A A ^^^== o 9 6 .IBI > 1 4 5 ^2 1 ^lii -A^LuiAW^goOKS 01.D. The Rochester, N.^ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LAW OF WILLS EXECUTORS AND ADMINISTRATORS By JAMES SCHOULER, LL. D. Author ol Treatises on "Domestic Relations" "Bailments" and "Personal Property," etc. FIFTH EDITION IN TWO VOLUMES Vol. 1 Wills Vol. 2 Executors eind Administrators VOL. 1 Albany^ N. Y. MATTHEW BENDER & COMPANY, INCORPORATED. 1915. COPYRIOHT, 1883, 1886, 1889, 1892, 1900, 1901, 1910, By JAMES SCHOULER. Copyright. 1915. By MATTHEW BEXDER & COMPANY, INCORPOEATED. 3v:> T NOTE TO FIFTH EDITION. At the special request of the present publishers of his condensed volume on " Wills and Administration," the author has prepared for publication a new edition of the original work in two volumes of his " Law of Wills " and " Law of Executors and Adminis- trators," bringing the later cases, American and English, down to date, and re-editing the entire work. As usual, the Tables of Cases are prepared by others; but, except for the assistance of a com- petent member of the bar in collecting the new cases for volume two, the entire revision of the present edition is the personal work of the author. He has gone over everv page of text and footnotes of these two volumes, altering, omitting or expanding, as seemed desirable, so as to give full scope to the newly added material. JAMES SCHOULER. Boston, September 1, 1915. ORIGINAL PREFACE TO EXECUTORS AND ADMINISTRATORS. The present work completes an investigation of the law of Personal Property, whose results the writer commenced publish- ing ten years ago ; an investigation pursued far beyond the limits originally proposed, but not without direct encouragement from his professional brethren. Four volumes properly comprehend the main subject, as follows : 1. The Nature, General Incidents, and Leading Classes of Personal Property. Schoulek on Personal Pkopeety, Vol. 1. 2. Title to Personal Property by Original Acquisition, Gift and Sale. Schoulek on Personal Peopekty, Vol. II. ; or, as it might well be styled, Schoulek on Gifts and Sales. 3. Title to Personal Property by Bailment. Schoulek on Bailments, including Cakkiers, Innkeepers and Pledge. 4. Title to Personal Property by Death. Schoulek on Execu- tors AND Administrators. Elementary writers discourse further of Title to Personal Prop- erty by Judgment and Insolvency ; but the law pertaining to these subjects is greatly controlled at this day by statutes of local appli- cation, and, besides, may be found amply discussed in text-books already familiar to the practitioner. A practical experience in the special branch of law which per- tains to executors and administrators has been found serviceable to the writer in preparing the present volume. The latest pub- lished reports, English and American, to the close of the year vii Vlll ORIGINAL PREFACE TO EXECUTORS AND ADMINISTRATORS. 1882. have been personally consulted by him, and cited so far as seemed desirable. The American decisions, reported in the United States Digest, have been carefully studied. Whatever other assist- ance has been received, from text-books, and especially from the elaborate English work of Williams, on this subject, is duly acknowledged in the foot-notes.^ Without instituting comparisons with other text-writers on this important branch of the law, the author may fairly claim, as he submits, that no work of a single volume is already before the professional public, presenting his- torically and logically the whole English and American law of executors and administrators, with a due regard for the modern practical needs of such fiduciaries and their legal advisers, separat- ing the main subject from those more abstruse topics which pertain to Wills and Testamentary Trusts, and giving to the excellent points of our American probate practice of this day the prominence justly deserved. He trusts, therefore, that the present work will be found to supply an actual want, in a genuine sense. JAMES SCHOULEK. Boston, March 31, 1883. 1 Williams on Executors and Administrators, 7th English Edition (with Perkins's American Notes) , is cited in the present work. Schouler on Wills (a companion volume), was subsequently published. ORIGINAL PREFACE TO WILLS. This book has been prepared as a companion volume to the author's work on " Executors and Administrators," which was issued about three years ago, and found a rapid sale. It treats of Wills, their nature, essentials, and mode of interpretation; while the former book discussed the Administration of estates, testate and intestate, and the rights and duties of Executors and Administrators; and the two volumes together fairly comprehend the English and American law relating to Estates of Decedents, traced historically and logically down to the present day. The writer's plan of treatment follows that pursued in his former volume, and described in its preface. Abstruse and superfluous details have been subordinated to the idea of clearly presenting to student and practising lawyer the main principles of our law; and, writing from an independent standpoint, the author has not felt hampered by the necessity of parcelling out our excellent American jurisprudence to hang in footnotes upon the random hooks of any English treatise. English and American systems are here freely compared, and their lines of legal thought placed in proper contrast. Statute models, forms of wills, and practical suggestions to testators will be found in the Appendix. In all matters which pertain to probate practice, it is believed that these two volumes will be found ample for general study and refer- ence; while under the final head of Testamentary Construction, in this volume, all the guiding principles are set forth, it is hoped, with sufficient fulness and precision. The only American work which may be thought to have occupied before a field like this is the well-known and popular one of Judge Redfield. But tBe peculiar preparation of that work was such that further revision from the author's hand was looked for ; and with the death of that accomplished scholar and revered friend, more than ten years ago, and the extinction of his family line, not ix X OKIGIXAL PEEFACE TO WILLS. only has revision failed altogether, but other writers need no longer feel delicate in taking up the task anew. The present author may truly say that he has found far less assistance from that work than from those English standard authorities, Williams and Jarman, as annotated by our competent American editors^^ The brief treatises of Hawkins and Sir James Wigram have proved service- able, too, under the head of Testamentary Construction; also Wharton and Stille on Medical Jurisprudence, where the wills of insane persons are discussed. All such assistance, English or American, is fairly sho^^Ti by the citations at the foot of each page ; and the present writer has collected his own materials, besides, re- lying throughout, as usual, upon his independent investigation of the law, and bringing the decisions, English as well as American, as nearly as possible to the date of publication. JAMES SCHOULER. Boston, January 1, 188Y. 1 Williams on Executors and Administrators, 7th English edition (Perkins's American notes), and Jarman on Wills, 4th English edition (Bigelow's Ameri- can notes) are cited in the present work. TABLE OF CONTENTS. Volume I. PAKT I. INTEODUCTORY CHAPTER. NATURE AND ORIGIN OF TESTAMENTARY DISPOSITION. Page § 1. Definition of Will ' 1 2. Last Will and Testament ; Testament and Testator 2 3. Gift, Devise ; Bequest 3 4. Property : Real, Personal and Mixed 4 5. Legacy 4 6. Wills, Written and Unwritten, or Nuncupative 6 7. Codicils, or Postscripts to Wills 5 8. "Will" includes "Codicil" 7 9. Testaments in the Civil Law; Special Kinds; Mystic, Holograph, etc 7 10. When a Will or Testament comes into Force; Revocation and Alteration 8 IL Effect of a Subsequent Statute upon One's Will 8 12. Origin of Wills; Natural Law of Succession 10 13. Origin of Wills; Historical Views of Succession 11 14. Origin of Wills in England 14 15. The Same Subject: Devises of Land 15 16. Origin of Wills in the United States 16 16a. Latest American Decisions 17 17. Prevalent Rule of Succession; the Will of the State and the Will of the Individual 17 18. The Same Subject: where the Will of the State is Paramount 19 19. The Same Subject: Husband and Wife 19 20. The Same Subject: Children unprovided for 20 21. The Same Subject: Gifts Void as creating Perpetuities, for Super- stitious Uses, etc 21 21a. The Same Subject: Gifts to Superstitious Uses, etc 23 22. The Same Subject: Gifts Subversive of Good Morals 24 23. The Same Subject: Personal Incapacity to take under a Will 25 24. The Same Subject: Incapacity of Corporations 27 25. The Same Subject: Infancy, Insanity, Coverture, etc., does not in- capacitate from taking 30 26. The Same Subject: Maxims of Testamentary Construction 30 (xi) Xii TABLE OF CONTENTS IN VOLUME I. Page § 27. The Same Subject: General Conclusion 31 28. What mav be given by a Will 32 29. The Same Subject: Property acquired after the Will was made.. 34 29a. The Same Subject: Property held jointly, etc.; Partners 36 30. Scpoe of Investigation to be pursued 36 30a. Legal Principles and Illustrations 37 PART II. CAPACITY AND INCAPACITY TO MAKE A WILL. CHAPTER I. TESTAMENTARY CAPACITY IX GENERAL. § 31. What Persons may make a Will: General Rule 39 32. Measure of Capacity the Same as to Property Real or Personal. . . 39 33. Whetlier Crime disqualifies from making a Will 40 34. Whether Aliens may make Testamentary Disposition 41 35. The Same Subject: Theory of a Devisable Title 42 36. The Same Subject: Modern Statutes affecting the Disability.... 43 37. Wliether a Sovereign may make a Will 45 38. Wills of Seamen, etc 46 CHAPTER II. INCAPACITY OF INFANTS. S 39. Incapacity of Infants founded in their Indiscretion 47 411, 41. Earlier Rule more Favorable to Infants' Wills than that of the Present Day 47, 48 42. Infant's Will Invalid, where Want of Discretion, etc., is sliown . ... 50 43. Modern Legislation treats the Wills of Infants with Disfavor. ... 50 44. Infant'.s Appointment of a Testamentary Guardian 51 CHAPTER III. INCAPACITY OF MARRIKD WOMEN. § 4r>. Inrftfinrity at Cr)miiioii Law arising from Ci)vcrturc 53 4ft .Nfarridgo a Hrvocation 54 47 .Modfrn Chnngi's effected by Courts and Legislation as to Wife's Inrnpnrity 5,5 48. ExroptionH tf» Inrnpncity: Wif.' may tx-cpicath with Husband's Aimont 55 TABLE OF CO^^TEJN'TS IX VOLUME I. XIU Page § 49. The Same Subject: American Rule 57 50. Wife's Disposition as Executrix 58 51, 52. Wife's Will of Separate Property; English Rule 59, 61 53. The Same Subject: where Spouses live apart 62 54. Wife's Will of Equitable Separate Property; American Rule 63 55. Modern English Statutes of Wills 64 56. 57. Wife's Will under Late American Statutes 05, 60 58. Wife's Will under the Civil Law; Present Tendency to Conjugal Equality 69 59. Re-execution of Will after Coverture; Expectant Property, etc.. 70 60. Devise or Bequest to the Husband; his Marital Influence 71 61. Husband's Agreement as to Wife's Testamentary Disposition of ]*er Lands 72 62. Mutual Wills of Husband and Wife 72 63. Wife's Gift Causa Mortis 73 64. Wife's Execution of a Testamentary Power 74 CHAPTER IV. INCAPACITY OF INSANE PERSONS IN GENERAL. § 65, 66. Will of an Insane Person Void; Difficulty of Modern Tests 76, 77 67. Standard of Mental Incapacity in Wills as compared with Con- tracts, etc 78 68. General Standard of Testamentary Capacity stated 81 69. The Same Subject: More Deference to Testator in Earlier Cases. 83 70. Incapacity is more than Weak Capacity; Enfeebled Testator may make a Will Si 71. The Same Subject: the Testator's Mind should act without Prompt- ing ; Attention aroused, etc 87 72. The Test of Testamentary Capacity should be referred to the Par- ticular Instrument and Transaction 87 73. Testamentary Capacity consistent with Execution of a Will in Ex- tremis 88 74. Testamentary Capacity consistent with Insane Delusions, etc 89 75. Modes of testing Capacity, as between Monomania and Habitual Insanity 90 76. Effect of Insanity where a Will a'nd Codicils are executed 90 77. Unjust and Foolish Wills viewed with Suspicion 91 78. The Just Will of an Insane Person considered 93 79. Manner of making and executing the Will 94 80. Testamentary Capacity as contrasted in Complex and Simple Es- tates 94 80a. Mistake as to Legal Effect of Will, etc., does not incapaciate 94 81. Will of one under Guardianship not necessarily Void O-i 82. The Same Subject: Adjudication of Idiocy 97 83. Sound and Disposing Mind and Memory 97 Xiv TABLE OF CONTENTS IN VOLUME I. ** - Page § 84. Testamentary Capacity not dependent upon Sound Health 98 85. Classification of Insanity; the Various Kinds 99 86. The Same Subject: Insanity Defined 100 87. Psychology of Mental Unsoundness, and Unity of the Disorder.. 101 88. Courts apply Practical Tests without attempting Exact Classifi- cation 102 89. Testamentary Capacity as applied in Tests of Mental Unsoundness or Coercion 102 89a. Each Case should be tested by its own Facts, etc 103 CHAPTER V. INCAPACITT OF IDIOTS, IMBECILES, AND PEBSONS DEAF, DUMB, AND BLIND. § 90, 91. Idiots are Incapable; What is Idiocy 104, 105 92. Idiots and Utter Imbeciles have no Testamentary Capacity.... 106 93. The Same Subject illustrated 107 94. Persons born Deaf, Dumb, and Blind 107 95. The Same Subject; Unfavorable Presumption, if any, may be over- come 109 96. Persons Deaf, Dumb, or Blind, but not born so, presumed Ca- pable 110 97. Liability of Deaf, Dumb, and Blind to Imposition and Error. ... Ill 98. The Same Subject: Wills of Blind Persons 112 99. General Conclusion as to the Wills of the Deaf, Dumb, and Blind 113 CHAPTER VI. LUNACY AND GENERAL MENTAL DERANGEMENT. § 100, 101. Scope of Present Chapter; Lunatics and Others of Mental Unsoundness in the Medium Degree 115, 116 102. The Same Subject: Illusions or Perversions 117 103. .Attempts of Experts and Others to classify Insanity 1*17 104 Common Symptoms or Manifestations of Insanity 118 105. The Will of a Lunatic or one Mentally Diseased is Invalid... 119 106. Effect of Restoration to Health, and Intermittent Insanity.... 119 \()7. Lucid Intervals 120 108. Lucid Intervals, as distinguished from Mere Abatement of Mania, ttc 121 109. Lucid Intervals in Cases which involve Testamentary Capacity 122 110. Will may be e.stahlislicd as made during a Lucid Interval; Bur- den of Proof 123 IIL Lucid Intervals; Clear and Satisfactory Proof required 125 1)2. CircumBtnnceH Favorabh; to Proof of L\jcid Interval; a Just and Natural Will 126 11.'! otii.r < 'irctirii^f.inr-cH ravorabic to Proof of Lucid Interval 129 TABLE OF CONTENTS IN VOLUME I. XV Page § 114. Lucid Intervals more easily established in Delirium, etc., than in Habitual Insanity 130 115. Proof should be scrutinized where Mental Disease is Insidious and Slow 130 116. Doubtful Instances of Mental Derangement; Paralysis, Prostra- tion, etc 131 117. The Same Subject illustrated: Mississippi Case 132 118. The Same Subject: Other Illustrations: Epilepsy, Apoplexy, etc. 133 119. Mental Condition nearly Contemporaneous with the Will, etc... 134 120. Suicide not Conclusive of Insanity 135 CHAPTER VII. DELIBIUir, DRUNKENNESS AND DEMENTIA. § 121. Delirium of Disease and its Symptoms 136 122, 123. Delirium Incapacitates; Effect of Lucid Intervals 137, 138 124. Delirium Tremens, and Drunkenness or Intoxication in Greneral. 139 125. The Same Subject: Drunken Habits may impair the Reason... 140 126. When Intoxication invalidates a Will, and the Reverse 141 127. Burden of Proof, etc., where Drunkenness is alleged 143 128. The Rule of Testamentary Capacity in Drunkenness illustrated. 143 129. Dementia as distinguished from Mania or Delirium 144 130. S«nile Dementia, or the Mental Decay of the Aged: Litigation on this Ground 145 131. The Same Subject: when the Mind begins to decay 147 132. The Same Subject: Loss of Memory One of the First Symptons of Mental Decay 148 133. The Same Subject: Casual Observers Untrustworthy as compared with those Familiar with the Testator 148 134. Senile Dementia disqualifies One from making a Will, but not Old Age Alone 149 135. 136. Wills of the Aged should be tenderly regarded 150 137. Instances in which Wills of the Aged have been sustained 152 138. The Same Subject: Circumstances favoring Probate of the Will. 153 139. Extreme Old Age suggests Vigilance in Probate; Mental Imbecil- ity vitiates 154 140. Instances in which Wills of the Aged have not been sustained. . . 155 141. Rule of Capacity for Dementia not Different from that for Mania 156 142. Opinions as to the Capacity of an Aged Testator carry no Great Weight in Doubtful Cases 157 CHAPTER VIII. MONOMANIA AND INSANE DELUSIONS. 5 143. Monomania a Preferable Term to Partial Insanity; the Mind a Unit 158 XVI TABLE OF CO^'TEXTS IN VOLUME I. Page § 144. Monomania defined: how distinguished from Eccentricitj' ; Insane Delusions _ 159 145. The Same Subject: Eccentricity further distinguished 161 146. Insane Delusion has no Basis in Reason; Reason and Evidence cannot dispel it 162 147. Delusions, Sane or Insane, in General 163 14S. Delusions which do not involve Mental Incapacity 164 149. Whimsical or Eccentric Behavior Does not incapacitate 165 150, 151. Illustrations of Eccentric Wills 165, 167 152. Eccentric Habits may afford Evidence of Insane Delusion 168 153, 154. Monomania or Insane Delusion involves Derangement; its Selfish Manifestations 168, 169 155, 156. English Opinions of Monomania as affecting Testamentary Capacity 170, 172 157, 158. English Cases stated where Wills were refused Probate be- cause of Insane Delusion 174, 176 159. American Maxims as to the Effect of Monomania upon Testa- mentary Capacity • 177 160. American Cases stated where the Will of a Monomaniac was sus- tained 179 161. American Cases stated where the Will of a Monomaniac was not sustained 180 161a. Sudden Manifestations, etc 182 162. 163. Insane Delusion to be distinguished from Prejudice or Error, as well as Eccentricity 182, 184 164. Where Will is not tainted by the Prejudice, Error, etc 185 165. Rational or Irrational, Just or Unjust, Character of the Will to be considered 185 166. 167. Leading Principles applied to Religious Opinions; Delusions upon Matters Supernatural, etc 187, 188 108. Wills of Persons believing in Witchcraft, Spiritualism, Clairvoy- ance, etc 189 CHAPTER IX. PROOF OF CAPACITY AXI) IXCAPACITY. f inrt. In Uncontested Cases of Probate, nuuh is taken for granted by tlie Court 191 I7'i. In Contested Cases, the Burden of Proof is upon the Propounder of tlie Will 192 171 The Rule of Burden of I'roof sometimes laid down otherwise as to Mental Capacity 193 17J. Burden of proving Capacity; Presumption in favor of Sanity; ConfiiHinn of RuleH 104 173. EngliMli Authorities on this Subji'ct 195 174. Amerirnn AiithoritieH on this Subject 196 TABLE OF CONTENTS IN VOLUME I. XVll Page § 175. The Same Subject; wliether Subscribing Witnesses must first testify as to Insanity 199 176. Where Evidence of Unsoundness appears from Examination of Witnesses, Proponent must overcome it 202 177. Production of Subscribing Witnesses if possible 203 178. Testimony of Subscribing Witnesses Important, but not Conclu- sive 204 179. English Practice as to producing the Subscribing Witnesses 205 180. Declarations of Deceased or Absent Subscribing Witnesses Incom- petent as to Sanity or Insanity 206 181. 182. How Witnesses may test Capacity for themselves; they should not Execute unless satisfied 206, 208 183. Effect of a Statement in the Attestation Clause, vouching for the Testator's Sanity 209 184. Proponent goes forward and has Right to open and close the Case 209 184a. Prima Facie Case, how established 210 185. Questions of Validity at Issue; Testamentary Capacity to be determined upon all the evidence 210 186. Testamentary Capacity at the Date of the Transaction the Real Point at Issue 211 187. Various Matters of Proof bearing upon this Issue: Insanity once shown, presumed to continue, etc 212 188. The Same Subject: Proof of General Insanity 213 189. The Same Subject: Proof of Lucid Interval or Restoration.... 216 190. The Same Subject: Proof of Monomania or Insane Delusion 217 191. Proof of Drunkenness, etc 218 192. Personal History of Testator in an issue of Insanity; Autopsy, etc 218 193. Declarations, Letters, etc., of Testator, how far Admissible as to Mental Capacity 219 194. Miscellaneous Points as to Evidence in Such Cases 221 195. The Same Subject: Declarations of those interested under the Will 223 196. Character of the Witnesses who testify as to Capacity 223 197. Whether Unprofessional Persons can give their Opinions as to Insanity , 224 198. Subscribing Witnesses, though not Experts, may testify as to Apparent Sanity 225 199. 200. Whether Other Witnesses, not Experts, may state their Opinions as to Sanity; Unfavorable Decisions 226, 229 201. The Same Subject: Favorable Decisions 230 202. The Same Subject : English Rule 233 203. Restrictions where the Opinions of General Witnesses are Admis- sible 233 204. Opinion of Physicians, Attendants, etc 235 205. The Same Subiject : Medical Experts, etc 236 Xriii TABLE OF CONTENTS IX VOLUME I. . Page § 206. Expert Testimony Admissible as to facts observed, or hypotheti- c-ally 238 207. The Same Subject. Limitations to Such Expert Testimony 238 208 To what Time Opinion of Witness relates; does not extend to Legal Capacity, etc 240 209. The Issue of Sanity is not to be concluded upon Mere Opinions; General Conclusions 241 210. Expert Testimony further considered; Books of Medical Science, etc ,242 211. Competency and Value of Expert Opinion '^ 244 212. In what Manner Questions should be put to an Expert 244 213. General Conclusion as to Expert Testimony 245 213a. Final Observations: Proof of Sanity and Due Execution; Effect of Probate, Costs, etc 246 CHAPTER X. ERROR,. FRAUD, AND UNDUE INFLUENCE. § 214. Error, Fraud, and Undue Influence remain to be considered in Connection with Testamentary Capacity 248 215. Fundamental Error vitiates a Will; Effect of Partial Errors 243 215a. An Instrument not bona fide Testamentary refused Probate. . . . 250 216-218. How far Errors may be corrected in the Probate.. 251, 253, 254 219. The Same Subject: expunging Something Erroneous, etc 256 220. Equity Jurisdiction to correct Mistakes -. 257 221. Where Fraud or Force vitiates a Will ? 258 222. The Same Subject: Importunity and Undue Influence 260 223. Equity Jurisdiction of Fraud and Force; Probate Courts decide Sucli Questions 260 224. General Considerations as to Fraud and Deceit 263 225. Fraud, Undue Influence, etc., vitiate when acting upon a Weak though Capable Mind 264 220. Bodily and ^lental Condition at the Time of Execution of Great Consequence in the Issue 264 227. Undue Influence defined; Something Sinister is always imputed in the Present Connection , 265 228. How Undue Influence may be exerted 268 229-231. To invalidate a Will for Fraud, Undue Influence, etc., Testa- tor'rt Free Aj^'ency must be overcome 269, 272, 273 231a. Bounty dlHtingulHlied from Legal Duty, in Such Issues 274 232. Fraud, ConHtrnint and Undue Influence relate to the Time of Execjjtion ; (V)nHtraint removed later 275 233. TfHtnmi-nt need nut originate with Testator; but the WJll must b<- hJH 276 231. .\ Will invnlidatcd for Fraud, Undue Influence, etc., fails as to All wIkih*' Benefit is procured 277 TABLE OF CONTENTS IN VOLUME I. XIX Page 235. These Maxims applied to Parental and Filial Relation 277 236. These Maxims applied to the Marital Relation; a Wife's or Mother's Influence, etc 278 237. The Same Subject: a Husband's Influence 281 237a. Existence of an Illicit Relation 281 238. Fraud, Undue Influence, etc., must have taken Effect; Natural or Unnatural Will, etc 282 239. Burden of Proof, as to Fraud, Force, or Undue Influence 285 240. The Same Subject: Evidence in Point freely admitted 289 241. Proof of Fraud, Forgery, etc 290 242. Character of the Evidence to establish Fraud or Undue Influence . 291 243. The Same Subject: Declarations of the Alleged Testator 294 244. Declarations, Admissions, etc., of Legatees or Parties in Interest. 297 245. Suspicious Circumstance that the Will is drawn by the Party de- riving a Benefit 298 246. Confidential Relation in General implies Opportunities which must not be abused 301 247. Proof that the Testator knew the Contents of the Will 305 248. Probate in Part, where Fraud, Undue Influence, etc., operated in Part 306 249. In General, a Full Probate does not insure against a Partial Failure in Effect 307 250. Full or Partial Failure of Probate through Incapacity, Fraud, Error, etc 308 251. Inspection of Instrument by Jury 309 251a. Mental Capacity and Undue Influence are Distinct Issues 309 251b. Undue Influence: Subsequent Parol Assent of Testator Insuffi- cient 309 PART III. FORMAL EEQUISITES OF A WILL. CHAPTER I. WHAT CONSTITUTES A WILL. § 252. Wills are written or unwritten; Modern Legislation requires most Wills to be in Writing and duly witnessed 311 253. Real and Personal Property now treated alike; but not so form- erly ' 312 254. But American Statutes relating to Wills are of Local Origin. ... 314 255. Holograph Wills; how far recognized by Legislation 314 255a. Will dra^vn up by Another 316 XX TABLE OF COXTEXTS IX VOLUME I. Page § 256. Other statute Peculiarities as to Form, Signature, and Attesta- tion 317 257. A Will not properly e.xecuted and attested, is Inoperative under Modern Statutes 318 258. Requirement of Writing, how satisfied; Materials to be used.. .. 319 259. Language, Native or Foreign, in which a Testament should be ex- pressed 321 260. A Will should be legibly written 322 261. A Will need not be dated, etc 322 262. Formal Words like " Will," " Testament," " Devise," " Bequest," are not Essential 322 263. A " Will " is Something Imperative, though Softer Words are employed 323 264. The General Form of Testamentary Instruments ; Effect of Legis- lation 324 265. 266. Xo Testamentary Form Requisite, if there be the Testamen- tary Intent 325, 326 267. Whether an Instrument is Testamentary or not, where Statutes require an Attestation, etc 328 268. The Same Subject 330 268a. The Same Subject; Miscellaneous American Cases 332 269. The Same Subject: Miscellaneous English Cases 333 270. Whether One Instrument may be partly a Deed or Contract and partly a Will 334 271. A Will is to be distinguished from a Gift Inter Vivos or Causa Mortis 335 272. 273. The Test in Doulitful Cases as between a W^ill and Some Other Instrument 336, 338 274. Posthumous and Ambulatory or Revocable Character of a Will. . 339 275. What a Testator executes as his Will, should so operate, not- withstanding his Mistake of Law 340 276. Writings, otherwise intended by tlie Maker, how far upheld as Testamentary by the Courts 341 277. E.xtrinsic Evidence not Admissible to dispute the Plain Tenor of the Instrument; Effect of Doubt, etc 342 277a. Doubtful Writing, if Pronounced a Will, fails unless formally executed 343 278. Wills made in Jest or without the Animus Testandi, etc 343 279. Regular Pafiers imply tlie Animus Testandi; otherwise with Pa- pers wliich iire not on their Face Testamentary 344 2S0. SfVfTiil I'lipfTH probated togctlier as constituting a Will; Will amt CodicilH, etc 344 2KI. In«<2. Tlip Same Subject: Parol Evidence, liow far Admissible; L;ittr A'b.y.iion in Form; Burden of Proof 347 TABLE OF CONTENTS IN VOLUME I. XXI Page 283. Reference of Will to a Lost or Inaccessible Will or Writing 349 284. Will may be written on Several Sheets incorporated together. . . 349 285. 286. Wills Conditional or Contingent 350, 351 287. The Same Subject; English Cases 352 288, 289. The Same Subject; American Cases 354, 356 290. The Same Subject: Bearing of Extrinsic Evidence in Such Cases 357 291. Wills may take Effect in the Alternative 358 292. Contingency or Condition not to be supplied by Parol Proof.... 358 293. Operation of Will left to the Discretion of Another 359 294. Papers which cannot be probated as Wills; Wills merely ap- pointing a Guardian; appointing to a Situation; excluding from Inheritance, etc 359 295. The Same Subject: W^ills which merely dispose of Real Estate. . 360 296. The Same Subject: Writings which merely revoke 361 297. Wills Good which simply nominate an Executor; Wills without an Executor 362 298. Wills Good which make only a Partial Disposition, or distribute as in Case of Intestacy 362 298a. Will Good, notwithstanding Blank Spaces 363 299. Wills executed under a Power 363 299a. Proponent of a Will must prove its Execution 364 299b. Valid and Invalid Provisions 364 CHAPTER II. SIGNATURE BY THE TESTATOR. 300. Statute Requirements as to signing; English Rule 365 301. Statute Requirements as to Signing; American Rule 366 302. Whether Execution signifies more than Signing, or includes Attestation 367 303. 304. Will may be signed by the Testator, or his Mark made, etc 367, 369 305. A Prudent Testator will write out his own Signature if he can. 370 306. Local Variations of Rule; Signature by Testator himself and by another distinguished 371 307. The Same Subject : English Rule 373 308. Testator's Name may be affixed by a Subscribing Witness 374 309. Seals are dispensed with; Sealing is not "Signing" 374 310. Misnomer or Discrepancy in the Signature, etc 375 311. Position of the Signature; English Rule 376 312. Position of the Signature; American Rule 379 313. Whatever the Place, a Signing must have been intended 383 314. One Signature or more for Several Sheets 383 315. One Signature where Will has been written by Portions 384 316. Signatures may be upon Paper fastened to the Will 384 Xxii TABLE OF CONTENTS IN VOLUME I. Page § 317. Wills of Blind. Disabled and Illiterate Persons: how made known to them 384 317a. Testator's Understanding on the issue of Execution 386 CHAPTER III. ATTESTATIOX AND SUBSCRIPTION BY WITNESSES. § 318. Attestation or Subscription independently of Statute 387 319. Attestation under Modern Statutes 388 320. Number of Subscribing Witnesses required 390 321. Signing or acknowledging before the Witnesses; English Rule 391 322. The Same Subject: Presumption of Due Attestation 393 323. Signing or Acknowledging before the Witnesses; American Rule 394 324. The Same Subject: Rule in Massachusetts, etc., where Will is to be acknowledged 395 325. The Same Subject: Rule in New York, etc., where Signature is to be acknowledged 397 326. Publication or Declaration that the Instrument is a Will 398 327. Simultaneous Presence of Witnesses 402 328. Subscription by Testator after the Witnesses; Acknowledgment by Witness not Acceptable 403 320. Request to Witnesses to sign 407 330. Attestation and Subscription distinguished 408 331, 332. What is Signing or Subscription, by the Witness 409, 410 333. Signing or Subscription Insufficient, wliere a Complete Intent to subscribe was wanting, etc 411 334. Subscription must be Animo Attestandi; noting Interlineations, etc 411 335. Position of the Signature 412 33f!. The Same Subject: Attestation on a Different Paper 414 337. TJie Same Subject: Attestation where a Will is written on Sev- eral Sheets 415 338. "Signing" and "Subscribing" Equivalent Terms; Differences as between Testator and Witness 416 339. Wliethor another may sign for the Subscribing Witness 416 340. 341. Subscribing "in Presence of" the Testator, etc.; English Kiih' 418,420 342. SiibfirTibing "in Preaoncc of" the Testator, etc.; American Rule 422 :M.'(. Siibs(ri|ition "in Presence of" a Testator Unable to see; Cog- iii/.aiicc wliicli (li.s[)(>nHcs with Sight 425 .'in. Certificate of .Arknowh'dgmeiit Siipcilinous Matter; Magistrate, etc. ; Other rormalitics 427 345. Rc-exocution, etc., if Necessary, sliouM be conducted with Care- ful Regard for FormalitieH 427 316. AtteHtation Clause ; no EsHential Part of a Will, but of Groat Convenience ^28 TABLE OF CONTENTS IN VOLUME I. XXIH Page § 347. Attestation Clause, Proof that all Formalities were complied with, etc 430 348. Subscribing Witnesses much relied upon; Effect of Other Tes- timony 348 349. Attestation to the Sanity of the Testator; Presumption, etc... 433 350. " Credible " or " Competent " Witnesses: who are Such 434 351. Competency on Common-law Principle; as referring to Date of Subscribing, etc 435 352. Mental Disqualification as a Witness; Disqualification of Chil- dren, Women, etc 437 353. Disqualification of Interest in a Subscribing Witness 438 354. The Same Subject: Judges, Executors, Incorporators, etc 439 355. The Same Subject: whether Husband and Wife are Competent for One another 441 356. Creditor or Remote Beneficiary, whether a Competent Subscrib- ing Witness 441 357. Legacies or Devises to Attesting Witnesses annulled by Statute 442 358. Competency of Interested Witnesses; Miscellaneous Legislation; Devise to Heir, etc 444 CHAPTER IV. NUNCUPATIVE OK OBAL WILLS. ( 359. Wills and Codicils usually require a Formal Execution;' Excep- tions stated ; Unattested Wills, Oral Wills, etc 445 360. Oral or Nuncupative Will; Definition; Such Wills rarely per- mitted 445 361. History of Nuncupative Wills prior to the Statute of Frauds.. 446 362. Nuncupative W^ills affected Personal but not Real Estate 448 363. Restraints upon Nuncupative Wills under the Statute of Frauds 448 364. Nuncupative Wills virtually abolished by Statute of Victoria, except as to Soldiers and Mariners 450 365. American Legislation and Policy concerning Nuncupative Wills. 451 366-368. Soldiers, Mariners, etc. : who constitute this Privileged Class 453, 455, 458 369. Points to be considered in Nuncupative Wills; distinguishing Testators Privileged and Unprivileged 458 370, 371. Whether the Testament must be made in Extremis. . .. 459, 460 372. The Place of Making the Will 462 373, 374. The Manner of Declaring One's Disposition 462, 464 375. The Requisite Number of Witnesses to the Will 465 376. Subsequent Reduction of the Nuncupative Will to Writing.... 466 377. Strictness of Proof as to all Material Facts 467 378. Informal Writings, whether \ipheld as Nuncupative Wills.... 468 379. Repeal or Alteration of a Written Will by a Nuncupative One. 469 XXIV TABLE OF CONTENTS IN VOLUME I. PART IV. REVOCATION, ALTERATION, AND REPUBLICATION OF WILLS. CHAPTER I. BEVOCATIO:^ OF WILLS. Page § 380, 381. Various Modes of Revocation; Modern Legislation affects the Subject 47i, 472 382. Oral or Implied Revocation not recognized 474 383 Revocation by Burning, Tearing, Cancelling, Obliterating, etc.... 475 384. The Same Subject: the Same Intention to revoke must accom- pany the Act 476 385. Will destroyed, etc., unintentionally, to be established as it existed 477 386. Effect of Intention to revoke where the Act does not correspond. 478 387. Burning, Cancelling, etc., must be by Testator himself, or under his Direction, etc 479 388. No Witnesses Necessary to the Burning, Cancelling, etc 481 389. 390. Destruction of a Will by Burning, Tearing, etc., illustrated: English Cases 482, 483 391, 392. Cancelling, Obliterating, etc., illustrated: English Cases 484, 485 393, 394. Burning, Tearing, Cancelling, etc., illustrated: American Cases 486, 487 395, 396. Incomplete Burning, Tearing, Cancelling, etc 489, 491 397. Revocation of a Part only of a Will by Destruction 492 398. Difficult^' where the Revocation depended upon Another Act. . . 495 399. Revocation, where Wills are executed in Duplicate 497 400. Effect of Destroying, etc.. Will, but not Codicil 498 401. Presumptions, etc., where Will is found mutilated, defaced, etc. 499 402. Prc'sumptiofi, etc., where Will cannot be found 501 403. Declarations of the Testator in issues of Revocation 503 404. Rr-v(>oati(m by Subsequent Will or Codicil 504 405. Swlwequf-nt Will does not revoke unless duly executed 505 406. If .Subsequent Will dispose inconsistently, it is enough 506 407. But Later Will does not revoke unless inconsistent 507 408. Intention to revoke must be Immediate, and not Prospective or Dependent 509 409. In'lination against Revocation; I'se of a Codicil 509 410. Revocation by Subsequent Will under a False Assumption of Facts 511 411. Two Wills of the Same Date, etc 512 41:.'. Whcr*; Ri-voking Will cannot bo found; Proof of Revocation, etc. 512 413. Whether tlie Revocation of a Later Will can rerive an Earlier One 513 TABLE OF CONTENTS IN VOLUME I. XXV Page § 414. The Same Subject: Present English Rule 515 415. The Same Subject: American Rule 516 416. Reference of Codicil to Either of Two Wills 519 417. 418. Express Revocation by Later Will, etc 519, 520 419-421. Express Revocation by Other Writing 521, 522, 523 422. The Same Subject: Latest Legislation 524 423. Evidence under a Written Revocation 526 423a. Miscellaneous Instruments considered 526 424. Revocation by Inference of Law; Effect of Subsequent Marriage. 526 425. 426. The Same Subject: Marriage and Birth of Child 529, 531 426a. Effect of Full Divorce 534 427. Other Cases of Implied Revocation ; Alteration of Estate, etc. . . 535 427a. Mental Incapacity, Fraud, Force and Error, in issues of Revoca- tion 537 CHAPTER II. ALTERATION OF WILLS. S 428. Tlie Word "Alteration;" Alteration of Disposition or of an In- strument; Partial Revocation 539 429. Alteration of the Instrument to be first considered; Testator's Right to alter 539 430. General Right of Testator to alter 540 431. Intention should accompany; Alterations which do not revoke.. 540 432. Modern Legislation treats Informal Alterations with Disfavor.. 542 433. The Same Subject: Effect of Alteration, etc., so as to render Illegible 543 434. Probate with or without Interlineations, etc 544 435. Presumption as to Time of Alterations, etc.; Proof 545 436. Alteration in a General Sense expressed by Codicil 546 437. Codicil does not revoke Will except so far as Necessary 547 438. Later Provisions, Whether by Way of Substitution or Addition. 548 439. Whether Revocation of the Codicil takes Effect upon the Will; and Vice Versa 549 440 Misrecital of Will in Codicil; their Mutual Comparison 551 440a. Probate of Codicils 551 CHAPTER III. REPUBLICATION OF WILLS. § 441. Republication defined; Acts Express and Impliel 553 442, 443. Express Republication; Statutes requiring Re-exc-cution or a Codicil, etc 553, 554 444. Implied Republication 556 445. The Same Svibject: Oral Instances cited 557 XXVl TABLE OF CO^'TENTS IN VOLUME I. Page § 446. The Same Subject: Oral Revival after Revocation by Act of Law 558 447. Implied Republication by Codicil or Writing 559 448. General Effect of Codicil in reviving what was imperfectly ex- ecuted 561 448a Proof of Codicil, as Establishing Proof of ^Yill 561 449. The Same Subject: Former Efficacy of Republishing so as to dispose of After-acquired Property 563 450. Republication brings down Will to Date 564 PART V. WILLS rPOX VALUABLE CONSIDERATION. CHAPTER I. JOINT AND MUTUAL WILLS. 451. Wills are Revocable, because of the Nature of the Gift 565 452. But a Will may be upon Valuable Consideration and Imperative. 566 452a. Will admissible to Probate, notwithstanding Breach of Contract. 567 453. The Rule of Valuable Consideration practically applied; Legacies as Payment for Services, etc 567 453a. Other Instances of Valuable Consideration 570 454. Contract for a Certain W^ill specifically enforced in Equity 571 455. Joint or Mutual Wills 573 456. The Same Subject: Joint or Mutual Wills as to Probate 574 457. The Same Subject: Some Cases show Reserve and attempt Dis- tinctions 575 458. A Will jointly executed which disposes only of one Person's Property is not a Joint Will 577 458a. Right to revoke a Joint or Mutual Will 577 459. Where Probate must be delayed until Both or All Testators die. 578 460. Joint or Mutual Will conditionally expressed 579 PART VI. CONSTRUCTION OF WILLS. CHAPTER I. f.ENEn.XL RULrS OF TE.STAMENTARY CONSTRUCTION. I 4»il. Modern Precedents Many; Deeds and Wills Compared 580 462, 463. Rules of Te-taniontary Construction are of Limited Scope 581, 583 TABLE OF CONTENTS IX VOLUME I. XXVll Page 5 464. Difficulty of applying Rules of Interpretation 584 465. Construction aided or unaided by Extrinsic Evidence; the Latter here considered 585 466, 467. Cardinal Rule that Testator's Intention shall prevail. . 586, 588 468. The Whole Will must be taken together 588 469. Language taken according to the Testator's Situation 590 470. Technical Words; how far controlled by Testator's Intent 590 471. Technical Words not Necessary; Words occurring more than once 592 472. Words to be taken in Usual Sense ; Punctuation, etc 592 473. Courts give Effect if Possible to All Parts of a Will 593 474. Later Clause, how construed With an Earlier One 594 474a. Same Words in a Clause applied to Different Subjects or Objects. 595 475. General Description, whetlier limited by Particulars 595 476. Regard paid to the Predominant Idea of the Will 595 477. Courts will change or mould Language, etc., so as to give Inten- tion Effect 596 478. Treatment of Repugnant Parts 599 479. Favor to Heir or Next of Kin, considered 601 480. 481. The Same Subject: Favor to Children and Lineal Descend- ants, etc 602, 604 481a. Favor to the Surviving Spouse 604 482. The Same Subject: Deeper Principle favors what is Just and Natural 605 483. Devise without Words of Limitation; Heir as against Devisee.. 606 484. The Same Subject; "Estate," etc.; Effect of a Charge, Gift over, or Trust 607 485. The Same Subject : Modern Statute Rule of Construction 609 486. When a Will takes effect; After-acquired Property 609 487. Codicil construed with the Will 611 488. Some Effect should be given to a Will 613 488a. Effect of Will; whether controlled by Change of Condition of Estate 614 489. Presumption of Compliance with Law; Legal and Illegal Pro- visions, etc 614 489a. Presumption against a Revocation 615 490. Presumption against Partial Intestacy 615 491. By what Local Law Wills are interpreted 616 492. Summary: Mr. Jarman's Rules of Construction 619 492a. Proceedings to obtain Construction of Will 621 CHAPTER II. DETAILS OF TESTAMENTARY CONSTRUCTIOX. § 493. Details to be considered; as to the Property described in the Will ; Modern Legislation, etc 622 494. Descriptions relating to Real Estate: Leaseholds 622 XXviii TABLE OF CONTENTS IN VOLUME I. Page § 495. The Same Subject: Trust Estates and Mortgages 623 496. The Same Subject: Reversionary Interests, etc 624 497. The Same Subject: Lands contracted for 625 498. The Same Subject: "Land"; Tenement"; "Hereditament"... 625 499. The Same Subject : " Messuage " ; " Premises " 626 500. The Same Subject: " House," " Mill," etc 626 501. The Same Subject: "Appurtenances " and Similar Expressions. . 628 502. Devise of a " Farm," " Freehold," " Home," etc 629 503. Devise of "Rents and Profits"; "Use and Occupation"; "In- come," etc 630 504. Descriptions relating to Personal Property; "Mortgages"; "Se- curities for Money," etc 631 505. The Same Subject: Gift of "Money" or " Moneys," "Cash," etc. 632 506. The Same Subject: " Movables "; " Personal Property " 635 507. The Same Subject: Gift of Interest, Income, or Produce of Per- sonalty ; Words of Inheritance 636 508. The Same Subject: "Goods"; "Chattels" 637 509. Descriptions relating to both Realty and Personalty: "Effects"; " Possessions " ; " Things " 637 510. The Same Subject : " Estate " ; " Property "...-. 638 511. 512. The Same Subject: Miscellaneous Terms of Description 639, 640 513. Description of Gift; Devise; Legacy; Bequest, etc 641 514, 515. Description of Gift; General Terms how far restrained by particular Enumeration 644, 647 516. A False Description does not vitiate, etc 648 517. But Particulars may qualify a General Description 649 518. Repugnant Description; Language of Will not to be subverted.. 650 518a. Real E.state with the Personalty thereon 651 519. Residuary Bequest of Personalty; its Effect 652 520. The Same Subject: General Bequest of a Particular Residue 654 521. Residuary or General Devise, and its Effect 655 522. Devise of Residue, etc. ; Residuary Clause 656 523. Residuary Bequest or Devise as to Intermediate Income 658 524. Residuary Bequest or Devise as to Gift of Proceeds of Sale, of Reversionary Interests, etc 660 525. 526. Devises and Bequests in Execution of Powers 661, 662 627. Correction of Errors in describing Property 663 528. Object of Gift next to be considered 663 529-532. Gift to Children, etc., as a Class, how treated 664, 666, 667, 669 532a. The Same Subject : Incidents of Gift to a Class 670 533, 534. Words describing Object of Gift; "Children," "Grand- children " 670, 672 535. " Issue," " Descendants," etc., as Objects of a Gift 676 535a. Surviving SfK)uso as Object of Gift 677 636. Cxtljiiteral Relatives as Objects of a Gift 677 637. " Relntifins," " Family," etc., as the Objects of a Gift 679 637a. " I'.eneficiarieH " as ttie Objects of a Gift 682 638-541. Taking p.r Capita or jkt Stirpes 683, 684, 685, 688 TABLE OF CONTENTS IN VOLUME I. XXIX Page 542, 543. "Heirs" and "Next to Kin," as used in Bequest 689, 692 544. " Representatives," " Executors and Administrators," etc., as used in Bequests 694 545, 446. Heir how far favored when Realty is undisposed of . . . . 696, 698 547, 548. Meaning of " Heirs " as applied to Real Estate"; or where Real and Personal are blended 698, 700 649. Devise of Lands, Estate, etc., in Fee 701 550. Words "Estate," "Property," "Residue," "Remainder" 704 651, 552. Customary Heir; Heirs Male of the Body, etc 705, 706 553. Estate Tail in a Devise; "Heirs"; Shelley's Case 707 553a. The Same Subject: Limitation and Purcliase 710 554. The Same Subject: " Issue " 711 555. The Same Subject : " Children," etc 712 556. The Same Subject: Estates Tail not favored in the United States 713 657, 558. Bequests of Personalty; whether Absolute or for Life.. 714, 715 559. Devise or Bequest ; whether Absolute or not 716 560. Life Estate and Remainder in Gifts; Executory Devise 718 561. Devise or Bequest by Implication 721 662. Gift in General, whether Vested or Contingent in Interest 723 562a. Vested Estates Defeasible, etc 727 663. Beneficiaries : when ascertained 728 664. The Same Subject: " Dying without Issue," etc 731 564a. Prolonged Restraint upon Alienation not favored 733 665. Substitution, Survivorship, etc 733 565a. Power of Disposition by first Beneficiary 736 566. Interest, whether by Way of Joint Tenancy or Co-Tenancy; Hus- band and Wif t j etc 737 566a. Gifts to Servants, Strangers, etc.; Miscellaneous Points. 739 CHAPTER III. EXTBINSIC EVIDENCE TO AID CONSTRUCTION. 567. Admission of Extrinsic Evidence in General; Rule applied to Wills 741 568. 569. Extrinsic Evidence to control, contradict, etc., Inadmissible 742, 744 670. Parol Evidence Inadmissible to change Rules of Construction, etc. 746 571. Meaning of Words interpreted by Will; Punctuation, etc 747 572. Extrinsic Evidence, how far Admissible to resolve what is Doubt- ful 748 573. 574. Extrinsic Evidence in Aid of an Equivocal Descriptibn. . 749, 750 675. The Same Subject: Late English and American Cases compared.. 752 576. Conclusion as to Extrinsic Proof of Intent in Case of Doubtful Description 755 577. Reference to Context in Equivocal Description 755 578. Extrinsic Proof cannot aid to misconstrue 756 ■yyy TABLE OF CONTENTS IN VOLUME I. Page § 579, 580. Extrinsic Proof of Facts and Circumstances, not of Intention, how far Admissible 758, 760 581. Latent and Patent Ambiguities in this Connection 762 582. Extrinsic Proof of Custom and Usage; Deciphering, Translating, etc 763 583. Misnomer, Nickname, etc., corrected; Subject or Object of Gift, Executor, etc., identified 764 584. Blank in a Will : Omitted Gift not inserted 767 585. Devise or Bequest to Children, Wife, etc 768 586. Parol Evidence to prove or repel a Resulting Trust 769 587. Effect of Language in Will not to be varied 770 588. General Summary; Faikire of Gift Notwithstanding Extrinsic Evidence 770 589. General Summary; Extrinsic Evidence always Admissible to aid in Right Interpretation 772 590. Sir James Wigram's Propositions stated 772 CHAPTER IV. MISCELLAXEOUS PROVISIONS CONSIDERED. § 591. Gifts sufficiently or insufficiently Certain 774 592-594. Uncertainty in Subject or Object 775, 777, 779, 780 595. Uncertainty in creating a Trust; Precatory Trusts 781 596. Uncertainty in creating a Trust; Gift for Specified Purpose 786 597. The Same Subject: General Conclusion 788 598-600. Testamentary Gifts upon Condition Precedent or Subsequent 789, 791, 794 601, 602. Special Conditions considered; Restrictions upon Alienation, etc ...797, 799 603. Conditions in Restraint of Marriage 802 604. Condition as to Residence, assuming Name, maintaining Good Character, etc 806 605. Condition not to dispute the Will, etc 808 605a. The Same Subject: Bond to abide by Provisions of Will, etc... 811 (tOi't. Conditions against Baiikrujjtcy or Insolvency; Spendthrift, Trusts, etc 811 C07. Limitation, etc., distinguished from Condition 814 608, 609. Rights and Duties of Testamentary Trustees 814, 816 610. Trusts which are Invalid or liable to be set aside, etc 818 611. Executors holding in Trust, etc 819 APPENDIX. A. LKAnrxr, Wills Acts, Enoi.isii and American 821 B. FoBMH OK Wills 835 C. ,*>ITGGE8TI0NS TO PERSONS MAKINO THEIR Wn.LS 842 Index 847 TABLE OF CASES. See Axso 'Jable of Cases i?i Vol. 2. (References are to sections. Many cases are cited in this volume without tlio name.) A. Abbott V. Abbott V. Bradstreet V. Lewis 535, 56Ga, Abney v. Miller Abraham v. Wilkins 303, 306, Abrey v. Newman Acherly v. Vernon 447, 487, Ackerman v. Fichter Ackers v. Phipps. . . '. Ackroyd v. Smithson Adair v. Adair V. Craig Adams v. Adams 540, 561, V. Field 312, V. Massey Adams v. Methodist Church. 185, V. Norria 259, Goods of Addeman v. Rice Addington v. Wilson Addy V. Grix Aikin v. Weckerly. . . 174, 176, Ainsworth. Goods of Alcer's Will Albrecht v. Pell Alchin's Trusts Alder v. Beall Alexander v. Beadle 177, Aldrich v. Aldrieh 240, 274, y. Gaskill 502, Alford V. Earle V. Johnson Allardice v. Allardice Allen V. Allen 353, 458, V. Bowen Sec. 348 503 573 445 323 541 41)7 21a 523 545 245 26S 605 325 478 246 365 258 520 168 327 342 311 335 57 593 540 1T8 422 516 444 237a 456 539 518 Sec. Allen V. Bromberg 454 V. Craft 602 V. Griffin . ...174, 322, 324, 328 V. Hunt 565a V. Jackson 603 V. Little 57 V. Lyons 575 V. :Maddock 282 V. ]\[arkle 535 V. M'Pherson . ...219, 223, 248 V. School Fund 564 V. White 475, 514 Allen's Appeal 513 Allen's Will 329, 342 Allison V. Allison 265, 324 325, 329, 384, 472 Alpaugh's Will 323, 325, 347 Alsop V. Alsop 489, 490 Alsop V. McArthur 56 Alston V. Davis 255 Alter's Appeal 62, 215, 460 Ambre v. Weishaar 342 American Bible vSociety v. Mar- shall 24 V. Price 140, 159, 161. 201 Ames, Re 195, 207 Ames' Will, Re 195 Amory v. Fellowes S51 V. Meredith 526 Anderson v. C«.ry 602 Anding v. Davis 454 Andress v. Weller. .126. 127. 191, 218 Andrews v. Bruuilicld 526 V. Emmot 525 V. Lincoln 489 V. Partington ' 531 (xxxi) JIXXll TABLE or CASES IX VOL. I. See also Table of Cases in Volume II. iSkC. Andrews y. Rice 489, 5G5 V. Schoppe 475, 494, 514 Andrews, Re 118, 207, 239 Andrews' Will 312 Angell V. Angell 551 Angus V. Xoble 595 Anstee v. Xelms 583 Anstee'3 Goods 311 Anstey v. Dowsing 351 Anstice v. Brown 34 Anstruther v. Chalmer 491 Anthony v. Anthony 21 Appel V. Bycrs 481, 534 Apperson v. Dowdy 402 Applebec, Goods of 398 Appleby v. Brock 198, 201, 203 Apploton V. Rowley 544 Apreece v. Apreece 596 Archambault's Estate 492a Archer v. Deneale 510, 550 V. Jacobs 532 V. Mosse 223 Goods of 322 Archer's Caae 552 Arcularies v. Swctt 571 Arendt v. Arondt 264 Armant's Will 312 Armitiifje v. Williams 531 Armhtroiig v. Amistrong. . . .237, 268 27.], 274, 312, 454, 487 V. IIuddle8tf)ne 229 Arnault v. Arnault 22, 230 Arndt v. Arndt .309 Arn»'«on's Will 343 Arnett v. Arni-tt 374 Arnold v. Aldcn 554 V. Arnold 20, 514 V. Brown .W4 V. <^'hii[)man 524 V. Earlf 42 Arnold's Kntato 223, .509 Arrow v. .MclliHh 541 Arrow*mith'K TruHt 437 Arthur, G'kkIh of .'ill A«hmorc, (iooiU of 331. .■{.'{2 Anhton's Estate 542 Sec. Asbworth v. Carleton 365 V. Outram 52 Aspy V. Lewis 480 Asten V. Asten 583 Astor, Goods of 281 Atcheston v. Atchcston 566 Atherton v. Crowther 539, 544 Atkins V. Kron 522 V. Sanger 195 Atkinson v. Morris 403 Atlee V. Hook 53 Attorney-General v. Jones 265 V. Parntlier 109 Attree v. Attree 511 Atwood V. Alford 596 V. Geiger 540 V. Weems 28, 497 Aubert v. Aubert 67 Aubert's Appeal 423a Aulick V. Wallace 477 Aumack v. Jackson 242, 249 Aurand v. Wilt 268, 342 Austen t. Gr.iliam 151 Austen v. Kuehn 454 Austen's Goods 367 Austin V. Austin 213a V. Davis 454 Avaro v. Avaro 329, 342, 346 iiveling V. Association 512 Avery v. Pixlcy 309, 393 Axford, Re 98, 317 Aj-res V. Ay res 84. 160, 320, 342 Ayroy v. Hill 124, 127 Ayton v. Ayton 530 B. Baaeke v. Baacko 426, 427 Baff v. Harrison 266 Baddelcy v. Baddolcy 52 Bagot, Re 477, 490 Bailey v. Bailey 8, 252. 296, 418 Bailey, Goods of 120, 308 V. Hoppin 28 v. Pattor.son 563 Ifailey, Ro 407 Main v. Lcscher 529 TABLE OF CASES IN VOL. I. XXMlll See also Table of Cases in Volume II. Sec. Bainbridge v. Bainbridge 505 Baird v. Baird 371, 373 V. Boucher 527, 576 Baker v. Baker 126, 174 193, 312, 512, 535 V. Batt 77 V. Dening 303 V. Farmer 520 V. Lewis 188 V. Pender 477 Baker's Appeal 281, 348, 519, 570 Baker's Will 248 Balcorn v. Haynes 539 Baldwin v. Baldwin 342 V. Barber 281 V. Parker ....174, 229, 239, 240 V. Rogers 529, 530 V. Spriggs 426 Ballard v. Carter 427 Ballantine v. Foster 541 Bank v. Billings 562 Banks v. Goodfellow 67, 68, 74 136, 156, 158, 159, 165, 188, 190 Banks v. Howard 453 Banks v. Sherrod 43 Bannatyne v. Bannatyne 81, 91 92, 112 Banzer v. Banzer 478 Baptist Church v. Robarts. .393, 401 Baptist Convention v. Ladd.... 213a Barber's Appeal 174, 185 Barber v. Bai-ber 268, 297 Barber, Ex parte 504 Barber v. Pittsburg, etc., R..... 542 Barclay v. IVIaskelyne 410 Barden's Goods 295 Ball's Estate 16a, 227, 236 Baltimore v. Williams 265 Bancroft v. Ives 20, 426 Barker v. Barker 529 V. Bell 442 V. Comins 199, 218 V. Greenwood 609 Barker's Goods 270, 273 Barkley v. Cemetery Ass'n 240 Barlow v. Bateman 604 Sec. Barnaby v. Tassell 514 Barnes v. Barnes 347 V. ( rowe 447 v. Patch 510, 537 V. Rowley 59G V. Vincent 64 Barnes' Will 394 Barnesly v. Powel 223 Barnett v. Barnett 461, 565a V. Blake 602 Barnewell v. Murrell ..284, 298, 326 Barney v. Arnolds 602 Barney's Will 240 Barnhizel v. Ferrell 534 Barraelough v. Greenhough 223 Barrett v. Buxton 126 V. Garden 606 Barrington v. Tristram 534 Barry v. Butlin 170, 173. 179 245. 247 Barstow v. Goodwin 535 Bartholomew v. Henley 265, 438 Barton's Estate 267, 288 Barton v. Collingwood 287 V. Tuttle 548 Basket v. Hassell 271 Baskin v. Baskin 325, 326, 346 Bassett's Estate, Re 511, 5r2 Bateman v. Pennington 258, 267 Bateman's Trust, Re 33 V. Hacking . 415, 421 V. Kingsley 514 Battle V. Speight 11 Batton V. Watson 250, 384, 385 Bauman v. Russian 454 Bauskett v. Keitt 402 Baxter v. Abbott 174, 175, l;-0 192, 199, 204, 205, 206 V. Bo-nyer 478 Baxter's Goods 294 Beadles v. Alexander 348 Beales v. Crisford 505 V. Storm 56 Beall V. Cunningham 195, 281 448. 487 V. Mann 247 XXXIT TABLE OF CASES IX VOL. I. See also Table of Cases in Volume II. Sec. Beall V. Schley 605 V. Wilson 492a, 002 Bean v. Bean 1C2 Bear v. Bear 516 Beard, Re 604 Beardsley v. Faireliild 542 Beatty v. Clegg 402 V. Lalor 50.5 V. Eichardson 22 y. Universalist Society .... 583 V. Western College 210 Beaty v. Beaty 266 Beaubien v. Ciotte..l75, 198, 201, 203 208, 209, 236, 240, 242, 243 Beanclerk v. Dormer 564 Beaumont v. Fel 574, 575, 580 V. Keim 415 Beaumont's Estate 268 Beckett v. Harden 437 V. Howe 321 Beckett, Re 326, 515 Beck's Estate 24 Bectine v. Hodgson 523 Bedell v. Clark 491 Bedford v. Bedford 417, 549 Beebe, Re 275 Bekman v. Bonsor 21, 519 Beemer v. Beemer 70, 118, 185 242, 497 Belirons v. Behrens 402 Beirnc v. Beirne 524 Bolasjrse v. Lucan 502 Belgard v. Girtor 27 A Belknap v. Tillotson 453a Bell V. Fothergill 401 V. McMaster 203 V. Smallfv 566 "Bnllairfi v. B.llairs 003 Belt V. Lazenhy 454 Belton V. Simimpr 42eitripk 479 BenKonpfh v. Kd ridge 21 Benjamin's Will 70, 116 Benner's Will 465. 562, 570 Bennett v. Haelielnr 511 V, Bennett . ..240, 245, 409, 477) Sec. Bennett v. Bittlc 500 V. Jackson 373 V. Marshall 577 V. Sherrod 387, 401 Benoist v. Murrin 07, 83, 144- 159, 160 Bensberg v. Washington Univer- sity 77, 141, 174 Benson v. Benson 384 V. Corbin 564 Benison's Estate 427, 56G Bent's Appeal 249 Bentley v. Kaufman 558 Benton v. Benton 514 V. Scott 195 Berberet v. Berberet . . .239, 346, 364 Bergdorf s Will 16a Bernal v. Bernal 551 Bernsee's Will 34S Berry v. Berry 533 V. Trust Co 68, 192 Besancon v. Brownson 405 Best V. Berry 570 V. Best 127 Bethel v. Moore 393 Bettison v. Bromley 354 Betts V. Harper 457, 459 Bevelot v. Lestrade 71 Beaver v. Spangler. .78, 140, 276, 192 193, 206 Bconsee's Will 348, 349 Bibb V. Thomson 390, 395 Bibbens v. Potter 592 Bice V. Hall 198 Biddulph V. Hole 4-10 V. Meakin 499 Bigelow V. Gillott 397, 430 Bilke V. Roper 59 Billiiii,r!iurst v. Vickors 250 Hillings' Appeal 209 Bills V. Bills 595 V. Putman 488a Bingliam v. Isham 377 Bioren v. Ncslcr 326 Birch V. Birch 435 TABLE OF CASES IN VOL. I. XXXV See also Table of Cases In Volume II. Sec. Bird V. Bird 134, 136, 239 V. Pope 454 Birdsall v. Hewlett 562 Birdseye, Re 246 Birks V. 13irks 384, 385, 411 Birks, Re 535 Bishop V. Bishop 11 V. McClelland 490, 561 V. Wall 52 Bizzey v. Flight 281 Black V. Ellis 191 V. Herring 595 V. Hill 575 V. Richards 518, 574, 583 V. Shreeve 277 Blackborn v. Edgley 500 Blackburn, Re 299 Blackett v. Ziegler 397, 415, 442 BLicklry v. Webb 540 Blackman v. Andrews 77, 185 Blackmer v. Blackmer 513 Blacksher Co. v. Northrup 491 Blackwell v. Bull 537 Blackwood v. Darner 216 Blagge V. Miles 467, 480, 526 Blagrave v. Blagrave 609 Blaine v. Chamber 500 Blair v. Scribner 582 Blaisdell v. Hight 509 Blake v. HaMkins 466, 526, 579 V. Ronrke 116 V. Stone 553 Blake's Trusts 561 Blakeman v. Sears 409 Blakemore's Succession 401, 427 Blakey v. Bl-xkey. . 195, 227, 229. 244 Blakely's Will 159, 163, 193 Blanchard v. Blanchard.386, 394, 395 V. Nestle 230 Bland v. Bland 470 V. Lamb 519 V. Bell 503 Bleckley, Goods of 439 Bledsoe v. Bledsoe 229 Bleecker v. Lynoli..l32, 136, 137, 230 Bless V. Blizzard 453 Sec. Blewitt, Re 434 V. Roberts 507 Blodgett V. Moore 424 Blood's Estate 201 Bloodgood V. Lewis 397, 468 Blough V. Parry 170 Blouin V. Phaneuf 512 Blue V. Patterson 223 Boardman v. Woodman 159, 162 174, 175, 180, 184, 200, 211 Bobb's Succession 406 Boehm's Goods 219 Boell V. Schwartz 218 Bogan V. Swearingen 272 Bogart, Re 327 Bohanon v. Walcott 415 Bohleber v. Rebstock 386, 387 ] 'ohlcr V. Hicks 162, 229 Boldney v. Parris 342 Boling V. Boling 265 Bolles V. Harris 375, 376, 377 Bolman v. Overall 454 Bolton V. Bank 562 Bolton, Re 22 Bond, Re 595 V. Seawell 337 Eoning's Estate 610 Boofter v. Rogers 268, 378 Bool V. Mix 483 Booth V. Kitchen 239, 243 Bootle, Goods of 295 Borden v. Borden 397, 430 Born V. Hortsman 604 Bosley v. Bosley. . .427, 463, 485, 546 Boston Co. V. Coffin 490 Bosworth V. Stockbridge 562 Botsford V. Krake 367, 378 Bott V. Wood 348 Boughton V. Knight 67, 77, 83 147, 149, 156, 158, 165 Boulevard, Re 478 Bourke v. Wilson 326 Bowen v. Allen 5I8 V, Johnson 427 V. Payton 503 Bower v. Bower 193 V. Daniel 62 XXXTl TABLE OF CASES IX VOL. I. See also Table of Cases in Volume II. Sec. Bowerman v. Sessel 554 Bowers v. Porter 542 Bowes V. Bowes 447, 487 Bowes, Re 570 Bowman, Re 565 Boyce v. Boyce 599 Boyd v. Cook 98, 318, 395 ' V. Ely 74, 159, 187 V. Latham 490 Boyd V. McConnell 350, 354 V. Strahan 559 Boydell v. Golightly 563 Boyes v. Cook 526 Boyle V. Boyle 403 Boylan v. Meeker 193, 241, 405 Eoyles v. Wagiier 553 Boys V. Morgan 520 Boyse v. Rossborough 68, 227, 228 231, 232, 236, 239 Brackey v. Brackey 242 Braddock, Goods of 335, 336 Bradford v. Blossom. . . .185, 186, 242 V. Bradford 605 Bradhurst v. Field 417 V. Foley 562 Bradisli v. Gibbs 54 V. McClellan 416 Bradlee v. Andrews 537 Bradley v. Bradley 223 V. Cartwright 554 V. Gibbs 437 V. Westcott 558 Brady v. Cubit 426, 446 V. McCro.sson 297 ]}raliam v. IJuPclioll 445, 448 Brainard v. Brainard 89a, 186 Braint'rd v. Cowdrcy 579 Bran Dreyer v. Reisman 255, 584 Drinkhouse's Estate 161 Drummond's Goods 295 Drummond v. Leigh 534 v. Parish 367 Duane, Goods 219, 250 Dudderar v. Dudderar.185, 193, 227 238, 242 Duddy V. Gresham 603 Dudley v. Mallory 265 i:)ulT's Goods 280 DufTie v. Corridon 32S TABLE OF CASES IN VOL. I. slv See also Table of Cases in Volume II. Sec. Dudley v. Gates 406 Duffield V. Duffield....437, 523, 562 V. Elwes 447 V. Morris. 70, 120, 125, 126, 186 189, 191, 198, 204, 205, 229, 245 Dufour V. Pereira 456 Dugdale, Re 602 Du Hourmelin v. Sheldon 34 Duraond v. Kiff 140 V. Duncan 440 Duncan v. Harper 535 Dunham's Appeal.. 74, 159, 201, 203 Dunlap V. Dunlap 449, 486 V. Garlington 557 V. McCloud 599 Dunlap's Appeal 20 Dunn's Appeal 64 Dunn V. Bank of Mobile 265 V.Dunn 59,334, 443 V. Morse 595 Dunshee v. Dunshee 542 Duran v. Friend 534 Durham v. Clay 522 Durham v. Northen 281 V. Smith 70 Durour v. Motteux 524 Dwight V. Gibbs 534, 544 Dye V. Young 243 Dyer V. Dyer 119, 186 V. Erving 435 Dyer, Re 258 Dykeman v. Jenkins 600 E. Eales V. Cardigan 566 Earl V. Rowe 503 Early v. Early 387 Easterbrooks v. Tillinghast 545 Easterlin v. Easterlin 420 Easterly v. Keney 606 Eastis V. Montgomery .. 227, 243, 246 Easton v. Seymour 367 Eastwood V. Lockwood 477 Easum v. Applet ord 520 Eaton V. Brown 289 Sec. Eberts v. Eberts 570 Eby V. Eby 542 Eccleston v. Petty 341 Eckert v. Flowry 203, 229, 232 Eddey's Appeal 200, 209 Eddy V. Matthewson 533 Edens v. Miller 518 Edge V. Edge 126, 140 Edgerly v. Barker 539 V. Edgerly 239 Edmonson v. Bloomshire.. 512, 513 Edson V. Parsons 454 Edwall's Estate 268 Edward v. Edward 21 Edwards v. Slate 453 V.Smith 265, 270, 276 Edward's Appeal 426 Eeles, Goods of 398 Ehle's Will 518 Ehler's Will 488 Ehrman v. Haskins 516 Eidt V. Eidt 466, 468, 477 Ela V. Edwards. .314, 324, 327, 337 346, 347 Elkinton v. Brick 191 Ellis V. Darden 424 V. Ellis 199, 599 Elliott's Will '^n, 230 Elliott V. Elliot 141, 534 Elliott, Re 21, 600 Ellis V. Cary 453, 454 V. Flannigan 343 V. Houston 534 V. Plason 268 V. Smith 321, 327 Elmesley v. Young 543 Elms V. Elms 390, 396 Elmee v. Ferguson 180 Emerson v. Boville 425 Emerson, Goods of 303, 300 Emery v. Neighbor 49, 54 V. Wason 507 Emery, Re 532 Emmert v. Hays 57, 516 Enders v. Tasco 595 xlvi TABLE OF CASES IX VOL. I. See also Table of Cases in Volume II. Sec. Engelthaler v. Engelthaler 578 England v. Fawbush 238, 245 Englerth v. Kellar 554 Englert v. Englert IGO English, GcMxls of 277 Ennis v. Pentz 537 V. Smith 509 Epps V. Dean 427 Erickson v. Robertson 61 Errickson v. Fields 183 Erwin v. Smith 587 Eschbach v. Collins 397, 432 Este V. Este 64 Estep V. Morris 358 Estebrook v. Gardner 77 Etchison v. Etchison 342 Ethridge v. Bennett 245 Eustace, Goods of 60 Euing V. Barnes 553 Eustis V. Parker 350 Evans's Appeal. . .314, 393, 403, 420 Evans v. Crosbie 511 V. Evans 427a, 436, 437 V. Field 519 V. Folks 559 V. Godbold 542, 563 V. Hudson 478 V. Jones 535 V. Lauperdale 268 V. Smith 265, 456, 457 Evens v. Griscom 517 Evenson's Will 132 Everett's Will 242 Everhart v. Everhart 304 Evoritt v. Everitt 610 Kvort's Efitato 246, 249 Ewcn v. Franklin 337 Eyer v. Storer 491 Fahons v. Fabcna 547 Fairr-Jiild v. BaHcomb. .204, 205, 208 212, 244 v. r.iiHlincIl 535 V. KdHon 610 Sec. Fairfax v. Brown 55!) V. Hunter 35 Fane, Ex parte 48, C-l Parish v. Cook 52i Parish v. Wayman 559, 560 Farmer v. Kimball 540 Farmer's Trust Co., Pie 487 Farnam v. Farnam 537 Farnham v. Baker 60.5 I'arr v. Thompson 229 Faust V. Birner 522 Faux, Re 356 Fawcett v. Jones 216, 21 !) Fay's Estate 256 Fear v. Williams 393 Fee V. Taylor 174 Fellows V. Allen 401, 424 Feltman v. Butts 470 Fenn v. Death 533 Fenton's Will 81 Fenwick v. Chapman 467 Ferguson-Davie v. Ferguson-Da- vie 272 Ferguson v. Hodges 521 v. Stewart 542 v. Zepp 470 Fergusson's Will 401 Ferrer v. Pyne 540 Ferry v. Smith 478, 48Sa Ferry's Appeal 477 Fetherstone v. Fetherstone 553 Fettiplace v. Gorges 51 Fianncr v. Fianner 426 Fidelity Trust Co.'s Appeal 426 Field's Appeal 177 Field's Will 284, 312 Finch V. Combe 434 Finch V. Finch 40? Fincham v. Edwards. 98, 99, 317, 343 Findlay v. Riddle 553 Finelite v. Sinnott 517 Finger v. Auken 453 Finlay v. King 598, 600 Fiott v. Commonwealth 35 Firth V. Denny 519 TABLE OF CASES IN VOL.. I. xh See also Table of Cases in Volume IL f:EC. Fiscus V. Wilson 26Sa Fisher's Goods 269, 275 ■Fisher v. Hepburn 514 V. Kimball 49 V. Skillman 530, 540 V. Spence 351, 355 Fisher, Re 406 Fitzgerald's Estate 603 Fitzpatrick v. Fitzpatrick 220 Fitzsimmons v. Harmon 595 Flannery v. Hightower 574 Fleming v. Boiling 523 V. Fleming 407 Fleming v. Morrison 215, 277a Flinn v. Owen 327 Flint V. Trust Co 542 Flintham v. Bradford 415 Flood V. Pragoflf 324 Florey v. Florey..l46, 159, 163, 230 248 Floyd V. Floyd 386, 407 Fluck V. Rea 126 Folks V. Folks 246 Foot V. Stanton 118 Forbes v. Darling 588 Forbes v. Gordon 287 Ford V. Ford 331, 384 V. Teagle 402 Forgner's Estate 289 Forman's Will 384 Forney v. Fennell 195 Forth V. Chapman 564 Foss V. Crisp 35 Fosselman v. Elder 267 Foster's Appeal 402 Foster v. Dickerson 242 V. Foster •' 402 V. Holland 562 Fountain v. Brown 238 Fourdrin v. Gowdey 34 Fowler v. Fowler 505 V. Lewis 210 Fowler's Will 223 Fox V. Marston 426 V. Phelps 486 Sec. Fox's Will 24 Fralick v. Lyford 24 France's Estate 594 Francis v. Grover 393 V. Marsh 424 V. Wilkinson 239 Francis, Re 562 Francis's Will 400 Frank v. Chapman 335 Franklin v. Belt 218 Franks, Ex parte 53 Fransen's W^ill 446 Frary v. Gusha 120, 204 Eraser, Goods of ! 64, 296, 422 Eraser v. Hamilton 522 V. Jennison 190, 192, 193 Frazer, Re 512 Frear v. Williams. 176, 178, 247, 384 393 Frederick's Appeal 265, 268 Freed v. Clarke 268 Freeman v. Coit 475, 514 V. Freeman.. .68, 197, 239, 371 409, 412 V. Phillips 602 Frelinghuysen v. Insurance Co.. 487 French v. French.. 78, 288, 289 290 Frick V. Frick 569, 576 Frink v. Pond 353 Friend's Estate 605 Frith, Re 331 Fritts V. Denemberger 239 Fritz V. Turner 305, 306 Frogley v. Phillips 536 Frogley, Re 22 Frost V. Blackwell 599 V. Courtis 566 V.Wheeler 126, 213a Frush V. Green 239 Fugnett's Will 258 Fulbright v. Perry County 184 Fulkeson v. Chitty 505 Fulleck V. Allinson 163 Fuller V. Hooker 7 V. Hooper 436 xlviii TABLE OF CASES IX VOL. I. See also Table of Cases in Volume II. Puller V. Wilbur Fulton V. Harmon . . . . Fulton V. Umberhend. Funk V. Eggleston. . , . Sec. 603 533 174 526 G. Gable v. Ranch 324 V. Daub 11, 442 Gadd V. Stoner 550 Gaffield v. Plumber 473 Gafney v. Kenison 502 Gage V. Gage 265, 273 Gains v. Chew 223 Gaines's Succession 491 V. Lizardi 255 Gaither v. Gaither 23G Gaither v. Townsend 562a Gallagher v. McKeague 489a Gamboa's Trusts 563 Gangwere's Estate 110, 110 Gamber's Will 325 Gardner v. Courthope 439 V. Frieze 243 V. Gardiner 126, 127, 229 236, 394 V. Gardner 427 Gardiner v. Gardiner 185, 227 396, 434 V. McNeal 407 V. Heyer 534 V. Lamback 159 V. Merritt 25 Garland's Will IGa Gamett's Goods 281 Garrand's Estate 585 Garrett v. Dabney 40 V. Garrett 480 V. Ileflin 245, 331 Garrick v. f amflrn 543 Garii-oii v. Garrison. .. 178, 182, 183 203, 209 Gartli V. Garth 514 GaHt(!r V. (JiiHter 10 Ga.ston'H Estatr- 203. 260, 274 Ga8» V. fJa.H- ..72, 150, 337 Sec. Gawler v. Standerwick 223 tray V. Gay 394, 403 V. Gillilan 238 V. Sanders 320 Gaze V. Gaze 307, 321 Geale, Re 07 Gehrke v. State 200 Geiger v. Bardwell 70, 96, 141 Genery v. Fitzgerald 523 George v. Bussing 49 V. George 249 George III, Goods of 37 Gerbrich v. Freitag 459 Gerrish v. Nason. . 174, 175, 245, 330 Gesell V. Baugher 77, 186 Gibbes v. Holmes 495 Gibbins v. Shepard 595 Gibbons v. Gaunt 425 V. Fairlamb 542, 544 Gibson v. Dooley 22 V. Gibson 127, 193, 198, 201 203, 205, 207, 440, 498 V. McCall 24 V. Nelson 328 Gicks V. Stumpf 193 Giddings v. Turgeon 11, 355 Giffin V. Brooks 397 Gifford V. Dyer 218, 410 V. Tliorn 502 Gihon's Will 84, 239 Gilbert v. Knox 326, 329 Cile.5 V. Giles 390 V. Warren.... 384, 389, 396, 401 Gill V. Bagshaw 502 V. Gill 387 V. Peurson 602 V. Shelley 534 Gill.nnd v. Ilallott 533 fJillctt V. Wray 599 Gillis V. Gillis 348 Gillow V. Bourne 260 Gilman v. Ayer 84, 141, 23S Gilmor's Estate 449 Gilmer v. Stone 573, 583 Cilpin V. Williams 490 TABLE OF CASES IN VOL. I. xlix See also Table of Cases in Volume II. fcEC. Gilreath v. Gilreath 230, 235 Ginder v. Farnum 314 Girard v. City of Philadelphia, 29, 486 Gittings V. McDermott 542 Given v. Hilton 490, 507, 510, 514 Givin V. Green 348 Glancy v. Glancy 312 Glass V. Hulbert 586 Glass's Estate 26, 203, 242, 394 Glasscock v. Smither 420 Gleespin's Will 229, 238 Glifton V. Murray 98 Gloucester v. Wood 545 Glover v. Baker 21a, 24, 492a 583, 596 V. Condell 558 V. Hayden 239, 242 V. Spendlove 524 Glynn v. Oglander 272 Goble V. Grant.. 78, 110, 187, 188, 189 Goddard v. Amory 536 Godden v. Burke. . . 118, 120, 186, 256 V. Crowhurst 606 Godfrey v. Humphrey 550 V. Smith 371, 373, 377 Goebel v. Wolf 562 Gold V. Judson 486 Goldstricker's Will 458a Gombault v. Public Admr. ... 78, 95 96, 109, 110, 112, 113, 114, 115 119, 122, 189 Gomez v. Higgins 268 Gooch v. Gooch 512 Goodright v. Harwood 412 V. Glazier 413, 415 V. Opie 521 V. White 548 Goodsell's Appeal 382, 424 Goodtitle v. Herring 553 V. Southern 574 V. Welford 351 Goodwin v. Coddington 479, 489 Gord V. Needs 573, 577 Gordon v. Burris 583 V. Whitlock 407 »iEC. Gordon v. Hoffman 409 Gorton Pew Lo. v. Tolman 501 Gossling's Goods 422 Goss V. Lord Nugent 568 v. Tracy 223 Gough V. Findon 257, 269 Gough, Re 505 Gould V. Mansfield 454 V. Safford 367, 373, 375 376, 378 Gould's Will 415 Goulder, Re 606 Gourley v. Thompson 490 Graber v. Haaz 348 Grabill v. Barr 281 Grace v. Perry 580 Graham v. Burch. .386, 387, 395, 427a V. Deuterman 84, 188 V. Graham ...312, 342, 527, 568 V. Lee 600 Graham, Goods of 59, C4 Grand Lodge v. Wieting 205 Grant v. Grant 41 Grantley v. Garthwaite 391, 3!i3 Gray v. Garnett 490 V. Hattersley 488 Gray, Re 592 V. Rumrill 174 Graydon v. Graydon 603 Greated v. Greated 521 Greene v. Rathbun 532a Green's Appeal 536 Green v. Crane 325 V. Dunn 521, 546 V. Pertwee 519 V. Skipworth 259 Greenough v. Cass 466 V. Greenough 304, 306 Gregory v. Smith 537 Greenwood v. Cline 168 v. Greenwood 68, 479, 483 V. Rothwell 554 Greenwood, Re 509 Greenwood's Case 157, 101 Greenwood's Goods 433 Gregory v. Gates 53 TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Greig, Goods of Greig, Re 283, Gresley v. Mousley Greville v. Tylee 401, Grieves v. Rawley GriflBn v. Griffin V. Mcintosh 268, Griffith V. DiffenderfTer.225, 226, Griffiths V. Griffiths Griggs V. Griggs Grimes v. Smith Grimke v. Grimke Grimm v. Filtmann 357, Grimmer v. Friederick Gri scorn v. Evens 502, Griswold v. Griswold Groom v. Thomas Grossman's Estate Gross's Goods Grothe's Estate 466, 479, Grove v. Spiker Grifbbs V. Marshall V. ]^IcDonald 174, 176, 309, Gryle v. Gryle Guarantee Trust Co. v. Walker . . 141, Guardhoxise v. Blackburn 219, Gugel V. Vollmar Guild V. Allen GuJlfoyle's Will Gullan, Re Gulley V. Lillard Gulliver v. Ashby Gully V. Neville Gumtow V. Jankc Gunning's E.state 485, 599, Gundry v. Pinniger Gunetan, Goods of 321, Guthrie v. Price Gwillin v. Gwillin .322, Guy V. 0»bf>rnc Sec H. Sec 439 Habergham v. Vincent 265, 26(5 439 272, 281 28 Habeshon v. Vardon i2 435 Hacker v. Newborn 23G 535 Haddon v. Fladgate 51, 52, 53 255 Hadley v. Hadley 473 277a Hagan V. Yates 239 243 Hagger v. Payne 530 334 Haines v. Haines 387 437 V. Hayden 193, 243 522 Hairston v. Hairston 418, 431 49 Hale v. Tokelove 447 324 Haley V. Gatewood 486, 510 563 Halford v. Halford 255, 287 517 Hall v. Bragg 268 268 V. Dougherty 116 173 V. Hall ...72, 163. 190, 228, 229 374 312, 342, 350, 530, 535 491 v. Smith 503 562 V. Unger 163 246 V. Warren 109, 1 10 327 V. Waterhouse 51, 52 306 Hall, Re 23, 391, 534 434 Halley v. Webster. .110, 187, 189, 200 321 Hallowell v. Hallowell 312 68 Halsey v. Patterson 544 185 V. Hall 472 217 v. Hancock 532 221 V. Perry 68, 71, 83, 215 422 Halsted, Re 610 538 Halton v. Foster 543 303 Hamburger v. Rinkel 185 389 Hamley v. Gilbert 596 540 Hammersly v. Lockman 402 600 Hammond v. Dike 194 496 v. Hammond 510 403 Hamilton v. Hamilton. 81, 404, 565a 604 V. Hodsdon 510 563 V. McQuilan 28 .522 V. Peace 23 98 V. Ritchie 472 347 V. Wentworth 553 535 Hamilton's Estate 291,417, 421 Hamilton, Re 595 TABLE OF CASES IN VOL. I. li See also Table of Cases in Volume II. Sec. Hammond v. Hammond 453a Hammond, Goods of 322 Hampton v. Hardin 353 Handley v. Palmer 24 V. Stacey 126 V. Wrightson 537 Hankins v. Columbia Trust Co.. 57 Hansen, Ee 574, 594 Hanvy v. Moore 542, 568 Harbison v. Boyd 159 Hardenburgh v. Hardenburgh.77, 159 161, IGla Hardenbergh v. Ray 29, 486 Harder v. Harder 454 Harder v. Hays 110, 119, 189 Harding v. Glyn 537 Hardy v. Merrill 200, 201, 203 Hare v. Cartridge 593 Hargroves v. Redd 403 Harlan v. Manington 553 Harland v. Trigg 595 Harlow v. Bailey 603 Harmon v. Brown 603 Harp V. Parr. 238, 239, 243, 325, 329 348, 350, 357 Harper v. Blean 524 V. Harper 78, 174, 198 V. Phelps 537 Harper, Re 95 Harrell v. Harre 140, 236, 238 Harris v. Bedford 266 V. Berrall 384 V. Davis ' 407 V. Lloyd 532 V. Panama R 210 V. Pue 258 Harris's Estate 539 Harris, Re 389 Harrison, Re 534 Harrison's Appeal 248 Harrison's Will 227 Harrison v. Elvin 339 V. Harrison 331, 595 V. Nixon 400 V. Rowan. 67, 187, 203, 205, 209 Sec. Hart V. Hart 425 V. Rust 268 V. White 510 V. Whitlock 407 Harteau, Re 507 Hartford Trust Co. v. Purdue. . . 548 Hartford Trust Co. V. Wolcott.. 544 Hartley v. Lord 68 Hartley, Re 600 Hartman v. Stickler 139, 235 Hartwell v. McMaster 304 Hartwell v. Tefft 534 Hartz V. Sobel 394, 397 V. Chateau 448 Harvard College v. Balch 526 V. Cooke 512 V. Sullens 140, 240, 246 Harvey v. Ballard 488a Harvey, Re 21, 64 Harwell v. Lively 415 Harwood v. Baker 68, 83 V. Goodnght 3, 413, 437 Hascall v. Cox 542 Hastie's Trusts 22 Hastings v. Day 424 v. Rider. 198, 199, 202, 205, 207 Hastings, Re 575 Hatch V. Bennett 507 Hatfield's Will 355 Hathorn v. King 73 Hatton V. May 596 Haug V. Schumacher 522 Haus V. Palmer^ 370, 371, 375 Harvard v. Davis 444 Haven v. Foster . . . 447, 449, 486, 487 V. Hilliard 350, 353 Havens v. Van Den Burgh.. 425, 426 Haverstick's Appeal 54S Hawe V. Earles 509, 511 Hawes v. Humphrey 353 V. Nicholas 415 Hawke v. Chicago R 482 V. Euyart 450, GO4 Hawkins v. Hamerton 540 V. Garland 575 lii TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Sec Hawkins v. Hawkins 355 Hawley v. Northampton 560 Hay, Re 437 450 Hayden v. Barrett 534 V. Stoughton 496 Haydock v. Haydock 226, 228, 229 Hayes v. Davis 598 Hayes v. Harrison 598 V. Hayes 410 V. King 538 V. Hayes 16a, 233 V. Seavey 19 Haygood's Wlill 376 Hayne v. Irvine 542 Hayne v. Jodrell 536 Haynes y. Haynes 30G V. McDonald 522 V. Sherman 21 Hayne's Estate 450 Hays, Gk>ods of 360 V. Jackson 2t) Hazard v. Gushee 486, 540 Hazelrig v. Hazelrig 513 Head v. Nixon 411 Heald v. Thing 200, 207, 211 Healey v. Bartlett 342 Healy v. Healy 538, 548 Heard v. Horton 548 V. Reed 548 Hearn v. Ross 218 Hoaston v. Kreig 26S Heath v. Cole 329 V. Knapp 495 V. Koch 239 V. Lewis 603 V. Witliington 64 Health's Goods 282 Hfiitley V. Long 28 IIc-btlen'H Will 373, 374, 378 Heck V. riippeiiger 537 Heeb v. lleeb 480, 482 Hfgarty's Appoal 253, 256 Heiflelbaiigh v. Wagner 478 IJeilrnan v. Ileilman 474a Heineman'H A|)p('al 10 Heiao v. Ileiso 405, 418, 420, l.'!l Sec. Heisen v. Ellis 469 Hellerman's Appeal 477 Hellier v. Hellier 407 Helmer v. Shoemaker 484 Helyar v. Helyar 408 Heming v. Willets 499 Hemingway's Estate 147 Hendershot v. Shields 478 Henderson v. Cross 602 V. Henderson. .537, 542, 554, 56Ga Henfrey v. Henfrey 407, 409 Hennington v. Budd 427 Henry, Ex parte 323 Henry v. Henry 514 Henshaw v. Foster 258 Hephinstall v. Gott 524 Herbert v. Berrier 174, 308 v. Herbert 367 Herd v. Catron 603 Herring v. Williams 469, 565a Hershy v. Clark 459 Herster v. Herster 243 Hertz v. Abraliams 556 Hervey-Bathurst v. Stanley.... 599 Heseman v. Vogt 193 Hess V. Killebrew 185 Hess's Appeal 98, 317 Hess's Will 239 Hesterberg v. Clark 431 Hetley, Re 578 Hewitt's Will 312 Hcydon's Will 498 Hey wood v. Hey wood 583 Hibbert v. Hibbert 537 Hibbits v. Jack 603 Hick v. Dring 509 Hick's Estate 477 Hickman v. Brown 57 Hicks, Goods of 296, 422 Higgins v. Carlton.. 68, 77, 174, 184 303, 329 Higgins V. Eaton 438, 490, 589 Iliggin'B Will 347, 348 High's Case 265 High v. Wilson 126, 256 [lildroth V. Hildreth 250 Hill V. Bowers 540 TABLE OF CASES IN VOL. I. See also Table of Cases In Volume II. Sec. Hill V. Bowman 583 V. Downes 477, 602 Hill V. Gianelli 453a V. Harding 459 V. Hill 529 V. Rockingham Bank 530 V. Thomas 561 V. Walker 437 Hilliary v. Hilliary 555 Hill's Succession 386 Hillsdale College v. Wood 595 Hinckley v. Simmons 41 V. Thatcher 583 Hindmarsh v. Charlton. 328, 333, 345 Hindmarsh, Goods of 435 Hindson v. Kersey 182, 353 V. Weatherill 245 Hines, Goods of 385 Hinkle v. Landis 268 Hinkle's Appeal 559 Hinton v. Milburn 548 Hiram v. Griffin 57 Hiscocks V. Hiscocks. . .574, 575, 576 578, 582 Hise V. Fincher 386, 387, 395 Hitchins v. Bassett 412 V. Wood 280, 401 Hitchcock V. Hitchcock 476 Hitchcock V. Shaw 354, 356 V. U. S. Bank 487 Hite V. Sims 163 Hix V. Whittemore....llO, 122, 187 Hobart v. Hobart 346, 447 Hobbs V. Knights 389, 396 Hobson V. Blackburn 456, 494 V. Moorman 243 Hochstedler v. Hochstedler 478 Hocker v. Hocker 265, 266 Hock's Will 149 Hodgkinson's Goods 414 Hodgson V. Bective 523 V. Halford 603 V. Jex 509, 514 Hodsden v. Lloyd 46, 50, 424 Hodson T. Ball 503 HoflFman v. Hoffman 240 V. N. E. Trust Co 468 Hoffman's Will 562a Hogan V. Grosvenor 324 Hogan V. Jackson 470, 483 Hoge V. Fisher 116 Hogeboom v. Hall 599 Hoit V. Hoit 605 Hoitt V. Hoitt 403, 422, 424, 427 Holbrook's Estate 603 Holden v. Blaney 437 Holland v. Alcock 21 Hollinger v. Syms 159, 160 Hollingsworth's Will 245 Hollinrake v. Lister 600 Holloway v. Clarkson 544 V. Institute 583 Holman v. Perry 54, . 250 Holmes v. Campbell College. 80a, 215 248 V. Cradock 478, 562 V. Holmes 57 V. Mackenzie 490 V. Miner 489 Holt V. Sindrey 534- Holt's W^ill 355 Holton V. Cochran 159 Holyland, E.x parte. .40, 109, 110, 187 Holzman v. Wager 43 Home V. Noble 437, 477 Home V. Pillans 565 Homer v. Shelton 478 Honaker v. Starks 472 Hone V. Van Schaick 470, 533 Hood V. Archer 60 Hooker v. Axford 586 Hook's Estate 235 Hoope's Estate 478 Hooper's Estate 187 Hopewell v. Ackland 483 Hopkins v. Hopkins 523 V. Keazer 507 Hopper V. Hensen 574 Hopper's Estate 281, 570 Hopwood V. Hopwood 440 Horah v. Knox 242 Horn V. Pulman.84, 136, 137, 139, 238 Hornby, Ex parte 477 Horr.er Re 544 liv TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Sec. Horsf ord, Goods of 389 Horsford, Re 316 Horton v. Earle 566 Horton v. Johnson 339 Hoshauer v. Hoshauer 243 Hospital Trust Co. v. Keith 427 Hotham v. Sutton 505, 514 Hougham v. Sandys 525 Houghton V. Brantingham. .472, 490 549 543 542 24 195 V. Hughes 469, 542, V. Kendall 533, House of Mercy v. Davidson.. . . How V. Pullman Howard v. American Peace Society 479, 575 V. Carusi 558, 559, 560, 595 V. Howard 70 Howard, Re 409 V. Hunter 394 Howe V. Howe 229 V. Watson 454 Howell's Estate 523 Howell V. Ackerman 542 Howes V. Colburn 348 V. Barden 243 Hovey v. Chase 91 Hoxie V. Hoxie 468 Hoxton V. Griffith 540 Hoyt V. Hoyt 604 Hubbard v. Alexander 215 V. Hubbard 77, 361, 365, 366, 367 397, 399, 421 V. Lee 299 V. Lloyd 531 Hnbbuck's Estate 220, 584 Hubor, Re 299 Ihickvalc, Goods of 321, 322, 347 Hufkvalc, Re 311, .321 Hudnall v. Ilam 424 Hudson V. Hudson 453 V. HuRhnn 140 HiifTirian v. Yoimf;.." 516 JIu^'Ik-h v. Fit/gfiald 009 Hh^Ik-h v. Ihij,'liPH .').33. 600 V. .MiM-fMlitli 245, 247 V. Miirthtt 229, 236 Hughes V. Rader V. Turner 449, V. Wells Hughes, Goods of Huglies, Re Hughey v. Warner Hugo, Goods of Hulett's Estate Hull's Will 174, 327, 344, Hulse's Will Hultz V. Holzbach Humble v. Shore Humes v. McFarlane Hunt, Goods of Hunt V. Hunt V. Hunt 265, 311, V. Johnson V. Lowell Gas Light Co V. White Hunt, Re Hunt's Will Huntington v. Huntington Hurd V. Reed Hurdle v. Outlaw Hurleston v. Corbett Hursey v. Surles Huss's Appeal Hussey v. Berkley 533, Huston V. Bell V. Cone V. Dodge Huston's Estate Hutchins v. Cockran Hutchinson v. Hutchinson. . .146, 162, Hutchinson, Ro Huxford V. Mulligan Hyde v. Mason V. Parrat V. Price Hyde v. Rainey 470, 507, llylton V. Hylton 382, Sec. 238 570 64 311 271 57 460 425 346 326 562a 519 28 215 584 510 478 212 220 216 424 378 233 510 98 453 247 534 141 57 492a 68 320 149 480 595 564 398 558 579 561 387 Ide V. Tdc 559 Iddings V. Iddings 218 TABLE OF CASES IN VOL. I. Iv See also Table of Cases in Volume II. Seo. Incorporated Society v. Rich- ards 24 Ingersoll's Will 610 Ingilby v. Amcotts 28 Ingles V. McCook 535 Inglehart v. Inglehart 24, 491 Inglesant v. Inglesant 321, 329 Inglis V, Sailors' Snug Harbor.. 592a Ingraham v. Ingraham ....562, 610 Ingram v. Girard 28 V. Porter 265 V. Smith 542 V. Southern 534 Innes v. Sayer 589 Iredell v. Iredell 531 Ireland v. Parmenter 511 Irish V. Newell 72, 116 Ironside v. Ironside 472 Irvine v. Irvine 604 Irvine's Estate 328 Irving V. Bruen 197 Irving's Appeal 543 Irwin V. Laffin 168 Isaac V. Hughes 534 Israeli v. Rodon 425 Ives V. Harris 487 Izard V. Middleton 454 J. Jacks V. Henderson 425 Jackson v. Adams 35 V. Alsop 580 V. Bennett 371 V. Bull 559 V. Delaney 495, 510, 550 V. Denniston 351 V. Hardin 70 V. Hewlett 403 V. Holoway ..384, 393, 431, 432 434 V. Hooven 468 T. Hurlock 444 V. Jackson 244, 306, 326, 328, 426 V. Kipp 468, 470, 545 V. Kniffen 193, 221, 242, 243 382, 403 T. Merrill 510 Jackson v. Moore 342 V. Payne 220 v. Phillips 21 V. Potter 445 V. Sill 578 V. Vanderspreigle 506 V. Van Dusen 187, 189, 303 V. Westervelt 605 Jackson's Will 239 Jacobs V. Ditz 579, 599 V. Jacobs 542 V. Prescott 472 Jacob's Appeal 522 Jacob's Succession 188 Jacob's Will 332 James v. Dean 486 V. Langdon 74, 159 V. Marvin 415 V. Richardson 548 V. Shrimpton 446 Jamisen's Will 116 Jansen v. Jansen 447 Jeanes's Estate 354 Jenckes v. Smithfield 190 Jencks v. Court of Probate .... 232 Jenkins v. Bonsai 28, 563 V. Freyer 529, 532 V. Gaisford 303 V. Maxwell 487 Jenkins, Re 450 Jenkins's Will 255, 303 Jenner v. Finch 340, 423 Jennings v. Conboy .549 Jersey v. Jersey 298a Jesse v. Parker 330 Jesson V. Wright 464, 553 Jobson, Re 546 Jodrel, Re 481, 538 Johns Hopkins Univ. v. Pinckney 406, 407, 437 Johnson v. Ball 281 V. Brailsford .393, 394, 398, 420 v. Brasington 490, 542 Johnson v. Farrell 68, 228 V. Glassock 370, 371 TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Sec. Johnson v. Johnson 159, 268, 291 327, 560 V. Lyford 243 V. Moore 159 V. Sharp 57 V. Stanton 524 V. Warren 604 V. Williams 11 V. Yancey 265 Johnson's Appeal 534 Johnson's Estate 230 Johnson's Will ....239, 384, 402, 403 Johnston v. Hughes 21a V. Johnston 425 Joiner v. Joiner 437 Jones V. Bacon 558 V. Badley 586 V. Brown 63 V. Grogan 215 V. Habersham 218, 284, 337, 354 V. Hartley 449 Jones V. Collins 174, 184 V. Huntley 28 V.Jones 233, 537a, 559, 603 V. Larabee 350, 354 V. Moseley 382 V. Newman 573 V. Nicholay 269, 273 V. Quattlebaum 575 V. Roberts 178 V. Shewmaker 487 V. Skinner 496 V. Tebbetts 352, 353, 356 V. Tuck 342 V. Williams 21 Jones's Estate 426a Jordan v. Adams 553 V. Jordan 281, 283 Jordan, Goods of 297 Jordan's Administrator 268 Josh V. Josli 501 Jonrneay's Will 238, 450 Jiibbor V. Jubbcr 592, 596 Julke V. Adiim 126, 191 Jull V. Jacobs 520 Kahn v. Tierney 469, 477, Kahn's Will Karsten v. Karsten 468, 470, 581 Kaufman v. Caughman 20, 243, Kaufman's Estate Kay V. Holloway Kayhart v. Whitehead Keagle v. Bessell Keagle v. Pessell Kean v. Roe Keay v. Boulton I Keays v. McDonnell. . .173, 176, I Keegan's Estate j Keeler v. Trust Co. 268a, 277a, I : Keeler's Will Keely v. Moore 110, 207, I Keen v. Keen j Kehol, Goods of ■ Keigwin v. Keigwin j Keith V. Lothrop Keith V. Miller 62, V. Scales Kell V. Charmer [Kelleher v. Kernan 267, 276, • Kelley v. Shimer V. Snow 19, Kellan v. Kellan Kelick, Re Kellum, Re Kelly V. Johnson V. Miller Kelly V. Nichols V. Powlett Kelly V. Richardson V. Settcgast Kelly's Estate 440a, Kemble v. Church Kempf's Appeal Kempsey v. IMcGinniss 78, 174, 204, 20.^, 206, 207, 208, 209, Kendall v. Clapp V. F\ondall 508, V. Taylor 489 120 582 198 328 77 126 605 453a 427a 540 547 179 239 281 573 168 344 403 281 321 207 460 592 582 288 290 268 487 239 341 347 404 168 21 512 26S 247 448 105 512 184 212 549 558 492a TABLE OF CASES IN VOL. T. Ivli See also Table of Cases in Volume II. Sec. Kendrick's Estate 147, 163 Kenebel v. Scrafton 426, 534 Kennard v. Kennard 562 Kennedy v. Hay 489 V. Upshaw 215, 241, 317a Kennedy v. Kennedy 21, 592 Kennell v. Abbott 224, 410 Kennett v, Kidd 24 Kent V. Barker 20, 426, 534 V. Mahaflfey 382 Kern v. Kern 412, 415 Kerr v. Lunsford ....67, 68, 72, 84 194, 207, 229 V. Moon 491 Kessinger v. Kessinger 236 Ketchum v. Stearns 232 Keuhle v. Zimmer 477 Kilborn's Estate 239, 245, 246 Kilby V. Godwin 63 Kilvert's Trusts 583 Kimball v. Ellison 29 V.Bible Society 491, 526 V. Story 537 Kimpton, Goods of 311 Kindberg's Will 245 King V. Ackerman 479, 482, 483, 569 V. Badeley 587 V. Cleveland 544 V. George 514 V. Gilson 81 V. Kinsey 317 V. Mashiter '. 582 V. Melling 466 V. Mitchell 545, 608 V. Parker 24 T. Savage 535, 539, 554 King, Goods of 392 King's Estate 529 King's Mortgage, Re 504 Kingsbury v. Whitaker 78 Kindleside v. Harrison Ill, 132 136, 137, 139, 142, 229 Kinne v. Kinne 67 Kip V. Cortland 521 Kirkpatrick, Re 397, 430 Kirkpatrick v. Jenkins 243, 382 Sec. Kirsher v. Kirsher 84 Kise V. Heath 239 River v. Oldfield 417, 437 Klingman v. Gilbert 488a Klinger's Will 350 Knapen's Will 394 Knight V. Boughton 595 V. Broughton 263 V. Ellis 557 V. Knight 595, 560 V. Mahoney 603 V. Selby 484 Knight, Re 494 Knight's Estate 149 Knotts V. Stearns 20, 426 Knox V. Hotham 596 V. Jones 491 Knox V. Richards 374 Knox's Appeal 174 Knox's Estate 56, 258, 263, 303 Knox's Will 193, 194 Koebl V. Haumesser 453 Koegel V. Egner 120, 127 Knye v. Moore 534 Kohn's Estate 261, 301, 443 Kopmeier, Re 11 Kountz's Estate 562 Kramer v. Weinert 70 Krimpe v. Coons 358 Kurtz v. Saylor 11, 46, 49 La Bua v. Vanderbilt. .168, 192, 193 243 Lackland v. Downing 539 Ladd V. Harvey 5, 513 V. Ladd 579 Laird v. Vila 453 Lallerstedt v. Jennings 5 Lally's Will 426, 489 Lamar v. Lamar 602 Lamb v. Girtman 239, 342, 386 V. Lamb 77 v. Lippincott 246 Lambe v. Eames 595, 596 Lambell v. Lambell 401, 407 Iviii TABLE OF CASES IX VOL. I. See also Table of Cases in Volume II. Lambert v. Paine Lancaster v. Alden 163, 238, V. Lancaster Lancaster, Goods of Lane v. Hill 415, V. Lane 326, V. Vicks Lane's Appeal Lane's Estate Langdon v. Aster.. 11, 281, 449, Langford's Estate 193, Lansing v. Haynes Larabee v. Larabee Larkins v. Larkins 391, Latham v. Udell Latbrop v. Merrill 510, Lauer v. Hoffman Laughlin v. Norcioss Laughton v. Atkins .... 406, 407, 419, Lauman v. Foster Lautenshlager, Re Law V. Douglass V. Law Lawrence v. Barrett V. Cooke V. Phillipps V. Smith 473, V. Steele Lawson v. Mullinix Lawyer v. Smith 401, Lay's Goods Laycroft v. Simmons Layman v. Conrey 228, 229, Leach v. Burr Leake v. Robinson 27, 519, Leard v. Askew Leathers v. Gray V. Greenacre..265, 266, 366, Leatherwood v. Sullivan Lcavfins v. Butler Lechmere v. Brotheridge Lockey v. Cunningham. .81, 12.'), Lee V. Baird V. Br'iiiiftt -19, Sec. 484 239 159 297 437 328 468 327 494 459 236 426 407 397 225 606 554': 28' 418 420 513 268 549 397 63 595 533 479 89a 4.53 403 367 387 239 184 562 432 556 367 378 .347 468 52 101 540 58 Sec. Lee V. Case 127 V. Colston 248, 605 V. Dill 238 V. Pain 529, 577, 583 V. Pindle 487 V. Scudder 160 Lee's Appeal 453 Lee's Goods 347 Leech v. Leech 159, 168 Legare v. Ashe 412 Leeg V. Myer 70, 113, 118 Leege v. Asgill 505 Lehre's Will 602 Leigh V. Leigh 529 Leigh's Goods 385 V. Savidge 490 Leighton v. Bailey 511, 522 Leland v. Adams 484, 550 Lemage v. Goodban 407, 437 Lemann v. Bonsall 218 Leny v. Prescott 562 Leonard, Ex parte 308, 329, 342 Leonard v. Leonard 268, 397 Lepage v. McNamara 473 LeRoy, Ex parte 339 Letchworth's Appeal 563 Leverett v. Carlisle 227 Leverington's Goods 339 Levy's Estate 505 Lewin v. Killey 564 Lewis V. Douglass 57S V. .Jones 81, 125, 191 V. Lewis . 98, 284, 323, 325, 326 339, 342, 347 V. Payne 491 V. Scofield 4.57 Lewis, Re 138, 188, 380 Lewis's Estate 77 Lewis's Will 68, 73, 118, 186 Ley V. Ley 478 Lide V. Lide 2,36 Lillie V. Lillip 402 Lincoln v. Aldrich 542 V. Pclliam 540 V. Perry 469 Lindsay, Ex parte 286, 288 TABLE OF CASES IN VOL. I. ]ix See also Table of Cases in Voluino II. Sec. Lindsay's Estate 68 Lindsey v. Colyear 551 V. Lindsey 599 Linnard's Appeal 431, 450 Linebarger v. Linebarger. . . .242, 243 Linstead v. Greene 477 Lipe V. Houck 453a Lisle V. Couchman 239 List V. Rodney 553 Lister v. Bradley 562 V. Smith 216, 278 Liston V. Jenkins 477 Little V. Little 187 Little, Re 19 Livingston v. Commonwealth.... 205 Livingston's Appeal 170, 239 Lloyd V. Branton 599, 603 V. Jackson 549 Locke V. Dunlap 529 V. Locke 537 Lockwood's Appeal 540 Lockwood's Will 161 Loder v. Whelpley 245 Logan V. McGinnis 198 Loenecker's Will 240 Lomax v. Lomax 574 V. Shinn 488 Lombard v. Boyden 519 Lombe v. Stoughton 500 Long V. Aldred 59, 424, 446 V. Blackall 544 Long V. Zook 310 Long's Appeal 257 Long's Estate 562a Longford v. Eyre 340 Loomer v. Loom^r 466 Lord V. Bourne 542 v. Lord 331, 339, 350, 353 Lord V. Pearson 562a, 565a Lord St. Helens v. Lady Exeter. 216 Lord Donegal's Case 225 Lorillard, Re 486 Loring v. Arnold 28 V. Loring 595, 596 v. Park 354 Lorings v. Marsh 426, 585 Src- Lorton v. Woodward 507 Louge v. Wilkie 491 Loughney v. Loughney 201 Love V. Buchanan 542 v. Johnston 44.5 Lovegrove, Goods of 456 Lovell V. Quitman 397 Loveren v. Lamprey 29 Lovering v. Balch 409 Low V. Harmony 533 V. Huntingtower 579 V. -Joliflfe 179, .351 V. Manners 579 Lowe V. Williamson 96, 137, 230 235 Lowman, Re 565 Lowry v. Muldrow 489 Loy V. McClister 604 Lucas V. Brooks 281, 570 V. Duffield 474 V. Parsons 81, 110, 159, 161, 189 242, 268, 298 Ludlam, Re 64 Ludlow V. Ludlow 325, 326 V. Stevenson 519 Ludlum V. Otis 406 Lumb V. Jenkins 36 Lumbell v. Lumbell 391 Lumber Co. v. Branch 328 V. Rogers 494 Lummus v. Mitchell 483 Lungren v. Swartzwelder 268 Luning v. State 210 Luper V. Werts 325 Lupton, Re 600 Lurie v. Radnitzer 429, 480 Luzar v. Harman 540 Lyles V. Lyles 272 Lyman v. Morse 487 Lyne v. Guardian 223 Lyon V. Acker 539 V. Baker 533 V. Dada 245, 246, 418 V. Home 168 V. Lyon 517 V. Safe Deposit C05 529 5H5 Sec. Pawtucket v. Ballou 328 Payne v. Payne 324, 344 V. Webb 540 Payne, Re 437 Peake v. Jenkins 306, 320 Pearce v. Rickard 535 Pearce, Re 534 Pearn, Goods of 311 Pease v. Allis 355 Peaslee v. Fletcher 514 Pearson v. Carlton 20 V. Dolman 600 Peck V. Gary 78, 126, 127, 128 191, 329 Peck's Appeal 412, 415 Pemberton v. Pemberton 399 V. Parke 533 Pemberton, Re 243 Pendleton's Will 81 Penniman v. French 506, 508 Penniman's Will. . .431, 432, 434, 442 Pennock's Estate 595 Pennock v. Pennock 558 Pennover v. Sheldon 469, 470 Peusyl's Will 229, 230, 235 Peoria Humane Society v. Mc- Martrie 458a Pepoon's Will 347 Pepped V. Martin 174, 239 Pepper's Estate 515 Perera v. Perera 317 Perjue v. Perjue 382 V. George 11 Perkins v. Jones 255a, 318 V. Perkins 141, 174, 175 188, 238, 440 Perkins's Appeal 477 Perret v. Perret 226, 236 Perrin v. Blake 466, 553 Perrott v. Perrott 398 Perry v. Brc\vn 540, 599 V. Hunter 466 V. Maxwell 512 Pcretico v. Hayes 268 I'ct^'fisli V. Becker 161 Peters v. Siders 20 TABLE OF CASES IN VOL. I. Ixvii See also Table of Cases in Volume II. Peterson's Will Pettes V. Bingham I'etty V. Wilson P«v'eaett's Goods Phelan's Estate Phelps V. Hartwell V. Phelps V. Robbins 280, Phillips Academy v. King V. Chater V. Phillips 237a, 239, v. Ferguson Piatt V McCullough Piazzi Smith, Re Pickens v. Davis 403, V. Matthews Pickering v. Langdon . . 476, 478, Phipps V. Ackers V. Anglesea Pickett's Will 98, Pickworth, Re Picquet v. Swan Pidcock V. Potter. . .74, 159, 201, Pierce v. Knight V. Pierce 126, 127, 236, V. Root V. Stidworthy Pierce's Estate Piercy, Re Piggott V. Waller 449, Pikington v. Spratt Pileher v. Hole Pillsbury's Will Pingrey v. Rulon Pinney v. Hiint Piper V. Andricks V. Mbulton Pitney v. Brown Pitts V. Campbell 478, Plane v. Scriven plater v. Groome 256, Piatt V. Mickle Plenty v. West Plimpton V. Plimpton Plumstead's Appeal Skc. Sec. ?M Pocock v. Reddinger 574 ?A7 Podmore v. VVhatton 402 505 Pohlman v. Pohlman 505 ^?.?< Polk V. Ralston 34 313 Pollock V. Glassell 309 195 V. Greassell .... 281 564 Pond V. Allen 562 281 V. Bergh 28 24 Pool V. Blakie .... 57 163 Poole V. Poole .... 553 595 V. Richardson .... 199, 201, 203 603 Pooler V. Cristman 134, 231, 238 309 Pope V. Elliot 606 456 V. Hinckley «... 573 415 V. Pickett 342 531 V. Pope 328, 440, 447, 478 487 V. Whitcombe 537 562 Popham V. Bampfield 599 411 V. Lady Ayle-'^bury .... 509 174 Porcher v. Daniel ..54, 57 562 Porter v. Ford 59 470 Porter, Goods of 287 203 Porter, Re.. .598, 602 481 V. Turner 299 242 Porter's Trusts. Re .... 542 469 Portland v. Prodgers 53 520 Portman v. Hunter .... 374 422 Post V. Herbert 540 343 Post V. Mason .239. 245 487 V. Jackson 540 563 Postlethwait's Appeal .466, 579 409 Poter V. Baldwin .242, 243 407 V. Couch 602 492a V. Poter 449 223 Potter's Will 243 242 Potts V. Felton 335 356 V. House 78, 95, 205, 227 540 Powell V. Beebe .476, 498 599 v. Board of Missions.. 554 328 V. Rawle 600 265 V. State .... 203 543 Powers' Estate 21 407 Prater v. Prater 4.-. 4 483 V. Wliittle 427 265 Prater, Re .... 512 Ixviii TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. yEc. Pratlier v. McClelland. 68 Pratt V. Jackson 512 V Rice 478 Prentis v. Bates 67, 149, 162, 170 Prentiss v. Prentiss . . . 426 Prescott V. Prescott . . . 521 Prescott, Re 397, 432, 434 Price V. Lockley . . . . 540 V. Maxwell . . . . .407, 418 V. Powell 389 V. Strange 544 Prichard v. Pricliard. . 505 Pride v. Bubb .... ..51, 53 Prigden v. Prigden. . . . 331 Prince v. Hazleton. . . . 361, 365, 370 371, 374 V. Prince . . . . ..62, 458 Prince, Re 213a Pringle v. Burroughs . . . 192 V. McPherson .... 418 Prinsep v. Dyce Sombre. . . . 139 Proctor V. Proctor 604 Provis V. Reed 193 Prowitt V. Rodman. . . . 533 Pruden v. Pruden 489 Pruen v. Osborne 535 Pryor v. Coffin 395 V. Coggin 386 V. Prvor 333 Public Administrator v. Watts.. 378 Puddephate, Goods of. . .... . . . . 311 Pugh V. Pugh .... . . . . 533 Purcell V. Grattan .... 5-19 V. Wilson 549 Purcell's Estate ..70 , 96, 141 Purdv V. Evans 235 Pnryf'ar v. Edmonson.. 539 Putnam v. Safe Deposit Co.. 595 Quwn's Collf^e v. Sutton 583 Qnincy v. Rogers 437, 487 Quinn v. Butler 398 V. Quinn 432 V. Sliields 354 R. Sec. Rackham v. Siddall 495 Radcliffe v. Buckley 533 Ragland v. Huntingdon 388 Eagsdale v. B loker 265 Raikes v. Ward 5'J5 Raine, Re 459 Raison v. Raison 229, 236 Ralph V. Carrick 535 Rambler v. Tryon 201 Ramires v. Kent 35 Ramsdill v. Wentworth 426 Ramsey v. Ramsey 312, 313 Rand v. Butler :'.! Rand's Estate 255 Randall v. Beatty 415 V. Payne 599 V. Russell 558 V. Tuchin 550 Randall, Re 159, 168 Randfield v. Randfield 437 Rankin v. Rankin 33, 23t? Rash V. Puruel 328 Rasquin v. Hamersley 535 Rathbone v. Dyckman 561 Rath j ens v. Merrill 174 Raudenbach's Appeal 4^0 Ravenscraft v. Hunter 397, 430 Rawlings v. Jennings 514 V. McRoberts 273 Rawlins' Trusts 481, 561 Ray V. Hill 305, 317, 343 V. Ray 193, 240 V. Walton 421 Raymond v. Butts 610 V. Wagner 342 Rayner v. IMowbray 537, 563 Read v. Manning 406 V. Snell 549 Reagan v. Stanley 255. 256 Reaver's x\ppeal 339 Rector v. Alcorn 595 Redding v. Allen 518 Bedding, Goods of 304, 310 Redl, cad's Estate 289 Redmond v. Burroughs 543 TABLE OF CASES IX VOL. I. Ixix See also Table of Cases In Volume II. Sec. Eeed v. Hazleton 270, 272 V. Roberts 342 V. Watson . . . .323, 325, 328, 330 Eeed v. Welborn 562a V. Woodward 258 Reed's Estate 140 Reed's Will 137 Rees, Re 563 Reese v. Court of Probate. . .405, 420 V.Hawthorne 374, 378 V. Reese 284, 314, 337 V. Stille 239, 251 V. Waters 35 Reeves v. Crosby 326, 348, 354 Rehard's Estate 354 Reichard's Appeal 409 Reichenbach v. Ruddach.70, 176, 231 Heilly V. Infirmary 473, 583 Reimer v. Reimer 553a Remer v. Benedict. 277a Renn v. Lamon 174 Renvaize v. Cooper 504 Reuff v. Coleman 604 Rewalt V. Ulrich 570 Rex V. Bettesworth 48 Reynish v. Martin 603 Reynolds v. Adams 236, 242, 243 Reynolds v. Kortright 250 V. Reynolds 95, 342, 578 V. Whelan 573 R,eynolds, Re 514, 515, 518a, 533 Rhea v. Madison 239 Rhoad's Estate 404 Rhode Island Trust Co. v. Com- mercial Bank 559 Rhodes v. Rhodes 219, 248 v. Vinson 384 v. Weldy 426 Rice V. Hartman 453 v. Rice 74, 81, 159, 160, 187 Rich V. Cockell 51 V. Gilkey 384, 418 Richard v. Richard 365, 375 Richards v. Miller 539 V. Queen's Proctor 407 Sec. Richards, Goods of 64 Richardson v. Ely 246 V. Hall 514 V. Harrison 553 V. Martin 542 V. Noyes 471 V.Richardson 243, 354 V. Wheatland 562 Richardson's Estate 255 Richmond's Appeal 70, 210, 239 Rickards v. Mumford 399 Rickman v. Meier 521 Rick's Estate 229, 232 Riddle's Estate 20 Rider v. Miller 187, 200 Ridgely v. Brand 243 Ridley v. Coleman 374 Rife v. Geyer . 606 Rife's Appeal 382, 407 Riggin V. Westminster College.. 141 Riggs V. Palmer 23 V. Riggs 343 Right V. Price 313, 340 Riley v. Riley 303, 308, 331) Ringrose v. Bramham 529 Rishton v. Cobb 224 Risk's Appeal 519 Rivard v. Rivard 161 Roane v. Hollingshead 424 Robb V. Robb 494 Roberts v. Bidwell 193 Roberts v. Dixwell 551 V. Phillips 335, 338, 346 V. Roberts 287 V. Round 399 V. Tarwick 201, 203, 243 V. Welch 323, 324, 327 V. West 478 Robertson v. Johnson 470, 522 V. ]\Iowell 604 V. Smith 269, 273 Robeson v. Kea 266 Robins v. Coryell 308 V. Quinliven 544 Ixx TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Eobinson v. Adams. 74, 144, 159, 168 174, 184, 198, 200, 243 V. Brewster 262, 347, 348 V. Greene 561 V. Hutchinson 243 Eobinson t. Ingrain 268 V. Jones 324 V. Martin 466, 482 V. McDiarmid 529 V. Robinson... 81, 231, 233, 243 246, o55 V. Savage 350 V. Schly 257, 268, 270 V. Shepherd 538 V. Stuart 229, 243 V. Taylor 545 Eobinson, Re 270, 604 Robinson's Goods 265, 274, 287 Eobnett v. Ashlock 289 Eobson V. Jones 257 Robson, Re 512 Roche V. Nason 120, 193, 194 Rockwell V. Bradshaw 491 V. Swift 598 Eockwell's Appeal 250 Roddy V. Fitzgerald 554, 561 Rodisch V. Moore 570 Roe V. Grew 466 V. Taylor 68, 229 Rogers v. Diamond 229, 327, 329 V. Hinton 64 V. Pittis 447, 450 V. Rogers 574 V. Ross 523 Rogers' Estate 24 Rogers v. Smitli 50i) V. Thomas 505 Rogers, Ap])el]ant 458 Rohrer v. Stehnian 266 Rollwagen v. Rollwagen 229 Roney v. Stiltz 29 Roole V. Wilson 304 Rnoff's Ainx-ai 268 Roome v. IMiilli])8 56*2 Root's P^stato 536 hEC. Roper V. Roper 555 Rose V. Hatch 610 V. Hill 483 V. McHose 470 V. Quick 267, 269 Roseboom v. Roseboom 550 Rosher v. Rosher 602 Rosquin v. Hamersley 532 Ross V Christmas 188 V. Drake 530, 565, 566 V. Ewer 264, 326 V. Gleason 427a V. McQuiston 192 V. Ross 508, 559 Rossetter v. Simmons 510, 550 Roth's Succession 256, 352 Roundell v. Currer 599 Roundtree v. Roundtree 565 Rouse V. Branch 605 Rowan's Estate. .298a, 397, 432, 437 Rowe V. Moore 553a Rowlett V. Moore 355 Royle V. Harris 311 Rubeck v. Gardner ^5 Ruckle V. Grafflin 486 Rucker v. Lambdin 350 Ruddell V. Wren 533 Rudff's Appeal 30.i Rudisill V. Rodes 415 Rudy V. Ulrieh. ..236, 417, 418, 410 422 Ruffin V. Ruffin 512 Ruffino's Estate 22, 78a Rugg V. Rugg 347 Riiggles V. Jewett 603 Ruggles V. Randall 542 Runkle v. Gates 243, 386, 305 Runyan v. Price 184, 201, 208 Rusling V. Rusling 245 Russell V. Eubank 559 V. Falls 342 V. Hartley 406, 466, 492a V. Jackson 5S6 V. Russell 534 V. Jones 453 TABLE OF CASES IN" VOL. I. Ixxi See also Table of Cases In Volume II. Sec. Russell V. Webster 277a Rutherford v. Morris '232 Pvutt's Estate 371 Eyall V. Bell 518 Eyan v. Allen 503, 553 V. Cowley 554 Eyder v. Lyon 597 Ryers v. Wheeler 575 Eyman v. Crawford 201, 203, 243 S. , Saberton v. Skeels 544 Sadler v. Sadler 365, 370, 371 Safe Deposit Co. v. Nevin 468 Safe Deposit Co. v. Thom. . .384, 396 397, 398, 401, 431, 434, 442 Salaman, Re 533 Sale V. Thornberry 595 Salmon v. Hays 300 V. Stuyvesant 218 Sammis v. Sammis 503 Samuel v. Samuel 606 Sanborn v. Batchelder 57 V. Clough 512 Sandberg's Will 458a Sanderson v. Bailey 536 Sanford v. Vaughan 280 Santa Clara Academy v. Sullivan 24 Saunders's Appeal 242, 244 Savage v. Bowen 320 Savory, Re 303 Sawyer v. Sawyer 512 Saxon v. WHiitaker 189 Sayre v. Princeton University.. 71 Schaife v. Emmons 371 Scales v. Thornton 373 Scammell v. Wilkinson 50, 59 Scarborough v. Baskin 482 Schad's Appeal 207 Schafer v. Eneu 534 Schaffer v. Katelle 529 Schapiro v. Howard 481, 572 Schillinger v. Bawlek 281 Schlottman v. Hoffman 220, 568 Schley v. McCeney 64 Schluser's Estate Schmidt v. Schmidt 162, Schnable v. Henderson Schnee v. Schnee Schneider v. Manning 77, V. Norris Schofield v. Walker V. Will Scholl's Estate Schull V. Murray Schultz V. Schultz Schumacher v. Schmidt. 454, 456, Schutt v. Missionary Society Scott V. Fink 407, V. Scott 168, V. Terry V. Lord Scarborough ...529, V. Neeves 575, V. West 562, Scott's Estate 539, 540, Scott's Goods Scoville V. Mason Scribner v. Crane 182, 230, Scruby v. Fordham 250, 385, 391, 397, Seal, Re Scale V. Chambliss Seale-Hayne v. Jordell Seaman's Friend Soc. v. Hopper. 159, Searle v. Fieles Sears v. Russell 562, Sechrest v. Edwards 230, 235, Security Trust Co. v. Lovett .... Segur's Will 159, Seibert v. Hatcher V. Wise Seiter v. Straub Seitz V. Faversham 488, Selleck's Will Selwood V. Mildmay Semmes v. Semmes. . . .398, 417, , Senger. v. Senger j Sevening v. Smith 68, 70, Sec. 126 532a 397 330 160 25 S 220 399 480 56 402 457 459 453 454 415 570 540 531 583 563 541 377 513 236 384 430 502 194 404 74 161 513 563 323 535 161 239 477 43 597 230 574 420 540 77 Ixxii TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Severin v. Zack Severson v. Severson Sewall V. Roberts 534, V. Robbins V. Welmer Sewell V. Slingluff 277, 278, Seymour's Trusts Seymour v. Sanford 284, Shakespeare v. Markhand Shailer v. Bumstead. . . .192, 226, 238, 239, 242, 243, Shallcross v. Palmer 243, Shankland's Appeal Sharkey t. McDermott Sharland, Re Sharman, Re Sharp V. Hall V. Sharp Sharp's Appeal Sharpe v. Mathews Shattock V. Shattock Shattuck V. Stickney Shaul's Will 229, Shaver v. Ewald V. McCarthy Shaw V. Camp V. Ford V. Hussey V. Neville V. Shaw Shaffer's Estate Sheath v. York Sheer v. Sheer Sheffield, Re Sheldon v. Dow 32, V. Sheldon Sholdon, Re Shelley v. Bryer Shelley's Case Shopard v. Shepard Shercr v. Bishop Slierrat v. Bontlcy V. Mountfonl Sherwood v. Sanderson V. Sherwood Bhidd.H V. Mifllin Skc. I Sec. 201 Shield's v. Freeman 281 518 Shifley v. Mercantile Co. . . . 572 535 Shingler v. Pemberton .... 265 180 Shires v. Glasscock 341 20 Shore v. Wilson .570, 580 292 Short V. Brubaker 163 544 v. Smith .... 431 595 Showers v. Showers 256 453 Shreinen's Appeal * • • . 159 229 Shriever v. Lynn .... 466 244 Shumway v. Holbrook 295 435 Sibley v. Morse .185, 242 606 V. Perry . . . . 535 454 Sibthrop, Goods of .... 281 566 Sickle's Will .... 233 334 Sieb's Estate .... 168 273 Sigel's Estate .... 469 549 Sills V. Brown ?!•? 137 Silsby V. Bullock 49, 57 268 Silverthorn's Will ..78, 137 64 Simmons v Leonard .327, 339 610 V. Simmons 415 243 Simpson v. Brist 553 600 V. Taxon 407 68 V. Smith 477 282 Simpson, Re 443 602 Simrell's Estate 434 484 Sims V. Sims .569, 610 321 Sinclair's Goods 280 348 Singer v. Taylor .238, 511 397 Singleton v. Tomlinson .281, 282 425 Sisson V. Seabury 464, 466, 552 255 553, 561 566a Sisters of Charity v. Kelly. .325, 326 80 Skerrott's Estate 256, 265, 270 281 Skinner v. Bible Society. . . . .410, 519 403 508 5.36 v. Lewis 163 553 v. Spann 489, 503, 508 599 |Skipworth v. Cabell. .. .410, 519, 598 250 Slade v. Friend 445 478 Slanning v. Style 512 536 Slater v. Dangcrfield ,554 81 v. Slater 238 518 Slaughter v. Health 174 'ji;') v. Stephens 382 TABLE OF CASES IN VOL. I. Ixxiii See also Table of Cases in Volume II. Sec. Sleramer v. Crampton 553 Slinger's Will 81 Slingloff V. Bruner 184a, 353 Slinn's Goods 2G9 Sloan V. Maxwell 32, 174 Sloan's Estate 355 Small V. Jose 513 V. Small 223, 229, 230, 231 236, 325 Smalley v. Smalley 353, 358 Smart v. Tranter 55 Smart's Goods 570 Smee v. Smee 156, 158, 190 Smeer v. Bryer 311 Smiley v. Gambill 386, 387, 395 Smission, Re 542, 563 Smith V. Ashurst 529 V. Baxter 272 V. Bryan 28 V. Bell 463, 466, 467, 471 478, 558, 559 V. Burch 505 V. Butcher 547 V. Campbell 537 V. Clemson 424 V. Codron 327 V. Davis 505 V. Dennis 501 V. Dolby 247, 304, 326 V. Du Bose 22 V. Edrington 11, 486 V. Evans 309 V. Tenner 243, 248, 386 V. Goodell 348 V. Harris 306, 308, 407 V. Hastings 553 V. Henline 68,227,229, 237 242, 245 V. Holden 272, 323 V. Humphreys 453 V. Hunter 534 V. James 77, 160 V. Jewitt 512, 599 V. Jones 355 V. Joyner 532a V. Keller 229, 242, 243 Smith V. Kimball 583 V. Lidiard 536 V. McChesney 407 V. Parsons 5G2 V. Pepper 538 V. Piper 472 V. Ridgway 501 V. Robertson 20 V. Scott 268 V. Smith.. 77, 187, 241, 267, 268a 279, 327, 510, 522, 565, 583 V. Shriver 479 V. Streatfield 541 V. Sweet 49, 56 V. Tebbitt...70, 74, 83, 147, 153 154, 155, 157, 166, 210 V. Terry 522 V. Thompson 611 V. Thurman 377 V. West 560 Smith, G^ods of 48, 51, 263, 293 Smith's Goods 219 Trusts, Re 529 vSmith, Re 21a, 447, 505, 533 Smith's Will 168, 186, 367 Smithdeal v. Smith 3fi5 Smithwick v. Jordan 384 Smithsonian Inst. v. Meech 605 Smock V. Smock 393, 401 Smythe v. Smythe 603 Snider v. Burks 399 Snow V. Benton 110, 189, 192 iSnowhill V. Snowhill 406 Snydam v. Thayer 470 Snyder v. Bull 354 V. Erwin 237a V. Sherman 136, 137 V. Snyder 454 V. Warbasse 220 Soar V. Dolman 433 Soher's Estate 256, 318 Somers v. McCready 231 Soper V. Brown 535 Sorenson v. Carey 574 Southard v. Southard 564a Sorver v. Brendt 533 Ixxiv TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Sec. Soule's Will 245, 246 Southall V. Jones 299 Southworth v. Adams 402, '412 V. Southworth 83, 29Sa Soward v. Soward 312, 335 Sparhawk v. iSparhawk . . 23, 350, 353 Sparks's Appeal 501 Speer v. Colbert 24 Spence v. Spence 194 Spencer v. Adams 503, 563 V. Spencer 29a, 294, 253a V. Ten-}' 185 Spencer's Estate 168 Sperl's Estate 246 Sperling's Goods 332 Spinney v. Eaton 427, 466 Spooner's Trusts 519 Sprague v. Luther 303 Spratt V. Spratt 70 Spratt's Goods 287, 366 Sprigge V. Sprigge 402 Spreckles' Estate 478, 490 Springer v. Congleton 529 Springett v. Jennings 521 St. John's Parish v. Bostwick. . . 280 St. Leger's Appeal 68, 245 St. Stevens Church v. Morris .... 489 Stackhouse v. Houton..l59, 160, 203 vStall V. Stall 84 Stametz v. Michenor 246 Stamford v. Wliite 398 Stamper v. Hooks 378 Standen v. Standen 525, 583 Standenmeier v. Williamson.... 210 Stanley v. Colt 562, 598 Stanton v. Wetherwax 159 Stapilton v. Stapilton 605 Staples V. Wellington.. 11 4, 122, 187 Stark's Will 504 Starkey v. Brooks 545 Starling v. Price 529, 532 Starret v. Douglas 125 .Staser v. Ilogan 242 State V. Clarke 41 V. Jones 15'J Sec. State V. Pike 200, 202 V. Raughley 529 V. Terrell 210 State Banic v. Bliss 457 Stead V. Mellor 595 Stead V. Curtis 2^5 Stebbins v. Hart 128 V. Stebbins 478 Steed V. Galley 110, 111, 189 Steel V. Cook 2S Steele v. Midland 50) Steele, Goods of 443 Steinke's Will 403 Steinmetz's Estate 533 Stephens v. Taprell 392 Stephenson v. Stephenson 243 Stephenson, Re 588, 594- Stetson V. Stetson 415 Stevens v. Bagwell 48 V. Lee 454 V. Snelling 484 V. Stevens 187 V. Vaneleve 67, 198, 303 V. Winship 558 Stevenson v. Fox 5G5 V. Hudddleson 266, 268 Stewart v. Elliott 228 V. Harriman 354 V. Lispenard 69, 92, 18S V. Lyons 67, 72, 229, 246 V. Mulholland 42 1- V. Powell 424 V. Ross 57 V. Sheffield 521 V. Stewart ...243, 270, 297, 481 516, 534 Stevens v. Myers 4.^0 Stickney's Will COO Stickney v. Hammond 420 Still V. Hoste 57 ^ Stimson v. Vroman 476 Stimson's Estate 1, 301, 312 354, 595 Stirk's Estate 221 Stirling v. Stirling 198, 322, 323 TABLE OF CARES IW VOL. I. Ixxv See also Table of Cases in Volume II. Sec. Stockdale v. Nicholson 544 Stockwell V. Ritherdon 387 Stoddard v. Grant 407 V. Nelson 536 Stone, Re 539 Stone V. Damon 81 V. Hoskins 458a V. North 507 V. Todd 453 Storer v. Wheatley 543 Stoutenburgh v. Hopkins. 56, 84, 239 Stover V. Kendall 430, 431, 447 Stracy, Goods of 456 Strathmore v. Bowes 449 Strauss v. Schmidt 287 Straw V. East Maine Conference. 583 Streatley, Goods of 335 Stretch v. Watkins 507 Strieker v. Groves 312 Strickland v. Strickland 399 Stride v. Cooper 445 Strish V. Pelham 378 Strode v. Lady Falkland 568 Strong V. White 506 Strong's Appeal 384 ] Stroud V. Connelly 56 Struth V. Decker 232, 239 Stubbs V. Houston. 188, 201, 206, 207 Stull V. Stull 147, 162, 229 Sturdivant v. Brichett. .328, 342, 343 Sturgis V. Work 518 Siigden V. Lord St. Leonards. 402, 403 Sullivan v. Sullivan. 23, 350, 351, 355 V. Winthrop 570 Sumner v. Crane 453 Summit v. Yount 466, 603 Sumpter v. Carter 463 Sunday's Estate 2G8, 268a, 271 Sunderland v. Hood 22, 229 Sunderland, Re 281, 282 Surface v. Bentz 185 Surman v. Surman 592 Sutcliffe v. Ricliard^on 604 Suter V. Suter 600 Sutton V. Cole 5S3 V. Morgan 209 Sec. Sutton V. Sadler 173, 175, 176 V. Sutton 194, 229, 391 397, 430 SVabie v. Colby 541 Swaim's Will 284 Swan V. Holmes 541 Swann v. Housman 454 V. Hammond 424: Swanson's Succession 387, 396 Swasey v. Jaques 543 V. Burnett 505 Sweaingen v. Inman 239 Sweet V. Dutton 542, 547 v. Sweet 393, 39G Swenarton v. Hancock 240 Swenson's Estate 547 Swett V, Boardman 218, 272, 278 Swift V. Duffield 532 V. Swift 494 V. Wiley 330 Swinburne, Re 539 Swinford, Goods of 321 Swinton v. Bailey 391, 397 Swygart v. Willard 159. 193 Sydnor v. Palmer 534 Sykes v. Sykes 407, 519 Syme v. Boughton 184 Symes v. Green 110, 173, 176, 188 Symmes v. Arnold 265 T. Taafe v. Conmee 541 Taber v. Packwood 57 Taff V. Hosmer 175, 184 Taggart v. Squire 400, 349 Talby v. Eutcerworth 374 Tamplin, Goods of 295 Tanton v. Keller 450 Tapley v. Keiit 2Co Tappan's Appeal 604 Tappen v. Davidson 346 Tappenden v. Walsh 52 Tarrant v. Core 29 Tate V. Tate 255 Tatham v. Wright. Ill, 175, 179, 1S2 Taubenhan v. Dunz 514 Ixxvi TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Sec. Tawney v. Long 159, 229, 230 237, 239 Taylor v. Beverly 544 V. Brodhead 346 V. Cox 68 V. Creswell 187 V. D'Egville 279 V. Higga 453 V. Kelly 270, 386 V. Meads 51 V. Mitchell 453, 489 V. Mosher 530, 562 V. Pegram 83, 403 V. Purdy 268 V. Richardson 584 V. Taylor 405, 415, 518, 535 V. Toien 575, 583 V. Wilburn 238 Taylor, Re 573 Taylor's Estate 312 Teacle's Estate 406, 407 Tempest v. Tempest 23, 357 Temple v. Mead 258 V. Sammis 474 V. Temple 126, 188 V. Walker 299 Templeton v. Butler 427 Tennent v. Tennent 496 Terrible, Re 443 Terry v. Glover 268 Teske v. Dittberner 453a, 454 Towksbury v. French 516 Tharp, Re 53 Thayer v. Spear 604 V. Wellington 281, 521, 546 Theological Seminary v. Calhoun 184 Thickeld v. Bond 185 Thomas v. Anderson 562 V. Carter VH V. Evans 408, 417, 421 V. Ivcvering 409 V. Lines 570 V. Miller 539 V. Tliomas 515, 560 Thomas's Estate 501 Thompson v. Browne 205 Sec. Thompson v. Churchill 487 V. Davitte 239, .331 V. Gaut 470, 513 V. Grant 605 V. Hawks 168, 246 V. Ish 68, 229 V. Johnson 273 V. Kyner 67, 68, 174, 175. 180 V. Lawley 494 V. Newlin 489 V. Peterson 239 V. Pew 294 V. Quimby 159, 281 V. Stevens 326 V. Svi'oope 24 V, Thompson... 159, 160, 167, 105 270, 303, 487 V. Updegraff 243 V. Young 540, 544 Thompson, Ex parte 366, 367 Thompson, Re 418, 543 Thompson's Will 238 I Thompson, Goods of 216 I Thomson v. Ludington 533 I Thorncroft v. Lashmar 279, 294 |Thorne, Goods of 287, 367 Thorne v. Rooke 423 Thornton v. Thornton 177, 178 198, 240 Thornton's Goods 385 Thorold v. Thorold 265 Thorp V. Owen 595 Thrasher v. Ingam 476, 478, 489 Thwaites v. Over 537 Thynne v. Stanhope 398 Tibbits v. Tibbits 601 Tiers v. Tiers 473 Tiffany v. Emmett 533, 537 Tiffin V. Longman 537 Tilden v. Green 592a V. Tilden. ...'.. 32', 347, 437, 599 Tilghman, Re 545 Tillinghast v. Bradford 006 Tilman v. Davis 542 Tilton v. American Bible Society 573 v. Tilton 561 TABLE OF CASES IN VOL. I. Ixxvii See also Table of Cases In Volume II. Sec. Timewell v. Perkins 514 Timon v. Claffy 387, 388 Tindall v. Tindall 519 Tingley v. Cowgill 174 Titlow V. Titlow 81 Tittel's Estate 161 Todd V. Sawyer 602 V. Todd 68, 185 Todd's Will 265, 289 Toebbe v. Williams 256, 275 Tolson V. Tolson 537 Tomlinson v. Burg 512 V. Tomlinson 425 Tomlinson's Estate 391 , 397 Tompkins, Re 610 Toms V. Williams 21 Toner v. Collins 563 Tongue v. Nut well 521, 546 Tonnele v. Hall 281, 314, 337 Toomes's Estate 204 Torrey v. Burney 200 Tower v. Butts 532 Towle V. Towle 453 Townsend v. Bogart 70, 82, 93 Townshend v. Howard 393 Townsend v. Moore 411 V. Pepperell 194 V. Savings Bank 566a V. Townsend 223 V. Vanderwether 453 V. Townshend 187 V. Windham 566 Townsend's Estate 77, 238, 244 Towry, Re 438 Trappes v. Meredith 64 Traylor's Estate 584, 588 Tredwell, Re 603 Trelvar v. Lean 345 Trethewy v. Helgar 544 Trevanion v. Vivian 523 Trevanion, Re 328 Tribe v. Tribe 341 Trice v. Shipton 386 Trimlestown v. D' Alton 248 Trimmell v. Fell 424 Trinitarium Church, Re 353 Trlnnel's Goods 341 Sec. Trost V. Dingier 229 Troutbeck v. Boughey 52 Trubey v. Richardson 194, 245 Trumbull v. Gibbons 162 Trust Co. V. Wolcott 602 Trust Co., P 501 Tucker v. Lisliop 531 V. Calvert 241 V. Field 227 V. Inman 48, 50 V. Oxner 324 V. Seaman's Aid Society. 24, 575 578, 579 V. Tucker 354 Tudor V. Tudor 430 Tugman v. Hopkins 64 Tuller, Re 424 Tullls V. Kidd 205 Tunlson v. Tunlson 233 Tupper V. Tupper 398, 418 Turner v. Anderson 68, 229 V. Cheesman 178, 198 203, 209, 227, 229 V. Cook 174, 324 V. Hand 159, 162 V. Ivie 555 V. Scott 257 V. Withers 533 Turner, Ex parte 365 Turner's Appeal 68, 227, 228 Turners Estate 491 Turner's Will 477, 516 Turell's Will 2.55 Turnure v. Turnure 326 Tussey v. Owen 454 Tuttle V. Puitt 539 Twopenny v. Peyton 606 Tyler, Re 21 Tyler v. Gardiner 239, 246 V. Merchant Taylor's Co 434 V. Theilig 310 V. Wheeler 56 V. Wright 566a Tyner's Estate 236 Tyrrell v. Lyford 516 Tyson v. Tyson 174, 184 Ixjxviii TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. U. Ulrich's Appeal 475, 514, Underwood v. Thurman Union Trust Co. v. St. Luke's Hospital United States v. McGlue University CJollege v. Taylor . . . Upcburch v. Upchurch 303, 312, 328, Upfil V. Marshall Upham V. Plankington Upington v. Corrigan Usticke V. Bowden 413, Utterson v. Utterson Yail V. Vail Van Alst v. Hunter 77, 132, 135, Van Alstyne v. Spraker Van Amee v. Jackson Van Buren v. Dash Vance v. Upson 194, V. Vance Van den Heuvel's Will Van Deuzer v. Gordon. 366, 367, Vandeveer v. Higgins VandruflF v. Rirehait 303, Van Gallow v. Brandt. 540, 562, Van Gorder v. Smith Van Grutten v. Foxwell Van Hanswick v. Wiese Van Horn v. Campbell Van Horn v. Deraarest Van Kleeck v. Phipps Van Ness's Will Van Rensselaer v. Kearney Vanvalkcnherg v. Vanvalkcnburg Van Verhton v. Keator Van Wert v. Benedict Van Winkle v. Schoonmakor. . . . Van Wowrt's Will 3f)4, Sec. 55!) 243 57S 212 28] 464 305 330 450 611 28 439 439 480 134 137 483 595 535 251 243 174 368 378 424 306 562a 570 595 552 306 560 274 239 294 556 243 47S 417 40 397 Sec. Varick v. .Jackson 28 Varrell v. Wendell 537 Vaughan v. Burford 328 V. Dickes 564 Vaughan, Re 21 Veal V. Veal 271 Vedder, Re 137, 159, 160, 16S Veeland v. Ryno 56 Vermont Baptist Convention v. Ladd 583 Vernam v. Spencer 268 Vernon v. Kirk. . .247, 303, 304, 306 347 Verplanck, Re 538^ Vessey v. Wilkinson 562 Vestal V. Garrett 409 Viele V. Keeler 417, 437 Villar V. Gilbey 480, 533 Viner v. Francis 529 Vines v. Clingfost 303, 306, 308 Vine's Estate 287 Vogt v. Graff 55^ Von de Veld v. Judy 78 Voodry v. University of Illinois. 72 Voorhis v. Voorhis 385 Voorhis, Re 326 Voorhis' Will 422 Vosberg v. Mallory 63 Vreeland v. McClelland 77 v. Ryno 56 Vrooman v. Powers 375 W. Wade-Gerry v. Handley 52S Wadhaus v. American Home Mis- sionary Society 57 Wadsworth v. Wadsworth 23 Wagner v. Ellis 45, 49 v. Marr 457 V. M'Donald 265, 289 v. Sharp 540 v. Ziegler 174 Wagner, Estate of 49 WagstafT. Re 603 Wain waring v. Becvor 531 TABLE OF CASES IN VOL. I. Ixxix See also Table of Cases in Volume II. Sec. Wainwright's Appeal 229 Wait V. Belding 10, 29 Wait V. Coombes .'30.5 V, Frisbie 306, 317 WakefieW v. Phelps 11, 60, 486 Walcott V. Ochterlong 417 Wales V. Templeton 516 Walker ▼. Dewing 566 V. Fields 210 Walker v. Griffin 540 V. Hill 608 V. Hunter 299, 238 V. Jones 266 V. Maine 565 V. Smith 245 V. Steers 427 V. Walker.... 318, 342, 426, 456 457, 459, 478 V. Webster 539 Walker, Goods of 311 Walker's Estate 332, 564 Walker's Will 68, 185 Walkerly's Estate 477 Wall V. Wall 256 Wall, Re 60.5 Wallace v. Diehl 563 V. Foxnall 579 V. Noland 461, 481 V. Smith 602 V. Wallace 10, 453 Wallen v. Wallen 239 Waller v. Waller 256, 312 Wallis V. Taylor 544 Walls V. Walls 77, 238, 242 Walpole V. Cholmondeley 450 V. Oxford 454 Walter's Will, Re 259 V. Kendrick 317a V. Walton 426 Walton's Estate 447 Wampler v. Han-ell 68, 89a V. Wampler 98, 317 Ward V. Amory 468, 474 V, Brown 18.5 V. Glenn 49 Sec. Ward V. Patterson 600 V. Saunders '. 542 V. Ward 426, 487 V. Wolf 19 Ward's Goods 287 Ward's Will 424 Warden v. Overman 481 Ware v. Rowland 563 V. Ware 194, 195, 244 Ware, Re 544 Waring v. Lee 536 V. Waring. 74, 77, 143, 155, 156 157, 159 Warner v. Bates 595 V. Beach 424, 425, 427 V. Warner 420, 425 Warren v. Baxter 350, 351, 354 V. Harding 366, 367 Warrington, v. Warrington 566 Warwick v. Warwick 256, 312 Washburn v. Cuddihy 210 Washington's Estate 21 Waterman v. Greene 550 V. Hawkins 42r) V. Whitney 243 Waters v. Cline 453 V. Waters 174, 227, 240 Watkins v. Dean 257, 265 Watkins, Goods of 282 Watson V. Anderson : . . . 211 V. Donnelly 70 Watson V. Hinson 434 V. McLenck 427 V. Piper 326, 342 V. Watson 137 Watson's Will 191 Watts V. Cole 28 V. Public Administrator.266, 312 Waugh V. Riley 35 Wayman v. Follansbee 532a Weare r. W«are 512 Weatherall v. Thornburgh 523 V. Weatherall 126, 128 Weatherhead v. Baskerville . 480, 585 Webb V. Byng 555 Ixxx TABLE OF CASES IN VOL. I. See also Table of Cases In Volume II. Sec. Webb V. Fleming 323, 327 V. Haj-den 5711 V. Jones 424 V. Lines 565 V. Sweet 553a V. Wools 595 Webb, Goods of 327 Webber v. Sullivan 230 Weber v. Strobel 243 Webster v. Cooper 562 V. Morris 604 V. Weirs 512, 514 V. Yorty 323 Weed V. Hoge 501 Weeden v. Bartlett 374 Weedman's Estate 67, 68, 70 Weeks v. Cornwell 470 V. Mansfield 472 V. McBeth 402 Weems v. Weems 201 Weil V. King 562 Weir V. Fitzgerald . 95, 96, 98, 99, 238 Welch V. Adams 323, 327 V. Blanchard 520 V. Brimmer 563 V. Phillips 413 V. Welch 347 Wellborn v. Townsend 486 Wellington v. Aptborp 453 V. Wellington 425 Wells V. Doane 263 Wells V. Thompson 174 Wells, Re 570 Welsh V. Gist 400 Welsh, Re 240, 246, 248, 250 West ▼. West 57. 64 V. Shuttleworth 21 Wostcott V. Cady 468, 566 Wofltcott V. Binford 552 W«»8tcott V. Rlioppard 231 Wpflter V. Wcatf-r 231 We.stlake v. Wcatlake 577 Wfthfrb«> V. Wetherbeo 207 W.-thoriirH Estate 5.32 Wetrnorc v. Carryl 435 Sec. Wetmore v. Parker 437 Wetter v. Habersham 174, 190 V. Walker 559 Wetzel V. Firebaugh 72 Weybriglit v. Powell 564 Whall V. Converse 527, 563 Wharton v. Barker 563 Wharton's Will 185 Wheatland v. Dodge 555 Wheeler v. Bent 434 V. Dunlap 510 Wheeler's Will 575 Wheeloek's Will 193 Whetstine v. Wilson 453 Whipple v. Eddy : . . . 168 Whitcomb's Estate 595 White V. Allen 474 V. Briggs 537 V. British Museum 326 V. Casten 395 V. Coram 484 V. Driver 110, 111, 189. V. Fisk 519 V. Hicks 526 V. Howard 24 V. Institute of Technology.. 477 V. Keller 562 V. Repton 367 V. Springeth 563 V. Starr 139 V. Underwood 529 V. Wager 57, 60 V. White 21, 26, 236, 606 White's Will.. 162, 164, 233, 387, 393 Whitebread v. Lord 531 White Home v. Heag 110 Whitehorn v. Harris 537 Whitpsides v. Whitesides 592 Whitfield V. Langdale 516 ^\'^liting V. Whiting 607 Wliiting's Appeal 449 Whiting's Settlement 603 Whitlock V. Wardlaw 248 V. Wardwell 220 Whitman v. Moroy.177, 188, 10!?, 243 Whitney v. Twombly 150, 161 TABLE OF CASES IIS" VOL. I. Ixxxi See also Table of Cases in Volume II. Sec. Whitney v. Olney 600, 501 Whitney's Will 312 Whitsett V. Belue 126, 303, 306 Whyte V. Pollock. .255, 256, 277, 279 Widmore v. Woodroffe 537 Wiegel V. Wiegel 256 Wikoflf'3 Appeal 280, 284, 314 337, 450 Wikk V. Wolley 488a- Wilbourn v. Shell 9, 256 Wilbur V. Tobey 23, 35 V. Wilbur. . . . . .174, 175, 244, 247 | Wilce V. Van Anden 594, 610 Wild's Case 555 Wilder v. Thayer 426: Wilenon v. Handlon 268 ' Wiley's Estate 374 Wilkins v. Allen 569, 587 Wilkinson v. Adam 534 V. Joughin 224 V. Leland 295 V. Pearson ; 208 V. Service 120, 174, 185, 193 V. Wilkinson 604 Wilkinson, Re 526 Will V. Sisters 356 Willat, Re 490 Willbor, Re 565 Willey's Estate 281 Williams v. Ashton 435 V. Baptist Church 595 V. Baker 60 V. Brice 29 V. Burnett 309 V. Campbell 19 V. Carson 28 V. Goude 112, 229 V. Oreen 560, 565a V. Jones 389 V. Lewis 557 V. McComb 511 V. Miles 402,412, 437 V. Neff 529 V. Robinson. . .174, 175, ISO, 184 V.Spencer 198, 208 V. Tolbert 268, 272 Sec. WiUiams v. Syley 389, 398 V. Way 357 v. Williams ...21, 263, 408, 415 416, 445, 581 Williams's Succession 482. Williamson v. Grider 492a V.Williamson 466, 542 Willing V. Baine 565 Willis V. Hiscox 552, 600, 602 V. Lowe 311 V. Moot 327 V. Richardson 531 Willis's Will 554 Willock V. Noble 46, 48, 50, 52 58, 59 Wills V. Cooper 495 V. Foltz 533 V. Palmer 551 V. Wills 541 Wilmerding's Will 328 Wilmouth V. Wilmouth 478 Wilson V. Bedard 303 V. Curtis 503 V. Fritts 20 V. Mitchell ... 68, 70, 78, 83, 84 96, 136, 137, 141, 239 V. Moran 239 V. Turner 559 V. Wilson 413 Wilson's Appeal 225, 236 Wilson, Goods of 217, 334, 335 Wind V. Jekyle 29 Wineland's Appeal 312 Wing V. Deans 56 Wingfield v. Wingfield 547, 565 Wingrove v. Wingrove 227 Winkley v. Kaime 575, 580 Winn, Goods of 287 Winne v. Winne 453a Winslow V. Goodwin 28 V. Kimball 355 Winter v. Dibble 535 Wirth v. Wirth 426a Wistar v. Scott 535 Witherspoon v. Witherspoon. . . . 26G WithinGjton v. Withington 349 Ixxxii TABLE OF CASES IN VOL. I. See also Table of Cases in Volume II. Sec. Withy V. Mangles 543, 547 Witt V. Gardiner 242 Witter V. Mott 420, 445 Wittman v. Goodhand. .227, 229, 382 Wolbert v. Beard 595 Wolf V. Bollinger 431 V. Schoefner 512 Wolffe V. Loeb 565 Wolford V. Herrington 586 Wollaston, Re 59, 446 Wombacher v. Barthelme 248 Wood V. Bishop. . . .. 238, 239 V. Lane 67 V. Mitcham 479 V.Roane 365, 456 V. Sawyer 283 V. Tredway 426 V. Trust Co 303 V. White 2-20 V. Wood 414, 471, 483, 537 Wood, Matter of 262, 268 Wood, Re 568 Woodberry v. Obear 212 Woodbury v. Hayden 597 Woodfill V. Patton 393 Woodhouse v. Balfour 347 V. Herrick 554 V. Meredith 495 Woodington, Re 311 Woodley, Goods of 311 Woodman v. Illinois Bank 232 V. Woodman 525, 562 Woodruff V. Midgeon 578 V. White 479 V. Woodruff 553 Woods' E-state 137, 138 Woods V. Moore 516 V. Woods 595 Woodward v. Camp 61 V. Goulstone 402, 403 V. JamoH 229, 540 V. Woodward 427 Wooflward, f.'oods of 34."), 4.^0 Woodward, Re 389, 40) Woolcomb V. Woolfomb 51") \'.o>]lcy V. WooUey 347 ^KC. Woolmer's Kstate 519 Woolton V. Redd. . .243. 488. 579, 5:t4 Worcester v. Worcester 529 Worthington v. Klemm 317 Wotton, Goods of 311 Workman v. Cannon 476 Worman, Goods of 53 Wrench v. Jutting 514 Wright V. Atkyns 537, 549 V. Denn. .477, 479, 483, 498, 549 V. Hicks 479 V. Lewis 189, 342 V. Manifold 341 V. Methodist Church 545 V. Rogers 347 V. Sanderson 322 V. Tatha.m 192, 193, 194, 202 V. Trustees 542 V. Vernnn 551 V. Wakeford 300 V. Wright 261, 327. 345 431, 572 Wright's Estate 145, 149 Wrightson v. Macaulay 563 Wuesthpff V. Germania Life Ins Co 309 Wyatt V. Berry 322, 327, 323 V. Sadler 483 Wylde, Re 566 Wyche v. Clapp 460 Wyeth V. Stone 542, 547 Wyman v. Gould 200 V. Symmes 354 Wyndham v. Chetwynd 35] V. Wyndham 523 Wynn v. Bartlett 507 Wynne v. Hawkins 263 V. Wynne 486, 522, 599 Wynch, Ex parte 557 y. Yardley v. Cuthbertson 206, 245 246, 247 Yarnall's Will 371, 374 Yates V. Clark 558 V. Cole 220 TABLE OF CASES IN VOL. I. Ixxxiii See also Table of Cases in Volume IL Yeaton v. Roberts. Yerby v. Yerby . . . . Yess V. Yess , Y'glesias v. Dyke . . Yoe V. McCord. . . . York V. Waller . . . Yost V. McKee . . . . Young V. Bradley. V. Ridenbaugh Younger v. Duffie . . Youngs V. Y'^oungs. Youngs' Appeal . . .236, Seo. 532 425 246 150 229 449 478 609 68 312 524 540 Sec. Youngs Will 313, 375 Y'ouse V. Forraan 436 Z. Zacharias v. Collis 38 Zeisweiss v. James 24 Zerega v. Percival 255 Zein'a Estate 3 Zillmer v. Landguth 600, 602 Zimmerman v. Hafer 479 Zimmerman v. Zimmerman. 236, 281 THE LAW OF WILLS. PART I. INTRODUCTORY CHAPTER. NATURE AND ORIGIN OF TESTAMENTARY DISPOSITION. § 1. Definition of Will. A will, in our legal sense, is the solemn disposition of one's property, to take effect after death ; ^ and in this disposition one fitly contemplates not only the purposes to which such property shall be devoted, but the person or persons by whom those purposes shall be executed, or carried into effect.^ The will being, in vernacular speech, that faculty by which we purpose and choose, the word itself comes naturally to denote the purpose, the choice itself as fixed upon, and hence, in our present technical sense of the word, the authentic and final declaration of that choice or purpose. 1. Bouvier Diet. "Will;" Swin- burne Wills, pt. 1, § 2; Godolphin, pt. 1, c. 1, § 2. The legal declaration of one's intent as to the manner in which he wishes his property disposed of, or what he wishes performed after his death. Stinson's Estate, 77 A. 807, 228 Penn. 475; Smith v. Smith, 70 S. E. 491, 112 Va. 205. 2. As to the appointment of exe- cutors, see Schouler Executors & Ad- ministrators, §§ 1030-1032 (Vol. II). Swinburne appears to have considered that the naming of an executor was indispensable to the validity of a will. Swinb. pt. 1, § 3 ; 1 Redfield Wills, 6, note. But modern opinion. English and American, is quite to the contrary. Schoul. Exrs. & Admrs. § 1003 (Vol. II); 93 N. Y. S. 1004. On the other hand, wills in modern times are frequently made for the ex- clusive purpose of naming an execu- tor; the property itself, in such a case, being intended to go, by way of descent and distribution, as if no will had been made. Legislation and prac- tice provide what, in each respect, the will in either event may have left wanting, after the geneial scheme which public policy has framed. See Schoul, Exrs. & Admrs. §§ 1122-1127 (Vol. II). § 2 THE LAW OF WILLS. [PAET I. § 2. Last Will and Testament; Testament and Testator. "Last will" or "last will and testament" is the English phrase used from the earliest times as peculiarly appropriate to this solemn disposition, if not the indispensable means of denoting it. And, indeed, it should be observed that the use of the word "will" alone in this connection, rather than "testament," is confined tO' England and the countries whose language and jurisprudence are derived from the English source. " Testament " is the expressive word which the Roman civil law supplies in this connection ; * the continental jurists make use of no other; and our own professional men, British and American, not only prefer still to link the worda "will" and "testament" together, whenever one draws up a writ- ten disposition of this sort for a client, but found upon the Latin iestamentum exclusively the secondary forms most convenient for discussing our general subject. He or she who makes the will is to this day, in English law, the "testator" or "testatrix," as the case may be ; one dies "testate," leaving a valid will at his death, or "intestate" without one ; we speak of "testamentary causes," a "testamentary gift," a "testamentary guardian," and "letters testamentary" ; while "will," on the other hand, as used in our law, furnishes not a single derivative.^ In brief, "testament" comes readily to hand, coined for the convenience of jurists the 4. There has been some controversy his mivd and icill in relation to it.. as to whether the word testamentum Bouvier Diet. "Will; " 2 Bl. Com. is strictly derived from testatum or 499. from that word in combination with That " testament " as an English mentis. Bac. Abr. " Wills and Testa- word has a primary fitness here ments," A.; Inst. 2, 10; Co. Inst. Ill, which "will" has not. is, however^ 322. In Webster's Dictionary " tes- obvious; for "testament" is de- tament " is said to come from testari, fined as the formal legal declaration to be a witness, etc., from testis, a or expression of one's " will." See witness. And see 2 Bl. Com. 499. " Testament," Webster & Worcester. The controversy appears to be of lit- The civilians do not seem to define tie conKOfjnonce, for in any view it is " testament " in their law with such the final declaration of the person in precision. Domat, lib. 1. tit. 1, § 1; regard to the disposition of his prop- Bouvier "Testament." erty. It ifl his testimony upon that 5. See Bouvier and other law die* Buhject, and that is the expression of tionaries on this point. PART I.] INTRODUCTION. § 3 world over; but "will," wliicli is at best a secondary medium of expression, does not. Blackstone in his Commentaries inclines plainly to a choice of the former, while regarding, it would appear, the two words as in substance synonymous f other English author- ities drew subtle distinctions between " will " and " testament," while conceding, at least, that " will " or " last will " were expressions promiscuously used in English law.^ We of the present day, however, may fairly treat " will," " testament," and " last will and testament " as legal terms standing, without prac- tical difference, for one and the same thing. § 3. Gift; Devise; Bequest. The usual phrase of testamentary disposition being, " I give, devise, and bequeath," it is well to notice the significance of these several words. '' Gift," in our law, is a word of considerable scope, corresponding tx> the Roman donatio ; it embraces all voluntaiy transfers of property without consideration f and' appears well adapted to the language of one's last will and testa- ment, inasmuch as the ruling motive of the testator is to confer of his own free will and gratuitously. " Devise " and " bequest" are words of more technical constraint. " Devise," properly speaking, is a gift of real property by one's last will and testa- ment; and cannot with legal precision be applied to things per- sonal.^ " Bequest," on the other hand, is a gift by will of personal 6. 2 Bl. Com. 489 et seq.^, chapter professional men were much inclined on "Title by testament and adminis- to narrow the definition of a Inst will tration." and testament, so as to apply the 7. See Bac. Abr. " Wills and Testa- term to personal pi operty, using ments," A; Co. Inst. 111. Here it is "devise" where real estate was oper- said that by the common law, where ated upon. For a devise of lands was lands or tenements are devised, it is treated at the common law not so properly called a last will; and where much in the nature of a testament a3 it concerns chattels only, a testament. a sort of conveyance by v;ay of ap- 8. 2 Schoul. Pers. Prop. 3d Ed. § pointment of particular lands to a 54; Bouv. Diet. "Gift," "Donation;" particular devisee. Harwood v. Good- Schoul. Exrs. & Admrs. § 1368 (vol. right, Cowp. 90, per Lord Mansfield; II). 1 Wms. Exrs. 7th Ed. 6. But the 9. Bouv. Diet. " Devise." Formerly more general and popular definition § 5 THE LAW OF WILLS. [PAET I. property : and tlie word is inappropriate where the disposition relates to real estate/ Out of favor to the manifest intent of a testator, as shown by the context of the will, courts will often in these modern days construe " bequest " into '' devise," and vice versa, notwithstand- ing verbal inaccuracies of this kind f and yet, wherever disposi- tion is intended of real and personal property in combination, the phrase " devise and bequeath " or " give, devise and bequeath " is certainly the more elegant, as well as the more accurate and com- prehensive expression to use, when drawing up a will. § 4. Property: Real, Personal and Mixed. Once more, a will which aims at some comprehensive disposition of property in combination, is often drawn as embracing " all m}' property, real, personal and mixed. " We need not point out the distinction between real and personal property in the present vol- ume; but shall only observe that "mixed property," so called, relates to that kind of property such as heirlooms and fixtures, which the law does not easily assign to the class exclusively, of real or personal ; being, so to speak, a compound of both, or at the border line of division.^ § 5. Legacy. That gift or disposition which comes to a survivor through one's last will is widely denoted as a " legacy." The tenn is more com- monly applied to money or other personal property, in this connection, than to real estate ; but " devise " standing, already, as we have shown, in technical contrast with " bequest " to mark a distinction, this word " legacy " acquires readily a popular sense, which regards rather the value of the gift than the elements, real of a last will and tcst;unent embraces 2. Schoul. Exrs. & Admrs. § 1004 l)otli real and personal property as (vol. II). ahuve. See 4 Kent Com. 502. 3. 2 Sharsw. Blackstonc Com. 428; 1. Boiiv. Dipt. " Bequest." See §§ 28, 29, post; 1 Schoul. Pers. Prop. ZienN Kstnte, 134 N. W. 498, 117 §§ 94, 111. Minn. 178. TART I.] INTRODUCTION. § 7 or personal, of which it may happen to be composed.* Unlike '' bequest," moreover, the word " legacy " has a corresponding word " legatee," to designate the person taking under the will." § 6. Wills, Written and Unwritten, or Nuncupative. Wills or testaments are of two kinds, written and unwritten ; the latter being also designated in law as verbal or nuncupative.® Nuncupative wills or testaments (which have a place in the Roman civil law) are so called from nuncupare, to name, declai'e or make a solemn declaration, because the testator declares his will in extremis before a sufficient number of witnesses whose oral proof must afterwards establish it. These verbal wills offer great temptation to fraud and perjury, besides occasioning much honest error, and the need of them lessens as the art of penmanship be- comes more universal and writing materials abound. The Statute of Frauds, 29 Car. II. c. 3, laid them under various restrictions ; and the tenor of legislation, English and American, at the present day is to invalidate them altogether, except as to soldiers in actual military service and mariners at sea, or where, perhaps, the amount of property is trivial ; and at all events to wills of personalty alone.^ § 7. Codicils, or Postscripts to Wills. A codicil is in modern practice a sort of postscript to a will, being an exposition of the testator's afterthought.^ This word is 4. Schoul. Exrs. & Admrs. § 1459 courts in these days, so as to exclude (vol. II); Bouv. Diet. "Legacy;" the testator's obvious intent. Ladd Wms. Exrs. 1051. v. Harvey, 1 Fost. (N. H.) 514. The 5. This is admitted in 1 Redf. word " legatee " has even been con- Wills, 6, though the learned author strued to mean " distributee " in a appears to prefer "bequest" as the will out of regard to this same ob- convenient term for general use. vious intent of a testator. Laller- From what we have said in the text stedt v. Jennings, 23 Ga. 571. (§§ 2, 3) the reader perceives that 6. 2 Bl. Com. 500. technical accuracy in the use of these 7. See Nuncupative Wills, §§ 359- words, "devise," "legacy," and "be- 379. post. quest," is not insisied on by our 8. By this is not meant that a codi- § 7 THE LAW OF WILLS. [PAKT I. derived from the Latin word codicillus, which is a diminutive of codex, and literally imports a little code or writing — a little will. Codicils came into our law from the Roman jurisprudence, but with an earlier significance quite different from that which modem usage attaches to them.^ As Blackstone has observed, the codicil is tlie testator's addition annexed to, and t-o be taken as part of the testament ; " being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former dispositions of the testator."^ He adds that the codicil may be either written or nuncupative.^ In short, the codicil is part of the will, and the last will and codicils constitute one testamentary disposition. But the objection to which all nuncupative instruments are liable applies equally to an oral codicil or an oral will. And under our modern rules of legislation the codicil or any later testament should be not only expressed in writing but executed with the same solemnity as an original instrument.^ Hence, as codicilg are apt at all times to cumber the construction of testamentary intent as well as increase the cost and trouble of probate, a testator of sound and vigorous mind, whose ideas of disposition are simple, will generally do well to destroy the earlier will and make a clean one, as his testamentary intention changes, in preference to tacking amendments one after another to the instrument first executed. cil is necossarily on the same 'ilieet same effect; namely, as though it of paper with the original will or an- were a will which appointed no exe- nexed to it in any way. It may bo a cutor. Swinb. pt. 1, § 5. But our separate instrument, like any will of true modern definition is as stated in later execution. the text. See Bouv. Diet. '• Codicil." 9. In the Roman civil law, " codi- 1. 2 Bl. Com. 500; Godolph. p. 1, cil " is defined as an act which con- c. 1, § 3. tains dispositions of property in 2. 2 Bl. Com. 500. And see 1 prospect of death without the insti- Wms. Exrs. 8. tution of an heir or executor. 3. 4 Kent Com. 531; Tilden v. Til- Doniat, Civil Lnw, p. ii. b. iv. tit. den, 13 Cray, 103; Fuller v. Honker, 1. § 1. So, too, early English writ- 2 Ves. Sen. 242. See, furtlier, as to er.s upon wills, Swinburne, for in- Codicils, post. fitanfp, diTined a colicil to much the I'AET I.] INTRODUCTION. § 9 § 8. " Will " includes " Codicil." The word " will " being the generic, legal provisions relating to wills, such as their execution and personal capacity, should be understood in general to embrace codicils. And in our modern legislation upon wills, that no doubt may remain on this point, it is not uncommonly stated expressly that the word " will " shall include " codicils."* § 9. Testaments in the Civil Law ; Special Kinds ; Mystic, Holo- graph, etc. Besides the nuncupative testament, the civil law still recognizes various kinds, derived for the most part from the Roman code, which have no footing in the jurisprudence of England and the United States. Two species, however, deserve a mention, which French and Spanish founders introduced into the system of Louisiana before its incorporation with the American Union. One. is the " mystic testament," which consists principally in enclosing one's instrument of disposition in an envelope and sealing it in presence of witnesses.^ The other is the " holographic (or olo- graphic) testament," which is written wholly by the testator him- self. Under our later codes this must be entirely written, dated, and signed by the testator's own hand ; and being so prepared, it speaks for itself in some jurisdictions as declaring his last will, so as to be suJbject to no formality of witnesses; ^ and in any case it affords strong proof of genuineness. 4. Bayley v. Bailey, 5 Cush. 245. 5. La. Civ. Code. art. 1577-1580; 5 And see the English statute of wills Mart. La. 182. The envelope may be (1 Vict. c. 26) to the effect that in simply closed with mucilage. 48 La. interpretation the word "will" shall Ann. 236; 19 So. 275. extend to a testament, and to a codi- 6. La. Civ. Code, art. 1581; Wil- cil, and to an appointment by will bourn v. Shell, 59 Miss. 205; 42 Am. or by writing in the nature of a will Rep. 363. And see Bouv. Diet, in exercise of a power; also to cer- "Testament;" Part III. post; 4 tain testamentary guardianships Kent Com. 519, 520. stated, and " to any other testamen- tary disposition." § 11 THE LAW OF WILLS. [pART T. § 10. When a Will or Testament comes into Force; Revocation and Alteration. A will, though executed in one's lifetime, acquires no force as such until after the death of the testator. It may, therefore, be revoked or cancelled as well as altered by the testator at any time during his life, provided the intent and the suitable act concur.^ For every testament is consummated by death, and until he dies, the will of a testator is ambulatory.^ It follows that if the testator leave two or more inconsistent testaments behind him, the last executed shall prevail to the exclusion of every earlier one.^ This ambulatory quality of a will has been often pointed out as its prominent characteristic, distinguishing it, in fact, from ordinary dispositions by a living person's deed, which might, in- deed, postpone beneficial possession or even a vesting until the death of the disposer, and yet would produce such postponement only by its express terms under an irrevocable instrument.^ § 11. Effect of a Subsequent Statute upon One's Will. " A will," it is said, " does not take eifect, nor are there any rights acquired under it, until the death of the testator ; and its 7. See Revocation of Wills, etc., lish Wills Act: "Every will shall §§ 380-450, post. be construed, with reference to the 8. '■ A'am omne testamentum morte real estate and personal estate com- consummatuni est; et voluntas testa- prised in it, to speak and take ef- ioris est ambulatoria usque ad mor- feet as if it had been executed im- tem." Co, Litt. 112; 2 Bl. Com. 502. mediately before the death of the " For where a testament is, there testator, unless a contrary intention must also of necessity be the death shall appear by the will." Act 1 of tlie testator. For a testament is of Vict. c. 2G, § 24 ; 2 Jarm. Wills, force after men are dead: otherwise 854. it is of no strength at all while the 9. Litt. § 168; 2 Bl. Com. 502. testator liveth." Hebrews ix. vs. 16, 1. 1 Jarm. Wills, 17; Brown v. 17. A will is ambulatory even Betts, 9 Cow. 208; Wait v. Belding, though expressed as " final " or 24 Pick. 136. Even though a will "last." Wallace v. Wallace, 137 should in terms be made irrevocable, N. Y. S. 43. the testator may revoke it. 8 Co. See, too, the language of tlie Eng- 82a. PART I.] INTEODUCTION. 11 construction and validity depend upon tJie law as it then stands." Hence it follows that " a statute passed after the making of a will, but before the death of the testator, by which the law is changed, takes effect upon the will." ^ Nevertheless, a retroactive effect should not be given by such later statute to an earlier will as to render, by the mere force of a new rule of construction, a different disposition imder that will from what the testator obviously intended ; ^ especially if the legislation manifested no retroactive intention. On the other hand, however it may be as to the legal operation of a valid will upon one's property, the rule is that if the testator was, at the date of making the will, without testamentary capacity, as in the case of a married woman, a subsequent statute which 2. Eastman, J., in Wakefield v. Phelps, 37 N. H. 295. This state- ment appears inaccurate; though the decision was simply, in effect, to render the wife's devise of real estate to her husband inoperative, where a later act, in force at her de- cease, pronounced her incapable of devising land to her husband, while at the time of making the devise the statute recognized her general capac- ity. After-acquired lands will pass, if such clearly appears to have been the testator's intention, under a local statute to this effect, which was en- acted after the will was made though before the testator's death. Gush- ing V. Aylwin, 12 Met. 169; Bishop V. Bishop, 4 Hill, 138; Smith v. Ed- rington, 8 Cr. 66. See preceding sec- tion. 102 N. Y. S. 80S; Kopmeier Re, 89 N. W. 134, 113 Wis. 233. 3. This statement appears to recon- cile Carroll v. Carroll, 16 How. 275 (in construction of the Maryland statute concerning after-acquired lands) with the cases cited in the preceding note. See language of Mr. Justice Curtis, ib. 283, distinguish- ing Cushing V. Aylwin. supra, and the broader terms of the Massachu- setts statute; also Smith v. Edring- ton, supra. And see 15 Conn. 274; Battle V. Speight, 9 Ired. 288; Mul- lock V. Sonder, 5 W. & S. 198. Wills are governed as to their operation upon after-acquired lands by the law in force at the date of execution and not by that in force at the testator's decease. Gable v. Daub, 40 Penn. St. 217. As to the husband's interest in a legacy to his wife, the rule of Wake- field V. Phelps, supra, is in New Hampshire applied in Perkins v. George, 45 N. H. 453. A husband whose wife dies after the passage of a statute extending one's right to take real estate in fee as a surviving spouse, cannot deprive him of such right by her will made previously, to which he has not assented. John- son V. Williams, 152 Mass. 414, 25 N. E. 611. § 13 THE LAW OF WILLS. [PAET I. comes into force and remains so at tlie time of her death will not turn the invalid testament into a valid one/ And in general the legality of the execution of a will should be judged of by the law ^s it was when it was executed, and not as it was at the death of the testator.^ § 12. Origin of Wills; Natural Law of Succession. A few words as to the origin of wills are here appropriate. Upon this subject history preserves, indeed, but very little. Writers upon natural law, it is true, conceive of a primitive state of society, where, property vesting by common consent in the individual under the right of occupancy, that right, nevertheless, continued in the occupier only while he lived. But strife and confusion at the awful moment of religious rites and burial must have seemed intolerable even to barbarians of the basest type ; and decency soon framed a system by which the title of the dead proprietor descended at once, and with it, most probably, the responsible management of the funeral.^ For the progress of individual ownership and 4. Kurtz V. Saylor, 20 Penn. St. this course must be observed or the 209. See also Dwarris Stat. 685, will is invalid, notwithstanding a 179 Penn. St. 580, 57 Am. St. Rep. subsequent change of the statute. 516, 36 A. 344. Lane's Appeal, 57 Conn. 182. In 5. Mullen v. McKelvy, 5 Watts. this last mentioned case the whole 399; Prec. Ch. 77; Amb. 550; 3 Atk. subject is discussed, and, while the 551. rule of our text is sustained, it is A statute which changes the rules admitted that the few decisions ot of evidence relating to the execution American courts are not harmonious; of wills has no retrospective opera- South Carolina and Georgia seeming tion; and a will must be proved as to take a contrary view. 3 McCord, the law required at the date of its 491; 43 Geo. 142. Of course, if the execution. Giddings v. Turgeon, 58 local statute expressly reserves the Vt. 106. As where a will at the date validity of former wills, the point is of execution was invalid if one of the clear. 1 Bradf. (N. Y.) 252. tliree witnesses was husband of a 6. Puffcndorf Law of Nations, legatee, and the legislature .after- Book 4, c. 10; 2 Bl. Com. 490. "The ■wards changed the rule. lb. Whore law of very many societies has, there- a statute in force when the will was fore, given to the proprietor a right exffiiled nquired witne^se?? to sub- of continuing his property after his ficribi; in tlie presence of eacli other, death, in such persons as lie shall 10 PART I.] INTRODUCTION. § 13 succession, as fundamental ideas of primitive society contrasted with occupancy for a lifetime, we may well conceive of these three stages: (1) Appropriation by government, that is to say, by the strongest survivor surrounding the deceased, whether as trustee for the common society, or rather in the semblance of an armed <*hieftain grasping for himself and his line, (2) The promulgation of a general scheme by that government or that chieftain in obed- ience to the profound affections of the individuals, whereby the inheritance vested in a member or members of the decedent's own family. (3) RecogTiition of a right in the individual owner to dispose of the title at his own choice and in variance, if need be, of the usual rules of inheritance. In this last recognition by society lies the sanction of a will ; and this sanction reaches its refinement when we find the dead proprietor's wishes so far respected by the government, by his fellow-men, that he may safely xiisinherit, or transmit to strangers, or provide for the default of his own kindred, or bestow at pleasure upon selected objects of -charity, by the formal declaration of his last wishes to that effect. And yet, as leading up to such a conclusion, we should remark, that from the moment that the doctrine and practice of transfers of property inter vivos by way of gift, sale, or bailment became •established, men's minds were prepared for recognizing a trans- mission of title beyond the span of any occupant's own life. If, moreover, the owner could not lawfully make a testamentary dis- position, he might, when dying, with full opportunity to do so, ■divide his property among those who stood at his bedside, and thus dispose of it sui juris, without a strict succession at all. § 13. Origin of Wills; Historical Views of Succession. But, setting aside theories of social progress, whatever authen- name; and in defect of such appoint- sons." 2 Bl. Com. 490. The former ment or nomination, or where no method of acquiring, as the learned nomination is permitted, the law of commentator adds, is called a testa- *very society has directed the goods ment, the latter an administration, to be vested in certain particular in- lb. dividuals, exclusive of all other per- 11 § 13 THE LAW OF WILLS. [PAET I. tic history teaches us of the origin of the human race, confirms the opinion that the practice of allowing the owner of property to direct its destination after his death, or at least of imposing general rules of inheritance, is coeval with civilization itself and so close, in fact, upon the origin of property and property rights, as not to be essen- tially separated in point of antiquity. To take the Sacred Writ- ings for instance. The first rule was exercised by a founder over his own family. The patriarch gave his dying blessing, and, as it would appear, transmitted his own property to his descendants, regulating the inheritance at discretion ; at all events, he was familiar with some scheme of inheritance which provided, not only for children or kindred, but for the contingency of their failure.^ Abraham, our earliest type of the prosperous father of a family, amassing property in the midst of a civilized and peaceful society, who journeyed to Egypt, who grew very rich in cattle, servants, silver and gold, who paid out his thousand pieces of silver for a piece of land, and was respected far and wide as a man of wealth, is seen considering, while childless, who would be his heir, and after rearing children late in life and marrying more than once, giving all that he had to his oldest legitimate son, Isaac, at his death, and sending the sons of his concubines away with gifts. Isaac gives his death-bed blessing to the younger son by an error which he refuses, upon discovering it, to retract.^ Jacob bequeaths to his son Joseph a portion of his inheritance double to that of his brethren.^ All of these seem to afford instances of death-bed dis- position at patriarchal discretion ; though Blackstone and other writers fasten upon that of Jacob alone as the more authentic, and perhaps the earliest recorded instance of the early use of testaments.^ That verbal testaments preceded written ones is alto- 7. Gen. cs. xiii, xv, xxv. upon Gen. c. xv, and alluding to the 8. Gen. c. xxvii. This indicates fanciful relation, by Eusebius and Jiow much solemnity was attached others, of Noah's testament, made to the death-bed utterances by the in loriting, and witnessed under his patriarch who made them. seal, whereby he disposed of the wliole 9. Gen. c. xlviii. world. See Gen. c. x. 1. 2 Hi. Com. 400, 491, commenting 12 PART I.] INTRODUCTION. § 13 gether likely. And this very word " testament," which came down to us with the most sacred of associations, means, as a New Testa- ment writer argues, not a mere covenant of God with the living, but something symbolical, which, like all testaments, requires death or the dedication of blood, to give it effect.^ If wc turn to the Vedas, the oldest authority for the religious and social institutions of the Hindoos, the result is not different. Whether these ancient hymns, imperfect as must be their testi- mony, offer plain instances of a disposition by testament, Sans- crit scholarship must determine; but certainly they depict a society where laws of succession as well as of transfer inter vivos are in full force, and the male issue (not wholly perhaps excluding the daughters) inherit and at the same time perform the funeral rites.^ Homer's Iliad, once more, furnishes fair illustrations of oral testament and bequest, as well as of inheritance,* Respect for fundamental rules of inheritance may, nevertheless, have prevailed in various countries and ages as against the free license of a testamentary disposition. " Solon, " observes Black- stone, " was the first legislator that introduced wills into Athens " ; and he adds that in many other parts of Greece they were totally discountenanced ; that in Rome they were unknown till the laws of the Twelve Tables were compiled ; and that among the northern nations, particularly among the Germans, testaments were not re- ceived in use.^ Whether all this exclusion was absolute or only partial, and whether there might not have been peraiitted in some of these excepted instances a testamentary disposition of a certain sort, approximating a death-bed gift, especially if just in itself, i^ is not our province to inquire. Certainly the practice of trans- ferring what one owns so as to take effect by one's direction after death seems so reasonable and natural of itself that we may well 2. Hebrews ix, vs. 16-lS. 5. 2 Bl. Com. 491; Plutarclrs So- 3. 2 Wilson's Rig-Veda Sanliita, Ion; Pott. Antiq. 1. 4, c. 15; Inst. 2, xvii. 22, 1; Tacitus De Mor. Germ. 21, 4. See, e. g., as to Patroclus, Iliad, cited ib. 23d book, lines 90-93, 250-255, Chap- man's translation. 13 § 14 THE LAW OF WILLS. [pAET I. conceive that it has existed always and everywhere in civilized society, with rare exceptions ; though it would not be strange if rude and property-despising people, like the ancient Germans and the Spartans under Lycurgus, condemned it.® But so far as the operation of wills as such and in disregard of civil rules of inheri- tance is concerned, we may agree with the standard commentator of English law, that even where the individual's right to make a will is permitted by law, " it is subjected to different formalities and restrictions in almost every nation under heaven."' We should add, however, that the formalities and restrictions which refined nations still impose upon this individual right are placed there chiefly in order to prevent a testator from unjustly discriminating against those of his own immediate family, or else for warding off in the courts a false interpretation as to what his last will really was ; in either case fairly but not violently upholding the general laws of inheritance against unnatural caprice and fraud. § 14. Origin of Wills in England. In England the individual right of testamentary disposition has been recognized from the earliest times ; and a passage in the old law before the Conquest indicates that a Saxon nobleman would hardly have died intestate unless carelessness or sudden death pre- vente-d him from making his will.^ Nevertheless, there is good reason to believe that the right of inheritance was firmly established in our mother-country earlier than that of disposition by will ; tliat until times comparatively modem, one's testamentary right remained obstructed by certain arbitrary rules of distribution, as- 6. " Tlie gpnoral int(>rpsts of soci- domestic afTections, has sufficiently ety, in its career of wealtli and civi- guarded against any great abuse of lization, seem to require that every the power of testamentary disposi- man should have the free enjoyment tion, hy connecting our hopes and and disposition of his own property; wishes witli the fortunes of our pos- for it furnislics one of t!ie strong st terity." 2 Kent Com. 502. motives to industry and economy. 7. 2 VA. Com. 491. Tlio law of our nature, hy placing us 8. 2 1?1. Com. 491, citing, LL. uiid sible to a legatee, under general expressions of the will consistent with that intent, and that the testament may at all events assume to dispose of it.^ To the devise of after-acquired real estate, how- ever, technical objections have long been interposed by the courts on the theory of a seisin ; for the testator, it was said, ought to be seised of the estate when he makes a will, and so on through all the intervening period to the date of his death ; otherwise, the estate would not be supported.^ This rule of the English law was recognized in most parts of the United States until times compara- tively recent. But legislation has at length changed it in various States, for one more flexible and consonant to testamentary intent ; namely, that one's will may operate upon his after-acquired real estate whenever such was his obvious intention.^ Parliament too 9. Wait V. Belding, 24 Pick. 136; Loveren v. Lamprey, 2 Fost. (N. H.) 434; McNaughton v. McNaughton, 34 N. Y. 201; Nichols v. Allen, 87 Tenn. 131, 9 S. W. 430; Laughlin v. Noreross, 53 A. 834, 97 Me. 33 (in- surance policy taken out after mak- ing the will), Kennady v. Sinnott, 21 S. W. 233, 179 U. S. 606, 38 L. Ed. 339; Harlan v. Harlan, 139 S. W. 1063, 144 Ky. 817. 1. Redf. Wills, 387; 1 Jarm. Wills, 5th Am. Ed. 51. We have seen that a devise was formerly considered a sort of appointment of particular lands to a particular devisee, supra, § 3. It followed, that, unlike a will of personal property, after-acquired lands would not pass. Wind v. Jekyl, 1 P. Wms. 575; Minuse v. Cox, 5 Johns. Ch. 551; Hays v. Jack- son, 6 Mass. 149. 2. 1 Jarm. WMWs, 51, 326; 2 Redf. Wills, 388; 1 Wms. Exrs. 6, and Per- kins's note; Stimson's Am. Stat, Law, § 2634. So strictly was this rule formerly applied that the plain intention of Mr. Girard's will was thwarted. Girard v. City of Phila- delphia, 4 Rawle, 323. And if a mortgagee of land who had made a will, afterwards foreclosed or per- fected his title by taking an absolute deed of the premises, a new will or codicil became needful. Brighara v. Winchester, 1 Met. 390; 5 Pick. 112; 16 Am. Dec. 377. For the statutes of the diflferent States relating to after-acquired property, see 1 Wms. Exrs. 6th Am. Ed. 6, Perkins's note; 1 Jarm. Wills, 5th Am. Ed. 326, Bigelow's note; Stimson's Am. Stat. Law, § 2634. The governing test thus becomes one of the testator's actual intention, as shown by the will. See on this point Kimball v. Ellison, 128 Mass. 41; Roney v. Stiltz, 5 Whart. 381; Dick- erson's Appeal, 55 Conn. 223; Decker v. Decker, 121 111. 341, 12 N. E. 750; Hardenbergh v. Ray, 151 U. S. 112, 38 L. Ed. 93; 90 P. 810; Tarrant v. Core, 56 S. E. 228, 106 Va. 161; Williams v. Brice, 51 A. 376, 201 35 § 30 THE LAW OF WILLS. [pART L has similarly altered the nile in England.^ And thus does the distinction of principle, once sharply drawn between after-acquired real and personal property under a testamentary disposition, grad- ually disappear. § 29a. The Same Subject: Property held jointly, etc.; Partners. Ownership of property jointly or in common or otherwise must be respected. Thus, a partner cannot bequeath his interest in any specific article belonging to the firm, since each partner has a joint interest in the whole partnership property, but not a several inter- est in any particular part of it.* § 30. Scope of Investigation to be pursued. Having set forth the nature and origin of testamentary dispo- sition, we now proceed to treat in detail of the law of wills, that is to say, of individual testaments. In our next volume we shall discuss the settlement of estates, from the common standpoint of testacy and intestacy ; setting forth and distinguishing the general functions of those whose duty it is to administer, to collect, man- age, settle and distribute. Upon comity and the conflict of laws in either connection we shall dwell at sufficient length ; upon the appointment, too, of executors as well as administrators ; upon the probate of wills, the qualification, the giving of bonds, the issue of letters testamentary or of administration ; upon assets and the inventory- ; upon the general powers, duties and liabilities of those thus chosen to wind up the deceased person's affairs ; upon pay- ments and distribution, whether under a will or where there was Penn. 595; Bearing v. Selvey, 40 S. tor may be entitled to at the time' of E. 478, 50 W. Va. 4. his death, notwithstanding he may 3. See Statute 1 Vict. c. 26, § 3, become entitled to the same subse- op<'rating on English wills made quontly to the execution of his will, sinee 1837. The power of tcstamen- 1 Wms. Exrs. preface; appx. tary disptsition under the celebrated 4. Spencer v. Spencer, 79 S. E. 291, " Wills Act " is extended to all such 163 N. C. 83. real and i)ersonal estate as tlie testa- 36 PART I.] INTKODUCTIOX. § 30a none ; and upon the accounting and allowances of executors and administrators." The present volume, though embracing necessarily much post mortem litigation, regards rather the living than the deceased owner of property ; and it views him at the point of determining! tr- frame and reduce to proper form a final testamentary disposi- tion of his estate for the just guidance of those concerned in its settlement ; to make a solemn charter which shall go into effect when he is no longer of this world, and by which his surviving family, kindred, friends, fellow-citizens and posterity shall hold him in remembrance. To the intended testacy of the individual we shall confine our investigation for the present volume ; and the main subjects for extended analysis here concern capacity and in- capacity to make a will, the validity and formal requisites of wills, what constitutes revocation, revival and republication, and the gen- eral principles to be applied in testamentary construction. These, together with a few practical forms and suggestions, should amply suffice for an elementary treatise upon this interesting branch of the law.^ § 30a. Legal Principles and Illustrations. The legal principles to be discussed or considered under the head of Wills are comparatively few, simple and well settled ; but the illustrations in our reports, where those principles are applied, are very numerous ; and this is because litigation is earnestly and closely pressed by interested survivors over the facts presented in individual cases of testamentary presentation. Statutes, moreover, change many rules. 5. Schoul. Exrs. & Admrs. passim ecutor, the nature of legacies or gifts (Vol. II). by testament, etc., see Executors and 6. For the probate and establish- Administrators (Volume II of the ment of wills, the functions of an ex- present work, 1915). 37 PART II. oapaoit:^ and incapacity to make a will. CHAPTER I. TESTAMENTARY CAPACITY IN GENERAL. § 31. What Persons may make a Will : General Rule. As a general rule, any person of sound mind, who has reached the age of discretion, and is under no constraint of will, may br; pronounced capable of making a testamentary disposition of prop- erty in confonnity with the prescribed forms of law.^ This funda- mental maxim holds universally good at the present day in Eng- land and the United States. Whatever exceptions exist will appear in the course of the discussion upon which we now enter ; and those not consistent with the maxim itself we shall confine to the present chapter. § 32. Measure of Capacity the Same as to Property Real or Personal. The measure of capacity requisite for making a valid will does not materially differ, whether the disposition relates to real or to personal property, or embraces both kinds. If the testator at the time of making the disposition has the sound mind and free will which the foregoing rule embodies, the law is satisfied, whatever species of property that disposition may include ; otherwise it is not satisfied.^ There is reason, however, for holding that one of weak or failing intellect might grasp in his mind and memory the arithmetic of a 1. Cf. Swinb. pt. 2, § 1. of the goods, he could not be of non- 2. 6 Co. 23; Sloan v. Maxwell, 2 sane memory at the time of the mak- Green Ch. 563, 566. It is said in 6 ing of the will of the lands, both be- Co. 23 : " If he were of sane memory ing made at one and the same in- at the time of making the testament stant." 39 §33 THE LAW OF WILLS. [pAKT II. simple and small estate wliere that of a vast and complex one would tax him too severely f whicli distinction, as applied to the credit or discredit of the testament, involves properly a consideration of the individual's business habits and experience while in his normal condition.* § 33. Whether Crime disqualifies from making a Will. English writers have made crime an exception to the rule of tes- tamentary capacity in various instances. Indeed, the old common law with great severity inflicted the penalty of incapacity upon many classes of so-called guilty persons ; not so much tO' humiliate them, we may suppose, as for enabling the Crown the more surely to seize upon their property and utterly confiscate it. Swinburne enumerated among those who were thus legally disqualified in his day, slaves, villeins, captives, prisoners, traitors, felons, heretics, apostates, manifest usurers, incestuous persons, libellers, suicides, outlawed persons, those excommunicated and prodigals ; a promis- cuous list in which wrong-doers, unfortunates, and those of cour- ageous conscience are found unhappily blended.^ Scarcely any of these disqualifications now exist ; for in the latest edition of Jar- man it is shown not only that treason, felony punished by death, and suicide long remained on the list because of a legal forfeiture following conviction which legislation had gradually restricted, but that a statute of 1870 sweeps away all attainder, corruption of blood and escheat, in such instances, and provides in peculiar terms for a beneficial administration of the convict's property instead.® Forfeiture consequent upon outlawry appears, in fine, to be the last remnant of the old law of criminal disqualification.'^ 3. Slieldon v. Dow, 1 Dcmarest, and ca, 2S9. Redfield (while admitting that tliere 4. 2 Bl. Com. 3 74, 375. is an unbroken array of authorities 5. f^iipra, § 15. 1 .Tarm. Wills, 33, against him) objects on principle to obsyrvcs that custom in some places this mode of computing the period 48 ■CHAP. II.] INCAPACITY OF INFANTS. § 41 woiild operate as a valid disposition of chattels without and even against the consent of parent or guardian.^ Likewise, the infant's express approval of a will made earlier and during the period of nurture would establish it as strong and effectual^ if given after accomplishing this age of testamentary capacity.^ A ratification, so to speak, similar to that by which one on reaching full age validates the contracts of minority/ seems here to operate; yet the mere circumstance of an infant having lived some time after the age when he became capable of making his will, should not without republication (so say these older books) give validity to one made during his incapacity." Indeed, this indulgence of a ratification at all transcends the bounds of good sense ; and the better principle for modern times, under statutes which insist upon written wills and a fornial execution, is that a will made during the age of incapacity can only be rendered valid at one's capable age by a republication with all the usual formalities. from a person's birth, so that in legal eflFect capacity is sometimes car- ried back " two full days beyond the real date." 1 Redf. Wills, 20', 21. The objection is not without force, so far as giving validity to wills made far back in infancy, is con- cerned; for the greater the restric- tions judicial construction may place upon such wills the better. Yet there can be no question that the legal date of reaching majority ought to be clearly and definitely established by the law's computation, and if so, the difference of about a day for adjust- ing the rights and burdens of full capacity to the new adult appears by comparison of very little consequence. The present rule for computing one's majority is convenient enough so long as it remains unshaken. But the usual mode of computing the period under a will for the per- formance of some duty (aside from questions relating to one's age) ap- pears to view the anniversary from the day of computation and not the day previous. The day of a testa- tor's death is excluded from the reckoning of such a period. And doubtless the rule in all popular cele- brations of an anniversary differs from this common law reckoning of one's majority. See 1 Redf. lb. 8. Swinb. pt. 2, § 3, pi. 6; Bac. Abr. Wills, B. 1. 9. 1 Sid. 162; Swinb. pt. 2, § 2, pi. 7. 1. Schoul. Dom. Rel. 5th Ed. §§ 432-448. 2. 1 Sid. 162; Swinb. pt. 2, § 2, pi. 5; 1 Wms. Exrs. 17; 1 Redf. Wills, 18, 19. But cf. the inaccurate language of 1 Jarm. 33, citing Hinck- lev V. Simmons, 4 Ves. 160. 49 § 43 LAW OF WILLS. [pART II. § 42. Infants' Will Invalid, where Want of Discretion, etc., is shown. While tlie will thus executed could not be objected to merely because the testator was a minor, yet if the testator was shown not to be of sufficient discretion, that would overthrow the testament, as Blackstone says, whether his age were fourteen or four and twenty.^ Xor would indiscretion alone be a natural objection to so young a person's will, but the undue constraint and influence besides, which adults seeking to regulate his disposition might exert upon him. Notwithstanding all this, there is an instance reported in which the will of a school-boy only sixteen years old in favor of his schoolmaster was admitted to probate in the Eng- lish ecclesiastical courts during the eighteenth century where no evidence of fraud or undue influence or constraint was shown.* § 43. Modern Legislation treats the Wills of Infants with Dis- favor. Modern legislation treats the wills of all infants, male or fe- male, with obvious disfavor. Thus, the English statute 1 Vict. c. 26, expressly declares that " no will made by any person under the age of twenty-one years shall be valid." ^ The latest enact- ments of a majority of American States are to the same purport, establishing the age of twenty-one as that at which a person of either sex ceases to be disqualified from making a will either of real or personal estate; and among these States are Maine, New Hampshire, Massachusetts, New Jersey, Pennsylvania, North and South Carolina, Florida, Mississippi, Texas, Ohio, Indiana, Kan- sas, Kentucky, Michigan, Minnesota, and Nebraska.^ But other States vary in provisions concerning the testamentary capacity of infants. In California and Connecticut, for instance, eighteen years is taken as the testamentary age for both males and females ; 3. 2 Bl. Com. 497; Deanc v. Littk- 5. See 1 Vict. c. 26, § 7, cited 1 field, 1 Pick. 243. Wms. Exrs. preface, and 2 Jarni. 4. Arnold v. Earle, Cas. temp. Lee, Wills; appendix. 529; Ms8. June 5, 1758; 1 Wms. 6. 4 Kent Com. 506; 1 Jarra. 32, KxrH. 16. American note. 50 CHAP, li.^ INCAPACITY OF iNFANTa. § 44: while various codes adopt a still earlier standard of discretion, distinguishing, however, in some instances between males and fe- males, or even between females married and unmaiTied. In New York, by a strange example, the age for making a will of personalty is eighteen in males and sixteen in females ; nor is this the only State or the only quarter of the Union where the line is drawn between the kinds of property, so that an infant's personalty but not his real estate may be disposed of by. testament before he reaches the age of twenty-one ; ^ an antiquated distinction, it would seem, when the immense expansion of wealth in personalty during the present century is considered. § 44. Infant's Appointment of a Testamentary Guardian. It is worth observing here that the policy of permitting an infant to create a testamentary guardianship has changed correspondingly within the last two hundred years. Under the statute of 12 Car. II. c. 24, which instituted testamentary guardianship, any father, whether infant or adult, might by last will or testament dispose of the custody and tuition of his child, so as to carry over the entire 7. States as wide apart as Rhode most matters easily influenced. Island, New York, Virginia, Ala- should, it is held, be subjected to bama, Missouri, and Oregon follow close scrutiny, where such guardian this latter principle in their codes. took an active part in its execution. For thees statutes (which are cited Seiter v. Straub, 1 Demarest (N. Y. ) in 1 Jarm. Wills, 32, Bigelow's note; 364. This case bears strongly against 4 Kent Com. 506), see more particu- the policy of the New York Code, in larly the language of the several permitting wills of any kind to stand, Codes, where minute differences of when made by persons so young. An expression will be found, and where infant in New York cannot, of course, legislation is liable to change the devise his land. 47 Hun, 109. As local rule any year. to the Connecticut rule permitting a Scarcely any American cases of valid will at eighteen, see 64 Conn, consequence have arisen on this sub- 344, 30 A. 55. And see Banks v. ject. See Moore v. Moore, 23 Tex. Sherrod, 52 Ala. 267; Holzman v. 637; 7 Lea. 240. A will in favor of Wager, 79 A. 205, 114 Md. 222 (a her guardian, made by a female ward leasehold interest), of sixteen, in poor health, and in 51 § -i-i LAW OF WILLS. [pART IL management of that child's property, during its minority or for any less period prescribed.^ But since the statute of 1 Vict. c. 26, an infant father cannot at English law create a testamentary guardianship at all.* 8. Schoul. Dom. Rel. § 287. writing in the nature of a will in ex- 9. lb. See language of § 1 of Stat. ercise of a power, to the appointment 1 Vict. c. 26, to the effect that the of testamentary guardians and to word " will " under that act shall ex- any other testamentary disposition, tend to an appointment by will or by 52 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 45 . . ■ - CHAPTER III. INCAPACITY OF MARRIED WOMEN. § 45. Incapacity at Common Law arising from Coverture. The incapacity of married women to make wills has its root in our common-law principle of coverture, by which husband and wife were treated as one person in such a sense that the woman took her place under the cover or protection of her lord ; her rights not less than her obligations becoming suspended, for the better harmony and peace of the marriage state, while the husband ex- ercised an undisputed sway as head of his household.^ By the fundamental terms of their nuptial union, the husband remained capable of making his own will, though the wife if surviving could claim her dower, or life-thirds interest, in his real estate. But the wife, on the other hand, parted with all control over her own property while coverture lasted, presented her spouse outright or conditionally with the whole of her personal property, and con- ferred upon him the usufruct during marriage of her real estate, which was enlarged, if a child was born alive, to a right by curtesy lasting for his whole lifetime.^ With the property brought into the marriage state thus parcelled out by the common law, and a surviving husband entitled, moreover, to administer upon the estate of his deceased wife for his own benefit and recover her outstand- ing personal property to his own use and enjoyment,^ it is not strange that the female spouse was under the disability of making her own will. For the law itself regulated the descent of her real estate, excepting her expressly from the Statute of Wills, 34 and 35 Hen. VIII. c. 5 ; * while as to her goods and chattels, her per- sonalty, any will she might be declared capable of making, would necessarily be in derogation of the rights of her surviving husband. 1. Schoul. Hus. & Wife, § 54; 1 Bl. 409; Schoul. Exrs. & Admrs. §§ 1098, Com. 442, 445. 1106, 1126 (Vol. II). 2. Schoul. Hus. & Wife, § 86; 1 Bl. 4. See 2 Bl. Com. 497, 498; 1 Jarm. Com. 442-445; 2 Kent Com. 130-143. Wills, 32; supra, pt. 1. This makes 3. Schoul. Hus. & Wife, §§ 405- a married woman utterly incapable 53 § 46 LAW OF WILLS. [pAKT II. A married woman, therefore, could not make a valid will. Her incapacity in this respect was not founded in contempt of her dis- cretion; nor, save, perhaps, for the subtle marital influence which husbands of strong character are known to exert, in any legal denial of a capacity to exercise free will ; but rather because of those disabilities of coverture which general policy imposed and in order that the husband's marital control of her property and right of succession might be preserved unimpaired. As maid or widow, any woman who had turned her majority was as free to dispose of property by a testament as man himself.^ § 46. Marriage a Revocation. So, too, the marriage of a feme sole was treated by the common law as so entirely changing her condition in life and relations as t(v work ipso facto a revocation of any will she might have executed v/hile single.® And such, too, was the efl:ect, even where she sur- vived her husband and was thus restored to the condition of single woman ; for his death did not revive such a will.^ But marriage had no such summary operation upon a man's will ; as his right to hold property and dispose of it by testament was not seriously impaired by his nuptials, neither did those nuptials revoke the will he had previously made.* of devising lands, under an English fers materially from that of infancy, statute which continued in force idiocy, or lunacy. It does not arise when the American colonies were from natural infirmity, but is the planted. But cf. Wagner v. Ellis, 7 creature of civil policy." It may I'enn. St. 413, which lays stress consequently be dispensed with in rather ui>on the undoubted circum- various instances; unlike the other stance that of the wife's lands (ex- disabilities referred to. 1 Jarm. 38. cept for curtesy) a surviving husband 6. 4 Co. Rep. 60, 61; Hodsden v. had in general no legal disposition, Lloyd, 2 Bro. C. C. 534. since they descended to her heirs. 7. Cotter v. Layer, 2 P. Wms. 623; A wife's disqualification to devise Garrett v. Dabney, 27 Miss. 335; existed at common law prior to the Kurtz v. Saylor, 20 Penn. St. 205. statute of 34 & 35 Plen. VIII. c. 5, And see Willock v. Noblo, L. R. 7 H. which wa.s explanatory of statute 32 L. 580, 597. Hen. VriT. 0. 1. 8. Schoul. Hus. &, Wife, §§ 442, 5. " 'I'lic disability of coverture dif- 457. Tliis subject of revocation by a 54 CHAP. 111.] INCAPACITY OF MARRIED WOMEN. § 43 § 47. Modern Changes effected by Courts and Legislation as to Wife's Incapacity. Maxims of equity, together with the married women's legisla- tion of the last half century, have, however, as we shall show in the course of this chapter, made immense inroad into this early doctrine of the wife's incapacity for testamentary disposition ; so that we find the female spouse, in these days, not only permitted to make a will, with considerable freedom, but relieved almost wholly of the old disabilities which the doetrine of coverture im- posed upon her. Whether for better or worse, the inevitable mod- ern tendency, both in England and throughout the United States, is from conjugal subjection to conjugal independence and the equality of the sexes, so far at least as the marriage relation is left to depend upon human institutions.* § 48. Exceptions to Incapacity; Wife may bequeath with Hus- band's Assent. First of all, various exceptions have been engrafted upon the wife's incapacity to make a will. Thus by the English law the wife may make a valid will of personal property, with the consent of her husband. But this is upon the condition that he survives her, and does not elect, after her death, to disaffirm his consent already given. The will of a married woman, when presented for probate, is treated on the face of it as a mere nullity.^ But where it is alleged to have been made with the assent of the husband, the court assumes jurisdiction. Hence the wife's right in such cases is founded upon the husband's gift or permission, or, as it is said, the waiver of his own right to administer for his own benefit.^ subsequent marriage with regard to 1. Tucker v. Inman, 4 M. & G. either spouse is treated more at 1076; Fane, Ex parte, 16 Sim. 406; length in §§ 424-426. Modern statu- 1 Wms. Exrs. 53. tor}' changes in the rule are there 2. 1 Redf. Wills, 23. 25; Stevens v. pointed out. Bagwell, 15 Ves. 156; 1 Wms. Exrs. 9. See on the general subject 55; Smith, Goods of, 1 Sw. & Tr. 127. Schoul. Hus. & Wife, §§ 7, 184-188. 55 § 48 I-A.W OF WILLS. [part II. And if the husband dies before his wife, her will is void so far as it could have derived any validity from his consent, and fails to operate against her next of kin.^ This exception of a husband's assent is one which chancery and probate courts have asserted, without seeking the aid of any favor- able legislation on this point. And the " license " in question (to borrow Blackstone's term *) is so nearly a gift of his own property that in order to give it effect the husband must have as- sented to the particular will which the wife has made. His gen- eral assent that she may make a will is not deemed sufficient.^ jSTor can he be said to give his assent while ignorant of the con- tents of the will, and unable to ascertain them.^ And the time when this assent on his part shall make the particular will effectual or be withheld so as to defeat it is taken to be, not while the wife was living but after her death, and in fact when the will is offered for probate and the self-sacrifice on his part would be unequivocal. He may therefore revoke an assent given by him to the wife her- self at any time while coverture lasts or after her death before probated But the assent thus requisite on the husband's part may be in- ferred from circumstances subsequent to the coverture. And if after his wife's decease he acts upon the will or once agrees to it, he is not considered at liberty to retract his assent afterwards,. and oppose the probate.^ Such acts even, as expressing gratifica- tion of his wife's selection of an executor, or recommending him 3. lb. And see Willock v. Noble, Mod. 211; Swinb, pt. 2, § 9; Scboul. L. R. 7 H. L. 580, 597, wbicb inti- Hus. & Wife, § 458; 1 Wms. Exrs. mates that though the husband had 54. given Home informal assent to the 8. Brook v. Turner, 2 Mod. 170; will, hi.s decease before the wife de- Maas v. ShelTield, 10 Jur. 417; 1 Rob. privcs such assent of its force. Ecc. 364; 1 Wms. Exrs. 54. Where 4. 2 Bl. Com. 498. the husband is named the executor 5. Rex V. Bettesworth, 2 Stra. 891; and he proves the will generally, his 1 Wms. Exrs. 54. assent will be inferred. Fane. Eof 6. Willock V. Noble, L. K. 7 II. L. parte, 16 Sim. 406. And see (1901) 580. 1 Ch. 24. 7. Brook V. Turner, 2 Mod. 170; 1 56 . - - CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 49 to particular places to procure suitable preparations for the burial, may constitute a conclusive presumption of assent after the wife's death; at least, if the executor has been thereby induced to act under the instrument.^ So, too, it has been decided that the hus- band cannot withdraw his assent before probate, after giving the sole legatee a written memorandum containing his sanction of the will.^ And according to the older books, " a little proof " will suffice to make out the continuance of the husband's assent after- the wife's death where she made the will in pursuance of an ex- press agreement or assent on his part.^ In general the probate of a will is conclusive, both of the capacity of the testator, being a feme covert, to make the will, and of the husband's consent. § 49. The Same Subject; American Rule. The rule is general in this country that the husband may allow his wife to make a valid will of her personal estate, though not of her lands,^ and that his assent cannot be revoked after due pro- bate of the will.'* And, as in English law, such a will may operate,, by way of gift from the husband, so as to deprive him of the right to administer on the wife's estate for his own benefit, so as to vest her personal property of the corporeal or incorporeal sort in others,, which otherwise would have been his owu, or so as to enable some 9. 1 Rfdf. Wills, 24; 1 Mod. 211; § 45) that the husband's assent may 2 Mod. 170. give validity to his wife's testament 1. Maas V. Sheffield, 10 Jur. 417; of land when he is her sole heir 1 Rob. Ecc. 364. thereto under the statute of descents.. 2. Brook V. Turner, 2 Mod. 173, Wagner v. Ellis, 7 Penn. St. 413. 47 where the old law is stated at length; Am. Dec. 515. 1 Wms. Exrs. 54. And see Maas v. 4. Cutter v. Butler, 5 Fost. 343; Sheffield, supra, where husband had Fisher v. Kimball, 17 Vt. 323; witnessed his wife's will when it was Emery v. Neighbor, 2 Halst. 142; executed. George v. Bussing, 15 B. Mon. 558; 3. Local statutes, that for instance Wagner v. Ellis, 7 Penn. St. 413 ; of Massachusetts, will be found to 47 x'^m. Dec. 515; Lee v. Bennett, 31 vary this exception of lands. See Miss. 119; Newlin v. Freeman. 1 post, § 57. So, too, it is held in Ired. Law, 514, 76 S. W^ 542, 25. Pennsylvania (but without reference Ky. Law, 869. to the statute of Henry VIII., supra, 57 § 50 LAW OF WILLS. [pART 11. other person to settle the estate as her executor. The husband's general assent to make a will does not suffice, but must attach to tlie particular testamentary disposition which she may have made.^ This assent of the husband, it is likewise said, should be given at the time the will is proved ; ® and there is authority for the as- sertion that the husband may withdraw his assent at any time be- fore probate.^ But circumstances may establish the surviving hus- band's assent at some earlier date.^ The will should be presented for probate; and the decree of the probate court establishing the will of the married woman concludes its validity and her right to make it.' Where local legislation provides an effectual assent to the wife's will in some other mode, as by the husband's writing, or imposes some other variation of the doctrine above stated, exceptions of judicial statement of course occur.^ This coverture doctrine of a Avill by the wife with her husband's license or assent is now dis- pensed with, wholly or partially, in the codes of various States, as we shall see presently.^ § 50. Wife's Disposition as Executrix. Another class of co-called exceptions to the wife's incapacity 5. Kurtz V. Saylor, 20 Penn. St. the property the wife's separate 205; George v. Bussing, 15 B. Men. property during marriage, the better 558; Cutter v. Butler, 25 N. H. 357. opinion defers the time of assent until 6. lb. the wife dies, leaving her husband 7. See Wagner, Estate of, 2 Ashm. surviving. 448; Van Winkle v. Schoonmaker, 15 9. Parker v. Parker, 11 Cush. 519; N. J. Ch. 384. Cf. Cutter v. Butler, Ward v. Glenn, 9 Rich. 127; Ciitter 25 N. H. 357. v. Butler, 25 N. H. 357, 57 Am. Dec. 8. Cutter v. Butler, supra; Wag- 330; Lee v. Bennett, 31 Miss. 119. ner v. Ellis, 7 Penn. St. 413; 4 7 Am. 1. The Massachusetts statute being Dec. 515; Grimke v. Grimke, 1 Do- peculiar as to the husband's assent, Bans. 3G6; 2 ib. 66. In these South the decisions of tliat State are not Carolina cases the fact that the hus- here pertinent. Sniitii v. Sweet, 1 band wrote out the will appears to Cush. 470; Silsljy v. liiillock, 10 have boon taken as strong proof of Allen, 94; Burroughs v. Nutting, an assent f»n his part. But where 105 Mass. 228. tli'-re was no contract which m;ide 2. Post, § 56. 58 CHAP. Ill,] INCAPACITY OF MARRIED WOMEN". § 51 exists, when she takes property in the character of executrix and her will is confined to what she takes in that character; in which case she may make a will without her husband's assent, and the ecclesiastical or corresponding court assumes jurisdiction.^ But if the wife had before marriage reduced to possession personal chattels, to which she was entitled as executrix and residuary legatee, or in some other way the husband's full ownership had attached, the wife cannot dispose of them by will.* Since this exception does not concern property to which the wife takes a beneficial title, it can hardly be called an exception at all. For the effect of such an instrument is merely to pass, by a pure right of representation, to the testator or prior owner, such of his personal assets as remain outstanding.^ The married woman, in other words, has as executrix power to make a will and to ap- point an executor for the purpose of continuing the representation to the original testator.^ § 51. Wife's Will of Separate Property; English Rule. A third class of exceptions, recognized in England, is where property is given or settled, or is agreed to be given or settled, to the wife's separate use. In such a case, and with reference more especially to things personal, the wife has long been permitted to dispose of such property to the full extent of her interest, although no particular form be prescribed in the instrument creating the trust. This follows as an incident to the right of beneficial en- joyment ; it makes her right of disposition complete.'' " I have always taken this ground," said Lord Thurlow in 1789 of this class of cases, " that personal property, the moment it can be en- joyed, must be enjoyed with all its incidents." * And it may be 3. Tucker v. Inman, 4 M. & G. 6. Willock v. Noble, L. R. 7 H. L. 1076. 580, 590, per Lord Chancellor Cairns. 4. Scammell v. Wilkinson, 2 East. 7. Fettiplace v. Gorges, 1 Ves. Jr. 553; Cutter v. Butler, 25 N. H. 353, 46; s. c, 3 Bro. C. C. 8; Lord Eldon 57 Am. Dec. 330. in Rich v. Cockell, 9 Ves. 375; 1 5. Hodsden v. Lloyd, 2 Bro. C. C. Wms. Exrs. 61. 534; 1 Wms. Exrs. 54; Schoul. Hus. 8. Fettiplace v. Gorges, 1 Ves. Jr. & Wife, §§ 163, 460. 46; s. c, 3 Bro. C. C. 8. 59 51 LAW OF WILLS. [part II. affirmed, as a general principle, that personal property which has been acqnired by a married woman under such circumstances that it became her separate estate may, independently of legislation which regulates the subject differently, or of express restraints, be dealt with by her as if she were a single woman.^ There is no reason for distinguishing between real and personal estate settled to the wife's separate use, save so far as the old statutes of disability to devise may be found to operate against married women. But the English cases for some time manifested a doubt on this point, and the testamentary jus disponendi was thought not so clear in the case of separate real estate as of sep- arate personalty. But since the separate use originated as the creature of equity, English chancery courts appear to have con- cluded to embrace under its protection separate property of either class."^ And the rule of English chancery is now well settled that a married woman may pass her separate real estate by will as a feme sole, not less than her personal property.^ 9. Haddon v. Fladgate, 1 Sw. & Tr. 48; Smith, Goods of, ib. 125; Crofts, Goods of, L. R. 2 P. & D. 18. As to what shall constitute the wife's separate property, so as to be held subject to this mode of disposi- tion, see Schoul. Hus. & Wife, Part V, cs. 1-5. The English practice is to grant a limited probate of the wife's will so as to operate upon the separate property disposed of. See Crofts, Goods of, L. R. 2 P. & D. 18. 1. In Taylor v. Meads, the wife had lands conveyed in trust to lior separate use, with a power given her to appoint it by any instrument in writing " to be bv her signed, sealed and delivered" after a certain man- ner; the formalities required being greater than the Statute of Wills re- quired for testamentary dispositions. The property was limited over to others in default of such appoint- ment. She made an instrument in writing, which conformed to the Statute of Wills, but which, not being under seal, was not in accord- ance with the power given her. It was decided that the instrument was defective as the execution of a power of appointment; but that it was a valid devise, such as she had the right to make, of estate settled to her sole and separate use. 4 De G. J. &. S. 597; contra, Buckell v. Bkn- tliorne. 5 Hare, 131. 2. See Hall v. Waterhouse, 5 GifT. G4; Pride v. Bubb, L. R. 7 Ch. 04. Such a will defeats tiie liushaiid's equitable right to curtesy. Cooper v. Macdonald, 7 Ch. D. 288. 60 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 52 § 52. The Same Subject. In thus recognizing the right of a wife to dispose by testa- mentary instrument of her separate property chancery assumes that neither legislation on the subject of wills, nor a special re- straint contained in the instrument which settles the property to her separate use, obstructs the wife's free disposition by testament. Such legislation or such a restraint, if it exist, must operate ; and hence the clause " against anticipation," so-called, which in Eng- lish settlements of this kind has often been used to tie up the wife's hands and prevent her from alienating or incumbering the separate property during coverture, excludes her right as a married woman to alienate it by will.^ On the other hand, as this doctrine of a separate use extends to settlements antenuptial or (if founded upon a consideration) post- nuptial, we may conclude that the will of a married woman may operate as to property thus settled upon her without restriction, as incidental to her right of alienating and disposing of it, and without any express clause empowering her.* And the will per- mitting her testamentary disposition of her separate property pre- vails, whether such property be in possession or reversion, whether vested in present interest or in expectancy.* And where she may thus dispose of the principal of the fund she is presumed capable of disposing of income, savings and accretions as well.^ Xor is it essential that the property came to her separate use without the intervention of trustees; for it is a well-known iiile that equity will treat the husband himself as trustee rather than suffer the 3. See Schoul. Hus. & Wife, § 202, 353; 1 Wms. Exrs. 61, 62; 1 Jarm. as to the clause of "restraint upon Wills, 40. As to the wife's will of anticipation" to be found in settle- property in which she has an ex- ments to the wife's separate use. pectant interest, but that interest Troutbeck v. Boughey, L. R. 2 Eq. does not actually vest in her until 534, bears in this direction. after her husband's death, see Wil- 4. 1 Jarm. Wills, 39. And see as lock v. Xoble, L. R. 7 H. L. 580. to such settlements, Schoul. Hus. & 6. Prec. Gh. 44; 1 Eq. Ca. Abr. Wife, Part VII. 66, 68; Brooke v. Brooke, 25 Beav. 5. Bishop V. Wall, 3 Ch. D. 394; 342; Darkin v. Darkin, 17 Beav. 578. Lechmere v. Brotheridge, 32 Beav. 61 § 53 LAW OF WILLS. [PAET II. wife's beneficial enjoyment of her separate property to fail.^ Sep- arate earnings and the profits and stock in trade of a separate business carried on by the wife may carry all the incidents of separate property.^ A husband's declaration of trust in favor of his wife for her separate use may be either express or implied.^ Moreover, the wife's will of separate property being a good one during coverture, tlie will continues good when coverture ends, whether wife or hus- band be the sui'\avor.-^ § 53. The Same Subject: Where Spouses live apart. So far extends our doctrine of a separate use involving a sep- arate right of disposition, that covenants under a separation deed for the wife's benefit are now upheld sls not obnoxious to sound policy. Whatever the wife acquires and holds for her sole and exclusive use and enjoyment under such a deed may accordingly pass by her will as though she had no husband.^ More generally^ the savings of money which a husband transmits from time to time to his wife from whom he lives separate, for her maintenance and support, have in equity all the incidents of separate estate.^ The wife's earnings, too, while abandoned by her husband usually fol- low the same principle, the subject being expressly regulated in great measure by legislation.'* 7. Tappenden v. Walsh, 1 Phillim. 472; s. c, 25 Bcav. 342; Schoul. 352; 1 Wms. Exrs. 62; 1 Jarm. Hus. & Wife, § 485; Tharp, Re, 3 P. Wills, 40; Hall v. Waterhouse, 5 D. 76. Oiff. 64, which supported the wife's 4. See Haddon v. Fladgate, 1 Sw. devise of land on such a principle. & Tr. 48, where a verbal separation And see Schoul. Hus. & Wife, § 191. had taken place, and the spouses 8. Ashworth v. Outram, 5 Ch. D. never afterwards cohabited. See also 923; Haddon v. Fladgate, 1 Sw. & Schoul. Hus. & Wife, § 486. Tr. 125. The English divorce act, 1857,. 9. Baddeley v. Baddeley, 9 Ch. D. recognizes the will of a married 113; Schoul. Hus. & Wife, §§ 291- woman as to property acquired by 320. licr after a protective order. This 1. I'.iHliop V. Wall, 3 Ch. D. 194. order issues on the ground of her 2. I'ridr' V. iJiiIil), L. R. 7 Ch. 64. liusband's desertion. Worman, Goods 3. Urookc V. Brooke, 4 Jur. N. S. 62 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 54 The wife's capacity as in effect that of a single woman becomes thus extended from the old hypothesis of the husband's civil death. Wherever her husband is dead at the law, a married woman may make a will. As where he has been banished for life ; ^ or is trans- ported for life ; ® or is an alien enemy.^ For in such cases the wife is no longer regarded as under the disabilities of coverture. And some have thought that while a husband's marital rights are suspended, as by his temporary banishment, his wife ought to be able to make a valid will of property acquired by her in the mean- time.^ But a judgment which empowers a married woman speci- ally gives validity only to her future acts.^ § 54. Wife's Will of Equitable Separate Property; American Rule. The American rule follows the English, as to the wife's power to dispose of her equitable separate property, wherever American courts have assumed full jurisdiction of the " separate use " as the creature of equity. Hence it is ruled in several of the United States that the wife's will of property settled to her separate use may operate ; and that a married woman, when not restrained from alienation, may, as an incident to her separate estate, and without any express power, dispose of it by instrument inter vivos or will.'"' But the doctrine is by no means so universally nor so boldly sus- of, 1 Sw. & Tr. 513; 1 Wms. Exrs. don, see Martin, Re, 2 Roberts, 405; 60. Coward, Re, 4 Sw. & Tr. 46; 1 Jarm. 5. Portland v. Prodgers, 2 Vern. Wills, 40 and note. 104; Compton v. Collinson, 2 Bro. 9. Gregory v Gates, 92 Ky. 532. C. C. 377; 1 Wms. Exrs. 63. 1. 2 Kent Com. 170, 171; Porcher 6. Newsome v. Bowyer. 3 P. Wms. v. Daniel, 13 Rich. 349; Buchanan 37; Martin, G6; Ludlnm, Re ing it to the property comprised in (1890), W. N. 162. And see in gen- the power. 1 Wms. E.xrs. 56, 57; tral. Sugden on Powers, c. 3. TJarnea v. Vincent, 5 Moore P. C. 201. Tn cases of doubt, a limited pro- Where a will is only an appoint- bate of the instrument may he tnent under a settlement, the trus- 74 CHAP. III.] INCAPACITY OF MARRIED WOMEN. CA may have power to appoint certain property by will and not by deed, and vice versa} And in some cases, particularly those which involve property rights in the wife's lands, the courts seem to have been misled by the similarity between separate estates and estates with a power of appointment given to the wife; and therefore to have applied the terms " devise," " will," and " appointment " somewhat indiscriminately.^ Kevocation and the other incidents of ordinary wills attend pro tanto the wife's testamentary disposition under a power ;^ which, of course, may be so extensively conferred under the trust as to embrace a considerable property, and perhaps all, in fact, of her personal property. The same formalities are not necessarily requisite in executing a power, as in disposing of separate prop- erty ; but rather the terms prescribed by that power should furnish the criterion.^ This doctrine, however, is liable to statute modifi- cation founded in the general policy of prescribing a uniform mode of execution and attestation for all wills.* tees named do not act. strictly speak- ing, as executors. Fraser, Goods of, L. R. 2 P. & D. 183. Nor do the ex- ecutors so called of the will of a married woman made under a power take anything by right of representa- tion, but merely under the power, subject to the restraints with which that power was coupled; and conse- quently their title cannot extend be- yond the property disposed of by the disposition under the power. Tug- m^n V, Hopkins, 4 M. & Gr. 389; 1 Sw. & Tr. 465; 1 Wms. Exrs. 59. 4. See Harvey, Re, 28 W. R. 73, as, to subjecting appointed funds as assets for the wife's debts. 5. A wife made a will disposing of a fund over which she had a power, and also of a fund over which she had no power, and made her husband her executor, and he proved her will generally. It was held that as to the fund over which she had no power, the will was valid, as made with the husband's assent. Fane, Ex parte, 16 Sim. 403; supra, § 48. 6. See Harvey, i?e, 28 W. R. 73, a3 to subjecting appointed funds as as- sets for the wife's debts. 7. Schley v. McCeney, 36 Md. 266. 8. Under the English Statute of Wills (1 Vict. c. 26), for instance, it is expressly declared that no ap- pointment made by will, in exercise of any power, shall be valid unless executed in the manner required for other wills; and further, that every will so executed shall, as respects execution and attestation, be a valid execvition of the power, notwith- standing the power as conferred im- posed additional or different solem- nities of execution. Stat. 1 Vict. c. 26, § 10 (1837) ; 1 Wms. Exrs. pref- ace: Este V. Este. 2 Robert. 351; 2 Robert. 461 ; appendix post. 75 § 65 LAW OF WILLS. [PAET II. CHAPTER IV. INCAPACITY OF INSANE PERSONS IN GENERAL. § 65. Will of an Insane Person Void ; Difficulty of Modern Tests. Any will which is the offspring of an unsound mind is void ; the broad principle of personal incapacity which is here discovered extending to all dispositions of property, all contracts, the entire management of one's own affairs. In an earlier age the incapacity of insane persons to make a will was plainly, almost brutally, an- nounced by our jurists, the common law drawing no fine line be- tween persons sui juris and those 7ion compotes, which latter class of beings might be found huddled together in the vocabulary as madmen, lunatics, idiots, and natural fools. The disposition was- to narrow the definition of the non compos (for "' insanity " is a gentler word than our early progenitors were accustomed to apply to such unfortunates) and thus reduce the number of those whose kinsmen should feel the reproach of a malady which bore a moral infliction to the victim. Until the latter half of the eighteenth century asylums for hygienic treatment were scarcely known. The English madhouse was a pandemonium ; scions of the rich and well-born who had lost their reason were locked up in some distant comer of the mansion ; while the common herd of lunatics and idiots were chained in cells or pens or wandered, if harmless, as vagrants. In many of our American towns the selectmen would let them out to the lowest bidder to work for a scanty and miserable subsistence. The dramatist has depicted lunatic kings and beggars of our race as baring their breasts together to the howling storm and inviting the elements to aggravate their disorder; but it was not until George III. gave insanity in real life the prestige of royal example that the disorder began to receive tender medical treatment, and the vulgar oj)iiiion that one who is Jion compos must remain so began to turn.^ 9. See preface to 1 Wliarton & cliantjc of sontimont amonp; loyal SI i lie, Med. Jur. .'5(1 Ed., where the Englishmen, produced by the nial- 76 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 66 At the present day the drift is in quite the opposite direction; the insane are humanely cared for, and much less than formerly is the malady found incurable ; but what with s_)Tnptoms increased and diversified greatly in the multitude of patients whose minds have given way under the prodigious strain of our modern social re- sponsibility ; what with the inventive zeal and complexity of all modern research ; we now find the te&ts of mental incapacity run- ning out into the most subtle of psychological refinements.^ Next to determining the legal responsibility of the felon for his crime, nothing so draws the host of contending medical experts into our courts in these days as the inquiry whedier one who has left behind him a will for his survivoi's to quarrel over was of sound and disposing mind when he executed it. § 66. The Same Subject. Mental unsoundness involves, we may assume, disorder of will and feeling as well as of intellect; and hence the feebleness of voli- tion which may subject one to the importunities, the unfair ady of their king, is well traced out. tion. Of the modern drift of senti- Almost simultaneously (it is here ment towards the insane he thus re- added) the investigations of Pinel marks: "Madness having been shown tooke place in Paris, which resulted to be capable of cure, and to be a in the separation from the common condition in itself implying no moral prison in that city of a distinct asy- stigma, and insane asylums having lum for healment of the insane based been proved to be the places where on wise sanitary regulations. As to the insane can most readily be re- the treatment of the English maniac stored to health, many persons come in the earlier days of the Georges, to be regarded by their friends and one need only turn over Hogarth's by a rightful public feeling as insane pictures in " The Rake's Progress." who previously would have been 1. The influence of Rousseau's treated as sane. The definition of in- works (1760-1764) in converting peo- sanity, in the philanthropic mini at pie from the old belief that insanity least, was so enlarged as to include was a crime to an opinion too indul- all persons who. while not being gent in the opposite direction; clearly maniacs, were yet subject to namely, that crime should be healed mental or moral anomalies which a as insanity and provoke our curious wise medical treatment could re- regard and sympathy, elicits Dr. move." 1 Whart. & Stille, pref. Wharton's comment in this connec- 77 § G7 LAW OF WILLS. [pART IL pressure, tlie undue influence, violent or crafty, of those about him, so as to make the will theirs and not his, and cause it to fail justly of probate on that ground, aside from the reasonableness or unreasonableness of its provisions. This is a subject of much prominence in our present connection ; yet coercion might be exerted uipon a sane person to a like result; and we shall postpone its discussion to that of insanity with which it is so often associated. And in dealing directly with testamentary incapacity on the ground of insanity, a topic highly interesting and important under our present law of wills, we shall take the natural order of treating first of the plainer manifestations of this incapacity, thence passing to the finer shades of mental disorder, until our investigation becomes complete. § 67. Standard of Mental' Incapacity in Wills as compared with Contracts, etc. Let us premise, however, that the same legal standard of mental unsoundness is not asserted for invalidating a will as a contract, nor for avoiding responsibility for crime as in either of these other instances. The question of " guilty " or " not guilty," of incapacity for distinguishing between right and wrong, we may dismiss at once.^ As between contracts and wills, several eminent judges have laid it down that a man may be capable of making a will, and yet incapable of making a contract^ or a deed ; * tliat in a sale, for example, mind is opposed to mind, and interests and efforts so antagonize that the just bearings of the whole transaction are less clearly traceable than where, under the common circum.'^tances of a testamentary disposition, one is left free to act upon his own 2. A less degree of imbecility is Wash. C. C. 262; Thompson v. Ky- neccssaiy to invalidate a will than ner, 65 Pcnn. St. .368; Brinkman v, would be ground of acquittal from a Rueggesick, 71 Mo. 55.1; 83 Mo. 175; criminal charge. McTaggart v. Wood v. Lane, 102 Ga. 199, 29 S. E. Thompson, 14 I'cnn. St. 149. Cf. 180. Kinne v. Kinne, 1 Conn. 102. 4. Kerr v. Lunsford, 31 W. Va. 3. Hanks v. rjoodfellow. L. R. 5 659. Q. Ij. 567; Stevens v. Vaiicieve, 4 CHAP. IV.] INCAPACITY OF INSANE PEESONS. § 6t perceptions merely.^ As a general proposition, less capacity, it is said, will suffice for making a will than to transact ordinary business.® All this presupposes, of course, that the testator's mind has been left free to operate without constraint or importunity of any sort from interested parties. For, surely, no class of property dispositions is so liable to close, secret, and sinister influences while the owner is mentally failing as the present; and this, more particularly, where one's disposing act dates at his last illness. Nor should it be forgotten that a sale or other single transaction affects usually a small portion of one's estate, while a testament generally embraces the whole by a sweeping transfer; that if minds antagonize in ordinary business, that antagonism may serve to recall or modify afterwards, or, at all events, to explain the' mutual intent where injustice ensues ; whereas the testamentary act once operating cannot be revoked or altered ; its motives are outside the scope of one's own explanation, and the injustice, if any be done, is forever beyond the reach of correction. Further- more, the testamentary act is that of an individual, and only imperative when one wishes to break the common rule of succes- sion, and disturb the presumptive rights of spouse and kindred surviving him ; whereas business transactions inter vivos involve reciprocal intereists which the State seldom regulates and the parties themselves cannot dispense with ; so that the inquiry may here, if not elsewhere, be pertinent, how far should courts go in up- holding an unjust disposition made by one of doubtful capacity in derogation of the public policy announced in the statutes of descent and distribution V 5. Converse v. Converse, 21 Vt. 567, 50 N. W. 637. And see Stewart 168, 52 Am. Dec. 58. But in some v. Lyons, 47 S. E. 442, 54 W. Va. cases it has been held that the capac- 665 ; Cros^an v. Crossan, 70 S. W. ity requisite for making either will 136, 169 Mo. 631; Weedman's Estate, or contract is precisely the same. 98 N. E. 956, 254 111. 504. Coleman v. Robertson, 17 Ala. 84. 7. As opposed to the common ex- 6. Converse v. Converse, 21 Vt. pression that a less degree of capac- 168; Harrison v. Rowan, 3 Wash. C. ity is requisite for making a will' C. 580; Prentis v. Bates, 88 Mich, tlian a contract may be cited the 79 § 67 LAW OF WILLS. [part II. We should conclude, therefore, that as between contract and testamentary capacity, it is the fairer mode to contrast the stand- ards, when the contrast becomes needful at all, by making the comparison that of differing standpoints rather than of differing degrees from a common standpoint.^ opinion of Sir J. Hannen (1873) in Boughton V. Knight, L. R. 3 P. & D. 64, wbich lie explains in lb. 72 iiote. " It has been erroneously supposed," he says in the latter passage. " that I said that it requires a greater de- gree of soundness to make a will than to do any other act. I never said and I never meant to say so. What I have said, and I repeat it, is, that if you are at liberty to draw dis- tinctions between different degrees of soundness of mind, then, whatever is the highest degree of soundness is required to make a will. . . . From the character of the act it requires the consideration of a larger variety of circumstances than it required in other acts, for it involves reflection upon the claims of the several per- sons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty, and the power of considering these several claims, and of determining in what proportions the property sliall be divided amongst the claim- ants; and, therefore, whatever de- grees tliere may be of soundness of mind, the highest degree must be re- quired for making a will." The chief value of tliese observations is to correct against that habit of mind whicli compares capacity for making a will witli capacity for other trans- action.s, as though it were a matter of dogreea marked off upon one reg- ister. In Louisiana it has been distinctly asserted from the bench that testa- ments are more easily avoided than contracts on the ground of unsound- ness of mind; though here perhaps is felt the influence of the civil law which set aside unnatural or inoffi- cious testaments more freely than does our common law. § 77, post. " This distinction," it was later ob- served, " applies to such matters as those of notoriety and interdiction and not to the amount of intellect re- quired in a testator. So far as the latter is concei-ned, a will may well be made by any mind which has the soundness and strength necessary to endure the conflict involved in the making of a bargain. It would be unreasonable to require that a testa- tor should have more mental vigor and a more lucid memory than a per- son who makes a contract." Chandler V. Barrett, 21 La. Ann. 58, 59, 99 Am. Dec. 71, commenting upon Au- bert V. Aubert, 6 La. Ann. 106. 8. It is more safely said that if a person has sufficient understanding and intelligence for transacting his ordinary business, he is sufliciently capable of making a will; and to such a test testamentary capacity is often referred in dealing with wit- nesses who testify to the point of mental unsoundness. This statement puts the contract and testamentary cai)acity on a co-equal rather than unequal footing. See Benoist v. 80 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 68 § 68. General Standard of Testamentary Capacity stated. All other thing's being equal, the will a fair one of itself, properly executed, and neither undue influence nor insanity ap- pearing to have operated in its composition, the courts are disposed to sustain it. Hence the comparison or similitude of testamentary with contract capacity which we find so frequently asserted in favor of the instrument propounded as the last will. It is only when one's insanity renders him plainly incapable of acting rationally in the ordinary affairs of life and the disposition in question is the fruit of that incapacity, that the difficulty becomes readily solved by setting his will aside. Mental unsoundness which falls short of this, namely, that which bodily infirmity, distress, the decay of advancing age, habitual drunkeness, or some physical defect or peculiarity of character engenders, does not produce a conclusive incapacity to make a will. For as a general proposition, if the testator possesses mind sufficient to understand without prompting the business about which he is engaged when his will is executed, the kind and extent of the property to be willed, the persons who are the natural objects of his bounty, and the manner in which he desires the disposition to take effect, his will is a good Murrin, 58 Mo. 307; 144 Mo. 354; property bv will." See 117 111. 317; § 83, post; as to "sound and dispos- 121 111. 376; 14 7 111. 370; also 83 Ing mind," etc. Various Illinois cases Mo. 175. In Illinois (as in some support this statement of the court. other States) statute expression in- In Meeker v. Meeker, 75 111. 260, 262: fluences somewhat the ruling of the " It is a rule of law that a person courts as the quantum of mental ca- who is capable of transacting ordi- pacity. 130 111. 463. nary business is also capable of mak- But it is still preferable, we think, ing a valid will. It is not required to treat testamentarj' capacity so far that he shall possess a higher capa- as possible, as something furnishing city for that than for the transaction a distinct standard from that of gen- of the ordinary affairs of business. A eral contract capacity, and requiring man capable of buying and selling mental soundness to be tested accord- propertj', settling accounts, collect- ingly; our true criterion at present ing and paying out money, or bor- being, not whether one was capable rowing or loaning money, must of this or that transaction inter usually be regarded as capable of vivos, but w'hether he was capable of making a valid disposition of his making a will. Thus, we shall see in 6 81 § 68 LAW OF WILLS. [PAKT II. one.^ To quote Cockburn, C. J., it is admitted on all hands that in these varieties of mental unsoundness as distinguished from mental derangement, " though the mental frame may be reduced below the ordinarj^ standard, yet, if there be sufficient intelligence the chapter on monomania, post, that one may be capable of transacting complicated business which involves much power of intellect, and yet be under some insane delusion which vitiates the will he has executed. Testamentary capacity does not in- fer capacity for carrying on one's ordinary business. See 70 N. E. 675; 209 111. 193; 17 Pick. 373; 71 Mo. 533 (unable to manage his estate, yet capable of making a will) ; Johnson v. Farrell, 74 N. E. 760, 215 111. 542; Turner's Appeal, 44 A. 310, 72 Conn. 305; 101 N. E. 614, 258 111. 256. ' 9. Delafield v. Parish, 25 N. Y. 10; Thompson v. Kyner, 65 Penn. St. 365; Higgins v. Carlton, 28 Mo. 115; 39 Penn. St. 191; Roe v. Taylor, 45 111. 485; St. Leger's Appeal, 34 Conn. 435; Brown v. Riggin, 94 111. 560, 569; Lewis's Will, 51 Wis. 101. 7 N. W. 829; Wilson v. Mitchell, 101 Penn. St. 495, 502; Shaver v. McCar- thy, 110 Penn. St. 339, 5 A. 614; Cline V. Lindsey, 110 Ind. 337, 11 N. E. 441; 120 Ind. 463; 117 111. 317; Delaney v. Salina, 34 Kan. 532; 9 P. 271; Prather v. McClelland, 13 S. W. 543; 76 Tex. 574; Kerr v. Lunsford, 31 W. Va. 659; Thompson v. Ish, 99 Mo. 160; 12 S. W. 510; 17 A. 520; 31 W. Va. 659, 8 S. E. 493; Mc- Coy V. Sheehy, 96 N. E. 1069, 252 111. 509; Seveniag v. Smith, 133 N. W. 1081, 153 Iowa, 639; Freoman v. PpM-man, 76 S. E. 6.57, 71 W. Va. 303; Huston's Estate, 124 P. 852, 163 Cal. 166; Warnpler v. Ilarrell, 112 Va. 635; Council v. Mayhew, 55 So. 314; Turner v. Anderson, 139 S. W. 180, 236 Mo. 523; Berry v. Trust Co., 53 A. 720, 96 Md. 451, 94 Am. St. Rep. 598 ; Catholic University v. O'Brien, 79 S. W. 901, 181 Mo. 68; Hartley v. Lord, 80 P. 433, 38 Wash. 221; McCoon v. Allen, 45 N. J. Eq. 708, 17 A. 820; 51 N. J. Eq. 315, 30 A. 428; 150 Ind. 159, 49 N. E. 948; 50 S. C. 95, 27 S. E. 555; Hall v. Perry, 87 Me. 569, 47 Am. St. Rep. 352, 33 A. 160; Taylor v. Cox. 153 111. 220, 38 N. E. 656; Martin v Thayer, 37 W. Va. 38, 16 S. E. 489, 36 Neb. 393, 54 N. W. 670; 98 Ala. 267, 12 S. 803; Todd v. Todd, 77 N. E. 680, 221 111. 410; 124 P. 852, 163 Cal. 166; Weedman's Estate, 98 N. E. 956, 254 111. 504. Whether the testator was or was not, at the date of execution, able to understand and reasonably to tran- sact the ordinary business of life, is no doubt pertinent to the inquiry. See Brown v. Riggin, 94 111. 560, 569. Or such business capacity as relates to buying, selling and investing. 180 111. 9. But the precise point of inquiry is an understanding of the particular business, namely, of the testamentary disposition. Too much stress should not be laid on a com- parison between one's contemporane- ous and former business habits. Brown v. Riggin. supra. Ix>rd Cranworth has justly said of testamentary incapacity in Boyse v. Rossborough, 6 H. L. Cas. 45, that 82 CHAP. IV.] INCAPACITY OF INSANE PEESONS. § 69 to understand and appreciate the testamentary act in its different bearings, the power to make a will remains."^ It follows that one who is incapable at the moment of com- prehending the natnre and extent of his property, the disposition to be made of it by testament, and the persons who are or should be provided for, is not of a sound disposing mind. And if this mental condition be really shown to exist, the will must fail, even though he may have a glimmering knowledge that he is endeavor- ing to make a testamentary disposition of his property.^ § 69. The Same Subject: More Deference to Testator in Earlier Cases. It is here to be obsei*ved that some of the earlier cases have laid down the rule of testamentary capacity with much more subserv- the difficulty to be grappled witli arises from the circumstance that the question is almost always one of degree. " There is no difficulty in the case of a raving madman or a drivel- ling idiot in saying that he is not a person capable of disposing of prop- erty; but between such an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon, but 'at what precise moment twilight becomes darkness is hard to determine." The local statute, if any, which de- fines the rule of mental capacity should be consulted. 144 Ind. 463, 43 N. E. 560; 145 Ind. 682, 44 N. E. 757. In Turner v. Anderson, 139 S. W. 180, 236 Mo. 523, stress is laid upon understanding the ordinary af- fairs of life, the deserts of the natural objects of one's bounty with reference to their con kict and treat- ment of him, their necessities, etc. For peculiar language, see also Wal- ker's Will, 128 N. W. 386, 152 Iowa, 154; Crum v. Crum, 132 S. W. 1070, 231 Mo. 626; Lindsay's Estate, 87 A. 302, 240 Penn. 19 (intelligent con- sciousness of the effect, etc.) . See fur- ther, 133 P. 307, 165 Cal. 607; 103 N. E. 268, 260 111. 299; 143 N. Y. S. 798; Guarantee Trust Co. v. Wallsr, 88 A. 13, 240 Penn. 575. 1. Banks v. Goodfellow, L. R. 5 Q. B. 567. And see 1 Whart. & Stille Med. Jur. §§ 19, 32; Shelf. Lunacy, 277, 278; 1 Redf. Wills. 123-127; Lord Kenyon in Greenwood v. Green- wood, 3 Curt. App. 2, 30. And see Erskine, J., in Harwood v. Baker, 3 Moore P. C. 282. 2. Young v. Ridenbaugh, 67 Mo. 574; Wilson v. Mitchell, 101 Penn. St. 495, 502; 110 Penn. St. 339, 5 A. 614; Campbell v. Campbell, 130 111. 466. 22 N. E. 620; 6 Dem. (X. Y.) 123; Chrisman v. Chrisman, 16 Oreg. 127, IS P. 6. 83 § 70 LAW OF WILLS. [pART II. ience to the purported expression of one's last wishes. They seem to have assumed that there must be a total want of understanding in order to render one intestable; that a court ought to refrain from measuring the capacity of a testator, if he have any at all ; and that unless totally deprived of reason and non compos mentis, he is the lawful disposer of his own property, so that his will stands as a reason for his actions, harsh as may be its provisions.^ This ascribes altogether too great sanctity to the testamentary act of an individual as opposed to the law's own will set forth by the statutes and founded in common sense ; and it is well that the best considered of our latest cases recede from so extreme and false a standard. § 70. Incapacity is more than Weak Capacity; Enfeebled Tes- tator may make a Will. J^otwithstanding the modem rule to be favored, we should still, however, bear in mind that incapacity is more than weak capacity ; and, as already intimated, mere feebleness of mind does not suffice to invalidate a will, if the testator acted freely and had sufficient mind to comprehend intelligently the nature and effect of the act he was performing, the estate he was undertaking to dispose of, and the relajtions he held to the various persons who might naturally expect to become the objects of his bounty. While it is true that it is not the duty of the court to strain after probate, nor in any case to grant it where grave doubts remain unremovcd and great difficulties oppose themselves to so doing,'* neither is it the 3. Stewart v. Lispenard, 26 Wend. of a mean understanding (neither of 2.55, modified by Delafield v. Parish, the wise sort nor the foolish) but 25 N". Y. 10; Elliot's Will, 2 J. J. indifferent, as it were betwixt a wise Marsh. 340; Burger v. Hill, 1 Bradf. man and the fool, yea, though he 360; Dornick v. Reichenbach, 10 S. rather incline to the foolish sort, so & R. 84. Perhaps, nfter all, this dif- that, for his dull capacity he might feroncc is more of dictum than of con- worthily be called grossum caput, a elusion upon all tlie proof. dull pate, or a dunce, such a one is 4. Dohifield v. P.irish, 25 N. Y. 35, not proliibited from making liis tes- pcr curiam. tament." Swiiib. pi. 2, § 4, ])1. 3. ••Jf a man," said Svvinl)urne, "be Tlie force of this somewliat brutal . 84 CHAP. IV.] I^" CAPACITY OF INSANE PEESONS. § vo duty of the court to strain against probate^ and impeach the will merely because it is made in old age or upon the sick bed, after the mind has lost a portion of its former vigor, and has become weak- ened by age or disease.^ Weakness of memory, vacillation of pur- statement lies in a delicate and dis- criminating application of it. 5. Meeker v. Meeker, 75 111. 260; Bundy v. McKnight, 48 Ind. 502; Duffield V. Morris, 2 Harring, 379; Legg V. Myer, 5 Redf. (N. Y.) 628, 635; Watson v. Donnelly, 28 Barb. 653. Even a will somewhat unfair was upon this argument admitted to probate in Legg v. Myer, supra. In Delafield v. Parish, 25 N. Y. 97, the majority of the court laid down the following legal propositions: " In law, the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non compos mentis, as those terms are used in their fixed legal meaning. Such being the rule, the question in every case is, had the testator, as compos meiitis, capacity to make a will; not, had he capacity to make the will produced. If com- pos m,entis, he can make any will, however complicated; if non com- pos mentis, he can make no will — not the simplest." These rules (which appear to be drawn somewhat from the literal ex- pression of a New York statute) dif- fer materially from those announced by Davies, J., in the same case, and may appear open to grave exception. In the first place, they attempt a bolder line between the sane and the non-sane than medical experience justifies. Next, they leave out of view the varied operation of insane delusion, which, as we well know at this day, might enter into one testa- mentary disposition but not another, so as to invalidate in the former in- stance only. And again, they ignore the possibility of undue influenc;' from without, to which the wills of all feeble and weak-minded persons of wealth are peculiarly subjected. Far from true appears the abstract proposition that a testator who can make one will can make any will. To charge a jury to find whether a testator is '' crazy " or not is not in good form, and the word is quit • inappropriate in such an issue. Calvin, Surrogate, in Townsend v. Bogart, 5 Redf. (N. Y.) 93, 105, sug- gests that the use of the term com- pos mentis, which is sometimes made the standard of testamentary capa- city as meaning " sound mind," will often mislead. And he commends the careful expression of the court in Bundy v. McKnight, 48 Ind. 502. Here it is observed tliat the law does not undertake to test a person's in- telligence, and define the exact qual- ity of mind and memory which a tes- tator must possess to authorize him to make a will; yet it does require him to possess a mind to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty, their deserts in reference to their conduct and treatment towards him, their capacity and necessities; that he shall have sufiicient active memory 85 70 LAW OF WILLS. [part il jjose, credulity, vagueness of thought, may all consist with adequate testamentary capacity, under favorable circumstances. And a comprehensive grasp of all the requisites of testamentary know- ledge in one review appears unnecessary provided the enfeebled testator understands in detail all that he is about and chooses rationally between one disposition and another.^ to retain all those facts in his mind, long enough to have his will prepared, and executed; and if this amount of mental capacity is somewhat obscure or clouded, still the will may be sus- tained. " There is no country in the world in which the law permits a larger exercise of volition in the dis- posal of property after death than in England " [and it might be added in the United States, where the English law is followed]. "But it requires as a condition, that this volition siiould be that of a mind of natural capacity, not unduly impaired by old age, enfeebled by illness or tainted by morbid influence. Such a mind the law cails ' a sound and disposing mind.' " Sir J. P. Wilde in Smith v. Tebbett, L. R. 1 P. & D. 398, 400. 6. Wilson V. Mitchell, 101 Penn. St. 495, 502; approved in 110 Penn. St. 339, 5 A. 614; Jackson v. Hardin, 83 Mo. 175; Delaney v. Salina, 34 Kan. 532, 9 P. 271. It is not neces- sary that the testator should know the number and condition of his rela- tives and their claims upon his bounty, nor that he should under- stand the reason for giving or with- holding his bounty from any such relatives. Spratt v. Spratt, 76 Mich. 384, 43 N. W. 627. Nor that he filiould remember the names of ab- Kcnt relatives. Kramer v. Wcinert, 81 Ala. 414, 1 S. 26. Nor that he sliould call to mind every item of his property and the value of each. Reichenbach v Ruddach, 127 Penn. St. 564, 18 A. 432. Nor, of course, that he should understand the precise legal efYect of the provisions he makes, for on such points the most sane of testators may fail. § 80a Nor that one shows no failure of memory and weakening powers, though instances on this point might be pertinent as proof. Rishmond's Appeal, 59 Conn. 226, 21 Am. St. Rep. 85, 22 A. 82; Howard v. Howard, 72 S. E. 133, 112 Va. 566; 45 N. J. Eq. 890, 19 A. 622. Nor that the testa- tor should comprehend the provisions of his will in their legal form, like a skilled lawj'er; provided he under- stood the simple elements of which his disposition was composed and the will accorded substantially with his wishes. § 80a. It is misleading and too sweeping to rule that if a testator's mind was '• unsound " he could not make a valid will. Durham v. Smith, 120 Ind. 403. 22 N. E. 333; Reichenbach v. Ruddach, 127 Penn. St. 564, 18 A. 432. Extreme physical sufTering does not incapacitate. Delafield v. Parish, 25 N. Y. 10; Beemer v. Beemer, 96 N. E. 1058, 252 111. 452 (crying out with pain). See further, Benjamin's Will, 136 N. Y. S. 1070 (a first ap- popluctic shock) ; Geiger v. Bardwell, 86 CHAP. IV.] IXCAPACITY OF INSANE PERSONS. § 72 § 71. The Same Subject: The Testator's Mind should act with- out Prompting; Attention aroused, etc. In the important case of DelafieJd v. Parish, Davies, J., of the New York Court of Appeals, after announcing the fairer rule of testamentary capacity above set forth, spoke of the testator's mind as acting without external pressure wherever it acted properly. " The testator must," he says, " have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in re- gard to them ; "^ and, we may add, long enough to have been able to dictate or write out his wishes, and to execute with all due formalities. Though one should be in a dying condition his capacity is sufficient, if, when his attention is aroused, his mind acts clearly and with discriminating judgment as to the thing to be done and its bearings.^ § 72. The Test of Testamentary Capacity should be referred to the Particular Instrument and Transaction. When we come to examine in detail the various classes of cases where sanity and the capacity to make a will have been in contro- versy, the general doctrine, as above stated, will more clearly appear with its qualifications. We shall find tliat the criterion in such cases is best taken as sui generis and not referred to the standard of general contract capacity ; though unquestionably the 99 N. E. 582. 255 111. 320; Purcell's 7. De'afic'd v. Parish, 25 N. Y. 9, Estate, 128 P. 932, 164 Cal. 300; affirming Parish v. Parish, 42 Barb. Norton v. Clark, 97 N. E. 1079, 253 274. And see 76 Mich. 364, 43 N. W. 111. 557, 556 (need not hold all par- 310; Hall v. Perry, 87 Me. 569; ticulars in mind at the same time) ; Sayre v. Princeton University, 90 S. Weedman's Estate, 98 N. E. 956, 254 W. 787, 192 Mo. 95. 111. 504 (unable to manage his gen- 8. Bevelot v. Lestrade, 153 111. 625, eral business); Soveiiing v. Smith, 632, 38 N. E. 1056. 133 N. W. 1081, 153 Iowa, 639. 87 § 73 LAW OF WILLS. [I'AKT II. habit and capacity of any testator to actively transact his ordinary business and make his own contracts furnish strong evidence of the capacity at issue.^ The vital question in any such case should be, whether upon all the evidence the particular instrument pro- pounded for probate was or was not under all the circumstances the real testamentary disposition (and the last one, of course) of a mind neither deranged in producing it, nor operating under stress of error, fraud, or undue infiuence.^ And to decide this question properly requires a careful view of the particular case in all its bearings without too rigid an adherence to any general maxims of capacity. The time and place to be regarded in deter- mining the validity of the will should be essentially the time and place of its execution.^ § 73. Testamentary Capacity consistent with Execution of a Will in Extremis. The will of a dying person, made very close to the point of death, requires a careful scrutiny of the surrounding circumstances 9. The capacity of making and tak- the distinguished author shows his ing care of one's property has been own preference for bringing questions held evidence of his testamentary ca- of this character to the test of a pacitv in a particular case, but not simple inquiry. conclusive evidence. Gass v. Gass, 3 The common rules of testamentary Humph. 278. " But it is proper to capacity are criticised in Irish v. remember," observes Judge Redfield, Newell, 62 111. 196. The best form "that the capacity to make and take (it is here said) in which the qnes- care of property is more satisfactory tion of testamentary capacity can be evidence of testamentary capacity, stated to the jury is, whether the than the want of that power would testator's mind and memory were be of want of due testamentary capa- sufli:"iently sound to enable him to city." 1 Redf. Wills, 127. The cir- know and understand the business in cumstance that the testatrix had which he was engaged at the time he badly managed a large estate which executed the will; and in determin- she inherited so that much of it was ing the question the competency of wasted is no proof of testamentary the mind should be judged of by the incapacity. Hall v. Hall, 17 Pick. nature of the act to l>e done, from a ','jT.i. Sf* foot notes, §§ 68, 70. consideration of all the circumstances 1. In 1 Kodf. Wills, 131, 132, after of the case. See more fully, c. 9,. commending Swinburne's observations post. upon this gcnor.'il subject of capacity, 2. See Kerr v. Lunsford, 31 W. Va.. S8 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 74 which bear upon capacity and free volition. It is certainly a very dangerous period for taking into mind for the first time the ar- rangement of a complex disposition of property, or even for exe- cuting intelligently. But, after all, the question of sanity or insanity, freedom of will or coercion from without, is, as in other cases, the material one to be decided upon all the facts. Where the act of execution in extremis relates not to a will jusit framed in the mind, but to one which has reduced to writing the results of the testator's previous deliberation and direction, at an earlier stage of illness, it deserves peculiar indulgence, when drafted correctly and then executed in due form.^ One may be too weak physically to do more than make a mark to the instrument, and yet be mentally competent ; * and one may be mentally failing and yet the will may stand as tlie disposition framed when mentally strong. § 74. Testamentary Capacity consistent with Insane Delusions, etc. The better opinion in English and American courts, as we shall show more fully hereafter, holds that mental unsoundness, exhibited in insane delusions, or what has been loosely styled " partial insanity,'' does not of itself destroy testamentary capacity necessarily, unless the will in question be the direct offspring of 659; Stewart v. Lyons, 47 S. E. 442. tating the will, she had sufficient dis- See c. 9, post. And see Voodiy v. cretion for that purpose, and at the University of Illinois, 95 N. E. 1034, time of executing it was able to recol- 251 III. 48; Wetzel v. Firebaugh, 95 lect the particulars she had so dic- N. E. 1085, 251 111. 190; Murphy v. tated, they might find their verdict in Estate, 116 P. 1004, 43 Mont. 353; favor of the will; and they found ac- McCoy V. Sheehy, 96 N. E. 1069, 252 cordingly. Hathorn v. King, 8 Mass. 111. 509. 371, 5 Am. Dec. 106. See also Brown 3. Thus, in a Massachusetts case a v. Riggin, 94 111. 560; 39 N. Y. 153; testatrix gave directions, at eleven Lewis's Will, 51 Wis. 101, 7 N. W. o'clock in the morning, how her will 829; 16 Oreg. 12 7, 18 P. 6; 130 111. should be drawn up. She executed 467, 6 L. R. A. 167, 22 N. E. 620; the will at six in the evening and died Choate's Will, 96 N. Y. S. 380. two hours after. The jury were in- 4. § 84, post. structed that if, at the time of die- 89 § 76 I^W OF WILLS. [part II. the delusion. Where, in other words, the delusion is altogether collateral to the disposition, the will itself is not invalidated; but where the delusion manifestly operated upon the disposition, then the will must be declared void.^ In general our latest decisions show a positive rreluctance to set aside any will on mere proof that the testator suffered from some dubious mental disorder or weak- ness, provided it fairly appear that the provisions of the will were not thereby affected.^ § 75. Modes of testing Capacity, as between Monomania and Habitual Insanity. Where a person is laboring under such insane delusion, or what modem psycholog}^ terms monomania, his sanity is to be tested by directing his attention to the subject-matter of such delusion; but where a person is afflicted with habitual insanity unaccompan- ied by delusions, his sanity is to be tested by his answers to ques- tions, his apparent recollection of past transactions, and his rea- soning justly with regard to them and with regard to the conduct of individuals.^ § 76. Effect of Insanity where a Will and Codicils are executed. We shall see that a codicil republishes a will, if clearly refer- ring to it, and makes the will speak from the date of the codicil, and that the same principle applies where two or more codicils are added ; the practical effect being to incorporate the instruments as one testamentary disposition.^ Where, therefore, a will with several codicils is contested on the ground of mental incapacity in the maker, it is not necessary to establish capacitv at the several dates when the instruments were executed ; for capacity at any one date renders valid the act then done and all the preceding acta republished by it.* 5. Sop c. 8, post, as to monomania 7. Sir C. Cresswell in Nichols v. anrl insane delusions. Binns, 1 Sw. & Tr. 239. 6. Hire v. Rice, 50 Mich. 448, Ifj 8. See Part IV. post, as to Codicils. N. VV. r>4r,. 9. Brown v. Riggin, 94 III. 560. 90 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 77 § 77. Unjust and Foolish Wills viewed v/ith Suspicion. Notwithstanding the broad principle which maintains testa- mentary capacity, it is generally found in practice that a will which is partial and unjust in its provisions, absurd, or clearly devoid of natural duty or affection, finds no hearty support in the courts. Such wills are not, indeed, absolutely void ; but their execution may be regarded with jealousy and suspicion. The spiritual tribunals in early times, following the Roman law of inofficious testaments,^ made little compunction of setting senseless wills aside, or, as Swinburne very strongly expressed it, " if there be but one word sounding to folly." ^ Foolish words, foolish phrases, cannot in these days, however, be said to invalidate any will at the Anglo-Saxon law; and it is doubtful whether they ever did more than furnish as against such an instrument a presump- tion which more positive evidence of intention ought by the present rule to fortify.^ We have already seen that discrimination by will against the surviving spouse or child is to some extent guarded against, and not wholly by construction ; * but the English law does not follow the Roman in avoiding such wills peremptorily as the offspring of incapacity, nor even so as to prevent one absolutely from disinheriting his own offspring.^ On the contrary, if a testator be legally competent to make his will, and acts freely, his will cannot be impeached because harsh, unequal, unreasonable, imprudent, or unaccountable in its provisions;^ nor as being a And see Mairs v. Freeman, 3 Redf. 3. 1 Redf. Wills. 121; 1 Hagg. Ecc. {N. Y.) 181. 214; Munday v. Taylor, 7 Bush, 491. 1. By the Roman law testaments 4. Supra, §§ 19, 20. deficient in natural duty might be 5. 2 Bl. Com. 502, 503. set aside on that ground; as where 6. Boughton v. Kniglit, L. R. 3 P. a child of the testator was left with- & D. 64; Nicholas v. Kershner, 20 W. out provision and no sufficient reason Va. 251; Hubbard v. Hubbard. 7 Or. was given for the omission. 2 Bl. 42; Higgins v. Carlton, 28 Md. 118, Com. 503; 1 Wms. Exrs. 38. 92 Am. Dec. 666; Munday v. Taylor, 2. Swinb. pt. 2, § 3, pi. 16. And 7 Bush, 491; Davis v. Calvert, 1 Gill see Waring v. Waring, 6 Moore P. & J. 269; 138 Mo. 197; Kaufman's C. 349. Estate. 117 Cal. 288, 49 P. 192, 59 Am. St. Rep. 179; 49 S. C. 159, 61 91 77 LAW OF WILLS. [part IL foolish or Tisionary disposition ; "^ nor even as "being devoid of natural affection and moral duty.* It may be that what on the face of the will appears an unnatural disposition, may be reason- ably explained.^ And certainly the more distant or unfamiliar one's heirs and next of kin, the less should he be expected to pro- vide for them, equally or at all, by his testament.^ But in order to sustain any unjust, unnatural, or absurd will, which may be contested, fair proof at least should be afforded that the testator was of sufficient capacity at the date of execution to comprehend its import ; and furthermore the trier of the case should believe that neither essential mistake on his part nor the fraud nor undue influence of others about him produced so un- happy a disposition.^ And where a person is sometimes sane and sometimes insane, and the will appears crazy, unjust, unnatural, or undutiful, it may well be presumed that he executed it while insane or under the insane malady, unless indeed they who pro- pound it can prove to the contrary.^ In fine a harsh and unnat- Am. St. Rep. 808, 27 S. E. 16; 48 N. J. Eq. 566, 25 A. 11; Gesell v. Bnug- lier, 60 A. 481, 100 Md. 671; Town- send's Estate, 105 N. W. 110, 128 Iowa, 621; 70 P. 908, 42 Oreg. 345; 84 N. Y. S. 218; 32 W. Va. 119, 9 S. E. 65; 118 111. 199, 8 N. E. 777, 108 Cal. 608, 41 P. 70; 148 S. W. 860, 244 Mo. 429; 160 S. W. 1071, 156 Ky. 342; 133 P. 841, 90 Kan. 285; 63 So. 409, 133 La. 929. 7. Lewis's Estate, 152 Penn. St. 47 7, 25 A. 878; Martin v. Thayer, 37 W. Va. 38, 16 S. E. 489. 8. 1 Wms. Exrs. 38, 361; c. 8, post ; CofFman v. Hendrick, 32 W. A. 119, 95 E. 65; Schneider v. Manning, 121 111. 376, 12 N. E. 267, 72 Iowa, 515. 9. 117 Cal. 262, 49 P. 172, 711. Deep religious conviction, (hough perhap.s narrow and illiberal, may affect one's disposition. 50 N. J. Eq. 733, 26 A. 706. 1. Motives for disinheriting kind- red, and collateral kindred more es- pecially, may readily appear in proof. See Smith v. James, 72 Iowa, 515, 34 N". W. 309. The test of " unnatural " is referable to the testator's own nature and to what might be expected of him. Morgan's Estate, 219 Penn. 355, 68 A. 935. See further, Bens- berg V. Washington University, 158 S. W. 330, 251 Mo. 641; 29 P. 778, 164 Cal. 525; § 185 post. 2. Baker v. Batt, 2 Moore P. C. 317; Brogden v. Brown, 2 Add. 449; Vrccland v. McClelland. 1 Bradf. 394 ; Montefiore v. Montefiore, 2 Add. 361; 1 Redf. Wills, 121, 122; 1 Wms. Exrs. 38, 361; Estcrbrook v. Gard- ner, 2 Drm. (N. Y.) 543. 3. Swinb. pt. 2, § 3, pi. 15; 1 Ilagg. 92 CHAP. IV.] IXCAPACITY 01'' INSANE PERSONS. § 78 ural disposition by the will in question, is a circumstance which tends to discredit the maker's testamentary capacity.^ And at all events, the construction of such a will after its admission to pro- bate, may often in the application of general rules, defea.t one's ill intention.^^ § 78. The Just Will of an Insane Person considered. On the other hand, one who is wholly deranged in mind so as to be in a genuine sense insane cannot while in that condition, nor while under undue constraint, make a valid will, however just, natural, and reasonable might appear its provisions.^ Yet the circumstance that the testator, unaided by others, has made a judicious will containing nothing '' sounding in folly " nor failing in natural affection and duty, bears certainly very strongly in favor of sustaining it; and we find courts constantly disposed to nphold such a will, even in the case of a person habitually insane or tending to imbecility or subject to insane delusions, where there is no proof to repel the theory that it was made during some lucid interval or before the mental powers had reached the final state of decay, or free from the delusion.® And aside from the claims of what are called the natural objects of one's bounty a 214; 1 Wms. Exrs. 37; Sevening v. 6. Cartwright v. Cartwrightj 1 Smith, 133 N. W. 1081, 153 Iowa, Phillim. 90; Kingsbury v. Wbitaker, 039. And see Boughton v. Knight, 32 La. Ann. 1055, 36 Am. Rep. 278; L. R. 3 P. & D. 64; c. 8 on mono- Wilson v. Mitchell, 101 Penn. St. mania, post; Van Alst v. Hunter, 5 495; Kempsey v. McGinniss, 21 Mich. Johns. Ch. 148, 158; Smith v. Smith, 123; Peck v. Carey, 27 N. Y. 9, 84 75 Ga. 477. Am. Dec. 220; Gombault v. Public 4. See Lamb v. Lamb, 105 Ind. 456, Administrator, 4 Bradf. (N. Y.) 226; 5 N. E. 171; 180 111. 65, 300, 54 N. Goble v. Grant, 2 Green, Ch. (N. J.) E. 154, 321; Walls v. Walls, 99 S. 629; Von de Veld v. Judy, 143 Mo. W. 969; Hardenburgh v. Harden- 348; Silverthorn's Will, 68 Wis. 372, burgh, 109 N. W. 1014, 133 Iowa, 1; 32 K W. 287 (a strong instance); Blackman v. Andrews, 150 Mich. 322, 78 N. E. 591, 222 111. 276, 113 Am. 144 N. W. 218. St. Rep. 400; 1 Wms. Exrs. 361, Per- 4a. See Part VI. post. kins's note; Buckman's Will, 85 A. 5. Potts V. House, 6 Geo. 324; Har- 246, 80 N. J, Eq. 556 (testator 94 per V. Harper, 1 N. Y. Supr. 351. years old). 93 § 80a LAW OF WILLS. [part il will made in favor of a person for whom one has a strong and well- founded aifection, cannot he called unnatural.^ § 79. Manner of making and executing the Will. As bearing upon issues of testamentary capacity, the manner of making and executing the will in question is an important consideration, as well as the character of the will itself. Thus^ if the will be written out clearly by the testator himself which manifests intelligence on its face, this is a strong though not conclusive circumstance; and so too, where the testator took de- cidedly the initiative in having the will prepared and executed, instead of yielding or confiding the matter, as it would appear, to- those about him.^ § 80. Testamentary Capacity as contrasted in Complex and Sim- ple Estates. It is sometimes stated that the same degree of mental capacity is not required in making a will of a small and simple property as of a large, diversified, and complicated estate.^ But such a maxim ought duly to regard the particular testator, whether a per- son of business habits and accustomed to large pecuniary dealings, while in normal condition, or the reverse;^ the individual being, so to speak, compared with himself. § 80a. Mistake as to Legal Effect of Will, etc., does not in- capacitate. The testator need not have correctly comprehended the legal provisions or legal effect of his will in this connection. That he wholly mistakes the extent of his estate or what his testament 7. See RufFino's Estate, 116 C'al. ention is not conclusive. Bever v. 204, 48 P. 127; French v. French, 74 Spangler, 93 Iowa, 576, 61 N. W. N. E. 403, 215 111. 470. 1072. And see § 255, post. 8. See e.g. Cartwright v. Cart- 9. Sheldon v. Dow, 1 Dem. (N. Y.) Wright, 1 Phillim. 90, a strong in- 503, 511. And see Campbell v. Camp- Btance in point, where a will was es- lioll. 130 111. 467. tahliwhcd as made during a Incid in- 1. See Delafield v. Parish, 25 N". Y. terval. Bui llie circumstance of e.xc- 'J7, commented upon supra, § 70. 94 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 81 will actually accomplish does not of itself import mental in- capacity.^ § 81. Will of one under Guardianship not necessarily Void. The test of testamentary incapacity being in a proper sense sui generis, it does not follow that the will of one under guardian- ship is necessarily void. It would be out of place to set forth hero the general scheme of practice which prevails in England and the United States for committing those who, from mental unsoundness' or habitual drunkeness, or as spendthrifts, are adjudged incapable of managing their own estates, to some guardian or committee. Chancery takes the essential jurisdiction of such cases in England, while in this country it falls rather to the county probate tribunals, under statutes which vary in the details of jurisdiction and process. Often does the court put a person under a commission of lunacy or guardianship where he cannot be regarded as absolutely insane, or if insane, where he is only temporarily so ; the law having, as the main object in view, to deprive such a party of managing his own estate because he is incompetent to have the care of it and would be likely to squander it. The point here at issue is there- fore the general rather than the partial or particular incapacity of the person for dealing with his property; and one might even, while under such a guardianship, make a valid and intelligent will which deserved to be upheld, under the comprehensive rule of testamentary capacity already set: forth.* Not only would it deserve to be upheld because at the date of execution the ward might have been entitled to his discharge from guardianship, but because, while an incompetent manager, he might not, on the whole, have been an incompetent disposer by testament of his property. Eor we know tJiat one may have intelligently arranged where all shall go at his death and yet be himself sensible,, as well as his 2. Holmes v. Campbell Co'lege, 125 3. See 1 Redf. Wills, 123; Sher- P. 25, 87 Kan. 597. 41 L. R. A. (N. wood v. Sanderson, 12 Ves. 445; S.) 1126; Ditton v. Hart, 93 N. E. Schoul. Dom. Eel. §§ 293, 304, 305. 961. 175 Ind. 181; 21 Mich. 141, 142. 4. Supra, § 68. 102 Ga. 490, 501, 31 S. E. 100. 95 § 81 LAW OF WILLS. [pART II. relatives, that he grows more and more unfit to take care of his property; we know that one may have a lucid interval or even be fully sane once more and yet fail to demand that the management be restored to him. Guardianship under our local codes, moreover, is often granted upon allegations of intemperate or spendthrift habits, rather than for mental unsoundness. But in general where a person is placed under a guardianship for positive insanity, the investigation upon which the appoint- ment was based is such as to establish a prima facie case that he vras, at that date at least, non compos and incapable of making a valid will. And the fact of such an appointment, as well as of the testator's continuance under the guardianship, is doubtless a very important one whenever one's will is contested. But such evidence of testamentary incapacity is prima facie only and open to ex- planation by other proof.'' Such a person may make a valid will if he be in fact of sound mind at the time of its execution.^ ]^or is the character of the appointment thus made invariably such as adjudges one an insane person at all ; and if the record falls short of establishing that sanity was put at issue in the proceed- ings for gTiardianship, not even a prima facie case of testamentary incapacity is thus made out.^ 5. Chamberlayne Evid. § 2638; 1 Titlow v. Titlow, 54 Penn. St. 216; Wms. Exrs. 38 & Perkins's note; 10 Breed v. Pratt. 18 Pick. 115; Stone Moore P. C. 244; Hamilton v. Hamil- v. Damon, 12 :Mas3. 4S8; Rice v. Rice, ton, 10 R. I. 538; Breed v. Pratt, 18 50 Mich. 448, 15 N. W. 545; 57 Cal. Pick. 115; Lucas v. Par.sons, 27 Geo. 529; Slinger's Will, 72 Wis. 22, 37 593; Robinson v. Robinson, 39 Vt. X. W. 545. And so with the fact of 267. See Cowdry's Will, 60 A. 141, being in an insane asylum. Draper's 77 Vt. 359 (statute) ; 102 Me. 72, 60 Estate, 64 A. 520. 215 Penn. 314. A. 215; King v. Gilson, 90 S. W. 367, 7. This holds true of a probate or- 191 Mo. 307. An inquest of lunacy der adjudging a man " incompetent is conclusive against a subsequent to have the care of his property." testamentary disposition only when Rice v. Rice, 50 Mich. 448, 15 N. W. made so by statute. Norton v. Clark, 545. But such an order may be put 2.j3 111. 558, 566. 97 N. E. 1079. in evidence as bearing on the testa- 6. Cooke V. Cholmondely. 2 Mac. & tor's condition. lb. O. 22 ; Bannatyne v. Bannatyne, 16 If the inquisition for lunacy vras Jur. 864; 1 Redf. Wills, 122, 133. 134; in fact ex parte, the value of the rec- 96 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 83 Nor, on the other hand, does a judgment which declared a person of sound mind and removed a guardian who had been placed over him, conclusively prove him of testamentary capacity in issues of prohate, like the present; ^ though such evidence might carry much weight. § 82. The Same Subject: Adjudication of Idiocy. An adjudication of idiocy, however, imports so base a mental condition that incapacity to make a will ought from this circum- stance to be more readily inferred than where one is placed under the usual guardianship as a lunatic or one generally insane ; though it still holds true that such collateral adjudication, especially if made long after the will was executed, is not conclusive against a probate of the instrument after the testator's death.' § 83. Sound and Disposing Mind and Memory. The word " memory " is much used in connection with this subject of testamentary capacity, coupled with " mind." A dis- posing memory is understood to be one which is capable of re- calling to the testator's own view all his estate and all the persons who naturally and properly would partake under his disposition of it.^ Lord Coke mentions the necessity of a " disposing mem- ory " or a " safe and perfect memory " ; ^ and the time-honored phrase, which asserts the testator's confidence in his own mental capacity, is, as wills are commonly drawn, " being of sound and ord is not great in an issue of will or C. 282; Marsh v. Tyrrell, 2 Hagg. no will. Bannatyne v. Bannatyne, 14 122; Den v. Johnson, 2 South. 454; E. L. & Eq. 581. And see as to 1 Redf. Wills, 123. " It is not neces- guardianship for drunken or spend- sary that he collect all these in one thrift habits, Lewis v. Jones, 50 review. If he understands in detail Barb. 645 ; Leckey v. Cunningham, all that he is about, and chooses with 56 Penn. St. 370. understanding and reason between one 8. Fenton's Will, 97 Iowa, 192, 66 disposition and another, it is suffici- N. W. 99. ent for the making of a will." Wil- 9. Townsend v. Bogart, 5 Redf. (N. son v. Mitchell, 101 Penn. St. 495, Y.) 93. 502. 1. Harwood v. Baker, 3 Moore P. 2. 6 Co. Rep. 23. 7i 97 g 84 I'AW OF WILLS. [part II. disposing mind and memory " ; coupled, perhaps with the prefix " being in sound [or sufficient] bodily health.^ The issue is sometimes stated as one of " sound mind, memory^ and understanding." In a broad sense, however, the phrase " sound mind " covers the whole subject/ Mere decay or feebleness of memory, or absent-mindedness, ought not to invalidate a will, unless amounting, under our general rule, to a mental incapacity to collect the particulars essential to a just testamentary disposition.^ § 84. Testamentary Capacity not dependent upon Sound Health. But though one's will may allege that the testator is of sound health, neither the statement nor the condition is essential to the validity of the instrument. In other words, testamentary capacity is not conditional upon the possession of sound health or of great vigor or activity, whether intellectual or physical. " Incapacity," it is said, " cannot be inferred from a feeble condition of mind or body. Such a rule would be dangerous in the extreme." If, therefore, the will in question be the free act of the testator, within 3. See Forms of Wills in Appendix. may be said to be one which is capa- 4. "Emphasis," observes an English ble of presenting to the testator all judge in 1873, " is laid upon two par- his property, and all the persons who ticular functions of the mind which come reasonably within the range of must be sound in order to create a his bounty." Benoist v. Murrin, 58 capacity for the making a will ; there Mo. 307, 322. See also 4 Wash. C. C. must be a memory to recall the 267. " Sufficient active memory to several persons who may be fitting collect in his mind, without prompt- objects of the testator's bounty, and ing. the particulars." etc. Hall v. an understanding to comprehend their Perry, 87 Me. 569, 572, 47 Am. St. relationsliip to himself and their Rep. 532, 33 A. 160. And see § 71. claim upon him. But for convenience 5. See Taylor v. Pegram, 151 111. the phrase 'sound mind' may be 106; Douglas's Estate, 162 Penn. St. adopted." Bougliton v. Knight, L. 567, 26 L. R. A. 504; Chappell v. R. 3 P. & D. 64, 66, per Sir J. Han- Trent, 90 Va. 849, 198. E. 319; 37 ncii. And see Smitli v. Tebbitt, L. W. Va. 54. 16 S. E. 489; Southworth j;. 1 I'. & D. 3;(S, 400. V. Southworth, 73 S. W. 129, 173 Mo.. "A disponing mind and mtmory 50. §§ 70, 71. 98 CHAP. IV.] INCAPACITY OF INSANE PERSONS. n § 85 the scope of tlie rule for testamentary capacity already stated, the disposition of one in impaired health should stand.^ § 85. Classification of Insanity; the Various Kinds. Insane persons are thus classified by Lord Coke, after the rude and inexact method of mental analysis which obtained in his times: (1) An idiot or a fool natural; (2) He who was of good and perfect memory, and by the visitation of God hath lost the same; (3) The lunatic, who enjoys lucid intervals, who some- times is of good and perfect memory, and some other times non compos mentis. (4) He that is so by his own act, as a drunkard. The insane person was in general styled non compos m,eniis.'' Blackstone a century ago used less pains at precise expression. " Madmen," he says, "or otherwise non compotes, idiots or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted with drunkenness — all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. To this class, also, may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animwn testandi, and their testaments are therefore void." « Idiots and lunatics were the two classes of persons to whom the 6. See Horn v. Pulman, 73 N. Y. that he will recover, and frequently 276 ; CJornwell v. Ricker, 2 Demarest, delirious besides, may yet make a 354; Wilson v. Mitchell, 101 Penn. valid will. 6 Dera. 123; Ayres v, St. 495; 162 Penn. St. 567, 29 A. Ayres, 43 N. J. Eq. 565, 12 A. 621. 715; § 73, supra; Kirsher v. Kirsher, And so may one who is dying of a 94 N. W. 846, 120 Iowa, 337 (ap- cancer, and emaciated, weak, and polexy) ; Stall v. Stall, 96 N. W. 196, irritable. Stoutenburgh v. Hopkins, 69 Neb. 653; Graham v. Deuterman, 43 X. J. Eq. 577. And see Kerr v. 75 N. E. 480, 217 111. 235, c. 7, post. Lunsford, 31 W. Va. 659, 8 S. E. 493 ; " Sufficiently sound health," setms 93 N. Y. S. 565 ; Oilman v. Ayer, 52 the expression for one's will to state, A. 1131, 63 N. J. Eq. 806; Gihon's rather than " sound health." Will, 57 N. E. 1110, 163 N. Y. 595. One who is in the last stages of 7. 4 Co. Rep. 123. consumption and under the delusion 8. 2 Bl. Com. 497. 99 § 86 LAW OF WILLS. [pART IL law formerly extended its protection on the score of mental un- soundness, as the classes most plainly told apart; for the former never had reason, while the latter had lost the reason they once l^ossessed. But it was gradually found that many more required such protection, whose symptoms of discrder, though mildly manifested without the violence or notable derangement or inter- mittent brightness which attended lunacy, had yet equal claim to be regarded as implying a loss, not the natural denial, of reason. A decline of intellectual power, of interest in their usual pursuits, of the capacity for comprehending their relations to persons and tilings, marked this phase of mental unsoundness. Instead, there- fore, of giving the word " lunacy " a scope large enough to include them, the modern disposition is to apply specific terms to describe various disorders whose range of reason is wider than that of the utterly imbecile and brute-born idiot. Monomaniacs or tliose having insane delusions, or, as it is somewhat inaccurately said, who are only partially insane, are examples of this milder type of insanity ; those, again, who are affected with a delirium like that produced by drunkenness, sufficient to drown the reason for the time being; persons grown childish from decay of the mental powers by reason of old age, whose affliction is styled senile de- mentia; and so on. These are the kinds of insanity with which our courts have chiefly to deal in practice when considering the question of testamentary capacity in any individual case. But, after all, the manifestations of insanity are subject to so great variation that we may not easily define them, nor the word " insanity " itself. § 86. The Same Subject: Insanity Defined. Insanity, the word humanely used at the present day to desig- nate all mental irn]>airmcnts inconsistent with soundness of mind, is more readily conclnded from the symptoms in a given case than defined on abstract principh-. High legal and medical authority defines it as the prolonged departure, without adequate cause, 100 CHAP. IV.] INCAPACITY OF IXSAXE PERSONS. § ^^ from the states of feeling and modes of thinking usual to the in- dividual in health.^ Insanity may involve bodily diseases, but the disease primary and predominant, where it exists, or the congenital defect, has its seat in the brain. § 87. Psychology of Mental Unsoundness, and Unity of the Dis- order. The foregoing definition of insanity is essentially one of med- ical jurisprudence, and medical science at the present stage of its progress has confessed itself unable to frame a more exact one. Psychologists have not classified mental unsoundness with success ; for the same names have been used 1x) denote quite distinct phe- nomena, according to the standpoint of observation ; and, moreover, the insane delusion, or the symptom, has been too long treated by them as a substantive disease, indicating that the mind may be unsound in some factor but sound in all the others.^ The fundamental functions or properties of the mind are stated as these three : feeling, will or volition, and thought or intellect ; this last including the powers known as perception, memory, con- ception, abstraction, reason, judgment, and imagination.^ These three functions are inter-dependent, and aff"ected together by men- tal disease ; so that instead of considering numerous insanities to which this division or subdivision might give rise, we should consider that insanity, while flitting, perhaps, from function to function, or spreading over the mind, is but one disease capable of manifesting itself in various ways.^ 9. Bouv. Diet. " Insanity; " 3 Curt. disintegration, and to treat the mind Ecc. 671. as a unit, which, whenever diseased, 1. " It is the latter tendency, in however distinctively the disease may fact," observes a sound writer on this manifest itself, is diseased as a subject, " that has, more than all whole. 1 Wharton & Stille Med. Jur. other causes, tended to lower the au- § 305. thority of psychology with the 2. Bain Mental and Moral Science; courts." And he proceeds to state Sir Wm. Hamilton Metaphysics, that the weight of psychological opin- 3. 1 Wharton & Stille, Med. Jur. § ion is now to discard this process of 308. It follows that the doctrine of 101 § 89 LAW OF WILLS. [pART II. § 88. Courts apply Practical Tests without attempting Exact Classification. The various grades and types of insanity, however interesting they may be from in a philosophicial point of view, receive, on the whole, no very close practical consideration from our judges. Courts attempt no exact classification of the subject. In crim- inal cases they are governed by their tests of responsibility; and in civil cases by the amount of capacity shown in connection with the transaction in question. The whole proof in a given case (aided, perhaps, but not guided, by the opinion of voluntary med- ical experts) is laid usually before a jury, to determine, by weigh- ing it after a common-sense fashion, whether (supposing the crime to have been committed or the transaction performed by him) the person was at the time and in the act responsible or irresponsible, mentally capable or mentally incapable. § 89. Testamentary Capacity as applied in Tests of Mental Un- soundness or Coercion, Some have dwelt upon the expression " testamentary capacity " as though the test of mental soundness and unsoundness were an abstract one. The incapacity of infants, married women, aliens, and the like may, where the law recognizes its existence, be pro- nounced abstract or of general and absolute force; but whenever an issue of insanity or undue influence is presented, the question appears concrete rather, devisavit vel non; was that will the free and intelligent product of the testator's mind or not. One might, in a certain sense, be thought insane, and yet the mil should stand as a disposition untainted by his insanity ; ho might, on the other hand, be sane, and yet the will should fail, because he did not make it as a free agent. " Testamentary capacity " is not, perhaps, a happy term to use here, but out of deference to the courts we may '■ moral insanity " as something accountability, and yot render him wliicli may co-exist with mental san- capable of sound conduct in affairs, ity, HO as to relieve one of criminal is untenable. lb. § 531 et seq. 102 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 89a still employ it; with this qualification, that, excepting possibly in brutish types where reason is a blank, no ideal standard of capacity is offered for guaging the brain, but court or jury must determine whether a weak or diseased mind made in the given instance a normal disposition by testament or not. Even here, nevertheless, a general comparison of the various symptoms and forms of mental derangement which are exhibited in our testamentary causes will greatly assist the investigation and guide to a just conclusion. § 89a. Each Case should be tested by its own Facts, etc. On the whole it may be asserted that there is no particular de- gree of mental acumen to serve as the standard of testamentary capacity ; and that there is no precise formula in which judges are bound in that respect to charge a jury. Each case should be fairly decided upon its own facts and circumstances, and the rule of law is best stated after the approved general expression set forth already.* 4. Supra, § 68: Wampler v. Har- 259 111. 613 (special instruction de- rell. 72 S. E. 135, 112 Va. 635; Law- fining mental soundness disap- rence v. Steele, 66 N. C. 584. See proved). Brainard v. Brainard, 103 N. E. 45, 103 § 90 LAW OF WILLS. [pAET II. CHAPTER V. INCAPACITY OF IDIOTS^, IMBECILES, AND PERSONS DEAP^ I>UMB^ AND BLIND. § 90. Idiots are Incapable; What is Idiocy. Idiocy, which is insanity in its lowest type, since it presupposes a want of understanding from nativity, and allies its subject to the brute creation, is utterly inconsistent with the power to dispose by will, or indeed with mental capacity of any kind, or even in extreme cases with accountability for crime. We may not well define this condition; but an idiot is recognized by all intelligent persons who deal with him, and is a fit subject for the asylum, unless his own family will provide tenderly for his welfare and keep him secluded from society. Medical classification regards idiots of the lowest class as mere organisms, masses of flesh and bone in human shape, in which the brain and nerv^ous system can- not control the muscles, having neither the power of locomotion nor speech, and whose mental faculties are buried in darkness; fools, a higher class of idiots, who can partially command the voluntary muscles, and consequently have a considerable power of locomotion and animal action and imperfect speech, and whose reason glimmers faintly; and simpletons or the highest class of idiots, in whom the harmony between the nervous and muscular system is so nearly perfect that the powers of locomotion and ani- mal action are normal, and who have reason enough for their simple individual guidance, but not for their social relations.'^ Idiocy results either from congenital defect or from some obstacle to the normal development of the faculties in childhood, and is generally manifested by malformation of the head and brain, and a repulsive expression. Unfortunates of this class 5. Report of Dr. ITowo to the Maa- narliUHfitts lo^'i.slalure, cited in 1 Rtdf. WillB, 01. 104 CHAP, v.] INCAPACITT OF IDIOTS^ ETC. § 91 have been taught decent and proper habits, and may even be trained to some degree of efficiency in rude industrial pursuits ; but education has never fitted them for unpainful companionship with the intelligent part of mankind, for whose society animals like the dog or horse, from their lower but positive plane of intel- ligence, are naturally so well fitted^ while here the hidden pro- pensities of the human but unnatural brute suggest a constant source of danger. § 91. The Same Subject. Some of our earlier text writers, whose observations of mental phenomena could not have been profound, were at pains to discern some legal test of idiocy. Fitzherbert, perhaps the first of them, laid it down that if a person could not count twenty pence, or tell who were his father and mother, or how old he was, he was to be set down as an idiot ; but that if he knew and understood his letters, and could read by another man's teaching, he was not.^ But, as Lord Hale has correctly observed, all this may serve for proof, but it is too narrow for conclusion ; and idiocy is in any case a question of fact to be settled by all the proof and sometimes by inspection.^ Idiocy, on the whole, appears to be in strictness a natural sterility of mind, incurable from birth, and not the later peiwersion of a developed understanding; yet we should note that the lapse of an intelligent mind, through disease or decay, into a totally dark and benighted condition, is sometimes, in popular speech, included under this head, or, more properly, that of imbecility.^ 6. F. N. B. 532 B. And see 1 Redf. mestic experience what he asserted, 60; 4 Co. Rep. 122; Bac. Abr. when he stated that absolute de- " Idiots," etc. A. 1. mentia, involving an entire destruc- 7. 1 Hale P. C. 29; Hovey v. Chase, tion of the mental faculties, was a 52 Me. 304. consequence, by no means uncommon, 8. See 1 Redf. Wills, 61, which, of insanity, as a result often of some liowever, seems a careless use of the sudden shock, and that persons may word " idiot." But this distin- be rendered permanently insane and guished writer knew well from do- finally imbecile, by disappointment,, 105 § 9^ LAW OF WILLS. [PAKT II. The great characteristic of idiocy or utter imbecility is permanence with little or no variation, though it sometimes happens (as Dr. Lushington has observed) that an idiot will demonstrate a greater degree of excitement at one period than another.^ § 92. Idiots and Utter Imbeciles have no Testamentary Capacity. Idiots and utter imbeciles of every description, whether the want of understanding were produced at birth or in later life, are necessarily devoid of testamentary capacity/ Such persons may acquire a title in property by act of the law, but they cannot manage their own affairs, nor make a valid contract, nor of course bereavement, religious despair, and other severe shocks upon the nervous system. lb. 65, 66. 9. Bannatyne v. Bannatyne, 14 E. L. & Eq. 581, 590, 591. per Dr. Lush- ington. 1. Bannatyne v. Bannatyne, 14 E. L. & Eq. 581; 1 Redf. Wills. 61; Con- verse V. Converse, 21 Vt. 163, 52 Am. Dec. 58. So low is the order of intelligence and capacity for idiots that the diiH- culty ordinarily presented in contests over the will of a testator whose san- ity is at issue cannot be said to arise here. Cases of incapi'city where in- tellect is manifested to a very low degree may be dismissed from the present consideration. See e. g. the facts presented in Stewart v. Lis- penard, 26 Wend. 255. If the alUged idiot can be shown to have intelli- gently and without constraint or fraud performed acts of Imsiness (luring the period in which idiocy is rlainird to exist, he is no idiot at all. Bannatyne v. Bannatyne, 14 E. L. & Ef). 581, 16 Jur. 864, is a case in point. It was shown that the testa- tor kept a bank account, drew drafts properly upon it, and received the money alone in person. " Many acts of business," observes Dr. Lushing- ton while discussing these facts, " could possibly be done by a lunatic and the lunacy not detected; but it is scarcely possible to predicate the same of an idiot or an imbecile per- son. . . . Surely no idiot could have done this, for he must have exercised thought to go to the bank, memory and judgment as to the sum required; and moreover his conduct and ae- meanor could not at such times have been as described by the witnesses against the will, or, from the glaring colors in wliich his imbecility is de- picted, it must have been discovered, and the business could never have l)ocn transacted at all. ... To put these acts upon the very lowest basis on Avhich they can be placed, they do utterly disprove idiocy or imbecility. I will simply repeat, what I have al- ready said, that those who are af- flicted "with lunacy sometimes have the management of and can manage their pecuniary affairs, — an idiot never." 106 CJIIAP. v.] INCAPACITY OF IDIOTS^ ETC. 9-i a will ; nor are thcj held responsible for criminal acts ; in short, the civil disability of an idiot or utter imbecile is as complete as possible.^ § 93. The Same Subject illustrated. A jSTew York case aifords an instance of base mental condition, approximating idiocy, in one of whose incapacity those who planned for her property appear to have taken advantage.^ § 94. Persons born Deaf, Dumb, and Blind. Persons born deaf, dumb, and blind were long presumed by our 2. Dr. Ray and some other writers on medical jurisprudence define '' im- becility " as a form of insanity con- sisting in mental deficiency, either congenital or resulting from an ob- stacle to the development of the fac- ulties, supervening in infancy. Dr. Ray, "Insanity," 71; Wharton & Stille, § 314; Bouv. Diet. "Imbecil- ity." This is rather a narrow defini- tion for the law to stand upon, con- sidering the popular significance of this word; nor are the courts by any means so precise in its use. 3. Townsend v. Bogart, 5 Redf. (N. Y.) 93 (1881). An unmarried woman owning real estate of consid- erable value lived, after the mother's death in 1862, at the house of her cousin. Here she died in 1879, a lit- tle more than fifty years of age, hav- ing made the alleged will in 1869, signed by a cross, which left all to a member of the family, her cousin's daughter. This daughter was present when the alleged testatrix visited a lawyer's office, where the will was drawn, and was also present at the time of the alleged execution. It was this daughter's brother who wrote decedent's name around the cross. 10 As to the alleged testatrix herself, it appeared that she was a member of the Methodist church, and attended church and Sunday school regularly ; that she took care of her room and person, and could do some light housework and needlework. But she was not in vigorous health, was af- flicted with stuttering, uttered only short sentences, never learned to read or write, though she had attended school for three years, could not count more than ten, nor tell the time of day from the clock, nor add or multiply; had no idea of the value of property, or of money be- yond ten cents, was easily lost in familiar streets, had no understand- ing of what her estate was worth ; otherwise evinced a weak mind, being unable to attend to most of those simple things which persons of ordi- nary intelligence can perform; had two sisters, one of whom was in an insane asylum, and in 1871 was her- self adjudged an idiot. Upon this testimony the court refused to admit the will to probate. See also De Laveaga's Estate, 133 P. 307, 165 Cal. 607 (want of mental develop- ment). § 94: LAW OF WILLS. [part II. law to be idiots ; for the senses being the only inlets of knowledge^ and these, the most importaiut of them, being closed, ideas and associations were shut out from the mind/ It followed that no such person was capable of making a valid will.^ Down to a period not a hundred years remote this opinion widely prevailed, a contempt for physical infirmity, so long characteristic of the English race, giving emphasis to the hopeless condition of these unfortunates. Even the deaf-mute, so bom, whose eye was quick to obsen^e, has been remitted to the same rule of incapacity, for, though he might be intelligent, others did not commonly find him intelligible.® Infirmities such as these may be, and, we think, usually are, purely physical in their origin, involving no abnormal condition of the brain. But like a solitary prisoner of state, who pines for ^ears in a dark dungeon, one lapses into mental disorder, or his faculties become stunted and fail of their natural development, because sympathetic intercourse and tlie educating process are wanting. Particularly is this true of those born deaf, dumb, and blind ; for when disqualification comes through the failure of the- senses after the mind has developed, so that solitude is not vacancy, or where one at least of these three channels of social intercourse is left open, capacity ought more readily to be presumed than incapacity. 4. 1 Wrns. Exrs. 17; Rwinb. pt. 2, mere circumstance of being born deif § 4. pi. 2; Taylor Med. Jur. 690. 691. and dumb. "Perhaps, after all,'' 5. 2 Bl. Com. 497 states the inca- adds the Chancellor, " the presump- pacity firmly as to those born deaf, tion in the first instance is, that dumb, and blind. And as late as the every su:-h person is incompetent. It New York case of Brower v. Fisher, is a reasonable presumption, in order 4 .Johns. Ch. 441 (A. D. 1820), the to insure protection and prevent deaf and dumb by nativity were con- fraud, and is founded on the notnri- Bidered as prima facie insane until ous fact, that the want of hearing capacity was proved by special ex- and speech exceedingly cramps the ami nation. The decision under an powers, and limits the range of the inf|u<'Ht cleared, to be sure, the de- mind." fendant, because the presumption was 6. 1 Ucdf. Wills. .51. 52; 1 Wm«. overcome, and Cliancollor Kent re- Exrs. 17; I'.rower v. Fisher, 4 Johns. fuHC'd to deem him an idiot from the Ch. 441. 108 CHAP, v.] INCAPACITY OF IDIOTS, ETC. § 95 Deaf-mutes are found in our times as bright and intelligent as the average of mankind in any class, and the remarkable instance of Laura Bridgman has shown the humane world, since 1848, what training combined with sympathy can do to redeem one bom deaf, dumb, and blind from the reproach of idiocy.^ It should in truth, be set down, that, like the solitary captive in his dungeon, such beings have become mentally deranged in the past more from the want of an outlet than an inlet ; that the callousness or cruelty of the strong has proved their crushing misfortunte. For no one is so physically bereft of the senses, that mind, if there be one, cannot in some way respond to mind. § 95. The Same Subject : Unfavorable Presumption, if any, may be overcome. But the presumption of idiocy and testamentary incapacity in those born deaf, dumb, and blind was by the common law prima facie only, and might always be overcome by proof that the person had sufficient understanding; in which case he was at liberty to declare by signs a will, which, under present statutes, ought further to be reduced to writing, according to his wishes, and suitably executed.^ For one may execute a written instrument without seeing it or knowing how to write. Modern alphabets and codes make obvious the intention of the dumb, many of whom can express themselves on paper at this day as well as the average of society. It is by no means impossible, then, that one deaf, dumb, and blind should make a valid will ; ^ and that deaf-mutes or any others whose senses are not deficient beyond one or two of these infirmities may do so is clear.^ Deafness, though absolute, creates no incapacity. 7. Laura Bridgman was, at the In- American travel. Similar remark- stitution of the Blind in South Bos- able cases have appeared since then, ton, taught how to converse and even 8. See 2 Bl. Com. 497 and notes, to write. Her case and its success- 9. Richardson, J., in Reynolds v. ful treatment excited the astonish- Reynolds, 1 Spears, 256; Weir v. ment of European tourists about the Fitzgerald, 2 Bradf. (N. Y.) 42. middle of the nineteenth century, 1. 1 Redf. Wills, 51. 52; Brower many of whom described her appear- v. Fisher, 4 Johns. Ch. 441, per Chan- ance in their published books of cellor Kent; Weir v. Fitzgerald, 3 109 § 96 LAW OF WILLS. [pAET II. In short, it is doubtful whether the presumption of incapacity retains in our law any force whatever as to the deaf, dumb, and blind ; but if it does, very slight proof will dispel it, in any case where education has drawn out the imprisoned intellect.^ § 96. Persons Deaf, Dumb, or Blind, but not born so, presumed Capable. They who have maintained that the deaf, dumb, and blind are to be presumed incapable of testamentary disposition, appear to have confined this positive assertion to such as were born so. To suppose that from one or all of those infirmities a mind which has once reached discretion becomes prima facie disqualified is an insult to the afilicted. Deafness, dumbness, blindness may, to be sure, like a humpback or splay-foot, the loss of a limb or some incurable disease, or any other impediment to social enjoyment, produce in extreme cases moroseness and distortion of character; but the progress towards mental incapacity, if there be any, is usually very gradual. JSTor can we easily conceive of a person who is made a deaf-mute by causes which supervene the state of infancy; on the contrary, the disability thus manifested is partial only, unless indeed the sufferer should reach that last stage of general decay and exluiustion where the collapse of faculties, mental and physical together, makes it plain enough that reason has lost her throne.^ Instances may be found, fairly recent, in the reports, where the will of a blind and deaf person, made when he was more than a hundred years old, has been allowed probate."* Blindness, deaf- Bradf. (N. Y.) 42; 2 Bradf. 265; that of Lowe v. Williamson, 1 Potts V. House, 6 Geo. 324; Dieken- Green Ch. 82. And see Gombault v. son V. I'.lisset, 1 Dick. 268; Harper, Public Admr., 4 Bradf. 226; 134 N. Ke, 6 i\r. & Gr. 731. Y. 682, 126 P. 29; Purcell's Estate, 2. Gombault v. Public Admr. 4 128 P. 932, 164 Cal. 300; Geiger v. Bradf. (N. Y.) 226. Bardwell, 99 N. E. 582, 255 HI. 320; 3. Swinb. pt. 2, § 10; 1 Wnis. Exrs. Weir v. Fitzserald, 2 Bradf. 42. In 18. Gombault v. Puldic Admr., 4 Bradf. 4. Wilson V. Mitchell, 101 Penn. 226, it was held that where the tes^a- fii. 495, Nearly as strong a case is tor. a person of great intelligence and 1 10 CHAP, v.] INCAPACITY OF IDIOTS^ ETC. § 97 riess, or dumbness, in a case like this, and wlienever, in fact, the disability was not congenital, may still be competent as bearing upon the issue of mental capacity, of will or no will, but the in- firmity itself affords no presumption whatever of legal disqualifi- cation. § 97. Liability of Deaf, Dumb, and Blind to Imposition and Error. Aside, however, from the question of their capacity or in- capacity, it is evident that the deaf, dumb, and blind are peculiarly liable to error and imposition, not to add constraint, in making their wills, so often dependent are they upon others for expressing their last wishes, if not physically helpless besides. As to educated mutes who can read and write no great difficulty need arise. It would be desirable for one of this class to write out his will, or else the instructions to his scrivener; and in all respects he ought to express his wishes so that the witnesses to his testament shall understand him clearly. Where signs of under- standing and approval are made instead, the deaf and dumb code, now so common in conversation, seems a preferable method to mere motions whose meaning strangers surrounding him might fail to interpret intelligently. That mode of execution, in short, which is most intelligible to the outside world, as well as to inti- mates, fellow-sufferers, and deaf and dumb instructors, is the most prudent, on the whole, for making it clear that the will attested was the product, in all respects, of the testator's own mind.** acquirements, but totally deaf in his testator, in a reported case before declining age, had for a long time the English Court of Probate, was carried on communications with deaf and dumb. He made his will by others by their writing on a slate communicating instructions to an and receiving his answers orally, it acquaintance by signs and motions, was competent to perform the cere- These instructions were reduced to monies of executing his will in that writing: and the will was accord- mode. See § 137. ingly executed. The court requin d, 5. 1 Redf. Wills, 52; Swinb. pt. 2, however, an affidavit from the person § 10, pi. 2; 1 Wms. Exrs. 17, 18. A who drew the will, stating the nature 111 § 98 LAW OF WILLS. [pART II. § 98. The Same Subject : Wills of Blind Persons. One with an impediment makes, in fact, the most intelligible will where he avoids the uncertainty peculiar to that impediment. Thus the educated man, deaf or speechless, who writes or carefully reads to himself his own will, and makes the most of his sight, enters upon a disposition not likely to fail. The blind has his own corresponding precautions to take, and should naturally make the most of his other organs. In the old text-books of ecclesias- tical law, it was laid down that the blind person might make his oral or nuncupative will, but not a written one, unless the writing had first been read over before witnesses and duly acknowledged by the testator in their presence ; and the civil law following its own formula of capacity, was to much the same effect.® With nuncupative wills English and American courts have, of course, but little concern in modern times, as most wills should be written ; but our law is not at the present day so rigid with reference to the written wills of those deprived of sight. It is highly expedient, doubtless, that such a will should not be executed or witnessed without being first carefully read to the testator aloud. ^ Yet the testator's knowledge and approval of the contents being the main thing, wherever this is assured by adequate proof of some sort, the other requirement may well be dispensed with.^ Good reason might exist for keeping witnesses ignorant as to the contents of the will read to the testator which they are called upon to attest ; ^ but ir is not necessary to show even that the identical paper produced for probate was ever read over to the testator himself.-^ In short, of these signs and motions by which 7. FlDcham v. Edwards, 3 Curt, the instructions were conHiiunicated, 63; Weir v. Fitzgerald (N. Y.), 2 and ultimately refused to grant pro- Bradf. 42. bate of the instvunient. Owston, 8. 1 \^'ms. Exrs. 18; 4 Bur. Ecc. Goods of, 2 Sw. & Tr. 461. And see L. 60; 2 Cas. temp. Lee, 595; Mar- Geale, Re, 3 Sw. & Tr. 431; Moore v. tin v. Mitchell, 28 Ga. 382; 1 Redf. Moore, 2 Bradf. 261. Wills, 55; Axford, Re, 1 Sw. & Tr. 6. 1 Wms. Exrs. 18, 19; Swinb.pt. 540. 2, § 11. Fur the reason of the Roman 9. Wamphn- v. Wampler, 9 Md. law oil thi.s point, see Gaius, ii. 102- 540. 104; Inst. ii. 123. 1. Fincham v. Edwards, 3 Curt. 112 CHAP, v.] INCAPACITY OF IDIOTS^ ETC. § 99 the bliud testator's knowledge of the contents of the instrument may be inferred from the whole of the testimony, and the cir- cumstances attending its execution.^ His declarations made after the execution of the will are competent to show that he knew what provisions his will contained at the time he executed, and that the instrument, in fact, embodied just what he purposed it should.^ § 99. General Conclusion as to the Wills of the Deaf, Dumb, and Blind. In a case, therefore, of mere blindness, or other physical infirm- ity, if no allegation of deception, undue influence, essential error, or fraud of any kind is made or sustained, probate of the will should be granted upon satisfactory evidence that the testator knew and approved of the contents of the instrument. Our law does not prohibit the deaf, dumb, or blind from making their wills. Defects of the senses and bodily defects, or diseases in general, do not incapacitate if the testator possesses sufiicient mind to per- form a valid testamentary act. As for our present statute of wills, they do not, in any instance, insist upon the ceremonial of reading over the will- to the testator in presence of the witnesses, desirable as such a ceremonial might be, in case of the illiterate or those of very defective vision.* It is true that something more than the mere formal proof of execution is requisite to establish the validity of a will when, through the infirmities of the testator, his iriipaired 63, affirmed in 4 Moore P. C. 198; set forth. The Roman civil law on Lewis V. Lewis, 6 S. & R. 496; Hess'a the point of a blind man's will, ob- Appeal, 43 Penn. St. 73, 82 Am. Dec. serves Bradford, Surrogate, in this 551; Boyd v. Cook, 3 Leigh, 32; case, has not prevailed in England, Glifton V. Murray, 7 Greo. 564, 50 nor been incorporated in any of the Am. Dec. 411; Martin v. Mitchell, 28 statutes relative to wills. "The ob- Ga. 382. ject of requiring the will to bo read 2. Guthrie v. Price, 23 Ark. 396; to the blind man," he adds, ''was Day V. Day, 2 Green Ch. 551; Pick- doubtless to prevent fraud, the sub- ett's Will, 89 P. 377, 49 Oreg. 127. stitution of one instrument for an- 3. Davis V. Rogers, 1 Houst. 44; other, and to secure evidence, be- Hurleston v. Corbett, 12 Rich. 604. yond the mere factum of the will, of 4. In Weir v. Fitzgerald, 2 Bradf. the knowledge of the contents of the 43, 68, these doctrines are carefully identical will by the testator." 113 § 99 LAW OF WILLS. [pAKT II. liealth and capacity, or the circumstances attending the transaction, the usual inference cannot be drawn from the formal execution. In such a case, additional proof should be furnished that his mind accompanied the will, and that he was cognizant of its provisions. This, however, may be established by the subscribing witnesses or by evidence aliunde.^ It follows that, in the probate of wills executed by a blind, deaf, or dumb testator, there is no positive requirement that the wit- nesses should be able to depose that the testator was cognizant of the contents of the paper which he declares to be his will, and desires them to attest; ^ though there can be no question that the more prudent and proper course is for the disabled testator, by appropriate acts, to make that cognizance clear to them. Some of eminent authority appear still to regret the departure of that ancient injunction that the will of a testator who is blind or cannot read should be read over to him in the presence of wit- nesses before he executes it.^ But the liberal rule of the present day on that point is sensible, natural, and founded in practical experience. Even supposing the will to have been thus read over, cognizance does not necessarily follow; yet cognizance is the essential. At the same time, the force and justice of Jarman's observation under this head must be conceded : " That, in propor- tion as the infirmities of a testator expose him to deception [or, we may add, to material error], it becomes imperatively the duty, and should be anxiously the care, of all persons assisting in the testamentary transaction, to be prepared with the clearest proof that no imposition has been practiced [or error incurred]." ^ With the loss or impairment of one faculty we are led to depend more upon the other; one who is blind becomes more alert with his hearing, while one who is deaf grows to use his eyes with quick vigilance. 5. lb. See c. ix. 7. See 1 Redf. Wills, 58. 6. 1 Redf. Wills, 57; Fincliara v. 8. 1 Jarm. Wills, 34. Edwards, 3 Curt. 63; Weir v. Fitz- fc'erald, 2 Eradf. 42. 114 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § 100 CHAPTER VI. LUNACY AND GENERAL MENTAL DEEANGEMEITT. § 100. Scope of Present Chapter; Lunatics and Others of Men- tal Unsoundness in the Medium Degree. Our endeavor in the present chapter is to consider the incapacity of those insane persons whose mental development is higher thaii that of the idiot or imbecile, but lower than that of the mono- maniacs, so called, the delirious, and the feeble-minded, of whom it can by no means be predicated that they are incapable at all. Mental unsoundness in the medium degree gives the scope to this chapter. At the outset, however, we shall admit that the finer attempts to classify and describe the various types of insanity arc by no means satisfactory; that the forms and symptoms under which mental derangement manifests itself are so subtle and diver- sified, varying in fact, in different stages of social progress, run- ning like a mountain brook now above ground and now under it. as to baffle the most wary and skilful of expert observers ; and that one habit of classification has been superseded by another, without arriving at tests final and unerring. Insanity, to define that word, settles, as we have already indi- cated, in the opinion of the best medical men, into a comparison of the individual with himself and not with others ; that is to say, some marked departure from his natural and normal state of feel- ing and thought, his habits and tastes, which is either inexplicable or best explained by reference to some shock, moral or physical, or to a process of slow decay, shows that his mind is becoming diseased and disordered. Perhaps the seed of hereditary malady is germinating within him ; perhaps the pressure of some sudden calamity affecting his future life and prospects, or some appre- hended danger, is too great for the brain to bear up ; its walls give way to the strain, and those most intimate with him, and not 115 § 101 LAW OF WILLS. [pART IL seldom the individual himself, will be found conscious that somo sort of mental derangement has taken place.^ § 101. The Same Subject. Lunatics and idiots constituted formerly the only two classes of which the courts took cognizance when called upon to protect per- sons who were mentally deranged. To idiots who were supposed never to have had reason, applied the term dementia n^turalis; but to lunatics dementia accidentalis, for their condition involved a loss by mischance of the reason they had once possessed. Hence, lunacy embraced in the broad sense all mental unsoundness not congenital, all, in a word, except idiocy. But this imperfect clas- sification has within a century been discarded. For imbeciles of the lowest order, though accidentally demented, may well be graded with the idiot or natural fool ; while lunacy, on the other hand, falls so far short of describing the second grade of insanity that a resen^ation of " others non compotes " or some such expres- sion became needful ; for which reason a new term, " unsoundness of mind," was introduced, which, medical experts tell us, has never been very clearly defined.^ 1. Dr. Ray, Insanity. 71 et seq.; cast. But the moon illustration has Dr. Gooch in 43 London Quarterly obviously no fitness for a great many Rev. 355. And see 1 Redf. Wills, 67, of the milder examples of insanity, 68. where, in fact, no violent derange- 2. Lunacy, as the word strictly ment is exhibited, no periodical ebb imports, was a sort of intermittent and flow of madness, no lucid inter- or tidal insanity, so to speak. The vals when reason resumes her sway. deranged mind, in such cases, was In these latter cases a loss of intel- supposed to be influenced by the lect, feebleness of will, a perversion moon, or at least the disorder was of tastes, habits, and character, and most violently manifested at recur- an incapacity, more or less marked, ring periods, and by regular phases. to apprehend the true relation of •Anotlier phenomenon attending it things, constitutes essentially the was that of lucid intervals, when mental disorder. Gooch, 43 Lond. the mind seemed to .shine out brightly Quart. Rev. 355; 3 Cert. Ecc. 671; like the full moon emerging from a 1 Whart. & Stille Med. Jur. §§ 61, cloud when the .sky is partly over- 744. 116 CHAP. VI.] T^rNACY AND MENTAL DERANGEMENT. § 101 § 102. The Same Subject. Illusions may l)e a proof of unsound mind ; and perversion of judgmenl; is also found here.^ § 103. Attempts of Experts and Others to Classify Insanity. That the task of classifying the different forms of insanity is a -formidable one appears in the greatly differing results which the best of medical experts thus far afford. Tests of causation, symptom and order of development, all of which have their un- doubted uses in the study of mental disease, are not unfrequently confounded in the most arbitrary manner.^ But no hypothesis, 2a. See 1 Redf . Wills, 67, 68 ; Tay- lor Med. Jur. 629. 3. Among examples of analjsis the most simple and philosophical, two, however, may be selected. The first is that of Casper and Liman, which classifies under two heads: (1) In- sanity in its progress, including de- spondency, melancholy, excitation, mania, as among the various forms in which this progress exhibits itself; (2) Insanity in its results, including imbecilit.y dementia, and fatuity. 1 Wharton & Stille Med. Jur. § 310. The second analysis is by Dr. Ray, who adapts to his purpose the old division of natural and accidental insanity, and appears to restrict " imbecility " still to such abnormal types as are referable to birth or early years. See supra, § 92. He arranges all the various disorders in- cluded in the general term insanity under two divisions, founded on two very different conditions of the brain; (1) A want of its ordinary development; (2) Some lesion of its structure subsequent to its develop- ment. " In the former of these di- visions," he adds, " we have idiocy and imbecility, diff'ering from each other only in degree. The various affections embraced in the latter general division may be arranged under two subdivisions, mania and dementia, distinguished by the con- trast they present in the energy and tone of the mental manifestations. Mania is characterized by unnatural exaltation or depression of the fac- ulties, and may be confined to the in- tellectual or to the effective powers, or it may involve them both, and these powers may be generally or partially deranged. Dementia de- pends on a more or less complete en- feeblement of the faculties, and may be consecutive to injury of the brain, to mania, or to some other disease; or it may be connected with the decay of old age." Dr. Ray Insan- ity, 71; 1 Wharton & Stille, § 314. Both of these modes of classifica- tion are commended by writers on this branch of jurisprudence; but, after all, the chief advantage that they afford is to medical men and psychologists, whose positive sanc- tion has not been accorded to either analysis. See these modes of classifi- 117 § 104 LAW OF WILLS. [pART II. according to sound modern authority, can be constructed which will meet with exactness every possible case of mental unsound- ness that may come before the courts.'* § 104. Common Symptoms or Manifestations of Insanity. The physiognomy of the person, his entire exterior, his gestures, his eyes, his words, the first impression produced upon him by the appearance of a physician, all these aid at once to detect whether he is insane, or bona fide sane, or cunningly pretending insanity. The form of the skull is often found peculiar in every description of insanity, but rarely does marked malformation ap- pear save as to idiots and the lowest type of imbeciles. Physical condition, though not necessary to prove insanity, since insanity may exist while the bodily functions are normal, or vice versa^ is often an important factor of proof, and the more so because such conditions cannot be feig-ned ; as for instance, nervous disturb- ances, sleeplessness, an irregular pulse, peculiar secretions, besides which, hereditary tendency and matters of temperament, disposi- tion, and age, and the like, call for medical attention. One's con- versation and deportment, his writings, his prior history in gen- eral, all bear upon the question of sanity or insanity, when the observer desires to form a conclusion. So, too, the nature of the act or trausaetion, suah as its insensibility, its incongruity, its mo- tivelessness, and the person's apparent forgetfulness of it, his fail- ure to profit by or escape from its consequences. All of these manifestations of insanity medical men take pains to observe in their diagnosis of a case.® A change of moral disposition is one of the first symptoms, other than physical, with which insanity as a disease usually makes its appearance.^ cation with others detailed in 1 Jur. §§ 345-380, where the subject is Wharton & Stille Med. Jur. §§ 310- treated at length from tlie inodico- 3H"). legal standpoint. 4. 1 Wharton & Stille, § 318. 7. E.\treme irritability, pronncss 5. Svpra, § 84. to anger, suspicion, concealment, ob- 6. See 1 Wharton & Stillo Med. stinacy, and perverseness are com- 118 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § 106 § 105. The Will of a Lunatic or one Mentally Diseased is In- valid. !N"ow, as to wills more especially, and the testamentary incapacity of persons who are lunatics or mentally diseased ; in other words, the usual cases embraced under the head of general insanity, not congenital. While the insanity exists, the testament of such a person is not good, because every testament should be the product of a sound and disposing mind and memory.^ But if the disease be not incurable, a state of mind may exist during which one's voluntary disposition may deserve to stand as a normal one. And the mental disease in a patient may so advance or recede that at one stage he might be called capable, at another incapable, while at any stage all the circumstances surrounding the testamentary act would desen'e a patient consideration. § 106. Effect of Restoration to Health, and Intermittent Insanity. If the disease, like any sickness or disorder, ends in a complete restoration to normal health, the person, being no longer non compos, becomes capable once more of making a will. But com- plete restoration is less common than a cure which leaves the fac- ulties -still impaired and liable, through feebleness of intellect, volition, or moral sense, to unsound operation and susceptible to evil influences. An intermittent insanity, moreover, is observable mon. In regard to the affections, ulties not all are uniformly in an r,b- various abnormal impulses and incli- normal state; on the contrary, some nations are observed; such as fond- functions occasionally improve, thus ness of or aversion to particular per- producing a complex state of madness sons, without any special reason; on the one hand, and of wit, rcflec- disposition to exercise cruelty, mur- tion, and shrewdness, on the other. derous desires, a wish to commit 1 Wharton & Stille Med. Jur. 3d Ed. arson, or to steal. Memory is gen- § 361. erally good in reference to things 8. Swinb. pt. 2, § 3; 4 Rep. 123b; occurring during the disease, or to Kemble v. Church, 3 Hagg. 273. persons with whom the patient was But, of course, a will is not re- then connected, but defective or mis- voked by the subsequent insanity of taken as to things which occurred the testator. Swinb. pt. 2, § 3; 4 previously. Of the intellectual fac- Co. 61b; Revocation, post. 119 § 107 LAW OF WILLS. [pAET II. in some cases, not merely in the sense of a transition from insane frenzy and delirium to insane repose, but so that the mind beams out clearly once more, so to speak, from the surrounding clouds, sometimes, but not always, with a lasting radiance sufficient to disperse them. For reason, when thrown from her seat, struggles almost instinctively to recover it before succumbing to adverse cir- cumstances, as the swimmer who is swept down a current reaches out convulsively for rope or spar until despair overwhelms him. In either instance, the tenacious hold upon whatever offers may save the life or the reason, yet that hold will perhaps be lost again. § 107. Lucid Intervals. Of that shining out through the clouds, as it were, the reports have had much to say in dealing with lunatics, whose mental con- dition suggested to those who watched them the peculiar phases and solitary wanderings of the moon. In the first stages of in- sanity particularly, and until the malady becomes incurable and confirmed, the attacks are to some extent intermittent, occurring at regular or irregular intervals, as the case may be, and accom- panied by alternate paroxysms and relaxations. But, as an emi- nent writer observes, " the term ' lucid interval ' has acquired a kind of technical import in legal language, and is not in that sense applicable to this intermittent character of the disease." ® Some eminent psychologists deny the possibility of lucid inter- vals, as our courts define that phrase.-^ But there seems no good reason to doubt that such a condition of mind may exist ; for many examples, besides that of George III., serve to remind us that one who loses his reason may be restored to apparent health; and yet at some later date, perhaps not for years, relapse into clear in- sanity under the pressure of age or harassing experience. This, perhaps, is drawing the line of lucid intervals more boldly than the phrase assumes; but if the bold lines are visible, the finer ones 9. 1 Rcdf. Wills, C3. 1. See 1 Wharton & Stille Med. Jur. §§ 744-747. 120 CHAP. VI.] LUNACY AND MENTAL DEIiANGEMENT. § lOh doubtless exist, tliouglit tiie laymaii cannot trace them so clearly. Tlie lucid interval involves, in general, a restoration of reason, con- sciousness, and insight sufficient for performing certain intelligent acts and assuming at least a modified penal responsibility; but in the more delicate shades of the malady, medical science confesses that the mind is not entirely clear, nor is the patient quite the capable person that he was before he became insane.^* § 108. Lucid Intervals, as distinguished from Mere Abatement of Mania, etc. Medical men of authority have distinguished between a lucid interval and the mere remission of mania. " By a lucid interval, pays Dr. Taylor, " we are to understand a temporary cessation of the inasnity or a perfect restoration to reason. This state differs entirely from a remission, in which there is a mere abatement of the symptoms.-' ^ And again he observes, more cautiously, that nothing more is intended by lucid interval than that the patient shall become entirely conscious of his acts and capacity."^ Other writers eminent in medical jurisprudence have attempted a closer grade of the different kinds of improvement or interruption, vary- ing in order as insanity abates.* Distinctions so fine as these are hardly admissible in judicial administration. But to take the lucid interval in its wider legal acceptation, there is good ground for recognizing often a certain capacity for civil transactions, a certain responsibility, in one who has been insane, even though his restoration to mental soundness at the particular stage of action, may not, upon a full review of his life, be pronounced perfect. Medical jurists of established re- pute themselves admit that even though, in an absolute diagnostic point of view, they prefer to reject the lucid interval theory, and believe in the continuity of the insane malady, they still think that one who is deranged can perform certain acts with a perfect la. lb. 3. lb. 2. Taylor Med. Jud. 651; 2 Redf. 4. 1 Wharton & Stil^e, § 747; Rush. Wills, 108, 109. on the Mind, pp. 162-164. 121 § 109 LAW OF WILLS. [pART II. knowledge of cause, and can even exercise his intelligence, pro- vided that lie is placed under the influence of certain protective conditions.'' § 109. Lucid Intervals in Cases which involve Testamentary Capacity. The admission of medical jurists just not^d is sufficient for the legal theory of lucid intervals which we find practically applied by our courts, in cases which involve the issue of testamentary capacity. Here, let us observe, although the insane person himself has passed beyond mortal jurisdiction, and the issue must be de- termined without him, the whole range of his life and the circum- stances of his death assist the diagnosis. " Lucid interval " has here no fine-drawn significance ; but the legal idea is that the in- sane person's mind, though not positively and absolutely restored to normal health, was at least capable, at the time of the testament- ary act, of performing that act, and did so with independence and intelligence sufficient to justify the conclusion that his will should be sustained as a valid one. One lately insane who has fully re- covered his reason once more may unquestionably make his will like any other person sui juris; but the law recognizes a mental condition less complete — one which falls short of a plain cure, and yet should be distinguished from that condition where the patient, though calm, is still insane and incapable. " By a per- fect interval," says Lord-Chancellor Thurlow, " I do not mean a cooler moment, an abatement of pain or violence, or of a higher state of torture, a mind relieved from excessive pressure ; but an 5. " Thp r(«:ulating discipline of an of the extent of the delirium at the asylum," wisely observes one writer, time, and the relations existing be- " tends greatly to this result, and twccn the action and the dcliri;us therefore it is not astonishing if one conception. So, though not admitting insane can perform certain civil acts the existence of a lucid interval, we of a simple character, and may con- still believe that the madman m'y sent to a division of property, or be placed in a situation tliat permits even authorize a mairinge. Tlic him to appreciate the action de- legality of tlie act is essentially sub- manded of him." 1 Wliart. & Stille ordinate to a previous appieciation IMed. Jur. 3d Ed. § 745. 122 <:HAP. VI.] LUNACY AND ISIENTAL DERANGEMENT. 110 interval in which the mind, having thrown off the disease, had recovered its general habit." ® This figure is convenient to enable laymen to distirLguisih the conditions ; but the definition does not, or should not, imply that one must be absolutely restored to normal soundness, for the time being, in order to make a valid testament. The faculties of the mind are indeed restored sufficiently to enable a testator to comprehend soundly tlie business in which he is en- gaged ; but he may still be laboring under extreme feebleness, from the effects of the disorder; it may be highly probable, moreover, that the paroxysm, the violent symptoms, will recur; and his res- toration may be to the disposing state or mind, but not to a state so healthy as before.^ § 110. Will may be established as made during a Lucid Interval; Burden of Proof. The will of a person who was at some period insane may be 6. Attorney-General v. Parnther, 3 Brown C. C. 444. See Eden's note, ib. 445; 11 Ves. 11, commenting upon Lord Thurlow's definition. Upon this subject of lucid inter- vals Bradford, Surrogate, in 1857, observed with much force and discre- tion in Gombault v. Public Admr. 4 Bradf. (N. Y.) 226, 238, as follows: "Among the most mysterious of the phenomena of the human mind, is the variation of the power and orderly action of the faculties, under difl'er- ent circumstances and conditions, and at different times ; and espec- ially mysterious is the oscillation from insanity to sanity, the rational power often fluctuating to and fro, until reason ultimately settles down firmly upon her throne, or falls, never again to resume her place in this life. Without speculating upon this interesting theme, it is sufficient 12 to say that the law recognizes the fact established by experience, and does not hesitate to ratify the valid- ity of a transaction performed in a lucid interval; though it is exacting in its demands, and scrutinizing in its judgment, of facts adduced to ex- hibit and demonstrate intelligent ac- tion at the time of the event under investigation. The princip'e is thus stated in the Institutes : Furiosi autem si per id tempus fecerint testa- memtum quo furor eorum intermissus est, jure testati esse videntur. (Quibus non est permissum facere testamentum, lib. 2, tit. 12, § 1.) And it has been fully admitted in its broadest extent in the ecclesiasti- cal courts. There can be no doubt that during an intermission of the disease the testamentary capacity is restored." 7. 1 Redf. Wills, 113; Hall v. War- 3 § 110 LAW OF WILLS. [pART II. established in probate bj overcoming any presumption of his in- capacitij at the date of execuition; and the force of such a pre- sumption, or its existence at all, depends upon differing circum- stances to be dwelt upon hereafter.^ If the testator, once insane, has been restored to perfect soundness, his will deserves as favor- able consideration in the court of probate as though he had never lost his reason.^ But where a state of habitual insanity is shown, continuous and chronic, the presumption gathers great force that any will which such a person may have executed is tainted or dis- colored by his insanity, and consequently cannot operate/ And unquestionably the state of insanity once clearly developed in the patient, there is much reason to apprehend that the disorder may again recur, though disappearing for a season. If, then, not- withstanding any adverse presumption, it can be established that the party afflicted habitually by mental unsoundness was wholly cured when he made his will, or, much less than this, that the testamentary disposition took pla^e while there was an intermission of the disorder, or, in other words, during a '' lucid interval," the will should be upheld. There are English cases which thus sustain wills made during a lucid interval, subject to the unfavorable presumption against capacity which must first be overcome.^ American cases are found of the same tenor.^ ren, 9 Ves. 611, per Sir William Symes v. Green, 1 S\v. & Tr. 401; Grant; Holyland, Ex parte, 11 Ves. Nichols v. Binns, 1 Sw. & Tr. 239. 11. In C'artwright v. Cartwright, 1 8. Post, c. 9. Phillim. 100, Sir W. Wynne thus 9. Snow V. Benton, 28 111. 306. states the principle: "If you can es- 1. See Hix v. Whittemore, 4 Met. tablish lliat the party afflicted hab- 545; Steed v. Galley, 1 Keen, 620, itually by a malady of the mind has 626; Wliite Home v. Haeg, 68 N. intermissions, and if there was an in- E. 568, 204 111. 422; 105 N. W. termission of the disorder at the 377, 129 Iowa, 93; Keely v. Moore, time of the act, that being proved, is 196 IT. S. 38, 49 L. Ed. 376. sufTicient, and the general habitual 2. Hall V. Warren, 9 Ves. 611; insanity will not affect it; but the Holyland, Ex parte, 11 Ves. 11; 1 efTeot of it is this — it inverts the order Wms. Exrs. 21, 22; White v. Driver, of proof and of presumption: for, 1 Phillim. 84; 1 J.-irin. Wills, 3f) ; until [imof of habitual insanity is 121 <:HAr. VI.] LUNACY AND MENTAL DERANGEMENT. § 111 § 111. Lucid Intervals; Clear and Satisfactory Proof required. But clear and satisfactory proof should be required that the person habitually insane made the will in question intelligently and freely, during a lucid interval, where this and not a complete recovery is to be established. The authorities above cited are quite harmonious in this conclusion.* Such proof, it has been well observed, is extremely difficult, for this reason, among others, that the patient is not imfrequently rational to all oiutward appearance without any real abatement of his malady.^ On the other hand, if the deceased was subject to attacks producing temporary in- capacity, and was at other times in full possession of his mental powers, such attacks may naturally create in those who only hap- pened to see him when subject to them a strong opinion of his permanent incapacity. These considerations, while they tend to reconcile the apparent contradictions of witnesses, render it neces- sary for the couit to rely but little upon mere opinion, to look at the grounds upon which opinions are formed, and to be guided in its own judgment by facts proved, and by acts done, rather than by the judgment of others.® The standard of mental capacity which this proof should estab- made, the presumption is, that the Dec. 701; 118 La. 695, 43 So. party, like all human creatures, was 281; Council v. Mayhew, 55 So. 314 rational; but where an habitual in- (Ala.) ; Murphy's Estate, 116 P. sanity in the mind of the person 1004, 43 Mont. 353; Norton v. Clark, who does the act is established, then 253 111. 558, 566, 97 N. E. 1079. the party who would take advantage 4. Cases cited in preceding section; of the fact of an interval of reason Sir John Nicoll in White v. Driver, must prove it." 1 Phillim. 88. 3. Gombault v. Public Admr., 4 5. Brogden v. Brown, 2 Add. 445. Bradf. (N. Y.) 226; Halley v. Web- 6. These prudent observations are ster, 21 Me. 461; Brock v. Luckett, made by Sir John Nicoll, in Kindle- 4 How. (Miss.) 459; Harden v. Hays, side v. Harrison, 2 Phillim. 459, and 9 Penn. St. 151; Gangwere's Estate, in other cases cited, 1 Wms. Exrs. 14 Penn. St. 417 , 53 Am. Dec. 554 ; 22 ; also by Tindal, C. J., in Tatham v. Cochran's Will, 1 Mont. 263; Goble Wright, 2 Russ. & M. 21, 22; and by V. Grant, 2 Green Ch. 629; Lucas v. Lord Langdale in Steed v. Galley, 1 Parsons, 27 Geo. 593; Chandler v. Keen, 620. Barrett, 21 La. Ann. 58, 99 Am. 125 § 112 LAW OF WILLS. [pART II. lish is, as we apprehend, the usual one favored by the later cases and set forth already : namely, capacity on the part of the testator sufficient to comprehend the condition of his property, also his re- lations towards the persons who are or might be the objects of his bounty, and the scope and bearing of the provisions of the willJ And the test constantly recurring is whether one's acts correspond to those when in his normal sane condition."^ § 112. Circumstances Favorable to Proof of Lucid Interval; a Just and Natural Will. It is a very favorable circumstance that a will whose execution is claimed to have taken place during a lucid interval appears just and natural in its provisions, so that injury cannot be done by admitting the instrument to probate ; and conversely, the harsh and unnatural will of one who was prima facie insane at its exe- cution may readily be presumed the offspring of a mind still clouded hj the disorder. This, we have seen, is a maxim of much wider scope for doubtful cases of mental capacity.^ The English case of Cartwright v. Cartwriglit,^ decided by Sir William Wynne and affirmed on appeal, is in point. The testatrix had early in life been afflicted with mental disorder. She afterwards was supposed to have recovered and carried on a house and establishment of her own like any rational person ; but for several months before mak- ing her will and afterwards, many of the worst symptoms of in- sanity were manifested; and at the date of its execution, so wild and agitated was her manner that, when the will was offered for probate, the survivor of the attesting witnesses deposed quite unfa- vorably as to the sanity of the testatrix. The attending physician, it appeared, had kept his patient from using books and writing materials, but yielded at last to her clamorous importunity for pen, 7. F!upra, § 68. One may be con- when competent, should stand. 13 fined in an insane asylum, from time N. Y. S. 255. to time, for some brain disease, and 7a. 144 N. Y. S. 174. released as his condition improves; 8. >^upra, §§ 77, 78. and the will of such a person, made 9. Cartwright v. Cartwright, 1 Pliillim. 122. 12G CHAP. VI.] LUNACY AND MENTAL DER.\NGEMT?^;T. 112 ink, and paper, and lessened her hands, which had heen tied up; whereupon she sat down in her room and wrote; tearing up several pieces of paper and throwing them into the fire, pacing the room meanwhile in a wild and disordered manner. The will was writ- ten out wholly by herself and she placed her seal to it very care- fully. A reasonable inference from the whole testimony appears to have been ithat, impressed with the uncertainty of life and rea- son, she had earnestly resolved to make her will, and that such being her mental purpose, the experiment of keeping writing ma- terials out of her reach, instead of soothing her, threw her into great agitation. At all events, the eminent judge sustained the will, remarking very properly that the court did not depend on the opinions of the witnesses but on the facts to which they de- posed.-^ The testament in question was perfectly proper and nat- ural and conformed to what the affections of the testatrix were proved to be at the time, and her executors and trustees were very discreetly appointed.^ 1. Cartwright v. Cartwright, 1 Phillim. 90. 2. lb. Upon the rational character of the present testamentary disposi- tion, Sir Wm. Wynne dwelt very strenuously in the course of his judg- ment " The strongest and best proof that can arise as to a lucid interval," he observed, " is that which arises from the act iself of making the will. Tliat I look upon as the thing to be first examined, and, if it can be proved and established that it is a rational act rationally done, the whole case is proved. What can you do more to establish the act? be- cause, suppose you are able to show the party did that which appears to be a rational act, and it is his own act entirely, nothing is left to pre- sumption in order to prove a lucid interval. Here is a rational act ra- tionally done. In my apprehension, where you are able completely to es- tablish that, the law does not require you to go farther." This statement he fortifies by the following citation from Swinburne: "The last observa- tion is. If a lunatic person, or one that is beside himself at some times, but not continually, make his testa- ment, and it is not known whether the same were made while he was of sound mind and memory or no, then in case the testament be so conceived as thereby no argument of frenzy or folly can be gathered, it is to be presumed that the same was made during the time of his clear and calm intermissions, and so the testament shall be adjudged good, yea, although it cannot be proved that the testator useth to have any clear and quiet in- termission at all; yet, nevertheless. 127 LAW OF WILLS. [PAET IL Other instances, English and American, may be adduced where the will of a person habitually insane, has been sustained as the product of a clear and calm intermission or lucid interval on proof most especially that the disposition was a just and natural one, in all respects.^ And there is no conclusive reason why the will of a person habitually insane might not stand under such circum- stances, even though he executed it while confined in a lunatic asylum/ On the other hand, the will of one known to be mentally un- sound, has been refused probate, notwithstanding circumstances of scrupulous care on his part in framing and executing the instru- ment, where the disposition appears to have been absurd, weak, or unnatural ; as in the case of an insane person who falls indiscreetly in love with a chance acquaintance, and straightway makes his will I suppose that if the testament be wisely and orderly framed, the same ought to be accepted for a lawful tes- tament." Swinb. pt. 2, § 3, pi. 14. Cartwright v. Cartwright was well decided upon the facts. And there were other strong circumstances {vide next section) which strength- ened the conclusion in favor of the will. But later judges have ques- tioned very properly whether Sir Wm. Wynne did not use language somewhat too emphatic in approba- tion of a rational will. It is not to be supposed that the learned judge meant to assert that every rational act rationally done is sufficient to prove a lucid interval. It is the par- ticular manner in which tlie act was done in this case which led the judge to conclude that there was a lucid interval. Chambers v. Queen's Proc- tor, 2 t'urt. 447, by Sir H. Jennor I'lint. " Tliougli I cannot say I al- tugethor agree to tiiat dictum (of Sir Wm. Wynne), still it is entitled to great weight, and, to a certain extent, a rational act done in a rational manner, though not, I think, ' the strongest and best proof ' of a lucid interval, does contribute to the estab- lishment of it." Bannatyne v. Ban- natyne, 2 Rob. 472, 501, by Dr. Lushington. See also Nichols v. Binns, 1 Sw. & Tr. 239, per Sir C. Cresswell ; Gombault v. Public Admr., 4 Bradf. 226, 239. 3. See incident mentioned in Mc- Adam v. Walker, 1 Dow. 178, by Lord Eldon; 1 Wms. Exrs. 27; Williams V. Goude, 1 Hagg. 577; Chandler v. Barrett, 21 La. Ann. 58; Chambers V. Queen's Proctor, 2 Curt. 415; Gombault v. Public Admr., 4 Bradf. (N. Y.) 226; 64 A. 520, 215 Penn. St. 314; 31 So. 64, 106 La. 442. 4. Such was the case in Nichols v. Binns, 1 Sw. & Tr. 239. And see supra, § 81. 128 CliAP. VI.] LUNACY AND MENTAL DERANGEMENT. §1^3 for the sake of bestowing a generous legacy upon her.^ Wherever, in short, such will exhibits a decided perversion from the normal and natural disiposition, thoughts, aud feeling of the testator, while in his right mind, there is good reason to conclude it the offspring of insanity. 6 § 113. Other Circumstances Favorable to Proof of Lucid In- terval. There may be other circumstances leading strongly to the con- clusion that the will of one habitually insane which is presented for probate, was made in some clear or lucid interval. Thus, in Cartwright v. Cartwriglit, above stated, the testatrix not only made a fair and rational will, but prepared it wholly by herself in the seclusion of her own room ; and what was quite remarkable, wrote it out in a very fair hand, free from confused or absurd expres- sions of any kind, and without a blot or mistake in a single word or letter.^ These facts bore strongly in favor of the testamentary act; though, had the will itself been an unjust or foolish one, the accurate handwriting might have gone for little.^ Whatever shows a careful revision or preparation of the draft by the testator him- self is material in the same direction.* If, again, the will proportions the different divisions of one's complex estate with very prudent care and a just regard to all 5. Clarke v. Lear (1791), cited in structions for the will, and corrected 1 Pliillim. 90, 119; 1 Wins. Exrs. 27. the draft with his own hand; and 6. Beemer v. Beemer, 96 N. E. the instrument was admitted to pro- 1058, 252 111. 452; Council v. May- bate notwithstanding minor errors hew, 55 So. 314 (Ala.). But cf. § 77 shown, such as reciting his own age supra. as 75, when it was really 77, and 7. Cartwright v. Cartwright, 1 mistaking the order in which two of Phillim. 90. the daughters were born. See also 8. In Clarke v. Lear, supra, the Legg v. Myer, 5 Redf. 628, where it instrument was very accurately was shown that the testator took the written by the testator, and yet pro- instrument after it was read to him, bate was refused. and read it himself, pointing to cer- 9. Mairs v. Freeman, 3 Redf. (N. tain words which at first he was un- Y.) 181, is a case where it was able to decipher. shown that the testator drew the in- 9 129 § 115 I^W OF WILLS. [PAUT II.. the proper objects of one's bounty, this goes strongly towards prov- ing, at least temporary sanity in the testator; for it shows that his mind grasps comprehensively a large and intricate subject.^ Moreover, if reference to the testator's intentions, before his mal- ady, shows that the will was in furtherance of intentions he had declared while positively of sound mind, this may corroborate the theory of a lucid interval." And so, too, where the testator, sub- sequent to its execution makes intelligent recognition of the will and its provisions as though understanding it still to be the instru- ment which its face purports.^ § 114. Lucid Interval more easily established in Delirium, etc., than in Habitual Insanity. A lucid interval is more easily established in cases of delirium, such as a fever or dissipation produces, or where fluctuations arise from temporary excitement or from periodicity in the attacks of the disease, than in cases of habitual insanity.* § 115. Proof should be scrutinized where Mental Disease is In- sidious and Slow. In general, a will made in a lucid interval may be valid; but the facts establishing intelligent action should be shown, and as already stated, the nature and character of the instrument are of much importance to such an issue. Where a disease ultimately affecting the mind was insidious and slow in its development, and it may be suspected that before the testamentary act the patient 1. M'Adam v. Walker, 1 Dow, 178. of intimate confidence and affection, 2. lb.; ( oghlan v. rof,'lan, 1 Phill. bore in favor of presuniinf^ a lucid 00. interval in the testator, though the 3. This was still anotlier circum- court weighed all the testimony very stance shown in Cartwriglit v. Cart- fairly. Wright, 1 Pliillim. 90. In Gnmbault 4. Of delirium, in connection with V. Public Admr., 4 Bradf. 226, the the testamentary act. we sliall ppe:ik fact tiiat the contest was between the more fully in the next chapter. Brog- State, claiming an escheat, on the den v. Brown, 2 Add. 44.'); Uombault one hand, and parties, on the other, v. Public Admr., 4 Bradf. 226, 239;. w)k> stfHi.j to tlie decedent in terras Staples v. Wellington, 58 Me. 453. 130 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § US or those in charge of him apprehended mental derangement, there should be a careful scrutiny of a will made shortly before the symptoms of insanity were unmistakable. Here it is desirable to learn if possil)Ie whether the testamentary act in question was rational and natural and conformed to the views and wishes of the party when mentally sound and healthy.^ § 116. Doubtful Instances of Mental Derangement; Paralysis, Prostration, etc. " If no actual derangement or mental imbecility be found," observes Mr. Justice Washington, " it is not sufficient per se to assign a cause of derangement which might or might not have produced that effect. Paralysis, for instance, is sometimes a cause of mental derangement, and frequently it is not. If attended by apoplexy, or an affection of the nerves, it necessarily affects the mind ; but it frequently affects only the muscles, thereby producing bodily infirmity alone, and leaving the mind unimpaired. If the patient survives the stroke for any consider'able length of time, it may in general be concluded that it was simply a paralysis affect- ing the body only." ^ More than this, it may b© affi,rmed that great intellecitual and physical weakness or prostration, even though accompanied by a partial failure of mind and memory, is not of itself sufficient ground for setting aside a will, if there still remains sufficient mind and memory to bring the testator within the rule of testa- mentary capacity which we have already set forth.'' And whether this weakness or prostration arises from paralysis, or an attack of apoplexy, or heart trouble, or any other cause, the cardinal 5. Grombault v. Public Admr., 4 nor undue influence appears in proof. Bradf. (K Y.) 226. 6 Dem. {N. Y.) 123. And see 12 N. 6. Hoge V. Fisher, 1 Pet. C. C. 163. Y. S. 122. the case of a testator who 7. Supra, § 68. The will of a tes- fainted and lost consciousness, tatrix of feeble health and nervous through feeble action of the heart, temperament, subject to hysteria and then slept and awoke, feeling and of marked personal peculiarities much better, and executed his will, and personal prejudices, may be sus- See also, Campbell's Will, 135 N. Y. tained, where neither insane delusion S. 1086. 131 I llT LAW OF WILLS. [PAKT II. principle of testamentary capacity is always the same.* One mig'lit 'by a stroke of paralysis or aj)oplexy be rendered for a time unconscious, and incapable of mental action ; yet the mind so commonly rallies from a first shock in such cases that, should the patient months afterward make his will, habitual and continuous insanity ought not to be presumed to the disfavor of its probate.* So, too, may it be, where one suffers great pain at times, during his last sickness.^ Where one, after paralysis or some enfeebling disease, atcends to his business and manages his property with reasonable prudence and judg-ment, the inference of his renewed testamentary capacity must be very strong.^ § 117. The Same Subject illustrated: Mississippi Case. Ill a Mississippi will case, decided in 1840, insanity as devel- oped by paralysis was at issue. Twelve witnesses, many of whom had been acquainted with the condition of the testator's mind from March, when he was afSicted with a paralytic attack, up to the day previous to the execution of his will in December, testified to his insanity, and stated the health and conduct of the testator upon which they based their opinions : namely, palsy in the right side, leg, and face; a fondness for relating old anecdotes and scenes; forgetfulness of recent events; miscalling the names of men and things ; disconnection of ideas in conversation, and fre- quent transitions from one subject to another; the giving contra- dictory orders and shortly denying having given them ; impedi- ment in speech and irritability of temper, and incompetency to transact business. Four of these witnesses were physicians, three of whom had attended the testator from time to time, and ex- pressed the opinion that, from the character of the deceased, the testator could not have had a lucid interval. Five witnesses, on 8. Sec Jamison's Will, 3 Houst. 1. Blake v. Rourke. 74 Iowa, 519, 108, and other cases cited in Hall v. 38 N. W. 392; Benjamin's Will, 136 Don{?herty, 5 Houst. 43.5. N. Y. S. 1070. 9. Iri.sh V. Newell, 62 111. 196, 14 2. See 1 Con. (N. Y.) 373. Am. Rep. 79. ' 132 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § 118 the other hand, the draftsman of the will, and the subscribing witnesses to it, declared their opinions to be that the testator was of sound and disposing mind when he executed the will. He had walked the distance of a mile on that very morning. Some of these latter witnesses, who had seen the testator some time previ- ously, testified that an improvement in his health and mind had been going on. It was in proof that he conversed rationally and sensibly for four hours, on the day the will was executed, without making an irrational remark ; gave directions about his business ; dictated the will ; had it read to him, and portions of it twice ; conversed of early scenes ; did not miscall names nor talk in- coherently, but conversed intelligently and rationally about his own business, the monetary system of the country^ and other sub- jects. It was the opinion of all these witnesses that he was en- tirely competent on that occasion, to transact any of his own busi- ness, including the business in question. He spoke of an improve- ment in his health and of its having been thought that he was insane ; expressed gratification at seeing so many of his old friends on that occasion ; said he was about to arrange his business and wished them to converse with him and see if he were not of sound mind and competent, Weighing all this evidence carefully, the judge of probate held that the testator was of sound and disposing mind, and admitted the will accordingly ; and upon appeal, this judgment w^as sustained.^ § 118. The Same Subject: Other Ilustrations: Epilepsy, Apo- plexy, etc. It is more recently held in Illinois, that proof of periodical epileptic attacks, attended with convulsions, loss of consciousness and the other usual sequences of such attacks, or proof of tempo- rary pneumonia supervening the attack wntli fever and delirium, is not such proof of insanity as to create a presumption of its continuance until rebutted by proof.^ 3. Brock V. Luckett. 4 How. (1880). And see next chapter; God- (Miss.) 459. den v. Burke, 35 La. Ann. 160. 4. Brown v. PJggin, 94 III. 560 133 119 LAW OF WILLS. [part II. Epileptic fits are often, perhaps usually, very sudden, and in the earlier stages of the malady more especially, one may retain his faculties to the very moment of the attack. Upon all the evi- dence, therefore, a will was sustained in Wisconsin where the person having had an epileptic fit one day, sent for a priest the next, and in a few minutes after executing the instrument intelli- gently was seized with another fit, and died a day or two after- wards.^ § 119. Mental Condition nearly Contemporaneous with the Will, etc. Where one's mental condition appeared t-o his medical attend- ant suitable for the testamentary act, or the reverse, shortly be- fore or after the will was made, testimony to this purport should carry great weight.'' But after all, the real point at issue upon which such testimony bears, is the mental condition and the state of surrounding circumstances, at the precise time of the testa- mentary act.^ 5. Lewis's Will. 51 Wis. 101 the will was sustained, notwithstand- (1880). This was certainly a very close case, as there was reason for believing tliat the decedent Avas in a semi-comatose and nearly uncon- scious state when the will was signed; but it was drawn up, at least, under his intelligent direction. See, further, Foote v. f^tan- ton, 1 Deane (N. Y. ), 19 (an extreme ca.se where the will of a person subject to epileptic fits was admitted to pro- bate) ; Legg V. Myer, 5 Redf. (N. Y. 628. In Andrews, Re, 33 N. J. Eq. 514, the will of a woman made in the later .stages of pulmonary consump- tion was sustained against expert testimony tending to show that medi- cines such as she used would affect the brain. In McKean's Will. GG N. Y. S. 44, ing hemiplegia, Bright's disease, etc. Extreme physical suffering does not incapacitate, as where one cries from suffering pain when the will is exe- cuted; though crying without much provocation is a fact which might bear unfavorably in the will of a man, where mental unsoundness was at issue. Beemer v. Beemer, 96 N. E. 1058, 252 111. 452. 6. Dyer v. Dyer, 87 Ind. 13. Es- pecially would this hold true of an attending physician between whose regular visits, not distant, the will was made and executed. Gombault V. Public Admr., 4 Bradf. (N. Y.) 22G. 7. Harden v. Hays, 9 Ponn. St. 151; Gangwere's Estate, 14 Penn. St. 417, 53 Am. Dec. 554; 16 Oreg. 134 ■CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. 120 § 120. Suicide not Conclusive of Insanity. Suicide committed by the testator soon after making the will is not conclusive evidence, therefore, of insanity at the time when the will was made ; though as a fact in connection with other proof from which prior mental derangement might be inferred to the extent of incapacity, it should not be ignored.^ In a leading case under this head, the testator actually committed suicide on the morning after the day on which he made his will; and yet the will was admitted to probate.' Suicide is by no means the act of a person necessarily insane, but the murder of one's self, like the murder of another, may proceed from a sane and deliberate pur- pose; hence the chief value, of this proof consists in the corrobora- tion it affords in a given ease, when taken with other facts and symptoms, to the theory of mental soundness or unsoundness at the date of executino- the will.^ 127, 18 P. 6; Dole's Estate, 81 P. 534, 147 Cal. 188. And see the dis- crimination exercised by the court in this respect in Brook v. Luckett, 4 How. (Miss.) 459, as stated supra, § 117. 8. Taylor Med. Jur. 680, 681; 1 Hedf. Wills, 116; Burrows v. Bur- rows, 1 Hagg. 109; Duffield v. Mor- ris, 2 Harring, 375; Chambers v. Queen's Proctor, 2 Curt. 415; God- den V. Burke, 35 La. Ann. 160; 8 N. Y. S. 297; Koegel v. Egner, 54 N. J. Eq. 623, 35 A. 395; Tozer v. Jack- son, 164 Penn. 373, 30 A. 400; Roche V. Nason, 77 N. E. 1007; Chevaliier's Estate, 113 P. 130, 159 Cal. 161; Wilkinson v. Service, 94 N. E. 50, 2491 111. 146. 9. Chambers v. Queen's Proctor, 135 supra. The facts were similar in Duffield V. Morris, supra. 1. A suicide's will is entitled to probate, notwithstanding the old law of forfeiture. Bailey, Goods of, 2 S. & T. 156. A testator showed unjust sus- picions of his wife and children amounting to an insane delusion, about the time he made his will and affecting his disposition of property. These suspicions finally culminated in his killing his wife and inflicting mortal injuries on himself. The will was denied probate. Kahn's Will. 1 Con. (N. Y.) 510. Suicide committed after executing the will is evidence tending to show insanity. Frary v. Gusha, 59 Vt. 257, 9 A. 549. § 121 LAW OF WILLS. [PAET II. CHAPTER VII. DELIRIUM_, DRUNKENNESS^ AND DEMENTIA. § 121. Delirium of Disease and its Symptoms. WLat we call delirium, or the delirium of disease, is a form of mental aberration incident to fevers and sometimes to the last stages of chronic diseases. It is mostly of a subjective character, maintained by the inward activity of the mind rather than by out- ward impressions. But it resembles general mania or ordinary insanity so closely that the patient will often be removed to an insane asylum for treatment; and, indeed, the mental perversion which results is so nearly identical, in the two cases, that we can do little more than ascribe the delirium of disease to the march of a bodily disorder which storms the brain, and trust that as the fever subsides and health returns, the scattered senses will rally, as after a tempest, and reason reassume her supremacy. This febrile delirium comes on gradually, as medical experts have noticed, being first manifested by talking while asleep and by a momentary forgetfulness of persons and things in waJring. Fully aroused, the mind becomes calm and tranquil, and only as he becomes drowsy does the patient retire within himself again to encounter the wild troop of fantastical images which fatigue instead of resting the disordered brain. Gradually the mental disturbance becomes more intense, the intervals of consciousness diminish and then disappear, and those at the bedside may fathom to some extent from his raving, incoherent talk what apparitions his mind is contending with. The scenes and events of the past are vividly pictured ; nor is it unusual at this stage for the sick to recall some lost acquirement or talk in some forgotten language. As one returns to health and consciousness, however, scenes and sensations like these, on the whole painful and exhausting, fade in vividness, the tumult of the imagination subsides, sleep is more Cjuiet and refreshing, the judgment works out of the bewildering 130 CHAP. VII.] DELIRIUM^ DRUNKEI^NESS^ ETC. § 122 fancies ; and as convalescence advances, the patient remembers but vaguely the stormy scene through which he has passed.^ Such is the usual course of febrile delirium ; but the symptoms may detach themselves, so to speak, from the bodily disorder, and assume a chronic or permanent form ; in which event the delirium passes into the darker phase of maniacal delirium and by a fixed disarrangement of the mental conceptions produces insanity, that painful, habitual state of incapacity, whose legal consequences are elsewhere discussed. To the delirium of disease commonly suc- ceeds a stupor, where the disease is to end fatally ; but often will the mind recover a calm and quiet condition for a considerable space before death. ^ § 122. Delirium Incapacitates; Effect of Lucid Intervals. It stands to reason that the will of a person, made while he is delirious and quite out of his mind, is null if not a legal absurdity. But wills are often made in the last illness of such sufferers and during the period when one throws off his feverish delirium like a person waking from a nightmare. Where the patient is con- valescent, or even in the earlier stages of a febrile disease which after much fluctuation ends fatally, the mind may no doubt be 2. Ray Med. Jur. 364 ; 1 Wharton s?ene words which may have escaped & Stille Med. Jur. 3d Ed. § 702 et him during the delirium. The pa- seq. tient, on the contrary, in whom the 3. 1 Redf. Wills, 92; Ray Med. Jur. insanity is confirmed, will not ad- 346; 1 Wharton &, Stille Med. Jur. mit that he was delirious. He sus- § 703. In 1 Wharton & Stille the tains the errors of his imagination distinctive symptoms are traced out, and takes them for realities. The at some length, as between febrile and hallucinations and delusions of all insane delirium. " In ordinary dis- sorts which he has felt, and which eases the sick person attaches him- still beset him, fortify him in his self with happiness to everything madness. Still more, in this he sys- that tends to recall him to existence. tematizes his delirium, and whatever He hears with emotion of the difTer- intellectual energy is left is employed ent stages of his disease, and of the by him in establishing, upon the basis delirium which was its consequence; of a desperate logic, motives for the he speaks often of its causes, deplores new existence which he is just corn- its effects, and makes innumerable mencing." 1 Wharton & Stille, § 703. excuses for any malignant or ob- 137 § 123 LAW OF WILLS, [PART 11. quite clear in tlie intervals of strange dreaminess and rhapsody. The courts distinguish, therefore, where delirium only is set up in opposition to a will presented for probate, and the case of fixed mental derangement or habitual insanity. Delirium, Sir John Xicholl, an eminent authority in probate law, has observed, is a fluctuating state of mind created by temporary excitement, in the absence of which, to be ascertained by the patient's appearance, the patient is most commonly really sane. Hence, as also, indeed, from their greater presumed frequency in most instances of deli- rium, the probabilities, a, priori, in favor of lucid intervals are far stronger in a case of delirium than in one of permanent proper insanity ; and the difficulty of proving a lucid interval is less, in the same exact proportion, in the former, than it is in the latter case, and has always been so held in the English courts of probate.* There are American decisions which support the same conclu- sion ; ^ for delirium caused by a fever is most commonly temporary in its character, like the fever itself. § 123. The Same Subject. But while delirium has usually the temporary character thus noticed, it sometimes, by changes almost imperceptible, passes, as we have seen, into the fixed type of mental derangement. And the testamentary transaction may still invite a careful inspection of all the attendant circumstances where the testator never wholly recovered from sickness, so as to manifest his approval of the 4. Sir John Nicholl, in Brogden v. parently rational, as he is in his visi- Brown, 2 Add. 445. " In cases of per- ble raving fits. But the apparently manent proper insanity, the proof of a rational intervals of persons merely lucid interval is matter of extreme delirious for the most part are really difTiculty, as the court has often had such." lb. See also Dimes v. Dimes, occnsion to ob.serve, and for this, 10 Moore P. C. 422, 426, per Dr. Lush- among other reasons, namely, that the ington; supra, § 109. patient so alTected is not unfrequently 5. Staples v. Wellington, 58 Mo. rational to all outward appearance, 453, 459; Hix v. Whittemore, 4 Met. without any real abatement of his 545, 546, per Dewey, J.; Gomb;iult v. malady; so that, in trutli and sub- Public Admr. 4 Bradf. (N. Y.) 226, Btance, ho is just as insane, in his ap- 239; Clark v. Ellis, 9 Or. 128. 138 CHAP. VII.] DELIRIUM, DRUNKENNESS^ ETC. §124 executed instniment by the obvious act of keeping it intact among his papers after resuming an active contact with affairs, but, on the contrary, grew gradually worse and died. Here and at the threshold of death occurs a period when the mental condition be- comes fitful and untrustworthy. The patient might be calm and answer questions with tlie same sort of relevancy, while a close examination would reveal, notwithstanding, a drowsy and dreamy condition of the mind, quite unfit for grappling with the relations of persons and things so as to perform with due consciousness the testamentary act. Here, as elsewhere, 'the standard of testamentary capacity should be applied, and this inquiry should solve the doubt: namely, whether the patient, besides exercising his own volition, has suffi- cient intelligence to comprehend the condition of his property, his relations to those who are or naturally might be the objects of his bounty and to understand the provisions of the instrument.^ § 124. Delirium Tremens, and Drunkenness or Intoxication in General. Delirium tremens is a form of mental disorder incident to habits of intemperance, whose symptoms are generally indicated by a slight tremor and faltering of the hands and limbs, restless anxiety, disturbed sleep, and a loss of appetite. As in the case of fever, uneasy slumber begets painful dreams, which pass with rarer intervals into an exhausting delirium. Refreshing sleep, aided, by good medical treatment, may operate a cure, but the disease sometimes ends fatally. A more positive mental derange- ment is found to occur not unfrequently in connection with in- temperate habits ; thus, hard alcoholic drinking may produce a paroxysm of maniacal excitement or a host of hallucinations and delusions; but most commonly after a few days' abstinence, one's ordinary mental condition, though perhaps feeble, will ensue. In 6. Surpa, § 68. The burden of proof pneumonia closely preceded death, lies to establish a lucid interval for Coughlin's Will, 68 N. J. Eq. 582, A. making a will, where delirium and 876. 139 § 125 LAW OF WILLS. [PART II. the lighter stages of intoxication, however, alcoholic drink or some drug like opium will produce a condition of lethargy or excite- ment, as the case may be, which, variable by turns or temperament^ steals away the faculties for the time being, and yet leaves it often very doubtful whether or not a sound and conscious mind still operated behind the mask of folly. While such delirium or derangement lasts, discretion is over- whelmed in a temporary madness, and no testamentary disposi- tion committed under its influence can avail; provided, of course, that one's mental condition fails under the tests which apply to other delirium and other forms of insanity. The real difficulty is found where the less positive disorder of the faculties, which re- sults from mere intoxication, has to be considered in this connec- tion.^ For the incapacity produced by drink is more strictly tem- porary than tke delirium of disease, and when the fit is off, reason acts as before.^ § 125. The Same Subject: Drunken Habits may impair the Reason. Aside from the raging delirium of which we have spoken, and 7. Taylor Med. Jur. 656; 1 Whart. Swinburne thus discriminates upon & Stille, §§ 201, 639; Ray Med. Jur. the subject of testamentary incapa- 438. Drunkenness and delirium tre- city as affected by drunkenness. '' He- mens are more commonly considered that is overcome by drink, during the as affecting resposibility for crime. time of his drunkenness is compared In general, insanity which is produced to a madman, and therefore, if he by delirium tremens affects civil re- make his testament at that time, it sponsibility in the same way as in- is void in law, which is to be under- sanity produced by any other cause; stood, when he is so excessively drunk though here it is observable more posi- that he is utterly deprived of the use tively than elsewhere, that the insan- of reason and understanding; other- ity was brought on by the person's wise, if he be not clean spent, albeit own misconduct — a consideration his understanding is obscured and his which, in fact, appears to affect the memory troubled, yet he may make rule of legal responsibility as defined his testament, being in that case." in cases of crime committed during Swinb. pt. 2, § 6. mere intoxication. See Wharton & 8. 1 Rcdf. Wills, 163; Ayrey v. Stille, supra; 5 Mason, 28; 1 Curt. Hill, 2 Add. 206. Insanity, it is said, C. C. 1. is often latent, but ebriety never. lb. 140 CII.1P. VII. DELIRIUM, DRUNKENNESS, ETC. § 126 which is found so often temporary, a long-continued habit of inordi- nate indulgence in the use of stimulants may, in certain tempera- ments, produce another sort of insanity. The mind becomes grad- ually impaired, the memory fails, and the drunkard sinks into that sottish condition where his faculties are stupefied, and he may be pronounced utterly incapable of managing his own affairs.® Vic- tims of intemperance like these are, under some of our local stat- utes, subject to guardianship, where their estates might otherwise bo squandered ; for were it otherwise, testament or no testament would be of little consequence. Sometimes, but not invariably, a permanent, fixed, and incurable insanity is developed by the drunken habit, especially if other causes predispose the mind in that direction.^ But ordinarily this is not so when other predisposing causes are absent, for the mind of the most confirmed inebriate is generally capable of transacting common business in its sober moments. § 126. When Intoxication invalidates a Will, and the Reverse. The fact that the testator was intoxicated, or under the in- fluence of some drink or drug at the itinie he made his will, does not of itself avoid the disposition, if the intoxication or stimulus does not prevent him from comprehending intelligently what he is doing.^ Nor is habitual drunkenness or the frequent and in- 9. Starret v. Douglas, 2 Yeates, 48; ham, 56 Penn. St. 370. And see supra, Duffield V. Morris. 2 Harring. 375, § 81. 383. And see M'cSorley v. McSorley, 2. Peck v. Gary, 27 N. Y. 9; Gard- 2 Bradf. (N. Y.) 188. ner v. Gardner, 22 Wend. 526; Pierce 1. A will made by a habitual v. Pierce, 38 Mich. 412; Andress v. drunkard while subject to a commit- Weller, 2 Green Ch. 604; Kay v. Hol- tee or guardian is not for that reason loway, 7 Baxt. 575; 57 Cal. 274; 49 void; but, at most, th«re is only La. Ann. 1376, 22 S. 394; 4 Dem. (N. prima facie evidence of incapacity af- Y.) 501; Frost v. Wheeler, 43 N. J. forded by the appointment of a com- Eq. 573, 12 A. 612, 127 Penn. St. 269, mittee or guardian; nor does the rec- 18 A. 10, 45 N. J. Eq. 573. That the ord always furnish even prima fo/oie testator had delirium tremens was an evidence. Lewis v. Jones, 50 Barb. element in. proof of incapacity in 645; 57 Cal. 529; Leckey v. Cunning- Edge v. Edge, 38 N. J. Eq. 211. But 141 126 LAW OF WILLS. [part II» jurious use of ardent spirits or dnigs of itself sufficient to in- validate a will, even though the person so addicted may have acted like a madman while intoxicated.^ For the state of mind at the time of executing the will in question is the material issue; and il the testator be then in a condition to understand what he is about, his capacity is presumed.* On the other hand, the wills of those far gone in intemperate habits should be watchfully regarded ; for such persons are even, more liable to imposition in transactions of this kind than to dis- pose irrationally without dictation. If the mind is not clouded simply, but is actually deprived of reason or volition, — if, in other words, whether by delirium or besotted faculties, or from any other cause the person at the time of executing the will is mentally incapacitated, according to the usual tests, — his will is not a valid one.^ AYhat is here said of intoxication or drunken- ness, applies not only to the use of spirituous liquors, but to the opium or morphine habit.^ delirium tremens may pass off and leave the person sane and sensible, so that his will, if made without undue influence, should operate. Handley v. Stacey, 1 F. & F. 574. 3. Hight V. Wilson, 1 Dall. 94; Temple v. Temple, 1 H. & M. 476. 4. Peck V. €ary, 27 N. Y^ 9, 84 Am. Dec. 220; Pierce v. Pierce, 38 Mich. 412; Fluck v. Rea, 51 N. J. Eq. 233, 639, 27 A. 636, 30 A. 430; 52 A. 690; Martin v. Bowdern, 59 S. W. 227, 158 Mo. 379; Schluser's Estate, 47 A. 966, 198 Penn. 81, 55 A. 24, 205 Penn. 455; Baker v. Baker, 67 N. E. 410, 202 111. 595; 166 Ind. 25, 76 N. E. 755; Weatherall v. Weatherall, 115 P. 1078, 63 Wa.sh. 526. 6. Gardner v. Gardner, 22 Wend. 526; DufTield v. Morris, 2 Barring. 375; Temple v. Temple, 1 H. & M. 476; Barrett v. Buxton, 2 Aiken, 167; Julke V. Adam, 1 Redf. (N. Y.) 454;. cases supra. 6. The will of a testatrix was sus- tained in a case notwithstanding she was shown to have been addicted to the use of morphine; it appearing that when not under the influence of morphine her mind was clear and that she made her will accordingly. Frost V. Wheeler, 43 N". J. Eq. 573, 12 A. 612. But the court justified a con- test of the will where such habits ex- isted and ordered the costs of litiga- tion paid from the estate. lb. As to morphine, see further, Bush v. Lisle, 89 Ky. 393, 12 S. W. 762; 53 A. 690, 64 N. J. Eq. 715; Whitsett V. Belue, 54 So. C77, 172 Ala. 256; Naylor v. McRuer, 144 S. W. 772, 248 Mo. 423. 142 CHAP. VII. DELIKIUM, DRUNKENNESS, ETC. § 128 § 127. Burden of Proof, etc., where Drunkenness is alleged. Where drunkenness is relied upon as establishing incapacity, — not habitual and fixed insanity, but, at the most, habitual intoxi- cation, — the burden of proving its existence at the time of exe- cuting the will rests usually upon the contestants.^ Habitual drunkenness cannot alone in proof overthrow an adult's will. jSTor is the effect of drunkenness on the testator's capacity in such a contest a question for experts, or dependent upon proof of subse- quent acts and conduct, but it depends on common obeen^ation and th'^ facts of the particular case at and about the time of the trans- action.^ All that need appear, therefore, in order to sustain the will, is the absence of intoxication, at the time of making it, in any such degree as would, by the usual tests, vitiate the disposition.* If the testator was at the time capable of knowing what he was about, it is to be presumed that he did know, and that the disposition was his voluntary and intelligent act. Where one's indulgence has produced habitual and fixed derangement of the reason, proof of a lucid interval or a return to the same condition would, under the general rule, be needful ; but otherwise, the law infers readily, in the absence of evidence to the contrary, that, though intoxicated sometimes to madness, one was in his right mind when he made his last testament.-' § 128. The Rule of Testamentary Capacity in Drunkenness illus- trated. How strongly our courts incline in these times to sustain a just and natural will, even where the testator is admitted to be a con- firmed drunkard, is illustrated by some of the modern cases. In 7. Andress v. Weller, 2 Green Ch. 1. Ayrey v. Hill, 2 Add. 206; Gard- 604, 608; Lee v. Case, 46 N. J. Eq. ner v. Gardner, 22 Wend. 526; Peek: 193, 18 A. 525. v. Gary, 27 N. Y. 9, 84 Am. Dec. 220; 8. Pierce v. Pierce, 38 Mich. 412; Koegel v. Egner, 54 N. J. Eq. 623. Gibson v. Gibson, 24 Mo. 227. Contradictory testimony on such 9. See Ayrey v. Hill, 2 Add. 206; points may properly be left to a jurv.. § 126. 143 § 129 LAW OF WILLS. [pART 11. Xew York the will of a man notoriously intemperate was, in 1863, adjudged by the court of appeals admissible to probate, though executed after a protracted debauch of five days. The proof showed that he had at the time of execution recovered from the immediate effects of the debauch, speaking of it as a matter of the past, though continuing to drink in the course of the same day, while preparing to take a voyage, which was the occasion of his will ; and no extravagance or insane conduct contemporaneous with the will was shown." In this case, we may add, the court laid much stress upon the obvious circumstance that there was nothing unnatural or unrea- sonable in the will itself ; that it was properly executed ; and that the persons who were present at the very time of the testamentary act — one of whom was, from previous knowledge and present ob- servation, an eminently competent witness — saw nothing in the testator indicating a want of ordinary intelligence or entire sanity.^ § 129. Dementia as distinguished from Mania or Delirium. To speak now of dementia, or that form of insanity which is niarked by mental feebleness and decrepitude, so that reason flickers low in the socket and then dies out. Between idiocy and dementia the analogy is strong; nor is the word "imbecility" unfrequently applied in the present connection without taking in congenital defect as a necessary element. Whether we speak of imbecility in this broad sense, or use the more technical term '• dementia," we subordinate the idea of impediments, which birth 01 infancy may have opposed to one's normal development, and view mainly the breaking down of the natural faculties, gradual and insensible usually, but sometimes rapid and sudden. But from idiocy, whose proper type is always the abnormal from birth, 2. Peck V. Gary, 27 N. Y. 9, 84 Am. ITart, 4 Di>m. (N. Y.) 501; Weather- Doc. 220. Cf. McSnrley v. M;Sorl(y, all v. Weatherall, 115 P. 1078, 63 2 Pradf. (N. Y.) 188. Wash. 526. 3. 27 N. Y. 24. And see Stcbbins v. 144 CiHAP. VII.] SENILE DEMENTIA. § 130 dementia is well distinguished ; * tlieir resemblance consisting in this, — that in extreme cases, no ray of human intelligence appears visible, but all is darkness. Dementia, we distinguish from general mania or delirium, in that depression of the mental powers produces the fonner condi- tion, but exaltation, the latter. In mania, force, hurry, and in- tensity mark the action of the mind ; in dementia^ slowness and weakness ; ^ nevertheless, dementia appears often to be a sequel of mania, by a sort of relapse and exhaustion of nervous influence ; and many regard it as the natural termination of insanity, a final period rather than a true form of mental unsoundness, — in a word, tlie tomb of reason.® § 130. Senile Dementia, or the Mental Decay of the Aged : Liti- gation on this Ground. Deinentia is sometimes found in the young as a form of in- 4. Supra, c. 5. 5. 1 Wharton & Stille Med. Jur. § €98. 6. 1 Wharton & Stille, § 700, cit- ing M. Falret. " The reasoning of the maniac," ob- serves Dr. Ray, '' does not so much fail in the force and logic of its argu- ments, as in the incorrectness of its assumptions; but in dementia the attempt to reason is prevented by the paucity of ideas, and that feebleness of the perceptive powers, in conse- quence of which they do not faithfully represent the impressions received from without. In mania when the reason fails, it is because new ideas have crowded into the mind and are mingled up and confounded with the past; in dementia, the same effect is produced by an obliteration of past impressions as soon as they are made, from want of sufficient power to re- tain them. In the former, the mental operations are characterized by hurry and confusion; in the latter, by ex- treme slowness and frequent apparent suspension of the thinking process. In the former, the habits and affections undergo a great change, becoming strange and inconsistent from the be- ginning, and the persons and things that once pleased and interested, viewed with indifference or aversion. In the latter, the moral habits and natural feelings, so far as they are manifested at all, lose none of their ordinary character. The temper miy be more irritable, but the moral dis- position evinces none of that peiver- sity which characterizes mania. In dementia, the mind is susceptible of only feeble and transitory impres- sions, and manifests little reflection even upon these. They come and go without leaving any trace of their presence behind them." Ray, Insan- ity, 292. 10 145 § 130 LAW OF WILLS. [PART II. sanity not incurable ; but its most common type occurs in old per- sons, whose mental powers begin to break down in advance of the physical. This mental decay of the aged is known as senile de- mentia ; and it is upon the allegation of insanity of this kind that wills are most often contested ; or rather, we should say, upon the ground that the testator, while thus weakening in intellect and volition, was, if not absolutely incompetent, constrained unduly at all events, and influenced to make a testament which others framed for their own ends. This form of dementia similarly invites litigation and doubt; for, unlike the dementia of the young, which is too patent to admit of question, senile dementia differs greatly both in the process and progress of decay. Medical observers tell us that it cannot be described by any positive characters; that in its gradual advance to utter incompetency it embraces a wide range of infirmity, vary- ing from simple lapse of memory to complete inability to recog- nize persons o^r things ; that often the mental infirmity of the aged is by no means as serious as might be supposed at first sight, and that, to use a figure of speech, the mind may be superficially rotted while it is soimd at the core. Most of us have known some person heavily weighted with years and infirmity, who seemed scarcely conscious in general of what was passing around him ; who was quite oblivious of names and dates, and committed childish breaches of decorum before our guests ; and yet, when spurred up on occa- sion, when encountering some object which aroused a deep in- terest, or, what is most pertinent to our subject, when touched upon the aifairs of money, investments, and the family relation, showed a clear, acute, and vigorous comprehension. Younger members of the household watch for signs of mental failure in persons like these, and confess that often the signs deceive them. And once more, senile dementia, where the mind has surely tottered, blends 80 often the consequences of imprndont habits, of physical dis- orders seated in the system, of indulgence in drink, of some pecu- liar bias of character or temperament, of delusions or other predis- position to insanity, with those of natural decay in old age, that 140 CHAP. VII.] SENILE DEMENTIA. § 131 a confused an^ay of proofs is offered by those wlio would break down the testament, so-called, of the superannuated.^ § 131. The Same Subject: When the Mind begins to decay. Persons differ greatly both in metal and physical resources after passing the meridian of life; some declining rapidly, others by degrees almost imperceptible. In one the intellectual functions operate with healthy precision far into the vale of years, the power of volition dominating over the ills of flesh ; in another the loss of mental power and energy seems to precede the loss of physical strength ; but probably in a majority of cases, both mind and body begin to fail together soon after the prime of life is reached. We detect more easily when the bodily vigor and elasticity of mature life shows signs of departure than we do the approach of mental feebleness ; in the former respect an old person admits his lapse, while he may persistently deceive himself and others in the latter ; moreover, as Judge Redfield has well observed by way of compari- son, our uncertainty in estimating the powers of the mind is the greater, since the increase of experience and knowledge which time produces at all stages of advancing life compensates much for the decline of the mental faculties and powers.^ Judges, clergymen, and literary writers, whose minds have been constantly trained and disciplined, and their circumstances such that brain work may proceed without worry, retain in many instances the capacity for intellectual labor, of the reasoning rather than imaginative sort, to a ripe old age. 7. The late Chief Justice Redfield, with testamentary cases, or which has in his valuable treatise on wills, evi- so important a bearing upon, or the dently considered the imbecility of old thorough comprehension of which is age, or senile dementia, as the most so much to be desired, as an aid to- difficult and important subject con- ward the correct understanding of nected with testamentary capacity. such cases, as that of the imbecility " There is probably no form of mental of old age, or senile dementia." 1 unsoundness," he says, " which has to Redf. Wills, 94. be considered so often in connection 8. 1 Eedf. Wills, 95. 147 § 133 LAW OF WILLS, [pART II. § 132. The Same Subject: Loss of Memory One of the First Symptoms of Mental Decay. One of the first as well as of the surest symptoms of mental decay is the loss of memory; and especially in respect of names and dates; yet, oblivious as an old person might appear in such matters, his mental grasp of the relations he sustains to others and of his own individual interests and affairs, his capacity and solid understanding, may still remain long firm.^ At the same time it is admitted that the faculty of remembering, like capacity itself, lasts much longer in some persons than in others. This failure of memory is not enough to create testamentary incapacity, aside from fraud, force, and error, unless it extends so far as to be inconsistent with the " sound and disposing mind and memory" requisite for all wills; or, in other words, unless the mind is incapable of grasping the details of testamentary dis- position, and the memory is defective in such essentials.-^ § 133. The Same Subject: Causal Observers Untrustworthy as compared with those Familiar with the Testator. It follows from what we have thus briefly observed of senile dementia in its general aspect, that the impressions of mental con- dition made upon casual or ignorant observers are untrustworthy and of very little consequence in such cases as compared with those of persons who have been well acquainted with the habits and character of the individual, and have often had occasion to test the vigor of his faculties. The impressions, for instance, which con- 9. Kiiiloside v. Harrison, 2 Phillim. dates of events which concerned him 44!», 457; Van Alst v. Hunter, 5 little; but whether, in conversations Jolins. Ch. 148, 158; Merrill v. Rush, about his affairs, his friends and rela- 33 N. J. Eq. 537; Evenson's Will, 139 tives, he evinced sufficient knowledge N. W. 766, 153 Wis. 113; 1 Redf. of both, to be able to dispose of the Wills, 95. To quote from Dr. Ray, former with a sound and untram- an eminent authority upon insane melled judgment." Ray Med. Jur. fiymptoms: "The great point to be 336. determined is, not whether he was apt 1. See Bleeckor v. Lynch, 1 Bradf. to forget the namfs of people in whom (N. Y. ) 458. he felt no particular irit<'rest, nor the 148 CHAP. VII.] SENILE DEMENTIA. § 134 stant medical advisers have derived; intelligent nurses, familiar visitors and friends of tlie family, and, allowing for the bias of personal interest, the family and immediate kindred themselves. § 134. Senile Dementia disqualifies One from making a Will, but not Old Age Alone. Senile dementia, as one form or development of insanity, dis- qualifies a person from making a will ; but old age alone does uot.^ The law places an arbitrary limit, so that those not arrived at a certain age are conclusively incapable of the testamentary act ; but no such limit confronts the other extreme of human life. For a man (as Swinburne has expressed it) may freely make his testament, how old soever he be ; since it is not the integrity of the body, but of the mind, that is requisite in testaments. Yet (he adds) if a man in his old age becomes a very child again in his understanding, or rather in the want thereof, or by reason of ex- treme old age, or other infirmity, is become so foregetful that he knows not his own name, he is then no more fit to make his te^s- tament than a natural fool, or a child, or lunatic person.^ By which statement we are not to understand that the minor child and the superannuiateid child are measured in legal capacity by the same simple standard of arithmetical reckoning; nor that the con- clusive test of infirmity in old age must depend necessarily upon the testator's recollection of one name or another.'* The learned Chancellor Kent, who, as a professional instructor and author of the famous Commentaries on American Law after his enforced retirement from the bench at the age of three-score, furnishes a conspicuous example to posterity of the error legisla- tion is sure to commit whenever it undertakes to assign an absolute limit to adult mental capacity for afi^airs and usefulness in the public service, not to add as a private citizen, made some fittin?^ observations concerning the wills of old persons in a case which 2. Swinb. pt. 2, § 5, pi. 1; Bird v. 3. Swinb. pt. 2, § 5, pi. 1. Bird, 2 Hagg. 142; Van Alst v. Hun- 4. See supra, §§ 40, 91. ter, 5 Johns. Ch. 148 ; cases in sections infra. 149 § 136 LAW OF WILLS. [PAPa' II. once came before him for decision. Regarding it as a fortunate circumstance for themselves that the aged have the power to dis- pose of their own property, " it is," he says, " one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to com- mand the attentions due to his infirmities." ^ § 135. Wills of the Aged should be tenderly regarded. " The will of such an aged man," adds the Chancellor in this same opinion, " ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but con- tains those very dispositions which the circumstances of his situa- tion and the course of the natural affections dictated." ^ We may contrast the delicate feeling shown to the feeble in language like this, with the harsh and grating tone of early text-writers like Swinburne, when they touch upon testamentary incapacity as pro- duced by mental unsoundness.^ But Chancellor Kent himself, it is here preceived, does not contend that an old person's will should receive tender consideration when unfairly extorted by others, or unjust and unnatural in its disposition of the estate.^ § 136. The Same Subject. Other American decisions proceed upon the same view of old age in its efiFoct upon testamentary capacity. " Great age alone," observes Surrogate Bradford, in the course of a long and carefully considered opinion, " does not constitute testamentary disqualifi- cation ; but, on the contrary, it calls for protection and aid to fur- ther its wishes, when a mind capable of acting rationally, and a 5. Van Alst v. TTtintcr. 5 Johns. Ch. 6. Van Alst v. Hunter, 5 Johns. Ch. 148, 158. Rpp Packer's Estate, 129 P. 148. 778, 164 Cal. 525. 7. Swinb. pt. 2, § 5, pi. 1, supra. 8. 8vpra, § 77. 150 CHAP. VII.] SENILE DEMENTIA. § 136 memory siifBcient in essentials are shown to have existed, and tho last will is in consonance with definite and long-settled intentions, is not unreasonable in its provisions, and has been executed with fairness." ^ " There is no presumption against a will," says An- drews, J., reiterating the New York rule on this subject, " because made by a man of advanced age, nor can incapacity be inferred from an enfeebled condition of mind or body. Such a rule would be dangerous in the extreme, and the law wisely sustains testa- mentary dispositions made by persons of impaired mental and bodily powers, provided the will is the free act of the testator, and he has sufficient intelligence to comprehend the condition of his property, and the scope, meaning, and effect of the provisions of the will." ' Eminent English authority is to the same effect. " The law," observes Sir John Nicholl, " allows a person at any age to make a will, provided he retains the disposing faculties of his mind ; " and he adds, thiait age is an uncertain criterion of mental powers.^ And Chief-Justice Cockburn approves the idea that though mental power be reduced in old persons below the ordinary standard, yet if the testamentary act is understood and appreciated in its differ- ent bearings, if the mental faculties retain sufficient strength freely to comprehend the transaction entered upon, the power to make a will remains.^ 9. Maverick v. Reynolds, 2 Bradf. and memory sufficiently sound to en- (N. Y.) 360. And see Bleecker v. able him to know, and to understand. Lynch, 1 Bradf. 458; Snyder v. Sher- the business in which he was engnged man, 23 Hun (N. Y.), 139. at the time when he executed the 1. Horn V. Pullman, 72 N. Y. 269, will?" Wilson v. Mitchell, 101 Penn. 276 (1878). The Pennsylvania doct- St. 495, 503, citing other cases upon rine confirms the rule advanced on testamentary capacity. And see 5 this point in New York, and the court Houst. 435. makes reference in a later case to 2. Kinleside v. Harrison, 2 Phillira. the general test of capacity in those 449, 461. enfeebled by age, sickness, or extreme 3. Banks v. Goodfellow. L. R. 5 Q. distress or debility of body. ' 'To B. 549. 566. And see Bird v. Bird, 2 sum up the whole in the most simple Hagg. 142. and intelligent form: Were his mind 151 § 137 LAW OF WILLS. [PAET II. § 137. Instances in which Wills of the Aged have been sus- tained. Instances from the reports will serve to illustrate the principle we are considering. In a leading English case, Sir John Nicholl in 1818 admitted to probate the will and codicils of a man who had executed the latter instruments when from eighty-six to eighty- eight years old, and died at about ninety ; and this notwithstanding proof that the testator had sometimes been non compos from vio- lent nervous attacks while at this advanced stage of life.* In Chancellor Kent's opinion, which we have quoted, the will upheld was made by a person between ninety and one hundred years old.^ In a ISTew Jersey case a will was sustained, although the testator was eighty years of age, very deaf, and troubled with defective eyesight when he made it.^ In Kentucky, another testator of about the same age, was so afflicted with the palsy that he could neither read nor feed himself; yet his will was adjudged a valid one ; ^ and so with a person eighty-six years old in greatly im- paired health.^ In one ISTew York case a will was vigorously contesited where the testatrix was ninety years old ; but no proof of mental un- soundness appearing, and the will itself appearing not only a rea- sonable one, but in substantial accordance with one executed by her several years before, and also with her repeatedly declared intentions concerning the disposal of her property, and made after being carefully read and explained, the will was established.^ In another case the court of appeals sustained the will of a widower, eighty- three years old, which gave the bulk of his estate to a grand- son who had taken good care of the testator during his declining years, and besftowed only five dollars each upon six adult children, 4. Kinlcsido v. Harrison, 2 Pliillim. 7. Reed's Will. 2 B. Mon. 79. 440. 8. Watson v. Watson, 2 B. Mon. 74. 5. Van Alst v. Hunter, 5 Johns. Ch. 9. Maverick v. Reynold-s, 2 Bradf. 148. (N. Y.) 360. And see Bleecker v. 6. Ivowe V. Williamson, 1 Green Ch. Lynch, 1 Bradf. 458. 82. And see .32 N. J. Eq. 701; Sharp's Appeal, 134 Ptnn. St. 492. 152 CHAP. VII.] SENILE DEMENTIA. § 138 who, though on friendly terms with tlieir father, had seldom vis- ited him in his old age, and had declined to let him live with them.^ And there is a Pennsilvanda case where the will of an old man was adjudged good though he was more than a hundred years old when he made it; blind, partly deaf, and weakening in his meniory.^ § 138. The Same Subject: Circumstances favoring Probate of the Will. In these and other instances of the kind, it will be found that considerations like those adduced in corresponding cases where testamentary capacity is litigated, may serve to turn the scales where doubt exists. The will is jusit and reasonalble, or at least not positively the reverse; it regards the natural claims of family and kindred, if there be suich ; it was read over and explained, or at least was apparently well understood at the time of the execu- tion; it was carefully executed. Wherever it appears that the testator, while clearly competent, gave insitructions for such a will, or otherwiee showed by conduct prior or subsequent to the execution, that the disposition in question was such as he and not others deliberately planned, this circumstance should bear very strongly in favor of the 'probate.^ It matters little in general that 1, Horn V. Pullman. 72 N. Y. 269. 196 Penn. 194; Buckraan's Will, 85 2. Wilson V. Mitchell, 101 Penn. St. A. 246, 80 N. J. Eq. 556; 121 P. 434. 495. And see Wood's Estate, 13 3. See e.g. Maverick v. Reynolds, 2 Phila. 236; Snyder v. Sherman, 23 Bradf. (N. Y.) 360. If the aged per- Hun, 139; Vedder, Re, 6 Dem. (N. son has no near kindred at all, no per- Y.) 92; 4 Dem. 501 (where the tes- sons with natural claims upon him, tator was eighty years old and a hard his bounty may naturally be directed drinker) ; Silverthorn's Will, 68 Wis. to other persons or objects. See 372, 32 N. W. 287; 72 Iowa, 515, 34 Woods's Estate, 13 Phila. 236. N. W. 309; 1 Con. (N. Y.) 18, 373; Forgetfulness on minor matters at 143 Mo. 348, 44 S. W. 1117; 144 Mo. the age of eighty-three is of little 354, 45 S. W. 1077 (where the testa- consequence when it is shown that the tor was eighty-three years old, and testatrix held clearly in mind the sometimes used drugs) ; Cash v. Lust, names of a great many of her lega- 142 Mo. 630, 44 S. W. 724, 64 Am. tees, mentioned those omitted when St. Rep. 576; Pooler v. Cristman, 34 the draft was read over to her by the N, E. 57, 145 111. 405; 46 A. 424. scrivener, and carefully and intelli- 153 § 139 LAW OF WILLS. [PAKT II. the testator judged harshly of a person, if that person had no natural claims upon the testator's bounty/ General prudence and good sense in the management of one's own business affairs and consistent affection, are of course strong circumstances for up- holding the wills of the aged. § 139. Extreme Old Age suggests Vigilance in Probate; Mental Imbecility vitiates. But a tender regard for the aged requires not only that their intelligent dispositions should be upheld, but that their unin- telligent ones, or wills not really their own, sbould be set aside. It is said that extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of 'the court f by which, we presume, is only meant that vigilance ought to be exercised.*' Should the probate be contested in a case where no insanity has either existed or been supposed to exist, the inquiry as to capacity (aside from undue influence) is simply whether the mental facul- ties retained sufficient strength to comprehend fully the testamen- tary act about to be performed. But when lunacy or unsoundness of mind has previously existed, the investigation is of a far more searching and thorough sort, for a prejudice at once obstructs the probate."^ There can be no question that mental imbecility, whether arising from old age or any other cause or complication of causes, desitroys testamentary capacity. And undue influence, especially such as constrains by causing fear, must be regarded with great disfavor in all instances under the present head.^ gently supervised the contents of the 6. Observe the context, ib. In this instrument before executing it. Mer- case the will was actually sustained, rill V. Rush, 33 N. J. Eq. 537. And There is no presumption against a see 32 N. J. Eq. 701. will simply because of old nge. Horn 4. Lewis, Re, 33 N. J. Eq. 219: v. Pullman, 72 N. Y. 269. See White Merrill v. Rush, ib. 537. Harsh con- v. Starr, 47 N. J. Eq. 244, 20 A. 875; duct, as establishing an insane delu- cases, supra. sion in the testator's mind, will be 7. See Prinsep v. Dyce Sombre, 10 treatr-d in the next chapter. Moore P. C. 278; Gl N. Y. S. 1014. 5. Kinleside v. Harrison, 2 Phillim. 8. Hartman v. Stricklor, 82 Va. 44'J, 461, per Sir John Nicholl. 225; 43 N. J. Eq. 154; c. 10, pust. 154 CHAP. VII.] SENILE DEMENTIA. § 140 § 140. Instances in which Wills of the Aged have not been sus- tained. Where a will and codicil were executed bj a person eighty years of age, and neither of the subscribing witnesses to the two instru- ments testified favorably to his mental capacity, but one thought him not of sound mind, the surrogate refused probate of the instru- ments, and this decision was affirmed on appeal to the supreme eourt.^ In Kentucky the alleged will of a man about seventy years, who was confined to his bed by an inflammatory disease of a very distressing sort, which made him frequently both drowsy and flighty, and died two days later, w^as refused probate ; and this chiefly, as it would appear, because the will showed gross inequal- ity in its dispositions, and was only made after the teasing im- portunities of the testator's wife.^ In Missouri was set aside an instrument propounded as the will of an old lady about seventy- three years of age who had grown childish and irritable ; not so much, however, on the ground of incapacity, as because a stranger in blood, who had acquired a strong influence over her, procured the will in his own favoT regardless of her own immediate rela- tions, who were all poor.^ And in a iSTew Jersey case, where one made a sudden, unjust, and unaccountable change of disposition, evidence that he was eighty years old, that he had suffered in his mind from sun-stroke, that he had had delirium tremens, that he was under a delusion that his wife and son (with whom the will dealt inequitably) were trying to kill him, land that other persons were trying to rob him, — ^ail this was held satisfactory proof of his testamentary incapacity.^ Stupor and forgetfulness of the aged person at the time of execution, are unfavorable circum- 9. Dumond v. Kiff, 7 Lans. (N. 1. Harrel v. Harrel, 1 Duv. (Ky.) Y. ) 465. The report on appeal does 203. not exhibit the proof in detail; but 2. Harvey v. SuUens, 46 Mo. 147, 3 an important circumstance unfavor- Am. Rep. 491. able to capacity was that the testa- 3. Edge v. Edge, 38 N. J. Eq. 211. tor, a few months after these papers 4. See Cockrill v. Cox. 65 Tex. 669, were executed, did not know his own 115 111. 11, 3 X. E. 738, 80 Va. 293, children, inquired how many he had, 89 Va. 849, 17 S. E. 515. and could only name some of them. 155 § 141 LAW OF WILLS. [PART IL Stances, especially if sinister agencies are shown to have been active in procuring the testament, and death soon intervened after the instrument was executed.* Mental impairment by apoplectic shocks or paralysis may also be shown.^ And, as our illustrations manifest, some charge of an external undue influence has been set up with that of mental incapacity. § 141. Rule of Capacity for Dementia not Different from that for Mania. It is thus perceived that the legal principle by which courts are governed in testamentary causes differs not essentially, whether the alleged incapacity be produced by mania or dementia. Al- though the testator was aged and infirm, his will as a rule may be established, if, at the time of making it, he liad suiRcient intel- ligence to comprehend the condition of his property and his rela- tions to those who were or might naturally be the objects of his bounty, and to understand the provisions of the instnunent.^ If the will itself is fair and natural, and especially if it be shown to coincide in terms with the deliberate purpose announced by the maker when in sounder health, if it shows no indications of fraud or undue influence, — if in sort it is a rational act rationally per- 5. Hudson v. Hughan, 56 Kan. 152, 110 Wis. 70; Chandler's Will, 66 A. 42 P. 701; Bever v. Spangler, 93 215, 102 Me. 72; 115 N. W. 236, 137 Iowa, 576, 61 N. W. 1072; Menden- Iowa, 613; 180 111. 9, 54 N. E. 217 hall V. Tungate, 95 Ky. 208, 24 S. W. (ninety-one years old) ; 98 N. Y. S. 431; Davis v. Denny, 50 A. 1037, 94 438 (ninety-six years old); Geiger v. Md. 390 (childish with loss of mem- Bardwell, 99 N. E. 582, 255 111. 320 ory ) . ( defective memory and mental slug- 6. Supra, § 68; Wilson v. Mitchell, gisliness) ; Purcell's Estate, 128 P. 101 Penn. 495, 503 and other cases 932, 164 Cal. 300; Buckman's Will, cited, §§ 135-140; Oilman v. Ayer, 85 A. 246, 80 N. J. Eq. 556; 134 N. 52 A. 1131, 63 N. J. Eq. 806; Elliott Y. S. 682; Bensberg v. Washington V. Elliott, 92 N. W. 1066, 3 Neb. 832; University, 158 S. W. 330, 251 Mo. Perkins v. Perkins, 90 N. W. 55, 116 641; Martin's A'ill, 144 N. Y. S. 174; Iowa, 253; Reed's Estate. 90 N. W. Gnarantee Trust Co. v. Waller, 88 A. 319, 86 Minn. 163; Riggin v. West- 13. 240 Penn. 575; Huston v. Bell, minster College, 61 S. W. 803, 160 103 N. E. 213, 260 111. 354. Mo. 570; Butler's Will, 85 N. W. 678, 150 CHAP. VII.] SENILE DEMENTIA. § 142 formed, it will be upheld as valid, and very properly so, although his mind may have been considerably impaired by 'the time of its execution. § 142. Opinions as to the Capacity of an Aged Testator carry no Great Weight in Doubtful Cases. When the testator is far advanced in years, and occasional in- capacity is produced by sickness, intemperance, or other cause, so that the case is a complicated one, and the evidence a mass of crude and contradictory evidence, but little weight attaches to the mere opinion of witnesses.^ The basis of such opinions is liable to vary exceedingly; and moreover, as Sir John l^icholl has pointed out, differences will arise from the different abilities of the witnesses to form such opinions, from their different opportunities of seeing the person, and from the different state and condition of the tes- tatoi''s mind at different times.^ Especially does this hold true of casual and unskilful observers ; for, as already shown, it is only tliose well acquainted with the patient and his idiosyncracies, whose impressions at this stage of his life can be trusted.* 7. Kinleside v. Harrison, 2 Phillim. 8. Kinleside v. Harrison, 2 Phillim, 449. 449, 457. 9. Supra, § 133. 157 § 14:3 LAW OF WILLS. [PART 11. CHAPTEE VIII. MONOMANIA AND INSANE DELUSIONS. § 143. Monomania a Preferable Term to Partial Insanity; the Mind a Unit. That type of insanity which remains finally to be considered bears at present the name " monomania." " Partial insanity " was the term formerly applied, by way of distinguisihing it from general derangement of the mind ; but 'the best of modern medical psychologists now repudiate the mode of distinction as artificial^ one which leads, moreover, to lax and pernicious theories upon the subject of moral responsibility. The individual mind, they teach us, is properly regarded at all events, as a unit and indivisible ; not with moral and mental functions lodged in separate cells, so that one can be insane in one function but not in another, — so that a man might have an insane propensity to kill or steal, for in- sance, for which he was irresponsible, and yet be sane in other respects; nor with subdivided cells for various mental faculties, all capable of working apart and independently of one another.-^ If this later exposition be the true one, not only " partial in- sanity," but " moral monomania," with its confusing list of crimes which should be pitied but not punished, falls intO' disrepute. Nevertheless, the word ^' monomania " in an intelleatual sense, and as applied ito testamentary instruments, holds its footing in the courts. Even " partial insanity " might be quite as unob- jectionable a tonn, were it under like limitations.^ 1. Wharton &, Stillc, Med. Jur. §§ could only have arisen from mistak- 667-571. ing tlie sense in which the court used 2. In Dew v. Clark. 1 Add. 279; 3 that term. It was not meant that a Add. 79, Sir Johh Nicholl, one of the person could be partially insane and ablest probate judges in English an- sane at the same momoTit of time: to nals, observed as follows on the sub- be sane, the mind must be perfectly jeot of partial insanity: " Tt was sound; otherwise it is unsound. All Bald that ' partial insanity ' was uii- that was meant was, that the dclu- known to the law. Tlie observation sion may exi.st only on one or more 158 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. 144 § 144. Monomania defined; how distinguished from Eccentric- ity; Insane Delusions. Monomania, so called, may co'nsist in mental or moral perversion, or in both. It is the former phase which is chiefly presented in oases where the issue of testamentary capacity is involved. We may here define it a,s insanity only upon some particular subject or class of subjects ; and as insanity in general is manifesited by de- lusions, so in the pi'ctsent connection tliere appears in strictness but a single insane delusion, an insanity upon some particular subject or class of subjects, while in other respects the mind ap- pears to retain its normal powers. Insane delusion is thought to consist essentially in believing that to be true, or to exist, which no man in his senses can admit.^ particular subjects. In that sense the very same term is used by no less an authority than Lord Hale, who says : ' There is a partial insanity of mind and a total insanity. The former is either in respect to things [quoad hoc vel illud insanire — some persons that have a competent use of reason in respect of some subjects, are yet under a particular dementia in respect of some particular dis- courses, subjects, or applications], or else it is partial in respect of de- grees; and this is the condition of very manj', especially melancholy per- sons, who, for the most part, discover their defect in excessive fears and griefs, and yet are not wholly desti- tute of the use of reason; and this partial insanity seems not to excuse them in the committing of any offence for its matter capital ; for, doubtless, most persons that are felons of them- selves, and others, are under a de- gree of partial insanity when they commit these offences.' It is very difficult to define the invisible line that divides perfect and partial in- sanity; but it must rest upon circum- stances duly to be weighed and con- sidered both by judge and jury, lest on the one side there be a kind of in- humanity towards the defects of hu- man nature; or, on the other side, too great an indulgence given to great crimes." Cf. Lord Brougham's criticism of the expression " partial insanity," which he says would be better de- scribed by the phrase " insanity " or " unsoundness," always existing, though only occasionally manifest. Waring v. Waring, 6 Moore P. C. 349. 3. A delusion in medical jurispru- dence is " a diseased state of the mind in which persons believe things to ex- ist, which exist only, or to the de- gree they are conceived of only, in their own imaginations, with the per- suasion so fixed and firm that neither evidence nor argument can convince them to the contrary." Bouv. Diet. " Delusion ; " Robinson v. Adams, 62 Me. 369, 401, 16 Am. Rep. 473. " The 159 § l't4^ LAW OF WILLS. [PAET II. This very standard of comparison, however, namely, the avei-age man in his average range of mind, is far from fixed and positive. Men have been thought under an insane delusion who saw clearly in advance of their age ; and it is no.t so long since that any one who believed it possible for distant cities to hold converse by means of the electric wire would have been set down by he mass of his fellow-men as a monomaniac. The world itself is deluded by its own imperfect experience of things, by erro^rs, by super- stitition, by dreams. A morbid state of mind, a strange per^^er- sion on particular subjects, is, nevertheless, to be detected fre- quently in some indi\adual; it is; a sym'ptom often of general derangement soon to follow ; or, again, it remains fixed as the last discoverable symptom, after some mental disorder of greater scope appears to have passed away. It is generally admitted that the degrees of morbid derange- ment, of so-called monomania, vary very greatly in particular cases ; one person showing great sagacity and mental acuteness on all subjects ouit of the range of his peculiar infiraiity, while another has well-nigh lost altogether the balance of his faculties. But, while some who are less affected seem to conceal their delusion from the world with considerable skill and art, the monomaniac more commonly shows himself quite unconscious that his par- ticular hallucination separates him from the mass of mankind and provokes the comment 'that he is crazy. This it is, as reput- able writers assert, which most distinguishes monomania from eccentricity or any mere oddness of opinion ; for the odd or eccentric man admits his peculiarity, but persists in his course correct principle is, that whenever a It is misleadincr and inaccurate to person imagines something extraga- use insanity and delusion as converti- gant to exist, which really has no ex- ble terms; for there are delusions istence whatever, and he is incapable which sane minds have entertained; of being reasoned out of his false be- while in that decaying state of the in- lief, he is in that respect insane; and tellect known as dementia, or in im- if his delusion relates to his property, l)ecility, the insane mind is often too he is then incapable of making a f(H>l)le to manifest delusions of any will." Bcnoist v. Murrin, 5S Mo. 307, appreciable consequence at all. 323. IGO CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § 145 from choice and in defiance of public sentiment, while one labor- ing under the insane delusion admits neither error nor singularity on his part, but seems persuaded that he is guided by tihe most judicious of counsel.* His insanity puts on the aspect of a sort of supernatural sianity, and by this is most easily detected. Yet, even here, h.ow liable it is to happen that where one pursues some mistaken fancy or delusion, but not an insane one, the more he insists that he is rational, the more are others misled to believe that he is out of his mind, and an indignant denial of insanity is taken as proof positive of derangement until a mutual explana- tion reveals the false premises upon which his course of action was based.^ § 145. The Same Subject: Eccentricity further distinguished. It is further to be remarked, asi between insanity and eccen- tricity, tliat the latter is traced down as a natural and gradual growth of habits and character in an individual under the peculiar influences which surrounded him. When the will of such a person is opened, no matter how oidd its langxiage or how whimsical its provisions, those familiar with the person pronounce it just such a document, nevertheless, as might have been expected from him. But the will of an insane person, or the other han,d, shows rather a perversion of mind, an alienation of feeling, astonishing, un- accountable, and strangely at variance with bis natural character while in sound health. Exjfcernal causes account for eccentric but not for insane behavior. Eccentricity signifies in many cases an insiane predisposition ; and where the eccentric hiabit is suddenly acquired, starting up without a growtli, or where one's whole nature seems to have ber come quickly perverted so as to run back, as it were, in an opposite channel, we may well sjuspect that insane delusion is at work.^ 4. Taylor Med. Jur. 626, 629 ; 1 " Twelfth Night " serves as a ready Redf. Wills, 72. illustration in point. 5. The instance of Malvolio in the 6. See 1 Redf. Wills, 85; Taylor Med. Jur. 632, 656. 11 161 § 146 LAW OF WILLS. [PART II. A person may be eccentric, and so predisposed to insanity as to become decidedly deranged at some periods of life, and yet at other times so remitted to the former state of mere eccentricity as to be pronounced capable of making a will. Such was the case of th,e testatrix in Mudivay v. Crofts, whose will nevertheless Sir Herbert Jenner Fust admitted to probate, upon proof that she was laboring under no delusion or derangement when she made it. Her father, it appears, died when she was seven years old; her mother was of secluded and penurious habits, to which she herself was brought up ; but although eccentric in her manners, and ill educated, she was acute in business, conducted her own affairs, managed her own investments, gave intelligent directions to her legal advisers, and showed herself quite tenacious and clear-headed as to her legal rights. Eccentricity, the court observed, involves a greater susceptibility than usual to mental derangement; but still it is not mere strangeness of conduct or singularity of mind which constitutes the presence of insanity. " It is the prolonged departr ure, without an adequate external cause, from ithe state of feeling and modes of thinking usual to the individual when in health, that is the true feature of disorder of mind." '' § 146. Insane Delusion has no Basis in Reason; Reason and Evi- dence cannot dispel it. On the whole, the essence of an insane delusion is that it has no basis in reason, and cannot by reason or evidence be dispelled in the slightest. It is thus capable of being cherished side by side with other ideas utterly inconsistent with it.* The term " de- lusion " as applied to insanity must be distinguished from a mere mistake of fact or being induced by false evidence to believe that a fact exists which does not exist^ A belief, however erroneous, which is rationally entertained, is not an insane delusion.^ 7. Mudway v. Croft, 3 Curt. 671, Y.) 220, 251; Florey v. Florey, 24 f)7^; Wri;,'lit's Estate, 51 A. 1031, 202 Ala. 241. Perm. TJO.'i; Medill V. Snyder, 58 P. 9. See §§ 1G2, 215, post; also § 144^ 962, 61 Kan. 15, 78 Am. St. Rep. 306. supra. 8. .Merrill v. Rolston, 5 Redf. (N. 1. TTutchinson v. Hutchinson, 95 N. 162 CHAP. Vlir.] MOXOMANIA AND INSANE DELUSIONS. § 147 § 147. Delusions, Sane or Insane, in General. Delusioms of one kind or another are the usual accompaniment of a deranged mind; and the courts have sometimes been disposed to test one's general sanity by ascertaining whether he exhibits delusions. But what we call delusions afford a very capricious standard; and certainly capricious in their legal relations, as con- cerns testamentary capacity. Sir J. P. Wilde (Lord Penzance) in 1867 criticized severely the current definitions of English coiirts on the subject. A delusion is " a belief of facts which no rational person would have believed " ; so spoke Sir John N'icholl. " But who," ajsks Sir J. P. Wilde, '^ is a ' rational ' person ? And does not the assumption ' rational ' beg 'the question at issue ? " " The belief of things as realities, which exist only in the imagination of the patient; " so said Lord Brougham in Waring v. Waring; but do not sane people imagine unrealities ? ''A pertinacious adher- ence to so'me delusive idea, in opposition to plain evidence of its falsity," said Dr. Willis, as quoted by Sir John Nicholl ; " but are not sane people sometimes pertinacious in error ? and who is to determine what evidence is '' plain ' ? " And arguing hence from the inadequacy of all the definitions, Sir J. P. Wilde concluded that delusions, as insane delusions, ought to be proved by insianity, not insanity by delusions.^ A later probate judge of that country admits that to test delusion by what " no rational person would have believed " is arguing in a circle, yet he considers that test a good one for practical purpos^es.^ It is sometimes assumed that a delusion, to be pronounced insane, must have been combated, sO' that it appears, in fact, not only against just reason but against argument or evidence adduced to the contrary.^^ E. 143, 250 111. 170, 101 N. E. 946, 3a. Kendrick's Estate. 62 P. 605, 258 111. 558. 130 Cal. 360. And see Stull v. Stull, 2. Smith V. Tebbitt, L. R. 1 P. & 96 N. W. 196, 1 Neb. 380; Heming- D. 401. way's Estate, 45 A. 726, 195 Penn. 3. Boughton v. Knight, L. R. 3 P. 291, 78 Am. St. Rep. 815. & D. 64. 163 § 148 LAW OF WILLS. [PART II. § 148. Delusions which do not involve Mental Incapacity. It is not g-iven us to penetrate into the world of dreams, nor to solve those mvsiteries in which a mind of strono- imascinative powers and quick susceptibilities, prone to morbid depressions, inaj become invoh-ed, under the influence of superstitious train- ing, long habits of self-introspection, or any such strange exper- ience of life as gives to the character an eccentric development. But surely, many of tiie delusions, hallucinations, apparitions, by whatever names we may choose to call then, manifested, in these and other minds, come very far short of establishing one's incapacity for the usual transactions of life. An overtaxed mind. tending to disease and disorder is often thus sbovni, to be saire; but the strain may be temporary only, and the delusion never strong enough to unseat reason or pervert the mind from its jsroper functions or tiie great tiask with which it wrestles. Mac- beth's dagger and tlie ghost whicJi appeared to Brutus before the battle are familiar among the countless exampleg in fiction; and for veritable history one need only refer to modem appari- tions, in which men like Dr. Johnson, Lord Castlereagh, and President Lincoln believed, whose testamentary capacity it would be preposterous to dispute ; or the star of destiny by which ISFia- poleon guided his conduct at a momentous crisis/ The delusion may give friends cause for anxiety ; but the mind, when tested, is shown quite capable of making a will or managing vast affairs. But there are other cases in which a general morbid derange- ment of all or most of all the organs must be admitted to exist. To these, and to the great mass of instances like those already cited. Dr. Wharton, an excellent authority among medical jur- ists, applies with strong approval the observaitions of De Bois- mont, on the case of a man who supposed that he had sunk all his wealth at the bottom of a well.^ And he invokes on behalf 4. ThpHo historical illustrations are tiont was, whose history we have re- set forth at lenj^'th in 1 Wharton & latod, he was capahle of making a Stille. §§ 52 T)?. will. Tliis is a very difTicult question; 5. " It may he asked wluther, in l)ut its solution is not an impossibil- tlie state of mind in wliieh the pa- ity. When the conduct of the indi- 1G4 CHAP, vin.] mono]ma:nia and insane delusions. § 15U of the weak and eccentric comprised in this categ-ory a portion of that tender solicitude, where the court deals with their last wills, which Chancellor Kent so touchinglj claimed for old men in a passage we have already cited. ^ § 149. Whimsical or Eccentric Behavior does not incapacitate. Mere whimsical behavior, or eccentricities in dress, demeanor, and habits of life, constitute no incapacity to make a will or perform any other property transaction. Isolation from social companionship engenders usually peculiarities in this direction; and the unmarried or disunited of both sexes, those whose homes have been broken up, and who find no close domestic bond such as smoothis off the angles and rough edges of individual charac- ter by constant attrition, are the mosit prone to develop them.'' § 150. Illustrations of Eccentric Wills. Though the distinction beitween eccentricity and insanity is a positive one, abstractly considered, courts have not in all cases applied it with marked success. There are recorded instances where wills have been refused probate in the English ecclesiastical vidual does not depart from received 121 111. 376, 12 N. E. 267; 6 Dem. usages, when it is not controlled by (N. Y.) 123; 145 Mo. 432, 46 S. W. one of those false ideas that make him 955; Cash v. Lust, 144 Mo. 354. 45 hate his relations and friends without S. W. 1077. One may be eccentric, pe- any motive, and when he regulates his culiar, slovenly in his conduct, con- expenses prudently, we do not think versation, personal habits and attire, tliat whimsical actions, or words, the and yet be capable of making his will, results of an erroneous belief, but Knight's Estate, 31 A. 682, 167 Penn. having no influence on the prominent 453. And see Prentis v. Bates, 88 acts of his life, should deprive a per- Mich. 567; 56 N. J. Eq. 766, 41 A. son of his civil liberties, and of the 422; Wright's Estate, 51 A. 1031, power of making his will." De Bois- 202 Penn. 395, 27 App. D. C. 535; mont, cited 1 Whart. & Stille Med. Morse v. Scott, 4 Dem. (N. Y.) 507; Jur. § 58. Hutchinson v. Hutchinson, 95 N. E. 6.1 Whart. & Stille, § 59; supra, § 143, 250 111. 170; Converse v. Mix, 135. 115 P. 365, 63 Wash. 318. The mater- 7. See Boughton v. Knight, L. R. 3 ial point is a departure from one's P. & D. 64; American Bible Society normal condition. Hock's Will, 129 V. Price, 5 N. E. 126, 115 111. 623; N. Y. S. 196. 165 § 150 LAW OF WILLS. [PART II. courts because tlie testator during life or in the testamentary act showed a disgusting fondness for brute animals. In one case the testatrix, who was a spinster, kept fourteen dogs of both sexes, who were provided with kennels in her drawing-room ; in another, a solitary female befriended a multitude of cats, which were pro- vided with regular meals and furnished with plates and napkins.^ That affection which sets domestic creatures like these above the human kind can hardly be called a natural one, and yet it is not hard to comprehend how a heart whose natural yearnings find no response from humankind may expend itself upon the lower ani- mals. The Arab loves his horse, and prisoners of sftate have, in their solitude, made pets of rate and vermin. The lowest of brute creation is capable of toucliing the hmnan chord as well as gratify- ing a scientific curiosity. One might have expected, thein, to find the whimsical attachment of such females pronounced tbe sign not so much of insane as of merely eccentric behavior; unless, indeed, die will passed coldly by those whose humau claims for sympathy should have had the first place in such a disposition. One the other hand, there is a remarkable case in which a man's will was sustained, as that of an eccentric, not insane penson, which not only disinherited the next of kin in favor of a stranger, but displayed a wholly irreverent contempt for the post mortem disposition of tlie testator's own body, such as might shock the most benighted of heathen savages. He directed his executors to cause some parts of his bowels to be converted into fiddle strings, others sublimated into smelling salts, and the remainder of his body vitrified into lenses for optical purposes ; and in a letter attached to the will he said : '' The world may think this to be done in a spirit of singularity or whim; but T have a mortal aversion to funeral pomp, and I wish my body to be converted into purposes useful to mankind." ^ One might have wished this will refused probate, if only to rebuke the offensive zeal which, sanely or in- sanely, vaunted in a Chrisitian country so flippant a disposition 8. Tiiylor Mc/l. .Tur. 058. citing 9. Morgan v. Boys, Taylor Med. Yglcsia.s V. Dyko, Prcrog. Court, 1852. .Tur. 657; cited 1 Rcdf. Wills. 83. 1G6 <:iiAr. VIII.] MONOMANIA AND INSANE DELUSIONS. § 151 of person and property. But the letter above quoted s'hovp-ed that conscious defiianee of public opinion only to be expected from a rational niiud ; and as the testator Kimself was shown to bave con- ducted his affairs in life with great shrewdness and ability, and to have been universally regarded by his asisociates as a man of sound eapacity, the court pronounced him eccentric and not deranged upon the proof, and admitted the will.^ Yet it would be bard to say why tenderness for the brute creation should be thought a sign of unnatural perversion, and contempt for one's own body (and presumably for all human bodies) should not. § 151. The Same Subject. But in the matter of funeral and burial, differences of educa- tion and habits of thought may unquestionably produce tastes and cusitoms utterly dissimilar. Thus, shocking as it may ®eem to most of us to have the corpse deliberately burned instead of buried, there are those who, with deliberate thougbt and even enthusiasm, embrace the doctrine of cremation. A will which gives such a direction need be no more than eccentric.^^ And in details less repulsive, but sounding rather in extravagant folly, the religious views, the personal experience, the habits, associations, and super- stitions surroundings of the testator during his life may throw such light upon his directions as wholly to remove the suspicion of insanity. An English ease, reversed on appeal, illustrates this i-emark. The testator, who was a native of England, but had lived long in ^the East and professed the Mahometan faith, directed that the residue of his estate, after paying ispeciiied legacies, should go to the poor of Constantinople, and towards erecting a 1. lb. Judge Redfield pronounces would not be likely to adopt. And, this " the most remarkable case of considering that the will in question mere eccentricity upon record, if it not only made so shocking and cold was such," and shows a healthy re- blooded a sacrifice of the ranker's own pugnance to testaments so heartless person to the cause of science, but ap- and irreverent. In his opinion, the pears to have sacrificed the heir with court took too charitable a view in re- equal heartlessness, we may well agree gard to the testator's mental capacity, with him. See Morse v. Scott, 4 Dem. and one which an American jury fX. Y.) 507. 167 § 153 LAW OF WILLS. [pART II. cenotaph in that city, inscribed with his name, and bearing a light to be kept perpetually burning. It was an absurd and supersti- tious will, when tested by opinions and habits of thought prevalent in England, for which reason the Brerogative Court condemned it as the offspring of insanity ; but on appeal, the Privy Council refused to measure derangement by the standard of English thought and feeling, and the wOl was admitted to probate.^ § 152. Eccentric Habits may afford Evidence of Insane Delu- sion. Eccentric habits may afford proof of insane delusion, when taken in connection with other facts and circumsitances pointing to the same conclusion. Especially is this true where the eccentricity together with the delusion follows mental prositration or develops in some strange, sudden, and unaccountable mode, insftead of grow- ing as habits usually do.^ § 153. Monomania or Insane Delusion involves Derangement; its Selfish Manifestations. When we come to the more serious diso'rder known as mono- mania, which throws great doubt upon the sufferer's capacity for affairs, the insane delusion on some particular subject is the symp- tom most prominent ; and yet weakness or derangement affects P'robably the mind as an entirety. The understanding will be found perverted in regard to a single object, or a limited series of objects. Solitary life, or the oppression of some particular task or problem, upon which the brain has long revolved, is likely to Ijave induced this deranged condition from a morbid one; and la. The custom of cremation gains had no next of kin nearer than a progress in this country since the brother of independent means; so above was written, and may no longer that, by this bounty to the poor of a be regarded a,s even eccentric (1915). Turkish city, no natural claims ap- 2. Austen v. Graham, 29 E. L. & pear to have been seriously impaired. Eq. 38. In this case, general derange- 3. Miller v. White, 5 Redf. (N. Y.) mfnt. and not monomania, was sot up .320, afTords a good illustration in by tlic contestants of the will. Tlio point. decedent had lost wife and child, and 1G8 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. 154 hence ©ccentrie habits often precede or acoorapany the disorder. 'J'his derangement, which we call monomania, admits of fine gradations. Noithing leads more naturallj to such disorder than the experience of a mind of active but ill-attuned faculties, which has been thrown back upon itself from some couse, without the sure prop of external sympathy ; and in its most decided majiifesita- tions it is selfish, and morbidly rejects the natural companionship. It would appear, too, that the person thus afflicted may retain a sufficient power of voMtion to resitrain hiis expressaons of aversion, and conceal the real depth of his delusion.* § 154. The Same Subject. Authorities in the medical jurisprudence of insanity teach us that the illusions or false impressions of the monomaniac kave 4. It is well known to those who are conversant with the insane," ob- serves Dr. Prichard, "that in persons who are considered as laboring under monomania, the mind is otherwise dis- ordered and weakened, though the characteristic illusion is the most striking phenomenon. The social affec- tions are either obliterated or pervert- ed; some ruling passion seems to have entire possession of the mind, and the hallucination is in harmony with it, and seems to have had its origin in the intense excitement of the pre- dominant feeling; this is always a selfish desire or apprehension, and the illusory ideas relate to the per- sonal state and circumstances of the individual. In most ca-ses of exclu- sive or partial mental illusion, the persons affected are abstracted, ab- sent, incapable of applying themselves to any occupation, or even of reading with attention; they either forget the objects of their strongest attachment, or if they think of them at all, it is only to accuse them of injustice and cruelty, on the most frivolous pre- texts, or the most improbable sus- picions." Prichard's " Insanity in Re- lation to Legal Questions," cited in Smith V. Tebbitt, L. R. 1 P. & D. 422. See also Dr. Hammond's tract on Insanity, quoted in 1 Whart. & Stille, § 60, note. It is laid down by this eminent physician: (1) That one of the most prominent features of this species of insanity is a morbid feeling of hatred to friends and relatives, and a disposition to do them injury. (2) That it is especially a symptom of monomania to imbibe delusions which exercise a governing influence over the mind of the affected individual, and force him to the commission of acts which in a state of sanity he would not perpetrate. (3) That the mono- maniac has power to conceal his delu- sions and to arrest the paroxysms of delirium to which he may be sub- jected. 169 § 155 LAW OF WILLS. [part II. almost always, if not invariably, a reference to himself; tlia.t at some times they relate to his fofrtune, rank, or personal identity; at others, to his health of body and his sensations. " In the former class of cases," says Dr. Pi-ichard, " tlie patient, feeling himself unhappy, fancies himself in debt, ruined, betrayed; or, being dis- posed to an opposite state of feelings, possessed of great wealth aud affluence, and superior to all mankind. The ditference of these impressions seems to depend ujDon tlie diiferent state of spirits; the persons affected by thie former kind of impressions are those whose minds are predisposed to gloom and forebodings of ill; the latter kind affect the sanguine and excitable."^ And it is matter of common note that persons so deranged often fancy themselves kings, emperors, prophets, or popes; far in dignity indeed, above the common herd of mankind. § 155. English Opinions of Monomania as affecting Testament- ary Capacity. So much of our knowledge of insanity is built upon imperfect phenomena, that we need not be surprised to find lauthorities, and eminent ones, laying down somewhat at variance the legal maxims which ought to apply to cases of insane delusion. The English rule was long considered as settled on the rational basis, that whether to set a will aside or not on the around of monomania, or some particular mental delusion, should be tested by ascertaining whether or not the will appears to have been the direct, unquialified offspring of tlie morbid or insane delusion. Upon such a dis- tinction turned the decision of Sir John Nicholl in the ce'lebrated -case of Deiv v. Clarlc,^ which was confirmed by the Court of Dele- gates, and whose judgment Loird-Chancellor Lyndhurst refused to disturb,^ observing, when objections were pressed to the use of the term " partial insanity " in the court below, that the eminent judge meant only to convey that there must be unsoundness of mind in 5. I'ricliiird's "Insanity," cto.. f:itra, § 140. 4. Sliort v. Brubaker, 94 Md. 165, 2. Fulleck v. Allinson, 3 Hagg. 527; lOG S. W. 1035. 184 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § 165 in one's mind does noit of itself destroy testamentary capacity, nor justify a court in avoiding an instrument which is unaffected b}' the fraud or undue control of either persons.^ The dislike of a spouse with whom tlie testator's relations have not been harmon- ious, or some domestic feud, may be injuriously demonstrated in a will without imputing insanity of any kind to the testator.^ Nor does proof of eccentricity, caprice, fretfulness, and a suspicious a.nd irritable temper establish either a lack of mental capacity or insane delusions incompatible with the power to dispose at dis- cretion.^ § 164. Where Will is not tainted by the Prejudice, Error, etc. Of course, if the will itself with its dispositions be not tainted by the prejudice, error, or unfounded animosity complained of, there is all the less reason for contesting it on thie allegation of an insane delusion.^ § 165. Rational or Irrational, Just or Unjust, Character of the Will to be considered. The distinction we have just dwelt upon, as between sane and insane delusion, that fallacy which is a pure figment of the dis- ordered brain and that fallacy which comes rather from a prejudice nurtured by some course of deception or self-deception, some eccen- tricity of character or hahits, such as makes one after a time obsti- nate or inveterate in his groundlesis belief or aversion, and unjustly disposed in consequence, though by no means an incapable person, is, after all, of less practical consequence in testamentary causes 5. Carter v. Dixon, 69 Ga. 82 ; Ken- strung nervous t'Cmperament, with drick's Estate, 62 P. 605, 130 Cal. "spells" of violence). For an avcr- 360; Skinner v. Lewis, 67 P. 951, 49 sion, not amounting to insane delu- Oreg. 71 (where the gossip of neigh- sion which arose from a family feud bors supplied the evidence) ; 143 N. of long standing, see the interesting Y. S. 798. case of Coit v. Patchen, 77 N. Y. 533 6. Phillips V. Chater, 1 Dem. (N. (1869). Y.) 533. 8. See Lancaster v. Alden, sttprn. 7. Blakely's Will, Re, 48 Wis. And see Owen v. Crumbaugh, 228 111. 294, 4 N. W. 337: Lancaster v. AldeJi, 380, 119 Am. St. Rep. 442, 81 N. E... 58 A. 638, 26 N. J. 170 (one of a high- 1044. 185 § 1C5 LAW OF WILLS. [pART IL than would appear at first sight. For be the delusion sane or insane, be the habits of the testator purely eccentric or such as indicate a monomania, the best English and the universial American doctrine treats all this lightly in resj^ect of capacity, p'rovided the delusion or the ecceaitricity has not operated upon the will, distorting its provisions into something unnatural and unjust. But if, on the contrary, the result is to disinherit, to cut off the natural objects of one's bounty, to produce an absurd, hurtful, irrational will, a court or a jury will set such an instrument aside with little com- punction, wherever a doubt remains; whether the testator was not fixed in his fallacy by others, so as to have been unduly in- fluenced, or else through his own morbid reflection and experience, his peculiar hiabits and mode of life, perverre likely to be set aside, when peawerted in terms from justice and natural affection, or as the Roman law styled them, inofficious, than those where the delusion, if such: it may be called, must have directly induced the baneful disposition. True, a sane mind must be peiTtiitted to work out its own harsh, cruel, and revengeful purposes for potd mortem effect; and yet, in de- termining whether there was entire sanity O'r monomania, whether the mind, even if sane, had not been brought by some other influ- ence, unfairly exerted, to operate as it did, regard may be had to tlie contents of the particular will and the circumstances surround- ing its cxocution.' 9 I'l P.oufrliton V. Knifjlit, L. R. 3 setting asido a will which disinher- P. &. D. 04, Sir James Ilaiinen, whdi it(Ml one's cliild without any just IPO €11 AP. VIII.] MONOMANIA AND INSANE DELUSIONS. § IGG § 166. Leading Principles applied to Religious Opinions; Delu- sions upon Matters Supernatural, etc. The leading principles already stated apply to tositamentary causes where the opinion, oa* rather the delusion, of a teistatoir upon religion and matters supernatural furnishes the ground of controversy. Unquestionably the speculative belief any individual may entertain concerning the preseiDt or the future state, things natural or supernatural, religion, politics, education, or any other of those agitating problems upon which men think and divide in sentiment, should properly be considered an affair of his own con- science; and it is within very narrow limits that any such belief can be confidently pronounced a delusion. And so long as one's course of conduct in pursuance of his opinions does not transcend the laws which public policy sees fit tO' p'reiscribe for society, there is no reason why he should not by testament, as well as by a gift while living, promote with his own fortune the views to which h,e has attached himself. Upon soich consider atio'iiis wills are justly made which, without unduly neglecting the claims of natural affection, endow cliurches, seminaries, and societies for the prop- agation of truth in accordance with the testator's own creed. But to all this there is a legal limit. Certain so-called truths must necessarily be obnoxious to public policy ; errors, in fact, cause, thus laid down the distinction previous to the execution of the will, essentially as above. A man moved it will be for the party setting up by capricious means, or even bad mo- that document to establish that it was tives, may disinherit wholly or par- inoperative when the will was made, tially his children, and leave his prop- See also Cockburn, C. J., in Banks v. erty to strangers. He may take an Goodfellow, L. R. 5 Q. B. 549, that unduly harsh view of the character the presumption against a will made and conduct of his children. But there under the direct influence of a delu- is a limit beyond which it will cease sion " becomes additionally strong to be a question of harsh and unrea- where the will is, to use the term of sonable judgment, and then the repul- the civilians, an inofficious one, tl at sion which a parent exhibits to his is to say, one in which natural atTec- child must be held to proceed from tion and the claims of near relation- some mental defect. If such repul- ship have been disregarded." And sion amounting to a delusion as to see Rivard v. Rivard, 109 Mich. 98. character is shown to have existed 187 § 1G7 LAW OF WILLS. [PAET IL and pernicious to society in its existing stage, according to the standard by which its safety and welfare must he judged. Opin- ions are held by individuals consicientiously and firmly — ^as, for instance, in favor of free love, commiuiity in property, the sub- version of civil authority, pure atheism — which courts, though disposed to leave speculation free, may well refrain from sanction- ing, when it comes to an individual bequest to propagate. More- over, upon some sucth subjects, religion and the supernatural world in particular, men may safely be called deluded ; and more than this, insanely deluded, monomaniacs, or even general maniacs. Especially must insanity be the symptom, where tlie enthusiast or fanatic, as often may happen, comes to imagining himself vested withi the divine or supernatural functions: as Prophet, King, or indeed, tlie Deity in person.^ Such extreme derangement, if not general, amounts at least to monomania ; and we may say of such. a person that he is crazy on religious subjects, 'though he may show himself otherwise capable and reasonable in affairs. § 167. The Same Subject. If, then, the insane delusion exists without otiier appearance of incapacity, but, on the contrary, testamentary capacity is ap- parent in all other respects, ^the essential question is whether tJie insane delusion, tJie monomania, has affected the will and the particular disposition. If it has not, but the- will appears just and natural in its provisions and duly executed, there is no reason why the will should be refused probate. But if, on ithe contrary, the insane delusion has evidently affected the provisions of the will, so as to lead its maker to bestow harshly and unjustly, — sacrific- ing, in fact, those with nat/ural claims upon the testator's bounty in order to effect some absurd or unnatural purpose, — 'tlie will ought to be set aside. And we may add, as the better inclination of the decisions, that wherever the delusion has evidently thus operated to pervert the provisions of the will in tJiis manner, there is no need of very minute inquiry as 'to whetilier the delusion was 1. See e. g. Smith v. Tcbbitt, L. R. 1 P. &. D. 398. 188 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § 168 sane or insane ; for tlie instrument itself affords strong proof that the faculties of the mind were too disordered to bear properly upon the scheme of testamenitary disposal.^ The will which delusion most surely does not invalidate is, after all, a just and rational one. § 168. Wills of Persons believing in Witchcraft, Spiritualism, Clairvoyance, etc. It follows that the will of one who believes in witchcraft, magic, ghosts, and spectral influences, whether supernatural or only mys- terious, is not on that sole account void.^ 'Nor does the belief in spiritualism invalidate a will as a matter of law; * nor the belief in clairvoyance, mesmerism, faith-cures, Christian science, or other matters upon which the majority of society are found skeptical.'^ To mal^e evidence of such belief admissible at all to show mental incapacity it must first appear that the will was the offspring of such belief. Even were one thought insane instead of credulous (or possibly wise) on such subjects, he might still be unimpaired in general testamentary capacity. But where such a belief affects undue influence, et<;. 194 CHAP, ix] PROOF OF CAPACITY AND INCAPCITY. § 17S § 173. English Authorities on this Subject. In England it is laid down that if a party impeaches a will an. aocount of insianity in the testator, he must establish such insanity by clear and saitisfactory proof; for the instrumenit purporting on its face a legal act, sanity must be presumed until the contrary is shown.^ At the same time it should be borne in mind that the presumption of sanity is not to be treated as a legal presumption, but at the utmost as a mixed presumption of law and fact (if not as a mere presumption of faot) ; that is, an inference from tbe absence of evidence to sihow that the testator bad not tbat mental soundness wbich experience shows to be tbe geneTal condition of the hiiman mind. If, tberefore, an adult's will is produced before a jury, its execution duly proved and no other evidence offered, the jury would be properly instructed to fintd for the will. And if the party opposing the will gives some evidence of incompe- tency, the jury may, nevertheless, find in favor of the will if it does not disturb their belief in the testator's competency. And in such case the presumption of competency would prevail. Still the onus iirohandi lies in every case on the party 'alleging a will^ and he must satisfy the jury that it i® the will of a capable tes- tator; and when the whole matter is before them on evidence given on both sides, if the evidence does not satisfy them that the will is the will of a competent testator, thiey oughit not to affirm by their verdict that it is so.^ The same considerations should apply where it is a judge instead of a jury who decides upon the evi- dence. On the whole, therefore, the Englisih rule appears to be, that if an adult's will, rational on the fact of it, is shown to have been duly executed, it is presumed, in tie absence of any evidence to the contraay, that it was made by -a person of competent imder- 7. 1 Wms. Exrs. 20, citing Groom 6 Ir. Eq. 611. The rules stated in V. Thomas, 2 Hagg. 434, and Burrows the text are formulated from Sutton V. Burrows, 1 Hagg. 109. v. Sadler, which is a leading case in 8. 1 Wms. Exrs. 21; Sutton v. Sad- point. Here was an action by the ler, 3 C. B. N. S. 87; Symes v. Green, heir-at-law against devisees, and the 1 Sw. & Tr. 401; Keays v. M'Donnell, validity of a will was involved. 195 § iT-i' LAW OF WILLS. [PAET II. standing. But if there are circumstances not merely opposed to, hut sufficient to counterbalance that presumption, the decree must be against thie validity of the will, unless the evidence, taken al- together, is sufficient to establish affirmatively that the testator was of sound mind when he executed it.^ Such a statement seems to import, and correctly too, that the burden being on the pro- ponent of the will tliroughiout, he has made out his prima facie case of testamentary capacity when he shows a rational instrument properly signed and witnessed. But, on the other hand, the evi- dence esitablishing due execution should leave a favorable impres- sion of capacity; and testamentary incapacity may be established by the mere cross-examination of the proponent's witneisses, with- out any direct evidence on the part of the contestant.-^ § 174. American Authorities on this Subject. These English authorities embody the best elementary rules, we think, for resohdng a ooniliot of principles, which, after all, is more apparent than real ; holding the proponent to his general proof, while giving to the presumption of sanity all that can fairly be claimed for it. From this point of view, the presumption in favor of sanity where testamentary causes are tried is not strictly a legal one, but rather one of fact; and tbe prima facie case in favor of the proponent, when the will is asisailed as the offspring of insanity, not only does not relieve him from estaJblishing capac- ity as the ultimate conclusion upon the whole evidence, but is itself the result of facts he has establisihed at the outset, a first stage reached in propounding the will. The adult's will, not an 9. 1 Jarm. Wills, 35, note; Symes posed on the party propounding a V. Green, supra. will; it is in general discharged by 1. Keays v. M'Donnell, 6 Ir. Eq. proof of capacity and the fact of ex- 01 1. ecution." And he further proceeds " The strict moaning of the term to show that the fact of capacity is ' onus prohandi ' is this," says Baron so far involved in the proof of the Parke: "that if no evidence is given execution, that the other pnrty may by the party on whom the burden is cross-examine the subscribing wit- cast, the issue must be found against nesses upon that point. Barry v. him. Tn all cases this onus is im- Butlin, 1 Curt. 637. 19G CHAP, ix] PROOF OF CAPACITY A^TD INCAPCITY. § 174 irratiomal one on its face, is shown to have been properly executed and witneesied ; hence it may fairly be prosiunod tbat the testator was competent and unrestrained in disposing of his property ; but these presumptions, being of fact or of mixed law and fact, may be rebutted, so diat the proponent has nothing more than a prima facie case in his favor. In various Sitates, however, the presumption in favor of sanity has been styled a legal presumption, and appears to have been so treated in testamentary causes. In an important Massachusetts case, a majority of the court ruled that the legal presumption, in the absence of evidence to the contrary, is in favor of tlie sanity of a 'testator ; a statement from which one judge dissented, though all the court agreed that this does not change the burden of proof, which always rests upon those seeking tlie probate of the will.^ The IvTew York doctrine (agreeably to the common law and the local statute expression) is stated more recently to the; same effect: namely, that the legal presumption, to begin with, is that every man is compos mentis,, and the burden of proof that he is non compos mentis rests on the party who alleges that condition of mind. " But it is also the rule," adds the court, " fthat, in the first instance, the party propounding the will must prove the men- tial capacity of the testator." ^ Other opinions are expressed to the same effect.* A discrepancy of statement in this respect, how- ever, is sometimes referred to the construction of some local statute of wills.^ This difference, though much dilated upon, is more verbal than substantial, as commonly applied. All, or most, of- onr decisions agree in substance, that whether as a legal presiumption or as a 2. Baxter v. Abbott, 7 Gray, 71, 83 Wms. Exrs. 21, Am. edition; Aikin v. (1856), Thomas, J., dissenting. Cf. Weckerly, 19 Mich. 482. Crowninshield v. Crowninshield, 2 5. See Hoar, J., in Baldwin v. Par- Gray, 524. ker, 99 Mass. 79; Knox's Appeal, 26 3. Harper v. Harper, 1 N. Y. Supr. Conn. 20; Baker v. Baker, 67 N. E. 351, citing Delafield v. Parish, 25 N. 410, 202 111. 595, 69 P. 294, 136 Cal. Y. 9. 558. 4. See Perkins's ample note to 1 197 S 174:' LAW OF WILLS. [part II. presumption of fact or mixed presumption, amounting only to a prima facie case, there exists, upon proof that the will, a natural one on its face, was duly executed by an adult not O'therwise in- capacitated, a presumption in favor of the tesitator's sanity which, they who impeach tJie will are bound at tliis stage to overcome.® And the larger and better class of American authorities point, moreover, to the conclusion that the court or jury trying the case must, upon the whole evidence, by a fair preponderance, be satis- fied that the testator was of sound mind ; so that if there be inevit- able doubt left on this point from all of the testimony, the will cannot be considered as proved.^ This conforms practically to the English rule already stated.^ 6. 1 Wms. Exrs. 21, Am. Ed., note by Perkins; Cotton v. Ulmer, 45 Ala. 378, 6 Am. Rep. 703; Thompson v. Kyner, 65 Penn. St. 368; Perkins v. Perkins, 39 N. H. 163; Kempsey v. McGinnis, 21 Mich. 133; Herbert v. Berrier, 81 Ind. 1; Day v. Day, 2 Green Ch. 549; Fee v. Taylor, 83 Ky. 259, 130 111. 69, 22 N. E. 353; Mc- Cnlloch V. Campbell, 49 Ark. 367, 5 S. W. 590; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21; Wagner v. Ziegler, 44 Ohio St. 59, 4 N. E. 705, 179 Penn. 386, 36 A. 1130; Barber's Appeal, 63 Conn. 393, 22 L. R. A. 90, 27 A. 973; Hull's Will, 89 N. W. 979, 117 L)Wa, 738; Merriman v. Merriman, 55 N. E. 734, 153 Ind. 631, 63 S. W. 617, 23 Ky. Law, 627; Jones v. Collins, 51 A. 398, 94 Md. 403, 73 S. W. 129, 173 Mo. 59; Wilkinson v. Service, 94 N. E. 50, 249 111. 146; Mordecai v. Canty, 68 S. E. 1049, 86 S. C. 470; McXitt's Estate, 78 A. 32, 229 Pa. 71; Martin's Will, 144 N. Y. S. 174; Wells V. Tliomp.son, 78 S. E. 823, 140 Ga. 119, 47 L. R. A. (N. S.) 723, 157 S. W 609, 350 Mo. 633; Cherry's Will, 79 S. E. 288, 164 N". C. 363. 7. Crowninshield v. Crowninshield, 2 Gray, 524; Delafield v. Parish, 25 N. Y. 9 ; Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473; McGinnis v. Kempsey, 27 Mich. 363; 1 Jarm. Wills, 38; Turner v. Cook, 36 Ind. 129; Tingley v. Cowgill, 48 Mo. 291; Williams v. Robinson, 42 Vt. 658, 1 Am. Rep. 359; Aiken v. Weckerly, 19 Mich. 482; Knox's Appeal, 26 Conn. 20; Renn v. Lamon, 33 Tex. 760; Thompson v. Kyner, 65 Penn. St. 368; Boardman v. Woodman, 47 N. H. 120; Wetter v. Habersham, 60 Ga. 193; 26 Penn. St. 404; Day v. Day, 2 Green Ch. 549; 2 Rich. 329, 70 N. E. 675, 209 111. 193 ; Fulton v. Umber- hend, 67 N. E. 829, 182 Mass. 487; Rathjons v. Merrill, 80 P. 754. 38 Wash. 482; Baker v. Baker, 67 N. E. 410, 202 111. 595; Slaughter v. Heath, 127 Ga. 747, 57 S. E. 69, 103 Me. 72, 118 Am. St. Rep. 266; Van Don Heuvel's Will, 136 N. Y. S. 1109; Pickett's Will, 89 P. 377, 49 Oreg. 127; Pepper v. Martin, 92 N. E. 777, 175 Ind. 580. 198 €HAP. ix] PROOF OF CAPACITY AND INCAPCITY. § 175 § 175. The Same Subject: Whether Subscribing Witnesses must first testify as to Insanity. A mo'ro difficult iiKjuiry suggested in this connection relates to the duty of offoi-ing positive pax)of of capacity from the witnesses to tlie will. One would suppose that the simple fact that two wit- nesses or more (according as the local statute may have pre- scribed), append 'their signatures in the execution of the will, strengthens materially any presumption which may arise in favor If, however, a local statute puts one burden upon the contestant, or mce versa, that statute must regu- late. 86 P. 695, 149 Cal. 227. And cf. § 213a, post. See also Chamber- layne Evid. § 955; Bensberg v. Wash- ington University, 158 S. VV. 330, 251 Mo. 641 (statute). " In the course of the trial the bal- ance of testimony may fluctuate from one side to the other, but the burden of proof remains where it was at the outset; and unless at the close of the trial the balance is with the propon- ent, he must fail. It is not suffici- ent that the scales stand even; there must be a preponderance in his favor." Per curiam in Williams v. Robinson, supra. In some opinions quite extreme grounds is taken against any pre- sumption of a testator's sanity. Wil- liams V. Robinson, 42 Vt. 658, is a case in point. See also Robinson v. Adams, and Knox's Appeal, supra. " The presumption that the person making a will was at the time sane, is not the same as in the case of the making of other instruments; but the sanity must be proved." Gerrish v. Nason, 22 Me. 438. And see Cilley v. Cilley, 34 Me. 162. And opinions like these distinguished wills from such instruments as a deed or con- tract, which, if executed, are pre- sumed to be rationally executed ; or construe in support of their theory such local statutes as provide that " all persons of sound mind " may make wills. But in Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666, not only is the distinction taken between deeds and wills repudiated, but the presumption of sanity is asserted quite as strongly in the other direction. And here it is ruled with emphasis that the bur- den of proof lies upon the person who asserts unsoundness of mind. See also the judicial remarks in Sloan v. Maxwell, 2 Green Ch. 580; Tyson v. Tyson, 37 Mo. 567; Grubbs v. Mc- Donald, 91 Penn. St, 236; Gray v. Rumrill, 44 S. E. 697. 101 Va. 507. The safer opinion steers between these two extremes; and nothing bet- ter reconciles the discrepancy of opin- ions as thus expressed (for, after all, some discrepancy must be admitted) than to compare the cases by their respective decisions upon the facts ac- tually presented. If we do this, we shall find the conflict reduced to a very narrow range. Where no evi- dence of incapacity is produced, very slight evidence of capacity should, at all events, be enough for a favorable presumption. 199 § 175 LAW OF WILLS. [pART IL of the testator's sanity, or the prima facie case on behalf of the will. For why should two or thiree have signed thus, unless intending some sort of a voucher that the testa/tor appeared to know what he was about ? Though, to be sure, if any such witness were closely questioned in court, his testimony might prove the reverse of fav- orable on this point.^ Unfortunately, in this country wills are witnessed out of good nature by nersons who seem quite heedless of the responsibility tihey incur in so doing ; and it is distinctly ruled that by the mere fact of attestation no presiunption is afforded of any opinion which the witness may have had, favourable or unfavor- able, cx)nceming the sanity of the tesitator.^ But the cases on this point are not quite harmonious ; and we may still infer that wher- ever execution is proved of a will natural and regular upon its face, and there is an absence of further evidence upon the point of sanity, the proponent ought to be entitled to probate.^ This brings us to the real practical difference between American cases which hold to the presumption of sanity with greater or less force : namely, that in some courts, contrary to the general opinion, it is held tha.t the party propounding a will must not only prove execution, but must also offer positive proof of his testator's capacity. Thus, in Massachusetts practice, the subscribing wit- nesses are called upon to testify not only concerning the fact of execution, but as to the testator's mental condition besides. Withi- 8. Supra, § 173. . . , That is the problem to be 9. By English tribunals, a subscrib- solved." And see § 181, post. ing witness who deliberately purposes 1. Baxter v. Abbott, 7 Gray, 71; to testify against tlve will, is looked Boardman v. Woodman, 47 N. H. 130; upon with great disfavor. In Tat- Thompson v. Kyner, 65 Penn. St. 368. ham V. Wright, 2 Russ. & My. 1, And see Williams v. Robinson, 42 Vt. where two subscribing witnesses had 664, 665. declared they would testify against 2. Perkins v. Perkins, 39 N. H. 169, the testator's capacity, Tindal, C. J., and eases cited; Baxter v. Abbott, 7 made this severe comment: "The Gray, 71; Delafield v. Parish, 25 N. real question is, whether these wit- Y. 9; Wilbur v. Wilbur, 129 111. 393, nesses are to be believed upon this 21 N. E. 1076; Waters v. Waters, 78 evidence, in contradiction to their N. E. 1, 222 111. 26, 113 Am. St. Rip. own solemn act in the attestation. 359. 200 CHAP, ix] PKOOF OF CAI'ACITY AND INCAPCITY. § 175 out such proof, it is said, no will can be set lup.^ Should their testi- mony be favorable, the prima facie case in favor of proba4:e is no douibt strongly fortified ; if 'the reverse, little remains of the pre- sumption, legal or otherwise, in favor of sanity. But even in Massachusetts, were all the witnesses to tlie will dead, incapable, or in unknown parts, so that none could be produced, 'the execution of the will could be proveed by evidence of their handwriting; and upon this proof, without other evidence showing sanity or in- sanity, the proponent would be entitled to probate.* In many, perhaps the majority, of our courts, no evidence of the testator's competency, nothing beyond the mere formal proof of execution in aid of the natural presumption of sanity is requisite in order to make out a 'prima facie case in favor of the will.^ And op. the whole, American authority preponderates to the view that when the witnesses produced for proba/te are not only questioned upon the fact of execution, but asked besides whether they regarded the testator as of sound and disposing mind and memory, this last is form merely, or at least precautionary, and not indispensable to establishing the presumption of capacity upon which probate should be granted.^ 3. Brooks v. Barrett, 7 Pick. 94; execution, and may then wait till Crowninshield v. Crowninshield, 2 some impeachment of the instrument Gray, 524, per Thomas, J.; Gerrish v. is offered by counter-proof, conforms Nason, 22 Me. 438. " The presump- to the English rule. Supra, § 173 ; tionj therefore, that the person mak- Sutton v. Sadler, 3 C. B. N. S. 87. ing a will was, at the time, sane, is 6. See Thompson, C. J., in Thomp- not the same as in the case of the son v. Kyner, 65 Penn. St. 368. And making of other instruments, . . . Bell, C. J., in Perkins v. Perkins, 39 but the sanity must be proved." 22 N. H. 163, 168, explains this practice Me. 438, 441. (which pertains in Pennsylvania, 4. Baxter v. Abbott, 7 Gray, 71. New Hampshire, and some otlier 5. Perkins v. Perkins, 39 N. H. States as well as Massachusetts), 163; Beaubien v. Cicotte, 8 Mich. 9; consistently with the presumption of TaflF V. Hosmer, 14 Mich. 309 ; Thomp- sanity. " Its object is," he says, son V. Kyner, 65 Penn. St. 568. That "that if it appears that there is the party propounding the will is not either doubt or suspicion on the ques- obliged to examine the witnesses, in tion, that doubt may be removed be- the first instance, beyond the fact of fore the estate is placed in the hands 201 176 LAW OF WILLS. [part II. § 176. When Evidence of Unsoundness appears from Examina- tion of Witnesses, Proponent must overcome it. According to the better opinion, if witnessies to the will, in the course of their examination, give testimony which leaves a genuine doubt of the isanity of the testaitoT at the date of execution, the pro- ponent cannot rely upon any general presumption of sanity in aid of his proof thiat the instrument was formally execu'teid ; he cannot claim that no evidence of insanity has been given by the contestant or, if given, that it will no more than balance the presumption on his side; but having himself the general burden of proving capacity, he must turn the scale, or the will he offers is not estab- lished.^ There are States, it is true, in which the court lays down a rule less favorable in expression to the party who assails a will. Testa- mentary capacity, o'bseirves a Pennsylvania ease, is the normal condition of one of full age, and the aflB.rmative is with the party who undertakes 'to call it in question ; and this afBrmatiive must be established, not in a doubtful, but in a positive manner.* And other dicta may be found, bearing quite as strongly against the contestant who sets up insanity.* But when, aside from such dicta. of a man who may prove to have no title to it. We think that, although the subscribing witnesses, if they can be produced, must be examined in re- lation to the soundness of the testa- tor's mind, yet the party propound- ing a will for probate is under no general duty to offer any evidence of the testator's sanity, but may safely rely upon the presumption of the law that all men are sane until some evi- dence to the contrary is offered " Statu t*!S sometimes undertake to specify the proof required. See 40 Minn. 371. 7. See Aiken v. Weckerly, 19 Midi. 482, and cases cited. Here throe wit- nesses testified. One of them api)e;irs to have given no opinion as to the 20 testator's sanity; and of the other two, one testified that the testator was sound, and the other that he was unsound. See also Sutton v. Sadler, 3 C. B. N. S. 87; Symes v. Green, 1 Sw. & Tr. 401 ; Bever v. Spangler, 93 Iowa, 576, 61 N. W. 1073. See Keays V. M'Donnell, 6 Ir. Eq. 611, that it is enough for the contestant to break down the witnesses by a cross-exami- nation. And see supra, § 173. 8. Grubbs v. McDonald, 91 Penn. St. 236, citing other Pennsylvania cases on this point. 9. Dolafield v. Parish, 25 N. Y. 9. ])r()])ositions laid down by a majority of tlip court; i''roar v. Williams, 7 I'.axt. 550; 44 N. .1. Va\. 154; Taylor v. Pegram, 151 III. lOG. 2 ■CHAP. IX.] riiOOr 01^' CAPACITY AND INCAPACITY. § 1T7 we examine the facta passed uipon by the court, we shall generally find tliiat the decision qiiiite accords with the proposition we have advanced ; that 'the witnesses to the will, so far as their testimony had been drawn out, affirmed the oapacity of the testator ; in short tliat there was no equipoise, but a turn of tine scales in favor of sustaining the will. At such a posture the proponent may well resit his case unless the contestant has some affirmative proof of insanity to offer. But certainly, where there is evidence tending to show insanity, the court must not rule peremptorily against those who oppose the will.^ On an issue as to testamentary capiacity, where tlie evidence is -conflicting, after a fair trial before a jury (as ouir probate appeals from the county judge as trier are commonly conducted), to whom the proof is submitted under propea* instruction, the finding of the jury concludes thie point. § 177. Production of Subscribing Witnesses if possible. Wherever a will is offered for probate, the subscribing witnesses are the primary and chief resource for establishing the instrument to the satisfaction of the court or jury. These witnessies, varying in number under our local enactment®, from two to three or mo^re, should be produced if possible, in case of a contest; but in uncon- tested wills or a probate in common form, a less number, perhaps one, may usually suffice ; while in some States, even when opposed, the proponent calls only such witnesses as may give him a good prima facie case, and there restis.^ If a witness be dead, incapable, or in parts unknown and beyond the jurisdiction, his handwriting is proved, and such issues as the present musit necessiarily be deter- mined without him.^ As to the production, if possible, of all the subscribing witnesses by the party propounding the will, where an issue is made, the American rule is not uniform. In Vermont, for instance, all must 1. Reichenbach v. Ruddacli, 127 123. See as to attestation, etc., post, Penn. St. 564. § 348. 2. Thornton v. Thornton, 39 Vt. 3. Baxter v. Abbott, 7 Gray, 71. 203 § 178 LAW OF WILLS. [pART II. be pixxlucecl and examined by tbe proponent unless this is shown to be impracticable/ The Xew Hampshire rule favors summon- ing aJl who are alive, capable and within the jurisdictiou where controversy arises.^ In Connecticut, on the other hand, the party propounding the will need not produce all within reach of process at his own instance, nor unless 'the contestant insists upon it ; and the latter, by not insisting, will be presmued tO' have waived hi» privilege in that respect.^ Still less ought the proponent, if he has produced all these witneases in court, to be compelled invariably to ask each one to itestify ; for any subscribing witness he may have omitted, the contestant can call to the stand; and one does not choose to weaken his own cause. A subscribing witness, after being examined by the one party may be cross-examined by the other.' Even where a will is contested, it may be regularly established by the evidence of one subscribing witness and testimony that the other or otherts actually signed as such, if the absence of the latter be duly accounted for and there is good corroborating evidence of capacity.* § 178. Testimony of Subscribing Witnesses Important, but not Conclusive. Great v^^ight is attached to what these subscribing witnesses may have to say concerning the testator's apparent mental condition and all the circumstances surrounding the execution of the will. Examination and cross-examination may elicit from them much that is vitally important on the issue of testamentary capacity^ But though these parties aire witnesses for the will, and the pro- ]X)nent may be bound to produce or account for them, or even to examine all in turn, they are not his witnesses in any such sense 4. Thornton v. Thornton, 39 Vt. 6. Field's Appeal, 36 Gonn. 277; 122; Alexander v. Beadle, 7 CoMw. Attestation, post. 126. A witness not within reach of 7. He may be thus discredited. 64 State process need not be pmduced. Md. 138, 21 A. 273; 6 Ir. Eq. 611. 60 Vt. 524. 8. Jones v, Roberts, 96 Wis. 427, 70 5. Whitman v. Morey, 63 N. II. 448 N. W. 685, 71 N. W. 883. Cf. 16& (probate in solemn form). 111. 459, 48 N. E. 113. 204 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 179 as to detoar him from disorediting 'tlieir tesitimony whenever it bears against the instrmuent he has offered for pro'bate. The final decisiion of the case does not depend upon them, but upon all the evidence adduced on both sides. The value of the subscribing wit- ness's testimony as to capacity or undue iniluence should be weighed like tliat of any O'thcr witness. And the fact that any or all of the subeciribing witnesses testify against the testator's mental capacity, does not conclude the proponent, if other witnesses testify favor- nbly ; for the will may be established upon sufBcient proof in op- position to the testimony of any or all of the subscribing witnesses.* § 179. English Practice as to producing the Subscribing Wit- nesses. Tlie Englisb. ecclesaastical courts, undeir tihe system prevalent in that country before probate courts we^re instituted, had no jui*is- diotion of wills affecting real estate ; and disputes of title under soich wills were usually adjudicated in the common-law courts on the issne of devisavit vel non, or else in an action of ejectment. To these courts, an equity tribunal would send an issue of this kind for trial, under its own directions ; anid one standing direc- tion was, that in proving a will, the proponent should produce all the subscribing witnessejs at the trial, unless this should be shown impracticable or the opposite party waived the requirement.^ The general rule in Englisli courts at present, when such issues are tried, is, that the proponent of the will must p-roduce all the 9. Thornton v. Thornton, 39 Vt. no special consideration on the ques- 122 ; Martin v. Perkins, 56 Miss. 204 ; tion of the testator's capacity by rea- Frear v. Williams. 7 Baxt. 550, 556; son of the mere fact that they are Alexander v. Beadle, 7 Coldw. 126; witnesses. Crandall's Appeal, 63 Garrison v. Garrison, 15 N. J. Eq. Conn. 365, 38 Am. St. Rep. 375, 28 266; Turner v. Cheesman, ib. 243. A. 531. See Chamberlayne Evid. §§ So may the unfavorable testimony of 1923-1927. a sole surviving witness be overcome 1. Story Eq. Jur. § 1447 ; 1 Redf. on the issue of undue influence. Wills, 34; Ogle v. Cooke, 1 Ves. Sen. Coleman's Estate, 185 Penn. St. 437, 177; Tatham v. Wright, 2 Russ. & 40 A. 69. The testimony of subscrib- My. 1. ing witnesses to a will is entitled to 205 § 181 LAW OF WILLS. [pAET IL subscribing witnesses available and make tihem his witnesse's, giv- ing to tlie contestant 'an opportuJiity to cross-examine tbem.^ But under peculiar circumstances the court will dispense with this necessity, especially if all the witnesses have been produced in court by the proponent, so that the other party might have called the omitted witness.^ § 180. Declarations of Deceased or Absent Subscribing Wit- nesses Incompetent as to Sanity or Insanity. The declarations of a deceased subscribing witness, or of one beyond the jurisdiction, tending to show that he thought the tes- tator sane or insane, are ineompeitenti testimony on the issue of sanity or insanity ; * for cross-examination cannot be applied to such testimony. § 181. How Witnesses may test Capacity for themselves; they should not execute unless satisfied. Dr. Taylor lays down this rule for testing the mental capacity of a person to do an act requiring a sound and disposing mind : " If a medical man be present when the will is made, he may easily satisfy himself of 'tihe state of mind of the testatoT by requiring him to repeat from memory the mode in which he has disposed of the bulk of his property. Medical men have sometimes placed themselves in a serious position by becoming witnesses to wills under these circumstances, without first assuring themselves of the actual mental condition of the testator. It would always be a good ground of justification, if, at the request of the witness, the tesitator had been made to repeat substantially the leading provisdons of his 2. lb.; Tatliam v. Wrifrht. 2 Russ. visee scckinj^ to establish the will, but & My. 1; Barry v. Bntlin, 1 Curt. by the heir-at-law calling upon the 637; Keays v. M'Donnell, 6 Ir. Eq. court to declare it void. Oil. 4. Baxter v. Abbott, 7 Gray, 71; 3. Lf)we V. .Jolifre, 1 W. Bl. 365; St'wall v. Robbins, 139 Mas.s. 164; Tut ham v. Wright, supra. Boardman v. Woodman, 47 N. H. 120; In Tatham v. Wright, the pe-ul:ar Tlionipson v. Kyner, 65 Penn. St. 368. Hitiiation of the parties litigant was See Williams v. Robinson, 42 Vt. 664, that a bill was filed, not by the de- 1 Am. Rep. 359. 206 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. 181 will from memory. If a dying or sick peirson [or any other one] cannot do 'this without prompting or suggestion, the-re is reason to believe that he has not a sane and disposing mind." ^ This rule meets the warm approval of so high an American authority as Judge RedfieM;^ but it must be confessed, that in this countrv', at least, testators are not disposed to submit to cate- chising from those whom they may have called in to witness their wills, nor even to state to them confidentially the details of testa- mentary disposition. The bystander, whether a medical man or not, may however, on his part, well refuse to take the responsibility of a subscribing witness, where he suspcx'ts that the will is an absurd or unjust one, or strongly doubts whether the testator him- self freely and intelligently executes it. Persons in these days are of too accommodating a disposition about lending their signaitures in such a case and then stultifying theimselves at the probate,'^ One 5. Ray Med. Jur. 658. 6. 1 Redf. Wills, 95. 7. Judge Redfield condemns in un- qualified terms the practice, too com- mon in the United States, often through a misapprehension of the law, of heedlessly witnessing a will without regard to the propriety of its execution under the peculiar cir- cumstances. " It seems to be con- sidered," he justly observes, " that they are only witnesses to the act of signing. But when it is considered that the witnesses to a will must cer- tify to the capacity of the testator, as well as to the act of execution, the transaction begins to assume a some- what different aspect. One who put his name as a witness to the execu- tion of a will, while he was conscious the testator was not in the posses- sion of his mental faculties, places himself very much in the same at- titude as if he had subscribed as wit- ness to a will which he knew to be a 20 forgery, which every honorable man could only regard as becoming acces- sory to the crime by which the will was fabricated." 1 Redf. Wills, 96. That the person, however, who knows nothing of the contents of the will which he is called upon to wit- ness, signs at a disadvantage, and might, when the instrument is after- wards exposed for probate, appreciate circumstances attending the act of execution, while the testator was fee- ble, failing in mind, and surrounded by advisers or interested parties, dif- ferently from what he did when pres- ent at the execution and participat- ing in the act, is obvious. This is a peril to which the testator may ex- pose the will by his chosen secrecy. But, aside from such a consideration, the witness who subscribes and then discredits the instrument at the pro- bate, has seriously compromised his honor. And if a professional man, who fully comprehends what the law § 182 LAW OF WILLS. [pAET II. should only subscribe as witness when he can conscientiously testify- without reserv^e in favor of the will and its proper execution; and it is for the true interest of every rational testatOT to procure wit- nesses who will stand resolutely by the trausaction against all in- sidious or open opposition to the probate. § 182. The Same Subject. '' ]^o person," says C'hancellor Walworth on this point in clear and emphatic language, " is justified in putting his name, as a subscribing witness, to a will, untess he knows from the testator himself that he understands wha.t he is doing. The witness should also be satisfied, from his own knowledge of the state of the tes- tator's mental capacity, that he is of sound and disposing mind and memory. By placing his name to tihe instrumenit, the witness, in effect, certifies to his knowledge of the mental capacity of the testat-or, and that the will was executed by him, freely and under- standingly, with a full knowledge of its contents. Such is the legal effect of the signature of the witness, when he is dead, or is out of the jurisdiction of the court." ^ expects of his testimony, he cannot power of a court of equity was fully excuse a folly so disastrous in its sufficient to meet with every fraud consequences. that could be .practiced in these cases, 8. Scribner v. Crane, 2 Paige, 147. after the contract was reduced to See also Garrison v. Garrison, 15 N. writing. But a will was a voluntary J. Eq. 266. disposition, executed suddenly (not Lord Camden early pointed out unfrequently), in tne last sickness, how peculiar a stress the Statute of oftentimes almost in the article of Frauds had laid upon the quality of death. And the only question that the witnesses to a testament as dis- can be asked in this case is. Was the tinguished from those in other tran- testator in his senses when he made sactions. A will, he observes, is the it? And consequently the time of ex- only instrument in this statute re- ecution is the critical minute that re- quired to be attested by subscribing quires guard and protection. Here witnesses at the time of execution. you see the reason why witnesses are " It was enough for leases and all called in so emphatically. What other conveyances to be in writing. fraud aro they to prevent? Even These were all transactions of health, that fraud so commonly practiced and protected by valualjle considera- upon dying men whose hands have tions and antecedent treaties. The survived tlieir heads; wlio have still 20S CnAP. IX.] PEOOF OF CAPACITY AND INCAPACITY. § 184 § 183. Effect of a Statement in the Attestation Clause, vouch- ing for the Testator's Sanity. Til© attestation clause in a will might well be drawn so as to certify expressly tLe belief of tbe subscribing witnesses that the tes-- tator at the time of execution was of sound mind and memo^ry. To contradict under oath at the trial such a writing must greatly dis- credit a subscribing witness unless he can account for the discrep- ancy; as for instance, by showing that he signed doubtfully and with little opportunity to judge, and that the contents and char- acter of the will, when exposed to view, convinced him to the con- trary; and even thus, his honest opinion should carry very little weight in the case.* § 184. Proponent goes forward and has Right to open and close the Case. Since the party setting up the will has the general burden to esitablish it, the rule is that he goes fo^rward in the proof and has the opening and close of the case; ^ and such is the general practice where sanity is at issue. ^ But in Maryland the practice conforms to the extreme view taken upon thie presumption of sanity ; and caveators who assert unsoimdnesis of mind are regarded as plain- stren^h enough to write a name or ble witnesses." Hindson v. Kersey, make a mark, though the capacity of 4 Burn Eccl. Law, 85, 88. See also disposing is dead. What is the con- Tindal, C. J., in Tatham v. Wright, dition of such an object, in the power 2 Russ. & My. 1, cited supra, § 175. of a few who are suffered to attend 9. See Garrison v. Garrison, 15 N. him, wheedled or teased into submis- J. Eq. 266; pt. III. c. 3, post. sion for the sake of a little ease? Put 1. Supra, §§ 170, 174. to the laborious task of recollecting 2. Boardman v. Woodman, 47 N". the full estate of all his affairs, and H. 120; Robinson v. Adams, 62 Me. to weigh the just merits and demerits 369; Brooks v. Barrett, 7 Pick. 96; of those who belong to him, by re- Comstock v. Iladlyme, 8 Conn. 261, membering all and forgetting none. 20 Am. Dec. 100; Taff v. Hosmer, 14 . . . Who, then, shall secure the Mich. 309; Kempsey v. McGinniss, 21 testator, in this important moment, Mich. 123; Williams v. Robinson, 42 from imposition? Who shall protect Vt. 658, 1 Am. Rep. 359; Syme v. the heir-in-law, and give the world a Boughton, 85 N. C. 367; Tlieological satisfactory evidence that he was Seminary v. Calhoun, 25 N. Y. 422; sane? The statute says, three credi- 1 Bradf. 69, 94. 14 209 § 185 LAW OF WILLS. [pART IL tiffs witJi the burden of proof upon them, and they have the right to open and cJose.^ The same rule obtains in Delaware/ And in some States it is held that on appeal from the probate court in such trials the appellant becomes the actor and has the opening and close both in evidence and argument.^ § 184a. Prima Facie Case, how established. Where tihere is no contest a will may be established by one only of the attesting witnesses, if he can testify to a compliance with the sitatute regarding its execution, and upon the question of sanity gives a satisfactory response. And in general, the proponents of an adult's will make a ynma facie case, where the formal execu- tion of the vdll according to statute is proved, and the two or three subscribing witnesses testify favorably upon the question of sanity.® § 185. Questions of Validity at Issue; Testamentary Capacity to be determined upon all the Evidence. But as a general rule, wherever the issue is presented, whether a certain document pi-opounded is the lasit will of the deceased, all questions affecting the validity of the instrument may be pre- sented ; ' and testamentary capacity or incapacity becomes in the main a decision of fact upon all the evidence presented, and the preponderance of the testimony, every material circumstance being weighed in proof.^ A liberal discretion is allowed to the trial judge in the admission of s^oh evidence.^ 3. Brooke V. Townshend, 7 Gill, 24; 145 Mo. 432, 46 S. W. 955; Sling- Jones V. Collins, 51 A. 398, 94 Md. lofT v. Bruner, 174 111. 561, 51 N. E. 40.3: Leach v. Burr. 23 S. Ct. 393; 772; §§ 173, 174; 143 N. Y. S. 433. 105 Md. 81, 65 A. 918. 7. Davis v. Rogers, 1 Houst. 44. 4. (handler v. Ferris, 1 Harring. 8. Gardiner v. Gardiner, 34 N. Y. 400. 155; Barber's Appeal, 63 Conn. 3:)3, 5. Rice (S. C), 35, 271. See Run- 27 A. 793; Hess v. Killebrew, 70 N. yon V. Price, 15 Ohio St. 1, 86 Am. E. 675, 209 111. 193. Dec. 459 (appeal iiniler llie local stat- Whore the will appears absurd or ute). irrational on its face, and not merely 6. Sec I'ulbright v. I'erry County, harsh, an unfavorable presumption 210 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. ISG § 186. Testamentary Capacity at the Date of the Transaction the Real Point at Issue. Nor shoiiid it be forgotten that tesitamentary capacity or inca- pacity at rtlie pirecise date of the transaction is the real point ut issue. Hence the condition of the testator's mind shortly before or after executing the instrument, is only of iinpoirtance so far as it establishes his mental condition ait the time when the execution actually occurred. The fact of a testator's subsequent suicide, of his sudden death from apoplexy, or even of an attack of apoplexy shortly before he made his will, bears simply upon that point, as we have already shown. ^^ And fi-om the instances already adduced arises. Bradford v. Blossom, 105 S. W. 289, 207 Mo. 177; Blackman v. Andrews, 150 Mich. 322, 114 N. W. 218. Of course, proof "beyond a rea- sonable doubt," as in criminal cases, has no application here. 34 So. 325, 82 Miss. 1. And see Beemer v. Beemer, 96 N. E. 1058, 252 111. 452 (harsh and unequal distribution of property). Where the will was such as might naturally have been expected from a testator of such a character and so situated it deserves favor. See § 77. 9. Guarantee Trust Co. v. Wal- ker, 88 A. 13, 240 Penn. 575. Cf. Sibley v. Morse, 109 N. W. 858, 146 ]\Iich. 413; Adams v. Methodist Church, 96 N. E. 253, 251 111. 268; Hamburger v. Rinkel, 64 S. W. 104, 164 Mo. 398 (capacity three months after executing) ; Todd v. Todd, 77 N. E. 680, 221 111. 410; Cullum v. Colwell, 83 A. 695, 85 Conn. 459; Nichols, Re, 62 A. 610, 78 Conn. 429; Surface v. Bentz, 77 A. 922, 228 Pa. 610; Wharton's Will, 109 N. W. 492. 132 Iowa, 714; Spen- cer v. Terry, 94 N. W. 372, 133 Mich. 39; Dudderar v. Dudderar, 82 A. 453, 116 Md. 605; Ward v. Brown, 44 S. E. 488, 53 W. Va. 227; McCoy v. Jor- dan, 69 N. E. 358, 184 Mass. 575; Threkeld v. Bond, 92 S. W. 606, 29 Ky. Law, 177; Buckman's Will, 85 A. 246, 80 N. J. Eq. 556; Taylor v. Taylor, 93 N. E. 9, 174 Ind. 670 (five years later) ; Wilkinson v. Service, 94 N. E. 50, 249 111. 146; Walker's Will, 152 Iowa, 154. 128 N. W. 386. All irrelevant testimony shou'd be excluded and the discretion of the judge should largely control as to the relevancy of such testimony. ^Ic- Coy V. Jordan, supra; 127 Penn. St. 564, 18 A. 432. 9a. Supra, §§ 119, 120. See Lewis's Will. 51 Wis. 101, 7 N. W. 829, where the will of one who had an epileptic fit shortly before and shortly after executing it was sustained; also Brown v. Riggin, 94 111. 560; 77 N. Y. S. 663. As to suicide, see Burrows V. Burrows, 1 Hagg. 109; 2 Curt. 415; Elwee V. Ferguson, 43 Mo. 479; Duf- field V. Morris, 2 Harring. 375; God- den V. Burke, 35 La. An. 160; Brooks V. Barrett, 7 Pick. 94. Hence mental condition on the day before or the 211 § 187 LAW OF WILLS. [part H. one may gather how strong, on the whole, should be ith.e proof of a testator's insanity in ordeir to invalidate the instrument offered as his last will and testament.^ § 187. Various Matters of Proof bearing upon this Issue; In- sanity once shown, presumed to continue, etc. When the habit of general insanity is onioe s-hown to have ex- isted not very long before the execution of the will in question, it will be &o far presumed to have continued tO' the date of execution that the proponent must ove'rcome this unfavoirable presumption before the will he offers can be established.^ So, too, does proof that the testator was under guardianship for insanity much dis- credit his will.^ But all unfavorable presumptions of this kind, whether stronger or weaker, may be removed by appropriate tes- timony ; * and it is sufficient for the proponent to show that suoh insanity had ceased to exist when the will was executed, or that w lucid interv^al o^r respite from the malady.^ it never existed at all, or that the will was made during some day after making a will is admissible to show mental condition on the day of making the will. Dyer v. Dyer, 87 Ind. 13. 1. For instances of evidence, whether seasonable or too remote in point of time, cf. De Laveaga's Es- tate, 133 P. 307, 165 Cal. 607; Brain- ard V. Brainard, 103 N. E. 45, 259 111. 613; Smith's Will, 79 S. E. 977, 103 X. C. 464. 2. Smith V. Smith, 4 Baxt. 293; Harrison v. Rowan, 3 Wash. C. C. 586; Swinb. Wills, pt. 2, § 3; 1 Hall P. C. 30; Townshend v. Townshend, 7 Gill, 10. "No position can be bet- ter established than that, if a testa- tor, a .short time before m.iking his will, be proved to have been of un- Bound mind, it throws the burden of proof upon those who come to sup- port the will to sliow the restoration of his sanity. This must be under- stood to mean a general and fixed in- sanity." Halley v. W'ebster, 21 Me. 461, by Whitman, C. J. And see Hoopes's Estate, 174 Penn. St. 373, 34 A. 603; Bradford v. Blossom, 207 Mo. 177, 105 S. W. 289; Morere's Succession, 38 So. 435, 111 La. 506; Gesell v. Baugher, 60 A. 481, 100 Md. 677. 3. Supra, §§ 81, 82; Little v. Lit- tle, 13 Gray, 264. So as to an inqui- sition of lunacy. Bidder v. Miller, 86 N. Y. 507; Stevens v. Stevens, 127 Ind. 560, 26 N. E. 1078. 4. Supra, §§ 81, 82; Rice v. Rice, 50 Mich. 448, 15 N. W. 545. 5. Curtwiight v. Cartwright, 1 Phillim. 100; Boyd v. Eby, 8 Watts, 66; Jackson v. Van Dusen, 5 Johns. 144; Goble V. Grant, 2 Green Oh. 029; supra, §§ 72, 88, 107, 212 CHAP. IX.] PKOOF OF CAPACITY AND INCAPACITY. § 188 If, however, the insanity shown were something of a temporary nature, such as might be produced by fever, by a passing delirium, by some accident, and not a fixed and habitual derangement, no strong p'resumption, and in many oasics no piresiunption at all, would operate to disturb that prima facie case which tlie due ex- ecution of a rational will, by one apparently rational, makes out.® The earlier the date of the alleged insanity, as shown, against the will, the less conclusive must, of course, be ithe force of such tes- timony; ^ and since incapacity just when the vnll was made is the true issue, proof that the testator was insane years after its execu- tion is of very trivial consequence.^ There is, therefore, no such unqualified presumption of law as " once insane, -always insane " ; but the peculiar circumstances connected with the malady of the individual testator must be con- sidered in deciding its effect upon the burden of proof, o>v deter- mining how far the same condition of mind may be inferred at any later or earlier period.^ § 188. The Same Subject: Proof of General Insanity. As we have already seen, the character of the will itself, whether natural or unnatural, reasonable or absurd, just or unjust, bears strongly upon the issue of general insanity, and the more so when its provisions show a radical and unaccountable change from the testator's normal purpose. Yet we have also seen that one may capriciously change his purpose, and that a will which disposes harshly, foolishly, or unequally, is not to be set aside for that cause if the testator were really sane when he made it.-^ We have seen 6. Lord Eldon in Holyland, Ex 8. Taylor v. Cresswell, 45 Md. 422. parte, 11 Ves. 11; Hix v. Whittemore, 9. See Dewey, J., in Hix v. Whit- 4 Met. 545; Staples v. Wellington, temore, 4 Met. 545; Taylor v. Peg- 58 Me. 453; Halley v. Webster, 21 ram, 151 111. 106, 37 N. E. 837. Me. 461; McMasters v. Blair, 29 1. Supra, §§ 77, 112; Coleman v. Penn. St. 298; Townshend v. Towns- Robertson, 17 Ala. 84; Stubbs v. bend, 7 Gill, 10. And see supra, §§ Houston, 33 Ala. 555; Goble v. Grant, 122, 127. 2 Green Ch. 629; Ross v. Christmas, 7. Hix V. Whittemore, and Halley i Ired. 209; Graham v. Deut«rman, V. Webster, supra. 69 N. E. 237, 206 111. 378; Perkins v 213 § 1S8 ■ LAW OF WILLS. [pART II. that, in connection with the contents and character of the will it- self, the manner in which it was written and executed may aid in establishing sanity or insanity. Thus, where -the will was writ- ten out entirely by the testator's own hand, this fact, bears greatly in its favor.^ Yet wills clearly expressed in the testator's own handwriting have been seit aside on proof of his insanity.^ We have seen that a testator may be irritable in temper, morose, pro- fane, miserly, squalid, disihonest, devoid of affection, proud, sel- fish, and yet, being sane, his will cannot be impeached :* at the same time tbat all such manifestations, at and about the time of the testamentary act, may, especially if indicating a sudden perver- sion of the mind from its natural chiannel, be shown in connection with other facts, as tending to prove insanity.^ We have seen that mere eccentricity is not insanity ; and yet eccentric freaks may be a symptom of insanity.^ We have seen that one may make a valid will who does not manage his business affairs ; and yet incapacity to manage one's affairs is a circumstance for consideration.^ We have seen, in fine, that the intellect may flare wildly or bum low iD the socket; and yet that a testator has sufiicient mental capacity to make a will when he uiulei'stands fully and in detail, without prompting, what he is doing and how he is to do it, what is his property and how lie wishes to dispose of that property among those naturally entitled to his bounty ; or in other words, so long as Perkins, 90 N. W. 55, 116 Iowa, 253; 3. See Symes v. Green, 1 Sw. & Tr. Baker v. Lewis, 4 Rawle, 356; Mun- 401; 1 Phillim. 90. day V. Taylor, 7 Bush. 491; Whit- 4. Supra, §§ 77, 158; Lewis, Re, 33 man v. Morey, 63 N. H. 448, 138 Mo. N. J. Eq. 219; Coleman v. Robertson, 197. 17 Ala. 84; Nicholas v. Kcrshner, 20 One may diapose according to a W. Va- 251. rational purpose of his own, al- 5. Conely v. McDonald, 40 Mich. thouj,'h such purpose may appear 150. irrational to others. 62 S. W. 890, 6. Supra, § 152. See Bristod v. 35 N. W. 159. Weeks, 5 Redf. (N. Y.) 529; Jacob's 2. Supra, § 113; Cartwright v. Succession, 34 So. 59, 109 La. Ann. C'artwright, 1 Pliillim. 90; Temple v. 1012. Temple, 1 Hen. & M. 476; Ovcrtun v. 7. Supra, § 70; Errickson v. Fields, Overton, 18 B. Mon. 61. 30 N. J. Eq. 634. 214 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 188 lie has suificieut intelligence to understand and appreciate the tes- tamentary act in its different 'boaxin^s, and no longer." 8. Supra, §§ 70, 71; Banks v. Good- fellow, L. R. 5 Q. B. 567; Delafield V. Parish, 25 N. Y. 10; 42 Barb. 274. The circumstances in the Parish Will Case (42 Barb. 274; affirmed, 25 N. Y. 10) are worth observing; that case being a remarkable one, as putting a practical limit to testa- mentary capacity which Americ\n courts have not since been disposed to transgress, though some had trans- gressed it before. The litigation came prominently before the public in 1857-1862; the Supreme Court of New York, on appeal from the Sur- rogate, rejecting three alleged codicils to the will of Mr. Parish, and the court of appeals affirming substan- tially the decision. Henry Parish, a man of good mental and moral per- ceptions, refined and gentle suscepti- bilities, made his will in 1842. In 1849 (having, it appears, some here- ditary tendency to mental disorder) he was suddenly struck with a severe apoplexy, which was followed by per- manent paralysis or hemiplegia on , the right side, and by severe epileptic convulsions which continued until his death in 1856. After the attack, he ceased to be the mild, intelligent, and unruffled man he was before, fre- quently exhibited ungentlemanly and unbecoming conduct, and underwent a decided mental change. From 1849 to the date of his death he had vari- ous painful diseases, such as cholera morbus, inflammation of the lungs, and the formation of an abscess un- der the jaw which threatened to suf- focate him. He would suffer spasms or convulsions at regular intervals, extending from one or two weeks to six months or a year. During this whole period of intermittent agony, the suflferer could neither write nor speak, nor use language in any shape or form for the expression of his mind. He could see, he could use his left arm, hand, and fingers, vigor- ously, but he could not or would not write. He did not use the dictionary for pointing to words, and when block-letters were placed before him, he pushed them away; symptoms pointing to a diseased state of mind. Expressing himself by signs, gestures, and motions, those signs, gestures, and motions were often contradictory, uncertain, frequently misunderstood, often not comprehenled at all. His nurses would read the newspaper to him, but it did not appear that he comprehended what was read, or ex- hibited any intelligent interest in the reading. After the first attack he was never intrusted with money or the management of his own affairs, and was washed, dressed, and attend- ed like a helpless child. He showed strange freaks and caprices, and had to be guarded from heedless exposure to danger. Not making it easily understood what he wished, any will he might make, even supposing him rational in making it, would necessarily depend iupon the interpreter and the integ- rity of the interpretation. But as to the three codicils offered for probate, it seems that the counsel employed by the family to .prepare them, read them to Mr. Parish in the presence of the subscribing witnesses, put to 215 189 LAW OF WILLS. [part ir. § 189. The Same Subject: Proof of Lucid Interval or Restora- tion. Thie presumption being itbat general insanity once shown to ex- ist still continues, unless of a temporary sort, like the delirium of dininkenness or a fever, the burden of proof to establish a lucid interval or memtal restoTation rests upon the party who asserts it.* One who offers the will of a testator shown thus incapable should prove, therefore, that the incapacity was, at least, so far removed when tlie instrument was execut-ed that his reason shone out once more in the transaction.^ The nature and character of the will and him the requisite formal questions, and received from him by sound and gesture, as usual, what were sup- posed to be affirmative replies. The counsel then guided the hand of Mr. Parish while he made his mark. This, at least, was the case when the first and second codicils were executed; whether or not lie recived assistance in making his mark at the execution of the third was not clear. These codicils were drawn under the sug- gestion of Mr. Parish's wife, whose share in the estate was immensely increased by them. The Surrogate admitted the first codicil to probate, rejecting the sec- ond and third; but under the decree of the Supreme Court, which was affirmed on final appeal, all the three codicils were rejected. We have already shown that the rule prescribing a test of capacity for making wills is here narrowed mater- ially from that in Stewart v. Lispen- ard, 26 Wend. 255, which had hither- to been the leading precedent for New York, if not most other States, on the subject. In that case what were supposed the last wishes of a testa- trix, low, too low, in point of capac- ity, were respected. Here they were set summarily aside. But the dis- crepancy upon the decided facts is not so great after all; for in the Parish Will Case, codicils unjust in terms and likely to have been unfairly pro- cured were swept aside in favor of a disposition unquestionably rational; while in Stewart v. Lispenard, the disposition was just and reasonable, and accorded with the earlier inten- tions of the deceased; a further proof, in connection with the instances else- where cited, that in the mind of court, jury, and the general public, the dis- position to uphold officious and con- demn inofficious wills is too strong for logical consistency to restrain it. 9. Cartwright v. Cartwright, 1 Phillim. 100; White v. Driver, 1 Phil- lim. 88; supra, §§ 110, 122; 1 Wms. Exr«. 22; Gombault v. Public Admr., 4 Bradf. (N. Y.) 226; Saxon v. Whit- aker, 30 Ala. 237; Halley v. Web- ster, 21 Me. 461; Lucas v. Parsons, 27 Geo. 593 ; Harden v. Hays, 9 Penn. St. 151; Goble v. Grant, 2 Green Ch. 629; Jackson v. Van Dusen, 5 Johns. 144; Harden v. Hays, 9 Penn. St- 151; 44 N. J. Eq. 154, 15 A. 391. 1. lb. 216 C'liAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 190 the circum stances atjtiending its execution may aid such an infor- ence; but while no precise measure of proof is set by the law, there must be sufficient io overcome that unfavorable impression which, is naturally produced when habitual insanity has been shown to have once exiated." Lucid intervals involve too slight and waver- ing a 'departure from confinned derangement of the intellect to serve as a yeiry posiitive basis for testamentary capacity to rest upon; while proof tbat the testator had actually recovered his full mental health afteir the period of incapacity and before the will was made, well overcomes any presumpition of insanity f and yet it should 'be still observed that those once confirmed in this malady, however resitored they may appear, are liable to a relapse when some new calamity comes with crushing weight or the faculties. decay in the torpor of declining years. § 190. The Same Subject : Proof of Monomania or Insane De- lusion. Where only partial insanity, or rather monomania, is shown at the trial insitead of general insanity, the burden of overcoming this proof and of establishing testamentary capacity is certainly not so great, if we may trust the prepondeiranoe of later English and American authority. For here, as we have shown, the will ougbt to stand unless the delusion, ithe monomania, colored, so to speak, the testamentary transaction, and made its particular disposition in effect the product of a deranged mind.* It is true tbat the mental disorder in questtion miay have extended beyond its outward and visible symptom ; and that the insane delusion once shown to exist, a prejudice is created against the will. But the most decisive circumstance against the will, in such a situation, would be that it was unnatural, inofficious, insane in character, tinctured by the delusion to the injury of survivors. For if, on tlhe other hand, the 2. Brogden v. Brown, 2 Add. 445; 212; Duffield v. Morris, 2 Harring. supra, §§ 110, 111; Steed v. Galley, 1 375. Keen, 620; Gombault v. Public 3. See Snow v. Benton, 28 111. 306„. Admr., 4 Bradf. 226; Snow v. Benton, 4. Supra, § 159. 28 111. 306; Wright v. Lewis, 5 Rich. 217 § 192 LAW OF WILLS. [i'ART II. jurj or court trying the issue of capacity should feel satisfied that the delusion had not affected the testator's general faculties nor pen'ert€>d ithe particular disposition by tes'tament, there is no rea- son why the will should not be upheld.^ The burden of proving capacity requires those who propound the will, at all events, to overcome whateveir tends to prove ihat the delusion and the testa- menitary disposition were connected.® § 191. Proof of Drunkenness, etc. The finding of an inquesit that a person is an habitual drunkard can be, at the utmost, no more than prima facie evidence of in- capacity.^ And proof of intemperate habits and occasional fits of wildness, though indicating an impaired mind, is not sufficient to establish a total and penuanent want of tesitamentary powefr.* In- deed, proof of instances of longer oir shorter incapacity from drunk- enness should not destroy the usual presumption of general capacity from the proper execution, but the party alleging inca- pacity should bring his proof to bear more directly upon the time cf execution.' § 192. Personal History of Testator in an issue of Insanity, Au- topsy, etc. The whole personal history of the testator, mental and physical, 5. See observations of Cockburn. A. 620, 93 Md. 442, as to proof of the C. J., in Banks v. Goodfellow, L. R. testator's religious vacillation. .5 Q. B. 549; supra, §s 157, 160; 7. Leckey v. Cunningham, 56 Penn. Fraser v. Jennison. 43 Mich. 206. See St. 370; Lewis v. Jones (N. Y.), 50 also Mullins V. Cottrell, 41 Miss. 291; Barb. 645. Wetter v. Habersham, 60 Ga. 193; 8. Julke v. Adam, 1 Redf. 454; Hall V. Hall, 38 Ala. 131; Jenckes v. Duffiold v. Morris, 2 Harring. 375; Smithfield 2 R. I. 255. Peck v. Gary, 27 N. Y. 9, 84 Am. 6. Smee v. Smee, 5. P. D. 84. Dec. 220; Svvygart v. Willard, 76 N. In ca.ses of alleged spiritualism, E. 755, 166 Ind. 25. etc., evidence of the truth or falsity 9. Black v. Ellis, 3 Hill (S. C. ), of the faith is inadmissible. O'Dell 68, 184 Penn. St. 41, 39 A. 16; An- v. GofT, 149 Mich. 152, 112 N. W. 736, dress v. Weller, 3 N. J. Eq. 604. And 10 L. 11. A. IN. S.) 989, 119 Am. St. see supra. §§ 125-128; Elkinton v. Rep. 662; §§ 166-168 supra. See 49 Brick, 44 N. J. Eq. 154, 15 A. 391. 218 <-'IlAP. IX.] PKOOF OF CAPACITY AND INCAPACITY. § 193 may be freely ranged over upon the issue of liis insanity.^ And as insanity is often heredit;ary and the taint transmittod through one's ancestors, it is not considered iraperintent to inquire into the sanity of his immediate progenitors oir otheirs oif the family not remote.^ The value of this latter evidence appears to depend upon its immediate connection with the testator's O'wn condition, as shown 'by medical exporttis ; ^ and where the malady cannot be traced directly in the blood, but the ancestor was collateral or remote, or his mental disorder by no means coincident with that of the tcs- tatoir, such proof can be of very slight consequence. While the diseased condition of the tesitiator's body as shown by an autopsy may corroborate the proof of mental derangement deduced from manifestations during life, this should no-t be relied upon for furnishing the sole or even the primary evidence of the ■decedenit's meoatal condition.* § 193. Declarations, Letters, etc., of Testator, how far Admis- sible as to Mental Capacity. Upon the question of mental capacity to make a will, declara- tions of the testator made at or about the time of its execution, and his conduct, are admissable as part of the res gestae.^ But his 1. Ross V. McQuiston, 45 Iowa, 145 Sliailer v. Bumstead, 99 Mass. 119 Wright V. Tatham, 5 CI. & F. 670 Dale's Appeal, 57 Conn. 127; Bevei V. Spangler, 93 Iowa, 576, 61 N. W 96 Md. 45; Pringle v. Burroughs, 78 N. E. 150, 185 N. Y. 375. 4. LaBau v. Vanderbilt, 3 ReJf. (N. Y.) 384. 5. Marx v. McGlynn, 4 Redf. 455; 1072. If one side takes a wide range, May v. Bradlee, 127 Mass. 414; Bny- at the trial, still more readily may Ian v. Meeker, 28 N. J. L. 274; Col- the other. 176 111. 448. But see 51 A- vin v. Warford, 20 Md. 357; McTag- 398, 94 Md. 403. gart v. Thompson, 14 Penn. St. 149; 2. Baxter v. Abbott, 7 Gray, 71; Gibson v. Gibson, 30 Mo. 227, 64 Am. Snow V. Benton, 28 111. 306. Dec. 178 ; Dickie v. Carter, 42 111. 376 ; 3. 1 Jarm. 38, Am. Ed ; Eraser v. 47 Conn. 450, Bever v. Spangler, 93 Jennison, 42 Mich. 206. Irrelevant Iowa, 576, 61 N. W. 1072; Heseman evidence is not on such points ad- v. Vogt, 55 N. E. 151, 181 111. 400; niissible. 127 Penn. St. 564, 18 A. Dudderar v. Dudderar, 82 A. 453, 116 432; Berry v. Trust Co., 53 A. 7?0. Md. 605. 219 § 193 LAW OF WILLS. [pAET II. declarations made long after tiie will was executed, as, for instance,, two years, are too remote in time to be admissible on this point ; ^ and so are bis declarations made long before the execution.^ To letters or other writings of the decedent a like principle applies. Such testimony cannot be strained to a remote purpose ; ^ and yet clear, sensible, and perfectly coherent letters written by the tes- tator shortly before and after making the will should bear strongly in favor of his general capacity, if such capacity b© at issue.^ And so may his business papers, at ot about the time of executing the will, be produced in evidence.^ Not only as part of the transaction are the declarations, oral or written, of the alleged testator, thus admissible upon an issue of devisavit vel non (*' will or no will "), but they may be received when the condition of he testator's mind is the point of contention, or it becomes material to show the state of his affections. Thus^ the feelings of a testator towards a relative or relatives whom he practically disinherits can be shouTi in proof.^ In all such cases^ the evidence is properly admitted simply as external manifesta- tions of a testator's mental condition and disposition, and not as evidence of the truth or falsity of the facts he stAtes.^ For as with deeds, so with wills, the parties making them cannot impeach them by their own parol decLarationiSi, prior or subsequent to the execu- tion ; and evidence thereof is not admissible upon the issue of val- 6. La Bau v. Vanderbilt, 3 Redf. can be shown. Wright v. Tatham, 5 384; Fraser v. Jennison, 42 Mich. 206. CI. & F. 670, 7 A. & E. 313. See Mc- 7. Cf. Langford's Estate, 108 Cal. Ninoh v. Charles, 2 Rich. 229. 608, 41 P. 701; Bower v. Bower, 142 1. Messner v. Elliott, 184 Penn. Ind. 194, 41 N. E. 523. St. 41, 39 A. 46. 8. Fraser v. Jennison, supra. 2. Wliitman v. Morey, 63 N. H. 9. Blakely's Will, 48 Wis. 294. 448; Haines v. Hayden, 95 Mich. 332. Wheelock's Will, 56 A. 1013, 76 Vt. The fact that the testator held 235; Baker v. Baker, 67 N. E. 410, certain ofiices after making a will 202 111. 595. Letters written to a is not admissible to show his com- testator, and traced to his possession, peteney, without further proof of how afford of themselves no proof of his ca- he discharged the duties. Ray v. Ray, pacity unless knowledge or act of the 98 N. C. 566, 4 S. E. 596. testator with regard to those letters 220 •CHAP. IX.] I'KOOF OF CAPACITY AND INCAPACITY. § 194 idity.^ By making a new instrument or revoking the old one, the power to invalidate is properly exercised if mental capacity re- mains to a testator. It is obvious that if one cannot lawfully revoke a former will because of his present insanity, his insane declaration as to fo'rmer mental condition should be utterly wortliless as testimony of the fact to impeach it. But mental disturbance may be detected by •declarations as surely as by conduct; and bence the declarations of persons charged with insanity aire admissible, in a chain of logical connection, to elucidate the mental condition existing when the will in question wns executed. But if they have no tendency to show contemporaneous capacity or incapacity, they are inad- missible ; and hence the subsequent declarations of a testator, made while of sound mind, are held incompetent to sbow his mental condition lat the date of execution.^ § 194. Miscellaneous Points as to Evidence in Such Cases. Rumors among a tesitator's neighbors', or general reputation as to whether he was of unsound mind or not, are inadmissible proof in the present connection.® And generally on an issue of devisavit 3. This seems the general doctrine, N W. 468, 123 Iowa 24; 136 N. Y. S. although the cases are somewhat in 1086; Chevallier's Estate, 113 P. 130, conflict upon this point. See Gibson 159 Oal. 161; Wilkinson v. Service, V. Gibson, 20 Mo. 227, and author- 94 N. E. 50, 249 111. 146; Gicks v. ities cited; Jackson v. Kniflfen, 2 Stumpf, 97 N. E. 865, 204 N. Y. 413; Johns. 31; Provis. v. Reed, 5 Bing. Dudderar v. Dudderar, 82 A. 453, 116 435 ; Moritz V. Brough, 16 S. & R. 405 ; Md. 605 (not to show, as a fact, Canada's Appeal, 47 Conn. 450; 84 whether or how he had made his Mo. 587; Roche v. Nason, 185 N. Y. will). 128, 77 N. E. 1007 (not favored) ; 95 4. Gibson v. Gibson, sujrra; Dickie S. W. 189, 117 Tenn. 73; Credille v. Carter, 42 111. 376. V. Credille, 51 S. E. 628, 123 Ga. 673, 5. Crocker v. Chase, 68 A. 756, 57 107 Am. St. B.esp. 157; Swrgart v. Vt. 413. Willard, 76 N. E. 755, 166 Ind. 25, See next chapter § 243, as to aeciar- 60 N. E. 223, 167 N. Y. 28; Crowson ations of a testator on the point of V. Crowson, 72 S. W. 1055, 172 Mo. fraud and undue influence. 691; Roberts v. Bidwell, 98 N. W. 6. Wright v. Tatham, 5 CI. & F. 1000, 136 Mich. 191; Knox's Will, 98 670, 735; Townsend v. Pepperell, 99 221 § 194 LAW OF WILLS. [pAIlT II. vel non irrelevant testimony sliould be excluded.^ Long lapse of time, moreover, after the testatoir's decease tends necessarily to discredit any testimony wliich bears agains-t the usual presump- tions for or against the will.* As evidence to invalidate or corroborate a will, the age of the testator and his bodily state, his condition and circumstances, his known affections and preferences, and the correspondence or con- tradiction of the will to these affections, tlie manner of making the will or codicil, the persons around him at the time, their cap^acity and credibility, — all such matters under reasonable restraint to the point at issue may properly go to the jury, or to the judge who tries the case.* Business transactions performed by the testator about tiie time of making his will, have been admitted in evidence^ as indicative of his mental capacity.^ Evidence is relevant and admissible which tends to show that the will presented is in conflict with the fixed purposes previously expressed by the tastator.^ On the other hand, it is strong evidence of capacity to make the will, that its provisions are suitable, and made in accordance with determinations previously expressed by the testator while clearly sane.^ Mass. 40; Brinkman v. Rueggesick, Penn. St. 41, 39 A. 46. Evidence of 71 Mo. 553; Roche v. Nason, 93 N. non-experts as to business capacity Y. S. 565 (family hearsay) ; Vance v. excluded. Trubey v. Richardson, 79 Ubson, 66 Tex. 476, 1 S. W. 179. As N. E. 592, 224 111. 136. See 136 N. to conversations in the testator's Y. S. 1109. presence concerning his mental con- 2. Seale v. Chambliss, 35 Ala. 19. dition, see 74 Iowa 352, 37 N. W. 773 ; 3. Couch v. Couch. 7 Ala. 519, 42 Knox's Will, 98 N. W. 468, 123 Iowa Am. Deo. 602. And see 152 Mass. 24. 470. 25 N. E. 837; Hammond v. Dike, 7. Spence v. Spence, 4 Watts. 165; 42 Minn. 273, 44 N. W. 61, 18 Am. Ware v. Ware, 8 Greenl. 42; 127 St. Rep. 502; 76 Tex. 574, 13 S. W. Penn. St. 564. 543; Oxford v. Oxford, 71 S. E. 8S3, 8. Chase v. Winans, 59 Md. 475. 136 Ga. 589 (pecuniary condition of 9. Sutton V. Sutton, 5 H;ur. 459. claimants to bounty). 1. Kerr v. Lunsford, 31 W. Va. The fact that a will confa'ns a be- 659; 64 N. H. 573; 98 N. C. 566, 45 quest of a sum largely in excess of S. E. 526. And as to written busi- funds applicable to its payment is ncsH agreements of the party, see 184 not conclusive proof of testamentary 222 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 196 FirifaUy, as the scope of our observations Las already cleiarly in- dicated, the will itself, 'the insibrument actually presented for pro- bate, is evidence upon any issue of testamentary capacity ; * and this the reader sihould bear well in mind. § 195. The Same Subject: Declarations of those interested un- der the Will. Declarations made before its execution, by parties who after- wards become legatees under a will, are not admissible against the validity of the will.^ But upon the question whether declarations, admissions, or conversations, made by a devisee or legatee in the natuire of an admission against his own interest or a oonfeesion are competent testimony, the decisions are not uniform ; some States permitting such declarations to be shown ; ® while in other States the better opinion is that such declarations are inadmissible unless the party making them is the sole beneficiary under the will, for the reason that other devisees or legatees may be injuriously affected by the admission of such testimony.'' For the general rule is that one party whose interest is several ought not to be prejudiced by the unauthorized declarations of anotlier. If the declaration made under no solemnity of an oaith be matter of opinion rather than of fact, there is all the more reason for excluding it.^ § 196. Character of the Witnesses who testify as to Capacity. As Judge Redfield has well observed, testimony to establish lucid intervals, general insanity, or monomania, ought to possess two incapacity. Hall v. Perry, 87 Me. St. 356, and cases cited; Blakey v. 569, 33 A. 160. Blakey, 33 Ala. 611; Ames' Will, Re, 4. Sitpra, § 188. 51 Iowa, 590, 2 N. W. 408; 99 Iowa 5. Ames, Re, 51 Iowa, 596, 2 N. W. 120, 68 N. W. 591; Benton v. Scott, 408. 3 Rand. 309; Clark v. Morrison, 25 6. Ware v. Ware, 8 Greenl. 42; At- Penn. St. 453; Forney v. Fennell, 4 kins V. Sanger, 1 Pick. 192. Cf. W. Va. 729. See also How v. Pull- Phelps V. Hartwell, 1 Mass. 71. And man, 72 N. Y. 269. see Beall v. Cunningham, 1 B. Mon. 8. See Atkins v. Sanger, 1 Pick> 399; Brown v. Moore, 6 Yerg. 272. 192; Dale's Appeal, 57 Conn. 127, 17 7. Thompson v, Thompson, 13 Ohio A. 757, and cases cited. 223 § 197 LAW OF WILLS. [pAET II. characteristics, in addition to truthfulness, that great essential of all testimony: (1) It should come from persons learned and exper- ienced in the whole snhject. (2) It should come as far as possible from pereions who have had ample oppontunitj to observe the con- duct, habits, and mental peculiarities of (the individual whose capacity is at issue, and the development of his malady from its earliest stage ; and whose knowledge, if possible, reaches back to a period anterior to the malady.^ But pcTsons whose testimony is founded upon so ample and skilful experience sure rarely to be found ; or else, being of the family, they have some pecuniary in- terest either in breaking or upholding the will. The family doctor, if ^there be one, unbiased and of sound judgment, who made the patient's case his careful study in advance of any controversy, usually combines these requisites in the highest degree. But such an investigation in court calls commonly fotr a full detail of the facts bearing upon the testator's sanity from unprofessional wit- nesses, and ithe discussion and estimation of those facts before the jury, aided by the opinions of a class of men prof ess ionally CO'U- versant with insane symptoms, and qualified as experts to impart instruction on such an issue. ^ § 197. Whether Unprofessional Persons can give their Opinions as to Insanity. It is a general principle that witnesses may state facts fully so far as their observation extended, but not give opinions outside the range of their peculiar training and experience. Yet the habit of generalizing upon facts is universal ; and within a certain com- pass every intelligent person's opinion will be found valuable. An illiterate man's judgment of weather phenomena, of crops, of forest animals and .their trails, may far surpass a scholar's; but only a scholar can discuss questions pertaining to universal language and history. Learned or unlearned, we are all keen obscuwers of char- acter where we are familiar. As for the issues of testamentary capacity, it requires men of legal training to estimate their legal 9. 1 R.-.lf. Wills, 137. 1. lb. 224 CPIAP, IX.] PROOF OF CAPACITY AND INCAPACITY. § 198 bearing; and men of medioal training in a peculiar direction to deteot the finer shades of mental disorder; yet mos't persions of sense and good feeling deem tliemselves oap-able of appreciating whether those of their own family and acquaintance are out of their heads or not. Hence the doubt and uncertainty in our law as to whether ordinary witnesses can give their opinions upon the point of a testator's insanity, even admitting ^ that on subjects where training and skill are needful they cannot. That legal doubt and uncertainty let us briefly investigate. § 198. Subscribing Witnesses, though not Experts, may testify as to Apparent Sanity. In the first place, it is universally conceded thiai the Siubscribing witnesses .to a will, even thoiu^h not experts noT familiar with the testator's habits and character, may testify as to his .apparent sanity or insanity at the date of their subscription.^ And by admitting unreservedly the opinions of such persons on this point, the law at once refuses to affirm that none but experts are competent to pro- nounce upon the broad fact of one's mental soundness, or unsound- ness. The reason why subscribing witnesses are thus allowed to express an opinion of the testator^s sanity is, to use the language of a Massaohuisetts judge, " because that is one of the facts necessary to the validity of the will, which the law places them around the testator ito attest and testify to." * 2. Irving v. Bruen, 79 N. E. 1107, 12 Mich. 459; Brooke v. Townshend, 186 N. Y. 605. 7 Gill. 10; Turner v. Cheesman, 3. Brooks v. Barrett, 7 Pick, 94; 15 N. J. Eq. 243; Kaufman v. Caugh- Hastings v. Rider, 99 Mass. 624; May man, 49 S. C. 159, 27 S. E. 16; Fiee- V. Bradlee, 127 Mass. 414; CiUey v. man v. Freeman, 71 W. Va. 503, 76 Cilley, 34 Me. 162; Robinson v. S. E. 657. Adams, 62 Me. 369, 16 Am. Rep. 473; 4. Gray, J. (afterwards Chief Dewitt V. Barley, 9 N". Y. 371; Clapp Justice of Massachusetts, and Asso- V. Fullerton, 34 N. Y. 190; Logan v. ciate Justice of the Supreme Court McGinnis, 12 Penn. St. 27; DiifTield of the United States), in Hastings V. Morris, 2 Harring. 375; Appleby v. Rider, 99 Mass. 624. Tbe reason V. Brock, 76 Mo. 314; Gibson v. Gib- is also expressed in a Missouri case: son, 9 Yerg. 329 ; Beaubien v. Cicotte, " Attesting witnesses have always 15 225 § 19S LAW OF WILLS. [pART !!► Yet, as we have already seen, ihe expression of such an opinion by subscribing witnesses is by no means indispensable in estab- lishing a will ; for, even though any or all the witnesses should be ■dead or beyond the reach of process, or wiholly forgetful of the circumstances attending the attestation, or otherwise incapable of aiding a jusit conclusion in coiu't on the question of sound or un- sound mind, this issue might be determined and the will admitted or probate refused without them.^ And certainly the testimony of subscribing witnesses on this point is by no means conclusive, but may be rebutted by other evidence to (the contrary.® For the weight and force to be given to the opinion of any subscribing witness regarding thHti luting words and cJauHfJS, or porhapH expung- ing." § 218. The Same Subject. in 'iilii.H fountry, the laU-r rulo of thr; now pro}>ato tribunals in Ji^ngland appears to prevail rat.h(?r tiian the, earlier and ]('y.>«cr ono of the old oc5clf«ia«tical e/>urt>^. For the.-/; prot>at/; tribunals are .more nearly like our.s, wliiU; the iinidun1erparL in alrnoHt every Stat/;, where kK*.al F'giHlation lia.s long irnifK/Hod pe-euliar forrnaliitieM of <;xeention with att/wtation, in will.H hot.h of reiil iuid fxrKoniil [»ro[)frt,y. In an Arneriean f»u.rt of probate, parol evidenee may 'doubth-H.s (;.Kt,;ihli.s[i that the alle,ged itostator, at the time of .'•igning thr; in.strurnent, did not undi'frfttand thart; it wia.s a will, nor int/'nd th<- ideniic,;il writhing t/> o|K;rate as KUfh.^ Prolinhly, too, lh<- l.ru*' ••'■(\\\cnc^- itiul '•onnefj ion of will and eodieils might \xt vf;rha.lly shown where; am[>lguity exi.stod ; or, jx^r- }jaj>s, that shwjts inadvertxiiitly omittxid or taeked on did or did not really belong to that which, pro[X;r]y fast/^nf^l (together, constituted \}u) whole instrument lifjon vvhieh signal nt(; ;tnd attestation were meant tx> opr^rate. Nnneupative wills, in th<; rare irmtances whten lhey are still permit;t<-d, follow thei.r own mode of proof. But the liniit of concciiiig aihgeii mi.st,ak(;s or explaining ;in ainhiguit.y \)y adding or eliHnging, 8eem« hero to Ik? approached.** And whora oiKj, fully capable and free from nn. tion. (189.0) P. 341. Put M-.i- 8 219; PiiHlinell'H OoodH, 1.3 7. Hwctt v. Poarrlman, 1 Mhh.m. 2.5S; P. D. 7. An omisaion in tlif; will of Condi v, Eastliam, 27 W. Va. 79R; (,!«■ of tli(; Cliristian namfH of th«! .''.r, .Am. K<-p. :i4f). 72 N. E. 400 ; g 2ir.a jvcciitor may ]>(- Hiipplied in thf f^rant Hupra. of prolmtc under an alias, wliere 8. Soft c. y. Lcin.nin v. li'm-all, 1 Add. 389. 254 CHAP. X.] EEROE, FRAUD, AST) UXDUE INFLUENCE. § 218 made kno\vn to him in detail, Jie may well be presumed to have adopted tliera. For any one is liable to change what has been drafted for him before he executes; and to allow an instrument to be changed in terms from that which one has executed with all the solemnities by which the law surrounds it, upon loose and untrust- worthy oral evidence, is to involve the transaction in lasting un- certainty.' Upon such a basis of argument it is held that an instrument cannot be oposed for probate by evidenee that the testator did not understand the legal effect of certain provisions, or truly appreciate the proportions in which his property would be thereby distrib- uted.^ It follows, moreover, that an omission of the scrivener, in preparing a will which the statute requires to be executed with due formalities under the statute, cannot be supplied by parol proof.^ Even where the will as drawn states the name of a legatee, but through some mistake in copying it, and not becau.se of the testa- tor's neglect to state the sum intended, the amount of the legacy is left blank, this important omission, it is held, cannot be supplied in the probate.^ Although through some important omission of this kind, the whole scope and bearing of the testamentary provisions, as actually intended, may be materially changed, the mistake, it is held can- not invalidate the will on that account, and render it inoperative; * 9. Giflord v. Dyer, 2 R. I. 99, 57 3. Comstock v. Hadlyme, 8 Conn. Am. Dec. 708; Comstock v. Hndlyme, 254, 20 Am. Dec. 100. 8 Conn. 254, 20 Am. Dec. 100; Id- 4. Comstock v. Hadlyme, 8 Conn, dings V. Iddings, 7 S. & R. Ill, 10 254, 20 Am. Dec. 100; Salmon v. Am. Dec. 450; Boell v. Schwa- tz, 4 Stuyvesant, 16 Wend. 321; Hearn v. Bradf. Sur. 12; Andress v. Weller, Ross, 4 Harring. 46; Creely v. Os- 2 Green Ch. 604. trander, 3 Bradf. 107. A will may 1. Barker v. Comins, 110 Mass. 477. be in part good and in part bi'd, The testator here read over the will partly sustained and partly rejected, and had it read to him besides. And Morris v. Stokes, 21 Ga. 552. The see Jones v. Habersham, 63 Ga. 146; validity of a will is not affected by § 215. mistakes in describing the land spe- 2. Andress v. Weller, 2 Green Ch. cifically devised. Campbell v. Camp- 604. bell, 138 111. 612. See Franklin v. 255 § 219 LAW OF WILLS. [PAET II. for there is no such doctrine of law as requires the testator's intent to be indivisible, or defeats the will in toto inasmuch as the tes- tator's intention must fail in part. In general, no mere miscon- ception of fact or law can invalidate a will.^ § 219. The Same Subject: Expunging Something Erroneous, etc. But at the present state of the law, English and American, it would appear that on the ground of mistake, something super- fluous maj be expimged from a will without transgressing the stat- ute which prescribes a formal attestation, although a co-equal right to insert words or reform a sentence be denied. ISTiunerous oases establish that probate of a pant only of a properly attested instru- ment purporting to be a will, may be decreed while the rest is re- jected.^ But for a court of probate to try to find out by extrinsic evidence what sort of a legal provision the testator meant to make, and then, by such alterations as shall carry out his intention in different langu;age and with possibly' different legal effect from what he intended, remodel the will in form to suit the theory, is certainly a dangerous abuse of discretion.^ Once more, where the interpolated words appear by the proof not to have been really made known to the tesltator, or adopted into the instrument with his assent, there is the more reason for striking \them out at the probate.^ And if words may be thus expunged from the probate, Belt, 60 S. E. 146, 130 Ga. 37 (mis- J. P. Wilde (Lord Penzance) lays take caused by a party profiting by down certain principles to be ob- it), served in cases under the present 5. Monroe v. Barclay, 17 Ohio St. English Statute of Wills; Davy's 302, 93 Am. Dec. 620. Goods, 1 S. & T. 262; §§ 217, 218. 6. Fawcett v. Jones, 3 Phillim. 8. In an English case, where the 434; Allen v. McPherson, 1 H. L. C. scrivener inserted by mistake a clause 209. And see Morris v. Stokes, 21 revoking all former wills, etc., the Ga. 5.'>2; Rhodes v. Rhodes, 7 App. testatrix having really intended that Cas. 192; § 248, post. the instrument in question should op- 7. Harter v. Harter, L. R. 3 P. & erate as a mere codicil to a will pre- D. 11. See also Guardhouse v. Black- viously executed, the court expunged burn, L. R. 1 P. & D. 109, wh(!re Sir the clause; the testimony showing 256 CHAP. X.] ERROR,. FRAUD, AND UNDUE INFLUENCE. § 220 when shown to have been introduced without the testator's knowl- edge and assent, so may whole clauses,^ or some signature which was improperly and needlessly added to the attested instrument/ § 220. Equity Jurisdiction to correct Mistakes. Courts of equity have general jurisdiction to correct mistakes in a will, as to their effect, when the mistake is appai'ent on the face of the instnunent or can be made out by a due construotion of its terms.^ The rights of parties are thus passed upon, where there are several persons of the same name, or some misnomer or misdescription appears in the will.^ Independent gifts to strangers may thus be supplied, as well as a series of gifts to children or members of a class.* Blanks, too, are thus supplied by construc- tion, when the testator's intention was apparent; as where, for in- that the instrument had not been read over, and that the testatrix did not know that this clause was intro- duced. Oswald's Goods, L. R. 3 P. & D. 162. And in Morrell v. Morrell, 7 P. D. &8, where it was found that the word " forty " was introduced by mistake before the word " shares " in a bequest without the knowledge or approval of the testator, the court ordered the word struck out. Still later, where in a will the name of one sister was inserted by a mistake of the draftsman for that of the other sister, probate was granted with the repeated name omitted. Boehm's Goods (1891), P. 247. In a very plain case, the English court of probate went so far in 1887 as to grant probate of a will with a word changed. In the draft, which was read over to the testator, a be- quest was made to the " Bristol Royal Infirmary." In the engrossed will, which was not read over to him, this bequest was written by mistake to the " British Royal Infirmary." Upon this proof and an affidavit that there was no such institution as this last named, the court ordered probate with the word " Bristol " substituted for " British." Bushnell's Goods, 13 P. D. 7. See also Cooper's Goods (1899), P. 193; (1895) P. 341, where the Christian name of the x- ecutor was supplied under an alias. 9. See opinion in Morrell v. Mor- rell, 7 P. D. 68, and authorities cit- ed; Duane's Goods, 2 S. & T. 23; Moore's Estate, (1892) P. 378. 1. In Smith's Goods, 15 P. D. 2 (1889), the signature of the tes- tator's wife, made not with the ob- ject of attesting, but merely to "veri- fy contents," was expunged from the probate. 2. 1 Story Eq. .Jur. §§ 169-183 and cases cited; Mellish v. Mellish, 4 Ves. 45; Wood v. White, 32 Me. 340; Hunt V. White, 27 Tex. G43; Jackson v. Payne, 2 Met. (Ky.) 567. 3. Wood V. White, 32 Me. 340. 4. Mellor v, Daintree, 33 Ch. D. 198. 17 257 § 221 LAW OF WILLS. [I'AKT II, stance, the word " dollars " was carelessly omitted after the words '■' fifteen hundred " in stating a legacy,^ or the name of an omitted legatee can be inferred from the whole will.^ But a court of equity does not in such a case change the probate ; it corrects the mistake or supplies the omission in its effect. The coutrt moulds, so to speak, the language of the testa/tor, so as to carry into effect what he obviously intended. It is not the prov- ince of a court of equity to reform a will which the statute requires to be executed with certain formalities.'' And since the Statute of Frauds, which requires wills to be in writing, parol evidence, or evidence dehors the will is not admissible to vary or control the terms of the will, as expressed, but only to correct mistakes appar- ent on the face of the will, or to explain some latent ambiguity.^ Under our American system in the various States probate courts exercise equity powers to a considerable extent, while the same appellate tribunal serves for bothi probate and equity matters ; and it seems not only highly expedient, but practicable, that all correc- tions which properly involve a change on the face of the will should be in some way spread upon the probate records, which serve, in modem times, for public information and to perpetuate the proof of wills. § 221. Where Fraud or Force vitiates a Will. The general considerations we have stated as to the effect of 5. Snyder v. Warbasse, 3 Stockt. Eq. 110, 59 Am. Dec. 602. Cf. Whit- Ch. 463. lock v. Wardwell, 7 Rich. 453. 6. 31 Ch. D. 460. And see post, If a draftsman, in drawing up a §§ 477, 527, 573; Hubbuck's Estate, will, misinterprets essentially the P. D. (1905) 129. instructions given by the testator, 7. Fitzpatrick v. Fitzpatrick, 36 and his error is shown to have en- Iowa, 674, 14 Am. Rep. 538; Schlott- tered into the execution, the will can- man V. Hoffman, 73 Miss. 188, 55 not stand. Christman v. Roesch, 92 Am. St. Rep. 527, 18 So, 893. A will N. E. 1080, 198 N. Y. 538. cannot be corrected in equity upon 8. Hunt v. White, 24 Tex. 643; the ground of mistake, by striking Jackson v. Payne, 2 Met. 567. And out tlie name of one person and sub- see post. Part VI., c. 3, as to extrin- stituting that of anotlicr inadvertent- sic evidence in aid of the construciioa ly omitted. Yates v. Cole, 1 Jones of wills. 258 CUAP. X.] EKROK^ FKAUD^ AND UNDUE INFLUENCE. § 221 essential error in vitiating a will, apply where fraud or force ap- pears to have operated; only that justice is always more alert to defeat gifts and bequests brought about by the wrongful imposi- tion of others, who cherish sinister designs, than those which im- pute mere error to the giver, or to some third party in the affair who was disinterested. If, then, an instrument executed under the wrong impression that it was one's ov^tq intended will, was i-eally a different document in terms, artfully supplied by another, with some ulterior purpose in view, it cannot stand ; and far more readily ought material words and sentences omitted, changed, or interpolated to affect the probate of the will, or vitiate that in- strument altogether, whenever fraudulent design, and not a scriv- ener's innocent mistake, is shown to have produced it.* "Where suspicion attaches to such a document, no strong presumption arises from its execution ; and, although the testator knew and approved the contents of the paper, it may still be refused probate if fraud purposely practised on the testator in obtaining his execution be established in proof. -^ So, too, a will which has been extorted from a testator by force is voidable as well after death by those whose rights would be im- paired by its provisions as, during his life-time, by the unwilling testator himself. For, as it was long ago observed, if it can be demonstrated that actual force was used to compel the tesitiator to make the will, there can be no doubt that although all formalities have been complied with, and the party was perfectly in his senses, yet such a will can never stand.- Our common law makes no classification of persons incapable for want of liberty or free will, as did the civilians, but lea\^s the couirt to determine, upon all the circumstances of each particular 9. Where the scrivener of a Trust Stirk's Estate, 81 A. 187. 232 Pa. 98. Company, in writing a will, set forth 1. See observations of Lord Pen- as a beneficial gift to the Company zance in Guardhouse v. Blackburn, what the testator meant should be L. R. 1 P. .5: D. 109, 116. stated as a gift in trust for the bene- 2. Eyre, C. B., in Mountain v. fit of others, the Company lost Bennett. 1 Cox, 355. Unless ratified through the fraud of its agent. after all constraint was removed. 259 § 223 LAW OF WILLS. [PAKT II. case, whether or no the testator had the essential liberum anirawn te standi.^ § 222. The Same Subject: Importunity and Undue Influence. Closely connected with the subject of fraud and force is that of importunity or undue influence ; which latter tenn is now com- monly used in the law of wills to denote that more subtle and in- sidious constraint which takes away free agency by means of the ascendency gained by the stronger mind over the weaker. Undue influence involves in some degree one or both the elements of fraud and foTce, though not so distinctly or easily made out, and is usu- ally shown in originating and shaping the will of some old or feeble person, not actually incapable, and yet so nearly disabled by sickness or mental infirmity that the pressure exerted has piXH duced a formal testamentary expression inconsistent with the idea of a free and disposing mind. § 223. Equity Jurisdiction of Fraud and Force; Probate Courts decide Such Questions. Equity relieves against fraud and force, as well as error, by virtue of its general jurisdiction; but in the present instance an adequate and far more suitable remedy is foimd by making the issue, like that of mental capacity, at the probate of the will. In 3. 2 Bl. Com. 497; Swinb. pt. 2, § in constantum virum; as the fear of 8; 1 Wms. Exrs. 44; Jackson v. death, or of bodily hurt, or of im- KniflFen, 2 Johns. 31, 3 Am. Dec. 390. prisonment, or of loss of all or most Where the testator had a fear upon part of one's goods or the like; where- him, as the old books expressed it, it of no certain rule can be delivered, could not be, as it ought, libera vo- but it is left to the discretion of the luntas. Yet, as Swinburne adds, " it judge, who ought not only to con- is not every fear, or a vain fear, that sider the quality of the threateninga, will have the effect of annulling the but also the persons as well threat- will, but a just fear; that is, such as ening as threatened; in the person that indeed without it the testator threatening, his power and disposi- had not made his tesi^ament at all, tion; in the person threatened, the at lea-st not in that manner. A vain sex, age, courage, pusillanimity, and fear is not enough to make a testa- the like." Swinb. pt. 7, § 2, pt. 7. ment void; but it must be such a And see Godolph. pt. 3, c. 25, § 8; 1 fear as the law intends, when it ex- Wms. Exrs. 44. presses it by a fear that may cadere 260 CHAP. X.] ERROR, FRATJD^, AND UNDUE INFLUENCE. § 223 some of the earlier oases the court of chancery distinctly asserted a jurisdiction to relieve against fraud in procuring a will; * in other cases disclaiming such jurisdiction ; ^ and in still others declaring the party to the fraud a trustee for those prejudiced by it.^ But it became finally settled in England long ago, that equity could not set aside a will of either real or personal property, because a court of law was competent to annul for fraud in the one case, and an ecclesiastical court in the latter.'^ Modern legislation in that country makes chancery and probate divisions of the same high court of justice, and removes the former distinctions between wills of realty and personalty as to the effect and desirableness of a pro- bate. Objections, itherefore, on the ground of fraud and force, should now be taken in the court of probate; and the chancery judges decline still more positively to interfere with the exclusive exercise of a probate jurisdiction.^ In this country the probate courts of each State are invested with special powers to deal with testamentary issues of fraud and force, and tO' re^open, if necessary, their ovm decrees, or submit to those of the appellate court, which regulates all matters of chan- cery or probate. The American rule, therefore, has steadily dis- countenanced the idea that equity courts should entertain bills for setting aside a will on the ground of fraud, force, or even mistake. inasmuch as the probate registry preserves the public evidence of 4. 1 Wms. Exrs. 45, note, citing 1 Milton, 3 Ch. D. 27, where a testator Ch. Rep. 123; Prec. Cli. 123; Goss v. had left all to A. B., his wife, and Tracy, 1 P. Wms. 287. appointed her his sole executrix, and 5. 1 Ch. 236; Archer v. Mosse, 2 the will was admitted to probate, the Vern. 8. heir-at-law filed a bill in equity to 6. 1 Ch. 22; 1 Vern. 296; Barnes- have her declared a trustee for him ly V. Powel, 1 Ves. Sen. 287. on the ground that she had fraudu- 7. Wms. Exrs. 45; Allen v. M'Pher- lently concealed from the testator the son, 1 H. L. Cas. 191; Meluish v. fact that she was not his legal wife, Milton, 3 Ch. D. 27. but had a former husband living. It 8. Probate Court Act of 20 and 21 was held that chancery had no juris- Vict. c. 77 (1857) ; Pinney v. Hunt, diction, but the case came under the 6 Ch. D. 98; Barraclougb v. Green- exclusive cognizance of the court of hough, L. R. 2 Q. B. 612; 1 Jarm. probate. Wills, 28. la the case of Meluish v. 2G1 § 223 LAW OF "WILLS. [part IL testamentary succession, and probate courts themselves have all the powers and machinery necessary to give full and adequate relief.^ In most States probate is conclusive and necessary in wills, whether of real or personal property or of both combined. And probate of a will determines all questions of fraud, force, and undue influence in their procurement, as well as of testamentary capacity.^ But, under English and American law, equity still passes upon the probated will as a court of construction, and determines what, in fact, the instrument as thus spread upon the record shall be taken to mean, as to provisions in controversy; though such ques- tions may now be raised in tlie probate court, while the estate is in course of settlement, oir by virtue of equity powers conferred in these later days by express legislation ; and in all such cases, the exercise of a probate and equity supervision by the same appellate court, as modern legislation provides, tends to secure that consist- 9. See Gaines v. Chew, 2 liow. 619 ; Broderick's Will, 21 Wall. 503; Townsend v. Townsend, 4 Coldw. 70; Lyne v. Guardian, 1 Mo. 410; Blue v. Patterson, 1 Dev. & B. Eq. 457. Brad- ley V. Bradley, 83 A. 446, 117 Md. 515; Fowler's Will, 74 S. E. 117, 159 N. C. 203. 1. Clark V. Fisher, 1 Paige, 176. " Whatever may have been the orig- inal ground of this rule," says Mr. Justice Bradley, concerning the re- fusal of an equity tribunal to take jurisdiction to set aside a will or its probate, " the most satisfactory ground for its continued prevalence is, that the constitution of a suc- cession to a deceased person's estate partakes, in some degree, of the na- ture of a proceeding in rem, in which all persons in the world who have any intcrf'st are deemed parties, and are concluded as upon res adjudicata by the decision of the court having jur- i.sdiction. The public interest re- quires that the estates of persons de- ceased, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; and, conse- quently, that there should be some convenient jurisdiction and mode of proceeding by which this devolution may be effected with least chance of injustice and fraud; and that the re- sult attained should be firm and per- petual. The courts invested with this jurisdiction should have ample pow- ers both of process and investigation, and sufTicient opportunity should be given to check and revise proceed- ings tainted with mistake, fraud, or illegality." Broderick's Will, 21 Wall, 503, 509, 22 L. Ed. 599. And see Morrison v. Thoman, 89 S- W. 409, 99 Tex. 409 (husband's fraud upon his wife, where both executed wills to- gether) ; Arnold's Estate, 82 P. 252, 147 Cal. 583. 262 CHAP. X.] ERROR^ FRAUD, AN^D UNDUE INFLUENCE. § 224 emcy and hamaony of interpretation and enforceonent which justice and good sense imperatively demand.^ § 224. General Considerations as to Fraud and Deceit. Fraud vitiates a will ; it is no less detestable in law, say the old writers, than open force. If, therefore, the testator be circum- vented by fraud, the testament is of no mo^re force than tliough he were constrained by fear.^ There is no positive rule to be laid do^\^l as to the quantum ox quality of deceit required to vitiate a will ; but the court or triers should judge by all the circumstances, whether it is probable that tihie deceit took effect upon the testa- ment, considering the character of the latter, and comparing the deceit with the capacity or understanding of the person supposed to be deceived.* Thus, it is held 'that when a legacy is given to a person, under a particular character which he has falsely assumed, and which alone can be supposed the motive of the bounty, the law will not permit him to avail himself of it, and therefore he cannoit demand his legacy.^ But before applying this rule, the court must be satisfied that the assumed character was the motive of the bounty.® Whether such a rule would operate to deprive one of testamentary benefits with whom a testator lived as his wife, on the allegation that she had deceived him, having a former husband still living, must de- pend upon circumstances ; and certainly the character of lawful wife is by no means the sole moving cause, generally speaking, of a man's gift to one who has proved his faithful and devoted com- panion.^ 2. See Gawler v. Standerwick, 2 W. 956, 150 Wis. 401; 74 S. E. 189. Cox, 16; 1 Wins. Exrs. 45; 1 Jarm. 3. Swinb. pt. 7, § 3; 1 Wnia. Exrs. Wills, 27; N. E. Trust Co. v. Eaton, 45. 140 Mass. 532, 54 Am. Rep. 493. 4. Swinb. pt. 7, § 3. See Dc^ Nelf On the other hand, the legal con- v. Howell, 75 S. E. 202, 138 Ga. 248. struction of a will is not cognizable 5. Risliton v. Cobb, 5 My. & Or. 150. by the appellate court when sitting 6. Kennell v. Abbott, 4 Ves. 802; to determine the question of its pro- Wilkinson v. Joughin, L. R. 2 Eq. bate. Small v. Small, 4 Greenl. 220. 319. And see Cowie v. Strohmeyer, 136 N. 7. See Meluish v. Milton, 3 Ch. D. 263 § 226 LAW or WILLS. [pakt II. § 225. Fraud, Undue Influence, etc., vitiate when acting upon a Weak though Capable Mind. Fraud and imposition, or undue influence, vitiate a will, when- ever practiced upon a weaker mind to the extent of overpowering and directing it, provided the result be such that others have a right to complain. Such weakness of mind need not, of course, amount to actual incapacity for making any will ; ^ though is actu- ally incapable, still less can one's will be established. The question, it is said, whether a will is the free and voluntary act of the testator, or the result of fraud or of influences unduly operating upon him in consequence of which his will was made subo'rdinate to that of another, depends upon the question, whether he had sufficient intelligence to detect ithe fraud, or strength of will to resist the influences brought to bear upon him.^ There can be no fatally undue influence, unless theire is a person incapable of pro- tecting himself as well as a wrong-doer to be resisted.^ The two grounds of opposition, — (1) that the testator was not of sound and disposing mind ; and (2) that the will was procured by fraud, compulsion, or undue influence, — ^are often so closely connected as to be properly made together at the probate, the issue being deter- mined by the proof adduced at the trial,^ although the burden of proof resits differently in the two issues.' § 226. Bodily and Mental Condition at the Time of Execution of Great Consequence in the Issue. In such an issue, therefore, it is of great consequence to ascertain 27, 29. Such questions of fraud as braced in one inquiry of devisavit vel partly or wholly vitiating the will non, where both questions are con- ought to be determined in probate and nected together. Wilson's Appeal, 99 not chancery, under modern practice. Penn. St. 545. lb. 3. See § 239. To speak literally, 8. See Lord Donegal's Case, 2 Ves. one who is mentally incompetent can- Sen. 408, by Lord Ilardwicke. not be the subject of fraud or coer- 9. fJrifnth V. DifTenderfTer, 50 Md. cion in a legal sense. 57 So. 450 406. (Ala.). Yet feebleness of mind may 1. I-Atham V. Udell, 38 Mich. 238. always be shown as an element in 2. Tlie issues of mental unsi.und- such controversies over a will. 136 ness and undue influence may be em- N. Y. S. 1085. 2G4 CHAP. X.] EKROE^ rRAUD_, AND UNDUE INFLUENCE, § 227 tihe mental and physical condition of the testator at and about the time the will in question was executed. What, for example, would be improper influence in a person of feeble health, might not be such in the case of one in robust health ;^ and what would not amount to moral coercion while the testator was in his prime, might prove such when he approached his second childhood.^ In fact, controversies of this kind occur most commonly where the decedent was at the time of executing tbe instrument in declining health of mind and body, and so detached from his usual surround- ings as to be peculiarly exposed to the secret machinations and im- portunities of some person or persons who, purposely or through favoring opportunity, hedged him about as life and reason ebbed away. And numerous cases might be cited to illusitrate how readily a will may be set aside, without much regard to theoretical distinctions of compos or non compos, wherever it appears that for procuring it a person of at least weak capacity, and nearly, if not altogether out of his mind, was coerced or imposed upon.^ On the other hand, some have thought that the exercise of undue influ- ence necessarily presupposes weakness of mind in the testator ; and, certainly, it matters little how ingenious is the fraud, or how coer- cive the influence, if there be intelligence enough to detect, and strengtb enough to resist.^ § 227. Undue Influence defined; Something Sinister is always imputed in the Present Connection. Undue influence is defined as that which compels the testator to do thiat which is against his will, from fear, the desire of peace, or 4. Griffith v. Diffenderffer, 50 Md. strong here to repel the usual pre- 466; Haydock v. Haydock, 33 N. J. sumption. 86 A. 485, 238 Penn. 585. Eq. 494. 6. Mairs v. Freeman, 3 Redf. (N. 5. Perret v. Perret, 184 Penn. St. Y.) 181; Haydock v. Haydock, 33 N. 131, 39 A. 33. Soundness of mind J. Eq. 494; Cliappell v. Trent, 90 Va. and body does not carry immunity 849, 19 S. E. 314. from fraud or undue iniluence. 7. Colt, J., in Shailer v. Bumstead, Olson's Estate, 126 P. 171, 19 Cal. 99 Mass. 121; § 225, supra. App. 379. But proof must be very 265 § 227 LAW OF WILLS. [pART 11. some feeling which he is unable to resist.* We saj that the influ- ence must be undue, in order to vitiate the instrument, because in- fluences of one kind or another surround every rational being, and operate necessarily in determining one's course of conduct under every relation of life. Within due and reasonable limits such in- fluence affords no ground of legal objection to his acts. Hence mere passion and prejudice, the influence of peculiar religious or secular training, of personal associations, of opinions, right or wrong, imbibed in the natural course of one's experience and con- tact with society, cannot be set up as undue to defeat a will, if, in- deed, it were possible to gauge the depth of such influences at all.' '■' It is extremely difficult," as Lord Cranworth has observed, " to state in the abstract what acts will constitute undue influence in question of this nature. It is sufficient to say, that, allowing a fair latitude of construction, they must range themselves under one or other of these heads — coercion or fraud. ^ Xot even can the circumstance that the influence gained by one individual over another was very great, be treated as undue in our present connection ; especially if the person influenced had free op- portunity and strength of mind sufficient to select what influences should guide him, and was in the full sense legally and morally a responsible being. " In a popular sense," says Lord Cranworth, " we often speak of a person exercising undue influence over an- other, when the influence certainly is not of a nature which would 8. Turner v. Cheesman. 15 N. J. A. 453, 116 Md. 605; McNitt's Es- Eq. 243 ; Gardiner v. Gardiner, 34 N. tate, 78 A. 32, 229 Pa. 71. Y. 155; 1 Redf. (N. Y.) 249; Blnkey 9. See Newton v. Carberry, 5 V. Blakey, 33 Ala. 611; Leverett v. Cranch C. C. 632. Carlisle, 19 Ala. 80; 38 Ala. 131; 1. Boyse v. Rossboronwh, 6 H. L. Potts V. House, 6 Ga. 234; Davis v. Gas. 6; 3 DeG. M. & G. 817. And see Calvert, 5 Gill & J. 269, 25 Am. Dec. Sir James Hannen in Wingrove v. 282; Wittnian v. Goodhand, 26 Md. Wingrove, 11 P. D. 83. It is a spe- O't: O'Xcall v. Earr, 1 Ricli. 80, 42 cies of constructive fraud not to be Am. Dec. 404; Marshall v. Flinn, 4 defined by any fixed words. Smith v. Jones L. 199; De NiefT v. Howell, 75 Henline, 174 111. 184, 51 N. E. 227; .S. E. 202, 138 Ga. 248 (deception); 69 Ala. 555, 44 Am. Rep. 528. See Buckmnn's Will, 85 A. 246, 80 N. J. Ball's Estate, 141 N. W. 8, 153 Wis. Eq. 556; Duddcrar v. Dudderar, 82 27. 200 CHAP. X.] ERROR, FRAUD_, AND UNDUE INFLUENCE. § 227 invalidate a will. A young man is often led into dissipation by fol- lowing the example of a companion of riper years, to whom he looks up, and who leads him to consider habits of dissipation as venial, and perhaps even creditable; the companion is then correotly said to exercise an undue influence. But if, in these circumstances, the young man, influenced by his regard fox the person who had thus led him astray, were to make a will and leave to him everytlnng he possessed, such a will certainly could not be impeached on the ground of undue influence. ISTor would the case be altered merely because the companion had urged, or even importuned, the young man so to dispose of his property ; provided only, that in making such a will, the young man was really carrying into effect his own intention, formed without eitlier coercion or fraud." ^ To suppose, however, instead of this evil influence, selfishly ex- cited to the exclusion of others who, rightly considered, were equal or greater objects of the testator's bounty, an ascendency gained and exerted to reclaim from dissipated habits and for some just and benevolent purpose, this is never likely to invalidate a will, however earnest or powerful. By this we do not intend that justifi- able ends are to be sougth by unjustifiable means ; nor that what one earnestly believed to be a just, benevolent, and unselfish purpose, proves necessarily so when the will is set up for probate. But should an intimate friend, a spiritual adviser, or some member of the testator's household to whom he is strongly attached, earnestly dissuade him from an unjust purpose, urge him not to disinherit those entitled to his bounty, against whom, without good cause, his heart has been locked up, plead and urge him to become recon- ciled, to forgive, to part from life in charity and peace, — in short, to make what all ought to call a fair and natural will ; and this in an unselfish spirit and without seeking some underhand personal advantage, such influence should not be allowed to disturb the will, on any mere suggestion that it was potent in preventing the 2. Boyse v. Rossborough, 6 H. L. see Lord Pc^nzance in Parfitt v. Law- •Cas. 6, 3 De G. M. & G. 817. And less, L. R. 2 P. & D. 462. 267 § 228 LAW OF WILLS. [PAKT II. wrong.^ In short, the undue influence which vitiates the testa- ment has always something sinister, corrupt, and selfish a.bout it^ when properly viewed, however sly and secret in its workings, or varnished over with hypocrisy, and hence is difficult to be traced except in the effect it has produced. § 228. How Undue Influence may be exerted. Undue influence may be exerted by physical coercion, by impor- tunity, or by threats of personal harm and duress. But a more common kind of undue influence than this is where the mind and the will of the testator have been overpowered and subjected to the will of another, so that while the testator appeared to execute will- ingly and intelligently, it was really the will of another, induced by ithe paramount influence exercised upon a weak or impaired mind. " Such a will," obseiwes the court of appeals in a New York case, " may be procured by working upon the fears or the hopes of a weak-minded person; by artful and cunning contriv- ances; by constant pressure, persuasion, and effort, so that the mind of the testator is not left free to act intelligently and under- standingly." ^ And we may well assume that a pressure of vdnat- ever character, whether it act's on the fears or on the hopes of an individual, is, if so exerted as really to overpower tthe volition, a species of restraint under which no valid will can be made.^ Whatever, indeed, destroys free agency and constrains a person to do what is against his will, and what he would not do if left to 3. Persuasions used by a testator's v. Montgomery, 93 Ala. 293, 9 So. children to induce a devise to a 311; Waters v. Waters, 78 N. E. 1, brother's or sister's children who were 222 111. 26, 113 Am. St. Rep. 359; poor will not condemn a will. Har- Turner's Appeal, 44 A. 310, 72 Conn, rison's Will, 1 B. Mon. 351. Nor are 305; Converse v. Mix. 115 P. 305, 63 considerations addressed to a testa- Wash. 318. tor's good feeling, from disinterested 4. Earl, J., in Marx v. McGlynn, and honorable motives, and simply 88 N. Y. 357, 370. influencing his better judgment, to be 5. Hall v. Hall, L. R. 1 P. & D. deemed " undue." Tucker v. Field, 5 48] ; Haydock v. Haydock, 33 N. J. Redf. (N. y.) 139. And see Cornwrll Eq. 494. V. Riker, 2 Dcm. (N. Y.) 354; Eastis 268 CHAP. X.] EEROR^ FRAUD, AND UNDUE INFLUENCE. § 229 Limself, is undue influence in testamentary law, whetlier tihe con- trol were exercised by physical force, threats, importunity, or any other species of mental or physical coercion.^ And undue influ- ence sufficient to invalidate a will may be exerted without positive frauid,^ notwithstanding the elements of fraud and coercion which may mingle together where undue influence is actually exercised. Nor is undue influence dependent on fixed principles or measured by degree or exteni ; but by its effect in the particular case, and by a comparison of the two minds which antagonize. If found suffi- cient to destroy tIhe testator's free agency in the transaction at issue, it mast be pronounced undue even though slight; * and con- versely, where the testator has resisted the pressure successfully, and acted for himself, there is no undue influence whioh in any positive sense impairs his will. § 229. To invalidate a Will for Fraud, Undue Influence, etc., Testator's Free Agency must be overcome. To invalidate, therefore, a will on the ground of fraud, compul- sion, or undue influence, such conduct must be of such a character as to destroy the testator's free agency, and substitute for his own another person's will.^ Thus impontunity, in its legal acceptation, 6. Haydock v. Haydock, 33 N. J. unsound in mind, may be such as to Eq. 494; Layman v. Conrey, 60 Md. excite terror and make him execute 286; Mueller v. Pew, 106 N. W. 840, as his will an instrument which, if he 127 Wis. 228; 106 N. W. 1129, 143 had been free from such influence, he Mich. 476; 91 N. Y. S. 1097; John- would not have executed. Imaginaiy son V. Farrell, 74 N. E. 760, 215 111. terrors may have been created siiffi- 542; Turner's Appeal, 44 A. 310, 72 cient to deprive him of free agency; Conn. 305. ,a will thus made may possibly be de- 7. Stewart v. Elliott, 2 Maekey (D. scribed as obtained by coercion." C.) 307. Boyse v. Rossborough, 6 H. L. Oas. 6. 8. Haydock v. Haydock, 33 N. J. And he proceeds to state certain con- Eq. 494. trivances which might be employed The elements of fraud or coercion in the course of exercising undue in- in cases of undue influence must be fluence, and yet have a fraudulent liberally interpreted. "The conduct character. of a person in vigorous health to- 9. Mountain v. Bennett, 1 Cox. 355; wards one feeble in body," observes Kinleside v. Harrison. 2 Plillim. Lord Cranworth, "even though not 551; Gardner v. Gardner, 22 Wend. 269 229 LAW OF WILLS. [PAET II. here imports such a degree of urgent and incessant soliciting that^ under all the circumstances, and considering (the testato^r's condition of mind and body at the time, it should be concluded that be was too weak to resist it, and his disposition could not be deemed the free act of a capable testator.^ The undue influence thus exerted amounts at least to a moral coercion, and constrains the testator, through fear, the desire of peace, or some other motive than affec- tion or a sense of duty, to do that which was really against his will, and usually what was fair.^ On the other hand, mere honest argument or peirsuasion, earnest solicitation, and such influence as one person may deservedly ob- tain over another are as a rule insufficient to affect the validity of a will, in the absence of decisive fraud, even though one should by such means procure a disposition in favor of himself or of some one else whose interest he has maintained.^ And a will induced 536; Marx v. McGlynn, 88 ^^ Y. 357 Eckert v. Flowry, 43 Penn. St. 46 Rose V. Taylor, 45 111. 485; Morris v Stokes, 21 Ga. 552; Sutton v. Sutton 5 Barring. 469, 60 Am. Dec. 650 Duffield V. Morris, 2 Harring. 375 McDaniel v. Crosby, 19 Ark. 533 \Yhitman v. Goodhand. 26 Md. 95 Layman v. Conrey, 60 Md. 286; Hay dock V. Haj-dock, 33 N. J. Eq. 494 Blakcy v. Blakey, 33 Ala. 611; Tui ner v. Cheesman, 15 N. J. Eq. 243 McFadin v. Catron, 120 Mo. 252, 35 S. W. 506; Bulger v. Ross, 98 Ala. 267, 12 So. 803: Schmidt v. Sclimidt, 47 Minn. 451, 50 N. W. 598; O'Brien's Appeal, 60 A. 880, 100 Me. 155; Bohler v. Hicks, 48 S. E. 306, 120 Ga. 800; Stewart v. Lyons, 47 S. E. 442, 54 W. Va. 665; Crowson v. Crowson, 72 S. W. 1065, 172 Mo. 691; Stull v. Stull, 96 N. W. 196, 1 Nev. 380; Rick'.'? Estate, 117 P. 532, 160 Cal. 450, 467; RaJHon V. Raison, 146 S. W. 400, 148 Ky. 116; 105 Cal. 607, 133 P. 307. 1. See Kinleside v. Harrison, 2 Phillim. 551, 552, by Sir John Nicholl; Styles, 427; Armstrong v. Huddleston, 1 Moore P. C. 478; Clark V. Fisher, 1 Paige, 171; Davis V. Calvert, 5 Gill & J. 269, 25 Am. Dec. 282; Baldwin v. Parker, 99 Mass. 84, 9G Am. Dec. 697; 135 Ind. 440, 35 X. E. 279; RoUwagen v. Rollwagen,^ 63 N. Y. 504; Coit v. Patchen, 77 N. Y. 394, 33 Am. Rep. 626; Tawney v. Long, 76 Penn. St. 106; Dale's Ap- peal, 57 Conn. 127; Thompson v. Ish, 99 Mo. 160, 13 S. W. 510, 17 Am. St. Rep. 552. 2. Williams v. Goude, 1 Hagg. 581; Hall v. Hall, 38 Ala. 131; Tawney v. Long, 76 Penn. St. 106; § 225. 3. Swinb. pt. 2, § 4, pi. 1; Clapp v. Fullerton, 34 N Y. 197, 90 Am. Dec. 681; Sutton v. Sutton, 5 Harring. 459; Dean v. Negley, 41 Penn. St. 312, 80 Am. Dec. 620; Roe v. Taylor, 45 111. 485; Howe v. Howe, 99 Mass. 88; Shailcr v. Bumstead, 99 Mass. 270 CHAP. X.] ERROR, FR^iUD, AND UNDUE INFLUENCE. § 229 by kind offices as well as fair argumemt, is not for such reasons to be set aside.* The influence of affection and attachment, such as- induces the desire to gratify, is not undue in any legal sense.^ ]Sror do fair and flattering speeches, though abundantly proved, vitiate the will, unless coupled with fraud.® Nor even the fact that the arguments or persuasions of the person seeking a chief benefit by the will were indelicate, indecorous, or improper.'' Nor that such a party passively encouraged the testator's angry resent- ment towards others cut off eventually in his favor.^ Nor simply that the person exerting an influence had illicit sexual intercourse with the testatrix.^ Nor that there was a combined persuasion of 112; McDaniel v. Crosby, 19 Ark. 533; 18 Hun (N. Y.), 403; Hughes v. Mur- tha, 32 N. J. Eq. 288; Miller v. Miller, 3 S. & R. 267; Yoe v. McCord, 74 111. 33; Schofield v. Walker, 58 Mich. 96, 24 N. W. 624; Trost v. Dingier, 118 Penn. St. 259, 14 Am. St. Rep. 593, 12 A. 796; Smith v. Keller, 98 N. E. 214, 205 N. Y. 39; Robinson v. Stu- art, 73 Tex. 267, 11 S. W. 275; Wil- coxon V. Wilcoxon, 165 111. 454, 46 N. E. 369; Kerr v. Lunsford, 31 W. Va. 6.59, 2 L. R. A. 668; 49 Ark. 367, 5 S. W. 590; Pensyl's Will, 157 Penn. St. 465, 27 A. 669; Turner v. Anderson, 139 S. W. 180, 236 Mo. 523; Rick's Estate, 117 P. 532, 160 Cal. 450; 136 N. Y. S. 1086; 125 P. 1034. To rule to a jury that undue in- fluence is " improper influence " does not express the legal idea. 98 Mo. 433, 11 S. W. 974. 4. Gleespin's Will, 26 N. J. Eq. 523, 32 N. J. Eq. 701; Rogers v. Dia- mond, 13 Ark. 474 ; cases, supra. 5. Williams v. Goude, 1 Hagg. 581; 1 Wms. Exrs. 47; Shaul's Will, 143 N. Y. S. 433. 6. Swinb. pt. 7, § 4, pi. 1; 1 Wms. Exrs. 47; Small v. Small, 4 Greenl. 220. 7. Newhouse v. Godwin, 17 Barb. 236; Tawney v. Long, 76 Penn. St. 106. 8. Woodward v. James, 3 Strobh. 44. 9. Farr v. Thompson, Cheves, 37; 1 Rich. 80; Roe v. Taylor, 45 111. 485; Wainwright's Appeal, 89 Penn. St. 220; Sunderland v. Hood, 84 Mo. 293; 82 Ky. 93, 56 Am. Rep. 880; Ar- nault V. Arnault, 52 N. J. Eq. 801; Johnson's Estate, 159 Penn. St. 630; Middleton's Will, 64 A. 1134, 68 N. J. Eq. 798; 85 N. Y. S. 294. But un- lawful cohabitation may be evidence of undue influence in connection with other facts. Wainwright's Appeal, supra; Main v. Ryder, 84 Penn. St. 217, 28 A. 448; McClure v. McClure,. 86 Tenn. 173, 6 S. W. 44; §§ 22, 337a; Smith V. Henline, 174 111. 184, 51 N. E. 227. One who voluntarily joins a re- ligious order whose by-laws requir a 271 § 230 LAW OF WILLS. [pART n. the proper beneficiaries.®^ In all such instances we are to suppose tihat tlie testator's free agency is not overcome. But while any person has the right to fairly persuade a testator to make him his executor or a beneficiary under his will, an un- favarable impression is afforded where the testator is shown to be of weak judgment, the opportunity for undue influence consider- able, aud the benefit to the persuading party under the will far greater, if justifiable in any degree, than a testator would natu- rally bestow.^ And wills have been set aside for the importunities or undue pressure of intimate friends or professional or spiritual advisers, who stand with the decedent in peculiar relations of con- fidence of which they have taken an unfair advantage.^ § 230. The Same Subject. In the absence of fraud ot imposition or undue influence of some kind, the court will not speculate as to the probable motives of the testator.^ 'Nor is fraud or imposition to be imputed solely on thet ground that the testator depended much upon the legatee for the management of his affairs and attendance to his personal wants.* Indeed, lawful influence such as grows out of legitimate or social relations, must be allowed to produce its natural fruits even in wills. The presumption favors a lawful, rather than unlawful, ex- ercise of influence imder such circumstances ; and the exertion of a natural influence upon the testator can never afford adequate ground of itself foT setting a natural testament aside.^ But fraud or artful contrivance by which others who are inno- cent suffer wrong may afford good reason for setting aside the will, in suoh cases, even though no coercive influence should appear. vow tliat all one's property s'lall be 4. lb.; Elliott's Will, 2 J. J. Marsh, bestowed upon it may make such a 340. will without having coercion imputed. 5. Small v. Small, 4 Me. 220, 16 67 Minn. 3.35, 69 N. W. 1090. Am. Dec. 253; Donovan's Estate, 73 9a. 143 N. Y. S. 732. P. 1081, 140 Cal. 390; Sechrest v. Ed- 1. Walker v. Hunter, 17 Ga. 364. wards, 4 Met. (Ky.) 163; Lowe v. 2. See § 246, post. Williamson, 2 N. J. Eq. 82; Gilreath 3. Blecckcr v. Lynch, 1 Bradf. 453. v. Gilroatli, 4 .Jones Eq. 142; Norton V. Pa.xion, 110 Mo. 456, 19 S. W. 807. 272 CHAP. X.] EREOR^ FRAUD, AND UNDUE INFLUENCE. § 231 As, for instance, where one relative has produced the disinherit- ance of another hy false representations, and abused peculiar op- portunities of access to color as he likes the sick man's disposition.* Or where one dictates in fact the will, the testator being at the time unable to speak, and falsely pretends to interpret the dying per- son's wishes according to his own.'' Or where by false representa- tions as to the contents of an existing will one has induced the tes- tator to make a new one.^ In short, the will should be the hona fide will of the testator, however induced; from a fraudulent in- ducement no one should ever, if possible, be suffered to profit to the injury of the innocent; and a will, the offspring of deception, can- not stand, any more than the offspring of constraint.^ § 231. The Same Subject. Secrecy in the execution of the will, if clearly attributable to the mind and wishes of the testator, is no badge of fraud.^ But this and all the circumstances in fact which we have pronounced insuffi- cient of themselves, may from their association with other facta and circumstances of the case become of pregnant consequence upon the issue. Thus flattering speeches, may, if deceitfully em- ployed to direct a mind tliat has lost its self-direction, render void the wall upon which they have operated. And while, as we have seen, neither advice, nor argument, nor honest and moderate inter- cession or persuasion, unaccompanied by fraud or deceit, would vitiate a will made freely and from conviction, though such a will might not have been made but for such influences," there may be, as we have also intimated, an overpowering importunity of advice, of argimient or intercession, honestly or dishonestly exercised, but on the whole inexcusably, which, in view of the testator's feeble 6. Dietrick v. Dietrick, 5 S. & R. 8. Moore v. Blauvelt, 15 N. J. Eq. 207 ; 6 S. & R. 55 ; Nussear v. Arnold, G7. 13 S. & R. 323. 9. Florey v. Florey, 24 Ala. 241. 7. Scribner v. Crane, 2 Paige, 147, 1. Coffin v. Coffin, 23 N. Y. 9. 80 21 Am. Dec. 81. And see Lowe v. Am. Dec 235; § 245; 43 N. J. Eq. 167. Williamson, 1 Green Ch. 82; Blan- 2. Supra, § 229. chard v. Nestle, 3 Denio, 37. 18 273 § 231a LAW OF WILLS. [pAirr ii. condition so that he could not combat it, may and ought, if proved, to avoid a disposition made in consequence.^ Some of the cases have held that such an influence, to produce so disastrous a re- sult, must have been consciously exercised with a view to the I'esult; * but to a candid mind it can make no difference in favor of the will that the party thus urging it was so carried away by ex- citement or blinded by selfish motives falsely ascribed, as not to be conscious of the over-pressure he brought so indiscreetly and un- fairly to bear upon its execution. And persuasion used in ex- tremis, or where the testator is on his death-bed, is of all instances of persuasion the most repulsive to a court of justice.^ Less undue influence and less fraud are required, as we have seen, to procure a will unlawfully from a person of weak and im- paired intellect and physical feebleness, tlhian from a person in full mental and bodily vigor.® § 231a. Bounty distinguished from Legal Duty, in Such Issues. Undue influence should not be readily imputed to a beneficiary, 3. See Buchanan, C. J., in Davis v. monk asked the gentleman if he would Calvert, 5 Gill & J. 301; Brovpn v. give such a manor and lordship to his Moore, 6 Yerg. 272; 53 A. 253, 203 monastery. The gentleman answered Penn. 400. yea. Then, if he would give such and 4. 1 Wms. Exrs. 47, Perkins's such estates to such and such pious note; Small v. Small, 4 Greenl. 220, uses. The gentleman answered yea, 16 Am. I>ec. 253; Martin v. Teaguo, to them all. The heir-at-law, observ- 2 Sqiears, 268. ing the covetousness of the monk, and 5. Dickinson v. Moss, (1790). 4 that all the estate would be given Burn 58, cited 1 Wms. Exrs. 47. See from him, asked the testator if the oon.^piracy of undue influence in monk was not a very knave, " who Cowan V. Shaver, 95 S. W. 200, 197 answered yea." And upon the trial Mo. 203. " for the reasons above said, it Avas Swinburne states an instance of adjudged no will." Swinb. pt. 2, § oral will (aswills of personalty were 25, pi. 5. ff^irmerly allowed to be made) to 6. Reichenbach v. Ruddach, 127 Hhow that a dying man's answers to Penn. St. 564, 18 A. 432 ; Boyse v. cjuc'Stions put by crafty and impor- Rossborough, 6 H. L. Oas. 6; Robinson tunate persons ought not to be re- v. Robinson, 53 A. 253, 203 Penn. 400; reived as the free expression of his Somers v. MeCready, 53 A. 1117, 96 will in favor of such persons. Tlie Md. 347; 53 A. 1125, 63 N. J. Eq. 630. 274 CHAP. X.J EEROK^ FRAUD^ AND UNDUE INFLUENCE. § 232 whose object is to claim not a mere bounty under the will, but the settlement thereby of a lawful claim for service rendered ; for this is simply to hold him to his legal duty.' § 232. Fraud, Contraint, and Undue Influence relate to the Time of Execution ; Constraint removed later. The constraint of fraud or undue influence necessa.ry to set aside a will must be a present restraint, fraud, or undue influence, ope-' lating upon the testator's mind in the very act of making the will, and affecting its execution or the dispositions it makes.^ Contem- l^oraneous threats have this effect.^ But w'hile threats, violence, or any undue influence exerted in the past, shown as isolated facts, and in no way connected with the testamentary act, cannot be ad- duced to impeach it, conduct of this sort which bears upon the execution of the instrument in controversy, and is directly and immediately connected with it, though somewhat remote as to tlhe point of occurrence, may aid in avoiding the will upon which it operated.^ "The undue influence," it is well observed, " must be an influence exercised in relation to the will itself, not an influence in relation to other matters or transactions. But the principle must not be carried too far." ^ In short, undue influence, fraud or 7. Westcott V. Sheppard, 51 N. J. R. I. 255. See also Boyse v. Ross- Eq. 315, 25 A. 254, 30 A. 428. borough, 6 H. L. Cas. 6; Ketjliura v. 8. McMahon v. Ryan, 20 Peiin. St. Stearns, 76 Mo. 396; 99 S. W. 909, 30 339; Eckert v. Flowry, 43 Penn. St. Ky. Law, 948. 40; 127 Penn. St, 564, 18 A. 432; 117 2. Lord Cranworth in Boyse v. €al. 288, 49 P. 192; Pooler v. Crist- Rossborough, 6 H. L. Cas. 6. "Where man, 145 111. 405, 34 N. E. 57. a jury sees that, at and near the time 9. Moore v. Blauvcdt, 15 N. J. Eq. when the will sought to be impeached 367. And see \Yoodman v. Illinois was executed, the alleged testator Bank, 71 N. E. 1099. 211 111. 578; was, in other important transactions, iStruth V. Decker, 59 A. 727, 100 Md. so under the influence of the person 368; Rick's Estate, 117 P. 532, 160 benefited by the will, that as to them Cal. 450, 467; Martin v. Beatty, 98 he was not a free agent, but was act- N. E. 230, 254 111. 148. ing under undue control, the eircum- 1. Of. Davis V. Calbert, 5 Gill & J. stances may be such as fairly to war- 269, 25 Am. Dec. 282. 303. with Mc- rant the conclusion, even in the ab- Mahon v. Ryan, and Eckert v. Flowry, sence of evidence bearing directly on supra; Chandler v. Ferris, 1 Harring. the execution of the will, that in re- 454; Rutherford v. Morris, 77 111. gard to that also the same undue in- 397; Jencks v. Court of Probate, 2 fluence was exercised." lb. 275 § 233 LAW OF WILLS. [PART II. restraint cannot of itself defeat a will offered foir probate, unless tlie evidence proves, not only that it was in fact exercised, but also that its exercise was effectual in producing the particular will offered.2^ It is also observable that if the alleged fraud, constraint or undue influence was actually removed after the will was made, and the testator had ample oppoa-tunity while he lived to revoke if he saw fit and dispose of his property differently, the fact that he makes no such effort tends to negative such allegation.^ § 233. Testament need not originate with Testator ; but the Will must be his. Our testamentary law does not insist that the making a will should originate with the testator; nor is proof to that effect requisite, provided it be shown that the deceased intended the in- strument as his own, and completely understood, adopted, and sanctioned whatever disposition was proposed or suggested to him, and embodied in that instrument.* But if any part or clause of the will, or the whole instrument, was first suggested to the testa- tor by any other person and adopted by the testator, such adoption must not be the result of his incapacity or weakness of mind, nor of fraud, circumvention, force, or undue influence; and whether it be so, the trier or jury must decide from all the facts and cir- cumstances presented.^ 2a. See 229 111. 557, 82 N. E. 365. gree, it is proscribed that the testator 3. Coleman's Estate, 185 Peim St shall, at all events, have sufficient ac- 437, 443, 40 A. 69; Mather's Will, 56 tive memory to collect in hia mind, A. 982, 76 Vt: 209; Dock v. Derk, 82 vrithout prompting, the particulars of N. W. 293, 106 Wis. 470. the alleged transaction. Dolafield v. 4. Constable v. Tufnell, 4 Hagg 477; s. c. on appeal, 3 Knapp, 122 Jones V. Jones, 14 B. Mon. 464; Tuni son V. Tunison, 4 Bradf. (N. Y ) 138 5. 1)h\\h v. Calvert, 5 Gill & J Parish, 25 N. Y. 10. The testator, if not originating the particular will and its provisions, should at least be liorfoctly capable of doing so. White's Will, 121 N. Y. 406, 24 N. E. 935. See 269. 25 Am. Dec. 282. Wo have al- also Chappell v. Trent, 90 Va. 849, rendy seen that by the latest test np- 19 S. E. 314. I)licd to mental capacity of a low do- 19 S. E. 314. See, furtlior, 08 N. E. 27G CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 235 § 234. A Will invalidated for Fraud, Undue Influence, etc., fails as to All whose Benifit is procured, A will invalidated for fraud, force, or undue influence, fails, not only as to the person exerting it, but as to all for whom a benefit was thereby procured.^ § 235. These Maxims applied to Parental and Filial Relation. Threats of personal estrangement or non-intercourse, addressed by a child ito a dependent parent, or threats of litigation between the children, may thus destroy the parental disposition upon which they operated.^ On the other hand, the natural influence acquired by one in the parental or filial relation may be allowed its just and natural operation, as powerful, beyond that of the mosit intimate friends.^ A parent's will is not to be set aside for discriminating in favor of dutiful and affectionate adult children as against those who have failed in filial duty and affection or have willfully op- posed the parent's wishes or behaved with harshness and disre- spect.^ More than 'this, the natural love which is felt for one child a;bove another, has been recognized as a suificient ground for testa- mentary preference.^ 526, 204 111. 384; Robinson v. Robin- the daughter, to whom he was tend- son, 53 A. 253. 203 Penn. 400; Sickles' erly attached. Will, 53 A. 1125. 64 N. J. Eq. 791; 8. Lowe v. Williamson, 2 N. J. Eq. Hayes v. Hayes, 145 S. W. 1155, 242 82; Converse v. Mix, 115 P. 305, 63 Mo. 155; Hurd v. Reed, 102 N. E. Wash. 318; Gilreath v. Gilreath, 4 1048, 260 111. 104; 142 N. W. 729, 122 Jones Eq. 42; Seehrest v. Edwards, 4 Minn. 463. Met. (Ky.) 163; Mason v. Williams,. 6. Davis V. Calvert, 5 Gill & J. 269, 60 N. Y. Supr. 398. 25 Am. Dec. 282. Butt see post, §§ 9. Pensyl's Will, 157 Penn. St. 465, 248-250. 27 A. 669; McFadin v. Catron, 12a 7. Moore v. Blauvelt, 15 N. J. Eq. Mo. 252, 25 S. W. 406; 65 N. Y. S. 307. In Hartman v. Strickler, 82 Va. 605; 77 N. Y. S. 513; 54 A. 97, 64 225, a will in a son's favor was set N. J. Eq. 327; Purdy v. Evans, 160 aside, where it appeared that the tes- S. W. 1071, 156 Ky. 342 (child twelve tator, a feeble old man, lived with years old). him in fear and subjection, and that 1. McFadin v. Catron, 120 Mo. 252, the son had threatened to whip him 25 S. VV. 506; Hook's Estate, 56 A. and had prevented him from seeing 428, 207 Penn. 203. 277 § 23G LAW OF WILLS. [pART IL § 236. These P/Taxims applied to the Marital Relation; a Wife's or Mother's Influence, etc. . The wife lias been treated with a marked indulgence in testa- mentary cases which involve issues of this kind ; out of considera- tion, as it would appear, to her sex and marital position, which in- cline her to persuasive, tender, and persistent, rather than over- ruling methods of influence, and to the impression which popularly obtains, moreover, that a true and faithful spouse is not likely to gain more under her husband's will than she really deserves. Hence a wife's pleading, and even her importunity with her hus- band, seldom avoids a will made under its influence, so long as it may be supposed that the husband weighed what she proposed and deliberated for himself, and that she practised no deception upon him; and, generally speaking, a wife may justly influence the making of her husband's will for her own benefit or that of others, so long as she does not act fraudulently or extort benefits from her husband when he is not in condition to exercise his faculties as a free agent. ^ The momentous influence which a spouse may wield in this closest and tenderest of all relations cannot be easily im- peached as fo'i" undue advantage, especially when she is mother or grandmother of the next of kin. Yet each case furnishes its own criterion; for, after all, duress and deception are the sole attributes of neither sex. If, therefore, a man makes a will in his sickness, by tlie over-importunity of his wife, to the end he may be quiet, this (says Rolle, C. J.) shall be pronounced a will made by constraint and not a good one ; ^ by 2. Mountain V. Bennett, 1 Cox, 355 ; to finally determine among them) Parfitt V. Lawless, 2 P. & D. 462, Ball's Estate, 141 N. W. 8, 153 Wis 470; Small v. Small, 4 Me. 220, 16 27; Lide v. Lide, 2 Brev. 403 Am. Dec. 253; Gardner v. Gardner, Pierce v. Pierce, 38 Mich. 412; Zim 22 Wend. 526, 34 Am. Dec. 340; 44 N. merman v. Zimmernnn, 23 Penn. St E. 17, 57 Am. St. Rep. 185, 32 L. R. 375; Moritz v. Brough, 16 S. & R A. 298; Peterson's Will, 48 S. E. 561, 403; Rankin v. Rankin, 61 Mo. 295 L36 N. C. 13 (property left to wife Hughes v. Murtba, 32 N. J. Eq. 701 to exclusion of testator's collateral Meeker v. Meeker, 75 111. 260; Orth kin) ; 29 App. D. C. 30 (all left to v. Orth, 145 Ind. 206, 42 N. E. 277. wife excluding children or leaving her 3. Ilaeker v. Newborn, SLyles, 427. 278 CHAP. X.] ERROR^ FRAUD^ AND UNDUE INFLUENCE. § 2 30 which we must, however, uiidorstand that his free agency is over- come/ And if the wife's efforts were specially directed to pro- curing a will peculiarly acceptable to herself and prejudicial to others, or a will after her own precise dictation, this should bo taken against her, sooner than the mere use of that ascendency over a husband which one gains by her virtues and devotion, so as to win a reward which he liberally bestows because her pleasure has become the law of his conduct.^ More than this, when a wife's malevolence against an own child causes her to unduly influence the husband and father to disinherit that cliild, the will should not stand. ^ A mother's influence is not likely to be unwisely exercised as between her own children; but where the claims of step-children conflict with those of her own offspring, her kindred, or hereelf, undue influence or frauid may be more readily inferred from her suspiciouis conduct. Upon such an issue it is competent to show that no foundation existed fo>r excluding children of the former wife from participation in their father's estate; "^ at the same time 4. Gardner v. Gardner, 22 Wend. tives, to the end that these impres- 526, 34 Am. Dec. 340, cases supra. sions, which she knows he had thus 5. Small V. Small, 4 Me. 220, 16 formed to their disadvantage, may Am. Dec. 253. And see Beaubien v. never be removed: such contrivance Cicotte, 12 Mich. 459. may, perhaps, be equivalent to posi- 6. Evidence that in a personal tive fraud, and may render invalid quarrel with that child slie thre-.tened any will under false impressions thus to have her disinherited wholly before kept alive." Boyse v. Rossborough, the will was executed is competent. 6 H. L. Cas. 6, per Lord Cranworth. Ferret v. Ferret, 131 Fenn. St. 131. But his lordship proceeds to admit Gifts from parent to child are not that it is extremely difficult to state held in suspicion. Yess v. Yess, 99 in the abstract what acts will consli- N. E. 687, 255 111. 414; 137 N. W. 954. tute undue influence. And see White 7. Mullen v. Helderman, 87 N. C. v. White, 2 Svv. & Tr. 505. 471. It is also stated in this case by " As to fraud, if a wife, by fal?e- Lord Cranworth, that the difficulties hood, raises prejudices in the mind of defining the point at wliich iuflu- of her hus.band against those who ence exerted over a testator's mind would be the natural objects of his becomes so pressing as to be properly bounty, and by contrivance keeps described as coercion are greatly en- him from intercouise with his rela- hanced when the question is one be- 279 § 236 LAW or WILLS. [pAET II. that mere inequality in distributing between tbe children of two marriages does not prove undue influence.^ In mea'cenary mar- riages, of which those of old and wealthy men with a second wife furnish numerous examples, whatever shows heartlessness on the vvdfe's part towards either the testator or those justly entitled to share witih herself in his bounty, mu£t needs prejudice her case,^ On the other hand, the wife of a later marriage may be found seeking to set aside a will on the ground that her husband's father or the children of a former marriage unduly influenced tlie testa- tor against her.-^ Such a complaint, and the complaint of any wife against her husband's will, may involve an inquiry into her con- duct and character; for if she was ptroved unfaithful and unde- serving, she would have little but her legal rights left to stand upon, though these in our modem practice would usually be found ample enough. The influence of a lawful wife, we may add, is differently regarded from that of one who has cohabited illegally witih the testator; for while one of the latter kind may not be ut- terly debarred from taking under her paramour's will, the lawful kindred and natural objects of his bounty (especially if children or issue) might nevertheless oppose any will as unduly procured by her influence, which displaces them for her benefit, for the very reason that sexual influence is so pervading and powerful.^ The influence of a mistress is more apt to be undue than that of a wife, because its bias is positive in the direction of perverting one's tes- tween husband and wife. " The rela- Raison, 146 S. W. 400, 148 Ky. 116 tion constituted by marriage," he ob- (second wife). serves, "is of a nature which makes 9. Harrel v. Harrel, 1 Duv. 203; it as difficult to inquire, as it would 139 N. Y. S. 185; Reynolds v. Adams, be impolitic to permit inquiry, into 90 111. 134, 32 Am. Rep. 150. See all which may have passed in the inti- Cheney v. Goldy, 80 N. E. 289, 225 111. mate union of afTections and interests 394, 116 Am. St. Rep. 145; Tyner's which it is the paramount purpose of Estate, 106 N. W. 898, 97 Minn. 181 that connecton to cherish." Boyse (exclusion of own children in favor of V. Rossborough, supra. wife's relatives) ; 102 N. E. 4S7, 21S 8. Xicewander v. Nicowandor, 151 Mass. 164. 111. 156, 37 N. E. 698. See Raison v. 1. Gaitlier v. Gaither, 20 Ga. 709. 2. See § 237a. 280 nce is a separate and a subscribing witness or witnesses distinct issue, involving proof that makes prima facie proof of the valid- the testator, though of sound mind, ity of the will offered. Hoffman v. and intending that the instrument Hoffman, 72 N. E. 492, 192 Mass. which he executes with all the legal 416; Waters v. Waters, 78 N. E. 1, formalities shall take effect as his 222 111. 26, 113 Am. St. Rep. 359; will, was induced to execute it by the §§ 172-179, 184a supra. controlling power of another, we 6. Davis v. Calvert, 5 Gill & J. 290 CHAP. X.] EEROK, FRAUD, AND UNDUE INFLUENCE. § 242 Parol evidence is admissible either to prove or to counteract proof of a fraud, notwithstanding the will itself must be in writ- ing; for the purpoB© in such a case is not to vary or control what is written, but to impeach the validity of the instrument itself. Hence oral proof may establish that one will was surreptitiously obtruded for another, and tli-at the testator executed it ignorantly ; ^ or it may rebut a charge of this nature.^ But a testator's own and unsupported declaration to prove that a will apparently regular was forged, or that he was fraudulently induced to execute it under the belief that it was some other paper, are hearsay and inadmissi- ble.^ § 242. Character of the Evidence to establish Fraud or Undue Influence. Issues relating to fraud, force, or undue influence, and espec- ially the last, are generally determined upon circumstantial evi- dence, and inferences drawn from a full presentation of facts which are inconclusive when taken separately. Hence the wide range of inquiry permitted, in cases of this description, so as to set before the jury or trier of the issue whatever bears upon the preparation of the will. While the point of inquiry concerns the testator's condition, and the external influences brought to bear upon him at the time the alleged will was made, the character of those influences may invite much study of their motives, their origin, and growth, and a comparison of counteracting forces in order justly to estimate their probable effect; and as for a tes- tators .condition, his entire moral and intellectual development, is more or less involved in the issue, including his power of resolu- tion to resist or not the pressure which is claimed to have been brought to bear upon him.^ 269, 25 Am. Dec. 282; Tucker v. Cal- tion whether a certain instrument vert, 6 Call. 90; Budlong's Will, 126 offered for probate is forged or gen- N. Y. 423, 27 N". E. 945. uine, evidence of contemporary mat- 7. Doe V. Allen, 8 T. R. 147. ters, tending to show a motive for 8. Doe V. Hardy, 1 Moo. & R. 525. forgery, is inadmissible. Kennedy v. 9. Boylan v. Meeker, 4 Dutch. Upshaw, 64 Tex. 411. 274. See § 243, post. On the ques- 1. Colt, J., in Shailer v. Bumstead, 291 § 242 LAW OF WILLS. [pART 11. ■So, too, is it admissible to prove that former wills or former testamentary plans embodied a different purpose, as tending to show whether or not the testator has understandingly and of his own free will changed his settled plans in favor of the present ar- rangement; while (the juistice or injustice of that arrangement, the natural or unnatural character of the will offered for probate, may open a wide inquiry into family circumstances; for evidence tend- ing to show the i-elation of a testator to the natural objects of his bounty, the feelings he entertained towards them, and their pecu- niary condition, bears upon the issue of undue influence as well as of capacity.^ In establishing the charge of fraud or undue influence, it is further observed that " two points must be sustained : fi^rst, the fact of the deception practised or the influence exercised ; and next, tliat this fraud and influence were effectual in producing the alleged result, misleading or overcoming the party in this particular act. The evidence under the first branch embraces all those exterior acts and declarations of others used and contrived to defraud or control the testator ; and under the last, includes all thiat may tend to show 99 Mass. 121. And so, where both 2. Beaubien v. Cicotte, 12 Mich. mental incapacity and undue influ- 459; Staser v. Hogan, 120 Ind. 207, ence are alleged. Glass's Estate, 103 21 N. E. 911; Melanefy v. Morrison, N. VV. 1013, 127 Iowa 646. And see 152 Mass. 473, 26 N. E. 36; Crocker Lucas V. Parsons, 27 Ga. 593; Jack- v. Chase, 57 Vt. 413, 68 A. 756. Evi- son V. Kniffen, 2 Johns. 31; Reynolds dence showing through what line of V. Adams, 90 111. 134; Pierce v. relatives, or from what sources, the Pierce, 38 Mich. 412; Carpenter v. fortune bequeathed was derived, or Hatch, 64 N. H. 573; 67 N. H. 520; favors received, may have a bearing Foster v. Dickerson, 64 Vt. 233, 24 upon the natural or unnatural char- A. 353; 17 W. Va. 683, 41 Am. Rep. acter of the disposition. Glover v. 682; Lincbarger v. Linebarger, 55 S. Hayden, 4 Cush. 580; Patterson v. E. 709, 143 N. C. 229. See Aumuck Patterson, 6 S. & R. 55; Oxford v. V. Jackson, 78 A. 749, 78 N. J. Eq. Oxford, 71 S. E. 883, 136 Ga. 580; 189. Smith v. Keller, 98 N. E. 214, 205 N. The inference of fraud from tiie Y. 39; Dudderar v. Dudderar, 82 A. facts is for the jury, and not a con- 453, 116 Md. 605 (draft of a former elusion of law to be drawn by the unexecuted will), court, llurah v. Knox, 87 N. C. 483. 292 CHAP. X.] ERROE, FRAUD, AND UNDUE INFLUENCE. § 242 tlia-t the testator was of that peculiar mental structure, was pos- sessed of those intrinsic or accidental qualities, was subject to such passion or prejudice, of such perverse or feeble wil], or so mentally infirm in any respect, as to render it probable that the efforts used were successful in producing in the will offered the combined re- sult The purpose of the evidence in this direction is to establish that liability of the testator to be easily affected by fraud or undue influence which oonstitutes the necessary counterpart and comple- ment of the other facts io be proved. Without such proof, the is- sue can seldom, if ever, be maintained." ^ Experience shows that direct proof of undue influence or fraud is rarely attainable ; but inference from circumstances must determine it; at the same time, facts and circumstances adduced ought to lead, justly and reason- ably, to the unfavorable conclusion, in order to defeat the will.* Undue influence in contests of this kind is sufficiently established by a preponderance of the evidence adduced;^ and the jury or trier of the case may draw inferences freely from facts in conflict- ing testimony.^ 3. Colt, J., in Shailer v. Bumstead, 99 Mass. 121. See also Dietrick v. Dietrick, 5 S. & R. 207; Potter v. Baldwin, 133 Mass. 427; 17 W. Va. 683; 35 N. J. Eq. 120, 446, 63 A. 1048, 103 Md. 416; Piper v. Andricks, 71 N. E. 18, 209 111. 564; Beemer v. Beemer, 96 N. E. 1058, 252 111. 452; Smith V. Smith, 56 So. 949, (Ala.) (1911). 4. See Saunders's Appeal, 54 Conn. 108. " Undue influence is generally proved by a number of facts, each one of which standing alone may be of little weight, but taken collectively may satisfy a rational mind of its existence." Stone, J., in Moore v. McDonald, 68 Md. 321. 339, 12 A. 117. And it is further observed in this sensible opinion, that if the facts proved are such that a rational mind might in reason and fairness draw from them the conclusion sought, it is the duty of the court (where ap- peal is made from the judge of prob- ate who tries in the first instance) to submit the case to the jury; their province being to decide the ex- istence of undue influence at the time of the execution of a will, like any other question of fact. lb. Undue influence which invalidates is a species of constructive fraud not to be defined by any fixed words. Smith V. Henline, 174 111. 184, 51 N. E. 227; 69 Ala. 555. 5. Bush V. Delano, 113 Mich. 321, 71 N. W. 628. 6. Caven v. Agnew, 186 Penn. St. 314, 40 A. 480; Smith v. Smith, 67 Vt. 443, 32 A. 255; Walls v. Walls, 99 S. W. 969, 39 Ky. Law 948; Sibley V. Morse, 109 N. W. 858, 146 Mich. 463; Bradford v. Blossom, 88 S. W. 293 § 243 LAW OF WILLS. [pAltT II. § 243. The Same Subject : Declarations of the Alleged Testator. Many decisions, not altogether liarmoniou'S, relate to the testa- tor's declarations in issues of the present kind. The gemi^ral rule is, that a testator's previous declarations are admissible within a liberal range for the purpose of throwing light upon his mental condition, his exposure to oonsitraint or fraud, and the surrounding circumstances of the testamentary act. As, for instance, his state- ments that he disliked or feared the person whose coercion is im- puted in the case, that he was not master in his own house, that he had to submit in his course of life, or else there would be trouble, — and the like.'' So, too, in connection with either proof of fraud or undue influence, are one's declarations made at different times, and at distant inteirvals, down to the making of the will, which dis- close a loaig-cherished purpose of disposing of his estate quite dif- ferently from what the will provides as p'ropounded ; ^ or sitate- ments showing dislike or affection for the natural objects of his bounty or for those favored in the alleged will.^ A testator's pre- vious declarations are likewise admissible in support of the will which is impeached, as showing a long-cherished purpose on his part to make a testamentary disposition like tbat in controversy, or in other respects rebutting the idea of fraud or undue influence.^ But declarations of vague import or unsupported by other perti- nent proof of facts may well be ruled out.^ 721, 190 Mo. 110; Brackey V. Brackey, 112; Waterman v. Whitney, 1 Kern. 130 N. W. 370, 151 Iowa 99; Ever- 157; Robinson v. Adams, 62 Me. 369, ett's Will, 68 S. E. 924, 153 N. C. 83. 16 Am. Rep. 473; Beaubien v. Cicotte, 7. Beaubien v. Cicotte, 12 Mich. 12 Mich. 459; Whitman v. Morey, 63 459. Cf. Bunyard v. McElroy, 21 N. H. 448; 64 N. H. 573, 15 A. 219. Ala. 311. 1. Roberts v. Trawick, 17 Ala. 55, 8. Wooton V. Redd, 12 Gratt. 196; 52 Am. Dec. 164; O'Neil v. Murray, 4 Denison's Appeal, 29 Conn. 399; Bradf. (N. Y.) 311; Gardner v. Neel V. Potter, 40 Penn. St. 483; Dye Frieze, 16 R. I. 640, 19 A. 113; Harp V. Youn?, 55 Iowa, 433, 7 N. W. 678; v. Parr, 168 111. 459, 48 N. E. 113; •Moore v. McDonald, 68 Md. 321, 12 Kaufman v. Caughman. 49 S. C. 159, A. 117; 106 Iowa, 203, 76 N. W. 717, 61 Am. St. Rep. 808, 27 S. E. 16; 180 68 Am. St. Rep. 293. ill. 300, 54 N. E. 321. 9. Sliallcross v. Palmer, 16 Q. B. 2. 184 Penn. St. 41, 39 A. 46. 751; Shailer v, Bumstcad, 90 Mass. 294 CHAP. X.J EKKOK, FRAUD, AND UNDUE INFLUENCE. § 243 A testatoir's declaraitioiis and acts after tlie execution of a will may be alleged to show liis knowledge of the testamentary character of the dispo'sition and to dispel any possible claim of mistake or imposition.' By weighit of authority a testator's subsequent declara/tions are admissible when they denote the mental fact at the date of execu- tion which is to be p'roved, or are close enough in point of time to make part of tlie res gestae; or where they repel the favorable in- ference naturally arising from the fact that an ambulatory instru- ment remains unrevoked after the alleged fraud or coercion has ceased to operate; o>r where they tend to show th.at the state of mind, or the feelings, opinions, peculiarities of character, existing when the alleged will was made, continued to operate, so as all the more to discredit the instrument set up as appa^rently tlie formal and deliberate expression of his will at the period in question.* Declarations made long after the will are not, it is true, permitted by the best authorities to show by way of narrative or independ- ently as facts, that fraud O'r undue influence was^ p'ractised at the former and essential date of execution ; ^ for this would be to con- 3. Nelson's Will, 141 N. Y. 152, 36 v. Hayden, 95 Mich. 352, 35 Am. St. N. E. 3; 98 Ga. 552, 25 S. E. 590. Rep. 566; Weber v. Strobel, 139 S. See Shaul's Will, 143 N. Y. S. 433. W. 188, 336 Mo. 649; Stewart v. 4. Comstoclc V. Hadlyme, 8 Conn. Stewart, 71 S. E. 308, 155 N. C. 341; 254, 20 Am. Dec. 100; Waterman v. Ridgely v. Brand, 138 S. W. 269, 144 Whitney, 1 Kern. 157; Howell v. Ky. 433. Barden, 3 Dev. L. 442; Richardson v. 5. Smith v. Fenner, 1 Gall. 170; Richardson, 35 Vt. 238; Griffith v. Runkle v. Gates, 11 Ind. 95; Jackson DinenderflFer, 50 Md. 466; Potter v. v. KnifTen, 2 Johns. 31, 3 Am. Dec. Baldwin, 133 Mass. 427; Stephenson 390; Thompson v. Updegraff, 3 W. V. Stephenson, 62 Iowa, 163, 17 N. W. Va. 629; Vance v. Vance, 74 Ind. 370; 456; Robinson v. Hutchinson, 26 Vt. La Bau v. Vanderbilt, 3 Redf. 384; 38, 60 Am. Dec. 698; Roberts v. Bid- Vanvalkenberg v. Vanvalkenberg, 90 well, 98 N. W. 1000, 136 Mich. 191; Ind. 433; 36 N. J. Eq. 259, 603; 4 Robinson v. Robinson, 53 A. 253. 203 Dutch. 274; Merriman's Appeal, 108 Penn. 400; Reynolds v. Adams, 90 Mich. 454, 66 N. W. 372; Underwood 11!. 134, 32 Am. Rep. 15; 66 Iowa v. Tliurman, 36 S. E. 788, 111 Ga. 754, 21 N. W. 570; Bryant v. Pierce, 325. 95 Wis. 331, 70 N. W. 297; Haines 295 § 243 LAW OF WILLS. [PAKT II. tradict by hearsay evidence after one's death, what the solemn in- strument in writing, unrevoked and witnessed, declares was his in- tention while living ; and it is scarcely possible that a foundation for impeaching ithe will, should it deserve at all to fail, cannot be better laid than upon such weak and treacherous testimony.® Such declarations are not, however, to be rejected, if admissible on other grounds like those we have indicated, and where a foundation has already been laid for bringing them in to corroborate better proof bearing upon the main issue; and it remains for (the presiding judge carefully to point out how far these deiclarations must be rejected or received as evidence of the jury.'^ Declarations made at any distance of time after the will was executed are all the less pertinent to show fraud and undue influence, where the will itself has remained in the testator's possession and control uncancelled ; * and mere declarations, whether previous or subsequent to the will, amount of themselves to very little in the face of a prima facie showing that the testtator was a thoroughly competent person, en- joying normal health, and under no apparent coercion or stress of error when he executed the instrument,'* especially if he looked per- sonally after the details of drawing and executing his own v^dll.^ 6. Obtained, as such hearsay dec- mind and feelings, are not competent larations may be, by deception or evidence of the facts stated therein undue influence, and always liable to to prove fraud or undue influence, the infirmities of human recollection, Marx v. McGlynn, 88 N. Y. 357. De- " their admission would go far to clarations of the testator's feelings destroy tlie security which it is es- when admitted may be shown to have sential to preserve." Colt, J., in no foundation in fact. Canada's Ap- Shailer v. Bumstead, 99 Mass. 122. peal, 47 Conn. 450. And evidence of 7. Shailer v. Bumstead, 99 Mass. declarations expressing only dissatis- 122. and authorities cited. And see faction with one's will and not tend- Johnson v. Lyford, L. R. 1 P. & D. ing to show undue influence or fraud 546. is irrelevant. Ryman v. Cruwfoid, 8. Smith V. Fenner, 1 r4all. 170; 86 Ind. 262; 28 Minn. 9; Robinson v. Runkle v. Gates, 11 Ind. 95. Stuart, 73 Tex. 267, 11 S. W. 275. 9. See Hoshauer v. Hoshauer, 26 1. Pemberton, Re, 40 N. J. Eq. 520, Penn. St. 404; Booth v. Kitchen, 3 Declarations apparently free and vol- Redf. (N. Y.) 52. Diaries or letters untary, to the efl'ect of sustaining the written by a testator, thou^li ad- will as what he had desired, are sonie- mi.ssible to show tlie condition of his times adniittod. 98 Gu. 552. 29G CHAP, X.] EEROR, FRAUD, AND UNDUE INFLUENCE. § 244 In short, a testator's declarations, whether made before or after the execution of the will, aside from the time of execution itself, are admisfsible chiefly to show his mental condition or the real state of his affections ; and they are received, ra^ther as his own external manifestations than as evidence of the truth or untruth of facts relative to tlie exertion of undue influence upon him ; they may corroborate, but the issue calls for its own proof from the living.^ And the more remote such declarations from the time when the "will was executed, the less becomes their value.^ Decla- rations impertinent to the issue, moreover^ are not admissible at all.'* There should be, on the whole, independent testimony indi- cating undue influence before the decedent's declarations are con- sidered ; and then they are chiefly pertinent to show a condition of mind susceptible to the sinister influence, and a testamentary act corresponding.^ § 244. Declarations, Admissions, etc., of Legatees or Parties in Interest. As in contests which involve a testator's mental capacity,^ so is it, according to the best authorities, with issues of fraud and un- due influence, that the declaration or conduct of a legatee or party 2. Bush V. Bush, 87 Mo. 480; Mid- Estate, 105 N. W. 110, 128 Iowa 621; dlewitch v. Williams, 45 N. J. Eq. Smith v. Keller, 98 N. E. 214, 205 726, 17 A. 826; Herster v. Herster, N. Y. 39; Norton v. Clark, 97 N. E. 122 Penn. St. 239, 16 A. 342, 9 Am. 1079, 253 111. 557; Ditton v. Hort, St. Rep. 39; 153 Mass. 487, 26 N. E. 93 N. E. 961, 175 Ind. 181 (written 1114; Eastis V. Montgomery, 93 Ala. declarations). 293, 9 So. 311; Crocker v. Chase, 57 3. Smith v. Keller, 98 N. E. 214, Vt. 413, 68 A. 756; 73 P. 1081, 140 205 N. Y. 39 (six to ten years after Cal. 390; 97 N. W. 1108, 122 Iowa, execution too remote). 246; Hobson v. Moorman, 90 S. W. 4. 134 U. S. 47, 32 L. Ed. 805, 33 152, 115 Tenn. 73, 3 L. R. A. (N. S.) S. W. 819. As to conservations, see 837; Linebarger v. Linebarger. 55 S. Potter's Will, 55 N. E. 387, 161 N. E. 709, 143 N. C. 229; Miller's Es- Y. 84. tate, 88 P. 338, 31 Utah 415 (conduct 5. Kirkpatrick v. Jenkins, 96 of party as res gestae) ; Cheney v. Tenn. 85. C^oldy, 80 N. E. 289, 225 111. 394, 6. Supra, § 195. 116 Am. St. Rep. 145; Townsend's 297 § 24:5 LAW OF WILLS. [pART II. in interest, is not to be shown in evidence by way of an admission against interest, so long as other parties who would be affected thereby are not jointly interested nor in privity with them.'' The declarations against their interest of legatees who are not parties to the proceedings in court are in general inadmissible.^ But the admissions and decla^rations of a sole legatee may be thus proved against his own interest ; " and courts have been disposed to admit such evidence for the purpose of setting aside, if possible, the legacy of any one who has thus confessed himself a party to the fraud- ulen, procurement of a will.^ § 245. Suspicious Circumstance that the Will is drawn by the Party deriving a Benefit. In issues of fraud or undue influence, the circumstance that a party who derives under the will a disproportionate benefit or a benefit to which he had no natural claim is the party who drew it lends disfavor to the instrument, and may turn the scale against its admission to probate. The universal maxim of law treats one who writes himself the heir as lending suspicion tO' the writing. The civil law made little of setting aside any v^ll which was writ- ten or prepared by the party deriving the essential l>enefit under it.^ Our common jurisdiction does not adopt this rule in its full stringency; nevertheless a sense of propriety and delicacy clearly suggests that one who is to be directly benefited by a will to tha considerable detriment of others in legal interest, should refrain from conducting the execution of it ; and it is well settled that any 7. Shailer v. Bumstead, 99 Mass. 552; Blakely v. Blakely, 33 Ala. 611; 129, and cases cited. Shailer v. Bumstead, 99 Mass. 129, by 8. 99 Mass. 129; Carpenter v. Colt, J.; Dotts v. Fetzer, 9 Penn. St. Hatcli, 64 N. H. 573, 15 A. 219. 88; Jackson v. Jackson, 32 Ga. 325. 9. Ware v. Ware, 8 Greenl. 42; The declarations of a legatee tend- Nus.sear v. Arnold, 13 S. & R. 323; ing to show that she exercised undue Fairchild v. Bascomb, 35 Vt. 398. influence are not admissible where And see Bush v. Bush, 80 Mo. 480; her liusband is executor and a Saunders's Appeal, 54 Conn. 154, 6 party to the suit. Crocker v. Chase, A. 193; 54 N. Y. S. 77. 57 Vt. 413, 68 A. 756. 1. See Morris v. Stokes, 21 Geo. 298 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 245 will, prej^arcd or procured by one thus interested in its provisions, imposes an additional burden, if assailed, upon those who seek to establish it; for the court, or the trier of the ease, regards that circumstance witJi suspicion and jealousy, and desires 'to be satis- fied that the paper which is propounded expresses the true will of the deceased and not that of the interested party.^ Suspicion gains additional force if it ap'pears that the testator was feeble-minded and liable to coercion ; or if such beneficiary actively directed the execution of the will.'* But on due explanation given, as all the evidence shows, and the suspicion removed, the will stands, no matter who prepared it.^ In sJiort, the fact that the will was drawn by a favored legatee, while it calls for suspicious scrutiny of the circumstances, does not of itself invalidate the will, but the triers of the case weigh all the proof. The mere presence of a beneficiaiy under a will at its execution is not improper, suspicious or objectionable, where no proof appears thait he actively instigated the business.^ And our later cases appear to rule that wherever the testator's drafts- man or manager of the execution may be thought worthy of some generous token, undue influence and fraud are not to be presumed 2. 1 Redf, Wills, 158, 159; 1 Wms. 4. Smith v. Henline, 174 111. 184. Exrs. 351. 51 N. E. 227. 3. Croft V. Day, 1 Curt. 784 ; Barry 5. Rusling v. Rusling, 36 N. J. Eq. V. Butlin, 1 Curt. 637; s. c, 2 Moore 603; ib. 269; 4 Redf. (N. Y.) 441; P. C. 480; Paske v. Ollat. 2 PhiUim. 45 N. J. Eq. 173, 16 A. 690. A court 323; Coffin v. Coffin, 23 N Y. 9, 80 need not instruct a jury that the fact Am. Dec. 235; Delaficld v. Paris'). 25 that the draftsman is largely bene- N. Y. 9; 1 Redf. (N. Y.) 1; Duffield fited under the will is always a sus- V. Morris, 2 Harring. 375. 76 Am. picious circumstance. 64 Md. 138, 21 Dee. 127; Hughes v. Meredith, 24 Gi. A. 273. And see Carpenter v. Hatch, 325; Downey v. Murphey, 1 Dev. & 64 N. H. 573, 15 A. 219; 67 N. H. Bat. 82; Gerrish v. Nason, 22 Me. 520, 42 A. 47. 438, 39 Am. Dec. 589; Cuthbertson's 6. Ethridge v. Bennett, 9 Houst. Appeal, 97 Penn. St. 163; Patton v. 295. In Bennett v. Bennett, 50 N. J. Allison, 7 Humph. 320; England v. Eq. 439, 26 A. 573, the draftsman Fawbush, 68 N. E. 526. 204 111. 384; was a principal legatee and the will Adair v. Adair, 30 Ga. 102; Cheat- was not a just one; and yet the will ham V. Hatcher, 30 Gratt. 56, 32 Am. was sustained because evidence of Rep. 659. improper influence was not shown. 29^ § 245 LAW OF WILLS. [pART II. from tlie fact thait the will gives liim a legacy or executoirship ac- cordingly.'' The extent of his benefit as compared with that of natural objects of one's bounty is a matter of some consequence. Nor is the testamentai*y act void, though the person who makes the will in his ovra. favor is the agent and attorney of the testator ; and yet suspicion against the will becomes all the stronger in pro- portion as the testator was weak-minded, igTiorant, or feeble, and must have confided in his draftsman's superior skill and experi- ence.^ It is by no means uncommon in our States at this day, though a practice liable to abuse, for professional advisers to draw up wills which confer vipon themselves all the influence and emolu- ment of executor and trustee. Should the adviser write himself down, besides, for a legacy unreasonably great, being no natural claimant upon the testator's boimty, the will ought to be looked upon with no little suspicion.^ And the conduct of a professional man has sometimes avoided the will prepared by him on the ground that he allowed the testator to remain ignorant of legal conscf- quences, where the effect was to influence the instrument in his own favor or so as artfully to divert the disposition from that intended.^ 7. Post V. Mason, 91 N. Y. 539, 43 9. But no presumption of fraud or Am. Rep. 689; Carter v. Dixon, 69 undue influence arises from tlie fact Ga. 82, 111 N. Y. 239, 18 N. E. 874; that the legal adviser and draftsman Trubey v. Richardson. 79 N. E. 592, receives a legacy not unreasonably 224 111. 136. Cf. Yardlcy v. Cuth- great. Post v. Mason, 91 N. Y. 539. bertson, 108 Penn. St. 395, 56 Am. But Cf. Cramer v. Crumbaugh, 3 Md. Rep. 231. And see McEnroe v. Mc- 491, where the draftsman wrote him- Enroe, 51 A. 327, 201 Penn. 477 self executor, and with his son, both (drew will at request and absent from strangers in blood, took the chief part execution) ; Kindberg's Will, 100 N, of the estate. See also Carter v. E. 789, 207 N. Y. 220 (residuary lega- Dixon, 69 Ga. 82; Garrett v. Hoflin, tee drew the will). Cf. Cash v. Den- 98 Ala. 615, 13 So. 326, 39 Am. St. nis, 139 N. W. 920 (physician and Rep. 89; Kilborn's Estate, 120 P. patient). 762, 158 Cal. 593 (merely made ex- 8. 1 Wms. Exrs. 112; 4 Hagg. 391; ecutor and trustee). 3 Hagg. 587; St. Leger's Appeal, 34 1. Walker v. Smitli, 29 Bcav. 394; Conn. 434, 91 Am. Dec. 742; 174 Penn. Hindson v. Weatherill, 5 De G. M. & St. 373, 34 A. 603; 56 N. J. Eq. 766, G. 301; Lyon v. Dadn, 111 Mich. 340, 41 A. 422. 09 N. W. 654. 300 CHAP. X.] EEROK, FRAUD, AyiD UNDUE INFLUENCE. § 246 § 246. Confidential Relation in General implies Opportunities which must not be abused. In general, the oxistenoe of a confidential relation, as between guardian and ward, attorney and client, physician and patient, or even religious adviser and layman, is of a nature which implies peculiar opportunities outside the family relation, for influencing In Barry v. Butlin, 1 Curt. 637 (1838), Baron Parke announces in precise terms the rule which required the court's suspicion to be overcome, before probate is granted of a will which is written or prepared by the party who takes a benefit under it. But he further disclaims the notion, that at our law there is any partieu- lar measure of unfavorable presump- tion, in such cases, which the pro- pounder of the will must overcome, or any particular species of proof to be applied for that purpose, by way of additional evidence that the testator was not imposed upon. And he presses (what in sucli cases ought never to be left out of view) the ex- tent, the proportion of the benefit which the party thus laid under sus- picion has essentially derived under such a will. For instance, a man of immense fortune might bestow a certain sum by way of legacy upon his confidential adviser, without raising any serious suspicion to be overcome by special proof that tlie testator knew what he was about and acted freely; while a legacy of the same amount wliich would absorb the greater part of a moderate estate, to the sacrifice of the testator's im- mediate relations and their rights, would be viewed with far greater jealousy. Various other considera- tions, we may add, occur in the same connection; whether, for instance, this fact stands by itself or tends, with other facts, to establish fraud or undue influence; whetlifr the draftsman had a natural claim; the character and situation of the par- ties; the harmony of the will with the testator's known intentions; and so on. To conclude in Baron Parke's own words, this drawing or prepar- ing of the will amounts in no case to more than " a circumstance of sus- picion, demanding the vigilant care and circumspection of the court in investigating the case, nnl calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased." See also Coffin v. Coffin, 23 N. Y. 9. 80 Am. Dec. 235, where the draftsman was also one of the nearest relations of the testator. Sinister conduct attending the exe- cution of the will, as shown in keep- ing those away who were adversely interested, taking exclusive custody of the instrument after it was signed, etc., bear unfavorably against a draftsman. Hollingsworth's Will, 58 Iowa 526, 12 N. W. 584; Drake's Appeal, 45 Conn. 9. So does proof of the testator's mental weakness or liability to imposition. Cuthbert- son's Appeal, 97 Penn. St. 163; Dale v. Dale, 38 N. J. Eq. 274. Or that 301 246 LAW OF WILLS. [PAKT II. duly or unduly the making of a will contrary to the natural dis- position of blood or marriage. Such opportunities must not bo abused ; and whenever a will appears to have been procured through the zealouB inteiwention of one occupying this favored position, to his own especial advantage, and to the prejudice of natural objects of one's bounty, and especially where the relation is of external origin as respects the testator's family, fraud and undue influence will readily be inferred, uuless all jealous suspicion is put to rest by tlie evidence adduced to sustain it.^ At the same time such an unfavorable suspicion amounts to notliing moa'e than a presump- tion of fact, and may always be overcome by proof that a testator of suitable intelli2:ence made his will as he saw fit.' In- the draftsman made alterations of the instrument in his own favor un- der such circumstances. Yardley v. Cuthbertson, 108 Penn. St. 395, 56 Am. Rep. 231. Or that the will d^d not harmonize with the testator's general intentions. 7 Lans. 443 ; Morris v. Stokes, 21 Ga. 552. See 4 Eedf. (N. Y.) 409, 441. But secrecy maintained in m:tking or executing the will may be satis- factorily explained. § 231. And a draftsman or attorney may receive a moderate legacy from a competent testator, without raising assump- tion of unfair dealing on his part. Loder v. Whelpley, 111 N. Y. 239; Soule's Will, 1 Con. (N. Y.) 18. See unfavorable circumstances in Lyon v. Dada, 111 Mich. 340, 69 N. W. 654; Caven v. Agnew, 186 Penn. St. 314, 40 A. 480. 2. See cases cited in preceding sec- tion; Harvey v. Sullens, 46 Mo. 147, 2 Am. Rep. 491; Tyler v. Gardiner, 35 N. Y. 559; Soulo, lie, 1 Con. 18; Moore v. Spier, 80 Ala. 129; Chappell v. Trent, 90 Va. 849, 19 S. E. 314; 70 Vt. 352, 40 A. 1027; 93 N. Y. S. 364; Cowdry's Will 60 A. 141, 77 Vt. 359; 100 N. Y. S. 492; 88 P. 338, 31 Utah; 415; 226 111. 422, 80 N. E. 992; Mow- rey v. Norman, 204 Mo. 173, 103 S. W. 15; 157 S. W. 609. 250 Mo. 632. In Yardley v. Cuthbertson, 108 Penn. .St. 395, where the testator, while sick and enfeebled, cut down former legacies four-fifths in a codicil wliich gave the residue to his confidential adviser, it was held that the sus- picion of undue influence was infer- able, and required to be repelled. The will of a ward, giving all or nearly all the estate to the guardian, raises a strong suspicion of unfairness which should be repelled. Meek v. Perry, 36 Miss. 190. But this sus- picion being repelled by suitable proof, the will is sustained. Breed v. Pratt, 18 Pick. 115. 3. 1 Con. (N. Y.) 18; 46 N. J. Eq. 515, 22 A. 125. Evidence that the testator made unequal gifts among fhis ne.xt of kin during his life is ad- missible. Eastis V. Montgomery, 93 Ala. 293, 9 So. 311; 186 Penn. St. 314, 40 A. 480; § 245. 302 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 246 deed, the confidential relation that one holds may often explain, especially in a family relationship, why the testator has desired to bestow generously upon him.^ The bearings of ithis doctrine may be gathered from our previous section. Equity appears often to have so far presumed a fraud, where one holding such a confidential relation takes a gift, as, at least, to have imposed upon him the onus of disproving it. Cer- tainly no such strict rule pertains to the law of wills ; ^ and in gifts of this character the beneficiary may have been utterly ignor- ant of the giver's intentions, and stand entirely clear of personal influences upon the disposition ; while the gift itself remains rev- ocable and may only be disclosed at the donor's death, when the essential question to be answered is, what disposiition shall tako effect upon his estate, and when others in interest and not the donor himself alone, are parties to any litigation for setting the gifts by his purported disposition aside. All that can be safely said is, that the especial gift, together with the opportunity for procuring it, affords ground for suspicion ; and that for establishing the will it must be satisfacto'rily shown that the testator was of sound mind, that he clearly understood the contents of the will, and that he was at the time under no undue or improper contraint of volition, such as to destroy his own free ag-ency. The superiority attached to such an influence is its disting-uishing trait; the relation being such that the testator, especially if of weak or declining power, leans upon a guide, in whose honor he must confide, and that honor a court of equity is bound to insist upon. Yet the strength of the suspicion in each case must depend upon its own circumstances; and where it does not appear that the fiduciary drafted the will, advised as to its contents, or even knew it was to be made, there can be no imputation of fraud or undue influence so far, at least, as his connection with the testator is concerned, whatever reasons for assailing tlie will may be founded in the misconduct or confi- dential relations of others.^ 4. Lamb v. Lippincott, 115 Mich. 5. See Parfitt v. Lawless, L. R. 2 P. 611, 73 N. W. 887. D. 462. 6. Bristed v. Weeks, 5 Redf. 529. 303 246 LAW OF WILLS. [part IL The benefit thus derived by one who holds a confidential rela- tion, need not be a strictly personal one in order to excite sus- To sustain a will made in favor of the testator's religious adviser, to tlie exclusion of the natural objects of his bounty, there must be some proof besides the making of it. But if the will is shown a consistent one, and freely and intelligently made, it will be sustained. Marx v. McGlynn, 88 X Y. 357; 4 Redf. (N. Y.) 455; 6 Dem. (N. Y. ) 166. Even where a re- ligious adviser draws or actively pre- pares a will in favor of the church or charitable institution which he repre- sents, ignoring the natural heir, slight circumstances may justify a jury in inferring undue influence. lb.; 5 Mo. App. 390, Welsh, Re, 1 Redf. (N. Y.) 238. And suspicions requiring an explanation may ba raised by the facts and surrounding circumstances, even though the will in favor of a clmrch was drawn and its execution procured by vestrymen. Drake's Appeal, 45 Conn. 9. (Note tiie dissent in this case.) Cf. Adams V. Methodist Church, 96 N. E. 253, 251 111. 268 (no financial interest). Where a testator embraces spiritual- ism, and the medium or adviser alienates his affections from his fam- ily and procures a will in his own favor, it should be set aside. Thomp- son V. Hawks, 14 Fed. Rep. 902; 7 Oreg. 7. As to legacies to one's spiritual adviser, see further 88 Ala. 462, 7 So. 260. And see Conklin v. Conklin, 131 N. W. 154, 165 Micii. 571. The existence of friendly relations between the testator and his bene- ficiary does not impute undue influ- ence. Stain(tz v. Miciionor, 75 N. E. 579, 165 Ind. 372; Kilbourn's Estate, 120 P. 762, 158 Gal. 593. Nor a re- lation as housekeeper and nurse. Richardson v. Bly, 63 N. E. 2, 181 Mass. 87. Nor one's peculiar confi- dence and consultation as to favored kindred. McLaughlin's Will, 59 A. 892, 69 N. J. Eq. 379. Nor a part- nership relation. Brooks's Estate, 54 Gal. 471. No confidential adviser is to be respected unless in fact beneficial- ly interested for himself or others under the will. Birdseye, Re, 60 A. Ill, 77 Conn. 623, 104 N. W. 452, 128 Iowa 496. And participating actively, whether personally present or not, in the business of execution. McQueen v. Wilson, 31 So. 94, 131 Ala. 606; Cornell's Will, 57 N. E. 1107, 163 N. Y. 608; Folks v. Folks, 54 S. W. 837, 107 Ky. 561. See further 72 N. Y. S. 421; Robinson v. Robinson, 53 A. 253, 203 Penn. 400; 93 N. Y. S. 1065; 94 N. Y. S. 1064; Stewart v. Lyons, 47 S. E. 442, 54 VV. Va. 665; Sperl's Estate, 103 N. W. 502, 94 Minn. 421 (equity sets tlie bequest aside) ; Evert's Estate, 125 P. 1058, 163 Cal. 449 (parol trust for others made by sole beneficiary). Business manager may be shown to have been dishonest while in control of the property during the testator's life. Murphy v. Murphy, 142 S. W. 1018, 146 Ky. 396. Cf. Yess v. Yess, 99 N. E. 697, 255 111. 414. Gift under a will to one in a fidu- ciary relation is favored more tlian such gifts inter vivos. Yess v. Yess, supra. But gifts or transfers made prior to the will may be shown. Crumb's Estate, 127 N. Y. S. 269. 304 CHAP. X.] EKEOR, FRAUD, AND UNDUE INFLUENCE. § 247 picion ; ^ for undue advantages procured for those of his own house- hold, or church fellowship, for institutions or business establish- ments in which he is strongly interested, and the like, may in a broad sense be intended for his own benefit; and so, too, where, to gratify some strong dislike of his own, he gets the testator to disinlierit a blood relation. But the fairer and more disinterested the influence he exerts, the less does the confidential adviser expose himself to suspicion.^ § 247. Proof that the Testator knew the Contents of the Will. Where error, fraud, or undue influence is charged, stricter proof than usual may be needful to show not only capacity, but that the testator knew the contents of the instrument he executed. In ordi- nary cases, to be sure, the fonual execution of the will by a person who can read and write imports a knowledge of its contents.^ But where it is shown ithat the testator, being blind, illiterate, or very- feeble, could not have gained this knowledge unaided, more positive proof that he actually knew and assented is required to repel any suspicion which circumstances may have east upon the good faith of the transaction ; as, for instance, where the draftsman or party managing the execution of such a person's will takes a dispro- portionate interest under it.^ It is not necessary to prove in such As to a physician who was made sole 6 Dem. 84; Grove v. Spiker, 72 Md. legatee, see 6 Dem. 299. 300 (where a stranger went to live 7. See Welsh, Re, 1 Redf. 238; with a weak-minded woman, and soon Drake's Appeal, 45 Conn. 9; Barkley gained great dominion over her). V. Cemetery Assn., 54 S. W. 482, 153 9. Beall v. Mann, 5 Ga. 456; 20 Mo. 300. The disfavor with which a Ga. 709; Frear v. Williams, 7 Baxt. bequest from a ward to his guardian 550; Vernon v. Kirk, 36 Penn. St. is regarded extends to a bequest to 268; Pettes v. Bingham, 10 N. H. the guardian's wife. Bridwell v. 514; Downey v. Murphey, 1 Dev. & Swank, 84 Mo. 455. And see 43 N. J. B. 82; Smith v. Dolby, 4 Harring. Eq. 154, 10 A. 862. 350. 8. Tlie fact that the person largely 1. Davis v. Rogers, 1 Houst. 44; benefited lived with the testator es- Hughes v. Meredith, 24 Ga. 325, 71 tablishes a confidential relation in a Am. Dec. 127; Kelley v. Settegast, 68 sense. 116 Penn. St. 612, 11 A. 410; Tex. 13, 2 S. W. 870; 115 Penn. St. 20 305 § 248 LAW or WILLS. [part ii. cases that tlie will was read over to the testator, nor to show written instmotions from him; but it should appear that in some way its contents were correctly imparted to him and corresponded with his wishes.^ And it should be borne in mind, that where fraud or undue influence is imputed, proof of the testator's actual knowl- edge of contents and soundness of mind do not alone establish the will, but his free volition should appear besides.^ § 248. Probate in Part, where Fraud, Undue Influence, etc., op- erated in Part. It is considered by good English and American authorities, that wheire fraud or undue influence has been exercised in obtaining advantages under a will, the whole will is not necessarily vitiated, but the gifts thus wrongfully obtained may be declared invalid if separable, while the will is in other respects admitted to probate.* So, too, the wrongful alteration or insertion of a pecuniary legacy in a will, by the legatee or a stranger, is held not to avoid the will as to other bequests.^ And the same would appear to hold true where such alteration has been innocently made.® For if the fraud 32, 2 Am. St. Rep. 525, 8 A. 219; 1 Harring. 454. See as to blind tes- Lyons v. Campbell, 88 Ala. 462, 7 Sn. tators, etc., §§ 96-99, supra. 250; Wilbur v. Wilbur, 129 111. 392. 3. Yardley v. Cutlibertson, lOS See 100 N. Y. S. 422. Penn. St. 395, 56 Am. Rep. 218. 2. lb.; Barry v. Butlin, 1 Curt. 4. Allen v. M'Pherson, 1 H. L. Cas. 637; Moore V.Moore, 2 Bradf. (N. Y.) 191; 1 -Jarm 36; Welsh, Re, 1 Redf. 261; Huss's Appeal, 43 Penri. St. 73.82 (N. Y. ) 238; Trimlestown v. D'Al- Am. Dec. 551; Day v. Day, 2 Green ton. 1 Dow (N. S.) 85; Morris v. Ch. 549. Thu-s, it might be shown Stokes, 21 Geo. 552; Harrison's Ap- that the will was copied from a pre- peal, 48 Conn. 202; 54 Conn. 119, 6 vious paper whose contents the tes- A. 198. tator fully understood and approved. See as to probate, Schoul. Exrs. § Day V. Day, supra. But if it appear 85 (Vol. II.). that essential alterations or devia- 5. Smith v. Fenner, 1 Gall. 170; tions were made in the copying, fur- Morrell v. Morrell, 7 P. D. 68. ther proof is needful to show tiiat the 6. lb. • And see Whitlock v. Ward- alterations or deviations were ex- law, 7 Rich. 453; 91 Penn. St. 236; pressly understood and approved, or Wombacher v. Bnrthelme, 62 N. E. ♦•Ise that the instrument stands in 800, 194 111. 425 (fraudulent inser- its final form. Chandler v. Ferris, tion of executor's name, etc.); 306 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 249 or error tended plainly to some partial and particular result while tbe instrument as a whole embodied the separable disposition of a person of sound and disposing mind and free volition, the itestator having fully deteraiined to make his will, innocent legatees ought not to be punished indiscriminately and needlessly with those who were in the wrong. But to separate for probate tlie volition and non-volition portions of a will is no't commonly practicable; for fraud and undue iniluence are found usually to have permeated the whole disposition and even to have set the alleged testator to mak- ing it. Hence we may lay it down, that fraud or undue influence in p'rocuring one legacy or devise does not invalidate other legacies or devises which evidently proceed from the free will of a compe- tent testator, and are separable ; but if the fraud or undue influence taints inseparabl}' the entire will, though exerted by or in behalf of one legatee only, the whole disposition must fail.^ In other words, where part of a will has been introduced through fraud, or perhaps inadvertence, it may be rejected, and probate granted of the residue, if the two are severable; but not otherwise.^ -§ 249. In General, a Full Probate does not insure against a Par- tial Failure in Effect. On the other hand, a decree of the court of probate not appealed from does not absolutely conclude that all its provision's are valid in their full effect, as they appear expressed, but construction or further litigation may establish to the contrary. As if a person too young under the statute to make a will of realty, but old enough to make one of personalty, should execute a testament embracing Holmes v. Campbell, 125 P. 25, 87 itself; for this would allow fraud to Kan. 597, 41 L. E,. A. (N. S.) 1126 protect fraud. Lee v. Colston. 5 T. (special delusion as to part of will). B. Mon. 246. Cf. 19 Ohio St. 546; 7. Florey v. Florey, 24 Ala. 241; § 605. Welsh, Re, 1 Redf. (N. Y.) 238; Ba- 8. Rhodes v. Rhodes, 7 App. Gas. ker's Will, 2 Redf. 179. 192. A codicil which ought to fail is The inquiry whether the will was thus severable from a valid will and procured through fraud or undue in- prior codicils. See Ogden v Green- fluence cannot be stifled by any pro- leaf, 143 Mass. 349, 9 N. E. 745; Jiibition contained in the instrument § 234 supra. 307 § 250 LAW OF WILLS. [part II. both kinds ; ^ or where the will can be pronounced inoperative and void in parts, in consequence of the subject-matter and the char- aoter of the disposition attempted.^ If the will may take effect in any part, it is properly admitted to probate, notwithstanding some of its provisions should prove void eventually from one cause or another.^ § 250. Full or Partial Failure of Probate through Incapacity, Fraud, Error, etc. In fact, courts of probate exercise complete control over the will, in case of fraudulent insertion or alteration, or of incapacity dur- ing the execution of some specific part of the will." A word or clause in the will introduced by mistake or fraud, without the tes- tator's knowledge or approval, may, at judicial discretion, be striken out, leaving a court of construction to supply the true meaning.* A will defaced or mutilated by a testator while non compos is, if possible, to be pronounced for in its original integ- rity.^ Codicils, moreover (which are as much a part of wills as 9. Dickinson v. Hayes, 31 Oonn. 417. It was here held that the will might be contested in an ejectment suit, notwithstanding the probate. But cases of this sort can seldom arise outside the probate court, as legislation now provides. See supra, §§ 39-44, as to disability of infants. 1. Bent's Appeal, 35 Conn. 523; 38 Conn. 26. In Aumack v. .Jackson, 78 A. 749, 78 N. J. Eq. 189, effort, made in a court of equity to establish a parol constructive trust in property, was overcome by proof of undue influence exerted. See Evert's Estate, 125 P. 1058, 163 Cal. 449 (promise by sole beneficiary to distribute part among certain charities). 2. George v. George, 47 N. 11. 27. And see § 452a; Schoul. K.\rs. § 95 (Vol. II.). 3. Welsh, Re, 1 Redf. (N. Y.) 238, 248; Ogden v. Greenleaf, 143 Mass. 349, 9 N. E. 745. In case of the lim- ited legal capacity of an infant or married woman to dispose by will, a partial probate has sometimes been granted. See 1 Pick. 239; Holman v. Perry, 4 Met. 492; 156 Mass. 483, 31 N. E. 638. The instances must be rare where part of a will can be up- held and part rejected on an issue of mental incapacity. See Hildreth v. Hildreth, 156 S. W. 144, 153 Ky. 597. 4. Morreli v. Morrell, 7 P. D. 68; Duane's Goods, 2 S. & T. 590; supra, § 248; Rockwell's Appeal, 54 Conn. 119, 6 A. 193. 5. Scruby v. Fordham, 1 Add. 74; 3 Ilagg. 754; Batton v. Watson, 13 Geo. 63, 58 Am. Dec. 504. 108 CHAP. S.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 251b if actually iiLoorporated into the instrument, and draw the will down to their date), are on similar grounds rejected, leaving the will to operate without one or anotiier of them, as justice may require.® § 251. Inspection of Instrument by Jury. Where the issue of mental capacity or undue influence is raised, land a jury tries the question of fact, the antJientioation of the in- strument in probate in due form of law should he determined by the court. But the instrument in contest may be submitted for in- spection to the jury ; and there is no impropriety in allowing tbis inspection, before the evidence is given, but often ithe reverse ; since the evidence must be tested by the instrument in question.'^ The instrument oifered should of course, in such a case, be considered in connection with the other evidence adduced, and not by itself alone.^ § 251a. Mental Capacity and Undue Influence are Distinct Issues. In a controversy over the probate of an instrument as one's last will and testament, mental capacity and undue influence are dis- tinct issues, and probate may be refused on the one ground or the other.^ § 251b. Undue Influence: Subsequent Parol Assent of Testator Insufficient. If a will be invalid when actually executed, by reason of undue 6. Brounker v. Brounker, 7 Phil- 8. Vance v. Upson, 66 Tex. 476, 1 lira. 57; Sherer v. Bishop, 4 Bro. C. S. W. 179; Middlewitch v. Williams, C. 55; Billinghurst v. Vickers, 1 45 N. J. Eq. 726, 17 A. 826. Phillim. 187; 1 Wms. Exrs. 42; 1 9. See Dexter v. Codman, 148 Bradf. IN. Y.) .360; 143 Mass. 349, » Mass. 121, 19 N. E. 517, where the N. E. 745. And see Schoul. Exrs. court set aside the finding of a jury § 85 (Vol. II.). on the former ground, but sustained 7. Bees v. Stille, 38 Penn. St. 138. it on the latter. 309 § 251b LAW OF WILLS. [pART II. influence or coercion, a subsequent parol assent bj the testator, •after the sinister pressure is removed, cannot make it valid ; for there must be republication by him such as the law permits, or else a new will.^ 1. Ohaddick v. Haley, 81 Tex. 617, repel the inference that coercion or 17 S. W. 233; §§ 441-450, post. But undue influence had been exerted ef- parol act3 of the testator after fectually. See §§ 234, 239 supra, and execution, importing an assent, may cases cited. 310 PART III. FORMAL REQUISITES OF A WILL. CHAPTER I. WHAT CONSTITUTES A WILL. § 252. Wills are written or unwritten; Modern Legislation re- quires most Wills to be in Writing and duly witnessed. Having finislicd our subject of testamentary capacity, and dealt sufficiently with the person who makes a will, let us now pro- ceed to consider the testamentary insitrument itself and its essen- tial constituents. As to the general nature of a will our law sets forth two kinds : (1) the written, and (2) the oral or nuncupative. But ait the present day, the statutes both of England and the vari- ous American States, insist, that, with a few stated exceptions, all wills, whether relating to real or personal property, or to both, shall be expressed in writing, and moreover that this written instrument shall be formally executed in presence of a stated number of wit- nesses. The effect of such legislation is to abolish much of the old learning which pertains to the subject, and leave our testament- ary law to shape itself in a modern and more precise mould. Even so recent a writer as Blaekstone ceases to be a standard authority ; for, while conceding that the Statute of Frauds, 29 Car. II. c. 3, has laid nimcupative or unwritten wills under many restrictions, he draws the line boldly beitween devises of real estate and wills of personal property, as constituting dispositions of quite a differ- ent nature; and as to the latter kind, lays it down that they need no witnesses, nor even the testator's own signature, if only the tes- tator be shown to have written it oir caused it to be written.^ This unquestionably was English law when Blaekstone discoursed ; but what that eminent expounder pointed out as the safer and more 1. 2 Bl. Com. 501, 503. 311 § 253 LAW OF WILLS. [PAKT III. prudent way, and indeed the method wliicii in Bracton's early .time borrowed a sanction from Roman jurisprudence, namely, tliat the will be signed [or sealed] by the testator, and published in the presence of witnesses,^ has, since 1838, become, for real and per- sonal pix)perty alike, the imperative rule in England ; ^ while in this country, where the feudal system never found a chance to take root, local experience brought various local legislatures severally to the same discreet and harmonizing policy. 29 Car. II. put the first strong curb in both countries upon frauds and perjuries in wills of personal property ; and from that landmark of legislation the sturdy sense of both England and most American States worked independently towards the more radical reform, here embodied in various local enactments differing somewhat in general p^rinciple, but there in the statute of 1 Vict. c. 26, passed in 1837, and fa- miliarly styled the Statute of Wills.* § 253. Real and Personal Property now treated alike; but not so formerly. While the former differences prevailed in point of formality, which the Statute of Frauds did not pretend to overcome, it would often happen that a will which sought to dispose of both real and personal property would take effect as to the latter, but fail as to the former for insufficiency in signing, sealing, or witnessing. But by Stat. 1 Vict. c. 26, the same formalities concerning execution and attestation (but with two instead of three witnesses) are pre^ scribed for property of every description ; and upon all wills made in English jurisdiction later than 18'37 does the new rule operate.^ In this country the prevailing policy at this day makes no dis- tinction of fonnalities between the different kinds of property; 2. 2 Bl. Com. 502. kind of testamentary act taking effect 3. 1 Wms. Exrs. Preface; 2 Jann. from the mind of the testator and Wills, Appendix. manifested by an instrument in writ- 4. Se« supra, §§ 14-16. ing. Bayley v. Bailey, 5 Cush. 245. Tlie term "will" in our modern 5. Sec preface to 1 Wms. Exrs.; Z. leiMslation has a broad scope, and Jarm. W^ills, Appendix, may usually be said to include every 312 CHAP. I.] WHAT CONSTITUTES A WILL. § 253 but tliie will, whatever the description of property to which it re- lates (and property real, personal, or mixed, are in these days usually embraced together), requires the same mode of subscription and attestation. Yet there appear to be a very few States of this Union still, where wills of real estate must be executed and attested with formalities less indispensable for disposing of personalty.^ 6. The legislation of most of our American States on this subject was based upon the English Statute of Frauds, insisting that three (or at least two) witnesses shall subscribe, and that the will of real estate itself shall be in writing and signed by the testator. From this starting point of a devise, legislation and practice tended to the requirement that wills of personal property should be in writing and similarly executed and attested; and at length the local law has reached a general and uniform system. Wills must now be written and attested by either two or three witnesses, as the legislature may have preferred, but with the same number for both real and personal property. Many States model their testament- ary law after the Massachusetts statute, which dates back to 1836, and requires wills both of real and personal estate to be in writing and signed by the testator, or by some person in his presence, and by his express direction, and attested and soibscribed in his presence by three or more competent witnesses. In this State the English Statute of Fraud? was reenacted in 1783; and the ex- tension to personal property ante- dates by a year the English enact- ment of Victoria. Various States, again, have cop'ed the New York statute, whose verbal expression is quite different, and which requires, like the new English statute of Victoria, two instead of three witnesses. See McElwaine, Re, 18 N. J. Eq. 499. There are others of the original States, such as Penn- sylvania and Virginia, whose legis- lation on the subject does not re- semble that of either Massachusetts or New York. See Hegarty's Ap- peal, 75 Penn. St, 503. In Pennsyl- vania, a subscription by witnesses ia in many instances dispensed with. § 256, post. The laws of South Carolina for- merly required three witnesses to a will of real estate only; but the same formality is now extended to wills of personalty. On the other hand, in Mississippi, wills, if not wholly writ- ten out by the testator, require the attestation of three witnesses for real estate, and only one for personalty. In Tennessee, the code discriminates. Davis v. Davis, 6 Lea, 543. See the local statutes referred to; also 1 Jarm Wills, 77, Am. Ed. ; holograph wills, post. When Chancellor Kent wrote his Commentaries, wills with a formal execution by the testator and witnesses were scarcely required in the United States except for devising real estate. See 4 Kent Com. 505. The civil code of Louisiana embod- ied a system altogether unique, which other States do not adopt. All wills. § 255 LAW OF WILLS. [pART IIL § 254. But American Statutes relating to Wills are of Local Origin. But here let us remark, what never should be forgotten, that our various American statutes relating to wills are of local and inde- pendent origin ; and (though their strong tendency is to harmonize in general essentials, they always differed and must continue to differ in particulars as well as mode of expression ; and that while the local disinclination to change such statutes is founded in obvi- ous reasons, every radical change in State legislation must be held to operate by its local date of enactment. All this ser\'es as a caution preliminary to discussing the formal requisites of a testament ; and to add to the confusion of precedents we must observe further, that the testamen/tary law of continental Europe has influenced various States at the South-west, colonized by French and Spanish settlers, — Mississippi and Louisiana, for instance, — in favor of holographs and other peculiar modes of tes- tamentary disposition with which the pure Anglo-Saxon stock was little familiar. § 255. Holograph Wills; how far recognized by Legislation. Under statutes like those of England, Massachusetts, and New York at the present day, and, indeed, by the policy which now prevails throughout England and most parts of the United S/tates, holograph wills, or those written out by the testator's own hand, stand on no privileged footing, but require to be attested like any other testaments.'^ Of such wills of chattels, to be sure, it was foT- are here divided into three leading Mich. Law Review 486, Sidney T. classes: (1) nuncupative or open Miller (1914). will.H (which have acquired a peculiar 7. As to the Scotch law favoring a signification in Louisiana practice) ; holograph letter, when witnessed, see (2) mystic or sealed wills; (3) olo- Halford v. Halford (1897), P. 36. graphic (or holograph) wills. Tiie And see Whyte v Pollock, 7 App. details of execution in each instance Cas, 400; Turell's Will, 59 N. E. 910, are set forth minutely. See La. Rev. 166 N. Y. 330 (holograph wills not Civ. Code, § 1567 et seq. exceptional in solemnities of execu- For notes of interesting English and tion). American wills in history, see 12 314 ciiAr. I.] WHAT CONSTITUTES A WILL. 255 merly held that if the name of the testator was writte-n by himself in any part of the instrument, his final signature at the end might well be dispensed with ; * and it must ever be taken ithat writing one's own will affords the strongest proof of authenticity and a deliberate purpose ; yet, whoever writes out the will, the same necessity exists at the present day, for a formal signature, and a specified number of subscribing witnesses. But in a few of the States holograph wills are expressly recog- nized, following usually the Louisiana civil code on this subject,^ but in some instances originating in the old English colonial law. The holograph will, under such statutes, dispenses with subscrib- ing witnesses and the usual proof of a formal execution ; but these codes require it to be entirely written, dated, and signed, by the testaitor's own hand.^ This handwriting being proved, the will be- comes legally established.^ The Tennessee and North Carolina 8. Griffin v. Griffin, 4 Ves. 197 n.; Coles V. Trecothick, 9 Ves. 249; 3 Lev. 1; 3 Bl. Com. 501; Gilb. 260. "1 speak not here of devises of lands, which are quite of a different nature, being conveyances by statute, un- known to the feudal or common law, and not under the same jurisdiction as personal testaments ; but a testa- ment of chattels, written in the tes- tator's own hand, tliougli it has neither his name nor seal to it, nor witnesses present at its publication, is good, provided sufficient proof can be had that it is his handwriting." 2 Bl. Com. 501. Though written in another man's hand, and never signed by the testator, it might be proved to be according to his instruc- tions and approved by him; but such establishment of a will was. of course, more difficult. See ib. And see Zerega v. Percival, 46 La. Ann. 590. 9. La. Civ. Code, arts. 1581, 1588. 1. Ib. But cf. Regan v. Stanley, 11 Lea, 316; Myrick Prob. (Cal.) 5. It is sufficient compliance with the Louisiana code, that tlie holograph will bears date in a certain month and year without naming the day. Gaines v. Lizardi, 3 Woods C. Ct. 77, 66 P. 96. Expressing a legacy or a date in figures is a sufficient writing out. 49 La. Ann. 107, 21 So. 191, 62, Am. St. Rep. 642; Chevallier's Es- tate, 113 P. 130, 159 Cal. 151. A mere caption " my will," etc., in another handwriting is immaterial, 36 So. 539, 83 Miss. 793. Nor need the place of execution be stated. Stead V. Curtis, 191 F. 529. But as in other wills the subject of the in- tended gift and the subject-matter should be mentioned, described or identified therein, for the court will not supply a palpable omission. Dreyer v. Reisman, 96 N. E. 90, 202 N. Y. 476: § 584 post. 2. 13 S. & M. 406; 11 Humph. 377, 315 255a LAW OF WILLS. [part III. codes guard such a will with still greater caution in some respects ; the writing musit come from unsuspected custody for safe-keeping or be found among the testator's valuable papers, in order to be thus privileged.^ Such statutes are usually mandatory as to the formality prescribed, so far as the local jurisdiction is concerned.^* § 255a. Will drawn up by another. One's will is frequently drawn up by another under the testa- tor's oral or written instructions. Whenever in such a case, the language employed by the scrivener faithfully embodies the in- structions and expresses the testator's intent, a variation from lateral dictation is immaterial.^ And even an honest mistake of expression by the scrivener may bind the estate disposed of, where the will afterwards became duly executed, as the testator was un- derstood to intend it.^ Generally speaking, where neither fraud nor undue influence affects the transaction, one who prepares another's will may induce him to accept changes, whether in form or substance, so that the will as actually executed by a capable 465; Davis v. Williams, 57 Miss. 843. If a printed form is filled up by the testator, this is not a holograph will. Rand's Estate, 61 Cal. 468, 44 Am. Rep. 555. See Richardson's Estate, 94 Cal. 63, 29 P. 484, where a letter of inquiry was held not testamentary. Formal subscription of the testator's name at the end of such a will is un- necessary, if the name is written else- where. 112 Cal. 513, 44 P. 1028. For a holographic will, inntificial in its expression, but neveitheless sustained as a devise of land, see Als- ton V. Davis, 118 N. C. 202. 3. Tate v. Tate, 11 Humph. 465; 91 N. C. 26; Bryan v. Barnard, 90 S. W. 858, 115 Tenn. 260, 112 Am. St. Rep. 822; Jenkins's Will, 72 S. E. 1072, 157 N. C. 429; 61 So. 685, 132 La. 606. Holograph wills are favond in the wills acts of Kentucky, Tennessee, Mississippi, California, and Louis- iana. So, too, as it appears, by the codes of Arkansas, North Carolina, Texas, Virginia and West Virginia. The Arkansas statute requires a holo- graph will to be proved by three dis- interested witnesses, swearing to their opinion, though no subscribing witness is needed. See also 34 Fed. 82; Stimson's Am. Stat. Law, § 2645. No such holographic will can bar a will in the ordinary form. 3a. Jenkins's Will, ib. 4. See 46 La. Ann. 155, 1412, 15 So. 1S7, 16 So. 389, where a notary wrote out the will under the code, at the dictation of the testator before witnesses. 5. Chilcott's Goods, (1S97) P. 223; Collins V. Elstone, (1893) P. 1. ;iG CHAP. I.] WHAT CONSTITUTES A WILL. § 256 disposer^ becomes by adoption, his own will, and the mind of the scrivener is the mind of tlie testator himself.'' § 256. Other Statute Peculiarities as to Form, Signature, and Attestation. In other respects a few American codes contain peculiar pro- visions as to the form, signature, and attestation of wills. Thus the Pennsylvania statute appears to have long dispensed with for- mal attestaition, even in a devise of lands, provided the authenticity of the will can be proved by at least two competent witnesses.^ 6. Cf. §§ 245, 246. See Sheer v. Sheer, 159 111. 591, 43 N. E. 334. But cf. as to a fraudulent or mistaken interpolation of which the testator knew nothing; Moore's Goods, (1892) P. 378. 7. See 1 Jarm. Wills, Am. Ed. Bigelow's note; Higlit v. Wilson, 1 Dall. 94; 1 Watts, 463. Proof of the testator's signature thus aflforded is prima facie evidence of its execu- tion though the will was not a holo- graph. Wiegel V. Wiegel, 5 Watts, 486. As to his holograph, see 131 Penn. St. 220, 6 L. R. A. 353, 17 Am. St. Rep. 798, 18 A. 1021; Tozer v. Jackson, 164 Penn. St. 373, 30 A. 400. If the testator be in extremis, his signature is dispensed with; but oth- erwise, the will should be signed by him, or by some one in his presence, and by his express direction; and in all cases two or more competent wit- nesses (though not subscribing ones) should establish its authenticity. 5 Whart. 386; Showers v. Showers, 27 Penn. St. 485, 67 Am. Dec. 487. See Wall V. Wall, 123 Penn. St. 545, 16 A. 598, where the testator died be- fore his intended will was finished; 75 Penn. St. 503. As to the Maryland code, with re- spect to a will of chattels, see Byers V. Hoppe, 61 Md. 206. In Tennessee, entries made in one's diary, which purport to dispose of the writer's property after his death, may constitute a holographic will. Reagan v. Stanley, 11 Lea, 316. Even although neither signed nor attested, these entries may be set up as a will of personalty, on sufficient proof of the handwriting. lb. And see 100 Tenn. 193, 43 S. W. 768. A holo- graph is not deprived of that peculiar character by the fact that there are witnesses to it. Roth's Succession, 31 La. Ann. 315. And see for the case of a holograph will established where an ineffectual attempt was made to formally execute a clean copy of it, Wilbourn v. Shell, 59 Miss. 205, 42 Am. Rep. 360. See § 312, post. In Virginia, a holograph will, with the testator's name at the commence- ment but not subscribed, with a blank left for the date, and containing an attestation clause but no witness, is held to be not well executed. Waller V. W^aller, 1 Gratt. 454, 42 Am. Dec. 564. See Warwick v. Warwick, 86 Va. 596, 10 S. E. 843; Perkins v. Jones, 84 Va. 358. But in North 317 257 LAW OF WILLS. [part ITT. The dictation of a will while in extremis stands, moreover under some local codes, upon an exceptional footing of f avor.^ § 257. A Will not properly executed and attested, is Inoperative under Modern Statutes. Under modem statu-tes which require a will to be duly exe^ cuted and attested by a certain number of subscribing witnesses, in order to give it effect, there can be no judicial evasion in favor of informal writings. Hence, if an instrument is in its true char- acter testamentary, but has not been properly attested, the fact that the maker never revoked or repudiated it during his life, gives it no validity for a probate.^ Nor can the paper thus in- tended to operate as a will be turned into a declaration of trust, so as to defeat the statute which prescribes how such wills shall Carolina an instrument with the re- quisite number of witnesses, one of whom is decided to be incompetent, may be proved, nevertheless, as a holograph will. Brown v. Beaver, 3 Jones, 516. In Kentucky a will which is wholly written out and signed by the testator requires no attestation. Toebbe v. Williams, 80 Ky. G61. But an unattested codicil, written and subscribed by the tes- tator, and hence executed as the statute requires, cannot bring into operation an unattested will not wholly written by the testator. S3 Ky. 584. And see 80 Va. 293 ; Camp's Estate, 66 P. 227, 134 Cai. 233; Fay's Estate, 145 Cal. 82, 78 P. 649, 104 Am. St. Rep. 17 (as to d;ite) ; Soher's Estate, 78 Cal. 477 (one wit- ness). In Skerrett's Estate, 67 Cal. 585, 8 P. 181, a letter addressed to a sis- ter, with a copy of deed of gift — uii in the brother's hand — was pro- bated as a holographic will. But cf. an ineffective writing in 50 La. Ann. 617, 23 So. 73. And see 36 So. 1039, 84 Miss. 157; Dougherty v. Hol- scheider, 88 S. W. 1113 (Tex. 1905). 8. See Pennsylvania rule as stated in preceding note; also Godden v. Burke, 35 La. Ann. 160. To constitute a good will of person- alty, by the Maryland rule, the paper must either be complete on its face, or if incomplete and defective, it must appear that the testator intend- ed it to operate as his will in its un- finished or incomplete state, or that he was prevented from completing it by sickness, death, or some other casualty. Plater v. Groome, 3 Md. 134. 9. Gough V. Findon, 7 Ex. 48; Rob- inson V. Schly, 6 Ga. 575; Watkins V. Dean, 10 Yerg. 320; Turner v. Scott, 51 Penn. St. 126; McCarty v. Waterman, 84 Md. 550, 57 Am. St. Rep. 415, 36 A. 592, and cases cited. 318 CHAP. I.] WHAT CONSTITUTES A WILIi. § 258 be executed.^ iln short, that which was intended as a will cannot legally take effect as such, unless executed with such formalities as public policy may have seen fit to impose for the better pro- tection of titles against fraud and uncertainty.^ It is insufficient, moreover, tthat a will complies with the statute formalities in force at the time of the testator's death ; for require- ments in force when the paper was executed afford the criterion of validity.^ § 258. Requirement of Writing, how satisfied; Materials to be used. The old Statute of Frauds, and the modern codes generally^ require the will to be in writing; and no compliance can be so natural and proper as the usual one, namely, the use of pen, ink, and paper. But if written in a printed or engraved blank, a will, like a deed, well satisfies the statute ; ^ and so, too, even though the entire will were printed, lithographed, or engraved (a practice certainly not so common, since every will must have its individual traits, and multiplied copies are useless), or prepared by the typewriter, hectograph, or any similar process.^ 1. Long's Appeal, 86 Peiin. St. 196. the New York real estate. Vogel v. 2. Equity courts cannot supply tlie Lehritter, 139 N. Y. 223, 34 N. E. defective execution of a will. Rob- 914; post § 491. son V. Jones, 3 Del. Cli. 51. 3. Packer v. Packer, 179 Penn. St. Civil law formalities difier from 580, 57 Am. St. Rep. 516, 36 A. 344; those usual in England and America. § 11 supra; 62 N. Y. S. 785; Amb. 550, Where a woman, a citizen of New 3 Atk. 551. And see 76 Mo. 543. Y'ork State, where she owned real es- 4. 1 Redf. Wills, 165 ; Henshaw v. tate, was domiciled in Germany, and Foster, 9 Pick. 312; Temple v. Mei'.d, before her death there procured a 4 Vt. 536; Adams's Goods, L. R. 2 P. local notary to draw up her will, & D. 367; Bench v. Bench, 2 P. B. signed the paper in his presence 60; L. R. 3 P. B. 159; 77 Ohio St. alone and sealed it up in an envelope, 704, 17 L. R. A. (N. S.) 353, 82 after which certain formalities were N. E. 1067 (statute), pursued with witnesses for identify- 5. lb. It is a rule of long stand- ing the paper, but insufficient for re- ing, that where a statute requires publication, this was held inoperative writing, it is satisfied by printing. as a duly executed will for devising Schneider v. Norris, 2 M. & S. 286. 319 § 258 LAW OF WILLS. [pAET III. It is here to be observed that the policy of the law seeks ma- terials and a mode of writing which shall sufficiently avoid the danger of fraudulent change or obliteration, and constitute for probate and public registry an instrimient which shall express plainly and permanently on its face the testator's final language as to his disposition. As between ink and pencil, the former, or, at least, that substance whose marks cannot be erased without leaving a sure sign, is decidedly preferable; yet it is generally held that a will written or altered in lead-pencil instead of ink would be good.^ Doubtless, there are extreme cases where one has not in his haste the choice of materials ; and if such extremi'ty be shown, and the will proved a genuine one, signed and witnessed after the regular form, a court should not strain at fine objections. But while one may write his will upon any material and in any mode, when forced to do so, a risk is incurred where the selecition of materials, deliberately made, is an impindent one and obnox- ious to the legislative policy. Thus, it is held in Pennsylvania that anything so easily rubbed out or altered as a writing on a slate, contravenes the policy of the law and cannot be admitted as a will, though intended by the decedent as her last will and tes- tament.^ So, too, the use of a pencil or other materials undesir- able for such solemn acts, may bear significantly upon the ques- tion, whether the act was performed with a full and final testa- mentary intent or only as something incomplete and preliminary. One may make erasures and alterations with a lead-pencil on a will prepared in ink, and the instrument so corrected may pass to probate ; ^ but changes of this sort are never presumed to be de- 6. Dypr, lie, 1 Hagnr. Eccl. 219, 1 Am. St. Rep. 798, 6 L. R. A. 353, IS Add. 406; 1 Redf. Wills, 165; 1 A. 1021. Wms. Exrs. Ill; Dickenson v. Dick- 7. Reed v. Woodward, 11 Pliila. enson, 2 Phillim. 173; Mence v. 541. But wliother a slate and pencil Monce, 18 Ves. 348; Bateman v. Pen- niif?lit not be used in an extreme case iiington, 3 Moore P. C. 223; Myers v. (such as of course seldom occurs), Viinderboit, 84 Pcnn. St. 510. 24 Am. there beinects this latter instrument had none of the characteristics of a testament; it warranted the title to the grantee; and the court pronounced it no will at all, but a deed of gift under reservations.' Generally speaking, an instrument in the form of a deed which is executed with testamentary formalities, and conveys all the property tliat th<' maker " may die possessed of " is treated in that State as a will, and should be duly presented for probate.'^ In other States, instruments made out in the form of a deed, but well executed for either deed or will, which convey a specified 8. Nifhols V. Chandler, 55 Ga. 360. 650, 16 S. E. 938; 48 S. E. 129, 120 9. Williams v. Tolbert, 66 Ga. 127. Ga. 583; Sharpe v. Mathews, 51 S. E. And see 66 Ga. 317; Robinson v. 706, 123 Ga. 794. Schly, 6 Ga. 515. 51 Ga. 239, 90 Ga. 1, Brewer v. Baxter. 41 Ga. 212. OOrt CHAP. I.] WHAT CONSTITUTES A WILL. § 2G8 traot of land, or, as the case may be, all of the maker's estate real ■and personal, ov his personalty only, have been pronounced wills and not deeds, because of (the true import of the transaction ; es- pecially if the instrument was retained by the signer as tbougli revocable, or reference was made to the instrument as a will, or words usual in testaments were employed, or ithe real intent to be gathered was, that no estate or interest in the property should pass imtil the maker's death.^ For among those devoted to agriculture it is not unusual to purpose a sort of conveyance of the farm in contemplation of death, with a proviso for the maker's support duiring the rest of his life, and a suspension of the gift to make that support sure. The scope of such a transaction is testa- mentary, though tlie maker himself may not be fully aware of it.^ 2. Miller v. Holt, 68 Mo. 584; Armstrong v. Armstrong, 4 Baxt. 357; Freed v. Clarke, 80 Penn. St. 171; Jordan's Administrator, 65 Ala. 301; Daniel v. Hill, 52 Ala. 430; 59 Ala. 349; Stevenson v. Huddleson, 13 B. Mon. 299; Frederick's Appeal, 52 Penn. St. 338, 91 Am. Dec. 159; Lautenschlager, Re, 80 Mich. 285; Wilenou v. Handlon, 69 N. E. 892, 207 ni. 104; Gomez v. Higgins, 30 So. 417, 130 Ala. 492; 94 Ala. 295, 10 So. 258; Murphy v. Gabbert, 66 S. W. 536, 166 Mo. 596; Ellis v. Plason, 53 S. W. 318, 104 Tenn. 591; 58 S. W. 550; Kelley v. Shimer, 152 Ind. 290 (a conveyance in regular form pre- sumed to be a deed) 141 N. W. 228, 153 Wis. 384, 158 S. W. 624, 252 Mo. 58. See Kelly v. Richardson, 100 Ala. 584, 13 So. 785 (instrument as a codicil) . A deed given in escrow to be op- erative after death is revocable by a will of the grantor. Leonard v. Leonard, 108 N. W. 985, 145 Mich. 563. Cf. 109 N. W. 886, 132 Iowa 442; EdwaU's Estate, 134 P. 104, 75 Wash. 391. And so wherever the am- bulatory character remains in the grantor. Megary's Estate, 55 A. 963, 206 Penn. 260. Cf. Griffin v. Mcin- tosh, 75 S. W. 677, 176 Mo. 392; Johnson v. Johnson, 54 A. 378, 24 R. I. 571; 69 N. Y. S. 163. 3. On the other hand an indenture which provides that in consideration of certain services to be performed by A for B during the latter's life, A shall be " the lawful heir of all the land B now owns," and by which B agrees to give most of his personal property presently to A is pronounce 1 not testamentary, but an executory agreement, which upon substantial performance of the conditions confers title upon A according to its tenor. Evans v. Lauderdale, 10 Lea, 73. And see Meck's Appeal, 97 Penn St. 313. Nor can instruments having the es- sential characteristics of deeds be construed into writings testamentary, dimming v. Gumming, 3 Ga. 460; supra, § 265, notes. As in the case 331 268a LAW OF WILLS. [part III. § 268a. The Same Subject: Miscellaneous American Cases. A testament may be made s^imply for the purpose of appointing an executor and giving liim autliority to act; and any will of such a t.enor which is duly executed and attested, ought tO' he admitted to probate, though brief and informal in expression.* So is it with an instrument which simply leaves the testator's property " for distribution under the laws of the State." ^ Orders on savings banks, duly executed, have been upheld as testamentary upon slight phraseology to that effect.® And so with promissory notes. '^ of an absolute deed of trust with res- ervation of a life interest in the grantor. 3 Ga. 460. 569. Or a deed passing title in praesenti with pos- session postponed until the gra.ntor's death. Griswold v. Griswold, 148 Ala. 239, 42 So. 554; Osw;ild v. CaM- well, 80 N. E. 131, 225 I'.l. 224; Per- etico V. Hays, 75 Kan. 76, 88 P. 738 ; 149 Cal. 143, 84 P. 839; Heaston v. Kreig, 167 Ind. 101, 77 N. E. 305; Day V. Meadows, 92 S W. 637, 19 1 Mo. 508; Beaumont's Estate. 63 A. 1023, 214 Penn. 445; 85 S. VV. 244, Ark. 1905; 70 N. E. 289, 208 111. 304 (several such deeds executed to- gether); Adair v. Craig, 33 So. 902, 135 Ala. 332 (no power to defeat title reserved) ; Robinson v. Ingram, 35 S. E. 612, 126 N. C. 327; Love v. Blauw, 59 P. 1059, 61 Kan. 496, 78 Am. St. Rep. 432, 48 L. R. A. 257. And see Smith v. Scott, 151 S. W. 42, 151 Ky. 64; Taylor v. Purdy, 151 S. W. 45, 151 Ky. 82 (deed and will executed as separate instruments), 71 S. E. 1047, 136 Ga. 700; Terry v. Glover, 139 S. W. 337, 235 Mo. 544. Or a deed not executing a power, nor containing a power of revocation, but confirming a will previously mide. 6 Md. 235. Sec Grain v. Grain, 21 Tex. 790. Nor is a bond transaction, whicli absolutely transfers a sum of money, to be deemed testamentary. Hinkle v. Landis, 131 Penn. St. 573,. 18 A. 941. Nor a lease of premises with reservation to the lessor of a right to vacate it. Ogle's Estate, 97 Wis. 56, 72 N. W. 389. Nor is a Mortgage of land, for interest dur- ing life, principal after death to remain in mortgagor and his heirs, testamentary. Fiscus v. Wilson, 74 Neb. 444, 104 N. W. 856. 4. Barber v. Barber, 17 Hun (N. Y.), 72. See § 297 post. 5. Lucas V. Parsons. 24 Ga. 640, 70 Am. Dec. 147. For other late instances of valid wills, brief and ratlier informal in expression, see Wood's Malter, 36 Cal. 75; Hall v. Bragg, 28 Ga. 330. An instrument duly executed and at- tested, in tlie following words, " I do hereby will all I have to mj' beloved wife, Jane, for her to have and hold forever," is a sufficient will to pass the entire real and personal estate of the testator to the devisee. Clingan V. Micheltree, 31 Penn. St. 25. 6. 134 Mass. 426. And see English cases cited, post. 7. Cover v. Stem, 07 Md. 499, 1 Am. CHAP. I.] WHAT CONSTITUTES A WILL. § 2G9 ISTotwitlistanding English precedents, we may regard it as the settled doctrine of most American States, that a will must be perfect in the testamentary sense, and designed as something final in shape, and not preliminary, or it cannot take effect as a will ; and tliis, in conformity to the American policy, which prescribes certain formalities of execution as indispensable, including a due attestation by witnesses. Mere drafts or minutes of wills are therefore inadmissible to probate.^ But some of our earlier de- cisions, made under statutes less explicit, and possibly later ones, too, in States whose legislation still favors holograph wills, and otherwise departs from the general policy, appear to conform to a laxer principle.^ A paper drawn up as a memorandum of in- structions and then duly executed and attested as a will, woidd of course operate in its final character because of a corresponding change of purpose which the testator had properly carried out § 269. The Same Subject: Miscellaneous English Cases. There are English cases which present similar points of in- quiry, under the operation of the Wills Act of 1837. Thus, where a person on his death-bed executed, with all the formalities pre- scribed for a will, a paper in the form of a bill of exchange, the instrument was held entitled to probate; and under the circum- stances it served as a codicil to his former will.^ A duly executed paper of ithis tenor, " I wish my sister to have my bank-book for her own use," was held testamentary, upon satisfactory proof that the deceased meant it to operate as a posthumous disposition and St. Rep. 406, 10 A. 231; Sunday's Es- 1061, 253 III. 528 (note "payable tate, 167 Penn. St. 30, 31 A. 353, and after my death"). cases cited; McCourt v. Peppard, 105 8. Vernam v. Spencer, 3 Bradf. (N. N. W. 809, 126 Wis. 326. But cf. Y.) 16; Rooff's Appeal, 26 Penn. St. De Martini v. Allegretti, 79 P. 871, 219; Rurand v. Wilt, 9 Penn. St. 54; 146 Cal. 214; 102 N. W. 163, 13 N. D. Lungren v. Swartzwelder, 44 Md. 574 ; 92 N. Y. S. 578 ; Main's Appeal, 482 ; Hart v. Rust, 46 Tex. 556. 48 A. 965. 73 Conn. 638 (savings 9. See Boofter v. Rogers, 9 Gill, bank deposit) ; Smith v. Smith. 70 44, A. § 266. S. E. 491, 112 Va. 205. See Keeler 1. Jones v. Nicholay, 2 Rob. 288. V. Merchants' Trust Co., 97 N. E. 333 § 270 LAW OF WILLS. [pAKT III. not as an immediate gift.^ And there are other cases where papers in the tenor of a gift or transfer of a fund, properly signed and witnessed, are pronounced testamentary, upon collateral or in- trinsic proof that such was their design.^ A deed-poll, executed before two witnesses with the formality of a will, has been admitted to probate on evidence showing that it was only to take effect at the maker's death.* So have writings in the form of a letter, duly attested, where the intention shown was posithumous, even though the words of gift were not stated in the future tense.^ Also instructions for a will which have been duly executed as final.^ Letters sealed and directed to a person, which contain promissory notes, are held to be in effect a legacy ; and if not duly attested in accordance with the statute, they are inoperative.^ Where an instrument made out hy a person abroad in the form of a power of attorney, but properly executed as a will, empowered another to collect the rents of his lands and provided also for the disposition of the property in case of his own death before return- ing home ; this was held a good will of the lands.^ § 270. Whether One Instrument may be partly a Deed or Con- tract and partly a Will. There appears no legal objection to regarding the same instru- ment as partly a deed or contract and partly a will, partly for present and partly for posthumous operation, if thei maker chose to combine these purposes. Asi where one, going on a journey, embraces a power of attorney to manage his property and a testa- 2. Cock V. Cooke, L. R. 1 P. & D. mentary instruments in Milncs v. 241. Foden, 15 P. D. 105. 3. Coles, Re, L. R. 2 P. & D. 362; 5. Coles's Goods, 9 L. R. 2 P. & D. Robertson v. Smith, L. R. 2 P. & D, 362; Miindy's Goods, 2 S & T. 119. 43; Marsden, Re, 1 S. & T. 542. 6. Fisher's Goods, 20 L. T. 684. 4. Morgan's Goods, L. R. 1 P. & D. 7. Gough v. Findon, 7 Ex. 48. 214. Revocable deeds-poll in which a 8. Doe v. Cross, 8 Q. B. 714. And jiower of appointment was exercised see Slinn's Goods, 15 P. D. 156. were admitted to probate as testa- 334 CHAP. I.] WHAT CONSTITUTES A WILL. § 271 ment disposing of it in case of his death in the same duly attested instrument.^ To probate the testamentary part of the docu- ment as a will in such a case is no violation of 'the maker's intent, but rather a sanction of it. It rarely happens, however, that a testamentary purpose is announced so awkwardly ; and the com- mon presumption being, that an instrument was or was not in- tended to sitand per se as a will, the court, if doubt exists, must make its choice. In this latter sense alone should the dictum be imdersitood that the same paper cannot operate both as a will and a deed.^ For notwithstanding certain provisions contained in a testamentary paper are intended to operate as a contract inter vivos, the insitrument is none the less a will in regard to its other provisions.^ But, on the other hand, an instrument intended as a deed or contract inter vivos cannot be treated as a will, even ithough worthless and inoperative (as, for instance, for want of delivery) in the other sense.^ § 271. A Will is to be distinguished from a Gift Inter Vivos or Causa Mortis, An intended will should be distinguished from an intended gift of some chattel, w'hich latter involves a delivery.* Such a docu- 9. Doe V. Cross, 8 Q. B. 714; Bar- 3. Dawson v. Dawson, 2 Strobh. Eq. ker's Goods, P. 251 (1891). And see 34; Edwards v. Smith, 35 Miss. 197; Dawson v. Dawson, 2 Strobh. Eq. 34; Skerrett's Estate, 67 Cal. 585, 8 P. Robinson v. Schly, 6 Ga. 515; Stew- 181. art V. Stewart, 59 N. E. 116, 177 4. Basket v. Hassell, 108 U. S. 267, Mass. 493; Taylor v. Kelly, 31 Ala. 27 L. Ed. 719; 2 Schoul. Pers. Prop. 59, 68 Am. Dec. 150; Reed v. Hazle- §§ 135-198. As to checks, promissory ton, 37 Kan. 321, 15 P. 177. not^s, etc., passed over by way of 1. Tliompson v. Thompson, 19 Al:i. gifts causa mortis without indorse- 59 ; Robinson, Re, L. R. 1 P, & D. 384. ment, see Veal v. Veal, 27 Beav. 303 ; A paper may be testamentary in de- Clement v. Cheeseman, 27 Ch. D. 631; sign as to part of the property and 2 Sch. Pers. Prop. §§ 167, 197. See so admissible to probate, but incom- formal will set up against an unex- plete in design as to another part and ecuted disposition by way of gift, 190 so far inoperative. Devecmon v. De- Penn. St. 382. As to previous deliv- vecmon, 43 Md. 335. ery with other intention, see Cain v. 2. Taylor v. Kelly, 31 Ala. 59, 6S Moon (1896), 2 Q. B. 283. Am. Dec. 150. It is a curious circumstance tliat 335 § 272 LAW OF WILLS. [pART III. ment, invalid for want of proper attestation, cannot be sustained as a gift causa mortis^ nor as an immediate assignment, nor as a gift inter vivos.^ To constitute a gift generally there must be an absolute delivery wdtlio'ut conditions (except for the essential condition causa mor- tis) as to the vesting of title ; but a donor's promise consistent with the gift does not invalidate it.^ § 272. The Test in Doubtful Cases as between a Will and Some Other Instrument. ISTow, to consider the true test in a doubtful case, as to whether the particular writing be really a will or siome other instrument. It is the animus testandi in general which makes any instrument a will, or vice versa? And it is laid down in some cases that an instrument cannot be allowed as a will if, at the time of execution, the deceased did not intend to make his will, nor know that he was making it.^ This statement proves usually accurate; but in prac- tice, and aside from legislation which requires one to declare it his will 'before witnesses, the criterion does not always serve. To take, for instance, that class of cases where the farmer makes a conveyance of his land in form, but with the idea of securing his sure support out of the property until death ; ^ here it is often hard to discover whether, technically speaking, the disposition was testamentary or not; and in all probability the disposer himself had no clear opinion on that point. But the transaction itself is while our modern statutes tend to re- A promissory note, to become due on strain or alwlish the making of nun- the maker's death, is not testamentarv cupative or oral wills, they freely per- as to formalities but is governed by mit gifts causa mortis, which are of the rule of gifts and contracts. lb. essentially the same character and 7. Lylcs v. Lyles, 2 Nott. & M. 531; equally liable to objection. McCloskey v. Tierney, 74 P. 699, 141 5. Huglirs, Re, W. N. (1888) 163; Cal. 101, 99 Am. St. Rep. 33; 77 P. Smith V. Iloldcn, 58 Kan. 535, 50 P. 71, 143 Cal. 528; Smith v. Holden, 58 447. Kan. 535. 447. 6. See Beatty v. Western College, 8. Swett v. Boardman, 1 Mass. 25S; 177 111. 280. 69 Am. St. Rep. 242, 42 Combs v. Jolly, 3 N J. Eq. 625. L. R. A. 52 N. E. 432, and cases cited. 9. Siupra, § 268, and cases cited. 33 G CnAP. I.] WHAT CONSTITUTES A WILL. § 272 seen to be eitlier testamentary in character, or the reverse; and as this is the transaction the maker intended, his instrument is declared a will or a deed accordingly. Even though he could be eho-wn to (have intended it. as a will and attested it as such, this would not avail as against the actual transaction; and so vice versa} In other words, to adopt the language of an eminent Eng- lish judge, " whether the maker would have called this a deed or a will is one question ; whether it shall operate as a deed or a will is a distinct question that is to be governed by the pirovisions in the instrument." ^ In short, to determine tlie true dharacter of a doubtful instru- ment we must read the intention of the maker by the light of the transaction itself, as shown by the provisions of the instrument ^nd all the surrounding circumstances. If the intention be to oonvey in effect a present estate or interest upon the execution of the instrument; by which is meant, not necessarily a present vested interest in possession, since any grantor might reserve to himself or create for another's benefit a life estate, with all use and occupa- tion, rents or profits, by way of precedence; the instrument is a deed and not a will.^ But to be a will the estate must accrue and take effect only after the maker's death ; and if such be the opera- tion, the instrument is not a deed.* IsTo paper can be deemed tes- 1. Whether a writing is a will, de- Coulter v. Shelmadine, 53 A. 638, 204 pends upon its contents, and not upon Penn. 120; Smith v. Baxter, 53 A. any declaration of the maker that it 1125, 68 N. J. L. 414. is a will when he executes it. Pat- It is perhaps enough to &ay, that terson v. English, 71 Penn. St 454. if the maker intended a disposition 2. BuUer, J., in Habergham v. Vin- which was in legal effect testament- cent, 2 Ves. Jr. 231. ary, that disposition will be regarded A voluntary conveyance to A, which as testamentary, is placed in the hands of a third per- 3. Gates v. Gates, 135 Ind. 272, 34 son, to be delivered after the grantor's N. E. 957, and cases cited, death, is not testamentary, but a gift, 4. Habergham v. Vincent, 2 Ves. Jr. if all control to alter is p:irted with, 231; Williams v. Tolbert, 66 Ga. 127; even though the grantor retain an in- Morgan's Goods, L. R. 1 P. & D. 214; terest for life. Bogm v. Swearingen, Reed v. Hazleton, 37 Kan. 321, 15 P. es N. E. 426, 199 111. 457; Clirist v. 177, Kuehne, 72 S. W. 537, 172 Mo. 118; 22 337 § 273 LAW OF WILLS. [part III. tameiitary and entitled to probate as a will, unless the benefit it confers is postponed to tJhe death of the party who confers it.^ "Nor can that usually be pronounced a testamentary document although suitably witnessed, which unequivocally declares on its face that it is not meant as a will.^ § 273. The Same Subject: Conclusion. The form of the instrumenit in controversy will usually deter- mine its true character, unless a contrary intention appears on its faee.^ But collateral evidence is freely admitted where the in- strument itself is silent or equivocal, in order to show whether or not a (testamentary disposition was actually intended.^ The facts of execution and delivery, the declarations of the maker at the time, and all the surrounding circumstances of the transaction, together with the instrument itself, may be considered in such a connection.^ And notwithstanding the use of technical words and expressions, which might lead to a different conclusion, the paper will be pronounced what, upon the whole, the true scope and bear- ing of its contents entitle it to be considered.^ On the presump- tion that all was done rightly, probate has been granted of a will executed in the form of a deed, even though the attesting witnesses ihad no precise recollection of the circumstances of the execution.^ 5. Hence a paper which directs a Armstrong v. Armstrong, 4 Baxt. 357. benefit to be conferred inter vivos 8. Jones v. Nicholay, 2 Robert. 292 ; without express or implied reference 3 Sw. & Tr. 586; Cock v. Cooke, L. to the maker's death, cannot be es- R. 1 P. & D. 241; Robertson v. Smith, tablished as a will. 1 Wms. Exrs. L. R. 2 P & D. 43; Gage v. Gage, 12 107; Glynn v. Oglander, 2 Hagg. 428; N. H. 371; Sharp v. Hall, 86 Ala. 110, 3 Hagg. 218, 4 Hagg. 359. 11 Am. St. Rep. 23, 5 So. 497: 105 N. 6. Ferguson-Davie v. Ferguson- W. 1110, 42 Mich. 589. See § 277, Davie, 15 P. D. 109. Here the piper, post. made subsequently to the will, dis- 9. lb. tinctly stated: "This is not meant 1. 1 Jarm. Wills, 18; Thompson v. as a legal will, but as guide; " and Johnson, 19 Ala. 59; Hamilton v. the court refused to consider it a codi- Peace, 2 Desaus. 92; Armstrong v. cil. Cf. § 275; Patterson v. English, Armstrong, 4 Baxt. 357; Rawlings v. eupra. McRoberts, 95 Ky. 346, 25 S. W. 601. 7. lb.; Miller v. Holt, 68 Mo. 584; 2. Colyer's Goods, 14 P. D. 48. As 338 CHAr. I.] WHAT CONSTITUTES A WILL. § 274 § 274. Posthumous and Ambulatory or Revocable Character of a Will. The great criterion, then, of a testamentary disposition is, that by intendment it takes eifect only at the death of the maker, vest- ing no earlier interest in the beneficiary. An instrument, what- ever its form, is testamentary where its obvious intention is to serve no purpose and have no effect until after the death of its au- thor. And the chief and usual incident of such a disposition is, that until the maker's death:, it continues ambulatory or revocable at his discretion. In general, an instrument which purports to be a last will, and purports to dispose, not of present property, but of that whichi the maker shall at his death be seized or possessed, is ineffectual in any other sense than as a will, and must be duly executed with whatever formalities the statute may have imposed.^ On the other hand, where a conveyance or instrument of transfer of one's present property is made with no power reserved to revoke, there is usually no will.* A transaction in the nature of an agreement upon mutual cour eideration, which is made irrevocable and binding upon the person who stipulates what shall be done in the event of his death, cannot in general be held to involve a will,^ But there may be a will, to a power of attorney, wide enough a deed. Belgarde v. Carter, 146 S. in scope to have a testamentary char- W. 964 (Tex. Civ. App.). acter, see supra, § 269. 5. Meck's Appeal, 97 Penn. St. 313. 3. Poore v. Poore, 55 Kan. 687, 41 An antenuptial marriage settlement P. 973; Conrad v. Douglas, 59 Minn. rendered irrevocable on the marriage 498, 61 N. W. 673. One's testamen- is not a testamentary paper. 8 Ir. tary purposes are revocable at his Eq. 567. Nor is an instrument by will. Van Horn v. Demarest, 77 A. way of lease with provision as to ap- 354, 76 N. J. Eq. 386; 143 N. Y. S. plying rents in the event of the les- 1148 (word "final" used); Aldrich sor's death; this, too, is irrevocable. v. Aldrich, 102 N. E. 487, 215 Mass. Robinson's Goods, L. R. 1 P. & D. 164 ("last will"). 384. A. gave a writing to his bank- 4. 68 S. W. 411, 24 Ky. Law, 262; ers which he called "an assignment." 41 S. E. 602, 115 Ga. 277; cases, § But it was in its purport a will. 268, suprrh. What was intended as a Comer v. Comer, 120 111. 425. See will, but failed as such for want of also Morrison v. Bartlett, 147 S. W. due execution, cannot be turned into 761, 148 Ky. 833. As to a writing 339 § 275 LAW OF WILLS. [pART III. given "upon some consideration by way of an independent cove- nant, for the breach of which even third parties might rightfully sue.® Where the consideration kept in view is service or the tes- tator's life support from the intended beneficiary, his own power to revoke the will (or, indeed, to leave no will at all, or a different sort of one) is his constant security.'^ The modem equity doctrine of mutual or joint wills, however, or of a contract upon good con- sideiration to execute some particular will, introduces a new refine- ment, by way of eliminating this revocable or ambulatory incident, otherwise universal ; which subject we shall discuss in place here- after.* The idea that the maker intended a will and not a transfer inter vivos, is strengthened by the circumstance that he kept the doubtful instrument under his own control, thus suspending de- livery until his death and making it easy to revoke the disposition.^ § 275. What a Testator executes as his Will, should so operate, notwithstanding his Mistake of Law. The instrument which a testator executes finally as his will, should so operate, if all legal formalities have been actually com- plied with, notwithstanding his mistaken belief that other formali- ties were requisite.^ As where one makes what is a will, in sub- which commenced " It is my wish," bee v. Williams, 80 Ky. C61, where, etc., see Gaston's Estate, 188 Penn. however, the facts as reported appear St. 374. hardly satisfactory. A. executed a 6. Armstrong v. Armstrong, 4 Baxt. holograph will, supposing a witness 357. clause necessary to complete it, and 7. See Miller v. Holt, 68 Mo. 584. handed it for suggestions to his law- 8. See Part V., post, C. I. as to joint yer, who made slight changes and re- or Mutual Wills, etc. turned it. Holograph wills in that 9. See Nichols v. t'handler, 55 Ga. State require no witnesses to the tes- 369. tator's signature; and the court ad- 1. This principle requires, as we mitted the will to probate, treating presume, that the testator executed the changes made by the lawyer as no the paper with a final testamentary part of it. The opinion states, how- purpose, and not as a mere prelimin- ever, that the will was wholly writ- ary or deliberative writing. See ten and signed by the testator with Fisher's rk)ods, 20 L. T. 684. The the intent tliat it should be his will, rule of the text is supported by Toeb- 340 CHAP. I.] WHAT CONSTITUTES A WILL. § 27G stance, but expresses therein an intention of making later a more formal one.^ § 276. Writings, otherwise intended by the Maker, how far up- held as Testamentary by the Courts. While informal and unattested writings were upheld in Eng- land as wills of personal property (though not as devises of land), and a man was hardly thought to deserve a respeotable name after death unless he left some will behind him disposing of his property, real and personal, instruments not really meant to be wills were allowed so to operate as to personalty, if they could not operate in the character intended. Why ecclesiastical courts ac- corded this favor was, because they exercised a flexible discretion in the premises ; and their argument was that the maker, having died without making any other disposition of his personalty, his purpose could only be effected by treating (the paper as testamen- tary. Hence, if the purpose disclosed was tO' make a disposition of one's property after his death, the instrument was treated as a will, though actually meant to operate as a sottlement, or a deed of gift, or a bond.^ Some American cases proceed upon the same view.* " But no case," observes Mr. Williams, " has gone the length of deciding, that because an instrument cannot operate in the form given to it, it must operate as a will ;" ^ and that eminent writer's inclination was evidently to conform this theory to the safer principle we have already adduced ; namely, that the true intent and scope of the instrument, whatever the form or the maker's apprehension or misapprehension as to its legal effect, shall sufficiently conclude it a testament and give it the testamen- tary operation which legally belongs to it.^ Under the prevalent policy of our day, which insists upon formal signature and at- 2. Beebe, Re, 6 Dem. (N. Y.) 43. ment intended to operate as a deed 3. Masterman v. Maberly, 2 Hagg. cannot take effect as a will, though 247. See Morgan's Goods, L. R. 1 P. invalid as a deed. Edwards v. Smith, & D. 214. 35 Miss. 197. 4. Kelleher v. Kernan, 60 Md. 440. 6. Supra, § 270; 15 P. D. 109. 5. 1 Wms. Exrs. 106. An instru- 341 § 277 LAW OF WILLS. [PAKT III. testation, and treats intestacy as no such serious misfortune, courts will hardly venture beyond tlie shadow of that principle. § 277. Extrinsic Evidence not Admissible to dispute the Plain Tenor of the Instrument; Effect of Doubt, etc. In the cases we have thus considered, where extrinsic and parol evidence was admitted to show whether an instrument was or was not testamentary in its true intent, a doubt was suggested on the face of the instrument. Where, however, in both form and sub- stance, the writing is plainly a will, and execution with all the pre- scribed formalities can be shown, its obvious intent and scope can- not be contradicted or controlled in operating by parol and extrinsio evidence.^ And if, on the other hand, an instrument expressed and executed as a deed be delivered inter vivos to the party who on its face appeared entitled to it, no agreement in conflict with its plain tenor can be proved after the maker's death, to show (that its operation was testamentary or dependent on some condition subse- quent.* So, too, where judgment notes are made out and wit- nessed, papers whose tenor on the face as such is clear, intelligent and unambiguous, and nothing said or done at their execution denoted or implied that they were not to be delivered during the maker's lifetime, or that their operation was to be positponed to his death), they are not entitled to probate as testamentary.' Where, however, something to suggest a doubt as to whether the instrument was intended to be testamentary or not appears on the face of it, extrinsic evidence as to the circumstances, besides the fact of execution, is admissible, so as to enable the court to deter- mine the true character of that instrument.^ This does not throw upon the propounder a burden of proof which he fails to satisfy 7. Whytn v. Pdllok, 7 App. Cas. Hoiist. 569; 190 Penn. St. 476 42 A. 400; Sewell v. SlinglulF, 57 Md. 537; 886 (extrinsic evidence admitted); £nf,'li9h's Goods, 3 S. & T. 586. Kelley v. Shimer, 152 Ind. 290, 53 N. 8. Black V. Shreeve, 2 Beasl. 458; E. 233. Davy's Goods, 1 S. & T. 262. 1. Whyte v. Pollok, 7 App. Cas. 9. Sunday's Estate, 167 Penn. St. 400. 30. And see Kirkpatrick v. Pyle, 6 342 CHAP. I.] WHAT CONSTITUTES A WILL. § 278 if the evidence does not confirm the instrument as a will ; but the natural consequence is, that the court will fall back upon the in- strument itself, and apply sound principles of construction to arrive at its real characiter, just as it would in interpreting any other document.^ § 277a. Doubtful Writing, if Pronounced a Will, fails unless formally executed. It is obvious that such a writing of doubtful character as we have considered must fail of probate and enforcement altogether if pronounced a will, unless executed with all the statu/te formali- ties which' a testament requires.^ § 278. Wills made in Jest or without the Animus Testandi, etc. Wills, to be valid, require, of course, the genuine animus tes- tandi ; to the extent, ait least, of intending a disposition whose legal effect the court may safely pronounce testamentary. The mind should act freely and understandingly to tbis intent ; and therefore it may be shown in evidence to vitiate an alleged will, not only that it was the offspring of an unsound mind, of essential error, or of coercion, but that it was written in jest, or without any idea of making an operative will.* Such jests, however, are unsafe ones ; and parol evidence tending to prove that a paper expressed and executed with all solemn formalities as a will was not so in- tended, or was only to operate under certain reservations not dis- closed on it® face, is very little encouraged by authority.^ 2. lb. per Lord Selborne. Webster, 100 N. E. 637, 213 Mags. 3. Cover v. Stem, 67 Md. 449, 1 Am. 491; Remer v. Benedict, 88 A. 383, 81 St. Rep. 406, 10 A. 231; Comer v. N. J. Eq. 222. Comer, 120 111. 421, 11 N. E. 848. 4. Nichols v. Nichols, 2 Phillim. And see as to articles of copartner- 180; Lister v. Smith, 3 Sw. & Tr. 282; ship of a testamentary character, Mc- Swett v. Boardman, 1 Mass. 258, 2 Kennon v. McKennon, 46 Fed. 713. Am. Dec. 16. And see §§ 215a, 216, See also Griffin v. Mcintosh, 75 S. W. supra; Fleming v. Morrison, 72 N. E. 677, 176 Mo. 392 (deed in form) ; 80 499, 187 Mass. 120, 105 Am. St. Rep. N. E. 131, 225 111. 224; Keeler v. Mer- 386 (a " fake" will), chants' Trust Co., 97 N. E. 1061, 253 5. See Sewell v. Slingluff, 57 Md. 111. 528 (promissory note) ; Russell v. 343 § 280 LAW OF WILLS. [pART III. § 279. Regular Papers imply the A.nimus Testandi; otherwise with Papers which are not on their Face Testamentary. A regular paper regularly executed speaks for itself, and the animus testandi is naturally inferred. But papers which are not clearly on their face of a testamentary character, even though signed and attested,, require to have the animus testandi shown to the satisfaction of the court.® Any instrument manifestly exe- cute^d as a will and testamentary in character is 4:o h& admitted to probate without considering its peculiar legal effect.^ § 280. Several Papers probated together as constituting a Will; Will and Codicils, etc. It is not essential that the last will of a testator be expressed in a single instrument. The instance of a will with several codicils is a familiar one in point. And there may be several papers of different natures and forms, constituting a will when taken to- gether ; ^ wills, for instance which dispose separately of property foreign and domestic ; ^ not in full effect, however, in these times, ■unless the local statute prescribing a formal signature 'and attesta- tion be duly complied with.^ 537, 547; Brown v, Avery, 58 So. 34 235; Phelps v. Bobbins, 40 Conn. 250; Fla. (1912). Wikoflf's Appeal, 15 Penn. St. 281, 53 6. Thorncroft v. Lashmar, 2 Sw. & Am. Dec. 597; 1 Tuck. Sur. (N. Y.) Tr. 479; Whyte v. Pollok, 7 App. Cas. 205; 1 Bradf. Sur. (N. y.) 114 ; 36 400. Col. 467, 85 P. 84, 63. 7. Taylor V. D'Egville, 3 Hagg. 206 ; 9. As to two holographic instru- Mundy's Gk)ods, 2 S. & T. 119. By ments constituting one will, see Mur- way of evidence as to whether the phy's Estate, 104 Cal. 554, 38 P. 543, doubtful instrument was intended as 63 S. W. 937. See (1893) P. 254. a will reference may be made to sur- 1. A former will absolutely and rounding circumstances, contempor- fully revoked by a later one ought aneous writings of the decedent and to constitute no part of the probate; the like. Smith v. Smith, 70 S. E. but such reference in the latter to 491. 112 Va. 205. the former will as makes it only pro 8. 1 Wms. 107; Morgan's Goods, tanto a revocation, entitles the two L. R. 1 P. & D. 323; Sandford v. papers to probate as containing to- Vaughan, 1 Phillim. 39; Hitchings v. gether the last will. Cf. Sinclair's Wood, 2 Moore P. C. 355; 4 S. & T. Goods, 3 Curt. 746; and Duff's Goods, 23; Mastcrman v. Mabcrly, 2 Hagg. 4 Notes of Cas. 474; 1 Wms. Exrs. 97^ 344 CHAP. I.] WHAT CONSTITUTES A WILL. § 281 § 281. Instruments Incorporated in the Will and Documents Extraneous. It is held, moreover, in various ins^tances, that if a testator refers in his duly executed and attested will to another paper which has already been written out, clearly and distinctly identifying and deserihing it, so that it may safely be incorporated in so solemn a disposition, that paper should be probated as part of the will itself. But a later or even a contemporaneous writing, having the character of a mere letter of instructions to one's executors, and not being executed and attested as the law requires, can have no testamentary operation, and should not be admitted to probate. And, in general, an extraneous unattested writing, ito be incor- porated with the will itself, should be reasonably identified by ref- erence as part of it and as existing when the will was executed.^ The modem English and American rule on this point is suc- cinctly stated in a Massachusetts case : " If a will, executed and witnessed as required by statute, incorporates in itself by refer- ence any document or paper not so executed and witnessed, whetJaer the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof, as the paper refea-red to therein, takes effect as part of tiie will and Part IV., post. A testator may make St. 381, 52 Am. Rep. 478; Pollock v. separate wills as to separate parts of Greassell, 2 Gratt. 439; Tonnele v. his estate, and unless one ineorpor- Hall, 4 Comst. 140; Beall v. Cunning- ates another they need not all be pro- ham, 3 B. Mon. 390; l Wms. Exrs. 97, bated together. St. John's Parish v. and cases cited; Brown v. Clark. 77 Bostwick, 8 App. D. C. 452. N. Y. 369, 3 Rich. Eq. 305; 14 Mo. 2. Habergham V. Vincent, 2 Ves. Jr. 587; Chambers v. McDaniel, 6 Ired. 204; Singleton v. Tomlinson, 3 App. 226: 117 Penn. St. 238, 2 Am. Rep. Cas. 404; Sibthorp's Goods, L. R. 1 660, 14 A. 816; Willey's Estate, 60 P. & D. 106; Bizzey v. Flight, 3 Ch. P. 47, 128 Cal. 1; Schillinger v. Ba-v- D. 269; (1893) P. 254; Lucas v. lek, 112 N. W. 110, 10 Iowa, 1907; Brooks, 18 Wall. 436, 21 L. Ed. 779; Magnus v. Magnus, 84 A. 705, 80 N. Newton v. Seaman's Friend Society, J. Eq. 346 ("my instructions to 130 Mass. 91, 39 Am. Rep. 433: 15 A" insufficient for a reference); Hun, 410; Baker's Appeal, 107 Penn. Baldwin v. Barber, 151 S. W. 1124,, 345 § 281 LAW 01? WILLS. [part hi. should be admitted to probate as such.'' ^ In oonfonnity with such a doctrine, a will which was void for want of proper attestation, has been validated by a subsequent codicil properly attested, which sufficiently refers to and embraces it.'' As to a paper not actually in existence, but hereafter to be pre- pared and executed, no reference in the existing will can give it any valid testamentary effect, independently of its own proper execution as a will in conformity with the statute. Hence, the testator cannot reserve a power to dispose of property at a future time by what is tantamount to a will informally executed.^ Nor to select a legatee under some subsequent writing.^ Indeed, the 148 Ky. 370; Keeler v. Merchants' Trust Co., 97 N. E. 528, 253 111. 528 (parol evidence not admitted to in- corporate, where the will itself omits reference); Martindale's Will, 127 N. Y. S. 887; Hopper's Estate, 134 N. W. 237, 90 Neb. 623. Where the will (not read by the witnesses) stated one thing about pa- pers to be incorporated, while the tes- tator told the witnesses something else, identity is not established. Gar- nett's Goods, (1894) P. 90. 3. Gray, C. J., in Newton v. Sea- man's Friend Society, 130 Mass. 91, 39 Am. Rep. 433. The instrument is thus considered as identified with and forming part of the will itself, in the same manner as if repeated totidem verbis in the will itself. 3 Curt. 468, 493. But to incorporate a document in the probate of a will, three things are necessary: (1) that the will should refer to the document as then in existence; (2) proof that the docu- ment propounded was in fact written before the will was made; and (3) proof of the identity of such document with tliat referred to in the will. Kehol's Goods, 13 L. R. Ir. 13. An 1 see Singleton v. Tomlinson, 3 App. Cas. 404. Williams considers the state of thi English law as very unsatisfactory on this point, where the document re- ferred to is not per se testamentary, especially in cases where the paper is in the hands of another party, who cannot be forced to produce it. 1 Wms. Exrs. 97, note; Sheldon v. Sheldon, 1 Robert. 81; Astor's Goods, 1 P. Div. 170. The probate court in such cases exercises discretion accord- ing to the circumstances. Sibthorp's Goods, L. R. 1 P. & D. 106; Jordan V. Jordan, 65 Ala. 301 ; 60 A. 266, 77 Conn. 604, 107 Am. St. Rep. 64. 4. Murfield's Will, 74 Iowa, 47!); § 448, post. Cf. 83 Ky. 584. 5. Johnson v. Ball, 5 De G. & Sra. 85; Langdon v. Astor, 3 Duer, 477; s. c, 16 N. Y. 9; Thayer v. Welling- ton, 9 Allen, 283; Croker v. Lord Hertford, 4 Moore P. C. 339; 3 Curt. 468; Grabill v. Barr, 5 Penn. St. 441, 47 Am. Dec. 418. 6. Dennis v. Holsapple, 148 Ind. 297, 300, 62 Am. St. Rep. 526; 46 L. R. A. 168, 47 N. E. 631; Shields v. Freeman, 73 S. E 805, 158 N. C. 125. 346 CHAP. I.] WHAT CONSTITUTES A WILL. § 282 written reference in the will to a paper as something to be after- wards prepared, sufficiently debars that paper from being legally incorporated with i«t; for parol evidence of the time of prepara- tion is held inadmissible to contradict such reference."^ And in some of our States, the courts are very reluctant to admit as wills any extraneous unattested paper whose purport is to dispose, and not merely to explain, describe, or arrange the details under the formal instrument.'' A testator cannot be too scrupulous about having his will in final and complete shape before the execution takes place, and avoiding all amendments and additions afterwards without the full solemnities.' § 282. The Same Subject: Parol Evidence, how far Admissible; Later Adoption in Form; Burden of Proof. Parol evidence is admissible, in case of doubt, to identify the reference made in a duly executed will as to other attested or unat- tested papers already existing, so as tru- court of construction. If, therefore, ment as the testator's last will and in a case of this kind there be room testament. The effect of tlie contin- for reasonable doubt as to the con- gent expression, in this carelessly tingent character of the instrument, drawn will, upon the first clause as if there are not clear and unquestion- contrasted with the later ones, the able terms of contingency, the pro- court did not consider; that being a 355 § 289 LAW OF WILLS. [pART III. in ]^ew York, where the will began: "According to my present in- 'tention, should anything happen to me before I reach my friends in St. Louis, I wish to make a correct disposal of the three hun- dred dollars now in the hands of H.," etc.^ And once more by a very free interpretation, in a West Virginia case, the following instnmient : " Let all men know hereby, if I get drowned this morning, March 7, 1872, (that I bequeath all my property, per- sonal and real, to my beloved wife F."^ § 289. The Same Subject. On the other hand, several American cases have treated a will of dubious phrase as contingent. Thus, in Kentucky, where a will devised real estate after this form : "As I intend starting in a few days to ithe State of Missouri, and should anything happen that I should not return alive, my wish is," etc.^ And in Missouri, where, very curiously, a will couched in nearly the same language, began : " I start this day for Kentucky," etc.^ In each instance, the testator was fortunate enough ito go to and fro between these two States alive, and his will failed in consequence. More recently, in Pennsylvania, a testamentary paper, badly worded and spelled, and awkwardly expressed, was refused probate, where the direc- tion was, " If I should not get back, do as I say," and the testator, matter of later construction not in- death, no presumption against the terfering with a probate. will arises in consequence. French v. 7. Lindsay, Ex parte, 2 Bradf. Sur. French, 14 W. Va. 458. (N. Y.) 204. 9. Dougherty v. Dougherty, 4 Met. 8. French V. French, 14 W. Va. 458; (Ky.) 25. See also Todd's Will, 2 Green, Prcs., dissenting. In the opin- W. &. S. 145; Broadus v. Rosson, 3 ions here pronounced, the later prece- Leigh, 12; Wagner v. M'Donald, 2 dents, English and American, are Har. & J. 346; French v. French, 14 quite exhaustively cited and com- W. Va. 458, and cases cited; Eaton v. pared. See also Kelleher v. Kernan, Brown, 24 S. Ct. 487, 193 U. S. 411, 60 Md. 440; Barton's Estate, 52 Cal. 48 L. Ed. 730; Redhead's Estate, 35 538. So. 161, 83 Miss. 141; Forgner's Es- Siich will being absolute and not tate, 216 Ponn. 331; 88 S. W. 1113 contingent, and the law having made (Tex.) ; De Sauzay v. De Sauzay, 63 a change in heirship between the date So. 273. of the will and that of the testator's 1. Robnett v. Ashlock, 49 Mo. 171. 35G CHAP. I.] WHAT CONSTITUTES A WILL. § 290 as the brief showed, became ill on his journey, was brought back, in fact, and died at home several days after.^ § 290. The Same Subject: Bearing of Extrinsic Evidence in Such Cases. This doctrine of conditional or contingent wills is, on the whole, so rarely invoked, that the bearing of extrinsic evidence in such cases has not been fully unfolded in the decisions. Where a statute mode of execution or re-execution is strictly prescribed, the inten- tion of the testator to make and finally leave at his death a condi- tional will, must appear very clearly on the face of the will. Care- less and inartificial expressions, however, are to be treated with ample allowance, technical informalities disregarded, traces of the testator's intention sought out in every part of the instrument, and the whole carefully weighed together. But as to evidence outside the instrument, and particularly mere declarations and other oral proof, while, doubtless, such testimony is inadmissible to control the construction of the will, or contra- dict its clear expression of intent, it may still be asked whether the court is not at liberty to go outside in case of inevitable doubt, to help resolve an ambiguity. Authority is not explicit on this point; nor perhaps can so extreme a case be found in our modem prac- tice; but certainly such oral proof is not favored, and the court prefers to put its own construction upon the language contained in the will. Yet it is held, and with goo'd reason, that the sur- rounding circumstances of the execution may be shown to aid in ascertaining the true interpretation of the will. Such proof may aid in determining, for instance, whether the testator merely had a particular peril or exposure in view as inducing him to make his will, or, what is more improbable, meant that its effect should de- pend wholly upon death from that peril oir exposure.^ And even 2. Morrow's Appeal, 116 Penn. St. ful expressions of a will is here dis- 440, 2 Am. St. Rep. 616. cussed at much length. From the d:s- 3. French v. French, 14 W. Va. 460. senting opinion one would infer that This subject of admitting extrinsic considerable parol evidence. not evidence to aid in resolving the doubt- legally admissible, was introduced. 357 § 292 LAW OF WILLS. [pAET III. conceding, as we must, that onr Wills Acts exclude all parol evi- dence of recognition, adherence to the will, or ratification after the peril was past (since a republication is required), we see no reason whj the very circumstance that the will in question has never been cancelled, but is produced from proper custody on the testator's death and presented for probate, may not be adduced in favor of its intended validity; just as that circumstance carries weight, where insanity with lucid intervals or coercion is set up against a will. For, after all, conditional wills are of so peculiar a de- scription, and operate usually so disastrously, not to say sense- lessly, that any doubt should be resolved in favor of absolute char- acter and a probate. § 291. Wills may take Effect in the Alternative. Wills may be expressed so as to take effect in the alternative with reference to a stated contingency. As if a testator should execute one will, and afterwards a second will ; and then by a third will or codicil declare that the first will shall be his last will if he dies before a given date, othewise the second will shall be his last will." § 292. Contingency or Condition not to be supplied by Parol Proof. The contingent or conditional wills we have described involve the construction of an instrument whose conditional import ap- pears upon its face. A will duly executed amimo testandi and in form absolute is not to be shown contingent or conditional and in- operative by extrinsic proof. ^ But the rest of the court, while sus- admissible as showing his condition taining the will, contend tlint no tes- of mind when the will was made, limony inadmissible or loosely ad- 4. Hamilton's Estate, 74 Penn. St. mitted afTected their conclusion; and 69. The point of contingency should the report of the case confirms, on the be definitely stated in such a casie, wliole, this impression. And see Kel- and the alternate instruments well leher v. Kernan, 60 Md. 440, where identified. parol proof of the testator's inten- 5. Scwell v. SlinglufT, 57 Md. 537. tion to provide for his daughter in In this novel ease a will was contested anticipritiori of the journey was held on the ground that the testatrix had CHAP. I.] WHAT CONSTITUTES A WILL. § 294 § 293. Operation of Will left to the Discretion of Another. A singular kind of testamentary condition has been sustained in a modern English case. A testator wrote a codicil to his will, which concluded as follows : " I give my wife the option of adding this codicil to my will or not, as she may think proper or neces- sary." The court dc<;ided that a condition or option like this was not illegal nor invalid ; at the same time conceding that one can neither confide to another the right to make a will for him, nor authorize any person to revoke his will after his death.^ And in the pireseiDt instance, the validity of the codicil being treated as con- ditional on the assent of the wife, and the wife dissenting, its pro- bate was refused.^ § 294. Papers which cannot be probated as Wills; Wills merely appointing a Guardian; appointing to a Situation; ex- cluding from Inheritance, etc. There are documents designed for posthumous effect, which can- not be probated as wills for want of the character essential to such dispositions in order to give the court jurisdiction. Thus a paper intended it to be used and probated the question whether his will shall as her will only in the event of lier fundamentally operate, that is, be- dying without issue. The will ex come a will at all or not, sliall de- pressed no qualifieation of the kind; pend upon something to happen after and it was properly held that parol his death. Such a proposition, we evidence was inadmissible to show submit, is open to grave dispute; and such an intent. if titles by succession may legally be 6. That a testator cannot delegate hung up thus at the caprice of a per- to another the power to revoke his son who chooses to leave it for years will after death, see Revocation, post ; or forever uncertain whether he dies 1 Robert. 661; North, Re, 6 Jur. 554. testate or intestate, it is time for 7. Smith's Goods, L. R. 1 P. & D. legislation to prevent intolerable mis- 717. What would have been the effect chief, and at all events protect cred- of such a codicil had the wife died itors of the estate. The least a court before her husband, or too soon after can do in such a case is to promptly to declare her option at all, the court decree probate of the will after the did not consider. But the learned testator's death without waiting for judge took the ground that there is any later contingency to be deter- nothing in the law or common sense mined, and leave its further opera- to prevent a testator from saying that tion to a court of construction. 359 § 295 LAW OF WILLS. [pART III. executed as a last will, which does no more than name a guardian for one's children, and neither disposes of property nor nominates an executor, is excluded from probate.^ But in various American States, where legislation confers upon the probate court original jurisdiction in the appointment of guardians as well as execujtors, and makes special mention of testamentary guardians, besides, a different rule may possibly prevail.^ Xor is the mere written appointment to a situation after one's death a testamentary paper, though duly executed and witnessed.^ 'Nor is a mere written direction tx> have the body cremated.^ ]^or is an instrument regarding simply the adoption of a ehild.^^ In short, a will to operate as such must, as a rule, make or atr tempt a total or partial disposition of property, to take effect at the testator's death, or at least, must name an executor; and it is not enough that the instrument purports to be a will and is ex- ecuted with all the testamentary formalities, when it accomplishes nothing of a testamentary character.^ § 295. The Same Subject: Wills which merely dispose of Real Estate. The old English rule founded ecclesiastical jurisdiction essen- 8. Morton's Goods, 3 Sw. Tr. 422. that this was no will; that the de- 9 Concerning testamentary guar- ceased died intestate, and that con- dianship, etc., see Schoul. Dom. Rel. sequently this son was entitled to §§ 287, 290. And see Meyer, Re, 131 share in the distribution. Coffman v. N. Y. S. 27 (probated). Coffman. 85 Va. 459, 17 St. Rep. 69, 1. Thorncroft v. Lashmar, 2 Sw. & 2 L. A. R. 848, 8 S. E. 672. Tr. 479. As to a peculiar paper known as a 2. Meade's Estate, 118 Cal. 428, 62 "nomination paper," admitted as Am. St. Rep. 244, 50 P. 541. testamentary, see Baxter's Goods, P. 2a. Chehak v. Battles, 133 Iowa, (1903) 12. And see Seymour v. 107, 110 N. W. 330. Sanford. 86 A. 7, 86 Conn. 516 (letter 3. Cf. §§ 297, 298. In a curious to a beneficiary) ; Van Ness's Will, Virginia case a man made a will, so 139 N. Y. S. 485 (a release) ; Spen- called, which purported simply to ex- cer v. Spencer, 79 S. E. 291, 163 N. elude a certain son, for reasons C. 83; Thompson v. Pew, 102 N. E. stated, from participating in his es- 122, 214 Mass. 520 (power of ap- tat<* at his death, and yet made no pointment). diBposition of property. It was held 3G0 CHAP. I.] WHAT CONSTITUTES A WILL. § 296 tiallj upon sucli testamentary acts as affected personal property. Hence it has been ruled in England in times past that a will which disposes of real estate alone cannot upon any pretext be admitted to probate.^ But the later tendency of legislation in that coimtry is to a more uniform system of probate, whether the disposition affects lands or any other species of property ; while in the United States, the policy is to require a probate of all wills, whether re- lating to realty or personalty, or both (together.^ But a will which relates simply to the disposition of foreign real estate should be refused a domestic probate.^ § 296. The Same Subject: Writings which merely revoke. So, too, English courts have hesitated as to admitting papers to probate as testamentary which do no more than manifest the in- tention of revoking a regular will or codicil. Lord Penzance in two recent cases owned the delicacy of a distinction ; but concluded, that while one duly signed and attested memorandum which did something more than revoke a will might be deemed a will or codicil, another similarly prepared and executed, which, at the foot of a will, said, " This will was cancelled this day," could not be admitted to probate.^ Yet a separate instrument, duly signed and attested, which declares one's intent of revoking a former will, OT all former ones, and that his estate shall be settled according to 4. Drummond's Goods, 2 Sw. & Tr. Act 20 and 21 Vict. c. 77, § 64; 11; Barden's Goods, L. R. 1 P. & D. Shumway v. Holbrook, 1 Pick. 114, 11 335. Even though the instrument Am. Dec. 153 ; Wilkinson v. Leland, should give directions for a sale of 2 Pet. 655, 7 L. Ed. 552; local stat- part of the estate and tlie payment of utes. legacies out of the proceeds, probate 6. Tamplin's Goods, (1894) P. 39. must be refused. Booties Goods, L. 7. Eraser's Goods, L. R. 2 P. & D. R. 3 P. & D. 177. It cannot be de- 40. Cf. Hicks's Goods, L. R. 1 P. & nied that a will which disposes of D. 683, where the memorandum land alone is testamentary, whether which satisfied said further " and as one court or another takes jurisdic- yet I have made no other [will]." tion of it. These cases construe the 20tli section 5. Schoul. Exrs. & Admrs. § 1059 of the Wills Act. See post, Part IV. (Vol. II); 1 Wms. Exrs. 341, 388; as to revocation. 361 § 298 LAW OF WILLS. [pAET III. law, is undoubtedly a will and should be admitted to probate as sucJl^ § 297. Wills Good which simply nominate an Executor; Wills without an Executor. But a will which simply nominates an executor, without giving bim a legacy or making any direct disposition of the property is a good one, and entitled as such to probate.® And if the nomina- tion constitutes a will, the fact that such executor afterwards re- nounces the appointment cannot change the character of the in- strument nor deprive it of probate.^ One who is simply made an executor is clothed by implication with the usual functions per- taining to the office; and as for the property, silence imports a descent and distribution such as the staitute prescribes for intestate estates; though, doubtless, it is expedient that wills of this sort should expressly direct a final settlement after that course. Wills, on the other hand, are pronounced good in modern prac- tice, which make provision for settling the estate but name no ex- ecutor at all.^ § 298. Wills Good which make only a Partial Disposition, or distribute as in Case of Intestacy. Wills, furthermore, are good which make only a partial dis- 8. Bayley v. Bailey, 5 Cush. 245; an executor, which is not signed or Ili^ks's Goods, supra. witnessed in compliance with the stat- 9 Godo]ph. pt. 2, c. 5, § 1; 1 Wms. ute, the will is valid, except for the Exrs. 227; Lancaster's Goods, 1 Sw. appointing clause. Myrick Prob. & Tr. 464; Miskelly, Re, 4 Ir. Eq. (Cal.) 76. 12; Schoul. Exrs. & Admrs. § 1031 2. Wms. Exrs. 7; Schoul. Exrs. & (Vol II); Miller v. Miller, 32 La. Admrs. § 1003 (Vol. II). And see Ann. 437; Barber v. Barber, 17 Hun Brady v. McCrosson, 5 Redf. (N. Y.) (X. Y.) 72; Stewart v. Stewart, 59 431; Myrick Prob. 76, supra. !>!. E. 116, 177 Mass. 493; Mulholland The effect of naming no executor, V. Gillan, 54 A. 928, 25 R. I. 87 (pay- or of renunciation by the executor mont of debts also provided). named, is to admit the will to pro- 1. Jordan's Goods, L. R. 1. P. & bate; the court constituting an ad- D. 555. niinistrator with the will annexed Where a will, executod in due form, for the emergency. Schoul. Exrs. & is followed by a clause, appointing Admrs. § 1122 (Vol.11). 362 CHAP. I.] WHAT CONSTITUTES A WILL. § 299 position of one's property ; for, wliother it be tlirough legal opera- tion of a will or because the testator so intended, one may die tes- tate as to a portion of bis estate and intestate as to the residue.* And one may by his will expressly provide either that the whole or some spe<3ific portion of his property shall descend and be dis- tributed according to (th© local statute, as though ho died intestate.* § 298a. Will Good, notwithstanding Blank Spaces, Erasures, etc. A will is not invalid because blank spaces are left in the body of the instrument, if the instrument itself be coherent and consistent.^ As for interlineations or erasures, 'these if made after execution do not affect the will except pro tanto, and th© presumption is that they were made before execution.® § 299. Wills executed under a Power. Attention was formerly bestowed in England upon wills ex- ecuted under a power of appointment; the general rule being, tha.t the instrument creating the power ought to be followed as to the mode of exercising it.' But the erroneous exercise of a power is held to operate as a will if the person had a right to dispose of th© fund.^ Such questions seldom occur in American practice ; * and English legislation now sanctions the broad principle favored by our policy, that appointments by will in exercise of any power, re- quire for their validity the same formalities of execution and at- 3. Schoul. Exrs. & Admra. § 1250. W. 129, 173 Mo. 59; Rowan's Estate. But the presumption is that a testa- 83 A. 429, 234 Penn. 584 (trifling tor means to dispose of all his prop- changes). ertj' by the will. See § 490, post. 7. Temple v. Walker, 3 Phillim. 4. Lucas V. Parsons, 24 Ga. 640, 71 394. A wife might by virtue of a Am. Dec. 747. power execute a will without her hus- 5. Barnewell v. Murrell, 108 Ala. band's consent, by way of exception 366, 18 So. 831; 73 S. W. 129, 173 to the rule. See supra, § 64; 1 Wms. Mo. 59. Exrs. 384. 6. 83 N. Y. S. 650; 6 Dem. (N. Y.) 8. Southall v. Jones, 1 Sw. & Tr. 162; Jersey v. Jersey, 110 N. W. 54, 298. 146 Mich. 906. See § 334, post. And 9. See Porter v. Turner, 3 S. & R. see Southworth v. Southworth, 73 S. 103. 863 § 299b LAW OF WILLS. [PAUT IIL testation as other wills, and nothing beyond, notwithstanding any terms which may have been employed in creating the power/ § 299a. Proponent of a Will must prove its Execution. Upon the proponent of a will rests the duty of proving the in- strument to have been duly executed,^ as well as its validity for probate within the jurisdiction in other essential respects. § 299b. Valid and Invalid Provisions. Where valid and invalid provisions are inseparable in a will all go down together wherever probate and establishment are sought. A will cannot be adjudged valid as to some legatees and invalid as to others.^ But it is otherwise with separable pro- 1. Stat. 1 Vict. c. 26, § 10; Crook- 2. Schoul. Exrs. & Adms. § 1073 enden v. Fuller, 1 Sw. & Tr. 70; Hub- (Vol. II) ; supra, § 170. bard v. Lee, L. R. 1 Ex. 255, 13 W. 3. Burke v. Burke, 102 N. E. 293, R. 394; Blackburn, Re, 43 Ch. D. 75; 259 111. 262; Croker v. Williamson,, Huber, Re, (1896) P. 209; Wrigley 102 N. E. 588, 208 N. Y. 480. V. Lowndes, P. (1908) 348. 4. Cf. §§ 248-250, supra. 364 CHAP. II.] SIGNATURE BY THE TESTATOR. § 300 CHAPTER II. SIGNATURE BY THE TESTATOR. § 300. Statute Requirements as to Signing; English Rule. In England, as we have already seen, a will of personal prop- erty was valid without any signature by the testator, until the statute of 1 Vict. c. 26 came into operation ; that is to say, if made before January 1, 1838 ; and whether the will was in the hand- writing of the testator or of some other person duly authorized by him under such circumstances, the rule was the same.^ But under this later statute the prescribed formalities apply equally to wills of real and personal property.^ On the other hand, the Statute of Frauds ^ had for more than a century and a half required that all devises and bequests of lands or tenements should be in writing, signed by the testator, or by some other person in his presence, and by his express direction, and should be attested or subscribed in his presence by three or four credible witnesses.* The modem statute, 1 Vict. c. 26, making the word '' will " comprehend all testamentary disposi- tions, and using the convenient terms " personal estate " and " real estate," to denote the two grand divisions of property, declares that no will shall be valid unless in writing, and signed at the foot or end thereof by the testator, or by some other person in his pres- ence, and by his direction ; and such signajture shall be made or acknowledged by the testator in the presence of two or more wit- nesses present at the same time, and such witnesses shall attest and. shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.'' It is under this latter statute 1. Salmon v. Hays, 4 Hagg 382; 1 omitted from this clause of the fa- Wms. Exrs. 68. mous statute, but found in other 2. Stipra, § 253. parts of it. See Lord Alvanlcy, in 3 3. 29 Car. II. c. 3, § 19. Ves. Jr. 661. 4. The word "hereditaments" is 5. Stat. 1 Vict. c. 36 (1837). 365 § 301 LAW OF WILLS. [part III. that tlie modern Englisli cases which deserve our chief study are ranged. § 301. Statute Requirements as to Signing: American Rule, The policy of the older Statute of Frauds in this respe'ct has strongly impressed the testamentary jurisprudence of our several States^ But, admitting local variations as to the number of attesting witnesses required, and, of course, local exceptions of principle, our American legislatures insist, at this day, upon a formal signature and attestation to each will, codicil, or testament,® regardless of the character of the property embraced under the disposition, and to much the same effect as the English Statute of 1837; but, on the whole, with less nicety of expression. The Mas- sachusetts code, for instance, prescribes for each testator a will in writing, " signed by him or by some person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses." ^ The New York statute pronounces more explicitly for subscription by the testator " at the end of the will " ; adding further provisions for making or ac- Icnowledging the signature in presence of the witnesses.^ Other States employ still different language in their respective codes. Of the peculiar virtue ascribed to the holograph wills,® even to this day, in various States, some of whose legislatures insist, neverthe- less, that the writing shall be signed by the testator himself, we have already spoken.^ In any case the fact that the testator has wholly written out his own will imports its genuineness. In short, 6. The few instances whore nuncu- 30; 142 N. Y. S. 829. If no " signa- pative wills are still permitted fol- tiire " by testator, the will is invalid low a different rule. See c. IV. post; though witnesses sign. 77 N. Y. S. 37 S. E. 707, 112 Ga, 450. 651. And see Stinson's Estate, 81 A. 7a. 77 Ohio St. 104, 17 L. R. A. 212, 232 Penn. 230. (N. S.) 353, 82 N. E. 1067; Breiigle 8. N. Y. Rev. Stats. 1875, Vol. 3, V. Tucker, 80 A. 224, 114 Mo. 597; c. 6, p. 63. Avaro v. Avaro, 138 S. W. 500. 235 9. Or those in a testator's own Mo. 424; Kolin's Estate, 137 N. W. handwriting. 73.-5. 172 Mich. 342; Fcdey's Will, 136 • 1, t^upra, § 255; 43 La. Ann. 319. K. Y. S. 933; 102 N. E. 212, 259 III. 3GG CJIAP. II.] SIGNATURE BY THE TESTATOR. § 303 as local codes differ, our present investigation must be held strictly subject to local variations of statute requirement, wherever the es- sential formalities of execution come up for discussion ; for in each State the local statute requirements must be carefully complied with.2 § 302. Whether Execution signifies more than Signing, or in- cludes Attestation. In general phrase one may speak of the proper execution of a will as involving the full legal formalities of a signature and at- testation ; and for convenience we have usually so employed that word in these pages.^ But some authorities appear to apply the' words " execution " and " attestation " separately, as though the' former term related only to the testator's own act; and use "ex- ecution and attestation " to denote the whole formality.* § 303. Will may be signed by the Testator, or his Mark made,. What, we now inquire, amounts to a " signing " by the testator so as to satisfy the statute requirement on the subject of wills ? To write out one's own name in full is doubtless the safest course, as well as the most natural ; for such compliance best indicates a ra- tional mind, free will, and physical power, at the date of execu- tion. But, undoubtedly, the making of his mark or cross by the testator will satisfy the statute ; and that, too, as various cases rule, notwithstanding he was able to write at the time.^ Thus has it been held in cases arising under the Statute of Frauds; ^ and those 2. §§ 252-254. 5. Baker v. Dening, 8 Ad. & El. 94; 3. Statute 1 Vict. c. 26, § 9, sane Sprague v. Luther, 8 R. I. 252; Chase tions this extended use of the word. v. Kittredge, 11 Allen, 49, 87 Am. It declares that no will shall be valid Dec. 687; Higgins v. Carlton, 28 Md. in writing "and executed in manner 115, 92 Am. Dec. 666; 28 So. 687, 127 hereinafter mentioned; " and then Ala. 14; Corcoran's Will, 129 N. Y. proceeds to describe the details of S. 165; Cozzen's Will, 61 Penn. St. signing, acknowledging, and attest- 196; 2 Curt. 325; Jenkins' Will, 43 ing the will. Wis. 610; 19 Mo. 609. 4. See 1 Jarm. Wills, title to c. 6, 6. See 1 Wms. Exrs. 76; Baker v.. etc. This narrower sense of the word Dening, 8 Ad. oc El. 94. " execution " is not to be commended for modern practice. 303 LAW OF WILLS. [part III. decisions apply equally to the Statute of Victoria, which is ex- pressed in language almost identical ; as also to most American codes. Other modes of signature are permitted besides. Accord- ingly, the will has been upheld where the testator made a mark, with his hand guided or not guided by another ; ^ or where the tes- tator wrote only his initials ; ^ or where his full signature was ef- fected by the aid of another person who guided his hand ; ^ or where he stamped his name ; ^ or where only the Christian nam© or surname was signed ; ^ provided that in all such cases the tes- tator's knowledge and free consent and completed testamentary purpose accompany the act, which here is an act of signature by himself.^ It is obvious that a testator may know how -to write and yet at the time of execution be physically unable to do so.* The statute is satisfied, moreover, where, the testator having re- quested another to sign the paper as his will for him, the latter complies under the strict precautions of the code.^ Or where, in 7. Wilson V. Beddard, 12 Sim. 28; Baker v. Dening, supra; Jackson v. Van Dusen, 5 John. 144, 4 Am. Dec. 330; Nickerson v. Buck, 12 Cusli. 332; Upchurch v. Upchurch, 16 B. Mon. 112; Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372; 103 Minn. 286, 114 N. W. 838, 140 111. 649, 33 Am. St. Rep. 265, 30 N. E. 383; 107 Iowa 723, 70 Am. St. Rep. 228, 77 N. W. 467; 130 N. Y. S. 1059; 43 Wis. 610. 8. Savory, Re, 15 Jur. 1042. Or where he affixed a seal stamped with his initials, and pronounced it his " hand and seal." Emerson's Goods, L. R. 9 Ir. 443. 9. Vandruff v. Rinehart, 29 Penn. St. 232, 74 N. Y. S. 1045; Wood v. Trust Co., 61 A. 757, 27 R. I. 295; Stevens V. Van Cleve, 4 Wash. (U. S. Cir.) 262. In Wilson v. Beddard, 12 Sim. 28, some stress was laid upon the circumsLance that the testator, before having his hand guided to exe- cute the paper, m;ide some faint strokes upon each of the sheets. 1. See .Jenkins v. Gaisford, 3 Sw. & Tr. 93. 2. Knox's Estate, 131 Penn. St. 220, 17 Am. St. Rep. 798, 18 A. 1021. " Custom controls the rule of names, and so it does the rule of signatures." lb. 3. A will is not legally executed where the testator's hand is guided by another who holds it while he does not know what is being done. Whit- sett V. Belue, 54 So. 677, 172 Ala. 256. 4. See Guilfoyle's Will, 96 Cal. 598, 22 L. R. A. 370, 31 P. 553. 5. Vernon v. Kirk. 30 Penn. St. 218; Abraham v. Wilkins, 17 Ark. 292; 49 Neb. 157, 76 Neb. 823, 107 N. W. 1016, 76 S. W. 361. 25 Ky. Law. 763; Dombrowski's Estate, 125 P. 233, 163 Oal. 290. ;g8 ■CHAP. II.] SIGNATURE BY THE TESTATOR. § 304 ithe testator's presence and by his express direction, another person under the same precautions stamps the will by way of signature with an instrument on which the testator has had his usual signa- ture engraved for convenience in stamping letters or otiier docu- ments requiring his signature.^ For under the Statute of Frauds, as well as the Wills Act of Victoria, and various codes in the United States, provision is made for the signing of the will, not only by the testator himself, but also by some otheir person in his presence and by his express direction. '^ There are States, however, where this signing by another is placed by legislation under nar- rower restraints.^ § 304. The Same Subject. It has been held in some instances that where the testator signs by initials o-r under an assumed name, such a signature may satisfy the statute by passing as the testator's mark.^ However this may be, an imperfect or indistinct subscription of the testator's name to the will may be regarded as his mark.^ There are American statutes, furthermore, which expressly authorize the signature by mark.^ But it should still be observed that the mark or indistinct 6. Jenkins v. Gaisford, 3 Sw. & Tr. 1 Wms. Exrs. 76; 15 Jur. 1042. 93. Ergo, such a stamp the testator 1. Hartwell v. MoMaster, 1 Redf. may use to make his own signature, (N. Y.) 389. instead of signing with the ordinary 2. Smith v. Dolby, 4 Harring. 350; writing materials; the essential Burford v. Burford, 29 Penn. St. 221. question being whether such an in- The Pennsylvania act referred to strument was used animo testandi. in Burford v. Burford, supra, was In the present case the testator was passed in 1848 under singular cir- paralyzed, and the stamp was made cumstances. Contrary to the current for him on that account. of English and American authority, 7. Supra, §§ 300, 301; Riley v. the Pennsylvania courts took early Riley, 36 Ala. 496. ground that signing by mark or cross 8. McElwaine, Re, 3 C. E. Green, would not give the will validity. (N. J.) 499; Vines v. Clingfost, 21 Cavett's Appeal, 8 W. & S. 21. 5 Ark. 309. Assent and knowledge by Penn. St. 21. 441; Greenough v. the testator without his "express Greenough, 11 Penn. St. 489. The direction," are insufficient. 48 Neb. statute thus strictly constructed was €08, 67 N. W. 470. the act of 1833, taken from 29 Car. 9. R^dding's Goods, 2 Robert. 339; II. § 2, under which it had been re- 24 309 § 305 LAW OF WILLS. [pART III. subscription by the testator should have been intended by him as his signature.^ If the testator makes his mark to the will as his own, the fact that another wrote the testator's name wrong against the mark does not invalidate it/ § 305. A Prudent Testator will write out his own Signature if he can. But while the signature by mark, by a stamping device, or by the hand of some other person in the testator's presence, by his ex- press direction, may satisfy the letter of legal requirement, no one who is competent to write out his own signature executes his will wisely, unless he either signs thus or shows some good reason -to the contrary, which can be explained at the probate. For the bur- den of establishing the instrument he leaves behind is sufficiently great, even though he should cast no needless discredit upon it. The uncommon modes of signing naturally import illiteracy, fee- bleness, or dependence upon others, and easily encourage the im- putation of fraud, imposition, or error in the transaction, unless very cautiously pursued.^ In Pennsylvania, and some other peatedly decided that a signature by doubting that he fully intended a mark was sufficient. The above cases signature. lb.; § 313. And where the were justly criticized in Vernon v. stroke is shown to have been made Kirk, 30 Penn. St. 218, where it was with an arrested intention of sign- said: " If a mark was not a signature ing, it cannot amount to an execu- within the meaning of the statute, tion. Plate's Estate, 23 Atl. 1038, then those unable to write could not 148 Penn. 55. sign, and signing by another was per- 4. Rook v. Wilson, 142 Ind. 24, 51 niitted only when inability to sign Am. St. Rep. 163, 41 N. E. 311. was caused by the extremity of the 5. Mr. Jarman, writing for English last illness." readers, considers it inadvisable for a 3. On the supposition that a faint testator in these days to sign by mark or marks on the writing set up another, unless physically very weak, as a will did not appear to have been so that he cannot even make his mark, placed there with the intent of sign- Even illiterate persons and para- ing, a will was pronounced invalid in lytics had better sign by mark than Evorhart v. Everhart, 34 Fed. R. 82. sign by another. (See 3 Curt. 752.) Where a testator, who, in his ordi- In short, as he observes, the testator nary condition, can write his name, should conform as nearly as possible makefl such a mark in an unusual to his usual mode. 1 Jarm. Wills, place, there is all the more ground for 110. And see (1891) App. C. 435. 370 OHAP. II.] SIGNATURE BY THE TESTATOR. § 306 States, the testator must sign by his own proper signature, if he is able 'to do so; ^ and though most authorities have ruled less posi- tively on the subject, it seems always proper, where a testator habitually wrote his own name and did not in this instance, for the court, in case of a contest, to try and elicit some explanation, and, if none satisfactory be given, to take the circumstance into account adversely, where other suspicious circumstances of more positive bearing are shown besides. Signing by another is espec- ially liable to doubt and suspicion. Nevertheless, the general rule in the American States is said to be, that the testator may sign by his mark, and that where he does so, it will be presumed that he does it from necessity, either tem- porary or permanent.^ § 306. Local Variations of Rule; Signature by Testator himself and by another distinguished. If the rule on this subject appears rather uncertain, we must first allow for local variations in statute and each legislative policy. Next, we should bear in miud, 'that signature by the testator him- self and signature by another are distinguished in all these codes. There is by no means the same facility accorded for signature by attorney where a will is to be executed as in the ordinary trans- actions of life. If an illiterate but intelligent testator makes cross-strokes with his pen upon the paper, the act of signature is his own; and so, too, where the hand of a testator, who is physi- cally imable to subscribe without assistance, is guided suitably by 6. 5 Penn. St. 21, 441. (~f. Cnz- the extremity of his last illness; and zen's Will, 61 Penn. St. 196. And to bring the will within the exception, see Butler v. Benson, 1 Barb. (N. Y. ) there must be two witnesses to show, 526; Fritz v. Turner, 46 N. J. Eq. (1) the inability of the testator to 515, 22 A. 125. sign, (2) his inability to direct an- 7. 1 Redf. Wills. 205, note, citing other to sign. Rudff's Appeal, 26 Upchurch v. Upchurch, 16 B. Mon. Penn. St. 219. And see 9 Penn. St. 102; and Ray v. Hill, 3 Strobh. 279. 54. Such "inability" to sign is not The Pennsylvania statute requires to be harshly construed. Diehl v. the testator to sign, or direct another Eogers, 169 Penn. St. 316. to sign for him, unless prevented by 371 § 306 LAW OF WILLS. [pART III. another. Wherever, in truth, the act is the testator's own act, animo tcstandi, though with the assistance of another, it is not necessary to prove any express request for assistance on his part.^ And under any circumstances, a testator signs his will, where he makes the physical effort, and perfomis the act, even though his hand be steadied or guided by another, if something is produced upon the paper, sufficient to identify his signature, and his own purpose to sign accompanied the action, while he was assisted and not controlled.* But the mere fact that the testator's name is written, or his mark made by another person, affords no presumptive evidence that it was done at his request and in his presence.-^ As to this act of another under authority from the testator, the statute direction, usually imperative and strict, must be carefully observed ; for wherever the " signing " is, so to speak, not the testator's own, but something which he is to adopt, great hazard is incurred.^ A sub- scription, "A. B. for C. D., at his requesit," is held a sufficient form to be followed ; ^ and under many State codes this form would doubtless be dispensed with, upon due proof of the surrounding circumstances, showing that all was rightly and properly done. But there are American codes which insist upon more than this ; 8. Van Hanswick v. W^esp, 44 Eq. 515, 22 A. 125. Whitsett v. Belue, Barb. 494; Vandruff v. Rineliart, 29 54 So. 677, 172 Ala. 256. Penn. St. 232. 1. Greenough v. Greenoucrh, 11 Where a testator subscribes by Penn. St. 489, 51 Am De;. 567. And mark, it is the mark, and not the see Munhall's Estate, 8.3 A. 66, 234 name written round it by another, Penn. 169 (nuncupative will), which constitutes the subscription; 2. If a testator makes his own and hence it is immaterial whether mark, he signs; and the additi(m of such name is written before or after the words " his mark " by a stranger tlie mark is made. Jackson v. Jack- does not impair the validity of his son, 39 N. Y. 153. Tlie writing of signature. Grubbs v. McDonald, 91 the testator's name w-ith the words Penn, St. 236. And see Jackson v. "his mark" to identify a subscrip- Jackson. 39 N. Y. 153, tion by mark, is not the "signing of 3, Vernon v. Kirk, 30 Penn St. liis name by liis direction," etc., under 218; Abraham v, Wilkins, 17 Ark. the statute. Tb. 292. See Fritz v. Turner, 46 N. J. 172 CHAP. II.] SIGNATURE BY THE TESTATOR. § 307 that of New Jersey, for instance, whose policy guards with great jealousy the making of a will without the testator's own signature. In this State, the statute providing that " the signature shall be made by the testator, or the making thereof acknowledged by him in the presence of two witnesses," it is held insufficient that an- other should write the name at the request of the testator.^ And generally speaking, there must be no ambiguous proof of authority to sign on the testator's behalf ; for " express direction," and not indirect permission, is the usual intendment of our codes.* § 307. The Same Subject: English Rule. Under the Statute of Victoria it has been held that where the testator duly acknowledged his signature to the attesting witnesses, this is prima facie sufficient, without proving that the signature is in his handwriting or that it was made by some other person in his presence and by his direction.^ And the person who signs for the testator, at the latter's express request, may sign the will for him, not in tlie testator's name, but using his own name.^ But this sig- nature in one's presence by a third party must, in general, be ac- 4. McElwaine, Re, 3 C. E. Green, that one signed in the testator's (N. J.) 499. In this case the tes- presence and by his express direction, tator adopted the signature as his is quite liberally treated. Haynes v. before two witnesses, but did not Haynes, 33 Ohio St. 598, 31 Am. Rep. " acknowledge the making thereof." 579. See also Peake v. Jenkins, 80 This decision was a harsh one, and, Va. 293. as the court admitted, set aside, in 5. Waite v. Frisbie, 45 Minn. 361, fact, what the deceased doubtless had 47 N. W. 1069. intended as his will; it proceeded up- 6. Gaze v. Gaze, 3 Curt. 456. on a close interpretation of a strict 7. Clark's Goods, 2 Curt. 329. Here statute. Cf. Smith v. Harris, 1 the will ran, " Signed on behalf of Robert. 262, which tends to the con- the testator, by me. A. B ," etc. And trary view. see 6 Notes Cas. 528, cited in 1 Jarm. And see Vines v. Clinfost, 21 Ark. Wills, 79, where the person who 309, cited post, § 308. Under the signed for the testator did so by writ- Missouri code strict formalities are ing at the foot, " This will was read prescribed where one signs tlie tes- and approved by C. F. B., by C. C, tator's name at his alleged request. in the presence of," etc., and then McGee v. Porter, 14 Mo. 611; 19 Mo. followed the signatures of the wit- 609; 21 Mo. 17. But in Ohio proof nesses. These wills were held good. 373 § 309 LAW OF WILLS. [pART IIL companied by some act or word on the part of tlie testator, 'to show that it was made at his request.^ § 308. Testator's Name may be affixed by a Subscribing Wit- ness. A testator's name may, at his request, and in his presence be affixed to his will by a competent subscribing witness, as well as by any third party ; and the effect of this is the same as though the name were written by the testator himself.^ Some codes make it imperative that any one who shall sign the testator's name by his direction, shall write his own name as a witness and state that he signed at request ; though where the testator holds the pen and an- other person guides it, the act, as we have seen, is the testator's own, and such writing and statement by the witness is not neces- sary.^ The English rule also permits the signature for the testator in his presence and by his express direction to be made by one of the attesting witnesses.^ § 309. Seals are dispensed with; Sealing is not "Signing." A seal is not indispensable to a will in modem times, unless, as rarely happens, the local statute insists upon it.^ Xor is a will 8. Cf. 13 Law Times, 643, and 20 1. Vines v. Clingfost. 21 Ark. 309; Law Times, 757. According to Mr. McGee v. Porter, 14 Mo. 611, 55 Jarman, it is well where a third per- Am. Dec. 129. One who signs the son signs for the testator, to have it name of the testator at his request in the name of the testator rather may also be one of the subscribinc; than of the amanuensis, who should witnesses to the will. Leonard, Ex be thus designated in the attestation parte, 39 S. C. 518, 22 L. R. A. 302, clause. 1 Jarm. 110. 18 S. E. 216. 9. Herbert v. Berrier, 81 Ind. 1; 2. Bailey's Goods, 1 Curt. 914; Robbins v. Coryell, 27 Barb. 556, 6 Smith v. Harris, 1 Robert. 262. Dem.(N. Y.)262; 70 P. 489, 30 Wash. 3. Avery v. Pixley, 4 Mass. 460; 239; Riley v. Riley, 36 Ala. 496. But Piatt v. McCullough, 1 Mcl-/ean, 69; see McElwaine Re, 3 C. E. Green, Arndt v. Arndt, 1 S. & R. 256; Doe 499, under the peculiar statute of v. Pattison, 2 Blackf. 355; Grubbs New Jersey. v. :McDonald, 91 Penn. St. 236. 374 CHAP. II.] SIGNATURE BY THE TESTATOR. § 300 rendered invalid for want of a seal, oven though the attestation clause should speak of its being " signed and sealed." In various American States, indeed, the use of a seal has lost most of the effi- cacy our common law once bestowed upon it. But testaments are still signed and sealed in very many instances ; and this solemn but simple precaution may often prove a sensible one for allaying doubt, where powers touching real estate are expressly given, ^ At the same time, the unnecessary addition of a seal does not change a will into a deed, nor justify treating the instrument as partly a will and partly a deed when it was obviously meant as a will alone.^ Sealing was once thought a sufficient substitute for signing where wills were to be executed ; but that doctrine is no longer ten- able ; ^ for it is clear' that signing and sealing are different acts, though capable of being united.* § 310. Misnomer or Discrepancy in the Signature, etc. A document signed as one's will through some palpable error or fraud, when it was in reality another's will ot no will at all, can- not, of course stand.^ But if the right instrument is intentionally signed as one's own will, a mere misnomer or discrepancy of sig- nature does not vitiate the paper, provided its genuineness be duly established. As where the will of T. D. describes the testator 4. 8 Mo. App. 66. Wms. Exrs. 77; 1 Jarm. Wills, 78. 5. The lex loci as to the method of It may be shown by oral testimony conveying land should not be unheed- that the seal on a -will was affixed by ed. In New Hampshire sealing is the testator's direction. Pollock v. required to a will of real estate, ac- Glassell, supra. cording to Rev. Stats. 1843, c. 156, § 8. See Emerson's Goods, L. R. 9 Ir. 6. So it is with one or two other 443, where a testator affixed a seal States. 1 Jarm. Wills, 105, Bige- with his initials, placed his finger on love's note. the seal, and called it his " hand and 6. Wuesthoff V. Germania Life Ins. seal." This was deemed a sufficient Co., 107 N. Y. 580, 14 N. E. 811. signing. Here the appointment of a guardian 9. Supra, § 215. A misnomer in was the matter in controversy. the signature may aid in determining 7. See 3 Lev. 1 ; 1 Ves. Jr. 12 ; an issue of forgery. McGuire v. Kerr, Wright V. Wakefield, 17 Ves. 458; 2 Bradf. (N. Y.) 244. Pollock V. Glassell, 2 Gratt. 439; 1 375 § 311 LAW OF WILLS. [part III. throughout by a wrong name, such as C. D. and he signs it by his right one/ Or where against the testator's mark a wrong name is written, the will describing him by the right one.^ Or where the maiden name of a testatrix is interchanged with her married one under like circumstances.^ And generally, where one signs animo testandi, though by a wrong or assumed name.* A signature, whether by name or mark, satisfies the statute, not- withstanding the testator's name does not appear at all in the body of the instiiiment.^ § 311. Position of the Signature; English Rule. The place of signature to the will is insisted upon more strictly by some codes than others. The Statute of Frauds merely required that the will should be " signed " by the testator ; and hence, a will, intended as such, and expressed in the testator's own hand- writing, which commenced " I, A. B., do declares this to be my last will," etc., was treated as made in literal compliance with the act, though no signature was added at the end.® But the mischief of setting up holographic wills which were likely enough to have been no more than the rough sketch of a will was apparent enough, when the Statute of Victoria was framed. That statute, as we have just seen, designated the foot or end of the will, as the place where the testator should write his signature.^ Doubts soon arose, however, in the construction of 1 Vict. c. 26 (1837), on this very point of a signature at the foot; for testa- tors would carelessly sign far below where the will itself was writ- ten, or at the foot of 'the attestation clause, or in other out of the way places; and the question had to be decided whether the statute 1. Doucp's Goods, 2 Sw. & Tr. 593. 5. Bryce's Goods, 2 Curt. 325. 2. Clarke's Goods, 1 Sw. & Tr. 22. All such errors, discrepancies, or 3. lb. omissions, may be corrected, recon- 4. 1 Jarm. Wills, 78; Redding's ciled, or supplied by proof alinude. Goods, 2 Robert. 339; 5 Notes Cas. 6. Pre. Ch. 184; 3 Lev. 1; Coles v. 553 ; Long v. Zook, 13 Penn. St. 400. Trecothick, 9 Ves. 249 ; 1 Jarm. Wilis, See also Tyler v. Theilig, 52 S. E. 606, c. 79; 1 Wms. Exrs. 78. 124 Ga. 204 (both foreign and native 7. Supra, § 300. Burname) . 376 CHAP. II.] SIGNATURE BY THE TESTATOR. Ill was thus complied with or not. At first inclined to a liberal in- terpretation, the courts soon settled upon a strict one, on the ground that the policy of the legislature was to guard against fraudulent additions to a will after the testator had executed it; and in consequence or, at least, that no disposition fol- lowing the signature can avail as a will. Armant's Will, 43 La. Ann. 310, 26 Am. St. Rep. 183, 9 So. 50. Cf. § 255, supra, and cases cited. 4. Some late New York cases apply the local statute, which requires the will to be signed and witnessed at the end, so as to reject what may hap- pen to follow these signatures as constituting no part of the will. A will was written upon two sides of a piece of paper and signed by the wit- nesses at the bottom of the first and at the top of the second side. An important provision followed these last signatures, and it was held that the execution did not embrace it. Hewitt's Will, 91 N. Y. 261. An im- jwrtant provision upon the fourth page of a will following a signature and attestation at the foot of the third page was likewise rejected in 180 CHAP, II.] SIGNATURE BY THE TESTATOR. § 312 Some American cases seem to consider tliat the testator's pur- toto from the probate; nor would the court consent to treat that provision as an interlineation, nor as valid in part and invalid in part. O'Neil's Will, 91 N. Y. 516. See also Conway's Will, 124 N, Y. 455, 11 L. R. A. 796, 28 N. E. 1028, where (three judges dissenting) an execution at the end of the first page where the will was •continued to the second page, with reference back was held invalid. 95 N. Y. 145 ■was here distinguished. See further Whitney's Will, 153 N. Y. 259, 47 N. E. 272, 60 Am. St. Rep. 616, where the will was signed at the foot of the printed blank to which other slips were attached. So, too, in Andrews' Will, 56 N. E. 529, 162 N. Y. 1, 48 L. R. A. 662, 76 Am. St. Rep. 294, a will with several pages could not be read consecutively without skipping backward and for- ward as to the signature, and probate was refused. The recent case of Field's Will, 204 N. Y. 448, 97 N. E. 881, limits, how- ever, and distinguishes these two last cases, allowing probate where on a short form blank, the testator had fastened six slips of bequests which could be read in dtie order, as in the month slips on a calendar. " Form," says the court, " should not be raised above substance in order to destroy a will; " the substantial thing being whether a paper reads straight for- ward and without interruption from beginning to end. And see Stinson's Estate, 77 A. 807, 228 Penn. 475 (skipping a page and then going back on a blank page to finish and exe- cute). The logical end of the dispo- sition, wherever it appears, aad not 38 necessarily the point farthest re- moved from the beginning, is the "end." lb. Cf. 142 N. Y. S. 1074 (not " at end "). In Kentucky, it is held that where all the names must appear at the end of a will, a signature by the testntor, so separated by turning a sheet from that of the witnesses and from the body of the will itself, that fraudu- lent additions might be made to the instrument, is not a valid execution. One object of such a statute, it is here said, is to prevent fraudulent ad- ditions from being made to a will. Soward v. Soward, 1 Duv. 126. But no rule can be laid down as to what is an unreasonable or unnecessary blank space in such cases. lb. We apprehend that under legisla- tion like the above, American courts of probate will show no less solici- tude than the English tribunals, to protect a clause crowded at the foot of a will about the signature of the testator, without too literal a con- struction of the statute, provided the fact of its insertion before the execu- tion of the will clearly appears and no suspicion of bad faith or reckless error in signing clings to the trans- action. Where the final clause of a will which appoints an executor appears below the testator's signature, the question of whether the will is in- valid, or such clause surplusage, de- pends upon when it wa.s inserted. 6 Dem. 298. But if the will was all prepared at one time for execution, and the testator's signature precedes the final clause which appoints executors, the will is not signed " at 1 § 312 LAAV OF WILLS. [pAET III. pose and intention to sign must appear on the face of the will ; ^ but tiis is perhaps too narrow a view to take. Where, indeed, the testator's name was written only at .the commencement of the will, the end being left blank, and nothing on the face of the paper indi- cates affirmatively that he intended it as his signature, the pre- sumption may well be that in the legal and natural sense he did not sign.® But his subscription at the end, not of the testimonium, but of the attestation clause (or in the midst of the latter) indi- cates the contrary rather;^ and such a subscription accompanied by attestation is even held to comply with a statute which requires the subscription to be " at the end of the will." * The acknowledg- ment of the instrument before attesting witnesses (who subscribe their names), without alluding to any further act of signing or otlierwise qualifying the execution, may now be taken as a strong circumstance in favor of intended signature, wherever the maker's name may be found ; for if he fails to sign in due form, it is prob- ably through inadvertence; and, vice versa, his signature without attestation can avail little in modem policy. And there seems no reason why the surrounding circumstances of execution may not be investigated to resolve a doubt and conclude the issue justly by the evidence.^ For after all these statute precautions the integrity the end thereof," within the require- 19. A signature is placed " at the ment of the local statute. Wineland's end" of a will sufficiently, even Appeal, 118 Penn. St. 37, 4 Am. St. though the testator, before signing Rep. 571, 12 A. 301. See, further, in the proper place, wrote after the Taylor's Estate, 79 A. 632, 230 Penn. attestation clause a direction that his- St. 346; Stinson's Estate, 77 A. 807, executor need not give bond; this be- 228 Penn. 475. ing deemed no essential part of the 5. See Waller v. Waller, 1 Gratt. will itself. Baker v. Baker, 51 Ohio 454; Graham v. Graham, 10 In-d. St. 217, 37 N. E. 125. 219; 1 Wms. Exrs. 77, Perkins's note. 9. Where the statute requires the 6. Ramsey v. Ramsey, 13 Gratt. will to be signed " at the end " and 664. Cf. Watts v. Public Admr. 4 witnessed, and it appears in a case Wfjnd. 168. that the testator alone signed, and 7. Hallowell v. Hallowell, 88 Ind. called later for his will " to finish 2r,]. See 190 Penn. St. 382, 42 A. it," added a bequest and then had the 1020 (imperfect execution). witnesses sign, without signing anew, 8. Youngor v. DufTie, 94 N. Y. 535; the whole will must be held invalid. Cohen's Will, 1 Tuck. 286; 5 Dem. Glancy v. Glancy, 17 Ohio St. 134. 382 CHAP. II.] SIGNATURE BY THE TESTATOR. § 314 and genuineness of tlie instrument should be the main concern at the probate, and whatever the testator may have added to his will after a full attestation clause may usually be left out of probate as surplusage and immaterial.^ § 313. Whatever the Place, a Signing must have been intended. Whatever the local position of the signature by statute permis- sion, the true principle is, that it must have been placed there with the design of finally authenticating the instrument, no further sig- nature on the maker's part being contemplated. A name origin- ally written without such final design may, it is true, have that final effect afterwards, by the testator's subsequent adoption of the signature as his final one; and such would probably be pre- sumed his intention if he acknowledged the instrument as his will to the attesting witnesses without alluding to any further act of signing.^ But if, on the other hand, ithe testator intended, to the last, another signature which he never made, the will should be considered as unsigned ; ^ and so, too, it would appear, if the testa- tor supposed no signature at all essential ; to say nothing of the will's incomplete execution in other respects which the statute made essential. § 314. One Signature or more for Several Sheets. One signature may suffice for several sheets of paper; and tho natural, if not the imperative place for signing is where the will ends on the last sheet; though, as a precaution against fraud, a maker sometimes places his name on the consecutive sheets. The fasitening together of tlie sheets as found at the testator's death, is 1. Baker v. Baker, supra; 65 A. v. Eamsey, 13 Gratt. 664. See Phe- 799, 216 Penn. 350; O'Neil's Will, lan's Estate, 87 A. 625, 82 N. J. Eq. 91 N. Y. 516. 316 (signature in the attestation 2. 1 Jarm. Wills, 79. SemUe, the clause) ; Young's Will, 141 N. W. 226, intention to sign again may be shown 153 Wis. 337. by parol evidence, where doubt is left 3. 1 Jarm. Wills, 79. This point on the face of the will, as a founda- was apparently decided in Right v. tion (for admitting proof aliunde. Price, 1 Dougl. (Mich.) 241. Eight V. Price, 1 Dougl. 241; Ramsey 383 § 317 LAW OF WILLS. [pAET III. presumed to be the same as when the will was executed ; and in absence of proof to the contrary, their identity and consecutive order should be taken accordingly, as constituting tlie full and genuine will of the deceased,* But the question whether or not all the sheets of the will as propounded were attached at the time of signature, or there has been a fraudulent or informal change since, is to be decided as an issue of fact upon all the evidence.^ Where the testator signs the will on several sheets, or in different places, the last signature, if at the end of the will, is the efficient one.^ § 315. One Signature where Will has been written by Portions. Where, again, it appears that a will has been written by por- tions, various clauses being composed and inserted at different times, one signature and attestation applies suJfficiently to each and all of the dispositions contained in the instrument as they finally stood at the date of execution.^ § 316. Signatures may be upon Paper fastened to the Will. A valid signature may be made on a separate piece of paper which is sluck or fastened to the body of the will, and contains nothing but the signature and attestation; ^ provided it be shov^rn that the execution was bona fide and regular in other respects, and the paper duly fastened at or before the time of attestation.* § 317. Wills of Blind, Disabled and Illiterate Persons; how made known to them. The civil law required that the written will of a blind person 4. Rees v. Rees, L. R. 3 P. & D 6. Evans's Appeal, 58 Penn. St. 84 ; Marsh v. Marsh, 1 Sw. & Tr. 528 ; 238. Tonnele v. Hall, 4 Comst. 140; Wi- 7. CattralFs Goods, 4 Sw. & Tr. kofT's Appeal, 15 Penn. St. 281, 53 419. Am. Dec. 597; Ela v. Edwards, 16 8. Horsford Re, L. R. 3 P. & D. Cray, 91; Martin V. Hamblin, 4 211; 2 Sw. & Tr. 362; Cook v. T^ra- Strobh. 188; § 284 »upra and cases bert, 3 Sw. & Tr. 46. cited. 9. 32 L. J. Prob. 182; 1 Jaim. 5. Ginder v. Farnum, 10 Penn. vSt. Wills, 79. 98. 384 CHAP. II.] SIGNATURE BY THE TESTATOR, § 317 should be read over to him and approved by him in presence of the subscribing w^itnesses/ Our common law lays down no such imperative rule, but with regard to both blind and illiterate, and all who cannot read what is written out as their will, requires sat> isfactory proof of some kind to the effect that the testator knew and approved of the contents of the will which was executed as his own." Such a will may be read over to the testator before signing, apart from his witnesses; ^ or it may be shown that the contents were correctly made known to him without any formal reading at all;'* provided it appear, on the whole, that the instrument as drawn up and executed constituted his own testamentary disposi- tion as intended by him.^ Less than this, however, is unaccept- able; and where th^ will, without being read over or examined, is signed by the testator upon an assurance that it has been prepared according to Lis instructions, when in point of fact it has not been, 1. 1 Wms. Exrs. 19; Swinb. pt. 2, § 11. 2. lb.; Axford Re, 1 Sw. & Tr. 540; 2. Gas. temp. Lee, 595; Martin v. Mitchell, 28 Geo. 382; Wampler v. Wampler, 9 Md. 540; Day v. Day, 2 Green Ch. (N. J.) 549; 3 Phillim. 455, note; 6 Dem. 478; Worthington V. Klemm, 144 Mass. 167, 10 N. E. 522; Ray v. Hill, 3 Strobh. 297; King V. Kinsey, 74 N. C. 261. Having the will read over in presence of the v^it- nesses and then executing is a good fulfilment of requirements under the New York code, in case of the blind. See Moore v. Moore, 2 Bradf. (N. Y.) "261. 3. Martin v. Mitchell, 28 Geo. 382; Wampler v. Wampler, 9 Md. 540; 2 Dev. Law, 291. 4. 1 Wms. Exrs. 19; Fincham v. Edwards, 3 Curt. 63; 4 Moore P. C. 198; Boyd v. Cook, 3 Leigh. 32; Hess's Appeal, 43 Penn. St. 73, 82 Am. Dec. 551; 11 Phila. 161. See 19 25 38. N. E. 503, 111 N. Y, 624; 57 S. W. 526, 157 Mo. 1, 80 Am. St. Rep 604. We need hardly observe that it be- hooves every testator who is illiter- ate, blind, or otherwise much depend- ent upon the accuracy and good faith of those about him, to be especially heedful that his last wishes are cor- rectly expressed in the instrument which he executes, and that no fraud or imposition is practised upon him. The court, moreover, should take especial care to avoid, in such cases, rulings upon the point of capacity or free will which, though abstractly correct, might mislead the jury. Bull's Will, 111 N. Y. 624. 5. See Perera v. Perera, (1901) App. Cas. 354 (will drawn in strict accord with instructions sufficient) ; Masseth's Estate, 62 A. 640, 213 Penn. 136; Beyer v. Hermann, 73 S. W\ 164, 173 Mo. 295 (true copy of authentic draft) . § 317a LAW OF WILLS. [PAET III^ probate should be refused.® Corresponding considerations may apply to t-he wills of those who are deaf, but not blind ; and a tes- tator of this latter description would fitly assure himself that the instrument is correct by reading it over instead of having it read to him, or by writing it out himself ; and here, once more, the con- trolling question would be whether the instrument in question em- braced his testamentary intentions. The genuine and authentic will of an illiterate person is to be probated and sustained in its fair scope and intendment notwith- standing any ungrammatical or unlearned expressions.^ § 317a. The Testator's Understanding on the issue of Execution. The declarations of a testator, before or after making a will, are in general inadmissible on the issue of its execution.^ And evi- dence of one's statements of his intentions made long before mak- ing his will, or under remote circumstances, is properly excluded.^ The presumption is that any adult tesitator who signs knew and approved the contents of his will and executed it imderstand- ingly ; ^ but he need not have known the true legal and technical effect of its provisions.^ 6. Waite v. Frisbie, 45 Minn. 361, influence, etc., §§ 193-195, 243, 244. 47 N. W. 1069. And see § 403. 7. See Mitchell v. Donohue, 100 9. 165 Mass. 493, 43 N. E. 299 ; 108 Cal. 202, 38 Am. St. Rep. 279, 34 P. Cal. 608; 158 111. 314, 41 N. E. 912. 614. But of. 102 Mich. 568, 61 N. W. 3. 8. Kennedy v. Upshaw, 64 Tex. 411, 1. 62 N. E. 800, 194 111. 425 (a and cases cited; 80 P. 654; Couch v. foreigner) ; 73 N. E. 338, 213 111. 552,. Eastham, 27 W. Va. 796, 55 Am. Rep. 104 Am. St. Rep. 234; 25 N. W. 538, 346; Walton v. Kendrick, 122 Mo. 64 Wis. 487, 54 Am. Rep. 640; 37 S. 504, 25 L. R. A. 701, 27 S. W. 872. C. 348, 16 S. E. 38. See aa to mental capacity, or undue 2. Conrades v. Heller, 87 A. 28^ 119 Md. 448. 386 CHAP. III.] ATTESTATION AND SUBSCBIPTION, § 318 CHAPTER III. ATTESTATION AND SUBSCRIPTION BY WITNESSES. § 318. Attestation or Subscription independently of Statute. In England wills of personal property made before January 1, 1838, needed no atte-station or subscription in order to operate;^ custody was their sufficient publication, althougb it was safer and more prudent, as the jurists used to say, and left less in the breast of the ecclesiastical judge, if they were published in the presence of witnesses.^ Some of the older authorities, indeed, were sup- posed to lay it down that a publication before two witnesses was indispensable ; but what they meant was probably to recommend so prudent a course, or else to refer to that fundamental rule of the civilians which required two witnesses to prove every fact.^ That the testament itself had to be subscribed by two or more witnesses, or a single one, to give it validity, was neither affirmed nor pre- tended.^ But witnesses were often called in, nevertheless, to attest one's will ; and after the Statute of Frauds rendered such attestation necessary for wills of real estate, it became quite common for a testator to waive the legal exemption in favor of his personalty, and guard the final disposition as a whole by a subscription; his three witnesses signing their names after an attestation clause. Hence came the rule, that where an instrument drawn up as one's will professed to dispose of both real and personal prop- erty, or even personalty alone, but an attestation clause was ap- pended without signatures, it should be presumed that the testa- mentary intention never took full effect.^ But this rule was one 1. 1 Wms. Exrs. 84. 4. Brett v. Brett, 3 Add. 224; 1 2. Com. Rep. 452; Miller v. Brown, Wms. Exrs. 85. 2 Hagg. 211. 5. 1 Wms. Exrs. 85; 1 Add. 154, 3. 1 Wms. Exrs. 84, citing Bracton, 159 ; Walker v. Walker, 1 Meriv. 503 ; lib. 2, f. 61; Fleta, lib. 2. f. 125; Mathews v. Warner, 4 Ves. 186: 5 Swinb. pt. 1, § 3, pi. 13; Godolph. pt. Ves. 23. Where there was no regular 1, c. 21, § 1. attestation clause, but only the word 387 § 310 LAW OF WILLS. [pART III. of presumption merely, proceeding, of course, upon the theory that the incomplete execution showed an incomplete purpose; and this presumption might be repelled by slight evidence, showing that in fact the testator had intended it to operate without an attesta- tion, so far, at least, as his personal property was concerned, or that act of God prevented him from finishing the instrument to which his mind had fully and finally assented.® § 319. Attestation under Modern Statutes. As to wills, however, which are made at the present day in com- pliance with modern statutes, the rule of attestation by subscribing witnesses is far more widely imperative. Thus in England, by the modern Wills Act, 1 Vict. c. 26, sec. 9, it is enacted that no will made on or after January 1, 1838, shall be valid, unless the signature is " made or acknowledged by the testator in the pres- ence of two or more witnesses present at the same Lime; and these witnesses are to attest and subscribe the will in the testator's pres- ence, no particular form of attestation, however, being necessary.^ As for any will or devise of real estate, the Statute of Frauds, 29 " witnesses," non-attestation by wit- with attestation by witnesses alto- nesses afforded a much slighter in- gether, provided the will be wholly ference of incomplete testamentary written out, signed, and dated by the purpose. Doker y. Goff, 2 Add. 42. testator. Supra, § 255. Hence in 6. Buckle V. Buckle, 3 Pliillim. Virginia such a will has been sus- 323; 1 Wms. Exrs. 85, 86; 1 Hagg. tained as valid even though it con- 252, 551, 596, 698. tained an unsigned attestation clause. A first step was taken by the codi- And another paper of a testamenta-y fiers in some of our States, towards character, bearing the same date, and requiring attestation in all wills, by found folded up with such will, and a statute which prescribed full form- similarly written and signed, was alities of execution, not only for de- pronounced a valid codicil. Perkina vises, but where a will purported to v. Jones. 84 Va. 358. And see Soher's di.spase of both real and personal Estate, 78 Cal. 477, which disinclines property. See 15 Pick. 393. to treat one witness's signature to a Holograph wills, as we have seen, holograph will as amounting to an which make a spooinl feature of the incomplete attestation, legislation of various States, dispense 7. See Appx. ; 1 Wms. Exrs. preface. 388 CHAP. III.J ATTI'^STATION AND SUBSCRIPTION. § 319 Car. II, c. 3, had for a century and a half made the attestation of at least three witnesses indispensable.^ A comparison of the language used in these two great enactr ments will show various important points of difference between them. The most obvious one is, that two witnesses sufficiently attest all wills made after the year 1837, whether relating to real or to personal property, or to both ; three witnesses being no longer requisite for any will or devise. Other points fox comparison will uppear in the course of this chapter.® In the several American States will be found local statutes witli corresponding differences of detail; so that no single principle can be laid down to embrace the entire doctrine. Witnesses vary in number ; in some States, as under the old Statute of Frauds, they are to "attest and subscribe" the will, and nothing is said about requiring a testator to " make or acknowledge " the will or his sig- nature in their presence; nor do all States insist that all the wit- nesses shall attest and subscribe in the presence of one another, but merely in the presence of the testator, another feature copied from the earlier English enactment. In fact, our American wills acts appear based in expression less upon the act of Victoria than that of Charles II. ; yet they vary quite as widely in details as do these English enactments, and the latest tendency conforms more to the statute of Victoria, or to that of the New York code, which is somewhat similar.^ 8. A will of lands, under the S*^at- earlier statute, but it does not so ute of Frauds, § 5, must be " attested clearly under the later. And as to and subscribed in the presence of the publication and form of attestation, devisor, by three or four credible the statute of Victoria has special witnesses." See 1 Wms. Exrs 87; 1 provisions not found in the Statute Jarm. Wills, 77. of Frauds. These matters will be ex- 9. The Statute of Frauds required amined presently. witnesses to attest and subscribe the 1. A good example of the older will; but that of Victoria requires form of expression is found in the that the testator's signature be Massachusetts code, which requires " made or acknowledged " in their the will to be " attested and sub- presence. Attestation in the presence scribed in his (the testator's) pres- of the testator, though not of each ence by three or more competent wit- other, might have sufficed under the nesses." Mass. Gen. Stat. c. 92, § 6. 389 320 LAW OF WILLS. [part III. § 320. Number of Subscribing Witnesses required. First, then, as to the number of subscribing witnesses required. By the present English statute, two witnesses at least are requisite, whatever the kind of property disposed of.^ As for this cou-Utry, there must be (as under the old Statute of Frauds) at least three witnesses by the rule now or lately prevalent in most parts of Xew England; also in South Carolina, Florida, and Georgia.^ Two witnesses, however, now sufiSce in the majority oi. American States, including Rbode Island, New York, ISTew Jersey, Maryland and most of the Southern and Western States.* Upon the exceptional rules of various Sta.tes as to attestation for different kinds of prop- erty or non-attestation when a hologi'aphic will is made, we have already touched.^ Agreeably to such statute policy it may be laid down, in general, that a paper is void as a will when executed with less than the number of witnesses prescribed by local statute and that not even a probate can give such an instrument full validity.® The turn of this phrase is like that of the old Statute of Frauds. But the New York enactment, which so many other legislatures follow, is expressed in various sentences em- bodying consecutive directions, viz. : the subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attestirg wit- nesses; there shall be a declaration by the testator, etc. ; there shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will at the request of the testator. 2 N. Y. Rev. Stats, p. 63, §§ 40, 41. See § 255, 75 N. E. 1020, 213 111. 458; 70 P. 586; 65 Kan. 621. The needless addition of an extra witness beyond the local statute requirement does not invalidate tlie will, but rather the reverse. 192 Penn. St. 263; 63 So. 188. 2. Acts 1 Vict. c. 26, and 29 Car. II. c. 3, § 5, cited preceding section. 3. 1 Jarm. Wills, 77. 4. See 1 Jarm. Wills, 77, Bigelow's note; also the various local codes, some of which appear to have re- duced the number of indispensable witnesses since 1870. Cf. also for late statutory changes, Stimson's Am. Stat. Law, § 2644. Where a paper purporting to be a w^ill is signed " A by B " and wit- nessed " Witness C," B is not one of the two subscribing witnesses witliin the moaning of the statute. Peake v. Jenkins, 80 Va. 293. One witness to a will cannot suffice, as our codes .'itand now. Brengle v. Tucker, 80 A. 224, 114 Md. 597 (whether for real of personal property) ; 57 So. 743. 5. Supra, §§ 254-256. 6. Gay v. Sanders, 101 Ga. 601; 89 390 CHAP. III.] ATTESTATION AND SUBSCRIPTION". § 321 § 321. Signing or acknowledging before the Witnesses; English Rule. Next, we consider tlie signing or ackuow]essible, too, that the precise circumstances of attestation may have faded from the recollection of a witness by the time the will is presented for probate. Where all appears regular on the face of the will a due attestation should be presumed ; and direct evi- dence that the name of the testator was visible on the face of the will when iit was produced for witnesses to sign is certainly not necessary.^ The result of the cases under the statute of Victoria, where acknowledging and not signing in presence is relied upon, or in other words, that the testator's signature was already upon the will when it was produced to ithe witnesses for their attesta- tion, appears to be this : that in the absence of direct evidence on the point one way or the other, the court may, independently of any positive evidence, investigate the circumstances of the case, and may form its own opinion from these circumstances, and from With one exception all the English supra. See Morritt v. Douglas, L. precedents up to 1874, under either R. 3 P. & D. 1. the new statute or the old, showed On a re-execution, it is enough to some word or act of the testator him- merely acknowledge tlie signature Belf by way of acknowledgment. That made on a former execution. 17 Jur. exception (6 No. Ca. Suppl. 12) is 1130, 1 Jarm. Wills, 109. discussed in Inglesant v. Inglesant, 5. See Wright v. Sanderson, 9 P. D. 149; § 347 post. 393 § 32^ lAW OF WILLS. [PAKT III. the appearance of the document itself, whether the name of the testator was or was not upon it (or rather might not have been seen), at the time of the attestation.^ But the court should mainly consider whether itlie witnesses did not see, or at least have an op- portunity of seeing, the testator's signature when they attested; for if they did not, it is immaterial that the signature was actually there, but hidden from them.^ As with the general presumption in favor of a due attestation where all appears regular on the face of the will, so should it be presumed that the testator signed the instrument first and before either of his witnesses subscribed.^ § 323. Signing or acknowledging before the Witnesses; Ameri- can Rule. In our American States, a corresponding variance of statute ex- 6. Sir J. P. Wilde (Lord Penzance) in Huckvale's Goods, L. R. 1 P. & D. 375. In this case, the two attesting witnesses di^ not know whether or not the testator's signature was on the paper when they subscribed it. But the court under all the circum- stances decided that it probably was there, and granted a probate. See aLso Gwillim v. Gwillim, 3 Sw. & Tr. 200; Cooper v. Brockett, 4 Moo. P. C. 419. These cases seem to discredit Hammond's Goods, 3 Sw. & Tr. &0; and see Archer's Goods, L. R. 2 P. & D. 252. 7. Gunstan's Goods, 7 P. D. 102, which seems to give a new turn to the propositions as announced by Lord Penzance, supra. In Daintree V. Butcher, 13 P. D. 102, 107, this question is dLscussed somewhat fur- ther. The signature of tlie testatrix was upon the codicil before the wit- ncs-sos came into the room. They, in licr prfHcncc, signed tlioir names bo- low her signature, which was so placed that they could have seen it. The testatrix had called them in, but she did not tell them that it was a testamentary paper, nor what kind of instrument it was. They were asked to sign, and they could have seen the signature. This was held a sufficient compliance with the stat- ute; whereas, as it would seem, an acknowledgment by any testator that the paper was his will would not be enough unless the witnesses had op- portunity to see the signature. And see Wyatt v. Berry (1893) P. 5. 8. Sec § 327. It should be borne well in mind tliat neither the Eng- lish Statute of Frauds, nor an American code which copies it, re- quires a testator to sign in the pres- ence of the witnesses, but only that the witnesses shall sign in the pres- ence of the testator. See Stirling v. Stirling, 64 Md. 138. !94 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 324 pression calls for variance in iiLterpretation. Subject, however, to the language and policy of each local enactment, we may say that the broad American principle requires the testator either to sign or acknowledge before his attesting witnesses. In the latter in- stance, is it the acknowledgment of his will or the acknowledgment of his signature that the local statute keeps in view? To this in- quiry let us direct our attention : first of all observing, that if due acknowledgment be made before the witnesses, the testator need not sign his will in their presence.^ § 324. The Same Subject; Rule in Massachusetts, etc., where Will is to be acknowledged. In Massachusetts and various other States the language of the Statute of Frauds is essensially followed; and accordingly the ac- 9. There are numerous decisions which establish the principle for this country, as in England, that acknowl- edgment is a sufficient substitute for signing in the presence. See 1 Jarm. Wills, 80, Bigelow's American note, showing that this rule is or was at least well established in Arkansas, Georgia, Indiana, Illinois, Iowa, Ken- tucky, Massachusetts, Missouri, Ver- mont, and Virginia. See Abraham v. Wilkins, 17 Ark. 292; Webb v. Flem- ing, 30 Ga. 808, 76 Am. Dec. 675; Reed V. Watson, 27 Ind. 443 ; Crowley V. Crowley, 80 111. 469; Sechrest v. Edwards, 4 Met. (Ky.) 163; Ohase V. Kittredge, 11 Allen, 49, 87 Am. Dec. 687; Cravens v. Faulconer, 28 Mo. 19; Roberts v. Welch, 46 Vt. 154; Parramore v. Taylor, 11 Gratt. 220; 11 Phila. 161; Smith v. Holden, 58 Kan. 535, 50 P. 447. This is also the rule of Connecticut, and New Hamp- shire. Canada's Appeal, 47 Conn. 450; Welch v. Adams, 63 N. H. 344; Webster v. Yorty, 62 N. E. 907, 194 111. 408; Claflin's Will, 50 A. 815, 73 Vt. 129, 87 Am. St. Rep. 693; Con- vey's Will, 52 Iowa, 197, 2 N. W. 1084. The New York code provides for the sufficiency of either a subscrip- tion in presence of the witnesses, or an acknowledgment to them. Lewis V. Lewis, 11 N. Y. 220. The Mary- land rule conforms with the state- ment in the text. Stirling v. Stirling, 64 Md. 138, 21 A. 273. But the local codes are not found uniformly flexible in this respect. Thus the Alabama statute, now or formerly, favors only wills of person- alty in this respect. Henry, Ex parte, 24 Ala. 638. And under the New Jer- sey code, whioh the courts literally construed, the testator had formerly no option when devising land but to " sign " in presence of the witnesses. Combs V. Jolly, 2 Green Ch. 625 and cases cited. But this statute appears since to have been changed. Al- paugh's Will, 8 C. E. Green, 507. The local statute may of course, change from time to time. 395 324 LAW OF WILLS. [part iil knowledgment prescribed for a testator relates simply to the will and its attestation. Thus, it is held, agreeably with the English line of precedents under that statute or without them, that a tes- tator's acknowledgment in fact is sufficient, without any particular words importing the nature or comtents of the instrument; that any act which clearly indicates his intentional acknowledgment is sufficient, without any language whatever; ^ that the will may have been properly acknowledged by him, even though the attes>ting witr nesses derive no clear idea whether the paper they subscribe is a will or some other kind of instniraent; ^ and that, if the execution be bona fide, it matters not whether the witnesses saw the testator's signature or not.^ In matters of this character clear and explicit 1. Allison V. Allison, 46 111. 61, 92 Am. Dec. 237. In this Illinois case the attestation clause wa,s read over by the scrivener in the hearing of the testator and the witnesses; the testa- tor then handed the pen to the sub- scribing witnesses, and saw them sign as such, but uttered not a word while they were present; the court held, nevertheless, that this was a suflfici- ent acknowledgment. 2. A will has been repeatedly sus- tained in Massachusetts where no one of the witnesses knew that the attes- tation related to a will, nor what, in fact, was the nature of the instru- ment. Osborn v. Cook, 11 Cush. 532, 59 Am. Dec. 55 ; Hogan v. Grosvenor, 10 Met. 56, 43 Am. Dec. 414; Ela v. Edwards, 16 Gray, 91; 13 Gray, 110. So too, in various other States, wit- nesses need not know the nature or contents of the paper. Turner v. Cook, 36 Ind. 129; 34 Ind. 275; Can- ada'a Appeal, 47 Conn. 450; Flood v. PragofF, 79 Ky. 607; 75 Vt. 19, 52 A. 1053; 129 Ga. 92, 58 S. E. 702; 219 Penn. 355, 68 A. 953; 34 Me. 162; 30 Gratt, 56, 32 Am. Rep. 650; 52 Iowa, 662, 3 N. W. 734; 108 Ala. 366, 18 So. 831; Nixon v. Snellbaker, 136 N. W. 223, 155 Iowa, 390; Dougherty's Estate, 134 N W. 24, 158 Mich. 281; Conrades v. Heller, 87 A. 28, 119 Md. 448. Tlie presence of the witnesses is here designed as only an incidental benefit and security; the object of the attestation being that the party sub- scribing may be able to testify that the testator put his name upon the identical piece of paper upon which he puts his own, whatever the con- tents of that paper may prove to be. Canada's Appeal, 47 Conn. 450. Rob- inson V. Jones, 105 Md. 62, 65 A. 814; Turner v. Cook, supra. 3. Ela V. Edwards, 16 Gray, 91; Dewey v. Dewey, 1 Met. 359. Especially does this doctrine hold good where the witness might have seen the signature, and it was through no fault of the testator that he did not, but rather because of hi» own inadvertence. 396 CHAP, in.] ATTESTATION AND SUBSCRIPTION. § 325 acts are to be regarded, ratber than mere form.* Of course a genuine testamentary intention should exist on the maker's part; but all is presumed regular where the face of the will indicates it.^ But there are States whose courts have departed from the liberal policy of the English courts in this respect. Thus, in Vermoiut, while acknowledgment of the will by the testator may take the place of subscription in presence of the witnesses, the rule is, that subscribing witnesses to a will must subscribe as intending a tes- tamentary execution ; and hence they must know the character of the act they are to perform, and that the instrument was a will.® In Missouri, under an enactment which is nearly a transcript of the Statute of Charles II., it is held that a subscribing witness must know the instrument to be a last will, and must subscribe at the testator's request; but that neither declaration nor request need be verbal.^ Finally, in South Carolina, under an act which only permitted of acknowledgment instead of sigTiing by a liberal con- struction, the courts refused to sustain a will where the testator's acknowledgment was not brought clearly home to a subscribing witness.^ § 325. The Same Subject: Rule in New York, etc., where Signa- ture is to be acknowledged. In New York, on the other hand, and in various American States, the local code contemplates an acknowledgment of the " sigTiature," as under the English Statute of Victoria. Four es- sentials are prescribed by the ISTew York legislature, one of which is the making of the subscription in the presence of each of the attesting witnesses, " or an acknowledgment of the making of the 4. Allen v. Griffin, 69 Wis. 529, 35 App. 458; Grimm v. Tittmann, 113 N. W. 21. Mo. 56, 20 S. W. 664. 5. 72 N. E. 499, 187 Mass. 120, 105 8. Tucker v. Oxner, 12 Rich. 141. Am. St. Rep. 386; Allen v. Griffin, But the testator need not formally de- supra. clare the instrument to be his will. 6. Roberts v. Welch, 46 Vt. 164, Gable v. Rauoh, 50 S. C 95, 27 S. E. and cases cited. 555. 7. Odenwaelder v. Schorr, 8 Mo. 397 § 326 LAW OF WILLS. [pAKT III. same to them." ® Under this enactment it is held an insufficient acknowledgment of the testator's subscription where the paper was so folded when the witnesses signed their names that they could not see whether it was subscribed by him or not, the language of acknowledgment leaving them further to infer that it might have been a deed instead of a will.^ Similar enactments may be found in Xew Jersey^ and some other States.^ But under statutes of this character, when the testator produces a paper bearing his personal signature, requests the witnesses to attest it, and declares it to be his last will and testament, he thereby acknowledges his subscrip- tion, and complies as essentially with the statute as though he had signed in their presence.* Under none of the codes, English or American, as we appre- hend, is it essential to due acknowledgment that the testator who produces the will with his name upon it for their attestation, should state in so many words that this is his signature.^ Kor should in- formality in one's request to witnesses invalidate where the witr nesses actually understood that the instrument was a will.^ § 326. Publication or Declaration that the Instrument is a Will. Here let us further observe, that the statutes of New York and "New Jersey lay down expressly another essential, not usually em- 9. Lewis V. Lewis, 11 N. Y. 220, 596, where the "signing in presence" 223. There is another specific re- was held insufficient, quirement under this statute — that of 5. 1 Wnis. Exrs. 88, note; 3 Curt, acknowledging the instrument to be 172, 175; Tilden v. Tilden, 13 Gray, one's last will — of wiiicli we shall 110; Adams v. Field, 21 Vt. 256; speak presently; § 326. Small v. Small, 4 Greenl. 220, 16 Am. 1. Lewis V. Lewis, 11 N. Y. 220. Dec. 253; Denton v. Franklin, 9 B. And see Sisters of Charity v. Kelly, Mon. 28; Green v. Grain, 12 Gratt. 67 N. Y. 409; Baskin v. Baskin, 36 552; Allison v. Allison, 46 111. 61. 92 N. Y. 416; Mitchell v. Mitchell, 77 N. Am. Dec. 237; Gamber's Will, 104 N. Y. 596; 96 N. Y. S. 729. Y. 476; Reed v. Watson, 27 Ind. 443; 2. Ludlow V. Ludlow, 35 N. J. Eq. Baskin v. Baskin, supra; Alpaugli's 480, 487, 66 A. 583. Will, 8 C. B. Green, 507; Harp v. 3. Lupcr V. Werts (Or.), 1890. Parr, 168 111. 459, 48 N. E. 113. 4. Baskin v. Ba.skin, 36 N. Y. 416. 6. Morley's Will, 125 N. Y. S. 886. But cf. Mitchell v. Mitchell, 77 N. Y. See § 329, post; 143 N. Y. S. 999; 144 N. Y. S. 4-13. 398 CHAP. III.] ATTESTATION AND SUBSCRIPTION. 32G braced under our local wills acts ; namely, that the testator shall, at the time of making or acknowledging his subscription, declare that the instrument subscribed is his last will and testament.^ Such a requirement at once repels the theory that an attestation can be legally sufficient where the testator does not distinctly apprise his witnesses of the character of the paper which they are called in to subscribe.^ It is seen that this specific declaration is not the sub- stitute for signing in presence, but accompanies the final execution of the will under all circumstances. A declaration before the wit- nesses in express terms that the instrument is one's last will best satisfies this statute requirement; but less than this is considered acceptable, provided that, in some way, the testator makes this fact known by acts or conduct, or, better still, by words.^ And bearing 7. Lewis V. Lewis, 11 N. Y. 220, are witnessing, and they must witness 223; Ludlow v. Ludlow, 35 N. J. Eq. 480, 487; Baskin v. Baskin, 36 N. Y. 416; Clark v. Clark, 52 A. 225, 64 N. J. Eq. 361. See also the California rule, as applied in Myrick ( Brob. ) 40 ; 66 P. 925. And see a similar provi- sion in the Louisiana code construed in Bourke v. Wilson, 38 La. Ann. 320; 31 So. 64, 106 La. 442 (before a no- tary ) . 8. lb.; Sisters of Charity v. Kelly, 67 N. Y. 409. 9. " There must be some declaration by the testator that it was his wiM, and a communication by him to the witnesses that he desires them to at- test it as such. But this need not be done by word; any act or sign by which that communication can be made is enough. The scrivener, in the presence of the testator, says: ' This is the will of A. B., and he de- sires you to witness it,' — the testator standing by — is a sufficient publica- tion or declaration. The form is im- material. But the witnesses must know it is the will of the testator they it at his request." Mundy v. Mundy, 2 McCart. 290. And see Turnure v. Turnure, 35 N. J. Eq. 437, 44 N. J. Eq. 154. Such is the liberal construc- tion placed by New Jersey courts upon the statute in question. See also Ayres v. Ayres, 43 N. J. Eq. 565, IS A. 621; 63 N. J. Eq. 142, 51 A. 775; 50 N. J. Eq. 725, 742, 26 A. 673, 676; 51 N. J. Eq. 241, 27 A. 465; 56 N. J. Eq. 761, 40 A. 438. This same general conclusion the latest New York decisions appear to have reached. In Lane v. Lane, 95 N. Y. 494, the testator was afflicted by a partial paralysis of the vocal or- gans when the will was executed, and could not utter words. But he made sounds intelligible to those familiar with him, and signs easy of interpre- tation. It was held that the statuts requiring a publication had been duly complied with. "As to the condition now under consideration," observes Danforth, J., in this case, " it is well settled that the necessary publication may be discovered by circumstances 399 326 LAW OF WILLS. [pact III. in mind that the main object of such legislation is to repel fraud and establish a bona fide testament, we may assume that a substan- tial rather than a literal compliance with the statute formalities is sufficient. as well as words, and inferred from the conduct and acts of the testator, and that of the attesting witnesses in his presence, as well as established by their direct and positive evidence. Even a person both deaf and dumb may, by writing or signs, make his will and declare it." lb. The New York cases are very numerous which construe this " declaration " phrase of the statute. See Coffin v. Coffin, 23 N. Y. 1; Lewis v. Lewis, 11 N. Y. 220; Gilbert v. Knox, 52 N. Y. 125; Thompson V. Stevens, 62 N. Y. 634; numerous cases cited in 95 N. Y. 499. Cf. Mitchell v. Mitchell, 77 N. Y. 596. wliere there was not considered a suf- ficient attestation. See 3 Redf. (N. Y.) 181; 4 Redf. (N. Y.) 244; 1 Dem. 496. Where a testator is asked if the instrument is his will, and answers in the affirmative, this is a sufficient declaration. Reeve v. Crosby, 3 Redf. 74 ; Coffin v. Coffin, 24 N". Y. 15. See 49 N. Y. Super. 434 ; 52 N. Y. Supr. 1 ; 51 N. Y. Supr. 571; Voorhis, Re, 125 N. Y. 765, 26 N. E. 935; Wilmerding's Will, 135 N. Y. S. 515. The declaration or publication in question by the testator need not be made at the very act of signing; it is sufficient if made on the same occa- sion, and as part of the same transac- tion. Collins, Re, 5 Redf. 20. It may be made to the attesting witnesaes separately. 2 Dom. 309. Wlietlier signing or acknowledgment shall pre- cede the declaration, or vice versa, is of no practical consequence, so long as they are essentially contemporaneous. Jackson v. Jackson, 39 N. Y. 162. But in order to satisfy the statute, the declaration before the attesting witnesses must be unequivocal, w*hether expressed by words or signs. It will not suffice that the witnesses have learned elsewhere, and from other sources, that the document is a will, or that they suspect such is the character of the paper. The fact must, in some manner, although no particular form of words is required, be declared by the testator in their presence, so that they may know it from him. Allen, J., in Lewis v. Lewis, 11 N. Y. 226. In New York a substantial com- pliance with the statutory method of publication is more readily inferred where the will is holographic (or in the testator's own handwriting) than where some one else wrote it. Beck- ett, Re, 103 N. Y. 167. But an ex- hibition of the will, with the testa- tor's signature appended, appears al- ways indispensable to fulfil the stat- ute. 49 N. Y. Supr. 434; 51 N. Y. Supr. 571. " The formalities pre- scribed by the statute are safeguards thrown around the testator to pre- vent fraud and imposition. To this end the witnesses should either see the testator subscribe his name, or he should, the signature being visible to him and to them, acknowledge it to be his signature." Earl, J., in Mac- kay's Will, 110 N. Y. 611, 615, 6 Am. St. Rop. 409, 18 N. E. 433. 400 CHAP. III.] ATTESTATION AND SUBSCKIPTION. §320 In tMs respect the enactments just mentioned differ materially from the English statute of 1 Vict. c. 26 ; for that statute expressly dispenses with publication of the will by the testator, as a distinct act in the presence of the attesting witnesses.^ Nor under the statute of Car. II., which required the testator to sign, was publi- cation concluded an essential, by the later cases, though Lord Hard- wicke had in earlier times strenuously insisted to the contrary.^ Indeed, the long established doctrine, both of England and the United States, is, as we have elsewhere intimated, that, independ- ently of an express statute requiring publication, a will may be duly executed by a testator without any formal announcement of a testamentary purpose on his part, and without a word uttered by him to show what is the nature of the instrument which witnesses are called upon to subscribe.^ On the contrary, the maker's sig- nature animo testandi, and his proper acknowledgment, such as we have described, showing that he has put his name bona fide upon ihe paper which he desires witnessed, where he has not signed in their presence, renders the execution valid in general without any otlier or more formal publication; and the signatures of the wit- nesses being duly aflSxed, the act of execution becomes complete. Publication is the act of declaring the instrument to be the last will of the testator; * and the words " publish " or " declare " may 1. See § 13 of this act; appendix. Hulse's Will, 52 Iowa, 662; Barnwell 2. Moodie v. Reid, 7 Taunt. 361, v. Murrell, 108 Ala. 366; supra, §§ contra Ross v. Ewer, 3 Atk. 156; Doe 321-324 and cases cited. V. Burdett, 4 Ad. & El. 14, 9 Ad. & 4. See Bouv. Diet. " Publication.' El. 936. Lord Hardwicke, in Ross v. The word " declare " in the New York Ewer, contended for the publication code signifies " to make known, t'> of a devise of real estate. Publica- assert to others, to show forth," and tion of a will of personalty was not this in any manner, either by words necessary. or by acts, in writing or by signs; 3. 1 Jarm. Wills, 80, 81, 1 Wms. and to declare to a witness that the Exrs. 84; White v. British Museum, instrument described was the testa- 6 Bing. 310; Dean v. Dean, 27 Vt. tor's will, means to make it at the 746; Cilley v. Cilley, 34 Me. 162; same time distinctly known to him Smith V. Dolby, 4 Barring. 350; Wat- by some assertion, or by clear assent son V. Piper, 32 Miss. 421 ; 12 Gratt. in words or signs. 26 Wend. 325, ap- 239; Meurer's Will, 44 Wis. 392; proved in Lane v. Lane, 95 N. Y. 498. Cheatham v. Hatcher, 30 Gratt. 56; 26 401 § 327 LAW OF WILLS. [PAET III. conveniently be distinguished from the " acknowledging " of which we have spoken, a term quite commonly employed in wills acts with the lesser and limited application. But a well-drawn attestation clause usually begins, " Signed, sealed, published, and declared," etc. ; and it is undoubtedly prudent and natural, even if unnecessary, for the testator to make formal publication before the witnesses at the time they attest. And if the signatures and the whole execution be properly managed, there is no reason why a scrivener or lawyer present who represents the testator should no-t formally announce on the latter's behalf that the will is his will, while the testator remains silent.^ § 327. Simultaneous Presence of Witnesses. Again, the making or acknowledging of the testator's signature is in England, under the Statute of Victoria, required to be in the simultaneous presence of the witnesses,^ whereas the old Statute of Frauds permitted the testator either to sign before one or two wit- nesses and acknowledge the will before the others, or to acknowl- edge the will before all the witnesses separately without signing in the presence of any of them.^ American codes will, on inspection, be found to vary on this point. But the Statute of Victoria proceeds to state simply that these witnesses " shall attest and shall subscribe the will in the presence of the testator " ; and while the natural consequence would be, that their attestation, following his making or acknowledging his sig- nature in their simultaneous presence, would be in the presence of 5. Denny v. Pinney, 60 Vt. 524; shall be made or acknowledged by the Mundy v. Mundy, 2 McCart. 290. testator in the presence of ttco or more In general, whatever the local stat- witnesses presertt at the same time." ute requires the testator to do must Stat. 1 Vict c. 26, § 9. And see Wyatt precede in point of time the subscrip- v. Berry. (1893) P. 5. tion of the witnesses. Bioren v. Nea- 7. Stnitli v. Codron, 2 Ves. 455; ler, 78 A. 201, 76 N. J. Eq. 573 (a Wright V. Wright, 7 Bing. 457, 3 P. defective pul)lication). Wms. 253; Addy v. Grix, 8 Ves. 504; 6.1 Jarm. Wills, 108; Smith v. Ellis v. Smith, 1 Ves. Jr. 11 ; 1 Jarm. Smith, L. R. 1 P. & D. 143; Moore v. Wills, 81. King, 3 Curt. 243. " Sucli signature 402 CHAP. III.] ATTESTATION AND SUBSCEIPTION. § 328 eacJi other as well, this, it is held, is not an indispensable condition. In other words, they must attest in the presence of the testator, but not necessarily of each other.^ Many American enactments adopt the same view.^ Under scA^eral of our codes, however, the legisla- tive impression imports that the witnesses must subscribe their names in presence of each other ; ^ and this is altogether the prefer- able course to pursue in practice, under any circumstances, in order to make the proof for establishing the will as clear as possible. § 328. Subscription by Testator after the Witnesses: Acknowl- edgment by Witness not Acceptable, In 'New York a subscription of the will by the testator after one or both of the witnesses have signed their names to it is not a due execution.^ Such, too, is the English rule on the subject under the Statute of Victoria ; ^ this enactment intending that the testator ehall make or acknowledge his signature (not his will) before either of the witnesses signs, and, of course, while both are pres- ent. There are a few American States where a different rule of 8. 3 Curt. 659; Webb, Goods of, 91 Tenn. 183, 30 Am. St. Rep. 875, Dea. & Sw. 1, 1 Wms. Exrs. 90, But 18 S. W. 280; Ck)wan v. Shaver, 95 cf. Casement v. Fulton, 5 Moore P. C. S. W. 200, 197 Mo. 203; Hull's Wills, 130. 89 K W. 979, 117 Iowa, 738, 52 A. 9. This is the rule of New York. 222; 64 Md. 138, 21 A. 273. Willis V, Moot, 36 N. Y. 486; 107 N. 1. See Vermont rule as stated in Y. S. 222; 98 N. Y. 267; Bogart, Re, Roberts v. Welch, 46 Vt. 164; 42 Vt. 67 How. Pr. 313. And of New Hamp- 658, 1 Am. Rep. 359. It was formerly shire. Welch v. Adams, 63 N. H. 344, thus in Connecticut. Lane's Appeal, 56 Am. Rep. 521. And of Arkansas. 57 Conn. 182, 14 Am. St. Rep. 94, 4 Rogers v. Diamond, 13 Ark. 474. And L. R. A. 45, 17 A. 926. of Massachusietts. Ela v. Edwards, 2. Jackson v. Jackson, 39 N. Y. 16 Gray, 91; Chase v. Kittredge, 11 153; 21 Hun, 383; 6 Dem. 347. Allen, 49, 87 Am. Dec. 687. And of 3. 2 Curt. 865; 3 Curt. 117, 648; Georgia. Webb v. Fleming, 30 Ga. 808, Moore v. King, 3 Curt. 243 ; Charlton 76 Am. Dec. 675. And of Illinois. v. Hindmarsh, 1 Sw. & Tr. 433, 8 H. Flinn v. Owen, 58 111. 111. And of L. Cas. 160; 1 Wms. Exrs. 90. The Indiana. Johnson v. Johnson, 106 words of the act are prospective, that Ind. 475, 55 Am. Rep. 762, 7 N. E. such witnesses " shall attest and shall 201. And see Simmons v. Leonard, subscribe," etc. 403 § 328 LAW OF WILLS. [pAKT III. local constiTiction appears to have been adopted ; but on the whole the preponderance of American authority discountenances the prior subscription of witnesses to a will.* The theory here favored is, that while the statute leaves the tes- tator free either to sign out of their presence and acknowledge be- fore the witnesses or to sign in their presence at his discretion, they, on their part, have no option but to attest and subscribe in his presence, and they cannot acknowledge a signature before him in return. Hence, it is held under the English staitute that where one of the two witnesses subscribes his name to the will before the testator has made or acknowledged his own signature in presence of both, and the other witness then subscribes alone, it is not a legal compliance that the first witness should afterwards acknowledge his premature signature ; but either he must re-subscribe, or the will fails of its essential subscription and attestation.^ This posi- tion is reinforced in New York practice, by the consideration that, under the peculiar legislation of that State,® attesting witnesses are, by this act of signing their names, to attest, not only the tes- tator's signing or acknowledgment, but his contemporaneous dec- laration that it is his will.^ 4. See this subject exhaustively ex- after his name already subscribed on amined by Gray, J., in Chase v. Kitt- a previous day. Trevanion, Re, 2 Rob. redge, 11 Allen, 49, 87 Am. Dec. 687, 311. And see 2 Curt. 865; 3 Curt, with English and American citations; 659; Hindmarsh v. Charlton, 8 H. L. Reed v. Watson, 27 Ind. 443; Duffie Cas. 160; VVyatt v. Berry, (1893) P. V. Corridon, 40 Geo. 122; Brooks v. 5. The execution failed in Irvine's Woodson, 87 Ga. 379, 14 L. R. A. 160, Estate, 55 A. 795, 206 Penn. 1, where 13 S. E. 712; Lane v. Lane, 54 S. E. one witness signed before the testator 90, 125 Ga. 386, 114 Am. St. Rep. and the other witness did not know 207. But as to presumptions, see § whether the testator had signed. 322. 6. Supra, § 326. 5. Moore v. King, 3 Curt. 243. To 7. Jackson v. Jackson, 39 N. Y. 153, pa.S3 over a signature previously 161. Woodruff, J., here commeiits made, with a dry pen, amounts to no with much force upon the danger more than an acknowledgment, and which would arise if the testator does not serve as a re-suhscription. could keep a will in hia possession l^layne v. Scriven, 1 R. Eccl. 775. signed by others and then add hia Nor is it an attestation and sulxscrip- .signjuture. '" The statute," he furtlier tioii for a witness to add his residence observes, "contemplates acts, each of 404 CHAP. III.] ATTESTATION AND SUBSCRIPTION. 328 On ithe whole, it does not seem to affect the legal objection that a local statute follows the language of the old Statute of Frauds rather than that of Victoria, in prescribing the formalities of at- testation,^ And what we should here particularly observe is that witnesses are required under both of these enactments, not only to attest the will, but to subscribe it " in presence of " the testator ; for which reason a subscription of his name prematurely by a wit- ness, while the testator is absent, is especially obnoxious to the re- quirement, and cannot be cured by an acknowledgment afterwards in the testator's presence without a re-subscription.® which is serious and important. Exe- cution and the attestation thereof bear a plain relation to each other in point of time, in the good sense and common apprehension of every one, and the statute prescribing the requi- site formalities to a valid execution and authentication, plainly cont im- plates that the acts of tlie witr.esses shall attest the signing and declara- tion of the testator as a fact accom- plished." 8. See Chase v. Kittredge, 11 Allen, 63, 87 Am. Dee. 687. " The [Massa- chusetts] statute requires that the will shall ' be in writing and signed by the testator,' and shall be ' at- tested and subscribed, in the presence of the testator, by three or more com- petent witnesses.' He is not required to write his signature in their pres- ence, but it is his will which they are to attest and subscribe. It must be his will in writing, though he need not declare it to be such. It must therefore be signed by him bsfore it can be attested by the witnesses." Per Gray, J., ib. 9. This was the precise point set- tled in Chase v. Kittredg?, aupra. And see cases cited, ib. The Act 29 Car. II. did not permit a witness to acknowledge a signature made in the testator's a'bsence as equivalent to a subscription in his presence. 3 Mod. 219; 2 P. Wms. 510; 3 P. Wms. 254. Acknowledgment by a witness is not deemed a suilicient substitute for a subscription in the testator's pres- ence under the Vermont code. Pope V. Pope, cited 11 Allen, 61 Nor in New Jersey. Den v. Milton, 7 Halst. 70; Combs v. Jolly, 2 Green Ch. 625. Nor apparently in Delaware. Rasli V. Purnel, 2 Harring. 458; ib. 506. Nor in North Carolina. Rngland v. Huntingdon, 1 Ired. 561. And in In- diana the same rule is followed. Reed V. Watson, 27 Ind. 443. Also in Georgia. Duffie v. Corridon, 49 Geo. 122; 87 Ga. 379, 14 L. R. A. 160, 13 S. E. 712 ; Lane v. Lane, 54 S. E. 90, 125 Ga. 386, 114 Am. St. Rep. 207. Also in Rhode Island. Pawtucket v. Ballon, 15 R. I. 58. Contra, Sturdi- vant V. Birchett, 10 Gratt. 67, 11 Gratt. 220. These Virginia decisions a.ppear to be the only ones in which an acknowledgment by a witness to a will in the testator's presence, of a signature affixed in his absence, has been held equivalent to an attestation 405 § 328 LAW OF WILLS. [part III. But if, on tlie other hand, the subsequent acknowledgment of a signature placed upon the will out of the testator's presence is not relied upon, nor a signing out of his presence at all, but the sign- ing of witnesses and testator was, in fact, contemporaneous and fulfilled the statute in all other respects, our courts do not so readily condemn the will because the true sequence of signing hap- pens casually to be reversed ; some witness staking up the pen out of turn and before the testator. For here, it may be said, there is but a trivial variation of formal facts in one complete and con- sistent transaction ; and the policy whose aim it is to prevent the possibility of fraud in procuring the names of witnesses can suffer no infringement.'- Moreover, it is fair to presmne, in absence of clear proof to the contrary, that the testator signed first and his witnesses afterwards, as they should and would naturally have done.^ and subscription in his presence. Whether Moale v. Moale, 59 Md. 510, 519, is decided ax;cording to rule on this point, qu.; for the published re- port does not clearly state the facts on which the opinion is based. 1. Miller v. McXeill, 35 Penn. St. 217, is in point; the court declining to be bound by English precedents if they are less favorable. And see O'Brien v. Galagher, 25 Conn. 229; 1 B. Mon. 117, approved in Upchurch V. Upchurch, 16 B. Mon. 113; Vaughan v. Burford, 3 Bradf. (N. Y.) 78 ; Kaufman v. Caughman, 49 S. C. 159, 61 Am. St. Rep. 808. Other cases seek this result by discrediting the evidence of witnesses themselves on this point. 21 Hun, 383. Contra, 50 A. 467, 55 L. R. A. 580, 63 N. J. Eq. 321; Marshall v. Mason, 57 N. E. 340, 176 Mass. 216, 79 Am. St. Rep. 306. Some American statutes are not so expressed as to require a signing " in the testator's presence." See 11 Allen, 61, 87 Am. Dec. 687, and cita- tions. The Pennsylvania statute, too, is a peculiar one, as we have seen, not requiring subscription in the tes- tator's presence, nor even subscrip- tion at all. Supra, § 256; 11 Allen, 62. " The general and regular course undoubtedly is, for the testator in the first pla<'e to sign and execute the will on his part, and then call upon the witnesses to attest the execution by subscribing their names." O'Brien v. Galagher, 25 Conn. 229. 2. Allen v. Griftin, 69 Wis. 529; 49 S. C. 159; § 347; Peverett's Goods, (1902) Prob. 205. See also 40 S. E. 689, 130 N. C. 1, 89 Am. St. Rep. 854, 57 L. R. A. 209; Gibson v. Nelson, 54 N. E. 901, 181 111. 122, 72 Am. St. Rep. 254; Lumber Co. v. Branch, 73 S. E. 164, 158 N. C. 251. 400 CHAP. III.] ATTESTATIOIST AND SUBSCRIPTION. § 329 § 329. Request to Witnesses to sign. The request that witnesses shoiihl attest and subscribe one's will may be inferred from acts and conduct of the testator as well as his express words; the law regarding substance rather than literal form in such matters. It is not essential, therefore, that the tes- tator should expressly ask the subscribing witness to attest his will." His acts, his gestures, may signify this request; whatever, in fact, implies his knowledge and free assent thereto.* Indeed, the active part in procuring the witnesses and requesting them to attest and subscribe is not unfrequently borne by some friend, near relative or professional counsel ; and if such third person acts truly for the testator in his conscious presence and with his apparent consent, the legal effect is the same as though the testator himself had spoken and directed the business.^ But under such circum- stances the tacit or open conduct of the testator himself, as ex- pressive of his knowledge and free assent or the reverse, demands the strictest scrutiny; for nothing done by others officiating on his behalf in a clandestine, fraudulent or overpowering way, can stand as the testator's o^vn act though done in his presence.^ 3. 3 Bradf. 295; Rogers v. Dia- 48 Ind. 503; Cheatham v. ITafcher, mond, 13 Ark 474; Myrick Prob. 50; 30 Gratt. 56, 32 Am. Rep. 650; Allen's Will, 25 Minn. 39; Coffin v. Meurer's Will, 44 Wis. 392; 87 Ind. Coffin, 23 N. Y. 9, 80 Am. Dec. 235; 13; Harp v. Parr, 168 111. 459, 48 HiiTgins V. Carlton, 28 Md. 117, 92 N. E. 113; Nelson's Will, 141 N. Y. Am. Dec. 666. 152, 36 N. E, 3; Leonard, Ex parte, 4. Hutehins v. Cochrane, 2 Bradf. 39 S. C. 518, 22 L. R. A. 302, 18 S. E. (N. Y.) 295; Davies's Goods, 2 Rob- 216; Denny v. Pinney, 60 Vt. 524, 12 ert. 337; Allison v. Allison, 46 111. 61, A. 108; Burney v. Allen, 34 S. E. 500, 92 Am. Dec. 237; Savage v. Bowen, 125 N. C. 314, 74 Am. St. Rep. 637. 49 S. E. 668. 103 Va. 540; 46 A. 993, 6. See Heath v. Cole, 15 Hun (N. 91 Md. 383; 57 S. W. 526, 157 Mo. 1, Y.), 100. Our chapter, supra, on 80 Am. St. Rep. 604; Craig v. Trot- fraud and undue influence shows ter, 96 N. E. 1003, 252 111. 228; various instances where the officious Brengle v. Tucker, 80 A. 224, 114 Md. zeal of intt;rested parties in procuring 597; Avaro v. Avaro, 138 S. W. 500, a formal execution of the will has 235 Mo. 424. aided much in condemning it. Every 5. Inglesant v. Inglesant, L. R. 3 prudent attorney who is called upon P. & D. 172; Gilbert v. Knox, 52 N. to take an active part in procuring Y. 125; Peck v. Gary, 27 N. Y. 9. 84 the execution of a will, takes heed to Am. Dec. 220; Bundy v. McKnight. elicit as far as possible, before the 407 § 330 LAW OF WILLS. [PART III. § 330. Attestation and Subscription distinguished. Statutes whichi relate to the duty of subscribing wills couple usually the words " attest " and " subscribe " ; and these words should be distinguished. " To attest the publication of a paper as a last will," observed Robertson, C. J., of Kentucky, in 1840, " and to subscribe to that paper the names of Hite; but by mistake she gave to one of tiiem a wroii-' surname. This attestation was sustained by Sir H. J. Fust, and probate of tlie will granted. 6. See 2 Spinks, 57, 29 L. J. Prob. 114. In Sperling's Goods. 3 Sw. & Tr. 272, a servant to the testator, who was called in as one of the witnesses, wrote instead of his name, " Servant to A," misunderstanding the direction given to him; and in the haste of execution this informnlity was not noticed. Sir J. P. Wilde, upon proof that the servant meant this r.s a proper subscription and attesi.ation on his part, treated tlie description an equivalent to the name, and admitted the will to probate. See also Jacobs's Will, 132 N. Y. S. 481. 7. Ashmore's Goods, 3 Curt. 756. But an inadvertent mistake by the witness, in writing the testator's sur- name with his own initials, makes his signature insufTicient. Walker's Es- tate, 110 Cal. 387, 52 Am. St. Rep. 104, 30 L. R. A. 460. (Tliree judges dissenting.) Cf. Jacobs's Will, supra. 410 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 334 § 333. Signing or Subscription Insufficient where a Complete Intent to Subscribe was Wanting, etc. But where the signing or subscription by initials, by mark, or by whatever else falls short of a full signature, was accompanied by an incomplete intention of subscribing as a witness, -the s^:atute is not satisfied. As in the case where one of the witneases, tlirough feebleness, finds himself unable to complete his signature after writing his Christian name, and a substitute is called in.^ Nor, again, is the statute satisfied where the signature relied upon, whether imperfect or in full, was placed upon the paper without the corresponding bona fide intention of subscribing as an attesting witness. As, for instance, if one should put a wrong name to the paper with the intention of making it appear .that the person bearing that name, instead of the witness himself, signed it.® Or where initials were placed on the will, not with the sub- scribing purpose, but merely to note alterations.^ Or generally in case of a signature, fraudulently or surreptitiously procured, and affixed, in fact, without the intention of subscribing a^s a witness at all on the particular occasion.^ § 334. Subscription must be Animo Attestandi; noting Inter- lineations, etc. In short, the subscription by a witness, in order to be good, must have been made freely and understandingly, animo attestandi. One who writes his name with a different intent or under some con- straint which deprives him of his free agency cannot be regarded, in the legal sense, as a subscribing witness at all.^^ But it does not 8. Maddock's Goods, L. R. 3 P. & 1. 29 L. J. Ch. 71, 1 Rob. 712, 1 D. 169. Here, the Statute of Victoria Jarm. Wills, 82. See 80 Va. 293, requiring '' simultaneous presence," cited p. 348. etc., the second attempt at a legal 2. See Hirwimarsh v. Charlton, 8 H. execution failed from other causes; L. Cos. 160, and other cases cited, § while the first attempt was held in- 345, post, where acts not intended as sufficient because a feeble witness had a re.subscription by the witness are desisted from completing his nttesta- denied that efTect. tion. See also M'yrick Prob. 124 2a. Wilson's Goods, L. R. 1 P. & D. 9. Pryor v. Pryor, 29 L. J. Prob. 269; Dunn v. Dunn, L. R. 1 P. & D. 114. 237. 411 § 335 LAW OF WILLS. [PAKT III. necessarily follow that a person who signs the paper with another purpose in view may not have intended his signature to serve for attestation as well.^ As a safeguard against fraud or error, erasures or interlinea- tions made in the instrument before signing are properly noted in the attestation by the witnesses, especially if important ones ; yet the fact tliat such erasures or interlineations are not noted at the foot of the instrument does not invalidate the probate.* § 335. Position of the Signature. So long as the wiiiiess has subscribed with suitable intent, the general law insists upon no particular place of subscription; though the usual and proper place is below an attestation clause, if there be one, otherwise at the left of the testator's signature, as in deeds and other attested documents. But in determining whether persons have subscribed a will, actually and intentionally as attesting witnesses, the position of their signatures may prove most material in a controversy.'^ If the names are written directly under an attestation clause, no difficulty arises; but when they are placed on some strange and unusual part of the paper, the probate of the will is in great peril. Thus, it has been considered that if names are placed under a particular clause or statement, the infer- ence seems to be prima facie that they were put there to give effect or to testify to the words of that clause or statement and not for 3. Griffiths v. Griffiths, L. R. 2 P. bate. Sharman, Re, L. R. 1 P. & D. & D. 300, Avhere one witness sig^ned 6G1. "A. B., Executor," as signifying, fur- Two testamentary instruments were ther, his consent to serve in that capa- prepared and signed by a testator, city, as the testator had requested. all on one sheet. Only the first ap- See also Payne v. Payne, 54 Ark. 415, peared to have been attested; and it 16 S. W. 1. was held that the attestation to the Where another and a superfluous first could not be construed to cover name is written among those of the tlie second. 2 Robert. 411. needful subscribing witnessps, it may 4. G Dem. (N. Y.) 163. be shown by extrinsic proof to have 5. The statute 1 Vict. c. 26 pre- been written there without any in- scribes where the testator shall sign, tontion of attesting; and upon sucii but is silent as to the witnesses, proof it may be omitted from tlic pio 112 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 335 fittesting the whole instrument.'' But proof that a full attestation, was tliereby intended will rebut such a presumption.^ When the will contains no regular attestation clause, it is cus- tomary and proper to use some such expression as " witness," ''attest/' " in the presence of," or '^ signed and acknowledged be- fore," by way of briefly attesting and showing why the names are placed there. These expressions, though convenient certainly, are not indispensable; for witnesses subscribe sufficiently, whenever they see the will executed by the testator, and proceed at once to sign their names on any part of it, with the intention of attesting it, and this whether explanatory words are placed on the paper or not.^ They need not sign near the testator, nor even near one another.^ This rule is liable, however, to statute variance;^ and 6. Thus, in Wilson's Goods, L. R. 1 P. & D. 269, a will was written on one page of a foolscap sheet, and the testator's name was signed at the bottom, with " Witness A. B." at the left. The second page contained a brief inventory of property, under wihich were three other signatures, " C. D.," " E. F.," and " G. H." Most of these parties were dead by the time of probate, and no te=;timony could be had to explain the circumstances of execution. Tlie court concluded that the last three names, from their posi- tion, were not placed upon the paper animo attestandi, and refused a pro- bate, since one witness, "A. B.," could not give the will validity. 7. Streatley's Goods, P. (1891) 172. 8. Roberts v. Phillips, 4 E. & B, 450. 9. lb. Here witnesses signed not ■only on a different side of the sheet from the testator, but so as to leave a considerable blank between their names and his, and yet the attestation was upheld. See also Braddock's Cioods, 1 P. & D. 433; Collins, Re, 5 41 Redf. 20. Witnesses may sign above instead of below the words designat- ing attestation, without invalidating the will. Moale v. Cutting, 59 Md. 510. And a will is well executed where a person signed in presence of two witnesses, his wife adding her as sent thereto, though one of the wit nesses, intending to attest the will signed his name below the wife's ex pressiou of assent. Potts v. Felton 70 Ind. 166. And see Murray v. Mur- ray, 39 Miss. 214. In Texas it is held of no importance that witnesses sign in and not after tlie attestation clause. Franks v. Chapman, 64 Tex. 159. And see Aker's Will, 66 N. E. 1103, 173 N. Y. 620 (at side sufficient under .statute); 29 So. 98, 127 Ala. 640. It matters not, under the Statute of Victoria, in what part of the will the attesting witnesses write their names, provided it appear that the signatures were meant to attest the requisite signature of the testator. 3 Curt. 748; 1 Robert. 757; 1 Wms. Exrs. 96; Roberts v. Phillips, supi'a. § 336 LAW OF WILLS. [PAET III. as the foot of the will and the vicinity of the testator's own signa- ture supply the natural situation for these body-guards of an in- strument which may need strong defence, there the witnesses^ names are safest found. Any part of the will which follows such) sigTiatures must be shown to have been written before tliey signed ; ^ and misconstruction of the motives under which they signed out of due place is the more possible when their own direct testimony is equally out of reach with that of the testator. § 336. The Same Subject: Attestation on a Different Paper. But the attestation or subscription by witnesses must be on the same sheet of paper as that which contains the testator's own sig- nature, or else upon some paper physically connected with that sheet. 'No particular mode of connection is prescribed by law ; and hence the fastening by tape, by eyelets, by mucilage, or evea by a pin, seems unobjectionable. Where papers are thus connected^ the testator may sign on one paper and the witnesses on another, provided their intent corresponded.^ But attestation or a subscription by witnesses on a piece of paper, detached and separated from the will and the testator's sig- nature, nor affixed in his presence to the paper at ttie time of exe- cution, fails of compliance with the policy of our law; we may as- By this we are to understand that witnesses shall sign at the end of the this intention appears upon all tlie will. 4 Dem. (N. Y.) 124; 1 Dem. proof. For, if no other evidence can 256; 54 N. Y. Supr. 127; Conway's be produced at probate except the in- Will, 124 N. Y. 455, 11 L. R, A. 796. strument, and the natural import of 2. 1 No. Cas. 396, 1 Jarm. Wills, its face raises a different view as to 84. what the names meant as they stood, 3. In Braddock's (roods, 1 P. D. a careless subscription in this respect 433, a codicil was pinned to the orig- may prove fatal to the will. inal will. The testator signed the 1. In Kentucky, contrary to the codicil, and the witnesses subscribed usual rule, attestation must be made on the back of the will. This, being at the end of the will; and any un- done animo attcsiandi, was held a reasonable gap between the testator's good subscription. And see Collins, signature and that of the witnesses Re, 5 Redf. 20, where the attestation may vitiate the will. Soward v. So- clause was pasted at the end of the ward, 1 Duv. 126. The New York will; Moore, Re, (1901) P. 44 (top statute is imperative that attesting of next page). 414 CnAP. III.] ATTESTATION AND SUBSCEIPTION. § 337 sume it to be void, as otherwise a door would be open to much fraud and perjury. § 337. The Same Subject: Attestation where a Will is written on Several Sheets. Most acts (including ibe English statute of Victoria) are silent concerning the attestation of wills which are written on several sheets. And the rule which consequently applies is that estab- lished under the Statute of Frauds; namely, that if tlie will be written on several sheets, whether fastened together or not, and the last sheet alone is attested in fonn, the whole will is well executed, provided all the sheets were in the room.* The Statute of Frauds did not require that all the sheets should have been seen by the witnesses ; ^ but under the policy of some later codes 'a more posi- tive exhibition of the whole will in their presence may be insisted upon ; and unquestionably, if the several pieces of paper are con- nected in their provisions and form a connected series, and are brought in this shape before the attesting witnesses at the time of their subscription, a single attestation will suffice for the whole.^ It is simply the later interpolation of sheets not actually at- tested by them, or a subtraction, which the law still guards against under these circumstances ; ^ for execution, whether by testator or witnesses, should receive its intended scope and no more. From this point of view, it is decidedly preferable that the sheets should be fastened together before execution at all, so that the integrity of the will may go undisputed ; and yet this fastening of parts may follow the attestation, without invalidating the disposition.^ lb is a question of fact in any case, whethcir, under all the circum- 4. Bond V. Seawell. 3 Burr. 1773; 5. lb.; 1 Wms. Exrs. 97. Marsh v. Marsh, 1 Sw. & Tr. 528; 6. Ela v. Edwards. 16 Gray. 91. Rees V. Eees. L. R. 3 P. & D. 84; Ela See 146 N. C. 25, 59 S. E. 163 {strict V. Edwards, 16 Gray, 91; Tonnele v. rule); M'artindale's Will, 127 N. Y. Hall, 4 Comst. 140; Wikoff's Appeal, S. 8S7. 15 Penn. St. 281, 53 Am. Dec. 597; 7. Ewen v. Franklin. Dsa. & Sw. 7; Gass V. Gass, 3 Humph. 278; 229 111. Eees v. Rees, L. R. 3 P. & D. 84. 115, 82 jSr. E. 275. 8. Jones v. Habersham, 63 Ga. 146. 415 § 339 LAW OF WILLS. [pAET IIL stances, the sheets as presented for probate constituted the identical will as actually and intentionally executed; and presumptions favor the will in its integrity as found at the testator's death.* But if sheets were then found scattered about, instead of together; or if tiiey failed to correspond in sense, as constituting one distinct instrument; oj." if the witnesses subscribed earlier sheets, but not the last; in all such cases, the circumstances would bear unfavor- ably.^ § 338. "Signing" and "Subscribing" Equivalent Terms; Dif- ferences as between Testator and Witnesses. There seems to be no vital distinction between the words " sign- ing " and " subscribing," as used by legislatures in the present connection. When witnesses are required to perform the manual act of subscribicg, they are called upon simply to make a valid signature in the same sense which applies to the testator, and not, as a literal construction might import, to " write under " him.^ But, as already observed, legislation permits a testator to " make his signature " or " acknowledge " before the witnesses at his option, while directing witnesses to " subscribe " in return, with- out any such option.^ And there remains still another distinction to observe, namely, that the testator may sign the will, either per- sonally or " by some other person in his presence, and by his direc- tion " ; while witnesses are directed to sign without any such ex- j)licit admission of a substitute.* This latter point of difference, let us now consider. § 339. Whether another may sign for the Subscribing Witness. By English construction of the Statute of Frauds, the witness must himself sign or subscribe animo attestandi, and the signa- 9. 1 Wms. Exrs. 97; Rees v. Rees, 3. Supra, §§ 321-325. L. R. 3 P. & D. 87; cases supra. 4. See 1 Vict. c. 26, § 9; also the 1. 1 Jarm. Wills, 84, 14 P. D. 49; lanj^age of the various American G Dem. (N. Y.) 262. codes on this subject. Under the 2. 1 Jarm. Wills, 82; Moore v. older Statute of Frauds, wliicli so King, 3 Curt. 243; Roberts v. Phil- many of our codes follow, a similar lip.^, 4 E. & B. 450, 1 Wms. Exrs. 96. dilTercnce of expression is found. 416 CHAP. III.] ATTESTATION AND SUBSCEIPTION. § 339 ture cannot be made by some other person for liim.^ And the rule is the same under the present statute of Victoria. It follows that one witness cannot subscribe for another.^ But we are still to re- member that one's signature by a mark or with a guided hand, is his own signature ; and one witness may in this matter help out another wdtness, besides signing his own name.'' In the United Sitates this rule is not uniformly stated, and, in fact, the question is seldom raised. But the doctrine, as generally expounded, denies, like that of the English cases, that a witness to a will signs or subscribes so as to satisfy the statute without some manual act on his part by way of attestation.* This theory is fortified by the recognized distinction that a witness cannot make acknowledgment of his signature as a testator may ; ^ and by the further omission of that statute option of signing by an- other which the local code, like that of England, expressly confers upon a testator. But there are States in which a different view is taken, namely, that the name of an attesting witness (espec- ially if unable to write) may be written by another at his request, in his presence and in the presence of the testator; ^ nor matters it that this other person is himself one of the subscribing witnesses.^ 5. 3 Curt. 243; 7 Jur. 205, 1045; 1 another, or write a name about his Jarm. Wills, 82. In Leverington's mark, etc., as under the English rule, Goods, 11 P. D. 80, a wife's signature consistently with treating the latter of the name of her husband, who was as signing for himself. 2 Bradf. 96, unable to write, was held an improper 392. attestation. 9. Supra, § 338. 6. 2 Notes Cas. 461; 1 Wms. Exrs. 1. Upchurch v. Upchurch, 16 B. 95. Mon. 102; Jesse v. Parker, 6 Gratt. 7. Harrison v. Elvin, 3 Q. B. 117; 57, 52 Am. Dec. 102. 1 Sw. & Tr. 153; Lewis v. Lewis, 2 2. lb.; and see Crawford's Will, 46 Sw. & Tr. 153. S. C. 299, 57 Am. St. Rep. 565. In 8. Le Roy, Ex parte, 3 Bradf. (N. Lord v. Lord, 58 N. H. 7, this view Y.) 227; 2 Bradf. 96, 392; Riley v. is adopted, but, as this writer thinks, Riley, 36 Ala. 496; Horton v. John- injiuliciously. It is true that the son, 18 G«o. 396; Bush v. McFarland, statute, in requiring an attestation 94 Tenn. 538, 45 Am. St. Rep. 760, of a will, aims to insure identity and 27 L. R. A. 662, 29 S. W. 899. But prevent the fraudulent substitution of one witness may guide the hand of another document, besides surround- 27 417 § 340 L-i-W OF WILLS. [PAET III. "Whenever a subscribing witness can sign for himself, being neither illiterate nor physically disabled, it seems the more objec- tionable still that another should sign for him ; ^ and for the fel- low-witnesses to affix such signature under any circumstances we deem a more impolitic course than for some other party to do so who 'might himself have served in place of the one whose name he wrote/ But for any third party to write out the signature of a witness for him so that the latter makes no mark, takes no share in the attestation and has no means of identifying the paper to which his aiame was affixed, is highly objectionable, to say the least.^ § 340. Subscribing " in Presence of " the Testator, etc. ; English Rule. ;N'ow as to signing or subscribing a will " in presence of " the ing the testator with witnesses to judge of his capacity. Under the Xew Hampshire law, moreover, there are three witnesses to a will, so that, one signing for another, two are left, as in England and many of our States. But were a legislature to require seven witnesses to attest and sub- scribe a will, the court ought not by construction to reduce the number by a single person; and this we think is really done whenever one subscrib- ing witness is permitted to sign the name of another, without any phy- sical participation by the latter in the act of attestation, and wherever the person who writes another's name cannot himself be treated as one of the essential number of separate wit- nesses. See further. Reaver's Appeal, 54 A. 875, 96 Md. 735, 94 Am. St. Rep. 610; Schnee v. Schnee, 60 P. 738, 61 Kan. 643. 3. Riley v. Riley, 36 Ala. 496; contra, Jesse v. Parker, supra. Even though illiterate or physically dis- abled, it is hardly supposable that any witness might not take hold of the pen and make his mark. See Dawkins v. Dawkins, 60 So. 289, 179 Ala. 666. 4. For in the case thus suggested, the policy of requiring two (or three) attesting witnesses is essentially ob- served at all events; and by a very slight stretch of construction, the agent might be treated as himself an attesting witness who subscribes an- other name with bona fide intent and meaning to authenticate the instru- ment. 5. See Simmons v. Leonard, 91 Tenn. 183, 30 Am. St. Rep. 875, 18 S. W. 280, where a devisee under the will made such a signature for an illiterate witness, partially blind, and the will was held invalid in conse- quence. 41S CHAP. III.] ATTESTATION AND SUBSCEIPTION. . § 340 testator. For in this provision our codes well harmonize, though seldom positive in declaring that witnesses shall sign in presence of one anotlier. The English decisions as to what shall be consid- ered " the presence " of the testator at the subscription are nmner- ous, stretching over a space of four centuries and commenting without a break upon the earlier and ' later enactments of Charles II. and Victoria, in both of which the same language is employed in this respect.^ The design of the legislature in requiring witnesses to sign in presence of the testator, was, as English authorities state, that the testator might have ocular or other bodily evidence of the identity of the instrument subscribed by them; and this design the courts have kept steadily in view, while fixing upon the legal sense of the word " presence."'^ Consequently the testator's ability to see his witnesses sign, or at least to take personal cognizance of their act, has been regarded as the main test of compliance with the statute; not without some free play, perhaps, with the literal ex- pression of the statute. Thus, if a testator, after having signed and published his will, and before the witnesses affix their signa- tures, falls into a state of insensibility or stupor (whether tem- porary or permanent), the attestation is not properly made.^ jSTor is the statute satisfied, when the will is attested in a secret and clandestine manner, though the testator be present in the same Toom.^ Nor where the witnesses subscribe in the same room, or in an adjoining room with the door left open, and the testator, who had signed some time previously, was not made aware of it.-' In short, an attestation fails of legal sufficiency, whenever the testa- tor, were he mentally capable of recognizing the act of subscription or not, was actually uncoi\scious of it ; " and even though a statute should say nothing in express terms of subscribing " in his pres- ence," we apprehend that the simple statute requirement of a sub- 6. Cf. Statutes, Appx.; 1 Wras. 9. Longford v. Eyre, 1 P. Wins. Exrs. 92. 740. 7. 1 Jarm. Wills, 86. 87. 1. Jenner v. t^nch, 5 P. D. 106. 8. Right V. Price, Dougl. 241. 2. 1 Jarm. Wills, 87. 419 § 341 LAW OF WILLS. [PAKT III. scription and attestation in addition to the testator's signature would justify the same legal conclusion.^ § 341. The Same Subject. But aside from the testator's mental consciousness of the act of attestation, which is always essential, these words "" in presence of " the testator are inconsistent with his physical separation from the witnesses at the scene of their attestation. One might issue directions or receive assurances while in a room and contiguous to his witnesses ; or indeed, in these modem days, converse by wire between houses which were miles apart; but all this would be in- consistent with a subscription in bodily presence such as might enable the testator to keep in view the identity of the paper so subscribed. Nor is it certain that the policy of such legislation regards the testator's convenience alone on the occasion, as English authorities have often stated ; for is not tliat " presence " equally desirable, from the witness's point of view, in order that the latter may judge of the testator's condition, of the identity of the instru- ment he is asked to sign, and of the bona fides of the whole tran- saction ? If attesting in the testator's absence, how lightly is his own solemn responsibility taken up, and how readily does he permit his position as a witness to be compromised. 'Contiguity, therefore, with an unintermpted view between testator and subscribing witness is deemed the main element to a physical signing in the conscious testator's presence. The sub- scription is not invalidated by not having been performed in the same room or even the same house, provided it took place within •the testator's range of vision. As in a case where witnesses left the testator, who lay in bed in one room, and subscribed their names at a table in another room opposite, and in sight through a passage, 3. The whole scope of our wills leg- a valid and legal manner, while he JHlation, in requiring the te^stator to was wholly unconscious that tliey sign or acknowledge before his wit- were doing so; and we should be re- nesses, in assuming that he .selects or luctant to believe that this insuffici- requesta persons to be witnesses, etc., ency depended wholly upon those seems to forbid the idea that they words " in presence of " the testator, could subscribe and attest the will in 420 CHAIMII.] ATT75STATION AND SUBSCKIPTTOX. § 341 the doors between being thrown open/ Or where a lobby inter- vened, but the testator might bave seen the subscription made in a gallery, through the lobby and a broken glass window,^ Or where a testatrix sat in her carriage, and the will was attested in the at- tx)rney's office, but not out of her sight.® In all such cases, the attestation is held good on the theory that the testator might at least have se«n the signing, considering his position and the state of his health at the time of the transaction ; and it is deemed imma- terial that he did not see, when he might have done so; for the act, being done in his presence, could not have been vitiated by his turning or looking away.'' On the other hand, no mere contiguity to the witnesses will constitute a " presence " within the act, if the testator's position be such that he cannot possibly see them sign. As where, for in- stance, he occupies his bed-chamber, and the witnesses subscribe in an outer hall where they are necessarily hidden from his sight by an inter\^ening flight of stairs.^ Or where his position, which he cannot readily change, is such that the witnesses are in reality out of his sight.® If the subscription be made in an adjoining room witJi the door closed, it is not enough that the testator might have seen it had the door stood open ; nor even will a subscription in the room he occupies suffice, provided that from his actual position he could not have seen it done. But unless some material obstacle obstructs the vision, we here suppose that the testator is sick and feeble, propped up in bed, or requiring some aid in order to bring him into a right posture, in which case, of course, his disability is an important factor in determining whether or not he might have seen his witnesses subscribe. Thus the will of one who lay in bed 4. Davy v. Smith, 3 Salk. 395. in a different room from that oocu- 6. Sliires v. Glasscock, 2 Salk. 688. pied by the testator, it must be shown 6. Casson v. Dade, 1 M. & S. 294; 1 that his position was such that he Bro. C. C. 99; Norton v. Bazett, 1 might have seen the act. Norton v. Deane, 259. Bazett, Dea. & Sw. 259; 3 Curt. 118. 7. 1 Jarms. Wills, 87, 88; 1 Wms. 9. Wright v. Manifold, 1 M. & S. Exrs. 92, 93. 29. And see 1 Jarm. 88; 1 Deane, 8. Eccleston v. Petty. Carth. 79. 259; 1 Curt. 914; 2 Curt. 395; 3 Curt* Where the subscription takes place 118; 1 Wms. Exrs. 92. 421 § 342 LAW OF WILLS. [PAET III. witli the curtains drawn while the will was attested in front of him, was admitted to probate because he might easily have seen the act by pushing the curtain aside ; ^ but that of another was re- fused probate under like circumstances upon the distinction that the testatrix was not only too weak to have opened the curtain herself, but lay helplessly with her back to the witnesses.^ In fine, the true test as asserted in the English cases is, not whether the conscious testator saw the witnesses sign, but whether he might have seen them sign, considering his mental and physical condition, and his posture at the time of their subscription; ^ and the result of the cases is to enjoin it carefully upon all those who are charged with the direction of such business, where the testator himself is weak and unable to move about freely, not to peril the validity of the will bv iiny false delicacy about bringing witnesses and the sick testator close together. § 342. Subscribing " in Presence of " the Testator, etc. ; Ameri- can Rule. Though the judiciary of each State may construe this require- ment of the testator's presence more or less lightly, the American rule adopts in the main the distinctions of the English cases. Tho policy of such enactments in this country is understood in the same sense ; namely, to prevent substitution and fraud upon the testator. And an attestation made in the same room with the testator is treated as prima facie an attestation made in his presence; while an attestation made in another room is prima facie not made in his presence; proof of the actual facts being admissible in either case to establish tho contrary.* 1. Newton v. Clarke, 2 Curt. 320. was not theirs. 1 P. Wms. 239; 1 2. Tribe v. Tribe, 1 Robert. 775; Jarm. Wills, 89. 1 Wms. Exrs. 92. 4. Noil v. Neil, 1 Leigli, 6; Mande- 3. Trinnel's Goods, 11 Jur. N. S. villo v. Parker, 31 N. J. Eq. 242, 252; 248; Kellick, Re, 3 Sw. & Tr. 57S. Lamb v. Girtman, 33 Geo. 289; 7 If the witnesses attest out of the Harr. & .J. 61; 5 Mon. 199, 17 Am. testator's j)rosence, it does not help Dec. 60; 50 N. J. Eq. 701, 40 A. 438. the ca.sc that the fault of doing so This seems likewise to be the English 4-22 CHAP. III.] ATTESTATION AND SUBSCEIPTION. § 342 Where, therefore, the witnesses sign the will in an adjoining room, out of the testator's sight as he lies on his bed, the local statute fails of compliance, although the door between stands partly open ; ^ nor, as some extreme cases hold, does it even avail that the testator could see the bodies of the witnesses as they wrote, if the will itself was beyond the range of his vision.^ It is not enough to subscribe in the same room with the testator, where his relative situation forbids his perceiving the act.^ Indeed, to sjwak gener- ally, if the testator be ill, unable to change his position readily for himself, or confined to his bed, his posture at the time of attesta- tion should be such as to enable 'him to perceive his witnesses sub- scribe; and ability to perceive is here construed with some refer- ence to this physical condition at the time of subscription.^ For, rule of presumptions in such cases. See preceding section. The general rule of our States, like that of Eng- land, makes it unessential that wit- nesses should sign " in presence of " one another. Supra, § 327, 64 Md. 138. In a very few States, the code drops the direction of a signing " in pres- ence of " the testator by the wit- nesses. This limits the doctrine of constructive presence. The New York code affords an instance in this respect. 11 Barb. 124; Lewis v. Lewis, 11 Kern. 220. See 5 Redf. (N. Y.) 316. See also the Arkansas rule as stated in 14 Ark. 675; 17 Ark. 292. A will is sufficiently signed in the presence of the testatrix, al- though her name had been previously written thereto by another person, where the latter, in her presence and by her request adds to her name words showing that he wrote it at her request. Leonard Ex parte, 39 S. C. 518, 22 L. R. A. 302, 18 S. E. 216. 5. Mandeville v. Parker, 31 N. J. Eq. 242, 7 Harr. & J. 61; Boldry v. Parris, 2 Gush. 433; Lamb v. Girt- man, 33 Ga. 289; 6 Ga. 539; Mendell v. Dunbar, 169 Mass. 74. Nor can an imperfect subsequent action on the part of witnesses, with the testator's assent, cure such defect. lb. 6. Graham v. Graham, 10 Ired. 219. But cf. Bynum v. Bynum, 11 Ired. 632; Sturdivant v. Bircliett, 10 Gratt. 67; § 343 post. 7. Neil V. Neil, 1 Leigh, G ; Orndorff V. Hummer, 12 B. Mon. 619; E^e^ v. Roberts, 26 Ga. 294; 23 Ga. 441; Downie's Will, 42 Wis. 66; Aikin v. Weckerly, 19 Mich. 482. 8. Jones v. Tuck, 3 Jones, 202; Russell V. Falls, 3 Harr. & M. 463; Reynolds v. Reynolds, 1 Spears, 253, 40 Am. Dec. 599; Maynard v. Vin- ton, 59 Mich. 139, 26 N. W. 401, 60 Am. Rep. 276; Witt v. Gardiner, 158 111. 176, 49 Am. St. Rep. 150, 41 N. E. 781; 177 111. 43, 52 N. E. 368. 423 § 342 LAW OF WILLS. [pAKT III. according to a somewtat recent decision, it is not sufficient that tlie testator and the witnesses be merely present together and that the testator looks straight at the witnesses, if he does not recognize or address them, but appears to be utterly unconscious of their pres- ence.^ But if, while the attesting witnesses are subscribing, the testator, conscious of the act, is in an adjoining room, where by the mere act of volition he can witness the attestation, this constitutes a sub- scription in his presence.^ And if thus conscious and capable of see- ing the act with the witnesses, the more surely is the act done in his presence, when in the same room with him.^ Whenever, in fact, it appears that the subscription was done in the immediate or proxi- mate and conscious presence of ..he testator, so that he could have seen it if he had felt disposed, there is no need of showing that he actually saw the witnesses subscribe their names.^ And if the tes- tator enjoys normal health and may move about at pleasure, his change of place while they are signing will not be readily supposed to have deprived them of his presence.* 9. Chappell v. Trent. 90 Va. 849, arcoinpanimcnt of their subscription. 19 S. E. 314. Watson v. Piper, 32 Miss. 451; Meur- 1. Meuer's Will, 44 Wis. 392; By- er's Will, 44 Wis. 392; McGuire v. num V. Bynum, 11 Ired. 632; :McEI- Kerr, 2 Bradf. (N. Y.) 244; Aurand fresh V. Guard, 32 Ind. 408; Nock ■<. v. Wilt, 9 Penn. St. 54; Hall v. Hall,. Nock, 10 Gratt. 106; Bundy v. Mc- 18 Ga. 40; Jackson v. Moore, 14 La. Knight, 48 Ind. 502; Ambre v. Weis- Ann. 213. And see Etchison v. haar, 74 111. 109. Etchison, 53 Md. 348. Consciousness 2. 7 Jones, 593; Pope v. Pickitt, on his part may consist with an oc- 51 Ala. 584; 12 Ala. 687; Mason v. casional stupor. 67 Miss. 529, 491. Harrison, 5 Harr. & J. 480. See, also. Calkins v. Calkins, 75 N. 3. Allen's Will, 25 Minn. 39; Bald E. 182, 216 111. 458, 1 L. E. A. (N. win V. Baldwin, 81 Va. 405, 59 Am. S.) 393 (insufllcient where signed out Rep. 669; Ayres v. Ayres, 43 N. J. of range of testator's vision, though Eq. 565, 12 A. 621; Walker v. shown to him and approved after- \\"alk('r, 67 Miss. 529, 7 So. 491. ward) ; Healey v. Bartlett, 59 A. 617, 4. Wright V. Lewis, 5 Rich. 212, 55 73 N. 11. 110; 63 N. E. 1021, 196 111. Am. Dec. 714. 484, 108 Am. St. Rep. 233 (will but Not only the corporeal presence of not witnesses clearly in sight) ; 74 N. the testator is essential to tlie valid- Y. S. 937; Raymond v. W;igner, 59 ity of an attestation, but liis mental N. E. 811, 178 Mass. 315; Burncy v. 424 CHAr. III.] ATTESTATION AND SUBSCKIPTION. § 343 § 343. Subscription "in Presence of" a Testator Unable to see; Cognizance which dispenses with Sight. Where the testator is blind, or of vision so impaired that he can- not see the act of subscription, the witnesses, it is sometimes said, must sign where, if able to see, the testator might have seen them.* But the more natural statement appears to be that, if ocular cogni- zance by the testator is out of the question, the subscription should l>e made where he may take a genuine cognizance of the act by his other senses.® As most men can use their eyes when their wills are executed, vision is the usual and safest test of presence, but it is not the only one ; for one may take note of the 'presence of an- other by his hearing or touch ; and where one cannot use his sense of sight, but is sensible of what is being done, the witnesses sub- scribing in the same room, or in such close proximity as to be within the line of vision of one in his position who could see, and within his hearing, there is a sufficient subscription in his presence.' At all events, the act should be performed in the conscious pres- ence of the testator, and in such proximity to him that the bodily sciis^es which he must needs rely upon may be used with fair ad- vantage to ward off all deception.^ And one or two of our latest Allen, 34 S. E. 500, 125 N. C. 314, 79 that he could have heard the scratch- S. E. 288, 164 N. C. 363, 74 Am. St. ing of their pens. Rep. 637 (should be able to see botli 8. In Riggs v. Riggs, supra (1883), will and witnesses), 21 R. I. 533, 45 the will and codicil were sus- A. 551; 80 Minn. 180, 83 N. W. 58; tained which a testator made Avaro v. Avaro, 138 S. W. 500, 235 whose sense of vision had been affect- Mo. 424; 160 S. W. 261, 155 Ky. 738. ed by an injury. His sight was 5. Piercy, lie, 1 Robert. 278. really unimpaired, but he was com- 6. Ray v. Hill, 3 Strobh. 297; pelled to lie on his bed, looking up- Fincham v. Edwards, 3 Curt. 33; ward, without turning his head. As Riggs V. Riggs, 135 Mass. 238, 46 he lay in this position, each instru- Am. Rep. 464. ment was in turn executed. The will 7. Morton, C. J., in Riggs v. R'ggs, was signed by the witnesses at a 135 Mass. 238, 241, 46 Am. Rep. 464; table in the adjoining room, nine Ray V. Hill, supra, is a case where feet distant from the testator. The the witnesses, when signing, were so door was open, and the table was in near to the testator, a blind man, his natural line of vision, had he been able to look. He could hear all 425 § 343 LAW OF WILLS. [part III. cases very sensibly repel the inference of some older precedents that subscription must be done in actual sight of the testator, where all the circumstances show his complete cognizance in some other way of the subscription, so that fraud cannot have operated in the execution of that particular instrument.^ that was said, and knew and under- stood all that was done, and after the Avitnesses had signed the will, it was handed to him, and he read their names as signed and said he was glad it was done. The codicil was exe- cuted while he Avas in the same prostrate condition; and here the witnesses attested at a table by the side of the bed, about four feet from his head, so that by turning his head, had he been able to do so, he could have seen them. In this case the court takes it for granted that other courts would have decided the question differently, upon a narrower construction of such a statute. This, however, appears by no means certain; for it is commonly admitted that subscription before a blind man constitutes an exception to the general rule; and here there was something like blindness, in a phy- sical incapacity to see witnesses as they subscribed in the natural range of vision. The witnesses signed in this natural range of vision, and could not possibly have signed where lie might actually see them, without taking an unnatural and ludicrous position. Consequently, this decision rested fairly upon the exception per- mitted in case of blin^dness. " Certainly," observes Morton, C J., " if two blind men are in the same room, talking together, they are in each other's presence. If two men iiro in the same room, conversing to- gether, and either or both bandage their eyes, they do not cease to be in each other's presence. ... It would be against the spirit of our statutes to hold that, because a man is blind, or because he is obliged to keep his eyes bandaged, or because, by an in- jury, he is prevented from using his sight, he is deprived of the right to make a will." lb. In fine, a case like the above should turn upon its peculiar necessity; and we are not to infer that a testator capable of seeing may bandage his eyes at discretion and tlien rely upon an attestation made out by the evidence of his other senses. 9. Cook V. Winchester, 81 Mich. 581, 8 L. R. A. 822, 46 N. W. 146 (1890), is in i>oint. The testatrix (as in Riggs v. Riggs, supra), though the witnesses signed out of the line of her vision, was within hearing distance, and understood what was done, and expressly ap- proved at once the whole transaction, looking at the signatures and the will, in presence of the witnesses, after the subscription had taken place. Sturdivant v. Birchett, 10 Gratt. 67 (by a bare majority), sus- tains the same doctrine. See also Arneson's Will, 107 N. W. 21, 128 Wis. 112; Ellis v. Flannigan, 97 N. E. 696, 253 111. 397. The fact that testator was a law- yer who presumably knew the im- portance of seeing his witnesses sign 426 ■CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 345 § 344. Certificate of Acknowledgment; Superfluous Matter; Magistrate, etc.; Other Formalities. The certificate of acknowledgment usual in deeds is altogotlier superfiuoiis in a will ; but it may have the useful effect, provided all other formalities are consistent, of converting the notary or magistrate himself into one of the subscribing witnesses.^ A clerk of a court who witnesses a will does not affect its validity by at- taching his official seal and certificate ; at the same time he should have dispensed with it.^ For a witness to add his place of recidence to his signature is also, as a rule, superfluous, though such addition may sometimes be found useful when witnesses are to be identified or sought out for probate.^ § 345. Re-execution, etc., if Necessary, should be conducted v^^ith Careful Regard for Formalities. Where a first attempt at executing a will fails through some informality, and a testator must go through the solemnity again with the same or other witnesses, care should be taken to conduct the new transaction with a scrupulous regard for all necessary forms, and to avoid the ready danger of fitting the first imperfect solemnities into the second, so that failure again follows imperfec- tion. A witness who subscribes at the first attempt should resulv scribe, if serving at the second ; for as his acknowledgment of a former signature is not good,* neither is it enough for him to re- trace his former name with a dry pen ^ instead of a wet one, nor may b« \Torth considering in a case quiring the residence of witness to be of doubtful cognizance. 56 N. J. Eq. stated should be complied with, and 761. a penalty is sometimes imposed for 1. Murray V. Murphy. 39 Miss. 214; non-compliance. See 13-1 N. Y. S. Keely v. Moore, 25 S. Ct. 169, 196 U. 615. S. 31, 49 L. Ed. 376. But cf. Hull's 4. Supra, § 338. Will, 89 N. W. 979. 117 Iowa 738. 5. Casement v. Fulton, 5 Moore P. 2. 64 Tex. 159; Payne v. Payne, 54 C. 130, 1 Rob. 773; Maddock's Ariv. 415, 18 S. W. 1. Goods, L. R. 3 P. & D. 169. 3. 68 A. 754. A local statute re- 427 346 LAW OF WILLS. [part in» even to change his first signature, with the purpose, not of rewrit- ing, but completing it as first written.® § 346. Attestation Clause no Essential Part of a Will, but of Great Convenience. The Statute of Victoria, expressly declares that " no form of attestation shall be necessary " ; '' and aside from such, enactments, a formal attestation clause is no essential part of a will, but the insti-ument may be well executed without it.^ It is snfficient, therefore, that the witnesses, with attesting intent, subscribe under or against the word " witnesses," or use some other ■corresponding expression, or simply subscribe their names without any such ex- pression at all.^ 6. Hindmarsh v. Charlton, 8 H. L. Cas. 160, 2 Rob. 311. On the other hand, where the tes- tator indorses his will by way of rati- fying its contents, but insufficiently for a re-execution, no attestation by witnesses to this indorsement can amount to an attestation of the will. Patterson v. Ransom, 55 Ind. 102. Cf. Wright V. Wright, 5 Ind. 389; Dix- on's Appeal, 55 Penn. St. 424. If a testator, after his will on var- ious sheets of paper has been duly executed, takes out and. destroys some sheets and substitutes others, leaving his original signature at the end, and the will is neither re-signed nor reattested, probate may be re- fused. Treolar v. Lean, 14 P. D. 49. Aliter, where the attempt to change one's will is not so carried out as to destroy the identity of the really exe- cuted will. 6 Dem. 262; Woodward's Goods, L. R. 2 P. D. 602. See Part IV. c. 1, post. 7. Statt. 1 Vict. c. 26, § 9; Appx. 8. 1 Wmfl. Exrs. 93; 1 Jarm. Wills, 85; Roberts v. I'hillips, 4 E. & R. 450; 10 Paige, 85, per Walworth, Ch.; Ela v. Edwards, 16 Gray, 91; 146 Ind. 282. 9. A will without any words of at- testation may be good. Comyn, 531; 2 Str. 1109; Bryan v. White, 5 E. L. & Eq. 579; Ela v. Edwards, 16 Gray, 91; Raskin v. Raskin, 36 N. Y. 416; 48 Barb. 200. The word " witness " or " witnesses " preceding the signa- ture of the witnesses is sufficient. Os- borne v. Cook, 11 Cush. 532, 59 Am. Dec. 155; Fry's Will, 2 R. I. 88; Con- boy V, Jennings, 1 N. Y. Supr. 622. " It never has been held that a tes- timonium clause is necessary or that the witnesses should be described as witnesses ; nothing more is required than that the will should be attested [and subscribed] by the witnesses." 4 E. & B. 450. And see Taylor v. Brodhead, 5 Redf. (N. Y.) 624; Ole- rick V. Ross, 146 Ind. 282. No attes- tation clause, nor even the word " attest " is needful to precede an at- testation by witnesses. Berberet v. Berberet. 131 Mo. 399, 33 S. W. 61, 52 Am. St. Rep. 634. And set" 140 428 CHAP. III.] ATTESTATIOISr AND SUBSCRIPTION. § 346 ]S[evertlicless, the use of an attestation clause, with full recital of the particulars usual in a careful execution, is highly to he com- mended; both as a guide in pursuing the formalities needful in so solemn a transaction, and for the sake, besides, of furnishing presumptive testimony that all has been rightly done, when sub- scribing witnesses are dead, forgetful, or beyond the reach of process. Nor matters it, that the execution, as thus recited, be- eomes more formal than tlie local statute insisted upon ; for in sim- ple details it is wiser to be needlessly particular than not particular enough.^ As a statement of facts transpiring at the time when the will was executed, the attestation clause is useful as a memorandum to aid the attesting witnesses themselves in recalling the circum- stances at the time of probate ; ^ besides indicating that whoever directed tlie execution understood what formalities were needful and saw them pursued.^ If the will contains no attestation clause, no written memoran- dum to show prima facie in connection with the signatures that the legal essentials of execution were fully complied with, the pro- pounder of the will is simply put to more onerous proof at the probate in case of a contest. The capricious memory of a subscrib- ing witness is in such a case less easily guided ; and should one or all of the witnesses happen to be dead or absent from the jurisdic- 111. 649, 30 N. E. 683, 33 Am. St. Rep. tails useful on such an occasion, but 265 ; 77 N. Y. S. 643 ; Hull's Will, 89 not under most of our codes abso- N. W. 979, 117 Iowa 738; Avaro v. lutely indispensable. Avaro, 138 S. W. 500, 235 Mo. 424; 2. Roberts v. Phillips, 4 E. & B. 136 N. W. 223. 457; Taylor v. Brodhead, 5 Redf. 1. See form of attestation used in (X. Y. ) 624; Tappen v. Davidson, 27 Appx. ]Sr. J. Eq. 459; Ela v. Edwards, 16 A good form of attestation clause Gray, 91; Cottrell, Re, 95 N. Y. 329; is as follows: "Signed, s:aled, pub- Hobart v. Hobart, 154 111. 610, 45 lished and declared, by the said tps- Am. St. Rep. 151, 39 N. E. 581. tator, as and for his last will and 3. Walworth, C, in ChaflFee v. testament, in the presence of us, who Baptist Convention, 10 Paige 85, 40 at his request and in the presence of Am. Dec. 225. It is a wise precaution each other, have hereunto subscribed to read over the attestation clause to our names as attesting witnesses." the witnesses in the testator's pres- This, it is perceived, recites some de- ence before they sign. 429 § 347 LAW OF WILLS. [PART III. tion, or to testify unfavorably, satisfactory evidence from other sources would have to be adduced, showing to the reasonable satis- faction of court or jury that all the solemnities required by the statute were in fact duly observed. It is safer, then, where no at- testation clause is used, for the witnesses to subscribe under or against some such word as " witness' ' or " attest " than to sign with no explanatory word at all, and thus widen the uncertain range of oral and extrinsic proof. § 347. Attestation Clause; Proof that all Formalities were com- plied with, etc. The advantage of an attestation clause with suitable recitals is shown in many of our decisions relating to the proof of wills. Where, indeed, there is nothing but a formal attestation clause on one side, and the testimony decidedly adverse of all subscribing witnesses on the other, probate of a will has been refused.* But, with the aid of a proper attestation clause to contradict such per- sons, or possibly without it, wills have been established in proof, against the concurring statements of both subscribing witnesses or the statement of either, that the legal requirements of execution were not fully complied with.^ And wherever these witnesses fail to recollect and give no positive testimony, or cannot, both or all,, be produced in court, the clearer the recitals of an attestation clause, the stronger becomes the presumption that the will was executed in all details as the law requires.^ It matters little, under 4. Croft V. Croft, 4 Sw. & Tr. 10; witnesses. Cottrell Re, 95 N. Y. 329. WooUej' V. VVoolley, 95 N. Y. 231. And see McCurdy v. Neall, 42 N. J. 5. 6 No. Cas. 699; Wright v. Eq. 333; 154 111. 610. Rogers, L. R. 1 P. & D. 678. A regu- 6. Guillim v. Guillim, 3 Sw. & Tr. lar attestation clause, regularly 300; Huckvale's Goods, L. R. 1 P. & .signed, and corroborated either by the D. 375; 1 Jann. Wills, 86; Cheatham circumstances surrounding the act, v. Hatcher, 30 Gratt. 56, 32 Am. Rep. tlie testimony of other witnesses to 650; Schoul. Exrs. & Admrs. §§ 1076- the fact of due execution, or other 1081 (Vol. IT.) ; 19 Hun 630. Tt may competent evidence, may establish the justly be concluded that the memory duo execution of the will against the of a witness has failed him, under positive testimony of the subscribing these cirrcumstances. Pepoon's Will, 430 CIIAP. III.] ATTESTATION AND SUBSCRIPTION. 347 such circumstances, that subscribing witnesses cannot testify affirmatively to the facts thus recited ; that the memory fails ; that details are not orally shown with clearness.^ And though the at- testing witnesses were all dead or beyond the reach of process, proof of their handwriting would in general make out a prima faoie case of due execution, which, if aided by the recitals of a full attestation clause, would afford a very strong presumption, unless the contrary appeared on the face of the will.^ But in no case will the presumption of compliance with the statutory formalities arise unless the will appears on its face to have been duly executed.® And any such presumption is rebutted by clear proof to the contrary.^ Insufficient attestation is not to be set up collaterally against a will admitted to probate.^ 91 N. Y. 255. Of course imputations more serious may affect his credi- bility, in some cases. If one sub- scribing witness testifies positively to the due execution of the will, the want of the memory of the other cannot overcome it. Higgins's Will, 94 N. Y. 554. See Moore Re (1901), P. 44; 72 N. E. 128 (Ind. 1904) ; 59 A. 874 (N. J. 1905) ; 94 N. W. 705. 7. Meurer's Will, 44 Wis. 392; Brown v. Clark, 77 N. Y. 369 ; 2 Dem. (N. Y.) 482; Rugg v. Rugg, S3 N. Y. 592; 4 Redf. 165; 41 N. J. Eq. 284, 7 A. 443; Arneson's Will, 128 Wis. 112. 8. See.§§ 177, 178; Tilden v. Til- den, 13 Gray, 110; Lewis v. Lewis, 11 N. Y. 220; Vernon v. Kirk, 30 Pa. St. 218; Brinckerhoflf v. Remsen, 8 Paige 499; Ela v. Edwards, 16 Gray 91, 10 Allen 357; Deupree v. Deupree, 45 Ga. 415; Barnes v. Barnes, 66 ile. 286; Kellum Re, 52 N. y. 517; Al- paugh's Will, 23 X. J. Eq. 507; Clarke v. Dunnavant, 10 Leigh 13; Welch v. Welch, 9 Rich. 133; Robin- son V. Brewster, 140 111. 649, 33 Am. St. Rep. 265, 30 N. E. 683. And es- pecially if the attestation clause be written by the testator himself. Al- paugh's Will, supra. Or a profes- sional man attended the execution. 4 Redf. 165. Or the testator wroie out his own will. Woodhouse v. Bal- four, 13 P. D. 2; 23 N. J. Eq. 507. If a will appears on its face to be duly executed, the presumption is that all was rightly done even though the attestation clause omit to state some essential particular. Schoul. Exrs. §§ 1076-81 (Vol. II.), 1 Robert. 5. Where a witness in fact attested a testator's signature, but the attestation clause described him as only attesting the signatures of two other witnesses, probate of the Avill was granted. Mason v. Bishop, 1 C. & E. 21. 9. 1 Jarm. Wills, 86. 1. As if it should be shown that the names of the witnesses were forged by the testator. Lee's Goods, 4 Jur. N. S. 490. 2. Leatherwood v. Sullivan, 81 Ala. 458, 1 So. 718. 431 § 34S LAW OF WILLS. [pART III. § 348. Subscribing Witnesses much relied upon; Effect of Other Testimony. Subscribing witnesses are much relied upon to establish due execution of the will ; nor can the testimony of persons acciden- tally present, who had nothing to do with the transaction, be enti- tled to equal consideration.^ Though strangers personally to the testator, their concurring testimony alone may well establish the due execution in which they participated ; * and even in a conflict of evidence great weight is given to their several statements. But as between such witnesses, one may from character, habits or surroundings, be more trustworthy than the other, where they disagree; ^ and the interested or disinterested nature of such testi- mony will often determine the weight to be given it. Those called upon to sign as witnesses to a will should see that all is bona fide in the execution ; that the testator appears mentally sound, and that no fraud or coercion is practiced upon him.^ A subscribing witness who stultifies himself in his testimony or seeks to invali- date the will he has attested as not duly made deserves no great credence but may be viewed with suspicion.^ Nor is the prolate of a will dependent on the recollection or veracity of any subscrib- ing witness ; ^ but other pertinent testimony may be adduced though the subscribing witnesses be not all dead, non-resident, or insane.* Where subscribing witnesses cannot be found, after a 3. Higgins's Will, 94 N. Y. 554. 7. See 173 Penn. St. 298, 33 A. 4. Marx v. McGlynn, 88 N. Y. 357. 1100; Cheetham v. Hatcher, 30 Gratt. 5. A disinterested lawyer who at- 56, 33 Am. Rep. 650; 62 Iowa 163, 17 tends to the execution and is ex- N. W. 456; Bernsee's Will, 141 N. Y. perienced in such matters should 389, 36 N. E. 314. carry great weight. Neiheisel v. 8. Abbott v. Abbott, 41 Mich. 540, Toerge, 4 Redf. (N. Y.) 328; 50 S. 2 N. W. 810. Wiiere neither of the C. 95, 27 S. E. 555. The testimony attesting witnesses knows whether of a disinterested draftsman is im- the testator, an infirm and aged portant on questions of fraud or sub- person, nearly blind, could read the stiiution. Harp v. Parr, 168 111. 459, will or was advised of its contents, 48 N. E. 113. other testimony should be sought. 6. Martin's Will, 144 N. Y. S. 174; Cadmus v. Oakley, 2 Dem. (N. Y.) Smith V. Goodell, 101 N. E. 255, 258 298. ill. ]\r,. 9. Reeve v. Crosby, 3 Redf. 74; 432 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 349 diligent and honest inquiry satisfactory to the court, other evidence will be admitted to prove the signature.^ In these and similar points, the common rules of evidence will apply, subject to the local enactment and practice.^ In general, the subscribing witnesses establish the signature to a will, and not its contents.' Their declarations should be limited in proof accordingly. Even the declarations of the deceased him- self as to the execution or contents of his vnll are only admissible under strict conditions; and his complete and duly executed will is not ordinarily to be affected by proof of past declarations which tend to dispute its plain tenor.* § 349. Attestation to the Sanity of the Testator; Presumption, etc. As a formal attestation clause may be dispensed with, so may the formal recital in such a clause that the testator appeared at the time of execution of sound mind, and to have executed the instru- ment voluntarily and without compulsion. Recitals somewhat Beadles v. Alexander, 9 Baxt. 604; 107 Iowa, 723, 70 Am. St. Rep. 228, 77 N. W. 467. All of tlie subscrib- ing witnesses need not be sworn in a contest. Cheatham v. Hatcher, 30 Gratt. 56 ; Abbott v. Abbott, 41 Mich. 540, 2 N. W. 810; 120 N. C. 270, 26 S. E. 810. But the absence of a sub- scribing witness whose testimony might have been obtained is a circum- stance worthy of weight. And see New York code, § 2618, etc., referred to in Graber v. Haaz, 2 Demarest, 216. A will may be proved by proof of the signatures of testator and sub- scribing witnesses, even though the latter fail to remember the act of execution. 50 S. C. 95, 27 S. E. 555; Gillis V. Gillis, 96 Ga. 1, 51 Am. St. Rep. 121, 30 L. R. A. 143, 23 S. E. 107. 28 4^ 1. Givin V. Green, 10 Phila. 99. 2. See supra, §§ 169-213; Schoul. Exrs. & Admrs. §§ 1076-1081 (Vol. II.). In Massachusetts practice, all the attesting witnesses must be called in a contest when accessible; but there is no rule of law that requires them all to be examined at the out- set or in strict order. Howes v. Col- burn, 165 Mass. 385. Where sub- scribing witnesses are dead, etc , proof of their handwriting is admis- sible, and such other secondary evi- dence as is usual in contracts. 3. Baker's Appeal, 107 Penn. Pt. 381, 52 Am. Rep. 478; Bott v. Wood, 5'6 Miss. 136; 140 111. 649, 33 Am. St. Rep. 265, 30 N. E. 683. 4. Byers v. Hoppe, 61 Md. 206 ; Mer- cer v. Mackin, 14 Bush, 434; Shaw V. Shaw, 1 Dem. (N. Y.) 21. § 350 LAW OF WILLS. [PART III. similar are sometimes prescribed, however, for the acknowledg- ment of a deed in specified instances ; and the convenience of such a recital in a will is obvious. There are one or two American States whose codes favor at least, if they do not require, a formal attestation by the subscribing witnesses as to the sanity of the tes- tator as well as his signature ; "" and a full and complete attestation clause gives presumptive strength to whatever it may recite.® Subject to what has been elsewhere said of the proof of mental competency, the proof of a testator's signature to a will raises a presumption that he executed it understandingly.'^ And it may also be presumed that each witness who subscribed thought the testator competent mentally and under no coercion at the time of execution.^ § 350. " Credible " or " Competent " Witnesses ; who are Such, With a brief statement of the qualification of witnesses to a will, we shall close the present chapter. The Statute of Frauds required that every devise of land should be attested by " credible " wit- nesses ; ^ an epithet for which " competent " has been substituted in most of our American codes concerning wills, as more precise and definite,^ while the Wills Act of Victoria drops the adjective altogether.^ By " credible " witnesses the English law has understood such persons as were not disqualified from testifying in courts of justice by mental imbecility, crime or interest.^ In American practice, 5. See Missouri Statute of Wills 1. In the Massachusetts code this as cited in Withington v. Withing- substitution has taken place. Mass. ton, 7 Mo. 589; 111. Eev. Stats. 1880, Pub. Stats, c. 127, §§ 1, 2. See 83 c. 148, p. 1108; supra, § 183. Ky. 345, to the eiFect that "credible" 6. Bernsee's Will, 141 N. Y. 389, in the statute means " comp;tent."^ 36 N. E. 314. See also Harp v. Parr, 168 111. 459, 7. §§ 169-213; 159 111. 591; 37 S. 48 N. E. 113. C. 384. 2. See Act 1 Vict. c. 26, § 9; 8. Mordecai v. Canty, 68 S. E. 1049, Appx. post. By § 14 of this enaot- 86 S. C. 470; supra, §§ 177-183; ment it is declared that a will shall Grant's Will, 135 N. W. 833. 149 Wis. not be void because of the incompe- 330. tency of an attesting witness. 9. 1 Jarm. Wills, 70, 90. 3. 1 .larm. 70, 90; 1 Burr. 414. 434 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 351 " credible " signifies 'the same as " competent " ; that is to say, ■witnesses who are not disqualified to testify by the common-law rules of evidence at the time of attestation/ as various codes are somewhat explicit in declaring ; ^ and hence a person convicted of crime might in most (States legally witness a will, and the fact of his previous or subsequent conviction could only be used to im- peach his testimony.® § 351. Competency on Common-Law Principle; as referring to Date of Subscribing, etc. Upon common-law principle, the qualification or disqualifica- tion of a witness is usually raised with reference to the time when he is called upon to testify. Nor is competency at that date to be left unconsidered ; as where, for instance, a witness who subscribed while in sound mind, has become insane by the time the probate of the will is at issue, in which case, of course, his testimony can- not be taken. But his incompetency at this later date does not defeat the will, whose attestation and subscription was a sort of testifying, such as the peculiar transaction called for. To surroim.d himself with a specified number of witnesses at that time com- petent, was all that any testator could do, in compliance with the statute requirements ; and what was then a proper execution in all respects taking place, a will was produced whose validity could never be impeached for informality. Hence the rule, which reason should now pronounce the univer- sal one, so far as the question remains a material one at all, that 4. Sparhawk v. Sparhawk, 10 187 111. 86 (though impeached as to Allen 155; Haven v. Hilliard, 23 veracity); Klinzer's Will, 130 N. Y. Pick. 10; Eustis v. Parker, 1 N. H. S. 1059 (one of immoral life). 273; Rucker v. Lambdin, 12 Sm. & 5. The word "disinterested" is M. 230; Hall v. Hall, 18 Ga. 40; used in some of our codes, still more Lord V, Lord, 58 N. H. 7; Sullivan precisely, so as to avoid changes un- V. Sullivan, 106 Mass. 474, 8 Am. der the general rules of evidence. Eep. 356; next section; Warren v. Jones v. Larrabee, 47 Me. 474. Baxter, 48 Me. 193; Boyd v. McCon- 6. Robinson v. Savage, 15 N. E. nell, 70 N. E. 649, 209 111. 396; 72 850, 124 111. 266. N. E. 1090, 213 111. 428; 58 N. E. 237. 435 § 351 LAW OF WFLLS. [pART III. tlie competency of witnesses, like that of the testator, is tested essentially by one's status at the time when the will was executed. If, therefore, a sufficient number of witnesses attest and subscribe properly who at that date are competent, the will remains valid, although death or supervening disability may render any or all of them incapable in fact of testifying by the time the will is offered for probate.'^ In other words, the inconvenience of this last situa- tion is purely casual and incidental, and without direct prejudice t<> the will itself, which might, indeed, be established on mere proof of handwriting, where the instrument appeared on its face genuine and formal. The converse of this proposition holds also true; namely, that the will is invalid unless witnesses of a sufficient number attest and subscribe properly, who at the date of execution are competent.^ Fo^r these attesting witnesses constitute the body- guard, so to speak, of the testator when he signs the will, and as- sure the present disposition as the free act of a capable mind. Hence, the execution would not be good if one of the attesting wit- nesses were at the time insane, or a little child incapable of under- standing why he wrote or made his mark as others told him, even though it might happen by the time of probate that such witness had gained his full or matured reason and imderstanding. But this converse principle has sometimes been relaxed out of favor to a will where one of the witnesses turns out at the probate court (as often unexpectedly happens) a legatee or an interested party ; and, somewhat inconsistently, though on the whole justly, such a wit- ness has been treated as competent to prove the will by releasing 7. Chamberlayne Evid. § 2654 cases supra; 1 Redf. Wills, 255, 256 Wyndhara v. Chetwynd, 1 Burr. 414 to a will is competent at tlie time of his attestation, his subsequent in- competency shall not prevent the 2 Str. 1253; Amory v. Fellowes, 5 probate and allowance of such will." Mass. 219; Sullivan v. Sullivan, 106 Mass. Pub. Stats, c. 127, § 2. Mass. 474, 8 Am. Rep. 356; Patten v. 8. Anstoy v. Dowsing, 2 Str. 1253, Tallman, 27 Me. 17; Sullivan v. Sul- 1255; Warren v. Baxter, 48 Me. 193; livan, 114 Mich. 189, 72 N. W. 135; Morton v. Ingram, 11 Ired. 368; Dolaveync's Will, 102 N. E. 1081, 259 Fisher v. Spence, 150 111. 253, 41 Am. 111. 589. St. Rep. 360, 37 N. E. 314; Chamber- Somo y\inerson dies before 7, 42 Am. Rep. 565. And as to a the testator is not a competent wit- married woman's will, see Camp v. ness, though that person actually Stark, 81* Penn. St. 235, 22 Am. Rep. 743. But cf. 91 Me. 416, 40 A. 325. 438 OHAP. III.] ATTESTATION AND SUBSCRIPTION. § 354 scribe, even though the latter receive a gift besides at the date o£ execution.^ An heir at law, who is disinherited, is likewise a com- petent witness in support of the will which disinherits him; so, too, when he takes a legacy under the will of less value than his interest would have been without the will.^ And, generally speak- ing, a witness may be produced to testify against his interest with- out legal disqualification.^ If it stand indifferent to the witnesses whether the will under which they are legatees and which they have subscribed be valid or not, they are pronounced credible.* The dominant purpose of such legislation is simply that the witnesses to whom the testator intrusts the establishment of his intent in probate shall be free from any bias or temptation to es- tablish, such as a pecuniary interest would engender.'' § 354. The Same Subject: Judges, Executors, Incorporators, etc. A judge of probate or other judicial officer is a competent sub- scribing witness to a will ; at all events, where the issues of probate may be tried before some one else.^ Nor is an executor, according to current opinion, incompetent, even though by the American rule his right to commissions and compensation gives him a sort of pecuniary interest under tie will ; ^ while the English Statute of 1. Nash V. Reed, 46 Me. 168; Al- and v. Jones, 1 Cal. 488. See also 79 len V. Allen, 2 Overt. 172. And see Me. 25, 8 A. 87; supra, § 23. Old V. Old, 4 Dev. 500. 7. Wyman v. Symmes, 10 Allen, 2. Smalley v. Smalley, 70 Me. 545, 153, 103 Minn. 286, 114 N. W. 838; 35 Am. Rep. 353; Sparhawk v. Spar- Reeve v. Crosby, 3 Redf. (N. Y.) 74; havrk, 10 Allen, 155; § 358. Stewart v. Harriman, 56 N. H. 25, 22 3. Clark v. Vorce, 19 Wend. 232; Am. Rep. 408; Murphy v. Fogg, 7 1 Greenl. Evid. § 410. Fla. 292, 68 Am. Dec. 441; Richard- 4. Bac. Abr. Wills, D. Or " disin- son v. Richardson, 35 Vt. 238 ; Jones terested." 70 Me. 548, 35 Am. Rep. v. Larrabee, 47 Me. 479; 161 Penn. 353. St. 393, 29 A. 3; 67 N. H. 254, 68 Am. 5. See 91 Me. 421, 40 A. 325. St. Rep. 661. 32 A. 158. Our local 6. McLean v. Barnard, 1 Root, 462; codes are frequently explicit on this 2 Root 232. Statutes are sometimes subject. See 1 Jarm. Wills, 73, Bige- specific on this point. And see as to low's note. See Rehard's Estate, 143 the alcade under Mexican law. Pan- N. W. 1106 (attorney for executor competent). 439 § 354 LAW OF WILLS. [part III. Victoria expressly declares (in a country where such trusts have always been esteemed voluntary and gratuitous) that an executor shall be an admissible witness.* IsFevertheless, we regard an execu- tor who intends to accept the trust as a most undesirable person for subscribing witness, and one whose bias in a close contest might break down the will ; and some States appear to regard an executor as competent only when, having declined or renounced the tiiist, he is clearly disinterested.^ An original corporator and member of a charitable corporation- is a competent witness to a will which gives property to the cor- poration.^ And so may be an inhabitant of some town or munici- pal corporation to which property is devised or bequeathed for charitable or educational purposes.^ For here the individual's beneficial interest is deemed too remote to disqualify him from testifying in favor of the will.^ A bequest to a person strictly in tnist for another is not to be pronounced a direct beneficial interest such as to disqualify him.^ 8. Stat 1. Vict. c. 26, § 17. An executor who is entitled to a legacy in that character may be a compe- tent witness if lie releases his legacy. 2 Curt. 72; 1 Wms. Exrs. 345. And see Bettison v. Bromley, 12 East. 250. 9. See Snyder v. Bull, 17 Penn. St. 54; Tucker v. Tucker, 5 Ired. 161; Schoul. Exrs. § 1076 (Vol.11.) ; Jones V. Tjarrabee, 47 Me. 474; Burritt v. Sillir:a,n, 13 N. Y. 93, 64 Am. Dec. 532. In Scotland, where the executor was one of the attesting witnesses, it was held that the testament was null as to his appointment, though it would stand in other respects. Tait Evid. 84. An executor may release his pe- cuniary interest under the will and etand the better qualified as a witness. 3 Redf. (N. Y.) 74. 1 Ouinn v. Shields, 62 Iowa 120, 17 N. \V. 437, 49 Am. Rep. 141. 2. Cornwell v. Isham, 1 Day 35; Warren v. Baxter, 48 Me. 193; Lor- ing V. Park, 7 Gray, 42; 1 N. H. 273; Jones V. Habersham, 63 Ga. 146; 79 Me. 25, 8 A. 87. 3. But if the will were in favor of some private business corporation, semble that a stockholder therein would bbe disqualified by reason of interes^t. Though not where the aim of the bequest is charitable. Marston Ex parte, 79 Me. 25, 8 A. 87. See Hitchcock V. Shaw, 160 Mass. 140, 65 N. E. 671, 72 Me. 156; Boyd v. McCk)nnell, 70 N. E. 649, 209 111. 396 (trustee of a college) ; Jeanes's Es- tate, 77 A. 824, 228 Penn. 537 (officer of a company) ; Stinson's Estate, 81 A. 207, 232 Penn. 218. 4. Creswell v. Creswell, L. R. 6 Eq. 69. And see Loring v. Park, 7 Gray 42. But as to making the trustee under the will a competent witness. 440 CHAP, in.] ATTESTATION AND SUBSCRIPTION. § 356' § 355. The Same Subject: whether Husband and Wife are Com- petent for One Another. The wife, according to the better opinion, should not he witness to her husband's will, nor the husband to his wife's will ; a rule which conforms to the old law of coverture.^ And where a devise or bequest is given to either the husband or wife of an attesting witness, such witness is usually to be deemed a disqualified party.® In view, however, of our later marital policy, more favorable to the independence of spouses than formerly, it is well for the statute of wills to be more precise on this point, and the Statute of Vic- toria furnishes an example accordingly.^ If the executor named be a competent subscribing witness, so may be the wife of such executor.^ § 356. Creditor or Remote Beneficiary, whether a Competent Subscribing Witness. Whether a creditor must be treated as an incompetent subscrib- ing witness to a will by reason of his direct interest under certain circumstances, is not clearly determined. But the policy of Eng- lish and American legislation prevents their disqualification even where the will makes an express charge of real or personal prop- note what is said as to executors and Iowa, 443; 70 Iowa 343, 30 N. W. their pecuniary interest, supra; also 608. This rule is liable, of course,. § 357. to be affected by the latest " mar- 5. Pease v. Allis, 110 Mass. 157, 14 ried women's legislation " in any Am. Rep. 591; Dickinson v. Dickin- State. See Giddings v. Turgeon, 58 son, 61 Penn. St. 401; Smith v. Vt. 106; Sloan's Estate, 56 N. E. 953, Jones, 68 Vt. 132, 34 A. 424 (where 184 111. 579. there had been an ante-nuptial exclu- 7. See Act 1 Vict. c. 26, § 15, sion) ; Fisher v. Spence, 150 111. 253, which annuls all gifts to the husband 41 Am. St. Rep. 360, 37 N. E. 314; or wife of an attesting witness. As Holt's Will, 56 Minn. 33, 45 Am. St. to the wife of a legatee or devisee Rep. 434, 57 N. VV. 219; 60 N. E. 706, see Hatfield's Will, 122 P. 63 (Col. 157 Ind. 49. App.). And as to the wife of the 6. Sullivan v. Sullivan, 106 Mass. executor named, see Rowlett v. 474; Winslow v. Kimball, 25 Me. Moore, 96 N. E. 835, 252 111. 436 493; 67 N. H. 254; 1 Johns. Cas. 163. (statute disqualifies). Contra, Hawkins v. Hawkins, 54 8. § 354. 441 § 357 LAW OF WILLS. [PAET III. erty to secure the debt.® Persons to be remotely benefited under a will are not readily to be pronounced incompetent witnesses, so as to imperil a will ; ^ and where there is a sufficiency of witnesses, after leaving out one of doubtful competency, the will, of course, is to be upheld.^ § 357. Legacies or Devises to Attesting Witnesses annulled by Statute. We have observed that the hardship of breaking dawn a will, through some inadvertent selection of a witness who himself might have been quite unconscious of his interest, led common-law courts to avoid the worst mischief by permitting such a witness to release his interest at the probate, and so render himself compe- tent.^ But this permission, which was not clearly conceded by all tribunals, must have been liable to great abuse ; it was accorded against legal consistency; and the very option to release invested such a witness with such undue power for destroying or saving the will at his own choice, that sinister, secret and corrupt bargains for purchasing his goad will must have followed. The English Parliament soon adopted another expedient for avoiding the sacri- fice of an entire will on the one hand, and the arbitrary choice of an interested witness on tlie other; namely, to annul absolutely all 9. The English statute 25 Geo. II. a fellms'-membor to that order as c. 6, § 2, expressly provides that cred- renders them incompetent. Will v. itors whose debts are charged by a Sisters, 67 Minn. 335. A taxpayer will or codicil shall, nevertheless, be of a town which receives a legacy in good subscribing witnesses. And this trust for schools, a town library or provision is confirmed and extended other like charitable purposes is com- by Act 1 Vict. c. 26, § 16. potent as a subscribing witness. Similar legislation may be found in Hitchcock v. Shaw, 160 Mass. 140; Massachu-setts, New York, New Jcr- Piper v. Moulton, 72 Me. 156; 79 Me. sey, and many other American States. 50. So tiie prospective heirs at law 1 Jarm. Wills, 71, 73, American note; of a legatee are competent, for they Stimson's Am. Stat. Law, § 2648. take nothing under the will. Jones 1. E. (]. members of a religious v. Tebbetts, 57 Me. 572. order, who .surrender to it all their 2. See Faux Re, W. N. 249 (1888). ^ property, have no such certain and 3. Supra, § 351. ' vested interest in what is devised by 442 CHAP, in.] ATTESTATION AND SUBSCRIPTION. § 357 beneficial devises and legacies to attesting witnesses, and render such persons competent to all other intents in spite of a testator's heedlessness or their own. This doctrine, which was first embodied in Stat. 25 Geo. II., c. 6, has been extended and firmlj established by the Act 1 Vict. c. 26.* In most parts of the United States similar legislation may be found, and witnesses to a will are rendered incapable of taking any beneficial interest under the will, unless there be the statutory number of competent witnesses without them, while they stand competent to prove the will in all other respects.^ Harsh as such a policy may be thought, it appears to work well ; more care is taken than formerly in the attestation of wills, and the rules of evidence are greatly simplified. But in a few American States a legatee is rendered competent, by express legislation, if he release or refuse to accept his legacy.® 4. See 1 Jarm. Wills, 71, 72; Appx. post. Section 15 of the act of Vic- toria annuls every beneficial devise, legacy, interest, gift, etc., to any at- testing witness, or the wife or hus- band of such witness. The annul- ment applies of course only to the instrument actually attested, and not so as to invalidate one's interest under another will or codicil. Tem- pest V. Tempest, 2 Kay & J. 635 ; Denne v. Wood, 4 L. J. 57. Under this English statute, a trustee who is a solicitor, loses a right given him under the will to charge for pro- fessional services, if he attests. Bur- gess V. Vinicome, 31 Ch. D. 665; 34 Ch. D. 77; 40 Ch. D. 1. 5. See 1 Jarm. Wills, 71, American note. New Hampshire, Massachu- setts, Connecticut, New York, Vir- ginia, Kentucky, Georgia, Mississippi, and most of the northwestern States have adopted provisions of this character. In New York and various other States, the share which such a witness would have had in the estate had the will not been made to him is expressly saved to him. (See next section.) A legatee dying before the testator is also pronounced a legal witness in some of our codes. And see 6 Mackey 98, as to the District of Columbia; and in general, Stimson's Am. Stat. Law, § 2650. Where two witnesses would suffice, and three persons actually subscribe, one of whom proves to be a devisee named in the will, it is fair to treat such a devisee's signature as superfluous. See 103 N. C. 40, 14 Am. St. Rep. 783, 9 S. E. 644; 43 W. Va. 300, 27 S. E. 323 ; Harp v. Parr, 168 111. 460, 48 N. E. 113; 56 N. Y. S. 853; Wil- liams v. Way, 68 S. E. 1023, 135 Ga. 103. 6. See statutes of New Jersey, Missouri, etc., referred to in 1 Jarm. Wills, 71, American note: Stimson's Am. St. Law, § 3650; Nixon v. Arm- 443 § 358 LAW OF WILLS. [part IIL § 358. Competency of Interested Witnesses; Miscellaneous Leg- islation; Devise to Heir, etc. In Maryland, under a late statute, an interested witness may be considered competent to subscribe or sustain a will.^ And there are other recent acts which expressly provide that a will shall not be void on account of the incompetency of the attesting witnesses.^ In nearly all of our United States a devise or bequest to a per- son who would inherit under the laws of distribution does not in- validate the will or render such person incompetent as a witness; but the devise or bequest is good only so far as it does not exceed what he would have taken by inheritance in the event of intes- tacy.^ strong, 38 Tex. 296; Grimm v. Titt- mann, 113 Mo. 55, 20 S. W. 664. But republication of a will by a codi- cil referring to it may validate the legacy to a witness who attests the will but not the codicil. (1899) 1 Ch. 764. See § 441. 7. Estep V. Morris, 38 Md. 417; Kumpe V. Coons, 63 Ala. 448. 8. See the peculiar and somewhat vague expression of 1 Vict. c. 26, § 14. Recent statutes which extend the competency of interested witnesses and original parties to testify in civil and criminal proceedings, often make express exception of the attesting witnesses to a will or codicil; for here peculiar considerations are found to apply. Mass. Gen. Stats, c. 131, §§ 13, 15; McKeen v. Frost, 46 Me. 248; Miltenberger v. Miltenberger, 7S Mo. 27. 9. This seems to be the purport of most of such codes, thougli the lan- guage somewhat varies. Stimson's Am. Stat. Law, § 2651. And see supra, § 23; Maxwell v. Hill, 89 Tenn. 584, 15 S. W. 253; Smalley v. Smalley, 70 Me. 545, 35 Am. Rep. 353; 10 Allen 155. 444 CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 360 CHAPTER IV. NUNCUPATIVE OR ORAL WILLS. § 359. Wills and Codicils usually require a Formal Execution; Exceptions stated; Unattested Wills, Oral Wills, etc. Wills, under the policy of our modem legislation, English and American, are generally to be executed with all the formalities of vvritten expression, signature, and attestation, which our prera, §§ :W}-:mf^. 9. See language of Stat. 29 Car. II. 8. Hupra, § 305. And >ec others un- § 19, wliich sets forth its restrictions 458 CHAP. IV.] IS'UNCUPATIVE OR ORAL WILLS. § 370 composed of soldiers and mariners, or of the testators of petty es- tates, as the case may be, is now, by the policy of modem England and most of the United States, the only class capable of disposing by nuncupation at all; and this, again, we must keep steadily in view, while investigating the subject. § 370. Whether the Testament must be made in Extremis. First, then, to inquire whether the will must be made in extre- mis. That this is not essential in the case of the privileged sol- dier we have already observed,^ and the same holds probably true of the privileged mariner ; for the one being in '' actual military service " and the other " at sea," a general exposure to sudden death supplies sufficient peril upon which legislation founded its -exception. As to the privileged disposer of a petty estate,^ a nice question may arise ; namely, whether by the law of England, prior to and independently of the Statute of Frauds, all such nuncupa- tive wills must be made an extremis in order to be valid.^ But, aside from such exceptions, the modem rule as fairly settled is this : that a nuncupative will is not good unless it be made when the testator is in extremis. " Last sickness " is the expression used in the Statute of Frauds ; and the same words are transplanted in American codes; and by these words should be understood one's last extremity.* merely with reference to wills be- Jarm. Wills, 755, Randolph's Ameri- queathing more than 30 lbs.; leaving can note. only the general restraints of the 1. Supra, § 367. older common law to operate as to 2. Such as the testator under 29 wills of less value. Supra, § 363. Car. II. § 19, who disposed of an es- Some American codes are similarly tate not exceeding 30 pounds, and was expressed, requiring nuncupative wills excepted from the express restraints of property beyond a stated amount imposed by that act in consequence. to be .prepared with particular for- 3. Of. the different opinions ex- malities; while others, on the con- pressed in Prince v. Hazelton, 20 Irary, simply prohibit all nuncupa- Johns. 503, where the history of nun- tive wills of property beyond a fixed cupative wills is traced down from value. See supra, § 365 (usually of the earliest times. personal, but not real property) ; 3 4. Prince v. Hazleton, 20 Johns. 459 § S7l I.AW OF WILLS. [PAUT III» § 371. The Same Subject. But there appears a discrepancy in the decided cases concerning^ the pressure of that extremity which shall justify an unprivileged nuncupation. The long train of restrictions imposed by the act of 29 Car. II. evidently discouraged testators from that form of be- quest; for Blackstone found it hardly ever heard of by his day, " but in the only instance where favor ought to be shown to it, when the testator is surprised by sudden or violent sickness " ; ^ nor do the English reports furnish a single valuable comment upon a point which, as legislation now stands in that country, can never arise again.^ In this country, however, the question of extremity has been discussed in several cases. As Chancellor Kent held, and the court decided in Prince v. Hazelton, the extremity or last sick- ness must be such that the party then speaking is overtaken by so sudden and violent a sickness, or at least utters his wishes so shortly before death, that there was afforded thereafter no con- venient time or opportunity to have reduced his words to writing and executed a formal will.'' It would follow that if the testator 503; Haus v. Palmer, 21 Penn. St. mony is preserved. Freeman v. Free- 296; Sadler v. Sadler, 60 Miss. 251; man, 1 Oas. temp. Lee, 343. See cir- O'Neill V. O'Neill, 33 Md. 569. But cumstances in Jackson v. Bennett, 3 cf. Johnson v. Glasscock, 2 Ala. 239. Phillim. 90, which case, however, de- See § 361. cides nothing in point. 5. 2 Bl. Com. 501. In stating the 7. Prince v. Hazelton, 20 Johns, essentials of a nuncupative will, this 502. Tliis view is adopted in Penn- writer states further: "To prevent sj'lvania. Yarnall's Will. 4 Rawle, impositions from strangers, it must 46; Haus v. Palmer, 21 Penn. St. 296. be in his last sickness; for if he re- And in Maryland. O'Neill v. O'Neill, covers, he may alter his dispositions, 33 Md. 569. In O'Neill v. O'Neill, the and has time to make a written will." oral disposition alleged was made on lb. the day immediately before the tes- 6. One instance is reported where a tator's death. But the testator had nuncupative will was established in been an invalid for fifteen years, and 17.j3 under the Statute of Frauds. A had been for eiglit months previous to wagoner was injured so badly that he liis death confined to his house, gradu- died the next day. He made his oral ally yielding to consumption; his phy- will while lying disabled and in ex- sician had admonished him that re- tremis. A simple decision by the covery was hopeless; he lived in a court upon the facts given in testi- populous city and with ample oppor- 460 CHAP, IV.] NUNCUPATIVE OR ORAL WILLvS. § 371 recover, even when he has made a nuncupative will with due for- mality, it becomes of no force ; * and even though a lingering sick- ness proved his last, yet if his mental and physical condition af- forded an ample opportunity and inducement to prepare and exe- cute a written will, after his nuncupation occurred, the spoken words could not operate as those of a " last sickness." This justifies the policy of the Statute of Frauds, which, by the better opinion, meant to deal strictly with all non-privileged cases, and only toler- ated these nuncupative wills under the stress of a supposed neces- sity. Though the lingering disease should prove finally fatal, it must come to the last stage of extremity, if not to the last day or hour, in order to be a '' last sickness " within the statute ; and even here nuncupation may be prejudiced by the neglect to prepare in good season a written will in view of certain death. A more liberal rule is announced by the supreme court of Ala- bama: namely, that if the words are spoken in the sickness of which one dies, and under a sense of approaching death, it may suffice, even though the party lived long enough after the nuncupa- tion to afford a fair opportunity for reducing his desires to the more permanent form of a written and executed will.® But such latitude is dangerous ; and while the circumstances in every such case deserve a fair consideration, the preferable rule is the for- mer.-^ And accordingly where the decedent lived several days after making a verbal will, conscious and possessing the capacity tunity to prepare a written will; and sumed a serious character about four- for a day at least after the nuncupa- teen days before he died. About ten tion he lived, retaining tlie full pos- days before he died the will was made, session of his senses to the hour of The testator, it was conceded, knew his death. The nuncupative will was how to write, and there was am])le accordingly disallowed. See, also, opportunity to execute a written will where a paper outlining instructions after this nuncupation. The witnesses was prepared for the dying man's sig- reduced his wishes to writing soon nature and he refused witliout good after he died. reason to aflfbc his name. Munhall's 1. See Sadler v. Sadler, 60 Miss. Estate, 83 A. 66, 234 Penn. 169. 251, which intimates that the concrete 8. Cases, supra. facts of each case should be weighed, 9. Johnson v. Glasscock, 2 Ala. 239. but announces no positive opinion. In this case the testator's disease as- 461 § 373 LAW OF WILLS. [PAET III. and having fair opportunity to execute a written one, the nuncupa- tion was treated as of no effect; for wills of that description (ex- cept as to the soldiers and mariners, etc., already mentioned) could be justified only by sheer necessity.^ § 372. The Place of Making the Will. Second, as to the place of making the nuncupative will. The common law makes no restriction in this respect for one kind of testament more than another. But under the Statute of Frauds nuncupative wills of the non-privileged sort can only be made in one's dwelling, or place of residence, unless the testator is sur- prised or taken sick while absent and dies before his return.^ A local code at the present day must determine whether any such re- straints still operate. From this limitation the wills of soldiers and mariners were of course exempt, not without some such re- straint of their own from the nature of the case ; * nor were wills of petty amount made subject to the rule originally.^ § 373. The Manner of Declaring One's Disposition. Third, as to the manner of declaring one's disposition, or what we may term the nuncupation. The Statute of Frauds expressly enacts, that the testator shall, at the time of pronouncing his will, bid the persons present or some of them bear witness that such was 2. Carroll v. Bonham, 42 N. J. Eq. Penn. 549; 47 Wash. 253, 91 P. 967; 625, 9 A. 371. Here the decedent, a Godfrey v. Smith, 73 Neb. 756, 103 woman, appears to have had an im- N. W. 450; Baird v. Baird, 79 P. 1(53, pression that her verbal will, when- 70 Kan. 564. ever made, would be good. See, also, 3. Act 29 Car. II. § 19; supra, § Scaife v. Emmons, 84 Ga. 619, 10 S. 363. See Marks v. Bryant, 4 Hen. & E. 1097, 20 Am. St. Rep. 383. NegU ct M. 91 ; Nowlin v. Scott, 10 Gratt. 64. to make a written will, upon the phy- In the Virginia statute " habitation " sician's warning, until it became too is used (in the sense, however, of late, does not exclude the right to "dwelling-house"), and there are make one by nuncupation. 187 Penn. other verbal variations' from the ex- St. 82, 67 Am. St. Rep. 569, 40 A. pre,';sion of the Statute of Frauds. 980; 96 Ga. 467, 23 S. E. 387. And 4. f^nprn. § 367. see Rutt's Estate, 50 A. 171, 200 5. Act 29 Car. II. § 19, § 365. 4G2 CHAP. IV.] NUNCUPATIVE OE ORAL WILLS. § 373 his will, or to that effect.'' This is technically called the rogatio testium; and the statute requirement, whose policy plainly is to establish testamentary intent so clearly that bystanders may not frame a will out of words loosely spoken by the dying person, has been strictly constnied. Thus, where a mother in her last sick- ness called to her bedside several of her children and the daughter of the person with whom she lodged, and declared how she wished her effects disposed of and her family brought up after her death, the declaration was held insufficient, for want of the solemn rogatio testium; she ought to have bade those present bear witness that this was her will.^ A dying person may give many farewell mes- sages, may express many farewell wishes, often changing his mind, adding or substituting as new ideas occur; but to constitute the oral will, he must have concluded its substance in his own mind, and, gathering up his faculties, he must set forth clearly before the witnesses what shall be this disposition once and for all, and so give point to the transaction as an ideal execution of his will on the spot, including a request for their ideal attestation thereof. Independently of such legislation, and prior to the statute of Charles IL, very nearly the same rogatio testium appears to have been indispensable at our law ; for though no precise form of words was prescribed, the alleged nuncupation must have disclosed a present consistent intention that the very words uttered should constitute one's will, and that the witnesses should understand the dying person in that sense and mark his words accordingly. This nuncupation on his part manifested a testamentary intent, whether one used the word " will '" or " testament," or not.^ In this 6. lb. any one present to note her language. 7. Bennett v. Jackson, 2 Phillim. Broach v. Sing, 57 M'iss. 115. And 190. And see Cas. temp. Lee, 588; see Bundrick v. Haygood, 106 N. C. Hebden's Will, 20 N. J. Eq. 473; 468, 11 S. E. 423; Godfrey v. Smith, Dockrum v. Robinson, 26 N. H. 372. 73 Neb. 756, 103 N. W. 450; Baird v. Nor can tbe statement of a sick per- Baird, 79 P. 163, 70 Kan. 564; Scales son before those in the room, that she v. Thornton. 44 S. E. 857, 118 Ga. 93; ■wants A to have her property, be pro- 41 S. E. 621, 115 Ga. 286. bated as her nuncupative will, if she 8. Swinburne says that the testator iieither mentions a will nor calls on "doth declare his will" (his whole 463 § 374 LAW OF WILLS. [PAKT III. aspect, then, our privileged classes of testators appear to have no substantial advantage over others ; except it be in dispensing with the more formal declaration of the statute where other circum- stances sufficiently establish that nuncupation and a last will were in fact intended ; ^ or perhaps where the will is founded upon let- ters, an unperfected instniment in writing, or other proof not purely oral.^ But military testaments were always treated with singular indulgence; and the same indulgence may possibly ex- tend to mariners at sea.^ § 374. The Same Subject. As to wills, therefore, which derive no privilege beyond that accorded to a nuncupation for establishing them, it should appear that the deceased, at the time of speaking the alleged words, had the present testamentary purpose and meant that those words should constitute the final expression of that purpose.^ He should mind, etc. ) " before a suflBcient num- ber of witnesses." Swinb. pt. 4, § 29, pt. 1, § 12. Perkins says that the tes- tator prays those about him to bear witness of liis last will and declares by word what is his will. Perk. § 476. See those early authors cited, supra, § 361. 9. It appears, however, that at com- mon law a nuncupative will may be made not only by the proper motion of the testator, but also at the inter- rogation of another. Swinb. pt. 1, § 12, ])!. (J; 1 Urns. Exrs. 122. 1. Of such wills adduced in probate as nuncupative, etc., we shall speak presently in this chapter. 2 A military testament may be good, though made up of declarations and requests not strictly in the form of a single nuncupation with a rogatio testium. See Gould v. Safford, 39 Vt. 498. The civil law was very indul- gent in rcsjxict to wilLs of soldiers, and if a soldier wrote anything in bloody letters on his shield, or in the dust of the field with his sword, it was held a good military testament. 1 Bl. Com. 417. No particular for- malities were necessary to the vali- dity of such a disposition. Accord- ing to Swinburne, only those solemni- ties were necessary which are juris gentium; no precise form of words was required, and it was not material whether the testator spoke properly or improperly if his mea-iing ap- peared ; and soldiers are clearly ac- quitted from observing the solemni- ties of the civil law in the making of their testaments. Swinb. pt. 1, § 14, pt. 4, § 26. 3. Verbal instructions and direc tions for drawing up a written will do not constitute a nuncupative will al- though spoken in presence of the proper number of witnesses. Do^kum v. llobinson, 26 N. H. 372. And see 3 464 CHAP. IV.] NUIVCUPATIVE OR ORAL WILLS. § 375 have a sufficient number of witnesses present together and call upon them at the same time to bear witneS'S to his will as he pro- nounces it, or use language equivalent ; * nor is it enough that he declares his will to these witnesses separately and apart from one another.^ Nor should the will be constituted by words drawn out from the dying man by some interested party present ; but the tes- tament should appear to come freely and spontaneously from the •dying man's own breast.® § 375. The requisite Number of Witnesses to the Will. Fourth, as to the number of witnesses who are required to prove the will. The Statute of Frauds declared that no nuncupative will should be good that was not " proved by the oath of three wit- nesses " ; and so strictly has this provision been construed, that where one of the three witnesses present at a certain nuncupation died before he could make proof, the will was held to be invalid.^ So should these three witnesses be in substantial accord as to what the will of the deceased really was.^ Among American States which still permit nuncupative wills to be made by non-privileged persons, some require three witnesses ; but commonly two witnesses Leigh, 140; Reese v. Hawthorn, 10 ter, 5 Jones L. 95. The rogatio tes- Gratt. 548; Hebden's Will, 20 N. J. tium is indispensable. Portman v. Eq. 473. Hunter, 6 B. Mon. 538, construes the 4. Hebden's Will, supra; 1 Add. Kentucky statute less strictly, but, 389; Brown v. Brown, 2 Murph. 350; as precedents go, contrary to rule. Ridley v. Coleman, 1 Sneed, 616; Ar- And see Grossman's Estate, 175 HI. nett V. Arnett, 27 III. 247. The dying 425, 67 Am. St. Rep. 219, 51 N. E. person need not call these witnesses 750; Wiley's Estate, 187 Penn. St. by name. 109 N. C. 114. See further, 82, 67 Am. St. Rep. 569, 40 A. 980. Dockum V. Robinson, supra; 75 Miss. 6. Cf. Brown v. Brown, 2 Murph. 294, 22 So. 803; Knox v. Richards, 350; Parsons v. Parsons, 2 Greenl. 35 S. E. 295, 110 Ga. 5; 50 A. 171, 298. The peculiarities of the Loui- 200 Penn. 549. siana code with reference to nuncupa- 5. Prince v. Hazleton, 20 Johns, tive wills have already been noted. 505; Weeden v. Bartlett, 6 Munf. 123; Supra, § 365. Tally V. Butterworth. 10 Yerg 501; 7. 1 Eq. Cas. Abr. 404; 1 Wms. Offut V. OfTut, 3 B. Mon. 162, 38 Am. E.xrs. 121. Dec. 183; Yarnall's Will, 4 Rawle, 8. Mitchell v. Vickers, 20 Tex. 377; 46, 26 Am. Dec. 115; Wester v. Wes- Bolles v. Harris, 34 Ohio St. 38. 30 465 376 LAW OF WILLS. [part III. may suffice.* A statement before less than the requisite number of witnesses does not constitute a valid nuncupation.^ Nuncupative wills of the privileged kind — those of soldiers, and mariners, and the wills of petty amount — the Statute of Frauds leaves without any definite number of witnesses to establish them. ■Such wills, it would appear, may, aside from legislation to the contrary, be proved in a court controlled by common-law rules, upon the testimony of a single unimpeached, competent witness.^ But no one is a suitable witness for a nuncupative will unless com- petent as in other testamentary causes.^ § 376. Subsequent Reduction of the Nuncupative Will to Writ- ing. Fifth, as to the subsequent reduction of the will to writing. The Statute of Frauds required the nuncupative words to be put into writing within six days after they were spoken; as otherwise the alleged will could not be proved after six months.* Similar legis- 9. See 1 Jarm. 98, Bigelow's note; 3 Jarm. 755, Randolph's Am. note; Stimson's Am. Stat. Law, § 2703. Maine, New Hampshire, New Jersey, Maryland, Texas, and Wisconsin, are among the States whose codes re- quire three witnesses. In most of our northwestern States and those on the Pacific slope, besides Pennsylvania, Kentucky, Tennessee an,d ilississippi, the code provides for two witnesses instead. In Ohio the rule of com- petency and disinterestedness is more strongly insisted upon, under the stat- ute, than in the case of written wills. Vrooman v. Powers, 41 Ohio St. 191; supra, §§ 353-358. As to the Loui- 8ana code, see Richard v. Richard, 57 So. 286, 129 La. 007 (dictated or writ- ten by a notary in presence of wit- nesses who understood the language, etc.). 1. Bundrick v. Haygood, 106 N. C. 468, 11 S. E. 433; 41 Ohio St. 191; 84 Ga. 619, 20 Am. St. Rep. 383, 10 S. E. 1097. 2. Gk)uld V. Safford, 39 Vt. 498, where this rule was applied in favor of the nuncupative will of a soldier in actual service. Under the rules of the civil law a controverted faet had to be established by the testimony of at least two witnesses; but under the rules of the common law, the testi- mony of a single witness, where there is no ground for suspecting either his ability or his integrity, is a sufficient legal ground for belief, even in crimi- nal cases. lb. 505. 3. Supra, § 350; Haus v. Palmer, 21 Penn. St. 296. See Young's Will, 123 N. C. 358, 31 S. E. 626. 4. Stat. 29 Car. II. § 19. By § 21, as we have seen, no nuncupative will 466 CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 377 lation (with slight variation as to the number of days) may be found in the United States ; and where the words reduced to writ- ing are not substantially the same as spoken, the will may be pro- nounced invalid.^ This safeguard against fraud and failure of recollection applies in strictness, however, only to the non-privi- leged wills; and for those of the privileged kind, we may assume that the usual common-law rules of evidence are applicable to prove or disprove them.^ § 377. Strictness of Proof as to all Material Facts. Sixth, as to strictness in establishing all the facts material to the probate. Nuncupative wills, being as a rule no favorites of the court, demand strictness of proof on all essential points, whether for the purpose of showing that the statute restraints have been fully complied with, or to establish facts fundamentally in- dispensable to 'the probate, independently of statute restraints. For, with or without a Statute of Frauds, evidence more strict and stringent than in the case of a written will should be furnished in every particular. " This," observes Williams, " is requisite in consideration of the facilities with which frauds in setting up nun- cupative wills are obviously attended; facilities which absolutely require to be counteracted by courts insisting on the strictest proof as to the facts of such alleged wills. Hence the testamentary ca- pacity of the deceased, and the animus testandi at the time of the alleged nuncupation must appear, in the case of a nuncupative will, by the clearest and most indisputable testimony."'^ The general impolicy of nuncupative wills is not, however, as- could be admitted to probate without tor should be put to inconvenience or at least fourteen days' delay from the surprised." 2 Bl. Com. 501. testator's death and a citation of the 5. Bolles v. Harris, 34 Ohio St. 38. wi4ow and next of kin. " It [the nun- And see Mitchell v. Vickers, 20 Tex. cupative will] must not be proved at 377; Haygood's Will, 101 N. C. 574, too long a distance from the testa- 8 S. E. 222. tor's death, lest the words should es- 6. Gould v. Safford, 39 Vt. 505. cape the memory of the witnesses; 7. Wms. Exrs. 121, 122; 1 Add. 389, nor yet too hastily, and without 390. This consists with the cases notice, le&t the family of the testa- noted in the preceding sections. See 467 § 378 LAW OF WILLS. [PAKT in. serted as strenuausly in some States as in others; while some of the privileged classes, soldiers in actual service more particularly, appear to be regarded with positive favor and indulgence.* § 378. Informal Writings, whether upheld as Nuncupative Wills. Seventh, as to whether informal writings may ever be upheld is nuncupative wills. We have seen that until such enactments as the Statute of Victoria came in force, holograph letters, unattested writings, and even mere, memoranda, were allowed a very loose operation as wills of personal property. Thus was it, in fact, long after the Statute of Frauds restrained nuncupative wills.* In various American States, where these unattested writings have been laid under the ban, courts show sometimes a disposition to sustain unperfected wills in writing as nuncupative wills; as where, for instance, the completion of the will was prevented by act of God.^ But this is a straining of the statute ; for a nuncupa- tive will, as its literal meaning imports, is simply a verbal declara- also Smith v. Thurman, 2 Heisk. 110; Bolles V. Harris, 34 Ohio St. 38; Mitchell V. Vickers, 20 Tex. 377; 84 Ga. 619, 20 Am. St. Rep. 383, 10 S. E. 1097; 41 Ohio St. 191; 106 N. C. 468, 11 S. E. 423. For the Louisiana practice, see supra, § 365. Verbal instructions for a written will which there was no time to make cannot be construed into a nuncupative will. 75 Miss. 294, § 374. See also Bingham V. Isham, 81 N. E. 690, 227 111. 634; Godfrey v. Smith, 73 Neb. 756, 103 N. W. 450. 8. A soldier's oral will is entitled to probate, notwitlistanding the con- , struction of a doubtful phrase nuiy be needful. Scott's Goods, (1903) P. 243. 9. See supra, § 253. In England until the Statute of Victoria, which abolisbed nuncupative wills of non- privileged persons, on the one hand. and written wills of personal prop- erty informally attested, on the other, an actual testamentary disposition, which had been committed to writing by authority of the testator, with in- tention to execute, but was left un- signed or unattested by accident or the act of God, might be admitted to probate: but the probate was not that of a nuncupative will, nor did any of the restraints upon nuncupative wills obstruct them. Huntingdon v. Huntingdon, 2 Phillim. 213; Strish v. Pelham, 2 Vern. 647. So has it been in American States upon a like theory, prior to the passage of local statutes which make a formal execu- tion and attestation necessary. Pub- lic Administrator v. Watts. 1 Paige, 373; 4 Wend. 168. 1. OfTut V. Offut, 3 B. Mon. 162; Boofter v. Rogers, 9 Gill, 44 ; § 374. 4GS CHAP. IV.] NUNCTJPATIVE OR ORAL WILI^. § 379 tion made in presence of witnesses called upon to notice it, and not reduced to writing by the testator's direction ; the verbal decla- ration being intended as his will, and not as something different or preliminary to it; and thus do the more consistent authorities rule it.^ But privileged wills, and especially military testaments, may stand on a more favored footing in this respect; not because the will which is written down by the testator instead of being uttered is strictly of the nuncupative kind, but because the civil law dis- pensed freely with formalities in such testaments, and the common law is supposed to intend the same. Defective instruments in writing, letters in his own hand, declarations which some comrade is to write out and transmit by mail, and the like, have accordingly been upheld as suitable soldier's testaments, within the exception of our statutes relating to nuncupative wills, though no rogatio testium took place at all.' § 379. Repeal or Alteration of a Written Will by a Nuncupative One. Eighth, as to the repeal or alteration of a written will by a nun- 2. Hebden's Will, 20 N. J. Eq. 473 ; ford v. Krake. 1 Abb. Pr. N. S. 112. Dockrum v. Robinson, 26 N. H. 372; We should observe the specific Ian- Porter's Appeal, 10 Penn. St. 254. guage of such enactments: not that Nor can a will executed as a written soldiers in actual service and marin- will, and defective in respect of exe- ers at sea may simply make a nun- cution, be set up as a nuncupative cupative will, but that they may dis- testament. Rees v. Hawthorne, 10 pose, etc., in the same manner as be- Cratt. 548. A signed writing is not a fore the act; which expression may nuncupative will. Stamper v. Hooks, well embrace all the means of dispos- 22 G«o. 603. 68 Am. Dec. 511. Nor ing of personal property which the can a document drawn as a regular common law sanctioned. As to wills will, but not duly executed because of petty amount, however, the local death suddenly intervened, be pro- legislation, properly construed, may bated as a nuncupative will Male's usually be found to permit of them Will, 49 N. J. Eq. 266. only on the strict footing of " nun- 3. Gould v. Safford, 39 Vt. 498; cupative wills," and not by way of Van Deuzer v. Gordon, ib. Ill; Leath- letter or writing informally executed, era v, Greenacre, 53 Me. 561; Bots- 4G9 § 379 LAW OF WILLS. [part in. cupative one. This, we have seen, is expressly forbidden by the Statute of Frauds.* And under American codes, the revocation, total or partial, of a duly executed written will by an oral or nun- cupative one is likewise prohibited.^ 4. Stat. 29 Car. II. § 22. But it has been held that thig section does not prevent a nuncupative provision (made according to the statute re- strictions) of a lapsed legacy. T. Raym. 3.34; Com. Dig. Devise C; 1 Wms. Exrs. 122. See § 363, supra. 5. McCune v. House, 8 Ohio, 144, 31 Am. Doc. 43S; Brook v. Chappell, 34 Wis. 405. See Part IV. post, as to Revocation, etc. 470 PART IV. REVOCATION, ALTERATION AND REPUBLICATION OF WILLS. CHAPTER I. REVOCATION OF WILLS. § 380. Various Modes of Revocation ; Modern Legislation affects the Subject . There are various modes by which a will once executed may be revoked during 'the testator's lifetime; the fundamental principle being that every will (being in the nature of a gift or donation) is ambulatory until the t^estator dies, and may meanwhile be super- seded, altered, or simply set aside whenever by his own free and rational act suitably expressed the testator manifests a correspond- ing intention, or so changes his circumstances and state in life that the law mu^t infer that intent out of jus'tice to his new condition.^ Hence we may consider revocation under two distinct leading aspects: (1) revocation by the testator's direct act; (2) revocation by inference of law, from acts or conduct of the testator not direct.^ Under the former head may be considered the effect of actually cancelling, destroying, or obliterating the will ; also of making a later will or codicil inconsistent with the former ; also of expressly revoking by such later will or codicil or by some other writing ; all sufficient acts of direct revocation, in fact, whether by parol or writing, being here included. Under the latter head we consider more especially the effect of subsequent marriage and the birth of a child, or of marriage alone, or of a complete divorce. 1. But as to wills not strictly re- be express or tacit; it is general, fur- vocable because of mutual consider- thermore, when all the dispositions ation, see Joint and Mutual Wills, of the testament are revoked, and par- Part V. post. ticular when it falls upon one or more 2. Under the Louisiana Code, fol- of the dispositions without touching lowing the civil law provisions, the the rest. La. Code, § 1691. revocation of testaments is stated to 471 § 381 LAW OF WILI^. [PAET IV. There are important provisions bearing on this subject in tha Statute of Frauds, which our modern codes, English and Ameri- can, preserve and extend, with a view of reducing the compass of loose and uncertain testimony under this head as much as possible. Instruments which at this day must be made with solemn formali- ties are revocable in modem policy only by acts equally solemn and positive, or nearly so; in order that testamentary intent or a change of testamentary intent may be clearly evinced at the pro- bate, and the main conclusion arrived at (which after all is the material one) what was the latest rational disposition of his es- tate, intended by the decedent and duly expressed as the law re- quires, if he meant to die testate at all. For his earlier purposes, his earlier dispositions, are of no direct consequence on general principle, in the probate ; it is the latest disposition or dispositions, as a consistent whole, — the latest legally executed testamentary scheme, — or that alternative and substitute, the public scheme for intestacy, by which his estate must as a general rule be settled and his property descend and be distributed. § 381. The Same Subject. The English Statute of Frauds, as we have already seen, con- formed to Lord I^ottingham's wishes, in providing that no written will should be repealed or altered by any words or will by word of mouth ; that is to say, by testament merely nuncupative.^ The sixth section of this celebrated act was still more explicit, in dis- countenancing doubtful revocations, so far as related to devises of land. That section declared that no devise in writing of land, etc., nor any clause therex)f, should be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the testator himself, or in his presence and by his directions and consent; but all devises and bequests of land, etc., should remain 3. Fiupra, § 379; Act 29 Charles II. nuncupative will. McCune v. House^ (1G76-77), § 22. A duly executed 8 Ohio, 144. written will cannot be revoked by a 472 CHAP. I.] REVOCATION OF WILLS. § 381' and continue in force until the same were burnt, cancelled, torn or obliterated by tbe testator or his directions in manner aforesaid, or unless the same were altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses declaring the same.* The effect of this enactment was to demand on the testator's part either one of thoso plain and palpable acts which naturally signifies a changed inten- tion, like burning, cancelling, etc., the instrument itself, and which requires no witness, because the act itself takes away or discredits proof of the will ; or, instead, some other instrument in writing executed with all the formalities of the original one. At the time of this enactment, and by virtue of its provisions, no wills required an attestation except devises of lands.'' But when the legislature prescribed for wills of personal property, for all wills in fact, the same solemn execution by the testator and a stated number of witnesses, the rule of written revocation con- formed to the new policy. Under the English act of 1 Vict. c. 2G, § 20, it is declared accordingly, that no will shall be revoked but by another will or codicil, or by some writing executed like a will, or else by destroying the same.^ In the United States, we may add, the same policy has been quite generally favored; and pro- visions of this character, based in language upon the English Stat- ute of Frauds but extended to wills of all kinds, are common to our legislation in every quarter of tbe land.^ We are to observe, 4. Act 29 Charles II. § 6. stroying, or obliterating of the in- 5. See supra, § 253. strument. And this must be done by 6. Act 1 Vict. 26, § 20. For the the testator; or, as most of our State precise language used, see Appendix, legislatures provide, by some other post. person, in his presence, and by his di- 7. 4 Kent Com. 520, 521, and cita- rection. Some local varieties of Ian- tions. As to the several American guage will be found. lb. codes on this subject, see Stimson's Where a statute prescribes the Am. Stat. Law, § 2672. In nearly all mode by which a will may be revoked, the United States it is expressly pro- evidence of its revocation by any vided that no will, devise in a will, other mode is inadmissible. 81 Ala. or codicil, can be revoked except by 418. the burning, tearing, cancelling, de- 473 § 382 LAW OF WILLS. [part IV. however, that, as the language of the later English enactments re- duces the scope of infonnal and inexplicit revocation once so liber- ally permitted, so does American legislation tend at this day, in the same direction, while codes differ, nevertheless, in fixing the standard, and use terms more or less comprehensive to denote it.* Revocation by the testator's direct act is what these codes, English and American, seek to circumscribe ; for, as we shall see, that revo- cation which the law implies from a changed condition in the testa- tor's condition and circumstances, marriage more especially, is still a feature of our law.^ And the testator's direct act of revocation ought in all cases to be accompanied with the intention to revoke. § 382. Oral or Implied Revocation not recognized. A written testament, then, cannot be revoked in modem practice by mere words of oral revocation, however emphatic of expression or intended to take absolute effect.^ Still less can wills be made 8. The Massachusetts statute, for instance, declares: "No will shall be revoked unless by the burning, tear- ing, cancelling, or obliterating of the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his di- rection; or by some other writing, signed, attested, and subscribed in the same manner that is required in the case of a will; but nothing contained in this section shall prevent tlie revocation implied by law from sub- sequent changes in the condition or circumstances of the testator." Mass. Pub. Stats. (1882) c. 127, § 8. Cf. the precise language used in other American enactments upon this same subject. 9. Stat. 1 Vict. c. 26, §§ 18, 20, ex- pressly provides for revocation by Bubsoquent marriage. The Massachu- setts statute, supra, is seen to reserve revocations implied by law. Other 4 instances from the codes might bbe cited. The main point of modern in- terest is whether marriage alone re- vokes as to both sexes, without the birth of a child. See §§ 424-426, post. 1. Supra, § 381; Hylton v. Hylton, 1 Gratt. 161; Perjue v. Perjue, 4 Iowa, 520; Jackson v. Kniflfen, 2 Johns. 31, 3 Am. Dec. 390, 2 Ycates, 170; Kent v. Mahaffey, 10 Ohio St. 204; Wittman v. Goodhand, 26 Md. 95; Jones v. Moseley, 40 Miss. 261, 90 Am. Dec. 327; Slaughter v. Stev- ens, 81 Ala. 418, 2 So. 145; Kirk- patrick v. Jenkins, 96 Tenn. 85, 33 S. W. 819. Before the Statute of Frauds there might be parol revoca- tion. Cro. Jac. 497. And see 5 Conn. 164. A testator went to his executor, took the will from his custody, and showed the envelope containing it to liis wife, telling her that it was good for nothing and was to be destroyed. 74 CITAP. I.] ' REVOCATION OF WILLS. § 383 or revoked bj legal implication from outward tokens of a decedent's personal feelings towards those concerned in his estate f or by mere manifestations of an intention to make a different disposition at some future time.^ § 383. Revocation by Burning, Tearing, Cancelling, Obliterating, etc. Our investigation leads us, then, to compare the language of local enactments, from the time of Charles II., not expressed with uniform favor, as to revocation by direct act of the testator. And first, as to burning, cancelling, tearing, obliterating, and the like, with suitable intention. '' Burning, cancelling, tearing, or ob- literating " is the language for which the Statute of Frauds set3 the copy.* " Burning, tearing, or otherwise destroying " are the words of the Wills Act) of Victoria, suggesting a narrower con- struction, but applicable more universally to wills, whatever the kind of property.^ Each American code employs its own terms, but generally some or all of the above. Such are the modes to which one is confined who seeks to re- voke by what he does to the will itself. It is obvious that utterly destroying the instrument so as to leave nothing which may ever be produced in evidence again is one method here contemplated, and the more favored if not the only favored one; and that the other method consists in leaving the instrument so cancelled or ob- literated that an intent to revoke may well be inferred from its ap- After his death, the instrument was is for the testator to perform the found uncancelled in a bureau drawer eflScient act; the law cannot do it for which contained various waste pa- him. Jones v. Moseley, 40 Miss. 261, pers. It was held that the will had 90 Am. Dec. 327. But the act of can- never been properly revoked. Good- celling or disposing may be ex- sell's Appeal, 55 Ct)nn. 171, 10 A. 557. plained in the light of the testator's And see Mackenzie's Estate, (1909) feelings where the act is in doubt. P. 305. 3. Rife's Appeal, 110 Penn. St. 232, 2. Not even where the testator dis- 1 A. 226. inherited his son by will, and after- 4. Stat. Charles II. § 6. wards became reconciled to him, can 5. Stat. 1 Vict. c. 26, § 20. revocation of the will be implied. It 475 § 384 LAW OF WILLS. [PART IV. pearance. Certainly, if one means to revoke, it is his best course to bum or tear up his will, so that no scrap of it shall remain be- hind him; for otherwise, with all his pains, he tempts those who are shown what was given them, and then cut off, to conjure up doubts whether he really cancelled, and thus plunge the estate into a doubtful contest. § 384, The Same Subject: the Sane Intention to revoke must accompany the Act. "Whatever the means thus employed for defacing or destroying the will, a free and rational intention to revoke must accompany the act on the testator's part, or the revocation will not be valid. Thus, to use Lord Mansfield's illustration, if a man were to throw ink upon his will instead of sand, there would be no revocation of the will although the writing were irrecoverably gone ; ^ nor, we may add, would exposure of the will to destruction or defacement by insects, mice, acids, fire or water, through mere heedlessness, have this effect; and of course injury to the paper or its loss by act of God, or from any cause external and proximate without the tes- tator's due sanction, constitutes no legal revocation. Or suppos- ing a man having two wills of different date before him, should direct the former to be destroyed and by mistake the latter is can- celled.^ No revocation can be good which is procured by fraud or palpable error, or where the testator was unduly influenced to com- mit the act;^ and it is clearly settled that the revocation of a will while the testator is insane is no less void than the making of a will ; ^ because it requires the same capacity to revoke a will as to 6. Burtfnshaw v. Gilbert. Covvp. 52. main in force. Giles v. Warren, L. 7. Cowp. 52; Onions v. Tyrer, 1 P. R. 2 P. & D. 401. Wm.s. 345; Burns v. Burns, 4 S. & R. 8. -S'upr«, Part II. c. 10; O'Neall v. 205; Strong's Appeal, 63 A. 108'j, 79 Farr. 1 Rich. (S. C.) 80; 1 Pick. 546, Conn. 123, 118 Am. St. Rep. 138, 6 L. 547; Rich v. Gilkey, 73 Me. 595; Bat- R. A. (N. S.) 1107. Even where the ton v. Watson, 13 Geo. 63, 58 Am. will in torn up, under a mistaken im- Dec. 504. And sec § 427a. pression that it is invalid, and then 9. Harris v. Berrall. 1 Sw. Sc Tr. gathered up and preserved, it will re- 153; Scruby v. Fordliam, 1 Add. 74; 47G CHAP. I.] REVOCATION OF WILLS. § 385 make one, and one cannot intend to destroy, in a legal sense, unless liis mind acts rationally and to the point.^ Statutes frequently express the idea that the revocation of a will must be done " with the intention of revoking the same." ^ Such expression is not, however, necessary ; for it was long ago set- tled, upon construction of the Statute of Frauds, which used no language of the sort, that an act done without the mental intentioi] to revoke was wholly ineifectual.^ In short, the physical act itself is not conclusive, but open to explanation. § 385. Will destroyed, etc., unintentionally, to be established as it existed. It follows that if a will were duly executed by a testator while of sound mind and acting freely, and afterwards destroyed by him or some one else, without the free and rational animus revocandi on the testator's part, such will may be established in probate on secondary proof of its contents ; ^ and a like rule applies to lost or missing wills. But the presumption arises, that the will under such circumstances was intentionally revdked by the testator while he lived and was competent to revoke, and this presumption must supra, Part II.; Benson v. Benson, L. (testator sought to restore marks R. 1 P. & D. 608; 3 Hagg. 754; Smith- erased). wick V. Jordan, 15 Mass. 115; For- 2. Stat. 1 Vict. c. 26, § 20; Mass. man's Will, 1 Tuck. (X. Y.) 205; 4 Pub. Stats. (1882) c. 127. § 8; Stim- Barb. 28; Allison v. Allison, 7 Dana, son Am. Stat. Law, § 2672. 94; Brunt v. Brunt, L. R. 3 P. & D. 3. 1 Wms. Exrs. 147; Clarkson v. 37; Rhodes v. Vinson, 9 Gill. 169, 52 Clarkson, 2 Sw. & Tr. 497, Gow. 186; Am. Dec. 685; Ford v. Ford, 7 Jackson v. Holloway, 7 Johns. 394. Humph. 92; Rich v. Gilkey, 73 Me. 4. Scruby v. Fordham, 1 Add. 74; 595, and cases cited; Johnson's Will, Brand, Re, 3 Hagg. 754; Balton v. 40 Conn. 587; Mclntire v. Melntirc, Watson, 13 Geo. 63; Voorhis v. Voor- 47 S. E. 501, 120 Ga. 67, 102 Am. St. his, 50 Barb. 119. And see Birks v. Rep. 71. As to a testator mentally Birks, 34 L. J. 90; Chamberlayne capable, though under guardianship, Evid. § 2766; §§ 401, 402, post. As to see 107 Iowa, 750. a will destroyed after the testator's 1. No revocation is implied where death by one of his sons, but estab- none was intended. See Birks v. lishe;d in proof by the executor who Birks, 34 L. J. 90. See Safe Deposit collected the pieces, etc., see Leigh's Co. V. Thorn, 83 A. 45, 117 Md. 154 Goods, (1892) P. 82. 477 § 38G LAW OF WILLS. [pART IV. first be overcome.^ Even where a testator tears up his will or oodieil under the mistaken impression that he has not properly executed it, and orders a new and similar writing made out. but dies before executing it, the torn instrument is admissible to pro- bate on the ground that an intent to revoke was wanting.^ So may the will, or its pieces, be probated, where the testator tears the in- strument while actually insane.^ § 386. Effect of Intention to revoke where the Act does not cor- respond. On the other hand, if the maker of a will, intending to revoke it. destroys a paper which he is fraudulently induced to believe is the identical instrument when it is not, and continues in the belief that his will has been revoked, never again recognizing it nor knowing of its existence, this has been held a legal revoca- tion.^ Particularly does this hold true of a testator whose infirm- ity makes him dependent upon those about him by whom his con- fidence is abused ; and the sufficient act being applied to the wrong paper, the intent operates legally upon the true one.® But where the infirm testator directs some one else to destroy, and nothing is destroyed at all, no sufficient act appears upon which the court can fasten the intent to revoke; and his supposition that the direction was obeyed avails nothing.-^ iStill less should a revocation be in- ferred from such imperfect acts as placing one's own will among waste paper and refusing to receive it again when offered to him.^ Whether the testator's bare mistake, however, not induced by 5. See § 402, post. Hise v. Fincher, 10 Ired. 139; Blan- 6. Thornton's Goods, 14 P. D. 82. chard v. Blanchard, 32 Vt. 62. 7. Hincs's Groods, (1893) P. 282. 1. Malone v. Hobbs, 1 Rob. 346, 39 And see Mclntyre v. Mclntyre, 47 S. Am. Dec. 263; 3 Leigh, 32: Ruiikle v. E. 501, 120 Ga. 67, 102 Am. St. Rep. Gates, 11 Ind. 95; Mundy v. Mundy, 71; Brassington's Goods, (1902) P. 15 N. J. Eq. 290; MeBride v. Me- 1 (de.stroying when drunk and putting Bride, 26 Gratt. 476; Trice v. Ship- together when sober again). ton, 67 S. W. 377, 23 Ky. Law, 2392. 8. .Smiley v. Gambill, 2 Head. 164. And see next section. 9. Pryor v. Coggin, 17 Ga. 444; 2. Hill's Succession, 47 La. Ann. 329. 478 CHAP. I.] REVOCATION OF WILLS. § 387 the fraud of others, can cause a paper to be revoked which he did not actually revoke, may well be doubted; as if one should care- lessly bum up some letter by himself, supposing it his will, and die without discovering his error. For it is straining a rule, out of regard to justice, to detach the intent from the act ; the general maxim being, that no intention to revoke can constitute a legal re- vocation unless the sufficient statute act accompany it.^ So, too, courts have not felt justified in setting a will aside on the plea that the coercion, fraud or undue influence of others pre- vented the testator from revoking it when he desired to ; ^ though ipossibly they would in a heinous ca^e. And it should be borne in mind, moreover, that one may ratify, republish, or keep in force the will which he once meant to revoke but did not, by his own active or passive conduct after the coercion is removed or the fraud or mistake discovered ; ^ for if one's purpose is to revoke, he should pursue that purpose consistently to the end. § 387. Burning, Cancelling, etc., must be by Testator himself, or under his Direction, etc. Inasmuch as revocation involves intention, the inference arises that the physical act must be performed by the testator himself or under his sanction and direction. Nor is legislation silent on this point; for the Statute of Frauds expressly requires the burning, cancelling, tearing, or obliterating to be done " by the testator him- self, or in his presence and by his directions and consent " ; ^ and the substance, if not the phrase, of this requirement appears in later enactments, English and American.^ Both presence and di- rection of the testator being tlius essential where the act is per- formed by another, a will is not legally revoked, though destroyed 3. Delafield v. Parish, 1 Redf. (N. 111. 53, 41 L. R. A. (N. S.) 105, and Y.) 1; 25 N. Y. 9; Blanchard v. Blan- cases cited. chard, 32 Vt. 62; cases post. 5. Taylor v. Kelley, 31 Ala. 54; 4. Floyd V. Floyd, 3 Strobh. 44; Lamb v. Girtman, 26 Geo. 625; Smith V. Fenner, 1 Gall. 170; Gra- CNeall v. Farr, 1 Rich. SO. ham V. Burch, 47 Minn. 171, 174, 28 6. Supra, § 381. Am. St. Rep. 339, 49 N. W. 697; 7. Ibid. Bohleber v. Rebstock, 99 N. E. 75, 255 479 § 387 LAW OF WILLS. [PAKT IV. by the testator's own order, if burned or torn where he did not or could not see or take cognizance of the deed done.^ The local statute must determine whether both presence and direction are here indispensable. Destruction of the instrument, then, by a third party without the testator's permission or knowledge, whether before or after his death, would be an invalid, if not a criminal act.^ Ratifica- tion by the testator of such a destruction is not readily to be in- ferred.^ On the other hand, no fraud is committed by any per- son in destroying or assisting to destroy a will by the genuine ox- press direction and in the presence of the testator, though apart from all others ; for every testator has the right, while in the full possession of his faculties and acting freely, to destroy his own will at any time or in any manner he pleases, be it secretly or ■openly.^ If a person, confided in, disobeys the testator's direction, though deceitfully, and preserves the will intact, no legal revocation takes place; for nothing is destroyed or cancelled.^ But deceit and disobedience to the extent of destroying a paper artfully substi- tuted for the will in question in the testator's presence and with all the precision required by law may operate differently ; and the testator, remaining ignorant of the fraud and free from fault on 8. Dadd's Goods, Dea. & Sw. 290; Be, 6 Jur. 564; 1 Robert. 661; of. Dower v. Seeds, 28 W. Va. 113. supra § 292. 9. Haines v. Haines. 2 Vern. 441; 1. Mills v. Millward, 15 P. D. 20. Bennett v. Sherrod, 3 Ired. 303. 40 Quaere whether ratification under Am. Dec. 410; Swanson's Succession, suoh circumstances would constitute 58 So. 1030, 131 La. 53. See New a legal revocation within the statute. York code, which treats such acts as lb. It would not, according to Gill '•fraudulent." Early v. Early, 5 v. Gill ( 1909) , P. 157. Redf. 376. A testator cannot dole- 2. Timon v. Claffy, 45 Barb. 438; gate his power of revoking a will by § 388; MeOarn v. Rundall, 82 N. W. inserting in it a clause which con- 942, 111 Iowa 406. fers on another an authority to de- 3. Supra, § 386; Ilylton v. Hyl- Htroy it after his death. The effect ton, 1 Gratt. 161; II Ircil. 95. And of such destruction would be, to per- see Mundy v. Mundy, 15 N. J. Eq. niit the contents of the will to be es- 290; Graham v. Burch, 47 Minn. 171. tubiishcd by secondary proof. Ni)rtl\ 480 CHAP. I.] KEVOCATION OF WILLS. § 388 his own part, the legal act done to the wrong paper has been treated as though done to the right one.* Where the testator asks the custodian of his will to bring the paper to him, intending to re- voke it, and the custodian neglects or refuses to comply, no re- vocation is constituted ; '" and the same may be said where he sends any one else for the will and it is not brought to him.^ ISTor is the testator often without resource in such a ca^e ; for he may still revoke his will by some other method.^ A testator cannot delegate the power of revoking his will for some one else to exercise upon surviving him, nor change or annul its terms by any mere verbal direction or declaration subsequent to its execution.^ ]^or can he confer such an option upon another by the will itself. § 388. No Witnesses Necessary to the Burning, Cancelling, etc. It is not necessary tbat the burning, cancelling, tearing, or ob- literation of the will by the testator be attested by witnesses. In- deed, a leading advantage which such means of revocation are sup- posed to afford consists in the secrecy permitted to the lawful dis- poser.* But various American codes require proof by at least two 4. Supra, § 386; Smiley v. Gam- 7. A testator, finding himself thus bill, 2 Head, 164; Hise v. Fincher, thwarted, may execute a new will, or 10 Ired. 139. a revocation in writing, in presence 5. Laycroft v. Simmons, 3 Bradf. of witnesses. And if an extreme case (N. Y.) 35. should show that by daring force or 6. In M'undy v. Mundy, 15 N. J. fraud, and against his protest, the Eq. 290, a testator asked his wife to means of revocation were utterly de- bring his will from the place of de- nied him, so that he could not exe- posit, intending to burn it. She cute his intention, the court would afterwards induced liim to suppose pronounce, perhaps, according to his that she herself had brought and wislies. burnt it. It was held that there wis 8. Stockwell v. Ritherdon, 1 Rob- no revocation, the will not having ert. 661 ; White's Will, 25 N. J. Eq. been burnt. See also Bohleber v. Reb- 501. See North Re, 6 Jur. 564. But stock, 99 N. E. 75, 255 111. 53, 41 L. cf. § 293, supra. R. A. (N. S.) 105 (testator thwarted 9. Timon v. Claffy, 45 Barb. 438. by sons when confined to his bed and asking for a lawyer). 31 481 § 389 LAW OF WILLS. [pART IV. witnesses where the ^act is done by some other person under the testator's direction/ § 389. Destruction of a Will by Burning, Tearing, etc., illus- trated: English Cases. The utter destruction of one's will by burning, tearing, and the like, the intent accompanying the act, supplies the simplest in- stance of revocation. Destniction is the only mode favored in this connection by the English Statute of Victoria and many Ameri- can codes; defacement being deemed too dubious an act. 'Not only burning or tearing would satisfy such enactments, but cut- ting, throwing into the water, steeping in acids, and ether equiva- lent destructive acts.^ But the difficulty to solve, is whether statutes like these exclude, by inference, whatever destruction of the instrument falls short of annihilation, or at least of rendering original proof of its con- tents impossible. Some have argued for this narrow construction. But the English courts of probate have ruled less strictly ; and where the testator has cut out his own name from the will with clear intent to revoke it, this act is held a sufficient destruction ; for an essential part of the will, an integer, is thereby destroyed, nor does the statute expression " otherwise destroying " necessi- tate a destruction of the entire instrument.^ So may cutting out 1. Stimson Am. Stat. Law, § 2672. be perfectly illegible, tbis act, accom- 2. Wms. Exrs. 134; Hobbs v. panied by the suitable intent, would Knight, 1 Curt. 768; Clarke v. constitute a revocation within the Scripps, 2 Rob. 563, 570, 575. Statute of Victoria. See also Sir 3. Hobbs V. Knight, 1 Curt. 768. It John Dod-son in Clarke v. Scripps, 2 is here observed by Sir Herbert Jen- Rob. 563, 5 Notes Cos. 390. ner that, l)y parity of reasoning, if In Williams v. Tyley. Johns. 530, the names of the witnesses were taken it was held n sufficient destruction for away by the testator animo revo- one, who intended revoking, to tear randi, it would be a good destruction off the signatures he had made to'the of the will under tlie act. The in- first four sheets and strike his pHwi olination of his opinion was, upon the through the last signature; the effect same principle, that if the testator's being to make the instrument dif- signature had been burnt or torn out, ferent in execution from what the or even so carefully obliterated as to attestation clause described. 482 CITAP. I.] REVOCATION OF WILLS. § 390 that part of the will which one would call the principal part con- stitute a sufficient revocation, if the full intent accompanied the act ; ^ or even tearing off the seal animo revocandi, though a seal is admitted to be no essential part of a will.^ But to cut out a par- ticular clause or the name of a particular legatee or some minor part of the will, imports only a revocation pro tantof' So too the mutilation of a will by cutting out the executors' clause has been treated as simply revoking the choice of executors.^ And while pasting a blank paper may amount to destniction, total or pro tanto as the case may be, inasmuch as the original writing becomes effiaced in consequence, the idea of " destroying " under the Stat- ute of Victoria, is not realized by acts which fall short of efface- ment.^ Indeed, the English cases which construe that enactment, rely upon some act of destruction, which so far as it goes utterly effaces, and in order to revoke the whole will destroys some inte- gral part essential to the entirety of that will.^ And of course the full intention to revoke should accompany the act, or no such con- sequence will follow.'^ § 390. The Same Subject. Under the Statute of Frauds, however, a very slight act of bum- 4. Williams v. Jones, 7 Notes Cas. 1 Sw. & Tr. 31. And where the will 106 ; Gullan Re, 1 Sw. & Tr. 125 ; 26 consists of various sheets, each of Beav. 64. which is signed and attested, it is the 5. Price v. Powell, 3 H. & N. 341. signature and attestation at the end This decision of the Court of Ex- whose destruction is disastrous. Gul- chequer went upon the ground that Ian Re. 1 Sw. & Tr. 125, 26 Beav. 64. the attestation clause declared this But destroying the principal part of instrument to be under seal, and the the will may prove equally so. lb. seal being torn off, the will ceased to And so with cutting off signatures be the instrument which the testator on earlier sheets, where something purposed to execute and publish. in the will or the attestation clause 6. Giles V. Warren, L. R. 2 P. & D. makes those signatures an integral 401; Woodward Re, L. R. 2 P. & D. and necessary part of the will Har- 200. ris Re, 3 Sw. & Tr. 485. Scratching 7. Maley's Goods, 12 P. D. 134. out signatures with a knife is a re- 8. Horsford's Goods, L. R. 3 P. & D. vocation within the Statute of Vic- 211. toria. Morton's Goods, 12 P. D. 141. 9. Tearing off signatures and at- 1. Cheese v. Lovejoy, 2 P. D. 251. testation has this effect. Lewis Re. 483 §391 LAW OF WILLS. [ PART IV. ing or tearing might suffice for revocation if a genuine intention accompanied the act.^ But some burning or tearing, if only of a small part, or so as to scorch or mutilate the paper, was needful ; mere intention or attempt did not fulfil the statute ; and yet it mattered not that the writing was still legible in spite of the act, or the maker's disposition traceable by putting the torn pieces of his will together.^ Where the testator arrests his own design be- fore the act is completed, revocation does not take place.* § 391. Cancelling, Obliterating, etc., illustrated: English Cases. A more equivocal act is the mere defacement of the instrument by cancelling, obliterating, and the like : modes of revocation saetioned by the Statute of Frauds, but discarded because of their uncertain tenor, in the later enactment of Victoria. And here let us remark, that by that earlier legislation such acts as tearing off or effacing one's signature and seal at the end of the will were the common expression of a testator's intention to revoke, and required no such strain of interpretation as English courts must now apply ; ^ for if the act was not " destroying," it might at all events be reckoned as cancelling or obliterating the will. Drawing lines over the testator's name was likewise a sufiicient cancellation within the earlier act.® Behind such defacement perhaps might be read the entire will as originally executed, in all its integrity; and though the testator left the instrument among his papers at his death, cut about and through, without any real mutilation of what was written therein, the purpose of cancelling, obliterating, or destroying made such revocation legally sufficient.'^ In fact, the principle appears to have been well established in the English courts before 1837, that if the testator intended to revoke by can- 2. J3ibb V. Thonia.s, 2 \V. Bl. 1043. laimholl v. Lumbcll, 3 Hagg. 568. Cf. 3. Doe V. Harris, 8 Ad. & El. 1, 1 mpra, § 389. Jarm. 130. 6. Ca.s. Temip. Lee, 34. But cf. 4. Doe V. Perkes, 2 B. & Aid. 489; fJrantley v. Garthwaite, 2 Russ. 90 C'olberg lie, 2 Curt. 832; Elms v. (oblitoration, etc., of the envelope of Elms, 1 Sw. & Tr. 1.55. a will not effectual, the paper itself 6. .Scruby v. Fordham, 1 Add. 78; rcniaiiiiiig intact). 7. Moore v. Moore, 1 Phillim. 357. 481: CHAP. I.] KEVOCATTOiVr OF WILLS. § 392 celling or obliterating, not to say destroying, his will, and he did all he meant to do by way of expressing that purpose, no literal cancellation or obliteration, and certainly no effactment, was nec- essary.^ Where a pencil was used for cancelling, instead of a pen, the courts regarded the act as prima facie deliberative, rather than final. But a final purpose to revoke might be shown, and if so, the cancellation effected that purpose.^ As for obliteration under the Statute of Frauds, the effect followed usually the intent; and here the problem was to determine whether such acts as drawing the pen over part of the will amounted to a partial or total revocation, if intended for revocation at all.^ This whole subject bristled with practical difiiculties, and we need only observe that, under such a statute, some act must be done to the paper ; that the revocation may be partial or total ; ^ and that cases have refined much upon obliter- ating the material part of a clause or sentence, such as the devisee's name, whereby the devise or gift becomes ipso facto revoked.^ § 392. The Same Subject. On the other hand, no mere defacement or crossing out of the testator's signature, so as to leave it still legible, will satisfy the present Statute of Victoria ; for this constitutes no destruction within the act.'* And if a will should show the testator's signa- ture struck through with a pen and another signature written and 8. 1 Wms. Exrs. 133. 2. 1 Jarm. Wills, 134, 135; Sutton 9. M'ence v. Mence, 18 Ves. 348; v. Sutton, Cowp. 812. Francis v. Grover, 5 Hare, 39; Hall 3. See Swinton v. Bailey, 4 App. Re, L. R. 2 P. & D. 256. Contra, Cas. 70; Larkins v. Larkins, 3 B. & Tomlinson's Estate, 133 Penn. St. P. 16; Mence v. Mence, 18 Ves. 350. 245, 63 A. 7, which presumes noth- The discussion of a gift of this kind, ing less final in cancelling with a where the clause cancelled or oblit- lead pencil than with ink, though erated designates various parties in the will was written in ink. Yet here, interest, invites some very nice dis- cancelling a list of bequests aided the tinctions. See 1 Jarm. Wills, 134, 135, conclusion of the court as to the can- and cases cited. celling intent of the testator. 4. Benson v. Benson, L. R. 2 P. & 1. I Jarm, Wills, 134, 135. D. 172; Stephens v. Taprell, 2 Curt. 458; 4 Notes Cas. 101. 485 § 393 LAW OF WILLS. [PAET IV. left, the natural presumption would be that the original erasure was not made with the intention to revoke at all, but wa^ connected in some way with the final execution by the signature substituted.^ Cancelling or mere obliteration constitutes no revocation, as the English law now stands ; but essential words as originally written must, to one who looks at the will, be quite illegible.* § 393. Burning, Tearing, Cancelling, etc., illustrated: American Cases. Allowing for differences of local legislation, the American doc- trine closely resembles that of England ; and as a State enactment conforms to the looser or more rigid policy, so must be the course of judicial precedents in that jurisdiction. In States which permit of cancelling and obliterating, as well as destruction, tearing off the seal of a will (needless as a seal may be for its proper execution) constitutes a revocation when the intent accompanies the act.^ Drawing lines over the testator's name animo revocamdi amounts furthermore to revocation by cancelling, even though his signa- ture be still legible.^ And tearing a will into several fragments 5. King, Goods of, 2 Robert 403. 7. Avery v. Pixley, 4 Mass. 460; 6. Stephens v. Taprell, 2 Curt. 458 ; Johnson v. Brailsford, 2 Nott & 1 Jarm. Wills, 142; 4 Notes Cas. McC. 272. In White's Will, 25 N. J. 101; Brewster Re, 6 Jur. N. S. 56. Eq. 501, there was obliteration of The policy of 1 Vict. c. 26 is fur- signatures, besides tearing off the ther enforced by § 21 of that enact- seal. ment, which declares that no oblitera- Where a will is signed several tion, etc., of a will, after its execu- times, and also at the end, it is the tion, shall have any effect, " except last whose erasure repeals the will. 80 far as the words or effect of the Evans' Appeal, 58 Penn. St. 238. will before such alteration shall not ^ Baptist Church v. Robbarts, Z be apparent," etc., unless executed as Penn. St. 110. Even the drawing of a will. See c. 2, post, as to altera- pencil-marks over the signature is tion of a will, where this subject is i,old sufficient. Woodfill v. Patton, discussed more fully. 76 Ind. 575, 40 Am. Rep. 269; Towns- A writing declaring an intention hend v. Howard, 86 Me. 285, 29 A. to revoke, and executed as a will, 1077 (where there was corroborating may supplement a doubtful erasure. proof besides, of the intent to revoke, Gosling's Goods, 11 P. D. 79; § 404. wlieu the cancelling took place). 486 CHAP. I.] KEVOCATION OF WILLS. § 394 will suffice, tliongli the fragments be gathered up afterwards, so that the instrument stands clear.* Cancellation by drawing lines across is an equivocal act, how- ever, and may be explained by circumstances and proof of intent.^ So again, must the intention of the testator decide whether an ob- literation of the will is a revocation or not.^ A careful interlinea- tion cannot be pronounced an " obliteration " within the wills act.' J^evertheless, cancelling or obliterating are acts very liberally con- strued at the old law; and as distinguished from destruction or defacing the writing so as to leave it illegible, the act implies that the instrument is still preserved in legible shape, but with some- tbing upon it which indicates that the will (or at least some por- tion of it, if revocation be pro tanto) has ceased to stand accord- ing to the testator's original intention.* § 394. The Same Subject. Slight acts accompanied by the suitable intent, are often per- mitted to suffice for this sort of revocation. Under our earlier legislation, it is ruled that the slightest tearing or burning, even of an unnecessary^ part of a will, accompanied by evidence aliunde 9. Sweet v. Sweet, 1 Redf. (N. Y.) revocation. Clark v. Smith, 34 Barb. 451. Here the intended revocation 140. was clear, and the act was held com- 3. Dixon's Appeal, 55 Penn. St. 424. plete, though the testator's wife 4. Evans' Appeal, 58 Penn. St. gathered the fragments again, un- 238. A will may be cancelled by an known to him, and sewed them care- act done to the instrument which fully together, so that the will was stamps upon it an intention that it legible. And see 77 N. Y. S. 166; shall have no effect, though the act Evans' Appeal, 58 Penn. St. 238 ; 133 be not a complete obliteration or phy- Penn. St. 245, 19 Am. St. Rep. 640, sical destruction. " Obliteration " in 7 L. R. A. 209, 19 A. 482. the wills act is not confined to effac- 1. Bethel v. Moore, 2 Dev. & B. 311; ing letters or words so that they can- Smock v. Smock, 11 N. J. Eq. 256. not be read. And " cancellation " of 2. Jackson v. Holloway, 7 Johns. a will means any act done to it which 394; Means v. Moore, 3 McCord, 282. in common understanding is regard- And see Frear v. Williams, 7 Baxt. ed as cancellation when done to an- 350. Erasures which do not mater- other instrument. It must be an act inlly affect the meaning or force of done to the will itself animo cancel- the will have not the effect of legal landi. lb. 487 § 394 LAW OF WILLS. [part IV. of the intention to revoke, is a revocation.-^ The destruction or cancelling of a principal part of the will may serve for the whole.® But a will cannot be revoked by any mental intention of the testa- tor, even though such intention be evidenced by a written state- ment, unless the statutory forms, whatever those may be, are com- plied with.'^ Apart from that consideration, the broad inquiry must be, what, in view of the surrounding circumstances, the tes- tator really intended ; and revocation, whether of the whole in- strument or a part, should be determined accordingly.^ Such is the American doctrine, and it differs not essentially from that of the mother country. But some of our latest American enactments are quite as rig- orous as that of Victoria, in confining simple revocation of the in- strument itself to acts whose nature is to destroy. Thus, under the Iowa Code, which provides that a will may be revoked by destruc- tion, or by cancellation with intent to revoke if the cancellation is witnessed in the same manner as a will, it is held that a will is not revoked by interlining or drawing a scroll through the signature so as to leave it still legible. For, admitting that to destroy is not necessarily to annihilate, within this statute, there can be no de- 5. Dan v. Brown, 4 Cow. 483; 6 lb. in view of the proof, to revoke the 377; Johnson v. Brailsford, 2 Nott codicil only, and not the will on the & M. 272; 4 Kent Com. 582. reverse side of the paper, though some 6. In Muh's Succession, 35 La. words which the will contained were Ann. 394, 48 Am. Rep. 242, four- carried away. And see cases cited in fifths of the legacies were erased with preceding section. Ill Mo. App. 447 the pen, but still legible; the clause 90 S. W. 1037) ("burning"); appointing executors was erased (Mass's Estate, 60 P. 186, 14 Col. App. more completely, and tlie testator's 377; Gardner v. Gardiner, 19 Atl. signature was left hardly legible at 651, 65 N. H. 230, 8 L. R. A. 383; all. In the margin were several ad- Van Woert's Will, 137 N. Y. S. 748; ditions, apparently designed for a Hartz v. Sobel, 71 S. E. 995, 136 Ga. new will. It was licld tlie will was 565 (a " material portion " destroyed, revoked. etc., defined as not " an essential por- 7. Dclaficld V. Parish, 25 N. Y. 9; tion " under statute); Barnes' Will, Blanchard v. Blanchard, 32 Vt. 62. 136 N. Y. S. 940 (indorsing over sig- 8. Sec Cook Re, 5 Pa. L. J. 1, where nature " null and void," etc., a re- tlic testator tore ofT his name at the vocation). foot of a codicil, and this was held, 488 CHAP. I,] REVOCATION OF WILLS. § 395 struction unless the essential words destroyed are rendered illegi- ble ; and as for merely cancelling, by anything short of this effect, it cannot operate unless witnessed like a will.* § 395. Incomplete Burning, Tearing, Cancelling, etc. No greater difficulty is presented in this connection than that of determining the legal effect of an inchoate or incomplete act of burning, tearing, cancelling, etc., according as the local statute pre- scribes. But next to considering the limits which the local statute may have set to the act of revocation, the cardinal inquiry relates to the intention which appears to have accompanied the testator's act. Moreover, as every court means to decide justly, and accord- ing to the real merits of the controversy, where it may, the in- choate or incomplete act is helped out if possible, when the fraud of others impaired its efficiency ; but otherwise, when the testator alone was at fault in not doing all that the court asked of him to make his act positive and final. Thus, to take that range of acts most widely permitted by legis- lation under this head, namely, burning, tearing or otherwise de- stroying. Under the Statute of Frauds, a case arose where the testator ordered his will to be brought to him ; he opened it, looked at it, gave a wrench so as nearly to tear it, then rumpled it up and threw it contemptuously upon the fire. But the will fell off ; and as it lay where it must soon have been burnt, a woman in the room picked it up and put it in her pocket. The will was produced for probate, after his death, slightly singed and with the writing still legible. It was held in this case that there was ^a sufficient '' burn- ing or tearing," within the statute, and that the revocation was complete.^ Yet, as the authorities agree, there must be an actual burning or tearing, etc., to some extent in order to constitute a re- vocation ; ^ and accordingly, where another testator, who also in- 9. Gay v. Gay, 60 Iowa 415, 46 147, 66 A. 701; 77 N. Y. S. 178; 172 Am. Rep. 78, 14 N. W. 238. And see N. Y. 360, 65 N. E. 173. Howard v. Hunter, 41 S. E. 638, 115 1. Bibb v. Thomas, 2 W. Bl. 1043. Ga. 357; Knapen's Will, 105 Md. 2. Supra, § 389. 489 § 395 LAW OF WILLS, [PAET IV. tended to destroy, threw his will upon the fire, from which some one rescued it in a similar manner, but with only a comer of the envelope burned, revocation was held incomplete.^ The courts appear to have reconciled these decisions by drawing the line between scorching the surface of a will and burning only the envelope which contains it; * but such a line must be physically •an exceedingly fine one.^ We apprehend that other circumstances really strengthened the present distinction and caused the court to stretch the act in the one case so as to correspond with the testa- tor's intent, while in the other, the intent was not positive enough to bear out the act. In the former, the testator meant that his will should be destroyed, and imagined that he had completed the act, and the woman who rescued the will deceived him in preserv- ing it.^ But in the latter, the testator saw his will snatched from the fire, and parleyed with the rescuer ; that person promised to throw it into the fire again, but did not; so that the case resolved itself into the disobedience of a testator's direction to destroy, a preservation of the will in breach of trust. Such conduct consti- tutes no legal revocation of a will ; '^ and a careful testator, fully resolved to carry out his intention, would have watched to see his direction obeyed and the will burnt before his eyes. An incom- plete or inchoate act fails utterly when the intent was incomplete ; nor can another's fraud or disobedience be set up which the testa- tor's own fault promoted.^ 3. Doe V. Harris, 6 Ad. & El. 209. 6. Bibb v. Thomas, 2 W. Bl. 1043. 4. English text-writers seem to 7. Runkle v. Gates. 11 Ircd. 95: 1 take this same distinction in their Gratt. 161; Boyd v. Cook, 3 Leigh 32, contrast of these cases. See 1 Wms. supra, §§ 387. 390. Ivxrs. 137. 8. Doe v. Harris, 6 Ad. & El. 209. 5. The cases cited under tlio earlier Had the person, in this case, who statute do not stand upon a " deatruc- snatched the will from the fire, sub- tion " to the extent of ronderinf^ ea- stituted another paper adroitly, and sential words illegible. How seldom, burnt that instead, the testator using then, would it occur that if the en- such vigilance against the deception volope was burned, the instrument as his infirmities permitted, there would not at least show signs of be- would, semble, have been a legal re- ing scorclicd. 490 CHAP. I.] REVOCATION OF WILLS. § 396 § 396. The Same Subject. From other instances in the reports, the effect of complete in- tention may be contrasted with incomplete where the act was equivocal. One man tears up his will under a mistaken impres- sion that its provisions are of no effect; then recovering himself he gathers the pieces together once more, and preserves them care- fully, meaning that the instrument shall serve its original pur- pose.® Here it has been held that no complete revocation ever took place; and we may imagine similar cases, as where one's will is ac- cidentally torn while destroying his old letters, and the testator takes the fragments from the waste-basket, and restores the paper. But another man tears his will, intending to destroy it; and his wife or adult child collects the pieces and puts them together again neatly, without his knowledge ; here there is revocation, for though the fragments were not minute, the animus revocandi was com- plete, and fraud must not prevail against it.^ The minuteness of the tearing is of secondary consequence; though without some tearing revocation would not have occurred. In an English case which turned upon the Statute of Frauds, the testator, under a sudden impulse of anger against one of the devisees under his will who had provoked him, took the paper into his hands to destroy it. He tore the will twice through, when a bystander arrested his arm, and, the offending devisee submitting vocation. See supra, § 386, and cases 290. But Graham v. Burch, 47 Minn. cited. 171, 28 Am. St. Rep. 339, 49 N. W. American cases appear to justify 697, discountenances the idea of a our line of distinction. Thus, where formal destruction which the fraud- the maker of a will threw it on the ulent device of another frustrated, fire, meaning to destroy and revoke where in fact the testator was care- it, and it was burned through in three less and the will was put into a stove places without interfering with the where no fire was lit for two hours writing, and the will was then res- after. cued and preserved against his in- 9. Giles v. Warren, L. R. 2 P. & D, tention and without his knowledge, 401. And see Brassington's Goods, the court construed this into a suffi- (1002) P. 1 ; § 385 supra. cient revocation. White v. Casten, 1. Sweet v. Sweet, I Redf. (N. Y. ) 1 Jones L. 197, 59 Am. Dec. 585. And 451. see Muudy v. Mundy, 15 N. J. Eq. 491 § 397 LAW OF WILLS. [pART IV. on the spot, the testator grew calm and proceeded no further. He fitted the pieces together, and finding not one word obliterated, remarked that it was good it was not worse. Upon this evidence a jury found that the act of destruction intended had never been complet-ed. and the Court of King's Bench sustained the verdict. ^No revocation, in short, had taken place, and the will remained in full force." A later case, where the testator tore his will almost in two, but was stopped by the protest of others in the room, who told him that it would be dangerous to destroy one will before he had made another, was decided on the same principle.^ In all such cases it is of much consequence that the testator, upon opportunity, treats the burned or mutilated instrument as valid, for the rest of his life; for this circumstance indicates that a final and full revocation was never intended by him. And we apprehend that under strict statutes like that of Victoria, which require an act of '' destroying," there must be some injury com- mitted to the extent of destroying the entirety of the will or ren- dering a material part thereof illegible, else no revocation will § 397. Revocation of a Part only of a Will by Destruction. An analogous difiiculty in the doctrine we are discussing relates to acts of revocation pro tanto. The English Statute of Victoria, 2. Doe V. Perkes. 3 B. & Aid. 489. structive revocation, under the new And see Colberg's Goods, 2 Curt. 832 ; Statute of Wills, in an equivocal case. Giles V. Giles, 1 Cam. & Nor. 174. 1 Wms. Exrs. 137. Coleridge, J., con- 3. Elms V. Elms, 1 Sw. & Tr. 155. sidered this point in Doe v. Harris, And see Giles v. Warren, L, R. 1 P. 6 Ad. & El. 209. "There must be & D. 401 ; Coftee v. Coffee. 46 S. E. such an injury, with intent to re- 620, 119 Ga. 533 ; Swanson's Sue- voke," he observes, " as destroys the cession, 58 So. 1030, 131 La. 53; Safe entirety of the will; because it may Deposit & Trust Co. v. Thom, 83 A. then be said that the instrument no 45, 117 Md. 154 (trying to restore longer exists as it was." Tliis view marks erased). is supported by Hobbs v. Knight, 1 4. English writers consider it dilTi- Curt. 768, and the other cases cited, cult to state at present any precise svpra, § 389. See also Gardner v. extent to which tiie burning, tearing, Gardiner, 19 Atl. 651, 65 N. H. 230. etc., must go in order to justify con- 492 CUAP. I.] REVOCATION OF WILLS. § 397 while insisting upon some sort of destruction, appears to allow part only of the will to be revoked in that manner.^ Under the older law, as we have seen, one had a very liberal discretion to re- voke his will in part, and annul some particular devise or bequest, if such was his actual intention, by obliterating or cancelling a particular clause, or even material words therein, the rest of the will standing as before, agreeably to his supposed intent.^ Great license prevailed, in consequence, this privilege of the testator ex- tending to altering or interlining the original instrument at pleas- ure so as in effect to make a new will, and that with very little formality.^ Under the Statute of Victoria this practice was checked by an express provision that obliterations, interlineations or other alterations, should be executed with testamentary fomiali- ties ; not to add its confinement of revocatioii to acts of destruction.* Yet it would appear that one may still revoke yro tanto under that act by tearing up or burning one or more sheets of his will (sup- posing it written on several sheets), as he was permitted to do by the Statute of Frauds, and still earlier by the common law.^ 5. 1 Wms. Exrs. 129; Clark v, 7. Mence v. Mence, 18 Ves. 348; Scripps, 2 Eob. 593, 597; Christmas Ravenscroft v. Hunter, 2 Hagg. 68; 1 V. Whinyates, 3 Sw. & Tr. 81. " No Wms. Exrs. 143. Drawing a pen will or codicil, or any part thereof, across the name of a devisee or lega- ehall be revoked otherwise than, etc., tee may thus revoke the devise or be- or by the burning, tearing, or other- quest. Mence v. Mence, ib. But it ^vise destroying the same." 1 Vict. is otlierwise where such name occurs c. 26, § 20. But as to the effect of several times, and the testator draws obliteration in part, see language of his pen across in some places and ib. § 21; c. 2, post. leaves the name standing in others. 6. Supra, § 391; Swinb. pt. 7, § Martins v. Gardner, 8 Sim. 73. 16, pi. 4; Sutton v. Sutton, Cowp. 8. I Vict. c. 26, § 21; ib. § 20. 812; Scruby v. Fordham, 1 Add. 78; 9. 1 Wms. Exrs. 128, 141, 143; Larkins v. Larkins, 3 B. & P. 16; Scruby v. Fordham, 1 Add. 74; 3 Swinton v. Bailey, 4 App. Cas. 70. Hagg. 552. And see next c. Though This law applied both to devises of not if the rest of the will becomes land and written wills of personal unintelligible. Leonard v. Leonard property. 1 Wms. Exrs. 143, and (1902) P. 243 (whole will revoked cases supra. The Statute of Frauds thereby ) . speaks of revoking a devise or ■" any clause thereof." Supra, § 381. 493 § 397 LAW OF WILLS. [part IV. This doctrine of partial revocation, even under the restrictions adopted by later English legislation, is not greatly favored in American codes at the present day. Many of our local enact- ments, it is true, once pursued the language of 29 Car. II., so as to admit of revocation pro tanto ; but of late years that language has undergone a change of expression in leading States. Various codes now drop all reference to revocation in part; and the gen- eral policy intimates that such changes of disposition require an instrument executed with all the formalities of a will.'^ The ISTew York statute provides expressly that no will shall be revcked or altered except by another will or " unless such will be burnt, torn, cancelled, obliterated or destroyed," etc. ; and this is construed not to admit of obliterations in part, with a revocation in effect pro tanto, though a full revocation may result from acts formerly de- cisive.^ In other instances our courts have disavowed the earlier common law doctrine on this point,^ But American cases may be found of earlier or later date, where, conformably with the local statute then operating, a partial revocation with suitable intent 1. See Mass. Pub. Stats. (1882) c. 127, § 8. But this omission of stat- ute reference to revoking " in part " does not, as the Massachusetts stat- \ite reads, exclude a partial revoca- tion in this manner. Bigelow v. Gil- lott, 123 Mass. 102, 25 Am. Rep. 32. The context, were it thus construed, would exclude the right to revoke in part by a codicil. lb. 2. Lovell v. Quitman, 88 N. Y. 377, 42 Am. Rep. 254; 25 Hun S.'IT This overrules McPherson v, Clark, 3 Bradf. (N. Y.) 96. And see Pres- cott Re, 4 Redf. (N. Y.) 178; c. 2, -post; 1 Dem. 484; Stimson Am. Stat. Law, § 2672; Van Woert's Will. 131 N. Y. S. 748 (cutting out one's own signature). 3. Esclibach v. Collins, 61 Md. 478, 48 Am. Rep. 123. The intended ob- literation of a part without the in- tention of revoking the whole will, cannot constitute a full revocation. Means v. Moore, Harp. (S. C.) 314. The Alabama statute does not permit of a partial revocation. If the name of one of the legatees appears erased from the will offered for probate, this may be offered to prove that a total revocation was intended, but not a partial one. Law v. Law, 83 Ala. 432, 3 So. 252. The erasure of a specific legacy with the effect of in- creasing the residuary bequest is not a sufficient revocation. Miles Re, 68 Conn. 237, 38 A. 39 (statute). And see Griffin v. Brooks, 48 Ohio St. 211, 31 N. E. 734. 494 OJIAP. I.] EEVOCATION OF WILLS. § 398 lias been applied to the cancelled portion of a will, leaving the residue unchanged.^ § 398. Difficulty where the Revocation depended upon Another Act. Ariiother difficulty snggestod in this connection relates to the effect of destroying or cancelling where the testator meant that his act should depend upon some other efficient act ; as where a second will was to be substituted for the will revoked. Here the courts have tried to pursue the testator's intention and accept its guid- ance; a course which is often the harder for the reason that a tes- tator's mind has not grasped the exigency at all. In a leading English case a testator prepared his second will and then cancelled the first; but the second will proved void for non-compliance with the statute forms of execution; and the court accordingly ruled that the first w^ill remained in force, inasmuch as the revoked act, which depended upon the validity of the substituted paper, never took full effect.^ Here it happened, however, that the second will varied not materially from the first ; in fact, making a change in 4, Brown'3 Will, 1 B. Mon. 56; Trust Co. v. Thorn, 83 A. 45, 117 Md.. Borden v. Borden, 2 R. I. 94; Kirk- 154 (one clause revoked by erasure, Patrick Re, 22 N. J. Eq. 463; Bige- where the character of the other pro- low V. Gillott, 123 Mass. 102, 25 Am. visions remained unaffected) ; Brown Kcp. 32; Myrick Prob. 128. v. Brown, 74 S. E. 135, 91 S. C. 101 Tomlinson's Estate, 133 Penn. St. (revocation pro towio by an interlinra- 245, 19 Am. St. Rep. 635, 7 L. R. A. lion) ; Hartz v. Sobel, 71 S. E. 995. 209, 19 A. 982, is an extreme case, 136 Ga. 565 (no revocation pro tanto which not only permits of the par- allowed) ; Schnable v. Henderson, 152 tial revocation of a will under the S. W. 231 (Tex. Civ. App.). See local statute, but allows legacies to Rowan's Estate, 83 A. 429, 234 Pa. be thus cancelled in a will written 584 (trifling interlineations for iden- out in ink by mere lead-pencil alter- tifying beneficiaries closer do not re- ations, without, of course, obliterat- voice) ; Sheaffer's Estate. 87 A. 577, ing what was originally written. 240 Penn. 83, 102 N. E. 465, 215 See further, Hubbard v. Hubbard, Mass. 276; Osburn v. Trust Co., 102 198 111. 621, 64 N. E. 1038; Hull's N. E. 571, 209 N. Y. 54; Bloodgood Will, 89 N. W. 979, 117 Iowa 738; v. Lewis, 102 N. E. 610, 209 N. Y, 95.. Blackett v. Zicglor, 153 Iowa 344 5. Onions v. Tyrer, 2 Veru. 742. (statute defined) ; Safe Deposit and 495 § 398 LAW OF WILLS. [PART IV. the name of one of the trustees, but not changing the disposition of the estate. But later courts, while recognizing the same prin- ciple, extended its operation much farther; defeating thereby, in some instances, the testator's presumable preference, as it would seem, for the sake of establishing a permanent principle.^ And the principle appears to be this : that where the cancelling or de- stroying his first will was made by the testator to depend upon the validity of his second will or substitute, and the second will or isubstitute cannot legally take effect, such cancelling or destroying fails to operate as a revocation, even though the revoking act would per' se have sufficed. But this rule appears to be confined in modem practice to cases in which the testator evidently meant his revocation to depend upon the validity of the substituted will and where the two dis- positions are closely connected, the one to make way for the other. Revocation, as an immediate and positive act, cannot be so de- pendent for its validity upon some ill-defined purpose which the testator cherishes to make another and a different will hereafter. And we may regard it as a principle that any will which is de- liberately destroyed without accident or mistake, the full present purpose to revoke accompanying the act, becomes revoked, even though the testator meant to make a new will at some future time as its substitute, but omitted to do so.^ For the mere indefinite purpose to make another will hereafter does not prevent an imme- diate revocation from taking effect.^ And in general, a present revocation is quite consistent with some purpose to execute here- after another will, which purpose is never really carried into effect ; ^ for here the law of intestacy appears to supply the testa- 6. See Burtonshaw v. Gilbert, Dec. 361; Safe Deposit & Trust Co., Cowp. 52; Perrot v. Perrot, 14 East, S3 A. 45. 117 Md. ir,l. 440; Thynne v. Stanhope, 1 Add. 53; 8. 32 L. J. Prob. 202; Williams v. 1 Wms, Exrs. 148-152; 1 Eq. Ca.s. Tyley, Johns. 530. Abr. 409; 3 ib. 776. See Stamford 9. Brown v. Thorndiko, 15 Pick. V. White (1901), P. 46. 338; Johnson v, Brailsford, 2 Nott. 7. Scmmcs v. Semmes, 7 TTar. & J. & M. 272. .388; 1 ITow. (Miss.) 336, 29 Am. 496 <:;nAP. i.] revocation of wills. § 399 tor's wishes more appropriately if a hiatus is left than the scheme of disposition which the testator had himself recalled. ISTor does the cancelling of a new will restore the former one which has been finally cancelled and revoked.^ Other instances may be adduced in this connection where de- pendent acts of revocation fail because that which was depended on gained no efficacy. As where it appears that the testator did not intend to die intestate; but made alterations in his first will, as preparatory to executing a new one, and not for a final cancel- ling of the former; and his death prevented his second will from being executed,^ But if the second will or substitute be legally prepared and duly executed, so as to take the place of the cancelled instrument in probate, revocation is not hindered by a failure or disappointed operation of the second disposition through a legal construction of its terms.^ Prudence suggests, on the whole, that a testator who prefers his old will to stand rather than die intes- tate, should carefully refrain from cancelling or destroying it until the new one has been executed in due form; and sometimes he will retain the earlier will for presentation in case his later will should fail of probate from some cause. § 399. Revocation where Wills are Executed in Duplicate. If, as sometimes is done for the greater security, a testator executes his will in duplicate, keeping only one part while his ex- ecutor, attorney, or another in his confidence has custody of the other, the effect of destroying or cancelling one of such papers without the other may give rise to controversy. Doubtless his true and safe course is to gain control of both papers and revoke 1. 4 Kent Com. 531. But see c. altered the duplicate of his first will, post, as to republication; Marsh v. leaving the duplicate intact with tlie Marsh, 3 Jones L. 77. executor. 2. Applebee's Goods, 1 Hagg. 153; 3. As if the second disposition 32 L. J. P. M. & A. 202 ; Eeles's should fail, because the legatee was Goods, 2 Sw. & Tr. 600. In Hyde incapable of taking. Tupper v. Tup- V. Mason, cited 1 Wins. Exrs. 149, per, 1 Kay & J. 665 ; Quinn v. Butler, 150, and 4 Burr 2515, the testator L. R. 6 Eq. 225. 32 497 § -iOO LAW OF WILLS. [PART IV. them equally bj one and the same act. But this is not essential ; for where a testator cancels or destroys by a suitable act the paper in his own possession, it may be strongly presumed that he does not intend the duplicate to stand.* On the other hand, if he has possession of both papers and destroys or mutilates one, leaving ■the other intact, the will may be presumed unrevoked.^ The strength of the presumption in equivocal acts will vary, however, according to circumstances; possession or non-possession of the duplicate being the element chiefly regarded and yet not conclusive of the issue.^ § 400. Effect of destroying, etc, Will, but not Codicil. WTiere, again, there is a will and codicil, and the will appears to have been destroyed, but not the codicil, the question arises whether the act of revocation has annulled both instruments. This must be determined by circumstances ; and, as in duplicate wills, a testator's custody of both instruments or of one only may go far to aid the solution. But supposing the testator to have kept possession of both papers or to have had equal acce.-s to them, the effect of revoking his will alone must turn mainly upon the de- pendence or independence of the codicil. If the provisions of the codicil are inseparably blended with those of the will, the act 4. Cowp. 49, 2 Phillim. 23; Strick- voked by revoking one of two copies land V. Strickland, 8 C. B. 724 ; Pem- retained by testator ) . Lerton v. Pemberton, 13 Ves. 310; 5. Roberts v. Round, 3 Hagg. 548. O'Neall V. Farr, 1 Rich. 80. And see See Lord Chancellor Erskine's rules Rickards v. Mumford, 2 Phillim. 23; of presumption as laid down in Pem- 2 Hagg. 266; Hyde v. Mason, supra. berton v. Pemberton, supra. And see Where a testator executed in dupli- Schofield's Will, 129 N. Y. S. 190. cate, delivering a copy to his wife, 6. I Jarm Wills. 137. 138; I Wms. and it does not appear what became Exrs. 154-156; Strickland v. Strick- of the latter copy, the inference is land, 8 C. B. 724; Hubbard v. Hub- that the will offered for probate is bard, 3 Cli. D. 738. the instrument he retained. Snider It will not be presumed from cir- V. Burks, 84 Ala. 53, 4 So. 225. See cumstances that a will was executed (1897) P. 40. See Paige v. Brooks, in duplicate, when the attesting wit- 74 Law T. 455 (will suitably re- nessos say that but one copy was executed. O'Neal! v. Farr, 1 Rich. 80. 498 CHAP. I.] REVOCATION OF WILLS. § 401 which revokes the will revokes the codicil also ; but if the codicil may from the nature of its disposition stand readily by itself, its validity remains unimpaired by an act which left that instrument intact, while destroying the will.^ § 401. Presumptions, etc., where Will is found mutilated, de- faced, etc. Where a will is found torn, mutilated, or defaced at the testa- tor's death, it is admissible to show that this was the result of use or accident, and not design on his part ; * or that it was done by some one else without his direction and presence ; for the vital question is, whether the testator meant thereby to revoke or not. And as bearing upon this question the treatment of the instrument, the place and period of its exposure, the character of the injury suffered, and other circumstances attending its production after the testator's death, may prove material where direct evidence of his intention is wanting.^ Yet the natural presumption arises, where the will remained in the testator's custody until his death, and then was found defaced, mutilated, or partially destroyed, that the act was done by the testator himself.^ From the appearance of the instrument as pro- 7. Cf. Tagart v. Squire, I Curt. knowledge. See also Fellows v. Al- 289, and Coppin v. Dillon, 4 Hagg. len, 60 N. H. 439, 49 Am. Dec. 328; 396; 2 Add. 116, 229; 1 Jarm. Wills Blakemore's Succession La. 1891. 139. And see Francis's Will, 132 N. 1. Christmas v. Whinyates, 3 Sw. Y. S. 695. & Tr. 81; 4 Kent Com. 532; 1 Jarm. 8. 1 Jarm. W^ills, 133; 2 No. Cas. Wills, 133. 601 ; Clarke v. Scripps, 2 Rob. 563 ; Where a will was found torn or Giles V. W^arren, L. R. 2 P. & D. 401; cut in two, in a bureau drawer of Woodward Re, L. R. 3 P. & D. 206. the testator, a place other than that 9. See Lawyer v. Smith, 8 Mich. where his valuable papers were usu- 411, where a will twenty-five years ally kept, parol evidence of the tes- old was found in a barrel of waste tator's acts and declarations at var- papers after the testator's death. ious times between the making of the Throwing away a will is not gener- will and his death, was held admis- ally a sufficient revocation. But the sible to show whether the mutilation case may be supposed where a tes- in question was intended by way of tator throws it into the water or the revoking his will. Patterson v. fire and it is rescued without his Tlickey, 32 Ga. 156. See also Smock 499 §401 LAW OF WILLS. [PAET IV. duced under such circumstances, however, active or passive con- duct is inferable, as the case may be; but positive and active de- facement or destruction warrants a conclusion, in the absence of other evidence, that the testator intended to revoke; though whether by an act sufficient or insufficient, statute construction must determine.^ Where, however, the will remained in a differ- ent custody and inaccessible to the testator, it may rather be pre- sumed that the defacement or destruction was not done by au- thority of ]aw, that is to say, by the testator or in his presence and under his direction.^ But all presumptions of this sort weigh lightly, and they may be rebutted by proof of the actual facts ; declarations and conduct of the testator himself, the conduct and admissions of custodians of the will, and other material testimony aiding the investigation in a given case. The conclusion results that the testator fully in- tended to revoke, or else that his intention wavered and was never completely carried out, or once more, that he had no intention to revoke at all ; and in this last instance, accident, the testator's own carelessness, or the carelessness or fraud of some one else may ac- count for the ap'pearance of the paper, and furnish to the triers a choice of inferences. And after all, a testator's full intention to revoke by what he does to the instrument may be thwarted by the insufficiency of his own act ; and his intention may have been to revoke in part only or alter the will by a warranted or unwar- V. Smock, 11 N. J. Eq. 156; 47 Ohio See Bell v. Fothcrnfill, L. R. 2 P. & St. 323, 21 Am. St. Rep. 820, 25 N. D. 148, where revocation in act and E. 209; Cutler v. Cutler, 40 S. E. intent was presumed, notwithstand- 689, 139 N. C. 1; 29 So. 98 (Ala. ing the testator appeared to have 1900) ; Safe Deposit Co. v. Thom, 83 stuck the signature on again in place. A. 45, 117 Md. 154. The onus of making out that the 2. Swinb. pt. 7, § 16, pi. 5; 1 Wms. cancellation of a will was the last Exrs. 157; 1 Cas. temp. Lee, 444: act of the testator himself lies upon T/nmhell v. Lambell, 3 Hagg. 698; those who oppose the will. Hitching Baptist Church v. Robbarts, 2 Penn. v. Wood, 2 Moore P. C. 355; 1 Wms. St. 110. P'rom the sufficient act the Exrs. 159. law further presumes the intention. 3. Bennett v. Sherrod, 3 Ired. L. 1 Wins. Exrs. 147, 157; 3 Hagg. 568. 303. .^.00 CTTAP. I.] EEVOCATION OF WILLS. 402 ranted exercise of discretion under the local statute, as the case may be.* § 402. Presumption, etc., where Will cannot be found. So, too, where it is proved that a will was made and the testator retained custody of it or had ready access to it, the presumption arises, if the will cannot be found after his death, that he destroyed it with the intention of revoking it; though such a presumption may be overthrown by circumstantial or other proof to the con- tary.^ "Where, however, another person was the custodian of the will, and the testator had not ready access to it, there appears no such presumption ; ^ nor where the testator was insane for the in- 4. As to mere obliterations and in- terlineations appearing on the face of a will, and nothing to explain them, it is presumed that they were made after the will was executed; and so, too, with mutilations. See next c; also 1 Jarm. Wills, 143, 144; Cooper V. Bockett, 4 Moore P. C. 419; Greville v. Tyler, 7 ib. 320; Bur- goyne v. Showier, 1 Rob. 5. 5. 1 Wms. Exrs. 157, and cases cited; 2 Phillim. 23; 3 Phillim. 126. L. R. 1 P. & D. 381, 309, 371; Lillie V. Lillie, 3 Hagg. 184; 1 Curt. 289: Finch V. Finch, L. R. 1 P. & D, 371; Weeks v. McBeth, 14 Ala. 474; South- worth V. Adams, 11 Biss. C. C. 256; Minkler v. Minkler, 14 Vt. 125 ; Ham- mersley v. Lockman, 2 Demarest, 524; Foster's Appeal, 87 Penn. St. 67, 30 Am. Rep. 340; 177 Penn. St. 218, 35 A. 558; Mercer v. Mackin, 14 Bush. 434; Schultz v. Schultz, 35 N. Y. 653; Brown v. Brown, 10 Yerg. 84 ; Davis V. Sigourney, 8 Met. 487; .Johnson's Will, 40 Conn. 587; 98 N. C. 135, 3 S. E. 719; Cheever v. North, 106 Mich. 390, 58 Am. St. Rep. 499. 37 L. R. A. 561, 64 N. W. 455; Boyle v. Boyle, 158 111. 228, 42 N. E. 140. So if a will was executed in duplicate, and the part which the testator re- tained cannot be found after his death, the presumption is that he destroyed it animo revocandi. 2 Phillim. 23 ; Calvin v. Fraser, 2 Hagg. 266; supra, §§ 283, 399.. The mere fact that the will was in existence a short time before the testator's death does not overcome the presump- tion that, having the opportunity, the testator revoked it by destruction. Collyer v. Collyer, 110 N. Y. 481, 6 Am. St. Rep. 405, IS N. E. 110. 6. Schultz V. Schultz, 35 N. Y. 653, 91 Am. Dec. 88. The custodian's explanation may help clear the issue. See 10 N. J. Eq. 196; Behrens v. Behrens, 44 Ohio St. 323, 21 Am. St. Rep. 820, 25 N. E. 209. A will duly executed and found after the testator's death may be ad- mitted to probate where the contents of a later will which cannot be found are not shown. Cunnion's Will, 94 N. E. 648, 201 N. Y. 126; Williams V. Miles, 127 N. W. 904, 87 Neb. 455; § 412, post. 501 403 LAW OF WILLS. [part IV. tervening period until he died.'^ If a will last traced to the tes- tator's custody cannot be found at his death, the presumption that he destroyed it for the purpose of revocation outweighs the proba- bility of its fraudulent and criminal destruction by another, when unsupported by any evidence except that of oppoi'tunity,^ though this latter circumstance is always worthy of consideration with other proof. And where it is shown that the testator had been aware, while alive, that his will was lost when in his own custody, and yet, with ample opportunity, made no attempt whatever to reproduce or republish its contents, a court may fairly assume that he in reality revoked it.^ A sufficient act of revocation with sufficient intent being dis- proved or not presumable, the contents of the destroyed or miss- ing will may be established upon secondary proof of its contents ; as by draft, copy, or the testimony of the scrivener who wrote it, or other sufficient parol proof.^ If the destruction of the will was procured by the compulsion or fraud of some third person, satis- factory proof, oral if need be, should also be furnished.^ 7. Sprigge v. Sprigge, L. R. 1 P. & D. 608, 177 Penn. St. 218, 35 A. 558. 8. Bauskett v. Kelt, 22 S. C. 187; Collyer v. Collyer, 110 N. Y. 481, C Am. St. Rep. 405, 18 N. E. 110. For an exhaustive historical dis- sertation upon the jurisdiction of probate courts, unless forbidden by statute, to admit upon proof a lost, suppres.sed or destroyed will, see Dower v. Seeds, 28 W. Va. 113, 57 Am. Rep. 646. Chancery, by a bill suitably brought, has e.vercised a similar jurisdiction. lb. See fur- ther, 15 P. D. 170; Brookie v. Port- wood, 84 Ky. 259, 1 S. W. 637. 9. Deave-s's E.state, 140 Penn. St. 242, 21 A. 395. 1. 3 Sw. & Tr. 449; Burls v. Burls, L. R. 1 P. & D. 472; 1 P. & L). 431, 1 Phillim. 149; Sugden v. Lord St. Leonards, 1 P. D. 154; Ford v. Tea- gle, 62 Ind. 6. 2. 1 Wms. Exrs. 158 ; Foster v. Fos- ter, 1 Add. 462; Podmore v. WTiat- ton, 3 Sw. & Tr. 449; Card v. Grin- man, 5 Conn. 164; Burns v. Burns, 4 S. & R. 294. Statutes are found es- tablishing the method of proving a lost or missing will, and containing various other provisions as to the procedure. See Mosely v. Carr, 70 Ga. 333; 4 Dem. 53. If the testimony varies materially upon the essential features of the disposition, the will cannot be proved. 6 Abb. N. Cas. (N. Y.) 234. According to Sugden V. Lord St. Leonards, 1 P. D. 154, probate may be granted of so much of the will as the evidence ascertains, thougli the other part be not asccr- 502 CHAP. I.] EEVOCATIOIS: OF WILLS. § 403 § 403. Declarations of the Testator in issues of Revocation. As bearing upon the issue of revocation or no revocation by- means of an act done to the instrument, accompanying declarations of the testator, either verbal or written, may be shown at the probate, as part of the surrounding circumstances evincing this intent.^ And so toa, where the effect of doubtful acts of revoca- tion is to be established.* But when the act done constitutes no legal revocation at all, his declarations of intent are superfluous and inadmissible.^ If the will be lost or missing, after the testa- tor's death, his oral or written declarations are held admissible not only for rebutting any presumption that he had revoked the will during his life, but also as tending to show by secondary proof, what were its contents.® But some of the latest decisions tend to tained. See Vol. II, Schoul. Exrs. § 1084 ; Bcatty v. Clegg, 73 N. E. 383, 214 III. 34. See also Apperson v. Dowdy, 82 Va. 776, 1 S. E. 105. But cf. Woodward v. Goulstone, 17 App. Cas. 469, which seriously questions whether probate of a residuary be- quest alone ought to be granted, unless the court feels satisfied that it com- prehends the whole testamentary pur- pose of the deceased. The contents of a lost will should be fairly proved. 66 Cal. 487, 6 P. 326. But not " beyond a reasonable doubt." 82 Ala. 352. One witness or less than the attesting number may establish it. 82 Ala. 352, 2 So. 110; 118 111. 576, 59 Am. Rep. 375, 8 N. E. 852. But such a will should not be probated upon mere agreement of counsel. 6 Dem (N. Y.) 31. Nor upon mere hearsay and the declara- tions of the decedent. 50 Neb. 290. 38 L. R. A. 433, 69 N. W. 843. As to proving a revoc>ation of former wills by a later will, which is lost or destroyed, and whose contents can- not be proved other than the revoca- tory clause, see Cunningham Re, 38 Minn. 169, 8 Am. St. Rep. 650, 36 N. W. 269, and cases cited. 3. Evans's Appeal. 58 Penn. St. 238. 4. Patterson v. Hickey, 32 Ga. 156; Collagan v. Burns, 57 Me. 446, 99 Am. Dec. 782; 8 Mich. 441, 77 Am. Dec. 460; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322. See Mackenzie's Estate (1909), P. 305 ( probate allowed of a will found torn up, where testator had often spoken of will as in force) . 5. Gay v. Gay, 60 Iowa, 415; Har- groves v. Redd, 43 Ga. 142; 34 Barb. 140; Taylor v. Pegram, 151 111. 106, 37 N. E. 837, 46 Am. Rep. 78, 14 N. VV. 238; Jackson v. KniflFen, 2 Johns. 31, 3 Am. Dec. 390; Hoitt v. Hoitt, 63 N. H. 475, 56 Am. Rep. 530, 3 A. 604. 6. Sugden v. St. Leonards, 1 P. D. 154; Keen v. Keen, L. R. 3 P. & D. 105; 6 P. D. 1; Johnson's Will. 40 Conn. 587; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460; Patterson v. Hickey, 32 Ga. 156; Pickens v. Davis, 503 § 404 LAW OF WILLS. [PAPwT IV. restrain this latter principle, particularly where the testator's al- leged declaration would thus constitute the sole proof.'' In cases which involve the issue not of express revocation such as we have described, but of implied revocation, by inference of law, — as in the case of remarriage or other change of circum- stances — the weight of authority is against admitting the oral declarations of the testator to the point that he did or did not un- derstand his will legally revoked.^ § 404. Revocation by Subsequent Will or Codicil. iSTow as to the revocation of a will by a subsequent will or ai codicil. So long as the disposer of property lives and enjoys tes- tamentary capacity, he may make his will as often as he likes. But, as Swinburne remarks, " no man can die with two testaments, and therefore the last and newest is of force;" ' by which we are to understand that the latest will or codicil, duly executed, repeals 134 Mass. 252, 258. Cf. Collagan v. Burns, 57 Me. 440, where the court was equally divided. 45 Am. Rep. 322; Steinke's Will, 95 Wis. 121, 70 N. W. 61; 117 Cal. 288, 59 Am. St. Eep. 179, 40 P. 192; Boyle v. Boyle, 158 111. 228, 42 N. E. 140; McDonald V. McDonald, 142 Ind. 55, 41 N. E. 336; Jackson v. Hewlett, 77 N. E. 518, 114 Va. 573; Gumtow v. Janke, 143 N. W. 616, 177 Mich. 574. 7. The House of Lords in 1886 dis- credited Sudgen v. Lord St. Leonards, supra. See Woodward v. Goulstone, 11 App. Cas. 469, where a will was lost, and nothing was offered in proof of its contents but the post-testamen- tary declarations of the testator con- cerning its contents. This evidence was hold insuflicient, and some doubts were expressed as to whether such evidence could be admitted at all. See, also, Atkinson v. Morris (1897), P. 40. Tlif case is an extreme one; and out of indulgence to the difficult stress which a lost or missing will occasions, it seems fair that the tes- tator's declarations should be ad- mitted, as corroborative, at least, of other proof, for the purpose stated in our text. 8. Hoitt V. Hoitt, 63 N. H. 475, 56 Am. Rep. 530, 3 A. 604, with nu- merous citations; also § 424 post. As to the burden of proving revocation, where a will with cancellations, etc., is presented for probate, see Olm- sted's Estate, 122 Cal. 224, 54 P. 745. See further, as to lost or miss- ing wills, 158 S. W. 1080 (Ark.) ; Sheldon Re, 144 N. Y. S. 94 ; Rhoads's Estate, 88 A. 71, 241 Penn. 38; Cole v. McClure, 102 N. E. 264, 88 Ohio St. 1. And see Schoul. Exrs. & Admrs. (Vol. II) § 1084. 9. Swinb. pt. 7, § 14, pi. 1. A parol declaration concerning land is revoked by a devise of it. Kelly V. Johnson, 34 Mo. 400. 504 CHAP. I.] KEvocATio:jr of wills. § 405- all former wills which dispose of the estate differently, though all should happen to be preserved. The last will excludes per se every former disposition of a contrary or inconsistent nature, without requiring that the instrument annulled be destroyed as prudence dictates. So long as the law permitted wills of personal property to be executed without the solemnities pronounced necessary for devises of land, the subsequent disposition might be less formal than that which it superseded.^ But as legislation, English and American, commonly prescribes at this day, the later will, whether embrncing real or personal property or both, must be signed and attested with all tlie solemnities of the local statute, in order to revoke a former will, or indeed to operate at all.^ § 405. Subsequent Will does not revoke unless duly executed. Of revoking clauses in a will, as well as of instruments, not wills, which may revoke because of their express tenor, we shall speak presently. But apart from such revoking clauses, an in- strument which purports to be a will cannot as such revoke a prior 1. 8ui>ra, §§ 252, 253; 1 Cas. temp. Estate, 130 N. Y. 187 (a "codicil," Lee, 472. beiirr an addition, depends for its life 2. Supra, §§ 252, 253. The Statute and force upon the existence of the of Victoria has abolished in England will. In Oldroy v. Harvey (1907) all distinctions between wills of real P. 326, the form and position of an or personal property in respect of re- added codicil is considered, vocation. There must be " another A specific legacy is not revoked by will or codicil executed in manner a codicil bequeathing additional lega- hereinbefore required" (i. e., by sig- cies. Hamilton v. Hamilton, 134 N. nature and attestation in presence of Y. S. 645. two witnesses at one time) to operate Under the Statute of Frauds a revocation in whole or in part. Act slight difference in ceremonial be- 1 Vict. c. 26, § 20. And see language tween a devising and revoking will of the various American codes on this is made in the phraseology; but the point; their general policy being that difference has proved of no practical a revoking will or writing must be consequence, for the subsequent will executed and attested like any other usually aims to devise as well as to will. See also 144 Mo. 119, 46 S. W. revoke. 1 Jarm. Wills. 167, 168, 139; 151 Ala. 536, 44 So. 389; 135 commenting upon 29 Car. II. §§ 6, 22.. Iowa, 131, 112 N. W. 210; Nokes's 505 § 4:06 LAW OF WILLS. [PAKT IV. existing will, under our modern codes, unless properly signed and witnessed, though it should profess to dispose of the property dif- ferently.^ If it revoke at all, it must be as some other writing within the statute, for it is neither will nor codicil. § 406. If Subsequent Will dispose inconsistently, it is enough. A new will or codicil which is duly executed by signature and attestation as the statute requires, operates to revoke a former will wholly or in part, as the ca^ may be, by simply disposing of the estate in an inconsistent maimer; and no express words of revoca- tion are necessary.* Yet an express revoking clause is to be reeommended for insertion in all wills, so as not to leave the makei*'s intent to doubtful inference and litigation.^ The later will which thus revokes should be perfect in form and execution ; but its operation or non-operation from causes dehors the instru- ment would not affect the question.^ It must have been made freely and rationally like any will.^ 3. Reese v. Court of Probate, 9 R. I. 434; Nelson v. Public Admr., 2 Bradf. (N. Y.) 210; 15 Penn. St. 281, 53 Am. Dec. 597; Heise v. Heise, 31 Penn. St. 246; Taylor v. Taylor, 2 Nott. & M. 482; 3 MacArth. 153; Boylan v. Meeker, 2 Dutch. 274. Formerly, a finished will of per- sonalty might be revoked in extreme cases by an unfinished one. 1 Wms. Exrs. 168; 2 Phillim. 51. But this is inconsistent with the general policy if our modern legislation. For the rule of probate procedure, ■where a will has been regularly proved, and a later one is afterwards produced which does not revoke the former in terms, see Besancon v. Brownson, 39 Mich. 388. 4. Fisher Re, 4 Wis. 254; Burden's Estate, 11 Phila. 130; Ludlum v. Oti?. 15 linn (N. Y.) 410; .Johns Hopkins Univ. v. Pinckncy, 55 !Md. 365; 6 Dem. (X. Y.) 289; Bobb's Succession, 42 La. Ann. 40, 7 So. 60; 122 Ind. 134, 17 Am. St. Rep. 349; Teacle's Estate, 153 Penn. St. 219, 25 A. 1135; Cadell v. Wilcocks (1898) P. 21; Bryan's Estate (1907) P. 125. 5. See § 417, post. 6. Snowhill v. Snowhill, 23 N. J. L. 447; Reade v. Manning, 30 Miss. 308. Thus, a new will may fail of its purpose because the party for whose benefit it is made proves incapable of taking under it; yet it may be set up as a revocation of the former incon- sistent will. Laughton v. Atkins, 1 Pick. 535. And see 91 P. 929, 40 Col. 332 (widow electing against provis- ions) ; Dudley v. Gates, 125 Mich. 440, 83 N. W. 97; Russell v. Hartlcj', 78 A. 320, 83 Conn. 654. Revocation by a later will is good even thongh tlie earlier will disposes of all tlie ;0G CHAP. I.] EEVOCATION OF WILLS. § 407 § 407. But Later Will does not revoke unless inconsistent. On the other hand, the later will, though well executed, does not revoke the earlier one, as such and without express words of revo- cation, except by being inconsistent with it. And by the extent of such inconsistency must be measured the extent of the revoca- tion. To operate a total revocation in such a case, the two dis- positions must be so plainly inconsistent as to be incapable of standing together.^ Only revocation pro tanto results where the effect is that of partial inconsistency ; it is like making a will and then adding a codicil ; the final disposition reading by the light of both instruments together as a corrected whole.^ For any number of testamentary instruments, executed at different times, may constitute one's " last will " in legal effect, as construed together. But a later will has sometimes, by rather a forced construction, been held to repeal the former totally by implication, where the court can pronounce it as intended for a new, independent and final disposition. The decisions in point are, however, of doubtful authority; and the judges who made them appear to have laid hold of doubtful words and expressions in the later wills, as im- porting more clearly than the language warranted, that the testa- tor meant thereby to revoke in toto} A true will, which revokes estate and the later one of a part 799; 1 Atl. Rep. 845; Johns Hop- only. Bryan's Estate (1907) P. 125. kins University v. Pinckney, 55 ]\Id. 7. O'Neall v. Farr, 1 Rich. 80. 365; Smith v. McChesney, 15 N. J. 8. 1 Wms. Exrs. 162, correcting the Eq. 359; Teacle's Estate, 153 Penn. language of Swinburne (cited supra, St. 219, 25 A. 1135; Pillsbury's Will, § 404) that '-no man can die with 79 N. E.- 1114, 186 N. Y. 545; Gard- two testaments." ner v. McNeal, 82 A. 988, 117 Md. 9. Mastermun v. Maberly, 2 Hagg. 27; Miller v. Buchanan, 75 S. E. 773, 235; Stoddart v. Grant, 1 Macq. H. 114 Va. 76. L. 163; Lemage v. Goodhan, L. R. 1 1. These cases are cited in 1 Wms. P. & D. 57; Hellier v. Hellier, 9 P. Exrs. 163, 164. Thus, in Plenty v. D. 237; Laughton v. Atkins, 1 Pick 535, 543; Floyd v. Floyd, 7 B. M'on 290; Brant v. Wilson, 8 Cow. 56 Larrabee v. Larrabee, 28 Vt. 274 Fleming v. Fleming, 63 N. C. 209 Price V. Maxwell. 28 Penn. St. 23 West, 1 Rob. 264, the subsequent will disposed of only part of the testator'.^ personal estate. But Sir H. J. Fust relied greatly upon language therein which described the paper as " my last will." And see Outto v. Gilbert, Scott V. Fink, 45 Mich. 241, 7 N. W. 18 Jur. 560. But in many instances 507 § 407 LAW OF WILLS. [PAKT IV. completely all one's former wills by inference, is properly executed and described as a substantive will and not a codicil. According to the better rule, therefore, where revocation is simply implied from a subsequent will, inconsistent in terms, the revocation will be limited to such terms as are plainly inconsistent; and where a devise or bequest in the former will is clear and free from doubt, the intention to revoke it by the latter should be equally explicit." The governing principle in all such cases i» the testator's apparent intention. And one's intention in making a new will may have been to dispose of other property or make new provisions perfectly consistent with the former; or else to thereby revoke pro tanto by amendment ; it does not follow that a full revocation was intended.^ If the subsequent will substan- a paper described as one's " last will and testament " is probated as an ad- dition to a former will, out of a broader regard to the testator's in- tention. 1 Wms. Exrs. 163, notes; 5 Notes Cas. 183, 512; Lemage v. Goodban, L. R. 1 P. & D. 57. Hellier V. Hellier, 9 P. D. 237, harmonizes the probate and temporal courts on this point. See also Simpson v. Faxon (1907) P. 54 ("the last and only will "). The appointment or non-appoint- ment of new executors has little real bearing on such issues. 1 Wms. 164, criticising Plenty v. West, supra; Henfrey v. Henfrey, 2 Curt. 468; 4 Moore P. C. 29; Richards v. Queen's Proctor, 18 Jur. 540; Brown Re, 1 13. Mon. 56; Bailey Re, L. R. 1 P. & D. 628. Yet some of the earlier cases in the ecclesiastical courts seem to have YGparded the .sulwequent ap- pointment of a new executor by will jiH an implied revocation. 1 Phillim. 412, and cases citwl. On the other hand, where a codicil entirely revokes the will except as to the appointment of executors, the will remains pro tanto valid, and both instruments require probate Newcomb v. Webster, 113 N. Y. 191, 21 N. E. 77. 2. Masterman v. Maberley, and other cases, supra. 3. The cases sometimes turn upon a very nice construction of phrases which are supposed to indicate what the testator intended. Thus, a legacy " in lieu " of a former pro- vision may be held to revoke such provision. Brownell v. De Wolf, 3 Mason, 456. So, too, in a bequest to tenants in common, a distinction in effect is taken between the revoca- tion of a gift and of so much of the will as contains the gift. See 1 Jarm. W^ills. 170; Harris v. Davis, 1 Coll. 416; Sykes V. Sykes, L. R. 4 Eq. 200; Rife's Appeal, 110 Penn. St. 232, 1 A. 226. In Gordon v. Whitlock, 63 Va. 723, 24 S. E. 342, the will was minutely and carefully drawn, while the revoking instrument produced ;o8 CIIAP. I.] KEVOCATION OF WILLS. § 409 tially disclaims any intention to revoke, still less should revocation ensue. § 408. Intention to revoke must be Immediate, and not Pro- spective or Dependent. The intention to revoke implied in a will must be immediate, -and not prospective or dependent, in order to take effect. Thus, a will confined to other property, which intimates an intention to re- dispose of what the first will bequeathed, by a codicil to be here- after made, constitutes no present revocation of the first will. And the license formerly granted to wills of personalty informally executed, whereby one's mere instructions for a subsequent will might in an extreme case operate ipso facto to revoke an earlier on©,^ is discountenanced by the policy of modem codes. A doctrine has sometimes been set out of dependent revocations, favorable to the inference that the revocation of an existing will was intended to depend upon the efficacious substitute of a new and different one ; and hence that unless the new disposition took effect upon a due drawing up and execution, the old revocation might fail also. But this is a dangerous doctrine to be advanced upon any circumstantial proof; and a testator should guard his own intention carefully in this respect; for if he once cancels by appropriate act the cancellation takes full effect.® § 409. Inclination against Revocation; Use of a Codicil. The courts incline to so construe doubtful cases as to presei-ve, wholly or in part, the contents of the prior will rather than pro- nounce for a total revocation by inference. Where, for instance, was holographic, contained no clause 5. 1 Wms. Exrs. 161 ; 1 Cas. temp, of revosation and disposed of only Lee, 509; Helyar v. Helyar, 1 Phil- a very small part of the estate. lim. 430; § 381, supra. 4. Thomas v. Evans. 2 East 488; 6. See Olmsted's Estate, 122 Cal. 1 .Tarm. 171. Cf. Brown v. Thorn- 224. 54 P. 745; Williams v. Wil- dike, 15 Pick. 388. liams, 142 Mass. 515, 8 N". E. 424. 509 § 409 LAW OF WILLS. [PART IV» the later will only disposes of a portion of the estate, they avoid the ill consequence of partial intestacy ; ^ and where the later paper is styled a codicil, they take this to mean that the intent was to amend and not repeal ; ^ and in either case the fomier will is treated as no more than pro tanto revoked. In other cases, per- haps, the context may justify a similar construction. But if the later will does not profess to be a codicil at all, and disposes more- over of the entire estate inconsistently with the earlier, a court would violate its duty not to hold that the earlier will was wholly revoked, unless the context supplied good reason for supposing that rhe testator otherwise intended.^ The intention to revoke may be collected from informal expres- ■ sions, though not from ambiguous ones.^ And in case of doubt, provisions by a later will appear to be presumed additional and cumulative, rather than intended as a substitute and by way of revocation.^ Even where the literal construction of a codicil might favor the conclusion of a more sweeping revocation, a less sweeping one will be inferred if a fair comparison of will and codicil in all their provisions justifies the conclusion; for no dis- turbance of the former existing will is to operate from the later one other than necessity justifies.^ 7. Freeman v. Freeman, Kay, 479. does not operate as a total revoca- 8. Howard Re, L. R. 1 P. & D. tion. Gelbke v. Gelbke, 88 Ala. 630. The usual office of a codicil is 427, 6 So. 843. A codicil re- to vary or amend a previous will, vokes only so far as it is clearly in- and not to repeal it. 8upra, § 7; consistent with the former will. Lov- riext c. ering v. Balch, 96 N. E. 142, 210 9. 1 Jarm. Wills, 175; Henfrey v. Mass. 105; Vestal v. Garrett, 64 X. Henfrey, 2 Curt. 468; 4 Moore P. C. E. 345, 197 111. 398 (unless expressly 29. revoking) ; Osburn v. Trust Co., 131 1. Of. Gordon v. HofTman, 7 Sim. N. Y. S. 859; Blakeman v. Sears, 51 29; Pilcher v. Hole, 7 Sim. 208; 1 A. 517, 74 Conn. 516; 92 N. E. 533; Jarm. 182. 245 111. 622; 77 A. 321, 113 Md. 127. 2. 1 Wms. Exrs. 167. A codicil may be revoked intontion- 3. Reichard's Appeal, 116 Penn. St. ally without affecting the will. Os- 232, 9 A. 311; Thomas v. Levering, burn v. Trust Co., 102 N. E. 571, 73 Md. 451, 21 A. 367. 209 N. Y. 54, 46 L. R. A. (N. S.) Ambiguous language in a codicil 983. 510 CHAP. I.] EEVOCATIOJS" OF WILLS. § 410 § 410. Revocation by Subsequent Will under a False Assump- tion of Facts. Wlaere a testator revokes his existina; will, through some false or mistaken assumption of facts, which is discoverable from the face of the papers, the revocation does not tako effect. As if one should by a later will repoal legacies given bv an earlier one to his grand- children, " they being all dead," when in fact they are living ; * or should confer benefits upon one described as husband or wife, who turns out not to be legally a spouse by reason of some prior and existing marriage; ^ or should treat the gift as made to A in the original will when it was made to B.*^ This rule regards the testator's intent and the impulse which moved him to dispose as he did ; and courts treat the revocation accordingly as a sort of contingent or conditional one, whose condition or contingency has failed ; ' the intent being deficient, as in other cases of fundamen- tal mistake. Where no mistaken assumption appears, but a tes- tamentary purpose founded upon some recognized doubt or ac- companied by a mere misdescription of the person, or stating grounds of whose falsity or truth the testator judged for himself, this rule does not apply.^ Such a non-revocation, we may add, cannot be set up by show- in mistakes hot discoverable from the face of the testamentary papers ; and it is held that not only the mistake must be thus ap- parent, but what the will of the testator would have been except for the mistake.^ The failure of the revocation to take effect, however, appears the same, whether the new will with its false assumption revoked expressly or only by implication.^ 4. Campbell v. French, 3 Ves. 321; 8. See 1 Jarra. Wills, 183, citing- Crossthwaite v. Dean, L. R. 5 Eq. 10 Ad. & El. 228; Hayes v. Hayes, 245. 21 N. J. Eq. 265; Rkipwith v. Cabell, 5. Kennell v. Abbott, 4 Ves. 802; 19 Gratt. 758. Doe V. Evans, 10 Ad. & El. 228. 9. Gifford v. Dyer, 2 R. I. 99, 57 6. Barclay v. Ma-skelyne, 1 Johns. Am. Dec. 708. (Eng.) 124. 1. See Campbell v. French, 3 Ves. 7. 1 Wms. Exrs. 173, 174; 1 Jarm. 321. 183. 511 § 412 LAW OF WILLS. [PAKT IV. § 411. Two Wills of the Same Date, etc. T\%ere two contradictory wills are found bearing the same date, or without an}^ date at all, and nothing can be shown to establish relationship or priority in one or the other, both must be treated as void, and intestacy is the harsh result.^ But the court avoids this conclusion if possible, by collecting some consistent scheme of disposition from both papers, or determining their true sequence.' And it should be borne in mind that two papers, duly executed, may have the substantial force of a single testamentary disposi- tion.* Where duplicate wills are executed on the same day, the execu- tion of the second operates no revocation of the first; for the ap- parent intention is, that both shall constitute one and the same will.^ Even where one has executed a later will, wrongly sup- posing it to be an exact copy of his former one, while in fact it omitted certain essential parts, no revocation of those parts occurs, but both instruments are together entitled to probate,*^ Yet express revocation by a new will may take place, when so intended, at a later hour of the same day when the old one was executed.^ § 412. When Revoking Will cannot be found; Proof of Revoca- tion, etc. The execution of a subsequent will of different tenor operates to revoke a former one notwithstanding the later will be lost or mislaid, or at least cannot be found at the testator's death.^ Even supposing the second will destroyed by the testator with the in- tention of revoking it, he may have meant to die intestate.* 2. Phipps V. Anglesea, 7 Bro. P. C. 6. Rirks v. Birks, 34 L. J. 90. 43. 6a.. Head v. Nixon, 128 P. 557, 22 3. 1 Jarm. Wills, 175; 1 Wins. Idaho, 765. Exrs. 166. See Townsend v. Moore 7. Legare v. Ashe, 1 Bay, 464. (1005) P. 66. Here parol evidence of contents is 4. §§ 280, 399. admissible within the rule laid down, 5. Odenwaelder v. Schorr, 8 Mo. supra, § 402. App. 458. It is not necessary to pro- 8. Brown v. Brown. 8 El. & Bl. 876. du.'!e both papers for probate where But see § 413, post, as to reviving a will is executed in duplicate. Cross- a former will by cancelling the later mail V. Crossman, 95 N. Y. 145. one. 512 CHAP. I.] EE VOCATION OF WILLS. § 413 But where a will which cannot be produced is relied upon as revoking by implication a foi-mer one, its contents should bo clearly established.^ And the mere fact that a later will was made, by no means justifies the inference that it revoked in effect with- out proof of its actual contents.^ The English temporal courts appear to have insisted upon this doctrine more strenuously than, the spiritual tribunals ; ^ but on the whole it has been well estab- lished, though not without a struggle, that unless the tenor of a later and missing will can be ascertained, by clear secondary evi- dence of its contents, revocation of the earlier one which still exists uncancelled is not to be inferred when proof of such revocation is wanting.^ § 413. Whether the Revocation of a Later Will can revive an Earlier One. But supposing the contents of a later will sufficiently estab- lished, the question has long been discussed in courts, English and American, whether the revocation of such later will can per se revive an earlier one which remains uncancelled. The conclusion has been variously announced, and the fundamental difficulty ap- pears to consist in trying to spread a net which shall catch the tes- tator's intention each time without moving. The English common law tribunals laid down a rule, under 9. 1 Wins. Exrs. 162; Cutto v. Gil- St. Rep. 499, 37 L. R. A. 561, 64 N. bert, 9 Moore P. C. 131; Colligan v. W. 455; Kern v. Kern, 55 N. E. McKernan, 2 Dera. (N. Y.) 421; 1004, 154 Ind. 29; Cunnion's Will, South worth v. Adams, 11 Biss. C. C. 94 IST. E. 648, 201 N. Y. 126; Wil- 256. Hams v. Miles, 127 N. W. 904, 87 1. Hitchins v. Bassett, 3 Mod. 203; Neb. 455. 1 Show. 537, affirmed in Shaw. Cas. 3. 1 Wms. Exrs. 166; cases supra. Pari. 146. Where it was known that the second 2. Cf. Cutto V. Gilbert, 18 Jur. 560, will disposed diflTerently, but in what reversed in 9 Moore P. C. 131; Free- particulars unknown, or merely that man v. Freeman, 5 De G. M. & G. it was styled " last will," this does 704. And see Nelson v. McGiffert, not establish a revocation. lb.; Good- 3 Barb. Ch. 158; Peck's Appeal, 30 right v. Harwood, Cowp. 87, 7 Bro. Conn. 562, 47 Am. Pop. 685; Chee- P. C. 344. ver v. North, 106 Mich. 390, 58 Am. 33 513 g 413 LAW OF WILLS. [PAET IV.^ Lord ^Mansfield's lead, which has been thought more inflexible than that favored by ecclesiastical courts: viz., to the effect, that if a testator keeps his first will iindestroyed and uncancelled, makes a second will virtually or expressly revoking it, and then destroys or cancels the second will only, thus repealing its revocation, the first will thereupon revives and continues in force.^ But the ec- clesiastical courts announce that in all such cases the testator's in- tention should be the guide. " The legal presumption," as Sir John Xicholl declares, " is neither adverse to, nor in favor of, the revival of a former, concancelled, upon the cancellation of a later revocatory will. Having furnished this principle, the law with- draws altogether, and leaves the question, as one of intention purely, and open to a decision either way, solely according to facts and circumstances." ^ Even the common law courts have ques- tioned the broadn^s of the rule as Lord Mansfield first laid it down ; ® and indeed, it is possible that the eminent judge has not been accurately reported ; ^ while Sir John ]S[icholl, on the other hand, though professing that the law was unsettled in his day, gave a cautious preference to presuming against the revival of the for- mer will rather than in favor of it.^ There is a distinction well taken in such cases (which Lord M'ansfield may, if misreported, have had in view, though he probably had it not) ; namely, as between a later cancelled will which was merely inconsistent with the former one, and one which. 4. Lord Mansfield in Harvvood v. Mr. Williams disposes of this contro- Goodright, 1 Cowp. 91; Goodright v. versy (which relates to Goodright v. Glazier, 4 Burr. 2512. Glazier) by quoting Lord Mansfield's 5. Usticke v. Bawden, 2 Add. 125. language in Harvvood v. Goodright, And see Moore v. Moore, 1 Phillim. supra. 412. 8. Wilson v. Wilson, 3 Phillim. 6. Moore v. Moore, 1 Phillim. 419, 554; 1 Hagg. 326. But parol evidence ■where Justice Abbott and Baron of the actual circumstances is freely Richards appear to question Lord admitted to turn the force of any Mansfield's opinion; 1 Wms. Exrs. /presumption. lb ; Welsh v. Phil- ITU, lips, 1 Moore P. C. 209; 1 Wms.. 7. See note to Burr. 2513, 3d Ed., Exr8. 180. cited by 1 Wms. Exrs. 178, note. But 514 CHAP. 1.] KEVOCATION OF WILLS. § 414 contained a clause expressly revoking it. Where tbe one will was expressly revoked by the other, it seems fairly presumable that the immediate absolute and unequivocal revocation in writing remains unaffected by equivocal acts of parol touching the later instru- ment ; or, in other words, that if the subsequent will expressly re- voke the prior one, a simple cancellation of the latter cannot set up the former one again. ^ But some good authorities have questioned the soundness of such a distinction ; ^ though as affecting, at least, the strength of the bias or presumption against revival, it see^m-S an important one, even though controlling evidence of actual in- tent cannot be shut out. § 414. The Same Subject: Present English Rule. In this discrepancy of authorities, the statute 1 Vict. c. 26, undertook, in 18>37, to establish a rule for the future. Under § 22 of this enactment it is provided that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil exe- cuted as required by the act, and showing an intention to revive the same.^ This puts an end in England to all discussions of ob- scure intent on this point, and brings the courts of that country upon harmonious ground such as they never occupied before. Since this enactment operated, the uniform rule has been that after the execution of a subsequent will which contains an express revoca- tion, or which by reason of inconsistent provisions amounts to an implied revocation of the former will, such former will cannot be revived by the simple cancellation or destruction of the later will.^ No strict distinction is here preserved between an express or an implied revocation of the earlier will by the later one; yet the 9. 1 Powell Dev. (Ed. 1827) 537, 3. Major v. Williams, 3 Curt. 432; 528. Brown v. Brown, 8 El. & Bl. 876; 1. Jarman's note, ib. 529, cited in Dickinson v. Swatman, 30 L. J. (X. 134 Mass. 254. S.) 84; Wood v. Wood, L. R. 1 P. 2. Act 1 Vict. c. 26, § 22; Appen- & D. 309. dix, post. 515 § 415 LAW OF WILLS. [part IV. former mode of revocation best relieves the abstract question of difficulty.* § 415. The Same Subject: American Rule. In the United States, a like discrepancy of opinion is found in the several States whose courts have considered the subject; and legislation in many localities resolves the dispute substantially as the English Statute of Victoria has done.^ The policy of these enactments being that an earlier will once revoked ought not to be revived by the cancellation of a later will, we may consider Lord Mansfield's theory as in the main disapproved. For even in States whose courts are left without suck guidance, we fijid that, on the whole, the ecclesiastical is preferred to the common-law doctrine. Particularly is that doctrine asserted, where the later will which became revoked contained an express clause of revocation ; ^ and numerous decisions are put expressly on the ground that the later will revoked thus, and not by mere implication ; ^ yet leaving no 4. 1 Wms. Exrs. 181. In Hodgkin- son's Goods (1893) P. 339, the sub- sequent cancellation of a second will was held not to revive the revoked part of the first will. 5. Whenever legislation has dealt with this subject, in the several States, it appears to have been thought best to provide against con- structive revival of an earlier will by cancellation of the later one. New York, Ohio, Indiana, Missouri, Ken- tuckj', California, Arkansas and Vir- ginia are among the States where such enactments have prevailed. See 4 Kent Com. 532; 134 Mass. 256, 45 Am. Rep. 322, per Allen, J.; Rudisill V. Rodcs, 29 Gratt. 147; Beaumont v. Keim, 50 Mc. 28; 108 Cal. 688, 41 P. 771. 6. James v. Marvin, 3 Conn. 576 Simmons v. Simmons, 26 Barb. 68 Colvin V Warford, 20 Md. 357, 391 .51 Harwell v. Lively, 30 Ga. 315, 76 Am. Dec. 649; Bohanon v. Walcot, 1 How. (Miss.) 336, 29 Am. Dec. 631; Scott V. Fink, 45 Mich. 241; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; Moore's Will, 65 A. 447, 72 N. J. Eq. 371; 2 Dall. 266, 286, 390; Flintham v. Bradford, 10 Penn. St. 82. 7. Scott V. Fink and Colvin v. War- ford, sxipra. In Scott v. Fink the distinction is stated at length, and reference is made to tlie fact that an express revocation operated at once and unequivocally without being a needful ingredient of the will. But as to the implied revocation which results from the inconsistency of the second will with the first there are prevalent theories in the courts wliich interfere with its immediate opera- tion. The only chance for the second will here to operate was by its com- G CHAP. I.] KEVOCATION OF WILLS. 415 positive assurance that this distinction will be rigidly pursued. If, therefore, a will which was duly executed, and which contained a clause expressly revoking all former wills, be cancelled or de- stroyed, the preponderance of American opinion is that the former ■will is not thereby revived, in default at all events, of affirmative evidence that the testator so intended.* But in the absence of stat- ute direction, the courts ti-eat the question of revival as one of in- tent, to be gathered from all the circumstances.^ ing to a head as an active will, which it could do only by surviving its maker. " Being the last expression of the decedent and at the same time practically inconsistent with the prior one, the intent to repeal the first by it was to be implied. In case, however, of its being recalled by the testator in his lifetime, it could not, on the theory referred to, be taken to have the eflf'ect to do away with its predecessor." 45 Mich. 241. See also Cheever v. North, 106 Mich. 391, 58 Am. St. Rep. 499, 37 L. R. A. 561, 64 N. W. 455. This isame difetinction is expressed in Peck's Appeal, 50 Conn. 562, 47 Am. Rep. 685, and semble enforced by com- parison with James v. Marvin, 3 Conn. 576. This rather fanciful idea is derived from Lord Mansfield in Goodright v. Glazier, 4 Burr. 2512. But in that same English case, Mr. Justice Yates puts the principle thus: The first will revives or holds good, because the revocation of it by the second will was itself revocable, and the testator has revoked the revoca- tion by cancelling the second will. Ooodright v. Glazier, ib. And see Bates V. Hacking, 58 A. 622, 28 R. I. 523 ; Stetson v. Stetson, 66 N. E. 262, 200 111. 601, 61 L. R. A. 258 (stat- ute) ; Blaekett v. Ziegler, 133 N. W. 901, 153 Iowa, 344 (no revival im- plied ) ; Osburn v. Rochester Trust Co., 131 N. Y. S. 859 (destroying a codicil which contained only a speci- fic legacy). 8. Pickens v. Davis, 134 Mass. 252, and cases cited. Oral declarations made after cancelling the later will are admissible to show whether the testator meant thereby to revive his earlier and still uncancelled one. Ib. ; § 403; Hawes v. Nicholas, 72 Tex. 481. 9. In Colvin v. Warford, 20 Md. 357, 391, the court appears to have held that the cancellation of a revok- ing will is prima facie evidence of an intention to revive the previous will, but the presumption may be rebutted by evidence of the attending circum- stances and probable motives of the testator. The rule of the English ecclesiastical courts points, however, the other way, as our text indicates, or else to a non-presumption. See 1 Wms. Exrs. 179. The intention to revive the first will when cancelling the second, is indeed open to proof, and even to oral proof; but the bare fact that the first will was not de- stroyed, while the second was, aff"ords no sufficient proof, especially if the s.econd will contained a clause of ex- press revocation. 517 § 415 LAW OF WILLS. [part IV. On the other hand, there are a few States in which Lord Mans- field's rule has been upheld; so that the earlier will revives upon cancellation of the later one.^ " The clause of revocation," ob- serves Allen, J., in a learned exposi- tion of this subject, '" is not neces- sarily testamentary in its character. It might as well be executed as a separate instrument. The fact that it is inserted in a will does not nec- essarily show that the testator in- tended that it should be dependent on the continuance in force of all the other provisions by which his prop- erty is disposed of. It is more rea- sonable and natural to assume that such revocatory clause shows em- phatically and conclusively that he has abandoned his former intentions, and substituted therefor a new dis- position of his property, which for the present, and unless again modi- fied, shall stand as representing his wishes upon the subject. But when the new plan is in its turn aban- doned, and such abandonment is shown by a cancellation of the later will, it by no means follows that his mind reverts to the original scheme. In point of fact, we believe that this would comparatively seldom be found to be true. It is only by an artifi- cial presumption, created originally for the purpose of preventing intes- tacy, tliat such a rule of law has ever been held. It does not correctly rep- resent the actual operation of the minds of testators in the majority of instances. Tlie wisdom which has come from experience in England and in this country, seems to point the other way." 134 Mass. 2r,€,. But actual intent controls, if clear. Whvre a testator executes a second will, supposing at the time that the first will was lost, and he subse- quently finds the first and destroys the second, declaring that he prefers the first, these circumstances estab- lish his intention. Marsh v. Marsh, 3 Jones L. 77, 64 Am. Dec. 598. Where one destroys his later will with the distinct purpose of making another one, this does not revive an earlier one found among his papers, no third will, in fact, having been made. McClure v. McClure, 86 Tenn. 173, 6 S. W. 44. And if a testator after holding three wills in suspense, each contain- ing its revoking clause, and each properly executed, decides to keep the second and destroy the other two, and acts accordingly, the second will should be admitted to probate. Wil- liams V. Williams, 142 Mass. 515, 8 N. E. 424. 1. Taylor v. Taylor. 2 Xott & McC. 482; Randall v. Beatty, 31 N. J. Eq. 643 (case of express revocation). As to second wills not expressly re- voking, tins doctrine finds approval in Peck's Appeal. 50 Conn. 662, supra, which construes a local stat- ute. See further upon this subject of controversy, Danley v. Jefferson, 150 Mich. 590, 114 N W. 470 (intent of testator to revive disregarded) : Noon's Will, 91 N. W. 670, 115 Wis. 299, 95 Am. St. Rep. 944; Gould's Will, 47 A. 1082, 72 Vt. 316; Kern v. Kern, 55 N. E. 1004, 154 Ind. 29; Lane v. Hill, 44 A. 393, 68 N. H. 275, 73 Am. St. Rep. 591. 518 CHAP. I.] KEVOCATION OF WILLS. § 417 § 416. Reference of Codicil to Either of Two Wills. Although a later and inconsistent will repeals a prior one with- out a revoking clause, it does not preclude a testator by appropriate writing from reinstating the former one in a contingency. Thus, where the testator has preserved two such wills, he may make a still later codicil, while uncertain which of these two ought to take effect as his will, meaning such codicil, however, to attach to the earlier will in one alternative and to the later one in the other; and supposing the codicil to express this intention clearly and properly, no artificial rules of revocation can deprive the intention of legal effect.^ A revocation may be conditional or dependent' § 417. Express Revocation by Later Will, etc. We are now brought to consider the express revocation of an earlier will by words or a clause contained in the later one. This, as already shown, furnishes a more prompt and positive mode of repealing than simply to provide differently by the new will and trust to inferences. Indeed, no well-drawn testament omits at the present day a clause of revocation in such a case, whether ex- pressed so as absolutely to revoke all wills made by the testator at any former time, or in a partial sense, as where a codicil revokes the former will so far as inconsistent therewith, and in other re- spects ratifies and confirms it.* Words and clauses of express re- vocation operate according to their obvious tenor, and strengthen the proof disclosed by inconsistent provisions contained in the new will. As a rule, a general clause of revocation contained in the later will operates as expressed, namely, so as to revoke all prior testa- mentary acts of the testator.^ But if the later will appears on its face to have subserved some purpose which fails, or to have 2. Bradish v. McClellan, 100 Penn. 5. In an extreme case this effect St 607. appears to have been restrained by 3. 71 N. E. 384, 210 111. 404; next proof that the testator had not in- section; Williams v. Williams, 142 tended it to apply to a particular Mass. 515. paper. 1 Wms. Exrs. 16, 186. 4. See forms in Appendix, post. 519 § 418 LAW OF WILLS. [part IV. proceeded upon a false assumption of facts, the new disposition failing, the expi-ess revocation is carried down with it, on the theory that the testator intended the vocation clause as an in- gredient of the new will and not to operate independently of it.^ So, too, a declaration of intention to revoke in the future, or con- tingently, or with whatever shows a wavering, deliberative, or un- settled purpose in the testator's mind, cannot be deemed a present express revocation.'' And it is laid down as a canon of construc- tion that what is once clearly given must be clearly taken away or cut down, in order to be effectually taken away or cut down at all.^ Whether an express clause of revocation shall operate totally or partially, or whether it is imperative or the reverse, is a question of construction, and often a nice one, to be gathered from a study of all the instruments concerned, with a view of discovering the testator's intention.^ § 418. The Same Subject. The effect of writings not testamentary whose purport is to re- voke will presently appear. But in order to make the revocation clause operate which a new will contains, the will itself should be properly executed according to the statute requirements ; ^ and, of course, it should be the product of a free and rational mind.^ For there must exist not only testamentary capacity in such a case, but the testamentary execution ; since a testator is presumed not to 6. Onions v. Tyrer, 7 Ves. 379; 273, 35 S. W. 936; Bradhurst v. Campbell v. French, 3 Ves. 321; Field, 135 N. Y. 564, 32 N. E. 113. supra, § 410. 9. See next c; Cookson v. Han- 7. Cro. Jac. 497; 1 Wms. Exrs. cock, 2 My. & Cr. 606; Van Wert v. 183; Thomas v. Evans, 2 East, 448 Brown v. Thorndike, 15 Pick. 388 Semmes v. Semmes, 7 Harr. & J. 388 Hamilton's Estate, 74 Pcnn. St. 69 Benedict, 1 Bradf. 114; Viele v. Kee- ler, 129 N. Y. 190, 29 N. E. 78. 1. Laughton v. Atkins, 1 Pick. 543 ; Nelson v. Public Adnir. 2 Bradf. (X. Rudy V. Ulrich, 69 Penn. St. 177, 8 Y.) 210; Heise v. Heise, 31 Penn. St. Am. Rep. 238. But cf. Walcott v. 246. Oclitcrlonrr, ] Curt. 580. 2. O'Neall v. Farr, 1 Rich. SO; 8. Doe V. Hicks, 8 Bing. 479; 1 CI. Rudy v. Ulrich, 69 Penn. St. 177. 8 & F. 20; Kiver v. Oldfield, 4 De G. & Am. Rep. 238; Lyon v. Dada, 86 N. .J. 30; Bedford v. Bedford, 99 Ky. W. 946, 127 Mich. 395. 520 CHAP. I.] REVOCATION OF WILLS. § 419 have intended revoking his foi*mer will except for the purpose of substituting the later one with the clause in question. If, however, the second will be properly executed by one of suitable capacity, the clause of revocation contained therein will operate, even though the second will should fail of its intended effect by reason of the incapacity of the beneficiary named in it, or any other matter dehors the will.^ And even though the revok- ing will should make no disposition of the property disposed of by the will revoked, the clause of revocation will have its full effect * On the other hand, where the revoking will is found to be invalid on the ground of fraud or undue influence, or of mental incapacity, the clause of revocation which it contains cannot operate apart.^ § 419. Express Revocation by Other Writing. The revoking instrument above described is executed as a will, being of a testamentary character and generally a mere clause con- tained in the new testamentary disposition. Such an instrument requires probate.® But our wills acts recognize the right of ex- press revocation by some other writing, not strictly testamentary ; while under the common law, an unattested and even unsigned paper might have been set up to repeal a will, provided only the suitable, free, and rational intent was therein disclosed. But Anglo-Saxon law has long cherished the policy that a tran- saction by solemn instrument ought not to be subverted by an in- strument less solemn. And, accordingly, the same Statut-e of Frauds which ordained that devises of land should not be good unless formally signed by the testator and attested in the presence of three witnesses, provided further that devises should not be re- 3. Tupper v. Tiipper, 1 Kay & J. 4. Thompson Re, 11 Paige, 453; 665; Price v. Maxwell, 28 Penn. St. Bayley v. Bailey, 5 Cush. 345. 23; Hairston v. Hairston, 30 Miss. 5. Rudy v. Ulrich, 69 Penn. St. 276; Laughton v. Atkins, supra. And 177, 8 Am. Rep. 238; Rich v. Gilkey, see Pringle v. McPherson. 2 Brev. 73 Me. 595; Lyon v. Dada, supra. 279. An express revocation will pre- 6. Laughton v. Atkins, 1 Pick. 535; vail, even though the object of the Rudy v. Ulrich, 69 Penn. St. 177, 8 new will fails as being against public Am. Rep. 238. policy. 5 Jones Eq. 46; § 410 supra. 521 S 420 I^ATV OF WILLS. [PAET IV. voked in wi'iting save under substantially the same conditions ; so that whether by will or some other distinct writing, the sigTiature and the three witnesses were alike indispensable.'' The principle of legislation having been early adopted in the American colonies, we have only to consider the effect of revocation by informal writ- ing upon a testator's personal property ; and even here it is Ameri- can rather than English precedents that we find in point.^ § 420. The Same Subject. Unlike the devise of lands, therefore, a will of personal property alone might be revoked by an unattested, or even under circum- stances an unsigned, writing which made the intention clear ; and even where a will disposed of real and personal estate together, a similar instrument would take effect upon the gifts and bequest of personalty, though otherwise inoperative.^ To give this effect, no 7. Act 29 Car. II, c. 3, § 6. This same statute, § 22, provides that " no will in writing concerning any goods or chattels or personal es- tate shall be repealed, nor shall any clause, devise or bequest therein be altered or changed by any words, or will by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof read unto the testa- tor, and allowed by him, and proved to be so done by three witnesses at the least." See 1 Jarm. Wills, 167, 168. 8. 1 Jarm. Wills. 167, 168. The provision of § 22 of the above state- ute was not so generally incorporated in American legislation as that of § C>. Wliorc it appears to have been the tontator's intention tliat all after- acquired property shall pass by his will, hi.s conveyance of all the estate previously devised, by a trust deed. not attested by a sufficient number of witnesses to give it a testamentary character, but containing a power of revocation which is subsequently ex- ercised so that the title revests in the testator, does not operate as a revo- cation of the will; and upon the re- vesting of the title in the testator, the estate is subject to the will, as before, and the interest of the dev- isees exists as if no conveyance had been made. Morey v. Hoitt, 63 N. H. 507, 3 A. 636, 56 Am. Rep. 53S; 63 N. Y. S. 544. And see § 427 post. 9. Brown v. Thorndike, 15 Pick. 388. See §§ 252, 253 supra. Where the local law requires an ex- ])ress revocation of real estate to be formally witnessed like a will but not a revocation of personal property, it may liappen that the testator has dis- posed of both real and personal prop- erty by a will duly attested, and then by an unattested writing purports to revoke his will utterly. TIere tlie situa- 22 CJIIAP, I.] REVOCATION OF WILLS. § 421 peculiar fonn of words was requisite. The testator might in some couveuient part, usually at the foot of the original will, write " this will is hereby cancelled," or " this will is invalid," and if he signed it, so much the better.^ A single word written on the will which manifests an intention to annul it, so courts have ruled, effects a repeal.^ Partial revocation, too, may be manifested by writing, suitable words across or against the legacy to be cancelled.^ And ever}' paper in the fonn of a will, but not properly executed as such, has been sometimes treated as sufficient for an express revo- cation, consistently with the local statute concerning devises of land ; * though, properly speaking, that which fails as a will from imperfect execution, ought not to operate separately in its revok- ing clause when intended as a will.^ § 421. The Same Subject. It is of course well settled that the declaration of an intent to re- voke by some future act amounts to no actual revocation.® But the tioii of his property at the time of L. R. A. 654. To write " obsolete " such revocation is well inquired into, on the margin of the will is not with the aid, if need be, of evidence enough. 2 W. & S. 455. extrinsic to the will itself. For a will For instances in which a writing refers to the condition of one's prop- neither signed nor attested may re- erty when it was made, while a revo- voke, see Clark v. Ehorn, 2 Murph. nation made long after operates upon 235; Glasscock v. Smither, 1 Call the property then to be aflfeoted, 479. which may be very different in 2. Evans's Appeal, 58 Penn. St. amount and character. Should it 238; 1 Dem. (N. Y.) 484. prove that when the revocation was 3. See supra, § 397. wrritten the testator no longer owned 4. Clark v. Ehorn, 2 Murph. 235 real estate, any writing sufficient to 5. See supra, § 418; Glasscock v revoke a will of personal property Smither, i Call 479; Laughton v. At alone would revoke completely. Brown kins, 1 Pick. 535, 543; Heise v, V. Thorndike, 15 Pick. 388. Heise, 31 Penn. St. 246; Reese v 1. Warner v. Warner, 37 Vt. 356; Court of Probate, 9 R. I. 434; Stick Johnson v. Brailsford, 2 Nott & McC. ney v. Hammond. 138 Mass. 116. 272, 10 Am. Dec. 601; Semmes v. 6. Cro. Jac. 497; Thomas v. Evans, Semmes, 7 Harr. & J. 388; Witter v. 2 East, 487; Brown v. Thorndike. 15 Mott, 2 Conn. 67, 66 S. W. 1127, 108 Pick. 388; supra. § 417. Thus an in- Tenn. 334, 91 Am. St. Rep. 751, 56 dorsement on a will which indicates 523 § 422 LAW OF WILLS. [PAET IV. terms of any writing which imports a revocation should be con- strued according to its obvious intent and the subject-matter rather than the strict phraseology in which it is couched ; hence hypothe- tical words in such instruments may well consist* with the idea that a new will is proposed, and yet that the writing in question shall operate notwithstanding as an actual and present revocation without waiting for it.^ If an instrument is to take effect only on the happening of an event which does not transpire, it cannot re- voke a will already executed and existing.^ § 422. The Same Subject: Latest Legislation. But under the latest legislation, English and American, these in- formal, unattested writings which purport to revoke are generally abolished. As public opinion in both countries has advanced to the requirement that all wills without distinction of the property to which they relate shall be regularly and uniformly signed and attested, so has the disposition grown to admit of no express revo- cation by writings less solemn. Upon this newly extended rule of policy rest the modem Statute of Victoria and most local enact- ments in the United States now in force.® Revocation under such the purpose to alter or modify it at may not an express revocation thus a future day, is no revocation. Ray qualified, and not strictly dependent V. Walton, 1 A. K. Marsh 71. upon some future act of revocation, 7. Brown v. Thorndike, 15 Pick, be good? , , 388, 408. Here the testator wrote on 8. Hamilton's Estate, 74 Penn. St. his will: " It is my intention at some 69; 69 Penn. St. 177, 8 Am. Rep. 238. future time to alter the tenor of the See further, Bates v. Hacking, 28 above will, or rather to make an- R. I. 523; 125 Am. St. Rep. 759, 14 other will; therefore, be it known, if L. R. A. (N. S.) 937, 68 A. 622; I should die before another will is Hibbard v. Tra.sk, 67 N. E. 179, 160 made, I desire that the foregoing be Ind. 498. considered as revoked and of no ef- 9. See Act 1 Vict. c. 26, § 20; Ap- fect." This was held to constitute pcndix. Many American statutes re- a present revocation, and not the quire in such case " some other writ- dejlaration of an intent to revoke by ing signed, attested, and subscribed Home future act. But qu. was it not in the same manner that is required ralFifr a revocation to operate con- in the case of a will." See Noyes's tingf-ntly or upon a condition subse- Will, 61 Vt. 14, 17 A. 743. qiiciit which took actual efl'ect; and 524 CHAP. I.] KEVOCATION OF WILLS. 422 statutes maj b© by express writing testamentary or not testa- mentary; but in either case and with reference to real and per- sonal property alike, the instrument must be executed with the fonnalities prescribed for a will ; it must be signed by the testator and attested by a stated number of witnesses. The mere prepara- tion of a new will because of dissatisfaction with the former one, can under such a policy operate no revocation, where the testator died before the new will could be executed.^ A notable consequence of such legislation is, that signed and attested writings which expressly revoke are in some instances wills, requiring probate as such ; and in others, writings which are no wills, nor admissible to probate; the line of distinction, how- ever, being sometimes difficult to trace.^ Sample words of repeal and cancellation written upon a will may still have the force of an express revocation as formerly ; not, however, unless signed and attested as the local statute directs.^ 1. Voorhis's Will, 90 N. Y. 668. See 101 N. W. 144, 125 Iowa, 424; Castens v. Murray, 50 S. E. 131, 122 Ga. 396; lOO N. Y. S. 344; 77 N. E. 446, 221 111. 252; Bruce v. Sieria, 57 So. 709 (Ala. code) ; Peirce's Estate, 115 P. 835, 63 Wash. 437 (incapac- ity of devisee to take not essential) ; Hoitt V. Hoitt, 63 N. H. 475, 3 A. 604; Aldrich v. Aldrich, 102 N. E. 487, 215 Mass. 164. 2. Lord Penzance found this diffi- culty when construing 1 Vict, c 26, in its 20th section. A testator at the foot of his will wrote a memoran- dum in effect: "This will was can- celled this day," and duly executed it in the presence of two witnesses. This, it was held, was " some writ- ing " under the statute, and not en- titled to probate as a will. Eraser's Goods, L. R. 2 P. & D. 40. But, shortly before, Lord Penzance had dubiously admitted to probate a simi- 52, lar memorandum, duly executed as a will, which added the words " and as yet I have made no other " [will]. Hicks's Goods, L. R. 1 P. & D. 683. Here the memorandum did more than to revoke; and his lordship distin- guished between (1) a will or codi- cil and (2) '"some writing," the for- mer of which alone admitted of pro- bate. See also Rudy v. Ulrich, 69 Penn. St. 177, 8 Am. Rep. 238, which pur- sues a like distinction; supra, § 296. 3. Gugel V. Vollmar, 1 Dem. (N. Y. ) 484. Here the attempt was to revoke part of the will. In a late English case, under the Act of Vic- toria, a codicil was considered re- voked by erasure and a writing signed by the testator and two wit- nesses to the effect that they had witnessed the erasure. Gosling's Goods, 11 P. D. 79. In certain States where holograph wills are favored au § 424 LAW OF WILLS. [PART IV. § 423. Evidence under a Written Revocation. A written revocation, under our usual local statutes, requires now the same kind and measure of evidence as the probate of a will requires.* Parol evidence of an intention to revoke or changa one's will has been admitted in ca&es where the papers themselves left the point in doubt.^ And if it be uncertain from the face of the instruments whether substitution was intended or something additional by way of gift, the testator's purpose may be cleared by evidence aliunde.^ But, in general, parol evidence of intent is not admissible unless there is such doubt and ambiguity on the face of the papers as requires extrinsic evidence to explain them.^ § 423a. Miscellaneous Instruments Considered. A will is not revoked, of course, by a subsequent instrument which was intended to confinn it ; as for example, by a French do- nation inter vivos, which although adding in effect no strength to the testamentary disposition was intended to assure it.^ Nor does a power of attorney revoke a will.^ § 424. Revocation by Inference of Law; Effect of subsequent Marriage. Finally, as to revocation of a will by inference of law. The most striking instance under this head is afforded by the marriage of the testator. If a woman makes a will and afterwards marries, her will is revoked by force of the marriage. This has been the time-honored rule of the common law ; resting not upon mere pre- sumption, but upon the material change which marriage works in attested will not written by the tes- 7. Thorne v. Rooke, 2 Curt. 799. tator may be revoked by his hole- See as to ambiguities Part VI. post. graphic codicil. 78 Cal. 477, 21 P. 8. 8. Aubert'a Appeal, 109 Penn. St. 4. Noyes's Will, 61 Vt. 14. Sec 447, 1 A. 336. also Burns v. Travis, 117 Ind. 44, 18 9. 89 P. 985, 5 Cal. App. 161. Cf. N. E. 4.5. OfTut V. Divine, 21 Ky. Law Rep. 5. Jenner v. Ffinch, L. R. 5 P. D. loOO, 53 S. W. 816. 106. A presumed intention to revoke 6. Methuen v. Methucn, 2 Phillim. may be overcome by pertinent evi- 410. dence. 87 A. 577, 240 Penn. S3. 526 CHAP. I.] EEVOCATION OF WILLS. § 424 the circumstances and condition of every woman, and the new in- terests she sustains by the very act of taking a husband.^ This change of condition was doubtles^s greater under the old rules of coverture which placed the wife under her husband's protection, disabled her from disposing by will or contract without his sanc- tion, and cast her property into a mould convenient for giving the husband the chief control if not the ownership ; ^ yet, by the bet- ter opinion (though various States construe to the contrary), it operates to this very day, as a legal revocation, and justly so, de- spite the new privileges with which equity and modern legislation may have seen fit to clothe her.^ In truth, modern experience so 1. § 46; 4 Co. 60 b; Doe v. Staple, 2 T. R. 667, 695; 2 P. Wms. 624; Hodsden v. Lloyd, 2 Bro. C. C. 544; Long V. Aldred, 3 Add. 48 ; Warner V. Beach, 4 Gray, 162; Carey Re, 49 Vt. 236, 34 Am. Rep. 133. 2. Schoul. Hus. and Wife, §§ 86- 89. 3. Brown v. Clark, 77 N. Y. 369; Swan V. Hammond, 138 Mass. 45, 52 Am. Rep. 255; Blodgett v. Moore, 141 Mass. 75, 5 N. E. 470; 142 Mass. 242, 7 N. E. 720; 66 P. 710, 40 Ore. 154; Vandeveer v. Higgins, 80 N. W. 1043, 59 Neb. 333; Hiidnall v. Ham, 56 N. E. 172, 183 111. 486, 75 Am. St. Rep. 124, 48 L. R. A. 557. It is suggested that every will ought to be considered amljulatoiy ; and if a woman cannot by law revoke or make a new will during coverture, her former will made as a feme sole would be irrevocable unless the law thus revoked it for her. But this argument does not cover the whole case; for the new concession of tes- tamentary favors to the wife by mod- ern statute does not change the rule of the text. 1 Wms. Exrs. 192. In fact the doctrine has a deep founda- tion in public policy and knowledge of human nature. But in Rhode Island the marriage of a feme sole testatrix was treated (contrarj' to rule) as operating only a presumptive revocation of her will. Miller v. Phillips, 9 R. I. 141. And in New Jersey and Illinois a woman's marriage was held not to revoke her previous will. Webb v. Jones, 36 N. J. Eq. 163; Tuller Re, 79 111. 99, 22 Am. Rep. 164. See, also, Noyes v. Southworth, 55 Mich. 173, 20 N. W. 891; Fellows v. Allen. 60 N. IT. 439, 49 Am. Rep. 328; Ward's Will, 70 Wis. 251,. 5 Am. St. Rep. 174. 35 N. W. 731; Hoitt v. Hoitt, 63 N. H. 475, 56 Am. Rep. 530, 3 A. 604; Hunt's Will. 81 Me. 275, 17 A. 68; Roane V. Hollingshead. 76 M'd. 369, 35 Am. St. Rep. 438, 17 L. R. A. 592, 25 A. 307; Lyon's Will, 96 Wis. 339, 65 Am. St. Rep. 52, 71 N. W. 362, and cases cited; 70 Wis. 251, 5 Am St. Rep. 174, 35 N. W. 731; Ellis v. Dar- den, 86 Ga. 368, 11 L. R. A. 51. 12 S. E. 652; Hastings v. Day, 130 N. W. 134, 151 Iowa, 39. See, also, the line of argument pursued in Morton v Onion, 45 Vt. 145. In Carey Re, 527 § 424 LAW OF WILLS. [part IV. justifies the doctrine that marriage shall operate as a revocation, if, at all events, no antenuptial arrangement, no provision in view of the marriage has entered into such a will, that, instead of ex- empting the wife, legislation now inclines to extend the rule to the husband by way of equalizing the privileges of the sexes. And even if there be an antenuptial assent by one spouse to the other'3 will, this ought not of itself to debar the rights of offspring born, subsequently of the marriage.'' A man's will by the older policy of our law, was not revoked by his subsequent marriage at all ; ^ but late statutes in England and many American States give mar- riage that absolute effect.^ Either spouse may or may not, under 49 Vt. 236, 24 Am. Rep. 133, it is held that a woman's will of person- alty is revoked by her subsequent marriage, while her devise of real estate is not, under the Vermont stat- utes. Where our courts, under the influence of the late marital legisla- tion, treat the wife's will as not per se revoked by her marriage, their main object seems to be to put wife and husband upon an equal plane in this respect. But that effect would be accomplished by causing marriage to operate a revocation correspond- ingly of the husband's will. In various States, however, the common law rule is held with questionable liberality, to have been so changed by the statutory removal of the wife's disabilities with respect to the dis- position of her property that a woman's marriage works no revoca- tion of her will. Roane v. Holings- head, supra; Lyon's Will, supra. And see constitutional provision as to " devise," construed in Noyes v. Southworth, supra. As to the im- perfect statute expression, that the will of an "unmarried" woman shall be deemed revoked by her subsequent marriage, see 131 N. Y. 620, 15 L. R. A. 292, 60 Am. St. Rep. 664; 100 N. Y. S. 1100. See, aso. Smith v. Clem- son, 6 Houst. 171; Hibberd v. Trask, 67 N. E. 179, 160 Ind. 498. 4. Craft's Estate, 164 Penn. St. 520, 30 A. 493. And see Francis v. Marsh, 46 S. E. 573, 54 W. Va. 545. 5. As to the old law concerning revocation of a man's will by mar- riage and the birth of a child, see next section. 6. This subject is now set at rest in England by the new Statute of Wills, which enacts that " every Avill made by a man or woman shall be revoked by his or her marriage," etc. 1 Vict. c. 26, § 18; Appendix, post. See 15 P. D. Ill, 152. Among the American States whose legislation is now of the same general purport, may be mentioned Rhode Island, Pennsylvania, Virginia, West Vir- ginia, North Carolina, Connecticut, Georgia, Kentucky, Illinois and Cali- fornia. See 1 Jarm. Wills, 122, note; McAnnulty v. McAnnulty, 120 111. 26; Ellis v. Dardcn, 86 Ga. 368; 13 S. D. 335, 100 N. W. 738; 46 S. E. 573; 78 S. E. 711, 95 S. C. 118. As to 528 CHAP. I.] REVOCATION OF WILLS. § 425 such a policy, prove disabled from making a new will at pleasure ; ^ but at all events the will made before marriage fails, as ought every disposition in legal and moral derogation of new conjugal rights, which was not founded in a fair and open treaty and antenuptial settlement between the parties contemplating a marriage.* The survival of the spouse who disposed by will before or dur- ing marriage does not of itself affect the validity of such a testa- ment.^ § 425. The Same Subject: Marriage and Birth of Child. Unequally as the old common law treated husband and wife in respect to their wills, a rule, borrowed from the civilians, has for at least two centuries reduced the difference of their condition ; namely, that if the husband not only married but had a child bom to him after making his will, a revocation should be implied/ And the same rule was aftei-wards extended to marriage and the statute exception where will not re- voked was in actual contemplation of the marriage see 170 Mass. 401, 40 L. R. A. 191, 49 N. E. 623. And see Stimson Am. Stat. Law, § 2676. In Connecticut a testator married before the legislature enacted that marriage should revoke a will. He had made a will before marriage, which he told his wife he would de- stroy, but he did not do so. It was held that, inasmuch as the act should not be deemed retrospective, he had not revoked his will. Goodsell's Ap- peal, 55 Conn. 171. Contra, where the testator married after the stat- ute took effect, though his will had ■ been previously made. 170 Mass. 401, 403, supra. 7. As to the disability of a married woman in this respect, see supra, §§ 45-64. 8. Schoul. Hus. and Wife, § 348; 87 Cal. 643. 34 529 9. Clough V. Clough, 3 Myl. & K. 296; Long v. Aldred, 3 Add. 48; Trimmell v. Fell, 16 Beav. 537. See c. 3, post. 1. This rule is of modern origin, so far as English law is concerned. It is found in Inst. 1. 2, tit. 13. The first reported decision in English courts is Overbury v. Overbury (1682), 2 Show. 242; Emerson v. Bo- ville, 1 Phillim. 342, and citations. It was subsequently adopted in the common-law courts (1771) in Chris- topher V. Christopher, 4 Burr. 2171, 2181, note. See 1 Wms. Exrs. 193. The American decisions under this head are numerous. See Brush v. Wilkins, 4 Johns. Ch. 506; Warner V. Beach, 4 Gray, 163; Jacks v. Hen- derson, 1 Desaus. 543; Tomlinson v. Tomlinson, 1 Ash. 224; 4 Kent Com. 527, § 425 LAW OF WILLS. [PAET IV. birtli of a posthumous cliild.^ In applying such a rule, the eccles- iastical courts appear to have long regarded the case as one of pre- sumption merely, and subject, after all, to what, on the whole, the testator might be sho^vn to* have actually intended.^ But the com- mon law tribunals, impressed more deeply by the justice of such a policy and the analogy of the wife's condition, solemnly decided that the principle was one of legal inference, independently alto- gether of what the party himself might have intended.* Modem legislation robs this topic of its former prominence in the law of testamentary revocation.^ But as various States still adhere to the conjugal distinction, we may briefly observe one or two salient points of this doctrine. Marriage alone, or the birth of a child alone, did not operate to revoke the testator's will ; both conditions must have succeeded his act of disposition ; and hence the birth of his posthumous child was held by the common law courts not to repeal a will made by the husband during marriage.^ Here, however, the ecclesiastical rule of regarding one's intention had its advantage ; for other circumstances might afford a handle 2 1 Wms. Exrs. 193 ; 1 Jarm. Wills, ancy now disappears under the Stat- 123; 4 Kent Com. 522; Doe v. Lan- u*e of Victoria, wherever that stat- cashire, 5 T. R. 49; Hart v. Hart, 70 iite operates. See, further, Israeli Ga. 764; 11 Phila. 110. v Eodon, 2 Moore P. C. 51. 3. Wms. Exrs. 194; 1 Phillim. 473; 5. Supra, § 424. But the legisla- 1 Hagg. 711. tive change must be an explicit one 4. Marston v. Fox, 8 Ad. & E. 14, in order to take effect. The common which all the judges of England as- law rule, that there must be marriage sembled to decide, Lord Denman being and the birth of issue, in order to re- absent. This was a case of real es- vokc, is not sufficiently abrogated by tate; and it may partially explain statutes which enlarge the wife's the contradictory opinions held by right to inherit from her husband. spiritual and temporal judges on this Hulett's Estate, 66 Minn. 327. 69 X. point, that the Statute of Frauds W. 31, 101 N. W. 144, 125 Iowa. 424. excluded parol evidence of intent .'is 6. Wellington v. Wellington. 4 much as possible where devises were Uurr. 2171 ; Doe v. Barford. 4 M. & concerned; while wills of personal Sel. 10; 4 Kent Com. 523, and cases property (those with which the spir- cited; Yerby v. Yerby, 3 Call. 357; itiial courts dealt) were quite unen- Havens v. Van Den Burgh, 1 Denio, fumhered with such provisions. 1 27. Wms. Exrs. 196. All this discrep- 530 CHAP. I.] REVOCATION OF WILLS. § 42G for inferring that a revocation was really meant;' nor did such courts positively assert that a marriage subsequent to the will was in every case indispensable.* Whether the order of events, marriage and birth, is here of ma- terial consequence, the cases do not clearly decide.^ But at all events, the rule of revocation would apply all the same, whether the testator who re-married was a widower when he executed the will in question, with children by a former wife for whom the will had provided, or an unmarried man, so far as his personal estate was concerned.^ And we should remember that revocation of a will, under any such circumstances, could work no greater hard- ship than to bring about a descent and distribution of the estate under the just and politic rules which the law prescribed for in- testacy.^ § 426. The Same Subject. But the rule of implied revocation in such cases does not operate where the will itself has provided for the future wife and child ;' nor, as it appears, unless the entire estate is thereby disposed of to their utter exclusion and prejudice; * neglect of a moral obligation 7. 1 Wms. Exrs. 197; 1 Jarm. the rule is satisfied by the birth of Wills, 124; Johnston v. Johnston, 1 the child subsequent to the will, by Pliillim. 147. a first wife, followed by the testator's 8. 1 Wms. Exrs. 197, 198. In re-marriage. Johnston v. Johnston, 1 Phillim. 447, 1. Havens v. Van Den Burgh, 1 Sir John Nicholl puts the moral obli- Denio, 27. As to land and the rule gation strongly as respects the birth of the " heir apparent " in England, of issue after making a will, and see Sheath v. York, 1 Ves. & B. 390. concludes that the concurrence of sub- 2. Subsequent marriage and the sequent marriage should not always birth of a child concurring, the will be considered essential. But the real became revoked; and though the difficulty seems to be that the new child should afterwards die, the will moral obligation arises when a man was not revived without some new takes a wife and before his child is act or recognition on the testator's born. part, by way of giving it effect. Emer- 9. See 1 Jarm. Wills, 124. Gib- son v. Boville, 1 Phillim. 342. bons V. Caunt, 4 Ves. 848, favors the 3. Kenebel v. Scrafton, 2 East, 530. conclusion that the order of events 4. Kenebel v. Scrafton, 2 East, makes no difference; and hence- that 541; Brady v. Cubit. Dougl. 40; 531 42 G LAW OF WILLS. [part IV. l>eing the point of inquiry, rather than what the testator had in- tended. But, as we have seen, the courts did not harmonize upon the underlying principle ; the ecclesiastical tribunals seeking, on the one hand, in the light of circumstances and the t^tator's own conduct and declarations, to interpret his purpose; courts tem- poral, on the other, pronouncing the revocation absolute, where duty compelled, regardless of one's intention,^ In this country the rule of judicial construction is greatly af- fected by loe^l statutes on this subject. 'Some States, as we have seen, make the will of man or woman absolutely revoked (as in England) by his or her marriage; ^ in others the older rule of law still prevails that no revocation of a man's will occurs without subsequent marriage and birth of a child. Whether revocation should operate, however, in this latter case as a legal pre-^umption or as a mere presumption of fact open to rebutting proof, is not positively and uniformly settled; but the local enactment guides frequently the favored conclusion.^ Children born after the mak- Marston v. Fox, 8 ^d. & El. 570. Mansfield, Ellenborough and Tindal were in accord on this point. And see 4 Kent Com. 621; Havens v. Van Den Burgh, 1 Denio, 27; Jackson v. Jackson, 2 Penn. St. 212. 5. 8upra: § 425; Marston v. Fox, 8 Ad. & El. 14; Fox v. Marston, 1 Curt. 494. But the preceding note indicates that temporal courts were reluctant to enforce their own sweep- ing rule of revocation unless the breach of duty was positive. 6. fiupra, § 424. 7. See the various statutes, those of New York and Alabama, for in- stance; wliile some States appear to follow the rule still on common law principles. The Georgia statute speaks of marriage or the birth of a child as revoking 10 Ca. 79; Deu- j)r('e V. Deupree, 45 TJa. 415. Varions otiier local peculiarities are notice- able. Thus, the New York code makes the case one where a will disposes of the whole estate; subsequent mar- riage and birth of a child follows, and the wife or issue survives the testator. If the will shows an inten- tion not to make any provisions, re- vocation is avoided. 2 N. Y. Rev. Stats. 64, § 43; 4 Kent Com. 526, 527. In Virginia and Kentucky a child born after the will, if the testa- tor had no children before, revokes, unless such child dies unmarried or an infant; but if one had children be- fore, the after-born children, unpro- vided for, work only a revocation pro tanto. 4 Kent Com. 526. Mar- riage and the birth of a posthumous child revokes. Belton v. Summer, 31 Fla. 139. For the rnlos of variotis States. se,e Edwards's Appeal, 47 Penn. St. 144; Morse v. Morse, 42 Ind. 365; Negus 32 CHAP. I.] EEVOCATIOX OF WILLS. § 420 ing of a will, posthumous or otherwise, are found the subject of ■still broader euactmcnts, as for instance in most of the 'New Eng- land and Middle States, Ohio and Indiana ;' but, on the whole, the policy of such statutes is only to revoke the will so far as to let them in, when otherwise improvided for, to the share which would have fallen to them in case the father had died inte^tate.^ Many Ameri- can codes go still further, and supply the same relief to all chil- dren and their legal representatives for whom the paternal will makes no provision, and who have had no advancement during the parent's life, unless the omission is shown to have been inten- tional.^ Under legislation like this last, intention and not moral obligation becomes plainly the ultimate criterion; and parol evi- dence may explain whether a child was omitted intentionally or through inadvertence.^ Where under local statute a subsequent V. Negus, 46 Iowa, 487, 26 Am. Rep. 157; 1 Jarm. Wills, 129, American note. An expression of confidence in one's will that the child to be born Avill be reared honorably by the testa- tor's wife does not prevent the legal revocation from operating. Walker V. Walker, 34 Penn. St. 483. Under the Iowa statute the birth and recog- nition of an illegitimate child revokes a will previously executed. Milburn V. Milburn, 60 Iowa, 411. But cf. Kent V. Barker, 2 Gray, 535. The mere marriage of the testator does not revoke under the Texas statute. Morgan v. Davenport, 60 Tex. 230, 7 L. R. A. 485, 23 N. E. 860. A Pennsylvania statute of 1833 renders a man's will made before marriage inoperative either as to the wife or the after-born children not provided for; thus establishing only partial in- testacy in either case. 121 Penn. St. 1. In short, statute expressions vary BO greatly in America, that it seems impossible to extract from our cases a uniform doctrine. 8. This provision is an absolute one, as such statutes are commonly worded, and the revocation is pro tanto, at least, regardless of what the testator may have intended. Wa- terman V. Hawkins, 63 Me. 156; Knotts V. Stearns, 91 U. S. 638, 23 L. Ed. 252; supra, § 20. But if the will discloses, without the aid of extrinsic evidence, an intention not to provide, some of these acts appear to avoid a legal revocation. See, also, Coudert v. Coudert, 43 N. J. Eq. 407, 5 A. 722; Rhodes v. Weldy, 46 Ohio, 234, 15 Am. St. Rep. 584, 20 N. E. 461; Ward v. Ward, 120 111. 111. 9. Supra, § 20. As to an adopted child, see 89 N. C. 441; Davis v. Fogle, 124 Ind. 41, 7 L. R. A. 485, 23 N. E. 860. 1. Parol evidence is admissible to show whether the omission was in- tentional or not; the right being re- served to a parent to disinherit his own offspring at discretion. Bancroft 33 § 42 Ga LAW OF WILLS. [part IV. marriage revokes the will, revocation is doubly fortified by the birth of offspring of that marriage.^ § 426a. Effect of Full Divorce. \Miere there is a complete and not merely a partial divorce of the married parties, and their reciprocal property rights are fixed, they become strangers to each other and neither owes the other any lurther duty. The natural presumption arising from these changed relations would therefore seem to imply in law the revocation of any existing will of either spouse made in favor of the other. Such is the rule sometimes asserted,^ though decisions point occa- sionally in the opposite direction,* and something may fairly de- pend upon the actual character of the disposition and the cause of divorce.^ V. Ives, 3 Gray, 367; Wilder v. Thayer, 97 Mass. 439; Lorings v. Marsh, 6 Wall. 337, 18 L. Ed. 802. The intention is sometimes shown by the will itself. Prentiss v. Prentiss, 11 Allen, 47. But the burden of proof is upon those who set up an inten- tional omission. Ramsdill v. Went- worth, 106 Mass. 320. The later ac- quisition by the testator of addi- tional property aflfords no reason for not applying the usual rule that sub- sequent marriage with birth of a child revokes. Baldwin v. Spriggs, 65 Md. 373, 4 A. 410. An antenuptial provision, under a settlement, in favor of wife and fu- ture issue may prevent that revoca- tion which the statute imports. Gay V. Gay, 84 Ala. 38; supra, § 424. And as to non-revocation by marriage alone, where a will made before mar- riage expressly provided for tlic in- tended wife, see Fidelity Trust Co.'s Appeal, 121 Penn. St. 1. lender the West Virginia code, where a married woman, having no children, devises all her estate to licr n husband, and afterwards has issuo who survive her, the will does not take full effect. Cunningham v. Cun- ningham, 30 W. Va. 599, 5 S. E. 139. As to declarations of a testator on the point of such legal revocation, see siip)-a, § 403. 2. See Craft's Estate, 164 Penn. St. 520, 30 A. 493. And see, further, 58 A. 846, 209 Penn. 456, 68 L. R. A. 464; Easter- lin v. Easterlin, 56 So. 688 (Fla.); Lally's Will, 92 N. E. 1089, 198 N. Y. 608; Wood v. Tredway, 69 S. E. 445, 111 Va. 526; Planner v. Plan- ner, 75 S. E. 936, 169 N. C. 126; GO So. 318, 43 L. R. A. (N. S.) 1195. 3. Lansing v. Haynes, 95 Mich. 13, 54 N. W. 699, 35 Am. St. Rop. 505; Wirth v. Wirth, 149 Mich. 687, 113 N. W. 306. 4. Charlton v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307; Baacke v. Baacke, 50 Neb. 18, 23. 5. See Jones's Estate, 60 A. 915, 211 Penn. 364, 69 L. R. A. 940, 107 Am. St. Rep. 58L 34 CHAP. I.] EEVOCATION OF WILLS. 427 § 427. Other Cases of Revocation; Revocation Implied by Law; Alteration of Estate, etc. The books state other cases of revocation implied by law ; not, however, without a vague extension of the word " revocation " be- yond that genuine repeal of a testamentary instrument to which it is more properly confined.® Alteration of one's estate is particu- larly dwelt upon in this connection. If a will devises nothing but a particular piece of land, and the testator afterward sells that land, a revocation of the devise may be implied ; and so if a testa- ment simply bequeaths specific chattels which are otherwise dis- posed of during one's life, there remains, at all events, nothing for his will to operate upon.'' But one's estate may over and over 6. 1 Jarm. Wills, 147 et seq., where a chapter is devoted to " revocation by alteration of estate," with a con- siderable exposition of the old law on this subject. Notwithstanding the provisions of the Statute of Frauds on the subject of revocation, it has been held that a will may be revoked by implication or inference of law. "Among these implied revocations is any act of the testator which alters the estate or interest held by him in the lands de- vised at the date of the will; as for instance, a conveyance of the same, or a valid contract to do so. The will takes effect only at the death of the testator. Real property acquired after making the will goes to the heir. (But see supra, §§ 28, 29.) If, there- fore, the testator is not seized at the time of his death, of the same estate or interest in the premises that he was at the time of making his will, the same does not pass by the devise, but goes to the heir. This is held either upon the ground that the al- teration of the estate is evidence of a change of purpose on the part of the r.ft testator, or more properly, that it works a revocation of the will by de- priving the testator of the estate de- vised, and thus leaves nothing for the will to operate upon at his death." Coulson v. Holmes, 5 Sawyer, C. C. 282, per Deady, J.; Walton v. Wal- ton, 7 Johns. Ch. 268;' Henington v. Budd, 5 Denio, 322 ; Bosley v. Boslcy, 14 How, 395; Ballard v. Carter, 5 Pick. 116; Kean's Will, 5 Dana, 25; 4 Kent Cora. 528; 2 Greenl. Ev. § 686; 1 Jarm. Wills. 147-149, and Eng- lish cases cited. Cf. Prater v. Whit- tle, 16 S. C. 40. 7. A deed or conveyance of all the property given by the will is revoca- tion of the will and may be pleaded. Epps v. Dean, 28 Ga. 533; Bowen v. Johnson. 6 Ind. 110, 61 Am. Dec. 110. If sucli deed was duly executed and delivered, it matters not that it wa" not recorded while the testator lived. Collup V. Smith, 89 Va. 258, 15 S. E. 584. But the execution of a contract to sell the land devised for a nominal sum is no revocation. 100 Wis. 192, 75 N. W. 971. See Conn. Trust Co. v. Chase, 55 A. 171, 75 Conn. 683; § 427 LAW OF WILLS. [PAET IV. again change in value and specific character between the date of executing it and his death. The proportions as between various beneficiaries may greatly change beyond what he had intended; he may part with this piece of property and acquire that ; ^ one ob- ject of his bounty may die and another may come into existence ; he may even die so involved in debt or utterly bankrupt as in effect to annihilate the gifts which his own testament professes to be- stow.^ All this, however, does not, at our day, revoke in any such sense as to set the instrument itself practically aside in whole or in part or disentitle it to probate. The testator's appointment of executor still takes effect; his scheme of disposition is not super- seded in form; only it becomes a matter of practical administra- tion, assisted by legal construction of the will, to determine how far and in what proportions his gifts may have failed, if they fail at all, under his unrevoked testament. For those principles of construction, search should be made under a different heading fro'm the present. 125 Mich. 357, 84 N. W. 293; Ben- son's Estate, 58 A. 135, 209 Penn. 108; Templeton v. Butler, 94 N. W. 306, 117 Wis. 445 (revocable cer- tificate) ; Ostrander v. Davis, 191 F. 158; Watson v. McLenck, 110 P. 482, 57 Ore. 446. If the gift by the will is general and not specific, it necessarily fails if there be no such general property. This, however, would not be readily ascertainable until the estate was settled; and as preliminary to a set- tlement, the will semble, if there be one, ought to be admitted to probate. See Morey v. Sohier, 63 N. H. 507, 56 Am. Rep. 538, 3 A. 636. A par- ticular bequest may be practically re- voked by a contract inconsistent with it. Walker v. Steers, 14 N. Y. Supr. 39S. A simulated tran.sfcr of the prop- erty bequeathed should not carry a 5-' revocation of the legacy; for the in- tent of the testator is thus shown to have been not to revoke. Blakemore's Succession, 43 La. Ann. 845. See as to ademption, etc.. Vol. II. § 1471; Spinney v. Eaton, 87 A. 378, 111 Me. 1, 46 L. R. A. (N. S.) 535; 143 N. Y. S. 546; May v. Sherrard, 79 S. E. 1026, 115 Va. 617. 8. See supra, §§ 28, 29. 9. No matter how long a man maj' live after making his testament, even though he should become insane; or how much his wealth and substance may increase or diminish; or what objects of his bounty and afi"ection may die before him; no legal infer- ence arises, nor even a presumption of fact, that he has revoked his will. 1 Wms. Exrs. 187, 188; Swinb. pt. 7,. § 15, pi. 2; Doe v. Edlin, 4 Ad. & El. 582; Warner v. Beach, 4 Gray, 162. 6 CHAP. I.] KEVOCATION OF WILLS. § 427* In short, revocation of a particular will by mere inference of law or presumption is limited to a very few instances in our mod- em practice; while, on the other hand, changes in the condition of the testator's affairs or through the mortal chances to which both he and his beneficiaries are exposed, may work out a very different settlement and distribution of his estate after his death from what the will purported to arrange. Modem legislation itself repudi- ates in England and some of our States the whole theory of a pre- sumed intention to revoke on the ground of an alteration in cir- cumstances ; ^ and what is left of that theory, aside from such, statutes, it would be very difficult to say.^ § 427a. Mental Incapacity, Fraud, Force and Error, in issues of Revocation. It is readily to be inferred from what has been said, that revoca- tion of a will, like any testamentary disposition, is open to im- peachment, in the usual manner, for mental incapacity, or be- cause the exertion of undue influence, fraud, or force upon the tes- tator induced the act.^ Even error on the testator's part may be 1. Act 1 Vict. c. 26, § 19; Appen- made; nor by the concurrence of all dix, post; 4 Kent Com. 532, 533; these circumstances. Hoitt v. Hoitt, Stimson Am. Stat. Law, § 2676. A 63 N. H. 475, 20 Am. Rep. 55. The will in the nature of an appointment law applicable to the testamentary of a fund is not revoked by the testa- disposition of property — with its in- tor's subsequent assent to the diver- ferences as to an intent to pass after- sion of that fund. Clements v. Horn, acquired property (supra, § 29) has 44 N. J. Eq. 595, 18 A. 7. And see been so far modified in these later Burnham v. Comfort, 108 N. Y. 535, times as to leave instances of a total 2 Am. St. Rep. 462, 15 N. E. 710; revocation under this section by im- 142 Mo. 244, 64 Am. St. Rep. 560. plication of law almost impossible. 2. See Shaw, C. J., in Warner v. See Morey v. Sohier, 63 N. H. 507, Beach, 4 Gray, 163. A will is not re- 512. And see Baacke v. Baacke, 50 voked by the death of the legatees or Neb. 18, 69 N. W. 303; Woodward v. devisees named in it ; nor by the alien- Woodward, 81 P. 322, 33 Col. 457; ation of the larger portion of the tes- Hospital Trust Co. v. Keith, 57 A. tator's estate which was specifically 1060, 26 R. I. 42. disposed of by his will; nor by the 3. Cf. §§ 384, 387, 395, and cases acquisition of a much greater estate cited with Part II. supra; Ross v.. than he possessed when the will was Gleason, 115 N. Y. 664, 22 N. E. 149;, 537 § 427a LAW OF WILLS. [taut IV. shown to have caused the revocation, where he expressly founds his revocation on the assumption of a fact, derived from the in- formation he has received from others, which is shown to be false ; though where the fact was peculiarly within his own knowledge, error would be unlikely.* In short, whether revocation or altera- tion be by a new will or codicil or by some oral act of cancelling or destroying, mental capacity and freedom from constraint are requisite as in making the original will.^ Graham v. Burch. 44 Minn. 33, 46 N. 321; Evans v. Evans, 10 Ad. & E. W. 148; 47 Minn. 171, 28 Am. St. 228. Rep. 339, 49 N. W. 697; 86 N. W. 5. See Gardner v. Gardner, 177 946, 127 Mich. 496. Penn. 218, 35 A. 558. 4. Mendinhall's Appeal, 124 Penn. As to wills not revocable because St. 387, 10 Am. St. Rep. 590, 16 A. of a consideration, see Part V, post. 881; Campbell v. French, 3 Ves. Jr. 538 CHAP. II.] ALTERATION OF WILLS. § 429 CHAPTER 11. ALTERATION OF WILLS. § 428. The Word " Alteration " ; Alteration of Disposition or of an Instrument; Partial Revocation, "Alteration of a will " may be understood in either of two senses: first, and more generally, that of changing one's own tes- tamentary disposition, by whatever external acts this may be ef- fected ; second, and more specifically, that of changing the face of the written testament itself by an outward act which may or may not have been performed by the testator or under his sanction. It may be convenient to treat of this subject in both senses of the phrase. But however we. may use the word " alteration," we are not to consider it as involving the idea of a total revocation of the existing will, but only a revocation 'pro tanto, if a legal revocation at all. A later will is not substituted in place of the earlier one, but there is at most a variation in the former terms, and intent must be gathered from the original will and its amendments taken together. § 429. Alteration of the Instrument to be first considered ; Testa- tor's Right to alter. Let us first consider the more specific alteration, which consists in changing externally the face of the original testament. Acts of cancelling and obliterating, as well as of spoliation, and their effect in totally revoking a will where the intent accompanies the •act, have already been discussed ; ^ and it has been observed that one could partially erase, cancel or even obliterate, a written tes- tament, under the older law, so as only to revoke the will in part, as, for instance, by annulling some particular bequest.^ Now to pursue this latter idea somewhat farther. The material alteration of a deed or contract, by one party under it without con- 1. Supra, §§ 383-396. 2. fiupra, § 397. 539 § 431 LAW OF WILLS. [PAET IV. sent of the other, avoids the instrument in an extreme case ; other- wise it leaves the estate or interest acquired as before; and the altering party is not free to modify it by his altered intention.^ But a willj having per se no element of mutuality, but resting in the testator's discretion, the maker may change it at pleasure, pro- vided the formalities of execution which the statute imposes for the better safeguard of such instruments be properly observed. And what we say here of alteration, applies not only to changes of language and expression, but to the striking out of existing words, clauses and sentences, or the interlining and inserting others. It need hardly be said that alterations and erasures made in a will before it is executed, are, when made by the testator himself or under his authority, effective, provided the fact of prior erasure or alteration appear; for the true will is the instrument as actually executed, and probate should stand accordingly.* § 430. General Right of Testator to Alter. The general right of a testator to alter, independently of enact- ments later than the Statute of Frauds, in derogation of his infor- mal exercise of discretion, has already been noticed.^ § 431. Intention should accompany; Alterations which ao not revoke. But, as in total revocation, intention should accompany the act and be fairly inferable from the manner of the alteration, in order to revoke in part. Where the testator alters certain legacies by erasing and interlining, and then acknowledges in the presence of witnesses without signing again, this is not to be pronounced a revocation, total or partial, for it was not thus intended ; but if the statute mode of execution be satisfied, the will oonforms to the 3. 11 Co. 27; Cliamberlaync Evid., whole or in part, and full revocation § 2184. or revocation pro tanto in conse- 4. Sec Lurie v. Radnit/.er. 100 111. quence. Testator is permitted thus to 009. tear away, cut, or draw his pen over 5. See §§ .301 397. antr, as to can- some particular bequest so as to re- colling, era-sing, obliterating, etc., in voke it. lb. 540 CHAP. II.] ALTERATION OF WILLS. § 431 amended scheme of disposition,^ The addition of something which is imperfect, by reason of infoimal execution and the lik?, shouhl not at all events, have the etl'ect of revoking that which was perfect, 8o as to distort the testator's real meaning.^ In all such cases the testator's obvious purpose is regarded ; and if cancelling or muti- lating was part of a transaction intended by him to operate an ex- press change of disposition, or not for the purpose of simply strik- ing out some part of the original will, the failure of this transac- tion to take full effect leaves the will as originally executed, so far at least as it remains known.^ If, again, alterations and obliterations appear to have been only cursory and deliberative, and not intended as final, the passages altered or obliterated remain in legal effect as before.* In short, alterations are considered as a whole; and where something is stricken out simply that something else may be sub- stituted, the failure of the substitution through informality in- volves the failure of the striking- out.^ 6. Wright V. Wright, 5 Ind. 389; Dixon's Appeal, 55 Penn. St. 434; Brown v. Brown, 74 S. E. 135, 91 S. C 101. A careful interlineation is not an " obliteration " within the WMll Act. Dixon's Appeal, ib. Cf. Hesterberg v. Clark, 166 111. 241, 247, 57 Am. St. Rep. 135. 46 N. E. 734, which disapproves Wright v. Wright, and requires a reattestation to fulfil the statute, where an altera- tion was not contemporaneous with the original execution. 7. Heise v. Heise, 31 Penn. St 246; 15 Penn. St. 281. Obliterations and interlineations are inoperative to change a will, if made with a view of disposing difTerently, which is not carried out. Whether the change of purpose fails because of sudden death, the want of proper attestation, or any other cause, so that the attempted disposition is invalid, the cancelling of the first being dependent thereon, is null, and leaves the will standing as before. Stover v. Kendall, 1 Coldw. 557; Youse v. Forman, 5 Bush. 337. 8. Short V. Smith, 4 East, 419; Wolf V. Bolinger, 62 111. 368; Jack- son V. Holloway, 7 Johns. 394; Sto- ver V. Kendall, supra; Linnard's Ap- peal, 93 Penn. St. 313, 39 Am. Rep. 753. But the failure of the new dis- position by incapacity of the devisee or from other reasons dehors the will would not obstruct one's act of re- vocation. §§ 410, 418, supra. 9. Parker v. Bainbridge, 3 Phillim. 321; 1 Add. 409; 1 Wms. Exrs. 143. See Safe Deposit Co. v. Thom, 83 A. 45, 117 Md. 154 (cancellation of a clause presumed incomplete, where testator tried to restore marks which he had erased, etc. ) . 1. A testator made certain eras- ures and interlineations in his duly 541 § 432 LAW OF WILLS. [part IV. § 432. Modern Legislation treats Informal Alterations with Dis- favor. All such informal alterations, however, are obnoxious to the policy of our later legislation, which prescribes for wills or per- sonalty not less than realty a formal subscription and attestation. Under many American codes, it may now be assumed that altera- tions of disposition, whether expressed on the face of the original instrument or by new writings, and especially if the change is not simply a complete erasure or destruction, require a statute execu- tion in presence of witnesses in order tO' operate.^ The English act 1 Vict. c. 26 is explicit in this respect ; at the same time permitting the testator and witnesses to sign in the margin of the original will or opposite or near the alteration, or opposite or at the end of some memorandum on the will which refers to the alteration.^ executed will. After he made the al- terations, two persons, at his re- quest, signed the will, as witnesses to '■ the erasures and interlineations made " by the testator. What these interlineations, etc., were, the wit- nesses did not know. It was held ( 1 ) that the alterations did not super- sede the provisions of the will; (2) that the witnessing of sucii altera- tions did not amount to an attesta- tion of the will as altered; and (3) that the alterations did not operate to revoke the original will. Penni- man's Will, 20 Minn. 245, 18 Am. Eep. 368. In tnis case the court dis- cussed the doctrine of ineffectual re- vocation, and rested upon the princi- ple that when part of a will is can- celled (or words, or clauses) for the j)urpose of substituting another dis- position, other words, etc., which dis- position fails through informality, no jiartial or total revocation takes place, })iit tlic will stands as origin- ally framed. For here tlio cancella- tion or obliteration was witli the idea P. of substituting; and what is relative or subsidiary cannot take effect by itself. 2. See supra, §§ 380, 397; Dixon's Appeal, 55 Penn. St. 424; Quinn v. Quinn, 1 N. Y. Supr. 437; Eschbach V. Collins, 61 Md. 478 ; Leard v. As- kew, 114 P. 251 (Okl.) 3. " No obliteration, interlineation, or other alteration made in any will, after the execution thereof, shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as here- inbefore is required for the execution of the will; but the will, witli such alteration as part thereof, shall be deemed to be duly executed if the sig- nature of the testator and the sub- scription of the witnesses be made in the margin, or on some other part of the will opposite or near to such al- teration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the 42 CHAP, n.] ALTERATION OF WILLS. § 433 The statute attestation of an original will is not the attestation of the will as altered.^ And if there is no sufficient attestation of the will as altered, the alteration (as by interlininsr or striking out and substituting) cannot take effect, but the will stands as before, valid under its previous execution/' § 433. The Same Subject: Effect of Alteration, etc., so as to render Illegible. The effect of such legislation, where the alteration by oblitera- tion or cancelling has rendered the original words of the will illegi- ble, requires further consideration. Here it may be asked whether the local statute permits of partial as well as total revocation, and whether or not the act in question amounts to a partial destruction of the will within its intendment.^ Partial revocation of a will by burning, tearing, or otherwise destroying, appears still allowable under the English statute, as before ; ^ and thus far an unattested alteration may still operate. But an obliteration or cancellation which does not wholly efface thiat part of the will and render the expunged words illegible is no longer effectual without some signing and attestation. And that alteration which consists in substituting or interlining words or clauses requires substantially the execution appropriate to wills.^ end or sOme other part of the will." should not be construed in these days Act 1 Vict. c. 26, § 21; Appendix, as effecting a revocation of the in- post. Interlineations are conse- strument. M'clntire v. Mclntire, 162 quently valid under this act, and en- U. S. 383. title the amended will to probate, 5. .Tackson v. Holloway, 7 Johns, when opposite tliem are the initials 399; Doane v. Hadlock, 42 Me. 72; of the testator and of the attesting Penniman's Will, 20 Minn. 245, 18 witnesses. 24 E. L. & Eq. 608; Am. Rep. 3&8; 37 W. Va. 38, 16 S. E. Blewitt Re, 5 P. D. 116. 40 L. Ed. 489. 1009 (alteration by some third per- 6. Supra, % 397, last c. son); Rowan's Estate, 83 A. 429, 234 7. Supra, % 397; 1 Wms. Exrs. Penn. 584 (addition of "jr." to iden- 128, 141, 143. tify a beneficiary, made by testator 8. See 1 Vict. c. 26, § 21, cited himself). supra; also ib. § 20, which requires 4. Immaterial alterations of no ef- revoking by " destroying." Under § feet in materially changing a will, 21, the alteration made in the will 543 § 434 LAW OF WILLS. [PAET IV. § 434. Probate with or without Interlineations, etc. Wlien a will duly executed is informally altered by the testator, as by interlining a new bequest without the statute attestation now required, the legal effect as not to make the will void, but to estab- lish it in probate as it stood before the change was made.* But where interlineations and alterations are made in the original will so as to conform with the existing statute, or ■are otherwise legally made, the will with its interlineations and amendments should be admitted to probate.^ If a will is altered after execution and then republished and confirmed by a codicil, it is enough to show that the alterations were made before the execution of the codicil.^ On the other hand, alterations made in a will by a stranger, after its due execution, and without the testator's knowledge or sanction, do not affect the validity of the testament in other re- after execution shall not be valid unless they prevent the words orig- inally written from being " appar- ent " ; that is to say, apparent by looking at the will. If the oblitera- tion was made simply to strike out or partially revoke, the obliteration is sufficient if it amounts to an era- sure, and the change will take effect accordingly. But where the oblitera- tion was made for the purpose of al- tering the gift, and not revoking it, and the new gift cannot take effect because the substituted words have not been properly attested as the new statute requires, evidence mny be ad- duced alivnde to show what the orig- inal words were. Soar v. Dolman, 3 Curt 121; 2 Curt. 337; Brooke v. Kent, 3 Moore P. C. 334; 1 .Tarm. 142; 1 Wms. Exrs. 144, 145. if it cannot be shown what those words wore, probate will be decreed in l>lank. 1 S. & T. 238. And see Greenwood's Goods (1892) P. 7. 9. While our later legislation quite discourages partial revocation and informal changes in an executed will, alterations, erasures, and oblitera- tions found in a will are treated ac- cording to circumstances. If they preceded the formal execution, they stand as the final expression of the testator's wishes; but if made after- wards, the alteration fails unless the will in its altered shape is duly at- tested, and probate is granted as of a. valid will, according to its import as originally attested. Schoul. Exrs. § 1084 (Vol. II); Wheeler v. Bent, 7 Pick. 61; Jackson v. Holloway. 7 John. 394; Prescott Be, 4 Redf. (N". Y.) 178; Gardiner v. Gardiner. 19 A. 651, 65 N. H. 230; Hesterberg v. Clark, 166 111. 241, 46 N. E. 734. And see Myrick Prob. 128. 1. Blewitt Re, 5 P. D. 116; supra, § 248; Ponniman's Will, 20 Minn. 245. 18 Am. Rep. 368. 2. Purge V. Hamilton. 72 Ga. 568; Tyler v Merchant Tailors' Co, 15 P. D. 216. >44 CHAP. II.] ALTERATIOISr OF WILLS. § 43; spects.^ And in general, where erasures or alterations are inform- ally made in a duly exccutGd will, the probate should be according a3 tlie will was originally executed and witnessed.* § 435. Presumption as to Time of Alterations, etc. ; Proof. The question is sometimes asked, at what time alterations in a will sihall be dated, where positive evidence is altogether wanting. Not without some controversy in the courts, it appears at length to have been settled, that unattested and unexplained alterations upon the face of a will shall be presumed to have been made after, and not before the execution of the instrument; and such is the rule a^ now announced both in England and leading American States.^ This presumption yields, however, to actual proof ; and slight circumstances, including the sense or a testator's own decla- rations of intent before executing his will, may establish the con- trary.® It is unquestionably proper that interlineations or altera- 3. Grubbs v, McDonald, 91 Penn. St. 236; 1 Gall. 70; Morrell v. Mor- rell, 7 P. D. 68; Mclntire v. Mcln- tire, 162 U. S. 383, 40 L. Ed. 1009; Diener's Estate, 67 A. 726, 80 Vt. 259; 113 N. W. 149, 79 Neb. 569, 14 L. R. A. (N. S.) 259; Safe Deposit Co. V. Thom, 83 A. 45, 117 Md. 154. 4. Simrell's Estate, 154 Penn. St. 1893, 26 A. 599. In deciding whether words oblit- erated in a will are apparent, mag- nifying glasses or artificial arrange- ment of light may be used; but not a physical interference with the docu- ment, as by water, chemicals or tear- ing off, where there is a risk of spol- iation. Finch V. Combe (1894) P. 191. See also (1899) P. 36 Watson V. Hinson, 72 N. C. 72. 5. Cooper v. Bockett, 4 Moore P. C. 419; Greville v. Tylee. 7 Moore P. C. 320; Shallcross v. Palmer, 16 Q. B. 35 5 747; 16 Q. B. 745; 1 Wms. Exrs. 130; Wetmore v. Carryl, 5 Redf. (N, Y.) 544; Dyer v. Erving, 2 Dem. (N. Y.) 160. But see Williams v. Ashton, 1 Johns. & H. 115, 118, where Wood, V. C, criticises the rule as thus stated, and intimates that the moro correct view would be, that the onus is cast on the party who seeks to de- rive an advantage from the altera- tion in the will, to adduce some evi- dence from which a jury may infer that the alteration was made before the will was executed. 6. Where the date of a will ap- peared to have been changed from 1875 to 1873, but the testator died prior to 1875, the change is pre- sumed to have been made when the will was executed. Martin v. King, 72 Ala. 354. Interlineation of a name which manifestly expresses the tes- 4f) § 436 LAW OF WILLS. [PAET IV. tions of any kind made before execution should be noted in the attestation of witnesses, and thus obviate all controversj. Where the will was originally prepared with blanks which the testator afterwards filled up, it is presumed that thej were filled as they should have been, before the attestation.'' And as all formalities are supposed to have been rightly observed, if observed at all, the mere circumstance that such blanks are filled with a different ink or in a different handwriting from the body of the will does not afford a presumption of unattested and inoperative alteration.^ § 436. Alteration in a General sense expressed by Codicil. iSTow to speak of altering one's disposition in the general sense, without confining ourselves to the physical change or mutilation of the original instrument. The natural expression of such al- teration, and, in view of late legislation, by far the safer one, is by means of a codicil or codicils duly executed like any other will ; so that the original undefaced will, together with such addition or additions, shall stand in force as one's full last testament after his death, like a statute with its later amendments.* We have already defined the codicil, whose proper office, as elsewhere inti- mated, is to add to or amend a will by way of postscript, and not to repeal it utterly.^ Such an instrument being to all intents a '' will," it is to be executed and held subject to repeal like any other testament. tator's original intention is presumed 9. Supra, §§ 7, 8. to have been made before excution. 1. lb.; Fuller v. Hooper, 2 Ves. 6 Dem. (N. Y.) 162. Sen. 242; Evans v. Evans, 17 Sim. As to the testator's declarations, 108. In ancient times " codicils " and how far they are admissible on might be made, as it appears, by this point, see Doe v. Palmer, 16 Q. those who died without testaments; B. 747; Williams v. Ashton, 1 Johns. but this was not usual; and in our & H. 115. And see supra, §§ 401- modern acceptation, the codicil is 40r5. part of a will, for its explanation or 7. Birch v. Rirch, 1 Rob. 675. alteration, or to add to or substract 8. Orovillo v. Tylee, 7 Moore P. C. from the former disposition. 1 Wms^ :J20; 2 Rob. 192; Ilindraarch's Goods, Exra. 8; Swinb. pt. 1, § 6, pi. 5, 9. L. R. 1 P. & D. 307. 646 CHAP. II.] ALTEKATION OF WILLS. § 436 § 437. Codicil does not revoke Will except so far as Necessary. Many testamentary causes arise where the effect of one or more codicils upon a prior will has to be considered ; ^ and it is a funda- mental maxim that no codicil shall revoke a prior will more than is absolutely necessary at all events to give its own provisions effect ; unless it contains an express clause of full revocation.^ The decisions which turn upon this principle are very num^-Tous and need not be stated at length ; ^ being quite prolix for the most part and involving the construction of language as variable as the de- tails of mental intention itself. Even though the codicil should profess to make a different dis- position of the whole estate, the principle above stated is the natu- ral .and controlling one.^ And words and expressions contained in the codicil may by construction restrict its operation. Thus, it is held that a declared purpose therein to alter the will in one or more stated respects, implies that it is not altered in other respects.^ And that a specific gift in a will is not revoked by a general gift in the codicil.^ And that a general expression in the codicil must be confined to its meaning in the will.^ And that a clear gift in the will is not revoked by vague or doubtful expressions in the codicil.^ And that a codicil will not operate as a revocation of a 2. Supra, § 409. 595; Holden v. Blaney, 119 Mass. 3. The testator himself commonly 421; Home v. Noble, 172 U. S. 383, produces whatever uncertainty arises 43 L. Ed. 486; McGauly v. McGauly, by framing the codicil without a clear 39 So. 677 (Ala.) ; Williams v. idea of what his previous will con- Miles, 94 N. W. 705, 68 Neb. 463; tained. See 1 Jarra. 176. Lane v. Hill, 44 A. 393, 68 N. H. 4. 1 Jarm. Wills, 176, and cases 275, 73 Am. St. Rep. 59'l; Rowan's cited; Duffield v. Duffield, 3 Bligh. N. Estate, 83 A. 429, 234 Penn. 584. S. 261; Beckett v. Harden, 4 M. & 5. Harwood v. Goodright, Cowp. Sel. 1; Evans v. Evans, 17 Sim. 86 Tilden v. Tilden, 13 Gray, 103, 108 Wetmore v. Parker, 52 N. Y. 450 Lemage v. Goodban, L. R. 1 P. D. 57 87; 14 Beav. 583. 6. Quincy v. Rogers. 9 Cush. 291. 7. Arrowsmith's Trust, 2 D. F. & J. 474. Brant v. Wilson, 8 Cow. 56; Johns 8. Clarke, v. Butler, 1 Mer. 304. Hopkins University v. Pinckney, 55 9. Randfield v. Randfield, 8 H. L. Md. 365; Bradley v. Gibbs. 2 Jones Cas. 235: Joiner v. Joiner, 2 Jones Eq. 13; Clarke v. Ransom, 50 Cal. Eq. 68; 55 Md. 365; 3 Sim. 24; 1 547 § 438 LAW OF WILLS. [PAET IV. previous will beyond the clear import of its language, nor upon, any suggestion of repug-naucy, save so far as may be necessary to give that codicil effect.^ But all artificial rules like these should bend to the real intention of the testator, as gathered from the whole face of the paper, aided in doubtful cases by proof aliunde. Whether a certain codicil confinns an altered will as originally written or as altered, is a matter of construction accordingly,^ For a codicil frequently confirms expressly the will except for its own. changes of disposition. Other rules of construction, equally pliable, may be cited in this connection. Thus a gift by codicil " instead of," or " in lieu of," what the will contains, means substitution, which may or may not be total, according to circumstances.^ The revocation by codicil of one's appointment in a certain capacity, as trustee, for instance, where the will made him both trustee and executor, does not carry both offices, nor affect a legacy bestowed upon him from other con- siderations.* But where a life interest is given, and a special power of appointment over the property besides, the subsequent re- vocation of all gifts " in favor of " the donee, revokes the power as well as the life interest.^ The disposition of the courts to gL-n- eralize while construing the expression of some particular will must not, however, be taken wirh too implicit a confidence. § 438. Later Provisions, whether by Way of Substitution or Addition. Whether provisions under a later will or codicil are intended for substitution, or as something additional and cumulative to the gift by the earlier one, mu^t be determined by comparing the in- Jarm. 181; Kiver v. Oldlicld, 4 DcG. 3. March v. Marchant, 6 M. & Gr. & J. 30; Payne Re, W. N. (1887) 52; 813; 5 Jur. X. S. 12; Hill v. Walker, 190 Penn. St. 35, 42 A. 381. K. & J. 168; 1 Jarm. 177, 178; 1. Viele V. Kceler, 129 N. Y. 190, Brownell v. De Wolf, 3 Mason, 456. 29 N. E. 78; and .see Home v. Noble, 4. 1 Jarm. Wills, 178; 14 Sim. 89; 173 U. S. 383, 45 L. Ed. 486. Burgess v. Burgeas, 1 Coll. 367; 5 2. Hay Re (1904) 1 Ch. 317. And Jur. N. S. 687. see Griggs v. Griggs, 70 N. E. 1099, 5. Brough Re, 38 Ch. D. 456. 178 N. Y. S. 70. 548 CHAP. 11.] ALTERATION OF WILLS. § 439 struments to discover their true intent.^ But in case of doubt an additional gift is presumed rather than revocation ; '' unless, in- deed, resort may be had to parol evidence outside the instruments for assisting the conclusion.^ In general, the different parts of a will, or of a will and codicil, should be reconciled if possible and receive a fair and consistent interpretation.^ But where there is a real discrepancy in the gifts between will and codicil, the codicil should prevail in prefer- ence.^ A codicil might by its terms vary all former dispositions and yet by its silence leave the original choice of executors in force.^ § 439. Whether Revocation of the Codicil takes Effect upon the Will; and Vice Versa. The general effect of one's later and inconsistent will upon his earlier one has already been discussed ; ^ as also the inferences to be drawn where of two inconsistent wills the testator repeals the later without the earlier one.* The testator's intention is usually followed, if it may be gathered from* the face of the whole tran- saction and legislation does not impede. Thus, where a father, angry with his son, cut him off with a shilling by both will and codicil, and then after becoming reconciled to him, cancelled the primitive clause in the codicil, but not in the will (where it con- sisted of interlined words), the court extended the cancelling act to the will as far as possible.^ Where, on the other hand, the will has been destroyed by the testator, but the codicil is preserved which professed to be part of the will, the question arises whether the revocation of the will 6. 1 Wms. Exrs. 167, 185. supra, §§ 406, 407; (1895) P. 186. 7. Bartholomew v. Henley, 3 Phil- 2. Newcomb v. Webster, 113 N. Y. lim. 316. See Higgins v. Eaton, 191, 21 N. E. 77. 188 F. 938. 3. Supra, § 417. 8. Supra, § 423; Part VI. c. 3, post. 4. Supra, § 413. 9. Part VI., post; Colt v. Colt, 32 5. Utterson v. Utterson, 3 V. & B. Conn. 422. 122. 1. See Towry Re, 41 Ch. D. 64; 549 § 439 LAW OF WILLS. [PART IV. operates hj inference to revoke tlie codicil also. The answer de- pends mainly upon the contents of the several papers and the in- tent to be fairly gathered from the face of the papers, aided, if need be, by extrinsic evidence. If the provisions of the codicil were so dependent on the will as not fairly to stand apart and in- dependently of it, the destruction of the will carries that of the codicil likewise.^ But if the provisions in the codicil were inde- pendent of the will and capable of subsisting separately, the in- clination is to declare the codicil unrevoked, unless from other cir- cumstances a different intention may be gathered.^ Evidence of actual intent may, however, clear such controversies. Thus, where a testator who had executed a codicil at the foot of his will, cut off his signature from the will only, this was held to revoke the codicil also, on proof that such was the testator's intention.^ On the other hand, where, at the testator's death, the sole testamentary papers found were a duly executed codicil and two drafts of wills, as to the execution or revocation of which there was no evidence, th,e codicil was by itself admitted to probate, as still unrevoked ; and this notwithstanding that the codicil was dependent on a missing will to which it belonged, and could not be construed without it.* 6. I Jarm. Wills, 139; Usticke v. is perfectly true that the presump- Bawden, 2 Add. 116. The English tion of law, when a testamentary spiritual courts before 1 Vict. c. 26, document in the possession of the de- appear to have favored such a con- ceased is not forthcoming at his struction, in the absence of proof death, is that it was destroyed with showing a contrary intention. lb.; the intention of revoking it. But to 2 Add. 229; Coppin v. Dillon, 4 go further and to hold that the will Hagg. 369. was destroyed with the intention to 7. Tagart v. Squire, 1 Curt. 289 ; revoke, because it is not found among 1 Jarm. Wills, 139; Greig Re, L. R. the deceased's papers, and then to say 1 P. & D. 72. that the codicil which is preserved 8. Bleckley, Goods of, 8 P. D. 169. among the deceased's papers was And see Greig lie, L. R. 1 P. & D. therefore a document which the de- 72. ceased intended to destroy also, is, I 9. Gardiner v. Courthope, 12 P. D. think, going beyond the bounds au- 14. This decision proceeded like thorized by the law." Butts, J., ib. others upon the principle of the prob- 17. able intention of the deceased. " It 550 CIIAr. II.] ALTEKATION OF WILLS. § 440a The usual and natural plan is of course to revoke by suitable act both will and codicil simultaneously, where such is the testa- tor's real purpose, and thus leave nothing in the transaction to doubtful inference. § 440. Misrecital of Will in Codicil; their Mutual Comparison. Tbe mere misrecital of a will by a codicil is inoperative, and will not modify the dispositions of the original instrument; but an erroneous recital of a will, coupled with or followed by a clear indication that some modified or inconsistent disposition is in- tended by the codicil, operates to modify or alter the earlier gifts.^ It often happens that an ambiguity in a will is controlled and gTiided by the recitals of a codicil.^ And in general the reference from the one instrument to the other may be useful for explaining the testator's full and final purpose. When a testator by a codicil confirms his will, the will together witli all previous codicils is taken to be confirmed. It is sometimes said that a codicil confirming a will makes the will for many pur- poses to have the date of the codicil ; but this is no technical rule to override the true intent of the transaction and its force is lim- ited accordingly.^ § 440a. Probate of Codicils. The general rule for proving codicils is the same as for proving a will. Will and codicil, when separately executed, may be sepa- rately proved ; but the rule of convenience is sometimes applied, that proof of a codicil establishes the will without further proof, when written on the same paper or on another paper, if clearly 1. Margitson Re, 48 L. T. 172. A dissenting). Cf. Gibson v. Gibson, paper, bearing the same date with 28 Grntt. 44. the will, similarly executed, and 2. Darley v. Martin, 13 C. B. 683; rpla^ed in the isame envelope, has 1 Jarm. 532. See Part VI., post. been pronounced a codicil, though it 3. Hopwood v. Hopwood, 7 H. L. made no reference in language to the 728; Biddulph v. Hole, 15 Q. B. 848; will. Perkins v. Perkins, 84 Va. 358, 30 Neb. 149. 45 E. 833 (one of the three judges 551 § 440a LAW OF WILLS. [part IV. and unmistakably referring to the will so as to preclude all doubt of its identity.* Codicils usually receive probate with tbe will itself ; but a codicil which refers to a previous will may be granted alone, where no trace of the will can be found ; ^ and as to the gen- eral bearing of codicils upon one another or upon an original will, the testator's intention manifested in the several instruments should be given fair operation if possible.® 4. § 448a, post. substitute for another, (1895) P. 5. Clements's Goods (1892) P. 186. And see § 448a; Kelly's Estate, 254. 84 A. 593, 236 Penn. 54; Vol. II, §§ 6. See one codicil intended as a 1060, 1082. 552 CHAP. III.] EEPUBLICATION OF WILLS. § 442 CHAPTEE III. REPUBLICATION OF WILLS. § 441. Republication defined; Acts Express and Implied, Bj tlie republication of a will is sigTiified that act done by a tes- tator from which the law concludes that an instrument once re- voked was intended by him to revive and operate as his last will. The act being sufficient in a legal sense, his new intention is per- mitted to operate accordingly.-^ A revoked will may be republished in one or two ways: (1) by its actnal re-execution in effect, which constitutes an express republication of the will ; ( 2 ) by less formal acts from which re- publication may be implied, or as it is sometimes called, by con- structive republication.^ These methods we proceed to examine in turn. § 442. Express Republication; Statutes requiring Re-execution or a Codicil, etc. In England, at the present day, and doubtless to a considerable extent by the force of local legislation in the United States, ex- press republication of a will is the only kind recognized. There must be an actual re-execution of the original will; or, what is tantamount to this, the due execution of some codicil which shows an intention to revive the instniment. This statute rule for a long time affected only devises of real estate; wills of personalty being capable of implied and informal republication, as they were of informal execution in the first place. The Statute of Frauds, which made a formal execution essential for all wills of land,^ declared, as a part of the same scheme of policy, that no will of lands should be republished, except by its 1. See Bouv. Diet. " Republication." 2. 1 Jarm. Wills, 193 ; Bouv. Diet. To "revive" a will is used as syn- " Eepublication "; 1 Wms. Exrs. 205. onymous with " republish." 1 Wms. 3. Supra, §§ 353, 253. Exrs. 305; Act 1 Viet. c. 26, § 22. 553 § 443 LAW OF WILLS. [PAET IV. re-execution in the presence of three witnesses, or by a codicil dulv executed in like manner. For upwards of a century and a half longer/ wills of personal property continued capable of informal revival, when the new Wills Act of Victoria so extended the for- malities of execution as to embrace wills of whatever property, and at the same time cut the specious doctrine of informal republica- tion at the root. After January 1, 1838, no will or codicil, or any part thereof, which had been in any manner revoked, was to be re- vived otherwise than by its re-execution, or by a codicil executed with the full statute formalities, and showing an intention to revive the same.^ In the United States it has also been held, by construction of local enactments, more or less positively worded, that the republi- cation of a will is essentially at the present day the making of a new will, and the usual fo'rmalities of execution must be followed.® § 443. The Same Subject. Legislation of this tenor excludes all other means of showing one's intention to revive his will. Destniction of the revoking in- strument, as by burning, tearing or cutting, is not sufficient; nor do the rules of proof in revocation aiford a criterion for proving re- publication.'^ As for the execution of a codicil which (agreeably 4. From 1677 to 1837, to be more 622, 125 Am. St. Rep. 759, 14 L. R. precise. A. (N. S.) 937; Safe Deposit Co. v. 5. Act 1 Vict. c. 26, § 22; Appen- Thorn, 83 A. 45. 117 Md. 154; Black- dix, post. This section proceeds to ett v. Ziegler, 133 N. W. 901, 153 state that " when any will or codicil Iowa, 344. In Pennsylvania since which shall be partly revoked, and legislation in 1833, a new rule has ap- afterwards wholly revoked, shall be plied. Gable v. Daub, 40 Penn. St. revived, such revival shall not ex- 217, 230. tend to so much tliercof as shall have 7. Major v. Williams, 3 Curt. 432. been revoked before the revocation of As to the former nilc of construc- thc whole thereof, unless an inten- tively reviving an earlier existing tion to the contrary shall be shown." will by destroying the later one 6. P)arker v. Bell, 46 Ala. 218; (which this legislation changes), see Penniman's Will, 20 Minn. 245, 18 supra, §§ 413-415. Am. Rep. 3G8; 28 R. I. 523, 68 A. 554 CHAP. III.] KEPUBLICATION^ OF WILLS. § 443 to the terms of the English statute) shows " an intention to revive," that intention must appear on the face of the codicil with reason- able certainty, and is not to be gathered from extraneous proof.* No particular words, however, are necessary to be used in a codicil in order to effect a republication of the will to which it is an- nexed ; * and the execution of the codicil dispenses with re-execu- tion of the will itself.^ With regard to the proper method of re^executing, little remains to be said. The testator need not sign the will again; for if he acknowledges his signature before the required number of wit- nesses with the proper formalities this is good for either re-execu- tion or an original execution.^ Publication and republication call for essentially the same proof.^ Generally speaking, it is a good republication for a testator to call witnesses of the statute number to such republication, declaring the paper to contain his last will, and then causing the witnesses to subscribe their names by way of attesting the transaxjtion.* 8. Lord Penzance laid down the rule at some length in Steele's Goods, L. R. 1 P. & D. 575; holding that the reference in a codicil by date to a re- voked will was insufficient to revive it, without evidence on the face of the codicil that the testator so in- tended. But semble, express words of such intention may be dispensed with, if the disposition made by the codicil is inconsistent with any other inten- tion, lb. See § 447. Reference to '' my said will," etc., may well identify the will to be re- vived by codicil, unless it appears that there was more than one will of the testator in existence. 2 Notes Cas. 406; Terrible Re, 1 Sw. & Tr. 140. See further, 1 Robert. 583; 3 Robert. 318; Marsh v. Marsh, 1 Sw. & Tr. 528. In McLeod v. McNab, App. Cas. (1891) 471, a codicil re- vived by reference a former will; and it was held that the will was no longer affected by the partial revo- cation made by an intermediate codicil. 9. Corr v. Porter, 33 Gratt. 278. 1. Brown v. Clark, 77 N. Y. 369. To " confirm " in such a codicil meansi to "revive." App. Cas. (1891) 471. 2. See supra, §§ 321-325. See Kohn's Estate, 137 N. W. 735, 172 Mich. 342 (where, in the case of an altered will, the testator retraced her name with a dry pen, after which new wit- nesses signed in due form in her presence) . 3. Musser v. Curry, 3 Wash. 481 ; Simpson Re, 56 How. Pr. (N. Y.) 125; Carey v. Bauglm, 36 Iowa, 540, 14 Am. Rep. 534. 4. 1 Wms. Exrs. 206, Am. Ed. See also Dunn v. Dunn. L. R. 1 P. & D. 555 § 444 i^w OF WILLS. [part IV. § 444. Implied Republication, Next, as to implied republication, for which, it is plain, little footing is found under our modem enactments. Possibly there are American codes which still leave the law of republication as it stood in England prior to 1838 ; and in English or American jurisdictions, moreover, wills of personal property made before the change of policy took effect, may still be offered for probate. At all events, the once honored theory of reviving a testament by in- formal acts is worthy of a professional student's curiosity. From 1677 to 1837 in England, and down to a period varying not greatly from the latter date in most parts of the United States, implied republication might operate upon wills of personalty, though excluded as to devises of land by the Statute of Frauds, in pursuance of which attestation became an essential part of the original execution. A will of the former description required no other formality than writing; and once revoked it needed no re- execution or solemn codicil to revive it; but republication might be effected by an unattested codicil or other writing, and even by the mere parol acts or declarations of a testator whose intention could be thus informally established.^ Such appears to have been the doctrine of our law from the earliest times, so far as wills of chattels or personal property were concerned ; and even a devise of land, made under the old Statute of Wills, prior to the act of 29 Charles II., permitted of a parol revival in like manner.^ After the Statute of Frauds went into eft'ect, the republication of a will of real estate could not be proved by parol ; but as to wills of per- sonalty the law continued as before.^ 277; Brown v. Clark, 77 N. Y. 369. 29 Car. II. § 19. might involve a pro- The statute of New York on this sub- hibition of nuncupative republica- ject is peculiar. See § 326, suprxi ; tions, has no force. 2 Cas. temp. Lee, Simpson Re, 56 How. Pr. 125. 494; 1 Wms. Exrs. 66, 68, 203. As to republishing a conditional 6. Jackson v. Hurlock, Arab. 494; ■will which lias failed, by re-exccution, Cro. Eliz. 493 ; Alford v. Earle, 2 etc., see supra. §§ 287, 288. Vern. 209; 1 Wms. Exrs. 207. 5. 1 Wms. Exrs. 206, 207. The ob- 7. See Cogdell v. Cogdell. 3 Desau. jeotion, Komctirnf's suggested, that the 346; Havard v. Davis, 2 Binn. 425. prohibition of nuncupative wills in 556 CHAP. III.] EEPUBLICATION OF WILLS. § 445 § 445. The Same Subject: Oral Instances cited. A will long laid aside and so defaced by vermin or the natural elements that a court might otherwise have supposed it revoked once and for all, can accordingly under the old doctrine receive new force by later acts and words of the testator showing an intent that it shall operate; though this may have been by virtue of re- publishing or as having never in fact been revoked.^ A cancelled or obliterated will which remained legible might also be revived by words and signs of the testator showing that he meant it to operate notwithstanding.^ But the intention to revive or republish one's will of personalty, or treat it as in full existing force, must have consistently appeared on all the proof; and where the face of the transaction imported an opposite conclusion, direct and unequivocal evidence of intent was required ; mere declarations of the testator being treated as in- sufficient. As, for instance, where two inconsistent wills were left, or a later one with a clause expressly revoking the earlier one, both being preserved together.^ For the attempt to dispute the plain effect of writings by oral or less solemn testimony is to be dis- eouraged. iSo that, after all, the chief decisions favorable to oral republication seem to have been rendered where the facts left it in doubt whether the will had ever been revoked, and theories of non-revocation or revival led to the same legal result, nameiy, the establishment of the will propounded for probate. Under all cir- cumstances, the facts should have consisted with the intent of re- publishing, or at least of declaring the will to be in present force.^ 8. Braham v. Burchell, 3 Add. 264. 2 Conn. 67; Jackson v. Potter, 9 9. Slade v. Friend, cited in 2 Cas. Johns. 312. temp. Lee, 84; Brotherton v. Hellier, 2. A testator was searching for an- 2 Cas. temp. Lee, 55; 1 Wms. Exrs. other paper, and one who assisted 211. But qu. whether a will com- him took up the will by mistake, pletely destroyed by way of revocation whereupon the testator casually ob- could be republished by oral words served, ''That is my will"; this was and acts. held by Lord Hardwick insufficient to 1. Daniel v. Nockolds, 3 Hagg. show ammus repuhlicandi. Abney v. 777; Stride v. Cooper, 1 Phillim. 336, Miller, 3 Atk. 599. per Sir John Nicholl; Witter v. Mott, 557 § 4:46 LAW OF WILLS. [PAKT IV^ And in the United States, several of the older decisions announce the rule that a will once revoked by a written declaration cannot be republished bv parol.^ T^Tiere there is no real revocation of a will, but rather a sus- pended intention in the testator's mind as between various wills he has duly executed, the practical effect of his final choice among them is favorably regarded in the probate.* § 446. The Same Subject: Oral Revival after Revocation by Act of Law. The effect of oral revival where the will has been revoked by act of law may here be noticed.'' The will of a woman, as we have seen, ceases to operate on her subsequent marriage; and although she should survive her husband the will remains inoperative with- out a republication.^ The question then arises whether informal republication upon her widowhood gives new operation to the will, aside from legislative restriction. It is decided in the English ecclesiastical courts that it does : that her recognition of the revoked will after her husband's death may be by words and conduct.^ But 3. Witter v. Molt, 2 Conn. 67; the first will was never fully revoked. Jackson v. Potter, 9 Johns. 312; 4. § 415, supra. In Williams v. Wil- Carey v. Baughn, 36 Iowa, 540, 14 Hams, 142 Mass. 515, the final choice Am. Rep. 534; Love v. Johnston, 12 of the testator as between three wills Ired. 355. he had fully executed was made clear On the other hand, circumstances to the court. He had destroyed the of intent are favored in some of our first and third and preserved the sec- cases, as constituting an oral revival ond at his death. This was held to sufficient for all practical purposes. sufficiently revive the second will for Thus, where a testator executed a probate without further evidence of second will, supposing at the time republication. Here, semhle, the see- that his first will was lost, and he ond will had not been fully revoked subsequently found the first, and de- by the execution of the third, .stroyed the second, declaring that he 5. Supra, § 424. preferred the first, the latter may 6. 1 Cas. temp. Lee. 513; Long v. properly be admitted to probate. Aldred, 3 Add. 48; Wollaston Re, Marsh v. Marsh, 3 Jones L. 77. We 12 W. R. 18; supra. § 424. here suppose that no local statute is 7. Miller v. Brown, 2 Hagg. 209; transgressed by the decision. Semble, supra, § 424. that under circumstances like these nno. CHAP. III.] EEPUBLICATION OF WII.X,S. § 44T this doctrine receives no extended favor. The will of a woman which became legally revoked by her subsequent marriage acquires no validity at her predecease, though her sundving husband assent to its probate.^ ]^or is a will, revoked by inference of law on the subsequent birth of a (jhild, or on subsequent marriage, to be con- sidered as republished on merely parol proof, whore the local stat- ute requires all wills to be formally subscribed and attested, or where publication is an act subjected by local law to written solem- nities.' An express revival of the will of a man or woman which has been legally revoked by subsequent marriage, or by marriage and the birth of a child, or by birth of a child alone (a.s legislation may require) is the desirable mode in these later times; and exe- cuting a codicil to that purport accomplishes usually the result a^ thoroughly as would the re-execution of the revoked will itself, provided the statute formalities be pursued.^ Generally speaking, wherever a will is revoked by legal inference from a change in the testator's condition, a later testamentary writing duly executed, revives it, if of corresponding tenor.^ § 447. Implied Republication by Codicil or Writing. An implied or constructive republication takes place, by a codicil suitably expressed; and so far as unattested writings served for- merly as wills on the strength of one's testamentary intent, unat- tested codicils or mere writings might revive as well as alter a will. 'Nov by the old law was it necessary to annex the codicil to the 8. Carey Re, 49 Vt. 226; supra, § subsequent marriage made a codicil, 424. on the day of his marriage and after 9. Carey v. Baughn. 36 Iowa, 540, the ceremony, which revived and con- 14 Am. Rep. 534; 53 S. E. 850; Fran- firmed the will, and the codicil could sen's Will, 26 Penn. St. 202. Semble not be found after his death, probate if publication may be proved by parol, was granted of the will and codicil so may republication; and vice versa. on oral proof repelling the idea that lb.; 56 How. N. Y. Pr. 125. the testator had ever changed his in- 1. Brown v. Clark, 77 N. Y. 369; tention. James v. Shrimpton. 1 P. 2 Notes Cas. 406. Where a testator D. 431. whose will became revoked by his 2. Brady v. Cubitt, 1 Doug. 31. 559 448 LAW OF WILLS. [part IV. former will which it republished,^ nor to expressly republish the former will, provided the codicil appeared to intend republication, in effect. A codicil which referred vaguely or even inaccurately to the prior will might yet operate to republish it; ^ for it wa.s held that every codicil is constructively a part of a testator's will, and as such proves that the testator, when he made it, considered his will as then in existence.^ This somewhat strained rule of constructive intent, though liable to extend the inference of republishing beyond one's par- ticular intent, yet kept that intent in view for ultimate guidance. For while the rule appeared to justify the conclusion that the codicil was, by its own force and independently of any expressed or implied intention to that effect, a republication of the will, unless a contrary intent was indicated by the instrument with reasonable certainty,® yet the question was, whether the particular case fell within the general rule. And where it appeared by the termB of the codicil that it was not intended to operate so as to republish, the usual presumption failed, and no republication took place.^ 3. 1 Wms. Exrs. 211, 212, and cases cited; Acherly v. Vernon, 3 Bro. P. C. 107. But attaching the codicil to one of two or more wills ■was regarded as effectively indicating that the codicil was intended to re- publish that particular will. lb. 4. Rogers v. Pittis, 1 Add. 38, cit- ing Jansen v. Jansen, 1 Ves. Jr. 490. 5. Acherly v. Vernon, 3 Bro. P. C. 107; Barnes v. Crowe, 1 Ves. Jr. 488; 4 Bro. C. C. 2; Duffield v. Elwes, 3 B. & C. 705; Dickinson v. Stldolph, 11 C. B. N. S. 341; Burton v. Newbery, L. R. 1 Ch. D. 234; Brown v. Clark, 77 N. Y. 369; Haven v. Foster, 14 Pick. 543; Corr v. Porter, 33 Gratt. 278; Stover v. Kendall, 1 Cold. 557; • NcfT's Appeal, 48 Penn. St. 501. See Walton's Estate, 45 A. 426, 194 Penn. 528 (reviving a codicil imperfectly executed ) . 6. See Neff's Appeal, 48 Penn. St. 501. 7. Bowes V. Bowes, 2 B. & P. 500; Haven v. Foster, 14 Pick. 541; 1 Wms. Exrs. 213. Where a codicil is made as part of one's last will, it will be presumed to refer to tlie will in existence and in force, and not to one already can- celled and revoked, though both exist undestroyed. Crosbie v. Macdoual, 4 Ves. 615; Hale v. Tokelove, 2 Rob. 326. And a codicil which refers to a will of a particular date, and not to a subsequent codicil, does not operate to republish that subsequent codicil. Burton v Newbery, L. R. 1 Ch. D. 234. Nor does a codicil republish any 560 CHAP. Ill,] EEPUBLICATION OF WILLS. § 448a English cases have gone so far as to defeat, by a probate, the real intention of a testator, where reference is made by a codicil to the wrong \\dll of two former ones, not by a mere mistake of date, but through misapprehension by the professional draftsman of the codicil.* § 448. General Effect of Codicil in reviving what was imper- fectly executed. A new will duly executed may stand as a final disposition, whether or not the same idea was initiated in former papers no longer preserved. But according to various decisions, a codicil, as such, may refer and attach to some former invalid testament still extant by suitable and clear expressions so as to confirm and republish, and give valid operation to the whole as one's will.^ As where the former instrument was imperfectly executed.^ Or where it was made while the testator was coerced and the coercion is after- wards removed.^ Or in the case of a married woman, disabled through coverture from disposing by her will at the time she made it.^ That the most sensible course usually, for these days, is to destroy the inoperative instrument, and make a will de novo em- bodying whatever is desirable in the former invalid instrument, we need hardly argue. § 448a. Proof of Codicil, as Establishing Proof of Will. When a codicil is written on the same paper as the will, or as a separate writing clearly and unmistakably refers to the will so as part of the will inconsistent with its teau, 14 Mo. 587, 55 Am. Dec. 120; own terms. 26 Barb. 68. A mere McCurdy v. Neall, 42 N. J. Eq. 333, casual reference in a codicil to a for- 7 A. 566; Murfield's Will, 74 Iowa, mer revoked will does not revive it. 479, 38 N. W. 170; 15 P. D. 216; Dennis's Goods, (1891) P. 326. And Kelly's Estate, 84 A. 593, 236 Penn. see Smith Re, 45 Ch. D. 632. 54. But a holographic codicil which 8. Chilcott's Goods (1897), P. 223; is unattested cannot bring into opera- 6 P. D. 205. tion a former invalid will. 83 Ky. 9. Cf. supra, § 281. 584. See § 255; 89 S. W. 687, 121 1. Beall V. Cunningham, 3 B. Mon. Ky. 588. 390, 29 Am. Dec. 469 ; Harvy v. Ghou- 2. O'Neill v. Farr, 1 Rich. 80. 36 561 § 449 LAW OF WILLS. [PART IV. to preclude all doubt of its identity, proof of the codicil establishes the will without further proof, except such portions thereof as are revoked or altered by the codicil. In such case, the codicil, when duly executed, operates as a republication of the original will, and gives to it the same force as if it had been executed at the date of the codicil, the two instruments being thus regarded as one, and as speaking from the date of the codicil.* Flirthermore, it should be presumed that the testator knew the contents of such original will when he executed the codicil.^ § 449. The Same Subject: Former Efficacy of Republishing so as to dispose of After-Acquired Property. Formerly the efficacy of a codicil in republishing a prior will was especially valued, inasmuch as it might enlarge the operation of the original testament by disposing of more property. As already observed, a devise, by the technical theory of our earlier law, carried no lands acquired after its date ; ® while republication or a new devise alike required a testamentary writing duly attested,^ in order to affect one's real estate.^ By virtue of a codicil properly subscribed and witnessed, lands acquired after the date of the will and before the execution of the codicil would pass under the will.* This furnished a strong motive for giving to codicils the repub- lishing effect ; and such a turn of construction was constantly urged 3. Braham v. Burchell, 3 Add. 243. 344; Pope v. Pope, 95 Ga. 87, 22 S. So, too, under the former English E. 245. Statute, it was held that where an 5. Pope v. Pope, ib. ; § 440a. infant made a will before he was com- 6. Supra, § 29. petent to do so, he might expressly 7. Supra, § 442. approve the will after arriving at 8. 2 Eq. Cas. Ab. 769, pi. 1; Potter competent age. Supra, §§ 39-44. And v. Potter, 1 Ves. 437; Piggott v. fX'rsons of unsound mind might re- Waller, 7 Ves. 98; Miles v. Boyden, publish, when fully restored to rea- 3 Pick. 213; Browntl v. De Wolf, 3 son, by an express act. Swinb. pt. 2, Mason, 486; Dunlap v. Dunlap, 4 § 3, pi. 2; 1 Wms. Exrs. 225. Desaus. 305; Jones v. Hartley, 2 4. Hobart v. Hobart, 154 ill. 610, Whart. 103; Cogdell v. Cogdell, 3 613, 64 N. E. 1038; Kelly's Estate, Desaus. 346; Langdon v. Astor, 16 ft4 A. 593, 236 Penn. 54; Blackett v. N. Y. 9; Corr v. Porter, 33 Gratt. Zicglcr, 133 N. W. 901, 153 Iowa. 278. 562 CHAP. III.] REPUBLICATIO?^ OF WILLS. § 449 by counsel, so as to give consistency to the maker's disposition as a whole, if the language used could possibly bear it. Courts yielded to the pressure ; and even codicils which expressed no intention to republish, which did not refer to the former will nor in terms con- firm it, which were occupied, in fact, with property of a different character, might, by the simple force of reviving the residuary clause of the former will, pass lands acquired since the will was executed.^ But a testator's intent was not to be tortured to pro- duce this result; and republication might be negatived by the con- tents of the will itself,^ or where the words of the will were not general enough, when brought down to date, to supply the disposi- tion which the codicil itself omitted.^ Since the passage of statutes, English and American, which dis- pense with continuous seisin and permit an original will to operate upon after-acquired lands wherever the testator so intended, this doctrine of revival by codicil has lost its prestige.^ As for wills of personal property, they rarely needed this borrowed virtue to en- large their operation, since a residuary bequest carried by its own terms whatever chattels the testator might own at his death.* Codi- cils in modern times may well be remitted, therefore, to their more obvious and natural purpose. And courts are confirmed in the position long ago taken that if the codicil shows on its face that the testator did not intend to republish, it cannot republish.^ 9. lb.; 1 Jarm. Wills, 193. tliat he may become entitled to the 1. Strathmore v. Bowes, 7 T. R. same subsequently to the execution 482; York v. Waller, 12 M. & W. 591. of his will. And by § 24 a will shall 2. Parker v. Briscoe, 8 Taunt. 699; bo construed to speak with reference Monypenny v. Bristow, 2 Russ. & My. to the real and personal estate com- 117; Haven v. Foster, 14 Pick. 541. prised in it, from the deatli of the This general doctrine of constructive testator, unless a contrary intent republication under the old law is shall appear by the will. traced out in 1 Jarm. Wills. 193-204. 4. 1 Jarm. Wills, 193; Miller v. 3. ^upra, § 29. By Stat. 1 Vict. c. Brown, 2 Hagg. 209; 1 Wms. Exrs. 26. § 3, the power of disposing by 220; supra, § 29. will as required by that act is ex- 5. See § 447; Strathmore v. Bowes, tended to all such real estate as the 7 T. R. 482; Neff's Appeal, 48 Penn. testator may be entitled to at the St. 501; Hughes v. Turner, 3 M. & time of his death, notwithstanding K. 666. 563 § 450 LAW OF "WILLS. [part IV. § 450. Republication brings down Will to Date. The general effect of republication is to make a new will at the date of republication; to bring the old will down to the new date and make it speak from that sub.^quent time.^ Hence to re- execute, or else to execute a new will, de-troying the former one, best avoids difficulties of interpretation to which papers of different date may unexpectedly give rise. Inasmuch as the laist will among various ones is the testator's true testament, republicaition revokes as of its date every former will inconsistent with that which is republished.'^ But if the will which is republished had codicils added to it, the presumption arises that the testator means to ratify and confirm the will as amended by its codicils, and not otherwise ; though the true intent of the transaction should control, if discoverable.^ A codicil which republishes as of its own date may ratify and confirm a will in whole or in part ; ^ and a will speaks from the date of its republica- tion in a codicil.^ 6. 1 Wms. Exrs. 216; Whiting's Appeal, 67 Conn. 379, 35 A. 238. A will which is revoked by a second will, and then revived by a subse- quent codicil, is to be treated as of the same date as the codicil, and therefore subsequent to the second will. Jenkins Re, W. N. (1886) 177. 7. Rogers v. Pittis, 1 Add. 38; Wal- pole v. Cholmondeley, 7 T. R. 138. 8. Crosbie v. Macdoual, 4 Ves. 610; 1 Wms. Exrs. 217; Upfill v. Marshall, 3 Curt. 636; Wikoff's Appeal, 15 Penn. St. 281, 53 Am. Dec. 59. See 1 Vict. c. 26, § 22, Appendix, upon a point of construction in this con- nection. And see Hay Re (1904), 1 Ch. 317. Republication docs not have the elTect of reviving legacies wliich have been adeemed or satisfied. Lang- don V. Astor, 16 N. Y. 9; Paine v. Pai-.sons, 14 Pick. 318; Tanton v. Kel- ler, 167 111. 129, 47 N. E. 376. Nor in general to effect, by technical con- struction, a disposition different from what the testator meant. See Lin- nard's Appeal, 93 Penn. St. 313, 39 Am. Rep. 753. A will altered after execution may be republished, to- gether with those alterations, by a codicil annexed and clearly referring to it. 72 Ga. 568; 15 P. D. 216. The republishing codicil affirms mental capacity and freedom from co- ercion when the will itself was exe- cuted. Journeay's Will, 57 N. E. 1113, 162 N. Y. 611. See also Stev- ens v. Myers, 121 P. 434, 126 P. 29. 9. Hawke v. Euyart, 30 Neb. 149, 27 Am. St. Rep. 321, 46 N. W. 422. 1. Cilmor's Estate, 154 Penn. St. 523; Hayne's Estate, 133 P. 277, 165 Cal. 568. 5G4 PART V. WILLS UPON VALUABLE CONSIDERATION. CHAPTER I. JOINT AND MUTUAL WILLS. § 451. Wills are Revocable, because of the Nature of a Gift. We have, consistently with judicial precedent, pointed out the revocable or ambulatory quality of a will during the testator's life- time as its cardinal feature/ One may make, alter or revoke his own testament at pleasure, generally speaking, so long as he is an existing, capable person acting with freedom ; and courts have for centuries asserted this as an axiom, without occasion to note whether the rule had not after all some qualifications. But there are qualifications of this rule notwithstanding; and we apprehend that this revocable quality of a will springy from the deeper postulate that a disposition of property by testament is of the nature of a gift. In the vast majority of cases, indeed almost invariably, the disposition, whether viewed as a whole or with reference to separate objects of the testator's bounty, is in a genuine sense gratuitous ; the owner regulates the succession to the bulk of his fortune as it may exist at his death, after discharging his debts and obligations; he considers it lawful for him to do what he will with his own. It may fairly be presumed that any devise or legacy under a will is given as a mere bounty, in the legal sense, and gratuitonsly. But one's testament operates subject to what his estate may owe, and should his estate prove embarrassed or in- solvent the will, though good as an instrument, fails to dispose by its strict tenor. In short, the transfer of an estate by gift is ob- structed by claims for legal consideration against that estate. When we say that a testamentary disposition, under this primary 1. Supra, § 274. 565 § 452 i.AW OF WILLS. [part v. qualification, is gratuitous, we mean that there is no binding, no valuable consideration, so far as devise, legacy or bequest may operate. One may give by his will out of affection, friendship, a sense of duty, even gratitude; but so far the motive has nothing stronger than a moral consideration, and the transfer by succes- sion is in the nature of a gift. For this reason it ought to be re- vocable ; for such a testament is in its essence a gift upon condition that the testator shall die without meanwhile altering or revoking the disposition. And such is the condition implied not only in a strict testament, but in a gift causa mortis: the oral will and the oral death-bed gift being doubtless the primitive method of indi- vidual transfer for posthumous effect.^ This implied condition in the gratuitous transfer leaves it revocable, wholly or pro tanto, at the giver's or disposer's discretion. § 452. But a Will may be upon Valuable Consideration and Imperative. But a will may be made upon valuable consideration in special instances; and if so, the disposition is not longer in the nature of a gift and gratuitous. Is it then irrevocable? Here is a difficult question with which many of the later cases confront us. Waiving, however, for a moment, the practical solution of a remedy, we an- swer that such a will loses in effect its revocable character and ac- quires the binding force of a contract transaction ; that the testator is no more capable of varying and regulating that disposition of property at his sole discretion than he was of disposing of his estate so as to give it away over his creditors' heads and regardless of legal demands which might be presented at the settlement of his estate. As a matter of legal principle, then, we must admit that there may be in effect wills revocable and wills irrevocable ; that all testamentary divspositions are not absolutely and completely in the nature of a gift by the disposer; that a testator's intention must 2. See supra, § .359; and as to gift.s causa, mortis, 2 Sclioul. Pers. Prop. 3d f.d. §§ 135, 136, 188. 566 CHAP. I.] WILLS UPON VALUABLE CONSIDERATTOISr. § 453 bend to imperious circumstances which interfere with his free, am- bulatory disposition, and mould, partially or it may be wholly, the settlement of the estate which he leaves at his death. We may perhaps fairly assume as a general principle recognized in equity, that full specific enforcement will not be applied in cases of this sort, where the contract made is vague and uncertain for proof, or the remedy sought is harsh or oppressive, or unjust to in- nocent third parties ; nor so as to extend a specifi.c ©nforcemeoit beyond the scope of the actual obligation. § 452a. Will admissible to Probate, notwithstanding Breach of Contract. A will is admissible to probate notwithstanding it indicates some contract obligation of binding force on the testator's part. For, at all events, one may by his will appoint the executor to administer the estate ; and, more than this, the probate of a will as to one's property merely concludes that the will is valid to pass any estate which the testator had power to devise or bequeath, and not that there was power to devise or bequeath as the will seeks to direct. Controversies of the latter sort are on the other hand to be settled by proper and separate proceedings in law or equity.^ § 453. The Rule of Valuable Consideration practically applied; Legacies as Payment for Service, etc. This rule of valuable consideration we find practically applied where one renders valuable services on the promise of a legacy. One who boards, nurses or cares for, some aged or feeble person, does so, in many instances, on the promise or expectation of a legacy, or it may be, the whole surplus of the estate. Mere ex- pectation cannot in general create an enforceable contract; but a mutual understanding may, if shown, afford the basis of a valid 3. Sumner v. Crane, 155 Mass. 483; not enforce). See Burke's Estate, 4 Met. 492; Craine v. Edwards, 92 134 P. 11, 66 Ore. 252; Davidson v. Ky. 109, 15 L. R. A. 447. 29 N. E. Davidson, 79 S. E. 998 (W. Va.) ; § 1151; 17 S. W. 211; 150 Midi. 630, 249. 114 N. W. 408 (probate courts can- 567 § 453 LAW OF WILLS. [part v.. claim against the indebted person's estate. If the person render- ing such a service was promised the legacy by the person he served, and the claim has legal merits and was more than the mere per- formance of some natural duty to another, the courts afford a prac- tical means of its enforcemeait. For if the aged or feeble decedent makes no will, or makes a different will from what was agreed upon, or revokes a bequest which was founded upon his own prom- ise, the claim may be presented for settlement, to the whole or partial absorption of the estate, as the case may be. Probate or common law tribunals cannot set aside or ignore the will as an in- strument, nor make a will where one has died intestate, nor remodel or construct a will to meet the special compact of the parties ; but treating the person disappointed of his legacy as a creditor of the estate, they apply a simple and available remedy.^ And, upon the same principle of a contract obligation on the decedent's part to leave his whole fortune to one who came and took care of him in his declining years, and perhaps on the suggestion of a part per- formance, besides, a collateral relative has sometimes been per- mitted to enforce specific performance in equity, so ais to s-weep in the entire estate over and above the debts, regardless of the dis- positions which may happen to be made by the will in favor of others.^ But where the amount and mode of oompemsation had been left to the decedent, and some provision was made accordingly by his will or otherwise, for the person rendering the service, the latter must remain bound by it.® And by electing to receive the 4. See Shakespeare v. Markham, 17 Howard, 43 S. E. 438, 117 Ga. 94; N. Y. Supr. 311, and cases cited; Day v. Washburn, 81 A. 474, 76 N. Schoul. Dora. Rel. § 274; 11 Phila. H. 303. 93; Townsend v. Vanderwcrker, 160 5. Schntt v. Missionary Society, 41 U. S. 171, 40 L. Ed. 383; Wellington N. J. Eq. 115. Here the agreement V. Apthorp, 145 Mass. 69; 13 N. E. wa.s established by correspondence. 10; Whetstine v. Wilson, 104 N. C. See ne.xt section. 385, 10 S. E. 471; Stone v. Todd. 49 6. Lee's Appeal, 53 Conn. 363, 3 A. N. J. L. 274, 8 A. 300; Hudson v. 758. In considering what is due the Hudson, 87 Ga. 678, 27 Am. St. Rep. disappointed promisee, all proper ofiF- 270, 13 S. E. 583; Laird v. Vila. 100 sets must be made. Hudson v. Hud- N. W. 656, 93 Minn. 45; Hanks v. son, svpra. 568 CHAP. I.] WILLS UPON VALUABLE CONSIDERATIOlSr. 453 bonefits under the will, such claimant waives his riglits under the' contract.^ Equity under circumstances of hardship and injustice to innocent third parties may refuse specific performance and remit the party to a creditor's action at law, quantum meruit} 7. Towle V. Towle, 79 Wis. 596, 48 N. W. 800. Nor to such contract, when oral does the objection of the Statute of Frauds apply; for it is not for the sale of lands or goods, and it may be performed within a year. Wellington v. Apthorp, supra. But any oral contract to devise all one's property, real and personal, to a certain person, semble, would be ob- noxious to the Statute of Frauds. lb. ; Ellis V. Gary, 74 Wis. 176. Cf. Bur- gess V. Burgess, 109 Penn. St. 312, 1 A. 167. See next section. And any oral agreement of this kind should at all events be clearly proved. Bur- gess V. Burgess, ib. ; McKeegan v. O'Neill, 22 S. C. 454; Madison v. Al- derson, 8 App. Cas. 467; Davis v. Hendricks, 99 Mo. 478, 12 S. W. 887; 6 Dem. 473; 31 S. C. 605, 9 S. E. 802 ; Rice v. Hartman, 84 Va. 251, 4 S. E. 621; 74 Wis. 176, 17 Am. St. Rep. 125, 4 L. R. A. 55, 42 N. W. 252; 109 N. W^ 983, 131 Wis. 216, 120 Am. St. Rep. 1038; Smith v. Hum- phreys, 65 A. 57, 104 Md. 285; 105 N. W. 499, 125 Iowa, 707; Russell v. Jones, 135 F. 929; 80 P. 774, 38 Wash. 691; 93 N. Y. S. 864 (bur- den of proof) ; 16 HI. App. 341; Wal- lace V. Wallace, 137 N. Y. S. 43 (clear written or oral proof) ; Mur- tha V. Donohoo, 136 N. W. 158, 149 Wis. 481 (extension of time for pay- ment of past services: rule of dam- ages); Taylor v. Higgs, 95 N. E. 30, 202 N. Y. 65; Finger v. Auken. 731 N. W. 657, 154 Iowa, 507 (expression of intention not enough) ; 130 N. W. 376, 151 Iowa, 86; Van Horn v. De- marest, 77 A. 354, 76 N. J. Eq. 386 (failure to assert in lifetime of testa- tor when ejected) ; Bless v. Bliz- zard, 120 P. 351, 86 Kan. 230. The obligation to remunerate for such services, as promised, is not im- paired, although the consideration is to be wholly or in part in the future, and though the person to whom the promise was made remains under no binding mutual obligation on his part. C. Allen, J., in 145 Mass. 69, 13 N. E. 10. A written contract to bequeath one-half of one's estate to A. is not void for uncertain description. Koebl V. Haumesser, 114 Ind. 311, 15 N. E. 345. 8. Owens v. McNally, 113 Cal. 444, where a niece claimed a promise of the whole property, and the testator had in fact married afterwards. Gifts made before death are. in such cases presumed payments pro tanto and offsets are regarded such as fair wages for personal service rendered the decedent. McNamara v. Michi- gan Trust Co., 148 Mich. 346, 111 N. W. 1066; 87 Ga. 678, 27 Am. St. Rep. 270, 13 S. E. 583; Waters v. Cline, 85 S. W. 209, 27 Ky. 479, 586. There is no breach of promise or limitation until after the testator's death. Law- son v. Mullinix, 64 A. 938, 104 Md. 156; 98 N. Y. S. 934; 116 Tenn. 252, 6 L. R. A. (N. S.) 703, 92 S. W. 767; 117 Ga. 94, 43 S. E. 438. For 5G9 453a LAW OF WILLS. [PAET V. § 453a. Other Instances of Valuable Consideration. There are other ways in which a will may be disregarded so far as it is inconsistent with a previous contract or covenant. Thus, in a Pennsylvania case, C., after covenanting in a sealed instrument, and for a valuable consideration, that he would not by deed, devise or otherwise, interfere with the rights of his heirs-at-law as to their free and equal share in all his real estate, made a will, wherein he devised his real estate to certain heirs, without including his grand- son T. therein. It was held that T. was entitled to recover in eject- ment his interest as an heir of C.^ On the same general principle an ante-nuptial contract may hinder the free testamentary disposi- tion of a contracting spouse.^ Ot a business contract involving a specific bequest may find enforcement.^ unjustifiable discharge during the testator's life, the person employed may sue at once to recover damages, including the prospective right to earn the legacy. Edwards v. Slate, 68 N. E. 342, 184 Mass. 317; Hursey v. Surles, 74 S. E. 618, 91 S. C. 284; 47 A. 626, 65 N. J. L. 279. And see Burdine v. Burdine, 36 S. E. 992, 98 Va. 515, 81 Am. St. Rep. 741 (eman- cipated slave) ; Koebl v. Haumesser, 114 Ind. 311, 15 N. E. 345. 9. Taylor v. Mitchell, 87 Penn. St. 518, 39 Am. Rep. 383. See also, as to a bond conditioned to leave a cer- tain farm by will, Major's Appeal, 126 Penn. St. 109, 17 A. 535. And see 124 N. Y. 433, 26 N. E. 1024; 46 Minn. 33, 48 N. W. 450; 111 Mich. 140, 69 N. W. 239. And see Lipe v. Ilouck, 38 S. E. 297, 128 N. C. 115 (abandonment of lawsuit) ; Keagle v. Eessell, 91 Mich. 618, 52 N. W. 58 (will anxl contemporaneous mort- gage) ; Clawson v. Brewer, 58 A. 598, 70 N. J. Eq. 803; 78 S. W. 486, 97 Te.x. 296; 98 N. W. 57, 70 Neb. 544, 113 Am. St. Rep. 802; Spencer v. Spencer, 55 A. 637, 25 R. I. 239 (a business service) ; 56 N. E. 237, 154 Ind. 253; Dillon v. Gray, 123 P. 878, 87 Kan. 139 (as to remarriage of testator, etc. ) . 1. Cole V. Society, 64 N. H. 445, 14 A. 73. 2. Crofut V. Layton. 68 Conn. 91, 35 A. 783. Such a contract is not revocable after the other party has performed his part. Teske v. Dittberner, 98 N. W. 57, 70 Neb. 544. The rule has no application to property where the testator had only a life estate. Hill V. Gianelli, 77 N. E. 458, 221 111. 286, 112 Am. St. Rep. 182. A bequest in trust does not comply with a con- tract to bequeath absolutely. 49 S. E 49, 137 N. C. 91. See 42 S. E. 336. 131 N. C. 8. The local statute of wills does not apply to such con- tracts. Winne v. Winne, 59 N. E. 832, 116 N. Y. 263, 5 L. R. A. 617. See Hammond v. Hammond, 70 S. E. 588, 135 Ga. 768 (will giving half 170 CHAP. I.] WILLS UPON VALUABLE CONSIDERATION. 454 § 454. Contract for a Certain Will specifically enforced in Equity. Courte of equity have gone farther than this ; and the principle, which in the present day appears to be asserted, is, that where one contracts upon valuable consideration to execute a will after a cer- tain tenor, the agreement is binding upon his death, and may be epecifically enforced against his rep'resentatives and his estate.^ For a trust is thus fastened upon the property of the promisor which binds the estate at his death, ISTevertheless a devisee comes within the legal definition of one who takes by purchase; and hence to an oral contract of this character, the Statute of Frauds may be pleaded; * and it is possible that other technical objections may be does not fulfil contract to give tlie whole) ; Belknap v. Tillotson, 88 A. 841, 82 N. J. Eq. 271. 3. Walpole v. Orford, 3 Ves. 402; Caton V. Caton, L. R. 1 Ch. 137; s. c. L. R. 2 H. L. 127; Gould v. Mansfield, 103 Mass. 408; Anding v. Davis, 38 Miss. 574, 77 Am. Dec. 658; 11 Ired. 632; Izard v. Middleton, 1 Desaus. 116; Day, Ex parte, 1 Bradf. (N. Y.) 476, and cases cited; Bol- man v. Overall, 80 Ala. 451, 60 Am. Rep. 107; Carraichael v. Carmichael, 72 Mich. 76, 16 Am. St. Rep. 528, 1 L. R. A. 596, 40 N. W. 173; 73 Mich. 483, 41 N. W. 514; Schutt v. Mis- sionary Society, 41 N. J. Eq. 115 (entire estate carried over) ; Allen V. Bromberg, 41 So. 771. 147 Ala. 317; Austen v. Kuehn, 71 N. E. 841, 211 111. 13. 4. Walpole v. Orford, 3 Ves. 402; Harder v. Harder, 2 Sandf. Ch. 17. A verbal agreement not to make a will so as to deprive one of land which he would inherit by the statute of descents is also invalid under the Statute of Frauds. Dicken v. McKin- ley, 163 111. 318, 54 Am. St. Rep. 471. 45 N. E. 134; 132 111. 312, 23 N. E. 1018. 8 L. R. A. 414. The want of part performance in a contract to sell land may thus be set up. Gould v. Mansfield, 103 Mass. 408, 4 Am. Rep. 573; Ellis v. Gary, 74 Wis. 176, 17 Am. St. Rep. 125. But part per- formance by the testator may some- times appear. Sharkey v. McDermott, 91 Mo. 647, 60 Am. Rep. 270. Part performance by the promisee alone is insufficient. Ellis v. Gary, supra; es- pecially where the promisee did not then possess the land. 163 111. 318. Where the promise is to devise and bequeath all of one's real and per- sonal property, it is indivisible; and failing as to the real property, it fails also as to the personal. lb. See Bird V. Pope, 73 Mich. 483, 41 N". W. 514. But though the oral agreement may not be enforceable, the value of one's services rendered in considera- tion may be recovered. See § 453 ; Stevens v. Lee, 70 Tex. 279, 85 W. 40. An agreement to leave property to several persons by will, share and share alike, is several as to each of the promisees, and they cannot join 571 § 454 LAW OF WILLS. [PAET V. raised under the Statutes of Wills, not to add the general considera- tions of uncertainty or injustice already suggested. An adopted child, who, in consideration of adoption, was promised all the tes- tator's property at his death, has been permitted to enforce specific performance out of the estate, to the subversion of a will ; ^ but not where the decedent's promise extended only to treating the adopted child like a natural one.^ Positive decisions enforcing the specific performance of an un- executed will are scarcely to be found. But in equity a will which is once fonually made in conformity to some agreement may be upheld as originally executed on the strength of some valuable consideration therein interposed; the effect of which might possi- bly be to make the will practically irrevocable, unless some matter of form, some technical arbitrary rule springing out of the statute, or the necessary form or construction of the will should defeat what the parties had mutually intended.^ There is nothing unlawful in such a compact, nothing contrary to good morals.^ in enforcing it. Myers v. Cronk, 45 Hun (N. Y.), 401. Probate proceed- ings, in the allowance of claims against an estate, must be distin- guished from specific performance in equity. lb. And the executor should be made a party to any such proceed- ings for subverting the provisions of a will. Cole v. Society, 64 N. H. 445, 14 A. 73; 58 Hun 610. " If, then, the agreement be speci- fically enforceable against the de- faulting party's representatives, it would seem that it might have been enforceable against the party himself during his lifetime; refusal or at- attempted revocation as to that party not being ground merely for an action for breach of contract. Hence there is here in effect a ease of an ir- revocable will, whether the agreement be carried out or not." 1 Jarm. Wills, 18 Am. ed., note by Bigelow. As to revoking a will jointly exe- cuted, see § 458 post. 5. Sharkey v. McDermott, 91 Mo. 647, 60 Am. Rep. 270, 4 S. W. 107. 6. Davis V. Hendricks, 99 Mo. 478. And see Snyder v. Snyder, 77 Wis. 95. 45 N. W. 818, where specific per- formance was refused. An agreement simply to educate and treat a child as one's own is not an agreement to will property to the child, Baumann v. Russian, 129 P. 986, 164 Cal. 5S2. See as to prede- cease of a son, Prater v. Prater, 94 S. E. 267, 132 P. 147, 89 Kan. 480, Cf. Austin V. Davis. 128 Ind. 472, 25 Am. St. Rep. 456, 12 L. R. A. 120, 26 N E. 890. 7. Bradford Surrogate in Day, Ex parte, 1 Bradf. 467; cases cited in nexf- section; Schumacher v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135. As to a will given upon some consideration 572 CHAP. I.] WILLS UPON VALUABLE CONSIDERATION. § 455 But the evidence to establish such an agreement, derogatory to a testator's usual right of disposition and revocation at pleasure, must be full and satisfactory and not supplied by presumptions alone ; ^ and there should be consideration for the agreement.^ § 455. Joint or Mutual Wills. It is also under the head of joint or mutual wills that our mod- em courts often discuss this irrevocable quality of g, will under ex- ceptional circumstances such as import a valuable and reciprocal consideration. And it is here too that courts of equity take up the difficult problem of enforcing a specific performance, so to speak, of the testamentary disposition, or rather of a testamentary com- pact, involving the making of the joint or mutual will in accord- ance with the mutual agreement of the parties. One promises to make a will of all his property in favor of a second person, who in consideration thereof agrees to make a similar will in favor of the first: the advantage thus to accrue being to such of the two as may happen to survive the other. Or the joint consideration may re- late to a disposition in favor of third persons; though here, as we shall see, courts are not so well disposed to enforce the cumbrous by way of an independent covenant, 105 N. W. 499, 129 Iowa, 351; Tus- see Armstrong v. Armstrong, 4 Baxt. sey v. Owen, 52 S. E. 128, 139 N. C. 357. That transactions for posthu- 457 (a contract is entire and indivis- mous effect are not usually wills if ible to give "one-fourth" of estate); of a revocable character, see supra, 105 N. W. 399, 125 Iowa, 707 (breach § 274; 97 Penn. St. 313. by the promisee) ; 66 P. 92S, 40 Oreg. 8. 1 Bradf. 467. See the case of 252; Teske v. Dittberner, 98 N. W. Bolman v. Overall, 80 Ala. 451, 60 57, 70 Neb. 544; Howe v. Watson, 60 Am. Rep. 107, where an executed will N. E. 415, 179 Mass. 30; Mueller v. was in fact delivered. Batcheler, 109 N. W. 186, 131 Iowa, 9. Edson v. Parsons, 155 X. Y. 265, 650; Murtha v. Donohoo, 136 N. W. 50 N. E. 265. 158, 149 Wis. 481; Owens v. McNally, 1. Swann v. Housman, 90 Va. 815. 113 Cal. 444, 33 L. R. A, 369, 45 P. See, further, Belt v. Lazenby, 53 S. 710 (niece claiming promise of whole E. 81, 126 Ga. 767 (specific perform- property, where the testator mar- ance as to specific property promised) ; ried afterwards); Ide v. Brown, 70 98 N. Y. S. 934 {quantum meruit N. E. 101, 178 N. Y. 26 (insufficient where after faithful service there had consideration) ; 69 N. E. 118, 177 N". been a rupture) ; Brandes v. Brandes, Y. 39. 573 § 456 LAW OF WILLS. [pAET V. arrangement; for, as to a practical operation of the compact, sim- plicity as to terms and the parties embraced under it is desirable. In short, parties may agree between themselves to execute mu- tual and reciprocal wills ; which, though remaining revocable upon due notice by either of an intention to revoke, become, upon the death of one, fixed obligations, of which equity will assume the en- forcement on an ultimate beneficiary's behalf if the survivor at- tempts to impair them by his subsequent testament.^ And this on the ground, that the survivor was bound, and that the ultimate beneficiary had no adequate remedy at law.^ § 456. The Same Subject; Joint or Mutual Wills as to Probate. When these mutual or conjoint wills first came up in practice, the common law and spiritual courts of England pronounced against thean. A mutual or conjoint will, it was said, is unknown to the testamentary law of this country.* These courts saw, doubt- less, that to give the contract under which such wills were made a practical operation as mutually intended was beyond their own jurisdiction ; and regarding the instrument simply as a will the irrevocable nature of such a writing interposed to their minds a strong ground of objection. The same unfavorable position is taken by some of our earlier American cases.^ But the later and better opinion, in both England and the United States, treats the conjoint or mutual will as capable of probate, provided it has been executed with all the statute formalities requisite for other wills, and has not been revoked by some later instrument. The real point of deci'sion by Sir John ISTicholl in Hobson V. BlacMmrn ^ (the leading ease adverse to such wills), was that such an instrument, though jointly executed, could not be set 2. Edson V. Parsons, 155 N. Y. 2G5, burn, 1 Add. 277, per Sir John 566, 50 N. E. 265. Nicholl. 3. lb. 5. Clayton v. Liverman, 2 Dev. & 4. 1 Wms. Exrs. 10, 124; Darling- Bat. 558, Daniel, J., dissenting; Wal- ton V. Pulteney, 1 Cowp. 268, per ker v. Walker, 14 Ohio St. 157, 82 Lord Mansfield; Hobson v. Black- Am. Dec. 474. 6. Hobson v. Blackburn, supra. 574 CHAP. I.] WILLS UPON VALUABLE CONSIDEK^VTION. § 457 up in probate against the later will of one of the parties which re- vokes his share of the mutual disposition; in other words it only denied the theory that joint wills were irrevocable, in the strict tesr- tamentiary sense, unless by the joint O'r mutual concurrence of the testators. Joint dispositions of property, under a testamentary instrument, are, therefore, though irrevocable in equity a? a com- pact, revocable as a will by either testator in the usual manner so far as relates to his own disposition. But, on the other hand, if either testator dies without revoking his disposition, the will may be admitted to probate as his last and separate will, on proof of du3 execution as in other cases, notwithstanding some one else executed and disposed of property by the same instrument.^ Hence a con- joint or mutual will, is not necessarily invalid, even when viewed for probate merely and in the sample sense of a testament.^ That the will happens to be made in conformity to some agreement, or imports on its face a mutuality of testamentary purpose, and a com- pact not to revoke without a joint assent, does not defeat its char- acter as a will.^ § 457. The Same Subject: Some Cases show Reserve and at- tempt Distinctions. But some of the cases which concede that such complex wills may pass to probate, discuss the doctrine with reserve and attempt 7. Stracey's Goods, Dea. & Svv. 6; 8. lb. Lovegrove's Goods, 2 Sw. & Tr. 453; 9. This whole subject is discussed L. R. 4 P. C. 236; Diez Re, 50 N. Y. with masterly force by Bradford, 88 ; Dufour v. Pereira, 1 Dick. 419 ; Surr., in Day, Ex parte, supra, and Day, Ex parte. 1 Bradf. (N. Y.) 467; the doctrine of the text is broadly Evans v. Smith, 28 Ga. 98; 73 Am. asserted. Reciprocal wills seem to be Dec. 751; March v. Huyter, 50 Tex. sanctioned by the civil law. lb.; 243; Schumacher v. Schmidt, 44 Ala. Domat, pt. 2, lib. 3, tit. 1, § 8, art. 454, 4 Am. Rep. 135. Where husband 20. Under the Louisiana code "unity and wife made a joint will .the court of confection" is prohibited; but as upon the wife's death granted probate to how far this applies, see Wood v. of so much of the instrument as be- Roane, 35 La. Ann. 865. And see came operative upon her death. Piazzi Carle v. Miles, 132 P. 146, 89 Kans. Smith Re (1898), P. 7. And see Al- 540. lardice v. Allardice (1911), A. C. 730. 575 § 457 LAW OF WILLS. [PAET V. some distinctions; shrinking evidently from sanctioning methods of disposition so unusual, beyond what the necessities of the case actually call for. Hence the law of mutual wills is still in a some- what confused state, regarded as a doctrine of general jurispru- dence. While admitting that two or more persons may execute a joint will capable of operating as if executed separately by each testator, and requiring a separate probate on the death of each, some cases appear to confine the rule to wills which are to operate exclusively in favor of the survivor. They refuse to extend the rule so as to admit to probate a will which treats the separate property of each owner as a joint fund and bequeaths or devises in favor of third parties.^ The reciprocal or mutual will, it is said, amounts simply to the separate will of the first decedent; but the joint will which disposes to third parties is more complicated and ought not to be admitted to probate.^ Such a distinction appears to lose sight of the vital element to such transactions, namely, a valuable and mutual consideration in- terposed ; it rests rather upon the view that such complex wills are impolitic and only admissible in law under a qualification. But we must conclude that, at the present stage of our law, the reciprocal or mutual will of two or more testators stands on a stronger footing than joint wills, or those joint wills at least which are expressed for the benefit of non-executing parties.^ 1. Lewis V. Scofield, 26 Conn. 452, ample of a good mutual will, jointly 68 Am. Dec. 404; State Bank v. Bliss, executed. Two sisters, J. and P., 67 Conn. 317, 35 A. 255. signed a duly attested instrument, 2. Walker v. Walker, 14 Ohio St. substantially as follows: "Know all 157, 82 Am. Dec. 874. And see obser- men that we, J. and P., do covenant rations of court in Schumacher v. and agree that, for the love we bear Schmidt, supra; 35 La. Ann. 865. A to each other, whichever of us be the joint will of sisters presenting a longest lived shall be the heir of the sclieme of disposition which it was other." Evans v. Smith, 28 Ga. 98, legally impossible to effectuate upon 73 Am. Dec. 751. And see Lewis v. the death of one only of them was Scofield, 26 Conn. 452, 68 Am. Dec. disregarded and the estate distributed 404. A will like this, it is suggested, as intestate estate in 67 Conn. 317, construed according to the legal effect 35 A. 255. of its language, undertakes only to 3. The following serves as an e.\- operate on the will of the sister who 576 CnAP. I.] WILLS UPON VALUABLE CONSIDEBATION". § 458a § 458. A Will jointly executed which disposes only of one Per- son's Property is not a Joint Will. If the property disposed of by a testament belongs to one only of the executing parties, the mere joinder of another in the execu- tion does not make the instrument what the law terms a joint or mutual will. As where, for instance, a husband and wife join in devising real estate by a will of which the husband was the sole owner.'* Such a will, though joint in form, must be regarded as the will of the party who owns the property, and the execution of the non-owner is mere surplusage. But where the joint parties to a will had a joint power of dis- posal of the property or its joint ownership neither can revoke the joint will without the other.^ § 458a. Right to revoke a Joint or Mutual Will. It would appear that at all events, either party to a joint or mu- tual will, and a survivor especially, has the right during life to revoke that will as concerns his own disposition, so that it cannot be set up in probate as his last testament ; ^ but that in equity, at all events, a subsequent revocation which was not mutual cannot destroy the trust or compact created thereby.^ An issue upon such a revoking will may raise the usual questions of validity.^ should first die, and only upon her 4. Rogers, Appellant, 11 Me. 303; estate; and predecease without revo- Allen v. Allen, 28 Kan. 18. cation settles the disposition. In 5. Breatwitt v. Whlttaker, 8 B. Diez Re, 50 N. Y 88, husband and Mon. 530 (husband and wife). One wife devised reciprocally to each spouse cannot devise or bequeath the other by such a will. And Betts v. marital property of the other. Prince Harper, 39 Ohio St. 639, supersedes v. Prince, 117 P. 255, 64 Wash. 553. Walker, 14 Ohio St. 157, 82 Am. Dec. 6. Dicta in Hobson v. Blackburn, 874, as to the impolicy of such joint 1 Add. 277; Betts v. Harper, 39 Ohio wills. See as to proof of agreement St. 157; Davis's Will, 120 N. C. 9, 136 N. Y. S. 961. The mere fact of mak- 58 Am. St. Rep. 771, 38 L. R. A. ing a joint or mutual will does not 289, 26 S. E. 636. import a mutual contract which 7. Keith v. Miller, 174 111. 64. equity should specifically enforce. Peoria Humane Society v. McMartrie, Wngner v Marr. 165 S. W. 1027 and 82 N". E. 319, 229 111. 519 (revocation citations (Mo. 1914). by subsequent marriage). Cf. Gold- 37 577 § 459 LAW OF WILLS, [PAET V. § 459. Where Probate must be delayed until Both or All Tes- tators die. Where the transaction we are considering is 6iich that the joint or mutual disposition cannot take the effect intended until both or all of the testators die, public policy receives a rude shock. The probate courts of England and some of our States, however, stand by the consequences, and pronounce that probate must be delayed in such a case until both or all of the testators die.^ But delicate and important questions in this connection remain unanswered; as, for instance, how the first decedent's estate shall meantime be settled and disposed of and whether a title can in any sense devolve under his will ; and the latest judicial disposition must be to find some way out of the dilemma.-^ Strieker's Will, 84 N. E. 581, 108 N. Y. S. 489 (statute) ; Sandberg's Will, 134 N. Y S. 869. 8. § 456; Cawley's Estate 162 Penn. St. 520, 29 A. 701; 75 N. Y. S. 542. See Stone v. Hoskins, (1905) P. 194 (on breach by one party by a fresh will the survivor has no relief) ; Dixon V. Solicitor, (1906) P. 42; Prince v. Prince, supra. 9. Raine Re, 1 Sw. & Tr. 144. And see Schumacher v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135; Davis's Will, 120 N. C. 9, 58 Am. St. Rep. 771, 26 S. E. 636. 1. In Davis's Will it is held that while an instrument purporting to be the joint will of two persons cannot be probated as the will of both, while one of the parties is living, it may be probated, on the death of one, as the separate will of that party, and if not revoked afterwards by the survivor, be probated upon the survivor's death, as to that party's property tiierein mentioned. And see (1898) P. 7. In Ohio the latest decisions give a heartier sufiport to the policy of joint 5 wills than formerly; and it is held that tenants in common of land, own- ing personal property in severalty, may make a joint will disposing of all their property severally, which will take effect on the death of all, Betts V. Harper, 39 Ohio St. 639. So far as Walker v. Walker, 14 Ohio St. 157, intimates that the policy of Ohio is opposed to joint wills, it is here reversed. In the present case the two testators desired to devise to A. and B. the undivided share which each had in the real estate. They could have executed separate wills, but preferred to make a joint will. This instrument was, in effect, the separate will of each, and either on<> might have re- voked it so far as it was her will. On the death of the first testator, the instrument might have been admitted to probate as her wrll; on the death of the other it might have been ad- mitted as the will of that person; but not being offered at all until the death of both testators, it was prop- erly admitted to probate as the will of eacli and both. 78 CHAP. I.] WILLS UPON VALUABLE CONSIDERATION. 400 § 460. Joint or Mutual Will conditionally expressed. Where a joint will is expressed to take effect conditionally or upon a contingency, and the contingency does not happen, the joint will is inoperative even to revoke a previous will.^ In Kentucky a joint will executed by two brothers, who died a few years apart, was admitted in probate as the will of each in turn, and afterwards pronounced a valid instrument. Hill V. Harding, 92 Ky. 76, 17 S. E. 199, 437. But according to the view taken in Arkansas a joint will conditioned to take effect upon the death of both is invalid; and a will must take ef- fect at the testator's death and not at the more remote period. Hershey V. Clark 35 Ark. 17, 37 Am. Rep. 1. It is also suggested in this case that neither law nor equity ought to en- force a contract as irrevocable which allows one not only to denude liimself of all control of all he then possesses, but also of all that he may afterwards acquire. Where a husband and wife agree upon a disposition of their property in case of death, and the husband prepares two wills at the same time in accordance, both wills sliould be read and construed to- gether. Keith V. Miller, 174 111. 64. 579 See Gerbrich v. Freitag, 73 N. E. 338, 213 111. 552, 104 Am. St. Rep. 234 (no suspension until death of survivor) . 2. Hugo's Goods, 2 P. D. 73. Here husband and wife executed a joint will, which was expressed to take ef- fect in case they should be called out of the Avorld at one and the same time, and by one and the same acci- dent. The husband died in the life- time of the wife, and it was held that the contingency did not happen. As to the joint or mutual wills of husband and wife, see also § 62 ; Brown v. Webster, 13 N. W. 185, 90 Neb. 591 (oral agreement and joint performance as to reciprocal wills) ; Alter's Appeal, 67 Penn. St. 341; Wyche v. Clapp, 43 Tex. 543; Mc- Clanahan v. McClanahan, 137 P. 479; 77 Wash. 138 (oral contract only). The mei'e expression of an intention to leave property to A. is no contract to devise or bequeath. Stillwell v. Pateman, 145 N. Y. S. 321. PART VI. CONSTRUCTION OF WILLS. CHAPTER I. GENERAL, RULES OF TESTAMENTARY CONSTRUCTION. § 461. Modern Precedents Many ; Deeds and Wills compared. The great and growing host of cases confronting us in the re- ports, which involve the interpretation and effect of particular tes- taments and testamentary provisions, by no means betokens a con- cretion into well-ordered principles. It is rather a multitude of precedents without array ; each serving its own capricious purpose except for some lesser rules of constraint. So long as the world lasts, those diversely interested will dispute the meaning of written phrases on which turn their several pecuniary rights ; and no writ- ings can be more fruitful of litigation, unless the tie of family binds fast, than those mysteriously framed and unexplained by which the dead has sought to place fetters upon the living ; the more so, that men reputed among the wisest of their day in affairs, have left wills behind them the strangest, the most ambiguous, the most carelessly drawn of all documents. The law itself fosters uncer- tainty in such cases by refusing to subject this class of instruments to rigid rules of construction, but making wdiat it may of a testa- tor's language, be it as slovenly and illiterate as it may ; our policy being to give the greatest possible scope to each dying owner's wishes, provided he executed the will with due formalities and within his legal rights. Indeed, without family dissension at all, resort is aften had to the court to determine how the particular will shall be construed, so as to enable executors and trustees to perform their duties intelligently. There exists, then, this striking difference between deeds and wills- that deeds, and most especially deeds of real estate, employ a precise phraseology, whose meaning is well defined by the courts 580 CHAP. I.] GENERAL KULES OF CONSTRUCTION. § 463 and adhered to in common practice; whereas wills may vary in expression as well as idea, according to the governing ideas of each testator. Deeds pursue a certain form familiar to professional ad- visers; while wills on the other hand are often drawn up in con- tempt of professional advice, and may employ terms as informal as a private letter or business memorandum ; many a disposer, in fact, flattering himself that simple words make one's meaning the clearer.-^ This peculiar indulgence of our law to wills, Lord Ken- yon and other judges have openly regretted; ^ but modem courts show no disposition to withdraw it, preferring on the whole the risk of increased uncertainty and litigation to that of perverting one's disposition, on technical grounds, from what he obviously in- tended. Deeds and verbal precision, too, we associate with trans- fers of land ; while wills which pass the title to the bulk of one's estate, to his property, both real and personal, demand the widest latitude of expression. § 462. Rules of Testamentary Construction are of Limited Scope. In wills, therefore, a testator's meaning is the great criterion, so far as mere interpretation in concerned. What he intended the courts strain to discover. There are rules, those which restrain perpetuities, for instance, or forbid mortmain, which must operate above and independently of any testator's intention, upon reasons of sound policy ; but a mere rule of testamentary construction em- bodies a simple presumption, and no more, namely, that the tes- tator intended one disposition rather than another or any other. Hence is it that a court may lay it down, in case of doubt, that the testator probably meant to dispose after a certain fashion, since otherwise he would have transgressed the rule against perpetuities, mortmain, or the like, and defeated his own intention. Our rules 1. Wills are to be construed more 117 Md. 265; Wallace v. Noland, 93 liberally than wills, in order to ef- N. E. 956, 246 111. 535. feetuate, if possible, the maker's in- 2. Lord Kenyon in Denn v. Mellor, tent. Barnett v. Barnett, 83 A. 160, 5 T. R. 558, 561. 581 § 462 LAW OF WILLS. [PAET VI. of construction determine, then, the construction which courts are bound to put upon particular words, phrases, and forms of testa- mentary disposition, in question, in the absence of one's sufficiently declared intention to the contrary.^ A testator cannot override rules founded in sound policy ; but any mere rule of construction may be overborne by the well-declared purpose of his will. It follows that in our modern practice, English and American, these rules of testamentary construction have but a limited and subordinate application. They come chiefly into play where the testator has omitted matters of detail not affecting the vital char- acter of the instrument, or where he has employed some careless and ambiguous expression which requires to be toned or explained ; but in general questions where the whole frame and language bear upon the particular construction, such rules are of little practical avail.* Certain words and expressions, when standing unex- plained, acquire from these precedents a somewhat definite mean- ing; but if it could once be a question whether or not technical phrases should conclude a testator's intention, it is no longer doubt- ful that his intention must be paramount. The same literal ex- pressions in two wills might demand the same construction ; but unless the two wills are identical throughout and dispose of similar fortunes under similar circumstance (as can seldom happen), a precedent fails of its full force. New kinds of property, moreover, have come into existence ; new and complex modes of transfer and disposition attend the modern advance of society; and under any and all circumstances the language of wills may be presumed to express the sense of the testator according to his own age and sur- roundings, rather than with any permanent or universal meaning. 3. See Hawkins's Construction of ways contains the saving clause, ' un- Wills, preface. "A rule of construe- less a contrary intention appear by tion," observes this careful writer, the will'; though some rules are " may always be reduced to the fol- much stronger than others, and re- lowing form: certain words or ex- quire a greater force of intention ia pressions, which may mean either x the context to control them." lb. or y, shall, prima facie, be taken to 4. 2 Jarm. Wills, 838. mean x. A rule of construction al- 582 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 463 § 463. The Same Subject. A bias at one time in favor of the precedents of construction and at another a^inst them may be gathered from the language of courts and t^xt-writers on this subject. Jarman, a respected authority, while deploring that license of construction which sets up the intention to be collected upon arbitrary notions as para- mount to the authority of cases and principles, takes care to remind his readers that while courts speak of the testator's intention as the governing principle, the judges submit to be bound by the precedents and authorities in point, and endeavor to collect the in- tention upon grounds of a judicial nature as distinguished from arbitrary occasional conjecture. " The court," observes an English judge, " must proceed on known principles and established rules, not, on loose conjectural interpretations, or by considering what a man may do in the testator's circumstances." ^ But, after all, authority in the mere verbal interpretation of wills carries no great weight, especially if the words and tenor of the whole will are not absolutely identical.^ The construction given to a verbal expression in one will is no positive criterion for all wills contain- ing the same expression.^ And one of the most eminent American judges of his day, impressed with the inefficiency of the adjudged cases as guides in the construction of wills, has doubted whether any other source of enlightenment on this subject is of much assistance than the application of natural reason to the lan- guage of the instrument under the light which may be throwTi upon the intent of the testator by extrinsic circumstances surround- ing its execution and connecting the parties and the property de- vised with the testator and with the instrument itself.^ 5. lb., citing Henley, L. K. 1 ed. " No two wills, probably, were ever 43. written in precisely the same lan- 6. See 6 H. L. Cas. lOS; 4 Ch. D. guage throughout; nor do any two 68. testators die under the same circum- 7. Smith V. Bell, 6 Pet. 68, per stances in relation to their estate, Marshall, C J. family, and friends. And it would 8. Mr. Justice Miller, in Clarke v. be very unsafe, as well as unjust, to Boorman, 18 Wall. 493, 14 L. Ed. 904: expound the will of one man by the 583 § 404 LAW OF WILLS. [PART VI. It is not improbable that in England, where so much of the property upon which wills operate, has been fettered by entails and settlements, more respect would naturally be paid to precedents of construction than in the United States, where the transmission of property is comparatively free.® But even in England, as Jarman admits in his summary after carefully collating the pre- cedents of the English courts, many of the so-called rules of con- struction involve uncertainty in their application to particular cases, while in a few instances the rules themselves are still sub- jects of controversy.^ The Statute 1 Vict. c. 26 has settled many questions in that country regarding real estate, and yet precedents of testamentary construction rapidly encumber the reports.^ § 464. Difficulty of applying Rules of Interpretation. Judge Story, while inculcating the duty of respecting preced- ents, wherever the intention of a testator is to be searched out and fixed, and those precedents more especially on which depend the foundation of title to real estate, has declared his own conviction that the difficulty of construing wills in any satisfactory manner renders this one of the most perplexing branches of our law. " The cases," to use his own words, " almost overwhelm us at every step of our progress ; and any attempt even to classify them, much less to harmonize them, is full of the most perilous labor. Lord Eldon has observed that the mind is overpowered by their multitudes, and the subtilty of the distinctions between them.^ To lay down any positive and definite rules of universal application in the inter- pretation of wills, must continue to be, as it has been, a task, if not utterly hopeless, at least of extraordinary difficulty. The unavoid- able imperfections of human language, the obscure and often incon- construction which a court of justice here unless the facts are identical. 85 had given to that of another, merely Conn. 134. because similar words were used in 9. See 1 Redf. Wills, 423. particular parts of it." Taney, C. J., 1. Jarm. Wills, 839. And see later in Bosley v. Bosley, 14 How. 390, 397, English cases cited. 14 L. Ed. 468. 2. lb. Precedents arc of little consequence 3. Jcsson v. Wright, 2 Bligh. 50. 584 CIIAr. I.] GENERAL RULES OF CONSTEUCTIOISr. § 465 sistent expressions of intention, and the utter inability of the human mind to foresee the possible combination of events, must forever afford an ample field for doubt and discussion, so long as testators are at liberty to frame their wills in their own way, with- out being tied do\vTi to any technical and formal language. It ought not, therefore, to surprise us, that in this branch of the law the words used should present an infinite variety of combinations, and thus involve an infinite variety of shades of meaning, as well as of decision." * Time adds to the force of these utterances which were made from the bench nearly a century ago. " Of all legal instruments," to quote from Justice Miller, " wills are the most inartificial, the least to be governed in their construc- tion by the settled use of technical legal terms, the will itself being often the production of persons not only ignorant of law but of the correct use of the language in which it is written." ^ And in general, courts, at the present day, are not inclined to follow rules of construction blindly, but interpret reasonably in each particular case, if possible.^* § 465. Construction aided or unaided by Extrinsic Evidence; the Latter here considered. The construction of any will may, according to the special cir- cumstances, be treated as aided or unaided by extrinsic evidence. It is the latter case, and the usual one, to which this chapter must be confined ; and we may observe that the general rule of our law excludes parol evidence of what the testator actually intended, 4. Mr. Justice Story in Sisson v. Hayne v. Jodrell, 44 Ch. D. 590. De- Seabury, 1 Sumii. 235, 239 (1832). cision affirmed by (1891) App. C. A will was construed as to its whole 304. meaning, and with referenc-e to the 5. Clarke v. Boorman, 18 Wall, use of certain words not terms of art. 593, 14 L. Ed. 904. A testator's in- "I repudiate entirely," said Hals- tention is to be gathered from a con- bury, L. C, " the notion of laying sideration of the substance and not down any canon of construction merely the form of the will. Univer- which is to extend beyond the par- sity v. Taylor, (1908) P. 140. ticular instrument that I am call<>d 5a. Moon v. Stewart, 101 N. E. to give an interpretation to." Scale- 344, 87 Ohio St. 349. 685 § 466 LAW OF WILLS. [PART VL except in equivocal and ambiguous cases to be noted hereafter.® A will in modern times is a written instrument ; and the interpreter of such an instrument must, if possible, draw his conclusions from an accurate study of the document itself, unaided by external testimony.'^ For what the instrument, once admitted to probate, says plainly upon its o^^^l face is not to be disputed by evidence aliunde. And if extrinsic evidence must be introduced at all to explain, that of res gestae comes first in order. § 466. Cardinal Rule that Testator's Intention shall prevail. The cardinal rule of testamentary construction, as already inti- mated, is that the plain intent of the testator as evinced by the language of his will must prevail, if that intent may be carried into effect without violating some deeper principle of public policy or of statute prohibition. And whatever respect the construction put upon corresponding words in other wills may deserv^e from the court by way of precedent, this plain and lawful intent of the particular will should not be defeated. Courts have spoken of such intention as the " law," the " pole star " or the " sovereign guide," when referring to this governing principle of testamentary causes.; ^ and the doctrine, in one formula or another, is constantly affirmed in the reports. But it is the intention of the testator as expressed in his own will which governs; and this paramoimt intention must be dis- cerned through the words of the will itself, as applied to the subject-matter and the surrounding circumstances.^ In other 6. See c. 3, post. v. Laming, 2 Burr. 1112, and Roe v. 7. Mr. Hawkins in 2 Jurid. Soc. Grew, 2 Wils. 322; Summit v. Yount, Papers, 298, contends that the rule 109 Ind. 506; 31 Fed. 241. which excludes parol evidence in aid 9. 1 Redf. Wills, 433; 2 Jarm. of interpretation is not, as high Erig- Wills, 838; Parsons v. Winslow, 6 lish authorities maintain, a necessary Mass. 175, 4 Am. Dec. 107; Christie v. result of the requirement of a writ- Phyfe, 19 N. Y. 344; Williamson v. ten will, but that Roman jurispru- Williamson, 4 Jones. Eq. 281; 16 df-nce proves the contrary. Penn. 425; 81 N. E. 654, 196 Mass. 8. Lord Halo in King v. Melling. 35; Benner's Will, 113 N. W. 663, 1 Vent. 231; Wilmot, C. J., in Doe 133 Wis. 325; 126 N. Y. S. 277; Gro- 586 CHAP. I.] GENERAL EULES OF CONSTEUCTION. § 466 words, the plain and unambignous words of the will must prevail and cannot be controlled or qualified by any conjectural or doubtful constructions growing out of the situation, circumstances or con- dition of the testator, his property or the natural objects of his bounty/ And since the interpretation and exposition of certain phrases found in similar wills, are entitled to weight,^ it may sometimes happen that the intention as expounded by the courts differs from the testator's own private intention and understanding. For the true inquiry in interpreting the will is not what the testator meant to express, but what the words used in the will express.^ Yet every will should be interpreted, as far as possible, from the standpoint apparently occupied by the testator; and attendant circumstances, such as the condition of his family and the amount and character of his property, may and ought to be taken into consideration, as part of the res gestae where the language is not plain nor the meaning obvious.* And the testator's intention ought at least to control any arbitrary rule, however ancient its origin, which is unreasonable or not well established, or doubtful in its immediate application.^ But if there are two intentions on the face of the will, one of which is general and consistent with the rules of law, and another special and inconsistent with the ther's Estate, 78 A. 88, 229 Penn. 139; Brown v. Thorndike, 15 Pick. 186; Russell v. Hartley, 78 A. 320, 388; Postlethwaite's Appeal, 68 Penn. 83 Conn. 654; Robinson v. Martin, St. 477; Sisson v. Seabury, 1 Sumn. 93 N. E. 488, 200 N. Y. 159; Down- 235; Perry v. Hunter, z R. I. 80; ing V. Grigsby, 96 N. E. 513, 251 HI. Brown v. Bartlett. 58 N. H. 511; 82 568; 140 N. W. 5, 152 Wis. 275; K E. 267, 229 111. 507; Eidt v. Eidt, Spinney v. Eaton, 87 A, 378, 111 Me. 127 N. Y. S. 680; 154 S. W. 121, 1, 46 L. R. A. (N. S.) 535; 88 A. 705, 248 Mo. 184 (will dictated to an 77 N. H. 108. unskilled scrivener just before testa- 1. lb. And see 2 Wms. Exrs. 1078; tor underwent a serious surgical Greenough v. Cass, 64 N. H. 326, 10 operation) ; 102 N. E. 306, 215 Mass. A. 757. 62; Moore's Estate, 88 A. 432, 241 2. Supra, § 463. Penn. 253; 143 N. W. 1050, 155 Wis. 3. Pack V. Shanklin, 43 W. Va. 304, 46. 27 S. E. 389. 5. Shriver v. Lynn, 2 How. 43; 4. Smith V. Bell, 6 Pet. 68; Blake Lord Mansfield in Perrin v. Blake, 4 V. Hawkins, 8 Otto, 315, 25 L. Ed. Burr. 2579. 587 § 468 LAW OF WILLS. [pART VI. rules of law, the latter yields to the former, and if necessary to give effect to the will may be rejected altogether.® § 467. The Same Subject. " The struggle in all such cases," observes Judge Story, " is to accomplish the real objects of the testator, so far as they can be accomplished consistently with the principles of law; but in no case to exceed his intention fairly deducible from the very words of the will." ^ In fine, where the meaning of the language of the will is plain, the court of construction does not go outside to dis- cover what the testator intended ; but where the provisions are doubtful or may admit of more than one interpretation, the court will put itself in the situation of the testator, in reference to the property and the relative claims of the testator's family, the rela- tions subsisting between him and them, and the circumstances which surrounded him, in order to be enlightened. And herein lies the substantial distinction between the admission and the non- admission of extrinsic evidence to aid in interpreting a given will.^ § 468. The Whole Will must be taken together. A testator's intention is, however, to be collected from the whole will taken together, and not from detached portions alone.^ For, as it is figuratively said, the meaning must be gathered ex visceri- hus testamenti, or to use another familiar expression, " from the four corners of the instrument." All the papers which constitute 6. Mr. Justice Story in Nightin- ker v. Wasley, 9 Gratt. 477; 2 Jarm. gale V. Sheldon, 5 Mason, 336. Wills, 841; 9 Mod. 154; 2 W. Bl. 7. Nightingale v. Sheldon, 5 Ma- 976; 103 111. 11; Hoxie v. Hoxie, 7 son, 336. And see Blagge v. Miles, 1 Paige, 187; Nightingale v. Sheldon, Story, 426; Fenwick v. Chapman, 9 5 Mason, 336; Jackson v. Kip, 2 Pet. 461; Smith v. Bell, 6 Pet. 68. Paine, 366; 162 111. 267; 169 111. 8. See post, c. 3. The will of an 360, 48 N. E. 128; 48 La. Ann. 1033, illiterate or untrained person is leni- 55 Am. St. Rep. 295, 20 So. 193; ently regarded in its expression. Loomer v. Loomer, 57 A. 167, 76 9. Lane v. Vick, 3 How. 464, 11 L. Conn. 522; 5G A. 148, 65 N. J. Eq. Ed. 681; Cook V. Weaver, 12 Ga. 47; 417. Jackson v. Hoover, 26 Ind. 511: Par- 588 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 468 the testamentary act must be taken as one whole, embracing will and codicils, and all papers so referred to as to be incorporated with the same in the probate.^ And all the parts and provisions of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole and operate together ; and contradictory clauses should, if possible, be reconciled accordingly.^ But where the language of one part of a will is not easily recon- ciled with that used in another, principal and subordinate provi- sions should be construed in their due relation to one another. Thus, the intent which is disclosed in the express clause of a bequest ought to prevail over the language used in making other provisions subsidiary to this bequest; unless plainly modified or controlled thereby.^ And a clearly expressed intention in one portion of the will is not to yield to a doubtful construction, in any other portion of the instrument.* Hence, too, in interpreting a will the testator's general and con- trolling purpose should be regarded, rather than any exalting and exciting ideas which may have dictated the terms of his will.^ It is not by an exaggerated expression here and there that the will is expounded, but by what on the whole was one's scheme of rational disposition. For the intent as gathered from the M^hole will overrides all those technical rules which relate to the construction of w^ords.® 1. Westcott V. Cady, 5 Johns. Ch. pressed there. Karsten v. Karsten, 343, 9 Am. Dec. 30G; Leavens v. But- 98 N. E. 947, 254 111. 480. ler, 8 Port. 380. 3. See Curtis, J., in Ward v. 2. 2 Jarm. Wills, 841; 9 Mod. 154; Amory, 1 Curt. 419; § 478, post. 6 T. R. 314; 16 Ves. 314; 82 Penn. 4. Corrigan v. Kiernan, 1 Bradf. St. 213; 80 N. E. 998, 226 111. 438; (N. Y.) 208. Mosser v. Fiske, 101 N. E. 540, 258 5. McDonough v. Murdock, 15 How. 111. 233 (will and codicils taken as a 410, 14 L. Ed. 751. whole) ; Bloodgood v. Lewis, 102 N. 6. Sumpter v. Carter, 42 S. E. E. 610, 209 N. Y. 95; Safe Deposit 324, 115 Ga. 893, 60 L. R. A. 274; Co V. Nevin, 98 N. E. 1051, 212 Burroughs v. Jameson, 53 A. 688, Mass. 232; Eidt v. Eidt, 127 N. Y. S. 62 N. J. Eq. 651; McGuire v. Galla- 680. But surrounding circumstances gher, 59 A. 445, 99 Me. 334; 50 S. E. must not be resorted to for import- 794, 71 S. C. 175; Mueller v. Buen- ing into the will an intention not ex- ger, 83 S. E. 458, 184 Mo. 458, 165 589 § 470 LAW OF WILLS. [pAET VI. § 469. Language taken according to the Testator's Situation. Here, let us observe, of the testator's language, that the rule which seeks to discover one's real intention requires that language be taken, so far as may be, according to the testator's own situation and surroundings ; according to the time and place in which he lived, and the manners and institutions which moulded his char- acter or to which on the whole he had the most probable reference. For the language of wills, as courts have observed, is not of uni- versal interpretation, having the same precise import in all countries and under all circumstances; but they are commonly supposed to speak the sense of the testator according to the re- ceived laws, or usages of the country where he is domiciled, by a kind of tacit reference ; supposing, of course, that there is nothing in the language he uses which repels or controls such a conclusion.^ In general, the intent of a testator must be gathered not merely from the language used in the will, but from that language in con- nection with the law of the land, whether of state or nation, and his personal environment.^ § 470. Technical Words; how far controlled by Testator's In- tent. Consistently with this general regard to language, technical words employed in a will are presumed to have been used in their Am. St. Rep. 451, 37 L. R. A. 64S; 41S; 78 A. 817, 114 Md. 74; Kahn v. Hoffman v. N. E. Trust Co., 72 N. Tierney, 94 N. E. 1095, 201 N. Y. E. 952, 187 Mass. 205; 76 N. E. 1043, 5I«6;' Pierce v. Root, 84 A. 295, 86 190 Mass. 317; 91 S. W. 921, 193 Mo. Conn. 90; S3 A. 795, 109 Me. 254; 62, 4 L. R. A. (N. S.) 922; Bennett 100 N. E. 1105, 214 Mass. 192. V. Bennett, 75 N. E. 339, 217 111. 434, 7. Harrison v. Nixon, 9 Pet. 483, 4 L. R. A. (N. S.) 470; 82 P. 755, 9 L. Ed. 201. 148 Cal. 184; Sigel's Estate, 62 A. 8. Pennoyer v. Slicldon, 4 Blatcli. 175, 213 Penn. 14, 110 Am. St. Rep. 319; Phil. (N. C.) Eq. 8; Clark v. 515, 1 L. R. A. (N. S.) 397, 123 P. Mosely, 1 Rich. Eq. 396, 44 Am. Dec. 476, 21 Idaho, 555; 78 A. 393, 78 N. 229; Houghton v. Hughes, 79 A. 909, J. Eq. 1; Maxcy v. Oshkosh. 128 N. 108 Me. 233 (laws of one's country) ; W. 899, 144 Wis. 238; Herring V. Wil- Lincoln v. Perry, 149 Mass. 368 Dams, 69 S. E. 140, 153 N. C. 231; ("licir at law"). Heisen v. Ellis, 93 N. E. 362, 247 111. 500 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 470 settled legal meaning unless the contrary is manifest.® And if a testator has used technical language which brings his case within some precise rule of law, that rule must take effect But technical words are liable to other explanatory and qualifying expressions in the context which disclose the testator's actual intention ; ^ and where a different meaning is fairly deducible from the whole will, the technical sense must yield to the apparent intention.^ In short, the testator's intention as gathered from the will shall prevail against the technical meaning of words or phrases, so far as may consist, at least, with the rules of sound policy, and however im- perfectly such intention was in a technical sense expressed.^ To illustrate these distinctions. When a trust is created, the legal effect of which is declared by the law, the court is bound to presume that the intent of the testator was in conformity to that law.* And specific words, especially in real estate titles, acquire readily the technical effect which usage and the decisions sanction.^ Yet the word ^' effects " has been held to embrace both real and personal property under a will and to carry a fee simple in lands, without other words of inheritance, where the will shows on the whole that such was the testator's meaning.® From a similar con- sideration, the words, " residuary legatee " have been held to carry 9. Doug. 340; 4 Ves. 329; 6 Ch. son, 336, per Story, J.; S Wms. Exrs. D. 496; Needham v. Ide, 5 Pick. 510; 1079; Suydam v. Thayer, 94 Mo. 49, De Kay v. Irving, 5 Denio, 646 ; Felt- 6 S. W. 502. man v. Butts, 8 Bush. 115 ; Jackson " Unmarried " may thus be con- V. Kip, 2 Paige, 366; 2 Jarm. Wills, strued to mean "not under cover- 842. Certain forms of expression ture " at the time referred to. W. N. however, which have become rules of (1890) 125. property and especially of land, may 3. See Karsten v. Karsten, 98 N. E. affect this rule of intent. Mulliken v. 947, 254 111. 480; Hyde v. Rainey, Earnshaw, 58 A. 286, 209 Penn. 226. 82 A. 781, 233 Penn. 540 (the word See Mueller v. Buenger, 83 S. W. 458, " lease "). 184 Mo. 458, 105 Am. St. Rep. 541, 4. Pennoyer v. Shelden, 4 Blatch. 67 L. R. A. 648; §§ 462, 463. 319. 1. Picquet v. Swan, 4 Mason, 443; 5. 8 Mass. 3, 5 Am. Dec. 66; 5 Robertson v. Johnston, 24 Ga. 102; Pick. 510; 47 Barb. 263. Daniel v. Whartenby, 17 Wall. 639, 6. Hogan v. Jackson, Cowp. 299; 21 L. Ed. 661. Ferguson v. Zepp, 4 Wash. 645. 2. Nightingale v. Sheldon, 5 Ma- 591 § 471 LAW OF WILLS. [pART VL real estate ;' the word " heir " has been construed to mean child f *' legatee " has from the context been read as " devisee " ; ^ and ■intent has controlled as to making " bequest " and " devise " synonymous.^ In determining whether a word is used in a will in a technical or more general sense, it should be considered what will best carry into effect the testator's intention ; ^ but as a rule language should be construed accordingly to its primary and ordinary meaning, unless the testator has manifested his intention in the will to give it a different significance.^ § 471. Technical Words not Necessary; Words occurring more than once. Technical words are not requisite to give effect to any species of disposition in a will ; * but the intention of the testator as dis- cerned in the will is to govern in its construction, if consistent with the rules of law, though no technical words be used at all.^ For convenience in laying hold of the testator's true meaning, it has been ruled that words occurring more than once in a will shall be presumed to be used always in the same sense, unless the context shows a contrary intention.^ But the presumption thus afforded appears usually a slight one as against the apparent in- tention, which after all is the criterion, in studying text and con- text under such circumstances. § 472. Words to be taken in Usual Sense; Punctuation, etc. Words in general, whether technical or popular, are to be taken 7. Burwell v. Mandeville, 2 How. 4. 3 T. R. 86; 11 East, 246; 2 560, 11 L. Ed. 378. Jarm. Wills, 840. 8. Bland v. Bland, 103 111. 11. 5. Richardson v. Noyes, 2 Mass. 9. Weeks v. Cornwell, 106 N. Y. 56; Smith v. Bell, 6 Pet. 68; and nu- 626, 13 N. E. 96. merous other cases cited, U. S. Dig. 1. Tliompson v. Gaut, 14 Lea, 310. 1st series, Wills, 1524. 2. 15 N. J. L. 276. 6. See 1 Jarm. Wills. 842; (1900) 3. Hone v. Van Schaick, 3 N. Y. 1 Ch. 417; 2 Ch. Cas. 169; 3 Drew, .138; 1 Johns. Ch. 220; 10 S. & R. 472; Mcintosh's Estate, 158 Penn. 150. St. 528, 27 A. 1044; Wood v. Wood, 63 Conn. 324, A. 520; 135 N. W. 3. 592 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 473 in their plain and usual sense, unless a clear intention to use them in another sense can be collected and that sense ascertained besides.'' And where an intelligent layman draws up his own will, words used by him which have an intelligible conventional meaning will not be presumed to mean something different.^ Punctuation, how- ever, is of no great significance, nor even syntax.' § 473. Courts give Effect if Possible to All Parts of a Will. A court is bound to give effect to every part of a will, without change or rejection, provided an effect can be given to it, not inconsistent with the general effect of the whole will taken to- gether.^ And where effect cannot, consistently with the rules of law, be given to an entire will, or to an entire provision therein, any part of it which conforms to such rules will be sustained, if it can be separated from the rest of the will without violating the testator's general intention. Thus, if the testator expresses a general primary intention which conforms to the law, ulterior limitations by which he seeks to establish a perpetuity may be 7. 18 Ves. 466; 4 C. B. N. S. 790; And see 80 A. 86, 84 Conn. 391; 95 2 Jarm. Wills, 841; 2 Dem. (N. Y.) N. E. 788, 209 Mass. 350; Houghton 534; Barney v. Arnolds, 15 R. I. 78, v. Brantingham, 86 A. 664, 86 Conn. 23 A. 45. 630 (translated words in a French 8. Hamilton v. Ritchie (1894), A. will). C 310; 66 N. H. 434, 31 A. 900; 99 9. 43 S. C. S78, 65 S. C. 390; 87 Cal. 30, 33 P. 751; 189 N. Y. 202, 82 N. Y. S. 325; § 477, post. N. E. 181; Jacobs v. Prescott, 65 A. 1. Dawes v. Swan, 4 Mass. 208; 6 761, 102 Me. 63 (words popular in Mass. 169, 4 Am. Dec. 107; Dill v. their popular or grammatical sense. Dill, 1 Desaus. 237; Mutter's Estate, and words technical in their techni- 38 Penn. St. 314; Lawrence v. Smith, cal sense); Ironside v. Ironside, 130 163 111. 149, 45 N. E. 259; Dalton v. N. W. 414, 150 Iowa, 628; 62 A. 814, Scales, 2 Ired. Eq. 521; 108 Penn St. 102 Md. 649; Allison v. Allison, 44 314, 56 Am. Rep. 208; 136 Mo. 244, S. E. 904, 101 Va. 537; 45 S. E. 324; 37 S. W. 909; 80 N. E. 998, 22R 111. McAllister v. Hayes. 79 A. 726, 76 438; 72 N. E. 751, 213 111. 124; Hall N. H. 108. Ordinary rules of gram- v. Hall, 95 N. E. 188, 209 Mass. 350; mar are favored. 66 N. E. 795, 183 137 N. Y. S. 578; Honaker v. Starks, JNIass. 212. Words are sometimes used 75 S. E. 741, 114 Va. 37; Smith v. with a special meaning. Weeks v. Piper, 80 A. 877, 231 Penn. 378; 69 Mansfield, 80 A. 784, 84 Conn. 544. S. E. 140, 153 N. C. 231. 38 593 § 474 LAW OF WILLS. [pART VI. dropped, as not affecting the validity of the primary disposition of his estate.^ Invalid ulterior limitations will not invalidate the primary dispositions of a will.^ And where a testator's intention cannot wholly operate, it must be allowed to operate as far as possible/ The intention of the testator being once ascertained, that intention will be carried out faithfully unless it counteracts public policy or some established rule of law.^ § 474. Later Clause, how construed With an Earlier One. A later clause in a will must be deemed to affirm, not to contra- dict an earlier clause, if such construction can fairly be given. The effort here, and a natural one, is to reconcile the instrument in all its parts and make the disposition a consistent whole; for in construing doubtful language that interpretation should be pre- ferred which gives consistency to the whole will, rather than one which works inconsistency. Ambiguous expressions, therefore, though capable of limiting a plain gift already made, will not be readily allowed this effect.^ And on the other hand, an express limitation in a bequest or devise should not be controlled by impli- cation drawn from other provisions in the will, if the latter by any fair intendment can be reconciled with the former." In short, a will is not to be read so as to contradict itself, if its apparent contradictions can be reconciled by bringing the various clauses together, and deducing a consistent interpretation from the whole context.* But the mere position of particular sentences or clauses is by no means conclusive as against the real sense of the whole will ; 2. Oxley v. Lane, 35 N. Y. 340. 6. Temple v. Sammis, 97 N. Y. 526. 3. Tiers v. Tiers, 98 N. Y. 568. 7. Ward v. Amory, 1 Curt. 419. 4. Finch, 139; 2 Jarm. Wills, 843; 8. White v. Allen, 81 Ind. 224; Lepage v. McNamara, 5 Iowa, 124. Lucas v. Duffield, 6 Gratt. 456 ; 10 La. 5. See Hadley v. Hadley, 100 Tenn. Ann. 164; Norton v. Woodbury, 153 446, 45 S. W. 342; GafTield v. Plum- N. Y. 243, 47 N. E. 283; Cornet v. ber, 175 111. 521; Reilly v. Infirmary, Cornet, 154 S. W. 121, 248 Mo. 184; 87 Md. 664, 40 A. 894; 168 111. 273; 141 N. W. 60. Mulvane v. Rude, 146 Ind. 625, 45 N. E. 1060; § 466, supra. 594 CHAP. I,] GENEKAL RULES OF CONSTRUCTION. § 476 while at the same time position is a circumstance of weight where some general expression of the will yields, as it should, to a clear and specific provision found elsewhere." § 474a. Same Words in a Clause applied to Different Subjects or Objects. It will not be presumed, in the absence of any showing to the contrary, that a testator intended the same words in a particular clause of the will, to have a paticular effect with respect to one subject or object, or to one class, and a different etlect as to another subject or object or another class.^ § 475. General Description, whether limited by Particulars. A similar rule is that, where the whole will indicates nothing to the contrary, a gift by words of general description is not to be limited by a subsequent attempt at a particular description.^ But this presumption is overcome by an expression of intent to the contrary, as gathered from the whole instrument.^ § 476. Regard paid to the Predominant Idea of the Will. In construing a will, the predominant idea of the testator's mind, if apparent, is heeded, as against all doubtful and conflicting provisions which might of themselves defeat it. The general intent and particular intent being inconsistent, the latter must be sacrificed to the former. If, for instance, the primary object of 9, A general residuary clause may favored at this day. Morrison v. be made to yield to a specific incon- Truby, 145 Penn. St. 540, 22 A. 972; sistent provision, especially if the Heilman v. Heilman, 129 Ind. 59, 28 latter be subsequent in recital. Mar- N E. 310; 51 A. 1056, 94 Md. 773; kle's Estate, 187 Penn. St. 639, 41 A. 60 A. 789, 311 Penn. 397; Brown v. 304. And see 181 Penn. St. 349, 37 Tuschoff, 138 S. W. 497, 335 Mo. 449. A. 516; 49 N. J. Eq. 98, 23 A. 125; 2. Martin v. Smith, 124 Mass. Ill; 73 S. W. 262, 173 Mo. 572; 102 N. E. Freeman v. Coit, 96 N. Y. 63; next c. 173, 259 111. 194. 3. Urich's Appeal, 86 Penn. St. 1. EA^en with regard to both per- 386, 27 Am. Rep. 504; Andrews v. sonal and real property embraced Schoppe, 84 Me. 170, 24 A. 805; under the clause of disposition, the Allen v. White, 97 Mass. 504. same general effect of construction is 595 § 477 LAW OF WILLS. [PART VI. a son's will was to provided for his mother through the interposition of executors and trustees, the death of these latter will not cause that provision to fail.* All such subordinate provisions bend in construction to the testator's main purpose and should, if possible, help carry it out, not obstruct it; and undue stress should not be laid upon particular expressions or detached clauses.'* § 477. Courts will change or mould Language, etc., so as to give Intention Effect. Indeed, courts have gone so far in aiding the intention of a testator as even to change or mould the language of a will in con- struction, so as to carry out what it appears from reading the whole will that the testator actually intended.® They have discarded words as surplusage which were senseless as they stood expressed in the instrument.^ They have rejected or modified expressions in the will which were inconsistent with the main intention, or which indicated an intention which the law would not permit to take effect.^ They have transposed words so as to bring out the natural sense and the testator's obvious meaning.^ They have supplied words with the same object in view.^ They have dealt lightly with 4. 3 Dem. 307. Wright v. Denn, 10 Wheat. 204, 6 L. 5. Stimson v. Vroman, 99 N. Y. Ed. 303. 74, 1 N. E. 147; 152 Fed. 775; Powell 8. See Mellor v. Daintree, 33 Ch. D. V. Beebe, 133 N. W. 8, 167 Mich. 306; 198, 206. 84 A. 765, 236 Penn. 235; Hitchcock 9. 2 Ch. Ca. 10; Hob. 75; 2 Ves. V. Hitchcock, 35 Penn. St. 393; Work- 32; 1 B. & Aid. 137; Ferry's Appeal, man v. Cannon, 5 Harr. 91; Thrasher 102 Penn. St. 207; Hornby, Ex parte, V. Ingram, 32 Ala. 654; Rose v. Mc- 2 Bradf. 420; Linstead v. Green, 2 Hose, 26 Mo. 590. Cf. Pickering v. Md. 82; Baker v. Pender, 5 Jones L. Langdon, 22 Me. 413. See Lyon v. 351; Christie v. Phyfe, 19 N. Y. 344; Safe Deposit Co., 87 A. 1089, 120 Md. O'Neall v. Boozer, 4 Rich. Eq. 22; 1 574 (relation of introductory to re- Jarm. Wills, 500; 143 N. W. 1050, 155 eiduary clause). Wis. 46. 6. 1 Jarm. Wills, 499, 503; 2 lb. 1. Cloland v. Waters, 16 Ga. 496; 842; Cox v. Britt, 22 Ark. 567; Met- Dew v. Barnes, 1 Jones Eq. 149; Au- calf V. Framingham Parish, 128 lick v. Wallace, 12 Bush. 531; Heller- Mass. 370. man's Appeal, 115 Penn. St. 120, 8 7. 2 Vos. 277; 1 Jarm. Wills, 479; A. 768; Mellor v. Daintree, 33 Ch. D. 12 East, 515; 1 B. & Aid. 137; 198; 1 Jarm. Wills, 486; 7 T. R. 596 CHAP. I.] GENEKAL RULES OF CONSTEUCTION. 477 errors of syntax and punctuation, especially where the testator did not write out his own will.^ They have constantly read " and " as though it were " or," and vice versa/ and in various other instances given words and expressions a meaning quite different from their literal acceptation. They have even gone so far as to change words which evidently were miswritten, so as to give a meaning precisely opposite to what the will expressed on its face; as in reading " dying without issue " as though it were " dying with issue," ^ or " donee " as though it were " donor," ^ or " if " as meaning " when." « In all such instances, however, the avowed object of the inter- preting court has been to dispel the effect of some careless, in- accurate, or ignorant use of language on the part of the testator or his scrivener, and make the will interpret what he obviously meant, just as though his ideas had been clearly and correctly 437; 6 East, 486; 7 Gill and J. 327; 166 111. 318, 46 N. E. 1113; 7 Houst. 488. In an early case the words " without issue " were supplied where one devised to A and his heirs, and if he died, then over. 1 And. 33. But w^ords are not to be substituted arbi- trarily. May V. Sherrard, 115 Va. 617; Bennett v. Bennett, 136 S. W. 878, 143 Ky. 380. And see post, c. 3. 2. 87 Penn. St. 51; 19 S. C. 297, 45 Am. Rep. 777; 151 N. Y. 269, 45 N. E. 869; Turner's Will, 101 N. E. 905, 208 N. Y. 261; 131 N. Y. S. 525 (comma treated as semi-colon) ; 48 La. Ann. 1038. 3. Doe V. Watson, 8 How. 263; 1 Jarm. Wills, 505, 517, and cases cited. 4. 8 Mod. 59; 2D. M. & G. 300; 2 Jarm. Wills, 843. In various in- stances where the testator uses the phrase " without issue," the court has read " without leaving issue." 1 Jarm. Wills, 487; Amb. 112; 13 Ves. 476; 1 Harr. & G. 111. For other changes, see 1 Jarm. Wills, 503-524, and notes. " Between " may thus be read as though written " among." Hick's Estate, 134 Penn. St. 507, 9 A. 705. " Tlien " is construed favorably to intent in Perkins's Appeal, 108 Penn. St. 314, 56 Am. Rep. 208. " Child " may be read " children." 56 N. J. Eq. 507. 5. White V. Institute of Technol- ogy, 171 Mass. 84, 50 N. E. 512. And see Home v. Noble, 172 U. S. 383, 43 L. Ed. 486; Eidt v. Eidt, 96 N. E. 729, 203 N. Y. 325; 108 Me. 417; 64 A. 461. 71 N. J. Eq. 327; 73 N. E. 556, 187 Mass. 480; 137 N. Y. S. 847; Neal v. Hamilton Co. 73 S. E. 971, 70 W. Va. 250; 134 S. W. 906, 142 Ky. 472; Keuhle v. Zimmer. 94 •N. E. 957, 249 111. 544 (as to para- graphing). 6. 82 A. 781, 233 Penn. 540. See 135 P 682, 90 Kan. 545 ("de- scend " as " go to.") 597 § 477 LAW or WILLS. [part VI. expressed in the instrument. But •changes like these will not be made upon any mere conjecture, however reasonable, of what the testator meant, in opposition to the plain sense of the instrument as it stands.^ All other things being equal, the natural and literal import of words and phrases is presumed to have been intended ; ^ and each word is to have its effect, if the general intent be not thwarted thereby.^ l^o words of a will are to be rejected if any- intelligent meaning can be given them.^ Xor will language be distorted or meddled with, whose meaning is clear, for the sake of correcting that which extrinsic proof might show to have been a mistake of fact on the testator's part ; nor words supplied which it is not evident that the testator intended to use.^ To change or supply words for the sake of creating an intent or of making the will different from what the testator by the will's own language meant it to be is certainly inadmissible; but the moulding or altering must be in furtherance of the purpose expressed or indicated in the context.^ A devise or bequest under the will, as stated, is not to be distorted into something greater or different upon any suggestion that partial intestacy must otherwise result; neither can a court create by construction a new and valid will for a testator nor render valid his invalid disposition.* 7. 2 Jarm. Wills, 843; 18 Ves. 368; tended, this mistake will not defeat 2 Mer. 25; 1 Brev. 414; Simpson v. the bequest, but the court will read Smith, 1 Sneed, 394; Caldwell v. Wil- the name as it ought to stand. Hill lis, 57 Miss. 555. v. Downes, 125 Mass. 509; Caldwell 8. 2 Dem. (N. Y.) 534; 5 J. J. v Willis, 57 Miss. 555; Eastwood v. Marsh. 600; 3 La. Ann. 168. Lockwood, L. R. 3 Eq. 487. For er- 9. 8 Port. (Ala.) 380. roneous recital in a will construed aa 1. Seibert v. Wise, 70 Penn. St. truly intended, see Bagot Re, (1893) 147. 3 Ch. 348. And see 60 A. 682, 73 N. H. 2. 6 Munf. 114; Listen v. Jenkins, 237; 50 S. E. 41, 122 Ga. 183; Dee v. 2 W. Va. 62; 73 Miss. 188, 18 So. Dee, 72 N. E. 429, 212 111. 338 (General 393, 55 Am. St. Rep. 527. provision gives way to specific one) : 3. 37 N. J. Eq. 5. As to legacies' 73 N. E. 672, 187 Mass. 562; 80 A. see (Vol. IL) E.xrs. & Adms. §§ 1458- 133, 31 R. I. 39, 127 N. Y. S. 1475. It is a familiar rule that where 680; Kahn v. Tierney, 94 N. E. tlio name of a legatee is erroneously 1095, 201 K. Y. 516 (where word is slated in a will, and there is no rea- used incorrectly). sonable doubt as to the person in- 4. Oldham v. York, 99 Tenn. 68, 598 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 478 § 478. Treatment of Repugnant Parts. But while varying and contiicting clauses should, if possible, be reconciled so as to make each clause operative, it has often been ruled that in case of invincible repugnancy, the latter clause ought to prevail over the former.'' This doctrine appears to be deduced from the principle, fair enough in the comparison of expressions of different date, that the testator's latest expression should be preferred to all previous ones; a principle, however, "which must be somewhat strained when applied to the various consecutive parts of what has been obviously shaped out to stand as the one full and contemporaneous expression. Such a rule, therefore, as here applied, is properly a last and limited resort, and when all efforts at reconcilement fail ; for the intention of the testator is to be gathered from a consideration of the whole contemporaneous wall and a comparison of the different terms, and effect given to this intention throughout if it can be fairly and legally done ; and one's general or predominant intention, if discoverable, must prevail over a particular or subsidiary one.^ The repug- nancy Avhich will justify the rejection of a word or clause from a will must arise upon the face of the will.^ It is only when the 41 S. W. 333; Walkerly's Estate, 108 233 Penn. 540; Spreckles' Estate, 123 Cal. 627, 41 P. 772, 49 Am. St. Rep. P. 371 162 Cal. 559; 78 A. 320, 83 97; 48 La. Ann. 1036. Conn. 654; 136 N. W. 1001, 94 Neb, 5. 1 Jarm. Wills, 472; L. R. 6 C. 654; 145 S. W. 1135, 148 Ky. 43. P. 500; 6 Ves. 100; Crone v. Odell, 6. 3 Ves. Jr. 103; Constantine v. 3 Dow, 61; Homer v. Shelton, 2 Met. Constantine, 6 Ves. 100; Homer v. 202; Thrasher v. Ingram, 32 Ala. Shelton, 2 Met. 202; Covenhoven v. 645; 31 Hun, 119; Pratt v. Rice, 7 Shuler, 2 Paige, 122, 21 Am. Dec. 73; Cush. 209; Smith v. Bell, 6 Pet. 84, Hunt v. Johnson, 10 B. Mon. 342; 8 L. Ed. 328; 3 Whart. 162; Sherrat 11 Gill & J. 185, 35 Am. Dec. V. Bentley, 2 M. & K. 149; Orr v. 277; Robert v. West. 15 Ga. Moses, 52 Me. 287; Evans v. Hud- 122; Walker v. Walker, 17 Ala. son, 6 Ind. 293; 74 Me. 413; Heidel- 396; Pickering v. Langdon, 22 Me. baugh V. Wagner, 72 Iowa, 601, 36 430; Van Veehten v. Keator, 63 N". N. W. 439; Hendershot v. Shields, Y. 52; 65 Penn. St. 388; Baxter v. 42 N. J. Eq. 317, 8 A. 86; Adams v, Bo\\^er, 19 Ohio St. 490; § 476. M'assey, 76 N. E. 916, 184 N. Y. 62; 7. See 20 Ohio St. 490. 64 N. E. 545, 197 111. 554; 82 A. 781, 599 § 478 LAW OF WILLS. [pART VI. context itself is a source of obscurity that courts, rather than be driven to suffer the will to fail, accord this favor to an expression locally posterior in the instrument, each expression being suffi- ciently intelligible when taken by itself, and sacrifice the prior clause accordingly.* The effect, though usually to limit or qualify a former gift, may be to destroy it altogether. If any word or expression has no intelligible meaning, or is absurd, or repugnant to the clear intent shown in the rest of the will, it may be rejected.^ ^or is a clear gift or devise in one part of the will to be cut down or out by indefinite, doubtful or ambig- uous expressions in another part or upon any conjecture; but the intention to cut down or out, or the inconsistent provision, must be indicated with at least reasonable certainty, and by the use of language sufficiently imperative.^ In various instances inconsist- ent gifts or devises have been reconciled in construction, by reading the later one as referring to a possible lapse of the former one or as dependent upon some contingency which is deducible from the instrument taken as a whole.^ And after some dispute the English cases sustain the theory, that where two devises in fee are given of the same property, a sacrifice of the former may be avoided by 8. 1 Jarm. Wills, 472-485. This 291; Yost v. McKee, 176 Penn. St. rule, though artificial, is of ancient 381, 53 Am. St. Rep. 674, 35 A. 140; standing. "Cum duo inter se pugnan- 153 N. Y. 134, 47 N. E. 274; 98 tia reperiuntur in testamento, ulti- Tenn. 190, 39 S. W. 12; 116 Mich, mum ratum est." Co. Lit. 112 6. 180, 74 N. W. 472; Pitts v. Camp- 9. 12 Mass. 537, 7 Am. Dec. 99; bell, 55 So. 500, 173 Ala. 604; 137 N. 1 Jarm. Wills, 480; Needham v. Ide, Y. S. 319; Boulevard Re, 79 A. 716, 5 Pick. 510; 2 Desaus. 32; Holmes v. 230 Penn. 49. Cradock, 3 Ves. Jr. 521; Davis v. A positive intent to cut down may Boggs, 20 Ohio St. 550. be manifest and hence effectual. 116 1. 1 Jarm. Wills, 479; Price v. Mich. 180, 74 N. W. 472; 107 111. Cole, 83 Va. 343; Meyer v. Cahen, 443; Pope v. Pope, 95 N. E. 864, 209 111 N. Y. 270, 18 N. E. 852; Hoch- Mass. 432; Hoopes's Estate, 80 A. stedler v. Hochstedler, 108 Tnd. 506; 537, 231 Penn. 232. And see 84 A. 119 Ind. 525, 12 Am. St. Rep. 436, 765, 230 Penn. 235; 68 S. E. 966. 87 22 N. E. 4; Ilsley v. Tlsley. 80 Me. S. C. 55; 93 N. E. 330, 247 111. 586; 23; 12 A. 796; Wilmoth v. Wilmoth, 98 Tenn. 190. 34 W. Va. 426, 12 S. E. 731; Banzer 2. 5 B. & Aid. 536; Ley v. Ley, Z V. Banzer, 156 N. Y. 429, 51 N. E. M. & Gr. 780. And see 5 Ex. 107. GOO CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 479 considering that the devisees take concurrently ; ^ and that of a chattel not utterly indivisible, the legatees inconsistently men- tioned shall each have a moiety.* Where a will can be construed as consistent with itself, the disastrous effect of repugnancy is avoided."" A clear gift or devise is not to be controlled by the reasons assigned for making it ; nor by any inaccurate words of reference or recital which may subsequently occur in the will, nor by mere inference and argument in general.® A court, moreover, should disincline to base the rejection of a clause for repugnancy upon another clause which would thereby be rendered void.^ § 479. Favor to Heir or Next of Kin, considered. Against the fundamental maxim that the intention of the tes- tator shall prevail comes in conflict another primary one, namely, that the heir-at-law shall not be disinherited by conjecture, but only by express words or necessary implication.* This latter rule of presumption has been long asserted by the courts in England and America ; ^ but the policy of modern times extends such a pre- sumption rather in favor of heirs and next of kin, generally, — that is to say, to any one or all closely related who would, independ- 3. Sherrat v. Bentley, 2 M. & K. plaint." Grier, J., in Smith v. Shri- 165. ver, 3 Wall. Jr. 219. The English 4. lb. courts have asserted this rule very 5. Stebbins v. Stebbins, 86 Mich. strongly in times past. " There is 474, 49 N. W. 294. hardly any case," says Lord Hard- 6. 1 Jarm. Wills, 483-485; 2 lb. wicke, "where implication is of ne- 841; Cole V. Wade, 16 Ves. 27; cessity; but it is called necessary be- Cowp. 833 ; 8 Ves. 42 ; Terry v. Smith, cause the court finds it so hard to an- 42 N. J. Eq. 504, 8 A. 886; (1896) swer the intention of the devisor." 2 Ch. 353. Coryton v. Helyar, 2 Cox, 340, 348. 7. Greenwood v. Greenwood, 178 And see Jarman's rule V. post. Ill- 387. 9. 2 Stra. 969; 5 T. R. 558; 18 Ves. 8. " That the application of the lat- 40; 1 Jarm. Wills, 532; 1 lb. 841; ter rule has had the effect of defeat- Howard v. American &c. Society, 49 ing the intention of the testator in Me. 288; Bender v. Dietrick, 7 W. & ninety-nine cases out of a hundred, S. 284; Wright v. Hicks, 12 Ga. 155,,, has often been a subject of com- 56 Am. Dec. 451. 601 § 480 LAW OF WILLS. [pART VI. entlv of a will, have taken the property in question under the appropriate statutes of descent and distribution ; ^ though doubt- less originally the technical heir-at-law, he who after his ancestor's death intestate had a right to the lands of which such ancestor was seised found himself the law's especial favorite. To such a maxim is due a variety of precedents which we shall note hereafter ; and this artificial presumption chief of all, that any devise of lands to a person without words of limitation, even though to the testator's own spouse, confers an estate for life only.^ It may be safely laid down, that of two equally probable inter- pretations of a will that shall be adopted which prefers the family and kindred of the testator to utter strangers.^ And where a testator gives the whole or part of his estate to his next of kin, and leaves the proportions doubtful, it is natural to suppose that he meant the statutory form of distribution to prevail.^ Hence in case of doubt a construction of the will, as to property, which con- forms most clearly to the general statutes of descent and distribu- tion should prevail.^ In general, it has been ruled that an heir cannot be disinherited imless the estate is given by the will to some one else.® § 480. The Same Subject: Favor to Children and Lineal Descendants, etc. Thus it is particularly as to one's own children or lineal de- 1. 1 Jarm. Wills, 339, 623; 2 lb. Wheat. 204. See this presumption 841; 4 Beav. 318. Jarnian speaks of discussed in § 483, post. "the heir or next of kin." And see 3. Downing v. Bain, 24 Ga. 372; Goodwin v. Coddinfjton. 154 N. Y. Wood v. Mitcham, 92 N. Y. 375. 283. 48 N. E. 729; Wood rufT v. White, 4. Dunlap's Appeal, 116 Penn. St. 81 A. 1134, 79 N. J. Eq. 225; 115 P. 500, 9 A. 936. 296. 15 Oreg. 95; Grothe's Estate. 78 5. 62 Conn. 393, 499, 26 A. 482, 27 A. 88, 229 Penn. 186; 95 N. E. 471, A. 77. 250 111. 481; 131 N. W. 909, 89 Neb. 6. 85 Va. 459; 45 N. E. 259; 422. See Rules V. & VI. in foot note, Lawrence v. Smith. 163 111. 149, post, § 492. 166; Zimmerman v. Hafer, 81 Md. 2. King V. Aokormnn. 2 Black, 408. 347, 32 A. 316; CoflFman v. CofTman, 17 L. Ed. 292; Wright v. Donn. 10 85 Va. 459, 17 Am. St. Rep. 69, 2 L. G02 CITAP. I.] GENERAL RULES OF CONSTRUCTIOII^. § 480 scendants ; and the nearer by blood to the testator is the heir or next of kin in natural relationship, the less do courts incline to construe the will as though the maker were devoid of natural affection, not to add a sense of duty. Our modern legislation, as already shown, fortifies the general presumption that the name of any child omit- ted from the will was accidentally left out, and not purposely; and thus are the harsh consequences of disinheritance avoided if only a reasonable doubt remain of the testator's real intention. It is not to be readily assumed therefore that a will purposes disinheriting a son or a daughter.^ Posthumous offspring receive indulgent con- sideration, wherever a will comes up for construction.^ In general the testator's intention to disinherit an afterborn child must be in some way indicated in the will, if not positively expressed.^ Lineal issue, too, are presumably favored in construction as against all collaterals.^ Indeed, under the Louisiana code a testator cannot dispose of more than one-fifth of his property to the exclusion of a child ; but the child becomes the " forced heir," so to speak, of the residue.^ Infant children, most of all, deserve a court's solicitude ; for those at least of tender years can hardly be thought to have in- curred the parent's just resentment, or to deservedly forfeit what naturally belongs to them ; and being themselves unable to protect their own inheritance, the tribunal of justice should secure those rights for them where the rules of interpretation permit it. Grant- ing that the legal obligation of a father to support his young R. A. 848, 8 S. E. 672; 138 N. W. disinherits children, whether after- 629, 151 Wis. 231: NicoU v. Irby, 77 born or not. 165 111. 561, 56 N. E. A. 957, 83 Conn. 530. 240; Heeb v. Heeb, 93 Iowa, 416, 61 7. Weatherhead v. Baskerville, 41 N. W. 934; 101 Tenn. 712, 50 S. W. How. 329, 13 L. Ed. 717; Blagge v. 760; Hutchinson v. Hutchinson, 95 Miles, 1 Story, 426; supra, § 20. N. E. 143, 250 111. 170; Villar v. Gil- 8. Moffit V. Varden, 5 Cr. C. C. bey, (1907) A. C. 139 (unborn child). 65S. 1. Aspy V. Lewis, 152 Ind. 493, 52 9. Lurie v. Radnitzer, 166 111. 609. X. E. 756. 46 N. E. 116; of. 124 K C. 200. But 2. Patterson v. Gaines, 6 How. 550, a will clearly drawn, which gives all 12 L. Ed. 553. See §§ 424-426. absolutely to the surviving spouse, 603 § 481 LAW OF WILLS. [pART VI. children is not continued upon his estate after his death, yet every true parent recognizes the moral obligation ; and so natural is this feeling that courts may well presume that the parent made his will under its influence.^ § 481. The Same Subject. ■ But by children, lineal descendants or heirs and next of kin gen- erally, in the present connection, we mean those who are legitimate. 'No such presumption arises in favor of a testator's illegitimate relatives; but, in the absence of clear intent on his part to the contrary, those who are legitimate shall take the preference.* But among one's legitimate and legitimized offspring, American policy favors the presumption that no one shall be favored above the rest, but all shall share equally in the parent's bounty, unless, of course, the will in question shows a different intention. As concerns a testator's gifts, however, to other parties, their children, being no issue of his own, are not to be brought within the scope of his bounty by any mere implication of the will.^ And as among a testator's collateral relatives or strangers, favoring presumptions carry little or no weight against the testator's apparent meaning.® § 481a. Favor to the Surviving Spouse. As wills have, in our law, always favored the surviving husband, 3. See Vail v. Vail, 10 Barb. 69; 6. Jodrell Re, 44 Ch. D. 590; afF. Weatherhead v. Baskerville, 11 How. App. Cas. (1891) 304. 329, 13 L. Ed. 717. As to an adopted child, see Wallace 4. See Appel v. Byers, 98 Penn. St. v. Noland, 92 N. E. 956, 246 111. 535 479; Scholl's Estate, 100 Wis. 650, (statute policy followed); 194 Mass. 76 N. W. 716. But by plain reference 540; 61 A. 598, 27 R. I. 209, 495; in the will, legitimate and illegiti- Warden v. Overman, 135 N. W. 649, mate children may be placed on an 155 Iowa, 1. equal footing. Stewart v. Stewart, 31 See, further. Pierce v. Knight, 64 N. J. Eq. 398; (1897) 2 Ch. 208. 238; N. E. 692, 182 Mass. 72 (after-born § 534; (1905) P. 37; Central Trust children of nephew or niece); 58 So. Co. V. Skillin, 138 N. Y. S. 884 (the 141, 130 La. 442 (children of difTer- intent of the will controls). See, also, ent marriages) ; Schapiro v. Howard, § 534, post. 78 A. 58, 113 Md. 3G0; § 534, post. 5. See Rawlins's Trusts, 45 Ch. D. 299. G04 CHAP. I.] GENERAL RULES OF CONSTRUCTIOX. § 482 SO far as any testamentary disposition by the wife was concerned, so, too, our latest decisions, in America at least, indicate a growing disposition to liberally favor in construction the surviving wife, even as against the common offspring of the marriage.^ § 482. The Same Subject; Deeper Principle favors what is Just and Natural, This strict rule in favor of the " heir-at-law " is of feudal origin ; and modern instances are not wanting, in which eminent judges, and those particularly of our own country, show a disposition to repudiate it in favor of the simple test of intention under the par- ticular will.* But the stability of land titles and the force of set- tled precedents in the jurisdiction where lands which are devised happen to lie most needs counteract and check such a disposition. It is undesirable, certainly, at this day, for an American court to distort and violate the provisions of a will, well ordered and well expressed, out of an undue sanctity for real estate and the ancient privilege of inheriting it ; yet, as we apprehend, this maxim which has so long offset a testator's real wishes, has a deeper and more lasting foundation in human experience. Our reference to child- ren and the natural claims of kindred may confirm this impression. And the broader principle of law appears to be this : that what- ever the policy of the age and jurisdiction for the time being may pronounce unwise or unjust, even though not really illegal, shall be presumed against, in the construction of a will, unless the plain intention of the testator appears to the contrary; a maxim which may serve for courts in the present and future as well as the past, and through all the shifting mutations of public authority or public opinion. It has been shown that testaments may stand in probate which are harsh, unkind, unnatural, partial, or foolish in their 7. Heeb v. Heeb, 93 Iowa, 416, 61 Estate, 88 A. 432, 241 Penn. 253; jSr .W. 932; Hawhe v. Chicago R., 165 143 N. W. 1050, 155 Wis. 46. 111. 561, 46 N. E. 240; Moffett v. 8. Taney, C. J., in Bosley v. Bos- Elmendorf, 152 N. Y. 475, 57 Am. ley, 14 How. 390, 397, 14 L. Ed. 468; cSt. Rep. 529, 46 N. E. 845; Moore's King v. Ackerman, 2 Black, 408, 17 L. Ed. 292. 605 § 483 LAW OF WILLS. [pAKT VI. provisions, if not the product of a mind insane or under coercion, — in short, that one may do as he wills with his own, provided he does what is not unlawful ; ^ but such wills are prejudiced in their ad- mission, notwithstanding; and so, too, when interpreting a will, the presumption should be in favor of a disposition to do what was natural, fair, and reasonable, unless such a construction would de- feat the testator's plain intention in the given case. For we can- not deny that the intention of a testator, though harsh and unrea- sonable, must guide, when clearly expressed, if it violates no prin- ciple of law or morality.^ § 483. Devise without Words of Limitation; Heir as against Devisee. With regard to a devise Avithout words of limitation the heir-at- law is less favored in construction than formerly. The old rule stood that a devise of lands to A simply, conferred an estate for life only, unless an intention was disclosed in the will to the con- trary; and the rule was the same where the devise to A was of " lands, tenements, and hereditaments." If, therefore, the words of the testator denoted only a description of the specific land or estate, — as if he devised a certain farm to A, or to A and his assigns, — only a life estate would pass.^ But this rule operated very unjustly; and the courts showed much astuteness to avoid an interpretation which in many in- stances must have subverted the testator's purpose. English pre- cedents established that a devise of land to A " forever " might pass the fee ; ^ or a devise to A, his executors and administrators ; * 9. Supra, §§ 22, 77, 165. And see Cowp. 306; Hopewell v. Ackland, 1 Scarborough v. Baskin, 44 S. E. 63, Salk. 239 ; Wright v. Denn, 10 Wheat. 65 S. C. 558; Robinson v. Martin, 93 238, 6 L. Ed. 312; Van Alstyne v. N. E. 488, 200 N. Y. 159, 86 A. 899; Spraker, 13 Wend. 5S2; Lummus v. Williams's Succession, 61 So. 852, Mitchell, 34 N. H. 45; King v. Ack- 132 La. 865. erman, 2 Black, 408, 17 L. Ed. 292 1. See Brearley v. Brearlcy, 9 N. J. 3. Co. Lit. 96. Eq. 91. 4. Rose v. Hill, 3 Burr. 18S1. 2. Co. Lit. 96; Hogan v. Jackson, 006 CHAP. I.] GENEEAL RULES OF CONSTRUCTIOlSr. § 484 or a devise of land to be at the disposition of A, or to be kept in his name and family.^ In this country, a devise after a life estate, especially if made to one heir, with an evident intention of excluding the other heirs, has in several instances been held to pass a fee.^ And one devise made simply has been supported as a devise in fee by coupling it with another in the will which was used with suitable words of limitation.^ Indeed, in many States it has been held that when- ever an intention to dispose of the fee can by any fair inference be drawn from the will, the technical rule must be excluded ; and that very slight circumstances will be laid hold of as indicating such an intention.^ And the fact that real and personal estate are given together by the same clause and in the same language and con- nection has been held of great moment if not conclusive as passing a fee.* § 484. The Same Subject; "Estate," etc.; Bffect of a Charge, Gift over, or Trust. Lord Mansfield and others checked further this sacrifice of the intended devisee to the heir, by ruling that whenever the words of devise denoted the quantum of interest or property that the tes- tator had in the lands devised, then the whole extent of such in- terest would pass to the devisee. And hence the established ex- ception that the word " estate " or " estates " sufiiciently passed the fee simple of land, although accompanied by words of locality or 5. Wood V. Wood, 1 B. & Aid. 518. Ind. 282; Charter v. Otis, 41 Barb. And see Oates v. Brydon, 3 Burr, 529. 1895; Wyatt v. Sadler, 1 Munf. 537; 8. Hawkins Wills, 131, Swords' Bool V. Mix, 17 Wend. 127; Clayton American note; Lummus v. Mitchell, V. Clayton, 3 Binn. 483. 34 N. H. 46; Cleveland v. Spilman, As to considering non-resident 25 Ind. 99. alienage in construction, see Green- 9. lb.; Packard v. Packard, 16 wood V. Greenwood. 178 111. 387. Pick. 193 ; Mulvane v. Rude, 146 Ind. 6. Plimpton v. Plimpton, 12 Cush. 476, 45 N. E. 659. Under the Iowa 463; Butler v. Little, 3 Greenl. 241; code an heir is disinherited when- 1 Grant Gas. 240. Cf. 1 Barb. 112. ever an ancestor's devise chooses to 7. Cook V. Holmes, 11 Mass. 532; omit providing for him. 74 Iowa, Neide v. Neide, 4 Rawle, 82; 7 279. 607 § 484 LAW OF WILLS. [pART VI. occupation ; and this notwithstanding that " estate " is an equiv- ocal word and might mean either the land itself or the testator's interest in it.^ A devise of " all mj estate called C," etc., therefore, or other similar expression, even though applicable in a strict sense to corpus rather than interest, has thus been liberally applied in the devisee's favor,^ in spite of an occasional check where the word " estate " is not an operative word occurring in the gift itself, but introduced somewhat later in the will by way of reference.^ The words " effects " as used in a devise of " all my effects real and personal," or the word or expression " property," " lands," " my right," " all I have," and the like, have also been interpreted by way of exception as denoting the quantum of interest bestowed in the devise.* So, too, has an indefinite devise been enlarged by the imposition of a charge, however small, on the person of the devisee or on the quantum of his interest; though not by the mere subjection of the devise to a charge.^ A gift over in the event of the devisee dying under age has also been held to make the devise an effectual fee simple by intent ; ^ or a devise with power to dispose of the fee.^ And once more has the heir been excluded in construction, when^ ever the estate in fee is devised to trustees in trust for A, in- definitely, and the purposes of the trust require the whole legal fee to be in the trustees ; for here the beneficial interest in fee goes completely to A, and there is therefore no resulting trust for the heir.* 1. White V. Coram, 3 K. & J. 652; 5. Stevens v. Snelling. 5 East, 87; Child V. Wright, 7 East, 259; Lam- Burton v. Powers, 3 K. & J. 170. bert V. Paine, 3 Cranch, 97; Haw- 6. Burke v. Annis. 11 Hare, 232; kins Wills, 131-133. 3 Burr, 1618. 2. lb. 7. Shaw v. Hussey, 41 Me. 498; 1 3. Cf. Burton v. White, 1 Exch. Harr. 27; Helmer v. Shoeiuaker, 22 535; Leland v. Adams, 9 Gray, 171. Wend. 139. 4. 22 L. J. Ch. 236; 4 Wash. C. C. 8. 8 T. R. 597; Knight v. Selby, G45; Nicholls v. Butcher, 18 Ves. 3 M. & G. 92; Moore v. Clcghorn, 12 193; 3 Sim. 398; 6 Ohio St. 488; 9 Jur. 591; 31 L. J. C. P. 25; Haw- Ponn. St. 142; Chamberlain v. Ow- kins Wills, 134-138. ings, 30 Md. 453. G08 CHAP. I.] GENERAL RULES OF CONSTHUCTION. § 486 § 485. The Same Subject : Modern Statute Rule of Construction. This refilled constriietion in favor of the heir, together with the refinements of exception built upon it, now gives way to the modern rule of interpretation as defined in the English Act of Victoria (1837) and corresponding enactments ■ throughout the United States, many of them dating much earlier.^ This modern rule treats a devise of lands, though without words of limitation, as passing the fee simple to the devisee, unless an intention appear to the contrary/ The natural scope of the will, as gathered from all its parts, thus settles in fine the question whether or not a devise in fee or such other complete interest as the testator had power to dispose of shall pass, or instead a mere usufruct and temporary enjoyment. § 486. When a Will takes effect; After-acquired Property. A will does not operate or take effect, nor are any rights ac- quired under it, until the death of the testator ; although, doubtless, it may speak for some purposes from the date of execution, and for others from the death of the testator, according to the particular intent manifested in the instrument itself.^ A will, however, is 9. In New Jersey, Virginia, and Iowa, 196; Means v. Evans, 4 Desau. North Carolina, statutes of this de- 242; 21 Tex. 713. scription appear to have preceded the As to the effect of a subsequent formation of the American Union in statute upon one's will, see supra, 1787-89; and a later enactment in § 11. South Carolina was held ( 4 M'cCord, The general rule appears to be that 476) to merely affirm the common the will shall speak rather from the law in that State. Hawkins Wills, date of the testator's death than from 139, note by Swords. And see 146 the date of execution, unless its lan- Ind. 476, 45 N. E. 659, 80 N. E. 249, • guage may fairly be construed to the 225 111. 408. contrary. Gold v. Judson, supra. But 1. Stat. 1 Vict. c. 26, § 28, post; intention governs after all; and if (1894) App. Cas. 125; Gunning's Es- the will uses the word "now," or a tate, 83 A. 60, 234 Penn. 139. verb in the present tense, or other 2. 1 Jarm. Wills, 318-337; 2 ib. expression pointing at the present, it 840; Wakefield v. Phelps, 37 N. H. must be construed accordingly. 1 295; Fox v. Phelps, 17 Wend. 393; Jarm. Wills, 318, and American note. Gold v. Judson, 21 Conn. 616; 5 It is even possible that the provision 39 609 § 486 LAW OF WI"LLS. [pAET VI. not to be construed, generally speaking, in the light of events sub- sequent to the testator's death.^ The old rule made a devise of land speak imperatively at the date of execution, but a will of personalty presumably at the time of the testator's death. Hence, after-acquired lands did not pass by a devise, even though the testator meant that they should, but required re-execution or a new devise in effect, upon the theory that the devise was in the nature of a conveyance of one's particular real estate. Even a bequest of leaseholds spoke prima facie from the date of the will and did not include after-acquired leaseholds nor a renewed lease.* But our latest legislative policy, English and American, permits after-acquired lands to pass bv will wher- ever the testator appears to have so intended, and he had testa- mentary power to make such disposition.^ A will as to personalty is still presumed to speak or apply to one's personal estate as it shall exist at his death.^ Apart from statutory changes, the rule against passing after- acquired lands (which of course favored the heir-at-law) has gen- erally prevailed throughout the United States ; while, as in Eng- land, a bequest of " all my personal estate " or " the residue of my in a will should, by its express terms, illard Re, 16 R. I. 254; Ruckle v. refer to some expected date or event Grafflin, 86 Md. 627; Hardenbergh v. happening between the date of exe- Ray, 151 U. S. 112. cution and that of the testator's 6. Garrett v. Garrett, 2 Strobh. Eq. death, and require a corresponding 272; Canfield v. Bostwick, 21 Conn, interpretation. See 37 N. J. Eq. 482; 553; Nichols v. Allen, 87 Tenn. 131, Northrop v. Troup, 195 F. 262 (not 9 S. W. 530; Campbell v. Hinton, 150 from date of tlie probate). S. W. 676, 150 Ky. 546; 93 N. E. 3. Carney v. Kain, 40 W. Va. 758, 1120, 199 N. Y. 569; Hazard v. 23 S. E. 650; Gray v. Hattersley, 50 Gushee, 87 A. 201, 35 R. I. 438 (not N. J. Eq. 206, 24 A. 721 from date of will). 4. Supra, § 29 ; Hawkins Wills, 14- Even where the testator's estate was 18; James v. Dean, 11 Ves. 383; largely increased after making the Holt, 248; Girard v. City, 4 Rawle, will by an inheritance of which he 333; Haven v. Foster, 14 Pick. 537; was not aware at his death, all the 2 Story, 327. property will pass as the will pro- 5. Supra. § 29; Girard v. Philadel- vides. Dalrymple v. Gamble, 68 Md. phia, 2 Wall. Jr. 301; Smith v. Ed- 523, 13 A. 156. rington, S Cr. 66; 18 S. C. 94; Lor- 610 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 487 personal estate " meant the personal estate existing at the death of the testator.^ But in almost all of our States, as also under the 24th section of Stat. 1 Vict. c. 26, in England, statutes are now to be found abolishing or modifying the rale of the common law with revspect to the time from which devises of freeholds speak.^ In applying such enactments to particular wills, however, one must carefully consider the time and manner in which the local statute is declared to apply; whether to all wills taking effect after the enactment or only to such as are made subsequently. And two distinct particulars are embraced under such legislation : (1) that after-acquired real estate shall pass by a devise when such appears to have been the testator's meaning; (2) or that power is simply given to dispose of after-acquired real estate.' The preferable rule as to after-acquired property stands thus, with the aid of legislation: that descriptions whether of real or personal estate, or of both together, the subject of gift, refer to and comprise prima facie the property answering to that descrip- tion at the death of the testator ; ^ but that at all events the inten- tion manifested by the will shall prevail.^ The presumption against one's intending a partial intestacy may come in aid of such a rule of construction.^ § 487. Codicil construed vdth the Will. A codicil is a part of a will, but with the peculiar function 7. lb. of the will. Brimmer v. Sohier, 1 8. Supra, § 29; Hawkins Wills, 18, Cush. 133; Wynne v. Wynne, 2 Swan, and Swords' American note. 407; 33 Fed. 812; 69 Iowa, 617, 29 9. lb. The English statute goes far- N. W. 632; Patty v. Goolsby, 51 Ark, ther, and declares that the intent to 61, 9 S. W. 246; Welborn v. Town- speak from the testator's death shall send, 31 S. C. 408, 10 S. E. 96; Haley be presumed, unless a contrary inten- v. Gatewood, 74 Tex. 281, 12 S. W. tion shall appear by the will. 1 25; 92 N. E. 970, 246 HI. 577; Paine Vict. c. 26, § 24; Appx. post. v. Forsaith, 84 Me. 66, 24 A. 590. 1. An express declaration of an in- 2. Dunlap v. Dunlap, 74 Me. 402. tention to dispose of after-acquired As to effect of codicil in carrying property is not necessary ; it is enough after-acquired land, see post, § 487. if it can be inferred from the terras 3. § 490, post. 611 § 487 LAW OF "WILLS. [pART VI. annexed of expressing the testator's afterthought or amended in- tention.* The codicil should be construed with the will itself ; and from its very nature it may, as a context, confirm, alter, or alto- gether revoke an intention expressed in the body of the instrument to which it is annexed.^ A will and codicil are to be construed as one instrument, and are to be reconciled if possible ; ® but if plainly inconsistent, and the more so if the later instrument expressly re- vokes whatever is inconsistent with it, the codicil must prevail ; ' for a later repugnant disposition as against an earlier stands on a footing of presumption far stronger than the later clause in one and the same contemporaneous instrument.^ Yet even here a codicil should be so construed as only to inter- fere with the dispositions made in the will to the extent needful for giving full effect to the codicil.^ And it is held that the deter- mination expressed by a codicil to alter the will in a specified par- ticular, negatives by implication any intention to alter it in other respects.^ While the old rule was in force which denied that a will could convey lands acquired after its execution, the codicil might prove very serviceable in construction with it, because of a codicil's re- 4. Supra, §§ 7, 440. Re, 93 N. E. 1120, 199 N. Y. 569; 96 5. Brimmer v. Sohier, 1 Cush. 118; N. E. 142, 210 Mass. 105. Morley v. Rennoldson, (1895) 1 Ch. 8. So with the latest of two or 449: Lee v. Pindle, 12 Gill & J. 288; more codicils. 88 A. 499, 241 Penn. Armstrong v. Armstrong, 14 B. Mon. 290. And see § 468. 333; Hichcock v. U. S. Bank, 7 Ala. 9. Ives v. Harris, 7 R. I. 413; 5 386; 163 Mass. 130, 132, § 488, supra. Sandf. 467: 2 Jones Eq. 13; Jenkins 6. lb.; Thompson v. Churchill, 60 v. Maxwell, 7 Jonos L. 612. Vt. 371, 14 A. 699; Ward v. Ward, 1. Qiiincy v. Rogers. 9 Cush 291; 105 N. Y. 68, 11 N. E. 373. Lyman v. Morse. 69 Vt. 325, 37 A. 7. Pickering v. Langdon, 22 Me. 1047. 413; 3 Md. Ch. 42; Lee v. Pindle, If it is clear that a trust to which svpra; 138 Penn. St. 104, 22 A. 20; the codicil refers is not the trust Kelley v. Snow, 70 N. E. 89, 185 created by the will, but a separate or Mass. 288; 163 Mass. 130, 39 N. E. independent one, the language of the 1015; 84 A. 765, 230 Penn. 235 codicil alone must be resorted to in (lirought to date of latest codicil); construction of such trust. Thomp- Frclinghuysen v. Insurance Co.. 77 A. son v. Thompson, 140 Mass. 28, 2 N. 98, 31 R. I. 150; Farmers Trust Co. E. 119. 612 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 488 publishing force.^ Both will and codicil being taken as one entire instrument, a codicil which was so executed as of itself to be cap- able to pass land, amounted prima facie to a republication of the will and brought it do\vn to its own date; consequently the will spoke from the date of the codicil and included all lands acquired in the meantime.^ The codicil had this effect on the construction of the will, even though purporting to relate only to personal prop- erty and confirming nothing in express terms.* But where the codicil showed a plain intention to deal only with the identical property embraced in the will, this presumption was overcome.^ § 488. Some Effect should be given to a Will. Some effect should, at all events, if possible, be given to a will, however obscure and informal its language ; and it is only where a reasonable construction and the discovery of the intent of the testator are hopeless, that all effect should be denied to the instru- ment.^ And hence where a will admits of two constructions, one of which renders it operative and the other inoperative, the former is to be preferred.^ So, too, a clause will be read so as to be con- sistent if possible with the testator's evident intent and avoid un- certainty.^ 2. Supra, §§ 7, 448a, 449. N. E. 283. At such a point of un- 3. Jones v. Shewmaker, 35 Ga. 151; certainty, aid may often be found by Beall V. Cunningham, 3 B. Men. admitting extrinsic evidence. See c. 390; Acherly v. Vernon, Com. 381; 3; post. 2 M. &. S. 15. 7. 1 Jarm. Wills, 356; 2 ib. 842; 4. Piggott V. Waller, 7 Ves. 98; 4 3 Burr. 1626; L. R. 5 H. L. 548; 30 K. & J. 73. Cf. Doe v. Walker, 12 M. Ky. Law R. 857, 99 S. W. 925; 108 & W. 591; Haven v. Foster, 14 Pick. N. W. 979, 77 Neb. 163; 33 So. 61, 541 109 La. 38; Seitz v. Faversham, 98 5. Bowes V. Bowes, 2 B. & P. 500; N. E. 385, 205 N. Y. 197; 88 A. 432, Monypenny v. Bristow, 2 Russ. & 241 Penn. 253; Lomax v. Shinn, 162 My. 132. 111. 124. 6. Den v. Crawford, 8 N. J. L. 90; 8. Ehler's Will, 143 N. W. 1050. Wootton V. Redd, 12 Gratt. 196 ; Mor- 155 Wis. 46. ton V. Woodbury, 153 N. Y. 243; 47 613 § -189 LAW OF WILLS. [PAET VI. § 488a. Effect of Will, whether controlled by Change of Con- dition of Estate^ etc. If the language and terms of a will are not doubtful, the fact that the testator intended to accomplish some special purpose thereby cannot control its effect in construction. Thus, where a design is disclosed by reasons stated in the will, to give more to certain poor beneficiaries than to certain rich ones, under the chosen plan of division, and this design happens to be defeated, because of changes in the condition of the estate after the will was made, or from other causes, the plan which the testator plainly prescribed must nevertheless be followed out, even though it should fail to effectuate his purpose.^ Xevertheless, where a change in the condition of the property occurs after the execution of the will, — as by the conversion of the residue from real to personal estate, — a court of equity inclines, as between two constructions of the will,- to favor that by which the testator's obvious wishes may be carried into effect.^ And where from the change of circumstances it becomes obviously im- possible to execute the will as intended, some substantial approxi- mation to the testator's scheme is sometimes attempted.^ § 489. Presumption of Compliance with Law; Legal and Ille- gal Provisions, etc. Where, again, a will is capable of two constructions, one con- sistent and one inconsistent with the law, it may be presumed that the testator intended compliance with the law ; and upon this prin- ciple provisions under a will have frequently been upheld which, if otherwise construed, must have failed.^ So, too, if one con- 9. Terry v. Smith, 42 N. J. 1. Bills v. Putnam, 64 N. H. 554, Eq. 504, 8 A. 886; supra, § 15 A. 138. 478. A change in the testator's 2. Wikle v. WooUey, 81 Gn. 106. 7 condition or circumstances after S. E. 210. maJsinf,' his will does not affect its 3. Thompson v. Newlin, 8 Ired. Eq. construction as a rule. Harvey v. 32; Andrews v. Rice, 53 Conn. 576, 5 Ballard, 96 N. E. 558, 252 111. 57; A. 708; 152 Penn. St. 192, 201, 25 A. Mason v. Hospital, 93 N. E. 637, 207 513; Klingman v. Gilbert, 135 P. 682, Mass. 419. Q-^^ CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 490 struction would give effect to the whole instrument while the other would destroy a part, it is the former construction which should prevail.'* To all lawful dispositions of a testator the courts will give due effect in construction.^ The maxim that every one is presumed to know the law, applies to existing but not to future enactments, in construing a testator's will as executed by him.® We may add that where legal and illegal bequests or trusts are found together, the disposition is to uphold those which are legal, provided they may stand independently and apart; though it would be otherwise if the legal and illegal bequests or trusts were so in- separably connected as to constitute an entire scheane, for there they must fall together for illegality.^ § 489a. Presumption against a Revocation. In case of doubtful language, an interpretation of will and codicil is not favored that revokes what has been once given, if will and codicil can be reconciled.' § 490. Presumption against Intestacy. No presumption of an intention to die intestate as to any part of his property is allowable when the words of a testator's will may 90 Kan. 545 (against perpetuities) ; Ind. 672. Cf. Andrews v. Lincoln, 50 St. Stephen's Church v. Morris, 78 S. A. 898, 95 Me. 541, 58 L. R. A. 103; E. 622, 115 Va. 225. Murphey v. Brown, 62 N. E. 275, 159 4. Pruden v. Pruden, 14 Ohio St. Md. 106. And see 54 A. 1072, 97 Me. 251; Nightingale v. Sheldon, 5 Ma- 427; 133 N. Y. S. 266; 34 So. 52, 109 son, 336, 234 Penn. St. 139. La. 994; Lally's Will, 92 N. E. 1089, 5. Lowry v. Muldrow, 8 Rich. Eq. 198 N. Y. 608; 128 N. W. 899, 144 241; Tlirasher v. Ingram, 32 Ala. 645. Wis. 238; 77 A. 957, 83 Conn. 369 6. Taylor v. Mitchell, 57 Penn. St. (perpetuities) ; Kahn v. Tierney, 94 209. N. E. 1095, 201 N. Y, 516; 99 N. E. 7. Kennedy v. Hoy, 105 N. Y. 134, 662, 255 111. 433; 143 S. W. 778, 147 1 N, E. 390; 32 R. L 104, 78 A. 507; Ky. 85. 120 Am. St. Rep. 728, 20'5 Mo. 202, 8. Goodwin v. Coddington, 154 N. 104 S. W. 1; De Witt's Will, 188 N. Y. 283, 48 N. E. 729. See Holmes v. Y. 567, 80 N. E. 1108; 150 Iowa, 628; Miner, 93 N. E. 230, 247 111. 586 (di- 134 S. W. 1139, 142 Ky. 706; Skin- vesting what has already vested), ner v. Spann, 93 N. E. 1061, 175 615 491 LAW OF WILLS. [tart VI. fairly carry tlie whole; for no one is supposed to make Lis will without meaning to dispose of all his estate.^ It is true, notwith- standing, that such a partial testament may be intended and may take effect.^ Intestacy in effect is disfavored as a presumed in- tention.^ If a general intention appear in the will to make therein a complete general disposition of all the testator's property, this cannot, it is true, control particular directions plainly to the con- trary nor enlarge dispositions beyond their legitimate meaning; and yet this general intent is allowed weight in determining what was intended by particular devises or bequests that may admit of an enlarged or limited construction.^ It is further to be pre- sumed that a general residuary gift will carry particular property not otherwise disposed of.* § 491. By what Local Wills are interpreted. Real and personal property are to be distinguished in the in- terpretation of a will. As to real property, the well settled rule 9. Johnson v. Brasington, 156 N. Y. 181, 50 N. E. 589; 168 111. 214, 48 N. E. 94. 1. Given v. Hilton, 5 Otto, 591 Leigh V. Savidge, 14 N. J. Eq. 124 Gilpin V. Williams, 17 Ohio St. 396 Eoyd V. Latham, Bush. L. 365; Gour- ley V. Tliompson, 2 Sneed, 387; Rau- denbaeh's Appeal, 87 Penn. St. 51; 102 Penn. St. 207; Damon v. Bibber, 135 Mass. 458; §§ 7, 449; Minkler v. Simons, 172 111. 323, 50 N. E. 170; Gallagher v. McKeague, 125 Wis. 116, 103 Md. 233; Welsh v. Gist, 61 A. 665; 101 Md. 606; Willat Re, (1905) 1 Ch. 378; 221 111. 59, 77 N. E. 454; Alsop V. Alsop, 67 Conn. 249, 34 A. 1106; Bishop V. McClelland, 44 N. J. Eq. 450, 16 A. 1; Boston Co. v. Cof- fin, 152 Mass. 95, 8 L. R. A. 740, 25 N. E. 30; Carney v. Kain, 40 W. Va. 758, 23 S. E. 650; 99 Tenn. 68, 41 S. W. 333; 55 So. 289, 79 A. 304, 78 N. J. Eq. 410; 79 A. 173, 229 Penn. 542, 68 W. Va. 729, 70 S. E. 760; Spreck- les' Estate, 123 P. 371. 162 Cal. 559; 7 S. E. 910, 136 Ga. 428; 133 N. W. 8, 167 Mich. 306; 83 A. 433, 34 R. L 316; Gray v. Garnett, 146 S. W. 18, 148 Ky. 34 (presumption overcome) ; 135 N. W. 124, 117 Minn. 409, 97 N. E. 774, 211 Mass. 327; 86 A. 899; 88 A. 424, 241 Penn. 240; Nagle v. Conard, 87 A. 1119, 80 N. J. Eq. 252. 2. Houghton v. Brantingham, 86 A. 664, 86 Conn. 630. 3. lb. 4. Bagot Re, (1893) 3 Ch. 348; 145 111. 625, 34 N. E. 467; Holmes v. Mackenzie, 84 A. 340, 118 Md. 210; 97 N. E. 1061, 253 111. 528; 80 A. 531; 231 Penn. 271; 130 N. Y. S. 649; 78 A. 320, 83 Conn. 654. 616 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 491 of England and the United States is that, no matter where the will was made or in what language written, the law where the land lies must govern in the construction of the will as well as in its method of execution." Thus, if a posthumous child not provided for by the testator has rights of inheritance in the State or country where the decedent leaves real estate, though not in the testator's own domicile, those rights will fasten upon such real estate.® And in the interpretation of language which has a peculiar meaning in the local jurisdiction where the land lies, that meaning must prevail in the devise.^ The principle of local situation goes still deeper, making the validity of the devise itself as regards the local land depend upon its conformity to the requirements of local law.^ A will of personalty (or of movables, rather) is, on the other hand, governed in construction by the law of the testator's last domicile ; and here again the principle is a broad one, embracing questions of validity as well as interpretation. Whether one shall take under the will as legatee, or aside from it by right of distri- bution, whether the decedent was himself capable and left a prop- erly executed will, these and all kindred questions depend, like the general settlement of the estates of the dead, upon the law of the decedent's last domicile.' But the law where the will was made is 5. 1 Jarm. Wills, 1, 2, and Ameri- 8. See Schoul. Exrs. & Adrars. §§ can note; 2 ib. 840: Story, Confl. 1015-1020 (Vol. II); Turner's Estate^ Laws, § 474; 4 Burge Coram. Col. & 143 N. Y. S. 692. As to power of ap- For. Law, pt. 2, c. 15; Kerr v. Moon, pointment see 103 N. E. 315, 209 N. 9 Wheat. 565, 6 L. Ed. 1611; Pre. Y. 585. Ch. 577; Bull's Will, 111 N. Y. 624, 9. 1 Jarm. Wills, 2, and Bigelow's 19 N. E. 503; 82 N. E. 376, 229 111. Am. note; Story, Confl. Laws, § 465; 341, 13 L. R. A. (N. S.) 780; Hig- Anstruther v. Chalmer, 2 Sim. 1; 25 gins V. Eaton, 188 F. 938; 148 S. W. Beav. 218; Schoul. Exrs. & Admrs. 33, 149 Ky. 158; 188 F. 938; Lougee §§ 1015-1020 (Vol. II); Fergusson's V. Wilkie, 95 N. E. 221, 209 Mass. W'ill, (1902) 1 Ch. 483. Thus is it 184 (a plain codicil provision uncon- as to the sucession of a foreigner's nected) ; Lewis v. Payne, 77 A. 321, personal estate, where he leaves spec- 113 Md. 127. ific legacies to American relatives, 6. Eyre v. Storer, 37 N. H. 114. save so far as he has by authority 7. Story, Confl. Laws. § 479; 1 of such foreign law provided for a Jarm. Wills, 2, and Bigelow's note. limited administration in this coun- 617 § 492 LAW OF WILLS. [PAET VI. allowed some force bj comity of statute or otherwise. A testa- mentary disposition of personal property valid at the testator's last domicile, will, moreover, be respected by tribunals elsewhere as valid, and allowed to take effect, where the law is different, if neither a local statute nor fundamental public policy positively for- bids.^ Where, then, one's will purports to dispose of property within and realty without the domicile, it may happen that the former disposition holds valid, but not the latter. But a clause which grants both real and personal property upon the same trust is generally severable, and may take effect as a disposition of person- alty within the jurisdiction, even though the devise of realty else- where located should fail.^ § 492. Summary: Mr. Jarman's Rules of Construction. Rules of presumption, such as we have set forth in this chapter, yield to the exigencies of a case in hand ; and as for the maxims yet to be applied in detail, no summary is worth attempting. But Mr. Jarman's general rules, framed upon an exhaustive review of the try. Eockwell v. Bradshaw, 67 Conn. S. Ct. 329, 51 L. Ed. 574. And see 8, 34 A. 758. And see Bedell v. Clark, 104 N. Y. S. 4 ; Davis v. Upson, 70 N. 137 N. W. 627, 171 Mich. 486; John- E. 602, 209 111. 26 (bonds held by son V. Johnson, 102 N. E. 465, 215 agent in another State) ; Gross's Mass. 276; 87 A. 951, 120 Md. 541. Goods, (1904) P. 269 (law of domi- 1. As e. g. in a gift in contraven- cile as to revocation by marriage) ; tion of the local rule of perpetuities. Beaumont's Estate, 65 A. 799, 216 Dammert v. Osborn, 140 N. Y. 30, 35 Penn. 350 (change of domicile as to X. E. 407; 141 N. Y. 564, 35 IST. E. invalid execution); Blaeksher Co. v. 1088. And see Gaines's Succession, Northrup, 57 So. 743. 45 La. Ann. 1237, 14 So. 233. 3. Mr. Jarman's twenty-four rules 2. lb.; Knox v. Jones, 47 N. Y. are stated as follows in the 4th Eng- 389. lish edition of this valuable treatise. Yet, as to the validity of a certain Vol. II, pp. 840-843: bequest (e. g. whether a certain cor- I. That a, will of real estate, where- poration can take) the law of the soever made, and in whatever lan- Icgatee's domicile will prevail in gunge written, is construed according comity, unless the law of testator's to the law of England, in which the domicile absolutely prohibits. Ingle- property is situate, but a will of per- liart V. Inglehart, 204 U. S. 478, 27 sonalty is governed by the lex domi- G18 CHAP. I.] GENERAL EULES OF CONSTRUCTION. § 492 English cases, have gained such credit in the courts, that we shall set them forth in our notes for the convenience of the American reader by way of comparison; though in a few instances their cilii. II. That technical words are not necessary to give effect to any species of disposition in a will. III. That the construction of a will is the same at law and- in equity, the juris- diction of each being governed by the nature of the subject; tliough the conquences may differ, as in the in- stance of a contingent remainder, which is destructible in the one case, and not in the other. IV. That a will speaks, for some purposes, from the period of execution, and for others from the death of the testator; but never operates until the latter period. V. That the heir is not to be disin- herited without an express devise, or necessary implication; such implica- tion importing, not natural necessity, but so strong a probability, that an intention to the contrary cannot be supposed. VI. That merely negative words are not sufficient to exclude the title of the heir or next of kin. There must be an actual gift to some other definite object. VII. That all the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but, where several parts are absolutely irreconcilable, the latter must prevail. VIII. That extrinsio evidence in not admissible to alter, detract from, or add to, the terms of a will (though it may be used to rebut a resulting trust attaching to a legal title created by it, or to re- move a latent ambiguity [arising from words equally descriptive of two or more subjects or objects of gift]. IX. Nor to vary the meaning of words; and, hence, in order to attach a strained and extraordinary sense to a particular word, an instrument exe- cuted by the testator, in which the same word occurs in that sense, is not admissible. X. But the court will look at the circumstances under which the devisor makes his will, as the state of his property, of his fam- ily, and the like. XI. That, in gen- eral, implication is admissible only in the absence of, and not to control, an express disposition. XII. That an express and positive devise cannot be controlled by the reason assigned, or by subsequent ambiguous words, or by inference and argument from other parts of the will; and, accordingly, such a devise is not affected by a sub- sequent inaccurate recital of, or ref- erence to, its contents ; though re- course may be had to such reference to assist the construction, in case of ambiguity or doubt. XIII. That the inconvenience or absurdity of a de- vise is no ground for varying the con- struction, where the terms of it are unambiguous ; nor is the fact that the testator did not foresee all the consequences of his disposition, a reason for varying it; but, where the intention is obscured by conflicting expressions, it is to be sought rather in a rational and consistent, than an irrational and inconsistent purpose. XIV. That the rules of construction cannot be strained to bring a devise within the rules of law; but it seems that, where the will admits of two 619 492 LAW OF WILLS. [part VI. practical application may in this country appear doubtful, and they anticipate certain matters whose discussion we defer to later chapters. constructions, that is to be preferred which will render it valid; and there- fore the court, in one instance, ad- hered to the literal language of the testator; though it was highly prob- able that he had written a word by mistake for one which would have rendered the devise void. XV. That favor or disfavor to the object ought not to influence the construction. XVI. That words, in general, are to be taken in their ordinary and gram- matical sense, unless a clear inten- tion to use them in another can be collected, and that other can be as- certained; and they are, in all cases, to receive a construction which will give to every expression some effect, rather than one that will render any of the expressions inoperative; and of two modes of construction, that is to be preferred which will prevent a total intestacy. XVII. That, where a testator uses technical words, he is presumed to employ them in their legal sense, unless the context clearly indicates the contrary. XVIII. That words, occurring more than once in a will, shall be presumed to be used always in the same sense, unless a contrary intention appear by the context, or unless the words be ap- plied to a different subject. And, on the same principle, where a testator uses an additional word or phrase, lie must be presumed to have an ad- ditional moaning. XIX. That words and limitations may be transposed, supplied, or rejected, where war- ranted by the immediate context, or the general scheme of the will; but not merely on a conjectural hy- pothesis of the testator's intention, however reasonable, in opposition to the plain and obvious sense of the language of the instrument. XX. That words which it is obvious are miswritten (as dying loith issue, for dying without issue) may be cor- rected. XXI. That the construction is not to be varied by events subse- quent to the execution ; but the courts, in determining the meaning' of particular expressions, will look to possible circumstances, in which they might have been called upon to affix a signification to them. XXII. That several independent devises, not gram- matically connected, or united by the expression of a common purpose, must be construed separately, and without relation to each other; al- though it may be conjectured, from similarity of relationship, or other such circumstances, that the te.stator had the same intention in regard to both. There must be an apparent de- sign to connect them. XXIII. That wliere a testator's intention cannot operate to its full extent, it shall take effect as far as possible. XXIV. Tliat a testator is rather to be presumed to calculate on the dispositions in his will taking effect, than the contrary; and accordingly, a provision for the death of devisees will not be consid- ered as intended to provide exclu- sivly for lapse, if it admits of any other construction. 620 CHAP. I.] GENERAL KULES OF CONSTRUCTION. § 492a § 492a. Proceedings to obtain Construction of Will. Proceedings for obtaining the construction of a will, but not to reform it, are usually by bill in equity (irrespective of ampler statute provisions), and such proceedings are not entertained be- fore a real necessity arises, nor unless instituted or submitted by parties duly interested; usually, however, by an executor or trus- tee claiming under the will.* Courts of probate, as suoh, have no inherent jurisdiction to construe a will.^ 4. See 102 Mich. 510, 61 N. W. 7; 63 Conn. S99, 27 A. 585; 109 Ala. 457, 19 So. 810. Costs or fees are not usually allowed to the losing claim- ant in a suit for construction. Kim- ball V. Bible Society, 65 N. H. 140, 23 A. 83. But see (1897) 2 Ch. 407; Kendall v. Taylor, 92 N. E. 562, 245 111. 617 (will dubiously expressed). See, further, Williamson v. Grider, 135 S. W. 361, 97 Ark. 588 (testa- mentary trustee) ; Parker v. Cobe, 94 N. E. 47, 208 Mass. 260 (parties not affected) ; Pingrey v. Rulon, 92 N. E. 592, 246 111. 109 (limit of such jurisdiction) ; 127 N. W. 1002, 143 Wis. 325; Russell v. Hartley, 78 A. 320, 83 Conn. 654 (whether executor a party) ; 96 N. E. 1073, 252 111. 522 (whether remedy exists at law or es- tate is purely legal) ; Archambault's Estate, 81 A. 313, 232 Penn. 334 (no advice without litigants). And see Beall V. Wilson, 143 S. W. 55, 14S Ky. 646 (appellants) ; Huston v. Dodge, 87 A. 888, 111 Me. 246. 5. Skeiff V. Bohall, 138 S. W. 461, 99 Ark. 339 (real estate). But local statute sometimes gives such probate misdiction, with a riglit of appeal. See 144 Mass. 135, 59 Am. Rep. 65, 10 N. E. 758. A court is not bound to construe a will on the application merely of a party hostile to it. Glover v. Baker, 83 A. 916, 76 N. H. 393. See 124 P. 409, 87 Kan. 381. 621 § 494 LAW OF WILLS. [PAET VI. CHAPTER II. DETAILS OF TESTAMENTAUY COXSTEUCTION. § 493. Details to be considered; as to the Property described in the Will; Modern Legislation, etc. In this chapter we proceed to apply the general principles of testamentary construction to wills in their manifold details. And first of all let us consider the property described in a will and included under its provisions. Such descriptions may relate to real estate or to personal estate, or to one's property generally. It should be first observed, however, that legislation, both in England and certain of our States, fixes to some extent, at this day, the local rule of construction, on certain points to be here con- sidered ; and the policy in many States is now to apply the same general construction to real and personal property, as far as pos- sible, discarding the ancient artificial distinctions between those two kinds.^ § 494. Descriptions relating to Real Estate: Leaseholds. A devise of one's " real estate " relates, strictly speaking, to free- holds so as to exclude the idea of chattels real and leaseholds. And the old rule of construction gave the same exclusive effect where the term " land " or " lands and tenements " or " lands, tenements and hereditaments " was employed in a will. Any such descrip- tion was held prima facie to mean freeholds only, and leaseholds were excluded.^ This rule equally applied whether the devise was of all one's lands, etc., or of lands under a limited description ; as of "' all my lands in the to^vn of B." ^ But this presumption of interest was overcome, where at the time of devise the testator had no freehold lands answering to the description, but leaseholds or chattels real only.* And where lease- 1. See § 474a, 3. lb.; Hawkins Wills, 30-32. 2. Cro. Car. 293; Swift v. Swift, 4. Cro. Car. 293; Thompson v. Law- 1 Do G. F. & J. 160; Thompson v. ley, supra. Lawley, 2 B. & P. 303. C22 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTIOlSr. § 495 hold property was blended in situation and enjoyment with free- holds, or an intention to carry leaseholds was otherwise inferable from the context, the construction yielded accordingly ; ^ and lease- holds might thus pass even under a devise of " real estate." ® By the Statute 1 Vict. c. 26 the presumption is reversed, so that in modern England, a devise of one's lands, or his lands in a specified place, shall include leaseholds prima facie as well as freeholds.^ Corresponding enactments may be found in some parts of the United States ; ^ but neither legislature nor court has given the subject much attention in this country.^ One may make a valid devise of land under a residuary clause of his will without particularly identifying the land. ^ " Unimproved " real estate is to be distinguished from that with dwellings or other buildings upon it, such as is called " im- proved " real estate.^ § 495. The Same Subject: Trust Estates and Mortgages. It has been presumed that a general devise of one's lands or real estate was intended to embrace land which the testator held as trustee or mortgagee ; ^ and that in such case the persons who suffer injury thereby must obtain satisfaction .out of the decedent's estate.^ But if the will disclosed a purpose inconsistent with applying to such devise property of which the testator was not beneficial 5. Hobson v. Blackburn, 1 M. & K. spected. Chase v. Stockett, 73 Md. 571. 235, 19 A. 761. 6. Swift V. Swift, 1 De G. F. & J. 1. Lumber Co. v. Rogers, 145 Mo. 160. See Lane's Estate, 140 N. Y. 445, 46 S. W. 1079. S. 602 (gift of a deed merely). 2. Robb v. Robb, 173 Penn. St. 620, 7. Stat. 1 Vict. c. 26, § 26 (1837). 34 A. 237. See Appx.; 28 Ch. D. 66; Knight Re, 3. Braybroke v. Inskip, 8 Ves. 34 Ch. D. 518. 435; Jackson v. Delancy. 13 8. Hawkins Wills, 32, Swords' Johns. 554, 7 Am. Dec. 403; Wills v. note. Cooper, 1 Dutch. 161; Heath v. 9. The express reservation of a de- Knapp, 4 Penn. St. 228; 4 Kent Com. vise in such particulars must be re- 538, 539. 4. 1 Jarm. 698. 623 § 496 LAW OF WILLS. [PAET VI. owner, such a presumption does not arise.^ As where the property is devised to trustees to sell, or with a charge of some sort imposed upon it ; or where the devise is encumbered with limitations.® And though a general devise should pass whatever legal estate under a mortgage the testator had to transmit, it would not include the beneficial enjoyment of money secured by the mortgage, since that is personal estate.^ § 496. The Same Subject; Reversionary Interests, etc. Under a general devise of one's land or real estate, all reversion- ary interests will pass unless a clear intention to exclude the same be shown.* 5. Martin v. Laverton, L. R. 9 Eq. 570; Hawkins Wills, 35; 1 Jarm. Wills, 689 et seq.; Brown Re, 3 Ch. D. 156. See Gibbes v. Holmes, 10 Rich. Eq. 484; 3 Desau. 346; Carter Re, (1900) 1 Ch. 801 (intent re- garded) . 6. Hawkins Wills, 35-37; Morley Re, 10 Hare, 293 ; Rackham v. Siddall, 16 Sim. 297; 8 Ves. 436; 1 Jarm. 697, 698; Packman Re, 1 Gh. D. 214. Where such a devise would be in de- reliction of the testator's duty, no such presumption will avail. Wills V. Cooper, 1 Dutch. 161; 2 Edw. Ch. 547; 35 S. C. 423. 7. Woodhouse v. Meredith, 1 Mer. 450. A gift of all the testator's right, title, and interest in land held by him as mortgagee is a gift of personalty only, and passes no title in the land. Martin v. Smith, 124 Mass. 111. Here the mortgagor was executor of the ■will of tho mortgagee, and charged him.self with the amount of the mort- gage debt as assets in his hands, thereby operating a payment of the debt and a discharge of the mortgage. It seems common sense in these days that a devise of land shall not carry a money right with mortgage secur- ity, since this is personal property. See 50 N. J. Eq. 547. "All my real estate " in a certain town, under the modern ruie ot after- acquired property (§ 486), will pass a piece of land there acquired after- wards by the testator in foreclosing a mortgage which he acquired subse- quently. Dickerson's Appeal, 55 Conn. 223, 15 A. 99. And see 69 Conn. 416, 38 A. 219. But the specific de- vise of a freehold does not pass a mortgage taken back by the testator upon a sale of the land subsequent to making the will. Clowes Re, (1893) 1 Ch. 214. 8. Tennent v. Tennent, 1 Jo. & Lat. 389; Church v. Mundy, 15 Ves. 396; Hayden v. Stoughton, 5 Pick. 538; Brown v. Boyd, 9 W. & S. 128. If one devises " lands not herein- before disposed of," or " lands not settled," etc., the consecjuence is sim- ilar. Hawkins Wills, 34, citing Jones v. Skinner, 5 L. J. Ch. N. S. 87; 3 P. Wms. 56. See Gully v. Neville, 55 So. 289 (property "accruing"). C24 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 498 § 497. The Same Subject: Lands contracted for. Lands which the testator has contracted to purchase pass prima facie under a general devise, though not actually conveyed to him.' As for lands which the testator has contracted to sell, the legal title thereto is presumed to vest in his devisee, as though by way of transferring what the testator held in trust; but not in general so as to give such devisee the beneficial enjoyment of the purchase- money.^ § 498. The Same Subject : " Land " ; " Tenement " ; " Heredita- ment." The word " land " is a term which comprehends any ground, soil, or earth whatever; and having an indefinite extent, upward as well as downward, it naturally includes all houses or buildings standing or built on it, besides mines, wells, and whatever else the soil may hold between its surface and the earth's centre.^ The word " land " receives generally its broadest sense where a will is interpreted; and yet not independently of the testator's apparent intent. Thus a devise of land covers usually the house standing upon it; but not where the context shows that the house itself or that part of the land on which the house stands was devised differ- ently.^ And again, one might devise lands with express reserva- tion as to mines or a well contained therein. " Land " is not so broad a term as " tenements " and " heredita- ments " ; for these include every species of realty, corporeal or incorporeal, that may be holden or inherited.^ Hence advowsons, 9. Acherley v. Vernon, 10 Mod. during his life. Atwood v. Weems, 99 518; CoUison v. Girling, 4 My. & Cr. U. S. 183, 25 L. Ed. 471; Covey v. 75. Dinsmoor, 80 N. E. 998, 226 111. 1. See Hawkins Wills, 38, 39-, 438 (unpaid note of purchaser); Drant v. Vause, 1 Y. & C. C. C. 580; 1 Beemer v. Beemer, 96 N. E. 1058, 252 J. & W. 479. A testator who has the III. 453. legal title to lands which he has sold 2. Co. Lit. 4a; 3 Kent. Com. 378; l>y a written contract, can transfer 1 Jarm. Wills, 777. by his wijl both the title and the 3. Heydon's Will, 2 And. 123; Cro. notes given for the purchase-money; El. 476, 658. !ind the devisee will stand toward.? 4. Bouv. Diet. "Tenements," " He- the purchaser just as the testator did reditaments "; 3 Kent Com. 401. 40 625 § 500 LAW OF WILLS. [PAET VL tithes, etc., which pass under these broader terms might not where merely land is devised.'' Yet here again a testator's intention con- trols ; ^ and in some American States, moreover, " land " has been defined as including tenements and hereditaments.' § 499. The Same Subject : " Messuage " ; "Premises." " Messuage " is a term somewhat antiquated, which =eems how- ever to mean nearly the same as dwelling-house ; ^ and opinions have sometimes differed as to whether a garden comes properly under this word, as well as the curtilage or enclosed space immediately around the dwelling, which is a more essential incident.^ The word " premises," which literally denotes that which is al- ready stated, should depend for its breadth upon the expression to which it refers.-^ But long association has given the word an in- dependent sense synonymous with land or house; and this sense is respected by courts of construction.^ § 500. The Same Subject: "House," "Mill," etc. The grant or devise of a house will carry the land on which the 5. 1 Jarm. Wills, 777; 11 H. L. 8. Bouv. Diet. "Messuage." The Cas. 375. word is said to include a church. lb.; 6. lb.; Styles, 261; 2 Leon, 41. 11 Co. 26; 8 B. & C. 25. 7. 1 Washb. Real Prop. 9. For the 9. In modern times the disposition force of the context in determining the is to regard the garden, and the or- meaning, where leases are concerned, chard too, as part and parcel either see supra, § 494. As to passing copy- of a " house " or a " messuage." Cro. holds, see 31 Ch. D. 314. "Wild and El. 89; 2 Saund. 400; 1 Jarm. Wills, forest lands " defined in Newcombe v. 778. But land beyond a homestead or Ostrander, 125 N. Y. S. 1133. And see orchard is not usually carried by Powell V. Beebe, 133 N. W. 8, 167 cither word. lb. And see next sec- Mich. 306 (government survey) ; Gib- tion. son V. Gibson, 76 S. E. 980, 93 S. C. 1. Bouv. Diet. "Premises"; 1 385 (taxed land). Jarm. 778; Biddulph v. Meakin, 1 As to the interest given under the East, 456. will, neither " tenement," nor the lb. ; Heming v. Willets, 7 C. B. broader expression " hereditament," 709. has any peculiar force, independently 2. 1 Jarm. Wills, 779-781; Rogers of otlier circumstances to pass a fee. v. Smith, 4 Penn. St. 93; Whitney V. See Wright v. Denn, 10 Wlioat. 204, Olney, 3 Mason, 280. 238, 6 L. Ed. 303. G2G CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 500 honso is built ; and '' house," like " messuage," thus imports all the land within the curtilage, without any mention of " appurten- ances." " Dwelling-house," as a place for one's abode, is a more specific term; and as for "cottage," modem usage assigns the sense of a sanall dwelling-house, with more or less land annexed, though Lord Coke defined it for his times as a little house with no land at all ; ^ while " mansion house " or " palace," as something more pretentious than either of these, conveys the idea of pleasure grounds annexed and a fine approach to the edifice.* But whatever word of this description may be employed, a de- vise of the house will be presumed to carry that which is accessory and needful for its beneficial use and enjoyment, and no more ; admitting, though we must, that a devise deserves a more flexible interpretation than a grant. House is synonymous, or nearly so, with messuage ; and stables, outhouses, and yard, garden, and or- chard, are prima facie included, so as to enable the devisee to con- veniently enjoy the grounds and keep up the style of living at the homestead as before.^ But the devise of a house does not include all that the occupier may find it convenient to occupy with it ; nor are adjacent lands or lots, with buildings on them which tenants occupied when the will was made, prima facie included under such a devise, for the sake of the rents and profits.® Erections, too, for business and trade are distinguished from those for domestic purposes in such a connection. Nevertheless each will stand by its own intent as manifested by its whole tenor; and while words of reservation or some other gift may curtail the devise in one case, an obvious desire to confer as beneficial an enjoyment as possible and to leave no part of one's estate undisposed of, may in another extend the devise beyond its more literal import; and a compari- 3. Co. Lit. 56 b. See 2 B. & Ad. 780; Clements v. Collins, 2 T. R. 468. 638. See 146 Mass. 373, 15 N. E. 899. 4. Lombe v. Stougliton. 18 L. J. Ch. 6. Steele y. Midland R., L. R., 1 400. Ch. 275; Brown v. Saltonstall, 3 Met. 5. L. R. 1 Ch. 275; 1 Jarm. Wills, 423. Cf. Blackborn v. Edgley, 1 P. Wms. 600. 627 § 501 LAW OF WILLS. [PART VI. son of language in other parts of the will may aid in either case to resolve the doubt.' Again, if one should devise a certain " mill/' " factory," ^' store," " warehouse," or other building for business purposes, not only would the building itself pass by force of the descriptive word, but such land under and adjoining it, besides, and such accompany- ing privileges as its beneficial use and enjoyment rendered neces- sary.* § 501. The Same Subject: "Appurtenances" and Similar Ex- pressions, To make the description still more complete, a devise speaks sometimes of a house (or mill, etc.) " with its appurtenances," with all the lands " appertaining thereto " or " thereunto belong- ing," or " thereto adjoining," or some similar expression. Such terms seem tO' intimate that the testator meant that a generous effect should be given to his devise ; but to speak strictly, land cannot be appurtenant to a house or other land ; ^ and " appurten- ances," though certainly aiding to give the devisee whatever a com- modious and beneficial enjoyment of the premises may require, cannot safely be said to give more than though the expression itself had been omitted.^ For appurtenances are things which pass as incident to the principal thing; and if the house be conveyed or de- vised, whatever is incident goes naturally with it.^ 7. Under the devise of a " barn," factories, see Nye v. Hoyle, 120 N. land enough passes to complete its en- Y. 195, 24 N. E. 1. joyment, and no more. Bennet v. Bit- 9. Co. Lit. 121 b; 6 Bing. 161. tie, 4 Rawlc, .339; 48 S. C. 408. As 1. 1 Jarm. Wills, 781, 782. Grounds to "homestead" (aside from its of doubtful incident to the house more technical moaning under our may thus be carried. Cro. El. 113. local statutes), see 14 Iowa, 73. And But not adjacent lands which the tes- for the devise of " house and lot," tator had treated as a separate tract, see 37 N. J. Eq. 482. 1 B. & P. 53; 16 M. position would be impossible under the narrow interpretation.'' Even pro- ceeds of the sale of land have been carried under a residuary gift of " money ;" ^ though it must be an exceptional use of such a word to carry literally real estate.* And once more the context may give " money " an enlarged sense, yet so qualified as to fall short of embracing the entire r&sidue.^ The true criterion is, of course, what the testator appears from the whole will to have in- tended.^ Other terms than simply " money " are often used in this con- nection. " Money due to me " implies more than " money ;" and a bequest in these words may carry an unpaid legacy from some other estate,^ or the amount payable on a life insurance policy,^ or some other unpaid debt which stands due at the testator's death. " Ready money " and " cash," on the other hand, are terms so specific as to require a stricter interpretation than the word ''money" by itself; and yet "ready money" (and "cash" too, as it seems) may include cash at a bank on current account, for it 1 Met. 469; Smith v. Davis, 1 Grant, 8. Sweet v. Burnett, 136 N. Y. 204, 158; Fulkeron v. Chitty, 4 Jones Eq. 32 N. E. 628. 244; Paul v. Ball, 31 Tex. 10. The 9. 1 Jarm. Wills, 774. Where, for claim on an unsatisfied judgnient may Instance, the will shows that public be included under a residuary be- stock was included; or accounts with quest of " all the money I have or various persons and not a bank ac- may have at my death," etc. 72 Tex. count alone. 26 Beav. 218; 6 Sim. 224, 9 S. W. 881. 67; and see Paup v. Sylvester, 22 6. 1 Jarm. Wills, 769-773; Legge Iowa, 371. v. Asgill, cited 4 Russ. 369; Waite 1. Levy's Estate, 161 Penn. St. V. Coombes, 5 De G. & S. 676; Mor- 189, 28 A. 1068. And see 81 A. 356, ton V. Perry, supra; Hawkins Wills, 79 N. J. Eq. 120. 51. A gift of the " balance of my 2. Bainbridge v. Bainbridge, 9 Sim. money " is sometimes construed in 16. Otherwise where the estate out of the wills of ill-educated persons, as which the legacy is payable has not importing a gift of all the residue of yet been got in. Martin v. Hobson, the estate, both real and personal. L. R. 8 Ch. 401. Miller Re, 48 Cal. 165, 17 Am. Rep. 3. Petty v. Willson, L. R. 4 Ch. 422. 574. Cf. 3 Beav. 342; Delamater's 7. § 522. Estate, 1 Whart. 362. 634 CHAP. II.] DETAILS OF TESTAAIEXTARY CONSTRUCTIOX. JOG is subject to the depositor's check at any time.'* " Ready money " does not, however, include dividends on stock uncollected and un- called for ; ^ nor debts and claims generally, whose collection is requisite before the money is actually in hand and available. '' Cash " is a word of import at least as strict as " ready money;" and so is " money in hand." ^ § 506. The Same Subject: "Movables;" Personal Property. As mobility is the leading essential quality of personal as con- trasted with real property, " movables " may well denote corporeal " personal property " in the widest sense of the law.^ But as be- tween corporeal and incorporeal personalty, an uncertain stand is taken in the construction of wills ; and the disposition of the court appears unfavorable to pass incorporeal or intangible personalty by presumption, or at least debts and money rights, or what our earlier law denominated the chose in action.^ 4. Parker v. Marchant, 1 Phill. 356. " Everybody speaks of the sum which he has at his banker's, as money; 'my money at my banker's ' is a usual mode of expression. And if it is money at the banker's, it is emphati- cally ready money, because it is placed there for the purpose of being ready when occasion requires." Per KJuriam in Parker v. Marchant. ib. So, we may add, is it common for one to speak of his " cash in bank," mean- ing what he can use as cash; and a man pays one bill he owes in coin or current notes, and another by a check upon his bank. 5. May v. Grave, 3 De G. & Sm. 462. 6. " Cash " or " money in hand " will generally pass one's money on deposit with a bank, as well as "ready money." And per contra will not carry a promissory note. Beales v. Crisford, 13 Sim. 592; Johns. 49. Nor money deposited by another in trust for the testator. Gough Re, 134 N. Y. S. 222. " Picady money " has under pecu- liar circumstances been held to em- brace, for the husband's benefit under a wife's will, the money he had col- lected for her by her authority and expended for household expenses; all her ready monej- " in bank or else- where " being bequeathed to him. Smith V. Burch, 92 N. Y. 228. 7. 1 Schoul. Pers. Prop. 3d ed. §§ 3, 4. 8. Penniman v. French, 17 Pick. 404, 28 Am. Dec. 309; Jackson v. Vanderspreigle, 2 Dallas, 142; Strong V. White, 19 Conn. 238; Ross v. Ross, 79 S. E. 343, 115 Va. 374. See Skin- ner V. Spann, 93 N. E. 1061, 175 Ind. 372 (all "personal property"): 55 So. 289 (all "property"); 77 A. 450, 228 Penn. 248. 635 § 507 LAW OF WILLS. [PART VI. § 507. The Same Subject: Gift of Interest, Income, or Produce of Personalty; Words of Inheritance. Where the gift is made of the interest or produce of a fund to the legatee or in trust for him, without any limitation as to the term of enjoyment, and with no gift over, it will be presumed an absolute gift so as to carry the principal also, even tliough no men- tion be made of the principal.^ But this presumption, like others, may be controlled by the context ; and that which is given as a life annuity cannot be strained by construction into an absolute es- tate.^ A life estate thus given, however, is not to be regarded as a strict annuity, in the sense that no apportionment is permitted on the death of the life beneficiary.^ In short, the bequest of the in- terest, income or produce of a fund to one and his heirs forever, or without limit as to continuance or time, is a bequest of the corpus of the fund itself ; and this effect will be given by construc- tion, whether the gift be made directly to the legatee or through a trustee's intervention.^ This holds especially true where the will makes no gift over, for a partial intestacy should not be presumed.* But where a life interest only is intended, the gift of income en- titles merely to a life estate in the property.^ 9. 2 Wms. Exrs. 1194 and cases Eq. 450, 16 A. 1; Cornwall v. Church, cited; 1 Bro. C. C. 532; Mannox v. 80 S. E. 148. Greener, L. R. 14 Eq. 456; Emery v. 4. Cases supra; Given v. Hilton, 95 Wason, 107 Mass. 507; 132 Mass. U. S. 591, 24 L. Ed. 458. 473; Stretch v. Watkins, 1 Madd. 5. Hopkins v. Keazer, 89 Me. 347, 253; 7 Sim. 178, 197. An indefinite 36 A. 615. Cf. § 503 as to a devis( gift of dividends gives the absolute of the income, etc., of real estate property of the stock. Page v. Leap- And see 118 Tenn. 325, 99 S. W. 198 ingwell, 18 Ves. 463; 3 Ohio St. 369 ("income" limited). See, further And see Hawk. Wills, 123; Hatch v. Hyde v. Rainey, 82 A. 781, 233 Penn. Bennett, 52 N. Y. 359. 540; 135 N. Y. S. 1056 (statute); 82 1. 2 Wms. Exrs. 1195; Blewitt v. A. 1108, 234 Ponn. 82; Harteau Re, Roberts, 1 Cr. & Ph. 274; Hawk 97 N. E. 726, 204 N. Y. 292. In such Wills, 125; McCune v. Baker, 155 a case, the fund upon the life bene- I'enn. St. 503, 26 A. 658. See § 610. ficiary's death falls into the residue. 2. Stone v. North, 41 Me. 265. Wynn v. Bartlett, 167 Mass. 292, 45 3. Lorton v. Woodward, 5 Del. Ch. N. E. 752. 505; Bishop v. McClelland, 44 N. J. 0)30 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 509 § 508. The Same Subject: "Goods"; "Chattels." The word " chattels," and perhaps the word " goods," and cer- tainly the term " goods and chattels," in a will should be presumed to carry the whole personal estate of every description, if unre- strained by the context, including corporeal and incorporeal or in- tangible property of the nature of movables.^ But while choses in action, or incorporeal money rights are embraced under this de- scription, it has been ruled that a bequest of '' goods and chattels " ■or of " personal property " in a certain place would not include choses in ^action, because these have no locality otherwise than by drawing a probate jurisdiction to them.' Context and the circum- stances may solve the testator's intention on this point when doubt or difficulty arises, and the association of words less comprehensive may confine the meaning of the more comprehensive.^ § 509. Descriptions relating to both Realty and Personalty : " Ef- fects " ; Possessions " ; " Things." " Effects " is a word often found in wills : and being equivalent to property or worldly substance, its force depends greatly upon the association of the adjectives " real " and " personal." " Keal and personal effects " would embrace the whole estate ; but the word " effects " alone must be confined to personal estate simply, unless an intention appears to the contrary.^ A bequest of '' all 6. Kendall v. Kendall, 4 Russ. 370; less a different intention appears. 1 1 Jarm. Wills, 751; 2 Wms. Exrs. Yeates, 101. See § 509, note. 1178; Moore v. Moore, 1 Bro. C. C. 9. 1 Sch. Pers. Prop. § 16; Hick v. 127. The word " chattels " includes Dring, 2 M. & S. 448, criticising animals and chattels real, but "goods" earlier authorities; Haw v. Earles, 15 standing by itself appears less com- M. & W. 450. prehensive. 1 Sehoul. Pers. Prop. § But the context may show that 16. real estate was also intended; as 7. Moore v. Moore, supra; Brooke where the testator, referring to a pre- V. Turner, 7 Sim. 681; Penniman v. vious devise, speaks of "my said ef- French, 17 Pick 404, 28 Am. Dec. 309; fects " or directs those to whom his 1 Wms. Exrs. 1178. '• effects " are given to pay an annu- 8. The words " goods or movables " ity out of his real and personal es- in a will carry bonds and money un- tate. 15 East, 394; 2 Jur. 610; Haw- 637 § 510 LAW OF WILLS. [PAKT VI. my effects " may doubtless be so controlled by associated words and the context and surrounding circumstances as to fail of their full natural force: ^ but naturally those words carry the whole per- sonal estate." In the old English law possession and seisin were distinguished ; the latter term could not apply to an estate less than freehold, but the former might. Wbere one gives his " possessions " by' will, the word seems applicable prima facie to both real and personal property, as it certainly is where associated words and the context imply such am intention. But the word " possessions " is seldom used by a professional draftsman; and whenever used, its scope must yield to the testator's probable m( aning.^ By '• things," as opposed in law to the word " persons," is to be understood whatever may be owned of subjects not human;* so that the term appears a comprehensive one, synonymous with property in our present law. But some cases appear to have given it a limited sense in construction, as though confined to the tangi- ble and not extending to cJioses in action where the bequest is of '^ all things " in a particular place.^ § 510. The Same Subject: "Estate"; "Property.^' The word " estate " is a general term, and in modern construc- kins Wills, 55, 56; Page v. Foust, 89 Ambl. 68. Cf. 1 Sch. & Lef. 318, a N. C. 447. decision of doubtful authority for the 1. Ennis v. Smith, 14 How. 400, 14 present day. See also § 508. L. Ed. 472. Apart, perhaps, from property 2. Hodgson v. Jex, 3 Ch. D. 122. purely incorporeal (or intangible), "All my silver, jewelry, and other like the primitive debt, money right, personal effects " does not include or chose in action, it seems to this valuable railroad stock, as against a writer that incorporeal chattels evi- residuary legatee. 74 Ga. 124. And denced by muniment or security, like see § 514. bonds, promissory notes, chattel mort- 3. Blaisdell v. Hight, 69 Me. 306, gages, savings-bank books, stock, etc., 31 Am. Rep. 278; Clark v. Hyman, 1 should pass, out of regard to the Dcv. L. 382. place where such muniment is kept, 4. Bouv. Diet. "Things." Arnold's and that this best accords with a tes- E.state, 87 A. 590, 240 Pcnn. 261. tator's natural intention. See § 512, 5. Popham v. Lady Aylesbury, notes. 638 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. 511 tion may be said to embrace prima facie the whole estate of tlie testator, both real and personal, and his property of every descrip- tion." And the same may be said of '' property," a word which comprehends all things of every nature, to which one may be en- titled to the exclusion of others.^ But in many of the older cases the disposition shown was to confine " estate " in meaning as de- scriptive of personal property only, wherever this was possible, by which means the heir-at-law was of course favored.^ Associated words which pertain exclusively to personal properly, and the con- text generally, may of course indicate that the tcrai " estate " or " property " was applied in the narrower sense in some particular will.^ § 511. The Same Subject: Miscellaneous Terms of Description. Wherever a will purports to dispose of real and personal prop- 6. 1 Salk. 236; Barnes v. Patch, 8 Ves. 604; O'Gorman's Estate, 120 P. 33, 161 Cal. 654 (all assets); Lath- rop V. Merrill, 92 N. E. 1019, 207 Mass. 6; 139 S. VV. 858, 144 Ky. 678 (property) ; Hamilton v. Hodsdon, 6 Moo. P. C' 76; 138 N. Y. S. 194; Hunt V. Hunt, 4 Gray, 190; Smith v. Smith, 17 Gratt. 276; 32 Miss. 107; Archer v. Deneale, 1 Pet. 585, 7 L. Ed. 272; Den v. Drew, 14 N. J. L. 68; Jackson v. Delancy, 11 Johns. 365. And see Given v. Hilton, 5 Otto, 591, 24 L. Ed. 458. 7. Bouv. Diet. "Property"; Spears Ch. 48; 5 Hayw. 104; Rosetter v. Simmons, 6 S. & R. 452; Morris v. Henderson, 37 Miss. 492; Browne v. Cogswell, 5 Allen, 364. The devise or bequest of " all property and effects " may thus embrace real estate outside the State of one's domieil, especially in a residuary gift. White v. Keller, 68 Fed. 796; Moore's Estate, 88 A. 432, 241 Penn. 253. 8. Hawkins Wills, 54; O'Toole v. Browne, 3 E. & B. 572; 6 T. R. 310. 9. See e. g., as to " property," Brawley v. Collins, 88 N. C. 605; 1 Dev. L. 382; Wheeler v. Dunlap, 13 B. Mon. 291. Equity will not pre- sume the devisor meant to include in a devise of his " estate " property which in equity was not his own. 2 Bibb, 407. As to carrying community property, see Haley v. Gatewood, 74 Tex. 281, 12 S W. 25. " Loose prop- erty," is synonymous with " mova- bles " or personal property. Fry v. Shipley, 94 Tenn. 252, 29 S. W. 6. The word " estate " in a devise is descriptive of the subject of property, or the quantum of interest, according to the context. Hammond v. Ham- mond, 8 Gill and J. 436; Jackson v. Merrill, 6 .Johns. 185, 5 Am. Dec. 213; Hart V. White, 26 Vt. 260; Under a bequest of " all ray prop- erty of every description," money, choses in action, and chattels incor- poreal as well as corporeal will pass Hurdle v. Outlaw, 2 Jones Eq. 75. 639 § 512 LAW OF WILLS. [PAET VI. ertj in the same terms and in the same connection, and it is mani- fest that the testator intended both to go together, the will must be so construed/ And in various instances the general residue of a testator's estate, and more especially of personalty, is held to pass under quite informal words and expressions, from which a suitable intent may be gathered." In short, a careful study of the decided cases will show not only that words loosely or inaccurately written may be changed in con- struction from their meaning as they stand, so that terms which literally import personalty may instead be taken as descriptive of realty,^ or vice versa, but that words which in their natural sense are applicable exclusively to the one kind of property, may by force of the context be held to include the other also.* Such an interpre- tation will not, however, be given upon doubtful and ambiguous expressions, or where associated words give a contrary import.^ § 512. The Same Subject. The cases are very many which involve the description of par- ticular words denoting property ; but as social manners change and wills are liable to vary incessantly, both as to the use and force of the language employed, the value of the precedents as establishing rules is by no means proportioned to their number; and a brief reference in the foot-notes may serve well enough our present pur- pose.^ 1. Ireland v. Parmenter, 48 Mich. 5. Haw v. Earles, 15 M. & W. 450. 631. 6. In 2 Wras. Exrs. Pt. III. Bk. 2. 1 Jarm. Wills, 775; Leigliton v. III. c. 2, American edition with Per- Bailie, 3 M. & K. 267; Bassett's Es- kins's notes, may be found an exten- tate Re, L. R. 14 Eq. 54; Singer v. sive collection of precedents in point; Taylor, 133 P. 841, 90 Kan. 285. "All all of them, however, bending to the the rest " may pass both real and per- apparent sense disclosed by the tes- sonal property. Attree v. Attree, L tator In each particular case, and es- I'l. 11 Eq. 280. ])ecially restrained in gifts not re- 3. Doe V. Tofield, 11 East, 246; 3 siduary. Wms. Exrs. 1079; Evans v. Crosbie, "Household goods" will pass all IT) Sim. 600. corporeal chattels of a permanent na- 4. Williams v. McComb, 3 Ired. Eq. ture and not consumed in their use, 4'>0; 18 Jur. 445. that are used in, or acquired by, a 640 CHAP, II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 513 § 513. Description of Gift; Devise; Legacy; Bequest; etc. We may add that while a devise relates in strictness to lands/ testator for his house, and contribute to its convenience or ornament, a Wms. Exrs. 1180, 1185; 1 Rop. Leg. 225; Carnagy v. Woodcock, 2 M'unf. 234; Ambl. 611. But not things which happen to be in the house and are even useful for household pur- poses, but were put there in the way of trade; as 700 beds used for hos- pital purposes under a contract with the government. lb.; Pratt v. Jack- son 1 Bro, P. C. 222. Family plate will thus pass, if in actual use. 2 Wms. 1181. But not articles like wine, malt, and victuals, whose use consists in their consumption. Shin- ning V. Style, 3 P. Wms. 334; 3 Ves. 311. Other words associated with *■ household furniture," may, of course, extend or restrict the sense. See Dennett v. Hopkinson, 36 Me. 350; Ruffin v. Ruffin, 112 N. C. 102, 16 S. E. 1021. A watch carried usu- ally on the person does not pass as " household furniture," nor is it " wearing apparel." Gooch v. Gooch, 33 Me. 535 ; Sawyer v. Sawyer, 28 Vt. 245. " Furniture '' is broadly con- strued in 41 N. J. Eq. 93. Whether it includes a piano, see 59 N. H. 242. See, also, Chase v. Stockett, 72 Md. 235, 240, 19 A. 761., where china and plated ware found in the house were held to be included. " The terms ' fur- niture,' or ' household furniture,' when not associated with less com- prehensive words, embrace everything in the house that has usually been enjoyed therewith; and in this case would have passed the portraits and silver ware, had they not been ex- pressly excepted." lb., citing various English and Amrican authorities. Where the phrase '' personal property and furniture " occurs, it is inferred that the testator distinguished be- tween them. 2 Dem. (N. Y.) 633. Household furniture and portraits are not included in a bequest of jewelry, wearing apparel and " personal ef- fects." 173 Penn. St. 368, 34 A. 58. " Money " does not pass as " house- hold furniture," though contained in a secret drawer of an article of fur- niture. Smith V. Jewett, 40 N. H. 513. Or in a safe, 124 N. Y. 388. As to books, cf. Kelly v. Powlet, Ambl. 611; 3 Ves. 311; Ouseley v, Anstru- ther, 10 Beav. 462. And see 2 Wms. Exrs. Am. ed. 1181-1187, and Per- kins's notes. It is obvious that an enumeration of some of the specific things which the testator means to bequeath is desirable in a bequest of this character. A bequest of " all the household property in the dwelling- house " will include the wood and coal there and a shot-gun. Frazer Re, 92 N. Y. 239. Under " articles of per- sonal use and ornament " a sailing yacht is not embraced. 188 Penn. St. 33, 68 Am. St.* Rep. 847, 41 A. 448, 49 L. R. A. 444. Nor are incorporeal securities, such as promissory notes, included presumablj' in a bequest of corporeal chattels, such as furniture. 84 Me. 170, 24 A. 805; 63 Vt. 236. 22 A. 600. In one case a will gave to A " all my household effects, books and pa- pers of value, and everything tho house contains." This last sweeping ♦expression was treated as restrained by the words preceding; and it was 41 641 § 513 LAW OF WILLS. [PAET VI. and is distinguisliable from what is bequeathed, the terms " de- vise and bequeath " are often conveniently associated. But, in held that neither a note of $100, nor a savings-bank deposit evidenced by a book found with the note among the testator's papers, was included. Webster v. Weirs, 51 Conn. 569. See 65 N. Y. S. 358; Scoville v. Mason, 57 A. 114, 76 Conn. 459. As to " stock on farm," " stock in trade," " plantation stock," '' plant and good will," &c., numerous pre- cedents may be found; and wide elTect is given to the testator's intention of passing here not articles of domestic enjoyment so much as what aids in car- rying on the business pursuit of agri- culture or trade. See 1 Wms. Exrs. 1187, 1188, and Perkins's notes; 3 Atk. 64; 9 M. & W. 23; 4 Jones Eq. 203; 19 Tex. 553, 36 S. E. 377. Stock of medicine, &c., " belonging to or contained in my store," held not to include whiskey in bond upon which excise duty had not been paid. 58 Md. 575. For a devise and bequest of one farm with " stock, grain, and farm- ing utensils " to A, and another farm ■with " stock and farming utensils" to B, and the residue of the estate to C, see Baker v. Baker, 51 Wis. 538, 8 N. W. 289. A devise of per- sonal property " belonging to or used in connection with " the farm, etc., does not include wheat harvested be- fore the testator's death and on the farm awaiting the market. Kempf's Appeal, 53 Mich. 352, 19 N. W. 31. " Property at my bank " is held to pass a cash balance, and also shares of stock in the bank's custody for collection of dividend. Prater Re, 37 Ch. D. 481. See Northrup's Will, 87 N. Y. S. 318 ("law business, books," etc.); 79 N. E. 269, 193 Mass. 271 ( factory products ) . To carry life-insurance money dif- ferently from what the policies con- template is not to be taken by im- plication as a testator's intent. Blouin V. Phaneuf, 81 Me. 176, 16 A. 540; 76 Tex. 293, 13 S. W. 12. Yet a policy payable to one's legal repre- sentatives may be disposed of by will. See Aveling v. Association, 73 Mich. 7, 1 L. R. A. 528, 40 N. W. 28. The word " etc.," added to a par- ticular enumeration of bequeathed ar- ticles, does not carry articles of a difl'erent kind, not used in connection with the foregoing. 152 Mass. 353. A bequest of a bond having an overdue coupon attached, at testator's death, carries the coupon also. Og- den v. Pattee, 149 Mass. 82, 14 Am. St. Rep. 401, 21 N. E. 227. See 139 S. W. 968, 144 Ky. 794. A bequest of bonds in general will carry the coupons. Sanborn v. Clough, 64 N". H. 315, 10 A. 678 (severed). Under a bequest of one's " debts " may pass a draft in the testator's favor and a cash balance at his ban- ker's. 1 Meriv. 541. See, also, 3 Meriv. 434; 11 Ves. 356; 2 Wms. Exrs. 1198. A bequest of a bond, note, etc., bearing interest carries the in- terest due thereon. Perry v. Max- well, 2 Dev. Eq. 448; 2 Keen, 274; 13 C. B. 205. But cf. 2 Atk. 112; Harvey v. Cooke, 4 Russ. 34. The word " north " in a devise may mean northerly, northeasterly, or northwesterly. Weare v. Weare, 59 N. H. 293. And see 71 Me. 596. 042 CHAP. II.] DETAILS OF TESTAMENTARY CONSTEUCTION. il3 furtherance of a testator's intent, the words " bequeath " and " de- vise " . may in any will be treated as synonymous, if the context A bequest of " wearing apparel," etc., and " jewelry, contained in eight trunks " may pass jewelry contained in a valise. 30 How. Pr. 265. " Corn, fodder, meat, and other provisions on hand," may include wine and brandy whicli the testator had provided for his own use. Mooney v. Evans, 6 Ired. Eq. 363. And see Searle v. Fieles, 83 N. E. 901, 197 Mass. 343. From regard to context, railroad and State bonds may pass under the description of " bank stock." Clark v. Atkins, 90 N. C. 629; 47 Am. St. Rep. 538, 113 N. W. 398, 113 Wis. 43. A bequest of " bank stock " will carry savings- bank deposits, the testator having no bank stock. Tomlinson v. Bury, 145 Mass. 346, 1 Am. St. Rep. 464, 14 N. E. 127. As to " shares," see 37 Ch. D. 683. Live stock, such as animals, must of course be excluded where the bequest plainly was of " stock " in this other sense. Capehart v. Burrus, 122 N. C. 119, 29 S. E. 97. See 82 P. 549 ("books and papers"); (1905) 2 Ch. 55 ("pecuniary in- vestment") ; 113 N. W. 398, 133 Wis. 43. The gift of a " trunk and its con- tents " is not controlled by an unat- tested paper inside the trunk direct- ing that money shall be used for certain purposes. Magoohan's Appeal, 117 Penn. St. 238, 2 Am. St. Rep. 660, 14 A. 816. Whether a savings-bank book inside would be thus bequeathed, quaere. lb. In an English case, where the old objection to passing choses in action was discussed, the gift of a desk with its contents was held to carry various checks and promissory notes, as well as coin and bank notes. Robson Re, 2 Ch. (1891) 559. But a key found inside the desk gave no title to a box of securities elsewhere, whicli the key unlocked. lb. Nor does the gift of a box with contents oper- ate as a devise of real estate repre- sented by a deed therein. 159 Mass. 594, 38 Am. St. Rep. 465, 22 L. R. A. 153, 35 N. E. 94. As to " amount," see Garth v. Garth, 139 Mo. 456, 41 S. W. 238. " Judge of probate " is presumed to signify the " court of probate." Allen's Appeal, 69 Conn. 702, 38 A, 701. See further. Wolf v. Schoeffner, 51 Wis. 53, 8 N. W. 8; Edmondson v. Bloomshire, 11 Wall. 383, 20 L. Ed. 44; Parker v. Loan Co., 71 N. E. 894, 163 Ind. 303 (stock at its par value) ; Mortimer v. Potter, 72 N. E. 817, 213 111. 178; 57 A. 114, 76 Conn. 459 (scrip, stock, etc.) ; Drake V. True, 56 A. 749, 72 N. H. 322; Wheeler Re, (1904) 2 Ch. 66 ("ready money"); Lauman v. Foster, 135 N. W. 14 (stock dividend) ; Coudon v. Updegraff, 83 A. 145, 117 Md. 71 (dividend as income) ; 84 A. 629, 80 N. J. Eq. 364 (income gross or net) ; 56 So. 352, 129 La. 415 (annuity). Personal property may be aided in de- scription by location. Clarke Re; (1904) 1 Ch. 294; Blackmer v. Blackmer, 63 Vt. 236, 22 A. 600 (chattels at one's dwelling). As to a life insurance fund, see Small V. Jose, 86 Me. 120. 7. Supra, § 3. 643 § 514: LAW OF WILLS. [PAET VI. requires it; ^ and the words "devise," "legacy," and "bequest" may be applied indifferently to real or personal property.^ Where, however, the testator uses words in their technical sense that sense must of course prevail.^ § 514. Description of Gift; General Terms how far restrained by particular Enumeration. But here let us observe generally of terms which describe a gift by way of devise or bequest, that a general and comprehensive term such as " effects," " goods," " chattels," may be restrained in sense to less than their natural import in a given case by the con- text and associated words under the will. For it is a rule of pre- sumption, especially in clauses not residuary, that where a more general description is coupled with an enumeration of things, the description shall cover only things of the same kind ; ^ and doubt- less words of general description may by due regard to the context be considered as limited by an attempt at particular description.^ Thus a bequest ending " and everything the house contains " may be restrained in effect by prior words detailing the kind of things.* And so, too, where a previous enumeration of such articles as gold 8. Dow V. Dow, 36 Me. 211; Brown were bailed to other persons. 84 Me. V. Taylor, 1 Burr, 268; Thompson v. 185. This is a rule of general appli- Gaut, 14 Lea, 310. cation to personal property of any 9. Ladd v. Harvey, 21 N. H. 514. kind. " Legatee " may be read " devisee " or 2. Given v. Hilton, 5 Otto 591, 24 "distributee," as circumstances re- L. Ed. 458; Andrews v. Schoppe, 84 quire. 15 Sim. 600, 23 Geo. 571. Me. 170, 24 A. 805. 1. Hazclrig v. Hazelrig, 3 Dana, 3. Allen v. White, 97 Mass. 504; 48. The word " legacy " as used by Urich's Appeal, 86 Penn. St. 386, 27 way of reference in a will means nat- Am. Rep. 707; 124 Mass. Ill; Free- urally a pecuniary legacy, and not man v. Coit, 96 N. Y. 63 ; supra, § specific gifts bestowed of trifling 475, 30 Ch. D. 92; Bates v. Kings- value. 171 Mass 84, 50 N. E. 512. ley, 102 A. 306, 215 Mass. 62. This As to a certain sum of money to be rule applies to either real or personal divided, at a time stated after tes- property at the present day. See An- tator's death, in certain stock, see 170 drews v. Schoppe, 84 Me. 170, 24 A. Penn. St. 177, 32 A. 626. 805, and cases cited; § 493. A bequest broadly expressed, of all 4. Webster v. Weirs, 51 Conn. 569. one's animals should include such as 644 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 514 rings, a chest, a box, is followed by the sweeping clause " and all things not before bequeathed," the court has excluded a leasehold right from the bequeet.^ Hence does it happen, as we have al- ready seen, that words so comprehensive when standing alone as " effects," '' goods," chattels," or even " estate " or '' property," may by their juxtaposition with words less broad be treated as re- strained within narrower limits ; the generic being controlled by the specific, by the particulars which describe the property in- tended.® Among the circumstances which bear in favor of reducing the natural scope of general words which a testator uses in description are these: that a subsequent specific bequest is made to the same legatee ; ^ or that particular dispositions have followed in favor of other persons ; ^ or that the clause is not residuary in character ; or, more strongly still, that explanatory and restrictive expressions occur afterwards in connection with the gift.* And the indisposi- tion of courts appears strongest, when choses in action or incor- poreal personalty (which may be evidenced in mere writing to a considerable value), or even money, is claimed, where the par- ticular description indicates that only corporeal cliattels whose in- trinsic worth depends upon what is visible and tangible were in the testator's mind.^ But this rule of restraining a more general description by the 5. Cook V. Oakley, 1 P. Wms. 302. nature and kind soever, except my 6. § 512, note: 1 Jarm. Wills 751; gold watch." Critchon v. Symes, 3 Peaslee v. Fletcher, 60 Vt. 188, 14 Atk. 61. Where " etc." follows words A. 1. of particular description, things ejus- 7. Rawling v. Jennings, 13 Ves. 39; dem generis is meant. 26 Beav. 220; Richardson v. Hall, 124 Mass. 228, 1 Barnaby v. Tassell, L. R. 11 Eq. 363; Johns. Ch. 329. Woodcock v. Woodcock, 152 Mass. 8. Wrench v. Jutting, 3 Beav. 521. 353, 25 N. E. 612. 9. 1 Jarm. Wills 753, 754. As where 1. Benton v. Benton, 63 N. H. 289, the will says: " Whatever I shall have 56 Am. Rep. 512. The gift of the in- at my death, as plate, jewels, linen, come of stocks and bonds implies household goods, coach and horses." further that the principal is not given. Timewell v. Perkins, 2 Atk. 103. Or lb. And see Reynolds Re, 124 " goods, wearing apparel, of what N. Y. 388. 645 § 514 LAW OF WILLS. [PAET VL context and by associated words of narrower import, is after all but a rule of presumption, as we should bear carefully in mind. It yields to the testator's intent as gathered from the whole instru- ment.^ Thus, if a will in its general description purports to dis- pose of all the personal property, or of all the property real and personal, and charges the legatee with the payment of other lega- cies, a broad residuary gift may fairly be implied, notwithstanding an enumeration of particulars.^ And so, too, where the enumera- tion of particulars seems to lead up to a sweeping general term which is added by way of embracing whatever remains unmen- tioned,* and the whole effect is that of a residuary bequest.^ Nor is it essential to the broader construction that the generic term should follow the specific, for there may be a general term, fol- lowed by what was meant to be an enumeration (as under a videlicet or "namely") but a defective one in particulars.^ A misdescription of the particular does not vitiate the correct gen- eral description,^ And Mr. Jannan considers it a conclusive ground in favor of the enlarged sense of an equivocal gift, that the bequest contains an exception of certain things which would not have been comprised under the narrow sense; since the testator, 2. 1 Jarm. Wills, 755-758; Ben- eration of some items before the nett V. Baclielor, Bro. C. C. 29 ; 1 words ' other effects ' does not alter Russ. 276 ; Martin v. Smith, 124 the proper meaning of those words." Mass. Ill; Urich's Appeal, 86 Penn. Hodgson v. Jex, 2 Ch. D. 122. St. 386, 27 Am. Rep. 707; supra, 5. Taubenhan v. Dunz, 125 111. 524, § 475; Given v. Hilton, 5 Otto 591, 17 N. E. 456. "All my cattle" may 24 L. Ed. 458; Andrews v. Schoppe, be restrained by construction to cat- 84 Me. 170, 24 A. 805. tie used merely for stock. 64 Tex. 22. 3. Chapman v. Chapman, 4 Ch. D. " Ornaments " from the context 800. may include articles of jewelry. 75 4. Campbell v. Prcscott, 15 Ves. Cal. 189, 16 P. 774. 50:;, 5 Mad. 69; 6 Mad. 119; Arnold 6. Fisher v. Hepburn. 14 Beav. 627; V. Arnold, 2 My. & K. 365. Lord and see remarks of Romilly, M. R., in Cottonham's statement in Arnold v. ib. This case is followed in Dean v. Arnold seems to be generally accepted Gibson, L. R. 3 Eq. 717, and King by the later English authorities, v. George, 5 Ch. D. 627. though it conflicts with some earlier 7. Martin v. Smith, 124 Mass. Ill; cases; namely, that "the mere enum- Freeman v. Coit, 96 N. Y. 63. G4G CHAP. II.] DETAILS OF TESTAMENTAKY CONSTKUCTION'. § 515 hj showing that without this exception the gift would have included the excepted articles, has afforded a key to his own ambiguous meaning.^ In fine, courts at the present day decline to be hampered by any rule which would sacrifice the testator's true meaning out of undue regard for the association of words of limited scope with broad generic terms; and the modem inclination both in England and America is to treat words of general description as unlimited in sense by an attempt to state particulars where the will as a whole discloses no intention to the contrary ; though not of course where that favorable presumption is overcome.* § 515. The Same Subject. But as Mr. Jarman observes, where the general term has been treated as unrestrained by the particular enumeration, there was no other bequest capable of operating upon the general residue of the testator's estate than the clause in question.^ Partial intestacy under a will is a conclusion to be avoided in construction if pos- sible;^ but where such an alternative is needless, inasmuch as an- other clause in the will contains a residuary provision, and a con- sistent and effective interpretation of the testator's whole mean- ing is thereby given, an argument arises in favor of restraining the effect of the doubtful bequest.^ Property which is devised or bequeathed may be plainly enough described, although reference be made in aid of the de- scription to some other document which cannot be found.'* 8. 1 Jarm. Wills, 756, citing in the notes do not pass in addition to point Hotham v. Sutton, 15 Ves. 319. the sum, but as a part of it. Henry This question, though arising usually v. Henry, 81 Ky. 342; Pepper's Estate, under gifts of personalty restricted to 154 Penn. St. 340, 35 A. 1063. a certain locality, is equally applic- 1. 1 Jarm. Wills, 760, 761. able to other cases. 1 Jarm. 756. 2. Supra, § 490. See Garth v. Garth, 139 Mo. 456. 3. Woolcombe v. Woolcombe, 3 P. 9. See supra, § 475; 1 Jarm. Wills, Wms. 112; 2 D. & Wa. 59; 1 Jarm. 759. Wills 761; Reynolds Re, 124 N. Y. Where a sum of money is be- 388. queathed, " including " all notes, etc., 4. Beckett Re, 103 N. Y. 167, 8 N. 647 § 516 LAW or WILLS. [PAET VI. § 516. A False Description does not vitiate, etc. Latin maxims borrowed from the civil law are not unfrequentlj iipplied in the construction of a devise. One of these maxims, and a familiar one, is that a false description does not injure f that is to sav, that where the description is made up in part of what is true and in part of what is false, the untrue part will be re- jected as not vitiating the devise, if the part which is true describes the subject with sufficient certainty.® The description so far as it is false is taken to apply to no subject at all, and so far as it is true, to one subject only.' This maxim must be taken in furtherance of a testator's intention and not to subvert it. For instance, where one plainly identifies the premises devised by him, and yet calls them " freehold " when in fact they are " leasehold," or vice versa^ or describes the house as tenanted by A when it was tenanted by B, or purchased of A when it was pur- chased of B ; or mentions the farm he gives by will as consisting of about 130 acres when it was much larger or much smaller;* or where he describes a lot accurately except as to the initial point •,^ in these and similar instances the plain identification in the main of what is devised carries the property, and the subordinate misdescription which is superadded may be thrown out in con- struction as surplusage.^ In fact, wherever it is clear that the testator intended to pass specific property by his will, it will E. 506. See further. 190 N. Y. 128, Bear v. Bear, 1.3 Penn. St. 529. But 82 N. E. 1093; Thomas v. Thomas, 82 where there are devises to different N. E. 236, 292 111. 277; 138 N. Y. S. parties, and the actual quantity in- 194. stead of that described would have 5. Falsa demonstratio non nocet left not land enough to satisfy all cum de corpore constat. the devises, this is a circumstance 6. 1 Jarm. Wills, 785. which bears in favor of the more lim- 7. Morrell v. Fisher, 4 Ex. 591, per ited construction. Tewksbury v. Alderson, B. And see 99 N. E. 675, French, 44 Mich. 100, 6 N. W. 218. 255 111. 365. 1. Ehrman v. Hoskins, 67 Miss. 8. Day v. Trig, 1 P. Wms. 286; 7 192, 19 Am. St. Eep. 297. M. & W. 1; Cox v. Bennett, L. R. 6 2. Cases supra; Emmert v. Hays, Eq. 422. 89 111. 11; 8 Or. 303, 34 Am. "Rep. 9. Wliitfield v. Langdale, 1 Ch. D. 581; Wales v. Templeton, 83 Mich. CI; .Aldrich v. Gaskill, 10 Cush. 155; 177, 47 N. W. 238. G48 CHAP. II.] DETAILS OF TESTAMENTAKY CONSTETJCTION. § 517 pass notwithstanding a misdescription of the property, so long as there is enough correspondence to afford the means of identi- fying the subject of the gift.^ To pursue this subject farther. A gift by words of general de- scription, we have seen, is not to be limited by a subsequent at- tempt at particular description.'* " All my real estate " has accordingly been held to embrace a parcel on the south side of the street, even though the lands were described as though all situated on the north side.^ And there are cases where premises are do- scribed as occupied by B when B manifestly occupied only part thereof.^ In short, testing such questions by the true meaning of the will, it may frequently happen that an estate definitely and fully described, may have some particular added which holds good of a part of the estate only, and may therefore be discarded in construction.^ On the other hand, a particular misdescription cannot enlarge the premises whose general description identifies it plainly.^ § 517. But Particulars may qualify a General Description, But where, on the other hand, there is a clear enumeration of particulars which purport on their face to be designed as qualifica- tions of a preceding general description, words of general devise must yield, and the maxim falsa demonstratio non nocet does not apply ;^ but rather the maxim, ex praecedentibus et consequentibus optima fiat inter pretatio} And hence of two adjoining parcels 8. Woods V. Moore, 4 Sandf. 579; 8. Tyrell v. Lyford, 4 M. & S. 550; Huffman v. Young, 170 111. 290, 49 1 Jarm. Wills, 789. See also 99 S. W. N. E. 570. 1093, 301 Mo. 360; 84 A. 554, 118 Md. 4. Supra, §§ 475, 514, 515. 485; Turner's Will, 99 N. E. 187, 206 5. Martin v. Smith, 124 Mass. 11. N. Y. 93; 115 P. 568. 84 Kan. 791; 6. Cro. Car. 129. Cf. L. R. 16 Eq. 95 N. E. 141, 250 111. 297. 177, per Lord Slielborne. 9. Griscom v. Evens, 40 N. J. L. 7. 1 Jarm. Wills, 786, 787; 1 M. & 403; Drew v. Drew, 28 N. H. 489. Sel. 399; Down v. Down, 7 Taunt. 1. From what precedes and what 343; Drew v. Drew, 28 N. H. 489; follows, we must gather the best in- Stewart v. Stewart, 96 Iowa, 620, 65 terpretation. And see § 514. N. W. 976. 649 § 518 LAW OF WILLS. [PAET VI. it may appear that only one was given.^ Nor can words which describe the object of a devise be discarded as false demonstration unless they are clearly repugnant to other descriptive phrases of more importance.^ Where a devise gives the area and also describes by bounds, it is the latter description which controls.* And where reference is made to a map or plan which is on public record for a descrip- tion of the property, it is fair that the boundaries as therein described shall control, if no reason appears to the contrary.^ The same parcel of land may be described in a will by one or more references*^ § 518. Repugnant Description; Language of Will not to be sub- verted. Where something is devised, and there are found two species of property, the one completely corresponding to the description, and the other not so completely, the latter will be excluded while the former takes eifect.^ And generally, in case of a discrepancy between two modes of description, that mode will be followed which is the less liable to mistake.^ ^Tiere, finally, the will clearly purports to give that which the testator has not, the court refuses to subvert its language, upon any conjecture, however plausible, that something of quite a dif- ferent description was really intended ; nor will evidence from without be admitted to show that what is not ambiguously ex- pressed meant other than it purports.^ Thus where a testator having lands in the county A, devises all his estates in county B, where he has nothing, the lands in the former county will not 2. Griscom v. Evens, supra. and to occupation under it. 115 N. 3. Evens v. Griscom, 42 N. J. L. Y. 290, 22 N. E. 219. 579. 7. Ryall v. Bell, 8 T. R. 579, 4 M. 4. Lyon v. Lyon, 96 N. C. 439. & S. 550; 1 Jarm. 791, 792; Morrell 5. Finelite v. Sinnott, 125 N. Y. v. Fisher, 4 Ex. 591. 683, 25 N. E. 1089. 8. Redding v. Allen, 3 Jones Eq. 6. As by reference both to the deed 358. 9. See supra, § 478. 650 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 51 Sa pass ;^ and even tliough partial intestacy be the alternative, the rule is not changed. But an effect so disastrous is sometimes avoided by striking out erroneous particulars where there remains sufficient to identify the property with reasonable certainty. Thus, where the will devised " lots 1 and 2 in block 187 " when the testator owned no such lots, but lots 3 and 4 in that block, the property was treated as sufficiently identified by " block 187," after rejecting particulars as to the numbers of the lots.^ If, on the whole, real estate be devised, the description of which it is im- possible to ascertain, the devise must fail.' § 518a. Real Estate with the Personalty thereon. Where a lot is devised and bequeathed with all the personal property thereon, it passes the live stock, even though the cattle sometimes grazed elsewhere.^ But under a mere devise of land and the buildings thereon, personal property stored in one of the buildings does not presumably pass;^ but there must be such an actual or constructive annexation to the realty as complies with 1. 8 Bing. 244; 1 Jarm. Wills, 795; 73 Wis. 445, 41 N. W. 627. See §§ 1 Mackey (D. C.) 468; Sturgis v. 592-594. As to admitting extrinsic Work, 122 Ind. 134, 17 Am. St. Rep. evidence of the testator's intent where 345, 22 N. E. 996. the description was partly right, cf. 2. Moreland v. Brady, 8 Or. 303, 34 §§ 573, 574, et. seq. The distinctions Am. Rep. 581. See also Black v. run in the cases are sometimes very Richards, 95 Ind. 184. But cf. Sher- close. wood V. Sherwood, 45 Wis. 357, 30 3. Edens v. Miller, 147 Ind. 208, Am. Rep. 757, which appears contra. 211, 40 N. E. 526, and cases cited. A devise of " my house and lot in the See further, 228 111. 23, 81 N. E. 787, town of Patoka, Illinois," is held suf- 119 Am. St. Rep. 409; 95 N. E. 141, ficiently definite in Allen v. Bowen, 250 111. 297; 146 S. W. 18, 148 Ky. 105 111. 361. And see Severson v. 34; 92 N. E. 601, 246 111. 76; Taylor Severson, 68 Iowa 656. But the devise v. Taylor, 93 N. E. 9, 174 Ind. 870. of a farm described will not carry a 4. Martin v. Osborne, 85 Tenn. farm elsewhere. Christy v. Badger, 420, 3 S. W. 647. 71 Iowa 581, 32 N. W. 513; Bowen v. 5. Dana v. Burke, 62 N. H. 627. Allen, 113 111. 53, 55 Am. Rep. 398. In this case a boat was stored in a The direction for a division of the barn. Nor would the boat pass under testator's land may be void for un- a bequest of household furniture, certainty of description. Ehle's Will, lb.; § 513. 651 § 519 LAW OF WILLS. [PART VI. the law of fixtures in order to divest a chattel of that original character.^ Where, too, in the clause of a will not residuary, real estate is specifically devised and bequeathed, with all its lands, buildings, and appurtenances, " including all the furniture and personal property " in and upon the same, or in any manner con- nected with it, and there is a vault upon the premises which con- tained various incorporeal kinds of personalty, such as stocks and bonds, at the testator's death, such securities are not presumed to be included but go rather to the residuary legatee.'^ § 519. Residuary Bequest of Personalty; its Effect. A general residuary bequest of personal property operates upon all the personal estate which the testator may have at his death, and prima facie carries with it not only whatever remains undis- posed of by his will, but whatever despite the will fails of disposi- tion in the event from one cause or another.^ It includes in con- s^uence both lapsed and void legacies, those which turn out void, and those which fail by the death of the legatee while the testator was alive.^ For a presumption (to quote from Sir Wm. Grant) arises in favor of the residuary legatee against every one except the particular legatee, since a testator is supposed to give his personalty •away from the former only for the sake of the latter.^ And the English precedents require strong words in any will to rebut this presumption in favor of the residue.^ 6. lb. And see, generally, as to fix- 392; Drew v. Wakefield, 54 Me. 296; tures, 1 Sch. Pers. Prop. §§ 111-133. Firth v. Denny, 2 Allen 471; Wool- 7. Reynolds Re, 124 N. Y. 388 and mer's Estate, 3 Whart. 480; 4 Barb, cases cited. And see §§ 514, 515. 90. 8. 1 Jarm. Wills, 645, 761; Hawk- 1. Cambridge v. Rous, 8 Ves. 25. ins Wills, 40. All the personal prop- 2. Bland v. Lamb, 2 J. & W. 406; erty passes to the widow by the words 12 Jur. 547, 16 Ves. 451; Clowes v. " all the personal property is hers," Clowes, 9 Sim. 403 ; Leake v. Rob- thoiigh some is specifically mentioned inson, supra. Even where a resi- as bequeathed to her. Risk's Appeal, duary clause gives all " except " cer- 110 Penn. St. 171, 1 A. 85. tain specific legacies (which liappen 9. Brown v. Higgs, 4 Ves. 708; 2 to fail) or " not already disposed of," Ves. 285; Tindall v. Tindall, 23 N. J. tlie courts incline to favor the resi- Eq. 244; Leake v. Robinson, 2 Mer. duary legatee in construction. 2 ColL 652 CHAP. II.] DETAILS OP" TESTAMENTARY CONSTRUCTION. § 519 ISTevertheless, this strong presumption in favor of the residuary- legatee, where personalty is concerned, is liable in any case to be rebutted, like any other presumption in testamentary construction ; and where the will shows that the testator meant that the residuary gift should take only a limited effect, that meaning must operate.* Thus there may be an express reservation against the residue in language not to be mistaken.* And the gift of residue may be re- stricted by the context, or by provisions inconsistent with a more liberal construction.^ Moreover, as by " residue " we mean that which is only disposed of effectually in the residuary clause, any part of the residue which itself fails does not prima facie swell the remaining part of the residue, but goes as estate undisposed of.^ Where legacies are given to several legatees, and the residue is bequeathed to the same legatees, it follows that the residue will not include a lapsed legacy to one of them." In general, the compre- hensive import of the word " residue " does not prima facie ex- tend to a gift of that residue ; for a gift " of the residue " of the residue of one's personal estate is, in fact, a gift of the residue of a particular fund.^ 516; 10 Beav. 276; 1 Jarm. Wills 762; of intention as before. 1 Jarm. 764; 20 Beav. 579. Evans v. Field, 8 L. J. N. S. 264. 3. 1 Jarm. Wills. 762; Hawkins 7. Lombard v. Boyden, 5 Allen 251; Wills, 41. Craigbead v. Given, 10 S. & R. 353. 4. Davers v. Dawes, 3 P. Wms. 40; 8. Hawkins Wills, 43; 1 Sw. 566. Amb. 577; Kay 507; 45 Minn. 48. Thus, if the testator gives £10,000 out 5. Ludlow v. Stevenson, 1 De G. & of the residue of his personal estate J. 496; Baker's Appeal, 115 Penn. to A, and the residue to B, and the St. 590, 8 A. 630. bequest to A fails, the gift to B will 6. Hawkins Wills, 41, 42; Sykos v. not generally carry this £10,000 to Sykes, L. R. 4 Eq. 202; Skipwith v. him, but the sum will go as undis- Caball, 19 Gratt. 786; 1 Jarm. 764; posed of. Green v. Pertwee, 5 Hare 1 Sw. 566; Humble v. Shore, 7 Hare 249: 1 Sm. N. S. 115; White v. Fisk, 247. For, should a residue be given 22 Conn. 35; Beekman v. Bonsor, 23 in moieties, to hold that one moiety N. Y. 312, 80 Am. Dec. 269. lapsing shall accrue to the other. The English rule under the Stat- would be to hold that a gift of the ute of Victoria regards a general resi- ^oiety shall eventually carry the duary bequest as including not only ■whole. Plumer, M. R., in 1 Sw. 566. personal property which the testator But this is after all a mere question ineflfectually attempts to bequeath, 653 § 520 LAW OF WILLS. [PART VI. § 520. The Same Subject: General Bequest of a Particular Residue. Where a general bequest is made of chattels of a particular de- scription, — as of all one's mortgages, or stocks, or moneys in bank, — the bequest will carry whatever chattels of that description the testator leaves at his death, whether less or more than he might have expected to leave when the will was made.^ And by analogy to the doctrine of our preceding section, the general bequest of residue answering to this particular description will embrace all of that kind whose disposition has failed in the event from any cause.^ But where the testator gives the residue, as of a definite sum or a definite ascertained fund, the bequest of a particular residue has no such comprehensive force.^ It may be of importance to consider, when construing a will, whether the word " residue " or the residuary gift, however ex- pressed, comprises the general personal estate or is confined by the context to such portion of a particular fund already dealt with as remains undisposed of ; ^ for in this latter case the bequest of " residue," even in its widest sense, can carry no more than the particular residue.^ In a bequest of the residue of one's property " of every description," words which merely describe the different kinds thereof are presumably not of limitation but illustration.^ but property over which the testator 2. L. R. 2 Eq. 276 ; Easum v. Apple- has a general power of appointment ford, 5 My. & Cr. 56. As to the nat- and which he has by the will inef- ural import of making an express fectually appointed. Hawkins Wills, charge upon the fund, see Baker v. 41; Spooner's Trusts, 2 Sim. N. S. Farmer, L. R. 3 Ch. 537; 11 Ch. D. 129, 1 Johns. (Eng.) 276, § 526, 949. And see 1 Jarm. Wills, 7"65-767, A gift of " all my personal prop- where the English cases are collated, erty," the land having been devised The testator's intent as shown in the specifically, may be presumed a gift whole will solves all such questions, of the personal property remaining and dispenses with abstruse maxims after the payment of debts. 110 under this head. Penn. St. 171, 1 A. 85. 3. 1 Jarm. 767; Boys v. Morgan, 9. 1 Jarm. 691, 765; Page v. Young, 3 M. & Cr. 661. L. R. 19 Eq. 501, 4. Jull v. Jacobs, 3 Ch. D. 703; 58 1. Do Trafford v. Tempest, 21 Beav. How. Pr. 107. 504. 5. Burnside's Succession, 35 La. 054 CHAP. II.] DETAILS OF TESTAAf J^NTARY CONSTRUCTION. § 521 And in a division of residuary estate, one may pre:>cribe an exon- eration of any particular share from debts and legacies and thus give it an equal or a preferential import.^ § 521. Residuary or General Devise, and its effect. As for a residuary or general devise of real estate, the rule has not corresponded in construction to that of the residuary bequest. In the lirst place, the old law^ permitting a testator to devise only the real estate to which he was actually entitled when the will was m^de, and none acquired subsequently,'' it followed that the devise, however general in terms, was in effect specific; or rather it dis- posed specifically of what was not already expressed to be given by the will. On general principle the heir-at-law was favored as much as possible,^ even to the detriment of a residuary devisee ; and accordingly a specific devise lapsing by the death of a devisee, the heir and not the residuary legatee took the advantage;^ and in fact whether a devise lapsed or was void ah initio, the residuary devise did not absorb it.^ This rule has produced some refinements of construction which are no longer of much consequence ; for modem legislation both in England and America puts personal and real estate on substantially the same footing in this respect, treat- ing both lapsed and void devises as accruing prima facie to the residuary fund ; so that consequently the residuary devisee or lega- tee shall take the essential benefit unless the will discloses an in- An. 708. A residuary bequest may distinguish in favor of a void devise, carry a recognized claim upon the Lord Ellenborough, for instance, government. Pierce v. Stidworthy, Stewart v. Sheffield, 13 East 527; 33 79 Me. 234, 9 A. 67. L. J. Ch. 582; Hawkins Wills 44. But 6. Addeman v. Rice, 19 R. 1. 30, 31 lapsed and void devises stand in rea- A. 429. son on the same footing. 1 Jarm. 7. Supra, § 29. Wills, 647 and cases cited. And Lord 8. Supra, § 479. Camden lays down the rule emphat- 9. 1 Jarm. Wills, 645, 646; Good- ically against the residuary legatee right V. Opie, 8 Mod. 123; Fort. 182, wherever the testator intended to de- 184; Prescott v. Prescott, 7 Met. 141. vise the residue exclusive of a part ' 1. Tongue v. Nutwell, 13 Md. 415. given away. Amb. 645. See also Some English authorities appear to Ferguson v. Hodges, 1 Harring. 528. G55 § 522 LAW OF WILLS. [PAKT VI. tent to the contrary.^ Morooverj in England and our several States, after-acquired real estate may pass bj a will, and the instrument may speak with reference to all property, re^l or pergonal, as of the date when it comes into operation, or, in other words, when the testator dies.^ Under the statute policy, therefore, which applies to wills made within the last half-century, or more, the analogies of legacies and devises fairly harmonize in construction, so far as residuary gifts are concerned. The intention to carry lapsed and void devises, as well as the estate undisposed of, to the residuary devisee, is not to be defeated in construction by expressions like " all other land," or " all land not hereinbefore devised." * Yet an express reser- vation or exception against the residuary devisee or in favor of heirs would receive its due interpretation. So, too, the general devise of a particular residue, as of the rest of the testator's lands in the town of A, should receive a limited and particular effect.' And once more, if the general residuary devise fails to take full effect as to some aliquot share, the presumption is that so much of the land lapses to the heir as property undisposed of.* § 522. Devise of Residue, etc.; Residuary Clause. A devise of " all the residue " of the testator's property or of his estate, is presumed to pass real as well as personal property ; ^ 2. Stat. 1 Vict. c. 26, § 25; Cogs- 6. Supra, § 519; Greated v. well V. Armstrong, 2 K. & J. 227; Greated, 26 Beav. 621. And see 1 Thayer v. Wellington, 9 Allen 284; Jarm. 651, 652. Deford v. Deford, 36 Md. 168 : Mas- A devise and bequest of " all my sey's Appeal, 88 Penn, St. 470, 1 estate, both real and personal, that Jarm. Wills 646, 651, and American I shall inherit as my portion after notes; Drew v. Wakefield, 54 Me. 296; my father's death," receives full ef- Kip V. Kortland, 7 Hill (N. Y.) 348; feet as to real estate, in 140 Penn. 18 R. I. 62, 19 L. R. A. 413, 25 A. St. 325, 21 A. 398. And see 56 A. 840. 656, 98 Me. 167; Davis v. Davis, 57 3. Supra, §§ 29, 486; Stat. 1 Vict. N. E. 317, 62 Ohio St. 411, 78 Am. §§ 3, 24. St. Rep. 725; Rickman v. Meier, 72 4. Green v. Dunn, 20 Beav. 6. N. K. 1121, 213 111. 507. 5. Springett v. Jennings, L. R. 10 7. Faust v. Birner, 30 Mo. 414; Eq. 488; ib. G Cli. 333; supra, § 521. Fraser v. Hamilton, 2 Desaus. 573; 1 656 CHAP. II.] DETAILS OF TESTAMENTAKY CONSTRUCTION. § 522 meaning by " residue " whatever surplus may be left after all lia- bilities of the estate are discharged and the other specific purposes of the will carried into effect ; * and so with kindred expressions such as " all the rest and residue " or " all the rest, residue, and remainder." ^ If heirs or kindred are expressly excluded from benefit under the will, all the clearer is the import of expressions like these.^ In other words, a general sweeping residuary clause carries everything presumably, which is not otherwise effectually disposed of, and if " estate real, personal and mixed," be used in this connection the import is plain enough. And a devise of rest, residue, and remainder in real estate will pass a fee, under the modern rule, even though no words of limitation or inheritance be added.^ Such words as " rest," " residue," " remainder," are not indis- pensable to a residuary bequest of personal estate ; but in various instancesi words and expressions quite informal have been given Wash. 45; Molineaux v. Raynolds, 55 N. J. Eq. 187; 113 N. Y. 337; Smith V. Smith. 141 N. Y. 29; cases infra; §§ 508-510. 8. Jones Eq. 302; Smith v. Terry, 43 N. J. Eq. 659, 12 A. 204; 45 Minn. 48, 47 N. W. 308. 9. 2 Jones Eq. 215; 2 Desaus. 422; Parker v. Parker, 5 Met. 134; Smith V. Smith, 17 Gratt. 268. 1. Atkins V. Kron, 2 Ired. Eq. 58. A gift of " all the balance " of the testator's property, both real and per- sonal, " to the exclusion of all others," clearly imports an intention to pass all the real estate of which the tes- tator should die seized. Wynne v. Wynne, 23 Miss. 251, 57 Am. Dec. 139. " Balance of my estate " is exhaust- tive, carrying both real and personal estate. Grimes v. Smith, 70 Tex. 217; 86 A. 291, 238 Penn. 153. 2. Parker v. Parker, 5 Met. 134. But where one gives by will abso- lutely to certain persons, and in cer- tain contingencies " what may re- main " after the death of such per- sons to others, the words " what may remain " can mean no more than what might survive ordinary use, wear, and decay. Robertson v. Johnston, 24 Ga. 102. Where " all my worldly goods," etc., are given, " likewise my house and lot," this does not carry other real estate owned by the testator, but not otherwise mentioned or referred to. Parish v. Cook, 78 Mo. 212, 47 Am. Rep. 107. But as between a specific devise of real estate and a devise by way of residue not speci- fied, see 31 N. J. Eq. 560. See Corn- wall V. Church, 80 S. E. 148 (W. Va.) ( " remainder " construed as " resi- due"). 42 657 § 523 LAW OF WILLS. [pART VI. this effect, out of regard to the testator's obvious intention.^ A devise of this character has been held, agreeably to the intent of the will, to carry all the real estate, although " money " was the term employed."' While the residuary clause in a will is usually the last of its disposing provisions, still, the fact that it is not the last, is not of controlling consequence as against the true intent to be gathered from the whole will; and where the words of a, residuary clause are sufficient to constitute one a general residuary legatee it will not be readily assumed from other terms of the will that a less beneficial interest was intended.^ § 523. Residuary Bequest or Devise as to Intermediate Income. A general residuary bequest, even though contingent in terms, will carry the intermediate income which is undisposed of but ac- cumulates ; ^ or at all events until the law against long accumula- tion stops it and turns the stream to the next of kin.^ Even though this personalty or part of it is to be laid out in lands, the income like its corpus continues personalty meantime, and the rule holds good.* But as for future specific bequests generally, the rule is that the intermediate income does not pass to the legatee before the period of vesting.^ 3. Leighton v. Bailie, 3 M. & K. Low, 127 P. 1027, 164 Cal. 107 ; Bush- 267; 2 Phill. 578; L. R. 14 Eq. 54; 1 by v. Newhall, 98 N. E. 1032, 212 Jarm. Wills, 775; Wynne v. Wynne, Mass. 432; Haynes v. McDonald, 96 supra; Morton v. Woodbury, 153 N. N. E. 823, 252 111. 236; 101 N. E. Y. 243, 47 N. E. 283. 269, 87 Ohio St. 293. 4. Jacob's Appeal. 140 Penn. St. 6. Trevanion v. Vivian, 5 Ves. 430; 268; 23 Am. Rep. 230, 11 L. R. A. 2 Atk. 472; 1 Jarm. Wills 652; Hawk- 767, 21 A. 318. ins Wills, 43; Fleming v. Boiling, 3 5. Morton v. Woodbury, 153 N. Y. Call 75 ; Cochrane v. Schell, 140 N. Y. 243, 47 N. E. 283. But cf. Markle's 516, 35 N. E. 171. Estate, 187 Penn. St. 639, 41 A. 304. 7. Wade-Gery v. Handlcy, 1 Ch. D. See further 72 N. E. 1121, 213 111. 653; 3 ib. 374. 507; Haug v. Schumacher, 60 N. E. 8. Boctive v. Hodgson, 10 H. L. 245, 106 N. Y. 506; Durham v. Clay, 65G. 134 S. W. 153, 142 Ky. 96 (after- 9. Wyndham v. Wyndham, 3 Bro. acquired property); McDougald v. C. C. 58; 4 ib. 144; Hawkins Wills, 44. 658 CHAP. II.] DETAILS OF TESTAMENTARY CONSTKUCTION. § 523 On the other hand, devises of real estate to take effect at some future period, or when the devise itself is contingent or deferred in point of enjoyment, do not in general carry the intermediata i*€nts and profits prior to the period of vesting; and whether the devise be specific or residuary, the income, rents, and profits, which accrue during the suspense of vesting, descend as estate undis- posed of; thus affording another instance in which the heir-at-law is favored in construction above the beneficiaries named in the will ;^ for the residuary legatee of personalty took what the law withheld in a corresponding case from the residuary devisee. Thus, if real estate is given to the use of an unborn person or in trast for him, and the will does not dispose of rents and profits in the meantime, they do not accumulate, but descend to the heir- at law.^ But once more, if the testator's residuary real and personal estate are blended in one gift, though contingent and future in terms, the will applicable to personalty is presumed to have been intended for both, and intermediate rents and profits of real estate are carried as well as the income of the personal estate.' And a residuary clause plainly expressed with respect to income will control, as it would appear, in any case.* Where there is When the policy of the law is violated Appx. 1 ; 1 Jarm. Wills 652, Hawkins by a direction to accumulate, no Wills 45. effect should be given to the inten- 2. Hopkins v. Hopkins, supra. See tion of the testator, and the distri- § 503 ; Parker v. Chestnutt, 80 Ga. 12. bution should be in accordance with 3. Genery v. Fitzgerald, Jac. 468; the statute without regard to the Ackers v. Phipps, 3 CI. & F. 691; will; but a temporary accumulation Rogers v. Ross, 4 Johns. Ch. 397; which forms a reasonable contingent Hawkins Wills 45; 1 Jarm. Wills, 653; fund in anticipation of a decrease of 140 N. Y. 516, 35 N. E. 171. But by income, whether it arises from fortui- this is meant a blending of real and tous causes in the management of the personal estate in the gift, and not trust or from testamentary design, a mere reference. Hodgson v. Bee- may lawfully be retained. Howell's tive, 1 H. & M. 397. Estate, 180 Penn. St. 515, 37 A. 181. 4, 1 Jarm. 652; Duffield v. Duf- 1. Genery v. Fitzgerald, Jac. 468; field, 3 Bli. X. S. 621. See Lord Hopkins v. Hopkins, Ca. t. Talb. 44, Brougham in Ackers v. Phipps, 6 CI. 1 Atk. 580 (where it is reported im- & F. 691, criticised. Hawkins Wills perfectly) and cited Hawkins Wills, 46 & Appx. 1. 659 § 524 LAW OF WILLS. [pART VI. not a postponed or contingent gift of the residue, but a particular interest to commence m futuro in a fund already constituted, it would appear that intermediate income is not carried either of real or personal estate.^ § 524. Residuary Bequest or Devise as to Gift of Proceeds of Sale, of Reversionary Interests, etc. Gifts of the proceeds of real estate directed bj the will to be sold, and gifts of money charged on land, like devises of land, do not, prima facie, fall into the residue, upon lapse, unless local legislation changes the rule.® But this rul'e yields to a clear di- rection in the will which shows a contrary intent.'' Where execu- tors are directed to manage a certain farm and apply its revenues for the support and benefit of persons named, the latter have no vested right to the personal property on the farm.^ As to reversions, we may, add, the modern rule which extends the scope of a devise to after-acquired lands, favors a more liberal treatment of such undisposed-of interests than formrly; and in general, a residuary devise or bequest will now, without distinc- tion of real or personal esate, include every reversionary interest which remains undisposed of by the previous gifts in the will, whether in remainder or possession, whether the same be a re- version remaining after an interest created by the will or not.' Stat. 1 Vict, c, § 24 does not affect Concerning the meaning of the word the question regarding intermediate " revert " see 38 S. C. 66. income of residuary real estate. 1 9. 1 Jarm. Wills, 654-663, and Jarm. 653. cases cited passim; Church v. Mundy, 5. Weatherall v. Thornhurgh, 8 12 Ves. 426; Glover v. Spendlove, 4 Oh. D. 261, L. R. 20 Eq. 255. Bro. C. C. (Perkins's ed.) 338, note; 6. Amb. 643, 1 V. & B. 410; Ar- Brigham v. Sliattuck, 10 Pick. 306; nold V. Chapman, 1 Ves. Sen. 108; Brattle Square Church v. Grant, 5 Hawkins Wills 47; supra, § 521. Gray 142, 66 Am. Dec. 356. 4 Kent 7. lb.; Diirour v. Motteux, 1 Ves. Com. 10; 3 Bradf. (N. Y.) 73; Youngs Ren. 320; Heph install v. Gott, 2 J. & v. Youngs, 45 N. Y. 258; Harper v. H. 450. Blean, 3 Watts 473. 27 Am. Dec. 367; 8. Beirne v. Bcirne, 33 W. Vt. 663, Woodman v. Woodman, 89 Me. 128, 11 S. E. 46. 35 A. 1037. 660 CJIAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 525 This rule does not take effect, however, where upon the whole will, it appears that the testator not only foresaw what would happen, but intended to dispose differently ;^ and not to enter into a close comparison of discrepant authorities, we may leave each will to serve as its own criterion with this brief statement of modem maxims. For exceptions consistent with a particular testator's intent may be indicated as to any residuary gift; and this should always be kept in mind. § 525. Devises and Bequests in Execution of Powers. To speak finally of devises or bequests as operating by way of appointment or in execution of some power which is vested in the testator, the earlier rule of construction has been that devises and bequests prima facie do not include property which was not the testator's own but of which he had a power to dispose ; or, in other words, that an apparent gift of such property by the testa- ment is not enough without clearer marks of his intention to exe- cute the power in question.^ But a distinct description of the property embraced under the power is held to manifest sufficiently one's intention to execute it by the testamentaiy gift.^ And if a testator should devise " all his lands " or ^' all his lands in A," and no real estate of his own answered the description, lands over which he had only a power might pass by the devise, rather than leave the whole disposition nugatory.* 1. 3 Sandf. (N. Y.) 96; Johnson testator for life, with remainder as V. Stanton, 30 Conn. 301 ; Hawkins he should by deed or will appoint, etc. Wills 47, note by Swords. 3. David's Trusts Re, 1 Johns. As to proceeds of a policy of in- (Eng.) 495; Hawkins Wills 23. siirance payable to some particular 4. 1 Jarm. Wills 676; 1 Sugd. Pow. person, see Davies Re, (1892) 3 Ch. 916, 8th Ed.; Hawkins Wills 24; 63. Denn v. Roake, 6 Bing. 475; Standen 2. 6 Co. 17 b; Andrews v. Emmot, v. Standen, 2 Ves. Jr. 589. The bur- 2 Bro. C. C. 297; Hougham v. Sandys, den is on the party claiming an ap- 2 Sim. 95 ; Hawkins Wills 22 ; 1 Jarm. pointment by will to show that the Wills 676-682; 1 Atk. 559. Thus, a testator had no other real estate gift of " all my real estate " or " all when the will was made. Caldecott my personal estate " will not include v. Johnson, 7 M. & Gr. 1047. real or personal estate settled on the GGl § 526 LAW OF WILLS. [pART VI. § 526. The Same Subject. The Statute of Victoria shifts this presumption, or rather, so far as general powers are concerned ; for a special power to appoint, or a power limited to a particular class of objects, is left as before. And the present rule of construction is accordingly that general devises of real estate and bequests of personal estate which are generally described will be presumed to include real or personal estate which the testator may have power to appoint generally, unless the will discloses a contrary intention,^ American statutes establish this rule with some local variations for this country; and the inclination now appears in our leading States to regard a general devise or bequest as operating jyrirrui facie in execution of whatever general power of disposal may he vested in the testa- tor." Independently, indeed, of legislation, the general tendency in the United States has been to treat the presumption against intending to excute a power as one of no great force, whether with regard to a devise or bequest; since this might be overcome by some reference in the will to the power, or by some reference to the property which was subject to the power, or where the pro- vision of the will could not otherwise take effect; or wherever else the interpretation of the will under all the circumstances showed that the testator probably had it in view to execute the power.^ But a mere residuary clause would not thus operate;^ and wherever 5. Stat. 1 Vict. c. 26, § 27, which, Allen, 397; White v. Hicks. 33 N. Y. it is observed, speaks of general real 383; 1 Bradf. (N. Y. ) 114; Andrews and personal property which the tes- v. Brumfield, 33 Miss. 108 ; 4 Kent tator has power to appoint " in any Com. 334, 335 ; Kimball v. Bible manner he may think proper." 1 Society, 65 N. H. 139, 23 A. 83, 85. Jarm. Wills 682, Hawkins Wills 27. 7. See this subject ably discussed A power is general under this act, by Story, J., in Blagge v. Miles, 1 though capal)le of being executed by Story 426; 4 Kent Com. 334, 335. will oidy. 24 Beav. 403; 3 Sim. & The avowal in the will of an intent to Gif. 303. And see Wilkinson lie. L. execute a power is itself an execu- R. 4 Ch. 588 ; Boyes v. Cook, 14 Ch. tion of it without any express de- D. 52; § 519, note. claration. Blake v. Hawkins, 8 Otto 6. Hawkins Wills 27, and Sword's 315, 25 L, Ed. 139. iiot<": 1 Jarm. Wills 676, and Bige- 8. Amory v. Meredith, 7 Allen, 397; low's note; Amory v. Meredith, 7 Blagg v. Miles, supra; Hawkins Wills GG2 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 528 the circumstances are open to inquiry in a doubtful case, the rule lia^ been that tlie circumstances as existing when the will was made furnish the only criterion of intent, and that matters sub- sequent cannot be considered.^ § 527. Correction of Errors in describing Property. That moulding of language of which we have spoken/ in order to further a testator's obvious intention, is preserved within pru- dent limits where a misdescription of what is given appears. Thus, for the sake of correcting what is manifestly a clerical error, and giving a sensible meaning to what would otherwise be absurd, "rent and personal " property has been read " real and personal."^ But to enlarge the phrase " the rest of my estate personal " to " the rest of my estate real and personal " is beyond the power of the court ;^ for this would be too much like making a will for the testator, a practice which might lead to intolerable abuse. § 528. Object of Gift next to be considered. Next to the description of the gift itself in testamentary con- struction let us consider the person or persons who may be the ob- ject of the gift. Of personal incapacity to take under a will, com- plete or partial, -v/e have already discoursed in general ; applying the doctrine to aliens, subscribing witnesses to the will, corpora- 22 ; Harvard College v. Balch, 171 Victoria. Supra, § 299 ; Stat. 1 Vict. 111. 275. c. 26, § 10. 9. Boyes v. Cook, 14 Ch. D. 52. Cf. 1. Supra, § 477. Funk V. Eggleston, 92 111. 515, 34 2. Baird v. Boucher, 60 Miss. 320. Am. Rep. 136. And so in other cases of the kind, pro- Under the English act a will may vided the proper correction can be operate as executing a power subse- gathered from the context. North- quently created. 1 Jarm. 676, Bige- em's Estate Re, 28 Ch. D. 153; c. 3, low's note; Boyes v. Cook, supra. post; § 516; 58 So. 190. But not powers which do not come 3. Graham v. Graham, 23 W. Va. into existence while the testator was 36; 4S Am. Rep. 364. Not even alive. 32 Beav. 31. We have already though the codicil recited that the seen that wills executed under a testator had by his will disposed of power are deprived of all peculiar- his " estate real and personal," would ities of execution under the Statute of the court make such a change. 663 § 529 LAW OF WILLS. [pART VI. tions, infants, insane persons, those under coverture, and the like,^ Uncertainty, whether in the gift or the object of the gift, or the interest given, we shall consider at some length hereafter.^ But let us now lay down some leading principles of construction appli- cable to the objects of gift by testament. § 529. Gift to Children, etc., as a Class, how treated. And first, to speak of children, grandchildren, or other near relatives to some person of a given class. Our law, instead of supposing that a gift to objects thus brought together, should in- clude naturally all of that class who may fulfil the description at any time, presumes rather that the testator intended the class to be ascertained upon his death, and neither earlier nor later. Hence a devise or bequest to the children of A, or of the testator, means prima facie to those of that class in existence at the testator's death, provided there be any at all to answer that description;® and this rule extends to grandchildren, issue, brothers, nephews, and cousins.^ Nor is this presumption to be varied, whether an aggregate sum, like $5000, be given to the class, — as $5000, to the children (or grandchildren, or brothers, etc.) of A, — or a cer- tain sum to each member of the class, as to the children (or grand- children, or brothers, ete.) of A, $1000 each.^ As we shall pres- ently see, it is an immediate gift, or one to take effect in possession upon the testator's death, to which this maxim most properly ap- plies. This rule of construction as to the class of children or near rela- 4. Supra, §§ 23-27. As to our mod- 7. lb.; Baldwin v. Rogers, 3 D. M. ern policy unfavorable to subscrib- & G. 649 ; Myers v. Myers, 3 McCord ing witnesses in this respect, see § 357. Ch. 214; State v. Raughley, 1 Houst. 5. C. 3, post. 5fll; next note; Smith v. Ashurst, 34 6. Viner V. Francis, 2 Cox 190; Kay Ala. 210; Whall v. Converse, 146 638; Hawkins Wills 68; Jenkins v. Mass. 345, 15 N. E. 660; § 563. Freyer, 4 Paige 47; Downing v. Mar- 8. Mann v. Thompson, Kay 638. shall, 23 N. Y. 373, 80 Am. Dec 290; See also Chasmar v. Bucken, 37 N. J. Worcester v. Worcester, 101 Mass. Eq. 415; Robin-on v. McDiarmid, 87 132; 2 Jarm. W^ilis 154, 156, and N. C. 455. As to any lapse during Bigelow's note. testator's lifetime see 19 Barb. 494. 664 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 52{> tives will apply even though words of additional description are •used ; ^ but if the description be such as narrows the gift to per- sons individually specified, and now living, — as in the gift to the children of A, namely, B., C. and D,^ — or, on the other hand, ex- tends it to those of that class who may be born and begotten after the testator's death, — as in the gift " to all grandchildren now bom or to be hereafter bom during the lifetime of their respective parents," — the manifest intendment of the will takes ^ effect accordingly.^ But such exceptions only arise upon sensible grounds of inference, and a doubtful ex- pression in one part of the will may be cleared or cor- rected by reference to what the instrumnt imports in other parts, and taken as a whole.^ In short the disposition is to regard all testamentary gifts to members of a class consisting of children, grandchildren, issue, brothers, nephews, or cousins, as intending prima facie that class as it may exist at the testator's death, whether the eifect be to reduce or to extend the number of individual beneficiaries entitled to the fund.* 9. Examples are aflForded in Hawk- ins Wills 68, 69. As, if the gift be to the children " of the late A," a person dead at the date of the will, or to the " present born children of A." Leigh v. Leigh, 17 Beav. 605. And see Lee v. Plain, 4 Hare 250; Paul V. Compton, 8 Ves. 375 ; Kay 638. 1. Bain v. Lescher, 11 Sim. 397; Williams v. Neff, 52 Penn. St. 333; Morse v. Mason, 11 Allen 36; L. R. 8 Eq. 52. So with other expressions which show that only relatives now living are contemplated. 2 Jarm. 155; Starling v. Price, 16 Ohio St. 32. As, for instance, " to the five children of A." Smith's Trusts Re, 9 Ch. D. 117. 2. Scott V. Lord Scarborough, 1 66, Beav. 154; 56 N. E. 831, 176 Mass. 7. 3. So may the gift of A, the tes- tator, be to children living at the de- cease of B ; here the event of B's death might be before or after that of the testator. 2 Jarm. Wills 158. Limitation to " every other son or sons " is construed to exclude the eld- est son. Locke v. Dunlop, 39 Ch. D. 387. " To be begotten " may, if so intended, refer to futurity. lb. Ordinarily a devise to sons by name is not a gift to a class. Church V. Church, 15 R. I. 138, 23 A. 302. 4. Schaffer v. Kettell. 14 Allen 528 ; 166 Mass. 241; Mitchell v. Mitchell, 47 A. 325, 73 Conn. 303 ; Hill v. Hill, 132 N. W. 738, 90 Neb. 43; Barker v. Barker, 135 S. W. 396, 143 Ky. 66; Welch V. Blanchard, 94 N. E. 81 1^ § 530 LAW OF WILLS. [PAET VI. § 530. The Same Subject. Notwithstanding the above rule, the judicial disposition is to let in subsequent issue and near relations of a class as generously as possible where the terms of the will justify a distinction. That distinction is found when the aggregate fund to the class is not distributable at once, and the question who shall compose the class may conveniently be postponed; or, in general, where the total amount of the gift does not depend upon the number of participants admitted to share it^ Hence the English rule, confirmed by many American precedents, that the devise or bequest of a corpus or aggregate fund to children as a class, where the gift is not imme- diate, vests in all the children in existence at the testator's death, but so as to open and let in children who may come into existence afterwards at any time before the fund is distributable." And this rule of construction, like the former one, extends its favor to grandchildren, issue, brothers, nephews, and cousins.^ Thus if property, real or personal, be given by will to A for life, and after his decease to the children of B, all of B's children who are alive at the death of the testator take vested interests, which may be partially divested to let in those after-born during the life of A; and so correspondingly, when the property is tied up from dis- tribution for ten, fifteen or twenty years ; the effect of which is to 208 Mass. 523; King's Estate. 93 46 N. H. 270; Hall v. Hall, 123 Mass. K. E. 484, 200 N. Y. 189; White v. 120; 1 McCart. 167; JEToss v. Drake, Underwood, 102 N. E. 426, 215 Mass. 37 Penn. St. 375; 143 Mass. 237, 9 299; Hawkins Wills 69, 70, Swords N. E. 625; 103 N. Y. 453, 57 Am. note. Thus, the idea of a class may Rep. 760, 9 N. E. 241; 72 Md. 67, 19 be the loading one in the will, not- A. 146; Tayloe v. Mosher, 29 Md. withstanding an enumeration of the 445, 37 Miss. 65; Cooper v. Hepburn, persons who constituted the class at 15 Gratt. 558; 38 111. 206. A child the date of its execution. Springer en t^enire sa mere, and born one day V. Conglcton, 30 Ga. 977. after the gift takes effect, fulfils a 5. Devisme v. Mello, 1 Bro. C. C. description of child. Burrows Re, 537; 2 Madd. 129; Hawkins Wills. 71, (1895) 2 Ch. 49; 109 N. C. 675, 14 72, and Sword's note; 2 Jarm. Wills, S. E. 74. 156-167 and Bigelow's note; Ayton v. 6. Hawkins Wills 72; Baldwin v. Ayton, 1 Cox 327; Moore v. Dimond, Rogers, 3 D. M. & G. 649. 5 II. I. 129; Hill v. Rockingham Bank, 666 CHAP. II.] DETAILS OF TESTAMENTARY COISrSTRUCTION. § 531 make the fund distributable ultimately among the children (or grandchildren, brothers, etc., as the devise or bequest may be) who belong to the class at the period of distribution, and the representa- tives of such as may have died meanw^hile after surviving the tes- tator.^ All limitations future in enjoyment and not immediate appear to come within soope of this maxim.^ But this enlarged rule of constniction does not operate where the postponement of distribution is that merely which the law fixes for convenience in paying debts, and winding up an estate in the usual process of settlement ; ^ nor where the aggregate gift is nec- essarily increased by tlie number of participants, instead of being a fund whose total amount is to be shared among more or fewer individuals of a class ; ^ nor, to speak generally, when such a rule would not consist with a fair and just interpretation of the par- ticular will. § 531. The Same Subject. Another rule of presumption in this connection is, that where an aggregate fund is given to children as a class, and the share of each child is made payable on attaining a given age, or on marriage, the period of distribution is the time when the first child takes his share, and those bom later are excluded ; ^ and the same holds good 7. 10 Hare, 441. where the prior estate determines by 8. The rule of the text applies to bankruptcy. L. R. 16 Eq. 590. gifts in the nature of powers or in 9- Hagger v. Payne, 23 Beav. 479 execution of powers. Hawkins Wills Hence might arise a distinction be- 72; 8 Ves. 375; 2 Jarra. 57, note. It tween the case where postponement of extends also to the case where the one or two years took place under testator does not create the life es- the general rules of settlement and tate, but has only a reversionary in- distribution, and that where the tes- terest expectant upon a previous life ^ator expressly directs postponement estate, of which his will disposes. ^^r one or two years. 2 Strobh. Eq. 1. Hawkins Wills, 74; 2 Jarm. 157; 15 1- Hawkins Willis 73; Ringrose v. Ves. 122. But as to the gift of a Bramham, 2 Cox. 384. fund, part of which is reversionary, 2. Hawkins Wills 76; 2 Jarm. Wills and part is not, see Hawkins Wills ICO; Andrews v. Partington, 3 Bro. 75, and cases cited. The rule applies C. C. 403; 3 K. & J. 48; Whitbread 667 § 531 LAW OF WILLS. [pAET VI. apparently of gifts to grandchildren, or to near relatives of the other classes already considered." This is a rule which supplies but does not conflict with our former maxims ; the difference being that there we supposed all shares payable at one and the same pe- riod of distribution, Avhether postponed or immediate, while here they become payable at different times ; and the question is, who besides those living at the testator's death shall be embraced under the gift. This rule of presumption appears to apply wherever the share of each one of the class is made to depend upon some event or al- ternative personal to the individual ; as if the gift be made to A's children, the share of each to be paid on attaining twenty-one, or on death under that age leaving issue, or on marriage under that age; and the first one reaching twenty-one, or dying with issue, or marrying earlier, no after-born child will be let in.* Nor do words of mere futurity (such as " bom, or to be bom ") affect this construction ;' unless indeed the intent disclosed by the context should be plainly to the contrary ; for if the testator should direct a distribution to await the majority of the youngest child, or some event personal to the latest member of the class, the postponement of payment would keep the class open correspondingly to let in the after-born,^ since the inconvenient delay which our presumption would remove cannot in such a case be avoided. Should any one of the class attain the age in the testator's lifetime, no after-bom child can usually be let in at all.^ V. Lord St. John, 10 Ves. 152: Hub- 5. 10 Ves. 152; Iredell v. Iredell^ bard v. Lloyd, 6 Cush. 523, 53 Am. 25 Beav. 485. Dec. 55; Tucker v. Bishop, 16 N. Y. 6. Mainwaring v. Beevor, 8 Hare, 404; 2 Rawle 275, 21 Am. Dec. 445; 5 44. 3 d. M. G. 366; Armitage v. Wil- Jones Eq. 44, 208; Dawson v. Oliver- liams, 27 Beav. 346. Massey, 2 Ch. D. 753. 7 pj^^^j, ^ Matthews, 10 Ch. D. 3. Iredell v. Iredell, 25 Beav. 485. 264. As to a member of a class to See L. R. 12 Eq. 431, per Malins V. C. whom an individual legacy is given 4. Hawkins Wills 76; 6 Ves. 344; besides, see Willis v. Richardson, 98 Dawson v. Oliver-Massey, 2 Ch. D. N. E. 609, 212 Mass. 31. 753; 2 Jarm. Wills 162. The construction of the foregoing rules is not often varied, even though C68 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 532 § 532. The Same Subject. If no members of the class described as children in a will are in existence at the testator's death, after-born children will be let in ■by inference even though the devise or bequest be immediate, rather than let the gift lapse altogether ; ^ though not where this would violate the plain purpose of the will.^ As for words of futurity contained in the gift — as to the chil- dren " born and to be born," " begotten and to be begotten," " which A has or shall have " — the effect is not clearly settled. By some expression quite distinct, the testator may doubtless embrace such as happen to be bom after the period of distribution ;^ but English authorities appear disinclined to give this inconvenient effect of postponing to phrases like the foregoing ; ^ while in this country a disposition is frequently shown by the courts to let in after-bom children wherever words of futurity are used.^ At all events, wherever " children " are to be ascertained at a given period under any of the foregoing rules of construction, the class will beneficially include a child then en ventre and bom af- it should lead to remoteness. 2 Jarm. 9. lb. Wills 162. And see the English cases 1. Scott v. Lord Scarborough, 1 further compared, ib. 162-167. All Beav. 154. presumptions as to members of a class 2. Ib. ; 10 Ves. 154. The point is yield of course to the context and not perhaps quite settled. Hawkins general purpose of the will. If the Wills 71, 74. And see 2 Jarm. Wills, testator gives to children (or grand- 179-184, and cases cited. Mr. Jarman children, etc.) " now living," he means considers that, except where distri- those only who are in esse when the bution would be postponed in conse- will is made; if to those living " when quence, the words " to be born " or B dies," or upon the happening of " to be begotten," etc.. in an immed- some specified event, that event might iate gift will extend it to all the chil- happen before or after the testator's dren who shall ever come into exist- own decease, and establish the mem- ence. Ib. ; 1 Mer. 654. bers of the class accordingly; while 3. Hawkins Wills 71, and Sword's if to specified individuals of a class, note; Yeaton v. Roberts, 8 Fost. 459; those individuals and no others, con- 3 Jones Eq. 491: Butterfield v. Has- stitute the class. That " child " may kins, 33 Me. 392. The practical in- be read " children," see 56 N. J. Eq. convenience of postponing a distri- 507, 39 A. 368. bution is avoided by taking refund- 8. Harris v. Lloyd. T. & R. 310; ing bonds from the existing distrib- Hawkins Wills 71; 2 Jarm. Wills 167; utees. Hawkins 71, Sword's note. Amb. 448. ^QQ § 533 LAW OF WILLS. [PART VI. terwar Js ; * for the potential existence of such a child brings it within the just and natural sense of such a gift. Under a parent's will, more, especially, all one's own children, present-born or post- humous, may well be presumed, in American policy, as included.^ § 532a. The Same Subject; Incidents of Gift to a Class. By gift to a class by will is legally meant, in general, an aggre- gate sum. to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time designated, who are to take in some definite proportion, the share of each being dependent for its amount upon the ultimate number.^ And it is a general rule that any gift to a class where vesting is postponed includes only those who are in existence at the time the vesting is to take eSecV But on the other hand, when the vesting vests immediately the usual incidents of a vested estate apply, even though the final ascer- tainment and actual enjoyment be postponed; and consequently should a member of the class die before such period of ascertain- ment and enjoyment his share does not lapse but devolves upon his appropriate representatives.^ § 533. Words describing Object of Gift; "Children/' "Grand- children." "Words descriptive of the objects of a gift, and more particularly 4. Tower v. Butts, 1 S. & Stu. 181; unborn at the testator's death. Ras- 2 H. Bl. 399; Jenkins v. Frever, 4 quin v. Hamersley, 137 X. Y. S. 578. Paige 47; Hall v. Hancock, 15 Pick. When the testator uses particular 258; 2 Dev. & B. Eq. 308; Meigs 149; language, his intention shall govern, Swift V. Duffield, 5 S. & R. 38, Hawk- upon a due interpretation of the will, ins Wills 79; 2 Jarm. Wills 185, Bige- Emery Re, 3 Ch. D. 300; Starling v. low's note; Starling v. Price, 16 Ohio Price, supra. St. 29; Crook v. Hill, L. R. 6 H. L. 5. IMoares v. Meares, 4 Ired. L. 265 (this last referring to illogiti- 192; supra, § 480. mate children); Archer v. Jacobs, 6. Brown, Re, 154 N. Y. 313; 137 101 N. W. 195, 125 Iowa 467; Weth- N. Y. S. 578; Schmidt v. Schmidt, 84 erill's Estate, 63 A. 406, 214 Penn. A. 629, 80 N. J. Eq. 364. 150; Crapo v. Price, 76 N. E. 1043, 7. See Cavarly Estate, 119 Cal. 410, 190 Mass. 317; 54 A. 1072, 97 Me, 51 P. 629; 119 P. 496, 161 Cal, 353. 427. A contingent estate may be 8. Branton v. Buckley, 54 So. 850, limited to persons all of whom are 99 Miss. 116; Smith v. Joyner, 72 G70 CHAP. II.] DETAILS OF TESTAMENTAKY CONSTRUCTION. 533 of classes of objects, deserve our notice. And first, of " children," we may observe that the popular and legal sense of the word are ill aecord. A gift to the " children " of a person means, therefore, presumably one's immediate offspring, and does not extend to " grandchildren " ; ^ while " grandchildren," in like manner, is confined to the immediate offspring of offspring, and does not em- brace " great-grandchildren." ^ Such rules are but presumptive, however, and they yield of course to a contrary intention as gath- ered from the context; as where, for instance, such explanatory words as " legal heirs " or " who may be the sui^iving heirs of the body " are added or interchanged, so that effect is best given to the whole disposition by supposing " chil- dren " synonymous with issue of descendants in general.^ And other words of more extended meaning than " children " or " grandchildren " simply may enlarge the usual scope of such lan- guage,^ as likewise the peculiar expression of the gift: as for in- stance to " children except A " (A being a grandchild) ; * or, as S. E. 40, 136 Ga. 755; Wayman v. Follansbee, 98 N. E. 21, 253 111. 602; 98 N. E. 1051 ; Greene v. Rathbun, 34 R. I. 145 (life estate). And see Sala- man R&, (1908) 1 Ch. 4 (ventre sa mere); Villar v. Gilbey, (1907) A, C. 139; § 531. 9. RadcliflFe v. Buckley, 10 Ves, 195; CliflFord v. Koe, 5 App. Gas. 447; 3 De G. & J. 252; 1 Jarm. Wills, 147; Hawkins Wills 85; Thomson v. Lud- ington, 104 Mass. 193; 3 Wall. jr. 32; Osgood V. Lovering, 33 Me. 469; 3 Comst. 540; Low v. Harmony, 72 N. Y. 408; 2 McCart. Ch. 198; Castners Appeal, 88 Tenn. St. 478; 19 Gratt. 327; Turner v. Withers, 23 Md. 18; Pugh V. Pugh, 105 Ind. 553; Rey- nolds Re, 20 K J. 429; 66 Vt. 21, 28 A. 319, 44 Am. St. Rep. 817; 173 111. 229; Wills v. Foltz, 61 W, Va. 262, 12 L. R. A. (N. S.) 283, 56 S. E. 473; Lawrence v. Phillipps, 71 N. E. 541, 186 Mass. 320; Ruddell v. Wren, 70 N. E. 751, 208 111. 508; Lyon v. Baker, 50 S. E. 44, 122 Ga. 189 ; Stein- metz's Estate, 45 A. 663, 194 Penn. 611; Tiffany v. Emmet, 53 A. 281, 24 R. I. 411; 86 N. W. 10O4, 84 Minn. 161; 44 S. E. 605, 132 N. C. 755; Eddy V. Matthewson, 78 A. 506, 32 R. I. 53; 77 A. 924, 228 Penn. 594. 1. Orford v. Churchill, 3 V. & B. 59; Hawkins 85; 2 Jarm. 150; Hone V. Van Shaick, 3 Comst. 540; Dool- ing V. Hobbs, 5 Harring. 405. 2. Houghton v. Kendall, 7 Allen 72 ; Sorver v. Brendt, 10 Penn. St. 213; 73 Cal. 594, 15 P. 297. 3. Prowitt V. Rodman, 37 X. Y. 58 ; Hughes V. Hughes, 12 B. Mon. 115. 4. Pemberton v. Parke, 5 Binn. 606 ; 2 Duv. 334. In a few American States, the enlarged sense of " chil- dren," whether as including " grand- children," or descendants in every degree, is favored by local legislation. Hawkins Wills 85, Sword's note. 671 § 534 LAW OF WILLS. [PAET VI. some cases have held, where in another part of the will the word ''child" is distinctly applied to a grandchild, or "grandchild" to a great-grandchild." Some have claimed that a ground is laid for construing " chil- dren " of A to include grandchildren or descendants where there was no child living at the date of the will.^ But if A was then living and capable of having children afterwards, the proper sense of the word is not changed/ though it might well be if A were dead when the will was made and the testator knew that grandchil- dren but no child sui'vived him.^ In other words, a strong argu- ment arises in favor of the unusual and more extensive sense, when otherwise the testator's gift could never have had an object, and he must have known it.^ It would seem, however, more nat- ural on the whole to give to " children," if not the precise and natural meaning, a loose one, as extending to issue or descendants collectively, with a right of representation, rather than " grand- children " only. And the rule, in brief, is to take the word " chil- dren " in its lit-eral sense unless the meaning is clearly a wider one in the particular case, or on the other hand the gift means nothing at all, circumstances outside the will not being taken into consider- ation. Where the testator names the children in his bequest to them, still less should the grandchild be admitted to share, whose parent had died before the will was executed.^ § 534. The Same Subject. By " children," whether of the testator or some other person, a will is generally understood to denote all of the blood offspring, those of the whole or half blood, whether by one marriage or an- other.^ But children by affinity, such as a son's widow, are prima *' Children" is primarily a word of Wills 85; Smith Re, 35 Ch. D. 558. purchase, but it may be a word of 7. Moore v. Raisbeck, 12 Sim. 123; limitation, and include descendants. 10 Ves. 198. 2 .Jarm. 1'47, Bigelow's note. See 8. Berry v. Berry, 3 Giff. 134; 2 Gilland v. Hallett, 87 A. 303, 240 Vern. 50. Tenn. 268. 9. Fenn v. Death, 23 Bcav. 73; 3 5. Hussey v. Berkeley, 2 Ed. 194; Jarm. 148. Amb. CO.'J. 1. McMiciiael v. Pye, 75 Ga. 189. 6. 2 Jarm. Wills 147; Hawkins 2. 2 Jarm. Wills 151; Isaac v. 672 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 534 facie excluded ; ^ and so are step-children.* Nor are illegitimate children presumed to be included ; for public policy aids the con- stant interpretation of the courts that a gift to " children " means, on the face of it, to legitimate children only;^ into which class local legislation, however, may fairly bring those legitimized by the subsequent marriage of their parents.'^ Where illegitimacy re- sults from the parent's honest error in contracting a marriago which turns out void, the status of children should be tenderly treated in construction, if possible.'^ But context or surrounding circumstances may defeat, as before, whatever presumption would naturally have arisen ; so that under a gift, children may be restrained to those of some particular mar- riage, on the one hand,^ and on the other, enlarge so as to include children by affinity, or step-children, or adopted ' or even illegiti- Hughes, L. R. 9 Eq. 191; 1 J. & H. 389 ; Barrington v. Tristram, 6 Ves. 345. 3. Hussey v. Berkeley, 2 Ed. 194; 2 Jarm. 151. 4. 3 Barb. Ch. 4C6, 475; Cutter v. Doughty, 23 Wend. 513; Sydnor v. Palmer, 29 Wis. 226; 108 Mass. 382, 1 Bradf. 252; 145 Penn. St. 637, 23 A. 322. But extrinsic evidence, if not the clear provisions of the will, may show that stepchildren are included. 5. The rule of the text applies to gifts to " issue " and terms of rela- tionship generally. See Kenebel v. Scrafton, 2 East, 530; Ellis v. Hous- toun, 10 Ch. D. 236; Schoul. Dom. Rel. § 281; Wilkinson v. Adam, 1 V. & B. 422; Hawkins Wills 80; supra, § 481; Appel v. Byers, 98 Penn. St. 479; 2 Jarm. Wills 217; Kent v. Barker, 2 Gray 535; 14 N. J. Eq. 159. " The question comes round to this," says Lord Eldon, " whether upon the contents of this will it is possible to say he could mean, at the time of making that will, any but illegitimate children." Wilkinson v. Adams, 1 V, & B. 461, 468; Hawkins 80. This is an American and civil modification of the English common law, which still appears stubborn against giving a status to those whose misfortune and the sin of their par- ents caused them to be born out of wedlock. Schoul. Dom. Rel. §§ 226, 227; Miller's Appeal, 52 Penn. St. 113. 7. See Elliott v. Elliott, 117 Ind. 380, 10 Am. St. Rep. 54, 20 N. E. 264, where the testator's wife, who bore him children and lived with him until his death, was ignorant that he had abandoned a former wife abroad and left a child by her surviving him. And see Crook v. Hill, L. R. 6 Ch. 311; § 481 supra. 8. 2 Jarm. Wills, 152. 9. Whether an adopted child would be included with " children " under a will, is a novel question growing out of a policy new to Anglo-Saxon insti- 43 673 § 534 LAW OF WILLS. [part VI. mate children;^ provided the context shows a corresponding in- tention in terms or leaves the alternative of a gift which never could have had an object. Of illegitimate children, whose stigma is certainly their misfortune, not their fault, whether bom of par- ents who were guilty or innocent, we may add that courts at this day waver somewhat in applying the standard of construction; pitying, oftener than formerly, as they must, the lot of the outcast, and finding in the local policy, as they often may, some alleviation, of the ancient hardships which attached to the bastard.^ Illegiti- tutions. It is held that such children are not prima facie intended. Schafer V. Eneu, 54 Penn. St. 304. Cf. John- son's Appeal, 88 Penn. St. 346. And see Russell v. Russell, 84 Ala. 48, 3 So. 900; Smith v. Hunter, 99 N. E. 91, 86 Ohio St. 106 (adopted under statute after will was made) ; 115 Mass. 262; 64 N. H. 407, 14 A. 557 (adopted child as "issue"). But the criterion must be found in the language of the local statutes rela- tive to adoption. See Schoul. Dom. Rel. 4th ed. § 232. One might per- haps be decided a " child " under the will of the adopting parent more readily than where the gift was from some other testator. Barnhizel v. Ferrell, 47 Ind. 335. But see as to " heir of body," Sewall v. Roberts, 115 Mass. 262. And see Ingram v. Southern, L. R. 7 H. L. 408 ; Hartwell V. Teflft, 19 R. I. 644, 35 A. 882; § 481, and cases cited. 1. 2 Jarm. Wills, 217; Drummond V. Leigh, 30 Ch. D. 110; Stewart v. Stewart, 31 N. J. Eq. 398. Thus, where the gift is to the children of a person known to be dead at the date of the will. 2 Mer. 419; Gill v. Shelley, 2 R. & My. 336. Or semble to the children of a woman known to be beyond tlie age of child-bearing. But see 1 Sm. & G. 362. Or the gift is to " children," and there is but one legitimate child. Gill v. Shelley, supra. Or where the illegitimate children were identified by the gift as individuals entitled to share. 2 Hare, 282; Hawkins Wills 82, 83; P. Wms. 529; 2 Jarm. Wills, 217. See Dwight v. Gibbs, 129 N. Y. S. 961; 98 N. E. 218, 254 111. 39 (step- children as "grandchildren"); 98 N. E. 1051, 212 Mass. 232; 98 N. E. 357 (illegitimate grandchild recog- nized ) . 2. The old rule is thus expressed: " Qui ex damnnto coitu nascuntur, in- ter liberos non computentur." 3 Anst. 684; 2 Jarm. 217. But while loose and conjectural expressions af- ford no ground for admitting illegit- imate children to gifts under a will, the true point of inquiry is whether, according to a true interpretation of the will, the testator meant to make such persons the objects of his bounty. 2 Jarm. 217; Sclioul. Doui. Rel. § 281. Where the illegitimate child is sufficiently described or neces- sarily implied by the terms of the gift, such child will take. Drum- mond V. Leigh, 30 Ch. D. 110, com- menting upon earlier English cases; Wilkinson v. Adams, 1 Ves. & B. 422; 674 CHAP. II.] DETAILS OF TESTAMENTARY CONSTEUCTION. 534 mate children by modem policy, are peculiarly favored as to in- heriting from maternal relatives.* Gardner v. Heyer, 2 Paige, 11; 37 Ch. D. 695. Both in England and the United States an express gift to the unborn natural child of a woman then pregnant may take effect. Crook v. Hill, 3 Ch. D. 773; L. R. 6 H. L. 265; Knye v. Moore, 5 Harr. & J. 10; Schoul. Dom. Rel. § 281. But a gift to an illegitimate child or children not yet begotten is obnoxious to the policy of the law in this country, probably, as it is in England. Holt V. Sindrey, L. R. 7 Eq. 170; Schoul. Dom. Rel. § 281. And yet a pro- vision for future illegitimate children in esse at testator's death is upheld in the latest English cases. 35 Ch. D. 728. See Pearce Re, (1914) 1 Ch. 254. A common description of " chil- dren," however, does not, as a rule, let in tnose who are illegitimate and so reputed; for even if there were none legitimate when the will was made, the testator may be supposed to refer to the future birth of such; and pub- lic policy appears to support this construction, if possible, even though spurious offspring survive the tes- tator, and no legitimate child were born. Durrant v. Friend, 5 De G. & S. 343; Hall Re, 35 Ch. D. 551. Such is the disfavor of the law, that the mere absence of other objects does not let in a bastard. Mr. Jarman submits this test from the English cases, that in order to let in illegiti- mate children, under a gift to chil- dren, the will, as applied to the state of facts existing when it was made, must make it clear that legitimate children never could have taken, or 6' that its terms, when so applied could never have taken effect if confined to legitimate children. 2 Jarm. 234. But he admits reluctantly that this prin- ciple has not been invariably fol- lowed, lb. Sometimes the construc- tion favored as to a third person's will, is to recognize illegitimate chil- dren born before, but none born after the testator's death. Harrison Re, (1894) 1 Ch. 561. Extrinsic evidence is only admis- sible to show that illegitimate chil- dren have at the date of the instru- ment acquired the reputation of being legitimate, or that only illegitimate children fulfilled the description eitlier when the will was made or when the testator died. 2 Jarm. 217, Bigelow's note; Wilkinson v. Adam, supra; Gardner v. Heyer, 2 Paige 11. Some have laid it down that legiti- macy being a question not of reputa- tion, but of fact, a child afterwards discovered to be illegitimate, even though passing as legitimate when the will was made, cannot share in a gift to children. Hawkins Wills 80. It seems fair, however, that, if the testator was neither guilty nor de- ceived about a child reputed as his own when the will was made, but the gift stands to the reputed child or children of another person, it ought not to fail of effect merely because such child or children prove after- wards illegitimate. See Dane v. Walker, 109 Mass. 179. 3. Hayden v. Barrett, 172 Mass. 472, 70 Am. St. Rep. 295, 52 N. E. 530. § 535 LAW OF WILLS. [part VI. § 535. "Issue, "Descendants," etc., as Objects of a Gift. A gift to '' issue/' as a phrase of law, imports prima facie de- scendants of every degree from the common ancestor, including children and those more remote ; * nor does the addition of the words " begotten by A" restrict this sense necessarily.^ But where the " parent " of such issue is associated in the context, the lan- guage imports rather that children alone were intended ; " and this narrower but more popular meaning may arise from other turns of expression defining the character of a gift ; ^ though the whole tenor of the will must determine each decision.^ In rare cases con- sistency confines the construction of issue to " grandchildren," ex- tending no further in degree.^ A devise of real estate or a bequest 4. Davenport v. Hanbury, 3 Ves. 258; 19 Md. 197; Hawkins Wills 86; 2 Jarm. 101, and Bigelow's note; 2 Wms. Exrs. 1196; 17 N. J. Eq. 475: Taylor v. Taylor, 63 Penn. St. 481, 3 Am. Rep. 565; Maxwell v. Call, 2 Marsh. 119; Soper v. Brown, 136 N. Y. 244, 32 N. E. 768, 32 Am. St. Rep. 731; Pearce v. Rickard, IS R. I. 142, 26 A. 38, 49 Am. St. Rep. 755, 19 L. R. A. 472. In a limitation to " issue or children " the word " issue " enlarges its scope. Hall v. Hall, 140 Mass. 267, 2 N. E. 700. An indefinite failure of issue is favored in con- struction in 119 Penn. St. 108, 12 A. 806. 5. Evans v. Jones. 2 Coll. 516; 17 N. J. Eq. 475. 6. Sibley v. Perry, 7 Ves. 522 ; Bar- stow V. Goodwin, 2 Bradf. (N. Y.) 416; Pruen v. Osborne, 11 Sim. 132; 1 Dem. (N. Y.) 217; 74 Penn. St. 173. 15 Am. Rep. 545; King v. Savage, 121 Mass. 303 ; McPherson v. Snowdon, 19 Md. 197; 152 Penn. St. 18, 25 A. 231. The rule applies to either a devise or l)equ(!8t. 19 Beav. 417; Hawkins 88. Tlie word '■ childn^n " may be enlarged to " issue " where the two terms are interchanged in a will. 2 Jarm. 107 ; Amb. 555 ; supra, § 533 ; 5 Munf. 440. 7. Fairchild v. Bushell, 32 Beav. 158; Duncan v. Harper, 4 S. C. 76; Palmer v. Dunham, 125 N. Y. 68, 25 N. E. 1081; 173 111. 229, 50 N. E. 704. 8. Where a gift is to nephews, their " issue " to take the parent's legacy, " issue " means properly de- scendants taking by right of repre- sentation. 152 Mass. 67, 9 L. R. A. 211, 25 N. E. 96. 9. Chwatal v. Schreiner, 148 N. Y. 683. See, further, 61 A. 641, 212 Penn. 91 (heirs of the body) ; Ingles v. Mc- Cook, 68 N. J. Eq. 27, 59 A. 630 ("lawful issue"); 69 N. Y. S. 936; Birks Re, (1900) 1 Ch. 417; 94 N. E. 632, 201 N. Y. S. 124 ; Security Trust Co. V. Lovett, 79 A. 616, 78 N. J. Eq. 445 ; Rasquin v. Hamersley, 137 X. Y. S. 578 ("issue" flexible in con- struction) ; Winter v. Dibble, 95 N. E. 1093. 251 111. 200: 138 S. W. 558; 97 N. E. 758, 211 Mass. 105; Guy v. Osborne, 74 S. E, 617, 91 S. C. 291 676 CHAP. TI.] DETAILS OF TESTAMENTARY CONSTKUCTION. § 53G of personalty appears to follow the same rule in this respeot; ^ for in a will " issue " is not so rigid an expression as it would be in a deed or grant. As for '' descendants," this word cannot in a will be construed to include any but lineal heirs, without clear indications in the will of a different purpose.^ But children, grandchildren and their children to the remotest degree are thus comprehended.' " Descendants " like " issue " is a very general word, but compe- tent authorities pronounce it less flexible than " issue " in con- struction, requiring a stronger context to confine it to children.^ § 535a. Surviving Spouse as Object of a Gift. A gift to one's "' widow " is not necessarily confined in construc- tion to the wife living when the will was made.*^ § 536. Collateral Relatives as Objects of a Gift. Now as to the words which denote collateral relatives as objects of a gift. By " brothers," " sisters," and even " nephews," or " nieces," is prima facie meant not those of the whole blood alone, but half-brothers and half-sisters, or children of a half-brother or half-sister; ^ and so with the more remote kindred. For the policy (intent made clear) : 72 S. E. 501, 90 "descendant" of the testator. 1 S. C. 8. Bradf. 314. Nor collateral relatives Where there was more than one generally. For a peculiar meaning child or grandchild of A and the tes- undo- the Georgia statutes, see 25 tator knew but one of them, that one Ga. 420. See 138 S. W. 558. takes. Abbott v. Lewis, 88 A. 98, 77 3. Ambl. 397; Bouv. Diet. " De- N. H. 94. scendants " ; 2 Jarm. Wills 98-100. 1. 2 Jarm. Wills 102 ; Cook v. The word " offspring " is prima Cook, 2 Vern. 545 ; King v. Savage, facie synonymous with " issue," as a 121 Mass. 303. A devise to " male word of limitation and not of pur- issue " includes all male lineal chase. Allen v. Markle, 36 Penn. St. descendants. Wistar v. Scott, 105 117; 3 Drew. 7. See 29 Beav. 6, 18. Penn. St. 200, 51 Am. Rep. 197. 4. Ralph v. Carrick, 11 Ch. D. 873. 2. Baker . v. Baker, 8 Gray 101 ; 4a. Meeker v. Draffen, 94 N. E. Barstow v. Goodwin, 2 Bradf. (N. Y.) 626, 201 N. Y. 205 (testator marry- 413; Van Beuren v. Dash, 30 N. Y. ing again). 393. Thus, a sister's child is not a 5. Hawkins Wills 86; Grieves v. 677 § 536 LAW OF WILLS. [part VI. of our law to admit general kindred of the whole-blood and half- blood equally to the inheritance when of the same degree is deeply graven in modern legislation.^ If the intent of the will be clear enough, even illegitimate kindred of a collateral class may be deemed intended.^ N^otwithstanding the equivocal sense of nepos in Roman juris- prudence, " nephew " means in English law the son and " niece '"' the daughter of a brother or sister; and great-nephews or great- nieces are not embraced by the term.* And as a gift is naturally to blood relatives, a nephew or niece by marriage, that is the nephew or niece of the testator's husband or wife, is prima facie excluded ; * as also would be the wives or widows of blood nephews.' A similar presumption against great-grand-nephews is afforded where the gift is to " grand-nephews " simply.^ Rawley, 10 Hare 63; 2 Jarm. Wills 154: 61 How. N. Y. Pr. 48; 2 Jones Eq. 202; 1 McCord 406; 2 Yerg. 115; 70 X. J. Eq. 10, 62 A. 672. 6. See Cotton v. Scarancke, 1 Mad. 45. " Brethren," as a word of com- mon gender, has been held to embrace both brothers and sisters. 1 Rich. Eq. 78. A devise to " brothers and sis- ters " excludes a niece, the issue of a sister who was dead at the date of the will. 11 Phila. 144. But as to property to be " equally divided among my brothers and sisters and their heirs," see 137 Mass. 409, where the right of representation was extended to the issue of such a sister. See also L. R. 11 Eq. 366, note; 136 N. W. 134. 7. See Parker Re, (1897) 2 Ch. 208. This may extend in construction to relatives, quite distant tliough of ille- gitimate blood. vSeale-Hayne v. Jod- rell. (1891) A. C. 304. 8. Ambl. 514; Shelley v. Bryer, Jac. 207; Crook v. Whitley, 7 D. M. G. 490; 2 Yeates, 196; 2 Jarm. Wills, 152; 43 Ch. D. 569. 9. Hawkins Wills, 85; Smith v. Lid- iard, 3 K. & J. 252; Green's Appeal, 42 Penn. St. 30; 39 Ch. D. 614; Root's Estate, 187 Penn. St. 118; 40 A. 818. 1. Goddard v. Amory, 147 Mass. 71; 16 N. E. 725. 2. Waring v. Lee, 8 Beav. 247. See, also, White v. Old, 75 S. E. 182, 113 Va. 709, Branton v. Buckley, 54 So. 850; 99 Miss. 116 (unnamed brothers and sisters). The rule of the text admits of the usual qvialifications. Thus " nephews and nieces on both sides " may be con- strued to include those by marriage- Frogley v. Phillips, 3 De G. F. & J. 466; 101 N. Y. S. 652. And the same inference arises where the testator had no nephews or nieces of his blood, so that the gift would otherwise have meant nothing. Sherratt v. Mount- ford, L, R. 8 Ch, 928; L. R. 15 Eq, 305. So may the context of a will 678 CHAP. II.] DETAILS OF TESTAMENTARY COXSTRUCTION. § 537 The word " cousins " may literally comprehend a large number of collateral kindred; for it denotes the son or daughter of the brother or sister of one's father or mother ; so that one may have both paternal or maternal cousins of equal degree. For convenience it is presumed that a testamentary gift to " cousins " is meant to include first cousins only, if there be such,^ and the nearer degree rather than that more remote. JSTor does a gift to " first cousins," or cousins german (i. e. to the children of brothers or sisters), include first cousins once removed any more than a gift to " cous- ins " simply ; * though a gift to " all the first and second cousins " would embrace all within the degree of second cousin, and hence take in equally the fir&t cousins once removed and the first cousins twice removed.^ § 537. " Relations," " Family," etc., as the Objects of a Gift. The word " relations " or " relatives " has of itself no precise reference to legal succession, nor indeed any precise sense at all, since kindred to the remotest degree might thus be spoken of. But for convenience, and in order to prevent a gift from being void for uncertainty, it is commonly confined to those who would take under the statutes of distribution ^ (or, if a devise, under the stat- utes of descent '') unless the will discloses a plain purpose to the show tliat grand-nephews are included kin or by representation to next of in a gift to nephews. 57 Conn. 24 ; 17 kin, may be thus included. Rayner v. A. 173. Mowbray, 3 Bro. C. C. 234; 1 Bro. C. 3. Stoddart v. Nelson, 6 D. M. & G. C. 31; Drew v. Wakefield, 54 Me. 291; 68; 31 Beav. 305; Hawkins Wills, 86; Hawkins Wills, 103; Varrell v. Wen- 2 Jarm. Wills, 152. dell, 20 N. H. 431; 2 Jarm. Wills, 121, 4. Sanderson v. Bayley, 4 My. & Cr. and Bigelow's note ; 3 Mer. 437 ; 11 56. Phila. 85. And see " poor relatives " 5. Hawkins Wills, 86, 87; Mayott V. thus construed as though "poor" Mayott, 2 Bro. C. C. 125; 1 Sim. & were omitted. M'Neiledge v. Gal- Stu. 301; Charge v. Goodyer, 3 Russ. braith, 8 S. & R. 45; 2 Jarm. 126; 140. Widmore v. Woodroffe, Amb. 636. As For the method of computing de- to " blood relatives," see Cummings v. grees of kindred, see chart at end of Cummings, 146 Mass. 501, 16 N. E. Schoul. Exrs. & Admrs. (Vol. II). 401; 105 N. W. 1064, 126 Wis. 660. 6. Those entitled either as next of 7. Thwaites v. Over, 1 Taunt. 263; 679 § 537 LAW OF WILLS. [pART VI. contrary.^ A gift to one's relatives, however, does not prima facie refer to husband, wife, or marriage connections, but to those only of one's one blood ; ^ though relations of the half-blood may share.* A gift to " those related to " a person or to " near relations " may be deemed synonymous with " relations " or " relatives." ^ But the rules are adopted for convenience, where a definite class should be set apart as objects of one's bounty; and a charitable gift to relations by way of continuing a trust, is not thus limited ; nor has a power to appoint property to relatives been always thus con- fined if it carried a right of selection.* A gift to " nearest rela- tions " prefers brothers to nephews or niece.* " Family " in a will sometimes denotes the testator's children and their respective children, and even the wife of a son, as form- ing one household, and all living together.^ But this is out of deference to what the testator appeared to have intended. The term " family " is indeed a flexible one, and may, under different circumstances, mean a man's household, consisting of himself, his wife, children, and servants ; it may confine its scope to those M'Xeiledge v. Barclay, 11 S. & R. 103. degree in blood. Smith v. Campbell, The rule is more frequently applied 19 Ves. 400; Ennis v. Pentz, 3 Bradf. to bequests, as in the preceding note. 382 : 2 Jarm. Wills, 124. 8. See 3 Bradf. (N. Y.) 382; 1 Bro. 3. Harding v. Glyn, 1 Atk. 469. Cf. C. C. 32, note. On the other hand. Pope v. Whitcombe, 3 Mer. 689; 4 the context may confirm the prima Euss. 297; Varrell v. Wendell, 20 N. facie construction. 20 N. H. 431. H. 435. And see 2 Jarm. 127, 128. 9. 2 Jarm. Wills 125, 154; Kimball Tt is held that the relations take V, Story, 108 Mass. 382; 1 Bro. C. C. equally per capita, the statute being 31; Ennis v. Pentz, 3 Bradf. 382; employed only to define the objects Cleaver v. Cleaver, 39 Wis. 96: 20 and not the shares. Tifiin v. Long- Am. Rep. 30; Hibbert v. Hibbert, L. man, 15 Beav. 275. But cf. Hawkins R. 18 Eq. 504; 83 Me. 197, 13 L. R. A. Wills, 105, citing 9 H. L. C. 1. And 37, 22 A. 115. scoe 2 Jarm. Wills, 122-124. The tes- 1. Supra, § 536; 2 Jarm. 124, 152. tator may have indicated plainly 2. Whitohorne V. Harris, 2 Ves. Sen. whether the relations sliall share 527; Handley v. Wrightson, 60 Md. equally or not. 198. But a gift to " nearest " rela- 4. Locke v. Locke, 45 N. J. Eq. 97, tives seems equivalent to next of kin, 16 A. 49. excluding the right of representation, 5. Bradlee v. Andrews, 137 Mass. but perhaps admitting all of the same r,Q. 680 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 537 living in one domestic establishment, excluding those who live else- where, though of the same degree ; ® it may mean one's wife and children, or his children, excluding the wife; or, if he has no wife and children, it may mean his brothers and sisters, or his next of kin; or it may mean the genealogical stock from which he sprung; since all these applications of the word and even others are found in common parlance.^ It refers of course to two or more persons.^ The description of " family " may sometimes be so vague that the gift will fail altogether,^ and, on the other hand, be upheld like a gift to " relations." ^ A bequest to "A's family " or to the " family of A" is most readily supposed to denote A's children, if he have any, or his next of kin ; ^ and a devise would refer correspondingly to " heirs," or " heirs of tlie body " ; ^ while a gift to '' family " of personalty and realty blended may designate next of kin as to the one kind, and heir as to the other.* A devise of land to ''A and his family " would consequently seem to import an estate tail at common law ; ^ and so, too, a bequest of personalty to ^'A and his family " would operate as a gift to A for life, with remainder to A's children,^ though this awkward construction is sometimes avoided by regarding the will as intending rather a joint tenancy between A and such of his children as survive the 6. Wood V. Wood, 63 Conn. 324, 28 J. 159; 2 Jarm. Wills, 90, 91; Harper A. 520. V. Phelps, 21 Conn. 259 L. R. 6 P. C. 7. Blackwell v. Bull, 1 Keen, 181, 381. per curiam; 2 .Jarm. Wills 90. A 1. f^iipra, p. 679; 9 Ves. 319; 2 will may employ the word " family " Jarm. 95. in the sense of including an illegiti- 2. Hawk. Wills, 89; Gregory v. mate child. L. R. 6 Ch. 597; supra, Smith, 9 Hare, 708; Barnes v. Patch, § 543. And see, as to illegitimate 8 Ves. 604; Heck v. Clippenger, 5 relatives, Jodrell Re, 44 Ch. D. 590; Penn. St. 388; 3 W. Va. 610. afr. App, Cas. (1891) 304. But a 3. Hob. 29; Wright v. Atkyns, 17 child of H, born after the testator's Ves. 255; Coop. 122; 2 Jarm. Wills, death, is not included under a devise 91. to "H and family." 64 N. H. 526, 4. White v. Briggs, 15 Sim. 17. 15 A. 136. 5. 29 Beav. 657. 8. 55 Conn. 239, 11 A. 36. 6. 26 Beav. 195, 485, per Romilly, 9. See Tolson v. Tolson, 10 Gill & M. R. See same c, post. 681 § 539 LAW OF WILLS. [PAET VI. testator.^ On the whole, this word " family " is one of variable meaning, and for its true import in any case we must consider the general language of the will, read in the light of relevant circum- stances existing at its execution.^ § 537a. "Beneficiaries'' as the Objects of a Gift. " Beneficiaries " are defined as those receiving or entitled to re- ceive a benefit under the will.^ § 538. Taking per Capita or per Stirpes. That distinction so familiar in the distribution of the estates of decedents, namely, between per capita and per stirpes, comes now into view. Where all the persons entitled to share stand in the same degree of kin to the decedent, as, for instance, all grandchil- dren, and claim directly from him in their own right, and not through some intermediate relation, they take per capita, that is, in equal shares, or share and share alike. But where they are of different degrees of kindred, as in the case of grandchildren and great-grandchildren, the latter representing some deceased grand- child like A, they take per stirpes, or according to the stock they represent ; and hence the great-grandchildren of A may take the dead parent's share, while other great-grandchildren are excluded because their parent B, C, or D is living. When persons take as individuals they are said to take per capita; when by right of rep- resentation, per stirpes} If this distinction is embodied in the local statutes which dis- 7. Parkinson's Trusts, 1 Sim. N. S. 129 N. Y. S. 814 (family separated). 242. And see Corlass Re, 1 Ch. D. 9. Jones's Estate, 134 N. Y. S. 859. 460. Where the particular beneficiary is 8. Corsgrove v. Corsgrove. 69 Conn. made clear, no other will be taken for 416, 38 A. 219; 63 Conn. 324, 28 A. carrying out better the testator's pur- 520. pose. Mason v. General Hospital, 93 See further, 65 A. 761, 102 Me. 63; N. E. 637, 207 Mass. 419. TiflFany v, Emmet, 53 A. 281, 24 R. I. 1. 2 Black. Com. 218; 3 Ves. 257; 411 ("kindred"); Henderson v. Hen- Bouv. Diet.; 2 Jarm. Wills, 101, 106, derson, 77 A. 348, 77 N. J. Eq. 317 112; Guild v. Allen, 67 A. 855, 21 R. ("relations"); Farnam v. Farnam, I. 430. 77 A. 70, 83 Conn. 369 ("family") ; 682 CHAP. II.] DETAILS OF TESTAMENTARY CONSTEUOTIOlSr. § 538 tribute an intestate estate, a testator may expressly contemplate it in his will or the law presumes it for him in his silence. One may thus exclude the legal inference of representation by naming the grandchild of a deceased child with children or specified indi- viduals as all to take " share and share alike," or by some similar expression ; or he may on the other hand give representation its natural force silently or by saying that such grandchild shall " take his parent's share," " take by right of representation," and the like.^ The statute policy of the jurisdiction must determine how far the rule per stirpes should be carried, when the assent of the testator is to be inferred from the language or the silence of his will. But aided by this policy our courts raise certain presump- tions. Thus under a gift to " descendants " (taking the usual broad scope of this word '') equally, though children and grandchildren or great-grandchildren be embraced, some with a living parent, and others with none, the issue of every degree are entitled to an equal share, simply because the will has so directed.* x\nd the same holds true of a gift to one's " issue " in the broad, sense of this word as synonymous with descendants, or nearly so.^ On the other hand, if the gift is directed to be in the statutory propor- tions,^ or if it expresses the idea of a distribution per stirpes among specified persons, or some one's " descendants," or " issue," as when it directs expressly that any child of a deceased member of the class shall take his parent's share by right of representation,'^ the will should operate accordingly. As to real estate, corresponding max- 2. Public policy of the statutes of 4. Butler v. Stratton, 3 Bro. C. C. descent and distributions, aided, it 367; 2 Jarm. 100; 2 Jur. N. S. 443. may be, by a testator's own expres- 5. Sup7-a, § 535 ; Davenport v. Han- sion, may thus justify the right of bury, 3 Ves. 257; 2 Jarm. Wills, 101; representation as to the share which Pearce v. Rickard, 18 R. I. 142 ; 49 the parent who predeceases the tes- Am. St. Rep. ^55^ 19 L. R. A. 472, 26 tator would have taken if surviving A. 38. him. 6. Smith v. Pepper, 27 Beav. 86. 3. Supra, § 535. 7. Robinson v. Shepherd, 32 Beav. 665; 10 Jur. N. S. 53; 2 Jarm. 100. 683 § 539 LAW OF WILLS. [PAET VI. ims would seem logically to apply; but we must remember that the statute policy of descent coincides not wholly with that of dis- tribution, and the old will which favors the heir may still hamper the local construction.^ The due interpretation of a will requires sometimes that personalty should be divided per capita, and the realty per stirpes.^ In general, legatees will take per capita rather than per stirpes, or vice versa, where it is clearly apparent what the testator in- tended.^ § 539. The Same Subject. Personal representatives, or the next of kin, under the Statute of Distributions, take naturally per capita by the policy of English law ; hence an express provision that the " personal representa- tives " of a child or children, shall take per stirpes and not per capita has been taken to indicate that the testator used "' personal representatives " in the sense of '' descendants." ^ " Heirs," on the other hand, or '^ bodily heirs," " heirs and assigns," and such like expressions, signify prima facie that the gift was to take effect per stirpes} But all such construction gives way if another intent be de- te\)0 Mere expression of kindness and good will towards these third parties, or an appeal to the donee's liberality on their behalf, is not enough to create a precatory trust for their benefit and make the dubious words alluded to operate to qualify the legatee's in- terest/ Nor do expressions which per se might amount to a trust have that effect, when so accompanied by other words that the will declares or implies on the whole a contrary intent. Doubtful cases may be explained by the context ; a clear devise or legacy is not to be cut down by repugnant expressions in the will ; ^ and where the words of the gift point plainly to a full, absolute and unfettered enjoyment by the donee himself, mere precatory ex- pressions annexed to the gift can hardly be pronounced imperative.^ And where the testator obviously intends a gift subject to the bene- ficiary's discretion on certain points, that discretion must be re- spected.'^ The indefinite nature and quantum of the subject, and the in- 4. Bond Re, 4 Ch. D. 238; 1 Jarm. 388; 11 CI. & F. 513; Sale v. Thorn- berry, 86 Ky. 266, 5 S. W. 468. 5. See § 478. 6. 1 Jarm. Wills, 388; Knight v. Boughton, 11 CI. & F. 513; 14 Sim. 379; Meredith v. Heneage, 10 Price, 306. Some cases seem reluctant to uphold a widow's absolute discretion and control of the property as against the testator's own children. See 16 Jur. 492, cited 1 Jarm. 390. But other precedents treat her with the usual favor where doubtful precatory words accompany an absolute gift in her favor. Hutchinson Re, 8 Ch. D. 540. So far as the children con- cerned are all her own, and none of them step-children, we may well ac- cede to the latter view. Where a devise or bequest is un- limited and accompanied by an ab- solute power of disposition, a mere desire or request that all which re- mains undisposed of at tlie legatee's death shall go to certain persons can- not control the gift. 113 Ind. 18, 14 N. E. 571; Bills v. Bills, 80 Iowa, 269, 20 Am. St. Rep. 418, 8 L. R. A. 696, 45 N. W. 478. See also §§ 478, 600, as to repugnant conditions an- nexed to a gift; Whitcomb's Estate, 85 Cal. 265, 24 P. 1028. Where all the testator's property was devised and bequeathed to his wife, coupled with a " wish " that she should pay collateral kindred an- nually so much " if she find it al- ways convenient," this is a trust de- pendent upon the widow's " conven- ience " and not upon her volition. Phillips V. Phillips, 112 N. Y. 197, 8 Am. St. Rep. 137, 19 N. E. 411. See Enders v. Tasco, 89 Ky. 17, 11 S. W. 818; Clark v. Hill, 98 Tenn. 300, 39 S. W. 339. 7. Lawrence v. Cooke, 104 N. Y. 632, 11 N. E. 144. 783 § 595 I.AW OF WILLS. [tart vl definite nature of the objects, are always used by the court as evi- dence that the mind of the testator was not to create a trust.^ There is a wide difference between a power under the will which the donee is free to exercise, and a trust, which equity will enforce regardless of his wishes. And while American courts have declined to fol- low the English precedents where there is danger that literal con- struction will force a trust out of loose words where none was in- tended, the English chancery judges seem of late disposed in many instances to retrace their steps, as though conscious that the doc- trine of precatory trusts had been pressed too far by some of their predecessors, and loose recommendations invested with a peremp- tory meaning which robbed the gift of its just efficacy.^ But a trust may still be created out of precatory expressions, and en- forced, if the trust itself is not illegal, where the supposed objects of the testator's bounty are certain and definite, the property clearly pointed out, and the natural relations of the testator to the beneficiaries such as to raise a strong motive for making a trust instead of confiding implicitly in the donee's discretion ; and where, most of all, the strength of the language used by the testator be- sides warrants the inference that a decided, though soft, imperative was intended.''^ Words precatory in form may be found by the con- 8. Lord Eldon in Morice v. Durham, Bigelow, C. J., in Warner v. Bates, 10 Ves. 536. 98 Mass. 274, and cases cited; Colton 9. 1 Jarm. Wills, 391; James, L. v. Colton, 127 U. S. 300, 32 L. Ed. J., in Lambe v. Eames, L. R. 6 Ch. 138; Seymour v. Sanford, 86 A. 7, 599. Some of the earlier chancery 86 Conn. 516. decisions of Sir John Leach and (1) As to uncertainty of amount. others put a careful construction upon A gift to A, with precatory words as precatory expressions. lb. ; 5 Mad. to disposing " what shall be left " at 434; 1 Russ. 509; 2 My. & K. 197; his death, or "the bulk" of the prop- (1897) 2 Ch. 12; Hamilton Re, erty, or what "he may save" out of (1895) 2 Ch. 370. The fact tliat the income, serve as examples. Hawkins party in whose favor the apparent Wills, 164, citing 1 Bro. C. C. 179; 2 trust was created deserved the bene- My. & K. 197; 10 Hare, 234. And fit may be considered. 113 Mo. 112, see 1 Jarm. 396. But whatever difii- 35 Am. St. Rep. 699, 20 S. W. 786. culties might have been supposed to 1. Cases supra; 2 Story Eq. -Jur. stand in the way of enforcing a trust, §§ 1069, 1070; 1 Jarm. Wills, 391; the extent of which was hopelessly 784 CKAP. IV.] MISCELLANEOUS ntO VISIONS CONSIDERED. § 595 text mandatory in effect. And we apprehend, furthermore, that precatory words may in some cases establish a trust so far that the donee must fairly exercise an honest discretion pursuant to the terms of the will, or else a court of equity is likely to control him.^ The words " wish," " desire," " will," and the like, expressed where the testator bestows without reference to acts of one or an- other beneficiary may be presumed to have an imperative sense.^ unascertained, a court of equity can measure the extent of interest which adult or infant shall take under a trust for his support, maintenance, advancement, provision, etc., out of a fund larger, confessedly, than such adult or infant can claim, and some interest in which is given to another jjerson. Wigram, V. C, in Thorp v. Owen, 2 Hare, 610; Hawkins Wills. 165; 98 Mass. 274; 2 My. & K. 138. There may be a gift to A, a widow, for the benefit or support of herself and her children, so as to create a trust. 35 Me. 445 ; Loring v. Loring, 100 Mass. 340; Woods v. Woods, 1 My. & Cr. 401. (2) As to uncertainty of objects. A gift to A, " hoping he will con- tinue them in the family," was held too uncertain to create a trust. Har- land v. Trigg, 1 Bro. C. C. 142. But cf. Coop. 111. So, too, with a gift coupled with a request to " take care of B and his family," etc. 10 Gill. & J. 159; 21 Conn. 259. But vagueness of object, though unquestionably a ground for holding that no trust was intended, may yet be countervailed by other considerations to the con- trary, if only it clearly appears that a trust was intended. As when the gift is to A, " well knowing that she will dispose of the same in accord- ance with my views and wishes." 3 Mac. & G. 546. For, though circum- stances may make it impossible to ascertain what are these views and wishes, the inference is that the tes- tator had a definite gift for the bene- fit of others in his own mind. On the whole the question seems to be whether as to the quantum given or the objects of the supposed trust, the testator intended that something definite or capable of ascertainment should go positively as indicated, or that he purposely left the amount or object indefinite with the idea of making suggestions to the donee for his own guidance and convenience rather than controlling him, and meaning that the donee shall him- self select amount or object at his own discretion. Thus, where the testator requests the donees to " distribute the fund as they think v.'ill be most agreeable to his wishes," no impera- tive trust is created. See Stead v. Mellor, 5 Ch. D. 225. Nor is a wife's direction in a will binding that her Iiusband shall make certain gifts and mementos to such persons as she had verbally named and requested of him. 125 N. Y. 427, 26 N. E. 467. 2. See next section, where this prin- ciple of construction is applied ; 1 Jarm. Wills, 399; Raikes v. Ward, 1 Hare, 445; 1 De G. & J. 351; 63 Conn. 58 ; Black v. Herring, 79 Md. 146. 3. See § 263 and cases cited. The issue of precatory or imperative may 50 785 § 596 LAW OF WILLS. [PAKT VL On the wtole, the test comes by taking precatory words and phrases in a just connection with the rest of the will and gather- ing the testator's probable intention from the whole instrument.* § 596. Uncertainty in creating a Trust; Gift for Specified Pur- pose. The question whether a trust is sufficiently created may also arise where the testamentary gift is made for some specified pur- pose and without precatory words. Where the declared purpose of the gift is for the benefit of the donee and no one else, it is usually held that the gift is absolute notwithstanding, and that the donee may claim it without applying or binding himself to apply the money according to such a purpose; as if, for example, the legacy is specified to be given him to purchase a mill, a life-an- nuity, a dwelling-house, to maintain and educate him, set him up in business, and the like.^ It follows that though the legatee thus named die before the stated purpose of the gift can be executed, having survived the testator, his legal representative shall take the gift ; for the gift has vested in point of interest, and no condition relate to some incident connected with 365; 83 A. 379. 80 N. J. Eq. 101; 97 the gift. See Ogden Re, 55 A. 933, N. E. 701, 253 111. 407. Cf. (not im- 25 R. I. 378 (location of a monu- pevative) (1904) 1 Ch. 549; 60 A. ment). And see Dunn v. Morse, 83 694, 78 Conn. 4; Angus v. Noble, 46 A. 795, 109 Me. 254. A. 278, 73 Conn. 56; 106 S. W. 226, 4. Clay V. Wood, 153 N. Y. 134, 47 32 Ky. Law. 408; 58 A. 24; Rector N. E. 274; Colton v. Colton, 127 U. v. Alcorn, 41 So. 370, 81 Miss. 788; S. 300, 32 L. Ed. 138; 49 N. J. Eq. Hillsdale College v. Wood, 108 N. W. 570, 25 A. 510; 172 Mass. 101, 51 6^5, 145 Mich. 257; Williams v. Bap- N. E. 449 and cases cited. See Put- ^is* Church, 48 A. 930, 92 Md. 497; nam v. Safe Deposit Co., 83 N. E. 54 L. R. A. 427, 43 So. 68 ; Mitchell's 789, 191 N. Y. 166; Wolbert v. Beard, Estate, 117 P. 774, 160 Cal. 618; Mc- 107 N. W. 663, 128 Wis. 391; 64 N. E. Allister v. Hayes. 79 A. 726, 76 N. H. 692, 182 Mass. 72; McCurdy v. Mc- 1081; Fitzsimmons v. Harmon, 81 A. Galium, 72 N. E. 75, 186 Mass. 462 667, 108 Me. 456 (too indefinite), ("request"); Stinson's Estate, 81 5. I Jarm. Wills, 397, and cases A. 207, 232 Penn. 218 ("would cited; Apreece v. Apreece, 1 V. «fe B. like ") ; 79 A. 587, 114 Md. 289 (" will 364; Knox v. Hotham, 15 Sim. 82; 16 and wish"); 74 S, E. 204, 113 Va. lb. 45; 9 lb. 472; 28 Beav. 620. 78G CHAP. IV.] MTSCE"LLANEOUS PROVISIONS CONSIDERED. § 59G precedent was annexed to it." American cases hold, moreover, that a gift to enable a legatee to confer a bounty on others is not a trust, but a beneficial legacy to him ; ^ and this accords with the doctrine of our preceding section. The principle which underlies these cases is that equity will not compel that to be done which the legatee might undo the next mo- ment by selling the thing to be purchased,^ or rather that the gift vests absolutely in the donee, where a purpose is stated but not a positive condition of receiving. Yet here, as usual, the true scope of the gift and the testator's intention must be studied in the context. If trustees are to hold the property for this donee and appropriate the income for the purpose stated, with a gift over in case he should alienate or become bankrupt, his right to receive the fund is intercepted; * for the absolute enjoyment of the fund or jus disponendi is here withheld from the beneficiary ; and where again the amount to be applied for his benefit is left to the discre- tion of trustees, his gift becomes correspondingly limited.^ A stronger motive for inferring a trust arises when the speci- fied purpose or motive of the gift is the benefit of another person or persons and not of the primary donee alone. Here the prin- ciples already announced in considering precatory trusts must be applied, and the particular will subjected to its own natural inter- pretation. ]S[o positive rule can be laid down for all cases, but one of these three constructions may be gathered from the par- ticular context and circumstances: (1) that an imperative trust was intended; (2) or that the primary donee may freely exercise his own discretion as to the quantum of benefit to the other person 6. Attwood V. Alford, L. R. 2 Eq. 11 S. C. 375; 148 Mich. 140, 11 L. E. 479; 2 P. Wms. 308; Barnes v. Row- A. (N. S.) 509, 111 N. W. 757. ley, 3 Ves. 305. This holds true 8. 1 Jarm. 398. A simple direction semhle, although the gift is not im- in the will that the property be con- mediate, but subject to some prior verted does not exclude the principle life interest. Day v. Day, 17 Jur. of the text. lb. 586, cited in 1 Jarm. 397. Contra, 9. Hatton v. May, 3 Ch. D. 148. L. R. 8 Eq. 262. 1. See L. R. 7 Ch. 727; 3 K. & J. 7. 1 Jarm. 397; 11 Rich. Eq. 238; 497; 1 Jarm. 397, 398. 787 § 597 LAW OF WILLS. [pAKT VI. or persons, provided his discretion be honestly exercised; (3) or that the expression of motive or purpose, being wholly nugatory, the primaiT donee's gift remains unabridged.^ § 597. The Same Subject: General Conclusion. Upon the whole, although courts appear less disposed than for- merly to conjure up a trust from doubtful and uncertain expres- sions of intent, and to recognize at length the testator's own purpose not to encumber his gift with obligations, but rather to express his own good will towards others while confiding their interests to his donee's sense of honor and fairness ; and although an expressed purpose should not be presumed to annex to the gift any condition, yet the introduction of all such doubtful expressions into a will should be avoided, if possible, for it almost infallibly sets third parties seeking for something more than any legatee's free discre- tion is likely to bestow upon them, and more too, as a matter of right perhaps, than the testator himself had ever dreamed they should receive;^ and out of the ill-feeling and disappointment comes litigation. 2. In I Jarm. Wills, 399-404, the 597. See, further. Glover v. Baker, English precedents which arise under 83 A. 916, 76 N. H. 393; 35 Me. 445; these three rules of construction are 44 S. E. 174, 53 W. Va. 165; Loring stated at length. On the whole, Mr. v. Loring, 100 Mass. 340; 43 S. E. Jarman considers that the preponder- 643, 132 N. C. 227; Crane's Will, 54 ance leans in favor of giving the pri- N. E. 1089, 159 N. Y. 557; 79 N. E. mary donee a discretion which he 1105, 187 N. Y. 524; 83 A. 795, 109 must honestly exercise, or in default Me. 254. subject himself to the control of the 3. Caution in the employment of court; but with a tendency to narrow words which might give rise to a rather than extend the effect formerly question of this sort is enforced by ascribed to words expressive of the Mr. Jarman. " If a trust is intended purpose or motive of the gift. To to be created, this should be done in these cases, which turn upon minute clear and explicit terms; and if not, differences of expression and circum- any request or exhortation which the stances, no extended reference is testator may choose to introduce necessary. Among them are Jubber v. should be accompanied by a declar- .Jubber, 9 Sim. 503; Hamley v. Gil- ation that no trust or legal obliga- bert, Jac. 354: 10 Sim. 371; 1 Hare, tion is intended to be imposed." 1 445; Lambe v. Eamcs, L. R. 6 Ch. .Jarm. Wills, 405. 788 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 598 N'o technical words are of course requisite for creating a trust if only the intention to do so be apparent in the instrument. Any donee or recipient of property may be adjudged a trustee thereof because of the obligations under which he takes it. And the effect, where the intention to create the trust is sufficiently clear but not the purpose or object of that trust, is to cast upon the devisees or legatees in trust (if they are pointed out distinctly) the legal in- terest in the gift, not however for their own benefit nor for the too uncertain objects, but for the person or persons in whom the law vests the property where one has died intestate.* Notwithstanding that the trust itself may fail by lapse or bo condemned as illegal, a devise or bequest to a person merely by way of trust is not to be construed into an absolute gift.^ § 598. Testamentary Gifts upon Condition Precedent or Sub- sequent. A testamentary gift may be upon some condition precedent or subsequent; and to create such condition no particular form of words need be used, for if a corresponding purpose be read in the will, that purpose takes effect. No doubt it is desirable to employ such customary expressions more or less positive as " on condi- tion that," " provided," ® " if," and the like ; nevertheless, a mere devise or bequest to A, " he paying," or " he to pay $500 to C," may amoimt to a condition if the context justifies that sense.^ Any qualification, restriction, or limitation, annexed to a gift, and modi- fying or destroying essentially its full enjoyment and disposal, 4. "In other words, the gift takes N. Y. 197; Otjen v. Frobach, 134 N, effect with respect to the legal inter- W. 833, 148 Wis. 301. est, but fails as to the beneficial own- 6. Co. Lit. 236 b; 2 Jarm. Wills, ership." 1 Jarm. 383. 1, 2. 5. McHugh V. McCole, 97 Wis. 166, 7. The word " proviso " in modern 65 Am. St. Rep. 106, 40 L. R. A. 724, times favors the idea of a fee upon 72 N. W. 631. See Ryder v. Lyon, 82 trust rather than a strict devise upon A. 573, 85 Conn. 245; Woodbury v. condition. Stanley v. Colt, 5 Wall. Hayden, 97 N. E. 776, 211 Mass. 202; 119. Seitz V. Faversham, 93 N. E. 385, 205 789 § 598 LAW OF WILLS. [PART VI. may be deemed a condition. But words of mere description or in- ducement for making the gift do not constitute a condition.^ Prac- tical difficulty, however, is often found in adjudging whether words or expressions annexed to a particular gift bound the donee to fulfil the description or were incidentally used by way of identifying him or expressing the testator's motives ; whether or not a qualifi- cation, restriction, or limitation upon the gift was the true intent of the instrument. This question must, wherever it arises, depend upon the fair intendment of the particular will, aided, if need be, by extrinsic and explanatory proof. Conditions in wills, as in other instruments, may be precedent or subsequent ; in the one case, the estate or interest does not vest until the condition is fulfilled ; in the other, it is liable to be di- vested if the condition afterwards fails. The distinction is an obvious one in its consequences;^ but the obscure and ambiguous language of the will renders it in many cases very perplexing to tell whether the testator meant the one sort of condition or the other; if, indeed, he clearly apprehended the distinction at all. !No criterion is afforded by the choice of technical expressions, but the probable intention of the testator must determine the construc- tion in every case of this kind.^ A condition in a will may be valid, notwithstanding there is no gift over expressed, in case of failure to perform the condition, though that circumstance is of 8. Denby Be, 3 De G. F. & .J. 350; cannot relieve from the consequences Porter Re, L. R. 2 P. & D. 22 ; Skip- of a condition precedent unperformed, with V. Cabell, 19 Gratt. 758. And But one who has himself prevented see supra, §§ 285-290, as to condi- performance cannot take advantage of tional or contingent wills. In Ditchey the non-performance. 4 Jones L. 249. v. Lee, 78 N. E. 972, 167 Ind. 267, 1. 4 Kent Com. 124; Finlay v. " condition " was held to mean " con- King, 3 Pet. 346. Bidcration " merely. As to a condition annexed to a joint 9. See 4 Kent Com. 125, as to tliese gift, where one of the beneficiaries consequences. Precedent conditions broke the condition without concur- must be literally performed ; and even rence of the other, see Rockwell v. a court of chancery will never vest an Swift, 59 Conn. 289; Hayes v. Davia, i-.state wiien by reason of a condition 105 N. C. 482. precedent it will not vest iu law. It 790 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 599 consequence, as we shall see. And where a devisee or legatee holds beneficially on a condition continuing for his life or a certain term of years, the estate bocomes absolute on his death or the ex- piration of the terai prescribed; such condition not having mean- while been violated.^ § 599. The Same Subject. Instances of conditions precedent in a will occur not unfre- quently in the reports. As where property is devised or bequeathed to A if he lives to the age of twenty-five ; ^ or if he marries B * or into B's family,^ or nuarries v^ith C's approbation (if C be living),® otherwise over; or upon condition that A shall release all other right or claim out of the testator's estate ; ^ or if A be unmarried at a time implied or specified in the will ; ^ or after C ceases to be a widow, providing A shall live on the place and carry it on until that time ; ^ or provided the legatee lives on the place and takes care of testator and his widow as long as they live.^ A be- quest to a college on condition that its mame is changed before the testator's decease fails unless strictly complied with, and legisla- tion to change the name comes too late if not procured during the testator's lifetime.^ Conditions subsequent are likewise illustrated in the books. As where A is excluded from the benefits of a will which devises in trust for him and his heirs unless his father shall settleupon him (as e. g., by his own devise) a specified estate.^ So, too, when an 2. Hayes v. Harrison, 99 N. E. 9. Marston v. Marston, 47 Me. 495. 1108, 206 N. Y. 661 (devise in fee 1. Minot v. Preseott, 14 Mass. 495. simple, etc. ) . See § 600. See also 2 Jarm. Wills, 4, Bi^elow's 3. 8 Vin. Ab. 104, pi. 2. note; 20 N. J. Eq. 43, 218; Caw v. 4. Davis V. Angel, 31 Beav. 223; 4 Robertson, 1 Seld. 135; 10 Watts, De G. F. & J. 524. 179; Nevens v. Gourley, 97 111. 365. 5. 15 Ves. 248; Randall v. Payne, 2. Merrill v. Wisconsin Female Col- 1 Bro. C. C. 55. lege, 74 Wis. 415, 43 N. W. 104; 41 6. 5 Vin. Ab. 343, pi. 41; 2 Jarm. S. E. 510, 63 S. C. 474; 60 N^. E. 110, Wills, 2, 3. 190 111. 200; 57 S. W. 110, 155 Mo. 7. Willes, 153; Gillett v. Wray, 1 413 (waiver of condition) . P. W. 284. 3. Popham v. Bampfield, 1 Vem. 8. Ellis V. Ellis, 1 Sell. & L. 1. 78. And see Cro. Eliz. 795. 791 § 599 LAW OF WILLS. [pART VL interest is given to A, coupled with a direction tliat on some pre- scribed event, such as A's maiTiage, without B's consent, it shall be forfeited, or so that it shall last as long as his conduct is dis- creet and approved by B and no longer.^ So where a house is de- vised upon condition that the devisee shall keep the house in good repair, otherwise over.^ And in various gifts which are made con- ditional upon the maintenance or education of others specified by the will.^ An estate is presumed to vest on the testator's death, rather than at a later date. Hence, if no intention to defer the period of vest- ing definitely appears, while a definite date for performing the condition after the testator's death appears, or if there appears a vesting as usual, though upon probation, a condition subsequent rather than precedent may be inferred. But the preferable infer- ence is that of a condition precedent where the vesting appears de- ferred to some definite date after the will comes into operation, es- pecially if, by some prompt or decisive act, the condition may bo performed or its alternative solved. Some cases reach also a readier conclusion that the condition is precedent and not subsequent, where it affects a pecuniary legacy or something to be raised out of the bulk of the estate and no more, than where its operation must be to suspend the vesting of an entire residue or the main inheritance under the will. The condition subsequent better fits the adaptation of the will to peculiar and unforeseen exigencies which may arise after it has passed out of its maker's control ; for a court of equity may, and frequently does, relieve the donee from embarrassing conditions which turn out harsh, impossible, and un- conscionable; but to vest an interest in any one clear of its condi- tion precedent, no matter how unjust or incapable of performance 4. 2 Jarm Wills, 6, 7; 2 P. Wms. Hall, 24 Wend. 146; Lindsey v, Lind- 626; 2 8alk. 570: Lloyd v. Branton, sey, 45 Ind. 552; 41 Mich. 409, 1 3 Mcr. 108; Wynne v. Wynne, 2 M. N. W. 1048; 3 Woods C. C. 443; & Gr. 8. Morse v. Hayden, 82 Me. 227, 19 A. 5. Tilden v. Tilden, 13 Gray, 103, 443; 79 Wis. 557, 48 N. W. 661; 113. 6. Smitli V. Jowett, 40 N. H. 530. F. 609; 64 Neb. 563, 90 N. W. 560. And sec 10 Pick. 306; Hogcboom v. 792 CKAP. IV.] MISCELLAXEOUS PROVISIONS CONSIDERED. § 590 that condition may prove, is beyond the scope of its autliorityJ The acceptance of a gift compels one to comply with the condi- tion annexed to it; and the parties injured by his non-complianco are not without redress in law or equity.^ But while the devisee or legatee may be forced to comply with his condition, and those clearly entitled to tlie property upon a breach may even bring their writ of entry or other appropriate suit at law, equity is always indisposed to declare a forfeiture, and refuses its aid to divest a title under the will for breach of condition subsequent, affording relief rather against forfeiture whenever compensation in damages can be made in full of the injury.^ Conditions subsequent are construed beneficially in order to save, if possible, the vested estate or interest; and if such condition prove illegal or incapable of performance, whether as against good morals, or as impossible under any circumstances, or as rendered impossible in the particular case and under the existing circum- stances, the gift, whether of real or personal property, relieved of the condition, becomes absolute in effect.^ On the other hand, a 7. 2 Jarm. Wills, 9; Co. Lit. 206 b; gift on condition subsequent. Morse Boyce v. Boyce, 16 Sim. 476 ; Marston v. Hayden, 82 Me. 227, 19 A. 443. V. Marston, 47 Me. 495; 4 Kent Com. And see 50 S. E. 218, 137 N. C. 572; 124, 125. See e. g., Davis v. Angel, 104 N. W. 299, 95 Minn. 340; Croxon 4 De G. F. & J. 524, where the con- Re, (1904) 1 Ch. 252; Kuhn's Estate, dition precedent was that the donee 52 A. 126, 203 Penn. 17; 60 N. E. should marry B. and it was shown 500, 190 111. 283; 27 So. 705, 52 La. that with the testator's own consent Ann. 1122; 98 F. 495 (death of bene- he had already married C. The right ficiary) ; 96 Va. 81, 70 Am. St. Rep. to the gift does not accrue as it would 825,. 30 S. E. 462; 139 N. W. 160. appear, where the condition is pre- 8. Tilden v. Tilden, 13 Gray, 103. cedent, even though act of God made 9. Smith v. Jewett, 40 N. H. 530; the performance impossible. 29 Vt. 4 Kent. Com. 147; 2 Story Eq. Jur. 273; 13 B. Mon. 163, 56 Am. Dec. §§ 1315, 1319; Cunningham v. Parker, 557; Roundel v. Currer, 2 Bro. C. C. 146 N. Y. 29, 48 Am. St. Rep. 765, 67; 100 Wis. 633, 76 N. W. 600. But 40 N. E. 535. a gift to A, on condition that he shall 1. Shep. Touch. 132, 133; 2 Jarm. maintain the testator's son during the Wills, 10-13 ; Collett v. Collett, 35 latter's minority, vests an absolute Beav. 312; Hervey-Bathurst v. Stan- title in A if the son dies before the ley, 4 Ch. D. 272; Conrad v. Long, 33 testator; because this is deemed a Mich. 78; 75 111. 315; 4 Kent Com. 793 § 600 LAW or WILLS. [part VI. condition precedent, impossible either in its creation or under the existing circumstances, or illegal, carries down in its defeat the gift whose vesting depended upon it, though the donee himself be blameless;^ and strict construction here avails little if it canno't pronounce that the will in reality imposed no distinct condition precedent at all. In short, the standpoint both of donee and court is far more favorable for doing as substantial justice may require where the condition grows out of acceptance instead of obstruct- ing it. Where a contingency is clearly indicated by way of a condition to divest or prevent from vesting, courts will not accept another contingency as the equivalent of that contingency, by way of sub- stitution.^ § 600. The Same Subject. As to the time required for performing or fulfilling a condition precedent or subsequent, this should be that period which the will prescribes, if the testator clearly expresses or indicates his wishes ; otherwise, a just and reasonable time, as the nature of the case 130: Parker v. Parker, 123 Mass. 584; possible from its creation, or his own Sliepard v. Shepard, 57 Conn. 24, 17 act and default lias made it such, A. 173; Greenwood Re, (1903) 1 Ch. unless performance of the condition 749 (impossible of performance). See made evidently the sole motive of the 71 N. E. 80, 185 Mass. 560, 102 Am. bequest. 2 De G. & S. 49 ; 2 Jarm. St. Rep. 363; Pitts v. Campbell. 55 Wills, 12, 13. See repugnant condi- So. 500, 173 Ala. 604. tions, next section; Moore Re, 39 Ch. 2. Shep. Touch. 132, 133; 3 Bro. C. D. 116. And see further, Conant v. C. 67; 2 Jarm. Wills, 9-13; Boyce v. Stone, 143 N. W. 39, 176 Mich. 654 Boyce, 16 Sim. 476; 97 N. C. 295, 2 (condition precedent possibly il- S. E. 450; Gunning's Estate, 83 A. 60, legal) ; Jacobs v. Ditz, 202 N. E. 1077, 234 Penn. 139; Perry v. Brown, 83 A. 260 111. 98; Frost v. Blackwell, 88 A. 8, 34 R. I. 203. The civil law as 176, 82 N. J. Eq. 184 (substantial adopted by courts of equity appears performance acceptable where strict to slightly alleviate this hardship, performance is impossible) ; Conant where personalty is bequeathed, by v. Stone, 143 N. W. 39, 176 Mich. 654. treating the gift as an absolute one 3. McFarland v. McFarland, 177 111. if the condition precedent must have 208, 52 N. E. 281. been known by the testator to be im- 794 CHAP. IV.] MISCELLANEOUS PKOVISIONS CONSIDERED. GOO and a fair construction of the instrument may import.'' vSome authorities contend that where the will specifies no time for per- formance, the donee shall have his whole lifetime f but this is too broad a statement, and means no more, properly understood, than to pledge a court of equity to favor one against the harsh opera- tion of conditions, especially of conditions precedent, as generously as circumstances and a due interpretation of the will may permit, where the testator himself has left the point open. On the other hand, as against the rigid prerequisites of the will in respect to time, equity is powerless,® unless, indeed, the court can lay hold of other incidents, such as the failure to declare a gift over on non-performance, and thus wrest a reasonable extension of the donee's opportunity to perform out of the will's imperfect and not prohibitive expression.'^ This, however, a court of equity will, sometimes do, and prevent forfeiture by construing what seemed a condition into a covenant.^ But conditions may be pronounced void when clearly repugnant 4. 2 Jarm. Wills, 7. 8, and Bige- low's note; 1 Salk. 570; Gulliver v. Ashby, 1 W. Bl. 607; 2 Met. 495; 54 Me. 291; Ward v. Patterson, 49 Penn. St. 372. 5. Marshall, C. J., in Finlay v. King, 3 Pet. 346, 7 L. Ed. 702. In 1 Salk. 570, the devisee had his whole life for performance of the condition, and so may it be in other cases; but " reasonable time " appears the only safe criterion, for one's death may happen very early or very late. 6. As where the conditional donee was abroad, and did not know of the condition precedent until it was too late to choose whether to perform or not. 3 Mer. 7; Powell v. Rowle, L. R. 18 Eq. 243. 7. See Hollinrake v. Lister, 1 Russ. 500; 79 Wis. 557, 48 N. W. 661. A devise on condition which names no time of performance is not barred by lapse of time. Page v. Whidden, 59 N. H. 507. But a condition pre- cedent that next of kin shall establish their claims in a year must be strictly complied with, or the gift over will take effect. Hartley Re, 34 Ch. D. 742. 8. Cunningham v. Parker, 146 N. Y. 29, 48 Am. St. Rep. 765, 40 N. E. 635. The testator, after imposing a condition may expressly or impliedly remove the condition and leave the gift unimpaired. Higgins v. Eaton, 188 F. 938 (revoking a legacy and substituting another gift in its place). See Dunlap v. McCloud, 95 N. E. 774, 84 Ohio St. 272 (devise of all one's real estate in trust and then by codicil withdrawing part from the trust for a personal enjoyment). 795 § 600 LAW OF WILLS. [ PAET VI. to the gift to which they are annexed. As when, for example, a testator, after plainly devising lands in fee, proceeds to declare some restraint by way of proviso incompatible with one's right of full dominion ; that the land shall be cultivated after a certain manner, or let forever upon a stated rent, or so that the devisee's interest shall be that of a life tenant merely.^ Dominion, too, involves the idea of beneficial enjoyment and alienation at pleas- ure ; and a condition not to alienate freely is of course incon- sistent with that right of full dominion which a fee imports.-' Perhaps the construction of personal bequests above alluded to, where the testator appears to have annexed something which he must have known impossible by way of condition precedent, is explainable on this same ground of clear repugnacy.^ That a plain and absolute gift of personalty is not to be controlled and qualified by conditions totally repugnant to the interest given and its inci- dents follows as of course.^ And the general rule which upholds the meaning of a will against repugnant words and clauses which cannot be reconciled with its leading purpose has been elsewhere stated.* If a gift of income be absolute, conditions annexed by the will to the principal do not control the income.^ Sometimes a gift, absolute by the will, is made conditional by some codicil thereto.^ It comes, in fine, to a matter of rational construction • 9. 2 Jarm. Wills, 13, 14; Jac. 395; the will would be defeated. Stick- Amb. 479. ney's Will, 85 Md. 79. 1. 2 Jarm. Wills, 14, and Bigelow's 4. Supra, §§ 478, 518. And so, note; Co. Lit. 206 b; Willis v. His- too, in considering the use of pre- cox, 4 My. & C. 201; Zillmer v. Land- catory words, following a clear and guth, 94 Wis. 607, 69 N. W. 568; absolute gift, see § 595. See 105 N. Elliot Re, (1896) 2 Ch. 353. But see W. 161, 328, 128 Iowa 416, 643, 1 §§ 601, 602, pos*. L. R. A. (N. S.) 142; 61 A. 1106, 2. Supra. § 599, and final note. 212 Penn. 564; 53 A. 824, 64 N. J. 3. 2 Jarm. Wills, 19; 35 N. Y. 350; Eq. 16; 108 Cal. 628, 49 Am. St. Rep. 1 Coll. 441; Graham v. Lee, 23 Beav, 97, 41 P. 772; Mulrane v. Rude, 146 388; Pearson v. Dolman, L. R. 3 Eq. Ind. 476, 45 N. E. 659. Cf. Lupton 320; Mulvane v. Rude, 146 Tnd. 476. Re. (1905) P. .'^21. Courts especially as to residuary be- 5. McElwain v. Congregational So- quests are averse to construing con- ciety, 153 Mass. 238. ditions to be precedent when by do- 6. Hughes v. Hughes, 91 Wis. 139^ ing 80 tlio vesting of an estate under 64 N. W. 851. 7D0 ■CHAP. IV.] MISCELLANEOUS PIJOVISIONS CONSIDERED. § GOl and the general intention discoverable in the will, regarded as a consistent whole, should prevail. And while repugnant conditions or clauses must be stricken out in effect, nothing should be pro- nounced repugnant which amounts to a legal and proper qualifica- tion of the terms under which the gift is bestowed. But public policy may constitute an element in such cases besides; and as conditions are here construed into conditions subsequent rather than precedent, — for conditions precedent are never favored in the construction of wills,^ — the impossible, illegal, or impolitic condition being rejected, the gift stands absolute.^ Upon the whole, the condition subsequent appears preferred in construction to the condition precedent, and the vesting of estates as soon as possible aids this preference.* The doctrine of conditions precedent or subsequent and repug- nant, is often involved in the construction of deeds and written contracts; and the illustrations borrowed from cases under those heads may subserve our discussion to bring out the leading prin- ciples more clearly, with perhaps the difference that a will of all writings deserves the most flexible interpretation which can lay open the mind of its maker. § 601. Special Conditions considered; Restrictions upon Alien- ation, etc. There are, however, special conditions to be found in wills, by way of restricting, qualifying, or limiting the gift, which deserves our further attention. One of these is the restriction upon aliena- tion. Out of favor to the devisee of lands, we find a great many cases, and especially the older ones, insisting very strongly upon the controlling force of technical words which import a fee, so as to dis- card peremptorily whatever words of qualification may follow, on the theory that a repugnant condition is attempted, which in con- sequence must be utterly void. A clause providing that land shall 7. Supra, % 562. Dykeman v. Jenkines, 101 N. E. 8. Supra, § 599. See Shaver v. 1013, 179 Ind. 392. Ewald. 134 S. W. 906, 142 Ky. 472 9. Suter v. Suter, 70 S. E. 705, 63 (conditions construed strictly) ; W. Va. 690. 797 § 001 LAW OF WILLS. [pART VI, forever be let at a definite rent fails under this prohibition ; and jet, on the other hand, a clause that the rents of existing tenants shall never be raised is pronounced valid and not repugnant.^ In truth, however, the question is mainly one of intent under the par- ticular will ; and courts stand up for justice and public policy when interpreting a will, and make the construction conform if possible. Rejection for repugnancy is only one of its weapons for making out a lawful and reasonable disposition, and much of the artificial reasoning under this head amounts to nothing more. This consideration should guide us when examing the cases which relate to express restrictions upon alienation under a will. Conceding that a restraint upon alienation is per se repugnant to an estate in fee or absolute gift of any kind, it does not follow that such a condition must always be rejected as repugnant; for the context may show that this restriction or qualification was of the very essence of the devise or bequest, and that no fee, no absolute gift, was contemplated at all, but a qualified gift, obnoxious in no respect to the law or public policy. We ask, then, what did the will mean, and whether its meaning was to qualify or restrain in a legal and proper manner, or, instead, to annex sometliing to a clear gift incompatible with its proper enjoyment, or in a legal sense impolitic and impossible ; and in the latter case the gift is pro- nounced good by throwing out the repugnant annexation, but in the former by treating the qualification as blended in the gift and a component element ; while once more, as we have seen, if the im- politic or impossible were intended to precede the vesting of the gift, it would defeat the gift as a condition precedent, though not if meant for a condition subsequent, for this would render the gift absolute. Yet, we must admit that tJie rule of the common law which in general terms forbade one to annex to his grant or trans- fer of property otherwise absolute, the condition that it should not be alienated, was founded to some extent in public policy.^ 1. See Bf'Ction priceding-. 2 Jarm. Ves. 656; Nourse v. Merriam, 8 Cush. \Vill.4, 14, citing Til)bits v. Tibbits, 19 11. 2. Co. Lit. 233a. 708 CHAP, IV.] MISCELLANEOUS PROVISIONS CONSIDEEED. § 602 § 602. The Same Subject. The legal force of particular words in conferring a fee may of course interfere with a flexible interpretation of the testator's wishes in such cases. And upon a rigid adherence to the strict technical meaning of terms depend many of the precedents which refuse to treat the condition annexed as other than a repugnant qualification of the inseparable incidents to enjoyment. Thus, if lands are devised to A and his heirs, with condition that he shall not alienate, charge with annuity, and the like, the condition is void ; for the devise to A and his heirs is literally interpreted to carry a fee.^ A restraint of alienation in some specified mode is held void on similar grounds ; or a gift over if the devisee dies in- testate or without selling; or a proviso that he shall alienate to no one but B, or must alienate within a given time or shall not alien- ate during a specified time.* Yet English cases support the view that a condition not to alienate to a particular class or person, or except to a particular class or person, or for some limited and rea- sonable period, is good.^ The reason for such a distinction does not appear; perhaps it is that qualifications so fair blend more easily with a gift, and suit the presumed wishes of a testator better than the former and rather impolitic ones, by which a creditor would be impeded in collecting his honest claims against the owner. Some have denied this whole doctrine of the t^estator's right to re- strain even for a day the power of alienation ; ^ and yet that the testator's general right to restrain the unfettered disposal of what he gives by way of bounty to another exists in some sense can hardly be questioned.^ But as an American rule at all events it 3. See Wills v. Hiscox, 4 My. & C. time is void in law. Rosher v. Rosher, 201; 109 Ind. 476. Cf. §§ 559, 560. 26 Ch. D. 801. 4. 2 Jarm. 14-17; L. R. 20 Eq. 189; 6. Christiancy, J., in Mandlebaum 8 D. M. &, G. 152; Shaw v. Ford, 7 v. McDonnell, 29 Mich. 78, 18 Am. Ch. D. 669; 35 N. Y. 340, 617. Rep. 61. And see Freeman v. Phillips, 5. Co. Lit. 223a: Gill v. Pearson, 6 38 S. E. 943, 113 Ga. 589; Lehre'* East, 173: 2 Jarm. 17-19; Barnett v. Will, 131 N. Y. S. 992; 96 N. E. 546, Blake. 2 Dr. & S. 117. But absolute 251 111. 603. restraint upon alienation for a stated 7. See Bigelow's note to 2 Jarm, 799 § 60S LAW OF WILLS. [PAIIT VI. eeems at length well settled by the weight of authority that when a devise or conveyance is made technically in fee, a restraint upon alienation attempted further by way of condition shall be taken as void for repugnancy.^ As to the gift of personal estate, restraints of alienation have frequently been sustained, so long at least as they operate upon property which has not yet fallen into the donee's full possession and dominion ; ^ for personalty must await payment and distribu- tion, while real estate generally vests in enjoyment at once on the testator's death, the probate of the will relating back for that pur- pose. But to incumber a legacy to A, his executors, administra- tors, and assigns, with a general restraint upon it^ disposal or a gift over of what he does not spend or dispose of during his life, and the like, is held in the English chancery courts void for repug- nancy, as in a devise.^ Whether, then, in realty or personalty, the true principle of rejecting the repugnant condition of a gift appears to be that, tech- nically speaking, an absolute estate or interest has under the lan- guage of the will vested sufficiently in the devisee or legatee; and having so vested, and in the case of personalty having vested moTO- Wills, 14, 15, 18. A ground of dis- 141 U. S. 296, 315, 35 L. Ed. 721, tinction between English and Ameri- 733; Todd v. Sawyer, 147 Mass. 570, can precedents under this head is 17 N. E. 527; Allen v. Craft, 109 suggested in the larger scope of our Ind. 476, 9 N. E. 919, 58 Am. Rep. public registry system; for the Eng- 425; Anderson v. Gary, 36 Ohio St. lish decisions appear to be based 506, 38 Am. Rep. 602; 29 Mich. 78, upon the necessity of protecting cred- 18 Am. Rep. 61. Cf. Beall v. Wil- itors, whose means of ascertaining in- son, 143 S. VV. 55, 146 Ky. 646; cnmbrances upon title from the rec- Trust Co. v. Wolcott, 81 A. 1057, 85 ords are imperfect by comparison. 91 Conn. 134. U. S.. 716. See 133 Mass. 170 That 9. Supra, §§ 557-559; 2 Jarm. English courts of equity sanctioned Wills, 19, 22; Churchill v. Marks, 1 the creation of conditions against Coll. 441. alienation in the case of settlements 1. Shaw v. Ford, 7 Ch. D. 669; 1 upon a marrie^l woman is well known. Ch. D. 229; Henderson v. Cross, 29 SHioul. Dom. Rel. § 110. Beav. 216; Hill v. Downes, 125 Mass. 8. Zillmer v. Landguth, 94 Wis. 506; Dugdale Re, 38 Ch. D. 176; 113 €07, 69 N. W, 568; Potter v. Couch, Ind. 18, 14 N. E. 571. 800 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § C02 over in the legatee's own possession and dominion, any further qualification upon the donee's absolute dominion over the property or upon its legal devolution must be inconsistent with the gift and consequently void. If there be more than this in the doctrine, it must consist in some ill-defined principle of public policy which a court of construction may lay hold of to defeat the testator's at- tempt to restrain alienation in some instances but not in others. For the testator's intention to qualify reasonably what he chooses to bestow is not incapable of taking effect when not contrary to law ; and as we have elsewhere shown, a devise or bequest absolute in terms may be modified in effect by other clauses of the will, so as, for instance, to cut down what appears a fee to a life estate, and otherwise restrict the gift in accordance with the testator's mean- ing, though not so as to violate his intention.' It is true that the English chancery hag usually treated an equitable life estate as alienable and liable for the life tenant's debts accordingly.^ ISTot- withstanding the long controversy, however, whether the rule of the common law against restraining alienation should be applied to equitable life estates created under a will, tbe English chancery rule that this equitable life estate is alienable by the life tenant, subject to his debts, is not universally admitted in this countiy. On the contrary many of our State courts reject the theory and permit the trust to render the income inalienable by appropriate words.* 2. Supra, § 559. A clause of a will Ky. 76; Cosgrave Re, (1903) 2 Ch. forfeiting a reversionary devise given 708; Wallace v. Smith, 68 S. W. 131, absolutely upon assigning or at- 24 Ky. Law, 139 ; McCravey v. Olto, tempting to assign is valid. Porter 74 S. E. 142, 90 S. C. 447 (code) ; Re (1892), 3 Ch. 481. Lamar v. Lamar, 73 S. E. 1057, 137 3. 18 Ves. 429. Ga. 734; 108 Me. 443, 81 A. 7S4; 73 4. See Broadway National Bank v. S. E. 90, 70 W. Va. 76. Adams, 133 Mass. 170, 43 Am. Rep. A clause invalid for restraint on 504, with copious citations, where alienation cannot be validated by this subject is fully discussed. And agreement of the parties. Church v. see § 60'6, post; 134 S. W. 153, 142 Wilson, 137 N. Y. S. 1002. 51 801 § 603 LAW or WILLS. [part VI. § 603. Conditions in Restraint of Marriage. That public policy affects various special conditions which are treated under the head of repugnancy is undeniable. To take, for instance, the condition in restraint of marriage. Here we find nu- merous and subtle distinctions drawn out, all of which originate in the rule of the civilians that conditions, precedent or subse- quent, in general restraint of marriage, although accompanied by a gift over, derogate from public policy and are void. This maxim has been admitted in devises of real estate,^ though the question more commonly arises in gifts of personalty, where the ecclesias- tical courts, in dealing with legacies, borrowed freely from the Roman law and made this canon, among others, quite familiar to our jurisprudence.^ As an Anglo-Saxon doctrine, the rule finds important modifica- tions. A condition in palpable and unqualified restraint of mar- riage, and to promote celibacy, is indeed void; and public policy is violated whether the testator's object was to induce pure or im- pure celibacy, and whether he meant to restrain marriage or made a gift whose natural operation is to restrain, without clearly in- tending that it should so operate.^ More especially, where the gen- eral restraint upon a legatee's marriage is imposed by a testator who has no interest therein, it is and should be deemed both in- valid and impolitic.^ On the other hand, the canon of the civilians against such prohibition is not adopted in its full force ; the x^nglo- Saxon, court gives more heed than did ever Roman tribunal, to the last wishes of a testator, though the will be unnatural, inoffi- cious, or of doubtful legality ; and in some of the United States 5. 2 Jarm. Wills, 50; 9 East, 170; 399; Bellairs v. Bellairs, supra; Jones V. Jones, 1 Q. B. D. 279. Cornell v. Lovett, 35 Penn. St. 100; 6. 2 Jarm. Wills, 43, 44; Bellairs Jones v. Jones, 1 Q. B. D. 279. v. Bellairs, L. R. 18 Eq. 510. See 8. See 2 Redf. 291; Maddox v. § 22. Maddox, 11 .iratt. 804; 2 Jarm. 44, 7. 2 Jarm. Wills, 43-54, and cases and notes; Reynish v. Martin, 3 Ark. cited, Bigelow's notes; 2 Redf. Wills, 330. 290-298; Allen v. Jackson, 1 Ch. D. 802 CHAP. IV.J MISCELLANEOUS PKOVlSlOIsS CONSIDEEED. G03 certainly the disposition has been to repudiate English ecclesiasti- cal precedents and yield to continental maxims and policy no greater respect becanse of this sort of spiritual sanction.* The modem genius of the age is to find out its own public policy and make that the rule of conduct. Hence are admitted various qualifications. A condition that one's widow shall not marry again is in modem times universally upheld as valid.^ Our law puts the remarriage of a widower on the same ground, and permits gifts with corresponding condition to stand ; ' though in this instance departing from the Roman ecclesiastical rule.^ Nor is a partial restraint upon marriage void ; such as a condition to marry or not marry with the consent of someone specified ; ^ or to marry or not marry an individual or one of a class of individuals ; ^ or to marry or not mari-y with prescribed ceremonies ^ or under fair restrictions as to time, place, age, and other circumstances ; ' supposing, of course, that all such 9. 2 Jarm. Wills, 44. 1. 2 Sim. N. S. 235; Allen v. Jack- son, 1 Ch, D. 339; Cornell v. Lovett, 35 Penn. St. 100; Hibbits v. Jack, 97 Ind. 570, 49 Am. Rep. 478; 91 Ind. 266, 46 Am. Rep. 598; 34 Ch. D. 362; Martin v. Seigler, 32 S. C. 267, 3 S. E. 597. See Whiting's Settlement, (1905) 1 Ch. 96; (1904) 1 Ch. 120, 431; Herd v. Catron, 97 Tenn. 662, 27 S. W. 55, 137 L. R. A. 731. And this holds whether the b quest is by the husband or some other person. Newton v. Marsden, 2 J. & H. 356. 2. Allen v. Jackson, and Cornell v. Lovett, supra. Conditions of this kind are presumed to mean marriage after testator's death and not before. See further, 108 Tenn. 505, 68 S. W. 250; Harlow v. Bailey, 75 N. E. 259, 189 Mass. 208; 62 A. 456, 70 N. J. Eq. 572; Holbrook's Estate, 62 A. 368, 213 Penn. 93, 110 Am. St. Rep. 537, 2 L. R. A. (N. S.) 545. 3. 2 Jarm. 44. A gift " during wid- owhood " is no more than a gift for life. 8 Md. 517. 4 2 Vem. 573; Dashwood v. Bulke- ley, 10 Yes. 230. As to marriage with consent of trustees, such consent is matter of substance rather than form. 44 Ch. D. 654. 5. Graydon v. Graydon, 23 N. J. Eq. 229; 1 Vem. 19; Davis v. Angel, 4 D. F. & J. 524 ; Hodgson v. Halford, 11 Ch. D. 959; 16 Ch. D. 188; Phil- lips v. Ferguson, 85 Va. 509, 17 Am. St. Rep. 78, 1 L. R. A. 837, 8 S. E. 241. 6. 1 Moll. 611; 2 Jarm. Wills, 44. 7. 30 W. Va. 171, 10 S. E. 1073. Conditions not to marry a man of a particular pi-ofession or any one with- out a sta.ted large income have been declared invalid; while conditions not 803 § 603 LAW OF WILLS. [pART VI. particular conditions are bona fide, that compliance or non-com- pliance therewith is from the nature of things practicable, and that nothing irrational, no covert restraint or prohibition, no utter absence of a real interest in the testator himself, no violation of policy in otlier respects, is involved in a gift so qualified.^ And conditions like these may, in our modern age, be annexed to gifts, whether of real or personal estate, or both, under a will. , Another modification of the rule, which leads, it must be con- fessed, to some fine and not very satisfactory distinctions, and yet has reason and Roman precedent on its side, is this: that a bequest during celibacy, a bona fide provision for one's maintenance while unmarried, and especially for a legatee who had a more natural claim upon the testator's bounty as a single person than if mar- ried, will be upheld ; ^ and no beneficial gift of this kind can be perverted in construction to an injurious and merely conditional one. And so, too, a gift of income or support to A, for life, or " as long as she remains my widow," or " during widowhood," is less obnoxious than a gift which annexes the condition against re- marriage peremptorily, and may be upheld more confidently, for this is a limitation to one's bounty on sensible grounds rather than a penalty by way of condition.^ In all cases where conditions in apparent restraint of marriage to marry a Papist or a Scotchman 971; Brotzman's Appeal. 133 Penn. St. have been sustained. 1 Jarm. 44. But 478, 19 A. 564; 124 N. C. 51, 32 S. rules of public policy are apt to vary E. 377. Where the gift over in .such in application in different countries a case is stated to be on the wife'3 and at different eras. death, it may be a question whether 8. 2 Jarm. Wills, 45-50. or not, upon her marriage, the gift 9. 2 Jarm. Wills, 44, 45, and Bige- over takes immediate effect. Tredv^^ell low's note. The distinction does not Be, 2 Oh. (1891) 640. See as to gift hold in gifts of real estate. Jones v. over, (1899) 1 Ch. 63 (legatee pro- Jones, 1 Q. B. D. 274; Heath v. Lewis, vided for in any event) ; Morgan v. 3 D. M. & G. 954; Cornell v. Lovett, Christian, 133 S. W. 982, 142 Ky. 44; 35 Penn. St. 100. Fitzgerald's Estate, 119 P. 96, 161 1. Summit v. Yount, 109 Ind. 506, Cal. 319; Maddox v. Yoe, 88 A. 225, 9 X. E. 582; Knight v. Mahoncy, 152 121 Md. 288. Mass. 523, 9 L. R. A. 573, 25 N. E. 804 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 603 come into view, it may be an important consideration whether or not the testator has declared a gift over on breach of the condition. In a mere provision for support during celibacy, no gift over is needful ; for the bequest is essentially of a temporary and limited kind.^ And a gift in general restraint of marriage is void whether a gift over accompanies it or not.^ But if the gift be properly a conditional one, courts frequently pronounce the restraint, though a permitted one, mere in terrorem words, unless a gift over for breach is added, to make forfeiture complete, and show that the testator was really in earnest.'* This in terrorem doctrine explores in slippery places ; nor are the instances few where conditions pre- cedent appear to have been thus treated, and the legatee's title made absolute, though, logically speaking, it is only in conditions sub- sequent where the rejection of qualifying terms should leave the gift positive and secure.^ But, at all events, a testator has no as- surance that his words forbidding marriage with a particular per- son, or under age, or without the consent of another, or by way of imposing any permitted restraint (except that best founded one as to a widow's remarriage), will be treated in construction as more than an empty threat, unless accompanied by a gift over of the property in case of non-compliance with the condition.^ 2. Heath v. Lewis, 3 D. M. & G. vsigned for this in terrorem doctrine; 954; Mann t. Jackson, 84 Me. 400, and, as Mr. Jarman has observed, 30 Am. St. Rep. 358. 16 L. R. A. 707, they savor of excessive refinement. 24 A. 886 ; 59 A. 1025, 99 Me. 495. The truth is, that the notion of public 3. Bellairs v. Bellairs, L. R. 18 Eq. policy here, as in other instances of 510; 2 Jarm. 44; Smythe v. Smythe, the kind, vacillates in the judicial 90 Va. 638, 19 S. E. 175; (1895) 1 mind, and various shifts are contrived Ch. 449. in consequence. 4. 2 Jarm. Walls, 45, and various 6. See 2 Jarm. 46. A separate equit- case^ cited; Lloyd v. Branton, 3 Mer. able estate may be restrained as to 108; Duddy v. Gresham, 2 L. R. Ir. alienation during the woman's cover- 442 ; Cornell v. Lovett, 35 Penn. St. ture even if the restriction is made 100; Maddox v. Maddox, 11 Gratt. while she was unmarried. 21 Fla. 804; Harmon v. Brown, 53 Ind. 207; 629. For construction of a life estate Dawson v. Oliver-Massey, 2 Ch. D. determinable on marrying again, 753; Otis v. Prince, 10 Gray, 581. rather than a fee subject to devest- 5. Various reasons have been as- ment, see Fuller v. Wilbur, 170 Mass. 805 § 604 LAW OF WILLS. [part VL § 604. Condition as to Residence, assuming Name, maintaining Good Character, etc. A condition requiring or forbidding constant residence in some particular place or at some particular house is either to be reason- ably interpreted, if possible, or else pronounced void as unreasona- ble of itself and obnoxious to public policy ; and this latter view is always tenable where the restraint must so operate as to involve the donee in some breach of permanent duty, as for example, in compelling married persons to live apart.^ A condition may favor the obligations of marriage, but it cannot discourage them.^ Ordi- narily one who is to be supported under a provision in a will is not limited to live in a particular place, especially if there be good reason for leavinsi: it.^ But a condition that an infant shall live 506, 49 X. E. 916. A devise or legacy to a wife while she remains a widow means for life or during widowhood, and she does not take absolutely. Brunk V. Brunk, 137 X. W. 1065 ( Iowa ) . And eee Briggs v. Caldwell, 84 A. 823, 236 Penn. 369; Miller's Will, 74 S. E. 888, 159 X. C. 123 (limitation over) ; Hammond Be, 2 Ch. D. 342. A provision for two daughters or sisters as long as they remain unmar- ried is not unnatural nor against pub- lic policy. See Ruggles v. Jewett, 99 N. E. 1092, 213 Mass. 167. There may be a condition in a will requir- ing consent to marriage, and if the consent was given during the testa- tor's life the condition may be deemed fulfilled. Park Re, (1910) 2 Ch. 322. In Wag.stafr Re, (1908) 1 Ch. 162, the widow was the survivor of a big- amous marriage. 7. See 2 Jarm. Wills, 57, 58; Wil- kinsfjn v. Wilkinson, L. R. 12 Eq. 604; 54 Hun, 552; Conrad v. Long, 33 Mich. 79. A life annuity to A, to cease when A and B should cease to reside together, is not determined by B's death. Sutcliffe v. Richardson, L. R. 13 Eq. 606. 8. 3 Dem. (X. Y.) 108; Moore Re, 39 Ch. D. 116; Hawke v. Euyart, 30 Xeb. 149, 46 X. W. 422. The cases on this point run somewliat closely, out of deference to the power one has to provide for a legatee's temporary sup- port without directly annexing a con- dition to the gift. See condition pre- cedent upheld in Gunning's Estate, 83 A. 60, 234 Penn. 139. Thus a gift* to a married woman of income so long as she should remain A's wife, with a provision that if she should be left a widow or for any cause should cease to be A's wife, she should have the principal, was held valid in Thayer V. Spear, 58 Vt. 327, 2 A. 161. For here, as the court remarks, there was no direct inducement hold out to sepa- ration. See, also, where the gift was upon condition, but the inducement indirect. Born v. Horstmann, 80 Cal. 452, 5 L. R. A. 577, 2 P. 169, 338. 9. Proctor v. Proctor, 141 Mass. 165, 6 N. E. 849. 80G CHAP. IV.] MISCELLANEOUS TKO VISIONS CONSIDERED. § G04: during minority with a suitable person named as sole guide and guardian may be upheld under most circumstances.^ A gift may be made on condition that the devisee or legatee shall assume the testator's or some other specified name. Such a con- dition should be fairly constiaied, and of course fairly complied with, though a formal change of name under act of the legislature is not in all cases indispensable.^ A gift may be made on condi- tion of good conduct and remaining in the homestead for a pre- scribed period.^ But a gift to A with a forfeiture if he enters his country's military or naval service is held void, as against public policy.* In many miscellaneous instances conditions clear of meaning are uplield as violating no rule of policy. As in a gift on condition that a certain chapel is built in three years,^ or on condition of rearing in a prescribed religious faith,® or on condition of trying to defeat a pending lawsuit against the testator,^ or on condition that the parties become reconciled.^ A gift may be made to a grandson of capital held in trust to be paid him on his arrival at a prescribed age (the income payable to him meanwhile), if, in the judgment of the executors, he has learned a useful trade, busi- 1. Johnson v. Warren, 74 Mich. 491, conducted herself as hitherto, was 42 N. W. 74. There may be a devise held forfeited, where she had a bas- to A of a farm with a condition pre- tard child at nineteen and was turned cedent of " moving upon " it, other- out of the house. Reuff v. Coleman, wise a devise over. Robertson v. Mo- 30 W. Va. 171, 3 S. E. 597. well, 66 Md. 530, 565, 8 A. 273. An 4 g^ard Re, (1908) 1 Ch. 383. infant cannot be divested of a gift, And see 141 N. Y. S. 700 (to set aside because of "refusal or neglect"' to ^^^ adoption). continue occupying the mansion 5^ Tappan's Appeal, 52 Conn. 412. house, since he must reside where his g Magee v. O'Neill, 19 S. C. 170, guardian prescribes. (1894) 1 Ch. 45 ^.m. Rep. 765. 351. 7. Cannon v. Apperson, 14 Lea, 553. 2. See 2 Jarm. Wills, 57; 1 Ch. D. g. Page v. Frazer, 14 Bush. 205. A 441; Barlow v. Bateman, 3 P. W. 65. condition, in a brquest for endowing 3. A gift of this character to a ser- a church, that the minister shall wear Aant girl of eighteen, if she remained a black gown in preaching is valid, in the family until twenty-one, and Robinson Re, (1897) 1 Ch. 85. 807 § 605 LAW OF WILLS. [PAET VI. ness, or profession, and is of good moral character.® A gift may be made on condition of rendering life support to another.^ Or on condition of the reformation of a dissipated beneficiary.^ That a condition not uncertain or ambiguous happens to be injudicious is insufficient reason for setting it aside ; but all conditions should be justly and reasonably construed, and the judicial disposition is to uphold gifts which are upon just and reasonable condition.^ § 605. Condition not to dispute the Will, etc. Modem wills seek, in some instances, to prevent litigation, by forbidding the beneficiaries named to dispute the will. The law on this point is likely to be more firmly settled hereafter than it is at present. To exclude all contest of the probata on reasonable ground that the testator was insane or unduly influenced when he made it is to intrench fraud and coercion more securely ; and public policy should not concede that a legatee, no matter what ground of litigation existed, must forfeit his legacy if the will is finally admitted. As for construction proceedings, the testator's own lan- guage may have rendered them necessary. On the other hand, while the probate of the disputed will does not conclude that there was no just cause for opposing it, the testator's last wishes are au- thenticated as he expressed them; and both in probate and con- struction proceedings, all speculative and heartless litigation, by which so many estates have been wasted, may well be discoun- tenanced. No arbitrary rule meets well the cases likely to arise 9. Webster v. Morris, 66 Wis. 366, 244; 48 S. E. 412, 120 Ga. SIO; 57 A. 28 N. W. 353, 57 Am. R. 278; 49 A. 387, 76 Vt. 338 (attending to testa- 574, 70 N. H. 591. And see 59 Hun, tor's grave) ; 71 N. E. 801, 185 Mass. 615. 560, 102 Am. St. Rep. 362; Loy v. 1. Irvine v. Irvine, 28 Ky. L. R. McClister, 133 S. W. 950. 141 Ky. 262. 89 S. W. 1193. 800. 2. See Cassera v. Kennedy. 147 111. 3. A condition should be reasonably 6€0, 35 N. E. 738 ; Burnham v. Burn- construed so as to uphold, rather than ham. 79 Wis. 557, 48 N. W. 661; b? construed in an illegal sense so Ilawke V. Euyart, 30 Neb. 149, 27 as to invalidate. 160 Mass. 431; 147 Am. St. Rep. 391, 46 N. W. 422. And 111. 660. see Iloyt v. Hoyt, 59 A. 845. 77 Vt. 808 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 605 under this head, but circumstances ought to influence the construc- tion. The English rule applied to legacies seems the true one ; namely, to treat a condition not to dispute the will as in terrorem, and void for being against sound policy, wherever it appears that the lega- tee had probable cause for contesting the validity or effect of the will, though not otherwise.^ And if the maxim is a just one, it ought to avail as well in a devise ; and generally, unless, perhaps, tJie language of the particular gift and circumstances require the restraint to be interpreted as a strict condition precedent.^ But Mr. Jarman shows that this doctrine has been denied where lands were concerned,® and even intimates that the in terrorem of such conditions where personalty is given has no greater force than in the permitted restraints of marriage; so that a gift over of the legacy, upon a breach, will make the condition good.^ In this country the question appears still an open one, though decisions bearing upon the point may already be found. All clauses or provisions of this character should at least be construed as strictly as possible, being penal in their operation.^ In some States 4. 2 Vern. 90; 3 P. W. 344; Morris the law involved, on one side or the V. Burroughs, 1 Atk. 404; 2 Jarni. other; that marriage, trade, agricul- Wills, 59. ture, and the like, may trench on the 5. Restraints of marriage in ter- liberty of the law, but it is imma- rorem are usually found as conditions terial to the public whether land is subsequent. Yet we have seen that enjoyed by the heir or the devisee, the doctrine avails quite freely even This statement appears hardly satis- where the conditions seem imposed factory. Is it not for the interest of rather as precedent to the gift. Supra, the public that doubtful issues of au- § 603. thenticitv as to one's will should b; 6. Cooke V. Turner. 15 M. & W. ^^''^y adjudicated? Collusive pro- 727; 14 Sim. 493. It was here argued feedings for procuring divorce are not that the condition was void as being permitted; nor should fraud protect "contrary to the liberty of the law," ^^^^^ in securing a probate. See Hoit ,„,/,. «, „„ v. Hoit, 42 N- J. Eq. 388, 7 A. 856. an expression to be found m fenep. ' ^ ' Touch. 132, which seems pertinent, 7. 2 Jarm. 58, citing 2 P. Wms. though these words, to be sure, might ^^S, and 11 W. R. 935. mean something else. The court re- 8. Chew's Appeal, 45 Penn. St. 228. sponded that there was no policy of 809 G05 LAW OF WILLS. [PAET VI. the bona fide Inquiry whether a will was procured through fraud or undue influence is certainly not to be stifled by any prohibition contained in the instrument itself.^ But in other States such con- ditions are pronounced valid, both as to real and personal prop- erty.^ So far as needless testamentary construction is concerned, or an attempt to impeach the title to what is given under the will and invite contests on technical points, or any unfair probate con- test, the operation of a condition not to litigate may be fairly favored.^ 9. Lee v. Colston, 5 T. B. Mon. 246; Jackson v. Westervelt, 61 How. Pr. 399. 1. Thompson v. Grant, 14 Lea, 310; Donegan v. Wade, 70 Ala. 501; Beall V. Schley, 2 Gill. 181, 41 Am. Dec. 415; Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; 84 N. Y. S. 937. 1 Redf. Wills, 679, supports this latter view. '■ If any or either of my children shall enter a caveat against this my will, he or they shall pay expenses of both sides," is a good condition without a gift over, against a devisee taking real estate under the will. Hoit V. Hoit, 42 N. J. Eq. 388, 7 A. 856. These conditions are pronounced valid and legal. Not to dispute a per- son's legitimacy. Stapilton v. Stapil- ton, 1 Atk. 2. Not to become a nun. Dickson's Trust, 1 Sim. N. S. 37. Not to interfere with the management of of guardians. Jac. 157 n. Not to in- t'rfere with the trustees (as to an annuitant). 45 Ch. D. 426. Not to bring in a bill against the estate. See Farnham v. Baker, 148 Mass. 204. 19 N. E. 371. None of these, how- ever, it is submitted, are so obnoxious to .sound policy as the condition not to contest the will whore reasonable cause for a contest may exist, and either there is fundamental doubt whether the will was the testator's own or the disposition is so doubt- fully expressed that only a court can decide what it really meant. A legacy may be given to a testa- tor's step-son, on condition that the latter's mother, the wife of the testa- tor, does not elect under the statute to take against what the will pro- vides for her. Carr's Estate, 138 Penn. St. 352, 22 A. 18. 2. See Smithsonian Institution v. Meech, 169 U. S. 399, 42 L. Ed. 793 ( 1897 ) , which sustains the condition that legatees " acquiesce " in the will, where the testator asserted title to certain real estate which the litigants contended that he did not own. But a bill reasonably brought to ascertain the true construction of the will on proper points, without thwarting the designs of the testator, is not fairly cause for a forfeiture threatened by the will to any one undertaking to " sue or disturb " executor or trustee or other beneficiary under the will. 79 Mo. 146. For forfeiture incurred under a condition not to interfere with the management of the trust, see Adams v. Adams. 45 Ch. D. 42G. And 810 €HAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § GOG § 605a. The Same Subject: Bond to abide by Provisions of Will, etc. A bond to abide by the provisions of a will and not to contest it is valid, and so are agreements generally among those interested in the estate, for the avoidance or adjustment and compromise o£ family controversies ; nor can public policy be set up in contraven- tion of such arrangements.^ Statutes on such matters are found in some States. § 606. Conditions against Bankruptcy: Spendthrift Trusts, etc. One more condition to be noted is that which seeks to protect against the donee's bankruptcy or insolvency, or establishes a " spendthrift trust " as it is sometimes called. A will which pur- ports to vest in a devisee or legatee either real or personal property or the income of real or personal property, and secure to him its enjoyment free from liability for his debts, is void on grounds of public policy, not to add repugnancy, as being in fraud of the rights of creditors ; or, in other words, because it takes away an- other of the incidents of property as essential as the right to dis- pose of it.* We have already ^ commented upon the indisposition of chancery to permit the fettering of alienation, and one conse- quence of the right to alienate is the subjection of the owner's property to his debts. Bankruptcy or insolvency operates as a transfer of one's property by act of law, and an exemption against see Friend's Estate, 58 A. 853, 209 miehael, 72 Mich. 76, 16 Am. St. Rep. Penn. 442, 68 L. R. A. 447 (probabla 528; 1 L. R. A. 596, 40 N. W. 173, 83 cause) ; Kayhart v. Whitehead. 31 A. Ga. 636, 22 Am. St. Rep. 487, 12 S. 1133, 78 N J. Eq. 580 (appeal from E. 1065. Aliter, as to sinister agree- probate) ; Rouse v. Branch, 74 S. E. ments between parties to induce some 133, 91 S. C. Ill (gift over for testator to make his will in favor of breach); Drennen v. Heard, 198 F. particular parties. 65 Vt. 434, 36 414 (withdrawing a caveat before the Am. St. Rep. 876, 26 A. 530. hearing); Wall Re, 136 N. Y. S. 452, 4. 2 Jarm. Wills. 22: Nichols v. 141 N. Y. S. 705 (illegal devise dis- Eaton, 91 U. S. 710, 23 L. Ed. 254; putable). Brandon v. Robinson, 18 Vcs. 429, 3. Barrett v. Garden, 65 Vt. 431, 433; Mr. Justice Miller, in Nichols 36 Am. St. Rep. 876, 26 A. 530; v. Eaton, supra. Story Eq. § 625; Carmicbael v. Car- 5. Supra, § 601. 811 § GOG LAW OF WILLS. [PAET VI. this mode of transfer is not to be created bj a gift.^ But the dis- tinction noted in restraint upon marriage avails once more to dis- tinguish in s<3nse a gift upon condition from a mere limitation. Tims, a gift of the income of property, real or personal, to cease on the bankruptcy or insolvency of the devisee, is held good ; ^ for no absolute transfer is here intended, but only a provision during solvency, an encouragement to the punctual discharge of one's debts, which neither the law nor public policy can denounce. But upon a further extension of this principle, the cases are somewhat discordant; though the main principle which runs through them appears to be that if the devise or bequest over vests any interest in the bankrupt or insolvent himself, anything which he is to re- ceive and enjoy whether by himself or separably in connection with others, it may be paid over to his assignee and appropriated to his debts.^ No method then finds clear support to enable a testator to settle the property for the direct and exclusive behoof of his bene- ficiary through all vicissitudes of fortune. But instead of making the trust simply cease and detennine upon his bankruptcy or in- solvency, the will may provide that in such event that part of the income shall go to some other person or persons specified, and even to wife and children, since their interests are distinct from his own. Leading American cases, and perhaps the weight of English authority, favor this further proposition ; that if the gift over is declared for the support of the bankrupt and his family in such manner as the trustee may think proper, there is nothing left to which creditors or the assignee in bankruptcy can assert a valid claim ; ^ and a payment voluntarily made to the bankrupt under the terms of such discretion is not to be disturbed.^ 6. Nichols V. Eaton, supra. took effect in Broughton Re, W. N. 7. Brandon v. Robinson, 18 Ves. 109. See, further, Metcalfe v. Met- 433; 1 Bro. C. C. 274; 3 Jarm. 25- calfe, 3 Ch. (1891) 1. 42, and cases cited; Lewin Trusts, 8. Lewin Trusts, 80; Nichols v. 80; Tillinghast v. Bradford, 5 R. I. Eaton, supra; Samuel v. Samuel, 12 205; Nichols v. Eaton, 91 U. S. 716, Ch. D. 125; 2 Jarm. 33, 30, and cases supra. Notwithstanding the annul- cited, ment of an insolvency, the forfeiture 9. Nichols v. Eaton, 91 U. S. 716, 812 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. 606 The earlier English rule, which several of our State courts fol- low, treats an equitable life estate given under a will, as so insep- arably subject to the debts of the beneficiary, besides being alien- able by him, that no provision, however explicit, which does not operate as a cesser or limitation of the estate itself, can protect it from creditors." But various other States have rejected that rule, regarding it sound policy that a testator shall bestow his own property in trust with a prudent regard to the vicissitudes which the object of his bounty is liable to encounter or to the dangers of his improvidence. Accordingly they permit him to qualify his gift, without cesser or limitation at all, by any provision, whether express or implied, direct or indirect, to the effect that the bene- ficiary's right to receive income shall not be alienable by him in anticipation nor subject to be taken by his creditors in advance of payment to him.^ 23 L. Ed. 254; Easterley v. Keney, 36 Conn. 18; Twopenny v. Peyton, 10 Sim. 487; Gtodden v. Crowhurst, ib. 642. And see Shankland's Appeal, 47 Penn. St. 113; Nickell v. Handy, 10 Gratt. 336; Campbell v. Foster, 35 N. Y. 361; Pope v. Elliott, 8 B. Mon. 56. 1. See Nichols v. Eaton, supra, to this effect. In the opinion of the court by Mr. Justice Miller, the cases are exhaustively collected and com- mented upon. Admitting that the English cases are not clearly in favor of this view^, and that such provisions tend to evade the older policy of the law, it is here maintained that the measure of the rights of creditors, and the policy of subjecting property to one's debts under all circum- stances, is not so strongly adverse to the debtor in American States at the present day as the English chancery courts have been wont to define it. See numerous State decisions here cited. For forfeiture by any act render- ing one " liable to be deprived of " the beneficial enjoyment of the be- quest (e. g., by bankruptcy, see (1895) 2 Ch. 235. 2. Cases supra; SRI. 205; 4 Rich. Eq. 131. 3. Rife v. Geyer, 59 Penn. St. 393, 98 Am. Dec. 351; White v. White, 30 Vt. 338; 8 B. Mon. 56; Broadway National Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504; 151 Mass. 266, 21 Am. St. Rep. 448, 7 L. R. A. 393; 23 N. E. 843; 151 Mass. 266; 81 U. S. 716, and cases cited. One in- direct way of thus keeping out A's creditors is for the testator to give the property to A's daughters subject to the condition that they " support their father during his life." 146 Mass. 369, 15 N. E. 783. See, fur- ther, Carew Re (1896), 1 Ch. 527. 813 § 608 LAW OF WILLS. [pAET VI. § 607. Limitation, etc., distinguished from Condition. One result of our present investigation is to confirm the dis- tinction which the law makes between gifts upon condition and gifts upon some limitation, conditional or otherwise. A de\ase or beques.t is by way of limitation when the estate or interest thereby created is bounded or circumscribed in time, 3^,- that it cannot lai=.t beyond the happening of a stated contingency. Th^ conditional limitation is of a mixed nature, partaking of both coDdit^on and limitation ; and here the condition is followed by a limitation over to a third person in case the condition be unfulfilled or broken. Thus, a simple gift of property on condition that A shall not re- marry is a gift upon condition ; a gift on condition that A shall not remarry, otherwise over to C, is a gift upon conditional limitation, and more likely to involve forfeiture on breach of the condition ; while a gift which carries the beneficial enjoyment of income to A until his or her remarriage and no longer, is a gift upon limita- tion and cannot endure after A marries again.* A testator, as the reader has seen, may place limitations, not too remote, upon his gift of real or personal property. § 608. Rights and Duties of Testamentary Trustees. Trusts, or those rights of property which one party holds for the benefit of another, are cognizable in courts of chancery, and may originate in a variety of ways, with or without formal writ- ings and whether the holder was selected as a trustee or not. The trust itself arising expressly or by necessary inference, equity will As to spendthrift trustn and pro- 207 Mass. 6 (distinction made). The tecting against creditors generally, intent here is to 'piit the fund and its Bee ^lason v. R. I. Trust Co., 61 A. 57, income beyond the reach of the bene- 78 Conn. 81; 62 A. 948, 78 Conn. fieiary's creditors. 498; Goulder Re. (190.5) 2 Ch. 100; 4. See 4 Kent. Com. 122, 126; 55 A. 1067. 206 Penn. 40.'5 ; 82 N. E. supra, §§ 562, 598, 600, 003; 813, 230 111. 610; 95 N. E. 985, 250 Whiting v. Whiting, 42 Minn. 548. In 111. 616 (tentator need not state rea- Preston Estates, 1 Washburn Real son nor declare .specifically) ; 99 N. Property, and other works which E. 662, 255 111. 433; 99 N. E. 97; treat of real estate, these distinctions Lathrop v. Merrill, 92 N. E. 1019, are furtlier illustrated. 814 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIBEEED. § 608 not suffer the trust to fail for want of a trustee nor disclaim its inherent jurisdiction to appoint, fill, and create vacancies and su- pervise the execution of the trust in the interest of the beneficiaries concerned. And the quality and continuance of the trustee's in- terest in the property under his charge and control must be deter- mined by the purpose and exigency of the trust, which may, as circumstances direct, amount to an estate, interest, or mere power in or affecting the property in question.^ There may be express trusts, implied trusts, resulting trusts, or constructive trusts; but the operation and policy of the Statute of Frauds and our modern wills acts is to reduce testamentary trusts to the head of express trusts and require them to be created and evidenced by a written instrument duly signed and witnessed. Where the validity of the trust depends upon the effect of the will in transferring title to the property, the will must be executed according to the statute,^ or it cannot be used as a declaration and proof of the trust.® Into the general law of trusts and trustees we need not enter. But of testamentary trusts we may observe that probate legisla- tion and practice, especially in the United States, tends at the pi'esent day to assimilate such trustees, as to their credentials, the method of their appointment and removal, and the supervision of their functions, to the executor. Wherever, in fact, the testator intends that some trust shall be carried out with reference to the residue of his estate or some portion thereof, wherever there is something more to be done than simply to pay off all debts, de- mands, and legacies, wind up the affairs and the property, and dis- tribute the balance among the objects designated by the will or statute, permitting both realty and personalty to go absolutely and forever to certain parties, it is proper that the will should declare 5. See Hill Tnistees, 49, 214, 229; the intention of the testator or the Perry Trusts, §§ 1-72. nature of the gift requires it. But 6. Hill Trustees, 61; Perry Trusts, the usual and preferable sense of the §§ 90-93; Lewin Trusts, 66. term describes a fiduciary estate or The words " in trust " in a will technical trust. King v. Mitchell, 8 may be construed to create a use if Pet. 326. 815 § G09 LAW OF WILLS. [PART VI. a trust and designate the trustee or trustees.^ Kot that the trust necessarily fails because no trustee is named, any more than a will which names no executor ; one may appoint the same persons to be both executors and trustees under his will, or he may appoint dif- ferent ones ; but if the will imports a trust, some trustee or trustees should hold the fund and carry out the particular purpose. The advantage of this is obvious ; the testator's intentions, if the court approve the selection, will be carried out by those of his own choice; and, to speak more generally, not only does a legal title support various expectant and contingent or uncertain interests held in suspense, and conditions or restraints upon the dominion of property, which otherwise might fail, but the whole purpose of one's will is executed by some third party who holds the scales be- tween present aud future beneficiaries and all contending parties in interest. § e09. The Same Subject. Two questions are of importance respecting the nature and quality of the estate taken by trustees under a will: (1) What is the quantum of estate and interest, beneficial as well as legal, vested in them for the active purposes (if any) of the trusts reposed in them; (2) What becomes of the legal estate (if any) remaining after the active purposes of the trusts are satisfied ; whether it re- mains in the trustees or passes from them to the cestuis que trust; in other words, whether the estates of persons beneficially inter- ested are equitable or legal.^ Some artificial distinctions have here been taken in devises of land out of respect to the early Statute of Uses, which preceded the Statute of Wills. But the modem i-ule, 7. In the simple devise of a dwell- as " trust " or " trustee " are not in- ing-house to one's widow for life and dispensable in a will. Hughes v. Fitz- over in foe to the children, wills fre- gerald, 60 A. 694, 78 Conn. 4; 87 S. quently declare no trust. But where W. 590, 113 Mo. App. 444. Cf. Wal- tlic gift is more complex as to subject ker v. Hill, 60 A. 1017, 73 N. H. 254. or objects, tni3teo.s to hold the fund 8. Hawkins Wills, 140; 2 Jarm. arc desirable. Technical Avords such Wills, 291 et seq. 816 CHAP. IV.] MISCELLAIN^OUS PROVISIONS COIS'SIDERED. § 609 which is aided in England by the Statute of Victoria and in this country by local legislation, inclines to vest in trustees a legal es- tate sufficient for the execution of the trust as an incident to the trust in all cases; at the same time limiting that legal estate to what may be requisite for a complete execution of the tnist.' Legislation in our several States tends to simplify the adminisr tration of testamentary trusts by bringing such trustees under the immediate supervision of the probate court, instead of leaving all to the more indefinite direction of ch-ancery. The same tribunal which authenticates the will and issues letters testamentary to the executor appoints or confirms the appointment of the will by grant- ing letters of trusteeship under its seal in like manner. By the time the decedent's estate is suflSciently advanced in settlement, the trustee named in the will presents a suitable petition, upon the hearing of which the court grants the letters at discretion ; and so, too, wherever a vacancy exists by reason of declination or other- wise. Before his credentials issue he must file a bond with suffi- cient surety approved by the court, unless the will has requested otherwise; and his letters may be revoked on good cause and some one else appointed, the court regarding the security and interests of the beneficiaries in all cases. The executor transfers the trust fund to the trustee thus officially vested with authority to receive it, crediting himself in his accounts accordingly and closing the accounts when his functions are fully performed ; and the trustee, returning his own inventory and regular accounts from time to time, carries on the bookkeeping of the estate, or rather of the fund under his own direction, as matter of public record, and under the supervision of the court of probate and of the appellate tribunal 9. See this subject discussed at due Wills, 140-158; Doe v. Nichols, 1 B. length by general writers on the law & C. 336; Blagrave v. Blagrave, 4 Ex. of trusts, Perry and Lewin more par- 550; 11 Ad. & El. 188; Barker v. ticularly. See, also, Young v. Bradley, Greenwood, 4 M. & W. 421; 2 Jarm. 101 U. S. 782, 25 L. Ed. 1044; Stat. Wills, 289-323, Bigelow's note and 1 Vict. c. 26, §§ 30, 31; Hawkins numerous cases cited. 62 817 § GIO LAW OF WILLS. [PAKT VI. which exercises prohate and equity jurisdiction, until the trust is completely discharged.^ § 610. Trusts which are Invalid or liable to be set aside, etc. Trust provisions in a will, in order to stand, must be not only consonant with public policy, out of so clear and definite a natui^e that the court may, in the exercise of its ordinary judicial func- tions, render them effective.^ Various trusts which a testator may have attempted to create are pronounced invalid or liable to be set aside. Thus, where a will undertakes to make a person trustee lor his own benefit during his life the trust is void ; for, in order to constitute a valid trust, a trustee, the beneficiary and property, are three distinct essentials, and without each of the three a trust can- not exist.^ The same person cannot be at the same time trustee and beneficiary of the same identical interest.^ Wherever the will gives a legacy in some secret trust which is contrary to public policy, equity treats the gift as void and enforces a trust as for the benefit of next of kin or residuary beneficiaries, not permitting the legatees named to enjoy it absolutely;^ and where the will creates a trust without a beneficiary the trustee holds for the benefit of heirs or distributees of the testator.^ Moreover, a court of equity will order trust property under ai will to be conveyed by the trustee to the beneficiary, where there was what is called a dry trust, or where the purposes of the trust 1. See statutes of the several 322. Cf. Boning's Estate, 63 A. 296, States, which enter fully into the de- 214 Penn. 19. The discretionary power tails of such probate jurisdiction. given to a trustee passes to his suc- 2. See McHugh v. McCole, 97 Wis. cesser in the trust. Shattuck v. 166, 65 Am. St. Rep. 106, 72 N,. W. Stickney, 97 N. E. 774, 211 Mass. 631. 327. 3. Rose V. Hatch, 125 N. Y. 427, 26 5. Fairchild v. Edson, 154 N. Y. N. E. 467; 115 N. Y. 346, 357, 22 N. 199, 61 Am. St. Rep. 609, 48 N. E. E. 150. Cf. § 608. 541. 4. A trustee may be empowered by 6. Sims v. Sims, 94 Va. 580, 64 Am. will to designat*' his own successor. St. Rep. 772, 27 S- E. 436. Orr v. Yatee, 70 N. E. 731, 209 111. 818 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 611 have been accomplished, or where no good reason appears why the trust should continue and all the persons interested in it are sui juris and desire the trust terminated. Thus, as instance of a dry trust, an unqualified gift of the use, income, and improvement of jyersonal property, vests, as we have seen, an absolute interest in the beneficiary, unless the will shows a different intention ; and especially does this hold true where there is no gift over of tlie capital.^ Should the testator, therefore, have directed a trust for paying such income to his beneficiary, the latter, if of age and sni juris, may have that trust set aside in equity as a dry one and enjoy the property absolutely, unless the court is convinced that good reason exists to the contrary.^ § 611. Executors holding in Trust, etc. Executors may be authorized to fulfil some trust under the will. But a general devise or bequest to executors in trust vests no estate in them except for such of the declared purposes as require that the title be vested in them.* A trust confided in the executors may be presumed an enforceable one against them and not a mere dis- cretionary power.^ And if the purposes of the conditional gift cannot be carried out, the gift, not being a personal one, is void.^ All executors, trustees and other fiduciaries are held to a cer- 7. Supra, § 507, and cases cited. ownership of the trust fund, Ilalsted 8. lb.; Perry Trusts. § 920; 149 Re, 137 N. Y. S. 433. Mass. 22, 14 Am. St. Rep. 393, 3 L. 9. Everitt v. Everitt, 29 N. Y. 39; R. A. 370, 20 N. E. 454. See Wilce v. Tompkins Re, 154 N. Y. 634, 49 N. Van Anden, 94 N. E. 42, 248 111. 358, E. 135; 48 N. E. 561, 49 N. E. 98 N. E. 21; 253 111. 602 (postpone- 320; 75 N. E. 149, 189 Mass. 176; ment refused) ; Carter v. Long, 81 S. 154 N. Y. 573. Cf. Maniere v. Wel- W. 162, 181 Mo. 701; Raymond v. ling, 78 A. 507, 32 R. I. 106 (power Butts, 95 N. E. 387, 1154, 84 Ohio in trust given to executors held no St. 51, 491. The equitable owner of a trusteeship) ; 86 A. 442, 81 N. J. Eq. fee of trust property may devise the 520 (honest exercise of just discre- property free of a trust which by the tion usually final). terms of its creation ceases at the 1. Colton v Colton, 127 U. S. 300, death of the owner. 80 A. 753, 108 32 L. Ed. 138 ; Ingraham v. Ingraham, M«. 307. See, also, as to ultimate 169 111. 432. 2. IngcTsoH's Will, 131 N. Y. 573. 819 § 611 LAW OF WILLS. [pART VI. tain degree of care and prudence in the exercise of their duties, and moreover, must act honestly and in good faith.^ And since a valid trust created by a will is its own law trustees cannot modify at discretion even to effect better results, and certainly not so to make a fiduciary benefit their personal one.* 3. Even where a trustee, under the Smith v. Thompson, (1896) 1 Ch. 71. terms of a will, may invest in such 4. Upham v. Plankinton, 140 N. W. eecurities "as he shall see fit," this 5, 152 Wis. 275; Davison v. Wyman, means " as he shaU honestly see fit." 100 N. E. 1105, 214 Mass. 192. 820 APPENDIX. A. LEADING WILLS ACTS ENGLISH AND AMERICAN.^ I. ENGLISH STATUTE 1 VICT. c. 26. An Act for the amendment of the Laws uAth respect to Wills, [3d July, 1837.] Be it enacted, that the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a difiFerent meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows: (that is to say ) the word " will " shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an act passed in the twelfth year of the reign of King Charles the Second, intituled An act for taking away the court of ivards and liveries and tenures, in capite and hy knights service, and pur- veyance, and for settling a revenue upon his majesty in lieu thereof, or by virtue of an act passed in the parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled An act for taking away the court of wards and liveries and tenures, in capite and by knights service, and to any other testamentary disposition; and the words " real estate " shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, in- corporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words "per- sonal estate " shall extend to leaseliold estates and other chattels real, and also to moneys, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or admin- istrator, and to any share or interest therein ; and every word importing the 1 The Leading Wills Acts here wills legislation of one or another of given are those of England and of the four States here selected, the four of the United States, viz.: leading colonies before American m- Massachusetts, New York, Pennsyl- dependence was declared, ea«h with vania. and Virginia. Tlie English its own peculiar traits and policy, statute of 1837 marks a new epoch in has most influenced the enactments of the testamentary jurisprudence of the the later settled States and Tern- mother country. In this country, the tories. 821 APPENDIX. singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. II. And be it further enacted, that an act passed in the thirty-second year of the reign of King Henry the Eighth, intituled The act of tvills, wards, and primer seisins, ivherehy a man may deinse two parts of his land; and also an act passed in the thirty-fourth and thirty-fifth years of the reign of the said King Henry the Eighth, intituled The bill concerning the explanation of wills; and also an act passed in the parliament of Ireland, in the tenth year of the reign of King Charles the First, intituled An act how lands, tenements, etc., may be disposed by will or otherwise and concerning wards and primer seisins; and also so much of an act passed in the twenty-ninth year of the reign of King Charles the Second, intituled An act for prevention of frauds and per- juries, and of an act passed in the pailiament of Ireland in the seventh year of the reign of King William the Third, intituled An act for prevention of frauds and perjuries, as relates to devises or bequests of lands or tenements, or to the revocation or alteration of any devise in writing of any lands, tene- ments, or hereditaments, or any clause thereof, or to the devise of any estate pur autre vie, or to any such estates being assets, or to nuncupative wills, or to the repeal, altering, or changing of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein : and also so much of an act passed in the fourth and fifth years of the reign of Queen Anne, intituled An act for the amendment of the law and the better advancement of justice, and of an act passed in the parliament of Ireland in the sixth year of the reign of Queen Anne, intituled An act for the amendment of the law and the better advancement of justice, as relates to witnesses to nuncupative wills; and also so much of an act passed in the fourteenth year of the reign of King George the Second, intituled An act to amend the law concerning common recoveries, and to explain and amend an act made in the twenty-ninth year of the reign of King Charles the Second, intituled "An act for prevention of frauds and perjuries," as relates to estates pur autre vie; and also an act passed in the twenty-fifth year of the reign of King George the Second, intituled An act for avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning real estates in that part of Great Britain called England, and in his majesty's colonies and plantations in America, except so far as relates to his majesty's colonies and plantations in America ; and also an act passed in the parliament of Ireland in the same twenty-fifth year of the reign of King George the Sec(jnd, intituled An act for the avoiding and putting an end to certain doubts and (fitestions relating to the attestations of wills and codicils concerning real estates; and also an act passed in the fifty-fifth year of the reign of King George tlie Third, intituled An act to remove certain difficulties in the dis- position of copyhold estates by will, shall be and the same are hereby repealed, except so far as the same acts or any of them respectivelj' relate to any wills or estates ptir autre vie, to which this act does not extend. III. And bo it further enacted, tliat it shall be lawful for every person to 822 LEADING WILLS ACTS. devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so de- vised, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that tlie power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise, to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in tliis act, if this act had not been made; and also to estates ptir autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, custom- ary freehold, tenant right, customary or copjiiold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory, or other future interests in any real or per- sonal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which tlie same respectively were created or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry ; and also to such of the same estates, interests, and rights respectively, and other real and personal estate as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subse- quently to the execution of his will. IV.z Provided, always, and be it further enacted, that where any real estate of the nature of customary freehold or tenant riglit, or customary or copyhold, might by the custom of the manor of which the same is holden, have been surrendered to tlie use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will, shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to tlie use of the will, or in respect of presenting, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator: Provided also, that where the testator was entitled to have been admitted to such real estate, and might if he had been admitted thereto, have surrendered the same to the use of his will, and sliall not have been 2. See 4 & 5 Vict. c. 35, §§ 88-90. 823 APPENDIX. admitted thereto, no person entitled or claiming to be entitled to such estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of present- ing, registering, or enrolling such surrender, had the testator been duly ad- mitted to such real estate, and afterwards surrendered the same to the use of his will; all which stamp duties, fees, fine, or sums of money due as afore- said shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid. V. And be it further enacted, that when any real estate of the nature of customary freehold or tenant right, or customary or copyhold, shall be dis- posed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will; and when any such real estate could not have been disposed of by will if this act had not been made, the same fine, heriot, dues, duties, and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall as against the devisee of such estate have the same remedy for recovery and enforcing such fine, heriot, dues, duties, and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent. VI. And be it further enacted, that if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or adminis- trator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. VII. And be it further enacted, that no will made by any person under the age of twenty-one years shall be valid. VIII. Provided also, and be it further enacted, that no will made by anv 824 LEAPING WILLS ACTS. married woman shall be valid, except such a will as might have been made- by a married woman before the passing of this act. IX. And be it further enacted, that no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be nceessary. X. And be it further enacted, that no appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner herein- before required ; and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been ex- pressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. XI. Provided always, and be it further enacted, that any soldier being in actual military service, or any mariner, or seaman being at sea, may dispose of his personal estate as he might have done before the making of this act. XII. And be it further enacted, that this act shall not prejudice or aflfect any of the provisions contained in an act passed in the eleventh year of the reign of his majesty King George the Fourth, and the first year of the reign of his late majesty King William the Fourth, intituled An act to amend and consolidate the laics relating to the pay of the royal navy, respecting the wills of petty officers and seamen in the royal navy, and non-commissioned officers of marines, and marines, so far as relates to their wages, pay, prize money, bounty money, and allowances, or other moneys payable in respect to services in her majesty's navy. XIII. And be it further enacted, that every will executed in manner herein- before required shall be valid without any other publication thereof. XIV. And be it further enacted, that if any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. XV. And be it further enacted, that if any person shall attest the execution of anv will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such parson or any person, claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding. 825 APPEITDIX. such devise, legacy, estate, interest, gift, or appointment, mentioned in such will. XVI. And be it further enacted, that in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or in- validity thereof. XVII. And be it further enacted, that no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof. XVIII. And be it further enacted, that every will made by a man or Avoman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or tlie person entitled as his or her next of kin, under the statute of distributions). XIX. And be it further enacted, that no will shall be revoked by any pre- sumption of an intention on the ground of an alteration in circumstances. XX. And be it further enacted, that no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with tlie intention of revoking the same. XXI. And be it further enacted, that no obliteration, interlineation, or other alteration made in any will, after the execution thereof, shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to sucli alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. XXII. And be it further enacted, that no will or codicil or any part thereof, which shall be in any manner revoked, sliall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, sliall be revived, such revival shall not extend to so much thereof as shall have been revokrd be- fore the revocation of the whole thereof, unless an intention to the contrary shall be shown. XXIII. .4ind be it further enacted, that no conveyance or other act made or 826 LEADING WILLS ACTS. done subsequently to the execution of a will of or relating to any real or per- sonal estate therein comprised, except an act by whicli such will shall be re- voked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. XXIV. And be it further enacted, that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. XXV. And be it further enacted, that, unless a contrary intention shnll ap pear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will. XXVI. And be it further enacted, that a devise of the land of the testator, or of the land of the testator in any place or in the occupation of anj' person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold, or leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as free- hold estates, unless a contrary intention shall appear by the will. XXVII. And be it further enacted, that a general devise of the real estate of the testator, or of the real estate of the testator in any place or in the oc- cupation of any person mentioned in his will, or otherwise described in a gen- eral manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be con- strued to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execu- tion of such power, unless a contrary intention shall appear by the will. XXVIII. And be it further enacted, that where any real estate shall be de- vised to any person without any words of limitation, such devise shall be con- strued to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will. XXIX. And be it further enacted, that in any devise or bequest of real or personal estate the words " die without issue," or " die without leaving issue," 827 APPENDIX. or " hare no issue," or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise: Provided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. XXX. And be it further enacted, that where any real estate (other than or not being a presentation to a church ) shall be devised to any trustee or execu- tor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. XXXI. And be it further enacted, that where any real estate shall be de- vised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. XXXII. And be it further enacted, that where any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happrned immediately after the death of the testator, unless a contrary intention shall appear by the will. XXXIII. And be it further enacted, that where any person being a child or other issue of the testator to whom any real or personal estate shall be de- vised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. XXXIV. And be it further enacted, that this act shall not extend to any will made before the first day of January, one thousand eiglit liundred and thirty- eight, and that every will re-executed or republished, or revived by any codicil, 828 LEADING WILLS ACTS. shall for the purposes of this act be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight. XXXV. And be it further enacted, that this act shall not extend to Scot- land. XXXVI. And be it further enacted, that this act may be amended, altered, or repealed by any act or acts to be passed in this present session of parlia- ment. II. MASSACHUSETTS WILLS ACT.3 § 1. Every person of full age and sound mind may by his last will in writ- ing, signed by him or by some person in his presence and by his express direc- tion, and attested and subscribed in his presence by three or more competent witnesses, dispose of his estate, real and personal, excepting an estate tail, and excepting also as is provided in chapters 123 and 124 [i. e., except as to homesteads and certain rights of a husband in his deceased wife's real estate, and of a wife in her deceased husband's real estate] and in § 6 of chapter 147 [which permits a married woman to make a will, but restrains her from de- priving her husband of his tenancy by the curtesy, or of more than one-half of her personal estate without his written consent]. § 2. If a witness to a will is competent at the time of his attestation, his subsequent incompetency shall not prevent the probate and allowance of such will, nor shall a mere charge on the lands of the testator for the payment of ihis debts prevent his creditors from being competent witnesses to his will. § 3. A beneficial devise or legacy made in a will to a person who is a sub- scribing witness thereto, or to the husband or wife of such a person, shall be void unless there are three other competent subscribing witnesses to such will. § 4. A will made and executed in conformity with the law existing at the time of its execution shall be equally effectual as if made pursuant to the pro- visions of this chapter. § 5. A will made out of the commonwealth, and which is valid according to the laws of the state or country where it was made, may be proved and allowed in this commonwealth, and shall thereupon have the same eff'ect that it would ihave had if executed according to the laws of this commonwealth. § 6. A soldier in actual military service or a mariner at sea may dispose of his personal estate by a nuncupative will. § 7. No will, except such as is mentioned in this chapter, shall be effectual to pass any estate, real or personal, or to change or in any way affect the same ; and no will shall take effect until it has been duly proved and allowed in the probate court. Such probate shall be conclusive as to the due execution of the will. 3. See Mass. Public Statutes (1882), c. 127. 829 APPENDIX. § 8. No will shall be revoked unless by the burning, tearing, cancplling. or oblit-erating the same, with the intention of revoking it, by the testator him- self or by some person in his presence and by his direction; or by some other writing signed, attested and subscribed in the. same manner that is required in the case of a will; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the conditions or cir- cumstances of the testator. [The word "will" shall include codicils as used above. See Mass, Pub. Stats. (1882) c. 3, § 3, pi. 24.] III. NEW YORK WILLS ACT.4 § 1. All persons, except idiots, persons of unsound mind, and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions of this title. § 2. Every estate and interest in real property descendible to heirs, may be Bo devised. § 3. Such devise may be made to every person capable by law of holding real estate; but no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise. [§ 4. Devises to aliens.] [§ 5. Will of real estate denoting intent to devise all one's real property, shall be construed to pass all he is entitled to devise at the time of his death.] [§§ 6-20 repealed.] § 21. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory,, and no others, may give and bequeath his or her personal estate, by will in writing. § 22. No nuncupative or unwritten will, bequeathing personal estate, shall be vali4, unless made by a soldier while in actual military service, or by a mariner while at sea. § 40. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses. 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. 4. Taken from " New York Revised Statutes," Throop's 7th edition, 1882, Vol. III. Pt. 2, c. 6. 830 LEAniNG WILLS ACTS. § 41. The witnesspB in any will shall write opposite to their names their rt^speetive places of residence; and every person who shall sign the testator's name to any will by his direction shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who shall sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty afore- said, be excused or incapacitated on that account, from testifying respecting the execution of such will. § 42. No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise tiian by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, can- celled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall b? proved by at least two witnesses. [(§ 43.) The excepted cases which follow provide for the revocation of a will, which disposes of the whole estate, by subsequent marriage of the testa- tor, and the birth of issue, where wife or the issue shall be living at the testa- tor's death, and is unprovided for, unless so mentioned in the will as to show an intention to make no provision. (§ 44.) Will of unmarried woman revoked by her subsequent marriage. (§ 45.) Bond, etc, to convey property, devised or bequeathed, not a revoca- tion. (§ 46.) Charge or incumbrance upon real or personal estate not a revoca- tion. (§§ 47,48.) Conveyance, settlement, etc., when to be deemed a revocation. (§ 49.) After-born child, if unprovided for, to have portion of estate. (§ 50.) Devisee or legatee may witness will, but devise to him void. (§ 51.) Except that share of estate is saved to such witness in certain cases. (§ 52.) Devises or bequests in certain cases not to lapse. (§ 53.) Cancelling of second will not to revive first, except, etc. (§ 69.) Provision as to act going into effect concerning revocation; and (§ 70) prior wills not aflTected. (§ 71.) "Wills" in this chapter to include "codicils."] IV. PENNSYLVANIA WILLS ACTS.5 § 1. Every person of sound mind [married women excepted] may dispose by will of his or her real estate, whether such estate be held in fee-simple, or for 5. Brightly's Purdon's Digest (1700-1883), Vol II. "Wills." 831 APPENDIX. the life or lives of any other person or persons, and whether in severalty, joint- tenancy, or common, and also of his or her personal estate. § 3. Any married woman may dispose, by her last will and testament, of her separate property, real personal, or mixed, whether the same accrue to her before or during coverture: Provided, That the said last will and testament be executed in the presence of two or more witnesses, neither of whom shall bo her husband. § 3. And provided also, That no will shall be eflfectual, unless the testator were, at the time of making the same, of the age of twenty-one years or up- wards, at which age the testator may dispose of real as well as personal or mixed property, if in other respects competent to make a will. [§ 4 authorizes the appointment of testamentary guardian by will.] [§ 5 permits the bequest of emblements and rents by tenant for life.] § 6. Every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction; and in all cases, shall be proved by the oaths or affirmations of two or more competent witnesses; otherwise such will shall be of no effect. § 7. Every last will and testament heretofore made or hereafter to bs made, excepting such as may have been finally adjudicated prior to the passage of this act, to which the testator's name is subscribed, by his direction and au- thority, or to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects: Provided, the other requisites, under existing laws, are complied with. § 8. Provided, That personal estate may be bequeathed by a nuncupative will, under the following restrictions : I. Such will shall in all cases be made during the last sickness of the testa- tor and in the house of his habitation or dwelling, or where he has resided for the space of ten days or more, next before the making of such will; except where such person shall be surprised by sickness, being from his own house, and shall die before returning thereto. II. Where the sum or value bequeathed shall exceed one hundred dollars, it shall be proved that the testator, at the time of pronouncing the bequest, did bid the persons present, or some of them, to bear witness that such was his will or to that effect; and in all cases, the foregoing requisites shall be proved by two or more witnesses, who were present at the making of such will. § 9. Provided, That notwithstanding such act, any mariner being at sea, or any soldier being in actual military sei-vice, may dispose of his movables, wages, and personal estate, as he miglit have done before the making of this act. [§§ 10-15 relate to points of testamentary construction.] § 16. No will in writing concerning any real estate shall be repealed, nor Bliall any devise or direction therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the same manner as is hereinbefore provided, or by burning, can- 832 LEADING WILLS ACTS. celling, or obliterating or dostroying the same by the testator himself, or by some one in his presence, and by his express direction. § 17. No will in writing concerning any personal estate shall be repealed, nor shall any bequest or direction therein be altered, otherwise than is herein- before provided in the case of real estate, except by a nuncupative will, made under the circumstances aforesaid, and also committed to writing in the life- time of the testator, and after the writing thereof, read to or by him, and al- lowed by him, and proved to be so done by two or more witnesses. [§§ 18-20 concern the eflfect of subsequent marriage or birth of children as operating to revoke, etc.] [§21 restrains the marriage woman's right of testamentary disposition so far that her surviving husband may elect instead to take under the intestate laws. § 22 forbids the bequest to charity within one month of the donor's decease. §§ 23-26 relate to matters of construction, the execution of testamentary powers, etc.] V. VIRGINIA WILLS ACT.6 [§ 1 construes the word " will " as applying to codicil, testamentary appoint- ment, etc.] § 2. Every person not prohibited by the following section may, by will, dispose of any estate to which he shall be entitled at his death, and which, if not so disposed of, would devolve upon his heirs, personal representative, or next of kin. The power hereby given shall extend to any estate, right, or interest to which the testator may be entitled at his death, notwithstanding he may become so entitled subsequently to the execution of the will. § 3. No person of unsound mind, or under the age of twenty-one years, shall be capable of making a will, except that minors eighteen years of age or upwards may, by will, dispose of personal estate; nor shall a married woman be capable of making a will, except for the disposition of her separate estate, or in the exercise of a power of appointment. § 4. No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and more- over, unless it be wholly written by the testator, the signature shall be made or the will asknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be neces- sary. § 5. No appointment made by will, in exercise of any power, shall be valid unless the same be so executed that it would be valid for the disposition of the property to which the power applies, if it belonged to the testator; and every will so executed, except the will of a married woman, shall be a valid 6. Code of Virginia (1873), c. 118. 53 833 APPENDIX. execution of a power of appointment by will, notwithstanding the instrunient creating the power expressly require that a will made in execution of such power shall be executed with some additional or other form of execution or solemnity. § 6. Notwithstanding the two next preceding sections, a soldier being in actual military service, or a mariner or seaman being at sea, may dispose of his personal estate as he might heretofore have done; and the will of a person domiciled out of this state at the time of his death, shall be valid as to personal property in this state, if executed according to the law of the state or country in which he was so domiciled. § 7. Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the estate thereby appointed would not, in default of such appointment, pass to his or her heir, personal representative, or next of kin. § 8. No will or codicil, or any part thereof, shall be revoked, unless under the preceding section, or by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, can- celling, or destroying the same, or the signature thereto, witli the intent to revoke. § 9. No will or codicil, or any part thereof, which sliall be in any manner revoked, shall, after being revoked, be revived otherwise than by the re-execu- tion thereof, or by a codicil executed in manner hereinbefore required, and then only to the extent to which an intention to revive the same is shown. § 10. No conveyance or other act subsequent to the execution of a will shall,, unless it be an act by which the will is revoked as aforesaid, prevent its oper- ation, with respect to such interest in the estate comprised in the will, as the testator may have power to dispose of by will at the time of his death. [§§ 11-16 establish rules of testamentary construction in certain cases. §§ 17, 18 provide for pretermitted children.] § 19. If a will be attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved, such person shall be deemed a competent witness, but such devise or bequest shall be void, except that, if such witness would be entitled to any share of the estate of the testator, in case the will were not established, so much of his share shall be saved to him as shall not exceed the value of what is so devised or bequeathed. § 20. If a will charging any estate with debts be attested by a creditor, or the wife or husband of a creditor whose debt is so charged, such creditor shall notwithstanding be admitted a witness for or against the will. § 21. No person shall, on account of his being an executor of a will, be incompetent as a witness for or against the will. [The remaining sections of this chapter relate to the date when a will shall operate and to probate proceedings.] 834 FORMS OF WILLS. B. FORMS OF WILLS. No. 1. A solemn form of mil, once common, ichere a m,arried man of propertxf provided for his family. In the name of God, Amen. I, A B, of, etc., being in good bodily health,^ and of sound and disposing mind and memory, calling to mind the frailty and uncertainty of human life, and being desirous of settling my worldly affairs, and directing how the estates with which it has pleased God to bless me shall be disposed of after my decease, wliile I have strength and capacity so to do, do make and publish this my last will and testament, hereby revoking and making- null and void all other last wills and testaments by me heretofore made. And, first, I commend my immortal being to Him wlio gave it, and my body to the earth, to be buried with little expense or ostentation, by my executors hereinafter named. And as to my worldly estate, and all the property, real, personal, or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath, and dispose thereof in the manner fol- lowing, to wit: — Imprimis. My will is, that all my just debts and funeral charges shall, by my executors hereinafter named, be paid out of my estate, as soon after my decease as shall by them be found convenient.^ Item. I give, devise, and bequeath to my beloved wife, C B, all my household furniture, and my library in my mansion or dwelling-house, my pair of horses, coach, and chaise, and their harnesses; and also fifteen thousand dollars in money, to be paid to her by my executors hereinafter named, within six months after my decease; to have and to hold the same to her, and her executors, administrators, and assigns forever. I also give to her the use, improvement, and income of my dwelling-house, and its appurtenances, sit- uated in , my warehouse, situated in , and my wharf situated in , and called Wharf; to have and to hold the same to her for and during her natural life. ' Item. I give and bequeath to my honored mother, B, two thousand dollars in money, to be paid to her by my executors hereinafter named, within six ' months after my decease; to be for the sole use of herself, her heirs, executors, administrators, and assigns. Item. I give and bequeath to my daughter, D B, my fifty shares of the stock of the president, directors, and company of the Bank, which are of the par value of five thousand dollars, my fifty shares in the stock of the Insurance Company, which are of the par value of five thousand dollars, and my ten shares of the stock of the Manufacturing Company, which are 7. If the testator is in failing posing mind, etc." health, he should prefer to say some- 8. This direction is, of course, thing like this : " being in sufficiently merely formal, but many testators good health and of sound and dis- still prefer its insertion as an aid to posing mind," etc.; or. " l>eing in de- actual intent, or with some special dining health, but of sound and dis- application indicated. 835 APPENDIX. of the par value of ten thousand dollars; to have and to hold the same, to- gether with all the profit and income thereof, to her the said D B, her heirs, executors, administrators, and assigns, to her and their use and benefit forever. Item. I give, devise, and bequeath to my son, E B, the reversion or remainder of my dwelling or mansion house, situated in , and its appurtenances, and all profit, income, and advantage that may result therefrom, from and after the decease of my beloved wife, C B; to have and to hold the same to him the said E B, his heirs and assigns, from and after the decease of my said wife, to his and their use and behoof forever. Item. I give, devise, and bequeath to my son, F B, the reversion or remainder of my warehouse, situated in , and its appurtenances, and all the profit, income, and advantage that may result therefrom, from and after the decease of my beloved wife, C B; to have and to hold the same to the said F B, his heirs and assigns, from and after the decease of my said wife, to his and their use and behoof forever. Item. I give, devise, and bequeath to my son, G B, the reversion or remainder of my wharf, situated in , called Wharf, and its appurtenances, and all the profit, income, and advantage that may result therefrom, from and after the decease of my beloved wife, C B; to have and to hold the same to the said G B, his heirs and assigns, from and after the decease of my said wife, to his and their use and behoof forever. Item. All the rest and residue of my estate, real, personal, or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I give, devise, and bequeath, to be equally diveded to and among my said sons, E B, F B, and G B. Lastly. I do nominate and appoint my said sons, E B, F B, and G B, to be the executors of this my last will and testament [and request that each and all of them may be exempt from giving any surety or sureties upon their official bond 9]. In testimony whereof, I, the said A B, have to this my last will and testa- ment, contained on three sheets of paper, and to every sheet thereof, subscribed my name, and to this the last sheet thereof I have here subscribed my name and affixed my seal, this first day of May, in the year of our Lord one thousand nine hundred and fifteen. A B. [l. s.] Signed, sealed, published, and declared by the said A B as and for his last will and testament, in presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses hereto.i U V. W X. Y Z.2 9. It is matter of prudf'nt discre- and the local requirements of legis- tion in the testator to omit or insert lation. See supra, §§ 300-356. In this clause. some States the residence of witnesses 1. The attestation clause may vary should be given, and this is always somewhat, as well as the number of a safe precaution, witnesses, according to circumstances 2. It should be borne in mind that 830 FOEMS OF WILLS. No, 2. Will in simplest form, giving to one absolutely all the testator's real and personal estate. This is the last will and testament of me [testator's name and residence]. I give, devise, and bequeath all the real and persona! estate of every descrip- tion, to which I shall be entitled at the time of my decease, unto [devisee's name and residence], absolutely [; but as to estates vested in me upon trust or by way of mortgage, subject to the trusts and equities affecting the same respectively3]. And I appoint the said [name] sole executor of this my last will, hereby revoking all other testamentary writings. Witness my hand and seal this 15tli day of January, A. D. 1915. Witnesses — A B. [l. s.]4 U V. W X. No. 3. Will intended for the appointment of executors merely, the property to go as in case of the maker's intestacy. I, A B, of, etc., do hereby make this my last will and testament. I appoint my son, C D, and my son-in-law, E F, to be executors of this will, and direct that tliey shall not be required to give sureties upon tlieir bond as such. I dispose of my property and estate in tlie same manner as the same would descend and be distributed by law, if this will had not been made, my purpose being only to appoint executors and exempt them from being required to give sureties upon their bond, but not in any way to change the disposition which the law would otherwise make of my estate. In testimony whereof, I, the said A B, hereunto set my hand and seal, and publish and declare this to be my last will and testament in presence of tiie witnesses named below, on this twentieth day of January, in the year of our Lord one thousand nine hundred and fifteen. A B. [seal.] Signed, sealed, published, and declared by the above-named A B as and for his last will and testament in presence of us, who, in his presence, and in the by the modern rule of England and will is more strongly fortified for its many States two witnesses are probate. enough. But where the will is to 3. This clause is not indispensable, operate in various States where land 4. Even the seal may be omitted, lies, it may often be safer to employ Supra, § 309. And the customary three witnesses; a course, never ob- witness clause, though very desirable, noxious to local law, whereby any is not an essential. Supra, § 346. 837 APPENDIX. presence of each other, and at his request, have hereto subscribed our names as witnesses. U V. W X. Y Z. Xo. 4. A simple form of vjill, which makes the widow one's residuary legatee. Know all men by these presents, that I, A B, of, etc., do make and declare this to be my last will and testament, hereby revoking any and all wills by me at any time heretofore made. I give and bequeath to each of my children, C D, E F, G H ajid I J, the sum of five thousand dollars. I give and bequeath to my daughter K L the sum of ten dollars. All the residue of my estate real and personal of which I shall die seized and possessed, or to which I shall at my decease in any way be entitled, I give, devise, and bequeath to my beloved wife M N, to have and to hold the same to her, her heirs and assigns forever. I nominate and appoint my said wife M N to be the sole executrix of my estate, and direct that she be exempted from giving sureties on her official bond. In witness whereof I hereunto set my hand and seal, and publish and declare this to be my last will, this fourth day of April, in the year of our Lord one thousand nine hundred and fifteen. A B. [SEAL.] Signed, sealed, published, and declared by the said A B as and for his last will and testament, in the presence of us who, in his presence, and at hia request, and in the presence of each other, have subscribed our names as witnesses. U V. W X. Y Z. No. 5. A will which places the residue in trust for the benefit of an unmarried niece during life, and to go at her death to her child, etc., if she has any, otherwise to other relatives of the testator. Be it known that I, A B, of, etc., gentleman, feeling how uncertain life is, and wishing to dispose of my property in a manner different from that which applies to the estate of persons intestate, do now make, publish, and declare this to be my last will and testament, viz: — First: I wish all my just debts and funeral expenses to be promptly paid. Secondly: I give and bequeath unto my brother-in-law, C D, of Worcester, two thousand dollars. Thirdly: I give and bequeath unto my faithful servant, E. F, five hundred dollars as a token of ray esteem for him. Fourthly: I give and bequeath unto the Children's Hospital of New York city, a corporation duly incorporated under the laws of the State of New York, the sum of five thousand dollars. 838 FORMS OF WILLS. Fifthly: I give and bequeath unto G H, of Baltimore, Maryland, in case she be living at the time of my decease, one hundred dollars, as an acknowledg- ment of her kind care of my sister during lier last sickness. Sixthly: I give and bequeath unto my cousin, 1 J, of, etc., my gold watcli, chain, and appurtenances, with my best wishes for the future. Seventhly: All the residue and remainder of my estate, wheresoever and whatsoever it may be, at the time of my decease (including any lapsed legacies) and all rights, claims, and properties, real, personal, or mixed, and whether now held or hereafter obtained by me, I do give, devise, and bequeath unto the said C D, his heirs, executors, administrators, successors, and assigns, to have and to hold the same forever. But nevertheless in trust, and upon tlie uses and trusts and for the purposes following, namely: To be held, managed, and invested, and from time to time, as need be, reinvested by the said C D, trustee, or his successor in said trust, for the benefit and advantage of my only niece, K L, daughter of the said C D, and in such good and productive stocks or mortgages as will produce, if possible, a sure and regular income, the whole net interest or income of which fund is to be paid over to the said K L during her natural life (and as often as once every six months, if desired) upon her own order or receipt, and without being subject in any degree to the order, intervention, or control of any husband she may have, or of any creditor of her or her husband aforesaid; my object being to secure to her during her natural life, the use and enjoyment of all the income of said property (wliich is to be invested productively) beyond the control of her said husband or of any such creditor; and upon the decease of the said K L, the said principal trust fund and all earnings or accumulations thereon then remaining unclaimed by her in the hands of said trustee or of his successor in said trust, after deducting the expenses incident to the trust, is to be paid over and distributed to tlie issue of her body then living, if any (the issue, if any, of her children to take the same share that their deceased parent would have taken if so living by right of representation), for their use and benefit forever, share and share alike. But in case the said K L shall die without lawful issue or direct heirs as aforesaid claiming through the said K L, tlien and in such case the whole of said principal trust fund and the net earnings remaining shall be paid over and belong to the said C D, if then living, or in case of liis death, to his lawful heirs, for his or their own proper use and benefit forever. Eighthly: I do hereby fully autliorize and empower the trustee above named, or any successor in said trust, to sell and dispose of any property real or personal that I may have at the time of my decease, and to make good and valid instruments of transfer thereof or any part thereof or any rights therein for the purposes aforesaid (and no purchaser shall be bound to see to the application of the purchase-money or consideration paid therefor) and also to cliange tlie investments from time to time and as often as the said trustee for the time being may think proper for the end and purposes above mentioned. And in case of the death, refusal or inability of the said C D to act as said trustee, the Judge of Probate for the county or place where this will may be proved may appoint some other person to act as trustee as afore- 839 APPENDIX. said, and such new trustee, so to be appointed, is to have all and the same powers and to perform the same duties as the trustee above mentioned. My desire being to have the property prudently and securely managed rather than hazarded in what may promise great gains. And I hereby revoke all other wills heretofore made by me. And Lastly: I appoint tlie said C D executor of this will. In testimony whereof, I, the said A B, have hereunto set my hand and seal this ninth day of February, nineteen hundred and fifteen. A B. [L. s.] The foregoing was signed, sealed, published, and declared by said A B to be his last will and testament in our presence, who at his request and in his presence and in the presence of eacli other, have hereunto set our hands as witnesses thereof, the day and year last above written. U V. W X. Y Z. No. 6. Will and codicil of a single woman, who gives the hulk of her estate to personal friends and in charity. I, A B, of, etc., single woman, make this my last will and testament, and revoke all former wills. First: I appoint C D of, etc., executor of this will, and exempt him from giving any bond with surety. I empower my executor and my administrator with the will annexed to sell and convey any land, without the aid of any court, by public or private sale, at discretion, and to execute such deeds as may be convenient and suitable.5 Second: I give to each of the persons hereinafter named ten thousand dollars, to wit: E F, G H, I J, K L, M N, and P, six legacies making sixty tliousand dollars. Third: I give to each of the persons hereinafter named five thousand dollars, to wit: Q R and S T, two legacies making ten thousand dollars. Fourth: I give to the Boston Athenaeum five thousand dollars. Fifth: I give all my household furniture, wearing apparel, jewelry, books, pictures and other effects at my lodgings to E F. Sixth: My private letters and papers which are cliiefly at my lodgings, — meaning hereby all papers not relating to business, — I direct my executor to burn. Seventh: All the residue and remainder of my property and estate, what- soever and wheresoever, I give and devise to the two following corporations, in equal shares: namely, the Young Women's Christian Association of Boston and the Boston Provident Association. 5. A power to executors ( or to their these days for the convenient settle- Burvivors or survivor) to sell real ment of an estate. estate is often highly desirable in 840 SUGGESTIONS FOK -MAKING WILLS. Witness my hand and seal to this my will, the second day of September, in the year one thousand eight hundred and eighty-three. A B. [seal.] Signed, sealed, published, and declared by the above-named A B as and for her last will and testament, in presence of us, who, in her presence, and at her request, and in presence of each other, have hereto set our hands as witnesses. U V. W X. Y Z. No. 7. Codicil annexed to the foregoing will. I, A B, make this codicil to my last will and testament which was dated Sept. 2, 1883. First: I give to M N, in addition to her former legacy, five thousand dollars. Second: I cancel and revoke tlie legacy of five thousand dollars given to S T. Third: I give to G H the portrait of my grandmother, painted by Hunt, whicli is at my lodgings. Fourth: To the Trustees of the Museum of Fine Arts, etc., I give the portrait of my father by Morse. Fifth: In all other respects I confirm my will. Witness my hand and seal this twenty-second day of August, in the year one thousand eight hundred and eighty-six. A B. [seat..] Signed, sealed, published, and declared by the above-named A B as and for a codicil to her last will and testament, in presence of us, who, in her presence, and at her request, and in presence of each other, have hereto set our hands as witnesses. U V. W X. Y Z. C. SUOGBSTIONiS TO PERSOJSFS MAKING THEIR WILLS. 1. Consider at the outset, whether you are disqualified by the law, wholly or partially, from making a will; or to speak, more particularly, whether you are a minor, a married woman, or an alien.6 2. Consider whether, by reason of old age or other infirmity, there is any ground for the imputation that your mind is unsound; and if so, make no will unless you have good reason; and when making one, fortify carefully against litigation, both in your scheme of disposition and the proof you leave behind of your mental capacity at the time of the act and that the will was properly executed." 3. Similar considerations apply where you are of intemperate habits, or lately delirious in a fever, or reputed to be queer or crazy on some subject.s 6. Supra, §§ 31-64. 8. Supra, §§ 121-12S, 143-168. 7. Supra, §§ 165-213. 841 APPENDIX. 4. Consider whether your situation exposes you to the suspicion of being defrauded, coerced, or subject to the undue influence of certain persons; as if, for instance, you should be blind, illiterate, or confined to a sick room and excluded from social intercourse. Here, again, be very careful of the proof that you executed intelligently and of your own free will, and be sure that the instrument is altogether genuine. If your disposition is to benefit some one whose access and opportunity of influencing you is much greater than others having equal natural claims upon your bounty, hedge in the testamentary act all the more carefully with strong and ample proof.9 5. A will entirely in your own handwriting affords the best proof that it is genuine. But take heed, when writing out your own will, that its legal ex- i:)ression is sufficiently clear and exact, else a contest may arise over its mean- ing. One cannot afford to be too secretive. 6. Laymen often err in supposing they can draw wills with more breadth of apprehension and accuracy than a lawyer, and in expressing themselves as though persons in their own trade were to profit by or interpret them. The technical words of the law are better understood and more copiously defined by the courts than those of any mere business pursuit; and both for clearly comprehending the legal effect of your scheme of disposition and for clearly expressing what you comprehend, you should take professional advice. If you purpose an unnatural or complicated disposition of property, involving a considerable estate, it would be very unwise to make the will without con- sulting some competent third person and submitting to him your plans or your draft.i Lawyers themselves have often plunged their own estates into doubtful disputes, by over-confidence in drawing their own wills, without asking for advice and criticism. 7. In these days the safest will is that which deals justly by the natural objects of one's bounty and distributes in a simple manner; attempting little beyond limiting property so as to give the income to some person for life, with capital over on his death,2 if limiting at all. If your estate be a small one and the beneficiaries needy, all the more should you make a simple will and not attempt complex dispositions. 8. Avoid, if possible, precatory words, and uncertainty in gifts, and be careful as to creating conditions, limitations, remainders, etc. Skilful ex- pression and technical knowledge may here prove indispensable.3 Joint and mutual wills, contingent wills, and all such peculiar kinds give rise to grave disputes.'! 9. Take care not to transgress local rules against perpetuities and in re- 9. Supra, §§ 214-251, tion they seek to avoid. Mr. Justice 1. Wills drawn up without legal ad- Story in BrowneU v. De Wolf, 3 Ma- vice, and directing that no lawyer son, 486. should be employed in settling the es- 2. See Forms of Wills, Nos. 1, 5. tate, but that every dispute should be 3. See supra, Part VI. chaps. 2, 4. Hottlod by "throe judicious, lionest 4. Hupra, Part V.; also §§ iL85-291. inon," are likely to invite the litiga- 842 SUGGESTIONS FOR MAKING WILLS. straint of accumulation, nor in other respects to make provisions subversive of good morals and sound policy.5 10. Remember that in various aspects, bearing upon the construction of wills and the right of persons to take under such dispositions, each State has its own legislation. 11. In the description of the property devised or bequeathed, and of the object of the gift (not to add the interest given), be careful and accurate.^ 12. Be explicit and clear of mind as concerns the time when interests im- mediate or expectant shall vest. It is best to keep in view that your will naturally intends to take effect at your death upon your property as it then exists and the objects of bounty, or their relatives, who may then be living. Prefer that interests shall vest at that period or not much later, and tliat the expression of your will correspond.^ 13. The rule of taking per capita or per stirpes is also important. Whether in case your devisee or legatee dies before you, or before his interest vests, you wish his children or other representatives to take his share, is to considered.^ The whole question of lapsing by death is an important one in such gifts. 14. In the last two respects and in general, a testator who limits property should consider to what period ownership shall be referred, and how far and in what sense persons are to participate as survivors. If a gift is made to " children," or to others of a class, it is important to know whether the death of one shall carry his share to the others of that class.9 15. There are some technical words, such as " heirs," " heirs of body," " issue," which should be employed with discrimination, and the more so where real estate is disposed of.i 16. It is useful, and in some cases indispensable, to have trustees, to preserve a fund whose capital is not to be at once distributed, but preceded by tem- porary and successive interests in the property. You had better designate your trust and trustee plainly, just as you would an executor, unless, per- haps, being married, you intend to dispose in favor of your surviving spouse and children, and so give the income for life to such spouse, with reversion to the children; or possibly in some other case, where a parent will be prac- tically a trustee as respects his or her own oflFspring. 17. A will is hardly worth making if you intend to give nothing outside your immediate family, and as among these to fix their proportions strictly by the statutes of descent or distribution. But a will may be useful for naming an executor,2 or you may wish to make only a partial disposition or to execute a power,3 or to empower your executor to sell your real estate. 18. Observe scrupulously the statute requirements when executing your will, as to signature, the presence of witnesses, the method of their attestation, 5. Supra, §§ 21. 22. 601-660. 2. See supra, § 297. As to consti- 6. See Part VI. chap. 2. tuting a testamentary' guardian, see 7. Supra, §§ 562-566. § 294. See also Forms of Wills, No. 8. Supra, §§ 538-543. -> 3. 9. Supra, §§ 529-537. 3. Supra, §§ 298, 299. 1. Supra, Part "VI. chap. 2. 843 APPENDIX. their number, their competency, and the like. Be sure to have witnesses sutEcient for compliance with local law wherever your real estate may be situated. If, from any cause, your free and intelligent consent to the instru- ment is likely to be challenged after your death, be as punctilious and circum- spect as the circumstances permit. Talk with the witnesses and others, and impress upon them your capable condition. Your witnesses should be dis- interested, clear-headed persons, whose testimony will carry favorable weight in support of the will. In some cases it will be prudent to have the instrument read aloud in the presence of others before you sign. Never have a legatee for a witness; select no witness who is likely to stultify himself or yield to bribes; and if there is danger of a contest, do not let those whom disappointed rela- tives will charge with unfairly influencing your disposition be too prominent when the instrument is actually executed.4 19. Permit no alteration of any kind, as a rule, in the instrument after it has been once executed; but if a change be needful, re-execute with care, or execute a new instrument. As for altering or revoking your will more gen- erally, consider the modes permitted by law, and pursue those modes strictly .5 20. Remember that marriage, or at all events marriage and the birth of a child, revokes a will already made; 6 that modern statutes infer a revocation pro tanto, to let in a child born later than the will, for whom no provision is made; ^ that a child to be disinherited should be named; and that a surviving wife (and in some States a surviving husband) may elect against the will of a spouse, to take as the local statute permits.^ 21. As for making a new will or codicil, you should be guided by circum- stances. A last will composed of one instrument with several later amend- ments is inconvenient for various reasons. If your health and situation render it doubtful whether the latest codicil or codicils can be admitted to probate, keep the earlier instrument intact, if you would rather have that take effect than die intestate. But if intestacy is your preference, or if you are undoubt- edly competent and free to make your present will, the better course is to destroy utterly whatever instrument or instruments precede, and make a new will which shall embrace the whole disposition and stand as sufficient by itself. The best and simplest revocation, moreover, is to burn and utterly destroy; for, to keep an old will among your papers, with marks of cancelling not sufficient to obliterate what was written, or alterations in ink or pencil, is to run the risk of having your true intention misunderstood or perverted at the probate.9 22. Keep your will in such custody that it is not likely to be lost, destroyed, or tampered with, but rather to be properly presented at the probate court after your death. In some States provision is made so that one may have his will kept in a sealed envelope at the registry of probate, subject to his own order while he lives, and not to be opened until after his death. The register's receipt is given for such envelope. 4. /S't/pra, §§ .300-356. 7. Supra, §§ 20, 480, 481. 5. ,S'7/pr«, §§ 3S0-427. 8. Supra, § 19. 6. Supra, §§ 424-426. 9. See passim, §§ 380-427. 844 INDEX. (References are to Sections). Sec. ACKNOWLEDGMENT. See Execution 344 AGE, as aflfecting testamentary capacity 130-142 ALIEN, cannot take gift 23 whether capable of making will 34-36 ALIENATION. See Condition 601, 602 ALTERATION, of estate, whether a revocation 427 alteration defined : partial revocation 10, 428 alteration of instrument 10, 429-433 probate with interlineations, etc 434 presumptions and proof 435 disposition altered by codicil 438 how far codicil revokes 437, 438 effect of revoking will or codicil 439 will and codicil compared 440 probate of codicil 440a-448a. ALTERNATIVE WILLS 291 AMBIGUITY. See Evidence 581 APOPLEXY. See Insane Persons 118 ATTESTATION. See Execution 318-356 ATTORNEY, power of 423rt AUTOPSY 192 B. BANKRUPTCY, conditions against 606 BEQUEST. See Construction; Will 3, 513 BLANKS IN A WILL 298a, 584 BLIND, wills of such persons 94-99, 317, 343 BURNING. See Revocation. C. CANCELLING See Revocation. CAPACITY, to take under a will 23-27 See Infants; Insane Persons; Married Women. 845 846 INDEX. CAPACITY — testamentary capacity in general. Sec- what persons may make a will 31 measure of capacity defined 32 whether crime disqualifies 33 whether aliens are capable 34-36 whether sovereign, is c-apable 37 wills of seamen and soldiers 38 incapacity of infants 39-4 4 See Infants. incapacity of married women 45-40 See Married Women. of insane persons 65 et seq. See Insane Persons. of deaf, dumb, and blind persons 94-99 error, fraud, and undue influence 214 eflfect of error in wills 215 correction of errors in probate 216-219 equity jurisdiction to correct mistakes 220 fraud or force vitiates a will 221, 222 equity and probate jurisdiction 223 general considerations as to fraud and deceit 224- fraud, undue influence, etc., vitiate will 225-231 relate to time of execution 232 will need not originate with testator, etc 233 effect of failure of will 234 maxims applied to parent, child, and spouse 235-237 fraud, etc., must have operated; natural will, etc 23S burden of proof as to fraud, undue influence, etc 239, 240 points of evidence considered 241-247 probate where fraud operates 248-251 inspection of instrument by jury 251 mistake as to legal effect of will, etc 80a. CAPITA, PER 538-541 CERTAINTY, gift whether certain or uncertain 591 uncertainty in subject or object 592-594 precatory trusts 595 uncertainty in such gifts 596 general conclusion 597 CHARITY 21, 592a, 59S CHATTELS 508 CHILDREN, unprovided for in will 20, 425, 420 See CoNSTucnoN. described in gift 480, 529-534 illegitinuitt'S, adopted children, etc 481. 534 in estates tail, etc 555 extrinsic proof of gift 585 INDEX. 847 Sec. CLAIRVOYANCE 1C8 CLASS, gift to 529-532 See Construction. CODICIL, as affected by insanity, undue influence, etc 76, 250 papers probated together, etc 280-282 effect in altering a will 7,8, 438-440 probate of 440a, 448a revocation of codicil, etc 43i> comparison with will 440 implied republication 447, 448 requires formal execution 350 use of, to revoke, etc 404-410, 416, 417 See Revocation. in construction 487 COERCION. See Influence. COMMON, interest in devise or bequest 56G CONDITION, wills upon 285-290 precedent or subsequent 598-600 restraints upon alienation, etc 601, 602 restraints upon marriage 603 restraints as to residence, assuming name, maintaining good charac- ter, etc 604 against disputing the will 605 miscellaneous conditions 604 against bankruptcy or insolvency 606 limitation and condition distinguished 607 CONSIDERATION, wills revocable by way of gift 451 wills upon consideration irrevocable 231o, 452 will probated, notwithstanding breach 452a rule of consideration applied to legacy;other instances 453, 453a contract for a certain will enforced 454 joint or mutual wills 62, 455 457 distinctions and incidents of such wills 231a, 458-460 CONSTRUCTION, general rules laid down. precedents of interpretation; deeds and wills 26, 27, 461 scope of rules of testamentary construction 462-464 aided or unaided by extrinsic evidence 465 cardinal rule that intent shall prevail 466, 467 whole will taken together 468, 473 language according to testator's situation 469 technical and familiar words, etc 470-472 later clause construed with earlier 474 848 INDEX. CONSTRUCTION— co«/;n wed. Sec. words in same clause 474a general description limited by particulars 475 predominant idea of will 476 language, how far changed or moulded; punctuation, etc 472. 477 treatment of repugnant parts 478 favor to heir, next of kin, children, etc 479-482 devise without limitation; its effect 483-48.5 when a will takes effect; after acquired property 486 codicil construed with will 487 some effect given to will 488 whether controlled by condition of estate 488a presumption of compliance with law, etc 489 presumption against partial intestacy 490 local law of interpretation 49 1 summary ; Jarman's rules 492 details of testamentary construction. details relating to property considered 493 as to real estate and leaseholds 494 trust estates, and mortgages 495 reversionary interests 496 lands contracted for 497 " land," " tenement," " hereditament " 498 " messuage," '• premises " 499 " house," "mill," etc 500 "* lappurtenances," etc 501 devise of a " farm," " freehold," etc 502 " rents and profits " ; " use and occupation " 503 as to personal property; " mortgages," " securities " 504 " money " or " moneys," " cash," etc 505 " movables " ; " gift of interest or produce " 506, 507 " goods "; " chattels " 508 " effects " ; " possessions " ; " things " 509 "estate"; "property" 510 miscellaneous terms 511, 512 description of gift; devise, bequest, etc SIS' general terms restrained by particulars 514, 515 false description does not vitiate 516 but particulars may qualify 517 repugnant description 518 real estate with the personalty thereon 518a residuary bequest; its effect 519, 520 residuary devise; its effect 521, 522 gift of residue in general 522-524 • execution of power 525, 526 errors of description corrected 527 obji'ot of gift to be considered 523 INDEX. 849 CONSTRVCTIOy^-^ontinued. Sec gift to children, etc., as a class 529-532a " children," " grandchildren " 533, 534 " issue," " descendants," etc 535 collateral relatives 530 surviving spouse 535ffl " relations," " family," etc. . . . . . , 537 " beneficiaries " ... 537a taiving per capita or per stirpes .538-541 " heirs " or " next of kin " in bequests 542, 543, 548 "representatives," "executors," etc 544 heir, in real estate, etc 545-548 devise of lands, etc, in fee 549 " estate," " property," " residue," " remainder " 5.50 heirs; estates tail; Shelley's Case, etc 551-5.53 limitation and purchase 5.53a rule as to " issue," " children," etc ... . 555 estates tail not favored 556 bequests, absolute or for life 557, 558 devise or bequest, absolute or not 550 life estate and remainder 560 executory devise 560 devise or bequest by implication 561 gift whether vested or contingent 562 vested estates defeasible 562a beneficiaries, when ascertained 563 " dying without issue," etc 564 substitution, survivorship, etc 565 interest, whether joint or common 566 interest of husband and wife 566 gifts to servants, strangers, etc 566a extrinsic evidence to aid 567-568 See Evidence. CONTINGENT, wills 285-290 See Condition. CONTRACT 67, 270, 452-454 CORPORATION, whether capable of taking gift 24 COSTS 213a, 492a COVERTURE. See IVIareied Women. CRIME, disqualification considered 23, 33 D. DEAF AND DUMB, wills of such persons 94-99 850 INDEX. Sec. DECLARATIONS. See Evidence 18, 193-195, 243, 244, 317a, 403 DEED, compared with will 270, 461 DELIRIUM, delirium of diseases, etc 114, 121-123 delirium tremens 124-128 dementia distinguished 129 See Insane Pebsons DELUSIONS. See Insane Persons 143-168 DEMENTIA. See Insane Persons 129-142 DESCENDANTS. See Construction 480, 535 DESCRIPTION 494 et seq. See Construction. DESTRUCTION. See Re\ocation. DEVISE. See Construction ; Will 3, 15, 513 executory 560 DISPUTE, of will 605 See Condition. DIVORCE 426a DRUNKENNESS. See Insane Persons 124 DUPLICATE WILLS 399, 411 E. ECCENTRICITY. See Insane Persons 144-153 EFFECTS 509 EPILEPSY 118 EQUITY. See Construction. jurisdiction to correct mistakes 220 questions of fraud and force 223 as to joint or mutual wills 456-460 procedure in construction 492a ERROR, in wills 80a., 162, 163, 214-220 See Capacity. in describing property 527, 550^ ESTATE. See Construction 510, 549 et seq. EVIDENCE, in wills of the insane, etc 95, 99, 110-120, 127 See Insane Persons. to prove capacity and incapacity 169-213 See Capacttt. burden of proof of fraud, undue influence, etc 239-241 character of evidence in such issues 242-247 extrinsic, not to dispute plain tenor 277 of instruments incorporated as a will 282 in conditional or contingent wills 290, 292 INDEX. 851 EVIDENCE— con/inued. Sec. to prove execution 299a. of subscribing witnesses 348 of nuncupative will 377 in case of lost or defaced, etc., will 401-403, 412 to show revocation 423 where will is altered 435 extrinsic, to aid in construction 465 presumptions in construction 462, 463 See CONSTBUCTION. extrinsic to aid construction. general rule stated 567 not to control, contradict, etc 568, 569 not to change rules of construction 570 meaning of words; punctuation, etc 571 extrinsic to resolve a doubt 572 to aid equivocal description 573-575 conclusion as to proof of intent 576 reference to context 577 extrinsic proof not to aid to misconstrue 57H extrinsic proof of fa«ts and circumstances 579, 580 latent and patent ambiguities 581 proof of custom; deciphering, translating 582 misnomer; nickname; identity proved 583 blank in will ; no insertion 584 devise or bequest to children, etc 585 proof of resulting trust, etc 586 language not to be varied 587 general summary as to extrinsic evidence ; 588, 589 Sir James Wigram's propositions 590 EXECUTION, signature and attestation 213a, 255o, 256, 257 whether instrument is testamentary 267-269 what execution signifies 302 signature hy the testator. statute requirement as to signing 300, 301 testator signs or makes mark 303-305 testator signs, or another for liim 306, 307 name affixed by subscribing witness 308 seals usually dispensed with 309 misnomer or discrepancy 310 position of signature 311, 312 signing must have been intended 313 signature for several sheets 314 where will is written by portions 315 upon paper fastened to the will 316 contents noade known to blind or illiterate 317 852 INDEX. EVIDENCE — continued. Sec. testator's understanding an issue 317(X al testation, etc., by witnesses. attestation or subscription in general 318 under modern statutes 319 number of witnesses required 320 signing or acknowledging before witnesses 321-325 publication or declaration of will 326 simultaneous presence of witnesses 327 subscription by testator after witnesses 32*^ request to witnesses to sign 329 attestation and subscription distinguished 330 what is signing or subscription 331-334 position of signature, etc 335-337 " signing " and " subscribing " equivalent 33S whether another may sign 339 subscribing '* in the presence of," etc. ., 340-343 certificate of acknowledgment; magistrate, etc.; other formalities... 344 re-execution when necessary 345 use of attestation clause 346, 347 subscribing witnesses relied upon, etc 348 attestation to sanity, etc 349 competency of witnesses 350-358 execution of oral wills compared 359 et seq. See Nuncupative Will. re-execution of will 442, 443 See Republication. EXECUTOR 50, 297. 354, 544, 583, 611 EXPERT, MEDICAL, ETC 197-213 F. FAMILY 537 " FAKE " WILL 250, 278, 279 FORCE. See Influence. FORGERY 241 FRAUD. See Influence. G. GIFT. See Will 3 causa mortis, and will distinguislied 63, 271 GOODS 508 GUARDIAN, testamentary, whetlior appointed by will 44, 294, 295 of insane 81, 82 H. 1 1 Kill, formerly favored 479-485 in bequests 543 INDEX. 853 HEIR — continued. Sec. in realty, etc 545-548 words of limitation or purchase 551-554 See CoNSTRUcnoN. HOLOGRAPH, will 9, 255 HUSBAND. See Mabriage. I. ILLEGALITY, in wills 21-24 ILLITERATE PERSONS, wills of 317 IMBECILES. See Insane Persons. INFANTS, may take under will .25 reason of incapacity to make will 39 earlier and later rules compared 40-42 modern legislation does not favor 4.T appointment of testamentary guardian 44 INFLUENCE, undue, in wills considered 89, 221 et seq. fraud, force, or undue influence 221-226 undue influence defined; how exerted 227-233 effect upon will 234. 238 maxims applied , 230-238 evidence in such cases 239-247 probate of wills unduly influenced 248-251 subsequent and parol assent insufficient 2516 in issues of revocation 427a INSANE PERSONS, may take under will 25 their incapacity to make a will ; in general. will void; modern tests difficult 65, 66 standard of capacity in contracts compared 67 general standard stated 68, 69 incapacity more than weak capacity 70, 71 test referred to the particular instrument 72 will in extremis proper 73 capacity consistent with insane delusions 74. 75 eflfect as between will and codicils 76 rational and irrational wills 77, 78 manner of executing the will ■. 79 complex and simple estates contrasted 80 will of one under guardianship 81, 82 sound and disposing mind and memory, heatlli, etc 83. 84 classifications of insanity, etc 85-87 courts apply practical tests 88 854 INDEX. INSANE PERSONS— confinwed. Sec. tests of mental capacity 88, 89 each case tested by its own facts 89o incapacity of idiots, imbeciles, the deaf, dumb, and blind, etc. what is idiocy; idiots and imbeciles incapable 90-93 persons born deaf, dumb, and blind 94, 95 persons not so born, but disabled 96-99 general conclusion as to the blind, etc 99 lunacy, and general mental derangcm^ent. mental unsoundness in medium degree 100, 101 illusions, perversions, false judgment 102 expert attempts, etc., to classify insanity 103 common symptoms of insanity 104 will of lunatic, etc., invalid 10.5 restoration, and intermittent insanity 106 lucid intervals 107-109 proof of will made during lucid interval 109-115 doubtful derangement, paralysis, prostration, apoplexy, hysteria, etc 116-118 mental condition nearly contemporaneous with will 119 suicide not conclusive of insanity 120 murder by testator 120 delirium, drunkenness, and dementia. delirium of disease incapacitates 121-12S delirium tremens, drunkenness, opium habit, etc 124-128 dementia distinguished from mania, etc 129 senile dementia, or decay of the aged 130-134 wills of the aged, how regarded 135-142 monomania, and insane delusions. monomania, or partial insanity 143 eccentricity and insane delusions distinguished 144, 145 delusions, sane or insane, in general 147 whimsical or eccentric behavior 149-152 monomania or insane delusion affects capacity 153-156 English cases considered 157, 158 American cases considered 159-161 sudden manife.stations, etc 161a insane delusion distinguislicd from prejudice or error 162-164 rational or irrational, just or unjust will 165 delusions in religion, etc 166, 167 belief in witchcraft, spiritualism, clairvoyance, etc 168 proof of capacity and incapacity. uncontested cases; contested cases; burden of proof 169-174 .subscribing witnesses; their testimony 175-180 to test capacity 181, 182 statement of sanity in attestation clause 183 proponent opens and closes case 184 INDEX. 855 INSANE PERSONS— o-onhnwed. Sec. issue of testamentary capacity; matters of proof 186-102 testator's declarations, etc 193 miscellaneous points as to evidence 194-11)6 character of witnesses who testify 196 opinion of witness as to sanity 197, 198 opinions of non-experts 197, 199-203 expert opinions and testimony 204-213 in issues of revocation 427a INSOLVENCY, condition against 606 INTENTION. See Construction. INTESTACY, PARTIAL, etc 298, 490 ISSUE 535, 554, 564 J. JOINT, interest in devise or bequest 29a, 566 JOINT WILL. See Consideration 480 K. KIN, next of 542, 543 KINDRED. See Construction 480 L. LAND 497, 498 LEASEHOLDS 494 LEGACY. See Construction ; Will 5 LIFE ESTATE 560 LIMITATION, and condition distinguished 283, 607 and purchase distinguished 553a LOST WILL 402 LUCID INTERVAL. See Insane Persons. LUNATIC. See Insane Persons. M. MANIA. See Insane Persons 121-128 ]\L4RINERS. See Nuncupative Will. MARRIAGE, rights of surviving spouse 11, 19, 79, 4Sla, 535a, 595 mutual will of husband and wife 62 marital influence in procuring a will 236, 237 husband or wife as subscribing witness 355 subsequent, etc., revokes will 19, 20, 46. 424-426 effect of divorce 426a. husband and wife under a gift 566 restraints upon marriage 22, 603 856 INDEX. Sec, MARRIED WOMEN, effect of subsequent statute 11 may take under will 25 incapacity to make will at common law 45 marriage a revocation 46, 424 modern changes as to wife's incapacity 47 exceptions; bequeatliing by husband's assent 48, 49 wife's disposition as executrix 50 wife's will of separate property 51-54 modern English statutes of wills 55 wife's will under late American statutes 56, 57 civil law rule; present tendency to conjugal equality 58 devise or bequest to husband 60 devise or bequest to wife 585 his agreement to wife's will 61 mutual wills of husband and wife 62, 455-457 wife's gift causa mortis 63 wife's execution of testamentary power 64 MEDICAL OPINION 204-213 ^nSNOMER 583 MISTAKES. See Ebbob. MISTRESS 22, 236, 237 MONEY 505 MONOMANIA. See Insane Pebsons 75, 76, 143-168 MORTGAGE 495, 504 MURDER, of testator by beneficiary 23 by testator 33, 120 MUTUAL WILLS. See Considebation. MYSTIC, will 9 N. NAME, condition of assuming < 604 NEPHEW 536 NICKNAME 583 NUNCUPATIVE WILL, wills which require no formal writing, etc 6, 38, 359 oral or nuncupative will defined 360 history prior to Statute of Frauds 361 elTectcd personal but not real estate 362 restraints under Statute of Frauds 303 now virtually abolished, with few exceptions 304, 365 Boldiers, mariners, etc., privileged 366-368 points to be considered; distinctions 369 whether made in coctrcmis 370, 371 INDEX. 867 KUNCUPATIVE Wll.h— continued. S" C. place of making will 372 manner of declaring 373, 374 requisite number of witnesses 375 subsequent reduction to writing 370 strictness of proof of material facts 377 informal writings, whether upheld 378 whether written will thus revoked, etc 379 0. OBLITERATION. See Revocation. P. PARALYSIS. See Insane Persons IIG-IIS PARENT, influence of in procuring a will 235 PARTNERS 29o PERPETUITIES 21 POWER 64, 299, 525, 526 PRECATORY, words, effect of 263, 595-597 PREJUDICE 162, 163 PRESENCE, at execution of will 340-343 See Execution. PRESUMPTION. See Construction; Evidence. PROBATE, as to insanity, due execution, etc.; costs 213a full or partial in case of error 216. 219 undue influence, etc 223, 248-251 several papers making a will 280 of altered will 434, 435 of codicil 440(1, 448'i or joint or mutual will 456-460 court in construction 492a PROOF. See Evidence, Probate. PROPERTY, real, personal, and mixed 4, 28, 29 See Will. acquired after making the will 29, 4-19, 486 rea.1, descriptions construed 494-504 personal, descriptions contrued 504-512, 550, 557-580 See Construction. PROSTRAnON 116 PUNCTUATION 472, 477, 571 PURCHASE 553a 858 INDEX. Seo. R. RELATION'S 537 REJMAINDER 550, 500 REPRESENTATIVE 538-541, 545 REPUBLICATION, of will after coverture 5!) definition; acts express and implied. . 441 express republication or re-execution 442, 443 implied republication ; oral or written 444-447 effect of republication 448-450 REPUGNANCY, in wills 478 See Construction. in description 518 REQUEST. See Pbecatoey. REQUISITES. See Wills. RESIDENCE. See Condition 604 RESIDUE. See Construction 521, 525, 550 REVOCATION, revoking instruments 296 wliether nuncupative will revokes 379 various modes of revocation 10, 380, 381 oral or implied not recognized 382 by burning, tearing, cancelling, etc 383, 384 sane intention to revoke must accompany 384 as to will destroyed unintentionally 385 where intention fails of action ; 386 burning, etc., by testator himself, etc 387 no witnesses to act necessary 388 burning, tearing, cancelling, etc 389-394 incomplete burning, cancelling, etc 395, 396 revocation of part only, etc 397, 398 of duplicate wills; of will, but not codicil 399, 400 presumptions; will lost or defaced 401, 402 testator's declarations 403 by subsequent will or codicil 404-410 two wills of same date 411 where revoking will cannot be found 412 revival of earlier will 413-415 reference of codicil to one of two wills 416 express revocation by later will, etc 417, 418 by other writing 419-422 parol evidence of intention 423 instrument intendc