever kind which I own
at the time of my decease to be dealt with in a humane manner
by sale, deprival of life, or otherwise.

 

 

§ 749. Furniture.*°—(a) I give and bequeath to all
the furniture which is in my residence, on Green Street, at the
time of my death, including books, bookcases, paintings, pic-
tures, statuary, plate, silver, china, beds, bedding, linen, crock-
ery, wines, cooking utensils, consumable stores and all other
household articles.

(b) I bequeath to all the furniture and household goods
in my city and country houses and all stable appurtenances and
equipment, garden and agricultural tools and equipment, horses,
bicycles, automobiles, carriages, and all other furniture, im-

 

83 Rusling v. Rusling, 42 N. J. Eq. 84 See ante, §§ 215, 222,
594, 8 Atl. 534, 5 Am. Prob. 252. ‘85 See ante, § 217.
591 FORMS FOR PARTICULAR CLAUSES § 750

plements, machinery and tools, appurtenant to such houses,
which may be there located at the time of my decease.

§ 750. Furniture to daughter.—I give to my daughter,
, all household furniture, pictures, ornaments and other
effects whatsoever ordinarily used by her in the rooms usually
occupied by her as her own in my house at , which I have
occupied for many years.

 

 

§ 751. Furniture and personal effects to daughters.—I
give all my household furniture and effects and my jewelry and
other articles of personal use or ornament to such one or more
of my daughters as shall survive me, and attain the age of
twenty-one years, or marry under that age, and I declare that
until final division thereof my trustees may in their sole discre-
tion either permit any one or more of my daughters, whether
her or their interest or interests shall have vested or not, to
have the use and enjoyment thereof or any portion thereof, or
may deposit the same for safe keeping in such place or places
as they think fit, and also may make such provisions for the
insurance, repair, and preservation thereof as they think fit, but
without being liable for any omission or neglect so to do, or for
any loss or damage that may happen to any of the above men-
tioned articles in any manner whatsoever.

§752. Furniture of her bedroom and sitting-room to
daughter.—I give to my daughter, , all household furni-
ture, pictures and other effects whatsoever ordinarily used by her
in her bedroom and sitting-room in my house where I now reside,
or in such other house as I may reside in at my death.

 

§ 753. Leasehold house with furniture.—I bequeath unto
all that my leasehold house wherein I now reside, with
the gardens and lands held herewith, situate at , m the
county of , for all residue of the term unexpired at my
decease for which the said premises are holden, subject to the
rent reserved by, and the covenants and conditions contained in,
the lease to me of said premises; and I further bequeath to said

 

 

 
§ 754 WILLS 592

 

all my furniture, fixtures, and household effects in, about,
or belonging to the said house. ,

§ 754. Power of sale of furniture and effects bequeathed.
—I declare that it shall be lawful for my said wife at any time,
with the consent of the trustees or trustee for the time being
of my will, to dispose of any part of the said furniture and
effects, and out of the proceeds of such sale to replace such of
the said articles as shall be sold, damaged, or destroyed, with
others of the like kind.**

§755. Furniture to wife during her widowhood, after-
ward to children.—I bequeath to my said wife the use and
enjoyment during her widowhood of the household furniture
and utensils not hereinbefore bequeathed, and the plate, books,
pictures, and prints of which I shall die possessed; and after
her decease I bequeath the same to my children, to be di-
vided between them as nearly as.may be in equal shares; and if
any dispute shall arise concerning the division thereof, then such
division shall be made by my trustees, whose determination shall
be final. I direct my executors to cause an inventory to be taken
of the same articles before the delivery thereof to my said wife,
and two copies of such inventory to be signed by my said wife, of
which copies so signed one shall be delivered to her and the other
be kept by my executors.”

 

§ 756. Declaration dispensing with inventory of furniture
bequeathed.—I declare that it shall not be necessary to take
any inventory of the said furniture and effects, and that my said
trustees or trustee shall not be concerned to see to the insurance
thereof, or be liable for any loss or damage thereof from any
cause whatever.*®

 

§ 757. Farming stock.—I give to my son, , absolutely,
all my stock of cattle, cows, calves, sheep, lambs, horses, poultry
and animals of all kinds, and all my hay, corn, and grain, and

86 See ante, § 380. 88 See ante, § 400.
87 See ante, § 233.
593 FORMS FOR PARTICULAR CLAUSES § 758

also my farming utensils and tools, my plows, mowing machines,
reaping, thrashing, winnowing and other agricultural machines;
my wagons, carts, carriages, harness, saddles and all other im-
plements of husbandry which shall at my demise be in or upon
my farm at , in the county of , or any other farm be-
longing to me at the date of my death.

 

 

§ 758. Plantation tools and stock.—I give and bequeath to
my wife E. M. all my household and kitchen furniture, planta-
tion tools and implements, carpenter’s tools, and all the stock of
every description, such as horses, mules, hogs, cattle and sheep,
and all the wagons, carts, pleasure carriages, rockaways and
buggy; all the corn, wheat, fodder, oats, rye, flour, meal, etc.,
not heretofore disposed of to D. and J.*°

§ 759. Rights of fellow or patron.—I give and bequeath
all my right, title and interest as patron or fellow of the
Institution in , including all powers and privileges
incident thereto, and constitute him my successor therein.

to

 

 

 

§ 760. Devise of fixtures.—I hereby devise and give to my
son the house at No. 999, Innes Street, in the city of ‘
absolutely in fee simple, to have and to hold to him and his heirs
and assigns forever, the said house being situated on a lot de-
scribed as follows: (Description.) This devise is to include
all the fixtures of whatever kind, including doors, window blinds,
shutters and gas fixtures, although they can be removed without
damage to the premises, and any articles of furniture which are
fastened to the floors or walls. I have already bequeathed the
movable furniture in this house to and I desire hereby to
indicate the limits of the bequest to her of such furniture.

 

 

 

§ 761. Heirlooms.—(a) I give to my oldest son the old
German Bible which was brought to this country by my grand-
father, and which I trust he will bequeath to his oldest son.

(b) to my oldest son, , L bequeath the sword which I wore
as an officer at the battle of Gettysburg, and thence until the

 

89 Read v. Watkins, 11 Lea (Tenn.) 158, 3 Am. Prob. 483.

38—Tuomp. WILLS.
§ 762 WILLS 504

close of the Civil War, and I request him to bequeath it to his
oldest son, and desire that it may be handed down to the oldest
son in each generation of my descendants.

§ 762. Heirlooms and keepsakes.—(a) I will and be-
queath to my nephew, D. S. P., my fowling piece, which was
presented to me by Colonel Riano, of the Spanish Royal
Army; then to my nephew, W. P., I will and bequeath my
sword and pistols, being the same which I used at the siege
of New Orleans; these I wish to have retained in the family,
if possible; my wearing apparel I will and bequeath to E. D. P.,
W. P. and D. S. P., to be equally divided between them.”

(b) It is my will and desire further that the tall eight-day
clock formerly the property of my grandfather, which was be-
queathed to me by my father, shall go to my brother Alonzo.
and at his demise to be bequeathed to some of his sons who is
best fitted from his circumstances to care for it. It is my will
and desire, as it was that of my father, expressed in his last will
and testament, that the said clock be always kept in the family
as an heirloom, as it has been for the past eighty-five years. It
is, however, expressly conditioned that my wife, Emma Alice N.,
is to remain custodian thereof during her lifetime, if she so
desires.

To my brother, Charles M. N., I bequeath my gold-headed
cane.

To my sister, Mary A. N., I bequeath my two volumes of
Picturesque America.

To my brother, Alonzo N., I bequeath my gold watch and
chain.**

§ 763. Insurance policy.°’°—(a) I bequeath to my son
the proceeds of the policy of insurance on my life with the Pru-
dential Insurance Company, No. 457963, for the sum of one
thousand dollars, which is payable by its terms to my estate.

(b) And whereas I am possessed of the following policy of

 

90 Piatt v. Sinton, 37 Ohio St. 353, 91Newlin v. Phillips (Del. Ch.),
2 Am. Prob. 380. 60 Atl. 1068, 10 Prob. Rep. Ann. 655.
82 See ante, § 221.
595 FORMS FOR PARTICULAR CLAUSES § 764

 

insurance upon my life, namely, a policy effected with the
Life Insurance Company for dollars, dated the day
of , 19—, and numbered , now I bequeath the said
policy, with the sum of dollars thereby assured, and all
accretions or additions thereto, unto my said wife absolutely.

 

 

 

 

 

§ 764. Jewelry—(a) I give to my cousin —— my dia-
mond necklace to be hers absolutely.

(b) I give to my wife all my wearing apparel, watches,
jewelry, and other personal effects of a similar nature, to be
hers absolutely, although I trust she will keep of them whatever
she may desire as keepsakes, and will give the rest to such of
our children as she sees fit.

 

§ 765. Bequest of personal property.“—I do give and
bequeath to my niece, A. B., my gold watch, my melodeon, my
black ear-rings, one set silver teaspoons (second choice), my
cashmere shawl, my brown silk dress, and the interest of twenty-
five hundred dollars, to be paid to her annually by my executor.
I also give her all my mourning clothes.

§ 766. Keepsakes or mementos.—(a) I hereby give to my
sister as a keepsake, whatever one of my pictures or pieces
of statuary or other works of art she may select to be her abso-
lute property, and after she has made her selection I give to my
brother whatever three of the remaining pictures, or pieces
of statuary or other works of art he may select to be his absolute
property.

(b) I give to my old friend —— my watch as a keepsake.

 

 

§ 767. Letters and manuscripts.—(a) I give all my manu-
scripts, papers, documents, and letters to my wife to be hers
absolutely, but I trust that she will dispose of them in the man-
ner which I have previously indicated to her.

(b) My manuscripts and unpublished papers, also all my fam-

93 See ante, § 232. ®4Welsh v. Brown, 43 N. J. L. 37,
2 Am. Prob. 221.
§ 768 WILLS 596

ily and business letters, and any other documents, I give to my
son.

(c) I direct my executor, when he has settled my estate com-
pletely, to destroy all my manuscripts, letters, and unpublished
papers.

§ 768. Manuscripts to literary executor.—(d) As I have
various and sundry manuscripts which have not yet been pub-
lished, I appoint J. K. as my literary executor, and bequeath
to him as such all of my manuscripts, papers and letters, and
desire him to have such of them published as it is practicable
and profitable. I also request him to edit my autobiography and
prepare the same for publication, and I direct that he shall have
one-third of the receipts from the publication of my manuscripts
and autobiography, and that the remaining two-thirds shall be
the property of my wife.

§ 769. Private letters and papers.—I give to my wife,
absolutely, all my letters and copies of letters, personal manu-
scripts, memoranda, diaries and writings, but not my business
letters and writings or legal documents, securities for money
or books of account, all of which belong to my executor and
‘are necessary for the settlement of my estate.

 

 

§ 770. Memorials.—I give to my old friends, ;
and each fifty dollars as a token of femienieance: in the
trust that each will buy with such legacy some memorial which
may serve as a reminder of my regard and esteem for them.

 

§ 771. Monument.—(a) I leave to my executors the sum
of one thousand dollars with which to pay my funeral expenses
and purchase a monument to be placed over my grave.

(b) I direct my body to be placed in a tomb to be erected on
my burial lot in the Greendale Cemetery, said tomb to cost not
to exceed five thousand dollars, which I direct my executors to
pay out of my personal estate.

(c) I leave to my executors the sum of one thousand dollars,
which they are to deposit with the proper authorities to provide
597 FORMS FOR PARTICULAR CLAUSES § 772

for the perpetual: care of my burial lot and tomb in Woodland
Cemetery. I desire that this care shall include not only its adorn-
ment and its keeping in orderly condition, but also the protection
and repair of the tombstones and monuments in the lot.

§ 772. Cemetery lot.°—(a) I direct that my remains and
those of my wife and children shall be interred in my lot No.
67 in Highview Cemetery, and that no other persons shall be
entitled to interment there.

(b) I desire that my lot No. 33 in the Woodland Cemetery
shall be reserved for the interment of my own family and de-
scendants.

(c) Having already made provision for the perpetual preser-
vation and care of my burial lot number 98 in Greendale Ceme-
tery, I hereby direct that no person shall be entitled to interment
therein save my wife, myself, my children, and their husbands
or wives and their descendants.

§ 773. Bequest to erect and keep in repair monument.—
‘(a) At my sister’s decease I give and devise the balance of my
estate, of whatever name or nature, to the town of Natick, but
in trust, nevertheless, the income of which is to be used for the
preservation of the monument which my executor is hereby au-
thorized to erect at my grave, and for the care and beautifying
of my lot in the cemetery. The town shall not expend a greater
sum than four per cent. per annum, deeming that as large an
amount as the town ought to pay.*°

(b) It is my earnest desire that my father’s family graveyard,
where my father and mother and wife are buried, and where I
desire to be buried, be enclosed and taken care of and that there
be erected over my parents’ graves a suitable monument. For
this purpose I set apart out of my estate the sum of five thousand
dollars to purchase and place over the graves of my parents a
marble monument to cost five hundred dollars and to have the
ground enclosed with an iron fence. I further direct that what-
ever sum of said five thousand dollars shall be left after paying

95 See ante, § 430. 96 Morse v. Nantick, 176 Mass. 510,
57 N. E. 996, 6 Prob. Rep. Ann, 47.
§ 774 WILLS 598

for the aforesaid monument, fence and clearing of said grave-
yard, shall be loaned out by my executor upon good security
and the interest arising from the same shall be used in keeping
said graveyard and fence, and the monument there, in good
repair; and upon the death or resignation of my executor, I
request that the county court shall appoint a trustee to take
charge of said fund, who shall use the same as directed.*”

$774. Portraits.—It is also my will that the portraits of
my late husband and of myself which were painted by Stuart
shall remain in the mansion-house, the use of which was be-
queathed to me by my late husband during my life, so long as
any of my lineal descendants shall occupy the same, and when
said house shall cease to be occupied by any of my said descend-
ants, I give said portraits to such of my four sons as shall then
be alive, and if none of them shall then survive, I give said
portraits to the male descendants of my said sons.

§ 775. Bequest of income from stock for life.°°—I give and
bequeath to H. R., wife of T. H. R., of Norway, in the State of
Maine, during her natural life, the income or dividends from
my stock or shares in the Portland Gas Light Company; and
after the decease of said H., I give and bequeath said income
or dividends, during his natural life, to said T. H. R.; and from
and after the decease of the said H. and of said T. H., I give
and bequeath said income or dividends to the children of said
T. H. and H., to be paid to them until all of said children shall
arrive at the age of twenty-one years.”

§ 776. Property of others in testator’s possession.—I now
have in my possession and custody, the following described cer-
tificates of stock (here insert full description including numbers),
which are the property of , who delivered them to me
on June 18, 1916, to hold for him, and to return them to him
if a certain contingency came to pass, or upon my death, and

 

 

87 Fite v. Beasley, 12 B. J. Lea 328 89 See ante, § 222.
(Tenn.) 4 Am. Prob. 274. 1Richardson v. Richardson, 75
98 Haven v. Haven, 181 Mass. 573, Maine 570, 46 Am. Rep. 428, 4 Am.
64 N. E. 410, 8 Prob. Ann. 62. Prob. 352.
599 FORMS FOR PARTICULAR CLAUSES § 777

therefore, if such stock certificates are found among my effects
at the time of my decease, I direct my executor to turn them over
to the aforesaid or his legal representative, taking
a receipt therefor. I hereby disclaim any title to or interest in
said stock certificates, and declare that they are the sole and
absolute property of the aforesaid

 

 

 

 

§ 777. Share in partnership to a son under power in the
partnership articles—-Whereas the articles of partnership of
the firm of , in which I am a partner, dated day of
, 19—, provide that I may introduce my son as a
partner into the said firm from and after my decease, during
the remainder of the term of the said partnership, subject to the
provisions of the said articles, in exercise of such power or of
any other power which may enable me in this behalf, I do hereby
bequeath unto my said son my share in the capital, stock in trade,
assets, good will, and profits of the said firm, he indemnifying
my general estate from all debts and liabilities of the said firm.

 

 

 

 

§ 778. Direction as to taxes.—I do order and direct that
all taxes that may be levied or assessed on any money or in-
terest herein bequeathed or given away shall first be deducted
from ‘the said money, and the balance paid, and said money or
interest shall be subject to the taxes as long as it remains in the
hands or control of my executor.?

§779. Devise of mortgaged property.—I give and devise
to and to his heirs and assigns forever, the following de-
scribed real estate: (description). If there is a mortgage on
such real estate at the time of my decease, it is my will that
such mortgage shall be paid out of my personal estate, if there
is a sufficient fund remaining after the payment of my other
debts, if there is not a sufficient fund remaining, then it is my
will that shall take the aforesaid real estate subject to so
much of the mortgage debt as remains unpaid after applying
as above directed the surplus of my personal estate after paying
other debts.

 

 

2 Welsh v. Brown, 43 N. J. L. 37, 2 Am. Prob. 221.
§ 780 WILLS 600

§ 780. Devise subject to mortgage not to be paid out of
personalty.—Whatever of the specific devises of real prop-
erty given by this will are subject to mortgages or valid liens
of any kind shall be taken by the respective devisees subject to
such mortgages or liens, and I direct that the devisees shall not
be entitled to have the mortgages or liens paid out of my per-
sonal estate.*

§781. Devise of building to son subject to lease and mort-
gage.—I devise to my son the buildings, and land con-
nected therewith, situate on street, in the city of , NOW
leased by me to for business purposes, subject to such lease,
and also subject to a mortgage, which mortgage, with the in-
terest due thereon, and any other charges and incumbrances
affecting the same at my death, my said son is to assume and
pay in exoneration of my personal estate and my other real estate.

 

 

 

 

§ 782. Direction that incumbered property shall bear the
burden of the incumbrance.—Ii there are any mortgages,
charges, liens or other incumbrances existing at my death against
any of the property or estate, real, personal or mixed, which
I have devised or bequeathed in this will, I direct that each dev-
isee and legatee shall take and receive such property subject to
such mortgage, charges, liens or other incumbrances, and as a
condition to receiving such property shall assume the payment
or satisfaction thereof, and in no event shall be entitled to have
them paid from any of my other estate. :

§ 783. Devise free from mortgage debt.—I devise all that,
etc., situate at , in the county of , to of , his
heirs and assigns, free and discharged from any mortgage which
may be a charge thereon at the time of my death, which I de-
clare shall be paid out of my personal estate in exoneration of
the said premises. .

 

 

 

 

§ 784. Residence as home for testator’s family.—(a) I
will, bequeath and devise my residence on North Jay Street, and

3 See ante, § 327.
601 FORMS: FOR PARTICULAR CLAUSES § 785

the lot on which it is situated, which is more particularly de-
scribed as lot 49, Millbank’s Addition to the City of Hale, to
my wife Mary, her heirs and assigns, forever, to have and to
hold absolutely, but in the belief that she will use it as a home
for our children until they shall all come of age.

(b) I give and devise to my wife to have and hold during
the term of her natural life, my homestead farm, described as
follows: (description). Upon her death, or if she should die
before my decease, then I give said farm to my children, A. A.,
B. B., and C. C., and to their heirs and assigns forever, as ten-
ants incommon. If my wife shall survive me, it is my hope and
request that said homestead farm be maintained as a home for
my children until their marriage, and that thereafter it shall
be maintained as a common place of resort and visit for them,
and their families, but I do not wish to make this an obligation
on my wife.

 

§ 785. Gift over after invalid gift—If for any reason the
devise of my real estate hereinbefore made to the aforesaid
Jones College should be void, then I devise said real estate
to -

 

§ 786. Invalid gifts not to defeat will—lI declare that if
any devise or bequest in this will shall prove invalid or void,
then no other part of this will and no other devise or bequest
shall be thereby invalidated.*

§ 787. Assignment of book debts.—This indenture, made
the day of , between of , hereinafter called
the grantor, of the one part, and of , hereinafter called
the donee, of the other part, witnesseth, that in consideration
of the natural love and affection which the grantor has for the
donee, the grantor hereby assigns unto the donee all the several
book debts now due and owing to the grantor in his business
of , and which debts are more particularly specified in the
schedule hereto annexed, and are owing by the several persons
whose names are in such schedule, with the benefit of all securi-

 

 

 

 

 

 

 

4 See ante, § 435. 5 See ante, § 435.
$ 788 WILLS 602

ties for the same, and with power to demand, sue for and give
receipt for said debts in the name of the grantor or otherwise:
To hold the same unto the donee absolutely.

In witness, etc. (Signature and seal of grantor.)

§ 788. Assignment of business and good will by parent to
son.—Indenture made the day of between of
, hereinafter called the grantor, of the one part, and
, his son, of the other part.

Whereas the grantor has for many years carried on the trade
or business of at , and in connection with said busi- °
ness is the proprietor of certain trade-marks and of certain
patents issued to him by the patent office of the United States;

And whereas the grantor is desirous of making provision for
the donee, his son, and of retiring from business, has agreed to
assign to him all said business and all the chattels and effects
specified in the schedules of the same hereto annexed, and all
interest in said trade-marks and patents.

Now this indenture witnesseth that in consideration of his love
and affection for said donee, he hereby assigns unto the donee,
all his good will in said business, and all the trade fixtures, ma-
chinery, stock in trade, utensils, horses, wagons, carts, office
furniture and personal property, on or about the said business
premises at , or used in connection with said business, and
also the trade-marks and patents used in connection therewith,
to hold unto said donee. absolutely.

The grantor hereby covenants with the donee to pay all debts
‘due and owing in connection with said business, when and as
the same fall due.

In witness, etc. (Signature and seal of grantor.)

 

 

 

 

 

of

 

 

 

 

ArTICLE 10. CREATION OF DIFFERENT Kinps oF Estates?

SECTION SECTION

789. Devise of fee simple—Indiana, 793. Devise in fee.

790. Devise to wife in fee—Iowa. 794, Life estate—Pennsylvania.
791. Fee simple—Pennsylvania. 795. Life estate to wife—Maine.

792. Devise to wife in fee making her 796. Devise of life estate—Illinois.
an executor, but not creating a 797. Life estate in realty and per-
trust—Illinois. sonalty—-Pennsylvania.

1 See ante, chap. 12.
603

FORMS FOR PARTICULAR CLAUSES

SECTION.

798.

799,

800.

801.
802.
803.

804.
805.

806.

807.

808.

809.

810.

811.

812,

813.

814.

815.
816.
817.

818.

819.

Life estate to husband—Indiana.

Devise to wife for life—Michi-
gan.

Life estate—Pennsylvania.
Bequest by wife for maintenance
of husband—Massachusetts.
Life estate in personalty—Mis-

sSissippi.

Bequest of money for life—New
York.

Life estate—Mississippi.
Bequest of life estate in income
of personalty—Pennsylvania.
Estate for life with power to

lease.

Devise to wife with power to
convey a fee simple title.

Gift for life with right to use—
Illinois.

Bequest of life estate with re-
mainder to personal represent-
atives of life tenant—Connec-
ticut.

Devise to wife for life, with
power of sale, and condition
against remarriage—Maine.

Life estate to wife and vested
remainder in  children—Illi-
nois.

Devise for life with remainder
over—Missouri, North Caro-
lina.

Bequest of personal property for
life, with remainder over—In-
diana.

Devise for a term and for life
—Massachusetts.

Life estate with power of sale—
Maine.

Estate for life with power to
convey the fee—lIllinois.

Life estate with power of dis-
position by will—Tennessee.
Life estate with power of dispo-
sition, remainder to children—

Iowa.

Devise of life estate with power

of disposal—Maine.

§ 788

SECTION,

820. Bequest for life with power of
disposal—Maine.

821. Devise and bequest for life to
wife with power to sell and
reinvest, remainder to children
—Georgia.

Life estate with power of dis-
posal—Massachusetts.

Life estate with power of dis-
posal—New Hampshire.

Life estate with power of dis-
posal of fee—North Carolina.

Devise for life with power to
convey fee—Massachusetts.

Devise to wife for life with lim-
ited power of disposal—Michi-
gan.

827. Devise to wife for life or so
long as she remains a widow
—Pennsylvania.

Estate for life or widowhood
with power of disposal—
Georgia.

829. Executory devise—Connecticut.

830. Determinable fee—lIllinois.

831. Defeasible fee—Illinois.

832. Base or determinable fee—Illi-
nois.

Defeasible fee—Missouri.

Determinable fee—North Caro-
lina.

Devise of estate tail—Pennsyl-
vania. ;

Devise of real estate to two with
power of sale after five years
and trust in proceeds of sale
for one.

Devise of house and contents
and land therewith to wife for
life, then to son.

838. Devise to grandsons, providing
for reversion in case of death
without issue—Mississippi.

839. Life estates to children, contin-
gent remainder to grandchil-
dren—Maryland.

840. Bequest for sole and separate
use of daughter.

822.
823,
824,
825.

826.

828.

833.
834,

835.

836.

837.
§ 789 WILLS 604

SECTION. SECTION.

841. Estate for years, remainder 843. Devise to son for life, remainder
vested in grandchild—New to church, also of another re-
York. mainder to church upon defi-

842. Income to wife, estate vesting in nite failure of issue to son—
children at her death, to be Arkansas,

distributed when youngest
comes of age—Iowa.

§ 789. Devise of fee simple—Indiana.—I devise and be-
queath my entire estate, both real and personal to my beloved
wife.”

§ 790. Devise to wife in fee—Iowa.—I give and bequeath
to my beloved wife, E., all of my property, real and personal,
of every description, to use, enjoy, and manage as she, in her
judgment, sees fit.*

§ 791. Fee simple—Pennsylvaniaw—In the event of any
of my said daughters dying without issue to survive her or them,
then and in that case I give and devise the share or shares of the
one or ones so dying to the others or their heirs in equal shares
as tenants in common.*

§ 792. Devise to wife in fee, making her an executor, but
not creating a trust—Illinois.—To my beloved wife, M., I do
give and bequeath all of which I die possessed, both real and
personal. My real estate, so far as now known, is described
as follows: [Here follows a description of lands], and I do
hereby appoint her (my beloved wife) my sole executor, who
is to enter upon and discharge said duties, without giving of
bond, and free from all restraint.

It is further my will, that in case of the death of my wife, M.,
before the settlement of my estate, that my property of which
I die possessed, shall be equally divided between my two nephews,
E. C. G. and R. A. G., I have full confidence in my beloved wife

2Snodgrass v. Brandenburg, 164 570, 82 N. W. 998, 5 Prob. Rep. Ann.

Ind. 59, 71 N. E. 137, 72 N. E. 1030, 639.
10 Prob. Rep. Ann. 55. 4 Ault v. Karch (Pa.),'69 Atl. 857,
3In re Barrett’s Will, 111 Iowa 13 Prob. Rep. Ann. 563. (Held that
this refers to death before testator.)
605 FORMS FOR PARTICULAR CLAUSES § 793

M. that she will do what is best and proper with my effects, and
that she will do with my property the same as I would wish
to have done—that she will take care of the proceeds. She is,
by this gift, free from all restraint to do as may seem to her best
and proper.®

§ 793. Devise in fee—I give and devise to my wife M.,
and to her heirs and assigns forever, the estate upon which we
are now living, which is particularly described as follows: (de-
scription). She shall have the absolute control and ownership
of said estate, and may sell all or any part of it during her
life, and the purchaser from her shall take all the right, title and
interest in such estate which she is capable of conveying. The
whole of said estate or any part of said estate which she has
not conveyed before her death, she may devise by will, to whom-
soever she wishes, and the devisee shail take all the right, title
and interest therein that she is capable of conveying or devising.
If, at the time of the death of my wife Mary, the whole of said
estate, or any portion thereof, has not been conveyed or devised
by her, then I give and devise the same not conveyed or devised
to my son , and his heirs and assigns forever. But it is my
will and intention that my said son is to have no interest
in said estate, or control over it, or any part thereof, unless my
wife Mary shall fail to convey or devise as aforesaid, since it is
my intention that the grantee or devisee from my wife, is to have
a complete and absolute title, free from any claims or interfer-
ence of my said son.°

 

 

§ 794, Life estate—Pennsylvania.—I will, bequeath, and
devise to my son J., during his natural life, my farm.”

§ 795. Life estate to wife—Maine.—I devise and be-
queath to my wife the rest of my estate, real and personal, with
the right to use, sell or otherwise dispose of the same, and the
income and increase thereof, according to her own will and

5 Giles v. Anslow, 128 Ill. 187, 21 7Shaner v. Wilson, 207 Pa. 550,
N. E. 225, 7 Am. Prob. 174. 56 Atl. 1086, 9 Prob. Rep. Ann. 134,
6 See ante, § 234.
§ 796 WILLS 606

pleasure during her lifetime. And so much of said estate with
the increase, income and proceeds thereof as may remain unex-
pended and undisposed of by her at her decease, I give to

 

§796. Devise of life estate—Illinois—I give and be-
queath to my above-named daughters an undivided third of
(describing certain lands) to be divided equally. In case of the
death of either of the above daughters without issue, the share
of the deceased shall revert to the remaining daughter. If either
die leaving children, deceased’s share shall be divided equally
between her offspring.°

§797. Life estate in realty and personalty—Pennsyl-
vania.—I give and devise and bequeath all my real and per-
sonal estate, also that interest in my father’s estate over which
I have power of appointment, to my wife to take and use same
and the net income thereof during all the term of her natural
life, without giving security as life tenant thereof.”

§ 798. Life estate to husband—Indiana.—I give and be-
queath to my husband, W., for and during his natural life, the
use, occupancy, rents and profits of all the real estate of which
I may die seized, with full power and authority to sell and con-
vey, by deed in fee simple, all or any part of my real estate,
if the same shall be deemed by him necessary to his support and
maintenance.”

§ 799. Devise to wife for life—Michigan.—I give, devise
and bequeath all my property and effects of every name and
‘nature to my executors hereinafter named for the intents and
purposes hereinafter mentioned, viz.: I desire that my wife shall
have the full use, benefit and enjoyment of all my property and
effects of every name and nature for and during the full term of
her natural life.

8 Stuart v. Walker, 72 Maine 145, 343, 69 Atl. 816, 13 Prob. Rep, Ann.
39 Am. Rep. 311, 2 Am. Prob. 79. 561.

®2Johnson v. Johnson, 98 Ill. 564, 11 Rowley v. Sanns, 141 Ind. 179,
2 Am. Prob. 281. 40 N. E. 674, 1 Prob. Rep. Ann, 337.

10In re Freeman’s Estate, 220 Pa.
607 FORMS FOR PARTICULAR CLAUSES § 800

Whatever remains after my wife’s death, I desire shail be
divided share and share alike between my beloved childrcn (nam-
ing them) and my adopted child, M.”

§ 800. Life estate—Pennsylvania—I give and devise
unto my son A. my messuage, tenement or tract of land,—during
the natural life of my son A. If my son A. shall die without
lawful issue, then the above described messuage or tract of land
shall fall back to my two sons, F. and G., but if my son A. have
lawful issue at the time of his death, then I give and devise
the above messuage or tract of land to him and his heirs for-
ever.**

§ 801. Bequest by wife for maintenance of husband—
Massachusetts.—It is my désire that my husband should
have his support out of my property during his life; therefore,
all the rest, residue and remainder of my estate, both real and
personal, after the payment of my just debts, funeral charges
and the legacies before named, which are to be paid within six
months after my decease, I give‘'and devise to my daughters,
A. and M., and their heirs and assigns forever, subject to the
condition that they support their father during his life.**

§ 802. Life estate in personalty—Mississippi.—I give, de-
vise and bequeath to my beloved wife, E., all my stock cattle
(not including oxen), cows, calves, etc.; ail my stock hogs; my
dark iron gray mule, named J.; a good horse and buggy, to be
provided for her by my executors hereinafter named; and also
five thousand dollars in money, to be paid to her by my executors
hereinafter named, within sixty days after my decease; to have
and to hold the same to her for life, provided she shall not marry
any one else. In case the said E. shall marry any one, then all
the property hereby devised to her shall revert to my sons and
daughters. Should she remain unmarried, she shall retain the

12 Burns v. Burns, 132 Mich. 441, 18 Beckley v. Riegert, 212 Pa. 91,
93 N. W. 1077, 8 Prob. Rep. Ann. 61 Atl. 641, 11 Prob. Rep. Ann. 74,
551. 14Baker v. Brown, 146 Mass. 369,

15 N. E, 783, 6 Am. Prob. 289.
§ 803 WILLS 608

said property to her sole use and benefit during her life, and at
her death the same shall revert to my children.*

§ 803. Bequest of money for life—New York.—I give and
bequeath the sum of two thousand five hundred dollars to my
son M., to be paid to him by the executors of this my will, and
to'be held, used and enjoyed by him, my said son, during his
life, and at his death to the heir or heirs of his body, should
he have any. Should he die without issue, I give and bequeath
said sum of two thousand five hundred dollars to my son A.**

§ 804. Life estate—Mississippi—I will and bequeath to
my wife L. all of my W. H. place (describing it), also all of my
stock that I may have at my demise, after her demise to go to S.
and her bodily heirs.”

§ 805. Bequest of life estate in income of personalty—
Pennsylvania.—Immediately after the death of my beloved
wife, M., I desire and will that the principal of ail my estate be
and remain securely invested, and that all of the interest or
income of said estate be given to and equally divided between
my children and my two grandchildren share and share alike, the
two latter being children of my son R., deceased.

Upon the death of one or more of the above children and
grandchildren it is my desire and will that those remaining shall
receive the whole of the interest or income of my estate, share
and share alike.

Upon the death of all of the above children and grandchildren
then it is my will that the principal of my estate be divided
amongst my lawful heirs.**

§ 806. Estate for life with power to lease.—I authorize
and empower my wife, to whom I have left the aforesaid real
estate as a life tenant, to lease the premises devised to her for

15 Martin v. Martin, 69 Miss. 315, Miss. 4, 38 So. 196, 10 Prob. Rep.
13 So. 267, 8 Am. Prob. 330. Ann, 538,

16 Snider v. Snider, 160 N. Y. 151, 18 Davis’ Appeal, 100 Pa. St. 201,
54 N. E. 676, 5 Prob. Rep. Ann. 464. 3 Am. Prob. 546.

‘7 Montgomery v. McPherson, 86
i
609 FORMS FOR PARTICULAR CLAUSES § 807

the term of five years or any less period from the date of the
lease, without the consent of the remaindermen, such lease to
provide for the payment of rent to my wife during her life, and
after her decease, if she should die before the end of the term,
then to the remaindermen.”®

§ 807. Devise to wife with power to convey a fee simple
title—I devise to my wife , and to her heirs and as-
signs forever, the farm on which we now live, which is de-
scribed as follows: (Here insert description.) I declare that
she is to have the absolute control and ownership of the said
farm, and that she may sell all or any part of it at any time dur-
ing her life, and the purchaser shall take all the right, title and
interest in such lands which she is capable of conveying. She
shall also have the right, if all or any part of said farm has
not been conveyed by her, to devise the same by will, and the
devisee shall take all the right, title and interest in such lands
which she is capable of conveying or devising. If said estate
or any part thereof has not been conveyed by my wife during
her life, or devised by will then I devise the same not conveyed
or devised by her to my son, , and to his heirs and assigns
forever. I declare, however, that my son is to have no interest
in said farm, or control of any part of it, unless my wife fails
to convey or devise it, as aforesaid, for I intend that if she con-
veys or devises it, the grantee or devisee from her shall obtain
a full and complete fee-simple title, free from any claims on
the part of my said son.”

 

 

§ 808. Gift for life with right to use—Illinois——I devise
all my real and personal property to my wife, P., to have and
to hold or to dispose of so much of the same as she may need or
‘“vish to use during her lifetime, and after her death, if there is-

 

 

 

anything left, the same to be divided among ; and
21
19 See ante, § 378. 21 Henderson v. Blackburn, 104 IIl.
20 See ante, § 380. 227, 44 Am. Rep. 780, 3 Am. Prob.
456.

39—Tuomp. WILLS.
§ 809 ; WILLS 610

~§ 809. Bequest of life estate with remainder to personal
representatives of life tenant—Connecticut.—It is my will,.
and I hereby direct, that four-fifths of the share of any and
every of my sons shall be paid to him as soon as it can be con-
veniently done after my decease; and as to the remaining one-
fifth, it is my will and I hereby direct that the same be invested
in bonds and mortgages, or, if it shall be thought best by my
executrix and executors, in real estate, and kept invested for
his use during his life, and that the interest and income there-
from shall be paid to him during his life, and that on his death
the same shall be distributed or go to his personal representatives.
who would be entitled to his personal estate according to law.”

§ 810. Devise to wife for life, with power of sale, and con-
dition against remarriage—Maine.—To my beloved wife,
C. F. H., I give, bequeath and devise all the rest and residue of
my estate both real, personal and mixed, and all rights and
credits thereunto belonging, to have and to hold to her sole use
and benefit during the full term of her natural life, unless she
shall marry again, in which event her rights in said property shall
cease and determine the same as if she were dead. But-until said
death or remarriage she shall have full power to control and dis-
pose of said property or any part thereof if needed for her sup-
port and benefit. To the children of my daughters, M. and E.,
before named, I give, bequeath and devise whatever may remain
of said property above described, at the decease or remarriage of
my said wife, C. F. H., the same to. be equally divided among
them.”*

§ 811. Life estate to wife and vested remainder in chil-
dren—Illinois.—I devise and bequeath to my wife, so long:
as she remains my widow, the net use and control of all the real
estate and personal property of which I may die seized, for the
support of herself and my children. Should she marry,: from
' and after such marriage, she shall have and control only one-

22Davies v. Davies, 55 Conn. 319, 23 Haseltine v. Shepherd, 99 Maine

11 Atl. 500, 6 Am. Prob. 361. 495, 59 Atl. 1025, 10 Prob. Rep. Ann.
366.
611 FORMS FOR PARTICULAR CLAUSES § 812

third in value of the real estate, and one-third of the personal
property then remaining, absolutely. Should she survive all my
children, they having died without issue, I devise and bequeath
all my real estate and personal property to be hers, her heirs and
assigns, forever. But in case of the death of my wife, leaving
any of my children surviving, I devise and bequeath to them all
of my estate in equal proportions, share and share alike; the heirs
of any of my children taking their deceased parent’s share.**

§ 812. Devise for life with remainder over—Missouri,
North Carolina——(a) I give and bequeath unto my beloved
wife, D., all my estate, both real and personal, during her natural
life or widowhood, and what then remains to be equally divided
among my children (naming them).”°

(b) I leave and devise to my beloved wife, T. E. S., during
her natural life or widowhood, all of my landed estate that I
may possess at my death, and also all. of my personal property
under same restrictions as that of my real estate, except as is
“hereinafter provided; and after her death or widowhood, and
if I should have no heirs of my body, then I give and devise to
W.’s two daughters, C. and Z., all of my real estate in fee.

I give and devise to my sister, Z., wife of W., at the death of
my wife, all the balance of my personal property of every de-
scription, not heretofore disposed of, to have, etc.*®

§ 813. Bequest of personal property for life, with re-
mainder over—Indiana.—I give and bequeath to my beloved
wife, S., after the payment of my just debts and funeral ex-
penses, all my property, both real and personal, during her natu-
ral life, provided she survives me; and at her decease I will and
direct that all the means, rights, credits and effects, property, real
and personal, be sold. And I further will and direct that two
hundred dollars of the proceeds arising therefrom be first given
to J., Jr., my nephew, and son of A. and M., and the residue, it

24 Siddons v. Cockrell, 131 Ill. 653, 26 Britt v. Smith, 86 N. Car. 305,
23 N. E. 586, 7 Am. Prob. 31. 2 Am. Prob. 87.

25 Foote v. Saunders, 72 Mo. 616, ;
2 Am. Prob. 73.
§ 814 WILLS 612

is my will and desire, be divided equally, share and share aliké,
between my brother and sisters.””

§ 814. Devise for a term and for life—Massachusetts.—
I devise and bequeath to M. of Lowell, Massachusetts, my cot-
tage and all that it contains, at Nahant, Massachusetts,—to use
for the term of five years or longer.”*

§ 815. Life estate with power of sale—Maine.—I give, be-
queath, and devise to my wife, M., during her life, all my prop-
erty, real; personal, and mixed, to be used by her accerding to
her desire.

After the death of my wife, I order and direct that all the
property remaining be divided among my brothers and sisters
then alive, and the direct descendants of any deceased brothers
and sisters.”

§ 816. Estate for life with power to convey the fee—Illi-
nois.*°—I give, devise and bequeath to my beloved wife, E.,
in lieu of her dower, certain lots of land being in the county of
Dekalb and State of Illinois, and described as (here follows de-
scription). I appoint and fully authorize my wife, E., with full
power and authority to sell and convey the title to the above-
described lands at any time and convert the avails to her own
use and benefit.**

§ 817. Life estate with power of disposition by will—Ten-
nessee.—All my real estate I give and devise to my said wife
for life, for her own use and benefit, desiring her to keep up and
maintain the same in proper condition as her home.

When she shall come to die I direct and it is my will that she
have full power to dispose by will of one-half of my said realty
in any manner she may see fit, absolutely.*”

27 Brannock v. Stocker, 76 Ind. 558, 80 See ante, § 237.

2 Am. Prob. 333, 81 Walker v. Pritchard, 121 Ill. 221,
28 Dow v. Abbott, 197 Mass. 283, 12 N. E. 336, 6 Am. Prob. 381.

84 N. E. 96, 13 Prob. Rep. Ann. 479, 32 McKnight v. McKnight (Tenn.)
29 McGuire v. Gallagher, 99 Maine 107 S. W. 682. ;

334, 59 Atl. 445, 10 Prob. Rep. Ann. :

338,
613 FORMS FOR PARTICULAR CLAUSES § 818

§ 818. Life estate with power of disposition, remainder to
children—Iowa.—I bequeath to my wife, E., all my personal
property of every kind and description, to have to hold by her
during her life, and at her death the same or whatever remains
to be divided between my children equally between them.®*

§ 819. Devise of life estate, with power of disposal—
Maine.—I give and devise to my wife, C., all the real estate
that I may die seized of, to hold the same during her life for
her maintenance, but not to sell the same, the said real estate to
go to M. at her death, if any remains, providing the said M.
maintains and provides for the said C. decently, from the pro-
ceeds of the farm or otherwise; and providing the said M. fails
to provide for the said C., then the said C. is empowered to call
on the selectmen to provide for her in her own house.**

§ 820. Bequest for life with power of disposal—Maine.—
I give and bequeath to my father and mother, G. and B., or the
survivor of the two, the sum of one thousand dollars, to be paid
to them from the proceeds of my life insurance, for their use
and support during the term of their lives, and if any part of
said sum shall remain unexpended after their death, besides pay-
ing their funeral expenses and putting up gravestones, the said
remainder shall go to my son W.*

§ 821. Devise and bequest for life to wife, with power to
sell and reinvest, remainder to children—Georgia.—I give
and bequeath all of the property, of every kind whatsoever, both
real and personal, that I may own or to which I may be entitled
at the time of my death, including all land, movable property,
money, notes or other choses in action, rights or credits of what-
ever character or description, and no matter where or in what
shape the same may be, to my beloved wife, J., during her life,
and at her death to be divided equally among my children, to wit:

33 Webb v. Webb, 130 Iowa 457, 34Birmingham v. Lesan, 76 Maine
104 N. W. 438, 11 Prob. Rep. Ann. 482, 4 Am. Prob. 268.

281. 35 Copeland vy. Barron! 72 Maine
206, 2 Am. Prob. 190.
§ 822 WILLS ; 614

L., H., W.; J., A. J.. N., R., and an infant daughter now three
months old, with full power in my said wife without any order
of court to sell and convey, in her discretion, any or all of said
ptoperty, upon such terms as to her may seem proper, and re-
invest the proceeds, subject to the same limitations; the purchaser
from her receiving the fee simple title unincumbered by any re-
mainder interest; and her said power to sell and reinvest con-
tinuing and running through all subsequent investments made by
her; the remainder interest of my said children attaching to all
property purchased by her, and lost upon all sold by her. This
wide discretion is vested in my wife with the belief that she will
use it for the best interest of herself and my children, so that my
said estate shall be taken care of and kept together while my wife
lives, and then be divided among my children. No part of the
corpus of said estate is to be spent unless in the judgment of my
said wife the same shall be necessary for the proper maintenance
and education of my minor children.**

§ 822. Life estate with power of disposal—Massachusetts.
—I devise to my wife the residue of my estate, to have and hold
and enjoy during her life, and with power to sell and dispose of
any or all of it, at her pleasure and discretion, as she may think
necessary for her own comfort and happiness, and the reversion
and residue of my said estate, if any, at my wife’s decease is
hereby devised and bequeathed absolutely to ae

 

§ 823. Life estate with power of disposal—New Hamp-
shire.—I give, devise, and bequeath to my beloved wife, S.,
for and during the term of her natural life, all of my property
and estate, real, personal, and mixed, wherever found and how-
ever situated, during the term aforesaid, my said wife to use and
expend what may be necessary for her maintenance and support
during said term.**

36 McMillan v. Cox, 109 Ga. 42, 34 38 Barker v. Clark, 72 N. H. 334,
S. E. 341, 5 Prob. Rep. Ann. 273. 56 Atl. 747, 9 Prob. Rep. Ann. 120.
‘87 Dana v. Dana, 185 Mass. 156, 70
N. E. 49, 9 Prob. Rep. Ann. 493,
615 FORMS FOR PARTICULAR CLAUSES § 824

§ 824. Life estate with power of disposal of fee—North
Carolina.—After all my lawful debts are paid and discharged,
(if there be any), I give and bequeath to my beloved wife, A.,
during her natural life and at her disposal all the rest, residue,
and remainder of my real and personal estate.*®

§ 825. Devise for life with power to convey fee—Massa-
chusetts.—All the rest of my estate, both real and personal,
I give to my beloved wife, F., to have and to hold at her free will
and disposal during the remainder of her life; at her death such
portions of the estate as may remain, I hereby devise and be-
queath to my daughter C. or her heirs.*°

§ 826. Devise to wife for life with limited power of dis-
posal—Michigan.—I hereby give, devise, and bequeath unto
my beloved wife, L., all of my property, both real and personal,
and wheresoever situate, to use the same as she may desire and
wish, for and during her natural life, with full power and au-
thority to grant and convey, in her own name any part or por-
tion thereof she may elect, desire, or wish, and the title so con-
veyed by her shall, for the purposes of the same, be perfect and
free in the respective grantees or vendee, to all intents and pur-
poses, as though it were done by me, and for the purposes of the
same shall be considered the absolute title of my said wife, and
with full power to sell and buy any other personal property in
the place and stead of any other personal that I may die possessed
of with the avails thereof that may to her seem necessary, or that
she may wish; but any existing personal property or real estate,
bought with the avails of other property belonging to me at my
death, or other property substituted in its place and stead, and
remaining at the death of my wife, as that of which I may die
seised or possessed, or for property bought and placed in its
stead, seised or possessed by my said wife in her name, as bought
with the avails of my said property, to descend and go, as here-
after expressed, after the death of my said wife, as any and

89 Parks v. Robinson, 138 N. Car. 40 Sawin v. Cormier, 179 Mass. 420,
| 269, 50 S. E. 649, 10 Prob. Rep. Ann. 60 N. E. 936, 6 Prob. Rep. Ann. 710.
197, ;
§ 827 WILLS * 616

all other property not used by my said wife, under the power
and authority herein expressed; with the further distinct under-
standing that any property so remaining at my death, belonging
to me, shall be burdened with the care and for the maintenance
and support of my said wife, in sickness and in health, for the
purposes of maintaining a home, in name and in fact, as we have
lived in the past, and according to our station in life, as well as
the power and authority hereinbefore granted to my said wife,
and at her death to give her a good Christian burial from the
property so remaining, as hereinbefore stated.

After the performance of the bequests hereinbefore stated, and”
after the death of my said wife, I will, devise, and bequeath all
my property, both real and personal, and wheresoever situate,
unto the following named persons. * * *#

§ 827. Devise to wife for life or so long as she remains
a widow—Pennsylvania.—To my beloved wife, P., so long
as she remains my widow, I give all the income of the home
farm, with all the tenements and appurtenances belonging there-
to, together with all the products arising therefrom, also the
mansion house in which I live.*?

§ 828. Estate for life or widowhood, with power of dis-
posal—Georgia.—I do hereby give and bequeath all my
estate, both real and personal, and all things to me belonging to
my beloved wife, J., to be by her controlled, managed and dis-
posed of with full power, liberty and privilege of selling and
buying, trading and trafficking as seems right and proper to her,
trusting all to her discretion as long as she remains a widow, or
in case she should never marry any more, then during her natural
life, and at any time while the property is under her control she
may help any of the children that may marry and be in need, but
this shall be at her discretion, but if she should marry again,
then the entire remainder or balance of the property shall be
equally divided among my lawful heirs, and she shall be entitled
to receive an equal part with the other heirs, and at her death

41Gadd v. Stoner, 113 Mich. 689, 42 Cooper v. Pogue, 92 Pa. St. 254,
71 N, W. 1111, 2 Prob. Rep. Ann. 90. 37 Am. Rep. 681, 2 Am. Prob. 196.
- 617 FORMS FOR PARTICULAR CLAUSES § 829

the entire balance or remainder shall be equally divided among
my lawful heirs.

§ 829. Executory devise—Connecticut.““—The remaining
third part of the residue of my real estate I give, devise and be-
queath to my niece, M., to be by her used and enjoyed during her
natural life, and upon her decease I give, devise, and bequeath
the same to my nephew, C., if then living; if not, then to be
equally divided between my niece, S., and my grand-niece, J.“

§ 830. Determinable fee—Illinois.“°“—I give, devise and
bequeath to my three sons, M., G. and F., and to their heirs and
assigns forever, the following described real estate (describing
by proper description about 110 acres of land). It is my will
that upon the death of either of them the surviving brother or
brothers shall take such share, like and like; to have and to hold
the same to him or them, or his and their heirs forever; and in
case all three should die without issue, then it is my will that the
above-mentioned property in this bequest go to J. and M., their.
heirs and assigns, forever.*’ (b) I devise and bequeath the resi-
due of my property, real and personal, to my two grandchildren,
M. and J., share and share alike; but should either of my grand-

. children die without an heir of his or her body living or in being
‘at the time of the death of such grandchild, then it is my will
that the share of such deceased grandchild shall go to my son J.,
-absolutely ; and in case both of my said grandchildren should die
without heirs of their bodies living or in being at the time of
their death, then it is my will that both shares, or, what is the
same thing, the whole of my estate, shall go to my son, J., abso-
lutely.** |
43 Melton vy. Camp, 121 Ga. 693, 49 46 See ante, § 235.
S. E. 690, 10 Prob. Rep. Ann. 147, 47 Gannon v. Peterson, 193 Ill. 372,
' 44See ante, § 242. 62 N. E. 210, 55 L. R. A. 701, 7 Prob.
45 Ingersoll v. Ingersoll, 77 Conn. Rep. Ann. 254.

408, 59 Atl. 413, 10 Prob. Rep. Ann. 48 Fifer v. Allen, 228 Ill, 507, 81
336. N. E. 1105, 13 Prob. Rep. Ann. 610.
.§ 831 WILLS 618.

§ 831. Defeasible fee—TIllinois.°—After the payment of
my funeral expenses and just debts I give, devise and bequeath
_to my son J. my following described real estate, to wit: (describ-
ing the property), also all wagons and farming implements; also
the undivided half of all the beds and bedding and household and
kitchen furniture, and one undivided third part of all my horses’
and cattle, and all of the hogs, and one thousand dollars in cash
or government bonds at my death. But should the said J. die
leaving no children, then the said devised property above de-
scribed to descend to W., M. and P.°°

§ 832. Base or determinable fee—Illinois."—I will and
bequeath to my beloved sons J. and G. and my beloved daughters
S. and M., all the remainder of my estate, both personal and real,
of whatever kind and wherever situated, of which I may die,
seised or possessed, to be equally divided between them, share
and share alike, each one taking one-fourth; and if one or more
of said devisees should die without leaving a wife or husband or
child or children, then to the survivor or survivors! of them and
to their heirs and assigns, and to their sole use and behoof for-
ever.?

§ 833. Defeasible fee—Missouri.—I give, devise and be-
queath unto my two sons, M. J., Jr., and J. E, and unto their
heirs and assigns forever, my farm, lying and being in the county
of St. Louis and state of Missouri, which lies in the southern
limits of Kirkwood, containing eighty (80) acres, be the same
more or less. It is my will that the same shall not be sold, at
least not before the younger of the two, that is, J. E. becomes of.
lawful age; and should either of them die without issue then the
‘survivor, his heirs and assigns to take, own and have the part
and portion hereby bequeathed to the one so dying. And in the
event both should die without leaving any issue, then it is my

49 See ante, § 235. Co., 229 Ill. 486, 82 N. E. 418, 13

50 Bradsby v. Wallace, 202 Ill. 239, Prob. Rep. Ann. 122 (held that the
66 N. E. 1088, 8 Prob. Rep. Ann. 586. words “should die,” mean die either

51 See ante, § 235. before or after the testator).

52 Carpenter v. Sangamon Loan &c.
\ ' ’
619 FORMS FOR PARTICULAR CLAUSES § 834

will that my surviving heirs (with the exception of my son J.
T., who has had his share) shall have such property, like and
ike, oF  #

It is my will that none of my real estate herein devised be sold
until the youngest in each bequest and devise respectively becomes
of lawful age, and that until such time or times my executrix in
such capacity shall lease the same to the best advantage and col-
lect the rents and income therefrom and out of the proceeds shall
first pay all taxes and assessments lawfully made on said real
estate; and, secondly, pay to those heirs which are of lawful age
their share proportionately of the rent due them under this will
on said real estate; thirdly, keep and maintain my minor heirs
and children, clothe and feed them. And I enjoin upon her, my
executrix, to see that my minor children receive a good English
education.”*

§ 834. Determinable fee—North Carolina.—I lend unto
my wife, A. E. H., two hundred ninety acres of land during her
natural life or widowhood; at the death or marriage of my said
wife, I give and bequeath to my four youngest children, A. H.,
O. H., R. H., and L. H., the above-named two hundred ninety
acres of land, known as follows (description). And if either or
all of the above girls die without leaving a lawful heir, my will
and desire is that the said lands be equally divided between my
two sons, J. Hiand J..o**

§ 835. Devise of estate tail—Pennsylvania."—At _.y
wife’s death I devise the same property which she held during
her life to my granddaughter, N. R., and the heirs of her body.**

§ 836. Devise of real estate to two with power of sale
after five years and trust in proceeds of sale for one.—Item.
I give and bequeath unto the said Dr. Charles F. Cogswell and
the said Dr. Newbert J. Hall, their heirs and assigns in fee sim-

53 Gannon v. Pauk, 200 Mo. 75, 98 55 See ante, § 238.
S. W. 471, 12 Prob. Rep. Ann. 685. 56 Ralston v. Truesdell, 178 Pa. 429,
54 Harrell vy. Hagan, 147 N. Car. 35 Atl. 813, 1 Prob. Rep. Ann. 1.
111; 60 S. E. 909, 125 Am. St. 539, 13
Prob. Rep. Ann. 517,
§ 837 WILLS 620

ple, all my real estate wherever or however the same may be
situated; but I limit and restrict the sale and conveyance and
transfer of the dwelling-houses numbered nine (“9’’) and eleven
(“11”) Center street, in said Brookline, until the elapsing of five
years after my decease; also, that all the furniture in dwelling
No. “9” shall go with the said dwelling in the bequest; also that
dwelling numbered nine (“9”) together with the furniture
therein shall be used, occupied and enjoyed as and for a home
for said Dr. C., Dr. H., H. R. R. and her son J., so long as said
Dr. C. and Dr. H. shall own the same; also that whenever said.
dwellings shall be sold, that out of the proceeds of such sale, the,
‘said Dr. C. shall be paid and receive from my estate or my said
executors the sum of six thousand dollars without limit, quali-
fication, or restriction, as his sole and separate property; and di-
rect and will that the balance of the money or estate remaining
from the sale of said dwelling-houses shall be invested in suit-
able and profitable real estate in said Brookline or in the city of
Boston, in our County of Suffolk and that such part or por-
tion of the said real estate as may be fit and proper is to be had,
‘used, occupied and enjoyed as and for a home as and for said
Dr. C., Dr. H., H. R. R. and J. I also direct and will that said
Dr. C. shall pay unto the said Dr. H. during his natural life one-
third of the net income of the premises now numbered “1356”
on Beacon street, in said Brookline, and at this date occupied by
one P.; and I also direct and request that the said Dr. H. and
the said Dr. C. see to it that the said H. R. R. be suitably and
‘comfortably maintained during her natural life. And I also
‘direct and will that upon the decease of either said Dr. C. or
Dr. H. the whole of the remaining estate either real, personal or
mixed then shall descend to the survivor of them discharged of
all limitations, conditions, restrictions and free in full fee simple
to the said survivor.*”

§ 837. Devise of house and contents and land therewith to
wife for life, then to son.—I devise my house and premises
connected therewith and my furniture and effects of household

_ 57 Hall v. Cogswell, 183 Mass. 521, 67 N. E. 644, 8 Prob. Rep. Ann. 735,
621 : FORMS FOR PARTICULAR CLAUSES § 838

use or ornament therein or thereto belonging, save such of the
same as I may otherwise by my will or any codicil thereto spe-
cifically dispose of to my wife, , during her life and after
her death to my son, , absolutely. I direct that my wife
shall, during her life, at her own expense, keep the said house
and premises and effects in good repair and condition and in-
sured against fire to the full value thereof in some good insur-
ance company and to the satisfaction of my trustees in all re-
spects.

 

 

§ 838. Devise to grandsons, providing for reversion in
case of death without issue—Mississippi—I give and devise
to my two grandsons, G. and J., my Big Sand place, (etc.), and
if either of them die without issue, it is my will that the land
devised to him go to my surviving grandson, and that if both of
them die without issue surviving them, it shall revert to my son
J. and daughter R.°*

§ 839. Life estates to children, contingent remainder to
grandchildren—Maryland.*°—I give, devise, bequeath and
desire that all the dividends, interests, rents and net income de-
rived from my aforesaid estate or property shall go to and be
divided equally between my son F. and my daughter A. until my
daughter H., wife of Colonel J. W. R., United States Army,
becomes a widow, whenever my said daughter H. becomes a
widow then in that case all the said dividends, interest, rents and
net income derived from my aforesaid estate or property to be
divided equally between my son F., my daughter A. and my
daughter H., if either my son F. or my daughter A. die, then in
that case all the said dividends, interests, rents and net income
derived from my aforesaid estate or property to be divided
equally between my aforesaid son or daughter that remains alive
and my daughter H., then whenever either of my last two chil-
dren die then in that case all the said dividends, interest, rents,
and net income derived from my aforesaid estate or property to

58 Halsey v. Gee, 79 Miss. 193, 30 59 See ante, § 241. ;
So. 604, 7 Prob. Rep. Ann. 181.
§ 840 WILLS 622

go to the last of my aforesaid children that remains alive as long
as my said child lives then after all my aforesaid children die
then in that case all my aforesaid estate or property and divi-
dends, interest, rents and net income derived therefrom to go to
and be divided between the children the lawful heirs of my afore-
said children to receive and be allowed and paid what would have
been their parents’ share of my aforesaid estate or ‘property,
dividends, interest, rents and net income derived therefrom.

§ 840. Bequest for sole and separate use of daughter.“—
I give to my daughter the sum of dollars for her sole
and separate use, free from the control or interference of her
husband or any other person.

 

 

~ §841. Estate for years, remainder vested in grandchild—
New York.*—Sixteenth. I give, devise, and bequeath to my
wife, M., also in lieu of dower, and my two sons, G. and D., the
use, for fifteen years after my death, of all my real estate and
farms which is situate in the towns of Milford, Morris, Middle-
field, and Maryland, in the county of Otsego and state of New
York, and also giving and bequeathing the use of all the teams,
harness, horses, cows, young cattle, sheep, and all farming and
dairying tools and utensils on or belonging to any and all of the
farms in-the towns above named. But, as a condition, all of
said farms and all of said personal property are to be maintained
and kept in as good order and condition as they are in at the
time of my death; meaning by this that the personal property left
on said farms at the end of fifteen years shall be as valuable as
it is at the present time, and the real estate shall be in as good a
state of cultivation and capable of as much production, and the
fences and buildings thereon in as good a state of repair, as they
now are, so that my grandchild or children mentioned in the next
or seventeenth devise or bequest or subdivision shall have and
receive as much personal property, and of as much value, as the
personal property herein mentioned is worth at the time of my
death. In case of the death of any of the persons above named,

60 Reilly v. Bristow, 105 Md. 326, 81 See ante, § 243.
66 Atl. 262, 12 Prob. Rep. Ann. 624. 62 See ante, § 239,
623 FORMS FOR PARTICULAR CLAUSES § 842

then the two surviving shall take the use of the property herein
intended, share and share alike, to the end of the fifteen-years
term above mentioned; and, in the case of the death of two of
the persons above named, then the survivor shall take the entire
use of the farms and property to the end of the term aforesaid;
intending to give one-third of the produce and profits of said
farms, and real estate and stock, etc., to each of the persons
above named, to the end of the fifteen years, or so much of said
term as they all live. Seventeenth. I give, devise, and bequeath
all my real estate and farms in the towns of Milford, Morris,
Middlefield, and Maryland, in the county of Otsego, New York,
and all the personal property upon or belonging to said farms,
which is more particularly mentioned in the last preceding six-
teenth item, subdivision, or devise or bequest of this, my last will,
to my grandchildren, to be equally divided between them, share
and share alike, subject only to the fifteen-years use of the same
heretofore provided for; intending hereby to grant and devise
to my grandchild or children all the land and personal property
mentioned, referred to, or intended in the preceding sixteenth
subdivision of this my last will.

§ 842. Income to wife, estate vesting in children at her
death, to be distributed when youngest comes of age—Iowa.
—I give and bequeath to my wife, A., my family horse, buggy,
and harness, and all of my household furniture of every kind
and nature used by us in and about our homestead. I also give
and bequeath to my said wife the one-third (1/3) of the net
income of my whole estate, to be paid to her in monthly install-
ments by my executor hereinafter named, commencing thirty
days from and after my death. And, in the event that such
monthly installments should not equal the sum of seventy-five
(75) dollars per month, my said executor shall pay to my said
wife enough out of the remaining funds of my estate to make
her income at least seventy-five (75) dollars per month, and
shall also pay to my said wife out of the income of my estate,
after deducting the one-third (1/3) above mentioned, going to

63 Wilber v. Wilber, 165 N. Y. 451, 59 N. E. 264, 6 Prob. Rep. Ann. 392.
§ 842 WILLS 624

her, a reasonable compensation per month for the care, mainte-
nance, clothing, schooling, and support of all my minor children
until each shall become of lawful age, as may be agreed upon by
my said wife and my said executor. And also, in the event that
my said wife shall elect to build her a home on any of my prop-
erty, the said executor is hereby authorized, empowered, and
directed to erect such home for my said wife out of the remain-
ing two-thirds (2/3) of the funds of my said estate, not, how-
ever, exceeding the sum of thirty-five hundred (3,500) dollars
to be expended therefor; but the title of such home shall remain
in my said estate, subject to the use of same by my said wife
during her life as a homestead only. The allowance above pro-
vided for my said wife shall be paid her during her life, and at
her death said executor shall provide the means from my said
estate for payment of last sickness, funeral expenses, proper
burial, and suitable monument. The above provision made for
my said wife shall be received by her in lieu of all dower, right,
title, and interest in and to my said estate. 2d. The residue of
my estate, both real and personal, I give and bequeath ‘to my
children, viz, ML, B.C, EM, C, CA. GA. BC, BG,
C. C. C., and G. A. C., equally; but the said property is to be
held by my said executor hereinafter named until after the death
of my said wife, A. A. C. And, in the event that my said wife
shall die before the youngest of my surviving children become
of age, then said property shall be held by my said executor until
my said youngest surviving child shall become of age, at which
time the whole of the remaining part of my said estate shall be
divided equally between my said children then living, share and
share alike, and descend to them in fee simple. After all my
debts are fully paid and discharged, should any. surplus moneys
remain in the hands of my executor over and above what will
be actually necessary to provide for the payment already directed,
my said executor at the end of any year shall pay to each one of
my children such sum of money as the surplus on hand will war-
rant. And should any of my said children at the time of such
payment not be of age, the amount going to such child or children

shall be retained by my said executor, and loaned by him for the
625 FORMS FOR PARTICULAR CLAUSES § 843

use and benefit of such child or children until they become of
age, and when they become of age he shall turn the same over to
them. The payment made to each of my said children shall be
equal, each sharing alike.**

§ 843. Devise to son for life, remainder to church, also of
- another remainder to church upon definite failure of issue te
son—Arkansas.—Sixth. I bequeath all that part of block
seventeen (17) in that part of the city of Helena, Arkansas,
known as “New Helena,” which I die seized of together with the
streets adjoining the same and which I own, to my beloved son,
T., for his natural life and after his death to the Vestrymen of
St. John’s Episcopal Church of Helena, Arkansas, and their
successors in office, with full power to them to sell, exchange
or dispose of the same whenever in their judgment it is best to
be done, and the said property, or any property received by them
in exchange therefor, or the proceeds of any sales thereof made
by them, they shall use for the benefit of said St. John’s Church,
as they may deem best for its interests. Seventh. All the resi-
due of my estate I devise and bequeath to my beloved son, T.,
for his natural life and after his death to the heirs of his body,
and if he dies without any heirs of his body all of said property
shall vest in the Vestrymen of St. John’s Episcopal Church of
Helena, Arkansas, to be used by them or disposed of in the same
manner and for the purposes as provided for in clause six (6)
of this instrument.

ARTICLE 11. Provistons as TO TIME OF VESTING. COoN-
TINGENT Estates

SECTION SECTION
844. Legacy to vest when legatee is 848. Bequest to son when he attains
twenty-one. age of twenty-one with main-
845. Legacy to vest on marriage, tenance meanwhile,
846. Vested remainder. 849. Remainder vesting at testator’s
_ 847. Remainder vesting at death of death, enjoyment postponed.
life tenant. 850. Remainder to children jointly,

vesting on testator’s death.

= Wilhelm v. Calder, 102 Iowa 342, 65 Biscoe v. Thweatt, 74 Ark. 545,

71 N. W. 214, 2 Prob. Rep. Ann. 627. 86 S. W. 432, 10 Prob. Rep. Ann. 115,
66 See ante, ch. 13.

40—Tuomp. WILLs.
§ 844

SECTION

851. Devise of fee to vest when son
reaches majority.

852. Legacy to son to vest at twenty-
five, interest in the meantime
to be applied for maintenance,
with power to apply principal
for his advancement.

853. Legacies to nephew and niece to
be paid at twenty-one or on
marriage.

854. Legacies to several children to
be paid at twenty-one or on
marriage.

855. Remainder vesting at testator’s
death.

856. Legacies in trust to several with.

restraint on anticipation by fe-
male legatees during cover-
ture.

WILLS

626

_ SECTION

857. Legacy in trust for the family of
a son who is or may become
bankrupt.

858. Fee with remainder contingent
on death without disposal or
without issue.

859. Devise to son for life, with con-
tingent remainder to lawful
heirs— Not within Rule in
Shelley’s Case.

860. Estate for life with remainder
over, vested if children exist
when testator dies, contingent
if they do not.

861. Absolute bequest in trust for
daughters, limited over on
marriage and birth of issue.

862. Bequest to daughter on termina-
tion of marriage.

§ 844. Legacy to vest when legatee is twenty-one.—I be-

 

queath the sum of

dollars to

of , in case and when

 

 

he shall attain the age of twenty-one years.

§ 845,
of

 

 

of dollars to

 

Legacy to vest on marriage.—I bequeath the sum
, in case and when she shall at-

tain the age of twenty-one years or marry under that age.

§ 846. Vested remainder.—I devise and bequeath all the

rest and residue of my estate to my wife, for and during the
term of her natural life, in trust for the use and benefit of her-
self and our children. I authorize her to sell any part of such real
estate which she may think proper, the process of such sale or
sales to be invested on the trusts of this will, and also to lease
the real estate. I further authorize her to use of the principal
of the estate, if it shall be necessary for the support of herself
and her children, or for their education and advancement in
life, all of which I confide to her discretion. I devise and be-
queath all my estate, real and personal, remaining at the death
of my wife, to my children by my said wife, share and share alike,
absolutely in fee simple. The child or children of a deceased child
shall stand in its or their parent’s place and stead and receive and
627 FORMS FOR PARTICULAR CLAUSES § 847

have the share and interest its and their parent would have been
entitled to if living.*’

§ 847. Remainder vesting at death of life tenant.—I give
and bequeath to the said E., G., Jr., and W., trustees above named,
the further sum of ten thousand dollars in trust; and I direct
them to invest the same in their own names, and to pay to K.,
daughter of the late C., the income and net profits therefrom
during her life and after her decease to pay, distribute and divide
the said principal fund, however the same may be then invested,
to and among the children of said K. and the issue of any de-
ceased child by right of representation, such issue taking the
share which would have belonged to their deceased parent.

§ 848. Bequest to son when he attains age of twenty-one,
with maintenance meanwhile.—I bequeath the sum of
dollars to my son , if he shall attain the age of twenty-one
years, with interest in the meantime at the rate of per
cent. per annum, to be computed from my decease, and to be
paid to his guardian for his maintenance and education; and if
my said son shall die under the age of twenty-one years, then the
said legacy shall fall into my residuary estate; provided, that
such legacy shall not vest as a transmissible interest in my said
son unless and until he shall attain the age of twent-one years.
And if my said son should die before me, or under the age of
twenty-one years, I bequeath the same sum of dollars (and
interest) to absolutely (or I declare that the said legacy
shall fall into and form part of my residuary personal estate).

 

 

 

 

 

§ 849. Remainder vesting at testator’s death, enjoyment
postponed.—At the death of my wife I direct that all my real
estate shall descend and go to my two sons, L. and W., in equal
proportions, each taking share and share alike, and if either of
them shall be deceased leaving children surviving them, then

87 Roberts v. Roberts, 102 Md. 131, ®8 Crapo v. Price, 190 Mass. 317,
62 Atl. 161, 1 L. R. A. (N. S.) 782, 76 N. E. 1043, 11 Prob. Rep, Ann.
111 Am. St. 344, 11 Prob. Rep. Ann. 270.

101. 69 See ante, § 254,
§ 850 WILLS 628

such child or children shall inherit all their father’s interest in
my real estate, and in case either of my sons being deceased and
leaving no child or children living, then the surviving son shall
inherit all my real estate at the death of my wife.”

§ 850. Remainder to children jointly, vesting on testator’s
death.—I also desire that my wife M., have the use and oc-
cupancy of any and all lands that I may own at my decease dur-
ing her natural life, on the condition that she pay the taxes on
them, and keep said land free from incumbrances, and at the
decease of my said wife I desire that said lands be owned equally
and jointly by my children (naming them) or in case of the de-
cease of any of said children, his or her share to descend to the
heirs of their body, if any, and if not, to those of my children
surviving.”

§ 851. Devise of fee to vest when son reaches majority.—
I give and bequeath to the said S. the rents and profits of twenty
(20) acres of land situate, lying and being in Warren township,
Marion county, Indiana, near and adjoining to the lands of
Esquire S., until the youngest child of the said S. shall become
of age, upon the happening of which event it is my will and
pleasure that the fee simple of said land shall then vest abso-
lutely in the said S. and his heirs, and may by him or them be
disposed of as he or they may judge best for his or their
interest.”

§ 852. Legacy to son, to vest at twenty-five, interest in
the meantime to be applied for maintenance, with power to
apply principal for his advancement.—I bequeath unto my
son the sum of dollars, if and when he shall attain
the age of twenty-five years, but not otherwise. And I direct that
interest on the said sum, after the rate of per cent. per an-
num, shall in the mean time, from my death until my said son

 

 

 

70 Campbell v. Bradford, 166 Ind. 74 N. E. 980, 10 Prob. Rep. Ann.
451, 77 N. E. 849, 11 Prob. Rep. Ann. 616.
561. 72 Shimer v. Mann, 99 Ind. 190, 50
™ Taylor v. Stephens, 165 Ind. 200, Am. Rep. 82, 4 Am. Prob. 310.
629 FORMS FOR PARTICULAR CLAUSES § 853

shall attain the age of twenty-five years or die under that age,
be paid and applied for or toward the maintenance and education
of my said son. And I further direet that it shall be lawful for
my said trustees or trustee for the time being, with the consent
of my said wife, to be testified by writing under her hand, but,
if my said wife should then be dead, in the proper discretion of
my said trustees or trustee for the time being, to advance and
pay the said sum of dollars, or any part thereof, for the
benefit or advancement in the world of my said son, notwith-
standing that he may then be under the age of twenty-five years:
provided always, etc., that the said legacy of dollars shall
not vest as a transmissible interest in my said son unless and
until he shall attain the age of twenty-five years.

 

 

§ 853. Legacies to nephew and niece to be paid at twenty-
one or on marriage.—I give to my nephew, , if he at-
tain the age of twenty-one years, the sum of dollars. I
give to my niece, ; dollars, if she attain that age or
marry. And, if either my said nephew should die before me or
‘under age, or my said niece should die before me or under age
and without having been married, I give the legacy intended for
such nephew or niece so dying to the other of them, if he or she
attain his or her majority, or (as to my said niece) if she marry;
-and if both should die before me, or under age, and (as to my
-said niece) unmarried, I give their respective legacies to my
cousin,

 

 

 

 

 

§ 854. Legacies to several children to be paid at twenty-
one or on marriage.—I bequeath the sum of dollars
unto and equally between such of my children as being sons
shall attain the age of twenty-one years, or being daughters shall
attain that age or previously marry; and I direct that such leg-
acy shall carry interest in the meantime at the rate of per
cent. per annum from my decease, to be applied by my trustees
at discretion toward their maintenance and education.

 

 

§ 855. Remainder vesting at testator’s death.—I give to
-———. the use of my house on Newbury street for life, on condi-
§ 856 WILLS 630

tion that she occupies it, and at her decease said house shall fall
into the rest and residue of my estate and be disposed of as is
by said will provided for the disposal and residue.”

§ 856. Legacies in trust to several, with restraint on an-
ticipation by female legatees during coverture.—I bequeath
the following legacies, that is to say, etc. (legacies to several).
And I declare that the legacies lastly hereinbefore bequeathed
to such of the legatees thereof as are females shall be without
power. of anticipation. And I direct that if any such legatees
shall at the time of my death be under coverture, my trustees
or trustee shall retain the legacy or legacies during the cover-
tures of such legatees respectively, and invest the same, with the
consent of the legatees entitled thereto respectively, etc., and
with the like power of varying investments with the consent of
the legatees entitled to the legacies so retained respectively; and
shall pay the income arising from such investments to the leg-
atees entitled to the legacies producing such income respectively
from time to time during their respective covertures, without
power of anticipating such income by way of assignment, charge
or otherwise.

§ 857. Legacy in trust for the family of a son who is or
may become bankrupt.—I bequeath the sum of dol-
lars to my said trustees, in trust to pay and apply the same sum
and the income thereof, or any parts thereof respectively, unto
and for the benefit of the wife and children for the time being
of my son, , or of some or any of them, for such interest or
interests, and with such conditions and restrictions, and in such
manner in all respects, as my said son shall appoint ; and in default
of such appointment, and subject thereto, and in the meantime
until any such appointment shall be made, upon trust to pay and
apply the said legacy and the income thereof, or so much thereof
respectively as shall not have been appointed by my said son as
aforesaid, unto and for the benefit of the wife and children for
the time being of my said son in equal shares; and if there should

 

 

73 Cushman v. Arnold, 185 Mass. 165, 70 N. E. 43, 9 Prob. Rep. Ann,
490.
cA
631 FORMS FOR PARTICULAR CLAUSES § 858

be only one of such objects, then unto and for the benefit of such
only object.”*

§ 858. Fee with remainder contingent on death without
disposal or without issue.—I devise and bequeath all the bal-
ance of my property, real, personal and mixed, to my sister, S. B.,
she to have the same, but should she die without issue and leave
any of the property at her death given her by this will, then
in that event, my sister S. G. and her children are to have said
property.”

§ 859. Devise to son for life, with contingent remainder
to lawful heirs—Not within Rule in Shelley’s Case.—I give
and devise unto my son J. all my lands which I may now or may
hereafter own for and during his life and after his death to his
lawful heirs, born of his wife.7® ,

§ 860. Estate for life with remainder over, vested if chil-
dren exist when testator dies, contingent if they do not—
At the decease of my said wife, or in case of her marriage after
my decease, I give, bequeath and devise all the property in her
hands and possession at the time of the happening of either
event in equal shares to the children of my two sons, C. and A.,
and their heirs forever.”

§ 861. Absolute bequest in trust for daughters, limited
over on marriage and birth of issue—I give and bequeath to
my daughters, C., E., V. and A., twenty thousand dollars apiece,
to be invested in United States bank stock, or in government
securities, which stock or securities, I do hereby direct that my
executors, hereinafter named, shall hold in trust for my said
daughters respectively, and shall apply the dividends, interest or
profits of said stock or securities to the use and benefit of my
said daughters, C., E., V. and A., severally and respectively, as

74 See ante, § 337. 32, 50 S. E. 457, 107 Am. St. 514, 10
75 Galloway v. Durham, 118 Ky. Prob. Rep. Ann. 180.
544, 81 S. W. 659, 26 Ky. L. 445, 111 77 Hayward v. Spaulding, 75 N. H.
Am. St. 300, 9 Prob. Rep. Ann. 276. 92, 71 Atl. 219, 14 Prob. Rep. Ann,
76 Thompson v. Crump, 138 N. Car. 390.
§ 862 WILLS 632

the said dividends, interest or profits shall accrue; and from and
after the intermarriage of any of them, then my said executors
shall hold the said bank stock or other securities belonging to
said daughters so marrying, in trust for the following purposes;
that is to say, in trust for the maintenance of her and her hus-
band during their joint lives; then in trust for the survivor of
the said husband and wife during his or her life; and after the
death of such survivor, then in trust for such issue as she may
leave at the time of her death; and in case she shall die without
leaving such issue then in trust for her surviving sisters (my
other daughters), and the issue of any deceased sister, such issue
taking such share as the deceased sister, whom they represent,
would have taken had she been alive to take; and it is my inten-
tion that the stock and securities, as also the dividends, interest
or profits thereof, shall be utterly free from the power and con-
trol of the husbands of my said daughters.”*

§ 862. Bequest to daughter on termination of marriage.—
And in the event of any of my said daughters becoming a widow,
or otherwise becoming lawfully separated from her husband,
then (my executors are directed) to distribute, transfer and
convey unto such of my said daughters, the net one-fifth part of
the remainder of my said estate, in her own right, and in lieu
of the further distribution and payment to her of any of the
said income.”

Article 12. Grirrs To CHARITIES®®

SECTION SECTION
863. Bequest to charity, beneficiaries 869. Bequest to poor of a foreign.
to be selected by life tenant. city.
864. Bequest for charitable use. 870. Bequest to worthy poor of a
865. Devise for charitable use. city.
866. Bequest to charity on condition 871. Bequest for benefit of poor.
subsequent. 872. Devise to church to be applied
867. Charitable bequest to purchase to foreign missions.
and distribute religious books. 873. Gift to home for aged women.
868. Charitable gift for use of most 874. Bequest to endow bed in hos-

deserving poor of a city. pital.

78 Snyder v. Baker, 5 Mackey (D.
C.) 443, 6 Am. Prob. 552.
79 Born v. Horstmann, 80 Cal. 452,

22 Pac. 169, 338, 5 L. R. A. 577, 2
Am. Prob. 200.
80 See ante, §§ 78, 101, 187, 271.
633 FORMS FOR PARTICULAR CLAUSES § 863

SECTION SECTION
875. Bequest for charitable purposes. 883. Alternate charities.
876. Remainder to charity. 884. Bequest to charities in discre-
877. Bequest to town for school pur- tion of executors.
' poses. 885. Request not to exclude certain
878. Trust for suppressing sale of in- classes of books from library.
toxicating liquors. 886. Charitable objects, subscrip-
879. Devise to charity or to bishop tion to.
individually upon failure. 887. Bequest absolutely, with request
880. Charitable bequest in discretion to use for charities.
‘ of executor. 888. Gift to charitable use in foreign
881. Bequest to Salvation Army, country—A, municipal corpo-
valid on incorporation. ration as trustee.

882. Bequest to bishop for charity. 889. Bequest to foreign charities.

§ 863. Bequest to charity, beneficiaries to be selected by
life tenant.—I bequeath and direct that the income from [de-
scribing certain securities] shall go, be held, controlled and
managed by my friend and relative, M., for and during her
natural life, and for her and to her sole benefit, and, at the death
of M., I desire, and my will is, that the principal of the securities
in this subdivision of my will mentioned, and so much of the
interest arising therefrom as shall remain in the hands of M.
unexpended, shall go to the support and encouragement of such
worthy and charitable and educational and religious institutions
of the Roman Catholic faith, as my said friend, M., may deter-
mine, and she is charged with the duty of making such disposi-
tion of said means as is herein provided, by will properly exe-
cuted before her death, it being my intention that so much of
the funds herein entrusted to said M., for her use and benefit
during her natural life, as may remain at her death, shall not
descend to her heirs, but go, as above provided, to some Catholic
institution or institutions.**

§ 864. Bequest for charitable use.-—At the decease of my
wife E., I give and bequeath all my estate, real and personal,
for the preaching of the Gospel of the blessed Son of God, as
taught by the people known now as Disciples of Christ. The
preaching to be well and faithfully done in Lorain county, in

81 Quinn v. Shields, 62 Iowa 129, 17 N. W. 437, 49 Am. Rep. 141, 4 Am.
Prob. 386,
*§ 865 WILLS 634

Birmingham, and at Berlin, in Erie county, Ohio, and I nominate
and appoint J. C., S. W. and S. S., executors of this item of my
last will and testament and I request them to do the business
without remuneration.*?

§ 865. Devise for charitable use.—I give, devise and be-
queath all the rest and residue of my estate, real and personal,
to my executors, or, in case my said wife survives me, to whom-
soever upon her decease shall be legally entrusted with completing
the settlement of my estate, upon trust, to hold, take care of and
manage, and receive the same, and the rents, profits and income
thereof, until an act of incorporation can be obtained from the
General Assembly of the State of Connecticut, by the name of
the Smith Memorial Home; and with such powers as may be
necessary and proper to carry into full. effect the purposes and
objects of this bequest; and to convey, transfer, assign and de-
liver the said trust fund, with its accumulations, to the corpora-
tion created by such act, as soon as such corporation shall be
duly organized. The purpose and object of this bequest is the
founding of a home for aged, respectable, indigent women, who
have been residents of the city of New London, under such
regulations as may be prescribed or provided by such act of in-
corporation. I direct that the building and real estate necessary
for such home shall not cost, out of the fund hereby provided
by me, more than twenty thousand dollars. I desire that my
executors, or whoever shall be legally my representatives for
the execution of this will, when said’ corporation is formed, to be
corporators therein; and also then, and ever after, the persons
who shall be pastors, for the time being, of the First and Second
Congregational churches in said town of New London; and also,
in the first place, such other persons as my said legal representa-
tives, executors or otherwise, and the said pastors for. the time
being, shall associate with them and that when once such corpora-
tion has been duly organized, any vacancy in their number, other
than of the pastors of said churches, who are ex officio members,

82 Sowers v. Cyrenius, 39 Ohio St. 29, 48 Am. Rep. 418, 4 Am. Prob.
541.
635 FORMS FOR PARTICULAR CLAUSES § 866

be filled by the corporation itself as such vacancy occurs. I
suggest that the plan of the Eliza Huntington Memorial Home,
of Norwich, be adopted in the management of the home hereby
provided for, so far as the same shall be applicable.**

§ 866. Bequest to charity on condition subsequent.—I
give and devise to my executors the sum of thirty-two thousand
dollars in trust to invest the same and pay the interest thereof
semi-annually to the New York Home for the Blind, at No. 219
West Fourteenth Street, so long as that institution shall maintain
and care for W. G., now an inmate of that institution, and in
case he shall be so cared for and maintained during the balance
of his life, then in trust to pay the principal sum of said thirty-
two thousand dollars to said institution. And in case the said
society shall cease to exist or to maintain an institution suitable
for the care of the blind during the life of said W. G., then in.
‘trust to pay the income of said thirty-two thousand dollars to any
other society that will maintain and care for said W. G., and
which he may select, and to pay the principal of said thirty-two
thousand dollars to such society as shall at the death of the said
W. G. be supporting and maintaining him.**

§ 867. Charitable bequest to purchase and distribute re-
ligious books.—I hereby give, devise and bequeath in trust
to I. of Yarmouth, and F. of Newcastle, all that may remain
both of my real and personal estate, and further direct the said
I. and F. to expend all that may remain in the purchase and
distribution of such religious books or reading matter as they
shall deem best and as fast as the funds shall come into their
hands.**

§ 868. Charitable gift for use of most deserving poor of
a city.—After the death of my said wife, I hereby empower
and direct my said trustees or trustee for the time being of this

83 Coit v. Comstock, 51 Conn. 352, 85 Simpson v. Welcome, 72 Maine
50 Am. Rep. 29, 4 Am. Prob. 164. 496, 39 Am. Rep. 349, 2 Am. Prob.
84 Livingston v. Gordon, 84 N. Y. 248.
136, 2 Am. Prob. 356.
§ 869 WILLS 636

my will, to employ the annual income of the said moneys so
invested, and from time to time to be invested, for the relief of
the most deserving poor of the city of Paterson aforesaid for-
ever, without regard to color or sex, but no person who is known
to be intemperate, lazy, immoral, or undeserving, to receive any
benefit from the said fund.

And for the purpose of preserving and continuing a perpetual
succession of trustees for the purpose of carrying into full effect
the provisions of this my will, I do hereby empower my said
trustees or trustee for the time being, if any, whether retiring
from the office of trustee or not, or if more, then I direct and
hereby empower the proving executors or executor for the time
being, or the administrators or administrator for the time being
of the last surviving trustee, to substitute by any proper writing
under his, her or their hands or hand, any fit person or persons,
in whom alone, or as the case may be, jointly with the surviving
or continuing trustees or trustee, my trust estate shall vest or
proper assurances be vested.**

§ 869. Bequest to poor of a foreign city.—I give the bal-
ance of my estate to the poor of Voorst, Gelderland, Nether-
lands.®”

§ 870. Bequest to worthy poor of a city.—All the rest and
residue of my estate, including that which may lapse for any
cause, I direct to be invested or loaned, upon the best terms
possible, so as to produce the largest income, and said income to
be distributed annually among the worthy poor of the city of
La Salle, in such manner as a court of chancery may direct.*

§ 871. Bequest for benefit of poor.—I will and bequeath
to B., in trust, the remainder of my estate, whatever it may be,
for the benefit of the poor, and to be given by her to such ob-
jects, as in her judgment are worthy of assistance, from time

86 Hesketh v. Murphy. 36 N. J. Eq. 88 Hunt v. Fowler, 121 Ill. 269, 12
7304, 3 Am. Frov.’7. NE 331, 17 N. E. 491, 6 Am. Prob.
87 Klumpert v. Vrieland, 142 Iowa 448.
+434, 121 N. W. 34, 14 Prob. Rep. Ann.
169,
637 FORMS FOR PARTICULAR CLAUSES § 872

to time, and at such times and to such persons as she thinks best
to help. This charity fund shall be kept where it will be safe
and at interest, and all to be used for charity purposes, until all
expended.*°

§ 872. Devise to church to be applied to foreign missions.
—TI do will and bequeath to the Methodist Episcopal Church,
South, to be applied to foreign missions, all of my property, real
and personal, after the payment of my just debts, for their use
and benefit exclusively.®° :

§ 873. Gift to home for aged women.—I give the divi-
dends and income of my shares of stock of the following named
banks—First National Bank, Second National Bank, Chapin Na-
tional Bank, and John Hancock National Bank,—to the amount
of ten thousand dollars, to the Springfield Home for Aged
Women, a corporation established by law, and located in said
Springfield; and I direct that it be kept as a permanent fund, to
be known as “the Lombard Fund,” the income of which only
shall be expended; and I direct that, in the expending of said
income, preference shall be given to the care and benefit of old
ladies designated and recommended by the pastor for the time
being of the Unitarian Church in said Springfield; and I further
direct that the said shares of bank stock shall not be sold unless
it becomes absolutely necessary. I also give to said Springfield
Home for Aged Women one thousand dollars as a memorial of
my deceased sister, E., to be paid to said corporation within one
year after my decease.**

§ 874. Bequest to endow bed in hospital—lI give to the
Springfield Hospital, in said Springfield, certificate of stock of
Connecticut and Passumsic River Railroad No. 58, dated May
13, 1887, for twenty shares, and also enough more from such
other part of my estate, not otherwise specifically devised and

89 Grant v. Saunders, 121 Iowa 80, S. W. 593, 9 Ky. L. 753, 6 Am. Prob.
95 N. W. 411, 100 Am. St. 310, 9 153.
Prob. Rep. Ann. 553. 91 Angell v. Springfield Home, 157
90 Kinney v. Kinney, 86 Ky. 610, 6 Mass. 241, 31 N. E. 1064, 8 Am. Prob.
321, :
§ 875 WILLS 638

bequeathed, as my executors shall think best to take it from,
to make up the sum of ten thousand dollars, to be known as “The
Lombard Fund,” to endow a bed, to be called and known as “The
Lombard Bed,” in the use and occupany of which my relatives
are to be preferred.”

§ 875. Bequest for charitable purposes.—First. I give
and bequeath unto the Bridgeport Protestant Orphan Asylum of
Bridgeport, Conn., the sum of one thousand dollars, to be used
for the general purposes of said asylum.

Second. I give and bequeath unto the Bridgeport Hospital
the sum of one-thousand dollars, to be used for the general pur-
poses of said hospital.

§ 876. Remainder to charity—I, Aaron Summers, of
Bridgeport, do will and bequeath the use of my whole estate,
both personal and real, after my just debts and funeral charges
are paid, to my wife, Anna Maria, while she remains my widow.
After her second marriage, if it should ever occur, or her decease,
I will the whole of my estate, both personal and real, to be dis-
posed of within a reasonable time after my decease and hers
(meaning my wife) by my executor, and deposited in some safe
banking institution or institutions in the town of Bridgeport, or
within the state of Connecticut, to be used by the acting select-
men of said Bridgeport, for the special benefit of the poor,
worthy, deserving orphans and widows of white, American,
Protestant Democrats residing in the town of Bridgeport until
all is expended. I also will that not one of my relatives shall
have a dollar from these funds; also, not one of my wife’s’ rela-
tives shall have a dollar therefrom, but these funds shall be used
for those entirely unrelated as mentioned in this will. No par-
tiality is to be shown to friends.* "

92 Angell v. Springfield Home, 157 Conn. 489, 3 Atl. 557, 55 Am. Rep.
Mass. 241, 31 N. E. 1064, 8 Am. Prob. 152, 5 Am. Prob. 298,

321. 94Beardsley v. Bridgeport, 53

°3 Beardsley v. Bridgeport, 52 Conn. 489, 3 Atl. 557, 55 Am. Rep.
152, 2 Am. Prob. 298.
639 FORMS FOR PARTICULAR CLAUSES § 877

§ 877. Bequest to town for school purposes.*°—I give, be-
queath and devise all of the rest and residue and remainder of
my estate, both real and personal, after the payment of all my-
just debts and burial expenses to the inhabitants of the aforesaid’
town of Parsonsfield, to have and to hold the same in trust for-
ever, and to be called the “Piper School Fund,” to and for the
uses and purposes hereinafter mentioned and declared, namely,
that the interest and net income thereof shall be annually ex-
pended in aid of the support of a free high school in said Par-
sonsfield, that is to say, a school which shall be open and free
to all residents of said Parsonsfield without charge for tuition,
not intended, however, to restrict the right of said inhabitants
to charge tuition for scholars admitted to said school, who are
not residents of said Parsonsfield; that no part of said money
shall ever be expended in the erection or repair of school build-
ings, but the entire use, inccme and interest, arising and accruing
from the estate hereby bequeathed, shall be forever expended for
instruction and payment of incidental expenses, necessary for
the support of said school.

The expenditures of said money shall be under the direction
and control of the superintending school committee of said Par-
sonsfield or such officers as may be by law provided in their
stead; this devise is upon the express and certain condition that
the inhabitants of said Parsonsfield shall accept and perform the
conditions named in the second article of this will.°*

§ 878. Trust for suppressing sale of intoxicating liquors.
—I will and bequeath to the Trustees of the Methodist Episcopal
Church, now organized in Rockport, Indiana, and to their suc-
cessors in office, one thousand dollars, to be put at interest and
the interest to be applied, annually to the payment of the salary
of the preacher in charge at the time. I will and bequeath to the
aforesaid trustees, one thousand dollars, to be put at interest, and
the interest, to be appropriated, annually, to the suppression of
manufacturing, selling or using of intoxicating liquors. Now,

95 See ante, § 188. 96 Piper v. Moulton, 72 Maine 155,
2 Am. Prob. 574,
§ 879 WILLS 640

should the said trustees, refuse or neglect for two successive
years to use the above named interest as directed, in either or
both cases, any one of my legal heirs shall have the right to
draw out both principal and interest, and divide it equally be-
tween my heirs. I will that the trustees, heretofore designated,
shall superintend the carrying out of this will, and the winding
up of my estate, by electing one of their body as executor; but if
none of their body be willing to serve, then for them to agree
on some good man, outside of their body; then after the said
trustees have selected an executor, it is my will that they, as a
body, shall continue to see that the will be fully and faithfully
carried out.*”

§ 879. Devise to charity or to bishop individually upon
failure.—All the rest, residue, and remainder of my estate,
real, personal and mixed, I give, devise and bequeath unto St.
Teresa’s Church, Broad and Catharine streets, and St. Joseph’s
House for Homeless Industrious Boys on Pine Street, share and
share alike; provided, however, in case of my death within thirty
days from the date hereof, I give, devise and bequeath all my
said residuary estate unto Most Reverend P. J. R., archbishop of
Philadelphia, absolutely.

§ 880. Charitable bequest in discretion of executor.—I
direct said W., my executor, to divide said remainder among such
charitable institutions in the city of St. Louis, Missouri, as he
shall deem worthy.

§ 881. Bequest to Salvation Army, valid on incorpora-
tion."—I give, devise, and bequeath one other equal share
or third part, to be first selected and set apart by my executors
or the survivor of them, to J. W. L. and J. C. Q., or the survivor
of them, in trust, to keep the same carefully invested, and to

97 Haines v. Allen, 78 Ind. 100, 41 89 Howe v. Wilson, 91 Mo. 45, 3 S.
Am. Rep. 555, 2 Am. Prob. 242. W. 390, 60 Am. Rep. 226, 7 Am. Prob.
98 Flood v. Ryan, 220 Pa. 450, 69 367.
Atl. 908, 22 L. R. A. (N. S.) 1262n, 1See ante, § 186.
13 Ann. Cas. 1189, 13 Prob. Rep.
Ann. 575.
641 FORMS FOR PARTICULAR CLAUSES § 882

receive the rents, profits and income thereof, and to pay and
apply the same, together with the principal sum, or third part,
to and for the use of the branch of the Salvation Army, so called,
located in the city of St. Paul; said principal and interest accruing
thereon to be permanently invested in the purchase of a lot and
the erection thereon of a place of worship where said Salvation
Army may hold its meetings; said share or third part and the
interest thereon never to be used or invested outside of said city,
but is given solely for the purpose heretofore mentioned. If
said branch of the Salvation Army in said city is or should be-
come legally organized so it may take and hold the title to prop-
erty, then I direct the said trustees, or the survivor of them, to
transfer said third part or share, and all the rents, income and
profit of the same, together with any other property which may
come to them under any of the provisions of this will, to said
organization as soon after the settlement of my estate as prac-
ticable.?

§ 882. Bequest to bishop for charity.—I hereby give and
bequeath to the Rt. Reverend O., bishop of Omaha, if he shall sur-
vive me, the following lands, situate in the county of Douglas,
in said state, that is to say (description of land follows). If the
said Bishop O. do not survive me, then my will is that the said
land shall go to his successor as bishop of Omaha. My wish
and direction is that the said Bishop O., if he shall survive me,
or his said successor, as bishop of Omaha, apply the said lands,
and the proceeds arising from the same and the sale thereof to
some charity, according to his judgment; but I prefer that the
same be applied to the establishment or maintenance of an or-
phanage.®

§ 883. Alternate charities—The balance of my real estate
consists of the plantation, containing about six hundred acres,
known as the Oakwood place, and upon which is situated the

2Lane v. Eaton, 69 Minn. 141, 71 Shelby, 60 Nebr. 796, 84 N. W. 273,
N. W. 1031, 38 L. R. A. 669, 65 Am. 83 Am. St. 553, 6 Prob. Rep. Ann.
St. 559, 2 Prob. Rep. Ann. 708. 234,

3St. James Orphan Asylum v.

41—THomp. WILLS.
§ 884 WILLS 642

family graveyard, I give and bequeath this land (with the excep-
tion of the graveyard, containing four acres) to J., M. and S.,
in trust to rent the same and apply the proceeds to such objects
of charity and benevolence as the Presbytery of the State of Ala-
bama of the Cumberland Presbyterian Church may indicate or
designate; and should this devise fail, then the said trustees shall
apply the proceeds to the maintenance and education of young
men preparing for the ministry in the Cumberland Presbyterian
Church, or in any other Protestant church, said young men to
be selected by the said trustees or any two of them.*

§ 884. Bequest to charities in discretion of executors.—I
do hereby direct my said executors to pay over, appropriate,
dispose of and distribute the residue of my estate or the pro-
ceeds arising from the sale thereof to and among such religious,
charitable, and benevolent purposes and objects or persons or
institutions as I shall specify in a writing to be prepared and
signed by me for that purpose; or in default of such written
direction left by me, then and in such case I do hereby give
and grant unto my said executors and the survivor of them
full and unlimited power and authority to pay over, appropriate,
dispose of, and distribute the said rest, residue and remainder
of my estate to and among such religious, charitable and benev-
olent purposes and objects or institutions as in their discretion
shall be best and proper, as I have full confidence in the judg
ment, ability, integrity and discretion of my said executors in
the premises; and I hereby release them from liability to ac-
count for the same.°

§ 885. Request not to exclude certain classes of books
from library.—I do not wish that any work should be ex-
cluded from the library on account of its difference from the
ordinary or conventional opinions on the subjects of science, gov-
ernment, theology, morals or medicine, provided it contains.
neither ribaldry nor indecency.

4Woodroof v. Hundley, 147 Ala. 5In re Dulle’s Estate, 218 Pa. 162,
287, 39 So. 907, 11 Prob. Rep. Ann. 67 Atl. 49, 12 L. R. A. (N. S.) 1177n,.
385. 13 Prob. Rep. Ann. 36.
643 FORMS FOR PARTICULAR CLAUSES § 886

Temperate, sincere and intelligent inquiry and discussion are
only to be dreaded by the advocates of error. The truth need
not fear them, nor do I wish the Ridgway Branch of the Phila-
delphia Library to be encumbered with the ephemeral biographies,
novels and works of fiction or amusement, newspapers or period-
icals, which form so large a part of the current literature of the
day. The great object of a public library is to bring within
the reach of the reader and student works which private collec-
tions do not and can not contain, and which in no other way
could be accessible to the public. Its excellence will depend, not
upon the number of its volumes, but upon their intrinsic value;
and I wish this principle to be carried out by the managers, who
I hope, will never be influenced by the too common ambition for
mere numerical superiority.°

§ 886. Charitable objects, subscription to.—I direct my
executors, if at the time of my death there are unpaid subscrip-
tions made by me to churches, schools, colleges, hospitals, or any
other objects of a religious, charitable or educational nature, to
pay the same, and in their discretion, to use funds from the resi-
due of my estate, not to exceed dollars in one year, for the
purpose of assisting such needy persons as I have been accus-
tomed to assist, or such students as I have been helping to obtain
an education.

 

§ 887. Bequest absolutely, with request to use for chari-
ties.—I give to the persons named as my trustees personally
as joint tenants and not as trustees the sum of , to be theirs
absolutely. I wish that they would dispose of the same in ac-
cordance with a letter addressed to them, found among my
papers, but they are under no requirement so to do.

 

§ 888. Gift to charitable use in foreign country—A muni-
cipal corporation as trustee.—One year after the death of my
wife the whole of my residuary estate shall be converted into

6 Manners v. Philadelphia Library Co., 93 Pa. St. 165, 39 Am. Rep. 741,
2 Am. Prob. 267,
§ 888 WILLS 644

cash, and together with all accrued interest, shall be invested
as follows:

Half of the money left by me after my wife’s death to be used
in erecting a building in the suburbs of the city of Malaga
(Spain), to be under the patronage and care of the city authori-
ties, and under the superintendence of one or more Sisters of
Charity, to be used as an orphan asylum and school for as many
little poor orphan children (males) from respectable families as
can possibly be taken. The Sisters in charge of said establishment
should be well educated and well versed in geography, mathe-
matics, grammar, history and penmanship, so as to be able to
teach the children to become learned and industrious. I have no
doubt the institution will be assisted and encouraged by the good
and wealthy citizens of Malaga, and will some day become a great
institution. The other half of my capital or residue to be placed
out on good security so as to yield a semi-annual income, and
shall be applied in paying the expenses incurred in keeping up
said boarding establishment. I also leave our pictures, two oil
paintings of my wife and myself, to the said institution.

A true copy of this will will be sent to the then acting Spanish
Minister of Spain, at Washington, D. C., by my executors, with
the request that he should see that an honest man be appointed
to superintend and fulfil my wish; a man who, without any re-
ward for his services, and only for the sake of doing good to
my native city, will take willingly the responsibility and trouble
necessary for such a task. The person so appointed will have
to give security, and also hand a semi-annual statement of the
condition of the institution to the ten acting civil authorities of
Malaga. As the children of the institution become of age, I
mean able enough to make a living for themselves, the friends
of the institution will be kind enough to procure for them situa-
tions in commercial houses, stores, and factories, where they
can earn an honest livelihood. This institution shall not, at any
time, incur or owe a debt exceeding ($5,000) five thousand
dollars.

My executors will demand security from the Spanish Minister,
or his representatives, that my will shall be carried out according
645 FORMS FOR PARTICULAR CLAUSES § 889

to my wish, and they shall keep in trust, if they think proper, the
whole of my residuary estate for three years after my death, or,
until they are convinced of the fulfilment of my wish by the
Spanish Minister and authorities of Malaga.

If within three years after my death this bequest fail of execu-
tion from any cause, then the same shall lapse and be void, and
the whole of my residuary estate, together with all accrued in-
terest, shall be divided amongst the children of F. de P., Sr.,
jJ. J.P. A. P., J. P. and D. P., of New Orleans, La., and chil-
dren of J. M. P. and J. M. V., of Malaga, Spain.”

§ 889. Bequest to foreign charities—Sixth: Being a
native of Tjosvold, Karmoen, Kingdom of Norway, where fish-
ing and sailing are the chief industries, and being acquainted
with the social and industrial conditions of the poorer classes of
Norway, my sympathies go out to industrious and deserving
‘servant girls, and to widows and orphans of deceased fishermen
and sailors. Desiring to relieve such servant girls and widows
and orphans I give and bequeath to Akre Church Congregation
(Akre Kirkesogn) six thousand dollars, to be invested and re-
invested forever in first mortgages on farm lands at the highest
obtainable rate of interest; the principal shall remain inviolate,
and the interest shall be paid annually on the first day of Decem-
ber and be distributed on the following Christmas to worthy and
needy servant girls and the widows and orphans of deceased
sailors and fishermen who are not a public charge. I appoint
‘pastor (Sognepresten), the president of the county commission-
ers (Forman Sabets Ordforer) and the county treasurer (Kom-
munens Kaserer) of the Akre Kirksogn and their successors in
office as trustees to carry out the provisions of this bequest, this
‘fund shall be known as the “Nils Olai and Gunild Nilson Tjos-
vald Julefund.”

Seventh: I also give and bequeath to Bruflads Church Con-
gregation (Kirksogn) Sondre Etnadalen, Valders, Kingdom of
‘'N orway, the sum of five thousand dollars, to be invested and re-
invested forever in first mortgages on farm lands at the highest

7Peynado v. Peynado, 82 Ky. 5, 5 Ky. L. 753, 5 Am. Prob. 483.
646

§ 889 WILLS

obtainable rate of interest; the principal shall remain inviolate,
and the interest shall be paid annually on the first day of De-
cember, and be distributed on the following Christmas to worthy
and needy servant girls and the widows and orphans of deceased
peasants or under-tenants who strive and use their best efforts
to maintain themselves and families so as not to depend on char-
ity, but who are from force of circumstances unable to do so. I
appoint the church pastor (Sognepresten), the president of the
county commissioners (Forman Sabets Ordforer) and the county
treasurer (Kommunens Kaserer) of the Bruflads Kirksogn and
their successors in office forever, as trustees to carry out the
provisions of this bequest. This fund shall be known as the “Nils
Olai and Gunild Nilson Tjosvold Julefund.”

Eighth: I give and bequeath two-thirds of all the residue of
my estate to Akre Kirksogn to become a part of the fund men-
tioned in paragraph six, and the remaining third to Bruflads
Kirksogn to become a part of the fund mentioned in paragraph
seven of this my last will and testament.®

ARTICLE 13. CoNnDITIONS AND RESTRICTIONS®
SECTION SECTION
890. Conditional devise. 901. Condition prohibiting contest of
891. Life estate on condition. will,
892. Devise on condition precedent. 902. Condition as to disputing will.
893. Devise on condition of living on 903. Legacy conditional on reforma-
land, with vested remainder. tion.
894. Conditional bequest to son on 904. Bequest on condition of recon-
executor’s approval. ciliation.
895. Bequest on condition subsequent. 905. Bequest to son on condition he
896. Condition against marrying cer- attend a certain church.
tain persons. 906. Bequest on condition beneficiary
897. Condition as to marriage. is educated a Roman Catholic.
898. Gift to polygamous wife with 907. Devise conditional on religious
condition against polygamous connection.
remarriage. 908. Condition to pay annuity, life
899. Bequest on condition of hus- estate inuring to second wife.
band’s death. 909. Conditional devise for support.
900. Provision against contest. :

8In re Nilson’s Estate, 81 Nebr.
809, 116 N. W. 971, 13 Prob. Rep.
Ann. 648

® See ante, ch. 15.
647 FORMS FOR PARTICULAR CLAUSES § 890

§ 890. Conditional devise.—All the rest, residue, and re-
mainder of my property, both real, personal and mixed, I give,
devise and bequeath to F., to him and his heirs forever. Pro-
vided, he shall take care of me and look after me while I live.”®

§ 891. Life estate on condition—And it is my desire that
if O. shall pay the interest annually on what is due from him,
to wit, on five hundred forty-one dollars, that he be not disturbed
in his possession of the place [owned by me] where he now
resides.

§ 892.—Devise on condition precedent."—lIf the said H.
W.N. shall well and truly pay, or cause to be paid, all the several
notes, bonds and obligations for which I, the undesigned, am
bound as security, then I give and bequeath to said H. W. N.
(Here follows description of land.)

Also, if said H. W. N. shall pay to R. E. M. $200, to A. J. P.
$300, and to C. L. J. $150 (being the sums of money bequeathed
to said R. E. M., A. J. P. and C. L. J. in this will) out of his
own private funds, within one year from the date of my decease,
and shall settle my estate, without any other charge to said
estate, then I give and bequeath to the said H. W. N. (here
follows description of certain other land). If the said H. W. N.
shall not fully comply with the foregoing conditions, he shall
have no lien on the two lots of land last mentioned.™

§ 893, Devise on condition of living on land, with vested
remainder.—My beloved wife, H., is to have and to hold the
two above described pieces of land during her lifetime; at her
decease, I will, devise and bequeath the same to my son S. during
his natural lifetime; provided, he will live on and occupy the
same; at his death, or his refusal to live on or occupy the same,

10 Brennan v. Brennan, 185 Mass. 12See ante, § 280.
560, 71 N. E. 80, 102 Am. St. 363,9 43 Nevius v. Gourley, 95 I!l. 206, 1
Prob. Rep. Ann. 323, Am, Prob. 53.

11Garland v. Garland, 73 Maine
97, 2 Am. Prob. 348.
§ 894 WILLS 648

then and in that case, as well as at the said S.’s death, I devise
‘and bequeath the same to the said S.’s lawful heirs.**

§ 894. Conditional bequest to son on executor’s approval.
—All the rest and residue of my estate whatsoever and where-
soever (after the above-mentioned bequests and devises are ex-
cepted), I give, devise and dispose of as follows: One equal
third part thereof to my son J. B. P., to be paid to him by my
executor.at such times and in such sums as he, my said executor,
shall deem most for his good; and if my said son shall not make
a proper use of his money, then I direct my said executor to pay

,him no more than will be necessary to board and clothe him in
decent and respectable manner. And if the said J. B. P. shall
happen to die before receiving the whole of his money, and with-
out leaving lawful issue, then I direct that the balance shall go
into and make part of the residue of my estate; if he shall leave
‘lawful issue, the said balance to be paid to them in equal shares.”®

§ 895. Bequest on condition subsequent.**—I bequeath to
my brother the sum of one thousand dollars for that he,
the said , shall look after and take care of our beloved
brother R., while he shall live, and bury him at his death.”

 

 

§ 896. Condition against marrying certain persons.**—lf
either one of my children above named in my will should marry
in P.’s family, I only give him or her the sum of three dollars to
be his or her part, and to be all that he or she is to receive under
the will; and the foregoing clause of this will that leaves them
‘anything, to be revoked, and all other portions of this will that
provide for the same child.”

§ 897. Condition as to marriage.—I hereby declare and
provide that if any of my children shall marry without my con-

14 Conger v. Lowe, 124 Ind. 368, 24 17 Hammond v. Hammond, 55 Md.
N. E. 889,9 L. R. A. 165, 7 Am. Prob. 575, 2 Am. Prob. 119.
139, 18 See ante, § 288.

15 Pedrick v. Pedrick, 50 N. J. Eq. 19 Phillips v. Ferguson, 85 Va. 509,
479, 26 Atl. 267, 8 Am. Prob. 425. 8 S. E. 241, 1 L. R. A. 837, 17 Am.

16 See ante, § 280. St. 78, 7 Am. Prob. 460.
649 FORMS FOR PARTICULAR CLAUSES § 898

sent during my lifetime, or thereafter without the consent of a
majority of the then executors and trustees under this will, then
and in that event the share allotted to the child so marrying in
and by said will and codicil, shall be reduced one-half, and the
principal of the other half of the said share shall be paid, as-
signed, transferred or set over to such persons as under the laws
of the state of New York would take the same if I had died
intestate.” I desire that my daughter C. shall marry only with
the consent of her trustee, V. If she marries with his consent, I
direct him to pay her before marriage from the capital of the
estate which is held in trust for her the sum of fifteen thousand
dollars, with which she can provide a marriage outfit, and furnish
her home. This payment is to be taken as a reduction of the
principal of the trust estate. I desire her to. consult with her
trustee as to the spending of this money, but she is not to be
bound to follow his advice. If my said daughter marries without
the consent of the said trustee, then she is to receive no ameter
from the principal of the trust estate.**

§ 898. Gift to polygamous wife with condition against
polygamous remarriage.—I will and bequeath to P. all of
that parcel of land situated as follows: (describing it). The
conditions of this bequest are that the said P. shall be the sole
owner in her own right of the property described above to be
held by her for her support and the support of my children by
her; but in the event of the said P. marrying again this bequest
shall become null and void. and the right of ownership shall re-
vert to her children by me and be divided in equal shares amongst
them, when the youngest child of hers by me shall have attained
its majority—nevertheless if the said P. does marry again, it is
my will that she shall retain the house in which she lives and
ten acres of land on a part of which the house stands, with all
the appurtenances thereto to have and own for the term of her
natural life, but at her death it shall go to her children by me.”

20 From the will of Jay Gould. 22TIn re Poppleton’s Estate, 34
21 See ante, § 288. Utah 285, 97 Pac, 138, 131 Am. St.
: 842, 14 Prob. Rep. Ann. 281,
§ 899 WILLS 650

§ 899. Bequest on condition of husband’s death.—I be-
queath to my daughter A. E. T. all of the income of my estate
and such further funds, out of my estate, as her needs and wants
may demand, so long as she remains the wife of I. A. T. The
amount of the sums to be paid to my said daughter A. E. T. are
‘left to the judgment and discretion of my executor. If my
‘daughter A. E. T. should be left a widow, or for any cause should
cease to be the wife of the said I. A. T. then all of my estate
‘shall be given to my daughter absolutely and made subject to her
control.”

§ 900. Provision against contest.**—lf any of my children
\or grandchildren, or any of the cestuis que trust under this will,
shall contest the validity of this my will, or attempt to vacate
‘the same, or alter or change any of the provisions thereof, he
or she, or they shall be thereby deprived of any beneficial in-
terest under this will and of any share of my estate, and the
share, or shares, of such person or persons, shall be divided
equally between my said sons, J. and H., discharged from any

trust.”
|
§ 901. Condition prohibiting contest of will—It is my

will that if any one of my children shall resist the probate of my
‘will, or petition to break or set it aside, such child or children
‘shall not have any part of my estate whatever, and the portion
intended for such child shall be distributed among those of my
children mentioned in item No. 8, who shall not oppose my will,
in the same way that the balance of my estate is therein directed
to be distributed; the child or children opposing my will being
excluded from any participation therein.”*

§ 902. Condition as to disputing will—(a) If any legatee
or devisee under this will shall contest its probate, or in any way
aid in or be concerned in contesting it, or shall after its admis-

22 Thayer v. Spear, 58 Vt. 327, 2 442, 58 Atl. 853, 68 L. R. A. 447, 9
Atl. 161, 4 Am. Prob. 451. Prob. Rep. Ann. 425.

24 See ante, § 290. 26 Donegan v. Wade, 70 Ala. 501, 3

25In re Friend’s Estate, 209 Pa. Am. Prob. 206.
651 FORMS FOR PARTICULAR CLAUSES § G03

sion to probate interfere in any way either by private act or by
court proceeding, with my executors, or with the exercise of
their discretion in settling my estate, then the bequest or devise
to said legatee or devisee shall become void, and is hereby re-
voked, and shall become a part of the residue of my estate.

(b) If any legatee or devisee under this will or any codicil
hereto, except the residuary legatee and devisee, objects to or
opposes its probate, or takes action in any court to have it set
aside and annulled, or on request of my executors, declines to
sign any application to the proper tribunal for the allowance of
this will or any codicil hereto, then I revoke and declare void
the legacy, share, interest or devise given to such legatee or dev-
isee, and it shall go to the residuary legatee. If any such legatee
shall commence proceedings in any court, this shall be sufficient
to cause forfeiture of the legacy or devise to him, and later
abandonment of such proceedings, shall not prevent forfeiture.
If the residuary legatee and devisee shall object to or oppose
my will, or take any such other action in regard to it as is set
forth above with reference to the other legatees and devisees,
then I revoke and declare void the legacy to him, and such legacy
shall go to B. D.

§ 903. Legacy conditional on reformation.”"—To A., the
son of my daughter, J., deceased, I give and bequeath the sum
of five hundred dollars ($500.00) to be paid to him at the ex-
piration of two years from the date of my demise; provided, that
he shall be deemed a reformed man, in the judgment of the ex-
ecutors of this will.”

§ 904. Bequest on condition of reconciliation—‘“If my
sister E. after the death of her husband, G., becomes reconciled
to my and her brother T., and his and her sisters within one
year after the death of said G., my executors are directed to
pay over to her one equal sixth part of my estate, but if she is
not so reconciled within that period, then that sixth part is to

27 See ante, § 292. 81 Am. St. 222, 5 Prob. Rep. Ann.
28 Markham v. Hufford, 123 Mich. 493.
“505, 82 N. W. 222, 48 L. R. A. 580.
§ 905 WILLS 652

pass to my other sisters, brother T., and L. to be held and go in
all respects as the portions respectively given them in this instru-
ment.”

This condition was held valid, not void for uncertainty, nor
as tying up property for longer than the statutory period.”

'§905. Bequest to son on condition he attend a certain
church.*°—I hereby give and bequeath to my beloved son
P. P. the sum of fifteen hundred dollars to be paid to him by said
executrix in fifteen annual payments. This bequest is made con-
ditional that my son attend the regular meetings of worship of
the Emmanuel Church near the village of Cashton, Wisconsin,
when not sick in bed, or prevented by accident or other unavoid-
able occurrence.

If my son does not try in good faith to comply with my wishes
in carrying out the above condition upon which this legacy is
based, in that case I give and bequeath said fifteen hundred dol-
lars to the Norwegian Lutheran Home and Foreign Missionary
Association.

§ 906. Bequest on condition beneficiary is educated a
Roman Catholic.*—I bequeath one-twentieth part of the re-
maining collections and proceeds arising from the debts collected
and the sales of all my personal property and real estate to my
friends, J. and T., to them and their heirs, in trust, to invest the
same in property yielding a certain interest, which said income
or interest shall be appropriated to the maintenance and educa-
tion of my grandchild, E., daughter of my deceased son, the
late Captain A. M., until her day of marriage or when she at-
tains the age of twenty-one years, provided she is educated in
some Roman Catholic female seminary or school, and is reared
as a Roman Catholic in the communion and faith of her deceased
father, the said A. M.; and on her day of marriage or attaining
the age of twenty-one years, the bequest—the whole amount—

29 Page v. Frazer, 14 Bush (Ky.) 612, 107 N. W. 484,5 L. R. A. (N.S.)
205, 1 Am. Prob. 588. 804, 11 Prob. Rep. Ann, 584,

80 See ante, § 293. 82 See ante, § 293.

31In re Paulson’s Will, 127 Wis.
653 FORMS FOR PARTICULAR CLAUSES § 907

shall be paid over to her and her heirs, forever freed from all
trusts whatever. But if the said E. is not educated at a Catholic
seminary or school and reared as a Roman Catholic in the faith of
the Roman Catholic Church, then it is my intention, will and di-
rection that the bequest shall accumulate, the interest or income as
it arises shall be added to the principal until the said E.’s death
or marriage, or attaining the age of twenty-one years, when on
the happening of either of these events, the whole amount—
principal and interest—shall be divided and paid over to the
trustees of my daughter E. W., the wife of P. W., and M. B.,
the wife of I. B.**

§ 907. Devise conditional on religious connection.**—In
the second place, in trust, as to all the rest and residue of my
estate, to appropriate and apply the net income thereof, as fol-
lows:

If, within twelve months after my decease, my brother, F.,
shall withdraw from the priesthood in the Roman Catholic Church
(should he be at the time of my death a priest in said church),
and from any and every order or society connected with said
church, of which he may be a member, and until he shall become
a priest or deacon in said church, or shall connect himself with
some order or society of said church, or until the income of said
property or some part thereof, shall be sought to be subjected to
the payment of his debts or liabilities by legal process, I direct
that the net income of said rest and residue of my estate, be paid
to the said F. in every year, in such installments as the said
trustee, or his successor or successors, may deem best, for and
during the term of the natural life of the said F.

But if within twelve months after the time of my death, my
brother shall not have withdrawn from the priesthood aforesaid
(should he be at.the time of my death a priest in said church),
and from any and every order or society of which he may be a
member, connected with said church, or if he shall at any time
hereafter become a priest or deacon in said church, or become

33 Magee v. O’Neill, 19 S. Car. 170, 34 See ante, § 293.
45 Am. Rep. 765, 3 Am. Prob. 591. ‘
§ 908 WILLS . 654

a member of any order or society of said church, or if said in-
come, or any part thereof, shall be sought to be subjected by legal
process to the payment of his debts or liabilities, and he shall be
without wife or children, or if he shall die without leaving a child
or children living at the time of his death, who shall attain the
age of twenty-one years, then (subject to the life-estate or estaté
for widowhood aforesaid in one-third thereof), I give, devise and.
bequeath the said rest and residue of my estate to the Mayor
and City Council of Baltimore, in trust for the McDonogh Edu-
cational Fund and Institute, to be applied to establishing a chair
therein, to be called the “Zemus Barnum Chair,” to promulgate
such a course of instruction in said institute as will aid in the
practical application of the mechanical arts—the said estate and
property to be held under the same control and direction as the
estate and property now held by said fund and institute, and to
be so appropriated and applied as to give boys in that institution
such useful and practical mechanical education as will enable
them to gain a livelihood by skilful manual labor—the surplus
income, after the payment of the professor to be applied to the
erection of necessary buildings, and furnishing needed tools and
the like for the above mentioned purposes.”

§ 908. Condition to pay annuity, life estate inuring to
second wife.**—I give and bequeath to my son S. the store-
house and lot on Main street in Russellville, now occupied by
him as a drug store, the same to be used and enjoyed by him dur-
ing his natural life free from all debts which he may now owe or
hereafter contract; and at the death of himself and wife said
property is to pass to his legal heirs. This bequest to my son S.
is made upon the express condition that he pay to my son R.
the sum of five hundred dollars annually for three years, with
legal interest thereon, after one year from the date of the pro-
bate of this will.*”

85 Barnum vy. Baltimore, 62 Md. 87 Perry v. Perry, 110 Ky. 16, 60 S.
275, 50 Am. Rep. 219, 4 Am. Prob. W. 855, 22 Ky. L. 1573, 6 Prob. Rep.
291. Ann, 433,

36 See ante, § 295.
655 FORMS FOR PARTICULAR CLAUSES § 909

§ 909. Conditional devise for support.—Third. I hereby
give and devise to my mother, E. D., all the rest, residue and re-—
mainder of my property, of whatever nature, which I shall die
seised of, for and during her natural life; and in case the use
of said property shall be insufficient for her support, then and
in such case-I hereby authorize her to dispose of such of said
property and such amounts thereof as shall be sufficient for her
support; and whatever shall remain at her death I hereby give,
devise, bequeath unto my said cousin, M., and to her and her
heirs forever.*® :

ArticLe 14. Provisions As To Lapsz, ABATEMENT AND

Priority or Lecacies”

SECTION SECTION
910. Lapsed legacies. 916. Ademption of specific legacies,
911. Provision as to lapse of lega- etc.

cies. 917. Gift as satisfaction of legacy.

912. General provision against lapse. 918. Abatement of legacies.

913. Provisions for lapsed legacy to 919. Abatement of particular lega-
go to issue er to brothers and cies.
sisters, but excluding issue of 920. Certain legacies to abate in case
deceased brothers and sisters, of deficiency.

914. Devise with provision against 921. Priority of legacies.
lapse. 922. Priority of one legacy.

915. Legacy with provision against 923. Priority of several legacies.
lapsing in case of legatee leav- 924. Direction as to time at which
ing issue. legacies are to be payable.

§ 910. Lapsed legacies.*°—(a) If any person to whom a
legacy is given under this will shall die before me, the legacy
shall fall into and become a part of my residuary estate.

(b) If any person to whom a legacy is given under this will
shall die before I do, the legacy to him shall not lapse, but shall
be paid to his administrator or executor.

§ 911. Provision as to lapse of legacies.“*W—All the rest,
residue and remainder of my estate, both real and personal, and
38 Morford v. Deiffenbacker, 54 39 See ante, ch. 16.

Mich. 593, 20 N. W. 600, 5 Am, Prob. 40 See ante, § 305. S
135, 41 See ante, §§ 310, 311, 312, 313.
§ 912 WILLS 656

wherever situated, that I shall be seised and possessed of or be
in any manner entitled to at the time of my decease, including
all legacies herein given which shall have lapsed by reason of
the death of the legatees to whom such: legacies were given, I
give, devise and bequeath to my sister E. if she be living at the
time of my decease, and in case my said sister E. shall not be
living at the time of my decease, I give, devise and bequeath all.
said rest, residue and remainder of my said estate unto my friend,
C., of said W., absolutely, to him, his heirs and assigns forever.*”

§912. General provision against lapse.—lIf any legatee
be now dead, or die before me, I give the legacy intended for
him or her to his or her executors or administrators, to be ap-
plied as if the same had formed part of the personal estate of
such legatee at his or her death.

§ 913. Provision for lapsed legacy to go to issue or to
brothers and sisters, but excluding issue of deceased brothers
and sisters.—In the event of the death of either of my said
children, and as they may severally decease, I give, devise and be-
queath his or her equal share in said trust fund, and any accumu-
lated interest thereon, to his or her lawful issue, upon their ar-
riving to the full age of twenty-one years, and in the event of
the death of any of my said children without lawful issue living,
or if living, and not arriving to the full age of twenty-one years,
I give, devise and bequeath his or her interest in said trust func
to the surviving children and their heirs and assigns forever.
share and share alike.**

§914. Devise with provision against lapse.**—I devise my
estate and lands in , in the county of and state of ;
to my nephew, , absolutely, and if my said nephew shall die
in my lifetime, this devise to him shall not lapse and said lands
and estate shall-devolve in all respects as if his death had hap-
pened immediately after mine.

 

 

 

 

42 Tyler v. Tallman, 29 R. I. 57, 68 320, 71 N. E. 541, 9 Prob. Rep. Ann.
Atl. 948, 13 Prob. Rep. Ann. 343. 320.
43 Lawrence v. Phillips, 186 Mass. 44 See ante, § 309.
657 FORMS FOR PARTICULAR CLAUSES § 915

$915. Legacy with provision against lapsing in case of
legatee leaving issue.—I bequeath the sum of dollars
to of ; and if he shall die in my lifetime leaving issue
surviving me, such legacy shall not lapse, but shall vest in his
representatives as part of his personal estate.”

 

 

 

§ 916. Ademption of specific legacies, etc.“°—(a) If at
the time of my decease there shall not be in my possession any
one or more of the bonds heretofore bequeathed to A., then it
is my direction that he be paid from the general funds of my
estate the amount of their market value at the time of my de-
cease.

(b) If the stocks and bonds bequeathed specifically herein are
not in my possession at the time of my decease, then I direct
my executors to purchase from the general funds of-my estate
stocks and bonds to make up the deficiency in any such legacy,
and to purchase those of a similar kind and equal value if they
can not purchase stocks and bonds of the same kind.

§917. Gift as satisfaction of legacy—Any gift made by
me after the execution of this will to any legatee named therein
or in any codicil hereto, shall, I declare, be in lieu of said legacy
if equal or in excess thereof, and proportionately in lieu of the
legacy, if less than its amount.*”

§ 918. Abatement of legacies.“—(a) If my estate shall
prove insufficient to pay all the legacies and bequests given by
this will, then it is my direction that the bequests to my wife
shall first be paid in full, and that the other legacies shall abate
proportionately.

(b) If from losses or depreciation my estate should prove in-
sufficient to pay all legacies and devises in full, then I direct that
the pecuniary and specific legacies shall abate proportionately,
but there shall be no resort to or abatement in any specific de-
vise in order to make up any deficiency in any specific or general
bequest of personal property.

45 See ante, § 311. 47 See ante, §§ 433, 434.
46 See ante, § 434. 48 See ante, § 434.

42—TuHomp. WILLS.
§ 919 WILLS 658

§ 919. Abatement of particular legacies.—I direct that, in
case of a deficiency of assets for the full payment of all the
pecuniary legacies hereinbefore bequeathed, the two legacies
of dollars and dollars hereinbefore bequeathed to the
said legatees, respectively, shall abate ratably and in proportion
before any other legacy.

 

 

§ 920. Certain legacies to abate in case of deficiency.--
direct that if the moneys to arise from my estate applicable to
the payment of debts and legacies shall not be sufficient to pay
in full such debts and the legacies hereby bequeathed, then the
legacies hereby given to and shall abate proportion-
ately in favor of the other legacies hereby given.”

 

 

§921. Priority of legacies.—I direct that the several pe-
cuniary legacies hereinbefore given shall have priority in the
order in which the same are herein named.

§ 922. Priority of one legacy.—I direct that the legacy
of dollars, hereinbefore bequeathed to the said legatee, shall
be paid in full in priority to any other pecuniary legacy be-
queathed by this my will, or any codicil thereto.

 

§ 923. Priority of several legacies.—I direct that, in case
of a deficiency of assets for the full payment of all the pecuniary
legacies hereinbefore bequeathed, the said legacies shall be paid
in full respectively in the order of priority in which they are
hereinbefore given, so far as the assets applicable for the payment
thereof will extend.

§ 924. Direction as to time at which legacies are to be
payable.*°—-(a) I direct that the legacies hereinbefore be-
queathed to the said and shall be paid within cal-
endar months after my decease.

(b) I direct that all the pecuniary legacies bequeathed by this
my will, or any codicil hereto (unless otherwise expressly di-
rected) shall be payable within calendar months after my

 

 

 

 

49 See ante, § 395. 50 See ante, § 394.
659

FORMS FOR PARTICULAR CLAUSES

§ 925

death, and, if not then paid, shall bear interest as from that time

until payment at the rate of

ARTICLE 15.

SECTION

925. Bequest of annuity.

926. Annuity to wife to be paid in
preference to all other be-
quests.

927. Annuity to husband and wife
and the survivor of them.

928. Annuity charged on realty.

929. Proviso that annuitant may elect
to take gross sum.

§ 925. Bequest of annuity—I bequeath to
dollars, payable half-yearly from

ing his life, an annuity of

 

 

per cent. per annum.

ANNUITIES™

SECTION

930. Annuity to cease on alienation.

931. Power to purchase annuities.

93la. Word annuity used but gift
held to be merely of income.

932. Annuity during term of part-.
nership.

933. Advice to purchase. annuity.

, dur-

and after my death (or, to be payable quarterly, and the first

payment thereof to be made at the expiration of

after my death).

months

 

§ 926. Annuity to wife to be paid in preference to all

other bequests.**—I also bequeath to my said wife during her
life an annuity of dollars, to commence from my decease,
and to be paid half-yearly, and this bequest shall be in preference
to any other bequest made by this my will or any codicil hereto.

 

§ 927. Annuity to husband and wife and the survivor of
them.—I bequeath to , and , his wife, jointly,
and to the survivor of them, an annuity of dollars, during
their joint lives, and the life of the survivor of them, payable
semi-annually, the first payment to be made within months
after my death (or as soon as may be after my death).

 

 

§ 928. Annuity charged on realty.”"°—(a) I give, devise
and bequeath to my son L., Jr., my four houses situate on the
west side of Centervilleavenue * * * Subject to the pay-
ment of my wife, E., of the sum of one hundred sixty dollars

51 See ante, ch. 18. 53 See ante, § 323.

52 See ante, §§ 347, 349,
§ 929 | WILLS ‘660
per year, payable quarterly, beginning from the date of my death,
which payments or annuities are hereby charged upon said devi-
see and upon said property, to have and to hold unto him, his
heirs and assigns, forever, subject to said annuity.™*

(b) I bequeath to my daughter , for her life, an annuity
of dollars, to be charged upon my lands and hereditaments
hereinafter devised to my son , and to be payable every three
months, to be paid on the first days of January, April, July and
October of each year, the first payment being an apportioned
part thereof from my decease, to pe made on such quarter day
as shall happen next after my decease.

 

 

 

§ 929. Proviso that annuitant may elect to take gross
sum.—Provided always, and I declare, that if my said niece
shall elect to take the sum of dollars in lieu of the said
annuity of dollars hereinbefore provided for her, and shall
declare such her election by some writing under her hand within
months next after my death, then such annuity of
dollars shall not become payable; and in lieu thereof, I bequeath
to my said niece the sum of dollars, to be paid to her within
months after my death.

 

 

 

 

 

 

 

§ 930. Annuity to cease on alienation.—I hereby declare,
that if said annuitant shall at the time of my death be or after-
ward become bankrupt or insolvent, or shall assign or charge,
or attempt to assign or charge, his annuity, or if any other
event shall happen in my lifetime, or after my death, whereby
if such annuity belonged to him absolutely he would be deprived
of the personal enjoyment of it, then such annuity shall cease
as if he were dead (or shall cease to be payable to him, and shall
thenceforth during the remainder of his life be payable to my
trustees in trust that they shall thereafter, as they shall in their
absolute discretion think fit, pay all or any part of such annuity,
or apply the same to the maintenance and personal support or
benefit of such annuitant, his wife or children; and so much

54 Horstmann v. Flege, 172 N. Y. 381, 65 N. E. 202, 8 Prob. Rep. Ann.
267.
661 FORMS FOR PARTICULAR CLAUSES § 931

of the said annuity as shall not be so applied shall sink into and
become a part of the income of my residuary estate).

§ 931. Power to purchase annuities.—I authorize my
trustees at any time or times, if and when they shall consider it
convenient for the administration, winding-up, or distribution
of my estate, or for any other reason, to purchase annuities in
the name of the several annuitants, or in the names of my trus-
tees, for the purpose of answering or satisfying the respective
annuities hereinbefore bequeathed, or any of them; and I declare
that any annuity so purchased in the names of my trustees shall
be paid or applied by them to the person or persons, for the
purposes, and in the manner to and for which the annuity is
herein directed to be applied.

§ 93la. Word annuity used, but gift held to be merely of
income.—I give and bequeath unto my beloved sister, H., a
life annuity of nine hundred dollars and direct my executors or
my trustee to pay the same to her from the income of my estate,
in equal quarterly payments, as long as she shall live.*

§ 932. Annuity during term of partnership.—And whereas
I am engaged in a partnership business carried on under the
‘firm name of ’ & Co., pursuant to a deed or articles of
partnership dated the day of , by virtue of which the
said partnership is to continue for the term of years from
the day of , and my share or interest in the capital
of the said business will be liable to be retained therein (not-
withstanding my death) until the expiration of the said term:
Now I bequeath to my said wife, during the residue of the
partnership term which shall remain unexpired at my death, if
she, my said wife, shall so long live, an annuity of dollars a
year, to be paid by equal half-yearly payments, the first whereof
shall be made at the expiration of calendar months from
my death.

 

 

 

 

 

 

 

 

 

55 Homer v. Landis, 92 Md. 320, 52 Atl. 494, 7 Prob. Rep. Ann. 738,
§ 933 WILLS 662

§ 933. Advice to purchase annuity.—It is my advice to
my daughter that she turn the entire amount given to her by
this will into cash, and purchase therewith an annuity from a
sound and stable insurance company. I mean by this for her
to make a contract with some such company by which she will
part forever with the funds paid by her to such company in

consideration of the company’s paying her during life a certain
sum per annum.

ARTICLE 16. Trusts

SECTION SECTION
934. General bequest of personal es- 945, Trust in income to several for
tate in trust to be converted. life, with trust of capital for
935. Real estate devised to trustees survivor.
for sale. 946. Trust for daughters in proceeds
936. Securities belonging to testator of real estate.
to become trust funds with 947, Life interest in trust estate de-
power to change. terminable on bankruptcy, at-
937. Life interest in trust estate to tempt to alienate.
widow charged with mainte- 948. Trust with discretion to apply
nance of children. income for benefit of life ten-
938. Trust for wife during her wid- ant and his family.
owhood and children after her 949. Reason for creating trust for
death, with request as to sons.
maintenance of children dur- 950. Trust for son for life, occu-
ing her life. pancy, use, rents, and profits
939. Trust providing for income of of real estate, under control
moiety to wife for life, other of trustees.
moiety and principal to chil- 951. Trust for testator’s children to
dren. be applied as widow shall ap-
940. Trust for wife to terminate at point.
age of seventy-five, or on mar- 952, Trust for children and issue of
riage. deceased children.

941. Residue in trust for children, to 953. Trust for children unequally.
be conveyed after twenty-one 954. Trust for granddaughter.

years. 955. Gift to trustees for investment
942. Trust for child during minor- and pay annuity to son for life
ity. or to children, upon his bank-
943. In trust for grandson with con- ruptcy or attempted aliena-
tingent remainder, tion.
944. Trust to pay income of fund to 956. Trusts for wife and children of
three and the survivor. son after his death.

 

56 See ante, ch. 18.
663

SECTION

957. Trust for children and issue of
deceased children at twenty-
one or marriage.

Bequest in trust for children of
sister at twenty-one or mar-
riage.

Trust for children at twenty-
five, with substitution of
grandchildren of children
dead at testator’s death.

Trust for children, without de-
vise in terms to trustee to ter-
minate as children reach age
of twenty-five, in discretion of
trustees.

Trust in personal property for
life for afflicted daughter cor-
pus after her death to her
heirs.

Devise and bequest to children
in dry trust for their issue.
Trust for issue of grandchil-

dren.

Trust for brother for life, after-
ward to nephews and nieces in
shares for their lives, and
afterward for their children.

Residuary trust to terminate at
death of sons and their wives.

. Trust for three nieces for life,
then for their children and is-
sue at twenty-five, etc. with
cross-limitations.

Legacy in trust for housekeeper,
becoming part of her estate on
her death.

Trust to executors for lives of
wife and son or longest liver,
with vested remainder.

Trust of an annuity for a spend-
thrift and his wife and chil-
dren.

Spendthrift trust.

Trust for improvident son.

Trust for son for life, to cease
on his alienation of his inter-
est.

Discretionary trust of income
after alienation.

958.

959,

960.

961.

962.
963.

964.

965.

967,

968.

969.

‘970.
‘971.
972.

973.

FORMS FOR PARTICULAR CLAUSES

§ 934.

SECTION

974. Income to be applied after alien-
ation as if son were dead.

975. Trust for son for life, deter-
minable on bankruptcy.

976. General proviso that life interest
shall cease on bankruptcy or
alienation.

977. Trust, income placed beyond
reach of creditors, trust to
cease on obtaining of judg-
ment:

978. Bequest to trustee to appropri-
ate as he deems best.

979. Precatory words which do not
create a trust.

980. Absolute gift, not a trust.

981. Bequest to daughter to confirm
invalid devise.

982. General power of appointment
of cestui que trust.

983. General form of ultimate trust.

984. Ultimate trust for person who
would take under statutes of
descent.

985. Trust for testator’s brothers and
sisters, and their issue by right
of representation.

986. Trust for preachers, no trustee
appointed.

987. Short will leaving property to
trustees and referring to deed
of trust.

988. Discretion in terminating trust.
989. Power of appointment after ter-
mination of trust estate.

990. Devise to daughter, with power
of appointment.

991. Request to daughter to keep
open a certain house during a
certain period of the year.

992. Bequest for the “comfortable
support” of relatives.

993. Appointments under trusts.

994. Refusal to execute power of ap-
pointment.

995. Trust deed, or declaration of
trust.
§ 934 WILLS 664

§ 934. General bequest of personal estate in trust to be
converted.—I bequeath ail the money, securities for money,
goods, chattels, credits, and personal estate, of or to which I
shall at my death be possessed or entitled, or of which I shall
at my death have power to dispose by will, unto the said and
, trustees, their executors and administrators, upon trust
that the said trustees or the survivor of them, or the executors
or administrators of such survivor, shall, as soon as conveniently
may be after my death, call in, sell, and convert into money such
parts thereof as shall not consist of money.*”

 

 

§ 935. Real estate devised to trustees for sale.—I devise
all the lands, tenements, hereditaments, and real estate, of every
tenure, of or to which I shall at.my death be seised or entitled
or of which I shall at my death have power to dispose by will
(except what I otherwise dispose of by this will or any codicil
hereto), unto and , trustees, their heirs, executors and
administrators; upon trust that the said trustees or the survivor
of them, or the heirs, executors, or administrators, respectively,
of such survivor, shall sell the same, either together or in parcels,
and either by public auction or private contract, and shall for
the purpose aforesaid execute all such assurances and convey-
ances as they or he shall think fit.**

 

 

§ 936. Securities belonging to testator to become trust
funds, with power to change.—It is my will that all stocks,
bonds and other securities belonging to me shall form part of
the trusts created by my will at such value as may be placed
upon the same by my executors and trustees, but they may sell
and dispose of the same, or any of them, whenever in their dis-
cretion they think proper. And I expressly direct that my ex-
ecutors and trustees are not to be responsible or liable for or
charged with any loss or depreciation that may arise from such
securities, or any other securities forming part of any of the
trusts created hereby. And I empower them to make investments

57 See ante, § 344. 58 See ante, § 337.
665 FORMS FOR PARTICULAR CLAUSES § 937

and reinvestments of trust moneys in such other securities be-
sides those recognized by law as they may think proper.

§ 937. Life interest in trust estate to widow charged with
maintenance of children.—I declare that the income of the
said trust premises shall be paid to my said wife during her life,
without power of anticipation, subject to the obligation of main-
taining and educating thereout such of my children as shall for
the time being be minors, and shall not have been married (and
of making proper annual or other allowances to such of my
children as have attained the age of twenty-one years, and shall
in the opinion of said trustees need the same), but without lia-
bility to account so long as she shall maintain and educate them
respectively to the satisfaction of my trustees.”

§ 938. Trust for wife during her widowhood, and chil-
dren after her death, with request as to maintenance of chil-
dren during her life.—I give to my trustees (describing prop-
erty) upon trust, that my trustees or trustee shall pay to my said
wife, or permit her to receive, the income of the said trust fund
during her life, if she shall so long continue my widow; and I
request my said wife, out of such income, to maintain and edu-
cate such of my sons as shall, for the time being, be under the
age of twenty-one years, and such of my daughters as shall, for
the time being, be under that age and unmarried. But I declare
that such request shall not impose any legal obligation on my said
wife, and that she shall not be liable to account for or in respect
of any income so paid to or received by her; and from and after
her death, or future marriage, shall stand possessed of the capital
of the said trust fund: In trust for all and every my children
or child who, being sons or a son, shall attain the age of twenty-
one years, or, being daughters or a daughter, shall attain that age
or marry under that age, and, if more than one, in equal shares

as tenants in common.

§ 939. Trust providing for income of moiety to wife for
life, other moiety and principal to children.—I give to my

59 See ante, § 323.
§ 940 WILLS 666

trustees (describing gift), upon trust, as to one moiety of the
said trust fund, to pay the income thereof unto my said wife, or
permit her to receive the same during her widowhood; and as to
the other moiety thereof, to pay the income to and among my
children. in equal shares, until the principal thereof is paid or
transferred in accordance with the following provision; that is
to say, as to the principal of the whole of said trust fund, subject
to the payment of the income of one moiety thereof as aforesaid,
in trust to pay or transfer or divide the same respectively to or
among all and every my children and child who shall survive
me and, being sons or a son, shall attain the age of twenty-five
years, or, being daughters or a daughter, shall attain the age of
twenty-one years, or marry under that age with the consent of
her or their guardians for the time being (if any), for the abso-
lute benefit of such children respectively, in equal shares and
proportions.

§ 940. Trust for wife to terminate at age of seventy-five,
or on marriage.°—The aforesaid trust, created by this will,
shall continue until my said wife shall reach the age of seventy-
five (75) years, unless she shall sooner marry, in which case it
shall terminate at her marriage, and also at her decease. If she
unmarried reaches the age of seventy-five (75) years, I direct said
trustees to reserve a sum sufficient to pay all then unpaid lega-
cies, given by this will, and also the sum of fifty thousand
($50,000) dollars to provide for the annuities thereafter to be
paid, and then taking into account the advancements herein men-
tioned to each of my children, and the money legacies, other than
annuities, herein given, to divide my estate so soon as may be
into equal shares, and to distribute it among those then surviv-
ing of my children, viz.,C. P. H., M. V.N., W. A. H., H. L. H.,
N.S. B., M. G. H., and S. H. M.—the latter being a grandchild
—and if any of them shall not then be living, but shall have left
living issue, then such issue shall take the share which the parent
would take if living. A like division shall be made if this trust
terminates otherwise than by my said wife reaching the age of

60 See ante, §§ 357, 358.
667 FORMS FOR PARTICULAR CLAUSES § 941

seventy-five, except that no sum shall be reserved to pay her
future annuity.*

§ 941. Residue in trust for children, to be conveyed after
twenty-one years.—Sixth. From and immediately after the
death of my beloved wife, I give, devise and bequeath all the rest,
residue and remainder of my estate, both real and personal, goods
and chattels, of what nature or kind soever, to my children (nam-
ing them), M. A. K., wife of J. B. K., J. H. K., A. J. S., wife of
A.S., K. E. K., G.H. K., H. S. K., A. H. K., and A. T. K., to be
divided between them equally, share and share alike, and to have
and to hold the same to them, and their heirs and assigns, forever ;
but none of the real estate which I shall own and die possessed
of shall be in any manner conveyed or sold until the expiration
of twenty-one (21) years from the date of this instrument; and
I wish, and hereby direct my executors, as hereinafter nominated
and appointed, that after all the taxes, costs, repairs and expenses’
have been paid out of the income, rents and profits of said real
estate, all such net income, rents and profits to be divided between
my said children equally, share and share alike, at the end of .
every one year during such time, and till the expiration of said
twenty-one years, as stated above.

§ 942. Trust for child during minority.“—I give, devise
and bequeath to my son E. the sum of ten thousand dollars, said
sum to be held by my executrix, hereinafter named, in trust,
until my said son arrives at the age of twenty-one, and then
given to him. Said sum, during the infancy of my son, to be
loaned out by executrix on real estate in Jasper county, Missouri,
and the interest thereon to be used in keeping, maintaining and
educating my son.**

§ 943. In trust for grandson with contingent remainder.—
One other of the twentieth parts or shares of my property I

61 Harris v. Harris’ Estate, 82 Vt. 233, 89 N. W. 134, 7 Prob. Rep. Ann.
199, 72 Atl. 912, 14 Prob. Rep. 526.
Ann. 86. 63 See ante, § 357.
62Tn re Kopmeier’s Will, 113 Wis. 64 Webb v. Hayden, 166 Mo. 39, 65
S. W. 760,'7 Prob. Rep. Ann. 183.
§ 943 WILLS 668

give, devise and bequeath to my son C., my son-in-law A., my
friend S., and my nephew E., and to the survivors or survivor
of them, and to their successors, forever, in special trust and
confidence, however, and subject to all conditions, uses, limita-
tions and trusts hereinafter declared and contained in relation to
the same; that is to say, to hold the same in trust for the use and
benefit of my grandson O., a son of my deceased son C., Jr.,
during the term of his natural life, and the net income thereof
to be paid over to or for the benefit of my said grandson O. dur-
ing his life from time to time as it may accrue, and from and
immediately after the decease of my said grandson O. in trust
that the said one-twentieth part or share of the said rest, residue
and remainder of my estate as aforesaid, or the property, stock,
or funds of all kinds in which the same may be invested at the
time of my said grandson O.’s decease, shall go to and become
the property of the child or children of my,said grandson O.
may leave living at the time of his death, his, her, or their heirs,
executors, administrators and assigns, absolutely, forever, if more
than one, as tenants in common equally; the issue of any deceased
child of my said grandson O., if any such issue there should be
living, to take and have the part, share, or proportion to which
the parent of such issue would, if living, be entitled, and in
the event of the decease of any of the children of my said
grandson O. under twenty-one years of age and without issue
living at the time of his, her, or their respective deaths, the part
or share of him, her, or them so dying shall go to the survivors
or survivor of them, and the heirs, executors, administrators, and
assigns of such survivors and survivor, and to the issue then living
of any deceased child or children, and the heirs, executors, ad-
ministrators, and assigns of such issue, the said issue to take
the share or shares to which such deceased child or children
would, if living, be entitled. But, in case my said grandson O.
shall depart this life without leaving a child or children, or de-
scendant or descendants of the same, living at the time of his
death, or in case he should leave a child or children, descendant
or descendants, thereof, living at the time of his decease, and
stich child or children, and descendant or descendants, shall
669 FORMS FOR PARTICULAR CLAUSES § 944

all subsequently depart this life under twenty-one years of
age and without issue living at the time of his, her or their
respective deaths, then in further trust that the said one-
twentieth part or share of the said rest, residue, and remain-
der of my estate as aforesaid, or the property, stock or funds
of all kinds in which the same may be invested, shall continue
to be held by my said trustees and their successors to and for
the use and benefit of my three grandchildren, C., C. and E.,
the other children of my deceased son C., Jr., their heirs, ex-
ecutors, administrators and assigns, forever, as tenants in com-
mon, share and share alike, and in further trust that, in the
event of the decease of any one of my three grandchildren, C.,
_C. and E., last above named, under twenty-one years of age and
without issue living at the time of his, her or their respective
deaths, the part or share of him, her, or them so dying shall go
to and become the property of the survivors or survivor of them
absolutely, and the heirs, executors, administrators and assigns
of such survivors and survivor, forever; and if it shall so hap-
pen that all of my said three grandchildren last named, C., C.,
and E., shall depart this life under twenty-one years of age and
without issue living at the time of his, her or their respective
deaths, then the said one-twentieth part or share of the rest,
residue, and remainder of my estate as aforesaid, or the prop-
erty, stock or funds of all kinds in which the. same may be in-
vested, shall go to and become the estate and property of all my
other children then living, and all the descendants or descendant
then living of such of them as may be then dead, their heirs,
executors and assigns, if but one to take all, and if more than one
to be equally divided between them, per stirpes and not per
capita.

§ 944. Trust to pay income of fund to three and the sur-
vivor.°—I give to trustees , upon trust to pay the income
of the trust fund among and between ; and , and
the survivors of them, in equal shares, during their joint lives,
and unto the survivor of them during his life.

65 Lee v. O’Donnell, 95 Md. 538, 52 66 See ante, § 349.
Atl, 979, 8 Prob. Rep. Ann. 43.

 

 

 

 
§ 945 WILLS 670

§ 945. Trust in income to-several for life, with trust of
capital for survivor.—I declare that my trustees shall pay the
income of the said trust premises to ‘ and , and the
survivors of them, during their respective lives, in equal shares
as tenants in-:common, and subject thereto, shall stand possessed
of the said trust premises, in trust for the last survivor of them,
to be paid to him absolutely.

 

 

 

§ 946. Trust for daughters in proceeds of real estate.—It
is my will that all my property, real, personal and mixed, be con-
verted into money and divided equally among my children, share
and share alike, with this restriction, however, that the share or
shares falling to my daughters under this will be placed in the
hands of my son, B., as trustee for each of them, and that he
shall hold the same for and during the natural life of each one,
respectively, and pay each of them the yearly interest or profit
arising from said fund during the life of each, and to their in-
dividual heirs at law after the death of each of my said daugh-
ters, respectively.”

§ 947. Life intérest in trust estate determinable on bank-
ruptcy, attempt to alienate, etc.°—I give to my trustees, etc.,
upon trust that if, at the time of this present trust taking effect
in possession, the said would not, by reason of any ante-
cedent alienation or charge, or the happening of any other event,
whether before or after my decease, be wholly or partially pre-
vented from personally enjoying the life interest hereby given to
him in the said trust premises, if the same were given to him
absolutely, then my trustees shall pay the income of the said
trust premises unto the said during his life, or until he shall
become bankrupt, or shall alienate or charge, or attempt to
alienate or charge, the said income, or some part thereof, or
until some other event shall happen whereby, if the said income
or any part thereof belonged to him absolutely, he would be
wholly or partially deprived of the personal enjoyment thereof.

 

 

67 Hooker v. Montague, 123 N. Car. 68 See ante, § 296.
154, 31 S. E. 705, 4 Prob. Rep. Ann
250,
671 FORMS FOR PARTICULAR CLAUSES § 948

§ 948. Trust with discretion to apply income for benefit
of life tenant and his family.—(a) And the aforesaid trus-
tees shall pay the income of the said trust premises to the said
during his life, unless and until some event shall have hap-
pened or shall happen whereby, if the said income belonged ab-
solutely to him, he would be deprived of the personal enjoyment
thereof or of any part thereof; and afterward, during the re-
mainder of his life, shall hold the said income upon the trusts
and for the purposes upon and for which the same would for the
time be held if the said were dead.

(b) I further declare that in the event of the failure or deter-
mination during the life of the said of the trust lastly here-
inbefore declared in his favor, my trustees shall, during the re-
mainder of his life, pay or apply all or any part of the said
income unto or for the personal support or benefit cf the said
, and his wife and issue (if any), and the persons or person
for the time being interested in the said trust premises, under
the ulterior trusts hereinafter declared, in such shares and man-
ner as my trustees shall from time to time, in their absolute dis-
cretion, think proper, and, subject to such discretionary trust or
power, shall hold the said income upon the trusts upon which
the same would for the time being be held if the said were
then dead.

§ 949. Reason for creating trust for sons—Inasmuch as
neither of my sons has developed such a sense of responsibility
as in my judgment is requisite for the wise use of large prop-
erties and considerable sums of money, I am painfully compelled,
as I have explicitely stated to them, to limit my testan entary
provisions for their benefit to trusts producing only such income
as I deem reasonable for their support.”

 

 

 

 

 

§ 950. Trust for son for life, occupancy, use, rents and
profits of real estate, under control of trustees.—It is my will
in order to provide for the comfort of my son A. and to secure
to him a home during his life, I give, grant, and bequeath to

69 From will ef George M. Pull-
man,
§ 951 WILLS 672

said A. during his life, the occupancy, use, rents and profits
of the west half of my farm situated and being in the County
of Marion, and State of Oregon, being a part of Section
No. 35, in Township 8 South of Range 4 West of the Willamette
Meridian. In order to protect my said son in the full enjoyment
for life of the said gift and bequest, I constitute and appoint my
sons, H. and C., trustees of said bequest with full authority to
conduct and control said bequest in such manner as to my said
trustees may be proper to secure to said A. the full and free
enjoyment and benefits of said bequest.

It is my will that at the termination of the life estate herein-
before given to my son A. by his death, that said tract of land
covered by said life estate be sold and that proceeds thereof be
divided equally among my children.”

$951. Trust for testator’s children to be applied as widow
shall appoint.—In trust for all or such one or more ex-
clusively of the others or other of my children, at such time and
times, and in such manner in all respects, as my said wife shall,
by any deed or deeds, revocable or irrevocable, or by will or codi-
cil, appoint; and in default of and subject to such appointment,
etc.

§ 952. Trust for children and issue of deceased children.—
I give, devise and bequeath to my aforesaid trustees, all the rest
and residue of my estate, wherever situated, in trust for all such
of my children living at my death, and of the children then living
of any child of mine having died in my lifetime, as being a son
attain the age of twenty-one years, or being a daughter attain
that age or marry under that age, if more than one, as tenants in
common, in equal shares per stirpes; so that my children who
shall be objects of this trust shall take in equal shares, and the
children being objects of this trust of any child of mine having
died in my lifetime, shall take equally between them the share
which the parent would have taken had he or she survived me,
and attained a vested interest.

70 Mattison v. Mattison, 53 Ore. Ann. Cas. 218, 14 Prob. Rep. Ann.
254, 100 Pac. 4, 133 Am. St. 829, 18 204.
673 FORMS FOR PARTICULAR CLAUSES § 953

§ 953. Trust for children unequally.—I give, etc., to my
trustees, etc., upon trust, to pay the sum of dollars, or to
transfer securities of equivalent value, to my son , in case
and when he attains the age of twenty-one years; and to pay the
sum of dollars, or securities of equivalent value, to my
daughter , in case and when she attains that age or marries;
and as to all the residue of the said trust premises, in trust for
all my children, including the said and , who being a
son or sons attain the age of twenty-one years, or being a daugh-
ter or daughters attain that age or marry; if more than one, in
equal shares as tenants in common.

 

 

 

 

 

 

§ 954. Trust for granddaughter.—I direct the trustees of
my estate to pay over the remainder of the rents and income to
my granddaughter, H., quarter-yearly during her natural life,
into her hand, or upon her sole and separate receipts or orders
therefor, in writing, signed by her, at or immediately before the
payment thereof, and not by way of anticipation; or if said
trustees shall see fit, upon her request in writing signed by her,
to permit her to collect and receive to her own use the rents and
income of said trust estates; or to apply the said remainder of
said rents and income, or so much thereof as said trustees shall
see fit, to her individual maintenance and support and to the
‘education, maintenance and support of any children of hers.”

§ 955. Gift to trustees for investment and pay annuity to
‘son for life or to children upon his bankruptcy or attempted
alienation.—I give to my trustees the sum of dollars
upon trust that they shall invest the same in their names in any
mode proper for a trust, with power from time to time to vary
such investments, and my trustees shall stand possessed of such
‘investments and the income thereof upon trust to pay out of such
income an annuity of dollars to my son during his
life for his separate use without power of anticipation; and I
direct that in case at any time the said. income shall be insufficient
to pay the said annuity my trustees may resort to the principal

 

 

 

71 Nickerson v. Van Horn, 181 Mass. 562, 64 N. E. 204, 8 Prob. Rep.
Ann. 70,

43—Tuomp. WILLS.
§ 956 WILLS 674

of said trust fund for the payment thereof. And I direct my said
trustees to stand possessed of said annuity of dollars upon
trust to pay or apply the same to or for the benefit of my said
son during his life, or until he shall alienate or charge the same
or become bankrupt, or do or suffer any act or thing whereby
the same or any part thereof would, but for the present provision,
become vested in or payable to any other person or persons ;.and
after the happening of any event hereinbefore mentioned upon
trust to apply the said annuity during the residue of the life of
my said son, either for his benefit or for the benefit of his wife
or child or children (if any) for the time being, or any one or
more of them exclusively of the others or other of them, in such
manner in all respects as my trustees may think fit, and in case
there be no such wife, child or children in existence, then for the
benefit of my said son, or the person or persons for the time
being entitled to the income of my residuary estate, as my trustees.
may in their sole and uncontrolled discretion think best.

 

§ 956. Trusts for wife and children of son after his death.
—From and after the death of the said son, my trustees or
trustee shall hold the trust fund and the future income of the
same, upon trust to pay the income of the trust fund unto the
present or any future wife of the said son who may happen to.
survive him, during the life of such wife, without power of an-
ticipation; and after her death, upon trust to transfer the cap-
ital of the said trust fund unto or among such child or children
of the said son, whether born before or after the termination
of his said life interest, as shall attain the age of twenty-one
years or die under that age leaving issue, for his, her or their
absolute use and benefit, and, if more than one, in equal shares.

§957. Trust for children and issue of deceased children
at twenty-one or marriage.—I give, etc., to my trustees, etc.,.
in trust for all such of my children living at my death or born
afterward, and of the children then living or afterward born of
any child of mine having died in my lifetime, as being male attain
the age of twenty-one years, or being female attain that age or
marry under that age; if more than one, as tenants in common,
675 FORMS FOR PARTICULAR CLAUSES § 958

in equal shares per stirpes, so that my children who shall be ob-
jects of this trust shall take in equal shares; and the children be-
ing objects of this trust of any child of mine having died in my
lifetime shall take equally between them the share which the
parent would have taken had he or she survived me.

$958. Bequest in trust for children of sister at twenty-one
or marriage——I bequeath the sum of dollars to said
trustees in trust for all and every such children or child of my
sister , living at my death or born afterward, and such chil-
dren or child of any children or child of my said sister who shall
be then dead, as shall attain the age of twenty-one years or
marry, and, if more than one, in equal shares as between brothers
and sisters; but so that the children collectively or child of any
deceased child shall take such share only as his, her, or their
parent would have taken if living.

 

 

§ 959, Trust for children at twenty-five, with substitution
of grandchildren of children dead at testator’s death.—I de-
clare that the said funds shall be held upon trust to pay, transfer
or divide the trust fund unto, between, or among such child or
children of mine as shall survive me and attain the age of twenty-
five years, and the:child or children living at or after my death
of any child or children of mine who shall be dead at my death,
or shall die under the age of twenty-five years, and, if more than
one, in equal shares as between brothers and sisters; but so that
the child or the children collectively of any child of mine dead at
my death, or dying under the age of twenty-five years, shall take
only such share as his, her or their parent would have taken if
living.

§ 960. Trust for children, without devise in terms to trus-
tee to terminate as children reach age of twenty-five, in dis-
cretion of trustees.—Of my real estate and business interests
I bequeath to my children all equally share and share alike the
property bounded by the 7th., J.,—the alley, etc.,—my interest in
the home property on H., 13th and 14th, and the part of the
business and property now carried on on K. Street, between 3rd
§ 961 WILLS 676

and 4th, my interest in the Buffalo Brewery and lands in Arizona
and the Omaha. To my husband, J., Jr., I name one-tenth of all
such of my estate not mentioned as personal property, together
with small personal bank interests and together with L. and B.,
I name him trustees for my whole estate, to be so protected by
them that my children shall receive at the age of twenty-five one-
half of all that is due and at thirty, the remaining half, and that
these trustees shall receive a small commission each in considera-
tion of their services. I also assign to said trustees the added
duty of keeping my children in such circumstances as will per-
mit them to have every comfort of dress, etc., and all the needed
education which shall fit them for a career in any position of
life. In the event of my husband’s death, I name my brother-
in-law, J., to act as trustee with the surviving ones, knowing
him to be honorable, competent and justly fitted for such re-
sponsibilities as are herein expected. Furthermore, I wish to state
that if the trustees see fit to make over to my children because
of good character and industrious propensities the whole rather
than one-half of my estate as they reach the age of twenty-five,
it shall be in their power to do so.”

§ 961. Trust in personal property for life -for afflicted
daughter, corpus after her death to her heirs.—Item Seventh.
I give, devise, bequeath, assign, transfer and set over unto my
friend R. of Duck Creek Hundred aforesaid, and to his executors,
administrators and assigns, twenty shares of the capital stock of
the Bank of Smyrna, standing in my riame on the books of said
bank, and all the dividends now due or which may become due
thereon in my lifetime; also a note which I hold as hereinbefore
stated against my said son J. for the sum of two hundred dol-
lars, with all the interest due thereon; also one bedstead, and
bed well furnished with all necessary clothing, the bureau which
is in the parlor chamber, the washstand and bowl known as my
daughter A. J.’s, and the toilet table and dressing table known
as hers, and also a sufficient portion of the residue of my personal
estate (the bequests to my son A. and to my said wife being first

72 In re Reith’s Estate, 144 Cal. 314, 77 Pac. 942, 10 Prob. Rep. Ann. 206.
677, FORMS FOR PARTICULAR CLAUSES § 961

delivered to them) to make up together with the said bank stock
at the par value thereof, and the dividends now due and to become
due thereon during my lifetime, and the said note due to‘me from
my son J., with the interest thereon at the time hereinbefore ap-
pointed for the payment thereof and the amount of the interest
paid by me on the debt of my son J., to the Smyrna Bank as
aforesaid, and the said above named articles of household furni-
ture, and the said yearly sum of twenty-five dollars, and the said
portion of the said residue of my personal property to be held
by him, the said R. and his executors, administrators and as-
-signs, nevertheless upon trust as to the specific articles of house-
hold furniture to permit and suffer my afflicted daughter A. J.,
who is deaf and dumb, to use the same as her property, and as to
the dividends on the said bank stock which may fall due and
become payable after my decease, to himself receive and apply
the same to the maintenance and support of my said daughter
and as to the dividends on the said bank stock, which may be
unpaid at the time of my decease, and as to the said note due
from my son J., and the interest thereon, and the amount of
interest paid by me on the death of my son J. to the Bank of
Smyrna, as aforesaid, and the said yearly sum of twenty-five
dollars, so paid as aforesaid by my son A. to the said trustee,
and the said portion of my said personal estate, mentioned above
in this item, to collect and receive the same and invest the same
when received as soon as conveniently may be in some good
and safe and profitable investment and apply the dividends or in-
terest arising from such investment or investments together with
the dividends to become due, as aforesaid, on the said bank stock,
after my death, as the same may be received to the maintenance
and support of my said daughter, A. J., during her life, and
from and after her decease it is my will and I direct that all the
said property, moneys, stock, goods, chattels, rights, credits and
effects shall be held by the said R. free and discharged from
the aforesaid trust, to and for the use of the heirs and assigns
of the said A. J. forever.”

73 Jones v. Rees, 6 Penn.(Del.) 504, 69 Atl. 785, 16 L. R. A. (N. S.) 734,
13 Prob. Rep. Ann. 204.
§ 962 WILLS 678

§ 962. Devise and bequest to children in dry trust for
their issue.“—I give and bequeath (devise) to my children,
namely, E., I., A., M. and W., in trust for the issue of their
bodies, the tract of land on which I live, with all its members
and appurtenances, and also all the rest and residue of my estate,
of whatever character it may consist, whether personal or real
and wherever it may be, to have and to hold in trust, for the issue
of their bodies, to be divided among them per stirpes and not
per capita. But, in the event of the death of any of my said
children without issue, then that child’s portion shall be divided
among my surviving children, to share and share alike, in trust
for the issue of their bodies.”

§ 963. Trust for issue of grandchildren.—Provided al-
ways, that if any grandchild of mine, entitled to a share of the
trust fund under the foregoing limitation, and who shall be
living at my death, or shall be of the age of four years or upward
at the time of the death of the survivor of my children, should
die under the age of twenty-five years leaving issue surviving him
or her; or in case any grandchild of mine, entitled to a share of
the trust fund under the foregoing trusts, and who shall be
born after my death and shall be under the age of four years at
the time of the death of the survivor of my children, should die
under the age of twenty-one years leaving issue surviving him
or her, then, and in every case, the share or shares hereinbefore
limited to such grandchild shall be held in trust for his or her
child or children living at the death of such grandchild, and the
child or children then living of any such child or children then
dead, and, if more than one, in equal shares per stirpes.

§ 964. Trust for brothers for life, afterward to nephews
and nieces in shares for their lives, and afterward for their
children.—In trust as to one part thereof for my brother
during his life; and after his death, in trust for such child or
children of my said brother as shall attain the age of twenty-one
years or leave issue, or, being a daughter or daughters, attain that

 

74 See ante, § 343. 7 Mims v. Macklin, 53 S. Car. 6,
30 S. E. 585, 4 Prob. Rep. Ann. 89.
679 FORMS FOR PARTICULAR CLAUSES § 965

age or marry; and such child or children of any child or children
of my said brother dying before me as, being a male or males,
shall attain the age of twenty-one years or leave issue, or, being
a female or females, attain that age or marry, in equal shares as
between or among brothers and sisters, but so that the child or
children collectively of any deceased child of my said brother
shall take only the share which such deceased child would have
taken if living; and if there should be no such child or grandchild
then upon the trusts herein declared concerning the other shares
of the said trust moneys and premises; and if all such trusts
should fail of effect, then in trust for my said brother absolutely.

§ 965. Residuary trust to terminate at death of sons and
their wives—8. As to all the rest and residue of my
estate, real, personal and mixed, not hereinbefore specially de-
vised or bequeathed, I give, devise and bequeath the same to my
said executors .and trustees, to be held by them and their suc-
cessors for and upon the following purposes, uses and trusts,
viz.: That they will receive and collect the rents, profits and
dividends and income of my said residuary estate, with power
and authority to sell the same, or any part thereof, if they, or a
majority of them, deem it best so to do, conveying such portion
thereof as may be realty in fee simple, and to execute and deliver
all and any deeds or other instruments of writing that may be nec-
essary for that purpose, and to reinvest the proceeds of any such
sale or sales, to be held by them upon the same uses and trusts, in
such property or securities as they may deem safe and for the
advantage of my estate; and I direct that my said executors and
‘trustees shall not be held responsible for any losses that may
arise to my estate out of investments made by them in good faith;
and I further direct that my said executors and trustees and their
successors shall use and apply the income yielded by my said’
residuary estate as follows, viz.: They shall semi-annually divide
said yearly income into three equal parts or shares, one of which
shall be paid by them into the hands of each of my said sons, S.,
A., R. and J., to be used for the support, maintenance and educa-
tion of themselves, their wives and children, and for no other
§ 966 WILLS 680

purpose; and in case of the death of any of my said sons during
the continuance and existence of this trust in regard to said
residuary estate the share payable to him semi-annually for the
purposes aforesaid shall be paid one-third thereof to his widow
and two-thirds thereof to his children; but, if he shall have left
no widow, then the whole shall be paid to his children, and
isstie of deceased children, if such there be; but, if he have left
no children or issue of children, then it shall be paid to the chil-
dren of my other sons then living, and the issue of such as may
be deceased, in equal shares, in the manner hereinbefore pro.
vided, the issue of deceased children in all cases taking together
the same share as the deceased child would have taken if alive.
(9) I further direct that this residuary trust shall cease and ter.
minate when all my said sons and their present wives, M., A. and
C., shall have died, and I direct that my then acting trustees shall
then, viz., after the death of all of my said sons and their said
wives, divide and distribute the said residuary trust estate among
the children of my said sons then living, and the issue of such
of them as may be then deceased, equally, in the manner herein-
before directed,—that is to say, the issue of a deceased child
taking the same share as the parent would have taken if alive at
that time,—and to execute all such deeds of conveyance or other
instruments of writing as may be necessary for the purpose of
making said division and distribution.”

§ 966. Trust for three nieces for life, then for their chil-
dren and issue at twenty-one, etc., with cross-limitations.—
Upon trust to pay one-third of the income of the trust fund to
each of my three nieces during her life, but without power of
anticipation; and, after her death, to transfer one-third of the
capital thereof to such her child or children living at my death,
and such child or children then living of any her child or children
then dead as shall attain the age of twenty-one years or marry
(if more than one, in equal shares), and his, her, or their ex-
ecutors, administrators, and assigns, but so that the child or chil-

76In re Graham’s Estate, 198 Pa, 216, 47 Atl. 1108, 6 Prob. Rep. Ann,
370.
681 FORMS FOR PARTICULAR CLAUSES § 967

dren, collectively of any deceased child shall take only the share
which his, her or their parent would have taken if living; and
if there be no such issue, then to be possessed of such third part
of the last mentioned trust premises and the income therefrom,
upon the trusts herein declared concerning the other two-third
parts thereof and the income therefrom; and, if there be no such
child of any of my said nieces, then to transfer the whole of the
last mentioned trust premises in such manner as the survivor
of my said nieces shall by will, or, being sole, by deed appoint;
and, subject thereto, in such manner as if the same were part of
her personal estate, and she had died without leaving a husband.

§ 967. Legacy in trust for housekeeper, becoming part
of her estate on her death.”—To M., my housekeeper, I be-
queath five hundred dollars to be in trust of my executor, and
put in savings bank, the income to be paid her yearly, and the
executor can draw this money and buy a cheap place for her to
occupy during her life if he thinks it would be for her good.”

§ 968. Trust to executors for lives of wife and son or
longest liver, with vested remainder.—Fourth. All my mills,
factories, water power rights of pondage and everything ap-
pertaining thereto, situate at Kensico, in the town of North
Castle, in the said county, or elsewhere in that town which I
may own at my decease, I give and devise to my executors here-
inafter named, with power to take possession of, occupy, rent out
and keep in repair and receive the rents and profits-thereof until
the same shall be sold and conveyed by my executors as herein-
after directed, and I do direct my said executors as soon as they
can obtain a fair price therefor, to sell and convey the same in
fee simple absolute at public or private sale in their discretion in
one or more parcels as they may judge most beneficial to my
estate, and out of the moneys arising from the sale thereof,
to pay and discharge all liens and incumbrances thereon and all
other liens and incumbrances on all or any real estate owned by

77 See ante, § 352. 76 N. E. 286, 11 Prob. Rep. Ann,
78 Hayward v. Rowe, 190 Mass. 1, 237.
§ 968 WILLS 682

me at my decease, together with all just debts owing by me at,
my decease; the residue of said sales I direct my executors to
invest upon interest and dispose of as hereinafter directed as to
the residue of my estate or the proceeds thereof.

Fifth. My. dwelling house and about seven acres of land
in the village of White Plains with all the chattels and movable
property thereon, and all other lands, tenements or real estate
owned by me at my decease, except so much thereof as is in this,
my will, otherwise disposed of, I give and devise to my executors
hereinafter named, with power to take possession of, rent out,
keep in repair, receive the rents and profits thereof, until the same
shall be sold and conveyed by my executors as hereinafter di-
rected. I do hereby direct my said executors, as soon as they can
obtain a fair price for the same, to sell and convey the same at
public or private sale in their discretion, and the moneys arising
from the sale thereof I order my executors to invest upon interest
and dispose of as hereinafter directed as to the residue of my
estate or the proceeds thereof.

Sixth. My house and lot in the city of New York, known as
No. 15 Wall Street, I give and devise to my said executors with
everything appertaining thereto, with power to take possession
of, occupy, rent out and keep in repair and receive the rents,
issues and profits thereof as if they were owners thereof, during
the lives of my wife, S., and my son, J., but upon the express
trusts and condition that during the said lives or that of the long-
est liver of them my said executors, as often as received, pay
and distribute in equal parts, the net rents of said house and lot
to my said wife, S., my daughter, M., and my son, J., or the
lawful issue or descendants of my said son or my said daughter,
if either should die before my said wife, such descendant receiv-
ing the share of their parent, and at the decease of my said
wife and son, J., to deliver up to my said two children or their
descendants the said house and lot which is then to belong to them
in fee, but inasmuch as by fire, accident or change in the city
of New York, it may be expedient and necessary or greatly to
the interest-of my estate during the lives of my said son and
wife or longest liver of them to sell and convey said house and
683 FORMS FOR PARTICULAR CLAUSES § 969

lot No. 15 Wall Street, in fee, in that event, I authorize my said
executors to apply to the Supreme Court and upon proof to said
court of the propriety and necessity of said sale to its satisfaction,
I authorize said court to direct a sale thereof by my said ex-
ecutors in fee, and the moneys arising from the sale thereof to
be invested upon interest by my said executors until the death
of my said wife and son or the longest liver of them and the in-
terest and income thereof paid in equal shares to my said wife
and son and daughter as aforesaid, and at the death of the longest
liver of my said wife and son, the principal to be equally divided
between my said son and daughter or their lawful descendants
[if they or either of them should die before me].

Eighth. All the moneys arising from the sales of my said
real and personal property in this, my will, ordered to be sold
and not in this, my will, otherwise disposed of, after payment
of all my just debts and liens on my said real estate and the,
legacy aforesaid, I order my executors to invest and keep in-
vested on interest, on bond and mortgage, on real estate in the
state of New York, in the stocks or bonds of the state of New
York or of the United States, at the best interest they can ob-
tain for the same during the life of my said wife and son or
the longest liver of them, and as often as received to pay and
divide equally the said interest between my said wife and son and
daughter.”

§ 969. Trust of an annuity for a spendthrift and his wife
and children.*°—I give to my trustees, during the life of my
son , an annuity of dollars to be paid by equal quarterly
payments, the first to be made three months after my death, and
I authorize my trustees to provide for the payment of said an.
nuity by purchase from some good insurance company, or by
setting apart so much of my residuary estate as shall be sufficient
to pay from the income thereof such annuity; and when the
annuity shall have been provided for in either of such ways the
annuity shall be wholly charged on the purchased anntity, or

 

 

79In re Tompkins’ Estate, 154 N. 80 See ante, § 337,
Y. 634, 49 N. E. 135, 3 Prob. Rep.
Ann, 357.
§ 970 WILLS 684

on the annuity fund in exoneration of the rest of my estate;
and I declare that the capital of the annuity fund may be resorted
to in case at any time the income. thereof is insufficient to pay
said annuity, and that on the cesser of the said annuity the an-
nuity fund shall revert to my residuary estate. I direct my
trustees to stand possessed of the said annuity of dollars
upon trust thereout to pay all expenses of.a home for and the
care and maintenance of my said son, and that they shall have
full and uncontrolled discretion with respect to the application
of said annuity. :

 

§ 970. Spendthrift trust.—The part or share coming to
my son J. I give and bequeath to my brother A., of Lebanon
County, Pennsylvania, in trust for the use and benefit of my
said son J., said trustee to invest the funds at interest at his dis-
cretion, either in real estate or otherwise and pay to my said son
the interest thereof as often as it may accrue, and if invested in
real estate to give him the income or occupation of same, pro-
viding he pays all taxes upon it, and keeps the same in reasonable
repair from time to time during the term of his life, and in case
of neglect said trustee shall pay the taxes and make the neces-
sary repairs, and deduct from his annual income the amount
‘so expended, and pay annually to him the balance; and if invested
at interest, said trustee shall pay the annual state tax on the same,
and deduct it from the income, and the same is not to be in any
wise liable for any debts owing by my said son, nor for any
debts that may hereafter be contracted by him.**

§971. Trust for improvident son.—I hereby bequeath
the sum of dollars to my trustees, upon trust, to invest the
same in the manner authorized in the case of my general estate,
and in their absolute discretion from time to time, during the
life of my son , to pay all or any part of the income of the
said sum, and the investments thereof, or, if they shall from
time to time think fit, any part of the capital thereof, unto my
said son; or at their absolute discretion to apply the same for

 

 

81In re Minnich’s Estate, 206 Pa. 405, 55 Atl. 1067, 9 Prob. Rep. Ann.
113.
685 FORMS FOR PARTICULAR CLAUSES § 972

the maintenance and personal support of my said son, or of his
wife, if any, or of his children, for the time being, in such pro-
portions and in such manner as my trustees shall, in their abso-
jute discretion, from time to time think proper; and after the
death of the said , shall hold the said income, or so much
thereof as shall not be applied under such discretionary trust,
upon the trusts and for the purposes for which the said income
would be held if the said were dead; and after the death of
the said , Shall pay the income of the said trust fund to his
widow, if any, during her life; and after her death, in trust for
the children of said , then living, in equal shares. (Ultimate
trust to fall into residuary estate. )

 

 

 

 

§ 972. Trust for son for life, to cease on his alienation of
his interest.°°—Upon trust, that my trustees or trustee shall
pay the income of the trust fund to my son, or permit him to re-
ceive the same during his life, subject to the proviso that, if the
said son should at the time of my death have alienated, charged;
or disposed of, or if he shall, at any time or times thereafter,
alienate, charge, or dispose of, the said income or part thereof
or interest therein, or if, by reason of his bankruptcy or other
event happening either before or after my death, the said income
shall, wholly or in part, fail or cease to be personally enjoyed by
the said son, but the same or any part thereof shall, or, but for
this present proviso, would belong to, or become vested in, some
other person or persons, then the trust hereinbefore expressed
concerning the said income shall immediately thereupon cease
and determine, and the same income shall be held by my trustees
or trustee during all the then residue of the life of the said son
in the manner following, that is to say :—

§ 973. Discretionary trust of income after alienation.—
Upon trust during the residue of the life of the said son, or
during such shorter period, continuous or discontinuous, as my
trustees or trustee shall in their or his absolute discretion think
fit, to pay and apply the said income, or any part thereof; to

82 See ante, § 358,
§ 974 WILLS 686

and for the personal support and maintenance, or otherwise
for the benefit, of the said son or his wife, child, or chil-
dren, or remoter issue, for the time being, if any, whether in-
‘fants or of full age, of the said son, or such one or more, ex-
clusively of the others or other of such persons, and in such man-
ner as my trustees or trustee, in their or his absolute discretion,
shall think fit.

§ 974. Income to be applied after alienation as if son were
dead.—Upon trust to pay and apply the income thereof, or
so much as shall not from time to time be applied, under the
said discretionary trust, to the person or persons, and in like
manner as the same would be payable or applicable under the
ulterior trusts concerning the same hereinafter contained, if the
said son were then actually dead.

§ 975. Trust for son for life, determinable on bankruptcy,
etc.**—Upon trust, that my trustees or trustee shall pay the
income of the trust fund to my son, unless and until he shall
have done, committed, or suffered, or shall at any time or times
after my death do, commit, or suffer, any act, default, or thing
which would have the effect of vesting the right to receive such
income, if absolutely belonging to my said son, in any other per-
son or persons whomsoever. And from and after the failure
or determination, during the life of the said son, of the trust of
income hereinbefore expressed in his favor, my trustees or
trustee shall hold the trust fund and the future income thereof
upon the trusts and for the purposes upon and for which the
same would be applicable respectively under this my will if the
said son were then actually dead. And from and after the death
of the said son, etc.

§ 976. General proviso that life interest shall cease on
bankruptcy or alienation —Provided always, that if any per-
son in whose favor any trust of income during his or her life is
hereinbefore declared, shall at the time of my death have alien-
ated, charged, or disposed of, or if he or she shall at any time or

83 See ante, § 358.
687 FORMS FOR PARTICULAR CLAUSES § 977

times thereafter alienate or dispose of, the income to which he
or she shall be, or, but for this proviso, would be entitled, or any
part thereof, or interest therein, or if, by reason of his or her
bankruptcy or ary other event happening either before or after
my death, such income shall, or, but for this proviso, would,
wholly or in part, fail or cease to be personally enjoyed by such
person as aforesaid, but the same income, or any part thereof,
shall, or, but for this proviso, would be or become vested in some
other person or persons, then the trust of his income hereinbe-
fore declared in favor of the person whose life interest or any
part thereof shall so fail or cease to be personally enjoyed by
him or her, and shall be or become vested in some other person.
or persons as aforesaid, shall immediately thereupon cease and
determine. And from and after the failure or determination of
such trust of income, my trustees or trustee shall, during the
residue of the life of the person, the trust in whose favor shall
have so failed or determined, pay or apply the income, the trust
whereof shall have so failed or determined, to or for the benefit
of the person or persons who would be entitled thereto, under the
ulterior trusts hereinafter declared, if such person as aforesaid
were dead.

§ 977. Trust, income placed beyond reach of creditors,
trust to cease on obtaining of judgment.*“*—Eighth. In the
event of the death of my said son, R., either before or after my
decease, I give, devise, and bequeath to the lawful issue, if any,
of the said R., one-half (%4) of the residue of my estate men-
tioned in subdivision “f” of paragraph seventh of this will, to-
gether with the income then accumulated thereon. In the event
of the death of my said son, R., either before or after my de-
cease, without lawful issue, said residue, including the unpaid
income on all of the same, my said trustees shall: (1) Set aside
one-fourth (14) part of said residue to be added to the fund and
held in trust and invested in first mortgage real estate securities
for the benefit of my said daughter, N. M. S., and the income
thereof paid to her during the term of her natural life, in addi-

84 See ante, § 356,
§ 977 WILLS 688

tion to the income provided under subdivision “f” of paragraph
seventh of this will. (2) To pay one-fourth (14) of said residue
to my said wife if living at such time. (3) The remainder, in-
cluding the part to my wife in case of her death, to be paid to
my said daughter, M. J. W.; she to have and to hold the same,
to her, her heirs and assigns, forever.

Ninth. In the event of the death of my said daughter, N. M.
S., either before or after my decease, I give, devise, and bequeath
the said fifty-five hundred ($5,500) dollars mentioned in subdi-
vision “b” of paragraph seventh of this my will, the one-half
(%) of the residue of my estate mentioned in subdivision “f”
of said paragraph seventh, together with the income accumu-
lated thereon, and the one-fourth (14) part set aside of the share
of my said son, R., in the event of his death, as provided for in
the preceding paragraph eight, all to be paid to the lawful issue
of my said daughter N. M.S., if any. In the event of the death
of my said daughter N. M. S., either before or after my decease,
without lawful issue, said residue, including the unpaid income
on all of the same, my trustees shall: (1) Set aside one-fourth
(14) part of said residue, to be added to the fund, and held in
trust, and invested in first mortgage real estate securities for the
benefit of my said son, R., and the income thereof paid to him
during the term of his natural life in addition to the income pro-
vided under subdivision “f” of paragraph seventh of this will.
(2) To pay one-fourth (14) of said residue to my said wife, if
living at such time. (3) The remainder, including the part to my
wife in case of her death, to be paid to my said daughter M. J.
‘W.; she to have and to hold the same, to her, her heirs and as-
signs, forever.

Tenth. I hereby declare that, in making provision for the pay-
ment of the income of the portion of my estate hereby set aside
for my son, R., and my daughter, N. M. S., it is my design to
secure to them, and to each of them, the necessaries of life, so
that such income or estate can not be assigned, charged, pledged,
hypothecated, or in any way or manner controlled or disposed
of by them, or either of them, or taken by their creditors; and
for the purpose of making myself fully understood on this point,
689 FORMS FOR PARTICULAR CLAUSES § 978

and to carry out such design, it is my will that my executors and
trustees may, in their discretion, make payments to or for them,
or either of them, from said net income, as provided for, or to
wholly withhold the same, and in case any proceedings are in-
stituted for the purpose of reaching the income so provided for,
and of diverting it from the object intended by me, and a decree
or judgment obtained for that purpose, that then from that pe-
riod all payments from the said income to them, or either of
them, shall cease, and I direct my executors and testamentary
trustees from thenceforth to expend the said income provided for
in this item of my will, so far as may be necessary or requisite,
to the education and maintenance of the lawful issue of them, or
either of them, until such issue arrive at the age of twenty-one
years, in which event the said property shall be by my said execu-
tors and trustees assigned and conveyed to the said issue in the
proportion and as provided for them in paragraphs eight and
nine of this will; and in case there is no lawful issue of them, or
either of them, living, then to distribute to my daughter M. J. W.
and my said wife and their issue as hereinbefore provided.

§ 978. Bequest to trustee to appropriate as he deems
best.*°°—In case any remainder be left in the hands of my
executor and trustee, then he shall appropriate the same to the
defraying of the expenses of this trust, or in such other or dif-
ferent manner as he may deem best.**

§ 979. Precatory words which do not create a trust.**°—I,
F. J., by this my last will and testatment bequeath and devise to
W. P., L. S. B. and S. B. A, the sum of five thousand dollars
($5,000), to be expended by them without any responsibility to
any one, at their discretion, in such sums, at such times, and in
such places as they may deem fit, to secure the passage of laws
granting women, whether married or unmarried, the right to
vote, to hold office, to hold, manage, and devise property, and all

85 In re Luscombe’s Will, 109 Wis. 87 Abrey v. Duffield, 149 Mich. 248,
186, 85 N. W. 341, 6 Prob. Rep. Ann. 112 N. W. 936, 13 Prob. Rep. Ann,

419. 597.
86 See ante, § 421. 88 See ante, § 339,

44—Tuomp. WILLS.
§ 980 WILLS 690

other civil rights enjoyed by men; and for the preparation and
circulation of books, the delivery of lectures, and such other
means as they may judge best.*

§ 980. Absolute gift, not a trust.°—I give and bequeath
the residue of my estate, one-half to the Massachusetts Society
for the Prevention of Cruelty to Animals and the other half to
my friend, B. of Boston in the confidence that he will use it'in the
prosecution of his work against the encroachments of the Roman
Catholic Church upon our common school system.**

§ 981. Bequest to daughter to confirm invalid devise.—
V. I give and devise to the Ohio State University to. be in-
vested as the endowment fund, in fee simple and absolutely, all
the residue, rest and remainder of my real estate and personal
property in Ohio, Illinois, or elsewhere. This devise shall in-
clude lands or personal property acquired hereafter, or acquired
under Item 7. [This devise became void because of testator’s
death within a year after making will. ]

VI. If the devise and bequests contained in the last clause
shall fail or be held void for any cause, then I give and devise
the real and personal estate described in said clause number five
(5) to the children and legal representatives of my brother, C.,
and of G., deceased, in fee simple and absolutely.

VII. By the words rest and residue and remainder, in clause
five, is meant all my real and personal property, subject to the
life estate and interest given to my wife and daughter.

Also a codicil containing the following:

II. The object and intention of the devise in my will to the
children of G., deceased, and to the children of C., was that in
case of my death within a year from the date of my will and the
consequent failure of the bequest and devise to the Ohio State
University, the said children should take the property, but not
that they should have the same in any other event.

I now provide and declare that my said daughter is fully au-

89 Bacon v. Ransom, 139 Mass. 117, 91 Poor v. Bradbury, 196 Mass. 207,

29 N. E. 473, 4 Am. Prob. 364. 81 N. E. 882, 13 Prob. Rep. Ann. 87.
90 See ante, § 338.
691 FORMS FOR PARTICULAR CLAUSES § 982

thorized and empowered to ratify and confirm said devise and
bequest to the said university in case of my death within a year
from the date of said will, and she is desired and requested by
me to do so.

In case she complies with this request the devises and bequests
to the said children of G. and C. are hereby revoked.”

§ 982. General power of appointment of cestui que
trust.*—In trust for such person or persons, for such pur-
poses, and in such manner, as the said shall from time to
time, by any deed or deeds, revocable or irrevocable, or by will
or codicil, appoint; and in default of and subject to any such ap-
pointment, in trust, etc.

 

§ 983. General form of ultimate trust—And in case of
the failure or determination of all the trusts hereinbefore de-
clared and contained as to the whole or any part of the said trust
premises, or the income thereof, my trustees shall hold the said
trust premises and the income thereof, or so much thereof re-
spectively as to which the trust shall so fail or determine (or so
much thereof as shall not become absolutely vested or be applied
or disposed of under the trusts or powers herein contained), in
trust, etc.

§ 984. Ultimate trust for person who would take under
statutes of descent.—In trust for such person or persons as,
under the statutes of the state of for the distribution of the
effects of intestates, would have become entitled to my personal
estate at my death if I had died intestate, and without leaving a
widow, or any child; such persons, if more than one, to take as
tenants in common in the shares in which they would have taken ~
my personal estate under such statutes.

 

§ 985. Trust for testator’s brothers and sisters, and their
issue by right of representation.—(a) In trust for all or any

22 Thomas v. Board of Trustees of 92, 70 N. E. 896, 9 Prob. Rep. Ann.

Ohio State University, 70 Ohio St. 514.
83 See ante, ch. 19.
§ 986 WILLS 692

of my brothers and sisters living at my death, and the children
or child then living of any then deceased brother or sister of
mine, in equal shares, as tenants in common, but so that the chil-
dren of any deceased brother or sister, if more than one, shall
take equally between them only the share which their parent
would have taken if surviving me.

(b) In trust for such of my brothers and sisters as shall be
living at my death, and for such of the issue, living at my death,
of any of my brothers and sisters who may have died in my life-
time leaving issue living at my death, as being a male or males
shall attain the age of twenty-one years, and being a female or
females shall attain that age or marry, to take in equal shares by
right of representation, so that the issue of any of my said broth-
ers and sisters who may have died in my lifetime, as aforesaid,
shall take only the share which the parent of such issue would
have taken if living at my death.

§ 986. Trust for preachers, no trustee appointed.—After
the payment of my just debts and funeral expenses, I give, de-
vise and bequeath unto my beloved wife, M., for and during her
natural life, provided she remains single after my decease, the
use of and sole control and right of all my real and personal
estate in the state of Wisconsin or elsewhere of which I may die
possessed or be entitled to, and on her decease the said property
to be invested in a fund provided for that purpose for the sup-
port and maintenance of the superannuated preachers of the
church denominated the United Brethren in Christ.

§ 987. Short will leaving property to trustees and re-
ferring to deed of trust—lI give, devise, and bequeath all
the property, real and personal, of what kind and nature soever,
and wheresoever situated, of which I may die seised or possessed,
or to which at the time of my death I may be entitled, or in or
to which at the time of my death I may have any interest,
whether in possession, reversion, remainder or expectancy, to C.,
and B. in trust, however, for the uses and purposes set forth and

®4 Hood v. Dorer, 107 Wis. 149, 82 N. W. 546, 5 Prob. Rep. Ann, 548.
693 FORMS FOR PARTICULAR CLAUSES § 988

declared in that certain deed of trust, bearing date the 27th day
of October, 1892, made and executed by me to the said C. and B.*

§ 988. Discretion in terminating. trust..°—I hereby au-
thorize my trustees, in the exercise of a reasonable discretion,
to terminate this trust at any time by paying over to the bene-
ficiary, , the principal sum and any accumulations thereto,
freed from all trust, to be his absolutely, this to be done if the
trustees feel that he is capable of managing said principal sum
carefully, and that his life has been exemplary.

 

$989. Power of appointment after termination of trust
estate.°"—I direct that this trust shall terminate at the death
of my daughter, , hereinbefore named as beneficiary, and
the principal fund thereof after her decease freed from all trust,
I give, bequeath and devise to such person as she shall, in her
last will and testament, name, designate and appoint. If she
should fail to exercise suche power of appointment, then I give,
devise and bequeath the principal of the aforesaid trust estate,
absolutely, freed from all trust purposes, to the children of my
said daughter surviving her, and the issue of deceased children,
and their heirs and assigns forever, said issue to take the par-
ent’s share by right of representation.

 

§ 990. Devise to daughter, with power of appointment.—
I devise all my houses and lands situate at ——, with their ap-
purtenances, to the use of such persons or person, for such pur-
poses, and in such manner, as my daughter shall, whether
covert or sole, by any deed or deeds, with or without power of
revocation and new appointment, or by will or codicil, appoint;
and in default of such appointment, and so far as any appoint-
‘ment made by her shall not extend, to my said daughter ,
her heirs and assigns. 3

 

 

 

§ 991. Request to daughter to keep open a certain house
during a certain period of the year.*°—“It is my special wish

95In re Willey’s Estate (Cal.), 56 See ante, ch. 19.
Pac. 550, 4 Prob. Rep. Ann. 434, *8 Extract from the will of George
96 See ante, § 358, M. Pullman, ;
§ 992 “WILLS 694

that my said daughter shall each year keep open said island
and Castle Rest from not later than the 26th day of July, which
was my father’s birthday, until after the 14th of August, which
was my mother’s birthday, for the accommodation and enjoy-
ment of all the descendants of my parents who may wish to visit
and remain at said Castle Rest for the period during which
it is so opened, or for any shorter time within said period.”

§ 992. Bequest for the “comfortable support” of rela-
tives.°°—All the rest and residue of my estate, real and per-
sonal, of every kind and wherever situated,-I give, devise and
bequeath to my children, living at the time of my death, or born
thereafter, to be divided equally among them, absolutely and in
fee. But this provision in behalf of my children is subject to
the following charge: I have two widowed sisters, now living
in Tunica County, Mississippi, viz.: Mrs. C. and Mrs. H. It
is my will that so long as my said sisters, or either of them, shall
live, or shall have need of this aid, they and the survivor of them
shall receive a comfortable support out of my estate, equal to
what they now have; and the interests of my children taken
under this will, whether in the hands of my executor or of the
guardian of the children, are to contribute equally to furnish
this support, and being charged thus, this provision for my said
sisters is not to interfere with or delay the settlement of the
estate by the executor, and the turning over the interests of the
children to their guardian.

* * * * * * *

Both as executor and guardian, the said T. is to see to the
support provided for my two sisters, and fix the amount thereof
in his discretion; and amounts paid out therefor shall be good
vouchers in his accounts upon his own statement thereof, with-
out receipts of vouchers.

* * * * * * *

It is my express will and intention that the large powers and
discretion hereby given to said T. as executor and guardian shall
be considered as a matter of personal confidence and trust, and as

99 See ante, 8§ 354, 355.
695 FORMS FOR PARTICULAR CLAUSES § 993

such limited and confined to him, and not in any way to pass
to or vest in any other person who may become my personal
representative or guardian of my children. As to any other
person who may occupy these positions, it is my will that the
law, strictly administered, shall be the measure of power, with
all the safeguards of bond and security, and all the limitations
upon private action and judgment which the law prescribes and
provides. .

It is my will, and I do hereby expressly provide, that the pro-
vision made for my two sisters in item three of this will is to
have effect only so long as they shall continue unmarried; and
upon the marriage of either of them, the provision will at once
cease as to her.*

§ 993. Appointments under trusts.2—(a) By the last will
of K., dated and proved H. created a trust for my
‘benefit, and provided that on its termination by my death, I
should have the power to pass the capital thereof to whatever
person or persons I should appoint by my last will, therefore,
I now give, devise and bequeath the capital of said trust to my
‘son to have and to hold to his heirs and assigns forever.

(b) Whereas by the fifth clause of his last will and testament,
dated and proved , my father gave to trustees two
hundred thousand dollars, to pay the net income thereof for
life, and provided that the trust was to terminate on my decease,
and that I could by my last will and testament pass the principal.
thereof, discharged of all trust, to whomsoever J saw fit, I hereby
give and bequeath said principal sum, whether it be two hundred
thousand dollars, more or less, to my wife, , to be hers
absolutely.

 

 

 

 

 

 

§ 994. Refusal to execute power of appointment.—
Whereas, under the third article of my husband’s last will and
_ testament, dated and duly proved , he gave the residue
of his estate to trustees in trust to pay the income thereof to me

 

 

@
1 Alsup v. Clarke, 15 Lea (Tenn.) 2 See ante, § 376.
71, 5 Am. Prob. 497,
-§ 995 WILLS 696

for life, and provided that at my decease that I might appoint
to whom the principal of said trust should go, but that if I did
not exercise such power of appointment, then it should go share
and share alike to our children living at the time of my death,
the issue of a deceased child to take the parent’s share by right
of representation; I hereby declare myself satisfied with the
disposition by my husband’s will of the residue of the principal
of said trust and desire that the provisions of his will thereto.
be carried out and I decline to exercise the power of appointment
therein conferred on me.

§ 995. Trust deed, or declaration of trust.2—This instru-
ment certifies that I, of , have on this day transferred
-and delivered to of , fifteen first mortgage bonds of
the Railroad Company, which he is to hold, or his suc-
cessors, in trust on the following terms and conditions: He or
his successor is to collect each year on the coupons of the bonds
when due, and pay over the proceeds to me, less five per cent.
for services. If for any reason he deems it best, I authorize him
and his successors to sell such bonds, and invest the proceeds in
other bonds which under the statutes of this state are suitable
for trustees to invest in. I wish the investment to be made only
in bonds which can be transferred by manual delivery, and upon
my death the trust is to cease and the bonds are to be delivered
by the then trustee to , to have and hold absolutely.
will sign his name to this instrument accepting as trustee. If he
should die before me, or should resign, then I name as
trustee, who will also sign his name to an acceptance of this
trust. The sole authority of such trustees is to be taken from
this instrument, and neither of them is to apply to any court to
be appointed as trustees.

 

 

 

 

 

 

 

 

3 See ante, 8 4.
697,

i FORMS FOR PARTICULAR CLAUSES

§ 996

ARTICLE 17. Powers or Trustees‘

SECTION

996. Power to trustees to sell trust
property, with advice as to
its management.

997. Power to trustees to sell real
and personal estate.

998. Power to hold and invest pro-
ceeds of real and personal
estate.

999. Power to lay out streets, etc.

1000. Power to postpone the sale and
conversion of real and per-
sonal estate.

1001. Recommendation to trustees
that real estate remain un-
sold.

1002. Trust with power to sell and
reinvest, but not to carry on,
mercantile business.

1003. Power to retain investments.

1004. Direction as to wasting invest-
ments,

1005. Power to compound debts, etc.

1006. Appreciation or depreciation of
bonds.

1007. Power to continue mortgages.

1008. Foreclosure of mortgages.

1009. Power for trustees to mort-
gage trust property.

1010. General direction as to consent
to sales and investments.

1011. General direction for invest-
ment of trust moneys.

1012. Power to make investments
within a limited range.

1013. Power to vary investments.

1014. Investments and reinvestments.

1015. Power to apply to maintenance
of child in trustee’s discre-
tion.

1016. Powers as
maintenance,
of children.

1017. Powers to provide for -mainte-
nance, etc., out of capital.

to advancement,
and education

4See ante, § 420.

SECTION

1018. Direction as to stock or extra
cash dividends.

1019. Power to trustees to make ad-
vancements.

1020. Power for trustees to make ad-
vances to son out of trust
funds. |

1021. Power to rebuild.

1022. Erecting buildings and making
improvements.

1023. General power to accumulate
surplus income.

1024. Power to lease for twenty-one
years.

1025. Power to lease furnished house
until sold.

1026. Authority to trustees to permit
testator’s widow to reside in
his mansion house.

1027. Auditing and examining ac-
counts.

1028. Payment of commissions.

1029. Power to partition among ces-
tuis que trust.

1030. Power to allot specific prop-
erty in satisfaction of lega-
cies.

1031. Proviso that questions arising
under the will shall be settled
by the trustees.

1032. Power of trustees to determine
matters i doubt.

1033. Declaration that decision of
majority of trustees shall be
binding.

1034. Power to trustees to carry on
testator’s business.

1035. Power to dispose of business.

1036. Disposition of profits from
business.

1037. Power to abstain from engag-
ing in business.

1038. Power to continue partnership
business.
§ 996

SECTION

1039. Power to purchase shares of -

partners.

Power to trustees to leave cap-
ital in partnership business
on loan.

Power for trustee to purchase
any part of trust estate.

Power for son, .who is trustee,
to purchase part of the trust
estate on a valuation.

Power for testator’s sons, who
are trustees, to purchase.

Power to mortgage. :

Request by testator that the

1040.

1041.

1042,

1043.

1044,
1045.

trustees for the time being’

under this will shall employ
a certain attorney.

Trustee who is an attorney at
law to charge for business.

1046,

WILLS

698

SECTION

1047. Trustees’ receipt clause.

1048. Trustees’ indemnity clause.

1049. Trustees to hold purchased
lands upon trusts before de-
clared.

1050. Request to trustees to collect
mortgage and purchase land.

1051. Request to trustees to change
investment.

1052. Disclaimer of trust under will
by one trustee.

1053. Disclaimer of the trusts of a
will by a trustee who has re-
nounced probate thereof.

1054. Direction to trustees under a
will to sell stock and invest
proceeds of sale in mort-
gages.

§ 996. Power to trustees to sell trust property, with ad-

vice as to its management.°—I hereby authorize and em-
power the trustees for the time being acting under this will to
sell and convey such parts of the trust premises held by them
or him as the interest of the trust, or the advantages of those
interested, seems to require; but in the case of real estate, with
the written consent of the person or persons for whose benefit
the real estate proposed to be sold is held; and to execute, ac-
knowledge, and deliver such deeds and instruments as may be
necessary to pass title. But I recommend to my trustees the
greatest caution in making such sales and in making investments ;
and in all other matters I desire them rather to regard the safety
of the trust property than the amount of income to be derived
from it. My real estate has all been selected by me, and con-
sidered by me to be well located, and the titles have been thor-
oughly investigated and are believed to be perfect. I am of opin-
ion that all my securities are as safe as any property that can
be found; and, though they may not give a large percentage of
income, I advise that my heirs shall keep the same property that

5 See ante, § 421.
699 FORMS FOR PARTICULAR CLAUSES § 997

I leave them, rather than exchange it for other property that may
promise a greater income.

§ 997. Power.to trustees to sell real and personal estate.°
—TI authorize my said trustees, and the trustees or trustee for
the time being, at any time or times, to sell the whole or any
part or parts of my residuary real and personal estate, either
together or in parcels, and either by public auction or private
contract, and upon such terms and subject to such conditions,
and in such manner in all respects, as they or he shall think fit,
with power to buy in, or rescind, or vary any contract for sale,
and to resell without being responsible for loss; and for the
purposes aforesaid to execute all such deeds, assurances, and
things as they or he shall think fit.

§ 998. Power to hold and invest proceeds of real and per-
sonal estate."—-And I do hereby declare that the said trustees
and the survivor of them, their successors or successor, or the
trustees or trustee for the time being, shall, out of the moneys
to arise from the sale of the said real estate hereinbefore devised
in trust for sale, and from the calling in, sale, and conversion
into money of such parts of the said personal estate lastly herein-
before bequeathed as shall not consist of money, and, out of the
ready money of which I shall be possessed at my death, pay my
funeral and testamentary expenses, and debts and legacies (other
than specific legacies) bequeathed by this my will, or any codicil
hereto, and shall invest the residue of the same moneys in the
names or name of them, the said trustees or trustee for the time
being, in funds or securities for the time being suitable or author-
ized for the investment of trust moneys, and may at any time
vary or transpose such stocks, funds, or securities into or for
others of any nature hereby authorized, at their or his discretion.

§ 999. Power to lay out streets, etc..—I empower my
trustees or trustee to lay out all or any part of the hereditaments
hereinbefore devised on trust for sale, for building purposes,

6 See ante, § 380. 8 See ante, § 381.
7 See ante, § 390,
§ 1000 WILLS 700

and to appropriate and lay out any parts thereof, as they or he
shall think fit, for streets, roads, ways, squares, gardens, or
other open spaces, and to build, erect, lay down, make, and exe-
cute upon, on, or under any parts of the same hereditaments and
buildings, sewers, drains, gas pipes, water pipes, water courses,
fences and other works necessary to or in connection with’ build-
ing purposes. ,

§ 1000. Power to postpone the sale and conversion of real
and personal estate.—Provided always, and I hereby declare,
that it shall be lawful for the said trustees and the survivor of
them, their sticcessors or successor, or the trustees or trustee for
the time being, to defer and postpone the sale, conversion, and
collection of the whole or any part or parts of my said real and
personal estate, respectively, so long as such trustees or trustee
shall, in their or his discretion, deem proper, but my real estate
shall, for the purpose of transmission, be impressed with the
quality of personalty from the time of my death; and I empower
my said trustees or trustee, during such interval or postpone-
ment, to manage and let or cultivate my real and leasehold es-
tates, and to make any outlay which such trustees or trustee may
consider proper for improvements, repairs, premiums on policies,
or otherwise, for the benefit or in respect of my real or personal
estate.

§ 1001. Recommendation to trustees that real estate re-
main unsold.—I declare it to be my earnest request and
recommendation (but not so as to interfere with the legal effect
and operation of the trust for sale herein contained, or other-
wise to be legally binding or restrictive), that under no circum-
stances shall any part of my real estate be sold during the life-
time of my said wife, or during the minority of any of my chil-
dren, and that such real estate be not afterward sold unless or
until, in the judgment and discretion of said trustees or trustee,
it shall be requisite for the purpose of administering my estate,
or desirable or expedient with a view to the interest and ad-
vantage of the persons entitled to or interested in my estate,
that such sale should take place.
701 FORMS FOR PARTICULAR CLAUSES § 1002

§ 1002. Trust with power to sell and reinvest, but not to
carry on, mercantile business.—I hereby nominate and ap-
point my husband, L. M., executor and trustee, to perform the
trust of this will; and I bequeath to him all of my estate, of
every nature and description, of which I shall die seized and
possessed, or to which I shall be entitled to at the time of my
death, in trust, however, for my two sons, that he shall dispose
of the same to the following uses and purposes. And I hereby
authorize and empower him, if, in the performance of his trust,
it becomes in his judgment necessary or expedient, to sell at
public or private sale, in such manner as he shall deem best for
the interest of my two sons, any part or all of the estate which
shall come to his hands, and to invest and to reinvest the pro-
ceeds at his discretion. And he is to furnish and expend annually
proper amounts for the maintenance and education of my two
sons, and when they arrive at the age of twenty-one, to divide
the remainder of my said estate in his hands, after paying my
debts, and paying for education and maintenance of my said
two sons, between my said two sons, J. and A., equally.°

§ 1003. Power to retain investments.—Provided always,
and I hereby declare, that the trustees or trustee for the time
being of this my will may retain any shares or stock in any
public company, or any bonds of any such company, or of any
public body whatsoever, or any investments whatsoever, of which
I may be possessed at the time of my death; and that the property
so retained, and the annual income thereof, shall be held upon
the trusts, and with and subject to the powers, provisos, and
declarations herein declared and contained; but nothing herein
contained shall authorize the said trustees or trustee to make any
investments of any description cther than those hereinbefore
expressly authorized.

§ 1004. Direction as to wasting investments.—I think it
is probable that some of the stock and bonds hereby made a
part of the trust estate, namely (enumerating), are wasting in-

9 Eufaula Nat. Bank v. Manasses, 124 Ala. 379, 27 So. 258, 5 Prob. Rep.
Ann, 393,
§ 1005- WILLS 702

vestments. I direct my trustee and his successors to add to the
capital of the trust half the dividends, profits and interest re-
ceived from these investments, and to pay the remaining half of
said dividends, profits and interest to the beneficiaries. (or) (I
direct, however, the entire income therefrom, less expenses, to be
paid to the beneficiaries. )

§ 1005. Power to compound debts, etc.*°—And I hereby
authorize and empower the trustees or trustee for the time being
of this my will, in their or his absolute discretion, to allow, pay,
compromise, compound, enforce, waive, accept, or give real or
personal security for, or give time without taking any security for,
or refer to arbitration, any debts or demands whatsoever which
may be owing from or to, or be made upon or against or in be-
half of, my estate, whether the same be legally enforcible or not,
and upon such evidence as they or he shall think sufficient.

§ 1006. Appreciation or depreciation of bonds.*"—If any
bonds are received by my trustees from my executors or after-
ward purchased by them for the trust estate at a price in excess
of their face or par value, any loss, occasioned by the deprecia-
tion in value of said bonds, or by payment of such bonds at par
or face value at maturity, shall be borne by and taken out of the
principal rather than the income. If, however, bonds should
appreciate in value between the time when they are received or
purchased, and the date of their sale or maturity, 1 order and
direct that the increase representing such appreciation shall be
added to the principal and form a part thereof.

§ 1007. Power to continue mortgages.—And I also. de-
clare that any mortgages of real estate which I shall hold at my
death may, in the discretion of the said trustees or trustee, be
from time to time continued or renewed upon such terms as to
the rate of interest, duration, and time and mode of repayment
of the loan, and in all other respects, as shall be approved by
the said trustees or trustee.

10 See ante, § 399, 11 See ante, § 349,
703 FORMS FOR PARTICULAR CLAUSES § 1008

§ 1008. Foreclosure of mortgages.—If mortgages held by
my.said trustees upon any real estate should be foreclosed, I
authorize the said trustees to purchase the same at auction or
otherwise, and hold such realty as a part of the trust estate in
place of the mortgages so foreclosed.

§ 1009. Power for trustees to mortgage trust property.”
—Provided also, and I declare, that it shall be lawful for the
said trustees or trustee at any time or times, by mortgage of any
of the said real estate included in the general devise hereinbefore
contained, to raise any sum or sums of money which they or he
shall think necessary or expedient for the payment of funeral and
testamentary expenses, debts and legacies, or any part thereof,
or for any of the other purposes of this my will, or the execution
of any of the trusts and powers herein contained, and any such
mortgage may contain such powers of sale and other powers and
provisions as the said trustees or trustee may think fit. But no
person advancing any money on any such mortgage or charge
as aforesaid shall be bound or concerned to see that the money
proposed to be raised is actually wanted for the purposes afore-
said, or otherwise as to the propriety or expediency of such
money being raised. And I further declare that the said trustees
and trustee shall stand possessed of the surplus of the moneys
to be raised by any such mortgage as aforesaid which shall remain
after satisfying the purposes for which the same shall have been
raised, upon and for the trusts and purposes herein declared
concerning the residuary moneys aforesaid, and as if such sur-
plus had formed part of the same residuary moneys.

§ 1010. General direction as to consent to sales and in-
vestments."“—Provided always, and I declare, that during
the lifetime of my said wife no sale, conversion, investment, or
variation of investment of any part of my residuary real or per-
sonal estate in which she shall for the time being be interested,
shall be made without her previous consent in writing; and that
after the death of my said wife no sale, conversion, investment

12 See ante, § 379, 13 See ante, § 390.
§ 1611 WILLS 704

or variation of investment of any part of my said residuary
estate, which shall have been appropriated to answer the whole
or any part of the share hereinafter given to my trustees or
trustee in trust for any of my children and his or her issue, shall
be made during the life of the child entitled to the income of such
share, if of full age, without his or her previous consent in
writing.

§ 1011. General direction for investment of trust moneys.
_—I direct that my trustees or trustee shall invest all moneys
which shall come into their or his hands, applicable under any of
the trusts, powers or provisions of this my will, as and when
such moneys shall be received by them or him, and until the
same shall be required to be paid or transferred to any person
or persons absolutely entitled thereto, or be applied for any
purpose under any such trust, power, or provision, in the names
or name of my trustees or trustee, at their or his discretion, in:
or upon any of the stocks, funds, or securities following, that is
to say, etc.

§ 1012. Power to make investments within a limited
range.—In any bonds or securities of thé United States, in
good mortgages of improved city property in the states of
and , or in the bonds or stock of any incorporated com-
pany in the United States which shall have paid dividends of
not less than three per cent. per annum on its common stock for
a period of at least years prior to the time of investment.

 

 

 

§ 1013. Power to vary investments.—And may from time
to time, with such consent or at such discretion as aforesaid, “ry,
alter, and transpose all or any of the stocks, funds, shares and
securities into or for other stocks, funds, shares, or securities
of the same or a like nature.

§ 1014. Investments and reinvestments.—I hereby au-
thorize, empower and direct my trustees and their successors to
invest and reinvest from time to time the funds of the trust
estates created by this will, without obtaining the approval or
705 FORMS FOR PARTICULAR CLAUSES § 1015

authority of any court, in stock of sound and conservatively man-
aged banks, stocks and bonds of stable financial institutions, in-
dustrial and manufacturing establishments, sound dividend-pay-
ing railroads, public service corporations, improved and pro-
ductive real estate, and mortgages secured by real estate or per-
sonal property, not exceeding in amount one-half the value of the
security. I desire that not more than twenty-five per cent. of the
trust funds shall be invested in one kind of security or property
and my trustees are not to be held responsible for any losses re-
sulting from investments made in the above-permitted securities
and property, provided they exercise a sound discretion and act
in good faith.**

§ 1015. Power to apply to maintenance of child in trus-
tee’s discretion."—My said trustees may, after the death of
my said wife, apply the whole, or such part as they in their dis-
cretion shall think fit, of the income of the expectant or pre-
sumptive share of any child or grandchild of mine, in the said
trust premises under the trusts hereinbefore contained, for or
toward his or her maintenance, education, or benefit, and may
either themselves so apply the same, or may pay the same to
the guardians or guardian of such child or grandchild for the
purposes aforesaid, without seeing to the application thereof.

§ 1016. Powers as to advancement, maintenance, and
education of children.*°\—And I further declare that the said
trustees or trustee for the time being shall have an absolute dis-
cretion as to the application of the said trust moneys, funds, se-
curities and income, and every or any part thereof, for or toward
the advancement, maintenance, or education, or otherwise for
the benefit, of all or any of the children for the time being en-
titled thereto, presumptively or in expectancy.

§ 1017. Powers to provide for maintenance, etc., out of
capital.—Provided always, and I declare, that it shall be law-
ful for my trustees or trustee, in addition to the powers for maip-

14 See ante, § 415. 16 See ante, § 355,
15 See ante, § 421.

45—Tuomp. WILLS,
§ 1018 WILLS 706

tenance and education by law vested in my trustees or trustee,
to apply not only the income but also any part of the capital of
the said trust fund, or so much thereof as my trustees or trustee
shall deem sufficient, in, for, or toward the maintenance, educa-
tion, and advancement, or otherwise for the benefit, of any of
my said children during their respective minorities, in such man-
ner as my trustees or trustee shall think fit, and the surplus or
residue thereof Ainapplied to the purposes aforesaid shall, from
time to time, be invested by my trustees or trustee in augmenta-
tion of the capital of the said trust fund, and shall follow the
destination thereof.

§ 1018. Direction as to stock or extra cash dividends.—
If at any time during the continuance of the trust, stock or extra
cash dividends shall be declared upon any stock forming a part
of the principal of the trust fund, I direct my trustees to treat
such stock or cash dividends as a part of the principal trust fund
and to add them thereto; (or to treat such dividends as income
and pay them to the beneficiaries;) (or to treat the stock divi-
dends as part of the principal, and the cash dividends as part of
the income to be paid to the beneficiaries. )

§ 1019. Power to trustees to make advancements.—I au-
thorize my trustees at any time (with the consent in writing
of my said wife) to raise by sale, mortgage, or otherwise any
part or parts not exceeding in the whole a moiety of the value
(to be determined for that purpose by my trustees in their dis-
cretion) of the then expectant, presumptive, or vested share of
any child or grandchild of mine under the trusts aforesaid, and
to pay or apply the same for his or her advancement, as my
trustees shall think fit.

§ 1020. Power for trustees to make advances to son out
of trust funds.—I authorize my trustees or trustee, in their
or his discretion, to advance and lend to my son, for the purposes
of his business, any sum or sums, not exceeding in the whole
dollars, out of the said trust funds, at such rate of interest,

 
707 FORMS FOR PARTICULAR CLAUSES § 1021

for such period, and on such personal or other security, as my
trustees or trustee shall think fit. -

§ 1021. Power to rebuild."—In case of destruction of any
buildings which form a part of the trust estate, the trustees, may,
in their discretion, use the proceeds obtained from insurance
against such destruction, to restore, or rebuild such structures,
and may use other funds from the trust estate for such purpose,
if the insurance proceeds are insufficient.

§ 1022. Erecting buildings and making improvements."—
In case my trustees deem it advisable to improve any of the
real estate held by them in trust, by erecting buildings and making
improvements or if assessments are at any time levied for im-
provements on such real estate, then I direct my said trustees to
use and employ for such purposes any funds, securities and
other personal property which constitute a part of the principal
of the trust.

§ 1023. General power to accumulate surplus income.“—
I declare that my trustees or trustee shall accumulate any income
from trust moneys or trust property not immediately applicable
under any of the trusts, powers, or provisions herein contained,
by way of compound interest, by investing the same, and all the
resulting income thereof, from time to time, in or upon any such
stocks, funds, or securities as are hereinbefore authorized for
investments, in increase of the capital of such moneys or property,
or, if such income be actually vested in a legatee or devisee for
life, for the benefit of such legatee or devisee.

§ 1024. Power to lease for twenty-one years.”—And I de-
clare that, while my said real estate or any part of it shall remain
unsold under the trust for sale hereinbefore contained, it shall
be lawful for my trustees or trustee from time to time to let the
same, or so much or such parts thereof as for the time being shall
remain unsold, or any part of the same, at the best yearly rent

17 See ante, § 381. 19 See ante, § 346.
18 See ante, § 381. 20 See ante, § 378,
§ 1025 WILLS 708

for the time being obtainable, without taking any premium or
fine, either from year to year, or any term of years not exceeding
twenty-one years from the time of letting, and with and subject
to such covenants and conditions as my said trustees or trustee
shall think proper, but so that there be contained therein a con-
dition of re-entry for nonpayment of the rent thereby to be
reserved, and so that the lessee execute a counterpart thereof,
and thereby covenant for the payment of the rent.

§ 1025. Power to lease furnished house until sold.—Pro-
vided always, that until my said house in and my said house
in shall be sold, it shall be lawful for my trustees or trustee
to lease the same; and, if they or he shall think fit, together with
my said house, to lease the furniture and other articles in or upon
the same for such number of years, upon such terms, and in
such manner as they or he shall consider to be for the benefit
of the person or persons entitled to the same, under or by virtue
of the trusts of my will; and the rent and annual income reserved
or produced thereby shall be applied in the same manner as if the
same were income arising from the investment of the proceeds
of the sale of the said house or houses respectively, under the
power and trusts herein contained.

 

 

§ 1026. Authority to trustees to permit testator’s widow
to reside in his mansion house.—Provided always, that if and
so long as my trustees or trustee should find it impracticable or
shall deem is inexpedient to sell or let my dwelling-house at ;
and the garden or pleasure-grounds thereto belonging, it shall
be lawful for such trustees or trustee, if they or he should think
proper, to permit my said wife to reside in and occupy the said
dwelling-house, garden, grounds and premises, without paying
any rent or other compensation for the same; my said wife,
nevertheless, during her residence as aforesaid, keeping the said
premises in good order, repair, and condition, and paying all
taxes, rates, assessments, and other outgoings in respect thereof,
including the expense of keeping on foot a policy of insurance
in the sum of dollars to be effected in the names or name
of my trustees or trustee.

 

 
709 FORMS FOR PARTICULAR CLAUSES § 1027

§ 1027. Auditing and examining accounts."—I direct my
trustee to keep accurate books of account, which, together with
all vouchers, documents, and other papers, relating to the ad-
ministration of the estate, and also all the securities, property
and investments thereof, shall be at all times open for the
inspection of the remaindermen and of the cestuis que trust, in
person or by attorney. I also direct my trustees once a year to
furnish a full account to each of the cestuis que trust and re-
maindermen.

§ 1028. Payment of commissions.—I direct my trustees
and their successors to pay all commissions, brokerage, etc., on
sales of either real or personal property made by them from the
principal (or the income) and not the income, (or the principal)
(or from either income or principal in their discretion).

§ 1029. Power to partition among cestuis que trust.—
Provided always, and I authorize my trustees or trustee, in their
or his absolute discretion, to partition or allot my residuary
estate, both real and personal, or any parts or part thereof, among
or to the respective actual or presumptive objects of the trusts,
or any of such objects, in satisfaction, wholly or in part, of their,
his, or her shares or share in the same premises, in such manner,
and charged or not with such sum or sums for equality of par-
tition, as they or he shall think right; with power for my trus-
tees or trustee to determine the value of the property so parti-
tioned or allotted, by valuation or otherwise, as they or he shall
think fit; and I declare that any such determination shall be
conclusive and binding on all persons interested in my residuary
estate, or any part thereof, under the trusts therein contained.

§ 1030. Power to allot specific property in satisfaction of
legacies.—I authorize my trustees, at any time or times
(with the consent in writing of such of my children as shall
then be living and of full age, or the majority in number of
them, and if there shall be no such child), at their discretion, to

21 See ante, § 401.
§ 1031 WILLS 710

appropriate any part of my estate, whether real or personal,
hereinbefore devised and bequeathed to my trustees in trust, in
its then actual condition or state of investment, in or toward
satisfaction of any legacy. or share in the said trust premises,
with power for that purpose conclusively to determine the value
of the said trust premises, or any part or parts thereof, in such
manner as they shall think fit.

§ 1031. Proviso that questions arising under the will shall
be settled by the trustees.”—And I declare that, if any ques-
tion should arise concerning the construction and administra-
tion of my will, or any clause, matter, or thing therein contained
or with relation thereto, my trustees or trustee, acting either on
their or his own judgment, or under professional advice, and
upon such evidence as they or he shall think fit, may determine
such question by writing under their or his hands or hand; and
I declare that such determination shall be final and binding on
all persons interested under this my will or any codicil hereto.

§ 1032. Power of trustees to determine matters in doubt. |
—aAnd I declare that the trustees or trustee for the time being of
this my will shall have the fullest powers of determining what
articles of property pass under any specific bequest contained
in this my will or any codicil hereto, and of apportioning blended
trust funds, and of determining whether any moneys are to be
treated as capital or income, and generally of determining all
matters as to which any doubt, difficulty, or question may arise
under or in relation to the execution of the trusts of this my
will or any codicil hereto; and I declare that every determination
of the said trustees or trustee in relation to any of the matters
aforesaid, whether made upon a question formally or actually
raised or implied in any of the acts or proceedings of the said
trustees or trustee in relation to the premises, shall bind all par-
ties interested under this my will, and shall not be objected to
or questioned upon any ground whatsoever.

22 See ante, § 432.
711 FORMS FOR PARTICULAR CLAUSES § 1033

§ 1033. Declaration that decision of majority of trustees
shall be binding.*—(a) I also declare and direct that in case
any difference of opinion shall at any time arise between the
said trustees as to any matter arising in the execution or exercise
of any trust, power, or discretion, under this my will, or any
codicil hereto, the decision of the majority of the trustees shall.
be binding and conclusive, and that the dissenting trustee or
trustees shall execute such deeds and instrument, and do such
acts, as may be requisite to give effect to such decision, without
incurring any responsibility thereby.

(b) And I declare that, in case a difference of opinion should
exist among my trustees for the time being in regard to any of
the trust affairs, or any act, matter, or thing proposed to be done
in relation thereto, the opinion‘and determination of the majority
of the same trustees shall be conclusive, it being my intention that
the acts and proceedings of the majority of the said trustees shall,
for all purposes of this my will, be and be deemed to be and be
taken as the acts and proceedings of the whole or entire body of
the same trustees, any rule of law or equity to the contrary not-
withstanding.

§ 1034. Power to trustees to carry on testator’s busi-
ness.*—I authorize my trustees to carry on the trade or
business now carried on by me at , during such period as
they shall think fit, and for that purpose to retain and employ
therein the capital which shall at my death be employed therein,
and such additional capital as they shall think fit to advance from
time to time from my property in their hands, with power to
employ, at such salary as they shall think fit, a manager of the
said business, and generally to act in all matters relating to the
said business as if they were beneficially entitled thereto, and
with power to delegate all or any of the powers vested in them
in relation to the said business to any person or persons whom
they may think fit; and my trustees shall be free from all re-
sponsibility, and be fully indemnified out of my estate in their
hands, in respect of any loss arising in the said business.

 

23 See ante, § 418, 24 See ante, § 421.
§ 1035 WILLS 712

§ 1035. Power to dispose of business.—And I declare that,
in case the said trustees or trustee shall at any time be of opin-
ion that the said business can not be continued to the advantage
of my estate, or in case all the trustees shall be unwilling to en-
gage therein, they, he, or she shall be at liberty to sell or dispose »
of the same, and the stock in trade and effects thereof.

§ 1036. Disposition of profits from business.—And I de-
clare that all profits and-interest which may accrue to my estate
from the carrying on of the said business, and from the employ-
ment therein of my personal estate, or any part thereof, shall be
added to and considered and applied as a part of my residuary
estate.

§ 1037. Power to abstain from engaging in business.—
Provided, nevertheless, and I further declare, that if any one or
more of the said trustees shall be unwilling to engage in and con-
tinue such business as aforesaid, he, she, or they may allow his,
her, or their co-trustee or co-trustees to engage in and continue
the same, and to act alone in the execution of the trusts of this
my will in relation thereto. And I declare that any trustee or
trustees who may so abstain from engaging in such business shall
be entirely free from all responsibility in connection therewith,
and that the trustees or trustee who shall act in the trusts herein-
before declared in respect of the carrying on of my said business
shall be entitled to be fully indemnified out of my estate in re-
spect of all losses and expenses incurred in or about the same.

§ 1038. Power to continue partnership business.—And I
hereby further authorize and empower the said trustees or trustee,
in case they or he, in their or his absolute and uncontrolled
discretion, shall think fit, to continue, for the benefit of my estate,
for such period or respective periods as they or he shall think
expedient, any business in which I may be engaged or interested
at the time of my decease, whether alone or in partnership with
any person or persons, and in the latter case whether such con-
tinuance shall be required by the terms of any articles or agree-
ment of partnership which may be subsisting at my decease or
713 FORMS FOR PARTICULAR CLAUSES § 1039

not; and to enter into any new arrangement or agreement, from
time to time, with any partner or partners, in relation to any
such business, either by way of substitution for any arrangement
or agreement subsisting at my death, or otherwise, and to take
any partner or partners, or additional partner or partners, into
any such business, and from time to time to alter or vary any
arrangement or agreement under which such business may be
carried on, or the nature of the business, as the said trustees
or trustee may think fit.

§ 1039. Power to purchase shares of partners—And I
also empower the said trustees or trustee to purchase the share
or shares of any partner or partners (whether in partnership
with me at my death, or subsequently admitted), in any such busi-
ness as aforesaid, upon such terms as they or he shall think
proper, the share or shares so purchased to be held upon the same
trusts and with the same powers as the share or shares previously
belonging to my estate in such business.

§ 1040. Power to trustees to leave capital in partnership
business on loan.—I authorize my trustees, if they in their
discretion think fit, to permit the whole or any part of the sum
due to my estate as my share and interest in the partnership busi-
ness of & Co., or any other partnership in which I may
be engaged at my decease, to remain in the said business as a
loan, for such period as they may think proper, either at a fixed
rate of interest or at a rate varying with or dependent on the
profits of the business; and from time .to time to renew or con-
tinue such loan, provided the repayment of the amount so loaned,
with interest thereon, be secured by the bond or other obligation
of the persons to whom the loan shall be made, either with or
without any other security for the same, as my trustees shall think
fit. My said capital or any part thereof may be allowed to re-
main in the said partnership business, although my trustees for
the time being, or any or either of them, may be concerned
therein, and notwithstanding any change from time to time in
the persons carrying on the same, or in the character of the

 
§ 1041 WILLS 714

partnership business; and my trustees shall not be in any wise
responsible for any loss thereby occasioned.

§ 1041. Power for trustee to purchase any part of trust
estate.—And I declare that my trustees or trustee, or any of
them, shall be competent to purchase any part of my trust estate,
either at any public auction or from a co-trustee or co-trustees
by private contract, any rule of equity to the contrary notwith-
standing.

§ 1042. Power for son, who is a trustee, to purchase part
of the trust estate on a valuation.—And I declare that my
said son , notwithstanding that he is or may be a trustee of
this my will, and acting in the trusts thereof, shall be competent
to purchase any part of my trust estate, either at any public
auction or from his co-trustee or co-trustees by private contract,
any rule of equity to the contrary notwithstanding; but so that,
if such purchase shall be by private contract, the sale shall be at
a price to be fixed by a valuer to be appointed by my trustees or
trustee other than my said son, and shall be in all respects con-
ducted by such my other trustees or trustee. And I further de-
clare, that my trustees or trustee other than my said son
may, in their or his discretion, allow any purchase money for all
or any part of my trust estate which shall be so sold to him to
remain, for any time not exceeding years, at interest, after
the rate of per cent. or upward, on such personal or other
security as such other trustees or trustee shall think fit: provided
always, that my trustees or trustee, other than my said son 7
may call in and compel payment of the said purchase money when
the same shall become payable, but without being answerable for
any loss caused by or arising from any omission so to do, or delay
in so doing.

 

 

 

 

 

§ 1043. Power for testator’s sons, who are trustees, to
purchase.—And I hereby declare, that it shall be lawful for
my said sons and , or either of them, notwithstanding
their being trustees of this my will, to become the purchasers or
purchaser of any part or parts of the real and personal estate

 

 
715 FORMS FOR PARTICULAR CLAUSES § 1044

hereinbefore devised and bequeathed in trust for sale, at any
public sale or sales thereof, or by private contract, provided
in the latter case the sale shall be conducted on behalf of my
estate by the trustees or trustee other than my son or sons so
purchasing, or shall be at a price fixed by a competent person
named by such other trustees or trustee.

§ 1044. Power to mortgage.”—lIf my said personal estate
not specifically bequeathed shall be insufficient to pay my debts
and the legacies bequeathed by this my will or any codicil hereto,
it shall be lawful for the said trustees or trustee, at any time or
times, by mortgage or charge of my real estate passing by the
general devise hereinbefore contained, or any of it, to raise any
sum cr sums of money which the said trustees or trustee shall
think necessary for the payment of the said debts and legacies,
or such part thereof as my‘said personal estate shall be insuf-
ficient to pay; and the interest of the sum or sums so to be raised
may be paid out of the rents and profits of the real estate to be
charged herewith, or out of the income of any part or parts of
my residuary real or personal estate. And I declare that no
person advancing any money on any such mortgage or charge
as aforesaid shall be bound or concerned to ascertain or inquire
as to the insufficiency of my said personal estate not specifically
bequeathed, or to see that the money proposed to be raised is
actually wanted for the purposes aforesaid, or otherwise as to the
propriety or expediency of such money being raised.

§ 1045. Request by testator that the trustees for the
time being under his will shall employ a certain attorney.”—
I hereby declare it to be my express desire that the trustees or
trustee for the time being under this will shall, whenever they
may require legal advice or assistance in carrying out the trusts
and powers of this my will, or in any matter arising under the
same, consult and employ of , he having an intimate
knowledge of my affairs and of my views and wishes respecting
many matters that may arise in the execution of such trusts and
powers.

 

 

25 See ante, § 379. 26 See ante, § 397,
§ 1046 WILLS 716

§ 1046. Trustee who is an attorney at law to charge for
business.?”—Provided always, and I hereby declare, that the
said (trustee) (and every future trustee of this my will who shall
be an attorney at law) may act as such attorney to my estate,
and shall be entitled to charge and shall be paid for all business
done by him as such attorney in respect of my estate, in the
‘same manner as if he had not been a trustee or executor of this
‘my will (and for the time which he shall necessarily or properly
employ in the execution of his duties as a trustee).

§ 1047. Trustees’ receipt clause.—And I hereby declare
that the receipt of the said trustees, or the survivor of them, or
the trustees or trustee for the time being under my will, for the
purchase moneys of any property hereby directed or authorized
to be sold, and for any other moneys paid, and for any stocks,
funds, or securities transferred to them or him by virtue of
this my will, or in the execution of any of the trusts or powers
hereof, shall effectually discharge the person or persons paying
or transferring the same therefrom, and from being bound to see
to the application or being answerable for the loss or misapplica-
tion thereof.

§ 1048. Trustees’ indemnity clause.*—Provided always,
and I hereby declare, that the trustees for the time being of this
my will shall be respectively chargeable only for such moneys,
stocks, funds, shares and securities as they shall respectively
actually receive, notwithstanding their respectively signing any
receipt for the sake of conformity, and shall be answerable and
accountable only for their own acts, receipts, neglects, and de-
faults respectively, and not for those of each other, nor for any
other person with whom or into whose hands any trust moneys
or securities may be deposited or come, nor for the insufficiency
or deficiency of any stocks, funds, shares, or securities, nor for
any other loss, unless the same shall happen through their own
wilful default respectively; and also that the said trustees or
trustee for the time being may reimburse themselves and himself

27 See ante, § 422. 28 See ante, § 415.
717 FORMS FOR PARTICULAR CLAUSES § 1049

or pay and discharge out of the trust premises all expenses in-
curred in or about the execution of the trusts or powers of this
my will.

§ 1049. Trustees to hold purchased lands upon trusts be-
fore declared.i—And I hereby declare, that my trustees or
trustee shall hold the said lands so to be purchased, and the rents,
issues and profits thereof in the meantime until the sale thereof,
and the money to arise from such sale, and the stocks, funds, or
securities whereon the same shall be invested, and the annual
produce and income thereof, upon, with, and subject to such of
the several trusts, powers, provisos, and directions herein ex-
pressed and contained concerning the said moneys, stocks, funds,
and securities out of the proceeds or produce whereof such pur-
chase or purchases shall be made as aforesaid, and the income
thereof, as shall be then subsisting or capable of taking effect.
And I further declare that the messuages, lands, tenements, and
hereditaments to be so purchased as aforesaid shall, from and im-
mediately after such purchase or purchases, be considered for all
the purposes of my will as personal estate, and be transmitted ac-
cordingly, though no actual conversion thereof into money shall
have taken place.

§ 1050. Request to trustees to collect mortgage and pur-
chase land.—To and , trustees of the will of 2
proved in the probate court of county the day of ;
19—. We do hereby request you to call in a certain mortgage,
made by you by , dated the day of , 19—, and
recorded with deeds, book ——, page , the same being
now due, and to invest the proceeds thereof in the purchase in
fee of the estate or property known as the estate, situate
on street, in the city of , and to invest the surplus, if
any, of the said money, after completing the purchase of said
estate and the payment of incidental expenses thereof, in United
States bonds. In witness, etc.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

§ 1051. Request to trustees to change investment.”—To
and , trustees under the will of , late of , de-

 

 

 

 

29 See ante, § 390,
§ 1052 WILLS 718

 

ceased, said will bearing date of the day of , and being
duly proved on the day of , in the probate court of
the county of I do hereby request you to sell the United
States bonds now held by you as such trustees, and forming part
of the residuary estate of the said testator, to the income whereof
I am entitled for life; and I do request you to invest the net pro-
ceeds of such sale in the purchase of the first mortgage bonds
of the Railroad Company.

 

 

 

 

 

§ 1052. Disclaimer of trust under will by one trustee.*°—
Whereas of , now deceased, duly executed his last will,
dated , and thereby purported to devise and bequeath real
and personal estate to me, jointly with other persons upon cer-
tain trusts by the said will declared; and whereas the said ——-
died on the day of , without having revoked or altered
his said will; and whereas I have not accepted, or consented to
accept, any of the devises or bequests purported to be made to
me as aforesaid, and have in no manner interfered or intermed-
dled with the real or personal estate of the said Now these
presents witness that I have disclaimed, and do hereby disclaim,
all the real and personal estate and effects devised or bequeathed
by the said will, and all devises, bequests, legacies, and benefits
made or given to me by the said will, and the office of trustee
of the said will, and all powers, rights, and privileges under
the same. In witness, etc.

 

 

 

 

 

 

§ 1053. Disclaimer of the trusts of a will by a trustee who
has renounced probate thereof.—Whereas by his will dated
the day of ——-, A. B., late of , deceased, devised and
bequeathed all his real and personal property unto and to the use
of the undersigned, disclaiming trustee, and other trustees therein
named, their heirs, executors, administrators and assigns, upon
certain trusts therein mentioned, and appointed the undersigned
and other trustees executors of his will.

And, whereas, the said testator died on the
‘and the said will was on the day of

 

 

 

 

day of ;
proved by the said

 

 

30 See ante, § 413.
719 FORMS FOR PARTICULAR CLAUSES § 1054

 

other trustees, in the probate court for the county of , in
the state of , the undersigned having renounced probate
thereof ;

Now these presents witness that the undersigned hereby dis-
claims all the estate and interest in the real and personal estate
of said testator, devised and bequeathed to him by the said will
whether jointly with the other trustees therein named, or other-
wise, and the trusts and powers thereby reposed in him, whether
jointly with the said other trustees, or otherwise.

In witness, etc.

(Signature and seal of disclaiming trustee. )

 

§ 1054. Direction to trustees under a will to sell stock
and invest proceeds of sale in mortgages.—I, , life ten-
ant, hereby authorize and direct you to sell so much of the stock
of the Railroad Company standing in your names as trustees
of the will of (testator), deceased, as will raise the sum of
dollars and to invest such sum when realized in mortgages
of land and improvements thereon situate at , in the state
of , such mortgages to bear interest at the rate of per
cent. per annum, or a higher rate if that can be obtained on safe
investments.

To (trustees of will).

 

 

 

 

 

 

 

(Signature of life tenant.)

ArTICLE 18. Powers to ExEecuTors AND PROVISIONS AS TO
MANAGEMENT OF EstaTE*

SECTION SECTION
1055. Statement as to debts. 1061. Directions to executors to sell
1056. Expenses of contest of will. property, reinvest and pay in-
1057. Power of sale to executor. come,
1058. Power to executors to sell real 1062. Power to borrow money.

and personal estate. 1063. Power to sign commercial pa-
1059. Power to executors to sell real per.

estate with consent of wife. 1064. Power to complete contracts.
1060. Power to executors to mort- 1065. Voting shares.
gage and sell real estate. 1066. Partition by executors,

 

1 See ante, ch. 20,
§ 1055 WILLS 720
SECTION / SECTION
1067. Authority to executors to lease. 1078. Power to executors to continue
1068. Power to pay infant’s legacy to loan to son.
parent or guardian. 1079. Employment of attorneys, etc.,
1069. Executors to have power to by executors.
convey—Title vesting in them 1080. Employment of clerks, etc. by
by implication. executors.
1070. Bequest to wife and children 1081. Power to executors to compro-
distributively—Power to ex- mise and arbitrate.
ecutors to sell, 1082. Insurance by executors.
1071. Direction for sale of property 1083. Keeping records by executors.
when youngest child is twen- 1084. Inventory, filing of.
ty-one, or all children are 1085. Powers of attorney by execu-
married. tors or trustees.
1072. Carrying on partnership. 1086. Discretionary powers of execu-
1073: Incorporation of business. tors.
1074. Power to executors to wind up 1087. Executor’s receipt.
testator’s partnership busi- 1088. Request to consult with wife.
ness. 1089. Request to an executor in na-
1075. Power to executors to continue ture of a precatory trust.
testator’s business. 1090. Request to literary executor.
1076. Power to executors to make ar- 1091. Request to destroy letters.
rangements for admission of 1092. Interest upon legacies.
testator’s son into his part- 1093. Apportionment of interest.
nership business. 1094. Time of payment of legacies.
1077. Power to executors to continue 1095. Payment of income.
loan. 1096. Capitalization of income.
§ 1055. Statement as to debts.2~—(a) In order to inform

my executors of the probable state of my affairs at the time of my
decease, I will state that usually I have no debts except a few nec-
essary ones incurred from time to time of a domestic nature, and
I intend and expect to have no more than these at the time of my
decease.

(b) I instruct my executors that the claims against me which
and pretend to have are absolutely without foundation,
and that if such claims are pressed, they are to consult with ;
my attorney, in whose hands I have placed all the evidence and
papers necessary to refute their claim.

(c) It has never been my custom to indorse commercial paper
or become liable as surety for others, and I do not expect to have
any such obligations outstanding at the time of my decease.

 

 

 

2 See ante, § 393,
721 FORMS FOR PARTICULAR CLAUSES § 1056

§ 1056. Expenses of contest of will—If there shall be an
attempt made to contest this will, then I authorize and direct my
executors to resist such attempt, and to pay the expenses thereof
out of my general estate; but none of the expenses of those who
contest the will shall be paid out of my estate.

§ 1057. Power of sale to executor.*—Hereby I authorize
my executor to sell all or any part of my real or personal estate
at public auction or at private sale, and to convey such estate by
proper deeds of conveyance; and no purchaser shall be required
to see to the application of the purchase-money.

§ 1058. Power to executors to sell real and personal es-
tate.—I authorize and empower my executors or the sur-
vivor of them, or the executors or executor for the time being of
this my will, if and whenever, in the settlement of my estate, they
deem it advisable, at their or his discretion, to sell the whole or
any part of my real and personal property, at public or private
sale, and to execute and deliver all deeds, instruments or transfer,
and other writings necessary to pass a proper title thereto.

§ 1059. Power to executors to sell real estate with con-
sent of wife——I authorize and empower my executors and
trustees. by and with the consent of my wife, to be signified by her
joining in the conveyance, to sell and convey at public or private
sale all or any of the real estate bequeathed to my wife for life;
and also authorize and empower my executors and trustees to re-
ceive and invest the proceeds, and pay or apply the interest and
income thereof to my wife so long as she shall live.

§ 1060. Power to executors to mortgage and sell real
’ estate.—I hereby authorize and empower my executors, the
survivors and survivor of them, and their successors, to mortgage
and to sell and convey all and any of my real estate for cash, or
upon credit, and I do also authorize and empower them and him
to apply any moneys obtained from the mortgage or sale of any
part of my real estate to the improvement of any other part
thereof.

3 See ante, § 392,
46—Tuomp. WILLS.
§ 1061 WILLS 722

§ 1061. Directions to executors to sell property, reinvest
and pay income.—First. I give, bequeath, and devise unto
my executors hereinafter named * * * all of my property,
real and personal, of every-name, nature, and kind, of which I
shall die seised, or which I may have or own at the time of my de-
cease, for the following uses and purposes, and to be held and dis-
posed of by them as follows, viz.: I direct and require them to
sell and convey the real estate, and convert all of said property,
real and personal, into money as soon as it can conveniently be
done without prejudice or injury to the estate, and after paying
my debts and such necessary expenses as are properly payable _
therefrom, to invest the same in bonds and mortgages on im-
proved farming lands in any of the states of the United States in
which slavery did not exist on the first day of January, A. D.,
1861, at a legal rate of interest not less than six per cent. per
annum, or in the bonds of any of said states, or in the bonds of
the government of the United States. * * *

Second. The income of my said estate, after deducting the
necessary costs and expenses of investing the property and collect-
ing the income, is to be, and I will and direct that the same be,
paid out and disposed of as follows, viz.: Two-thirds thereof
if to be annually retained by or paid over to my beloved wife,
during her lifetime, and is to belong absolutely to her. The re-
maining one-third I direct and require my said executors to pay
out, for the necessary use and expenses of the family of my be-
loved son, including himself, in such sums for rent, food, cloth-
ing, family supplies, and expenses as may be necessary for the
support of himself and family.*

§ 1062. Power to borrow money.—lIf{ the condition of my
estate is such that, in the best judgment of my executors, it is
advisable to borrow money for the settlement of my estate, 1
hereby authorize them so to do, and my estate shall be bound for
the repayment of such loan.

§ 1063. Power to sign commercial paper.—I{ my execu-
tors shall deem it necessary in settling my affairs, I hereby au-

4JIn re Slocum, 169 N. Y. 153, 62 N. E. 130, 7 Prob. Rep. Ann. 235.
723 FORMS FOR PARTICULAR CLAUSES § 1064

thorize and empower them to make, sign, accept, or indorse any
form of negotiable papers and the same shall bind my estate as if
I had signed them in my lifetime. Such indorsements to be made
by the executors in the name of the estate.

§ 1064. Power to complete contracts.—There have been
certain contracts entered into between me and the city of
If such contracts shall not have been completed at the time of my
decease, then I confer on my executors full power and authority
to carry out and complete such contracts.

 

§ 1065. Voting shares.°—I authorize and direct my ex-
ecutors and trustees to vote at all corporate meetings, either in
person or by proxy, any shares of stock of corporations, belong-
ing to my estate in their custody.

§ 1066. Partition by executors.—My executors shall have
absolute power and authority to partition and divide in severalty
the real property devised in this will, and to allot the same to and
among the trust estates herein created.

§ 1067. Authority to executors to lease..-—My executors
are empowered hereby to lease any or all of my real estate for a
term of years which shall not exceed the period necessary for full
settlement of my estate.

§ 1068. Power to pay infant’s legacy to parent or guard-
ian—I hereby empower my executors to pay the legacies
hereinbefore bequeathed to the said —— and , in case they
shall respectively be under the age of twenty-one years, to their
father or guardian or guardians, whose receipt shall be a sufficient
discharge for the same, and shall exonerate my executors from all
responsibility with respect to the application thereof.

 

§ 1069. Executors to have power to convey—Title vest-
ing in them by-implication—It is my will, and I do direct,
that all my just debts be fully paid out of my estate, in the man-
ner hereinafter provided. * * * It is my will, and I do direct,

5 See ante, § 391. 6 See ante, § 378,
§ 1069 WILLS 724

that any and all debts and demands against me, and existing at
the time of my decease, be fully paid; and to that end, and for
that purpose, I do direct that in the payment of my debts my ex-
ecutors shall use (1) any and all moneys I may have on hand at
my decease; (2) the avails of any debts, claims, demands, notes,
and mortgages that may be due and owing to me at my decease;
and should the amount of my liabilities at my decease exceed the
amount of money so on hand and the amount so due me as afore-
said, or should my said debts exceed the amount that can be
realized on such claims, then I do direct that any such balance be
paid out of the proceeds arising from the sale or sales of any
land or lots of land [of] which I may die seised. If it shall be-
come necessary for my executors to sell any of my real estate for
the purpose of paying any debt or liability existing against my
estate, I do direct and empower my executors hereinafter named
to sell, and by deed convey, any such part or parts of the real es-
tate of which I shall die seised as shall be necessary for that pur-
pose. And it is my desire and my will, and I do direct, that in
making such sale or sales, that my executors shall make sale of
such part of my real estate, and on such terms and in such manner,
as, in the judgment of my executors, shall be for the best inter-
ests of all persons interested in my estate. After my debts have
been fully paid as hereinbefore provided, I do direct, authorize,
and empower my executors to make a sale or sales of any part or
all of the real estate of which I shall die seised, at such time and
in such manner as shall, in the judgment of my executors, be for
the best interests of my estate and all persons interested therein;
and to that end and for that purpose I do authorize and empower
my said executors, if they shall see fit and proper so to do, to di-
vide, subdivide, and plat any portion thereof for such sale; and I
do authorize and empower my said executors to sell and convey
by good and sufficient deed to any purchaser or purchasers of
any part of my said real estate so by them sold, thereby convey-
ing to such purchasers the full and complete title to the prem-
ises so purchased by them. The proceeds arising from any and
all sales of any part of my said real estate after my debts have.
been fully paid, as such proceeds shall accumulate from time to
725 FORMS FOR PARTICULAR CLAUSES § 1070

time, and all moneys that are not necessary to be used in paying
off any existing indebtedness that shall come to the hands of my
executors, as such executors of my estate, from any source what-
ever, I do give and bequeath to my said wife and children, as
follows: * * * It is my will, and for a more perfect under-
standing of this, my will, and to avoid the possibility of a doubt
as to my intention and purpose, here I do again declare it to be
my will, and I do direct and empower my executors acting and
performing the duties of this trust to use their own judgment and
discretion, subject to the provisions hereinbefore made, as to the
proper time and manner of making sale or sales of any part of
my real estate; and I hereby authorize and empower my said
executors to sell, deed, and convey the same, and divide and pay
over the proceeds of such sale, as hereinbefore provided. * * *7

§ 1070. Bequest to wife and children distributively—
Power to executors to sell.—All the rest, residue, and re-
mainder of my personal estate, and the net proceeds of the sales
of the rest, residue, and remainder of my real estate, owned by
me individually or with my copartner, E. T., or others, I give, de-
vise, and bequeath to my wife and my children, to be divided
equally between them, share and share alike; that is to say, to my
wife one share, to each child an equal share with my wife. Should
any of my children have died, leaving lawful issue, such deceased
child’s share to be given to such issue.

For the purpose of such distribution of my estate among my
wife and children, I fully authorize and empower my executors
and executrix hereinafter named, or such of them as shall qualify,
and the survivors or survivor of them to sell and dispose of any
and all my real estate at public or private sale at such time or
times within a lawful period and on such terms as they shall deem
most advantageous to my estate, and to execute and deliver to
the purchaser or purchasers thereof good and sufficient deeds
of conveyances thereof, and to do each and every act and thing
lawful and necessary for them to carry out and complete said

7 Arlington State Bank vy. Paulsen, 57 Nebr. 286, 78 N. W. 303, 4 Prob.
Rep. Ann. 359,

‘
§ 1071 WILLS 726

sales. I also authorize my executrix and executors hereinafter
named to invest and reinvest the moneys of my estate until its
distribution, such investments to be on improved real estate in the
city of New York, or bonds of the United States government, or
New York state or city bonds. The net income of my estate
until its distribution I direct to be divided equally between my
wife and children, share and share alike.- Having, from my
long acquaintance and association in business with my copartner,
E. T., a high opinion of his experience, integrity, and judgment,
I would recommend to my other executors to listen and give
great weight to his suggestions and advice in the sale and dis-
position of my real estate, particularly in the sale of the property
owned by the firm of T. & R?

§ 1071. Direction for sale of property when youngest
child is twenty-one, or all children are married. “Paragraph
Seven. When my youngest child arrives at the age of twenty-
one years, or when all my children shall have married, then in
either of said events my executrix and executor are directed to
sell all of the real and personal property then held by them as
such; except the home provided for my said wife and children
by paragraph two of this my will, unless my said wife is then
dead or some of my said children are minors or unmarried, on
such terms as they may select, either for cash, or part cash and
part on credit or wholly on credit; but if on credit then such
credit shall not be over two years, and notes with security to be
approved by them to be given by the purchaser or purchasers of
said property. And the proceeds of said sale when all are col-
lected shall be distributed by my said executrix and executor as
follows: First. My said wife as to said distribution to be con-
sidered as one of my children and to receive a child’s share of
said proceeds absolutely and in her own right. And if a child’s
share so to be received by her does not amount to the sum of five
thousand dollars, then and in that event, I direct my executrix
and executor after deducting her share as above stated from said
proceeds of sale, to take from the remainder of said proceeds of

8In re Russell, 168 N. Y. 169, 61 N. E. 166, 7 Prob. Rep. Ann. 163.
727 FORMS FOR PARTICULAR CLAUSES § 1071

sale, an emount of money which with the amount of the child’s
share to be received by my said wife as herein stated absolutely,
will make said sum of five thousand dollars. And said sum so
taken to make up said sum of five thousand dollars, shall be in-
vested by my executrix and executor in real or personal property
and titles to such property taken in their names, and the rents,
incomes, and profits of said property as they may accrue, to be
paid over to my said wife during her lifetime. Second. The
balance of said proceeds of said sale to be distributed equitably
among all my children, including my daughter D. and my son
W. D., provided, however, that such child or children who shall
have recéived an advance under paragraph six of this my will,
shall on said distribution be charged up with such advance, and
the legal interest thereon from the time said advance was so re-
ceived, as a portion of such child or children’s distributive share
in my said estate. And such child or children so receiving said
advance shall not be entitled to receive any further advance on
his or her share, until the child or children who have not re-
ceived any advance or who have not received the full amount of
said advance, shall receive a sum out of said proceeds of sale
which taken by itself or being added to the amount which may
have been previously advanced to her or him, including interest
from the time said advance was so made, shall make all of said
children equal, and then after all have been made equal, the bal-
ance to be distributed among them share and share alike.
“Paragraph Eighth. If at the time said sale of the real and
personal property is authorized to be made by executrix and ex-
ecutor under paragraph seven of this will, my wife is still living,
then my said executrix and executor are not to sell the house and
tract of land to be provided for my said wife under paragraph
second of this my will, but on the death of my said wife, if her
said death occurs subsequently to the sale authorized under para-
graph seven of this my will, my surviving executor is authorized
and directed to sell said tract of land so provided for a house, and
also the property in which the surplus to make up the sum of five
thousand dollars was invested as by paragraph seven of this my
will, as he may deem best, but not on a credit of over twelve
§ 1072 WILLS 728

months. And the proceeds of said sale to be distributed between
my children equitably and as directed by this paragraph of this
my will.’””

| § 1072. Carrying on partnership.°—I hereby authorize
and empower my executors to carry on and continue the business
of the partnership of which I am a member, conducted under the
name of X, Y, & Z for a period of ten years from my decease,
but they are not to invest therein any larger portion of my estate
than may be invested at the time of my decease. Any losses in-
curred in the conduct of said business are to be borne by my
estate.

§ 1073. Incorporation of business.—I suggest to my co-
partner, whom I have made an executor of this will, and to .
my residuary legatee, to whom my entire interest in the partner-
ship business of the firm of J. & S. falls under this will, that they
incorporate said business as soon as possible.

 

§ 1074. Power to executors to wind up testator’s partner-
ship business.—(a) I authorize and empower the acting ex-
ecutors or executor for the time being of this my will to make
any arrangements which to them or him shall seem fitting and
reasonable for the settlement and adjustment with my surviving
partner or partners of all my rights and liabilities in respect of
any business in which I may be engaged as a partner at the time
of my death, with full power to accept an agreed or estimated
sum as the value of my share and interest in such partnership busi-
ness, and to make any arrangements for giving time to my sur-
viving partner or partners, and for accepting payments from him
or them by such instalments as may be thought proper, and gen-
erally to act in the premises in such manner as the persons or per-
son exercising the present power shall think proper, without being
liable for any loss which may be occasioned thereby.

(b) I direct my executors, as soon as conveniently may be after
my death, to concur with other persons interested in winding up.

9 Russell v. Andrews, 120 Ala. 222, 10 See ante § 420.
24 So. 573, 4 Prob. Rep. Ann. 171.
729 FORMS FOR PARTICULAR CLAUSES § 1075

 

 

the business of » now carried on by the firm of & Co.,
of which I am a partner, and to realize my share and interest
therein; and for that purpose I authorize my said executors to
enter into, make, and execute all such agreements, arrangements,
assurances, and things as they shall in their discretion think
reasonable and expedient, having regard to the agreements and
provisions of the articles of partnership under which the busi-
ness of the said firm is carried on, or any agreement for the time
being subsisting in modification thereof or substitution therefor,
without being answerable for any loss which may be occasioned.
by any such agreement, arrangement, assurance, or thing.

§ 1075. Power to executors to continue testator’s busi-
ness.—I authorize my executors for the time being to carry
on, during such period as they shall think fit, the trade or busi-
ness of , now carried on by me, and for that purpose to re-
tain and employ therein the capital which shall at my death be
employed therein, and such additional capital as they shall think
fit to advance from time to time out of my residuary estate, with
power to employ, at such salary as they shall think fit, any man-
ager of the said business, and generally to act in all matters re-
lating to the said business as if they were beneficially entitled
thereto; and my executors shall be free from all responsibility
for losses arising in the prosecution of the said business.

 

§ 1076. Power to executors to make arrangements for ad-
mission of testator’s son into his partnership business.—I
authorize my executors to make any arrangements with the sur-
viving partners of my firm of & Co. for the admission into
the said firm of any son of mine as partner, for the whole or any
part of my share in the said business; and on the admission of
such son, either to sell to him my share in the said business on
such terms as may be reasonable, or to allot such share to him in
satisfaction, wholly or in part, of his share in my residuary estate ;
and to Jeave the whole or any part of the purchase-money to be
paid by such son as a loan to him, payable with interest at the rate
of- per cent. per annum, by such instalments, at such times,

 

 
§ 1077 WILLS 730°

and in such manner as may be agreed upon, the payment of such
instalment and interest to be secured by the bond or covenant of
such son.

§ 1077. Power to executors to continue loan.—And
whereas is indebted to me in the sum of dollars, for
which I hold his promissory note: Now I hereby empower my
executors to postpone the calling in of such debt, or any other
debt which may be owing to me from the said at the time of
my decease, for such period as my executors may think proper,
without taking security for the same, and without being re-
sponsible for loss.

 

 

 

§ 1078. Power to executors to continue loan to son,—And
whereas my son ——— is indebted to me in the sum of dol-
lars, for which I hold his bond, dated the day of F
19—, now I hereby authorize and empower my executors or ex-
ecutor, in their or his discretion, to postpone the calling in of such
bond debt, or any other debt which may be owing to me from the
said —— at the time of my death, for such period as my said
executors or executor shall think proper.

 

 

 

§ 1079. Employment of attorneys, etc., by executor.“—
I desire my executors to employ, as their attorney and legal ad-
viser in the settlement of my estate, , who has been my
counsellor for years.

If in settling my estate, my executors shall have occasion for
the services of a real estate broker, it is my direction that they
employ my friend ;

 

 

§ 1080. Employment of clerks, etc., by executors.’—I
authorize my executors to employ in the settlement of my estate
such agents, clerks, bookkeepers and attorneys as they may see
fit, and to pay them adequately out of the funds of my estate.

§ 1081. Power to executors to compromise and arbi-
trate.*"—(a) I hereby confer on my executors authority to

11 See ante, § 397. 13 See ante, § 399,
12 See ante, § 397.
731 FORMS FOR PARTICULAR CLAUSES § 1082

adjust and settle all claims in favor of or against my estate by
compromise or arbitration.

(b) I authorize and empower my executors to compromise
any and all debts, claims and demands due my estate or asserted
against my estate, in any way and manner which they may see
fit, and such settlements by my executors are to be final and bind-
ing on my estate, and I release the executors from all responsibil-
ity for loss which may be sustained by my estate from a com-
promise made by them.

(c) I empower the acting executors or executor for the time
being of this my will to pay and satisfy, or compromise or com-
pound, any debts owing or claimed to be owing by or from me or
my estate, and any liabilities to which I or my estate may be or
may be alleged to be subject, and to accept any composition or
any security, real or personal, for any debts owing to me or my
estate, and to allow such time for the payment of any such debt
or composition (either with or without taking security for the
same) as to them or him shall seem reasonable; and to refer to
arbitration and settle all debts, accounts, questions, and things
which shall be owing or claimed to be owing from or to me or
my estate, or be depending or arise between me or my said execu-
tors or executor, and any other person or persons; and generally
to act in relation to the premises in such manner as they or he
shall think expedient, without being liable for any loss occasioned
thereby.

§ 1082. Insurance by executors.“—(a) I direct my execu-
tors and trustees constantly to keep the buildings on my real
estate insured against loss by fire in amounts equal to their as-
sessed valuation.

(b) I leave it to the discretion of my executors and trustees
whether they will insure the buildings on my real estate, and
give them full power to do so if they see fit, and release them
from liability if any loss from fire should arise which is not cov-
ered by insurance.

14 See ante, § 403.
§ 1083 WILLS 732

§ 1083. Keeping records by executors.°.—I recommend
to my executors to keep accurate records of every meeting, and
of all transactions, and suggest that at the close of each meeting
they enter in a record book a full statement of all business trans-
acted or proposed, and that each sign such statement, in order to
prevent misunderstandings.

§ 1084. Inventory, filing of.*°—(a) I direct my executors
to make no inventory of my estate, and render no account thereof
to court. ;

(b) I hereby release my executors from making or filing any
list or inventory of my estate.

§ 1085. Powers of attorney by executors or trustees.—I
hereby authorize each of my executors (or trustees) to give from
time to time, and as occasion may demand, a revocable power of
attorney duly executed to any one or more of his coexecutors (or
trustees) to act in his place and stead, and to execute in his name
as such executor (or trustee) any instrument, document, deeds,
or conveyances, which said executors (or trustees) are author-
ized by law or by this will to execute. .

§ 1086. Discretionary powers of executors..”"—(a) All the
powers which I have by this will conferred on my executors and
trustees are to be exercised in their discretion, and are not im-
perative directions.

(b) The powers conferred upon my executors in this will to
be exercised in their discretion shall extend to and be exercised
by the executors for the time being, whether original or substi-
tuted, and are also conferred upon any administrator or admin-
istrators with the will annexed.

§ 1087. Executor’s receipt.—The receipt of my executor
for any money paid to or any property transferred to him shall be
an absolute discharge to the person paying or transferring the
same, and such person shall not be required to see to the applica-
tion thereof.

15 See ante, § 400. 17 See ante, § 372.
16 See ante, § 400.
733 FORMS FOR PARTICULAR CLAUSES § 1088

§ 1088. Request to consult with wife—It is my wish that
my executors will consult freely with my wife in all matters re-
specting my estate, and carry out her wishes whenever reasonably
practicable.

§ 1089. Request to an executor in nature of a precatory
trust.°—I request my said executor, but not so as to impose
any legal obligation on him, or to create any trust or equity in
favor of any other person, to carry out my wishes expressed in
a letter addressed to and deposited with this my will, which
letter I expressly declare not to be testamentary, whether the
contents or existence thereof shall or shall not be communicated
to the person to whom the same is addressed during my lifetime.

 

§ 1090. Request to literary executor—‘‘As I have ex-
pressed to my daughter, Clara Langdon Clemens, and to my asso-
ciate, Albert Bigelow Paine, my ideas and desires regarding the
administration of my literary productions and as they are espe-
cially familiar with my wishes in that respect, I request that my
executors and trustees above named confer and advise with my
said daughter Clara Langdon Clemens, and the said Albert Big-
elow Paine, as to all matters relating in any way to the control,
management and disposition of my literary productions, pub-
lished and unpublished, and all my literary articles and mem-
oranda of every kind and description and generally as to all mat-
ters which pertain to copyrights and such other literary property
as I may leave at the time of my decease.’’”

 

§ 1091. Request to destroy letters.—I request to ex-
amine all my letters, letter-books, manuscripts, and papers, and
to destroy such of them as he shall consider ought not to be pre-
served; and I declare that it shall be in his entire discretion
whether he shall show or disclose the same or the contents thereof
to any other person.

18 See ante, § 339, 19From the will of Samuel M.
Clemens (Mark Twain).
§ 1092 WILLS 734

.§ 1092. Interest upon legacies.°—(a) It is my direction
that the monetary bequests herein given shall be paid two years
after the probate of this will, and that no interest shall be paid
thereon.

(b) I direct my executor to pay the pecuniary legacies herein
provided, conformably to law, and to pay no interest thereon.

(c) I direct my executor, whenever he pays the pecuniary
legacies herein given, to pay thereon interest at the rate of six
per cent. per annum from the date of my death.

(d) I give to J. S. a legacy of five hundred dollars to be paid
two years after my death, with interest at the rate of five per
cent. per annum from the date of my decease.

(e) I direct that the pecuniary legacies given by this will shall
be paid at the discretion of my executor within three years from
the date of my decease, and shall bear interest at the annual rate
of five per cent. until paid. '

§ 1093. Apportionment of interest.—The interest or divi-
dends on all stocks or bonds bequeathed by this will either to
legatees or in trust, shail be apportioned, and such portion thereof
as became due before my death shall pass to my residuary lega-
tees, and if such portion is not due at that date, it shall pass to
them when collected.

§ 1094. Time of payment of legacies."—I do order that
none of the legacies or interest herein given or bequeathed shall
be due or payable during the lifetime of my mother, but that all
interest that may accrue or become due on any obligations belong-
ing to my estate shall be used for the comfort and support of my
mother; and if said interest is not sufficient, then I do order my
executor to pay out of my estate such sum as may become neces-
sary for the support of my said mother and for her burial.”

§ 1095. Payment of income.”—(a) I declare that the in-
come of all trusts created by this will shall be payable to the bene-
ficiaries thereof from the date of my death.

20 See ante, § 396. 22 Welsh v. Brown, 43 N. J. L. 37,

21 See ante, § 394, 2 Am. Prob. 221.
23 See ante, § 349, °
735 FORMS FOR PARTICULAR CLAUSES § 1096

(b) I declare that the income of all trusts created by this will
shall be payable after two years from the proving of this will
have elapsed.

(c) I direct my executors to pay in quarterly payments to A. B.
from the time of my decease until property has been set apart for
the establishment of the trust for his benefit, a sum of money
equal to five per cent. per annum upon the amount so given in
trust.

(d) Inasmuch as the trust estate for the benefit of my wife is
not to be established until two years after the probate of this will,
I hereby direct my executors to pay in monthly instalments to her,
from the general funds of my estate, beginning at the date of my
decease and continuing until the establishment of said trust, the
sum of five thousand dollars per annum.

§ 1096. Capitalization of income.**—I hereby authorize
my trustees, in the exercise of their discretion, to add each year a
part of the net income from the trust fund to the capital thereof,
which shall become a part of the principal. However, in so do-
ing they shall take into consideration the needs of the beneficiary
and the manner in which he uses the trust income, and if he uses
this wisely and well, I trust they will not add any portion of the
income to the principal.

ARTICLE 19. Provisions AS TO APPOINTMENT OF EXECUTORS
AND TRUSTEES AND GUARDIANS”

SECTION SECTION
1097. Appointment of executors. 1103. Appointment of executor as to
1098. Appointment of executrix with- particular property.
out security. 1104. Delegation of power to appoint
1099. Appointment of executors to executor.
: serve without bond and set- 1105. Power of appointment of ex-
tle estate out of court. ecutor left to judge.
1100. Substitutive appointment of ex- 1106. Appointment of guardian.
ecutors and trustees. 1107. Appointment of an agent to
1101. Appointment of new executors manage and wind up testa-
or trustees. tor’s partnership business.
1102. Appointment of literary execu- 1108. Appointment of trustees.
tor.

24 See ante, § 346. 25 See ante, ch. 21.
§ 1097 WILLS 736

SECTION SECTION

1109. Filling vacancies in board of 1113. Appointment of a new trustee
trustees. as provided for by will.

1110. Appointment of new trustees.

1111. Codicil appointing an executor
and trustee in place of an ex-
ecutor and trustee who has
died.

1112. Codicil appointing an executor
and trustee in place of a son

1114. Termination of trust on death,
etc., of trustee.

1115. Liability of executors and trus-
tees.

1116. Compensation of trustees.

1117. Provision for services to estate.

1118. Compensation of executors.

named in will who has died,
and revocation of bequest to
son.

§ 1097. Appointment of executors.”—(a) I appoint
and executors and trustees of this my will (and I direct that
they be exempt from giving a surety or sureties upon their official
bonds, both as said executors and trustees).

(b) I appoint my wife sole executrix of this my will ( and I
direct that she be exempt from giving any surety or sureties upon
her official bond).

(c) I appoint my two sons, and ——, my executors, so
far only as concerns my share and interest in the partnership
business of , carried on at , in the county of , un-
der the style or firm of & Co., and in the partnership prop-
erty, moneys, debts, and arrears of profits hereinafter respectively
bequeathed to them. And I direct, etc.

(d) I appoint my wife , during her widowhood, and my
son , and of , to be executrix and executors and
trustees of this my will; but if my wife should marry again, she
shall thereupon cease to be an executor and trustee of my will,
and in such case all property hereby devised and bequeathed in
trust shall, as soon as may be, be transferred to and vested in the
trustee or trustees for the time being of this my will.

(e) LT appoint my wife —— and my son as executors un-
der this will, and if when I die, my son has reached the age
of twenty-one years, he also is to qualify and act as executor.

 

 

 

 

 

 

 

 

 

 

 

 

 

§ 1098. Appointment of executrix without security.7’"—
I hereby appoint my wife, E., sole executrix of this my last

26 See ante, § 410. 27 See ante, § 416,
737. FORMS FOR PARTICULAR CLAUSES § {099

will and testament, and it is my will and desire that no security
be required of or exacted from her for the performance of these
trusts, inasmuch as I have full faith and confidence in her honor,
honesty and integrity for the true and faithful performance of
the same. If, however, security can not be entirely waived, it is
my will and desire that no more be required than just sufficient
to cover any indebtedness which I may, at the time of my death,
have.”*

§ 1099. Appointment of executors to serve without bond
and settle estate out of court.*°W—I hereby nominate and ap-
point F. D. B., E. H. B. and J. E. B., or the survivors, the execu-
tors of this my last will and testament, and request and direct that
no bond or other security of any kind be required of them, or
either of them, and that in the administration of my said estate
they act according to their best judgment. And it is my further
desire, and I hereby direct, that my estate shall be settled in the
manner provided in this will, and that letters testamentary or of
administration shall not be required, but that my estate shall be
settled without the intervention of any court whatever, except that
notice to creditors shall be given in the manner required by law,
and upon the expiration of the time for presenting claims, all
claims not before presented shall be by the court duly adjudged to
be barred. And I authorize and empower my executors or the sur-
vivors to make sales of real estate or personal property or release
mortgages without the necessity of applying to probate or other
court for an order of sale, and without the necessity of reporting
such sale to any probate or other court, or obtaining an order of
confirmation thereof; it being my will, wish, and desire that my
said executors or the survivors shall handle and manage my estate
the same as if I could if living, and I authorize and empower a
majority of my executors or a majority of the survivors to do any
and all acts which the full number of said executors are author-
ized to do under the terms of this my last will and testament.*°

28 Newlin v. Phillips (Del.), 60 3° Boyer v. Robinson, 26 Wash 117,

Atl. 1068, 10 Prob. Rep. Ann. 655. 66 Pac. 119, 7 Prob. Rep. Ann. 102.
29 See ante, § 416.

47—Tuomp. WILLS.
§ 1100 WILLS 738

§ 1100. Substitutive appointment of executors and trus-
tees.°*—(a) I appoint and execttors and trustees
of this my will; and in case either of them shall die in my life-
time, or shall decline to act, I appoint an executor and trus-
tee in his place.

(b) I appoint of and of executors and
trustees of my will; and in case either or both of them shall die
in my lifetime, or renounce probate, then I appoint of
executor in his or their place. And in case either or both of the
said executors shall die in my lifetime, or decline to act as trus-
tees or trustee, then I appoint the said of to be trustee
in his or their place; and in such case I declare this my will, and
all the devises, bequests, powers, and provisions hereinafter con-
tained shall be read and construed in the same manner, and shall
have the same operation and effect in all respects as if the name
of the said of ——— had been inserted therein instead of the
name of the trustee or trustees so dying or refusing as aforesaid.

 

 

 

 

 

 

 

 

 

§ 1101. Appointment of new executors or trustees.”—(a)
If any one of my three executors or trustees dies, resigns, or be-
comes incapacitated, I direct the other two to appoint, under their
hands and seals, another executor or trustee, who shall be a per-
son fitted for the position, and who shall be thereupon vested with
the same authority as if he had been named in this will.

(b) Whenever a vacancy in the number of executors (or trus-
tees) named by me in this will, shall occur, from the refusal or
failure of one to qualify, or for any other cause, then the re-
maining executors (or trustees) or executor (or trustee) shall
have power to appoint a suitable person or persons to fill said
vacancy, said appointment to be made by a written instrument
under seal, acknowledged, recorded, and filed with the proper
keeper of records in the county and said person or persons so:
appointed shall have the same powers as if they had been named
in this will.

(c) The following is deemed a proper power for the appoint-
ment of new trustees: Provided always, and it is hereby further

81 See ante, § 413. 82 See ante, § 413.
739 FORMS FOR PARTICULAR CLAUSES § 1101

declared, that if the trustees hereby appointed, or any of them,
or any future trustees or trustee hereof, shall die (either before
or after their or his acceptance of the trusts thereof), go to re-
side abroad, desire to be discharged from, renounce, decline, or
become incapable or unfit to act in the trusts of these presents,
while the same trusts or any of them shall be subsisting, then, and
in every or any such cases, and so often as the same shall happen,
it shall be lawful for the said (the cestuis que trust [if any] for
life), or the survivors of them, by any writing or writings, under
their, his, or her hands or hand, attested by two or more witnesses,
and after the decease of such survivor, then for the surviving or
continuing trustees or trustee hereof, or the executors or ad-
ministrators of the then last acting trustee (whether such sur-
viving trustees or trustee, or exectttors or administrators, respect-
ively, shall be willing to act in other respects or not), by any writ-
ing or writings, under their or his hands or hand, attested by two
or more witnesses, to nominate and substitute any person or per-
sons to be trustee or trustees hereof, in the place of the trustee
or trustees so dying, going to reside abroad, desiring to be dis-
charged, renouncing, declining, or becoming incapable or unfit
to act as aforesaid. And that, so often as any new trustee or
trustees hereof shall be appointed as aforesaid, all the heredita-
ments, etc., which shall, for the time being, be holden upon the
trusts hereof, shall be thereupon conveyed, assigned, and trans-
ferred, respectively, in such manner that the same may become
legally and effectually vested in the acting trustees hereof for
the time being, to and for the same uses, and upon the same
trusts, and with and subject to the same powers and provisions
as are herein declared, and contained of and concerning the same
hereditaments and premises respectively, or such of the same uses,
trusts, powers, and provisions as shall then be subsisting or in-
capable of taking effect.

And that every new trustee, to be from time to time appointed
as aforesaid, shall thenceforth be competent in all things to act in
the execution of the trusts hereof, as fully and effectually, and
with all the same powers and authorities to all purposes whatso-
ever, as if he had been originally appointed a trustee in the place
§ 1102 WILLS 740

of the trustee to whom he shall, whether immediately or other-
wise, succeed.

 

§ 1102. Appointment of literary executor.—I appoint
of my executor in respect only of all my letters, manuscripts,
and documents, and all copyrights and other rights and privileges
relating thereto hereinafter bequeathed to him.

 

§ 1103. Appointment of executor as to particular prop-
erty.**—-I appoint of to be the executor of this my
will in respect of my property in ;and I devise and bequeath
to him all such property real and personal upon trust, to sell, get
in, and convert the same into money, and to remit the proceeds
to my general executors hereinbefore appointed.

 

 

 

§ 1104. Delegation of power to appoint executor.*—I
do hereby constitute and appoint my two sons, E. and W. execu-
tors of this my last will and testament; and in event of the death
or resignation of either of my said executors, I do hereby direct
that his successor in said trust shall be appointed jointly by the
judge of probate of the district of Bridgeport and by the surviving
executor, and that all subsequent vacancies in said executorship
shall be filled in like manner.°*

§ 1105. Power of appointment of executor left to judge.—
I make no selection of an executor of this will, but leave it for
the judge of probate who may be acting when this will becomes
operative to make an appointment of some suitable person for that
purpose.*?

§ 1106. Appointment of guardian.**—(a) And I hereby
appoint my said wife and the said trustees guardians of my in-
fant children during their respective minorities,

(b) I appoint my said wife, and the trustees or trustee for the

33 Perry on Trusts (5th ed.), in a 36 Bishop v. Bishop, 56 Conn. 208,

note to § 288. 14 Atl. 808, 6 Am. Prob. 499.
34 See ante, § 410. 87 Brown v. Just, 118 Mich. 678, 77
85 See ante, § 410. N. W. 263, 4 Prob. Rep. Ann. 239.

38 See ante, § 412.
741 FORMS FOR PARTICULAR CLAUSES § 1107

time being of this my will, to be guardians of my infant children
during their respective minorities.

(c) appoint my wife, -——, sole guardian of the persons and
estates of my children during her widowhood ; and after the death
or marriage of my wife, I appoint the said executors and the sur-
vivors and survivor of them, or other the trustees or trustee for
the time being of my will, guardians or guardian of my children
during their respective minorities, and, in case of my wife’s mar-
riage, jointly with her during the remainder of her life.

(d) I have purposely appointed no guardian of my children
and , since my trustee is required under the prior pro-
visions of this will to care for their maintenance and education
from the income of the trust estate.

I trust, however, that my old friend
sel, oversight and advice.

 

 

 

 

will give them coun-

§ 1107. Appointment of an agent to manage and wind up
testator’s partnership business.—I specially appoint of
to act for me and in behalf of my estate in managing, clos-
ing, and winding up my partnership business and affairs; and I
empower him, in respect thereto, as fully.as I: may or can or am
authorized to do in and by the articles of copartnership of the
firm of & Co. Further, I authorize and direct the said A
while so acting in behalf of my estate, and in my place and stead,
to exercise a sound discretion in bringing my said partnership
affairs to a termination, and discharging all obligations connected
therewith, trusting to his judgment that he will so act in respect
thereto as to avoid, as far as can be avoided, any unnecessary loss
to those connected with me in business. For which service, and
as a mark of regard, I give to the said dollars.

 

 

 

 

 

 

-§ 1108. Appointment of trustees.*°°—As it is my desire
that only disinterested persons shall serve as trustees under this
will, and also that the number shall not fall below the number
fixed by me herein, I declare hereby that no person who is a hus-
band, wife, or relative or business associate of any beneficiary or
remainderman shall serve as trustee.

38 See ante, § 411.
§ 1109 WILLS 742

§ 1109. Filling vacancies in board of trustees.“°—(a) Each
of the trustees herein named shall have the power and right to
name and appoint his successor by last will and testament, and
such successor shall have the same powers as the one who ap-
pointed him. .

(b) Whenever, for any cause, whether by death, resignation,
or otherwise, the number of trustees of a trust created by this
will shall be less than three, then I authorize the remaining trus-
tee or trustees by deed to appoint a new trustee or trustees in
order to keep the number at three, and to execute whatever in-
struments may be necessary in order to vest the trust estate in
the new trustee or trustees jointly with the remaining one or ones.

§ 1110. Appointment of new trustees.—Provided always,
and I hereby declare, that if the said trustees hereby constituted,
or either of them, shall die in my lifetime, or if they or either of
them, or any trustee or trustees appointed as hereinafter pro-
vided, shall, after my death, die or desire to be discharged, or re-
fuse or become incapable.to act, then and in every such case it
shall be lawful for the said —— and , or the survivor of
them, and after the death of such survivor for the surviving or
continuing trustees or trustee for the time being, or for the acting
executors or executor, administrators or administrator, of the last
surviving or continuing trustee, to appoint a new trustee or new
trustees in the place of the trustee or trustees so dying or desiring
to be discharged, or refusing or becoming incapable to act as
aforesaid; and upon every or any such appointment as afore-
said, the number of trustees may be augmented or reduced;
and upon every stich appointment the trust property shall, so far
as the nature of the property or other circumstances shall require
or admit, be transferred so that the same may be vested in the
trustees or trustee for the time being. And every trustee so ap-
pointed as aforesaid may, as well before as after such transfer
of the said trust property, act or assist in the execution of the
trusts and powers of this my will, as fully and effectually as if I
had hereby constituted him a trustee.

 

40 See ante, § 413.
743 FORMS FOR PARTICULAR CLAUSES § 1111

$1111. Codicil appointing an executor and trustee in
place of an executor or trustee who has died.**—I,
of , declare this to be a first codicil to my will which bears
date the day of —-.

Whereas, by my said will I appointed my son, , to be an
executor and trustee thereof together with my brother

And, whereas, my said son died on the —— day of » with-
out issue him surviving ;

Now I hereby revoke the appointment of my said son as execu-
tor and trustee of my said will and appoint my friend of
to be executor and trustee in place of my said son, and I de-
clare that my said will shall be construed as if the name of the
said were substituted therein as an executor and trustee
thereof for the name of my said son.

I hereby revoke the bequest of a share of my residuary estate
to my said son, and direct that the same shall go as an accretion
to the shares of my other children in the proportions in which
they are entitled to share in my residuary estate in my said will.

I hereby confirm my said will in all other respects.

In witness, etc.

(Signature of testator and signature of witnesses. )

 

 

 

 

 

 

 

 

 

§ 1112. Codicil appointing an executor and trustee in
place of a son named in will who has died, and revocation of
bequest to son.—I, of , declare this to be a first
codicil to my will which dated the day of ,

Whereas, by my said will I appointed my son to be execu-
tor and trustee thereof together with my brother;

And, whereas, by my said will I directed my trustees to stand
possessed of one-fifth of my residuary estate in trust for my said
son absolutely, and whereas my said son died on the day of
without leaving any issue him surviving;

1. Now, I hereby revoke the appointment of my said son as
executor and trustee of my said will and appoint my friend
of to be executor and trustee thereof in place of my said
son, and I declare that my said will shall be construed as if the

 

 

 

 

 

 

 

 

 

 

41 See ante, § 32.
§ 1113 WILLS 744

name of the said (new trustee) were substituted therein
as an executor and trustee thereof for the name of my said son
and I bequeath to the said (new trustee) a legacy of
dollars if he accepts saic trusteeship.

2. I hereby revoke the bequest of the said one-fifth share of
my residuary estate and I direct my trustees to hold the same
in trust for my children other than my said son as an accretion
to their respective shares and upon the trusts in my said will de-
clared of such shares and in the proportions in which they are
entitled to share in my residuary estate under the trusts in my
said will contained.

3. Inall other respects I confirm my said will. In witness, etc.

(Signatures of testator and of witnesses. )

 

 

 

$1113. Appointment of a new trustee as provided for by
will.—Indenture made the day of , between ;
surviving trustee under the will of , late of , dated the

 

 

 

 

 

 

 

 

 

day of , and duly proved in the probate court for the
county of - in the state of
Whereas , one of the trustees natned in the will of said de-

 

ceased has lately died, and it was provided by the terms of said
will that upon the death of a trustee the surviving trustee should
nominate a new trustee to act in place of the deceased trustee,
and said probate court has acted upon said nomination and has
appointed of , to be trustee in place of said deceased
trustee, jointly with the said (continuing trustee) ;

And, whereas, it was the intention of the testator, that upon
the appointment of a new trustee the trust property should be
held jointly in the names of both trustees, the said (surviv-
ing trustee) hereby declares that the estate and interest now
vested in him in the lands subject to the trusts of the said will
and in any chattels so subject, and the right to recover and re-
ceive any debts or things in action, so subject shall vest in the
said (surviving trustee) and (new trustee) as joint
tenants, upon the trusts by the said will declared.

In witness, etc.

Schedule of investments and trust property.

(Signatures and seals of all parties. )

 

 

 

 

 

 
745 FORMS FOR PARTICULAR CLAUSES § 1114

§ 1114. Termination of trust on death, etc., of trustee.*?—
In order to guard against the appointment of an undesirable trus-
tee, I direct that in the case of the death, disability or resignation
of a trustee, as herein appointed, then the trust shall vest in and
be executed by the surviving or remaining trustees, and upon the
death of the last of the acting trustees by me appointed in this
will, then the entire trust fund shall be paid to the beneficiaries
entitled to the income.

§ 1115. Liability of executors and trustees.“—(a) It is
my will that each of the executors and trustees under this will
shall be liable only for his own fraudulent acts, misconduct, or
negligence, and not for the acts of any other executors or execu-
tor, trustees or trustee, in which he did not participate.

(b) I desire that my executors shall not be answerable for any
of their acts with respect to my estate while it is in their hands.

(c) My executors shall not be liable for any loss to my estate
occasioned by their acts in good faith, and shall in any event be
liable only for their own neglect, default or misfeasance, and not
for honest errors of judgment.

§ 1116. Compensation of trustees.“*—I direct that my
trustee shall have liberal compensation for his services, to be
awarded by the probate court.

I direct that my trustee shall not only receive compensation for
his services as such, but in addition shall be paid for any serv-
ices rendered as attorney to my estate.

§ 1117. Provision for services to estate—I hereby re-
quest and desire W. J. H., who has attended to my business,
keeping my books and accounts, to continue to take charge of and
keep the accounts of my estate for my executor and trustee, and
in any way he can to assist in the settlement of my estate, so long
as his services may be necessary, and for such services I allow
him a salary of fifteen hundred dollars per year, to be paid to him
by my executor in monthly instalments.*°

42 See ante, § 358. 45 Harker v. Smith, 41 Ohio St.
43 See ante, §§ 415, 416. 236, 52 Am. Rep. 80, 4 Am. Prob.
44 See ante, § 422. 525.
§ 1118 746

WILLS

§ 1118. Compensation of executors.*“—(a) I direct that
the executors and trustees under this will shall receive no com-
pensation for their services.

(b) I direct that my executors shall receive in full compensa-
tion for their services, an amount equal to three per cent. of the
appraised value of personal property of my estate, and five per
cent. on all income collected by them while they are in charge of
my estate, the said amount to be divided equally between them.

(c) As the greater burden of settling and managing my estate
will fall upon my friend , whom I have named executor be-
cause of his business experience, and will not fall on my wife,
also named executor, I desire that two-thirds of the compensation
allowed by the court to the executors shall go to and one-
third to my wife, and request a liberal allowance to be made.

 

 

ARTICLE 20. MISCELLANEOUS PRovIsiIons**

SECTION

1119, Declaration of domicil.

1120. Request to executors as to cre-
mation.

Naming children.

Excluding children.

Inequalities as to children or
their issue.

Disinheriting children.

Exclusion of certain persons.

Exclusion of adopted children.

Devise of farm to son’s wife
and children as joint tenants,
and exclusion of son from
inheritance.

Omission of one son.

Disinheriting granddaughter.

Exclusion of son from share in
residuary estate.

Antenuptial agreement recog-
nized.

Direction as
property.

1121.
1122.
1123.

1124,
1125.
1126.
1127.

1128.
1129,
1130.

1131.

1132. to division of

 

46 See ante, § 422,

SECTION

1133. Direction for conversion.

1134. Equitable conversion.

1135. Advancements to be treated as
gifts.

1136. Declaration that sums  ad-
vanced shall be regarded as
gifts.

1137. Advancements to children to be
pro tanto in satisfaction of
their shares.

1138. Advancements in testator’s life-
time to be brought into ac-
count.

1139. Advancement not to be in sat-
isfaction of portions.

1140. Taxes.

1141, Inheritance tax.

1142. Interpretation clauses.

1143. Incorporation of paper in will
by reference.

47 See ante, ch. 22.
747 FORMS FOR PARTICULAR CLAUSES § 1119

§ 1119. Declaration of domicil.“—(a) I hereby declare
that the application of this will is expressly limited to estates real
and personal within the United States of America.

(b) Iam a natural born American citizen and I declare that
I have adopted and acquired and hereby adopt and acquire and
intend to retain the state of as my domicil.

(c) I hereby declare that this my last will and testament shall
not extend to any property owned by me in England or in the
Dominion of Canada, and also declare that the revocation herein-
after expressed of former wills, shall not extend to any former
wills made by me disposing of my property in England or in the
Dominion of Canada, and I limit the application of this present
will to my property in the United States of America.

 

§ 1120. Request to executors as to cremation.“°—(a) I
desire that my body be cremated and the ashes deposited in my
vault in the cemetery (or placed in my burial lot in said
cemetery).

(b) I desire that my body shall be cremated, and I direct that
my executors shall, in order to pay the expenses of such crema-
tion, use a sum of money from my estate not to exceed five hun-
dred dollars.

§ 1121. Naming children—(a) A. B., P. Q., R.S., T. U.,
and V. X., whom I have named in this will are the only children
and issue of mine now living.

(b) I give to my only living children V. X. and Y. Z., the sum
dollars each.

(c) I declare that at the date of the execution of this instru-
ment my wife A. B. and my son C. X. are living; that I have no
living children besides this last mentioned son, and no grand-
children representing a deceased child excepting X. Y. and Z. V.,
the minor children of my deceased son U. V.

 

of

 

§ 1122. Excluding children.°—(a) I mention the names
of my children, ; , and , to show that I have not

 

 

 

48 See ante, ch. 3. 50 See ante, § 431.
49 See ante, § 430.
§ 1123 WILLS 748

forgotten them, and that I have purposely given them no legacies
in this will.

(b) I have purposely given no interest in my estate to my son
A. B. and my daughter C. D., and I exclude them and their issue
from any claim on my estate of any kind or nature.

(c) I purposely exclude from any interest in my estate C. D.,
my only living child, and H. I. and J. K., the only living children
of my deceased daughter L. M., and N. O., the only child of my
deceased son P. Q.

(d) I give to , my son, the sum of one dollar, and no
more, for the money which I have already given to him is equiv-
alent to his share of my estate.

(e) I give to my children , and - , ten dollars each,
and no more, for I have confidence that their mother will care
for them from her share of my property.

 

 

 

§ 1123. Inequalities as to children or their issue—(a) I
have given my daughter a larger legacy than I gave my
son ——, for the reason that I have formerly paid out and ex-
pended a large amount of money for him, and have not pre-
viously expended for my daughter an equivalent amount.

(b) Iam giving to my daughter less than my other chil-
dren, for the reason that I have in my lifetime made a gift to her
of my residence.

(c) Although I have not given to my daughter as large
a legacy as I have given to my sons and , the reason for
this is not that I have less affection for her, but that her circum-
stances, by reason of her marriage, are such that-she does not need
as much money as is: required by my sons. Having confidence
in her good judgment and sense of justice I trust that she will
be satisfied with the provision for her.

(d) I declare that my reasons for giving less to my daughter
than to my other children are ample and sufficient, and if
said daughter shall in any way oppose or contest in any court
the probate or validity of this will, then the said shall forfeit
all her interest, right and title to the provision made for her by
this will, and the legacy given to her shall go in equal propor-
tions to my other children.

 

 

 

 

 

 

 

 
749, FORMS FOR PARTICULAR CLAUSES § 1124

 

 

(e) Lam giving to my grandchildren , and , only the

sum of - dollars, which is less than the sum given to my other
grandchildren. The reason for this that during the lifetime of
——, the mother of ——, and , | gave to her and expended
for her more money than I did for any other of my children;
(or) because at the time of the marriage of their mother, ;
I gave to her the sum of -—, and I did not give to my other
children so large an amount.

 

 

 

 

§ 1124, Disinheriting children.**—I have made no provi-
sion in my will for —-—, the only child of my present wife, for
I have given his mother one-fourth of my entire estate, which I
assume she will leave to him, and if she does so, he will receive
a much larger amount than any of his half-brothers and sisters,
the children of my first wife, wiil receive from my estate. This
disposition is not made from a spirit of favoritism, but from a
sense of what is fair to all my children.

$1125. Exclusion of certain persons.—I bequeath to my
son — five thousand dollars. If he should die before I do,
then such legacy is to go to his issue, if such there be, other than
the issue from his present wife, If there are no such issue,
the said legacy shall revert to the residue of my estate.

 

 

§ 1126. Exclusion of adopted children.—Wherever I have
used the words issue or children in this will, it is my intention to
limit themr to issue or children by birth and blood, and to ex-
clude children by adoption.

§ 1127. Devise of farm to son’s wife and children as joint
tenants, and exclusion of son from inheritance.—I bequeath
to my son T. the sum of one dollar, and to A. A., the wife of my
son T., and her children, I devise the Fisher farm.

§ 1128. Omission of one son.—I do not make any provi-
sion for my son F. W. B., now known as “Brother Ferdinand,”
who is a member of St. Xavier and Brothers at Baltimore, Md.
I do this for the reason that he is well provided for.

51See ante, § 431; Deppen v. Dep- pen, 132 Ky. 755, 117 S. W. 352, 14
Prob. Rep. Ann. 348,
§ 1129 WILLS 750:

§ 1129. Disinheriting granddaughter.—It may be noted
that I have omitted in this paper all reference to the name of my
granddaughter, L. G., who has recently married one A. L. This.
I have purposely done, not intending her to have any part of my
estate.°?

§ 1130. Exclusion of son from share in residuary estate.—
As I have previously given to my son , an amount equal to
the amount which he would take under the inheritance laws of
this state, if I died intestate, I have made no provision for him
in this will.

 

§ 1131. Ante-nuptial agreement recognized.**—(a) Where-
as, by an ante-nuptial agreement of the date of, etc., I relin-
quished all my interest in the estate of my wife and she
relinquished all her interest in my estate, I hereby ratify said
ante-nuptial agreement in all respects, and declare that it is my
intention that she shall not be a devisee or legatee under this
will.

(b) I direct my executors to pay to my wife the sum of
dollars, in performance of an ante-nuptial agreement en-
tered into by us on day of , this payment to be in lieu of
dower, and all widow’s rights of whatever character in my real
and personal estate.

 

 

 

 

 

§ 1132. Direction as to division of property.—(a) To
my children, J. A. and M. A., I will, devise and bequeath the
west half of the northwest quarter of section twenty-seven, in
township ten north, range seven east, in equal shares, to be in
full of their portions of my estate, both real and personal, to
be theirs, their heirs’ and assigns’ forever.**

(b) I hereby give, devise and bequeath to my seven children
and legal heirs (naming them), all my property, real and per-
sonal, and mixed, wherever situated, not already disposed of,

52 Simpson v. Adams, 127 Ky. 790, 54 Dickison v. Dickison, 138 Ilfl. 541,
106 S. W. 819, 13 Prob. Rep. Ann. 28 N. E. 792, 32 Am. St. 163, 8 Am.
458. Prob. 92.

53 See ante, § 6.
751 FORMS FOR PARTICULAR CLAUSES § 1133

which I now own or may hereafter acquire, and of which I may
die seised and possessed, absolutely and in fee simple, and in
equal shares. The division shall be made by three commissioners,
to be appointed by my said children, and the lots and parcels of
land so divided shall be drawn for by them and any difference in
the valuation be settled among themselves.

§ 1133. Direction for conversion.—After the decease of
my wife, J. R., I hereby direct my executors to sell all the bal-
ance of my ranch and the proceeds thereof to be equally divided
share and share alike between my sons, J. F. R., W. I. R., S. H.
Rand iL. B. R.*

§ 1134. Equitable conversion.—(a) After my own and
my wife’s decease, it is my will that my executor shall dispose
of all my property, real, personal and mixed, without applica-
tion to the Orphans’ Court; and I hereby authorize my said ex-
ecutor to make legal deeds to suit purchasers of any of my real
estate, provided, nevertheless, that they shall publish in two
daily newspapers one month, daily showing the time and place
where the same is to be disposed of, which shall be at public auc-
tion; but my executor shall not be bound to make such advertise-
ment or sale if all the legal heirs or their legal representatives
shall agree to a division of said estate among themselves.*”

(b) After the payment of my debts and funeral expenses, I
give and devise to my wife, A. L., all those tracts or parcels of
land described as (here follows description) to have and to hold,
together with the rents and profits thereof, during her natural
life, and at her death the above described lands shall be sold
and the proceeds thereof shall be divided as follows between my
heirs, to wit: To my daughter E. J. L. I give the sum of one
thousand dollars. To my son J. A. L. I give the sum of one
thousand dollars. The balance of the proceeds of the sale of the

55 Frank v. Frank, 120 Tenn. 569, 265, 76 Pac. 1020, 101 Am. St. 118, 9
111 S. W. 1119, 14 Prob. Rep. Ann. Prob. Rep. Ann. 145.
322. 57 Jones v. Caldwell, 97 Pa. St. 42,
56 Bank of Ukiah v. Rice, 143 Cal. 2 Am. Prob. 154.
§ 1135 WILLS 752

foregoing described lands shall be divided equally between my
six children, to wit (naming them) .°*

(c) After my own and wife’s decease, it is my will that my
executor shall dispose of all my property, real, personal and
mixed, without application to the Orphans’ Court; and I hereby
authorize my said executor to make legal deeds to suit pur-
chasers of any of my real estate, provided, nevertheless, that
he shall publish in two daily newspapers one month, daily show-
ing the time and place where the same is to be disposed of, which
shall be at public auction.*®’

(d) I hereby declare that all the real estate which I have em-
powered my executor to sell, shall be considered as converted
into personalty as of the time of my decease, and all rents, profits
and income therefrom after that time until sale shall be a part
of my personal estate.

§ 1135. Advancements to be treated as gifts.°—I have
made advances to my said children which are charged to them
‘respectively on my books, and I may make further advances to
them respectively, or to some of them, and to my said grandson,
which may be charged on my books to their respective accounts. I
desire the equal provision, herein made for said children, and
the provision for said grandson, to be a provision for them re-
spectively, in addition to said advances made, and that may here-
after be made, and that in the division, distribution and settle-
ment of my said estate said advances made and that may hereafter
be made, be treated, not as advancements, but as gifts not in
any manner to be accounted for by my said children and grand-
son, or any of them, or the issue of any of them.

§ 1136. Declaration that sums advanced shall be regarded
as gifts.°—I declare that all sums at any time advanced or
paid by me to or on account of my son shall be regarded

 

58 Lash v. Lash, 209 Ill. 595, 70 N. 61 Adams y. Cowen, 177 U. S. 471,

E. 1049, 9 Prob. Rep. Ann. 535, 20 Sup. Ct. 668, 44 L. ed. 851, 5 Prob.
59 Jones v. Caldwell, 97 Pa. St. 42, Rep. Ann. 572.
2 Am. Prob. 154. 62 See ante, § 433,

60 See ante, § 433.
753 FORMS FOR PARTICULAR CLAUSES § 1137

and taken as gifts from me, although I may hold his obligations
to pay the same, and that nothing shall be claimed.as due or ow-
ing to me from my said son, and that no claim shall be made
against him nor his estate in respect thereof.

§ 1137. Advancements to children to be pro tanto in satis-
faction of their shares.*—Provided always, and I hereby de-
clare, that if I shall in my lifetime advance or give to any of
my said children any sum or sums of money on his or her mar-
riage, or otherwise for his or her advancement or benefit, then,
unless I shall in writing direct the contrary, every such sum shall
be taken in or toward satisfaction of the provision intended to
be hereby made for such child (or of the legacy hereinbefore
given to such child), and shall be accounted for accordingly.

§ 1138. Advancements in testator’s lifetime to be brought
into account.—(a) Provided always, that money, land, or
other property advanced or settled by me in my lifetime to or for
the benefit of any child or grandchild of mine, shall be reckoned
as if the same were part of my residuary estate, and as a satis-
faction to that extent of the portion or portions hereby given to
such child, or his or her issue, or such grandchild, unless I shall
have otherwise declared by writing under my hand.

(b) I direct that such sums of money as I have or shall have
applied for the benefit of any of my children or grandchildren,
to the amount at any one time of dollars or more, shall be
taken in part satisfaction of the legacies hereby provided for him,
her or them.

 

§ 1139. Advancement not to be in satisfaction of por-
tions.—I declare that such advancements as I may make to
any of my children shall be in addition to, and not in satisfaction
of, any legacy or legacies, portion, portions, or other benefit,
given to him, her or them by my will.

§ 1140. Taxes.“*—(a) I direct that all inheritance, legacy
ind succession and other taxes shall be paid out of the general

63 See ante, § 433. 64 See ante, § 15,

48—Tuomp. WILLS.
§ 1141 WILLS 754

funds of my estate, and that all devises and legacies, general or
specific, given under this will, shall be exempt from the payment
of such taxes.

(b) The legacies and devises given by this will shall be sub-
ject to the payment therefrom of the inheritance, legacy or suc-
cession taxes imposed by law, and such taxes shall not be paid
out of my general estate.

§ 1141. Inheritance tax.°—I direct that the inheritance
tax on the legacy of dollars given hereinbefore to
shall be paid out of the general funds of my estate (or shall be
paid out of said legacy and deducted therefrom).

 

 

§ 1142. Interpretation clauses.°—(a) I declare that in
the interpretation of this my will the expression “my trustees”
shall (where the context permits) mean and include the trustees
for the time being hereof, whether original or substituted.

(b) I declare that the provisions herein made for my wife and
children are in addition to, and not in substitution for, the pro-
visions in their favor contained in my marriage settlement, dated
the day of ‘

 

 

§ 1143. Incorporation of paper in will by reference.“—
revoke that part of my will which gives directions for the pay-
ment of my legacies, and order and direct my executors or the
survivor of them to pay the several legacies mentioned in my
wills and codicils, as near as possibly convenient, according to
the directions written in a book by M. W. P., signed by me, A. D.
W., and witnessed by said M. W. P.°%

ArTICLE 21. ATTESTATION AND TESTIMONIUM CLAUSES”

SECTION SECTION
1144. Attestation clauses. 1146. Alteration clause.
1145. Testimonium clauses. 1147. Alterations and additions.
65 See ante, § 15. ciety, 130 Mass. $1, 39 Am. Rep. 433,
66 See ante, § 432. 2 Am. Prob. 18.
87 See ante, § 152. 69 See ante, ch. 23.

68 Newton v. Seaman’s Friend So-
755 FORMS FOR PARTICULAR CLAUSES § 1144

§ 1144. Attestation clauses."-—(a) Signed by said tes-
tator, , as his last will, in the presence of us, who, at his re-
quest and in his presence, and in the presence of each other, have
hereunto subscribed our names as witnesses.

(b) Signed by the said testator in the presence of us, who, in
his presence, and that of each other at the same time, have here-
unto subscribed our names as witnesses.

(c) Signed, sealed, published, and declared by said testator,

, as and for his last will and testament, in the presence of us,
who, at his request, in his presence, and in the presence of each
other, have hereunto subscribed our names as witnesses this
day of , 19—,

(d) Signed by the said —— as his last will, the same first hav-
ing been read over to him in our presence, with his mark, in the
presence of us, present at the same time, who, in his presence, and
at his request, and in the presence of each other, have hereunto
subscribed our names as witnesses.

(e) Signed by the said testator by the hand of , by his
direction and in his presence, as the last will of the said testator,
in the presence of us, etc., as above.

'(f) The above written instrument consisting of ten pages,
was signed and sealed by in our presence on the day it bears
date, at the city of . and he stated, published and declared to
us then and there that such instrument was his last will and testa-
ment, and thereupon at his request, in the presence of him and of
each other-we signed our names to said instrument as attesting
witnesses.

(g) Signed, sealed, published and declared by the said W. S.
B. to be his last will and testament, in the presence of us who at
his request and in his presence do subscribe our names as wit-
nesses thereto.”

 

 

 

 

 

 

 

§ 1145. Testimonium clauses.—(a) In testimony whereof

 

 

I, ——, have hereunto set my hand this day of , 19—.
(b) In testimony whereof I, the said ——, have set my hand
70 See ante, § 447. 25, 59 S. E. 163, 125 Am. St. 466, 13

71In re Baldwin’s Will, 146 N. Car. Prob. Rep. Ann. 262.
§ 1145 WILLS 756

 

and seal to this my will, contained in sheets of paper, upon
each of which I have also written my name, at , in the state
of , this day of , 19—.

(c) In witness of this will contained in seven sheets, I have
hereunto subscribed my name and affixed my seal at - street,
in the city of , this day of , in the year , and
have put my initials on each preceding page, all in ‘the presence
of ‘ , and , whom I have requested to become
witnesses attesting hereto.

 

 

 

 

 

 

 

 

 

 

 

 

§ 1146. Alteration clause.”—If there be any alterations,
interlineations, or erasures in the instrument, they should be
noted here at the end of the attestation clause and before the sig-
natures of the witnesses, as for instance :—

The interlineation between the and
page, and the alteration in the line of the page having
been previously made (or the words “ ”” having been pre-
viously interlined, or having been previously written over an
erasure between the and lines of the page).

lines of the

 

 

 

 

 

 

 

 

 

§ 1147. Alterations and additions.—‘“In witness whereof
I have hereunto set my hand and seal, including the words, ‘and
to my niece Julia Fain’ erased, and the words ‘personal,’ ‘and de-
livered,’ ‘one hundred,’ ‘interest,’ ‘one,’ ‘life,’ ‘Henry,’ “and
daughter,’ ‘located in,’ ‘legal,’ ‘equally,’ added, this fifteenth day
of December in the year of our Lord one thousand eight hundred
and ninety-six.””

ARTICLE 22. Copicris™

SECTION SECTION

1148. Codicil reviving will revoked 1151. Codicil bequeathing legacy
by testator’s marriage and lapsed by legatee’s death to
providing for wife. her children living at testa-

1149, Codicil made after remarriage. tor’s decease, payable at age

1150. Codicil providing for birth of of twenty-one years.
child.

72 See ante, § 452. E. 536, 75 Am. St. 86, 5 Prob. Rep.

73 Eldred v. Meek, 183 Ill. 26,55 N. Ann. 128.
74 See ante, § 32.
757 FORMS FOR PARTICULAR CLAUSES § 1148
SECTION SECTION
1152. Codicil devising real estate con- 1159. Codicil revoking an item.

tracted to be purchased sub-
sequently to execution of
will.

1160. Codicil revoking a former will
previously revoked.
1161. Codicil directing which of two

1153. Codicil devising land purchased prior wills shall take effect.
since execution of will. ¢ 1162. Codicil revoking bequests to
1154. Codicil making substituted and trustee and appointment of
additional bequests. executors, and substituting
1155. Codicil reducing legacy by trust company as trustee and
amount of advances made to executor.
legatee. 1163. Codicil appointing two new
1156. Codicil substituting children of trustees in the place of a de-
son who has died. ceased and a retiring trustee.
1157. Codicil revoking bequest. 1164. Alteration of will by erasure
1158. Codicil revoking a will in the. and interlineation.

possession of a third party.

§ 1148. Codicil reviving will revoked by testator’s mar-
riage, and providing for wife.”—I, of , do hereby
declare this present writing to be a codicil to my last will and tes-
tament, bearing date the day of ;

Whereas subsequently to the date and execution of my said will
I have intermarried with , my present wife:”° Now I do
hereby declare that my said will shall operate, enure, and be, as
to all persons and things, and devises and bequests, therein con-
tained, as if I now made and published the same on this day
of , in the year , except so far as the same is changed
hereby. And I do hereby give and bequeath unto my said wife
the sum of dollars, in addition to the provision made for
her by the deed of settlement made upon our marriage. I also
give and devise unto my said wife all my dwelling-house, situate,
etc., with the garden and appurtenances thereunto belonging, to
the use of my said wife, her heirs and assigns, forever; and I
also bequeath to her all the fixtures, household furniture, plate,
linen, china, glass, books, pictures, fuel, and housekeeping pro-
visions, and all other movable effects which shall be in or about
my said dwelling-house at the time of my decease. And I do

 

 

 

 

 

 

 

 

 

Now I do hereby revive and confirm
In witness, etc.

75 See ante, § 463.
76 Tf it is desired simply to confirm my said will.
the will, add only the following :—
§ 1149 WILLS , 758

hereby ratify and confirm my said will in every other respect. In
witness, etc.

$1149. Codicil made after remarriage.—I, N. W., of Mil-
ton Junction, Wisconsin, a clergyman, do make this my codicil,
hereby confirming my last will made on the day of ,
1885, and my former codicil made January 3, 1888, so far as
this codicil is consistent therewith, and do hereby state: First,
nry former wife, O. B. W., having died since the date of my said
will and I having taken another wife, I am impressed with the
importance of changing my will by adding to said will another
codicil. All reference made in said will to said O. B. W. I hereby
withdraw. And the name of my present wife is M. H. W., and
she shall have all that remains of the property of which I shall
die seised, and after paying my son, M. S. W., and the grand-
children, as specified in said will, is to use, dispose of and con-
trol according to her own judgment during her natural life, and
if she shall have children by me, they shall have at their majority,
or the survivors of them, the same amount, each, as is bequeathed
to my son, M. S. W., as estimated by three competent, disinter-
ested judges, to be appointed by the judges of probate before
whose court my will shall be proven. At the decease of my said
wife, M. H. W., all that remains after paying the legacies made
to my children and grandchildren shall be divided among the
three societies as named in my will.”

 

 

§ 1150. Codicil providing for birth of child.—In case of
the birth of a child born to me by my said wife, then this my last
will and testament shall remain in full force and virtue until
the said child shall arrive at the age of twenty-one years, then and
in such case, I direct that in case my said wife shall be living and
my widow, the said property to be divided into three shares, one
of which shall be given to my said wife and the other two equal
shares to be given to my said child, and in case of the death of
my said wife or her marriage before the said child shall arrive

77 Wardner v. Seventh Day Baptist E. 1077, 122 Am. St. 138, 13 Prob.
Memorial Board, 232 Ill. 606, 83 N. Rep. Ann. 394,
799 FORMS FOR PARTICULAR CLAUSES § 1151

at the age of twenty-one years, then the whole of said property
to go to my said child; but in case of the death or marriage of
my said wife before my child shall arrive at the age of twenty-one
years, and the said child shall not live until that age, but shall
survive his mother, then, and in that case, the said property shall
be divided in manner hereinbefore specified between my brother
and two sisters or their survivor or survivors.”

§ 1151. Codicil bequeathing legacy lapsed by legatee’s
death to her children living at testator’s decease, payable at
age of twenty-one years.—I, of , do hereby declare
this present writing to be a codicil to my last will and testament,
bearing date the day of :

Whereas by the said will I gave and bequeathed unto my niece
the sum of dollars; and whereas my said niece
has since departed this life, by means whereof her said legacy has
become lapsed; Now I do hereby give and bequeath the said sum
so bequeathed to my said niece , as aforesaid, to and
amongst such of her children as shall be living at the time of my
decease, equally to be divided between them, the share or respec-
tive shares of such child or children to be paid, assigned, and
transferred to them when they shall respectively attain the age
of twenty-one years; and I direct that the interest of the said
sum shall, during such suspense of payment, be applied by my
executors toward the maintenance and education, or otherwise
for the benefit, of such children respectively. And I do hereby
ratify and confirm my said will in all other respects. In witness,
etc.

 

 

 

 

 

 

 

 

§ 1152. Codicil devising real estate contracted to be pur-
chased subsequently to execution of will—1. I, of ;
do hereby declare this present writing to be a codicil to my last
will and testament, bearing date on or about the day of
——, a. dD. 19—.

2. Whereas subsequently to the date and execution of my said
will I have contracted for the purchase of all that parcel of land,

 

 

 

78 Herriott v. Prime, 155 N. Y. 5,49 N. E. 142, 3 Prob. Rep. Ann. 172,
§ 1153 : WILLS 760

 

with the buildings thereon, situate, etc., at the price of dol-
lars; all which said premises are intended to be shortly conveyed
unto me:

3. Now I do hereby give and devise all and singular the said
described land and buildings so contracted to be purchased by me,
as aforesaid, unto and to , his heirs and assigns, absolutely,
forever.

4. If the said contract shall be rescinded either because the
vendor is unable to make a good and clear title to the said prem-
ises, or for any other cause whatever, then I do hereby further
direct and declare that my said executors shall apply the intended
purchase money or sum of dollars in the purchase of such
other lands and buildings as the said devisee, his heirs or assigns,
shall by writing under his or their hands direct or appoint ; which
said premises so to be purchased shall be conveyed to the said dev-
isee, his heirs and assigns, or to such uses as he or they shall
direct or appoint.

5. And in the mean time, and until an eligible purchase can
be found, I do hereby direct my said executors to pay interest
on the said intended purchase money or sum of dollars, at
the rate of per cent. per annum, unto the said devisee, his
heirs and assigns, to and for his and their own use and benefit.

6. I do hereby ratify and confirm my said will in every other
respect.

In witness whereof I, the said , have to this my codicil set
my hand and seal this day of , A.D. 19—.

 

 

 

 

 

 

 

§ 1153. Codicil devising land purchased since execution
of will.—I, of , do hereby declare the present writ-
ing to be a codicil to my last will and testament, bearing date on
or about the day of , A.D. 19—.

1. Whereas I have since the date and execution of my said
will purchased all that parcel of land situate, etc., all which said
premises have been duly conveyed to me and my heirs in fee sim-
ple: :

' 2. Now I do hereby give and devise the said parcel of land
unto and to , his heirs and assigns, absolutely and forever.

 

 

 

 

 
761 FORMS FOR PARTICULAR CLAUSES § 1154

3. Ido hereby ratify and confirm my said will in every other

 

respect.
In witness whereof I, the said , have to this my codicil set
my hand and seal this day of , A.D. 19—.

 

 

§ 1154. Codicil making substituted and additional be-
quests:—I, of , do hereby declare the present writ-
ing to be a codicil to my last will and testament bearing date on
or about the day of , A.D. 19—.

1. Whereas by my said will I gave and bequeathed unto
the sum of dollars, now I do hereby revoke the said legacy,
and do give and bequeath unto the said legatee in lieu thereof the
sum of - dollars and no more.

2. And whereas by my said will I had also given unto my dear
wife the sum of dollars, now I do hereby give and bequeath
unto my said wife the further sum of dollars, in addition to
the said sum of dollars so bequeathed to her as aforesaid,
which said two sums, making together the sum of dollars, I
direct my executors to pay to her within calendar months
next after my decease.

3. Whereas in my said will I gave unto of the sum
of dollars in four per cent. bonds of the city of , which
bonds I have since sold; in lieu of such bequest thereof as afore-
said, I do hereby give and bequeath unto the said legatee the sum
of dollars, which I intend him to take in full satisfaction for
the said sum of dollars in said bonds.

4. Whereas by my said will I directed my trustees therein
named by and out of the dividends and annual produce of my
trust moneys, stocks, funds, and securities therein mentioned, to
pay unto my dear wife during her widowhood the sum of
dollars, payable unto her by four equal quarterly payments in
manner therein mentioned :

5. Now I do hereby revoke the bequest of the said annuity,
and in lieu thereof I do hereby give and bequeath unto my said
wife the sum of dollars for her absolute use, which I do
hereby declare shall be taken by her in lieu and satisfaction of the
aforesaid annuity, and also of all dower in my real estate to

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
§ 1155 ‘WILLS 762

which she may be entitled as my widow by common law, custom,
or otherwise howsoever. And I do hereby ratify and confirm
my said will in all other respects. In witness, etc.

§ 1155. Codicil reducing legacy by amount of advances
made to legatee.—I, of , declare this to be a codicil
to my will, dated the day of , 19—. Whereas by my
said will I have bequeathed to my son the sum of dol-
lars; and whereas, since the date and execution of my said will,
I have at various times advanced and paid to my said son
several sums of money, amounting in the aggregate to the sum
of dollars, for the purpose of enabling him to establish him-
self in business: Now I hereby declare that the said aggregate
sum of dollars shall be taken to have been and to be in part
payment of the said legacy of —— dollars, and that the said
legacy of dollars shal!, to the extent of the said sum of
dollars so advanced as aforesaid, but not further or otherwise,
be considered to have been satisfied. And in all other respects
I confirm my said will. In witness, etc.

 

 

 

 

 

 

 

 

 

 

 

 

§ 1156. Codicil substituting children of son, who has

 

 

 

 

 

 

 

 

died.—I, of , hereby declare this to be a codicil to
my will, which bears date the day of Whereas my
son died on the day of , leaving children:

Now I hereby declare that such of the children of my said son
as shall survive me, and being male attain the age of twenty-
one years, or being female attain that age or marry, shall take by
substitution, as tenants in common, in equal shares if more than
one, the share in my residuary estate which my said son would
have taken had he survived me. And in all other respects I con-
firm my said will. In witness, etc.

 

§ 1157. Codicil revoking bequest.—I hereby revoke the
bequest made by me to the Home for Incurables, and I hereby
give the five thousand dollars (heretofore in my will bequeathed
to said Home for Incurables) to E. C., said bequest being on ac-
763 FORMS FOR PARTICULAR CLAUSES § 1158

count of her kindness to my son and myself during his and my ill-
ness and my distress.”°

§ 1158. Codicil revoking a will in the possession of a third
party.°—(a) I, of , hereby revoke an instrument
bearing date the day of , 19—, and purporting to be
my last will, which instrument I have deposited with of

 

 

 

 

 

 

In witness, etc.

 

 

 

 

 

 

(b) Whereas I, of » have duly made my last will,
dated the day of , which I delivered into the custody of
of , in whose possession I believe it still remains: Now

I do hereby utterly revoke and make void my said will, and every
devise, bequest, clause, matter, and thing whatsoever therein
made and contained. In witness, etc.

§ 1159. Codicil revoking an item.—I hereby revoke the
seventh item in the above will, having made a different disposi-
tion of my money; and Rice county shall not be a legatee, nor
have any interest in or to my estate, or any part thereof.**

§ 1160. Codicil reviving a former will previously re-
voked.*—Whereas I, of , have duly made my last
will, dated the day of , which I delivered into the cus-
tody of of , in whose possession I believe it still re-
mains; and whereas by a codicil dated the day of
after reciting the said hereinbefore recited will, I did thereby ut-
terly revoke and make void the same will: Now I do hereby
revoke the said codicil of the day of , and do hereby
declare my said will to be valid and subsisting. In witness, etc.

 

 

 

 

 

 

 

 

 

 

§ 1161. Codicil directing which of two prior wills shall
take effect —Whereas, there is an act of assembly rendering
void all eleemosynary bequests and devises, if not executed in a
certain number of days before the decease of the testator: And,

79 Home for Incurables v. Noble, 81In re Scott’s Will, 88 Minn. 386,
172 U. S. 383, 19 Sup. Ct. 226, 43 L. 93 N. W. 109, 8 Prob. Rep. Anns 399.
ed. 486, 4 Prob. Rep. Ann. 288 82 See ante, § 478,

80 See ante, § 463.
§ 1162 WILLS 764

whereas, I executed a will dated the twentieth day of November,
A. D. 1871; Now I, James Hamilton, the testator, declare said will
of 20th of November, 1871, marked “A” to be my last will and
testament, should I die before the first of March, 1873, otherwise
the will of the 13th of January, 1873, shall be, and is hereby de-
clared to be my last will. Witness my hand and seal this
day of January, 1873.%

 

§ 1162. Codicil revoking bequests to trustee and appoint-
ment of executors, and substituting trust company as trus-
tee and executor.—I, of , do hereby declare this
present writing to be a codicil to my last will and testament, bear-
ing date the day of Whereas by my said will I gave
and bequeathed all my personal estate unto my executors and
trustees therein named, upon certain trusts therein declared:
Now I do hereby revoke my said will so far only as relates to the
bequest to and appointment of my said executors and trustees,
and I do hereby constitute and appoint the Trust Company
of , a corporation organized under the laws of the state of

, to be the sole trustee and executor of this my will, in the
stead or place of my said executors and trustees hereinbefore
mentioned; and I declare that said trust company shall be exempt
from giving a surety or sureties on its official bond. I do hereby
further direct and declare that all the trusts expressed and de-
clared in and by my said will shall be carried out and conducted
under the management of the said trust company, and that such
company shall be entitled to retain out of my said trust estate
and premises its regular charges for such management as afore-
said. And I do hereby ratify and confirm my said will in every
other respect. In witness, etc.

 

 

 

 

 

 

 

§ 1163. Codicil appointing two new trustees in the place
of a deceased and a retiring trustee.—I, of , do
hereby declare this present writing to be a codicil to my last will
and testament, bearing date the day of Whereas
since the date and execution of my said will, of , one

 

 

 

 

 

 

83 Bradish v. McClellan, 100 Pa. St. 607, 3 Am. Prob. 201.
765 FORMS FOR PARTICULAR CLAUSES § 1164

of the two trustees and executors therein named, has died, and

, the other trustee and executor, has expressed his inten-
tion to decline to act in the trusts of my said will: Now I do
hereby revoke the appointment of the said and -as such
trustees and executors as aforesaid, and all devises and bequests
made to them by my said will, and do appoint and to
be the trustees and executors thereof, in the stead or place of the
said and , trustees and executors named in my said will.
And I do hereby also direct and declare that my said will shall
be read and construed so as to have the same effect and operation
in every respect as if the names of the said new trustees had been
originally inserted therein, instead of the names of the said for-
mer trustees, in every part of my said will in which their names
occur. And I do hereby ratify and confirm my said will in every
other respect. In witness, etc.

 

 

 

 

 

 

§ 1164. Alteration of will by erasure and interlineation.—
Be it remembered that I, of , have made in my own
handwriting in this my will the alterations hereinafter specified
(that is to say): in the line of the page, the words
are erased, and the words are inserted in their stead.
The words in the line of the page, and the .—,
and lines of the same page, and the words in the line
of the same page, are erased. Between the words in the
line of the same page, the words are inserted. I de-
clare the above writing so altered to be my will.**

 

 

 

 

 

 

 

 

 

 

 

 

 

 

84To be effective such memoran- dum should be attested as a will is
required to be.
CHAPTER XXXI.

ENTIRE WILLS AND ADJUDICATED FORMS.

SECTION

1170. Brief will giving all testator’s
property to wife absolutely.

1171. Devise and bequest of entire
estate to wife.

1172. Will devising real estate to tes-
tator’s wife for life, and after
her death upon trusts for his
children.

1173. Will giving the whole of the
testator‘s real and personal
property to his brother with
substitution of his children or
isstie.

1174. Will giving immediate legacy
to wife and residue of prop-
erty to trustees in trust for
wife for life, with remainder
to children. :

1175. Will making immediate bequest
to wife with other bequests
and placing remainder of

‘property in trust for benefit
of wife and children.

1176. Will giving residuary estate to
_ trustees with life interest .to
son and his wife, afterward
income to son’s children and
division of capital on the
death of the longest surviv-
ing child living at testator’s
decease.

1177. Will of widow devising and be-
queathing her estate to trus-
tees in trust for minor son,
with ultimate trust to sisters.

1178. Will authorizing executors to
carry on the business of the
testator’s firm during the life
of his wife and daughter, giv-

SECTION
ing annuity to wife, income
to children, and _ dividing
property on death of wife
and daughter.

1179. Will of a married woman in
exercise of a power of ap-
pointment in her marriage
settlement.

1180. Agreement to give effect to in-
tended will not executed.

1181. Assignment by way of sale of
a legacy.

1182. Will limiting time of sale of
real estate.

1183. Joint will by tenants in com-
mon.

1184. Joint and mutual will.

1185. Joint will.

1186. Short will.

1187. Will in form of a letter.

1188. Short holographic will.

1189. Will—Fee simple to wife.

1190. Will not in technical legal
terms, but explicit, giving life
estate to children, remainder
to grandchildren, living at
death of testator,

1191, Will with remainder to church.

1192, Will—Directions to executors
to retain real estate two
years, then to sell it:

1193. Directions for sale of real
estate by executors—Estate
in children vesting at time of
distribution.

1194, Will devising property for life
with power of disposition of
fee.

766
767

ENTIRE WILLS AND

SECTION

1195. Determinable fee and execu-
tory devise.

1196. Will—Gift of use.

1197, Will—Proceeds of real estate
subsequently sold by testator
passing as personalty.

1198. Will disposing of several plan-
tations—Power to sell and re-
invest.

1199. Will—Words in brackets show
construction placed on will
by court.

1200. Will with codicil, which creates
an implied charge on entire
estate.

1201. Will— Trust for wife and
daughter—Remainder to heirs
on failure of issue.

1202. Will under which, on death of
nephew before testatrix, his
legacy lapsed and was dis-
tributed as intestate prop-
erty.

1203. Will giving life estate with
power to sell.

1204. Will—Life estate to wife and
daughter, remainder to go ac-
cording to intestate laws.

1205. Will—Charge of support for
one living in family.

1206. Income, rents and profits for
life to wife, fee to children.

1207. Will—Bequests to children of
brothers per capita.

1208. Vested remainder — Defeasible
fee in remainder—Executory
devise.

1209, Will—Trust to executors for
support and education of
children—Fee in executors.

1210. Will—Specific legacies — Pro-
vision as to contest of hus-
band’s will.

1211. Will—Entire estate community
property—All given to wife
with power to sell—Precatory
trust for support of testator’s
mother and sister.

‘ADJUDICATED FORMS § 1170

SECTION

1212. Will—Life estate to wife—Spe-
cific legacies to children.

1213. Will—Gift to wife in lieu of
dower—Provision for grand-
sons conditioned on character
—Bequests to charity.

1214. Will—Directions for sale of
real estate and distribution of
proceeds,

1215. Will—Directions for equitable
conversion.

1216. Will—Held to create trust for
son during life, though he
survives his daughter, and
that grandchildren born after
testator’s death have no right
to share in legacy to grand-
child dying before reaching
age of twenty-five.

1217. Will made in two countries—
Bequests to citizens of for-
eign countries, and disposing
of property in foreign land.

1218. Will— Property in several
states.

1219. Will leaving property to mother
and husband of testatrix re-
ferring to children sufficiently
to preclude their sharing in
estate.

1220. Devise of residue to children in
trust; share of child dying
before testatrix to go to chil-
dren surviving at death of
testatrix.

1221. Will—Devise to widow for life,
remainder to sons on condi-
tion precedent.

1222. Will—Life estate given to wife
and daughter; fee by implica-
tion to children of daughter.

1223. Will—Life estate to children—
Contingent remainder in resi-
due to grandchildren.

1224. Will—Gifts to a class as ten-
ants in common—Codicil.
§ 1170 WILLS 768

SECTION SECTION

1225. Will—Trusts—Provisions for 1231. Will—Determinable fee—Lega-
advance and payment of cies charged — Directions as
claims—Codicil, to carrying on insane hospital.

1226. Will—Trust for son—Income 1232. Will—-Conditional legacies —
after death to his widow— Residue to Smithsonian Insti-
Trust for daughter. tution for scientific publica-

1227, Will—Trust for son. tions.

1228. Will with alterations and codi- 1233, Will by husband—Various char-
cil—Devise to nearest blood itable bequests—Later will by
relatives. wife, exercising power of ap-

1229. Will leaving residue to prison pointment given by husband’s
association. will.

1230. Will—Trust for granddaughter
—Remainder to  charities—
Codicil revoking gift.

§ 1170. Brief will giving all testator’s property to his wife
absolutely.—I devise and bequeath all my real and personal
property wheresoever it may be to my wife absolutely, hereby re-
voking all former wills and testamentary dispositions made by
me, and I appoint her sole executrix of this my will.

In witness whereof, I have hereunto set my hand this
of ,

 

day

 

§ 1171. Devise and bequest of entire estate to wife.—I,
of , declare this to be my last will, hereby revoking
all wills and testamentary papers at any time heretofore made
by me.

I devise and bequeath all the estate and effects whatsoever and
wheresoever, both real and personal, to which I may be entitled,
or which I may have power to dispose of at my decease, unto my
dear wife—absolutely ; and I appoint her sole executrix of this
my will, and guardian of my infant children during their respec-
tive minorities. And I direct that she be exempt from giving any
surety or sureties on her official bond as executrix. In witness
whereof I have hereunto set my hand this day of ,
19—. (Signature of testator.)

Signed by the said testator, , as his last will, in the pres-
ence of us, who, at his request, and in his presence, and in the
presence of each other, have hereunto subscribed our names as
witnesses. (Signatures of witnesses. )

 

 

 

 

 
769 ENTIRE WILLS AND ADJUDICATED FORMS § 1172

§ 1172. Will devising real estate to testator’s wife for
life, and after her death upon trusts for his children.—I,
of , hereby revoke all testamentary dispositions heretofore
made by me, and declare this to be my last will:

1. I appoint , my wife, and of , my friend, and
the survivor of them, to be the executors and trustees of this, my
will (and guardians of my infant children).

2. I give to my wife absolutely all articles of household,
domestic or personal use or ornament belonging to me.

3. I devise and bequeath all my real and personal estate and
effects unto my trustees, upon trust to sell, call in and convert
the same into money (with power in their discretion to post-
pone such sale, calling in and conversion), and after payment
thereout of my debts and funeral and testamentary expenses, to
invest the residue of such moneys in their names as trustees, in
any of the investments authorized by law, and to stand possessed
of such investments and of all parts of my estate for the time be-
ing unsold:

(a) Upon trust to pay the income thereof to my wife for life,
and after her death,

(b) Upon trust to pay and divide the capital and income of my
residuary estate among my children, and the issue of any de-
ceased child, in such shares, and subject to such powers and pro-
visions as my wife shall by deed, will or codicil appoint ; and sub-
ject to any such appointment, upon trust to pay and divide the
same among all my children, the issue of any deceased child
taking the share of such child, living at my death, in equal shares.

4. I empower my trustees at any time or times to raise any
part or parts not exceeding in the whole one-half of the then
presumptive or vested share of any person in my residuary estate
under the trusts of this, my will, and to apply the same at their
discretion for the advancement or benefit of such person, but dur-
ing my wife’s life her previous consent in writing to any such
advancement shall be necessary.

In witness, etc. (Signatures of testator and witnesses. )

ai

 

 

 

 

 

49—Tuomp. WILLs.
8 1173 WILLS 770

§ 1173. Will giving the whole of the testator’s real and
personal property to his brother, with substitution of his
children or issue.—I, of , hereby revoke all wills,
codicils, and testamentary dispositions heretofore made by me,
and declare this to be my last will. I appoint of to
be sole executor of this my will. I devise and bequeath all the
real and personal property to which I may be entitled, or over
which I may have any disposing power at the time of my death,
unto and to the use of the said , absolutely. But if the said
should be dead at my death, I appoint and to be
my executors and trustees; and I devise and bequeath the said
real and personal property unto and to the use of the child or
children of the said living at my death, and the child or
children then living of such child or children of the said as
may be then dead, absolutely, in equal shares, and so that the
child or children of a deceased child shall take only such share
as his, her, or their parent would have taken if living.

 

 

 

 

 

 

 

 

 

 

§ 1174. Will giving immediate legacy to wife and residue
of property to trustees in trust for wife for life, with re-
mainder to children.—I, of , hereby revoke all wills,
codicils, and other testamentary dispositions heretofore made by
me, and declare this to be my last will. I give to my wife
all articles and effects of personal, domestic, or household use or
ornament, and an immediate legacy of dollars. I give the
residue of my estate, real and personal, to my said wife and
of , hereinafter called my trustees, in trust to sell, convert,
and get in the same, with power to postpone such sale and con-
version indefinitely without being responsible for loss, and out of
the proceeds thereof to pay my funeral and testamentary ex-
penses, debts, and legacies; and to invest the residue in any invest-
ments authorized by law in the case of trust funds, with power
to vary such investments at discretion; and to pay the income of
the said trust estate, as well before as after the sale, conversion,
and investment thereof, to my wife during her life; and after
her death to stand possessed thereof in trust for my children
or remoter issue in such shares as my said wife shall by deed or

 

 

 

 

 

 
771 ENTIRE WILLS AND ADJUDICATED FORMS $1175

will appoint; and in default of and subject to any such appoint-
ment, in trust for all or any of my children, who being male at-
tain the age of twenty-one years, or being female attain that age
or marry, in equal shares, if more than one.

I hereby declare that the power herein given to sell my estate,
real or personal, may be exercised by said trustees, the survivor
of them, or their successor or successors in the trust. I appoint
my said wife and the said my executors; I also appoint my
wife to be guardian of my infant children. In witness, etc.

 

§ 1175. Will making immediate bequest to wife with other
bequest, and placing remainder of property in trust for bene-
fit of wife and children.—I, of , hereby revoke all
wills and testamentary dispositions heretofore made by me, and
declare this to be my last will.

1. I bequeath to my wife all my household goods, books,
pictures, horses, carriages, and other effects which at my death
may be in or about my dwelling-house, or the buildings or
grounds connected therewith.

2. I bequeath to my said wife the sum of dollars, to be
paid to her within one calendar month after my death.

3. I also give and devise to my said wife, for her benefit abso-
lutely, my dwelling-house, with the other buildings and grounds
connected therewith, situate on street, at , in the county
of ;

4. I bequeath to my daughter the sum of dollars
for her sole and separate use, independently of her husband (if
any), and her receipt shall be sufficient discharge for the same.

5. I devise and bequeath all my real and personal estate what-
soever, excepting only my dwelling-house, which I have hereby
given to my said wife, unto and , upon trust that they,
the said and , or the survivor of them, their or his suc-
cessors, or the trustees or trustee for the time being hereinafter
referred to as said trustees, shall, in such manner and upon such
terms and conditions in all respects as he or they, in their or his
discretion, shall think fit, sell, collect, or otherwise convert into
money, such parts of the trust premises as shall not consist of

 

 

 

 

 

 

 

 

 

 

 

 

 
"§ 1175 WILLS P72

money; and shall out of such moneys pay my funeral and testa-
mentary expenses and debts, and the pecuniary legacies be-
queathed by this will, and shall invest the residue of the said
moneys in the names or name, or under the legal control, of the
said trustees or trustee, in any bonds of the United States, or in
the bonds or stocks of any commercial corporation regularly
paying dividends, or in the bonds or notes of any municipal cor-
poration regularly paying its interest, or in mortgages of im-
proved real property situate in the state of ; and may vary
the securities or investments at their or his discretion.

6. I direct my trustees to pay the income of the said trust
moneys, and investments for the time being representing the
same, to my said wife during her life in half-yearly or more fre-
quent payments. And I request my said wife, but not so as to
impost any legal obligation upon her, to maintain and educate
such of my children as shall for the time being be minors, and un-
married, and to make proper annual or other allowances to
such of my children as shall for the time being have attained the
age of twenty-one years, and shall, in her opinion, require the
same,

7. After the death of my said wife I direct that my said trus-
tees shall hold the said trust premises in trust for all or any of
my children living at the time of my decease, who being sons or
a son shall attain the age of twenty-one years, or being daugh-
ters or a daughter shall attain that age or marry, and, if more
than one, in equal shares: provided always, that if any child of
mine shall have in my lifetime died, leaving issue living at the
time of my death, such issue, who being sons or a son shall at-
tain the age of twenty-one years, or being daughters or a daugh-
ter shall attain that age or marry under that age, shall take by
substitution, in equal shares if more than one, the share which
such child of mine would have taken under the trust hereinbefore
declared had he or she survived me and attained a vested inter-
est.

8. After the death of my said wife, I empower my said trus-
tees to apply the whole, or such part as they shall think fit, of the
income of the share to which any child of mine, or the issue of

 
iio ENTIRE WILLS AND ADJUDICATED FORMS § 1176

any such child living at my death, shall for the time being be
entitled in expectancy under the trusts hereinbefore declared,
for or toward his or her maintenance or education; and may
either themselves or himself so apply the same, or may pay the
same to the guardian or guardians of such child for the purpose
aforesaid, without seeing to the application thereof.

9. If there shall be no child of mine, and no issue of any such
child, living at my death, who being a son shall attain the age of
twenty-one years, or being a daughter shall attain that age or
marry, then from and after the death of my said wife I bequeath
the said moneys, and the trust funds representing the same, unto
my brothers and sisters living at my death, in equal shares.

10. I hereby declare that the said trustees or trustee may post-
pone the sale, conversion, and collection of all or any part or
parts of my said real and personal estate respectively, so long as
they or he shall deem proper, but my real estate shall be consid-
ered as personalty from the time of my death; and during such
postponement the said trustees or trustee may manage and let
upon lease, or from year to year, or cultivate, my real and lease-
hold estates, and make out of the income or capital of my real
and personal estate any outlay which such trustees or trustee may
consider proper for improvements, repairs, insurance, premiums
on policies, or otherwise, for the benefit or in respect of my real
and personal estate.

11. I do hereby declare that my said wife shall have the
power of appointing a new trustee or new trustees of this my will
should any vacancy occur during: her lifetime.

12. I appoint the above named and to be executors
of this my will, and trustees for the purposes therein named. In
witness, etc.

§ 1176. Will giving residuary estate to trustees, with life
interest to son and his wife, afterward income to son’s chil-
dren, and division of capital on the death of the longest sur-
viving child living at testator’s decease.—I, of , in
the county of and commonwealth of , do make the fol-
lowing as my last will and testament, hereby revoking all former
wills by me at any time heretofore made.

 

 

 

 

 

 
§ 1176 WILLS 774

1. I direct all my just debts to be paid.

2. I give to my son the sum of dollars; also all my
furniture, silver plate, statuary, books, china, glassware, and pic-
tures.

3. I give to the Orphan Asylum the sum of dollars,
and to the institutions known as the Sailors’ Home, of ——-,
and the Sailors’ Snug Harbor, of : dollars each.

4. I give all the rest, residue, and remainder of my property,
real, personal, and mixed, of which I may died seised or pos-
sessed, or over which I may have testamentary control, or to
which I may be in any way entitled, of whatsoever the same may
consist, and wheresoever situate, including all the estate given
me by my late brother , over which I have testamentary con-
trol, to and , and their heirs and assigns, and the sur-
vivors of them, and the heirs and assigns of such survivor, to
have and to hold the said rest, residue, and remainder upon and
for the following trusts and purposes, that is to say: Upon trust
to lease all my real estate for reasonable rent, and out of the net
income derived therefrom, and the net income and interest re-
ceived from my personal estate, after deducting the cost of keep-
ing the real estate in good repair, and the cost of insurance of the
same, and all taxes on both real and personal estate, and the
charges and expenses of managing the trust, to pay over to my
servants and the annual sum of dollars each in
equal quarterly payments during life; and the balance of all such
net income of said real and personal estate to pay over semi-
annually, or oftener if practicable, to my said son , during
life, for the maintenance and support of himself and his family;
and it is my will that all such payments shall be made upon the
joint written receipt of my said son and his wife while she is liv-
ing, and such joint receipt shall be full discharge to said trustees
for such payments. This direction in respect to said balance of in-
come is subject to this provision, namely, that I authorize and
empower my said trustees, and their successors in said trust,
to pay over out of the said net balance to the children of my said
son living at my decease, as they severally attain the age of
twenty-one years, the annual sum of dollars each during

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
775 ENTIRE WILLS AND ADJUDICATED FORMS € 1177

life; but if in the judgment of said trustees it shall seem best in
any year or years to withhold such payment with respect to any
of such children, they are authorized so to do.

5. If my said son shall not be living at my decease, or upon
his death, if he should survive me, I direct the said trustees to
pay over annually out of said net income the sum of dol-
lars to any wife whom my said son may leave living at his death
(and who shall be alive at my decease) during life; such pay-
ments to be made semi-annually, or oftener if practicable, for her
maintenance and support; and the residue of such trust income to
pay over semi-annually, or oftener if practicable, to such child or
children of my said son as shall survive him, during the life of his
longest surviving child living at my decease (the children of de-
ceased children taking by representation), for the maintenance
and support of such beneficiaries. If any child of my said son
who is entitled under this will to a share of said income shall die
before the principal is divisible as hereinafter provided, without
leaving issue surviving, it is my will that such child’s share shall
go to the other surviving child or children of my said son, the
children of deceased children taking by representation.

6. Upor. the decease of my said son, and of all his children
who were living at my decease, I direct that all the principal of
said trust property held in trust for their benefit as aforesaid be
divided and conveyed absolutely free of trust among the issue
then living of my said son, and the said issue taking per stirpes
and not per capita; if there be no such issue then living, I give
the same to my heirs at law.

Upon the decease of any wife of my said son, who shall be liv-
ing at the time of the said division of the trust principal held for
the benefit of the children of my said son, as aforesaid, I direct
the trust capital, from which the said annuity of dollars is
to be paid, to be divided among the same persons and in the same
proportions as I have in this item of my will directed the trust
principa! held for the benefit of my son’s children to be divided.

7. If my said son shall not be living at my decease, and there
shall be no wife or issue of his then surviving, I give all the said

 

 
§ 1177 WILLS 776

rest, residue, and remainder of my estate absolutely and free of
trust to my heirs at law.

8. I hereby authorize and empower my said trustees, or such
person or persons as may for the time being be the trustees or
trustee under this will, if he or they deem it necessary or expedi-
ent, to sell at public or private sale any portion or the whole of the
real estate he or they may hold under the trusts hereby created,
and to make, execute, and deliver good and sufficient deeds to
convey the same; and the proceeds thereof to invest in other real
estate, with like power of sale, or in such mortgages, stocks, or
other personal securities yielding income, as they shall think judi-
cious, with power of change and substitution from time to time
as they shall think best.

9. I direct that my said trustees, and every successor for either,
may act under a power from each other from time to time, as
circumstances may require; also that upon the resignation or re-
fusal to act at all of either of said trustees, and upon the resig-
nation or other disability of any successor, every act of a single
trustee till such vacancy is filled, otherwise lawful, shall be as-
effectual and efficient as if done by two trustees.

10. No person paying money or other thing in its stead to any
trustee, upon such trustee’s receipt, shall be liable to see to the
application, or be answerable for the misapplication or new appli-
cation, of the same; and no trustee shall be answerable, by virtue
of or under the trusts reposed by this will, except for his own
actual receipts, acts, neglects, and wilful defaults. I do not re-
quire the said trustees to give sureties or a surety upon their offi-
cial bonds.

11. I hereby appoint my said son ——, and of , to
be executors of this will, and I request that they shall be exempt
from giving a surety or sureties on their official bonds.

In witness whereof I, the said , have to this my last will
and testament set my hand and seal this day of , in the
year of our Lord one thousand nine hundred and

 

 

 

 

 

 

$1177. Will of a widow devising and bequeathing her
estate to trustees in trust for minor son, with ultimate trust
777 ENTIRE WILLS AND ADJUDICATED FORMS § 1177

to sisters.—I, of , hereby revoke all former wills
made by me, and declare this to be my last will.

I devise and bequeath all my real estate of every nature, and all
my personal estate and property whatsoever, to and ;
trustees, and to the survivor of them, and their successor or suc-
cessors of the trust, and their heirs, executors, and adminis-
trators, according to the nature thereof, upon trust, during
the minority of my son , to apply the whole or any
part, at the discretion of my trustees, of the annual in-
come of said trust premises for or toward the maintenance,
education, or benefit of my said son. I direct my said
trustees to accumulate the surplus, if any, of the annual income
by investing the same during my said son’s minority in any
investments which are proper for trust funds, in enlargement of
the trust premises, and to follow the destination of the capital of
said trust estate, but with power to apply the accumulations of
any preceding year or years for the maintenance, education, or
benefit of my said son in any succeeding year or years. I em-
power my trustees, in their discretion, to apply any part of the
capital of the trust premises for the benefit of my said son during
his minority, in such manner as they may think fit.

When my said son shall attain the age of twenty-one years,
my said trustees shall pay and transfer to him absolutely the said
trust property, or so much thereof as shall not have been applied
or disposed of under the preceding trusts; but if my said son shall
die, either in my lifetime or after my decease, under the age of
twenty-one years, or shall die in my lifetime after attaining that
age, but without leaving issue surviving me, then my trustees
shall hold the trust property upon trust from and after the death
of the survivor of myself and my said son, to pay the annual
income of said property to my sister, , during her life; and
upon her death to pay thereout the sum of dollars to each
of my other sisters, and ; and to hold the ultimate resi-
due of the said trust property in trust for of ;

I authorize my said trustees, or the trustees for the time being
under this will, to sell the whole or any part of both the real and
personal trust property at private sale or public auction, at their

 

 

 

 

 

 

 

 

 

 

 
§ 1178 WILLS 778

discretion, for any of the purposes connected with the trust estate,
or the management thereof, and to execute and deliver such deeds
or other instruments of transfer as may be necessary to pass
proper title to the same.

I further authorize my said trustees to lease all or any of the
real estate held by them under the trusts of this will for such term
or terms, and upon such conditions, as they shall see fit, and gen-
erally to manage and improve said real estate in such manner as
they shall deem best for the trust premises.

I appoint said and , trustees hereinbefore named, to
be executors of this my will. In witness, etc.

 

 

§ 1178. Will authorizing executors to carry on the busi-
ness of the testator’s firm during the life of his wife and
daughter, giving annuity to wife, income to children, and
dividing property on death of wife and daughter.—l,
of , do hereby make, publish, and declare this as and for my
last will and testament, revoking and annulling all other and for-
mer wills by me at any time heretofore made.

1. I direct the payment of all my just debts as soon as prac-
ticable after my decease.

2. I direct that my executors, as hereinafter named, or such
of those named as shall qualify as such, their survivors or suc-
cessors, shall prosecute and carry on with my estate and property
my present business, under the firm name of & Co., for and
during the lifetime of my wife and my daughter , and
the survivor of them, and that all profits and gains arising fron
said business shall, after the sums set apart for the support of my
wife and children, as hereinafter provided, are deducted, be
added to and form a part of the working capital of my estate.

3. From the income and profits of my said estate my execu-
tors shall pay to my beloved wife , during her life, the sum
of dollars net per annum, to be paid in equal monthly pay-
ments upon her individual receipt, free from any abatement or
reduction for any charge or tax whatsoever. I give to her also,
and to her heirs forever, all my household furniture, beds, bed-
ding, pictures, books, jewelry, horses, carriages, silverware, and

 

 

 

 

 

 

 
779 ENTIRE WILLS AND ADJUDICATED FORMS § 1178

plate owned by me at my decease; also, the use and occupation,
rent free, during her lifetime, of my residence in , and my
country place at , the same to be kept in repair by my estate.
These provisions for my wife shall be in lieu and bar of all claims
for dower she may have in my estate.

4, From the surplus income of my estate my executors shall
support, educate, and maintain my child or children surviving
me, and such as may be born alive of my said wife within nine
months after my decease, until they severally attain the age of
twenty-five years, up to which age such executors may advance
any child or children such moderate sum or sums of money as in
their best judgment will benefit or promote the happiness or com-
fort of such child or children, such advances to be charged against
them. When any child attains the age of twenty-five, said execu-
tors shall pay over to such child the full sum per annum, or in-
come to which he or she may be entitled from out the profits of
said business after my wife’s annuity is paid her, with expenses
thereof, and my executors shall so apportion and divide such in-
come and profits that my son shall receive twice the sum per
annum that my daughters receive. In case of the death of any
child or children of mine, leaving lawful issue surviving, then
the parent’s share shall be paid to such issue, if of age, or used
for their education, support, and maintenance (or so much
thereof as may be necessary), by my executors, until said issue
attains the full age of twenty-one years, when such income shall
be paid to them in full. Upon the death of my said wife and my
daughter , the said business shall be closed, and my entire
estate settled and divided among my children or their descend-
ants, if any have died leaving children, equally, per stirpes. In
case of the death of all my children, leaving no lawful issue or
descendants them surviving, upon the death of my said wife, my
business being closed, all my estate of every kind, with all ac-
cumulations, profits, and gains arising from business or other-
wise, shall be divided equally among my sisters and ‘
and my niece (daughter of my deceased brother 4
share and share alike, the descendants of such as may have died
taking per stirpes, not per capita; or if either have died leaving no

 

 

 

 

 

 

 
§ 1179 WILLS 780

issue or descendants, then such share shall be given to the sur-
vivor of those above named.

5. I appoint as the executors of this my will ; , ;
and , and authorize them, or the survivor or the executors or
executor for the time being of my will, to sell and convey all or
any part of my real estate left by me as they or he may deem ad-
visable, and to give good and valid deeds therefor, with full
power to change securities and investments at their discretion.
My said executors and my said wife shall be the guardians of the
estates of my children during their minority. In the prosecution
of my said business as above directed, the said executors shall not
be liable personally for any losses or debts except those arising
from bad faith or gross mismanagement. In witness whereof I
have hereunto set my hand and seal this day of » 19—.

 

 

 

 

 

 

§ 1179. Will of a married woman in exercise of a power
of appointment in her marriage settlement.—I, of :
hereby revoke all wills and testamentary dispositions heretofore
made by me, and declare this to be my last will. Whereas by an
indenture dated the day of , being a settlement made in
consideration of the marriage shortly after solemnized between
myself and the said ——-, it was agreed that and ;
trustees therein named, and the survivors and survivor of them,
and the trustees or trustee for the time being, should hold the sum
of dollars, then belonging to me, and then lately transferred
by me into the names of the said and , in trust for the
purposes therein declared; and whereas it was by the indenture
now in recital declared that if there should be no child of the said
then intended marriage, who being a son should attain the age of
twenty-one years, or being a daughter should attain that age or
marry, then (without prejudice to the trusts thereinbefore de-
clared) the said trustees or trustee should hold the said trust
premises, and the annual income thereof, or so much thereof re-
spectively as should not have become vested or been applied under
any of the trusts or powers therein contained, in trust for such
persons and purposes, and in such manner, as I should, while
under coverture, by deed, or, whether under coverture or not, by

 

 

 

 

 

 

 

 

 
781 ENTIRE WILLS AND ADJUDICATED FORMS § 1180

will or codicil appoint ; and whereas there has been no issue of my
said marriage: Now, in exercise of the power to me by the here-
inbefore recited indenture of settlement given, as aforesaid, and
of every other power enabling me in this behalf, I hereby appoint
that if no child of my said marriage, being a son, shall attain the
age of twenty-one years, or being a daughter shall attain that age
or marry, the trustees or trustee for the time being of the said
indenture shall, after the death of my said husband, and such de-
fault or failure of children as aforesaid, out of the said trust
premises and the investments for the time being representing the
same, and the income thereof, or so much thereof respectively as
shall not have become vested or been applied under any of the
trusts or powers in the said indenture contained, raise and pay to

; dollars, and to ' dollars, and shall pay and
transfer the residue of the said trust premises and investments,
and of the income thereof, unto and , in equal shares.
And I hereby appoint the said and executors of this
my will. In witness, etc.

 

 

 

 

 

 

 

 

§ 1180. Agreement to give effect to intended will not
executed.—To all to whom these presents shallcome: Where-
as , late of , died on the day of , intestate,
leaving the undersigned 5 , and , his three children
and only next of kin him surviving; and whereas shortly before
his decease the said gave instructions to his solicitors for the
preparation of his last will, and the same was drafted, but never
signed by the said ; and whereas the draft of the will marked
“A” this day signed by all the parties hereto is admitted by them
and each of them to contain the testamentary dispositions of the
said , and all said parties are desirous, notwithstanding the
intestacy of the said , to deal with and dispose of all his real
and personal estate in accordance with the terms of said drafted
will: Now in consideration of the premises, and in order to avoid
questions and disputes as to the division of the real and personal
estate of the said , it is hereby declared and agreed and the
said parties hereto hereby mutually covenant as follows:

1. All the real and personal property of the said

 

 

 

 

 

 

 

 

 

 

 

 

shall

 
§ 1181 WILLS 782

be disposed of, divided, and dealt with in accordance with the
terms of the said document marked “A”, and signed by the said
parties hereto. as aforesaid.

2. Alland every of the said parties hereto, and their respective
heirs, executors, admiinistrators, and assigns, shall execute all
such deeds and documents, and do all such acts, as may be nec-
essary, or be deemed expedient, to give complete effect to this
agreement, and the cost of the preparation and execution of such
documents shall be deemed expenses attending the execution of
the trusts and dispositions declared and contained in the said
document marked ‘‘A”.

3. None of the said parties, or his or her heirs, executors, ad-
ministrators, or assigns, shall, as next of kin or heir at law of
the said , or in any other character, bring any action or take
any proceedings against any other party hereto, his or her heirs,
executors, administrators, or assigns, in reference to any part
of the said real or personal property of the said ; but this
shall not prejudice the right of any party to enforce performance
of this agreement or of any of the terms hereof.

4. The said , one of the sons, shall be allowed to obtain
without opposition letters of administration to the personal estate
and effects of the said , but such estate and effects shall be
administered and dealt with according to the terms of this agree-
ment.

In witness whereof the said parties hereunto set their hands
and seals this day of , 19—.

 

 

 

 

 

 

§ 1181. Assignment by way of sale of a legacy.—This in-
denture, mace the day-of , 19—, between of .
of the one part, hereinafter called the vendor, and of '
of the other part, hereinafter called the purchaser: Whereas
, late of , by his will dated the day of , 19—,
bequeathed to the vendor the sum of -—— dollars, and appointed
the sole executor of his said will; and whereas the said
testator died on the day of , 19—, without having re-
voked or altered his said will, which was, on the day of
, 19—, duly proved by the said executor in the probate court

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
f

783 ENTIRE WILLS AND ADJUDICATED FORMS § 1182

 

for the county of ; and whereas the said legacy of dol-
lars, to which the vendor is so entitled as aforesaid, has not yet
been paid, and the said purchaser has agreed with the said vendor
for the purchase of the same at the price of dollars: Now
this indenture witnesseth, that, in pursuance of the said agree-
ment, and in consideration of the sum of dollars now paid
to the said vendor by the said purchaser, of which sum the said
vendor hereby acknowledges the receipt, he, the said vendor,
hereby assigns and conveys unto the said purchaser, his execu-
tors, administrators, and assigns, all the legacy or sum of
dollars so bequeathed to him, the said vendor, by the herein-
before recited will of the said testator, and all moneys to become
due and payable in respect of the said legacy, with all powers and
remedies for the recovery thereof: To hold the said legacy and
premises hereby assigned unto the said purchaser, his executors,
administrators, and assigns, for his and their absolute use and
benefit.. In witness, etc.

 

 

 

 

§ 1182. Will limiting time of sale of real estate.—I give
and bequeath to my children, C. C.C., W. A. C., and C.F. C.,
and such child or children as may hereafter be born to me, all
my estate which is not herein specifically designated and be-
queathed to others, to be divided equally among them, giving to
each of my said children to be paid out of my general estate, the
sum of one thousand five hundred dollars as each shall arrive at
the age of twenty-one years. I also desire that none of my real
estate shall be sold until the youngest surviving child shall arrive
at age, and in case either one of them shall die without issue of
his own, the survivors shall take his portion of the said estate
equally.*

§ 1183. Joint will by tenants in common.’—We, A. H. and
P. H., of the county of Hocking, in the state of Ohio, do make
and publish this our last will and testament, in manner and form
following, that is to say: First, it is our will that our funeral ex-
penses and all our just debts be first fully paid; secondly, that all

1Coleman v. Coleman, 69 Kans. 39, 2 See ante, § 28.
76 Pac. 439, 9 Prob. Rep. Ann. 77.
§ 1184 WILLS 784

of our property, both real and personal, go to J. B. and J. D. B.
and their heirs forever; lastly, we hereby constitute and appoint
J. B. to be executor of this our last will and testament, revoking
and annulling all former wills by us made, and ratifying and con-
firming this, and no other, to be our last will and testament.*

§ 1184. Joint and mutual will.—Being of sound and dis-
posing mind, we, M. W. R. and H. G. R., both of the county of
Peoria, city of Peoria, and state of Illinois, do make and declare
this our last will and testament.

The one of us surviving the other is to inherit all property,
real, personal, or mixed, of the other, to be used as the survivor
may see fit, but should both die, or if when both shall be dead
no individual will has been made, then the property of both
shall be treated as one and the same and disposed of as provided
below. The one surviving is hereby appointed executor of the
other without bond.*

§ 1185. Joint will..—“Know all men by these presents,
that we, M. S. and H. S., wife and husband, of Blackhawk
county, Iowa, both being of lawful age and of sound mind and
memory, do make, publish, and declare this instrument to be,
jointly as well as severally, our last will and testament, to wit,
hereby revoking all former wills:

First. All just debts and funeral expenses shall at all times
be fully paid.

Secondly. We thereafter desire that all property, real as well
as personal, of which we may be possessed at the time of the de-
cease of either of us, shall be held by the survivor during his or
her life, to use same as such survivor may see fit, except that
such use shall not be construed at any time to mean that the sur-
vivor can sell any of the real estate, but is used here for the pur-
pose of giving the survivor the right to change or modify the
specific bequests [or devises] hereinafter made.

Thirdly. Upon the decease of the survivor it is our desire that

3 Betts v. Harper, 39 Ohio St. 639, 5 Peoria Humane Society v. Mee
48 Am. Rep. 477, 4 Am. Prob. 429. Murtrie, 229 Ill. 519, 82 N. E. 319.
4 See ante, § 28. 6 See ante, § 28.
785 ENTIRE WILLS AND ADJUDICATED FORMS § 1185
*

our property shall be divided as follows: Our home in the city
of Cedar Falls, Iowa, with all household goods therein, shall go
to our daughter, M. S., said home being lots 7 and 8 in block 12
of E. Brown’s second addition to said city. Then next to our
daughter A. S., now Mrs. J. G., and to our son W. S., the north
one-half of all the land we own in section No. 6, in township 88
north, range 14 west of the 5th P. M., which they shall divide so
that our daughter A. receives the west half thereof and our son
W. the east half thereof. Then next the south one-half of said
land in said section shall go to our daughter M. S. and to our son
H. S., which they shall divide in such a manner that M. receives
the west half thereof and H. the east half thereof. In such di-
~ vision they shall not take into consideration any of the road sur-
rounding or adjacent to said lands, the intention hereof being to
give to each of them one-fourth of the actual farm land outside
of highways, and at the places of said section as above indicated ;
any right or easement in the public highway shall go to the heir
to whose land such highway is adjacent. And in the event of the
decease of any one of the above heirs and devisees without being
married, or heirs in the lineal descent, then the share of such heir
shall go to the survivors of the heirs above named. And we ex-
pressly provide hereby that none of said heirs shall have a power
to sell or dispose of any of the above real estate during their re-
spective lives, but shall bequeath and devise same to their re-
spective lawful heirs; and such respective heirs shall not dispose
of same for a term of twenty-one years from the date of the
decease of the party from whom it comes. The foregoing pro-
vision as to disposition shall also apply to the property in Cedar
Falls, Iowa, herein given to our daughter M. And we further
provide that, after all debts are paid as above contemplated, then
the residue and remainder of our personal property not herein
otherwise disposed of shall, upon the decease of the survivor of
us, be divided among said heirs share and share alike. In case
of the need of administration hereon at the decease of one of us,
that we agree upon the survivor as executor and without bonds.

50—Tuomp. Wits,
§ 1186 WILLS 786

In witness whereof we have hereunto set our hands on this 8th
day of February, A. D., 1897.
M. S.
H. S.7

$1186. Short will—I give, devise and bequeath all my
property, wherever situated, to my wife, J. C. P.®

$1187. Wiil in form of letter—(a) My dear Father :—
In case of anything happening to us, I would wish you to take
charge of our property. By law, I suppose it would be divided
between all my sisters. I would wish it otherwise. I wish all
the property to be sold except my portion of Deal, E would wish
to retain for herself; then the money to be put in government se-
curities, or any other sure investment. I make E. K. my sole
heir. I know she is just, and will give to those who need, and
will be guided entirely by your advice.

Your affectionate daughter,
M. B?

(b) A., don’t worry yourself about this matter, as you see you
are almost cut out on every side, by your father and your mother,
but you have been a faithful daughter to me, and have obeyed
me, and you have seen a great deal of trouble; don't worry your-
self, but take things easy and do the best you can for the present:
I have prospered and have accumulated a great of money
together, and I intend to do what I please with it; and A. after
my death you are to have forty thousand dollars; this you are
to have, will or no will; take care of this until my death; A. keep
this to yourself.*°

 

§ 1188. Short holographic will.—Jan. 25, 1897.—I, R. E.
S., of the county of Jefferson, state of Kentucky, being of sound
mind and disposing memory, do make my last will and testament
in manner and form following: After all my just debts and

7In re Stumpenhousen’s Estate, Cas. 492, 13 Prob. Rep. Ann. 148.
108 Iowa 555, 79 N. W. 376, 4 Prob. 9 Cowley v. Knapp, 42 N. J. L. 297,
Rep. Ann. 709. 1 Am. Prob. 390.

8 Peet v. Peet, 229 Ill. 341, 82 N. E. 10 Byers v. Hoppe, 61 Md. 206, 48
376, 13 L. R. A. (N. S.) 780n, 11 Ann. Am, Rep. 89, 4 Am. Prob, 218.
787 ENTIRE WILLS AND ADJUDICATED FORMS § 1189

funeral expenses have been paid, I give and bequeath to my
daughter, I. A. S. S., and her children, all of my property, real,
personal and mixed. I appoint H. H. S. sole executor of this my
last will and testament without bond as I have confidence in him.

This is my own handwriting, and needs no witness. In testi-
mony whereof I hereunto set my hand and seal, and publish and
decree this to be my last will and testament.

This Jan. 25th, in the year of our Lord, one thousand eight
hundred and ninety-seven. Be Bea

[Signed.]

§ 1189. Will—Fee simple to wife—(1) I, J. A., of the
county of Fountain and state of Indiana, do make and publish
this, my last will and testament: I give and bequeath to my wife,
N. A., all my property, both real and personal, of which I am
now possessed, requiring her to pay all my just debts and funeral
expenses. (2) It is my desire that the business be so conducted
that all of our children, or their heirs, shall finally share equally
in the distribution of our property. (3) I would advise that the
said N. A. shall at some suitable time call to her counsel two or
three good discreet men to assist her in making a proper and
equitable division of the real estate, as well as other property
that she may think proper, among all the children aforesaid; re-
taining, however, if she choose to do so, the title and possession
of said property to herself until after her death.

(4) Nothing in the above shall be construed to affect a per-
fect and indefeasible title to her, the said N. A., which this will
conveys to her, to all the said property, both real and personal,
with the right to control, sell, and ccnvey the same at her pleas-
ie

§ 1190. Will not in technical legal terms, but explicit, giv-
ing life estate to children, remainder to grandchildren, living
at death of testator.—(2) I want M. J. J., my faithful friend
and sister-in-law, to have and be supported out of my effects so

11 Sims v. Skinner, 118 Ky. 573, 81 12Lumpkin v. Rodgers, 155 Ind.
S. W. 703, 26 Ky. L. 443, 9 Prob. Rep. 285, 58 N. E. 72, 6 Prob. Rep. Ann. 69,
Ann, 278.
§ 1191 WILLS 788

long as she shall live, should she not otherwise have a sufficient
support. (3) I want half of all the property that I now own, or
may own at my death, to be set apart for the benefit of the heirs
of my son S. H. J. My son S. H. J. can have and control said
property during his natural life, but said property shall not be
subject to the debts of S. H. J. If at his death his wife shall be
living, she can control the property as long as she remains the
widow of S.H. J. (4) I want the remaining half of my prop-
erty at my death to be set apart for the benefit of the heirs of
E. G. I want S. A. G., the husband of my daughter E. G., to
hold and control said property as long as he remains her husband,
but said property shall not be subject to or be taken for his debts.
Now, if my daughter should die, and her husband, S. A. G.,
should marry again, then said property shall be taken charge of
by the executors of this will, and used for the benefit of the
heirs of E.G. (5) I want the executors of this will (before my
estate is divided) to pay J. M. J., B. F. J. and N. J. S. the sum
of one hundred dollars each. (6) I leave my dutiful son, S. H.
J., and my beloved nephew, J. M. J., and my son-in-law, S. A. G.,
executors of my will.**

§ 1191. Will with remainder to church.—I, T. S. B., of
the city of Baltimore, in the state of Maryland, do make this
my last will and testament, in manner following, that is to
say: After the payment of all my just debts and funeral
expenses, I give, devise and bequeath all of my estate and
property, real and personal wheresoever the same may be unto
J. T. Y., my brother E. B., M. D., and F. L., and the sur-
vivors or survivor of them in trust and confidence to hold the
same for the term of my wife’s, S. C. B., life, and after paying
the taxes and necessary expenses thereon, to pay her out of the
net income of my estate the sum of one thousand and ninety-five
dollars-per year during her natural life in quarterly instalments
of two hundred and seventy-three dollars and seventy-five cents
each; and the remainder of the income to be invested by them and
held for the purpose of making good any deficiency of the in-
come to my wife, S. C. B., so that she will receive one thousand -

13 Wyman v. Johnson, 68 Ark. 369, 59 S. W. 250, 6 Prob. Rep. Ann. 202.
789 ENTIRE WILLS AND ADJUDICATED FORMS § 1192

and ninety-five dollars for every year during her natural life and
at the death of my wife S. C. B. said trust shall cease and the
property No. 724 West Lexington street and No. 202 Myrtle
avenue shall go to my brother E. B. absolutely. Five thousand
dollars shall go to C. G. B., nephew of my first wife C. B., and
four thousand dollars shall go to in equal shares to T. B. S. and
C. B. S., children of G. P. S. and his wife M. C. S., and the rest
and residue and remainder of my estate shall go to the home for
the aged of the Methodist Episcopal Church located at the south-
west corner of Fulton avenue and Franklin street for the purpose
of a dormitory to be known as a C. B. Dormitory. I do further
give to the trustees named in this my last will and testament and
to the successors in said trust and to the survivors or survivor of
them all powers which may be necessary for the preservation,
direction, repair, management or profitable use of any property ;
real or personal devised by me and bequeathed by me and re-
maining under their or his control, until such time as their re-
spective duties and the duties of each one of them in relation to
the said trusts and property shall be fully performed. I consti-
tute and appoint J. T. Y., E. B. and F. L. to be the executors of
this my last will and testament (my brother E. B. not to receive
commission as trustee and executor as the provision made for him
is to be in lieu thereof) hereby revoking all other wills and
codicils by me heretofore made.™*

§ 1192. Will—Directions to executors to retain real
estate two years, then to sell it—A. First. I give and be-
queath to my said niece A. P., all household furniture, books and
pictures which I may possess at the time of my demise.

A. Second. I desire and direct that my executrix and execu-
tor shall take in charge all my property, real and personal (ex-
cept that which I have hereinbefore bequeathed to A. P.), and to
collect all the rent and other income from the same, and to defray
all expenses thereon, including interest on mortgages, and to re-
new mortgages and to execute new mortgages thereon when nec-

14 Home of Aged v. Bantz, 107 Md. 543, 69 Atl. 376, 13 Prob. Rep. Ann,
543.
§ 1193 WILLS 790

essary for the maintenance of the same for a term of two years
from the date of my demise.

A. Third. I desire that my executrix and executor, at the ex-
piration of two years from the date of my demise, shall have the
property sold at public auction or otherwise, and after paying all
indebtedness standing against it, to divide the net proceeds of
such sale into six equal parts or divisions, and to distribute the
same, share and share alike, to my heirs and devisees as here-
inafter set forth.

B. First. I give, bequeath and devise to my niece, A. P., of
this city and county of San Francisco, California, one-sixth part
of my estate.

B. Second, etc. Giving, in similar terms, an undivided sixth
of his estate to each of his four surviving brothers and sisters,
and an undivided sixth to the children of a deceased sister.*

§ 1193. Direction for sale of real estate by executors—
Estate in children vesting at time of distribution.—Third.
As soon as practicable after my decease I direct that all other real
estate owned by me not mentioned in the first and second clauses
of this will be sold by my executors hereinafter named, and the
proceeds thereof, together with the proceeds of any personal
property that I may have, and any money, right and credit to
me belonging, disposed of as follows: First, a sum not to exceed
one thousand five hundred dollars to be invested in the purchase
of a residence in Lebanon, Illinois, for the use of my wife, J. W.,
so long as she lives and remains my widow; second, the balance
to be divided among such of my children as may be living at that
time, and surviving descendants of children, in case any of my
children may have died leaving children or descendants of chil-
dren then surviving and living at that time, the descendants of
children to take per stirpes; but in the distribution under this
clause I charge my son W. H. W. with five thousand five hun-
dred forty-six dollars, he to get nothing under this clause except
in the excess after the three other shares have reached the sum
with which I herein charge him.

15In re Pforr’s Estate, 144 Cal. 121, 77 Pac. 825, 9 Prob. Rep. Ann.
365.
791 ENTIRE WILLS AND ADJUDICATED FORMS § 1194

Fourth. During the continuance of the estate of my wife,
J. W., in the lands described in the first clause of this will and in
the house directed to be purchased for her in the third clause of
this will, I direct that she pay the taxes thereon and repairs on
said house.

Fifth. On the remarriage or death of my wife, J. W., the lands
described in the first clause of this will and the house directed in
the third clause of this will to be purchased for her use so long
as she lives and remains my widow, shall be sold by my executor
hereinafter named and the proceeds thereof distributed in the
manner provided for the distribution under the third clause of
this will, and in this distribution my said son W. H. W. will be
charged with any deficiency of said five thousand five hundred
forty-six dollars that his share of said distribution under the third
clause of this will fails to meet.

Sixth and lastly. I hereby nominate and appoint my son J. A.
W. and my daughter I. M. W., my only children residing in this
county, executor and executrix of this my last will and testament,
directing that they shall not be required to give bond, revoking
any former wills by me made and ratifying and confirming this
and none other to be my last will and testament.’®

§ 1194. Will devising property for life with power of dis-
position of fee.—I, J. S. D., of St. Louis, Mo., being of sound
and deposing mind, do make, and publish, and declare the follow-

_ing as my last will and testament, to wit:

First. I direct all my debts justly due to be paid.

Second. I give and devise to my wife my residence and furni-
ture for sole use and the use of my children for and during her
natural life, and such other interest in my estate as the law will
allow and may be allowed according to the within or attached
contracts. All the residue of my estate, personal and mixed, I
give and devise equally to my children, J. S. D. and A. L. D.,
during their natural lives, respectively, with remainder to their
heirs or his or her heirs of their body, but with full power and

16 Starr v. Willoughby, 218 Ill. 485, 75 N. E. 1029,2 L. R. A. (N. S.) 623,
11 Prob. Rep. Ann. 220,
§ 1195 WILLS 792

authority to each of my said children after their majority to dis-
pose of the absolute estate in fee simple title, and on the death
of either the survivor to inherit. But, should both my children
die without issue of their body, then and in that event my grand-
nephew, C. F. L., shall inherit all my property.

I appoint M. L. G. and J. R. L. executors of this my last will.

In testimony whereof, I have hereunto set my hand and seal
this 5th day of April, 1878. Je. D;

[Seal.]

Subscribed, sealed, and declared by the above-named J. S. D.
as and for his last will and testament in our presence and in the
presence of each other, herewith subscribing our names as attest-
ing witnesses thereto, this 5th day of April, 1878.

Ie tack
ede
T. 2. MA

§ 1195. Determinable fee and executory devise.**—Sec-
ond. After the payment of such funeral expenses and debts, I
give, devise, and bequeath unto my beloved wife, M. G., the fol-
lowing real estate, to wit [describing real estate] ; to have and to
hold the same during her natural life, provided she shall remain
my widow, together with all my personal property, consisting of
moneys, rights, and credits and stock, which latter consists of
ten (10) shares in the St. Clair County Agricultural and Me-
chanical Society, one share in the Urbana Plank Road Company,
two shares in the Belleville and St. Louis Rock Road Company,
and one share in the Westfield Plank Road Company ; all my live
stock, consisting of mules, cattle, etc.; also all the household fur-
niture and other articles of personal property not herein enu-
merated or otherwise disposed of in this will, after having dis-
posed of a sufficient amount of my personal property, should it be-
come necessary to dispose of any of the same, to pay and discharge
the expenses and debts aforesaid; and at her death, or in the
event she should again marry, it is my will that the property

17 Grace v. Perry, 197 Mo. 550, 95 18 See ante, § 242,
S. W. 875, 12 Prob. Rep. Ann. 79,
793 ENTIRE WILLS AND ADJUDICATED FORMS § 1196

aforesaid to her bequeathed shall go unto and be equally distrib-
uted among my minor heirs, and, if no minor heir or heirs are at
the time living, then to be equally distributed among M. L. G.
and C. E. G., M. O. G., M. G,, P. C. G,, and F. G. G., and to their
heirs and assigns, forever. And it is my will that my wife, M. G.,
take the above described real estate in lieu of her dower in all
other of my real estate devised by this will.

Fifth. I give, devise, and bequeath unto my daughter M. L. G.,
and to her heirs and assigns, forever, the following described real
estate, to wit [describing same]. And it is my will that if my
daughter M. die without leaving issue, then the property hereby
devised to her shall go to C. E.G., M. O. G., M. G., P. C. G., and
F, G. G., to their heirs and assigns, forever.

Sixth. I give, devise, and bequeath unto my two daughters,
C. E. G. and M. O. G., unto their heirs and assigns, forever, the
following described real estate, to wit [describing the same].
And it is my will that the said property hereby bequeathed shall
not be sold until the younger, M. O., shall become of lawful age;
and, in case one should die before attaining her lawful age, the
surviving sister shall have and take the other share, to have and
to hold the same unto herself, her heirs and assigns, forever.

Seventh. I give, devise, and bequeath unto my three sons,
M.G., P. C. G., and F. G. G., and to their heirs and assigns, for-
ever, the following described real estate [describing by proper
description about one hundred ten acres of land]. It is my will
that upon the death of either of them the surviving brother or
brothers shall take such share, like and like; to have and to hold
the same to him or them, or his and their heirs forever; and, in
case all three should die without issue, then it is my will that the
above-mentioned property in this bequest go to J. E. G. and M.
L. G., their heirs and assigns, forever.”

§ 1196. Will—Gift of use.°—(1) I give and bequeath to
the children of N. B. (daughters), E. and S., five hundred dol-

19 Gannon v. Peterson, 193 Ill. 372, 20 See ante, § 243.
62 N. E. 210, 55 L. R. A. 701, 7 Prob.
Rep. Ann. 254,
§ 1197 WILLS 794

lars each. (2) I give and bequeath to the daughters of my de-
ceased sister B. A. (name forgotten), or her legal heirs, one
thousand dollars. (3) I give and bequeath to my beloved wife,
J. C. H., ten-twentieths of the remainder of my estate, real and
personal. (4) I give and bequeath to my brother J. H. the use
of one-twentieth of remainder of my estate, real and personal,
at his decease to go to his legal heirs. (5) I give and bequeath to
my brother Wm. C. H. the use of one-twentieth of remainder of
my estate, real and personal, at his decease to go to my brother
J. H.’s children, share and share alike. (6) I give and bequeath
to my brother M. L. H. the use of one-twentieth of remainder
of my estate, real and personal, at his decease to go to his legal
heirs. (7) I give and bequeath to my sister J. W. one-twentieth
of the remainder of my estate, real and personal, at her decease
to go to her legal heirs. (8) I give and bequeath to the legal
heirs of my brother P. H. (deceased) two-twentieths of: re-
mainder of my estate, real and personal, share and share alike.
* * * (10) I give and bequeath to the legal heirs of my
brother M. L. H two-twentieths of remainder of my estate, real
and personal, share and share alike. (11) I ordain and appoint
my wife, J. C. I, executrix, and my nephew A. W. H., executor,
of this, my last will and testament, without bonds.”*

§ 1197. Will—Proceeds of real estate subsequently sold
by testator passing as personalty.—In the name of God,
Amen, I, J. S., of Ligonier, Noble county, Indiana, do make and
publish this as my last will and testament :

Item 1st. I give and bequeath to my beloved wife all the per-
sonal property which I may have at my death.

Item 2d. I give and devise to my beloved wife lot numbered
twenty-two, in Chapman’s addition to the town of Ligonier, in
Noble county, Indiana, during her natural life.

Item 3d. It is my desire that all my just debts, including my
last sickness and funeral expenses, be paid by my wife out of
my personal property, which shall include all my growing crops

21 Healy v. Healy, 70 Conn. 467, 39 swering that description at testator’s
Atl. 793, 3 Prob. Rep. Ann. 221 (“Le- death, and that they take per stirpes).
gai heirs” held to refer to persons an-
795 ENTIRE WILLS AND ADJUDICATED FORMS § 1198

and crops on hand, and notes, save such as I hold against my own
children, which notes shall be treated as advancements, and be de-
ducted out of their respective shares.

Item 4th. It is my desire that as soon after my death as pos-
sible my executrix shall sell all of my real estate except lot num-
bered twenty-two, in Chapman’s addition to Ligonier, upon such
time and terms as may seem to him or her for the best interest
of my heirs, and out of the sale of the said real estate there shall
be paid to my beloved wife the sum of three thousand dollars,
which sum of three thousand dollars shall be paid to her out of
the first payment made thereon.

Item 5th. The balance that may remain of my real estate
after paying my said wife the sum of three thousand dollars, shall
be equally divided between my children or their heirs, share and
share alike, first deducting from their respective shares the sum
or sums already advanced by me.

Item 6th. At the death of my said wife lot numbered twenty-
two, in Chapman’s addition to Ligonier, I shall give and devise
to my children or their heirs, share and share alike.

Item 7th. I do hereby appoint my wife, N. S., executrix of
this, my last will and testament, with full power to do and to act
as such executrix.

Codicil. I do hereby give and devise to my beloved wife the

‘lot on which we live, to wit, lot numbered fifty-seven, in the orig-
inal plat of the town of Ligonier, in Noble county, Indiana, dur-
ing her natural life, and at her death the same shall go to my
heirs, share and share alike, as set forth in the will.”

§ 1198. Will disposing of several plantations—Power to
sell and reinvest.—State of South Carolina, County of Beau-
fort. Know all men by these presents, that I, H. C. R., of the
county of Beaufort and state of South Carolina, being in ill
health but of sound and disposing mind and memory, do make
and publish this, my last will and testament, hereby revoking all
former wills by me at any time heretofore made: And as to my
worldly estate, and all the property, real and personal, or mixed,

22 Simmons v. Beazel, 125 Ind. 362, 25 N. E. 344, 7 Am. Prob. 408,
§ 1198 WILLS 796

of which I shall die seized and possessed, or to which I shall be
entitled at the time of my decease, I devise, bequeath, and dispose
thereof in the manner following, to wit: First. My will is that
all my just debts and funeral expenses shall by my executor
(hereinafter named) be paid out of my estate as soon after my
decease as shall by him be found convenient. Item. I give, de-
vise, and bequeath to my beloved husband, J. H. R., seven thou-
sand dollars, four thousand cash, balance in annual instalments
from net proceeds from estate. Item. I give, devise, and be-
queath to my beloved children, W., A., N., J., M., L., and such
child or children as may hereafter be born to me, all the balance
of my estate, real, personal, and mixed, to be divided in equal
proportions, share and share alike, as hereinafter directed, said
estate consisting of all the following parcels or tracts of land:
First. That portion of land, situate in county and state, aforesaid,
and known as “Joint Stock Plantation.” Second. That portion
of land, situate in the same county and state, and known as “New
Castle Plantation.” Third. That portion of my land, situate in
same county and state, known as “Sandy Hook Plantation.”
Fourth. That portion of my land, situate in same county and
state, containing one hundred acres, more or less; originally cut
off from the Sandy Hook plantation, on which my residence
stands, and known as “Ivanhoe,” together with all the stock,
provisions, horses, and mules, farming implements, gears, wagons,
and all the goods and chattels connected with or attached to the
aforesaid plantation, and all the buildings and appurtenances
thereon, and also balance of stock, moneys on hand and due me
at the time of my decease. And I hereby do direct that my
executor, hereinafter named, shall, as soon as practicable, collect
all the moneys that may be due me at the time of my decease, and
invest the same for the best interest of my children aforesaid
and mentioned, in such manner as his judgment may suggest. I
also direct, and fully empower and authorize, that my executor
shall, at any time previous to the twenty-first birthday of my
youngest child, sell or dispose of any portion of my above devised
and bequeathed premises (except the plantation known as “New
Castle,” and except the place known as “Ivanhoe”), and reinvest
797 ENTIRE WILLS AND: ADJUDICATED FORMS § 1198

in such manner as his discretion shall suggest for the best in-
terest of said beloved children. And I hereby give him full
power and authority to do the same. I direct that the place
known as “Tvanhoe” and the plantation known as “New Castle”
shall not be sold or otherwise disposed of, except the same be
ordered by a court of competent jurisdiction. Proceeds to be
applied, in the event of such sale, strictly in accordance with the
decree of said court for the benefit of my aforesaid children.
And that any portion or all of the balance of my estate shall be
disposed of or sold at the discretion of my said executor as afore-
said. I hereby reiterate and confirm it. It is my will that no
actual division of my estate take place until my youngest child
shall have attained the age of twenty-one years, but, being un-
certain what contingencies may arise, I hereby direct that my said
executor shall have full power and authority to deliver to each of
my said children the share or proportion of my estate due him
or her, as they successively attain to the age of twenty-one years,
if in his judgment their interest will be thus best subserved. Im-
pressed with the mncertainty of human life, it is my will, in the
event of the death of either of my said beloved children, without
issue or before attaining his or her majority, that his or her share
shall be equally divided among my surviving children; and should
my beloved husband, J. H. R., survive all my children (they
dying without issue), it is my will that the entire estate shall pass
to my said beloved husband, J. H. R.; and shall my said children
survive the said J. H. R., leaving no issue, and all die before at-
taining their majority, it is my will, and I hereby direct, that the
portion of my estate hereinbefore bequeathed to my children,
said to be equally divided between Mrs. K. D., of Scriven county,
Georgia (formerly Miss K. McC), and H. C., daughter of Mr.
and Mrs. K. A. C., also of Scriven county, Georgia, unless other-
wise changed and directed by the will of my beloved husband,
J. H. R.; and I hereby give my beloved husband full power and
authority to change it if in his judgment he may think it best.
Lastly. I do hereby and appoint my said beloved husband,
J. H. R., to be the executor of this, my last will and testament,
conferring upon him full power and authority to exercise his

 
§ 1199 WILLS 798

discretion as aforesaid, and to appoint a successor or successors,
with power as he shall by will direct. In testimony whereof, I,
the said H. C. R., have hereunto this, my last will and testament,
contained in two sheets of paper and including five pages, and to
every page, subscribed my name and to this, the last sheet thereof,
subscribed my name and affixed my seal. This twenty-sixth day
of March, in the year of our Lord one thousand eight hundred
and seventy-seven (1877).

Li Se] Ei. GR.

Signed, sealed, published, and delivered by the said H. C. R.
as and for her last will and testament, in the presence of us, who,
at her request and in the presence of each other, have subscribed
our names as witnesses thereto. N.R. R., H. H. McC., J. E. KA

§ 1199. Will—Words in brackets show construction
placed on will by court—kKnow all men, that I, J. A. T., of
Hartford, Ky., being of sound mind and disposing memory, but
mindful of my mortality, do make, ordain and publish this in-
strument as my last will and testament in manner and form as
follows:

I will and desire that my just debts, if any, be paid in full.

I will and devise to my beloved wife, M. C. T., my house and
lot now occupied by myself and family as a residence, situated in
Hartford, Kentucky, to be used and enjoyed by her for and dur-
ing the period of her natural life and at her death said house
and lot is to descend to and vest in my three daughters, S. T., E.
T. and L. T., jointly, and in case of the death of either, or any
of them, without issue, the survivor or survivors shall hold the
same jointly, but may sell and convey one to another or to any
one else, they all agreeing to said sale.

I will and direct that my executor shall have the power to con-
vert into money any [all] property, real or personal, of which I
may die possessed, and divide and distribute as follows:

To my little granddaughter, E. F. T., one-fifth of a ($2,000)
two-thousand-dollar life policy. In case the policy should not be
paid in full, then my executor shall, out of my estate, make the

23 Allen v. Ruddell, 51 S. Car. 366, 29 S. E. 198, 3 Prob. Rep. Ann. 271.
799 ENTIRE WILLS AND ADJUDICATED FORMS § 1200

amount for her, four hundred ($400) dollars and hold the same
in trust by them for her until she should become of age or mar-
ried, and in case of her death before arriving at the age of
twenty-one years or her marriage, then this four hundred ($400)
dollars shall become an asset of my estate for my other heirs and
in order to carry into effect my will, I hereby vest my executors
with power to sell and convey any [and all] real estate, which
I may own at my death, and make deeds to same. It is my will
and desire that my wife shall have and retain all my household
and kitchen furniture.

It is my special desire that my wife, M. C., and three daughters,
S., E. and L., shall share equally in the distribution of my estate
after the bequests [and devises] already made are complied with,
and in case of the death of any of them without issue, those sur-
viving, or their issue, shall hold the same.

Having full confidence in the integrity and capacity of my
wife and daughter, E., I hereby nominate them executors of this
will, and request that no bond or surety be required of them. It
is my desire that no public sale be made of my personal estate,
but that my executrix make out an inventory of my personal
estate not included in the foregoing bequests to my wife, and file
same in the county court clerk’s office within a reasonable time,
but such inventory to be attested by my executors only.

Witness my hand this April 30th, 1901. ALT

[Signed.]

§ 1200. Will with codicil, which creates an implied charge
on entire estate.*”°—First. I desire that all my just debts be
paid including my funeral expenses.

Second. I bequeath and devise to my daughter, M. M. C.
(legally adopted by my wife and myself, her former name being
R. C.), all the remainder of my property of every kind, both
personal and real, to have and to hold and do with as may seem
best to her, and she shall be my sole legatee.

Third. I desire, and do hereby nominate and appoint E. R. L.

24Thomas v. Thomas (Ky.), 110 25 See ante, § 322,
S. W. 853, 13 Prob. Rep. Ann. 511.
§ 1201 WILLS 800

as my executor of this my last will and testament, and to give
such bond as the court may direct.

Fourth. I desire that the Independent Order of Odd Fellows
of Columbus Junction, Iowa, shall take charge of my remains
and direct the funeral services.

Fifth. I desire that a suitable tombstone be placed at the
grave of myself and wife, not to exceed the sum of one hundred
dollars each, and on my monument I desire to have the emblem
of the I. O. O. F. and to be similar to that of R. C.’s monu-
ment in the Columbus City Cemetery.

Codicil.

I, J. L. C., hereby amend my will heretofore made, by adding
this codicil, to wit: I give and bequeath my sister, E. C.,
($1,000.00) one thousand dollars, to be paid her by my executor,
and except for this change, I re-adopt my former will.”°

§ 1201. Will—Trust for wife and daughter—Remainder
to heirs on failure of issue.—I give, devise and bequeath to
my nephew, S. S. B., of Boston, all the rest and residue of my
estate, real and personal, in trust to invest the same, and to keep
the same safely and securely invested, and after paying taxes,
insurance and all other charges, to pay over the net income
thereof, one-half to my wife, and the other half to, or for the
benefit of my daughter, as hereinafter directed, during the joint
lives of the two; and if my daughter shall die during the life
of my wife, and leave issue, then to pay to said issue one-half
of said net income, and the other half to my wife during her
life; and if my wife shall die during the life of my daughter, and
leave issue by me, then to pay to said issue said one-half of said
income, until such issue shall attain the age of twenty-one years,
then to pay to him or to her one-half of the principal of the
‘fund; and in case my daughter shall die during the life of my
wife, without leaving isstie; or in case she leave issue, and such
issue shall not survive my wife; or if my wife should die during

26 Lacey v. Collins, 134 Iowa 583, 112 N. W. 101, 13 Prob. Rep. Ann.
144,
801 ENTIRE WILLS AND ADJUDICATED FORMS § 1202

the life of my daughter without leaving issue by me, or in case
she leave such issue, and such issue shall not survive my daugh-
ter, then, and in either of said cases, to pay the whole of the said
net income to the survivor of my said wife and daughter; and
upon the decease of such survivor leaving issue to distribute the
principal of the trust fund among my issue; and if on the decease
of such survivor there should be no living descendant of mine,
then to distribute said principal among my own right heirs, unless
my said adopted son, T. B., Jr., or some issue of his, be then
living, and in that case to pay over to him, if living, or to his is-
sue, if he be not then living, one-half part of said principal fund.
So long as the condition of the mind of my daughter is such
as to require a guardian for her, I direct the said trustee to pay
her guardian so much of the income hereinbefore appropriated
to her as may be necessary for her comfortable maintenance and
support, and to add the balance of said income if any there be, to
the principal of the fund; and if thereafter there shall be a de-
ficiency of income in any year, or if from any other cause, a sum
greater than her share of the annual income of the fund, should
be deemed necessary or desirable for her comfort, then the trus-
tee may devote such additions or reserves of income to such pur-
pose; but if no such exigency should arise during the life of
my daughter, the said reserves shall be disposed of as if they
formed part of the original principal of the trust fund upon her
-decease.”* :

§ 1202. Will under which, on death of nephew before tes-
tatrix, his legacy lapsed and was distributed as intestate prop-
erty.—I, M. T. H., of the city of Raleigh, do make and de-
clare the following to be my last. will and testament :

Item 1. I wish my just debts to be paid out of any moneys
I may leave or have on hand or in bank at my death, and if
they prove insufficient, I wish my houses and lots to be kept
rented out until the rents, which shall be collected by my execu-
tor for the purpose, shall be sufficient to pay the residue.

27 Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 81 N. E,
654, 13 Prob. Rep. Ann. 80.

51—Tuomp. WILLs.
§ 1202 WILLS 802

Item 2. I will and direct that a suitable monument shall be
erected at my grave and that my executor shall expend of the
assets of my estate (about) six hundred dollars in the payment
of my funeral expenses and the costs of such monument and its
erection; and I give to the Raleigh Cemetery Association one
hundred ($100.00) dollars on the condition that it will perpet-
ually keep the lot on which my body shall be buried in good con-
dition.

Item 3. I give and devise to my niece, E. W., and my
nephew, G. H., my house and lot in the city of Raleigh, at the:
corner of Wilmington and Jones streets, and now occupied by
P. H. A., in fee simple to be theirs in possession as soon as my
‘executor shall have collected moneys sufficient to pay my debts
in the manner provided in item one.

Item 4. I give and devise to the executor hereinafter ap-
pointed my other two houses and lots in said city, one fronting
on Wilmington street and the other fronting on Jones street,
with their appurtenances, in trust that he will sell the same in
‘such manner and upon such terms as to him may seem best and
apply the proceeds, first, in the payment of the seven hundred
dollars as designated in item 2 and then in discharge of the pe-
cuniary legacies hereinbelow provided for.

Item 5. I give and bequeath to my brother, F. H., and my
nephews, F. H., It, S: Hi, H. HL, M. A. 5. B. and J. B., each
five hundred dollars ($500.00). My brother, F. H., if alive at
my death, to receive his legacy as soon as possible after the sale
of said houses and lots, out of the cash payments. If he shall
have died before my death, I give the legacy intended for him
to the Trustees and Vestry of Christ Church, of which I am a
member. Should the residue of the proceeds be insufficient to
pay the legacies to my said nephews in full, they are to abate
pro rata; and if there shall be a surplus, I give and bequeath the
same to the said Trustees and Vestry of Christ Church. The
legacy to said church to be used and employed in such manner
and fer such purposes as to the rector and vestry may seem best.

Item 6. I give and bequeath my personal effects and estate as
follows: My camels hair shawl to my niece, L. M.; my bedroom
803 ENTIRE WILLS AND ADJUDICATED FORMS § 1203

furniture in the room generally occupied by me, to my niece,
E. H.; my carved bedstead and wardrobe of the same set with
it to my niece, M. H.; all my silver forks to my niece, E. W.;
twelve dessert silver spoons, to be selected by my executor, to
my cousin, F. P., and all the residue of said personal: effects to
my nieces, L. M., E. Y. and E. H., to be equally divided between
them.

Item 7. I appoint R. H. B., Esq., of the city of Raleigh, the
executor of this my will.

In witness whereof I have hereunto set my hand and seal,
this 14th day of June, 1895.*

§ 1203. Will giving life estate with power to sell.”—1.
After the payment of my debts and funeral expenses, I devise
to my beloved wife, C. J., during her life, all my real and per-
sonal estate with full power to sell, mortgage, or dispose of, as
she may see fit, all or any part of the property in her discretion.
At her death all that remains of the property shall be equally
divided among my children and their heirs, they taking per
stirpes, subject to the limitation and restrictions hereinafter ex-
pressed.

2. To J. 1. J. J., I devise, absolutely and without restriction,
an undivided one-fifth of the property remaining undisposed
of at the death of my wife. .

3. I devise to H. J., Jr., absolutely and without restriction,
an undivided one-fifth of the property remaining undisposed of
at the death of my wife.

4. I devise to R. W. J., for her sole and separate use, an un-
divided one-fifth of.the property remaining undisposed of at
the death of my wife; provided, said R. remains single. Should
she marry, then her share of the estate shall vest in J. I. J. J. and,
H. J., Jr., in trust for her sole and separate use during her life
and, upon her death, the title shall vest absolutely in her chil-
dren; or, if she die without children, then her share shall be
equally divided among her brothers and sisters and, if any of

28 Battle v. Lewis, 148 N. Car. 142, 29 See ante, § 237,
61 S. E. 634, 14 Prob. Rep. Ann. 310,
§ 1204 WILLS 804

them be dead at that time leaving issue, his or her share of this
part of the estate shall go to his or her children. The trustee
may, with R.’s written consent, sell and convey or mortgage her
share or any part thereof in fee or otherwise and pay her the
proceeds or reinvest the same as to them may seem best for her
interest. Her husband, if she have one, shall have no right to
or title in her share of the estate and shall have no control over
it whatever. ;

5. I devise to J. I. J. J. and H. J., Jr., an undivided one-fifth
of my estate remaining undisposed of at the death of my wife
in trust for the sole and separate use of my daughter E. .M.
during her life, and upon her death the title shall vest absolutely
in her children, or, if she die without children, then the title to
her share shall vest in her surviving brothers and sisters, and if
any of her brothers and sisters be dead, their share of this part
of the estate shall go to their children. The trustees may, with
E.’s written consent, sell and convey or mortgage her share or
any part thereof in fee or otherwise and pay her the proceeds
or reinvest the same as to them may seem best for her interest.
Her husband shall have no right to or title in her share of the
estate and no control whatever over it.

6. [This section is identical with section 5, except that it
relates to H. H. M.]

9. I hereby appoint H. J., Jr., and J. I. J. J. my executors,
and request that they may be permitted to qualify as such with-
out security.*°

§ 1204. Will—Life estate to wife and daughter, remain-
der to go according to intestate laws.**—First. I direct that
all my just debts and funeral expenses be paid by my executor
out of my personal estate. .

Second. I will and direct that as soon as convenient after my
death, my executor cause to be placed in an appropriate place or
places on my monument on lot seventy-two, block L, Valley

30 Pennsylvania Land Co. v. Justi, 31 See ante, § 236.
121 Ky. 765, 90 S. W. 279, 28 Ky. L.
669, 11 Prob. Rep. Ann. 447,
805 ENTIRE WILLS AND ADJUDICATED FORMS § 1204

City Cemetery, my name and date of my birth in raised letters,
viz.: “A. V. D., born December 25th, 1820.”

Third. I give, grant, and bequeath to the Fourth Dutch Re-
formed Church of the city of Grand Rapids, state of Michigan,
the sum of five hundred dollars, to be paid by my executor out
of the rents, issues and profits of my estate in the manner fol-
lowing, to wit: Twenty-five dollars per year, for a period of
twenty years.

Fourth. My son-in-law, P. D., is indebted to me in the sum
of three thousand dollars ($3,000.00) more or less, for ad-
vancements made to him, and it is my will that said debt be sat-
isfied and forgiven, and I direct my estate and the executor
thereof to make no effort to collect said debt from him, and that
all instruments and evidence of such indebtedness be canceled by
my executor.

Fifth. I give, devise and bequeath my organ to my daughter,
W. S. V. D., but in case she does not wish the same and is will-
ing to part with it, then, in that case, I give, devise and bequeath
said organ to L, T. A. * * *

Seventh. I give, devise and bequeath all the rest, residue and
remainder of all the rents, issues and profits of all my personal
and real estate wherever the same may be situated, to my wife,
K. J. V. D. (whose maiden name was K. J. G.) for her sole
and separate use during her life, but upon the following con-
ditions, viz.: That she shall remain my widow; that she shall
not oppose or contest my last will and testament nor to refuse
to execute and sign any papers necessary for her to sign and
execute in order to make perfect conveyances of any real estate
which IT may have contracted to be disposed of, the same to be
held and enjoyed by my said wife in lieu of her dower interest
in my said estate. In case my said wife shall remarry, oppose
or contest this will or refuse to execute and sign any necessary
papers to make perfect conveyances of real estate, as in this
paragraph mentioned, then in such case, I give, devise and be-
queath to my said wife one-third of all said rest and residue of
all rents, issues and profits of my said personal and real estate
for her sole and separate use during her life, and the remain-
Lt

1205 WILLS 806

ing two-thirds thereof I give, devise'and bequeath to my sole
surviving daughter, W. S. V. D., for her sole and separate use
during her life.

Eighth. From and after the death of my said wife, I give,
devise and bequeath all of the said rest and residue and. re-
mainder of all the said rents, issues and profits of all my said
personal and real estate wherever the same may be situated, to
my said sole surviving daughter, W. S. V. D., for her sole and
separate use during her life.

Ninth. From and after the death of both my said wife and
daughter, it is my will and I hereby direct, that all my property,
both real and personal, wheresoever the same may be situated,
and not herein otherwise disposed of, shall be disposed of as fol-
lows, viz.: One-half thereof I give, devise and bequeath to
such person or persons as shall by the laws of the state of Mich-
igan then in force be entitled to inherit real estate from myself
and in the same proportions, and that the other one-half thereof
I give, devise and bequeath to such person or persons as shall
by the laws of the state of Michigan then in force, be entitled to
inherit real estate from my said wife and in the same propor- .
tions, provided that in case my wife’s sister, E. T., shall not be
living at the date of the death of my said wife and daughter, or
that in such case the share or proportion of my estate that would
go to E. T. under this paragraph had she been living at that time,
shall go and belong to the then living daughters of said E. T.
in equal shares; the sons of said E. T. being hereby expressly
excluded from inheriting anything under this will, * * *?

§ 1205. Will—Charge of support for one living in fam-
ily.*—I, N. M., being of sound mind and disposing memory,
and knowing the uncertainty of human life, do make and de-
clare this, my last will and testament, revoking all others, in
manner and form as follows, to wit:

(1) I appoint my brother, J. M., as the executor of this, my
last will and testament.

82Van Driele v. Kotvis, 135 Mich. 33 See ante, § 323.

181, 97 N. W. 700, 9 Prob. Rep. Ann,
648.
807 ENTIRE WILLS AND ADJUDICATED FORMS § 1206

(2) I will and direct that my said executor shall dispose of
all the surplus hay and grain, if any, on hand, and apply the
proceeds thereof to paying my part of just debts as soon after
my decease as he can.

(3) I direct that my executor shall take proper care of L. B.,
supplying her with comfortable wearing apparel, food, etc., as
long as she remains a member of my family, or until she be-
comes to be twenty-one years of age. I desire to be distinctly
understood that her support shall cease as soon as she arrives at
the age of twenty-one years.

(4) I will and bequeath to my beloved wife, C. M., my en-
tire interest in my real estate, and also in my personal property,
as long as she remains my unmarried widow, or until her de-
cease, should that occur before she marries. Should she marry,
then she forfeits her entire interest to the property, and after
her death or marriage the entire property, both real and per-
sonal, reverts to my brother, J. M. I desire to be understood
that my brother, J. M., is to manage the business on the farm
just as it has been done during my natural life.

In witness whereof I have hereunto set my hand and seal this
the 14th day of December, 1895. N. M.*

[Seal.]

§ 1206. Income, rents and profits for life to wife, fee to
children.*°—First. It is my will that my funeral:expenses and
all my just debts be fully paid. Second. I give and bequeath
to my wife, H., the sum of one thousand dollars, to be paid to
her upon the final settlement of my estate. I also give and be-
queath to her the house and lots in said town in which I now
reside, and which I purchased of U. S., for and during her nat-
ural life; also all the rents, income, and profits arising from all
my real estate which I may own (excepting said house and lots)
until the oldest one of my children has attained the age of
eighteen years, upon condition that my said wife shall raise, sup-
port, and educate my children until they respectively have attained

34 Miller v. Miller, 99 Va. 662, 39 85 See ante, § 222.
S. E. 597, 7 Prob. Rep. Ann. 106,
§ 1206 WILLS 808

the age of eighteen (18) years, after which my wife shall recover
one-third (1-3) only of the net rents and income of such real
estate, the other two-thirds to be paid to and equally divided
among my children by my present wife. Third. I give and be-
queath to my son J. R. the sum of two thousand dollars
($2,000.00) to be paid and loaned out as soon as possible after
my death, at the highest rate of lawful interest which can be
obtained, upon good personal or real estate securities, for the
use and benefit of my said son; and I hereby appoint my wife,
H., conservator of my son J., to control and manage said money.
as aforesaid, first giving bond with securities as the court may
order. And I further direct that my wife shall keep, support,
and maintain my said son during his natural life for the yearly
interest arising from said money, and, in case such interest is
not sufficient to maintain him, a part of the principal may be ex-
pended for his support; and if my wife shall fail or refuse to
accept said trust, the court shall appoint some fit person in her
place to manage his affairs, and, upon the death of my son J.,
the rest and residue of said money shall be divided equally among
my children by my present wife, or their legal representatives.
Fourth. I give and bequeath to the children of my daughter
L. R. the sum of six hundred dollars ($600.00), to be divided
equally among them and to be paid to their legally appointed
guardian upon the final settlement of my estate. Fifth. I give
and devise all my real estate to my children by my present wife
in equal shares, subject to the rent charges and life estate afore-
said; and if any one or more of my said children shall die under
age, and without leaving issue surviving him, her, or them, I
give and bequeath the share or shares, original as well as ac-
crued, of such of them as shall so die, to my other and surviving
children by my present wife; and I further direct that no real
estate shall be sold, in partition or otherwise, until the youngest
of my children has attained the age of eighteen years. Sixth.
I give and bequeath all the rest and residue of my personal
property to my children of my present wife in equal shares. The
taxes, insurance, and the costs for the necessary repairs of the
improvements on said real estate shall first be paid out of the
809 ENTIRE WILLS AND ADJUDICATED FORMS § 1207

rents arising therefrom, and the rest of the proceeds disposed
of as hereinbefore directed. Lastly, I hereby nominate and ap-
point H. R., my wife, to be executrix of this, my last will and
testament, hereby revoking all former wills by me made.**

§ 1207. Will—Bequests to children of brothers per cap-
ita.*"—Being in good health, sound mind and of a disposing
disposition, I make this my last will and bequest.

Ist. I desire that all my just debts and funeral expenses shall
be paid and that a suitable monument be erected over me to cost
not less than fifteen hundred dollars.

2nd. I give to Mrs. E. J. three Louisville Railway five per
cent. bonds, par value one thousand dollars each, or their value:
—also my cottage and lot on the east side of Eighteenth, between
Main and Rowan streets, in this city.

3rd. I give to F. R. B. my diamond studs, collar buttons and
sleeve buttons, also my gold watch.

4th. I give to my old friend, W. S., three thousand
($3,000.00) dollars, in cash; I also release him from all money
that he may owe me at the time of my death and the same must
be canceled. I also give him the use during his natural life the
sum of five thousand ($5,000.00) dollars, free from all secur-
ity, nor is he to be charged interest of any kind on the above
amount. Should any of the five thousand dollars remain at
the time of his death, it is to be returned to my estate for dis-
tribution as shown later in this will.

5th. I give to my nephew, F. B. H., son of J. H., my diamond
fire badge, and all other badges and medals or souvenirs that
may have been presented to me; also all my real estate that I
may possess at the time of my death that has not previously been
given away in this writing.

6th. I give to my niece, the daughter of P. H., the sum of
one hundred ($100.00) dollars.

7th. After the above bequests have been complied with, the
remainder of my estate shall be equally divided into two parts—

36 Morrison v. Schorr, 197 Ill. 554, 37 See ante, § 195.
64 .N. E. 545, 8 Prob. Rep. Ann. 92,
§ 1208 WILLS 810

one part (or one-half of the entire amount) I give to my nephew,
F. B. H., the son of my brother, J. H., and the other half is to
be equally divided between the children of B. and J. H., with
the exception of F. B. H.—the share that may be due the heirs
of B. H. is to be given to the Fidelity Trust Company, of Louis-
ville, Ky —and the widow of B. H. is to have the net income of
same as long as she remains his widow. Should she die or cease
to be his widow, the trust is to be equally divided between the
children of my brother B. H.**

§ 1208. Vested remainder—Defeasible fee in remainder—
Executory devise.*°—I give the residue of my estate, real and.
personal, in trust, to my said brothers, F. B. and A. B., with
authority to sell, change and reinvest the same at their discretion;
and I hereby appoint that they shall hold the same in trust for
my dear wife, and my beloved daughter, M. G. B., as follows:

The whole income to be paid to my dear wife, if she should
survive and remain unmarried, till my daughter shall attain the
age of twenty-five; and should my daughter be removed by
death before that age and without being married, then the whole
income to be paid to my dear wife throughout her own lifetime.

When my daughter shall attain the age of twenty-five, the half
of the income to be paid to her; and also to be held in trust for
her and used for her benefit, should my dear wife, at any time
previous to her attainment of that age, be herself married a sec-
ond time.

Should my dear wife die before my daughter attains the age
of twenty-five, the whole income to be held in trust for my daugh-
ter and used in her behalf, till she attains that age; and then to
be transferred to her with the whole estate, and the trust to
cease.

Should my daughter be married and depart this life, before the
age of twenty-five, leaving issue, then at her death the half of the
estate hereby bequeathed to the said trustees to become vested

38 Hughes v. Hughes, 118 Ky. 751, 39 See ante, §§ 241, 235, 242.

82 S. W. 408, 26 Ky. L. 625, 9 Prob.
Rep. Ann, 379,
811 ENTIRE WILLS AND ADJUDICATED FORMS § 1209

in such issue, if my dear wife should still be living; if not, the
whole to pass to such issue and the trust to cease.

Should my dear daughter, married or unmarried, attain the
age of twenty-five, half the income to be paid to her, and half to
her mother, till the death of the one or the other; and then, and
thereupon : .

Should my daughter survive her mother, the whole estate to
vest in her, and the trust to cease; and

Should my dear wife survive our dear daughter, she dying
without issue, the whole income to be paid to my dear wife during
her lifetime, and at her death the estate to be divided into two
equal parts; one of which shall be transferred to such charitable
or religious purposes as she may direct, or if she make no direc-
tion, then to the trustees aforesaid of the fund for the support of
the episcopate of the diocese of Maine, to constitute a fund for
the assistance of missionaries and other clergymen of the said
diocese and to be applied under the direction of the bishop and
standing committee, especially for the relief of the sick, infirm or
aged clergymen in the said state, without regard to any division
of the diocese; and the other half to be divided equally amongst
the grandchildren of my deceased father;

Should my dear wife survive our daughter, she leaving issue,
then at the death of my wife, the remaining half of the estate to
pass to such issue and the trust to cease.*°

§ 1209. Will—Trust to executors for support and educa-
tion of children—Fee in executors.**—All my real and per-
sonal estate I give, in trust, to my executors for the purpose of
disposing of it to the best of their judgment, for the support and
education of my two children, the children of E. D. and the
support of the said E. For that purpose they are to give the said
E. one thousand dollars a year until the eldest child is nine years °
old (it is now nearly two), and if either of the children should
die before then, there shall be no change made as to the amount
of a thousand dollars a year. Should both children die before

40 Storrs v. Burgess (R. I.), 67  41See ante, § 355.
Atl. 731, 13 Prob. Rep. Ann. 46.
§ 1210 WILLS 812

they are of age, E. D. is to receive out of my estate five hundred
dollars a year during her life. Should the net income of my
estate be two thousand dollars a year after paying the legacies
hereinafter mentioned, I wish my father to have five hundred
dollars a year of this income during his life, and if my mother
outlives him, she is to receive it after his death. The residue is
to be invested in Memphis city bonds until the children, or the
survivor of them, is sent to college. I desire my executors to ex-
ercise their best judgment in the selecting of a suitable school,
and to be liberal, if the means are in their hands to procure them
a good education. But my executors are requested to check and
stop the supplies if they should be satisfied there is extravagance
by the children, and to pay no bills of theirs not authorized by the
executors before contracted by the child or children; I wish the
children plenty, but not waste. * * * In the event of the death
of both of my children, mentioned above, before they have a child
or children to inherit to them, I give to E. H. and M. A. H.
all my estate remaining, except the annuities as above mentioned.
es = 1 appoint: J. i. (ay father), W. 2, and J. GC
the executors of my will. I know it is an unpleasant task, but
I would render either of them any service in my power. They
are to be required to give no security, for they will not abuse their
trust.*? ‘

§ 1210. Will—Specific legacies—Provision as to contest
of husband’s will.“°“—1. I have and own in my own right the
sum of two thousand dollars, received from the estate of my
father, which I will and bequeath to my daughters, A. and A., in
equal shares, to them and their heirs and assigns.

2. Whereas, the will of my deceased husband, J. C., is now
being contested at law by some of the heirs; and, whereas, in case
said will should be broken and held void at law, I, as wife and
widow, will be entitled to one-third of all my husband’s real
and personal property: Now, therefore, if by reason of the

42 Chase v. Cartwright, 53 Ark. 358, 43 See ante, §§ 139, 290.

14S. W. 90, 22 Am. St. 207, 7 Am.
Prob. 83.
813 ENTIRE WILLS AND ADJUDICATED FORMS § 1211

premises I shall become owner of said estate above named, I will
and bequeath the same in the following manner: I desire that
my share and interest in the said real and personal property be
converted into money by my executor as soon as practicable after
my decease, and the proceeds distributed as follows, to wit: First.
To my daughter, S. S., of Texas, I give the sum of three thou-
sand dollars. Second. To my daughter, A. M., of Illinois, the
sum of five hundred dollars. Third. To my daughter, T. C., of
Illinois, I give the sum of three thousand dollars. Fourth. To
my daughter, A. B. D., of Burlington, Iowa, five hundred dol-
lars. Fifth. To my daughter, E. B., of Illinois, I give the sum
of five hundred dollars. Sixth. To the two eldest daughters of
my son, T. C., A. and A., I will and bequeath the sum of five
hundred dollars each. Seventh. To my son, J. F. C., of Illinois, I
will and bequeath the rest and residue of all my property, of
every nature and kind whatsoever, for him, his heirs and assigns,
forever; and I hereby appoint and nominate my friend, E. McK.,
executor of this, my last will and testament, and authorize him to
sell said estate, real and personal, which may come to me as
aforesaid.**

§ 1211. Will—Entire estate community property—All
given to wife with power to sell—Precatory trust for sup-
port of testator’s mother and sister.“—I, D. D. C., of San
Francisco, make this my last will and testament. I declare that
all of the estate of which I shall die possessed is community prop-
erty and was acquired since my marriage with my wife. I give
and bequeath to my said wife, E. M. C., all of the estate, real and
personal, of which I shall die seised or possessed or entitled to.
I recommend to her the care and protection of my mother and
sister, and request her to make such gift and provision for them
as in her judgment will be best. I also request my dear wife to
make such provision for my daughter, H., wife of C. T., and C,,
as she may in her love for them choose to exercise. I hereby ap-
point my said wife to be the executrix of this my last will and tes-

44 Smith v. McKitterick, 51 Iowa 45 See ante, §§ 65, 380, 339.
548, 2 N. W. 390, 1 Am. Prob. 49.
§ 1212 WILLS 814

tament, and desire that no bonds be required of her for the per-
formance of any of her duties as such executrix. I authorize
and empower her to sell, dispose of, and convey any and all of
the estate of which I shall die seised and possessed, without ob-
taining the order of the probate court, or of any court, and upon
such terms and in such manner, with or without notice, as to
her shall seem best. If my said wife shall desire the assistance of
any one in the settlement of my estate, I hereby appoint my
friend, S. M. W., of San Fransisco, and my secretary, C. E. G.,
to be joined with her in the said executorship, and authorize ‘her
to call in either or both of the said gentlemen to be her co-execu-
tors; and in case she shall so unite either or both of them with
her, the same provisions are hereby made applicable to them as
I have before made for her in reference to bonds and duties and
powers.**

§ 1212. Will—Life estate to wife—Specific legacies to
children.“W—Art. 3. Whereas, by the terms of my father’s
will, certain property, real and personal, including his homestead
at West Roxbury, Massachusetts, is bequeathed and devised,
to be held in trust or otherwise, for the benefit of: my mother,
during her lifetime, and one-half of the same, or of the pro-
ceeds thereof, may be disposed of by me, subject to her interest
therein or the trusts for her benefit, I do therefore order, direct,
and appoint that, if my said wife is living at the time of my
mother’s death, she shall have the use, benefit, and enjoyment
of that part of said property which is thus liable to be disposed
of by me, or of the income thereof, if my power extends no fur-
ther than to dispose of the income, till the eldest of my children,
who survives me, attains his majority. When that event hap-
pens, if she is still living, my executors are directed to set apart
out of the said property a fund for the benefit of said child, con-
sisting of money or securities, or partly of money and partly
of securities, to the amount or value of one hundred thousand

46 Colton v. Colton, 127 U. S. 300, 47 See ante, §§ 236, 138.

8 Sup. Ct. 1164, 32 L. ed. 138, 6 Am.
Prob. 11.
815 ENTIRE WILLS AND ADJUDICATED FORMS § 1212

dollars. When my second child, who survives me, attains his
or her majority, my said executors are directed to set apart, for
his or her benefit, a similar fund of one hundred thousand dol-
lars; and so on in succession, as each child attains his or her
majority, until a fund of the amount or value of one hundred
thousand dollars has been set apart for each of my children who
attains majority. My said wife shall continue to have the use,
benefit, and enjoyment of the remainder of the property, or of
the income of such remainder, as the case may be, as each suc-
cessive fund is set apart (and of the remainder after all the
funds are set apart), during her lifetime as aforesaid. And I
order, direct, and appoint that, at any time after my mother’s
death, my said wife may give to any of my children, or to any
issue Of such child, absolutely and indefeasibly, any part of the
capital of the property mentioned in this or in the first article
of this will, except such portion thereof as may have been set
apart to constitute any of the funds mentioned in this article, or
which it is necessary to retain in order to constitute all of said
funds. And every division to be afterward made, as herein-
after provided, shall be made without reference to such gift,
the residue only being divided.

Art. 4. Immediately after the death of my said ‘wife, my
surviving executors are directed to divide all the estate and prop-
erty mentioned in any part of this will, except that mentioned in
the second article thereof, into as many shares as I shall leave
children me surviving, who have also survived till their mother’s
death, or who have died and left issue surviving at that time.
If my mother dies before my wife, any of the funds which have
been set apart, as provided in the third article of this will, shall
be accounted a part of the share to which the child, or the issue
of the child for whom it was set apart, would be entitled at my
wife’s death; but it shall not again be divided as part of the es-

‘tate mentioned in this article. If, on the other hand, my wife
dies before my mother, the division provided for in this article
shall be made without reference to the property bequeathed and
devised by my father for my mother’s benefit, as stated in the
foregoing third article; and after my mother’s death, that por-
§ 1212 WILLS ‘ 816

tion of said property which is subject to my disposition, as
therein stated, shall be divided into as many shares as I shall
leave children me surviving, who have also survived till their
grandmother’s death, or who have died and left issue surviving
at that time. And, in order to enable them the better to make
the division or divisions herein provided for, and to discharge
their powers and duties under this will, I hereby bequeath and
devise to said executors, and the survivor or survivors of them,
in trust for the purposes herein mentioned, all the property men-
tioned in this will, except in the second article thereof, subject
to the life estates and interests of my said wife and mother re-
spectively.

Art. 5. Every fund or share to be created or set apart, as here-
inbefore provided for, shal! be equal in value or amount, in execu-
tor’s judgment, to every other fund or share to be created or set
apart at the same time. Every fund or share created or set apart
for the benefit of the issue of a deceased child shall be immedi-
ately paid, delivered, or transferred to such issue. Every fund
or share created or set apart for the benefit of a child who is then
living shall be held and managed by the executors, during the life-
time of that child, in trust to invest and reinvest the same, and
to pay over the clear income thereof, deducting expenses, to that
child, as the same accrues, and not otherwise; the anticipation of
any such income being hereby expressly prohibited. At his or
her death, leaving surviving issue, such issue shall take abso-
lutely the capital and unexpended income of such fund or share.
But, if such child leaves no surviving issue, he or she may dispose
of the capital and unexpended income by a last will and testament,
but not otherwise. In default of any such disposition, such cap-
ital and unexpended income, or the part thereof not disposed of,
shall be equally divided between my other children then sur-
viving and the surviving issue of those who may be dead; such
issue to take the share to which the parent would have been en-
titled if living.*

48 Bradford v. Brinley, 145 Mass. 81, 13 N. E. 1, 6 Am. Prob. 279.
817 ENTIRE WILLS AND ADJUDICATED FoRMS  § 1213

§ 1213. Will—Gift to wife in lieu of dower—Provision
for grandsons conditioned on character—Bequests to char-
ity."—I, H. W. W., of the village of Omro, Winnebago
county, state of Wisconsin, being of sound mind and memory,
and mindful of the uncertainties of human life, so make, pub-
lish, and declare this my last will and testament, hereby revok-
ing all former wills, bequests, and devises by me made.

First. It is my will that all my just debts, funeral expenses,
and all other charges be paid out of my estate.

Second. I give, devise, and bequeath to my beloved wife,
L. M., the sum of ten thousand dollars, to be paid out of my
- estate.

Third. I further give, devise, and bequeath to my beloved
wife, L. M., my homestead of about six acres of land, known
as “Outlot No. seventy-five (75),” south of Fox river, in the
village of Omro, Winnebago county, state of Wisconsin, to-
gether with all the appurtenances thereto belonging.

Fourth. I give, devise, and bequeath to my beloved wife, L.
M., all the household furniture, beds, bedding, bocks, works of
art, and other chattels, jewels, trinkets, personal ornaments,
worn or used by me or her, fuel, housekeeping provisions, and
other consumable stores which shall be in or about my dwelling-
house in said village of Omro at my decease, except money, se-
curities for money, evidences of debts, and of title and accounts;
and I also give, devise and bequeath to my beloved wife, L. M.,
my carriage horse, carriage, sleigh, harnesses, robes, bells, and
cow, and the hay and grain on hand for feeding said horse and
cow, which, with what I have heretofore given to her in this,
my will, I mean to be, and that she, my beloved wife, L. M.,
accept the same, in full of her right of dower or third in my
estate, and I give to her as above upon the express condition that
she, my beloved wife, L. M., shall give to my executors, when
demanded, a release of all demands and claims of dower or
thirds and otherwise of and against my estate, save what I have
herein given her, except certain promissory notes which my be-
loved wife, L. M., now holds, or which she may hold against me

49 See ante, §§ 102, 100.
52—Tuomp. WILLS.
§ 1213 WILLS 818

at my decease, which I will, wish, and direct shall be considered
and treated a proper debt and claim in her favor against my
estate, and the amount of said promissory notes paid her out of
my estate.

Fifth. I give, devise, and bequeath out of my estate not here-
inbefore disposed of, to H. W. M., my grandson, and son of
D. and M. D. M., the sum of ten thousand dollars; said sum to
be invested and put to use, and the interest arising therefrom,
or so much as said child’s guardian and my executors, herein-
after mentioned, may consider proper and necessary, be used for
the support and education of said child, and at his majority the
unexpended interest from said principal sum be paid him, and
the interest on said sum annually thereafter, until he arrives at
the age of thirty years, at which time I will and direct that my
executors pay to said H. W. one-half of said ten thousand dol-
lars, and one thousand dollars each year thereafter, together
with all interest earned, until the balance of said ten thousand
dollars hereby willed to him has been paid: provided, however,
that said H. W. has in the meantime learned some useful trade,
business, or profession, and is of good moral character—my
executors to determine whether said child has fully complied
with said proviso—before any payments from the principal sum
are made to him.

Sixth. Same as 5th but with reference to another grandson.

Seventh. I will and direct that in case of the death of either
child without leaving an heir, and before the said legacies are
paid to them, or either of them, that the surviving one shall be
considered the first heir, and have the share of the deceased one,
under the same restrictions and upon the same conditions pro-
vided for said deceased one’s share; but, in case of the death of
both without leaving an heir, all remaining payments and legacies
to revert back to my estate, and to be expended by my executors
for charitable purposes, or given to any of my heirs who are in
need, or not in very comfortable circumstances, as to my execu-
tors seems fit and proper.

Eighth. I give, devise, and bequeath to my son-in-law, M. D.
819 ENTIRE WILLS AND ADJUDICATED FORMS § 1213

M., one certain promissory note for one thousand dollars, given
by him to use, dated November 29, 1878.

Ninth. I give, devise, and bequeath to D. H., of Hampton,
Washington county, state of New York, the annual interest of
two thousand dollars during his life, said annuity to be paid
him annually; and it is my will and I direct my executors to
put and keep said sum of two thousand dollars at interest at
the best rate obtainable, reference being had to good security;
and at his death I give, devise, and bequeath said sum of two
thousand dollars to A. R., wife of J. R., of the village of Omro,
Winnebago county, state of Wisconsin.

Tenth. I give, devise, and bequeath to L. C., of Castile, Wy-
oming county, state of New York, H. S., and B. M., wife of
E. M., of Omro, Winnebago county, state of Wisconsin, each
the sum of five hundred dollars.

Eleventh. I give, devise, and bequeath to my three sisters,
A. M., of Pike; E. L. S., of Warsaw; I. B., of Covington, all
of Wyoming county, state of New York, each one thousand dol-
lars; and the surviving children of L. H., wife of C. H., of Erie
county, state of Pennsylvania, one thousand dollars, to be equally
divided between them.

Twelfth. I give, devise, and bequeath to the Omro and Al-
goma Union Cemetery Association, of Omro, Winnebago
county, state of Wisconsin, the sum of one thousand dollars;
which said sum I will and direct to be paid over to the proper
officers of said association, for the purpose of assisting in build-
ing a chapel on or near the said association cemetery grounds,
to be built of brick or stone, with a seating capacity to accommo-
date two hundred persons; but in case said association will not
build said chapel, then I direct and will the said sum of one
thousand dollars to. said association upon the express condition
that said association put said one thousand dollars to use, and
the annual interest arising therefrom be used by said association
in improving their cemetery grounds.

Thirteenth. I give, devise, and bequeath to the First Pres-
byterian Church, of the village of Omro, Winnebago county,
state of Wisconsin, the sum of ten thousand dollars, upon the
§ 1213 WILLS 820

following conditions, to wit: That said sum be kept as a per-
petual fund for the use of said society, and the intent arising
therefrom; one-half to be used by said society in defraying the
annual expenses, and the balance distributed and used for the
relief of the resident poor.

Fourteenth. It is my will, and I hereby instruct my execu-
tors, that one-third interest in the partnership business of the
firm of W. & Co., of the village of Omro, remain in said busi-
ness according to the terms and conditions of a certain contract
between me, Henry S., and E. C. J.

Fifteenth. It is my will, and I direct, that in case my estate
exceeds the legacies mentioned in this, my will, that the surplus
or remainder of my estate be appropriated’ and used by my
executors in aid or encouragement of charitable purposes; and
if in their judgment there should be a sufficient amount of said
surplus, I would recommend that the same be used to establish
a school in Omro, or some place in Winnebago county, Wiscon-
sin, for the education of young persons in the domestic and use-
ful arts; but in case there is not enough of my estate to meet
the above legacies, that the deficit may be borne pro rata between
the legatees, except my beloved L. M.

Sixteenth. I will and direct that all legacies to my beloved
wife, L. M., be paid in full.

Seventeenth. All legacies and bequests mentioned in this,
my will, I will and direct be paid out of my estate within five
years from my death, without paying any interest on said
legacies.

Eighteenth. I hereby nominate and appoint my beloved wife,
L. M., E. S., and E. R. H., of Winnebago county, Wisconsin,
the executors of this, my last will and testament; and hereby
authorize and empower them to compound, compromise, and
settle any claim or demand which may be in favor or against my
said estate, and to do and perform all things necessary and
proper in the premises to carry out this, my will.
821 ENTIRE WILLS AND ADJUDICATED FORMS § 1214

In witness whereof, I have hereunto set my hand and seal
this twenty-eighth day of November, 1883. H.W. We
[Seal.]

81214. Will—Directions for sale of real estate and dis-
tribution of proceeds.**\—First. After all my just debts and
funeral expenses are paid and discharged, I do hereby order
and direct that, as soon after my decease, my executor herein-
after named shall take charge and control of all my personal and
real estate, wherever the same may be, and shall sell and dis-
pose of the same as he may think to the best interest and advan-
tage of all the parties hereby interested in the same.

Second. I do hereby give, devise and bequeath unto my be-
loved wife, J. S., one-third of the proceeds of all my real estate,
the same being in the town of Paterson, in the state of New
Jersey.

Third. After deducting the said one-third devised and be-
queathed to my beloved wife, I do order and direct that the rest,
residue and remainder of the moneys derived from the sale of
my said real estate be equally divided between the following
persons: First. I do hereby give, devise and bequeath unto my
friend, M. S. a one equal undivided one-fourth part of the profits
obtained on the sale of my said real estate, together with ali my
personal property. * * * Fourth. I do hereby give, devise and
bequeath unto my beloved son, D. S., a minor, under the age of
twenty-one years, to wit, now of the age of fifteen years, one
equal undivided one-fourth part of the profits and moneys ob-
tained on the sale of my said real estate. Fifth. I do hereby
give, devise and bequeath unto my beloved son, A. S., a minor,
under the age of twenty-one years, to wit, now of the age of
four years, one equal undivided. one-fourth part of the profits
and moneys obtained on the sale of my said real estate. Sixth.
I do hereby give, devise and bequeath unto my beloved son, J.
S., a minor, under the age of twenty-one years, to wit, now of

50 Webster v. Morris, 66 Wis. 366, 51 See ante, § 392,
28 N. W. 353, 57 Am. Rep. 278, 5 Am.
Prob. 158.
§ 1215 WILLS 822

the age of two years, one equal undivided one-fourth part or
the profits and moneys obtained on the sale of my said real
estate. Said bequests being independent of the bequest made to
my said wife. Seventh. I do hereby order and direct that the
money derived of and from the sale of my said real estate shall
be paid over to such devisees as may be of age as soon after my
death as may to my said executor seem proper, and that all
moneys by him in hand, the results of the sale of my said real
estate, shall be invested in United States securities to and for
the interest and advantage of my said children herein named
who may at the time of the sale of said property be minors.
Eighth. I do hereby nominate, constitute and appoint my be-
loved brother, T. S., of the town of Paterson, state of New Jer-
sey, to be the guardian of such of my said children as may be
minors at the time of my decease, and also nominate, constitute
and appoint the said T. S. to be the executor of this, my last
will and testament, hereby revoking all former wills by me
made.”

§ 1215. Will—Directions for equitable conversion.—First.
I order and direct my executors to pay out of the assets of my
estate all my debts of every description.

Second. I hereby empower and authorize my executors to
sell all my real estate and personal property at public or private
sale, and to make and execute deeds in fee simple for my real
estate; but should any of my devisees hereinafter named, desire
to purchase any part or parts of my real or personal property,
not to exceed their proportionate share in my estate, they shall
have the first choice, according to their respective ages (the
eldest first), at a valuation to be fixed by my executors, herein-
after named; but, in case the valuation fixed by my’ executors
is not satisfactory to any of them, then it shall be determined
by three disinterested parties—one to be chosen by the party
desiring to purchase, one by my executors, and the two thus
chosen to choose the third. The decision of said referees shall
be final and conclusive, and thereupon my executors shall make

52 Stewart v. Stewart, 31 N. J. Eq. 398, 1 Am. Prob. 168.
823 ENTIRE WILLS AND ADJUDICATED FORMS § 1215

a deed in fee simple for such real estate, or make a proper trans-
fer of such personal property, upon such price and upon such
terms as said referees may agree upon said award.

Third. I give and bequeath unto my wife, M. F. F., all my
household goods and furniture, also one-third of all my estate,
to have and to hold the same during her natural life, and at her
death the said one-third shall be divided and disposed of as fol-
lows, viz.: To my daughter, H. F., one-sixth part; to the sur-
viving children of my son, C. H. F., their heirs and assigns, one-
twelfth part, to be divided among them, share and share alike;
to my son, B. S. F., his heirs and assigns, one-sixth part; to my
daughter, C. R. V., her heirs and assigns, one-sixth part; to my
son, V. F., his heirs and assigns, one-sixth part; to V. F., in
trust for my son, L. F., as hereinafter specified, one-sixth part;
to my grandson, W. E. F., and granddaughter, I. M. F., chil-
dren of my son, W. B. F., deceased, one-twelfth part, to be di-
vided between them, share and share alike; and I direct my
executors to invest the said one-twelfth so bequeathed unto my
said named. grandchildren in good mortgages, real estate, or
other safe securities, and to pay over to the said W. E. F. and
I. M. F., the ‘interest or income thereof quarterly, share and
share alike, during their natural lives; and at the death of either
of them one-half of the principal shall be paid to his or her chil-
dren, but in case of the death of either or both of my said
grandchildren leaving no children to survive him, her, or them,
his, her, or their share shall be divided among my surviving
children, share and share alike, the children of any deceased
child to take the same share his, her, or their parents would have
taken if living.

Fourth. All the rest and residue of my estate (real and per-
sonal) I give, devise, and bequeath as follows: One-sixth part
thereof unto my daughter, H. F., her heirs and assigns. One
twenty-fourth part thereof unto my son, C. H. F., which shall
be invested by my executors in mortgages or other safe securi-
ties, the interest of which shall be applied by them to his support,
in case the United States government, in whose care he now is,
shall cease to care for or support him; but I further direct my
§ 1215 WILLS * 824

executors shall send him, out of the interest of the foregoing
bequest, clothing to an amount not exceeding one hundred dollars
per annum. At his death the foregoing bequest and accumula-
tions accruing thereon shall be divided among his children, share
and share alike. One twenty-fourth part to the children of my
son, C. H. F., their heirs and assigns, to be divided among them,
share and share alike. One-sixth part thereof unto my son, B.
S. F., his heirs and assigns. One-sixth part thereof unto my
daughter, C. R. V., her heirs and assigns. One-sixth part thereof
unto my son, V. F., his heirs and assigns. One-sixth part thereof
unto V. F., in trust for my son, L. F., upon the trust hereinafter
mentioned. Unto my grandson, W. E. F., and my granddaugh-
ter, I. M. F., children of my son, W. B. F., deceased, one-twelfth
part, which I direct my executors to invest in good mortgages,
real estate, or other safe securities, the interest or income of
which they shall pay to the said W. E. F. and I. M. F., share and
share alike, quarterly, during their natural lives, and at the
death of either of them one-half of the principal shall be paid
to his or her children; but in case of the death of either or both
of my said grandchildren, leaving no children to survive them,
his, her, or their share shall be divided among my surviving
children, share and share alike; the children of any deceased
child to take the same share his, her, or their parents would
have taken if living.

Fifth. The foregoing bequests and devises to V. F., trustee
for L. F., are to be held by him on the following trusts: To in-
vest such sum or sums as he may receive from time to time in
the settlement of my estate in such securities as in his judgment
he may deem safe, and to change investments from time to time,
and to pay over the income therefrom derived to said L. from
time to time during the life of my said son L., without the
power of assignment or anticipation on the part of my said son
L., and without liability of the principal or income for the debts,
liabilities, or contracts of the said L., and without liability to
execution or attachment by any creditor of said L., and on the
death of said L. leaving child or children or the children of
‘child or children, the said income, dividends, and profits arising
825 ENTIRE WILLS AND ADJUDICATED FORMS § 1216

from the said trust to be applied to the education and mainten-
ance of his child or children; and on the arrival at legal age of
his said child or children then this trust to cease, and the prin-
cipal of the same to be paid over to the said child or children,
share and share alike. In the event of my child L. dying leaving
no child or children, then the principal to revert to my legal heirs
in the same proportion as bequeathed to them in my said will.

Sixth. I nominate and appoint A. V. V. and my son, B. S.
F., executors of this my will, and I hereby give them two years
after my decease for the final settlement of my estate; but in
case my executors, for good and sufficient reason, require a
longer time, with the consent of a majority of my heirs, the
time may be extended two years.®

§ 1216. Will creating trust for son during life, though
he survives his daughter, and that grandchildren born
after testator’s death have no right to share in legacy to
grandchild dying before reaching age of twenty-five.*—
Fourth. I give and bequeath to each of my grandchildren the
sum of ten thousand dollars, to be paid to them on their sev-
erally attaining the age of twenty-five (25) years. I direct that
during the minority of any of such grandchildren, and until
they shall respectively attain the age of twenty-five years, the
said sum shall be invested by my executors in bonds and mort-
gages or other safe securities, and the interest and proceeds
arising therefrom shall be paid semi-annually to the respective
mothers of said children; and, in the event of the decease of any
mother, the said interest shall be added to the principal fund,
which, with all accumulations, shall be paid to each of said
grandchildren as above meitioned. In the event of the decease
of either of said grandchildren prior to attaining the age of
twenty-five years, then I direct that the share of such deceased
shall be equally divided between the surviving grandchildren,
share and share alike. All the grandchildren, as a class, shall

35 Fahnestock v. Fahnestock, 152 54See ante, § 338.
Pa. St. 56, 25 Atl. 313, 34 Am. St.
623, 8 Am. Prob. 343,
§ 1216 WILLS 826

take irrespective of relationship as a brother or sister of a de-
ceased child. With respect to my granddaughter, E. D., daugh-
ter of my son, R. P. H., I direct that the interest arising from
the investment of her ten thousand dollars, instead of being
paid to her mother, shall be added to the one-third part of my
estate hereinafter devised and bequeathed to her said father.
Fifth. After satisfying the foregoing provisions, I direct
that all the rest, residue, and remainder of my estate, both real
and personal, be divided into three (3) equal portions, and I
give, devise, and bequeath one such third part to H. E. S., wife
of J. M. S.; one other third part to E. C. M., wife of R. E. M.;
and the remaining one-third part I direct shall be held in trust
by my executors upon trust to invest the same upon such securi-
ties as hereinbefore mentioned, and out of the proceeds arising
therefrom to pay to my said son, R. P. H., the sum of one hun-
dred dollars per month for his support and maintenance, and
for the support, maintenance, and education of his daughter,
E. D. H., during her minority; provided, and upon the sole con-
dition, that after she attains the age of eight years she shall re-
turn to the residence at that time of my wife or her relatives, re-
siding within the state of New York, it being anticipated that her
father may return and reside with her; but this clause shall be
operative only in the event that my said grandchild shall be able
to and shall actually reside with her- said relatives, either alone
or with her father, as the case may be, and shall be governed by
their tuition, advice, and directions, or by the advice and counsel
of my executors, or a majority of them, until she attain the age
of twenty-five (25) years. In case my said granddaughter
shall neglect or refuse to reside with her said relatives during
said period intermediate eight and twenty-five years of age,
then all the provisions in this will contained relating to my said’
grandchild shall, during such period of refusal, be deemed
wholly inoperative and void, and shall be construed as if no
clause or recognition were had of my said grandchild. In the
event of my said granddaughter surviving her father, R. P. H.,
then she shall receive one-half of his one-third part of the
827 ENTIRE WILLS AND ADJUDICATED FORMS § 1217

residue of my estate hereinbefore given and devised to him on
her arriving at twenty-one years of age, and the remaining
moiety of his said one-third part shall be equally divided be-
tween my heirs at law; that is, to my said daughters, or their
several children as a class, in the event of the decease of either
my daughters then surviving, share and share alike. In no event
shall my said son, R. P., be vested with, receive, or control any
part of the principal of the said one-third, but the same shall be
held as a trust-estate only, and the income only paid to him. If
from sickness or any other unavoidable necessity the above-
mentioned provision shall not be sufficient for the support and
maintenance of my said son, R. P., and his daughter, E. D.,
then I direct my executors, or a majority of them, to apply such
part of the accumulated interest or of the principal fund consti-
tuting such one-third part of the residue of my estate as shall,
in the judgment of my executors, or a majority of them, be nec-
essary to supply the deficiency. In the event of the decease of
my said son, R. P., leaving no issue surviving him, then I direct
that the said one-third part hereinbefore given and devised in
trust for him shall revert to my heirs at law then surviving, and
be equally divided between them, share and share alike. This
provision shall not be construed as vesting any estate in my said
son, R. P. H., and the words “heirs at law” shall include my
grandchildren then surviving as a class.*°

§ 1217. Will made in two countries—Bequests to citizens
of foreign countries, and disposing of property in foreign
land.**°—Item 6. I give and bequeath unto my relatives re-
siding in Germany, one thousand (1,000) shares of the stock
of the Bank of California, the same to be sold by my executors
at or as soon after my decease as is practicable, for its reasona-
ble value, and the proceeds to be divided as follows, to wit: To
my sister M., one-fourth (14); to the children, residing in Ger-
many, of my brother D., one-fourth (14), share and share alike;

55JIn re Smith, 131 N. Y. 239, 30 56 See ante, § 29,
N. E. 130, 27 Am. St. 586, 8 Am.
Prob. 199.
§ 1217 WILLS 828

to the children of my dead sister, Mrs. M., one-fourth (%4),
share and share alike; to the children of my dead sister, Mrs. F.,
one-fourth (14), share and share alike. And I hereby declare
that any advancements that I may hereafter personally make to
the above-mentioned legatees, or to either of them, shall be
deemed a partial satisfaction of said legacy, equal in amount to
the sum so advanced, and I direct that an equal amount shall be
deducted from the proceeds of the sale of bank stock, and added
to my residuary estate.

Extract from supplemental will or codicil made at Rottweil,
Wurtemberg:

(1) I have already disposed by testament of my estate in
California. That testamentary disposition shall remain un-
changed, and I again ratify the same.

(11) However, I have already made arrangements to have a
sum of money sent from California to a bank in Germany or
Wurtemberg, of which I shall dispose in favor of other relatives.
The following sums of money shall be paid: (1) To my sister,
M. Z., unmarried, at Reutlingen, sixty thousand (60,000) marks,
To my brother, D. Z., of the town of Weil, fifty thousand
(50,000) marks. (3) To the wife of the tanner H., at Reut-
lingen, whose first name at this moment I do not remember,
daughter of my deceased sister, whose name I do not just now
recall, formerly widow of the baker M., of Tubingen, seventy-
five thousand (75,000) marks. (4) To the children of my de-
ceased sister G., formerly wife of the tanner F., of Reutlingen,
to wit: (a) To the son, who is tanner in the upper country,
and is married, whose first name is at this instance unknown to
me, twenty-five thousand (25,000) marks. (b) To her daugh-
ter P., now living, widow of the architect F. at Reutlingen,
that is, to each of the children of this marriage, minors, whose
names are at this instant unknown to me, twenty thousand
(20,000) marks; with proviso that the income is to go to the
children, and that there shall be a guardianship of the estate
until they become of age or marry. (c) To her daughter M.,
now living, wife of the manufacturer H., at Reutlingen, that is,
to the children born and to be born of this marriage (there are
829 ENTIRE WILLS AND ADJUDICATED FORMS § 1218

four children at present), jointly (50,000) fifty thousand marks;
with the proviso that the income goes to the children; that there
shall be a guardianship of the estate until they arrive at the age
of majority, or until they marry, and that at that point of time
they are to receive their shares; that in case of the possibility of
other children being born, the guardian’s court will have to de-
termine how such shall be paid over, and also with the further
proviso that, if one of these children should die during the age
of minority, the share of such child shall go to his brothers and
sisters. The children living shall hold in trust for the children
born hereafter.

(IIT) All the personal property of any kind, as well as money
which I shall leave in Germany at my decease, beyond that of
which I have disposed in the foregoing paragraph, shall go
to the four branches named in the foregoing paragraph, in such
manner that only those mentioned in the foregoing paragraph
shall be entitled, and that those of each branch are to share with
each other in the proportion of the sums given them in the fore-
going paragraph.

(IV) If, unexpectedly, the funds in Germany should be in-
sufficient for the purpose of paying the sums in paragraph 2,
then the heirs of the estate in California shall supply the defi-
ciency.

(VII) All bequests which I have made or which I shall make
by this last testamentary disposition be expressly confirmed,
whether these bequests are given to relatives, strangers, or for
charitable purposes and institutions. Likewise, any testamentary
papers written or subscribed by me shall have the same effect as
if they were here incorporated.”

§ 1218. Will—Property in several states.°—I, Julia H.
Clarke, wife of Henry P. Clarke, residing near Eastover, in
‘Richland county, state of South Carolina, being of sound and
disposing mind and memory, do make and ordain this, my last

57In re Zeile’s Estate, 74 Cal. XIX, 58 See ante, § 40,
15 Pac. 462, 74 Cal. 125, 15 Pac. 455,
6 Am. Prob. 103.
§ 1218 WILLS 830

will and testament, and hereby revoke all other wills by me at
any time heretofore made.

First. I direct that all my just debts and my funeral expenses
shall be fully paid by my executor hereinafter named.

Second. I direct that a portion of my estate sufficient to pro-
duce one thousand dollars ($1,000) annually shall be safely in-
vested by my executor, and the said one thousand dollars be paid
annually to my father, S. H. H., now of New York, in quarterly
payments, during the term of his natural life.

Third. I give and bequeath to Mrs. L. S., of Bridgeport,
Connecticut, the sum of ten thousand dollars ($10,000).

Fourth. I give and bequeath to Miss A. C. P., of said
Bridgeport, the sum of five thousand ($5,000) dollars.

Fifth. The rest, residue, and remainder of my estate, real
and personal, of whatever description, or wheresoever situated,
I give, devise, and bequeath as follows: One-half thereof to my
husband, H. P. C., and one-half thereof to my said husband, in
trust for my daughter N., until she becomes twenty-five years
of age, and then to pay the whole sum over to her. But, if she
shall marry before that age, with the consent and approval of her
father, or, in case of his death, with the consent and approval
of her then guardian, then I direct that one-half of her share
shall be paid to her upon her marriage, and the other half when
she becomes twenty-five. In case I shall leave surviving me one
or more children besides my daughter N., then I direct that the
said rest, residue, and remainder of my estate shall be divided
equally among my said husband and all of my children, share
and share alike, my husband and my children sharing per capita,
and the shares of said children to be held in trust, as above pro-
vided, in the case of N., as being the only one. And I give, de-
vise, and bequeath the said rest, residue, and remainder as afore-
said to each, and to their heirs, and each of them, forever. I
constitute and appoint my said husband, H. P. C., to be executor
and trustee of this, my will, and direct that no bonds be required
of him under either appointment. In witness whereof, I have here-
unto set my hand and seal at Bridgeport, Connecticut, this twen-
ty-fifth (25th) day of May, A. D., 1891. Jp is

[Seal.]
831 ENTIRE WILLS AND ADJUDICATED FORMS § 12138
Codicil

I, Mrs. J. H. C., wife of H. P. C., formerly residing near
Eastover, in the county and state aforesaid, but now residing
in the city of Columbia, of said county and state, having made
my last will and testament bearing date of the twenty-fifth day
of May, A. D., 1891, at Bridgeport, in the state of Connecticut,
do now make this codicil to be taken as part of the same:

First. I hereby ratify and confirm my said will in every re-
‘spect, save as far as any part of it is inconsistent with this
codicil.

Second. I hereby revoke the third item of said will, and in
lieu thereof I will and direct that a portion of my estate sufficient
to produce five hundred dollars annually shall be safely invested
by my executor, and the said ‘five hundred be paid annually in
quarterly payments to Mrs. L. S., of Bridgeport, Connecticut,
during the term of her natural life.

Three. I further will and direct that after the death of Mrs.
L. S. that the portion of my estate which shall at that time be
invested for her benefit under the second item of this codicil
shall then become a portion of my estate, and is hereby disposed
of as directed in item five of my said will; and I further direct
that, if said Mrs. L. S. shall die before my death, then the in-
vestment directed for her benefit under item two of this codicil
shall be, and is hereby, disposed of as directed in item five of my
said will.

Four. I further will and direct that after the death of my
said father, S. H. H., that the portion of my estate which shall
at that time be invested for his benefit as directed in item two of
said will shall then become a portion of my estate, and shall be
disposed of as directed in item five of my said will; and I further
direct that, if my said father shall die before my death, then the
investment directed for his benefit in said item two shall be dis-
posed of as directed in item five of my said will. In witness
whereof, I, the said J. H. C., have hereunto subscribed my name
and set my seal to the foregoing codicil of four items at Colum-
§ 1219 WILLS 832

bia, in the said state, this, the 11th day of November, A. D.,
1893. Jed. to
jl. 8.)

§ 1219. Will leaving property to mother and husband of
testatrix, referring to children sufficiently to preclude their
sharing in estate.°°-—1. In case I die leaving no child, I give
and bequeath to my mother, S. J. K., the sum of twenty-three
hundred dollars.

2. If there are one or more children born to me who are liv-
ing at the time of my death, I give and bequeath to my mother,
S. J. K., the income of twenty-three hundred dollars during her
life, the said twenty-three hundred dollars to go to my husband
and his heirs.

3. I give and bequeath to my husband, W. T. S., all the re-
mainder of my estate.**

§ 1220. Devise of residue to children in trust; share of
child dying before testatrix to go to children surviving at
death of testatrix.°—All the rest, residue and remainder of
my estate, both real and personal, including the proceeds of real
estate, if any be sold, I give and bequeath to my executors here-
inafter named, the principal thereof to be held by them in trust
to be invested by them at their entire discretion, and the interest,
dividend or income only to be paid to the sole and separate use
of each of my children during the term of their natural life, viz. :
se Wag tw oe Els Way Je DL Veg ls Tee Thy, Bl iw Peg Te, ROW
and J. E. R. without liability to any debt or obligation
of my sons and without liability to any debt or obligation of my
daughters or any husband they may have or may have had, All
my children to share and share alike and from and after the
decease of any of them, my children, the equal share of the prin-
cipal such child may be entitled to be paid over to and equally
among any child or children she or he may have as they arrive
at lawful age. Should any of my children die without lawful

59 Clark’s Appeal, 70 Conn. 195, 39 61 Smith v. Smith, 72 N. H. 168, 54
Atl. 155, 3 Prob. Rep. Ann. 120. Atl. 1014, 9 Prob. Rep. Ann. 1.
60 See ante, § 431. 62 See ante, § 143.
833 ENTIRE WILLS AND ADJUDICATED FORMS § 1221

issue then the share of the child deceased to be held in trust by
my executors hereinafter named for the surviving children on
the same terms heretofore expressed and the dividend, interest
or increase thereof to be paid over equally in the manner here-
tofore provided for. And on the death of any other child leav-
ing issue the principal of such shall go to and be divided among
such issue equally as they may arrive at lawful age. The issue
of any of my deceased children to have such shares as the par-
ent would have been entitled to if living.

§ 1221. Will—Devise to widow for life, remainder to sons
on condition precedent.“—I, G. M., of the county of Lin-
coln, state of Kansas, being of sound mind and memory, do
make and publish this, my last will and testament, in manner
and form following, that is to say:

First. I give, devise and bequeath to each of my children the
sum of twenty-five dollars ($25.00), to. be paid to each on their
respective twenty-first birthdays, said moneys to be paid from
the proceeds of the farm.

Second. I give, devise and bequeath to my beloved wife, C.
A. M., the farm on which she now resides, to have and to hold
during her natural life, for the benefit of self and family. I
desire that the farm at her death should go to my two sons, L.
and G., providing that they have been obedient and kind to their
mother and sisters, and displayed energy in developing the best
resources of the farm and providing also that they pay over
whatever difference there may be in the appraisement or allot-
ment made by their mother for the benefit of my other children,
said allotment to be made at the discretion of my wife.

And last, I hereby constitute and appoint my said wife, C. A.
M., to be the executrix of this, my last will and testament.

‘In witness whereof I have hereunto set my hand this fifth day
of March A. D., 1888.
63 In re Vance’s Estate, 209 Pa. 561, 65 Mollenkamp v. Farr, 70 Kans.

38 Atl. 1063, 9 Prob. Rep. Ann. 444. 786, 79 Pac. 646, 10 Prob. Rep. Ann,
64 See ante, §§ 236, 280. 425.

53—Tuomp. WILLS.
§ 1222 WILLS 834

§ 1222. Will—Life estate given to wife and daughter;
fee by implication to children of daughter.°°—In the name of
God, Amen. .

I, W. R. H., being of sound mind, but feeble in body, do make
and declare this my last will and testament, hereby revoking all
wills and testaments heretofore made.

Item 1st. I will unto my wife, S. E. H., for the time of her
natural life, one-half of my property, both real and personal,
to be hers during her natural life, then to go to my daughter,
Ws le hs ,

Item 2nd. I will and bequeath to my daughter, J. T. H., dur-
ing the time of her natural life, the other half of my property,
both real and personal, to be hers, free from the control of any
future husband, and also free from the debts of any future hus-
band, he is neither to have title by curtesy, nor any other title
by reason of her death, nor is to inherit it through the death of
any child or children they may have or in any other manner
whatever.

Item 3rd. In case my daughter J. should die without child,
or in case the child or children should die before marrying or
become of age, then the whole property given to my daughter
J., all for her life, shall go to B. H. S., and should she die before
she marries or becomes of age, then one-half shall be the prop-
erty of J. M. D., and other one-half shall be divided between
the children of my sisters, M. L. J. and L. E. T., and the said
J. M. D. shall receive the property only for her natural life, free
from the debts and contracts of any present or future husband
and this property shall, at her death, follow the same line of
descent as the first mentioned half of the property.

Item 4th. It is my will that the whole of my insurance on
my life, amounting to forty thousand dollars, be put into the
hands of my executor to pay my debts with, and he is directed
so to use it, and if there be a surplus pay it into the general mass
of my estate.

Item 5th. I appoint W. J. my executor of this, my last will
and testament, and desire that no security be required of him.

66 See ante, § 231.
835 ENTIRE WILLS AND ADJUDICATED FORMS § 1223

For witness whereof, I have hereunto set my hand and seal

this 26th day of January, A. D., 1872. W. R. 4H.
[Signed. ]
Signed by us in the presence and by the direction of the
testator, January 26th, 1872. je Wek,
[Signed. ] J.-P. M.

There is to be paid all mother’s money except seven thousand
dollars, my share of her property, which is to be kept as mine.
Proven at the June term, 1872, of the probate court, and or-
dered to be recorded.
Recorded June 26th, 1872.
Je Ra, Glens
jt Cy Dee

§ 1223. Will—Life estate to children—Contingent re-
mainder in residue to grandchildren.“—Second. During the
lives of my son, J. K., and his wife, M. E. K., I give and be-
queath to them one-half of the income of my store and the land
connected therewith, situated on the northwesterly side of Middle
street, in said Portland, and now numbered 203. Said J. and his
wife, so long as they or the survivor shall have and enjoy the
income of said one-half of the above-described premises, shall
be charged with and pay one-half part of the repairs, insurance,
taxes, and other legal expenses. Upon the decease of the said
J. and the said M. E. K., I give and bequeath the income of said
one-half of said premises to my children or child then alive,
charged with the payment of said taxes, insurance, repairs, and
expenses. Said balance of said income of said one-half of said
premises is to be equally divided among my children, and, upon
the death of all my children, I give and devise said one-half of
said premises to my grandchildren then alive, said grandchildren
receiving the share the parent would have received if distribution
thereof had been made under the laws of Maine.

Third. I give and bequeath to my daughter, M. H. Y. the
other half of the income of said premises on said Middle street

67 Ball v. Phelan (Miss.), 49 So. 68 See ante, § 241.
956, 14 Prob. Rep. Ann. 445.
1223 WILLS 836

during her life, charged with said half of the repairs, taxes, in-
surance, and other legal expenses; and, upon the death of my
said daughter, M. H., I give and devise said one-half of said
premises on Middle street to the child or children of my daughter,
ee ea

Fourth. Inasmuch as my late daughter, Mrs. C. H., received
from her father property on Gray street, in Portland, I therefore
give and bequeath to my granddaughter, G. E. H., the sum of
three hundred dollars. This amount is to be invested by my ex-
ecutor, for the said G., but shall not be paid to her until she
shall become twenty-one (21) years of age. When of that age,
this sum, with its accumulations, shall be paid to her. Should
my grandchild, G., die before that period, I give and bequeath
said sum, with its accumulations, to my children then alive.

Fifth. I give and devise to my daughter, F. E. W., now of
said Portland, during her life, the use and income of the brick
dwelling house, with the land connected therewith, and now being
numbered 81, on the northeast side of State street, and in which
she now resides. My daughter is to pay all taxes, insurance, re-
pairs, and other legal charges thereon. Upon the decease of my
said daughter, F. E. W., I give and devise said premises to the
children of said F. E. W., and to their survivors or the survivor.
If either of said children should die leaving issue then alive, such
tssue shall have the parent’s share, and, if there is no such issue,
said share or shares shall descend to the survivors or the survivor.

Sixth. I give and bequeath to my daughter, Mrs. E. S. McD.,
now of Chicago, during her life, the use and income of the brick
dwelling house, with the land belonging thereto, situated at the
corner of Gray and State streets, in said Portland, together with
the use of all the household furniture of every description in
said dwelling house. My daughter, E. S. McD., is to pay all
taxes, repairs, insurance, and other legal charges thereon. Upon
the death of my daughter, E., I give and devise said premises
above mentioned, with the said household furniture, to the chil-
dren or child of said E. S. McD.

Seventh. It is my wish, and I therefore make this request of
my grandchildren, that none of them who becomes seised and
837 ENTIRE WILLS AND ADJUDICATED FORMS § 1224

possessed of any of my estate, shall sell and convey such interest
until he or she shall have owned and controlled said interest at
least for ten years, unless, from sickness, accident, or some
unforeseen circumstance, he or she is obliged to dispose of the
same.

Eighth. After payment of taxes, repairs, insurance, and other
legal charges from the income of the rest, residue, and remainder
of my estate, I give and bequeath the balance of said income to
my children, and to the survivors and survivor of them; and,
when all my children are deceased, I give, devise, and bequeath
said rest, residue, and remainder to my grandchildren, the same

to be distributed in accordance with the laws of Maine.
' Ninth. I appoint my son, J. K., executor of this, my last will
and testament, and I request the judge of probate to grant unto
him letters testamentary without requiring of him bonds or sure-
ties.°

§ 1224. Will—Gifts to a class as tenants in common—
Codicil.”.—First. I give to my beloved wife, K. D., all my per-
sonal property and estate not herein otherwise bequeathed, unless
in the contingency of my surviving her, or of her and my decease
on the same day, or by occasion of the same wreck or casualty
proving fatal to both, and in that case I bequeath said personal es-
tate to my next of kin. The provisions of this will in favor of my
wife are made by me, and are to be accepted by her, in lieu of all
claims of dower in my real estate, or any portion thereof. Second.
All my real estate, except the portions thereof hereinafter other-
wise given or disposed of, I give in like manner to my said wife, if
I leave no issue; but if I leave any children, living or after-born,
or the descendants of any deceased child, I give the real property
in this clause devised to my wife and such issue in equal shares—
that is, each child, the representative of each deceased child, as a
class, and my wife, are, severally and respectively, to take equal
shares therein.

Sixth. I give and devise to my aunt, C. E., and my cousins,

69 Hopkins v. Keazer, 89 Maine 347, 70 See ante, §§ 190, 191, 192.
36 Atl. 615, 2 Prob. Rep. Ann. 503,
§ 1224 WILLS 838

MSE ID Ey). 8 ECA Eo A eB, J, BE and SS
E. E. (each to take an equal share therein), my lots on the south-
erly side of Sixtieth street, between First avenue and Avenue A,
in the city of New York; also, my lots on the southerly side of
Sixty-first street, between First avenue and Avenue A, in the city
of New York; also, my lots and premises now or hereafter
known as “No. 276 Mott street,’”’ in the city of New York, and
also my house and lot now or heretofore known as “No. 143 Mer-
cer street,” in the city of New York.

Seventh. [Directs executors to sell certain lands and divide
proceeds between nine religious, charitable, and benevolent cor-
porations, and provided that if] any of such legatees shall have
ceased to exist, or shall be unable to take in whole or in part, or
if, for any cause, the bequests to one or more of them shall fail
to be effectual, either in whole or in part, the sum or sums be-
queathed to them, respectively, shall to that extent be divided
equally among those competent to take, and as to whom no such
impediment exists.

Eighth. I give to my issue, if any me surviving, or, if I leave
no such isstie, then to the Brooklyn Children’s Aid Society of the ,
city of Brooklyn, all my lots situate on Clinton street, Bush street,
Leonard street, Grinnell street, Richard street, Sullivan street,
Walcott street, and King street, all situate in the Twelfth ward
of the city of Brooklyn, as the wards are now numbered.

Tenth. All the residue of my real estate, if any there prove to
be, I give and devise to those who may be my heirs at law at the
time of my decease, and in the same proportion in which they
would have taken if, as to such residue, I should have died intes-
tate.

Extract from codicil.

II. I hereby request my said wife to pay, so long as
she lives, the sum of five hundred dollars ($500) annually
to the Tree-Planting and Fountain Society of the City
of Brooklyn, New York. III. I give and bequeath to the Long
Island Historical Society my library and manuscripts. IV. I
hereby direct that my remains be buried in the-Bowne plot in the
839 ENTIRE WILLS AND ADJUDICATED FORMS § 1225

Greenwood Cemetery; that my said wife have full charge over
said plot, as to all matters and directions. V. I hereby give and
bequeath to the Greenwood Cemetery the sum of two thousand
dollars ($2,000), to be retained by it in trust to receive the in-
come thereof and apply the same to the care and maintenance of
said plot.”

§ 1225. Will—Trusts—Provisions for advance and pay-
ment of claims—Codicil—Paragraph 2. I do hereby give,
devise, and bequeath unto the said H. M. B., D. F., and M. E. J.,
and in case of a vacancy, to the persons becoming trustees here-
under, and to their successors, all the property and estate, real,
personal, and mixed, of every kind, name, and nature, and where-
soever situated, which I may own or in which I may have any
interest at or after my decease, to be held by them and their suc-
cessors in trust only, and upon the trusts hereinafter declared, to
wit: * * * Clause 7. In trust to hold and pay over to such
of my own relatives and friends as are hereinafter in this clause
named the sums hereinafter in this clause specified, namely:
* * * To pay to my sister, M. D. B., the sum of one thousand
dollars ($1,000), which sum I direct to be paid to her in instal-
ments from time to time after my death as she asks for it. Also
to set apart and invest for the benefit of my sister, M. D. B., the
sum of fifteen thousand dollars ($15,000), and pay the income
therefrom semi-annually to my said sister during her natural
life, and at her death to distribute said sum of fifteen thousand
dollars ($15,000), and any income therefrom in their hands, to
the descendants of my said sister in equal shares, per stirpes and
not per capita. All moneys and property which I may have
heretofore or which I may hereafter during my life advance,
loan, or give to my said sister are to be hers absolutely, notwith-
standing the above provision for her benefit, * * * Clause 8.
In trust to hold and pay over to such of the relatives and friends
of my late husband as are hereinafter in this clause named the
sums hereinafter in this clause specified, namely: * * * Upon

71 Moffett v. Elmendorf, 152 N. Y. 475, 46 N. E. 845, 57 Am. St. 529, 2
Prob. Rep. Ann. 474.
§ 1225 WILLS 840

condition that N. B. R., of Blue Island, and his assigns, if any, or
his heirs and assigns if he be not living, do, within six months
after my decease, release and convey to my said trustees, in man-
ner and form satisfactory to my said trustees, all interest and
claims of said N. B. R., his heirs and assigns, in and to the undi-
vided half part to which my late husband held a title at his death
of lands in the southwest quarter of section two (2), township
thirty-seven (37) north, range twelve (12) east, in Palos, in said
Cook county, I direct my said trustees, after said condition has
been complied with, to set apart, invest, and hold the sum of ten
thousand dollars ($10,000), and to pay the income thereof semi-
annually to the children of the late J. R., formerly wife of said
N. B. R., or to the survivor of them, share and share alike. My
said trustees and their successors in trust shall have power, from
time to time, after this bequest takes effect, to expend so much of
the principal of said sum of ten thousand dollars ($10,000) for
the care, comfort, and maintenance of the children of said J. R.,
or any of them, as the said trustees shall, in their discretion, deem
best. If said children shall all die without leaving descendants,
then upon the death of the survivor of said children the re-
mainder of said fund of ten thousand dollars ($10,000) shall be-
come a part of my residuary estate. Should either one or more
of said children die, leaving descendants, whether before or
after my own death, one-fifth of that part of said fund remain-
ing unexpended shall be paid to the descendants of each of said
deceased children per stirpes, thereby abating proportionately
the income which the surviving children shall receive, and the
remainder of said sum of ten thousand dollars ($10,000) shall
upon the death of the survivor of said children become a part of
my residuary estate. * * * Clause 10. Should my estate and
property not be sufficient in amount or value to satisfy and dis-
charge all the devises and bequests specified in the first nine
clauses of this the second paragraph of my will, it is my intention
that such devises and bequests shall have priority in the following
order, namely: First, the provision for the payment of all my
just debts, and the expenses of my funeral, and the cost of
administration of my estate; second, the devises and bequests
841 ENTIRE WILLS AND ADJUDICATED FORMS § 1225

specified in clauses two (2), three (3), four (4), five (5), and
six (6) hereinabove; third, the bequests and legacies specified in
clause seven (7) of this paragraph of my will; fourth, the be-
quests and legacies specified in clause eight (8) of this paragraph
of my will; fifth, the bequest specified in clause nine (9) of this
paragraph of my will.

Codicil.

I, J. A. M., of Chicago, Illinois, having heretofore made
and published by last will and testament, dated February
3, 1892, which is hereby attached and is made a part hereof, be-
ing now of sound mind and memory, do make, publish, and de-
clare the following by way of codicil to my said will, namely: I
give, devise, and bequeath to my adopted daughter, M. E. J.,
all my real estate and personal property in St. Joseph township,
Berrien county, Michigan; the personal property to be hers abso-
lutely, and the real estate to be used and enjoyed by her for and
during her natural life, and after her death to go and belong to
her four children, L., J., A., and M., in equal shares, absolutely.
This provision to be in addition to all other provisions in my said
will for my said adopted daughter and her children; and it is
my will that the above property pass direct to her and her chil-
dren, and not to my trustees under the will. I hereby reduce the
bequest in trust for my sister, M. D. B., mentioned in clause 7
of paragraph 2 of my said will, to the sum of ten thousand dol-
lars, and authorize my trustees for the time being to use part of
the principal of the fund, from time to time, for the support and
comfort of my said sister, in addition to the income, as they may
deem necessary. I hereby revoke the bequest to M. J. H. men-
tioned in said clause 7, and reduce the bequest to E. H., in said
clause mentioned, to one thousand five hundred dollars. I increase
the bequest to L. M. M. so that it shall be five thousand dollars,
and I revoke the bequest of three hundred dollars to P. B. I hereby
revoke the following bequests contained in clause 8 of said para-
graph 2 of my last will, namely: The bequests to J. and M.,
daughters of L. A. S.; the bequests to the children of Mrs. S. B.;
the bequests to the children of the late W. B. 5.; the bequest to
§ 1226 WILLS 842

the daughters of L. O. M.; the bequest in trust for the children
of the late J. R., wife of N. B. R.; the bequest to M. K.; the be-
quest to the children of the late Mrs. L. B.; and I hereby reduce
the bequest to M. B., mentioned in said clause 8, to two thousand
dollars ($2,000) ; and I also reduce the bequest to Mrs. A. D.,
mentioned in said clause 8, to three thousand dollars ($3,000) ;
and I also reduce the bequest to O. K. from one thousand five
hundred dollars to one thousand dollars ($1,000). I hereby give,
devise, and bequeath to the children of the late J. R., formerly
wife of N. B. R., who shall be living at my death, the lands be-
longing to me in section 2, town 37, in Palos, Cook county, Illi-
nois, and other property to be selected by my executors of the
value of five thousand dollars—such valuation to be made by
my executors and fixed by them, or by my trustees—or my said
trustees may pay money for said five thousand dollars instead of
other property, if they shall deem best. Witness my hand and
seal this tenth day of June, A. D. 1896. J. A. M. [Seal.]”

§ 1226. Will—Trust for son—Income after death to his
widow—Trust for daughter.—First. I will and devise the
house and lot on which I reside, being my homestead, in the vil-
lage of Newark, aforesaid, including any new house or buildings
that I may, after the date of this, my will, put upon said prem-
ises, to my son, R. B. P., for and during his natural life; and
after his death, if he leaves a wife, and she has a child or children
by him then surviving, then to his wife during her life, and after
her death to his child or children absolutely in fee; if he leaves no
wife, but leaves child or children, then at and after his death to
such child or children absolutely in fee; if he leaves no child or
children, then at and after his death to my daughter, E. A. Mcl.,
for and during her natural life, and at and after her death to her
children absolutely in fee.

Third. All the rest, residue, and remainder of my real and
personal property and estate of every name, kind, and nature,
wheresoever situate (after deducting said homestead and the
articles and property hereinbefore devised and bequeathed), I

72 Rexford v. Bacon, 195 Ill. 70, 62 N. E. 936, 7 Prob. Rep. Ann. 509.
843 ENTIRE WILLS AND ADJUDICATED FORMS § 1226

will, devise, and bequeath to my executors hereinafter named,
and their successors, in trust upon and unto the uses, purposes,
and trusts hereinafter named; that is to say: The equal one-
half of said rest, residue, and remainder of my said property
and estate, I will, devise, and bequeath to my said executors and
their successors, in trust to receive the rents, issues, income, and
profits (including one-half of the interest on moneys invested )
thereof, and pay and apply the same to and for the use of my
son, R. B. P., until he shall arrive at the age of forty-five years,
if he shall so long survive, or, in case my said son R. should not
live to reach the age of forty-five years, then to apply the same
to the use of my said son during his life. When my said son
shall arrive at the age of forty-five years, if, in the judgment of
my executors, or their successors, he is a sober man, and fit to
be intrusted with said property, then my said executors or their
successors are to transfer and convey said one-half of said rest,
residue, and remainder of my said property and estate to my
said son absolutely, to be his absolutely. If, when my said son
arrives at the age of forty-five years, he is not, in the judgment
of my executors or their successors, a sober man, and is not fit
to be intrusted with said property, then my said executors or
their successors are to retain the same in their hands and control
until such time as my said son shall, in their judgment, be a sober
man, and fit to be intrusted with said property, and then they
are to transfer and convey the same to him, to be his absolutely.
During the interval before my said son shall arrive at the age
of forty-five years, or longer if they should retain possession
and control, my executors or their successors are not to sell any
of my real estate without my son R.’s consent, nor shall they,
during such time, repair or rebuild any of my real estate with-
out his advice and consent, and they are to invest any principal
or any income thereof in their hands not necessary for immedi-
ate use for the purposes of this will in bond and mortgage on
real estate or in government or New York state securities. If
my said son previous to the time of his arrival at the age of
forty-five years, or previous to the further time above men-
tioned when my said executors or their successors shall transfer
§ 1226 WILLS 844

and convey to him said half of said rest, residue, and remainder
of my said property as above provided, shall die, leaving a child
or children him surviving, then my said executors, or their suc-
cessors, shall transfer and convey said above-mentioned half
of said rest, residue, and remainder of my said property and es-
tate to such his child or children absolutely. If he, in such event
of his death within the periods last aforesaid, should leave no
child or children him surviving, but should leave a wife him
surviving, then she is to have, and I devise and bequeath to her,
one-half of the income of said half of the rest, residue, and re-
mainder of my said property, so long as she shall remain his
widow, unmarried. The other one-half of said income is to be
held by my said executors, or their successors, and paid by them
to and for the use of my daughter E. A. Mcl. In case the wife of
my said son should marry again, then the share of said income
so bequeathed to her is to go to my daughter, E. A. Mcl., if she
then survives; if not, to her children. If my said son, R., should
die before my said executors or their successors shall, under the
foregoing provisions, transfer and convey to him the said one-
half of the rest, residue, and remainder of my said property and
estate, leaving no child or children or wife him surviving, then
my said executors or their successors are to hold said one-half
of said rest, residue, and remainder, and I bequeath and devise
the same to them, in trust, to pay the rents, issues, profits, and
income of the same to and for the use of my said daughter, her
husband and children, under and upon the same trusts, and for
the same periods, as are herein below provided in regard to the
other one-half of said rest, residue, and remainder of my prop-
erty and estate herein below devised and bequeathed.

Fourth. The other one-half of all the rest, residue, and re-
mainder of all my said property and estate remaining after de-
ducting the homestead and the articles and property bequeathed
in the above paragraphs of this will, marked “First” and ‘“Sec-
ond,” I will, devise, and bequeath to my executors, hereinafter
named, and their successors, in trust to receive the rents, profits,
and income thereof (including half the interest on moneys in-
vested), and apply them to the use of my daughter, E. A. Mcl.,
845 ENTIRE WILLS AND ADJUDICATED FORMS § 1226

for and during her natural life, and from and after her death
to the use of her husband, S. B. MclI., and of her children,
equally, share and share alike, for and during the life of said
S. B. Mcl., that is, her said husband is to have one share and
each of her children is to have one share of said income; but, if
said S. B. McI. should marry again after the decease of my said
daughter, then his share of said income is to cease, anything
herein to the contrary notwithstanding. If my said daughter
should die leaving no child or children, but leaving a husband,
said executors or their successors shall apply the rents, profits,
and income of said half of said remainder of my estate to his
use so long as he remains single and unmarried, and no longer.
And if my said daughter should die, leaving no husband, but
leaving child or children, then my said executors, or their suc-
cessors, are to transfer and convey the said last-mentioned one-
half of said rest, residue, and remainder of my said property
and estate to such her child or children absolutely and equally,
and in that case I will and devise the same to them. If my said
daughter should die, leaving a husband and a child or children,
then at and after the death or remarriage of her said husband
said executors or their successors are to transfer and convey
said half of said rest, residue, and remainder of my said prop-
erty and estate to her said child or children, and I will and de-
vise the same to them in that event. If my said daughter should
die, leaving no husband or children, then, and in that case, said
half of said residue and remainder of said estate shall go to my
executors aforesaid, and their successors, the rents and profits
and income thereof to be paid and applied by them to the use
of my said son, R., for the same time as is above provided for
the other half of said residue and remainder, and upon the same
trusts, for the same length of time, and upon the same condi-
tions as is above provided for the other half of said residue and
remainder of my said property and estate.

Sixth. I will and direct that a home shall be provided for
my wife’s sister, E. M., for and during her life, at my home-
stead, and she shall have her whole support from my estate in
sickness and health and burial, the expense whereof shall be
§ 1227 WILLS 846

paid by my executors out of the net income of the whole of my
estate, the burial of said E. M. to be on my lot in the Newark
cemetery, unless she should dictate otherwise. In case of my
son R.’s death, so he is not at the homestead to keep house, and
he should wish to live somewhere else, she is to have the like
support elsewhere where she may select.

Seventh. In case I do not put up a family monument on my
burial lot in the Newark cemetery during my lifetime, then my
executors are to put up one at a cost not to exceed six hundred
dollars nor less than five hundred dollars, within three years
after my death, to be paid for out of the income of my whole
estate, the character and style of which shall be determined by
my son R.%

§ 1227. Will—Trust for son.“—All the rest and residue of
my estate, real or personal, and wherever situate at the time of
my death, I give, devise, and bequeath to my said executors, in
trust, however, for the following purposes, to wit: To hold,
manage, invest, and reinvest the same, collect the rents, profits
and income arising therefrom; to make all necessary repairs,
and pay the taxes, assessments and insurance thereon; to lease,
sell, deliver, transfer, grant and convey the whole or any part
thereof; to invest and reinvest the proceeds of sale, and gen-
erally, to have, manage and control my said estate as fully as I
might, if living, do myself; all subject, however, to the provi-
sions, conditions, limitations and restrictions hereinafter con-
tained.

(A) I direct that during the continuance of this trust, my said
executors and trustees shall use the net income arising from the
estate hereby devised and bequeathed to them as aforesaid, or so
much of said income as may be necessary therefor, for the pur-
pose of properly caring for and maintaining my son, W. L.,
and his family, if any; it being my intention that my said son
shall, insofar as said net income shall suffice, be maintained in

73 Durfee v. Pomeroy, 154 N. Y.  7%4See ante, ch. 18.

583, 49 N. E. 132, 3 Prob. Rep. Ann.
651,
847 EN1T1RE WILLS AND ADJUDICATED FORMS § 1228

the manner we have heretofore lived, and receive all necessary
care, assistance and comforts.

(B) All personal property herein bequeathed to my said ex-
ecutors and trustees shall be invested, kept invested and rein-
vested by my said executors and trustees in good interest-bear-
ing securities, secured by first-mortgage on real estate situate in
the city of Milwaukee, county of Milwaukee, and state of Wis-
consin.

(C) Incase my said executors and trustees shall sell any of
the real estate hereinbefore devised to them, I direct that the
proceeds of such sale or sales shall be invested, kept invested and
reinvested by my said executors and trustees in good interest-
bearing securities secured by first mortgage on real estate situate
in the said city of Milwaukee; for the purposes of this will
the proceeds of such sales shall be deemed real estate and shall
be disposed of my executors and trustees in the manner herein-
after provided for the disposal of my real estate.

(D) This trust shall terminate on the death of my said son,
W. L. In the event that on the termination of this trust my said
son, W. L., shall leave him surviving lawful issue, I will and
direct that my said trustees shall convey and pay over all the
estate then in their hands to such lawful issue forever.”

§ 1228. Will with alterations and codicil—Devise to near-.
est blood relatives.—I, F. S., of the village of Reeseville,
Dodge county, state of Wisconsin, being of sound mind and
memory do make, publish and declare this my last will and testa-
ment—hereby revoking all former wills, bequests and devises by
me made.

First. It is my will that all my just debts and funeral expenses
and all charges be paid out of my personal property.

Second. I give and bequeath to C. R., of Reeseville, Dodge
county, Wisconsin, as trustee, all of my moneys and property of
whatsoever kind, to hold in trust for the benefit and support of
my wife, M. S., paying her all the interest and income thereon

75 Lueft v. Tuer, 129 Wis. 534, 109 9 Ann. Cas. 639, 12 Prob. Rep. Ann.
N. W. 652, 7 L. R. A. (N. S.) 263n, 647.
§ 1228 WILLS 848

annually and keeping all the capital invested, no part of the prin-
cipal to be used.

Third. I give and bequeath to the Evangelical Lutheran Em-
manuel Church of Reeseville, Dodge county, Wisconsin, the sum
of six hundred dollars ($600), payable on my death.

Fourth. I give and bequeath all my property, after the death
of my said wife, M. S., to my nearest blood relations in equal
shares.

Fifth. I do hereby constitute and appoint C. R., of Reeseville,
Dodge county, Wisconsin, executor of this, my last will and tes-
tament.

In witness whereof I have hereunto set my hand and seal this
17th day of June, A. D. 1889. F.S.  [Seal.]

Signed, sealed and published and declared by the said F. S.
as and for his last will and testament, in the presence of us, who,
at his request in his presence and in the presence of each other,
have hereunto subscribed our names as attesting witnesses. The
word F. in the first line of this will, and in the second line of
this attestation being stricken out and the name F. being inter-
lined in their stead before signing by said testator.

2 Rp it
E. W.
Codicil.

Be it remembered that I, F. S., of the village of Reeseville,
county of Dodge, and state of Wisconsin, being of sound mind
and memory, do make this codicil to my last will and testament,
which said last will being made by me June (17th) seventeenth,
A. D. 1896.

First. It is my will that on the death of my wife, M, S., the
sum of one thousand dollars ($1,000.00) be paid to A. L., of the
village of Reeseville, county of Dodge, and state of Wisconsin,
and the sum of two hundred ($200.00) to F. S., of Lowell,
Dodge county, Wisconsin, as bequests by me to them made.

Second. All the rest of my property that remains on the death
of my said wife, after satisfying the said bequests, and paying all
necessary and legal charges, I give and bequeath to my nearest

°
849 ENTIRE WILLS AND ADJUDICATED FORMS § 1229

blood relations, if there be any; and if there be none, 1 then give
and bequeath the same to the said A. L., of Reeseville, Dodge
county, Wisconsin, and Mrs. E. S., of Lowell, Dodge county,
state of Wisconsin, in equal parts.
In witness whereof, I have hereunto set my hand and seal this
Ist day of August, A. D. 1896. Bye [Seal]
Signed, sealed, published and declared by the said F. S. as and
for a codicil to his last will and testament in the presence of us,
who, at his request, in his presence, and in the presence of each
other have hereunto subscribed our names as attesting witnesses.
BR. W.
Ee Bayle

§ 1229. Will leaving residue to prison association.—I, A.
P. R., do make, constitute and appoint this my last will and testa-
ment, hereby revoking all other wills and testaments and writings
in the nature of wills and testaments heretofore made by me, and
particularly my will made some years ago and now in possession,
as I believe, of A. M. K. I revoke that will because of certain
conditions therein, which, owing to circumstances which have
since arisen and which could not be then foreseen, might pos-
sibly defeat my chief object in making a will; and I believe that
the purpose of that will can be better accomplished by this. I
therefore revoke that will and all other wills heretofore made
by me, and make this my last will and testament.

My jewelry, silver, wearing apparel, etc., I give and bequeath
to the person whose name will be found in a memoranda amongst
my papers, stating what I give and to whom.

All the residue of my estate, both real and personal, of every
kind whatsoever of which I may die entitled, seised or possessed,
I give, devise and bequeath to the Prison Association of Virginia,
to use in establishing or in aiding in establishing anywhere within
the commonwealth of Virginia, a reformatory, house of correc-
tion, work-house or other institution of like aim and character
for such criminals, youthful offenders and persons convicted of

76Jn re Sander’s Estate, 126 Wis. 660, 105 N. W. 1064, 11 Prob. Rep.
Ann, 350.

54—Tuomp, WILLS. t
§ 1230 WILLS 850

petty crimes, under the age of twenty-one years, as the courts
and magistrates of the commonwealth of Virginia may see fit to
commit to such institution, with full power to said Prison Asso-
ciation of Virginia, or to its board of directors to use any of my
said estate in kind for said reformatory or other institution of
like aim and character, or, if in the judgment of the said Prison
Association, or of its board of directors it seem better to sell any
or all of my said estate, real or personal or both, then authority
is hereby conferred upon said Prison Association of Virginia or
its board of directors to sell the same and to use the proceeds,
principal and interest, in establishing and maintaining or in aid-
ing to establish and maintain a reformatory, work-house, or house
of correction, or other institution of like aim and character any-
where within the limits of the commonwealth of Virginia, for
such criminals under the age of twenty-one years as the courts
and magistrates of the state of Virginia may see fit to commit to
said institution.

Witness my hand this 12th day of April, in the year of our
Lord, 1890. ewe ae

§ 1230. Will—Trust for granddaughter—Remainder to
charities—Codicil revoking gift.*"—I, M. E. R., residing in
the city of Washington and the District of Columbia, being of
sound and disposing mind and memory, do make and publish and
declare this to be my last will and testament, hereby revoking and
making null and void any and all former wills and codicils by me
at any time made.

First. I direct my executor hereinafter named to first pay out
of my estate my funeral expenses and all just debts.

Second. I give, devise, and bequeath all of my estate, real,
personal or mixed, whether in posession, reversion or remainder,
now acquited or hereafter to be acquired, and wheresoever sit-
uate, to the “American Security and Trust Company,” of Wash-
ington city, District of Columbia, its successors and assigns, in

77 Prison Assn. of Va. v. Russell,. 78 See ante, § 463.
103 Va. 563, 49 S. E. 966, 10 Prob.
Rep, Ann. 162.
851 ENTIRE WILLS AND ADJUDICATED FORMS § 1230

trust nevertheless for the following uses and purposes only, that
is to say—

To invest and to reinvest the proceeds of my said estate in its
discretion from time to time in any of the following classes
of securities; that is, either in United States bonds or in munici-
pal or state bonds or in first mortgage bonds of dividend paying
railroads or in loans secured by first trusts upon real estate in
the District of Columbia, said loans not to exceed three-fourths
market value of said real estate; and to pay over so much of the
annual income from said investments and reinvestments to the
guardian or guardians of my granddaughter S. Y. H., as may be
sufficient to provide for her maintenance, education and support
until she becomes of the full age of twenty-one years, after which
period the entire income so annually received from said invest-
ments and reinvestments shall be paid over by said trustee to my
said granddaughter for her sole use and benefit for and during
the period of her natural life. Provided, however, that the in-
come thus provided for my said granddaughter for and during
the term of her natural life shall sooner cease and determine at
any time when it is ascertained by my said trustee that any part
of my said income shall have been given by said granddaughter,
or in anywise expended by or through her for the use or benefit
of R. J. H., from whom her mother, my daughter, obtained a di-
vorce with custody of said S. Y.'H., given absolutely to her said
mother. In case the income shall so cease and determine be-
fore the death of my said granddaughter then said income, and
all accumulations thereof and the entire principal of said trust
estate shall be disposed of as provided in the next succeeding item
of this, my last will and testament.

I further authorize my aforesaid trustee to sell any portion of
the estate herein conveyed to it in trust as aforesaid and to invest
and reinvest the proceeds as hereinbefore provided, giving to
purchasers good and sufficient deeds or other evidence of title,
without obligation upon the part of said purchasers to see to the
application of the purchase-money.

Third. In the event of the death of my said granddaughter
S. Y. H., or of the occurrence of the prior contingency for the
§ 1230 WILLS 852

determination of said trust hereinbefore provided in item two,
then the trust hereinbefore created and vested in the “American
Security and Trust Company” shall cease and be determined, and
so much of my said estate shall thereupon be conveyed and de-
livered over by said American Security and Trust Company to
the Hospital of the University of Pennsylvania as amounts to
five thousand dollars, said five thousand dollars to be used by
said hospital to endow and forever maintain a first-class per-
petual bed in said hospital in the city of Philadelphia, said bed to
be in the name and memory of my beloved son, M. L. R.

All the residue and remainder of my said estate of whatever
kind after the payment of said five thousand dollars for the estab-
lishment of said perpetual bed in said hospital, I give, devise and
bequeath to the “Home for Incurables” at Fordham, New York
city, in the state of New York, its successors and assigns, forever
to be used by said “Home for Incurables” to endow and forever
maintain one or more beds in said home in the name and memory
of my beloved son, M. L. R.

Fourth. I nominate and appoint M. R. W., wife of J. H. W.,
of New York city, and M. R. M., wife of J. M., of Hazleton,
Pennsylvania, and the survivors of them, to be the guardians or
guardian of the property and the person of my said granddaugh-
ter, S. Y. H., they and each of them being my valued friends and
having consented to act in that behalf.

Fifth. I hereby nominate and appoint the “American Security
and Trust Company” of Washington city, District of Columbia,
to be the sole executor of my estate.

I, -M. E. R., being of sound and disposing mind and memory
and understanding, do make and publish this codicil to my last
will and testament. I hereby revoke and annul the bequest therein
made by me to the [Hospital of the University of Pennsylvania],
and I hereby give and bequeath the five thousand dollars [hereto-
fore in my will bequeathed to said Hospital] to my friend,

_E. C,, the widow of S. C., now living in New York city, said be-
quest being on account of her kindness to my son and myself dur-
ing his and my illness and my distress.

In witness whereof I have hereto affixed my name this first day
853 ENTIRE WILLS AND ADJUDICATED FORMS § 1231

of June, in the year of our Lord eighteen hundred and ninety-
two, and I in all other things ratify and affirm my said will.”

§ 1231. Will—Determinable fee—Legacies charged—Di-
rection as to carrying on insane hospital.°°—First. It is my
will that all my just debts and funeral expenses be fully paid.

Second. It is my will, and I order and direct, that the persons
hereinafter named who are to have the control and management
of the institution known as “Oak Lawn Retreat,” viz. G. C.
McF., M. E. McF., and A. H. McF., shall, at the end of the first
year of their management, pay to my daughter M. E. F., the sum
of five hundred dollars, and, at the end of the second and third
years of their management of the said institution, a like sum of
five hundred dollars, and in no case is any payment to be made
by said parties to my said daughter unless the said institution is
under the exclusive control and management of the said parties.

Third. To my son, G. C. McF., I give my gold-headed cane.

Fourth. To my son, T. F. McF., I give my gold watch.

Fifth. Subject to the payment of the debts, funeral expenses,
contingent legacy and bequests above mentioned, and subject also
to the charges and conditions hereinafter named, I give, devise,
and bequeath to my son, G. C. McF., my daughter-in-law, M. E.
McF., and my granddaughter, A. H. McF., all of my estate, both
real and personal, wherever located or situated, to have and to
hold the same so long as.they shall carry on and conduct the
business for which the real estate above mentioned is peculiarly
and particularly adapted, viz., the care and treatment of the in-
sane. Included in the devise of real estate above mentioned is
the property known as “Oak Lawn Retreat,’ which I have im-
proved and arranged as a hospital for the care and treatment of
the insane; and it is my wish and will that my said son, G. C.
McF., be the business manager of said institution, and that my
daughter-in-law, M. E. McF., be the matron of said institution,
and that my said granddaughter, A. H. McF’. (who, under my
direction, has been specially educated in the medical profession,

79 Home for Incurables v. Noble, 80 See ante, §§ 235, 321.

172 U. S. 383, 19 Sup. Ct. 226, 43 L.
ed. 486, 4 Prob. Rep. Ann. 288,
§ i231 WILLS 854

with the view of having her assume the position of physician to
said institution), be the physician at said institution. I will and
direct that so long as the said institution, viz., Oak Lawn Re-
treat, shall be operated or managed by the said parties above men-
tioned, viz., G. C. McF., M. E. McF., and A. H. McF., they, the
said last-named parties, shall give to my son, T. F., and to my
daughter, H. N. McF., each the same care, maintenance, and
support they now receive at said institution; and they, the said
G. C. McF., M. E. McF., and A. H. McF., shall also pay to T.
F. McF. and H. N. McF., each the sum of one hundred dollars
per annum, payable in quarterly instalments. The above-named
parties who are to control and manage said institution, viz., G.
C. McF., M. E. McF., and A. H. McF., shall share equally the
profits in the business of conducting and managing the said insti-
tution.

Sixth. If the said G. C. McF., M. E. McF., and A. H.
McF. refuse to enter upon the management of said institution,
or, having entered upon the management of the same, shall at any
time deem it unprofitable or inexpedient to continue the manage-
ment of the same, then, in that event, and on their written re-
quest, such request being signed by at least two of them, I will
and direct my executors, hereinafter named, to sell all of my said
real estate at public or private sale, as they, after consulting
with my legal heirs, shall deem best; and I hereby empower my
said executors to make and execute all deeds of conveyance nec*
essary to carry out the provisions of this will. On such sale be-
ing made by my said executors, I will and direct that my said
executors shall, out of the proceeds of such sale, pay all liens and
charges on said real estate, including the costs and expenses of
such sale, and make distribution of the remainder of the pro-
ceeds of such sale as follows, to wit: First, divide such remainder
into ten equal parts or shares; second, pay such shares or parts
to the following named persons, in the following proportions, to
wit: To G. C. McF., two shares; to Mrs. M. E. McF., two shares;
to A. H. McF., two shares; to T. F. McF., two shares; to H. N.
McF., two shares.

Seventh. In the event that my son, T. F. McF., or my
855 ENTIRE WILLS AND ADJUDICATED FORMS § 1232

daughter, H. N. McF., should choose to live or reside elsewhere
than at said institution while the said institution is under the
management and control of the said parties, viz, G. C. McF.,
M. E. McF., and A. H. McF., then, if the place so chosen by them
is within thirty miles of said institution, there shall be paid to
each of them so residing away from said institution, in lieu of the
care and maintenance mentioned above, an additional sum of one
hundred dollars per annum, payable in quarterly instalments.

Eighth. I hereby nominate, constitute, and appoint J. A. B.
and R. M. H. to be the executors of this, my will.**

§ 1232. Will—Conditional legacies—Residue to Smith-
sonian Institution for scientific publications.—I bequeath to
the sister and brothers of my late wife one thousand dollars
($1,000) to be equally divided between them. I have already
given these last over a thousand dollars which my wife inherited
from her father, also clothing and other gifts, thus equalizing
substantially my gifts to her family and to mine. These bequests
are all made upon the condition that the legatees acquiesce in
this will, and I hereby bequeath the share or shares of any dis-
puting this will to the residuary legatee hereinafter named.

All the rest and residue of my estate, of whatsoever nature,
teal, personal or mixed and wheresoever situate, I hereby give,
devise and bequeath unto the Smithsonian Institute, a body cor-
porate by virtue of the laws of the United States, of which insti-
tution S. P. L. is now secretary, having its legal residence in the
District of Columbia, unto it and its successors forever.

Having always had a love for the sciences, and having ac-
quired most of my property while toiling in humble capacities to
extend and diffuse knowledge, I have concluded that the residuary
gift above made to the Smithsonian Institution will best express
my interest in science. As my labors have been directed to the
invention and use of phonetic type, I desire, but do not require,
that the income derived by the Smithsonian Institution from this
gift may be applied, so far as it may determine, to promoting

81McFarland v. McFarland, 177 Ill. 208, 52 N. E. 281, 4 Prob. Rep.
Ann. 279,
§ 1233 WILLS 856

publications in such type of scientific publication, especially of
such publications as may relate to phonetic type and printing. I
also desire, but by no means require, that such part of said in-
come as the said institution shall determine shall be applied to
the publication of lectures and treatises upon and concerning
those mechanical laws governing an ethereal medium which are
treated of in atomic chemistry, and which are supposed to gov-
ern phenomena of electricity, magnetism, light and heat. Prizes
might. be given for essays on these subjects and upon such other
kindred subjects as may meet the approval of the institution. I
would like, however, to have published first the multiplying table
and also IV-plate logarithms, publication of the table of squares,
cubes, square roots, cube roots, reciprocals, prime numbers and
factors, some of which I have written out. If the institution
shall approve, the fund derived from the residuary bequest shall
be called “the Avery fund,” or “the fund contributed by R. S. A.
and his wife, L. T. A., for the extension of the sciences,” and all
publications made from the fund shall bear this inscription.

The property known as part of lot 2 (two) in square 787 in
the city of Washington, D. C., being premises No. 326 A street
S. E., is my property, although the title stands in my wife’s name.
I include it in the residuary bequest to the Smithsonian Institu-
tion.**

§ 1233. Will by husband—Various charitable bequests—
Later will by wife, exercising power of appointment given by
husband’s will.*—Be it remembered that I, A. A. M., of Bos-
‘ton, in the county of Suffolk, and commonwealth of Massa-
chusetts, clergyman, being of sound mind and memory, do make,
publish, and ordain this, my last will and testament, in manner
and form following, viz. :

First. I direct that all the just debts I shall owe at my decease,
and also my funeral expenses, shall be paid out of my estate by
my executor and executrix, hereinafter named, as soon after my
decease as may be found convenient. I exempt from this article

. 82 Smithsonian Institution v. Meech, 83 See ante, § 373.
169 U. S. 398, 42 L. ed. 793, 18 Sup.
Ct. 396, 4 Prob. Rep. Ann. 1.
857 ENTIRE WILLS AND ADJUDICATED FORMS § 1233

the obligation held by Tufts College, which does not mature until
the decease of my wife, hereinafter named.

Second. I direct my said executor and executrix to purchase a
suitable lot for the interment of the bodies of myself and beloved
wife in Forest Hills Cemetery, or some other suitable place, to
properly grade and fit the same for its purpose, to procure and
place thereon an appropriate monument with suitable inscriptions,
and to pay the proprietors of the cemetery in which said lot shall
be situated such amount of money as may be needful to secure
their agreement to forever maintain said lot and monument in
good repair and condition, unless I shall have made these pro-
visions in my lifetime.

Third. I give and bequeath to each of my three sisters who
shall survive me, viz., A. M. P., E. E. H., and R. D. T., two
thousand ($2,000) dollars.

Fourth. I give and bequeath to A. J. P., T. and A. F. P.,
all of Lempster, N. H., and M. L. F., of Boston, and H. L. S., of
Washington, D. C., five hundred dollars ($500) each.

Fifth. I give to my beloved wife, M. S. P. M., the custody
and care of all the household furniture, plate, pictures, fuel, pro-
visions, books, watches, jewelry, ornaments, wearing apparel,
and household articles of every description which shall belong
to me at my decease, confiding to her good judgment ultimately
to dispose of them, by will or otherwise, giving such memorials
to personal friends and namesakes, both hers and mine, as she
may think best. Whatever of these articles my said wife shall
not have disposed of during her lifetime, by will or otherwise,
shall, at her decease, remain a part of my estate.

Sixth. All the rest and residue of the property and estate of
every description, real, personal, and mixed, of which I shall die
seised, or which I shall be entitled to at the time of my decease,
I give and bequeath to the Hon. N. T. and my wife, the said M.
S. P. M., and to the survivor of them, in trust, nevertheless, to
the ends and for the purposes following, viz.: (1) To keep all
such property and estate prudently invested, and take the income
thereof, and from said income, or property and estate, if at any
time the income, shall be insufficient, pay all taxes, premiums
§ 1233 WILLS 858

of insurance against loss or damage by fire, and all expenses
of repairs on my real estate, and all other taxes on and expenses
incident to the care, management, and preservation of said trust
property and estate. (2) To pay the balance of said income to
my beloved wife, the said M. S. P. M., who may occupy or other-
wise avail herself of the income of our family residence. And
since I must leave in her care and protection several persons who
might have a right to look to me, were I still living, for aid in
their possible necessities, I authorize my said wife to make such
drafts from time to time upon the estate itself, over and above the
income, for her own comfort and support, or for the comfort
and support of others, as she may determine to be necessary. I
give and devise to her this authority without any limitation what-
ever, not impairing the beforenamed obligation to Tufts College.
And since her wishes and mine entirely concur, and since circum-
stances may arise that can not be foreseen, I empower her to de-
vise and bequeath by will any and all of said estate, real and per-
sonal and mixed, held by said trustees, not impairing the obliga-
tion above named to Tufts College, as in her judgment the in-
*erests we have at heart shall require. In whatever she may do
in these respects her action shall be final, and her cotrustee shall
be held in no wise responsible.

Seventh. I authorize and empower my said trustees, and the
survivor of them, to do all acts and things in relation to the trust
property and estate, not inconsistent with the terms and provi-
sions of the trust, which I may do while living; to sell and con-
vey the same, or any part or parts thereof, and for such con-
sideration or considerations as they shall deem expedient, rein-
vesting and holding the proceeds of all sales for the same pur-
poses and upon the same trusts for and upon which the property
or estate sold was holden, but no purchaser of any of said prop-
erty or estate shall be responsible for the application of the pur-
chase-money; to lease any and all of said real estate for such
terms of time as they shall think proper; and to make, execute,
and deliver all deeds, leases, and other instruments that may be
proper in the execution of the trusts and powers herein conferred
upon them.
859 ENTIRE WILLS AND ADJUDICATED FORMS § 1233

Eighth. On the decease of my said wife, I direct my surviv-
ing trustee to pay the following bequests, provided they shall not
have been annulled or modified by any action of my wife during
her life or by any will left by her as authorized by article sixth,
paragraph second (2), viz.: (1) To the Second Society of Uni-
versalists in the town of Boston, to which I have so long and
happily ministered, and from which I have always received the
most kind and generous treatment, I give and bequeath two thou-
sand dollars, to be safely invested and kept as a fund, the in-
come to be appropriated in charity at the discretion of the stand-
ing committee, and through such agencies as they may from time
to time appoint. (2) To the Universalist Publishing House, lo-
cated at No. 30 West street, Boston, which I had the honor to
originate, I give and bequeath two thousand dollars, to be sep-
arately and safely invested and kept as a fund, the income to be
added to that of the publishing fund, so called. (3) To the
Massachusetts Convention of Universalists, as a token of the pro-
found respect I bear my brethren in the ministry, I give and be-
queath two thousand dollars, to be separately and safely invested
and kept as a fund, the income to be distributed to needy clergy-
men and their families without limitation by the rules of said con-
vention respecting residence and fellowship, but at the discretion
of its officers for the time being. (4) To Goddard Seminary,
located at Barre, Vt.; Dean Academy, located at Franklin, Mass. ;
and Westbrook Seminary, located at Deering, Maine, I give and
bequeath two thousand dollars each, to be separately and safely
invested and kept as a fund by these institutions, respectively,
and the income appropriated by their respective boards of trus-
tees at their discretion. (5) To the Universalist Society of the
town of Lempster, New Hampshire, the place of my birth, to
‘which I have always returned with pleasure, I give and bequeath
two thousand dollars, to be safely invested and kept as a fund,
and the income to be employed in securing preaching in that town
by some clergyman in fellowship with the Universalist denom-
ination; provided there shall be annually raised in said town the
further sum of twenty-five dollars, at least, to be expended in
§ 1233 WILLS 860

the same manner; on the failure of such condition for two suc-
cessive years the bequest shall revert to my estate.

In default of the conditions of any of the foregoing bequests
in this eighth article, or in case of the suspension of any of the
institutions hereinbefore named, the several bequests related to
such defaults or suspensions shall be forfeited, and shall revert
to my estate.

Ninth. All the rest and residue of my property and estate of
every description, real, personal, and mixed, not hereinbefore
disposed of, nor disposed of by my wife, I give and bequeath to
Tufts College, to be safely invested and kept as a separate fund,
the income, and the income only, to be applied to the general
purposes of the college.

Lastly. I nominate, constitute, and appoint the aforesaid Hon.
N. T. and my beloved wife, the said M. S. P. M., to be the execu-
tors of this, my last will and testament; and I direct that no bond
shall be required of them, or of either of them, for the discharge
of their duties, either as executors or trustees under this will.

In witness whereof, I, the said A. A. M., have hereunto set my
hand and seal, this twentieth day of September, in the year of our
Lord one thousand eight hundred and ninety-second.

Before the signature was affixed, the following interlineations
were made, viz.: On the third page, the word “may;” on the
fourth page, the words “look to;” on the sixth page, the word
“any; on the seventh page, the sentence, “I give and bequeath
two thousand dollars; and on the eighth page, the word “any.”

A. A. M. [Seal.]
[M.]

Signed, sealed, published, and declared by the aforesaid A. A.
M. as and for his last will and testament in the presence of us,
who, at his request, and in his presence, and in the presence of
each other, have hereunto subscribed our names as witnesses.

G. M. K.
L. H. W.
AB. P;

Will by wife.

Be it known that I, M. S. P. M., of Boston, in the common-
wealth of Massachusetts, being of sound and disposing mind and
861 ENTIRE WILLS AND ADJUDICATED FORMS § 1233

memory, do make and publish this as my last will and testament,
revoking any former wills made by me.

First. I nominate and appoint my niece, M. L. F., and A B.
P., both of Boston, to be the executors of this will, and I request
that neither of them be required to furnish sureties on their offi-
cial bonds.

Second. I give and bequeath to my sister, L. S. S., the sum
of one thousand dollars, and to my niece, M. L. F ., the sum of
four thousand dollars; both of these legacies to be paid out of
the residue of the estate of my late husband, A. A. M., D. Ds
over which, by the terms of his will, I have a power of appoint-
ment, which power I hereby exercise.

Third. All the rest, residue, and remainder of my estate, real
and personal, together with the horse, carriages, harnesses, and
carriage furnishings, and the household furniture and personal
effects, and the library left by my said husband, exercising
hereby the power of appointment vested in me, I give, devise, and
bequeath to my niece, M. L. F. This bequest is made in perfect
confidence that my said niece will make disposal of a portion of
‘the property so coming to her as she knows to be in accordance
with my wishes; but I do not intend that she shall be charged
with any trust in regard to the property, nor required to account
to the probate court for her disposal thereof.

In witness whereof, I have hereunto set my hand, and publish
and declare this to be my last will and testament, in the presence
of the witnesses named below, this twentieth day of June, in the
year eighteen hundred and ninety-five. M.S. Py BM.

Signed, published, and declared, by the above-named M. S.
P. M., as and for her last will and testament, in the presence of
us, who, at her request, in her presence, and the presence of each
other, have signed our names as witnesses hereto.

Pe Bale

M, HH.

S. C. Me

A true copy. Attest: E. G., Register.**

84 Talbot v. Field, 173 Mass. 188, 53 N. E. 403, 4 Prob. Rep. Ann. 553,
CHAPTER XXXII

EXTRACTS FROM WILLS OF FAMOUS PERSONS

SECTION SECTION
1240. Will of John James Audubon. 1252. Will of Horace Greeley.
1241. Will of Henry Ward Beecher. 1253. Will of Hetty H. R. Green.

1242. Will of Thomas H. Benton. 1254. Will of Edward H. Harriman.
1243. Will of James G. Blaine. 1255. Will of Sam Houston.

1244. Will of Edwin Booth. 1256. Will of Thomas Jefferson.
1245. Will of David J. Brewer. 1257. Will of Robert E. Lee.

1246. Will of Salmon P. Chase. 1258. Will of Cecil John Rhodes.
1247. Will of Roscoe Conkling. 1259. Will of Russell Sage.

1248. Will of Jefferson Davis. 1260. Will of Jane Lathrop Stanford.
1249. Will of Mary Baker G. Eddy. 1261. Will of George Washington.
1250. Will of Edwin Forrest. 1262, Will of John R. McLean.

1251. Will of Benjamin Franklin.

§ 1240. Will of John James Audubon.—In the name of
God, Amen: I, John James Audubon, of the city and state of
New York, do make and publish this, my last will and testament,
as follows:

Ist. First. I order and direct that all my just debts and
funeral expenses be paid as soon after my decease as con-
veniently can be done.

2d. Second. I give, devise, and bequeath to my wife, Lucy
Audubon, and to my two sons, Victor Gifford Audubon and
John Woodhouse Audubon, all my real and personal property of
whatever nature or kind soever, excepting my household furni-
ture, articles of silver and silver plate, share and share alike.

3rd. Thirdly. I give, devise, and bequeath to my wife all my
household furniture, articles of silver and silver plate.

Lastly. I nominate, constitute and appoint my two said sons
executors and my wife executrix of this, my last will and testa-
ment, hereby revoking and annulling all other and former wills
by me made.

In witness whereof I have hereunto signed my name and af-

862
863 WILLS OF FAMOUS PERSONS § 1241

fixed my seal, this nineteenth day of April in the year of our
Lord one thousand eight hundred and forty-one.
Joun JAMES AUDUBON.

§ 1241. Will of Henry Ward Beecher.—In the name of
God, Amen: I, Henry Ward Beecher, of the city of Brooklyn,
and state of New York, hereby revoking all, other and former
wills by me heretofore made, do make, publish and declare this
to be my last will and testament.

I. I hereby authorize and direct my executors, or such of
them as shall qualify, upon my death to collect and receive the
amount of my life insurance, to invest the same, and to pay the
proceeds of such investment to my wife during her life, in equal
quarter yearly payments.

II. I hereby give, bequeath, and devise unto my executors, or
such of them as shall qualify, the rest, residue and remainder of
my estate, both real and personal, of every kind, in trust for the
benefit of my children. And I hereby direct that my said execu-
tors distribute and apportion my said estate, among my said chil-
dren, in such manner and form, and at such time or times, as
shall in their judgment be for the best interest of my said chil-
dren; giving unto my said executors full powers to sell and mort-
gage such and so much of my real and personal property, as they
shall deem best, and to invest or distribute the proceeds of such
sale or sales, as herein provided.

III. It is my will, that, if any of my said children should die,
before the complete distribution of my estate as above provided,
leaving issue them surviving, that such issue shall stand and take
in the place and stead of their parent, taking per stirpes, and not
per capita.

IV. I hereby nominate, constitute and appoint my sons, Henry
B. Beecher, William C. Beecher and Herbert F. Beecher, all of
Brooklyn, New York, and my son-in-law, Rev. Samuel Sco-
ville, of Norwich, New York, the executors and trustees of this
my will, and it is my will that no bonds shall be required of them
or either of them. Henry WarpD BEECHER.

July 11, 1878.
§ 1242 WILLS 864

§ 1242, Will of Thomas H. Benton.—I, Thomas H. Ben-
ton, of the state of Missouri, now in the city of Washington
in the District of Columbia, do make and publish this, my last
will and testament, hereby revoking any and all wills made by
me at any time heretofore.

I hereby constitute and appoint my sons-in-law, William
Carvey Jones, John C. Fremont and Richard Taylor Jacob, and,
my friends, Montgomery Blair and Samuel Phillips Lee, to be
executors of this, my last will and testament.

After the payment of my just debts and charges, should there
be any such at the time of my death, I dispose of my estate as
follows:

I give, devise, and bequeath to my said executors and the sur-
vivor of them, and the heirs, executors, administrators and as-
signs of such survivor, my house and lot on C street in said
Washington city, now occupied by me, with all my furniture and
other personal property, except my books, in trust to hold the
same to the sole and separate use of my daughter, Mrs. Eliza P.
C. Jones, free from any control by, or liability for or on account
of, her present or any future husband, and subject to such direc-
tion as to the disposition of the same as shé may at any time give
in writing to my said executors and trustees, or to any of them;
and should she, in writing, direct the said property, or any part
thereof, to be commuted for other property, then to hold the
property so received in commutation on the same trust as afore-
said. It is my intention and will that my said daughter, Mrs.
Eliza P. C. Jones, may, if she so pleases, direct the property
hereby devised in trust for her, or any part thereof, to be sold,
and receive and enjoy the proceeds of such sale.

I give and bequeath all my library of books to my said son-in-
law, William Carvey Jones.

T hereby will and direct that out of the first moneys which may
be paid to my estate under subsisting contracts for a certain num-
ber of years with Messrs. Appleton & Co., of New York, pub-
lishers of my literary works, and out of the first proceeds of the
sale thereof, my said executors shall pay to my daughter, Mrs.
Eliza P. C. Jones, the sum of ten thousand dollars, and to my
865 WILLS OF FAMOUS PERSONS § 1243

daughter, Mrs. Susan T. Boileau, the sum of five thousand dol-
lars, or invest the same in trust for their sole and separate use
respectively, as they may respectively direct, and that my said
executors shall divide the residue of the moneys which may arise,
as the same shall be received from my literary works, equally
among my four daughters, Mrs. Eliza P: C. Jones, Mrs. Jessie
Ann Fremont, Mrs. Sarah McD. Jacob and Mrs. Susan T.
Boileau, or invest the same in trust for their sole and separate
use respectively, as they may respectively direct.

And I hereby will and direct that it shall be competent for any
two of my aforesaid executors and trustees, to-do any act in re-
lation to the premises which the whole five could do. In witness
whereof, I have hereto set my hand and seal, this thirteenth day
of September in the year eighteen hundred and fifty-seven.

Tuomas H. Brenton.

§ 1243. Will of James G. Blaine.—I, James G. Blaine, ot
Augusta, in the state of Maine, at present residing in the city of
Washington, D. C., being of sound and disposing mind and
memory, do make, publish and declare this to be my last will
and testament, hereby revoking all former wills by me at any
time made. :

1. I direct my executor hereinafter named to pay my just
debts and funeral expenses.

2. I give and bequeath to my daughter Margaret, to my son
James, and to my daughter Harriet, to each the sum of fifty
dollars.

3. I give and bequeath to my grandchildren, Emmons Blaine,
Blaine Coppinger and Conor Coppinger, to each the sum of
twenty-five dollars.

4, All the rest and residue of my property, real, personal, or
mixed, wheresoever situate, which I now own or may hereafter
acquire, and of which I shall die seised or possessed, I give, de-
' vise, and bequeath absolutely and in fee simple, to my wife, Har-
riet S. Blaine, her heirs and assigns forever.

5. I name, constitute and appoint my said wife, Harriet S.
Blaine, executrix of this, my last will and testament, and I re-

55—Tuomp. WILLS.
§ 1244 WILLS 866

quest that my executrix be not required to give bond for the per-
formance of her duty as such.
Witness my hand this seventh day of January, A. D. 1892.
James G. BLAINE.

§ 1244. Will of Edwin Booth.—I, Edwin Thomas Booth,
actor, do make, publish and declare this, my last will and
testament.

First. I order and direct that all my just debts be paid as soon
after my decease as may be practicable.

Second. I give and bequeath to my brother, Joseph A. Booth,
ten thousand ($10,000) dollars.

To my niece, Marie Booth Douglas, ten thousand ($10,000)
dollars.

To my nieces and nephews, Asia, Clarke Morgan, Andrienne
Clarke, Junius B. Booth, Sidney Booth, Creston Clarke and
Wilped Clarke, to each five thousand ($5,000) dollars.

To my cousins, Charlotte Mitchell, of Baltimore, and Robert
Mitchell, of North Carolina, to each, twenty-five hundred
($2,500) dollars.

To my friend, Mrs. Maria Anderson, five thousand ($5,000)
dollars.

To my friends, John H. Magonigle and his wife, Catherine, to
each, ten thousand ($10,000) dollars.

To my friend, Mrs. Margaret Devlin, a sister of Mrs. Cath-
erine Magonigle, five thousand ($5,000) dollars.

To the “Actors’ Fund,” the “Actors’ Order of Friendship,”
both of the city of New York; the ‘‘Actors’ Order of Friend-
ship,” of Philadelphia; the “Trustees of the Masonic Hall and
Asylum Fund of New York,” and the “Home for Incurables”
at West Farms, New York, to each, five thousand ($5,000)
dollars.

Third. I order and direct that my executors transfer and con-
vey all the rest, residue and remainder of my estate, real and
personal, to the Central Trust Company of New York, as trustee
for the following uses and purposes: That said trustee invest
and reinvest the same and pay the income thereof to my daugh-
ter, Edwina Booth Grossmann, during her natural life, and upon
867 WILLS OF FAMOUS PERSONS § 1244

her sole and separate receipt, and that upon her decease the said
trustee divide the said principal of said trust, together with the
income accrued thereon, into as many parts as my said daughter
shall leave children surviving her, the issue of any deceased child
of my said daughter counting one in making such division, and
pay the income of one of such portions to each of her said chil-
dren until he or she shall attain the age of twenty-one years, in
which event, the principal of such portion shall be paid to him or
her.

In the event any of her children shall die before attaining the
age of twenty-one years, without leaving issue, the portion which
he or she would have received if living at that age, shall be di-
vided, added to and disposed of as part of the portions of the
other children surviving, or of their issue if deceased.

The issue of any deceased child of my said daughter shall, in
every event, take what its parent would have taken if living at
the time of the decease of my daughter.

Fourth. I authorize and empower my executors, or any of
them who may qualify as such executors, their survivor or sur-
vivors, successor or successors, to sell and convey at public auc-
tion or private sale, and upon such terms as they may approve,
any or all of the real or personal estate of which I shall die pos-
sessed, wheresoever the same may be situate.

Fifth. I authorize and empower my trustee, hereinbefore
named, or its successor in said trust, to hold and retain any se-
curity, bonds, stocks or investments of which I shall die pos-
sessed, as part of the said trust fund to be held by it under this,
my will.

Sixth. I hereby nominate and appoint my friends, Elias C.
Benedict, William Bispham and John H. Magonigle, all of New
York city, executors of this, my last will and testament, hereby
revoking all other and former wills by me made, and I request
that no bond or other security be required from my said execu-
tors for the faithful performance of their trust.

In witness whereof, I have hereunto signed my name and af-
fixed my seal, this fifteenth day of June, A. D. 1892.

Epwin T. Booru.
§ 1245 WILLS 868

§ 1245. Will of David J. Brewer.—In the name of God,
Amen: I, David J. Brewer, being of sound mind and memory,
do make, publish, and declare the following to be my last will
and testament.

Item First. I give and devise my home, No. 1923 Sixteenth
street N. W., Washington, D. C., to my wife, Emma M. Brewer;
the legal title is now in her—probably this is sufficient, but as
most of the cost was paid by me, I make this devise to avoid all
question.

Item Second. I give, devise, and bequeath, to my daughters,
Harriet B. Jetmore, Henrietta B. Karrick and Elizabeth B.
Wells, share and share alike, my cottage at. Thompson’s Point,
with all the personal property in or connected with it. On the
thirty-fifth anniversary of my marriage to my then wife, Louise
L. Brewer, I deeded this property to her. Whether such a deed
from husband to wife is good under the laws of Vermont I do
not know, and so make this devise and bequest to avoid all ques-
tion of our children’s full title.

Item Third. I have thirty thousand dollars life insurance
which was made payable to my wife, Louise L. Brewer. I find
in the several policies different provisions respecting the benefi-
ciaries in case of her death. To carry out the intent with which
these policies were taken out, I give and bequeath to my said
daughters, share and share alike, those policies and all sums
which may be due thereon. The policy in the New York Mutual
provides for a twenty-year five per cent. gold bond. I desire that
this be taken out in the name of Harriet B. Jetmore and be her
share in said life insurance. I prefer a registered bond if ob-
tainable.

Item Fourth. I give and bequeath to my wife, Emma M.
Brewer, all the furniture, including therein pictures, in my home,
which has been purchased since our marriage.

Item Fifth. I give and bequeath all other personal property
to my said daughters, share and share alike.

I appoint my wife, Emma M. Brewer, and my son-in-law,
James L. Karrick, to execute this, my will, and desire that no
bonds be required of them.
869 WILLS OF FAMOUS PERSONS § 1246

In witness whereof, I have hereto signed my name this 25th
day of October, 1906. Davip J. BREWER.

Codicil to the foregoing will.

I, David J. Brewer, the testator in said will, attach thereto and
make the following additional provisions: i

Item (1). The gold watch given me by the lawyers of Leaven-
worth county, I give unto my grandson, David Brewer Karrick.
The watch given me by my wife, Emma M. Brewer, I give to her
grandnephew, David Brewer Hall. The ring I wear on the little
finger of my left hand, given me by my wife, Louise L. Brewer,
I give to my grandson, David Brewer Jetmore. My scrap-books
and the books edited by me, as well as the bound volumes of my
talks and writings, I give tomy daughter, Etta B. Karrick. The
Bible given me by my wife, Louise L. Brewer, I give to my _
granddaughter, Harriet Louise Jetmore. Out of my other per-
sonal property I wish my executor and executrix to select for
each of my grandchildren, not specifically named herein, some
suitable article as a special gift from grandfather.

Item (2). I wish to be buried in Leavenworth by the side of
my wife, Louise L. Brewer.

Item (3). In case of the death of my wife, Emma M.
Brewer, before my own death, then I direct that all the gifts to
her are annulled and revoked, and my entire property, with the
special bequests excepted, I give, devise, and bequeath to my
daughters, share and share alike. In witness whereof, I have

hereto set my hand and seal this 7th day of March, 1908.
Davip J. BREWER.

§ 1246. Will of Salmon P. Chase.—I appoint Henry D.
Cooke, of Washington, sole executor of this, my last will and
testament.

I require that all my just debts be paid and discharged from
the assets which will come into his hands.

Of the residue it is my will that an income at seven per cent. on
six thousand dollars be paid to my niece, Jane Auld, during her
life, and that if her daughters survive her that the principal

thereof be paid to them equally.
§ 1247 WILLS 870

It is my further will that of the residue of my estate there be
transferred to the Wilberforce University, nine thousand dollars,
in a bond or bonds of the Western Union Telegraph Company,
and one thousand dollars in a bond of the Cleveland and Pittsburg
Railroad Company; and to Dartmouth College, three thousand
dollars in the bonds of the Washington and Georgetown Rail-
road Company, and seven thousand dollars in the bonds of the
Warren and Franklin Railroad Company.

It is my will that, whateyer sum may be due to me from my late
brother, Edward L. Chase, may be wholly remitted to his widow
and administratrix, of Lockport, N. Y.

I bequeath the picture of Chief Justice Marshall, presented to
me by the members of the bar and other citizens of New York,
to the United States for the use of the Supreme Court.

It is my will that the remainder of my estate be distributed in
equal parts to my.two dear children, Katherine Chase Spraguc
and Janet Ralston Chase.

I commit my soul to the mercies of God, in Christ Jesus our
Saviour, through the Holy Spirit.

Signed and sealed in the presence of Jacobs W. Schuckers and
R. C. Parsons, as my last will and testament, this 19th day of
November in the year of our Lord one thousand eight hundred
and seventy. ». DP. CHASE,

§ 1247. Will of Roscoe Conkling.—I, Roscoe Conkling,
of Utica, N. Y., do make, publish and declare my last will and
testament as follows:

I give, devise, and bequeath to my wife, Julia, and to her heirs
and assigns, forever, all my property and estate whether real,
personal or mixed, and I constitute and appoint my said wife
sole executrix of this, my will.

In testimony whereof, I hereto sign my name this 21st of June,
A. D. 1867. RoscoE CONKLING.

§ 1248. Will of Jefferson Davis.—I, Jefferson Davis, of
the county of Harrison and state of Mississippi, being of sound
and disposing mind, but of such advanced age, as to suggest a
near approach of death, do make this my last will and testa-
871 WILLS OF FAMOUS PERSONS § 1248

ment, written with my own hand and signed in the presence of
three competent witnesses.

1. I give and bequeath to my wife, Varina Davis, all of my
personal belongings, including library, furniture, correspondence
and the Brierfield plantation (proper) with all its appurtenances,
being and situated in the county of Warren, state of Mississippi,
and being the same on which we lived and toiled together for
many years from the time of our marriage.

2. I give and bequeath to Mary Routh Ellis, of Philadelphia,
Pa., all of my right, title, and interest in and to the “Elliston”
plantation, being and situated in the parish of Tensas, state of
Louisiana, the same being the place on which her father resided.

3. I give and bequeath to Mary Ridgely Dorsey, eldest daugh-
ter of William H. G. Dorsey, of Howard county, state of Mary-
land, all of my right, title and interest in and to the “Limerick”
plantation, being and situated in the parish of Tensas, state of
Louisiana, viz., the interest in and to so much of said planta-
tion as was the property of the late Mrs. Sarah A. Dorsey.

4. I give and bequeath to my daughter, Varina Anne Davis,
all the other property, real, personal and mixed, which was in-
herited by me from Mrs. Sarah A. Dorsey, deceased, and of
which I may die seised and possessed.

5. To my wife, Varina Davis, and to my daughters, Mar-
garet Davis Hayes, and Varina Anne Davis, as residuary lega-
tees, I give and bequeath all the property, real, personal and
mixed, of which I may die seised and possessed, and which has
not been disposed of by the preceding articles.

6. I appoint my tried and true friend, Jacob U. Payne, of
New Orleans, La., and my son-in-law, J. Addison Hayes, Jr.,
of Memphis, Tenn., executors of this, my last will and testament,
they to serve without bond, and to have immediate seisure and
possession of all my property, contemporaneously with the hap-
pening of my death, and to each 1 delegate the power to select and
appoint his successor, to take effect in the contingency of the
death of either, before the affairs of the estate have been finally
settled.

In testimony whereof, this will, written by my own hand, is
§ 1249 WILLS 872

signed on the day and date below written, and in the presence of
Frank Kennedy, R. W. Foster and A. Evans.
Saturday, 20th February, 1886. JEFFERSON Davis.

§ 1249. Will of Mary Baker G. Eddy.—Be it known that

I, Mary Baker G. Eddy, of Concord, New Hampshire, being of
sound and disposing mind and memory, do make, publish and
declare this to be my last will and testament, in manner and form
following, that is to say:
1. I hereby nominate and appoint Honorable Henry M.
Baker, of Bow, New Hampshire, sole executor of this, my last
will and testament; and, having ample confidence in his ability
and integrity, I desire that he shall not be required to furnish
sureties on his official bond.

2. Having already transferred and given to my son, George
W. Glover, of Lead City, South Dakota, four certain mortgage
deeds bought of the Farmers’ Loan and Trust Company, of the
state of Kansas, and having already given him a house and lot
located in Lead City, South Dakota, and moneys at various times,
I hereby confirm and ratify said transfers and gifts, and, in
addition thereto, I give and bequeath to my said son, George W.
Glover, the sum of ten thousand dollars.

3. I give and bequeath to George H. Moore, of Concord, New
Hampshire, the sum of one thousand dollars; to each of the five
children of my son, George W. Glover, the sum of ten thousand
dollars; to Mrs. Mary A. Baker, of Boston, Massachusetts,
widow of my late brother, the sum of five thousand dollars; to
Frances A. Baker, of Concord, New Hampshire, the sum of one
thousand dollars; to Henrietta E. Chanfrau, of Philadelphia,
Pa., the sum of one thousand dollars; to Fred N. Ladd, of Con-
cord, New Hampshire, the sum of three thousand dollars; to my
adopted son, Benjamin J. Foster, M. D., the sum of five thousand
dollars; to Calvin A. Frye, of Concord, New Hampshire, the
sum of ten thousand dollars, provided he continues in my serv-
ice to the date of my decease; to Pauline Mann, of Concord,
New Hampshire, the sum of one thousand dollars, provided she
continues in my service to the date of my decease; to Joseph G.
873 WILLS OF FAMOUS PERSONS § 1249

Mann, of Concord, New Hampshire, three thousand dollars, pro-
vided he continues in my service to the date of my decease; to
Laura E. Sargent, of Concord, New Hampshire, three thousand
dollars, provided she continues in my service to the date of my
decease.

4. I give and bequeath to the Mother Church—First Church

of Christ, Scientist, in Boston, Massachusetts—the sum of fifty
thousand dollars.
5. I give and devise to Calvin A. Frye and Joseph G. Mann,
above named, provided they shall respectively remain in my serv-
ice to the date of my decease, the right, during the term of their
respective natural lives, to occupy and use my homestead and
grounds called “Pleasant View,” in Concord, New Hampshire,
as their residence and home, but the rights hereby conditionally
granted to said Frye and Mann shall not be assignable to any
other person. Said homestead and grounds connected therewith
shall not be leased to, or occupied by, any persons, except as
herein provided. No part of said homestead, or lands connected
therewith, shall be devoted to any other uses or purposes than
those of a home for said Frye and Mann during their respective
lives (provided they respectively remain in my service to the
date of my decease) and a home for my grandchildren according
to the terms of this will and, after the termination of the
rights of said Frye and Mann and my grandchildren as herein
provided, as a place for the reception, entertainment, and care
of Christian Science visitors and their friends, and to such
other purposes looking to the general advancement of the Chris-
tian Science religion as may be deemed best by the residuary
legatee. All the personal property, except my jewelry, in and
about said homestead and lands shall be kept and carefully used
on said premises.

In my contract with Edward A. Kimball, of Chicago, dated
October 9,1899, provision is made for the creation of a trust fund
for the purpose of procuring an annual revenue or income which
shall be used for maintaining in a perpetual state of repair my
said homestead. A further provision is also made for that pur-
pose in said contract. If, for any reason, sufficient funds for
§ 1249 WILLS 874

such purposes shall not be provided from the sources named in
said contract, then I direct that my residuary legatee shall pro-
vide and expend such sums, from time to time, as may be neces-
sary for the purpose of maintaining said homestead and grounds
in a perpetual state of repair and cultivation.

I hereby give and devise to my grandson, George W. Glover,
Jr., the right and privilege of living and having a home at Pleas-
ant View, and of being supported therein in a reasonable man-
ner, at the expense of my estate, while he is obtaining his edu-
cation preparatory to admission to Dartmouth College, provided
he shall select and choose to obtain his education at that institu-
tion. I also direct my executor to pay all of said George W.
Glover, Jr.’s, reasonable expenses while at said college, giving
him, in the meantime, the privilege of a home at Pleasant View.

I also give and devise to my granddaughters, the right and
privilege of living and having a home at Pleasant View, and of
being supported therein in a reasonable manner, at the expense
of my estate, while they, or either of them, are obtaining a high-
school education, provided they, or either of them, desire the ad-
vantages ‘of such course.

6. I give and bequeath to the Christian Science Board of Di-
rectors of the Mother Church—The First Church of Christ,
Scientist, in Boston, Massachusetts—and their successors in of-
fice, the sum of one hundred thousand dollars, but, nevertheless,
in trust for the following purposes, namely: Said trustees shall
hold, invest, and reinvest the principal of said fund and con-
servatively manage the same, and shall use the income and such
portion of the principal, from time to time, as they may deem best,
for the purpose of providing free instruction for indigent, well-
educated, worthy Christian Scientists at the Massachusetts Meta-
physical College, and to aid them thereafter until they can main-
tain themselves in some department of Christian Science.

I desire that the instruction for which provision is hereby made
shall be at the said college, but my said trustees are hereby au-
thorized to provide said instruction elsewhere, if, in the unani-
mous judgment of all said trustees for the time being, such
course shall seem best. The judgment and discretion of said
875 WILLS OF FAMOUS PERSONS § 1249

trustees with reference to the persons to be aided as herein
provided and the amount of aid furnished to each of said per-
sons shall be final and conclusive.

7. I hereby ratify and confirm the following trust agree-
ments and declarations, viz. :

(1) The deed of trust dated September 1, 1892, conveying
land for church edifice in Boston and on which the building of
the First Church of Christ, Scientist, now stands.

(2) The trust agreement dated January 25, 1898, conveying
to Edward P. Bates, James A. Neal, and William P. McKenzie,
and their successors, the property conveyed to me by the Chris-
tian Science Publishing Society, by bill of sale dated January
21, 1898, the said trust being created for the purpose of more
effectually promoting and extending the Eee of Christian
Science as taught by me.

(3) The trust agreement dated February 12, 1898, specifying
the objects, purposes, terms, and conditions on which the First
Church of Christ, Scientist, in Boston, Massachusetts, shall hold
the real estate situated at No. 385 Commonwealth Avenue, in
Boston, Massachusetts, which was conveyed by me to said
church on said February 12, 1898.

(4) The trust agreement dated January 31, 1898, whereby
certain real estate was conveyed to George H. Moore, Calvin
A. Frye, and Ezra M. Buswell, and their successors, and, in
addition thereto, the sum of one hundred thousand dollars, for
the purpose of a Christian Science church to be erected on said
real estate.

(5) The trust agreement dated May 20, 1898, under which
the sum of four thousand dollars was transferred to the First
Church of Christ, Scientist, in Boston, for the benefit of the
children contributors of the Mother’s Room in said church.

(6) The deed of trust dated December 21, 1895, transfer-
ring five hundred dollars to the trustees of Park Cemetery As-
sociation of Tilton, New Hampshire.

8. I give, bequeath, and devise all the rest, residue and re-
mainder of my estate, of every kind and description, to the
Mother Church—The First Church of Christ, Scientist, in Bos-
§ 1249 WILLS 876

ton, Massachusetts—in trust for the following general pur-
poses: I desire that such portion of the income of my resid-
uary estate as may be necessary shall be used for the purpose of
keeping in repair the church building and my former house at
No. 385 Commonwealth Avenue in said Boston, which has been
transferred to said Mother Church, and any building or build-
ings which may be, by necessity or convenience, substituted
therefor; and, so far as may be necessary, to maintain my said
homestead. and grounds (‘Pleasant View” in Concord, New
Hampshire) in a perpetual state of repair and cultivation, for
the uses and purposes heretofore in this will expressed; and I
desire that the balance of said income, and such portion of the
principal as may be deemed wise, shall be devoted and used by
said residuary legatee for the purpose of more effectually pro-
moting and extending the religion of Christian Science as taught
by me.

Witness my hand and seal this thirteenth day of September,
A. D. 1901. Mary B. G, Eppy.

Codicil.

Be it known that I, Mary Baker G. Eddy, of Concord, New
Hampshire, do hereby make, publish and declare a codicil to
my last will and testament, originally dated September 13, 1901,
a duplicate of said will having been this day re-executed by me
upon the discovery of the loss of the original, dated September
13, 1901, as aforesaid, in manner following, namely:

1. I hereby revoke the bequest, in paragraph numbered 5 of my
said will, to Joseph G. Mann, of the right to occupy with Calvin
A. Frye my homestead premises known as “Pleasant View,”
during the lifetime of the said Mann, and I hereby bequeath
unto Irving C. Tomlinson, of Concord, New Hampshire, and
to his sister, Mary E. Tomlinson, the right during the term of
their respective lives to occupy and use as a home said premises
known as “Pleasant View,” said occupancy and use by them to
be personal to them and not assignable to any other person by
them or either of them, and shall be exercised with due regard
877 WILLS OF FAMOUS PERSONS § 1249

to the rights of other persons named in said will, except said
Mann, to occupy and enjoy said premises.

2. I give and bequeath to Laura E. Sargent the sum of five
thousand dollars ($5,000), this legacy to be in lieu of the legacy
provided for her in paragraph numbered 3 of my said will, and
to be unconditional.

3. I give, devise, and bequeath to the Second Church of
Christ, Scientist, in New York City, a sum not exceeding one
hundred and seventy-five thousand dollars ($175,000), sufficient
to pay the indebtedness which may exist at the time of my de-
cease upon the church edifice of said Second Church of Christ,
Scientist, and direct that said sum of one hundred and seventy-
five thousand dollars ($175,000), or so much thereof as may be
necessary for the purpose, shall be applied as soon as may be
after my decease to or toward the extinguishment of said in-
debtedness; if the amount required for this purpose shall not be
as much as one hundred and seventy-five thousand dollars
($175,000), then this legacy shall be limited to the amount ac-
tually required.

4. I give and bequeath to Mrs. Pamelia J. Leonard, of
Brooklyn, New York, the sum of three thousand dollars
($3,000) ; to Mrs. Augusta E. E. Stetson, of New York City, my
“crown-of-diamonds” breastpin; to Mrs. Laura Lathrop, of
New York City, my diamond cross; to Mrs. Rose Kent, of James-
town, New York, my gold watch and chain; and to Henry M.
Baker, of Bow, New Hampshire, my portrait set in diamonds.

5. Mrs. Mary A. Baker, to whom I have bequeathed five thou-
sand dollars ($5,000), by my will, having deceased since the
original execution of said will on September 13, 1901, I hereby
revoke the legacy therein provided for her.

6. The bequest in my will to Calvin A. Frye is hereby in-
creased to twenty thousand dollars, but subject to the same con-
dition as therein provided.

I hereby ratify and reaffirm my will as originally executed on
September 13, 1901, and as again executed this day, in all re-
spects except as herein modified.

In witness whereof I have hereunto set my hand and seal at
§ 1249 WILLS 878

Concord, New Hampshire, this seventh day of November, A. D.
1903. Mary Baker G. Eppy.

Be it known that I, Mary Baker G. Eddy, of Concord, New
Hampshire, do hereby make, publish, and declare this second
codicil to my last will and testament originally dated September
13,, 1901, a duplicate of said will, having been re-executed by
me on November 7, 1903, in manner following, namely:

1. I hereby direct and require that the executor of my will
shall sell, within three months after his appointment, at public
auction, or, if he sees fit, at private sale, for such price as he may
determine upon and to such purchaser as he may see fit, my real
estate in said Concord known as “Pleasant View,’ consisting of
my homestead and the grounds occupied in connection therewith,
and I hereby direct that the proceeds of such sale shall be forth-
with paid over to the directors of the First Church of Christ,
Scientist, in Boston, Massachusetts, to be used for such purposes
in connection with said church as said directors may determine.
Nothing contained in my will or codicils thereto shall be con-
sidered inconsistent with said church purchasing said real estate,
if the directors may consider it desirable so to do.

I hereby revoke the provisions of my will and first codicil pro-
viding for the occupancy of said real estate by various persons,
the preservation and maintenance thereof at the expense of my
estate, and all other provisions of my will and codicil inconsistent
with the foregoing direction to my executor to sell said reai estate.

2. I hereby give and bequeath to the First Church of Christ,
Scientist, in Boston, Massachusetts, all the contents of my said
homestead and of the other buildings at “Pleasant View,” ex-
cept so far as any of the same may be specifically bequeathed in
my will and codicils thereto, which specific bequests I do not
modify by this provision, the same to be kept or disposed of as
may be determined by the directors of said church; but I direct
that Calvin A. Frye shall have the privilege of selecting from
said articles such keepsakes or mementos, not exceeding in in-
trinsic value the sum of five hundred dollars, as he may desire,
and I give and bequeath the same to him when so selected.

3. I hereby direct that said Calvin A. Frye shall be provided
879 WILLS OF FAMOUS PERSONS § 1250:

with a suitable home in my house at No. 385 Commonwealth
Avenue, Boston, if he so desires, he to have the exclusive occu-
pancy of two furnished rooms therein, to be designated by my
executor, and to have his board, suitable heat, light, and all other
things necessary for his comfortable occupancy of said prem-
ises during his natural life, the expense thereof to be provided out
of the income from the residue of my estate which I have left to
said The First Church of Christ, Scientist, in Boston, Massa-
chusetts.

4. I give and bequeath to Lydia B. Hall, of Brockton, Massa-
chusetts, the sum of one thousand dollars.

5. I give and bequeath to Irving C. Tomlinson, of said Con-
cord, the note which I hold signed by him, it being my intention
hereby to release him from said indebtedness.

In all other respects except as herein specified, I hereby ratify
and reaffirm my will and codicil above mentioned.

In witness whereof I have hereunto set my hand and seal at
Concord, New Hampshire, this fourteenth day of May, A. D.
1904. Mary Baker G. Eppy.

The will is duly attested by four witnesses and the two codicils.
have three each.

§ 1250. Will of Edwin Forrest.—After making numer-
ous bequests to friends and servants, he directed the bulk of his
large estate to be placed in the hands of trustees, under a scheme
for the support and maintenance of actors and actresses decayed
by age or disabled by infirmity. This institution was to be known
as “The Edwin Forrest Home.”

The following is an outline of my plan for said Home, which
may be filled out in more detail by the charter and by-laws:

Article I. The said institution shall be for the support and
maintenance of actors and actresses decayed by age or disabled
by infirmity, who, if natives of the United States, shall have
served at least five years in the theatrical profession, and if of
foreign birth shall have served in that profession at least ten
years, whereof three years next previous to the application shall
have been in the United States, and who shall in all things com-
§ 1250 WILLS 880

ply with the laws and regulations of the Home, otherwise be sub-
ject to be discharged by the managers, whose decision shall be
final.

Article II. The number of inmates in the Home shall never
exceed the annual net rent and revenue of the institution, and
after the number of inmates therein shall exceed twelve, others to
be admitted shall be such only as receive the approval of the ma-
jority of the inmates, as well as of the managers.

Article III. The said corporation shall be managed by a board
of managers, seven in number, who shall in the first instance be
chosen by the said trustees and shall include themselves, so long
as any of them shall be living, and also the mayor of the city of
Philadelphia, for the time being, and as vacancies shall occur the
existing managers shall from time to time fill them, so that, if
practicable, only one vacancy shall ever exist at a time.

Article IV. The managers shall elect one of their number to
be the president of the institution, appoint a treasurer and secre-
tary, steward and matron, and, if needed, a clerk; the said treas-
urer, secretary, steward, matron and clerk, subject to be at any
time discharged by the managers. Except the treasurer, the said
officers may be chosen from the inmates of the Home, and the
treasurer shall not be a manager, nor either of his sureties. The
managers shall also appoint a physician for the Home.

Article V. Should there be any failure of the managers to
fill any vacancy which may occur in their board for three months,
or should they in any respect fail to fulfill their trust according
to the intent of my will and the charter of the institution, it is
my will that upon the petition of any two or more of said man-
agers, or of the mayor of the city, the Orphans’ Court of Phila-
delphia County shall make such appointments to fill any vacancy
or vacancies and all orders and decrees necessary to correct any
failure or breach of trust which shall appear to said court to be
required, as in case of any other testamentary trust, so that the
purposes of this charity may never fail or be abused.

Article VI. The purposes of the said “Edwin Forrest Home”
are intended to be partly educational and self-sustaining, as well
as eleemosynary, and never to encourage idleness or thriftlessness
881 WILLS OF FAMOUS PERSONS § 1250

in any who are capable of any useful exertion. My library shall
be placed therein in precise manner as now it exists in my home
in Broad street, Philadelphia. There shall be a neat and pleasant
theater for private exhibitions and histrionic culture. There shall
be a picture gallery for the preservation and exhibition of my
collection of engravings, pictures, statuary and other works of
art, to which additions may be made from time to time, if the
revenues of the institution shall suffice. These objects are not
only intended to improve the taste, but to promote the health ard
happiness of the inmates and such visitors as may be admitted.

Article VII. Also, as a means of preserving health and, con-
sequently, the happiness of the inmates, as well as to aid in sus-
taining the Home, there shall be lectures and readings therein
upon oratory and histrionic art, to which pupils shall be admitted,
upon such terms and under such regulations as the managers may
prescribe. The garden and grounds are to be made productive of
profit, as well as of health and pleasure, and, so far as capable,
the inmates, not otherwise profitably occupied, shall assist in farm-
ing, horticulture and the cultivation of flowers in the garden and
conservatory.

Article VIII. “The Edwin Forrest Home” may also, if the
revenues shall suffice, embrace in its plan lectures on science, lit-
erature and the arts, but preferably oratory and the histrionic
art, in manner to prepare the American citizen for the more cred-
itable and effective discharge of his public duties, and to raise
the education and intellectual and moral tone and character of
actors, that thereby they may elevate the drama and cause it to
subserve its true and great mission to mankind, as their pro-
foundest teacher of virtue and morality.

Article IX. “The Edwin Forrest Home” shall also be made
to promote the love of liberty, our country and her institutions,
to hold in honor the name of the great dramatic bard, as well as
to cultivate a taste and afford opportunity for the enjoyment of
social rural pleasures. Therefore, there shall be read therein to
the inmates and public, by an inmate or pupil thereof, the im-
mortal Declaration of Independence, as written by Thomas Jef-
ferson, without expurgation, on every Fourth Day of July, to

56—Tuomp, WILLS,
§ 1250 WILLS 882

pe followed by an oration under the folds of our national flag.
There shall be prepared and read therein before the like as-
semblage, on the birthday of Shakespeare, the twenty-third of
April, in every year, an eulogy upon his character and writings,
and one of his plays, or scenes from his plays, shall on that day
be re-presented in the theater. And on the first Mondays of every
June and October “The Edwin Forrest Home” and grounds shall
be opened for the admission of ladies and gentlemen of the theat-
rical profession and their friends, in the manner of social picnics,
when all provide their own entertainments.

The foregoing general outline of my plan of the institution I
desire to establish has been sketched during my preparations for
a long voyage by sea and land, and, should God spare my life, it
is my purpose to be more full and definite; but should I leave no
later will or codicil, my friends who sympathize in my purposes
will execute them in the best and fullest manner possible, under-
standing that they have been long meditated by me, and are very
dear to my heart. They will also remember that my professional
brothers and sisters are often unfortunate, and that little has been
done for them, either to elevate them in their profession or to
provide for their necessities under sickness or other misfortunes.
God has favored my efforts and given me great success, and I
would make my fortune the means to elevate the education of
others and promote their success, and to alleviate their sufferings
and smooth the pillows of the unfortunate, in sickness or other
disability, of the decay of declining years.

These are the grounds upon which I would appeal to the legis-
lature of my native state, to the chief magistrate of my native
city, to the courts and my fellow-citizens, to assist my purposes,
which I believe to be demanded by the just claims of humanity,
and by that civilization and refinement which springs from intel-
lectual and moral culture. .

I, therefore, lay it as a duty upon my trustees to frame a bill
which the legislature may enact, as and for the charter of said
institution, which shall ratify the articles in said outline of plan;
shall authorize the mayor of the city to act as one of its managers,
and the said court to exercise the visitatorial jurisdiction in-
883 WILLS OF FAMOUS PERSONS § 1251

voked, and prevent streets from being run through so much of
the Springbrook grounds as shall include the buildings and sixty
acres of ground. Such a charter being obtained, the corporation
shall be authorized, at a future period, to sell the grounds outside
said space, the proceeds to be applied to increase the endowment
and usefulness of the Home. And so far as I shall not have built
to carry out my views, I authorize the said managers, with con-
sent of my sisters, or survivor of them, having a right to reside
at Springbrook, to proceed to erect and build the buildings re-
quired by my outline of plan, and toward their erection apply the
income accumulated or current of my estate, and should my sis-
ters consent, or the survivor of them consent, in case of readiness
to open the Home, to remove therefrom, a comfortable house shall
be procured for them elsewhere, furnished and rent and taxes
paid, as required in respect to Springbrook, at the cost and charge
of my estate or of the said corporation, if then in possession
thereof. Whensoever the requisite charter shall be obtained and
the corporation be organized and ready to proceed to carry out
its design, then it shall be the duty of said trustees to assign and
convey all my said property and estate unto the said “Edwin For-
rest Home,” their successors and assigns, forever, and for the lat-
ter to execute and deliver, under the corporate seal, a full and ab-
solute discharge and acquittance forever—with or without audit-
ing of accounts by an auditor of the court, as they may think
proper—unto the said executors and trustees.

In testimony whereof, I have hereunto set my hand and seal
this fifth day of April, eighteen hundred and sixty-six.

Epwin Forrest.

§ 1251. Will of Benjamin Franklin.—I, Benjamin Frank-
lin, printer, late Minister Plenipotentiary from the United States
of America to the court of France, now president of the state of
Pennsylvania, do make and declare my last will and testament as
follows:

To my son, William Franklin, late governor of the Jerseys,
I give and devise all the lands I hold, or have a right to, in the
Province of Nova Scotia, to hold to him, his heirs and assigns,
forever. I also give to him all my books and papers which he
§ 1251 WILLS 884

has in his possession, and all debts standing against him on my
account books, willing that no payment for, nor restitution of
the same be required of him by my executors. The part he
acted against me in the late war, which is of public notoriety, will
account for my leaving him no more of an estate he endeavored
to deprive me of.

I give and devise my dwelling-house, my said three new iwiiees
my printing office and also my silver plate, pictures and house-
hold goods of every kind, now in my said dwelling-house, to my
daughter, Sarah Bache, and to her husband, Richard Bache, to
hold to them for and during their natural lives, and the life of
the longest liver of them: and from and after the death of the
survivor of them, I do give, devise, and bequeath the same to all
children already born, or to be born, of my said daughter, and to
their heirs and assigns, forever, as tenants in common and not
as joint tenants. :

All lands near the Ohio and the lots near the center of Phila-
delphia, which I lately purchased from the state, I give to my
son-in-law, Richard Bache, his heirs and assigns, forever; I also
give him the bond I have against him of two thousand seventy-
two pounds five shillings and direct the same to be delivered up
to him by my executors canceled, requesting that in consideration
thereof, he would immediately after my decease manumit and set
free his negro man, Bob; I leave him also the money due me from
the state of Virginia for types; I also discharge him, my son-in-
law, from all claims of rent and moneys due to me, on book ac-
count or otherwise. I also give him all my musical instruments.

The King of France’s picture, set with four hundred and eight
diamonds, I give to my daughter, Sarah Bache, requesting, how-
ever, that she would not, form any of those diamonds into orna-
ments, either for herself or daughters, and thereby introduce or
countenance the expensive, vain and useless pastime of wearing
jewels in this country.

The philosophical instruments I have in Philadelphia, I give to
my ingenious friend, Francis Hopkinson.

I was born in Boston, New England, and owe my first instruc-
tions in literature to the free grammar schools established there;
885 WILLS OF FAMOUS PERSONS § 1251

I therefore give one hundred pounds sterling to my executors to
be by them paid over to the managers or directors of the free
schools in my native town of Boston.

a. oe:

I would have my body buried with as little expense or cere-
mony as may be.
Extracts from codicil.

It has been my opinion, that he who receives an estate from his
ancestors is under some kind of obligation to transmit the same
to their posterity; this obligation does not lie on me, who never
inherited a shilling from any ancestor or relation.

I wish to be buried by the side of my wife, if it may be, and
that a marble stone be made by Chambers, six feet long, four feet
wide, plain, with only a small molding around the upper edge,
with this inscription, .

Benjamin
Deborah
to be placed over us both.

My fine crabtree walking-stick, with gold head curiously
wrought in the form of the cap of liberty, I give to my friend,
and the friend of mankind, General Washington. If it were a
sceptre, he has merited it and would become it. It was a present
to me from that excellent woman, Madame de Forbach, the
Dowager Duchess of Deux Ponts, connected with some verses,
which should go with it.

I give my gold watch to my son-in-law, Richard Bache, and
also the gold watch-chain of the thirteen United States, which I
have not yet worn. My time-piece that stands in my library, I
give to my grandson, William Temple Franklin. I give him also
my Chinese gong. To my dear old friend, Mrs. Mary Hemson,
I give one of my silver tankards marked, for her use during life,
and after her decease, I give it to her daughter, Eliza. I give
to her son, William Hemson, who is my godson, my new quarto
Bible, Oxford edition, to be for his family Bible, and also the
botanic description of the plants in the Emperor’s garden at
Vienna, in folio, with colored cuts. And to her son, Thomas

Franklin
§ 1252 WILLS 886

Hemson, I give a set of Spectators, Tatlers, and Guardians, hand-
somely bound.

I give twenty guineas to my good friend and physician, Dr.
John Jones.

I request my friend, Mr. Duffield, to accept my French Way-
weiser, a piece of clockwork in brass, to be fixed on the wheel of
any carriage.

My picture drawn by Martin in 1767, I give to the Supreme
Executive Council of Pennsylvania, if they shall be pleased to
do me the honor of accepting it and placing it in their chamber.

I give to my executors, to be divided equally among those that
act, the sum of sixty pounds sterling as some compensation for
their trouble in the execution of my will.

§ 1252. Will of Horace Greeley.—I, Horace Greeley, be-
ing nearly sixty years old and in medium health, but admonished
by recent illness of the uncertainty of life, do make and publish
this, my last will and testament, superseding and revoking all of
earlier date which may be found or exist.

Item. I will and bequeath to my daughter, Ida Lillian Greeley,
requesting her to share the proceeds therefrom with her sister,
Gabrielle Miriam Greeley, all my books, copyrights and sums
which may be due and owing me from publishers, at the time of
my decease, naming especially my “American Conflict,” “Recol-
lections of a Busy Life,” “Political Economy,” and ‘What I
Know of Farming,” as works wherefrom some income may ac-
crue from copyrights after my decease.

Item. I will and bequeath to my two daughters aforesaid all
the real estate whereof I may die possessed or be entitled to,
except the farm on which my brother, Nathan Barnes Greeley,
lives, in Wayne Township, Erie County, Pennsylvania, directing
that my daughter, Ida Lillian aforesaid, be and hereby is author-
ized and empowered during the minority of her sister, Gabrielle
Miriam, to manage, let, improve, lease or sell the whole or any
portion of the same as she shall judge expedient and advanta-
geous to herself and her sister aforesaid, the same to be sub-
ject to the right of dower inhering in my wife, Mary Young
887 WILLS OF FAMOUS PERSONS § 1252

Greeley, unless and until she shall see fit to release the same to
my two daughters aforesaid.

Item. I bequeath to my brother, Nathan Barnes Greeley afore-
said, and his wife, Ruhanna, the full and uninterrupted use for
life of either of them of my farm lying in the Township of
Wayne, Erie County, Pennsylvania, aforesaid. And I further
bequeath to whichever of his sons the said Nathan Barnes
Greeley may designate, the reversion or remainder of one-half
of said farm, it being my understanding and purpose that said
son shall live with and take care of said Nathan Barnes and Ru-
hanna Greeley to the end of their several lives.

Item. I direct that if any share or shares in the Tribune As-
sociation shall remain to me at my decease one of them shall be
sold, under the rules of said association, to the highest bidder,
and the proceeds, without deduction or abatement, be paid over
as my bequest to the Children’s Aid Society, whereof New York
City is the focus of operations, to be invested or disbursed as its
proper authorities shall direct. If more than one share of stock
in the Tribune Association shall remain to me at my death, and
if my wife, Mary Young Greeley, shall survive me, I bequeath to
her one-half of such remaining shares of stock in lieu of all other
dower, except those reserved to her as aforesaid, and I hereby
renounce and disclaim in favor of my said wife all claim on my
part, or on that of my heirs, to the real estate once mine but now
wholly hers, near the village of Chappaqua, in the Township of
New Castle, Westchester County, New York, as also to the two
shares of Tribune stock now standing in her name, and which
were never mine but wholly purchased by her money, and I fur-
ther renounce and disclaim in her favor all right to the stock and
funds of the Northern Pacific Railroad, which I have paid for
with her money and which now stands in her name on the books
of the company, and I give and bequeath unto my said wife all
the animals, implements, machinery, crops, products and ma-
terials which may at the time of my death exist upon or pertain
to her farm and buildings in New Castle township aforesaid.

Item. I direct that whatever stock in the Tribune Association
may remain to me at the time of my death, after fulfilling and sat-
§ 1253 WILLS 888

isfying the foregoing bequests, be sold in accordance with the
rules of said association and that from the proceeds thereof and
from the proceeds of such portions of the debts due or owing to
me from all persons whatever as may at any time be collected,
there be paid the following bequests in their order, namely:

1. Two thousand dollars to my sister, Margaret Greeley Bush,
in case she survive me, and in case she should not but her daugh-
- ter, Evangeline Bush, shall survive me, then the said sum of two
thousand dollars shall be paid to her, my said sister’s daughter,
Evangeline Bush.

2. One thousand dollars each to my sister Arminda, wife of

Lovewell Greeley, and Esther, wife of John F. Cleveland, or to
their surviving children respectively, in case they or either of
them shall die before I do.
' 3. I give or bequeath all the residue or remainder of my prop-
erty of whatever name or nature, to my daughters, Ida Lillian
and Gabrielle Miriam Greeley, and to the survivor in case but one
of them shall survive me. _

I hereby appoint Samuel Sinclair, publisher Tribune; Charles
Storrs, merchant, now of 73 Worth street, New York city, and
Richard C. Manning, now residing in Clinton avenue, Brooklyn,
or any two of them who may survive me and accept the trusts,
executors of this, my last will and testament.

In witness whereof, I have hereunto set my hand and seal this
ninth day of January in the year of our Lord one thousand eight
hundred and seventy-one. Horack GREELEY.

$1253. Will of Hetty H. R. Green.—I, Hetty H. R.
Green, of Bellows Falls, state of Vermont, being of sound and
disposing mind and memory, do make and publish this, my last
will and testament, hereby revoking all former wills, codicils and
testamentary disposition by me at any time made.

Item 1. I direct that all my just debts, including the ex-
penses of my last illness, and funeral, and the expense of admin-
istration be paid as soon after my decease as may be convenient
for my executors.

Item 2. I give and bequeath to my beloved friend, Mrs. Her-
889 WILLS OF FAMOUS PERSONS § 1253

bert P. Bancroft, of Bellows Falls, state of Vermont, the sum of
five thousand ($5,000) dollars, as a token of my esteem, to be
free of all taxes.

Item 3. I give and bequeath to Amory A. Lawrence, No. 89
Franklin street, Boston, state of Massachusetts, former trustee
of the Sylvia Ann Howland estate, the sum of ten thousand
($10,000) dollars as a token of my esteem, to be free of all taxes.

Item 4. I give and bequeath to my beloved friend, Ruth Law-
rence, No. 69 Washington Place, city of New York, state of New
York, the sum of five thousand dollars ($5,000) as a tcken of my
esteem, to be free of all taxes.

Item 5. I give and bequeath to Mr. Matthew Astor Wilks,
my daughter’s husband, the sum of five thousand ($5,000) dol-
lars, to be free of all taxes, as an evidence of my appreciation
of his having executed an ante-nuptial relinquishment to any
claim which he might have to the property my daughter had or
might thereafter acquire.

Item 6. I give, devise, and bequeath unto my beloved daugh-
ter, Hetty Sylvia A. H. G. Wilks, that certain piece of real
estate containing three and one-half acres, more or less, with all
improvements thereon, situated in Englewood, New Jersey, at
the corner of Hudson avenue and Tenefly road, the same being
a portion of the estate of my deceased father, Edward Mott Rob-
inson. /

Item 7. I give, devise, and bequeath all the rest, residue and
remainder of the estate of my deceased father, Edward Mott
Robinson, to my beloved son, Edward Howland Robinson Green,
of Terrell, state of Texas, and to his heirs and assigns, forever ;
the same to be for the sole and separate use and benefit of my said
son, to the exclusion of any interest therein or control thereof by
any wife whom he has or may wed.

Item 6 and this item dispose of the entire estate of my de-
ceased father, Edward Mott Robinson, no part of which is in-
cluded in the trusts hereinafter created, because of the provi-
sions of my father’s will, which directs that the estate shall upon.
my death go to my children in such proportions as I might di-
rect by my last will and testament.
§ 1253 WILLS 890

Item 8. I give and bequeath unto my said beloved son, Ed-
ward H. R. Green, and my beloved daughter, Hetty Sylvia A.
H. G. Wilks, all of my jewelry, household furniture, portraits
and paintings, and other personal effects, to be divided equally
between them as they may agree with each other.

Item 9. I give and bequeath unto my said daughter, Hetty
Sylvia A. H. G. Wilks, and my son, Edward H. R. Green, of
Terrell, state of Texas, the following described bonds, mortgages
and securities, to wit: $1,000,000 Houston and Texas Cen-
tral Railroad general mortgage four per cent. bonds; $78,000
Main Line Houston and Texas Central Railroad first mortgage
five per cent. bonds; $160,000 International and Great Northern
Railroad first mortgage six per cent. bonds; $160,000 Interna-
tional and Great Northern Railroad second mortgage five per
cent. bonds; $26,400 International and Great Northern Railroad
third mortgage four per cent. bonds; $1,500,000 City of New
York gold exempts three and one-half per cent. assessment bonds
of November 1, 1914; $1,190,000 City of New York gold
exempts three and one-half per cent. corporate stock; $250,000
mortgage of Henry A. Budd on property No. 572 Fifth avenue,
New York city; or the re-investments of the principals thereof,
as trustees, to be had and holden by them and the survivor of
them in trust for a period of ten years from the date of my death,
for the following uses and purposes, to wit, that is to say: To
manage and control the same; to exercise all the powers neces-
sary to that end; to collect and receive the issues and profits
thereof; to invest and keep invested the same, with power to
call in and change the investments from time to time, such in-
vestments and re-investments to be made in such securities and
property and in such manner as to the trustees shall seem safe
and prudent; and to apply the net rents, issues, profits, interest
and income arising from the trust estate, by this item hereby
created, to the sole and separate use and benefit of my said
daughter, Hetty Sylvia A. H. G. Wilks, separate and apart from
any husband which my said daughter has or may wed, and free
from the debts, control or interference of any such husband, and
the same not to be subject to any previous disposition or incum-
oh

891 WILLS OF FAMOUS PERSONS § 1253

brance by way of anticipation; such income to be paid over to
her every three months as the same accrues.

Upon the termination of this trust, the capital of the said trust
estate shall be paid, conveyed, transferred and delivered to my
said daughter, Hetty Sylvia A. H. G. Wilks, if she be then living,
for her own use and benefit, separate and apart from any hus-
band ‘she has or may wed, and free from the debts, control or in-
terference of any such husband, and not subject to any previous
disposition or incumbrance by way of anticipation.

And if she be not then living, then to the issue she shall have
then surviving her, in such shares and proportions and in such
manner as my said daughter, Hetty Sylvia A. H. G. Wilks, shall
appoint by her last will and testament; and if she shall make no
such direction or appointment, then to such issue in equal shares,
per stirpes and not per capita.

In case my said daughter, Hetty Sylvia A. H. G. Wilks, shall
die before the expiration of the ten-year period for which this
trust is created, leaving no issue surviving her, then this trust
estate shall be merged into and controlled by the provisions re-
lating to the trust estate created in item 10 hereof.

This trust estate is hereby created for the use and benefit of
my said daughter, Hetty Sylvia A. H. G. Wilks, in lieu of leaving
her a larger interest in my father’s estate than as hereinbefore
provided. It being my purpose in naming the two trustees to
secure for my said daughter in the management of the said trust
estate the assistance and services of my son, Edward H. R. Green,
whom I request shall serve without compensation, in order that
my daughter may enjoy the entire net income of the said trust
estate.

Item 10. All the rest, residue and remainder of my estate,
real, personal and mixed, I give, devise, and bequeath unto my
son, Edward H. R. Green, of Terrell, state of Texas, and my
daughter, Hetty Sylvia A. H. G. Wilks, as trustees, to be had
and holden by them and the survivor of them for a period of ten
years from the date of my death, in trust, for the following uses
and purposes, to wit, that is to say:

(1) As to real estate; to rent and receive the rents and profits
-§ 1253 WILLS 892

thereof, with full power to lease and to sell and convey the same
or any portion thereof, and in case of such sale, to re-invest the
proceeds in the manner as is provided herein with relation to the
personal estate.

(2) As to the personal estate: to collect and receive the issues
and profits thereof; to invest and keep invested the same, with
power to call in and change the investments from time to time,
such investments and re-investments to be made in such securi-
ties and property and in such manner as to the said trustees shall
seem safe and prudent.

(3) To manage and control the said trust estate, and to exer-
cise all the powers necessary to that end.

(4) To apply the net rents, issues and profits and income
arising from the said trust estate to the sole and separate use
-and benefit of my said son, Edward H. R. Green, and my said
daughter, Hetty Sylvia A. H. G. Wilks, share and share alike,
separate and apart from any wife my said son has or may wed,
or any husband my said daughter has or may wed, and free from
any debts, control or interference of such wife or husband, and
the same not to be subject to any previous disposition or incum-
brance by way of anticipation.

(5) To distribute the net income every three months as it
may accrue.

(6) In case either my said son or daughter shall die during
the period for which this trust is created, leaving issue, then the
surviving trustee shall at the above stated periods, apply one-half
of the net income of the said trust estate to the use and benefit
of such issue in such manner and such proportion as may be di-
rected by the last will and testament of my said deceased son or
daughter, or as the surviving trustee shall deem to the best in-
terest of the said issue, in case said son or daughter should die
intestate. :

(7) Incase my said son or daughter shall die during the period
for which this trust is created, leaving no issue, then the entire
net income of the said trust estate shall go and be enjoyed by the
survivor of them.

(8) Upon the termination of this trust, one-half of the capital
893 WILLS OF FAMOUS PERSONS § 1253

of the said trust estate, real, personal, and mixed, shall vest in
and be paid, conveyed, transferred and delivered to my said son,
Edward H. R. Green, if he be then living, for his own use and
benefit, separate and apart from any wife he has or may wed,
and free from the debts, control, or interference of any such
wife, and not subject to any previous disposition or incumbrance
by way of anticipation; and if he be not living, then to the issue
he shall have then surviving him, in such shares and proportions
and in such manner as my said son, Edward H. R. Green, shall
appoint and direct by his last will and testament; and if he shall
make no such direction or appointment, then to such issue in
equal shares, per stirpes and not per capita.

In case my said son, Edward H. R. Green, shall not be living
at the termination of this trust, and shall have no issue then sur-
viving him, then the one-half of the capital of the said trust
estate herein provided for him shall vest in, be paid, conveyed,
transferred and delivered over to my said daughter, Hetty Sylvia
A. H. G. Wilks, for her own use and benefit, separate and apart
from any husband she has or may wed, and free from the debts,
control or interference of any such husband, and not subject
to any previous disposition or incumbrance by way of anticipa-
tion. ,

(9) Upon the termination of this trust the remaining one-
half of the capital of the said trust estate, real, personal and
mixed, shall vest in and be paid, conveyed, transferred and de-
livered to my said daughter, Hetty Sylvia A. H. G. Wilks, if she
be then living, for her cwn use and benefit, separate and apart
from any husband she has or may wed, and free from the debts,
control or interference of any such husband, and not subject to
any previous disposition or incumbrance by way of anticipation;
and if she be not living, then to the issue she shall have then
surviving her, in such shares and in such proportions and in such
manner as my said daughter, Hetty Sylvia A. H. G. Wilks, shall
appoint and direct by her last will and testament ; and if she shall
make no such direction or appointment, then to such issue in.
equal shares, per stirpes and not per capita.

In case my said daughter, Hetty Sylvia A. H. G. Wilks, shall
§ 1253 * WILLS 894

not be living at the termination of this trust, and shall have no
issue then surviving her, then the one-half of the capital of the
said trust estate herein provided for her shall vest in, be paid,
conveyed, transferred and delivered over to my said son, Ed-
ward H. R. Green, for his own use and benefit, separate and apart
from any wife he has or may wed, and free from the debts, con-
trol or interference of any such wife, and not subject to any
previous disposition or incumbrance by way of anticipation.

(10) In case both my said son, Edward H. R. Green, and my
said daughter, Hetty Sylvia A. H. G. Wilks, shall die before the
expiration of the ten-year period for which this trust estate is
created, then and in that event the trust shall, at the death of the
survivor of them, cease and terminate; and if in such event
neither my said son nor my said daughter shall leave issue surviv-
ing them, the entire trust estate shall descend and vest in such
person or persons as the survivor of them, my said son and my
said daughter, may appoint and direct in the last will and testa-
ment of such survivor; and if, in such case, said survivor shall
die intestate, then the said trust estate shall descend to and vest
in the heirs at law of the said survivor of them, my said son and
my said daughter.

Item 11. The trustees herein named, or the survivor of them
shall have the power to move and transfer the administration and
management of the trust estates hereby created, or any portion
thereof, to any state, territory or jurisdiction, as in their judg-
ment may be to the best interest of the said estates.

Item 12. Neither of the trustees herein named shall incur any
liability by accepting or acting as trustee, except by his or her
own wilful act or default

Item ‘13. In the event either of the trustees herein named
shall refuse or be unable to accept or act, then the other trustee
shall exercise all the powers herein vested in both trustees. All
of the powers herein conferred upon the two trustees herein
named may at any time be exercised by either one of them acting
alone, if thereunto authorized in writing by the other trustee.

Item 14. My executors are hereby directed to pay out of my
estate all of the expenses and costs of every nature and descrip-
895 WILLS OF FAMOUS PERSONS § 1253

tion incident to carrying out the directions contained in this, my
last will and testament, and incident to the transfer, conveyance
and payment to the trustees and beneficiaries hereinbefore named
the gifts, bequests, legacies and devises hereinbefore provided
for, it being my intention that the said trustees and beneficiaries
shall receive their respective gifts, legacies, bequests and devises
free of all cost and expense.

Item 15. I direct that the trustees named in this, my last will
and testament, shall not be required to file an inventory or ap-
praisement of either one of the trust estates herein created, or
any portion thereof, in any court; nor shall they, or either of
them, be required to give bond or other security as such trustees ;
nor shall they or either of them be required to account in or to
or be subject: to the jurisdiction of the probate court.

Item 16. I hereby appoint my said son, Edward Howland
Robinson Green, and my said daughter, Hetty Sylvia Ann How-
land Green Wilks, as executor and executrix of this, my last will
and testament, and direct that in the case of the death or in the
inability, failure or refusal of either my said son or daughter to
qualify or act, then and in that event the other shall become the
sole executor or executrix of this, my last will and testament ;
and I hereby request that neither my son nor my daughter shall
be required to give any bond or other surety as such executor or
executrix.

In witness whereof, I have hereunto subscribed my name and
affixed my seal the twenty-eighth day of March, in the year of
our Lord one thousand nine hundred and eleven.

Herty H. R. Green. [Seal.]

Witnesses: Hoffman Miller, James Smith, Michael Smith.

Signed, sealed, published, pronounced and declared by the
above-named Hetty H. R. Green, testatrix, as and for her last
will and testament, in the presence of us, the undersigned, who,
at her request, in her presence, and in the presence of each other,
subscribed our names at the end of the will as witnesses, and do
hereunto subscribe our names in her presence, and in the pres-
ence of each other, as such witnesses.

Hoffman Miller, residing at Tuxedo, New York; James Smith,
§ 1254 WILLS 896

residing at 638 Hudson street, Hoboken, N. J.; Michael Smith,
residing at 632 Hudson street, Hoboken, N. J.

§ 1254. Will of Edward H. Harriman.—I, Edward H.
Harriman, of Arden, in the state of New York, do make, pub-
lish and declare this as and for my last will and testament, that is
to say: :

I give, devise, and bequeath all of my property, real and per-
sonal, of every kind and nature, to my wife, Mary W. Harriman,
to be hers absolutely and forever, and I do hereby nominate and
appoint the said Mary W. Harriman to be executrix in this, my
will.

In witness whereof, I have hereunto set my hand and seal this
8th day of June in the year 1903. Epwarp H. Harriman.

§ 1255. Will of Sam Houston.—In the name of God, the
Father, the Son and Holy Spirit, I, Sam Houston, of the county
of Walker and state of Texas, being fully aware of the uncer-
tainty of life, and the certainty of death, do ordain and declare
this, my last will and testament. /

First. I will that all my just debts be paid out of my personal
effects, as I think them sufficient without disposing of any of the
family servants.

Second. I bequeath my entire remaining estate to my beloved
wife, Margaret, and our children, and I desire that they may re-
main with her so long as she may remain in widowhood, and
should she at any time marry, I desire that my daughters should
be subject to her control, so long as their minority lasts.

Third. My will is that my sons should receive solid and useful
education, and that no portion of their time may be devoted to
the study of abstract science. I greatly desire that they may pos-
sess a thorough knowledge of the English language, with a good
knowledge of the Latin language. I also request that they be in-
structed in the knowledge of the Holy Scripture, and next: to
these that they may be rendered thorough in a knowledge of
geography and history. I wish my sons early taught an utter
contempt for novels and light reading. In all that pertains to my
sons I wish particular regard paid to their morals, as well as to
897 WILLS OF FAMOUS PERSONS § 1255

the character and morals of those with whom they may be asso-
ciated or instructed.

Fourth, I leave to my wife, as executrix, and to the following
gentlemen, as my executors, Thomas Gibbs, Thomas Carothers,
J. Carroll Smith, and Anthony M. Branch, my much beloved
friends, in whom I place my entire confidence, to make such dis-
position of my personal and real estate as may seem to them
best for the necessities and interests and welfare of my family.

Fifth. To my dearly beloved wife, Margaret, I confide the
rearing, education and moral training of our sons and daughters.

Sixth. To my eldest son, Sam Houston, Jr., I bequeath my
sword, worn in the battle of San Jacinto, never to be drawn
only in defense of the constitution, the laws and liberties of his
country. If any attempt should ever be made to assail one of
these, I wish it to be used in its vindication.

Seventh. It is my will that my library should be left at the
disposition of my dear wife.

Eighth. To my dearly beloved wife I bequeath my watch,
and all my jewelry, subject to her disposition.

Ninth. I hereby appoint my dearly beloved wife, Margaret,
testamentary guardian of my children, their persons and estates
during minority. But should a wise Providence, through its in-
scrutable decrees, see fit to deprive our offspring of both par-
ents and make them orphans indeed, it is hereby delegated to my
executors, who are hereby confirmed, J. Carroll Smith, Thomas
Carothers, Thomas Gibbs, and Anthony M. Branch, to make
such disposition in regard to their welfare as they may think best
calculated to carry out the designs as expressed in this, my last
will and testament. :

Tenth. And I direct and enjoin my executrix and executors
that, after the probate and registry of this, my last will, and re-
turn of inventory of my estate, the county or other court of pro-
bate have no further control over my executors or testamentary
guardian or of my estate.

Done at Huntsville the second day of April, 1863.
Sam Houston.

57—Tuomp. WILLS
§ 1256 WILLS 898

§ 1256. Will of Thomas Jefferson.—I, Thomas Jefferson,
of Monticello, in Albemarle, being of sound mind and in my
ordinary state of health, make my last will and testament in
manner and form as follows:

I give to my grandson, Francis Eppes, son of my dear de-
ceased daughter, Mary Eppes, in fee simple, all that part of my
lands at Poplar Forest lying west of the following lines, to wit:
Beginning at Radford’s upper corner near the double branches
of Bear Creek and the public road, and running thence in a
straight line to the fork of my private road, near the barn; thence
along that private road (as it was changed in 1817), to its cross-
ing of the main branch of North Tomahawk Creek; and from
that crossing, in a direct line over the main ridge which divides
the North and South Tomahawk, to the South Tomahawk, at
the confluence of two branches where the old road to the Water-
lick crossed it, and from that confluence up the northermost
branch (which separate M’Daniels’ and Perry’s fields), to its
source; and thence by the shortest line to my western boundary.
And having, in a former correspondence with my deceased son-
in-law, John W. Eppes, contemplated laying off for him, with
remainder to my grandson, Francis, a certain portion in the
southern part of my lands in Bedford and Campbell, which I
afterward found to be generally more indifferent than I had
supposed, and therefore determined to change its location for the
better; now to remove all doubt, if any could arise on a purpose
merely voluntary and unexecuted, I hereby declare that what I
have herein given to my said grandson, Francis, is instead of,
and not additional to, what I had formerly contemplated. I
subject all my other property to the payment of my debts in the
first place. Considering the insolvent state of the affairs of my
friend and son-in-law, Thomas Mann Randolph, and that what
will remain of my property will be the only resource against the
want in which his family would otherwise be left, it must be his.
wish, as it is my duty, to guard that resource against all liability
for his debts, engagements or purposes whatsoever, and to pre-
clude the rights, powers, and authorities over it, which might re-
sult to him by operation of law, and which might, independently
899 WILLS OF FAMOUS PERSONS § 1256

of his will, bring it within the power of his creditors, I do hereby
devise and bequeath all the residue of my property, real and per-
sonal, in possession or in action, whether held in my own right,
or in that of my dear deceased wife, according to the powers
vested in me by deed of settlement for that purpose, to my grand-
son, Thomas J. Randolph, and my friends, Nicholas P. Trist and
Alexander Garrett, and their heirs, during the life of my said
son-in-law, Thomas M. Randolph, to be held and administered
by them, in trust, for the sole and separate use and behoof of my
dear daughter, Martha Randolph, and her heirs; and aware of
the nice and difficult distinction of the law in these cases, I will
further explain by saying, that I understand and intend the ef-
fect of these limitations to be, that the legal estate and actual,
occupation shall be vested in my said trustees, and held by them
in base fee, determinable on the death of my said son-in-law, and
the remainder during the same time to be vested in my said,
daughter and her heirs and of course disposable by her last will,’
and that at the death of my said son-in-law the particular estate
of the trustees shall be determined, and the remainder in legal
estate, possession, and use, become vested in my said daughter and
her heirs, in absolute property forever. In consequence of the
variety and indescribableness of the articles of property within the
house at Monticello, and the difficulty of inventorying and ap-
praising them separately and specifically, and its inutility, I dis-
pense with having them inventoried and appraised; and it is
my will that my executors be not held to give any security for the
administration of my estate. I appoint my grandson, Thomas
Jefferson Randolph, my sole executor during his life, and after
his death, I constitute executors my friends, Nicholas P. Trist
and Alexander Garrett, joining to them my daughter, Martha
Randolph, after the death of my said son-in-law, Thomas M.
Randolph. Lastly, I revoke all former wills by me heretofore
made; and in witness that this is my will, 1 have written the
whole with my own hand on two pages,.and have subscribed my
name to each of them this sixteenth day of March, one thousand
eight hundred and twenty-six. THOMAS JEFFERSON.

I, Thomas Jefferson, of Monticello, in Albemarle, make and

‘
§ 1256 WILLS 900

add the following codicil to my will, controlling the same so far
as its provisions go:

I recommend to my daughter, Martha Randolph, the main-
tenance and care of my well-beloved sister, Anne Scott, and trust
confidently that from affection to her, as well as for my sake, she
will never let her want a comfort. I have made no specific provi-
sion for the comfortable maintenance of my son-in-law, Thomas
M. Randolph, because of the difficulty and uncertainty of devis-
ing terms which shall vest any beneficial interest in him, which
the law will not transfer to the benefit of his creditors, to the
destitution of my daughter and her family, and disablement of
her to supply him: whereas, property placed under the exclusive
control of my daughter and her independent will, as if she were
a feme sole, considering the relation in which she stands both
to him and his children, will be a certain resource against want
for all.

I give to my friend, James Madison, of Montpelier, my gold-
mounted walking staff of animal horn, as a token of the cordial
and affectionate friendship which for nearly now an half century,
has united us in the same principles and pursuits of what we have
deemed for the greatest good of our country.

I give to the University of Virginia my library, except such
particular books only, and of the same edition, as it may already
possess, when this legacy shall take effect; the rest of my said
library, remaining after those given to the university shall have
been taken out, I give to my two grandsons-in-law, Nicholas P.
Trist and Joseph Coolidge. To my grandson, Thomas Jefferson
Randolph, I give my silver watch in preference to the gold one,
because of its superior excellence. My papers of business going
of course to him, as my executor, all others of a literary or other
character I give to him as of his own property.

I give a gold watch to each of my grandchildren, who shall
not have already received one from me, to be purchased and de-
livered by my executors to my grandsons, at the age of twenty-
one, and granddaughters at that of sixteen.

T give to my good, affectionate, and faithful servant Burwell,
his freedom, and the sum of three hundred dollars, to buy neces-
901 WILLS OF FAMOUS PERSONS § 1257

saries to commence his trade of glazier, or to use otherwise, as
he pleases,

I give also to my good servants, John Hemings and Joe Fos-
set, their freedom at the end of one year after my death; and to
each of them respectively, all the tools of their respective shops
or callings ; and it is my will that a comfortable log-house be built
for each of the three servants so emancipated, on some part of
my lands convenient to them with respect to the residence of
their wives and to Charlottesville and the university, where they
will be mostly employed, and reasonably convenient also to the
interests of the proprietor of the lands, of which houses I give the
use of one, with a curtilage of an acre to each, during his life or
personal occupation thereof.

I give also to John Hemings the service of his two apprentices,
Madison and Eston Hemings, until their respective ages of twen-
ty-one years, at which period, respectively, I give them their free-
dom; and I humbly and earnestly request of the legislature of
Virginia a confirmation of the bequest of freedom to these serv-
ants, with permission to remain in this state, where their fam-
ilies and connections are, as an additional instance of the favor,
of which I have received so many other manifestations in the
course of my life, and for which I now give them my last solemn
and dutiful thanks.

In testimony that this is a codicil to my will of yesterday’s
date, and that it is to modify so far the provisions of that will,
I have written it all with my own hand in two pages, to each of
which I subscribe my name, this seventeenth day of March, one

thousand eight hundred and twenty-six.
THOMAS JEFFERSON.

§ 1257. Will of Robert E. Lee.—I, Robert E. Lee of the
‘United States Army, do make, ordain, and declare this instru-
ment to be my last will and testament, revoking all others.

1. All my debts, whatever they may be, and’of which there
are but few, are to be punctually and speedily paid.

2. To my dearly beloved wife, Mary Custis Lee, I give and
bequeath the use, profit and benefit of my whole estate, real and
personal for the term of her natural life, in full confidence that
§ 1257 WILLS o02

she will use it to the best advantage in the education and care
of my children.

3. Upon the decease of my wife it is my will and desire that
my estate be divided among my children, in such proportions to
each, as their situations and necessities in life may require; and
as may be designated by her; and I particularly request that my
second daughter, Anne Carter, who from an accident she has
received, in one of her eyes, may be more in want of aid than the
rest, may if necessary, be particularly provided for.

Lastly, I constitute and appoint my dearly beloved wife, Mary
Custis Lee, and my eldest son, George Washington Custis Lee
(when he shall have arrived at the age of twenty-one years)
executrix and executor of this, my last will and testament, in
the construction of which I hope and trust no dispute will arise.

In witness of which I have set my hand and seal this thirty-
first day of August in the year one thousand eight hundred and
forty-six. R. E. Lee.

Schedule of property: One hundred shares of the stock of the
Bank of Virginia, Richmond, $10,000.00.

Thirty-nine shares of the stock of the Valley of Virginia, Win-
chester, $3,900.00.

Six thousand one hundred dollars of Jas. R. & Kanawha Com-
pany bonds, $6,100.00.

Two thousand dollars Virginia six per cent. state bonds,
$2,000.00.

Two thousand dollars Phil., Wil. & Baltimore R. R. six per
cent. loan, $2,000.00.

Two thousand dollars bonds of Kentucky, six per cent.,
$2,000.00.

Six per cent. bonds of the state of Ohio, $5,000.00.

Bond of John Lloyd and wife, $3,000.00.

Bonds of Workner & Rice and of Louis Engel, St. Louis,
Mo., $4,500.00. .

One share of National Theater, Washington city, $250.00.

Total, $38,750.00.

Nancy and her children at the White House, New Kent, all
of whom I wish liberated, so soon as it can be done to their ad-
003 WILLS OF FAMOUS PERSONS § 1258

vantage and that of others. An undivided third part of the tract
of land in Floyd, Va., devised to me by my mother, of which I
am negotiating a sale with M. N. Burwell for $2,500.00. My
share of property in Hardy, Va., belonging to the estate of my
father. My share of a claim of the property leased to the gov-
ernment by my father at Harpers Ferry and believed to belong to
his estate. My share or one-third of two hundred acres of land
in Fairfax county, Va. R. E. Ler,

§ 1258. Will of Cecil John Rhodes.—This will being
quite lengthy, only extracts therefrom are given.

I, The Right Honorable Cecil John Rhodes, of Cape Town in
the Colony of the Cape of Good Hope, hereby revoke all testa-
mentary dispositions heretofore made by me and declare this to
be my last will, which I make this first day of July, 1899.

1, Iam a natural-born British subject and I now declare that
I have adopted and acquired and hereby adopt and acquire and
intend to retain Rhodesia as my domicil.

2. I appoint (naming seven persons) to be the executors and
trustees of my will, and they and the survivors of them or other
the trustees for the time being of my will are hereinafter called
“My Trustees.” ‘

3. I admire the grandeur and loneliness of the Matoppos in
Rhodesia and therefore I desire to be buried in the Matoppos on
the hill which I used to visit and which I called the “View of the
World,” in a square to be cut in the rock on the top of the hill
covered with a plain brass plate, these words thereon: ‘Here lie
the remains of Cecil John Rhodes,” and accordingly I direct my
executors, at the expense of my estate, to take steps and do all
things necessary or proper to give effect to this my desire, and
afterward to keep my grave in order at the expense of the Ma-
toppos and Bulawayo fund, hereinafter mentioned.

36. My trustees shall invest the scholarship fund and the
other funds hereinbefore established, or any part thereof, re-
spectively, in such investments in any part of the world, as they
shall in their uncontrolled discretion think fit and that without
regard to any rules of equity governing investments by trustees
§ 1258 WILLS 904"

and without any responsibility or liability should they commit
any breach of any such rule, with power to vary any such invest-
ments for others of a like nature.

37. Investments to bearer held as an investment, may be de-
posited by my trustees for safe custody in their names with any
banker or banking company, or with any company whose business
it is to take charge of investments of that nature, and my trus-
tees shall not be responsible for any loss incurred in consequence
of such deposit.

40. I give the residue of my real and personal estate unto such
of them the said (persons who are named as executors and trus-
tees) as shall be living at my death, absolutely, and, if more than
one, as joint tenants.

41. My trustees in the administration of the trust business
may, instead of acting personally, employ and pay a secretary or
agent to transact all business and to do all acts required to be
done in the trust, including the receipt and payment of money.

42. My intention is that there shall be always at least three
trustees of my will so far as it relates to the scholarship trusts,
and therefore I direct that whenever there shall be less than three
trustees, a new trustee or new trustees shall be forthwith ap-

pointed.
In witness whereof, I have hereunto set my hand the day and
year first above written. C. J. Ropes.

(Subscribed by three witnesses. )
Codicil.

1. I renew the statements contained in my said will relating
to my domicil.

2. I appoint the trustees or trustee for the time being of my
said will (hereinafter called “my trustees or trustee”) to be the
trustees or trustee for all the purposes of the Settled Land Acts
1882 to 1890, and also all the purposes of section 42, of the Con-
veyancing and Law of Property Act 1881.

3. I devise free and discharged as hereinafter provided of
all incumbrances created by me all my messuages, lands and
hereditaments [described and referred to as “The Dalham Hall
905 WILLS OF FAMOUS PERSONS § 1258

Estate” ] to the uses and subject to the powers and provisions
hereinafter contained, that is to say:

4. To the use of my brother, F. R., for his life without im-
peachment of waste with remainder.

5. To the use of his first and other sons successively, accord-
ing to seniority in tail male with remainder.

6. To the use of my brother, E. F. R., for his life without im-
peachment of waste with remainder.

7. To the use of his first and other sons successively, according
to seniority in tail male with remainder.

8. To the use of the devisees of my general residuary estate.

9. If any person hereby made tenant in tail male of the Dal-
ham Hall Estate shall be living at, or be born in due time after
my death, then I revoke the estate in tail male hereby limited to
any and every such person, and instead of and by way of sub-
stitution for the estate in tail male hereby revoked of any person,
I devise (freed and discharged as aforesaid) the Dalham Hall
Estate (but subject to and in remainder after the estates pre-
ceding such estate in tail male). To the use of the same person
for life without impeachment of waste, with remainder. To the
use of his first and other sons successively, according to seniority
in tail male, with the like remainders over as are hereinbefore
limited after such revoked estate in tail male.

10. Whereas I feel that it is the essence of a proper life that
every man should, during some substantial period thereof, have
some definite occupation, and I object to an expectant heir de-
veloping into what I call a “loafer.” And whereas the rental of
the Dalham Hall Estate is not more than sufficient for the main-
tenance of the estate, and my experience is that one of the things
making for the strength of England is the ownership of country
estates which could maintain the dignity and comfort of the head
of the family, but that this position has been absolutely ruined
by the practise of creating charges upon the estates either for
younger children, or for the payment of debts whereby the estates
become insufficient to maintain the head of the family in dig-
nity and comfort. And whereas I humbly believe that one of the
secret’s of England’s strength has been the existence of a class
§ 1258 WILLS 906

termed “the country landlords,” who devote their efforts to the
maintenance of those on their own property. And whereas this
is my own experience. Now, therefore, I direct that if any per-
son who, under the limitations hereinbefore contained, shall be-
come entitled as tenant for life or as tenant in tail male by pur-
chase to the possession or to the receipt of the rents and profits
of the Dalham Hall Estate, shall attempt to assign, charge or
incumber his interest in the Dalham Hall Estate, or any part
thereof, or shall do or permit any act or thing, or any event shall
happen by or in consequence of which he would cease to be en-
titled to such interest, if the same were given to him absolutely,
or if any such person as aforesaid (excepting in this case my said
brothers, F. R. and E. F. R.) (1) shall not, when he shall be-
come so entitled as aforesaid, have been for at least ten consecu-
tive years engaged in some profession or business; or (2) if not
then engaged in some profession or business, and (such profes-
sion or business not being that of the army) not then also a mem-
ber of some militia or volunteer corps, shall not, within one year
after becoming so entitled as aforesaid or (being an infant)
within one year after attaining the age of twenty-one years,
which ever shall last happen, unless in any case prevented by
death, becomes engaged in some profession or business, and
(such profession or business not being that of the army) also be-
comes a member of some militia or volunteer corps; or (3) shall
discontinue to be engaged in any profession or business before he
shall have been engaged for ten consecutive years in some pro-
fession or business, then and in every such case and forthwith,
if such person shall be tenant for life then his estate for life
shall absolutely determine, and if tenant in tail male, then his
estate in tail male shall absolutely determine and the Dalham Hall
Estate shall, but subject to estates, if any prior to the estate of
such person, immediately go to the person next in remainder un-
der the limitations hereinbefore contained, in the same manner
as if in the case of a person whose estate for life is so made to
determine that person were dead, or in the case of a person whose
estate in tail male is so made to determine were dead, and there
were a general failure of issue of that person inheritable to the
G07 _ WILLS OF FAMOUS PERSONS § 1258

estate which is so made to determine. Provided, that the deter-
mination of an estate for life shall not prejudice or effect any
contingent remainders expectant thereon, and that after such de-
termination the Dalham Hall Estate shall, but subject to estates
if any prior as aforesaid, remain to the use of the trustee ap-
pointed by my said will, and the codicil thereto, dated the 11th
day of October, 1901, during the residue of the life of the per-
son whose estate for life so determines upon trust during the
residue of the life of that person to pay the rents and profits of
the Dalham Hall Estate to, or permit the same to be received,
by the person or persons for the time being entitled under the
limitations hereinbefore contained, to the first vested estate in
remainder expectant on the death of that person.

11. I give all arrears of rents and profits due me at my death,
and all shares and proportions of rents and profits not actually
due, but accruing due at my death and payable to my estate after
my death from the Dalham Hall Estate, but subject to payment
of all outgoings properly chargeable against the same, and not
discharged in my lifetime, and also all my wines, liquors and
consumable stores at my death in or about Dalham Hall, and all
my carriges, horses, harness and stable furniture and effects, and
garden and farming, live and dead stock and effects which at my
death shall be in or about Dalham Hall, or the stables thereof, or
in or about any other part of the Dalham Hall Estate, to my
brother F. R., or other the person who at my death shall become
entitled to the possession or to the receipt of the rents bans profits
of the Dalham Hall Estate.

12. I give all my plate, linen, china, glass, books, pictures,
prints, furniture and articles of household use or ornament which ©
at my death shall be in or about Dalham Hall (hereinafter re-
ferred to as “heirlooms’’) unto the trustees or trustee shall allow
the same to be used and enjoyed so far as the law permits by the
person or persons who, under the limitations hereinbefore con-
tained, is or are for the time being in the actual possession or in
the receipt of the rents and profits of the Dalham Hall Estate, but
so that the heirlooms shall not vest absolutely in any person being
tenant in tail male by purchase who does not attain the age of
§ 1258 WILLS 908

twenty-one years but on the death of such person under the age
of twenty-one years shall go and devolve in the same manner as if
they had been freehold hereditaments of inheritance and had
been included in the devise in settlement hereinbefore contained.
And I direct that an inventory of the heirlooms except such of
them as from their trifling value or perishable nature or from
any other cause it may be considered inexpedient to include in an
inventory as to which I give full discretion to my trustees or
trustee shall be taken in duplicate as soon as convenient after my
death and each copy shall be signed by the person entitled to the
use of the heirlooms therein specified and by my trustees or
trustee and one copy shall be delivered to the person entitled to
the possession of the heirlooms therein specified, who shall sign a
receipt for the same and the other copy shall be kept by my trus-
tees or trustee. And I empower my trustees or trustee, from
time to time and until the heirlooms shall become absolutely
vested, to inspect the same and to provide for the custody, pres-
ervation or restoration and repair and insurance thereof (so far
as the same are capable of insurance) at the expense of the usu-
fructuary, but my trustees or trustee shall not incur any liability
by neglect or omission so to do. And I declare that the heirlooms
or any of them may, from time to time with consent of my trus-
tees, be exchanged, or the form or fashion thereof altered, or
other articles substituted at the expense of the usufructuary for
the time being, provided the intrinsic value thereof be not dimin-
ished and thereupon the inventories shall be altered accordingly.
And I declare that when a receipt as hereinbefore provided shall
have been signed by the person entitled to the use of the heir-
looms my trustees or trustee shall not be liable in any way for
any loss, damage or deception or for any omission to insure or
any other omission or any unauthorized dealing or disposition
therewith. And that my trustees or trustee may with the consent
of any usufructuary, or if there be no such person of full age,
then at their or his discretion, let the use and enjoyment of the
heirlooms or any of them together with Dalham Hall under a
lease capable of being made thereof provided that the tenant
covenant or agree with my trustees or trustee to keep the same
909 WILLS OF FAMOUS PERSONS § 1259

during his tenancy in repair and insured against loss or damage
by fire so far as they are capable of being so insured, and during
any such tenancy my trustees or trustee shall not be liable for
any loss, damage or depreciation in respect of the heirloom de-
livered to the tenant.

13. I direct that within two years after my death my trustees
or trustee shall by means of money forming part of or raised by
sale or mortgage of my South African property situate out of the
United Kingdom, pay off and discharge any incumbrances on the
Dalham Hall Estate or any part thereof created by me and ex-
isting at my death, and procure the incumbered property to be
freed and discharged from such incumbrances and in the mean-
time shall out of the like moneys pay the interest payable in re-
spect of such incumbrances.

14. Whereas I am not satisfied that the fortune of my said
brother F. R., is sufficient to enable him to keep up the Dalham
Hall Estate, therefore I give to him out of the income of my
South African property situate out of the United Kingdom an
annuity of during his life but only so long as he shall be
entitled to the actual possession or to the receipt of the rents and
profits of the Dalham Hall Estate under the limitations herein-
before contained.

15. If at my death the aforesaid purchase from the said Sir
R. A. shall not have been completed, then I direct my trustees or
trustee at the expense of my South African property situated out
of the United Kingdom to pay the purchase-money for and in
all respects to complete such purchase, and I give them or him
all sufficient powers and authorities to enable them or him to do
so, including power to raise money for such completion by the
mortgage of the said purchased estate, such mortgage being for
the purpose of clause 13 hereof, considered an incumbrance cre-
ated by me existing at my death, and I direct that the purchased
estate shall be conveyed to the trustees named in my said will to
uses necessary or proper to give effect to this present Codicil of
the 11th day of October, 1901.

§ 1259. Will of Russell Sage—I, Russell Sage, of the
city and state of New York, do hereby make, publish and declare

 
§ 1259 WILLS 910

this my last will and testament, in manner and form following:

First. I direct that all my just debts and funeral expenses be
paid as soon after my decease as conveniently can be done.

Second. I give and bequeath to my sister, Fanny Chapin,

wife of Samuel Chapin, of Oneida, New York, should she sur-
vive me, the sum of ten thousand ($10,000) dollars.
_ Third. I give and bequeath to each and every of my nephews
and nieces of my own blood me surviving, the sum of twenty-
five thousand ($25,000) dollars; and in the event that any of
such nephews or nieces shall have died before me, leaving law-
ful issue him or her surviving, then I give and bequeath a like
sum of twenty-five thousand ($25,000) dollars to the surviving
lawful issue of each nephew or niece so dying before me, the
same to be distributed among such issue share and share alike,
per stirpes and not per capita.

Fourth. All the rest, residue, and remainder of my estate,
real, personal and mixed, wheresoever situate, of which I may
die seised or possessed, or to which I may be entitled at the time
of my decease, I give, devise and bequeath to my wife, Margaret
Olivia Sage, to have and to hold the same to her, absolutely and
forever. _

Fifth. This provision for my wife is to be in lieu of all right
of dower in my estate.

Sixth. I authorize and empower my executors hereinafter
named, and the survivors and survivor of them, to sell and dis-
pose of all or any of the real estate of which I shall die seised
or possessed, at public or private sale, at such times and on such
terms and conditions as they, the survivors or survivor of them
shall deem meet or proper, and to execute, acknowledge and de-
liver all proper writings, deeds of conveyance and transfers
therefor.

Seventh. Should any of the gifts and bequests made by me in
the second and third paragraphs of this my will lapse or fail for
any reason, I direct that the bequests so lapsing or failing shall go
to and form part of my residuary estate, and be disposed of un-
der and in accordance with the provisions of the fourth para-
graph of this my will.
911 WILLS OF FAMOUS PERSONS § 1259

Eighth. I nominate, constitute and appoint my wife, Margaret
Olivia Sage; Dr. John P. Munn, of the city of New York; Al-
mon Goodwin of said city, and Charles W. Osborne, long my
confidential and trusted assistant, the survivors and survivor of
them, executrix and executors of this my last will and testament.

In the event of the death, refusal or inability to act of said
Charles W. Osborne, I hereby nominate and appoint Edward C.
Osborne, also for some years past in my employment, as executor
in his place and stead. I further direct that none of the persons
above named as executors shall be required to give any bond or
security for the proper discharge of their duties.

Ninth. I hereby authorize and direct my said executors to
rent a suitable office for the transaction of the business of my es-
tate, and to employ and pay out of the funds of my estate all the
clerks and bookkeepers that may be necessary for the proper care
and management thereof.

Tenth. I hereby revoke all former or other wills and testa-
mentary dispositions by me at any time heretofore made.

Eleventh. Should any of the beneficiaries under this my will,
other than my said wife, object to the probate thereof, or in any
wise directly or indirectly, contest or aid in contesting the same,
or any of the provisions thereof, or the distribution of my estate
thereunder, then and in that event I annul any bequest herein
made to such beneficiary, and it is my will that such beneficiary
shall be absolutely barred and cut off from any share in my estate.

In witness whereof I have hereunto subscribed my name
and affixed my seal at No. 2 Wall Street, New York City, Bor-
ough of Manhattan, this eleventh day of February, 1901, in the
presence of Edward Townsend and Richard W. Freedman,
whom I have requested to become attesting witnesses hereto.

RUSSELL SAGE. [Seal.]

The foregoing instrument was subscribed, sealed, published
and declared by Russell Sage as and for his last will and testa-
ment, in our presence and in the presence of each of us, and we, at
the same time, at his request, in his presence and in the presence
§ 1260 WILLS 912

cf each other, hereunto subscribe our names and residetices as
attesting witnesses this 11th day of February, 1901.
Epwarp TOWNSEND, 130 West 121st St., New York.
R. W. FreepMan, 32 West 123rd St,, N. Y. City.

§ 1260. Will of Jane Lathrop Stanford.—Extract from
will of Jane Lathrop Stanford. Item XXII. All the rest, resi-
due and remainder of my property and estate, of every kind and
nature and wheresoever situated, not hereinbefore disposed of,
I give, devise and bequeath to the Board of Trustees of the Le-
land Stanford Junior University as founded and endowed by my
husband and myself by our joint grant of November eleventh,
1885, * * * to have and to hold to the said trustees and to
their successors forever as an integral part of the endowment of
the said University, upon the trust that the principal thereof shall
forever remain intact, and that the rents, issues and profits
thereof shall be devoted to the maintenance of said University.

* * * T wish thus publicly to acknowledge my great
gratitude to an allwise, loving Heavenly Father for His sustain-
ing grace through the past ten years of bereavement, trial and
disappointments. In all I have leaned hard on this Great Com-
forter and found rest and peace. I have no doubt about a future
life beyond this; a fair land where no more tears will be shed and
no more partings had.

§ 1261. Will of George Washington.—In the name of
God, Amen: I, George Washington, of Mount Vernon, a citi-
zen of the United States, and lately President of the same, do
make, ordain, and declare this instrument which is written with
my own hand, and every page thereof subscribed with my name,
to be my last will and testament, revoking all others, imprimis.

All my debts, of which there are but few, and none of magni-
tude, are to be punctually and speedily paid, and the legacies
hereinafter bequeathed, are to be discharged as soon as circum-
stances will permit, and in the manner directed.

Item. To my dearly beloved wife, Martha Washington, I give
and bequeath the use, profit, and benefit of my whole estate, real
and personal, for the term of her natural life, except such parts
913 WILLS OF FAMOUS PERSONS § 1261

thereof as are specially disposed of hereafter. My improved lot
in the town of Alexandria, situated on Pitt and Cameron Streets,
I give to her and her heirs forever; as I also do my household
and kitchen furniture of every sort and kind with the liquors and
groceries which may be on hand at the time of my decease, to be
used and disposed of as she may think proper.

Item. Upon the decease of my wife, it is my will and desire
that all the slaves which I hold in my own right shall receive their
freedom. To emancipate them during her life, would, though
earnestly wished by me, be attended with such insufferable diffi-
culties on account of their intermixture by marriages with the
dower negroes, as to excite the most painful sensations, if not dis-
agreeable consequences from the latter while both descriptions
are in the occupancy of the same proprietor; it not being in my
power, under the tenure by which the dower negroes are held, to
manumit them. And whereas, among those who will receive
freedom according to this devise, there may be some who from
old age or bodily infirmities, and others who, on account of their
infancy, that will be unable to support themselves, it is my will
and desire that all who come under the first and second descrip--
tion, shall be comfortably clothed and fed by my heirs while they
live; and that such of the latter description as have no parents
living, or, if living, are unable or unwilling to provide for them,
shall be bound by the court until they shall arrive at the age of
twenty-five years; and in cases where no record can be produced,
whereby their ages can be ascertained, the judgment of the court
upon its own view of the subject, shall be adequate and final. The
negroes thus bound, are (by their masters and mistresses) to be
taught to read and write and to be bro’t up to some useful occu-
pation, agreeably to the laws of the commonwealth of Virginia,
providing for the support of orphan and other poor children.
And I do hereby expressly forbid the sale or transportation out
of the said commonwealth of any slave I may die possessed of
under any pretense whatsoever. And I do moreover, most point-
edly and most solemnly enjoin it upon my executors hereafter
named, or the survivor of them, to see that this clause respecting
slaves and every part thereof, be religiously fulfilled at the epoch

58—THomp. WILLS.
§ 1261 WILLS 914

at which it is directed to take place, without evasion, neglect, or
delay, after the crops which may then be on the ground are har-
vested, particularly as it respects the aged and infirm; seeing that
a regular and permanent fund be established for their support
so long as there are subjects requiring it; not trusting to the un-
certain provision to be made by individuals ;—And to my mulatto
man William (calling himself William Lee) I give immediate
freedom, or if he should prefer it (on account of the accidents
which have befallen him and which have rendered him incapable
of walking or of any active employment) to remain in the situa-
tion he now is, it shall be optional in him to do so, in either case
however, I allow him an annuity of thirty dollars during his nat-
ural life, which shall be independent of the victuals and cloaths
he has been accustomed to receive if he chuses the last alterna-
tive; but in full with his freedom, if he prefers the first; and this
I give him as a testimony of my sense of his attachment to me,
and for his faithful services during the Revolutionary War.

Item. To the trustees (governors, or by whatsoever other name
they may be designated) of the Academy, in the town of Alexan-
dria, I give and bequeath, in trust, four thousand dollars, or, in
other words, twenty of the shares which I hold in the bank of
Alexandria, towards the support of a free school, established at,
and annexed to, the said Academy, for the purpose of educating
such orphan children, or the children of such other poor and indi-
gent persons as are unable to accomplish it with their own means;
and whom,in the judgment of the trustees of the said Seminary,
are best entitled to the benefit of this donation.

Item. Whereas by a law of the commonwealth of Virginia,
enacted in the year 1785, the legislature thereof was pleased (as
an evidence of its approbation of the services I had rendered the
public during the Revolution, and partly, I believe, in considera-
tion of my having suggested the vast advantages which the com-
munity would derive from the extension of its inland navigation
under legislative patronage) to present me with one hundred
shares of one hundred dollars each, in the incorporated company
established for the purpose of extending the navigation of James
River from tide water to the mountains;—and also with fifty
915 WILLS OF FAMOUS PERSONS § 1261

shares of one hundred pounds sterling each, in the corporation
of another company likewise established for the similar purpose
of opening the navigation of the river Potomac from tide water
to Fort Cumberland; the acceptance of which, although the offer
was highly honourable and grateful to my feelings, was refused
as inconsistent with a principle which I had adopted, and have
never departed from—namely—not to receive pecuniary compen-
sation for any services I could render my country in its ardious
struggle with Great Britain for its rights; and because I had
evaded similar propositions from other states in the Union.
Adding to this refusal, however, an intimation that, if it should
be the pleasure of the legislature to permit me to appropriate the
said shares to public uses, I would receive them on those terms
with due sensibility ; and this it having consented to, in flattering
terms, as will appear by a subsequent law and sundry resolutions,
in the most ample and honourable manner, I proceed after this
recital for the more correct understanding of the case, to declare
—That as it has always been a source of serious regret with me
to see the youth of these United States sent to foreign countries
for the purpose of education, often before their minds were
formed, or they had imbibed any adequate ideas of the happiness
of their own; contracting too frequently, not only habits of dissi-
pation and extravagance, but principles unfriendly to republican
government, and to the true and genuine liberties of mankind;
which, thereafter are rarely overcome. For these reasons, it has
been my ardent wish to see a plan devised on a liberal scale which
would have a tendency to spread systematic ideas through all
parts of this rising empire, thereby to do away local attachments
and state prejudices, as far as the nature of things would, or in-
deed ought to admit, from our National Councils. Looking anx-
iously forward to the accomplishment of so desirable an object
as this is (in my estimation) my mind has not been able to con-
template any plan more likely to effect the measure than the estab-
lishment of a university in a central part of the United States, to
which the youths of fortune and talents from all parts thereof
might be sent for the completion of their education in all the
branches of polite literature; in arts and sciences, in acquiring
§ 1261 WILLS 916

knowledge in the principles of politics and good government,
and (as a matter of infinite importance in my judgment) by asso-
ciating with each other and forming friendships in juvenile
years, be enabled to free themselves in a proper degree from those
local prejudices and habitual jealousies which have just been
mentioned ; and which, when carried to excess, are never failing
sources of disquietude to the public mind, and pregnant of mis-
chevious consequences to this country; under these impressions,
so fully dilated.

Item. I give and bequeath in perpetuity the fifty shares which
I hold in the Potomac Company (under the aforesaid acts of the
legislature of Virginia) towards the endowment of a university
to be established within the limits of the District of Columbia,
under the auspices of the general government, if that government
should incline to extend a fostering hand towards it.

Item. The hundred shares which I hold in the James River
Company, I have given, and now confirm in perpetuity, to and
for the use and benefit of Liberty Hall Academy, in the county
of Rockbridge, in the commonwealth of Virginia.

Item. I release, exonerate and discharge the estate of my de-
ceased brother, Samuel Washington, from the payment of the
money which is due to me for the land I sold to Philip Pendleton
(lying in the county of Berkeley) who assigned the same to him,
the said Samuel, whom by agreement, was to pay me therefor:
And whereas, by some contract (the purport of which was never
communicated to me) between the said Samuel and his son,
Thornton Washington, the latter became possessed of the afore-
said land, without any conveyance having passed from me, either
to the said Pendleton, the said Samuel, or the said Thornton, and
without any consideration having been made, by which neglect
neither the legal nor equitable title has been alienated; it rests
therefore with me to declare my intentions concerning the prem-
ises ; and these are to give and bequeath the said land to whomso-
ever the said Thornton Washington (who is also dead) devised
the same, or to his heirs forever, if he died intestate ; exonerating
the estate of the said Thornton, equally with that of the said
Samuel, from payment of the purchase-money, which, with inter-
917 WILLS OF FAMOUS PERSONS § 1261

est, agreeably to the original contract with the said Pendleton,
would amount to more than a thousand pounds. And whereas
two other sons of my deceased brother, Samuel, namely, George
Steptoe Washington, and Lawrence Augustine Washington, were
by the decease of those, to whose care they were committed,
brought under my protection, and in consequence have occasioned
advances on my part for their education at college and other
schools, for their board, clothing, and other incidental expenses,
to the amount of near five thousand dollars over and above the
sums furnished by their estate, which sum it may be inconvenient
for them on their father’s estate to refund—lI do, for these rea-
sons, acquit them and the said estate from the payment thereof—
my intention being that all accounts between them and me, and
their father’s estate and me, shall stand balanced.

Item. To my nephew, Bushrod Washington, I give and be-
queath all the papers in my possession, which relate to my civil
and military administration of the affairs of this country—I leave
to him also, such of my private papers as are worth preserving;
and at the decease of my wife, and before, if she is not inclined
to retain them, I give and bequeath my library of books and pam-
phlets of every kind.

Item. To the Earl of Beuban I recommit “the box made of the
oak that sheltered the great Sir William Wallace after the Battle
of Falkirk”—presented to me by his Lordship, in terms too flat-
“tering for me to repeat, with a request “to pass it, on the event
of my decease, to the man in my country, who should appear to
merit it best, upon the same conditions that have induced him to
send it to me.” Whether easy or not, to select the man who
might comport with his Lordship’s opinion in this respect, is not
for me to say; but conceiving that no disposition of this valuable
curiosity can be more eligible than the recommitment of it to his
own cabinet, agreeably to the original design of the Goldsmiths’
Company of Edinburg, who presented it to him, and, at his re-
quest, consented that it should be transferred to me—I do give
and bequeath the same to his Lordship; and, in case of his de-
cease, to his heir, with my grateful thanks for the distinguished
§ 1261 WILLS 918

honour of presenting it to me, and more especially for the favor-
able sentiments with which he accompanied it.

Item. To my brother, Charles Washington, I give and be-
queath the gold-headed cane left me by Dr. Franklin, in his will.
I add nothing to it, because of the ample provision I have made
for his issue. To the acquaintances and friends of my juvenile
years, Lawrence Washington and Robert Washington, of Cho-
tanck, I give my other two gold-headed canes, having my arms
engraved on them; and to each (as they will be useful where they
live) I leave one of the spyglasses, which constituted part of my
equipage, during the late war. To my compatriot in arms and
old and intimate friend, Dr. Craik, I give my bureau (or, as the
cabinet makers call it, tambour secretary) and the circular chair,
an appendage of my study. To Dr. David Stuart I give my large
shaving and dressing table, and my telescope. To the Reverend,
now Bryan Lord Fairfax, I give a Bible, in three large folio
volumes, with notes,—presented to me by the Rt. Rev. Thomas
Wilson, Bishop of Sodor and Man. To General De la Fayette
I give a pair of finely wrought steel pistols, taken from the enemy
in the Revolutionary War. To my sisters-in-law, Hannah Wash-
ington and Mildred Washington—to my friends Eleanor Stuart,
Hannah Washington, of Fairfield, and Elizabeth Washington,
of Hayfield, I give, each, a mourning ring, of the value of one
hundred dollars. These bequests are not made for the intrinsic
value of them, but as mementos of my esteem and regard. To
Tobias Lear I give the use of the farm which he now holds, in
virtue of a lease from me to him and his deceased wife (for and
during their natural lives) free from rent during his life; at the
expiration of which, it is to be disposed of as in hereinafter
directed. To Sally B. Haynie (a distant relation of mine) I give
and bequeath three hundred dollars. To Sarah Green, daughter
of the deceased Thomas Bishop, and to Ann Walker, daughter of
John Alton, also deceased, I give each one hundred dollars, in
consideration of the attachment of their fathers to me; each of
whom having lived nearly forty years in my family. To each of
my nephews, William Augustine Washington, George Lewis,
George Steptoe Washington, Bushrod Washington, and Samuel
919 WILLS OF FAMOUS PERSONS § 1261

Washington, I give one of the swords or cutteaux of which I
may die possessed; and they are to choose in the order they are
named. These swords are accompanied with an injunction not to
unsheath them for the purpose of shedding blood, except it be
for self-defence, or in defence of their country and its rights;
and in the latter case, to keep them unsheathed, and prefer falling
with them in their hands to the relinquishment thereof.

And now, having gone through these specific devises, with
explanations for the more correct understanding of the meaning
and design of them, I proceed to the distribution of the more im-
portant parts of my estate, in manner following:

First. To my nephew, Bushrod Washington, and his heirs
(partly in consideration of an intimation to his deceased father,
while we were bachelors, and he had kindly undertaken to super-
intend my estate during my military services in the former war
between Great Britain and France) that if I should fall therein,
Mount Vernon (then less extensive in domain than at present)
should become his property. I give and bequeath all that part
thereof, which is comprehended within the following limits, viz. :
Fifth. All the rest and residue of my estate, real and personal,
not disposed of in manner aforesaid, in whatsoever consisting,—
wheresoever lying—and whensoever found—a schedule of
which as far as is recollected, with a reasonable estimate of its
value, is hereunto annexed—I desire may be sold by my execu-
tors at such times—in such manner, and on such credits (if an
equal, valid, and satisfactory distribution of the specific prop-
erty cannot be made without) as in their judgment shall be
most conducive to the interest of the parties concerned, and
the monies arising therefrom to be divided into twenty-three
equal parts, and applied as follows: (Here follows the list of
beneficiaries and description of property) ; and by way of ad-
vice I recommend it to my executors not to be precipitate in
disposing of the landed property (herein directed to be sold)
if from temporary causes the sale thereof would be dull; ex-
perience having fully evinced that the price of land (especially
above the falls of the rivers and on the western waters) have
§ 1261 WILLS 920

been progressively rising and can not be long checked in its
encreasing value.

The family vault at Mount Vernon, requiring repairs, and
being improperly situated besides, I desire that a new one of
brick, and upon a larger scale, may be built at the foot of what
is commonly called the vineyard inclosure, on the ground
which is marked out—in which my remains, with those of my de-
ceased relations (now in the old vault) and such others of my
family as may chuse to be entombed there, may be deposited.
And it is my express desire, that my corpse may be interred in
a private manner, without parade or funeral oration.

Lastly, I constitute and appoint my dearly beloved wife,
Martha Washington, my nephews William Augustine Wash-
ington, Bushrod Washington, George Steptoe Washington,
Samuel Washington, and Lawrence Lewis, and my ward
George Washington Parke Custis (when he shall have arrived
at the age of twenty years) executrix and executors of this
will and testament—in the construction of which, it will read-
ily be perceived that no professional character has been con-
sulted, or has had any agency in the draught, and that although
it has occupied many of my leisure hours to digest, and to
throw it into its present form, it may, notwithstanding, appear
crude and incorrect—but having endeavored to be plain and
explicit in all the devises, even at the expence of prolixity,
perhaps of tautology, I hope and trust that no disputes will
arise concerning them; but if, contrary to expectation, the case
should be otherwise from the want of legal expression, or the
usual technical terms, or because too much or too little has.
been, said on any of the devises to be consonant with law, my
will and direction expressly is, that all disputes (if unhappily
any should arise) shall be decided by three impartial and intel-
ligent men, known for their probity and good understanding
—two to be chosen by the disputants, each having the choice
of one, and the third by those two—which three men thus.
chosen shall, unfettered by law or legal constructions, declare
their sense of the testator’s intentions; and such decision is, to
all intents and purposes, to be as binding on the parties as if
921 WILLS OF FAMOUS PERSONS § 1262

it had been given in the Supreme Court of the United States.
In witness of all, and of each of the things herein contained,
I have set my hand and seal, this ninth day of July, in the year
one thousand, seven hundred and ninety + and of the inde-
pendence of the United States the twenty-fourth.
GEORGE WASHINGTON.

 

§ 1262. Will of John R. McLean.—I, John R. McLean,
of the city of Washington, in the District of Columbia, do
hereby make, publish and declare this as and for my last will
and testament, hereby revoking any and all former wills, tes-
taments and codicils by me at any time heretofore made.

I. I direct the payment of my just debts, including my
funeral expenses, as soon after my decease as may be prac-
ticable.

II. To Christine Queen Owen, to Mrs. Kathleen Beale
Crawford and to Mrs. Hattie Downs Thissell, I give and be-
queath the sum of ten thousand dollars ($10,000) each.

III. To Miss Fannie Richards, of Cincinnati, Ohio, I give
and bequeath an annuity of six hundred dollars ($600) per
annum for the term of her natural life; and to my cousin
Jeanie McLean, of the same place, I give and bequeath an an-
nuity of four hundred dollars ($400) per annum for the term
of her natural life.

IV. To Mazie B. Dadford I give and bequeath an an-
nuity of six hundred dollars ($600) per annum for her nat-
ural life; to Robert E. Holmes and to Nathan Robinson I give
and bequeath an annuity of four hundred dollars ($400) per
annum, each, for the term of his natural life and to Martha
Diggs I give and bequeath an annuity of three hundred dol-
lars ($300) per annum for the term of her natural life.

V. To Robert Megget I give and bequeath the sum of
four hundred dollars ($400) per annum for the period of five
(5) years after death, at the end of which period I give and
bequeath to the said Robert Megget the sum of three thousand

dollars ($3,000).

1It appears that the testator omitted the word “nine.”
§ 1262 WILLS 922

VI. If at the time of my decease, or at any time thereafter
while any of the foregoing bequests shall remain not com-
pletely realized by the beneficiaries thereof, the net income
from my estate shall be insufficient to yield a sum of twenty-
five thousand dollars ($25,000) per annum for the maintenance
and benefit of my son, Edward B. McLean, under the provi-
sions with respect to him in this instrument hereinafter con-
tained, it is my will, and I so direct, that, to the extent of
twenty-five thousand dollars ($25,000) per annum, the provi-
sions in favor of my said son shall be paramount, and the said
legacies shall be so postponed in enjoyment, or so abated, as
not to interfere with a provision for him to the extent of
twenty-five thousand dollars ($25,000) per annum, subject to
the terms and conditions in respect to him so as aforesaid
hereinafter contained.

VII. All my wearing apparel, jewelry and other articles
of personal use, adornment and belongings, I give and bequeath,
absolutely, to my son Edward B. McLean.

VIII. All the rest, residue and remainder of my property
and estate, of whatsoever kind and character and whereso-
ever situated, of which I may die seized or possessed or to
which I may be in any manner justly entitled at the time of
my death, I give, devise and bequeath, in fee simple and abso-
lutely, to the American Security and Trust Company, of the
city of Washington, in the District of Columbia, as trustee, in
and upon the following trusts, and none others, namely:

1. In trust, to hold, manage and control the same, to collect
all the rents, issues, income and profits therefrom, to pay all
taxes, insurance charges, necessary repairs and other proper
expenses connected therewith, and with full power to sell and
convey, from time to time, such parts if any of my property
and estate, as in its best judgment and discretion it may be ex-
pedient and advantageous to do, without liability upon the part
of any purchaser to see to the application of the purchase-
money, the proceeds of any such sale or sales to be re-invested
from time to time as judiciously, advantageously and securely
as my said trustee may be able to do.
923 WILLS OF FAMOUS PERSONS § 1262

t

2. In further trust to pay the net income of:my said estate
to my son Edward B. McLean so long as he shall live, monthly
from the time of my death in so far as may be practicable,
without power of alienation or anticipation; or to apply the
said income to his use and benefit as the same shall accrue, if
in its judgment, it shall be most to his interest so to do, no
part of the said income, or of my estate, to be at any time or
in any manner subject to the payment of any indebtedness of
my said son, whether existing at the time of my death or aris-
ing subsequently, either wholly or as to any part thereof, or to
any assignment, conveyance, mortgage, pledge, legal process
against him, or any other form of alienation by him, volun-
tary or involuntary, nor shall any payment of the said income
be made otherwise than by delivery thereof into his own
hands, after its accrual, either in money or by check or draft
payable to his own order.

3. Upon further trust, upon the death of my said son, to
make partition of all the real estate in the state of Ohio of
which I shall die seized, either by conveyance in kind or by sale
and distribution of the proceeds thereof, as it shall find most
practicable and most for the benefit of the said beneficiaries,
among his lineal descendants living at the time of his death,
per stirpes; or, if my said son shall leave no lineal descend-
ants him surviving at the time of his death, then in trust to
make partition of my said Ohio real estate, in kind or by sale
and distribution of the proceeds as aforesaid, per stirpes,
among my own heirs at law then living.

4. In further trust, as to all the rest and residue of my
estate, real and personal, to pay the net income therefrom on
and after the death of my said son to his lineal descendants,
per stirpes, until twenty years after the death of the last sur-
vivor of such of his lineal descendants as shall be living at the
time of my death, and then to distribute the principal of my
said estate among his lineal descendants then living, per
stirpes; provided, however, that if my said son should die
without leaving any lineal descendants living at the time of
his death, or should no lineal descendant of his live until the
§ 1262 WILLS 924

period for distribution of the residue of my estate as herein-
before provided, then in trust to distribute, assign and convey
all my said remaining property and estate among my then
living heirs at law and next of kin in the proportions in which
they shall be entitled to receive the same, as to my real estate
under the laws of descent in the several states where the same
is situated, and as to my personal property under the law of
distribution in force in the District of Columbia, at the time of
my decease.

IX. It is my will, and I further direct that, after the death
of my said son, each child of his who shall survive him shall
receive from my said trustee the sum of one hundred thousand
dollars ($100,000) on attaining twenty-five years of age, an
additional one hundred thousand dollars ($100,000) on at-
taining the age of thirty years, and an additional one hundred
thousand dollars ($100,000) on attaining the age of thirty-five
years; any child or children of my said son who shall at the
time of his decease have attained the said ages to be paid by
my said trustee within one year after my son’s death the sums
above specified, namely, one hundred thousand dollars ($100,-
000) to such as shall have attained the age of twenty-five
years, two hundred thousand dollars ($200,000) to such as
shall have attained the age of thirty years, and three hundred:
thousand dollars ($300,000) to such as shall have attained
the age of thirty-five years. Each of my son’s children, or his
or her descendants, are to be charged in the final distribution
of my estate with the sums of money received by him or her
under this paragraph of my will, with interest at the rate of
four and one-half per centum (414%) per annum from the
time of the payment thereof.

X. I direct that no sale of any of the newspaper proper-
ties, or of any interest therein, belonging to me at the time of
my death shall be made by my executor or trustee until the
same shall first have been approved in writing by my friend
Francis T. Homer, of the city of Baltimore, in the state of
Maryland, provided he be living and capable of attending to
business at the time thereof; or, if he shall fail to approve,
925 WILLS OF FAMOUS PERSONS § 1262

then without the written approval of my said son. I further di-
rect that, so long as my said friend Francis T. Homer shall
be living and capable of attending to business, my executor
and trustee shall seek and obtain the benefit of his judgment
in all matters pertaining to the control and management of
my estate, including the management of my said newspaper
interests, and all other matters connected with the adminis-
tration of the trusts by this, my last will and testament, cre-
ated; and, as compensation for his services in that regard, and
for such counsel and advice as my son Edward B. McLean
may request and obtain from him, I direct that my trustee pay
to him an annual compensation of ten thousand dollars ($10,-
000), the same to be charged as one of the expenses of the
management of the trust estate.

Further as to my said newspaper interests, having the en-
tire ownership of certain newspaper properties in Cincinnati,
Ohio, it is my will, and I so direct, that, for the period of five
(5) years after my death, or until the sale thereof, Edward
Flicker shall be retained as business manager, and W. F. Wi-
ley as editorial manager, under the supervision and direction
of my said friend Francis T. Homer and of my son Edward
B. McLean, or, in the event of the.death or disability of either,
then under the supervision and direction of the survivor of
them and my executor and trustee hereinafter named, the said
Edward Flicker and W. F. Wiley each to receive compensa-
tion for his said services at the rate of six thousand dollars
($6,000) per annum throughout the said period of five years,
or until the said newspaper properties in Ohio shall have been
sold, in which latter event one-half of the said salaries shall be
paid to the said Edward Flicker and W. F. Wiley, respectively,
for the period intervening between such sale and the expiration
of the said five years. If the said Ohio newspaper properties
shall not at the expiration of the said five years have been sold, it
is my wish, and I so direct, that the said Edward Flicker and W.
F. Wiley be thereafter retained in the positions above indicated
with respect to the said properties so long as in the judgment of
the said Francis F. Homer and my said son Edward B. McLean,
§ 1262 WILLS 926

or, in the event of the death or disability of either of them, in the
judgment of the survivor and of my executor and trustee, or the
survivor of them, it shall be advisable so to do.

With respect to the interests which I may hold at the time of
my death in any newspaper or newspapers in the city of Wash-
ington, D. C., I desire and recommend that Arthur D. Marks
be retained as business manager and Edward S. Rochester as
editorial manager thereof, and desire that my said friend
Francis T. Homer and my son Edward B. McLean be freely
and at all times consulted by my executor and trustee in its
representation of my interests with respect to the said prop-
erties.

XI. I have not included my said son Edward B. McLean
as an executor and trustee under this, my last will and testa-
ment, solely because of the existence, as I am informed, of
legal difficulties or obstacles to the appointment of a beneficiary
under a will to act as a trustee thereunder. It is my wish, how-
ever, and I so direct, that my executor and trustee shall consult
with my said son in all matters of importance relating to the
management of my estate, and that the fullest and freest ac-
cess be afforded him at all times to the accounts, books and
records connected with its management, including the oppor-
tunity at all times to inspect and to satisfy himself as to the
character of all the investments, securities and assets thereof.

XII. I further authorize and direct that my executor and
trustee permit my son to occupy the city residence and the
country place which are owned by me, and to use the furni-
ture and other personal property contained therein, free of
rent or cost to him, so long as he shall desire to occupy the
same, hereby exonerating my executor and trustee from re-.
sponsibility, in any way, for any damage to the said furniture
or personal property, or for any which may be lost or de-
stroyed during his said occupancy thereof; his said right of
occupancy, however, not to interfere in any way with the dis-
cretionary powers of my said executor and trustee at any time
to sell and reinvest the proceeds of any or all the property be-
longing to my estate hereinbefore given.
927 WILLS OF FAMOUS PERSONS § 1262

XII. In making distribution of the net income of my
estate, as hereinbefore provided, my trustee hereunder is
hereby authorized to retain, in its own hands, such reserva-
tions for taxes, improvements or reserve as it may consider
reasonably proper in connection with the administration of its
trust; and I further recommend that it keep invested from one
hundred thousand dollars ($100,000) to one hundred and fifty
thousand dollars ($150,000), in its discretion, in United

States Government bonds, capable of being readily converted
into cash in case of emergency, and the proceeds used by my
said trustee in such manner and for such purposes as it, my
son Edward B. McLean and my friend Francis T. Homer, or
the survivors or survivor of them, shall consider to the best
interests of my estate.

XIV. I hereby appoint the American Security and Trust
Company of the city of Washington, in the District of Colum-
bia, to be the executor of this my last will and testament, and
the trustee thereunder; and I request that no bond shall be re-
quired of it in any jurisdiction in which it may be called upon
to qualify or act, other than such as may be absolutely neces-
sary under the laws in force in such jurisdiction.

Witness my hand and seal this 3d day of June, A. D.
1915.

Joun R. McLean. (SEAL.)

Signed, sealed, published and declared as and for his last
will and testament by the above named testator in the. presence
of us, who, in his presence, at his request and in the presence
of each other, have subscribed our names as attesting witnesses

thereto.
J. J. DarLincTon.

W. C. SULLIVAN.
CHARLES Fauy.
INDEX

[References are to Sections.]

A
ABATEMENT,
See Apemption ; ApvANCcEMENTS; Lapse.

form of provisions in will as to abatement of legacy, 910-924.

ABSENT LEGATEES,
forms of bequests, 708, 709.

ABSURD OPINIONS,

indicia of unsound mind, 83.

ACCEPTANCE,
acceptance of legacy as estoppel, 519.
gifts causa mortis, 3.

ACCIDENT,
ground for contest of will, 524.

ACCOUNTS,
description in wills, 220.
form relative to auditing and examining, 1027,
provisions for auditing in will, 401.

ACCUMULATION,

forms conferring power on trustees to accumulate income, 1023.
income as violation of rule against perpetuities, 272.

Thelusson Act, 346.

trust for accumulation of income, 346,

ACKNOWLEDGMENT,
trust deeds, 4.

ACTIVE TRUSTS,
creation, 343,

ACTORS’ HOME,
provision for endowment in will of Forrest, 1250.
ADDITIONAL LEGACIES,
See CumuLative LEGAcIEs.

ADDITIONS,
form of clause covering alterations and additions, 1147.

operation and effect, 156, 452.
to revoke will, 465.

929
590—Tuomr, WILLs.
930 INDEX

[References are to Sections.]
ADEMPTION,
by advancement, 434.
by implication, 434.
defined, 434.
distinguished from doctrine of revocation, 469.
effect of republication by codicil, 479.
form of demonstrative legacy with provisions for ademption, 677.
form of provision for ademption of specific legacy, 916.
provision for in will, 434.
pecific legacies, 434.

ADJUDICATED FORMS,
entire wills, 1170-1233.

ADMINISTRATION,
debts and expenses, 2.
necessity in case of intestacy, 2.

ADMISSIONS,

evidence in contest of will, 533.

ADOPTED CHILDREN,
capacity as beneficiaries under will, 105.
designation in will as beneficiaries, 176.
effect of adoption to revoke will, 467.
forms of bequests, 707.
form of clause excluding, 1126.

ADVANCEMENTS,
ademption, 434.
form of advancements to children to be pro tanto in satisfaction of
shares, 1137.
clause conferring power on trustees to make advancements,
1016,
codicil reducing legacy by amount of advancements, 1155.
power to trustees to make advances, 1019, 1020. -
provision that advancements are not to be in satisfaction of
portions, 1139,
provision that advancements are to be brought into court, 1138.
provision that advancements are to be treated as gifts, 1135, 1136.
necessity that they be saved by will, 433.
provision in will, 12, 433.
purpose under will, 367.
right of executor to charge interest, 433.
under testamentary powers, 382.

ADVICE,
See SuccEsTIONS IN PLANNING AND DRAFTING.

attorney to testator, 123.
form conferring power on trustees to sell trust property with advie
INDEX 931

[References are to Sections.]
ADVICE—Continued.
as to its management, 996,
‘ form of advice to purchase annuity, 933,
suggestions in planning and drafting Wills, 121.

AFTER-ACQUIRED PROPERTY,
disposition by will, 56, 57, 206.
passage by will under laws of particular states and countries, 540-603,
residuary clauses, 142.
specific devise, 137.

AFTERBORN CHILDREN,
beneficiaries under testamentary trust, 352,
beneficiaries under will, 104.
capacity to take under will, 104.
designation in will as beneficiaries, 176.
forms of bequests, 706.
rights under laws of particular states and countries, 540-603.
when considered in being, 176.

AGE,
testamentary capacity under laws of particular states and countries,
540-603.

AGED PERSONS,
capacity to make will, 84.
necessity of knowledge of contents of will, 441.

AGENCY,

duties of consular agents in respect to foreign wills, 610-649.

form of appointment to manage and wind up partnership business,
1107.

power in execution of will under laws of particular states and coun-
tries, 540-603.

proponent of will, 490.

provisions in will for appointment, 397.

testamentary power, 365.

AGREEMENTS,
See ContTRACTS.

form of agreement to give effect to intended will not executed, 1180.

ALABAMA, 2
statutes governing wills, 540.

ALASKA,
statutes governing wills, 541.
932 INDEX

[References are to Sections.}

ALIENATION,
conditions in will, 296, 297.
effect to revoke will, 469.
form of provision that annuity cease on alienation, 930.
income of trust by anticipation, 348.

ALIENS,
See TreaTIESs AND CONVENTIONS.

beneficiaries under testamentary trust, 352.

capacity to act as trustee of testamentary trust, 350.

capacity to dispose of property by will, 79, 540-603.

capacity to take under will, 96, 540-603.

forms of bequests to citizens of foreign countries and disposing of
property in foreign land, 1217.

probate of foreign wills, 506.

rights conferred purely local, 79.

right to make and take under laws of particular states and countries,
540-603.

“ALL MY WORLDLY GOODS,”
property covered by phrase, 211.

ALLOTMENT, -
form containing power to allot specific property in consideration of
legacies, 1030.

ALTERATION,
codicil relating to alteration of will by erasure or interlineation, 1164.
correction by re-execution or codicil, 156.
effect of alteration between different signatures to will, 451.
effect to revoke will, 465.
forms of clauses governing alterations, 1146, 1147.
will with alterations and codicils, 1228.
immaterial alterations after execution of will, 156.
operation and effect, 156, 452.
wills under laws of particular states and countries, 540-603.

ALTERNATE CHARITIES,
form of bequest, 883.

ALTERNATIVE WILLS,
nature and characteristics, 27.
probate, 501.

ANCESTORS,
whether descendants, 174.

ANIMALS,
See Live Stock.
form of bequest for maintenance, 748.
INDEX 933

[References are to Sections.]
ANNUITIES,
charging realty with payment, 323.
forms of bequests in wills, 925-933,
condition to pay annuity, 908.
trust of annuity for spendthrift and wife and child, 969.
gifts conditioned on payment by beneficiary, 295,

ANTE-NUPTIAL AGREEMENTS,

See Marrtace SETTLEMENTS.
consideration, 6.
essential of reduction to writing, 6.
form of clause recognizing, 1131.
method of devolving property, 1.
revocability, 6.
whether dower barred, 6.

ANTICIPATION,
alienation or assignment of income by anticipation, 348.

APPLICATION,
establishment of lost or destroyed will, 504.
form and contents in probate of will, 492.
income of testamentary trust, 349.

APPOINTMENT,
See TesTAMENTARY Powers.

delegation of power under will, 373, 374.
executors in different states, 410.
form of appointment under trust, 993.
devise to daughter with power of appointment, 990.
entire will of married woman in exercise of power of appoint-
ment in marriage settlement, 1179.
power of appointment after termination of trust estate, 989.
provisions in will for appointment of executors, trustees and guardians,
410-412, 1097-1118.
to whom appointment under power may be made, 374.

APPORTIONMENT,
form of clause for apportionment of interest on legacy, 1093.
power to make, 365, 375.
shares under testamentary powers, 375.

APPRAISEMENT,
provisions in will, 400.

ARBITRATION,
form conferring power on executors, 1081.
934 , INDEX

[References are to Sections.}

ARGENTINE REPUBLIC,
treaty affecting disposition and transmission of property, 611.

ARIZONA,
statutes governing wills, 542.

ARKANSAS,
form of devise to son for life, remainder to church, 843,
statutes governing wills, 543,

ASSIGNMENTS,
form of assignment by way of sale of a legacy, 1181.
assignment of book debts, 787.
assignment of business and good will by parent to son, 788.
income of trust by anticipation, 348.

ASSOCIATIONS,

See CHARITABLE CoRPORATIONS.

designation in will as beneficiaries, 185, 186.

ATTESTATION,
at request of testator, 449.
by mark under laws of particular states and countries, 540-603.
by witnesses to will, 446.
clause to will, 447.
competency of attesting witnesses, 448, 528.
under laws of particular states and countries, 540-603.
defined, 446.
form of clauses, 1144.
holographic wills, 25, 453.
nuncupative wills, 454.
revocation of will, 461. 4
signing by witnesses in presence of testator, 451.
time of competency of witnesses to will, 499.
wills under civil laws, 558.
under laws of particular states and countries, 540-603.

ATTESTING WITNESSES,
capacity to take under will, 107.
oral testimony on probate of will, 498.

ATTORNEY IN FACT,
capacity to execute power under will, 369.

ATTORNEYS,
advice and explanation to testator, 123.
draftsman of will as witness to same, 127.
form directing employment by executors, 1045, 1046, 1079.
necessity for employment of capable in drafting will, 11.
practical suggestions in planning and drafting wills, 115-131,
INDEX 935

[References are to Sections.]
ATTORNEYS—C ontinued.
proponent of will, 490.
provisions in will for appointment, 397.

AUDIT,

provisions in will for auditing accounts and securities, 401.

AUDUBON, JOHN JAMES
will, 1240.

AUSTRIA-HUNGARY,
treaty affecting disposition and transmission of property, 612.

AUTHENTIC WILLS,
under laws of Quebec, 601.

B
BANK BOOKS,
delivery as gift causa mortis, 3.
rights of surviving joint depositor, 7.

BANK DEPOSITS,
See Deposits.

BANKRUPTCY, :
conditions in will against bankruptcy, 292.
form of proviso that interest shall cease on bankruptcy or alienation,

976.
trust for son for life determinable on bankruptcy, 975.
BANK STOCK,
form of bequests, 218.
BAPTISM,
conditions in wills that beneficiary be baptised by cerfain name, 294,
BASE FEES,

creation by will, 235.
form of devise, 832.

BASTARDS,
See ILLEGITIMATE CHILDREN.

capacity to take under will, 106.

BAVARIA,
treaty affecting disposition and transmission of property, 613.

BEECHER, HENRY WARD
will, 1241.

BELGIUM,

treaty affecting disposition and transmission of property, 614.
936 INDEX

[References are to Sections.]
BENEFICIARIES, ;
See Capacity oF BENEFICIARIES; DESIGNATING BENEFICIARIES AND THEIR
SHARES.

laws governing capacity to take, 44.

BENEVOLENT SOCIETIES,
validity of gifts under laws of particular states and countries, 540-603.

BENTON, THOMAS H.
will, 1242.

BEQUEATH,
defined, 8.

BEQUESTS,
See GeneraL Lecacies; Lecacies.

charging specific property with payment of debts and legacies, 320-327.
conditions and restrictions, 280-297.
defined, 8.
forms for specific legacies and devises, 658-669.
bequests of certain kinds of property, 743-788.
codicils making substituted and additional bequests, 1154.
entire wills bequeathing estates, 1170-1233.
gifts over on death as sole contingency, 285.
income, 222, 349.
law of place as governing validity, 42.
money, 139,
personal property under laws of particular states and countries, 540-603.
share, part or portion, 205.
to same person in both will and codicil, 141.

BILLS AND NOTES,
See Bonps; Mortcaces; Notes.
BIRTH,
effect of birth of issue to revoke will, 47, 104, 467.
under laws of particular states and countries, 540-603.
form of codicil providing for birth of child, 1150.

BISHOPS,
devise to bishop for charitable purposes, 879, 882.

BLAINE, JAMES G.
will, 1243.

BLIND PERSONS,
capacity to make will, 85.
capacity to make wills under laws of particular states and countries,
540-603.
issue in contest of will, 529.
necessity of knowledge of contents of will, 441.
INDEX 937

[References are to Sections.]
BOARDS,

form of provision for filling vacancies in boards of trustees, 1109.

BODY OF TESTATOR,
provision in will for disposition, 430.

BOLIVIA,
treaty affecting disposition and transmission of property, 615.

BONDS,
description in wills, 219,
form conferring power on trustees relative to appreciation of depre-
ciation, 1006.
of bequest, 659.
of bequest of bonds to be purchased and held in trust for child,
743.
of provision appointing executor to serve without bond, 1098,
1099.
of specific legacy in proceeds of bonds, 662.
inclusion under term “stock,” 218.
provisions for investment of estate funds, 390.
provisions in wills for executor’s and trustees bonds, 416, 417.
specific bequest of coupons, 139.
subject of trust, 344.

I

BONUS,

whether capital or income of corporate stock, 345.

BOOK DEBTS,
form of assignment, 787.

BOOKS,

form of bequest for publication of scientific works, 1232.
to purchase and distribute religious books, 867.

BOOTH, EDWIN
will, 1244.

BORROWING MONEY,
form authorizing executors to continue loans, 1077, 1078.
clause giving executors power to borrow money, 1062.

BOUNDARIES, a
particular descriptions of realty in wills, 212.

BRAZIL, bse
treaty affecting disposition and transmission of property, 516.

BREACH OF TRUST,

unauthorized investments by executors, 390.
(938 INDEX

[References are to Sections.]

BREWER, DAVID J.
will, 1245.

BRITISH COLUMBIA,
statutes governing wills, 593.

BRITISH POSSESSIONS,
statutes governing wills, 600.

BROTHERS,
designation in will as beneficiaries, 177.
form of will giving the whole of estate to brother with substitution of
child, 1173.
term usually means brothers of the whole blood, 177.

BRUNSWICK,
treaty affecting disposition and transmission of property. 617.

BUILDINGS,
form conferring power on trustees to build, 1021, 1022.

BURDEN OF PROOF,
probate of will, 498.
unsoundness of mind of testator, 526.

BURIAL,
provision in will for disposition of testator’s body, 430.

,BURIAL PLACES,
provision in will of Cecil Rhodes, 1258.

BUSINESS,

authority to continue, 390.

forms authorizing continuation of business by executors, 1074-1076.
conferring power on trustees to manage business, 1034-1038.
entire will authorizing continuation of business by executors,

1178.

specific bequest of business to son, 665.

power to carry on under will, 367.

provisions in will for establishment or continuation, 14.

C

CALIFORNIA,
statutes governing wills, 544.

CANCELLATION,
effect to revoke will, 464.
INDEX 939

[References are to Sections.]
CAPACITY,

See TESTAMENTARY Capacity,

duty of draftsman to inquire as to capacity of testator, 124,
revocation of wills, 460.
to create testamentary trust, 335.

CAPACITY OF BENEFICIARIES,
adopted children, 105.
afterborn children, 104,
aliens, 96.
charitable, religious and educational institutions, 100,
children and their descendants, 103,
general rules, 95.
gifts to separate use of females, 101.
husband and wife, 102.
illegitimate children, 106.
laws governing capacity of beneficiary to take, 44,
murderer of testator, 109.
necessity of existence at time gift vests, 95.
paramours, 108.
private corporations, 97.
public and quasi corporations, 98.
subscribing witnesses, 107.
time of test, 95,
unincorporated societies, 99.

CAPITALIZATION,
wills, 159.

CASH,
description in wills, 215.

CAUSA MORTIS,
essentials of gifts, 3.
gifts defined, 3.
gifts not favored, 3.
gifts of bank deposit books, 3.
method of devolving property, 1.
necessity of acceptance, 3.
similarity of gift to nuncupative will, 22.

CEMETERIES,

forms of bequest for maintenance, 772.

CERTAINTY,
description of property devised or bequeathed, 201.
designation of beneficiaries and shares, 165.

CESTUI QUE TRUST,
estate or interest, 353.
who may be, 352.
°940 INDEX

[References are to Sections.]

CHANGED PROPERTY,
disposition by will, 58.

CHARGING SPECIFIC PROPERTY WITH PAYMENT OF DEBTS
AND LEGACIES,
charging on personalty specifically bequeathed, 325.
charging realty specifically devised with payment of debts and leg-
acies, 324.

charging realty with payment of annuity or support, 323.
effect of recommendation to charge realty, 323.
effect of residuary clause blending realty and personalty, 324, 326.
express charge of legacy upon realty, 321.
exoneration of personalty from liability for debts and legacies, 327.
form of will charging legacies, 680-686, 1231.
forms for payment of annuities, 925-933.
implied charge of legacies upon realty, 322.
legacies and debts payable out of personalty, 320,

¥

CHARITABLE GIFTS,
application of rule against perpetuities, 271.

CHARITABLE INSTITUTIONS,
capacity to take under will, 100.
competency of members to witness wills, 448.
designation in will as beneficiaries, 187.
certainty, 165.
provision for succession, 187.
validity of gifts under laws of particular states and countries, 540-603.

CHARITABLE TRUSTS,
how affected by rule against perpetuities, 271.

CHARITIES,
accumulation of income under trust, 346.
capacity of municipality to take bequest for administration, 44.
form of bequest, 720, 875, 876, 1213, 1230.
bequest absolute with request to use as charities, 887.
bequest in discretion of executor, 880, 884.
bequest of remainder to charity, 1230.
bequest to alternate charities, 883.
bequest to charity on condition subsequent, 866.
bequest to charity where beneficiaries are to be selected by life
tenant, 863.
bequest to foreign charities, 889.
bequests to purchase and distribute religious books, 867.
charitable gift for use of poor, 868-871.
gift to charitable use in foreign country, 888.
gift to home for aged women, 873.
subscription, 886.
INDEX 941

[References are to Sections.]
CHARITIES—Continued.
will containing directions as to carrying on insane hospital, 1231.
will devising remainder to charities, 1230.
will leaving residue to prison association, 1229.
generat forms for bequests and devises, 864, 865.
restrictions on power of testator, 78.

CHASE, SALMON P.
will, 1246.

CHILDREN,
See ParENT AND CHILD.

capacity as beneficiaries under will, 103-106.
designation im will as beneficiaries, 176.
form conferring power on trustees relative to maintenance and edu-
cation of children, 1015-1017.
clause disinheriting, 1124.
clause excluding children, 1122.
clause naming children of marriage, 1121.
codicil providing for birth, 1150.
entire wills making devises and bequests, 1170-1233.
legacy to children to equalize shares, 731.
provision for inequalities as to children or their issue, 1123.
will bequeathing specific devises to children, 1212.
generally held to exclude step-children, 193.
to include immediate offspring, 193.
to include only legitimate children, 193.
gifts to class, 190, 191. :
subsequent birth as revocation of will, 47.
term does not usually include grandchildren, step-children, adopted
children or adopted grandchildren, 176.
whether term synonymous with descendants, 174.

CHOSES IN ACTION,

description in wills, 220.

CHRISTIAN SCIENCE,
will of founder, Mrs. Eddy, 1249.

CHURCHES,

bequest to Christian Science churches by founder, 1249.

form of bequest to church, 1204, 1213, 1228, 1239.
bequest to purchase and distribute religious books, 867.
bequest to son on condition he attend a certain church, 905, 906.
devise conditional on religious connection, 907.
devise to bishop for charitable purposes, 879.
devise to children for life, remainder to church, 843.
devise to church to be applied for foreign missions, 872.
devise to church as tenants in common, 721.
will with remainder to church, 1191.
942 INDEX

(References are to Sections.]

CITIZENS,
wills by citizens in foreign countries, 610-649.

CIVIL LAW,
disposal of community property by will, 65.
essentials of nuncupative wills, 23.
statutes governing execution, validity and probate of wills, 558.

CLAIMS,
conditions in will against claims against estate, 291.
provisions in will authorizing compromise, 399.

CLASS,
defined, 190.
designation in wills, 190-194.
duty to avoid violation of rule against perpetuities, 190.
form of devise to class, 733.
gift to class, 736,
gift to class as tenants in common, 1224.
lapse by death of one, 309.
lapse prevented by gift over after gift to class, 312.
persons included in gift, 193.
time of determination of class, 192.

CLASSIFICATION,
testamentary powers, 366.
wills, 20.

CLAUSES,
attestation clause, 447.
forms of particular clauses, 655-1164.

CLERKS,
forms authorizing employment by executors, 1080.

CODICILS,

appointment of executor, 32.

bar of statute of limitations, 520.

brings will to date, 32.

capacity to execute, 76. ;

construction as part of will, 32.

construction with will, 463.

defined, 8, 32.

effect to revoke will, 463.

form of codicil appointing executor or trustee, 1111, 1112.
as to alteration of will by erasure and interlineation, 1164.
bequeathing legacy lapsed by death of legatee, 1151.
commencement clauses, 657.
devising land purchased since execution of will, 1153.
INDEX 943

[References are to Sections.]
CODICILS—Continued.
devising real estate contracted to be purchased after execution
of will, 1152.

made after marriage, 1148, 1149,

making substituted and additional bequests, 1154.

reducing legacy by amount of advances made to legatee, 1155.

reviving will revoked by testator’s marriage and providing for

wife, 1148.

revoking gift, 1230.

revoking wills and bequests, 1157-1162.

substituting child of son who has died, 1156.
form of will with codicil creating implied charge on entire estate, 1200,
gift to person mentioned in body of will, 141.
inclusion in term will, 32.
in form of deed, power of attorney or letter, 32.
necessity of probate, 488.
not operative to revoke, 32.
provisions in will against contest, 290.
republication by codicil, 478.
suggestions concerning making, 128.
supplementary wills, 32.

COERCION,

issue in contest of wills, 530.

COLLECTIONS,
duty of executor to collect assets, 420.

COLLEGES,
forms of devises and bequests, 722.
bequest to University of Virginia, 1256.
provision for endowment of university in will of Washington, 1261.
provision for Leland Stanford University, 1260.

COLORADO,
statutes governing wills, 545.

COLUMBIA,
treaty affecting disposition and transmission of property, 618.

COMMENCEMENT CLAUSES,
forms, 656, 657.

COMMISSIONS,

forms relative to payment of commissions to trustees, 1028.

COMMON FORM,
probate, 494.
044. INDEX

[References are to Sections.]

COMMON LAW,
capacity to make will, 77.
holographic wills, 25.
nuncupative wills, 22.
republication at common law, 475.
rule against perpetuities, 266.
specific devises, 136.

COMMUNITY PROPERTY,
disposal by will, 65, 1211.
form of bequest or devise, 744.

COMPENSATION,
form of provision fixing compensation for executor, 1118.
provision fixing liability of trustees, 1116.
provision in wills for compensation for executors, trustees and guard-
ians, 422.

COMPETENCY,
See Capacity.
attesting witnesses, 448.
time of competency of witnesses to will, 499.

COMPETITION,
form conferring power to abstain from engaging in business, 1037.

COMPLAINT,
See PLeapina.
contest of will, 525.

COMPROMISE AND SETTLEMENT,
form conferring power on executors, 1081.
on trustees to compound debts, 1005.
provisions authorizing compromise of claims, 399,

CONDITIONAL DEVISES AND BEQUESTS,
forms, 890-909,

CONDITIONAL FEES,
creation by will, 235.
defined, 235.

CONDITIONAL LEGACIES,
form, 1232.

CONDITIONAL LIMITATIONS,
in wills, 283.
language creating, 283.
INDEX 945

[References are to Sections.]
CONDITIONAL WILLS,
nature and characteristics, 26.
probate, 501.

CONDITIONS AND RESTRICTIONS,
condition against contest of will, 290.
against alienation, 296, 297.
against bankruptcy or insolvency, 290.
against claims against estate, 291.
conditional limitation, 283,
conditions as to name or other personal characteristics of beneficiary,
294.
as to residence, occupation, education or religion, 293.
as to support and payment of debts, 295.
conditions favoring divorce or separation, 289,
conditions putting beneficiary on his election, 287.
conditions restricting marriage, 288.
death without issue or heirs as condition to gift over, 286.
definitions and methods of creation, 280.
effect on estate when condition fails, 282.
form of clauses imposing in wills, 890-909.
devise on condition of living on land, with vested remainder,
893.
form of words necessary to creation, 280.
gift over on death as sole contingency, 285.
in contingent or conditional wills, 26.
survivorship as a contingency, 284.
void and repugnant conditions, 281.

CONDITIONS PRECEDENT,
defined, 280.
effect on estate when condition fails, 282.
forms of devise on condition precedent, 892.
void and repugnant conditions, 281.

CONDITIONS SUBSEQUENT,
alienation of devise, 296.
defined, 280.
distinguished from testamentary trust, 335.
effect on estate when condition fails, 282.
form of bequest on condition subsequent, 895-899.
to charity, 866.
validity of conditions against contest of wills, 290.

CONFLICTING DESCRIPTIONS,
property devised or bequeathed, 202.

CONFLICT OF LAWS,
See Wuat Law Governs; Laws sy WHiIcH WILLS ARE GovERNED.

descent of property of intestate, 2.
60—Tuomp. WILLs.
946 INDEX

(References are to Sections.]

CONFLICT OF LAWS—Continued.
execution of wills, 40-51.
rule of construction where will executed abroad, 610-649,
rules where death of testator occurs abroad, 610-649.

CONKLING, ROSCOE
will, 1247.

CONNECTICUT,
bequest of life estate with remainder to personal representatives of
life tenant, 809.
form of executory devise, 829.
statutes governing wills, 546.

CONSENT,
form of power to executors to sell real estate with consent of wife,
1059,
husband to will of wife, 81.

‘CONSIDERATION,
ante-nuptial agreements, 6.
contract to make or not make will, 33.

CONSTITUTIONAL LAW,
guaranty of right to make will, 10.

CONSTRUCTION,
See Conriict or Laws; WHat Law Governs.

ascertainment of testator’s intention, 157.

bracketed matter in will showing construction by court, 1199.

charges on specific property for payment of debts and legacies, 320-
327.

codicil and will, 32, 463.

conditions and restrictions, 280-297.

conditions in restriction of marriage, 288.

conflicting and repugnant descriptions in will, 202.

construction of will by umpire, 432.

creation of trust by precatory words, 339.

designation of beneficiaries and shares, 165-195.

essentials of testamentary trust, 336.

false and erroneous descriptions in wills, 203.

forms of interpretation clauses, 1142.

general power of appointment, 376.

gift to same person both in will and codicil, 141.

inaccuracy in description of beneficiary, 167.

incomplete wills, 153.

intention of testator respecting vesting, 251.

language denoting gift to class, 191.
INDEX 947

[References are to Sections.]

CONSTRUCTION—Continued.

language descriptive of property devised or bequeathed, 200-222.

lapse and method of preventing, 305-313.

laws governing, 49.

miscellaneous provisions and recommendations, 430-435.

provisions concerning management and settlement of estate, 390-403.

punctuation and capitalization, 159.

repugnancy in wills, 154.

revocation of wills, 460-470.

substitutional legacies, 142.

technical words, 158.

testamentary powers, 365-382.

testamentary trusts, 335-359,

treaties and conventions, 610-649.

trust implied from context of will, 341.

uncertainty of description, 201.

ungrammatical wills, 157.

vested and contingent estates and interests, 250-258.

vesting of estate under certain words of futurity, 254.

what law governs, 45, 49, 610-649,

will in favor of vesting of estate, 252.

CONSULS,
duties in execution and proof of wills, 610-649.

CONTEST OF WILLS,
burden of proof, 526.
conditions against contest of wills, 290.
contestant not limited to one ground, 524.
effect of failure to contest, 516.
evidence, 533.
foreign wills under laws of particular states and countries, 540-603.
form authorizing executors to resist contest of will, 1056.
form of provisions against contest, 900-902, 1210.
grounds, 524.
invalidity of execution as issue, 528.
issues in general, 527.
of fraud and forgery, 531.
of testamentary incapacity, 529.
jurisdiction of courts, 521.
of federal courts, 522.
limitation of actions, 520.
nature of proceeding to contest, 516.
notice, 515.
parties, 523.
pleadings, 525.
precautionary measures where contest probable, 126.
provision in will of Washington to prevent legal contest, 1261.
948 INDEX

[References are to Sections.]

CONTEST OF WILLS—C ontinued.
right purely statutory, 518.
sufficiency of pleadings, 525.
trial, 532.
under laws of particular states and countries, 540-603.
undue influence as an issue, 530.
various methods, 515.
verdict and decree, 534.
verdict as advisory merely, 534.
when contestant estopped, 519.
who may contest probate of wills, 518.
who may oppose or contest probate, 517.

CONTINGENCY, ,
See Conpitions AND REsTRICTIONS.

on which estates vest, 253.
CONTINGENT ESTATES,

See VESTED AND ConTINGENT EsTATES.
disposition by will, 64.
forms of clauses devising, 844-862.
under testamentary trusts, 353.

CONTINGENT REMAINDERS,
form in will, 1223.
devising to grandchildren, 1223.

CONTINGENT WILLS,

nature and characteristics, 26.

CONTRACTS,
action on breach of contract to make will, 33.
consideration of contract to make or not make will, 33.
form of clause giving executors power to complete contract, 1064.
partial performance of contract to make will, 33.
to make or not make will, 33.
transfer by will of interest under contract to convey or purchase, 60.

CONTROL,
property under will, 367.
under testamentary powers, 381.

CONVENTIONS,
See TREATIES AND CONVENTIONS.
CONVERSION,
form of clause directing conversion, 1133, 1134.
form of direction for equitable conversion, 1215.
general bequest of personal estate in trust to be converted, 934.
provision for equitable division, 1134.
liability of executor, 415.
INDEX 949

[References are to Sections.]
CONVEYANCES,
form of clause confirming conveyances, 746.
property as revocation of will, 469.

CONVICTS,
capacity to dispose of property by will, 82.

COPIES,
record of authenticated copies under laws of particular states and
countries, 540-603.

COPYRIGHTS,
subject of trust, 344,

CORPORATIONS,
beneficiaries under testamentary trust, 352.
capacity to act as trustee under will, 350.
capacity to execute power under will, 369.
capacity to take under will, 44, 97.
certainty of description in will, 185.
description of bonds in wills, 219.
stock in wills, 218.
designations in will as beneficiaries, 185.
devises to corporations to be created, 185.
disposition by will of partially paid-up stock, 56.
form of bequest of bonds to be purchased and held in trust for child,
743,
specific bequests of stock, 663, 664.
instructions in will as to voting shares, 391.
lapse where corporate beneficiary ceases to have existence, 307.
misnomer in designation as beneficiary in will, 166.
necessity of existence when gift vests, 95.
power to collect dividends on shares, 381.
prohibition on power to take under will, 44.
rights as beneficiaries under laws of particular states and countries,
540-603.
whether dividends, capital or income, 345.

CORPSE,

testamentary disposition, 13.

COSTA RICA,

treaty affecting disposition and transmission of property, 619.

COUPONS,
specific bequest, 139.

COURTS,
jurisdiction in probate of wills, 491.
jurisdiction of actions to contest wills, 521,522.

aha
950 INDEX

[References are to Sections.]
COURTS—Continued.
jurisdiction of equity on denial of probate, 491.
probate courts as courts of record, 492.

COUSINS,
designation in will as beneficiaries, 178.
usually means first cousins, 179,

CREDITORS,
designation in will as beneficiaries, 183.
form of legacy, 718.

CREMATION,
form of request to executors, 1120.

CRIMINALS,
capacity to dispose of property by will, —-+

CROPS,
disposition by will, 56.
form of specific devise, 669.
subject of trust, 344.

CROSS LIMITATIONS, :
form of devise to several as tenants in common with cross limitations,

728.

CUMULATIVE LEGACIES,
forms, 678.
nature and characteristics, 141,

CURTESY,
devises intended to destroy right, 102.
none in estates in joint tenancy, 240.
rights under laws of particular states and countries, 540-603.

CUSTODY,
wills prior to probate, 489.
wills under laws of particular states and countries, 540-603.

D.
DATE,

necessity in will, 440.
DAVIS, JEFFERSON
will, 1248.

DEAD BODIES,
property in, 430.
provision for disposition of testator’s body, 430.
INDEX 951

[References are to Sections.]
DEAF AND DUMB PERSONS,
capacity to make will, 85.
under laws of particular states and countries, 540-603.

DEATH,
See Girts Causa Mortts.

agreements as to ownership of joint deposit on death of one depositor,
7.

beneficiary as cause of lapse, 306.

deeds effective at death as method of devolving property, 5.

form providing for termination of trust on death of trustee, 1114.

gifts over on death as sole contingency, 285.

provision in will for death of executors and trustees, 413.

restriction as to time, 286.

sense of impending death as essential to nuncupative will, 22.

survivorship on death of joint tenant, 7.

termination of trust for life’tenant, 358,

without issue or heirs as condition to gift over, 286.

DEBTORS,
designation in will as beneficiaries, 184.
forms of legacies to debtors, 712-715,

DEBTS,
charging specific property with payment, 320-327.
form of bequest of debt owing testator, 747.
instructions in will as to sale of realty to pay, 392.
payment of debts of intestate, 2, 420.
provisions in will for payment, 393.

DECEPTION,
issue in contest of. will, 531.

DECLARATIONS,
form of declaration of domicil, 1119.

DECLARATION OF TRUST,
method of devolution of property on death of owner, 4.

DECREES,
contest of will, 534.
probate of will, 508.

DEEDS,
distinguished from will, 9.
effective at death as method of devolving property of owner, 1, 5.
form of bequest confirming conveyance, 746.
forms conferring power on executors to convey, 1069.
operative as codicils, 32.
952 INDEX

[References are to Sections.]

DEFACEMENT,
revocation of will, 464.

DEFEASIBLE FEE,
form of devise, 831, 833, 834.

DEFINITION,
additional or cumulative legacies, 141,
ademption, 434.
alternative wills, 27.
appurtenant powers, 366.
attest, 446.
bequeath, 8.
bequest, 8.
brothers and sisters, 177.
codicil, 8.
collateral powers, 366.
conditional or contingent wills, 26.
conditions precedent or subsequent, 280.
cousins, 179.
demonstrative legacies, 140.
descendants, 174.
devise, 8.
devisee, 8.
devisor, 8.
effects, 209.
election, 287,
estate, 207.
estate tail, 238.
executory devise, 242.
family, 180.
general devises, 136.
general legacies, 138.
gifts causa mortis, 3.
goods and chattels, 216.
heirs, 169.
holographic wills, 453, 544.
income, 222.
income from trust property, 345.
intestate, 2.
issue, 173.
issue of the body, 173.
joint and mutual wills, 28.
lapsed legacies or devises, 305.
lawful issue, 173.
legacy, 8.
legatee, 8.
limited or conditional fees, 235.
INDEX 953"

[References are to Sections.]
DEFINITIONS—C ontinued.
next of kin, 170.
nuncupative wills, 454,
offspring, 175.
perpetuities, 265.
portion, 205.
probate, 485.
property, 208.
remainders, 241.
representatives, 171.
residuary devises and legacies, 143.
satisfaction of legacies, 434.
securities, 219.
share, 205.
specific devises, 137.
specific legacies, 137.
substitutional legacies, 142.
testament, 8.
testamentary powers, 365.
testamentary trusts, 335.
testator, 8.
vested and contingent interests, 250.
will, 8.

DELAWARE,
statutes governing wills, 547.

DELEGATION,
authority to make will, 31.
discretionary powers by testamentary trustee, 421,
power to name executor, 410, 1104.
testamentary powers, 373.

DELIRIUM,
issue in contest of will, 529.

DELIVERY,
deed on déath of grantor, 5.
essential of trust deed, 4.
gifts causa mortis, 3.
savings bank books as gift causa mortis, 3.

DELUSIONS,

issue of in contest of wills, 529.

DEMONSTRATIVE LEGACIES,
distinguished from specific, 140.
forms, 676, 677.
how satisfied, 140.
nature and characteristics, 140.
954 INDEX

[References are to Sections.]
DENMARK,
treaty affecting disposition and transmission of property, 620.

DEPOSITORY,
safekeeping of will, 131.
wills, 489.
under laws of particular states and countries, 540-603.

DEPOSITS,
bank deposits for beneficiary as trust, 4.
deposits as subjects of trusts, 344.
form of specific bequest of deposit, 666.
gifts, 3.
in name of husband and wife, 7.
whether included in bequest of money, 215.

DESCENDANTS,
defined, 174.
designation in will, 174,
distinction between children and descendants, 175.
does not include next of kin, 174.

DESCENT,
form of devise according to laws of descent, 741.
in cases of void gifts, 435.
intestate defined, 2.
property of intestate, 2.
purpose of will to correct inequalities, 12.
real property, 2.
transmission of property by survivorship, 7.

DESCRIPTION,
See Desicnatinc BENEFICIARIES AND THEIR SHARES.
certainty of designation of beneficiaries, 165.
designating beneficiary by description, 167.
lands in wills, 136.
property devised or bequeathed, 200-222.
real property by name, 212.

DESIGNATION OF BENEFICIARIES AND THEIR SHARES,
brothers and sisters, 177.
charitable corporations or associations, 187.
children, 176.
class in general, 190.
corporations and associations, 185,
cousins, 179,
creditors, 183.
debtors, 184.
descendants, 174.
INDEX 955

[References are to Sections.]

DESIGNATION OF BENEFICIARIES AND THEIR SHARES—Con?'d.

designating by description, 167.

designation by name, 166.

different terms of issue, 173.

educational objects, 188.

family, 180.

gift to more than one person, 168.

heirs and lawful heirs, 169.

husband and wife, 172.

language denoting gift to class, 191.

necessity of certainty, 165.

nephews and nieces, 178.

next of kin, 170.

offspring, 175.

per capita and per stirpes, 195

persons included in gift to class, 193.

relatives, 181.

religious societies and organizations, 189,

representative, legal and personal, 171.

servants and employés, 182.

shares or portions generally, 194.

sufficiency of description, 167.

time of determination of class, 192.

unincorporated societies and assemblages, 186.

DESTROYED WILLS,
See Lost WILLs.

degree of proof required to establish, 505.
procedure to establish, 504.
pleading, 504.

DESTRUCTION,
effect to revoke will, 464.
necessity of witness to destruction of will, 464.

DETERMINABLE FEE,
creation by will, 235.
form, 830, 832, 1195, 1208, 1231.

DEVISEES,
competency as witnesses, 448.
defined, 8.
law governing capacity to take, 44.

DEVISES AND LEGACIES,

See Bequests; Lapse; LEGACIES.

additional or cumulative legacies, 141.
demonstrative legacies, 140.
description of lands in wills, 136.
956 INDEX

[References are to Sections.]

/DEVISES AND LEGACIES—Continued.

designating beneficiaries and their shares, 165-195,

devolution of lapsed devises, 308.

forms of devises of certain kinds of property, 743-788.

forms of entire wills devising entire estate to wife, 1170, 1171.

general devises, 136.

general legacies, 138.

kinds and character generally, 135.

residuary devises and legacies, 143.

ypecific devises, 137.

specific legacies, 139,
@ substitutional legacies, 142.

to same person in both will and codicil, 141.

vested interests, 250.

DEVISOR,
defined, 8.

DEVOLUTION,
executorship on death of appointed executor, 413.
lapsed legacies and devises, 308.
methods of devolution of property on death of owner, 1.

DIGEST,
statutes governing wills in different jurisdictions, 540-603.

DIRECTIONS.
See Provisions ror MANAGEMENT AND SETTLEMENT OF ESTATE.

drawing will not equivalent of will, 9.

DISCLAIMER,
form of disclaimer under will by trustees, 1052, 1053.

DISCRETION,
court in requiring executor’s bond, 416.
donee of power, 372.
exercise of testamentary powers, 365.
form conferring discretionary powers on executors, 1086.
of charitable bequest in discretion of executor, 880, 884.
of clause creating trust with discretion to apply income for bene-
fit of life tenant and family, 948.
wills operative at discretion of another, 31.

DISHONESTY,
to disqualify one to act as executor, 410,

DISINHERITANCE,
causes under civil law, 558.
effect of omission to mention heir, 431.
form of clause disinheriting children, 1124,
INDEX 957

[References are to Sections]
DISINHERITANCE—Continued.
granddaughter, 1129.
laws governing, 48.
provision in will, 431.
under laws of particular states and countries, 540-603,

DISTRIBUTION,
agreements between heirs, 2.
estates of intestates, 2.
power under will, 367.
property on death of intestate, 2.
provision in will for distribution in kind, 402.
where gift void for violation of rule against perpetuities, 273.

DISTRICT OF COLUMBIA,
statutes governing wills, 548,

DIVIDENDS,
form containing direction as to stock or extra cash dividends, 1018.
inclusion in bequest of income, 222.
power to collect, 381.

DIVISION,
See Partition,

DIVORCE,
conditions in will favoring divorce, 289.
effect to revoke will, 468.

~

DOCUMENTS,
incorporation in will by reference, 152.

DOMICIL,
conditions in will as to domicil of beneficiary, 293.
effect of change after executing will, 43.
form of declaration, 1119.
laws by which wills are governed, 40-51.
necessity that will conform to law of domicil, 29.
place of probate, 487.
place where will may be executed, 40.

DONATIONS INTER VIVOS OR CAUSA MORTIS,
under civil law, 558.

DONEE,
powers, 369-374.

DOUBLE WILLS,
probate, 502.
958 ‘INDEX

[References are to Sections.]
DOWER,
devise in lieu equivalent to devise of fee, 231.
devises intended to destroy right, 102.
directions in will to avoid difficulties in setting off, 12.
form of bequest in lieu, 710, 711, 1213, 1224.
laws governing, 48.
none in estates in joint tenancy, 240.
rights under laws of particular states and countries, 540-603.

DRUG FIENDS,
capacity to make will, 87.

DRUNKARDS,
capacity to make will, 87.

DRY TRUSTS,
creation, 343.
form of clause creating, 962.

DUMB ANIMALS,
form of bequest for maintenance, 748.

DURESS,
effect on validity of will, 86.
wills made in favor of physicians, 86.

E

ECCENTRICITIES,
as indicia of unsound mind, 83,
issue in contest of wills, 529,

ECCLESIASTICAL COURTS,
jurisdiction over probate, 485,

EDDY, MARY BAKER G.
will, 1249,

EDUCATION,
See Cotteces; ScHoots.

conditions in will as to education of beneficiary, 293.
form of bequest on condition beneficiary is educated a Roman Cath-
olic, 906.
form of clause empowering trustees to control education of children,
1016.
trust to executors for education of children, 1209,
testamentary trust, 355.
INDEX 959

[References are to Sections.]
EDUCATIONAL INSTITUTIONS,

See CoLteces; ScHooLs,

capacity to take under will, 100.
designation in will as beneficiaries, 188.

EDWIN FORREST HOME,
provision for erection and maintenance, 1250,

EFFECTS,
defined, 209.

ELECTION,
conditions putting beneficiary to his election, 287.
duty of attorney to explain principle to testator, 123.
effect to estop contestant, 519.
form of provision that annuitant may elect to take gross sum, 929.
laws governing, 48.
meaning of doctrine, 287.
provision in will compelling election between gift and rights independent
of will, 287.
under laws of particular states and countries, 540-603.
what law governs, 48.

EMANCIPATION,
form of clause emancipating slaves under will of Jefferson, 1256.
under will of Robert E. Lee, 1257.
under will of Washington, 1261.

EMBEZZLEMENT,
liability of executor, 415.

EMPLOYES,
designation in will as beneficiaries, 182.
forms of bequests to employés, 704.

ENGLAND,

statutes governing wills, 594.

ENTIRETIES,
See Tenancy By ENTIRETIES.

ENTIRE WILLS,
forms, 1170-1233.

EQUITY,

jurisdiction where probate denied, 491,

ERASURES,
effect of erasures in will, 452.
form of codicil governing alteration of will by erasure and interlinea-

tion, 1164.
960 INDEX

[References are to Sections]
ERRONEOUS DESCRIPTIONS,
property devised or bequeathed, 203.

ERRORS OF JUDGMENT,
form of provision exempting executors for errors of judgment, 1115.
liabilities of executors and trustees, 414, 415.

ESTATES BY ENTIRETIES,
disposal by will, 65.

ESTATES CREATED BY WILL,
See Property DevIsEeD or BEQUEATHED.

absolute gifts of personalty, 232.
capacity to take under will, 95.
cestui que trust under testamentary trust, 353.
clauses in wills creating different kinds, 789-843.
conditions and restrictions in wills, 280-297.
defined, 207.
effect of conditional limitation, 283.
effect of void and repugnant conditions in will, 281.
effect where condition fails, 282.
estates for years, 239,
estates in remainder, 241.
estates tail, 238.
executory devises, 242.
fee simple in real estate, 234.
gifts in possession or in futuro, 230.
gifts of a use, 243.
implied creation, 231.
joint tenancy and tenancy in common, 240,
language descriptive in will, 200-222.
life estates in personalty, 233,
in realty, 236.
with power of disposition, 237,
limited or conditional fees, 235.
necessity that they be legal, 230.
rule in Shelley’s case, 244.
in Wild’s case, 245,
subject to rule against perpetuities, 270.
under testamentary powers, 376.

ESTATES FOR YEARS,
creation by will, 239,

ESTATES IN REMAINDER,
creation by will, 241.
INDEX 961

[References are to Sections.]

ESTATES TAIL,
creation by will, 238.
defined, 238.
form of devise, 835.

ESTOPPEL,
acceptance of benefits under will, 519.
when contestant of will estopped, 518.

EVIDENCE,
burden of proof of unsoundness of mind in contest proceedings, 526.
degree of proof required to establish a lost or destroyed will, 505.
expert testimony on competency of testator, 533,
parol to establish contract to make will, 33.
parol to explain repugnancy, 154.
prima facie case in probate of will, 498.
probate of will, 498.
nuncupative wills, 503.
record of probate and proof of will in contest, 533.
revocation of will, 462.
statements or declarations of testator on questions of competency, 533.
testimony of attesting witnesses in probate of will, 498.
weight of testimony of attesting witnesses, 533.

EXCHANGE,
power under will, 367.
right under testamentary power, 380.

EXCLUSION,
form of clause of exclusion, 1125, 1126,

EXECUTION OF WILLS,
alterations and additions, 452.
attestation at request of testator, 449.
attestation by witnesses, 446.
attestation clause, 447.
competency of attesting witnesses, 448.
general requisites, 440.
holographic wills, 453.
invalidity as issue in contest proceedings, 528.
location of signature, 444.
nuncupative wills, 454.
publication, 445.
signature of testator, 442.
signature of testator by another, 443.
signing by witnesses in presence of testator, 450.
testator’s knowledge or understanding of contents, 441.
witnesses signing in preseence of each other, 451.

61—Tuomp, WILLS.
962 INDEX

[References are to Sections.]
EXECUTORS,
appointment by codicil, 32.
appointment in wills covering property in different jurisdictions, 29.
capacity to act as trustees, 350.
discretion in exercise of powers, 372.
form authorizing insurance by executors, 1082.
appointment of executors to serve without bond and settle estate
out of court, 1099,
authorizing sales to executors, 1057.
bequest to executors, 719, 740, 742.
charitable bequest in discretion of executor, 880, 884.
clause authorizing executors to resist contest, 1056.
clause creating trust to executors for lives of wife and sons or to
longest liver with vested remainder, 968.
conditional bequest to son on executor’s approval, 894.
directing consultation with widow of testator, 1088.
directing keeping of records by executors, 1083.
parties to contest of wills, 523.
payments to executors and provisions as to management of estate,
1055-1096.
power to executors to sell real and personal estate, 1058.
proponents of will, 490.
provision fixing compensation, 1118.
provision fixing liability of executor, 1115.”
provisions in will as to appointment, 1097-1118.
request to executors as to cremation, 1120.
statement as to debts, 1055.
will directing retention of realty for stated period and then sell,
1192.
wills appointing executor only, 30.

EXECUTORS, TRUSTEES AND GUARDIANS,
action by less than full number, 418.
appointment in different states, 410.
authority and duties of executors, 420.
of trustees, 421.
bonds of executors, 416.
of trustees, 417.
capacity of persons to act, 410.
compensation, 422.
conflicting relations of executors and trustees, 419.
death, resignation, renunciation, or relinquishment of executors and
trustees, 413.
duty of executor to bury decedent, 420.
duty to exercise judgment and care in management, 414.
effect of death of executor, 413.
liability of executors, 414.
liability of trustees, 415.
INDEX 963

[References are to Sections.]

EXECUTORS, TRUSTEES AND GUARDIANS—Continued.
nomination of different executors for different jurisdictions, 410.
provisions for appointment under will, 410.

of guardian, 412.
of trustees, 411.
title to real property, 420.
waiver of bond by provision in will, 416.
when authority begins, 420.
will for sole purpose of naming executor, 410.

EXECUTORY DEVISES,
, creation, 242.
defined, 242.
disposal by will, 64.
distinguished from remainder, 241.
form, 829, 1195, 1208.
nature and characteristics, 242.

EXEMPTIONS,
See HomestTeap.
disposal of exempt property by will, 62.
trust funds from claims of creditors, 356.

EX MALEFICIO,
trusts, 342.

EXONERATION,
personal property from liability for debts and legacies, 327.

EXPERT WITNESSES,
testimony to competency of testator, 533.

F

FAILING MEMORY,
effect on capacity to make will, 85.

FALSE DESCRIPTIONS,
‘property devised or bequeathed, 203.

FAMILY,
designation in will as beneficiaries, 180.

what included in term, 180.

FAMOUS WILLS,
Audubon, John James, 1240.
Beecher, Henry Ward, 1241.
Benton, Thomas H., 1242.
Blaine, James G., 1243.
964 INDEX

[References are to Sections.]
FAMOUS WILLS—Continued.
Booth, Edwin, 1244.
Brewer, David J., 1245.
Chase, Salmon P., 1246.
Conkling, Roscoe, 1247.
Davis, Jefferson, 1248,
Eddy, Mary Baker G., 1249,
Forrest, Edwin, 1250.
Franklin, Benjamin, 1251.
Greeley, Horace, 1252.
Green, Hetty H. R., 1253.
Harriman, Edward H., 1254,
Houston, Sam, 1255.
Jefferson, Thomas, 1256.
Lee, Robert E., 1257.
McLean, John R., 1262.
Rhodes, Cecil John, 1258.
Sage, Russell, 1259.
Stanford, Jane Lathrop, 1260.
Washington, George, 1261.

FARMING STOCK,
form of bequest, 757, 758.

FEDERAL COURTS,
jurisdiction of will contests, 522.
FEEBLE-MINDED PERSONS,
See Insane Persons.
necessity of proof of knowledge of contents of will, 441.

FEES,
See CoMPENSATION.

provisions in will for compensation of executors, trustees and guard-
ians, 422,

FEE SIMPLE,
creation of estate by devise in lieu of dower, 231.
creation of estate by giving beneficiary power of disposition, 231.
creation of title under will, 234.
forms of devises, 789-843.
entire wills devising, 1170-1233.
will devising property for life with power of disposition of fee,
1194.

FELLOWS,
form of bequest of rights, 759.

FISHERMEN,
wills under laws of particular states and countries, 540-603.
INDEX 965

[References are to Sections.]

FIXTURES,
form of devise, 760.

FLATTERY,
issue on question of undue influence in execution of will, 530.

FLORIDA,
statutes governing wills, 549,

FORECLOSURE,
form conferring power on trustees to foreclose mortgage, 1008.

FOREIGN CHARITIES,
form of bequest, 889.

FOREIGN EXECUTORS,

appointment of executors in different states, 410.

FOREIGN LANGUAGE,

' use in formulation of will, 155.

FOREIGN MISSIONS,
form of devise for benefit, 872.

FOREIGN WILLS,
See TREATIES AND CoNVENTIONS.

forms of wills made in two countries, 1217.

probate, 506.

probate under laws of particular states and countries, 540-603.
uniform foreign probate law, 507.

validity in civil law jurisdictions, 558.

FORGIVING DEBTS,
form, 714.

FORMALITIES,
execution of wills under laws of particular states and countries, 540-

603.

FORM AND LANGUAGE,
alterations and additions, 156.
description of property devised or bequeathed, 200-222.
expressions to charge real estate with payment of debts and legacies,
321.
generally of the form of the will, 150.
grammatical requirements, 157.
how requirement of writing satisfied, 150.
incomplete and uncertain instruments, 153.
incorporation by reference, 152.
966 INDEX

[References are to Sections.]

FORM AND LANGUAGE—Continued.
language in which will may be written, 155.
material on which to be written, 150.
necessity of knowledge of contents by testator of will written in for-
eign language, 441.
necessity of written will, 150.
partly printed and partly written, 150.
punctuation and capitalization, 159.
repugnancy, 154.
separate instruments and separate sheets of paper, 151.
signature on separate sheet of paper, 151.
technical words, 158.
use of foreign language, 155.
words creating testamentary trust, 338.

FORMS,
attestation clause, 447.
creation of testamentary powers, 368.
formal requisites of execution of wills, 440-454.
words creating testamentary trust, 338.

FORMS OF FAMOUS WILLS,
See Famous WILLs.

FORMS OF ENTIRE WILLS,

agreement to give effect to intended will not executed, 1180.

assignment by way of sale of a legacy, 1181.

brief will giving all testator’s property to wife absolutely, 1170.

determinable fee and executory devise, 1195. *

devise and bequest of entire estate to wife, 1171.

devise of residue to children in trust; share of child dying before tes-
tatrix to go to children surviving at death of testatrix, 1220.

directions for sale of real estate by executors—estate in children vest-
ing at time of distribution, 1193.

income, rents and profits for life to wife, fee to children, 1206.

joint and mutual will, 1184.

joint will, 1185.

joint will by tenarits in common, 1183.

short holographic will, 1188.

short will, 1186. :

vested remainder—defeasible fee in remainder—executory devise, 1208. |

will authorizing executors to carry on business of testator’s firm during
life of his wife and daughter, giving annuity to wife, income to chil-
dren, and dividing property on death of wife and daughter, 1178.

will—bequests to children of brothers per capita, 1207.

will by husband—various charitable bequests—later will by wife, exer-
cising power of appointment given by husband’s will, 1233.

will—charge of support for one living in family, 1205.
INDEX 967

[References are to Sections.]
FORMS OF ENTIRE WILLS—Continued.

will—conditional legacies—residue to Smithsonian Institution for scien-
tific publications, 1232.

will—determinable fee—legacies charged—directions as to carrying on
insane hospital, 1231.

will—devise to widow for life, remainder to sons on condition prece-
dent, 1221.

will devising property for life with power of disposition of fee, 1194.

will devising real estate to testator’s wife for life, and after her death
upon trusts for his children, 1172.

will—directions for equitable conversion, 1215.

will—directions for sale of real estate and distribution of proceeds, 12114.

will—directions to executors to retain real estate two years, then to scl
it, 1192.

will disposing of several plantations—power to sell and reinvest, 1153.

will—entire estate community property—all given to wife with power
to sell—precatory trust for support of testator’s mother and sister,
1211,

will—fee simple to wife, 1189.

* -will—gift of use, 1196.

will—gifts to a class as tenants in common—codicil, 1224.

will—gift to wife in lieu of dower—provision for grandson conditioned
on character—bequests to charity, 1213, : /

will giving immediate legacy to wife and residue of property to trustees
in trust for wife for life, with remainder to children, 1174.

will giving life estate with power to sell, 1203.

will giving residuary estate to trustees with life interest to son and I:.'s
wife, afterward income to son’s children and division of capital o.1
death of longest surviving child living at testator’s decease, 1176.

will giving whole of testator’s real and personal property to his brother
with substitution of his children or issue, 1173.

will, under which, on death of nephew before testatrix, his legacy lapset
and was distributed as intestate property, 1202.

will creating trust for son during life, though he survives his daugh-
ter, and that grandchildren born after testator’s death have no right
to share in legacy to grandchild dying before reaching age of twenty-
five, 1216.

will in form of a letter, 1187.

will leaving property to mother and husband of testatrix referring to
children sufficiently to preclude their sharing in estate, 1219.

will leaving residue to prison association, 1229.

will—life estate given to wife and daughter; fee by implication to
children of daughter, 1222.

will—life estate to children—contingent remainder in residue to grand-
children, 1223.

will—life estate to wife and daughter, remainder to go according to
intestate laws, 1204.
968 INDEX

[References are to Sections.]

FORMS OF ENTIRE WILLS—Continued.

will—life estate to wife—specific legacies to children, 1212.

will limiting time of sale of real estate, 1182,

will made in two countries—bequests to citizens of foreign countries,
and disposing of property in foreign land, 1217.

will making immediate bequest to wife with other bequests and placing
remainder of property in trust for benefit of wife and children, 1175.

will not in technical legal terms, but explicit, giving life estate to
children, remainder to grandchildren, living at death of testator, 1190.

will of a married woman in exercise of a power of appointment in her
marriage settlement, 1179.

will of widow devising and bequeathing her estate to trustees in trust
for minor son, with ultimate trust to sisters, 1177.

will—proceeds of real estate subsequently sold by testator passing as
personalty, 1197.

will—property in several states, 1218.

will—specific legacies—provisions as to contest of husband’s will, 1210.

will—trust for granddaughter—remainder to charities—codicil revoking
gift, 1230.

will—trust for son, 1227.

‘will—trust for son—income after death to his widow—trust for daugh-
ter, 1226.

-will—trust for wife and daughter—remainder to heirs on failure of
issue, 1201.

will—trusts—provisions for advance and payment of claims—codicil,
1225,

will—trust to executors for support and education of children—fee in
executors, 1209,

will with alterations and codicil—devise to nearest blood relatives, 1228.

- will with codicil, which creates an implied charge on entire estate, 1200.

will with remainder to church, 1191.

will—words in brackets show construction placed on will by court, 1199,

FORMS OF PARTICULAR CLAUSES,

Introductory.
generally, 655.

Commencement Clauses.
commencement clauses of will, 656.
commencement of codicil, 657.

Specific Legacies and Devises.
specific bequests, 658.
bequest of bonds, 659.
bequest of cash on hands to wife, 660.
bequest to wife of personal and household effects, 661.
specific legacy in proceeds of bonds, 662.
specific legacy of stock, 663.
specific legacy, gift of stock in trust for grandson, 664.
bequest of business to son, 665.
INDEX 969

[References are to Sections.]

FORMS OF PARTICULAR CLAUSES—Continued.
confirming daughter’s right to a deposit in her name in a savings bank,
666.
devise of lot, 667.
devise of dwelling house to wife for life, with remainder to sons, 668.
devise of farm with crops, live stock, implements, etc., 669.
General Legacies and Devises.
pecuniary legacies, 670.
bequest to wife for immediate use, 671.
legacies to wife—one payable immediately, 672.
legacy to wife to be paid in instalments, 673.
general gifts of estate in shares, 674.
general devise, 675.
Demonstrative, Cumulative and Substitutional Gifts.
demonstrative legacies, 676.
demonstrative legacy with proviso for ademption, 677.
cumulative legacies, 678.
substitutional legacy, 679.
Legacies Charged.
legacy charged on estate, 68.
legacy charged on realty, 681.
legacies charged upon land, 682.
charge to secure payment of legacies, 683.
charge of legacies, 684.
legacy charged on specific real estate, 685,
charge of support for son, 686.
Residuary Legacies and Devises.
residue of personal estate, 687.
residuary clause, 688.
residue of personalty to wife, 689.
residue of personalty to children as a class with provision against lapse.
690.
residue of personalty to children with substitution of issue, 691.
residuary bequest per capita, 692.
residuary legacy to daughters, 693.
legacy of residue of personalty to several in equal shares, 694.
advances to a son brought into hotchpot in distribution of residue, 695.
residue of realty and personalty to one, 696.
residuary devise and bequest specifying property, which gives residu-
ary legatee no right to lapsed legacies, 697.
residue of realty and personalty to children and issue of deceased chil-
dren, 698.
residue of real and personal estate to trustees, 699.
residue of real estate to son for life with remainder to trustee, 700.
residue according to law—no power of sale, 701.
bequest of share in residue for life, 702.
allotment of real estate to one residuary legatee, 703.
970 INDEX

[References are to Sections.]

FORMS OF PARTICULAR CLAUSES—Continued.
Bequests and Devises to Certain Kinds of Beneficiaries.

gifts to servants and employés, 704.

bequest to several persons, 705.

afterborn -children, 706.

legacy to adopted child, 707.

gifts to absent legatees, 708.

legacy to one whose whereabouts are unknown, 709.

provisions for wife in lieu of dower, 710, 711.

legacies to debtors, 712.

releasing debts to debtor, 713.

forgiving debts, 714.

release to a debtor of all debts, 715.

release of mortgage debt, 716.

release of son from payment of interest on debts, 717.

legacy to creditor, 718.

bequest to executors, 719.

legacy to a charity, 720.

devise to churches as tenants in common, 721.

devise and bequest to a college, 722.

bequest to namesakes, 723.

devise to wife for life then to son in fee, 724.

devise to children with substitution of issue, 725.

devise to trustees upon trust to permit unmarried to reside, 726.

devise to testator’s sons with gifts over if they die preceding testator,
727,

devise to several as tenants in common, with cross limitation, 728.

legacy to one or to his children by substitution, 729.

legacy to two sisters or the survivor, 730.

legacy to children to equalize share, 731.

bequest per stirpes, granting each heir of L. A. a full share, 732,

devise to a class, heirs of the body, 733.

devise and bequest per capita, 734.

devise per capita, 735:

gift to class, 736.

gift per capita, 737.

bequest per stirpes, 738.

gift to children upon death of the wife, 739.

bequest to go to personal representatives (executors or administrators),
740.

estate given according to laws of descent, 741.

legacies to executors and trustees, 742,

Bequests and Devises of Certain Kinds of Property.

bonds to be purchased and held in trust for children at twenty-one or
marriage, 743.

bequests or devises of community property and declarations as to such,

744,
INDEX 971

[References are to Sections.]

FORMS OF PARTICULAR CLAUSES—Continued.

Provision as to wife’s separate property, 745.

confirming conveyances, 746.

debt owing the testator, 747.

dumb animals, 748.

furniture, 749.

furniture to daughters, 750.

furniture and personal effects to daughters, 751.

furniture of her bedroom and sitting-room to daughter, 752.

leasehold house with furniture, 753.

power of sale of furniture and effects bequeathed, 754.

furniture to wife during her widowhood, afterward to children, 755.

declaration dispensing with inventory of furniture bequeathed, 756.

farming stock, 757.

plantation tools and stock, 758.

rights of fellow or patron, 759.

devise of fixtures, 760.

heirlooms, 761.

heirlooms and keepsakes, 762.

insurance policy, 763.

jewelry, 764.

bequest of personal property, 765.

keepsakes or mementos, 766.

letters and manuscripts, 767.

manuscripts to literary executor, 768.

private letters and papers, 769.

memorials, 770.

monument, 771.

cemetery lot, 772.

bequest to erect and keep in repair monument, 773.

portraits, 774.

bequest of income from stock for life, 775.

property of others in testator’s possession, 776.

share in partnership to a son under a power in the partnership articles,
777."

direction as to taxes, 778.

devise of mortgaged property, 779,

devise subject to mortgage not to be paid out of personalty, 780.

devise of buildings to son subject to lease and mortgage, 781.

direction that incumbered property shall bear the burden of the in-
cumbrance, 782.

devise free from mortgage debt, 783.

residence as home for testator’s family, 784.

gift over after invalid gift, 785.

invalid gifts not to defeat will, 786.

assignment of book debts, 787.

assignment of business and good will by parent to son, 788.
972 INDEX

[References are to Sections.]

FORMS OF PARTICULAR.CLAUSES—C ontinued.
Creation of Different Kinds of Estates.

devise of fee simple—Indiana, 789.

devise to wife in fee—Iowa, 790.

fee simple—Pennsylvania, 791.

devise to wife in fee making her an executor, but not creating a trust,
792,

devise in fee, 793.

life estate—Pennsylvania, 794.

life estate to wife—Maine, 795,

devise of live estate—IIlinois, 796.

life estate in realty and personalty—Pennsylvania, 797.

life estate to husband—lIndiana, 798

devise to wife for life—Michigan, 799.

life estate—Pennsylvania, 800.

bequest by wife for maintenance of husband—Massachusetts, 801.

life estate in personalty—Mississippi, 802.

bequest of money for life—New York, 803.

life estate—Mississippi, 804.

bequest of life estate in income of personalty—Pennsylvania, 805.

estate for life with power to lease, 806.

devise to wife with power to convey a fee simple title, 807.

gift for life with right to use—Illinois, 808,

bequest of life estate with remainder to personal representative of life
tenant—Connecticut, 809.

devise to wife for life with power of sale, and condition against re-
marriage—Maine, 810.

life estate to wife and vested remainder in children—lIIlinois, 811.

devise for life with remainder over—Missouri; North Carolina, 812.

bequest of personal property for life with remainder over—Indiana, 813.

devise for a term and for life—Massachusetts, 814.

life-estate with power of sale—Maine, 815.

estate for life with power to convey the fee—Illinois, 816.

life estate with power of disposition by will—Tennessee, 817.

life estate with power of disposition, remainder to children—Iowa, 818.

life estate with power of disposition, remainder to children—lIowa, 819.

bequest for life with power of disposal—Maine, 820.

devise and bequest for life to wife with power to sell and reinvest,
remainder to children—Georgia, 821.

life estate with power of disposal—Massachusetts, 822.

life estate with power of disposal—New Hampshire, 823.

life estate with power of disposal of fee—North Carolina, 824.

devise for life with power to convey fee—Massachusetts, 825.

devise to wife for life with limited power of disposal—Michigan, 826.

devise to wife for life or so long as she remains a widow—Penn-
sylvania, 827.

estate for life or widowhood with power of disposal—Georgia, 828.
INDEX 973

[References are to Sections.]

FORMS OF PARTICULAR CLAUSES—C€ontinued.

executory devise—Connecticut, 829.

determinable fee—Ilinois, 830.

defeasible fee—Illinois, 831.

base or determinable fee—lIllinois, 832.

defeasible fee—Missouri, 833.

determinable fee—North Carolina, 834.

devise of estate tail—Pennsylvania, 835.

devise of real estate to two with power of sale after five years and
trust in proceeds of sale for one, 836.

devise of house and contents and land therewith to wife for life then
to son, 837.

devise to grandsons, providing for reversion in case of death without
issue—Mississippi, 838.

life estates to children, contingent remainder to grandchildren—Mary-
land, 839,

bequest for sole and separate use of daughter, 840.

estate for years, remainder vested in granchildren—New York, 841.

income to wife, estate vesting in children at her death, to be distrib-
uted when youngest comes of age—Iowa, 842.

devise to son for life, remainder to church, also of another remainder
to church upon definite failure of issue to son—Arkansas, 843.

Provision as to Time of Vesting Contingent Estates.

legacy to vest when legatee is twenty-one, 844.

legacy to vest on marriage, 845.

vested remainder, 846.

remainder vesting at death of life tenant, 847.

bequest to son when he attains age of twenty-one with maintenance
meanwhile, 848.

remainder vesting at testator’s death, enjoyment ‘postponed, 849.

remainder to children jointly, vesting on testator’s death, 850.

devise of fee to vest when son reaches majority, 851.

legacy to son to vest at twenty-five, interest in the meantime to be ap-
plied for maintenance, with power to apply principal for his ad-
vancement, 852. ,

legacies to nephew and niece to be paid at twenty-one or on marriage,
853.

legacies to several children to be paid at twenty-one or on marriage, 854.

remainder vesting at testator’s death, 855.

legacies in trust to several with restraint on anticipation by female
legatees during coverture, 856.

legacy in trust for the family of a son who is or may become bank-
rupt, 857.

fee with remainder contingent on death without disposal or without
issue, 858.

devise to son for life with contingent remainder to lawful heirs (not
within rule in Shelley’s Case), 859.
974 INDEX

[References are to Sections.]
FORMS OF PARTICULAR CLAUSES—Continued.
estate for life with remainder over, vested if children exist when
testator dies, contingent if they do not, 860.
absolute bequest in trust for daughters, limited over on marriage and
birth of issue, 861.
bequest to daughter on termination of marriage, 862.
Gifts to Charities.
bequest to charity, beneficiaries to be selected by life tenant, 863:
bequest for charitable use, 864.
devise for charitable use, 865.
bequest to charity on condition subsequent, 866.
charitable bequest to purchase and distribute religious books, 867.
charitable gift for use of most deserving poor of a city, 868,
bequest to poor of a foreign city, 869.
bequest to worthy poor of a city, 870.
bequest for benefit of poor, 871.
devise to church to be applied to foreign missions, 872.
gift to home for aged women, 873.
bequest to endow bed in hospital, 874.
bequest for charitable purposes, 875.
remainder to charity, 876.
bequest to town for school purposes, 877.
trust for suppressing sale of intoxicating liquors, 878.
devise to charity or to bishop individually upon failure, 879,
charitable bequest in discretion of executor, 880.
bequest to Salvation Army, valid on incorporation, 881.
bequest to bishop for charity, 882.
alternate charities, 883.
bequest to charities in discretion of executors, 884.
bequest not to exclude certain classes of books from library, 885.
charitable objects, subscription to, 886. _
bequest absolutely with request to use for charities, 887.
gift to charitable use in foreign country—a municipal corporation as
trustee, 888.
bequest to foreign charities, 889.
Conditions and Restrictions.
conditional devise, 890.
life estate on condition, 891.
devise on condition precedent, 892.
devise on condition of living on land, with vested remainder, 893.
conditional bequest to son on executor’s approval, 894.
bequest on condition subsequent, 895.
condition against marrying certain persons, 896.
conditions as to marriage, 897.
gift to polygamous wife with condition against polygamous remar-
riage, 898. ;
bequest on condition of husband’s death, 809.
INDEX 975

[References are to Sections.]
FORMS OF PARTICULAR CLAUSES—Continued.

provision against contest, 900.
condition prohibiting contest of will, 901.
condition as to disputing will, 902.
legacy conditional on reformation, 903.
bequest on condition of reconciliation, 904.
bequest to son on condition he attend a certain church, 905.
bequest on condition beneficiary is educated a Roman Catholic, 906.
devise conditional on religious connection, 907.
condition to pay annuity, life estate inuring to second wife, 908.
conditional devise for support, 909.
Provisions as to Lapse, Abatement and Priority of Legacies.
lapsed legacies, 910.
Provision as to lapse of legacies, 911.
general provision against lapse, 912.
provision for lapsed legacy to go to issue or to brothers and sisters,
but excluding issue of deceased brothers and sisters, 913.
devise with provision against lapse, 914.
legacy with provision against lapsing in case of legatee leaving is-
sue, 915.
ademption of specific legacies, etc., 916.
gift as satisfaction of legacy, 917.
abatement of legacies, 918.
abatement of particular legacies, 919.
certain legacies to abate in case of deficiency, 920.
priority of legacies, 921.
priority of one legacy, 922.
priority of several legacies, 923.
direction as to time at which legacies are to be payable, 924.
Annuities.
bequest of annuity, 925.
annuity to wife to be paid in preference to all other bequests, 926.
annuity to husband and wife and the survivor of them, 927.
annuity charged on realty, 928. \
proviso that annuitant may elect to take gross sum, 929.
annuity to cease on alienation, 930.
power to purchase annuities, 931.
annuity during term of partnership, 932.
advice to purchase annuity, 933.
Trusts.
general bequest of personal estate in trust to be converted, 934.
real estate devised in trustees for sale, 935.
securities belonging to testator to become trust funds with power to
change, 936.
life interest in trust estate to widow charged with maintenance of
children, 937.
trust for wife during her widowhood and children after her death,
976 INDEX

[References are to Sections.]

FORMS OF PARTICULAR CLAUSES—Continued.

with request as to maintenance of children during her life, 938.

trust providing for income of moiety to wife for life, other moiety and
principal to children, 939.

trust for wife to terminate at age of seventy-five or on marriage, 940,

residue in trust for children to be conveyed after twenty-one years, 941.

trust for child during minority, 942.

in trust for grandson with contingent remainder, 943.

trust to pay income of fund to three and the survivor, 944.

trust in income to several for life, with trust of capital for survivor,
945.

trust for daughters in proceeds of real estate, 946,

life interest in trust estate determinable on bankruptcy, attempt to
alienate, 947.

trust with discretion to apply income for benefit of life tenant and his
family, 948.

reason for creating trust for sons, 949.

trust for son for life occupancy, use, rents and profits of real estate
under control of trustees, 950.

trust for testator’s children to be applied as widow shall appoint, 951.

trust for children and issue of deceased children, 952.

trust for children unequally, 953.

trust for granddaughter, 954.

gift to trustees for investment and pay annuity to son for life or to
children, upon his bankruptcy or attempted alienation, 955.

trusts for wife and children of son -after his death, 956.

trust for children and issue of deceased children at twenty-one or
marriage, 957.

bequest in trust for children of sister at twenty-one or marriage, 958.

trust for children at twenty-five with substitution of grandchildren of
children dead at testator’s death, 959.

trust for children without devise in terms to trustee to terminate as
children reach age of twenty-five in discretion of trustees, 960.

trust in personal property for life for afflicted daughter corpus after
her death to her heirs, 961.

devise and bequest to children in dry trust for their issue, 962.

trust for issue of grandchildren, 963.

trust for brother for life, afterward to nephews and nieces in shares
for their lives and afterward for their children, 964.

residuary trust to terminate at death of sons and their wives, 965.

trust for three nieces for life, then for their children and issue at
twenty-five, etc., with cross limitations, 966.

legacy in trust for housekeeper, becoming part of her estate on her
death, 967.

trust to executors for lives of wife and son or longest liver with vested
remainder, 968.

trust of an annuity for a spendthrift and his wife and children, 969.
INDEX 977

[References are to Sections.J

FORMS OF PARTICULAR CLAUSES—Continued.

spendthrift trust, 970.

trust for improvident son, 971.

trust for son for life, to cease on his alienation of his interest, 972.

discretionary trust of income after alienation, 973.

income to be applied after alienation as if son were dead, 974.

trust for son for life determinable on bankruptcy, 975.

general proviso that life interest shall cease on bannruptcy or aliena-
tion, 976.

trust income placed beyond reach of creditors, trust to cease on ob-
taining of judgment, 977.

bequest to trustee to appropriate as he deems best, 978.

precatory words which do not create a trust, 979.

absolute gift, not a trust, 980.

request to daughter to confirm invalid devise, 981.

general power of appointment of cestui que trust, 982.

general form of ultimate trust, 983.

ultimate trust for person who would take under statutes of descent, 984.

trust for testator’s brothers and sisters, and their issue by right of
representation, 985.

trust for preachers, no trustee appointed, 986.

short will leaving property to trustees and referring to deed of trust,
987.

discretion in terminating trust, 988.

power of appointment after termination of trust estate, 989.

devise to daughter with power of appointment, 990.

request to daughter to keep open a certain house during a certain period
of the year, 991.

bequest for the “comfortable support” of relatives, 992.

appointment under trusts, 993.

refusal to execute power of appointment, 994.

trust deed or declaration of trust, 995.

Powers of Trustees.

power to trustees to sell trust property, with advice as to its manage-
ment, 996.

power to trustees to sell real and personal estate, 997.

power to hold and invest proceeds of real and personal estate, 998.

power to lay out street, etc., 999.

power to postpone the sale and conversion of real and personal es-
tate, 1000.

recommendation to trustees that real estate remain unsold, 1001.

trust with power to sell and reinvest, but not to carry on, mercantile
business, 1002.

power to retain investments, 1003.

direction as to wasting investments, 1004.

power to compound debts, etc., 1005.

62—THomp. WILLS.
978

INDEX

[References are to Sections.]

FORMS OF PARTICULAR CLAUSES—Continued.

appreciation or depreciation of bonds, 1006.

power to continue mortgages, 1007.

foreclosure of mortgages, 1008.

power for trustees to mortgage trust property, 1009.

general direction as to consent to sales and investments, 1010.

general direction for investment of trust moneys, 1011.

power to make investments within a limited range, 1012.

power to vary investments, 1013.

investments and reinvestments, 1014.

power to apply to maintenance of child in trustee’s discretion, 1015.

powers as to advancement, maintenance, and education of children,
1016.

powers to provide for maintenance, etc., out of capital, 1017.

directions as to stock or extra cash dividends, 1018.

power to trustees to make advancements, 1019.

power for trustees to make advances to son out of trust funds, 1020.

power to rebuild, 1021.

erecting buildings and making improvements, 1022.

general power to accumulate surplus income, 1023.

power to lease for twenty-one years, 1024.

power to lease furnished house until sold, 1025.

authority to trustees to permit testator’s widow to reside in his man-
sion house, 1026.

auditing and examining accounts, 1027.

payment of commissions, 1028.

power to partition among cestui que trust, 1029.

power to allot specific property in satisfaction of legacies, 1030.

proviso that questions arising under the will shall be settled by the
trustees, 1031.

power of trustees to determine matters in doubt, 1032.

declaration that decision of majority of trustees shall be binding, 1033.

power to trustees to carry on testator’s business, 1034.

power to dispose of business, 1035.

disposition of profits from business, 1036.

power to abstain from engaging in business, 1037.

power to continue partnership business, 1038.

power to purchase shares of partners, 1039.

power to trustees to leave capital in partnership business on loan, 1040.

power for trustee to purchase any part of trust estate, 1041.

power for son, who is trustee, to purchase part of the trust estate on
a valuation, 1042. ;

power for testator’s sons, who are trustees, to purchase, 1043.

power to mortgage, 1044.

request by testator that the trustees for the time being under this will
shall employ a certain attorney, 1045.

trustee who is an attorney at law to charge for business, 1046.
INDEX 979

[References are to Sections.]

FORMS OF PARTICULAR CLAUSES—Continued.

trustee’s receipt clause, 1047.

trustee’s indemnity clause, 1048.

trustees to hold purchased lands upon trusts before declared, 1049.

request to trustees to collect mortgage and purchase land, 1050.

request to trustees to change investment, 1051.

disclaimer of trust under will by one trustee, 1052.

disclaimer of the trusts of a will by a trustee who has renounced pro-
bate thereof, 1053.

direction to trustees under a will to sell stock and invest proceeds of
sale in mortgages, 1054. ,

Powers of Executors and Provision as to Management of Estate.

statement as to debts, 1055,

expenses of contest of will, 1056.

power of sale to executors, 1057.

power to executors to sell real and personal estate, 1058.

power to executors to sell real estate with consent of wife, 1059.

power to executors to mortgage and sell real estate, 1060.

directions to executors to sell property, reinvest and pay income, 1061.

power to borrow money, 1062.

power to sign commercial paper, 1063.

power to complete contracts, 1064.

voting shares, 1065.

partition by executors, 1066.

authority to executors to lease, 1067.

power to pay infant’s legacy to parent or guardian, 1068.

executors to have power to convey—title vesting in them by implica-
tion, 1069.

bequest to wife and children distributely—power to executors to sell,
1070.

direction for sale of property when youngest child is twenty-one or
all children are married, 1071.

carrying on partnership, 1072.

incorporation of business, 1073.

power to executors to wind up testator’s partnership business, 1074.

power to executors to continue testator’s business, 1075.

power to executors to make arrangements for admission of testator’s
son into his partnership business, 1076.

power to executors to continue loan, 1077.

power to executors to continue loan to son, 1078.

employment of attorneys, etc., by executor, 1079.

employment of clerks, etc.,-by executors, 1080.

power to executors to compromise and arbitrate, 1081.

insurance by executors, 1082.

keeping records by executors, 1083.

inventory, filing of, 1084.

powers of attorney by executors or trustees, 1085.
980 INDEX

[References are to Sections.]

FORMS OF PARTICULAR CLAUSES—Continued.
discretionary powers of executors, 1086.
executor’s receipt, 1087.
request to consult with wife, 1088.
request to an executor in nature of a precatory trust, 1089.
request to literary executor, 1090.
request to destroy letters, 1091.
interest upon legacies, 1092.
apportionment of interest, 1093.
time of payment of legacies, 1094.
payment of insurance, 1095.
capitalization of income, 1096.

Provisions as to Appointment of Executors and Trustees and Guardians.

appointment of executors, 1097. ;

appointment of executor without security, 1098.

appointment of executors to serve without bond and settle estate out
of court, 1099.

substitutive appointment of executors and trustees, 1100.

appointment of new executors and trustees, 1101.

appointment of literary executor, 1102.

appointment of executor as to particular property, 1103.

delegation of power to appoint executor, 1104.

power of appointment of executor left to judge, 1105.

appointment of guardian, 1106.

appointment of an agent to manage and wind up testator’s partnership
business, 1107.

trustees, appointment of, 1108.

filling vacancies in board of trustees, 1109.

appointment of new trustees, 1110.

codicil appointing an executor and trustee in place of an executor and
trustee who has died, 1111.

codicil appointing an executor and trustee in place of a son named in
will who has died, and revocation of bequest to son, 1112.

appointment of a new trustee as provided for by will, 1113.

termination of trust on death, etc, of trustee, 1114.

liability of executors and trustees, 1115.

compensation of trustees, 1116.

provisions for services to estate, 1117.

compensation of executors, 1118.

Miscellaneous Provisions.

declaration of domicil, 1119.

request to executors as to cremation, 1120.

naming children, 1121.

excluding children, 1122.

inequalities as to children or their issue, 1123.

disinheriting children, 1124.
INDEX 981

[References are to Sections.]
FORMS OF PARTICULAR CLAUSES—Continued.

exclusion of certain persons, 1125.

exclusion of adopted children, 1126.

devise of farm to son’s wife and children as joint tenants, and exclu-
sion of son from inheritance, 1127.

omission of one son, 1128.

disinheriting granddaughter, 1129,

exclusion of son from share in residuary estate, 1130.

antenuptial agreement recognized, 1131.

direction as to division of property, 1132.

directions for conversion, 1133.

equitable conversion, 1134.

advancements to be treated as gifts, 1135.

declaration that sums advanced shall be regarded as gifts, 1136.

advancements to children to be pro tanto in -satisfaction of their
shares, 1137.

advancements in testator’s lifetime to be brought into account, 1138.

advancement not to be in satisfaction of portions, 1139.

taxes, 1140.

inheritance taxes, 1141.

interpretation clauses, 1142. /

incorporations of proper in will by reference, 1143.

Attestation and Testimonium Clauses.

attestation clauses, 1144.
testimonium clauses, 1145.
alteration clause, 1146.
alterations and additions, 1147.

Codicils.

codicil reviving will revoked by testator’s marriage and providing
for wife, 1148. :

codicil made after marriage, 1149.

codicil: providing for birth of child, 1150.

codicil bequeathing legacy lapsed by legatee’s death to her children
living at testator’s decease, payable at age of twenty-one years, 1151.

codicil devising real estate contracted to be purchased subsequently to
execution of will, 1152.

codicil devising land purchased since execution of will, 1153.

codicil making substituted and additional bequests, 1154.

codicil reducing legacy by amount of advances made to legatee, 1155.

codicil substituting children of son who has died, 1156.

codicil revoking bequest, 1157.

codicil revoking a will in the possession of a third party, 1158.

codicil revoking an item, 1159.

codicil revoking a former will previously revoked, 1160.

codicil directing which of two prior wills shall take effect, 1161.

codicil revoking bequests to trustee and appointment of executors, and
982 INDEX

[References are to Sections.]
FORMS OF PARTICULAR CLAUSES—Continued.
substituting trust company as trustee and executor, 1162.
codicil appointing two new trustees in the place of a deceased and a
retiring trustee, 1163.
alteration of will by erasure and interlineation, 1164.

FORREST, EDWIN
will, 1250,

FRANCE,
mystic wills, 24.
treaty affecting disposition auu trausuussion of property, 621,

FRANKLIN, BENJAMIN,
will, 1251.

FRAUD,
deception in execution of will, 531.
effect of fraud in obtaining particular legacies, 531.
ground for contest of will, 524.
issue in contest of will, 531.
jurisdiction of equity in case of fraud in probate, 491.
precaution against by draftsman, 125.

FUNERAL EXPENSES,
duty. of executor to bury decedent, 420.
provisions for payment in will, 393.

FURNITURE,
description in wills, 217.
forms of bequest, 749-755.
what included in term, 217.

FUTURE ESTATES, :
disposition by will, 64.

GENERAL DEVISES,
fee simple title, 136.
forms, 670-675.
nature and characteristics, 136.

GENERAL LEGACIES,
how satisfied, 138.
forms, 670-675.
money, 139.
nature and characteristics, 138.
INDEX 983

[References are to Sections.]
GEORGIA,
form of devise for life with power to sell and reinvest, remainder to
children, 821.
devise of estate for life or widowhood with power of dis-
posal, 828.
statutes governing wills, 550.

GERMAN EMPIRE,
treaty affecting disposition and transmission of property, 622.

GIFTS,
See Bequests; Lrcactes.

absolute gifts of personalty in wills, 232.
application of rule against perpetuities to charitable gifts, 271.
causa mortis as method of devolving property, 1.
causa mortis defined, 3.
distinguished from nuncupative wills, 3.
causa mortis not favored, 3.
conditions as to residence, occupation, education or religion of donee,
293.
conditions in wills against claims against estate, 291.
death without issue or heirs as condition to gift over, 286.
delivery to agent of donor, 3.
essential of acceptance, 3.
essentials of gifts causa mortis, 3.
form of clause that invalid gift shall not defeat will, 786.
codicil revoking gift, 1230.
general gift of estate in shares, 674.
gift over after invalid gift, 785.
provision that advancements considered gifts, 1135, 1136,
inquiry ‘concerning character and kinds, 120.
lapsed and void gifts, 305.
lapse prevented by gift over, 311, 312.
over on death as sole contingency, 285.
property with right to consume, 232, 233.
provision in will against void gift, 435.
savings bank books, 3.
to classes of beneficiaries, 190.
to more than one person, 168.
to servants and employes, 182.
use under will, 243.
validity determined at time of making, 50.
validity of gifts to witnesses under laws of particular states and coun-
tries, 540-603.
vesting of estate indicated by form of gift, 255.
words used in creating, 135.
984 INDEX

[References are to Sections.]

GOOD FAITH,
duty to exercise by executors and trustees, 414, 415.

GOODS AND CHATTELS,
See PrersonaL Property.
words descriptive in wills, 216, 217.

GOOD WILL,
form of assignment of business and good will by parent to child, 788.

GRAMMATICAL REQUIREMENTS,
language of wills, 157.

GRANDCHILDREN,
designation in will as beneficiaries, 176."
form of clause disinheriting, 1129.
clause creating trust for benefit, 954, 959.
devise of estate for years, remainder in grandchildren, 841.
devise to grandsons providing for reversion in case of death with-
out issue, 838.
will creating trust for grandchildren, 1230.
will devising remainder to grandchildren, 1190.
will making provision conditioned on character, 1213.
gifts to class, 190, 191.

GRAVES,

provision in will for care, 14.

GREAT BRITAIN,
treaty affecting disposition and transmission of property, 623.

GREECE,
treaty affecting disposition and transmission of property, 624.

GREELEY, HORACE
will, 1252.

GREEN, HETTY H. R.
will, 1253.

GROWING CROPS,
See Crops.
‘GUARDIANS,
See Executors, TRUSTEES AND GUARDIANS.

appointment by will, 13.

under laws of particular states and countries, 540-603,
authority of guardian of incompetent to revoke wilt, 460.
competency as witness to will, 448.
forms of provisions in wills as to appointment, 1097-1118.
right to contest will, 518.
INDEX 985

[References are to Sections.]
GUATEMALA,

treaty affecting disposition and transmission of property, 625.

H.

HAGUE CONVENTION,
treaty affecting disposition and transmission of property, 649.

HAITI,
treaty affecting disposition and transmission of property, 626.

HALLUCINATIONS,
issue in contest of wills, 529.

HANSEATIC REPUBLIC,
treaty affecting disposition and transmission of property, 627.

HARRIMAN, EDWARD H.
will, 1254.

HAWAII,
statutes governing wills, 551.

HEIRLOOMS,
disposition by will, 119.
form of bequest, 761, 762.

HEIRS,
capacity to witness will under laws of particular states and coun-
tries, 540-603.
death without heirs as condition to gift over, 286.
defined, 169.
descent of property in case of intestacy, 2.
designation in will, 169.
determination of rights of heirs expectant, 2.
does not include stepchildren, 169.
form of devise to class, heirs of the body, 733.
gift to class, 190, 191.
parties to contest of wills, 523.
provision for disinheritance in will, 431.
right to contest wills, 518.
shares usually per stirpes, 195.
under intestate succession, 2.

HESSE,
treaty affecting disposition and transmission of property, 628.

HINTS,
See SuGGESTIONS FOR PLANNING AND DRAFTING.
986 INDEX

[References are to Sections.]

HOLOGRAPHIC WILLS,
attestation, 25, 453.
codicil to revoke, 463.
defined, 453.
execution, 453.
under laws of particular states and countries, 540-603.
forms, 25. ,
nature, 25.
publication, 25;
revocation of ordinary will, 461.
short form, 1188.
under civil law, 558.

HOMESTEAD,
disposition by will, 62.
occupancy by survivors on death of owner, 62. ‘
setting apart, 62.

HOMICIDE,
effect of murder of testator by beneficiary under laws of particular
states and countries, 540-603. ’
HONDURAS,

treaty affecting disposition and transmission of property, 629.

HOSPITALS,
form of bequest to endow bed, 874.

HOUSEHOLD GOODS,
form of will making bequests, 1175.
what included in term, 217.

HOUSEKEEPER,
form of legacy in trust for housekeeper, 967.

HOUSTON, SAM
will, 1255.

HUSBAND AND WIFE,
See Marriep WomMEN.

capacity as beneficiaries under will, 102.

competency to witness will of each other, 448.

deposit in joint names, 7.

designation as beneficiaries in will, 172.

disposal of community property by will, 65.

disposal of property of sole trader, 63.

forms for creation and payment of annuities, 926, 927.

form of appointment of spouse as executor, 1097.
appointment of spouse as guardian, 1106.
INDEX 987

[References are to Sections.]

HUSBAND AND WIFE—Continued.
bequest by wife for maintenance of husband, 801.
bequest in lieu of dower, 710, 711.
bequest on condition of husband’s death, 899.
clauses creating trust for interest of spouse, 937-941. ,
clauses creating trusts, for widows, 937-940.
clauses empowering executors to sell realty with consent of
wife, 1059.
devise of house and contents and lands to wife for life, then to
son, 837.
devise of life estate to wife, 799.
devises of life estate, 826-828.
devise to widow for life, remainder to sons on condition pre-
cedent, 1221. .
devise to wife for life then to son in fee, 724.
devise to wife for life with power of sale and condition against
remarriage, 810.
devise to wife in fee, 790.
devise to wife in fee making her an executor but not creating
a trust, 792.
devise to wife with power to convey fee simple, 807.
entire will of married woman in exercise of power of appoint-
ment in marriage settlement, 1179.
-entire wills bequeathing and devising whole estate to wife, 1170-
1173.
general legacies and devises, 671-673.
provision as to wife’s separate property, 745.
specific bequests of money and personal property, 660, 661.
will by husband containing various charitable bequests, 1233.
gifts to separate use of females, 101.
husband as trustee for wife, 354.
joint ownership of stocks and mortgages, 7.
limitations on right to transfer property, 63.
mutual wills, 28.
not included in next of kin, 170.
revocation of will by subsequent marriage, 467.
right of surviving spouse to contest will, 518.
rights in execution of wills under laws of particular states and coun-
tries, 540-603.
tenancies by entireties, 7.
trust created for benefit of married woman, 354.
wills between spouses, 81.

HYPOTHECATION,
under will, 367.

HYPOTHETICAL QUESTIONS,
questions to expert witnesses, 533.
988 INDEX

[References are to Sections.]

IDAHO,
statutes governing wills, 552.

IDIOTS, :
incapacity to make will, 83.

ILLEGITIMATE CHILDREN,
appointment to children does not include, 374.
capacity to take under will, 106.
designation in will as beneficiaries, 176.
effect of legitimation, 176.
whether included in term “relative,” 181.

ILLINOIS,
devise of estate for life with power to convey fee, 816.
form of defeasible fee, 831.
determinable fee, 830.
devise of base or determinable fee, 832.
devise of life estate, 796.
devise of life estate to wife and vested remainder in chil-
dren, 811.
devise to wife in fee making her an executor but not creating
a trust, 792.
gift for life with right to use, 808.
statutes governing wills, 553.

ILLITERATE PERSONS,
necessity of knowledge of contents of will, 441.

IMBECILES,
incapacity to make will, 83.

IMMORAL PERSONS,
capacity to act as executor, 410.

IMMORAL PURPOSE,
effect on validity of will of intent of legatee, 14.
invalidity of testamentary dispositions, 14.
property may not be willed for immoral purpose, 77.

IMPLEMENTS,
form of specific bequest, 669.

IMPLIED ESTATES,
creation by will, 231.
INDEX 989

[References are to Sections.]

IMPROVEMENTS,
under testamentary powers, 381.

IMPROVIDENT PERSONS,
capacity to act as executors, 410.

INCOME,
See Rents.

accumulation as violation of rule against perpetuities, 272.
alienation or assignment of trust income by anticipation, 348.
application or payment of income of trust, 349.
defined, 222, 345.
description in bequest, 222.
form of clause for payment of income, 1095.
clause providing for payment, 1095.
providing for capitalization, 1096.
will providing for disposition, 1206.
net income under testamentary trust, 345.
power to collect under will, 367.
time from which income under trust to be estimated, 347.
trust for accumulation, 346.
what constitutes income from trust property, 345.

INCOMPLETE WILLS,
validity, 153.

INCONSISTENCY,
repugnancy in wills, 154.
repugnant conditions in will, 281.

INCORPORATION,

form authorizing executors to incorporate business, 1073,

INDEMNITY,
form of trustees’ indemnity clause, 1048.

INDIANA,
bequest of personal property for life with remainder over, 813.
devise of fee simple estate, 789.
devise of life estate to husband, 798.
statutes governing wills, 554.

INDUSTRY,

provision in Rhodes’ will against benefits to loafers, 1258.

IN EXTREMIS,
essential of nuncupative will, 22.

INFANTS,
beneficiaries under testamentary trust, 352.
capacity to act as executors, 410.
990 INDEX

[References are to Sections.]

INFANTS—Continued. :

to act as trustee under will, 350.

to dispose of property by will, 80.

to execute power under will, 369.

to execute wills under laws of particular states and countries,

540-603.
to witness wills under civil law, 558.
form of bequest to son when he attains majority with maintenance
meanwhile, 848. ~
legacy to vest when legatee is twenty-one, 844.

INHERITANCE,
See DisINHERITANCE.

effect of treaties on right, 610-649.
provision in will for disinheritance of heirs, 431.

INHERITANCE TAXES,
duty of draftsman of will to inform testator of nature, 15.
forms of provisions for payment, 1140, 1141.
nature of tax, 15.
penalties for nonpayment, 15,
subjects of tax, 15.

IN REM,
contest of wills, 516.
probate of wills, 485.

INSANE HOSPITALS,
form of directions as to conduct, 1231.

INSANE PERSONS,
beneficiaries under testamentary trust, 352.
capacity to make will, 83.
capacity to witness wills under civil law, 558.
incapacity to act as executor, 410.
issue of insanity in contest of will, 529.

INSOLVENCY,
conditions in will against insolvency, 292.

INSTRUCTIONS,

See Provisions FoR MANAGEMENT AND SETTLEMENT OF ESTATE.
to jury in contest of will, 532.

INSURANCE,
bequest of policies, 763.
description in bequest, 221.
disposal of proceeds of insurance, 61.
disposition of proceeds by will, 61.
INDEX 991

[References are to Sections.]
INSURANCE—Continued.
form authorizing insurance by executors, 1082.
clause authorizing collection of insurance by executors, 1241.
provisions in will for insuring property of estate, 403.

INTEMPERATE PERSONS,
Capacity to act as executors, 410.

INTENT,
testator respecting vesting of estate, 251.

INTENTION,
charging specific property with payment of debts and legacies, 327.
essential of gift causa mortis, 3.
publication of will, 445.
revival of will depending on intention of testator, 477.
revocation of wills, 460.
by alterations and additions, 465.
testator and not that of legatee determinative of validity, 14.
testator respecting lapse, 309.
testator to create trust, 340.
test of will, 9.

INTEREST,
description in bequest, 222.
disqualification of witnesses, 448.
form providing for interest on legacy, 1092.
on advancements, 433.
on legacies, 347.
provisions in will for payment of interest on legacy, 396.

INTERLINEATIONS,
See ALTERATIONS.

INTERNATIONAL LAW,

treaties and conventions affecting disposition and transmission of prop-
erty, 610-649: :

INTERPRETATION,

See CoNnSTRUCTION.

INTERPRETATION CLAUSES,
forms, 1142. :

INTESTATE SUCCESSION,
effect of partial intestacy, 2.
general principles, 1, 2.
intestate defined, 2.

INTOXICATING LIQUORS,

form for trust to suppress sale, 878.
992 INDEX

[References are to Sections.]

INVENTORIES,
form directing filing by executors, 1084.
declaration dispensing with inventory of furniture bequeathed,
756.
provisions in will, 400,

INVESTMENTS,
directions in will concerning investments, 390.
forms conferring power on trustees to invest, 1002-1004, 1010-1014.
directions to executors to sell property, reinvest and pay income,
1061.
directions to trustees under a will to sell stock and invest pro-
ceeds of sale in mortgages, 1054.
request to trustees to change investment, 1051.
power to make under will, 367.
provisions for investments in Rhodes’ will, 1258.
provisions in will for loss, 390.
under testamentry power, 381.

IOWA,
form of devise of income to wife, distribution when youngest child
becomes of age, 842.
devise of life estate with power of disposition, remainder to
children, 818.
devise to wife in fee, 790.
statutes governing wills, 555.

IRELAND,
: statutes governing wills, 594.

ISSUES,
See ConTEst oF WILLS.

contest proceedings, 527-531.
designation in will, 173.

ISSUE OF THE BODY,
defined, 173.
designation in will, 173.

ITALY,
treaty affecting disposition and transmission of property, 630.

J
JAPAN,
treaty affecting disposition and transmission of property, 631.

JEFFERSON, THOMAS,
will, 1256.
INDEX 993

[References are to Sections.]

JEWELRY,
form of bequest, 764.

JOINT DONEES,
power under will, 371.

JOINT TENANCY,

creation by will, 240.

devise of interest of one joint tenant, 7.

disposal of interest by will, 67.

effect of death of one joint tenant, 7.

form of devise to son’s wife and children as joint tenants and exclu-
sion of son from inheritance, 1127.

nature of estate, 7.

neither dower nor curtesy in estate, 240.

JOINT WILLS,
execution under laws of particular states and countries, 540-603.
form of entire wills, 1183-1185.
joint will by tenants in common, 1183.
nature and characteristics, 28.
probate, 502.
revocation, 470.

JUDGES,
form of power of appointment of executor left to judge, 1105.

JUDGMENTS,
contest of will, 534. :
necessity that judgment should follow verdict, 534.

JURIES,
right to trial by jury in contest of will, 532.
probate of lost or destroyed wills, 504.

JURISDICTION,
actions to contest wills, 521, 522.
courts in probate of wills, 492.

JUS ACCRESCENDI,
right of survivorship, 7.

KANSAS,

statutes governing wills, 556.

KEEPSAKES,
form of 1 equest, 762, 766.

63—Tuomr. WIL1s.
994 INDEX

[References are to Sections.]

KENTUCKY,
statutes governing wills, 557.

KIN,
use of word in will condemned, 181.

KINDS AND CLASSES OF WILLS,
alternative wills, 27.
classification, 20.
codicils, 32.
contingent or conditional wills, 26.
contracts to make or not make a will, 33.
holographic wills, 25.
joint and mutual wills, 28.
mystic wills, 24.
nuncupative wills, 22, 23.
ordinary written wills, 21.
separate wills in relation to property in different jurisdictions, 29.
wills appointing executors only, 30.
wills operative at discretion of another, 31.

KNOWLEDGE,
testator as to contents of will, 451.

KONGO,
treaty affecting disposition and transmission of property, 632.

L

LANGUAGE,
See Construction; Form anp LancuaGE,

LANDLORD AND TENANT,

See Leases.
LAPSE,

by death where realty charged with payment of legacy, 306.

by failure of beneficiaries capable of taking gift, 307.

causes other than death of beneficiary, 307.

death of beneficiary as cause, 306.

death of trustee before testator, 306.

devolution of lapsed legacies and devises, 308.

disposition of lapsed devises under laws of particular states and coun-
tries, 540-603.

distinction between lapsed and void gift, 305.

forms of provisions as to lapse, abatement and priority of legacy,
910-924, 1202.

intention of testator, 309.

lapsed and void gifts generally, 305.
INDEX 995

[References are to Sections.]
LAPSE—Continued.

legacies falling into residuum, 308.
legacy by remarriage of beneficiary, 307.
prevention by gift over after gift to class, 312.
prevention by residuary clause, 313.

by substitution or gift over, 311.

by use of particular words, 310.

by use of words “heirs, executors, administrators and assigns,”

311.

statutory provisions to prevent, 310.
under laws of particular states and countries, 540-603.
where gift void, 307.
where purpose of gift fails, 307.
whether operative to revoke will, 305.

LAWFUL HEIRS,
defined, 173.
designation in will, 169, 173.

LAW OF THE PLACE,
See Cowrtict or Laws.

LAWS BY WHICH WILLS ARE GOVERNED,
See Conriicr or Laws; STATUTES.

capacity of beneficiary to take, 44.
construction and interpretation, 49,
effect of change of domicil after making will, 43.
effect of enactment after death of testator, 51.
effect of enactment subsequent to execution of will, 50.
election, dower and disinheritance, 48.
revocation, 47.
trusts created by will, 45.
where will may be executed, 40.
wills executing powers, 46.
wills of personalty, 42.

of realty, 41.

LEAD PENCIL,
effect of use in will on validity, 150.

LEASES,
form authorizing executors to lease property, 1067.
conferring power on trustees to lease, 1024, 1025.
of bequest of leasehold house with furniture, 753.
of devise of building to son subject to lease and mortgage, 781.
of devise of estate for life with power to lease, 806.
power under will, 367, 378.
right to lease under testamentary power, 378.
996 INDEX

[References are to Sections.]

LEE, ROBERT E,,
will, 1257.

LEGACIES,

See Devises anp Lecacies ; Forms AND PRECEDENTS FOR PARTICULAR CLAUSES;
Girts ; Lapse.

acceptance as estoppel of contestant, 519.
charging specific property with payment, 320-327.
defined, 8.
delivery of specific legacy, 402.
designating legatees and their shares, 165-19
devolution of lapsed legacies, 308.
forms of bequests and devises to certain kinds of beneficiaries, 704-742.
of charges on particular property, 680-686.
of codicil reducing legacy by amount of advancements, 1155.
of cumulative legacy, 678.
of demonstrative legacy, 676, 677.
of entire wills, 1170-1233.
of provisions in wills as to lapse, abatement and priority of leg-
acy, 910-924,
of substitutional legacy, 679.
of will giving immediate legacy to wife and residue of property
to trustees for wife for life with remainder to children, 1174.
provision for interest, 1092.
how general legacies satisfied, 138.
money regarded general rather than special, 139.
payment by executor, 420. :
provision for ademption and satisfaction in will, 434.
‘ provision in will against void gift, 435.
provisions in will for payment, 394-396.
for payment in case of shrinkage, 395.
for payment of interest, 396.
to subscribing witnesses under laws of particular states and countries,
540-603.

LEGAL REPRESENTATIVES,
designation in will, 171.

LEGATEES,
competency as witnesses, 448.
defined, 8.
effect of death in lifetime of testator under laws of particular states and
countries, 540-603.
law governing capacity to take, 44.
rights under unprobated will, 486.

LEGITIMATE ISSUE,
designation in will, 173.
INDEX 997

[References are to Sections.]
LETTERS, :
form of bequest of letters, 767-769.
of request to executor to destroy letters, 1091.
operativeness as codicil, 32.
will in form of a letter, 1187.

‘LIBRARIES,
form of bequest not to exclude certain class of books from library, 885.

LIFE ESTATES,
creation, 284.
creation by use of words, use, possession or enjoyment, 236.
creation with power of disposition, 237.
disposal by will, 67.
form of clauses creating life estate on condition, 891.
of clauses creating trusts, 934-995.
of devise, 794-843,
of devise of life estate to husband, 798.
of devise of property for life with power of disposition of fee,
1194,
of devise to children, 1223.
of devise to wife and daughter, 1222.
of devise with power to lease, 806.
of remainder vesting at death of life tenant, 847.
of will devising to wife, 1212.
of will giving life estate with power to sell, 1203, 1204.
in personalty, 233.
in real property, 236.
survivorship as a contingency, 284.

LIFE TENANTS,
form of bequest to charity where beneficiaries to be selected by life ten-
ant, 863.
lapse by death of life tenant before testator, 306.
limitation on power to lease, 378.
termination of trust by death, 358.
trustees for remainderman, 351.

LIMITATIONS,
conditional limitations in will, 283.
on capacity and power of testator, 75-87.

LIMITED FEES,
creation by will, 235.
defined, 235.

LITERARY EXECUTORS,
See Literary Property.

form of appointment, 1102.
998 INDEX

[References are to S ections.]
LITERARY PROPERTY,

See Lirerary Execurors.

bequest in will of Washington, 1261.

form of bequest of manuscripts; 768.
of provision in will for disposition, 1242,
of request to literary executor, 1090.

LIVE STOCK,
See ANIMALS.

form of specific bequest, 669.

LOSS OR DEPRECIATION,
liability of executor, 414.

LOST WILLS,
contest by devisees or legatees, 518.
degree of proof required to establish, 505.
pleadings, 504.
probate, 131.
procedure to establish, 504.

LOUISIANA,
nuncupative will, 23.
operativeness of French law of wills, 21.
statutes governing wills, 558.

LUNEBURG,
treaty affecting disposition and transmission of property, 617.
M
McLEAN, JOHN R,,
will, 1262.
MAINE,

form of bequest for life with power of disposal, 820.
of devise of life estate with power of disposal, 819.
of devise of life estate with power of sale, 815.
of devise to wife for life with power of sale and condition against
remarriage, 810.
statutes governing wills, 559.

MAINTENANCE,
form covering power on trustees to maintain children, 1015-1017.
forms creating estates for maintenance, 844-862.
of bequest by wife for maintenance of husband, 801.
of clause devising life interest in trust estate to widow charged
with maintenance of children, 937.
testamentary trust, 355.
INDEX 999

[References are to Sections.]
MAJORITY,
form of declaration that decision of majority of trustees shall be
binding, 1033.

MANAGEMENT,
See Provisions ror MANAGEMENT AND SETTLEMENT oF ESTATE.

inquiry by draftsman of will as to testator’s wishes as to estate, 122,
property under will, 367.
under testamentary powers, 381.

MANITOBA, .
statutes governing wills, 595,

MANUSCRIPTS,
form of bequest, 767, 768.

MARRIAGE,
conditions in restriction in will, 288.
contingency of vesting of estate, 253.
effect to revoke will, 467.
effect to revoke will under laws of particular states and countries, 540-
603.
form of bequest to daughter on termination of marriage, 862.
of codicils relating to effect of marriage or remarriage, 1149,
of condition against marrying certain person, 896.
of condition as to marriage, 897.
of devise with condition against remarriage, 810.
of gift to polygamous wife with condition against polygamous
remarriage, 898.
of legacy to vest on marriage, 845.
revocation of will by marriage of testator, 47.
to defeat qualified or defeasible fee, 235.
validity of gifts conditioned on beneficiary remaining unmarried, 288.

MARRIAGE SETTLEMENTS,
See ANTE-NUPTIAL AGREEMENTS.

form of entire will of married woman in exercise of power of appoint-
ment in marriage settlement, 1179.
method of devolving property of owner, 6.

MARRIED WOMEN,
See Hussanp AND WIFE.

ante-nuptial agreements, 6.

beneficiaries under will, 352.

capacity to act as executors, 410.
to act as trustees under will, 350.
to dispose of property by will, 81.
1000" INDEX

[References are to S ections.]
MARRIED WOMEN—Continued.
to execute power under will, 369.
to execute wills under laws of particular states and countries, 540-
603.
conditions restricting married women from alienating, 297.
place of probate of will, 487.
right to dispose of property under laws of particular states and coun-
tries, 540-603.
testamentary trust for benefit, 354.
testamentary trust where beneficiary lives abroad, 337.

MARYLAND,
form of devise of life estate to children, contingent remainder to grand-
children, 839.
statutes governing wills, 560.

MASSACHUSETTS,
form of bequest by wife for maintenance of husband, 801.
of devise for a term and for life, 814.
of devise for life with power to convey fee, 825.
of devise of life estate with power of disposal, 822,
statutes governing wills, 561.

MASSES,
bequests for saying, 100.

MECKLENBURG-SCHWERIN,
treaty affecting disposition and transmission of property, 633.

MEDICAL EXPERTS,
testimony as to competency of testator, 533.

MEMENTOS,
forms of bequest, 766, 771, 773.

MEMORANDA,
not will, 7.

MEMORIALS,
forms of bequest, 770.

MENTAL DEPRAVITY,
issue in contest of will, 529.

MENTAL INCAPACITY,
See Insane Persons.

evidence in contest of will, 533.
ground for contest of will, 524.
sufficiency of pleading, 525.
INDEX 1001

[References are to Sections.]
MICHIGAN; ~~ ~
i form of devise for life with limited power of disposal, 826.
form of devise of life estate to wife, 799.
of devise to wife for life with limited power of disposal, 826,
statutes governing wills, 562.

MILITARY WILLS,
validity under laws of particular states and countries, 540-603,

MINISTERS,
form of trust for ministers, 986.

MINNESOTA,
statutes governing wills, 563.

MISAPPLICATION OF FUNDS,
liability of executor, 414.

MISCELLANEOUS PROVISIONS IN WILLS,
ademption and satisfaction of legacies, 434.
advancements, 433.
construction by umpire, 432.
disinheritance of heirs, 431.
disposition of body of testator, 430.
provision against void gift, 435.

MISNOMER,
corporate beneficiary in will, 166.
designation of beneficiaries in will, 166.

MISSISSIPPI,
form of ‘devise of life estate, 804.
form of devise of life estate in personalty, 802.
of devise to grandsons providing for reversion in case of death

without issue, 838.
statutes governing wills, 564.

MISSOURI,
form of devise for life with remainder over, 812.
of devise of defeasible fee, 833.
statutes governing wills, 565.

MISTAKE,
ground for contest of will, 524.
precaution by draftsman, 125.

MODIFIED FEES,
creation by will, 235.
1002 INDEX

[References are to Sections.]

MONEY,
bequest general rather than specific, 139.
description in wills, 215.
of bequest for life, 803.
of specific bequest of cash to wife, 660,
use of term in will condemned, 215.

MONOMANIA,
issue in contest of wills, 529,

MONOMANIAC,
capacity to make will, 83.

MONTANA,
statutes governing wills, 566.

MONUMENTS,

provision in will for erection, 14.

MOROCCO,

treaty affecting disposition and transmission of property, 634.

MORPHINE USERS,
capacity to make will, 87.

MORTGAGES,
description in wills, 219,
form conferring power on trustees relative to mortgages, 1907-1009,
1048.
of devise free from mortgage debt, 783.
of devise of mortgaged property, 779-781.
of direction that incumbered property shall bear burden of in-
cumbrance, 782.
of direction to trustees to sell stock and invest proceeds in mort-
gages, 1054.
of release of mortgage debt, 760.
of request to trustees to collect mortgage and purchase land, 1050.
form of investment, 390.
power to execute, 367.
provisions in will for application of proceeds of sale, 398.
rights of survivors in case of joint ownership, 7.
Tight to mortgage under testamentary power, 379.
vested estates, 250.
whether power to mortgage included in power to sell, 379,

MUNICIPAL CORPORATIONS,
capacity to take under will, 44, 98.
form of bequest to town for school purposes, 877.
of ‘charitable bequest providing for municipal corporation as
trustee, 888.
INDEX 1903

[References are to Sections.]

MURDER,
See Homicine.

MURDERERS,
capacity to take under will of murdered testator, 109.

MUTILATION,
effect to revoke will, 464,

MUTUAL WILLS,
execution under laws of particular states and countries, 540-603,
forms, 1184.
nature and characteristics, 28,
probate, 502.
revocation, 470.
right to revoke, 28.

MYSTIC WILLS,
nature, 24.
sealing and superscription, 24.
under laws of Louisiana, 558,

N

NAME,
condition in will as to name of beneficiary, 294.
designating beneficiary by name, 166.

NAMESAKES,
form of bequest to namesake, 723.

NEBRASKA,
statutes governing wills, 567.

NEPHEWS,
designation in will as beneficiaries, 178.
does not ordinarily include grandnephews, 178.

NETHERLANDS,
treaty affecting disposition and transmission of property, 635.

NET INCOME,
under testamentary trust, 345.

NEVADA,
statutes governing wills, 568.

NEW BRUNSWICK,
statutes governing wills, 596.
1004 INDEX

[References are to Sections.]

NEWFOUNDLAND,
statutes governing wills, 597.

NEW HAMPSHIRE,
form of devise of life estate with power of disposal, 823.
statutes governing wills, 569.

NEW JERSEY,
statutes governing wills, 570.

NEW MEXICO,
statutes governing wills, 571.

NEWSPAPERS,
bequest of stock by Horace Greeley, 1252.
form of provision for management under will of McLean, 1262.

NEW YORK,
form of bequest of money for life, 803.
of devise of estate for years, remainder in grandchildren, 841.
statutes governing wills, 572.

NEXT OF KIN,
defined, 170.
designation in will, 170.
does not include surviving spouse, 170,
not included in descendants, 174.
parties to contest of wills, 523.
sometimes includes representatives, 171.

NIECES,
designation in will as beneficiaries, 178.
does not ordinarily include grandnieces, 178,

NOMINATION,
executor by testator, 410,

NONRESIDENTS,
capacity to act as trustees under will, 350.

NORMAL WILLS,

characteristics, 21.

NORTH CAROLINA,
form of devise for life with remainder over, 812. -
devise of defeasible fee, 834.
devise of life estate with power of disposal, 824.
statutes governing wills, 573.

NORTH DAKOTA,
statutes governing wills, 574.
INDEX 1005

[References are to Sections.]
NORWAY,

treaty affecting disposition and transmission of property, 645.

NOTARIAL WILLS,
under laws of Scotland, 603.

NOTARY,
office in execution of mystic wills, 24,

NOTICE,
contest of wills, 515.
necessity of personal notice of probate, 493,
proceedings for probate, 493.

NOTES,
clause in will conferring power to sign commercial paper, 1063.
description in wills, 220.
effect to estop contest of will, 519.
subject of trust, 344.

NOVA SCOTIA,

statutes governing wills, 598.

NUNCUPATIVE WILLS,
at common law, 22.
by mariners, 22.
defined, 22, 454.
execution, 454.
methods of probate under laws of particular states and countries, 540-

603,
necessity for strict compliance with statutes in execution, 22.
necessity of reading to testator, 22, 23.
not favored by courts, 22.
probate, 503.
rules governing under laws of particular states and countries, 540-603.
signature, 23. ,
similarity to gift causa mortis, 22,
under civil law, 23, 558.
witnesses, 22.

O
OBLITERATION,
as revocation of will, 464.
OCCUPATION,
condition in will as to occupation of beneficiary, 293.
OFFSPRING,

defined, 175.
designation in will as beneficiaries, 175,
word of limitation, 175.
1006 INDEX

[References are to Sections.]
OHIO,
statutes governing wills, 575.

OKLAHOMA,
statutes governing wills, 576,

OLD AGE,
issue in contest of will, 529.

OLOGRAPHIC WILLS,
See HotocrapHic WILLS.

CMITTED CHILDREN,
effect of omission under laws of particular states and countries, 540-603.

ONTARIO,
statutes governing wills, 599,
OPEN WILLS,
See Nuncupative WILLs.
ORAL WILLS,

effect to revoke written wills under laws of particular states and coun-
tries, 540-603.

OREGON,
statutes governing wills, 577.

OTTOMAN EMPIRE,
treaty affecting disposition and transmission of property, 636,

OVERPERSUASION,
issue in contest of will, 530.

OVERSEERS,
provisions in will for appointment, 397.

P

PAPERS,
separate sheets as part of same will, 151.

PARAGUAY,
treaty affecting disposition and transmission of property, 637.

PARAMOURS,
capacity to take under will, 108.
INDEX 1007.

[References are to Sections.]
PARENT AND CHILD,
See CHILDREN.

creation of trust for benefit of child, 337.

form of assignment of business and good will to child, 788.
bequest for sole and separate use of granddaughter, 840.
clause creating trust for children, 942-965.
clause giving executors power to pay infant’s legacy to parent or

guardian, 1068.
clauses including and excluding children, 1121-1130.
codicil substituting child of son who has died, 1156.
conditional bequest to son on executor’s approval, 894,
devise for benefit, 725-727.
devise of fee to vest when son reaches majority, 851.
devise of residue to children in trust, 1220.
devise to child with substitution of issue, 725.
entire will of widow devising estate to trustees in trust for chil-
dren, 1177.

gift to child upon death of wife, 739.
legacy to children to equalize shares, 731.
release of son from payment of interest on debts, 717.
specific legacies and devises, 665, 666.
trust for son, 1227.
trust for son, income after death to his widow, 1226.
will leaving property to mother, 1219.

PAROL EVIDENCE,
establishment of contract to make will, 33.
to explain repugnancy, 154.

PARTIAL INTESTACY,
application of rule of descent, 2.

PARTICULAR CLAUSES,
forms, 655-1164.

PARTIES,
establishment of lost or destroyed wills, 504.
executors as parties to contest of wills, 523.
purchasers from devisees as parties to contest of wills, 523,
who may contest probated will, 518.
who may oppose or contest probate, 517.

PARTITION,
form authorizing partition by executors, 1066.
forms conferring powers on trustees to partition among cestui que
trust, 1029.
form of clause directing division of property, 1132.
power under will, 367.
1008 INDEX

[References are to Sections.]

PARTNERSHIP,
disposition of interest by will, 119.
form authorizing executors to carry on partnership, 1072,
authorizing executors to wind up partnership business, 1074.
conferring power on trustees to continue partnership business,
1038,
conferring power on trustees to purchase shares of partners,
1039,
giving executors power to arrange for admission of testator’s
son into firm, 1076.
of appointment of agent to manage and wind up testator’s part-
nership business, 1107.
of bequest of share in partnership to son under articles, 777.
of provision for annuity during term of partnership, 932.

PASSIVE TRUSTS,
creation, 343.

PATENT RIGHTS,
subjects of trusts, 344,

PATRONS,
form of bequest of rights, 759,

PAYMENT,
See Provisions FoR MANAGEMENT AND SETTLEMENT oF Estate.

charging specific property with payment of debts and legacies, 320-327.
conditions in will as to payment of debts, 295. ;
form of charge on property to secure payment of legacy, 683.

clause naming time of payment of legacies, 1094.

direction as to time at which legacies are to be paid, 924.
income of testamentary trust, 349,

PECUNIARY LEGACIES,
forms of bequests, 670.

PENALTIES,
nonpayment of inheritance tax, 15.
withholding will from probate, 489.

PENNSYLVANIA,
bequest of life estate in income of personalty, 805.
form of devise of estate tail, 835.
devise of fee simple, 790.
devise of life estate, 794, 800.
devise of life estate in realty and personalty, 797.
devise to wife for life or during widowhood, 827.
statutes governing wills, 578.
INDEX 1009

[References are to Sections.]

PER CAPITA,
forms of devises and bequests, 734, 735.
of gifts, 737.
of residuary bequest, 692.
of will making bequests to children of brother per capita, 1207.

PER CAPITA AND PER STIRPES,
designation in will, 195.

PERPETUITIES,
application of rule against, 41.
to charitable gifts, 271.
common-law rule, 266.
disposition of gift where void for violation of rule, 273,
duration of trust term, 357.
effect of directions to accumulate the income, 272.
estates or interests subject to the rule, 270.
limitations on power to lease, 378.
meaning of perpetuity in law, 265.
nature and purpose of the rule, 268.
period allowed for vesting, 269.
Provisions in will for payment of legacies, 394.
purpose of rule to facilitate alienation, 268.
statutory modifications of the rule, 267.
validity under laws of particular states and countries, 540-603.
violation of rule in gifts to class, 190.

PERSIA,
treaty affecting disposition and transmission of property, 638.

PERSONAL PROPERTY,
absolute gifts, 232.
Capacity to devise under laws of particular states and countries, 540-603.
charging debts and legacies on personalty specifically devised, 325.
creation of absolute estate by use of words heirs, descendants or rep-
resentatives, 232.
description in wills, 214-222.
of interest, income or profits, 222.
effect of limiting terms in gifts, 232.
exoneration from liability for debts and legacies, 327.
form of devise of life estate, 802.
forms of bequest, 743-788.
gift absolute where right to consume is given, 232,
laws governing bequest, 42.
laws of domicil governing wills, 42.
legacies and debts payable out of personalty, 320,
life estates, 233.
primary fund for payment of debts, 2.

64—Tuomp. WILLS.
1010 _ INDEX

[References are to Sections.]

PERSONAL REPRESENTATIVES,
designation in will, 171.

PER STIRPES,
form of bequest, 732, 738.

PETITION,
See PLEADING.

application for probate, 492.
contest of will, 525.
lost will, 504.

PHILIPPINE ISLANDS,
statutes governing wills, 579,

PHYSICIANS,
capacity as witnesses to wills and also as witnesses to competency of
testators, 127.
competency as witnesses on contest of will, 533.
validity of wills in favor of attending physicians, 86.

PLACE,
probate, 487.
where will may be executed, 40,

PLANTATION EQUIPMENT,
form of bequest, 758.

PLANTATIONS,
form of will disposing of numerous plantations, 1198.

PLEADING,
See Petirion.

contest of will, 525.
copy of will as exhibit, 525.
copy of will as part of complaint on contest, 525.
issue of invalidity of will by general averment, 528.
issue of testamentary incapacity in contest of wills, 529,
prayer to complaint in will contest, 525.

PLEDGE,
property under will, 367.

POLICIES,
description of insurance policies in wills, 221.
disposition by will, 61.
form of bequest, 763.

POOR PERSONS,
form of bequest for benefit of poor, 868-871.
INDEX 1011

[References are to Sections.]
PORTIONS,
See SHARES.
defined, 205.
designation in wills, 194,

PORTO RICO,
statutes governing wills, 580,

PORTRAITS,
forms of bequests, 774.

POSTHUMOUS CHILDREN,
See AFTER-BoRN CHILDREN.
POWER OF ATTORNEY,

operativeness as codicil, 32,
form, 1085.
empowering executors to give, 1085.

POWER OF SALE,
form of devise of life estate with power of sale, 815.
devise of realty to two with power of sale, 836.
in will appointing executor only, 30.

POWERS,
See TESTAMENTARY Powers; Trusts.

disposition of interests by will, 59.
laws governing wills executing powers, 46.

PRACTICE,

See AppLicaTIon; Burpen oF Proor; Contest or Wits; Evinence; Notice;
Parties; Petition; Preapinc; Propare; Process; Statute or Limira-
Tions; TRIAL; WITNESSES.

PREACHERS,

form of trust for preachers, 986.

PRECATORY TRUST,
form of request to executor in nature of precatory trust, 1089.
will for support of mother and sister of testator, 1211.

PRECATORY WORDS,

creation of testamentary trusts, 339.

PRECEDENTS,
See Forms ror ParticuLar CLAUusES.
1012 INDEX

[References are to Sections.]

PRESUMPTIONS,
absolute gift of personal property, 233.
issue in contest of will, 530.
time of alteration of will, 452.
use of technical words, 158.

PRETERMITTED CHILDREN,
rights under laws of particular states and countries, 540-603.

PRIMARY FUNDS,
personalty for payment of debts of intestate, 2.

PRINCIPAL AND AGENT,
See AcEncy.
PRIORITY,
form of codicil directing which of two prior wills shall take effect, 1611.
provisions in wills as to priority of legacy, 910-924.

PRISON ASSOCIATION,
form of will leaving residue to association, 1229,

PRISONERS OF WAR,
execution and probate of will, 649.

PRIVATE LETTERS,
forms of bequest, 769.

PRIVILEGED WILLS,
under civil law, 20.

PROBATE,
ancillary probate, 487.
conditional and alternative wills, 501.
definition, 485.
degree of proof required to establish a lost or destroyed will, 505.
duty of executor to propound will for probate, 420.
effect of probate, 508.
evidence and burden of proof, 498.
foreign wills, 506.
under laws of particular states and countries, 540-603.
form and contents of application, 492.
general principles, 485.
hearing where application not formally attested, 497.
in common form, 494,
in solemn form, 495.
joint, mutual, double and simultaneous wills, 502,
jurisdiction of courts, 491.
nature of decree, 508.
nature of proceeding, 485, 493,
INDEX 1013

[References are to Sections.]

PROBATE—Continued.
nuncupative wills, 503.
under laws of particular states and countries, 540-603.
papers referred to in will, 488.
penalties for withholding will from probate, 489.
place, 487.
under laws of particular states and countries, 540-603.
prima facie case in probate of will, 498.
procedure to establish lost or destroyed wills, 504.
production of will, 489.
repropounding a will once probated or rejected, 496.
revocation of probate, 509.
rights and interests under unprobated wills, 486.
rules under laws of particular states and countries, 640-603.
time of competency of witnesses, 499.
uniform foreign probate law, 507.
what must be probated, 488.
where will valid in part only, 500.
who may be proponent, 490.
wills appointing executor only, 30.
wills executed in foreign countries, 610-649.
wills outside of state under laws of particular jurisdictions, 540-603.

PROCESS,
notice of proceedings for probate, 493.

PRODUCTION,
will for probate, 489.

PROFITS,
See Rents.
description in bequest, 222.
form of clause directing disposition of profits from business, 1036.
of will providing for disposition, 1206.

PROMISSORY NOTES,
See Notes.
PROPERTY,
defined, 208.

PROPERTY DEVISED OR BEQUEATHED,
certainty of description, 201.
conflicting and repugnant descriptions, 202.
description of after-acquired property, 206.
bonds, mortgages and securities, 219.
effects, 209.
estate, 207.
furniture and household goods, 217.
goods and chattels, 216.
1014 INDEX

[References are to Sections.]
PROPERTY DEVISED OR BEQUEATHED—Continued.
money and cash, 215.
notes, accounts and choses in action, 220.
property, 208.
realty generally, 210, 212.
share, part or portion, 205.
effect of failure to describe property, 200.
false and erroneous descriptions, 203.
insurance, 221.
interest, income or profits of personal property, 222.
language passing entire estate, 204.
rents, income and profits of real estate, 213.
stocks, 218.
what words will carry personal property, 214.

PROPERTY SUBJECT TO DISPOSITION,
after-acquired personal property, 56.
after-acquired real estate, 57.
community property and estates by entireties, 65.
dower, curtesy and statutory allowances, 63.
dower interests, 55.
future or contingent estates, 64.
generally, 55.
homestead and other exemptions, 62.
interests not surviving, and property transferable to others at testator’s
death, 67.
interests under contract to convey or purchase, 60.
interests under trusts and powers, 59.
necessity of ownership by testator, 55.
partnership property, 55.
proceeds of insurance, 61.
property held as joint tenant, 55.
property over which testator has power of disposition, 55.
property transformed, 58.
rights of entry, 66.

PROPONENT,
who may be, 490.

PROVISIONS FOR MANAGEMENT AND SETTLEMENT OF

ESTATE,

applying proceeds of sale or mortgage of trust property, 398,

appointment of agents and attorneys, 397.

auditing accounts and securities, 401.

compromise of claims, 399.

directions concerning investments, 390,

distribution in kind, 402.

instructions as to voting shares, 391,
INDEX 1015

[References are to Sections.]
PROVISIONS FOR MANAGEMENT AND SETTLEMENT OF
ESTATE—Continued.

insuring property, 403.
inventories, appraisements and reports, 400.
loss through unprofitable investments, 390.
paying debts and funeral expenses, 393.
payment of interest on legacies, 396.
payment of legacies in case of shrinkage, 395.
selling real estate to pay debts, 392.
when legacies payable, 394,

PRUSSIA,
treaty affecting disposition and transmission of property, 639.

PUBLICATION,
holographic wills, 25.
republication, 475-480.
of will after marriage, 467.
time of publication of will, 445.
wills generally, 445.

PUBLIC CORPORATIONS,
capacity to take under will, 98.
power to act as trustee under will, 350.

PUBLIC POLICY,
conditions in will against alieaation of property, 296.
conditions in will restricting marriage, 288.
conditions in wills favoring divorce or separation, 289.
dispositions for immoral purposes, 77.
necessity that trust be for lawful purpose, 337.
opposed to gifts causa mortis, 3.
purposes of testamentary dispositions, 14.
void and repugnant conditions in will, 281.
wills made in contemplation of suicide, 14.

PUNCTUATION,
wills, 159.

PUR AUTRE VIE,

devise under laws of particular states and countries, 540-603.

PURCHASE CONTRACTS,
disposition by will, 60.

QUALIFIED FEE,
creation by will, 235.

QUARANTINE,
See HomeEsTEaD.
1016 INDEX

[References are to Sections.]

QUASI CORPORATIONS,
capacity to take under will, 98,

QUEBEC, .
statutes governing wills, 601.

R
RAILROADS,
disposition of stock by will, 56.
\

RATIFICATION,
treaties, 610-649,

READING,
whether will should be read to testator, 441.

REAL ESTATE,
charging realty specifically devised with payment of debts and legacies,
324,
with payment of annuity or support, 323,
creation of life estate, 236, 237.
descent in case of intestacy, 2.
description in wills, 200-213.
description of property by name, 212.
devise governed by law of domicil, 41.
disposition by will of after-acquired, 57,
express charge of legacies upon realty, 321.
fee simple title under will, 234.
forms of entire wills disposing of property, 1170-1233.
specific devises, 658-669.
implied charge of legacies upon realty, 322.
language descriptive in will, 210-213.
language in will passing entire estate, 204.
laws governing devise, 41.
rules governing disposition under treaties with foreign countries, 610-
649.
title of executor to real property, 420.
words sufficient to carry realty, 211.

RECEIPTS, :
form of trustees’ receipt clause, 1047.
forms passing on conclusiveness of executors’ receipts, 1087.

RECIPROCAL WILLS,
nature and characteristics, 28.

RECONCILIATION,
form of bequest on condition of reconciliation, 904.
INDEX 1017

[References are to Sections.]

RECORDS,
form directing keeping by executors, 1083.

RE-EXECUTION,
how best accomplished, 480.
will on change of domicil, 43,
wills, 475-480.

REFERENCE,
form for incorporation of paper in will by reference, 1143.
method of incorporation of documents, 152.

REFORMATION,
condition that beneficiary shall reform, 294.
form of clause giving legacy conditional on reformation, 903.
provision for children conditioned on character, 1213.

RELATIVES,

capacity to act as trustees under will, 350.

designation as beneficiaries in will, 181.

4

RELEASE,

effect on right to contest will, 519.

form of release of mortgage debt, 760.

release of executors from making or filing inventories, 1084.

RELEASE OF DEBTS,
form, 715.

RELIGION,
conditions in will as to religion of beneficiary, 293.

RELIGIOUS SOCIETIES,
See CHURCHES.

capacity to take under will, 100.
designation in wills as beneficiaries, 189.
limitations on devises and bequests, 78.

RELINQUISHMENT,
Provision in will for relinquishment of executors and trustees, 413,

REMAINDERS,
See VESTED AND CoNTINGENT EstAtTEs,

creation of estates by will, 241.

defined, 241.

disposal of contingent remainders by will, 64.
distinguished from executory devises, 241.
form of devise, 789-843.
1018 INDEX

[References are to Sections.]

REMAINDERS—Continued.
form of remainder vesting at death of life tenant, 847.
forms creating, 849-862.
vested remainders, 846.
life tenant as trustee for remainderman, 351.

REMARRIAGE,
devise conditioned against remarriage, 810.

RENTS,
description in will, 213.
forms of wills providing for disposition, 1206.
income from trust property, 345-349.
rights of creditors under testamentary trusts, 356.

RENUNCIATION,
See ELEctTIon.

provision in will for renunciation by executors and trustees, 413.
under laws of particular states and countries, 540-603.

REPORTS,
provisions for making in will, 400.

REPRESENTATIVES,
defined, 171.
designation in will, 171.

REPROPOUNDING,
will once probated or rejected, 496.

REPUBLICATION,
at common law, 475.
by codicil, 478.
by execution of wills, 480.
defective will by properly executed codicil, 478.
effect of republication, 479.
necessity of strict compliance with statute, 476.
revival depending on intention of testator, 477.
under statutes, 475.

REPUGNANCY,
‘conflicting descriptions of property devised or bequeathed, 202.
in will, 154, 281.

REQUEST,
forms of request by testator, 1088-1091.
to confirm invalid devise, 981.
to executors as to cremation, 1120.
INDEX 1019

[References are to Sections.]
RES GESTA,
evidence on contest of will, 533,

RESIDENCE,
conditions in will as to residence of beneficiary, 292.
form of devise of residence as home for testator’s family, 784.

RESIDUARY CLAUSE,
effect of residuary clause blending realty and personalty, 327.
lapsed legacy, 308.
necessity of safeguarding against lapse, 313.
to prevent lapse, 313.

RESIDUARY DEVISES AND LEGACIES,

after-acquired property, 143.

forms, 687-703. .
clause excluding son from share in residuary estate, 1130.
entire wills devising, 1176.

language of clause, 143.

nature and characteristics, 143.

property included, 143.

under laws of particular states and countries, 540-603.

RESIDUUM,
lapsed legacy, 308.

RESIGNATION,

provision in will for resignation of executors and trustees, 413.
RESTRICTIONS,
See Conpitions AND Restrictions.
form of clauses imposing in wills, 890-909,
power to give to charitable and religious uses, 78.

RETROACTIVE EFFECT,
statutes on will duly executed, 51.

REVENUE STAMPS,
validity of will depending on affixing, 440.

REVIVAL,
See REPUBLICATION.

form of codicil reviving will revoked by marriage, 1148.
will depending on intention of testator, 477.

REVOCATION,

See REPUBLICATION.

act must be that of testator, 460.
alterations and additions, 156, 464. :
birth of issue under laws of particular states and countries, 540-603.
1020 INDEX

[References are to Sections.]

REVOCATION—Continued.
by birth of child, 47, 104.
by codicil, 463.
by death of sole legatee, 305.
by irreconcilable will, 462.
by marriage, 76.
by operation of law, 460.
by oral declarations, 460.
by subsequent will, 462.
by writing not testamentary in character, 461.
capacity to revoke, 460.
changes in condition or circumstances of testator, 466.
contract to make will; 33.
deed to take effect at death, 5.
distinguished from ademption, 469,
divorce, 468.
effect of alteration of will, 452.
form of codicil revoking a former will previously revoked, 1160.
forms of codicils revoking wills and bequests, 1157-1162.
revocation of bequest to child, 1112.
general rules, 460.
instrument revoking will not a will, 13.
joint or mutual wills, 470.
laws governing revocation of wills, 47.
marriage and birth of issue, 47, 467.
marriage settlements, 6.
methods, 460.
mutilation, cancellation or destruction, 464.
mutual wills, 28.
necessity that instrument be executed with formalities of will, 461.
power of testator, 460.
probate, 509.
sale or conveyance of property, 469.
trusts, 4.
under laws of particular states and countries, 540-603.
will by guardian of incompetent testator, 460.
wills under civil law, 558. ‘

RHODE ISLAND,
statutes governing wills, 581.

RHODES, CECIL JOHN,
will, 1258.

RHODES’ SCHOLARSHIPS,
provisions under Rhodes’ will, 1258.

RIGHTS OF ENTRY,
disposal by will, 66.
INDEX 1021

[References are to Sections.]
ROUMANIA,

treaty affecting disposition and transmission of property, 640.

RULE AGAINST PERPETUITIES,

See Prrpetultiss.

RULE IN SHELLEY’S CASE,

See SHELLEY’s CasE.

RULE IN WILD’S CASE,
See Witp’s Case.

RUSSIA,
treaty affecting disposition and transmission of property, 641.

S
SAGE, RUSSELL,
will, 1259.

SAILORS’ WILLS,
validity under laws of particular states and countries, 540-603.

SALES,

direction in will for sale of realty to pay debts, 392.

disposition by will of contracts to convey or purchase, 69.

effect of sale of property to revoke will, 469.

form authorizing sales to executors, 1057.
assignment by way of sa.e of a legacy, 1181.
clauses empowering executors to sell realty, 1058-1061.
conferring power on trustees to sell real estate, 997.
conferring power on trustees to sell trust property with advice

as to management, 996.

direction for sale of real estate and distribution of proceeds, 1214.
power to trustees to sell personal estate, 997.
will directing sale of realty by executor, 1192, 1193.

power to make, 367. %

provisions in will for sale of realty to pay debts, 392.

revocation of will by sale of land devised, 469.

right to sell under testamentary power, 380.

SALVATION ARMY,
form of bequest, 881.

SASKATCHEWAN,

statutes governing wills, 602.

SATISFACTION,
legacies, 434.
provision in will for satisfaction of legacies, 434.
1022 INDEX

[References are to Sections.]
SAVINGS BANKS,
delivery of books as gift causa mortis,
deposits do not pass under bequest of accounts, 220.

SAXONY,
treaty affecting disposition and transmission of property, 642.

SCHEDULE,
property in will of Robert E. Lee, 1257.

SCHOLARSHIPS,
provision under Rhodes’ will, 1258.

SCHOOLS,
See CoLLeceEs.

bequest for support of academy in will of Washington, 1261,
designation of beneficiaries in wills, 187.
form of bequest, 1239.

to town for school purposes, 877.

SCOTLAND,
statutes governing wills, 603.

SEALED WILLS,
under civil law, 20.
under laws of Louisiana, 558.

SEALS,
necessity on will, 440.
to declaration of trust, 4.

SEAMEN,
mariners’ wills, 22.

SECRET TRUSTS,
creation, 342,

SECRET WILLS,
under civil law, 558.

SECURITIES,
See Bonps; Mortcaces; Notes; Stock.

description in wills, 219.
provisions for auditing in will, 401.
what included, 219.

SENILE DEMENTIA,
effect on capacity to make will, 84,
INDEX 1023

[References are to Sections.]
SEPARATE INSTRUMENTS,
construction as one will, 151.
incorporation in will by reference, 152.

SEPARATE SHEETS OF PAPER,
parts of same will, 151.

SEPARATION,
See Divorce.
SERVANTS,
forms of bequests to servants, 704.

SERVIA,
treaty affecting disposition and transmission of property, 643.

SETTLEMENT OF ESTATE,
See Provisions FoR MANAGEMENT AND SETTLEMENT OF Estate,
conditions in wills against presentation of claims, 291.
testator’s wishes as to settlement of estate, 122.

SHARES,
See DesIGNATING BENEFICIARIES AND THEIR SHARES.
defined, 205.
designation in will, 194.
equality presumed, 194.
form of clause giving executors power to vote shares, 1065.
language descriptive, 205.
per capita and per stirpes, 194, 195.

SHELLEY’S CASE,
application of rule to wills, 41, 244.
application under laws of particular states and countries, 540-603.
creation of estate, 244.
forms of devises not within rule, 859.
rule of property, 244.
statement of rule, 244,

SHORT WILLS,
forms, 1186.
holographic will, 1188.

SHRINKAGE,

provision in will for payment of legacy in case of shrinkage, 395.

SIGNATURES,
attestation of wills, 446-451.
by mark, 442.
effect of alteration in interval between signatures, 451.
effect of imperfect or illegible signature, 442.
1024 INDEX

[References are to Sections.]

SIGNATURES—Continued.

effect of repetition, 444.

hand of testator guided by another, 442.

location, 444,

name of testator by another, 443.

necessity that wills be signed, 440.

place of signature of testator to will, 442.

testator on separate sheet of paper, 151.

testator to will, 442.

SIMULTANEOUS WILLS,
probate, 502.

SISTERS,
designation in will as beneficiaries, 177.
term usually means sisters of the whole blood, 177.

SITUS,
See Prace; Law oF THE PLace,
SLAVES,
emancipation under will of Washington, 1261.
form of clause emancipating slaves, 1256.

SMITHSONIAN INSTITUTION.
form of legacy, 1232.

SOBRIETY,
bequest on condition of sobriety of legatee, 1226.

SOLDIERS’ WILLS,
under laws of particular states and countries, 540-603.

SOLEMN FORM,
probate, 495.
under civil law, 20.
various methods of contest, 515.

SOLE TRADER,
disposal of property by will, 63.

SOUTH CAROLINA,
statutes governing wills, 582.

SOUTH DAKOTA,
statutes governing ‘wills, 583.

SPAIN,
mystic wills, 24,
treaty affecting disposition and transmission of propurty, 644.
INDEX j025

[References are to Sections.]
SPECIFIC DEVISES AND LEGACIES,

ademption, 434.
delivery in kind, 402.
distinguished from demonstrative, 140.
form of will, 1210.

bequeathing to children, 1212.
forms, 658-669.

provision for ademption of specific legacy, 916.
how satisfied, 139.
interest and profits, 139.
money, 139.
nature and characateristics, 137, 139.

SPECIFIC PERFORMANCE,
contracts to convey or purchase, 6l

SPENDTHRIFT TRUSTS,
creation under laws of particular states and countries, 540-603.
form of clauses creating, 969-971.
law governing construction, 45.

SPOLIATION,

See ALTERATIONS.
STAMPS,
necessity of affixing revenue stamps, 440.

STANFORD, JANE LATHROP,
will, 1260.

STATES,
beneficiaries under testamentary trust, 352.
form of will devising property in several states, 1218.
right to contest wills, 518.

STATUTE OF FRAUDS,
application to contracts to make or not make wills, 33.
application to execution of wills, 440.
application to revocation of wills, 460.

STATUTE OF LIMITATIONS,
bar to right to probate codicil, 520.
limitation of time to contest will, 520.

STATUTE OF WILLS,
provision governing revocation, 464.

STATUTES,

See Laws sy WHICH WILLS ARE GOVERNED; TREATIES AND CONVENTIONS.
digest ot statutes governing wills in different jurisdictions, 540-603.
effect of enactment after testator’s death, 51.

after execution of will, 50.

65—Tuomp, WILLS.
2:
1026 INDEX

[References are to Sections.]
STATUTES—Continued.

law in force at time of execution of will governs, 50.

laws governing wills, 40-51.

modifications of rule against perpetuities, 267.

necessity to authorize execution of will, 10,

prevention of lapse, 310.

regulation of testamentary powers, 377.

republication under statutes, 476.

retrospective effect of statutes conferring capacity, 50.

strict compliance with statutes governing nuncupative wills, 454.
with statutes regulating capacity, 77.

strict construction of statutes applying to revocation of wills, 460.
regulating formalities in execution of wills,’ 440.

uniform foreign probate law, 507.

STEP-CHILDREN,
designation in will as beneficiaries, 176.
generally held not covered by term children, 194.

STIPULATIONS,
in treaties with foreign countries, 610-649,

STOCK,
authority to purchase, 390.
description in wills, 218.
disposition by will, 56.
form of bequest of income from stock for life, 775.
form of specific legacy of corporate stock, 663.
instructions in will as to voting, 391.
necessity of care in description in will, 219,
power to collect dividends, 381.
rights of survivors in case of joint ownership, 7.

STREETS,
form of power given trustees to lay.out streets, 999,

STRICT CONSTRUCTION,
See STATUTES.

SUBSCRIBING WITNESSES,
See ATTESTATION ;. WITNESSES.

capacity to take under will, 107.

SUBSCRIPTION,
form of direction to subscribe for charitable object, 886.

SUBSEQUENT WILLS,
revocation of previous wills, 462.
INDEX 1027

[References are to Sections.]
SUBSTITUTION,
form of legacy to one or his children, 729,
lapse prevented by substitution, 311, 312.

SUBSTITUTIONAL LEGACIES,
forms, 679.
how satisfied, 142.
nature and characteristics, 142.

SUBSTITUTIVE APPOINTMENT,
form for appointment of executors and trustees, 1110.

SUCCESSION,
See IntESTATE SUCCESSION.

rights under treaties with foreign countries, 610-649,

SUGGESTIONS IN PLANNING AND DRAFTING,

attorney’s advice and explanation to testator, 123.

depositary of wills, 131.

inquiry concerning management and settlement of estate, 122,
objects of testator’s bounty, 121.
property and interests, 118-120.

inquiry into testator’s capacity, 124.

knowledge of testamentary law, 115.

precaution against fraud, undue influence and mistake, 125.

precautionary measures where contest is probable, 126.

selecting attesting witnesses, 127.

testator preparing his own will, 116.

testator’s instructions, 117.

testing will before death, 130.

the making of codicils, 128.

time employed in preparation, 129.

SUICIDE, :
validity of will, 82.
validity of will in contemplation of suicide, 14.

SUPERSTITION,
issue in contest of will, 529.

SUPPORT,
charging realty with payment, 323.
conditions in will, 295.
form of bequest for “comfortable support” of relatives, 992,
form of charge for support, 686.
form of conditional devise for support, 909.
trust to executors for support of children, 1209.
will charging property with support, 1205.
testamentary trust, 355.
1028 INDEX

[References are to Sections.]

SURVIVING BROTHERS AND SISTERS,
term does not include children of deceased brother or sister, 178.

SURVIVORSHIP,
construction of words defining, 284.
contingency in wills, 284.
effect to revoke will under laws of particular states and countries, 540-
603.
method of devolving property on death of owner, 1.
stocks, bonds and choses of action standing in joint names, 7.
transmission of property, 7.

SWEDEN,
treaty affecting disposition and transmission of property, 645.

SWITZERLAND,
treaty affecting disposition and transmission of property, 646.

T
TAXATION,
form of direction as to payment, 778, 1140.
of inheritance tax, 1141.

TECHNICAL WORDS,
language of wills, 158.
use criticized, 158.

TENANCY BY ENTIRETIES,
nature, 7.

TENANCY IN COMMON,
creation by will, 240.

TENANTS BY CURTESY,
See Curtesy.
TENANTS IN COMMON,
effect of death of one before testator to lapse gift, 306.
form of devise as tenants in common with cross limitations, 728.
joint will by tenants in common, 1183.
will devising to class as tenants in common, 1224.

TENEMENTS,
use of word to describe real estate, 210.

TENNESSEE,
form of devise of life estate with power of disposition by will, 817.
statutes governing wills, 584.

TERMINATION,
testamentary trust, 358.
INDEX 1029

. [References are to Sections.]
TESTAMENTARY CAPACITY,

See Capacity; Restrictions on TESTATOR.

aged persons, 84.

aliens, 79,

at what time capacity must exist, 76.

competency of physician witnesses to will, 127.

contest of will on ground of incapacity, 524.

convicts and persons guilty of crime, 82.

deaf, dumb and blind persons, 85.

delusions, superstitions, etc., as issue in contest of wills, 529,
drunkards and drug fields, 87.

duress and undue influence, 86.

execution of codicil, 76.

generally of capacity to make will, 75.

infants, 80.

issue in contest of wills, 529.

limitations and restrictions on capacity, 77.

married women, 81.

persons of unsound mind, 83.

restoration of capacity after period of incapacity, 76.
restrictions on power to give to charitable and religious uses, 78.
under Jaws of particular states and countries, 540-603.

TESTAMENTARY POWERS,
advancements under powers, 382.
appendant or appurtenant powers, 366.
apportionment of shares and exclusion of appointees, 375.
classification, 366.
general or special, 366.
creation, 368.
defined, 365.
delegation, 373.
discretion of donee, 372.
distinct from estate, 365.
estates or interests appointed, 376.
general rules, 365.
joint donees of power, 371.
powers collateral or in gross, 366.
power to lease, 378.
to mortgage, 379.
to mortgage, control, improve and invest, 381.
to sell or exchange, 380.
purposes, 367.
sales of property, 365.
species of agency, 365.
statutory regulation, 377.
‘1030 INDEX

[References are to Sections.]

TESTAMENTARY POWERS—Continued.
to whom appointment under power may be made, 374.
who may be donee, 369.
who may exercise power where no person designated, 370.

TESTAMENTARY TRUSTS,
See Trusts.

alienation or assignment of income by anticipation, 348.
application of payment of income, 349.
appointment of trustees by will, 411.
certainty as to terms, 341.
corporations as trustees, 350.
defined and distinguished, 335.
distinguished from charge on real property, 335.
from estate on condition subsequent, 335.
duration of trust term, 357.
effect of failure of purpose, 359.
effect of provisions for maintenance, support and education, 355.
essentials, 336.
estate or interest of cestui que trust, 353.
ex maleficio, 342.
implied from context of wills, 341.
intention of testator, 340.
legal title of property under trust, 335.
passive and active trusts, 343.
perpetuities, 346.
property subject, 344.
purpose, 337.
rights of creditors respecting trust funds, 356.
secret trusts, 342.
termination, 358.
by happening of particular event, 359.
time from which income to be estimated, 347.
title or interest of trustee, 351,
trust created for benefit of married woman, 354.
trustees’ bonds, 417.
trusts by precatory words, 339.
trusts for accumulation of income, 346.
what constitutes income from trust property, 345.
who may be a cestui que trust, 352.
who may be trustees, 350,
words creating, 338,

TESTAMENTS,
See WILLs.

defined, 8.
INDEX ‘1031

[References are to Sections.]
\TESTATORS,
defined, 8.
instructions to attorney in preparing will, 117.
preparation of his own will, 116.

_ TESTIMONIUM CLAUSES,
forms, 1145,

TESTS,
whether document a will or another instrument, 9.
wills before death of testator, 130.

TEXAS, :
statutes governing wills, 585.

THELUSSON ACT,
application to testamentary trusts, 346,

TIME,
competency of witnesses to will, 499.
r determination of class, 192.
duration of trust term, 357.
form naming time of payment of legacies, 1094.
forms of provisions as to time of vesting of estates, 844-862.
limitation of time to contest will, 520.
provisions in will for payment of legacies, 394,
vesting under statute against perpetuities, 269,
when capacity to execute will must exist, 76.

TITLE,
relation back on probate, 486.
under unprobated will, 486.

TRANSFER TAXES,
See INHERITANCE TAXES.

TRANSFORMED PROPERTY,
disposition by will, 58.

TRANSLATION,
to testator acquainted only with foreign tongue, 155.

TREATIES AND CONVENTIONS,
effect where inconsistent with provisions of local laws, 610.
with foreign countries affecting disposition and transmission of prop-
erty, 610-649. :
1032 INDEX

[References are to Sections.]
TRIAL,
See ProBaTe.

contest of will by jury, 530.

hearing where application not formally attested, 497.
procedure to establish and probate lost or destroyed wills, 504.
repropounding will once probated or rejected, 496.

TRIPOLI,
treaty affecting disposition and transmission of property, 647.

TRUST COMPANIES,
form of codicil providing for substitution of trust company as trustee,
1162.

TRUST DEEDS,
method of devolving property on death of owner, 1.

TRUSTEES,
See Executors, TRUSTEES AND GUARDIANS.

competency as witnesses to wills, 448.
donees of powers under will, 369-374.
form declaring that decision of majority of trustees shall be binding,
1033,
form of appointment of new trustee, 1113.
codicil providing. for substitution of trustees, 1162, 1163.
codicils relating to substitution of trustees, 1162.
legacies to trustees, 742.
provision fixing compensation, 1116
provision fixing liability, 1115.
provisions in wills for appointment, 1097-1118.
will giving wife power to appoint new trustees, 1175.
forms relating to payment of commissions, 1028.
provisions for exemption from personal liability for errors of judg-
ment, 415.
provisions in wills for bonds, 417.

TRUST FUNDS,
See TESTAMENTARY TRUSTS.

rights of creditors respecting, 356.

TRUSTS,
See Powers; TESTAMENTARY TRUSTS.

appointment of trustees by will, 411.

cestui que trust and interest, 352, 353.
creation by precatory words, 339,

declaration to devolve property of intestate, 4.
disposition of interests by will, 59.
INDEX 1033

[References are to Sections.]

TRUSTS—Continued.
distinction between trust and power, 365.
essentials of seal and acknowledgment, 4.
form conferring discretion in terminating trust, 988.
power on trustees to partition, 1029.
form of bequest of life interest in trust estate to widow charged with
maintenance of children, 935
‘bequest of securities belonging to testator to become trust furds
with power to change, 936.
form of clauses conferring powers on trustees, 996-1054.
clause for residuary trust to terminate at death of sons and their
wives, 965.
clauses creating trusts, 934-995.
declaration of trust, 995.
devise of real property to trustees for sale, 995.
general power of appointment of cestui que trust, 982.
legacy in trust for maintenance, 856-861.
power of appointment after termination of trust estate, 989.
providing for termination of trust on death of trustee, 1114.
specific gift of stock in trust for legatee, 664.
trust for son, 1227.
trust for son in will of John R. McLean, 1262.
trust to executors for support and education of children, 1209. +
trust to suppress sale of intoxicating liquors, 878.
ultimate trust, 983, 984.
will containing trust for wife and child with remainder to heirs
on failure of issue, 1201.
will creating trust for children, 1216.
will creating trust for son, income after death to his widow, 1226.
will placing remainder of property in trust for benefit of wife and
children, 1175.
lapse of devise in trust by death of trustee, 306.
laws governing trusts created by wills, 45.
provisions in will for application of proceeds of sale or mortgage of
trust property, 398.
provisions in wills for advances and payment of claims, 1225.
revocability, 4.
title or interest of trustee of testamentary trust, 351.
use of express trust to separate income from principal, 222.
what law governs construction, 45.
who may be trustee of testamentary trust, 350.

TURKEY,
treaties affecting disposition and transmission of property, 636.

TYPEWRITTEN WILLS,
validity under laws of particular states and countries, 540-603.
1034 INDEX

[References are to Sections.]

U

ULTIMATE TRUSTS,
forms, 983, 984.

UMPIRE,
provision for construction of will by umpire, 432.

UNBORN PERSONS,
See Arter-Born CHILDREN.

beneficiaries under testamentary trust, 352.

UNDUE INFLUENCE,
effect on validity of will, 86.
ground for contest of will, 524,
precaution against exercise by draftsman, 125,

UNIFORM LAWS,
foreign probate laws, 507.

UNINCORPORATED SOCIETIES,
capacity to take under will, 99.
designation in will as beneficiaries, 186.
right to gift where corporation bears same name as unincorporated
society, 186.

UNITED STATES,
beneficiary under testamentary trust, 352.

UNIVERSITIES,
See CoLLEcEs.

UNPROBATED WILLS,
rights and interests thereunder, 486.

UNSOUND MIND,
See Insane Persons.

capacity of person to make will, 83.
ground for contest of will, 524, 525.
issue in contest of will, 529.

USE,
See Trusts.
form of will bequeathing use, 1196.
gift of use in will, 243,

UTAH,
statutes governing wills, 586.
INDEX 1035

[References are to Sections.]

V
VACANCIES,

form for filling vacancies in board of trustees, 1109.

VENDOR AND PURCHASER,

See Sates,
VERBAL WILLS,
validity under laws of particular states and countries, 540-603.
VERMONT,

statutes governing wills, 587.

VESTED AND CONTINGENT ESTATE,
assignment and devise, 250.
condition or contingency on which interests vest, 253,
construction in favor of vesting, 252.
defined and distinguished, 250.
intention of testator respecting vesting, 251.
interest contingent because of contingency of person, 256,
marriage as contingency, 253.
vested interest subject to be divested, 258.
subject to open and let in, 257.
vesting indicated by form of gift, 255.
vesting under certain words of futurity, 254.
under testamentary trust, 353.

VESTED REMAINDER,
disposal by will, 64.
form, 846, 1208.

VICE-CONSULS,
duties in execution and probate of wills in foreign countries, 610-649.
duties in relation to wills of persons dying abroad, 610-649.

VIRGINIA,
statutes governing wills, 588,

VOID CONDITIONS,
in wills,,281.

VOID GIFTS,
provision in will, 435.

VOTING SHARES,
form of clause giving executors power to vote shares of stock, 1065.
instructions in will, 391.
1036 INDEX

[References are to Sections.]

W
WAIVER,
provisions of will by spouse under laws of particular states and coun-
tries, 540-603.

WASHINGTON,
statutes governing wills, 589,

WASHINGTON, GEORGE,
will, 1261.

WASTE,
liability of executor, 415.

WEST VIRGINIA,
statutes governing wills, 590.

WHAT LAW GOVERNS,
See Conriict or Laws.

capacity of corporation to take under will, 44.
construction of trusts, 46.

election, dower and disinheritance, 48.
inheritance taxes, 15.

interpretation of will, 45.

laws by which wills are governed, 40-51.
revocation of will by birth of issue, 47.
revocation of will by marriage of testator, 47.
rights of heirs expectant, 2.
separate wills in relation to parties in different jurisdictions, 29,
spendthrift trusts, 45.

trusts created by will, 45.

WIDOWS,
allowance on death of intestate, 2.
designation in will as beneficiaries, 172.

WIFE,
See Huspanp anp WIFE,
WILD’S CASE,
application to creation of estates, 245.
statement of rule, 245.

WILLS,
ancient origin of right to make, 10.
appointment of executor only, 30.
capacity of beneficiaries, 95-109.
charging specific property with payment of debts and legacies, 220-327.
conditions and restrictions, 280-297.
INDEX 1037

[References are to Sections.]
WILLS—Continued.
contest, 515-534.
contracts to make or not make, 33.
courts without power to import new provisions in will, 200.
defined, 8.
designating beneficiaries and their shares, 165-195.
digest of statutes, 540-603.
distinguished from deeds, 9.
distinguishing characteristics, 9.
duty to execute while faculties are unimpaired, 11.
effect of leaving child unprovided for under laws of particular states
and countries, 540-603.
estates or interests created and their mode of creation, 230-245.
execution, 440-454.
extracts from wills of famous persons, 1240-1262.
form and language, 150-159.
form of brief will giving all testator’s property to his wife absolutely,
1170,
entire wills, 1170-1233.
will devising fee simple to wife, 1189.
will made in two countries, 1217.
forms and precedents for particular clauses, 655-1164.
forms for incorporation of paper in wills by reference, 1143.
functions, 13.
inclusion of extraneous papers by reference, 488.
instrument revoking not a will, 13.
kinds and character of devises and legacies, 135-143.
kinds and classes, 20-33.
language descriptive of property devised or bequeathed, 200-222.
lapse and methods of preventing, 305-313.
laws by which wills are governed, 40-51.
method of devolution of property on death, 1.
miscellaneous provisions and recommendations, 430-435.
necessity that they be in writing, 440.
under laws of particular states and countries, 540-603.
objects of testamentary disposition, 14.
operative at discretion of another, 31.
probate, 485-509.
property subject to disposition, 55-67.
provision for establishment or continuation of business, 14.
for exemption from liability for loss in investments, 390.
for management and settlement of estate, 390-403.
respecting executors, trustees and guardians, 410-422.
reasons for making, 12.
reformation after testator’s death, 11.
republication and re-execution, 475-480.
revocation, 460-470.
1038 INDEX

[References are to Sections.]

WILLS—Continued.
by lapse, 305.
by subsequent marriage, 47.
right to make wills, 10.
not a property right, 10.
rule against perpetuities, 265-273.
separate wills in relation to parties in different jurisdictions, 29.
speaks as of date of testator’s death, 51.
solemnity and importance of instrument, 11.
strict compliance with statutes regulating capacity, 77.
suggestions in planning and drafting, 115-131.
testamentary capacity and restrictions on testator, 75-87.
testamentary powers, 365-382.
testamentary trusts, 335-359,
under treaties and conventions with different countries, 610-649.
vested and contingent estates and interests, 250-258.
whether date essential, 440.

WISCONSIN,
statutes governing wills, 591.

WITNESSES,

attestation of wills, 446-451.

attorney may be witness to will, 127.

beneficiaries under laws of particular states and countries, 540-603.

best evidence on probate of will, 498. :

capacity to take under will, 107.

capacity under civil law, 558.

competency of attesting witnesses, 448, 499.

as question of law, 528,

competency of creditors under laws of particular states and countries,
540-603.

competency of husband or wife, 448.

competency of subscribing witnesses in contest of will, 533.

competency under laws of particular states and countries, 540-603.

destruction of will, 464.

disqualification by interest, 448.

effect of incompetency under laws of particular states and countries,
540-603.

necessity that wills be witnessed, 440.

necessity that witnesses see testator subscribe, 445.

number, 448.

to paper revoking will, 461.

nuncupative wills, 454.

selection by draftsman of will, 127.

time of competency of witnesses to will, 499,

validity of devise to witnesses under laws of particular states and
countries, 540-603.

validity of gifts under laws of particular states and countries, 540-603.
W

INDEX

[References are to Sections.]
WOMEN,
gifts to separate use of females, 101.

WORDS,
See DEFINITIONS.
interchangeable use of words of devise and bequest, 135.

WRITTEN WILLS,
si characteristics, 21.

WURTEMBERG,
treaty affecting disposition and transmission of property, 648.

WYOMING,
statutes governing wills, 592.

Whole number of pages, 1122.

1039
 

KF 755 TH7

 

Author Vol.

Thompson, George Washington

 

Title Copy

The law of wills and the manner o

 

ee Tae

Date | Borrower's Name