• I THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW THE LAW OF WILLS THE LAWOF WILLS FOR STUDENTS BY MELVILLE MADISON BIGELOW Ph.D. Harvard BOSTON LITTLE, BROAVX, AND COMPANY 1898 Copyright, 1898, By Melville M. Bigelow. All rights reserved. T 53nibErsttg ^Prrss : John Wilson and Son, Cambuidge, U. S. A. PKEFACE. When asked some time ago to write a book on Wills for the Students' Series, I told my publishers, who are owners of the American copyright of Jarman on Wills, under the International Copyright Law, that I would try it if I could have free use of Jarman and my own notes to that work. How much the per- mission given has been used, the references to Jar- man, scattered up and down the present volume, in part bear witness. But a word or two need now be said. This book agrees with those who find an important place for legal theory in education for the bar. Chapter I., largely on the theory of wills in relation to the State, and Chapter XIV., largely on the theory of construc- tion, are only more express examples, because of their relative and intrinsic importance, of what more or less runs through the book. Whatever mode of instruction is pursued, whether the Harvard, which is powerfully modifying where it is not taking the place of other methods, or any other, the doctrines of the law should, I think, be taught in direct connec- tion with and in the light of legal theory. This book H^'«^ ;>'2S679 Tl PREFACE. is written in great part to enforce, and in some small way to illustrate, that idea. The purpose of the book is not merely to teach certain rules and doctrines of law, but, still more, to show in and through them the theory and spirit of the law as the very life of the State, and so to help on good citizenship. The law of wills will be found strong meat for the student, however it may be put before him. But all endeavor to aid the diligent has here been made. The divisions of the subject are, it is hoped, of a nature to be helpful ; they are strongly marked, and urged, when necessary, upon the student's attention. And while the general subject runs on in a continu- ous stream, side notes have been supplied as often as any turn of thouglit or particular illustration sug- gested. The student may thereby inform himself be- forehand, if he will, of what is going forward in the text. M. M. B. Boston, January 1, 1898. NOTE. The references to Jarmau are uniformly to the star paging of the last edition (Boston : Little, Brown, & Co., 1893). CONTENTS. PAGE Cases Cited xi PART I. INTRODUCTION. CHAPTER I. Theory of Post-Mortem Disposition: the State: Rise of Will-making 3 CHAPTER n. Wills since the Norman Conquest 23 PART II. THE NATURE OF A WILL. CHAPTER III. Elements of a Will : Definition 35 CHAPTER IV. ' Written Instrument ' 37 CHAPTER V. ' Executed and Attested ' 42 Vlll CONTENTS. CHAPTER VI. PAGE • Nuncupation ' 63 CHAPTER VII. ' Competent ' Testator 69 CHAPTER VIIL 'Voluntary Disposition' 81 CHAPTER IX. » Property ' 93 CHAPTER X. ' Competent ' Beneficiary 101 CHAPTER XI. * To take Effect after Death ' 105 CHAPTER XII. ' Meantime being Revocable ' 109 CHAPTER XIII. Republication 143 PART in. THE CONSTRUING OF A WILL. CHAPTER XIV. Construction 149 CHAPTER XV. Primary Construction: Interpretation .... 163 CONTENTS. ix CHAPTER XVI. PAGE Secondary Construction: Words 180 Sociate Words 181 Non-sociate Words 191 CHAPTER XVII. Secondary Construction: Words 206 General Words of Devise 206 General Words of Legacy 212 CHAPTER XVIII. Secondary Construction : Clauses 215 Certainty of Object and Subject 215 Certainty of Object 224 Certainty of Subject: Repugnancy 229 CHAPTER XIX. Secondary Construction: Clauses ' . 244 Vested and Contingent Interests 244 CHAPTER XX. Secondary Construction: Clauses 263 Conditions 263 CHAPTER XXI. Secondary Construction: Clauses 272 From what Time a Will speaks 272 CHAPTER XXII. Secondary Construction: Clauses 280 When Members of a Class take 280 CHAPTER XXIII. Secondary Construction: Clauses 302 Implication 302 X CONTENTS. PART lY. THE EFFICACY OF A WILL. CHAPTER XXIV. PAGE Conversion 331 CHAPTER XXV. Election 345 CHAPTER XXVI. Executory Gifts 350 PART V. THE PREMATURE END OF A WILL. CHAPTER XXVII. Lapse of Gift 357 CHAPTER XXVIIL Satisfaction op Gift 369 INDEX 377 CASES CITED. A. PAGE Aaron v. Aaron 61 Abbott, Jure 97 Abraham v. Wilkins .... 49 Acherly v. Vernon . . . 268, 269 Adams, In re 152 V. Adams 305, 307 V. Field 45 V. Jones 214 V. Robarts 259 V. Woolman .... 256, 257 Addington v. Smith .... 213 Additon v. Smith 314 Affleck V. James 337 Aikin v. Weckerley .... 55 Albee v. Carpenter 353 Alchin, In re 226 Alcock V. Sloper 343 Alder V. Beall 301 Aldin V. Johnson 115 Allen, In re 191, 281 V. Allen 97 V. Bewsey 139 V. Callow 365 V. Griffin 47 V. Jeter 58 V. Patton 317 Allison V. Allison 49 Almack v. Horn 298 American Bible Soc. v. Marshall 103 Amherst v. Donelly .... 251 Anding v. Davis . . . 110, 133 Andrew v. Andrew . . 254, 358 Andrews v. Partington . . . 287 Angermann v. Ford .... 266 Anonymous 176, 346 Anshutz V. jNIiller 277 Antioch v. Branson .... 198 PAGE Appling V. Eades 130 Armor's Estate 81, 82 Armstrong v. Armstrong . 45, 60 V. McKelvey 340 Armytage v. Wilkinson . . . 244 Arnault v. Arnault ... 85, 90 Arnold v. Arnold 213 V. Dean 314 V. Preston 203 Arthur v. Mackinnon .... 242 Artz, Ex parte 193 Asche V. Asche 335 Ash V. Ash 116 Ashburner's Estate . 299, 300, 301 Ashhurst v. Potter 178 Ashmore, In re 49 Asten V. Asten 161, 241 Attorney-Gen. v. Jones . . . 109 V. Lloyd 139 V. Tancred 102 V. Wax Chandlers' Co. . 94 Aulick V. Wallace 176 Aurand v. Wilt 65 Austin V. Oakes 137 Avery r. Pixley 120 Axford, In re 73 Ayling V. Kramer 94 Aylwin, In re 285 Ayres v. Ayres 57, 53 Avton V. Avton 285 B. Raacke «. Baacke 115 Baer, In re 245, 285 Bagle}' V. Blackmaa .... 48 V. Mollard 203 Xll CASES CITED. PAGE Bagot, Inre . . . . ' 240, 320, 321 Bailey v. Bailey . . . 3C, 42, 300 V. Sanger . . . . . . 236 Bainbridge v. Ashburton . , 210 Baird v. Baird . . . . . . 219 Baker's Appeal . . . . . 60, 317 Baker v. Baker . . . , . . 46 V. Uodson . . . . . . 64 V. Hacking . . , . . . 93 V. Thompson . . . . . 233 Balcom v. Hajmes . . . 300, 301 Baldwin v. Spriggs . . . 115 Ballentine v. De Camp . . 168 Balm V. Balm . . . . . 289 Balton V. Watson . . . . 128 Bancroft v. Fitch . . . . 299 V. Otis .... . . 89, 91 Banks v. Goodfellow . . . . 78 V. Thornton . . . . . 274 Bannister v. Bannister . . . 74 Barber, Inre . . . • . . 9 V. Barber . . . . . . 365 Barclay v. Maskelyne . . . . 139 Barnard v. Barlow . . . . . 303 Barnes v. Barnes . . . . . 58 V. Patch . . 174 Barnett v. Tugwell . . . , 202 Barnum v. Baltimore . . . . 229 Barrel! v. Hanrick . . . . . 39 Barrv v. Butlin . . . . . . 89 Bartlett, In re . . . . . . 312 Baskin v. Baskin . . . . . 50 Bassett v. Granger . . . . . 300 Batchelder, Petitioner 321, 367 Bates, Petitioner . . . . . 153 Batione's Appeal . . . . 345, 346 . . 314 Beachcroft v. Beachcroft . . . 202 Beck V. Burn . . . . . . 259 Becker's Estate . . . . . . 332 Bective v. Hodgson . . . . 311 Bedson, In re . . . . . . 285 Beem v. Kimberley . . . . 345 Behrens v. Bchrens . . . , 129 Bell V. Fothergill . . . . . 120 V. Hewitt . • . . . . 133 Bellas's Estate . . . . 151, 237 Belshaw v. Chitwood . . . . 119 Bence, Inre . . 97 PAGE Bennett v. Bennett 83 V. Evans 192 V. Jackson 64 V. Sherrod 130 Benson, Inre 367, 3(J8 V. Corbin . . 198, 199, 217, 230 V. Wright 277 Benyon, In 7-e 276 V. Benyon 325 Benz V. Fabian 230, 232, 233, 234, 242 Berberet v. Berberet .... 58 Berkeley v. Swinburne . . . 285 Bernsee, In re 53 Bethune v. Kennedy .... 343 Betts V. Harper 113 Beurhaus v. Cole 98 Bevan v. Cooper .... 315, 319 Bibb V. Penoyre 186 V. Thomas 121 Bibin v. Walker 305 Biddle v. Biddle 64 Bigelow V. Clap 299 V. Gillott 124 Biggs V. Andrews 338 V. McCarty .... 284, 285 Bill V. Payne " 299 Billings, In re 40 Billingslea v. Moore .... 266 Bills V. Putnam 214 Bingham, In re 317 Birch V. Birch 128 Bird, Inre 332 V. Marklee 228 V. Pickford 97 V. Pope 110 Birdsall v. Hewlett .... 261 Birmingham v. Lesan . . . 268 P>irt, Inre 46 Bishop V. Cappel 283 Bisson ». West Shore R. Co. . 285 Black V. Richards 113 Blackman v. Fysh . . . 286, 351 Blake's Estate" ...... 314 Blake V. Blake 49 V. Knight 49 Bland V. Lamb 321 Blaney, In re 348 V. Blaney 316 CASES CITED. XIU Blaun V. Bell . . Blass V. Helms . . Board of Education v Boards, In re . . Bodvviu, In re . . Bohauan v. Walcot Boies's Estate . . Boisaubiu v. Boisaubin BoUes v. Smith . . Bolman i'. Lehman Boofter v. Rogers . Booker v. Allen Booth, In re . . V. Booth . . Boraston's Case Boreham v. Bignall Boston Safe Deposit Co. v. Cof- fin Bowditch V. Ayrault Boweu V. Dorrauce Bovvers v. Porter . Boyd V. Cook . . Boj-dell V. Golightly Boyle V. Boyle . . Boj's V. Boys . . Boyse v. Eossborough Braddock, In re Bradford r. Brinley Bradhurst v. Field . Bradish v. Gibbs . V. McClellan . Bradley's Estate . Bradley r. Carnes . Bradstreet v. Clarke V. Supervisors . Bragaw v. Bolles . Bramell v. Cole . . Brandon v. Aston . Braybrnke r. Inskip . Breathitt v. Whittaker Bridwell v. Swank Briggs V. Briggs V. Carroll . . r. Penny . Brigham r. Winchester Brill V. Wright . . Brimmer v. Sohier Bristol V. Bristol Britten v. Thornton Ladd 232 PAGE . 343 . 285 . 277 . 315 . 240 . 123 . 93 . 92 . 299 345, 340 . 65 . 144 . 45 . 202 . 252 . 270 176, 177, 303 247, 249 , 213 . 177 . 123 . 282 129, 151 . 342 83, 84 . 52 . 213 . 303 . 71 . 135 . 285 . 230 . 219 . 104 324, 325 . 234 287, 288 . 210 . 113 . 89 . 275 . 315 . 151 . 98 . 315 . 60 . 108 . 245 308 Broadway Bank v. Adams Bromtield v. Crowder Bromley v. Wright Brooke, In re . . Brookhart v. Small Brooks, In re . . V. Kip . . . Broome v. Moncke Brothers v. Carlwright Brown v. Beaver . V. Brown . . V. Clark . 58, 60, 114, 110^ V. Concord . . V. Gellatly . . V. Gilbert Hospital V. Higgs V. Knapp . • V. Lippiucott . V. Thorudike . V. Ward . . Browne v. Hammond V. Hope . . . Brush V. Brush . . Brj-son v. Hclbrook Bubb V. Yelverton . Buchanan v. Lloyd Budd V. Haines Bugbee v. Sargent Bull I". Comberbach Bullard v. Shirley Bund V. Green . . Burbank v. Burbank I". Whitney Burkhart v. Gladish Burleigh v. Clough Burleyson v. Whitley Burns v. Burns . . I'. Travis . . Burr V. Smith . . Burrell v. Baskerfield Burrows, In re . . Burt V. Hellyar . • V. Herron . . Burton, In re . . V. Conigland . V. Mount . . V. Newberj' Burtonshaw v. Gilbert Butler V. Moore . . 130, 133, 78 285, 313, 319, 220, 229, 60, 141 PAGE 231 253 259 317 319 90 312 100 332 39 132 145 267 343 302 239 314 245 135 1, 79 252 361 133 191 266 133 299 345 160 358 361 227 102 78 233 264 123 135 102 337 171 174 152 311 245 343 142 125 219 XIV CASES CITED. PAGE Buzby'8 Appeal 278 Byers v. Hoppe 108 Bj-rnes v. Baer 275 c. Cadge, In re ]28 Cady V. Cady 314 Caeman v. Van Harke . . . 125 Cahill, In re 86 Caldwell v. Willis 176 Calvert v. Sebbon 266 Cambridge v. Rous .... 321 Cameron, In re . . . . 190, 235 Campbell v. Campbell . . 7i, 75 V. French 139 V. Prescott 189 V. Rawdon . 193, 194, 284 Canada's Appeal 47 Carlton v. Cameron .... 108 Carne v. Roche . . . 165, 194 Carper v. Crowl . . . 347, 348 Carr v. Estabrooks .... 327 Carroll v. Bonham ... 64, 66 V. Carroll 98 V. House 83 Carter v. Bentall 193 V. Board of Education 321, 368 Casey v. Casey 268 Cashman, In re 231 Casson r. Dade 56 Castner's Appeal . . . 171, 177 Castor V. Jones 108 Catlett V. Catlett 45 Cato V. Gentry 319 Caton V. Caton 110 Caulfield v. Sullivan . . . 345, 346 Cavan v. Pulteney 347 Chaffers v. Abell 256 Chamberlain v. Chamberlain . 103 V. Taylor 332 Chambers v. Brailsford . . . 223 Champion, In re 143 Chandler v. Pocock .... 339 Chapin, Petitioner 334 V. Parker 136 Chapman v. Blisset .... 293 V. Chapman 247 Chappell V. Trent 83 PAGE Charlton v. Miller lio Chase y. Ladd 231,233 V. Kittredge 42, 44, 49, 53, 56, 57 Chase v. Warner .... 314, 315 Cliasmar v. Bucken .... 284 Cheese v. Lovejoy 122 Cheever v. North 129, 135, 136, 137 Cheney v. Seluian 360 Children's Aid Soc. v. Johnston 228 Christian, Jn re 52 V. Devereux 267 Christmas v. Whinyates ... 127 Church V. Church .... 364, 367 Chwatal v. Scbreiner .... 167 Claflin v. Ashton 219 Clark, In re 44 V. Dounorant 58 V. Jetton 370 V. Phillips 364 Clarke, /w re 42 V. Clarke . . . 157, 221, 288 Clarkson v. Clarkson .... 125 Clay V. Wood 152 Clayton v. Akin 374 Cleaver v. Cleaver 153 Clement v. Hyde 102 Clergy Society, In re . . . . 226 Cleveland, hi re 155, 161, 332, 334, 339, 340 V. Spilman 42 Cliffe V. Gibbons . . . 185, 187 Clifford ». Koe 177 Clift V. Moses 313 Clifton V. Clifton 76 Cloud V. Clinkenbeard ... 326 Clowes, In re 210 Cock V. Cooke 107 Cockayne, In re 123 Cockerell v. Barber .... 266 Cockran v. Cockran .... 273 Cody V. Bunn 178 Coffin V. Coffin 47, 53 Coffman v. Coffman .... 108 Coit V. Patchen 83 Cole V. Turner 317 Coleman, In re 364 Coles, In re 107 V. Ayres 195 CASES CITED. XV PAGK Collagan v. Burns 130 Collier, In re 252 V. Walters 155, 156, 157, 236, 237 Collins V. Bergen 3G4 V. Collius . . . 236, 3U, 3G7 t'. Wickwire .... 230, 233 Collup V. Smith 133 Collyer V. CoUyer 130 Colvin V. Warlord 131 Colwell 17. Alger 264 Couiassi, In re 113 Combs V. Jolly 49 Comfort V. Mather 361 Commonwealth v. Hackett . . 275 V. Nase 301 Conant v. Bassett 312 Conger v. Lowe 230 Congregational Soc. v. Hatch . 225 Conklin v. Davis 301 Conley r. Nailor 83 Connor, In re 202 Converse v. Converse ... 76, 77 Conway, In re 46 Conway's Estate 178 Cook r. Catlin 300 V. McDowell . . 255, 256, 259 V. Winchester 56 Cooke, In re 337 V. Lambert 43 Cookson V. Reay 337 Coombs, In 1-e 46 Cooper V. Bockett 128 V. Cooper 333 Copeland v. Barron . . . 231, 237 Copp V. Hersey 313 Coppard, In re 291 Cormick v. Pearce 337 Cotton V. Ulmer 78 Cottrell, In re 50, 58 Covent V. Sebern 219 Cover V. Stem 108 Cowdin V. Perry 252 Cowley V. Hartstonge .... 337 Cox i\ Wills 151, 153 Craft's Estate 113 Craig V. Leslie 104 Cramer v. Crumbaugh ... 87 Crane v. Bolles 197, 245, 281, 294, 311, 332, 366 PAGE Crause v. Cooper 306 Crawlbrd v. liedus 2U9 Crawshaw v. Crawshaw . . . 324 Creasy v. Alverson . , , . 217 Crocilius v. Horst ..... 303 Crerar v. Williams .... 321 Cressler s Estate 152 Crews V. Hatcher . . . 178, 247 Crook r. Hill 171 Crosbie v. Macdonal . 140, 141, 142 Cross I'. De Valle 104 Crossmau v. Crossmau . . . 129 V. Field 245 Crowe V. Crisford 343 Crowther, In re 310 Crozier v. Bray 138 Cruikshank v. Home for Friend- less 367 V. Parker 310 Crum V. Bliss 357 V. Sawj-er 113 Cruse V. Howell 365 Cruwys v. Colman 176 Culsha V. Cheese 362 Cummings v. Stearns .... 95 V. Stewart 93 Cunningham, In re ... . 130 Cunningham's Estate .... 346 Cunningham u. Davis . . . . 108 V. Moody 334 V. Parker 94, 263 Curling v. May 338 Carrie v. Pye 325 Cushman v. Horton .... 194 D. Dale's Appeal 89, 90 Dale V. Dale 90 V. White 200 Dallmeyer, In 7-e 157 Dalrymple i'. Gamble .... 214 Dancer v. Crabb 127 Danvers v. Clarendon . . . 281 Darbison v. Beaumont , . . 165 Darcy v. Kelley 227 Darker v. Darker 287 Darlow v. Edwards .... 276 Darnell v. Buzby .... 47, 57 XVI CASES CITED. PAGE Dascomb v, Marston .... 229 Daveuport v. Haubury . . . 107 Daverou, In re 07 Davers v. Dewes 323 Davidson v. Coon 319 Davidson College v. Chambers 103 Davis V. Angel .... 270, 271 V. Callahan 177 Calvert 75 Davis 242 Fogle 115 Hoover 219 Mailey 235 V. Semmes 51 Dawson, Jn re 96 V. Dawson .... 327, 373 V. Schaefer 165, 167, 177, 192, 245, 250, 252, 254, 255, 259, 284 Day, Ex parte .... 110, 113 V. Dav 178 V. V. V. V. V. Deakin, Jn re . . Dean v. Dean . . V. Mumford V. Negley . . De Camp v. Dobbins Deering v. Adams . Delafield v. Parish . Delaney v. McCormack V. Salina . . Den V. Milton . . Denby, fn re . . Denning v. Butcher Denson v. Beazley . Denton, In re . . V. Franklin De Silver's Estate . Deupree v. Deupree De Vaughn v. McLeroy Dewey v. Dewey . Dewitt V. Yates . . Dey V. Williams Dickernian v. Edinger Dickie v. Carter Dickinson v. Purvis V. Swatman Dickison v. Dickison Dickson v. Montgomery Diez, In re . . , Diggles, Inre . . 198 153, 203 47, 350, 351 . 311 85, 91 . 103 303, 311 . 75 . 258 . 75 . 49 . 266 . 74 78, 79 199, 245 85, 90 . 308 58, 59 . 340 47, 48, 49 325 326 302 90 361 127 219 102 113 152 218. PAGE Dillon V. Falloon 232 Dix V. Keed 266 Dobson, Inre 267 Dockum V. Robinson .... 65 Dodge V. Gallatin .... 98, 99 V. Pond 337 V. Williams . . . . . 337 Dodson V. Hay 334 Doe V. Burnsall 197 V. Dacre 247 V. Davies . . 222, 236, 237 V. Edlin 367 V. Evans 189 V. Ewart .... 193, 252 V. Fossick 209 V. Hallett 298 V. Harris .... 122, 123 V. Joinville . . . 173, 226 V. Laiuchbury 189 V. Moore 252 V. Nowell .... 252, 253 V. Palmer 128 V. Perks 123 V. Rout 187 V. Sheffield 363 V. Weatherby 209 Dole V. Johnson 213 Donn V. Penny 239 Donnelly v. Broughton . 86, 88, 89 Donohoe v. Lea 133 Dorin v. Dorin 204 Dorsey v. Sheppard .... 65 Dove V. Johnson . . . 363, 364 V. Torr 282 Dow V. Doyle .... 362, 363 Dowd V. Tucker 39 Downe}^ v. Borden . ... 234 Downing v. Marshall .... 360 Dowse, In re 42 Dowset V. Sweet 217 Drake v. Drake 167 Drayton's Appeal 337 Drew V. Drew 216 V. Wakefield . . . 153, 283 Du Bois V. Ray 178 Duckmanton v. Duckmanton . 241 Duckworth v. Butler .... 370 Dudd}' V. Gresham .... 270 Dudgeon v. Dudgeon .... 318 CASES CITED. XVll PAGE Dufour V. Pereira 113 Dugau V. Hollius 371 Duke, In re 259 Dunn i;. Dunn .... 46, 319 Durant v. Smith 152 Durham v. Smith 75 Dyer, In re 40 V. Dyer 53 Dyson, In re 314 E. Earlom v. Saunders .... 336 East V. Garrett 177 Easum 0. Appleford .... 321 Eaton V. Hewitt 251 Eberhardt v. Perolin . . . 151 Eddowes V. Eddowes .... 298 Edgeworth v. Edgeworth . . 265 Edwards, In i-e 284 V, Astley 41 V. Barnes 189 V. Bibb 168 V. Warwick 339 Egerton v. Browulow . 269, 270 Ela V. Edwards 49, 58 Elcock, In re 279 Eldridge v. Eldridge . . 256, 2G2 Eliot V. Eliot 58 Elkinton v. Brick . 47, 48, 58, 83 Elliot, In re 230 V Elliot 291 V. Fessenden . . . 153, 360 Elliott V. Dearsley 315 V. Fisher ." 334 Ellis V. Page 316 V. Throckmorton . . 177, 219 Ellison V. Airy 295 Elms V. Elms 123 Emerson, In re 43 Emery, Appellant 116 Emuss V. Smith 333 Eneberg v. Carter 308 England v. Prince George Parish 213 Engles's Estate .... 252, 255 Ennis i*. Smith ]81 Eschbach v. Collins ... 59, 124 Etches V. Etches 251 Evans v. Arnold ..... 78 PAGE Evans v. Ball 336 V. Field 324 V. Folks 234 V. Harris 291 V. Jones ....... 322 17. Smith 113 Everett v. Carr 277 Ewing V. Winters 245 F. Fabens v. Fabens .... 156, 191 Fahnestock v. Fahnestock . . 332 Fairfax's Appeal 244 Fargo c. Miller . . . 164, 280, 282 Parish j;. Wa3'man 232 Farley v. Farley 57 Farnam v. Farnam . . . 244, 255 Farrar v. Winterton .... 133 Fatheree v. Lawrence .... 58 Fell V. Biddolph 364 Fellows V. JMiner 229 Person v. Dodge 303 Fidelity Trust Co.'s Appeal . 113 Field V. Hitchcock 353 Finch V. Lane 253 Fincham v. Edwards .... 73 Firth V. Fielder 276 Fish, In re ... . 153, 228, 240 Fisher v. Hepburn 189 V. Spence 50, 51 Fissel's Appeal 300 Fitzhugh V. Hubbard .... 345 Fitzpatrick v. Fitzpatrick . . 217 Flemming v. Barrows .... 189 Flinn v. Owen 53 Fiintham v. Bradford .... 131 Flippin V, Banner 348 Flood V. Pragoff .... 46, 47 Fluck V. Rea 74 Flummerfelt v. Flummerfelt 98, 275 Forbing v. Weber 125 Ford V. Ford 124 Fosdick V. Hempstead . . . 228 Foss V. Crisp 104 Foster's Appeal 90 Foster v. Holland 255 V. Smith 38, 230 Fowler r.Duhme .... 98,198 XVlll CASES CITED. Fowler v. Ingersoll 199 Fox V. Fox .... 261 Francis Estate . . . 243 Franks v. Biooker . . 276 V. Chapman . . 53 V. Price .... 248 Fraser v. Jennison . . 78 V. United Presbyterian Church 337 Freeland v. Pearson .... 357 Freeman v. Coit . . . 236 V. Parsley . . . , 1-68 Freme's Contract, In re 135, 137 Frey v. Thompson . . 250, 251 Fritz V. Turner . . . 42, 43 Frost V. Courtis . . . . 299 Fuller V. Winthrop . 260 Fulton V. Fulton . . . 349 G. Gabb V. Prendergast Gable v. Daub . . Gage V. Gage . . Gains v. Gains . . Gallagher v. Crooks Gardiner v. Gardiner V. Slater . . . Gardner v. Gardner V. Heyer . . Garland v. Smiley 255 Garratt t'. Niblock Gaskins v. Hunton Gaven v. Allen . Gay V. Gay . 114, 115 t'. Gillilan . • Gaylor's Appeal Geery v. Skelding . Gelbke v. Gelbke . George v. Green Gerhard's Estate . German v. German Geyer v. Wentzel . Gibbens v. Gibbens Gibbon v. Gibbon . Gibson V. McCall . Giddings v. Giddings Gifford V. Choate . V. Dyer . . . 259, , 118 139, 153, 129, 201, 261, 119, 140, 202 279 107 122 308 83 258 275 202 202 276 236 232 125 89 53 300 135 98 168 353 243 252 275 102 143 177 139 PAOE Gilbert v. Knox .... 48, 53 Giles V. Auslow 234, 237 V. Little 231 V. Warren 125 Gillham v. Mustiu 108 Gilliam v. Brown 373 Gillies V. Longlands .... 334 Gillmer v. Daix 236 Gilmer v. Stone 225, 226 Gilmur's Estate 38, 178 Gilmore r. Severn 291 Giuder v. Farnum 44 Gingrich v. Gingrich . . . 247, 208 Girard v. Philadelphia ... 98 Gittings V. McDermott , . . 359 Glass V. Dunn 213 Glover v. Stillsou 231 Godfrey v. Davis 201 Going V. Emery 310 Gold V. Judson 275. 277 Gooch V. Gooch 214, 2UG Good V. Fichthoni 237 Goodier v. Edmunds . . .97, 332 Goodright v. Forrester ... 93 V. White 1G6 Goodsell's Appeal 115 Goodwin v. McDonald . . . 302 Gordon v. Whitlock 131, 135, 136, 137 Gosling V. Gosling .... 231, 255 Gould V. Mansfield V. Safford . . Graham v. Graham V. Koseburgh . Gra3''s Estate . . Gray v. Hattersley V. Minnetbor[)e V. Pearson . . V. Sherman . . Green v. Stephens . V. Tribe . . . Greenough v. Cass V. Rothwell . . Greenwicli Hospital, In Greville v. Tylee . Griffen v. Ulen . . Griffin v. Brooks Griffith V. Diffenderffer Griffiths V. Pruen . . 110,111 . 64 55 327 177 373 323 272 218 177 136 334 142 176 106 190 128 167 124 82 267 CASES CITED. XIX PAGE Grimball r. Patton .... 138 Grimes i'. Harmon 227 Grimm v. Tittman .... 48, 53 Gromie v. Louisville Orphans' Soc 103 Gross's Estate 364 Grout V. Hapgood 303 Groves v. Cox 312 Grubb's Estate 44 Guilfovle, In re 42 GuUan, In re 120 V. Grove 120 Gurley v. Park 83 Guthrie v. Price 73 H. Haack v. Weichen 345 Habergham v. Vincent . 60, 61, 107 Haggerty v. Hockenberry 255, 256, 257, 259 Hale i: Hale .... 97, 110, 311 V. Hobson ... 97, 220, 246 V. Marsh 232 Hall V. Hall . 104, 168, 190, 285 V. Hancock 171 V. Hewer . . . 295 V, Lietch . . . . . 307 t'. Priest . . . . . 353 V. Smith .... , 363, 364 Hallowell r. Hallowell . . 46 Hallvburton v. Carson . 138 Halsted v. Westervelt . . 318 Halterslev V. Bissett . . . 345 Hamilton, In re . . . 152 V. Fletcher . . . 55 V. Porter . . . . 319 V. Ritchie . . . . 162 Hamlin v. Mansfield . 98 Hammer's Estate . . 213 Hampton v. Hardin . . 51 V. Westcott . . . 72, 83 Hand r. IMarcv . . . 359 Hanswyck v. Wiese . . 42 Harbin v. Masterman . 231 Hargroves v. Redd . 119, 279 Harland i'. Trigg . 173, 174 Harley v. State . . . . . 104 Harrington v. Steers . . 66 PAGE Harris v. Anderson .... 285 V. Davis 2o9 V. Fly 261, 319 V. Paj'ner 344 Harrison, /« re . . . . 49,202 Hart V. Hart .... 114, 115 V. Stoyer 219 Hartley, In re 276 Hartman v. Strickler .... 86 Harvard Soc. v. Tufts . 213, 374 Harvey v. Anderson .... 89 Harwell i'. Lively 131 Haseldine, In re 202 Hasenritter v. Hasenritter . . 348 Hasluck V. Pedley 279 Hassam v. Hazen 321 Hastead v. Searle 224 Hauenstein v. L3'nhara . . . 104 Haus V. Palmer 60 Haven v. Foster 144 Havens v. Sackett . . . 345, 346 r. Van Den Burgh 114, 115, 116 Haward v. Peavey 339 Hawes v. Foote 177 V. Humphrey 51 V. Nichols ". 131 Hawke V. Chicago R. R. . . 38 Hawkes v. Hawkes .... 41 Hawkins's Trust 2G6 Hayden v. Stoughton .... 367 Haves t'. Haves 213 \'. King" 300 Hazeltine v. Vose 225 Heald v. Heald 176 Healey v. Reed 103 Heard v. Horton . . . 193, 194 Heath v. Knapp 210 Heatherington v. Lewenberg . 314 Hebdcn, In re 65 Heck's Estate 2-36 Heilman v. Heilman .... 259 Henderson v. Blackburn . . 242 V. Henderson 340 V. Ryan 275 Henfrey v. Henfrey .... 138 Kenning r. Varner .... 222 Henry v. Thomas . . . 300, 301 Hensier v. Senfert . . . 232, 312 Hereford v. Ravenhill . . . 337 XX CASES CITED. PAGE Hesdra, In re 57 Heslop V. Gatton . . . 313, 319 Hesterberg v. Clark .... 124 Hibbs V. Ins. Co 345 Hibler ». Hibler . . 213,313,314 Hickman, In re. .... 35, 36 Hiestand v. Me3-ers .... 299 Higgins, In re 57 V. Carlton 42 Hildreth v. Marshall 47, 48, 49, 53, 57, 80 Hill V. Bacon 275 V. Bowman 225 V. Chapman 286 V. Crook 202 V, Downes 176 V. Hill 168 Hills V. Barnard 197 Hind V. Selby 343 Hindman v. Van Dyke ... 84 Hindson v. Weatherill ... 87 Hise V. Fincher 122 Hitchcock V. Shaw .... 51 Hixon V. Wythara .... 106 Hobart v. Hobart 143 Hobbs V. Knight . 118, 119, 120 Hobson V. Blackburn .... Ill V. Hale 97 Hock's Estate 301 Hodges V. Peacock .... 325 Hodgnian, In re 312 Hoffen, In re 228 Hogan, In re 57, 58 V. Grosvenor 48 Hoitt y. Hoitt .... 119, 125 Holbrook v. McCleary . . . 367 Holford, Inre . . . . 289, 311 Holland v. Adams 339 V. Alcock 228 Hollingsworth v. Hollingsworth 220 Hollins V. Coonan 222 Hohiian v. Perry 71 Holmes v. Cradock .... 254 Holt V. Sindray 201 Homer v. Shelton . . . 218, 219 Hoodu. Haden 213 Hooker v. Axford 39 Hooper V. Hooper 363 Hoopes's Appeal 214 PAGE Hoopes's Estate 80 Hopson V. Skipp 171 Horlock, In re 158 Horsford, In re 43 Hortou V. Earle . . . 153, 299 V. Johnson 52 Horwitz V. Norris 177 Hosea v. Jacobs 357 Hoss V. Hoss 263 Hotham v. Sutton 213 Houser v. Kuffner 220 Hovey v. Chase 75 V. Darv 332, 339 V. Waibauk 232 Howard v. American Peace Soc. 102, 225 Howard v. Carusi 237 V. Peary 331 Howell V. Tomkins .... 332 V. Tyler 299 Howerton v. Henderson . . . 176 Howland v. Howland .... 190 V Slade 284 Hoxsey v. Hoxsey . . . 236, 237 Hoysradt v. Kingman ... 57 Hoyt V. Hoyt 315 Hubbard v. Alexander . . . 129 V. Hubbard 67 V. Lloyd 287 Huber's Appeal 243 Huddleston, Inre 206 Huffy. Huff 47 Hughes y. Ellis 239 V. Hughes 98 V. Pritchard 324 Humbertson v. Humbertson . 266 Humberstone v. Stanton . . . 362 Humble v. Shore 323 Humes v. McFarlane .... 93 Hunt V. Hunt 190 V. Scott 343 Hurd V. Shelton 161 Hurdle v. Outlaw .... 190, 214 Hurst V. Beach 325 Hutchins r. Hutchins . . . . 105 Hutchinson, In re 234 V. Fuller 213 V. Gilbert 314 Hvdet;. Hyde 126 CASES CITED. XXI ^* PAGE lasigi V. Shaw 231, 312 Ihrie's Estate 300 Illinois Land Co. v. Bonner . 270 Ilott V. Genge 48, 49 Ince, In re 140 Inglefield v. Uoghlan .... 137 Inman, In re ... 155, 171, 311 Israeli v. Rodon 115, 116 Ives V. Dodgson 325 Izard V. Hurst 144 J. Jacks V. Henderson .... 116 Jackson's Estate 245 Jackson v. Alsop 38 V. Betts 122 V. Delancey 210 V. Hamilton 241 V. Hardin 75 V. Housel 190 V. Jackson 49, 156, 167, 168, 170, 193, 195, 197, 198 V. Malin 129 V. Phillips 102, 227 V. Van Dusen 42 Jacob !'. Bradlej' 225 James, /« 7"e 155,157 V. Irving 322 V. Richardson 164 Jaques v. Swasey 370 Jeffrey, In re 289, 311 Jenkins, In re 43 V. Compton 231 V. Freyer 284 Jenks V. Jackson 219 Jenkyns r. Gaisford .... 44 Jenner v. Finch 57 Jervis v. Lawrence 26G Jesse V. Parker 52 Joceh'n v. Nott 98 Jodre'll, In re 153, 203 John V. Bradbury 308 Johns Hopkins y. Pinckney . . 138 Johnson's Estate .... 85,213 Johnson, In re 129 V. Brailsford 121 V. Johnson 53, 361 V. Whiton 191 PAOB Johnston, In re 231 Joiner v. Joiner 138 Jones's Appeal 285 Jones, In re 75 V. Beers 245 V. Creveling 325 V. Habersham . . . .44, 103 V. Henley 276 V. Hunt 299 V. Mackilwain 262 V. Moseley 119 V. Murphy 130 V. Robinson .... 216, 278 V. Southall 357 V. Strong 219 V. Tuck 55 Jongsma v. Jongsma .... 189 Jordan v. Fortescue .... 305 Joslin V. Rhoades . , 230, 231, 238 Judevine i'. Judevine .... 236 K. Kanouse v. Slockbower Kaufman, In re Kean v. Roe . . . Keay v, Boulton Kehoe, In re . . Keigwin v. Keigwin Keller v. Of:gobur_v Kellum, In re . . Kempton, Appellant Kendall v. Gleason V. Kendall . . Keniston v. Adams Kenebel v. Scrafton Kennedy i'. Kennedy V. Upshaw . . Kent V. Armstrong V. Dunham . . V. Maliaffy . . V. Morrison . . Kerr v. Doughertj' . Kessinger v. Kessinger Kevern v. Williams Kidder, In re . . Kidman v. Kidman Kimball v. Story . Kimberly, In re 217 83 299 359 60, 61 49 332 58 349 165 232 359 201 242 118 233 227 123 231, 233 103 85, 90 290 125 311 153 93, 299 xxu CASES CITED. PAGE Kimble v. White .... 236, 247 Kimpton, In re 46 King V. Burchell 190 V. Savage . . .167, 168, 300 Kingman r. Harmon .... 252 Kingsbury v. Wliitaker ... 78 Kinike's Estate 227 Kinkele r. Wilson . . , .136,161 Kinne v. Kinne 77 Kirkland v. Larramore . . . 266 Kirkpatrick v. Jenkins . . 38, 119 Knight v. Gould 365 Knotts V. Bailey 313 Knowlton v. Sanderson . . 192, 216 Knox's Estate 42 Knox V. Knox 151 Koegel V. Egner 74, 75 Konvalinka v. Gribel .... 339 V. Schlegel 349 Korf V. Gericho 93 Korn r. Cutler 190 Kramer v. Weinert ... 75, 76 Kurtz V. Hibner 217 L. La Foy v. La Foy 314 Lagrange Co. v. Rogers ... 102 Lahiff, In re 332, 339 Laid, fn re 119 Laing v. Barbour .... 190, 324 Laird's Appeal 171 Lamb v. Lamb 93, 368 Lambe v. Fames 234 Lam phier r. Buck . . . .294,366 Landy, In re 47, 49 Lane's Appeal 278 Langdale v. Briggs .... 236 Langdon v. Astor .... 62, 263 Langford, In re .... 38, 75 Lansing v. Haj'nes 113, 114, 115, 119 Laphamv. Clapp . . . .317,319 Lasher v. liasher 218 Laughton r. Atkins . . .126,130 Lautenshlager v. Lautenshlager 108 Lavery v. Egan 360 Lawr. Law .... 59, 124, 125 Lawes v. Bennett 333 Lawrence v. Crane . . . 191, 360 PAGE Lawrence v. Hebbard . . . 279 V. Smith 98 Lawton v. Corlies . . 164, 165, 192 Layman v. Convey .... 91 Leake v. Robinson , . 258, 260, 290 Leavitt v. Wooster .... 319 Le Breton v. Cook 93 Lee, In re 181 V. Gay 284 V. Pain 365 V. Tower 346 V. Welch 220 Leeds v. Shaw 227 Lefler v. Rowland 264 Leigh V. Leigh 365 Leighton v. Leighton .... 373 Le Kougetel v. Mann . . . 213 Leslie v. Rothes 236 Lett V. Randall 361 Lewis's Estate 74, 8-3, 89, 91, 219 Lewis V. Lewis ... 49, 50, 348 V. Matthews 266 V. Schofield . . , 112, 113 Lichtield v. Baker 344 Lide V. Lide 84 Lightfoot v. Burstall .... 323 Lilly V. Tobbein 229 Lingen v. Lowray 334 Lippincott's Estate .... 181 Lippincott r. Pancoast . . . 258 V. Wikoff 51 Little V. Willford 229 Lively v. PLirwell 129 Livingston v. Greene .... 252 Llewellyn, In re 343 Lloyd r. Rambo 193 Locke V. Lamb 258 Loder v. Hatfield 314 Logue V. Bateman . . 231, 232, 242 Lombard v. Willis .... 284 Lones, In re 131 Long V. Zook 42 Lord V. Godfrey 342 V. Lord .... 52, 349 Loring v. Coolidge 363 Lougheed v. Dykeman Church 229 I/Ovass V. Olson 245 Love V. Johnson 143 Loveday v. Hopkins .... 167 CASES CITED. XXlll Lovell V. Quitman Lovering v. Levering , Low V. Harmony . . V. Low . . . . Lowe V. Carter . . . V. Williamson . . Lowman, In re . . Luckett V. Wliite . . Lurie v. Radnitzer . . Lusliington v. Onslow Luxford V. Cheeks Lynne, In re , . . Lyon V. Acker 156 V. Industrial School Assoc. V. Lj'on Lyons v, Campbell M. 238, PAOE 59, 124 . 367 . 171 . 178 . 300 . 7-t 239 313 124 128 251 276 301 312 . . 201 83, 89, 91 McBride v. McBride . . . 119 McCall I'. McCall ... . 268 McCartee v. Orphans' Asylum 102 McClellan v. Larchar . . 237 McClure's Appeal . . . 338 McCIure, In re . . . . 236, 237 V. McClure . 85, 91, 118, 127 McCrea's Estate . . 191, 192 McCreery v. Allender . 104 McCulloch V. Campbell . , 75 McCurdy v. Neall . . . . 57 McDonald v. McDonald . , 129 V. O'Hara .... 332, 340 McDougall, In re . . . , 232 McFaddcn v Hefley . . , 213 McFai-land v. Bush . . , , 52 McGavock v. Piigsley , 275 McGraw v. Cornell . . , 103 McGreery v. McGrath 357, 362 l^IcHiigh V. McCole , . , 228 Mclntire v. Worthington . 126 Maci30, 234, 347 Wellford v. Snvder . . 237 AVinchester r. Forster . 272, 275 Wells. In re. . . . . 177 Wineland's Appeal . . . 46 V.Wells . . . . 133 Winn V. Bob . . ^ . . 64, G5 Welsh V. Woodbury . . 233 Winslow V. Goodwin . . 244, 246 West V. Rassman . . . 301 Winter, In re . . . . . 285 V. West .... 71, 360 Wintle, In re ... 2 58, 260, 261 Wescott V. Sheppard 72, 74, 75, 80, Wise V. Foote . . . . . 83 82, 83, 84 Witt V. Gardiner . . , . 56 Whall I'. Converse .... 278 Witter V. Mott . . . . . 119 Wharton v. Barker 282, 283 Wittman v. Goodhand . . 119 V. Durham . . . 371 ■\A'olf r. Schaeffiier. . . . 214 V. Masterman . . 247, 255 Wolfer V. Henimer . . . 232 Wheeler v. Durant . 107 Wood, In re .... 96, 97, 363 V. Whipple 89, 91 V. Bullard . . . . 165, 278 V. Wood . . . 213 V. Hammond . . . 103, 235 Whelen's Estate . . 138 V. Seaver . . . . . 191 Whipple V. Eddy . . 79 V. Wood .... . 174, 192 xxxu CASES CITED. PAGE Woodbouselee v. Dalrymple . 202 Woodin, In re 311 Woodman v. Woodman , . . 247 Woodruff V. Mai-sh ... 98, 177 Woods, In re 46 V. Ridley 65 Woodward v. James . . . 299, 300 Woolley V. I'axon 36-1 V. Woolley 58 Woolmer's Estate 3G0 Worthington v. Klemm ... 73 Wray v. Field 325 Wright V. Atkyns Hi V. Denn ." 313 V. Minshall 333 V. Rogers 57 V. Wilkin 94 Wurts V. Page ...... 250 Wurzell V. Beckman . . . 125, 135 PAGE Wj'che V. Clapp 113 Wynch, Ex parte 310 Wynu V. Bartlett 312 Y. Yarnall, In re 65, 66 Yates, In re 299 V. Thomson 305 Yeaton v. Roberts 284 Yeomans i". Stevens .... 208 Yost V. McKee 236 Young's Appeal .... 299, 300 Young, In re 255, 258 V. Harkleroad 304 V.Miller 78 V. Robinson 364 Youse v. Forman 126 Yundt's Appeal 370 PART I. INTRODUCTION. THE LAW OF WILLS. CHAPTER I. THEORY OP POST-MOKTEM DISPOSITION: THE STATE: RISE OF WILL-MAKING. As the first step to any stable theof y of the post-mortem disposition of property, whether by testacy or by intes- tacy, it must be observed that the idea of „. ,. . , '' Fiction of hav- absolute-property-forever in any particular ing property ,, » > J i forever. owner, as in the case of an estate to a man and his heirs forever, is a fiction, — a useful fiction prob- ably, but still a fiction. A grant to a man and his heirs forever is a grant to such grantee forever; the 'heirs ' ha,ve nothing in the estate granted. The grant, therefore, is to the grantee as if he might live forever, which in this world is impossible. There can be no such thing, then, as absolute property forever, in the true sense of the term. It is no answer to say that a man may be considered to live in his posterity, or even, to put the case still stronger, that a man holds his posterity in his loins; for either form of statement is as much a fiction as the one first mentioned. The childless man is conclusive of the point. Nor is it an answer to say that the owner of property may sell or exchange it for things consumable (if it be not consumable itself), and then consume tlie substitute; for in the case in hand the property, whether consumable or not, has not been consumed. Though it 4 THE LAW OF WILLS. or some substitute might have been used up, as a matter of fact it has been left, aud is now to be disposed of at death. The answer supposed confuses the notion of ' absolute ' property, or one's jjower over things, with the duration of such power. As a mere matter of power, a man may certainly own property ' absolutely.' Considered, however, as a theory, as it must be, how is the theory of ownership forever to be worked out? The fiction as With cases of testacy there would be no theory. difficulty; the testator is dealing with his own, and acting in person. In cases of intestacy the theory can be worked out only upon the idea of an im- plied agency in the State; the State acting for the owner in case of his failure to dispose of the property. But it is plain that such an agency must stand upon a foot- ing wholly unique aud unlike any other. In the first place, the supposed agency would be confined, as a matter of fact at least, to giving; it would not extend to selling or otherwise contracting. In the second place, the supposed agency would go into operation where recognized agency ends, with the death of the principal. And in the third place the agency would be irrevocable. Agency cannot be stretched to such a point. And the same will be found true of any other term that may be used to do duty for the idea of acting for one who is defunct. On what support, then, can a stable theory of post- mortem disposition be placed? Discordant answers have been sugo-ested. ^fc)0^ One answer is, that the title to property, subject to life ownership in a grantee, is in the State, and, but Theory of State foJ' the fact that the State has thought best ownership. ^q allow such grantee to designate the course of the property after his death, it would always POST-MORTEM DISPOSITION. 5 revert to the State upon the death of the grantee. This view of the case, it may be noticed, has nothing to do with original ownership in the State, except infereu- tially; it proceeds upon the notion that the State has some sort of reversionary right upon the death of its grantee-in-fee and of each of his successors in owner- ship, because in the nature of things no man can hold property forever. The theory of perpetual ownership collapses the moment it is put to the test, according to this view. I hold to myself and my heirs forever, the grant declares ; but after my death the property becomes the State's, though the State allows me, by some sort of agency, to dispose of it. That fact, however, has no bear- ing upon the soundness of the theory of State ownership. What, then, are the facts upon which this last-named theory rests or derives support? And how does the theory work out its result? These questions in order. Intestate laws strike one first. The State regulates the disposition of property at the death of the owner if the owner fails to dispose of it. And it . , , , ■ „ ., Intestate laws. may be noticed that the owner may so fail, not merely by making no attempt, but by making an attempt that does not conform to law. How, it might be urged, can the State interfere in such a way except upon the footing of ownership? The act of disposition is an act of dominion. If the State does not become owner at the time of the State's action, then the State cannot give the property, except by an exercise of arbitrary power, which means robbery. Again, if the State does not acquire ownership at the death of the grantee, who does? Not, ordinaril}^ the next of kin, in the case of person- alty ; ill most cases ^ the State hands the property over 1 Where, in the absence of debts ac'ainst tlie estate, the property is found, after the late owner's death, in the hands of one who would be 6 THE LAW OF WILLS. to the executor or administrator. Not the heir, it might be said, even iu the case of realty; the State hands the property over to him.^ The State so hands the property over, even against specific legatees or devisees, though there is no reason in the nature of things why the lega- tees or devisees might not take directly, subject to the claims of creditors. Another fact which may be deemed to support the idea of State ownership is connected with w^hat is called Title bvoccu- ^^^^^ ^J occupancy. The taking of really v^^cy. vacant property would seem to give to the taker ownership by natural right. But we are told that 'this right of occupancy, so far as it concerns real property . . . hath been confined by the laws of England within a very narrow compass. ' ^ It seems to have been allowed iu real property, even at the first, in but a single case, namely, in an estate for the life of another (' pur autre vie '), the tenant dying during the lifetime of that other person ('cestui que vie'). In such an event any one might enter upon the land and hold it during the unexpired period of the estate, that is, until the death of cestui que vie. But this right was reduced almost to nothing in the seventeenth century, by statute. That is, according to the view of State ownership, the State acted upon the principle or belief that the ownership had never entitled to it, one need not take out letters of administration in order to acquire title. That is probably tlie effect, directly or indi- rectly, of statutes. 1 The State, "However, hands the property over to the executor, administrator, or heir, as representing the deceased ; lience the State cannot be said to act as owner in the transaction, except in so far as in- terfering may be considered an act of dominion, and so of ownership ; with which point compare the law of trover. The suggestion as to the heir is pure assumption. 2 Blackstoue, ii. 257. POST-MORTEM DISPOSITION. 7 been vacant ; the entry of the new occupant was by mere permission, which the State now withdrew. A more particular case looking, it may be thought, towards State ownership may be brought forward. Stat- utes exist touching any right of adopted chil- ^^^p^^^ ^^-^^ dren to inherit property of their parents by dren's inheri- blood. Whether such children can so inherit is determined by statute; the State, it may accordingly be supposed, gives or withholds. To the suggestion that adopted children have no ' natural ' right to the property of a deceased parent-by -blood, the answer has been given from the bench that the suggestion is idle, ' for the reason that the statutory right is perfect and complete;' heir- ship being ' not a natural, but a statutory right. ' Hence the State may increase the number of a man's heirs, and cut down the shares of the others accordingly.^ These are a few out of many like instances that might be mentioned ; but all may be comprehended in the state- ment that both intestate and testate dispo- g^^^^j ^ ^^ sition of property is a matter of statute, in theoiy of state other words, of regulation by the State. ^ The State, it may therefore be thought, must be the 1 Wagner v. Wagner, 50 Iowa, 532 ; Abbott's Cases, p. 123. 2 Taxation of inheritances, whether through testacy or intestacy, far from pointing to State ownership, as some would have it, is a denial of State ownership. Taxation imports that the State does not own the thing taxed ; the State does not tax its own. If the State merely pro- fessed to relinquish to heirs all but a certain proportion of the estate, that would imply that the legislature considered that the State owned the property ; but that is not what the State does. Inheritance rates are based on the ground that as the heirs, legatees, or devisees come to the estate without cost or labor, and hence do nothing by way of earning it, it may properly be made a subject of special taxation. Whether that is sound theory or not, it has nothing to do with State 8 THE LAW OF WILLS. owner ; and besides, the State lives or may live forever, or, at any rate, it is expected to outlive the life of individuals, and therefore fulfils by possibility the requi- site duration. And the State's grantee and his suc- cessors have permission or appointment, so the argument would run, to act instead of or for the State in dispos- ing of property to pass at their death. We have, then, according to this theory, State ownership, with agency in the holder, as a supplementary theory by which dis- position post-mortem is worked out. Can this doctrine be put aside? The question may be answered indirectly in the course of propounding another, and what appears to be the true, theory of law; which may be put or j^* Intestacy: thus: In the case of intestacy, the State the State an q^q^q 3,8 an intermediary, in behalf of the intermediary. •' public welfare. If no provision for the dis- position of the property were made, the property at the death of the owner would become vacant, and a scramble would be invited, — the wrong-doer's opportunity. To prevent the property becoming vacant, the intestate, accepting a virtual offer by the State to act upon certain established terms, to wit, the intestacy statutes, — for in effect these are only an offer, — commits or leaves the property to the State, to distribute it upon those terms. ^ ownership of the property. The State might on the same ground tax gifts inter vivos, if it were practicable. Nor does it make any differ- ence how far the inheritance rates go, even if to the point of confisca- tion ; it is still taxation. 1 'Occupancy,' says Blackstone, ii. 257, ' is the taking possession of those things which before belonged to nobody. This ... is the true ground ... of all property. . . . But when once it was agreed that everything capable of ownership should have an owner, natural reason suggested that he who could first declare his intention of appropriating anything to his own use, and . . . actually took it into possesssion, should POST-MORTEM DISPOSITION. 9 In this view the intestate has a well-founded belief that the disposition which the State proposes is just and may save trouble, and possibly embarrassment and failure; and experience shows that in point of fact this is true in most cases, where attention has been called to the matter at all. In the case of testacy it would seem at first that a theory actually prevails that the testator, in disposing of property owned by him absolutely, is dis- Testacy : „ , . , 11- distinction be- posmg of his own, as much as when he gives ^^^gj^ owner- or sells to take effect in his lifetime.^ But ^^'P ""^^ title. looking below the surface, this may, after all, be con- thereby gain the absolute property of it; . . . quod nuUius est, id ratione naturali occupanti conceditur.' Speaking of estates pur autre vie, Fry, J., says that when such an estate ' is given to a man, or to him and his heirs, tlie most he can take is an estate for his own life, and any one who comes in after him takes, not through him, but as occupant of the estate. Originally any one who pleased was allowed to scramble for the occupancy after the death of the first taker, but this was found to be so inconvenient that he was allowed to appoint l)y will a special occupant. But still every one who came in after the first taker, came in as an occupant, and not as deriv- ing title through him.' In re Barber, 18 Ch. D. 624, 627. This fairly represents the state of things which the laws in general concerning post-mortem disposition of property are intended to prevent. 1 Where it only carries out, or professes to carry out, the intention of the testator, the State, needless to say, is not acting upon any theor}' of State ownership ; and that too, though it may be deemed necessary, upon one ground or another, to presume or to impute an intention in the testator. And yet some cases really of this kind may at first have the appearance of interference by the State on grounds of ownership. Thus, as will be seen in another chapter, where a testator makes a de- vise or legacy to his son John, and John dies before the death of his father, leaving issue who survive the testator, the issue (under statutes) take, if not excluded by the will, the gift intended for the father, though issue may not have been in the mind of the testator. But this, after all, is nothing more than an attempt to carry out in some sort the testa- tor's intention ; for the law proceeds upon the theory that, as tlie tes- 10 THE LAW OF WILLS. sidered as merely concealing a distinction between ownership and title. The idea of testate disposition, when closely examined, appears to be no more than this, that whatever may be true of ownership in the sense of holding and enjoying, a person's title may run on after the death of the person having it, wherever the grant or devise is to him and his heirs. Title accord- ingly means authority to dispose of; in that sense obvi- ously title may be severed from ownership, and indeed have no connection with it. It may be objected that this is using the word title in a sense out of the ordinary, and making it do duty for an idea foreign to it. But that is not true, as appears from the legal phrase ' right and title to convey; ' at any rate, the word is easily capable of the meaning given to it; and when understood accordingly it is consistent with the fact that ownership, in the sense of having and controlling in the name of ownership, comes to an end with the owner's death, even though he holds ' to himself and his heirs forever.' That fact should be emphasized; one's ownership or having necessarily comes to an end with death. What Vacancy: would then happen but for a power of dis- scrambimg. position resting somewhei'e, where it could and ordinarily would be exercised so as to preserve and help on the social instinct which seeks to draw men together in the State — that has already been suggested. The property would become vacant, and, according to its value, a thing to be scrambled for. Society, the very purpose and product of the social instinct, would tator f>;ave the particiilar interest to his son John, he did not intend that interest to go to his other legatees or devisees, and that he would probably have given it, in case of John's death, to John's issue rather than have it go elsewhere. POST-MORTEM DISPOSITION. 11 be pulled apart upou the death of the first mau having property worth a scramble. To prevent such a catas- trophe the absolute owner has ' title ' or authority to make a will, as the one most likely to act in accord with the social instinct; and in event of his failure to act, the State exercises the authority. Thus disposition by testacy and disposition by intes- tacy stand upon the same footing and are expressions of the same deep purpose, to wit, the prevention of a vacancy and the failure of what is the very foundation of society and order, the social instinct. They do not express any theory of State or individual ownership of property-forever. The individual in the case of testacy, the State in the case of intestacy, is an intermediary. If still the question is raised, from what source ema- nates the authority which confers ownership upon devisee, legatee, or distributee, the answer is, the Source of au- social instinct.! '^^^ po^e^. of disposition S^o^.e^^sW?" is conferred upon the owner or upon the after death. State; it does not emanate from either. Nor does it emanate from the social instiuct as fictitious owner of the property ; the power is the expression of the social instinct as a social and political necessity. Ownership is not a necessary condition to conferring ownership.^ To maintain the social order, power or authority, without being synonymous with robbery or injustice, may act and confer ownership. So it does act, it is conceived, in the matter of post-mortem disposal of property. 1 There lies the very source of law ; law is only the drawing and keeping men together in society, — the fulfilling of the social instinct. 2 That was a ' marvellous thing ' in the fifteenth century ; when it was first seen that a mere direction to an executor to sell lands, which belonged by descent to the heir, could when acted upon by sale confer ownership. It was drawing ' fire from a flint when there was no fire in the flint.' Year Book, 9 Hen. YI. 24 b. But it is no marvel now. 12 THE LAW OF WILLS. It does uot make against this theory that in early times, among our Germanic ancestors, property always „ , „ fell to heirs after the tenant's death: that Early Germanic _ ' distribution of is, that a property owner could not make a proper y. ^.^^ having any force or effect in regard to the descent of the property. For, to put the case in the usual way, the property belonged to the family, as a sort of corporation; while the family continued, the com- munity had nothing in the property. It is a different way of putting it, but it is probably true, also, to say, that the property fell from father to child rather than, through a vacancy, to the man who could first lay his hands upon it. It was better that the late tenant's kin should have it; and the only interest the community had in the matter was to see that the kin did have it. That interest on the part of the community was, however, the interest of self-preservation; not to regard it would be to invite anarchy to tear society to pieces. It is obvious that the same was true in feudal England, when the right to make wills, admitted and practised of Disposition in gooc^s and chattels, was cut off in respect cf feudal England, land.^ Except as original source of right, with right of escheat on failure of heirs, the State was Dot deemed owner, resuming its own upon the death of the tenant and then making a gift of the property to the next taker. It acted then as before, and as at the present time, as an intermediary, to see that the social fabric should not perish. The transfer made was a ^ Wills of land were in use in England before the Norman con- quest (a.d. 1066). How general the u.se is not known, especially among the smaller free tenants. It is very doubtful whether there was freedom in will-making among such persons, however it may have been with great people. See Pollock & Maitland's Hist. Eng. Law, ii. 318. POST-MORTEM DISPOSITION. 13 transfer by rightful authority or power, not the gift of an owner. ^ Such appears to be the actual theory of the law. Still it is probably true, as has already been observed, that in the earlier period of the races which later became English, wills were not in use. The manic codelT appearance of wills in the Germanic codes 1'°''^ ^'^'^ '■ ^ began. (the Leges Barbarorum) of a later time, was due to contact with Roman jurisprudence, and was bor- rowed from that source of civilization.''^ In the earlier period A's cattle, upon A's death, regularly passed to A's heirs, if he had any; A could not prevent it.^ This fact directly raises another sort of question which the theory above presented naturally suggests, namely; intes- tate disposition being the rule, how did disposition by will come about? Whence it came has already been noticed; it was the gift of Rome's expiring civilization 1 The State is of course the ultimate heir, but only upon failure of all the natural heirs. That very remote claim alone remains in the State after its grant to the grantee ami his heirs forever. The State has by such a conveyance parted with its title completely, so that there is nothing for it upon the mere death of its grantee. It does not fol- low that, because the grantee cannot, as a matter of fact, have the property forever, the State comes in at his death, tlieu giving as it will. The case in very substance is tliis, to put it once more : The grantee takes for himself, till death, with power of distriljutiou at will of the post-mortem interest ; if lie fails to exercise the power, the State exercises it, i. e., the power, under fixed limitations, subject to its right of taxation upon inlieritauces. 2 See Maine, Ancient Law, p. 189. But see additional note at end of this chapter. ^ ' When the phenomena of primitive societies emerge into light, it seems impossible to dispute a proposition wliicii the jurists of the seven- teenth century considered doubtful, that intestate inheritance is a more ancient institution than testamentary succession.' Maine, Ancient Law, c. 6, p. 189; Abbott, p. 19. 14 THE LAW OF WILLS. to Rome's rude eouquerors, awakened, at last, by cjoser contact with that civilization, to a better life.i But hoiv did the making of wills come to be allowed? Equality, at least among male children, and indeed among daugh- ters in the absence of sons, was the inveterate principle of the Germans in their original abodes north and east of the then conquering eagles of Rome.^ Wills neces- sarily implied inequality. The process by which wills, such as they were, came to be recognized appears to have been as follows : ^ The earliest lawful wills of our Germanic ancestors were based, it seems, (1) upon failure of kindred near enough, that is, within the family, to take by the regular method, intestacy; or they were (2) gifts of property to which such kindred had no direct claim. To find the evidence for the first of these cases would take us too far afield into early Germanic usage ; for evidence of the second it is not necessary to go back to the earlier home of the English people. It is still true many centuries after the migration, in Norman England. Lands acquired by inheritance as family domain were considered more or less like entailed property, that is, property in which the ' heir ' had a legal interest in the lifetime of the tenant, 1 As to the ' wills ' in the Germanic codes, ' they are almost certainly Roman. The most penetrating German criticism has recently been directed to these leges barbarorum, the great object of investigation being to detach those portions of each system which formed the cus- toms of the tribe in its original home from the adventitious ingredients which were borrowed from the laws of the Romans. In the course of this process one result has invariably disclosed itself, that the ancient nucleus of the code contains no trace of a will. Whatever testamentary law exists has been taken from Roman jurisprudence.* Maine, ut supra. 2 Preserved in Kent in gavellcind, well called the common law of Kent. ^ See Sir H. S. Maine, in the 6th chapter of his Ancient Law ; also Abbott's Cases, pp. 19 et seq., where Maine is quoted at length. POST-MORTEM DISPOSITION. 15 SO that the heir's consent was necessary to any transfer even inter vivos. ^ The words of inheritance in our modern deeds, ' to A and his heirs,' ^ were, in their Latin form ' et suis hffiredibus, ' first brought into use in Eng- Words of land in the twelfth or late in the eleventh iniieritance. century, following upon the establishment, effected towards the close of the eleventh century, of the (Eng- lish) feudal tenures, in the case of feoffments or gifts of fiefs or feuds by lord to tenant. At the same time, it may be noticed, in immediate connection with these words of inheritance, reciprocal words declaring that the fief or feud was to be held of the feoffor, ' and his heirs ' were introduced into the (oral or written) con- veyance. The feoffment contemplated a relation forever between the donor and descendants and the donee and descendants. In the times referred to, the 'heir,' as we have said, deemed himself in some sort included in the oriainal sift of the lord, either as quasi tenant in tail (to use a term of later times), or as having some other interest of which he ought not to be deprived without his consent.^ In other words, the heir considered that he took, in modern phrase, by purchase. But the case was different in re- gard to lands which the ancestor had himself added to his estates by acquisition of his own.^ "With property * It is possible, though but barely possible, that there still survived a notion of the family as a corporation. 2 The author is now using a note of his own to the 5th Am. ed. by him of Jarman on Wills, ii. 332. ^ Compare additional note at end of this chapter, as to Greek wills. * In the Custumal known as the Laws of Henry the First, a book of the first half of the twelfth century, it is said that one who has book- land (laud of inheritance conveyed by writing) from bis ' parentes ' should uot convey it away from his family. Henry I., c. "0, § 21 ; 16 THE LAW OF WILLS. SO acquired the right of will-making, in some sort, in regard to land, practically begins. Testamentary disposition of personalty was every- where much earlier ; though in western Europe not with- Wiils of per- ^ut important limitations. In the latter sonalty. p^pt of the thirteenth century Glanvill tells us that a man's goods were to be divided into three equal parts : one for his heir, another for his widow, the Placita Anglo-Norm annica, Introd. 44, 45, note. In the reign of the same king (1100-1135) a son confirms, or rather makes anew, a gift of laud made by his father to the church, which had been adjudged good against the son. Placita Anglo-Norm. 128, 129. See also Hist. Mon. Abingdon, ii., 136, anno 1104. About the year 1160 the Abbot of Abiugdon sues a tenant named Pain ' cum filio quem hajredem habuit ' to recover fiefs forfeited, as alleged, by the father. Pain ' et filius suus ' entered into a concord with the abbot and so terminated the suit. These were cases of gifts to the donee and his heirs. Writing some twenty-five years later, Glauvill says that a man may make a ' will ' in his last sickness, ' with the consent of his heir ; ' that he cannot ' without his heir's consent ' give any part of his inheritance to a younger son ; and that he cannot disinherit ' his son and heir,' even as to land which he (the father) has bought, though if he have no heir of his body, he may do as he will with such laud. But he may convey a reasonable part of purchased property without consent of his bodily heir. Lib. 7, c. 1. As to this early ' will,' see Pollock and Maitland's Hist, of the English Law, ii. 321-326. This special relation of the heir to his father's fief did not long survive the twelfth century, though traces of it appear in Bracton, who wrote iu tlie reign of Henry the Third. See lib. 2, c. 6, fol. 17 b. The word ' assigns,' — to the feoffee, ' his heirs and assigus,' — which greatly helped alienation, was introduced into the feudal gift early in the thirteeuth or late in the twelfth century. For a short time in the middle of the tliirteenth century the word 'legatees' was added, the gift being to the feoffee, his heirs, assigns, and legatees. Pollock and Maitlaud, ii. 26, referring to various cartularies, and to one instance in the time of King John, Rotuli Cart. 160. But the word disappeared in the reign of Edward tlie First, and so the attempt to create a testa- mentary power failed. P. & M. ii. 27. POST-MORTEM DISPOSITION. 17 third to be at his own disposal.^ If he died without a wife, he might dispose of oue-half, the other half going to his children if any; if he had no children, his wife, if he had a wife, was to have half; and if he died without wife or children, he might dispose of the whole.^ Sub- ject to differences of local custom, this continued to be true until the time of Charles the Second.^ By this time personalty might be disposed of by will freely in the greater part of England,* the claims of the widow hav- 1 Glanvill, lib. 7, c. 5. See also, some fifteen years earlier, the Constitutions of Cashel, c. 6, a. d. 1272, liy which English law was to be introduced into Ireland. ' That every good Christian, being sick and weak, shall solemnly make his last will and testament in the presence of his confessor and friends, and that, if he have any wife and children, all his movable goods (his debts and servants' wages being first paid) shall be divided into three parts, one of which he shall be- queath to his children, another to his lawful wife, and the third to such uses as he shall declare. And if it shall happen that there be no lawful child or children, then his goods shall be equally divided between his wife and legatees. And if his wife die before him, then his goods shall be divided into two parts, of which the cliildren shall take one and his legatees the other.' Giraldus Cambrensis, Conquest of Ire- land, lib. 1, c. xxxiv. It will be noticed that we have the word ' children ' here (as entitled to one part of the goods), where GlanviUe says ' heir,' by which was meant eldest sou. With the Constitutions of Cashel agree Magna Chartaof John(A. D. 1216), c. 26, of Henry III., 1216, c. 21, 1217, c. 22, 1224, c. 18 ; Bracton, 60 b. (temp. Henry III.) ; Fleta, lib. 2, c. .57, § 10 (temp. Edward I.) ; and Regiam Majestatem, lib. 2, c. 37 (the Scotch Glanvill). Compare also Assize of Northampton, c. 14 (1176), as to free-tenent socmen. And earlier see Charter of Henry I. c. 7 (1101). This casts a doubt upon the text of Glanvill. Is it likely that primo- geniture made such a great advance as that indicated by Glanvill, within a few years, and then, within another short time, fell back to its old position ? The eldest son's heirship itself (that is, in descent of lands) had not become complete when Glanvill wrote (1187). Lib. 7, c. 3. Nor in the middle of the next century. Bracton, 76. 2 See Constitutions of Cashel, supra; Blackstoue, ii. 491. 8 Blackstoue, ii. 491, 492. * The older usage of the common law, in favor of the widow and 2 18 THE LAW OF WILLS. ing continued, however, after those of the children had disappeared.^ The rise of primogeniture under feudalism in the middle ages appears to have created the occasion and demand for testamentary disposition. Orig- Primogeniture. .,, , .,<. , o ^^ ^ i -w-^ inally, that is, before the fall of the Rom an empire, children among the German races, as we have seen, took equally; primogeniture, which of course destroyed all equality, was a thing of slow and gradual growth, beginning here and there with the feudal tie among the conquerors of Rome, and finally spreading over Europe; though not without admitting in various places some different custom, such as junior right, the converse of primogeniture, equally fatal to the idea of equality among the children.- And now ' as the feudal law of land practically disinherited all the children in favor of one, the equal distribution even of those sorts of property which [still] might have been equally divided ceased to be viewed as a duty.' ^ And the way to carry out the owner's wishes, as a practical matter of method, was pointed out by Roman jurisprudence and usage. The clergy produced the Roman will, and used it as a model for the purpose in hand. The will has accordingly been called ' an accidental fruit of feudalism.' * children, prevailed longer in Wales, in the Province of York, and in London. Id. 1 Maine, Ancient Law, c. 7, p. 217 ; Abbott, p. 26. 2 As ' borough English,' junior right — the inheritance of the youngest son to the exclusion of his elder brothers — was common local custom in England. On the name ' borough English ' see Pollock and Maitland's Hist, of English Law, ii. 277. 3 Maine, c. 7, p. 217. * Id. For the history of the stages through which the English will passed, see Pollock and Maitland's Hist, of the English Law, ii. 312- 353. Here we are only speaking of what led to will-making. POST-MORTEM DISPOSITION. 19 It should be added that primogeniture did not come into operation in England until after the Norman conquest/ On the continent, however, it had taken root much earlier; hence it is necessary to turn to the continent, as we have done, to find the evidence for the statement that testa- mentary disposition was due to primogeniture.^ Having now pointed out the origin of wills, a distinc- tion should be noticed in the theory, or more properly in the very doctrine, of wills, between tes- . - . . . Disposition of tamentary or intestate disposition of per- personalty dis- sonalty and testamentary disposition of dtfoSoi of "^ realty. The distinction is between taking i-eaiiy: convey- under representation and taking under con- veyance. An executor represents the testator; a legal or fictitious as distinguished from natural or true per- sonality being assumed to exist in the executor and to continue until the duties committed to him have been performed. The legatee takes accordingly from a repre- sentative, or by ' succession,' to use a term of the Roman law. And the same is true of distributees in intestacy ; they take from the administrator as representative. In the case of realty, however, the devisee takes, by common-law doctrine, as by a conveyance from the tes- tator, though the ' conveyance ' takes effect, of course, 1 And not at once then. See supra, note ; Charter of Henry I. c. 7 (1101); Assize of Northampton, c. 4 (1176); Glanvill, lib. 7, c. 3 (1187); Bracton, 76 (temp. Henry III.). 2 Wills still appear to have a close connection in England with the position of the eldest son. It is stated that wills are frequently used there to aid or imitate that preference for the eldest son and his line which is a general feature in marriage settlements of land. Maine, ut supra. For the process and stages by which primogeniture came about, the reader is referred to the passages in the chapter in Maine's Ancient Law above cited, and to the extracts from the same in Abbott's Cases, pp. 26-28. 20 THE LAW OF WILLS. only from the death of the testator, on the probate of the ■will. This operation of wills of realty will come out more clearly in the next chapter, where the testator will be seen in early times conveying his lands to another to uses such as he (the testator) may then or afterwards designate by will. But the full significance of this distinction will only appear in a later chapter; for the present it is enough to say that, at common law, devises are in certain respects governed by rules akin to those relating to conveyances inter vivos. ^ 1 All this is consistent with the theory of wills above presented as the ' true ' one ; for, breaking through mere form and looking at the substance of things, as one may here do, it is still true that in the case of testacy the testator, in the case of intestacy the State, is but an in- termediary, acting for the common weal. The text at this point only shows how the mediation operates. There is nothing in the way the mediation works, to affect the theorj'. The Roman will has been referred to in the text as affording a pre- cedent of the will of our early ancestors. It must not be inferred that the Roman will was the only true will, in the sense of will-making without consent of the heir. Even the fact that the ordinary Athenian will was imperfect in the same sense (that consent of heirs was neces- sary where they were affected) would not justify the inference that the Roman will alone was perfect. Sir Henry Maine appears to have been misled by the tempting inference. Ancient Law, pp. 194-196. Some very interesting discoveries in a region of the Nile called the Fayyum, above Cairo, to the west of the river, show Greek merceuar ries making their wills (if the instruments are what they strongly ap- pear to be) with perfect freedom. A number of testamentary papvri, more or less complete, were recently found in the district named, in none of which is there any suggestion of restraint upon the testator. And these instruments are drawn up in one and the same form, indicating that they were in the legal style. Professor Mahaffy, writ- ing upon them, December 8, 1890, speaks of them as the 'sheets of a Probate Court at Arsinoe . . . drawn up in parallel columns.' Whether the sheets are official copies of public records, as Professor Mahaffy thinks, or are only the rough originals, — for they contain many cor- rections and interlineations, — is not clear ; but they were public docu- POST-MORTEM DISPOSITION. 21 ments in either case. The king and queen are in many cases appointed executors; which Professor Mahaffy thinks would make it necessary to have an official copy in the public records. It will be of interest to notice the common formulae of these instru- ments. They begin with — The date, which in these instances runs from the 10th to the 22d year of the third Ptolemy, i.e., from 237 to 225 b. c. Next, — The preamble with description of the testator, which runs thus : •Being of sound mind and good understanding. A, son of B, made the following bequest,' then adding his age, country, stature, and other things relating to his physical person (such as his moles and scars), and his regiment. The words ' being of sound mind and good under- standing ' will be noted as the words of our own wills. Next, — The opening language of gift, much the same in each case, but with some variation. Next, — The details of the gift, embracing the legatees or devisees. Next, — The appointment of the king and queen and their descendants as executors, which suggests State administration, but nothing more. Next and last, — The naming and description of the witnesses, generally as many as six, but usually as many as possible, says the orator Isaeus, as quoted by Mahaffy. Such is the form of the will of the Greek troops of the Fajyum, Egypt ; and as the soldiers, says Professor Mahaffy, came from all parts of the Greek world, 'we may fairly suppose that it represents what was in use elsewhere at an earlier period.' Mahaffy, On the Flinders Petrie Papyri, Autotypes i.-xxx., Dublin, Academy House, 1891. See also, for further facts, Hermann's Alterthiimer, and Smith's Antiquities. Isaeus says that the Greek wills, of citizens at home presumably, close with solemn imprecations against those who would oppose them. The same thing is common in the Anglo-Saxon and earlier Anglo-Norman wills, — a fact worthy of notice; but there is no such thing in the Fayyum wills. On the subject of these wills see an interesting article in the Law Quarterly Eev. for January, 1892, by E. P. Fry, ' Conveyancing under the Ptolemies.' If the learned reader will look into the works of Diogenes Laertius he will find the wills in full of Aristotle and Epicurus. The will of Epicurus, it may be noticed by the way, is particularly interesting as creating a perpetuity in his garden in the interest of his school of philosophy. For the reference to these wills the author is indebted to Lord Justice Fry. See Diog. Laert. lib. v. §§ 12 et seq., ed. Meibomii, pp. 274 et seq. for will of Aristotle ; id. lib. x., §§ 16 et seq., ed. Meib., 22 THE LAW OF WILLS. pp. 611 et seq., for will of Epicurus. In Hermauu's collection, above cited, will also be found the will of Epicurus. For purpose of com- parison Professor Mahaffy, ut supra, gives the Greek will of Epicteta of Thera, in the 3d century b. c. The bequests there made are ' with consent of my natural heirs,' as in Anglo-Saxon and Normau wills. See ante, pp. 14, 15. Further light may be looked for from discoveries made about a year ago at Oxyrhynchus, in the Libyan desert of Egypt, one hundred and twenty miles south of Cairo. Here have been found more than four hundred fragments of papyri, containing (besides the Logia of Jesus) various documents, including, it is said, wills. A third of these are retained by the Egyptian government ; the rest have gone to the British Museum. For the early history of the English will, the pages of Pollock and Maitland's History of the English Law, it need scarcely be repeated, must be examined. WILLS SINCE NORMAN CONQUEST. 23 CHAPTER II. WILLS SINCE THE NORMAN CONQUEST. Before the Norman Conquest the right to dispose of property, whether personal or real, by will or act more or less testamentary in the modern sense, ^ Before the Con- was, as we have seen, in use to some extent, quest: estab- lishment of Upon the establishment of the form of feu- English feudal- dalism which was developed in England ^^'"' soon after the Conquest, the making of wills of land gradually, and by the reign of Edward the First fin- ally,^ came to an end, though wills of personalty con- tinued in use. Feudal tenure and the requirement of livery of seisin ultimately made wills of land impossible, according to the common law of England, except in the case of royalty,^ and of deep-seated custom in certain 1 On the pre-Norman and early Norman 'wills,' see Pollock and Maitland's Hist, of English Law, ii. 312-353. 2 After the Statute de Donis, 13 Edw. L c. 1 (a. d. 1285), wills as well as conveyances of lands held by a man to himself and the heirs of his body became unlawful ; but wills of all freehold lands were by this time already a thing of the past, except by local custom. See PoUock and Maitland, ii. 27, 327 ; ante, p. 12, note. 3 See some of the wills of the Norman kings, in Nicholas, Eoyal Wills. The substance of one of them, by William the Conqueror, is put into English verse by Robert of Gloucester, lines 7826-7831 (Wright's ed. of the longer Chronitle bearing Robert of Gloucester's name, which Wright dates about the year 1300 ; the original being probably of the time of Henry the First, 1100-1135). In point of dis- position, this is a case of real will-making, for the king sets aside his eldest son Robert, and to his second son ' Willam the rede al engelond ' 24 THE LAW OF WILLS. parts of England (as in Loudon) where feudal tenure obtained only in modified form. Freehold estates could not be conveyed, according to the feudal common law except by livery of seisin, that is, by actual, open, notorious delivery of the land, as it were, out of hand.^ No publicity of making a ' will,' in itself, satisfied the law.^ But the rise and establishment of the Court of Chan- eery as a court of equity jurisdiction had by the fifteenth jj.g ^ , century quite undermined the feudal inhibi- Chancery tion of wills of realty, and wills of lands Court: uses. -n « were now as common as wills of personalty. This result had been brought about in this way: The freehold owner enfeoffed another, that is, conveyed to him by livery of seisin, to hold the land to the use of the feoffor ^ and to such special uses as the feoffor might then or afterwards designate, as, for instance, by will; then by will, sooner or later, the feoffor would designate he ' bequeathed ; ' while ' Normandie is eritage he zef is eldoste sone Roberd the courtehese.' To Henry, the youngest, afterwards Henry the First, he ' biqueth is tresour ; ' and ' he nadde sones nammo ' — he had no more sons. The tale is authentic. 1 ' By the common law of this realm, lands, tenements, and here- ditaments be not devisable by testament, nor ought to be transferred from one to another, but by solemn livery and seisin,' etc. Statute of Uses (a. d. 1535), infra. 2 Livery of seisin sometimes took place or had taken place already. The ' will ' in such a case could hardly have been anything more than a sort of confirmation of the livery, or vice versa. See Pollock and Maitland's Hist. ii. 327. Such, or such-like, were indeed most of the ordinary so-called ' wills ' of land of Norman England. Livery of seisin was not yet to be superseded. 3 The conveyance being without consideration, the use would result to the feoffor without any declaration to that effect, unless a different intent were shown. WILLS SINCE NORJIAN CONQUEST. 25 the uses. The feoflfee would now hold the legal estate, for the estate had been made to him conformably to the feudal common law; but the chancellor, acting in equity, considered that the declaration to uses, subject to which the feoffee had taken, was binding, and accordingly the feoffee must carry out any special designation of uses thereafter to be made, which of course would include the declaration of his last will. The feoffee to uses would thus be bound to allow the devisee under the feoffor's will to have the benefits conferred by the devise. One or two illustrations of the time will serve to make a clear picture of the transaction. In the year 1417-18, Thomas, Duke of Clarence, second son of illustrations of Henry the Fourth, made his will. Towards ^""^ to uses. the end of it he declares (in Anglo-French) : ' We wish and ordain . . . that cur feoffees of our castles, manors, services, lands, and tenements aforesaid make an estate to Margaret, our very dear wife, in the said castles, manors, services, lands, and tenements, and their appurtenances for the term of her life; the remainder ... to Henry, our son, Earl of Somerset, and his heirs male of his body begotten.' ^ In the same year King Henry the Fifth, in making his will, declared: ' For as much as before this time I have enfeffed symplich [simply] and without condicion Henry erchibishop of Canterbury [and others named] in the castil and lordship of Hegham Ferrers, and in other lord- ships, mauoirs, lands, tenementz, and othir possessions; . . . that of all the said castils, lordships, mouoirs, lands, tenementz, rents, services, and othir possessions, they will do fulfille my will and entent aftir writen; but if it so befalle that or [before] I passe out of this world I change this will ... I wol and pray the foresaid feffez 1 Royal Wills, Nicholas, 234. 26 THE LAW OF WILLS. that thai do fulfille my latter will, the which thai may be certifiet of be my lettre subscribed with myu owen hand, and enseelet with my seel. ' ^ Then follow the directions to the feoffees. The most picturesque example of the kind is found in a case of the time of Henry the Sixth, anno 1437. The record of this case tells us that certain feoffees to uses appeared before the chancellor, and on examination declared that their feoffor, ' leyng in an house of his awen ... so sore seke in his bede that ... he myght noght be remeved, in to so moche that in the same nyght foUowyng he died, callede to hym the foresaide John and Thomas [feoffees], sayng to thaym in this maner: "Sirs ye be the men in whome I have grete trust afore moche other persones, and in especial that suche will als [as] I shall declare you atte this tyme, for my full and last will, shall throgh your gude help by oure Lordes mercy be perfourmed; Wherefore I late you have full knowlich, that this house which I ly in, and all myn other londes and tenements in this toune, I yeve and graunte to you, to holde to you your heires and your assignes, to this entent, that after mjm deces, ze shall make estate of the same house, londes and tenements to Alice my wyfe terme of hir lyve, so that after hir deth thay remayne to Margarete my doghter, and to the heires of hir body loufully becomyng, and if sche die withoute heir of hir body comyng, that then thay remayne to my right heires for evermore. And to thentent that this my last will mowe be performed by you, als my trust is that it shall be, her [here] atte this tyme I delyver you posession of this house in the name of all my londes and tenements afore especified,*^ als holy and entierly als they 1 Royal Wills, 236. 2 A typical example of livery of seisin, all parties being present on the land. WILLS SINCE NORMAN C0NQLT:ST. 27 wer ever myn atte any tyme." By force wherof the forseide John and Thomas wer possesseyd of the house, londes and tenements aforeseide, in thaire demesne als of fee, and of the same house, londes and tenements made estate to the saide Alice, after the deth of hir saide husbond, accordyng to the entent and will afore declared. ' ^ The common-law judges, while not recognizing the position of the devisee, and still holding that wills of realty were contrary to English law, could „, '' J => ' jfjg common- do nothing, or at any rate did nothing, law courts against cestui que use, as the devisee was called, to prevent him from enjoying the benefits of the will. There was nothing for the common-law judges to lay hold of; the conveyance had been made in accord- ance with the common-law requirement of livery of seisin, and the title so made continued, throughout the operation of the will, where it had been put. On the other hand, the common-law judges would do nothing for cestui que use ; they would not in any way, by direct mandate or through damages for breach of trust, compel the feoffee to carry out the terms of the devise. His direction and his undertaking to do so were, in the eye of the common law, secret; that is, they were expressed only by word of mouth or by writing, not by open livery of seisin or acknowledgment in court," which alone the common law took notice of. 1 Dighy, Hist. Eeal Prop. 261 ; Calendars in Chancery, ii. p. xliii. The earliest case known appears to be of the sixth year of Richard the Second (1382-3). Rothanhale v. "Wychingham, Digby, 249 ; Calendars, ii. p. iii. This was a petition to compel feoffees to carry ont the dis- positions of the feoffor's settlement (declared by separate deed) and his son's will. - By fine or common recovery, the judicial equivalent of livery of seisin. 28 THE LxVW OF WILLS. This is clearly brought out in a case of the time of Edward the Fourth.^ The plaintiff had brought trespass quare clausum f regit; the plea to which was, that the defendant had entered under a feoffment made by him to the plaintiff, ' to the use of the defendant and upon confidence, and then the defendant, by sufferance of the plaintiff,' entered the laud. The plea was held bad. It would be a defence in chancery, said the court, for there a man should have remedy according to conscience, upon the intent of such a feoffment; ' but here by the course of the common law ... it is otherwise • . . ; and the feoffor shall not justify contrary to his own feoffment, that the said feoffment was made in confidence.' And this would of course apply to cestui que use as well. The intent, the trust and confidence, were not things open and notorious, known to the neighborhood, so as to enable a jury to pass upon the question.^ But the chancellor, able to look beyond the forms of the common law, took notice of the ' secret ' intent (which _,, , „ as a matter of fact was not secret), and, as The chancellor ' ' ' enforces the we have scen, enforced the trust, or use, as it was then called. Thus, with other like influences at work, feudalism was far gone in the fifteenth century. Feoffment to uses had cut the nerve of tenure ; the feudal lord had lost his revenues ; he could not en- force his right to forfeitures, escheats, wardships, mar- riages, and the like, — not against the feoffor because he had parted with the title to the lands in question; not against the feoffee to uses, for he virtually had nothing 1 Year Book, 4 Edw. IV. 8, 9 ; Digby, Hist. Real Prop. 262 (1464). 2 Jenney for the plaintiff put the point plainly. 'A man,' said he, 'should plead such matter as is or may be known to the jury, if the issue should be taken thereon. And tliis cannot be upon the alleged sufferance.' He added that the defendant ought to have pleaded a lease. WILLS SINCE NORMAN CONQUEST. 29 in the lands ; not against cestui que use, for no feudal tie bound him to the injured lord. Finally Parliament made a vigorous effort to save what was left of feudalism, and in the year 1535 passed the Statute of Uses.^ This statute began by . Statue of Uses. reciting that whereas lands were not devis- able or transferrible except by livery of seisin, ' yet . . . subtle inventions and practices have been used whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments, fines, recover- ies, and other assurances, craftily made to secret ^ uses, intents, and trusts, and also by wills and testaments sometime made by nude parolz and words, sometime by signs and tokens, and sometime by writing, and for the most part made by such persons as be visited with sick- ness, in their extreme agonies and pains, or at such time as they have scantly had any good memory or remem-- brauce ; at which times they, being provoked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly aud unadvisedly their lands and inheritances ; ^ by reason whereof ' heirs have been unjustly disinherited, lords have lost their wardships, marriages, reliefs, heriots, escheats, and aids for mak- ing their sons knights and for marrying their daughters, and (among other enumerated evils) purchasers of lands could hardly be assured of their rights. For remedy whereof it was enacted in effect, so far as need be stated here, that from the first day of May, 1536, conveyances by seisin to uses should be treated as conveyances to the person who was to be entitled to the use of the estate. 1 27 Hen. VIII. c. 10. 2 The will, not being a matter of record, was considered a secret instrument; so, for the same reason, was the deed of bargain aud sale, the grant, and other assurances without livery. 8 By declaring now the uses to which their feoffees are to hold. 30 THE LAW OF WILLS. The feoffee to uses aceordiugly took no estate what- ever, the seisin which he received reverting by law to the feoffor, because of the use reserved to him. No such feoffment, nor any other kind of conveyance to the use of him who made it, could come to anything ; the whole thing, with the trusts imposed, will and all, would be as if nothing had been done. Thus the only way which had been discovered for disposing of land by will was closed up. So matters stood for five years, by which time Parlia- ment found it impossible to put a stop to the practice of disposing of lands by will, or at least Statute of Wills. \ ° • / i i i • u found it useless to resist a demand which went up from all sides of the kingdom for allowing wills of the kind. In the year 1540 the Statute of Wills was passed,^ in which, recognizing that his Majesty's ' obedi- ent and loving subjects cannot use or exercise themselves according to their estates, degrees, faculties, and quali- ties,' it was enacted: 'That all and every person and persons having or which hereafter shall have any manors, lands, tenements, or hereditaments, holden in socage,^ or of the nature of socage tenure, and not having any manors, lands, tenements, or hereditaments holden of 1 32 Hen. VIII. c. 1. 2 ' Free tenure is where the tenant holdeth of his lord the tenancy by certain service for all manner of services, so that the service be not knight's service. As where a man holdeth his land of his lord by fealty and certain rent for all manner of services ; or else where a man holdeth his land by homage, fealty, and certain rent for all manner of services ; or where a man holdeth his land by homage and fealty for all manner of services ; for homage by itself maketh not knight's ser- vice.' Littleton's Tenures, § 117, Coke. After the abolition of (what was left of) the feudal tenures, in the time of Charles the Second socage tenure became simply tenure by payment of certain rent. As such it came to this country. WILLS SINCE NORMAN CONQUEST. 31 the kiug ... by knight's service, by socage tenure in chief or of the nature of socage tenure in chief, nor of any other person or persons by knight's service, from the twentieth day of July, in the year of our Lord 1540, shall have full and free liberty, power, and authority to give, dispose, will and devise, as well by his last will aud testament in writing, or otherwise b}^ any act or acts lawfully executed in his life, all his said manors, lands, tenements, and hereditaments, or any of them at his free will and pleasure.' Other sections follow, extending the power, with cer- tain reservations of the ancient incidents of tenure, such as primer seisins, fines on alienation, and wardships; the net effect being that socage tenants in fee-simple ^ could dispose of their socage lands freely and two-tliirds of their lands held by knight service. In the next cen- tury Parliament abolished the military tenures, turning knight service into socage tenure, and thus extended one's power of disposition over all one's fee-simple lands. ^ The Statute of Frauds followed, requiring for the first time that all wills of land not nuncupative should be in writing, signed by the testator or by some one in his presence by his direction, and witnessed by three or four credible witnesses.^ And thus the law was brought over to this country by our ancestors. 1 This by the interpreting statute of 34 and 35 Hen. VIII. c. 5, § 3 (a.d. 1542-3). 2 12 Charles IL c. 24 (a. d. 1660). 8 The present law of wills in England is founded upon the Wills Act, 7 Wm. IV. and 1 Vict. c. 26. See Digby, Hi.st. Real Prop. 300. PART II. THE NATURE OF A WILL. CHAPTER III. ELEMENTS OF A WILL. A WILL, otherwise called a testament,^ is (1) a writteu instrumeut (2) duly executed and attested, or (3) a nuu- cupatiou, by which (4) a competent person rj /= •.• makes (5) a voluntary disposition (6) of division of sub- IGCt. property (7) in favor of another compe- tent person, (8) to take effect after the maker's death, (9) meantime being revocable. Or it is (10) a writteu instrument duly executed and attested, nominating an executor,^ or a post-mortem guardian of minor children of the maker. The divisions marked by numerals point out the Ele- ments of a Will, and accordingly may, the last one excepted, be taken as the subjects of so many divisions for first consideration. These divisions indicate what a will must contain at the very least; a will may and often does contain much more. As for the sort of will by which one nominates an executor, or a post-mortem 1 This word in early times was used of any iostrnment creating rights. See Pollock and Maitland's Hist, of English Law, ii. 315. It was often used thus : ' I mak my testament concernyng my last wyll in this wyse.' Furnivall's Fifty English Wills, 92 (a. d. 1432-3); 'my present testament of my last wyll.' Id. 94 (a. d. 1433); ' my testament con- teynyng my laste wyll.' Id. 99 (a.d. 1434). It was applied particularly to wills of personalty until recent times ; but now there is no distinc- tion between ' testament ' and 'will.' It is common to speak of one's ' last will and testament,' but the expression is a pleonasm ; it is enough to say ' last will.' 2 In re Hickman, 101 Cal. 609. 36 THE LAW OF WILLS. guardian of one's minor children, that subject may be dismissed as not calling for special examination.^ The written revocation of a will, for another thing, is a sort of testamentary act, but it is not, properly speaking, a will, and hence does not fall within the foregoing definition.^ We are now to analyze the definition in a series of chapters. 1 Prater v. Whittle, 16 S. Car. 40 (executor) ; In re Hickman, 101 Cal. 609 (executor) ; Jarman, Wills, 34, 35 (guardian of minors). 2 See Bailey v. Bailey, 5 Cush. 245. In this case Shaw, C. J., speak- ing of a writing in two lines which read, ' It is my wish that the will that I made be destroyed, and my estate settled according to law,' said : ' Strictly speaking it was not a last will and testament, because it did not devise or bequeath property, or republish a former will, or nominate an executor.' It may be added, that a revocation, in its very nature, takes effect at once. CHAPTEK IV. ' WRITTEN INSTRUMENT.' The English Statute of Frauds first made writing necessary; this and similar legislation in this country require all wills of realty, except wills by English statute nuncupation, to be written. And at the of Frauds, present day the requirement is generally extended by statute to wills of personalty; all wills not nuncupative must be in writing. The English statute, which was passed in the twenty-ninth year of the reign of Charles the Second, provided that all devises and bequests of lands or tenements should be in writing and signed by the testator, or by some other person in his presence and by his direction, and should be attested and subscribed in the testator's presence by three or four credible wit- nesses.^ This statute has been the rough model, directly or remotely, of all the legislation upon the subject in this country. That statute gave place, in the first year of the present reign in England, to more extended and definite legisla- tion. This later le2:islation provides that „,.,, . , ° "^ Wills Act: all wills (which are not nuncupations) shall American legis- 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 1 29 Car. II. c. 3, § 5. 38 THE LAW OF WILLS. of two or more witnesses present at the same time, and attesting and subscribing the will in the presence of the testator.^ Similar legislation, in many cases with no material difference, has taken place in this country; but for the present purpose nothing beyond the requirement of a writing will be considered. Upon that point the law is that the writing must be taken as the final evi- dence of the testator's intention,^ and the writing, to be a will under the statute, must be a completed written will. In accordance with this statement of the law, mere parol or even written testamentary declarations by a tes- tator, of his wishes or intentions in regard tions at^varl^" ^o the disposition of his property, whether ance with will: contemporaneous with the execution of the fraud: trust. . ^ will or before or after, are not allowed in evidence, in the absence of fraud, ^ to affect the written will.^ The testator cannot even create a valid testamen- tary trust, not duly executed and attested, in opposition to the terms of his written testament, — unless to exclude evidence of the trust would enable a devisee or legatee to commit a fraud upon another; in that case the trust, though oral, may be proved. Thus it is permitted to show that the testator has been induced by a devisee or 1 1 Vict. c. 26, § 9. This statute is called the Wills Act. 2 Foster v. Smith, 156 Mass. .379, 385 ; Smith v. Smith, 54 N. J. Eq. 1 ; Jackson v. Alsop, 67 Conn. 249 ; Priest v. Lackey, 140 Ind. 399 (equity cannot correct mistakes not apparent on the face of the will) ; Hawke ?'. Chicago Railroad, 165 111. 561 ; In re Langford, 108 Cal. 609 ; Kirkpatrick v. Jenkins, 96 Teun. 85; Gilmor's Estate, 154 Penn. St. 523. 3 Fraud on the testator may of course te shown hy oral evidence. Bigelow, Fraud, i. 187-190. 4 Orth IS. Orth, 145 Ind. 184, 190; Olliffe v. Wells, 130 Mass. 221 ; Smith V. Smith, 54 N. J. Eq. 1. 'WRITTEN INSTRUMENT.' 39 legatee of the will, by promise or otherwise, to omit from his will a gift which he would have made had not such inducement been held out to him.^ In such a case equity, it is said, rather than the testator, raises a trust and converts the devisee or legatee into a trustee for the purpose of compelling him to carry out the intention of the testator, thus preventing him from committing a fraud by taking the property to himself.^ But equity never raises such a trust except in cases in which the devisee or legatee in some way, by word, act, or mis- leading silence, induces or at least encourages the testa- tor to give the property to him in reliance upon his honesty.^ In some of the States legislation distinguishes in re- gard to holographs (also written ' olographs '), or unat- tested wills written entirely by the testator. '' '' Holographs. Thus under such legislation it is laid down that a will not properly executed with subscribing wit- nesses may still be good as a holograph if it answer the requirements of the law as such a will.* Nor will the fact that the instrument shows that attestation was con- templated and not carried out operate against it as a holograph.^ 'And though one's will itself be not a holo- graph, there may be a holographic codicil to it.® So, too, an ordinary attested will may under such legislation 1 Schultz's Appeal, 80 Penn. St. 396, 402 ; In re O'Hara, 95 N. Y. 40.3 ; Olliffe v. Wells, 130 Mass. 221, 223 ; Hooker v. Axford, 33 Mich. 4.53 ; Dowd v. Tucker, 41 Conn. 197 ; Barrell v. Hanrick, 42 Ala. 60; McLellan ?;. McLean, 2 Head, 684 ; Bigelow, Fraud, i. 457-459. But see the distinction stated in Olliffe v. Wells. 2 Schultz's Appeal, supra ; In re O'Hara, supra. ^ Same cases. * Brown r. Beaver, 3 Jones, 516. ^ Perkins i'. Jones, 84 Va. 358. 6 In re Soher, 78 Cal. 477. 40 THE LAW OF WILLS. be revoked by a holograph.^ But it is fatal to a holo- graph that any part of it, even the date, is printed.^ Figures, however, may be written, to express the amount bequeathed.^ The requirement of a writing is satisfied by the pro- duction of a printed or lithographed form, with or Equivalents of without blanks for names of beneficiaries, writing. amount to be given, and similar items, to be filled up in writing. This, which doubtless is sound construction of such statutes as are above referred to, is itself matter of legislation in England, with a view, no doubt, to prevent any question upon the point.* Such instruments are constantly admitted to probate in England.^ The American statutes do not require the use of ink; a pencil may be used.^ But when the question is whether the testator intended the paper in question as a final testamentary declaration of his mind, or whether it was only preparatory to a more formal disposition, the material with which it was written be- comes a very important circumstance.'' Alterations in pencil of an executed will naturally stand in a less favored light. Such alterations may perhaps be allowed in probate; but the presumption, at least in England, though not everywhere here, is that where alterations in 1 Reagan v. Stanley, 11 Lea, 316. 2 In re Billings, 64 Cal. 427. 8 In re Vanhille, 49 La. An. 107. * 52 and .53 Vict. c. 63, § 20. ^ Jarman, 78. 6 Tomlinson's Estate, 133 Penn. St. 245. So in England, formerly at any rate. In re Dyer, 1 Hagg. 219 ; Parkin v. Bainbridge, 3 Phill. 321. ' Parkin v. Bainbridge, supra ; Rymes v. Clarkson, 1 Phill. 35. 'WRITTEN INSTRUMENT.' 41 pencil only have been made, they are deliberative and not final, whereas if they are in ink they are final. ^ A "will further may be written iqoon any material perma- nent enough to hold its language ; though' here again the nature of the material may be a circumstance of impor- tance upon a question whether the writing was intended to be final or only deliberative.^ 1 Hawkes v. Hawkes, 1 Hagg. 321 ; Edwards v. Astley, id. 490. But see Tomlinson's Estate, 133 Penn. St. 245. In regard to erasures as partial revocation, see chapter xii. 2 Rymes v. Clarkson, supra. 42 THE LAW OF WILLS. CHAPTER V. ' EXECUTED AND ATTESTED.' The statutes all require a signing of written wills. This may be by the testator's mark,^ even though he could Signature : write; ^ unless the statute requires the signing mark. Qf ^|jq testator's uame.^ Anything may be taken for a mark ; the initials of the testator are enough ; * the use of a wrong or an assumed name will suffice, since such a signature might well be treated as the equivalent of a mark.^ For the same reason the signature of the tes- tator's first name alone satisfies the law.^ It would not in- validate the execution that against the mark a wrong name was written,^ or that the testator himself was wrongly named in the body of the will.'' Of course another person may guide his hand, whether in writing his own name or in 1 Fritz V. Turner, 46 N. J. Eq. 515 ; Eobinson v. Brewster, 140 111. 649; Main v. Eyder, 84 Penn. St. 217; Long v. Zook, 13 Penn. St. 400; Thompson v. Thompson, 49 Neb. 157 ; Bailey v. Bailey, 35 Ark. 687; St. Louis Hospital v. Wegman, 21 Mo. 17; Hanswyck v. Wiese, 44 Barb. 494; Upchurch v. Upchurch, 16 B. Mon. 102; Chase v. Kit- tredge, 11 Allen, 49; Higgins v. Carlton, 28 Md. 115. 2 Jackson v. Van Dusen, 5 Johns. 144 ; St. Louis Hospital v. Weg- man, supra ; Smith v. Dolby, 4 Harrington, 350. See Fritz v. Turner, .46 N.J. Eq. 515. 8 In re Walker, 110 Cal. 387, 395, 396. So in New York. Id. See In re Guilfoyle, 96 Cal. 498. * In re Savory, 15 Jur. 1042. 6 Knox's Estate, 131 Penn. St. 220. See Eook v. Wilson, 143 Ind. 24. 6 In re Clarke, 4 Jur. N.s. 243 ; s. c. 1 Swab. & T. 22 ; Book v. Wilson, 143 Ind. 24; Cleveland ?;. S])ilmau, 25 Ind. 95. 7 In re Dowse, 31 Law. J. Prob. 172. 'EXECUTED AND ATTESTED.' 43 making his mark.^ And the testator might write his name upon a separate piece of paper and paste the paper, or otherwise fasten it, to the will.^ In case of a re-execution of a will it would not be sufficient for the testator to pass over his former signature with a dry pen; he must do something which appears on the face of the paper. ^ Sealing is not required and will not of itself take the place of signing.* It is possible, however, that the use of a seal might be such as to justify the „ ,. . . , ■ ^ . Sealing, courts in treating it as the equivalent of a mark ; as for instance where a testator uses a seal con- taining his initials, impressing it upon the writing with intent to execute the same as a will,^ such intent appear- ing upon the instrument itself. The statutes generally do not require the testator to sign the will in person ; he may direct ^ an- gis^nature by other to sign it for him.'' The person so another. directed and acting may be a witness ^ to the will and 1 Fritz V. Turner, 46 N. J. Eq. 51.5 ; Wilson v. Bedard, 12 Sim. 28; Vandruff v. Einehart, 29 Penn. St. 2.32; Vines v. Clingfost, 21 Ark. 309; McMechen i'. McMechen, 17 W. Va. 683. 2 Cooke V. Lambert, 32 Law J., Prob. 182 ; In re Horsford, L. R. 3 P. &D. 211. 3 See Playne v. Scriven, 1 Rob. Eccl. 772 (witness). * In early times execution of written instruments by sealing with- out signature was common ; but the statutes now require that wills shall be signed. s In re Emerson, 9 L. R. Ir. 443. 6 Knowledge and assent are not equivalent to direction. Murry v. Hennessey, 48 Neb. 608. ■^ Riley v. Riley, 36 Ala. 496 ; Vines v. Clingfost, 21 Ark. 309; Murry v. Hennessey, 48 Neb. 608 ; Vandruff v. Rinehart, 29 Penn. St. 232. See also Main v. Ryder, 84 Penn. St. 217 ; In re .lenkins, 43 Wis. 610 ; Simpson v. Simpson, 27 Mo. 288. Contra in New Jersey. Fritz V. Turner, 46 N. J. Eq. 515. 8 St. Louis Hospital i'.Wegman, 21 Mo. 17 ; Simpson v. Simpson, supra. 44 THE LAW OF WILLS. may sign the will with his own name instead of the tes- tator's.^ Indeed the statute in some States requires that the act shall be done by a witness, when the testator himself does not sign; in which case, and perhaps in all cases, the witness is required to add that he wrote the signature by request of the testator.^ An impression of the testator's signature, made by his direction, has been held a good signature of the will.^ The testator need not sign in presence of the witnesses to the will unless statute require that he shall. ^ The fact that wills are often written upon several sheets of paper makes it a matter of proper precaution that the „.,, .,^ testator should sign each sheet; but the stat- WiUs written ° ' on several utes do not require such care, and it is very seldom taken. One signature is enough ; ^ and the question, if one be made, whether all the sheets were attached at the time of signing, or whether there has since been a fraudulent addition to the instrument, is for the jury.® There is probably a presumption that there has been no such addition; " also that any apparent change of order in the sheets preceded execution.* Next in regard to the position of the testator's signa- Position of sig- ture. The mere provision of statute that nature. there shall be a signature by the testator does not require that the signature shall be at the end of 1 In re Clark, 2 Curteis, 329. 2 Simpson v. Simpson, supra. 8 Jenkyns v. Gaisford, 3 Swab. & T. 93. * Chase v. Kittredge, 1 1 Allen, 49. See infra, acknowledgment. 5 Tonnele v. Hall, 4 Comst. 140 ; Wikoff's Appeal, 15 Peun. St. 281 ; Jones I'. Habersham, 63 Ga. 146. 6 Giuder v. Farnnm, 10 Barr, 98. T Marsh i-. Marsh, 1 Swab. & T. 528. 8 Rees V. Eees, L. R. 3 P. & D. 84. See Grubb's Estate, 174 Penn. St. 187. 'EXECUTED AND ATTESTED.' 45 the ■will. So, at any rate, it is more generall}' helcl,^ though uo doubt ' signature ' in ordinary speech signi- fies a name at the end of a writing. And that fact has caused the courts to declare that anything alleged to be a signature, which does not come at the end of the will, must be shown to have been written with intent to exe- cute the instrument.^ It has accordingly been laid down, under such statutes, that where the testator's name ap- pears only at the beginning or in the body of the will the will must be in the testator's handwriting, and that he must have intended the signature, wherever written, to be a final execution.^ If there be language in the will indicating that it was intended that a signature should be added, there is no execution without such signature. Such a case would be made by the appearance at the end of the will of a clause of execution, such as ' In testi- mony whereof I have hereunto set my hand,' &c.* Evidence that writing the testator's name elsewhere than at the end of the will was intended as an execution may appear upon the will itself, and that Signature not too without express language to that effect. ^^ ^"'^ "^ ^'''^• Thus a testamentary instrument not signed at the foot* but having the testator's name at the top, with a seal attached, and manifesting deliberation and care in the disposition of property, has been held to have been duly signed, under statute merely requiring the testator's signature.^ Or perhaps the intention may be shown 1 Armstrong i\ Armstrong, 29 Ala. 538 ; Watts v. Public Adm'r, 4 Wend. 168 ; lu re Miles, 4 Dana, 1 ; Adams y. Field, 21 Vt.256; Catlett i;. Catlett, 55 Mo. 330. Contra, Warwick v. Warwick, 86 Va. 596. 2 In re Booth, 127 N. Y. 109. 8 Catlett V. Catlett, 55 Mo. 330. 4 Id. 6 Watts V. Public Adm'r, supra. See In re Booth, 127 N. Y. 109. 46 THE LAW OF WELLS. by external evidence; that is, by evidence not in the will.i Other legislation requires the signature of the testator to be written at the end of the will."^ But even this leg- islation has not always cut off room for doubt, for what is meant by ' end of the will ' may not always be clear.'* Thus suppose that after the signature, otherwise at the end of the will, there appears part of a sentence left incomplete before the signature,'* or a sentence authen- ticating some correction in the writing,^ or words ex- plaining some expression in it, or giving the place of residence of some one named, and that such addition, being written before execution, has not the testator's signature, is the will signed at ' the end ' ? Probably it is, unless the language of the statute is so precise as to preclude such interpretation; substantial compliance would be enough.^ But if what is added contains some new or altered disposition of property, or if it consists in the appointment of executors or trustees, it seems that the signature of the testator preceding is not at the ' end ' of the will.'' ^ Ramsey v. Ramsey, 13 Gratt. 664; Dunn v. Dunn, L. R. 1 P. & D. 277. 2 In re Walker, 110 Cal. 387. So in other States. 8 See Winelaud's Appeal, 118 Peun. St. 37; Baker v. Baker, 51 Ohio St. 217 ; Hallowell v. Hallowell, 88 Ind. 251 ; Flood v. Pragoff, 79 Ky. 607; In re Conway, 124 N. Y. 455; Watts v. Pub. Adm'r, supra. * In re Kimpton, 3 Swab. & T. 427 ; Baker v. Baker, 51 Ohio St. 217 ; and many other cases. 5 In re Wilkinson, L. H. 6 P. D. 100. 6 In re Voorhis, 125 N. Y. 765; Baker v. Baker, 51 Ohio St. 217 ; Strieker v. Groves, 5 Whart. 386. See also In re Birt, L. R. 2 P. & D. 214 ; In re Coombs, L. R. 1 P. & D. 302. 7 Baker v. Baker, 51 Ohio St. 217. Compare In re Woods, L. R. 1 P. & D. 556, on the present English statute, which however is very precise. 'EXECUTED AND ATTESTED.' 47 Statutes further require either that the will itself as such, or that the testator's signature, being visible to the witnesses to the will, shall be acknowl- Acknowledg- edged by the testator before the witnesses ; ^ "^"t- some statutes, indeed, require both of these acts. The first-mentioned step, acknowledging the will as such, is called publication. This is not necessary unless called for by statute; in the absence of statute, then, the wit- nesses need not know that they are subscribing a will.^ Proof of publication, when required, may be made without evidence of express words, such as, ' This is my will, ' or ' my last will ; ' any communication or act by the testator, or another duly acting for him, which in- forms the witnesses plainly that he intends the instru- ment to operate as his will is enough.^ The nephew of a testatrix who lay on her deathbed, in extremis, brought into the room three men to witness a will which had been prepared (by direction of the nephew) for her to sign; whereupon the testatrix roused up and exclaimed, ' What does this mean? ' The nephew, as he testified, replied, ' I got these men to witness the will.' The testatrix then made her mark to the instrument, and the witnesses signed the attestation clause. This was held a compli- ance with the statute in regard to acknowledgment.* ^ In re Laudy, 148 N. Y. 403 ; In re Mackay, 110 N. Y. 611. 2 Dewey v. Dewey, 1 Met. 349 ; Tilden v. Tildeu, 13 Gray, 110; Dean V. Dean, 27 Vt. 746 ; Watson v. Pipes, 32 Miss. 451 ; Huff i-. Huff, 41 Ga. 696 ; Allen v. Griffin, 69 Wis. 529 ; Canada's Appeal, 47 Conn. 450 ; Flood v. Pragoff, 79 Ky. 607. 3 Coffin V. Coffin, 23 N. Y. 9 ; Elkinton v. Brick, 44 N. J. Eq. 154 ; Darnell v. Buzby, 50. N. J. Eq. 725; Hildreth v. Marshall, 51 N. J. Eq. 341, 349. Publication may be by act, as by sign, as well as by words. Bobbins v. Robbins, 50 N. J. Eq. 742. * Hildreth v. Marshall, 51 N. J. Eq. 241, 249. ' Her intelligent execution of the will, after such a declaration, is an acquiescence in it and assent to it.' 48 , THE LAW OF WILLS. But under such requirement of the law some act or declaration by the testator or another for him should be shown whereby, at the time of the execution, he indi- cated the instrument to be his last will and desired the witnesses to sign it as such.^ Accordingly the mere knowledge of the witnesses of the nature of the instru- ment will not satisfy the statute.^ Nor will it satisfy the statute that the testator requests the witnesses to sign ' this paper.' ° Beading the will before the testator and the witnesses, all then signing at the same time, is, however, enough.* The act or declaration, too, need not be directly by the testator; another, for instance the scrivener, may act for him, if clearly authorized to do so.^ The publication should be before all the witnesses at the same time.^ Acknowledgment of signature need not be proved under a requirement of publication.' The statute in most of the States requires no more than that the testator shall acknowledge his signature ; ® but, like publication, even this acknowledgment of sig- nature is not necessary unless statute requires it.^ The two acts, however similar in appearance, differ materially from each other. Thus no acknowledgment of the will as a will, however plain the language, can amount to an 1 Bagley r. Blackman, 2 Laus. 41 ; Tunison v. Tunisou, 4 Bradf. 138; Rutherford v. Rutherford, 1 Denio, 33; In re Xelson, 141 N. Y. 152 (what amouuts to a request to wituess). 2 Gilbert v. Knox, 52 N. Y. 125 ; In re Nelson, supra. 3 In re Rawlins, 2 Curteis, 326 ; Uott v. Geuge, 3 Cartels, 160. See Hildreth v. Marshall, 51 N. J. Eq. 241. * Moore v. Moore, 2 Bradf. 261. s Gilbert v. Knox, supra ; Peck i'. Gary, 27 N. Y. 9 ; In re Nelson, supra; Elkinton v. Brick, 44 N. J. Eq. 154; Hildreth v. Marshall, 51 N.J. Eq. 241, 949. 6 Seymour r. Van Wyck, 2 Seld. 120 ; Tyler i-. Mapes, 19 Barb. 448. 7 Hogan V. Grosvenor, 10 Met. 54 ; Dewey v. Dewey, 1 Jlet. 349. 8 See, e. g., Grimm v. Tittman, 113 Mo. 56. 8 Dewey v. Dewey, 1 Met. 349 ; Hogan v. Grosvenor, 10 Met. 54. 'EXECUTED AND ATTESTED.' 49 ackuowledgmeut of the testator's signature.^ Still it is uot necessary that the testator should iu words say, ' That is my signature,' or the like;- the statute is complied with if it appears that the signature was written upon the will when the will was shown to the witnesses and was seen, or might have been seen, by them when they subscribed.^ That amounts to showing the signature, and requesting the witnesses thereupon to subscribe is practically acknowledging it.^ But a statute which re- quires a signing by the testator in presence of the witnesses would not be met by an acknowledgment of a signature not written in their presence.^ The acknowledgment of signature, like publication, must be made in the presence of the required number of witnesses present at one and the same time.® It will not suffice that acknowledgment has been made to some of the witnesses, or to all of them unless they were present simultaneously. If the statute requires proof of both steps, publication and acknowledging the signature, each must be distinctly 1 See Lewis v. Lewis, 11 N. Y. 220 ; s. c. 13 Barb. 17 ; Iu re Raw- lins, 2 Curteis, 326 ; In re Harrison, id. 863 ; Hott v. Genge, 3 Curteis, 160; Blake v. Blake, 7 P. D. 102. 2 See In re Laudy, 148 N. Y. 403 ; In re Maekay, 110 N. Y. 611. 8 Allison u. Allison, 46 IU. 61. * In re Maekay, 110 N. Y. 611; Willis v. Moot, 36 N. Y. 486 Dewey v. Dewey, 1 Met. 349 ; Ela v. Edwards, 16 Gray, 91 ; Blake v. ICnight, 3 Curteis, 547 ; Keigwin v. Keigwin, id. 607 ; In re Aslimore id. 756. The testator may sign directly after acknowledgment. Jack son V. Jackson, 39 N. Y. 153. s Mickle V. Matlack, 2 Harrison, 86 ; Den v. Milton, 7 Halst. 70 Combs V. Jolly, 2 Green, Ch. 625 ; Abraham v. Wilkius, 17 Ark. 292 See Hildreth v. Marshall, 51 N. J. Eq. 241. 6 Stirling v. Stirling, 64 Md. 138; Chase r. Kittredge, 11 Allen, 49; Welch V. Adams, 63 N. H. 344 ; Sisters of Charity v. Kelly, 67 N. Y. 409. 4 50 THE LAW OF WILLS. proved. Proof of publication will not make proof of Publication and acknowledgment of signature, nor will proof acknowledg- of acknowledgment of signature make proof ment. „ , , . , . , of publication. ^ The next requirement of statute is the attestation of the will by the signature of witnesses. At least two, in some States at least three, persons must Attestation: ^^ ^ ^j^ jU^ -pi^g English Statute of number of wit- "■^^"^'^^ = nesses: compe- Frauds^ required the attesting witnesses to *^°''-^' be 'credible; ' later legislation both in Eng- land and in this country requires that they shall be ' competent.' ^ The requirement of competency calls, of course, for mental qualification ; idiots and lunatics are incompetent, while infancy is no disqualification. Blind- ness cannot disqualify a witness, where (as generally is the case) the testator is permitted to acknowledge his signature before the witnesses. Ability to hear is not necessary ; the witness may be made to understand what is wanted, by signs or by writing.^ There is also an important disqualification arising from interest, like the ancient common-law disqualifi- cation of interest in witnesses before the courts. It is looked upon as inconsistent that one who takes an interest under the will should be an attesting witness to its validity. Under the English Statute of Frauds one to whom a devise or a legacy was made was thereby deemed not ' credible ' as a witness to the will; that is, the gift 1 Baskin v. Baskin, 36 N. Y. 416 ; Lewis v. Lewis, 11 N. Y. 220. 2 29 Car. II. c. 3, § 5. 3 ' Credible' held to mean 'competent.' Fisher v. Spence, 150 111. 253, 257. « The attestation clause is some evidence of dae execution. In re Nelson, 141 N. Y. 152 ; In re Bernsee, id. 389 ; In re Cottrell, 95 N. Y. 399 ; infra, statements of attesting clause. 'EXECUTED AND ATTESTED.' 51 rendered him incompetent to attest the will, at all events if he accepted the bequest. It was doubtful, however, whether the question of competency was to be determined as of the time of the execution of the will or of the judicial inquiry at the probate. The better view appears to have been that the critical moment was the time of execution, since it was then that the testator's sanity was to be pronounced upon.^ In some of our States, however, the other view has obtained in the statutes, and the consequence is that the attesting witness becomes competent by releasing his interest, or by his refusing to accept the gift, or receiv- ing it in advance in the lifetime of the testator. In many other States statute has made the attesting witness competent by depriving him of the benefit. This is, of course, an indirect declaration that the test of competency is to be determined as of the time of exe- cuting the will. It is as if the statute said that a devisee or a legatee should not witness the will, if he desires the gift; the moment" he attests the will he makes void the bequest. In one or two of the States a legatee or a devisee neither loses the gift by attesting the will, nor is incom- petent to attest it.^ The Massachusetts statute does not apply to attesting witnesses ; the competency of such wit- nesses is determined by the rules of the common law.* The witnesses, like the testator, may sign by mark.* So, too, the initials of a witness may be used for his 1 Fisher v. Speuce, 150 111. 253, 257 ; Schouler, Wills, § 351. 2 Vester v. Collins, 101 N. C. 114; Hampton v. Hardin, 88 N. C. 592. See, upon the whole subject, Jarman, 69. ' Hitchcock V. Shaw, 160 Mass. 140, 141. See Hawes v. Humphrey, 9 Pick. 350, 356. As to the competency of husband or wife of devisee or legatee, see Lippincott v. Wikoff, 54 N. J. Eq. 107 ; Fisher v. Spence, 150 111. 253. * Davis V. Semmes, 51 Ark. 48; Osborn v. Cook, 11 Cush. 532; 62 THE LAW OF WILLS. signature,^ that is, if they are intended as an attestation Attesting by ^f the executiou of the will. And one wit- mark. Qggg jjjay ill some States sign the name of another, if the latter being present at the time request him to do so.^ The validity of such act depends upon the authority of the person so acting, and not upon the sort of act he does.^ Indeed there appears to be no dis- tinction in regard to the form of signature between the signature of the testator and that of the witnesses to the will. In the absence of statute the witnesses may subscribe the will anywhere. Thus where a will ends on the first Position of page of a folded sheet, the witnesses may attestation. ii'igw on the fourth page.^ So a will end- ing in the middle of the third page, and one of the wit- nesses signing at the end, the other or others may sign in a vacant space on the second page opposite the other signature.^ But where any part of the will follows the signature of witnesses, it must be shown that such part was written before the witness or witnesses signed. But in some States attestation must be made at the end of the will, and any unnecessary or unreasonable blank between the signature of the testator and the attestation will be fatal. ^ In some States the attesting witnesses 'o Lord V. Lord, 58 N. H. 7 ; Pridgen v. Pridgen, 13 Ired. 259 ; McFar- land V. Bush, 94 Tenn. 538. 1 In re Christian, 2 Rob. Eccl. 110. 2 Jesse V. Parker, 6 Gratt. 57; Upchurch v. L^pchurch, 16 B. Men. 102. Contra, Horton v. Johnson, 18 Ga. 396; McFarlaud c. Bush, supra; Simmons v. Leonard, 91 Tenn. 183. 3 Lord V. Lord, 58 N. H. 7 ; Jesse v. Parker, and Upchurch v. Upchurch, supra. * In re Braddock, 1 P. D. 433. 5 Roberts v. Phillips, 4 El. & B. 450. * Soward i'. Soward, 1 Dm\ 126. 'EXECUTED AND ATTESTED.' 53 may sign ivithin or at the end of the attestation clause.-' It appears to be immaterial, in the absence of particular provision by statute, whether the witnesses sign in point of time before the testator signs, provided that attesta- tion and execution are both attended to at one time, so that the witnesses can see the testator's signature.^ The witnesses must, in most States, sign at the request, actual or implied, of the testator;^ not necessarily by the personal request of the testator, for the Request to request may come from any one authorized witness. by him to make it, as, for instance, the draughtsman of the will, but it must in law be by request of the testa- tor.* No particular form of request is prescribed ; any communication importing a request, though addressed to but one of the witnesses, will suffice if the fair inter- pretation of the act is that the request was intended for the other or others as well.^ The witnesses need not subscribe the will in the pres- ence of each other unless (which is unusual) Presence of statute require them to do so.^ But they must witnesses, subscribe, according to most of the statutes, in the 1 Franks i'. Chapman, 64 Texas, 1 .59. 2 O'Brien v. Galagher, 25 Conn. 229 ; Sechrest v. Edwards, 4 Met. (Ky.) 163 ; In re Bernsee, 141 N. Y.389,.392 ; InreMackay, llON. Y.611. 3 Eeqnest by the testator is not necessary in Nebraska. Thompson V. Thompson, 49 Neb. 1.57. * In re Nelson, 141 N. Y. 152 (what amounts to a request) ; Gilbert V. Knox, 52 N. Y. 125; Peck v. Cary, 27 N. Y. 9 ; Dyer v. Dyer, 87 Ind. 13 ; Hildreth v. Marshall, 51 N. J. Eq. 241, 249. 5 Coffin V. Coffin, 23 N. Y. 9. ^ Grimm f. Tittman, 113 Mo. 56; Moore i'. Spier, 80 Ala. 129 Simmons v. Leonard, 91 Tenn. 183 ; Johnson v. Johnson, 106 Ind. 475 Welch V. Adams, 63 N. H. 344; Chase v. Kittredge, 12 Allen. 49 Gaylor's Appeal, 43 Conn. 81 ; Willis v. Moot, 36 N. Y.486 ; In re Smith, 52 Wis. 543 ; Flinn v. Owen, 58 Dl. 1 11 ; Webb v. Fleming, 30 Ga. 808. 54 THE LAW OF WILLS. presence of the testator.-^ The object of the require- ment plainly is that the testator may, if possible, be able to see that the instrument signed by the witnesses is the instrument executed by him as his will ; it is thus that he himself is assured that when the will is offered ,for probate there will be evidence, in the attestation of these witnesses, to support the will. Great importance, then, is attached to the word ' presence, ' in the expression ' in presence of the testator ' or the like. The worQl has always been treated as technical; but exactly what it means in certain cases is a ditHcult ' Presence' a questiou.^ 'Presence ' clearly does not mean technical word, within sight, although the witnesses must be where they might be seen; for a man may see what is going on across the street, which certainly would not be in his presence. A blind man too can make a will; so, of course, could a man whose eyes were bandaged. The presence of others may be known by other senses than sight, as by heai'ing or feeling. Accordingly, a man though hav- ing unimpaired sight may depend upon his other senses to give him information of the presence of people. A recent authority ' furnishes an illustration. The testator had received a severe injury, and was lying upon a bed, unable to move. His sight was un- impaired, but he could only look upward and could not see what took place when his will was attested. The attestation took place only about nine feet from him, in an adjoining room the door of which was open, and the act was in the line of vision had he been able to turn 1 See the same cases ; al.so Swain v. Edmunds, .53 N. J. Eq. 142, and cases infra. 2 What follows is the substance of a note by the present writer to the last ed. of Jarman on Wills, p. 91. 8 Riggs V. Riggs, 13.T Mass. 238. 'EXECUTED AND ATTESTED.' 55 in that directiou. A few days afterwards an attestation was made to the will by witnesses within the same room in which the testator lay, and only four feet from him. The attestation in each case was held to have been made in the presence of the testator. Some of the authorities, howev^er, appear to hold that ability to see what is going on, in the case of a testator possessed of sight, is necessary. If, it is considered, the testator, being out of range of sight in his present position, can turn or move so as to see without an effort endangering life, the witnesses otherwise in a position to satisfy the statute are in his presence. But if for lack of strength he can get into position to see them only at the risk of his life, then, wherever the witnesses may be, they are not in his presence.^ But this is questionable doctrine; it is practically taking from a man perfectly competent, it may be, to make a will the right to do so. A man is in my presence if I can reach him, or if, being in the same room with me, or in an adjoining room open directly between him and me, I can talk with him or hear his movements, notwithstanding the fact that I may be unable to turn my body or my head so as to see him. It should be enough to say that when I can see from the place where I am, by turning if need be, nothing must be in the way of my seeing what is going on; if in such a case my vision is cut off, what I cannot see may be considered as not in my presence.^ That is simply because the chief sense — that is, the sense usually and naturally relied upon for ascertaining such a fact as the presence of another — is fully at my service in regard to objects within its own operation. If it is not so at 1 Jones V. Tuck, 3 Jones, 202; Graham v. Graham, 10 Ired. 219; Maynard v. Vinton, 59 Mich. 139 ; Aikia v. Weckerly, 19 Mich. .504. - Hamilton v. Fletcher, 64 Ga. 549. See Walker v. Walker, 67 Miss. 529. 56 THE LAW OF WILLS. my service, and there is no external impediment making vision impossible,^ I may have the benefit of any other trustworthy sense. Contiguity, with uninterrupted view between the testator and the subscribing witnesses, is both sufficient and essential.^ The authorities are agreed that it is not necessary that the attestation should be made in the same room, or Impediment to even in the place, ^ in which the testator is, "^''^^- so long as it is made within range of his sight if he can see. And perhaps it would be agreed that the same is true if the attestation is made within the cognizance of the testator's other senses, no closed walls intervening, — in case he is bereft of sight or has not the full use of his eyes.^ The better authorities gen- erally go no further. The rule would not extend, for instance, to making an acknowledgment of the attesta- tion by the witnesses equivalent to an attesting in the testator's presence. Still some of the courts have gone the length of treating such an acknowledgment as a com- pliance with the requirement of the statute.^ The testator further should be mentally capable of Cognition of recognizing the act of the witnesses ; his attestation. mere bodily presence would not be enough. Thus if a testator, after executing his will and before ^ It .seems to be no objection to an attestation that tlie curtain of a bed upon which the testator is lying is closely drawn, since he might draw the curtain aside. Newton v. Clarke, 2 Curteis, 320. 2 Witt V. Gardiner, l.')8 111. 176, 181. 3 Casson v. Dade, 1 Bro. C. C. 90, where the testatrix, sitting in her carriage and having there executed her will, could thence see the witnesses attest it through a window in an office where they did so. * Chase r. Kittredge, 11 Allen, 49. ^ Cook I'. Winchester, 81 Mich. 581 ; Parr am ore i;. Taylor, 11 Gratt. 220; Sturdivant v. Birchett, 10 Gratt. 67. 'EXECUTED AND ATTESTED.' 57 the attestation should become insensible, the attestation would be invalid.^ More than that, the testator must be actually conscious of what the witnesses are doing; if a will were attested in a secret manner, the fact that this was done in the room in which the testator was and within sight by him, would not suffice.^ All this, however, is a matter of statutory language, and it may be that in some States the statute does not require attestation to be made in the testator's presence. In such case acknowledgment of the act will suffice. Thus acknowledgment is enough under a statute merely requiring the attesting witnesses to sign their names as witnesses, ' at the request of the testator,' ^ The statements made in the attestation clause are not conclusive ; the witnesses themselves may show that they are not true.* But the statements, when statements of clear, as they usually are, are not easily attesting clause. overturned.^ Thus clear proof is required to overcome the statement that the witnesses signed in the testator's presence ; ® failure of memory upon the point by the 1 Right V. Price, Doug. 241 ; Jarman, 89. ^ Jenuer v. Finch, 5 P. D. 106 ; Jarman, 89. 3 Chase v. Kittredge, 11 Alleu, 49, Gl ; Puddou v. IMcDonald, 1 Bradf. 352 ; Hoysradt v. Kingman, 22 N. Y. 372. Attestation in the same room with the testator is prima facie in his presence. Neil v. Neil, 1 Leigh, 6 ; Ayres v. Ayres, 43 N. J. Eq. 56.5. Contra if not in the same room. Neil v. Neil, snpra. 4 Darnell v. Buzby, 50 N. J. Eq. 725 ; Rohhins v. Pobbins, id. 742, 749. 5 See Tn re Hogan, 73 Wis. 78 ; In re Nelson, 141 N. Y. 152 ; In re Hesdra, 119 N. Y. 615; In re Iliggins, 94 N. Y. 554 ; In re Pepoon, 91 N. Y. 255 ; Rugg v. Rugg, 83 N. Y. 592 ; McCurdy v. Neall, 42 N. J. Eq. 3.33 ; Farley v. Farley, 50 N. J. Eq. 434 ; Darnell r. Bn/.hy, id. 725 ; Swain r. Edmnnds, 53 N. J. Eq. 142 ; Hildreth v. IMar.shal], 51 N. J. Eq. 241, 249 ; Wright v. Rogers, L. R. 1 P. & D. 678 (requiring ' strongest evidence ' to overturn the clause). ^ In re Hogan, supra. 58 THE LAW OF WILLS. witnesses will not suffice ; ^ indeed a will can be proved against tlie evidence of the attesting witnesses.^ It is desirable that an attestation clause sliould be added, stating that the witnesses have subscribed or Attesting clause attested the will at the request of the tes- not required. tator and in his presence (simultaneously, if that is required), because such statement will fur- nish permanent evidence of the facts ; but such a clause is not necessary unless statute require it, the mere sig- nature of the witnesses, animo attestandi, being enough.^ That will be sufficient to raise a presumption that the statutory requirements have been complied with, though such presumption will not be as strong evidence of tlie fact as a clear attestation clause stating the facts would afford.* Upon the death of the witnesses to the will, proof of execution begets a presumption that all the details Death of wit- thereof were according to law, unless the nesses. contrary appears upon the face of the will.^ There are cases, however, in which wills have been exe- cuted under powers prescribing certain forms. In such cases, though the witnesses are dead or cannot remem- 1 In re Hogan, supra ; In re Pepoon, supra. 2 Wbolley v. Woolley, 95 N. Y. 231 ; In re Cottrell, id. 329. 3 Swain V. Edmunds, .53 N. J. Eq. 142 ; Olerich v. Ross, 146 Ind. 282; Rol)inson v. Brewster, 140 111. 049; Berberet v. Berberet, 131 Mo. 399 ; In re Phillips, 98 N. Y. 267 ; Allen v. Jeter, 6 Lea, 672 ; Peake v. Jenkins, 80 Va. 293 ; Webb v. Dye, 18 W. Va. 376 ; Moale v. Cutting, 59 Md. 510 ; Ela v. Edwards, 16 Gray, 91. * See, Woolley v. Woolley, 95 N. Y. 231 ; Brown v. Clark, 77 N. Y. 369 ; In re Kellum, 52 N. Y. 517 ; Elkiuton v. Brick, 44 N. J. Eq. 154 ; Ayres v. Ayres, 43 N. J. Eq. 565 ; In re Hogan, 73 AVis. 78. 5 Deupree v. Deupree, 45 Ga. 415, 442; Eliot r. Eliot, 10 Allen, 357 ; Barnes v. Barnes, 66 Maine, 286 ; Clark v. Dounorant, 10 Leigh, 22 ; Fatheree v. Lawrence, 33 Miss. 622. •EXECUTED AND ATTESTED.' 59 ber, no presumption of compliance arises unless the will itself or the attestation clause states the facts. -^ Alterations need not be specially attested, or even signed by the testator, unless statute require, where there is legal evidence that they were made Attesting alter- before execution; in which case the execu- ^twus. tion and attestation cover them. But alterations of substance, which do not appear to have been made be- fore execution, should by the law in most States be signed by the testator and attested by witnesses as in the case of the will itself, for such alterations are them- selves testamentary in nature. If not signed and at- tested, such alterations will not be allowed, and the will as it stood without them, if still legible in that form, will prevail.^ But a different rule prevails in some States, as will be seen in the chapter on revocation.^ INDIRECT EXECUTIOX: EXTRINSIC DOCUMENTS. If the testator refers to external documents, will his signature to the will and the attestation of the witnesses thereto cover such documents; or, in order , 1.1 ... 1 .11 . Unattested doc- to make them a part of the will must they uments made be separately signed and attested? The pa^ of the will. answer given is, that any document, itself attested or not, if in existence at the time of the execution of the will, and consistent with law, may by reference be incorporated into and made part of the will, or be set up by it, provided that the reference to it is distinct and clearly identifies the document in question, or renders ^ Deupree v. Deupree, supra. 2 Eschbach v. Collins, 61 Md. 478. See Lovell v. Quitman, 88 N. Y. 377, 381 ; Law r. Law, 83 Ala. 432. '^ Chapter xii. 60 THE LAW OF WILLS. identification practicable by extrinsic evidence. That is, such document need not be separately signed by the tes- tator and witnessed for him.^ The instrument is con- sidered to be identified with the will as if it had been repeated word for word in the will itself. This testamentary use of external documents is of far-reaching importance; more so, perhaps, than the Importance of mere statement of the doctrine would at the doctrme. g^.g^ suggest. The doctrine applies to all documents of every description - which might, consis- tently with law, have been repeated in the will. In this way one may by will dispose of all the lands conveyed or devised to one by a certain deed or will; and, what is still more striking, unexecuted or defectively executed wills, or wills otherwise invalid, if capable of lawful execution, may be made good. Thus a codicil executed according to law, that is, as a testamentary instrument, may republish one's will so as to give effect to a devise or a legacy otherwise void on the ground, for instance, that the devisee or legatee is a witness disqualified by law.^ So a will invalid because executed under undue influence may be confirmed by a later codicil in which the testator has acted freely.* The effect of the codicil in such a case is to give the same force to the will as if it had been executed at the date of the codicil.^ By the 1 Habergham v. Vincent, 2 Ves. Jr. 204, 228 ; In re Kehoe, L. R. 13 Ir. 13; Abbott's Cases, p. 191; Burton v. Newbery, 1 Cli. D. 234; Newton r. Seamen's Friend Soc, 130 Mass. 91 ; Baker's Appeal, 107 Penn. St. 381 ; Vogel o. Lehritter, 139 N. Y. 223, 235 ; Brown r. Clark, 77 N. Y. 360; Tonnele r. Hall, 4 Comst. 145; Skinner v. American Bible Society, 92 Wis. 209. 2 See Newton v. Seamen's Friend Soc. 130 Mass. 91 Gray, C. J. 8 Mooers v. White, 6 Johns. Ch. 374, 375. 4 O'Neall V. Farr, \ Rich. 80. 5 Brimmer v. Rohier, 1 Cush. 118; Armstrong v. Armstrong, 14 B. Mon. 333. See Brown v. Clark, 77 N. Y. 369. 'EXECUTED AND ATTESTED.' 61 same process, too, a former codicil, defective for auy reason, may be made good by a later valid codicil.^ The following example of the last proposition will serve for the whole subject: A testator made a w^ll and two codicils, the first codicil not being . Illustration. attested. By the second, the wull and a codicil annexed thereto were described in what was now stated to be a second codicil to the said will. This second codicil being executed and attested according to law, the first was thereby held to have been validated.-^ The reference to the external document should be clear and distinct, and it should appear on the face of the will that the intention of referring to the docu- clear and dis- ment was to incorporate it into the will. A ^'"'^^ reference, reference to another instrument, however clear and dis- tinct such reference, is not enough to make it part of the will which refers to it.* It should be observed, further, that the writing referred to must be referred to as then existing,* and it must be in existence at the time of executing the Existing doeu- will. Accordingly a testator cannot by will "^®"'- reserve a power to dispose of an estate in the future by an instrument not executed as required by statute; he cannot make a future disposition of property a sub- ject of his will.^ The reason is, not that an instrument thereafter to be written cannot be sufficiently identified 1 Aaron v. Aaron, 3 DeG. & S. 475. 2 Aaron v. Aaron, supra. * See, e. g., In re Murray, 1896, P. 65. * In re Sunderland, L. K. 1 P. & D. 198 ; In re Kehoe, L. R. 13 Ir. 13 ; Abbott's Cases, p. 191. But if the external document is sufficiently referred to in the will, extrinsic evidence may be received, if needed, to identify a document produced as the one intended. Id. 5 Habergham v. Vincent, 2 Ves. Jr. 204 ; s. c. 4 Bro. C. C. 355 ; Thayer 62 THE LAW OE WILLS. by the will, but that the law does not allow the testator to declare by will what his will shall be. The statute contemplates only a present will, complete at the time of execution. The testator may, however, make the disposition of his bounty turn upon writings to be made or acts to be done, provided that these, if by him, are not to be testa- mentary. A testator devised land to ' the persons who shall be in copartnership with me at the time of my decease, or to whom I shall have disposed of my busi- ness.' It was urged against this provision that the tes- tator was leaving the determination of his devisees to an act not authorized by the statutory requirement ^ that wills must be in writing ; but the court denied this, and sustained the provision. The disposition itself was complete on the face of the will, and that was enough. The future fact, upon which the devisees were to be determined, was not testamentary, and therefore the provision did not violate the statute.^ V. Wellington, 9 Allen, 283; Langdon v. Astor, 16 N. Y. 9 ; s. c. 3 Duer, 477. If then the testator should afterwards make the disposi- tion mentioned in his will, that disposition would have to stand upon its own footing, as if the prior will had not been made. 1 The Statute of Frauds. 2 Stubbs V. Sargon, 2 Keen, 255 ; s. c. 3 Mylne & C. 507. Upon the validity of provisions in a will made in terms subject to oral arrange- ments made by the testator, see Smith v. Smith, 54 N. J. Eq. 1 ; Olliffe V. Wells, 130 Mass. 221, and the authorities reviewed in the latter case. NUNCUPATION.' 63 CHAPTER VI. * NUNCUPATION. The English Statute of Frauds did not require that wills of personalty should be written; but while legisla- tion on both sides of the Atlantic has done away with this distinction, an exception has ^S'saion. been made in England and in many of our States of what are called nuncupations, or peculiar oral wills. The basis of all this is found in the legislation of Charles the Second, the same Statute of Frauds. That statute declares that for preventing fraud in set- ting up nuncupative wills, no such will shall be good where the estate given shall exceed thirty pounds, and then only when proved by three witnesses at least, present when the will was made; nor unless it be proved that the testator when pronouncing the same bade the persons present, or some of them, to bear witness that such was his will ; nor unless such will were made in the time of the last sickness of the deceased and in the house of his or her habitation or dwelling, or where he or she had resided for ten days or more next before making the will, except where such person was surprised or taken sick away from home and died before returning thither. There was a further provision, refusing probate of such wills after six months from making them unless they were committed to writing within six days after the words were spoken. Then, after a provision that written wills of goods should not be revoked by nuncupation, a 64 THE LAW OF WILLS. general proviso followed that soldiers in actual service and mariners or seamen at sea might dispose of their movables, wages, and personal estate, as before the Act.^ Oral wills not nuncupative are everywhere invalid by statute. As nuncupations make but a small part of the general subject, it will be best to dispose of them here once for all. A simple general doctrine applies to the whole sub- ject, based upon the theory that nuncupations should be treated as exceptional, and allowed only be- kiudof will: cause of the special circumstances; they are consequences. ^^^ favored. ^ That doctrine is that such wills are only to be admitted to probate upon strictest proof that the requirements of the law have been met.^ These requirements, as they appear in the foregoing statement of the statute, relate (apart from the proviso in regard to soldiers and sailors) to the witnesses, to the last sickness of the testator, to his habitation, and to his absence from home. These special requirements may be commented upon in order. To establish a nuncupative will, it is generally held that it must be shown with great clearness that the tes- Roo-atio tes- tator specially called upon the witnesses to t'"™- bear witness to the act.^ And the required number of witnesses must be present at the same time, 1 29 Car. II. c. 3, §§ 19, 20, 22 ; Male's Case, 49 N. J. Eq. 266, 276. 2 Male's Case, 49 N. J. Eq. 266, 275. 8 Biddle v. Biddle, 36 Md. 630; Scaife v. Emmons, 84 Ga. 619; Male's Case, supra ; Carroll v. Bonham, 42 N. J. Eq. 625 ; Gould v. Safford, 39 Vt. 498. * Winn V. Bob, 3 Leigh, 140 ; Taylor's Appeal, 47 Penn. St. 31 ; Ben- nett V. Jackson, 2 Phillim. 190. But see Baker v. Dodson, 4 Humph. 342. 'NUNCUPATION.' 65 and at the time when the testator calls upon them as ■witnesses of his will.^ It is not enough for one witness to state that the testator at one time declared to him how he wished to dispose of his property, and then for another witness to state that the testator, at another time, made the same declaration to him, whatever may have been the condition of the testator."^ The words spoken before the witnesses further must have been spoken by the testator with intention to make a final disposition of the property. Direc- t^. , ,. ^ I 1 v/ lunal disposi- tions and instructions for drawing up a tion must be .,, -11 ii 1 • • f intended. written will, though given in presence of the requisite number of witnesses, and reduced to writ- ing as required for nuncupations, cannot be considered as making a nuncupative will.^ Intention to make a written will is inconsistent with nuncupation; but some courts have held that a paper not completed as a written will may be established as a nuncupation if completion was prevented by act of God after the terms of the will were fully expressed.* In regard to the requirement that the will must be made in the testator's last sickness, it has been laid down that it must be made when the testator is in such extremity that there is no 1 Yarnall's Will, 4 Rawle, 46; Tally r. Buttenvorth, 10 Yerg. 501 ; Male's Case, 49 N. J. Eq. 266. 2 id. 8 Male's Case, 49 N. J. Eq. 266 ; Woods r. Ridley, 27 Mi.ss. 119 ; Porter's Appeal, 10 Penn. St. 254; Yarnall's Will, 4 Rawle, 46; Dockum V. Robinson, 26 N. H. 372 ; Winn v. Bob, 3 Leigh, 140 ; Dor- sey I'. Sheppard, 12 Gill & J. 192. * Mason y. Dunman, 1 Munf. 456; Offut v. Offut, 313 Mon. 162; Boofter v. Rogers, 9 Gill, 44 ; Anrand v. Wilt, 9 Barr, 54. But see Tabler v. Tabler, 62 Md. 601 ; Docknm v. Robinson, supra ; In re Hebden, 20 N. J. Eq. 473 ; Porter's Appeal, 10 Barr, 254. 5 66 THE LAW OF WILLS. time or opportunity to make a written will.^ Accord- ingly nuncupative wills, made by consumptive persons nine days or even one day before death, have been held not valid. ^ If such wills are allowable at all in the case of persons having chronic diseases, making slow progress, it is declared that they are to be allowed only in the very last stage and extremity.^ The words ' last sickness ' are not, according to the better view, to be construed as referring to the duration of the illness; they are gen- erally considered to refer to a sudden and severe attack or phase of a malady (if it be a case of malady) just before death. ^ But the authorities are not agreed upon the point, some holding that if the nuncupation is made at any time during the testator's last sickness it is enough, though the testator might have caused the sup- posed will to be written out, had he chosen to do so, so far as his condition at the time was concerned.® Recovery by the testator of course revokes the will, for in that case it could not have been made in his last sickness. In regard to the testator's 'habitation' and absence therefrom: It is held under a provision excepting cases Testator's hab- 'where the deceased is taken sick from nation. home and dies,' as distinguished from the words ' surprised or taken sick ' of the English statute, that a nuncupation not made at the testator's ' habita- tion, ' nor where he had resided for ten days next before, 1 Prince v. Hazleton, 20 Johns. .502 ; Haus v. Palmer, 21 Penn. St. 296 ; Reese v. Hawthorn, 10 Gratt. 548. 2 In re Yarnall, 4 Rawle, 46 ; O'Neill v. Smith, 33 Md. 569. '' Prince v. Hazleton, supra. * Carroll v. Bonham, 42 N. J. Eq. 625. * Nolan V. Gardner, 7 Heisk. 215; Sampson v. Browning, 22 Ga. 293 ; Harrington v. Steers, 82 111. 50 ; Page v. Page, 2 Eob. (Va.) 424. See note to Carroll v. Bonham, 42 N. J. Eq. 625. ' NUNCUPATION.' 67 may be valid though he was not ' surprised ' by sickness there. It does not matter in such a case that the tes- tator was very ill when he left home.^ The provision concerning nuncupations by soldiers and sailors, also part of American legislation, has come before our courts occasionally,^ but does soldiers and not call for special remark beyond this, sailors, that such nuncupations stand upon ground of their own. The special requirements of ordinary nuncupations do not apply to those of soldiers or seamen; the wills of such persons, limited only by what they may dispose of by nuncupation, are not affected by the Statute of Frauds. But State legislation may have changed all that. What are called gifts mortis causa must be clearly distinguislied from nuncupations, which they somewhat resemble. These are gifts of personalty, Qjftg mortis orally made in apprehension of the donor's causa, death, but conditional upon the happening of death in the particular peril in which they are made ; they require for their validity delivery, as far as practicable, of the subject of gift; and they are revocable by the donor. The apprehension of death may be due not merely, as in nuncupations, to sickness, but also to old age, or to external danger such as shipwreck.^ Such transactions, unlike nuncupations, are not testamentary in law, and hence do not require probate ; and, unlike nuncupations, 1 Marks v. Bryant, 4 Hen. & M. 91. 2 See Hubbard v. Hubbard, 12 Barb. 148; s. c. 4 Seld. 196; "War- ren V. Harding, 2 R. I. 133. 8 See Nicholas v. Adams, 2 Wliart. 17 ; Michener v. Dale, 23 Penn. St. 59. 68 THE LAW OF WILLS. they may lake place after the making of a written will, disposing of the same chattels. The most obvious dis- tinction between such gifts in themselves and nuncupa- tions is seen in the fact that the former are invalid without delivery.^ 1 Kent, Comm. ii. 444-448. 'COMPETENT' TESTATOR. 69 CHAPTER VII. ' COMPETENT ' TESTATOR. Statute, varying more or less from State to State, has conferred upon married women testamentary capacity where they did not have it by the common Carried law; the tendency of legislation being to women. remove all restrictions founded merely upon marriage. That point, indeed, has been reached in many, if not in most, of the States. At common law the power of a married woman to make a will was very limited. All her personal chattels ' reduced to possession ' went to her husband absolutely; her husband had the use of her lands during the mar- riage, and he could dispose of her chattels real, or have them himself if he survived his wife. This, of course, cut down any disposing power the wife might otherwise have had ; and then, further, statute sweepingly declared that a married woman could not dispose of lands. ^ But the wife's disability was not absolute. Of things due to her which had not been reduced into possession, as by the collection of the same, she could, it seems, make a bequest; and she could probably dispose of her paraphernalia, or necessary wearing apparel, without her husband's consent, though this was doubted. She could, at any rate, make her husband executor of such articles ; 1 34 & 35 Hen. VIII. c. 5, § 14 (1,542-3). This, however, was only a specific statement of the common law, thought necessary because of the Wills Act, 32 Hen. VIII. c. 1. 70 THE LAW OF WILLS. and if she did not, she, and not her husband's executor, would have them upon her husband's death. Further, of goods which she had as executrix she could by will appoint an executor without her husband's consent; if she did not appoint, administration of such goods went, not to her husband, but to the next of kin of the testator deceased who had made her executrix. But the goods themselves she could not dispose of by will except by consent of her husband. It was a striking feature of the common law further that a married woman might make a will of her husband's goods, by his leave; and it was said that if she made a will of her husband's goods without his leave, and he suffered the will to be proved and delivered the goods accordingly, the will was made good.^ But a much more striking fact was that, notwithstand- ing the common-law and statutory disability of a mar- Conferiing ried wouiau, power could be conferred upon marrfed^"" a married woman, without the action of the woman. legislature, to make a will. It was con- sidered that it was not intended by the law to deny that power. Accordingly, any one conveying or disposing of property to a married woman could confer upon her the power he possessed of disposing of it by will ; this was but an incident of ownership, — it was only one of the terms upon which the property was transferred. But more than that, a woman about to marry could, by con- tract with her intended husband, reserve to herself the power which she possessed as a feme sole to make a will of her property. Nor was it necessary that a trust should be created and the property conveyed to a trustee for the purpose ; an agreement merely between the feme and her 1 Upon the whole su])ject see Shep. Touchstone, 402 (Abbott's Cases, p. 40), of which the text is a paraphrase. 'COMPETENT' TESTATOR. 71 intended husband was, in equity, enough.^ And whether the power arose in the one way or the other, or in the way of a marriage settlement of the estate in trust, the power of disposal might extend to lauds as well as to goods. But it was to such power alone that devisees had to look as the source of title to lands under the will. If, however, the power was well given or reserved, the will of a married woman acting upon it was as effectual in disposing of the property as the will of a person uuder no disability whatever. - Such a power may ^ be conferred before or after the marriage, though it could only be reserved (i. e., by the feme) before the marriage. Power conferred may emanate either from the husband or from a third person; a post- nuptial settlement upon the wife, with testamentary power, made by a stranger is valid, at least if the husband does not dissent.* A power of disposal need not appear in a conveyance or bequest of personalty to the separate use of a married woman or woman about to be married, nor in a contract between a feme sole and her intended husband fixing the personiilty to the woman's separate use. Unlike the power of disposing of realty, the power to dispose of personalty so given is an incident of the separate estate; a devisee must claim under a granted power of appoint- ment; a legatee may claim under the separate ownership of the testatrix. 1 Bradish v. Gibbs, 3 Johns. Ch. 523, 540 ; West v. "West, 10 Serg. & R. 447. The wife's power in such a case was equitable ; the legal estate would he in the heir, hut tlie devisee could obtain it from him. Jarman, Wills, 40. 2 Holman v. Perry, 4 Met. 492, 496 ; Willcock v. Noble, L. R. 7 H. L. 580, 590. 3 For convenience the present tense will now be used, as if common law still prevailed. * Picquet v. Swan, 4 Mason, 443. 72 THE LAW OF WILLS. In regard to the question of the age of capacity, infancy at common law was no objection to a will of Age of ca- personalty, but to dispose of realty a tes- pacit}-. tator must have been twenty-one years of age. But the subject is now a matter of statutory regu- lation in this country, as it is also in England ; and our statutes are not in harmony. In certain States a man or woman must be twenty-one to make a will either of per- sonalty or of realty. In other States the statute draws a distinction between wills of personalty and wills of realty, the testator being required to be twenty-one to dispose of lauds, while one of eighteen may dispose of goods, or some other difference of age is prescribed. In some States both personal and real estate may be dis- posed of by persons eighteen years of age. Mental capacity is of course required in all cases. But legal theory tends more and more against restric- Mental ca- tions based upon grounds of mental condi- dumb" and^^' ^^^^ ^^ persons not idiotic. Testamentary Wind. capacity requires no more than that the tes- tator, when executing his will, is able to comprehend the following facts : the property he is about to dispose of, the natural objects of his bounty, the meauing of the business in which he is engaged in making his will, the relation of each of these facts to the others, and the dis- positions made by his will.^ It was at one time laid down that a person deaf, dumb, and blind from birth had not capacity to make a will.'^ But we know more to-day about such persons than was known even fifty j^ears ago. Mental soundness is not necessarily wanting, it is now known, simply because ^ Westcott V. Sheppard, 51 N. J. Eq. 315; s. c. Hampton v. Westcott, 49 N. J. Eq. 522; Whitney v. Twombley, 136 Mass. 145. 2 Coke, Litt 42 b ; Jannan, Wills, 35. 'COMPETENT' TESTATOR. 73 one has always beeu deaf, dumb, and blind. Capacity to understand sufficiently for the purpose of making a will may well be present, and sound methods of educa- tion have shown it to be present in particular cases. The consequence is that inquiry should be allowed in every case of the execution of a will by such a person to show whether, as a matter of fact, he had the required capacity. At the most, in reason, there can be no more than a prima facie presumption of want of capacity in the testator. But such presumption there probably is. It follows, a fortiori, that blindness does not consti- tute incapacity to make a ivill ; all that the courts require for allowius: probate of a will of one blind ° ^ . , , , Blindness. IS satisfactory evidence that the testator knew and approved of the contents of the instrument,^ as, for instance, that the contents of the will were properly read over to him.^ Of course, too, inability to read is no evidence of testamentary incapacity; as in the case of blind testators, it is only necessary, in regard to the testator's inability to read, to make it plain to the court that he understood the contents of the will.^ Passing from cases of infirmity of the senses which inform the brain to the brain itself, that is, to the real seat of capacity for thinking, it is to be Capacity a rela- observed of the subject as a whole that tes- ''^'*^ thing. tamentary capacity has come to be looked upon as a 1 In re Axford, 1 Swab. & T. 540. 2 Fincham v. Edwards, 3 Cartels, 63; Weir v. Fitzgerald, 2 Bradf. 42; "Wampler v. Wampler, 9 Md. 540; Martin v. Mitchell, 28 Ga. 382. 3 Guthrie v. Price, 23 Ark. 395; Day v. Day, 2 Green, Ch. 551. Reading the will to the testator is perhaps the most satisfactory way of making the will known to him, but he may know it in other ways. See Worthington v. Klemm, 144 Mass. 167. 74 THE LAW OF WILLS. relative thing; it is to be considered with reference to the particular will in question, — the question being, not whether the testator had capacity for will-making, but whether he had capacity to make the will iu suit. He may have had capacity to make that will, and yet not have had capacity to make a more complex one; or he may not have had capacity to make the will in suit, and yet have had capacity to make a less complex or different one.^ Whether he understood the particular thing he was doing is the question. The requirement even then is not of the highest ; the law is satisfied with a moderate degree of capacity. The Extent of testator may be subject to serious iufirmi- capacity. ^jgg affecting, more or less, his mental vigor, and yet be equal to making his will.^ Weakness from age, disease, and inebriety ^ or other causes may indeed be extreme, and yet not create incapacity.* Testa- mentary capacity calls for soundness of mind, not sound- ness of bod}', except as the willing brain is part of the body. Wills have been upheld where the testator was of great age, very deaf and nearly blind, or had the palsy so that he could neither write nor feed himself.*' Indeed the law does not require so much as average 1 Campbell i'. Campbell, 130 111. 466 ; .Larman, Wills, 61 , note by the present writer, from which much of the text in this connection is taken. 2 Bannister v. Bannister, 45 N. J. Eq. 702 ; Westcott v. Sheppard, 51 N.J. Eq. 315, 318. 3 Koegel V. Egner, 54 N. J. Eq. 623 ; Fluck v. Rea, 51 N. J. Eq. 233 ; Peck v. Gary, 27 N. Y. 9, 23 ; Miller's Estate, 179 Penn. St. 645, 652. * Westcott V. Sheppard, supra ; Stoutenburgh v. Westbrook, 43 N. J. Eq. 597 ; Lewis's Estate, 140 Penn. St. 179. s Lowe V. Williamson, 1 Green, Ch. 82 ; In re Reed, 2 B. Mod. 79. See Taylor v. Pegram, 151 111. 106; Pooler v. Cristman, 145 111. 405, 410 ; Denuiug v. Butcher, 91 Iowa, 425; Maddox v. Maddox, 114 Mo. 35, 47. 'COMPETENT' TESTATOR. 75 capacity; there is no such term in the law of testamentary capacity as ' the average man.' For it may not require the capacity of the average man to understand and make the will in question. A man may have capacity to make his will without having capacity to transact ordinary business/ or (it has been said) to make a contract.^ Even weakness of mind is not necessarily fatal, ^ though of course it is likely to be. Nay, weakness or disease of mind in a testator may amount to insanity, and yet not constitute incapacity to make the will in question; in the language of the law of wills, the testator may still have a ' disposing '" mind.* There may accordingly be ' partial eclipse ' of mind and yet ability sufficient for the particular will.^ It is clear, too, that ' moral insanity ' does not constitute incapacity.^ Of course the fact that a will disposes of property unnaturally and unjustly does not show want of capacitj'; though with evidence which does indicate incompetency" it may be considered.'' 1 Whitney v. Twombley, 136 Mass. 145; Delaney v. Salina, 34 Kans. 532; Sinuet v. Bowman, 151 111. 146. 2 Maddox v. Maddox, 114 Mo. 35 ; Jackson v. Hardin, 83 Mo. 175; Kramer v. Weinert, 81 Ala. 414 ; Meeker v. Meeker, 74 Iowa, 352. But see Davis v. Calvert, 5 Gill & J. 269, 299, 300. 3 Whitney v. Twombley, 136 Mass. 145 ; Schneider v. Manning, 121 111. 376 ; Westcott v. Sheppard, 51 N. J. Eq. 315 ; Delafield v. Parish, 25 N. Y. 9, 27 ; Stewart v. Lispenard, 26 Wend. 313. * Schreiner v. Schreiner, 178 Penn. St. 57; Campbell v. Campbell, 130 111. 466; Durham v. Smith, 120 Ind. 463; Hovey v. Chase, 52 Maine, 304. 5 Thomas v. Carter, 170 Penn. St. 272 ; McCulloch v. Campbell, 49 Ark. 367 ; Middleditch v. Williams, 45 N. J. Eq. 726. See below as to the mind as a supposed unit. Inebriety long continued and resulting sometimes in temporary insanity does not require proof of Iqcid intervals to give validity to a will of the drunkard. Koegel v. Egner, 54 N. J. Eq. 623, 627 ; Peck v. Cary, 27 N. Y. 9, 23. » In re Jones, 25 N. Y. Sup. 109. ' In re Wilson, 117 Cal. 262; In re Langford, 108 Cal. 608; Mid- 76 THE LAW or WILLS. Weakness of memory may be taken in illustration. Now it is clear that the mental or psychic processes, by Weakness of which what are called the ' images of mem- niemon-. Q^.y > i ^^q created and called up, may be sound notwithstanding difficulty in calling up the images, or forgetf ulness ; the images may have been indistinct, they may have faded out entirely, or though intact they may, when called up, be displaced by other images of memory competing for first place. There is no mental disease at all in such cases. ^ Thus while a testator must have ability to recall, in general, the natural objects of his bouut}", if he has any, still it is unnecessary that he should be able to call up the names of all such persons, where there are several, or even that he should be able to call to mind all the persons, regardless of their names. ^ dleditch V. Williams, 45 N. J. Eq. 726; Smith v. Smith, 48 N. J. Eq. 566, 591 ; Nice wander v. Nicewander, 151 111. 156. 1 The expression ' images of memory ' is iu common use, and is here used as a convenient designation of what, considered as the effect pro- duced in the brain by sensation, is the trace or impression created by the sensation. ' A trace of the cortical excitation that has taken place is left in the cerebral cortex.' Ziehen, Physiological Psychology, 151 (Tr. London. 1892). The impression or trace is not an ' image,' iu the sense of a copy or counterfeit representation of the cause of the sensa- tion, but a change made in the memory-cell itself ; this never fully returns to its previous state. Id. 152. Nor is what is called up in memory from the trace an image in the sense mentioned. Id. 2 Under fatigue there may not be vigor enough to call up the latent ' image.' But the condition is of course only transitory, and rest will generally give the required vigor. On sucli matters see Ziehen, ut supra, 220. 3 Kramer v. Weinert, 81 Ala. 414 ; Clifton v. Clifton, 47 N. J. Eq. 327, 241. See Montague v. Allan, 78 Va. 592; Converse v. Converse, 21 Vt. 168. The contrary is true of course where the nerve-paths, or media, of memory have been broken up so as not to respond to any normal stimulus, such as prompting. Such condition is sometimes spoken of as 'total failure' of memory. Taylor y. Pegram, 151 111. 106, 119, 120. 'COMPETENT' TESTATOR. 77 The law of wills goes further than that; it admits of clear weakness of memory. A man's memory may be actually much impaired by age or disease; it may not be equal to recalling the names, the persons, or the families with whom he has been well acquainted; a man may repeat the same question at short intervals after being answered, or repeat himself in other like ways, and yet be able to make his will even where memory plays some important part in the will. -^ The lawrequires, however, a ' disposing ' memory, which appears to mean a memory which, for the purpose in question, is a reason- ably safe guide. It must, however, be observed that there may be failure of memory which will affect the will, though the failure may not be a matter of testamentary capacity at all, even in the particulars in which the will is affected. A man may have a perfectly sane and disposing memorj-, and yet forget a fact the forgetting of which may seriously disturb the dispositions made in the will; this, not be- cause there is a want of ' disposing ' memory, but simply because the testator forgot a material fact. Failure to mention a child of the testator affords an example. The will is not void in such a case, as it would be if the tes- tator lacked capacity, but in some States it is presumed that the child was forgotten, not intentionally cut off, and hence he is let into a share in the estate. The will must be disturbed accordingly. It was at one time considered in England that insanity in one particular was enough to show want partial of capacity in general, on the ground sup- '"samty. posed that the mind is a unit, and hence, that if there be ^ See Kiniie v. Kimie, 9 Conn. 105; Rambler v. Tryou, 7 Serg. & R. 95; Converse v. Converse, 21 Vt. 168. 78 THE LAW OF WILLS. uusoundness at all it must affect the whole mind.^ But that doctrine is considered to have been founded in mis- take, and has been abandoned.^ It is now everywhere held that insanity not in the line of the dispositions of the will is not fatal. ^ Thus subjective delusions gen- erally show insanity; but insane delusions may exist in the mind of a testator without touchins; or affecting hia capacity to make the will in question.^ To show want of capacity, the insane delusions must touch the will itself.* Subjective delusion is delusion arising wholly within the mind, or, at any rate, not arising from and agreeing Subjective with any sensation caused by an external delusion. ^y, nonxial Stimulus.^ It manifests itself in hallucinations, and presumptively shows mental disease.® 1 Waring v. Waring, 6 Moore, P. C. 341 ; Smith v. Tebbitt, L. R. 1 P. & D. .398. 2 Banks i\ Goodfellow, L. P. 5 Q. B. 549 ; Smee v. Smee, L. P. 5 P. & D. 84 ; and cases in next note. 3 Schreiner v. Schreiner, 178 Penn. St. 57; Thomas j'. Carter, 170 Penn. St. 272; Young v. Miller, 145 Lid. 652; Burkhart i-. Gladish, 123 Lid. .337; Kingsbury v. Whitaker, 23 La. An. 1055; In re Red- field, 116 Cal. 637; Brown v. Ward, 53 Md. 376; Rice v. Rice, 53 Mich. 432 ; Fraser v. Jennison, 42 Mich. 208 ; Middleditch ?;. Williams, 45 N. J. Eq. 726 ; Denson v. Beazley, 34 Texas, 191 ; Cotton v. Ulmer, 45 Ala. 378; Evans v. Arnold, 52 Ga. 169. * Schreiner f. Schreiner, Thomas v. Carter, Cotton r. Ulmer, and other cases just cited. ■ 5 See Smith v. Smith, 48 N. J. Eq. 566 ; Taylor v. Trich, 165 Penn. St. 586. 8 ' Li this case ' of hallucination ' not only the adequate external stimulus ' which produces sensation (e. g., a sound) ' but also tlie primary sensation are wanting. The person subject to hallucination sees persons and landscapes in the cloudless sky, and hears voices in the most pro- found stillness.' Ziehen, Physiological Psychology, 227. But hallucina- tions may arise without mental disease, especially in cases of inherited tendency. 'An exact investigation of this subject shows that . . . many individuals who have inherited tendencies towards mental diseases, al- 'COMPETENT' TESTATOR. 79 The fact that a niau reasons incorrectly, or that he holds beliefs which most men or even all other men repudiate, is a different thing. Such things are deemed consistent with mental soundness, to the extent of capacity for making the person's will, of whatever nature it may be. A man's reasonings or beliefs may be delusion, and yet not subjective delusion, for they may still be based upon facts or possible facts, i. e., they may arise from an external or normal stimulus. Such delusion, which may be called objective, can at most only be evidence when supported by other facts of insanity ; ^ standing alone it would probably be no evidence at all on the point. Be- lief in the phenomena of spiritualism, for instance, is no evidence of mental unsoundness ; ^ and the same may be said of all other peculiar beliefs which do not spring up within the brain as hallucinations.^ What afHrmatively constitutes testamentary capacity though not iiieutally deranged themselves, experience hallucinations. Of still greater importance to us is the fact that even men who are very gifted mentally, particularly artists who possess a very vivid imagination, have hallucinations.' Ziehen, p. 231. Perhaps this is the kinship of genius with madness. Illusion, produced as it is hy true external stimulus but not agree- ing with it, as where the sighing of the wind creates the sensation of speech, is said to he of frequent occurrence and to appear in connec- tion with all the senses. This, too, appears to be due in most cases to mental disorder. ' The memory-cells, as it were, add certain halluci- natory elements to the sensations. ... It should be carefully noted, however, tliat these are not merely cases of mistaken or deceived judg- ment. . . . The quality of sensation itself is directly changed.' Ziehen, p. 233. 1 Middleditch v. Williams, 45 N. J. Eq. 726 ; In re White, 121 N. Y. 406. '•^ Otto V. Doty, 61 Iowa, 23; Brown v. Ward, 53 Md. 376 ; In re Smith, 52 Wis. 543 ; In re Spencer, 96 Cal. 448 ; Whipple i-. Eddy, 161 111. 114. 3 Denson v. Beazley, 34 Texas, 191 ; Taylor v. Trich, 165 Penn. St. 586, 591 ; Thompson v. Quimby, 2 Bradf. 449. 80 THE LAW OF WILLS. may on the whole be put thus : Soundness of mind for the purpose of making a will has relation to Summary of . , i , m, ■ ■, testamentary the business to be done. Ihe mind must capacity. ^^ souud iu reference to whatever the par- ticular will involves; that is, the testator must be able to understand and carry in mind, in a general way, the nature and situation of his property and his relation to the persons around him, to those who would naturally have some claim upon his remembrance, to those persons in whom and those things in which he has been mostly interested. He must, in other words, be able to under- stand the nature of the act he is doing, and the relation in which he stands to the objects of his bounty and to those who ought to be in his mind upon such an occasion, free from any delusion, the effect of disease, which might lead him to dispose of his property otherwise than he would if he knew and understood correctly what he was doing. ^ And the one who propounds the will for pro- bate must show by clear evidence that the testator fully understood the nature and contents of the instrument.^ If the testator was insane, it must be shown that the will was made in a lucid interval, and clearly understood by the testator, unless it appears that the insanity was not along the line of the will.^ 1 Whitney v. Twombley, 136 Mass. 145 ; Hoopes's Estate, 174 Penn. St. 373, 379 ; Miller v. Oestrich, 157 Penn. St. 264; Westcott v. Shep- pard, 51 N. J. Eq. 315, 319. 2 Hildreth v. Marshall, 51 N. J. Eq. 241, 250. 3 Hoopes's Estate, 174 Penn. St. 373; Taylor v. Trich, 165 Penn. St. 586, 591. •VOLUNTARY DISPOSITION.' 81 CHAPTER VIII. ' VOLUNTARY DISPOSITION.' The will must, of course, be the will of the person who executes the instrumeut; which means that it must have been his free or voluutar}- act. Now one's Freedom of freedom of action may be taken away either action. by coercion or by what is called undue influence. Of coercion, otherwise called duress, it is not necessary particularly to speak, for it is obvious enough that if I sign an instrument under the orders of another it is not my own free act. It is my act in a sense, and my intended act (if the very muscles of my hand were not compelled by external force applied to them), for it must have been the result of motives within my own mind — the stronger motive has prevailed; but that does not make the act my free act as the law defines freedom of action. Legally speaking, the act is not my act — the will is not my will.^ Undue influence is a much more subtle thing, and calls for particular consideration. 2 The term must undue be kept distinct from that of testamentary inrinence. capacity, with which it is often closely connected. ^ 1 Tlie student of psychology may need this warning against apply- ing to the case the facts, that is, the mental processes, which that science shows to be in operation. 2 A note of the present writer in Jarnian on Wills, p. 66, forms the substance of what follows. 8 Armor's Estate, 154 Penn. St. 517. 6 82 THE LAW OF WILLS. The two are different thiugs; undue influence may have been exercised upon one whose mental capacit}^ was ample/ and, on the other hand, if there was want of capacity it makes no difference whether undue influence was exercised or not. Still the two may be so closely connected as to be inseparable."^ As in the case of testamentary capacity, however, the question of undue influence is a relative thing, to be con- Influence, a sidered in the concrete. The question to be relative thing, considered is whether the influence brought to bear in the particular case was undue with regard to this testator.^ What might be undue towards one man might not be undue towards another; the supposed tes- tator may not have had the strength of mind to resist where another would have had.* And that, too, without affecting his testamentary capacity. But while the question of capacity must not be con- fused with that of undue influence, the testator's state of mind and body, at the time of making Mental condi- , .,, - -, ~ • j • i tion of testator the Will, may be and often is a material under influence, g^^^jgct f^j. consideration in determining whether undue influence has been exercised upon him.^ What, for instance, would be undue influence upon a person in feeble health might not be undue if the same person were perfectly well. And where capacity is feeble, influence finds its opportunity. 1 See Westcott v. Sheppard, 51 N. J. Eq. 315, 320. 2 Armor'.s Estate, supra. 8 Shailer v. Bumstead, 99 Mass. 112, 121. * Griffith V. Diffenderffer, 50 Md. 466, 480; Moouey v. Olsen, 22 Kans. 69. ^ Shailer v. Bumstead, supra; Westcott v. Sheppard, 51 N. J. Eq. 315, 320. 'VOLUNTARY DISPOSITION.' 83 The test to be applied accordingly is this: Was the influence such as to take away, that is, did it take away the testator's free action in this instance?^ Free action, the Whatever influence constrains a person to ^^^*^' do what is against his will, and what he would not do if left to himself, is undue influence, however the control is exercised.^ It is sometimes said that influence, to be undue, so as to defeat a will, must amount to force or coercion.^ But this is rather too strong a statement if ' force ' and ' coercion ' are to be taken in the ordinary sense. The will may be overcome by gentle and insid- ious means as well as by violence, and that is the usual course in cases of undue influence. The testator need not even have been under the control of another to have been unduly influenced by him.^ 1 Conley v. Nailor, 118 U. S. 127 ; Ormsby v. Webb, 134 U. S. 47 ; Gurley v. Park, 135 Ind. 440 ; Lyons v. Campbell, 88 Ala. 462 ; Peery V. Peery, 94 Teun. 328 ; Westcott v. Sheppard, 51 N. J. Eq. 315, 320; Bennett v. Bennett, 50 N. J. Eq. 439; Stewart v. Jordan, id. 733; Carroll v. House, 48 N. J. Eq. 269; In re Kaufman, 117 Cal. 288; Scbufield V. Walker, 58 Mich. 96 ; In re Nelson, 39 Minn. 204 ; Myers V. Hanger, 98 Mo. 433 ; In re Snelling, 136 N. Y. 515 ; In re Martin, 98 N. Y. 193; Lewis's Estate, 140 Penn. St. 179; Wise ?;. Foote, 81 Ky. 10 ; Chappell v. Trent, 90 Va. 849. 2 Carroll v. House, 4S N. J. Eq. 269, 273. 3 Seguine v. Seguine, 3 Keyes, 663, 669 ; Gardiner v. Gardiner. 34 N.Y. 155, 162 ; Coit v. Patchen, 77 N. Y. 394 ; Morris v. Stokes, 21 Ga. 552. The terra 'moral coercion' is sometimes used; the influence, it is said, must amount to physical or moral coercion. Westcott v. Sheppard, .51 N. J. Eq. 315, 320; Hampton v. Westcott, 49 N. J. Eq. 522. This is -n-ell enough when it is explained that ' moral ' coercion may be much less than physical coercion. In the case first cited it M-as well said that importunity may amount to coercion. See also Elkinton v. Brick, 44 N. J. Eq. 154, 166. A person cannot be unduly influenced to do what it is his legal duty to do. Bennett v. Bennett, 50 N. J. Eq. 439. * See Boyse v. Rossborongh, 6 H. L. Cas. 2, 51, where it is said that control imports something of the nature of duress or fear, while definiteness of that kind cannot be predicated of undue influence. 84 THE LAW OF WILLS. The case of undue influence comes to this, that the tes- tator is practically the instrument by which a stronger Extent of person has effected his desire. The sup- influence. posed will is uot the will of the testator in the sense which the law requires. It is not to be sup- posed, however, that yielding to another is yielding to undue influence ; influence is not undue until it dominates the action of the person affected by it. Thus success- ful persuasion does not establish undue influence; one may be persuaded without being dominated by another; and yet importunity may amount to undue influence.^ The distinctions in the case of persuasion by a wife have, in substance, been put thus: If a wife create in Persuasion by the mind of her husband unfounded preju- ^^■1^^- dice against the natural objects of his bounty, and contrive to keep him away from them, so that the false impressions thus created may not be re- moved, and are not removed at the time of making the will, which is, in fact, made under such circumstances, undue influence may be considered to have been exer- cised.^ But this will not be true of successful persua- sion, even while the testator is at the point of death, to induce him to make a better provision for the wife than he is disposed to make, if it appear that the husband was of sound mind and was not imposed upon by false representations, and that the provision made in the will w^as not greatly disproportionate to that of near kindred, or unreasonable.^ Indeed, the fact that the testator may under such cir- cumstances have given all his property to his wife in 1 Westcott V. Sheppard, 51 N. J. Eq. 315, 320; Hindman v. Van Dyke, 153 Penn. St. 243. 2 Boyse v. Rossborougli, 6 11. L. Cas. 2. 8 Lide V. Lide, 2 Brev. 403, 'VOLUNTARY DISPOSITION.' 85 preference to uear kindred does not show undue influ- ence on her part, for the testator might well think that it was his duty to do so.^ Add to this that the wife usually exercised over her husband, in the general affairs of the family, a powerful influence, and yet no case of undue influence is made out. There should be evidence that she exerted her influence in a special degree to procure a will specially desired by her, to the prejudice and disappointment of others naturally expect- ing his favor. ^ Such influence as that suggested in the last paragraph should perhaps be considered as lawful only in the case of a wife or a child. Influence of the kind influence of would probably be undue if exercised by mistress. others ; certainly it would be if exercised by a mistress of the testator, in prejudice of his family.^ Still a man may leave all his property which he has power to dispose of to his mistress to the prejudice of his wife, if he does it freely; though the fact that the person taking the benefit is his mistress should lead the court to scrutinize the case.* The existence, however, of an unlawful rela- tion between the testator and a beneficiary is not enough alone to justify a jury in finding undue influence.* 1 See Small v. Small, 4 Greenl. 223. 2 Id. '^ Kessinger i'. Kessinger, 37 Ind. 341 ; Dentou v. Fraukliu, 9 B. Mon. 28. See In re Ruffiuo, 116 Cal. 304. * Arnault v. Arnault, 52 N. J. Eq. 801. See In re Ruffino, 116 Cal. 304; McClure v. McClure, 86 Tenn. 173 ; Munroe ;;. Barclaj, 17 Ohio, 302, 316 ; Dean v. Negley, 41 Penn. St. 312; Maia v. Rider, 84 Penn. St. 22.5 ; In re ]Mendorf, HON. Y. 450. There is, however, no presumption that unlawful influence was exercised. Arnault v. Arnault, supra. See infra, p. 90. & Johnson's Estate, 159 Penn. St. 630; Wainwright's Appeal, 89 Penn. St. 225, 86 THE LAW OF WILLS. Undue influence may be exercised by one who is not a beneficiary under the will; a person might unduly iuflu- Influence by Q^^ce a testator to make a bequest to a child, stranger. relative, or friend of such person, or to some object of charity. Akin to cases of undue influence in some degree, but falling far below them in effect upon the will, are cases ^., . , iu which the will has been executed in iiduciary and contideutial favor, more or less, of a person standing in relations: sus- „ , . ^ i ■ i i • picion of influ- a fiduciary or confidential relation towards ^"^®' the testator. A fiduciary relation arises, it seems, wherever a trust, continuous or temporary, is specially reposed iu the skill or integrity of another, or wherever the property or pecuniary interest in whole or in part, or the bodily custody, of one person is placed in charge of another.^ For the protection of the one party the law requires but slight evidence, where it requires any, to raise a suspicion, or even a presump- tion,^ that transactions by which he confers upon the other a benefit, whether by contract, sale, gift, or will, have been unduly brought about by the person bene- fited. This suspicion, or presumption, if it appear to be raised, must be removed by the party resting under it before the courts will confirm him in his claim to the benefit.^ Among the relations which are called fiduciary are those of attorney and client, principal and agent, trustee and cestui que trust, guardian and ward, and executors 1 See In re Cahill, 74 Cal. 52 ; Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433. 2 Bigelow, Fraud, i. 262. 3 See Whitelaw v. Sims, 90 Va. 588, 590 ; Hartman v. Strickler, 82 Va. 238; Donnelly v. Broughton, 1891, A. C. 435,442. * Id.; Mott V. Mott, 49 N. J. Eq. 192 (deed). 'VOLUNTAEY DISPOSITION.' 87 or administrators and claimants of the decedent's estate. The doctrine applies to all these relations. The case of a testamentary provision by a client in favor of his attorney may be taken in illustration. It seems that such provisions formerly were Attorney and not looked upon with the same degree of client, disfavor as gifts inter vivos by the client to his attorney. A testator made a provision in his will in favor of his solicitor for £1000, by which he wished to confirm a gift he had already made to him. There was evidence that before signing the will, which had been drawn by the client, a third person who was an old friend of the tes- tator had attended and read over the will and had then asked if the disposition of property was such as the testator wished ; to which the testator replied in the affirmative, adding that he would have done more for his solicitor if the solicitor would have permitted. The evi- dence was held sufficient to remove all doubt that the provision had been properly obtained, and it was accord- ingly upheld.^ It is clear, then, that a testamentary gift to an attor- ney is not void even though he wrote the will ; at most it is but voidable.^ But the burden lies in ^ ^ Draftsman of every case of the kind upon the beneficiary will taking to satisfy the court that the instrument is ^' the last will of a free and competent testator. Indeed, if a person but writes or prepares a will, under which he takes a benefit, that is deemed to be a fact to excite the suspicion of the court, and to cause the court to be 1 Hindson v. Weatherill, 5 DeG. M. & G. 301. 2 Post V. Mason, 91 N. Y. 539; Riddell v. Johnson, 26 Gratt. 152 ; Cramer v. Crumbaugh, 3 Md. 491 ; Watterson v. Watterson, 1 Head, 1. 88 THE LAW OF WILLS. zealous in examining the evidence in support of the instrument; in favor of which it ought not to pronounce unless the suspicion is removed and the court satisfied that the instrument does express the true will of the testator.^ But the most that has been required in such cases is satisfactory evidence that the testator was of sound mind and clearly understood the contents of Evidence re- , .,, , , . -, quired to sat- the Will, and was at the time under no re- isfy the court, g^j-^int. No authority has gone so far as to declare a will invalid where it was shown that the tes- tator was of sound mind and clearly understood what he was doing, though the will was drawn by the person who under it took the whole estate of the testator.^ The bur- den, however, may be increased by circumstances, such as unbounded confidence in the draftsman of the will, extreme weakness in the testator, secrecy, and the like; the facts being such as to inake a conclusive case against the validity of the gift.^ It is not, however, conclusive against the validity of the gift to the draftsman of a will that the testator was „r I t ^t the time of executing the instrument a Weakness of ° testator in such person of weak mind. In an English case it appeared that the testator was a person of small capacity, of retiring disposition, indolent habits, addicted to drinking, singular in his appearance, frivo- lous, and even childish at times in his amusements and occupations. But there was no evidence to show that he was insane, or that he lacked capacity to make a will. Indeed, it was not disputed on the one side that he was ^ Post V. Martin, and Riddell v. Johnson, supra. 2 See the cases last cited ; also Donnelly v. Broughton, 1891, A. C. 43.5, 442. * Donnelly v. Broughton, ut supra. 'VOLUNTARY DISPOSITION.' 89 of testamentary capacity, or on the other that he was of weak mind. The court declared that the only conse- quence was, to add to the suspicion against the drafts- man, who was also solicitor to the testator, and was to take no less than a fourth part of the estate, and to call upon the court to watch the proof of the will with increased jealousy.^ The foregoing remarks represent the doctrine which formerly obtained very generally, and still obtains in England and in some of our States, a pre- Rgi^^tion of coa- sumption, or, at least, a suspicion, of wrong- lideucenot , . ... , ,, , ^. J! J. ^ enough bv doing arising because of the relation ot trust many ' or confidence.^ But many of our authorities authorities. appear to stop short of such doctrine as too strong. It seems now to be widely held that the existence of a fidu- ciary or confidential relation with the devisee or legatee, though he be a stranger in blood and the subject of a large gift, is not alone enough to compel him to make good the gift;^ unless he drew the will — which fact appears to be enough. No case affecting the will is made by any of the authorities where the confidential relation Confidence, involves no superior rights or knowledge, oritvTfaraUy'" both parties to the relation standing upon relation. the same footing, as in the case of a bequest to one's 1 Barry v. Butlin, 1 Curteis, 637. See also Harvey v. Anderson, 12 Ga. 69. - Paske V. Ollat, 2 Phill. 323 ; Donnelly v. Broughton, 1891, A. C. 435,442 ; Dale's Appeal, .57 Conn. 127; Richmond's Appeal, 59 Conn. 226; Gay v. Gillilan, 92 Mo. 250; Bridwell v. Swank, 84 Mo. 455. 3 Bancroft v. Otis, 91 Ala. 279 (overruling Moore v. Speer, 80 Ala. 129, and following Lyons v. Campbell, 88 Ala. 462) ; In re Smith, 95 N. Y. 576 ; Wheeler v. Whipple, 44 N. J. Eq. 141 ; Waddiugton v. Buzby, 43 N. J. Eq. 1.54; s. c. 45 N. J. Eq. 173. See also Marx v. McGlynn, 88 N. Y. 357 ; Lewis's Estate, 140 Penu. St. 179. 90 TPIE LAW OF WILLS. partner iu trade/ at least where the testator is an active partner. The relation of husband and wife, or perhaps of members of the same family, would also afford illus- tration. Clearly, the fact that an adult son, to whom his mother has left all or the greater part of her property, was living with his mother, creates no such relation of confidence as that under consideration.- But it is held that if, of two sous, one is iu a position to exercise improper influence over his mother, in a case in which the mother, being of feeble mind, leaves nearly all her property to him, without apparent reason for the discrim- ination, he must make good his claim to the gift.^ So it is held in the case of a woman to whom or to whose child the testator has left all his property, and with whom the testator has lived as her husband, though he was not, that no presumption or evidence of undue influence arises from the facts.'* But the difference between such a case and that of living or consorting with a mere mistress may be very slight; and the law certainly looks with suspicion upon testamentary gifts to a mistress.^ According to the authorities which seem to have de- What facts parted from the earlier rule, there should, dentiaWe'ktion ^s we have Said, be something more than called for : ^ gift to the partv in the superior position of draftsman of » ^ , , , , , ^ . will. confidence. There should be some such tact as feebleness of mind in the testator, or activity on - 1 In re Brooks, 54 Cal. 47 L 2 Dale's Appeal, 57 Conn. 127 ; In re Martin, 98 N. Y. 193. 8 Dale V. Dale, 38 N. J. Eq. 274. Compare Foster's Appeal, 142 Penn. St. 62. 4 Forschet v. Forscliet, 82 Ky. 93; Main v. Ryder, 84 Penn. St. 217 ; Waiuvvright's Appeal, 89 Penn. St. 222; Dickie v. Carter, 42 111. 376. 6 Ante, p. 85 ; Arnault v. Arnault, 52 N. J. Eq. 801, 805 ; Kessinger V. Kessinger, 37 lud. 341 ; Denton v. Franklin, 9 B. Hon. 28 ; Layman 'VOLUNTARY DISPOSITION.' 91 the part of the legatee or devisee in and about the prep- aration or execution of the will, as by initiating proceed- ings for it, the employment of a draftsman, selecting the witnesses, excluding persons from the presence of the testator at or about the time of executing the will, or con- cealing the will itself after it has been made,^ or the fact that the legatee or devisee himself drew the will.^ It seems that the fact that the legatee or devisee, being a stranger, drew the will, would require him to satisfy the court, though he had not been in a confidential relation towards the testator.^ But whatever the added facts, if on the whole evidence neither undue influence nor fraud appears to have been exercised, the gift will stand.* The exist- „ , . . Presumption or ence of a fiduciary or confidential relation, suspicion re- with superiority of rights, position, or knowledge, and the further fact that the legatee or devisee drew the will, works no disqualification.^ A draftsman of the will may not stand in any relation of confidence towards the testator further than is involved in the matter of drawing the will ; though it Draftsman of often happens that he does stand in such ^'"• relation independently of his situation as draftsman. But the only effect at most is to require greater scrutiny V. Convey, 60 Md. 286; Dean v. Negley, 41 Penn. St. 318; McClure v. McClure, 86 Tenn. 173; In re Sliuger, 72 Wis. 22. 1 Bancroft v. Otis, 91 Ala. 279 ; Wheeler v. Whipple, 44 N. J. Eq. 141. 2 Lyons v. Campbell, 88 Ala. 462 ; Waddington t'. Buzby, 43 N. J. Eq. 154 ; s. c. 45 N. J. Eq. 173 ; Rusling i'. Rusling, 36 N. J. Eq. 603, 607. 8 Lyons v. Campbell, snpra. * Lewis's Estate, 140 Penn. St. 179. fi Bancroft v. Otis, and other cases, supra. 92 THE LAW OF WILLS. into the circumstances of the gift. "When no further relation of confidence exists than is implied in employ- ing a draftsman, the suspicion of undue influence, if the draftsman is a legatee or devisee, is probably weaker than in other fiduciary relations; but the authorities generally appear to hold that the suspicion arises.^ It is not necessary, however, in order to require a devisee or legatee to make good the will, by showing „ , . „ that it was executed without undue influ- Undue influ- ence in other cncc in his favor, that the devisee or legatee ^^^^^' should stand in a relation of legal confidence towards the testator, or that he should be the draftsman of the will. There may be other sufficient indication of suspicion, as that he generally dominated the testator, who was weak-minded, and that he took charge of the making the will ; especially where the whole of the tes- tator's estate was given to him in exclusion of others equally entitled to the testator's favor.^ Any one may exercise undue influence. THE 'disposition.' Emphasis must be put upon the word ' disposition ' as well as upon the word ' voluntary,' in the general defini- tion of a will. The ' disposition ' must be such that the courts can enforce it. That suggestion, however, would lead to the consideration of questions (of certainty and lawfulness) which make too large a part of the law of wills to be treated under a mere definition of the word 'will.' Those subjects will accordingly be deferred for consideration to a later part of the book. ^ Jarman, 70. 2 Boisaubin v. Boisaubin, 51 N. J. Eq. 252. See Waddington v. Buzby, 16 Stewt. Eq. 154 ; Stewart i'. Jordan, 50 N. J. Eq. 733. •PEOPEETY.' 93 CHAPTER IX. * PROPERTY.' The power of testameutary disposition extends to all interests in real and personal estate, vested or contin- gent/ which at one's death would, if not whatmavbe disposed of by will, devolve upon one's 'I'sposed of. heirs or personal representatives; and this as well where the testator is only the legal or only the beneficial owner as where he unites in himself both these characters.'^ And testacy is preferred as matter of law to intestacy, whether total or partial.^ This is an extension of the old law of wills in certain particulars. By that law rights of entry and rights of action, though descendible, could not be 1 n 1 ^l^ A -K^ 1 , Rights of entry. disposed of by will.* iSow, by statute, they may,^ the test being whether the interest is descendible. Such rights arise in various ways, as by breach of con- dition either in a freehold conveyance of laud or in a 1 Cumraings v. Stearns, 161 Mass. 506 (vested interest in an equi- table contingent remainder). 2 Jarman, 48. 3 In re Kimberly, 150 N. Y. 90; Scluilt v. Moll, 132 N. Y. 122 ; In re Miner, 146 N. Y. 121, 131 ; Lamb v. Lamb, 131 N. Y. 227 ; Boies's Estate, 177 Penn. St. 190; Le Breton v. Cook, 107 Cal. 410; Korf o. Gericho, 145 Ind. 134, 136. * Goodright v. Forrester, 8 East, 564 ; 1 Taunt. 578 (right of entry) ; Baker v. Hacking, Cro. Car. 387, 405 (right of action). ^ Waring v. Jackson, 1 Peters, 571 ; Varick v. Jackson, 2 Wend. 166 ; Whittemore r. Beau, 6 N. H. 47 ; Smith v. Bryan, 11 Ired 418; Humes v. McFarlane, 4 Serg. & R. 435 ; Watts v. Cole, 2 Leigh, CG4. 94 THE LAW OF WILLS. leasehold interest, and upon a disseisin. These are plain cases for the operation of a will. Thus a landlord hav- ing a right to enter upon his tenant for term of years, and put an end to the lease for condition broken, may devise the right to another. But certain cases of breach of condition must be dis- tinguished. When upon the conveyance of an estate in land a ' condition ' restraining the mode of use of the land is annexed, such condition being either for the benefit of other land owners or of the grantor himself, the ' condition ' is treated as creating a trust for the beneficiary. It is not a true condition, giving a right of entry upon a breach, but gives to the beneficiary the right in equity to compel observance of the provision. The same thing would come about by a devise of land upon such terms. The consequence is that neither the grantor nor his heir in the first case, nor the heir of the devisor in the second, has any right of entry to devise.^ Possession, too, even though wrongful, not, however, being feloniously obtained, is a thing which the pos- sessor can dispose of by will against all Possession. , , • persons except those having a superior claim. The devisee or legatee can defend or recover ^s"- 1 Attoruey-Gen. v. Wax Chandlers' Co., L. R. 6 H. L. 1 ; Wright v. Wilkin, 2 Best & S. 232, 252 ; Stanley v. Colt, 5 Wall. 119 ; Ayling v. Kramer, 133 Mass. 12; Sohier v. Trinity Church, 109 Mass. 1,19; Cuuuingliam v. Parker, 146 N. Y. 29, 33. In Ayling v. Kramer, supra, a conveyance of land to M. A. Carter, was ' subject to the following conditions,' to mention one of tliem : 'No dwelling-house or other building except necessary out-build- ings shall be erected or placed on the rear of the said lot.' Tlie court were of opinion ' that the so-called conditions in the deed to Carter were not intended or understood by the parties to be technical conditions a breach of which would work a forfeiture of the estate. They . . . are to be construed as restrictions.' On the history of the subject see Gray, Perpetuities, § 282, note. 'PROPERTY.' 95 possession against all competing claimants not founding their claim upon or under title. ^ Joint tenancy is subject, so far as it still retains its common-law characteristic, to survivorship; that is, upon the death of one of the joint-tenants Joint tenancy : the other or others become entitled to the tenancy in interest of the decedent. And the right so <=°°^"^°'i- acquired is superior to any claim as devisee or legatee of the deceased co-tenant. It follows that, in the event of the death of one of the tenants in the lifetime of another, any attempt of the former to dispose of his interest by will must be fruitless. If, however, the tes- tator survive his associate (or all of his associates if there be several), the disposition will be good regard- less cf the fact that it was made in the lifetime of the latter; for under modern legislation it is enough that the testator had an interest capable at his death of being disposed of by will.^ No such difBculty arises in cases of tenancy in com- mon; in such cases each of the co-tenants has a sole estate, and hence has power to dispose of the same by wills notwithstanding the want of partition. The tes- tator disposes of his undivided estate, his devisee or legatee being entitled to take his place in the co- tenancy. An interest in real or personal property to arise in the future, called an executory interest, may be devised or bequeathed,^ if the contingency upon which Executorv it depends is such that the interest does not interests. come to an end with the life of the testator; for it will ^ Jarmau, 50. 2 Jarraan, 48. See, further, chapter 23, at end, ' Taking per capita or per stirpes.' * CummiDgs v, Stearns, 161 Mass. 506. 96 THE LAW or WILLS. then be descendible, which, as we have seen, is enough. A bare possibility, such as an heir apparent as such has, is a different thing; an heir has no legal or equitable right in his ancestor's estate during the latter's lifetime, and hence has nothing in it to devise. It matters not that the contingency or condition is such that it cannot be ascertained at the time of the tes- tator's death that he will take the coutin- Perpetuity. , • , t^ , • gent interest. But there is one important limitation to the validity of contingent dispositions of property ; they must not violate what is called the rule against perpetuity. This term ' perpetuity ' has two mean- ings, the word sometimes being used in the one sense, sometimes in the other; and sometimes there is more or less confusion in its use between the two meanings. The first meaning is perhaps the more natural one; a gift is in perpetuity when the interest given is to be inalienable by the legatee or devisee. The second mean- ing is a technical and legal one; a gift is in perpetuity, and hence invalid, when the interest given is so given that it might possibly not vest^ until after the expiration of a life or lives in being and twenty-one years and a fraction — the period of gestation. More precisely, ac- cording to this technical meaning of the term, ' no interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty- one years,' and a fraction, ' after some life in being at the creation of the interest.' "^ This rule came into 1 In re Wood, 1894, 3 Cli. 381, 385 (gift to a child living when cer- tain gravel pits were worked out, held too remote) ; In re Dawson, 39 Ch. D. 155 ; In re Rtrathenden, 1894, 3 Ch. 265. ^ Gray, Perpetuities, § 201. The rule appears in a modified form as statute law in some of our States, as that the future estate must not be postponed beyond two lives in being at the time of creating it. The state of things existing at the death of the testator, and not at 'PROPEETY.' 97 existence as judge-made law in the latter part of the seventeenth century, in consequence of the doctrine which now (contrary to earlier law) had come to obtain, that future contingent interests in property might be created. The creation of future freehold interests had not been possible before the Statute of Uses, because of the requirement of livery of seisin in such cases; but that statute having dispensed with the necessity of livery, estates to begin in futuro accordingly became possible. When later it came to be established that such estates might be made dependent upon a condition precedent, the courts deemed it necessary to restrain the creation of contingent future estates within reasonable limits of time, and the rule against perpetuities above stated was slowly, step by step, evolved.^ The rule belongs, how- ever, to the law of property, being applicable as well to conveyances inter vivos as to wills, and therefore will not be further considered here.^ By the common law, wills of realty operated, as we have seen, as conveyances, taking effect, therefore, only upon property which the testator held at the After-acquired time of making the Vv ill ; and this, whatever interests. the language of the testator. Equity followed the law in this respect, and equitable interests accordingly fell the date of the will is to be regarded in determining whether a gift contravenes the rule or not. In re Wood, 1894, 3 Ch. .381, 385. 1 The whole process is shown in detail by Mr. Gray in his able work on Perpetuities. - The following are recent cases on the subject : Goodier i'. Ed- munds, 1893, 3 Ch. 455 (trust for sale) ; In re Daveron, id. 421 (trust for sale); In re Abbott, 1893, 1 Ch. 54 (limitations in default of ap- pointment under power void for remoteness) ; In re Rence, 1891, 3 Ch. 242 (as to splitting up gifts over, so as to save them) ; Hale v. Hobson, 167 IMass. 397 (residuary clause, contingent) ; Hobson v. Hale, 95 N. Y. 588 (same will as the last); Hale v. Hale, 125 111. 399 and 146 111. 277 ; Allen v. Allen, 149 N. Y. 280 ; Bird v. Pickford, 141 N. Y. 7 98 THE LAW OF WILLS. under the operation of the same rule. Thus, at common law, if a testator devised all the land of which he should die seised, even declaring specifically that it was his intention that all the real estate he should thereafter pur- chase should pass, and after the execution of his will acquired new lauds, these would not pass by the will, but would descend as if no will had been made.^ But statute has changed the rule, and after-acquired interests in realty may now be disposed of by will. The question is only one of intention.'- After-acquired personalty could always be disposed of by will; even chattels real, that is, chattel interests in laud, such as leasehold inter- ests for years, could always be devised.^ 18, 21 ; Tildeu v. Green, 130 N. Y. 29 ; Siddall's Estate, 180 Penn. St. 127; Weiubreuuer's Estate, 173 Pemi. St. 440 ; Walker v. Lewis, 90 Va. 578; Beurhaus v. Cole, 94 Wis. 617 ; Hughes v. Hughes, 91 Wis. 138; Trufant v. Nunueley, 106 Mich. 554; Hamlin v. Mansfield, 88 Maine, 131 ; St. John v. Daun, 66 Conn. 401 ; Woodruff v. Marsh, 63 Conn. 125; Jocelyn v. Nott, 44 Conn. 55; Fowler v. Duhme, 143 Ind. 248; Lawrence v. Smith, 163 111. 149. At common law the words ' without issue,' or ' leaving no issue,' or * without leaving issue,' or the like, in a limitation to a gift of land to A, were construed to mean an indefinite failure of issue ; hence any gift over to B upon such failure of issue would violate the perpetuity law and be void. See Patterson v. Madden, 54 N. J. Eq. 714, 716. But if the gift was of personalty, the words were construed to mean a failure of issue at the death of the fir.st legatee, and so the gift niight be good. Id. The words have been the suliject of legislation in many States. On the various distinctions of the common law see the case just cited. 1 Girard v. Philadelphia, 4 Rawle, 323. See Brigham ?'. Winchester, 1 Met. 390; George v. Green, 13 N. H. 521 ; Carroll v. Carroll, 16 How. 275 ; Dodge v. Gallatin, 1.30 N. Y. 117, 124. 2 Statute in some of the States gives effect to devises upon after- acquired real estate, unless a contrary intention appears on the face of the will. See, e. g., Flummerfelt v. Flummerfelt, 51 N. J. Eq. 432. In other States real property after-acquired would not pass unless an intent to pass it appear on the face of tlie will. See chapter xix. 8 Jarman, 58, 59. 'PROPERTY.' 99 It is hardly necessary to say that the word ' property ' in the defiuitiou of will includes equitable interests; these as well as legal interests devolve at Equitable death, in case of intestac}^, upon the per- i"te>ests. sonal or the real representative according to thei]- nature as personalty or realty, and that is the test of the law of disposition by will, as we have seen. Contracts for the purchase of land may be taken for illustration. Thus where a testator has a contract, enforceable by him, for the purchase of laud, but not yet carried into effect by payment of the purchase-price, he has an equitable and descendible interest in the land, and accordingly he can dispose of it by will.^ And he can so dispose of the interest subject to payment by the devisee of the pur- chase-price or freed from such charge, payment to be made, for instance, by the executor out of the personal estate. If, however, the contract, though enfoi'ceable by the testator, is not enforceable against him, as, for instance, where the title is defective, a different case arises. Now the purchaser may elect to take the title, or he may not. If he should elect to take, he can dispose of the interest by will. But if he should not so elect, and should devise all his land to A, there would be no interest to pay to the devisee. The devisee could not say that he would take the interest, that is, the land, with its defects, the price to be paid for by the executor, or have the purchase- price laid out in buying for him another estate. In other words, the situation of the devisee in such a case is to be treated as the same as that of the testator himself at the time of his death, unless a different inten- tion appears on the face of the will. The devisor having never manifested any purpose of changing the position he was in, whereby he had the right either to insist upon 1 Dodge V. Gallatin, 130 N. Y. 117, 124. 100 THE LAW or WILLS. a good title or to refuse the estate, that is, having never indicated that he would have paid for the estate notwith- standing the defect of title, the devisee cannot insist upon taking it and call for payment out of the personal estate.^ However, all this is what will pass in a disposition of land ; it does not mean that the purchaser could not be- queath his own right to treat the contract as binding for whatever it might be worth. 1 Broome v. Monck, 10 Ves. 597, Lord Eldon. The evidence of a purpose by the testator to take the estate with its defective title should probably be an acceptance of the title. Jarman, 53. 'COMPETENT' BENEFICIARY. 101 CHAPTER X. * COMPETENT ' BENEFICIARY. It is not every object of one's interest that can be made one's devisee or legatee; for reasons differing more or less in each case the law limits the n Corporations: testator's beneficiaries or the amount which charitable , . .1 trusts. he can give them. By English legislation from the thirteenth century until within comparatively recent times corporations were made incompetent to hold lands, the statutes to that effect being known as ]\[ortmain Acts. The sup- plementary or interpreting Statute of Wills, of the time of Henry the Eighth, expressly excepted from the right of testation devises to ' bodies politic and corporate.' ^ Later came a famous statute of the reign of Elizabeth, declaring devises valid when made to a corporation for charitable uses.^ The last-named statute, however, was not an enabling act, giving corporations rights not before recognized; devises in trust for corporations were always deemed good in equity, before as well as after the Statute of Elizabeth. The Mortmain Acts had merely made corpo- rations incapable of taking gifts in charity directly as devisees; whereas, if a trust were created equity con- sidered that these acts did not apply. Where the uses 1 34 Hen. VIII. c. 5. 2 43 Eliz. c. 4. 102 THE LAW OF WILLS. were charitable and the devisor competent, equity would aid even a defective gift to uses.^ This original jurisdiction of equity to enforce char- itable trusts is a most important fact in this country. Though the English Mortmain Acts have not been received into our legislation, still in many of our States corporations are by statute incapable of taking lauds by devise. Now the Statute of Elizabeth has not been adopted into the legislation of these (if, indeed, in any of our) States; and the result would be, if the Statute of Elizabeth created new law, that in the States referred to devises for charitable uses to corporations would be void even in equity. That is not the case. While in such States a direct devise to a corporation would be void, a devise in trust for the use of a charitable corpo- ration would be good,^ unless statute has plainly said the contrary, or has set limitations to the doctrine. In many of the States there is no such disability in corporations to take by will ; ^ and even in the States 1 Attorney-Gen. v. Taucrerl, 1 Eden, 10; s. c. 1 W. Black. 91. There was formerly much douht concerning the meaning of 43 Eliz. c. 4. But the view stated supra has been shown as a matter of history to be the true one. See Jackson v. Phillips, 14 Allen, 5.39, 577 ; Kent, ii. 286-288. Many cases of the kind, long before the statute of Elizabeth, have been brought to light. That statute, beyond pointing out the general features of a charity, only provided another mode of dealing witli the subject ; and that mode proved a failure. The old mode in equity remained and remains effective. 2 Orphan Asylum v. McCartee, 9 Cowen, 437 ; Potter v. Chapin, 6 Paige, 639 ; Street v. Mott, 7 Paige, 77 ; Moore v. Moore, 4 Dana, 357; Jackson r. Phillips, 14 Allen, 539, 577; Ould v. Washington Hospital, 95 U. S. 303 ; Howard v. American Peace Soc, 49 Maine, 288 ; Clement r. Hyde, 50 Vt. 716 ; Norris v. Thompson, 19 N. J. Eq. 307 ; Dickson ;•. Montgomery, 1 Swan, 348 ; Lagrange Co. v. Eogers, 55 Ind. 297 ; Kent, ii. 288. See Pomeroy, Equity, ii. § 1029, and notes. 3 See, e. g., Phillips Academy v. King, 12 Mass. 546; Burbank v. Whitney, 24 Pick. 151 ; Gibson v. McCall, 1 Richardson, 174; Burr v. Smith, 7 Vt. 241 ; McCartee ;;. Orphans' A.sj-lum, 9 Cowen, 437. 'COMPETENT' BENEFICIARY. 103 which prohibit devises to corporations, the prohibition may be, and constantly is, done away by the charter of a particular corporation or by other legislation. In the absence of restraining legislation a corporation is as competent to receive a devise or a legacy as is a natural person. Statutes and charters of incorporation generally limit the amount of property which can be held by a corporation. In such a case it is a question what will be the effect if by a particular gift the corporation receive more than the amount allowed. Some of the courts hold that the gift will be invalid to the extent of the excess.^ Others hold that the provision operates only in favor of the State, while the whole gift remains good to the charity. ^ Statutes in some of the States also provide that unless a certain stated length of time shall elapse between the execution of the will and the death of the testator, gifts by him to charitable corporations shall be void. Such legislation is of course aimed at death-bed gifts of the kind, and is based upon the theory that the testator ought to have time to think over the matter after making his will, and so be able to revoke a perhaps hasty and ill- advised bequest.^ Aliens have no heritable blood, by common law doc- trine, and hence cannot take lands by descent except as 1 Gromie v. Louisville Orphans' Soc. 3 Bush, 865 ; McGraw v. Cornell Uuiv. Ill N. Y. 66; Chamberlain v. Chamberlain, 43 N. Y. 424 ; Davidson College v. Chambers, 3 Jones, Eq. 253. 2 See Jones v. Habersham, 107 U. S. 174, 183; De Campr. Dobbins, 29 N.J. Eq. 35; s. c. 31 N. J. Eq. 671, 690; Wood v. Hammond, 16 R. I. 98. 3 For limitations of capacity in corporations based on residence of the testator, see Thompson v. Swoope, 24 Penn. St. 474 ; White v. Howard, 38 Conn. 342; American Bible Soc. v. Marshall, 15 Ohio St. 537 ; Chamberlain v. Chamberlain, 43 N. Y. 424 ; Kerr v. Dougherty, 79 N. Y. 327 ; Healey v. Reed, 153 Mass. 197. 104 THE LAW OF WILLS. statute permits; they are not disqualified from taking lands, ^ and of course they are not disquali- Aliens. fied from taking chattels,^ by will (or other- wise), unless statute disqualify them.^ But at common law an alien cannot hold land against the State. The consequence is that a devise to an alien would be good until the State took action in the matter; and until the State seizes the property the alien has complete authority over it and may convey it to another or maintain suit to recover it.* Naturalization will, it seems, confirm a title to lands even against the State, where the lands were derived by will (or other purchase).^ Another disqualification to receive a legacy or a devise arises where the legatee or devisee becomes an attesting Attesting wit- witness to the will. He may be competent °^^^®^- by statute to attest the will, but if so made competent he is, on the other hand, made incapable of taking the bounty. In some States he is practically given his choice of remaining a good witness to the will by releasing the gift, or of retaining the gift and losing the position of witness ; but (except in only one or two States) he cannot take the gift and still be a witness to the will.^ 1 Kent, ii. 54 ; Phillips v. Moore, 100 U. S. 208 ; Cross v. De Valle, 1 Wall 1, 13; Hall v. Hall, 81 N. Y. 130; Muuro i\ Merchant, 28 N. Y. 9 ; Wadsworth v. Wadsworth, 2 Kern. 376. See also Hauen- stein V. Lynham, 100 U. S. 483. 2 Craig V. Leslie, 3 Wheat. 563 ; Polk i;. Ralston, 2 Humph. 537. 8 The statutes must always be consulted ; legislation has taken place upon the subject and is likely to continue. * People V. Conklin, 2 Hill, 67 ; Bradstreet v. Supervisors, 13 Wend. 546 ; McCreery v. Allender, 4 Har. & M. 409 ; Foss v. Crisp, 20 Pick. 121. ^ People V. Conklin, supra; Osterman v. Baldwin, 6 Wall. 116; Harley v. State, 40 Ala. 689. fi See ante, pp. 50, 5 1 . 'TO TAKE EFFECT AFTER DEATH.' 105 CHAPTER XI. * TO TAKE EFFECT AFTER DEATH. ' A CONTRACT, grant, or other instrument creating, en- larging, limiting, or defining rights may postpone the operation of the right until after one's t^- .• .• u '^ _ ° Distinction be- death, but such instruments differ still from tween wills and wills in the matter of post-mortem operation grants, and the in that they take effect as valid and binding '''^^' instruments at present or in the lifetime of the maker, or may so take effect. A will has no such effect; it creates no rights in the testator's lifetime, though laws may treat the instrument itself, before the testator's death, as one of a solemn and important character, no more to be disturbed by strangers than instruments conferring present rights. That a will has no force as a disposition of property in the lifetime of the testator may be seen by a simple illustration. A father having three sons executes his will, by which he devises all his lauds to one of them. The others becoming informed of the fact induce their father, by false and fraudulent representations in regard to their brother, to revoke the devise, and the devise remains revoked at the time of the father's death. This is no wrong in law to the devisee, inasmuch as he could have no right under the will until after the testator's death, and none, of course, then, unless the will remained unrevoked.^ 1 Hutchins v. Hutchins, 7 Hill, 104 ; Cases on Torts, 76. 106 THE LAW OF WILLS. The essential feature of a will, iu this particular, is that of its own uature it does not take effect until after Essential feat- the death of the testator. An instrument of ure of will. ^jjjj^ kind is so far a will, however inartificial, and whatever it may be called by the document itself. Accordingly an instrument described on its face as a deed may be admitted to probate as a will.^ And the same may be true of an instrument which, in fact, is in part a deed, the rest being a will. Thus an indenture was made between two persons, whereby one bargained and sold, for a price to the other, a piece of land, in trust to sell it after the seller's death, and provided that part of the money to be received on the sale should be used in a certain way, the seller bequeathing the rest, together with all of the seller's personal estate, to cer- tain persons; and appointing executors of his 'will.' This, which was all in one instrument, was held to be a will.- More than that, two separate instruments, one taken alone being a deed and the other a will, may, according to doctrine elsewhere considered,^ be treated mentary and ^s One testamentary instrument. Thus by toT'hfstru-^"' ^^^^ cl^^^y executed and attested, a testator ments: inten- devised freehold lands to certain uses, with remainder to such persons and for such estates as he by any deed or instrument in writing, to be executed by him and attested by two witnesses, might appoint, thus reserving a power to dispose of such re- mainder thereafter. On the next day the same person executed an instrument as a deed, reciting the power in 1 Symraes v. Arnold, 10 Ga. 506 ; Gage v. Gage, 12 N. H. 371 ; Wheeler v. Durant, 3 Rich. Eq. 4.52. ■^ Ilixon V. Wytham, 1 Ch. Cas. 248; Jarman, 19. 8 Ante, pp. 59-62. 'TO TAKE EFFECT AFTER DEATH.' 107 the will and concludiug: ' Now know ye that by this my deed-poll I do direct and appoint ' accordingly. This second instrument was executed as a deed and yet was held testamentary; and not having been executed as required by the Statute of Wills was invalid.^ It was not good as a deed because in its real nature, as con- nected with the power, it was testamentary ; it was not good as a will for want of due attestation as such. On the other hand, an instrument standing by itself and wholly in the form of a present or past gift may, after all, be intended to take effect as a will. Writings such as the following have been held testamentary, in connection with admissible extrinsic evidence that they were executed with such intention : ' I wish A to have my bank-book for her own use ; ' ^ ' I hereby make a free gift to A, of the sum deposited' in a certain bank;^ ' Know ye that ... I have given and granted, and by these presents do freely give and grant, unto the said A . . . the monej's invested in my name in the Sheffield Savings Bank; ' * • I have given all to A and her sons; they are to pay [certain sums] to B and C and to divide the residue among themselves.' ^ The external evidence received in these cases showed that it was not the inten- tion of the maker of the instrument to cut himself off 1 Habergham v. Vincent, 2 Ves. Jr. 204 ; s. c. 4 Bro. C. C. 355 (omittino; the matter of the copyhold estates). A testator cannot re- serve power to dispose of his estate thereafter by will. If the deed had been an existing instrument, it might have been incorporated into the will rogardless of attestation. Ante, pp. 59-62. 2 Cock r. Cooke, L. R. 1 P. & D. 241. 8 Robertson v. Smith, L. R. 2 P. & D. 43. * In re Slinn, 15 P. J). 156. ' It is clear,' said the court, ' that ex- trinsic evidence is admissible for the purpose of showing with what intention an ambiguous paper has been executed.' Tliore was ' evidence of expressions wholly inconsistent witli the idea that it was a gift out and out.' 6 In re Coles, L. R. 2 P. & D. 362 ; Jarman, 23. 108 THE LAW OF WILLS. from the use of the property; the property was to go to the person designated only after the owner could no longer have it — only after his death. It is fair and it is correct to infer that if the instru- ment itself, or admissible evidence brought forward, shows that the real intention of the maker was to make a post-mortem disposition of his property, that inten- tion will be allowed to take effect, however ignorantly or inartificially expressed.^ 1 The following cases, in which the writing (duly executed and attested) was held testamentary, show how inartificial a disposition may be and yet he upheld : ' March th 4 Will my Properti to my wief my death John Sullivan.' Sullivan's Estate, 130 Penn. St. 342. ' Ann after my death you are to have forty thousand dollars ; this you are to have will or no will.' Byers r. Hoppe, 61 Md. 206. ' At my death my estate or my executor pay to A three thousand dollars.' Cover V. Stem, 67 Md. 449. Further, what constitutes a will, see Gillham v. Mustin, 42 Ala. 365 ; In re Skerrett, 67 Cal. 585 ; Bristol v. Bristol, 53 Conn. 242 ; Seals v. Pierce, 83 Ga. 787 ; Massey v. Huntington, 118 111. 80; Castor v. Jones, 86 Ind. 289 ; Lautenshlager v. Lautenshlager, 80 Mich. 285 ; Cunning- ham V. Davis, 62 Miss. 366 ; Towle v. Wood, 60 N. H. 434 ; Reagan v. Stanley, 11 Lea, 316; Carlton v. Cameron, 54 Texas, 72; Coffman v. Coffman, 85 Va. 459. 'MEANTIME BEING REVOCABLE.' 109 CHAPTER XII. ' SIEANTIME BEING REVOCABLE.' It is one of the tests of a will that it is revocable dur- ing the lifetime of the testator; that is, the instrument is not a will if the maker cannot revoke it. ^ . . Test of a will. The test does not work the otnerway; it is not true that an instrument which the maker may revoke is a will, even though it makes a disposition of property to be received after his death. A man may convey prop- erty subject to a life interest in himself, reserving in the instrument a power of revocation, without thereby con- verting a conveyance inter vivos into a will within the law relating to wills. A present right having been created in another by the transaction, the instrument cannot of itself be a will.-' A will as a will cannot create rights in the lifetime of the testator, though, as we have seen, a will maj^ carry with it external interests which the testator cannot annul. If a right is created against the maker of an instrument, it is only a truism to say that the maker cannot revoke the right; but as revocability is necessary to a will, the truism shows that the instrument cannot be a will. It is consistent with this that one may bind oneself to make a will, or rather to make a devise or legacy to 1 Thompson v. Brown, .3 ]\Iylne & K. 32, virtually overruling At- torney-Gen. V. Jones, 3 Price, 368. 110 THE LAW OF WILLS. another, so that a failure to do so will be a breach of „. ,. contract.^ Nor would it be inconsistent with Binding one- self to make a what has been said to say that one may bind oneself by contract not to revoke one's will. There is no way of preventing a person from breaking such agreement. The instrument, being a will and not itself creating rights while the testator is alive, may be revoked by him. It matters not as regards that power of revocation that by some other transaction the testator has bound himself not to revoke the will; such fact would avail nothing in a court of probate upon an attempt to set up a will which the testator had revoked according to law.^ All that the external agreement amounts to is that if it is broken the courts will enforce performance of the thing promised, out of the estate of the party bound, after his death. Thus, suppose that A and B agree, each in consideration of the other's undertaking, that each shall devise to the other all the land each owns; that separate wills are executed by each accordingly; that one of them dies, and the other then discovers that the decedent had revoked his will. That will could in no way be set on foot. The contract to devise might be binding, and the court might decree to the living the land left by the dead ; but if so it would be the ordinary case of a decree specifically enforcing a contract for the purchase of land.^ And, on the other hand, if the will 1 Hale V. Hale, 90 Va. 728, 7.30 ; Swann v. Housman, id. 816 ; Manning v. Pippen, 86 Ala. 357; Eussell v. Switzer, 63 Ga. 711; Gould V. Mansfield, 103 Mass. 408 ; Bird v. Pope, 73 Mich. 89 ; Anding I'. Davis, 38 Miss. 574. The evidence of such contract should be clear and convincing. Swann v. Flousman, supra ; Rice v. Hartrnan, 84 Va. 251. 2 See Gould v. Mansfield, 103 Mass. 408; Caton v. Caton, L. R. 1 Ch. 137 ; s. c. L. R. 2 H. L. 127. See Ex parte Day, 1 Bradf. 476, infra. 3 See Gould v. Mansfield, supra, where the contract was not bind- •MEANTIME BEING REVOCABLE.' Ill in question had not been reyoked, the court would prob- ably admit it to probate as a will; the fact that there existed a binding agreement to make it would not, it seems, take away its testamentary character, for it would still be revocable as a will.^ If this be true, it results that an instrument may be a will, though to revoke it would be to violate a right, — a right created independently of the will. Consequences: Therein lies a cardinal difference between J^'"' ^*''''^- wills and instruments creating rights; these latter can- not be revoked without the consent of the person in whose favor the right is created. But a difficulty arises at this point. Suppose that, instead of separate wills in favor of each of the testators, two or more should join in mak- ing a single ' will,' declaring in technical and deliberate language, ' We jointly give and devise ' the property named; what would be the effect? By analogy to con- tract, and that analogy appears to have been applied, it would require the joint act of all the ' testators ' to re- voke the instrument, so long as they lived; towards each alone it would be irrevocable.^ After the death of one the joint nature of the instrument would be destroyed; but, as before that event, none of the ' testators ' could ing. Where the contract is valid, the heirs or the devisees (as the case may be) of the decedent will be trustees in equity for performing the contract. Hobson v. Blackburn, 1 Addams, 274. 1 In Gould V. Mansfield the plaintiff had made her will in accord- ance with the agreement. But the court said that that 'instrument was ambulatory and might have been revoked In' various acts, or by implication of law from subsequent changes in the condition or cir- cumstances of the testator. Gen. Sts. c. 92, § 11. The plaintiff's property is still, as it always has been, in her own hands and subject to her own control.' That is, she could still revoke her will. 2 Not of course because it created rights, but because of the technical rule concerning joint instruments inter partes. 112 THE LAW OF WILLS. revoke the instrument without consent of all, it is ex- tremely doubtful if the instrument could be regarded as a true will.^ It must be a will when executed, to be a will at all. It may, however, be the case that the parties are deal- ing, not with joint interests, but with property owned severally by each of them, only the instrument being joint; in which case the language of the instrument might justify the construction that it was intended for a sep- arate disposition by each, as if by separate wills. Then the case would be the same in effect as the one first stated, and the instrument would be testamentary. It has, indeed, been laid down that though the instrument in point of form be joint, yet if it only dispose of the estate of the one who may die first, its legal effect is the same as if each had made a separate will disposing of the estate of each to the other in case of that other surviving.^ It would not affect the case that the two (or more) should severally dispose of their separate interests to Joint will to ^ third person; difficulty arises only when third person. they attempt in this way to dispose of a joint interest, or, what seems to be the same thing, to treat their separate interests as joint, and so to dispose of them to another. In such a case there is a joint instrument, in the technical sense, and hence an instru- ment that neither can revoke without the other's consent. There is, however, one serious objection to treating instruments executed by more than one person as wills, whether the makers deal jointly or severally with the interests disposed of, and that is that the statutes plainly 1 See State Bank v. Bliss, 67 Coun. 317; Walker v. Walker, U Ohio St. 157. 2 Lewis V. Schofield, 26 Conn. 452. 'MEANTIME BEING REVOCABLE.' 113 contemplate only instruments executed by one person, and there is no other law of wills except that of the statutes. The statute must be complied with, and if there are two signatures to the instrument, the instru- ment, to be a will, must plainly' be the several will of each and revocable by each, as if separately drawn out.^ MARRIAGE. By the common law of this country, as by the common law of England, marriage of a woman revokes a will made by her before the marriage.^ In some Woman's will States this is statutory law. ^ The revoca- at common law. tion is complete; the instrument is no longer a will for any purpose.* This result, according to the current of ^ There is some confusion upon this subject, but the text expresses the practical result of the general current of authority. See Lewis v. Schofield, 26 Conn. 452; State Bank v. Bliss, 67 Conn. 317; Evans v. Smith, 28 Ga. 98; Walker v. Walker, U Ohio St. 157; Betts v. Harper, 39 Ohio St. 639 ; Schumacker v. Schmidt, 44 Ala. 454. These cases support Lewis v. Schofield. In Ex parte Day, 1 Bradf. 476, it is held that mutual or conjoint wills may be admitted to probate tliough executed by binding agreement, for though irrevocable as contracts, they are still revocable p.s wills by either of the testators on notice in the lifetime of both. After the death of either the will would perhaps be binding upon the other. Dufour ?;. Pereira, 1 Dick. 419. But see State Bank v. Bliss, 67 Conn. 317. Further see Black v. Richards, 95 lud. 184; In re Diez, 50 N. Y. 180; Mosser v. Mosser, 32 Ala. 551 ; March v. Iluyter, 50 Texas, 243 ; Wyche v. Clapp, 43 Texas, 544 ; Breathitt v. Whittaker, 8 B. Mon. 530. '^ Nutt V. Norton, 142 Mass. 242, 245 ; Crum v. Sawyer, 132 111. 443 ; Craft's Estate, 164 Penn. St. 520 (statute) ; Fidelity Trust Co.'s Ap- peal, 121 Penn. St. 1 ; Morton v. Orion, 45 Vt. 145 ; Lansing i;. Haynes, 95 Mich. 16, 19 ; In re Ward, 70 Wis. 251. The substance of what here appears is from a note by the present writer to Jarman on Wills, 110. 3 In re Comassi, 107 Cal. 1 (this statute not applicable to a second marriage after the will). * Fidelity Trust Co.'s Appeal, supra. 8 114 THE LAW OF WILLS. authority, is not due to any presumptive intention; hence it is immaterial that the testatrix did not l^now that mar- riage would revoke her will.^ The rule is a necessary consequence of the husband's common-law marital rights. The existence of those rights had the effect to prevent a married woman from having capacity to make a will; and, as a married woman could not make a will, she could not revoke one, revocation itself being of a testa- mentary nature. Hence, but for the rule that marriage worked a revocation of a woman's will, her will made before marriage would by the marriage lose its most characteristic feature; it would become irrevocable. It has, however, always been possible to prevent this result by antenuptial treaty, whereby the intended hus- Antenuptial band put aside all claims in or to his wife's treaty. property accruing by virtue of his marital rights.^ But even in such a case the birth of a child not provided for by the will would revoke the instrument. The fact that the woman who when unmarried made the will survived her husband would not revive her will.^ A man's will, however, is not at common law revoked by his subsequent marriage; but if the birth of a child, Marriage as to even posthumously,* follow, revocation takes birt"hVf chi'id: place.^ But just as the revocation by mar- treaty, riage of a woman's antenuptial will could be prevented by treaty before the marriage, so the revo- 1 Brown v. Clark, 77 N. Y. 3G9. But see Miller v. Phillips, 9 R. L 141. 2 Havens v. Van Pen Burgh, 1 Denio, 27; Osgood v. Bliss, 141 Mass. 476 ; Stewart v. Mulholland, 88 Ky. 38. 8 Brown v. Clark, 77 N. Y. 369. * Hart V. Hart, 70 Ga. 764. 5 Gay V. Gay, 84 Ala. 38 ; Lansing v. Haynes, 95 Mich. 16, 19 ; Mil- burn V. Milburn, 60 Iowa, 411 (illegitimate child recognized by father •MEANTIME BEING REVOCABLE.' 115 cation of a man's will by marriage and the birth of a child could be prevented by providing for the children to be born of the marriage.^ Such provision need not be made in the will.^ Property acquired after making the will, and not passing by it, cannot be treated as a provision for such children.^ Unlike the rule in regard to the revocation by mar- riage of a woman's will, this rule of the revocation of a man's will has sometimes been said to rest ^ . Ground of revo- upon the ground of presumed intention be- cation: tacit cause of the change of circumstances. That *^°" ""^"" is, it is considered that on the birth of a child of the marriage the situation is so changed that the husband would have revoked his will by express act had his atten- tion been called to the case.* It follows that the will is not revoked by marriage and birth, if it appears that the testator intended still that it should stand. This was the view which our courts adopted from England; but later authority in that country puts the subject in a different light. The later, and, it seems, the more cor- rect view, is that a tacit condition is annexed to the will, to wit, that the will shall not take effect in the event of the testator's marriage and the birth of a child thereof.^ "O^ with same effect) ; Goodsell's Appeal, 55 Conn. 171 ; Hart v. Hart, 70 Ga. 764 ; Davis i\ Fogle, 124 Ind. 41 ; Alden v. Johnson, 63 Iowa, 124 ; Baldwin v. Spriggs, 65 Md. 373 ; Morgan v. Davenport, 60 Texas, 230. 1 Gay V. Gay, 84 Ala. 38; Warner v. Beach, 4 Gray, 162. ^ Havens v. Van Den Burgh, 1 Denio, 27. 3 Baldwin v. Spriggs, 65 Md. 373. As to the effect of a divorce ob- tained by the testator, see Charlton v. Miller, 27 Ohio St. 298 ; Lan- sing V. Haynes, 95 Midi. 16; Baacke c. Baacke, 50 Neb. 18. * Gay V. Gay, supra ; Havens v. Van Den Burgh, supra ; Warner V. Beach, 4 Gray, 162, 163 ; Miller v. Phillips, 9 R. I. 141. ^ Marston v. Roe, 8 Ad. & E. 14 Ex. Ch. ; Israeli v. Rodon, 2 Moore, P. C. 51. 116 THE LAW OF WILLS. It matters not whether the will relates to realty or to personalty, or to both.^ Nor should it make any differ- ence, perhaps, that the testator had children by a former marriage, and that by the will he gave his property to them.^ Death in the testator's lifetime of the child in question will not revive the wilL^ The foregoing is common-law doctrine. The subject is more or less, and differently, affected by statute in the different States, in regard to marriage Statute. . „ ' , Ml i»T as a revocation of a woman s will. Many of the courts look upon the recent legislation in regard to married women, by which the marital rights of the husband have been so much changed, as having the effect to overturn the common-law rule of revocation by marriage in the case of a woman's will; the argument being that as the ground of the rule has been cut away, and married women may now make wills, the rule of rev- ocation is itself at an end.'* Some of our courts, how- ever, continue to hold that marriage alone, in the case of a woman, has the effect to revoke her antenuptial will. The legislation enlarging the powers of married women is considered not specific enough to justify the courts in treating it as abrogating the common-law rule of revocation.^ 1 Same cases ; Jacks v. Henderson, 1 Desaus. 543, 557. In Marston V. Roe the will disposed of realty ; in Israeli v. Roden, of personalty. 2 Havens i'. Van Den Burgli, supra. But see Marston v. Roe, supra. 3 Ash V. Ash, 9 Ohio St. 383. * Emery, Appellant, 81 Maine, 275 ; Wehb v. Jones, 36 N. J. Eq. 163; In re Ward, 70 Wis. 251. Statute in some States pnts the will of a woman on the footing of tlie common law as to wills of men. Noyes v. South worth, 55 Mich. 173. 5 Nutt V. Norton, 142 Mass. 242, 245 ; Brown v. Clark, 77 N. Y. 369. 'MEANTIME BEING REVOCABLE.' 117 What is said in the foregoing paragraphs relates to wills by which the testator or testatrix disposes of his or her own property ; marriage, or marriage -^-jUs u^ier and the birth of a child, will not revoke a powers, will by which the property of another, under a power of appointment, is disposed of.-^ Nor should the foregoing be confused with the rights of children not provided for by the parent's will, under legislation touching that sub- ject; such legislation not relating to future marriages. DESTRUCTION OP WILL: BURNING, TEARING, &C. The English Statute of Frauds enacted that ' no devise in writing of any lands, tenements, or hereditaments, nor any clause thereof, shall be revocable other- statute of wise than by some other will or codicil in Fi'auds. writing, or other writing declaring the same, or by burn- ing, cancelling, tearing, or obliterating the same by the testator himself, or in his presence and b}' his direction and consent; but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, cancelled, torn, or obliterated by the tes- tator or his direction in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing declaring the same.' This with some modifications in various States repre- sents the law of revocation (other than that befoi-e considered) in this country. Burning, tearing, and oblit- erating, animo revocandi, is doubtless an effective mode of revocation everywhere. And it matters not whether the will disposes of realty or personalty, or both; it was not necessary in the English Statute of Frauds to specify wills of personalty, for they always could be revoked in the modes mentioned by the statute. 1 See Osgood v. Bliss, 141 Mass. 476. 118 THE LAW or WILLS. lu some of our States other statutory words are used or suggested, such as 'defacing' aud ' niutilatiou. ' ^ 'Defacing' "^^^^ word ' destruction,' too, is often used, ' mutilating,' but that is probably only a general designa- ' destroying.' . ^ ./ o o tiou, used for convenience to cover, without enlarging, the words of the statute.^ On the other hand, because of other provisions of statute, cancellation, if not prior to execution, may not be sufficient to amount to revocation, where it consists merely in drawing the pen through some term or provision, unless the act is signed and witnessed according to the manner of a written revocation.^ Under such legislation only burning, tear- ing, or otherwise destroying u will would work a revoca- tion of it by act done to or upon the will. The word * tearing ' is held to include cutting; * ' for it would be absurd to say that a will torn into two pieces was revoked, but that if cut into twenty pieces it was not revoked.'^ These modes of revocation are exclusive of all other modes by act done upon or to the will. That is, no act done upon or to the will falling short of the riiese modes . exclusive of meaning in law of the words of the statute " ^*®' can amount to revocation.® Hence it would be of no use for the testator to write upon his will, ' I revoke this will,' though adding his signature and a date; he should have the declaration attested, written 1 Succession of Miih, 35 La. An. 394 ; Tucker v. Whiteliead, 59 Miss. 594. 2 See Wilborn v. Shell, 59 Miss. 205 ; McClure v. McClure, 86 Teun. 173. 3 Comp, 1 Vict. c. 26, §§ 20, 21, to that effect. 4 Hobbs V. Knight, 1 Curteis, 768. * Jarman, 115. •^ See Gay v. Gay, 60 Iowa, 415; Stickney v. Hammond, 138 Mass. 120; Kennedy v. Upshaw, 64 Texas, 411. 'MEANTIME BEING REVOCABLE.' 119 revocation being treated, so far, as a testamentary act.^ Much less would a written declaration, unattested, of intent to revoke work a revocation.- Indeed it is held that the cancellation of the testator's signature by his drawing his pen through it, animo revoeandi, has no effect.^ Nor is it a revocation, or, if no later inconsis- tent will is found, any evidence of revocation, that the testator has left a duly executed will among worthless papers.* And this though such papers are memoranda drafts of incomplete wills later than the one in question.^ The statutes accordingly declare in effect that a written will cannot be revoked orally. "^ Hence a direction by the testator to destroy his will has no effect, -^^ ^^.^i revoca- and that, too, though he afterwards believes, tion. contrary to the fact, that his direction was carried out,'' To destroy a will completel}- it is not necessary, in a tearing or cutting, or act of like nature, to tear or sever the instrument into two or more parts. The Destroying: instrument after tearing may still hang to- what amounts gether and yet be destroyed as a will. More *''■ than that, the tearing out, or the like, of that which, 1 In re Ladd, 60 Wis. 187, and cases cited. Contra, Witter v. Mott, 2 Conn. 67 ; Warner v. Warner, 37 Vt. 356. 2 Rife's Appeal, 110 Penn. St. 232. 8 Gay V- Gay, 60 Iowa, 415. But see Succession of Miih, 35 La. An. 394. Tearing off a seal with intent to revoke is, however, a revocation, though a seal is not necessary to a will. But that is because tlie act is a tearirifj. See infra. * Hoitt V. Hoitt, 63 N. H. 475. 6 Id. 6 Kirkpatrick v. Jenkins, 96 Tenn. 85 ; Lansing i-. Haynes, 95 Mich. 16, 19 ; Iloitt V. Hoitt, 63 N. H. 475 ; Hargroves v. Redd, 43 Ga. 142 ; Wittman v. Goodhand, 26 Md. 95 ; Jones v. Moseley, 40 Miss. 261 ; Bel- shaw !'. Chit wood, 141 Ind. 377. ' McBride v. McBride, 26 Gratt. 476; Mundy v. Muudy, 15 N. J. Eq. 290. 120 THE LAW OF WILLS. though but part of the physical instrument, is to be con- sidered as the principal part, or that wliich, like the sig- nature, gives effect to the whole, will revoke the will as completely as if it had been burnt up.^ Probably the same result would be effected by tearing off the signa- tures of the witnesses. Indeed it has been held that the scratching out, with a knife, of the signatures of the tes- tator and of the witnesses has the same effect.^ So, too, to tear off the last signature to a will in several sheets, each of which is signed and witnessed, revokes the will completely, though the other signatures are untouched.^ Even tearing off a seal, with intent to revoke a will pur- porting to be executed under seal, has been held to have the same effect, though a seal is not necessary to a will,* for without the seal the instrument is not the one which the testator intended when he executed it. A more difficult case to deal with is presented where it appears that an intent to destroy the will was followed Auempt to ^ip by attempted execution of the purpose, destroy frus- j^^j. ^^q attem])t was frustrated by another trated: decep- '■ ■' tion. when but partly carried out. The intent to destroy amounts to nothing, as we have seen, unless it is put into execution, and that, too, by execution, accord- ing to the statute; but what of intention to destroy partly executed and frustrated, and yet not stayed by any change of mind in the testator ? The following is a statement of a familiar English case upon the point: 1 Hohbs V. Knight, 1 Curteis, 768 ; Bell v. Fothergill, L. 11. 2 P. & D. 148; In re Sinijison, ft Jur. n. s. 1366. See Succession of Miih, 3.5 La. An. 394 ; Jarman, 115. 2 In re Morton, 12 P. D. 141. 8 In re Gullan, 1 Swab. & T. 29 ; Gullan v. Grove, 26 Beav. 64. ♦ Avery v. Pixley, 4 Mass. 4.50 ; In re White, 25 N. J. Eq. 501 ; Price V. Powell, 3 Hurl. & N. 341. See Williams v. Tyley, Johns. 530. 'MEANTIME BEING KEVOCABLE.' 121 A testator dissatisfied witli bis will, as he had often declared, being in bed near the fire, ordered his servant to fetch his will, which she did. The will was then whole, bnt somewhat creased. The testator opened and looked at it, then ript it so as nearly to tear off a piece, and, now rumpling it up, threw it upon the fire. It fell off, but still would soon have been burnt up had not the servant picked it up and put it away. This the testator did not see her do, and the servant afterwards told him, upon repeated inquiries, that she had destroyed the paper, which was false. The testator afterwards told a friend that he had destroyed his will, and should make no other until he had seen his brother. He wrote to his brother to the same effect, desiring him to come to him, and saying, 'If I die intestate, it will cause uneasiness.' But the testator died without making another will. It was found by the jury, and the verdict was on a motion for a new trial supported by the opinion of the court, that the will had been revoked. The court said that there had been both a burning and a tearing, and that throwing the will on the fire with intent to burn it up was enough under the statute, notwithstanding the fact that it fell off only slightly singed.-' The meaning of this case must not be mistaken. It does not teach that an attempt to destroy a will by tear- ing and burning, or in any other way, amounts to a rev- ocation within the meaning of such a statute as the one under consideration ; nor does it teach that a jur}' may find that an attempt of the kind satisfies the law. The case must be taken upon its special facts, beyond which it is not authority. The deception practised upon the testator, together with the singeing, is to be taken as a 1 Bibb V. Thomas, 2 W. Black. 1043, as stated in Jarnian, 120. See also "Wliite v. Casten, 1 Jones, 197; Jolinson v. Brailsford, 2 Nott & McC. 272. 122 THE LAW or wills. chief factor in the decision reached.^ There is, in- deed, even ground for doubt whether the statute is satis- fied where the testator's purpose was frustrated (as here) by the misconduct of another. Later English authority strengthens the doubt. A testator, according to the tes- timony of his servant, threw his will, as in the case just stated, on the fire; a relative of the testator who lived with him at once snatched it away, so that the fire merely singed a covering of the will. The testator afterwards insisted that the relative give up the will to be burnt, which she promised to do. To satisfy the testator she threw something into the fire, which she falsely said was the will. The testator appears to have doubted her, for he said, in reply to a doubt about it, expressed by his servant, ' I do not care ; I will go to L. if I am alive and well, and make another will.' It was held that there had been no revocation of the will.^ Our American courts, or some of them, however, appear to hold that deception practised upon the testator, iu an attempt made by him according to the mode American doc- i. ^ r-i trine on the of the statute to revoke his will, should not ^" ■'^'^ ■ be allowed to prevail over the testator's pur- pose; the will is to be treated as revoked.^ Indeed it is 1 See Mundy v. Mundy, 15 N. J. Eq. 290 ; Gains v. Gains, 2 A. K. Marsh. 190; Jackson v. Betts, 9 Coweu, 208; Hise v. Fiucher, 10 Ired. 1.39. 2 Doe V. Harris, 6 Ad. & E. 209. See Cheese v. Lovejoy, 2 P. D. 251. 'It is impossible,' said Lord Denman iu Doe v. Harris, 'to say that singeing a cover is hurning a will within the meaning of the stat- ute.' Patterson, J. : ' To hold that it was so would he saying that a strong intention to hnrn was a burning. There must be, at all events, a partial hurning of the instrument itself.' 3 Pryor v. Coggin, 17 Ga. 444; Smiley v. Gambill, 2 Head, 164; Blanchard v. Blanchard, .32 Vt. 62. See Melanefy v. Morri.son, 152 Mass. 47.3, 476, where the effect of force or fraud is left au open question. 'MEANTIME BEING REVOCABLE.' 123 broadly laid down in this country that if a revocation, as by burning, was interfered with by fraud, without the testator's knowledge, the will is void not merely at this stage, but does not become valid afterwards on discovery of the fraud without some act amounting to a new pub- lication of it.^ But the mere fact that a testator sup- poses that a direction by him to destro}- his will has been complied with would nowhere be considered a com- pliance with the statute.^ Whatever is to be thought of the effect of deception practised upon a testator, who has in this way partly carried out his purpose to destroy his will, it is clear that he himself may change his mind before his act of destruction has become final. And if he should do so, and restoi'e the will if, and as far as, possible, as by put- ting it together again entire after tearing it asunder, the will remains good.^ But if restoration is impossil)le, the testator's change of mind afterwards will be only repentance of an act which cannot now be helped. It sometimes happens that a testator, intending to destroy his will, destroys as a matter of fact another instrument by mistake, supposing it to be . ■^ J 1 I w Destrovinp the his will. It is held in this country that, wiong'instiu- iu such a case, if the testator, after thus ^^^^' destroying the wrong instrument, continues in the belief that he has destroyed his will, without any subsequent 1 Kent V. Mahaffy, 10 Ohio St. 204 ; Bohanan v. Walcot, 1 How. (Miss.) 33f) ; Burns v. Burns, 4 Serg. & R. 567. 2 Boyd V. Cook, 3 Leigh, 32 ; Malone v. Hobbs, 1 Robinson, 346. 8 Doe V. Perks, 3 Barn. & Aid. 489 ; Doe v. Harris, supra ; Elms v. Elms, 1 Swab. & T. 155. See In re Cockayne, 1 Deac. 177 ; s. c. 2 Jur. N. s. 454. It may not be necessary for the testator to repair a breach made in the will with intent to destroy it, where he changes his mind before the will is torn asunder. 121 THE LAW OF WILLS. recognition of it or knowledge of its existence, the will is to be considered as revoked.^ The modes of revocation, specified by the later legis- lation, have reference, generally speaking, to revoking Partial revoca- the whole will, not to revoking parts of it ; *'""., ^,v !,?!.i°?' so that ordinarily there can be no such thing like. as partial revocation by burning, tearing, or destroying. So, too, obliterating, erasing, or cancel- ling portions of a will in most States have no effect, as we have seen, unless signed and attested, if it is possible still to make out or prove the language affected. ^ In some States, however, the statute has been interpreted to refer to part, as well as to entire revocation; ^ as in Massachusetts, by treating the statute as including early legislation which expressly permitted devises ' or any part thereof ' to be revoked.* And it would probably be held by most courts that cutting out or obliterating a clause the contents of which cannot now be made out or proved, would work a revocation pro tanto, but not entire except in cases in which that which is left de- pended upon the part destroyed so as not to be separable from it. These statutory modes of revocation raise only a pre- sumption of intent to revoke; which presumption may 1 Smiley v. Gambill, 2 Head, 164 ; Ford v. Ford, 7 Humph. 104. 2 Simrell's Estate, 154 Peiin. St. 604 ; Lovell v. Quitmau, 88 N. Y. 377, 381 ; Law v. Law, 83 Ala. 432; Eschbach v. Collins, 61 Md. 478; Griffin v. Brooks, 48 Ohio St. 211 ; Hesterberg v. Clark, 166 HI. 241 ; Lurie v. Radnitzer, id. 609. 3 Bigelow V. GiUott, 123 Mass. 102; Townshend v. Howard, 86 Maine, 28.5 ; Succession of Miih, 35 La. An. 394 ; In re Miles, 68 Conn. 237. 4 Bigelow V. GiUott, 123 Mass. 102. But see Law v. Law, 83 Ala. 432. 'MEANTIME BEING REVOCABLE.' 125 be overturned (or fortified) by other evidence,^ such as evideuce of declaratious of the testator presumptive accompanying the act, or near the time '"'ent. of it.- But it should be well observed that evidence of intention to revoke, or the contrary, is admissible only ■when an act appears upon the will which presumptively satisfies the meaning of the statute.^ It should also be noticed that acts done to or upon the will stand upon a different footing from language directly or indirectly revocatory. Such acts are explainable because they are equivocal, while language of revocation is, of course, decisive of intention.* The physical destruction of a will may then be ex- plained away by evidence that it was done without in- tent to revoke.^ Thus if a testator should intent to revoke destroy his will through inadvertence,^ or necessary, where intending to cut out a particular provision, leav- ing the rest intact, he should by mistake cut out some- thing else, such as part of the attestation," or where he should destroy his will upon the mistaken belief that it was invalid,® or that it had already been revoked,® or only with intent to make a fair copy of it,^° the will may 1 Law w Law, supra; In re Kidder, 66 Cal. 487 ; Forbingi'. Weber, 99 Ind. 588 ; Caeman r. Van Harke, 33 Kans. 333. 2 Caeman v. Van Harke, supra. 3 Gay V. Gav, 60 Iowa, 41.5 ; Hoitt v. Hoitt, 63 N. H. 475. * "Wurzell V. Beckman, 52 Mich. 478. 5 Law V. Law, 83 Ala. 432 ; In re Kidder, 66 Cal. 487 ; Smock v. Smock, 11 N. J. Eq. 156; Smilev r. GamMU, 2 Head, 164; Marr i'. Marr, id. 303. *> Burtonshaw v. Gilbert, Cowp. 52. 7 In re Taylor, 63 L. Times, 230. 8 Giles V. Warren, L. R. 2 P. & D. 401 ; In re Thornton, 14 P. D. 82. 9 Scott V. Scott, 1 Swab. & T. 258 ; Clarkson v. Clarkson, 2 Swab. & T. 497. 10 Wilbourn i'. Shell, 59 Miss. 205. 126 THE LAW OF WILLS. still be established as if the act had not been done. The same would be true where the testator, when destroying his will, lacked the power of legal intention, as where he was insane at the time,^ or where his own intention was subverted by the intention of another, as in a case of compulsion or undue influence.^ The effect of intention in revocation may be seen again in a case of dependent revocation. Thus where the act Dependent rev- ^f destruction is Connected with the mak- ocation. ji^g Qf another will, so as fairly to raise the implication or inference that the testator meant that the revocation of the first instrument, duly executed, should depend upon the second one's taking effect as a substi- tute, the legal result will correspond with the intention. Hence if the second instrument fail for any reason in taking effect, the first one will remain in force. ^ A tes- tator, having some time before executed a will, duly attested, to each sheet of which he had affixed a seal, instructed his solicitor to prepare another, and signed the draft prepared from the instructions, and then pro- ceeded to tear off the seals from the old will. After all the seals but one had thus been torn- off, he was informed that the new will, in its present condition, would not be operative upon his lands, which induced him to desist. Before the new will was completed, the testator died. It was held that the original will remained unrevoked.* 1 Eich V. Gilkey, 72 Maine, 595 ; Mclntire v. Worthiugton, 68 Md. 203. 2 Same cases ; Laugliton v. Atkins, 1 Pick. 5.35, 547 ; Balton v. Watson, 13 Ga. 63. 3 See Wilbourn t>. Shell, 59 Miss. 205 ; Yousey.rorman,51 Bush, 337. * Jarman, 120, citing Hyde v. Hyde, 1 Eq. Gas. Abr. 409; s. c. 3 Ch. Eep. 155. 'MEANTIME BEING REVOCABLE.' 127 Far within the doctrine just set forth would be the case of a testator destroying his will for the purpose of substituting a new one in place of it, which substitution new one, in fact, is not made. The will, intended, physically destroyed, could be established.^ So where the later of two inconsistent wills is destroyed in the belief that the earlier is thereby revived ; if this belief is erroneous (which will depend upon local statute), the later will remains in force. For the intention in such a case is not an intention to revoke but to validate another instrument; there is only a conditional intention to revoke, the condition fails, and the revocation fails with it.'- Obliterations, interlineations, and the like, on the face of a will, obviously stand upon a footing of their own, for they may have been made before the obliterations, execution of the will ;« in which case they f^'^^'^^^^Z^ should be treated as valid, for they are tion as to time, then in no sense revocations. The statutes invalidating alterations of the will refer to alterations after attesta- tion. When there is no evidence to show when the alterations were made, a presumption arises that they were made after the execution, according to the better authorities, and (if they are not duly attested) the result is, that they must be held invalid unless the presumption 1 Dancer v. Crabb, L. R. 3 P. & D. 98, 104. 2 Powell V. Powell, L. R. 1 P. & D. 98, 209, overruling Dickinson V. Swatraan, 4 Swab. & T. 205. Compare revocation under mistake of fact as conditional revocation. But of course the mere fact that a testator destroys the later of two inconsistent wills, having the intention to make another, which he fails to make, will not revive the earlier, though that should be found among his p.apers. McClure v. McClure, 86 Tenn. 173. 3 The instrument upon which a will is executed might possibly have been somewhat mutilated before the will was executed, but that would be unusual ; a contrary presumption would clearly arise. See Christ- mas V. Whinyates, 32 L. J. Prob. 73. 128 THE LAW OF WILLS. is overturned by competent evidence.^ This rule rests upon either of two grounds, or upon both of them. The first is that a substantive burden, according to most authorities, rests upon the proponent of a will to prove it. If, then, there be any indication of change of pur- pose in the testator, as by unattested alterations, it is for the proponent to show that the will was changed before it was executed. The other ground arises from what is called the ambulatory nature of wills. Unlike a deed, a will remains in the control of the testator during his lifetime, and it is such a common thing for testators to change their wills, that a presumption is deemed to arise that unattested alterations were made after the execution of the will,^ — a presumption, however, which assumes that the will has been in the possession of the testator since he executed it. The same presumption of the time of alterations arises where to the will in question there is a codicil which takes no notice of the alterations.^ A different case would perhaps be presented where it appears that a will was drawn up with blanks left for names and amounts, and that these blanks were afterwards filled, no evidence of the time when being before the court. In such a case it would be natural to suppose, and such would be the presumption, that the blanks were filled before execution of the will.* But slight circumstances might overturn the presumption.® 1 The cases are nnmerons. The following may he mentioned : Greville v. Tjlee, 7 Moore, P. C. 320 ; Cooper v. Bockett, 4 Moore, P. C. 419; Simmonds v. Eudall, 1 Sim. n. s. U.5 ; Doe v. Palmer, 16 Q. B. 747. But see Wikoff's Appeal, 15 Penn. St. 281. 2 Greville v. Tjlee, 7 Moore, P. C. 320. 8 Lushington v. Onslow, 12 Jur. 465 ; Rowley v. Merlin, 6 Jur. n. s. 1165. * In re Cadge, L. R. 1 P. & D. 543. 5 See Birch v. Birch, 6 Notes of Cases, 581. 'MEANTIME BEING EEVOCABLE.' 129 It may of course be shown that the alteration was made by a person not authorized to make it, in which case the will as it originally stood will be Alteration by admitted to probate, if the original Ian- stranger. guage can be made out or proved. But if the alteration was made by a person interested in the dispositions made, it is said that the original provision in his favor becomes void in consequence of his altering it.-^ Where a will is executed in duplicate, the destruction by the testator of but one of the two is somewhat ambig- uous. But there appears to be a presump- tion that the destruction of the one part was intended as a revocation of the will,^ especially where the one left is in the hands of another person (as for instance the executor) and is allowed to remain there. The same presumption arises, but in a weaker form, where the testator was in possession of both parts and destroyed one.^ In no case is the jjresumption conclusive. Lost wills sometimes raise difficult questions of revo- cation. The general rule appears to be that if a will is traced into the testator's hands and it can- not be found at his death, a prima facie pre- sumption arises that the testator destroyed it animo revocandi.* But if the will is traced out of his hands, 1 Jackson v. Malin, 15 Johns. 297, 298. 2 Grossman v. Grossman, 95 N. Y. 145; Hubbard v. Alexander, 3 Ch. D. 7.38. 3 Pemberton v. Pemberton, 13 Ves. 310. * Gardner v. Gardner, 177 Penn. St. 218; Boyle v. Boyle, 158 111. 228 ; Taylor v. Pegram, 151 111. 106, 1 16 ; In re Valentine, 93 Wis. 45 Cheever v. North, 106 Mich. 390; Behrens v. Behrens, 47 Ohio St. 323 McDonald v. :McDonald, 142 Ind. 55, 82 ; Snider r. Burk.«, 84 Ala. .53 In re Johnson, 40 Conn. 587 ; Lively v. Harwell, 29 Ga. 509 ; Collagan 9 130 THE LAW OF WILLS. he who asserts that it has been revoked must show that it came back into the testator's hands or was destroyed by his direction.^ Accordingly the presumption of revoca- tion does not arise when it appears that, upon the execu- tion of the will, it was deposited by the testator with another, and that the testator did not afterwards have it in his possession or have access to it.^ Much less will the presumption arise if the will is found in the posses- sion of a person interested in its provisions.^ It is necessary, generally speaking, that a will revok- ing prior wills should be probated, to give it effect by way of revocation as well as in any other way. But if, by reason of the loss or destruction of a valid revoking will, nothing more than the revoking clause or the plain revoking effect of the instrument can be proved, it is proper still to give it effect as a revocation.* The destruction of a will does not necessarily operate as a revocation of a codicil, unless the terms of the „ ,. , codicil are so dependent upon the will that Kevocation of ' ^ both will and it cannot take effect without the will. But in the absence of evidence there appears to be a presumption of some slight force that the testator intended that his act of revocation of the will should V. Burns, 57 Maine, 449 ; Newell v. Homer, 120 Mass. 277 ; Colly er ». Collyer, 110 N. Y. 481 ; Scoggins v. Turner, 98 N. C. 13.5; Jones ». Murphy, 8 Watts & S. 275 ; Brown v. Brown, 10 Yerg. 84; Minkler V. Minkler, 14 Vt. 125; Appling v. Eades, 1 Gratt. 286; Tynan v. Paschal, 27 Texas, 286. 1 Jarnian, 125. 2 Schultz V. Schnltz, 35 N. Y. 653. 8 Bennett v. Sherrod, 3 Ired. 306. * Wallis V. Wallis, 114 Mass. 510; Stevens v. Hope, 52 Mich. 65; In re Cunningham, 38 Minn. 169. The revoking part need not, it seems, he fomialh' probated, though a will may he probated in part, and for the rest refused probate. Laughton v. Atkins, 1 Pick. 535, 548. 'MEANTDIE BEING REVOCABLE.' 131 involve the codicil, though the codicil could stand with- out the will. Such at least was the doctrine in England before the Wills Act of the present reign. ^ SUCCESSIVE REVOKING WILLS. A single case of the effect of revocation will conclude this part of our subject. A testator has executed, suc- cessively, three wills. The second revokes the first; ^ the third revokes the second ; does the revocation of the middle will have the effect to revive the first one? The English courts, prior to the present Wills Act, answered this question affirmatively, as a prima facie presump- tion. The rule is now changed in P^ngland by the Act mentioned, which permits the revival of the first will only (1) where the testator re-executes it, or (2) where he executes a codicil which shows an intention to revive the will. Similar statutes prevail in this country.^ In this country, generally, in the absence of statute, there appears to be no presumption either way ; the ques- tion whether the first will is revived by the revocation of the second being a simple question of intention.^ But ^ See Jarman, 125. 2 A second will which completely di.sposes of all the property of the testator impliedly revokes tlie first. Teacle's Estate, 1.53 Penn. St. 219, 223. That is because the two are inconsistent or incompatilile. Id. If they are not, and there are no words of revocation, the second does not revoke the first. Gordon v. Whitlock, 92 Va. 723. See infra p. 136. 3 Rev. Stats. N. Y., ii. 66, § .53; Kent, iv. 532; In re Lones, 108 Cal. 688. The English statutes appear to have followed the altera- tions made by the Revised Statutes of New York, ' and they cut up a vast field of established judicial legislation.' Kent, iv. 533, note. * Pickens v. Davis, 134 Mass. 252 ; Simmons r. Simmons, 26 Barb. 68; Coh-in v. TYarford, 20 Md. 357 ; Harwell r. Lively, 30 Ga. 315 ; Scott V. Fink, 45 Mich. 241 ; Flintham v. Bradford, 10 Penn. St. 82, 85, 92; Hawes v. Nichols, 72 Texas, 481; Peck's Appeal, 50 Conn. 563. 132 THE LAW OF WILLS. there is authority to the contrary.^ According to the more general rule, in the absence of affirmative evidence of intention to revive, the first will remains revoked. ALIENATION. At common law a will disposing of lands operated as a conveyance, and consequently passed only such devised Wills of land as l^^ds as the testator was seised of at the couveyances. time of making his will, for the will oper- ated, for that particular purpose, from that time. The consequence of this was that subsequent alienation by the testator of such lands withdrew them from the opera- tion of the will, virtually revoking it to that extent. It made no difference that the testator afterwards re-ac- quired the lands, or, indeed, took them back by the same instrument or by a declaration of uses. This did not give effect to a devise which had been made before the title was acquired ; ^ it would not have given effect to the devise even if the testator had expressly declared his intention in the will to give such lands, in case of a sale and subsequent repurchase of them by him, to the devisee, for the common law rule was not based upon any supposed intention in the testator. But this rule has been changed by sta^te, and after-acquired lands msay now be devised. Hence the alienation of devised realty does not now so effectually withdraw the estate from the operation of the will as to prevent a subse- quent re-acquisition of it from passing under the devise. Nothing short of a revocation of the will, or of the par- ticular gift, in some other legal way, will, under this 1 Taylor v. Taylor, 2 Nott & McC. 482 ; Eandall v. Beatty, 4 Stewt. (N. J.) 643. 2 See Kent, iv. 529-531 ; Browu v. Brown, 16 Barb. 569; Vaude- mark v. Vaudemark, 26 Barb. 416. 'MEANTIME BEING REVOCABLE.' 133 legislation, prevent the passing under the will of any estate, real or personal, which the testator has the power, at his death, to dispose of. Bat of course property disposed of by the testator, after the making of his will, is withdrawn from the oper- ation of the will and must remain so unless Contract to it is afterwards re-acquired by the testator.'^ ^^^'• It is only, however, to the extent which the subsequent disposition withdraws the property (real or personal) from the will that the will is revoked or fails to operate. Hence where a testator contracts to sell the estate given by his will, and dies without executing a conveyance, the will remains in force in respect of the legal interest in such estate, but no further; the legal estate is all that the testator has the power at his death to dispose of. The devisee, if it be a gift of land, takes only the legal estate therein, and the purchase-money becomes part of the testator's personal estate.^ Accordingly the devisee is entitled to the rent of the lands until the sale is completed.^ Eevocation, then, by alienation after the making of the will may be partial or total.* A simple instance or two of partial revocation may be given. ^ . , •^ ^ Partial revoca- Thus a testator, having devised lauds in fee, tion by aiieua- afterwards demises the same lands for a ^'°"' term of years. The lease in such a case revokes the 1 CoUup V. Smith, 89 Ya. 258. 2 Farrar v. Winterton, 5 Beav. 1. See Padfield v. Padfieltl, 72 HI. 322 ; Bell v. Hewitt, S4 Ind. 280 ; Anding v. Davis, 38 Miss. 574 ; Donohoe v. Lea, 1 Swan, 119. 8 Watts y. Watts, L. R. 17 Eq. 217. * Brown v. Thorudike, 15 Pick. 388 ; Wells v. Wells, 35 Miss. 638 ; Brush V. Brush, 11 Ohio, 287 ; Taggart v. Thompson, 14 Penn. St. 149 ; McNaughton v. McNaughton, 34 N. Y. 201. 134 THE LAW OF WILLS. devise pro tauto by withdrawing the devised interest from its operation; but the devisee still takes the inheri- tance, subject to the lease, and with it, of course, the rent reserved.^ So a testator, having devised lands in fee, conveys them to the use of himself for life, wath remainder to the use of his wife for life. This convey- ance revokes the devise pro tanto, while the reversion in fee, expectant upon the death of the testator's wife, passes to the devisee.^ Under statute giving effect to all devises or legacies of property which the testator has power to dispose of „ .J J .J at his death, it is plain that void convey- Void and void- ' ^ . *' able convey- ances made after the will have no effect upon it. Yet apart from such legislation the contrary would perhaps be true, on the ground of the inconsistency of the attempted conveyance with the prior gift by will. It was so held in England prior to the Wills Act of the present reign ; an example being where the failure of the conveyance arose from some want of ceremony essential to the instrument.^ If the subse- quent conveyance were only voidable, the case would be different, for if voidable at the election of the grantee, the testator would have no power over the estate, and if voidable at the election of the testator, he has not elected to avoid it. In either case, then, the gift by the will is revoked.* ^ Jarman, 132. 2 Id. ' In both the preceding examples it will be perceived that the conveyance is not only partial in its objecfc, but in its operation. It does not for a moment disturb the testator's seisin of or his estate in the inheritance, and tlierefore can have no revoking effect beyond the estate wliich it substantially alienates and vests in another person.' Id. 3 Walton V. Walton, 7 Jolms. Ch. 269 ; Jarman, 133. * Sed qu. if the conveyance were voidable by the testator for some reason, as fraud, not discovered until after his death. If then the con- veyance were set aside, would not the devisee take the interest devised 1 'MEANTIME BEING REVOCABLE.' 135 EXPRESS REVOCATION BY WILL, CODICIL, OR WRITING. A will or a codicil may operate as a revocation of a prior testamentary instrument by effect either of an express clause of revocation or of an inconsistent dis- position of the previously-devised property.^ That the testator did not, as a matter of fact, intend to revoke his former gift is immaterial; such intention should have been shown in the later revoking instrument.^ Express revocation, being a matter of language, should be examined to see whether it states an actual, present revocation, or only a design to revoke at some future time. The latter, until carried out by actual revocation, would avail nothing,^ even though in will or codicil; as where in a later will the testator says, ' 1 will revoke my former will, ' ^ or where the testator intimates his inten- tion to make some different disposition afterwards, from the one he is now making.^ The question whether the language amounts to a revocation is, however, one of intention ; ® the intention to revoke should be beyond surmise, and should not be extended any further than the plain language of revocation requires,'' that is, any 1 Jarman, 134 ; Gordon v. Whitlock, 92 Va. 723 ; Clieever v. North, 106 Mich. 390; Burns v. Travis, 117 Ind. 44; Bradish v. McClellan, 100 Penn. St. 607. 2 Wurzell V. Beckman, 52 Mich. 478. 8 Brown v. Thorndike, 15 Pick. 388; Rife's Appeal, 110 Penn. St. 232. * Jarman, 134. 6 Thomas v. Evans, 2 East, 488. There the will read, ' As to the rest of my real and personal estate, I intend to dispose of the same by a codicil to this my will, hereafter to be made.' This was held no revo- cation of anything in the will. 6 Gelbke v. Gelbke, 88 Ala. 427 ; Bradish v. McCleUan, 100 Penn. St. 607. T In re Freme's Contract, 1895, 2 Ch. 778, 783, Lindley, L. J. ; id. 256. 136 THE LAW OF WILLS. further than is necessary to give effect to the codici).^ The two instruments should be read together to discover the extent of the intended revocation, where there is any ground for doubt. - IMPLIED REVOCATION CT WILL OR CODICIL. One's last will does not necessarily revoke one's prior will or wills ; to be revocatory the last will, if it does Inconsistency ^ot expressly revoke those previously made, necessar.v. must be inconsistent with the prior will or wills. ^ A simple instance of the last-named kind of revocation may be seen in a case in which a testator devises a piece of land to A in one will, and afterwards devises the same piece of land to B. Where two parts of the same devise are seemingly inconsistent, the courts will endeavor to reconcile the parts by declaring that the devisees shall take concurrent!}- ; but where, as in the case just put, the inconsistency is between different wills, the courts are not so anxious to reconcile the two, and the last will is treated as revocatory.'* Still the case is one of intention, and the two wills are 1 Pendergast v. Tibbetts, 164 Mags. 270,272 ; Chapin r. Parker, 157 Mass. 63 ; Tildeu v. Tilden, 13 Gray, 103 ; Morley v. Rennoldson, 1895, 1 Ch. 449, 454, Liudley, L. J. ; Redfield v. Kedfield, 126 N. Y. 466; Viele V. Keeler, 129 N. Y. 190, 199; Kinkele v. Wilson, 151 N. Y. 269, 277. 2 Gray v. Sherman, 5 Allen, 198; Richardson v. Willis, 163 Mass. 130, 132 ; Pendergast ?;. Tibbetts. snpra; Morley r. Rennoldson, supra. 3 Cheever v. North, 106 Mich. 390 ; Gordon v. Whitlock, 92 Va. 723. * Jarman, 136. 'And the distinction seems to be reasonable ; for though it may be very unlikely that a testator should wholly change the object of the devise in the short interval between his passing from one part of tlie will to the other, there is no such improbahility that, in the longer lapse of time between the execution of two testamentary papers of different dates, such a change of purpose should have occurred.' Id. 'MEANTIME BEING REVOCABLE.' 137 to be reconciled if their language reasonably permits. Thus a gift to A of a particular residue in one will, fol- lowed by a codicil containing a gift of a general residue of the testator's estate to B, is not a case of inconsis- tency if the language is such that the two may embrace different property.^ Where, however, there is real inconsistency the last will in point of time — it makes no difference whether it is expressed to be the last will or not — ^ , Doubt as to must prevail. But if from lack of dates latest instru- or other evidence of time the court cannot decide which of the wills was executed last, both (or all) must be rejected, and the estate distributed under the intestacy laws. But that is a last escape out of diffi- culty, and will not be resorted to unless all other means fail. Even where the times of execution of the respec- tive inconsistent documents are known, the court will, if possible, adopt a construction which will give some effect to each, sacrificing the earlier so far only as it is clearly irreconcilable with the later.^ The inclination to such a construction as would pre- serve, wholly or partly, the contents of the prior will, however, exists only in two cases: (I) when ^ *' ^ ' Construction of the later is inadequate to dispose of the revoking whole property, so that the consequence of ^^^^ ^ rejecting the earlier one would be to produce partial 1 Inglefield v. Cotrhlan, 2 Coll. 247. 2 Gordon v. Whitlock, 92 Ya. 72.3; Teacle's E.state, 153 Penn. St. 219; Cheever v. North, 106 Mich. .390. 3 AHstin V. Oakes, 117 N. Y. 577; J.arman, 137. 'You are not to guess at the revocation, or to extend it further than the clear language of the revoking instrument requires you to do.' Lindley, L. J., in In re Freme's Contract, 1895, 2 Ch. 778, 783 ; id. 256. This was said of a revoking codicil, and must apply all the more to the subject of the text. 138 THE LAW or WILLS. intestacy; ^ or (2) where the later one is styled a codicil. The office of a codicil being to vary or add to and not wholly to supplant a prior will, such designation of the instrument seems to demand that some part of the will, whose existence it recognizes, should be sustained, if possible.^ If the later instrument is not called a codicil, and is adequate to carry the whole property contained in the first, it will be held to be a revocation.^ CODICIL, HOW FAR DISTURBING WILL. It is indeed an established rule of construction that the terms of a codicil must not disturb those of the will further than is absolutely necessary to give to them reasonable effect.* So strong indeed is this rule that an expressed intention in a codicil to change the will in one particular negatives presumptively any intention to change it elsewhere.^ Another rule that is to be inferred from what has been said is that where the will contains a clear and unambiguous disposition of property, real or personal, such gift is not to be considered as revoked by doubtful expressions in a codicil.® Still an intention to revoke, though loosely expressed, or expressed in terms capable in themselves of limited interpretation, must prevail.' 1 See Teacle's Estate, 153 Penn. St. 219, 223. 2 Jarman, 138, the whole paragraph. 8 Id. ; Henfrey v. Henfrey, 2 Curteis, 468 ; s. c. 6 Jur. 355. * Whelen's Estate, 1 75 Penn. St. 23 ; Grimball v. Patton, 70 Ala. 626 ; Buchanan v. Lloyd, 64 Md. 306; Crozier v. Bray, 120 N. Y. 366 ; Hallybnrton v. Carson, 86 N. C. 290 ; Reichard's Appeal, 116 Penn. St. 232; Rodgers v. Rodgers, 6 Ileisk. 489; Pendergast v. Tibbetts, 164 Mass. 270, 272 ; and cases cited ante, p. 136. 5 Quincy ?'. Rogers, 9 Cush. 291 ; Vaughan v. Bunch, 53 Miss. 513. 8 Johns Hopkins Univ. v. Pinckney, 55 Md. 365 ; Joiner v. Joiner, 2 Jones, Eq. 68 ; Jarmau, 145. ' Jarman, 146. ♦MEANTIME BEING REVOCABLE.' 139 mistake: conditional kevocation. Like the case of the destruction of a will by mistake, if a testator by codicil revokes a gift in his will, or in a previous codicil, basing the revocation upon the ground of the assumption of a particular fact, which assumption turns out to be untrue, the revocation does not take effect. The act is treated as conditional, depending upon a contingency which fails. ^ A testator having bequeathed to each of the two grandchildren of his late sister a certain sum, afterwards, by codicil, declared that he revoked the gifts to such grandchildren, ' they being all dead.' The fact was that they were living, and the court held that the gifts to them were not revoked. "-^ If the fact stated is plainly immaterial, the rule does not prevail. Thus where a bequest was revoked on the ground, as stated in a codicil, that the testator had ' given ' the person certain things, when in fact he had sold them to him, it was held that the revocation was not affected by the misstatement.^ The mistake must, it seems, appear in some statement in the will, and it should appear what would have been the testator's inten- tion but for the mistake.* Perhaps, too, the revocation will prevail where the testator, instead of making the particular fact itself the ground of revocation, makes his mere belief of it, or some advice he has received in the matter, the ground of his act ; ^ for the testator clearly 1 Giddings v. Giddings, 65 Conn. 149, 157; Mendiuhall's Appeal, 124 Penn. St. 387 ; Barclay v. Maskelyne, Johns'. 124 ; Allen v. Bewsey, 7 Ch. D. 453, 464. 2 Campbell v. French, 3 Yes. 321. ^ Mendinhall's Appeal, supra. * Gifford V. Dyer, 2 R. I. 99 ; Giddings v. Giddings, 65 Conn. 149, 157. 5 Skipwith V. Cabell, 19 Gratt. 758; Jarman, 147; Attorney-Gen. V. Lloyd, 3 Atk. 552; 8. c. 1 Ves. 32; Newton v. Newton, 12 Ir. Ch. Rep. 118. But see Thomas v. Howell, L. R. 18 Eq. 198, 209. 140 THE LAW OF WILLS. may, if he will, judge for himself of the truth or falsity, existence or non-existence, of the fact.^ CODICIL REVIVING EARLIER OF TWO WILLS. The later of two inconsistent wills, revokes, as we have seen, the earlier one, or the later may expressly Intermediate revoke the earlier. If, then, after such a ^'^^- state of things, the testator should execute a codicil, in which he should refer to and recognize the earlier of the two wills as his last will, or as his real will, or simply as his will, the earlier will would be revived, and the later one would be revoked so far as it was inconsistent with the prior one and the codicil."^ This would be true though the codicil made no reference to the later will, in terms of revocation of it. The tes- tator may, however, make the question a difficult one by some mistake in referring to the wills ; as, for instance, where in the codicil he sets up ' my last will, dated Jan. 1, 1890,' ^ which in fact is the date of the first will. The question will then be one of construction of the language used. In the case just referred to it was held that the testator really meant bis last will in time of execution, the date being a mistake. This doctrine, however, of setting up the first of two wills, applies to the case of earlier and later wills strictly. Codicil as part ^'^cl this important fact should be observed : of will. Every codicil is a constituent part of the will to which it relates, for in a general and comprehen- 1 Giddings v. Giddings, 65 Conn. 149, 157. 2 Crosbie v. Macdonal, 4 Ves. 610; Payne v. Trappes, 11 Jnr. 854 ; McLeod V. McNab, 1891, A. C. 471. Under statute there should be evidence of an intention to revive the earlier will ; a mere reference to it would not be enougli. Last case. 8 In re Ince, 2 P. D. 111. 'MEANTIME BEING REVOCABLE.' 141 sive sense a will consists of the aggregate contents of all the papers through which it is dispersed. Therefore where a testator in a codicil refers to and confirms a revoked will, it is not necessarily to be inferred that he means to set up the will (in the special, restricted sense) against and in revocation of any intermediate codicil or codicils which he may have added to it. He is rather to be considered as confirming the will with every codicil which may belong to it. Thus a testator, after making his will, executed several codicils to it, somewhat chang- ing the dispositions of the will; he then added another codicil, .referring to the will by date^ and changed one of the trustees and executors, in all other respects expressly confirming the will. It was held that this confirmation did not revive the parts of it which had been altered or revoked by the preceding codicils. Will and codicils stood, as the codicils left the case, apart from the one change made by the last codicil.^ This, too, is a matter of intention, to be found upon the face of the reference, and the testator may act in the matter as he will, revoking any or all of the prior codi- cils. Indeed a reference to the ' will ' by date, confirm- ing it, appears to be considered as setting up the will to the exclusion of the intermediate codicils; that is, revok- ing them, so far as they are inconsistent with the ' will,' as if they were themselves wills which had revoked the earlier instrument.^ This, however, comes near to re- laxing the close connection generally supposed to exist between will and codicil.^ 1 Crosbie v. Macdoual, 4 Ves. 610. The whole paragraph from Jarmau, 153. 2 Burton v. Newbery, 1 Cli. D. 234 8 The English editor of Jarman, 1 54, adds of this case : ' Crosbie v. Macdoual is treated as a case wliere the intermediate codicil was not re- voked, rather than as one where it was actively confirmed. According to this, the direct action of the latest codicil is upon the instrument 142 THE LAW OF WILLS. called the will, and on tliafc only. The codicil is left untouched, and operates by its own inherent force, if it has any ; and the ultimate result is, that the will is confirmed as modified by the codicil. If that is the correct view of the case, it will not govern one where the intermediate codicil has previously been revoked with the will to which it belonged, and where therefore it has no force except such, if any, as may be supplied by the subsequent codicil.' The reader should notice the further comments of the editor, which leave some doubt whether Burton v. Newbery gives sufficient force to Crosbie v. Mac- doual. See In re de la Saussaye, L. R. 3 P. & D. 42 ; Green v. Tribe, 9 Ch. D. 238. REPUBLICATION. 143 CHAPTER XIII. REPUBLICATION. A TESTATOR may expressly or constructively republish his will. He republishes the will expressly wheu he repeats the acts necessary for the execution t- *■ '' lixpress and of a will, with avowed design to republish.^ constrm tiye He republishes the will constructively when, ^*^^^ for some other purpose, stated or not, he makes a codicil to it. 2 Republication, express or constructive, cures defects in the execution of the will, gives to it validity when it was executed under undue influence or when Effg^j ^f repub- the testator was incompetent for any reason J'cation. to execute the will, provided, of course, that the repub- lishing was itself valid. It also has the effect to make the will speak from the date of the republication, so that, wholly apart from the statutes giving testamentary power over all lands which the testator dies seised of, a residuary gift of property in the will will carry property owned by the testator at the time of the republica- tion.^ 1 Love V. Johnson, 12 Ired. 355. 2 Jarman, 157. See, e. g.,In re Champion, 1893, 1 Ch. 101, 109; Giddings v. Giddings, 65 Conn. 149, 160; Hobart v. Hobart, 154 111. 610. 8 In re Champion, 1893, 1 Ch. 101, 109, 115. l-ki THE LAW OF WILLS. But to give to republication the effect of passing estates acquired between the date of the will and the T . . . „ , date of the republication, the words of the Limituig effect '■ ' of repubiica- will must be such as, if used at the date of the republication, would include the estate in question. If the language of the original will be such as, if used at the date of the republication, would not include the after-acquired estate; or if the act of repub- lication be accompanied by other provisions indicating that it was the testator's intent to limit the operation of the will as republished to the same estate which was given and would by law pass by the original will ; then in either case, notwithstanding such republication, the devise will not include the after-acquired estate.-^ There are other limitations upon the effect of repub- lication which should be noticed. That act will not invest with the force of gift expressions which did not have such force in the will, nor will it alter the con- struction of the will so as to cure defective expressions therein. It will not extend a specific gift to property not intended by such gift though answering to the descrip- tion by which such gift was made; it will not revive a gift to one who has already died in the lifetime of the testator, in favor of another person of the same name and relationship to the testator since born; it will not revive a legacy to a child which has been adeemed or satisfied by a later advancement to the legatee.^ To do such things there must be something more than republi- cation; an intention to do them must be expressed by the testator — expressed, too, in a way which the law will recognize, as by plain language in a codicil.^ 1 Haven v. Foster, 14 Pick. 541. 2 Tanton v. Keller, 167 111. 129, 143 ; Izard v. Hurst, 2 Freem. 224 ; Booker v. Allen, 2 Russ. & M. 270 ; Powys v. Mansfield, 3 Mylne & C. 376. 2 Jarman, 158, 159. REPUBLICATION. 145 Under the legislation which makes devises operate upon after-acquired estates, where the intent that it shall so operate is shown, the republication After-acquired of a will has lost much of its importance ^^^tates. in that particular. In other respects, the efficacy of a codicil as a republication remains unaffected. Thus a will executed under undue influence may afterwards be republished and confirmed by a codicil executed when the testator is free from the influence.^ A codicil duly executed will presumptively operate as a republication of the will to which it refers, whether the codicil is annexed to the will or not, or Republication whether it is or is not expressly confirm- ^>' codicil, atory of it; for every codicil is in law part of a man's will, whether the will is described in the codicil or not.'^ But if it appears on the face of the codicil that it was not the intention of the testator to republish, that inten- tion will prevail.^ 1 O'Neall v. Farr, 1 Rich. 80. 2 Brown v. Clark, 77 N. Y. 369. 8 Neff's Appeal, 48 Fenn. St. 501. 10 PART III. THE CONSTRUING OF A WILL. The Nature of a Will having been ascertained, the next subject of inquiry is^ how the will is, if need be, to be construed. CHAPTER XIV. CONSTRUCTION. RE3IARKS UPON THE SUBJECT: CLASSIFICATION. When the language of a will ^ is materially and legiti- mately affected by the context or other language of the instrument, or by its relation to external ^^^^^^ language facts, or when it is elliptical, occasion arises calls for con- . . . struction : for ascertaining, if possible, its meaning. limits of con- Ascertaining the meaning of language in ^'^'"'^'i°"' such cases is called construction; and to that business construction is limited. Words, phrases, or sentences (in a will) whose meaning appears upon their face, or only requires definition of the primary meaning, or trans- lation, cannot be made the subject of construction, even thoHgh the language be ungrammatically and awkwardly expressed; there must be question whether the language is to be taken in its primary sense to make a case for construction. If no such question is raised, the language must be taken in the sense which it bears upon its face.'^ Construction is the harmonizing of language drawn in question, or it is the resolving doubt into certainty ; the 1 The word ' will,' together with the word ' instrument ' following, must be understood to include all codicils and other testamentary documents. 2 ' If by the use of plain and unambiguous words ' a testator ' has made his meaning clear and certain, his will expounds itself, and all the court can do, or has power to do, is to give effect to his purposes.' Marshall v. Hadley, .50 N. J. Eq. 547, 551, Van Fleet, V. C. It mat- ters not that the restilt is nonsensical or absurd. Id. 150 THE LAW OF WILLS. essential object, indeed the only justification, of con- struction is the turning of uncertainty — of person, prop- erty, or other thing — into certainty. Nay, even doubt in regard to the meaning of language does not necessarily make a case for construction. Lan- j ^ ^ ^ guage may not be understood, it may even understood, or be wt/suuderstood, by the layman, when in may be legally fact or iu legal usage it has a perfectly defi- certain. ^^^^ primary meaning. Construction can- not be applied to such a thing, unless some doubt is thrown upon the primary meaning of the language. The- rule in Shelley's Case^ affords a familiar illustration. The language to which that rule applies might well be misunderstood by a layman, and yet the rule which declares the meaning of the language is not a rule of construction.'^ In legal usage, apart at least from stat- utory law, there is no doubt of the meaning of an estate to A for lite and after his death to his heirs ; the fact that a layman may misunderstand the language is no ground for saying that the language is to be construed, and 80 to receive a meaning dififerent from its primary one. The language of the courts is itself sometimes mis- leading in regard to the proper function of construction. n i [ j^ f Thus when the only real question is of the definition with primary meaning of a word or phrase — that construction. . . . ■ . , ,, . „ , is, in a case m which the meaning of the word is not affected by other words or by external facts — it is sometimes said that the word is ' construed ' to mean so-and-so. That is a misnomer and misleading; the case is merely one of definition.^ 1 1 Coke, 93, 104 a. 2 Jarman, 1177. 3 In fixing upon the secondary meaning of words, howerer, con- struction ends in definition. CONSTRUCTION. 151 A striking instance of the kind is found in what are called precatory trusts, where a testator, instead of using apt or unmistakable words of trust, entreats, suggests, or advises his devisee or legatee to dispose of the prop- erty, or some part of it, in a particular way stated iu the will. Now what the words used by the testator mean, where their meaning is not disclosed or affected by other words of the will — that is, whether ' entreaty, ' ' suggestion,' ' advice,' or the like imports obligation to do the thing — is purely a question of primary definition. If the courts have gone wrong iu such cases, as formerly they were apt to do, that is a case of bad definition, not a case of construction in the proper sense; there was nothing to ' construct.' The primary meaning of a word or phrase cannot be changed by calling definition construction.^ 1 It results that if the courts had never gone wrong in these cases of precatory trusts, there would not be much 'law ' upon the subject. A large part of the ' law ' is fouud iu the wrong meaning which the courts have given to the precatory words. If it were not for that, it would not be so necessary to consult books to see whether words of entreaty, advice, and the like amount to command, so as to impose a binding dutv. The tendency of the decisions until quite recent times was plainlv towards treating such words as obligatory, creating a trust. Massey v. Sherman, Ambl. 520; 1 Atk. 389; Malim v. Keigh- ley, 2 Yes. 3.33, 529 a; Prevost v. Clarke, 2 Madd. 458; Briggs v. Penny, 3 DeG. & S. 539 ('trusting that') ; Vv^arner v. Bates, 98 Mass. 274 {'in full confidence'); Knox v. Knox, 59 Wis. 172 ('having full confidence') ; Noe v. Kern, 93 Mo. 367 ('in full faith') ; Cox r. Wills, 49 N. J. Eq. 130, 573 (' in good faith believing ') ; and many other cases. See Eberhardt v. Perolin, 48 N. J. Eq. 592. But under authorities now current, the words are coming to be taken in their natural sense, thus removing the subject, so far as the doubts created by the older authorities have been removed, from tlie law. The true place for such questions, in a sound administration of the law, is the dictionary. It has come to be recognized that while ' I wish ' is enough for a mere gift by the testator, it is not enough for a gift in trust to a beneficiary. Bellas's Estate, 176 Penn. St. 122, 130; Boyle v. Boyle, Penn. St. 108, 152 THE LAW OF WILLS. Another case in which definition is easily confused with construction arises from words of which the popular, being the primary, sense is so broad that it is likely to cover more than testators in using them could fairly be thought to intend. In such cases the courts find it necessary to 113; Cressler's Estate, 161 Penn. St. 427, 433; Burt v. Herron, 66 Feun. St. 400. That distiuction should he well ohserved. The following, together with those just cited, are some of the late cases : Gift to the testator's wife ' in full confidence ' that she will do right in disposing of the property between his children in her lifetime or by will. This was considered as not creating any trust, and the wife accordingly took absolutely. In re Adams, 24 Ch. D. 199 ; s. c. 27 Ch. D. 394. To the testator's wife, ' feeling confident ' that she would act justly to their children by dividing the property equally between them. The wife took absolutely. Mussourie Bank ?>. Raynor, 7 A])p. Cas. 321. Still more pointedly : Gift of all the estate of the testatrix to her daughter, adding, ' my desire [is] that she allow to A an annuity of £25 during her life.' This was held insufficient to create a trust. In re Diggles, 39 Ch. D. 2.53. With equal point : Gift to nieces of a sum of money ' for their sole and separate use . . . and I wish them to be- queath the same equally between the families of my nephew A and my niece B, in such mode as they shall consider right.' This was held not to create a trust. In re Hamilton, 1895, 2 Ch. 370, the court refusing to follow Malim v. Keighley, 2 Yes. 333, 529 a, formerly considered a case of authority. Lindley, L. J., now said : ' We are bound to see fchat the beneficiaries are not made trustees unless intended to be made so bv their testator. ... If you come to the conclusion that no trust was intended, you say so, altliough previous judges have said the con- trary on some wills more or less similar.' See the same case in the court below, 1895, 1 Ch. 373. So In re Williams, 1897, 2 Ch. 12, 'in the fullest trust and confidence,' held not enough. To the same effect Durant v. Smith, 159 Mass. 229, where the word used was 'request'; Sturgis V. Paine, 146 Mass. 354; Sears v. Cunningham, 122 Mass. 538 ('I wish ') ; Taylor v. Brown, 88 Maine, 56; Clay v. Wood, 153 N. Y. 134. But some courts still resist the current. See the late New Jersey cases, su])ra. It is to be observed, however, that the difficulty in the way of treat- ing the gift as a gift in trust may be that the trust is not sufficiently definite, rather than that tlie precatory words are not sufficient. Com- pare Olliffe V. Wells, 130 Mass. 221 ; Smith v. Smith, 54 N. J. Eq. 1. CONSTRUCTION. 153 restrict the definition to limits which might justly meet the testator's intention; but as it is not the context or other language of the will, or external facts, that create the diili- culty, the case is one of definition only, not of construction. An illustration may be seen in the word ' relations ' or ' relatives.' In its popular sense this is a word of the widest range, embracing persons of every degree of con- sanguinity. Obviously, if the word were to be taken in such broad sense in the language of a will, it Avould cause the courts embarrassment; they would often ■* have to declare a gift to ' relations ' unexplained as void for uncertainty, a very undesirable thing in view of the fact that such gifts are common. The courts therefore nar- row the meaning; they restrict it, in the first place, to relations in wedlock,^ and then they as justly resort to the statutes of distribution in the case of gifts of per- sonalty, and perhaps of descent in the case of gifts of realty, as an indication of the class of persons entitled to take in intestacy, and decree the disposition accord- ingly, in the absence of explanation on the face of the will.^ The effect of this is, to establish a primary legal 1 Not always ; a person might bequeath liis property to his ' rela- tions,' having but two or three relations living. 2 In re Jodrell, 1891, A. C. 304, 305; In re Fish, 1894, 2 Ch. 83 ('niece ') ; In re Deakin, 1894, 3 Ch. 565. See Pastene v. Bonini, 166 Mass. 85 (' my wife '). But that probably agrees with the primary popular meaning. 3 Cox V. Wills, 49 N. J. Eq. 130, 573 ; A^nrrell v. Wendell, 20 N. H. 431 ; Drew v. Wakefield, 54 Maine, 291 ; Gallagher v. Crooks, 132 N. Y. 238, 343. See Elliot v. Fessenden, 83 Maine, 1 79 ; Cleaver v. Cleaver, 39 Wis. 96; Kimball v. Story, 108 Mass. 382; Horton v. Earle, 162 Mass. 448 (a brother-in-law not a ' relation '). ' Representatives ' may also mean distributees under the statutes. Bates, Petitioner, 159 Mass. 252, 258. But the word has been a troublesome one. See Jarman, 957-967. Husband and wife are not 'next of kin ' under the statutes. Piatt V. Mickle, 137 N. Y. 106. 154 THE LAW OF WILLS. meaning of the word, which accordingly may be the basis of construction whenever that meaning is drawn in question.^ Let it be clearly understood, then, that construction, when not dealing with ellipsis of intention, is concerned True function Only with language whose primary meaning of constiuctioa. jg drawn in question by the context or other related language or by external facts, and that the primary meaning of the words is the starting-point for construction in such cases. In cases of ellipsis of inten- tion, as distinguished from mere verbal ellipsis where the meaning is plain, construction in many cases sup- plies the omission ; but it is still plainly resolving uncer- tainty into certainty, and not meddling with language whose meaning is not drawn in question by other legiti- mate influence. Indeed here too the primary meaning of words may be drawn in question, as e. g. if a tes- tator should make A his ' residuary legatee,' without words of gift of the residue.^ c Construction works out its purpose (1) by interpreta- tion, or (2) by means of rules, or (3) by both methods „ , , , together. The legal theory of the difference Methods of con- '^ o j struction: the- bv which the first and second methods pro- oiy ereo . ^^^^ j^ ^j^j^ . The first method proceeds upon the ground that the primary sense of language of the will is drawn in question, but that the testator's intentiom is, taken altogether, intelligibl}' and completely expressed in 1 There are many other cases of definition which are loosely spoken of as construction. The word ' children ' is ' construed ' prima facie to denote only immediate offspring; it is 'construed' to exclude illegiti- mates. Tills is nothing but definition of the primary meaning, assum- ing that the word stands unaffected by anytliing within or without the will. To follow up such cases would be an endless pursuit; and a chapter on the subject would be only a dictionary. 2 See chapter xxiii., at end. CONSTRUCTION. 155 the language of the will, and therefore that the language needs only to be put together — constructed — properly, in other words, sensibly interpreted, to bring out the very intention of the testator. This is the primary method of construction.^ The second method ordinarily pro- ceeds upon the ground that the intention is not com- pletely or is not intelligibly expressed, — that there is an ellipsis of something material to the purpose of the testator, which may properly be supplied. To supply the ellipsis in such a way as, in most cases, to bring about a just result, rules of cpnstruction have been framed from time to time, as a preferable course to rejecting the disposition for uncertainty or leaving the case to the particular judge or jury to surmise at what the testator may have had in mind.^ The law, in other words, completes the idea which the testator left incomplete, in the cases in which it has been deemed advisable to complete it.^ This is the secondary method 1 Collier v. Walters, L. R. 17 Eq. 252 ; In re James, 146 N. Y. 78, 100. 2 Surmising is never allowable. In re Cleveland, 1893, 3 Ch. 244, 251 ; infra. 3 The use of these rules of construction is often explained in terms of presumptive intention ; it is said that they lead by (prima facie) pre- sumption to the intention the testator would have had, had his attention been sufficiently called to the case. But the explanation is fictitious. The testator had no intention in the matter, so far as the will indicates, and not only is nothing gained by supposing what his intention might have been, the explanation is dangerous, as implying the right of the courts to surmise at the testator's intention. It is better to saj- that tlie law supplies an omission in certain proper cases ; that, certainly, is the fact. In a case touching interest not disposed of by the testator, Keke- wich, J., says that he shall apply ' one of those technical rules invented by the court for the purpose of giving effect to wliat no doubt is in average instances the intention of the testator.' In re Inman, 1893, 3 Ch. 518, 520. The rules would in ' average instances ' lead to the in- tention of the testator if he had had any intention in the matter. 156 THE LAW OF WILLS. of construction, sometimes called the subordinate method.^ Primary construction may accordingly be said to be the clearing away of doubts in regard to the primary meaning of language, and then applying Construction ° „ , \ ,. -, , . defined in its that meaning,^ or the finding and applying two parts. ^j^g secondary meaning of language ; second- ary or subordinate construction, failing the primary, the supplying an omission consisting in some imperfectly or incompletely expressed intention of the testator. It should be remarked, however, that there are cases for rules of construction in which the object is to hold the testator to the legal effect of certain Repugnancy. , , , ^ , ,. . ,. , words already used, by eliminating subse- quent (or at least other) words inconsistent with the same.^ The rule of repugnancy, considered later, is a case of the kind. Perhaps this is not, in itself, con- struction at all, but it commonly involves construction in the proper sense, — so commonly that it is desirable to consider the subject under the head of construction. It follows from what has been said that in the cases in which the first method is employed there may or may Th th f ^^°^ ^" ^^^^ ^^ ^'^y actual uncertainty in the construction testator's meaning, while the second method always deals with real uncertaintj'. Gen- erally speaking, the second method is not to be resorted 1 Collier V. Walters, supra. See infra, p. 1.57, note. ^ It happens not infrequently that the courts find that doubts raised by the context, as to whetlier language is to be taken in its primary sense, are removed by construction, and the primary meaning after all found the one to be applied. See, e. g., Jackson v. Jac4, as stated by Jarman, 950. The case is given at some length as serving so well to illustrate the method of the law in simple interpretation. 3 Ralph V. Carrick, 1 1 Ch. D. 873, Cotton, L. J., reversing 5 Ch. D. 984. PRIMARY CONSTRUCTION: INTERPRETATION. 171 rule of coustructiou at the time, results itself iu a rule of coustructiou. This is uot very likely to be the case except with techuical words or with words haviug a defiuite primary meauiug; the rule speaks in terms of the use of some ' unambiguous ' word. But the tendency is towards working out rules of construction wherever practicable, with a view to the attainment, more and more, of certainty on the ' average,'^ in all common cases in which there is ground for doubt about the testator's meaning. Consider now the word ' children.' This is not a tech- nical word, as having any meaning in law which it has not in popular speech ; but it has a definite ,^, ., , '^ ^ *■ . ' Children. primary meaning, to wit, legitimate oft- spring in the first generation, including those en ventre sa mere.^ Hence this is the meaning to be given to the word unless the contest or other evidential influence indicates that it is not.^ An ' evidential ' influence against the primary mean- ing would be found where the testator knows that the person to Avhose ' children ' he makes a gift Grandchildren has no children, and knows that he has ^^ children. grandchildren. A testator gave his residuary estate to trustees upon trust to sell and divide the proceeds into 1 Kekewich, J., in In re Inman, 1893, 3 Ch. .518, 520; ante, p. 155, note. 2 Starling v. Price, 16 Ohio St. 29 ; Hall v. Hancock, 15 Pick. 255; Laird's Appeal, 85 Penn. St. 339; Crook c. Hill, 3 Ch. D. 773 ; s. c. L. R. 6 H. L. 265 ; In re Burrows, 1895, 2 Ch. 497, holding the same of 'issue,' and that too though the benefit is not for the unborn child. 3 Pugh V. Pugh, 105 ind. 552 ; Palmer v. Horn, 84 N. Y. 516; In re Schedel, 73 Cal. 594 ; Osgood v. Lovering, 33 Maine, 464 ; Thomson V. Ludington, 104 Mass. 193; Castner's Appeal, 88 Penn. St. 478; Low V. Harmony, 72 N. Y. 408; Willis v. Jenkins, 30 Ga. 167; Hopson v. Skipp, 7 Bush, 644. 172 THE LAW OF WILLS. six shares, and pay one of the shares * equally between all the children ' of his late sister A, living at his death, and he gave the other five-sixths to the children of five other persons deceased. A, as the testator knew, had no children living at the date of the will, but had two grandchildren, who survived the testator. The grand- children were held entitled to the gift to the ' children ' of A.^ ' Grandchildren ' is a secondary meaning of ' children,' and, to save the gift, was theiefore to be considered the testator's meaning.^ The only doubt that could arise arose from the gift to the children of the other persons deceased, in which case there were chil- dren to take. But the gift to the whole set of children was to them, not in one mass, as where a specified fund was given to all,^ but was broken up into shares, one- sixth being given to the children of A, another sixth to the children of B, and so on, each class being described. This took the case out of an established rule of construc- tion;* but it also resulted itself in discovering a minor rule, limiting the operation of the other.^ 1 In re Smith, 35 Ch. D. 558. 2 Rhoton v. Blevin, 99 Cal. 645. 3 Radcliffe v. Buckley, 10 Ves. 198. * 'If the testator on the face of the will,' said Kay, J., 'gives a legacy to the children of a deceased person, mentioning that person as being dead, and at the date of the will there are no children of that person, but there are grandchildren, then the court, on the principle ut res magis valeat, liolds that the gift takes effect in favor of the grand- children. On the other hand if the testator mentions the children of the late A B, the late C D, and the late E F, and some of these have left children, and one has left grandchildren only, then the court con- siders there is a difficulty in holding that the word " children," only once used, can have a different meaning where there are in one case children and in another case grandchildren. Again, if on the face of the will the testator shows an intention to use the word " children " in its normal and ordinary meaning, by himself having mentioned " grand- children " as well as " children," there again the court feels itself obliged to read the word " children " in its ordinary sense.' s Under the claims of illegitimate children to take as ' children,' PRIMARY CONSTRUCTION: INTERrRETATION. 173 Take for consideration, next, the word ' family.' This was formerly considered a word of uncertain meaning, unless aided by an explanatory context, and 'Family,' gifts to a man's ' family,' unexplained, have uncertain" accordingly been held void for uncertainty, meaning. Thus a testator in the eighteenth century devised lease- holds to A ' forever, hoping he will continue them in the family.' It was held that no trust was created because of the indefiniteness of the object ' family.' ^ A testator early in this century gave property, personal and real, by residuary bequest to his wife for life, and after her death, one half to go to his wife's ' family,' the other half to his ' brother and sister's family.' The testator at the date of the will had a brother and a sister, each of whom had children; there were children of another deceased sister; and the testator's wife had a brother who had two children. Both gifts were held void for uncertainty.^ Later a testatrix gave the residue of her effects to her daughters and their ' husbands and families.' The word ' families ' was held to be of uncertain mean- ing, and, under other facts, the whole expression, ' hus- bands and families' was rejected.'* But just as we have seen a tendency to work out rules of construction from words having a definite primary meaning, especially where they are techni- ^ p,,jj^ii^. . jj, cal terms in the law, so we may now notice relation to gifts , . , . of land. a tendency to find in words m common use, such as the word ' famil}^' some primary signification several important rules of construction have been developed about the word. These will be considered hereafter. Post, pp. 201-205. 1 Harland v. Trigg, 1 Bro. C. C' 142. Of course this was fatal even if ' hoping ' had been considered imperative, as it was not. 2 Doe V. Joinville, 3 East, 172. 8 Robinson v. Waddelow, 8 Sim. 134. The daughters accordingly took the residue absolutely. But the decision was never quite satis- factory. 1 Sim. N. S. 246. 174 THE LAW OF WILLS. rather than cast the word aside for uncertainty. That is the last thing to be done. The tendency in regard to the word ' family ' began to be seen first in cases in which the word was collocated with or related to land, in which cases the idea that it was of uncertain meaning was rejected; it was considered that it meant ' heir.' A tes- tator gave real estate to his mother and her heirs forever, in the fullest confidence that she would devise the prop- erty to his ' family.' It was held that a good trust was created; that ' family ' meant heir.^ This, however, merely shows the tendency towards cer- tainty. It is not true, and was not supposed to be true, that family meant ' heir ' primarily except in cases of gifts of realty; that is, it was the context which made it mean heir. And as a matter of fact, this view of the word was only a halting ground, or step, to another Further stage : and apparently general positiou. In several 'family,' cases the word came to be considered as meaning chil- dren, meaning ' children,' but generally with some aid, more or less, from the context,^ until finally the step was taken of treating it as primarily meaning children, and therefore requiring evidence, such as a context, pointing another way to divert it from that meaning.^ More significantly still, it has now been declared that ' every word which has more than one meaning has a primary meaning.' Such meaning should then be dili- 1 Wright V. Atkyns, 17 Ves. 255. The court was now ready to cast doubt upon Harlaud v. Trigg, supra. As to the trust, the case would not now be followed. See ante, pp. 151, 152, note. 2 See Burt v. Hellyar, L. R. 14 Eq. 160; Barnes v. Patch, 8 Ves. 604; St. John v. Dana, 66 Conn. 401, 405. 8 Pigg V. Clarke, 3 Ch. D. 672 ; Wood v. Wood, 3 Hare, 65 ; Snow V. Teed, L. Tl. 9 Eq. 622. But see Wood v. Wood, 63 Conn. 324, 327, which following the general dictionaries, makes the word, in the ordi- nary sense, include parents, children, and servants — the household. PRIMARY CONSTRUCTION: INTERPRETATION. 175 gently sought, and must prevail until it is shown not to be the meaning intended by the testator.-^ Such, at all events, is the result of English authority. "We may now consider cases in which the ^ , , ». , '' . Context affect- meaning of the word is thrown in doubt, so as ing word to see how the law works out its conclusion. '''"'.^• A testator bequeathed personalty to his wife, adding in a codicil addressed to her: ' Using your judgment when to dispose of it amongst your children when you can no longer enjoy it; but I should be unhapp}' if I thought any one of your fmnilij should be the better for what I feel confident you will so well direct the disposal of.' The testator having died shortly afterwards, leav- ing sons and daughters, one of the latter married, and his wife aged, and having no children except by her marriage with the testator, it was held that ' of 3'our family ' meant, not merely children, but ' of your blood,' that is, posterity.^ In another case a testatrix gave to her unmarried sister 1 Jessel, M. R., speaking of the word ' family,' in Pigg v. Clarke, supra, .says: 'In one sense it means the whole household, including servants and perha])s lodgers. In another it means everybody de- scended from a common stock, i. e., all l)lood relations ; and it may perhaps include the husbands and wives of such persons. ... In a third sense tiie word includes children only. Thus when a man speaks of his wife and family, he means his wife and children. Now every word which has more than one meaning has a primary meaning ; and if it has a primary meaning you want a context to find another. What then is the primary meaning of family? It is " cliildren " ; that is clear upon the authorities which have been cited, and independently of them I should have come to the same conclusion.' Further as to 'family ' see Townsend v. Townsend, 156 Mass. 454, 456, and cases cited. 2 Williams v. Williams, 1 Sim. N. S. 358. The court could not be- lieve tliat the testator intended to create a trust as wide as that, and accordingly held that there was no trust. The wife, therefore, took as if this clause had not been introduced. 176 THE LAW OF WILLS. property for life, aud, making her executrix, declared that slie desired her sister to bequeath ' to those of her own family what she has in her own power to dispose of that was mine.' The words ' of her own family ' were considered to mean kindred or relations; they did not mean children, as the sister was unmarried; they did not mean ' heir,' as the gift was of personalty.^ In perfect accord with the method of construction under consideration, words may be supplied as well as Supplying and rejected, where it is clear beyond reason- rejecting words, f^big ^jo^^bt what the omitted words should be.^ A testator devised to A and the heirs of his body, and if he should die, then to B. To the words ' if he should die ' the court had no difficulty in adding ' with- out issue. '^ It is no objection to supplying words that men may differ in regard to the particular words which will the more fitl}' supply the omission.* But they can be supplied only to carry out the intent of the testator as manifested in the will — not to create an intent,^ and not against a manifest intent to omit them.® Again, consistently with simple interpretation, words, aud even sentences, may be transposed, if necessary to Tr.nnsposing remove uncertainty. Thus where it is clear words. that language, otherwise senseless, or con- tradictory to other parts of the instrument, may be made 1 Crnwvs V. Colman, 9 Ves. 319. 2 Aulick V. Wallace, 12 Bush, 531 ; In re Miner, 14G N. Y. 121, 131 ; Starr v. Starr, 132 N. Y. 154, 158; Heald v. Heald, 56 Md. 301 ; Bos- ton Safe Deposit Co. v. Coffin, 152 Mass. 95, 98; Greenough v. Cass, 64 N. H. 326 ; Patterson v. Read, 42 N. J. Eq. 146 ; Howerton v. Hen- derson, 88 N. C. 597. 3 Anonymous, 1 And. 3.3. ^ Aulick V. Wallace, supra; Kichols v. BosweU, 103 Mo. 15L 5 Hill V. Downes, 125 Mass. 509, 512. 6 Caldwell V. Willis, 57 j\Iiss. 555. PRIMARY CONSTRUCTION: INTERPRETATION. 177 consistent with the context by transposition, the courts should make the needed change.^ Accordingly the order or position of bequests or devises has sometimes been disregarded in order to prevent the failure of the will in such particulars.^ Finally, it is sometimes justifiable under simple inter- pretation to change the words of the instrument, in order to remove uncertainty. This may be done changing when (1) it is plain that the testator has ^^""'"'i^- used the wrong word or phrase to express his intention otherwise shown by the will, provided, (2), it is plain what the right word or phrase is. The second part of the rule is as necessary as the first. ^ Accordingly ' her' has been read ' their ' ; ^ ' heirs ' has been read ' children,' ^ — and 'issue,'® and 'next of kin';'' 'children' con- versely has been read ' issue, ' * and ' grandchildren ' ; ^ ' if he should die ' has been read ' when he should die ' ; ^° 1 Boston Safe Deposit Co. v. Coffin, 152 Mass. 95, 98 ; In re Miner, 146 N. Y. 121, 1.31 ; Woodruff v. Marsh, 63 Conn. 125 ; Davis v. Calla- han, 78 Maine, 313; Patchen v. Patchen, 121 N. Y. 164; Merkel's Appeal, 109 Penn. St. 235 ; Hawes v. Foote, 64 Texas, 21 ; Graham v. Graham, 43 W. Va. 36. 2 Davis V. Callahan, supra. 3 Taylor v, Richardson, 2 Drew. 16. See also Gray v. Pearson, 7 H. L. Cas. 61 ; Patchen v. Patchen, 121 N. Y. 432; In re Wells, 113 N. Y. 379 ; Hawes v. Foote, 64 Texas, 22 ; East v. Garrett, 84 Va. 523; Ellis v. Throckmorton, 52 N. J. Eq. 792, 798. * Horwitz V. Norris, 60 Penn. St. 561. 5 Bowers v. Porter, 4 Pick. 198. 6 Gifford V. Choate, 100 Mass. 343, 345 ; Dawson v. Schaefer, 52 N. J. 1 Eq. 341, 345. ^ Reen v. Wagner, 51 N. J. Eq. 1. 8 Castner's Appeal, 88 Penn. St. 478 ; Clifford v. Koe, 5 App. Cas. 427. ' Osgood V. Lovering, 33 Maine, 464. 10 Smart v. Clark, 3 Russ. 465. 12 178 THE LAW OF WILLS. * may leave ' has been read ' may have ' ; ^ ' leaving ' chil- dren has been read ' having had ' children; - the singular number has been read plural, and vice versa ; ^ ' or ' has been read ' and ', and ' and ' has been read ' or ' ; * ' sur- vivor ' has been read ' other ' ; ^ these among a multitude of cases. But words are never to be changed if they are capable of an intelligible meaning;*' if intelligible they must be accepted, though the court may well suspect that the testator has not used the right language.'' His words, when plain, are the best evidence of his intention. CLAUSES. Thus far of interpreting particular words, by context or other language upon the face of the will. The exam- The same luation of the authorities might now be pur- method as in siiQ^ into the interpretation of clauses, in interpretmg J- ' words. the same manner; but little, if anything, would be gained. It would be found that the method is 1 Du Bois V. Ray, 35 N. Y. 162. 2 Male V. Williams, 48 N. J. Eq. 33, 39 ; Du Bois v. Ray, 35 N. Y. 162; White v. Eight, 12 Ch. D. 751. 3 Low V. Low, 77 Maine, 37 ; Roe v. Vingut, 117 N. Y. 204. * Roe V. Vingut, supra ; Shinier v. Shimer, 50 N. J. Eq. 300 ; Cody V. Bunn, 46 N. J. Eq. 131 ; and many other cases. In most of the cases in which ' and ' has been read ' or,' this has been done to favor the vesting of a legacy, not to defeat a prior vested gift. If the latter result would follow, the word should not be read ' or ' unless there is the plainest necessity. See Malcolm v. Malcolm, 21 Beav. 225 ; Day r. Day, Kay, 703. Further see Jarman, 481, 490; O'Rourke v. Beard, 151 Mass. 9, 10 ; Conway's Estate, 181 Penn. St. 156 ; Gilraor's Estate, 154 Penn. St. 523 ; Crews v. Hatcher, 91 Va. 378. 5 Ashhurst v. Potter, 53 N. J. Eq. 608, 611 ; Waite v. Littlewood, L. R. 8 Ch. 70; Smith v. Osborne, 6 H. L. Cas. 375. 6 Seibert v. Wise, 70 Penn. St. 147 ; Cody v. Bunn, 46 N. J. Eq. 121. 7 Taylor v. Meador, 66 Ga. 230. PRIMARY CONSTRUCTION: mTERPRETATION. 179 the same as in the ease of particular words ; harmoniz- ing or clearing up apparently conflicting or doubtful lan- guage by calling in aid other language of the will and applying to the question good sense and sound judgment, with full determination to accomplish the purpose rather than fail — that is the method first and last, for all cases, in construction by interpretation. 180 THE LAW OF WILLS. CHAPTER XVI. SECONDARY CONSTRUCTION: WORDS. DIVISION OF RULES. The secondary method of construction, which we have now reached, seeks in most cases, as we have seen, to supply an ellipsis,^ consisting in some imperfectly ex- pressed intention of the testator; working out its result by means of rules framed for the purpose, upon the theory that it is better to save a gift by rational methods than to treat it as void merely because the testator has not fully expressed himself. These rules may be divided into two classes: the first consisting of rules relating to the meaning of particular words; the second, of rules relating to the meaning or existence of whole clauses. The division, however, must not be taken to be a hard and fast one; for the second one obviously must often turn upon the meaning of particular words. Still the division is substantial and important. First, then, of rules of construction relating to the meaning of particular words. The case for consideration is this: Doubt, by other language of the will, or by external facts, is thrown upon ^, . the primary meaning of the word or words The question l j o for considera- in question, which doubt, not being removed by the language of the will, is to be re- moved, if at all, by some rule of construction. ^ The only important exception is repugnancy, where there is a cutting off instead of supplying an ellipsis. See chapter. SECONDARY CONSTRUCTION: WORDS. 181 For the purposes of the inquiry thus suggested, words may, in the first place, be considered as sociate or uon- sociate. SOCIATE words: SUBJECT OF GIFT. Let us consider, first, sociate words, or words in col- location, denoting some subject of gift in an enumera- tion of things, and assume that the primary companion- meaning of them is drawn in question. How ship of words. is the doubt to be removed by rules of construction? The very fact of collocation — the companionship of the words — furnishes an answer. A rule of construction is applicable, if nothing stands in the way, which may be stated thus : — A word is known by the company it keeps; ' noscitur asociis.' That rule imports that the doubtful word is associated with other words of definite, or at least more definite, meaning, to which it is attracted by a sort of affinity such as to justify looking to those words in aid of the meaning of the doubtful one.^ It is not enough that the accompanying words are more definite than the one in question; an indefinite word cannot be defined by a word which is only more definite, or rather less indefinite, especially if the latter is not used with intent to define the former. But if, added to the fact that the accompanying words have a definite meaning, they are of affinity with the doubtful one, the doubt may often be resolved; if nothing interferes, it may always be re- solved. It is not necessary that all the accompanying words should be definite; enough that such as may be considered dominating are definite.^ 1 See In re Lee, 141 N. Y. 58, 63, 64 ; Lippincott's Estate, 173 Penn. St. 368 ; Ennis v. Smith, 14 How. 400. - The principle, or something like it, may apply to sets of phrases of gift. Thus in a case of the kind in which annuities were given, 182 THE LAW OF WILLS. We may take, for illustration, a word towards whicb the attitude of the courts has undergone some change, Illustration in to wit, the word ' estate. ' This word was diang'eTf^*^^ ' formerly treated as in itself a word of uncer- meaning. tain meaning, but it appears now to have passed the stage of doubt; it is now certainly to be taken to have, primarily, a definite meaning, the mean- ing of property in a comprehensive sense, which makes it embrace realty. This takes it out of question, unless the primary meaning is b}^ the context or elsewhere over- turned and the real meaning put in doubt. Take, then, such a common expression in wills as ' I give my estate and effects ' to so-and-so, the testator Removing having both land and goods, and assume nieTnin'^of ° ^^^^ question is made, as it might well be, 'estate.' by ^^e collocation of words, whether the word ' estate ' embraces land ; can the uncertainty be removed by applying the rule concerning the companion- ship of words? The test will be worked out thus: ' Effects ' ordinarily, that is, primarily, has the definite meaning of personalty' ; further, it has an affinity for ' estate,' as is shown by the fact that the words, if not strictly kindred, as the}' are not, are usually found together, as if by attraction — they are drawn to each other. The result, then, is that the rule may be applied, assuming of course that there is nothing else in the case to interfere. But how is the rule to be applied to the case? It is and the question was Mhether the annuitants were entitled to the corpus of property wliich was to produce the annuities, Lord Justice Smith said, by way of distinguishing another aase : ' First of all, all the annuitants in this will are put in a bunch, and some of them are, clearly to demonstration, not intended by the testator to take more than an annuity for life.' In re Morgan, 1893, 3 Ch. 222, 232. SECONDARY CONSTRUCTION: WORDS. 183 not to be taken as meaning that the doubtful word must have the same or nearly the same meaning as the accom- panying words, though sometimes it comes to that. The rule only means that a method of interpretation is found applicable to the case. The word in doubt may by the rule be considered to have a contrary meaning quite as justly as a kindred meaning to the companion words; there is an affinity of contrast as well as of kindred in words. ^ Such is the case here. Obviously ' estate ' here is not ejusdem generis with ' effects; ' it does not mean personalty — that meaning would reduce it to silence;'^ hence, if the rule is to be applied, it must mean realty. The rule noscitur a sociis, as we thus see, applies whether the words in company are to be taken as kin- dred or as contrasting. But how is one to Rule applies know whether they are to be taken the one ^^g kindred or way or the other? The first of a couplet or contrasting, other set of words is, from a natural tendency of thought, apt to be the most important one; it is seldom less important than the word or words following. A land- owner thinks of his land before thinking of the goods upon his land ; hence he speaks of his ' estate and effects.' On the other hand, if a man speaks simply of his ' effects and estate,' he emphasizes his effects, and ' estate ' is presumably a secondary and subordinate idea; it is not land (according to the old authorities), but per- sonalty, ' and estate ' being a sort of general expression, or expletive, completing the idea expressed in ' effects. ' The case then appears to come to this: If the first of the words in company is the one in question, and the ^ E. g., real and personal estate ; lands and goods ; vested and con- tingent estates ; devise and legacy ; testacy and intestacy ; capital and income. 2 Every word mnst have a meaning if possible. Ante, p. 178. 184 THE LAW OF WILLS. second clearly denotes personalty, the words are con- trasting, and the first means realty. If the second of the words in company is the one in question, and the first plainly means personalty, the words are kindred and the second means personalty. We have for convenience spoken of words in couplets, but the case will be no different where three or four or more words are used together; the first one will generally be the key-note. But all this assumes that there is nothing else in the case, that is, nothing to interfere with the application Effect of con- ot the rule concerning accompanying words. ^^^^' The context may put the rule in a new light, or put it aside entirely. In the example first given ('estate and effects') estate means land; there is noth- ing in the case to prevent the application of the rule. But if the testator has just been disposing of personalty alone, and then speaks of his ' estate and effects,' it may be and formerly was considered that the dominating thought in his mind still was of the personal estate of which he was possessed. But in reality this is analogous to what has already been said. The first idea is thought to be the chief one; as that was an idea of personalty, what followed would not be apt to be of realty. While if his first idea had been of realty, the following gift of his ' estate and effects ' might well be considered a gift of realty and personalty. If, however, the testator had already spoken of both realty and personal tj', then ordinarily neither idea of property is dominant, and hence this prior thought could not have influenced him in using the word ' estate ' in company with ' effects.' It might well have been otherwise if ' estate' had been alone; then, follow- ing ' realty and personalty,' it should by attraction of meaning be taken ejusdem generis, and hence mean land SECONDARY CONSTRUCTION: WORDS. 185 and goods, if there were such property to which the word could be applied.^ In the cases of this and the preced- ing paragraph the rule noscitur a sociis appears, then, in a new light. We have now explained the meaning of the rule that a word is known by the company it keeps ; the first word or thought is ordinarily the dominating one Summary. — its meaning is attracted as kindred to the doubtful word or thought following, where such dominat- ing word or thought itself is not the doubtful one. If the first word is the doubtful one^ its meaning is one of contrast to what follows, where otherwise it would be reduced to silence. These remarks must themselves now be brought to the test of the authorities. As before, the word ' estate ' may be taken for consideration. A testator devised all his ' estate, goods, and chattels ' ; the question was whether ' estate ' carried realty. The answer, according to the foregoing remarks, illustrations ought to have been in the affirmative, assum- considered. ing that there was nothing else in the will to affect the question. ' Estate ' is the first, and therefore dominat- ing word, and is the doubtful one. To make it mean personalty would be to reduce it (from its dominating place) to silence ; it should therefore mean realty. The court held that the word would not pass lands where there had been no mention of land before ; contra where land had been given in some previous part of the will.'-^ But the case is opposed even to early authority, as will now be seen. A testator devised lands, including a forfeited mort- ^ Compare with these remarks cases of gift to residuary legatees, without defining the estate. Tost, p. 320. 2 Cliffe V. Gibbons, 2 Ld. Raym. 1326. 186 THE LAW OF WILLS. gage in fee, to various persons, and gave legacies to others ; then he gave all the rest of his ' goods, chattels, leases, estates^ mortgages^ debts, ready money, plate, and other goods ' to his wife. The question was whether ' estates ' and ' mortgages ' passed fee-simple lands. Without deciding the point, the judges were of opinion that they did not have that effect, but passed only estates and mortgages for years, of which kind of property also the testator was owner. ^ This is plainly within one of the remarks above made (' If, however, the testator had already spoken of both realty and personalty,' &c.). Having just spoken both of realty and personalty, neither idea influenced the words ' estates ' and ' mortgages ' in their association with ' goods, chattels,' &c., and hence neither has anything to do with the question. Then we have nothing but a plain case for the application of the rule; the words ' goods ' and ' chattels ' are the first words used ; they are therefore dominating, and being certain they carry over by attraction their meaning to the words in question. A testator having given by his will both realty and personalty, concluded thus: 'I order the lease of my house, with all the furniture ... to be sold, and all the rest and residue to be divided among ' certain persons named, share and share alike. The testator having by the will devised his interest in certain houses for the life of the devisee, it was now made a question whether the reversion in the houses had not passed under the words ' all the rest and residue. ' But the court held that the reversion did not pass; nothing but personalty was intended.^ The case falls within the same remark, that if the testator has already disposed of both realty and 1 Wilkinson v. Merryland, Cro. Car. 447, 449 ; Sir W. Jones, 380. 2 Bibb V. Penoyre, 11 East, IGO. SECONDARY CONSTRUCTION: WORDS. 187 personalty, neither idea of property is dominant, and such previous part of the case may accordingly be left out of the question. Then the rule remains to be applied simpliciter; personalty is the dominating thought; per- sonalty alone is meant by the words in question. A testator bequeathed legacies only, and then said : ' All the rest and residue of my estate and chattels ... I give to my wife. ' It was held that the word ' estate ' did not pass land ; ' for in the first part of the will the testator having given only legacies, and not lands, by the residue of his "estate " must be intended estate of the same nature as that before' given. ^ The preceding gifts were gifts of personalty, and of that only; hence personalty was the dominating thought, and being certain was attracted to ' estate. ' ^ In another case, a testator gave to his sister all his ' stock in trade, household goods, wearing apparel, ready money, securities for money, and every other thing, my property, of whatever nature or kind soever.' It was held that land did not pass.^ The key-note was struck in the first words, which were cer- tain; 'every other thing, my property' accordingly, meant personalty, by attraction of meaning.^ 1 Marchant v. Twisden, Gilb. Eq. Cas. 30; Jarman, 671. 2 Words, however, have been left out which might well have caused a contrary decision. In reality it was not a case for the rule of noscitur a sociis. 2 Doe V. Rout, 7 Taunt. 79. 'It deserves notice that in the three last cases [Cliffe v. Gibbons, Marchant v. Twisden, and Doe v. Rent], in which the words " estate " and " property " were confined to personal estate, in consequence of the societij in which they were found, there was no preceding devise or mention of real estate ; a circumstance which, thouf!;h not conclusive, was in each instance adverted to, and has generally been considered as having weight in the exclusion of real estate, by demonstrating that the testator had not property of that species in his contemplation when he made his will.' Jarman, 672. * But see infra, p. 189. 188 THE LAW OF WILLS. But as has already been intimated, the context may entirely put aside the rule noscitur a soeiis. Thus while Context put- ^^® ^°^'^ ' ^^^^^^ ' followed by ' and effects,' ting aside tiie with nothing else relating to the case, means rule altogether. ,, ., , ^ ,, -, , realty, it may be followed by words of defini- tion, explanation, or restriction. The rule of accom- panying words is plainly excluded in such a case, so far as the word defined is concerned. Thus a testator de- vised ' all those my freehold lauds . . . now in the occupation of A, and all other the rest and residue and remainder of my estate, consisting in ready money, plate, jewels, leases, judgments, mortgages, or in anything whatsoever or wheresoever. It was held that the word ' estate ' did not carry land.^ In another case the testator said: 'I give all the remainder of my property whatever and wheresoever ' to A, B, and C, ' to be equally divided between them ... all my goods, stock, bills, bonds, book- debts, and securities in the Witham Drainage, in L., and funded property.' It was held that realty did not pass.^ Again, an adverse thought may be so plainly expressed that it cannot be overlooked, — a thought, that is to say, inconsistent with the idea that ' estate ' is to be taken in the sense of the words accompanying it. Thus if a tes- tator were to say, ' I give all my goods and effects, and, furthermore, all my estate whatsoever,' it would be diffi- cult, even under the old authorities, to say that realty, if the testator had any, was not in his mind. The courts mtjst give a meaning to every word, if possible. The same result may come about by the existence of some expression or provision well removed from the word ^ Timewell v. Perkius, 2 Atk. 102. The case goes further than is necessary to illustrate the point in the text, if it does not go too far, in view of the words of the last clause, ' or in anything whatsoever or wheresoever.' See infra. * Koe V. Yeud, 2 Bos. & P. N. K. 214. SECONDARY CONSTRUCTION: WORDS. 189 ' estate ' ; accompanying words of personalty thus losing the eit'ect which otherwise they might have. Thus after declaring his purpose to dispose of all his property, and after several devises, a testator gave ' all the rest and residue of my money, goods, chattels, and estate what- soever.' It was held that laud passed.^ This was put upon tlie ground that by the words ' goods ' and ' chat- tels ' the testator had comprehended all his personalty, so that the words ' and estate whatsoever,' to have any meaning at all, must mean his realty.^ But in view of the other authorities above stated, this was doubtful doc- trine; if there were nothing but the residuary clause, it would seem that the rule of noscitur a sociis would apply, and the dominating thought being of personalty, personalty would be meant by the doubtful word. It would seem that a better ground in former times for the ruling would be that the testator had previously in the will expressed his intention to dispose of all his prop- erty, and had actually made several devises. Perhaps, too, in cases like the one just stated, the words ' whatsoever,' ' wheresoever,' and the like, in such expressions as ' estate whatsoever,' ' and all importar.ce of estate of what nature or kind soever,' ' and certain words. all property whatsoever and wheresoever, ' ' and all other estate,' deserved more attention than they sometimes received. So it would probably be thought now. Such words are very comprehensive, if taken in their natural sense, and they might well exclude the rule of noscitur a sociis.^ But the subject need not be further pursued. 1 Tilley v. Simpson, 2 T. R. 659, note, Lord Hardwicke. 2 To the same effect, Jongsma v. Jongsma, 1 Cox, 362; Timewell V. Perkins, 2 Atk. 102, supra ; Doe v. Evans, 9 Ad. & E. 720. 3 See Edwards v. Barnes, 2 Bing. N. C. 2.52 ; Doe v. Lainclibury, 11 East, 290; Campbell v. Prescott, 15 Ves. 503 ; Tanner r. Jlorse, 3 P. Wms. 295 ; Elemming i\ Barrows, 1 Russ. 276 ; Fisher v. Hepburn, 190 THE LAW OF WILLS. As has already been stated, the modern authorities are considered to have set the current in favor of the rule that lands ■will pass under words naturally capable of comprehending them, notwithstanding their association with terms applicable to personalty only.^ The word ' estate ' or ' property ' thus is presumptively taken out of the rule noscitur a sociis, on the question whether it means realty or personalty in association with words mean- ing personalty; presumptively it still embraces realty. In other respects the rule may still be applicable to it. The definition which makes the word embrace realty may, indeed, be overcome by the special or peculiar collo- Deiinition of cation of words ; but the effect of the more 'estate 'as modem authorities is that the evidence of embracing • • j? i realty, how intention from the accompanying words overcome. must be clear — much clearer than under the older authorities. The term has in recent times steadily been gaining firmness of meaning.^ Mere asso- ciation of words is not enough to affect the case. o 14 Beav. 627 ; Smyth v. Smyth, 8 Ch. D. 561 ; Hall v. Hall, 1892, 2 Ch. 361, s. c. 1891, 3 Ch. 389, on the word 'effects,' ' wheresoever situ- ate,' in a ' devise,' passing land. 1 Jarman, 682, citing Midland Ey. Co. v. Oswin, 1 Colly. 74 ; O'Toole V. Browne, 3 El. & B. 572 ; Paterson v. Huddart, 17 Beav. 210 ; In re Greenwich Hospital, 20 Beav. 458 ; and other cases. ' The old rule is in fact reversed ; for it is now settled that words such as ' property ' and ' estate,' capable of including real with personal estate, will not he deprived of their full force without evidence that they were intended to be used in a more confined sense, whereas formerly the burden of proof was on the other side.' Id. 2 The following American cases may be consulted with profit Jackson v. Housel, 17 Johns. 281 ; Hurdle v. Outlaw, 2 Jones, Eq. 75 Hunt V. Hunt, 4 Gray, 190, 193 ; Howland r. Howland, 100 JIass. 222 Laing /,-. Barbour, 119 Mass. 523, 525 ; Smith v. Smith, 17 Gratt. 276 Korn V. Cutler, 26 Conn. 4. On the collocation of the word ' estate ' or ' property ' with executor- ship, see Jarman, 683-686 j In re Camerou, 26 Ch. D. 19. SECONDAEY CONSTRUCTION: WORDS. 191 NON-SOCIATE WORDS: OBJECT OF GIFT. Having considered sociate words of doubtful mean- ing, it remains to consider non-sociate words. Sociate words were found to be words relating to the what are non- subject of gift, i. e., some kind of property; sociate words, non-sociate words, of a corresponding kind, relate to the object of the gift, i. e., the devisee or legatee or some one described as in some relation to him.^ Has the law furnished any means of resolving doubt in the meaning to be given to such non-sociate words ? To some extent it has ; as before, in the wa}^ of rules of construction. There are, first, certain words to which the law has assigned a technical meaning, that is, a meaning differ- ent from the popular meaning; and there Technical are other words which, having various mean- words, ings, have one which is primary. ^ Such words are to be taken presumptively in their technical or primary sense. ^ Thus ' heir ' in a gift to an ' heir ' ^ means, prima facie, the person upon whom real estate would devolve in case of intestacy.^ But this meaning may be thrown into doubt 1 Devisees or legatees may be associated, that is, may take together ; but between one devisee or legatee and another, the words of designa- tion must ordinarily be dissociate. Objects are sometimes associated, as uncles and aunts, nephews and nieces ; but the association can seldom help the meaning. 2 Teclmical words seldom appear in an enumeration of the subjects of a gift ; if they should, the text would apply to them. 3 Quarm v. Quarm, 1891, 1 Q. B. 184, 186, 187. ■* But presumptively, of course, 'heirs' is a word of limitation, not of purchase. McCrea's Estate, 180 Penn. St. 81; In re Allen, 151 N. Y. 243, 248 ; Bryson v. Holbrook, 1 59 Mass. 280 ; Johnson v. Whiton, id. 424. And this is true of personalty as well as of realty. AVood v. Seaver, 158 Mass. 411. 5 Lawrence v. Crane, 158 Mass. 392, 393. See Olney v. Lovering, 167 Mass. 446, 448 ; Fabens v. Fabens, 141 Mass. 395. 192 THE LAW OF WILLS. by the context or by external facts; occasion then arises for special aid from construction.^ Three rules may be noticed, the application of one or other of which will be of service.^ First, an intention Three rules of directly expressed, or to be gathered from construction. ^j^g language used, will prevail over any tech- nical meaning attached to the word, unless that intention is opposed to some absolute rule of law.^ Secondly, where an intention appears to make a gift such as the law permits, and a technical term is used the intended mean- ing of which is not explained by any language of the will, the technical meaning will be applied, whether the result be to annul the gift or to enlarge or cut down the word as distinguished from giving it some secondary meaning.* Thirdly, as a corollary to these two rules, it appears to be generally true that when a word is used in a similar connection more than once, it is to receive the same con- struction in each case ; ^ with this exception : A word hav- ing a technical meaning in law, which it loses by reason of the context of the clause containing it, if used again in another distinct clause, in reference to a different 1 In re Moore, 152 N. Y. 602 ; Montignani v. Blade, 145 N. Y. Ill, 122; Dawson v. Schaefer, 52 N.J. Eq. 341, .345; McCrea's Estate, 180 Penn. St. 81. 2 From a note by the present writer, in Jarman, 905. 8 Sears v. Russell, 8 Gray, 86, 94 ; Knowlton v. Sanderson, 141 Mass. 323 ; Morton v. Barrett, 22 Maine, 257 ; Bennett v. Evans, 26 Ohio St. 409 ; Smith v. Schultz, 68 N. Y. 41. * Sears v. Russell, supra; Rand v. Sanger, 115 Mass. 124 ; Rand u. Butler, 48 Conn. 293 ; Thurber v. Chambers, 66 N. Y. 42 ; Lawton v. Corlies, 127 N. Y. 100; Richardson v. Martin, 55 N. H. 45 ; Reiuders V. Koppelman, 68 Mo. 482; Quarm v. Quarm, 1891, 1 Q. B. 184, 186, 187. 5 See Turner v. Balfour, 62 Conn. 89 ; Wood v. Wood, 63 Conn. 324. SECONDARY CONSTRUCTION: WORDS. 193 subject, without such explanatory context, must receive in the latter clause its technical meaning.^ But it does not always clear the way of difficulty to state the rules which govern a case ; the question often remains how the rules are to be applied to the partic- ular question, or which of the rules is applicable to it. When, for instance, — to return to the fii'st of the rules above stated, — has the testator, by the context attached to the technical word a meaning at variance with its technical meaning? No rule can be laid down for all cases. One or two rules have been established with regard to the word ' heirs.' When that word, as used by the testator, is used with evident reference to a set of children elsewhere mentioned as a whole, or elsewhere described individually, the word is to be treated as used merely for convenience, or to avoid repetition, and is to be understood in the sense of that for which, accordingly, it stands.^ The second rule, which results in annulling or cutting down or modifying a gift, by reason of the failure of the testator to provide some legal means for interpreting the technical word in a secondary sense, is illustrated by the case of a gift to the ' heirs ' of a living person, but not indicated by the will to be living. Now there can be no heir of a living person, and for this technical reason the gift fails. ^ But this defeats a perfectly legit- imate intention; and hence when any indication, how- ever slight, can be found in the will that the testator 1 Lloyd V. Rambo, 35 Ala. 709 ; State Bank v. Ewing, 17 Tnd. 68; Ralph V. Carrick, 11 Ch. D. 873, 882-884 (doubting Sibley v. Perry, 7 Ves. 522) ; Jackson r. Jackson, 153 Mass. 374, 375 (same doubt) ; Carter V. Bentall, 2 Beav. 522 ; Doe v. Ewart, 7 Ad. & E. 636. 2 Ex parte Artz, 9 Md. 65. 8 Heard v. Horton, 1 Denio, 168; Campbell v. Rawdon, 18 N. Y. 412, 417 ; Simms v. Garrot, 1 Dev. & B. Eq. 393. 13 194 THE LAW OF WILLS. contemplated a gift to the persons called heirs, in the lifetime of their ancestor, the courts will lay hold of it and save the gift.^ Thus a testator gave property to the 'heir' of A, described as ' of Butterhill,' and the description was taken as showing that the testator con- templated in A a person living at his death." There is of course an end of question if the testator directly states that the person is living.^ But in the absence of expressed intention, the rule that a gift to the ' heirs ' of a person stated or indicated to be living, is meant to be a gift to the children or other kindred of the living person rather than to those who may be his heirs at his death, applies only when those heirs are to take pres- ently upon the testator's death. It would not apply where the gift to them follows a gift to some one else.* Take for consideration the common word ' issue.' That is a technical term, which in its primary or techni- cal sense means one's entire posterity, heirs Word ' issuG ' of the body through all generations. ' The term embraces descendants of every degree, whensoever 1 Montignani v. Blade, 145 N. Y. Ill, 122. 2 Came v. Roche, 7 Bing. 226. ^ Heard v. Horton, 1 Denio, 168; Montignani v. Blade, supra. 'It is true,' said Finch, J., in the last-named case, at p. 122, of a gift of personalty, 'that the testator, in providing for the ultimate vesting, gave the stock to the " heirs " of his sou John, and since John is liv- ing and strictly can have no heirs until his death, it is argued that the vesting is postponed for the further life of John. But where the be- quest is of personal property, the word " heirs " is taken to mean those in the line of distribution, or the next of kin ; and where the will shows on its face that the person whose heirs are referred to is, to the knowl- edge of the testator, at that time living, it is obvious that it is not used in its strict technical sense, but means, in the case of land, heirs appar- ent, or those who would be the heirs were the living ancestor deceased (Heard v. Horton, 1 Denio, 168), and, in the case of personal property, next of kin, who would be such were the ancestor deceased (Cushman V. Horton, 59 N. Y. 151).' * Campbell v. Rawdon, 18 N. Y. 412. SECONDARY CONSTRUCTION: WORDS. 195 existent, and, unless restricted by the context, cannot be satisfied b}' being applied to descendants at a given period.' ^ Prima facie meaning heirs of the bod}', it is therefore a word of limitation, that is, a word describing and limiting the estate of tlie ancestor, giving him an estate tail, and not a word of purchase for the ' issue ' ; unless a different intention is shown. Hence a devise to A for life and after his death to his ' issue ' creates, in the absence of statute, an estate tail in A, and not a life estate with a remainder by way of purchase in the issue. The question then is, whether there are any rules of construction by means of which this primary meaning can be overturned and an estate given to the issue as 1 Jarman, 1257 ; Jackson v. Jackson, 153 IMass. 374, 377 ; Patterson V. Madden, 54 N. J. Eq. 714, 717, 723. See the last case as to the com- mon-law construction of the words ' leaving no issue ' or ' without leav- ing issue,' or ' dying without issue ' in devises and bequests, followed by gifts over; also Coles v. Ayres, 156 Penn. St. 197 ; ante, p. , note. The effect of such words has been the subject of legislation in many States. At p. 723 of Patterson v. Madden, supra, Guramere, J,, says : 'By the decision in Pennington v. Van Ilouten, 4 Halst. Ch. 745, . . . two rules are established in the construction of wills containing a limitation over by way of executory devise after the death of the original devisee without issue, viz. : First, If land be devised to A in fee, and a subsequent clause in the will limits such land over to desig- nated persons in case A dies without issue, and A so dies, and tlie sub- stituted devisees are in esse at his death, and there is no other event expressed in the will to which the limitation over can fairly be referred, then A takes a vested fee which becomes divested at his death, and vests in those to whom the estate is limited over. Second, Where there is an event indicated in the will other than the death of the devisee, to which the limitation over is referable . . . such limitation over will be construed to refer to the hap])eiiiiig of such event, or to the death of the devisee, according as the court may determine, from the context of the will and the other provisions thereof, that the limi- tation clause is set in opposition to the event specified, or is connected with the devise itself.' 196 THE LAW OF WILLS. purchasers; for if the issue take as purchasers, the ancestor cauuot cut them off by any process of turning his estate tail into a fee simple — he has no estate tail if the issue are purchasers. Reminding the reader that the subject under consideration is not the devolution of property, but merely legal method in reaching results — in the case in hand, the method of overturning the par- ticular presumption — the answer is, that there are rules of construction affecting the primary meaning of the word, some against it, some in favor of it. The follow- ing may be noticed : — The primary meaning of the term ' issue ' has been departed from by a testator when he has provided that ^ , the ' issue ' shall take in equal shares, or Departure from primary sense as tenants in commou, with a limitation to issue. ^j^^ heirs general of such issue. A testator devised to A for life, and after his death unto all and every the issue of the body of the said A, share and share alike, as tenants in common, and the heirs of such issue. It was held that A took an estate for life onlj', and that the issue took a remainder, that is, they took by purchase.^ In another case a testator devised to A for life, and after his death to the use of all and every the lawful issue of the said A, their heirs and assigns forever, as tenants in common, on attaining twenty-one years of age. The same result was held to follow.^ The rule of construction on which these cases are founded proceeds upon the ground that the mode of Ground of this enjoyment prescribed for the issue is incon- '■"'®' sistent with the legal idea of an estate tail. If that were so plain as to be beyond question, there 1 Greenough v. Rothwell, 5 Man. & G. 628. 2 Slater v. Dangerfield, 15 Mees. & W. 263. SECONDARY CONSTRUCTION: WORDS. 197 would be no place for any ' rule ' of construction at all in the matter; the simplest kind of interpretation would be all that could be required or admitted. But the case is not so clear, — it is only a case of probability,^ — and hence the rule is a true rule of construction. The rule is considered to be strengthened by the addi- tion of a gift over on default of issue, or of issue of a particular designation, as in default of issue dying under twenty-one.^ The primary meaning of ' issue ' is changed again, as we have elsewhere seen,^ where the testator makes a gift to a person, and then, upon his death, or by ^ '■ ^ IT Issue ' mean- way of substitution if the parent should not ing children: take, makes a gift to the ' issue ' of that per- ^'i'iere'^'"^parents ' son, giving to such issue only the parent's ^nd 'issue' are share. In such a case the meaning of the word ' issue ' is cut down to children.^ It seems, how- ever, that this would not be the case where ' issue ' and ' parents,' the contrasting objects, are not used in imme- diate connection, especially' if there be other indication in the will of the use of ' issue ' in its broad, primary sense.^ A testator bequeathed a sum of money to trustees in trust to pay the income to his son's wife for life, and the principal on her death to her husband ' if then living, and if not, to her issue. And if she should sui-vive her 1 See the remarks of Jarman, 1 260 et seq. 2 Doe V. Burusall, 6 T. K. 30 ; 3 R R. 113. 3 Ante, p. 194. * Ralph V. Carrick, 11 Ch. D. 873; Jackson v. Jackson, 153 Mass. 374, 377. Both of these cases, however, doubt Sibley r. Perry, 7 Ves. 522, and the Massachusetts case, as before iu HiUs v. Barnard, 152 Mass. 67, refused to follow Martin v. Holi^ate, L. R. 1 H L. 175. See also Ralston v. Truesdell, 178 Penn. St. 429; and see Crane v. Belles, 49 N. J. Eq. 373, 382, on the question whether the issue must survive the period of distribution where the gift is substitutional. 6 Jackson v. Jackson, supra. 198 THE LAW OF WILLS. said husband,' the will proceeded to declare, ' and should leave no issue, I give ' the said sum ' at her death to all my children then living, and the issue of any deceased child ; such issue to take as by right of representation the shares of their respective parents.' The sou's wife sur- vived her husband and left two sons and a daughter, also the only child of a deceased daughter, and the children of one of the two sons ; she had no other issue living after the testator's death. It was considered that the primary sense of the word ' issue ' had not been taken away by the language of the will, and hence that it should be construed to mean all lineal descendants; the result of which was, that the two sons and the daughter, and the child of her deceased daughter, took the principal in equal shares.^ Again, ' issue ' may mean children of a person living in the lifetime of the testator; as where there is a gift Gift to A, and to A in fee, but, in case of his death with- ^without']ssue ' °"* issue, to B. The rule is thus laid down : to ^- Where real estate is given in terms denot- ing an intention that the primary devisee shall take a fee or absolute estate in personalty on the death of the testator, followed by a gift over in case of his death without issue, the words refer, by the uniform rule in England, and by the weight of authority in this country, to death without issue in the lifetime of the testator; and the primary devisee or legatee surviving the testator takes an absolute estate.^ But it is said that this rule ' maintains its hold somewhat weakly and with a doubt- 1 Jackson xk Jackson, 153 Mass. 374. 2 Vanderzee v. Slingerland, 103 N. Y. 55, Andrews, J.; Stokes v. Weston, 142 N. Y. 433, 436; Washbon v. Cope, 144 N. Y. 287, 297 ; In re Denton, 137 N. Y. 428; Benson v. Corbin, 145 N. Y. 351, 358, Finch, J. ; Antioch College v. Branson, 145 Ind. 312 ; Fowler v. Duhme, 143 Ind. 248, 260. SECONDARY CONSTRUCTION: WORDS. 199 ful grasp,' yielding easily to indications of a dififerent intention.^ It does not apply where a life or other estate intervenes between the gift to A and that to B," or where A himself takes only a life estate, or anything less than an absolute estate, whether in realty or personalty.^ On the other hand, there are rules, as has already been intimated, in support of the presumptive meaning of the word ' issue.' One of them is, that the word „ , Kules support- is not converted into a word of purchase by ing priinuiy 66nS6 of ' issuG * the addition of words of limitation describ- iuo- heirs of the same kind as the issue. A testator de- vised to his nephew for life, and after his death to the use of the male issue of his body, and the heirs male of such issue male, and for want of such male issue, then over. It was held that the nephew took an estate tail.^ It was a case of balancing intentions, and so the pre- sumption prevailed. Another rule is that the addition of a limitation to the heirs general of the issue will not prevent the word ' issue ' from creating an estate tail, as a word of limita- tion, according to l^nglish authority.^ A testator devised to A for life, and after that estate to the issue male of A and to their heirs, and for want of such issue, over. A was held to take an estate tail.^ Still another rule in favor of the primary sense: If there be a gift over, upon a general failure of ' issue,' ' issue ' must be taken in its ^ Finch, J., in Benson v. Corbin, snpra. See also In re Denton, 137 N. Y. 428, 433. 2 In re Denton, ut supra. 3 Mullarky v. Sullivan, 136 N. Y. 227, 231 ; Fowler ?;. Ingersoll, 127 N. Y. 472. 4 Roe V. Grew, Wilra. 272 ; 2 Wils. 322. 5 But see Shreve v. Shreve, 43 Md. 382 ; Way v. Gest, 14 Serg. & R. 40. 6 King V. Burchell, 1 Eden, 424. 200 THE LAW OF WILLS. technical sense, unless some different intention is man- ifested in the will.^ As for non-technical words, the ordinary popular mean- ing is the primary one, and, unless a different intention Non-technical is shown, they are to receive that meaning, words. j£ jj. jg definite enough to solve the question raised. If, however, the popular meaning is vague or doubtful, the courts will find perhaps a sufficient one ; or if, though such meaning is definite enough, that meaning is thrown into doubt, there may arise occasion for con- struction. But in many cases it will be found that there are no rules of construction for such cases. In such cases the doubt must be resolved, if at all, by such sen- sible means as are still left. Comparison and experi- ment should be tried; one should endeavor to put oneself in the position of the testator; the particular word or phrase should be thrown into this light and that, and its consistency with the rest of the will tested accordingly, until some just meaning can, if possible, be found for it. There are cases of isolated words of object,- however, having no technical meaning, in regard to which rules of construction have been found as desirable and prac- ticable as in the cases of technical words, in aid of the meaning when doubt is raised by other language of the will or from without. The word ' children ' furnishes an instance. Primarily the word children means offspring in wed- lock, in the first generation. Illegitimate children are 1 Ross I'. Ross, 20 Beav. 645 (ante, p. 170) ; Ralph i'. Carrick, 11 Ch- D. 873. 2 That is, words not in collection — non-sociate words, so as not to be within the rule of noscitur a sociis. SECONDARY CONSTRUCTION: WORDS. 201 excluded by a strong presumption, or, per- . , _ Laps more correctly, by great firmness of illegitimate the primary meaning of the word. How firm that meaning is may be seen in this, that it is not affected by the fact alone that there are no other than illegitimate children at the time when the gift is to take effect, so that the gift must fail for want of objects. A testator bequeathed certain annuities and desired that the first one that fell in should devolve upon the ' eldest child, male or female, for life, of A.' At the time of making the will A had, to the testator's knowledge, illegitimate and no legitimate children, and had none when the first annuitant died. It was held that by the words ' eldest child ' those only could be considered intended who could entitle themselves as children by the strict rule of law; no illegitimate child had any claim. -^ Indeed it was formerly laid down that nothing short of necessary implication could enable illegitimate chil- dren to take under the designation ' chil- dren. ' ^ A testator, unmarried, directed that pHcatioirfor- in case he should have any child or children "o^overturn the by A, a woman with whom he was cohabit- definition: not so now, ing, a certain sum of money should be raised ' for such child or children.' It was held that this must be looked upon as a case in which the testator contem- plated marriage with A, and therefore legitimate chil- dren only were meant; there was not enough, it was said, to show any necessary implication that illegitimate children were meant. 1 Godfrey v. Davis, 6 Ves. 43; Holt v. Sindrav, L. R. 7 Eq. 170, 175; Gardner v. Heyer, 2 Paige, 11 ; Lyon v. Lyon, 88 JIaine, 395, 406. 2 Lord Eldon in Kenebel v. Serafton, 2 East, 530. To the same effect, Wilkinson v. Adams, 1 Ves. & B. 422 ; Mortimer v. We.st, 3 Russ. 370. 202 THE LAW OF WILLS. But while the decision against illegitimates in such a case would still be upheld, the doctrine that necessary implication is required to admit illegitimates under the designation of ' children ' appears to have been aban- doned. Any reasonable evidence that the testator meant illegitimate children would now be considered. Of course where he identifies the child or children by name, as, for instance, ' my son William,' having no legitimate offspring of the name, the case is clear beyond doubt. ^ So where he identifies them as ' now living,' the only children living at the time being illegitimate.^ The same would be true of a gift to a person till marriage for the support of her children A and B, ' and in case of her death or marriage ... to the use of her chil- dren ' ; ^ and also of a gift to ' the children of the late A,' a person dead when the will was made, leaving ille- gitimate children only.^ Such cases are too plain for doubt; they fall within the meaning of necessary implication. But it now ap- pears to be clear, against former doubts, that illegitimate offspring may take 7vith legitimate, when the context or other language of the will reasonably indicates that such was the testator's intention.^ The rule has been stated thus: In order to let in illegitimate children in a gift to ' children,' it must be clear on the terms of the will, applied to the facts at the time of making it, that legiti- mate children never could have taken ; or that its terms, 1 Rivers's Case, 1 Atk. 410. 2 Gardner ?•. Heyer, 2 Paige, 11 ; Beachcroft v. Beachcroft, 1 Madd. 430 ; Gabb v. Prenderccast, 1 Kay & J. 439. 8 In re Connor, 2 Jones & L. 456. * Woodhouselee v. Dalryniple, 2 Mer. 419. 5 Hill V. Crook, L. R. 6 H. L. 283, Lord Cairns ; In re Haseldine, 31 Ch. D. .511; Barnett v. Tugwell, 31 Beav. 232; In re Harrison, 1894, 1 Ch. 561, 567. SECONDARY CONSTRUCTION: WORDS. 203 SO applied, never could have bad full effect if confined to legitimate children.^ Indeed it is declared that the doctrine that, in the absence of express language, there must be necessary implication to show that ' children ' will include illegitimate offspring, is to be taken only as warning or caution not to give way to guesses or specu- lation, and not as a canon of construction.^ It is not to be supposed, however, that the firmness of the primary meaning of ' children ' has given way; the foregoing remarks only show that too high Firmness of ground was formerly taken in regard to the '" hTidrfn^^stiil word. It would probably be held now as mamtained. formerly, for instance, that, even thougli in a codicil the testator recognize as his own an illegitimate child born since the execution of the will, there is not sufficient to entitle the child to claim a gift in the will to the future children of the testator.^ Perhaps it would not be enough that even in the same will the testator has made a gift to such child by the description of the only surviving child. A testator gave the residue of his property equally between the children of his son A and of his two other children. In the same will he made a specific bequest to B as ' the only surviving child of A.' Only legitimate children were considered entitled.* In all these cases it has been said, by way of comment, that the terms of the gift were satisfied by referring them to legitimate children only. In none of the wills was there any such manifestation of intent to use the word ' children ' out of its ordinary legal sense of legitimate 1 Jarman, 1097. 2 In re Jodrell, 44 Ch. D. 590, Bowen, L. J. ; In re Deakin, 1894. 3 Ch. 565,571. 3 Arnold v. Preston, 18 Ves. 288. * Bagley v. Mollard, 1 Ryau & M. 581. 20-4 TPIE LAW OF WILLS. offspring as to justify giving to it any other meaning. Tliey sliow that the circumstance that the testator was a bachelor and had illegitimate children when he made the will, and that some of such children were objects of his bounty, and were described as the ' children ' of the person to whose other children the gift in question is made, — that all this is not enough to divert the word ' children ' from its primary meaning. In such cases the conjecture^ though highly reasonable, that the testator meant by the gift to discharge a moral duty to his ille- gitimate offspring is dismissed before the rule that ' chil- dren ' must still mean legitimate children only.^ Such at any rate is the doctrine of the English authorities.^ It is laid down that the rule which prevents illegitimate children taking under a gift to ' children ' does not apply Exclusion of to a gift over to another on default of issue illegitimates q£ ^^ illegitimate child. A testator made does not apply » to gift over. two dcviscs in favor of his illegitimate daughter A, describing her in each as his ' eldest daugh- ter.' Then he made a gift to his ' four youngest daugh- ters ' by name, and after other dispositions directed ' that should any of my children die without having children lawfully begotten, their share, whether land or money, shall be divided equally among my surviving children.' A survived the testator, but died without issue; the other children surviving her. It was held that the word ' chil- dren ' in this case included A, in the sense that her share 1 Jarman, 1081, for the substance of the paragraph. 2 ' It is not because you find in the outward circumstances that there are some children whom you think that tlie testator ought to have provided for, that the will must be taken to mean that they are to be provided for, when the words in the will can liave full and com- plete effect given to them if you interpret them in another and a legal sense without altering a single word.' Lord Ilatherley, in Dorin v. Dorin, L. E. 7 H. L. .568, reversing L. R. 17 Eq. 463. SECONDARY CONSTRUCTION: WORDS. 205 as one of the ' children ' went over, on default of issue of hers, to the surviving children.^ 1 Smith V. Jobson, 59 Law T. 397 (1888). With regard to gifts to illegitimate children en ventre sa mere, the question is not whether they can take under the designation of ' chil- dren,' but whether they can take under any designation the plainest. It is not then a question of construction, and hence does not fall within the scope of the present subject. See Jarman, 1102-1114. 206 THE LAW OF WILLS. CHAPTER XVII. SECONDARY CONSTRUCTION: WORDS. GENERAL WORDS OF DEVISE. By the term ' general devise ' is meant, broadly speak- ing, a testamentary gift of lands not defined, — a gift of ,,., . . ^ lands indeed, but a gift which does not in \\ hat IS meaut ' ° by a general terms Or by implication pass identified lauds. d6vis6 Such a devise may appear in the earlier dis- posing part of the will or in the residuary clause. Thus a testator, in one of the earlier clauses of his will, says, ' I give all my real estate,' or, after the earlier clauses of disposition, ' I give all the rest and residue of my real estate ' ; in the first case the devise is always general if the testator has different estates of realty ; in the second, it is general if he has not already disposed of all but some particular estate. In other words, a devise is gen- eral if it is not in terms or by implication specific.^ We have next a matter of special definition, to be stated as the necessary condition to certain inquiries Effect of gen- i^^^o construction. A testator, being owner erai devise. Qf freehold and non-freehold lands, makes a devise of all his real estate; what is the effect of the 1 See In re Huddlestou, 1894, 3 Ch. 595, 601 ; Robertson v. Broad- bent, 8 App. Cas. 812. 'You have got a long way towards a specific gift if you come to the conclusion that ' the testator ' is trying to de- scribe something which he has.' In re Nottage, 1895, 2 Ch. 649, 664, Eigby, L. J. ; In re Weeding, 1896, 2 Ch. 364, 368. SECONDARY CONSTRUCTION: WORDS. 207 language — that is, bow is such a devise to be defined ? Laying aside the question whether the gift carries lands acquired after the making of the will, a subject else- where considered, the broad primary meaning in law of the language is that it is a gift of the testator's freehold lands, and of those only, unless statute has extended its meaning, as it has in certain States. At common law, estates less than freehold would not pass under a general devise, unless the testator had no freehold land and had, for instance, leaseholds.^ The devise, too, by the com- mon law, passed the freehold lands for life only, unless there was indication on the face of the will that the tes- tator intended to give a greater estate ; now, however, by statute, in most States of the Union, ^ the devise would carry the lands in fee, if the testator so owned them. The definite primary meaning, then, of words of general devise is a gift for life or in fee of the testator's free- hold lands, according as his ownership is for life or in fee; and it may be, by statute, of his non-freehold lands also.^ Having thus fixed upon the primary meaning of the words, it is now to be observed that that meaning may be drawn in question by the context or other related lan- guage of the will, or by external facts, or by some ellipsis of intention. In such a case the whole will, in accord- ance with what has been said in Chapter XIV., should first be diligently examined, to see whether the testator liimself may not have cleared up the doubt. If that 1 Rose !•. Bartlett, Cro. Car. 293 ; Taylor v. Taylor, 47 Md. 295. 2 Not ill Indiana. Mulvane v. Rude, 146 lud. 476, 480. See Korf V. Gerichs, 145 Ind. 134, 136. 3 By statute in many States, following the Revised Statutes of New- York, every grant or devise of real estate, or any interest therein, passes all the estate or interest of the grantor or testator, unless an intent to pass a less estate or interest shall appear by express terms or necessary implication. Kent, iv. 538. 208 THE LAW OF WILLS. examination fail, inquiry should be made whether or not the law may not have furnished some rule or rules by which the difficulty may be removed. A few cases of the latter kind will now be considered. The primary meaning we have found for words of general devise covers the case of reversionary estates in land ; a reversion is the freehold, in fee or Reversions. j. ,.j. , . . . , tor life, subject to the prior particular estate, to return — revert — in possession to the owner upon the determination of the particular estate standing before it. Accordingly a general devise should pass reversions; and this it does, in the absence of evidence of intention to the contrary. It matters not whether such estates were in the testator's mind, as a matter of fact, or not. A testator gave to A the residue of all his estate, real and personal, after his wife had taken her thirds, no direct provision for her being made in the will. It was held that the gift included the reversion of the land assigned to the wife in dower, in the absence of language showing a different intention.^ This is mere definition ; that is, we have not yet had the primary meaning of any term drawn in question, nor have we had any ellipsis of inten- tion to deal with. Let us now suppose some such difficulty. Suppose in the case of a general devise by a testator who owns reversionary estates, that some of the limita- tions of the devise are not applicable to the reversions ; will the reversions still pass? The answer, by a rule of law framed to meet such cases, is in the affirmative, pro- vided that the limitations in question can be applied to other real estate disposed of by the will. A testator, having an estate in reversion and other lands, devised his lands generally, charging them with the payment of ^ Yeomans v. Stevens, 2 Allen, 349. SECONDARY CONSTRUCTION: WORDS. 209 annuities to three persons for life, one of whom was tenant for life of the lands of which the testator had the reversion, so that the charge towards him was void. It was held that the devise carried the estate in reversion, for though the annuity could not be charged upon the particular property, there was other land of the will, upon which it could be charged.^ Mortgages of freehold estates in land, in fee or for life, on the side of the mortgagee, also fall within the definition of words of general devise; a ^.^ , ^ Mortgaged es- geueral devise by the mortgagee passes the tates devised estate. But what estate ? for a mortgage ^ ^^^^ g^S^^. imports a double interest in the mortgagee, to wit, the legal title, potentially,^ to the mortgaged estate and a right to payment of the debt; which two estates may be called, respectively, the legal and the beneficial estate. A doubt thus arises upon the face of the will, which, let it be assumed, is not removed- by any language of the in- strument; and the question is, whether the law has any rules to meet the case. In regard to the legal estate, it has long been settled, at common law, that the devise will pass it, if no evi- dence of a different intention appears. A ^ , . . ■ ^ ^ Legal estate in mortgagee of lands in fee devised all the the mortgage rest, residue, and remainder of his estate, ^' real and personal, of whatever kind, not before disposed of, to A, his heirs and assigns forever. It was held that the legal estate in the mortgaged property passed.^ 1 Doe V. Weatherby, 11 East, 322 ; Doe v. Fossick, 1 Earn. & Ad. 186. 2 By the common law the mortgagee had the legal title actuallij ; but statute has modified the case in most if not in all the States. 2 Ex parte Sergison, 4 Ves. 147. 14 210 THE LAW OF WILLS. The same question in substance would be raised in the case of a general devise by a trustee of estates held in Effect upou trust, aud the answer would be the same, trust estates. ^ testator had devised lauds to trustees upon trust for paying debts and settling the estates. After- wards, and after the death of the trustees, the heir of the last one devised all his ' real estates whatsoever and w^heresoever ' to his wife, her heirs and assigns forever. It was held that this passed the legal estate in the lands devised in trust ; and it was now laid down that trust estates will pass under a general devise, unless it can be collected, from expressions in the will or from the purposes of the testator, that he did not mean that they should pass.^ In another case a surviving trustee under a will devised all his real estate, not otherwise disposed of, to his godson, his heirs and assigns, and it was held that the trust estate passed.^ It is equally true that at common law a general devise of lands will not pass the beneficial interest of the tes- „ r. . 1 . tator in lands mortgaged to him ; that is, the Beneficial in- . terest of mort- words of dcvise will be construed not to carry ^^^^^' to the devisee any right to the debt secured by the mortgage, unless a contrary intention is shown.' The devisee is at most merely a trustee for the person entitled to receive payment of the debt.* On the other 1 Braybroke v. Inskip, 8 Ves. 417, Lord Eldon ; Jackson v. Delancy, 13 Johns. 537 ; Heath v. Knapp, 4 Barr, 228 ; Kent, iv. 538, 539. This common-law principle applies as well to mortgaged as to trust estates. ^ Bain bridge v. Ashbiirton, 2 Younge & C. 347. 8 Marshall v. Hadley, 50 N. J. Eq. 547. 549. It would be otherwise, it seems, if the mortgage operated as a convejanee of land described in it, so that the testator became beneficial owner of the land for all purposes. Id. By force of a mortgage the mortgagee does not acquire the land as owner, but simply acquires a right to hold it as security for the debt. Id. * So where the devise is specific. In re Clowes, 1893, 1 Ch. 214, SECONDARY CONSTRUCTION: WORDS. 211 hand, a devise of all the lands of the testator held by him in mortgage would pass the beneficial interest, that is, the debt, but not the legal estate in the lands.-^ And the same would be true if property comprised in a gen- eral devise should be subjected to the payment of debts, legacies, or other charges, or if the will contained pro- visions to which it could not be supposed that the tes- tator intended to subject property not beneficially his own.^ The subject of the foregoing remarks must be under- stood to relate to mortgages in fee or freehold. Mort- gages of less estates, as for instance of ,^ ° ° . ' . Morts,'ages of leasehold interests, are in law no more than leasehold es- personal property, and words of general de- vise of the testator's lands would not, it seems from what has already been stated, be construed to pass to the devisee the legal estate, or at common law the bene- ficial interest, unless the testator had no freehold estates upon which the will could take effect.^ The legal estate would pass to the testator's executor, who would receive payment of the debt for those ultimately entitled. But the statutes should be consulted upon the point. Another instance of a rule to supply an omission of the testator may be seen in a case of a general devise of land to vest in futuro, where the produce xjndisposed-of meantime is not disposed of. Such produce, income. by rule laid down by the courts, passes under a residuary general devise, unless a different intention appears. 217, Lindley, L. J. : 'If a testator specifically devises a particular estate, which is only a mortgage estate, and not the money charged on it, the devisee is only a trustee for the persons entitled to the money.' 1 Martin v. Smith, 124 Mass. 111. 2 Jarman, 649. 3 Ante, p. 207. 212 THE LAW OF WILLS. Thus a testator devises all his real estate to A upon his attaining the age of twenty-one, and to B if A shall die undfer age, and he then devises all the rest and residue of his real estate to C. C is entitled to the rents and profits of the land until A becomes twenty-one, if A lives to attain majority. If he should die under twenty- one, B would be entitled to the rents and profits until A's death. GENERAL WORDS OF LEGACY. By the term ' general legacy ' is meant, broadly speak- ing, a testamentary gift of personalty not defined, — a yrj, ^ . ^ gift of chattels, indeed, but a gift which What IS meant ° ' ' * by a general does not in terms or by implication pass egacj. identified chattels. As in the case of a general devise, such a legacy may appear in the earlier disposing part of a will or in the residuary clause. Thus: 'I give all my personal estate,' or 'all my goods and chattels ' ; 'I give all the rest and residue of my personal estate,' or 'of my goods and chattels.'^ ^ A testator gave ' debenture stock or shares,' in certain companies, having such property" in them. It was contended that the gift was general, and hence that the amount given should be purchased and not taken out of what he had. The court held tlie contrary; the gift was deemed specific. In re Nottage, 1895, 2 Ch. 657, Rigby, L. J. : ' The case is totally different from that of a testator saying, " I give to A B £1000 consols." Consols are a common form of invest- ment, and in such a gift there is nothing to lead to the conclusion that he meant the gift to be part of the consols which he had.' There were, however, expressions which agreed better with the hypothesis that the gifts were specific than that they were general, as the same learned judge said. What legacies are specific, general, or demonstrative, a subject not entered into in the text, see, among recent cases. In re Pratt, 1 894, 1 Ch. 491 ; Page v. Young, Law Rep. 16 Eq. 501 ; Mytton v. I\Iytton, id. 30; Robinson i;. Addison, 2 Beav. 515; Maybury v. Grady, 67 Ala. SECONDAKY CONSTRUCTION: WORDS. 213 What is the effect of such a gift ? The question may be shortly disposed of here. The words ' goods aud chattels ' or ' effects,' in a legacy of all one's Effect of gen- ' goods and chattels ' or ' effects, ' in their ^^^^ legacy. primary meaning, comprise the entire personal estate of the testator. This comprehensive signification as the primary meaning of the words has gained great firmness in recent times, at least in England. Indeed it is broadly laid down in that country, with reference to such words, that words naturally of comprehensive import must be taken in their full extent, unless some very distinct evi- dence appears for treating them as intended in a restricted sense. ^ But such words as 'goods,' ' chattels,' and ' effects ' are often accompanied by other words of personalty of more restricted sense. That alone would not, according to English authority, be enough to affect the case; "^ but 147 ; Hutchiuson v. Fuller, 75 Ga. 88 ; Morton v. Murrell, 68 Ga. 141 (gift of money payable out of a specified fund is general, by statute) ; Roquet v. Eldridge, 118 lud. 147 ; Addiugton v. Smith, 83 Maine, 551 ; England v. Prince George Parish, 5.3 Md. 466 ; Harvard Soc. v. Tufts, 1 51 Mass. 76 ; Bradford v. Brinley, 145 Mass. 81 ; Tomlinson v. Bury, id. 346 ; Metcalf v. Frarainghara Parish, 128 Mass. 370, 373 ; Le Rougetel V. Mann, 63 N. H. 472 ; Moore v. Moore, 50 N. J. Eq. 554 ; Hayes v. Hayes, 45 N. J. Eq. 461 ; Tifft v. Porter, 8 N. Y. 516; Glass v. Dunn, 17 Ohio St. 413; Sponsler's Appeal, 107 Penn. St. 95; Hammer's Estate, 158 Penn. St. 632; Johnson's Estate, 170 Penn. St. 177; Bowen V. Dorrance, 12 R. I. 269; McFadden v. Hefley, 28 S. C. 317; Martin V. Osborne, 85 Tenu. 420; Hood v. Haden, 82 Va. 588; Myers v. Myers, 88 Va. 131 ; Hibler v. Hibler, 104 Mich. 274 ; Wheeler v. Wood, id. 414. 1 Jarman, 715. See Arnold v. Arnold, 2 Mylue & K. 365. 2 'The mere enumeration of some items before the words "other effects " does not alter the proper meaning of those words.' Arnold V. Arnold, 2 Mylne & K. 365, Lord Cottenham, M. R., overturning the doctrine of Lord Eldon in Hotham v. Sutton, 15 Ves. 319, which has been much followed in this country, as it had been in England. See Richardson v. Hall, 124 Mass. 228; Dole v. Johnson, 3 Allen, 214 . THE LAW OF WILLS. the accompanying words clearly may be of a nature to throw the meaning of the words In question into doubt. This doubt may, in turn, often be resolved by the accom- panying words, by force of the rule, or canon of inter- pretation, ' noscitur a sociis.' That rule is considered in the preceding chapter. It only needs to be added here that the words ' goods,' schattels,' ' effects,' and the like general words of per- sonalty, while in later authorities they have gained firm- ness of meaning, seem more sensitive to the influence of accompanying words of personalty of restricted sense than does the word ' estate' or its cognate ' property,' which, prima facie, embraces realty. And the reason is plain ; one is more apt to use general words of person- alty in some restricted sense of the same kind of prop- erty than to use a general term which naturally embraces realty in the sense of a totally different kind of property. 364 ; Bills v. Putnam, 64 N. H. 554 ; Hoopes's Appeal, 60 Penn. St. 220 ; Tefft v. Tillinghast, 7 R. L 434 ; Gooch v. Gooch, 33 Maine, 535 ; Adams v. Joues, 6 Jones, Eq. 221 ; Hurdle v. Outlaw, 2 Jones, Eq. 75 ; Dalrvmple i\ Gamble, 68 Md. 523 ; Wolf v. Schaeffner, 51 Wis. 53. It is believed, however, that Lord Gotten ham's rule is the better one. To harden the meaning of the word is to make the interpreta- tion simpler and more certain, and is quite as likely to meet the testator's intention. SECONDARY CONSTRUCTION: CLAUSES. 215 CHAPTER XVIII. SECONDARY CONSTRUCTION: CLAUSES. We have now reached the subject of secondary con- struction in relation to the meaning or existence of whole clauses. The first topic for consideration thereunder is the special feature of certainty called certainty of object and subject. CERTAINTY OF OBJECT AND SUBJECT. The certainty which construction seeks to make out is, in particular, certainty both of the person or object of gift, and of the property or subject of gift; A matter both failure of the testator to express himself secondary con- with certainty in either of these points being struction. fatal, unless some rule of construction can be summoned in aid ; except in cases of public charity at common law, of which in its place. The topic, as has been stated else- where,^ is one of construction in general, relating equally to primary and secondary methods; but where simple interpretation might be unequal to the purpose sought, rules of construction may often find place for determin- ing the legal meaning of the language. We have then to consider the topic of certainty of object and subject in the light of rules of construction. Matters pertaining to object and subject alike will first be considered. ^ Ante, p. 150. 216 THE LAW or WILLS. The requirement of certainty is not a requirement that the dispositions of the will must be absolutely free from ,,. , mistake. It matters not that description or statement may be defective or even errone- ous, if still there is enough in the will or in things legally related to it to remove the defect or to correct the error. In other words, if the will supply the means of identify- ing the defectively or erroneously named or described subject or object, the case is not one of fatal uncer- tainty.^ Thus there may be a total mistake of name in the occupant of a house devised, or in the name or loca- tion of the house ; but if there is otherwise a sufficient description of it, the devise will be good. The part fixed upon must, however, be such that it is plain that the rest can be rejected without defeating, or, rather, as follow- ing, the real intention of the testator, as in the example just mentioned, where the house is described by name, — for instance, Fleetwood House in L; for there is by the name an adequate description, and any erroneous addition may be disregarded. It is accordingly a settled rule of law that if there be first an unambiguous and certain description of persons or things, and then another description fail- Certaintv fol- . . ^ . lowed by un- ing in Certainty or accuracy, the latter must same'thmg: ^^ rejected.^ So if a description be false correcting i^ part but Sufficient remain to identify mistake. " what is intended, the false will be rejected 1 See Rogers v. Rogers, 78 Ga. 688 : Missionary Society v. Mead, 131 111. 338; Drew v. Drew, 28 N. H. 489 ; Stephens w.Powys, 1 DeG. & J. 24. In some cases the mistake is not fatal, though the will does not supply the means of correction, as where the testator did not h.ave the thing given, hut had something like it. In re Weeding, 1896, 2 Ch. 364, infra. 2 Jones V. Robinson, 78 N. C. 396 j Patch v. White, 117 U. S. 210; SECONDARY CONSTRUCTION: CLAUSES. 217 and the gift sustained; ' falsa demonstratio non nocet; ^ ' Veritas nomiuis tollit errorem demoustratiouis.' But the rule is otherwise if a sufficient description does not remain after rejecting the false. Evidence will not be received in such a case to correct the mistake.^ Thus if a testator devise laud as lying in ' section thirty-two,' Avhere he has no laud, evidence ^ill not, according to the better rule, be received to show that the testator meant section thirty-three, where he had land, and that the draftsman of the will made a mistake in the matter.^ The will alone can furnish the means of correctina; the mistake; if it does not, the gift falls into the residue if there be a residuary clause, or goes as intestate property if there be no such clause. Non-charitable trusts furnish another illustration; be- sides sufficient words of trust, there must be certainty both of subject and of object to make the Non-charitable trust complete. Charitable trusts, as we trusts, shall see later in this chapter, stand upon a footing of Benson r. Corliin, 145 N. Y. 351. The order of description is not necessarily material ; the erroneous description may come first and the true one follow. A testator devised to ' William Pitcairne,' eldest son of Charles Pitcairne. The eldest son of Charles was Andrew, not "William, and Andrew was held entitled ; the words ' eldest son ' having served to make clear the one intended by the name preceding. Pit- cairne !'. Erase, Finch, 403. See also Dowset v. Sweet, Amid. 175, where ' sons ' following a wrong name served to make it clear who was meant. For other examples see Jarnian, 350 et seq. ^ Kanouse v. Slockbower, 48 N. J. Eq. 42, 45 ; Whitcorab v. Rod- man, 156 111. 116. - Fitzpatrick v. Fitzpatrick, 36 Iowa, 674. Contra, perliaps. Rook V. Wilson, 142 Ind. 24. But it was there considered that the language of the will showed the intention sufficiently. See also Whitcomb v. Rodman, 156 111. 116. 3 Kurtz r. Ilibner, 55 111. 514. See Fitzpatrick v. Fitzpatrick, supra But see Creasy o. Alversou, 43 Mo. 13, contra, and infra, p. 224. 218 THE LAW OF WILLS. their owu.^ But there is a distinction in non-charitable trusts, as well as in charitable trusts, between uncer- tainty of subject and uncertainty of object. A clearly created trust will not fail for indefiniteuess or uncertainty of the donee merely ; for a trust being clearly created, it is plain that the trustee was not to take beneficially, as he would or might if the trust were to fail entirely. Hence the trustee must still hold in trust, and the trust will stand in favor of the person entitled to take under the doctrine of void gifts heretofore stated.'^ But if there is uncertainty of the subject of gift, the trust must wholly fail; the trust itself is uncertain in such a case. It is then worthy of notice that when the trust fails be- cause of uncertainty in the subject, the donee takes the property to his own use; when it fails for uncertainty only in the object, the donee takes for the use of the residuary devisee or legatee. CERTAINTY OF OBJECT AND SUBJECT: CONTRADICTION: PREFERENCE OF LATER OF TWO CLAUSES. The testator's intention must, if possible and lawful, be carried out. It follows that the courts are bound to Effect to be give effect, as far as they can, to every word wOTd ifVos-"^^ ^^ ^^® instrument, without change or rejec- s'ble. tion.^ But it may be that parts of the will are contradictory. In such cases, where it is found 1 Tost, p. 226. 2 Aute, p. 217. But in a case of doubt whether any trust at all has been created, it may be taken against such a thing that tlie testator has left in uncertainty the person to benefit by the suj)pose(] trust. See Stead V. Mellor, 5 Ch. D. 225; Tilden v. Green, 130 N. Y. 29. 3 From a note by the present writer, in Jarinan, 436. See Quarm V. Quarm, 1892, 1 Q. B. 184, 186; Gray v. Miunethorpe, 3 Ves. Jr. 103; Dickison v. Dickison, 138 111. f>4l ; Homer v. Shelton, 2 Met. 202 ; Lasher v. Lasher, 13 Barb. 106 , Rogers y. Rogers, 49 N, J. Eq. 98. SECONDARY CONSTRUCTION: CLAUSES. 219 impossible to form out of the discordant parts any con- sistent whole, the last one, whether the contradiction relate to object or to subject, will prevail (unless other rules of law interfere) as indicating, in the eye of the law, the testator's latest intention,^ Thus a devise of an undivided part of the testator's real estate must yield to a later clause authorizing the executors, at their dis- cretion, to sell and convey part or the whole of the testator's real estate.'^ But, as already has been intimated, this rule is to be applied only where the particular clauses or provisions are totally inconsistent with each other, and jj -gg^- where the real intention of the testator can- clauses a des- -, . -I-. . .• perate remedy. not otherwise be made out. Rejecting one clause to uphold another is a desperate remedy ; necessity alone will justify it.^ Thus later clauses are not to be considered as inconsistent with and repugnant to prior clauses, if they may take effect as qualifications to them without defeating the testator's intention in making the prior gift.^ An example may be seen in the case of a 1 Jenks V. Jackson, 127 111. 341 ; Dickison v. Dickison, 138 111. 541 ; Butler V. Moore, 94 Ind. 359 ; Clafliu v. Asliton, 128 Mass. 441 ; Homer V. Shelton, supra; Rogers v. Rogers, supra ; PickeriDg v. Langdou, 22 Maine, 430; Covent v. Sebeni, 73 Iowa, .564 ; Bradstreet v. Clarke, 12 Wend. 602 ; Baird v. Baird, 7 Ired. Eq. 265 ; Miller v. Flournoy, 26 Ala. 724 ; Lewis's Estate, 3 Whart. 162 ; Hart v. Stoyer, 164 Penn. St. 523; Waring v. Bosher, 91 Va. 286; Manning v. Thruston, 59 Md. 218; Ellis v. Throckmorton, 52 N. J. Eq. 792, 799. 2 Pratt V. Rice, 7 Cush. 209, 212. 3 Jenks V. Jackson, 127 111. 341 ; Viele v. Keeler, 129 N. Y. 190, 199; Davis v. Hoover, 115 Ind. 423; Claflin v. Ashton, 128 Mass. 441 ; Hart v. Stoyer, 164 Penn. St. 523; Jones v. Strong, 142 Penn. St. 469. See Quarm v. Quarm, 1892, 1 Q. B. 184, 186; In re Seal, 1894, 1 Ch. 316. 4 Wager v. Wager, 96 N. Y. 164 ; Taggart v. Murray, 53 N. Y. 233 ; Shalters v. Ladd, 141 Penn. St. 505. 220 THE LAW OF WILLS. devise to A and his heirs forever, followed by an execu- tory devise over to another. The latter clause could not, in reason, be taken to destroy the former; it is to be considered a qualification of it, the first clause being held so far short of being, what it is by itself, absolute.^ So, too, where it is manifest from the language of the will that since writing out the absolute gift the testator has changed his mind and determined to cut it down, the earlier clause will be qualified accordingly. This may occur not only in a codicil modifying an absolute gift in the will, but in another part of the same instrument iu which such gift is made. Indeed, though there be no manifest change of mind by the testator, if still the instrument shows a general „ , • , , intent inconsistent with the gift of the abso- General intent ^ and particular lute estate as Only showing a special intent, the general intent will ordinarily prevail, and the absolute gift will be cut down accordingly.- A ^ The distinction between such a case ami an attempt to take away the incidents of an estate is clear, as elsewhere noticed. Shatters v. Ladd, supra. 2 Price V. Cole, 83 Va. 34.3; Honser v. Ruffner, 18 W. Va. 244; Wager v. Wager, 96 N. Y. 164; HoUiugsworth v. Hollingsworth, 65 Ala. 321 ; McMurry v. Stanley, 69 Texas, 227. So of description. Thomson v. Thom,son, 115 Mo. 56 ; Martin v. Smith, 124 Ma.ss. 111,113. A fortiori will the general intent prevail where the particular intent is in doubt and must be construed. See Hale v. Hobson, 167 Mass. 397 ; Lee r. Welch, 163 Ma.ss. 312 ; Niles v. Almy, 161 Mass. 29, 31 ; Moffett V. Elmendorf, 155 N. Y. 475, 487, 488. It is not always true that the general intent is to prevail over the inconsistent particular intent. A general scheme of charity, for in- stance, may in this country fail because of the failure of the particular intent in respect of the donee. Stratton v. Physio-Medical College, 149 Mass. 505 ; Bullard v. Shirley, 153 Mass. 559, 560. In the latter case Holmes, J., said : ' Assuming that the object is a charity, still there is no universal y)rinciple that tlie testator's particular intentions must be sacrificed by reason of that general object.' SECONDARY COXSTRUCTION : CLAUSES. 221 testator gave bis wife all his real and personal estate, to hold to herself, her heirs and assigns forever. Then he proceeded with provisions for various legacies, and finally devised and bequeathed the residue of his real and per- sonal estate to certain persons to be divided equally be- tween them at his wife's death. It was considered that the provisions following the absolute gift to the wife indicated the general intention of the testator, and that the gift to the wife mwst be cut down accordingly.^ The rule just stated in regard to general and special intents prevails over the rule that the latest of two in- consistent clauses or provisions should govern.^ Hence where such intents plainly appear on the face of the will, it matters not in what order they occur; the general intent will prevail, though it occur before the special one. By ' general intent ' appears to be meant the (or some) chief, pervading, or central purpose or scheme of the testator. Obviously particular provisions and descriptions should be treated as subordinate to such a purpose or scheme, so far as, by the words of the will, they affect it. And as a matter of fact the courts are constantly looking at the general purpose or scheme of the testator in order to construe particular expressions.^ Further, while it is, in general, true that of two abso- lutely contradictory clauses in the instrument, the first must give way, still the two clauses must ^^^ ^^^ ^^^^^^^ refer to the same subject-matter for the pur- must relate to „ ., 1 A . T ji 1 ^1 1. same thing. poses of the rule.* And though the two clauses do refer to the same subject-matter, still the first 1 Sherrat v. Bentley, 2 Mjlne & K. 149. Lord Brougham said it was a case in which the testator had either changed liis mind or did not understand the force of the words used in the gift to his wife. But Sir John Leach, M. E., in the lower court treated the case as one of general and special intent. ^ Price v. Cole, 83 Va. 343. 3 See, e. g., Clarke v. Clarke, 145 N. Y. 476, 481 : 'The scheme of the will seems to be,' &c. * Sheetz's Appeal, 82 Peuu. St. 213. 222 THE LAW OF WILLS. one is not to be disturbed further than is necessary.^ English authority has gone a long way in upholding this doctrine. According to the older authorities, if real estate is devised to A in fee, and then, in a later part of the instrument, it is devised to B, the later provision must prevail, and B take in exclusion of A.^ But more recent English authority has declared that A and B should take concurrently, though it is conceded that B alone would take if the devise to him were in another instrument.^ It is doubtful, too, whether the doctrine extends to indivisible chattels. The rule that the later of two conflicting clauses must prevail over the earlier is further subject to the rule that Rejecting words which cannot be reconciled with the words. context are to be rejected. The position occupied by the words, whether they are before, after, or within the part with which they cannot be reconciled, makes no difference. For the intention of the testator is the thing to be sought for, and that is to be found 1 Doe V. Davies, 4 Mees. & W. 599 ; Heuuing v. Varner, 34 Md. 102. 2 Coke, Litt. 112; Plowden, 541 ; Ulrich v. Litchfield, 2 Atk. 374. To the same effect, Hollins v. Coonan, 9 Gill, 62. 3 Sherrat v. Bentley, 2 Mylne & K. 165, Lord Brougham: 'If in one part of a will an estate is gi\en to A, and after the same testator gives the same estate to B, adding words of exclusion, as " not to A," the repugnance would be complete, and the rule [that the later clause governs] would apply. But if the same thing be given, first to A, and then to B, unless it be some indivisible chattel, as in the case Lord Hardwicke puts in Ulricli r. Litchfield, the two legatees may take together witliout any violence to the construction. It seems there- fore by no means inconsistent with the rule, as laid down by Lord Coke and recognized by the authorities, that a subsequent gift, entirely and irreconcilably repugnant to a former gift of the same thing, shall abro- gate and revoke it, if it be also held that, where the same thing is given to two different persons, in different parts of the same instrument, each may take a moiety ; though had the second gift been in a subsequent will, it would, T apprehend, work a revocation.' SECOXDARY CONSTRUCTION: CLAUSES. 223 in the general tenor of the instrument.-' A testatrix be- queathed an annuity to A, B, and C, and their heirs, to be equally divided between them ' in the order they are now mentioned.' The quoted words were rejected; to divide a fund between several persons in a given order was mere nonsense. There could be no division if there was an order in which the persons were to take.^ CERTAINTY OF OBJECT AND SUBJECT: EXTERNAL AID. It will be noticed from what has already been said that certainty whether of subject or object need not appear by specific description on the face of the will ; ^ no law limits the operation of the will to what its own lanouage alone defines. A maxim or rule of law of wide application declares that that is certain which the instru- ment enables one to ascertain, though this require a reference to things external to the will. ' Id certum est quod certum reddi potest.' This rule may be resorted to both of subject and of object, and indeed in aid of any- thing to which it is suited. It is accordingly no valid objection to a gift that the testator has, for instance, left the devisee or legatee to be ascertained by some future act or event, provided, of course, the will requires that the person shall be ascer- tained within the period fixed by the rule against per- petuities. A testatrix, who was a partner with others in business, by her will directed that her property should be disposed of and divided among her partners who ^ Jarman, 444. 2 Smith V. Pyhns, 9 Ves. 566. Further see Morrall v. Sutton, 4 Beav. 478 ; Chambers v. Brailsford, 18 Ves. 368. But words must not be rejected unless they cannot be reconciled with the context. In re Seal, 1894, 1 Ch. 316,321. 8 See also the incorporation of external documents, aute, p. 59. 224 THE LAW OF WILLS. should be such at the time of her death, or to whom she might have disposed of her business. The gift was held valid in favor of persons, some of them being her partners, to whom she had disposed of her partnership interest.^ Reference to occupancy often comes in aid of defect or error of locality, as locality may correct an error of occupancy. A testator devised his lands at A in the county of B, 'in the occupation of C,' whereas he had no such lands in the county of B; but he had lands in the county of D, occupied by C, and it was held that these were intended and should pass.^ But possibly the result would have been the same in this case had there been no mention of occupancy, ' for,' it is said, ' the misnomer of the county in which a parish is situate produces no uncertainty, unless the testator should happen to have property answering to the description in a parish of that name in more than one county.' ^ Having now considered the rule of certainty as appli- cable to both its parts alike, it remains to consider it in relation to its parts severally. First, then, of certainty of object. CEKTAINTT OF OBJECT. Uncertainty of object, that is, of person, often appears in one of three or four forms; first, the testator may have left the obiect vague and unascertainable, Forms of un- '' ° ' certainty of the person not being described as a member ° ^^^ ' of a class; or, secondly, the testator may have given to some of the members of a defined class or number without indicating how such members are to be 1 Stubbs V. Sargon, 2 Keen, 258 ; affirmed, 3 Mylne & C. 507. 2 Hastead v. Searle, 1 Ld. Rajm. 728. See In re Seal, 1894, 1 Ch. 316. ^ Jarman, 348. But see ante, p. 217. Further see In re Seal, 1894, 1 Ch. 316. SECONDARY CONSTRUCTION: CLAUSES. 225 ascei'taiued, or he may have given to the members of a class in succession, without declaring the order in which they are to take. To these cases may be added the case of a description accurate enough on its face, but not, as it stands, answering to any existing person or corpora- tion because of misnomer, or misdescription. And there are still other cases of indefiniteness of object.^ Of uncertainty of the first kind, the case may be men- tioned of an attempt to identify the legatee or devisee by description in whole or in part, instead Yh-st kind of of by name alone, the description being uiicertaint3% more or less defective. Defective description may be of all grades, from downright unintelligibility to some slight matter which still, especially with the context, leaves it reasonably clear whom the testator intended. And even in the case of what is unintelligible on the face of the will, the defect may be a matter to be cleared up by external evidence.'^ Of uncertainty of the second kind such cases as the following may be mentioned: Gift to one of the sons of A, who has several sons.^ Gift to twenty second kind of of the poorest of the testator's relatives, uncertainty, without indicating who are the poorest or how the fact is to be ascertained.* Gift ' to the testator's brother and 1 See, e. g., Olliffe v. Wells, 130 Mass. 221 ; Smith v. Smith, 54 N. J. Eq. 1. 2 The following are a few of many cases relating to such questions : Gilmer v. Stone, 120 U. S. 586 ; Patch v. White, 117 U. S. 210 ; Jacob V. Bradley, 36 Conn. 365 ; Hazeltine v. Vose, 80 Maine, 374 ; Nason v. First Bangor Church, 66 Maine, 100; Howard v. American Peace Soc, 49 Maine, 288; Missionary Soc. i: Chapman, 128 Mass. 265 ; Congre- gational Soc. V. Hatch, 48 N. H. 393 ; Townsend v. Downer, 23 Vt. 225 ; Hill V. Bowman, 7 Leigh, 650; Smith v. Smith, 4 Paige, 271. 3 Whitesides v. White.sides, 28 S. C. 325. * Webb's Case, 1 Rolle, Abr. 609 (D) 1, 15 226 THE LAW OF WILLS. sister's family,' the testator having more than one sister.^ The gift fails in such cases. In the case of a gift to a charity named, if there are two different charities of the name in the particular place the gift will be divided equally between them.- Where the testator has given to members of a class, or to persons named, to take in succession without declar- ing the order in which they are to take, the gift may, it seems, be saved by following the order in which the de- visees or legatees are named, or, in the case of a class by birth or relationship — such as sons, daughters, brothers, or sisters — by order of seniority. A testator devised to A and his brothers in succession, one month after their several marriages. It was held that the brothers should take according to their ages ; A, who was eldest, taking first, then the next in age, and so on.* Indefiniteness in the object of a gift to a public charity, however, which brings us to the third class of Third kind • cases, stands upon a footing of its own. gift to charity. Where the English law of charities prevails in this particular, as it does in many of the States, indefiniteness in respect of individiial objects, so far from being ground for treating the gift as invalid, is a neces- sary ground of its validity.* Indefiniteness of those who compose the general object is part of the definition of a public charity, according to the English law. An example may be seen in the case 1 Doe V. Joinville, 3 East, 172. 2 Gilmer v. Stone, 120 U. S. 586; In re Clergy Society, 2 Kay & J. 615 ; In re Alchin, L. R. 14 Eq. 230. Not so if the gift were to iudi- vidxial.s ; it would be void for uncertainty, unless the doubt could be removed by external evidence. ^ Ongley v. Peale, 2 Ld. Raym. 1312. Compare Thoraason v. Moses, 5 Beav. 77, wliere the gift was held void for uncertainty. * Sawtelle v. Witham, 94 Wis. 412. SECONDARY CONSTRUCTION: CLAUSES. 227 of a gift to trustees for the poor,^ or for the edueatiou of poor children, or towards the maintenance of a good common school in L.^ So of a gift for the poor of two churches named. ^ If individual participants in the gift in such cases were named, the gift would not be chari- table, and so far as it depended upon the law of charities it would accordingly fail.* In gifts to private charitj', however, and in gifts to public charity in States in which, as in New York, such gifts are put by statute upon the footing of gifts to pri- vate charity, indefiniteuess of object often amounts to uncertainty such as to prevent the gift from taking effect. It is in such States well-established doctrine that there must be a defined beneficiar}' named in or capable of being ascertained by the will, and that it is not enough that a power of selection is given by the will to the tes- tamentary trustee.^ Indeed it is everywhere the law, 1 Darcy v. Kelley, 153 Mass. 433. 2 Leeds v. Shaw, 82 Ky. 79. 3 Union Church v. Wilkinson, 36 N. J. Eq. 14L But the English law goes much further than the American law of any State, in support of indefiniteuess of object. See for instance In re White, 1893, 2 Ch. 41. In England a power exercised by the royal sign manual prevails for making good a defective scheme of charity, which is unknown to the law of this country ; though a narrower doctrine of equity, called the cy pres doctrine, or doctrine of approximate intention, does pre- vail here. See Moore v. Moore, 4 Dana, 366; Jackson v. Phillips, 14 AUen, 539, 576-590; Weeks v. Hohson, 150 Mass. 377; Grimes v. Harmon, 35 Ind. 198; Story, Eq. Jur. ii. § 1168, and note, 13th ed. Further see Tilden v. Green, 130 N. Y. 29, 45, 67. * But the benefit may be restricted to particular classes, as poor seamen or laborers of a town. Burhank v. Burbank, 152 Mass. 254, 256 ; Kent v. Dunham, 142 Mass. 216. In some States it matters not how vague, indefinite, or uncertain the objects of the gift, if a discretionary power is vested in some one to apply the gift in charity. Kinike's Estate, 155 Penn. St. 101. 5 People V. Powers, 147 N. Y. 104, 109; Tilden v. Green, 130 N. Y. 29 ; Rose v. Hatch, 125 N. Y. 427 ; Read v. Williams, id. 560 ; Fosdick 228 THE LAW OF WILLS. even in the case of gifts to public charity, that, is to charity in the ordinary sense, that there must be cer- tainty of object in the sense of some one, such as a city, church, or other body, corporate or not, or an individual trustee, who can call upon the courts to enforce the terms of the gift in case of need.^ Down to that point gifts in charity do not differ from other gifts. A testator gave legacies ' for masses for the repose of ' his soul, and other masses for the dead. The gifts were held invalid; there would be no one to invoke the aid of the courts to enforce them.*^ A general case of misnomer occurs where a testator makes a gift to his ' nephews ' or ' nieces,' or both, hav- -^ . , ing no such relatives of his own, but having Nephews and ^ ° nieces by mar- a wife who has them. Primarilj% of course, "'*^®' the words are to be taken in the sense of relations by blood, but where the evidence shows the case just mentioned the ' nephews ' or ' nieces ' by mar- riage will take.^ "o* Gifts to unincorporated bodies may also be noticed in this connection. In several of the States these are Unincorporated invalid for one reason or another; in some ^°'^'^^- on the ground of incapacity in the benefi- ciaries, in others on the ground of remoteness or vio- V. Hempstead, id. 581 (support of poor of town too indefinite) ; Hol- land V. Alcock, 108 N. Y. 312 ; In re Hoffen, 70 Wis. 522 ; Children's Aid See. V. Johnston, 58 Md. 139 ; Powell v. Hatch, 100 Mo. 592. See Bird V. Marklee, 144 N. Y. 544. 1 McHugh V. McCole, Sup. Court, Wisconsin, 1897; Fosdick v. Hempstead, and other cases just cited. 2 McHugh V. McCole, supra; Holland v. Alcock, 108 N. Y. 313. 3 Sherratt v. Mouutford, L. R. 8 Ch. 928, 931 ; lu re Fish, 1894, 2 Ch. 83, 85. SECONDARY CONSTRUCTION: CLAUSES. 229 lation of the rule against perpetuities.^ But more commonly gifts to such bodies are held valid where they do not contravene the rule against perpetuities, as they would if they were to a body to he incorporated unless within the period prescribed by such rule.^ If, however, the gift is to a specified corporation, as a matter of sub- stance, and that body is not in existence, or cannot take the gift at the testator's death, the gift fails. ^ Omitting the name of the trustee of a trust is not a case of uncertainty. Equity will not allow a trust to fail for want of a trustee named. When omission of land, for instance, is devised for a public tmstee. charity, and no trustee is named, the testator's heir takes in trust for the charity, or equity will appoint a trustee.* Thus far of certainty of object. Next, of certainty of subject. CERTAINTY OF SUBJECT: REPUGNANCY. What is called the doctrine of repugnancy makes one of the chief topics under this head. This doctrine relates to cases in which a clear gift of property is Doctrine of followed by words repugnant to or incon- repugnanc}'. sistent with the interest so given, and puts an end to 1 See Barnum c. Baltimore, 62 Md. 275 ; Methodist Church v. Clark, 41 Mich. 7.30 ; Little v. Willford, 31 Minn. 173 ; White v. Howard, 46 N. Y. 144 ; Rhodes v. Rhodes, 88 Tenn. 637 ; Mong v. Ronsh, 29 W. Va. 119. 2 Tilden v. Green, 130 N. Y. 29, 47; Seda v. Huhle, 75 Iowa, 429; Dascomb v. Marston, 80 Maine, 223; Lilly v. Tobbein, 102 :\Io. 104; Gray, Perpetuities, §§ 608 et seq. See Lougheed v. Dykeman Church, 129 N. Y. 211, 215. 8 Stratton v. Physio-Medical College, 149 Mass. 505; Bullard v. Shirley, 153 Mass. 559. * Missionary Soc. v. Chapman, 128 Mass. 265; Sohier v. Burr, id. 221 ; Fellows v. Miner, 119 Mass. 541, 544. 230 THE LAW OF WILLS. the uncertainty by cutting off the later repugnant words; thus furnishing another limitation to the rule that the later of two inconsistent clauses must prevail. The fol- lowing may be stated as typical cases : — If an estate in fee-simple absolute is given to a man, followed by language inconsistent with the existence, as by taking away the legal incidents, of such an estate, that language must be disregarded so far as it might affect the absolute estate given. In other words, it is repugnant to the gift, and is void.^ Thus, ^ I give and devise to my wife and her heirs all the rest and resi- due of my real estate. But on her decease the remainder thereof I give and devise to my said children or their heirs respectively, to be divided in equal shares between them.' Applying the rule, the testator's widow takes the fee-simple in the residue ; the gift over in remainder is void for repugnancy.^ And so in general of a gift over of ' what remains ' after an absolute gift.^ A similar case would arise if a testator should give an estate to A absolutely, but then declare that if A should sell the property, he should give a certain sum out of the proceeds to B; the latter provision would be void.* And so if a testator, giving his property to trustees upon cer- tain trusts, should direct that a sum of money, of which 1 Foster v. Smith, 156 Mass 379, 381 ; Joslin v. Ehoades, 150 Mass. 301, 303 ; Collins v. Wickwire, 162 Mass. 143, 144 ; Van Home v. Campbell, 100 N. Y. 287 ; Taylor r. Brown, 88 Maine, 56; Mitchell v. Mitchell, 77 IMaine, 423 ; Benz v. Fabian, 54 N. J. Eq. 615 ; Wilson v. Wilson, 46 N. J. Eq. 321 ; Zillmer r. Landguth, 94 Wis. 607; Conger r. Lowe, 124 Ind. 368 ; Mulvane v. Rude, 146 Ind. 476 ; Potter v. Couch, 141 U. S. 296. 2 Mitchell V. Mitchell, supra. See Taylor v. Brown, supra ; Mul- vane V. Rude, supra ; Bradley v. Carnes, 94 Tenn. 27. 3 Mulvane v. Rude, 146 Ind. 476, 482, and cases cited; also cases supra. 4 Li re Elliot, 1896, 2 Ch. 353. SECONDARY CONSTRUCTION: CLAUSES. 231 his sons aloue were to have the benefit, should be invested for his sous on their attaining majority, the sum to be applied by the trustees as they might think fit, this latter clause would be treated as repugnant to the benefit.^ The like has been held true of language inconsistent with a clear gift of a life estate, or, indeed, of any other clearly defined interest.^ Thus, where a dis- j^^nguage in- tinctly expressed life estate is given, the consistent with J i- =" gift of life es- fact that the testator has added a power of tate : power of disposal of the fee-simple will not of itself '"P"*^ enlarge the gift; it will merely add a power.^ It makes no difference, according to the general view, whether 1 In re Johnston, 1894, 3 Ch. 204, Stirling, J. : 'I have no doubt that the discretion was intended to be conferred by the testator for most excellent reasons . . . ; but it does seem to me that it is really an attempt by the testator to fetter the enjoyment by a person of a benefit to which he has become absolutely entitled under the will.' Fettering property after the legatee or devisee has reached majority, is similarly treated in England. Harbin v. Master man, 1894, 2 Ch. 184, 188; Weatherall v. Thornburgh, 8 Ch. D. 2G1, 269, 270; Gosling v. Gosling, Johns. 265. In this connection certain cases of ' spendthrift trusts ' so- called, may be noticed, merely to distinguish them as standing upon a footing of their own. In some States property may be given in trust for a person upon the footing that the property shall be exempt from claims of creditors of the cestui que trust, even though no provision is made that the estate shall cease or go over to another upon attempted alienation or upon t!ie insolvency of the cestui que trust. Broadway Bank v. Adams, 133 Mass. 170; lasigi v. Shaw, 167 Mass. 328 ; Part- ridge V. Cavender, 96 Mo. 452 ; and otlier cases. See Van Osdell v. Champion, 89 Wis. 661, 665 ; Bigolow, Fraud, ii. 222. The doctrine has been much and it seems justly criticised. 2 Stuart V. Walker, 72 Maine, 145. 3 Mulvane i-. Rude, 146 Ind. 476, 483; Giles r. Little, 104 U. S. 291 ; Glover v. Stillson, 56 Conn. 316; In re Cashman, 134 111. 88; Jenkins t\ Compton, 123 Ind. 117 ; Stuart v. Walker, 72 Maine, 145; Copeland v. Barron, id. 206 Chase v. I.add, 153 Mass. 126; Kent r. Morrison, id. 137 ; Logue v. Bateman, 43 N. J. Eq. 434 ; Rhodes v. Shaw, id. 430. See Josliui;. Rhoades 150 Mass. 301, 303. ' To be used 232 THE LAW or WILLS. the estate is real or personal.^ But many authorities, especially in regard to personalty (to which the doctrine ■would perhaps more easily apply), look upon the power of disposal, if broad enough, as raising the life estate to an absolute one, assuming that the language of the will is satisfied by such a construction.^ Accordingly it is laid down in many States that if a gift, in terms or by implication for life, is followed by an absolute power of disposal, in terms or by implica- tion,^ in the legatee or devisee, to the use of the first taker, the power of disposal is deemed to coalesce with the life estate, the two together thus constituting an absolute interest.^ The result is, that any gift over, as of ' what remains ' after the death of the life tenant, is void for repugnancy.^ This doctrine has been applied to a case in which there was a gift for life, without lia- bility to account, with a gift over of what might remain, and a general power of disposal (for the benefit of the life tenant); the gift over accordingly being void.^ and enjoyed ' by the life tenant adds nothing to the interest. In re McDougall, 141 N. Y. 21. 1 Logue V. Bateman, supra. 2 Weed V. Knorr, 77 Ga. 636; Van Gorder v. Smith, 99 Ind. 404 (personalty) ; Kendall v. Kendall, 36 N. J. Eq. 91 (personalty) ; Gaven V. Allen, 100 Mo. 293, and other cases infra. 3 Meacliam v. Graham, 98 Tenn. 190. * Mercnr's Estate, 1.52 Penn. St. 49; Dillon v. Falloon, 158 Penn. St. 468 ; Farisli v. Wayman, 91 Va. 430 ; Hovey v. Walbauk, 100 Cal. 192. See Wolfer v. Llemmer, 144 111. 554, where the estate devised was, by one clause, in terms a fee, with power of disposal. See Ilensler V. Senfert, 52 N. J. Eq, 754, 757; Beiiz v. Fabian, .54 N. J. Eq. 615 ; Hale V. Marsh, 100 Mass. 468. 469. But in some States the first taker would take absolutely only wlien the gift to him was, not for life, but undefined in extent. Benz v. Fabian, supra ; Sillcocks v. Sillcocks 50 N. J. Eq. 24, 26. s Same cases. ^ Bolman v. Lohman, 79 Ala. 63. SECONDARY CONSTRUCTION: CLAUSES. 283 But it will often be found that the supposed ' absolute power' is not absolute; and if it is not, of course no absolute interest has been given. ^ It will probably be found that it is not full power, to be exercised in any mode or for any and every purpose, for the sole use and benefit of the life taker, even though one part of the language may purport to give ' full power ' or ' absolute power ' of sale. Indeed, though ' full ' or ' absolute ' power of disposal be given without qualification, still, as by the preceding language a definite life estate only was given, it is natural to infer that this is the para- mount thought in the testator's mind ; v/hile the power of disposal, though called ' absolute,' is given only to enable the taker to enjoy more fulh' the benefit of the life estate, as, for instance, by changing its form at will.^ A fortiori is this the case where the power amounts to nothing more than authority to dispose of the remainder as a separate interest.^ The result is that, except in cases in which a clear absolute power of disposal is given to the use of the first taker, the power will not raise the life estate to an abso- lute one, and any gift over, such as of ' what remains,' 1 See In re Proctor, 95 Iowa, 172; Chase v. Ladd, 150 Mass. 126, 128; Kent v. Morrison, id. 137, 139; Collins i;. Wickwire, 162 Mass. 143; Burleigh v. Clough, 52 N. H. 267; Ramsdell v. Ramsdell, 21 Maine, 288, 293 ; Kent v. Armstrong, 2 Halst, Ch. 637 ; Benz v. Fabian, 54 N. J. Eq. 615, 618, 619. See Sillcocks v. Sillcocks, 50 N. J. Eq. 24. 2 Compare Welsh v. Woodhurj', 144 Mass. 542. For that reason it wonld not be a case within the rule that of two inconsistent clauses tlie later shall prevail ; though the gift might be enlarged where the power of disposal was given afterwards in an independent clause or in a codicil, so as plainly to show a change of mind. Tliis would not be a case of repugnancy, but a new gift. 3 Collins V. Wickwire, 162 Mass. 143, 144. See Baker v. Thompson, id. 40. 234 THE LAW OF WILLS. is valid. ^ And in some States the gift of an interest, if expressly declared to be for life, will not be raised by coalescence or otherwise to an absolute interest by any mere power of disposal, however large ; the added power of disposal being considered to be a separate and dis- tinct gift, having no effect upon the life estate.^ The first gift will not be treated as absolute in such States unless it was undefined.^ The rule in both of these particulars applies as well to gifts of personalty as to gifts of realty.* The rule of repugnancy applies to cases in which an absolute gift in the first instance is followed by a direc- Eepuo-naut ^^^^ ^^^* *^® devisee or legatee shall hold the triists. property in trust for any purpose or to any extent; the trust must be disregarded. Thus the testator gave property to his wife ' absolutely, with full power for her to dispose of the same as she may think fit for the benefit of my family, having full confidence that she will do so ' ; and the wife was held entitled to take free of any trust. ^ Nor is the gift to a devisee or legatee ' free and unfettered ' to be cut down by language other- wise of trust.® Nor where, after a gift of real and per- sonal estate in fee simple to younger sons, the testator adds : ' I assume that my eldest son will understand and ^ A fortiori where the only ground for supposing such a power is inference from the fact that ' what remains ' at the death of the life tenant is given to another. Bramell v. Cole, 136 Mo. 201, 212. 2 Mulvane v. Rude, 146 Ind. 476, 483 ; Evans r. Folks, 135 Mo. 397 ; Beuz t'. Fabian, 54 N. J. Eq. 615, 618. Secus where tlie life estate is given, not expressly, but by implication. Id. ; Downey v. Borden, 7 Vroom, 468. See Wilson v. Wilson, 46 N. J. Eq. 321. 3 Benz V. Fabian, supra ; Sillcocks v. Sillcocks, 50 N. J. Eq. 24, 26, 27 ; Evans v. Folks, supra. * Benz V. Fabian, supra. ^ In re Hutchinson, 8 Ch. D. 540. See Lambe v. Earaes, L. R. 6 Ch. 597. 6 Giles V, Anslow, 128 111. 187 ; Meredith v. Ileneage, 1 Sim. 542. SECONDARY CONSTRUCTION: CLAUSES. 235 appreciate my reasons for giving whatever property I may have at ni}' decease to his younger brothers, and that they on their part will not fail to do for him and his family all in the circumstances the truest fraternal regard may require them to do.' This created no trust for the eldest son. It is true that the words of supposed trust in the cases just stated would not now, by the better rule, be regarded as sufficient for the purpose,'^ but the result would be the same though the most apt and unmistakable words of trust were used. Trusts are never excepted from the rule of repugnancy. Where the purpose of the gift is to benefit the donee alone, it is perhaps still more clear that an added ' trust ' must be rejected. Thus a bequest to A of moue}-, with which he is directed by the will to buy a farm for him- self, or to start himself in business, is an absolute be- quest. A may do as he likes with the money. ^ The ground of this is, that the courts will not compel a per- son to do a thing which the next moment he may undo; if the donee is to buy a farm with the money, he may imme- diately sell the farm and so have the money absolutely. The foregoing remarks may seem to conflict with the rule elsewhere laid down that the courts will diligently endeavor to ascertain the meaning of the Ruleofrepug- testator, however unskilfully or ignorantly "iXTflnten- expressed. But the conflict is only seem- tion. ing, for the rule, as fully expressed, is that the courts 1 Rose V. Porter, 141 Mass. 309. See Sturgis v. Paine, 146 Mass. 354; Davis c. Mailey, 134 Mass. 588; Wood o. Cox, 2 Mylne & C. 684, reversing 1 Keen, 317 ; Parnall v. Parnall, 9 Ch. D. 97. But see Ware (or Wace) v. Mallard, 21 L. J. Cli.355, criticised iu Jarmau, 360. 2 Ante, p. 151. 8 Rogers's Estate, 179 Penn. St. 602. How strong the position of the donee in such cases is may he seen in a case like Stokes v. Cheek, 28 Beav. G20, or In re Cameron, 26 Ch. D. 19. 236 THE LAW OF WILLS. will permit the testator to have his way in the disposi- tion of his property, provided, or in so far as it is con- sistent with law ; and one of the rules of law, applicable alike to literate and illiterate, is that an added clause repugnant to a clear gift shall not affect the gift. This rule is not a rule of intention, at least not primarily; the question raised by it is simply whether there is a clear gift, and then whether there is language inconsis- tent with the same. This question settled, there is no inquiry what the testator intended — the rule of repug- nancy is applied. Another rule of frequent application in questions of uncertainty of subject is, that where an interest is given Clear gift uot in clear and decisive language, that interest exc%rb/ckar ^^ ^^^ to be destroyed or cut down except language. by language as clear and decisive; ^ though it is not necessary in trust estates that the language should in express terms cut down the gift — inference, if clear and decisive, will be effectual.^ But though the estate clearly given may be cut down, it cannot be done in the case of a clear gift in fee absolute, unless the plain intent is to cut down the estate as distinguished 1 Thornhill v. Hall, 2 Clark & F. 22 ; Webb v. Lines, 57 Conn. 154 ; Yost V. McKee, 179 Penn. St. 381 ; Heck's Estate, 170 Tenu. St. 232; Bailey v. Sanger, 108 Ind. 264; Kimble ?;. White, 50 N. J. Eq. 28; Hoxsey v. Hoxsey, 37 N. J. Eq. 21 ; Ben.son v. Corbiu, 145 N. Y. 351, 359 ; Washbon v. Cope, 144 N. Y. 287, 297 ; In re McClure, 135 N. Y. 238, 243 ; Freeman v. Coit, 96 N. Y. 63 ; Eoseboom v. Roseboom, 81 N. Y. 356 ; Gaskins v. Hunton, 92 Va. 528 ; Collins v. Collins, 40 Ohio St. 353; Gillmcr v. Daix, 141 Penn. St. 505; Judevine ^j. Jiulevinc, 61 Vt. 587. See Langdale v. Briggs, 8 DeG. M. & G. 391, 429 ; Leslie v. Eothes, 1894, 2 Ch. 499, 515. '^ See Doe v. Davies, 1 Q. B. 430 ; Poad v. Watson, 6 VA. & B. 606 ; Collier v. Walters, L. R. 17 Eq. 252 ; In re Townsend, 1895, 1 Ch. 716, 721 ; as to cutting down the fee in trustees. SECONDARY CONSTRUCTION: CLAUSES. 237 from imposing restraint upon the use of the estate already well given.^ That distinction should be clearly noticed. On the other hand, where the estate or interest given is not clearly defined by the testator, there is a case for construction. Thus, in a case of a devise to a man and his heirs, if still the language does not expressly or by plain implication make it a fee simple absolute, by giv- ing a legally absolute power of disposal to the devisee in fee, a limitation over, by way of executory devise, will be good. That is, the fee will be treated as falling short of being absolute, and the limitation over thus saved from the rule of repugnancy.^ Or the fee simple may be fol- lowed by language converting the gift, so far beneficial, into a trust, ^ or otherwise cutting it down.* That would be true though clear language of an absolute gift were first used.^ This, however, is only saying that the tes- tator has the right to give any estate he can ; it is a very different thing from saying that, having given a clear 1 Bellas's Estate, 176 Penn. St. 122, 130; Good v. Fichthorn, 144 Penn. St. 287. See Hoxsey v. Hoxsey, supra ; Sherburne i-. Sischo, 143 Mass. 437 ; Wead v. Gray, 78 Mo. 59. 2 Howard v. Carusi, 109 U. S. 72.5, 730 ; In re McClure, 136 N. Y. 238, 243 ; McClellan v. Larchar, 45 F. J. Eq. 17 ; Shalters v. Ladd, 141 Penn. St. 505. See also Copeland v. Barron, 72 Maine, 206 ; Wellford V. Snyder, 137 U. S. 521 ; Wicker v. Ray, 118 III. 472. 3 See Giles v. Anslow, 128 111. 187 ; Rose v. Porter, 141 Mass. 309 ; Hoxsey v. Hoxsey, 37 N. J. Eq. 21. * See, e. g.. In re Pinhorne, 1894, 2 Ch. 276, Chitty, J. : ' Following the most teclinical method of constrnction, I say that the proviso and the declaration cut down the apparent absolute interest, as given in the first instance.' 5 A gift to trustees and their heirs is only prima facie a gift to them in fee, and the presumption may be overturned merely by impli- cation, as where the devise to them is for purposes to last only for a certain time ; in such a case the devise will be cut down accordingly. Collier v. Walters, Law Rep. 17 Eq. 252 ; Doe v. Davies, 1 Q. B. 430; In re Townsend, 1895, 1 Ch. 716, 721. 238 THE LAW OF WILLS. estate, he can take from the devisee or legatee the benefit, in whole or in part, which belongs to it. The rule permitting an executory devise in the case just stated calls for a remark. A gift to a man and his Absolute gift heirs forever, to repeat the rule, may be fol- executOTv"de- lo^ed by an executory devise; while, if a vise. gift of ' what remains ' at the death of the devisee in fee follows, that will be void.^ The explana- tion appears to be, that the executory devise constitutes part of the description of the estate given to the first taker, thus preventing that estate from being, what naturally it is, absolute; while in the second case there is nothing in the description to prevent it from being absolute — hence it is absolute, and the added words of ' what remains ' are therefore repugnant to the gift and void. It is laid down, in the midst of considerable conflict of authority, that the doctrine of repugnancy has no appli- Gifts which cation to gifts which fail, as by the death the rule Tf^ ^^ Unmarried of a legatee or devisee in the repugnancy. lifetime of the testator. The doctrine, it is declared, does not come into operation until somebody takes, and it is only those limitations which defeat the interest some one takes that are void, on the ground that they are inconsistent with what is given to him.^ Thus a testator makes a gift of personalty to A in tail (which is in law an absolute gift) with remainder to B. The first legatee dies unmarried in the lifetime of the tes- tator, and the gift to him fails accordingly; ^ the second legatee survives the testator. It is held that B is entitled ■'o 1 Joslin V. Rhoades, 1.50 Mass. 301. 2 Lindley, L. J., ia lu re Lowman, 1895, 2 Ch. 348, 358. 2 See chapter xxvii. SECONDARY CONSTRUCTION: CLAUSES. 239 to the gift, and not the residuary legatee upon the foot- ing that the gift to A lapsed.^ The principle was, that where there are successive limitations of personal estate in favor of several persons absolutely, the first of them who survives the testator takes absolutely, although he would take nothing if any other legatee had survived and taken; in other words, the failure of the earlier gift is to accelerate, and not to destroy, the later gift.2 Thus far of repugnancy. Certain other rules or doctrines relating to certainty of subject will now be considered. CERTAINTY OF SUBJECT CONTINUED: VARIOUS CASES. We have spoken of mistake as a matter of either object or subject alike. Some further remarks may now be made in regard to the same thing in its rela- Mistake in des- tion only to the subject of disposition, taking 'g"atJon of •^ '^ 1 ' o property: sinii- for particular consideration mistake in the lar property. will in the designation of property. A kind of mistake of subject, of not infrequent occur- rence, is where a testator makes a specific gift of per- sonal property, having no such property, but having other property to which the description would perfectly apply but for the misnomer, especially where the mis- nomer is itself in part a correct name for the property. The will is deemed to relate to the similar property which * In re Lowman, supra ; Mackinnon v. Peach, 2 Keen, 555 ; Donn V. Penny, 1 Mer. 20 ; Brown v. Higgs, 4 Ves. 708. Contra, Harris v. Davis, 1 Colly. 416 ; Hughes v. Ellis, 20 Beav. 193 ; and other cases. 2 Lindley, L. J., ut supra. This doctrine conforms more to the testator's intention, and accordingly appears preferable to the con- trary. 240 THE LAW OF WILLS. the testator has. A testatrix owning debenture stock in the Grand Trunk Railway of Canada, but having no shares therein, gave to a certain person her ' shares in the Great Western Trunk Railway of Canada.' There was no railway of that name, but there had been a Great Western Railway of Canada, which some eleven years before the will was made had been taken over and united with the Grand Trunk Railway of Canada. Here, then, was a double mistake, assuming that the testatrix meant her debenture stock; but still it was held that that stock passed.^ The gift of an indefinite amount, part, or share, must in accordance with what has already been said be de- Gift of indefinite cliW'etl void, unless the will furnishes the amount or part, nieans of ascertaining the sum intended. The whole will should be examined, if necessary, to remove the doubt. Thus a gift to A of a ' reasonable ' sum of money, without any indication to what the word reasonable relates, would be void; while if it were a gift of a reasonable sum to remunerate the legatee for certain services or for his trouble -in a certain matter, it would 1 In re Weeding, 1896, 2 Ch. 364, North, J. : 'The will thus ex- pressed clearly shows an intention to pass something. ... I quite agree that if tlie testatrix had had any shares in one of the companies, debenture stock of that company could not pass, because there would have been something properly described by the gift, and there would have been no reason for giving any extension to the meaning of the words. But here words are used which do not accurately describe anything which the testatrix ever had. No doubt she intended to pass something, and there is nothing except this debenture stock on which the gift can operate.' See In re Bodwin, 1891, 3 Ch. 13.5 ; In re Nottage, 1895, 2 Ch. 6.57. Compare the like mistake of subject. In re Fish, 1894, 2 Ch. 83. A testator may by a residuary clause dispose of property which he mistakenly supposes that he has already disposed of by the will or otherwise. In re Bagot, 1893, 3 Ch. 348. SECOND AEY CONSTRUCTION: CLAUSES. 241 be good, the court simply inquiring what would be reasonable in such a case.^ In like manner a gift of ' part ' of a larger quantity would be void for uncertainty; but if the 'part' be definite the gift will be good though the ^.^ ,, interest be composed of specific parts and of iarp:er no direction is given in the will which of l"^"'^- such parts are given. The legatee or devisee in such a case has the right, it is held, to elect the part he will take. Thus in a devise of two acres out of four lying together, the devisee may select any two acres he pre- fers.^ So a devise of two out of three houses owned by the testator in a particular place gives the devisee the right to choose any two.^ But a devise of Whiteacre, when the testator has two estates of that name, does not, perhaps, give the devisee an election; on the contrary, the devise is void unless the ambiguity is removed by competent evidence.^ With reference to the last example, however, it would not be safe to draw any broad inference. Thus it would not be safe to say that a gift of funds invested in what 1 Jackson v. Hamilton, 3 Jones & L. 702. 2 Marshall's Case, Djer, 281, note; Jarnian, 331. 3 Tapley v. Eagleton, 12 Ch. D. 683. 4 Kichardson v. Watson, 4 Baru. & Ad. 798. But some doubt was cast upon this case in Asten v. Asten, 1894, 3 Ch. 260, 263, Homer, J., in regard to the application of the princijjle to the particular facts of the case. The principle, which was supported, was thus stated by Mr. Justice Romer : ' If a will shows that a testator intends to give a par- ticular property to a legatee, and, owing to the testator having several properties answering the description in the will of the particular property given, you are nnable to say, either from the will itself or from extrinsic evidence, which of the several properties the testator referred to, then on principle the gift must fail for nncertainty.' See also Duckmanton v. Duckmanton, 5 Hurl. & N. 219 ; Tapley v. Eagle- ton, 12 Ch. D. 683. 16 242 THE LAW OF WILLS. is described as ' a Swedish mortgage ' must be void for uncertainty if it appears that the testator had more than one such mortgage. It has been held in such a case that all the testator's Swedish mortgages passed.^ But that view was helped by the context. In some cases the gift of ' part ' may amount to a gift of the whole, for that may be the reasonable interpreta- tion of the gift. Thus, where a testator Gift of part . f , . \ , sometimes a gave permission to his wife to appropriate gift of wiiole. absolutely to herself such parts' of his plate as she desired, the gift was held to convey to the wife the right to take the whole of the testator's plate. ^ But where selection appears to have been intended, there can be no taking of the whole. ^ Another rule relating to certainty in the subject of gift is, that where the gift is of a general or indefinite nature, Gift indefinite SO as to give occasion for construction, the ^^nwo,?!>f!ib- addition of a general power of disposal is posal. to be treated as indicating that the testator meant to give the property absolutely.* Hence any gift over of ' what remains ' will be void. Another rule deserving of mention is this : If the lan- guage of gift is doul)tfnl, the law leans to a construction „ „ . wliich will distribute the estate as conform- rollowmg gen- eral ruius of ably to the general rules of inheritance as 111 iiPi*it"iinop possible consistently with the testator's lan- 1 Richards v. Patteson, 15 Sim. 501. See also Sampson v. Samp- son, L. R. 8 Eq. 479. 2 Arthur v. Mackinnon, 11 Ch. D. 385. 3 Kennedy i". Kennedy, 10 Hare, 4.38. Further see Davis v. Davis, 1 Hem. & M. 255 ; Reid v. Reid, ^0 Beav. 389. * State V. Smith, 52 Conn. 557 ; Henderson v. Blackburn, 104 111. 227 ; Logue v, Bateman, 43 N. J. Eq. 434 ; Rhodes v. Shaw, id. 430 ; Benz V. Fabian, 54 N. J. Eq. I ; ante, p. 232. SECONDARY CONSTRUCTION: CLAUSES. 243 guage.^ Still the courts will endeavor to sustain the gift, and if there is doubt whether a valid gift has been made, they will seek so to coustrue the will as to make the gift good. A further rule is, that in case a clause in a will is obscure or ambiguous, words which manifest an inten- tion to dispose of the whole estate of the passing of fee testator are to be treated as favoring the favored, construction which will pass a fee.^ And where a will contains no limitation over after a gift of the kind, that fact is to be weighed in support of the construction mentioned.^ Ambiguity in the amount of a gift is a not uncommon instance of uncertainty of subject. Such a case is met by a rule that the will should be so construed . ^. . '' Anibiguitv of as to give the greatest benefit to the legatee amount: or devisee. Thus a gift of a sum ' not ex- ^^^^ ^^ ceeding ' £100 will be construed as giving the legatee £100; and gift of ' £50 or £100,' will be construed in the same way.* A bequest will not be declared void for uncertainty merely because the amount is differently stated in different parts of the will, if it appears upon the whole that one of the statements was a mistake.^ 1 Francis Estate, 75 Penu. St. 220 ; Smith's Appeal, 23 Penn. St. 9. 2 Huber's Appeal, 80 Penn. St. 348 ; Geyer v. "Wentzel, 68 Penn. St. 84. 3 Huber's Appeal, supra. * Compare Ocldie v. Brown, 4 DeG. & J. 179, gift of '£3000 or thereabouts ' to be raised by accumulation of annual income, sustained, though a last dividend might raise the gift slightly above the sum named. Bruce, L. J., dissented. 6 Phillips V. Chamberlaine, 4 Ves. 50; Jarman, 329. 244 THE LAW OF WILLS. CHAPTER XIX. SECONDARY CONSTRUCTION: CLAUSES. VESTED AND CONTINGENT INTERESTS. A TESTATOR may bestow upon his devisee or legatee a vested or a coutingent interest. When is the interest vested, when is it contingent? The answer Definitions. , , . , . . , appears to be, that an interest is vested, as distinguished from contingent,^ either when enjoyment of it is presently conferred, or when, if enjoyment is post- poned, the time of enjoyment will certainly come to pass. In other words, an estate is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment. ^ If the rujlit of enjoyment is made to depend upon some event or condition which may or may not happen, or be performed, or if, the case of a gift to take effect in future, it cannot be ascertained in the meantime whether there will be any one to take the gift, the interest is contingent.^ The following are illustrations: A testator devises a T„ » ^. farm to A for life, and after A's death to Illustrations: ' {rifts at major- B in fee. B's interest, though postponed in wife of a future enjoyment of the res itself, is vested, be- P**^'"*"' cause the time of enjoyment is certain to 1 The term 'vested ' is sometimes used in a broader sense, in which it is not contrasted necessarily with ' contingent.' Thus we sav that a certain person has lars^e vested interests in some railway; we mean that lie has large property interests in the railway, or much money invested in it. The word is used in other senses also. See Taylor v. Frobisher, 5 DeG. & S. 191 ; Armvtage v. Wilkinson, 3 App. Cas. 355. 2 Kent, iv. 202. 3 Fairfax's Appeal, 103 Penn. St. 106 ; Winslow v. Goodwin, 7 Met. 363 ; Farnam v. Farnam, 53 Conn. 261 ; Kent, iv. 206. SECONDARY CONSTRUCTION: CLAUSES. 245 come to pass. But suppose that the testator clevises the farm to A m case he shall attain tweuty-one years of age (without any gift over). Now A's interest is con- tingent, because the right of enjoyment of it is made to depend upon an event which may or may not happen. Or suppose that the testator devises the farm to A for life, but in case he dies under twenty-one then over to B. B's interest is contingent for the same reason. Or, again, suppose that the testator devises the farm to A for life, and after his death to the wife of such person as may then be the pastor of the first church in the town of B. The ulterior interest will be contingent because it cannot be ascertained during the life estate of A whether there will be any one who can take the gift. Another and not uncommon illustration may be seen where a testator gives real or personal estate to A, and in case of his death to B. Now as the death „.. Gift to A, and of A is certain to happen, the testator, by in case of his ^, A £ J.- i • c death to B. using the words of contingency in case of his death,' must refer to some other event — some event which is uncertain — unless the language of the will indicates a different intention. Accordingly the con- struction applied to such a gift is that the ' death ' re- ferred to is death in the lifetime of the testator or before the period of distribution or payment, according as the gift is immediate or to take place in futuro.^ The whole clause must be examined to see which of the two points of time is to be taken, but in either case the gift is contingent. 1 Jarraan, 1564, 1569; Jackson's Estate, 179 Penn. St. 77, 83; Lovass V. Olson, 92 Wis. 616; In re Bacr, 147 N. Y. 348, 354; In. re Denton, 137 N. Y. 428 ; Dawson v. Scliaefer, 52 N. J. Eq. 341, 344 ; Brown v. Lippincott, 49 N. J. Eq. 44, 46 ; Crane i'. Bolles, id. 373, 381 ; Britten v. Thornton, 1 12 U. S. 526 ; Jones v. Beers, 57 Conn. 295 ; Grossman v. Field, 119 ]Mass. 170; Burton v. Conigland, 82 N. C. 99; Ewing V. Winters, 34 W. Va. 23. 246 THE LAW OF WILLS. The siouificauce of this distiuctiou between vested aud Significance of coutiugeut interests may be seen in such facts vifs\'inff'pre- ^^ ^^^^ Contingent estates are within the i^rred. rule against perpetuities, and that they are not descendible, even in virtue of statute, where the existence of the devisee or legatee makes part of the con- tingency,^ and hence are subject to lapse. ^ Now the courts are unwilling to declare that a gift made by a testator must fail, or even be in suspense,^ and hence they have laid down the rule that the vesting of estates is to be favored, in other words, that an estate will not be declared contingent unless the language of the will requires; ^ and to make that rule efficient they have adopted certain rules of construction for cases of uncertain language; some of them having relation to devises, others to legacies. DEVISES. One of these rules of construction is that where a tes- tator has created a particular estate, aud then has gone Postponing on to dispose of the ulterior interest ex- vestmg'of es- pressly in aa event which will determine the tate favored. prior estate, the words descriptive of such event, occurring in the ulterior gift, will, if reasonably 1 Winslow V. Goodwin, 7 Met. 363. 2 See chapter xxvii. 3 Upon a kindred point it is laid down, that whether or not a testa- tor can effectually cause a vested gift to be divested before it has actually reached the hands of the legatee, an intention to do so ought not to be attributed where the words are not clear. ' And in cases where the words are susceptible of such an interpretation, the court has held that the period over which the operation of a divesting clause of this kind is to extend ought not to be held to continue beyond that at which the legacy is de jure receivable. The courts in such cases favor early vesting.' In re Sampson, 1896, 1 Ch. 630, 63."), Stirling, J. * Hale V. Hobson, 167 Mass. 397, 400; Knowlton i\ Sanderson, 141 Mass. 323; Marsh v. Hoyt, 161 Mass. 459; Peck v. Carlton, 154 Mass. SECONDARY COXSTEUCTIOX : CLAUSES. 247 possible, be construed as referring merel}' to the time of the determination of the possession or enjoyment under the prior gift, rather than as intended to postpone the vesting.^ Accordingly where a remainder is limited ' in default * or ' for v,"ant ' of the object or objects of the preceding limitation, this is construed to mean, upon the failure or determination of the prior estate, rather than, by taking the words literally, in case of the failure of the same. The ulterior estate thereby becomes vested, to take effect in enjoyment directly upon the termination of the prior estate. A testator devised lands to the first and other sons of A successively, and ' in default ' of such sons, to A's daughters. The gift to the dauahters is a vested devise in remainder, supposing that A has a son or sons; if A should have no sons, of course the daughters would take, by the very terms of the gift.^ A similar result is seen in cases in vrhich a testator has given to A a clear estate, as for life, and then after- wards, in grafting a remainder upon this qj^^ ^^^ ^He estate, has used words which appear to make remainder ap- , . ^ . . , , parenllv de- the gift in remainder dependent upon the pendent accord- prior gift's taking effect. Here, too, the '"^■^' construction adopted is to treat the words in question 231, 233; Gingrich v. Gingrich, 146 Ind. 227, 229; Stokes v. Weston, 142 N. Y. 433 ; Bowditch v. Ayrault, 138 N. Y. 222 ; Nelson v. TJusseU, 135 N. Y. 137 ; Kimble v. White, 50 N. J. Eq. 28 ; Crews v. Hatcher, 91 Va. 378, 381 ; Chapman v. Chapman, 90 Va.409, 411 ; Woodman v. Woodman, 89 Maine, 128. 1 Sellers v. Reed, 88 Va. 377 ; Jarman, 756. The Court of Chan- cery has always opposed ' the postponement of vesting or possession, or the imposition of restrictions on the enjoyment of an absolute vested interest.' Lord Davey, in Wharton v. Masterman, 1895, A. C 186, 198. 2 Doe 0. Dacre. 1 Bos. & P. 250; s. c. 8 T. R. 112. Such words as ' from and after ' in a gift of remainder f(illowiug a life estate do not indicate any intention to make the remainder contingent. Kelson v. KusseU, 135 N. Y. 137, 140. See infra. 248 THE LAW or WILLS. merely as descriptive of the state of things when the remainder is supposed by the testator to take effect, and not as making the remainder contingent. A testator gave lands, after the death of his wife, to his son, and then provided that if his three daughters, or either of them, should overlive their mother and brother, they were to have the same lands for life, with remainder to others. It was held that this remainder was vested, not contingent upon the death of the mother and brother; the words merely referred to the commencement of the remainder.^ In another case a testatrix bequeathed a fund in trust for her sisters and their children ; after the deaths of her sisters and their children, the interest of the fund was to be paid to A for life, and from and after A's death, ' in case he should become entitled to such interest,' then to certain cousins. It was held, as before, that the gift to the cousins was vested, and net contin- gent upon the event of A's becoming entitled to the interest.^ The whole subject has been summed up from the bench, in substance, as follows: The true way of testing such Test ill such limitations as these is to raise the question, ^3*®s. Can the words which in form import contin- gency be read as equivalent to ' subject to the interests previously limited? ' Take the simplest case; a limita- tion to A for life, remainder to B for life, and upon the 1 Webb V. Hearing, Croke Jac. 415. 2 Pear.sall v. Simpsou, 15 Ves. 29. Sir Wm. Grant, JI. R. : 'It was doubtful whether A would live to become entitled [lie did not] to the intere.st. The te.statrix, giving the capital over after liis death, recol- lects that he may not live to take the interest ; but if lie does, she makes his death the period at which the cousins are to take. It is not a condition precedent, but fixing the period at which the legatees over shall take, if he ever takes.' See also Franks ?;. Price, 3 Beav. 182; s. c. 5 Bing. N. C. 37. SECONDARY CONSTRUCTION: CLAUSES. 249 death of B, if A be dead, then to C in fee. The limita- tion to C is apparently made contingent on A's dying in B's lifetime. Still, as the condition of A's death is an event essential to the determination of the interest before limited to him, the gift is to be read as if it were to A for life, remainder to B for life, and on B's death, sub- ject to A's life interest, if any, to C in fee. But to apply this principle, the condition upon which the limitation over is made dependent must involve nothing except what is essential to tbe determination of the interests before limited. For instance, if the limitation be to A for life, remainder to B for life, ' and if, at the death of B, A shall have died under the age of twenty-one,' or ' without children,' then to C in fee, here, in either case, room is left for contingency. The condition of A's dying in the first case under twenty-one, and in the second without children, is an event which may or may not have happened when the life estates in A and B are determined; and until it has happened, the limitation over is contingent, not in appearance merely, but actually. To such cases the principle would not apply. ^ Nor would the rule apply in any case against the intention shown by the will.^ A similar construction is applied to cases in which a gift over, apparently cutting down, in words of contin- gency, a prior devise, stands in opposition, ^., . . (lift over not m not to the prior devise, but to the event of opposition to the devisee's coming into possession of the ^""' ^^'^^' estate. The prior estate is not cut down. A testator 1 Sir "W. P. Page, V. C, in Maddison v. Chapman, 4 Kay & J. 719. So a devise to A when he reaches twenty-one, witli gift over if he does not reach that age, without reference to issue, and no provision for the devisee during minority, is contingent upon A's attaining majority. Sager v. Galloway, 113 Penn. St. 500. 2 Bowditch V. Ayrault, 138 N. Y. 222. 250 THE LAW OF WILLS. devised the residue of his estate, real aud personal, to his son A in fee simple. He then provided that the whole estate, real and personal, should remain in the hands of his executors and be managed for the benefit of A until he should attain majority, and that out of it A should receive an education and support until his majority, and then added : ' but if my said son A should die leaving no children, then ' the estate should go over to others. It was held that the gift to A was not cut down by the clause quoted, but that A took absolutely. ' The devise over stands not in opposition to the original devise, but to the event of the devisee's coming into possession.' In other words, the case is as if the devise' ran thus : ' I give the residue of my real aud personal estate to my son A, his heirs and assigns forever. I direct my executors to rent the real estate and to keep the proceeds thereof, together with the personalty, in- vested for the benefit of my son A until he becomes twenty-one years of age. And my will is, that upon his attaining twenty-one, my son shall come into possession of all his estate, real and personal, but if he die without children, then it shall go over.' ^ If, however, the ulterior estate is to arise upon a con- tingent determination of the prior interest, and the prior TT,. • -r. gift does, in fact, take effect, but is deter- Ultenor gift . . . contingent mined in a way different from that expressed by the testator, the ulterior gift is contin- gent and fails. ^ Thus a testator devised lands to A for life, remainder to A's sons, upon condition that A and his issue male should take a particular name; if he or 1 Van Houten i". Pennington, 4 Halst. Ch. 272, 745 ; Dawson v. Schaefer, 52 N. J. Eq. 341, 345 ; Patterson v. Madden, 54 N. J. Eq. 714, 721, 722. See to the same effect, Wurts v. Page, 4 C. E. Green, 365. 2 Frey i-. Thompson, 66 Ala. 287. SECONDARY CONSTRUCTION: CLAUSES. 251 they refused, the gift -was to be void, and the lauds go over aecordiug to further disposition made. A survived the testator, complied with the condition, and then died without issue. It was held that the limitation over did not take effect.^ Gifts to a widow and ' if she shall marry ' then to another, furnish another illustration of the favoring of vested interests. For such cases, to save ^.,. , ., VJlltS 10 \VluO>\, the ulterior gift, it is laid down that that but oyer ou gift shall be regarded as intended to take "^ ' effect upon the marriage of the widow, and not as being dependent upon the marriage. A testator devised to his wife for life, ' if she should not marry again, but if she should ' then that his son A should presently, after his mother's marriage, have the premises. The widow hav- ing died without remarrying, it was held that the son took a vested estate.^ The widow therefore in such cases takes an estate dur- ing widowhood, and the gifts over take effect as vested remainders. It may, however, appear that the testator actually intended that the ulterior estate should be dependent upon, and not begin with, the remarriage of the widow. If such was the plain meaning, the courts cannot help it.^ The distinction has been stated thus: Where the not marrying again is interwoven into the original gift, the testator, having thus created an estate during widowhood, must generally be considered, in 1 Amherst v. Donelly, 8 Vin. Abr. 221, pL 21 ; 5 Bro. Pari. Cas. Toml. 554. 2 Luxford V. Cheeke, 3 Lev. 125. So where the prior gift is to a young woman until she marries, or to A until he becomes bankrupt, then over. Eaton v. Hewitt, 2 Dru. & S. 184 (marriage) ; Etches v. Etches, 3 Dru. 441 (bankruptcy). 3 See Frey i-. Thompson, 66 Ala. 287; Meeds i;. Wood, 19 Beav. 215 ; Uuderh'ill v. Roden, 2 Ch. D. 494. 252 THE LAW OF WILLS. referring afterwards to the marriage, to describe the determination of that estate by any means, and hence the gift over is a vested remainder expectant thereon.^ But where the testator first gives a clear estate for life, and then grafts thereon a devise over to take effect on the marriasie of such devisee for life, the devise over is not to take effect unless the contingency happens.'^ Another of the rules of construction laid down in aid of the principle that the vesting of estates should be pre- Prior gift on its f erred is seen in certain cases in which the face contingent, p^ior gift is on its facc Contingent. Cases of gift to A if or when he attains, for instance, twenty- one, followed by an ulterior gift to another in case A should not reach the age named, furnish an example. In these cases the construction adopted is that the prior gift to A is by the gift over merely explained in nature, and not to be considered as contingent on A's living to attain twenty-one;^ though, as we have seen, the con- trary would be true if the gift were simpfy to A if or when he shall attain twenty-one * without further provision.^ 1 Browne v. Hammond, Johus. 210, 213 ; Pile v. Salter, 5 Sim. 411 ; Meeds v. Wood, supra. 2 Jarman, 760. 8 Boraston's Case, 3 Coke, 16, 19; Doe y. Ewart, 7 Ad. & E. 636; Doe V. Moore, 14 East, 601 ; Doe v. Nowell, 1 Maule & S. 327 ; s. c. 5 Dow, 202. See Roome v. Phillips, 24 N. Y. 465 ; Livingston v. Greene, 52 N. Y. 118 ; s. c. 6 Laus. 50 ; Engles's Estate, 167 Penu. St. 463, 465 ; Cowdin V. Perry, 11 Pick. .503, 508; In re Collier, 40 Mo. 287 ; Meyer V. Eisler, 29 Md. 32. It makes no difference in the con.»;truction whether any disposition is or is not made of the interest before A reaches the age named. Doe v. Moore, supra. * See Dawson v. Schaefer, 52 N. J. Eq. 341, 347. 5 Kingman i'. Harmon, 131 III. 171. Compare Gibbens v. Gibbens, 140 Mass. 102, as to the word ' then,' after a gift to a class. The gift over in these cases is considered as explanatory of the SECONDARY CONSTRUCTION: CLAUSES. 253 The same rule applies where the gift is to a class of persons. A testator devised lands to A. for life, and on his death to his children equally at the age ^.^_ , •^ Gift to class. of twenty-one, as tenants in common; but if only one child live to attain twenty-one, to him or her at twenty-one ; and if A died without issue, or such issue died under twenty-one, then over. It was held that the children took vested remainders.^ The event on which the prior gift appears to be made contingent may be associated with some other event without affecting the application of the rule. Association of . , , ^ 1 i J • c continjrencv A testator gave lands to certain persons tor with some other life, and at their death or the death of the event. one who lived longest, to A if he lived to attain twenty- one ; in case he died under twenty-one, and his brother B should survive him, then over. It was held that A took a vested interest.^ It seems, too, that the event upon which the estate goes over need not be the attaining any given age; if it be surviving the person who has the prior Event of sur- estate, the rule will apply. A testator de- "^i^orship. vised to his wife for life with remainder in part to his brother for life, and from and after the wife's death, subject to the brother's interest in the part, to A in fee if living at the death of the wife, but if A should die before the wife without leaving issue, then over. A, it was held, took a vested remainder.^ sense in which the testator intended tliat the interest of the devisee or legatee should depend on his attaining the specified age, namely, that at that age the interest should hecome absolute. Jarman, 767. 1 Doe ('. Nowell, 1 Maule & S. 327 ; s. c. .5 Dow, 202. 2 Bromfield v. Crowder, 1 Bos. & P. N. R. 313 ; 14 East, 604. 8 Finch V. Lane, L. R. 10 Eq. 501. 254 THE LAW OF WILLS. This part of the subject may be concluded with a remark which, in part, fell from the bench, that there is a long category of cases from early times « when,' ' as down to the present, in which such wo]'d8 soon as,' &c. t'j?jiu i (. j i j-i-- as if, when, as soon as, and a fortiori such as ' after ' and ' from and after,' ^ prima facie import- ing contingency,^ have been held from the context not to import contingency in the sense of a condition precedent to vesting, but to introduce a proviso or condition sub- sequent, operating as a defeasance of an estate vested.^ The authorities, in a word, clearly show that a remainder is not to be construed as contingent merely because the language of the testator literally or strictly taken makes it contingent, where the nature of the limitations affords ground to believe that the testator's language was not used with a view to suspend the vesting.* Still the favor shown to vested interests is never to be pressed so far as to defeat the intention of the testator;^ there is no re- straint upon the power of a testator to create contingent estates. Not even the fact that an absurd consequence fol- lows will deter the courts from declaring that the testator intended to create and has created a contingent estate.^ LEGACIES. It remains to consider the rules for construing legacies given in futuro, for there are rules more or less peculiar Vesting pre- ^^ legacies. The subject, however, begins ferred. with the doctrine which we have seen run- ning through devises; the law favors the vesting of the 1 Nelsou V. Russell, 135 N. Y. 137, 140. 2 Terriue v. Newell, 49 N. J. Eq. 57, 60. 8 Andre-w v. Andrew, 1 Ch. D. 410, James, L. J. The remark generally applies to legacies as well as to devises. * Jarman, 778. See Dawson v. Schaefer, 52 N. J. Eq. 341, 344. 5 Eichardson v. Wheatland, 7 Met. 171, 6 Holmes v. Cradock, 3 Ves. 317. SECONDARY CONSTRUCTION: CLAUSES. 255 gift, and will not declare the legacy, any more than a devise, contingent, unless the language of the "will re- quires.^ Accordingly, as in the case of devises, lan- guage of apparent contingency will easily give way to indications that the testator did not use it with a view to real contingency. But if futurity is, ou the whole, of the substance of the gift, the vesting is suspended in the meantime.'^ The first in point of importance of the indications of the kind is where the suspension of enjoyment of the gift is fixed only as a matter of the time of pay- postpo„e,,^gp^t ment, and not made substance of the gift of time of pay- HI 6 lit niGr^Iv. or for reasons personal to the legatee ; ^ in other words, where there is a gift and a direction to pay in the future.* Such cases have naturally led to the rule 1 Foster v. Holland, 56 Ala. 474, 480. 2 Smith V. Edwards, 88 N. Y. 103; Miller v. Gilbert, 144 N. Y. 68, 73 ; In re Young, 145 N. Y. 535, 538 ; Sellers v. Reed, 88 Va. 377. See Cook v. McDowell, 52 N. J. Eq. 351, 353; Haggerty v. Hocken- berry, id. 354, 359; Tindall v. Miller, 143 Ind. 337, 339. 3 Garland v. Smiley, 51 N. J. Eq. 198, 202; Engles's Estate, 167 Penn. St. 463, 464. * Sellers v. Reed, 88 "Va. 377 ; Farnam v. Farnara, 53 Conn. 261 ; In re Seebeck, 140 N. Y. 241, 248. See Dawson v. Schaefer, 52 N. J. Eq. 341, 344. Sometimes a testator declares his intention that the gift shall be postponed in enjoyment for a stated time after the legatee acquires full title to it, notwithstanding he is then of age. The English courts appear to deal summarily with such cases. ' The principle of this court,' said Wood, V. C, in Gosling v. Gosling, Johns., at p. 272, quoted as settled, but apparently not with approval, in Wharton v. Master- man, 1395, A. C 186, 192, by HerschcU, L. C, 'has always been to recognize the right of all persons who attain the age of twenty-one to euter upon the absolute use and enjoyment of the property given to them by a will, notwithstanding any directions by tlie testator to the effect that they are not to enjoy it until a later age ; unless during the interval the property is given for the benefit of another. If the 256 THE LAW OF WILLS. of construction that, in the absence of other evidence, the gift, notwithstanding the use of words of apparent contingency, should be treated as vested and not contin- gent.^ Hence the gift will not fail by the death of the legatee before the time or event. A testator gave stock to trustees to pay a stated sum of money per annum to his daughter for life, and after her death ' to pay, assign, and transfer the sum of £1000 stock equally ' amongst all the children of his daughter, ' to be paid and trans- ferred to them when and so soon as the youngest should attain his or her age of twenty-one years;' after his daughter's death the dividends to be applied to main- tain the children. The children took vested interests in the stock ; hence the death of some of them, before the youngest became twenty-one, did not defeat the gift to them.^ Words directing division or distribution between sev- eral persons at a future time amount to a direction to r,. . . , pay, and hence fall within the same rule.^ Division be- ^ •' tween several Thus a legacy to A and B of £10,000 in par- ticular bonds, with the dividends arising therefrom, to be equally divided between them when the youngest reaches twenty-five, vests the stock at once in the legatees.* Payment in the future in such cases is property is once theirs, it is useless for the testator to attempt to im- pose any fetter upon their enjoyment of it in full so soon as they attain twenty-one.' 1 Wardwell v. Hale, 161 Mass. 396 ; Eldridge v. Eldridge, 9 Cash. .516, 519 ; Adams i'. Woolman, 50 N. J. Eq. 516, 520 ; Cook v. McDowell, 52 N. J. Eq. 351. Of course it does not affect the question of vesting that after-born children are let in, to share with those in being at the event named. Haggerty v. Hockenberry, 52 N. J. Eq 354. 2 Chaffers r. Abell, 3 Jur. 577. 3 See In re Seebeck, 140 N. Y. 241, 248 ; In re Tienken, 131 N. Y. 391 ; Haggerty v. Hockenberry, 52 N. J. 351. * May V. Wood, 3 Bro. C C. 471. SECONDARY CONSTRUCTION: CLAUSES. 257 not because of anything personal to the legatees, but that they may reach maturity before taking possession of what belongs to them.^ Obviously it can make no difference how the time of payment or distribution is set, provided that otherwise there is a clear gift of an immediate interest. Thus it does not make a gift of money contingent that there is added the provision that the money is not to be paid over until the testator's debts are paid, or until certain of his land is sold, or until certain other legacies are paid. It will have been noticed that the construction which looks upon the suspension of payment or distribution as not importing contingency, speaks of gifts qj^. , ,, and postponement of payment or distribu- postponement ,. „, • •• ^ •• • 1 of payment: tion. Ihe conjunctive relation, in cases such time essential as we have been speaking of, appears to be "*^'^®"' necessary; a gift to a person in case of his reaching a certain age, or of the happening of some event, or in any other language which plainly imports contingency, will not, if that is all, be treated as vested ; and it seems equally true that, if the gift itself consists cTnly in a direction to pay upon the apparent contingency, the con- tingency, so far, is real, and must be so treated by the courts. In other words, in this last-named class of cases time is of the substance of the gift, and not a mere matter of postponement of enjoyment.^ A testator gave real ^ Haggert}- v. Hockenberrj, 52 N. J. Eq. 354, 359 ; Adams v. Wool- man, 50 N. J. Eq. 516, 521. 2 See Peckhara v. Gregory, 4 Hare, 398 ; Adams v. Woolman, 50 N. J. Eq. 516, 520. In the cases just cited the doctrine is stated thus : ' If there is a gift to a person at twenty-one, or on the hai)pening of any event, or a direction to pay and divide when a person attains twenty-one, there the gift being to persons answering a particular description, if a p.arty cannot bring himself within it, he is not en- titled to take the benefit of the gift. There is no gift in those cases 17 258 THE LAW OF WILLS. and personal property to trustees in trust, to pay, apply and transfer the same, upon a future event named, to the brothers and sisters of A, share and share alike, ' upon his, her, or their attaining twenty-five ' or marrying with consent in the case of the sisters. Meantime the trustees were authorized to apply the rents and profits of the property for the maintenance of the brothers and sisters. It was held that the gift was contingent, not postponed merely in enjoyment.^ Still this limitation must not be taken too strongly. At most it is only of prima facie effect, and wull readily „ , , yield to evidence of an intention that the Postponement *' _ for convenience gift is not to be taken as contingent. If from the language of the will it appear that payment or distribution has been postponed, not for reasons personal to the legatee, but for convenience except in the direction to pay or in the direction to pay and divide. But if, npon the whole will, it appears that the future gift is only post- poned to let in some other interest, or, as the court has commonly ex- pressed it, for the benefit of the estate, the same reasoning has never been applied to the case. The interest is vested notwithstanding, al- though the enjoyment is postponed.' To the same effect. Post c. Her- bert, 12 C. E. Green, 540, in which it is said that a gift to A 'at ' a given age or marriage, or ' when ' or ' from and after ' his attaining a given age, is prima facie contingent. Perrine v. Newell, 49 N. J. Eq. 57, 60. 1 Leake v. Eobinson, 2 Mer. 363. See Walker v. Mower, 16 Beav. 365 ; Gardiner v. Slater, 25 Beav. 509 ; Locke v. Lamb, L. R. 4 Eq. 372 ; In re Wintle, 1896, 2 Ch. 711. Wliere there is no gift and no language importing gift except in the direction to pay, or to convert the property into money, and then make distribution, the vesting is postponed, because time is annexed to the substance of the gift. In re Young, 145 N. Y. 535, 538 ; Delaney V. McCormack, 88 N. Y. 174; Lippincott v. Pancoast. 47 N. J. Eq. 21, 25. But this rule will yield to evidence of a different intention. In re Young, supra ; Miller v. Gilbert, 144 N. Y. 73 ; Smith v. Edwards, 88 N. Y. 105 ; Lippincott v, Pancoast, supra. SECONDARY CONSTRUCTION: CLAUSES. 259 touching the fund in question, especially where there is a prior vested disposition of it, the gift will not be treated as contingent merely because there is a simple direction to pay in futuro as distinguished from a gift and a direction so to pay.^ A testator pro- vided an annuity for A and B for ten years after his own and his wife's death; in case of the death of either A or B, the annuity to go to the survivor; after the ten years he gave to A, if then living, a sum of money, but to B, if A were then dead. A and B both survived the testator, but both died within the ten years. It was held that the gift to them vested ; the words of contingency had been used only to provide for the situation between A and B, and not to make the gift itself conditional. The postponement was for the convenience of the estate, and not personal to A and B.2 The prior gift in such cases affords ground for considering that the testator's idea was that the per- son to take thereafter in the apparent contingency was to take simply after the prior gift; the language of contingency being the language of a person unskilled in formal statement of intention. Such a case might even be made where there was a gift over if the legatee should die before the time of payment or dis- tribution.* 1 See Cook v. McDowell, 52 N. J. Eq. 351, 353 ; Haggerty v. Hock- enherry, id. 354, 359 ; Garland v. Smiley, 51 N. J. Eq. 198, 202 ; Heil- mau V. Heilman, 129 Ind. 59. 2 Bromley v. Wright, 7 Hare, 334. See Dawson v. Schaefer, 52 N. J. Eq. 341, 344 ; PTaggerty v. Hockenberry, id. 354, 359. The decision in Beck i'. Burn, 7 Bcav. 192, and in one or two other cases, apparently contra, has been doubted. Parker v. Sowerby, 17 Jur. 752; Adams V. Robarts, 25 Beav. 658 ; Jarman, 800, note. 3 Shrimpton v. Shrimpton, 31 Beav. 425. Further see In re Duke, 16 Ch. D. U2. 260 THE LAW OF WILLS. Another strong indication in these eases of apparent contingency, that the testator did not in reality intend Provision for that the legacy should be contingent, has esT:^°mainte-' ^^^" found where the will has provided that nauce. interest shall be paid to the legatee until the legacy itself becomes payable; and a rule of con- struction has accordingly been laid down.^ But here again the indication may be overturned by the language of the will; a testator might direct that a sum of money should be paid to A in event only of his attaining a stated age, but that meantime the interest arising from it should be paid to or for him. The gift of the prin- cipal sum would be contingent in such a case. The language just used shows that it is not necessary, however, that the interim payments should be made to the legatee, to indicate that he has a vested interest in the principal also; it may be directed to be paid over to another, for instance, his guardian or trustee, for his use in general or for his maintenance. Interest to be paid as maintenance is still interest, so as to raise a pre- sumptive title to the principal. It would be otherwise of maintenance as maintenance, out of and less than the interest.^ Maintenance heing the interest, that is, where 1 Fuller V. Wiuthrop, 3 Allen, 51, 60 ; Toms v. Williams, 41 Mich. 552, 565; Rogers v. Rogers, 11 R. L 38 ; Dale v. White, 33 Conn. 294; In re Wintle, 1896, 2 Ch. 711 ; Watson v. Hayes, 5 Mylue & C. 125. 'It is well known,' said Lord Cotteuham, in Watson r. Hayes, ' that a legacy which would, upon the terms of the gift, be contingent upon the legatee attaining a certain age, may become vested by a gift of the interest in the meantime, whether direct or in the form of maintenance, provided it be of the whole interest.' See In re Wintle, supra, quoting this language. 2 Pulsford V. Hunter, 3 Bro. C. C. 416 ; Leake v. Robinson, 3 Jler. 363, 381, 384. See also In re Parker, 16 Ch. D. 44; In re Mervin, 1891, 3 Ch. 197 ; that a discretionary trust to apply for maintenance the whole interest, or as much as may be thought fit, is not equivalent to a direction to pay interest, but only a gift of so much as is required for mainteuance. SECONDARY CONSTRUCTION: CLAUSES. 261 it is in fact the very interest of the fund, would be the same thing as a designation of interest in terms. ^ Apart from statute, legacies charged upon laud, and made payable at a future day, form an exception to the general rule concerning gifts and postpone- ^^ ment of enjoyment. Such legacies are not charged on land vested, unless the contrary intention be futurohot shown; and hence they lapse if the legatee '^'^®*^''- die before the time of payment arrives."^ This broad rule was adopted in opposition to the rule in regard to lega- cies payable out of the personal estate, which are con- sidered vested. The reason of this distinction has been said to be the favor shown by the English courts, appar- ently meaning courts of equity, towards the heir. It has accordingly been intimated that the rule has not been extended in equity to cases in which the estate was given to a stranger upon express condition that he pay the legacy charged upon the land.^ But both these sugges- tions have been denied, and the true reason affirmed to be, that courts of equity govern themselves, as far as is 1 Watson V. Haves, 1 Mylne & C. 125, 133 ; ante, p. 260, note. In In re Parker, supra, Jessel, M. R., held that the case was not different where there was a direction to pay the whole interest for maintenance, to which was superadded a direction that tlie whole or such part of the interest as should be thought fit sliould he paid, citing his own rul- ing in Fox I'. Fox, L. R. 19 Eq. 286. But as to these two cases of the late Master of the Rolls, see In re Wintle. 1896, 2 Ch. 711, 713, where trustees were empowered to apply ' the whole or such part as they sliall think fit' of the income of presumptive shares, for maintenance during minority, the shares themselves heing otherwise contingent. It was held that the words did not show tliat they were vested before majority of the legatees. '^ Birdsall v. Hewlett, 1 Paige, 32 ; Marsh v. Wheeler, 2 Edw. Ch. 163 ; Harris v. Fly, 7 Paige, 421 ; Sweet v. Chase, 2 Comst. 73 ; Speuce V. Robbins, 6 Gill & J. 507 ; Garland v. Smiley, 51 N. J. Eq. 198. * Birdsall v. Hewlett, 1 Paige, 32. See Garland v. Smiley, supra. 262 THE LAW OF WILLS. consistent with equity, by the rules of the common law, of which the rule iu question is one, and that the com- mon law rule has always been adhered to in equity.^ In other words, the rule above stated, in regard to legacies charged upon land, is a rule both of law and of equity. RESIDUARY BEQUEST. It remains to make a remark concerning words of apparent contingency in residuary gifts. It is supposed Distinction that a Very clear intention must be shown to considered. prevent a residuary gift from vesting, be- cause intestacy may be the consequence of holding the gift to be contingent.^ That could not be the case with contingent gifts in the prior parts of the will, if the will contained, as it generally contains, a residuary clause, for as we have seen the residuary clause would itself prevent intestacy in respect of dispositions of the will which failed. But how much stress should be placed upon the fact that the contingent words occur in a resid- uary gift cannot be stated. Perhaps all that can be said is that added stress should be laid upon the case because of that fact.^ This chapter now leads naturally to conditions generally. 1 Lord Hardwicke, in Prowse v. Abingdon, 1 Atk. 482, 486; Gar- land V. Smiley. 2 Jarman, 809. 3 For cases in which the fact has been noticed see Booth v. Booth, 4 Ves. 399 ; Jones v. Mackilwain, 1 Russ. 220 ; Eldridge v. Eldridge, 9 Cush. 516. SECONDARY CONSTRUCTION: CLAUSES. 263 CHAPTER XX. SECONDARY CONSTRUCTION: CLAUSES. CONDITIONS. A THING is made dependent upon a condition when it is made dependent upon an uncertain event, Definition and act, or omission. remarks. The event, act, or omission may be past, present, or future. In a sense a thing present or past cannot be uncertain; such a thing is a fact, and hence has or has not taken place, or exists or does not exist; but whether it has taken place or now exists maj' not be known, and a thing is uncertain within the meaning of the defini- tion if, though present or past, knowledge of the fact is unknown to the person who creates the condition.^ The event, act, or omission may be made dependent upon or performable by the person who creates the con- dition, or another. In the case of a will the testator may declare that a gift in the will shall be made only upon his own doing or omitting some particular act. Such a provision would not amount to a reservation of a right to alter or revoke the will by parol.^ 1 Language in the form of a condition will be construed as a cove- nant against a devisee of land charged with legacies where no right of entry or forfeiture is provided for non-compliance. Cunuingliam v. Parker, 146 N. Y. 29, 33 ; ante, p. 94. 2 Langdon v. Astor, 16 N. Y. 9, 26. 264 THE LAW OF WILLS. The event, act, or omission may be made dependent upon or performable by the devisee or legatee, as for Performance of instance that he shall have been in the tes- condition m tator's emplov a certain lenorth of time to testator's life- i J o time. entitle him to a gift.^ But as a will has no legal force until after the testator's death, it is thought to be doubtful whether there can be a valid condition, requiring performance of acts by the devisee or legatee in the testator's lifetime, such as the support of the tes- tator, unless the devisee or legatee has notice of the condition in season.^ It seems clear, however, that a gift might properly be made upon agreement with the donee for the perform- ance of certain acts during the lifetime of the testator, and that failure to perform the agreement might disen- title the donee to the gift.^ So, too, if a condition of similar import were brought by the testator to the notice of the donee, it would seem that the condition would be valid. But as such a condition would be unusual, it would devolve upon the party seeking to take advantage of it to prove the notice.* Doubt not infrequently arises whether language used amounts to a condition. The question is one of inten- Conditions not tion, and a case for construction accordingly paTdedwi'th ^^ presented. Certain phases of this sub- disfavor, ject were under consideration in the preced- ing chapter; and there we found the doctrine, plainly expressed, that the law looks with disfavor upon condi- 1 In re Sharland, 1896, 1 Ch. 517. 2 Colwell V. Alger, 5 Gray, 67 ; note by the present writer, in Jar- man, 842. 8 Burleyson v. Whitley, 97 N. C. 295. See Lefler v. Rowland, Phil. Eq. 143 ; Martin v. Martin, 131 Mass. 547. * Colwell V. Alger, supra. SECONDARY CONSTRUCTION: CLAUSES. 2G5 tions attached to gifts. But that was between gifts which are conditional and gifts which are vested, and it would be unsafe to argue from that doctrine that the law looks generally with disfavor upon conditions, so as to be anxious to find that the testator did not intend to annex any condition to his bounty unless he has said so in unmistakable words. Consider, for instance, cases in which a testator has made a gift to one of his executors, by designation of the office, as ' to my executor A.' Does this Qjffg ^^^ execu- language import that the testator intended *'""^- that the gift should be conditional upon A's accepting the office of executor? If the language of the authorities under consideration in the preceding chapter is to be taken as indicating a general principle, the answer would probably be in the negative. For the provision, even in its literal terms, is not conditional, and hence would be well within the doctrine of the preceding chapter. Indeed it has been plainly laid down that where an estate has been clearly given it is not possible to treat as a condition words which are capable of being interpreted as mere description of what must occur before the estate in question can arise.' That looks much like a refer- ence to the language of the courts in cases of contingent as distinguished from vested gifts. But the authorities appear to be generally opposed to such extension of the doctrine of the preceding chapter, or, if the view is a distinct and independent one, to the proposition itself that description cannot be taken to import condition. While there is other authority than that just cited, to the effect that a gift by a testator to one of his executors by designation of the office cannot 1 Edgeworth v. Edgeworth, L. R. 4 H. L. 35, 41, Lord Westbury. 266 THE LAW OF WILLS. be treated as conditional upon acceptance,^ there is more authority for the doctrine that a legacy to an executor, by the name of executor, is prima facie a gift to him as executor, so as to be conditional upon his accepting the place. ^ The same would be true of a legacy to one of the trustees in a trust created by the will, under the designation of trustee.^ Slight indications, however, would be enough to change the construction. Thus if the gift contain expressions „ , ^. . indicating that the testator's motive in mak- Construction m _ " such cases ing it was one of respect, admiration, or •^ ' ° • affection, and not to provide a reward for trouble in administering the estate, the idea of a condi- tion would be overturned.* The same would be true if the executor-legatee, being a relative, were described by his degree of relationship to the testator, as ' I give to my cousin A £50, whom I appoint joint executor. ' ^ And clearly there can be no condition in the case of a gift to a person under designation of an office or post, that he 1 In re Denby, 3 DeG. F. & J. 350. See Lewis v. Matthews, L. R. 8 Eq. 277 ; Slaney v. Watney, L. R. 2 Eq. 418 ; Morris v. Kent, 2 Edw. 174; that if the gift was to the executor 'for his trouble/ it would be conditional upon acceptance of the office. 2 Calvert v. Sebbon, 4 Beav. 222; Hawkins's Trust, 33 Beav. 570; Angermann f^. Ford, 29 Beav. 349 ; In re Reeve's Trusts, 4 Ch. U. 841 ; Lewis r. Matthews, supra ; Jervis v. Lawrence, L. R. 8 Eq. 345 ; Kirk- land V. Narramore, 105 Mass. 31 ; Rothmaler v. Cohen, 4 Desaus. 215 ; Billiugslea v. Moore, 14 Ga. 370. 3 Kirkland v. Narramore, supra. But the language in this case clearly showed that tlie gift was conditional. * Cockerell i\ Barber, 2 Russ. 585 ; Bubb v. Yelverton, L. R. 13 Eq. 131. ^ Dix V. Reed, 1 Sim. & S. 237. Other parts of the will may fur- nish similar indications. Such is the case where the will directs that the gift to the executor shall be paid at once. Humberston v. Hum- berston, 1 P. Wms. 332. So where a legacy is given to him in re- mainder expectant upon the determination of a life interest. Wildes SECONDARY CONSTRUCTION: CLAUSES. 267 shall assume the same, if it does not appear that the tes- tator is interested iu having the legatee assume it, for there would be no motive for the condition. Upon the question whether the testator intended that his whole will should be conditional, as where he begins ' In case of my sudden and unexpected xhe whole will death, I give,' &c., the authorities appear conditional. to look with disfavor upon a construction which would prevent the will from taking effect. In such cases it is said that the will should not be construed as conditional unless it is clear that the testator intended that the will should take effect or continue only in a certain event.* If by reasonable interpretation the language can be re- garded as meaning that the testator referred to the con- tingent event as the reason merely for m.akiug the will, the will is not conditional.^ This doctrine, while in most of the authorities laid down only of the whole will, has also been considered applicable equally to the case of a partic- particular part ular one of several gifts in a will, as for conditional, instance to a residuary bequest introduced by words that might as well have been used at the beginning of the will. Thus ' In case of a sudden and unexpected death, I give the remainder of my property to ' A, has been construed as not conditional.^ V. Davies, 1 Smale & G. 575. So where the gift is of residue or a share of residue. Griffiths v. Pruen, 1 1 Sim. 202 ; Christian v. Dev- ereux, 12 Sim. 264. 1 Skipwith f. Cabell, 19 Gratt. 758, 782. See Brown v. Concord, 33 N. H. 285. 2 Id. ; In re Porter, L. R. 2 P. & D. 22, 24 ; In re Dobson, L. R. 1 P. & D. 88 ; In re Martin, id. 380. 8 Skipwith V. Cabell, supra. See further Jarman, 842, note, by the present writer. 268 THE LAW OF WILLS. Conditions are, technically speaking, either precedent or subsequent. A condition is precedent when the hap- _ ^ J penins; of some uncertain event, or doing Precedent and ^ ^ > o subsequent soHie act, is necBssary to the creation of the conditions. • x ^ j ^ l -j. tj.- • interest dependent upon it; a condition is subsequent when an interest already created may be defeated or determined thereafter by the happening of some uncertain event, or doing or omitting some act, such as the support of the devisee's mother during her life.^ Whether a condition is precedent or subsequent, however, is to be determined by the language of the particular instrument; if there be any uncertainty in the language, the case is one for construction. What rules of construction, if any, are applicable to such cases? There is no distinction in the way of technical words by which to answer the question; that is, there is no set of words which the law has prescribed or found neces- sary even presumptively to constitute the one or the other kind of condition. The distinction turns upon the proper meaning of the language used in the particular case, and may be found in the most inartificial or unusual language. The same words may make a condition prece- dent or subsequent, according to the nature of the thing and the intention; ^ and accordingly what would be a condition precedent in a deed may be a condition subse- quent in a will.^ The general distinction however is this: If performance of the condition is required before the vesting of the gift, the condition is precedent; while if the gift is to vest before the time fixed for performance of the condition, it is subsequent.* 1 Gingrich v. Gingrich, 146 Ind. 227, 230 ; Hoss v. Hoss, 140 Tnd. 551. '■^ Acherly v. Vernon, Willes, 153; Birmingham v. Lesan, 77 Maine, 494 ; Merrill i\ Wisconsin College, 74 Wis. 415. 3 Casey v. Casey, 55 Vt. 518 ; McCall v. IMcCall, 161 Penn. St.412, 414. * McCall V. McCall, 161 Penn. St. 412, 414. SECONDARY COKSTRUCTION : CLAUSES. 269 The question in every case for construction of the kind is, What was the intention? If the language shows the intention to be that the interest is to arise by virtue of the instrument itself, taking effect at once as a vested interest, whether in present or future enjoyment of the res, it is precedent; if not, the condition, if any, is sub- sequent.^ It is only putting the case another way to say that if the condition can be performed at any time before the interest is to come into existence, it is precedent; while if performance may be afterwards it is subsequent. A testator devised to A an annuity as a rent-charge, to be paid semi-annually out of the rents of his real estate; by codicil he declared that the gift was to be taken by A in satisfaction of all claims upon his real or personal estate, and upon condition that A released all claim thereto to his executors. The condition was held precedent; it could not be said that the devisee could not perform the condition before the time of the annuity, for as payment •was to be made semi-annually, A would have six months after the testator's death in which to comply.^ It has been laid down as the result of the authorities that the argument in favor of construing the condition as precedent is stronger where a gross sum p_^^^^ .^ ^^^.^^ of money is to be raised out of land than of precedency , . , ^, 1 1 -i iJ! of condition, where there is a devise of the land itselt; where a pecuniary legacy is given, than a residue; where the nature of the interest is such as to allow time for the performance of the act before enjoyment of the res begins, than where it is not; where the condition is capable of being performed at once, than where time is required for performance.^ While on the other hand the 1 A contingent estate may be subject to a condition siibsequent. Egerton v. Brownlow, 4 II. L. Cas. 1 . 2 Acherly v. Vernon, Willes, 153. ^ Tappan's Appeal, 52 Conn. 412. 270 THE LAW OF WILLS. fact that a definite time has been set for performance, but none for the vesting of the estate, favors the view that the condition is subsequent.^ It should further be said that, inasmuch as the failure of a condition subse- quent defeats the estate or interest subject to it, the condition itself is strictly construed; it must be so expressed as to leave no doubt of the precise contin- gency provided for; it must be such that the courts can see from the beginning, precisely and distinctly, upon the happening of what event the vested estate is to eud.^ "Whether a condition be construed as precedent or as subsequent may be a very serious matter. This is no- Effect of dis- where more strikingly seen than in the fact tmction. (i^ ^i^Q^i equity cannot interfere to relieve from the consequence of a failure to perform a condition precedent,^ — while nothing is more common than for the court, acting upon motives of conscience and justice, to grant relief when the unperformed condition is subse- quent; and in the fact (2) that not even the consent of the testator himself, who has imposed the precedent con- dition, can dispense with it, without remodelling the devise or legacy, that is, without a testamentary act, ■while the contrary is true of a condition subsequent.^ A testator devised to A upon condition that she should marry B, otherwise over. A, with consent of the tes- 1 Jarman, 847 (for the whole paragraph) ; Duddy v. Gresham, 2 L. R. Ir. 442 (for the last point). 2 Jarmau, 853; Duddy v. Gresham, supra (at p. 471) ; Egerton v. Brownlow, 7 H. L. Cas. 721. See Illinois Land Co. v. Bonner, 75 111. 315. 3 Kent, iv. 125. * Davis I'. Angel, .31 Beav. 223, 226, Sir John Romilly, M. R. ; affirmed on appeal, 4 DeG. F. & J. 324, Lord Westbury. SECONDARY CONSTRUCTION: CLAUSES. 271 tator, married C. It was held that the condition, being precedent, was not dispensed with.^ 1 Davis V. Angel, supra. Lord Westbury thought the case would probably be different where a testator, contemplating an event after his death, should merely give certain directions concerning, for instance, the marriage of A, and then A should marry in the testator's lifetime ■with his consent. 272 THE LAW OF WILLS. CHAPTER XXI. SECONDARY CONSTRUCTION: CLAUSES. FROM WHAT TIME A WILL SPEAKS. A WILL creates rights only upon the death of the tes- tator, but in order to determine the nature and extent of Question for the rights created it is sometimes necessary cousideratiou. ^ look back to the state of things which existed when the testator was writing, or when he exe- cuted, his will, sometimes to look forward to, or rather to await, facts after his death. Accordingly, a will may, in regard to the disposition of property,^ speak (1) from its date, (2) from the time it was executed, (3) from the 1 Gray v. Hattersley, 50 N. J. Eq. 206. In this case the court had occasion to sa\' : ' The rule that a will, for some purposes, speaks from its date, and for other purposes from the death of the testator, applies only to the ascertainment of the pro])erty which passes by it. It re- lates to the effect and operation of the instrument rather than to its construction. It has no application to a case where the meaning of language is involved.' This possibly is misleading. It often happens that a question of the meaning of the language of a will is the very question to be determined, in deciding whether a will passes after- acquired property, that is, whether the will speaks from its date or from its execution. See e. g Winchester v. Forster, 3 Cusli. 366. But in Gray v. Hattersley the language of the testator was declared to be 'clear'; hence construction had no place there See ante, p. 149. What the court in tliat case meant appears to be, that the point of time to be regarded for con.struing a will is not itself a matter of con- struction ; it must be of the making of the will. What a man's lan- guage means must be decided of the time when he uses it ; a man cannot be considered to mean something at his death that he did not mean when he expressed himself. SECONDARY CONSTRUCTION: CLAUSES. 273 death of the testator, (4) from some later time. It is sel- dom however that the first of these points of time has to be regarded, for in almost all cases the first is coinci- dent with the second, or so nearly coincident as not to be separable from it. The difference between the second and third points of time may be the difference of years, and involve great changes, so that whether the one or the other is taken as the point of view may be a matter of serious importance. How, then, is it to be deter- mined whether the will speaks from the one or the other point of time? Are there any rules to meet the point? In regard to personalty, the following may be taken aa a general answer: If that which is given (called the ' sub- ject ' of the gift) is specific, the will speaks ^g ^.q person- from its date; if the gift is not specific, the ^'^3'- will speaks from the testator's death. This assumes, in either case, that there is no expressed intention in the will, or at least none at variance with the answer; for ' expressum facit tacere taciturn.' The answer, or rule, just stated is based upon the theory that where a testator makes a specific gift, as for example of ' my seal ring,' he is con- Theory of the sidered as having in contemplation only the answer. particular thing then in his possession, and not also, as an alternative, something else at his death to take its place if that particular thing is gone; not even some- thing else which may answer to the description of the thing given. ^ The theory indeed appears to be a strin- gent one, for the rule of law goes to the extent of declar- ing that though the subject of gift, in the possession of the testator, remain unchanged, still if his own interest 1 See Cockran i;. Cockran, 14 Sim. 248; Pattison u. Pattison, 1 Mylne & K. 12. 18 274 THE LAW OF WILLS. therein, at the time of his death, be ^not the interest he had when he executed the will, the property will not pass, unless the will show an intention to pass it. Thus where a testator bequeaths his interest in a lease, he bequeaths the interest he had when he made the will, not an interest he may have acquired afterwards, as by tak- ing a renewal of the lease upon its termination. The renewal interest is as different in law from the one named in the will as if it had been something altogether different.^ In regard to gifts of realty^ we have elsewhere seen that, except as the case has been changed by statute, a As to ffifts of testator could not devise his after-acquired realty. lands, howevcr strongly he might express his intention to do so. The devise could speak only from the date of the will. Where, however, the testator disposed of his real and personal property generally, the two principles operated together. The testator was still supposed to give the same to the full extent of his capacity; and accordingly, while his lands passed only as of the date of the will, his goods passed as of the time of his death. ^ Legislation however has generally changed the iron- bound rule of the common law in regard to wills of Change of the realty, SO as to make it merely a question '3'>^- of intention whether after-acquired lands pass or not. The statutes differ somewhat. In some of the States, as in Pennsylvania, such lands pass by devise unless a contrary intention appears in the will; in some 1 Jarman, 289. 2 Jarman, 290. In Banks v. Thornton, 11 Hare, 176, a jxift of 'all the residue of my property which consists of stock ' passed all the stock the testator owned at his death. SECOXDAEY CONSTRUCTION: CLAUSES. 275 of the States, as in New York, an intention to pass after- acquired lands is considered to be found, presumptively but not conclusivel}^ by a devise of all the testator's real estate ; and in other States, as in Massachusetts, a clear and manifest intention to pass such lands must appear in the will.^ A change of circumstances in the jjersons to whom the testator gives property (called the ' objects ' of the gift) may raise the same sort of question; does ^, •^ ^ ' Change of cir- the will speak from its date or from the tes- cmnftances in tator's death? The general answer is, that ° ^^'^^^' it speaks from its date, upon the presumption that the testator had in mind only those who then met the case. This is an obvious interpretation of the will where the objects are mentioned by name or where they are other- wise specifically designated; the case is like tliat of the subject of gift specifically described. The fact that some other person answers to the description of one who no longer exists will not entitle him to the gift; that per- son, it is supposed, was not in the mind of the testator at all. Thus if the testator's legatee is John, and John dies, the fact that the legatee's father afterwards has another son whom he names John will not enable that John to take the legacy.^ So a gift to the wife of A 1 The following are a few of the many cases : Commonwealth i-. Hackett, 102 Penn. St. 505; Byrnes v. Baer, 86 N. Y. 210; Winchester V. Forster, 3 Cush. 366, 369; Hill v. Bacon, 106 Mass. 578; Morey v. Sohier, 63 N. H. 507 ; Flummerfelt v. Flnmmerfelt, 51 N. J. Eq. 432 ; Gardner v. Gardner, 37 N. J. Eq. 487 ; Phillipsbnrgh v. Bruch, id. 482 ; McGavock r. Pugsley, 12 Ileisk. 689; Henderson v. Ryan, 27 Texas, 673 ; Thorndike v. Reynolds, 22 Gratt. 21 ; Patty v. Goolsl)y, 51 Ark. 61 ; Missionary Soc. v. Mead, 131 111. 338 ; Briggs v. Briggs, 69 Iowa, 617 ; Gibbon v. Gibbon, 40 Ga. 562 ; Gold v. Jndson, 21 Conn. 623. 2 Of course it makes no difference whether the legacy is specific or not ; the object, John, is specific. Nor does it matter whether the gift is of personalty or of realty. 276 THE LAW OF WILLS. would be a gift to the wife A had at the date of the will, not to a subsequent wife. ^ Indeed, one who ^vas the wife of A at the date of the will would take though A should die and his widow remarry, for she in i)erson was pre- sumptively intended by the will.^ The same rule applies to a gift to the testator's own wife.^ But the rule in regard to objects of gift — which con- siders only those to be within the intention of the tes- Gifts to persons tator who meet the case at the date of the within testa- ^jjj — ^g ^^^ limited, as in the rule in re- tor s natural _ ' bounty. gard to the subject of gift, to those who are specifically designated; it applies as well to objects generally designated, unless such objects are persons naturally within the bounty or provision of the testator. Thus a gift to the testator's servants is a gift to those only who were his servants at the date of his will, unless a different intention is shown. Such servants will take, in exclusion of servants of a later time down to the tes- tator's death, though they (the servants of the date of the will) have since left the testator's service.^ But it will be otherwise if the testator designate the legatees as those who shall be in his service at the time of his death; servants discharged before that time, though wrongfully discharged, will not take.^ 1 Van Syckel v. Van Syckel, 51 N. J. Eq. 194 (explaining Swallow v. Swallow, 12 C. E. Green, 278) ; Garratt v. Niblock, 1 Rups. & M. 629 ; Franks v. Brooker, 27 Beav. 635; Boreham v. Bignall, 8 Hare, 131 ; Firth V. Fielder, 22 Week. R. 622, Jessel, M. R., denying In re Lvnne, L. K. 8 Eq. 65. 2 Jarman, 303. 3 Garratt v. Niblock, supra ; Van Syckel v. Van Syckel, snpra. * Parker v. Marchant, 1 Yonnge & C. C. C. 290. But see Jones v, Henley, 2 Ch. Rep. 162 ; In re Marcus, Week, N. 1887, 168. 6 Darlow v. Edwardes, 1 Hurl. & C. 547 ; In re Serre, 10 Week. R. 751 ; In re Hartley, 26 Week. R. 590 ; In re Benyon, Week. N. 1884, 8EC0NDARY CONSTRUCTION: CLAUSES. 277 All this of course may be made explicit by an expressed intention on the face of tlie will, as for instance where the testator speaks of the subject or the Use of present object of his bounty in the present tense or ^ense. by the use of the word ' now ' or some such expression. Hence for such cases the courts declare that wherever the testator has referred to an actually existing state of things, whether property or the persons to take it, he is considered as referring to the date of his will and not to the time of his death. ^ There appears however to be some limitation to this doctrine; as has already been intimated, the courts are not disposed to apply it, where to do so Construction would result in cutting off persons naturally not to cut off obit'cts within the testator's bounty. The courts are not disposed to narrow, but rather, within reason and natural intent, to enlarge the scope of the testator's language at least in the case of gifts to children. Thus an immediate gift to children simpliciter, without name or description, is treated as meaning the children in existence at the death of the testator, if there be any at that time."^ In like manner a gift to the ' heirs ' or ' heirs-at-law ' of the testator will be treated as referring to those who are legally such, that is, at the death of the testator, unless a different intention is manifested in the 157. As to who are servants within the meaning of the text, see Jar- man, 305, note. 1 Gohl i;. Judson, 21 Conn. 616; Everett v. Carr, 59 Maine, 325, 332; Morse »;. Mason, 11 Allen, 36; Quinn v. Ilardenbrook, 54 N. Y. 83 ; Board of Education v. Ladd, 26 Ohio St. 210; Anshutz v. Miller, 81 Tenn. St. 212. 2 Shotts V. Poe, 47 Md. 513; Benson v. "Wright, 4 Md. Ch. 278. But this rule might also cut off tlie representatives of children deceased in the testator's lifetime, apart from statute, as where the gift was to the testator's own sons or daughters. 278 THE LAW OF WILLS. will.^ Nor will the use of the word ' then ' as iutrocluc- tory to the gift over after the death of the legatee or tenant for life prevent this result, unless it is clear that the word was so used as plainly to indicate that the heirs or next of kin living at the death of the life tenant or legatee were meant.^ But this limitation will, as has just been intimated, itself yield to the expression of a purpose at variance with it. Thus where it clearly appears that the testator meant his heirs or next of kin at the death of a tenant for life, the intention will prevail.^ Akin to the foregoing are cases in which since the making of the will and before the testator's death there Alteration of ^^^ ^^^^ some alteration of the law which, '^^- if applicable to the will, would affect the will itself or the dispositions made by it. Is the will in such a case to be regarded from its date or from the death of the testator? The answer depends upon cir- cumstances. The validity of the execution of the will is to be determined by the law in force at the testator's death.'* A statute changing the requirements of execu- tion is not open to the objection that it operates re- trospectively, because the execution of the will has no force until the death of the testator. Again, if a statute should alter the effect of the dispositions made in the will, and the testator should allow the will to stand unchanged, it would be presumed, in England, that it was his intention that the will should operate 1 Wood V. Bullard, 151 Mass. 324; Whall v. ConTerse, 146 Mass. 345 ; Minot v. Tappan, 122 Mass. 535 ; Buzby's Appeal, 61 Peun St. 111. 2 Wood V. Bullard, and Minot v. Tappau, supra. 8 Buzby's Appeal, supra. * Packer v. Packer, 179 Penn. St. 580; Lane's Appeal, 57 Conn. 182; Jones v. Robinson, 17 Ohio St. 171. SECONDARY CONSTRUCTION: CLAUSES. 279 according to the change in the law.'' But iu some of our States it is held that, iu regard to questions of property, the law which was in force when the will was executed is to be applied.^ Both views, no doubt, stand upon the ground of supposed intention iu the testator. The tes- tator — so runs the argument — naturally gave with re- gard to the existing law when he wrote his will, but if he left his will unchanged after a change in the law, did he not also intend to dispose of his property accord- ingly? Yes, if he knew of the change. Asa matter of fact, actual intention iu the matter probably plays a sm.all part in most cases. A further question of a similar nature may arise where a devise is made to A for life, remainder to B, and a change in the law is made after the testator's death which may affect the gift to B. In such a case the question whether the law should prevail as it existed at the death of the testator or at the death of A will depend upon the further question whether the estate given to B is vested or contingent. If B's estate vested at the death of the testator, no subsequent change in the law could take away any of B's rights therein; if it remained contin- gent until the death of A, the law as it then stood would govern unless a different intention appear in the will.^ 1 Hasluck V. Peclley, L. R. 19 Eq. 271. 2 Taylor v. Mitchell, 57 Peun. St. 209; Gable r. Daub, 40 Penn. St. 217. See also Hargroves v. Redd, 43 Ga. 142 ; In re Elcock, 4 McCord, 39 ; Lawrence v. Hebbard, 1 Bradf. 252. 3 Vantilburgh v. Hollinshead, 14 N. J. Eq. 32. 280 THE LAW OF WILLS. CHAPTER XXII. SECONDARY CONSTRUCTION: CLAUSES. WHEN MEMBERS OF A CLASS TAKE. A QUESTION may arise in regard to the point of time for determining those who compose the members of a class of devisees or legatees. The will now may speak from some point of time after the testator's death. Thus the testator has given property to the heirs, issue, or children of A, without designating the point of time for determining who are such heirs, issue, or children. It may not be possible to determine at the testator's death who are to take as ' heirs ' within the meaning of the will. Construction has to supply the omission, if it can. Take first the case suggested, of an independent devise to heirs or issue as children; at what point of time _ . , . should the members of the class be deter- Devise to heirs or issue : vest- mined? One of the rules of construction ing of estate. ^jga^-iug upon the question is that estates shall be construed to vest at the earliest possible moment consistent with the language of the will.^ An immediate devise to the testator's heir or issue (his children) vests of course at the testator's death,''' and we have elsewhere seen that the mere creation of a prior limited estate in a third person makes no difference. 1 Jarman, 931. 2 reck V. Carlton, 154 Mass. 231, 233; Fargo v. Miller, 150 Mass. 225, 229. SECONDARY CONSTEUCTION : CLAUSES. 281 In accordance with the rule of vesting just stated, an executory gift to the heir of another person vests as soon as there is a person who answers that description, that is, at the death of the person named. And though the gift is postponed till the determination of a limited estate given to a third person, still the death of the pro- positus, as the ancestor is called, is the time for ascer- taining the person who is the devisee. Thus a testator bequeathed goods to A for life, remainder to the heir of B. B died in A's lifetime, and the question was, whether the person to take the remainder was the one who was B's heir at his death or the one who was heir at the death of A. Upon the rule of construction just mentioned, it was held that the time of B's death was the period.^ This doctrine is applied as well to legacies as to devises. It is a general rule of construction that a future and contingent devise or bequest to _^ ^ ^ . ° _ ■* The doctrine a class takes effect on the happening of the applies to leg- contingency upon which the gift depends, only in favor of those objects who at that time come within the description.^ And the rule is deemed so salu- tary that it is not to be departed from unless there is clear indication in the will that the testator had a different intention. It is not enough, for instance, that the heir has an express estate in the same propert}' limited to him in another part of the will. A testator devised land to trustees in trust for the maintenance of his son A, who was his heir apparent, for life, remainder to his other sons successively' in tail, with remainders over to 1 Danvers v. Clarendon, 1 Veru. 35. See Crane v. Bolles, 49 N. J. Eq. 373, 382, of gifts to issue, original and in substitution for the parents, infra. 2 In re Allen, 1.51 X. Y. 243, 247, Andrews, C. J. 282 THE LAW OF WILLS. others and their issue, with an ultimate remainder to the testator's right heirs. Power also was given to the trustees to make a provision for any wife of A and for his children. The intermediate remainders failed, and A now claimed the fee, and prevailed ; there was no sufficient indication of a different intention to prevent the estate vesting in the heir at the testator's death. ^ The period at which gifts to descendants, relations, or next of kin, are to take effect is also a subject of Gifts to de- frequent controversy ; the question being huions'^and^" whether the persons who happen to answer next of kin. the description at the testator's death or those to whom it applies at some later period, are in- tended. Where the gift is not to the next of kin of a per- son who outlives the testator, the doubt is met by a rule of prima facie effect that those answering the description at the testator's death are intended.^ In the case of a gift to the testator's own next of kin, there can be no doubt that his next of kin at his death are meant.^ But suppose the gift is to the next of kin of another person then deceased, as for instance the testator's wife. For solving the doubt in such cases the following rule of con- struction has been adopted : A gift to the next of kin of a person who is dead at the date of the will must, unless a different intention is manifested, receive an interpre- tation analogous to that adopted in the case of a gift to the testator's own next of kin in regard to the period for ascertaining who are intended ; hence those who at the 1 Boydell v. Golightly, 14 Sim. 327. 2 Moss V. Diinlop, Johns. 490; Wharton v. Barker, 4 Kay & J. 483; Dove V. Torr, 128 Mass. 38; Thompson v. Ludiugton, 104 Mass. 193. 8 Fargo V. Miller, 150 JIass. 225, 229. SECONDARY CONSTRUCTION: CLAUSES. 283 testator's death answer the description will take, unless a different intention is shown. ^ If the gift is to the next of kin of a person who sur- vives the testator, the period at which it is determined who are to take is, if no intention to the contrary appear, the death of that person; next of kin being taken in the statutory' sense, which imports the death of him to whom they are next of kin. The same would be true, it seems, if the gift were to the ' relations ' of a person so outliv- ing the testator, for ' relations ' primarily means ' next of kin ' according to the statute.^ The vesting must await the death of the one named — the one to whom 'next of kin' or 'relations' refers — and will apply only to those who first answer the description, without regard to the question whether by the terms of the will the distribution is to take place then or afterwards.^ This rule of construction, above named, which makes the death of the testator the time for ascertaining the next of kin (or the like), is not affected by the fact that the terms of the will may restrict the gift to such of the next of kin as ' shall be living ' at the time of distribu- tion; for this merely adds another element to the quali- fications required in the objects. A testator directed that personalty and the produce of realty should be invested to accumulate for ten years, and that then a certain part of the fund should be divided among such of his next of kin and personal representatives as should then be living. It was held that the next of kin at the testator's death, surviving the ten years, were intended.^ 1 Wharton i'. Barker, supra. 2 Varrell v. Wendell, 20 N. H. 431 ; Drew v. Wakefield, 54 Maine, 291 ; ante, p. 153. 3 Jarman, 983. * Spink V. Lewis, 3 Bro. C. C. 355 ; Bishop v. Cappel, 1 DeG. & S. 411. 284 THE LAW OF WILLS. Similar questions often arise upon gifts to children. or to brothers or sisters or other classes of relatives. Gifts to chii- What is the point of time at which the class daTseTo°f5eTa- ^^ to be ascertained? The general answer tions. is^ tliat an immediate gift to a class of per- sons takes effect in favor of those who constitute the class at the death of the testator, unless a contrary inten- tion can be found in the will or in such external facts as legitimately bear upon the case.^ That will be the result then when the point of time is not designated by the tes- tator, or when it is left indefinite by him.^ Taking the case of children for convenience,^ as the commonest, it makes no difference whether the gift be to the children of a person living or a person dead, or whether to children simply or to all the children.^ In some of the authorities, however, the date of the will, instead of the death of the testator, is treated as the point of time to reckon from.^ 1 Eussell V. Russell, 84 Ala. 48 ; Campbell u. Kawdon, 18 N. Y. 412 ; Dawson v. Schaefer, 52 N. J. Eq. 341, 344 ; Chasmar v. Bucken, 37 N. J. Eq. 415; Howland v. Slade, 155 Mass. 415, 416 ; Lee v. G^y, id. 423 ; Peck v. Carlton, 154 Mass. 231, 233 ; Lombard v. Willis, 147 Mass. 13; Whitney i;. Whitney, 45 N. H. 311 ; In re Mervin, 1891, 3 Ch. 197, 202. But a different case arises if there be no object in ex- istence at the testator's death. See infra, p. 292. 2 Jenkins v. Freyer, 4 Paige, 47. ^ That the rule applies as well to brothers and sisters, nephews and nieces, and cousins, see Jarman, 1015. 'But with regard to other classes of objects the gift would clearly apjily and be confined to those who were living at the death of the testator.' Id. * Jarman, 1010. ^ See Biggs I'. McCartj', 86 Ind. 352 ; Merriam v. Simonds, 121 Mass. 198; Yeaton i-. Roberts, 28 N. H. 459; Post v. Herbert, 12 C. E. Green, 540. Under the English Wills Act, it is held that in the case of a devise over if the devisee should ' die without leaving any male issue,' male issue living at the death of the testator is presumptively meant. Upton V. Hardman, Ir. R. 9 Eq. 157, followed with some hesitation in In re Edwards, 1894, 3 Ch. 644. SECONDARY CONSTRUCTION: CLAUSES. 285 Where however a particular estate is carved out, with a gift thereupon to the children of the person taking such estate, or the children of any other person, particular es- the gift will embrace prima facie not only tate, with gift ° T 1 /■ 1 to children of the objects living at the death of the testa- devisee or of tor, but those who may afterwards come -"^''^ther. into existence down to the time of distribution, and those only.^ Thus a testator makes a devise or a legacy to A for life, and after his death to the children of B. B has children living at the time of the testator's death, and others born afterwards before the death of A. All these children take; children born after A's death would not.'-^ Here again, the construction is not affected by a gift over in case of the death of any of the children under a stated age.^ It is not necessary that the prior estate should be for the life of the person taking it; the construction applies though the estate is to be determined in any other waj^, as by bankruptcy, — all who are in existence down to that point of time, and those only, being embraced in the gift.^ The rule of construction under consideration applies not only to gifts in which the subsequent interest is a i Budd V. Haines, 52 N. J. Eq. 488, 491 ; Ridgeway v. Underwood, 67 111. 419 ; In re Baer, 147 N. Y. 348 ; Bis8on ;;. West Shore R. Co., 143 N. Y. 125 ; Biggs v. McCarty, 86 Ind. 352; Bradley's Estate, 166 Penn. St. 300 ; Hall v. Hall, 123 Mass. 120; Blass i'. Helms, 93 Tenn. 166, 170; Harris v. Alderson, 4 Sueed, 250; In re Winter, 114 Cal. 186, 190 ; Jones's Appeal, 48 Conn. 60; In re Mervin, 1891, 3 Ch. 197, 202. See also Stanley v. Stanley, 92 Va. 534, where there seem to have been no after-born children. As to gifts and postponement of enjoy- ment, see ante, p. 255. 2 Ayton I'. Ayton, I Cox, 327. 8 Berkeley v. Swinburne, 16 Sim. 275. * In re Smith, 2 Johns. & H. 594 ; In re Ayhvia, L. R. 16 Eq. 590. See In re Bedson, 28 Ch. D. 286 THE LAW OF WILLS. remainder in realty, or what in personalty corresponds Euie of con- to a remainder, but also to executory gifts, appi'ies"to exec- ^^ ^^^^ effect in defeasance of a prior utory gifts. estate. Thus if a legacy be given to A, son of B, and if he shall die under age, to the other children of B, on the happening of the event all the children who shall then have been born, with those living at the tes- tator's death, will take.^ The principle, indeed, seems to extend to every future limitation, as for instance to a gift to the testator's children, to be divided among them at the expiration of twenty years after his death.^ The mere charging of lands, however, as for the pay- ment of debts or legacies, where the vesting in posses- Mere charging sion is uot postponed, will not let in future not'lStirone children. A testatrix devised lands for distribution. terms upon trust to raise certain sums of money to pay annuities, and subject to the terms gave the estate to all and every child and children of her brother A. The question was whether children of A, born after the death of the testatrix, but during the period of the annuities, were entitled, with children born before the death of the testatrix. It was held they were not, because the estate was given directly and not at a future period.' A more difficult case is presented where the period of distribution is postponed until the happening of some 1 See Blackman v. Fvsh, 1892, 3 Ch. 209. - Jarman, 1012 for the paragraph ; Oppenheim v. Henry, 10 Hare, 441, for the example. 8 Singleton v. Gilbert, 1 Bro. C. C. 542, note ; s. c. 1 Cox, 68. So in cases of personalty. Hill v. Chapman, 3 Bro. C. C. 391 ; s. c. 1 Ves. Jr. 405. SECONDARY CONSTRUCTION: CLAUSES. 287 event affecting each member of the class, but liable to happen to one at one time and to another ^ '■ Kveiit happen- at another. The point of time for fixing the ing at difterent members of the class cannot arrive, accord- '™^^* ing to the preceding rule, until the event happens, but the event may happen more than once; which happening is the one to be fixed upon? If the first, then only those who are in existence at that time are entitled to share the gift; if the last, then those who have come into existence since the first happening must be added to the number. In marriage settlements the last happening of the event has been fixed upon; but in wills, though not witliout the suggestion of doubt,^ the first happening. That is to say, the point of time for determining who constitute the members of the class to share the gift is reached when the event first happens to any of the class in ques- tion. Thus where the event named is the attainment of a given age by the members of the class, the gift will go to those who are living at the death of the testator and with them to those who come into existence before the first child, in the case of children, attains the age, and to those only. A testator bequeathed a residue of prop- erty ' unto all the children of A equally, when they shall severally attain the age of twenty-five years ' ; and it was held that the gift included all the children born before one of them attained twenty-five, though born after the testator's death, but did not include those born after one attained the ase.^ D^ The case may be such that some of the members of the class are already of the required age at the death of 1 Andrews v. Partington, 3 Bro. C. C. 401 ; Brandon v. Aston, 2 Younge & C. C. C. 30; Darker v. Darker, 1 Cromp. & M. 850. But the rule appears to be settled and justified, against the doubts. See Jarman, 1016. 2 Hubbard v. Lloyd, 6 Cush. 522. 288 THE LAW OF WILLS. the testator or other person named. If it is, the num- Members of the ber of the class is fixed at that time; it iToSator's cannot be enlarged by children born after-