THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW bS- 3^ PVvd ^1 V \ t hi'^"^ A^'^J-. v-T^ \\^ ^'\ f^ ^i / t w ju 1*1 H11 ^ V l,^ ^ THE AMERICAN CASEBOOK SERIES For years past the science of law has been taught by lectures, the use of text-books and more recently by the detailed study, in the class-room, of selected cases. Each method has its advocates, but it is generally agreed that the lecture system should be discarded because in it the lecturer does the work and the student is either a willing receptacle or offers a passive resistance. It is not too much to say that the lecture system is doomed. Instruction by the means of text-books as a supplement or sub- stitute for the formal lecture has made its formal entry into the educa- tional world and obtains widely ; but the system is faulty and must pass away as the exclusive means of studying and teaching law. It is an improvement on the formal lecture in that the student works, but if it cannot be said that he works to no purpose, it is a fact that he works from the wrong end. The rule is learned without the reason, or both . rule and reason are stated in the abstract as the resultant rather than as the process. If we forget the rule we cannot solve the problem; if we have learned to solve the problem it is a simple matter to formulate a rule of our own. The text-book method may strengthen the mem- ory; it may not train the mind, nor does it necessarily strengthen it. A text, if it be short, is at best a summary, and a summary presup- poses previous knowledge. If, however, law be considered as a science rather than a collection of arbitrary rules and regulations, it follows that it should be studied as a science. Thus to state the problem is to solve it ; the laboratory method has displaced the lecture, and the text yields to the actual experiment. The law reports are in more senses than one books of experiments, and, by studying the actual case, the student co-operates with the judge and works out the conclusion however complicated the facts or the principles involved. A study of cases arranged his- torically develops the knowledge of the law, and each case is seen to be not an isolated fact but a necessary link in the chain of develop- ment. The study of the case is clearly the most practical method, for the student already does in his undergraduate days what he must do all his life; it is curiously the most theoretical and the most prac- tical. For a discussion of the case in all its parts develops analysis, the comparison of many cases establishes a general principle, and (iii) G70i73 lY PREFACE. the arrangement and classification of principles dealing with a sub- ject make the law on that subject. In this way tr.\ining and knowledge, the means and the end of legal study, go hand and hand. The obvious advantages of the study of law by means of selected cases make its universal adoption a mere question of time. The only serious objections made to the case method are that it takes too much time to give a student the requisite knowledge of the sub- ject in this way and that the system loses sight of the difference be- tween the preparation of the student and the lifelong training of the lawyer. jMany collections of cases seem open to these objections, for they are so bulky that it is impossible to cover a particular sub- ject with them in the time ordinarily allotted to it in the class. In this way the student discusses only a part of a subject. His knowl- edge is thorough as far as it goes, but it is incomplete and frag- mentary. The knowledge of the subject as a whole is deliberately sacrificed to training in a part of the subject. It would seem axiomatic that the size of the casebook should cor- respond in general to the amount of time at the disposal of instructor and student. As the time element is, in most cases, a nonexpansive quantity, it necessarily follows that, if only a half to two-thirds of the cases in the present collections can be discussed in class, the pres- ent casebooks are a third to a half too long. From a purely practical and economic standpoint it is a mistake to ask students to pay for 1,200 pages when they can only use 600, and it must be remembered that in many schools, and with many students in all schools, the mat- ter of the cost of casebooks is important. Therefore, for purely practical reasons, it is believed that there is a demand for casebooks physically adapted and intended for use as a whole in the class-room. But aside from this, as has been said, the existing plan sacrifices knowledge to training. It is not denied that training is important, nor that for a law student, considering the small amount of actual knowledge the school can hope to give him in comparison with the vast and daily growing body of the law, it is more important than mere knowledge. It is, however, confidently asserted that knowledge is, after all, not unimportant, and that, in the inevitable compromise between training and knowledge, the present casebooks not onlv de- vote too little attention relatively to the inculcation of knowledge, but that they sacrifice unnecessarily knowledge to training. It is be- lieved that a greater effort should be made to cover the general prin- ciples of a given subject in the time allotted, even at the expense of a considerable sacrifice of detail. But in this proposed readjustment of the means to the end, the fundamental fact cannot be overlooked that law is a developing science and that its present can only be un- derstood through the medium of its past. It is recognized as im- perative that a sufficient number of cases be given under each topic PREFACE. V treated to afford a basis for comparison and discrimination ; to show the development of the law of the particular topic under discussion ; and to afford the mental training for which the case system neces- sarily stands. To take a familiar illustration: If it is proposed to include in a casebook on Criminal Law one case on abortion, one on libel, two on perjury, one on larceny from an office, and if in order to do this it is necessary to limit the number of cases on specific intent to such a degree as to leave too few on this topic to develop it fully and to furnish the student with training, then the subjects of abor- tion, libel, perjury, and larceny from an office should be wholly omit- ted. The student must needs acquire an adequate knowledge of these subjects, but the training already had in the underlying principles of criminal law will render the acquisition of this knowledge compara- tively easy. The exercise of a wise discretion would treat fundamen- tals thoroughly : principle should not yield to detail. Impressed by the excellence of the case system as a means of legal education, but convinced that no satisfactory adjustment of the con- flict between training and knowledge under existing time restrictions has yet been found, the General Editor takes pleasure in announcing a series of scholarly casebooks, prepared with special reference to the needs and limitations of the class-room, on the fundamental sub- jects of legal education, which, through a judicious rearrangement of emphasis, shall provide adequate training combined with a thor- ough knowledge of the general principles of the subject. The collec- tion will develop the law historically and scientifically; English cases will give the origin and development of the law in England ; Ameri- can cases will trace its expansion and modification in America; note.«^ and annotations will suggest phases omitted in the printed case Cumulative references will be avoided, for the footnote may not hop* to rival the digest. The law will thus be presented as an organic growth, and the neces- sary connection between the past and the present will be obvious. The importance and difficulty of the subject as well as the time that can properly be devoted to it will be carefully considered so that each book may be completed within the time allotted to the particular sub- ject. It is equally obvious that some subjects are treated at too great length, and that a less important subject demands briefer treatment. A small book for a small subject. In this way it will be alike possible for teacher and class to com- plete each book instead of skimming it or neglecting whole sections; and more subjects may be elected by the student if presented in short- er form based upon the relative importance of the subject and the time allotted to its mastery. Training and knowledge go hand in hand, and Training and Knowl- edge are the keynotes of the series. V; PREFACE. If it be granted that all, or nearly all, the studies required for ad- mission to the bar should be studied in course by every student — and the soundness of this contention can hardly be seriously doubted — it follows necessarily that the preparation and publication of collections of cases exactly adapted to the purpose would be a genuine and by no means unimportant service to the cause of legal education. And this result can best be obtained by the preparation of a systematic series of casebooks constructed upon a uniform plan under the super- vision of an editor in chief. For the basis of calculation the hour has been taken as the unit. The General Editor's personal experience, supplemented by the experience of others in the class-room, leads to the belief that approximately a book of 400 pages may be covered by the average student in half a year of two hours a week ; that a book of 600 pages may be discussed in class in three hours for half a year; that a book of 800 pages may be completed by the student in two hours a week throughout the year ; and a class may reasonably hope to master a volume of 1,000 pages in a year of three hours a week. The general rule will be subject to some modifications in connection with particular topics on due con- sideration of their relative importance and difficulty, and the time ordinarily allotted to them in the law school curriculum. The following subjects are deemed essential in that a knowledge of them (with the exception of International Law and General Juris- prudence) is universally required for admission to the bar: ' Administrative Law. ..-^'' Insurance. Agency. International Law. " Bills and Notes. Jurisprudence. Carriers. Mortgages. - Contracts. Partnership. Corporations. Personal Property, including Constitutional Law. the Law of Bailment. Criminal Law. -d i t, . I i^t Year. Criminal Procedure. Real Property, j 2d ;; Common-Law Pleading. Public Corporations. Conflict of Laws. Quasi Contracts. Code Pleading. Sales. " Damages. Suretyship. Domestic Relations. Torts. Equity. Trusts. • Equity Pleading. Wills and Administration. V Evidence. m- International Law is included in the list of essentials from its truisic importance in our system of law. As its principles are simple m comparison with municipal law, as their application is less technical, PREFACE. Vll and as the cases are generally interesting, it is thought that the book may be larger than otherwise would be the case. As an introduction to the series a book of Selections on General Jurisprudence of about 500 pages is deemed essential to completeness. The preparation of the casebooks has been intrusted to experienced and well-known teachers of the various subjects included, so that the experience of the class-room and the needs of the students will fur- nish a sound basis of selection. While a further list is contemplated of usual but relatively less im- portant subjects as tested by the requirements for admission to the bar, no announcement of them is made at present. The following gentlemen of standing and repute in the profession are at present actively engaged in the preparation of the various case- books on the indicated subjects: George W. Kirchwey, Dean of the Columbia University, School of Law. Subject, Real Property. Nathan Abbott, Professor of Law, Columbia University. (Formerly Dean of the Stanford University Law School.) Subject, Per- sonal Property. Frank Irvine, Dean of the Cornell University School of Law. Sub- ject, Evidence. Harry S. Richards, Dean of the University of Wisconsin School of Law. Subject, Corporations. James Parker Hall, Dean of the University of Chicago School of Law. Subject, Constitutional Law. William R. Vance, Dean of the George Washington University Law School. Subject, Insurance. Charles M. Hepburn, Professor of Law, University of Indiana. Sub- ject, Torts. William E. Mikell, Professor of Law, University of Pennsylvania. Subjects, Criminal Law and Criminal Procedure. George P. Costigan, Jr., Professor of Law, Northwestern University Law School. Subject, Wills and Administration. Floyd R. Mechem, Professor of Law, Chicago University. Subject, Damages. (Co-author with Barry Gilbert.) Barry Gilbert, Professor of Law, University of Illinois. Subject, Damages. (Co-author with Floyd R. Mechem.) Thaddeus D. Kenneson, Professor of Law, University of New York. Subject, Trusts. Charles Thaddeus Terry, Professor of Law, Columbia University. Subject, Contracts. v/ PREFACE. If it be granted that all, or nearly all, the studies required for ad- mission to the bar should be studied in course by every student — and the soundness of this contention can hardly be seriously doubted — it follows necessarily that the preparation and publication of collections of cases exactly adapted to the purpose would be a genuine and by no means unimportant service to the cause of legal education. And this result can best be obtained by the preparation of a systematic series of casebooks constructed upon a uniform plan under the super- vision of an editor in chief. For the basis of calculation the hour has been taken as the unit. The General Editor's personal experience, supplemented by the experience of others in the class-room, leads to the belief that approximately a book of 400 pages may be covered by the average student in half a year of two hours a week; that a book of 600 pages may be discussed in class in three hours for half a year; that a book of 800 pages may be completed by the student in two hours a week throughout the year ; and a class may reasonably hope to master a volume of 1,000 pages in a year of three hours a week. The general rule will be subject to some modifications in connection with particular topics on due con- sideration of their relative importance and difficulty, and the time ordinarily allotted to them in the law school curriculum. The following subjects are deemed essential in that a knowledge of them (with the exception of International Law and General Juris- prudence) is universally required for admission to the bar: "^ Administrative Law. »^ Agency. Rills and Notes. Carriers. Contracts. Corporations, Constitutional Law. Criminal Law. Criminal Procedure. Common-Law Pleading. Conflict of Laws. Code Pleading. Damages. Domestic Relations. Equity. Equity Pleading, i Evidence. Insurance. International Law. Jurisprudence. Mortgages. - Partnership. A Personal Property, including the Law of Bailment. Real Property. \ 2d ^^'"* I 3d " Public Corporations. Quasi Contracts. Sales. Suretyship. Torts. Trusts. • Wills and Administration. International Law is included in the list of essentials from its in- trmsic importance in our system of law. As its principles are simple in comparison with municipal law, as their application is less technical, PREFACE. VU and as the cases are generally interesting, it is thought that the book may be larger than otherwise would be the case. As an introduction to the series a book of Selections on General Jurisprudence of about 500 pages is deemed essential to completeness. The preparation of the casebooks has been intrusted to experienced and well-known teachers of the various subjects included, so that the experience of the class-room and the needs of the students will fur- nish a sound basis of selection. While a further list is contemplated of usual but relatively less im- portant subjects as tested by the requirements for admission to the bar, no announcement of them is made at present. The following gentlemen of standing and repute in the profession are at present actively engaged in the preparation of the various case- books on the indicated subjects: George W. Kirchwey, Dean of the Columbia University, School of Law. Subject, Real Property. Nathan Abbott, Professor of Law, Columbia University. (Formerly Dean of the Stanford University Law School.) Subject, Per- sonal Property. Frank Irvine, Dean of the Cornell University School of Law. Sub- ject, Evidence. Harry S. Richards, Dean of the University of Wisconsin School of Law. Subject, Corporations. James Parker Hall, Dean of the University of Chicago School of Law. Subject, Constitutional Law. William R. Vance, Dean of the George Washington University Law School. Subject, Insurance. Charles M. Hepburn, Professor of Law, University of Indiana. Sub- ject, Torts. William E. Mikell, Professor of Law, University of Pennsylvania. Subjects, Criminal Law and Criminal Procedure. George P. Costigan, Jr., Professor of Law, Northwestern University Law School. Subject, Wills and Administration. Floyd R. Mechem, Professor of Law, Chicago University. Subject, Damages. (Co-author with Barry Gilbert.) Barry Gilbert, Professor of Law, University of Illinois. Subject, Damages. (Co-author with Floyd R. Mechem.) Thaddeus D. Kenneson, Professor of Law, University of New York. Subject, Trusts. Charles Thaddeus Terry, Professor of Law, Columbia University. Subject, Contracts. VUl PREFACE. Albert M. Kales, Professor of Law, Northwestern University. Sub- ject, Persons. Edwin C. Goddard, Professor of Law, University of Michigan. Sicb- ject, Agency. Howard L. Smith, Professor of Law, University of Wisconsin. Sub- ject, Bills and Notes. (Co-author with Wm. Underhill Moore.) W^m. Underhill Moore, Professor of Law, University of Wisconsin. Subject, Bills and Notes. (Co-author with Howard L. Smith.) Edward S. Thurston, Professor of Law, George Washington Univer- sity, Subject, Quasi Contracts. Crawford D. Hening, Professor of Law, University of Pennsylvania. Subject, Suretyship. Clarke B. \\'hittier, Professor of Law, University of Chicago. Sub- ject, Pleading. Eugene A. Gilmore, Professor of Law, University of Wisconsin. Subject, Partnership. Joshua R. Clark, Jr., Assistant Professor of Law, George Washington University. Subject, Mortgages. Ernst Freund, Professor of Law, University of Chicago. Subject, Administrative Laiv. Frederick Green, Professor of Law, University of Illinois. Subject, Carriers. Ernest G. Lorenzen, Professor of Law, George Washington Univer- sity. Subject, Conflict of Lazvs. William C. Dennis, Professor of Law, George Washington University. Subject, Public Corporations. James Brown Scott, Professor of Law, George Washington Univer- sity; formerly Professor of Law, Columbia University, New York City. Subjects, International Law, General Jurisprudence-, Equity. James Brown Scott, General Editor. WA.siii\(iT<)v, D. C, July. 11)10. Following are the books of the Series now published, or in press: Adtuliilstrntlvp f.aw DauiaKos Illlls ntid Notes r.irtmM-shlp Cnrrlcrs Suretyship Con M let of r>inv8 Trusts Crlmfnnl T,n\v Wills aud Administration Crimliinl rroeeduro PREFACE When this casebook was begun, it was expected that it would cover wills and administration only. It was soon found, however, that_ by teaching tradition in this country, as well as on principle, the subject of Descent was so closely bound up with Wills and Administration that it ought to be included with them. The book was therefore extended in number of pages to include cases on descent, and the title was ac- cordingly expanded to read, Cases on Wills, Descent, and Administra- tion. The inclusion of these three subjects in one volume is justified by Abbott's Cases on Descent, Wills, and Administration and by Vol- ume IV of Gray's Cases on Property. The compiler of a casebook on such a widely varied subject-matter as Wills, Descent, and Administration finds not the least of his tasks that of exclusion. He cannot begin to put in everything that he would like, yet, so far as his number of pages allows, he must leave out noth- ing that teachers of the subject would want included. Moreover, he must endeavor to give properly proportioned space to the various topics treated, knowing full well that he cannot hope to please all crit- ics. The effort of the compiler has been to give to each topic only that space which its intrinsic difficulty or the variety of decisions upon it seemed to demand. Throughout the work the need of offering a choice of material for teachers to select from has been kept in mind. Of the 290 principal cases in this collection, 103 are English and Irish. To the 187 American cases the different jurisdictions have con- tributed as follows : Delaware, Indiana, North Dakota, Oregon, and Utah, 1 case each ; Kentucky, Mississippi, South Carolina, Texas, and Virginia, 2 cases each; Alabama, Arkansas, Kansas, Nebraska, Ohio, Vermont, and Wisconsin, 3 cases each ; Iowa, Maryland, and the fed- eral courts (counted as one jurisdiction), 4 cases each ; New Hampshire, 5 cases; California, Connecticut, Maine, and Missouri, 6 cases each; Georgia, Michigan, and Minnesota, 7 cases each; New Jersey and North Carolina, 8 cases each ; Rhode Island, 9 cases ; Pennsylvania, 11 cases; New York, 13 cases; Illinois, 16 cases; and Massachusetts, 24 cases. While the geographical distribution of cases selected for a book of this character is largely accidental, it is believed that the actual territorial apportionment is unusually good. Certain cases necessarily find a place in any collection of decisions on the subject, and the judgment of previous compilers as to leading cases has not been lightly disregarded. Indebtedness must be ac- (ix) X PREFACE. knowledged to Professor Abbott's Cases on Descent, Wills, and Ad- ministration, to Professor Mechem's Cases on Succession, and to Pro- fessor Gray's Cases on Property. A word should be said about the footnotes added by the compiler. On the subject of footnotes great differences of opinion will be found among law school teachers. Some prefer practically no footnotes; others want what is in effect a treatise in the form of footnotes; still others favor various intermediate kinds of footnotes. In this particular casebook the footnotes will be found to represent an intermediate va- riety. They make no attempt to collect and marshal all the decisions on a given point, but very frequently refer to readily available compila- tions of such decisions. They do seek, however, to indicate conflicts of authority on given points, where such conflicts are not made plain by the cases given in the text, and frequent quotations are made in them for the elucidation or refutation of points covered by cases found in the text. The importance of serviceable footnotes has been kept constantly in mind by the compiler. ^ In order to make readily available the quotations placed by the com- ' piler in the text and in the footnotes the cases quoted from are in- cluded in the table of cases. About 225 cases are thus listed, and their geographical apportionment happens to be much the same as that of the principal cases. To facilitate reference to the statutes, sections of the English stat- utes have been printed in the book at what seemed appropriate places for their convenient use; but those sections are also given or referred to in the Appendix, which contains a reasonably full collection of the English statutes. Geo. p. Costigan, Jr. Chicago, Illinois, May 5, 1910. TABLE OF CONTENTS PARTI Last Wills and Testaments. chapter i. Definitions Page. 1 CHAPTER II. HiSTOBT OF THE LaW OF WlIXS AND OF TESTAMENTS 3 CHAPTER III. Testamentabt Capacity and Intent. Section 1. Infancy ^ 2. Coverture ^ 3. Alienage ^^ 4. Conviction of Crime 1^ 5. Mental Capacity ^^ 6. Fraud and Undue Influence 31 7. Mistake ^ CHAPTER IV. Wills and Testaments Distinguished from Certain Other Dispositions OF Propertt. 1. From Deeds *^ 2. From Gifts Causa Mortis ^^ 3. From Contracts to Bequeath or to Devise 90 CHAPTER V. I Kinds of Wills and of Testaments. 1. A Will In Writing ^ 2. Holographic (or Olographic) Wills 94 8. Nuncupative Wills 97 4. Conditional Wills JJ^ 5. Joint and Mutual Wills ^"' COST.WILLS (xi) XU TABLE OF CONTENTS. CHAPTER VI. The ExEctJTioN of Wkitten Wills and Testaments. Section Pag« 1. Statutes 122 2. Testator's Knowledge of the Instrument's Contents 114 3. Testator's Signature 116 4. Testator's Acknowledgment, Publication and Request to Witnesses to Sign 133 5. Attestation In the Presence of the Testator and, WTien Required, in the Presence of the Other Witness or Witnesses 147 6. The Order of Signing 166 7. The Witnesses' Signatures and the Attestation Clause 174 8. Competency of the Witnesses 1S6 9. Incorporation by Reference 202 CHAPTER VII. The Revocation of Wills, 1. Statutes 228 2. Revocation by Subsequent Instrument 229 3. Revocation by Burning, Tearing, Canceling, Obliterating, Mutilating or Otherwise Destroying. 241 4. So-Called Revocation by Circumstances 272 5. Presumption as to Revocation 307 6. Dependent Relative Revocation \, 308 CHAPTER VITI. The Republication and Revival of Wills. 1. Statutes 335 2. Republication .'.*.**.*.*.' .*.'.* 339 3. Revival 3l>8 PART II. Descent. chapter i. The Nature of Descent. L Descent and Consanguinity 3g4 2. Biackstone's Ca nons of Descent !!!..'!**!!*" 3S6 3. Seisin and Descent 388 4. Descent and Distributions ...................[ 391 5. Pa rtinl Intestacy 306 a Kqultable and Legal Descenilible Interests '6Q7 *ABLE OF CONTENTS. ^11^ CHAPTER II. Persons Taking by Descent. Page Section 1. The Widow as "Heir" ^^^^ 2. Pretermitted Heirs ^'^^ 3. Adopted Children ' 4. Illegitimate and Legitimated Children 4-d- 5. The Murderer of the Ancestor ^- 6. Persons Civilly Dead p.^ 7. Aliens CHAPTER III. The Liability of Heirs foe the Ancestob's Debts 453 CHAPTER IV. Breaking Descent. 1. By Deed ^^. 2. By Devise CHAPTER V. Shifting Descents. 474 1. Posthumous Children ^ ' 2. Other Af ter-Born Heirs '*^" CHAPTER VI. The Transfer of Expectancies. 1. Release to Ancestor ^^ 2. Conveyance to Third Persons 46t4 PART III. The Probate of Wills and the Administration of Estates. chapter l The Grant and Revocation of Probate and of Administration. 1. The Jurisdiction to Issue Letters 494 2. The Necessity and Effect of Probate and of Administration SO* 3. The Appointment and Removal of Executors and Administrators 521 4. The Revocation of Probate and of Administration 533 CHAPTER II. The Title and Powers of Executors and Administrators. 1. What Interests Survive to Executors and to Administrators 545 2. Time When Title Vests 5G2 3. Debts Due from the Personal Representative as Assets o68 4. The Power of Alienation 5(3 XIV TABLE OF CONTENTS. CHAPTER III. gg^jtipQ The Payment of Debts of the Estate. p^^gg 1. Claims Against the Estate 591 2. T&e Presentation of Claims 605 3. Priorities between Claims 611 4. Priorities of Creditors over Legatees and Next of Kin 613 5. Executors de Son Tort 620 6. Refunding by Creditors 632 CHAPTER IV. The Payment of Legacies and Distributive Shares. 1. The Time of Payment of Legacies and Interest, Dividends and Up- keep Charges on Legacies 637 2. The Abatement of Legacies and Devises 657 3. The Retainer and Refunding of Legacies and Distributive Shares... 682 4. The Exoneration of Mortgaged Property 702 5. Residuary Devises and Bequests 711 6. Advancements and the Ademption and Satisfaction of Legpcies and Devises 722 APPENDIX. English Statutes 753 TABLE OF CASES [cases cited in footnotes are indicated by italics, where small capitals are used, the case is referred to in the text] Page Aaron, Appeal of 319 Abrahams, In re ^598 Abrahams v. Abrahams 698 Adams v. Crane 652 Albright V. North 120 Allen V. Bromberg 90 Allen V. Dundas 534 Allen V. Griffin 169 Allen V. Haddock 204 Alvord V. Marsh 568 Ametrano v. Downs '''28 Anonymous 682 Armstrong's Appeal 659 Attorney General v. Day 400 Attorney General v. Lloyd 311 Avery v. Everett 444 Baker's Appeal 127 Baldwin v. Spriggs 283 Baldwin's Will, In re 186 Ballard v. Camplin 722 Balls, In re 676 Banks, In re 676 Banks v. Busbridge 676 Banks v. Hoioard 91 Barker v. Comins 55 Barry v. Lambert 588 Basket v. Hassell 90 Bates V. Brown 481 Baudains v. Richardson 35 Bauerle v. Long 603 Beavan v. Went 452 Beggans' Will, In re 148 Beyer v. Hermann 114 Beyer v. Le Fevre 40 Biederman v. Seymour 467, 669 Bigelow V. Gillott 268 Birt's Goods, In re 131 Blackwood v. Darner 116 Bleckley's Goods, In re 261 Blight V. Hartnoll 715 Blinn v. McDonald 456 Blundell, In re 742 Page Boehm's Goods, In re 65 Bostwick V. Beach 604 Bower v. Daniel 110 Boyes, In re 218 Boyes v. Carritt 218 Boynton v. Hubbard 493 Bradford v. Blossom 115 Bradshaw v. Lancashire & Y. R. Co. 549 Brasier's Goods, In re 256 Brazier v. Hudson 562 Breslefs Estate, In re 722 Bridle, In re 746 Brisco V. Hamilton 68 Broderick's Will, In re 514 Brooks V. Woodson 168 Brook V. Warde 229 Brown v. Baxter 517 Brown v. Sackville 116 Breton v. Skirroio 150 Brown's Ex'r v. Dunn's Estate. . 610 Bruce, In re 751 Bryan v. Bigelow 222 Bryan's Appeal 211 Buchanan v. Pue 689 Buehler v. Glouinger 557 Buerhaus v. De Saussure 699 Buffalo Trust Co. v. Leonard.. .. 683 Burney v. Allen 155 Burton v. Brown 184 Bushby v. Dixon 891 Bushell's Goods, In re .*.. 69 Butler V. Elyton Land Co 424 Cadell V. Wilcocks 233 Cady wold's Goods, In re 287 Calkins v. Calkins 160, 186 Campbell, In re 359, 383 Campbell v. French 309 Carlton v. Carlton 191 Carleton ex dem. Griffin v. Griffin 203, 339 Carmichael v. Lathrop 734 Co ST. Wills— b (XV) XVI TABLE OF CASES. Pago Carter v. Bay 462 Carter v. Manufacturers' Nat. Bank of Lewiston 573 Casson v. I>ade 148 Chamberlain v. Williamson 546 Champion, In re 341 CliampoUion v. Corbin 514 Chase v. Fits 5M Cheese v. Lovejoy 241 Cheever v. North 3S0 Chidsey v. Brookes 513 Clafliu's Will, In re 134 Clapp V. Tower 397 Clark V. Williams 691 Collins V. Capps 77 Collins V. Elstone 56 Connecticut T. d 8. Deposit Co. V. Chase 731 Cowper V. Scott 747 Cox V. Morrow 525 Crane, In re 652 Cravath v. Plympton 591 Creesy v. Willis 708 Crocker v. Crocker 544 Crosbie v. MacDoual 352, 383 Cross V. Long 605 Crutchley v. Wells 656 Cunningham v. Cunningham .... 155 Cutlar V. Cutlar 480 Cutting V. Tower 559 Dallinger v. Richardson 512 Danlcy v. Jefferson 379 Davidson v. Davidson 37 Davis V. Kirk 468 Davis V. Newman 684 Davis V. Nichols 595 Davis' Will, In re 102 Davy & Nichols v. Smith 147 Deal V. Sexton 475 Dempsey v. Laicson 233 Dennis v. IloUupple 226 I>enny v. Barton 232 Dcvine v. Healy 502 Dixon V. Solicitor to the Treasury 321 Dobbs V. Gullldge 500 Dodson V. Dodson 86 Doe ex dem. Fei-guson v. Hedges 714 Doe ex dom. Perlvcs v. Perkes.. 246 Doe ex dom. Reed v. Harris .... 242 Doe ex deni. Small v. Allen 34 Doe ex dem. Wl>lte v. Barford ... 272 Donaldson v. Hall 301 Doncy v. Clark 559 Donnelly's Estate, In re 4.j0 Pago Dowie V. Sutton 36 Dresel v. King 397, 720 Drum V. Capps 19 Dudley v. Champion 341 Dudley v. Gates 45 Dudley v. Gates 520 Dunster, In re 721 Durf ee v. Risch 278 Eaton V. Brown 104 Eccles* Estate, In re 502 Edgerly v. Edgerly 45 Elliot V. Wilson 726 Ellis V. Page 470 Emernecker's Estate, In re 319 Emerson v. Inchbird 466 Emery v. Berry 620 Emery v. Clough 89 Emmons' Will, In re 211, 349 Evans' Appeal, In re 253 Everhart v. Everhart 117 Ewing V. Mallison 498 Farmers' Loan d Trust Co. v. Mc- Carthy 659 Farr v. O'Neall 237, 362 Fearn v. Postlethivaite 200 Ferguson v. Hedges 714 Ffinch V. Combe 258 Finlay v. Chirney 594 Fleming v. Morrison 165 Flickwir's Estate, In re 650 Fosselman v. Elder 129, 204 Frazier v. Patterson Ill French v. Vradenburg's Ex'rs . . . 662 Fretwell V. McLenore 519. Fulton V. Andrew 69 Gay V. Gay 249 Gay V. Sanders 496 Gelbach v. Shively 661 Gerbrich v. Freitag 107 Gibbons v. Caunt 274 Gibson v. Nelson 170 Gifford V. Dyer 50 Giles V. Warren 245 Gilkey v. Hamilton 566 Gill V. Gill 246 Gintcr v. Ginter 31 Glttins V. Steele 699 Glanoy v. Glancy 133 Godfrey v. Smith 97 Godrich v. Treat 527 Gordon v. James 661 Gosnell v. Flack 698 TABLE OF CASKS. XVll Page Grattan v, Grattan 722 Green v. Tribe 354, 383 Greville v. Browne 673 Griesel v. Jones 520 Griffin v. Griffin 203, 839 Ouardhoitse V. Blackburn 64 Gump V. Gowans 196 Gurney v. Gurney 363 Hacker v. Newborn 37 BacTcleman v. Eackleman 725 Haddock v. Boston & M. R. Co.. . 504 Hall V. Greene 606 Hall V. Hall 37 Hall V. Perry 19 Halliwell v. Tanner 702 Hall's Estate, In re 301 Hanna v. Palmer '. . . 620 Hannis v. Packer 202 Harley v. State 10 Harper v. Archer 474 Harrison v. Isaac 718 Harrisons' Appeal, In re 48 Harter v. Harter 58 Hartwell v. Martin 226 Haskell v. Hanson 604 Hatcher v. Buford 90 Haven v. Foster 341 Haivknns v. Hawkins 195 fiayes v. Moulton 47 Hays V. Jackson 664 Headrick v. McDowell 488 Heaston v. Krieg 84 Heath er, In re 742 Hellier v. Hellier 238 Henry v. Henry 392 Hetzel V. Hetzel 708 Higgins V. Higgins 464 Hill V. Simpson 577 Hilpire v. Claude 298 Hilton V. Hilton 486, 728 Hindmarsh v. Charlton 166 Hobart v. Holart 143 Hoths V. Knight 248 Hoffm-an v. Hoffman 36 HofE's Appeal 703 Hoitt V. Hoitt 295 Hohnan's Estate, In re 36 Holt V. Libby 697, 748 Holt's Will, In re 193 Holyoke v. Sipp 185 Home of the Aged v. Bants 271 Hopkinson v. Dumas 403 Hopkins v. Wampler 20 Horsf ord's Goods, In re 326 Page Houghton v. Dickinson 420 Hovey v. Page 545 Howard v. Hunter 262 Howell V. Troutman 33 Hoy V. Hoy 276 Hudnall v. Ham 384 Hunt, In re 706 Hunt V. Evans 348 Iddings V. Iddings 53 IngersoU v. Hopkins 287 International Trust Co. v. An- thony 174 Isaac, In re 718 Izard V. Hurst 3G1, 742 Jacobs V. Button 731 Jacques v. Swasey 742 James v. Shrimpton 309, 382 Jenkins v. French 594 Jenks V. Hoag 560 Johnson v. Johnson 521 Jones V. Grieser 197 Jordan's Appeal 650 Judge of Probate v. Chamberlain 524 Karrer's Will, In re 143 Kelly V. Richardson 660, 671 Kelsey, In re 78 Kelsey v. Kelsey 78 Kennell v. Abbott 33 Kessinger v. Kessinger 46 Kihlken v. Kihlken 461 King, In re 616 Kissam's Will, In re 254 Knapen's Will, In re 331 Lacey v. Collins 678 Lacey v. Dohhs 169 Lancefield v. Iggulden 669 La Rue v. Lee 95, 97 Laughton v. Atkins 315 Lawford v. Bruce 751 Lemayne v. Stanley 117 Lessing, Mayer & Co. v. Vertrees 583 Lewis V. Rutherford 611 Lindsley v. Mclver 725 Littig V. Hance 747 Locke V. James 329 Locktoood V. Lockwood 44 Lowham's Estate, In re 502 Lowry v. Jackson 459 Luhrs V. Eimer 452 Lupton V. Lupton 683 Luscomb V. Ballard 600 ivm TABLE OF CASES. Page Lyon V. Dada 230 Lyon V. Osgood 5G8 McAllister v. Fair 429 McCabe's Goods, In re 323 McCauley's Estate, In re 364 McClure v. Raben 488 McClurc's Ex'rs v. Gamble COO McCoy V. McCoy '725 McGune's Devisees v. Rouse 230 McElroy v. Phink 307 McEndree v. Morgan 688 McGinley, Appeal of 126 Mclntyre v. Mclntyre 323 Mclntyre v. Proctor 530 Mackay v. St. Mary's Church ... 586 Mackay's Will, In re 141 Mackin v. Haven 453 McKnlght's Lessee v. Hedges 714 McLarney's Estate, In re 2S0 Madden's Goods, In re 129 Maddison v. Gill . 80 Maharajah Pertab 'Narain Singh V. Maharanee Suhhao Kooer . . 237 Main v. Miner 46 Main v. Kydor 46 Malen's Goods, In re 132 Malone's Adm'r v. Ilobbs 262 Manley's Ex'r v. Staples 20 Manners v. Manners 145 Marshall v. Berry 87 Marsh v. People 532 Means v. Ury 283 Mears' Estate, In re 536 Mellor V. Smith Australian Land Mortgage & Agency Co 616 Meyer's Estate, In re 77 Middleditch v. Williams 30 Milam v. Stanley 94 M ilcs' Appeal 272 Mitchell V. Gard 56 Mitchell V. Smart 563 Mode V. Garson 1S3 Molineaux v. Raynolds 717 Moniipimny v. Dristow 3il Moore, In re 222 Moore, Matter of 141 Moore v. Alden 68U Moore v. King 162 Moore v. Moore 9 Moresby's Goods, In re 316 Morlsey v. Brown 671, 720 Morrell v. Morrell 65 Morton's Goods. In re 218 Mullins V. Smith (Joii Page Murray v. Kelly 452 Murray's Estate, In re 502 Mutual Benefit Life Ins. Co. v. Howell 607 Myers v. Vanderbelt 93 Needham v. Borden 193 NewUn's Estate, In re 320 Newton v. Clarke 150 Newton v. Newton 313, 381 Newton v. Seaman's Friend Soci- ety 203 Neio York Life Ins. Co. v. Chitten- den 495 Noon's Will, In re 378 Norman v. Baldry 619 Noi'th V. Graham 388 Norton v, Sewall 560 O'Brien v. Spalding 201 O'Dell V. Goft 30 O'Donnell's Estate, In re 588 Oetjen v. Oetjen 266 Olmstead's Estate, In re 254 Onions v. Tyrer 308 Overpeck's Will, In re 43 Owen V. Crumbaugh 23 Palmer v. Owen 130 Palmer v. Palmer's Estate 656 Parfitt V. Lawless 31 Parker v. Wells 607 Parsons v. Balson 231 Patch V. White 71 Payne's Appeal 592 Peabody v. Cook 405 Pearce, In re 656 Pearson v. Pearson 637 Peet V. Peet 411 Peirce, In re 734 Pepper's Estate, In re 260 Perkes v. Perkes 246 Perkins v. Ladd 621 Perkins v. Owens 543 Perkins' Estate, In re 224 Phillippe V. Clevenger 290 Pickens v. Davis 368 Piercy's Goods, In re 159 Plate's Estate, In re 119 Plume V. Beale 513 Plumel's Estate, In re 215, 351 Porter's Appeal 102 Potter V. Metropolitan District R. Co 549 Powell V. Powell 317 TABLE OF CASES. X.1X Page Poicvs V. Mansfield 362 Pulling V. Great Eastern R. Co... 552 Quain's Appeal 599 Quinn V. Butler 315 Raikes v. Raikes 657 Rankin's Heirs v. Rankin's Ex'rs 10 Rattenberry, In re 748 Ray V. Grant '''48 Raymond v. Fitch 547 Raymond v. Wagner 162 Reed v. Harris 242 Reed V. Roberts 151 Reid's Goods, In re 208, 346 Rhodes V. Rhodes 67 Rice V. Rice ...'. 'J'lO Rich V. Gilkey 231 Richards v. Pierce 507 Richards v. Richards 477 Richardson v. Richardson 201 Riggs V. Riggs 160 Riley v. Riley 119, 183 Ring's Estate, In re 610 Riordan v. Bannon 222 Rolertson v. Broadhent 072 Robertson's Estate, In re 185 Rogers v. Goodenough 381 Rohn V. Rohn 623 Rollwagen v. Rollwagen 43 Rose V. Cunngnghame 203 Rozell V. Harmon 627 Rudy V. Ulrich 231 Rutherford, In re 641 Savage's Goods, In re 258 Sawyer v. Sawyer 351 Saxe V. Sase 527 Schillinger v. Baioek 130 Schofield V. Thomas 157 Schott's Goods, In re 70 Seabright v. Seabright 395 Seaman's Estate, In re 120 Security Co. v. Snow 315 Semine v. Semine 533 Semmes v. Semmes 321 Sharp, In re 80 Sharp V. Hall 83 Shaw V. Camp 348 Shaw's Estate, In re 529 Shelton's Will, In re 266 Shepard v. Taylor 401 Shepard v. Taylor 404 Shephard v. Rhodes 541 Shires v. Glascock 147 Fag* Shoenberger's Ex'rs r. Lancaster Savings Institution 565 Simmons v. Bollaud 613 Simpson v. Foxou 238 SMpw^th V. Cabell 313 Slate V. Henkle 629 Slater, In re '<'34 Slaughter v. Heath 13 Sloan's Appeal 676 Small V. Allen 34 Smart's Goods, In re 208, 349 Smith V. Becker 450 Smith V. Henline 47 Smith's Goods, In re 103 Smith's Will, In re 43 Sparhawk v. Sparhawk 188 Sprinkle v. Holton 691 Stagg V. Green 562 Stebbins v. Palmer 592 Steele v. Frierson 492 Steele v. Renn 538 Stellmacher v. Bruder 91 Stetson v. Stetson 372 Stilwell V. Mellersh 341 Stone v. Hoskins 109 Storer's Will, In re 37 Storer v. Zimmerman 37 Stoutenburgh v. Hopkins 9 Strong's Appeal 336 Strong's Will, In re ISO Stubbs V. Sargon 225 Sullivan v. Sullivan 192 Sutherland v. Brush 588 Swan v. Hammond 276 Swire's Estate, In re 126 Sioygart v. Willard 22 Taylor v. Hawkins 582 Thayer v. Paulding 654 Thomas v. Chamberlain 609 Thomas v. Eoivell 313 Thomas v. Thomas' Estate 423 Tillinghast, In re 731 Tilton V. American Bible Society 70 Tindall's Ex'rs v. Tindall 711 Tolman v. Tolman 747 Touart v. Rickert 510 Tousey's Will, In re 334 Tovm of Pawtwcket v. Ballou 150 Townsend v. Moore 236 Townshend v. Howard 253 Trinitarian Congregational Church ■and Society of Castine, In re. . 191 Truro's Goods, In re 207, 342 Tucker v. Whaley 602 XX TABLE OF CASES. Page Tunno, In re 657 Tupper V. Tupper 313 Turner v. Laird 709 Tussand, In re T50 Tyler V. Tallman 676 Tyler v. Tjler 275 Tyner's Estate. In re 38 Tyner v. Tarian 38 Underhill, Matter of 688 Van Eouten v. Post 741 Varnon v. Vamon 310 Vernon v. Vernon 146 Vines' Estate, In re 107 "Wagner v. Varner 419 Waite V. Frisbie 51 Waite V. Frishie 120 Walcott V. Ochterlony 236 Walker V. FolletVs Estate 676 Walker's Estate, In re 174 Walton's Estate, In re 302 Ward V. Board of Com'rs 509 Warden's Estate, In re 408 Wardner v. Baptist Memorial Board 236 Warner v. Beach 294 Waters v. Waters 48 Watts' Estate, In re 676 Welch V. Adams 638 Welchman v. Sturgis 505 Page Wellner v. Eckstein 426 Welsh V. Brown 645 West, In re 699 West V. Roberts 699 Whitcomt) V. Whitcomh 31 WTiite V. Barf ord 272 White V. Casten 245 White V. Trustees of British lMu- seum 133 White V. Barford 272 Wilkinson v. Joughin 31 Willbor, In re 396 WMlletts, Appeal of 510 Williams v. Goodtitle 340 Williams v. Williams 382 Williams v. Wilson 10 Wilson V. Mitchell .'. 19 Wingrove v. Wingrove 34 Winslow V. Kimball 192 Wolf V. Beaird 632 Woodbury's Estate, In re 682 Woodfill V. Patton 254 Woodruff V. H. B. Claflin Co.... 636 Wood's Appeal 577 Woodward, Appeal of 421 Woodvxird's Estate, In re 641 Woodward's Goods, In re 266 Woolley V. Kelsey 78 Wyckoff V. Perrine's Ex'rs 656 Wyman v. Wyman 552 Zeph's Estate, In re 494 ZoUickoffer v. Seth 692 ^-fKm- p^ cj^ ^^ '^ cT" ^ /'^^v ^, ■^v-<\/ cC\^^i_^ *-/^' ^ S ■'- t p-v.-,, -, CASES ON WILLS, DESCENT AND ADMINISTRATION PART I LAST WILLS AND TESTAMENTS CHAPTER I DEFINITIONS PAGE'S DEFINITIONS "WilV'—'^ht word "will," in the popular meaning of the term, is a disposition, made by a competent testator in the form prescribed by law, of property over which he has legal power of disposition, which disposition is of such nature as to take effect at the death of the testa- tor.^ 1 "A more generally received definition is as follows: 'A will is an instru- ment by which a person makes a disposition of his property to take effect after his decease, and which is, in its own nature, ambulatory and revocable during his life.' 1 Jsirman on Wills, p. *18. This definition is inadequate. It describes some wills, and wills with which books on that subject commonly deal. But it does not describe all wills. A will is not always an instrument ; it may be oral or nuncupative. A will may make no disposition of property. An instru- ment, duly executed, and which merely appoints an executor, without direc- tions as to what he shall do, is a valid will, as is also an instrument by which a father appoints a guardian for his minor child, the appointment to take ef- fect upon the death of the father." Gardner on Wills, p. 2. But a so-called will, even though it is admitted to probate, may be one only by courtesy. Compare the case where the executor and everybody provided for In the will predeceased the maker of the will, where the will was admitted to probate, and yet where the so-called testator was held to have died "intes- tate" within the meaning of an act giving an intestate's widow £500 out of his estate. In re Cuffe, [1908] 2 Ch. 500. On the validity of a will making no disposition of property, see 89 Am. St Rep. 48T, note. COST.WlIXS. — \ 2 LAST WILLS AND TESTAMENTS. (Part 1 In its technical and historical sense, however, a "will" is an instru- ment of the type described which disposes of realty only. "Testament." — An instrument which disposes of personalty only is called a "testament," and an instrument disposing of both realty and personalty is known as a "will and testament." The popular meaning of "will" has so far encroached upon the tech- nical meaning that "will" is used indiscriminately of instruments pass- ing realty or personalty or both. "Testament," however, is almost never used of an instrument passing realty only. "Testator." — The word "testator" is very commonly used of the person making either a will or a testament. "Devisor." — "Devisor" is, according to derivation, the correct term for one who makes a will, but, while used, is not common. "Devisee," on the other hand, is the word regularly used to denote one to whom realty passes by will. "Legatee," is properly used to denote one to whom personalty passes by will. "Legatee" and "devisee" are frequently interchanged in popular usage, however. "Devise" and "bequeath." — Of the verbs used to denote the act of making a will, "devise" is properly used of realty, and "bequeath" of personalty. "Devise." — Of the nouns used to name the various forms of gift, "devise" is used of a gift of realty. "Legacy." — "Legacy" is used as a gift of a sum of money. "Bequest." — "Bequest" is used of a gift of personalty in general. None of these words have so fixed a legal meaning, however, that a gift will fail because testator does not use the words descriptive of the gift or the act of giving with technical accuracy. A "devise" is often miscalled a "bequest," or "bequest" is often used to include both realty and personalty, or is used of a gift of money alone. So the verb "devise" is often used to refer to personalty alone. Page on Wills, § 2. Ch. 2) HISTORY OP THE LAW OF WILL3 AND OP TESTAMENTS. 3 CHAPTER II HISTORY OF THE LAW OF WILLS AND OF TESTAMENTS LEAKE ON DISPOSITION BY WILL Land Not Devisable at Common Law, Except by Special Cus- tom. — The feudal principles of the common law did not admit of a disposition by will of land of freehold tenure. Upon the death of the tenant his heir was originally entitled by the terms of the grant; and though afterwards the title of the heir became liable to be defeated by an alienation of the ancestor during life, it was never defeasible at common law by a devise or testamentary disposition at death. Land was devisable by will in some places by special custom, as lands of gavelkind tenure in the county of Kent, land in the city of London, and in some boroughs, which customs are supposed to be relics of the earlier and prse-feudal common law. Uses in Equity Devisable, Until the Statutes o^ Uses. — Under the system of uses, to be noticed presently, the use or beneficial inter- est in the land, as recognized in the Court of Chancery, became dis- posable by will; and a testamentary disposition of land might be ef- fected by conveying it to be held to the uses to be declared by will. The Statute of Uses, 27 Hen. VIII [1535], by the conversion of uses into legal estates, took away this capacity of testamentary disposi- tion ; but, probably for that reason, it was soon followed by the Stat- utes of Wills, conferring a direct testamentary power over the legal estate. Statutes of Wills.— These statutes, 32 Hen. VIII [1540] c. 1, and 34 & 35 Hen. VIH [1542] c. 5, empowered a tenant in fee simple to give, dispose, will, or devise to any person or persons, by his last will and testament in writing, all his manors, lands, tenements, rents, and hereditaments, or any of them, "at his own free will and pleasure." The power was expressly restricted, as to lands held by the tenure of knight's service, to the extent of two-thirds of such lands only. But the statute, 12 Car. II [1660] c. 24, which afterwards converted the tenure of knight service into socage tenure, abolished this restriction, and rendered all lands of freehold tenure uniformly disposable by will. Statute of Frauds, as to the Form of Wills. — The Statute of Frauds, 29 Car. II [1676] c. 3, '§ 5, further regulated the form of wills of lands, by enacting (section 5) "that all devises and bequests of any lands or tenements devisable either by force of the Statute of Wills, or by this statute, or b}i force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some 4. LAST WILLS AND TESTAMENTS. (Part 1 Other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect." Section 6 prescribed the modes by which devises might be re- voked. The Wills Act (1 Vict. [1837] c. 26).— The above enactments were all repealed by the last Wills Act, 7 Wm. IV & 1 Vict. [1837] c. 26, § 2, except as to wills -made before 1838 (section 34) ; and under this statute the power to dispose of real estate by will now subsists, and the mode of exercising it is regulated. Disposition by Wili^-How Far Subject to the Rules of th^ Common Law.— A disposition by will, equally with a disposition by deed, is subject to the general rules of the common law regulating the estates or interests which may be given. A testator can only devise such estates as are known to the law, nor can he alter or take away the legal incidents and qualities of such estates; for instance, he cannot render estates of inheritance inalienable, nor alter the law of inheri- tance. How Far Independent of Rules of Law. — But the power of dis- position by will, being derived directly from the statute, is for the most part independent of the restrictions imposed by the peculiar feu- dal doctrines of the common law, and by the common-law forms of conveyance. Devises of freehold estates were operative without livery of seisin, and without attornment, before these formalities were dis- pensed with by statute. Devises of Future Estates. — Devises of freehold estates may be made to take effect in futuro, at a future date or upon any specified event, leaving the inheritance in the meantime to descend to the heir, or such devises may be made to take effect in defeasance of and in substitution for preceding devises, although such limitations of estates are contrary to the rules of the common law, which admit no future limitations or substitutions of the tenancy, except by way of re- mainders. These future devises are analogous to the springing and shifting uses which became legal limitations under the Statute of Uses, and they are called distinctively executory devises. Leake's Digest of the Law of Property in Land (1st Ed.) pt. I, chap. 1, section IV, § 2, pp. 66-69. DIGBY ON THE HISTORY OF THE LAW OF WILLS OF LAND It has been seen that one of the most marked effects of the growth of feudalism was the abolition, except in certain localities, of the prac- tice of devising interests in lands by will. Such a disposition would have defeated the most valuable rights of the lord — relief, wardship. Ch. 2) HI8TOET or THE LAW OF WILLS AND OF TESTAMENTS. 6 and marriagfe. It was therefore wholly inconsistent with feudal the- ories. In a great many boroughs, and in gavelkind lands, local cus- toms were sufficiently strong to preserve the ancient liberty of disposi- tion by will, and cases relating to "burgages devisable" are common in the Year Books. It has also been seen how the practice of disposing of uses of land by will became prevalent under the protection and encouragement of the Chancellors. One of the earliest of the recorded cases on this branch of the law contains a disposition by will, or rather perhaps settlement, of the use of lands made in the sixth year of Richard II. Except, therefore, in the case of burgages devisable, a devise, before the legislation presently to be noticed, was simply a declaration by the legal tenant of the uses to which his heir at his death should hold the lands, or of the uses to which he had conveyed the lands to feoffees (such conveyance having been expressed to be to the use of his will), or else a disposition of a use which had already been created in favor of himself. In order, therefore, that the devisee of the use might enforce the disposition of the will, the aid of the Chancellor was called in. The Chancellor could compel, if necessary, the tenant of the legal estate to convey the land devised to cestui que use, the devisee. It appears from the title and preamble of the Statute of Uses that one of its principal objects was to abolish the power of disposing of interests in lands by will, and thereby to restore to the king and the great lords the feudal dues which they could not claim if the estate of the heir were defeated by a devise. The Statute of Uses contained a saving in favor of wills made before the 1st day of May, 1536, the year following that of the passing of the statute. Between that time and July 20, 1540, the power of testation was, as regards freehold interests in lands, wholly abolished, except in the localities mentioned above. It may, however, be well believed that it was impossible for the legislature, arbitrary and thorough-going as it was, to maintain a restriction so opposed to the habits and prac- tices which had prevailed throughout the country ever since uses had been understood and protected by the Chancellor. Accordingly, in the thirty-second year of Henry VIII (1540), it was found necessary to restore a large measure of the power of devising interests in lands. The provisions of the Statute 32 Henry VIII, c. 1, are somewhat com- plicated ; but the upshot of them is that power is given to every tenant in fee simple to dispose of all his lands held by socage tenure, and of two-thirds of his lands held by knight-service. Careful provision is made by this statute for the saving of primer seisins, reliefs, and fines on alienation, in the case of socage lands, and of the rights of ward- ship over the third part of knight-service lands, in favor of the king or other lord. When by the act for the abolition of military tenures, tenure by knight-service was converted into free and common socage, the power 6 LAST WILLS AND TESTAMENTS. (Part 1 of devise granted by the Statutes of Henry VIII extended to the whole of the lands of which previously only two parts had been devisable. Digby's History of the Law of Real Property (5th Ed.) 377-379. PAGE ON THE HISTORY OF TESTAMENTS OF PERSONAL PROPERTY § 17. Testaments in Pre-Norman Times. — The testament passing personal property has a less complicated history. In pre-Norman times the power to dispose of personal property by testament was firmly established. It is not clear whether this power applied to the whole of testator's personal property, or to a part only. § 18. Doctrine of Reasonable Parts. — By Glanvil's time (A. D. 1187) it was settled that the power of disposing of personal property by testament had limits in some cases. If the testator left neither wife nor children, he could dispose of all of his personal property by testament; but if he left either wife or children, he could dispose of one-half of his personal property by testament, the other half going to the surviving wife or children, as the case might be; while if he left both wife and children, he could dispose of but a third of his per- sonal property (known as the "dead's part"). One-third of his per- sonal property (known as the "wife's part") went to his wife; the remaining third (known as "child's part" or "bairn's part") going to the children. There has been some dispute whether the rules above stated were the common law of England or only local customs. The weight of authority is that they were the cohimon law of England, and were in force in Glanvil's day over the whole of England. § 19. Power of Testator to Dispose of His Entire Personal Property. — This rule ceased to be the law in a great part of Eng- land so gradually that Blackstone says that it is impossible to trace out when first this alteration began, and so thoroughly that it was possible with some show of truth to deny that it ever had been the law. It was established by the reign of Charles I (1625-1649) that the general rule in England was that testator could dispose by testa- ment of any or all of his personal property, except where the relics of the old law still lingered, under the name of local custom, as in Yorkshire and London. These so-called local customs were one by one uprooted by Parliament in a series of repealing statutes, and final- ly the general statute, 1 Vict. c. 26 (1837), gave the testator the general power of disposing of the whole of his personal property. § 157. History of the Law of the Extrinsic Elements of Wills. — * * * Testaments were governed by the ecclesias- ticallaw. Originally the ecclesiastical courts enforced* even the oral wishes of the decedent; but in course of time oral wishes were enforced Ch. 2) HISTORY OF THE LAW OF WILLS AND OF TESTAMENTS. 7 only in certain specified cases. The testament, except in the cases where a nuncupative will was enforced, was required to be in writing. No further formalities were required. If testator assented to the instru- ment, it was not necessary that he sign it, or that it be subscribed by attesting witnesses. It was not necessary that the testament be a holograph ; that is, in testator's handwriting. An unsigned paper, not in testator's handwriting, and not signed by him, could be probated as his testament, if the evidence showed that he intended it as his testa- ment. The Statute of Frauds, already quoted, did not affect testaments. The danger of fraud, in the informal instruments which were upheld by the courts, became so evident that statutes were passed in England in the first half of the nineteenth century (1 Vict. c. 26, sec.^ 9), and in the different states of this country at different dates, imposing upon testaments of personalty substantially the formalities required to a will of lands.^ The original freedom of wills and testaments from set formalities persisted longer as to testaments of personalty than as to wills of realty. Indeed, in some jurisdictions testaments of person- alty are still less formal instruments than wills. Page on Wills, §§ 17, 18, 19, 157. PAGE ON WILLS AND TESTAMENTS IN THE UNITED STATES § 20. History of the Law of Wills and Testaments in the United States. — The English colonists who settled the Atlantic coast of what is now the United States in the seventeenth century brought with them the common law of England as modified by the Statute of Wills. Accordingly, where not expressly limited by local statute, the power of a testator to dispose of his realty, as well as his personalty, by last will and testament, has always been recognized in the courts of the United States. Not only was American law from the first held to be modified by the Statute of Wills, but the feudal system was never generally held to be a part of our law as being unsuited to our insti- tutions. The law of wills in the United States is thus based upon English law, and continuous with it in such states as were founded by the English. 1 "In England, prior to the statute of Victoria, wills of personal estate were not required to be attested or signed by the testator, and drafts of wills, or written memoranda, made by or for the testator, were admitted to probate in the ecclesiastical courts as valid written wills, not nuncupative. By that stat- ute, and by statutes in the various states of the Union, wills of real and per- sonal property were placed on the same footing as regards the formalities of their execution and attestation." 1 Underbill on the Law of Wills, § 175, p. 241, note 5. 8 LAST WILLS AND TESTAMENTS. (Part 1 In the South and West of the United States, however, the original European stock was not English, but French and Spanish. In these sections, therefore, marked traces of Roman law, as modified by the French and Spanish, are to be found. Louisiana has put into statutory form the French law, which in turn was based upon the Roman. In California and some of the territories adjoining on the southeast the law of wills is in part of Spanish origin. From these states statutes have been adopted in some other states. The net result may be said to be that in the greater part of the United States the law of wills is of pure English origin, modified by modem statutes, showing some influence of Spanish and French law in some of the Southern and Western states; while in Louisiana the law of wills is of French-Roman origin, gradually yielding in some respect to the influence of the remaining common-law states. Page on Wills, § 20. Ch.3) TESTAMENTARY CAPACITY AMD INTENT, CHAPTER III TESTAMENTARY CAPACITY AND INTENT SECTION 1,— INFANCY "And be it further enacted that no will made by any person under the age of twenty-one years shall be valid."— Wills Act, 7 Wm. IV & 1 Vict, c 26, § 7 (1837). "It is not questioned that, by the Act of 1840, a person under the age of twenty-one, is incapable of making a will. Hartley's Dig. art. 3252. If, therefore, the testator was a minor, as alleged, the will was void for the want of capacity to make it."— Wheeler, C. J., in Moore V. Moore, 23 Tex. 637, 638 (1859).^ SECTION 2.— COVERTURE "At common law, a married woman could not devise real estate, and was incapable of disposing of her chattels by will, without the consent of her husband."— Stoutenburgh v. Hopkins, 43 N. J. Eq. 577, 579, 12 Atl. 689, 690 (1887).* 1 "Lord Coke [C5o. LIL 89b. note 83] lays It down as an established rule of the common law that an Infant of eighteen may execute a valid will of per- sonalty, though no infant under the age of twenty-one had capacity to devise lands. [See St. 34 & 35 Hen. VIII, c. 5, f 14.] But the rules which were recog- nized in the English eoclesiastlcal courts, where wills of personal property were probated, were different. The rule of the civil law that infants who had attained the ace of fourteen, if males, and twelve, if females, had capacity to execute wills of personal property, was adopted in these courts. The judgment of the probate court admitting the will to probate being conclusive as to the capacity of the testator, the rule of the civil law was agreed to, if not affirmed, by the courts of common law and In the Jurisdiction of the chancellor." 1 Un- derhill on the Law of Wills, 170, S 120. Ix)cal statutes should be consulted. 2 On the effect of coverture on testamentary capacity at common law, see 1 Jarman on Wills, »39-^2, and 57 Am. Dec. 340-349, note. Local statutes should be consulted. On the right of a wife, under a statute removing the dis- abilities of married women, to devise property held by her husband and her- self as joint tenants, see 7 L. R. A. (N. S.) 701, note. As late as 1899 the Idaho statutes were construed to empower married women to make witnessed wills, but not unwitnessed holographic vrills. Scott v. Harkness, 6 Idaho, 736, 59 Pao. 656 (1899). 10 LAST WILLS AND TESTAMENTS. (Part 1 SECTION 3.— ALIENAGE "Aliens are capable of acquiring, holding, and transmitting movable property, in like manner as our own citizens, and they can bring suits for the recovery and protection of that property." — 2 Kent's Com. *62. "Johnson could and did, although an alien, acquire an estate in fee in the lots, by the conveyances of White and McDowell, subject only to be divested by the government upon office found. * * * "Aliens, in by purchase, must be deemed citizens in any controversy with other citizens. It is the sovereign power only where the real estate is situated that has the right to disturb the alien in his title and possession ; it is a mere matter of policy that the government may oust him, pertaining solely to the state, over which the citizen has not, nor ought he to have, any control. "Whatever title Johnson acquired to the lots by purchase, the bet- ter opinion seems to be he could convey by deed or will, and that his devisees took the same estate he had." Catron, J., in Williams v. Wilson, Mart. & Y. (Tenn.) 248, 253, 254 (1827).» SECTION 4.— CONVICTION OF CRIME RANKIN'S HEIRS v. RANKIN'S EX'RS. (Court of Appeals of Kentucky, 1828. 6 T. B. Mon. 531, 17 Am. Dec. IGl.) Owsley, J.* Reuben Rankin was charged with the murder of John Blake, and was indicted for the offense, put upon his trial, found guilty by the verdict of a jury, and sentenced to be hung by the judg- ment of the court. Between the time when the sentence of condemnation was pro- nounced, and the period fixed by the court for his execution, Rankin « See 1 Jarman on Wills, •44. "An alien may acquire lands by purchase, but not by descent; and there is no distinction, whether tlie purchase be by grant or by devise. In either event, tlie estate vests in the alien as a defeasible estate, subject to escheat at the suit of the goveninient. He has complete dominion over the estate of which he Is thus seized, until oflice found. ♦ ♦ * The ancient rule of the common law was that an alien could not maintain a real action for the recov- ery of lands, but he might, in such action, defend his title against all persons but the sovereign. It has been held, however, in North Carolina, if not in other states of the Union, that he may maintain ejectment." Judge, J., in Ilarley v. State, 40 Ala. GSO, C9.j (18G7). * Part of the opinion is omitted. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 11 departed this life, having previous to his death, but after sentence, in due and legal form, made and published his last v^ill and testament in writing, by which he disposed of all his estate. The will was after- ward presented to the county court of Bourbon for probate, by the executors therein named, and, though contested by the heirs of Rankin, it was proved and admitted to record. The heirs, being dissatisfied with the decision of the county court, have brought the case before this court for revision. . The execution of the will, by the testator, in legal form, is not con- tested by the heirs, nor do they pretend that he was not, at the date of the will, of sane mind; but it is argued by their counsel that after the testator was convicted of the murder charged against him he was civUiter mortuus, and therefore incapable of making a valid will. * * * In England, where attainder or conviction of felony works, not only corruption of blood, but also a forfeiture of the lands and goods of the offender, authority is not wanting to prove the incompetency of the attainted or convicted person to make a will; but, upon adverting to those authorities, it will be found that the incompetency of the at- tainted or convicted person to do so results exclusively from the for- feiture, which by the laws of that country follows the attainder, or conviction, as an inseparable consequence, and from the incapacity of the person attainted, or convicted, afterwards to hold any estate except for the use and benefit of the king. Thus in Shepherd's Touchstone, p. 404, it is said : "A traitor at- tainted from the time of a treason committed, can make no testament of his lands or goods, for they are all forfeited to the king, but after the time he hath a pardon from the king for his offenses, he may make a testament of his lands or goods as another man. A man that is at- tainted, or convicted of felony, cannot make a testament of his lands or goods, for they are forfeited ; but if a man be only indicted, and die before attainder, his testament is good for his lands and goods both. And if he be indicted, and will not answer upon his arraign- ment, but standeth mute, etc., in this case, his lands are not forfeited, and therefore it seems he may make a testament of them." The same doctrine is to be found in Swinb. part 11, § 13, and in Bacon's Ab. title "Wills and Testaments," letter B. And Bacon fur- ther adds : "That however the wills of traitors, aliens, felons aad out- lawed persons are void as to the king or lord, that has, right to the lands or goods by forfeiture or otherwise; yet the will is good against the testator himself, and all others, but such persons only." If, therefore, the reason and doctrine of the law be correctly laid down by these authors, it will be perceived that the validity or in- validity of the will, which was made by Rankin, must depend upon the question whether or not, by the laws of this country, he forfeited the whole of his estate, upon being convicted of the murder of Blake. If, on the conviction, the whole of his estate was forfeited, there re- 12 LAST WILLS AND TESTAMENTS. (Part 1 mained nothing which he could transmit by will to others, and of course, according to the authorities cited, his will must be held void and inoperative. But if, notwithstanding the conviction, there was not an entire forfeiture of all his estate, according to the same authori- ties, he was capable of disposing of the interest not forfeited, and as to that interest, be it what it. may, his will can have an operation, and must be adjudged valid. * * * It was, therefore, not the absolute fee-simple estate of the offender in lands and goods that, according to the Constitution, was forfeited to the commonwealth on attainder, or conviction of felony ; but it was the interest or estate, which the offender was entitled to during his life only, that by the laws in force at the passage of the act was for- feited. The reversionary interest, or, in other words, that part of the estate which remained after the death of the offender, according to those laws, resided in him after conviction, and, since the passage of the act, must, we apprehend, still be understood to continue to reside in the offender, though attainted or convicted. It results, therefore, that, notwithstanding Rankin's conviction of the murder of Blake, he retained a reversionary interest in all the lands and personal estate owned by him at the time of conviction ; so that on account of any forfeiture of his estate he cannot, according to the authorities cited, be deemed incompetent to dispose of the interest not forfeited, and still possessed by him. Nor is there anything in the nature or character of that interest which forbids its being disposed of by will. The Constitution, as well as the act of 1796, had both declared that no conviction of felony should work corruption of blood. There was, therefore, nothing either in the sentence of condemnation against Rankin, or in the nature of the interest in reversion held by him, which would have prevented that interest from descending and passing to his legal representatives, provided he had died intestate ; and the rule is well settled, that whatever is descendable is also devis- able by will. It is, therefore, the opinion of a majority of the court, the Chief Justice dissenting, that, notwithstanding the conviction of Rankin, he was capable of making a will, and that the county court was correct in admitting it to record. The order of that court must, consequently, be affirmed with cost." s See 1 .Tarman on Wills. ♦45. Local statutes should be consulted. The Rhode Island statute prohibits a oonvkt Troni making a will or conveyance during hi« imprisonment. Gen. Laws IL L 1909, p. 1309, S 53. Ch. ft) TESTAMENTARY CAPACITY AND INTENT. IS SECTION 5.— MENTAL CAPACITY SLAUGHTER v. HEATH. (Supreme Court of Georgia, 1907. 127 Ga. 747, 57 S. E. 69.) Lumpkin, J.' 1-3. The motion for a new trial contained 22 grounds. It was granted on 5 of them. The others were overruled. Both sides excepted. It was a second grant of a new trial. Several of the grounds are based on refusals to charge as requested, to the effect that, in or- der to destroy testamentary capacity, there must be "a. total depriva- tion of reason" ; that to bring about that result the testator must be non compos mentis^ and that the law defines a person non compos men- tis to be "one wholly deficient in understanding, or who by grief, sick- ness, or other accident has wholly lost his understanding"; that he must be "totally deprived of his reason"; and that, "if his mind was not totally eclipsed or entirely extinguished, he had sufficient capacity to make a will." Did the presiding judge err in refusing to give these requests in charge? Various attempts have been made to establish some arbitrary test of testamentary capacity; but they have each had to be abandoned or modified as new combinations of facts arose in later cases. At an early date the English courts entertained the view that it was not required that one should be mentally perfectly sound in order to make a will, and that a delusion not of a kind to affect the will would not render it invalid. Dew v. Clarke, 5 Russ. 163. Then they seemed to incline to a narrower view. Waring v. Waring, 6 Moore, P. C. 341, 12 Jur. 947 ; Smith v. Tebbitt, 16 L. T. R. 841. Then they returned to their original position that testamentary capacity was not the same thing as perfect sanity. Banks v. Goodfellow, 39 L. J. Q. B. 237, 22 L. T. 813, L. R. 5 O. B. 549 ; Smee v. Smee, L. R. 5, P. D. 84, 49 L. J. P. 8 ; Goods of Bailey, 31 L. J. P. 178, 4 L. T. 477 ; Murfett v. Smith, 57 L. T. 498. The American courts have generally held that perfect mental soundness did not furnish the test, but that there may be partial in- sanity, disconnected from and not affecting the making of the will, which would not render it invalid. It has sometimes been sought to apply the same test as in criminal cases. But this will clearly not answer, since "criminal capacity in- volves primarily the ability to distinguish right from wrong; while testamentary capacity involves the ability to understand the estate to be disposed of, the proper objects of botmty, and the nature of the testamentary act." Page on Wills, pp. 108-111, § 94 et seq.'' It has 8 Part only of the opinion is given, 7 But see State v. Jones, 50 N. H. 369, 9 Am. Rep. 242 (1871), and Parsons V. State, 81 Ala. 577, 2 South. 8-54, 60 Am. Rep. 193 (1886), on the true test of ^iminal capacity. See, also, 63 Am. St. Rep. 79-108, note. 14 LAST WILLS AND TESTAMENTS. (Part 1 been sometimes sought to compare capacity to contract with that to make a will. But the making of a contract with another party, where there is a consideration, a meeting of minds, an agreement to do or not to do some one or more things, may evidently involve a different amount of mental capacity from the making of a will, where the owner of property directs how it shall go after his death. Besides, it will be found that the courts have not always agreed in defining contractual capacity. Page on Wills, § 96; Gardner on Wills, 106. In some states there are statutes along this line. Our own Code declares : "An in- capacity to contract may coexist with a capacity to make a will." Civ. Code 1895, § 3268. It has been said in an early authority: "So, also, an idiot — i. e., such a one as cannot number 20, or tell what age he is, or the like — cannot make a testament or dispose of his lands or goods ; and, ilbeit he do make a wise, reasonable, and sensible testament, yet is the testament void. But such a one as is of a mean understanding only, that hath grossum caput, and is of the middle sort between a wise man and a fool, is not prohibited to make a testament." 2 Shep. Touch. 402. Some- times it has been added, in defining or describing an idiot : One who does not know his own mother and father, or cannot tell the days of the week, and the like. 1 Hale, P. C. 29 ; Swinb. pt. 2, § 4. Obviously, how- ever, these are purely arbitrary tests. All of us have most likely seen persons who did not know their ages, or who from illiteracy were unable to count, but who were far from being idiots or imbeciles. And, on the other hand. Prof. Gardner, in his work on Wills (page 112), has said that : "Doubtless a person who, with opportunities for learning these facts, does not acquire them, is an idiot ; but an ability to do and tell these simple things would not convincingly prove that the person so capable was not still an idiot." The mind grades up from zero to the intellectual boiling point so gradually that dogmatic tests are of little value. What is needed is a sensible, practical test, intelligible to a jury. Rejecting any arbitrary tests, and looking at the mental capacity necessary in the light of the thing to be done, viz., the making of a will, the courts now have gen- erally reached a fairly uniform definition of testamentary capacity, in the absence of special statutes. It is thus stated in Gardner on Wills, p. 10.0, J 31;_i'A testator has a sound mind, for testamentary purposes, /" only when he can understand and carry in mind, in a general way, the nature and situation of his property, and his relations to the persons around him, to those who naturally have some claim to his remem- brance, and to those in whom and the things in which he has been chiefly interested. He must understand the act which he is doing, and the relation in which he stands to the objects of his bounty and to those who ought to be in his mind on the occasion of making his will." In Page on Wills, p. 114, § 97, the rule is similarly, though more briefly, stated. See numerous cases cited in those text-books, and 1 Jarman on Wills (5 Am. Ed.) 94, in note B. In Rood on Wills, § 111, a like rule is laid down, and it is added : "The essential matter is power lo Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 15 remember. Failure in fact to remember all these elements does not make the will void." See, also, Underbill on Wills, § 87, and citations. In Stancell v. Kenan, 33 Ga. 56, 68, this court announced substantially the same rule, and recommended the following, or something like it, as a charge on the subject: "A person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposi- tion of property, to take effect after death, and who is capable of re- membering generally the property subject to his disposition and the persons related to him by the ties of blood and of affection, and also of conceiving, and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition." . But it is said that the words "non compos mentis" have been defined i / to mean a total want of mind or reason or understanding. Potts v. *^ House, 6 Ga. 325, 50 Am. Dec. 329. It may be observed, in passing, that one of the cases referred to in the Potts Case (Stewart's Executor V. Lispenard, 26 Wend. [N. Y.] 255) has been said to have never been received with much favor by the legal profession generally, ar^d has since been criticised and practically overruled in Delafield v. Parish, 25 N. Y. 9, *27. 1 Jarm. Wills (5th Am. Ed.) 93, in note A. And the case of Harrison v. Rowan, 3 Wash. C. C. 580, Fed. Gas. No. 6,141, also cited in the Potts Gase, lays down a rule much like that stated above. The case of Lee's Heirs v. Lee's Ex'rs, in 4 McGord (S. G.) 183, 17 Am. Dec. 722, seems to have been cited rather to show the extreme to which the South Carolina court had gone than to approve the decision. See the remarks in regard to it in 6 Ga., at the bottom of page 351. Attention is merely called to these cases, not with any desire to enter into criticism of the opinion in Potts v. House. For the writer of that opinion, it need hardly be said, the present writer entertains the profoundest respect and esteem. In Potts v. House the expression, "a mere glimmering of reason," was used as indicating tes- tamentary capacity. In Terry v. Bufiington, 11 Ga. 337, 345, 56 Am. Dec. 423, it was said that the court were informed that the language used in the previous case had been grossly misapprehended, and they were asked to explain what was to be understood from it. The court undertook to do this, and to illustrate the meaning intended; the re- sult being that it was held that, though the mind may be weak and dim, yet it will suffice if there be sufficient mental light, "by which the testa- tor is enabled to comprehend the contents of his will, the nature of the estate he is conveying to his family connection, their relative situ- ation to him, the terms upon which he stands with them, his own situ- ation, and the circumstances which surround him." This was said by the same judge who prepared the opinion in Potts v. House; and, when thus explained, it will be seen that the test of testamentary ca- pacity laid down is very close to, if not identical with, the rule above announced. See, also, Hall v. Hall, 18 Ga. 40. In Morris v. Stokes, 21 Ga. 552, a charge that the testator could will his property unless to- tally deprived of reason was held not to be error. But the charge also 16 LAST WILLS AND TEStAMENTS. (Part 1 Stated the rule practically as above expressed. Then came the case of Stancell v. Kenan, 33 Ga. 56. Then followed the Code, where sec- tions 3266-3268 (as they are numbered in the Code of 1895) read as follows : "Sec. 3266. An insane person cannot generally make a will. A luna- tic may, during a lucid interval. A monomaniac may make a will, if the will is in no way the result of or connected with that monomania. In all such cases it must appear that the testament does speak the wishes of the testator, unbiased by the mental disease with which he is affected. "Sec. 3267. Eccentricity of habit or thought does not deprive a per- son of power of making a testament. Old age, and the weakness of intellect resulting therefrom, does not, of itself, constitute incapacity. If that weakness amounts to imbecility, the testamentary capacity is gone. In cases of doubt as to the extent of this weakness, the reason- able or unreasonable disposition of his estate should have much weight in the decision of the question. "Sec. 3268. An incapacity to contract may coexist with a capacity to make a will. The amount of intellect necessary to constitute testa- mentary capacity is that which is necessary to enable the party to have a decided and rational desire as to the disposition of his property. His desire must be decided, in distinction from the wavering, vacillating fancies of a distempered intellect. It must be rational, in distinction from the ravings of a madman, the silly pratings of an idiot, the child- ish whims of imbecility, or the excited vagaries of a drunkard." In Gardner v. Lamback, 47 Ga. 133, 185, a charge to the efifect that terms "not of sound and disposing mind and memory" imported a total deprivation of reason was given, and this was held not to have been error. An examination of the charge which is reported shows that the judge fully gave the test laid down in the Code and in the Stancell Case in 33 Ga. ; but, having in his charge employed the words "non compos mentis," he then gave a request defining them. Judge McCay said (page 193): "Our Code [the Code of 1863]— sections 2372, 2373, 2374 — is in substance fairly given by the judge in his charge to the jury. Nor is the law as laid down in the Code materially different from the rulings of this court in Potts v. House, 6 Ga. 324, 50 Am. Dec. 329. To make one incapable of making a will from insanity, he must be 'non compos mentis.' There must be a 'total deprivation of reason.' However old, feeble, weak-minded, capricious, notionate he may be, if he 'be able to have a decided and rational desire as to the disposition of his property,' he is not wanting in testamentary capacity, and in making the inquiry it would seem from the very words of the Code that attention is to be given, not so much to the state of the mind as an abstract philosophical or medical question, as to its capacity for the precise thing in. hand." Since the Code and this court have laid down clearly and concisely the test of testamentary capacity practically to be applied by the jury, Gh. 3) TESTAMENTARY CAPACITT AND INTENT. IT after fully charging and explaining the law, we think it not always cal- culated to greatly aid a jury to introduce technical or Latin terms merely in order to explain them. While possibly the Code may not be materially different from the ruling in Potts v. House, when rightly understood and applied, yet confusion may be bred in this manner, if not so applied and understood. Let us illustrate. In Potts v. House, supra, it was said, in reference to testamentary capacity, that the term "non compos mentis" imported a total deprivation of reason. In Mad- dox V. Simmons, 31 Ga. 512, it was said that "mere weakness of mind, if the person be legally compos mentis, is no ground for setting aside a contract"; and in the opinion it was said that, to establish the in- capacity of a grantor, he must be shown to have been non compos mentis in the legal acceptation of the term, "which means, not a par- tial, but an entire, loss of understanding." This position has been ap- proved several times. See Nance v. Stockburger, 111 Ga. 821, 36 S. E. 100; Richardson v. Adams, 110 Ga. 425, 35 S. E. 648; Barlow v Strange, 120 Ga. 1015, 1018, 48 S. E. 344. Our Code (section 3268) declares that "an incapacity to contract may coexist with a capacity to make a will." Now, if the Code has made no change, and selections from these various sources were made and indiscriminately charged as to the meaning of "non compos mentis," it will be readily seen that a jury might be led into this rather paradoxical tangle: Total depriva- tion of reason is necessary to destroy contractual capacity; less rea- son is necessary to make a will than a deed; that is, something more than total deprivation is required to destroy testamentary capacity, or something less than no reason at all will do to make a will. Of course, this cannot be the law ; and we merely make the illustration in connec- tion with what we have said as to avoiding confusion in the charge. In Barlow v. Strange, 120 Ga. 1017, 48 S. E. 345, it was said, as to a contract, that a charge that "a person is insane when he or she is not possessed of mind and reason equal to a full and clear understanding of the nature and consequence of his or her act, in making the con- tract" was sufficient to cover a request to charge that total deprivation was necessary, and that a failure to give such a request was not ground for a reversal. If this be correct, certainly a similar ruling should be applied to a charge in regard to testamentary capacity, and no new trial should be required, where the correct test, as declared by the Code and by this court, has been fully given, because of a failure to give requests to charge which were thus covered. Even the word "imbecility" has been used to denote different grades of mental weak- ness. Compare Potts v. House, 6 Ga. 354, 355, 50 Am. Dec. 329, Mor- ris V. Stokes, 21 Ga. 571, and Civ. Code 1895, •§§ 3267, 3268. In the Code it means complete or total imbecility, with which is being con- trasted weakness of intellect less than that. The difference between "imbecility," as thus used, and "idiocy," is generally said to be that the latter is congenital, while the former arises from subsequent causes, OosT.Wiiis— 2 "^^ 18 LAST WILLS AND TESTAMENTS. (Part 1 such as old age, disease, or accident. The insanity which we have been here discussing is general insanity, not monomania or delusional insanity. We do not wish to be understood, from what we have said, as hold- ing that mere weakness of intellect will authorize juries to set aside wills, if the testator has testamentary capacity as defined by law. In cases of doubt as to this, the reasonableness or unreasonableness of the disposition may be considered. But this is only to be done as evidence bearing on the question of capacity. If the testator has sufficient ca- pacity, a jury cannot lawfully set aside the will merely because they may think it unjust or unreasonable. The law does not intrust them with any such power. Speaking of the right to make a will. Judge McCay, in Gardner's Case, 47 Ga. 133, says : "It is a precious right, and one that should be guarded with jealous care, that the aged and infirm, the weak-minded and eccentric, shall have this security for care and attention on a sickbed ; and it may be truly said, without any harsh criticism on human nature, that many a fired brain has been cooled by gentle hands, and many a deathbed cheered and watched over with kind care, which, but for this tender care of the law for this testamentary right, would have been neglected and deserted." See, also, Deering v. Adams, 37 Me. 26i, 2G9 ; 1 Underbill on Wills, § 114. Inasmuch, however, as the judge had contrasted weakness not amount- ing to incapacity with imbecility, as the Code does, we cannot say that he erred in holding that upon request he should have defined the mean- ing of imbecility as thus used, or that this, with other grounds, did not authorize the grant of a second new trial. What has been said above also disposes of the sixteenth and nineteenth grounds. The general charge covered the subject, and a new trial was not necessary on those grounds.^ 8 "A 'disposing mind' involves the exercise of so mucli mind and memory as would enable a person to transact common and simple kinds of business with that iiitellif^ence which belongs to the weakest class of sound minds ; and a dis- posing memory exists when one can recall the general nature, condition, and extent of his property, and his relations to those to whom he gives, and also to those from whom he excludes, his bounty. He must have active memory enough to l)ring to his mind the nature and particulars of the business to be transacted and montal power enough to appreciate them, and act with sense and juduMuent in regard to them. He must have suincient capacity to compre- hend the condition of his property, his relations to the persons who were or should have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to bold 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 ra- tional judgment in relation to them. * * ♦ But mere Intellectual feeble- ness must be distinguished from unsoundness of mind. The requirement of a 'sound and disposing mind' does not imply that the powers of the mind may not hyve been wenkened or impaired by old age or bodily disease. A person le incnpar-itated by age and failing memory from engaging in complex and te business, and incapable of understanding all parts of a contract and *'jf he able to give simple directions for the disposition of property by will. ■ eat age may raise doubt of capacity, so far as to excite the vigilance of the Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 19^ 4. The propounders' request to charge set out in the seventeenth ground introduced into the case the subject of the right of a testator to leave his property to strangers, to the exchision of his wife and children, and invoked a charge to that effect. If he does so, however, the will should be closely scrutinized, and slight additional evidence of aberration of intellect may serve to set it aside. Wetter v. Habersham, GO Ga. 198. But the court not only added this modification, but also gave the entire section 3358 of the Civil Code of 1895, including ref- erences to collusion, fraud, undue influence, and unfair dealing. Some- times reading an entire section of the Code will not require a reversal, although all of it may not be necessary. Brown v. State, 125 Ga. 281,. 54 S. E. 162. But we will not reverse the judge for granting a new trial on this and other grounds, when he doubtless thought it might have misled the jury, and under the evidence might have worked in- jury. 5. Some two years before the making of the will, an application was- made for an adjudication by a commission that the testator was an- imbecile, and to have a guardian appointed for him. The commission- ers .found that he was not an imbecile. The court, on the trial of the present case arising on the propounding of the will, was requested to charge the jury to the effect that such finding was conclusive that the testator was not at its date an imbecile, that the presumption was that the same state of mind continued, and that the burden was on the caveators to show a change in his mental condition. He refused to so charge, but subsequently made this one ground for granting a new trial. Whatever may be the ruling of some courts, here it has been de- cided that an "inquisition of lunacy and the appointment of a guardian consequent thereon is prima facie evidence only, and not conclusive court but it does not alone constitute testamentary disqualification." White- house, J., in Hall v. Perry, 87 Me. 569, 572, 33 Atl. 160, 161, 47 Am. St. Rep. 352- (189.5). See Winn v. Grier, 217 Mo. 420. 117 S. W. 48 (1909) ; Taylor v. Mc- Clintock, 87 Ark. 243, 112 S. W. 405 (1908) ; and a case note in 3 L. R. A. (N. S ) 172 In Wilson v. Mitchell, 101 Pa. 495 (1882), a blind man, who was over 100' years old at the time, made a will. The court said (page 503): "Dougal had lived over 100 years before he made the will and his physical and mental weak- ness and defective memory were in sti-iking contrast with their strength in the meridian of his life. He was blind ; not deaf, but hearing impaired ; his mind acted slowly, he was forgetful of recent events, especially of names, and repeated questions in conversation ; and sometimes, when aroused from sleep or slumber, would seem bewildered." Yet he was held to have died testate. "This court in Campbell v. Campbell, 130 111. 466, 22 N. E. 620, 6 L. R. A, 167 (1889), held that, to constitute a sound and disposing mind, it is not neces- sary that the mind should be wholly unbroken, unimpaired, and unshattered by disease or otherwise, or that the testator be in possession of all his reason- ing faculties ; that a man may be competent to make a disposition of his prop- erty by will where it is simple and easy of comprehension and at the same time- be incompetent to make a will which involves a very large estate and the con- sideration of the natural claims of a large number of relatives. Clearly, by reason and authority, therefore, each case must be largely judged in connection with its own special facts, circumstances, and surroundings." Carter, J., irt; Drum V. Capps, 240 111. 524, 542, 88 N. E. 1020, 1025 (1909). ^: 20 LAST WILLS AND TESTAMENTS. (Part 1 against third persons, who were not parties to it.** Field v. Lucas, 21 Ga. 447, 68 Am. Dec. 465. This was a case involving testamentary capacity. * * ♦ The court did not err in refusing the charge requested." * * * Judgment on the main bill of exceptions affirmed ; on the cross-bill, reversed in part. All the Justices concur, except Fish, C. J., absent, and Beck, J., disqualified. HOPKINS et al. v. WAMPLER. (Supreme Court of Appeals of Virginia, 1908. 108 Va. 705, 62 S. E. 926.) Whittle, J.^° The plaintiffs in error, J. H. Hopkins and Susannah Hildebrand, proponents of a paper writing purporting to be the last will of Amanda E. Miller, deceased, bring error to the final sentence and judgment of the trial court approving the finding of the jury, on an issue devisavit vel non, that said paper was not, nor was any part thereof, the true last will of Amanda E. Miller. The sole question submitted to the jury was the testamentary ca- pacity of the testatrix, and the principal error assigned relates to the ruling of the court in the matter of the degree of proof which rested upon the proponents on the trial of that issue. The instruction complained of told the jury "that a party who seeks to set up a will must prove by a preponderance of evidence that the paper offered for probate is the true will of a capable testator, and that nothing short of clear and convincing evidence will suffice ; and, unless the jury believe that it has been established by clear and convincing evidence that Amanda Miller was a capable testatrix at the time of the execution of the paper, * * * they must find a verdict against the same." The unqualified language of this instruction, which wholly omits the presumption in favor of sanity and announces the proposition that the » "The fact that one Is under gruardianshlp as an insane person is not con- clusive asainst his capacity to make a will while the guardianship continues. But it does not follow from this that the dismissal on the merits of an apiili- mtlon for the appointment of a guardian of one as an insane person Is conclu- sive in favor of his capacity to make a will. • • • The ground of appoint- ing a guardian of a person as insane is that, by reason of mental weakness or distraction, or both, he is incapable of taking care of himself; and the ob- ject of it is to secure proper care of his person and property. • • * A man may bo insane on some subjects and not on others. He may be insane on one snbjof't and sane on all others. His insanity may be of such a character, and run along snrh a line, as in no wise to affect his capacity to take care of him- self and his property. The insanity last mentioned would not warrant the af)- pointment of a guardian over him, as itwould not constitute the statutory cause for the api)olntment, and yet it might consist of such a delusion In respect of a disinherited child as to defeat a will that was the direct offspring of the par- tial Insanity." Rowell. J., in Mauley's Ex'r v. Staples, 62 Vt 153, 155, 19 Atl. 983. r)S4. 8 L. R. A. 707 (1890). 10 Part only of the opinion is given. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. burden of proving testamentary capacity by clear and convincing tes- timony is upon the proponents, is not in harmony with the estabUshed rule on that subject, and was calculated to mislead the jury. It is true that in probate proceedings the court or jury must be sat- isfied, not only that the will has been executed in accordance with the statute, but also that it is the last will of a free and capable testator. Yet in general the latter is presumed when the due execution of the will is proved. 2 Min. Inst. (2d Ed.) pp. 939, 940; Wallen v. Wallen, 107 Va. 131, 57 S. E. 596. In Burton v. Scott, 3 Rand. 399, Judge Carr, in discussing the rules of evidence which govern questions of insanity in cases of probate, ob- serves: "I understood the counsel for the appellants [the contestants] to lay it down, as a general rule, that it was incumbent on the devisee claiming under a will to prove the sanity of the testator; that the onus was upon him in every question of this sort. Taken in this lati- tude, I do not consider the position correct. The natural presump- tion is that every man is sane and competent to make a will, and this presumption must stand until destroyed by proof on the other side. To say that insanity must be presumed until sanity be proved would seem to be saying that insanity is the natural state of the human mind." Temple v. Temple, 1 Hen. & M. 476; Porter v. Porter, 89 Va. 118, 15 S. E. 500 ; Wallen v. Wallen, supra. Where, however, the sanity of the testator is put in issue by the evi- dence of the contestant,Jhe onus proband! lies upon the proponent to satisfy the court or jury that the writing propounded is the will of a ■^pable testator. Yet, upon the trial of that issue, there is an existent presumption in favor of the testator's sanity. Indeed, of such force is that presumption in our jurisprudence that though one be on trial for a felony, involving life or liberty, when the defense of insanity is relied on, it must be proved to the satisfaction of the jury. . In Wallen v. Wallen, supra, the doctrine is thus formulated : "The burden of proving testamentary capacity is on the propounder of a will, but, when a will is offered for probate and it is shown that all the stat- utory formalities have been complied with, and especially when it appears that the will is wholly in the handwriting of and is signed by the testator, there is a presumption of testamentary capacity. There is, indeed, a presumption in favor of the sanity of every man until evidence that he is of imsound mind is introduced." On the question of the quantum of proof of testator's sanity, the court approved an instruction that it must be estabhshed by "a pre- ponderance of testimony" rather than by ''clear proof." "" In the leading case of Riddell v. Johnson's Ex'r, 26 Grat. 152 (a suit in equity to set aside a bequest to testator's attorney who wrote the will), the court upon a review of the authorities in this country and in England, at page 177, quotes with approval the rule laid down by Baron Parke in Barry v. Butlin, 1 Curt. Ecc. R. 637 : "That the ji.-- 22 LAST WILLS AND TESTAMENTS. (Part 1 onus proband! lies in every case upon the party propounding a will ; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator." It was suggested in the argument of the case in judgment that a higher degree of proof of testamentary capacity was required in Tuck- er V. Sandidge, 85 Va. 546, 8 S. E. 650, Chappell v. Trent, 90 Va. 849, 19 S. E. 314, and Gray v. Rumrill, 101 Va. 512, 44 S. E. 697. In those cases, it is true, the court does say that "nothing short of clear and convincing evidence will sufifice," or that the proof must be "clear and convincing." But to sustain that proposition Tucker v. Sandidge cites Riddell v. Johnson. Chappell v. Trent refers to no authority, and Gray v. Rumrill cites the two former cases. So it will be observed that these cases rely upon Riddell v. Johnson, and, while they change the phraseology of the rule, it is not believed that it was intended to modify the well-settled doctrine of the degree of proof re- quired in that class of cases. We conclude on that branch of the case (testatrix's sanity having been drawn in question) that the burden of proving her sanity at the time of the execution of the alleged will to the satisfaction of the jury rested upon the propounders; and in determining that question the jury should also have taken into consideration the presumption in favor of testatrix's sanity. * * * Upon these considerations we are of opinion that the sentence and judgment of the trial court should be reversed, the verdict of the jury set aside, and the case remanded for a new trial to be had not in con- flict with this opinion. Reversed.^^ 11 On the burden of proof of testamentary capacity, see 17 L. R. A. 494, note ; 6 Am. Prob. Rep. 177, note. The difference of views relates to the duty of going forward with evidence. 4 Wigmore on Evidence, § 2500. In Swvgart v. Wilhird, 16G Ind. 25, 33, 34, 76 N. E. 755, 759, 7G0 (190G), the -court sustained an instruction stating, among other things, that "a monomaniac is a person who is deranged in a single faculty of his mind or with regard to a particular subject only," and that "you may find that the testator in this case was alllicted with monomania, or with delusions, or any form of mental unsoundness ; but it must further appear by a preponderance of the evidence in this case that such unsoundness of mind entered into and affected the pro- visions of the will in controversy before you can find that the testator was of unsound mind with reference to the will in controversy." In Will of Dardis, 135 Wis. 457, 115 N. W. 332. 23 L. R. A. (N. S.) 783, 12S Am. St. Rep. 1033 (1908), it was held that a wUl was properly admitted to probate on the testimony of the subscribing witnesses, although all the heirs and next of kin of the decedent and all the beneficiaries named in the will en- tered into a stipulation to the effect that the decedent was mentally incompe- tent and agreed that probate of the will should be denied. In the L. R. A. (N. S.)#report will be found a case note on the validity and effect of such a stipul/t4on. See, also, on the validity and enforceability of agreements to dis- pens^with the probate of a will, 15 Am. & Eng. Ann. Cas. 742, note. On the relatJd question of the validity of agreements to contest or defeat the probate jiill, see IG L. R. A. (N. S.) 23G. note; 15 Am. & Eng. Ann. Cas. 300, note, validity of a contract not to contest the probate of a will, see 13 L* R. A. 484, note. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 23 OWEN V. CRUMBAUGH et al. (Supreme Court of Illinois, 1907.^ 228 111. 380, 81 N. E. 1044, 119 Am. St. Rep. 442.) ViCKERS, J.^^ * * * In fact, it is conceded by contestants that the testator was sane on all subjects except Spiritualism. Aside from this, the evidence proves, beyond a reasonable doubt, that in all the relations and affairs of life the testator was entirely rational, and acted with that judgment, prudence, and foresight usually exercised by care- ful and successful business men. He was able to amass a large fortune for a man engaged in his line of business, and to invest and manage it so as to avoid losses and preserve it intact until the day of his death. The only basis to be found in this record for questioning the testa- mentary capacity of the testator is the fact that the testator was a be- liever in Spiritualism and the claim that this belief amounted to an in- sane delusion, under the influence of which the testator made the will in question. It must be admitted, under the proofs here, that the tes- tator was an ultraist regarding all of the doctrines embraced in the articles of faith of the Spiritualist association ; but that there is any evidence in this record of insanity or insane delusions, which cannot be accounted for by reason of Crumbaugh's belief in Spiritualism, cannot be maintained. Under the law of Illinois every person of req- uisite age, being of sound mind and memory, has the power to devise all of his property in any way he may elect; and when the validity of a will is challenged on the ground that the testator did not possess the requisite testamentary capacity, the ultimate and final question is, did the testator, at the time when the instrument was executed, possess the sound mind and memory required by section 1 of our statute of wills? Courts and text-writers have often considered the question of what is and what is not a proper test of testamentary capacity. In Campbell V. Campbell, 130 111. 466, 22 N. E. 620, 6 L. R. A. 167, this court, after an extensive review of many authorities in this and other jurisdictions, laid down the following test : "The true inquiry in every case, there- fore, is, did the person whose testamentary capacity is questioned, have, at the time of making his will, such mind and memory as enabled him to understand the business in which he was then engaged and the ef- fect of the disposition made by him of his property? If he did, he was possessed of.the sound mind and memory required by the statute ; and all degrees of impairment of the mental faculties, or dementia, whether senile or produced by other cause, which destroy the testamentary capacity, will disqualify, whether it has reached the stage -of absolute imbecility or not." Any mere mental aberrations resulting in the sub- normal exercise of the faculties, which do not result in such impair- 12 Part only of tlie opinion is given. 24 LAST WILLS AND TESTAMENTS. (Part 1 ment of the reason, judgment, and memory as to render a testator un- able to understand the business of making a will and the effect of the disposition to be made of his property, ^ill not vitiate the will. The existence of delusions or delusional insanity is recognized, both by scientists and legal writers, as a form of insanity which, when shown to have existed in the testator at the time the will was executed and to have controlled its execution, will avoid the instrument. The existence of insane delusions on one subject is not incompatible with sanity on all other subjects. Contestants' position in the case in hand is that the testator was sane on all subjects except Spiritualism, as to which it is contended he had an insane delusion within the legal meaning of those terms, and that the will in question was the result of such insane delu- sions, and is therefore void. It therefore becomes necessary to examine with some particularity whether, under the evidence, such contention can be sustained. An insane delusion which will render the sufferer incapable of mak- ing a will is difficult to define with exact precision. A delusion is said to be a belief in a state or condition of things the existence of which no rational person would believe. In re Forman, 54 Barb. (N. Y.) 274 ; Prather v. McClelland, 76 Tex. 574, 13 S. W. 543 ; Schneider v. Man- ning, 121 111. 376, 12 N. E. 267. A delusion has also been defined as "a. spontaneous conception and acceptance as a fact of that which has no real existence except in imagination, and persistent adherence to it against all evidence." Smith v. Smith, 48 N. J. Eq. 566, 25 Atl. 11 ; Rush V. Megee, 36 Ind. 69 ; Philadelphia Trust and Sav. Dep. Co. v. Drinkhouse, 17 Phila. (Pa.) 23. Again, the same definition, in sub- stance, is given in Potter v. Jones, 20 Or. 239, 25 Pac. 769, 12 L. R. A. 161, as follows: "A conception that originated spontaneously in the mind, without evidence of any kind to support it, which can be ac- counted for on no reasonable hypothesis, having no foundation in reality, and springing from a diseased or morbid condition of the mind." Another form of definition, conveying substantially the same meaning, is given in Middleditch v. Williams, 45 N. J. Eq. 726, 17 Atl. 826, 4 L. R. A. 738, and is as follows: "If, without evidence of any kind, a testator imagines or conceives something to exist which does not exist in fact, and which no rational person would, in the absence of evidence, believe to exist, he is afilicted with an insane delusion." "Whenever a person conceives something extravagant to exist, which has no existence whatever but in his heated imagination, and is in- capable of being permanently reasoned out of that conception, he is under an insane delusion in a peculiar, half-technical sense of the term." Mullins v. Cottrell, 41 Miss. 291; Benoist v. Murrin, 58 Mo. 307; Stanton v. Wetherwax, 16 Barb. (N. Y.) 259. A person who believes supposed facts, which have no existence except in his perverted imagi- nation, and which are against all evidence and probability, and con- ducts himself, however logically, upon the assumption of their exist- ence, is, so far as they are concerned, under an insane delusion. In Ch, 3) TESTAMENTARY CAPACITY AND INTENT. 25 re Shaw, 2 Redf. Sur. (N. Y.) 107; In re White, 121 N. V. 406, 24 N. E. 935. In setting out these various definitions, we do not do so with the pur- pose of giving our approval to each of them, but merely to show the different forms of expression that courts have used to express the legal conception of an insane delusion. Whatever form of words is chosen to express the legal meaning of an insane delusion, it is clear, under all of the authorities, that it must be such an aberration as in- dicates an unsound or deranged condition of the mental faculties, as distinguished from a mere belief in the existence or nonexistence of certain supposed facts or phenomena based upon some sort of evidence. A belief which results from a process of reasoning from evidence, how- ever imperfect the process may be or illogical the conclusion, is not an insane delusion. An insane delusion is not established when the court is able to understand how a person situated as the testator was might have believed all that the evidence shows that he did believe and still have been in full possession of his senses. Thus, where the testator has actual grounds for the suspicion of the existence of something in which he believes, though in fact not well founded and disbelieved by others, the misapprehension of the fact is not a matter of delusion which will invalidate his will. Stackhouse v. Horton, 15 N. J. Eq. 203 ; Pot- ter V. Jones, supra ; Martin v. Thayer, 37 W. Va. 38, 16 S. E. 489 ; Muilins V. Cottrell, supra. The case of Wait v. Westfall, 161 Ind. 648, 68 N. E. 271, is an in- structive case on this phase of the doctrine of insane delusions. There the testator believed that he could locate hidden treasure by means of a small metallic ball suspended on a thread. He spent a great deal of his time in going over the fields trying to locate the hidden metallic treas- ure, and holes were dug in so many places that they became a nuisance and had to be stopped. It was shown that a silver dollar hid under the carpet in a room could be located by the peculiar vibrations of the metallic ball when it was suspended over the silver dollar, and this cir- cumstance offered some basis for the testator's belief that he could locate money buried in the ground by the same means, and the fact that there was this basis for the testator's belief, however erroneous or mistaken the conclusion drawn therefrom, distinguished the belief from an insane delusion. It is true that the bare fact that the metallic ball would indicate, by certain vibratory motions, where a silver dollar was, might be by most persons regarded as a very trifling circumstance up- on which to predicate a belief that one could find treasure hidden in the earth in the same way ; but it serves to show that the belief was not a spontaneous creation of a deranged mind. The following excerpt of the opinion of Mr. Justice Hadley in this case is pertinent to the question now under consideration: "What tribunal occupied by finite beings is qualified to adjudge false asserted forces of attraction and magnetism or the phenomena of mind, because incapable of demonstration, or that certain supernatural powers and in- 26 LAST WILLS AND TESTAMENTS. (Part 1 Alienees do not exist, because not in accord with an assumed standard of mental action ? In all the ages of the world instruments and devices have been employed in locating minerals in the earth. The fact is no- torious that there are many intelligent, conservative persons who claim the power of locating water in the earth by means of a forked stick, and thousands of wells located by them have been dug and are still being dug. It is equally a matter of common report that such a stick will point downward at particular places in the hands of some men, and not in the hands of others. Many scholars and successful business men sincerely believe in Spiritualism, and of being able, not by all, but through the instrumentality of a few naturally qualified persons called 'mediums,' to converse with and be advised by the spirits of departed friends, and believe they recognize the voices and handwriting of the dead. Mental phenomena are as various as the hues of the autumnal forest. In Chafin's Will, 32 Wis. 564, it is said: 'Dr. Carver, a very intelligent medical witness, who had been in the Western mines, testi- fied : "I have seen hundreds of men in the mountains, who came there on dreams, including lawyers, doctors, and priests. * * * Business men here in Monroe have been and searched for minerals under the direction of clairvoyants." ' Others believe in Christian Science, others in clairvoyance, others in the transmigration of souls, and others in witchcraft. To affirm or deny the truth of these things proves nothing, and demonstrates the individual to be neither a sage nor a fool. Who shall be the judge whether the mind that accepts or reflects them is the truly sane mind? If we affirm that witches do not ride broomsticks and practice their evil arts upon us, and that there are no witches, then we have Blackstone, the father of our common law. Chief Justice Mathew Hale, Coke, Sir Francis Bacon, Richard Baxter, John Wesley, Martin Luther, Cotton Mather, and a host of other eminent jurists and savants, against us ; encyclopedias ; Nevin's Witchcraft in Salem Vil- lage; Upham's Salem Witchcraft; Campbell's Lives of the Chief Jus- tices, vol. 2. Early in the history of our jurisprudence much difficulty, for the reason above suggested, was experienced by the courts in fixing a standard of intellect by which testamentary capacity cotikl be deter- mined, and legislative bodies were not inclined to relieve the courts of their embarrassment. For instance, our statute for more than a half century has provided that all persons, except infants and persons of unsound mind, may make a will. Similar statutes have long prevailed in other states of the Union and in England. In construing these stat- utes the courts of both this country and England were at first disposed to hold that any mind possessed of an eccentricity, aberration, or er- ratic trend, such as amounted to an insane delusion, was not a sound mind within the meaning of the statute, and hence incapable. This doc- trine has long since been repudiated by the courts of England, and for the most part, at least, by the courts of this country — certainly by th's state since Tecgarden v. Lewis, 145 Ind. 98, 40 N. E. 1047, 44 N. E. 9. Under the law as now settled, capacity is not determined by what one Ch. 3) TESTAMENTAPwT CAPACITY AND INTENT. 27 believes, nor by the character of the horrid tales he can tell. The test is, does there remain in the subject an untrammeled intellect, sufficiently strong and rational to know the value and extent of his property, the number and names of those who are the natural objects of his bounty, their deserts with reference to their conduct and treatment toward him, and memory sufficient to carry these things in mind long enough to have his will prepared and executed. See cases collected in Teegarden V. Lewis, 145 Ind. 98, 103, 40 N. E. 1047, 1048, 44 N. E. 9." In the late case of Scott v. Scott, 212 111. 597, 72 N. E. 708, we held that a belief in Swedenborgianism and an enthusiasm manifested in propagating that faith furnish no evidence of monomania, insane de- lusion, or insanity. There the testator devised the greater portion of his property to a corporation which was organized for the sole object of printing, publishing, and circulating the theological works and writings of Emanuel Swedenborg, and the only evidence of delusion was the belief of the testator in the teachings of the so-called Swedenborgian Church. In disposing of that contention this court said (page 603 of 212 III, page 710 of 72 N. E.) : "The great majority of civilized human beings believe in the existence of a life beyond the grave. Based upon that belief, many religious creeds, differing widely, have been estab- lished. The fact that an individual holds any particular belief in regard to a future state of existence cannot, of itself, be evidence of an insane delusion or monomania. An insane delusion is a belief in something impossible in the nature of things, or impossible under the circum- stances surrounding the afflicted individual, and which refuses to yield either to evidence or reason. Riggs v. A. H. M. Society, 35 Hun, 656 ; State V. Lewis, 20 Nev. 333, 22 Pac. 241; Rush v. Megee, 36 Ind. 80. We have heretofore said that 'insane delusion consists in the be- lief of facts which no rational person would have believed.' Nice- wander v. Nicewander, 151 111. 156, 37 N. E. 698; Schneider v. Man- ning, 121 111. 376, 12 N. E. 267. Such a delusion does not exist un- less it is one whose fallacy can be certainly demonstrated ; for, except such demonstration can be made, it cannot be said^that no rational per- son would entertain the belief. Consequently no creed or religious be- lief, in so far as it pertains to an existence after death, can be regarded as a delusion, because there is no test by which it can be tried and its truth or falsity demonstrated. Gass v. Gass, 3 Humph. (Tenn.) 278 ; Buchanan v. Pierie, 205 Pa. 123, 54 Atl. 583, 97 Am. St. Rep. 725 ; Orchardson v. Cofield, 171 111. 14, 49 N. E. 197, 40 L. R. A. 256, 63 Am. St. Rep. 211." Tested by the rules laid down in the foregoing authorities, it is clear that the testator in the case at bar was not the victim of an insane delu- sion, within the meaning of the law. In the light of these authorities let us examine the occurrences which contestants rely on as showing that the testator was controlled by an insane delusion. Take, for ex- ample, the fact that the testator said that his brother and sister-in-law caused the death of his only child. The evidence explained what the 28 LAST WILL8 AND TESTAMENTS. (Part 1 testator meant. The child was being fed from the milk of a cow be- longing to the testator's brother. It is not denied that the owner of the cow took it away from the testator's home without his consent, thereby making it necessary to feed the child upon the milk of another cow. It is not denied that the child sickened and died after the change in its food. Who would say that there was no evidence whatever for the charge that the taking away of the cow was the cause of the baby's death? It is a matter of common knowledge that physicians and care- ful mothers exercise great care in changing the food for infants, and the fact that the testator may have believed that the change from the milk of one cow to that of another was the cause of the sickness and death of his child has some reason in it. If there had been no such cir- cumstance as the child being fed upon the milk of this particular cow, and the whole matter were a figment of pure imagination, then there might be some reason for saying that it originated in a disordered brain. But such is not the proof. It makes no difference, with this view, that the testator believed that the facts in relation to the death of his child had been revealed to him by spiritual communication. There is nothing connected with this circumstance showing that the testator's belief in regard to spiritual communication was any different from the belief of Spiritualists in general. The preservation of the testator from threatened harm in connection with the blowing of the stump, the burning of the brush, and his falling near a step are other occurrences which illustrate how, in the mind of the testator, he connected events in his experience with his belief in Spiritualism. His belief in Spir- itualism led him to account for his preservation from harm by means of spiritual guidance, while another person no more rational than Crumbaugh, but who did not believe in Spiritualism, would account for the same phenomena in some other way. The testator did not imagine that he was in a field, and that there was a person there blowing out stumps with dynamite, and that a piece of the stump was thrown in such a way that it would have struck him if he had not shifted his position; but there was, in fact, such a field, and in it were stumps which were being blown out, and the testator was there when an explosion of dynamite occurred, and it is testified to by the witness that a piece would have struck the deceased if he had not shifted his position just before the explosion. Now, all that is left of the transaction which is not susceptible of proof is the fact that the testator believed that he was led to shift his position by his guiding spirit. To hold that this is evidence of an insane delusion, when reduced to its last analysis, is to hold that a belief in Spiritualism is, in and of itself, an evidence of insanity, and that no one who be- lieves in the articles of faith as promulgated by that organization is competent to make a valid testamentary disposition of his property. There is not in this record a scintilla of evidence of insane delusions in the testator outside of the bare fact that he believed in the general Ch. 3) TBSTAMENTAKY CAPACITY AND INTENT. 29 doctrine of the Spiritualist organization. This is not insanity, and it is no evidence of a want of testamentary capacity. In Whipple v. Eddy, 161 111. 114, 43 N. E. 789, this court passed on the question whether a mere belief in Spiritualism was evidence of in- sanity. It was there said (page 122 of 161 III, page 792 of 43 N. E.) : "The fact that a person is affected with insanity or labors under some delusion, believes in witchcraft, clairvoyance, spiritual influences, pre- sentiments of the occurrence of future events, dreams, mind reading, etc., will not affect the validity of his will on the ground of insanity. 1 Redfield on Wills 79, note 9 ; Chafin Will Case, 32 Wis. 557 ; In re Smith, 52 Wis. 543, 8 N. W. 616, 9 N. W. 665, 38 Am. Rep. 756; Brown v. Ward, 53 Md. 376, 36 Am. Rep. 422. Manifestly, a man's belief can never be made a test of sanity. When we leave the domain of knowledge and enter upon the field of belief, the range is limitless, extending from the highest degree of rationality to the wildest dream of superstition, and no standard of mental soundness can be based on one belief rather than another. What to one man is a reasonable be- lief is to another wholly unreasonable, and while it is true that belief in what we generally understand to be supernatural things may tend to prove insanity under certain circumstances, it is a well known fact that many of the clearest and brightest intellects have sincerely and honestly believed in Spiritualism, mind reading," etc. If it be said that the testator believed that Bright Eyes and the spirits of other deceased friends appeared and held communication with him, in and out of the seance room, that the .testator believed in spiritual photography, and that he had pictures of deceased persons made in this way, it may be replied that there is in this no departure from the usually accepted faith 'of the Spiritualistic organization, as shown by the articles of faith testified to by Dr. Warne, whose testimony is wholly uncontradicted. It may be said that the testator believed that his son, who died in infancy, had grown to manhood in the spirit land, and that there is no evidence that Spiritualists believe in progression or growth after death. This point is not available to contestants, since proponents asked Dr. Warne to state the belief of his association on this point, and the contestants objected and the objection was sustained. Contestants will not be permitted to profit by the absence of evidence which was excluded on their objection. * * * Proponents requested the court to direct a verdict in their favor, which was refused. If there was evidence requiring the court to sub- mit the case to the jury, the refusal of the request was not error. If, upon the whole case, there was evidence fairly tending to support con- . testants' bill, the motion was properly denied. After giving this case the careful examination which its importance requires, we are firmly convinced that there is no evidence here even raising a suspicion in our minds that the testator was not entirely sane and as competent to make a will or transact any other kind of business as the average business man. We have examined the evidence with great care, and when it 30 LAST WILLS AND TESTAMENTS. (Part 1 is all summarized and reduced to its final results it only proves that Crumbaugli was a believer in Spiritualism; that he thought that he was doing a philanthropic work for his friends in Leroy by leaving this estate to establish this [Spiritualist] church and library; and, however much one may differ from him as to the advisability of such a devise that has nothing to do with the legal status of the will. If the testator had the capacity to make the will, he had the capacity to select the beneficiaries. This he has done, and there the matter must rest. The court erred in refusing to direct a verdict for proponents, for which the decree must be reversed, which is accordingly done, and the cause remanded to the circuit court, for further proceedings not in- consistent with the views herein expressed. Reversed and remanded.^' 13 "The testator's belief in Spiritualism was not a morbid fancy, rising spon- taneously in his mind, but a conviction produced by evidence. The proofs show that, when he first commenced attending what are called 'seances,' he was in- clined to be skeptical ; afterwards his mind seemed to be in an unstable con- dition — he sometimes believed and at others doubted — and that it was not until the spirits gave an extraordinary exhibition of their power, by printing or painting on a pin, worn by his mother-in-law on her neck, in brilliant letters, which sparkled like diamonds, the word 'Dickie,' a pet name of his dead wife, that his last doubts as to the reality of the manifestations were removed. Be- lieving, as I do, that these manifestations were correctly described by Vice Chancellor Giffard in Lyon v. Home, L. R. 6 Eq. 655, G82, when he called them 'mischievous nonsense, well calculated, on the one hand, to delude the vain, the weak, the foolish, and the superstitious, and, on the other, to assist the projects of the needy and of the adventurer,' still it seems to me to be en- tirely clear that it cannot be said that a person who does believe in their reality is, because of such belief, of unsound mind, or subject to an insane delusion. No court has as yet so held." The Vice Ordinary, in Middleditch V. Williams, 45 N. J. Eq. 726, 735, 17 Atl. 826, 4 L. R. A. 73S (1889). "It does not follow, however, that one may not have such a faith in spir- itualism as to destroy his testamentary capacity. He may think so continually and persistently upon this subject, as upon many other subjects, as to become " a monomaniac, incapable of reasoning, where this subject is concerned. In that case it should be said that a will made in consequence of such mono- mania is void for lack of testamentary capacitv. Orchardson v. Cofield, 171 111. 14, 49 N. E. 197, 40 L. R. A. 256, 63 Am. St. Rep. 211 (1897). So. too, a be- liever in Spiritualism may have such extraordinary confidence in Spiritualistic comnmnications — whether those communications reach him through mediums or are received by him as he believes directly — that he is impelled to follow them blindly and implicitly, his free agency is destroyed, and he is constrained to do against his will what he is unable to resist. A will made under such cir- cumstances is obviously not the will of testator, and is therefore not admissi- ble to probate. We need not speculate as to the ground upon which this con- clusion rests. It is utterly unimportant whether it rests upon the ground of absence of testamentary capacity, or, as held by the trial court, ujion the ground of undue influence." Carpenter, C. J., in 6'Dell v. Goff. 149 ;\Iich. 152, 158, 112 N. W. 730, 738, 10 L. R. A. (N. S.) 989, 119 Am. St. Rep. 662 (1907). On the undue influence of Spiritualism, see 63 Am. St. Rep. 93. 94, note. For a discussion of testamentary capacity as affected by belief in spiritualism, see 10 Am. & Eng. Ann. Cas. 617, note; 5 Prob. Rep. Ann. 226, note; 8 Prob. Rep. Ann. 4.5.5. note; 13 Prob. Rep. Ann. 68, note; 16 L. R. A. 677, note; 15 L. R, A. (N. S.) 674, note. For the effect on testamentary capacity of a belief In metempsychosis, see Bonard's Will, 16 Abb. Prac. (N. S.) 128 (1872) ; in Swedonborgianism, see Scott V. Scott. 212 HI. .597, 72 N. E. 708 (1904) ; in faith cure, see Taylor v. Trich, 165 Pa. 586, 30 Atl. 10.53, 44 Am. St. Rep. 679 (1895) ; in Christian Science, see Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 31 SECTION 6.— FRAUD AND UNDUE INFLUENCE " WILKINSON V. JOUGHIN. (High Court of Chancery, 1806. L. R. 2 Eq. 319.) William Thompson, who died in July, 1864, by his will dated the 20th of May, 186-i, devised and bequeathed all his real and personal estate to the plaintiff and the defendant Joughin, whom he also ap- pointed executors, upon trust "to permit my wife, Adelaide, to receive from my death the net annual income thereof during her life." And after her death the testator directed his trustees to sell his real estate, and to convert and get in his personal estate, and to invest the moneys to arise in trust for the benefit of his children; but if no child of his should attain the age of twenty-one, or be married, then upon trust to pay certain legacies; and as to the residue, "In trust for my stepdaughter, Sarah Ward, for her absolute use. But in In re Brush's Will, 35 Misc. Rep. G89, 72 N. Y. Supp. 421 (1901) ; in Spiritu- alism and Christian Science, s^e Trubey v. Richardson, 224 111. 136, 79 N. E. 592 (1906). X. V- T, A ooo For discussions of mental capacity in general, see 5 Prob. Rep. Ann. ds^ note ; Id., 224, note ; 2 Prob. Rep. Ann. 352, note ; 63 Am. St. Rep. 94-99, note. On aversion to relatives as affecting mental capacity to make a valid will, see 117 Am. St. Rep. 582, note. And see Fulton v. Freeland, 219 Mo. 494, 118 S. W 12 (1909). On suicide as evidence of testamentary incapacity, see 24 L. R. A. 577, note ; 4 Wigmore on Evidence, § 2500. On drunkenness and morphin- ism as affecting testamentary capacity, see 39 L. R. A. 220, note; Id., 202, note ; 6 Prob. Rep. Ann. 200, note ; 2 Am. Prob. Rep. 526, note. On monomania as affecting testamentary capacity, see 1 Prob. Rep. Ann. 377, note. See, also, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 (1908). 14 "Lord Cranworth appears * * * to have regarded, fraud as a spe- cies of undue influence. It is a mere question of terms ; but by the rules of pleading established in this court since December, 1805, fraud, which includes misrepresentation, is the subject of a separate plea, and undue influence as a term used in a plea in this court raises the question of coercion, and that only." Lord Penzance in Parfitt v. Lawless, L. R. 2 P. & D. 462, 470, 471 (1872). "In strictness, 'undue influence' and 'fraud' are distinguishable. In one case the mind of the testator is so overmastered that another will is suhstitnted for his own. In the other he is in a sense a free agent, but is deceived into acting upon false data [citations]. But more often than otherwise it is a mere question of terms. Something sinister is involved, which perverts the tpsta- tor's will by overcoming his power truly to express his real desires." Burch, J in Ginter v. Ginter, 79 Kan. 721, 735. 736, 101 Pac. 634, 640, 22 L. R. A. (N. S.) 1024 (1909). See, also, In re Snowball's Estate (Oal.) 107 Pac. 598 (1910). "There is no doubt that undue influence may be exerted upon a testator, either by fraudulent means or devices or by physical or moral coercion prac- ticed upon him without any actual deception." Sheldon, J., in Whitcomb v. Whitcomb (Mass.) 91 N. E. 210 (1910). For discussions of undue influence as affecting the validity of wills, see 21 Am. St. Rep. 94, note ; 31 Am. St. Rep. 670, note ; 6 Prob. Rep. Ann. 300, note ; 5 Am. Prob. Rep. 589, note. On the admissibility of declarations of testator, not made at the time of the execution of the wUl, on questions of undue influ- ence, see notes in 5" Am. & Eng. Ann. Cas. 608, and in 10 Am. & Eng. Ann. Cas. 600. ^ \0 ^ 32 LAST WILLS AND TESTAMENTS. (Part 1 case she shall die without leaving issue, upon trust to pay the same moneys to John Wilkinson and my cousin, Anne Hammond, in equal shares. I direct that my wife shall out of the income of my said estate maintain, educate, and bring up my children until the age of twenty- one years (but my trustee shall not be obliged to see this direction ful- filled), and that she shall receive and enjoy such income as her separate estate, without the control or interference of any future husband, and her receipt to be, notwithstanding coverture, an effectual discharge for the same." The testator left no issue him surviving. The, bill alleged that on the 15th of October, 1849, Thomas Ward and Adelaide Ward (then Rowntree) were married at Great Grimsby, and that the defendant Sarah Ward was a child of that marriage ; and that on the 20th of May, 1863, the defendant Adelaide Ward and the testator went through the ceremony of marriage at Liverpool — the defendant Adelaide Ward having represented herself to the testator as, and he having believed her to be, a widow — the defendant Thomas Ward, her husband, being then, and in March, 1865, when the bill was filed, alive. The plaintiff submitted to the judgment of the court, whether the defendant Ade- laide Ward, or the defendant Thomas Ward, her husband, in her right, could take any interest under the will ; and also what interest (if any) the defendant Sarah Ward took under it; and prayed that the trusts might be performed by the court, and for a declaration as to the rights of all persons interested under the will, and for an account and in- quiries. The evidence, in the view taken of it by the court, sustained the conclusion that the misrepresentation by Adelaide Ward was wilful. Sir John Stuart, V. C. In my opinion the bequest in favor of Adelaide Ward is void. She has sworn in her answer that which has been distinctly disproved. The evidence shows that she imposed in a gross manner upon the testator. Therefore, there must be a declara- tion to the effect that the bequest to Adelaide Ward, the pretended wife of the testator, is wholly void^ and then there must be the usual decree for administration. The right of the infant, Sarah Ward, seems to me very clear. An attempt has been made to show that inasmuch as the testator was de- frauded by the woman whom he believed to be his wife, and was, through that fraud, induced to believe that her child was his step- daughter, the bequest to her wholly fails. But in the case referred to of Kennell v. Abbott, 4 Ves. 802, Lord Alvanley took care to distinguish between the cases of an innocent and a fraudulent legatee, and in my opinion there is no warrant for saying, where the testator knew this infant legatee personally, and intended to benefit her personally, that the language of the will is not a sufficient description. Sarah Ward, therefore, is entitled under the will, but I have some difficulty in say- ing that she is absolutely entitled, as there is a gift over in case she shall die under twenty-one years of age, and without issue. Ch. 3) TESTAMENTARY CAPACITT AND INTENT. 33 Declare that the gift to Sarah Ward is valid, and the ;niestion, whether absolutely or not, will be left open until the hearing on further consideration.^" IB "But upon general principles I am of opinion it would be a violation of every rule that ought to prevail as to the intention of a deceased person if 1 should permit a man availing himself of that character of husband of the testatrix, and to whom in that character a legacy is given, to take any part of the estate of a person whom he so grossly abused, and who must be taken to have acted upon the duty imposed upon her in that relative character. I de- sire to be understood not to determine that, where from circumstances not moving from the legatee himself the description is inapplicable, as where a person is supposed to be a child of the testator, and from motives of love and affection to that child supposing it his own, he has given a legacy to it,_ and it afterwards turns out that he was imposed upon, and the child was not his own, I am not disposed by any means to determine that the provision for that child should totallv fail ; for circumstances of personal affection to the child might mix with it, and which might entitle him, tliough he might not fill that charac ter in which the legacy is given. My decision, therefore, totally avoids such a point. Neither would I have it understood that if a testator, in consequence of supposed affectionate conduct of his wife, being deceived by her, gives her a legacy, as to his chaste wife, evidence of her violation of her marriage vow could be given against that. It would open too wide a field. But this decision steers clear of that point. This is a legacy to her supposed husband and under that name. He was the husband of another person. He had certainly done this lady the grossest injury a man can do to a woman ; and I am called upon now to determine whether the law of England will permit this legacy to be claimed by him. Under these circumstances I am warranted to make a prece- dent, and to determine that wherever a legacy is given to a person under a par- ticular character, which he has falsely assumed, and which alone can be sup- posed the motive of the bounty, the law will not permit him to avail himself of it ; and therefore he cannot demand his legacy." Sir Richard Pepper Arden in Kennell v. Abbott, 4 Ves. 802, 808, 809 (1799). But see Wennlng v. Temple, 144 Ind. 189, 41 N. B. 600 (1895). Where the testator knows that his "wife" has a first husband living and undivorced, the gift to her as wife is good. In re Wagstaff, [1907] 2 Clbi. 35. [1908] 1 Ch. 162. So where testatrix knows that her "husband" has a first wife living. In re Will of Donnely, 68 Iowa, 126, 26 N. W. 23 (1885) ; Moore v. Heineke, 119 Ala. 627, 24 South. 374 (1898). See, also, Meluish v. Milton, L. R. 3 Ch. Div. 27 (1876), where the lower court thought the testator had a suspicion, if not information, that the woman's husband was living. Compare Baker's Will, 2 Redf. Sur. 179 (N. Y., 1876). See, also, post, p. 306, note. In Howell v. Troutman, 53 N. C. 304 (1860), the testator, a white man, being induced by his housekeeper, a Avhite woman, to believe that the latter's mu- latto child was his, bequeathed $250 to the housekeeper, provided she would look after testator's widow, and gave the residue of his estate to the child, with a gift over if the child should die without lawful children or child. The trial court charged the jury that there was no evidence of such influence as would invalidate the will, and the will was probated. In sustaining the action of the trial court, the upper court said: "Supposing that he did believe the child was his, and that the mother of it told him so ; there is not the slightest testi- mony to show that she ever asked him to make a will in favor of her and the child, or that she knew, before the will was made, that he intended to make one, or, afterwards, that he had made it. * * * At most, it is said that she made him believe that he had begotten a child by her, which everybody but himself could see was a mulatto. Surely that alone cannot destroy a will which the mother is not shown to have had the slightest agency in procuring. * * * The truth is that the old man, being childless by his wife, took a strange fancy to the child of his housekeeper, and, whether it were his own or not, he had a father's love for it, and our law imposes no prohibition upon a man to prevent him from bestowing his propertv upon the object of his affection." Battle, J., in Howell v. Troutman, 53 N. C. 304, 307, 308 (1860). But see Ex parte Wallop, C0ST.WlLLS--3 34 LAST WILLS AND TESTAMENTS. (Part 1 DOE ex dem. SMALL v. ALLEN. (Court of King's Bench, 1799. 8 T. R. 147.) Ejectment. Evidence in regard to the execution of a will was offered by the defendant and rejected. A verdict was given for the plaintiff, with liberty to the defendant to move for a new trial in case the evi- dence ought to have been received. A rule to show cause was ob- tained.^^ Lord Ken YON, C. J. I think that this evidence ought to have been received. The testator having made one will, which (is admitted) was a good will, and being pressed by certain persons around him to make another will, asked in the presence of credible witnesses whether or not the second will which was brought to him to be executed was the same as the first, which was answered in the affirmative. It turns out that it was different from the first will, and the question here is whether or not that evidence ought to be received. Our decision will not in the least tend to repeal the Statute of Frauds, or contradict the case of Sel- win v. Browne [Cas. temp. Talb. 240 (1734)]. I agree that the con- tents of a will are not to be explained by parol evidence ; but, notwith- standing that act, evidence may be given to shew that a will was ob- tained by fraud. And the effect of the evidence offered in this case was to shew that one paper was obtruded on the testator for another which he intended to execute. Gross, J. It seemed to be admitted at the bar that evidence may be given to shew that one paper was substituted for another, and that I think is sufficient to decide this case. For the evidence proposed to be given was this: That when the testator asked for a duplicate of his former will the persons about him substituted another instead of it. Lawrence, J., declared himself of the same opinion. Rule absolute. WINGROVE v. WINGROVE. (High Court of Justice, Probate Division, 1885. 11 P. D. 81.) The plaintiff as a legatee propounded a will dated the 15th of Sep- tember, 18G9, of Elizabeth Wingrove, late of 87 Long Lane, West Smithfield, and alleged that a codicil dated the 9th of October, 1880, which revoked some of the gifts to him, was procured by the undue influence of the defendants. The defendants in the statement of de- fence denied that the codicil was procurd by undue influence, and 4 P.ro. 0. C. 90 (1792), and Clark v. Fisher, 1 Paige (N. T.) 171. 19 Am. Dec. 402 (1S2S). Com[)are the hohliiig that unrlue influoiice exerted by a motlier may vitiate a will in favor of her child. Cheney v. Goldy, 225 III. .394, 80 N. 10. 2,S9, IIG Am. St. Rep. 14.1 (1907). Compare, also, Coghill v. Kennedy, 119 Ala. 641, 24 South. 459 (1898). 18 The statement of facts is abbreviated. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 35 claimed probate of it together with the will. The acfion had been tried by a common jury, who found a verdict for the plaintiff, which was subsequently set aside and a new trial ordered by a special jury. Sir James Hannen (President), in addressing the jury said: Gen- tlemen of the jury, I must ask your particular attention to the ex- position which I am about to give you of the law upon this subject of undue influence, for I find, from now a long experience in this court, that there is no subject upon which there is a greater misapprehension. The misapprehension to which I have referred arises from the par- ticular form of the expression. We are all familiar with the use of the word "influence"; we say that one person has an unbounded in- fluence over another, and we speak of evil influences and good influ- ences ; but it is not because one person has unbounded influence over another that therefore when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word. To give you some illustrations of what I mean, a young man may be caught in the toils of a harlot, who makes use of her influence to in- duce him to make a will in her favor, to the exclusion of his relatives. It is unfortunately quite natural that a man so entangled should yield to that influence and confer large bounties on the person with whom he has been brought into such relation; yet the law does not attempt to guard against those' contingencies. A man may be the companion of another, and may encourage him in evil courses, and so obtain what is called an undue influence over him, and the consequence may be a will made in his favor. But that again, shocking as it is, perhaps even worse than the other, will not amount to undue influence.^ ^ To be undue influence in the eye of the law there must be — to sum it up in a word — coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favor, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue in- fluence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, IT Compare remarks by Lord Oi-anworth, O., In Boyse v, Rossboroush, 6 H. L. Gas. 2, 47-i8 (1S57). See, also, Giiiter v. Giiiter, 79 Kan. 721, 101 I'ao. G34, 22 L. R. A. (N. S.) 1024 (1900). "Influence may be desrading and pernicious, and yet not undue iullueuce in the eye of the law. The leading autliority on the subject is the judgment of Cranworth, L. C, in Boyse v. Rossboro"gh." Lord Macnaghten, in Baudains v. Richardson, [190G] A, a 169, 184. 36 LAST WILLS AND TESTAMENTS. (Part 1 and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of some one else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, "This is not my wish, but I must do it." If therefore the act is shown to be the result of the wish and will of the testator at the time, then, however, it has been brought about — for we are not dealing with a case of fraud — though you may con- demn the testator Jor having such a wish, though you may condemn any person who has endeavored to persuade and has succeeded in persuading the testator to adopt that view — still it is not undue in- fluence. There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the pow- er unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.^* 18 "Mere suspicion, however strong, Is not of Itself enough to warrant a find- ing of fraud and undue influence. On the other hand, it is not necessary that there should be direct evidence of fraud and undue influence in order to jus- tify such a finding, though it often happens that such evidence is produced. It is of the nature of fraud and undue influence that .they may be exercised in indirect and underhand ways, difficult to be come at, and to be judged of only by their results. The will of a testator may be coerced and fraud committed upon him in various ways, and what would constitute fraud and coercion in one case might not in another. There is no hard and fast rule. A person may be so situated, so weals and feeble, or so dependent on another, for instance, that mere talking to him or pressing a matter upon him would so affect him that, for the sake of quietness, he might do that which he did not want to do, and which, if his health had been better, or his will stronger, he would not have done. Such a case would constitute or might be found to constitute coer- cion as trulv as force or duress." Morton, J., in Hoffman v. Hoffman, 192 Mass. 416. 419, 78 N. E. 492, 493^94 (1906). "The word 'undue,' when used to qualify influence, has the legal meaning of 'wrongful.' Hence 'undue influence' means a wrongful influence. * * • An influence exerted over another, which deprives him of his free agency and makes the will speak the will of another and not that of the testator, cannot be other than wrongful, however acquired. The influence of affection or par- tiality for a child, coupled with persuasion or solicitation, is not wrongful in the legal sense of the term, but would be if It went to the extent of depriving the testator of his free agency." Vickers, J., in Dowie v. Sutton, 227 111. 183, 197, 81 N. E. 39.J, 401, 118 Am. St. Rep. 266 (1907). "The fraud, force, or undue influence that will suffice to set aside a will must be such as to overcome the free volition or conscious judgment of the testator, and to substitute the wicked purposes of another instead, and must be the efficient cause, without which the obnoxious disposition would not have been made." Wolverton, J., In In re Holman's Estate, 42 Or. 345, 358, 70 Pac. 908, 913 (1902). See Larabee v. Larabee, 240 111. 576, 88 N. E. 1037 (1909) ; Hart v. Hart (Tex. Civ. App.) 110 S. W. 91 (1908). Ch. 8) TB8TAMENTART CAPACITY AND INTENT, 37 HACKER V. NEWBORN. (Upper Bench, 1654. Style, 427.) If a Man make his Will in his Sickness, by the over-importuning of his Wife, to the end he may be quiet, this shall be said to be a Will made by constraint, and shall not be a good Will. By Roll, Chief Justice, In a Tryal at the Bar in the Case of one Hacker and New- born, Mich. 1654.^» In re STORER'S WILL. STORER V. ZIMMERMAN. (Supreme Court of Minnesota, 1881. 28 Minn. 9, 8 N. W. 827.) GiLFiLLAN, C. J.^* * * * The contestant offered to prove the amount of property the testator had at the date of the will, which proof was excluded. This is alleged as error. It is insisted that the proof would have shown there was great inequality in the distribution of his property among those naturally the objects of his bounty, and that that fact, in connection with evidence tending to show impaired mind and memory, which evidence was given, is evidence of undue influ- ence on the part of those who seem to be favored by the will. Where there is evidence, independent of any question of inequality in the will, tending to show acts of undue influence over the testator to procure him to make the will, on the part of those who appear to 19 "Keeping peace in one's family can scarcely be an unlawful or immoral object. There would seem to be do legal objection to a testator's devising his property for that sole purpose, if he deliberately concludes of his own free will that such is his best policy. Of course, he must not have been coerced into mak- ing it. * * * The right to freely dispose of one's property must include the right to do so in such a way as to maintain the family peace, and even the making of that one's sole object." Hastings, C, in Davidson v. Davidson, 2 Neb. (Unof.) 90, 99, 96 N. W. 409, 411, 412 (1901). On the coercion of a promise made to a deceased husband, see Henderson v. Jackson, 138 Iowa, 326, 111 N. W. 821 (1907). "To make a good will, a man must be a free agent. But all Influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a senti- ment of gratitude for past services, or pity for future destitution, or the like, these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command as- serted and yielded to for the sake of peace and quiet, or of escaping from dis- tress of mind or social discomfort, these, if carried to a degree in which the free ' play of the testator's judgment, discretion, or wishes, is overborne, will consti- tute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven ; and his will must be the offspring of his own volition, and not the record of some one else's," Sir J. P. WUde, in Hall V. Hall, L. R. 1 P. & D. 481 (1868). 20 Part only of the opinion is given. 38 LAST WILLS AND TESTAMENTS. (Part 1 be preferred, evidence that the distn.biitij3iiJ&-grossly uaeqitaLaiay. i>e- given in aid of such evidence of undue influence, to show indeed the result, as well as strengthen the evidence, of undue influence. But_ mere inequality, however great, in the distribution of the property among children or relatives, is no evidence of undue influence, nor is it made such by evidence of impaired mind. If it were evidence from which a jury might find undue influence to avoid the will, the issue practically presented to the jury in every case of the kind would be: Is the will such as the jury, if in the testator's circumstances, would have made? Few wills could stand if such were the test. Any man of sufficient capacity, where his power to dispose of his property is not limited by statute, has a right, in disposing of it by will, to use his own judgment and consult his own preferences without regard to how such disposition may be approved or disapproved by others.^* * * * Judgment affirmed. In re TYNER'S ESTATE. TYNER et al. v. VARIAN et al. (Supreme Court of Minnesota, 1906. 97 Minn. 181, 106 N. W. 808.) Elliott, J. This is an appeal from a judgment of the district court, sustaining the will of John Tyner after the probate court had refused to admit it to probate. John Tyner died testate, November 10, 1903, at the age of 87, leav- ing as heirs at law three sons, Richard, Thomas, and John, one daugh- ter, Rebecca O'Leary, the children of two deceased daughters, and his wife Margaret. The will in question was executed July 2, 1891. The property consists of 160 acres of land in Dakota county, Minn., and personal property of about the value of $4,500. Under the will Rich- ard, Thomas, and John receive $2.50 each. To the wife, Margaret, is given "all the rest, residue and remainder of my property, both real or personal, or mixed, of which I may die seised or possessed, to have and to hold for and during the term of her natural life, and to use as she may deem best, and I do hereby authorize my said wife to dispose of any of the personal effects and convert the same into money and to use so much of the money as may be necessary for her personal sup- port." After the death of the wife, Rebecca O'Leary, the daughter, and Mary A. Bird> a niece, are given $500 each "out of my moneys and credits, if so much remains after the payment of all claims and ex- 21 See Morgan v. Morgan, 30 App. D. C. 430 (1908); Donnan v. Donnan, 236 111. 341, sr, X. E. 270 (1908) ; Winn v. Grier, 217 Mo. 420, 117 S. W. 48 (1909). On the eff(?ft of uniiatiiral or unreasonable disposition of property on the ques- tion of undue influence, see 6 L. R. A. (N. S.) 202, note; 22 L. R. A. (N. S.) 1024, note; 7 Am. & Eug. Ann. Cas. 891, note; 13 Am. & Eng. Ann, Cas. 1044, note. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. penses of the last sickness of myself and wife." Other small bequests were made, but they are not important as far as this appeal is con- cerned. After the death of Margaret Tyner, all the land owned by John Tyner is given to Richard and William Varian, the nephews of the wife, Margaret. The result is that Margaret Tyner is given the use of the land and of all the personal property during her life, and at her death the land goes to her nephews, to the entire exclusion of the children of the testator. The contestants, the children of the testator, contend that the will is the result of undue influence exercised by Mar- garet Tyner, the wife of the testator. 1. The right to dispose of property by will is the creature of positive law, but it is carefully guarded and protected. A person who has tes- tamentary capacity may make such a disposition of his property as conforms to his -ideas of justice and propriety. He may be guided by lofty and beneficent motives, or by sordid prejudice and personal dis- like. The justice and righteousness of his final dealings with those who are the natural objects of his bounty and toward whom he has as- sumed solemn duties and obligations are to be determined by the final judge of all human conduct. Subject to very limited statutory re- strictions, the power of testamentary disposition is absolute. But a valid will must be the result of the voluntary act of the testator, and not merely express the will of some other person. The wife, and other possible objects of his bounty, may properly influence his actions ; but this influence must not be so great as to destroy his power of mW. The words "undue influence" carry with them their own limitation. The influence must not be undue. To constitute undue influence the testator must be so influenced by persuasion, pressure, or fraudulent contrivance that he does not act intelligently or voluntarily and is sub- ject to the will and purpose of another. It may be exerted through threats, fraud, importunity, or the silent, resistless power which the strong often exercise over the weak or infirm. It must be sufficient to destroy his free agency and substitute the will of another for that of the testator. Entreaty, importunity, or persuasion may be employed, as may appeal to the memory of past kindnesses and the calls of the distressed. Mere suggestions or advice addressed to the understand- ing or judgment of the testator never constitute undue influence; neither does solicitation, unless the testator is so worn out with im- portunities that his will gives way. Robinson v. Robinson, 203 Pa. 401, 53 Atl. 253. The fact that the will is inofficious, harsh, and unjust is not in itself evidence that it was induced by undue influence. Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885. Nor is the fact that the beneficiary under the instrument had special opportunities to exert undue influence over the testator. But when there is evidence, independent of any question of inequality in the will, tending to show acts of undue in- fluence over the testator to procure the will on the part of those who appear to have been preferred, the fact that the distribution of property 40 LAST WILLS AND TESTAMENTS. (Part 1 is grossly unequal and unjust may be received to strengthen the evi- dence of undue influence. In re Storer's Will, 38 Minn. 9, 8 N. W. 827 ; Nelson's Will, 39 Minn. 204, 39 N. W. 143 ; Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885 ; Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598 ; In re Hess' Will, 48 Minn. 504, 51 N. W. 614, 31 Am. St. Rep. 665; Clarity v. Davis, 92 Minn. 60, 99 N. W. 363; Fisher v. Sperl, 94 Minn. 421, 103 N. W. 502 ; Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. Ed. 84 ; Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717, 68 Am. St. Rep. 293. Generally the burden of showing that a will was procured by undue influence rests upon those who assert the fact; but when the contest- ants have made a prima facie case, by the production of evidence from which the presumption of undue influence arises, the burden is then upon the proponents to show that the instrument is the will of the testa- tor. It is not very material whether we say that in such a case the burden shifts, or that the evidence produced, aided by the presump- tion which arises therefrom, is evidence sufficient to make a prima facie case. Cofim v. U. S., 156 U. S. 432, 15 Sup.' Ct. 394, 39 L. Ed. 481 ; Elliott, Evidence, vol. 1, § 92 ; Thayer, Prelim. Treatise on Evidence, p. 551. What is meant is that a point is reached when the contestant prevails unless the proponent assumes the obligations of going for- ward with his evidence. In re Sperl's Estate, supra, and cases there cited; Small v. Champeny, 102 Wis. 61, 78 N. W. 407; Doyle v. Welch, 100 Wis. 24, 75 N. W. 400; Disch v. Timm, 101 Wis. 179, 77 N. W. 196 ; Rivard v. Rivard, 109 Mich. 98, 66 N. W. 681, 63 Am. St. Rep. 566 ; Fisher v. Bishop, 108 N. Y. 25, 15 N. E. 331, 2 Am. St. Rep. 357, note; Clarity v. Davis (Minn.) supra.^^ In the light of these general principles we proceed to a review of the evidence. It is not possible to set out all the testimony; but a very brief summary will be sufficient to show that the contestants fulfilled all the requirements necessary to make a prima facie case of undue influence, and that it was not overthrown by the evidence offered by the respondent. John Tyner's first wife died in 1866, and within two *2 "In the proof of undue influence, negativing the capacity of a testator, there is a difference of judicial opinion, as in the case of insanity, but here it goes back to the main burden of persuasion ; 1. e., by one opinion, the volun- tariness of the testator's act is a part of the proponent's case, and with the jury he has the risk of non-persuasion ; by the other view, the fact of undue Influence Is treated as In the nature of a defensive plea of the contestant, and therefore to be proved as a T>art of his case." 4 Wigmore on Evidence, § 2502. "One who Is familiar with the volume of litigation which is now flooding the courts cannot fail to be attracted by the fact tliat actions to set aside wills are of freqtient occurrence. In such actions the testator cannot be heard, and very trifling matters are often pressed upon the attention of the court or jury as evi- dence of want of mental capacity or of the existence of undue influence. What- ever rule may obtain elsewhere, we wish it distinctly understood to be the rule of the federal courts that the will of a person found to be possessed of sound mind and memory Is not to be set aside on evidence tending to show only a pos- sibility or suspicion of undue influence. The expressed Intention of the testator should not be thwarted without elenr reason therefor." Brewer, J., in Beyer v Le Fevre. 18G U. S. 114, 12.5, 126, 22 Sup. Ct 765, 770, 46 L,. Ed. 1080. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 41 months thereafter he married Margaret Varian. When the second wife came into the family, she found four children, all under 18 years of age. Almost from the beginning the family life was unhappy. She evidently took a dislike to the children, and soon began a systematic effort to drive them from the home. In this she was ultimately suc- cessful. The children were frequently whipped by the father at her request. They were not allowed the food which was supplied to the other members of the family. They were deprived of proper and nec- essary clothing and schooling and seem to have been generally ill- treated. One of the boys returned home on two occasions and was re- fused admission by his stepmother. Another farmed the land for two years, but finally left because of trouble with Margaret. A few years later the father sent for him, and he made another attempt to run the farm, with the same result. She disliked them, and was determined that they should not be at home with their father. It clearly appears that the boys were driven from home by the continuous ill treatment of Margaret Tyner. During the last illness of John Tyner his wife would not permit reports of his condition to be sent to his absent chil- dren, and she prevented the news of his death reaching them until it was too late for them to attend the funeral. There is no evidence that the children were to blame, and in view of the age and relation of the parties it should not be presumed. John Tyner was an illiterate man, unable to read or write. He seems to have had some natural capacity ^or acquiring and retaining money, which he concealed about the premises in old tomato cans. The testimony shows that Mar- garet was much the stronger character, and generally had her way about household and business affairs. She had some education, and her husband, as is usual in such cases, overestimated the importance of a little book learning. He was so deaf that it was necessary for her to be with him when he transacted any business and do most of the talking. He seems to have relied largely upon her for his informa- tion and trusted to her judgment. She was persistent, energetic, and resourceful. Like her husband, she was in the habit of drinking, and they frequently went to town and got drunk together. The property and its final disposition seems to have been continu- ally in her mind, and from the first she determined that the children should never have the land. She told the neighbors that the land had been promised to her brother's children. She kept everlastingly talking to her husband about the worthlessness of the boys, and accused them of being lazy, thieving, and shiftless. Her purpose, it may fairly be assumed, was to so prejudice his mind against them that he would cast them off and leave his property to others of her choosing. She told the neighbors that the children should" not have the land. When the will was made Margaret was with the testator, making suggestions and doing part of the talking. After it was made she expressed her ap- proval of its contents, and from that time until the death of John Ty- ner she exerted her influence to prevent him from becoming recon- 42 LAST WILLS AND TESTAMENTS. (Part 1 ciled to the chridren and changing the will. She said "the will was made the way she wanted it, and was not going- to be changed." It is apparent that she earnestly desired to influence her husband in the making of his will, and that she was induced to do this by her dislike of the children and her desire to have the land go to her own relatives. She was also to some extent personally benefited by the will, as she received all the law would give her, and in addition thereto she was given complete control over all the personal property during her life. But the ultimate question is whether her influence actually induced the will. It is certain that it was exerted for the purpose of controlling the making of the will and the dfsposition of the property. John Ty- ner stated to disinterested parties that Margaret would not permit him to leave the land to the children. He told the witness Flannery that he gave the boys nothing, because Margaret did not want them to have anything. He also told Mrs. Joego that he was not going to give any of the land to his children, because Margaret "would not al- low him to." The same statement was made to Mary Tyner. All of this evidence stands uncontradicted. Margaret was present at the trial, but was not called as a witness. John Tyner's wife and children were the natural beneficiaries of the property, and there is nothing to show that the children were not deserving of his consideration. The attempt to show that they had improperly left home and neglected their father failed completely. There being evidence of this character in the case, the inofficious, harsh, and inequitable character of the will may also be taken into consideration. The Varians, who received the homestead, are not of the blood of the testator, but are the nephews of his wife. As far as the record shows they had never done anything for John Tyner, except farm the land for a time, nor was he under any obligation to them. The evidence thus presents a much stronger case than appeared in Clarity v. Davis, 93 Minn. 60, 99 N. W. 3G3, where Chief Justice Start, speaking for the court, said : "In view of these admitted facts and the relation existing between the legatee and the testator, the claim of the appellant that the burden was upon the respondent to show by clear and satisfactory evidence that the testator was mentally competent to make his will and that its execution was not procured by undue influence and fraud is, as it must be, conceded by the respondent." Judgment reversed, and new trial ordered.^' 23 "It Is impossible to define or describe with precision and exactness wliat is undue influence, what the quality and the extent of the power of one mind over another must be to make it undue, in the sense of the law, when exerted in makiuR a will. Like the question of insanity, it is to some dejjree open and vatnie, and must be decided by the application of sound princij)les and good sense to the facts of each given case. Lynch v. Clements, 24 N. J. Eiinl condition of the d' C' d lil, the fact that the- proponent, was the draftsman and principal beneficiary under the_wjjj _j^nd tp nk- an active part in procuring its execution, and that the testatrix acted witliout independent advice — a case was made which r'?^uTred explanation, and which imposed upon the proponent the bur- den, of satis£ylng~the court that the will was the free, untrammeled, and intelligent expression of the wishes and intention of the testa- trix. See note to'Huguenin v. Bassley, 2 W. & T. Leading Cas. in Eq. 1156; Rcdfield on Wills, 515, and cases cited. ^" «B There Is some conflict of authority on the question of whether the rule as to gifts inter vivos should be applied to wills. See 1 Woerner's Auiorirau Law of Admin. (2d Kd.) § .".2. For the ar-jrumcnt a.irainst applyini? it to wills, see Parfitt v. I^awless. L. R. 2 P. & D. 4G2 (1S72). In Lockvvood v. Lockwood, 80 Conn. 513, 522, 09 Atl. 8, 11 (1908), the court recognizes and enforces the Ch. 3) TESTAMENTARY OAPAOITT AND INTENT. 4S The surrogate reached a conclusion adverse to the contestant upon both grounds upon which the validity of the will was questioned. He found that the testatrix had testamentary capacity and that the will was not procured by any fraud or undue influence. We think there was evidence to support the conclusion of the surrogate upon both points. But upon neither was the case free from doubt. We do not intend to enter into a discussion of the facts. We have reached the conclusion that the judgment ought to be reversed for errors in the admission of evidence on the question of undue influence, which was calculated to, and which we cannot say may not have had a material influence upon the determination of the surrogate. * * * The judgment of the General Term and of the surrogate is there- fore reversed.^* rule that, while the opponents of a will have in general to show undue Influ- ence affirmatively, yet "in certain cases — where the natural object of the testa- tor's bounty is excluded from participation in his estate, where a stranger sup- plants children, and the will is in favor of the lawyer drawing and advising as to its provisions, or the guardian having charge of his person and estate, or of the person occupying a clearly analogous position of trust — there is imposed upon the proponents of the will, upon the trial of the issue thus raised, the obligation of disproving by a clear preponderance of evidence the affirmation of the actual exercise of undue influence by such beneficiaries of the will." See, also, Byrnes v. Gibson (N. J. Prerog.) 68 Atl. 756 (1908). 2 6 See In re Barney's Will, 70 Vt. 352, 40 Atl. 1027 (1898); Snodgrass v. Smith, 42 Colo. 60, 94 Pac. 312 (1908) ; In re Cooper's Will (N. J. Prerog.) 71 Atl. 676 (1909). See, also, Downey v. Murphey, 18 N. 0. 82 (1834), where the reason for the difference in the attitude of the ecclesiastical courts and that of the common-law courts is explained. "The fact that an inference unfavorable to the validity of a will, which may be drawn when it appears that a person who was dependent upon or subject to the control of another (Woodbury v. Woodbury, 141 Mass. 329, 5 N. E. 275, 55 Am. Rep. 479 [1886]) makes a will in that other's favor, may be rebutted by showing that the transaction was fair and honest, does not change the ques- tion of whether or not it has been rebutted from one of fact to one of law. Whenever facts that would sustain the will are put in evidence, together with other facts from which an inference unfavorable to its validity may be drawn, the question of whether the unfavorable inference should be drawn, and, if so, whether it has been rebutted, are both questions of fact, for they are the same questions which arise on every motion to set a verdict aside as against the weight of evidence ; and in this state the questions arising on such a motion are questions of fact." Young, J.,^ in Edgerly v. Edgerly, 73 N. H. 407, 408, 62 Atl. 716, 717 (1905). For a discussion of the proper rule where a will is drawn by a beneficiary under it, see 71 Am. Dee. 129, note ; 3 Am. Prob. Rep. 52, note ; 15 Am. & Eng. Ann. Cas. 551, note. On the effect of gifts by will to one standing in fiduciary relationship to the testator, see 21 Am. St. Rep. 94, note ; 5 Am. Prob. Rep. 590, note ; 6 Prob. Rep. Ann. 300, note. That the law raises a rebuttable presumption of undue influence when a ward makes a will in favor of her guardian is asserted in Re Cowdry's Will, 77 Vt. 859, 60 Atl. 141 (1905). In Dudley v. Gates, 124 Mich. 448, 86 N. W. 959 (1901), in affirming the cor- rectness of the trial count's charge to the jury on the question of the burden of proof, the upper court said: "We do not think that this charge, taken as a whole could have misled the jury. They were correctly told that the circum- stance that the will was drawn by proponent's husband was a circumstance which raised a suspicion, and they could not have heard this charge without understanding that it was the duty of the proponent to remove this suspicion by evidence." See, also, In re Miller's Estate, 31 Utah, 415, 88 Pac. 338 (1906) 46 LAST WILLS AND TESTAMENTS. (Part 1 MAIN V. RYDER. SAME V. MINER. (Supreme Court of Pennsylvania, 1877. 84 Pa. 217.) Mr. Justice Mercur.^^ * * * 3_ 'pj^g fact[s] that the testator lived with a woman to whom he was not legally married, and that she and their illegitimate offspring were the devisees of much of his property, are urged as creating a presumption in law that the will was executed under improper influences. The case of Dean et al. v. Neg- ley et al. [41 Pa. 312, 80 Am. Dec. 620] is cited to support this view. The opinion of the judge in that case expressly declares that the court does not decide such relations create a presumption of law of undue influence; but leaves the effect thereof as a question of fact for the jury. To the same effect is the case of Rudy v. Ulrich et al., 69 Pa. 177, 8 Am. Rep. 238. No clearly defined weight can be given to such testimony. Much must depend on the particular circumstances of each case. It is an element undoubtedly to be considered. It appears that Miner had been entirely separated from his lawful wife and children for nearly thirty-five years. So far as it appears none of them had met him in all that time. She had not sought any reconciliation of her marital relations, nor they of their filial rela- tions. They all resided in another state. She died in April, 1869. For more than twenty-six years the testator and the woman named in his will as his wife, had lived and cohabited together as husband and wife. During all that time they so recognized each other. She had borne him several children. To them he also devised a portion of his estate. A separation for more than thirty years from his legitimate children nat- urally weakened his parental affection towards them. It needed no special effort on the part of his other family, with which he had lived more than a quarter of a century, to make them the objects of his bounty. The court fairly submitted the fact of his illicit associations to the jury to consider in determining the question of undue influence. On the whole record we discover no sufficient cause for reversal ; there- fore, judgment affirmed in each case. 28 27 The statement of facts Is omitted, and part only of the opinion Is given. 2 8 See Sa.xton v. Krunim, 107 Md. 30.3, GS Atl. IO.jO. 17 L. R. A. (N. S.) 477, 12(5 Am. St. Kep. 303 (1008). On the effect of meretricious relations l)et\veon testator and beneficiary on the validity of a devise or bequest, see 17 L. R. A. (N. S.) 477, note; 13 I'rob. Rep. Ann. 455, note; and 21 Am. St. Rep. 00, 100, note. Compare the pift inter vivos case of Piatt v. Elias, ISG N. Y. 374, 79 X. K. 1, 11 L. R. A. (N. S.) .^.54, 110 Am. St. Rep. 558 (1006). "We are of opinion thnt • • * an intluence when exercised by a wife might be lawful and lef,'itimate, but which, If exercised by a woman occupying merely an adulterous relation to the testator, mijiht be undue and illegitimate." Worden, O. J.. In Kessinger v. Ko.ssingor, 37 Ind. .341, 343 (1871). See, also, Mc^ Clure V. McClure, 80 Tenn. 173, G S. W. 44 (1887). "The existence of an Illicit relation between a deceased testator and his mis- tress will not give rise to a presumption of undue influence as a matter of law : Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 47 HAYES V. MOULTON et al. (Supreme Judicial Court of Massachusetts. Worcester, 1907. 194 Mass. 157, 80 N. E. 215.) Appeal by Lizzie A. Hayes, executrix, from a decree of the pro- bate court disallowing the will of one Susan H. West, an aunt of ap- pellant. When the will was made Susan H. West was 77 years of ag-e. The will was made on June 28, 1904, and testatrix died July 26, 1904. On June 13, 1904, testatrix sent for appellant and asked her to come to her. A day or two later testatrix stated to the appel- lant that she had sent for her to fix up her property, and asked the appellant what she should do. The appellant replied that she should advise dividing it equally between the nephews and nieces that the tes- tatrix thought the most of. The testatrix replied that was just what she did not want to do, as she did not wish to have her property sold, whereupon the appellant said that, if her aunt wished, she would keep it just as it was and rent it. Subsequently the aunt executed the will giving the property to the appellant. In the superior court, before Judge John A. Aiken, the jury sustained the will, and respondents ex- cepted. The eleventh request for instructions was as follows : "A will which is different from the previously expressed purpose of the testatrix, and which is different from what it would have been if she had been in full possession of her faculties and had acted under independent ad- vice, should be set aside." The court refused to give this. The twelfth request was as follows: "The question of undue in- fluence and mental capacity cannot be separated, where the testatrix was of advanced age and suffering from a disease affecting her brain and vital powers." This request was refused. The nature of the other requests referred to in the opinion is stated in the opinion. Sheldon, J.^® * * * f j^g eleventh request could not have been giv- en in the form asked for. The fact that a will differs from the previ- ously expressed purpose of the testatrix, or from what it would have been if, besides being in full possession of her faculties, she had acted under independent advice, does not require it to be set aside. She had the right to change her mind and to select her own advisers. And the but undue influence is more readily inferred in case of a will made in favor of a mistress than in the case of a will in favor of a wife. The existence of the relation is a circumstance to be considered by the jury, along with the other facts in the case." Magruder, J., in Smith v. Henliue, 174 111. 184, 196, 197, 51 N. E. 227, 231 (1898). See, also, Snell v. Weldon, 239 111. 279, 87 N. E. 1022 (1909) ; Weston v. Hanson, 212 Mo. 248, 111 S. W. 44 (1908). That such may be the rule, although prior to the will the testator marries his mistress, see Reichenbach v. Ruddach, 127 Pa. 5G4, 18 Atl. 432 (1889). But the period of the illicit relationship before marriage may he too remote to have any weight. Fulton V. Freeland, 219 Mo. 494, 118 S. W. 12 (1909). 29 Part only of the opinion is given. 48 LAST WILLS AND TESTAMENTS. (Part 1 jury were sufficiently told that the will could not be sustained unless the petitioner proved that the testatrix was of sound and disposing mind and memory.^" * * * It would not have helped the jury to state to them the abstract prop- osition of law contained in the twelfth request. It is true of course, as argued by the respondents, that a person may have sufficient capacity to make a will if let alone and yet not be of sufficient capacity to resist the pressure upon him of strong influence; and the question whether the use of such influence is lawful or not often may depend, and per- haps in this case did depend, upon the condition of mind and body of the person upon whom it is exercised. Dexter v. Codman, 148 Mass. 421, 424, 19 N. E. 517; Bacon v. Bacon, 181 Mass. 18, 22, 62 N. E. 990, 92 Am. St. Rep. 397. But that is not what the judge was asked to say to the jury. He had a right to refuse this request. * * ♦ Exceptions overruled. Appeal of HARRISON. (Supreme Court of Errors of Connecticut, 1880. 48 Conn. 202.) Appeal from the decree of probate court approving the will of Ed- ward Harrison, deceased, brought to the superior court in New Haven county, and tried to the jury before Hitchcock, J. The jury returned a verdict setting aside the will, and the appellees moved for a new trial for error in the rulings and charge of the court, and on the ground that the verdict was against the evidence. The case is suf- ficiently stated in the opinion. Loom IS, J.'^ This appeal was from the decree of the New Haven probate court, approving the will of Edward Harrison, late of New Haven, deceased. The testator was twice married. The appellant is a son by the first wife. The testator's last wife and his four children by her sur- vive him; and to them the will gives all his property, to be equally divided, subject however to a bequest to one Ann Naughton, a serv- ant in the family, of an amount sufficient to make her share equal to each of the other shares. To this Ann Naughton, the appellant at- tributes an undue influence over the testator in the making of his will, which rendered it invalid. »o "It Is true that, where a will Is charpred to have been executed through undue iutluence, the declarations of the testator, made before its execution, are admissible by way of rebuttal to show his intention as to the disposition of his propertj-, upon the ground that a will made in confoi'inity with such declnra- tions is more likely to have been executed without undue inlluence than if its terms are contrary to such declarations. Rut the declarations thus admissible are those which are in harmony with the provisions of the will actually made, and not those which are opposed to such provisions." Per Curiam, in Waters V. Waters. 222 111. 20, .35. 78 N. E. 1, 4, 113 Am. St. Rep. 359 (1906). «> Part only of the opinion is given. Ch. 3) TISTAMENTART CAPACITY AND INTKlfT. . 49 The verdict of the jury sustained the claim of the appellant and the entire will was set aside. The question now comes before this court for review by the appellees' motion for a new trial, predicated on three grounds — namely: That the verdict was against the evidence, and that the court erred in its instructions to the jury, and that its rulings as to the admissibility of evidence were erroneous. The consideration of the first question is unnecessary, as the other grounds are sufficient to require the granting of a new trial. The appellees requested the court to charge the jury: "That a will may be void in part and valid in part; that if the jury should find that the legacy given to. Ann Naughton by the provisions of the will was obtained by her undue influence, then the legacy only would be void, and not the remaining provisions of the will, unless the jury should further find that the undue influence extended to the other provisions of the will." But the court refused so to charge, and on this point instructed the jury as follows: "It is true that a will may be void in part, and in all other respects be valid; but, as this case stands, the question of the partial validity of the will is not presented, and has not been tried. The executor and all the parties claiming under the will are made parties by service of order of notice to this appeal [to the superior court from the probate court]. All have appeared, and have been fully heard by evidence, on the question raised by the rea- sons. No specific question, by way of reasons for the appeal, needed to be presented ; but such reasons having been filed attacking the will as a whole, the evidence, on both sides, having been directed to that sole point, and the trial having proceeded throughout, up to the ar- gument, solely on that question, the will, on such proceedings, musi be sustained or be rejected as a whole." That the request of the appellees embodies an accurate statement of the law is shown by many authorities. In Trimlestown v. D'Alton et al., 1 Dow. & Clark, 85, it was held that "where an undue influence is exercised over the mind of a testator in making his will, the provi- sions in the will in favor of the person exercising that influence are void; but the will may be good as far as respects other parties; so that a will may be valid as to some parts and invalid as to others ; may be good as to one party and bad as to another." So in Florey's Ex- ecutors V. Florey, 24 Ala. 241, it was held that "fraud or undue in- fluence in procuring one legacy does not invalidate other legacies which are the result of the free will of the testator, but if the fraud or un- due influence affects the whole will, though exercised by one legatee only, the whole will is void." So in 1 Redfield on Wills (4th Ed.) p. 519, § 20, it is said that "It is undoubtedly true that a will may be void in part and not in all its provisions ; or it may be void as to one legatee and not as to others." Further citations are quite unnecessary, if indeed any were re- quired ; for there was no controversy in the court below on this point. Cost. Wills— 4 50 LAST WILLS AND TESTAMENTS. (Part 1 But the court, while acknowledging the law as claimed by the appel- lees, refused to allow them the benefit of it in the case on trial, upon the idea that the question as to the partial validity of the will was not in issue, and that it was too late to make the claim upon argument. In this respect the court erred. The issue was as to the fact of un- due influence, and also and necessarily as to its nature, effect and ex- tent. Even where the pleadings are of the most technical character the greater, of necessity, includes the less. A charge of murder involves manslaughter as well. In ejectment, where the pleadings have sole reference to a specified tract of land as an entirety, any part within the boundaries may be recovered without the rest. So that, if tested by the strictest rules, the court was wrong. But the technical rules of pleading do not apply to issues on the trial of the validity of a will. Reasons of appeal are not necessary to form an issue, but when filed they constitute a notice to the adverse party of the matter relied upon. St. Leger's Appeal from Probate, 34 Conn. 434, 91 Am. Dec. 735. The interests of dift'erent legatees are by law separate and distinct. The widow and children had a clear right to have the jury pass upon the question, whether the will of the testator was not entirely free from undue influence as to them and their legacies, and whether the undue influence had anything to do with the exclusion of the appellant from a share in the estate. There was evidence tending to show that the undue influence, if any, might have begun and ended with Ann Naugh- ton, which the jury ought to have been permitted to consider. The question as to the effect of the undue influence, as shown by the evi- dence, was properly made in the argument. * * * A new trial is advised.^'' SECTION 7.— MISTAKE GIFFORD v. DYER. (Supreme Court of Rhode Island, 1852. 2 R. I. 09, 57 Am. Dec. 70S.) This was an appeal from a decree of the court of probate of Little Compton, proving and approving the last will and testament of Abigail Irish. The will was dated December 4, 1850, and the testatrix died December 6, 1850. After several bequests of small sums to the chil- dren of Robin Gifford and to others, she gives and bequeaths the rest ■2 See. to the same effect, In re Welsh. 1 Redf. Sur. 238 (N. Y. ; 1849) ; Stend- man v. Steadman (Pa.) 14 .\tl. 40G (1888); Old Colony Trust Co. v. Bailev, 2<)2 .Mass. 2S;5, .S,S N. R 808 (1909): Sumner v. Staton (N. C.) Go S. E. 902 (1909). f'ouiuare lu re Cooper's Will (N. J.) 71 Atl. G7G. GSO (1909). Ch, 3) TESTAMENTARY CAPACITY AND INTENT. 51 and residue of her property, one half to John Dyer, who was her brother-in-law, and the other half to her two nephews, Jesse and Alexander Dyer. Robin Gifford, the only child of the testatrix, was not mentioned in the will. It appeared in evidence, that at the date of the will, Robin Gifford had been absent from home, leaving a family, for a period of ten years, unheard from ; that all the neighbors con- sidered him dead, and that his estate had been administered upon as of a person deceased. The scrivener who drew the will, testified as fol- lows : "After I had read the will to her, she asked if it would make any difference if she did not mention her son. I asked if she considered him living. She said she supposed he had been dead for years ; she said, if it would make any difference she would put his name in, for they will break the will if they can. I think that was the expression she used. I think she said what she had given to her grandchildren was in lieu of what he would have, but am not positive. I think her son left in 1841, and was not heard of to my knowledge. She was speaking of a home at Mr. Dyer's and said, what she had given him would pay him well. She said her grandchildren had not been to see her while she was sick." It appeared that the testatrix had resided with John Dyer for some time previous to her death. Greene, C. J. It is very apparent in the present case, that the tes- tatrix would have made the same will, had she known her son was living. She did not intend to give him anything, if living. But if this were not apparent and she had made the will under a mistake as to the supposed death of her son, this could not be shown dehors the will. The mistake must appear on the face of the will, and it must also appear what would have been the will of the testatrix but for the mistake. Thus, where the testator revokes a legacy, upon the mistaken supposition that the legatee is dead, and this appears on the face of the instrument of revocation, such revocation was held void. Campbell v. French, 3 Vesey, 331. WAITE V. FRISBIE et al. (two cases). (Supreme Court of Minnesota, 1891. 45 Minn. 361, 47 N. W. 10G9.) GiLEiLLAN, C. J.^^ This is a contest over the will of Josephine O. Frisbie presented for probate. * * * Qne ruling at the trial involved the question whether, on the evidence, there was a case upon which a finding in favor of the will could be sustained. That was a request, refused by the court, that the jury be instructed to find a ver- dict in favor of contestants. After a careful examination of the evi- dence, we think the request ought to have been granted. Assuming the instrument to have been signed by the deceased or by another by her express direction, as required by the statute, still the instrument 83 Part only of tlie opinion is given. 52 LAST WILLS AND TESTAMENTS. (Part 1 is not such an expression of her wishes as to be entitled to be regarded as her will. The circumstances were somewhat peculiar. Mrs. Fris- bie was very ill and weak, so much so as to be unable to speak, or to indicate her wishes unless by gestures at the time of and for some minutes before the signing, and at the time of giving directions for the will she could barely speak. She was in a dying condition, and died within about 10 minutes after the signing. It is evident that when dic- tating what she desired put in the will, and while it was being prepared, and when presented to her for execution, she was supposed to be about to die. In such circumstances very great care is required to make sure that the instrument really expresses the will of the person signing, and not merely the inferences of the person drafting it, or of the by- standers, as to what the party's wishes are. Stating the evidence as strongly as possible in favor of the will, about an hour and a quarter before she died Mrs. Frisbie communicated to Mrs. Wiser, who was with her and remained with her to the end, her desire to make a will, and the disposition she desired to make of her property, and Mrs. Wiser stated these to Dr. Frisbie, the husband of deceased, and he wrote out accordingly as it was stated to him. The instrument he prepared in the form of a will, except the concluding clauses, contained five items, the first four making minor bequests to others, the fifth making him residuary legatee. The instrument was then read over to deceased, and she declined to sign it, because she desired in it a pro- vision that, if her brother should come to want, she wanted the doctor (the residuary legatee) to take care of him. To prepare and insert such a clause a lawyer was sent for, and Mrs. Wiser informed him what Mrs. Frisbie desired, and he added, not in the precise words of the deceased, but in his own, expressing what he understood was de- sired, a sixth clause or paragraph. This clause did not change in any way the legal effect of the instrument as it was when deceased declined to sign it. It made no charge on the estate, and imposed no duty or liability on any one. It was merely a request to her husband to see that her brother was taken care of so as not to become a public charge, in case he should come to want. The clause was not read by, nor to her, nor was it explained to her. She was assured that what she de- sired about her brother was in the instrument, and then what is claimed as the signing took place. If it were clear that the words in which the sixth clause is expressed were her words, — that they were chosen by her, or adopted by her, — the instrument would be none the less her will, although the words did not effect the purpose she may have in- tended. But it is clear from the testimony of Mrs. Wiser, who re- ceived Mrs. Frisbie's instructions, and communicated them to the lawyer, that the language of the deceased was not inserted in the clause. The witness and the lawyer may have thought it substantially identical, — that it expressed the same idea. But the words of the clause are not the words of the deceased, nor, as the words of the latter are testified to by Mrs. Wiser, do they express the same idea. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 53 The words to her indicate a desire on the part of the deceased to make a positive provision for her brother in the contingency mentioned, while the words of the clause make no such provision, but leave the matter of taking care of the brother to the option of the husband. * * * Order [granting a new trial] affirmed.^* IDDINGS v. IDDINGS. (Supreme Court of Pennsylvania, 1821. 7 Serg. & R. 111.) This was a writ of error to the court of common pleas of Union county, in which a feigned issue was tried, to determine the validity of a writing purporting to be the last will and testament of Henry Id- dings, deceased. The plaintiff having given evidence in support of the will, by the oaths of the two subscribing witnesses, one of whom was Jonas Candor, the scrivener who drew it, the defendants offered to prove, on the cross- examination of the said Candor, that through ignorance he had drawn the will in such a manner as to contradict the intention of the testator. The nature of the mistake was as follows : The testator's estate was principally personal ; he had a number of children, to some of whom he had made advances in money, and it was his design to make an equal division of his property among them; in order to effect this, a legacy * was given to each, which would have put them all on nearly an equal , Wf/fij*-^^ footing, supposing that the sums advanced to each were added to their 'J^<^ legacy ; but the scrivener inserted in the will a direction to the execu- tors not to cancel any of the accounts between the testator and his children; the consequence of which would be that the children must , /v-**'' account for the sums advanced to them, and then their provision would .... ' " be very unequal. The mistake arose from the scrivener's ignorance of the meaning of the word cancel. It appeared that the testator was ninety-two years old, and had ten children. The defendants further offered to prove that one of the testator's children was not named in • the will, and that the will was extorted from the testator by the im- portunity and hard usage of Thomas Iddings, one of his children. The court rejected this evidence, and the defendants excepted to their opinion. Jonas Candor, the above-mentioned witness, having stated, on his examination, that the testator furnished him with the matter of the will, the defendants proposed to ask the witness what were the in- structions given to him by the testator, and requested him to state them at large. The plaintiff objected to this testimony, and the court over- ruled it, and sealed a second bill of exceptions. The verdict and judgment below were for the defendant in error, in favor of the will. ** See Christman v. Roesch, 132 App. Div. 22, 116 N. T. Supp. 348 (1909). 64 LAST WILLS AND TESTAMENTS. (Part 1 TiLGHMAN, C. J.'" This may be a very unfortunate mistake for some of the children of the testator, but I am clearly of opinion that the evidence was not admissible. Our law requires that wills should be in writing, and proved by two witnesses. But if the writing is to be contradicted by parol evidence, the object of the law will be defeated and all certainty destroyed. It is very common for scriveners to make mistakes, particularly where they make use of technical words, which they are fond of doing. But, if these mistakes were to be corrected by the scrivener's recollection of his conversation with the testator, it would open such a door for perjury and confusion, as would render wills of very little use. The rule of law, therefore, is that the writing is not to be altered, or explained by evidence aliunde. ""'^ &«t--tfei5TTireni^'liot"so~unEen&iT^^ no exception. It may happen, that expressions, apparently certain, may be rendered uncertain, by something peculiar in the person, or the subject to which they are applied. A man has two sons of the name of John, and de- vises land to his son John. The uncertainty is made to appear by parol evidence that there are two sons called John. It is permitted, there- fore, to remove this uncertainty by other parol evidence, showing which son was intended. Without this evidence, the devise would be void, and, in truth, its object is to explain a doubt arising, not on the will, but on the matter out of the will. But, if a doubt should arise on the face of the will (an ambiguity patent as it is called), it is not to be explained by parol evidence. So, parol evidence has been admit- ted to rebut a resulting trust; neither is this in contradiction of the written will ; the trust is not declared by the will, but raised by opera- tion of law; the legal presumption may, therefore, be encountered by parol evidence of the testator's intention; but the written will is pre- served, without addition or diminution. In the case of fraud, too, al- ways the subject of the law's abhorrence, evidence is admitted, not for the purpose of explaining or altering the writing, but of showing it to be void. If, instead of the will which a man has read and intends to execute, another is substituted, which he executes, it is evident that this is not his will, and proof of this fraud is permitted. So, I appreliend, the truth might be shown, if, by mistake, the wrong paper was ex- ecuted and the testator died before there was time to correct the er- ror. These are, in general, the cases in which parol evidence is al- lowed, although I will not say that there may not be others. Now, the case before us is very different from any I have mentioned, for there is no latent ambiguity, no fraud, no resulting trust. The will was read to the testator, and executed by him, without any kind of mistake or imposition as to the paper itself. The mistake, if there was one, was in the meaning of a very common word (cancel). I have mentioned the rule of law, and will refer to good authorities to prove it, although I shall not undertake the useless and endless labor of ex- • B Part only of the opinion Is given. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 55 amining all the cases in the books on the subject of parol evidence. The case of Brown v. Selwyn is strong to this point, and I select it, because it was affirmed by the House of Lords in England, and has been recognized by our courts. In that case (reported in Cas. temp. Talb. 210, and 4 Bro. P. C. 176, 186), the testator had devised the resi- due of his estate to his two executors equally, and it was offered to be proved, that he had given instructions to the person who drew his will, to release a debt due on bond from one of his executors, but the evi- dence was rejected. In the case of Mann and Others v. Mann and Others, 1 Johns. Ch. (N. Y.) 231, where the law on this subject of parol evidence is laid down with great learning and accuracy by Chan- cellor Kent, Brown v. Selwyn is cited and relied on, as it is also in Tor- bert v. Twining and Others, decided by this court in the year 1795 (1 Yeates, 432). The case of McDermott v. United States Insurance Company, 3 Serg. & R. 604, decided by us in 1818, adheres to the same principle of rejecting parol evidence, with the exceptions which I have mentioned. In short, it may be affirmed, without hesitation, that the current of authority runs strong in the same channel, although it can- not be asserted that all the cases are in unison. For my own part, be- ing convinced by experience of the danger of parol evidence, I am more inclined to shut the door, than throw it wider open. I concur, therefore, with the opinion of the court below in the present instance. But there is another bill of exceptions in this cause. * * * My opinion is that in the second bill of exceptions there is error, and therefore the judgment should be reversed and a new trial or- dered. Judgment reversed, and a venire facias de novo awarded.^® 3 8 See Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254, 20 Am. Dec. 100 (18.30). "In a court of probate, it may doubtless be shown by parol evidence that the alleged testator, at the time of signing the instrument, did not understand that it was a will, or intend that it should operate as such. Swett v. Boardmau, 1 Mass. 258 [2 Am. Dec. 16 (1804)] ; Osborn v. Cook, 11 Cush. 532, 535 [59 Am. Dec. 155 (1853)]. But if, being of sufficient mental capacity, and free from in- sane delusion or undue influence, he executed the instrument with a knowledge of its nature and contents, and intending that it should be his last will, its ad- mission to probate cannot be opposed by evidence that he did not understand the legal effect of all its provisions, or truly appreciate the proportions in which his property would be thereby distributed. To allow this to be done would be to defeat, by evidence of the most unsatisfactory and untrustworthy charac- ter, an instrument voluntarily executed by a competent testator with all the forms and solemnities which the statute makes essential to the validity of a testamentary disposition." Gray, J., in Barker v. Comins, 110 Mass. 477, 488, 489 (1872). In a late English case, where the court was asked to strike out of a will a general revocation clause, and to probate with the will a prior will and codicil, the court said: "The last will contains words which in law revoke all previous wills. These words were inserted, as I have no doubt, because the testatrix; misunderstood their meaning, and I have no doubt how she came to misunder- stand their meaning. It is clear in the evidence that the person who drew the will was ignorant — there is no fraud — as to the effect of putting that clause in and doubly ignorant ; for he told her it would be inoperative, and he told her, farther, if it was struck out, the rest of the will would be vitiated. Mis- informed by this statement, she allowed the clause to remain. The question 66 LAST WILLS AND TESTAMENTS. (Part 1 MITCHELL V. CARD. (Court of Probate, 1S62. 3 Sw. & Tr. 75.) Sir C. Cresswell gave the following judgment : ^"^ In this case the defendants propounded a will alleged to have been made by Mary- Gregory, widow. The plaintiffs pleaded — first, that the will was not duly executed; secondly, that the deceased was not of sound mind, memory, and understanding; thirdly, that the paper writing pro- pounded was not the will of the deceased ; fourthly, that the will was obtained by the undue influence of the defendant Gard. Issues were joined on these pleas, and the cause came on for trial at the last assizes for Exeter, before Byles, J., when the jury found, first, that the will was duly executed; secondly, that the deceased was of sound mind, memory, and understanding; fourthly, that the will was not obtained by undue influence. With regard to the third issue, the learned judge put certain ques- tions to the jury suggested by the evidence, which, as far as that is- sue was affected, was as follows : The testatrix, on Tuesday, the 16th of September, in the morning, gave to the defendant Gard instructions for her will. She named several persons who were to be legatees, and the sums to be given to them respectively, and she made Gard residuary legatee. Gard directed his son, who was in practice as an attorney, to prepare a will according to those instructions, and to do it quickly. The son, in his haste, omitted the name of Triplett as one of the leg- atees. In the afternoon, Gard, the residuary legatee, took the will to the house of the deceased, and was soon afterwards followed by two medical men. One or more of the legatees named in the will were there, and some conversation took place about two or three other per- sons, and deceased said that she wished them to have a legacy of £5 each. Gard made a memorandum of this, and said it should be at- tended to; but the will was not altered. Soon after this all persons, except the two Gards (father and son) and the medical men, left the Is: Under these circumstances, can I strike it out consistently with the author- ities? I am afraid I cannot. * • ♦ Then Mr. Bray refers me to the case of Alorrell v. Morrell [7 P. D. 68], and it seems to me that the language used in that case expresses the law which is applicable to this case, and expresses what is some reason for it, because the view of Lord Hanuen in that case is this: That if a testator employs another to convey his meaning in teclmical language, and that other person makes a mistake in doing it, the mistake is the same as if the testator had employed that technical language himself. Now, that view appears to me exactly to meet the present case. This lady thought it right to employ this gentleman to make her will for her; she thought it right to trust hhn. No doubt he was mistaken; but, according to Uie view of Lord Uannen, his mistake was her mistake. • • • Under these circumstan- ces I feel bound to say that I am unable to strike these words out of the will, and probate will go of the will of October 17, 1889, with these words of revoca- tion Included. The will of 1875, with the codicil of 1885. will not be admitted to probate." Sir Francis Henry Jeuue, President, in Collins v. Elstone, [1893] P. 1, 3-5. 87 The statement of facts is omitted. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 57 room. Gard then read over the will slowly and carefully to the de- ceased ; she attended to it, and expressed herself satisfied. Neither she nor Gard noticed the omission of Triplett's name. The will was then duly executed by her, and attested by the medical men. The learned judge told the jury that an accidental and innocent deviation from in- structions (as in the case of the legacy to Triplett) would not vitiate a will afterwards executed and rightly understood, or even executed by a competent testator ; but, with reference to the omission of the other legacies, he asked the jury whether the instructions for them- were present to Gard's mind at the time of the execution of the will, but absent from the mind of the testatrix, and he (Gard) knew them to be so; or whether the testatrix executed the will in the erroneous belief that those legacies had been given by the will, and Gard knew that she did so. The jury found that the testatrix had given instructions to Gard for legacies to Gillard, Perriam, and Egg ; that at the time of the execution of the will those instructions were present to his mind ; that they were absent from hers, and that he knew them to be so. The learned judge thereupon directed the verdict to be entered for the plaintiffs, on the third issue, giving to the defendants leave to move to enter it in their favor. A rule nisi for that purpose having been grant- ed, cause was shown against it on the 15th of May, when the cases of Barry v. Butlin, 2 Moo. P. C. 480, and Mitchell v. Thomas, 6 Moo. P. C. 137, were cited to show that when a person prepares a will by which he is largely benefited, and the capacity of the testator is at all doubtful, it is necessary to prove that instructions were given by the testator, or that the will was read over to him, or that by some other means he was fully acquainted with its contents. Those cases have no bearing on the question now to hp. determined, for the testatrix gave instructions for all that was in the will ; it was read over to her, and the jury found that she was of sound mind, mem- ory, and understanding, which is not now disputed. The '"eal question is, whether that which she heard read, and approved, and executed, is or is not her will, because she forgot at the tirne that she had desired other legacies to be given, which were not inserted. Before the Stat- ute 1 Vict. c. 26, many wills were brought under the consideration of the Prerogative Court, when it appeared that they did not contain all that the testator intended. The cases on the subject may be divided into two classes : one, where there was on the face of the will, as executed, some ambiguity or incongruity which indicated that some- thing must have been omitted by mistake, and in them evidence was received of the testator's intention, and the omission supplied. The other class was where there was nothing on the face of the will to mdicate that a mistake had been made, and the principle of kw ap- plicable to them was very clearly stated by Sir John NichoU in Bayl- don V. Bayldon, 3 Add. 232. He says: "Where a will has nothing doubtful or incongruous on the face of it, suggesting itself the proba- bility of some casual error to account for this in the body of the wilL 58 LAST WILLS AND TESTAMENTS. (Part 1 extrinsic evidence of the testator having meant other than the will expresses is inadmissible, as the court after and notwithstanding such evidence would still be bound to pronounce for the will." And again, in Shadbolt v. Waugh, 3 Hagg. 573, the same learned judge, with ref- erence to an alleged omission, said, "It may be possible that the non- insertion escaped his observation when the will was read over, but that is not sufficient." The omission of the legacies therefore did not prevent the will pro- pounded from being the will of the deceased. There is nothing to show that at the time when it was executed she believed it to be other than it really was ; as far as this question is concerned, I think it makes no difference whether the legacies, were omitted by accident or inten- tionally, nor can it make any difference that Gard remembered the legacies, and knew that she had forgotten them. But also the will was executed by her intending that it should be her will ; if her execution of it had been obtained by fraud, the case would be different. The knowledge of Gard may raise a suspicion against him, but fraud was not pleaded, nor do I learn from the learned judge's notes that it was imputed, nor was any question put to the jury on the subject. The point reserved must therefore be determined apart from any presumption of fraud, and on the authority of the cases cited, as well as the reason of the thing, I am of opinion that the writing propounded was the will of the testatrix, and that the rule for entering a verdict' for the defendants on the third issue must be made absolute.^* HARTER V. HARTER. (Court of Probate, 1873. L. R. 3 P. & D. 11.) Sir J. Hannen.^® In this case the plaintiffs, two of the executors of the will of the Rev, George Gardner Harter, deceased, dated the 6th of June, 18C2, propound the said will, together with a codicil there- to of the 31st of August, 1863, and in their declaration allege that the word "real," which immediately precedes the w(5rd "estate" in the residuary clause of the will was inserted in the said residuary clause by error, contrary to the instructions of the testator, and was retained 88 The English rule is that words inserted in a will by mistake may be stricken out. but that words omitted from a will may not be inserted. Goods of Louis Schott, [1001] P. 190. See Harter v. Ilarter. the next priucipal case. In Newbursh v. Newburgh, 5 ALad. 304 (1820), a devise of lands in the coun- ties of Gloucester and Sussex was by mistake copied as a devise of lands in the county of Sus.sex, and it was held that the mistake could not be corrected. In that case, "ui>on an appeal to the House of Lords, the judges were unanimous that the parol evidence could not be received, but the case was ultimately de- cided by the House upon the true construction of what still appeared on The face of the will." Sugden's Law of Property, 200. Compare Stanley v. Stanley, 2 J. & H. 40i (18G2). 8 9 The statement of facts is omitted. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 59 therein at the time of the execution of the will, without his knowledge or approval, and that by reason thereof the said word "real" is not entitled to be included in the probate. One of the defendants, Eliza- beth Jessy Harter, the widow and remaining executrix of the will, has pleaded denying that the word "real" was inserted in the residuary clause by error, contrary to the instructions of the deceased, and that the said word "real" was retained therein without the testator's knowl- edge and approval, and a further plea that the will with the word "real" in the residuary clause was read over by and to the said tes- tator, who was competent to, and did, understand the same ; that the testator at the time of the execution of the said will knew and approved of the contents thereof as the same now appear; and, lastly, that the testator, after executing this said will, duly executed the codicil thereto, dated the 31st of August, 1863, and thereby confirmed, and, in law, re-executed his said will as the same now appears. These portions of the pleadings are sufficient to show the questions which arise for de- cision in the cause. By the settlement executed on the marriage of the deceased, he had, with his wife, a joint power of appointment of moneys, amounting on the whole to £65,000, for the benefit of one or more of his children. By a subsequent settlement certain freehold and copyhold hereditaments in the county of York stood at the time of the execution of the will in question limited to the use of the deceased and his assigns for life, with remainder to the use of his first and other sons successively, according to seniority, in tail male, with divers re- mainders over. The deceased was also possessed of real estate of con- siderable value, and of personalty of the value of about £200,000. In this state of things, the deceased, on the 1st of May, 1862, after full explanation from his solicitor, Mr. Slater, of the position of affairs in reference to the said settlements, gave him oral instructions for the preparation of his will. Mr. Slater, in the presence of the deceased, wrote a memorandum of these oral instructions. The deceased also instructed him to prepare a joint appointment under the power in that behalf in the marriage settlement, and this was, as stated by Mr. Slater, part of the scheme tlie testator wished to be carried out in con- nection with his will. The memorandum of the instructions for the will is before the court, and is as follows: "Give to wife, Elizabeth Jessy Hall, provisions, wines, liquors, carriages, horses, harness, live and dead stock in and about my dwelling-house and farm at Cranfield, except plate and fur- niture, with £1,000 legacy to wife absolutely. Set apart a sum suffi- cient to raise an annuity of £2,000 per annum to Mrs. Harter for life, with powers of investment. Give to Mrs. Harter the privilege of occupying, rent free, the house, outbuildings, garden, and pleasure- grounds at Cranfield Court, until eldest son for the time being shall attain twenty-five years of age, provided she so long remains my widow; and during such occupation of the house Mrs. Harter to have the use of the plate and furniture without liability to loss or breakage. 60 LAST WILLS AND TESTAMENTS. (Part 1 Limit (subject to interest in Cranfield Court given to Mrs. Harter) the Cranfield and other estates in Bedfordshire or Buckinghamshire, in- cluding the advowson of Cranfield, and the plate to like limitations as the Yorkshire estate, subject to previous trusts. Give furniture at Cranfield Court to eldest son for the time being on attaining twenty- five. Also give him £20,000 on attaining twenty-one. Give legacy of ilO,000 to each of my daughters, Sophia Elizabeth, Jessy H., and Eleanor Maude H., on twenty-one or marriage. And the residue equally among all the sons, including the eldest for the tim£ being, on attaining twenty-one. Maintenance, education, and atSvancement clauses during minority, as usual. Trustees and executors, my wife and my brother, James Collier Harter." Mr. Slater subsequently handed this memorandum to his managing clerk, Mr. Howarth, who drew up a draft will. In this draft the residuary clause is drawn in the following words: "And subject to the interests hereinbefore con- tained, upon further trust to stand possessed of all the residue and remainder of my real estate, in trust to divide the same equally between and amongst such of my sons now born or hereafter to be born (in- clusive of my eldest son for the time being), as and when they shall severally attain their respective ages of twenty-one years, for their own use and benefit absolutely." A joint appointment providing for the equal division of the funds settled by the marriage settlement was also drawn up. On the 2d of May Mr. Slater handed to the deceased a fair copy of the draft for his perusal; and on the same day the draft of the joint appointment was also furnished to the deceased. On the 6th of May the deceased returned to Mr. Slater the draft will, as to which, after stating that he had carefully perused it, he suggested cer- tain alterations. These were afterwards embodied in the draft in red ink, and the draft, so altered, was again returned to the deceased. Be- tween this time, the 9th of May, and the execution of the will on the 6th of June, several letters passed between the deceased and Mr. Slater on the subject of the will, which clearly, show that the deceased read and fully considered the will, and suggested an alteration in the residu- ary clause, by which the eldest son was to take a share equal to two of his brothers' shares; but no reference is made in the correspondence to the terms in which the residuary clause was worded, and it re- mained, with the exception of the above-mentioned alteration, as drawn in the first draft, and was so copied into the will, which was ultimately executed. Mr. Howarth, the managing clerk to Mr. Slater, was called as a witness, and stated that he understood the word "residue" in the in- struction, to mean "real and personal," but that by inadvertence he drew it as it now stands, and never noticed the error. Mr. Slater also stated that the terms of the residuary clause entirely escaped his attention. Upon the evidence afforded by the documents in the cause as well as by the oral testimony of the witnesses, I entertain no doubt that the residuary clause, as it stands in the will, does not express the Ch. 3) TBSTAMBNTAB¥ CAPACITY AlfD INTBNT. 61 real meaning of the testator. It was not his intention that there should be an intestacy as to his residuary personalty, but that he intended that such residue should be divided amongst his sons, the eldest taking two shares. It is necessary that I should state what appears to me to have been the exact nature of the error by which a failure to express the true intention of the testator has arisen. I think that the error consists in the omission of the words "and personal" after the word "real" in the residuary clause. The memorandum of instructions drawn up by Mr. Slater, deals with realty as well as personalty, and then proceeds to dispose of the residue. This, without qualification, would mean the residue of the testator's property generally, real and personal ; and so it was understood by Mr. Howarth, who drew the will. It makes no difference in my judgment, that the testator had not at the time any other realty than that which he had specifically disposed of. That fact may possibly have made him or Mr. Slater careless in the use of a general term wide enough to include realty, if it had existed, but it does not negative an intention on their part to use the word in its or- dinary and more extended sense. There was no intention on the part of the testator to leave an intestacy as to any other real estate which he might possess or acquire, but in the belief that he had not and prob- ably would not have any, he was content to use language wide enough to include it. Nor does the fact that the language of the residuary clause in disposing of the residue is rather applicable to personalty make any difference. On this point the observations of Lord Cottenham in Saumarez v. Saumarez, 4 M. & Cr., at page 340, may be referred to. "The circum- stances of the testator using expressions and giving directions appli- cable only to the personal estate, may prove that he did not at the time consider, or was not aware, that realty would be part of his resi- due; but if such knowledge be not necessary, as it certainly is not, to give validity to the devise, the absence of it, though so manifested, cannot destroy the operation of the general intent of passing all the residue of his property;" and again, at p. 339, "In considering gifts of residue, whether of real or personal estate, it is not necessary to as- certain whether the testator had any particular property in contem- plation at the moment. Indeed, such gifts may be introduced to guard against a testator having overlooked some property or interest in the gifts particularly described." This view of the facts leads me to a conclusion which is decisive of the case. I think it is not in the power of the court to supply words accidentally omitted from a will. The Wills Act (1 Vict. c. 26, § 9) admits of no qualification. "No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned," that is, by a duly attested signature. In the present case there is no testamentary disposition of the residue of the personalty of the deceased fulfilling the requirements of the act, and the intention of the deceased, however clearly it may appear in the un- attested instructions, cannot be given effect to. "With respect to wills 62 LAST WILLS AND TESTAMENTS. (Part 1 made on or after January, 1838," says Sir E. V, Williams (1 Wm. Ex'rs, 345, Cth Ed.), "it is plain that by reason of the provisions of the Statute 1 Vict. c. 26, the whole of every testamentary disposition must be in writing and attested pursuant to the act. Whence it fol- lows that the court has no power to correct omissions or mistakes by reference to the instructions in any case to which that statute extends." This disposes of the numerous cases, which were cited in argument, of dates anterior to 1 Vict. c. 26; and with regard to wills to which that statute is applicable, it has not been suggested that the court can admit to probate any words not contained in some duly attested testa- mentary document, however cogent the evidence may be, from oral or written instructions, that they were intended to be part of the will. But it was contended on behalf of the plaintiffs that the true view of the nature of the mistake in the draft and copy as executed is not that the words "and personal" were omitted, but that the word "real" was inserted, and that the will ought to be made to read "all the residue and remainder of my estate." I have already stated my grounds for holding that the error was one of omission, but there are further spe- cial reasons why I cannot expunge the word "real" from the residuary clause. There are undoubtedly numerous cases which establish that this court may decree probate of a part only of a properly attested in- strument purporting to be a will. It is not necessary to do more than refer to the authorities collected in the case of Fawcett v. Jones, 3 Phillim. 434, which, though relating to wills before the Statute 1 Vict, c. 26, are on this head applicable to wills of a later date. And in the case of Allen v, McPherson, 1 H. L. C, at p. 209, Lord Lyndhurst said, "It is perfectly clear that the Ecclesiastical Court may admit part of an instrument to probate, and refuse it as to the rest." Lord Campbell (1 H. L. C, at page 233) in the same case says, "It is quite clear that the Ecclesiastical Court had jurisdiction to refuse probate of that part of the codicil which affects the appellant, because, giving credit to the facts stated, that part of the codicil was not the will of the testator; he was imposed upon, and probate of that part of the codicil ought to have been refused." In that case fraud was the ground on which it was sought to expunge a part of a codicil ; but In the Goods of Duane, 2 Sw. & Tr. 590, Sir C. Cresswell applied the same reasoning to a case of simple mistake. There the words which were rejected were part of a printed form, and ought to have been struck out as inconsistent with the instructions given by the testator; they were not read by or to the testator, but the person who prepared the will omitted to strike them out. Sir C. Cresswell, after referring to Allen V, McPherson, said: "I can see no difference in principle between that case and the present one, where a clause for which the deceased gave no instructions, and which was not read over to him, formed per in- curiam part of the document signed by the deceased." The facts of that case distinguish it in an essential manner from the present. There an entire clause of which the testator was altogether Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 63 ignorant was introduced by accident, and it was contrary to the inten- tion of the person who drew the will that the clause should be in it. In the present case the testator intended that a clause disposing of the residue of his personalty should be in the will, but he left it to another person to choose the language by which his intention should be carried into effect, and he read and adopted as his own the language so chosen. Inappropriate language having been used, the court is asked to remedy the mistake, not by rejecting words of which the testator is proved to have been ignorant, but by modifying the language used by the drafts- man, and adopted by the testator, so as to make it express the supposed intention of the testator. This is, in fact, to make a new will. The theory of the plaintiffs, is that the testator had his personalty only in his mind, when he gave instructions for the residuary clause, because he had no realty undisposed of. If so, the proper mode of carrying out the instructions would have been to say, "the residue of my per- sonal estate ;" and in that case the error consists in having substituted the word "real" for "personal." Upon this hypothesis the court is asked to strike out the word "real," not because the clause would then be in the form the testator intended, but because it would in its trans- formed shape substantially carry out the testator's wish. It is also to be observed, that not only the form, but probably the effect would be different; for a bequest of the residue of the testator's estate would, according to the modern decisions, include the realty, unless the con- text clearly excluded it : Jarm. on Wills, c. 23 ; The Mayor and Cor- poration of Hamilton v. Hodsdon, 6 Moore, P. C. 76. Such a mode of dealing with wills would lead to the most dangerous consequences ; for it would convert the Court of Probate into a court of construction of a very peculiar kind, whose duty it would be to shape the will into conformity with the supposed intentions of the tes- tator. In very many of the cases which come before the courts of law and equity, as to the proper construction of wills, the intention of the deceased is supposed to be seen, but the question is whether the lan- guage used expresses the intention. If the process now sought to be applied to this will were to be adopted, the Court of Probate will in future be asked, first to ascertain by extrinsic evidence what the tes- tator's intention was, and then to expunge such words or phrases, as, being removed, will leave a residuum, carrying out the intention of the ,testator in the particular case, though different in form, and possibly in legal effect, from that which the testator or his advisers intended. If I felt myself at liberty to adopt such a course, I should think that the best amendment of the will would be to leave the word "residue" by itself in the residuary clause as it is in the memorandum of instruc- tions. But it is obvious that, though this might give effect to the testa- tor's wishes in this instance, it would be by an accident ; for the word "residue," taken with the context of the will, might have had a differ- ent effect to that which it has in connection with the context of the instructions; but, for the reasons I have given, I entirely repudiate 64 LAST WILLS AND TESTAMENTS. (Part 1 this mode of altering- the language of a testamentary instrument, and I am, therefore, of opinion that whether the error which has undoubt- edly crept into the will be one of omission or insertion, it is equally beyond the jurisdiction of this court to correct it. I have thus far considered the case, apart from the decision of Lord Penzance in Guardhouse v. Blackburn, Law Rep. 1 P. & D. 109, but I must add that it appears to me that that is an authority directly de- cisive of this case in favor of the defendants. It was there established to the satisfaction of the court that specific words had been inserted by the attorney who drew the codicil by mistake, and without instructions. Yet the learned judge held that as the contents of the codicil had been brought to the knowledge of a competent testatrix, the execution of the instrument must tie deemed conclusive evidence that she approved as well as knew the contents. If I did not agree in the reasons given by Lord Penzance for his decision, it would be my duty to follow it in a similar case; but I must add, that I entirely adopt my predecessor's very lucid exposition of the rules by which this court ought to be gov- erned with reference to the rejection of the whole or part of a duly executed testamentary document. The conclusion I have arrived at makes it unnecessary that I should express a positive opinion on the effect which the execution of the codicil would have had on the will, if I had thought that the word "real" ought to be expunged from the residuary clause, but I am strongly inclined to think that it would have made no difference, and that the codicil must be held to confirm only that which was the true will of the testator. For these reasons I pronounce for the will in its present form.*" *o "After much consideration, the following propositions commend themselves to the court as rules which, since the statute [the Wills Act] ought to govern ,^ its action ia r£.sj5ect^of_a_duly executed papers First, that before a paper so executed is entitled to proMte;~the court must be satisfied that the testator knew and approved of the contents at the time he signed it Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufiicient proof that he knew and approved the con- tents. Thirdly, that although the testator knew and approved the contents, the paper may still be rejected, on proof establishing, beyond all rwssibillty of mis- tike, that he did not intend the pai^er to operate as a will. Fourthly, that al- SP" though the testator did know and approve the contents, the paper may be re- V^ fused probate, if it be proved that any fraud has been purposely practiced on ^^ the testator in obtaining his execution thereof. Fifthly, that subject to this last <^ preceding proposition, the fact that the will lias been duly read over to a capa- ble testator on the occasion of its execution, or that its contents have been j;;]"^;^ brought to his notice in any other way, should, when coupled with his execu- 'i^ tion thereof, be held conclusive evidence that he approved as well as knew the ^^^ contents thereof. Sixthly, that the above rules apply equally to a portion of ^ the will as to the whole." Sir J. P. Wilde, in GuardJiouse v. Blackburn, L. R. 1 P. & D. 109, 116 (1866). Ol. 3) ^.X^l-BSTAMENTARY CAPACITY AND INTENT. 65 MORRELL V. MORKELL. {High Court of Justice, Probate Division, 1882. 7 P. D. 68.) The President (Sir James Hannen). *^ The finding-s of the jury have disposed of the whole matter. It appears that the testator in- tended to leave all his shares in a particular company to his nephews, and gave instructions to that effect to his solicitor, who embodied them in writing and sent them to a conveyancing counsel in London to draw the will. In those instructions the solicitor spoke, as he had been di- rected by the testator to speak, of "all" the testator's shares ; but, by some accident not accounted for, counsel introduced into the draft will the word "forty" before "shares." Though the solicitor saw this, it never attracted his attention, and he never realized the effect the word "forty" would have on the disposition of the shares made by the tes- tator. The jury have arrived at the conclusion that what the solicitor said on this subject was correct — that he never informed the testator in any way that the word "forty" had been introduced; and it was proved, by other evidence than that of the solicitor himself, that the actual will as executed was not read over to the testator. The jury found that the testator never authorized the introduction of the word "forty" in the will, and never heard that it had been introduced, and that he executed the will in the belief that it carried out his instruc- tions. In the case of Harter v. Harter, L. R. 3 P. & D. 11, 23, I held that the language of a will could not be changed where the testator had seen the words and adopted them; but in Fulton v. Andrew, L. R. 7 H. L. 448, where a residuary bequest was introduced into a will without the knowledge and authority of the testator, the clause con- taining that bequest was rejected. If so, the same principle may be applied to a single word, and therefore, on the ruling of the House of Lords, in Fulton v. Andrew, I hold that the words may be struck out which had been introduced without the authority of the testator. The Court directed that the word "forty" be struck out of the four places in which it occurred in the will, and, by consent of the parties, directed that the costs be paid by the plaintiffs.** In re GOODS OF BOEHM (High Court of Justice, Probate Division. [1891] P. 247.) Motion for a grant of probate of a will with certain alterations. The testator, Sir J. E. Boehm, R. A., died December 24, 1890, leav- ing a will duly executed bearing date December 12, 1889. *i The statement of facts and the instructions to the jury are omitted. *2 In Goods of Thomas Duane, 2 Sw. & Tr. 590 (1862), Goods of Oswald, L. a. 3 P. & D. 162 (1874), and Goods of Sarah Sophia Moore, [1892] P. 378, clauses of revocation not read to or by the testator were omitted from probate. Com- pare Goods of Lady Isabella Gordon, [1892] P. 228. Cost. Wills— 5 66 LAST WILLS AND TESTAMENTS. (Part 1 The instructions for the preparation of the will were given to Mr. Mills, an old friend, who conveyed them to the testator's solicitor, by whom they were laid before counsel to prepare a draft will. From the affidavits of these gentlemen it appeared that by his in- structions the testator directed that two sums of £10,000 each, part of a specific sum of £24,000 dealt with in the will, should be set apart to be settled to the use and benefit of his two unmarried daughters. Miss Georgiana Boehm and Miss Florence Boehm, and their children, after the death of his wife, who was to have the life interest if she survived him. By inadvertence the conveyancing counsel in settling the draft inserted the word "Georgiana" in both the clauses of the will relating to the gifts to the unmarried daughters, and omitted the word "Flor- ence" altogether; so that there were two gifts of £10,000 to Miss Geor- giana Boehm, while Miss Florence Boehm was left totally unprovided for. This error was repeated in the engrossed copy of the draft which was ultimately executed by the testator. The draft of the will, together with an epitome of its provisions, were taken to the testator by Mr. Mills. The draft was never read over to him, but the epitome was. In the epitome the names "Georgiana" and "Florence" were accurately gfiven, and the testator read it over and made corrections in it. The testator did not read the will over at the time of execution, and it was perfectly certain that his attention was not drawn to the mistake, which was only discovered after his death, Jeune, J. I am asked to grant probate of the will of Sir Joseph Edgar Boehm with the word "Georgiana" omitted in two places, in what, on -the face of the will, professes to be a gift in her favour. I had some doubt about deciding this matter on motion; but as repre- sentatives of all existing interests agreed to its being so decided, and future interests will be protected rather than prejudiced by this mode of dealing with this question, I see no objection to adopting it. It is clear from the evidence that the testator intended to give £20,000 in equal moieties to trustees for each of his daughters, Florence and Georgiana, and the instructions for the will correctly expressed this ; but the draftsman, instead of inserting in the draft of the will a clause of gift in favour of Georgiana, and then a similar clause in favour of Florence, inserted the name of Georgiana in the second clause as well as in the first. It is proved that the testator did not read or have read over to him the will, but did read what professed to be an epitome of it, such epitome being in accordance with the instructions, and cor- rectly representing the testator's intentions. In a sense, therefore, the word "Georgiana" was clearly inserted in the two places in question in error, though the real and complete mistake was in not inserting Flor- ence in place of Georgiana. In view of the case of Morrell v. Morrell, 7 P. D. 68, following Fulton v. Andrew, Law Rep. 7 H. L. 448, and the earher authority of In the Goods of Duane, 2 S. & T. 590, mistake is to b^ regarded as a question of fact depending on the circumstances of Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 67 each case, and t!i:re is now no difficulty, in circumstances sucli as those of the above cases, in striking out a clause, or a single word, if shewn to have been inserted by mistake. Indeed, in the present case no such difficulty occurs as arose in Fulton v. Andrew, Law Rep. 7 H. L. -1^8, in reference to the decisions in Atter v. Atkinson, Law Rep. 1 P. & D. 665, Guardhouse v. Blackburn, Law Rep. 1 P. & D. 109, and Harter v. Harter, Law Rep. 3 P. & D. 11, from a presumption of knowledge and approval arising from the reading of, or hearing read, a will by a competent testator, because here the evidence is that the testator, re- lying on the epitome, never read or heard the will read. My difficulty at the argument was that, in the above cases, to strike out the word or words inserted in error left the will what the testator intencled it to be. Here, to strike out the word ."Georgiana" and to leave a blank in its place does not leave the will what the testator in- tended it should be, and I am not aware that there is any exact au- thority for striking a word out of a will under these circumstances. This case would seem to be the same as it would have been in Morrell V. Morrell, 7 P. D. 68, if the jury had found that the mistake con- sisted not merely in having put in the word "forty," but in not having put in the proper number, "four hundred," instead of "forty" — in fact, had answered the second question put to them differently from the way in which they did. The cases of In the Goods of Bushell, 13 P. D. 7, and In the Goods of Huddleston, 63 L. T. (N. S.) 255, refer, I think, only to the correction of clerical errors; and the language of the Judicial Committee in Rhodes v. Rhodes, 7 App. Cas. 192, points to the difficulty of rejecting words where their rejection alters the sense of those which remain.*^ But I think that the application of the principle of striking out a word clearly inserted in mistake may be safely extended, if it be an extension, to a case where the effect of its rejection may be to render ambiguous, or even insensible, a clause of which it formed part. If a person by fraud obtained the substitution of his name for that of anotlier in a will it would be strange if his name could not be struck out, although the rest of the clause in which it oc- curred became thereby meaningless. It may be that in the present case the effect of striking out the name in question will be, on the construc- tion of the will, as it will then read, to carry out the testator's inten- tions completely. It is not for me to decide that. But even if to strike 43 "A much more difficult question arises where the rejection of words alters the sense of those which remain. For, even though the court is convinced that the words were improperly introduced, so that, if the instrument were inter vivos, they would reform the instrument and order one in different words to be executed, it cannot malce the dead man execute a new instrument ; and there seems much difficulty in treating the will, after its sense is thus altered, as valid within the ninth section of St. 7 Wm. IV & 1 Vict. c. 26 ; the signature at the end of the will required by that enactment having been attached to what bore quite a different meaning." Lord Blackburn, in Rhodes v. Rhodes, 7 A.pp. Cas. 192, 198 (1882). 68 LAST WILLS AND TESTAMENTS. (Part 1 out a name inserted in error and leave a blank have not the effect of giving full effect to the testator's wishes, I do not see why we should not, so far as we can, though we may not completely, carry out his intentions. I am, therefore, willing to grant probate of this will as prayed with the omissions specified. BRISCO V. BAILLIE HAMILTON. (High Ctourt of Justice, Probate Division. [1902] P. 234.) Suit for revocation of probate, and for a fresh grant omitting cer- tain words. The will of testatrix contained, among other things, a devise of "all that my undivided moiety of and in certain manors, farms, lands, and hereditaments" in certain parishes in the county of Lincoln. These estates belonged entirely and absolutely to the testatrix as surviving joint tenant under her father's will. The plaintiff as devisee claimed that the deceased did not know and approve of the words "my undi- vided moiety of and^in" contained in the will ; that she gave no instruc- tion Tor their insertion ; that they were never read over or explained to her; and that, if they were read over by or to or were explained to her, she did not understand their meaning, and was not aware of their nature and effect. The plaintiff therefore claimed probate omitting these words. If the devise now in question were held to carry only a moiety of the Lincolnshire estates, or if the devise were held to carry no part thereof to the plaintiff and his family, the remaining moiety or the whole of those estates, as the case might be, would appear to pass under the residuary devise of real estate to Mrs. Arbuthnot (the fourth-named defendant) and her family. It appeared from the evidence of Mr. Charles Edward Jones, the family solicitor, that the draft of the will, instructions for which were given in 1892, was sent to the testatrix in July of that year ; that she retained it till March, 1893 ; and that she then took it to the solicitor with directions as to certain alterations which she desired. There was, however, no evidence that she had, in fact, ever read over, or had read over to her, either the draft or the will ; and a letter from the solicitor to the testatrix was put in, from which the contrary might be inferred. Jeune, P.f No doubt, if it can be proved that a will has been really brought to the mind of a testator or testatrix, and has been duly ex- ecuted, it is difficult — perhaps impossible — in law to hold that anything contained in the will is a mistake. But, as was pointed out by the House of Lords in Fulton v. Andrew, [1875] L. R. 7 H. L. 448, the question is still left open whether the will was or was not really brought to the notice of the testator or testatrix. That question is a 'to' fTlie statement of facts is rewritten and abbreviated. Ch. 3) TESTAMENTARY CAPACITY AND INTENT, 69 question of fact depending upon the circumstances of the particti'lar case. In the present case I am satisfied that the particular portion of the will before me was not brought to the knowledge of the testatrix in such a way that she must be assumed to have confirmed it by her subsequent execution of the will. From the evidence before me, I have no doubt that a mistake was made by the insertion of the words now in question ; and, although it is quite true that the draft was sent to the testatrix, it was accompanied by a letter from the solicitor which in effect stated that there had been no material departure from the terms of the sister's will, upon which it was modelled. Taking those facts, together with the language of the document it- self, it is, to my mind, clearly shown that the testatrix never intended to impose any limitation or restriction upon the particular bequest; and if a jury were asked the question they would decide without hesi- tation that the portion of the will in question was not approved by the testatrix. I therefore consider it my duty to hold that those words do not form part of the will of the testatrix. I revoke the original pro- bate, and decree a fresh grant of probate with the omission of those words.** In re GOODS OF BUSHELL. (/ (High Ck>urt of Justice, Probate Division, 1887. 13 P. D. 7.) Samuel H. Bushell, late of Worcester Park, in the county of Sur- rey, died June 8, 1887, leaving a will duly executed dated November 27, 1885. The will was prepared by his solicitor from his instructions, which were read over to him and fully explained, and on November 26, 1885, he executed a draft, which was also read over to him. When the engrossment of the draft was brought to him next day, he asked whether it corresponded with the draft, and being assured that it did, 4* In Fulton v. Andrew, L. R, 7 H. L. 448 (18T5), where the jury found that the testator did not know and approve of the contents of the residuary clause of the will, though he did know and approve of the rest, and the House of Lords remitted the case to the Court of Probate with directions to grant such probate, with the residuary clause left out, as might be right. Lord Cairns, in refusing to. assent to the argument that a testator who reads the will he signs, or has it read to him, necessarily knows the contents, said (pages 460, 461): "It is said that it has been established by certain cases to which I will presr ently refer that in judging of the validity of a will or of part of a will, if you find that the testator was of sound mind, memory, and understanding, and if you find, farther, that the will was read over to him, or read over by him, there is an end of the case ; that you must at once assume that he was aware of the contents of the will ; and that there is a positive and unyielding rule of law that no evidence against that presumption can be received. My Lords, I should in this case, as indeed in all other cases, greatly deprecate the introduction or creation of fixed and unyielding rules of law which are not imposed by act of Parliament. I think it would be greatly to be deprecated that any positive vule as to dealing with a question of fact should be laid down, and laid down now for the first time, unless the Legislature has, in the shape of an act of Parlia- ment, distinctly imposed that rule." 70 LAST WILLS AND TESTAMENTS. (Part 1 he did not require it to be read over to him, but executed it without further examination. Among other bequests in the will was a legacy of is, 000 to the "British" Royal Infirmary, but in the executed draft the bequest was to the "Bristol" Royal Infirmary, which it appeared from the affidavits expressed his real intention. B. Deane, moved for probate with the substitution of the word "Bris- tol" for "British." Butt, J. I see no reason why the alteration should not be made. I will grant probate with the word "Bristol" inserted, instead of the word "British," on the production of an affidavit that there is no such in- stitution as the "British" Royal Infirmary.*"* 45 This case was disapproved in In the Goods of Louis Schott, [1901] P. 190, where Jeune, P., stated that the registrar informed him that Sir James Hau- nen, who was President at the time, refused to allow the order of Butt, J., in In the Goods of Bushell, supra, to be carried Into practice. Jeune, P., said during the argument of In the Goods cf Louis Schott: "I can strike out words, but I cannot insert anything." The question is really one of the use of extrinsic evidence in the interpreta- tion of provisions In a will. While the question is one in the law of evidence, a mention of some of the problems is needed here. "In the case of adverse claimants of the same gift, the following rules apply: "1, If one (being competent to take) alone precisely answers the whole desig- nation of the will, or is identified by the context, extrinsic evidence tliat the other was intended is incompetent. "2. If both precisely answer the whole designation and indications of the will, a latent ambiguity or 'equivocation' is presented, and extrinsic evidence is competent ; and in this class of cases, direct evidence of the testator's inten- tion, even by proving his declarations of purpose, is admissible. "3. If neither precisely answers the designation and indications of the will, but both do so approximately, this is also a case of latent ambiguity, admit- ting extrinsic evidence ; and in this class of cases, too, according to the better opinion, the testator's declarations of intent may be proved." Abbott's Trial Evidence (2d Ed.) 179. But as to proposition 1. supra, see the argument in 4 Wigmore on Evidence, § 2462, against the rule that you cannot disturb a plain meaning. The theory of the rule is -there declared to be unsound because "The ordinary standard, or 'plain meaning,' is simply the meaning of the people who did not write the document. The fallacy consists in assuming that there is or ever can be some one real or absolute meaning. In truth, there can be only some person's mean- ing ; and that person, whose meaning the law is seeking, is the writer of the document." Id. And on the question of the policy of the rule it is stated that: "The truth is that whatever virtue and strength lies in the argument for the antique rule leads, not to a fixed rule of law, but only to a general maxim of prudent discretion." Id. And the author concludes: "There is, then, neither in theory nor in policy any basis for an absolute rule declaring that when a word has a 'plain meaning' — i. e., by the popular standard — neither the local nor the mutual nor the individual standard can be substituted. Such a rule is still maintained by many utterances like those above quoted. But its vogue Is disappearing." Id. For an extreme case supporting proposition 1, quoted supra from Abbott's Trial Evidence, see Union Trust Co. v. St Luke's Hospital, 74 App. Div. 330, 77 N. Y. Sui)p. 528 (1902), affirmed in 175 N. Y. 505, 67 N. E. 1090 (1903). That case might have been deemed to fall under proposition 3, supra; but in any event Faulkner v. National Sailors' Home, 155 Mass. 458, 29 N. E. 645 (1S02), would seem to be a sounder decision. In Tilton v. American Bible Society, 60 N. H. 377, 49 Am. Rep. 321 (1880), which came imder proposition 2, supra, Doe, C. J., for the court, said: "The question is not by what name any Bible Society was known to others, but Ch, 3) TESTAMENTARY CAPACITY AND INTENT. 71 PATCH V. WHITE. (Supreme Court of United States, 1886. 117 U. S. 210, 6 Sup. Ct. 617, 710, 2t) L. Ed. 860.) Bradley, J. Ejectment for two undivided thirds of a lot of land in Washington city, known on the plats and ground-plan of the city as lot No. 3, square 406, fronting 50 feet on E street north. Plea, not guilty. The plaintiff, John Patch, now plaintiff in error, claims the lot under Henry Walker, devisee of James Walker. The latter died seised of the lot in 1832, and by his last will, dated in September of that year, devised to Henry Walker as follows, to-wit: "I bequeath and give to my dearly-beloved brother, Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected and appurtenances thereto belonging." The testator did not own lot No. 6 in square 403, but did own lot No. 3, in square 406, the lot in controversy ; and the question in the cause is whether the parol evidence offered, and by the court provisionally received, was sufficient to control the description of the lot so as to make the will apply to lot No. 3, in square 406. The judge at the trial held that it was not, and instructed the jury to find a verdict for the defendant. The court, in general terms, sustained this ruling, and ren- dered judgment for the defendant, and that judgment is brought here by writ of error for review upon the bill of exceptions taken at the trial. The testator at the time of making his will, and at his death, had living a wife, Ann Sophia, an infant son, James, a mother, Dorcas Walker, three brothers, John, Lewis, and Henry, (the latter being only eleven years old,) and three sisters, Margaret Peck, Louisa Ballard, and Sarah McCallion, and no other near relations, and all of these are provided for in his will if the change of description of the lot given to Henry is admissible ; otherwise Henry is unprovided for, except in a residuary bequest of personal property in connection with others. The following are the material clauses of the will : After expressing the ordinary wishes and hopes with regard to the disposal of his body and a future life, the testator adds : "And touching wordly estate, where- with it has pleased Almighty God to bless me in this life, I give, devise, which one of several Bible Societies was intended by the testator. The tes- tanaentary name, or other testamentary description, of a legatee (whether an individual or a society, incorporated or unincorporated), is evidence of the testator's intention. Evidence showing what name was given to a Bible So- ciety in its charter, what name it used or recognized as its own, and by what name or names it was known to others, tends to prove a name by which the legatee miijht have been known to the testator, and a name which he might have used in his will to express his intention. But the society intended by him, and identified by competent evidence, is the legatee, by whatever name described in the will, and notwithstanding any other name or names by which It may have been invariably or usually known to others. * * * a person known to the testator as A. B., and to all others as C. D., may take a legacy given to A. B." GO N. H. 382, .383, 49 Am. Rep. 321. Compare In the Gotxla of William Wrenn, [1008] 2 Jr. R. 370. 72 LAST WILLS AND TESTAMENTS. (Part 1 and dispose of the same in the following manner and form." He then gives and bequeaths to his wife one-third of all his personal estate, forever, and the use of one-third of his real estate for life, remainder to his infant son, James. He then proceeds : "I bequeath and give to my dear and affectionate mother, Dorcas Walker, forever, all of lot numbered seven, in square one hundred and six, as laid down on the plan of the city of Washington, together with all the improvements thereon erected and appurtenances thereto belong- ing. "I bequeath and give to my dearly-beloved brother John Walker, forever, all of lot numbered six, in square one hundred and six, with the two-story brick house, back building, and all appurtenances thereto belonging. "I bequeath and give to my dearly-beloved brother, Lewis Walker, forever, lots twenty-three, twenty- four, and twenty-five, in square num- bered one hundred and six, together with a two-story brick building, with a basement story back building, and all appurtenances thereto be- longing and erected on one or more of said lots. "I bequeath and give to my dearly-beloved brother Henry Walker, forever, lot numbered six, in square four hundred and three, together with the improvements thereon erected and appurtenances thereto be- longing." Then, after giving to his three sisters and his infant son, respectively, other specific lots, with houses thereon, he proceeds as follows: "I also bequeath and give to my infant son, James Walker, for- ever, the balance of my real estate believed to be and to consist in lots numbered six, eight, and nine, with a house, part brick and part frame, erected on one of said lots, in square one hundred and sixteen; lots thirty-one, thirty-two, and thirty-three, in square numbered one hun- dred and forty, and a slaughter-house erected on one of said lots ; lots numbered eight and eleven, in square numbered two hundred and fifty ; and lot numbered twenty-eight, in square numbered one hundred and seven; and, further, I bequeath and give to my infant son, James Walker, one thousand dollars, to be paid out of my personal estate, and applied at the discretion of his guardian hereinafter appointed, for the education of my son, James Walker." He then adds : "The balance of my personal estate, whatever it may be, I desire shall be equally divided between my mother, Dorcas Walker, my sister Sarah McCallion, and my brothers, Jno., Lewis, and Henry Walker." It is clear from the will itself : (1) That the testator intended to dispose of all his estate. (2) That he believed he had disposed of it all in the clauses prior to the residuary clause, except the specific lots thereby given to his son. (3) That when he gave to his brother Henry lot number 6, in square 403, he believed he was giving him one of his own lots. On general principles he would not have given him a lot which he did not own; Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 73 and he expressly says: Touching worldly estate, wherewith it has pleased Almighty God to bless me in this life, I give, devise, and dis- pose of the same in the following manner." (4) That he intended to give a lot with improverrjents thereon erected. Now, the parol evidence discloses the fact that there was an evident misdescription of the lot intended to be divided. It shows — First, as before stated, that the testator at the time of making his will, and at the time of his death, did not, and never did, own lot 6, in square 403, but did own lot 3, in square 406; secondly, that the former lot had no improvements on it at all, and was located on Ninth street, between I and K streets, while the latter, which he did own, was located on E street, between Eighth and Ninth streets, and had a dwelling-house on it, and was occupied by the testator's tenants, — a circumstance which precludes the idea that he could have overlooked it. It seems to us that this evidence, taken in connection with the whole tenor of the will, amounts to demonstration as to which lot was in the testator's mind. It raises a latent ambiguity. The question is one of identification between two lots, to determine which was in the testator's mind,' — whether lot 3, square 406, which he owned, and which had im- provements erected thereon, and thus corresponded with the implica- tions of the will, and with part of the description of the lot, and ren- dered the devise effective; or lot 6, square 403, which he did not own, which had no improvements thereon, and which rendered the devise in- effective. It is to be borne in mind that all the other property of the testator except this one house and lot was disposed of to his other devisees, — at least, that was his belief as expressed in his will, and there is no evidence to the contrary; while this lot (though he believed he had disposed of it) was not disposed of at all, unless it was devised to his brother Henry, by the clause in question. In view of all this, and placing ourselves in the situation of the testator at the time of making his will, can we entertain the slightest doubt that he made an error of description, so far as the numbers in question are concerned, when he wrote or dictated the clause under consideration? What he meant to devise was a lot that he owned; a lot with im- provements on it ; a lot that he did not specifically devise to any other of his devisees. Did such a lot exist? If so, what lot was it? We know that such a lot did exist, and only one such lot in the world, and that this lot was the lot in question in this cause, namely, lot number 3, in square 406. Then is it not most clear that the words of the will, "lot numbered six, in square four hundred and three," contained a false description? The testator, evidently by mistake, put "three" for "six," and "six" for "three," a sort of misspeech to which the human mind is perversely addicted. It is done every day even by pains- taking people. Dr. Johnson, in the preface to his Dictionary, well says : "Sudden fits of inadvertence will surprise vigilance, slight avo- 74 LAST WILLS AND TESTAMENTS. (Part 1 cations will seduce attention, and casual eclipses of the mind will dark- en learning." Not to allow the correction of such evident slips of at- tention, when there is evidence by which to correct it, would be to ab- rogate the old maxim of the law, "falsa demonstratio non nocet." It is undoubtedly the general rule that the maxim just quoted is con- fined in its application to cases where there is sufficient in the will to identify the subject intended to be devised independently of the false description, so that the devise would be effectual without it. But why should it not apply in every case where the extrinsic facts disclosed make it a matter of demonstrative certainty that an error has crept into the description, and what that error is? Of course the contents of the will, read in the light of the surrounding circumstances, must lead up to and demand such correction to be made. It is settled doctrine that as a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by extrinsic evidence. Such an ambiguity may arise upon a will, either when it names a person as the object of a gift, or a thing as the subject of it, and there are two per- sons or things that answer such name or description ; or, secondly, it may arise when the will contains a misdescription of the object or sub- ject; as where there is no such person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator. The first kind of ambiguity, where there are two persons or things equally answering the description, may be removed by any evidence that will have that effect, either circumstances or declarations of the testator. 1 Jarm. Wills, 370; Hawk. 9, 10. Where it consists of a misdescription, as before stated, if the misdescription can be struck out and enough remain in the will to identify the person or thing, the court will deal with it in that way, or, if it is an obvious mistake, will read it as if corrected. The ambiguity in the latter case consists in the repugnancy between the manifest intent of the will and the mis- description of the donee or the subject of the gift. In such a case evi- dence is always admissible to show the condition of the testator's fam- ily and estate, and the circumstances by which he was surrounded at the time of making his will. 1 Jarm. Wills, 364, 3G5 ; 1 Roper, Leg. (4th Ed.) 297 ; 2 Williams, Ex'rs, 988, 1032. Mr. Williams (afterwards Mr. Justice Williams) says: "Where the name or description of a legatee is erroneous, and there is no reason- able doubt as to the person who was intended to be named or described, the mistake shall not disappoint the bequest. The error may be recti- fied * * * (1) by the context of the will; (2) to a certain extent by parol evidence. * * * A court may inquire into every material fact relating to the person who claims to be interested under the will, and to the circumstances of the testator, and of his family or affairs, for the purpose of enabling the court to identify the person intended by the testator." Page 989. Again, he says on page 1032: "Mis- takes in the description of legacies, like those in the description of leg- Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 75 atees, m?.y be rectified by reference to the terms of the gift and evidence of extrinsic circumstances taken together. The error of the testator, says Swinburne, in the proper name of the thing bequeathed, doih not hurt the vahdity of the legacy, so that the body or substance of the thing bequeathed is certain; as, for instance, the testator bequeaths his horse Criple when the name of the horse was TuHp, this mistake shall not make the legacy void, for the legatory may have the horse by the last denomination ; for the testator's meaning was certain that he should have the horse. If, therefore, he hath the thing devised, it is not material if he hath it by the right or the wrong name." See, also, Roper, Leg. 297. The rule is very distinctly laid down by Sir James Wigram, who says: "A description, though false in part, may, with reference to extrinsic circumstances, be absolutely certain, or at least sufficiently so to enable a court to identify the subject intended; as where a false description is superadded to one which by itself would have been cor- rect. Thus, if a testator devise his black horse, having only a white one, or devise his freehold houses, having only leasehold houses, the white horse in the one case and the leasehold houses in the other would clearly pass. In these cases the substance of the subject intended is cer- tain, and if there is but one such substance, the superadded descrip- tion, though false, introduces no ambiguity, and as by the supposition the rejected words are inapplicable to any subject, the court does not alter, vary, or add to the effect of the will by rejecting them." Wig. Wills, 53. Of course when the author speaks of the rejected Words as being "inapplicable to any subject," he means inapplicable because the subject is not in existence or does not belong to the testator. The case of Roman Catholic Orphan Asylum v. Emmons, 3 Bradf. Sur. 144, which arose before the surrogate of New York, well illus- trates the application of the rule. There a testatrix bequeathed her shares of the Mechanics' Bank stock to the orphan asylum. She had no bank stock except 10 shares of the City Bank. Surrogate Brad- ford, in a learned opinion, held that the word "mechanics" must be re- jected as inapplicable to any property ever owned by the testatrix, and the rejection of this word left the bequest to operate upon any bank stock possessed by her, and so to pass the City Bank shares. See, also, a learned note of Chief Justice Redfield, 10 Am. Law Reg. (N. S.) 93, to the case of Kurtz v. Hibner, 55 111. 514, 8 Am. Rep. 665, in which he strongly disapproves the decision in that case. Chief Justice Marshall in Finlay v. King's Lessee, 3 Pet. 377 (7 L. Ed. 701), lays down the general rule that underlies all others. "The intent of the testator," says he, "is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and is not con- trary to some positive rule of law, it must prevail, although in giving effect to it some words should be rejected or so restrained in their ap- plication as materially to change the literal meaning of the particular sentence." 76 LAST WILLS AND TESTAMENTS. (Part 1 But it is not our intention to review or classify the decisions. They are legion. The intrinsic difficulty of stating the rule as applicable to all cases is such as to make it presumptuous in any one to attempt to chain it down and fix it in the form of a verbal definition. Sufficient appears from the authorities already quoted to show that while no bill in equity lies to reform a will, because its author is dead, and his intent can only be known from the language he has used, when applied to the circumstances by which he was surrounded, yet a careful study of that language and of those circumstances will generally disclose any inadvertency or mistake in the description of persons or things, and the manner in which it should be corrected, without adding anything to • the testator's language, and thereby making a different will from that left by him. We will only quote further an observation of Chief Jus- tice Thompson, of New York, in Jackson v. Sill, 11 Johns. 201, 6 Am. Dec. 363, which is very pertinent to the present discussion. In that case the court rejected the extrinsic evidence offered to remove a supposed latent ambiguity in a will for the very good reason that it appeared, on examination, that no ambiguity existed. But the Chief Justice justly said: "It is undoubtedly a correct rule in the construc- tion of wills to look at the whole will for the purpose of ascertaining the intention of the testator in any particular part, where such part is ambiguous. But where the intention is clear and certain, and no repugnancy appears between the different parts of the will, no such aid is necessary or proper." Of course, in the case of a latent ambigu- ity, such repugnancy can only appear by means of the evidence which discloses the ambiguity. In view of the principles announced m these authorities, the case un- der consideration does not require any enlargement of the rule ordi- narily laid down, namely, the rule which requires in the will itself suf- ficient to identify the subject of the gift, after striking out the false description. The will on its face, taking it all together, with the clear implications of the context, and without the misleading words "six" and "three," devises to the testator's brother Henry, in substance as follows: "I bequeath and give to my dearly-beloved brother Henry Walker, forever, lot number , in square four hundred and , together with the improvements thereon erected and appur- tenances thereto belonging, being a lot which belongs to me, and not specifically devised to any other person in this my will." In view of what has already been said there cannot be a doubt of the identity of the lot thus devised. It is identified by its ownership, by its having improvements on it, by its being in a square the number of which commenced with four hundred, and by its being the only lot be- longing to the testator which he did not otherwise dispose of. By merely striking out the words "six" and "three" from the description in the will as not applicable (unless interchanged) to any lot which the testator owned ; or, instead of striking them out, supposing them to .have been blurred by accident so as to be illegible,. — the residue of the Ch. 3) TBSTAMBNTART CAPACITY AND INTENT. 77 description, in view of the context, so exactly applies to the lot in question that we have no hesitation in saying that it was lawfully de- vised to Henry Walker. The judgment is reversed, and the cause remanded, with directions to award a new trial.*' In re MEYER'S ESTATE. (High Court of Justice, Probate Division. [1908] P. 353.) Fanny Deborah Meyer and her sister, Emilie Meyer, for many years resided together, keeping a joint establishment. Some time before March, 1907, they, not for the first time, executed mutual wills. On March 4, 1907, their solicitor went to their house by request and took instructions from both of them to make codicils to their re- spective wills in similar terms, and he made a note of these instruc- tions on the original paper whereon he had taken instructions for their wills. After the death of one of the sisters it was discovered, on opening the envelope containing the will of the deceased, that she had executed .4 8 TBe dissenting opinion of Woods, J., in whicti three other Justices concur- red, is omitted. The end of that opinion was as follows: "Our conclusion is therefore that, as the e\idence offered and rejected was for the purpose of explaining a latent ambiguity when there was no ambiguity, either latent or patent, it was properly rejected. "The opinion of the court in this ease allows what seems to us to be an un- ambiguous devise to be amended by striking out a sufficient description of the premises devised, and the blank tlius made to be filled by ingenious conjectures based on extrinsic evidence. This is in the face of the statute of frauds in force in the District of Columbia, where the premises in controversy are situ- ate. Fifty years after the unequivocal devise In question, as written and exe- cuted by the testator, had, as required by law, been placed upon the records of'the District for the information of subsequent purchasers and incumbran- cers, it is allowed to be erased, and, by argument and inference, a new one substituted in its place.- This is not construing the will of the testator ; it is making a will for him. The decision of the court subjects the title of real es- tate to all the chances, the uncertainty, and the fraud attending the admission of parol testimony, in order to give effect to what the court thinks was the in- tention of the testator, but which he failed to express in the manner required by law." The cases pro and contra are collected in 6 L. R. A. (N. S.) 942, note. See, also, 4 Wigmore on Evidence. § 2477. In Collins v. Capps, 23.5 111. 500, So N. E. 934, 126 Am. St. Rep. 232 (1908), the court, while not retracting Kurtz v. Hibner, cited in the principal case, and the cases which follow Kurtz v. Hibner, rejected the word "west" in the description "west half" of a quarter section, and thereby let a specific devisee take the north half of that quarter section. In Collins v. Capps the rule is stated that repugnant elements in a description may be rejected, and if a "sufficient de- scription then remains, when interpreted in the light of surrounding circum- stances, to identify the land, the devise will be given effect," but that the court has "no power to reform a will or correct a mistake therein by inserting or changing words." 235 111., at page 565, S5 N. E., at page 936. See, also, Gano V. Gano, 239 111. 539, 88 N. E. 146, 22 L.. R. A. (N. S.) 450 (1909). 78 LAST WILLS AND TESTAMENTS. (Pait 1 the codicil intended for her sister, and the sister had executed the codicil intended for the deceased. Although two solicitors and an articled clerk were present when the documents were executed, no one appeared to have noticed the mis- take. The solicitors who then acted for the deceased and her sister, and who had been their solicitors for many years, were not the solici- tors now retained and instructing counsel. The Court was moved to grant probate of the will and codicil, omitting from the latter the names of the testatrix and her sister wherever mentioned therein. The surviving sister, who was the residuary legatee under the will of the deceased, consented to the motion. Sir GoRELL Barnes, President. It is unfortunate that such a dif- ficulty as this has arisen, especially having regard to the fact that a solicitor's clerk witnessed the document. But it is quite clear that this lady, though her signature is on the document, never meant to sign this particular codicil at all. She meant to sign a totally different docu- ment. It may be that this document contains provisions corresponding with what she wished to sign, because the two documents were cross- codicils by two sisters. But, as a matter of fact, the deceased in sign- ing her name to this codicil never intended to do that at all, but in- tended to put her signature to another document ; and, unless some au- thority can be produced to me to shew that in such a case the docu- ment she did not intend to sign is to be treated as the one she did in- tend to sign, I do not mean to support it. In my opinion this codicil <:annot stand. The will, of course, can be proved in the ordinary way. The lady who takes the chief benefit under the will, and whose in- terest would be diminished somewhat by the codicil, might very well carry out her deceased sister's wishes by allowing the money which the deceased wished to dispose of by the codicil to be paid out before taking her interest under the will. She is, I understand, executrix under the will ; and, though she does not want the inconvenience of taking probate, she can do so and appoint somebody to manage the matter for her.*^ In re KELSEY. WOOLLEY v. KELSEY. KELSEY v. KELSEY. (Supreme Court of Judicature, Chancery Division. [1905] 2 Ch. 405.) SwiNFEN Eady, J.** Erroneous recital [of advancement] cases may be divided into two classes. In class 1 the testator by apt words directs a legatee to bring a par- ticular sum into hotchpot. He may recite erroneously that a partic- ular sum has been advanced, and direct the legatee to bring that sum,. 47 Sec In the Goods of Hunt, L. R. 3 P. & D. 250 (1875); Nelson v. Mc- Donald, 61 Hun, 400, 10 N. Y. Supp. 273 (1891). 48 The statement of facts is omitted. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. 79 or the sum "hereinbefore recited to have been advanced," into hotch- pot, or he may by other appropriate language shew an intention that the legatee shall absolutely and in any event bring the sum mentioned into hotchpot — in other words, that the legatee shall only take upon the footing of bringing that particular sum into account, and only receiv- ing the balance payable to him on that footing. In class 2 the testator recites the debt owing from the legatee — again he may recite it erroneously — and then directs the debt, "or so much thereof as shall remain unpaid" at the testator's death or the time of distribution, to be deducted and brought into account. In cases of this class the testator really intends that there shall be brought into ac- count the debt or balance thereof which is actually owing at the time of death or distribution. The question is within which class the present case falls. In my judgment the present case more nearly resembles In re Taylor's Es- tate, 22 Ch. D. 495, 500, a decision of the Court of Appeal, and prop- erly falls within class 2, and Stanley is only bound to bring into ac- count the sum really owing. The testator upon the face of the will shows an intention to benefit Stanley, After reciting that his son Stanley is indebted to him in the sum of £5,000, and that he is de- sirous of reducing the amount in which Stanley is so indebted to him to £3,000, the testator forgives him £2,000, part of the £5,000, leav- ing £3,000 remaining owing. Now it appears in fact that no £5,000 had been advanced or was owing at all, but that the only sum ad- vanced by the testator to Stanley was a sum of £80 paid for an in- denture of apprenticeship when he was a lad of fifteen. It is sug- gested that the testator intended advancing the £5,000 to set up Stan- ley in business. That is only Stanley's account, and the solicitor who drew the will has no recollection of telling Stanley anything of the sort. But be that as it may, my opinion is that according to the true construction of this will the testator only intended Stanley to bring into account so much, not exceeding £3,000, of the sum which he owed the testator and as remained unpaid at the date of distribution. In the present case that is £80. It was contended that there was some conflict between In re Aird's Estate, 12 Ch. D. 291, and the decision of the Court of Appeal in In re Taylor's Estate, 22 Ch. D. 495, 500, and that in the later case of In re Wood, 32 Ch. D, 517, North, J,, followed the earlier case of In re Aird's Estate. But In re Wood was merely an instance of class 1, the legatee being directed to bring into hotchpot the sum "hereinbe- fore recited to have been advanced." If, however, the cases cannot stand together, the decision of the Court of Appeal must prevail. The son is, therefore, only bound to bring £80 into account.** 49 In accord as to class 1 are McAlister v. Butterfield, 31 Ind. 25 (1SG9); In re Alexander's Estate, 206 Pa. 47, 55 Atl. 797 (1903); Younee v. Flory, 77 Ohio St. 71, 83 N. E. 305 (1907); Dodson v. Fulk, 147 N. C. 530, 61 S, E, 3S3 (1908) ; In re Lear's Estate (Mo. App.) 124 S. W, 592 (1910), In In re Alex- 80 LAST WILLS AND TESTAMENTS. (Part 1 In re SHARP. MADDISON V. GILL. (Supreme Court of Judicature. Court of Appeal. [1908] 2 Oh. 190.) Appeal from the decision of Joyce, J. [1908] 1 Ch. 372. Cozens-Hardy, M. R.^" In my opinion the decision of Joyce, J., in this case was perfectly right. The testator has made a will which certainly has the merit of brevity. He gave, after certain legacies, his residuary estate upon trust for John Gill, Edgar Gill, the three children of Sarah Mitchell, and here I read in the words of the codi- cil, "and the six children now living of Samuel Frederick Okey by his first wife in equal shares as tenants in common." The facts are that there were at one time six children of Samuel Frederick Okey by his first wife, but at the date of the will, and of the death, only one of those six was living, and the question is whether the residue is divisible between John Gill, Edgar Gill, the children of Sarah, and this one child of Samuel Frederick Okey, or, in other words, whether it is divisible in sixths or whether it is divisible in elevenths. In my opinion it is divisible in sixths. One view v/hich may be taken — and I am not sure that it is not enough to dispose of the whole case — is that, reading the codicil into the will, it is a gift to John Gill and Edgar Gill, the three children of Sarah Mitchell, and such of the six children as are now living of Sam- uel Frederick Okey by his first wife. Of course, if that be the true construction, all .difficulty is got over. I am disposed to think that is the true construction. If, however, that is not the true construction, then it seems to me that by a long series of authorities, which are ab- solutely binding upon this court, it is a plain case where you have a governing intention to benefit children^ — not, I agree, forming a class in the sense in which that word is frequently used in legal language, but children described as being the children of a certain person — coupled with a mistake in the number of those children; and under those circumstances the courts have held, and as it seems to me in accordance with common sense, that the dominant intention to benefit the members so described must have effect given to it by rejecting the inaccurate enumeration. Applying that rule, I find that the dominant intention was to benefit the children of Samuel Frederick Okey by his first wife. There was a mistake in the number then living, and you ander's Estate, supra, the testator charged as an advancement against two sons what was due from one only, but what it seemed he was not irrational in thinking it fair to charge against both, and the court sustained the charge. Comparv* In re Bresler's Estate, 155 Mich. 5G7, 119 N. W. 1104 (1909), where an advancement to the husband of testator's daughter was charged against thfr daughter as money she was "owing." r.o Thft statement of facts is omitted, as are the opinions of Buckley, L. J.^ and Ke>v"Qedy, L. J. Ch. 3) TESTAMENTARY CAPACITY AND INTENT. SI must treat it simply as a gift to the children or child living at the date of the will, and at the date of the death. Now the authorities really seem to me to govern this case. I take one of the earliest cases — I think it is the case of Sleech v. Thorington, 2 Ves. Sr. 560. There a capital sum was given to "the two servants that shall live with me at the time of my death" in equal shares. The testatrix had three servants, and it was held that the legacy wa? divisible in equal thirds. In that case it is quite true that no extra burden was thrown upon the residuary legatee, and it is also quite true that in the absence of extrinsic evidence, which scarcely could have been admissible in a case like that, the whole legacy might have been void for uncertainty but for the application of this rule. But Sii Thomas Clarke there held, following a prior decision of, I think, Lord Hardwicke, that when you found that the dominant idea was "servants living with me at the date of my death," you disregard the numbei two and you take the number three. A problem was put to Mr. Up- john in the course of the argument: What would have been the re- sult there if the gift had been "to my coachman my footman and my two domestic servants living with me at the date of my death," and supposing there had been three instead of two? I cannot bring my- self to doubt that precisely the same result must have followed, and that the reasoning of Sir Thomas Clarke's decision in no way depends upon the fact that the legacy was given solely to the domestic serv- ants living at the death, but the consequence must be exactly the same if they had been colegatees with other persons named as "my coach- man and my groom." I do not propose to go through the subsequent authorities. It is scarcely necessary to refer to Garvey v. Hibbert, 19 Ves. 125, although that was a very strong case and a very leading case. That was a case where a legacy of i600 was given to each of the three children of Dr. Duval. Dr. Duval had four, and it was held that the fourth was en- titled also to a legacy of £600, the result being, of course, that £2,400 was taken out of the residuary estate, instead of only £1,800. I am content to take the principle, for it is a principle, laid down by the courts in the last two centuries, from the judgment of the Court of Appeal in In re Stephenson, [1897] 1 Ch. 75, which, somewhat singu- larly, Mr. Upjohn seems to regard as an authority in his favor. I do not know where I could find more accurately or more aptly stated the nature and the limitation of the rule. I take first of all the passage from the judgment of Lord Russell of Killowen, [1897] 1 Ch. 81: "The proposition must be limited to this : That, where the court, as a matter of construction, arrives at the conclusion that a particular class of persons" — again not using the word "class" in a technical sense, but a particular description of persons — "is to be benefited according to the intention of the testator, if there has been an inaccurate enumera- tion of the persons composing that class, the court will reject the CtoST.WlLLS— 6 82 LAST WILLS AND TESTAMENTS. (Part 1 enumeration;" and Lindley, L. J., in the same case, [1897] 1 Ch. 83, says: "If the court comes to the conclusion, from a study of the will, that the testator's real intention was to benefit the whole of a class, the court should not and will not defeat that intention because the testator has made a mistake in the number he has attributed to that class. The court rejects an inaccurate enumeration." That is what the learned judge has done in the present case; that is what, if it be necessary to consider the cases at all on this will, I propose to do here. I think for the reasons I have given the decision of the learned judge was perfectly right, and that the residue is not divisible in elevenths, but is divisible in sixths. Ch. 4) DISTINGUISHED FROM OTHER DISPOSITIONS. 83 CHAPTER IV WILLS AND TESTAMENTS DISTINGUISHED FROM CER- TAIN OTHER DISPOSITIONS OF PROPERTY SECTION 1.— FROM DEEDS SHARP V. HALL. (Supreme Court of Alabama, 1889. 86 Ala. 110, 5 South. 497, 11 Am. St Eep. 28.) This was a proceeding to probate the will of Ann E. Hornsby, de- ceased. The instrument was signed by Mrs. Hornsby, under seal, was attested by J. J. Davis as a subscribing witness, and also by T. T. Kirk on an acknowledgment of her signature made in his presence on the 23d of February, 1886, and was in the following words: "The State of Alabama, Colbert County. These presents show that, in consideration of the love and affection I have to Julia M. Hall, I do here now give and deliver to her the following property, to wit. a certain lot, or part of lot, situated in the city of Tuscambia, known as part of lot No. 317, according to the plat of said city," describing it by metes and bounds, "together with all the tenements and heredita ments thereunto appertaining, all of which I now hold and possess. But I do hereby reserve the use, control and consumption of the same to myself, for and during my natural life; and this is done, in part, to do away with all need or necessity of taking out letters of admin- istration after my death. Test my hand and seal, this day of February, 1886." The defendants requested the following charge in writing, and ex- cepted to the court's refusal to give the same: "(6) The fact, if it be a fact, that Mrs. Hornsby did not dispose of all the property, must be considered with the other evidence by the jury to ascertain whether or not the instrument was intended to be a will." The other material facts appear in the opinion. There was a trial by jury, and a verdict for the proponent, followed by a judgment admitting the will to pro- bate, and the contestants appeal. Stone, C. J.^ There are few, if any, questions less clearly defined in the law books than an intelligible, uniform test by which to deter- mine when a given paper is a deed, and when it is a will. Deeds, once 1 The statement of facts is abbreviated, and part only of the opinion Is given. S4 LAST WILLS AND TESTAMENTS. (Part 1 executed, are irrevocable, unless such power is reserved in the instru- ment. Wills are always revocable so long as the testator lives and re- tains testamentary capacity. Deeds take effect by delivery, and are operative and binding during the life of the grantor. Wills are ambu- latory during the life of the testator, and have no effect until his death. Out of this has grown one of the tests of testamentary purpose, namely, that its operation shall be posthumous. If this distinction were carried into uniform, complete effect, and if it were invariably ruled that instruments which confer no actual use, possession, enjoyment, or usufruct on the donee or grantee during the life of the maker are al- ways wills, and never deeds, this would seem to be a simple rule, and easy of application. The corollary would also appear to result nat- urally and necessarily that if the instrument, during the Ufe-time of the maker, secured to the grantee any actual use, possession, enjoyment, or usufruct of the property, this would stamp it irrefutably as a deed. The authorities, however, will not permit us to declare such inflexible rule. A declaration of trust by which the grantor stipulates to hold in trust for himself during life, with remainder to a donee, or succes- sion of donees, certainly secures no use, enjoyment, or ysufruct to the remainder-man during the grantor's life. Yet it is a deed, and not a will. 1 Bigelow, Jarm. Wills, 17, and notes; Gillham v. Mustin, 42 Ala. 365. Can a tangible distinction be drawn between such case and a direct conveyance, in form a deed, by which A. conveys to B., to take effect at the death of A.? The human mind is not content with a distinction that rests on no substantial difference. |r -Conveyances re- serving a life-estate to the grantor have been upheld as deeds. 2 Devi. Deeds, § 983 ; Robinson v. Schly, 6 Ga. 515 ; Elmore v. Alustin, 28 Ala. 309; Hall v. Burkham, 59 Ala. 349. In Daniel v. Hill, 52 Ala. I 430, 436, this court said : "A deed may be so framed that the grantor sA reserves to himself the use and possession during his life, and on his j| death creates a remainder in fee in a stranger." r Almost every conceivable form of conveyance, obligation, or writing, by which men attempt to convey, bind, or declare the legal status of property, have, even in courts of the highest character, been adjudged to be wills. The form of the instrument stands for but little.^ When- ever the paper contemplates posthumous operation, the inquiry is, what was intended? 1 Bigelow, Jarm. Wills, 20, 25; Habergham v. Vin- cent, 2 Ves. Jr. 204; Jordan v. Jordan, 65 Ala. 301; Daniel v. Hill, 52 Ala. 430; Shepherd v. Nabors, 6 Ala. 631; Kinnebrew v. Kinne- brew, 35 Ala. 638. The intention of the maker is the controlling in- 2 "It appears from the English authorities prior to the enactroent of the English Wills Act of 1837 that there was judicial sanction for the probating of almost every kind of document whereby property could be disposed of or affected, among which we may enumerate deeds, contracts, promissory notes, bills of exchange, letters and diary entries." Gillett, C. J., in Heastou v. Krieg, 1G7 Ind. 101, 110, 77 N. E. 805, 807, 119 Am. St. Rep. 475 (ItXXJ). On the various kinds of instruments held to be wills see 89 Am. SL Uep. 489, note, 10 Ix R, A. 95, note. Ch. 4) DISTINGUISHED FROM OTHER DISPOSITIONS. 85 quiry, and that intention is to be gathered primarily from the language of the instrument itself. Dunn v. Bank, 2 Ala. 152. The intention cannot be proved by a witness speaking directly thereto. But this does not, in cases of inapt phraseology, — such as the present instrument dis- closes, — preclude proof of instructions given to the draughtsman, in reference to the nature of the paper he was expected to prepare. In Green v. Proude, 1 Mod. 117, 3 Keb. 310, the paper had striking char- acteristics of a deed ; but the court said : "Here being directions given to make a will, and a person sent for to that end and purpose, this is a good will." Speaking of this case, Jarman (1 Bigelow's Ed. p. 19) says : "The court seems to have been influenced by the circumstances that the person who prepared it was instructed to make a will." In Wareham v. Sellers, 9 Gill. & J. [Md.] 98, the court decided that testimony should have been received of "conversations of the de- ceased, made at the time of executing the said paper, and from the other circumstances, that the said P. S. made and executed the said paper as and for his last will and testament, and intended it as such." In this case the controversy was whether the paper was a deed or i will. To the same effect is Witherspoon v. Witherspoon, 2 McCorri (S. C.) 520. So all the attending Circumstances m ay be put i n proof jas aids in de- termining whether the maker intendecPEHe paper should operate as a deed or a will, whenever it is so framed as to postpone actual enjoy- ment under it until the death of the maker. Gillham v. Mustin, 43 Ala. 365 ; Daniel v. Hill, 52 Ala. 430 ; Campbell v. Gilbert, 57 Ala. 569 ; Jordan v Jordan, 65 Ala. 301 ; Rice v. Rice, 68 Ala. 216 ; Lee V. Shivers, 70 Ala. 288 ; 1 Bigelow, Jarm. Wills, 25 ; Gage v. Gage, 12 N. H. 371 ; Mealing v. Pace, 14 Ga. 596, 630 ; Symmes v. Arnold, 10 Ga. 506; Jackson v. Jackson, 6 Dana (Ky.) 257. Another pertinent inquiry: If a paper cannot have operation as a deed, but may as a will, then in doubtful cases we should pronounce it a will, utres magis valeat. Bigelow, Jarm. Wills, 21, 22, 24, 25; Attorney General v. Jones, 3 Price, 379 ; Gage v. Gage, 12 N. H. 371 ; Symmes v. Arnold, 10 Ga. 506. The instrument sought to be established as a will is in form a non- descript. It clearly shows on its face that the donee or grantee was to have no actual enjoyment of the property — no usufruct — during the life of the maker. Its language is: " I do hereby j resome-J he use, contro l, and consumption of the same- to my-seli-iorand during my.nal^ ural life." We Ixold-thatthepaper, on its Jace, falls within the inde--.. Jerminate class, which, according to circumstances, may be pronouncetL. a deed or a will. We also hold that, on the trial of the issue, it was competent to prove that the maker was without lineal or other very near relatives ; that she was attached to the donee, who was a member of her household ; that she sent for the draughtsman of the paper, and employed him to write her will, and that, in pursuance of such employ- ment, he wrote the paper in controversy, and that she signed it with 86 LAST WILLS AND TESTAMENTS (Part 1 a knowledge of its contents, and had it attested ; that she did not de- liver it, but had it placed in an envelope, and indorsed, "Not to be opened till after my death;" and that she carefully preserved it in such envelope until her death. Now, all these facts and circumstances, if proven and beheved, were competent and proper for the considera- tion of the jury in determining the issue of devisavit vel non. And the fact, if believed, that the paper had never been delivered, and there- fore could not take effect as a deed, should also be considered in ar- riving at the maker's intention. * * * The paper over which the present contention arose contains the fol- lowing clause: "And this [the execution of the paper] is done in part to do away with all need or necessity of taking out letters of adminis- tration after my death." This clause is a circumstance which the jury may look at and consider in determining whether Mrs. Hornsby in- tended that Julia M. Hall should take or enjoy any interest during the former's life. It is not conclusive, but must be weighed with the other evidence. It would probably be more weighty if it made provi- sion for Mrs. Hornsby's entire estate. Attempts— fruitless, of course — are sometimes made to dispense with administration, even in docu- ments that are unmistakably testamentary. Charge No. 6, asked by contestants, should have been given. The remaining charges asked by them were, in the light of the evidence, calculated to confuse or mislead, and were rightly refused on that account. We have now considered all the questions we deem necessary. In a very few of the many rulings the probate court erred. Reversed and remanded.^ 8 On deeds as wills, see 89 Am. St. Rep. 494, note; 1 U R. A. (N. S.) 315. note; 4 Prol). Rep. Ann.. 217, note; 10 Prob. Rep. Ann. 97, note; 7 Am. & Ens. Ann. Cas, 790, note. In Wilenou v. Handlon, 207 111. 104, 69 N. E. 892 (1904), a deed ^hich Had been recorded by the grantor, though Intended by him as a will, was can- celed and set aside at the suit of the grantor. "An important question in this case is whether the deeds can be held to be a testamentary disposition of the property described in them. We may premise a discussion of that question by the statement that the circumstan- ces under which they were made, and attending their disposition and cus- tody, are convincing that they were so intended. Indeed, they leave no doubt that'such was the testator's intention. But the rule is that a testator's in- tention cannot be given effect as against the plain and unambiguous provi- sion of a deed, and the rule is settled in this state that where there is nothing in the instrument to indicate a testamentary intent, but, on the contrary, it is in terms plainly a deed conveying a present interest, extrinsic evidence is not admissible to show the contrary. The subject is discussed at length in the case of Clay v. Lavton, 134 Mich. 341, 9G N. W. 458." Hooker. J., in Dod- son V. Dodson, 142 Mich. 586, 105 N. W. 1110 (1905). See, also. Noble v. Fickes, 230 111. 594, 82 N. E. 950 (1907). See 12 Am. & Eng. Ann Gas. 287. note; 13 L. R. A. (N. S.) 1203, note. Ch. 4) DISTINGUISHED FKOM OTHER DISPOSITIONS. 87 SECTION 2.— FROM GIFTS CAUSA MORTIS MARSHALL v. BERRY. (Supreme Judicial Court of Massacliusetts, 18G6. 13 Allen, 43.) Tort in favor of the administrator of the estate of Abby L. Marshall for the conversion of three United States bonds and two United States treasury notes, of $100 each. At the trial in the superior court, before Morton, J., there was evi- dence tending to show that the intestate, who was the plaintiff's wife, died on the 17th of June, 1865, leaving no child; that she was the owner of the property mentioned in the declaration, and while on her death-bed, and then being under the immediate apprehension of death, she directed the defendant upon her decease to deliver the bonds to her brother Edward Berry as a donatio causa mortis ; that at the same time she delivered to the defendant for her mother the treasury notes, and directed him upon her decease to deliver them to her mother as a donatio causa mortis. Neither the mother nor the brother was pres- ent and there was no delivery to either in the lifetime of Mrs. Mar- shall. She died soon afterwards, leaving no debts, and no other prop- erty except to the value of five hundred and fifty dollars ; and the de- fendant claimed said sum, as having been transferred and given to him by the intestate before her death, and had commenced a suit which is now pending to- recover the same. Soon after Mrs. Mar- shall's death, and before the property had been delivered as directed by her, and before the plaintiff had taken out letters of administra- tion, he notified the defendant not to deliver the bonds and treasury notes to the brother and mother respectively. The plaintiff* was ap- pointed as administrator on the 5th of July, 1865, and in the latter part of the same month demanded the bonds and notes from the de- fendant, but not until after the same had been delivered to the brother and mother in pursuance of the directions of the deceased ; and said delivery was without the knowledge of the plaintiff*. The defendant asked the court to instruct the jury that upon this evidence the plaintiff could not maintain this suit; but the judge declined so to rule, and instructed the jury that the plaintiff was en- titled to a verdict for the value of the bonds and notes. The jury re- turned a verdict accordingly, and the defendant alleged exceptions. Wells, J.* The evidence tended to show a good donatio causa mor- tis of a part at least of the property claimed by the administrator. It was property which is now held to be capable of such disposition. De- livery to a third person for the intended donee, to be given to hi^ * Part only of the opinion Is given. 88 LAST WILLS AND TESTAMENTS. (Fart 1 after the decease of the donor, and actual receipt and acceptance by the donee after such decease, complete the conditions of such a gift and perfect the title in the beneficiary. Sessions v. Moseley, 4 Cush, 87 ; 1 Williams on Executors (4th Am. Ed.) 686, note. It would seem, therefore, that the ruling of the judge who tried the case, directing a verdict for the plaintiff, must have been upon the ground which has been argued by the plaintiff's counsel here, namely, that a married woman is not authorized under our statutes to make such a disposi- tion of her separate property. * * * It is contended that a gift mortis causa is a testamentary disposi- tion of estate, and therefore, if mad6 by a married woman, would be contrary to the intent of Gen. St. c. 108, § 9, and, if sustained, would tend to defeat that provision. Although it is of a testamentary char- acter in some of its incidents, and is said to have been deemed by the Roman law "of the nature of legacies ;" 1 Story on Eq. § 607 ; yet inasmuch as, by our law, an actual delivery, or some equivalent act, by the donor, in his lifetime, is necessary to its validity, we think it must be regarded as, in its essential character, a gift. The title passes by the delivery, defeasible, only in the lifetime of the donor, by revo- cation, either express, or implied by his recovery or some other act inconsistent with the gift and indicating a purpose to resume it. The death of the donor perfects the title, by terminating his right or power of defeasance. This mode of transmission can apply only to certain specific articles capable of passing by delivery, and not as a [com- plete?] disposition of the donor's estate. If it purport to be such a disposition, that is, if it assume the province of a will, it is void. Headley v. Kirby, 18 Pa, 336.^ It is not subject to probate, nor to contribution with legacies in case of insufficiency of assets, nor to any of the incidents of administration. The donor at his decease is held to be already devested of his property in the subject of the gift, so that no right or title in it passes to his personal representatives. The donee takes the gift, as it is said, not from the administrator, but against him. It is subject to debts; but only in the same way as other voluntary conveyances and gifts would be. That the wife may thereby evade the provision of the statute, which disables her from depriving her husband of more than half of her personal estate by her will, with- out his consent in writing, may be equally urged against any disposi- tion of it in her lifetime. This consideration does not protect the wife from such disposition of his estate by the husband. Chase v. Red- ding, 13 Gray, 418. We see no reason for guarding the rights of the husband more tenderly than those of the wife. In the case of Jones v. Brown, 34 N. H. 439, the court seem to hold a contrary doctrine, both as to the nature of the gift, and the power of the wife to make it. But if the 6 But see Michener v. Dale, 23 Pa. 59 (1854); Meach v. Meach, 24 Vt. 591 (1852); Thomas v. Lewis, 89 Va. 1, 15 S. B. 389, 37 Am. St. Rep. 848, 18 L. R, A. 170 (1892). Ch. 4) DISTINGUISHED PROM OTHER DISPOSITIONS. 89 current of authorities be interpreted by the thing decided rather than by the phraseolog-y used, it must result in the position before stated, that a donatio causa mortis is not a testament but a gift. Nicholas v. Adams, 2 Whart. (Pa.) 17-22, and Dole v. Lincoln, 31 Me. 422, con- tain strong statements of this view of the subject. * * * The verdict must therefore be set aside and a new trial granted. Exceptions sustained.* 8 "A gift causa mortis resembles a testamentary disposition of property in this: That it is made in contemplation of death, and is revocable during the life of the donor. It is not, however, a testament, but in its essential characteristics is, what its name indicates, a gift. Actual delivery by the donor in his lifetime is necessary to its validity, or if the nature of the property is such that it is not susceptible of corporeal delivery, the means of obtaining possession of it must be delivered. The donee's possession must continue during the life of the donor, for recovery of possession by the lat- ter is a revocation of the gift. But in case of a legacy, the possession remains with the testator until his decease. The title to a gift causa mortis passes by the delivery, defeasible only in the lifetime of the donor, and his death perfects the title in the donee by terminating the donor's right or power of defeasance. The property passes from the donor to the donee directly, and not through the executor or administrator, and after his death it is liable to be divested only in favor of the donor's creditors. In this respect it stands the same as a gift inter vivos. It is defeasible in favor of creditors, not be- cause it is testamentary, but because, as against creditors, one cannot give away his property. A gift causa mortis is not subject to probate, nor to con- tribution with legacies in case the assets are insufficient, nor to any of the incidents of administration. It is not revocable by will [but see .Jayne v. Murphy, 31 111. App. 28 (1889)], for, as a will does not operate until the de- cease of the testator, and the donor, at his decease, Is divested of his prop- erty in the subject of the gift, no right or title in it passes to his representa- tives. The donee takes the gift, not from the administrator, but against him, and no act or assent on the part of the administrator is necessary to perfect the title of the donee. Cutting v. Oilman, 41 N. H. 147, 151 ; Marshall V. Berry, supra [13 Allen, 43, 46]; Doty v. Willson, 47 N. Y. 580, 585; Dole V. Lincoln, 31 Me. 422; Chase v. Redding, 13 Gray, 418; Basket v. Hassell, 107 U. S. 602 [2 Sup. Ct. 415, 27 L. Ed. 500]; 1 Wms. Ex'rs, 686, note 1. A valid gift inter vivos may be made on similar terms. Worth y. Case, 42 N. Y. 362; Dean v. Carruth, 108 Mass. 242; Warren v. Durfee, 126 Mass. 338. A gift causa mortis in some respects may be said to resemble a contract, the mutual consent and concurrent will of both parties being necessary to the validity of the transfer. 2 Kent. Com. 437, 438; 1 Pars. Cont. 234. Con- tracts are commonly understood to mean engagements resulting from negotia- tion. 2 Kent, Com. 437. And in Peirce v. Burroughs, 58 N. H. 302, it was held that the assent of both parties is as necessary to a gift as to a con- tract." Smith, J., in Emery v. Clough, 63 N. H. 552, 554, 555, 4 Atl. 796, 798. 56 Am. Rep. 543 (1885). "It has already been stated that an essential feature of the gift mortis causa is its ambulatory nature before consummation by the donor's death. Not only may the donor, while living, revoke the gift at his pleasure, and give it to another, but revocation follows impliedly in several instances with- out the donor's affirmative action. Thus, the recovery of the donor from the illness or delivery from the peril which induced the gift works its revoca- tion, although the recovery be temporary and death may finally ensue from the same cause. The death of the donee occurring before that of the donor like- wise operates a revocation, similar in effect to the lapsing of a bequest by the death of the legatee before that of the testator. And it has been held that the donatio mortis causa partakes of the nature of legacies to the ex- tent of being revocable by the subsequent birth of issuje to the donor. A donatio mortis causa cannot be revoked by the last will or testament, al- though there be a different testamentary disposition of the specific thing given mortis causa, because the will speaks as of the moment of the test?- 90 LAST WILLS AND TESTAMENTS. (Part 1 SECTION 3.— FROM CONTRACTS TO BEQUEATH OR TO DEVISE ALLEN et at. v. BROMBERG et al. (Supreme Court of Alabama, 1906. 147 Ala. 317, 41 South. 771.) Denson, J.^ The bill in this case was filed to enjoin the probate of a will in the probate court of Mobile county, upon the allegation that its execution was in violation of a contract, made between the testatrix and her husband, to execute similar wills, with the same ex- ecutors, each in favor of the other for life, with remainder to certain public charities. The bill avers that the contract was performed upon the part of the husband who died first, and that the testatrix, his wife, accepted the benefits therefrom. It further avers that the testatrix in 1902 made a will in conformity with her contract with her husband, tor's death, which has vested the previous gift irrevocably in the donee. [See Emery v. Clough, supra ; Bruuson v. Henry, 140 Ind. 455, 39 N. E. 256 (1894). But see Jayne v. Murphy, 31 111. App. 28 (1889)]. But the gift of a legacy to one who has received a gift mortis causa may raise the presumption that the former is a substitution for the latter ; and the donee may sometimes be com- pelled to choose between th^m, not being entitled to both. The gift causa mor- tis is defeasible by reclamation, or any act of the donor inconsistent with the gift and indicating his purpose to resume possession thereof. Hence the gift is revoked by the demand of the donor for a redelivery, although the donee refuse to surrender it. Like gifts inter vivos and legacies, gifts mortis causa are subject to defeasance in favor of the donor's creditors, because, as against them, one cannot give away his property." 1 Woerner's Amer- ican Law of Administration (2d Ed.) *125-*126. "The condition -which inheres in the gift causa mortis is a subsequent con- dition, that the subject of the gift shall be returned if the gift fails by rev- ocation ; in the meantime the gift is executed, the title has vested, the dominion and control of the donor has passed to the donee." Matthews, J., in Basket v. Hassell, 107 U. S. 602, 616, 2 Sup. Ct. 415, 424, 27 L. Ed. 500 (1882). See Knight v. Tripp (Cal.) 49 Pac. 838 (1897). -But in Hatcher v. Bu- ford, 60 Ark. 109, 176, 177, 29 S. W. 641, 643, 27 L. R. A. 507 (1895), the court says: "We think the better doctrine upon the transfer of the title to gifts causa mortis is that which accords with Justinian's definition, and recog- nizes the subject-matter of the gift as becoming the property of the donee in the event of the donor's death ; i. e., the donor's death is a condition precedent to the vesting of the title to the thing given in the donee." On the sufficiency of the delivery needed to effect a gift causa mortis, see 10 Prob. Rep. Ann. 385, note ; 18 L. R. A. 170, note. See, particularly, Thomas V. I^wis, 89 Va. 1, 15 S. E. 389. 37 Am. St. Rep. &48, 18 L. R. A. 170 (1892) ; Cain V. Moon, [1896] 2 Q. B. 283 : Drew v. Hagerty, 81 Me. 231, 17 Atl. 63, 3 L. R. A. 230, 10 Am. St. Rep. 255 (1889); Davis v. Kuek, 93 Minn. 262, 101 N. W. 165 (1904). See, also, Nelson v. Peterson,'202 Mass. 369, 88 N. B. 916 (1909). There can be no gift causa mortis of real property. See 13 Pi-ob. Rep. Ann. 560, note. But it lias been held that a vendor who has contracted to sell realty may make a good gift causa mortis of his interest to his wife by de- livering to her the contract of sale and their joint deed to be placed in escrow Davie v. Davie, 47 Wash. 231, 91 Pac. 950 (1907). 1 The statement of facts is omitted. Ch. 4) DISTINGUISHED FROM OTHER DISPOSITIONS. 91 but in 1905 had executed the will containing different dispositions, the probate of which is opposed. The persons named as executors in the will of 1905, and the beneficiaries therein, are made parties^ defend- ant. The injunction prayed for in the bill was granted. This appeal is from the refusal to dissolve the injunction and to dismiss the bill for want of equity. It cannot be doubted that a person may make a valid agreement to dispose of his property by will in a particular way, and that a court of equity will require its performance. Bolman v. Overall, 80 Ala. 451, 2 South. 62i, 60 Am. Rep. 107.^ In the case cited it is said: "It is not claimed, of course, that any court has the power to compel a person to execute a last will and testament carrying out his agreement to bequeath a legacy ; for this can be done only in the lifetime of the testator, and no breach of the agreement can be assumed as long as he lives, and after death he is no longer capable of doing the thing 8 See Oswald v. Nehls, 233 111. 438, 84 N. E. 619 (1008); Kine v. Farrell, 71 App. Div. 219, 75 N. Y. Supp. 542 (1902). So one may contract to die intestate. Tavlor v. Mitchell, 87 Pa. 518, 30 Am. Rep, 383 (1878); Jones v. Abbott, 228 ifl. 34, 81 N. E. 791, 119 Am. St. Rep. 412 (1907). But the evi- dence of the agreement must be clear. Klussman v. Wessling, 238 111. obS, 87 N. E. 544 (1909). "A party may obligate himself to make his will in a particular way, or to give specific property to a particular person, so as to bind his estate. But the courts will be strict in looking into the circumstances of such agree- ments, and require full and satisfactory proof of the fairness and justness of the transaction. Newton v. Newton, 46 Minn. 33 [48 N. W. 450]; Svanburg V. Fosseen, 75 Minn. 350 [78 N. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. 490]. The remedy for the breach of such a contract depends upon the facts or each particular case. If the contract be an oral one to devise land, and is reasonably certain as to its subject-matter and its stipulations, equity will decree specific performance, if there has been part performance of such a character as will take a parol agreement to convey land out of the statute of frauds, upon principles which courts of equity recognize and act upon. If the consideration for the contract be labor and services, which may be estimated and their value liquidated in money, so as to reasonably make the promisee whole, specific performance will not be decreed. But where the consideration of the contract is that the promisee shall assume a pe- culiar and domestic relation to the promisor, and render to hun services of such a peculiar character that it is practically impossible to estimate their value by any pecuniary standard, specific performance will be decreed. Svanbu/g V. Fosseen, supra; Johnson v. Hubbell, 10 N. J Eq 332, 6_6 Am. Dec 773 notes." Start, C J., in Stellmacher v. Bruder, 89 Mmn. 50 <, 509, 95 N. W.'324, 325, 99 Am. St. Rep. G09 (1903). ' ^ ^ The statute of limitations begins to run against a suit on the contract at the death of the party breaking the contract Banks v. Howard, 117 Ga. 94 97 43 S E 438, 439 (1902). In that case it was stated that: On the other 'hand, if the party who is to be benefited by the will sees proper to waive his rights under the will and sue the estate upon a quantum meruit for the value of the services rendered the deceased in his lifetime, it would seem that the statute of limitations would begin to run from the time the service was rendered and not from the date of the death of the intestate. But contra to tliis statement, see Appeal of Hull (Conn.) 74 Atl. 925 (1910). On contracts to devise or bequeath, see 66 Am. Dec. 783, note ; 4 Prob. Rep. Ann 542, note; 14 L. R. A. 860, note. On the validity of oral agreements to devise land, see 5 Am. & Eng. Ann. Cas. 495, note; 15 L. R. A. (N. S.) 466, note. And see Grindling v. Rehyl, 149 Mich. 641, 113 N. W. 290, 15 L. R. A. (N. S.) 466 (1907). 92 LAST WILLS AND TESTAMENTS. (Part t- ag-reed by him. But the theory on which the courts proceed is to con- strue such agreement, unless void under the statute of frauds or for other reason, to bind the property of the testator or intestate so far as to fasten a trust on it in favor of the promisees, and to enforce such trust against the heirs and personal representatives of the deceased or others holding under them charged with notice of the trust. The courts do not set aside the will in such cases, but the executor, heir, or devisee is made a trustee to perform the contract." As a contract for the execution of a will with particular provisions can be specifically enforced only by fastening a trust on the property of the testator in favor of the promisee and enforcing such trust against the personal representatives and others claiming under the will violating the terms of the contract, it is necessary that the will be first probated, "for it cannot be recognized in any forum until admitted to probate." Describes v. Wilmer, 69 Ala. 25, 44 Am. Rep. 501. Nor does the fact that the agreement embraced the appointment of the same executors in both wills give equity to the bill. As stated, no breach of the agreement in any of its parts can be assumed as long as the testator lives, and after his death he is no longer capable of doing the thing agreed upon. Such agreement could be specifically enforced only by setting aside the latter will and probating the former. This could not be done. A will is in its very nature ambulatory, subject to revo- cation during the life of him who signed it, and is revoked by the ex- ecution of another will. Code 1896, § 4264. After such revocation it can be revived only by the expressed intention of the testator himself. Code 1896, § 4266. For the reasons above given, a decree will be here rendered dis- solving the injunction and dismissing the bill for want of equity. Ch. 6) KINDS OV WILLS AND TESTAMENTS. CHAPTER V KINDS OF WILLS AND TESTAMENTS 93 SECTION 1.— A WILL IN WRITING MYERS V. VANDERBELT. (Supreme Court of Pennsylvania, 1877. 84 Pa. 510, 24 Am. Rep. 227.) Mercur, J.^ This case presents the single question whether an in- strument wholly written and signed with lead pencil may be a valid will. The sixth section of the act of assembly of 8th April, 1833, declares: "Every will shall be in writing." It does not indicate the material on which it shall be written, nor the instrument or materials with which the writing shall be impressed. In Blackstone's Com. book 2, p. 297, it is said : "A deed must be written or I presume printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed." This writer does not prescribe whether the writ- ing shall be in ink or in pencil. He stops with declaring the substances on which it shall be made. Writing is the expression of ideas by visible letters. It may be on paper, wood, stone, or other material. The ten commandments were written with the finger of God on tables of stone. Exodus, xxxi, 18. The general rule undoubtedly is that, whenever a statute or usage re- quires a writing, it must be made on paper or parchment; but it is not essentially necessary that it be in ink. It may be in pencil. This view is sustained by numerous authorities, as applied to contracts generally. Chitty on Cont. 91; Jeffery v. Walton, 2 E. C. L. R. 385; Gray v. Physic, 11 E. C. L. R. 443; Merritt v. Clason, 12 Johns. (N. Y.) 102, 7 Am. Dec. 286; Clason v. Bailey, 14 Johns. (N. Y.) 490. The same rule applies to promissory notes. Byles on Bills, 134; Story on Prom. Notes, § 11; Gray v. Physic, supra; Closson v. Stearns, 4 Vt. 11, 23 Am. Dec. 245 ; Partridge v. Davis, 20 Vt. 499 ; Brown v. Butchers' & Drovers' Bank, 6 Hill (N. Y.) 443, 41 Am. Dec. 755. So a book account made in pencil was held admissible in evidence as a book of original entries. Hill v. Scott, 12 Pa. 169. In 1 Red- field on Wills, § 17, pi. 2, it is said "the English Statute of Frauds 1 The statement of facts is omitted. 94 LAST WILLS AND TESTAMENTS. (Part 1 expressly required that a will of lands should be in writing. But it has been held that a will written in pencil, instead of ink, would be good," citing In re Dyer, 1 Hag. Ec. 219. That a will written in pen- cil may be valid was also ruled in Raymes v. Clarkson, 1 Phil. Ecc. 22 ; Dickenson v. Dickenson, 2 Phil. Ecc. 173. In Main et al. v. Ryder, 84 Pa. 217, speaking of the signature of a testator, it was said the manifest object of the act is to permit a will to be signed as any other written instrument may be signed. So we think the authorities establish that a valid will may be drawn with the same materials that will suffice for the drawing of any written con- tract. As was well said by Mr. Justice Coulter in Hill v. Scott, supra, they abundantly prove that a writing in pencil is equivalent and tanta- mount to a writing in ink. The validity of a will written or signed with a lead pencil was re- ferred to, but left undecided, in Patterson v. English, 71 Pa. 459 ; but the opinion by Mr. Justice Williams contains a strong declaration against the propriety of writing or signing in that manner. The rea- son given against it is the facility with which the writing may be al- tered or effaced. There is force in this suggestion. No prudent scrive- ner will write a will in pencil, unless under extreme circumstances. Whenever written, any appearance of alteration should be carefully scrutinized. Yet inasmuch as the statute is silent on the question, we cannot say the mere fact that it is written or signed in pencil, thereby makes it invalid. Jt is nevertheless a writing, known and acknowl- edged as such by the authorities, and fulfils the requirement of the statute. Judgment affirmed.^ SECTION 2.— HOLOGRAPHIC (OR OLOGRAPHIC) WILLS MILAM V. STANLEY. (Court of Appeals of Kentucky, 1908. Ill S. W. 296, 33 Ky. Law Rep. 7S3, 17 L. R. A. [N. S.] 1126.) PIoBSON, J. W. R. Fletcher was convicted in the Logan circuit court of rape, and sentenced to be hung. He appealed to this court, where the judgment was affirmed. He applied to the Governor for clemency, and his application was denied. The date of his execution 2 See Tomliuson's Estate, 133 Pa. 245, 19 AU. 482, 19 Am. St Rep. 637 (189'. X. And be it further enacted, that no appointment made by will, iu exercise of any power, shall be valid, unless the same be executed in manner hereinbefore required; and every will executed in manner hereinbefore required shall, so far as respects the execution and attes- tation thereof, be a valid execution of a power of appointment by will, nptwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. XIII. And be it further enacted, that every will executed in manner hereinbefore required shall be valid without any other publication thereof. 7 Wm. IV & 1 Vict. c. 26, §§ I, IX, X, XIII (1837).» 8 For the provision of the Wills Act defining the wills and estates to which the act did not extend, see section XXXIV of the act in the appendix, post, p. 767. Cost. Wills— * 114 LAST WILLS AND TESTAMENTS. (Part 1 THE WILLS ACT AMENDMENT ACT, 1852. Be it therefore enacted * * ♦ (as follows): L * * * Every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, be deemed to be valid within the said enactment [the Wills Act], as explained by this act, if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall inter- vene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall ap- pear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature, * * * but no signature under the said [Wills] Act or this act shall be operative to give effect to any disposi- tion or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made." 15 & 16 Vict. c. 24, § I (1852). ECTION 2.— TESTATOR'S KNOWLEDGE OF THE INSTRU- MENT'S CONTENTS BEYER et al. v. HERMANN et a!. (Supreme Court of Missouri, Division No. 1, 1903. 173 Mo. 295, 73 S. W. 1G4.) Marshall, J.' This is an action to contest the will of Anna Her- mann, nee Burger. * ♦ * 2. The second charge is that the will was not executed according to law. « Part only of the opinion Is given. Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 115 The plaintiffs claim that the justice prepared a will, and read it and explained it to the decedent, and that in attempting to sign her name to it she dropped the pen and blotted the paper, and thereupon the justice recopied the will, and, without reading or explaining the copy to her, it was executed, she making her mark, and the witnesses sign- ing their names. The testimony of the justice is not altogether clear as to whether he read the will to the decedent after he recopied it or not. It is suscep- tible of the construction that he did, and also that he did not do so. But whether he did or not, it is uncontradicted that the copy was a true copy of the will that was spoiled by being blotted, and that the spoiled will was read and explained to her, and in fact was drawn as she directed. This being true, she knew the contents of the copy as well as she did of the first draft, and she declared to the witnesses, when she executed the copy, that it was her will. This fills the re- quirements of the law that she shall know the contents. Berberet v. Berberet, 131 Mo. 399, 33 S. W. 61, 52 Am. St. Rep. 631. She could not read written English, so she had to depend upon the justice to know the contents of the will. He could impart such knowledge to her either by reading the will or explaining its contents to her. In either case she would only know what he read or what he said about it. She would not know whether he read what was written or what he said he had written. Therefore she had to rely upon the integrity of the justice to read or explain correctly what he had written. No one else would know whether he had done so or not. This being true, it can make no difference in law that the copy was not read to her, for she would still be in the dark as to whether it was a true copy or not, and also whether either was as it was read or explained to be. The first draft was read to her, correctly, so the justice says, and so it must be taken, because no one else could know whether it was or not. The copy was a true copy of the first draft, whose contents she knew, so the .justice say§, and so it must be, for no one else could know whether it was or not. The whole matter, therefore, rests upon the integrity of the justice, and there is no more reason for doubting that the copy is a true copy than there is for doubting that the justice (or any one who writes a will) read or explained it correctly and accurately. This charge must, therefore fail, and the will be regarded as being executed according to law. * * * Finding no error in the record, the judgment of the circuit court is affirmed. All concur.'' 7 See Lipphard v. Humphrey, 209 U. S. 204, 28 Sup. Ct. 561, 52 L. Ed. 783 (1908). In Bradford v. Blossom, 207 Mo. 177, 105 S. W. 289 (1907) the testa- trix instructed the person whom she wanted to appoint trustee under her will to have a will drawn making certain dispositions of property. The trus- tee had an entirely different will drawn and executed by the testatrLx. The court declared (207 Mo., at pages 226-227, 105 S. W. 304) that "there is not a Bcjntilla of evidence in this record which tends to show the testatrix had any knowledge whatever of the provisions of or contents of the will she was 116 LAST WILLS AND TESTAMENTS. (Part 1 SECTION 3.— TESTATOR'S SIGNATURE BROWN V. SACKVILIvE. (Court of Common Bench, 1552-1558. Dyer, 72a.) A man seised of lands in fee simple holden in socage (being sick in bed) sent for Mr. Atkins, a man learned in the law, and desired his counsel in making his will, who took notes of it, and afterwards de- parted from the devisor, and about eight of the clock in the morning put the said will in writing according to due form of law, agreeably to the said notes, and according to the said will declared unto him, which was wholly written before eleven o'clock of the same day, and the devisor died at twelve, so that he did not hear the said will read. Ex depositione Mr. Atkins. It was moved, whether this was a good will, or not ? And by the opinion of The Court in the Bench in Easter Term, 4 & 5 Ph. & M. in a writ of quibus brought by Brown against Sackville, in evidence upon the trial of the issue nul disseisin, that such a will is good enough, and sufficient by the statute. So the same point was doubted upon the last will of Hinton of London in the court of wards, M. 4 & 5 Eliz., whereof articles were made in the second year of E. 6, ut supra, and read to the devisor by the scrivener, and written at length after his death, and holden as above well enough.* BLACKWOOD v. DAMER. (Court of Delegates, 1783. 3 Phillim. 458, note.) M. Janssen wrote with his own hand instructions for a will, in which he left the residuum to his youngest daughter, since married to the Honorable Lionel Damer. The attorney, in writing over the will, omitted the residuary clause; some other variations were made; the draft was read over to the testator, and left in his custody two days ; the will was executed in due form, contained legacies to the executors. Thef testator always afterwards expressed himself as having left the residuum to his youngest daughter. The attorney deposed, that it was merely an omission. The other variations he, supposed he had received verbal instructions to make signing" and directed the entry of a judgment rejecting the will. On the ne- cessity of adirniative proof of knowledge by testator of the contents of the will, where the testator is unable to read, see 14 Am. & Eng. Ann. Gas. 876, note. 8 Rut where the testator orally announced his will, and his statement was written in the form of a will, without any direction by him that it be done, and then was not read over to hiui, nor assented to by him, it was held not to be a will. Nash v. Edmunds, Cro. Eliz. 100 (1588). Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 117 The court below had pronounced for the instructions as part of the will. The Delegates decreed that the residuary clause should stand as part of the will, but no other part of the instructions.* LEMAYNE v. STANLEY. (Ck)urt of Common Pleas, 1681. 3 Lev. 1.) In ejectment upon Not guilty, and a special verdict, the case was ; Stanley seised in fee writ his will with his own hand; beginning, "In the name of God, Amen, I John Stanley make this my last will and tes- tament," and thereby devised the lands in question, and put to his seal, but did not subscribe his name, only had it subscribed by three wit- nesses in his presence ; and all this was done after 29 Car. 2, against Frauds and Perjuries; and whether this was a good will to pass the lands, was the question. And after several arguments it was adjudged by the whole court, sc. North, Wyndham, Charlton, and Levinz, to be a good will ; for being written by himself, and his name in the will, it is a sufficient signing within the Statute, which does not appoint where the will shall be signed, in the top, bottom, or margin, and there- fore a signing in any part is sufficient. And per North, Wyndham, and Charlton, the putting of his seal had of itself been a sufficient signing within the Statute; for signum is no more than a mark, and sealing is a sufficient mark that this is his will; but Levinz doubted of this upon the case in Roll. 1 Abridgm. 245, § 25. Submission to an award ita quod it be made, signed, and delivered, the arbitrator makes an award, and delivers it, but does not sign it : Et Per Cur'. It is not good; but all agreeing upon the other reason, judgment was ac- cordingly given for the defendant. EVERHART et al. v. EVERHART. (Circuit Court, S. D. Mississippi, W. D., 1888. 34 Fed. 82.) Hill, J.^" * * * With the purpose of settling the rights of the parties without further litigation, as I suppose, both parties request me to determine whether or not the proof of the subscribing witnesses taken before the clerk of the chancery court of Issaquena county, and upon which the paper writing was admitted to probate by the clerk in common form, is sufficient to establish the validity of the paper writ- ing as the last will and testament of said M. Everhart, so as to vest the title to the lands in controversy in the defendant. » The delegates were Mr. Justice Willes, Mr. Baron Eyre, Mr. Justice Nares, and Dr. Machum. 10 Part only of the opinion is given. 118 LAST WILLS AND TESTAMENTS. (Part 1 The testimony is quite brief, and is in substance as follows : That said M. Everhart requested one of the witnesses to write his will^ which he did, as dictated by said Everhart; that when it was written said Everhart attempted to sign it, but from physical debility was un- able to do so, but in the attempt made a small mark or scratch on the paper, and failed to do more ; that he said he made and published the paper as his last will and testament. The paper writing shows a small mark or scratch on the left-hand comer, but no name attached to it. There are also two small marks or dots on another part of the paper, very dim, and look as though made with the point of a pencil, and not at the usual place for signing such a paper, by the party executing it. The name of M. Everhart only appears in the commencement of the paper, which it is evident was not intended as a signature of the tes- tator. The draughtsman was not requested to sign the testator's name, and the testator's effort to sign the paper himself shows that he did not recognize the signature made in the commencement of the writing by the draughtsman as his signature.^ ^ The place where made, and the character of the small marks and dots, furnish no evidence that they were made as a substitute for the signature of the testator. It is true that a testator may sign his will by making a mark, but he must intend the mark as a substitute for his name ; and when there is no name written, or anything indicating who made the mark, and especially when the mark is made at an unusual place for the signature, it ought to require very satisfactory evidence that the mark was in- tended by the testator as his signature, or as a substitute for it. As already stated, to make a will valid to pass the title to real estate, under the laws of this state, it must be in writing and signed by the testator, or by some other person in his presence, and by his special direction. This paper writing was not signed by any other person. I am satisfied that the proof exhibited with the paper writing as the proof upon which it was admitted to probate by the clerk of the chancery court, fails to show that the testator intended the marks made by him to be a substitute for his signature, if indeed he knew that he had made them at all. I am satisfied, looking at the face of the paper propounded as the last will of said M. Everhart, and the proof of the subscribing wit- nesses exhibited with it, that this paper cannot be held a valid will, so as to vest the defendant with the title to the lands described in the bill. But if the defendant desires so to do, he can answer the bill, when an II In Armstrong's Ex'r v. Armstrong's Heirs, 29 Ala. 53S (1857), a will read- ing "I, James Armstrong," etc., dictated by tlie testator and read over aurt approved by him, was laeld to be a valid Avill. Tlie "James Armstrong" dic- tated at the beginning of tlie will was deemed the signature of the testator, put there by another person in his presence and by his direction. See Adams V. Field, 21 Vt. 256 (1849). For a discussion of the admissibility of parol evidence to show the testator's intent to treat his name at the beginning as a signature, see 42 Am. Dec. 571, note; 70 Am. Doc. 442. note. See, also,. Warwick v. Warwick, 80 Va. 59C, 10 S. E. 843, 6 L. K. A. 775 (1800). Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 119 issue will be made up to be tried by a jury upon the evidence produced by both parties ; and upon such trial what is here said will have no influence with either court or jury, but the cause will be determined as though these remarks had never been made, or even conceived.^ ^ RILEY v. RILEY. (Supreme Court of Alabama, 18G0. . 36 Ala. 406.) The proponent of the will of William M. Riley offered T. J. Rob- bins as a witness, who testified that he wrote the instrument propound- ed for probate at the^ request of said W. M. Riley, and subscribed said Riley's name to it as testator, at his request, in his presence, and by his direction; that he also wrote the name of Martha O. Nettles as a subscribing witness thereto, at the request of said Riley ; that said Martha O. Nettles was present at the time, and did not object to his writing her name, but assented and agreed thereto ; that said Riley requested him to write the name of said Martha O. Nettles as a wit- ness to said instrument, saying that he (witness) could write better than she could ; that said Martha O. Nettles could read and write very well — perhaps better than himself; and that he also subscribed his own name as a witness to said instrument. Martha O. Nettles testified in corroboration. Over objection the court left it to the jury to say whether the will was duly attested. R. W. Walker, J.^^ 1. The decree in this case must be reversed. It was for the court to determine what facts were necessary to estab- 12 On signing by mark, see 4 Prob. Rep. Ann. 258; 22 L. R. A. 370, note. On a signature by mark made by one able to write, see In re Pope, 139 N. C. 484, 52 S. E. 235, 7 L. R. A. (N. S.) 1193, 111 Am. St. Rep. 813 (1905) ; Main v. Ryder, 84 Pa. 217 (1877). The mark of testator is effective as a signature, although in writing the testator's name next to the mark the scrivener mis- spells it. Succession of Crouzeilles, 106 La, Ann. 442, 31 South. 64 (1901). Or puts down a wrong first name. Rook v. Wilson, 142 Ind. 24, 41 N. E. 311, 51 Am. St. Rep. 163 (lS9.o). The mark may consist of an X, Thompson v. Thompson, 49 Neb. 157, 68 N. W. 372 (1896) ; or of the testator's first name, Estate of Knox, 131 Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Ain. St. Rep. 798 (1890) ; or of his whole name misspelled by him. Succession of Bradford, 124 La. 44, 49 South. 972 (1909) ; or of his whole name stamped at the proper place, Jenkins v.- Gaisford, 3 Sw. & Tr. 93 (1863). That the hand of testator may be guided in signing his name or making his mark, see Wood v. Rhode Island Hospital Trust Co., 27 R. I. 295, 61 Atl. 757 (1905) ; 5 Prob. Rep. Ann. 418. note. "The statute, in authorizing the execution of a will by a mark, can only mean a mark made with the intent to execute the will thereby. Without sucli Intent, paraphrasing the language of Chief Justice Gibson in Greenough v. Greenough, 11 Pa. 497, 51 Am. Dec. 567 (1S49) 'a cross, or a scratch, or a scrawl, or a dot, or a dash * * ♦ imports no more than would a blot or a stain, or any other accidental discoloration of the paper at the foot of the instru- ment' '^ Mitchell, J., in Plate's Estate, 148 Pa. 55, 59, 23 Atl. 1038, 33 Am. St. Rep. 805 (1892). 13 The statement of facts is abbreviated, and part only of the opinion is given. See further report post, p. 183. 120 LAST WILLS AND TESTAMENTS. (Part 1 lish the signing and attestation of the will, within the meaning of the Code. But the effect of the charge given was to refer the decision of this legal question to the jury. Thomason v. Odum, 31 Ala. 108, 68 Am. Dec. 159 ; Wright v. Boiling, 27 Ala. 259. As, however, the main questions presented by the record will doubt- less arise on another trial in the probate court, we deem it proper to express our views in regard to them at this time. 3, In order to constitute a valid signing of a will by the testator, it is not essential that he should write his own name. The statute ex- pressly allows the will to be signed by another for him ; and his name, when written by another for him, in his presence, and by his direction, will have the same effect as if written by himself. Armstrong v. Arm- strong, 29 Ala. 541; 1 Wms. Ex'rs, 69; Code, § 1611. And though Lord Sugden has expressed a contrary opinion, it seems to be settled that such signing for the testator may be made by a person who is one of the subscribing witnesses to the will. In re Baily, 1 Curteis, 914 ; Smith V. Harris, 1 Robertson's Eccl. R. 262; 1 Wms. Exrs. 69-70. * * * Decree reversed and cause remanded.^* In re SEAMAN'S ESTATE. ALBRIGHT et al. v. NORTH et al. (Supreme Court of California, 1905. 146 Cal. 455, 80 Pac. 700, 106 Am. St. Rep. 53.) Per Curiam.*' A document purporting to be the last will and testa- ment of Henry Seaman, deceased, was presented to the superior court, and an application for its probate was denied upon the ground that it had not been properly executed, in that the name of the testator was not subscribed at the end thereof. From the judgment thus entered, the present appeal has been taken. The instrument was written upon a printed form or blank consist- ing of four pages folded in the middle, like ordinary legal cap. Upon 14 See Elston v. Montgomery, 242 111. 348, 90 N. E. 3 (1909). In Waite v. Frisbio. 45 Minn. 361, 303. 47 N. W. 1069, 1071 (1891). Gilfil- lan, C. J., for the court, announced a strict rule on the subject of the ex- press direction by the testator that another sign for him. He said: "The di- rection to sign must precede the act of signing. Mere knowledge by the testator that another has signed, or is signing, without previous direction, and assent to or acquiescence in it, to be inferred from looks, or a nod of the head, or motion of the hand, or other aml)iguous token, is not enough. We do nut mean that the express direction must be in words. A person unable to speak may sometimes be able to convey his wish that another sign his name as un- equivocally by gestures as though he spoke the words; but the meaning of such gestures must be as clear and unambiguous as the words, and the act of Bigning must be in obedience to the direction thus conveyed. It follows, from what we have said, that mere assent or acquiescence implied by, or to be in- ferred from, looks or gestures, when another suggests that A. or B. sign the name, is not such an express direction as- the statute requires." 16 The concurring opinions of Bealty, C. J., and Angellotti, J., are omitted. Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 121 the upper portion of the first page was a printed heading and introduc- tion, occupying about one-fourth of the page. In the printed form the remainder of that page and the entire second page were left blank.' The dispositive parts of the will were written upon the blank portion of the first page and about one-fourth of the blank portion of the sec- ond page, and at the close thereof a line was drawn in red ink trans- versely to the bottom of the second page. At the top of the third page there was printed a form for the appointment of an executor, and a clause revoking all former wills, and immediately after this a testimo- nium clause, underneath which, and extending to a little below the middle of the page, was printed an attestation clause. The blanks left for the name of an executor and for the attestation of the will were left unfilled. The remainder of the third page and the first or upper half of the fourth page are blank. The printed form was prepared to be twice folded from the bottom to the top, and across the face of the paper as thus folded, and at the top thereof, were the printed words : "The Last Will and Testament of," under which the scrivener had written, "Henry Seaman." Blank forms for a date and for filing the instrument with the clerk were printed underneath this, the whole oc- cupying the upper half of this outside face of the paper when folded. Underneath this printed matter was written, "Henry Seaman," and underneath his name the word "witness," and underneath that the names, "M. O. Wyatt, J. H. Wright." The remainder of the fourth page was blank. It was shown at the hearing that the decedent had written his name at that place in intended execution of his will, and that at his request Messrs. Wyatt and Wright had signed their names as witnesses there- to. It was also shown that, with the exception of these signatures, the instrument is in the same condition as it was when fhe decedent signed his name thereto. The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only upon a compliance with the requirements of the statute. The formalities which the Legis- lature has prescribed for the execution of a will are essential to its validity, and cannot be disregarded. The mode so prescribed is the measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with this mode. For the purpose of determining whether a will has been properly executed, the inten- tion of the testator in executing it is entitled to no consideration. For that purpose only the intention of the Legislature, as expressed in the language of the statute, can be considered by the court, and whether the will, as presented, shows a compliance with the statute. Estate of Walker, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St Rep. 104. Section 1276, Civ. Code, requires every will, other than nuncupative or olographic, to be "subscribed at the end thereof" by the testator, in the presence of two attesting witnesses, each of whom must, in his 122 LAST WILLS AND TESTAMENTS. (Part 1 presence and at his request, sign his name as a witness "at the end of the will." This section is from the Revised Statutes of New York^ adopted by that state in 1830. These provisions are incorporated into the Civil Code prepared for adoption by that state by David Dudley Field, and, in their report of a Civil Code to the Legislature of 1871, the code commissioners of this state refer to this Code as the source of the section. In considering the section the decisions of that state upon the same question are therefore entitled to great consideration. A similar statute was enacted in England in 1837 (St. 1 Vict. c. 26), but the decisions under that statute as to what constitutes the "end" of a will are inconsistent and contradictory. In the earlier cases the stat- ute received a very liberal construction in reference to the amount or €xtent of blank space that might be left between the termination of the will and the signature of the testator, but afterwards the same judge who gave this construction, as did also the Privy Council in afifirming^ his judgment, stated that he felt it necessary to construe the act more strictly, on the ground that the provision was intended to prevent any addition being made to the will after the deceased had executed it (Smee v. Bryer, 1 Robt. Eccl. 616; Williams on Executors, *67) ; and the statute was construed as requiring the name to be written im- mediately after the termination of the testamentary provisions, with- out any space whatever between them. It was in view of these dif- ferent constructions of the statute that in 1852 Parliament passed an explanatory act (St. 15 Vict. c. 24) known as "Lord St. Leonard's Act," which provided that the will should be valid "if the signature be so placed at or after or following or under or beside or opposite to the end of the will, that it should be apparent on the face of the will that the testator intended to give effect by such his signature to the writ- ing signed as his will," and that no such will should be affected by the circumstance that "a blank space shall intervene between the con- cluding end of the will and the signature," etc. ; thus permitting an in- quiry into the intention of the testator, contrary to the rule on that subject in this state. The provisions of this act are so directly opposed to section 1276, Civ. Code, that the decisions thereunder are not en- titled to any consideration in interpreting the section. Estate of Walk- er, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104. See, also. Matter of Conway's Will, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796. The provision that the will must be subscribed at the end thereof requires the testator's name to be written at the termination of the testamentary provisions which he makes in the instrument. The "will" at whose end the name is to be subscribed is not the sheet of paper or other material upon which these testamentary provisions are writ- ten, but it is the declaration which the testator has written thereon for such testamentary disposition, and the "end thereof" is not the foot or physical end of the sheet of paper upon which the "will" is written, but is the physical termination of the testamentary provisions which Ch. 6) EXECUTION OF "WRITTEN WILLS AND TESTAMENTS. 123 constitute the will. "The act of authentication must take place at the termination of the testamentary disposition." McGuire v. Kerr, 2 Braclf. Sur. (N. Y.) 244. "To say that, where the name is, there is the end of the will, is not to observe the statute. That requires that, where the end of the will is, there shall be the name. It is to make a new law to say that, when we find the name, there is the end of the will. The instrument offered is to be scanned to learn where is the end of it, as a completed whole, and at the end thus found must the name of the testator be subscribed." Sisters of Charity v. Kelly, 67 N. Y. 409; Matter of O'Neil's Will, 91 N. Y. 522; Matter of An- drews, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294. The requirement that the name shall be subscribed "at" the end of the will is not satisfied by having that name written at any place "after" the termination of the written matter, irrespective of the relation which such place bears to the concluding portion of the will. This provi- sion does not, however, of necessity, require that it shall be in imme- diate juxtaposition with the concluding words of the instrument, but that it shall be so near thereto as to afford a reasonable inference that the testator thereby intended to indicate an authentication of the in- strument as a completed expression of his testamentary purposes. It must appear upon the face of the instrument not only that he intended to place it at the end of his testamentary provisions, but that he has in fact placed it in such proximity thereto as to constitute a substan- tial compliance with this requirement of the statute. While a slight space, such as a single line, or even more, might be left blank between the written matter and the name, without impairing the validity of the will, yet to leave blank an entire page between the two would indicate a disregard of the requirements of the statute, whether resulting from ignorance or intention, which would prevent its admission to probate. See Soward v. Soward, 1 Duv. (Ky.) 126. Appellants have cited the case of Oilman's Will, 38 Barb. (N. Y.) 364, in which the written matter of the will terminated four lines above the bottom of the page where the testator signed his name, and in which the court said : "An instrument is signed at the end when nothing intervenes between the instrument and the subscription. The place named in the statute is the end. The end of an instrument in writing commences and continues until something else or some other writing occurs." This language may have been appropriate to the will then before. the court, but, as a construction to be given to the statute, it does not meet with our approval, and is, moreover, incon- sistent with the construction given in the above cases cited from the Court of Appeals of that state. Particularly do we dissent from the definition of "end" as given in the last sentence of the quotation. The formalities which the Legislature has prescribed for the ex- ecution of wills are to provide against false and fraudulent wills, and to afford means of determining their authenticity. A very evident 124 LAST WILLS AND TESTAMENTS. (Part 1 purpose of requiring the testator's name to be subscribed at the end of the will is not only that it may thereby appear upon the face of the instrument that the testamentary purpose which is expressed there- in is a completed act, but also to prevent any opportunity for fraud- ulent or other interpolations between the written matter and the sig- nature. McGuire v. Kerr, 2 Bradf. Sur. (N. Y.) 244; Matter of O'Neil's Will, 91 N. Y. 516 ; Matter of Andrews' Will, 43 App. Div. 394, 60 N. Y. Supp. 141 ; s. c, affirmed, 163 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294 ; Matter of Hewitt's Will, 91 N. Y. 261; Matter of Conway's Will, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796; Soward v. Soward, 1 Duv. (Ky.) 126; Ramsey v. Ramsey, 13 Grat. (Va.) 664, 70 Am. Dec. 438 ; Warwick v. Warwick, 86 Va. 596, 10 S. E. 843, 6 L. R. A. 775 ; Wineland's Appeal, 118 Pa. 37, 12 Atl. 301, 4 Am. St. Rep. 571. "The statutory provision re- quiring the subscription of the name to be at the end is a wholesome one, and was adopted to remedy real or threatened evils. It should not be frittered away by exceptions" (Sisters of Charity v. Kelly, 67 N. Y. 409) "or by judicial construction" (Matter of Whitney, 153 N. Y. 259, 47 N. E. 272, 60 Am. St. Rep. 616), "or defeated by lax interpretation" (Clancy v. Clancy, 17 Ohio St. 134). "The purpose of the law which requires the subscription to be at the end of the will is to prevent fraudulent additions to a will before or after its execu- tion, and the statute should be so construed as to accomplish this pur- pose." Younger v. Duffie, 94 N. Y. 535, 46 Am. Rep. 156. It is immaterial that there is no charge of fraud in any particular case. A failure to comply with the formalities required by a statute enacted for the prevention of fraud is not excused by showing that in the particular case under consideration there was no fraud. The stat- ute in question was enacted to protect the wills of the dead from al- teration. If opportunity for such alteration is permitted, the fraud may be so deftly accomplished as to prevent its discovery, and for this reason the construction to be given the statute should be such as will control the execution of all wills. "The legislative intent was doubtless to guard against fraud and uncertainty in the testamentary disposition of property by prescribing fixed and certain rules by which to determine the validity of all instruments purporting to be wills of deceased persons." Matter of the Will of O'Neil, 91 N. Y. 516. It is true, as suggested by the appellants, that there is the same opportunity for fraudulent interpolations in the will if the testator should leave sufficient space therefor between the several items of his will. But it is a sufficient answer to this suggestion that the form in which the provisions of a will are drafted is no part of its execution, and that the Legislature has not attempted to prescribe the form in which the testator shall express his testamentary purpose, or in which the will shall be drafted, but only the form in which it is to be "ex- ecuted and attested." See Hcady's Will, 15 Abb. Prac, N. S- (N. Y.)- Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 125 211 ; Matter of Collins, 5 Redf. Sur. (N. Y.) 20. In Estate of Blake, 136 Cal. 306, 68 Pac. 837, 89 Am. St. Rep. 135, the testator left a blank space of several lines between the items in which he disposed of his property and the items appointing an executor and revoking his former will. These last items were, however, testamentary pro- visions (Sisters of Charity v. Kelly, 67 N. Y. 415) ; and, as they constituted a part of his will, the end thereof was not reached until they had been written upon the paper, and, as his name was sub- scribed to the testamentary clause, which immediately followed these items, it was held that it was subscribed at the end of the will. A question similar to the one involved herein was presented in So- ward v. Soward, 1 Duv. 186. The statute of Kentucky required the witnesses, as well as the testator, to "subscribe" the will with their names, which the courts of that state construed to mean that they should write their names at the close of the will. In the will then before the court the witnesses wrote their names, as did the testator in the present case, on the outside or fourth page of the sheet after it had been folded, and across it as so folded. The court held that this was not a compliance with the statute, saying: "So far from sub- scribing their names to the will, it may be said with much more pro- priety and accuracy of speech that they merely indorsed the paper enveloping and inclosing the will, without any accompanying writing or memorandum to indicate the purpose of the indorsement, or show- ing any connection whatever between the indorsement and the will." In Roy v. Roy's Ex'r, 16 Grat. (Va.) 418, 84 Am. Dec. 696, the sheet of paper -upon which the will was written was folded in the form of a letter, and the words, "David M. Roy's Will," were indorsed upon the back in the handwriting of the deceased at about the middle of the third page when the paper was unfolded. His name was not signed at the end of the writing. The court held that it was not en- titled to probate, saying: "It is an unusual mode of signing or au- thenticating a paper as a concluded act by indorsing the name of the person executing it on the back. Such indorsement is usually made as a label or mark to distinguish it from other papers, and probably it never occurred to the deceased that it was to have any other func- tion in this case." The same rule was followed in Warwick v. War- wick, 86 Va. 596, 10 S. E. 843, 6 L. R. A. 775; Patterson v. Ran- som, 55 Ind. 402. Whether the deceased intended to execute his will in conformity with the requirements of the statute cannot be shown by parol or ex- trinsic evidence. Parol evidence cannot be admitted to show that the testator intended the space signed by him to be the end of the will, if, upon an inspection of the instrument, it appears that it is not in fact at the end. Evidence will not be received for the purpose of showing that he intended to comply with the requirements of the statute if it appears upon the face of the instrument that he had not in fact so complied. It must appear upon the face of the will itself that its 126 LAST WILLS AND TESTAMENTS. (Part 1 physical execution is in accordance with these requirements. Matter of Hewitt's Will, 91 N. Y. 261; Warwick v. Warwick, 86 Va. 596, 10 S. E. 843, 6 L. R. A. 775 ; Patterson v. Ransom, 55 Ind. 402. Under these considerations, it must be held that the testator did not comply with the requirements of the statute in the execution of his will, and the judgment of the superior court is therefore affirmed.'* In re SWIRE'S ESTATE. Appeal of McGINLEY. (Supreme Court of Pennsylvania, 1909. 225 Pa. 188, 73 All. 1110.) From a decree refusing an issue devisavit vel non in estate of Hetty W. Swire, deceased, Samuel T. McGinley appeals. The case turned upon whether the testatrix had signed the codicil to her will at the end thereof. The codicil was as follows: ^ >■■. ? i'C'^ Second Codicil to Will. > c Si „, Wo ,, aj-S 3 K ^3 £ !« Q "I, Hetty Wharton Swire, do hereby make and pub- « ^ -cJ lisb this Second Codicil to my last will and testament 2 «i'~'-M S-^S as follows : H ^ ^-2 S ^1 "1- I Siv^ ^^^ bequeath unto Lily McGinley my seal 'H "-^ cc '^ p skin coat. i >-'6 S ^V^-^ "2. I sive and bequeath unto Edna Pennock my black 5 a-^ 0) "K «'S and white check siVk dress. n -^ £ S S "3. I give and bequeath unto Mrs. William McGinley a ^.Sm o^oo^' (Fortieth Street) my cut glass ware. *S 2^0, ^c-S'-^i "4. I give and bequeath unto Lizzie Gibbs my cloth Q +-' t»j5 S >i t»> coat. ^^•^4) cSflgS "5. I give and bequeath unto James P. Cairns the '•S^.S2 xJocM^ large pictures of my husband, David Owen Swire, and ?SS^S i"£^"=- myself. 'i.HH >^ ?HH t- OM "In Witness Whereof I have hereunto set my hand ^ a . § .-^ "c-^ a »"*^ ^^^' ^'^^^ Twentieth day of April, A. D. One thou- ci oSc-^^^.S ^ ort .lenner, in Newton v. Clarke, 2 Curt. 320 (1S39). But the remark of Goroll Barnes, J., during the argument of Brown V. Skirrow. [19021 P. 3, 5, should be noted, namely: "You cannot be a witness to an act that you are unconscious of; otherwise, the thing might be done In a ballroom 100 feet long and with a number of people in the intervening space." Where the subscription takes place out of the room, and out of the presence of the testator, a subso corporated and validated by an unattested holographic codicil. Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 219 funeral and testamentary expenses as soon as conveniently may be after my decease by my executor hereinafter named, and subject thereto I give, devise, and bequeath all my real and personal estate whatsoever and wheresoever unto Frederick Blasson Carritt absolute- ly. And I appoint the said Frederick Blasson Carritt sole executor of this my will." The testator died in April, 1882, at Ghent, leaving personal property only. Immediately after his death probate was granted to Mr, Car- ritt. Thereupon the plaintiff, John F. Boyes, one of the brothers and next of kin of the testator, instituted proceedings in the Probate Di- vision of the High Court to recall probate. Mr. Carritt, who was the defendant in that action, was the solicitor and a private friend of the testator, and had himself prepared the will, and in answer to inter- rogatories administered to him in the probate action, Mr. Carritt stated as follows : That the testator communicated his intentions to him at the time when he made his will (which was made in London), and that such intentions were that the defendant should take the property as trustee upon trust to deal with it according to further directions, which the testator was to give by letter after his arrival on the Continent, whither he was then going within a day or two; and that he (Mr. Carritt) accepted the trust. That the deceased did go to the Continent within a day or two, but never gave any further directions in his life- time. Upon receiving this answer the validity of the will was admit- ted, and the action to recall probate was discontinued. This action was shortly afterwards brought by the next of kin of the testator against Mr, Carritt in order to obtain a declaration that they were beneficially entitled to his personal estate. In his defense, Mr. Carritt said that in giving the instructions the testator expressed to him verbally his desire to provide for a certain lady and child, whose names he did not wish to appear in his will, and he therefore desired to leave the whole of his property to the de- fendant as trustee to act with respect thereto according to any further written directions which might be given to him. In his oral evidence in this action the defendant confirmed these statements as accurately representing what he believed at the time, and said : "I gathered that I was to dispose of the estate as Mr. Boyes would direct me — the word 'trustee' was never used — the understand- ing was that he was to write to me, and I was to comply with his di- rections." No such directions were ever in fact given by the testator to Mr, Carritt in his lifetime, but after his death there were found among his papers two letters, one dated the 10th of February, 1880 (which was proved to be a mistake for 1881), written at Antwerp, and which was in these words : "F. B. Carritt, Esq. : I wish you to have five and twenty pounds of any property of which I may die possessed for the purchase of any 220 LAST WILLS AND TESTAMENTS. (Part 1 trinket in memoriam, everything- else I give to Nell Brown, formerly Sears, and I appoint you sole trustee to act at your discretion. "G. E. Boyes." The other letter was in these terms : "4th June, 1881. "F. B. Carritt, Esq. — Dear Sir: In case of my death I wish Nell Brown to have all except twenty-five pounds in my memory. "G. E. Boyes." Neither of these letters was executed as a testamentary instrument. Mrs. Brown was examined in this action, and she stated that the testator told her that he had written two letters to Mr. Carritt, one in case the other was lost. He directed her in case of his death to send immediately for Mr. Carritt. She did so, and having found these two letters among his papers, she placed them in Mr. Carritt's hands shortly after the testator's death. Kay, J., after stating the facts of the case, continued: The result of this is that Mr. Carritt admits that he is a trustee of all the property given to him by the will. He desires to carry out the wishes of the testator as expressed. in the two letters, but of course he can only do so if they constitute a binding trust as against the next of kin. If it had been expressed on the face of the will that the defendant was a trustee, but the trusts were not thereby declared, it is quite clear that no trust afterwards declared by a paper not executed as a will could be binding. Johnson v. Ball, 5 De G. & Sm. 85 ; Briggs V. Penny, 3 Mac. & G. 546 ; Singleton v. Tomlinson, 3 App. Cas. 404. In such a case the legatee would be trustee for the next of kin. There is another well-known class of cases where no trust appears on the face of the will, but the testator has been induced to make the will, or, having made it, has been induced not to revoke it by a promise on the part of the devisee or legatee to deal with the property, or some part of it in a specified manner. In these cases the court has com- pelled discovery and performance of the promise, treating it as a trust binding the conscience of the donee, on the ground that otherwise a fraud would be committed, because it is to be presumed that if it had not been for such promise the testator would not have made or would have revoked the gift. The principle of these decisions is precisely the same as in the case of an heir who has induced a testator not to make a will devising the estate away from him by a promise that if the estate were allowed to descend he would make a certain provision out of it for a named person; Stickland v. Aldridge, 9 Ves. 516; Wall- grave v. Tebbs, 3 K. & J. 313 ; McCormick v. Grogan, Law Rep. 4 H, L. 82. But no case has ever yet decided that a testator can by im- posing a trust upon his devisee or legatee, the objects of which he does not communicate to him, enable himself to evade the Statute of Wills by declaring those objects in an unattested paper found after his death. Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 22l The essence of all those decisions is that the devisee or legatee ac- cepts a particular trust which thereupon becomes binding upon him, and which it would be a fraud in him not to carry into effect. If the trust was not declared when the will was made, it is essential in order to make it binding, that it should be communicated to the devisee or legatee in the testator's lifetime and that he should accept that particular trust. It may possibly be that he would be bound if the trust had been put in writing and placed in his hands in a sealed envelope, and he had engaged that he would hold the property given to him by the will upon the trust so declared although he did not know the actual terms of the trust: McCormick v. Grogan. But the reason is that it must be assumed if he had not so accepted the will would be revoked. Suppose the case of an engagement to hold the property not upon the terms of any paper communicated to the legatee or put into his hands, but of any paper that might be found after the testator's death. The evidence in this case does not amount to that, but if it did the rule of law would intervene, which prevents a testator from declaring trusts in such a manner by a paper which was not executed as a will or codi- cil. The legatee might be a trustee, but the trust declared by such an unattested paper would not be good. For this purpose there is no difference whether the devisee or legatee is declared to be a trustee on the face of the will, or by an engagement with the testator not appearing on the will. The devisee or legatee cannot by accepting an indefinite trust enable the testator to make an unattested codicil. I cannot help regretting that the testator's intention of bounty should fail by reason of an informality of this kind, but in my opinion it would be a serious innovation upon the law relating to testamentary instruments if this were to be established as a trust in her favour. The defendant, however, having admitted that he is only a trustee, I must hold, on the authority of Muckleston v. Brown, 6 Ves. 52, Briggs V. Penny, 3 Mac. & G. 546, and Johnson v. Ball, 5 De G. & Sm. 85, that he is a trustee of this property for the next of kin of the tes- tator. I can only hope they will consider the claim which this lady has upon their generosity.^'' 87 No distinction on principle exists whether the devise is on its face to the devisee absolutely, or "in trust" but the trust is not expressed. "The result of the cases appears to me to be that a testator cannot by his will reserve to himself the right of disposing subsequently of prop- erty by an instrument not executed as required by the statute, or by parol ; but that when, at the time of making his will, he has formed the intention that a legacy thereby given shall be disposed of by the legatee in a particu- lar manner, not thereby disclosed, but communicated to the legatee and as- sented to by him, at or before the making of the will, or probably, according to }.Ioss V. Cooper. 1 .J. «& H. 253. subsequently to the making of it, the court will allow such trust to be proved by the admission of the legatee, or other parol evidence, and will, if it be legal, give effect to it The same prin- 222 LAST WILLS AND TESTAMENTS. (Part 1 In re MOORE. (Prerogative Court of New Jersey, 1900. 61 N. J. Eq. 616, 47 Atl. 731.) Reed, Vice Ordinary. James Moore died August 14, 1897, leaving a will, which was probated August 27, 1897, and letters testamentary issued to James H. Moore, his son and surviving executor. The will contained the following clause : "In making division of my property aforesaid as above directed I hereby further direct that certain amounts of money that I have al- ready advanced or may hereafter advance to certain of my children, shall in each case be charged against the portion of each of said chil- dren, and be inventoried as part of the estate of which I may die seized, ciple which led this court, whether wisely or not, to hold that the Statute of Frauds and the Statute of Wills were not to be used as instruments of fraud, appears to me to apply to cases where the will shows that some trust was intended, as well as to those where this does not appear upon it. The testator, at least when his pui'pose is communicated to and accepted by the proposed legatee, makes the disposition to him on the faith of his car- rying out his promise, and it would be a fraud in him to refuse to perform that promise. No doubt the fraud would be of a different kind if he could by means of it retain the benefit of the legacy for himself; but it appears that it would also be a fraud, though the result would be to defeat the ex- pressed intention for the benefit of the heir, next of kin, or residuary dev-. isees." Vice Chancellor Chatterton, in Riordan v. Banon, Irish Rep. 10 Eq. 469, 477, 478 (1876). See, also, Curdy v. Berton, 79 Cal. 420, 21 Pac. 858, 5 L. R. A. 189, 12 Am. St. Rep. 157 (1889) ; Cagney v. O'Brien, 83 111. 72 (1876). But see Olliffe v. Wells, 130 Mass. 221 (1881) ; Sims v. Sims, 94 Va. 580, 27 S. E. 436, 04 ^Vm. St. Rep. 772 (1897) ; Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382, 31 Am. St. Rep. 29 (1892), holding that where the devise is "in trust," but the trust is not expressed in the will, the devisee, though the testator communicates the trust to him, holds for the heirs or next of kin, and not for the intended cestui. In Bryan v. Bigelow, 77 Conn. 604, 60 Atl. 266, 107 Am. St. Rep. 64 (190.5), the court, having refused in Bryan's Appeal, supra, p. 211, to regard thfe letter as incorporated in the will, refused to treat it as creating a trust. The court said: "To treat this letter as an operative declaration of trust would be, in effect, to hold that a testamentary disposition of property could be made by an instrument not executed in conformity with the statute regulating such transfers of property." 77 Conn. 612, 61.3, 60 Atl. 269, 107 Am. St. Rep. 64 (1904). That neither Mrs. Bennett nor the other residuary legatees were ti'ustees ex maleficio was also held, because "neither the evi- dence excluded nor the facts proved show any agreement, express or im- plied, by Mrs. Bennett, or the other residuary legatees, to accept the money npon the trust described iu Exhibit 1, or that during the lifetime of the tes- tator they even knew of any of the provisions of the twelfth clause of the will." 77 Conn. 016, 60 Atl. 270, 107 Am. St. Rep. 64 (1904). "In re Stead [1900] 1 Ch. 237, is an interesting case: A gift to A. and B. jointly. A. is told, but B. is not told, of the trust. A. is bound as to an undivided moiety. Is B. bound? Yes, if the trust was told to A. before the making of the will ; no, if it was only told to A. afterwards. This dis- tinction rests on no sound reason, as, indeed, Farwell, J., points out. You must accept it as the result of two lines of cases — the one set asserting a rule that no person can claim an interest under a fraud committed by an- other, whilst the other set was decided in the opposite way, lest otherwise one beneficiaiT might be enabled to deprive the rest of their benefits by set- ting up some secret trust communicated to himself alone." Maitland's Equity and the Forms of Action at Common Law, 61, 62. Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 223 at the full amount of the charge in each instance, but without interest thereon. All such charges are contained in sealed envelopes to be found with this my last will. All other evidence of indebtedness against any of my said children, which I may have at my death, I hereby give and bequeath to such debtors, respectively, to each child the evidence of his or her indebtedness, and discharge each of said debtors from all his or her obligations in respect to such and all in- debtedness for any such advances or debts, except such as I have here- tofore specified as being left with this my will. "These amounts I cannot at present certainly indicate, as they are liable to be changed before my death by payments to be made or by further advances by me." After the testator's death the executors found the will in a sealed envelope, and with it three other papers, signed by the testator, one of which was in the following form : "Elizabeth, N. J., February 22, 1893. "The sum of $14,000 is to be charged to account of my son Thomas (without interest) for money heretofore advanced by me to him in accordance with the provisions of my will contained in the third sec- tion thereof. James Moore." The point taken by Thomas Moore, the exceptant, is that "this paper is an attempt to add to, change or complete the provisions of a will by a subsequent paper not executed with the formalities required by the statute of wills." There is no doubt that a testator can provide that the amount to be received by a legatee shall be dependent upon a condition of fact to be ascertained aliunde. Some of these conditions are noted by Chief Justice Denio, in his opinion in the leading case of Langdon v. Astor's Executors, 16 N. Y. 9, 26. This is so, even though the condition may be brought about by the testator himself. Stubbs v. Sargon, 3 Myl. & C. 507. The testator could have provided that all advances made to, or debts owing by, a legatee, whether made or incurred before or after the exe- cution of the will, should be deducted from his portion. Such amount may be ascertained by parol evidence, and may be varied by advance- ments made subsequent to the execution of the will. 1 Underh. Wills. 447. A frequent testamentary provision is that such debts or advance- ments as are charged on testator's books against legatees shall be de- ducted, and these provisions are valid. Robert v. Corning, 89 N. Y. 227. When a testator provides that such advancements as are indicated by entries, to be subsequently made by him, shall be deducted from the share or legacy, a mere entry, it seems, unless there have been ad- vancements in fact, will not suffice. Hoak v. Hoak, 5 Watts (Pa.) 80. Parol evidence is admissible to support the book entries. Estate of Mussleman, 5 Watts (Pa.) 9: Oilman v. Oilman, 63 N. Y. 41. 224 LAST WILLS AND TESTAMENTS. (Part 1 In the present case I think it appears that, before the execution of the will, testator had paid to, and for the benefit of, the exceptant moneys, which were never repaid, to an amount in excess of $14,000. It is to this sum that the testator alludes when he speaks of the amounts of money "that I have already advanced." The checks produced, taken in connection with the explanation of the exceptant himself, seem to establish this fact.*^ It is true, the exceptant says, after admitting advances to the amount of $15,000, that he is equitably entitled to a deduction, be- cause his father promised to make up to him certain commissions for the sale of the Staten Island Railroad, if his son would abandon his suit for the same. He does not say that his father promised to make it up to him in any particular manner. It does not appear whether it was to be made up to him by relieving the son from the amount which he (the father) had loaned to the firm of Mason, Peas &Moore and the firm of Peas & Moore, for which sum his son, as a member of the bankrupt firm, was responsible, or whether he was to make it up to him in some other unexplained manner. So I am of the opinion that the testator had the right to regard the $15,000 in money, which the exceptant admittedly received, as money advanced. Now, the testator having the right to provide that such advances should be charged to the portion of exceptant, the question remains, did he defeat his intention to charge some of the advances by provid- ing that the amount which he intended to charge should be evidenced by a paper made subsequently to the execution of his will ? In my judgment the paper which contained the charge is not to be regarded as testamentary in its character. The effect of the contents of the paper was restrictive. Suppose the testator had said, I charge all the debts owing to me, which I have not discharged or forgiven at «» "Proponent offered In evidence certain account books kept by the de- ceased, .showing adviiucements made to iiis children, the contestants, from time to time. The entries shoeing these advancements were proven to have been in the handwriting of the deceased, and the booljs were fully Identified. Objections to these entries were sustained. While it is. no doul)t, true that these books of account were inadmissible, under our statutes relating to the admission of books of account, yet the entries therein made were written dcflarations of the deceased with reference to the disposition of Bome of his property before executing the will, and as such they were ad- missible. This Is especially true in this case, for the other evidence tends very strongly to show that the reason why he did not remember his chil- dren was due to the fact that he had already made provisions for them. Bever v. Spangler, 93 Iowa, 57t), 61 N. W. 1072, and cases cited. These written declarations of the deceased to the effect that he had made certain advancements to his children should have been admitted In evidence for the pnrixise of showing the state of his mind at the time he executed the will. True, they may not prove that the advancements were In fact made, but the evidence was quite material in considering the condition of the de- ceased's mind, and the feelings which pronijitod him, at tlie time he made his will." Deemer, J., In In re Perkins' Estate, 109 Iowa, 218, 80 N. W. 336 (1809). Ch. 6) EXECUTION OF WRITTEN WILLS AND TESTAMENTS. 225 the time of my death, and the receipt, release or paper evidencing such discharge will be found with my will. This would seem analogous to a provision containing a gift of certain property, unless it should be conveyed before the testator's death. The fact that he mentioned where such deed or conveyance could be found, if made, would be in no degree material. It being proved that more than $14,000 had been advanced to this legatee, the paper which expressly charged him with only $14,000 was impliedly a gift of the remainder of the ad- vances. I think that the decree of the orphans' court should be affirmed.®^ «9 See In re Harris' Estate, 82 Vt. 199, 72 Atl. 912 (1909) ; In re Bresler's Estate, 155 Mich. 567, 119 N, W. 1104 (1909) ; Holmes v. Coates, 159 Mass. 226, 34 N. E. 190 (1893). In Stubbs V. Sargon, 3 Myl. & C. 507 (1838), a trust to dispose of certain property and divide the proceeds amongst those of testatrix's partners who should be in partnership with her at the time of her death or to whom she might have disposed of her business was upheld. In so deciding Lord Chancellor Cottenhara said : "In the present case, the disposition is complete. The devisee, indeed, is to be ascertained by a description contained in the will ; hut such is the case with many unquestionable devises. A devise to a second or third son, perhaps unborn at the time, many contingent devises, all shifting clauses, are instances of devises to devisees who are to be ascertained by future events and contingencies : but such persons may be ascertained, not only by future natural events and contingencies, but by acts of third persons. Suppose a father, having two sons, and having a relation who has a power of ap- pointing an estate to some one of them, makes his will, and gives his own es- tate to such one of his sons as shall not he the appointee of the other es- tate, or with a shifting clause. Here the act of the donee of the power is to decide who shall take the father's estate ; but there is nothing in the Statute of Frauds to prevent this, because the devise by the will is com- plete; that is, the disposition is complete. The intention is fully declared, though the object to take remains uncertain. If the subsequent act remov- ing that uncertainty, and fixing the identity of the devisee, were to be con- sidered as testamentary, in the case above supposed, the donee of the power would be making or completing the will of the father; that is, one man would be making another man's will. The act, therefore. Is not testa- mentary; and, if not, then why should not the act be the act of the testa- tor himself? It is objected to upon the ground of its being testamentary ; but, if it be not testamentary when done by a stranger, it cannot be so when done by the testator. If it were otherwise, a testator could not devisee lands, or give legacies charged upon land, to such person as might be his wife at his death, to such children as he might have, or to such servant as he might have in his service at his death. The cases of charging legacies generally by a will, and naming legatees by an unattested instrument, carry this principle to the greatest length, because the subsequent act ascertaining the ]»arty to take is also testamentary ; but that rule is recognized by Lord Rosslyn in Habergham v. Vincent, and Sir W. Grant, in Rose v. Cunynghame, 12 Ves. 29 (see page 38), explains it upon the principle I have adverted to. He says the will creates the charge; it is only necessary to show that there is a leg- acy ; for the moment that character is shown to belong to the demand, you show that it is already charged upon the land ; and his decision in that case marked the distinction, for the testator did not charge his legacies by his will, and name the legatee by a codicil ; but he devised his estate to pay such legacies as he should bequeath to be paid out of his estate ; and aft- erwards, by an unattested codicil, attempted to charge a legacy upon the estate ; which Sir W. Grant held he could not do. because, not only is the legatee to be found in the codicil, but the will to make the charge — that d*-* Cost. Wills— 15 226 LAST WILLS AND TESTAMENTS. (Part 1 HARTWELL et al. v. MARTIN et al. (Court of Chancery of New Jersey, 1906. 71 N. J. Eq. 157, 63 Atl. 754.) Bergen, V. CJ° The complainants, as executors of the last will of Alfred W. Martin, seek directions to aid them in the administration of the trusts in their hands under the will of their testator. Of the numerous questions presented in the bill of complaint, only four were pressed on the argument. The first arises under the second item of the will, which reads as follows : "I wish my executors to make a settlement with my credit- ors of what debts I have outstanding at the time I made an assign- ment, I think in 1872, although not under obligation to pay these claims yet I wish them paid. My executors must make a settlement of the principal without interest, and I also wish those who have received their dividend to be paid less the dividend they received as well as those creditors who did not hand in their claims. A list of all debts that I wish paid will be found enclosed with this will." The direction is to pay all his debts outstanding in 1872, without naming the persons to whom payment is to be made, and to ascertain who are embraced in that class he refers his representatives to "a list of all debts I wish paid," to be found inclosed with his will. The will was executed in duplicate. One of them he gave to his executor to- gether with a list containing not only the names of some of his credit- ors in 1872, who had presented their claims to his assignee, and of those who had not, but also a list of creditors to whom he was liable for subsequent debts. The names of the creditors and the amounts due are each set out with particularity. The other will the testator retained, and it was found in a box where he kept his valuable papers and with it a partial list of his creditors at the date of the assignment, and the amounts due each. This list does not correspond, as to amounts, with the list held by his executor, for in some cases they are reduced, as appears from an inspection of the paper, to the extent of being to be found In the will. I think, therefore, the objection upon the ground of the Statute of Frauds cannot be supported." Id. 511, 512. In Dennis v. Holsapple, 148 Ind. 297, 47 N. E. 631, 46 L. R. A. 168, 62 Am. St. Rep. 526 (1897), the will provided that "whoever should take care of me and maintain, nurse, clothe and furnish me with proper medical treatment at my request, during the time of my life yet when I shall i^eed the same, shall have all of my property of every name, kind and description left at my death." In awarding the property to the person who met the requirement, the court said (148 Ind. 297, at page 304. 47 N. E. 631, at page 633 [62 Am. St. Rep. 526]): "This person, it is true, depended upon the future volition of the testatrix in being chosen to perform the exacted services and upon the consent of the latter in accepting the request and in discharging the obliga- tion imposed by the will ; but the subsequent volition exercised by Mrs. ShuU [the testati'ix] in this respect cannot be deemed or considered in a legal sense as testamentary in its nature or character." 7opart only of the opinion is given. Ch. 6) EXECUTION OP WRITTEN WILLS AND TESTAMENTS. 227 payments made by the testator after the execution of his will. It was shown on the trial that neither list contained the names of all the creditors mentioned in the schedule attached to the deed of assignment, nor of all the creditors who had proved and filed their claims. Under this state of facts, such of the creditors as were omitted by the testator from the list he made out claim that, under the terms of the will, they are to be considered in the class to be paid, and that the general direction to pay is not to be modified by the list left by the testator, according to which he expressed his intention that payments should be made. He was under no legal obligation to pay these debts, for they were all either extinguished by the assignment proceedings, or subject to the statute of limitations, and I am of opinion that if the bequest is good it must be limited to the debts contained in the list left by the testator with the will. It is insisted, however, by the other legatees that the whole bequest is void, because the persons who were to take are not named individu- ally, but as a class, and in order to ascertain who constitute the class, reference must be made to a paper not executed according to the law of wills. It is clear that this case differs from one where legacies are given subject to deductions for advancements to be ascertained from charges in a book of account, or other evidence thereof to which the testator may refer, for in such case the testamentary disposition is complete and needs no aid from other sources although subject to debts or advancements, for they may be proved without reference to any memoranda. The gift is complete, its payment during the life of the testator in whole or in part may be shown in exoneration of it, and therefore, in determining the question under consideration, we are afforded no assistance by Moore's Case, 61 N. J. Eq. 616, 47 Atl. 731, for there the disposition was testamentary, subject to advancements which the testator restricted to the amount he considered he had ad- vanced. My conclusion on this branch of the case is that the bequest to the creditors of the testator now under consideration is void, because it is an attempt to bequeath property to a class of persons who can only be ascertained by reference to a nontestamentary paper which the tes- tator might change from day to day, and thus enlarge or diminish his testamentary gifts as often as he chose without observing the rules of law relating to the testamentary disposition of property. The ef- fect, if it should be permitted, would be to allow a testator to declare the particular legatees to whom his estate should go without the formality required by law in such cases. * * * 228 LAST WILLS AND TESTAMENTS. (Part 1 CHAPTER VII THE REVOCATION OF WILLS SECTION 1.— STATUTES THE STATUTE OF FRAUDS. VI. And, moreover, no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June 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; (2) but all devises and bequests of lands and tenements shall remain and continue in force, until the same be burned, cancelled, torn or obliter- ated by the testator, or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four wit- nesses declaring the same; any former law or usage to the contrary notwithstanding. XXII. And be it further enacted that no will in writing concerning any goods or chattels, or personal estate, 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 testator, and allowed by him; and proved to be so done by three witnesses at the least. 29 Car. II, c. 3, §§ VI, XXH (1677). THE WILLS ACT. XVIII. And be it further enacted, that 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 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 the per- 1 On the revocation of wills, see 28 Am. St Rep. 344, note; 7 U R. A. 561, note. Ch. 7) THE REVOCATION OF WILLS. 229 son entitled as his or her next of kin, under the Statute of Distribu- tion). XIX. And be it further enacted, that no will shall be revoked b^> any presumption of an intention on the ground of an alteration in cir- cumstances. 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 the inten- tion 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 altera- tion 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 such 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. XXIII. And be it further enacted, that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked 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 and personal estate comprised in it as if it had been executed immediately before the death of the testator, un- less a contrary intention shall appear by the will. 7 Wm. IV & 1 Vict. c. 26, §§ XVIII-XXIV (1837). SECTION 2.— REVOCATION BY SUBSEQUENT INSTRU^ MENT BROOK V. WARDE. (Nisi Prius. 1572. 3 Dyer, 310b.) One Kyete, of Kent, by his will in writing, devised his land of gavelkind to one Harrison in fee; and five days before his death be revoked his will in this point, by parol only, in the presence of three witnesses, requiring their testimony of his present revocation; and 230 LAST WILLS AND TESTAMENTS. (Part 1 said to them further, that he would alter this in his written will when he came to town, &c., and before his coming thither he was murdered by the said Harrison. And Harrison caused the will in writing, as it was at first, to be proved; and by color thereof entered into the devise, and then was attainted of murder, and hanged: and his son entered by the law of gavelkind, s. The father to the bough, the son to the plough. This matter came out in evidence to a jury of Kent this term, in ejectione firmse between Brooke and Warde; and tWs manner of revocation by parol as above was affirmed for sufficient revocation at bar and bench, although it was not in writing, nor the first will in that point cancelled or defaced ; vide bene.'' LYON V. DADA. (Supreme Court of Michigan, 1901. 127 Mich, 395, 86 N. W. 946.) Montgomery, C. J. This is an appeal from an order of the circuit court refusing probate to the will of Laura E. Dada, deceased. A will of later date was offered for probate, and the decision denying probate to this will was affirmed by this court in Lyon v. Dada, 111 Mich. 340, 69 N. W. 654. That later purported will contained a clause revoking all former wills. The question presented by this appeal is whether denial of probate to this will is res ad judicata upon the question of whether it revokes the former will. This question was before the court of Massachusetts in the early case of Laughton v. Atkins, 1 Pick. 535, where this subject is treated in an able and exhaustive opinion by Parker, C. J. The prin- ciples to be extracted from that case are that all persons interested in an estate are parties to the probate proceedings, and bound by them, and that the disallowance of a will in toto on the ground of undue in- fluence amounts to a determination that the revocatory clause is in- 2 "In England, before the statute of frauds, a written will might be re- voked by a nuncupative testament, and it was in consequence of an atrocious conspiracy to set up a nuncupative will over a prior written one that the glaring defect in the law came to be perceived, and that the statute was passed. The history of the transaction is given in a note to Matthews v. Warner, 4 Ves. 196. Mr. Cole, three years before his death, had made a written will giving £3,000 to charitable uses. Mrs. Cole set up a nuncupa- tive will, by which the whole estate was given to her. Upon the trial it ap- peared that most of the witnesses to this will were perjured, and that Mrs. Cole was guilty of subornation. And upon this occasion Lord Nottingham said : 'I hope to see, one day, a law that no written will should be revoked, but by writing.' The next year, the statute of frauds was passed. * * * There are very good reasons why an individual, he who has not yet exe- cuted a written will, should be permitted, under peculiar circumstances to make a verbal one. But when he has already executed a written will, with all the solemnities of the law, there are equally strong reasous wliy the rev- ocation of it should be attended with the same solemnities." Grimke, J., in Devisees of David McCune v. House, 8 Ohio, 144, 145, 31 Am. Deo. 438 (1837). Ch. 7) THE REVOCATION OF WILLS. 231 effectual. This case was cited and followed in Rudy v. Ulrich, 69 Pa. 177, 8 Am. Rep. 238, and is cited and approved in Wallis v. Wal- lis, 114 Mass. 512. In the present case it was determined in the former issue that the entire will was void on the ground of undue influence. There was no attempt to probate any part of the will, nor was the determination confined to any single clause of the will. We think the case is within the principle of those cited. See, also, Dudley v. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959. The judgment of the circuit court will be reversed, and an order entered ajdmitting the will to probate. The appellant will be entitled to recover his costs, to be paid out of the estate. Hooker, J., did not sit. The other justices concurred.' s The same doctrine holds where the later will is rejected for lack of testamentary capacity. In the Matter of the Probate of the Will of David Goldsticker, 192 N. Y. 35, 84 N. E. 581 (1908). See cases cited in 18 L. R. A. (N. S.) 99, note. But In New York the decree rejecting probate is not eoDchisive as regards realty, because a decree admitting a will to probate is in that state conclusive only as to personalty. Corley v. McElmeel, 149 N. Y. 228, 43 N. E. 628 (1896). "A will legally made stands until legally revoked. It cannot be revoked by any act of destruction, unless the act is done with an intention to revoke ; and a person, not having testamentary capacity, cannot have an intention to revoke a will. He is legally incapable of it. In such case the burning of the will can have no effect whatever, provided the contents can be clearly and certainly proved by other evidence. The written instrument may be burnt, the surest and best evidence of the will may be destroyed, but the will itself, if a draft of it can be proved, outlives the act of destruction, and the testamentary dispositions stand. * * * j am of the opinion that the same result follows where the act of destruction is produced by undue in- fluence, as where incapacity exists. There can hardly be a logical differ- ence, whether the act of destruction be accomplished by a testator who has no mind to exercise, or, having a mind of his own, is prevented from exer- cising it. Insanity takes away testamentary capacity, while undue influence does not allow it to act. There must be animus revocandi. In the one case providence prevents it; in the other case it is prevented by the wrongful act of man. In each case the hand of the testator acts ; but the mind does not go with the act." Peters, J., in Rich v. Gilkey, 73 Me. 595, 597, fiOl (1881). On the probate of a will which was revoked as a result of undue influ- ence, see Batton v. Watson. 13 Ga. 63. .58 Am. Dec. 504 (1853); Voorhees v. Voorhees. 39 N. Y. 4&3. 100 Am. Dec. 458 (1868). See, also, Mclntire v. Worth- ington, 68 3.rd. 203, 12 Atl. 2.51 (1887) ; Laughton v. Atkins, 1 Pick. (Mass.) 535, 546. 547 (1823). In Rudy v. Ulrich, 69 Pa. 177, 8 Am. Rep. 238 (1871), where in prior liti- gation a later will had been found invalid as an entirety because of imdue influence, and then in the case at bar the jury found that there was no undue influence as to the revocation, the court held that it was reversible error to submit to the jury the question of whether the later will revoked the earlier, as a collateral attack on the earlier decree could not be allowed. Besides, said the court, "it cannot be known with any degree of assurance, suflicient to justify a legal judgment, that where there is a clause of revo- cation in a will making a certain disposition of property, that the testator really intended to revoke a prior will making a different disposition, except for the purix>se of substituting in place thereof that contained in the second will." 69 Pa. 183, 8 Am. Rep. 238. On the effect of acquiescence in the destruction of a will under a statute providing for the establishment of destroyed wills, see Parsons v. Balson, 129 Wis. 311, 109 N. W. 136 (1906). At pages 318, 319, of 129 Wis., and page 232 LAST WILLS AND TESTAMENTS. (Part 1 DENNY V. BARTON. (Ecclesiastical Court, 1818. 2 Phillimore, 575.) William Harris of New Alresford, in Hampshire, died in May, 1817, possessed .of about i34,000 personal property, leaving a will dated 13th of March, 1812, and a codicil of the 26th of October, 1815. Pro- bate of both these instruments was granted in common form in July, 18 17, to Charles Barton and Jonathan Rashleigh, two of the executors named in them. A second codicil was now propounded in an allegation by Louisa Denny, a natural daughter of the deceased. The codicil was in the shape of a letter dated in June, 1808, and addressed and endorsed as follows : "To Joseph Leacock, Esq., not to be opened until after the death of William Harris, Esq." Joseph Leacock was a nephew of the deceased, and the residuary legatee and one of the executors under the will which had been proved; but he was in the West Indies at the time of his uncle's death, and had died before he had arrived in England. In the will there was a clause revocatory of all former wills. The letter was as follows : "My dear Joe. — I find I am not long for this world; and shall, therefore, disclose to you a secret which is known to very few, though Mrs. Harris is acquainted with it. I have a natural daughter, by the name of Louisa Denny, who is now a teacher at a lady's boarding school, at Hampstead ; the name of the governess who keeps the school IS Scriven. I have bred up this girl with care and attention, and have given her a good education. I have not mentioned her in my will, because the world should not know of my indiscretion; but I desire you (to whom I have left all my property) to pay within six months after my decease, to this young lady, one thousand pounds sterling, or allow her an annuity of fifty pounds per annum, from the day of 138 of 109 N. W., Kerwln, J., says : "It is argued that section 3791, St. 1898, contains no limitation, and provides that, whenever any will of real estate or personal property shall be lost or destroyed by accident or design, the county court shall have power to take proof of the execution and validity of such will and establish the same. But the statute must have a reasonable const rurtion in furtherance of justice and the object of its enactment. The question in all cases of reproduction of destroyed wills under this statute is whether the circumstances of destruction and acquiescence amoimt to a rev- ocation. It would seem that the rule most consonant with the statute is that if knowledge of the destruction of the lost will be not brought home to the testator within' such time as would reasonably enable him to reproduce it, or If he was prevented from so doing, it might be probated upon proper proof of the facts ; but where reasonable time elapses after knowledge of the de- struction, coupled with opportunity to reproduce the destroyed will, a pre- sumption of revocation arises, and the destroyed will cannot be admitted to probate." See, also, Cutler v. Cutler, 130 N. C. 1, 40 S. E. 689, 57 L. R. A. 209, 89 Am. St. Hep. 854 (1902). Quajre as to the effect of such a statute where a will Is destroyed as a result of undue influence? But that, in the ab- sence of special statute a destruction cannot become by ratification a revoca- tion, see note to Giles v. Warren, iwst, p. 246. Qh. 7) THE REVOCATION OF WILLS. 233 my death. I further desire you will pay to her mother, whose name is Sarah Whitear, living in East Street, in the town of Alresford, with her mother as a mantua-maker, ah annuity of twenty-five pounds per annum, from the day of my decease, in quarterly payments. I have always found you to be a good lad; and I trust, as a man of honour, you will attend and follow the directions I have here given you, m the same manner as though contained in my will. My friend, Captam Sealy, who lives at No. 19, Guildford street, will give you further m- formation respecting Louisa. God bless you, my dear Joe. "I am your sincere friend and affectionate uncle, William Hams. "P. S.— I have a little money in the three per cent, consolidated funds which will enable you to discharge the above legacy and annuity. "June, 1808." Sir John Nicholl. There is no doubt in this case. The codicil is in the form of a letter ; but it is quite clear that the deceased in- tended it to be a confidential trust to his nephew not to be communi- cated till after his death. It was intended to operate independently of his will. I should not consider it irrevocable; but I think a will with a common revocatory clause would not revoke this paper. There have been a variety of instances in which papers of this sort have been ad- mitted to probate. It was found uncancelled and unrevoked ; and it has only been in consequence of the nephew's death that it has been necessary to bring it before the court. r am clearly of opinion that it can operate ; and that it was not in- tended to be revoked, notwithstanding the revocatory clause in the. will; and, therefore, I admit the allegation.* CADELL V. WILCOCKS. (High Court of Justice, Probate Division. [1898] P. 21.) Sir F. H. Jeune, President." The question in this case is, which of three wills made respectively on April 26, 1890, July 5, 1894, and September 5, 1895, by the testatrix, Mrs. Lucy Biddulph, should be admitted to probate. The father of the testatrix, Robert Bickerstaffe, left il6,000 among his four daughters in equal shares for life, with power of appointment 4 "Even if the second instrument contains a general revocatory clause, that is not conclusive, and the court will, notwithstanding, consider^ whether :s was the intention of the testator to revoke a bequest contained m a pre- vious will. Dennv v. Barton. 2 Phillim. 575. On the other hand though there be no express revocatory clause, the question Is whether the inten- tion of the testator, to be collected from the instrument, was that the dis- positions of the earlier will should remain in whole or m P%\^^^^f''-^;^ Sir J. Hannen. President, in Dempsey v. Lawson, 2 P. D. 98^ H^ U»<0. »ee aote 13 to Simpson v. Foson, post, p. 238. 3 The statement of facts is omitted. 234 LAST WILLS AND TESTAMENTS. (Part 1 to each of them by will amongst her children, and, in default of ap- pointment, to her children equally. At the time of the will of 1890, the testatrix had two daughters, Anne, then married, and Gertrude, then a widow, and three sons, Mid- dleton, Assheton, and Franc. By the will of 1890 the testatrix, after revoking all previous wills, gave her daughter Gertrude "the sum of i4,000 absolutely for her sole use and benefit," describing it as "being the sum left to me by the will of my father the late Robert Bicker- staffe." She then bequeathed £50 to her steward, Finton McDonald, and the residue of her property to her five children equally, and ap- pointed her sons, Middleton and Assheton, executors. It was not de- nied before me that this was a good execution by the testatrix of the limited power of appointment vested in her by the will of her father. Between the wills of 1890 and 189-1 the daughter Gertrude married Dr. Nevil Cadell, and I understand that the sons Middleton and Asshe- ton received a benefit under the will of an uncle, the testatrix's brother. By her will of 1894 the testatrix bequeathed to her daughter Ger- trude "the sum of £4,000 for her own absolute use and benefit, and to dispose of as she may think fit." She then gave £50 to her steward, Finton McDonald, and the residue of her property to her children Franc and Gertrude equally, and appointed Franc, Gertrude and Dr. Nevil Cadell executors. Between the wills of 1894 and 1895, Franc, the son of the testatrix, and also the steward died. A letter of the testatrix containing her in- structions for the will of 1895 was produced to me, but I do not think it material. By the will of 1895 the testatrix made a bequest to her daughter Gertrude in these terms: "All the property real freehold or personal wheresoever situate of which I may die seised or possessed for her own absolute use and benefit and to dispose of as she may think fit," and gave the same, in case of her daughter predeceasing her, to her daughter's husband. Dr. Nevil Cadell, and appointed her dausrhter and Dr. Cadell executrix and executor. Neither the will of 1894, nor the will of 1895, contained any words of revocation ; and it was not disputed before me that neither the terms of the will of 1894, nor those of the will of 1895, were sufficient to effect a valid execution of the limited power of appointment vested in the testatrix. I think that this case is governed by the familiar principle of law stated in Williams on Executors (9th Ed.) p. 138, and approved by Lord Penzance in Lemage v. Goodban, 1 P. & D. 57, that the mere fact of making a subsequent testamentary paper does not work a total revocation of the prior one, unless the latter expressly or in effect revoke the former, or the two be incapable of standing together, and if a subsequent testamentary paper, whether will or codicil, be par- tially inconsistent with one of earlier date, then such latter instru- ment will revoke the former as to those parts only where they are inconsistent. Qh. 7) THE REVOCATION OF WILLS. 235 In this case there was clearly no express revocation, in whole or in par^, of the will of 1890 by either the will of 1894 or the will of 1895. I assent to Mr. Inderwick's contention that, had there been a general clause of revocation in either the will of 1894 or that of 1895, it would have revoked the whole will of 1890, including the execution of the power contained in it. The opinion indeed of the Delegates m the case of Hughes v. Turner, 4 Hagg. Ecc. 30, at page 71, if cor- rectly reported, would appear to be to the effect that a clause of revo- cation per se does not revoke the portion of an earlier will which has executed a power; and in In the Goods of Merritt, 1 Sw. & Tr. 113, and in In the Goods of Joys, 4 Sw. & Tr. 214, Sir Cresswell Cresswell expressed a similar opinion. It might be considered doubtful whether the case of Sotheran v. Dening, 20 Ch. D. 99, in the Court of Appeal overruled those authorities, because weight was given to the consid- eration, which arose in that case, that by virtue of the 27th section of the Wills Act a general bequest operated on the subject-matter of the power of appointment, and so strengthened the evidence in favor of an intention to revoke its previous execution. But in In re Kmg- don, 32 Ch. D. 604, the question of revocation by a general revocatory clause arose simpliciter, there being no subsequent provision relating to the subject-matter of the power in question, and Kay, J., clearly considered that he was justified by the authority of Sotheran v. Den- ing [supra] in holding that a will executing a power was revoked in toto by general words of revocation in a subsequent will. The ef- fect of his decision is, I venture to think, that on this point of law common sense at last prevailed. I cannot understand why express words, revoking all previous wills, should be supposed to spare an ■ execution of a power contained in one or more of them from the fate inflicted on all the rest of their contents. But, in the present instance, there are no express words to revoke the will of 1890. Next, is there anything in the wills of 1894 or 1895 inconsistent with the execution of the power in the will of 1890, or, in other words, is there anything that by implication effects a revocation of that ex- ecution? It is not necessary to consider whether, if the power of ap- pointment in this case had been general and not, as it was, limited, the general bequests in the wills of 1894 and 1895 would have been not only, by virtue of the 27th section of the Wills Act, effectual to execute the power, but also sufficient to revoke a previous execution of it It is, I think, clear that these general words of bequest, which do not execute the limited power, as the 27th section of the Wills Act has no application, cannot revoke or affect its previous execu- tion. The wills of 1890 and 1895 can, therefore, stand together; and, subject to proof in common form, there should be probate of both of them The will of 1894 I regard as revoked by that of 1895, as both wills profess to deal with the whole of the testatrix's own property.' 6 "Prima facie every document purporting to be testamentary, and signed and witnessed in accordance witli the provisions of tlie Wills Act, ougiit 236 LAST WILLS AND TESTAMENTS. (Part 1 WALCOTT V. OCHTERLONY. (Prerogative Court of Canterbury, 1837. 1 Curt. 580.) Sir Herbert Jenner.'' Charlotte Anne Montgomerie Ochterlony, the deceased in this case, died at Edinburgh, on the 9th of June, 1835, of the age of twenty-three years, leaving an only brother, Sir Charles Aletcalf Ochterlony, Baronet, her only next of kin. On the 30th of April, 1834, the deceased, when in London, with her own hand made her will, of which she appointed James George, John Edward Wal- cott, and John Ross executors. This will was deposited with Mr. George for safe custody; and the question is, Whether, under the circumstances of this case, that will is revoked? In November, 1834, the deceased went to lodge at the house of a IMrs. Bogle in Edin- burgh, where she continued until her death. In April, 1835, it ap- pears that she was attacked with a disease of the heart, of which she ultimately died; and her medical attendants directed that she should not be suffered to write or read, or attend to business, in order that she might not be agitated. In the beginning of May, 1835, Mrs. Bogle, by the deceased's de- sire, wrote to Captain Walcott's wife at Bath requesting her to get her husband to write to Mr. George, directing him to destroy the de- ceased's will. Captain Walcott accordingly wrote to Mr. George, but he declined to destroy the will, but sent it to Captain Walcott that he might, if he thought proper, destroy it or forward it to Miss Ochter- lony. Captain Walcott, it appears, on the 10th of June, enclosed the will in a letter to the deceased, which he forwarded by a lady who was going from Bath to Edinburgh, but the deceased died before the to be admitted to probate. When, however, there are more testamentary documents than one, the presumptive admissihilify to probate of the docu- ments may be disj>laced, because it may be that there is a sequence in the dates of the execution of the documents, which, coupled with the words of the later documents, or the inferences to be drawn from those words, leads to the conclusion that the later document was intended as a revocation of the earlier, or, it may be, intended to revoke partially or to modify the earlier document, or, lastly, it may be that, apart from any question of revo- cation, the court has to deal with documents which are proved to have been executed on the same date and occasion, or which are undated, and as to which it is Impossible to affirm that the one has any priority in time of exe- cution over the other. In this last case, if the documents are so incon- sistent that they cannot stand together, in my opinion probate becomes im- possible, because the presumption of admissibility to probate of a testa- mentary document executed in accordance with the Wills Act is displaced." V'aughan Williams, L. J., in Townsend v. Moore. [IOO.jI P. OG, 77. On the ef- fect of a codicil as altering or revoking a legacy or devise in a will, see 11 Pi-ob. Rep. Aim. 115, note; 1 L. R. A. (N. S.) nOT. note. "In construing a will and codicil it is the general rule that the disposition made by the will should not be disturbed further than is absolutely necessa- ry to give effect to the codicil. The codicil revokes only so much of the will as is inconsistent with it." Carter, J., in Wardner v. Baptist Memorial Board, 232 111. am, 611, 83 N. E. 1077, 1079, 122 Am. St. Rep. 138 (1908). 7 The statement of facts is omitted. Ch. 7) THE REVOCATION OF WILLS. 237 will arrived. It appears that up to the time of her death, the deceased expressed her anxiety that the will should be destroyed, and stated to Mrs. Bogle that she would make a new will in order to revoke the former, but that Mrs. Bogle dissuaded her from so doing, informing her that as the will would be destroyed it was unnecessary to make a new one. It is proved by Mrs. Bogle, that the letters were written by the de- ceased's direction, and that the passages relating to the destruction of the will were read over to and approved of by her. Now, although looking at the contents of the will, there was no reason to suppose that the deceased would depart from it; yet improbability must give way to facts, and there is no ground to suspect that Mrs. Bogle, who was ignorant of the contents of the will, had any interest or bias in respect to it. The first question, therefore, on the facts she deposed to is. What was the intention of the deceased? There could be no doubt of her animus revocandi, and having established this point, what does the law require to give effect to such intention? The Statute of Frauds provides that no will in writing of personal estate shall be repealed, nor any clause or bequest therein altered or changed by any words. Is this a revocation by words? I apprehend not. The deceased did not say, "I revoke my will," but in effect says, "Mr. George is in possession of my will ; I am not able to destroy it myself, but I desire that he will destroy it ;" and this amounted to a present intention absolutely to revoke, which was written down at the time, approved of by the deceased, and by her direction communi- cated to the person in whose custody the will was ; it was an absolute direction to revoke, reduced into writing in the deceased's lifetime. There is nothing in the Statute of Frauds which prevents such revo- cation having effect, and it is clear that, prior to that statute, a will might be so revoked. Further, the deceased subsequently directed a letter to be written to Mr. George, intimating that she would give her reasons thereafter, and evinced anxiety for a reply to that letter down to the time of her death ; there can be no doubt that she died in the intention to revoke the will, and in the belief that it was revoked. I am of opinion, that the will in this case is revoked, and that the deceased is dead intestate.* 8 "By the act of 1789 no will or clause of any will is revocable but by a subsequent will or codicil or other writing executed according to the provi- sions of that act. or by concealing or destroying it. To say that a will, not signed by the testator or attested by three witnesses, could revoke a former will, would be to repeal the third section of that act." Evans, J., in Farr v. O'Neall, 1 Rich. Daw (S. C.) SO, 88 (.1844). For a case where a will was re- voked by a witnessed writing not a will, see Toomer v. Sobiuska, [1907] P. 106. In Mahai-ajah Pertab Narain Singh v. Maharanee Subhao Kooer, L. R. 4 Ind. App. 228 (1877), where it was held that a verbal direction given by a Hindu testator to a third party, to destroy his will, revoked the will, though the third person did not in fact destroy it, the court said (page 245) that the 238 LAST WILLS AND TESTAMENTS. (Part 1 HELLIER V. HELLIER. (High Court of Justice, Probate Division, 1SS4. L. R. 9 P. D. 237.) Butt, J.^ In this case the facts proved and the inferences to be drawn from them do not create much difficulty, but the question for the decision of the court is as to the legal consequences arising from those facts. A will was duly made by this testator in the month of April, 1864, by which he leaves the whole of his estate to his wife, the present plaintiff, who propounds the will, and he makes her sole executrix. It is also established by evidence that in the autumn of 1877 the testator executed in due form another will ; and that that other will made, in part, a different disposition of his property. I do not think that there is evidence from which I ought to infer that there was any change of the executrix, or any revocatory clause in the second will, or any bequests wholly inconsistent with the first will. Those being the facts, what is the conclusion that is to follow? I am of opinion that in the absence of any revocatory clause in the sec- ond will or a change of executrix, the second will, which is lost, can- not, unless the dispositions of the first will were wholly altered by it, be held to have revoked the first, and in my opinion there was no such alteration of the disposition of the property. This conclusion seems to me consistent with the interpretation that has already been put up- on the judgment of the Privy Council in Cutto v. Gilbert, 9 jMoo. P. C. 131, by Lord Penzance (then Sir J. Wilde) in the case of Lemage V. Goodban, Law Rep. 1 P. & M. 57. * * * I hold that the second will in this case, with the contents, as far as we know them, did not revoke the first. * * * lo SIMPSON V. FOXON. (High Court of Justice, Probate Division. [1907] P. 54.) On March 15, 1898, John Foxon made a will disposing of all of his property and appointing his daughter executrix. On September 11, 1903, he duly executed as a will a document on a printed form com- mencing : "This is the last and only will and testament of me, John Foxon." This document disposed of only a life insurance policy of £4. 13s. and appointed William Biggs executor. On April 11, 1905, he duly executed as a codicil a further document described as "a codi- cil to the last will." This codicil gave certain bequests, revoked all only difference between the case before it and Walcott v. Ochtorlory was "that the authority was given here by words, and there by a writing sulti- cient to satisfy the Statute of Frauds. In that case, as In this, tlie au- thority was not exercised by the actual destruction of the will." » The statement of facts is omitted, and part only of the opinion is given. 10 See Hitchins v. Basset, 2 Salk. 592 (1693). Ch. 7) THE REVOCATION OF WILLS. 239 previous appointments of executors and trustees, and appointed Her- bert Simpson and William Biggs to be joint executors and trustees "of my will." Sir GoRELL Barnes, President.^* There is no doubt to my mind that, as a matter of fact, the deceased cannot really have intended the policy form of will to have been a revocation of his general disposi- tions and to have left himself intestate as to the greater part of his property. I do not suppose that anyone, having these facts before him, could come to the conclusion that the deceased did so intend. But what a man intends and the expression of his intention are two different things. He is bound, and those who take after him are bound, by his expressed intention. If that expressed intention is unfor- tunately different from what he really desires, so much the worse for those who wish the actual intention to prevail. The principle has been very fully considered in a number of authorities. I think there is a good deal more authority than was stated to me in the arguments. The numerous authorities reported, such, for instance as Plenty v. West (1845) 4 Notes of Cases, 103, 1 Rob. 264, where the words in question were "this is the last will," arose out of some difference of opinion which existed in former days as to the effect to be given to those words, but which may safely be considered as set at rest by the later decisions. The words "the last will" would not revoke a former will, if not inconsistent with it; the last will might even tend to con- firm what had gone before.^^ And so it is necessary to see what are the provisions in the last will, and if these provisions are inconsistent with those in the earlier document it may be that the later revokes the earlier one. But it does not necessarily follow that it always will do so if the two documents can stand properly together. The principle to be generally applied in considering matters of this kind is very well stated in Lemage v. Goodban (1865) L. R. 1 P. & D. 57, at page 62, where Lord Penzance, quoting from Williams on Executors (6th Ed.) p. 156 (in 10th Ed. pp. 119, 120), says: "The mere fact of making a subsequent testamentary paper does not work a total revocation of a prior one, unless the latter expressly, or in ef- fect, revoke the former, or the two be incapable of standing together ; for though it be a maxim, as Swinburne says above, that as no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in whatever form they may be (so as they be all clearly testamentary), may be admitted to probate, as together con- taining the last will of the deceased. And if a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such lat- ter instrument will revoke the former, as to those parts only, where they are inconsistent." The learned judge added: "This passage truly 11 The statement of facts is rewritten and abbreviated. 12 See Freeman v. Freeman, 5 De G., M. & G. 704 (1854) ; Lemage v. Good- ban, L. R. 1 P. & D. 57 (1865) ; Gordon v. Whitlock, 92 Va. 723, 24 S. E. 342 (1896) ; Fry v. Fry, 125 Iowa, 424, 101 N. W. 144 (1904). 240 LAST WILLS AND TESTAMENTS. (Part 1 represents the result of the authorities"; and he continued as fol- lows: "The will of a man is the aggregate of his testamentary in- tentions, so far as they are manifested in writing, duly executed ac- cording to the statute. And as a will, if contained in one document, may be of several sheets, so it may consist of several independent papers, each so executed. Redundancy or repetition in such inde- pendent papers will no more necessarily vitiate any of them, than sim- ilar defects if appearing on the face of a single document. Now it was argued that in the case of more than one testamentary paper, each professing in form to be the last will of the deceased, it is necessary for the court, before concluding that they together constitute the will, to be satisfied that the testator intended them to operate together as such. In one sense this is true, for the intention of the testator in the matter is the sole guide and control. But the 'intention' to be sought and discovered relates to the disposition of the testator's property, and not to the form of his will. What dispositions did he intAd? — not which, or what number, of papers did he desire or expect to be admitted to probate? — is the true question. And so this court has been in the habit of admitting to probate such, and as many papers (all properly executed), as are necessary to effect the testator's full wishes, and of solving the question of revocation by considering not what papers have been apparently superseded by the act of executing others, but what dispositions it can be collected from the language of all the papers that the testator designed to revoke or to retain." That being the principle which seems to me applicable to the present case, I do not feel any difficulty in arriving at a decision upon it. In my opinion all three documents should be admitted to probate. I do not think, having regard to the circumstances which these testamentary papers disclose, that the words "last and only" can be taken as re- voking what had been done by the previous will. The document which contains the words in question is a printed form, evidently drawn up for the purpose of disposing of a policy of assurance only and appointing an executor to deal with that mat- ter only. It is very unfortunate that it should have been drawn in this way, but it is, notwithstanding the words "and only," not in- tended to be a complete disposition of the testator's property. If the other view were adopted it would lead to this, that apart from the insurance money, the whole of this man's property would remain undealt with, except as to what is disposed of by the codicil, although the testator cannot possibly have had any idea that he had not dis- posed or was not disposing of- all that he could have dealt with. The words "last and only" cannot be treated as an express revoca- tion ; and, applying the principles I have already referred to, the dis- positions of this man's property seem to me to show that the document in question was not intended by him to be, and it is not, upon its face, a controlling and revoking disposition. In other words, neither by ex- press intention nor by disposition of property can you gather that Ch. 7) THE REVOCATION OP WILLS. 241 the words "and only" are to be treated as a revocation of the earlier will. I grant probate of all three documents.^' The costs must, of course, come out of the estate. SECTION 3.— REVOCATION BY BURNING, TEARING, CAN CELING. OBLITERATING. MUTILATING, OR OTHER- WISE DESTROYING CHEESE V. LOVEJOY. (Court of Appeal, 1876. 2 P. D. 251.) This was an action to obtain probate in solemn form of the will, dated the 3d of July, 1849, of John Harris, who died on the 13th of May, 1876, with three codicils, one dated the 3d of July, 1849, and the two others the 21st of September, excluding from the probate all the alterations and interlineations appearing on the will. That those instruments were originally well executed was not seri ously contested. The plaintiff under the will was a beneficial legate of a considerable part of the testator's personal estate and a devises', of a considerable part of his freehold estate. The heir at law and next of kin contended that the testamentary instruments had been re- voked. The evidence as to revocation was to the following effect : The will and codicils were at the testator's death found upon the kitchen table. The testator had drawn a pen through the lines of some part of the will, leaving the words perfectly legible, and had written on the back, "All these are revoked." A housekeeper, who had been nine years IS On the other hand, It seems that a later will, which does not contain an express revocation clause and does not dispose of the residue of testator's estate, may wholly revoke by implication earlier testamentary documents which disposed of the whole estate. See In the Estate of Ann Faith Bryan, [1902] P. 125. "Where a second instrument is a will, as distingnished from a codicil, the courts do not make so great an effort to reconcile it with the former will as they do in the case of a codicil. The reason for this distinction lies in the fact that a codicil is ordinarily intended merely to effect some altera- tion in the will, leaving the rest of it in force; while a later will may quite as well be intended to dispose of testator's property in disregard of the for- mer will." Page on Wills. § 269, p. 300. \^^ae^e several papers together constitute the last will, several sets of ex- ecutors may be entitled to letters. For a case of that kind, see In the Goods of Strahan, [1907] 2 Ir. 484. Note. On the pro tanto revocation of a hologi*aphic will by holographic Interlineations and alterations, see La Faie v. Lee, 63 W. Va. 3S8, 60 S. E, 388, 14 L. R. A. (N. S.) 968 (1908), quoted from in note 1 to Milam v. Stan- ley, ante, p. 94. Cost. Wills— 16 242 LAST WILLS AND TESTAMENTS. (Part 1 with the testator and left in January, 1876, stated that she had heard the testator speak about his wills, and say he had made two or three; but that he had cancelled them and they were good for nothing, and that the testator had in her presence taken up this will and thrown it among a heap of waste papers on the floor. The housemaid deposed that she had first seen the document about eleven years ago in the tes- tator's sitting room under the cushion on the sofa. That about seven or eight years ago the testator kicked it into a corner of the sitting room among 'a quantity of other papers, and that she took it out of the sitting room, where it was lying by the coal box along with other scraps of paper, and took it into the kitchen, where she put it on the table. That it was sometimes on the table, sometimes on the kitchen window, and sometimes on a chair, just where she chose to put it, but the testator never asked for it, nor was it produced to him again. The judge, being of opinion that there was no evidence of revoca- tion within the 20th section of the Wills Act, directed the jury to find a verdict for the plaintiff. The principal defendants excepted to this ruling in order to bring the case before the Court of Appeal. James, L. J. We cannot allow the appeal in this case. It is quite clear that a symbolical burning will not do, a symbolical tearing will not do, nor will a symbolical destruction. There must be the act as well as the intention. As it was put by Dr. Deane in the court b?low : "All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying; there must be the two." • BAGGALLAY and COTTON, L. JJ., concurred. DOE d. REED v. HARRIS. (King's Bench, 1837. 6 A. & E. 209.) EjectmenMor freehold lands. The lessor of the plaintiff claimed as the son and heir at law of John Reed and the defendant, the niece of John Reed, claimed as his devisee. The testator was an old and in- firm man and the defendant lived with him as his housekeeper. While she exercised great influence over him they had frequent quarrels. The testimony of one Esther Treharne, the testator's servant, was that the testator threw the will on the fire, but that the devisee "scramped" it off; that the next morning the devisee pretended to burn the will in the testator's presence ; and that, on being told by the witness that the latter doubted the burning of the will, the testator declared he would make another. The devisee swore that the day after the testator died she found the will in a trunk used by the testator for holding his deeds and papers. The will produced on the trial had no mark of fire and it did not appear that any envelope had been found upon it. The plaintiff's counsel contended, first, that the testator had been Ch, 7) THE REVOCATION OF WILLS. 243 prevailed upon to execute the will by importunities of such a nature as to deprive him of his free agency; and, secondly, that, assuming the will to have been properly executed, the evidence showed a cancel- lation within the Statute of Frauds, 29 Car. II, c. 3, § 6. The learned judge stated to the jury, on the latter point, that, if they believed the evidence of Esther Treharne, and were satisfied that the testator threw the will on the fire intending to burn it, that Alice Harris took it off against his will, that he afterwards insisted on its being thrown on the fire again, with intent that it should be burned, and that she then promised to burn it, there was a sufficient cancellation within the stat- ute. The jury found' for the plaintiff, not stating the grounds of their verdict. In the ensuing term a rule nisi was obtained for a new trial, on account of misdirection on the two points above stated. It was also objected that the evidence of cancellation was not of a proper kind ; the fact being proved only by declarations, and not by the tes- timony of eye-witnesses, or by marks of cancellation on the will it- self.i* Lord Denman, C. J. The Statute of Frauds requires that a will shall be executed with certain solemnities ; and, after prescribing these, directs how it shall be revoked ; and that is by certain acts, which are specified. In the present case, there is no evidence that any one of those acts has been done. It is impossible to say that singeing a cover is burning a will within the meaning of the statute. The terms used in the sixth section show that to assert this would be going a length not contemplated in the statute. The acts required are pal- pable and visible ones. Cases may, indeed, be put where very little has been done, as a slight tearing and burning, and yet a revocation has taken place; but the main current of the statute is against the argument from such cases. The intention seems to have been to pre- vent inferences being drawn from such slight circumstances. In Bibb dem. Mole v. Thomas, 2 W. Bl. 1043, the will was slightly torn and slightly burned : and the court said that the case fell withm two of the specific acts described by the statute; there was both a burning and a tearing. Doubt might be entertained now whether the proof there given would be sufficient as to these; but, as the court considered what was done to have been a burning and a tearing, the case shows at least that they did not think the acts required by the statute could be dispensed with by reason of the conduct of a third party. In Doe dem. Perkes v. Perkes, 3 B. & Aid. 489 (S. E. C. L. R. 353) the testator's hand was arrested while he was in the act of tearing the will : he submitted to the interference ; and the intention of revoking w,as itself revoked before the act was complete. There it was properly left to the jury to say whether the testator had done all he intended or not. 1* The statement of facts is rewritten and abbreviated. 244 LAST WILLS AND TESTAMENTS. (Part 1 Neither of these cases at all approaches the present. It would be a violence to language, if we said here that there was any evidence to go to the jury of the will having been burned. Great inconvenience would be introduced by holding that there may be a virtual compliance with the statute; but there is none in saying that, if a testator per- severes in the intention of revoking his will, he shall fulfil it by some of the means pointed out in the statute ; that he shall revoke the will, if not in his possession, by writing properly attested ; or cancel it, if in his power, by some of the other acts which the statute prescribes. Patteson, J. I am quite satisfied that I left this case wrongly to the jury. I did not see the distinction between the present case and Bibb dem. Mole v. Thomas, 2 W. Bl. 1043, as I ought. There some- thing had been done which the court considered to be a burning and a tearing of the will. The testator is described, not as having merely doiie something to the corner of the will, but as having given it "some- thing of a rip with his hands," and so torn it "as almost to tear a bit oflF." It is plain that, on the production of the instrument, it would ap- pear (though I do not think that important) that there had been some tearing of the will itself. As the act says that there must be a tear- ing or burning of the instrument itself, a mere singeing of the corner of an envelope is not sufficient. To hold that it was so would be say- ing that a strong intention to burn was a burning. There must be, at all events, a partial burning of the instrument itself. I do not say that a quantity of words must be burned; but there must be a burn- ing of the paper on which the will is. I am quite satisfied that I was wrong in my direction to the jury. Williams, J. We must give effect to a statute as providing for cases of ordinary occurrence, and not for any that may be put. It is argued that, if a testator throws his will on the fire with the inten- tion of destroying *it, and some one, without his knowledge, takes it away, that is a fraud which ought not to defeat his act. But so it might be said that, if the testator sent a person to throw it on the fire, and he did not, the revocation was still good. Where would such constructions end? The effect of them would be to defeat the object of the statute, which was to prevent the proof of a cancellation from depending on parol evidence. The will must be torn or burned ; and the question will always be whether that was done with intention to cancel: how much should be burned, or. whether the will should be torn into more or fewer pieces, it is not necessary to lay down. Coleridge, J. The kind of construction which has been insisted upon would lead to a repeal of the statute on this subject, step by step. The statute, for wise purposes, does not leave the fact of cancellation 'lo depend on mere intent, but requires definite acts. In the making of a will, if the proper signatures were not afiixed, no explanation of the want of signatures could be received ; and so, when a will has been made, to revoke it, there must be some act coupled with the intention of revoking, to bring the case within the sixth section. The question Ch. 7) THE REVOCATION OF WILLS. 245 is put, whether the will must be destroyed wholly, or to what extent? It is hardly necessary to say; but there must be such an injury with intent to revoke as destroys the entirety of the will, because it may then be said that the instrument no longer exists as it was. Here the fire never touched the will. It can only be said that the testator's in- tention to cancel was defeated by the fraud of another party. But, to instance another case under the same clause of the statute, suppose the testator had written his revocation, and that, by the act of some other party, he had been prevented from signing, or the witnesses had been prevented from attesting it ; could it be said that the testator had done all that lay in him, and therefore the act of revocation was com- plete? We must proceed on such a view of the statute as accords with common-sense. Rule absolute.^' GILES V. WARREN. (Court of Probate. 1872, L. R. 2 P. & D. 401.) Lord Penzance.^* I think in this case there was no revocation. The fact that a testator tears or destroys his will is not itself sufficient to revoke one properly executed. That is to say, the bare fact. If, for instance, he tears it, imagining it to be some other document, there would be no revocation, for there would be no animus revocandi. He must intend by the act to revoke something that he had previously done. There can be no intention to revoke a will, if a person destroys the paper under the idea, whether right or wrong, that it is not a valid will. Revocation is a term applicable to the case of a person cancelling or destroying a document which he had before legally made. He does not revoke it if he does not treat it as being valid at the time when he 18 See White v. Casten, 46 N. C. 197, 201, 59 Am. Dec. 585 (1853), where the court said : "The principle which we would extract from the cases cited, is that, where the revocation of a will is attempted by burning, there must be a present intent on the part of the testator to revoke, and this intent must appear by some act or symbol, appearing on the script itself, so that it may not rest upon mei*e parol testimony, and if the script is in any part burnt or sin yo^^ shall see if I have done anything for the rascal or not. I have made him a gentleman." He then began to tear the will, and tore it twice through ; the witness then laid hold of his arms and en- treated him to abate his passion. The devisee then, who was present, put his hands together, as if in an attitude of prayer, and said: "Con- sider my family. I beg your pardon for what I have said. Had I been worthy to have known what had been done for me, I should have been satisfied." Upon this, the testator became calm, and the witness let loose his arms. The testator then folded up the will, and put it in his pocket, and afterwards pulled it out again, and said, "It is a good job it is no worse," and after fitting the pieces together, he added, "There is nothing ripped that will be any signification to it." The will was found after the death of the testator, in four parts. Upon this 17 See Estate of Olnisteart. 122 Cal. 224, 229, 230, 54 Pae. 745 (1898). That a destruction cannot be ratified, so as to make it a revocation, see Clinijan V. Mitcheltree, 31 Pa. 25 (18r.(!) ; Mundy v. Mundy, 15 N. J. Eq. 200 (18.")S) ; Gill V. Gill, [1909] P. 157. In the last case Bargrave Deane, J., said that, "if a testator under such circumstances desired that the act of destruction performed without his authority at the time should prevail, he had it in his power effectually to revoke his will in accordance with the provisions of the Wills Act. He could either execute a document expressly revoking his will, or he could make a fresh will dealing with his property in any way he chose. In the present instance, so far from doing anytliing of the sort, the testator always treated the act of destruction by his wife rather as a joke and as of no effect in law; and he was right." Id. IGl, 1G2. But see Cutler V. Cutler, 130 N. C. 1, 40 S. E. G89. 57 L. R. A. 209, 89 Am. St. Rep. 854- (1902) ; Parsons v. Balson, 129 Wis. 311, 109 N. W. 13G (190G). Ch. 7) THE REVOCATION OF WILLS. 247 evidence, the learned judge left it to the jury to say whether the testa- tor had done all he intended, or whether he was not prevented from completing the act of destruction he intended. The jury found a ver- dict for the defendants, establishing the will ; and now W. E. Taunton moved for a new trial. Abbott, C. J. Upon the evidence, it appears, in the present case, that the testator, being moved with a sudden impulse of passion against one of the devisees under his will, conceived the intention of cancelling it, and of accomplishing that object by tearing. Having torn it twice through, but before he had completed his purpose, his arms were ar- rested by a bystander, and his anger mitigated by the submission of the party who had provoked him ; he then proceeded no farther, and after having fitted the pieces together, and found that no material word had been obliterated, he said, "It is well it is no worse." Now, if the cancellation had been once complete, nothing that took place afterwards could set up the will. But it was a question for the jury to determine whether the act of cancellation was complete. They have found that it was not, and that it was the intention of the testator, if he had not been stopped, to have done more, in order to carry his purpose into effect. I can see no reason to think that verdict wrong. Bayley, J. I think this verdict right. If the testator had done all that he originally intended, it would have amounted to a cancellation of the will; and nothing that afterwards took place could set it up again. But if the jury were satisfied that he was stopped in medio, then the act not having been completed will not be sufficient to destroy the validity of the will. Suppose a person having an 'intention to cancel his will by burning it, were to throw it on the fire, and upon a sudden change of purpose, were to take it off again, it could not be contended that it was a cancellation. So here, there was evidence from whicli a change of purpose before the completion of the act, might properly be inferred. The jury have drawn that inference, and I see no reason to disturb the verdict. HoLROYD, J. I was of opinion, at the trial, that if the act of tear- ing Was completed nothing that took place afterwards was sufficient to set up the will again. The Statute of Frauds says "that no devise in writing of lands shall be revocable, otherwise than by some other will, or by burning, cancelling, tearing, or obliterating the same by the testator," etc.; but, in order to effect this, the act of tearing, etc., must be complete. I left it to the jury to say, whether that was so, and they were of opinion, that the testator had not completed the act he had intended, and I thought that they drew the right conclusion from the evidence. Best, J. I am of opinion, that the verdict is right. Tearing is one of the modes by which a will may be cancelled ; but it cannot be con- tendea that every tearing is a cancellation : for if it were, a testator, who took his will into his hands with intent to tear it, must, if he should tear it in the smallest degree and then stop, be considered as 248 LAST WILLS AND TESTAMENTS. (Part 1 having cancelled it. The real question in these cases is, whether the act be complete. If the testator here, after tearing it twice through, had thrown the fragments on the ground, it might have been properly considered, that he intended to go no farther, and that the cancellation was complete; but here there is evidence, that he intended to go far- ther, and that he was only stopped from proceeding by an appeal made to his compassion by the person who was one of the objects of his bounty. The case in Blackstone is very distinguishable; for there the testator completed his purpose, although the will was not destroyed. I see no reason, therefore, for disturbing the verdict Rule refused.^® In re GOODS OF MORTON. Court of Justice, Probate Division. 1887. L. R. 12 P. D. 141.) ^ Henrietta G. Morton, late of Newcastle-on-Tyne, deceased, died Jan- uary 26, 1887, having duly executed a last will, bearing date Septem- ber 16, 1853. After her death the will, which had remained in her possession, was found in a trunk with the signatures of the testatrix and the attesting witnesses scratched out as if with a penknife. At the bottom of the will there was a memorandum in the handwriting of the deceased, dated "November, Saturday, 1861," but not executed, whereby for reasons given the will was declared to be canceled. Searle, moved for a grant of administration to Sarah Francis Mor- ton, the sole surviving sister and next of kin of deceased, as in case of intestacy. Butt, J. I do not think there is any difficulty in the case. What the testatrix did may be regarded as a lateral cutting out. The paper is not pierced, but the signatures are scratched away. I think the will has been revoked, and I grant administration to the applicant^* 18 See Elms v. Elms, 1 Sw. & Tr. 155 (1858). 10 Id ITobbs v. Knight, 1 Curt. 768 (18?.8), where It was held that by cut- ting out his signature to the will with the intent to revoke, the testator thereby revoked his will either by tearing or by destroying it within the meaning of the Wills Act, the court (Sir Herbert Jenner) said: "The sig- nature of the testator being, as I before said, an essential part of a will, It is difficult to comprehend when that which is essential to the existence of a thing, is destroyed, how the thing itself can exist. There can be no doubt that if the name of the testator had been burned or torn out, the revocation would have been as complete as if the will had been torn into twenty pieces. If this were not the case, it would lead to many absurd consequences. But it has been argued, that as the present act of Parliament has pointed out certain modes with regard to the revocation of wills, the court cannot go beyond the express terms of the act; that the words being confined to burn- ing, tearing, or otherwise destroying, omitting the terms 'obliterating' and 'canceling' used in the Statute of Frauds; there must l>e an actual burning or tearing, or as to 'otherwise destroying', that the whole Instrument must be destroyed; that the cutting, in the present case, is not tearing — (burn- ing is out of the question) — and the instrument not being destroyed, that there Is no revocation ; and upon this part of the argument, the case of Doe Ch. 7) THE REVOCATION OF WILLS. 249 GAY V. GAY. {Supreme Court of Iowa, 1882. 60 Iowa, 415, 14 N. W. 238. 46 Am. Rep. 78.) This is a proceeding at law to set aside the probate of a will of Harvey D. Gay. The petition alleges that the instrument in question was at one time the last will of Harvey D. Gay, but that during his life-time he destroyed it by crossing his name, and by cutting and tear- ing the same with intent to revoke and destroy the will, and that since that time it has not been of any force or validity. The cause was tried to a jury, and the court directed them to find that the will was not re- voked. The plaintiff appeals. Day, J. Harvey D. Gay died in July, 1878. Some time after his death his widow, Virginia Gay, discovered a package of papers in the secretary in the back parlor. Soon thereafter she gave the papers to Mr. Hawkins, the administrator of the estate. About the last of Au- dem. Reed v. Harris, 6 A'd. & Ell. 209, 1 Nev. & P. 405, In the Queen's Bench, was referred to, in which the testator had thrown his will on the fire, with the intention of destroying it, and a part of the cover was burnt, but there being no burning on the instrument itself, the judges of that court held that the will was not revoked; that the words of the Statute of Frauds had not been complied with. But that case is not applicable to the present point, for here a part of the will, the most essential part, is removed, and if in that case the name of the testator had been burned or torn off, I think the Court of Queen's Bench would have held that to be an effectual revocation by burning or tearing, for, according to the judgment in that case, it was not required that the whole will should be burned or torn. The learned judges do not say how much it is necessary should be burned, but Mr. Jus- tice Coleridge says it is sufficient, if the entirety of the will is destroyed; his expressions are these : 'We were pressed with the argument : Must the whole of the docvunent be destroyed? I say no; but there must be a de- struction of so much as to impair the entirety of the will, so that it may be said that the will does not exist in the manner framed by the testator.' So I say here, Is not the entirety of the will destroyed by the removal of the signature of the testator?. It is true this is not an act of tearing, in the strict sense of that term ; but, if the circumstances of this case required it, I think it would not be difiicult to show that a will might be revoked by cutting with an instrument as well as by tearing, if a corresponding effect be produc- ed by the one act as by the other. The Latin equivalent for the verb 'to tear,' is lacerare, but I find, upon looking into the dictionaries, that exscindere, 'to cut out,' is also used in the sense of 'to tear,' and Cicero uses the phrase 'exscindere epistolam' (which is remarkable), with regard to the destruction of a document. But it is unnecessary to enter further into the consideration of this point, for, consistently with the true construction of the act of Par- liament, and the decision of the learned judges of the Court of Queen's Bench, it is not necessary, in order to bring the act within the meaning of the words 'otherwise destroying,' that the material of the will should be de- stroyed ; it l9 sufficient, as it appears to me. if the essence of the instrument (not the material) be destroyed. Suppose a will to be written in pencil, and the words were removed by means of Indian rubber; could there be any doubt that that would be a sufficient revocation? Cutting Is a mode of de- stroying as effectual as tearing, and it appears to me that if tearing a will to this extent be a sufficient destruction of it, the same effect must be at- tributed to the act of cutting it; what would be the consequences of a dif- ferent construction? Suppose a will were torn into two or more pieces, the will, no doubt, would be revoked; but if it were cut into twenty pieces with A knife, that would be no revocation, and if the pieces could be collected and 250 LAST WILLS AND TESTAMENTS. (Part 1 gust, 1880, the administrator, in looking over these papers, which con- sisted chiefly of canceled mortgages, found the paper in question, pur- porting to be the last will of Harvey D. Gay. When found, two scrolls were drawn with a pen lengthwise along the signature, but not in such manner as to obliterate it or render it illegible. The will was then filed in the office of the clerk of the circuit court for the purpose of probating it. Some time thereafter the deputy clerk, in unfolding the will, tore the right-hand margin to the depth of one-eighth or one- fourth of an inch. This tear communicated with and opened a cut just over the signature, about two or three inches in length. When this cut was made does not satisfactorily appear, but the evidence shows that it was not made entirely through the paper, and that it was not visible until it was opened by the deputy clerk. 1, The determination of the question involved will be greatly facili- tated by considering the state of the law upon the subject prior to the adoption of the statute under which the question arises. By the sixth pasted together, the will must be pronounced for by the court. I cannot con- ceive it possible that it was the intention of the Legislature to leave the law in that state. The question then comes to this: whether this be or be not a destruction of the will. I consider the name of the testator to be essen- tial to the existence of a will, and that if that name be removed, the es- sential part of the will is removed and the will is destroyed; otherwise the statute does certainly not deserve the title it bears, namely, 'An act to amend the laws with respect to wills.' It was said in the argument (perhaps it is not very material) that a will cannot now be revoked by obliteration, the term 'obliteration' having been advisedly omitted by the Legislature; but I am not prepared to say (although I now merely throw this out) that a will may not be revoked in that way, for I see no reason why, if the obliteration amount to a destruction of the will (that is, if the name of the testator, which is essential to a will, be so obliterated that it cannot be made out), a will may not be revoked in that way as well as any other. Suppose a testator had so obliterated his name from a will as to render it Impossible to make it out, and I am not at liberty to supply it by evidence aliunde, how would this operate with respect to the 21st clause of the act, which enacts, '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'? By this clause, as I understand it, where words are so obliterated that they do not appear, it is a good revocation pro tanto. Would not the same rule be applied with respect to the name of the testator? I think that it was the intention of the Legislature that it should be sufficient if the name of the testator was so obliterated that It could not be made out; it never could be intended that a testator might revoke his will pro tanto, and yet not be at liberty to revoke the whole will." The court also expressed the opinion that "If the names of the attesting witnesses were erased by the testator animo revocandi, it would be a sufficient revocation. It might be difficult to make it appear that the names of the witnesses were erased animo revocandi ; but if it could appear, I should be of opinion that it would amount to a de- struction of the will, within the meaning of the act of Parliament. I do not think that the words 'otherwise destroying' mean that the material of the will must be destroyed, but that it must be something which would amount to a destruction of the will itself." That tearing off a seal to revoke is a revocation, see Price v. Powell, 3 H. & N. 341 (1858). Merely removing pina which fasten the sheets of the will together, without otherwise injuring the sheets, is held not to be a tearing. Woodruff v. Hundley, 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145 (1900). "Ch. 7) THE REVOCATION OF WILLS. 251 section of the statute of frauds (29 Car. II, c. 3) it is provided that the revocation of a will by injury to the instrument itself can be ef- fected only "by burning, canceling, tearing, or obliterating the same by the testator himself, or in his presence, and by his direction and consent." Under this statute it was held that to constitute a revoca- tion of a will by burning there must at least be a burning of a part of the paper on which the will is (Reed v. Harris, 8 Adol. & E. 1), and that a very slight act of tearing and burning is sufficient to effect a revocation, if done with such intention (Mole v. Thomas, 2 W. Bl. 1043) ; that when a pencil, instead of a pen, is used for cancellation, the revocation is not necessarily ineffectual, and it may be shown that it was intended to be final (IMence v. Mence, 18 Ves. 348; Frances v. Grover, 5 Hare, 39) ; and that, in order to constitute a revocation by obliteration, it is not essential that every word shall be obliterated, the revocation being complete if enough of the material part be expunged to show an intention that the devise shall not stand, as where the tes- tator draws his pen across the devisee's name (Mence v. Mence, 18 Ves. 350; 1 Jarman, Wills, 129-135). The act 1 Vict. c. 26, provides that the revocation of a will, by in- jury to the instrument itself, shall be only "by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence, and by his direction, with the intention of revoking the same." This statute, it is to be observed, omits the words "canceling or obliterating," found in the statute of frauds, and substitutes there- for the words "otherwise destroying." Under this statute it has been held that the words "otherwise destroying" are to be taken to mean a destruction ejusdem generis with the modes before mentioned — that is, destruction, in the proper sense of the word, of the substance or contents of the will, or at least complete effacement of the writing, as by pasting over it a blank paper (Re Horsford, L. R. 3 P. & D. 211), and not a destroying in a secondary sense, as by canceling or incomplete obliteration (Stephens v. Taprell, 2 Curt. 458; Hobbs v. Knight, 1 Curt. 779) ; that cancellation and obliteration, unless they prevent the words as originally written from being apparent by looking at the will itself, are plainly excluded by the statute (Re Dyer, 5 Jur. 1016 ; Re Fary, 15 Jur. 1114) ; and that glasses may be used for dis- covering what the words obliterated originally were (1 Jarman, Wills, 142, and cases cited). Chapter 162 of the Revised Statutes of the territory of Iowa, § 9, respecting the revocation of a will by injury ^o the instrument cited, provides that "no will, nor any part thereof, shall be revoked unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction." This, it will be observed, is identical with the statute. 29 Car. II, c. 3. In the Code of 1851 the provisions of our present statute were adopted as follows: 252 LAST WILLS AND TESTAMENTS. (Part 1 "Section 1288. Wills can be revoked, in whole or in part, only by being canceled or destroyed by the act or direction of the testator with the intention of so revoking them, or by the execution of subsequent wills. "Section 1289. When done by cancellation, the revocation must be witnessed in the same manner as the making of a new will." Revision, §§ 2320, 2321; Code 1873, §§ 2329, 2330. When a statute provides the manner in which a will may be revoked, that manner must be pursued. Wright v. Wright, 5 Ind. 391 ; Runkle V. Gates, 11 Ind. 95; Blanchard v. Blanchard, 32 Vt. 62; Gains v. Gains, 2 A. K. Marsh. (Ky.) 190, 12 Am. Dec. 375; Clingan v. Mitch- eltree, 31 Pa. 25 ; Reed v. Harris, 6 Adol. & E. 209. Our statute pro- vides that a will may be revoked, in whole or in part— First, by being destroyed ; second, by being canceled — the cancellation being witnessed in the same manner as the making of a new will. If the scroll drawn . over the name of the testator had entirely obliterated the signature, this might have worked a destruction of the will, upon the ground that it had destroyed that without which the will could not exist. See Hobbs V. Knight, 1 Curt. Ecc. Rep. 768 ; Price v. Powell, 3 Hurl. & N. 341; The Goods of Harris, 3 Sw. & Tr. 485; Goods of Gullan, 1 Sw. & Tr. 23 ; Goods of Coleman, 2 Sw. & Tr. 314. In this case, however, the scrolls drawn across the signature of the testator do not obliterate it nor render it illegible. They do not, therefore, constitute a destruction of the will. See Re Dyer, 5 Jur. 1016; Re Fary, 15 Jur. 1114; Re Brewster, 6 Jur. (N. S.) 56; Lushington v. Onslow, 12 Jur. 465 ; Stephens v. Taprell, 2 Curt. 458 ; Re Beavan, 2 Curt. 369 ; Re Ibbitson, 2 Curt. 337 ; In the Goods of Horsford, L. R. 3 P. & D. 211. It is insisted by the appellant that as the statute provides for the partial revocation of a will by its being destroyed, the word "de- stroyed" cannot mean annihilated, but is sufficiently answered by what was done in this case. It is apparent, however, that there may be a destruction of a particular part of a will by erasure or complete ob- literation; and that, admitting that "destroyed" does not, as used in the statute, mean annihilated, it does not follow that a will may be destroyed by simply drawing a scroll through the signature.^ The most that can be said for what was done in the present case is that it constitutes a cancellation of the signature not rendering it illegible, and as it was not witnessed in the manner required by section 2330 of the Code, it is inoperative. The" court did not err in directing a ver- dict for the defendant. 2. The plaintiff introduced as a witness one Paul Carrell, and of- fered to prove by him that in the early part of 1878 decedent had a conversation with the witness in which he went over the question of his property, and in his conversation, referring to the terms of what he claimed to have been his will, said that he had destroyed it ; that the law would make a proper distribution of his property to suit him ; Ch. 7) THE REVOCATION OF WILLS. 253 and that his wife would now get under the law what she would have got under the old will, and that he had destroyed his will and should not make another. The plaintiff also introduced one Kennedy, and offered to prove by him that he had a conversation with Mr. Gay, about two weeks prior to his death, with reference to the disposition of his property, in which he said that he had destroyed his will; that he had made a will at one time, but had since destroyed it; that at the time he made his will he desired his wife to have all the property he had ; that since that time his property had more than doubled, and that now, if he should die, his wife would get as much as she would at the time he made his will, if she had got it all; that he did not propose to go back on his mother ; that he ought to do something for her ; and that he had destroyed his will and should not make another. The defend- ant objected to this testimony, and the objection was sustained. The appellant assigns this action of the court as error. The statute requires that the act of destruction or cancellation, which will work a revoca- tion of a will, must be done with the intention of revoking it. When the act is sufficient to work a revocation, if done with that intent', the declarations of the testator may be admissible to show the intent. See Bibb V. Thomas, 2 W. Bl. 1043; Harring v. Allen, 25 Mich. 505; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460. When, as in this case, however, the act done does not amount to a revocation, the declarations of the testator are not admissible to prove a revocation. Redf. Wills, 331; Staines v. Stewart, 8 Jur. (N. S.) 440; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Shall- cross V. Palmer, 16 Q. B. 747; Jackson v. Kniffen, 2 Johns. (N. Y.) 81, 3 Am. Dec. 390. The court did not err in rejecting the proffered testimony. Af- firmed." «o In Townphend v. Howard, 86 Me. 285, 29 Atl. 1077 (1894) the court said: "A will can be revoked in whole or in part by cancellation or obliteration. Rev. St. c. 74, § 3. To cancel is to cross out. To obliterate is to blot out. The former leaves the words legible. The latter leaves the words illegible. By either method a will can be legally revoked in whole or in part. If that which is essential to, the validity of the whole is canceled or obliterated, animo revocandi, the whole will is revoked. If only a single clause is so canceled or obliterated, then that clause only is revoked. And such can- cellation or obliterations are as effectual when made with a pencil as when made with a pen. * * * In the present case, the signatures of the tes- tator are all erased. The testator had signed the will in three places, at the bottom of the first page, at the bottom of the second page, and at the end of the will on the third page.* These signatures are all erased with a lead pencil ; and the evidence satisfies us that they were erased by the testa- tor himself, animo revocandi. * * * It is the opinion of the court, upon the whole case, * * * that the will offered for probate be disallowed."' On pencil erasures, see, also, Hilyard v. Wood, 71 N. J. Eq. 214, 63 Atl. 7 (1906); In re Frothingham's Will (N. J. Prerog.) 71 Atl. 695 (1908); Id. (N J.) 74 Atl. 471 (1909) ; Mclntyre v. Mclntyre, 120 Ga. 67, 47 S. E. 501, 102 Am. St. Rep. 71 (1904). In Evans' Appeal, 58 Pa. 238, 244 (1868), the court said: "It is true we have to do with the meaning of the words 'canceling' 'obliterating' and 'de- 254 LAST WILLS AND TESTAMENTS. (Part 1 In re KISSAM'S WILL. (Surrogate's Court, Westchester County, 1908. 59 Misc. Rep. 307, 110 N. Y. Supp. 158.) Millard, S. The last will and testament of Harriet Kissam, ex- ecuted and attested in manner prescribed by law, has been presented for probate. It is accompanied by an instrument in writing, duly ac- stroyiug' as used by the Legislature, but there is nothing in the statute that requires us to attach to them any unusual signification. Let it be admitted that, collocated as they are, we are required to consider them as dettniug acts of a similar nature. We do. All are acts done to the will itself and they are not used in their absolutely literal sense. Even burning does not mean entire consumption by fire. * * * Nor is obliteration, as meant in the act, nothing short of effacing the letters of the will, scratching them out or blotting them so completely that they cannot be read. A line drawn through the writing is doubtless obliteration though it may leave it as legible as it was before. So the destruction spoken of is not necessarily an- nihilation, or' a change into other forms of matter. Tearing into fragments is unquestionably destruction, though the fragments may be reunited. All the words are used in their popular sense, and thus used they secure the object the Legislature had in view^, a complete manifestation of an executed Intention to repeal. Each word is expressive by an act done to the paper it- self a mark upon it, evincible of a present intent that it shall not operate as a will Revocation by cancellation then is not to be understood to mean exclusively drawing crossed lines upon the paper, but it means any act done to it which, in common understanding, is regarded as cancellation when done to any other instrument." ,,or^o^ ^^ *■ In Estate of Olmsted, 122 Cal. 224, 230, 54 Pae. 745, 746 (1898), the court said- "One of the recognized modes of revoking a will is by cancellation. In its primal significance the word means a lattice work. As applied to wnt- in<-s it means the nullification of a writing by drawing upon its face lines inutile form of lattice work 'crisscross.' Usually in legal as well as m com- mon acceptance cancellation is accomplished by the drawing of any line over or across words with -the intent to nullify them." In Woodfill V. Patton, 76 Ind. 575, 40 Am. Rep. 269 (1881), where the stat- ute provided "that no will should be revoked unless the testator should de- stroy or mutilate the same," the court said: "The destruction of a will did not at common law, imply a ruin of the paper or parchment on which the words were written. It meant taking from the instrument force and effect. * * * We think the erasure of the testator's signature, designedly and deliberately made, accompanied, of course, by the intention to revoke, must be deemed a 'destruction' of the will. It is not necessary that there should be a destruction, in a literal sense, of the fabric upon which the words of the testator are written. * * * 'Mutilate' means something less than total de- struction. Mere mutilation of a will would not, of itself, take from a will all legal force. A mutilation, however, which takes from the instrument an element essential to its validity, would have the effect to revoke it. To mutilate in the sense in which it is generally used by law writers and by judges, means to render impca-fect. *. * * Purposely taking from a will the signature of the testator deprives it of an essential part, and makes it so imperfect as that it loses all legal force and effect. The manner in which the nnitilation or destruction is effected is not of controlling importance. If the signature were cut or torn from the paper; if all traces were re- moved by' a chemical preparation, there would be no room for controversy, it would plainly be a mutilation of the will. It cannot be any the less a mutilation if the signature is marked out with pen, pencil or other imple- ment which erases, cancels or obliterates." On the burden of proof in regard to alterations appearing on the face of the will see 17 L. R. A. (N. S.) 184, note. Ch. 7) THE REVOCATION OF WILLS. 255 knowledged, executed by all the heirs at law, and next of kin of de- cedent, waiving the issuing and service of citation, and consenting that will be admitted to probate. It appears by an examination of the will, which is typewritten, that a part of the second clause has been erased. The statute directs that the surrogate "before admitting a will to pro- bate must inquire particularly into all the facts and circumstances, and must be satisfied of the genuineness of the will and the validity of its execution." Code Civ. Proc. § 2622; Matter of Bartholick's Will, 141 N. Y. 166, 172, 36 N. E. 1. Inquiry into the facts and circumstances by examination of two cred- ible witnesses, the scrivener, who also was one of the subscribing wit- nesses, and the testatrix's sister, to whom testatrix read the will after it was executed, clearly and distinctly establishes that, at the time of the execution and attestation of the will, the second clause thereof read, "Second, I give and bequeath, subject to said life estate, to Mrs. Lillian Roome and Miss May A. Husted, of Washington, D. C, each, the sum of five thousand (5,000) dollars;" and that thereafter the tes- tatrix altered such second clause by erasing the words "and Miss May A. Husted" and the word "each." The testatrix could not by such erasure alter her will. It is pro- vided by 2 Rev. St. (1st Ed.) pt. 2, c. 6, tit. 1, § 42, that "No will in writing, nor any part thereof * * * shall be revoked or altered, otherwise than 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." The effect of this statutory provision is to pre- vent a testator from altering his will, otherwise than by an instrument executed in the same manner as required to give it effect as a will. The statute has surrounded the execution of testamentary instruments with certain forms and ceremonies as a shield and protection against fraud and imposition, and the purpose of such precautionary measures might be entirely defeated, if held only to the original execution, leav- ing all subsequent alterations to be made without such protection. The aim of the statute is to close the door against opportunities of fraud and alterations in a will except by the observance of the same formalities as in its execution. In Lovell v. Quitman, 88 N. Y. 377, 42 Am. Rep. 254, it appears that after will was executed, the testatrix obliterated clauses numbered "2nd" and "4th" with intent to revoke the same. Held, that the ob- literation was not effectual for that purpose, and that the will remained in full force and effect as before. In Quinn v. Quinn, 1 Thomp. & C. 437, after will was executed, the testator made alterations by erasing and interlining. Held, that the testator could not by an erasure par- tially revoke his will, and that will should be probated as originally written. In Stevens v. Stevens, 6 Dem. Sur. 262, 3 N. Y. Supp. 131, the testatrix, after the execution of her will, attempted to alter it by having a bequest written on a separate piece of paper and pasted on 256 LAST WILLS AND TESTAMENTS. (Part 1 the will, cutting the latter in two for that purpose. Held, that the at- tempted bequest was ineffectual, and that the original will was not ren- dered invalid. In Matter of Carver's Estate, 3 Misc. Rep. 567, 23 N. Y. Supp. 753, it was held that the effect of an unauthenticated erasure in a will made after execution is to render the change sought to be made inoperative, leaving the will to stand in form and effect as be- fore the alteration was attempted. In Matter of Lang's Will, 9 Misc. Rep. 521, 30 N. Y. Stii)p. 388, it was held that alterations and erasures made after the execution of a will will not invalidate it if the oris:inal intention of the testator can be ascertained. In Matter of Prescott, 4 Redf. Sur. 178, it was held that where a testator, after the execution of his will, makes erasures and interlineations therein, without intend- ing to revoke the will, and without re-executing the same, the will must be admitted to probate as originally executed. In Dyer v. Erv- ing, 2 Dem. Sur. IGO, it was held that after one has signed and pub- lished an instrument, as and for his last will, though he may revoke it by destruction, or annul or modify it by another writing executed with due formalities, he cannot otherwise vary its terms by additions, interlineations, obliterations, or erasures on its face. In Matter of Westbrook's Will, 41 Misc. Rep. 339, 89 N. Y. Supp. 8G2, will after execution was altered by cutting out its first subdivision and fastening together the remaining parts; the piece cut out could not be found. The scrivener who was also one of the subscribing witnesses testified as to the missing clause, which the court held was sufficient proof of that portion and admitted will to probate as originally exeaited. It being the duty of the surrogate to admit a will to probate as ex- ecuted, and to disregard alterations made without formalities pre- scribed by statute, it necessarily follows that the Surrogate has power to take proof of the provisions of the instrument before alteration. A decree will be entered admitting will to probate as originally written and executed. In re GOODS OF BR./VSTER. (ITiKh Court of Ju.stlce, Probate Dlvlslou. [18901 P. 36.) Motion on behalf of the administrator with the will annexed of Thomas Brasier. late of Castle Cottage, near Gatacrc, in the pari.sh of Claverlcy, Shropshire, who died on January 9, 189:. that certain erasures and alterations in the will might be filled up by the restora- tion of names alleged to have been originally written therein. The will consisted of three testamentary documents, the first pre- pared by a solicitor and dated March 27, 1874, appointing executors and leaving real and personal property among the testator's wife Han- nah and his three sons, Daniel, Charles, and Thomas Ash Brasier, and constitnting his wife residuary legatee; the second, a codicil dated December 24, 1881. appointing other executors; the third, a holograph Ch. 7) THE REVOCATION OF WILLS. 257 will dated June 4, 1884, and appointing executors from the probate of which the following is an extract: "I give and bequeath to my son Charles Brasier the house and stable and all the lands at the Broad Lanes for him and his heirs and assigns forever, I give and bequeath to my son, Thomas Ash Brasier the cot- tage and garden and land at the Broad Oak in the parish of Claverley in the county of Salop, I give and bequeath the cottage and garden at the Broad Lanes to my son Brasier for him and his assigns for ever, I give and bequeath to my son Brasier the cottage at Portobello near Wolverhampton in the county of Stafford, and I leave unto Brasier three hundred pounds in money at my de- cease." The blanks contained names which appeared to have been written over erasures. Mr. T. IL Gurrin, an expert in handwriting, deposed that he had examined the will with a powerful magnifying glass, and found that these names, which were respectively "Daniel," "Thomas," and "Thomas," had been altered, and that the name originally written was in each case "Daniel." The surviving attesting witness was unable to state whether the al- terations had been made when the will was executed. All the executors were dead. The testator's wife and three sons survived him, but she and Thomas Ash Brasier had since died. The applicant was Daniel Brasier, who had obtained the consent of Charles Brasier, and that of the widow of Thomas Ash Brasier. It did not appear whether Hannah Brasier or Thomas Ash Brasier had made a will. Priestley, in support of the application. The word "Daniel," being visible to an expert using a magnifying glass, is "apparent" within the meaning of section 21 of the Wills Act, and should be substituted in the blank spaces. GoRELL Barnks, J. An order may be made in the terms of the motion, on proof being given to the registrar that all the persons in- terested in the estate are before the court." 21 "In the present case I am satisfied that the words In question may be read by nn expert, by the means only of plaolnjr an opaque substance, sneh as a piece of brown paper, round the passages In question, vvhcMi the page is held against a window pane. These means appear to me to fall well within those i)onnitted by the authorities T have mentioned. If It Is permissible to use a magnifying glass, I i)resnnio of any strength, and. I should suppose, with or without the additional employment of a lens, by which the light upon the object might be concentrated, which are all artificial means, a fortiori, as it seems to me. is it allowable to place a piece of brown paper round an object on which It is desired to discern writing. That is not to resort to artificial means at all. The rays from the object are not deflected, and there is no concentration of light upon it. All that is done is to exclude su- perfluous light, and the action of thus using a piece of paper api)ears to me not to diller in principle from the action of a man who shades his eyes in Bunshiue to look at a landscape, or of a man who forms his hand into a tube Cost. Wills— 17 258 LAST WILLS AND TESTAMENTS. (Part 1 In re GOODS OF SAVAGE. (Court of Probate, 1870. L. R. 2 P. & D. 78.) John Savage, late of Beaufort Buildings, Bath, died on the 9th of January, ISTO, leaving a duly executed testamentary paper in the following terms : "This is a codicil to my will. After the death of my dear wife, save and except the Colly estate, containing 300 acres more or less, I give all the land I have in the parish of Tetbury, to my son William, ab- solutely, and I also give to my son William the Vale of Neath De- benture' Stock, value £1000, to cover the bond I have given to Robert Holdsworth and Francis Savage, my son, as trustees of his marriage settlement, for securing the sum of £600 and interest. Witness my hand this 2nd day of August, 1869, at Mappowder, Dorsetshire. "Signed by the said John Savage as a codicil to this will, in the presence of us, etc. James WiUiam James, farmer, Mappowder; Charles Giles, groom, Mappowder." The following facts were disclosed in the affidavits : On the 2d of August, 1869, the deceased being then at Mappowder, in Dorsetshire, handed to his son. Rev. William Savage, a sealed envelope, and told him to keep it. Rev. W. Savage retained possession of the envelope until the testator's death, and it was then opened, and the codicil was the better to enable him to see a picture. The argument addressed to me agiin';t this view turns upon what, I think, Is a mistaken interpretation of the words 'on the face of the instrument,' employed in the judgments from which I have quoted. It is said that, in this case, the words in question are not 'apparent' on the face of the instrument, but are made apparent only by transmission of light through the back of the document, and by the words being exhibited against that light. But I do not think that in using the words 'on the face of the instrument' the judges, who have employed them, intended to draw anv distinction between seeing the front of the document,^ with no light liehind it, and seeing the document with light transmitted through it. They were drawing a distinction between what could be seen to be the contents or effect of the instrument, as against what could be Inferred to be its language from extrinsic evidence. To some extent, the use of the nhrase appears to me metaphorical, much as one says that a pleading Is good or bad on the face of it. I am by no means sure, however, that even In the strictest sense of the words the writing In question is not apjiarent 'on the face of the Instrument.' when it is read In the way In which it can be read in this case. The watermark on foolscap, though generally illegible, If the paper be laid on a table, becomes clear when the paper is held up to the light. It appears to me that in that case the words or date of the water- mark are not only apparent, but apparent on the face of the paper. When ftn illuminated clock is seen at night, I think that the hands and figures are npparenr, and apparent on the face of the clock. Can it be said that, on the moment of the clock lieing limited, they cease to be apparent on its face, and l)ecome apparent on soniotlung else, or on nothing? Hut even if tlie writing in question can in tliis case properly l)e said not to be 'apparent on the face of tlie instrument.' I must remark that the act of Parliament it- self si)eaks of words being 'api)arent,' and that to insist on their being ap- parent 'on the face of the instrument,' in the sense sought to bo attributed to the phrase, is to put a gloss on the language of the act" Ffinch v. Combe, 11894] P. 191, 202-203. Ch. 7) THE REVOCATION OF WILLS. 259 found in it. No will or other codicil could be found, but there was an unexecuted testamentary paper dated in the year 1869, In December, 1869, the testator shewed a rough draft of a will to another son, Fran- cis Savage, who asked what he had done with the original will, and he replied, "To tell you the truth, I have burnt it." There was no other evidence as to the existence of a will. Pritchard moved for a grant of administration, with the codicil annexed, to Francis Savage, the son and one of the next of kin of the deceased. Lord Penzance. I think the grant ought to be made. The ques- tion involved in this case was raised in Black v. Jobling, Law Rep. 1 P. & D. 685, and the court there reviewed the previous decisions upon it. Before the passing of the Wills Act, the principle was that the codicil fell to the ground with the will when the will was revoked, but that if it could be established that the testator intended the codicil to stand by itself, notwithstanding the revocation of the will, then the court would give effect to the codicil. At that time the court entered largely into the question of what testamentary papers constituted the will of the testator, quite independent of the question of their signa- ture by the testator. But then the Wills Act was passed, which ex- pressly enacted (section 20) that "no will or codicil or any part there- of, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in the manner hereinbefore required, or by some writing declaring an intention to revoke the same, * * * or by the burning, tearing, or otherwise destroying the same by the testator with the intention of revoking the same." The court cannot, in the teeth of the language of that section, lay down the proposition that a codicil is revoked by the mere fact of the revocation of the will. If this had been the first case in which the question had arisen after the statute, I should have entertained no doubt that the statute governed it, and that the codicil not having been revoked by any of the modes indi- cated by the statute, it was entitled to probate. But there have been some decisions on this subject which, as I pointed out in Black v. Jobling, Law Rep. 1 P. & D. 685, are hardly satisfactory. There are two decisions in Notes of Cases, in which the question was raised : In the Goods of Halliwell, 4 N. of C. 400, 401, and Clogstoun v. Wallcott, 5 N. of C. 623, 625. In the first case, Sir H. J. Fust said : "The question is, as the will is not forthcoming, what is to be done with the codicil? Now the presumption would be that the v/ill was destroyed by the deceased, supposing it has not been lost or overlooked ; and in that case the codicil would, upon the general principle, fall to the ground with the will." The court there seems to have dealt with the matter quite independently of the words of the statute. In the second case there is this passage in Sir H. J. Fust's judgment: "Under the old law the effect of destroying a will was, by presumption, to defeat the operation of the codicils to the will; by the 260 . LAST WILLS AND TESTAMENTS. (Part 1 present law, there must be an intention to destroy." This passage is certainly hardly satisfactory, because the statute says nothing about an intention to destroy, but that the paper shall not be revoked unless it is actually destroyed. When the matter came before this court in Grimwood v. Cozens, 2 Sw. & Tr. 364, 368, Sir C. Creswell said : "I think it has been established by the cases cited at the bar, that previous to the passing of 1 Vict. c. 26, a codicil was prima facie dependent on the will, and that the destruction of the latter was an implied revoca- tion of the former; and moreover, that Sir H. J. Fust was of opin- ion that no alteration >of this principle was made by the passing of the statute." That is certainly not what Sir H. J. Fust said. He said there was an alteration made by the statute, and the alteration consisted in this, that the statute made it necessary to establish an intention to destroy. It seems to me that the matter was not properly considered in those cases. I said as much in Black v. Jobling. Law Rep. 1 P. & D. 685, but on looking at the case again, it occurred to me that the meaning of the court had not, perhaps, been made sufficiently clear. The result is that, in my judgment, the words of this statute are imperative, and that the decisions to which I have referred, since the passing of the statute, do not appear to have proceeded on a consideration of the effect of those imperative words. In this case the testator having left behind him a properly executed testamentary paper, which no doubt is in the form of a codicil, that paper must be admitted to probate, un- lesp it is revoked in some manner indicated by the statute. If a tes- tator destroys his will, and does not destroy his codicil, it appears to me that his intention probably is not to revoke the codicil ; but I pro- ceed not on the ground of intention but on the words of the statute. I hold that when a testator has once executed a testamentary paper, that paper will remain in force unless revoked in the particular man- ner named in the statute. Motion granted.** 22 See Gardiner v. Courthope, L. R. 12 P. D. 14 (1886). But see Susrden v. Lord St. Leonards, L. R. 1 P. D. 154, 205-206 (1876) ; Pepper's Estate, 148 Pa. 5, 23 Atl. 1039 (1892). In the la.st case the court said: "It is possible that cases may arise where a codicil could be pi-obated separate from the will. But it would be necessary to show that the testator intended it to oper- ate separately from the will." In Managle v. Parker (N. H.) 71 Atl. 637 (1908), it Is held that where a will is executed in duplicate it is not revoked by the mere destruction by testator of the copy In his possession, if he understands that the other copy is left in force. That accords with the rule that only one of exact dupli- cates need be probated. Grossman v. Grossman, 95 N. Y. 145 (1884). ^^' ^ AVi f- ^^^ REVOCATION OF WILLS. 261 In re GOODS OF BLECKLEY. (High Court of Justice, Probate Division, 1883. L. R. 8 P. D. 169.) Thomas Macdougall Bleckley, M. D., C. B., late a brigade surgeon in Her Majesty's army, deceased, died on the 33d of November, leav- ing a widow and infant children. The deceased had made a will dated the 29th of December, 1875, by which after appointing executors and giving certain specific leg- acies, he bequeathed his property to trustees in trust for his wife for life, and after her death for the children of the marriage. He also made a codicil dated the 13th of May, 1880, by which he appointed a different executor, and in all other respects confirmed his will." The codicil was written at the foot of the will and upon the same sheet of paper. In October, 1882, he had directed another will to be prepared, but it never was executed, and on the 18th of that month he revoked the will by cutting off his signature thereto, but did not in any way muti- late the codicil. It appeared, however, from the affidavit, that the de- ceased believed that by destroying the will he had also destroyed the codicil, and on his death bed he told his wife that he would die in- testate, and gave her directions accordingly. Bayford moved for letters of administration as in the case of in- testacy. Sir J. Hannen, President. The question whether the deceased meant to revoke this codicil depends upon the intention to be gathered from the circumstances of the case, and they satisfy me that he meant to revoke both the will and codicil. Motion granted.*' 23 See In re Brookman, 11 Misc. Rep. 675, 83 N. Y. Supp. 575 (1895). "If a will, whether written on one sheet of paper or several sheets, be torn up by the testator, or thrown into the fire, then it is manifest that the act of de- struction is directed against the whole instrument, though only a part be destroyed, and that part a codicil only ; but if the testator cancels or ob- literates a particular clause, or destroys one of the sheets, retaining and preserving the rest, then his purpose to destroy a part only is equally clear, and the sole question is as to the validity and effect of what remains un- eradicated; a question which may occur as to the whole residue of the in- strument, or (as in Sutton v. Sutton, Cowp. 812; Larkins v. Larkins, 3 Bos. & Pul. 16; Short v. Short, 4 East, 419) as to the residue of a particular clause. In the case before us, it was physically impossible that the act of destruction in question, the burning of the codicil, could have been directed against the will, inasmuch as the will was not present, but in a different custody. And yet the court instructed the jury, that if the testator intended, at the time of destroying the codicil, thereby to revoke the will, in that case the destruction of the codicil was a revocation of both the will and the codi- cil. If this be correct, it must be either because a codicil is so essential a part of a will that its revocation necessarily involves the revocation of the will (a ground too palpably wrong to require discussion, and not assumed by the appellees' counsel, nor by the circuit court) ; or because the destruction of a codicil, without any the slightest destruction of the will, or any attempt to destroy it, or even an intent to destroy it, must have the effect of revok- ing the will, if so intended by the testator. This last proposition, it seems to me, requires but little consideration after what has been already said. 262 LAST WILLS AND TESTAMENTS. (Part 1 HOWARD et al. v. HUNTER. (Supreme Court of Georgia, 1902. 115 Ga. 357, 41 S. E. 638, 90 Am. St Rep. 121.) Cobb, J, A paper purporting to be the last will of J. W. Howard Avas propounded for probate by the nominated executor, and certain persons, describing themselves as the heirs at law of Howard, filed their caveat objecting to the probate of the paper as a will upon the ground that, after the paper was executed, Howard revoked the same, and that, therefore, it is not his last will. The case was carried by appeal to the superior court, and at the trial in that court the judge directed a verdict in favor of the propounder. The case is here upon a bill of exceptions filed by the caveators, complaining that the court erred in refusing to grant them a new trial. It appears from the evidence that the paper propounded as a will was executed with all the formalities required by law for the execu- tion of wills. When offered in evidence, it was objected to on the To place it in the strongest light for the appellees, let us suppose that the testator, at the time of burning the codicil, expressly declared that he did it with intent thereby to revoke the will. Could it have that effect? The will itself was in no wise canceled or destroyed, but remained perfect and entire, indestructible and intangible by the act in question. Then is it not obvious, that if revoked, it must have been by the sole efficacy of the testa- tor's parol declaration, directly in the teeth of the statute? The argument of the appellees' counsel is, that the question of revocation is in some degree a question of intention, and the act of cancellation or destruction an equivo- cal act, which must be done with an intention to revoke, and therefore that, though a partial cancellation or destruction is, prima facie, a partial revoca- tion, yet by the intent of the party, it may be extended to a total revocation. The premises are true, but do not warrant the conclusion. The intent to revoke must concur with the act of revocation, but cannot go beyond it, being limited by law to the act itself. We must not confound the intent to do the phvsical act of cancellation or destruction, with the intent to produce thereby the legal effect of revocation. When the intent to do the physical act concurs with the act itself, it then becomes an act of revocation; and when the intent to revoke concurs with the act of revocation, it then be- comes a legal revocation. When the concurring physical act and intent to do it are partial only, we have merely a partial act of revocation, and, as regards that act. the testator designs to do no more; and thus the question Is presented, whether a partial act of revocation can accomplish a total rev- or-ation? a question which is answered by merely stating it. In this view of the sul).iect, it avails the learned counsel nothing to prove, from reason or authority, that a codicil is to be taken as a part of the will ; for still it is a case of partial revocation. The argument is, however, stronger against total revocation, where the act of cancellation or destruction is applied to tlie codicil, than where it is applied to a part only of the will ; for the part of the will canceled or obliterated may be essential to the validity of the rest, which can never be as regards the codicil relatively to the will. The codicil is a part of the will for construction and testamentary disposition, but not for execution, nor for revocation, when that is applied to the codicil. It Is a branch not essential to the existence of the tree, but which can have itself no distinct vitality. In my opinion, therefore, the instruction in ques- tion violates both the letter and the spirit of the statute, and is fraught with all the evils of parol revocations." Baldwin, J., in Malone's Adm'r v. Hobbs, 1 Rob. (Va.) 340, 381-3S3. 39 Am. Dec. 2G3, 26G-268 (1842). Ch. 7) THE REVOCATION OF WILLS. 263 ground that it appeared from the paper itself that as a will it had been revoked by the testator, this objection being baaed on the fol- lowing state of facts : The will was written on three of the pages of a double sheet of legal cap paper, and signed on the third page. The attesting clause signed by the witnesses was near the close of the last page, the name of the last witness being on the last fold of the paper when the same was folded up. Across the back of the paper, on the last page, and over this last fold, were these words: "This will is made void by one of more recent date. J. W. Howard," Had this part of the paper been torn off as folded, the name of one of the witnesses to the will would have been torn from the paper. Did this entry upon the will have the effect to revoke the same? The Code declares that express revocation by written instrument must be executed with the same formality and attested by the same number of witnesses as are requisite for the execution of a will. Civ. Code, § 3342. It is apparent, therefore, that the entry upon the will cannot have the effect of an express written revocation, and this was prac- tically conceded by counsel for the plaintiffs in error. It was con- tended that, although the entry would fail as a written revocation, it would nevertheless operate as a revocation, for the reason that it amounted to a cancellation of the will. A will may be revoked by destruction or obliteration done by the testator or by his direction with the intention to revoke, and an intention to revoke will be pre- sumed from the cancellation or obHteration of a material portion of the will. Civ. Code, § 3343. ' In order for an obliteration or cancellation to be effective as a rev- ocation, it is necessary that the obliteration or cancellation should be upon the will itself, and be of such a character as to indicate clearly that it is the intention of the testator that the paper should be no longer operative as a will. While the mere obliteration or cancellation of an immaterial part of the paper — such as the seal — will not, under the law of this state, raise any presumption of an intention to revoke, if any material part of the will is obliterated or marked, or words in- dicating an intention to revoke written across the same, a presumption of revocation will arise, and the instrument will be said to have been revoked as a will by cancellation. If, however, the paper be intact, and no material part of the same be obliterated, written across, or canceled in any way, the mere fact that there may appear words on some portion of the paper upon which the will is written which would indicate an intention to revoke will not have the effect of revoking the will when the words are not written in such a way as to have the effect of obliterating or canceling or destroying any words of the will itself. A will may be revoked by a writing, or a will may be revoked by a cancellation. . In each case an intention to revoke is necessary to- a complete revocation. But, even though the intention to revoke be present, a revocation will not result unless one of the methods prescribed in the statute is 2G4 LAST WILLS AND TESTAMENTS. (Part 1 pursued. Even though there be an intention to revoke by cancella- tion, and this intention be plainly apparent, a revocation vi^ill still not result unless some material portion of the will is obliterated or can- celed. And so, if there be an intention to revoke by written instru- ment, the will will not be revoked unless the writing be signed and at- tested in the manner provided for the execution of a will itself. In the present case it is manifest that the testator had the intention to revoke. This intention was to revoke by written instrument, and the revocation fails for the reason that the writing was not signed in the presence of three witnesses in the manner provided in the statute. The writing cannot operate as a revocation by cancellation for the reason that no material portion of the will is canceled or obliterated. We think this conclusion is demanded by the provisions of our Code. The provisions of the Code on the subject of revocation of wills are substantially the same as those of the English statute of frauds. In the case of Ladd's Will, 60 Wis. 187, 18 N. W. 734, 50 Am. Rep. 355, it was held under a statute which contained provisions very similar to those in our Code on the subject of revocation of wills by written instrument and cancellation, that, where a will was written on the first page of a double sheet of paper, and the testatrix wrote upon the fourth page of the sheet the words, "I revoke this will," signing and dating the same, but such writing was not attested, or subscribed by witnesses, the words did not take effect as a written revocation, nor did the same amount to a cancellation of the will. The conclusion just stated was reached in that case after an exhaustive examination of authorities, which are collected together in the opinion of Mr. Justice Cassoday. In Lewis v. Lewis, 2 Watts & S. (Pa.) 455, it was held that the word "Obsolete," written by a testator on the margin of his will, but not signed in the manner provided in the statute of Pennsylvania, did not operate as an express revocation of the will, nor amount to a can- cellation of the same. In the case of Warner v. Warner's Estate. 37 Vt. 35G, it was held that, where a testator wrote his will mostly upon one side of a half sheet of foolscap paper, the signature and attesta- tion clause being upon the other side of the same paper near the top, and two years afterwards wrote below all the writing, and near the middle of the sheet, "This will is hereby canceled and annulled in full this 15th day of March, 1859," this amounted to a revocation of the will by canceling. The ruling made in that case was said by Mr. Jus- tice Cassoday, in the opinion in the case above referred to, to be "in opposition to the principles maintained by some of the best adjudicated cases," and attention was called to the fact that that decision was con- demned by one of the ablest text writers on the subject of wills. See 1 Redf. Wills (^th Ed.) *318. In the case of Semmes v. Semmes, 7 Har. & J. 388, which is some- times cited as authority for the proposition that written entry upon a will may have the effect to revoke the same as by cancellation, it ap- Ch. 7) THE REVOCATION OF WILLS. 265 peared that there was not only a written entry upon the will indicating an intention to revoke, but a pen had been drawn across the signature of the testator and the names of the subscribing witnesses, which, of course, would have the effect of canceling the will, independently of the entry upon the paper. As to the effect of drawing Hnes with a pen across words in a will, see In re Kirkpatrick's Will, 22 N. J. Eq. 463 ; Glass v. Scott, 14 Colo. App. 377, 60 Pac. 186. In the case of Evans' Appeal, 58 Pa. 238, where it was held that a will was canceled, in addition to the word "Canceled" having been written upon the back of the will, the signature of the testator to a codicil was crossed out, and the word "Canceled" written under it; the signature of the testator appeared in two places in the original will, and one of these was crossed out by a line drawn through it and the date written under it; and the will itself was torn in two places. In Witter V. Mott, 2 Conn. 67, it was held that words expressive of an intention to revoke, written by a testator on the back of his will, and signed, but not attested, by three witnesses, operated as an express revocation of the will. There was, however, no statute in Connecticut requiring written revocations of wills to be signed in the presence of three witnesses. This case, of course, furnishes no authority, in view of our statute, for holding the entry on the will in the present case to be an express revocation in writing. We have called attention to the cases from Vermont, Maryland, and Pennsylvania for the reason that the two former were relied on by counsel for the plaintiff in error in the present case, and the latter is sometimes cited as authority for the proposition that there may be a cancellation of a will by an entry to that effect upon the paper, al- though such entry did not have the effect of obliterating or canceling any material part of the will. The two latter cases are clearly dis- tinguishable from the present case for the reasons above stated. The Vermont case supports the contentions of counsel, but that case is not, in our opinion, sound, and, as has been shown above, it has met with adverse criticism at the hands of a learned text-writer, ias well as at the hands of a jurist of undoubted learning and ability. See, also, upon the subject of revocation of wills by cancellation. Page, Wills, §§ 244-249; Schouler, Wills (3d Ed.) § 419 et seq.; 1 Redf. Wills (4th Ed.) *318 et seq.; 1 Underh. Wills, §.228 et seq.; Pritch. Wills, § 262; Beach, Wills, § 55 ; 1 Jarm. Wills (6th Am. Ed. Big.) *113 et seq. Error is assigned upon the refusal of the judge to allow a witness to testify that a few days before the death of the testator he had arranged with him and two other witnesses to meet the testator at an appointed time and place for the purpose of witnessing the execu- tion of a will, and in refusing to admit in evidence a paper purport- ing to be a will of J. W. Howard, which was unsigned. There was no error in either of the rulings complained of. The only purpose in introducing this evidence was to show an intention on the part of 266 LAST WILLS AND TESTAMENTS. (Part 1 Howard to revoke the will which was propounded for probate. There was no question as to the fact that Howard had this intention. It was manifest from the entry upon the paper, and the controlling question in the present investigation was whether this intention had been car- ried into effect. The judge did not err in any of the rulings com- plained of, nor in directing a verdict in favor of the propounder. Judgment affirmed.^* OETJEN et al. v. OETJEN. (Supreme Oourt of Georgia, 1902. 115 Ga. 1004, 42 S. B. 387.) Cobb, J. In the case of Howard v. Hunter, 115 Ga. 357, 41 S. E. d38, 9o'Am. St. Rep. 121, this court held that, in order for a written entry upon a will to operate as a revocation thereof, it must have either been attested in the same manner and with the same formality as is required for the execution of a will, or the entry must have been written upon the will in such a manner as to obliterate or cancel some material portion of the will. The facts of the present case are almost identical with those of the case just referred to, the only difference being that one word of the entry in the present case was written across one word in the last line of the will. This word was in a sentence which stated merely that a word in the will had been changed before signing. It thus appears that no material portion of the will was ob- literated, even if the mere writing across a word in a will, leaving the same perfectly legible, could be said to be an obliteration or cancella- tion, within the meaning of the statute which provides that a will may be revoked by canceling some material portion thereof. The case is, upon its facts, absolutely controlled by the decision in Howard v. Hunter. Judgment affirmed. In re GOODS OF WOODWARD. (Court of Probate, 1871. L. R. 2 P. & D. 20G.) Lord Penzance.^'' I think in this case probate ought to go. On the death of the testator a will was found in his custody, and duly executed; and the question is, whether it was ever revoked. The only evidence of the matter is contained in the fact that when found 24 "It seems to be generally heUl that cancellation, obliteration, or erasure made after the execution of a will, which does not in fact destroy some por- tion of the material substance of the will, does not constitute a revocation thereof The words written on the blank margin of this will do not touch any part of the will proper."' Brown. J. (dictum), in In re Shelton's Will, 143 N C 21S, T)-i S. E. 705 (lOOG). See, also, Lewis v. I^wis, 2 Watts & S. (Pa.) 455 (1^1); Matter of Akers, 74 App. Div. 401, 77 N. Y. Supp. 043 (1902). 2 6 The statement of facts Is omitted. Ch, 7) THE REVOCATION OF WILLS. . 267 seven or eight lines at the beginning of the document had been par- tially cut and partially torn off. The point for my decision is, whether in that state of things, without any other circumstances tending to shew that the testator intended to i^ev'oke his will, a revocation has been effected. By 20th section (1 Vict. c. 26) no will or codicil, or any part thereof, shall be revoked otherwise than by marriage, or by another will, codicil, or writing duly executed, or by the burning, tear- ing, or otherwise destroying the same by the testator or by some per- son in his presence and by his direction, with the intention of revoking the same. Here the will was duly executed, and there is no evidence of an intention to revoke it, unless such an intention can be gathered from the fact that the first lines of the will were destroyed. The case of Clarke v. Scripps, 2 Rob. Ecc. 563, seems to be most in point. That was a very careful judgment of Sir J. Dodson, in which he investigated all the previous decisions, and I quite coincide in the reasons he gives for his judgment. He says : "(Dut of the mutilated state of this instrument arises the question, not very easy of solu- tion, namely, whether the will is to be considered revoked in toto, or in part only. Upon this enactment (1 Vict. c. 26, § 20) it is obvious, first, that a part only of a will may be revoked in the manner described ; in other words, that the whole will is not necessarily revoked by the destruction of a part; nevertheless, I do not by any means intend to say that the destruction of a part may not under certain circum- stances operate as a revocation of the entire will. Secondly, it is to be observed that the burning, tearing, or otherwise destroying the in- strument must be done with the intention to revoke. It is not the mere manual operation of tearing the instrument, or the act of throw- ing it into a fire, or of destroying it by other means, which will satisfy the requisites of the law; the act must be accompanied with the in- tention to revoke; there must be the animus as well as the act, both must concur in order to constitute a legal revocation. It is the animus also which must govern the extent and measure of operation to be at- tributed to the act, and determine whether the act shall effect the revo- cation of the whole instrument, or only of some and what portion thereof. Now the intention of a testator to revoke wholly or in part may, I conceive, be proved, first, by evidence of the expressed dec- laration of a testator, especially if such declaration was contempora- neous with the act. * * * Secondly, the intention may, in the absence of any express declaration, be inferred from the nature and extent of the act done by a testator, i. e., it may be inferred from the state and condition to which the instrument has been reduced by the act. From the face of the paper itself it may be inferred, either he did intend to destroy it altogether or did not." I think that is a very good way of regarding the question, for it is obvious that the mutilation may be of such a part and in such a man- ner as to afford evidence that the deceased did not intend the docu- ment any longer to operate as his will. If, for instance, he should 268 LAST WILLS AND TESTAMENTS. (Part 1 tear off the seal or his own signature? Applying the reasoning to the present case, I have come to the conclusion that, in the absence of any evidence to the contrary, the mere cutting off eight lines at the beginning of the document does not shew an intention to revoke the whole will. It may be said that the object of tearing off the first part was to destroy l.ie statement that it was the last will and testa- ment of the deceased, which is a material averment, but the force of that observation depends very much, if not entirely, upon the consid- eration whether there was anything else of moment or importance in that part of the will destroyed, which the testator might have wished to revoke. It is probable in this case that there was. It seems prob- able that the part torn off did contain something besides the mere state- ment that the document was the last will and testament of the de- ceased, and it might very well have been that the deceased tore it off in order to get rid of that. I consider, under these circumstances, that the will is not revoked, and must be admitted to probate.^** BIGELOW V. GILLOTT. (Supreme Judicial Court of Massachusetts, 1877. 123 Mass. 102, 25 Am. Rep. 32.) Appeal from a decree of the probate court for the county of Suffolk, allowing a certain instrument, with the exception of the "sixth" and "thirteenth" clauses thereof, as the last will and testament of Thomas Liversidge, deceased. The will of the testator contained the following clauses : "Sixth. I give to my executors the sum of six thousand pounds sterling, in trust, to be used and appropriated by them for the purpose of paying the debts which my father, Stephen Liversidge, owed in the year eighteen hundred and twenty-nine, said payment to be made to the legal representatives of the persons who were his creditors at the time: and it is my will and I hereby direct, that the principal only of said debts shall be paid, excluding interest; the sum of six thousand pounds being, in my opinion, sufficient for this purpose. If any por- tion of said six thousand pounds shall remain after payment of said debts, such remainder is to belong to the residue of my estate, and to be disposed of accordingly by said trustees." "Thirteenth. I give and bequeath to John Shufeldt, of Marshticld, 26 See Sellards v. Kirby (Kan.) 108 Pac. 73 (1010) But sf Jf^"/j;;^ T" rw>mr(l riOO'>1 P 243 In Ohio, where partial revocation Is not permittea, it has been' held that the tearln;^ of p.-,rt of a will with the Intent *« revoke that part only, and not the whole will, do.s not revoke the will. Coph m v. Co.h- lin. 70 Ohio St. 71. 85 N. E. lOnS (1008) Compare Lovoll v^ Q"\t^^^°' ^-^^^^ Y 377. 42 Am. Rep. 2,^)4 (1882), which held that under the Now lork statute no obliteration could be effecHve unless it altogether destroyed thf whole will. See, aLso. In re Kissaui's Will. .wite. p. 254. But see In re Curtis Will. 135 App. Div. 745. 119 N. Y. Supp. 1004 (1009). Ch. 7) THE REVOCATION OF WILLS. 269 in the county of Plymouth, the use and improvement of the estate and farm belonging to me in said Marshfield, during the term of his natural hfe, on the condition that said Shufeldt shall pay all taxes and cost o insurance appertaining to said estate, and shall continue to live thereon and occupy and cultivate the estate." [The nineteenth clause gave his homestead estate to trustees to maintain a charitable institution.] "Tvi^entieth. I give, bequeath and devise all the rest, residue and remainder of my estate of every description, of which I shall die seised and possessed, to said Eleazer J. Bispham, Frederic A. Welling- ton and George Tyler Bigelow, absolutely and forever, in trust, never- theless, to be appropriated, used and applied for the maintenance and support of the institution named and described in the last preceding clause of this will." The appellants, the heirs at law of the testator, filed certain reasons of appeal, the following being the only one relied on in this court : "That, it having clearly appeared by the evidence before the pro- bate court that the obliterations in said paper writing were made sub- sequently to the execution thereof, as the last will and testament of the alleged testator, and that no re-execution took place after said obliterations were made, the probate court, as it decreed the probate of the will, excepting the sixth and thirteenth clauses, should also have decreed that the portion of the estate originally disposed of under said sixth and thirteenth clauses, remained undisposed of by the testator a1 the time of his death, and passed to his heirs at law." Hearing before Colt, J., who found that the will was duly executed on or about the time of its date, in the manner required by law, by Thomas Liversidge, as and for his last will and testament, and that he was at the time of executing the same of full age and of sound mind ; that in the will, as presented for probate, ink lines appeared, drawn probably with a pen, through and across each and every word consti- tuting the clauses of the will, numbered respectively "sixth" and "thir- teenth," leaving the words, however, legible : 'hat the lines were drawn across the words by Liversidge in his lifetime, after the execution of the will by him as aforesaid; and, on all the evidence bearing upon the intention of the testator in making these erasures, and upon the inspec- tion of the original will, found, if competent so to find, that the era- sures were made by the testator with the intention of revoking the sixth and thirteenth clauses of his will, but with no intention of re- voking or defeating the other provisions of his will. The question whether the evidence before him (which was annexed to the report), together with the original will, justified this finding, as well as the question, what effect those acts of the testator might have upon the will and the probate of it, were reserved for the considera- tion of the full court. Morton, J. The presiding justice who heard this case has found as ■facts, that the testator erased the sixth and thirteenth clauses of his 270 LAST WILLS AND TESTAMENTS. • (Part 1 will after its execution, and that such erasures were made with the in- tention of revoking the said clauses, but with no intention of revok- ing or defeating the other provisions of the will. These findings were clearly justified by the evidence. We need not consider the evidence in detail, as the appellants do not contend that the findings were erro- neous, the only questions raised by them being as to the legal effect of such erasures. The statute provides that "no will shall be revoked, unless by burn- ing, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction ; or by some other will, codicil or writing, signed, attested and subscribed, in the manner provided for making a will." Gen. St. c. 93, § 11. This provision is a re-enactment of Rev. St. c. 62, § 9, with merely unimportant verbal changes. The Revised Stat- utes made material changes in the law as to wills, doing away with the distinctions between wills affecting real, and wills affecting personal, property,- and putting all upon the same footing. St. 1783, c. 24, § 2, permitted the revocation of a devise of land, "or any clause thereof," in the manner pointed out in the statute, which was the same manner now provided for the revocation of a will. We see nothing to indicate that the Legislature, in the revision of 1836, intended to change the law in this respect and to limit the power of revocation to a revocation of the whole will. The power to revoke a will includes the power to revoke any part of it. If we were to hold that under this provision a testator could not revoke a part of a will by cancelling or obliterating it, we should be obliged by the same rule of construction to hold that he could not revoke a part by a codicil, which would be against the uniform practice in this commonwealth, sanctioned by numerous decisions. • We are therefore of opinion that, in this case, the cancellation by the testator of the sixth and thirteenth clauses of his will, by drawing lines through them, with the intention of revoking them, was a legal revoca- tion of those clauses. The remaining question is as to the effect of this revocation upon the property affected by the revoked clauses. The appellants contend that the property devised and bequeathed therein is to be treated as intestate property, which goes to the heirs at law or distributees ; and the executors and trustees contend that it passes to them under the residuary clause of the will. It is a clearly settled rule of law that, in a will of personal property, a general residuary bequest carries to the residuary legatee all the per- sonal property of the testator which is not otherwise disposed of by the will, including all lapsed legacies and all void legacies. And in this commonwealth, since the passage of the Revised Statutes in 1836, the same rule applies to wills of real estate. Thayer v. Wellington, 9 Allen, 283, 85 Am. Rep. 753, and cases cited. It is true that if a special bequest in a will lapses or fails for any reason, the sum bequeathed Ch. 7) THE REVOCATION OF WILLS. 271 will not pass to the residuary legatee if it appears from the will that it was the intention of the testator to exclude it from the -esiduary clause. In Thayer v. Wellington, ubi supra, the court say : "We take the rule to be that a general residuary clause passes all the estate of the testator not otherwise disposed of, unless it is manifestly contra- dictory to the declared purpose of the testator, as found in other parts of the will. There must be a clear intention that in no event it shall pass to the residuary devisee." In this case, there is nothing to indicate an intention on the part of the testator that the property covered by the revoked clauses should not go to the residuary devisees. The residuary clause is expressed in the broadest terms. "I give, bequeath and devise all the rest, residue and remainder of my estate of every description, of which I shall die seised and possessed." The intention of the testator is clear, to give all his property, not otherwise disposed of by the will, to the trustees named therein, for the support of the charity established by the nine- teenth clause. He revoked the sixth and thirteenth clauses, and pur- posely and intelligently left the other provisions to stand as his will. The only fair inference is that he intended that the property covered by those clauses, and which by his revocation became undisposed of by the other clauses of the will, should fall within the residuary clause, We are of opinion that this case falls within the general rule, and that the property in question passes to the residuary devisees. The argument of the appellants, that this view is in conflict with the provisions of law which require that a will disposing of property should be executed in the presence of three witnesses, is not sound. It is true that the act of revocation need not be done in the presence of wit- nesses ; but such act does not dispose of the property. It is disposed of by the residuary clause, which is executed with all the formalities required in the execution of a testamentary disposition of property. Decree of probate court affirmed.^^ 2T In Swinton v. Bailey, 4 App. Cas. 70 (1878), Lord Penzance expressed the opinion that part of a will may be revoked, even if the effect is to increase the gifts to others who take under the will. The same opinion Is expressed in Collard v. Collard (N. J. Prerog.) 67 Atl. 190 (1907). See, also. Larkins v. Larkins, 3 B. & P. 16 (1802) ; In re Coyte, 50 L. T. (N. S.) 510 (1887) ; In re Frothingham's Will (N. J.) 74 Atl. 471 (1909). But see, contra, Eschbach v. Collins, 61 Ua. 478, 48 Am. Rep. 123 (1881), and ^Miles' Appeal. 68 Conn. 237, 36 Atl. 39, 36 L. R. A. 176 (1896). See, also, Gardner v. Gardiner, 65 N. H. 230, 19 Atl. 651, 8 L. R. A. 383 (1SS9) ; Pringle v. McPherson, 2 Brev. (S. C.) 279, 3 Am. Dec. 713 (1809). In Swinton v. Bailey, supra, the testator reduced a gift to "Elizabeth Ely, her heirs, and assigns forever," from a fee to a life estate by striking out the words "Ely, her heirs, and assigns," and the reduction was upheld. In Esch- bach V. Collins, supra, where the will as originally executed gave life estates to all the sons except two, the testator, by erasing the names of the two, made the will read, in the opinion of a majority of the court, that all the sons should take absolutely, and in consequence the court gave effect to the will as originally written and executed. In Home of the Aged v. Bantz, 107 Md. 543, 69 Atl. 376 (1908), it is held that cancellation of portions of a will does not revoke the whole will, where the remaining parts can stand alone. 272 LAST WILLS AND TESTAMENTS, (Part 1 SECTION 4.— SO-CALLED REVOCATION BY CIRCUM- STANCES DOE d. WHITE v. BARFORD. (Court of King's Bench, 1815. 4 M. & S. 10.) At the trial of this ejectment, before Heath, J., at the last Cam- bridgeshire Assizes, the case was this : The plaintiff claimed under the will of one J. Bonteel, who, being seised in fee in 1791, married, and in 1792 made his will, and devised and is pointed out that Eschbach v. Collins, supra, recognized that a testator may revoke by cancellation one or more clauses in his will without invalidat- ing the rest, "if such revocation does not operate to enlarge the estate of any one who takes under the will, or to change the character of the remain- ing provisions of the instrument." 107 Md. 555, 69 Atl. 379. In Miles' Ap- peal, supra, the refusal of the lower court to give effect to the cancellation of a specific legacy to the increase of the residue was first supported on the ground that the evidence failed to show that the cancellation was by the testatrix or in her presence as required by the statute (substantially the Statute of Pi'auds provision), and then the court went on to say: "It would perhaps be too strict a construction of the statute referred to. if we held that under no circumstances could there exist :i partial revocation of a will or codicil, effected by burning, canceling, tearing or obliteration ; that such rev- ocation must extend to the whole instrument and be operative to revoke the whole, or be without effect. Such a construction has indeed been given to very similar statutory provisions in several other jurisdictions. But prob- ably the weight of authority upon the question is otherwise. The entire sub- ject is most exhaustively and ably treated in a note to the case of Graham v. Burch. 28 Am. St. rU'i>. ol-l. i'.ut. oix the ot'ier oaiid, if we were to declure, following the language of the opinion often cited in Bigelow v. Gillott. 123 Mass. 102 [25 Am. Rep. 32], that the authority to revoke an entire will In- clud(Hi the lesser power to revoke any portion of it only, and to stop there, as the court In Massachusetts does, it seems to us that an inference miirbt be drawn that would extend entirely too far. For, if such conclusion, looking at the statute in question alone, might be drawn, there is another statute ap- pearing upon the same page of the General Statutes, namoly section ,")3S. pro- viding how wills must be executed. If a case arises which is simply and purely one of revocation, section 5;^S will not apply. But if such revocation involves alteration, it certainly must apply. The difference in meaning be- tween the two terms is aptly stated by Mollish, L. J., in Swinton v. Bailey. 45 L. J. Ex. 427, where a testator by his will had devised his real estate to E., 'her heirs and assigns forever.' He subseipiently obliterated these words with pen and ink. The judge said (p-age 429): 'The difference between revocation and al- teration seems to me to be this: if what is done simply takes away what was given before or a part of what was given before, then It is revocation, but if it gives something In adJ, is an able discussion of this matter. In that case the effect of erasures was to enlarge the estates of the devisees from life estates to fees. The court held sucli erasures inoperative under a statute which provided that a will, or any clause thereof, might be revoked by can- cellation. The court said (page 409): 'Tiie will has not been revoked; it has been altered. It cannot be supposed that when the Legislature uses the word "revocation," it is to be construed to mean "mutation." * * * When by the obliteration of certain words a different meaning is imparted there is not Ch. 7) THE RE3V0CATI0N OF WILLS. 273^ the premises in question to his niece, from whom the plaintiff derived title.. J. B. died leaving his wife ensein t. which was unknown to either of them at the time of his death, and afterwards the wife was delivered of a daughter, from whom, as heir at law, the defendants derived title. And the question was, Whether this alteration of circumstances was an implied revocation of the will. The learned judge ruled that it was not, and there \yas a verdict for the plaintiff. And now Blosset, Serjt., moved for a nonsuit. Lord Ellenborough, C. J. The argument seems to be, that be- cause the testator, had he known his situation, ought to have revoked his will, therefore the law will impliedly revoke it. But if it is to be understood that every will* is made upon a tacit condition that it shall stand revoked whenever the testator by the circumstance of the birth a mere revocation. There is something more than the destruction of that which has been antecedently done. There is a transmutation by which a new clause is created. There is another and a distinct testamentary disposition which must be authenticated by the observance of the statutory requirements.' The court gives as an illustration of how fully such a transmutation might be made by mere erasures, this example: Suppose the original words were, 'To my son William I give nothing, and give all my estate to my son John.' The will with no addition could be made to read. 'To my son William I giv« all my estate.' This may seem an extreme illustration, but probably there are few wills made, of any considerable length, in which alterations in meaning, by mere erasure, could not be effected, as objectionable, if not as marked as this. Indeed, without holding that there are none, it seems to us that there are few cases that could arise where the revocation of a portion only of a will, would not operate to alter other portions of it. If an entire clause — meaning by that word one of those distinct and generally numbered subdivisions into which wills are frequently aparted, or an entire unconnected provision mak- ing disposition of property — be erased or canceled, and what was thus dis- posed of becomes intestate, it may be said that there is a revocation, and nothing more. The same thing has been affirmed "by some courts where, in- stead of such Intestacy, the property passes into a prescribed residuum. But this appears to us to be more questionable. The residuary devisee or legatee takes by virtue of the will, defeating the heir, and he takes by force of the alteration what he did not take without it. The mischief seems the same. The distinction is more apparent than the difference. Take the very case before us: There were originally two clauses. One disposed of certain stock ; the other of the balance of the estate. By revoking the first, there ceased to be any residue, unless the estate in its entirety can be so styled. But look at the object of the change. Was it revocation, or was it alteration? One of the brothers of the testatrix procured a copy of the will from another brother who had It in his possession. He was apparently curious until he knew its contents, and dissatisfied when he learned them. He said to his sister, 'By your will you have given my brother Charles' family twenty-four shares of the New York and New Haven Railroad stock, and you have given my brother David and myself eight.' She said 'I won't have it so ; I will scratch it out.' What was this interested brother's motive? To defeat his nieces of their legacies? Or was it rather to increase his own? What would the old lady 'not have so'? That her nieces should be remembered, or that the families of those brothers should be treated unequally? It seems to us the answer is obvious, and that to all just intents and purposes here was not merely revocation, but substitution ; not destruction, but reconstruction ; a 'scratching out' indeed, but one equivalent to a writing in ; the making of a new testamentary disposition, and in a manner not permitted by law — a law passed in the interest of public policy, the wisdom of which such a case a« the present abundantly demonstrates." COST.WILLS— 18 274 LAST WILLS AND TESTAMENTS. (Part 1 of a child becomes morally bound to provide for it, I do not see why the birth of any one of a numerous succession of children would not equally work a revocation. But where are we to stop? Is the rule to vary with every change which constitutes a new situation giving rise to new moral duties on the part of the parent? Marriage, indeed, and the having of children, where both those circumstances have concur- red, has been deemed a presumptive revocation, but it has not been shown that either of them singly is sufficient, I remember a case some years ago of a sailor who made his will in favor of a woman with whom he cohabited, and afterwards went to the West Indies and mar- ried a woman of considerable substance ; and it was held, notwith- standing the hardship of the case, that the will swept away from the widow every shilling of the property; for the birth of a child must necessarily concur in order to constitute an implied revocation. In Doe V. Lancashire, 5 T. R. 49, it was adjudged that marriage and the pregnancy of the wife with the knowledge of the husband, and the subsequent birth of a posthumous child, came within the rule, the same as if the child had been born during the parent's life. In this case it is desired of us to extend the rule a step farther, but I own I am afraid of so doing. Le Blanc, J, Lord Kenyon considered the rule as founded upon a tacit condition annexed to the will, that if the party should marry and have a child it should not take effect. Per Curiam. Rule refused.^® 2 8 On "revocation" of wills by marriage and birth of Issue, see 9 Prob. Rep. Ann. 423, note; 7 Am. & Eng. Ann. Gas. 786, note. But it should be remembered that statutes have been passed giving to children born after a will and not provided for therein certain inheritance rights, even though in most jurisdictions their birth does not revoke the will. In Iowa the birth of a child alone will revoke the will. McCullum v. McKenzie. 26 Iowa, 510 (18GS) ; Negus v. Negus, 46 Iowa, 487, 2G Am. Rep. 157 (1877). The Iowa rule was adopted before there was a statute on the subject. It is now a statutory matter there. Fry v. Fry, 125 Iowa, 424, 101 N. W. 144 (1904). In Re Del Genovese's Will, 56 Misc. Rep. 418, 107 N. Y. Supp. 1033 (1907), affirmed 120 N. Y. Supp. 1121 (1909), it was held that the will of a man was revoked by his marriage and the subsequent birth of issue, although the wife's first husband had the right to have the marriage annulled. A will has been held revoked by a subsequent marriage and birth of a child, although the testator was married to his first wife at the time of making the will. Christopher v. Christopher, Dick. 445 (1771). But see Yerby v. Yerby, 3 Call (Va.) 334 (1802), In Gibbons v. Caunt, 4 Ves, 840, 848 (1799) the Master of the Rolls suggested that a revocation might be held where there was "the birth of children by the first wife after the execution of the will, and after the death of the wife, a subsequent marriage, and no children by that" Ch. 7) THE REVOCATION OF WILLS. 275 TYLER V. TYLER. (Supreme Court of Illinois, 1857. 19 III. 151.) Skinner, J.^" The case shows, that Stephen H. Tyler, and the com- plainant intermarried in this state, in 1842, and here lived as husband and wife until his death in 1855 ; that he died, never having- had a child, and leaving a considerable estate, real and personal, in this state, and that the defendants claim his estate under a will executed in the state of Connecticut, where Tyler then lived, in 1834, which will devises his entire estate to his blood relatives. The material question is whether this will, by the change of condi- tion of the deceased, is revoked. It is essential to a valid will that it be the mind and intention of the maker, in relation to the matters to which it relates, at the time of his death. And an instrument executed in legal form, purporting to be a last will and testament, whenever made, is received as the last will and purpose of the maker, until shown to have been revoked in some of the ways known to the law. Our statute contains substantially the same provisions in relation to revocation of wills, as the English statute of 29 Charles II ; and the courts of that country have uniformly held, that marriage and the birth of a child, effecting a radical change in the condition, relation and duties of one who before had made a will providing for no such contingency or change of condition, by operation of law and presump- tively revoke such will ; but that marriage alone will not raise such presumptive revocation. [Citations omitted.] By the law of descents, both in England and in this country, the child may inherit the parent's estate ; but there the wife is not heir to the husband, while here she, in case there be no child or descendant of a child of the husband, is such heir and may inherit the one-half of his lands. The reason of the law is the essence and soul of the law ; and the reason of the common-law rule existing here by force of our statute, making the wife heir to the husband and the husband heir to the wife, where there is no child or lineal descendant [having gone], the rule should go with it. Where a statute of the mother country or of a sister state is adopted into our law, the rule is that with it is adopted the construction of such statute which, prior to its adoption, uniformly obtained. The wife, ordinarily, where there are no children to provide for, is a far more meritorious object of the husband's bounty than collateral kinsmen, and is presumed to engage more intensely his emotions of interest and affection. It cannot, therefore, be supposed that he would willingly die leaving her disinherited and unprovided for. 2 9 The statement of facts and the concurring opinion of Breese, J., are omitted. 276 LAST WILLS AND TESTAMENTS. (Part 1 We hold that marriage, under our statute making the wife heir to the husband and the husband heir to the wife, where there is no child or descendant of a child, is, in the absence of facts showing an inten- tion to die testate arising subsequent to the marriage, a revocation of a will of the husband, made prior to the marriage, disposing of his en- tire estate without making provision in contemplation of the relations arising out of it. Decree reversed and cause remanded.^" SWAN V. HAMMOND. (Supreme Judicial Court of Massachusetts, 1884. 188 Mass. 45, 52 Am. Rep. 255.) CoLBURN, J. It appears by the record and agreed facts in this case that Susan E. Haven, an unmarried woman, made her will May 20, 1853 ; that she was then possessed of real and personal estate, all of which by her will she devised and bequeathed to her sister, who was named as executrix: that on October 3, 1861, she married Thomas F. Hammond, and lived with him until her death, on January 18, 1883. Her husband had no knowledge of the existence of the will until after 80 See Colcord v. Conroy, 40 Fla. 97, 23 South. 561 (1898) ; In re Teopfer'a Estate, 12 N. M. 372, 78 Pae. 53, 67 L. R. A. 315 (1904) ; Brown v. Scherrer, 5 Colo. App. 2.55, 38 Pac. 427 (1894); Scherrer v. Brown, 21 Colo. 481, 42 Pac. 668 (1895). Compare In re Petridge's Will, 47 Wash. 77, 91 Pac. 634 (1907). But see Hoy v.' Hoy, 93 Miss. 732. 48 South. 903 (1908) ; Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 34 L. R. A. 384, 61 Am. St. Rep. 419 (1896). In Hoy V. Hoy the state statute made the widow an heir, and the court said: "We think there can be no doubt that the decided weight of author- ity inclines to the view that a man's will is not revoked by a subsequent mar- riage without birth of issue. It would protract this opinion to undue length to review in detail the authorities from Florida, Idaho, Illinois, New Mexicx), and Colorado holding to the contrary view. They are criticised in the case of Hulett V. Carey, supra. But one general observation may be made. All of the cases, except Brown v. Scherrer, supra, are decided in states where an unrevoked will would lG.ave the widow without any re^40.->. 58 Atl. 849. 08 L. R. A. 4(;4. Under similar statutes In a number of slates children unintentionally not pro- vided for by will, whether after-bom children or others, take as If the testa- tor bad died intestate. See cases and notes in part II. chapter II, §2, post, on "Pretermitted Heirs." No set sum seems to be required to disinherit a child ■under any of those statutes. Ch. 7) THE REVOCATION OF WILLS. 321 be substantial or merely nominal cannot be known. A will giving even a dollar to each child would be a different will from the one destroyed, and the dollar so given could be demanded by the legatees." It seems to be a hard case, but there is no remedy, without making the bad law which such cases are said to invite. Decree affirmed.*^ DIXON V. SOLICITOR TO THE TREASURY. (High Court of Justice, Probate Division. [1905] P. 42.) Probate Action. The plaintiff, as sole executor, propounded a will dated July 7, 1894, of James Alexander Shaw, who died on February 8, 1904. The deceased had no known relatives, and the Crown, as interested in the event of an intestacy, was made defendant in the action, and pleaded that the deceased mutilated his said will by cutting off there- from, with a pair of scissors, his signature, and by erasing parts of the document with the intention of revoking the same ; that the will was thereby revoked; and that the deceased died intestate. The plaintiff, in reply, denied that the acts alleged in the statement of defense were done (if at all) with the intention to revoke the will ; and, further, that the acts of revocation (if any) were accompanied with an intention, on the part of the deceased, to execute a new will, and were conditional on such new will being executed. It appeared from the evidence adduced at the trial, which was held before Gorell Barnes, J., and a special jury, that the deceased a few .days before his death gave instructions to a solicitor for a new will, and, after sending for the will of 1894, there and then cut oflf his sig- BT "It is said, and indeed it would seem from the testimony, that Ignatius Semmes did not intend to die intestate; but, however that may be, we cannot make a will for him. By the will, which is now attempted to be set up, he had disposed of the whole of his estate to his wife, in trust for the 'use and support of herself, and the benefit, education and sup- port,' of his infant son until he should arrive at the age of twenty-one years, when he bequeathed one-half of his personal property absolutely to his wife; but, she dying, he struck out his own signature and the names of the subscribing witnesses, and made a memorandum at the bot- tom of the will, assigning as a reason for what he had done that his wife's death had rendered it necessary to make another will. If that was not a revocation, it would be found difficult to revoke a will by canceling. In Burtenshaw v. Gilbert, 1 Cowp. 49, which was cited in argument, there were two wills, and after the death of the party, the second will, with a duplicate of the first, which he had kept himself, were foimd together among his papers both canceled ; and it was proved that he had sent for an attor- ney to prepare another will, but lost his senses before it could be done. It was not doubted that the second will was revoked. The only question raised, was whether the revocation of the second will did not set up the uncanceled duplicate of the first, and it was determined that it did not. That case surely cannot be called in aid of this will." Buchanan, C J., in Semmes v Semmes, 7 Har. & J. (Md.) 3S8, 391 (1826). Cost. Wills— 21 322 LAST WILLS AND TESTAMENTS. (Part 1 nature, and he stated, in answer to a remonstrance by the solicitor, that he meant to cancel the will as he was going to make a new one. The deceased further was alleged to have expressed himself to the effect that he understood that the cutting out of a signature from an old will was a necessary preliminary to making a new will. After he had thus mutilated the will, the deceased made a statement to the ef- fect that his sole reason for desiring to make a new will was his de- sire to increase a certain legacy. The instructions then given to the solicitor covered, not merely the increase of that legacy, but other alterations. The solicitor used the mutilated document for embody- ing the deceased's instructions, and on the following day went through it with the deceased, who desired that a draft will should be pre- pared. This was accordingly done, but the deceased died without having executed it. The instructions given by the deceased to the solicitor only covered a portion of the estate which the deceased had to dispose of. GoRELL Barnes, J., having decided to leave the question to the jury, summed up as follows : For the purposes of to-day I have decided to leave the question of fact to you. The plaintiff, being the executor, propounds this will of 1S9J: and proves its due execution. It was a perfectly good will down to the time when the question as to whether it was cancelled or not arose. It arises out of the events of the 6th, 7th, and 8th February, and upon that the Crown says the will -was duly revoked by virtue of the 20th section of the Wills Act, 1837 (1 Vict. c. 26), which, so far as it applies to the present facts, is as fol- lows: "* * * No will or codicil, or any part thereof, shall be re- voked otherwise than * * * by the burning, tearing, or other- wise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same." The 'plaintiff, on the other hand, says that the destruction was not effected with the intention of revoking the will, but with the inten- tion of getting rid of it and putting another will in its place. Look- ing at the will and at the instructions given on February 7th for a fresh will, I do not think it is correct to say that the testator's sole object was to deal with the legacy to one particular lady. It is ob- vious that the testator intended to make a new will, and did not intend that the Crown should take his property. He sent for his solicitor to take his instructions for a new will. The testator there and then cut out his own signature with a pair of scissors. It was just one of those stupid acts without which this court might almost cease to exist. There is no doubt that the testator did what he did because he was making a new will. There is a point in this case which seems to dif- ferentiate it from those reported cases in which the judges were in doubt. If this testator cut out his signature because he thought that he had to cut it out before he could start operations on the fresh will, then he was doing that act as part of the operation of bringing a new will into force; and, if this were so, it follows that he would Ch. 7) THE REVOCATION OF WILLS. 323 not have cut out his signature if he had thought that it would have the effect of making him die intestate. The questions I leave to you are: (1) Whether the testator cut his signature off the will with the in- tention of revoking the will ; or (2) Whether the testator cut his signature off the will with the intention that the will should be revoked conditionally on his ex- ecuting a fresh will. The jury answered the first question in the negative, and the sec- ond question in the affirmative. Robertson asked for judgment for the Crown on that finding. The principle as to destruction of a testamentary document under a mis- taken impression of law or fact has never yet been applied in a case where the document intended to be substituted was nonexistent and had never existed as a valid testamentary document. GoRELL Barnes, J. I pronounce for the will. The costs must of course come out of the estate. The litigation has arisen through the testator's own fault.°' In re GOODS OF McCABE. (Court of Probate, 1873. L. R. 3 P. & D. 94.) Esther Jeremy McCabe, late of Ticehurst, Sussex, spinster, died on the 3d of March, 1873, having made a will dated the 27th of Au- gust, 1863, in which she appointed Robert Jeremy McCabe sole ex- ecutor. The will was found by deceased's sister, Mrs. Laming, after the death of Miss McCabe, in a davenport in Mrs. Laming's house, the property of the deceased. It was in an envelope which had been sealed, but the seal had been broken. The will was entirely in the 5 8 See Goods of Applebee, 1 Hagg. Ecc. 143 (1828); Mclntyre v. Mclntyre, 120 Ga. 67, 47 S. E. 501, 102 Am. St. Rep. 71 (1904). But see Banks v. Banks, 65 Mo. 432 (1877). In Mclntyre v. Mclntyre, supra, the court said: "The doc- trine as we understand it, and are willing to apply it, is this: The mere fact that the testator intended to make a new will, or made one which failed of effect, will not alone, in every case, prevent a cancellation or obliteration of a will from operating as a revocation. If it is clear that the cancellation and the making of the new will were parts of one scheme, and the revocation of the old will was so related to the making of the new as to be dependent upon it, then if the new will be not made, or if made is invalid, the old will, though cancelled, should be given effect, if its contents can be ascertained In any legal way. But if the old will is once revoked — if the act of revocation is completed — as if the will be totally destroyed by burning and the like [with the intent to revoke it at all events?] or If any other act is done which evidences an unmistakable [and unconditional?] intention to revoke, though the will be not totally destroyed, the fact that the testator intended to make a new will, or made one which cannot take effect, counts for nothing. In other words, evidence that the testator intended to make or did actually make a new will, which was inoperative, may throw light on the question of intention to revoke the old one, but it can never revive a will once com- pletely revoked." 120 Ga. 70, 71, 47 S. E. 503, 102 Am. St. Rep. 71. 324 LAST WILLS AND TESTAMENTS. (Part 1 handwriting of the deceased, and contained the following clauses ; "After payment of all the above legacies, I will and bequeath to my sister Caroline Jeremy Luro half of the sum of money remaining un- disposed of, and to my sister Louisa Galsworthy the remaining half of the same sum. * * * To my sister Louisa Jeremy Galsworthy I leave, as a remembrance, the print hanging at present in my bed- room. And the whole of the remainder of my personal effects and property of whatsoever nature, excepting any sum of money which may remain after payment of all the above-mentioned legacies, I leave to my nieces and nepheivs." The words in italics were written on erasures, but the attesting witnesses could give no information or ex- planation whatever in reference to them. Messrs. Chabot and Netherclift were of opinion that the words written under sister Louisa, in the first paragraph, were niece Edith. Mr. Galsworthy, in his affidavit, stated that at the date of the will, the 27th of August, 1863, his wife Louisa Galsworthy was seriously ill, a fact well known to the testatrix, and it was not expected either by her husband, by the testatrix, or any other member of the family, that she would recover; and that he had no doubt that by reason thereof the testatrix believed that any bequest of a share of her prop- erty to her sister would be inoperative, and she determined to give such share to Louisa Galsworthy's only child Edith, to whom testatrix was much attached. At the end of the year 1864 Louisa Galsworthy completely recovered from her illness, and the fact of such recovery was known to the testatrix, who visited her sister in 1865. In con- sequence of the recovery of her sister, the testatrix probably erased, or attempted to erase, the words niece Edith from the will, in order to substitute in the place thereof the name of her sister, and in con- sequence of the space being insufficient for the full name, left out the word Jeremy, which in other cases she had always used. Louisa Gals- worthy died in October, 1866, and from that time the testatrix was incompetent to manage her affairs, or make a new will. Dr. Tristram, for the executor, applied for probate. Sir J. Hannen. By the will of the testatrix, as found at her death, half the residue of her money was left to her sister Louisa Galsworthy ; the words sister Louisa were written on an erasure, and as the at- testing witnesses could give no explanation of the alteration, these words must be rejected. But it is alleged that the words erased were niece Edith. It is stated by Messrs. Chabot and -Netherclift that they can, with the assistance of a magnifying-glass, read these words be- neath those which are substituted. I have myself carefully examined the will with the aid of a powerful glass, and I am unable to dis- cover what these gentlemen say they see. If this were a case of simple obliteration, I should not be able to act upon the evidence of these experts, for the Statute of Wills gives no effect to obliterations, except so far as the original words shall not be apparent. And this has been decided to mean, "apparent on an inspection of the instru- Ch. 7) THE REVOCATION OF WILLS. 825 ment," not "apparent by extrinsic evidence": Townley v. Watson, 3 Curt. 761. But as this is a case not merely of obliteration, but of substitution, I am at liberty to inquire whether the testatrix did not intend only to revoke the original bequest, on the supposition that she had effectu- ally substituted another. This is established by the cases of Brooke v. Kent, 3 Moo. P. C. 33-1 ; In the Goods of Harris, 1 Sw. & Tr. 536 ; In the Goods of Parr, 29 L. J. (P. M. & A.) 70; 6 Jur. (N. S.) 56. In the last-named case Sir C. Cresswell expressed a doubt whether the doctrine of dependent relative revocation could be applied to cases where not merely an appointment of a fresh executor was attempted, but a new legatee was substituted ; but the judgment of Sir W. Grant, in the case Ex parte Earl of Ilchester, 7 Ves. 372, shows that the doctrine is equally applicable where the later invalid will or bequest is in favor of a different person to the one named in the earlier. The designation of a fresh legatee is, no doubt, an important circumstance to be considered in determining the question of fact, whether the de- struction or obliteration was intended to be dependent on the efficacy of the substituted disposition ; but where that is clear, the nature or extent of the contemplated alterations are immaterial. This is well illustrated by the circumstances of the present case. If the words written on the first erasure be rejected, the bequest in the will will run thus: "To my Galszvorthy" This makes it clear that the bequest was to some connection of the deceased of the name of Gals- worthy. Her only relatives of that name were her sister, her sister's husband, and her sister's daughter. The facts stated in the affidavit of Mr. Galsworthy make it in the highest degree probable that the bequest was not originally made to the deceased's sister, because she was then dangerously ill and expected to die. In this state of things, it was natural that the bequest should be made to one of her family, as it is clear it was, but it cannot be supposed that the testatrix intended to revoke a bequest made under such circumstances absolutely, and without reference to her desire to substitute the name of her sister, who had been restored to health. I cannot have a doubt that she would not have obliterated the name of that member of her family of the name of Galsworthy, which orig- inally stood in the will, if she had not believed that she could validly, substitute the name of her sister ; and if this be so, the doctrine of dependent relative revocation is applicable, and I am at liberty to have recourse to any means of legal proof to establish what the obliterated words were. In this inquiry I accept the evidence of the experts to this extent, namely, that that which is visible of the remains of the letters which are obliterated is consistent with the theory that the words were niece Edith, and inconsistent with the theory that they were hrother-in-lmv, or any other words which can be reasonably suggested to fill up the blank between my and Galszvorthy ; and taking this in combination S26 LAST WILLS AND TESTAMENTS. (Part 1 with the other evidence as a whole, I come to the conclusion that the words obliterated were "niece Edith," and I direct probate with those words restored. The other words written on erasures, not being ac- counted for, must be rejected. In re GOODS OF HORSFORD. (Court of Probate, 1874. L. R. 3 P. & D. 211.) Georg-e Fahie Horsford, late a captain in Her Majesty's service, un- attached, on the 1st of April, 1868, executed a will which was writ- ten on two sheets of foolscap paper. The writing covered five sides of the paper, terminating at the bottom of the fifth side, with a full attestation clause where the witnesses signed their names. At the top on the sixth side were the words, "To which will and testament I here- unto annex my seal and signature, dated this 1st day of April, in the year of our Lord 1868. Geo. F, Horsford, Captain Unattached." Pieces of paper were pasted over certain parts of the will with writing on them, as appears in the paragraphs following in italics: "I leave the interest on £309. 9s. 6d. bank stock to my god-child, Rosina Horsford Wood; and in case of her death unmarried, or, if married, childless, then to my brother. Sir Robert Marsh Horsford, Knt., C. B., for his lifetime, and afterwards the interest to my cousin Amelia Thorpe, widow of Colonel Thorpe, formerly of the 89th Regi- ment; and after her death the principal of the said bank stock to Mary Flinch, the eldest daughter of John FUnch of Greenwich, Bs- qiiire, deceased. I also leave and bequeath to my adopted god-child, Rosina Horsford Wood, for her sole use during her lifetime, the in- terest of the sum of £174. 2s. 3d. reduced 3 per cent, annuities, and, if she marry and have children, the principal to them after her de- cease. In case she should die single, or, if married, childless, the in- terest of the said amount will revert to my brother. Sir Robert Marsh Horsford, Knt., C. B., and then to my cousin, Amelia Thorpe, &c., and after her death the principal to Mary Graham, daughter of the Rev. Leonard Graham, who married Lainnia Horsford." Sir Robert Marsh Horsford was appointed executor. On the 29th of July, 1874, the deceased executed a codicil to his will in the fol- lowing manner. It was written on a sheet of foolscap paper, the writ- ing covering the first and half the second sides of the sheet. Attached by a string, passing through the fold of the sheet about opposite to the termination of the writing, was a separate paper on which was written, "To which codicil I hereunto annex my seal and signature, dated this 29th day of July, 1874." This was followed by the sig- natures of the deceased and of the witnesses. Captain Hedley and Mrs. Bourne. The contents of the codicil, so far as material, were as follows: "Febry., 1870. Codicil to the will of Captain George Fahie Horsford. Ch. 7) THE REVOCATION OP WILLS. 327 Should anything occur to prevent from death my will acting in any way I have stated, I leave and bequeath to Mrs. George Davies, for- merly Rosina Horsford Wood, 82 Blake Street, Barrow-on-Furness, Lancashire, should she survive any children she may have, or in the event of her not having any, the whole of the money invested in my name in the different funds of the Bank of England, together with my bank stock, for her sole use. I leave and bequeath ten pounds, which will be found with my photograph, to Emily Bush, the young- est daughter of Lieut. Colonel J. T. Bush, late of the Honble. E. L Service, Bengal Army, as a remembrance for kindly coming to see me when she was a little girl !" The words in italics were written on pieces of paper pasted over the original writing of the codicil. * * * Nugent applied to the court to grant probate of the will and codicil. Sir J. Hannen.*** * * * a further question arose as to certain obliterations which appear upon the will and codicil, and of which the attesting witnesses were unable to give any account. Strips of paper have been pasted over portions of the original will and codicil, and on some of these strips, words have been written by the testator, by which he has sought to make bequests to several legatees. It is clear that the words so written on the strips of paper must follow the fate of ordinary alterations, and in the absence of evidence showing when they were made, it must be presumed that they were so added after the execution of the will and codicil. But ought I to treat the words over which the pieces of paper are pasted as effectually obliterated, and grant probate of the will or codicil with the hidden passages in blank, or ought I to endeavor to ascertain what words have been cov- ered up, and include them in the probate? As to the will, the answer to these questions depends upon the con- struction to be put on the twenty-first section of the statute 1 Vict. c. 26, by which it is 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 be- fore such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execu- tion of the will. Soon after the passing of the act. Sir H. J. Fust, in Townley v. Watson, 3 Curt. 761, decided that the construction to be put upon the words of the twenty-first section was that the effect of the will before the alterations must be apparent on the face of the in- strument itself. He said: "What is an obliteration? Is it not by some means covering over words originally written, so as to render them no longer legible? I cannot understand, if the Legislature really intended that extrinsic evidence should be admitted, why a few more words were not added, which would have freed the section from all doubt ; for instance, why was it not thus penned : 'unless the words shall be capable of being made apparent'?" I think it is impossible • » The statement of facts is abbreviated, and part of the opinion is omitted. 328 LAST WILLS AND TESTAMENTS. (Part 1 to read the words of the statute, and not say that it was the inten- tion of the Legislature that, if a testator shall take such pains to ob- literate certain passages in his will, and shall so effectually accomplish his purpose that those passages cannot be made out on the face of the instrument itself, it shall be a revocation as good and valid as if done according to the stricter forms mentioned in the act of Parlia- ment. Mr. Justice Williams (Executors, page 139, 6th Ed., in a note) says: "In a case before Sir H. J. Fust, he ordered that the erasures in a will should be carefully examined in the registry with the help of glasses, by persons accustomed to writing, to ascertain whether the words could be made out, and directed that probate should pass with the erased passages restored, unless they could not be made out, and then with those parts in blank. Generally speaking the Ecclesiastical Court will not in the first instance take upon itself to decide whether the words obliterated can or cannot be made out. It must be proved." But it has not been the practice to adopt any means of ascertaining what the words attempted to be obliterated were, other than mere in- spection by aid of glasses. Chemical agents have not been resorted to in order to remove any portion of the obscuring ink, and I do not think it would be proper to adopt such means. I think that the word "ap- parent" in the twenty-first section means apparent on the face of the. instrument in the condition in which it was left by the testator, and that if he has had recourse to extraordinary means to obliterate what he had written, then this court is not bound to take any steps to undo what he had done. The statute does not draw any distinction between different modes of obliteration. The effacement of the original writing as performed by this testator, by pasting paper over it, is complete, and I can see no reason why the court should remove the pasted paper used as the instrument of obliteration, rather than ink used for the same pur- pose. I shall therefore give no directions on the subject so far as the will is concerned ; and, assuming that the words covered over can- not be ascertained by inspection the probate must go with those parts in blank. But with regard to the obliterations in the codicil, the case is different. There the amount of a legacy has been obliterated, leav- ing the name of the legatee untouched. As to this, I am in a position to infer that the testator's intention was only to revoke that portion of the codicil which was covered in the event of his having effectually substituted another bequest in its place, and thus the doctrine of de- pendent relative revocation becomes applicable. As to these altera- tions, the court is at liberty to have recourse to any means of legal proof by which to ascertain the original disposition, and amongst such means, the removal of the strips of paper is the most obvious, I therefore direct that the strip on which is written the word ten, as well as the strip on which are written the words which will be found Ch. 7) /THE REVOCATION OP- WILLS. 329 with (to which the same remarks are applicable) be removed in the registry from the codicil, and that probate be granted of that instru- ment in its unaltered condition.'* LOCKE V. JAMES. (Court of Exchequer. 184a 11 M. A W. 901.) Parke, B.'^ The material facts in this case were as follows: Ralph Nicholson, by his will, duly signed and published in the pres- ence of and attested by three witnesses, devised certain real estates in Essex to his son Ralph Nicholson in fee, charged with the payment of an annuity of six hundred pounds to his daughter Elizabeth James, the defendant, for her life, with the usual powers of distress and en- try ; and after various other devises and bequests, he gave all the res- idue of his estate, after payment of his debts, and the legacies and an- nuities thereinbefore bequeathed, and the duty payable thereon, to his said son, his heirs, executors, and administrators. On the 15th of August, 1830, the testator with his pen erased the word "six," in the gift of the annuity, and wrote over it the word "two," leaving, how- ever, the word "six" still legible; and on the same day, he signed a codicil in the presence of and attested by one witness only, mentioning that he had on that day made the above-mentioned alteration. The testator died in December, 1831, and his will and codicil, with other codicils not material to be now considered, were duly proved soon after his decease, and the executors possessed themselves of his personal estate, which was more than sufficient to satisfy his debts and legacies, including the annuities. The plaintiffs are the parties entitled to the real estate under Ralph Nicholson, the devisee, and they have brought the present action, which is an action of trespass for seizing their goods under a distress. The question is, whether the defendant is entitled under the will and codicil to an annuity of £600 per annum, or to an annuity of i200 per annum only. If she is entitled to £600 per annum, then it is admit- ted that the distress was lawful, and that this action cannot be main- tained. It was not, and indeed could not have been, disputed, but that if the annuity had been charged on the real estate only, then neither the erasure nor the codicil would have affected it. The erasure would have had no effect, because the testator did not mean to destroy the «" Twenty years later, in Ffinch v. Combe, [1894] P. 191, It proved possible to decipher certain of the words under the pasted slips on this will by plac- ing a piece of brown paper around the slips and holding the document against a window pane, and the words thus read were accordingly included in the probate. 81 The statement of facts is omitted. 330 LAST WILLS AND TESTAMENTS. (Part 1 annuity of £600 per annum in any other way than by substituting for it an annuity of £200 per annum. The substitution in the will was inoperative, having been made after the subscription of the witnesses, not in their presence, and without republication; and the substitu- tion, for the purpose of giving effect to which the erasure was made, thus failing, the law is clear that the erasure fails also. It is treated as an act done by mere mistake, sine animo cancellandi. What the testator in such a case is considered to have intended, is a complex act, to undo a previous gift, for the purpose of making another gift in its place. If the latter branch of his intention cannot be effected, the doctrine is, that there is no sufficient reason to be satisfied that he meant to vary the former gift at all. The codicil or memorandum, being unattested, clearly could have no effect on the disposition of the real estate. But on the part of the plaintiffs, it is argued, that, taking such to be the law where the gift relates to real estate only, yet here the case is different, for that, looking to the whole will, the personal estate would be the primary fund for payment of the annuity, the real estate be- ing liable only in case the personal estate should be deficient. And then it was said, the erasure and codicil together would certainly have the effect of reducing the annuity, so far as it was payable out of the personal estate, and so, by necessary consequence, must affect the real estate, which is merely charged by way of security, in case the per- sonal estate should be insufficient. And in support of this proposition the plaintiffs relied mainly on the case of Brudenell v. Boughton [2 Atk. 268], before Lord Hardwicke. The defendant's counsel, on the other hand, contended that, even supposing Brudenell v. Boughton to have been well decided, yet it did not apply to a case like the present, but only to the case of a general charge of legacies ; and he referred to The Attorney General v. Ward [3 Ves. Jr. 327], Kirke v. Kirke [4 Russ. 435], Beckett v. Harden [4 M. & S. 1], and other cases. We do not think that, in .order to decide this case, we are bound to discuss, or indeed that we should be warranted in discussing, the question as to what effect a court of equity might give to the acts of this testator. The question for our decision is a mere legal question. The testator by his will gave to the defendant a legal interest in his lands (for an annuity charged on land, with a power of distress, is clearly a legal interest), and what we have to decide is, whether that legal interest has since been altered. We are clearly of opinion that it has not. It is clear, that if the annuitant had nothing but the land to resort to, her interest would have remained unaltered, for the rea- sons already mentioned, and the circumstance that she may, through the medium of a court of equity, have another fund liable to her de- mand, cannot possibly affect our judgment. A court of law cannot look to anything but the legal rights of the parties; if, by means of the erasure and codicil, that which was originally a right to or a se- curity for £600 per annum, has now become a security for £200 per Ch. 7) THE REVOCATION OF WILLS. 331 annum only, the parties injured by the attempt to enforce the larger demand must have recourse to a court of equity for relief. The legal interest remains as it was originally. That legal interest is a rent-charge of £600 per annum, created by a will duly executed and attested. The gift of this legal interest has not been cancelled, for the erasure was made sine animo cancellandi. It has not been affected by the codicil, for the codicil is not duly at- tested, and therefore cannot even be looked at, so far as the real es tate is concerned. On this short ground there must be judgment fo the defendant.®^ In re KNAPEN'S WILL. (Supreme Court of Vermont, 1903. 75 Vt. 146, 53 Atl. 1003, 98 Am. St. R 808.) Stafford, J. The testatrix made and executed her will in due form of law, and the same is still decipherable. But afterwards she at- tempted to make various changes therein without complying or at- tempting to comply with the requirements of the statute; and the question is threefold — whether the will is to be established as it was when it was executed, disregarding the attempted changes ; or to be disallowed as having been wholly revoked thereby; or to be estab- lished as originally executed, except as to certain clauses, and as to those to be treated as revoked by cancellation. The will, as executed, made some special bequests, and several money bequests, and then added a residuary clause in favor of the testatrix's two sisters, Susan Tupper and Margaret Vaux. In this clause a pen and ink line has been drawn through the name "Mar- garet Vaux." In the margin opposite has been written in ink the word "deceased"; and at the end of the clause have been added, also in ink, the words, "Share with Mrs. Ada Stabb." The original will was typewritten, and all the attempted changes made with a pen are,- it is agreed, in the handwriting of the testatrix. In one of the early clauses there was a bequest to the same Margaret Vaux of five hundred dollars. Here the name "Margaret" has been drawn through with a hne in ink, and the word "deceased" written in the margin opposite ; and to the clause have been added the words, "to be given to Mrs. Ada Vaux Stabb." The next clause originally read as follows : "I give and bequeath to 62 See Brooke v. Kent, 3 Moo. P. C. 334 (1840) ; Goods of Nelson, N. R. 6 Eq. 509 (1882). In Gardner v. Gardiner, 65 N. H. 230, 19 Atl. 651, 8 L. R. A 383 (18S9) the testatrix attempted by an unattested alteration to increase a eift of one undivided fourteenth of her estate to that of one undivided twelfth and the will as originally executed was established. In In re Wilcox s ^\ ill (Sur) 20 N Y. Supp. 131 (1892), legacies of $7,000 were changed to $11.00a without attestation by the erasure of the letter "s" in "seven" and the sub- stitution therefor of the letters "el," and the will as originally executed wa& established. 332 LAST WILLS AND TESTAMENTS. (Part 1 the two daughters of my said sister Margaret Vaux, Bessie and Ada, each, the sum of three hundred dollars. I also give to the said Bessie and Ada, each, one half dozen silver teaspoons. I also give to the said Ada Vaux my gold watch." The changes made are these: The name "Bessie" has been drawn through with an ink line where it first occurs and marked over with a pencil in the other place. The word "watch" has been marked over with a pencil. To the clause have been added in ink the words, "To be given to Mrs. Ada Vaux Stabb;" and these words have been marked over with a pencil. In the next clause but one, a bequest of two hundred dollars has been changed by writing in ink the word "four" over the word "two," and by writing in the margin the word "four" and the figures "400." In the next clause the name of the legatee and the words designating the amount have been drawn through with an ink line. Other similar changes have been' made. New bequests have been written in the margins, and one of these has been marked over with a pencil. First, then, do the attempted changes constitute a revocation of the will? V. S. 2354, following the English Statute of Frauds, declares: "No will shall be revoked, except by implication of law, otherwise than by some will, codicil, or other writing, executed as provided in case of wills; or by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator himself, or by some other person in his presence and by his express direction." Do the alterations amount to a revocation of the will by cancellation? The agreed statement of facts does not say that the alterations were made with the intention of revoking the will, and. judging from the alterations themselves, there was no intention to revoke the will as a whole, but, on the contrary, an intention to have it stand with certain changes. There is no interference with the fonnal parts, and no in- tention to revoke the whole is anywhere expressed. In these impor- tant respects the case differs from Warner v. Warner's Estate, 37 Vt. 356, 367, where the testator had written across one page of the in- strument, "This will is hereby cancelled and annulled." and under the filing on the outside, "Cancelled and is null and void. I. Warner," and had erased the words, "In testimony whereof I have." We think the attempted changes in the present case cannot be said, as matter of law, to amount to a revocation of the whole will by cancellation, for although they would, if effectual, make of it a very different instru- ment, yet it cannot be said therefrom that the testatrix would not have left the instrument as it was in the first place, rather than have died intestate.** «• In Dammann ▼. Dammann (Md.) 28 Atl. 408 (1894), a will was so marked lip by .erasures, interlineations, and marginal notes that, altliongli some items were not specifically erased, the court was convinced, and held, that the testator intended to revoke the entire will by cancellation at all events, ftud to make a new one later. See, also, Muh's Succession, 35 La. Ann. 394, 48 Am. Rep. 242 (1883). Ch. 7) THB REVOCATION OF WILLS. 333 The interlineations of new and independent bequests are, of course, ineffectual. Neither do they invalidate the will, which was properly executed in its original form. Wheeler v. Bent, 7 Pick. (Mass.) 61; Jackson v. Holloway, 7 Johns. (N. Y.) 394. Do any of the attempted cancellations of separate clauses constitute a revocation .of the will to that extent? If we admit that in some circumstances there may be a partial revocation, we have to take note of certain complications in the present case. This will contains a residuary clause, and every cancellation of a money legacy, and prob- ably, as this will is written, every cancellation of a specific legacy as well, works a corresponding increase in the residuary clause. Bige- low v. Gillott, 123 Mass. 102, 25 Am. Rep. 32. If there had been no residuary clause, the cancellation of a legacy would merely have left that part of the estate to be distributed as if no will had been made, and the rest of the will would operate as before ; but here the cancel- lation gives the residuary clause a different operation. This has been held to prevent the attempted cancellation from operating as a partial revocation. Miles' Appeal, 68 Conn. 237, 36 Atl. 39, 36 L. R. A. 176. But if we should hold otherwise upon this point, as was done in Bigelow V. Gillott, 123 Mass. 102, 25 Am. Rep. 32, we must notice a further difficulty. The testatrix has attempted to substitute a new residuary legatee in place of her deceased sister, Alargaret; thus coupling the cancellation of previous bequests, and the consequent en- largement of the residuary bequest, with the substitution , of a new residuary legatee ; so that it is impossible to say that she would have desired to make any of the cancellations if she had not supposed that the new residuary legatee would receive the benefit arising therefrom. In short, the alterations, when taken together, rebut the presumption of an intention to cancel any clause by itself and independently of other attempted changes and additions which are ineffectual for want of formality. An act which might otherwise amount to a cancellation of an entire will has been held not to work that result because accompanied by other acts showing that the intention to cancel was conditional, and not absolute, as where the testator wrote upon the will the word "Can- celled," but further wrote that he intended making another will, "whereupon I shall destroy this." In re Brewster, 6 Jur. (N. S.) 56, 29 L. J. P. & D. 69 ; Woerner's Am. Law of Administration, § 48, with citations. So, likewise, where the testator includes an express clause of revocation in a later will, which fails to take effect through some defect therein, but not where it fails through some cause dehors the instrument. Hairston v. Hairston, 30 Miss. 276. J&rman on Wills, vol. 1, p. 294, states the rule thus: "Where the act of cancellation or destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new dis- position, such will be the legal effect of the transaction ; and therefore 334 LAST WILLS AND TESTAMENTS. (Pait 1 if the will intended to be substituted is inoperative from defect of at- testation, or any other cause, the revocation fails, also, and the original will remains in force." The words "or any other cause" may give the rule too much breadth, but they may be omitted without impairing the rule for our purpose. Similarly it is said with respect to partial obliterations or cancellations that if they are made with the intention of substituting other words for those cancelled, and such intention is frustrated, there is no revocation. Woerner's Am. L,aw of Adminis- tration, § 49 ; Jarman on Wills, vol. 1, p. 295, with the cases cited by both authors. As before remarked, the agreed statement upon which this case is tried, while it says that the alterations are all in the testatrix's hand- writing, does not say with what intention they were made. Conse- quently we can assume only such intention as the acts necessarily im- ply. The intention to revoke is indispensable to a revocation, what- ever the act may be; and here the acts, taken together, certainly do not imply an intention to revoke absolutely and unconditionally, but only to do so in connection with and dependently upon the making of certain other changes. The intention expressed in such further altera- tions and additions having been frustrated by failure to comply with the statute', it must be held that there was no revocation. The result is that yll the attempted changes, being readily distinguishable and agreed/ipon, go for nothing; and the will must be established as it was originally executed. JuGgment reversed and cause remanded.'* In re TOUSEY'S WILU (Surroga^'s Court, New York County, 1901. 34 Misc. Rep. 363, 69 N. T. Supp. 846.) Thomas, S. The contestant concedes that the papers offered for probate were duly executed by the decedent as her last will and codicil thereto. The sole ground of contest is based on a recital in the will to the effect that the decedent was unmarried and had no "direct heirs." A cousin who had not seen her or communicated with her, either directly or indirectly, for over 40 years before her decease, contends that he is a "direct heir" ; that he was missing, and his whereabouts were not known to the members of his immediate family, for some years; that the inference to be drawn from the language of «* In Simmons v. Rudall, 1 Simons (N. S.) 114 flS51), Wolf v. Bollinger, 62 111. 308 (1872), and Thomas v. Thomas, 76 Minn. 237, 79 N. W. l04, 77 Am. St. Rep. 039 (1899), gifts to one person in a will were canceled and another per- son's name substituted by unattested interlineation, and the original bene- ficiary was allowed to take. In Goods of Greenwood, [1892] P. 7, the original executor was allowed to act in place of the one whose name was substituted by unattested interlineation. Ch. 7) THE REVOCATION OF WILLS. 335 the will is that the decedent mistakenly supposed him dead, and made the will because of this mistake; and that as against bun she died intestate. Second cousins were mentioned by name in the will,^ and it is clear that the decedent did not regard them as "direct heirs." She probably used the word "direct" for "lineal," and I am not satisfied that she made any mistake whatever. The doctrine of dependent relative revocation includes as one of its branches, and applies to an attempted revocation of a testamentary provision which upon some ground of mistake is held inoperative. If applicable to a will, it must appear clearly, from the will itself, not only that there has been a mistake made by the testator, but also just what he would have done in case there had been no mistake. Gifford V. Dyer, 2 R. I. 99, 57 Am. Dec. 708. Where a legacy was made by a will, and in a codicil revoking it it was recited that the legatee was dead such revocation was held inoperative on proof that the legatee survived the testator (Campbell v. French, 3 Ves. 321) ; but, even in case of revocation by codicil, the rule has been applied with caution, and the mistake must appear on the face of the codicil as the sole moving cause to induce the revocation (Skipwith v. Cabell's Ex'r, 19 Grat. [Va.] 758).^'' An apparent mistake as to a matter of fact, as to which the testator must have had full knowledge, is not sufficient. Mendinhall's Appeal, 124 Pa. 387, 16 Atl. 881, 10 Am. St. Rep. 591. In no case which has been brought to my notice has a will been refused probate, or has any attempt been made to correct or change its provisions, on proof extraneous to the document of a mistake by the testator as to a fact which might possibly have led him to do something different from what he has done. On the contrary, the cases in the courts of this state, which require the testator's directions to be fol- lowed, even though it may be made quite clearly to appear that he was actuated by erroneous opinions on questions of fact, are quite numerous. In re Bedlow, 67 Hun, 414, 22 N. Y. Supp. 290 ; Clapp V Fullerton, 34 N. Y. 190, 90 Am. Dec. 681 ; In re Hams' Will, 19 Misc. Rep. 388, 44 N. Y. Supp. 341; Creely v. Ostrander, 3 Bradf. Sur. (N. Y.) 107. 1 ^ ^ .u -n The objections of the contestant must be overruled, and the will admitted to probate.* as Tn this case the codicil, dated November 27, 1S61, read, "In consequence of the state oTthe country, i now revoke my bequests," and it was contended ?hi the testatrix revoked the bequests because she erroneously believed that they wouM be confiscated under the sequestration act of the Confederate States The court refused "to go outside of the will and to ascertain what IS? the particular views and opinions of the testatrix, so as to lay the f'n?!n,inHon for a case of mistake." See, also, Newton v. Newton, 12 Q. Ch. Ts (1861) Dunham V. Averill, 45 Conn. 61, 29 Am. Rep. 642 (1877) * This case is inserted here to bring out the distinction between the case of the TaLng oJ a win under a mistta.en notion about the possible or actual beneficiaSfs and the case of the revocation, under such misapprehension, ot a testamentary provision already made. 336 . LAST WILLS AND TESTAMENTS. (Part 1 Appeal of STRONG. (Supreme Court of Errors of Connecticut, 1906. 79 Conn. 123, 63 Atl. 1089, 6 L. R. A, [N. S.] 1107, 118 Am. St. Rep. 138.) Baldwin, J.^° * * * 'j^j^g paper presented to the court of pro- bate as the will of Miss Strong was in a condition which had some tendency to show that she had revoked it. It had been torn and it had been marked by her as "Superseded by written one." It has not been found by the superior court that she tore it, but we shall treat the case as if such a finding had been made, and as if whatever she did was done "be fore she became delirious in her last illness. No act of tearing or cancellation destroys a will unless it be done with the intention of revoking it. An intent to revoke may be either absolute and final, or dependent on the existence, or a belief in the ex- istence of circumstances. The words "Superseded by written one" sufficiently indicate that when Miss Strong wrote them she assumed that the draft in her handwriting then had full testamentary force and effect, and so, as it covered the same ground in a different manner had destroyed her previous dispositions by will. These were treated as destroyed simply because they had been re- placed by something else. Here she was acting under a mistake, and one apparent from the words used to effect the cancellation. This mistake was plainly the sole cause for the revocation which she in- tended to declare. Unless she exercised the power of disposition giv- en her by Mr. Harris, the fund which was subject to it would go to strangers to her blood. The main object both of the will and of the draft will was to exercise it. The case, therefore, is within the rea- son of the rule that a writing purporting to revoke a will on account of the existence of a certain fact does not revoke it if there be no such fact. Dunham v. Averill, 45 Conn. 61, 80, 29 Am. Rep. 642. It is true that the mistake is, at bottom, one of law. Miss Strong supposed that her unsigned and unattested will would have full effect upon her decease. In law it had no effect. But as respects a question of this nature, it is immaterial whether the mistake under which the act of revocation was done were one of fact or law. The act was nothing unless done with the intent of revocation. If the intent to revoke was, as in this case, clearly dependent on a reliance upon a certain legal consequence attributed to certain circumstances, an error in attributing that effect to them is as effectual a bar to an actual revo- cation as if it were a pure error of fact. Security Co. v. Snow, 70 Conn. 288, 294, 39 Atl. 153, 66 Am. St. Rep. 107 ; Stickney v. Ham- mond, 138 Mass. 116, 120; Clarkson v. Clarkson, 2 Sw. & Tr. 497. The expression of the motive for the act of cancellation must gov- ern the result of the act of tearing the will. The will and draft will having been found in the same envelope, it is evident that whatever •''I'art only of the opinion is given. Ch. 7) THE REVOCATION OF WILLS. 337 Miss Strong did constituted one transaction proceeding from the same intent and actuated by the same cause. It is found by the superior court that the will signed in 1897, was executed in all respects accord- ing to law, and that Miss Strong was then of full age and sound mind and memory. It should, therefore, have been admitted to probate. The superior court is advised to disaffirm the decree of the court of probate, and admit the paper propounded as the will of Miss Strong. to probate, as such. C08T, Wills— 22 338 LAST WILLS AND TESTAMENTS. (Part 1 CHAPTER VIII THE REPUBLICATION AND REVIVAL OF WILLS SECTION 1.— STATUTES WILLS ACT (1837). XXII. And be it further enacted that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived other- wise than by the re-execution thereof, or by a codicil executed in man- ner 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 shall be revived, such revival shall not ex- tend to so much thereof as shall have been revoked before the revoca- tion of the whole thereof, unless an intention to the contrary shall be shown. XXIII. And be it further enacted, that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked 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 and personal estate comprised in it as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. 7 Wm. IV & 1 Vict. c. 26, §§ XXII-XXIV (1837).^ 1 "Under the Statute of Frauds, to republish a devise of freehold estate required an attestation by three vv-itnosses ; while, on the other hand, a will might have been republished with respect to copyhold and personalty with- out any attestation. It was not often necessary, however, to inquire as to the republication of wills of personal estate, inasmuch as a residuary be- quest, even under the old law, embraced all that species of property of which the testator died possessed ; so that republication (which merely caus- ed the will to speak and operate from the period of its being rei)ublished) had no effect in enlarging the operation of such a bequest." 1 Jarman on Wills (Gth Ed.) *1^^^. Prior to the Statute of ]B;rauds a republication of a will of realty could be bv parol. Beckford v. Parnecott, Cro. Eliz. 493 (159G). Compare Jones v. Hartley, 2 \Vhart. (Pa.) 103 (1837). Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 33^ SECTION 2.— REPUBLICATION CARLETON ex dem. GRIFFIN v. GRIFFIN. (Court of King's Bench, 1758. 1 Burr. 549.) Ejectment, brought upon the demise of the heir at law. The de- fendant claimed under a will dated May 2, 1752. That will was written by the testator himself and signed by him, but there was no seal nor witness to it. January 5, 1754, the testator wrote on the same piece of paper certain gifts of personal property to his wife, and in this additional writing said : "And this not to disannul any of the former part made by me, the 2d of May, 1752; except that my wife shall not be liable to pay to my son John," etc. The exception did not relate to the real estate. The testator signed this additional writing in the presence of three witnesses. And then he took the said sheet of paper in his hand and declared it to be his last will and testament, in* the presence of the said three witnesses ; and then delivered it to them and desired they would attest and subscribe it in his presence and in the presence of each other; which they accordingly did. A verdict having been given for the plaintiff subject to the opinion of the court, the first question was : (1) Whether the republication of the said first will (made in 1752) upon the 5th of January, 1754, be a publication or republication of his first will, within the statute of frauds. Mr. Justice Denison.^ A man may make his will at different times ;. and the witnesses may attest at different times. Here, an illiterate man makes and signs his will, in which there is a devise of lands. Ta be sure, if he had died before attestation, the devise of the land had not been valid. But afterwards, he adds more to it, on the same sheet of paper, and declares, "that he does not thereby mean to disannul any part of his former devise and disposition," and signs it, and then takes the sheet of paper in his hand, and declares it to be his last will and testament, in the presence of three witnesses, and desires the wit- nesses to attest it, which they do in his presence, &c. This must be considered as one entire will, made at different times ;, and attested agreeable to the statute of frauds. * * * Mr. Justice Wilmot. He also considered this as an entire instru- ment, and as a continuation of the former act. * * * And the testator's having originally signed the former part is out of the case, and makes no difference ; for it was not at all necessary or material to it, as a will of personal estate, and the signing alone, 2 The statement of facts is abbreviated, the opinion of Lord Mansfield Is omitted, and part only of the other opinions is given. 340 LAST WILLS AND TESTAMENTS. (Part 1 unattended with the other requisites, was not sufficient to render it effectual as a will of land. Therefore it was totally immaterial. * * * Per Cur, (unanimously). Let the postea be delivered to the de- fendant. WILLIAMS V. GOODTITLE. (Ctourt of King's Bench, 1830. 10 B. & C. 895.) Ejectment for lands in Glamorganshire. Plea, not guilty. At the trial at the spring great sessions for the county of Glamorgan, 1828, the jury found a special verdict, the material parts of which were as follows: That David Thomas, being seised in fee of certain real es- tates, on the 24th of April, 1795, made his will in writing, duly execut- ed and attested, for passing real estates, whereby, after various other devises, he gave and devised "all the rest of his real estate whatsoever and wheresoever situate, not therein before particularly devised, unto his wife Elizabeth Thomas, her heirs and assigns, absolutely forever." That afterwards the testator purchased other real estates (part of which formed the subject-matter of this ejectment), and afterwards made a codicil in writing, duly executed and attested, to pass real ^estates as follows: "Whereas I did by my last will and testament in writing, duly executed and attested, give, devise, and bequeath all the real and personal estate I was then possessed of in the manner therein _mentioned, and which said will I do hereby ratify and confirm." The testator then recited, that since the date of his said will he had pur- chased other property, including that now in question, and devised the same to his wife for life, and after her death he devised the part there- of now in question to trustees upon trusts that were bad in law, and the residue specifically to certain persons in fee. The testator died on the 19th July, 1814, leaving his wife him surviving, and the defend- ant Elizabeth Williams his heiress at law. Elizabeth Thomas, the widow of the testator, died, before the date of the demise in the dec- laration, intestate, leaving John David, the lessor of the plaintiff, her heir at law. Upon this verdict the court of great sessions gave judg- ment for the plaintiff, whereupon a writ of error was brought and the common errors assigned. Lord Tenterden, C. J. I am of opinion that the will and codicil are to be considered as one instrument made at the date of the codicil. Then it appears that there is a devise to the wife for life, then certain other devises follow, and, lastly, there is a general residuary clause in favor of the wife. It is admitted that, if all that were in a will, the particular devise and residuary clause might well stand together, and the wife would take under the residuary clause. Now I think that the expression at the commencement of the codicil in question shows the intention of the testator to have been to ratifv his will as to all Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. that he was possessed of at the time of the ratification, and that being so, the lessor of the plaintiff below, as heir at law of the widow, wa clearly entitled to recover. Judgment affirmed.' In re CHAMPION. DUDLEY V. CHAMPION. (Supreme Court of Judicature, Court of Appeal. [1893] 1 Ch. 101.) LiNDLEY, L. J.* This case does not present much difficulty. The testator by his will devised a freehold cottage and the land and appur- tenances thereto belonging, which he described as "now in my own occupation," to trustees upon certain trusts. After the date of his will he bought two other fields adjoining the cottage, and then he made a codicil shortly before his death by which he substituted other trustees for those named in his will, and confirmed his will in other respects. This codicil having been made after the purchase of the two fields, what is its effect upon the devise contained in the will ? In my opinion, it is quite clear that the two fields, which as well as the cottage were in his own occupation when he made the codicil, passed to the trustees together with the cottage and its appurtenances. This was the first point argued, and on it there can be no doubt. * * * The appeal must therefore be dismissed."^ BowEN and A. L. Smith, L. JJ., concurred. « "That a codicil makes the will speak as of Its own date must be admit- ted to be the general rule; but it may nevertheless be framed in such a manner as to operate as a partial republication only, or to work no repub- lication at all. If. for example, I leave by will all my farms at Dale to A., and, having afterwards acquired another farm at Dale, I say in a subsequent codicil, 'I hereby give to B. the identical farms which my will has given to A.,' it would obviously be doing violence to the language to construe those Words as carrying the newly acquired farm." Brougham, L. C, in Monypen- ny V. Bristow. 2 Russ. & Myl. 117, 1.32 (1832). "If, therefore, the language of the original will be such as, if used at the date of the republication, it would not include the after-purchased estate in its terms or description, or if the act of republication be accompanied with other provisions, indicating that it was the intention of the testator to limit the operation of the will, as republished, to the same estate which was given, and which would legally pass by the original will, then, notwithstanding such republication, the de- vise will not include the after-purchased estate, because, although the power then exists to devise, yet the intent is wanting, and, as both do not con- cur, the after-purcfliased estate does not pass." Shaw, C. J., in Haven v. Fost- er, 14 Pick. ^^Iass.) 534, 541 (1833). Compare In re Portal and Lamb, 30 Ch. D. 50 (1885), where, however, there was no codicil. 4 The statement of facts and the opinion of North, J., in the court below are omitted, and part only of the opinion in the Court of Appeal is given. 8 But compare the following remarks of Lord Crauworth, V. C, in Stilwell T. Mellersh, 20 L. J. Ch. 356, 361, 362 (1851) : "In my opinion, then, when it is said a codicil republishing a will, or con- firming a will, makes the will speak from the time of republication, that does not mean that you are to read the will in any way different from the mode in which it would have been read if the testator had died the moment LAST WILLS AND TESTAMENTS. (Part 1 In re GOODS OF TRURO. (Court of Probate, 18G6. L. R. 1 P. & D. 201.) he Dowager Lady Truro died on the 21st of May, 1866, leaving- a will dated the 15th of September, 1865, and a codicil dated the 10th of October, 1865. The will contained the following clause: "I likewise bequeath to the present Baron Truro, in affectionate recollection of his kindness to me, all my library and books and maps, except such parts thereof as I shall herein or after or by codicil otherwise dispose of ; and also all my engravings, paintings, pictures, and drawings, save and except such parts thereof as I shall herein or after or by codicil otherwise dispose of; also all my household bed and table linen, and also all such articles of silver plate and plated articles as are contained in the inventory signed by me and deposited herewith." The will was deposited by the deceased at Messrs. Coutts', the bankers, in an envelope with an indorsement in her writing, and in the same envelope with the will was found an inner envelope contain- ing a list of plate. The list, which was in several sheets, was headed "List of plate and plated articles left by my will dated the 15th of September, 1865, to the present Baron Truro. Augusta E. Truro." The list was signed by the deceased in several places, and on the last sheet was her signature and the date, 21st of September, 1865. Affi- davits were filed showing that the will and the list were deposited with Messrs. Coutts on the 21st of September, 1865, and that the codicil after he had executed it. What absurdities otherwise would arise. Sup- pose I by my will say I give £.500 to the present treasurer of Lincoln's Inn, and this day twelve months I republish uiy will, does that alter the party who is to take the legacy? That must he so, if it is to be read as if I had written it over again; the 'present' treasurer would be a different person. So I conceive if I had said, I devise all the estates of which I am now seis- ed. I afterwards purchase lands and republish my will. I confess I think the same principle applies as governed Tvord Cottenham in Cole v. Scott [1 Hall & Tw. 477]. My will must be read in the same way as if I had said, I give all the lands of which I, on this 24th day of March, 1851, am seised, and if I republish that in 1852, it will still be read just as it was before; it will refer only to that which Is there mentioned. Now, the cases in which this question has often arisen and with which we are familiar are these : where a party says by his will, *I give all my lands,' what does that mean? All the lands that I have power to give. When, a year afterwards, I re- publish that will, having intermediately purchased lands, it will apply to the after-purchased, lands. It is to be read just as if I had put in those words, 'all the estates which I had power to give.' Therefore, it seems to me that the distinction is manifest between an express date or an express name fixed upon. You cannot alter that by saying you republish the will at a different time. You do republish it so as to make it operate from that other later time, and if there be any legal effect that is brought to operate by what has taken ])lace In the mean time, you have the benefit of that But you cannot alter the meaning of the will, which you will be doing if, by republishing the will, you are to treat the testator as liaving meant something by his will dif- ferent from that which he has there expressed. With regard to the case in the Court of Error of Williams v. Goodlitle |10 P.. & C. S'J.'>], I think that is all perfectly intelligible and right. A testator there, under the old state / Ch. S) THE REPUBLICATION AND REVIVAL OF WILLS. 343 was deposited at a subsequent date. One of the affidavits also proved that when the will was executed the attention of the testatrix was call- ed to the importance of signing the inventory and depositing it with her will, and that she intimated her intention of acting upon that sug- gestion. The Queen's Advocate and Dr. Spinks moved for probate of the will of the loth of September, 1865, the list of plate dated the 21st of September, 1865, and the codicil of the 10th of October, 1865. Sir J. P. Wilde. I have very serious doubts whether I could allow this list to form part of the probate if the question depended upon the words of the will, because, although to some extent they point to an existing document, I should, construing them by the existing facts, read them as meaning, not that the document had been signed at the time when the will was executed, and would be deposited with it, but as meaning that it would be signed and deposited when the will should be deposited. There is no distinct reference to an existing document. For, though the testatrix, in using the words, "signed by me, and deposited herewith," would prima facie seem to mean "now already signed and deposited," yet those words, like all others in a written document, must be construed in connection with the existing and sur- rounding state of things. Now, the will could not have been deposited at the time at which the testatrix was speaking, and the list when pro- duced was plainly not signed till the 31st of September. The true meaning, therefore, of the words, as spoken at that date, would seem to be, "a list which I intend to sign and deposit," etc. It is, however, unnecessary to decide whether the list is incorporated with the will, of the law. devises all his lands: that pas?es all he was then seised of; he republishes his will afterwards by a codicil, the legal effect of that is to pass after-purchased land, because the will speaks from that time. In both cases it means all the lands he had power to dispose of by law. The effect could not be altered by the circumstance that in his codicil he truly recites that by his will he had devised all he was then seised of; it only states what is the legal effect of his will. He republishes his will: the legal effect of republishing it must have its full operation. It does not seem to me that that case at all presses upon me. I was turning in my mind whether I could recollect any cases in which there was this sort of devise, 'I give to all my present children,' then an after-born child, and a codicil Tepublishing the will : certainly, according to my Impression, that would not give to the after-born child. I am not clear that that would quite govern the case, because the courts have stretched a good deal about children in a way that they have not done in other cases. I rather think that it would not. At the same time, I was not prepared for this sort of argument, and have therefore not looked into the point. If, upon looking into it, or being assisted by any suggestion from counsel on one side or the other, anything should be brought to my mind to show I am wrong, I should be most ready to admit it, and the more so because I do firmly believe that this would have been what the testator would have wished to do if his attention had been called to it. I think, although I cannot so construe what he has written, I do form a very shrewd guess as to what he would have written if his attention had been called to it, and he would have wished to write something which would have the meaning that it is contended the republication of the will does give to it. I do not find that within the four corners of the will, therefore I do not act upon it as the intention which is to govern me." 344 LAST WILLS AND TESTAMENTS. ^Part 1 because I am of opinion that it is entitled to probate by force of tlie codicil. This makes it material to look into the decisions on the subject. The general rule as to the consequences of republication is thus laid down by a most careful and learned text-writer: "It has long been settled law that the republication of a will is tantamount to the making of that will de novo; it brings down the will to the date of the repub- lishing, and makes it speak, as it were, at that time. In short, the will so republished is a new will." Williams on Executors (5th Ed.) pt. 1, bk. 2, p. 188, § 3. He then goes on to refer to numerous cases which have been decided in accordance with this principle, and amongst others to Skinner v. Ogle, 4 N. of C, at page 79, where it was held that "a codicil duly executed will give effect and operation to a will altered after the pass- ing of the act, although the alteration was not duly attested, and though the will itself was executed before 1838," and to In the Goods of Hunt, 2 Robert. 632, where Sir John Dodson held that a codicil duly executed will give effect to unexecuted papers which have been written between the periods of the execution of the will and the codi- cil, although the latter does not refer to the former. The question came before Sir C. Cresswell in March, 1863, In the Goods of Stewart, 3 Sw. & Tr. 192, and in June, 18C3, In the Goods of Matthias, 3 Sw. & Tr. 100. In the first case, the will contained this clause: "I direct my executors to distribute all pictures, books, and other articles according to any list or lists signed by me." A paper was found without any date, but which was executed before a second codicil, headed "List referred to in my will and codicil." The second codicil commenced "This is a codicil to the last will and testament of me. * * * I hereby confirm my last will with all the codicils thereto duly signed by me." "Held that the unattested paper was sufficiently identified and referred to in the will, and having been sign- ed before the execution of the codicil was entitled to be admitted to probate as a portion of the will confirmed by the codicil." In the second case the testatrix executed a will in 1848, in which she requested her trinkets to be divided "as I shall direct in a small mem- orandum." She executed a codicil in 1853, and another in ]862. On her death the will and two codicils and a paper headed "Memorandum of trinkets referred to in my will" were found folded together in a locked portfolio. There was no evidence to show that the memoran- dum was in existence when the will was executed, but there was evi- dence from which it might be inferred that it was in existence before the date of the last codicil, but the last codicil did not refer to it. It was held "that the re-execution of the will by the last codicil could not make that a part of the will which was no part of it before, and that the memorandum ought not to form part of the probate." The learned judge is reported to have said : "Assuming it as a fact that the mem- orandum was in existence before the date of the last codicil, can that Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 345 entitle it to form part of the probate? There is nothing to show that the memorandum was in existence when the will was signed ; it there- fore formed no part of the will. How can the execution of the codicil, which is a re-execution of the will, make that to be a part of the will which was no part of the will before, and the codicil contains no ref- erence to the memorandum?" And accordingly probate of the memo- randum was refused. Now there is no doubt that probate could not have been granted of that memorandum, because, treating the will as having been re-ex- ecuted at the date of the second codicil, the reference was not suffi- cient to incorporate it according to the rule laid down in Allen v. Mad- dock, 11 Moo. P. C. 427. But if the language of the learned judge was intended to have a universal application, if it is to be taken as laying down a general rule that by the kind of re-execution of a will which is involved in the execution of a codicil nothing can be inferen- tially added to a will which it did not contain before, it is at variance with the decision of the same learned judge in In the Goods of Wyatt, 2 Sw. & Tr. 495. In that case a testator executed a draft will in April, 1847, and an engrossed will in May, 1847. In September, 1854, he executed a codicil purporting to be a codicil to his last will of April, 1847. The draft will contained interlineations and cancellations in the testator's handwriting in ink and in pencil. Both wills were in the handwriting of the same person, who deposed that he copied the engrossed from the draft will. The engrossed will agreed with the draft will as altered in ink but not as altered in pencil. Probate was decreed of the draft will of April, 1847, including the alterations in ink, in so far as they agreed with the will of May, 1847, together with the codicil of 1854, but not those in pencil. If the proposition laid down by the learned judge in In the Goods of Matthias [supra] is a general one, that decision cannot be supported. I think that the prop- osition is not a general one, but must be read in reference to the case to which it refers. After considering these cases I have come to the following conclu- sion as to the rule by which the court should in future be guided in dealing with the republication of a will by a subsequent codicil : It is plain on the one hand that the republication of the will, which is involved in the execution of a codicil, may have the effect of adding something to the will which formed no part of it when executed, and which is not to be found in the codicil itself. The case just quoted. In the Goods of Wyatt, 2 Sw. & Tr. 494, in which the codicil was held to give effect to alterations made in the will after its execution, is a direct authority for this proposition. On the other hand it is plain that there must be a very distinct limit to the action of the court in this direction. For the tendency of such a doctrine, if not restrained, would be to place unexecuted papers on the same footing with those which have received due execution, merely because they were in exis- tence at the subsequent date of the execution of a codicil. 346 LAST WILLS AND TESTAMENTS. (Part 1 The court cannot, according to the authorities, give greater or less effect to a codicil than this : To treat its execution as if the testator had at the same time sat down and re-executed his will. Looked at in that light, the following rule would appear to be the consequence: Where the will, if treated as executed on the date of the codicil, and read as speaking at that date, contains language which, within the principle of Allen v. Maddock [supra] would operate as an incorpor- ation of the document to which it refers, testamentary effect may be given to such document. But when this is not the case, the mere fact of unexecuted papers having been written or signed between the date of the will and that of the codicil, will not suffice to add such papers to the will by force of republication, or to make that testamentary which would not have been so if the will had been originally executed at the later date. Applying that doctrine to the present case, and treating this will as having been re-executed on the date of the codicil, its language runs thus : "And also all such articles of silver plate and plated articles as are contained in the inventory signed by me and deposited herewith." Now, construing these words by the light of the events which had then happened, they appear with sufficient distinctness to refer to a document then existing. For the inventory referred to had then been signed by the testatrix and deposited at the bankers. The operation of the codicil as a re-execution of the will, therefore, gets rid of all difficulty, and I admit the will and the codicil to probate, together with the mventory signed by the testatrix. In re GOODS OF REID. (Court of Probate, 18G8. 38 L. J. [N. S.] P. & M. 1.) Mary Reid, late of Oxford Parade, Cheltenham, in the county of Gloucester, widow, died on or about the 19th of October, 1867, leav- ing a duly executed will and codicil. The will bore date the 24th of May, 1864 ; the codicil was not dated, but it appeared from the affida- vit of the attesting witnesses that it was executed in the latter part of April or the beginning of May, 1866. By her will she gave all her ready money to her executors, "to pay her funeral expenses, &c., as also some small sums as remembrances to friends, to be named in a letter addressed to my two nieces, Margaret G. Thain and Lilias Thain," whom she appointed residuary legatees. In disposing of certain sheep in Australia, she divided the flock into four parts. Three of these she specifically bequeathed, and then continued, "the other portion to be given to my residuary legatees, to be appropriated by them as specified in my letter." The codicil ran thus: "In consequence of some deaths in our fam- ily, it is necessary that I add a short codicil to my will, &c. In the Ch. 8) THE REPUBLICATION AND REVIVAL OP WILLS. 347 first place, my set of pearl ornaments, which I then left to Mary Ewe- retta Thain, in consequence of her early and melancholy death, so much lamented by us all, I must now destine to someone else, and as Mrs. Thain has no female in her family that either she or I would wish to possess those family jewels, I now leave them as intimated in the letter addressed to my residuary legatees." The will and codicil were found in an envelope in a sealed parcel. In the same parcel, but in a separate envelope, two unexecuted testa- mentary papers were also found. Paper No. 1 bore date the 1st of March, 1866, and commenced thus: "To my dear nieces, Margaret G. Thain and Lilias Thain, named in my last will and testament as my residuary legatees, and to whom I there stated it was my intention to address to them a letter which I wish to be equally binding and legal as if its contents had been expressed in the will itself. This my intimated intention I now shall endeavor to perform." The paper gave trifling legacies to certain friends and acquaintances, and also referred to her pearls — this reference and some other portions of the document being in pencil. Paper No. 2 simply expressed a wish that the fourth part of the sheep in Australia might go towards forming a fund to pay off a debt on a cottage, and had at the foot of it, "Cheltenham, 1865." Both papers were in the handwriting of the deceased. Dr. Swabey moved for probate of the will and codicil, together with the two unexecuted testamentary papers as incorporated by reference. Although the will does not refer to an existing paper, the unexecuted documents were written before the codicil, and in it the reference "I now leave them as intimated in the letter addressed to my residuary legatees" is a reference to an existing document. Sir J. P. Wilde. I think that those papers cannot be admitted to probate as part of the will. Dealing with the case as it appears on the face of the will, the unquestionable rule of law is that the will must refer to a paper as existing at the time, and then that the reference must be in such terms that the paper referred to can be fairly recog- nized. Now this will does not refer to an existing paper at all. It is said very truly that the language of the will is future, and points to a future document; and, further, the document which is asked to be incorporated refers to the fact that the testatrix intended to write such a paper, and it then goes on to say that this is the document which she so intended. It is quite plain therefore that the document referred to in the will was of a future character. But then comes the codicil. In The Goods of Lady Truro, 35 Law J. Rep. (N. S.) Prob. & M. 89, 1 Law Rep. Pr. & Div. 201, it was decided that the effect of a codicil was to make the will speak as if executed on the date of the codicil, but that is all. It was there said, "Where the will, if treated as exe- cuted on the date of the codicil and read as speaking at that date, contains language which, within the rule of Allen v. Maddock 11 348 LAST WILLS AND TESTAMENTS. (Part 1 Moo. P. C. 437, would operate as an incorporation of the document to which it refers, testamentary effect may be given to such document. But when this is not the case, the mere, fact of unexecuted papers having been written or signed between the date of the will and that of the codicil, will not suffice to add such papers to the will by force of republication, or to make that testamentary which would not have been so, if the will had been originally executed at the later date." But the language of this instrument, read it as you will, is languac:2 of a future character, and therefore it seems to me that it cannot fall within the rule laid down in the case to which I have referred. It is quite true that the effect of the codicil is to bring down the will to that date, and that the codicil speaks of leaving certain jewels "as intimated in the letter addressed to my residuary legatees ;" but then the language is ambiguous. It might point to an existing paper, but it might also point to a future paper, and the testatrix herself, when she was obviously speaking of a future paper in the will, used similar language — "the other portion to be given to my residuary legatees, to be appropriated by them as specified in my letter." The court cannot see on the face of the will or codicil any distinct reference to an exist- ing document, and still less that these documents existed at the time of their execution. Under these circumstances, the court can only grant probate of the will and codicil.' e Rut see Shaw v. Camp, 163 111. 144, 45 N. B. 211, 36 L. R. A. 112 (1896). In that case a sheet of testator's writing making an aclrlitionr.l bequest was attached by testator to the will after the will was attested. Still later testa- tor duly executed a codicil to his will. That codicil did not refer to the at- tached sheet but did refer to the will. It was held that the codicil made the attached sheet — designated in the case as "Sheet B" — part of the will. The court said (168 111. 148, 45 N. E. 212, 36 L. R. A. 112) : "The authorities fully sustain the position that, if 'sheet B' was attached to the original will at the time the codicil was signed and attested, the execution of the codicil operated as a publication of it, and a Kepublication of the whole will as it then existed; also, that the condition of the instrument at that time, and what the testator's intention was as to what should constitute his will, might properly be shovvm bv parol. Burge v. Hamilton, 72 Ga. .^68 (1884) ; Beall V. Cunningham, 3 B. Mon. [Ky.] 390. 39 Am. Dec. 469 (1843); Van Cortlandt T. Kip, 1 Hill [N. Y.] 590 (1841) ; Mooers v. White, 6 Johns. Ch. [N. Y.] ?>(>0 (1822) ; 1 Redfield on Wills, 2,S8. The Jury were justified by the evidoTice in finding, that the testator wrote and attached 'sheet B' to the original prior to the execution of the codicil. That being so, the reference by the codicil to the will was also a reference to that sheet. * * * The true will of deceased Included 'sheet B,' and the circuit court properly exercised its .jurisdiction In establishing it as such." Yet in Hunt v. Evans. 134 111. 496, 25 N. E. 579, 11 L. R. A. 185 (1890), where in a will a testator declared that he had deeded certain property in trust, and the statement was held not to incorporate a deed of trust prepared, but not executed, the court had said (134 111. 504, 25 N. E. 581, 11 L. R. A. 185) : "One instrument cannot be engrafted into another, and become a part thereof, unless the language used manifests an intention that such shall be done." Compare Goods of Heath, [1892] P. 253 ; Notes t. Doyle, 32 App. D. O. 413 (1909). Ch. 8) THE ftBPDBLJCATION AND REVIVAL. OF WILLS. 349 In re GOODS OF SMART. (High Court of Justice, Probate Division. [1902] P. 238.) See ante, p. 208, for a report of the case. In re EMMONS' WILL. (Supreme Court, Appellate Division, First Department, 1906. 110 App. Div. 701, 96 N. Y. Supp. 506.) Houghton, J. Frederick L. Emmons attempted on the 30th day of December, 1902, to execute his holographic will. The paper is very informal, and makes his mother the sole legatee and devisee; no exec- utor being appointed. It was signed by him, and published and de- clared as his last will and testament, in the presence, however, of only one witness, whose signature is the only one appearing thereto. Oi the death of the alleged testator this instrument was found in his safety deposit box, with other papers belonging to him. On the 16th day of May, 1904, the decedent properly executed what is stated there- in to be a "codicil to my last will and testament, bearing date , 190 — ." The only provision of this last instrument, in addition to the naming of executors of it and the former alleged will, is a bequest of $10,000 to the intestate of respondent Baruch. The attestation clause and the testimony of the subscribing witnesses show that it was pub- lished as a codicil to the alleged last will and testament. The execu- tors named presented both instruments for probate. The appellant filed contesting allegations to the efifect that the former paper should not be admitted to probate because it was not attested in conformity with the statute as a last will and testament, and that the latter paper should not be admitted to probate because it was not complete in it- self, and only purported to be a codicil to a will which was invalid. The learned surrogate felt constrained to admit both papers to pro- bate, and from such decree this appeal is taken. The theory of the respondents is that the properly probated and exe- cuted codicil, referring to the defectively executed will, validated it and incorporated it in the latter instrument, so that both were entitled to probate. Many English decisions, and those of many of our sister states, give support to the proposition that extraneous unattested docu- ments may be incorporated into a will by proper reference thereto. In this state, however, that doctrine does not prevail, and the rule is that no testamentary provision in other unexecuted or unattested papers can be incorporated into a will. Cook v. White, 43 App. Div. 388, 60 N. Y. Supp. 153, affirmed 167 N. Y. 588, 60 N. E. 1109 ; Matter of the Will of O'Neil, 91 N. Y. 516 ; Matter of Conway, 124 N. Y. 455, 460, 26 N- E. 1028, 11 L. R. A. 796. In the Matter of Andrews, 43 App. Div. 394, 60 N. Y. Supp. 141, the question was elaborately dis- 350 LAST WILLS AND TESTAMENTS. (Part 1 cussed, opinions being written by four of the judges taking part in the decision, and one of the dissenting opinions was written in the expressed hope that the Court of Appeals might be attracted to a re- newed consideration of the question and a modification of the rule. Such was not the result, however, for that decision was unanimously affirmed (162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294), and on review of the authorities the doctrine was reiterated. The rule, however, does not extend to a will properly executed, and which has been rendered inoperative by law, as by marriage of a woman (Brown v. Clark, 77 N. Y. 369), or to one which was executed while the testator was of unsound mind or under restraint (Cook y. White, supra). In such case the instrument, properly executed in form, may be revived and validated by the proper execution of a codi- cil referring to such instrument, or made for that purpose. Nor does the rule infringe upon the doctrine of revivor and republication of a validly executed will by the due execution and publication of a valid codicil. Matter of Campbell, 170 N. Y. 84, 62 N. E. 1070. The prior instrument executed by the decedent was not a will, for it lacked the attestation of the two witnesses required by statute, and, being therefore unexecuted and unattested, it could neither be revived by, nor incorporated into, the subsequently validly executed testamen- tary instrument denominated a "codicil." It is unfortunate that pro- bate must be denied this instrument. The deceased desired and at- tempted to give all his property to his mother. He was perfectly com- petent to decide to whom he would give his property, and there is no suggestion that there was any other will, or that the paper produced was not the one to which he referred in his codicil, notwithstanding the fact it is not identified by exact date. The remarks of the court in Matter of Andrews, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294, are peculiarly applicable to the present situation: "It is undoubtedly true that from time to time an honest attempt to execute a last will and testament is defeated by failure to observe some one or more of the statutory requirements. It is better that this should happen under a proper construction of the statute than that the individual case should be permitted to weaken those provisions calculated to protect testators generally from fraudulent alterations of their wills." The question remains to be considered whether the instrument de- nominated a "codicil" should also be denied probate. It was undoubt- edly the intention of the testator that this instrument should operate in connection with the will which he supposed he had executed, and that it should be an addition thereto. That his intention failed in this respect, however, does not defeat the instrument The distinguishing feature of a will is that it shall take effect upon death, and the name by which it is called is immaterial. Matter of Probate of Will of Diez, 50 N. Y. 88. A codicil may modify the provisions of a will or super- sede them entirely, or simply add to the disposition by introducing Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 351 new beneficiaries. A validly executed will may have been lost and be incapable of proof, and yet the codicil, so far as it goes, is operative. Newcomb v. Webster, 113 N. Y. 191, 21 N. E. 77. A codicil exe- cuted according to the formalities of the statute is a final testamentary disposition, and, if there be an existent and complete will, it takes it up and incorporates it. Matter of Campbell, 170 N. Y. 84, 63 N. E. 1070. If, however, there be no such existent and validly executed will, and if the codicil be so complete in itself as to be capable of execution, then it must necessarily stand and be given the force of valid testa- mentary disposition. The codicil in question, so far as it goes, is entirely complete. The carrying out of its provisions in no sense depends upon the will to which it attempts to refer. It simply carves out of the estate a legacy, and bequeaths it to an individual capable of taking. Besides, the in- strument appoints executors of the testator's estate. If it contained no other provision, this would alone entitle it to probate. Matter of Davis, 105 App. Div. 221, 93 N. Y. Supp. 1004; Id., 182 N. Y. 468, 75 N. E. 530. The decree appealed from, in so far as it admits to probate the paper dated December 30, 1902, must be reversed, and in all other respects affirmed, without costs to either party as against the other. All con- cur.' In re PLUMEL'S ESTATE. (Supreme Court of California, 1907. 151 Cal. 77, 90 Pac. 192, 121 Am. St Rep. 100.) See ante, p. 215, for a report of the case. 7 See note to Bryan's Appeal, ante, p. 211. In Sharp v. Wallace, 83 Ky. 584 (188G), the court held that a signed, but unattested, will not in the hand- WTiting of the testator could not be incorporated and validated by an un- witnessed holographic will. But see In re Sober, 78 Cal. 477, 21 Pac. 8 (1889), and In re Plumel, ante, p. 215. In Sawyer v. Sawyer, 52 N. C. 134 (1859), where a holographic will was revoked by the marriage of the testator, and an attempt was made to show an oral revival and republication, the court said (pages 139, 140): "It seems to us clear, as a necessary consequence of the provision of our statute, that a subsisting holograph will cannot be repub- lished, much less can a revoked holographic will be revived and republished, by verbal declarations, 'however explicit and earnest.' If an attested devise cannot be republished, or be revived and republished, except by a written instrument, attested in the manner required by the statute of frauds, in re- gard to the execution and revocation of devises, it follows by precise analogy that a holograph will cannot be republished, or revived and republished, ex- cept by a written instrument attested as required by the statute of frauds, or by "a holograph, verified in the manner required by our statute in regard to the execution and revocation of such wills. So our conclusion is that h holograph will revoked by the marriage of the testator can only be revived and republished by a written instrument setting forth his intention, duly attested by two witnesses, or written by the testator himself and found among his valuable papers, or handed to one for safe keeping." See, also, passage from Da Rue v. Lee, G3 W. Va. 388, 60 S. E. 388, 390, 14 L. R. A. (N. S ) 968 (1908), quoted in the note to Milam v. Stanley, ante, p. 94. 352 LAST WILLS AND TESTAMENTS. (Part 1 CROSBIE V, MacDOUAI^. (High Court of Chancery, 1799. 4 Ves. 610.) Master of the Rolls [Sir Richard Pepper Arden]." When this case was stated, I had no doubt upon it; and the Solicitor General has not been able to succeed in applying that case upon Lord Orford's will [3 Ves. Jr. 402], upon the authority of which alone he rests, to this. I shall give my opinion at present, having very little doubt; and if upon reading that case I see any reason to alter that opinion, I will mention it on Monday. The testator by his will gives two annuities to Sarah Crosbie. By the fourth codicil he revokes those annuities. Two days after the execution of that codicil, it is said (but that I lay totally out of the case; for I cannot say two days will furnish a presumption that four days or ten days would not furnish) but two days after the execution of the fourth codicil, the testator makes a fifth, expressly calling it a codicil to his will, by which he substitutes one executor for another, and then, in the common way, quite unnecessarily, he declares, that is the only point in which he makes any alteration in the will ; for that is the real meaning of those words — that having altered his will in one respect, he means to alter it in no other.® The question then is, whether the fourth codicil, so far as it is inconsistent with the will, is revoked in consequence of this reference by the fifth to the will, which indeed is the case of every codicil, which must refer to some will, the last in date, if no express date is mentioned; if there is, that of the particular date expressed. The case upon Lord Orford's will only determines that a codicil, referring to a former will as the last will, cancels intermediate wills. But the point contended in this case is, that it sets up all the will against a codicil revoking it in part. That case will not by any means bear out that argument. It is perfectly true that, if a man ratifies and confirms his last will, he ratifies and confirms it with every codicil that has been added to it. There is a great distinction between wills and codicils in this respect. If there are two separate papers, both called wills, inconsistent with each other, it is not the rule to prove both in the Ecclesiastical Court. The last is the will. From the na- ture of the instrument, it revokes the other. If the last purports to be the whole will, a complete, substantive will, they do not, I conceive, prove both. Unless there is something to show it was meant to be coupled with another instrument, it is not taken to be a codicil. But if it does purport to be coupled with another instrument, it is as much « The statement of facts Is omitted. » The words of the fifth codicil here referred to constituted the conclud- ing sentence of the codicil and were: "And I do hereby confirm my said will in all other respects." Ch. 8) THE RES'UBLICATION ANI> REVIVAL OF WILLS. 353 10 a part of that instrument as if it was written upon the same paper Many absurdities would follow from the contrary construction. Sup- pose the testator had by his will given a legacy of £300, and by a codi- cil had given the legatee £100 instead of the £200, and then should make another codicil, of this sort, merely changing an executor, and ratifying and confirming his will in all other respects. Is the legatee to have both the £200 and the £100? That must be contended. The true rule upon the subject appears to me to be as I have stated. The Solicitor General confesses that, if it was not for the case of Lord Walpole V. Lord Orford [supra], he should scarcely have been able to argue it; but he thinks that case affords him a sufficient ground. It dift'ers in this essential point. There was no question in that case upon a will and a codicil. The question was upon two inconsistent wills — one made in 1752, the other in 1756. The second has destroyed the first, unless the testator thought fit to revive it; By a codicil in 1776, he expressly declares it to be a codicil to his last will and testament, dated the 25th of November, 1752. That was held to cancel the in- termediate will. All that the courts of law, first the Court of Common Pleas, and afterwards the Court of King's Bench, determined, was, that evidence could not be admitted to prove the mistake, and that the testator did not mean to refer to the will, to which the codicil did expressly refer. It was said that it really arose from the mistake of the person employed to draw the codicil, who took the wrong will. Both the courts of law were of opinion they could not receive evi- dence of that; as the testator had solemnly declared, the will of 1753 was his last existing will.^^ It would not at all affect the case of any codicil made as an appendix to either of his two wills. If the will had dropped, perhaps a codicil, professedly a codicil to that will, would have dropped with it. That might have been a nice question — wheth- er a codicil, which in words referred only to the will of 1756, would not have fallen with that will. I will look into that case before Mon- day ; and if I see any reason to alter my opinion, I will mention it. Declare, that the annuities of £200 and £300, given by the will to Sarah Crosbie, were and remain revoked bv the fourth codicil The case was not mentioned agam. loThat a codicil, to be effective, need not be physically attached to the will, see 14 Am. & Eng. Ann. Cas. 472, note. 1 1 In In the Goods of Lady Isabella Gordon, [1892] P. 228, where by mistake a codicil executed in 1891 stated that it was a codicil to a will of 1887, which ■was revoked by a will of 1889, the will of 1889, and the codicil of 1891 with the reference to the will of 1887 omitted, were admitted to probate. Seer also. In the goods of Alfred Reade, [1902] P. 75. Cost. Wills— 23 354 LAST WILLS AND TESTAMENTS. (Part 1 GREEN V. TRIBE. (High Court of Justice, Chancery Divisiou, 1878. 9 Ch. D. 231.) Elizabeth Love, by her will dated the 9th of February, 1872, gave to trustees the sum of £1,000 upon trust to invest the same, and to pay the income to her niece, Ellen Love, during her life, and after her decease upon trust for her children as therein mentioned. And the testatrix devised her residuary real estate to trustees on trust for sale, and gave to the same trustees the residue of her personal estate, and the proceeds of the sale of her said real estate, upon trust as to two sixteenths thereof to pay the same unto her nephew Stephen Love, and as to two other sixteenths thereof upon such trusts for the benefit of her niece Ellen Love and her issue as were therein declared of the said sum of £1,000- bequeathed for her benefit. Elizabeth Love made a codicil dated the 27th of August, 1872, as follows : "This is a codicil to the last will and testament of me, Eliza- beth Love, of Filstone, in the parish of Shoreham, in the county of Kent, spinster, which will bears date the 9th of February, 1872. I do hereby revoke and make void every gift, devise, appointment, and be- quest made by me in and by my said will to or in favor of my niece Ellen Love and my nephew Stephen Love respectively. I confirm my said will in all other respects." Elizabeth Love made a second codicil dated the 14th of April, 1873, as follows : "This is a codicil to the last will and testament of me, Eliz- abeth Love, of the parish of Shoreham,- in the county of Kent, spinster. Whereas since the date of my said will I have purchased two mes- suages with the outbuildings, gardens, and premises thereto belonging, situate and being Nos. 5 and 6, Camden Villa, London Road, in the parish of Sevenoaks, in the county of Kent. And I have contracted to purchase two other messuages with the outbuildings, gardens, and premises thereto belonging, situate and being Nos. 9 and 10 Granville Road, in the said parish of Sevenoaks, but the purchase whereof has not yet been completed. Now I devise the said four messuages and premises respectively, with the appurtenances and all other the real estate, if any, which I have acquired or contracted to purchase since the date of my said will unto my brother Samuel Love, my brother-in- law John Tribe, my nephew Frank Green, and William Francis Hol- croft, the trustees and the executors named in my said will, and to their heirs, to, upon, and for the several uses, trusts, intents, and pur- poses in my said will expressed and contained of and concerning my residuary real estate (other than the messuage, cottage, and premises thereby devised to my said brother Samuel Love for his life as therein mentioned). And I declare that the produce of the sales of the mes- suages and hereditaments hereby devised as aforesaid shall fall into and form part of my residuary and personal estate thereby bequeathed and shall be divided in the same proportions and for the benefit of Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 355 the same parties as in my will is expressed and declared of and con- cerning my said residuary personal estate, and that each share respec- tively shall be subject to the same trusts, restrictions, and limitations over in all respects as the original share thereby bequeathed, and as if the share hereby bequeathed had actually formed part of my said re- siduary personal estate disposed of by my said will. In other respects I confirm my said will." Elizabeth Love died in September, 1873, and this action was brought for the administration of her estate. Two of the questions argued on the hearing were, whether the second codicil revoked the first codicil ; and if not, whether the messuages comprised in the second codicil would go according to the terms of the residuary devise in the will alone, in which case Stephen Love and Ellen Love would take each two sixteenths, or would go according to the will and first codicil together, in which case Stephen Love and Ellen Love would take nothing. P'ry, J. It appears from the statements made by the plaintiff, which are not disputed by the defendants, that the purchase, a recital of which is contained in the second codicil, had been made by the testa- trix after the 9th of February, 1872, the date of her original will, but before the 27th of August, 1872, the date of her first codicil. This being so, it appears to me that the second codicil must be read as if the last will and testament there referred to had been described by its proper date, and as if the testatrix had declared that the second codicil was a codicil to her last will and testament of the 9th of February, 1872. Upon this state of facts two questions have been raised before me, First, did the second codicil revoke the first codicil, and revive the original will in all its dispositions, and consequently restore Ellen Love and Stephen Love to the position of legatees under that will? Secondly, if this were not the case, was the real estate specifically mentioned in the second codicil devised upon the terms of the original will unaffected by the second codicil ? Both these questions must be determined by the answer to a third question, which is this : Assuming a testator to have made a will, to have made a first codicil modifying that will, to have made a second codicil describing his will by the date which the original instrument bore, and confirming that will, but observing an absolute silence with regard to the first codicil, what is the effect of the second codicil? Does it revive the first will as it originally stood, or does it confirm the original will as modified by the first codicil ? The general principle I take to be clear. On the one hand, where a testator in a codicil uses the word "will" abstractedly from the con- text, it will refer to all antecedent testamentary dispositions which together make the will of the testator, and consequently where the testator by a codicil confirms in general terms his Vn^III or his last will and testament, the will, together with all codicils, is taken to have been JJ56 LAST WILLS AND TESTAMENTS. (Part 1 confirmed. "The will of a man," said Lord Penzance in Lemage v. Goodban, Law Rep. 1 P. & M. 57, "is the aggregate of his testamen- tary intentions so far as they are manifested in writing, duly executed according to the statute." On the other hand, it is equally clear that the testator may by apt words express his intention to revoke any codi- cil already made, and to set up the original will unaffected by any codicil. The question, therefore, which I have to Consider is, whether the reference to the date of the original will is an indication of the intention to deprive all instruments other than the original will itself of any force — in face, whether such a reference to a will effects a revocation of the antecedent codicils. To this inquiry a series of cases appears to afford a clear negative answer. The first to which I desire to refer is the case of Crosbie v. Mac- doual, 4 Ves. 610. There the testator made a will and five codicils, and a' question arose as to the effect of the fifth codicil upon the fourth codicil, by which certain annuities had been given. The fifth codicil recited the making of the will and the date which it bore, substituted one executor in the place of another, was silent as to all antecedent codicils, and concluded by confirming the testator's said will in all other respects. The then Master of the Rolls held that the fourth codicil was not revoked by the fifth. This decision rested upon two propositions. The first, that if a man ratifies and confirms his last will he ratifies and confirms it with every codicil that has been added to it. The second, that the ratification of a will described by its date is a ratification of the will as modified by the codicils, and therefore does not revoke the codicils which were made between the date of the will and the confirming codicil. In the case of Smith v. Cunningham, 1 Add. 448, a similar question arose. There the testator made first a will, then five codicils in suc- cession, then a sixth codicil, by which he confirmed and republished his will and two codicils describing the will, and two codicils by the dates which they respectively bore, and it was held that the sixth codi- cil did not effect a revocation of the three unmentioned codicils. The court held, in the first place, that the intention to revoke must be clear and unequivocal ; in the second place, that no clear inference in favor of the revocation arose from the language of the sixth codicil ; and, thirdly, that, looking at all the circumstances to ascertain the intention of the testator as to what instruments should operate as and compose his last will, as the Court of Probate was in the habit of doing (Gree- nough V. Martin, 2 Add. 239), there was no intention to revoke. In In the Goods of De la Saussaye, Law Rep. 3 P. & M. 42, a case which came before Sir James Hannen in the year 1873, a similar point arose. The testator there first made a will, he then made three codi- cils in Spain, he then made a codicil in England by which, he revoked certain dispositions contained in his will, which he described as exe- cuted in London on the 12th of March, 1869, and concluded by con- firming the dispositions contained in his will of the 12th of March, Ch 8) THE REPUBLICATION AND REVIVAL OF WILLS. 357 1869, in whatever did not clash or interfere with the contents of that codicil. The question arose whether the express referencp to the will of the 12th of March, 1869, implied an intention on the part of the testator to revoke his Spanish codicils. The court held that it did not, on the ground that those codicils were to be deemed parts of the will, and were themselves confirmed by the ratification of the will of which they were modifications. In each of the cases which I have hitherto considered, as well as in the case before me, the- earlier codicil in question had a force of its own. It must prevail unless it be revoked by the subsequent codicil. But there is a class of cases closely akin to those I have been consid- ering, but different in this respect, that in them the earlier codicil has no proper vigor of its own, but derives its force, if at all, from the later codicil. The cases of the latter class are not uniform. First in point of date comes Gordon v. Lord Reay, 5 Sim. 274; there the testator made a charge on real estate by an unattested codicil, and by a subsequent codicil referred to his will by its date, and confirmed his will; and the Vice-Chancellor of England held that the first codicil was a part of the will, that the second codicil was a republication of the will, and consequently of the first codicil which was a part of it. In the case of Aaron v. Aaron, 3 Dc G.' & Sm. 475, the testator duly made a will ; he then made a codicil not duly attested varying the dis- positions of his will ; he then duly made a second codicil by which he recited that he had duly made and executed a will and codicil, describ- ing them by their respective dates, and then, after certain modifica- tions in his will, ratified and confirmed his "said will" in all other particulars thereof, saying nothing as to the ratification of his first codicil. The court held that the intention of the second codicil, as collected from the whole of it, was to confirm the first codicil so as to give effect to it as if it had been duly attested by three witnesses. The recital of the first codicil as having been duly executed was a strong circumstance in this decision. So far the current of authority seems to run smoothly. But in the recent case of Burton v. Newbery, 1 Ch. D. 234, the present Master of the Rolls took a different view. There the testator made a will be- fore the Wills Act, under which A. and B. took shares of the pro- ceeds of his real estates. By a codicil made after the Wills Act, he devised subsequently acquired realty on the trusts of his will. This codicil was attested by A. and B., who consequently were incapable of taking their shares under the codicil. By a second codicil, de- scribed as a codicil to his will dated the 1st of April, 1839, he gave a pecuniary legacy, and said nothing as to his first codicil. In this state of facts the Master of the Rolls held that the second codicil did not operate as a republication of the first. The only reference, he said, was to a will bearing date a certain day, that is, as I understand it, to a described instrument which excludes instruments of subsequent dates. It appears to me that the Master of the Rolls intended by this judg- 358 I^AST WILLS AND TESTAMENTS. (Part 1 ment to decide only that wheie recourse is had to a subsequent codicil to give vigor to an earher one, a mere reference to the will by its date will not operate upon the earlier and inoperative codicil so as' to set it up, and that he did not intend (as has been argued before me) to lay down that the confirmation of a will referred to by its date would revoke a pre-existing and valid codicil. Accordingly, I find him dissenting from the case of Gordon v. Lord Reay [supra], but refer- ring without disapproval to the earlier case of Crosbie v. Macdoual [supra]. The two classes of cases differ essentially. In the one the earlier codicil' has a proper force of its own ; in the other the earlier codicil must, if left to itself, fail. In the one class the question is, does the later codicil revoke the earher and operative one; in the other class you inquire, does the later codicil set up the earlier and inoperative one? To the one class of cases the principle applies that a clear dis- position is not to be revoked except by clear words ; to the other class this principle has no application. Doe v. Hicks, 8 Bing. 475 ; Farrer V. St. Catherine's College, Law Rep. 16 Eq. 19. I conclude, therefore, that the decision of the Master of the Rolls in Burton v. Newbery does not touch the case before me, and was not intended to touch the class of cases to which it belongs. The case of Crosbie v. Macdoual and the cases which have followed it appear to me to be right in principle. The character of a codicil is very peculiar. Its nature is not substantive but adjective. It is, as Mr. Justice Blackstone describes it (2 Bl. Com. [Kerr's Ed.] 450), "a supplement to a will, or an addition made by the testator, and annexed to and to be taken as part of a testament." A reference to the will therefore in itself carries with it a reference to that which is merely a supplement to or annexed to the will itself; and the mere fact that the testator describes the will by a reference to its original date, does not seem to me sufficient to exclude the inference that the will referred to is the will as modified by the codicils. This peculiar character of codicils is well illustrated by two cases in the ecclesiastical courts. In the case of Wade v. Nazer, 1 Rob. Ecc. 627, the testator executed first a will and then a codicil and then re- executed his will, and it was held that" the re-executed will took effect subject to the codicil, on the ground that it was a part of the will which was so re-executed. In the case of Upfill v. Marshall, 3 Curt. 636, the testator made a will, then a codicil, altering certain of its dis- positions, and then republished his will. It was held that the codicil was not revoked by the republication of the original will, and that for the same reason the codicil was a part of the republished will. One other argument remains for consideration. According to the construction which I place upon the second codicil, the property ex- pressed to be devised by it passed in sixteen shares in accordance with the will of the testator. I cannot yield to the argument pressed upon me that even if the first codicil was not revoked, the second codicil passed the after-acquired property on the trusts of the original will. Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 359 If I am right in thus holding, the codicil operated nothing, unless it be held to have restored the original will by revoking the first codicil, in which case it would have had the very material operation of restoring Ellen Love and Stephen Love to their position of legatees. The codi- cil ought, it may be suggested, to be construed so as to have some effect, and there being no other effect for it, it ought to be so construed as to revoke the first codicil, and thereby admit Ellen Love and Ste- phen Love to the benefit of the original dispositions intended for them. This argument ought not, I think, to prevail, because it appears to mc to be at variance with the expressed intentions of the testatrix. She recites in the codicil the circumstance which induced her to execute it, namely, the purchase of property since the date of her will, and the contract for purchase of other properties. She appears to have thought that this rendered it desirable to execute a codicil to her will, but it is impossible to suppose that if the real object had been to restore Ellen Love and Stephen Love to their original position as legatees, such an intention would not have been hinted at in the recitals which are introduced into the second codicil for the very purpose of explain- ing its object; I notice the argument, therefore, only for the pur- pose of rejecting it. The result is, that in my judgment the second codicil was absolutely inoperative. The will and first codicil must take effect with the whole of the real estate of which the testatrix died whether acquired before or after the date of her origin^io'^ll.^ In re CAMPBELl (Court of Appeals of New York, 1902. 170 N. Y. 84, 62 N. E. 1070.) Gray, J. This was a proceeding for the probate of a will and of a codicil of Ellen Campbell, deceased, and it therein appeared that she 12 See McLeod v. McNab, [1891] A. C. 471, where It was held that, while a reference in a codicil to a will by date was not sufficient in itself to exclude an intermediate codicil which revoked a particular beqii^st in the will, yet in the case at bar the reference would do that, as the circumstances and the oth- er language in the codicil showed that the testator did intend to exclude that intermediate codicil. ^ . „ . In Burton v. Newbery, 1 Ch. D. 235 (1875), gifts were made m a first codicil to two of the three attesting witnesses and to others. Later a second codicil was duly executed, which referred to the will by date, but did not mention the first codicil. While the first codicil was not wholly invalid, be- cause the Wills Act made only the gifts to the witnesses void, it was held, however, that the void gifts under the first codicil were not validated by the second codicil, since the first codicil was not republished by the second. But quEere? See the comment on Burton v. Newbery in the principal case. In Anderson v. Anderson, L. R. 13 Eq. Cas. 381 (1872). the will made a gift to the husband of a witness. A codicil was subsequently made, duly attested by other -witnesses, not referring specifically to the gift just men- tioned, but changing the terms of a gift to another person and confirming the will in other respects. It was held that the codicil republished the will, and made valid the gift to the husband of the witness to the will. 360 LAST WILLS AND TESTAMENTS. (Part 1 had executed, at difierent times, and there were existent, two wills and a codicil. On July 6, 1897, one will was executed; on July 19, 1899, another will was executed and on December 7, 1900, an instru- ment was executed by the testatrix, which declared itself to be a "codicil to the last will and testament of Miss EUen Campbell, which will bears date July 6, 1897." The will of 1899 modified, or changed, the provisions of the will of July, 1897, in respects relating to legacies given and in giving new legacies. Each of these wills was executed with the requisite statutory formalities and contained the usual revoca- tion clause. The codicil of 1900 modified some provisions of the will of 1897, expressly revoked others and added some legacies. It made no reference to the will of 1899. The will of 1897 and the codicil thereto of 1900 were admitted by the surrogate to probate, as consti- tuting the last will and testament of the deceased; while the will of 1899 was refused probate, as having been revoked. The conclusions of the surrogate in those respects were unanimously affirmed by the Appellate Division and the Home for Aged Men, a legatee under the will of 1899, appeals to this court from the decision below. Although it is found as a fact by the learned surrogate that^the testatrix, by the execution of the codicil in 1900, republished her will of July, 1897 ; nevertheless, the finding is, in its nature, a legal con- clusion from the facts and the question of law is in the case. It is contended, on the part of the appellant, that the statutory provisions with respect to the destruction, cancellation and revocation of a will, are applicable to the present case. 1 R. S. c. 6, tit. 1, art. 3, § 53. They, clearly, are not. Whether the earlier will was revived by the destruction of a later will is not the question ; nor does the validity of testatrix's action with respect to the prior will depend upon verbal declarations, as in the Matter of Stickney, 161 N. Y. 42, 55 N. E. 396, 76 Am. St. Rep. 246. The question is whether the execution by the testatrix of the codicil revived and republished the earlier will of 1897, a completely executed and existent instrument, so that the two instruments, together, con- stituted the final testamentary disposition of hei^ estate. That such is, generally, the effect of a codicil and that the will thereby republished speaks from the date of the codicil is a proposition settled upon au- thority. Van Cortlandt v. Kip, 1 Hill, 590 ; Brown v. Clark, 77 N. Y. 369 ; Matter of Conway, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796. That there intervenes, between the will referred to in the codicil and the codicil itself, another will, executed by the testatrix and, in terms, revoking other wills, does not aflfect the result; because the codicil to the earlier will implies its existence and effects, impliedly, if not expressly, the revocation of the intermediate will. Of course, there can be no question that the purpose of the testatrix was to re-establish her earlier will ; for the title given to the instru- ment, its subject-matter and the circumstances of its preparation, with the will before her, clearly indicate it, Equally clear, too, should it be Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 361 that the testatrix purposed the abandonment of her second will. There is no reason in the law why her manifest purpose should not be given effect. The object of the Statute of Wills is to effectuate that which is proved to be the last will of a deceased person. To that end, it pre- scribes certain formalities of execution, whereby the possibility of imposition, or of fraud, is minimized. When a codicil is executed with those formalities, it is a final testamentary disposition and the will, to which it is shown to be the codicil, if itself an existent and a completed instrument, according to the statute, is taken up and incor- porated; so that the two taken together are deemed to, and neces- sarily do, express the final testamentary intentions. In such a case, it must, logically and manifestly, follow that any other will, or codicil, prior in date to the codicil in probate, is revoked and the presence of express words to that effect, in the codicil, is unnecessary. See 1 AVil- Hams on Executors (6th Am. Ed.) pp. 251, 252; 1 Jarm. on Wills (5th Am. Ed.) *114-*191; Brown v. Clark, supra; In the Goods of Reynolds, L. R. 3 Probate & Divorce, 35. In Brown v. Clark, a married woman executed a codicil, which, ir terms, referred to and republished a will executed by her before hei marriage, and it was held that it effected a re-establishment and a valid publication of the will, whici!.i had been revoked as the effect, under the statute, of the marriage. In the English case cited. In the Goods of Reynolds, a will had been executed in 1866, and a codicil to it in 1871. Later, in 1871, another will was executed, revoking all pre- vious wills and codicils. In 1872, a codicil was executed, entitled: • "This is a codicil to the will of B. R., dated May, 1866." Probate was decreed of the will of 1866 and of the codicil of 1872, by which it had been revived. The codicil of May, 1871, was held not to be revived, as there was nothing to show such an intention. I think the judgment below is right and that it should be affirmed, with costs to the respondents, the Albany Historical and Art Society and the executors, to be paid out of the estate. Judgment affirmed.* IZARD V. HURST. (High Court of Chancery, 1697. 2 Freem. C. C. 224.) The defendant's testator by his will gave his four daughters £600 apiece, and afterwards married his eldest daughter to the plaintiff, and gave her i700 portion ; after that he makes a codicil and gives £100 apiece to his unmarried daughters, and thereby ratifies and confirms his will, and dies; and the plaintiff preferred his bill for the legacy of £600 given to his wife by the said will; and the only question was, * See Neff's Appeal, 48 Pa. 501 (1865). On the correction of a mistaken reference to a prior will, see note 11 to Orosbie v. MacDoual, ante, pp. 352, 35a 362 LAST WILLS AND TESTAMENTS. (Parti whether the portion given by the testator in his lifetime, should be intended in satisfaction of the legacy? And held [by Sir John Trevor, M. R.] that it should; and agreed to be the constant rule of this court, that where a legacy was given to a child, who afterwards upon marriage or otherwise had the like or a greater sum, it should be intended in satisfaction of the legacy, unless the testator should declare his intent to be otherwise ; and it was* said the words of ratifying and confirming do not alter the case, though they amount to a new publication, being only words of form, and de- clare nothing of the testator's intent in this matter.^^ 13 gee Tanton v. Keller, 167 111. 129, 47 N. E. 376 (1897) ; Langdon v. Astor'a Ex'rs, 16 N. Y. 9 (1857). Compare Trustees v. Tufts, 151 Mass. 76, 23 N. E. 1(K)7, 7 L. R. A. 390 (1800). "It has been argued that the codicil of the 23d of June. 1818. confirming the will, makes the will speak as of the date of the codicil, and therefore revives the legacy, if it had been adeemed by the settlement, and at all events is evidence of an intention that the legacy should take effect. It is very true that a codicil republishing a will makes the will speak as from its own date for the purpose of passing after-acquired lands, but not for the purpose of reviving a legacy revoked, adeemed, or satisfied. The codicil can only act upon the will as it existed at the time: and, at the time, the legacy revoked, adeemed, or satisfied formed no part of it. Any other rule would make a codicil, merely republishing a will, operate as a new bequest, and so revoke any codicil by which a legacy given by the will had been revoked, and undo every act by which it may have been adeemed or satisfied." Lord Cottenham. in Powys v. Mansfield, 3 Myl. & Cr. 359, 375, 376 (1837). In Hubbard v. Hubbard, 198 111. 621, 64 N. E. 1038 (1902), a codicil con- firming a will was held not to restore a bequest in the will stricken out by the testator prior to the execution of the codicil. On the effect of republica- tion on lapsed legacies, see 1 Jarman on Wills (5th Am. "Ed.) *200. Curative Effect of a Codicil.— While an adeemed gift will not be re- newed by mere republication of the will by a codicil, a will bad for want of testamentary capacity may be rendered good by a codicil republishing it. "It is clear, from this evidence, that the issue made up on the appeal from the ordiuaiT involved the validity of the codicil, as w^ell as the will. * * * This is manifest from the consideration that, although the will, when exe- cuted, might be bad, or the testator might be non compos mentis, or under duress or undue influence, at its execution, yet if he was sane and free from duress or undue influence when he executed the codicil, that would be a republication and confirmation of the will, and would free it from the ob- jection to which it was liable at its execution." Evans. J., in Farr v. b'Neall, 1 Rich. Law rs. C.) SO, 89 (1844). See Taylor v. Kelly, 31 Ala. 59, 08 Am. Dec. 150 (1857). If a will be vitiated by undue influence, nothing short of republication will validate it. Lamb v. Girtman. 26 Ga. 625 (1859); Chaddick v. Haley, 81 Tex. 617, 17 S. W. 233 (1891). But where a testator retains a will unrevoked, when he is free from undue influence and has ample opportunity to revoke it, a presumption that there was no undue influence in its execution may be Indulged. Kelly v. Thewles, 2 Ir. Ch. 510 (18.52). A duly executed codicil, of course, covers other defects in jurisdictions recog- nizing the doctrine of incorpm-ation by refei'ence. In Walton's Estate, 194 Pa. 528, 5.33, 45 Atl. 426, 428 (1900), for instance, the court said: "There was a grave irregularity in the execution of the first codicil. One of the subscribing witnesses did not attest it iu tlie presence of the testatrix. But there was a subsequent codicil, properly executed and attested, and that codicil contained an express republication of both the will and the first codicil, and the latter instrument was thereby validated." But the New York and the Connecticut rule must be borne in mind. See In re Emmons' Will. ante. p. 349. Ch. 8) THE EEPUBLTCATION AND REVIVAL OP WILLS. 363 GURNEY V. GURNEY. (High Court of Chancery, 1855. 3 Drew. Ch. 208.) Thomas Gurney made his will on the 6th April, 1853, and by it, among other legacies, he gave £100 to Richard Fry. He gave also a share of his residue to W. G. Temple. Neither Fry nor Temple attested the will. The testator made two codicils, both of which were attested by Fry and Temple. By the first codicil the testator revoked certain bequests, the effect of which was to swell the residue. Among other questions on the will this question arose: Whether the legacy to Fry was avoided by his attesting the codicils ; and whether the title of Temple to a sliare of the residue was affected by his attesting the codicils ? The Vice Chancellor [Sir R. T. Kindersley], after stating the facts and referring to the Wills Act, proceeded: Now the word "thereby," referring as it does to the words pre- ceding, must be construed to mean by the same testamentary instru- ment which is attested; and that does not apply to the case where a legatee has not attested the instrument by which he takes his legacy, but only where he has attested the same instrument under which he takes. I think, therefore, that the legacy to Fry is not void under the statute. Then there is another case of the same description re- lating to another person who witnessed one of the codicils, viz., Tem- ple. The testator by his will gave his residue in equal shares among his brothers and sisters for their lives, and on their deaths to go among their respective children ; and Temple, who attested the codicil, was a child of one of the sisters, and under the will he was therefore entitled to a share of the residuary estate. By the codicil the testator revoked a legacy, the effect of which was to increase the shares of those who were entitled to the residue, and Temple, who was ben- efited by this increase, attested the codicil. The question is, what is the effect of the statute on this state of things? It appears to me that I am not to extend the operation of the stat- ute, but to look at what is the fair interpretation of the words ; and the question is whether, by the codicil so attested, any beneficial devise, legacy, estate, interest, gift or appointment is given or made to the legatee who attested it. I think that the effect of the codicil does not amount to any beneficial devise, legacy, estate, interest, gift or ap- pointment given or made to Temple, and therefore that Temple's case is not within the statute.^* 14 See Tempest v. Tempest, 2 K. & J. 635 (1856). Compare Anderson v.. Anderson, L. R. 13 Eq. Cas. 381 (1872). 364 LAST WILLS AND TESTAMENTS. (Part 1 In re McCAULEY'S ESTATE. Appeal of STATE. ^Supreme CJourt of California, 1903. 138 Oal. 432, 71 Pac. 512.) Chipman, C. Jennie C. McCauley duly executed a will on Feb- ruary 12, 1900, in which she, among others, made several bequests to charitable institutions. On March 16, 1900, she duly executed a codicil to this will. She died April 14, 1900, 28 days after the execu- tion of the codicil. The state, by the attorney general, filed objec- tions and contest to the petition for final distribution, so far as con- cerned the charitable bequests, and prayed that they be adjudged void, and that they be distributed to the state for the support of the com- mon schools. The trial court adjudged the said bequests to be valid, and decreed distribution accordingly. The state appeals from the de- cree. The codicil did not attempt to change any of the charitable bequests, or any of the general provisions of the will, but related solely to spe- cific bequests and devises to certain individual legatees. It stated that "the foregoing codicil * * * \y2ls, at the date hereof, * * * signed, sealed, and published as, and declared to be, together with the will set forth on the preceding pages, to be her last will and testa- ment," etc. Section 1313, Civ, Code, provides as follows: "No estate, real or personal, shall be bequeathed or devised to any charitable or benevo- lent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator." Section 1287 of the same Code reads as follows: "The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil." The testatrix left "no relatives or next of kin," as she declared in her will, and, as seems to be conceded by respondents, the bequests in question will escheat if, as to such bequests, the will is invalid. Appellant's contention is "that the effect of the republication of the will by the codicil of March 16, 1900, and the testatrix dying in less than 30 days thereafter, is to invalidate all the bequests to charity con- tained in the will." Appellant cites numerous cases to the effect that the codicil brings the will to it, and makes it the will from the date of the codicil. Some of the cases speak of the codicil as a republica- tion of the whole will at the date of the codicil. Still others hold that the codicil operates as a republication of the will, the effect of which is to bring down the will to the date of the codicil, so that both in- struments are to be considered as speaking at the same date, and taking effect at the same time. Payne v. Payne, 18 Cal. 292, at page 302, and In re Ladd, 94 Cal. 670, 30 Pac. 99, are cited as in line with the authorities elsewhere holding as above stated. Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 365 In the Ladd Case it was said that "the execution of the codicil had the effect 'to republish the will as modified by the codicil' (Civ. Code, § 1287) as of the date of the codicil (Payne v. Payne, 18 Cal. 302)." Again: "The effect of its execution was to republish the entire will, and not merely the clause so modified, 'as if the testator had inserted in the codicil all the words of the will.' " Doe v. Walker, 12 Mees. & W. 597. In giving construction to the will it was said that "the whole of the original will and the codicil are to be construed as a single instrument executed at the date of the codicil, and of which all the parts are to be construed, 'so as, if possible, to form one consistent whole.' " Civ. Code, § 1321. But it was also said : "A codicil is never construed to disturb the dispositions of the will further than is abso- lutely necessary for the purpose of giving effect to the codicil. 1 Jar- man on Wills, 176. 'The dispositions made by a will are not to be disturbed by a codicil further than is absolutely necessary in order to give it effect, and a clear disposition made by the will is not revoked by a doubtful expression or inconsistent disposition in a codicil.' Kane V. Astor's Ex'rs, 5 Sandf. (N. Y.) 533. 'The different parts of a will, or of a will and codicil, shall be reconciled if possible ; and, where a bequest has once been made, it shall not be revoked, unless no other construction can fairly be put upon the language used by the testator. Colt V. Colt, 32 Conn. 446. See, also, Wetmore v. Parker, 52 N. Y. 462; Johns Hopkins University v. Pinckney, 55 Md. 365.'" No one for a moment can suppose that the codicil in the present will was intended to disturb the bequests made in the original will in aid of the charities named. These bequests were not only left un- touched by the codicil, but the testatrix declared that "the foregoing codicil * * * was * * * published as, and declared to be, to- gether with the will set forth on the preceding pages, to be her last will." That the testatrix intended her bequests first made in the will to stand unaffected by the codicil can admit of no doubt, and yet we are asked to give such construction to section 1287 as shall destroy a large number of her bequests, and practically nullify the testatrix's clearly expressed intention with respect to them. We have seen that no such construction can be given to the codicil itself. Can we — or, rather, are we compelled to — so construe the statute as to destroy these bequests, and thus thwart the design of the testator? Section 1292 provides that: "Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or al- tered otherwise than: (1) By a written will, or other writing of the testator, declaring such revocation or alteration; * * * or, (2) by being * * * destroyed, with the intent and for the purpose of revoking. * * *" And section 1317 provides that: "A will is to be construed according to the intention of the testator. Where his in- tention cannot have effect to its full extent, it must have effect as far as possible." 366 LAST WILLS AND TESTAMENTS. (Part 1 In construing section 1287, we must keep in view the various sec- tions relating to the subject of wills, and must so construe that sec- tion as to preserve the letter and spirit of all the provisions of the statute so far as possible. The section should have such construction, if it is possible in reason to do so, as will carry out the known in- tention of the testator. Section 1313 invalidates the charitable bequest unless the will is "duly executed at least thirty days before the de- cease of the testator." When the will is once "duly executed," it re- mains the will of the testator until revoked. This may be done as pre- scribed in section 1292. A codicil does not disturb the will except so far as it is inconsistent with it, or in terms or by necessary intendment revokes it. As was said in the Ladd Case : "Where a bequest has once been made, it shall not be revoked unless no other construction can fairly be put upon the language used by the testator." For some purposes, no doubt, the will speaks from the date of the codicil, but this is true only so far as the codicil requires that it should so speak. It is entirely consistent with the statute and the codicil now before us that the contested bequests should stand as made of the date of the will. The testatrix declared the will as first executed to be her will, except as to the changes made in the codicil, and the statute (section 1287) says that the effect of the codicil is "to republish the will, as modified by the codicil," and not otherwise. To construe the statute, as is contended for by appel- lant, is to leave a large part of the estate undisposed of, as well as to defeat the object of the testatrix. We do not think it should be given any such construction. A statute of Pennsylvania, referred to as the act of April 26, 1855 (P. L. 332), provided: "No estate,^ real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic or to any per- son in trust for religious or charitable uses, except the same be done by deed or will attested by two credible witnesses, at least one cal- endar month before the decease of the testator or alienor." In 1879 an act was passed in that state by which it was provided "that every will shall be construed with reference to the real or personal estate comprised in it to speak and take effect as if it had been executed im- mediately before the death of the testator." In Carl's Appeal, 106 Pa. 635, the will was executed September 6, 1877. A codicil was executed March 14, 1881, and the testator died April 4, 1881. It was contended that the charitable bequests of the will were void. In construing the act of 1879 with that of 1855, the orphans' court, Gibson, J., speaking of the effect of the republica- tion of a will by a codicil, said : "There is a class of cases about which there can be no contention; such as Neff's Appeal, 48 Pa 501, in which the question was whether the codicil revoked a second will and republished an earlier will on which it was written. * * * But we find that in all other cases, since the modern statutes of wills, which Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 367 may arise out of the execution of a codicil, questions regarding the intention of the testator are involved to such an extent as to qualify the rule invoked here materially" — citing instances, in one of which (Alsop's Appeal, 9 Pa. 374) this distinction is shown: "That though, for some purposes, a will and codicil are to be regarded as making but one testament, they will not be considered as a single instrument where a manifest intention requires otherwise." Other cases are cited to show, for example, that the first will would have been revoked by the second will, but for the codicil which gave it life; "and yet it did not affect the validity of the charitable bequests in the first will. This could only be on the ground of its being a sep- arate instrument." Hamilton's Estate, 74 Pa. 69, and Bradish v. Mc- Clellan, 100 Pa. 607; Neff's Appeal, supra. The learned justice con- cludes: "The question raised here as to the period from which this will speaks, based upon the doctrine of republication by a codicil, would make void the charitable bequest given by the original will, contrary to the intention of the testatrix. The very act of republica- tion ipso facto would make null and void that which republication by intendment of law reaffirms. I think the validity of the residuary be- quest * * * is not affected in any way by the codicil, and that it does not bring the bequest within the prohibition of the act of 1855." On appeal the views of the orphans' court were fully indorsed. In further support of the decree it was said: "The fault of the oppos- ing counsel lies in confounding a legal fiction with a physical fact. Of course, all wills must speak as of the time of the testator's death. It is a pure legal fiction that they were executed at that time. The fact of actual execution remains, and is entirely unaffected by the fic- tion. Whenever the factum is material, of its own force, in deter- mining results, it will be treated as of the date of its actual occur- rence." Our statute (section 1287, Civ. Code) certainly does not, by its terms, compel the construction urged by the attorney general. To give to it such construction we must import into the statute a legal fiction. This we might do in some cases, but not where it would re- sult in defeating the clearly expressed intention of the testatrix. The judgment should be affirmed. Per Curiam. For the reasons given in the foregoing opinion, the judgment is afiirmed.^" IB See Slo.in's Appeal, Watt's Estate, 16S Pa. 422, 32 Atl. 42, 47 Am. St. Eep. 8S9 (1S0.5) ; In re I\Ioore (Long v. Moore), [1907] 1 Ir. R. 315. In the latter case the court, by Barton, J., said: "Republication gives to tlie will a fresh starting point, but it does not erase the old date. Nor does it, in my opinion, falsify the fact that the will contained a particular devise and was executed at a particular time. * * * lu short, the aim of the court has always been to apply the rules as to republication with good sense and dis- crimination, for the purpose of as far as possible effectuating up to date the intentions of testators. But the real date and the real facts connected with the original execution of the will are not altered or falsified." Pages 318, 320. 368 , LAST WILLS AND TESTAMENTS. (Part 1 SECTION 3.-^REVIVAL PICKENS V. DAVIS. Supreme Judicial Court of Massachusetts, 1883. 134 Mass. 252, 45 Am. Rep. 322.) Appeal from a decree of the probate court, allowing the will of Mary Davis. C. Allen, J. The two questions in this case are, first, whether the cancellation of a will, which was duly executed, and which contained a clause expressly revoking former wills, has the effect, as matter of law, to revive a former will which has not been destroyed, or whether in each instance it is to be regarded as a question of intention, to be collected from all the circumstances of the case; and secondly, if it ■s to be regarded as a question of intention, whether subsequent oral declarations of the testator are admissible in evidence for the purpose of showing what his intention was. These are open questions in this commonwealth. In Reid v. Borland, 14 Mass. 208, the second will was invalid, for want of due attestation. In Laughton v. Atkins, 1 Pick. 535, the second will was adjudged to be null and void, as hav- ing been procured through undue influence and fraud ; and the whole decision went upon the ground that it was never valid, and could not be. The first of these questions has been much discussed, both in Eng- land and America ; and it has often been said that the courts of com- mon law and the ecclesiastical courts in England are at variance upon it. See 1 Wms. on Executors (5th Am. Ed.) 154-156, where the au- thorities are cited. The doctrine of the ecclesiastical courts was thus stated in 1824 in Usticke v. Bawden, 2 Add. Ecc. 116, 125: "The legal presumption is neither adverse to, nor in favor of, the revival of a former uncancelled, upon the cancellation of a later, revocatory, will. Having furnished this principle, the law withdraws altogether; and leaves the question, as one of intention purely, and open to a decision, either way, solely according to facts and circumstances." See, also, Moore v. Moore, 1 Phillim. 406 ; Wilson v. Wilson, 3 Phil- lim. 543, 554 ; Hooton v. Head, 3 Phillim. 26 ; Kirkcudbright v. Kirk- cudbright, 1 Hagg. Ecc. 325 ; Welch v. Phillips, 1 Moore P. C. 299. In Powell on Dev. (Ed. of 1827) 527, 528, a distinction is taken be- tween the effect of the cancellation of a second will which contains no express clause revoking former wills, and of a will which contains such a clause; and in respect to the latter it is said that, "if a prior will be made, and then a subsequent one expressly revoking the for- mer, in such case, although the first will be left entire, and the sec- ond will afterwards cancelled, yet the better opinion seems to be, that Ch. 8) THE KEPDBLICATION AND REVIVAL OF WILLS. 36^ the former is not thereby set up again." Jarman's note questions the soundness of the above doctrine (page 529, note). While this apparent discrepancy in the respective courts remained not fully reconciled, in 1837, the English Statute of Wills was passed (St. 7 Wm. IV. & 1 Vict. c. 26), section 22 of which 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 executed in manner hereinbefore required, and show- ing an intention to revive the same." Since the enactment of this statute, the decisions in all the courts have been uniform, that after the execution of a subsequent will which contained an express revoca- tion, or which by reason of inconsistent provisions amounted to an implied revocation, of a former will, such former will would not be revived by the cancellation or destruction of the later one. Major v. Williams, 3 Curt. Ecc. 432; James v. Cohen, 3 Curt. Ecc. 770, 782; Brown v. Brown, 8 El. & Bl. 876 ; Dickinson v. Swatman, 30 L. J. (N. S.) P. & M. 84; Wood v. Wood, E. R. 1 P. & D. 309. In order to have the effect of revocation, it must of course be made to appear that the later will contained a revocatory clause, or provisions which were inconsistent with the former will ; and the mere fact of the execution of a subsequent will, without evidence of its contents, has been considered insufificient to amount to a revocation. Cutto v. Gil- bert, 9 Moore, P. C. 131. See, also. Nelson v. McGiffert, 3 Barb. Ch. (N. Y.) 158, 49 Am. Dec. 170. In the United States, there is a like discrepancy in the decisions in diiYerent states, though the clear preponderance appears to be in favor of a doctrine substantially like that established in the ecclesiastical ■ courts. This rule was established in Connecticut, in 1821, in James V. ]\Iarvin, 3 Conn. 576, where it was held that the revocatory clause in the second will, proprio vigore, operated instantaneously to effect a revocation, and that the destruction of the second will did not set up the former one ; and the like rule was declared to exist in New York, by the Supreme Court of that state, in 1857, in Simmons v. Simmons, 26 Barb. 68. The question was greatly considered in Maryland, in 1863, in Colvin v. Warford, 20 Md. 357, 391, and the court declared that "a. clause in a subsequent will, which in terms revokes a previous will, is not only an expression of the purpose to revoke the previous will, but an actual consummation of it, and the revocation is complete and conclusive, without regard to the testamentary provisions of the will containing it." The court further held that the cancellation of a revoking will, prima facie, is evidence of an intention to revive the previous will, but the presumption may be rebutted by evidence of the attending circumstances and probable motives of the testator. In Harwell v. Lively, 30 Ga. 315, 76 Am. Dec. 649, in 1860, a similar rule was laid down, and maintained with great force of reasoning. Thai opinion of the court concludes v/ith the following pertinent sugges- CoST. Wills— 24 370 LAST V.ILLS AND TESTAMENTS. (Part 1 tion : "It must be conceded there is much law adverse to the doctrine. * * * Calculated as it is to subserve and enforce the tenor and spirit of our own legislation, and to give to our people the full benefit of the two hundred years' experience of the mother country, as em- bodied in the late act, is it not the dictate of wisdom to begin in this state where they have ended in England? We think so." See, also, Barksdale v. Hopkins, 23 Ga. 332. The courts of Mississippi, in 1836, and of Michigan, in 1881, adopted the same rule. Bohanon v. Walcot, 1 How. (Miss.) 336, 29 Am. Dec. 631; Scott v. Fink, 45 Mich. 241, 7 N. W. 799. It is to be observed, that some of the foregoing decisions are put expressly on the ground that the later will contained an express clause of revocation. 45 Mich. 246, 7 N. W. 799; 20 Md. 392. An ex- amination of the cases decided in Pennsylvania leads us to infer that a similar rule would probably have been adopted in that state, if the question had been directly presented. Lawson v. Morrison, 2 Dall. 286, 290, 1 L. Ed. 384, 1 Am. Dec. 288; Boudinot v. Bradford, 2 Yeates, 170, s. c. 2 Dall. 266, 1 L. Ed. 375; Flintham v. Bradford, 10 Pa. 82, 85, 92. On the other hand, in Taylor v. Taylor, 2 Nott & McC. 482, in 1820, it was held in South Carolina that the earlier will revives upon the cancellation of the later one; and the same rule prevails in New Jersey, as is shown by Randall v. Beatty, 31 N. J. Eq. 643, and cases there cited. In various states of the Union statutes have been enacted substan- tially to the same effect as the English statute above cited, showing that wherever, so far as our observation has extended, the subject has been dealt with by legislation, it has been thought wiser and bet- ter to provide that an earlier will shall not be revived by the can- cellation of a later one. There are, or have been, such statutes in New York, Ohio, Indiana, Missouri, Kentucky, California, Arkansas, and Virginia, and probably in other states. Concerning these statutes of New York, it is said in 4 Kent, Com. 532, that they "have essentially changed the law on the subject of these constructive revocations, and rescued it from the hard operation of those technical rules of which we have complained, and placed it on juster and more rational grounds." On the whole, the question being an open one in this state, a major- ity of the court has come to the conclusion that the destruction of the second will in the present case would not have the effect to revive the first, in the absence of evidence to show that such was the inten- tion of the testator. The clause of revocation is not necessarily testa- mentary in its character. It might as well be executed as a separate instrument. The fact that it is inserted in a will does not necessarily show that the testator intended that it should be dependent on the continuance in force of all the other provisions by which his property Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 371 is disposed of. It is more reasonable and natural to assume that such revocatory clause shows emphatically 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 mod- ified, shall stand as representing his wishes upon the subject. But when the new plan is in its turn abandoned, 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 artificial presumption, created originally for the purpose of preventing intestacy, that such a rule of law has ever been held. It does not correctly represent the actual operation of the minds of testators, in the majority of instances. The wisdom which has come from experience, in England and in this country, seems to point the other way. In the absence of any statutory provision to the contrary, we are inclined to the opinion that such intention, if proved to have existed at the time of cancelling the second will, would give to the act of such cancellation the effect of reviving the former v/ill ; and that it would be open to prove such intention by parol evidence. Un- der the statute of England, and of Virginia, and perhaps of other states, such revival cannot be proved in this manner. Major v. Wil- liams, and Dickinson v. Swatman, above cited ; Rudisill v. Rodes, 29 Grat. (Va.) 147. But this results from the express provision of the statute. In the present case, there was no evidence tending to show that the testatrix intended to revive the first will ; unless the bare fact that the first will had not been destroyed amounted to such evidence. Under the circumstances stated in the report, little weight should be given to that fact. The will was not in the custody of the testatrix, and the evidence tended strongly to show that she supposed it to have been destroyed. The question, therefore, is not very important, in this case, whether the subsequent declarations of the testatrix were admissible in evi- dence for the purpose of showing that she did not intend, by her can- cellation of the second will, to revive the first ; because, in the absence of any affirmative evidence to prove the existence of such intention, the first will could not be admitted to probate. Nevertheless we have considered the question, and are of opinion that such declarations were admissible for the purpose of showing the intent with which the act was done. The act itself was consistent with an intention to revive, or not to revive, the earlier will. Whether it had the one effect, or the other, depended upon what was in the mind of the testatrix. It would in many instances be more satisfactory to have some decisive declara- tion made at the very time, and showing clearly the character of the act. Evidence of declarations made at other times is to be received with caution. They may have been made for the very purpose of misleading the hearer as to the disposition which the speaker meant 372 LAST WILLS AND TESTAMENTS. (Part 1 to make of his property. On the other hand, they may have been made under such circumstances as to furnish an entirely satisfactory proof of his real purpose. It is true, that it may not be proper to prove the direct act of cancellation, destruction or revocation in this manner. But when there is other evidence of an act of revocation, and when the question of the revival of an earlier will depends upon the intention of the testator, which is to be gathered from facts and circumstances, his declarations, showing such intention, whether prior, contemporaneous, or subsequent, may be proved in evidence. In the great case of Sugden v. St. Leonards, 1 P. D. 154, the ques- tion underwent full discussion, in 1876, whether written and oral dec- larations made by a testator, both before and after the execution of his will are, in the event of its loss, admissible as secondary evidence of its contents; and it was decided in the affirmative. It was admit- ted in the argument, at one stage of the discussion, that such subse- quent declarations would be admissible to rebut a presumption of revocation of the will; but, this being afterwards questioned, it was declared and held, on the greatest consideration, not only that these, but also that declarations as to the contents of the will, were admis- sible. See pages 174, 198, 200, 214, 215, 219, 220, 225, 227, 228, 240, 241. The case of Keen v. Keen, L. R. 3 P. & D. 105, is to the same effect. See, also, Gould v. Lakes, 6 P. D. 1 ; Doe v. Allen, 12 A. & E. 451 ; Usticke v. Bawden, 2 Add. Ecc. 123 ; Welch v. Phillips, 1 Moore, P. C. 299; Whiteley v. King, 10 Jur. (N. S.) 1079; Re John- son's Will, 40 Conn. 587 ; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460; Patterson v. Hickey, 32 Ga. 156; 1 Jarm. Wills (5th Am. Ed. by Bigelow), 130, 133, 134, 142, and notes. The question was also dis- cussed, and many cases were cited in Collagan v. Burns, 57 Me. 449, but the court was equally divided in opinion. Many, though not all, of the cases, which at first sight may appear to hold the contrary, will be found on examination to hold merely that the direct fact of revocation cannot be proved by such declarations. The result is, that, in the opinion of a majority of the court, the will should be disallowed, and the decree of the probate court re- versed.^* STETSON et al. v. STETSON et al. (Supreme Court of Illinois, 1903. 200 111. 601, 66 N. E. 262, 61 L. R. A. 258.) Magruder, C. J." * * * The sole ground upon which the va- lidity of the will of December 3, 1897, duly admitted to probate, is contested, is that a subsequent will was executed by the testator, con- ic On revival by the revocation of the revoking will, see 37 L. R. A. 575, note; 14 L. R. A. (N. S.) 937, note; 4 Am. & Eng. Ann. Cas. 313, note; 13 Prob. Rep. Ann. 28, note. iTThe statement of facts is omitted, and part only of the opinion is given. Ch. 8) THE REPUBLICATION AND REVIVAL, OF WILLS. 373 taining a clause revoking all former vi^ills. Such subsequent will, al- leged to have been executed between September 1, 1898, and the death of the testator, has been lost or destroyed ; or, at any rate, it was not found in the possession of the testator, and has never been produced, either for probate in the county court, or otherwise. The question presented for our consideration, and raised by the refusal of the court below to hold as law the propositions submitted by the appellants, and by the rulings of the court below in the admis- sion and exclusion of evidence, is twofold in its character, and, as formulated in the briefs of counsel on both sides, may be thus stated: If the second will made by Jesse Stetson contained an express clause of revocation,' did such clause operate at once, and of its own force, to immediately revoke and annul the first will, made on December 3, 1897; and did the loss or destruction of the second will, containing such clause or revocation, even though such loss or destruction was the act of the testator himself, operate to revive the former will dated December 3, 1897? Perhaps in no branch of the law is there more conflict among the decisions of the courts than in that which relates to the revocation of a former will by a subsequent will, and to the ef- fect of the cancellation of a subsequent revoking will in reference to the revival or nonrevival thereby of the first will. There are cases which hold — and many of the text-books indorse and sustain the holdings of such cases — that where a person, having made a will, afterwards makes another will, containing a clause ex- pressly revoking all former wills, and afterwards destroys the second will, and dies, leaving the former will uncanceled, the revoking clause operates instantaneously to effect a revocation ; and that, consequently, the destruction of the second will does not revive the former one. 1 Underbill on Wills, § 266; Schouler on Wills, §§ 412^418; James V. Marvin, 3 Conn. 577 ; Scott v. Fink, 45 Mich. 241, 7 N. W. 799 ; Cheever v. North, 106 Mich. 390, 64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499 ; Hawes v. Nicholas, 72 Tex. 481, 10 S. W. 558, 2 L. R. A. 863; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; Barksdale v. Hopkins, 23 Ga. 332. Many of the cases which thus hold that the loss or destruction by the testator himself of a subsequent will containing a revoking clause does not revive a former will, though found in the possession of the testator, uncanceled, at his death, are based upon statutes dissimilar to the Illinois statute upon this subject, and upon considerations which have no force or application in this state and under our decisions. In England what is known as the "Statute of Victoria," passed in 1837, provided (chapter 26, § 22) that "no will or codicil, or any part there- of, which shall be in any manner revoked, shall 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," etc. 29 Am. & Eng. Ency. of Law, p. 289, note 2. Some 13 of the American states have adopted either the statute of Victoria or a sim- 374 LAST WILLS AND TESTAMENTS. (Part 1 ilar statute upon this subject. But no such statute was ever passed or adopted in this state. In some of the cases a distinction is drawn between a subsequent will, whose provisions are inconsistent with the former will, thereby- operating to effect a revocation by implication, and a subsequent will which contains a clause expressly revoking all former wills. This distinction, however, is done away with under the terms of the Illinois statute. Section 17 of the Illinois statute of wills provides as fol- lows : "No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence ; and no words spoken shall revoke or annul any will, testament or codicil in writing, ex- ecuted as aforesaid, in due form of law." 3 Starr & C. Ann. St. (2d Ed.) pp. 4044, 4045. By the terms of this statute the subsequent will, which shall have the effect of revoking a former will, must be a will "declaring the same" ; that is to say, must be a will which, upon its face and by its terms, declares a revocation. If the will must expressly contain a clause revoking all former wills, the question as to any inconsistency between the provisions of the later will and the former will is imma- terial. Again, many of the cases are based upon statutes which authorize the revocation of a will to be made by a subsequent writing which is not necessarily a will, or testamentary in its character. A large part of the American legislation upon this subject has its basis in the Eng- lish statute of frauds, by one of the provisions of which "no devise in writing of lands, tenements or hereditaments, nor any clause there- of, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same," etc. 1 Underbill on Wills, § 247. It will be noticed that by the terms of this statute a devise in writing of lands, etc., may be revoked, not only by some other will or codicil in writing, but by some "other writing declaring the same"; in other words, the writing declaring the revocation may be some other writing than a will or codicil. Where the instrument of revocation is not necessarily, by the terms of the statute, a will, it may have the effect of operating instantaneously, so as to effect a revocation before the death of the testator; and if the instrument of revocation may be in writing, it will make no difference that its terms are embodied in a will, rather than in some other writing, which is not a will. For example, one of the cases relied upon by counsel for appellants to support their contention upon this subject is the case of In re Cun- ningham, 38 Minn. 1G9, 36 N. W. 269, 8 Am. St. Rep. 650, where the Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 875 court say: "The testator might effectually revoke his former will by a writing so declaring, and executed as this instrument was executed (Gen, St. 1878, c. 47, § 9), as he might also by other means." By reference to section 9 of chapter 47 of the General Statutes of Min- nesota of 1878 it is found that a will may be revoked "by some will, codicil or other writing signed, attested and subscribed in the manner provided for the execution of a will." By section 17, however, of the Illinois statute of wills, the revocation must be by a will declaring such 'revocation, and not by some other writing than a will, which may not be testamentary in its character. So, also, in Cheever v. North, 106 Mich. 393, 64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499, it appears that by the terms of the Michigan statute a former will may be revoked not only by a subsequent will, but "by some other writing signed, attested and subscribed in the manner provided in this chap- ter for the execution of a will." The case of Scott v. Fink, 45 Mich. 241, 7 N. W. 799, is based largely upon the case of James v. Marvin, 3 Conn. 576 ; but the latter case of James v. Marvin has been mate- rially weakened, if not actually overruled, by the subsequent case of Peck's Appeal from Probate, 50 Conn. 563, 47 Am. Rep. 685. In Peck's Appeal from Probate, supra, the criticism of James v. Marvin, supra, made by Redfield in his work on Wills, is referred to and quoted ; and there the Supreme Court of Connecticut say : "The weight of authoritv seems to be in harmonv with the views expressed by Mr. Redfield. * * * The testatrix, by execiiting the second will, evinced no intention to become intestate, but rather a contrary intention. By destroying the last will and carefully preserving the first she affords satisfactory evidence that she in- tended until the very last to die testate, and that that should be her will. In the absence of an express provision to that effect, we can- not presume that the legislature intended that the mere execution of a will should in all cases revoke a prior will. Such a construc- tion would in many cases defeat the manifest intention of the testator. The statute requires a 'later will or codicil.' We think that means an operative will or codicil. * * * \Ye would say, however, that we have carefully examined the cases cited by the counsel for the appel- lees, and find that many of them are cases in which the later wills became operative as wills; and, of course, the language of the courts must be interpreted with reference to that circumstance, and cannot properly be applied to a case like this." So, also, in the case of Barksdale v. Hopkins, 23 Ga. 340, it ap- pears that under the statute of Georgia a will may be revoked "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." Under the Georgia statute, not only may the revocation be by an in- strument not testamentary in its character, but Georgia is one of the states which has adopted the Victoria statute, or a statute similar to the 376 LAST WILLS AND TESTAMENTS. (Part 1 Victoria statute, above quoted. In Virginia, also, section 22 of the statute of Victoria, 1837, is in force. Rudisill's Ex'r v. Rodes, 29 Grat. (Va.) 148. In Texas, also, where the doctrine seems to prevail that the destruction of a duly executed will containing an express revocation of a former will does not have the effect of reviving the former will, the statute provides that a will may be revoked "by subse- quent will, codicil or declaration in writing executed with like formal- ities," etc. Hawes v. Nicholas, 72 Tex. 483, 10 S. W. 558, 2 L. R. A. 863. It being established, then, that under section 17 of the Illinois statute of wills a former will can only be revoked by a subsequent will, de- claring the revocation of all former wills, and not by a subsequent instrument in writing not testamentary in character, which declares the revocation of the former will, it cannot be said that, in this state the destruction of a duly executed will containing an express revoca- tion of a former will does not have the effect of reviving the former will. We have held that "a. will takes effect at the death of the tes- tator." Scofield v. Olcott, 120 111. 362, 11 N. E. 351. Indeed, the general doctrine is that a will is ambulatory, and has no effect until the death of the testator. It follows that a testamentary paper, which the testator permits to survive him, must be his will. A will is in- operative and ineffectual, and has no legal existence, until it is con- summated by death. Taylor v. Taylor, 2 Nott & McC. (S. C.) 483. - In Marsh v. Marsh, 48 N. C. 78, 64 Am. Dec. 598, it is well said : "As wills are ambulatory, and have no operation until the death of the testator, it is difficult to see how the execution of a second will, which is afterwards destroyed by the testator, can in any wise affect the validity of the will previously executed. Both are inactive during the life of the testator, and the cancellation of the second, it would seem, must necessarily leave the first to go into operation at the tes- tator's death. Nor is it. perceived how the fact that the second con- tained a clause of revocation can alter the case, because that clause is just as inactive and inoperative as the rest of it, and so continues up to the time that the whole is canceled. This principle is settled in the common-law courts in England in regard to devises." In Taylor v. Pegram, 151 HI. 106, 37 N. E. 837, we said : "As a general rule, if a will is traced into the testator's possession, and at his death cannot be found, the presumption is (in the absence of circum- stances tending to show a contrary conclusion) that he destroyed it animo revocandi." "Where a testator has a will in his own custody, and that will cannot be found after his death, the presumption is that he has destroyed it himself. It cannot be presumed that the destruc- tion has taken place by any other person without his knowledge or authority, for that would be presuming a crime." Rickards v. Mum- ford, 2 Phillim. Ecc. 24 ; 29 Am. & Eng. Ency. of Law, p. 292, note 3. See, also, Boyle v. Boyle, 158 111. 228, 42 N. E. 140. In Boyle v. Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 377 Boyle, supra, it was held that a will will be presumed to have been destroyed by the testator himself, or at his direction, where he took it from the custodian, with whom it had been for several months, and carried it away, and it could not be found after his death. In the case at bar the will which is said to have been executed by Jesse Stetson between September 1, 1898, and his death on April 27, 1899, is shown by the testimony of the appellants to have been taken possession of by him as soon as it was executed, and to have been car- ried away by him from the office of the attorney who is said to have drawn it; nor could it be found among his papers or elsewhere after his death. It is to be presumed, therefore, that Jesse Stetson de- stroyed this will animo revocandi. If he destroyed it with the inten- tion of canceling or revoking it, it was canceled or revoked as an entirety. So long as Jesse Stetson was alive, this second will was merely ambulatory, and had no operation, and could have no opera- tion until his death. While it was thus ambulatory, and before his death, the presumption is that he destroyed it, and, if he destroyed it, the clause contained in it, which revoked all former wills, was can- celed and revoked, as well as the balance of the will. It necessarily results that the former will of December 3, 1897, was revived when the subsequent will, containing the revoking clause, was canceled or destroyed. Upon this subject Redfield in his work on Wills (1 Redfield on the Law of Wills, marg. p. 328) says: "It has been held in some of the American courts that a subsequent will containing a clause of revoca- tion, executed with due solemnity for the purpose of revoking an ex- isting will, operates, proprio vigore, and instantaneously, as a revoca- tion, and, consequently, that the destruction of the second will did not revive the former one. This doctrine has an air of plausibility from the fact that an instrument of revocation alone would unquestionably have this effect so long as it was allowed to remain operative. But that would show a present purpose of becoming intestate, carried into effect as far as practicable before death. But the making of a will with a revocatory clause is very different. It is but substituting one will for another. And the revocatory clause is made dependent in some sense upon the subsequent will going into operation. And there is ordinarily no purpose of having the revocatory clause operate, ex- cept upon that condition. The whole instrument is, therefore, ambu- latory, and when destroyed it all ceases to have any operation. And the same is true of the destruction of a will merely revocatory of for- mer wills. By such destruction, the former wills, if in existence, be- come revived." Peck's Appeal from Probate, 50 Conn. 566, 47 Am. Rep. 685. * * * ■ Our conclusion is that, inasmuch as the later will executed by the testator, Jesse Stetson, must be presumed to have been destroyed by him in his lifetime, this loss or destruction has operated as a revival 378 LAST WILLS AND TESTAMENTS. (Part 1 of the former will of December 3, 1897, although the later will con- tained a revocatory clause. For this reason the court below commit- ted no error in dismissing the bill of the complainants. * * * The decree of the circuit court is affirmed. Decree affirmed.^* In re NOON'S WILL. (Supreme Court of Wisconsin, 1902. 115 Wis. 299, 91 N. W 6T0, 9.5 Am. St. Rep. 944.) Bardeen, J.^^ Both the county and circuit courts founa that the second will executed by the deceased contained a clause revoking all former wills. This fact is challenged by the appellants, but, inasmuch as all the testimony in the case on that subject is to the effect that such a clause was contained therein, we cannot disturb the finding. Section 2290, Rev. St. 1898, provides, in substance, that no will shall be revoked unless by burning, tearing, canceling, or obliterating the same with intention to revoke, or by some other will or codicil in writing, executed as the law requires. Therefore, where a second will is drawn and executed with the formality required by the stat- ute, and containing an unlimited revocatory clause, all former wills are wiped out, and held for naught. The operation of the revocatory clause is immediate and absolute. It is an act done solemnly and de- liberately for present effect, and not one contemplating that future cir- cumstances are to determine whether it shall have force. As stated by the court in Scott v. Fink, 45 Mich. 241, 7 N. W. 799 : "It operates at once, and does not apply as a mere contingent caveat against the objects at which it was aimed." The addition of the revo- catory words is a mode of immediate cancellation of the former will, and renders it totally inoperative as a testamentary instrument. See Cheever v. North, 106 Mich. 390, 64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499 ; Dudley v. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959; In re Goods of Hodgkinson [1893] Prob. Div. 339. By the great weight of authority in this country the destruction or revo- cation of the subsequent will containing the revocatory clause does not have the effect of reviving the former will. Cassoday, Wills, § 386, and authorities cited. Therefore the fact that the second will drawn by the testator was destroyed, or could not be found after his death, did not revive or give legal vitality to the former one. The question next arises whether there is anything in the case to show that the former will has been revived in such a way as to war- • 18 So in Bates v. Hacking, 29 R. I. 1, G8 Atl. G22. 14 L. R. A. (N. S.) 937 (1908), thie court liolds that, wliile a revocation by a writing which is not a will takes effect at once, a revocation hy will does not take effect, no matter what the testator's intentions may be, imless the will becomes effective oil the testator's death. i» The statement of facts and a part of the opinion are omitted. Ch. 8) THE REPUBLICATION AND REVIVAL, OF WILLS. 379 rant tbe court in admitting it to probate as a legal will. * * * We start with the assumption that the first will had been duly revoked, and was not revived by the loss or destruction of the second. The first will was then without any legal validity. The situation was the same as though it had never been written. Section 2282 provides that no will made within this state since January 1, 1896 (except nun- cupative wills), shall be effectual to pass any estate, unless it be in writing, signed by the testator, or by some one authorized by him, and attested in the presence of the testator by at least two witnesses in the presence of each other. This court has decided that it is not necessary to the validity of a will that the witnesses thereto should know the nature of the instru- ment they are signing ; nor is it necessary to the probate thereof that they should testify that the testator declared it to be his will. Allen V. Griffin, 69 Wis. 529, 35 N. W. 21; Skinner v. Society, 92 Wis. 209, 65 N. W. 1037. The will, however, must be executed in sub- stantial conformity to the statutory requirements, to be valid. The first will having become legally dead by revocation, we can see no way in which it could be revitalized except by some act which the law recognizes as being equivalent to execution under the statute. A codicil or subsequent writing adopting the former will, duly executed, or a re-execution of the old will with the required formalities, would undoubtedly revive it. See Skinner v. Society, supra ; Flood v. Ker- win, 113 Wis. 673, 89 N. W. 845. Any act short of that would lead to confusion, and open the door to fraud. The Legislature, having seen fit to prescribe in definite terms the manner in which a will shall be executed to be valid, have indicated a policy which ought not to be frittered away by evasions or exceptions. We are aware that there are cases in the books and cited by appellants' counsel which say that the question of reviving a will is simply one of what the testator intended. That question, no doubt, may be involved in many cases ; still it cannot be permitted to override or annul plain, statutory requirements. To make a valid tes- tamentary disposition of property, there must be substantial conform- ity to all statutory requirements. We believe the better and safer rule to be to require that a will once revoked, to be revived, must either be re-executed or adopted by some subsequent writing executed as the statute requires. Gary, Prob. Law, § 172. The judgment is affirmed.^** 2 In Danley v. Jefferson. 150 Mich. 590, 114 N. W. 470, 121 Am. St. Rep. &40 (1908), the court explained that in Michigan, -where publication is not required in the execution of a will, a revival of a revoked will can take place only where the testator's intention to revive the revoked will is "expressed in writing, formally sufficient to satisfy the statute." The majority opinion added (150 Mich., at page 596, 114 N. W., at page 472 [121 Am. St. Rep. 640]): "This court, having declined to follow the rule of the English law courts, is not relegated of necessity to that of the ecclesiastical tribunals." 380 LAST WILLS AND TESTAMENTS. (Part 1 CHEEVER et al. v. NORTH et al. (Supreme Court of Michigan, 1895. 106 Mich. 390, 64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499.) Montgomery, J.^^ This is an appeal from the judgment of the circuit court probating the will of Merchant H. Goodrich, who died February 19, 1893. The will probated bore date May 12, 1888. It was in testimony, and not disputed, that deceased, in December, 1888, or January, 1889, executed another will, to which Dr. John Green- shields and R. L. Parkin were witnesses. There was also testimony tending to show that the will offered for probate was found among the papers of deceased, and that no other will or codicil was found. The jury found, in answer to special questions, that the Greenshields and Parkin will was destroyed by decedent, and that a codicil, of which an abstract was in evidence in the case, was executed as a codi- cil to the will offered for probate, and that Goodrich also destroyed this codicil. The jury further found that the subsequent will, known as the "Greenshields and Parkin Will," was executed by Goodrich, and that it made a complete disposition of his estate. There was no finding by the jury, nor was there any evidence, upon the subject of whether the subsequent will contained a revocation of the prior will, in terms. 1. The circuit judge charged the jury, in effect, that a second will, which contained an express revocation of a prior will, would have the effect to revoke it, but that, if the later will contained no clause re- voking the former will, the subsequent destruction of the later will by the testator would revive the former will. There is an irreconcil- able conflict of authority upon the question of the eft'ect of the de- struction of a second or subsequent will upon an eai:lier one. The great weight of authority is to the effect that the execution of a sub- sequent will, containing an express clause revoking the former will, operates as a revocation at once, and that the former will thus re- voked cannot be subsequently revived, except by republication, and is not renewed by a destruction of the later will. James v. Marvin, 3 Conn. 576; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; Scott v. Fink, 45 Mich. 241, 7 N. W. 799, and cases cited. But we think the weight of authority, and also the previous expres- sions of this court in Scott v. Fink, favor the doctrine that, as to a will containing no express clause of revocation, it does not have the effect, of its own force, to revoke the former will, and that the de- struction of such later will effects a revival of the earlier will. The cases which maintain this doctrine rest upon the ground that all wills are, in their nature, ambulatory until the testator's death, at which «i Part only of the opinion Is given. Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 381 time, and not before, the testament becomes operative. Flintham v. Bradford, 10 Pa. 82 ; Peck's Appeal, 50 Conn. 562, 47 Am. Rep. 685 ; Simmons v. Simmons, 26 Barb. (N. Y.) 77; and cases cited supra. We are cited to the statute (section 5793, How. St.) which pro- vides: "No will, nor any part thereof, shall be revoked, unless by burning, tearing, canceling or obliterating the same, with the inten- tion of revoking it, by the testator or by some person in his presence and by his direction, or by some other will or codicil, in writing, ex- ecuted as prescribed in this chapter ; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will." And it is urged, with much show of plaus- ibility, that the execution of a new will operates, under this statute, to revoke the former will. Such, however, is not the strict reading. If, at the common law, a will duly executed is ambulatory, and is held, for the purposes of this question, to take effect only at the death of the testator, we think the statute should be construed as having ref- erence to the common-law rule. The revocation may be by some other will, but. it occurs when the will takes effect, not when executed. This statute no more than declares the common law on the subject. * * * 2. The burden of proof is upon a party who asserts that the later will contains a clause of revocation. Thornt. Lost Wills, 162 ; 1 Beach, Wills, 73; Caemen v. Van Harke, 33 Kan. 333, 6 Pac. 620. * * * Other questions are presented by the appeal of the contestants, which we have examined, but deem it unnecessary to discuss in this opinion. We think no error was committed to the prejudice of the contestants. ♦ * * " 2 2 Compare Danley v. Jefferson, 150 INIich. 590, 114 N. W. 470; 121 Am. St. Rep. 640 (1908). But in Dougherty v. Holscheider. 40 Tex. Civ. App. 31, 88 S. W. 1113 (1905), a contingent liolographic will, wliich never became effective because the contingency on which it was to do so did not happen, but which was inconsistent with a prior will, was held to have revoked the prior will, and to have made such will ineffective without a republication. In Newton v. Newton, 12 Ir. Ch. 118 (1861), it was held that a will revoked absolutely by another will and thereafter destroyed by the testator could not be revived by a codicil, though the codicil, by seeking to revive it, evinced, In the opinion of the court, an intention that a subsequent will should not remain a will. The court said: "The will itself had been de- stroyed. It was as if it had never existed. It was no longer in rerum natura, and could not, therefore, be incorporated with the codicil." In Rogers v. Goodenough, 2 Sw. & Tr. 842, 350 (1862), the court said that the provision of the Wills Act that "no will shall be valid unless it he in writing and ex- ecuted in the manner hereinafter mentioned" is decisive of that question, be- cause "the expression 'no will shall be valid' applies equally to an original will and a revived will." See, also. Hale v. Tokelove, 2 Rob. Eec. 318 (1850) ; In the Goods of Steele, L. R. 1 P. & D. 575, 576, 577 (1868). 382 LAST WILLS AND TESTAMENTS. (Part 1 WILLIAMS et al. v. WILLIAMS. (Supreme Judicial Court of Massacliusetts, 1SS6. 142 Mass. 515, 8 N. E. 424.) C. Allen, J.^^ There was proof, satisfactory to the mind of the justice who heard the case, that the testator, in canceHng his last will, intended to revive the former one, which he then left uncanceled; and his conclusion of fact was well warranted by the evidence. Such proof may come from a single witness (Brown v. Brown, 8 El. & Bl. 876; Burns v. Burns, 4 Serg. & R. [Pa.] 297); and, being found sufficient to establish the fact, the legal result follows that the former will is thereby revived (see Pickens v. Davis, 134 Alass. 252, 45 Am. Rep. 322, and authorities there cited; 2 Am. Lead. Cas. [4th Ed.] 709 et seq.). The fact that the testator executed three wills at dif- ferent times, all of which were kept by him for a time uncanceled, and that when he executed the third will he said that he would keep them all until he made up his mind which he wanted to keep, and would destroy the two he did not want, did not have the legal effect to place the three wills on an equal footing of unexecuted and unpub- lished wills. The last will, if left unrevoked, would be valid. Decree affirmed. JAMES V. SHRIMPTON. (High Oouvt of Justice, Probate Division, 1876. 1 P. D. 431.) Sir J. Hannen (President). 2^ This case was tried before me, and the following facts were proved: On the 12th of October, 1871, the testator duly executed his will, and on the 3d of July, 1872, he mar- ried, whereby his will was revoked. On the same day, and after his marriage, he executed a codicil, in which he made a provision for his wife; and the codicil contained a clause to this effect: "In all other respects I revive, ratify, and confirm my said will." Afterwards cir- cumstances occurred by reason of which the provisions of the codicil failed, and it is probable that he then destroyed it. The question for my consideration is, whether the destruction of the codicil upon which the revival of the will depended has left the will inoperative. I am of opinion that it was not the intention of the testator to leave the will inoperative, but his idea was, that the will, having been brought into existence again, remained valid notwith- standing the destruction of the codicil. I was asked to grant probate e)f the will and codicil on the presumption that what the testator had done had not been done animo revocandi. Where there has been a physical destruction of a testamentary paper the court has often been 23 Ttie statement of facts is omitted. Ch. 8) THE REPUBLICATION AND REVIVAL OF WILLS. 383 called upon to form an opinion as to the intention of a deceased at the time he did the act. In this case I have come to the conclusion that the testator destroyed the codicil with no intention of revoking the will, and that the court should give no more effect to the act than it would do if the testator had destroyed the paper under a mistake as to the instrument he was destroying. It. was done under a misconception of the effect of the act ; it was not done animo revocandi, and I therefore decree probate of the will and codicil. CROSBIE V. MACDOUAi;. (High Court of Chancery, 1799. 4 Ves. 610.) See ante, p. 352, for a report of the case. GREEN V. TRIBE. (High Court of Justice, Chancery Division, 1878. 9 Ch. D. 231.) See ante, p. 354, for a report of the case. In re CAMPBELE. (Court of Appeals of New York, 1902. 170 N. T. 84, 62 N. E. 1070.) See ante, p. 359, for a report of the case. PART II DESCENT CHAPTER I THE NATURE OF DESCENT SECTION 1.— DESCENT AND CONSANGUINITY BLACKSTONE ON DESCENT. "The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: Descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement. "Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law.* An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor ; and an estate, so descending to the heir, is in law called the inheritance. * * * 1 The word "descent" is here used in its technical sense. In some states it is given a wider meaning. "It is true that the word 'descent,' in its technical, legal meaning, denotes the transmission of real estate, or some Interest therein, on the death of the owner intestate, by inheritance, to some person according to certain rules of law. In such meaning it is distinguished from transmission by devise, which is technically by purchase, and also from the transmission of personal property, the title of which passes to the administrator, and, after the pay- ment of all debts and claims against the estate, is governed by certain rules of distribution. If the meaning of the term 'descent' is so limited to its technical significance, the provisions of the act relating to the distribution of personal estate are not within such meaning. The term as used in the act, and as it has always been used in our statutes, includes the course of transmission, by operation of law, of both real and personal property when the owner dies intestate, or his estate or any part thereof is deemed and taken as intestate estate." Cartwright, J., in Hudnall v. Ham, 172 111. 76, 83, 84, 49 N. E. 985, 987 (1898). On the statutes of descent and distribution, in the United States, see 3 Prob. Rep. Ann. 556, note. On succession to estates of intestates in general. Bee 12 Am. St. Rep. 81-113, note. (384) Ch. 1) THE NATURE OF DESCENT. 385 "Consanguinity, or kindred, is defined by the writers on these sub- jects to be 'vinculum personarum ab eodem stipite descendentium' ; the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral. "Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascend- ing line ; or between John Stiles and his son, grandson, great-grand- son, and so downwards in the direct descending line. Every genera- tion, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards. The father of John Stiles is related to him in the first 'degree and so likewise is his son; his grandsire and grandson in the second ; his great-grandsire and great- grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil and canon, as in the common, law. * * * "This lineal consanguinity, we observe, falls strictly within the def- inition of vinculum personarum ab eodem stipite descendentium ; since lineal relations are such as descend one from the other, and both of course from the same common ancestor. "Collateral kindred answers to the same description; collateral re- lations agreeing with the lineal in this, that they descend from the same stock or ancestors, but differing in this, that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who hath each a nu- merous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ances- tor, and all have a portion of his blood in their veins, which denomi- nates them consanguineos. "We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father. Titius and his first cousin are related; why? because both descend from the same grandfather; and his second cousin's claim to consanguinity is this, that they are both derived from one and the same grandfather. In short, as many ancestors as a man has, go many common stocks he has, from which collateral kinsmen may be derived. * * * "The method of computing these degrees (of collateral consan- guinity) in the canon law, which our law has adopted, is as follows: We begin at the common ancestor, and reckon downwards ; and in whatsoever degree the two persons, or the most remote of them, is GosT. Wills— 25 386 DESCENT. (Part 2 distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first degree; for from the father to each of them is counted only- one. Titius and his nephew are related in the second degree ; for the nephew is two degrees removed from the common ancestor — viz., his own grandfather, the father of Titius." 2 Bl. Com. 201-207. SECTION 2.— BLACKSTONE'S CANONS OF DESCENT "The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules or canons of inheritance, according to which estates are transmitted from the ancestor to the heir, together with an explanatory comment, remark- ing their original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations. "I. The first rule is : That inheritance shall lineally descend to the issue of the person who last died actually seised in infinitum, but shall never lineally ascend.^ * * * "11. A second general rule or canon is : That the male issue shall be admitted before the female.^ * * * "But our law does not extend to a total exclusion of females, as the Salic law, and others, where feuds were most strictly retained. It only postpones them to males; for though daughters are excluded 2 "This rule was changed in England, by St. 3 & 4 Wm. IV, c. 106, whidi went into effect In 1834. The rule now established Is that inheritance shall be traced from the last purchaser of the property ; and for this purpose the person last entitled to the property shall be deemed to be the purchaser, un- less it be proved that he inherited it. The ancient maxim, ''seisina facit Btlpitem,'' is therefore entirely abrogated. The person 'last entitled to the property' includes the last person who had a right thereto, whether he did or did not obtain the possession, or receive the rents and profits thereof. "The rule that inheritances never lineally ascend has also been altered ; and it is now provided that an inheritance shall descend to the issue of the last purchaser, and that, on failure of his issue, it shall pass to his nearest lineal ancestor, or the issue of such ancestor, the ancestor taking in preference to his or her issue. Paternal ancestors and their descendants are preferred to ma- ternal ancestors and their descendants. "In this country, the doctrine, 'seisina facit stipitem,'- has also been abol- ished in most, if not all, of the states, and an estate of inheritance passes to the heirs of the person who last had the right of ownership therein; and it is also a general rule that, in default of lineal descendants, lineal ancestors inherit in preference to relatives of the collateral line. But collateral rela- tives are usually admitted after a father or mother, in preference to more remote lineal ancestors." — Chase's Note. 3 "This canon is still in force in English law, but does not prevail in the United States, where it is the established rule that all the children shall inherit equally, males and females being classed together."— Chase's Note. Ch. 1) THE NATURE OF DESCENT. 387 by sons, yet they succeed before any collateral relations; our law thus steering a middle course, between the absolute rejection of fe- males, and the putting them on a footing with males. "III. A third rule or canon of descent is this: That where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together.* * * * "IV. A fourth rule, or canon of descent, is this : That the lineal descendants, in infinitum, of any person deceased shall represent their ancestor ; that is, shall stand in the same place as the person himself would have done, had he been living.^ "Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the youngest son, and so in infinitum. And these representatives shall take neither more or less, but just so much as their principals would have done. * * * "This taking by representation is called succession in stirpes, ac- cording to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. * * * "V. A fifth rule is: That on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules.® * * * "VI. A sixth rule or canon therefore is : That the collateral heir of the person last seised must be his next collateral kinsman, of the whole blood.'^ * * * 4 "This right of primogeniture is BOt recognized in the United States. No distinction is made between the children in regard to their interests in the estate of the deceased."— Chase's Note. ~ 5 "This is also the general rule in the law of descent in the United States, when the lineal descendants are of unequal degrees of relationship to the common ancestor in whose estate they share. But, when they are of equal degrees of relationship, they take per capita; 1. e., equally, or share and share alike."— Chase's Note. 6 "This rule is now modified by the provision, stated in a previous note, that lineal ancestors shall inherit in preference to collateral kindred. "The rule generally established in the American law of descent, which is most closely correspondent to this English rule, is that, in default of lineal descendants or ancestors who are first entitled to inherit the property, the Inheritance passes to collateral relatives. The classes of relatives who shall inherit in such a case are specially designated by the statutes of the several states, and there is cojisiderable diversity of detail in the provisions of such statutes." — Chase's Note. 7 "This rule has also been altered to some extent by St. 3 & 4 Wm. IV, C. 106. Relatives of the half blood are now entitled to inherit next after any relation in the same degree of the whole blood and his issue, when the com- mon ancestor is a male, and next after the common ancestor, when the com- mon ancestor is a female. "In this counti-y, there is much diversity, in the statutory provisions of different states, in regard to inheritances by relatives of the whole and of the half blood. In some states, no distinction is made between those two classes; but, in the larger number, relatives of the half blood are postponed to those of the whole blood. In no state, however, are those of the half blood entirely excluded from the inheritance." — Chase's Note. For a discussion of descent and distribution among kindred of the half blood, see 29 L. R. A. 541. note. 388 DESCENT. (Part 2 "VII. The seventh and last rule or canon is: That in collateral inheritances the male stocks shall be preferred to the female (that is, kindred derived from the blood of the male ancestors, however re- mote, shall be admitted before those from the blood of the female, however near), unless where the lands have, in fact, descended from a female." * 2 Bl. Com. 208-234. SECTION 3.— SEISIN AND DESCENT NORTH V. GRAHAM et al. (Supreme Court of lUinois, 1908. 235 111. 178, 85 N. K 267, 18 L. R. A. [N. S.] 624, 126 Am. St. Rep. 189.) Carter, J.' This is an action in ejectment brought by appellee in the circuit court of Edgar county against appellants to settle the own- ership of a small tract, containing about a quarter of an acre of land, situated in that county. * * * 'j^j^g court entered judgment, hold- ing that appellee was the owner of and entitled to the possession of the property in question. An appeal was thereupon prayed to this court. From the agreed statement of facts it appears that Adam Stewart died in 1888, intestate, leaving no widow, and leaving as his only heirs at law his three daughters, Martha Stewart, Demeris Snyder, and the appellee, Mary North. Martha Stewart died in 1889, unmarried and without children. Demeris Snyder died in 1892, leaving W. W. Sny- der, her husband, and Myrtle Snyder, her daughter and only heir at law. Myrtle Snyder died in 1898, unmarried, leaving the said W. W. Snyder, her father, her only heir at law. It appears that Adam Stewart and his wife February 1, 1877, made a deed of the land in question to the trustees of a Methodist church called "Pilot Class," of Edgar county, containing this provision : "Said tract of land above described to revert to the party of the first part whenever it ceases to be used or occupied for a meetinghouse or church." On July 10, 1886, Adam Stewart and wife quitclaimed the 80-acre tract of which this meeting- house piece formed a part, with other property, to his brother, James Stewart, and the property thereafter, by a chain of conveyances, was conveyed from James Stewart to the appellants in this case. * * * [The court then discussed the question of the nature of the interest »This general rule still prevails in England, though somewhat modified In detail, but not In this country. In some states, however, lands descended from a maternal ancestor go to kindred in the maternal line, and paternal Inheritances to paternal kindred. — Chase's Note. 8 Part only of the opinion is given. Ch. 1) THE NATURE OF DESCENT. 389 left in Adam Stewart after his deed to the church and decided that it was not a reversion, but merely a possibility of reverter, and concluded that discussion as follows:] It is clear from these authorities that the right remaining in the grantor, Adam Stewart, after he had given the deed to the church organization (so long as it was a mere possibility of reverter), was not one that he could convey or assign, and hence his quitclaim deed given thereafter to his brother conveyed no interest of any kind or nature in the land in question. Presbyterian Church v. Venable [159 111. 315, 42 N. E. 836, 50 Am. St. Rep. 159], Appellants make the further contention that, even though the deed in question reserved in the grantor and his heirs only the possibility of a reverter, still the court should not have entered judgment in favor of appellee for all the premises; that the three daughters of Adam Stewart succeeded him, at his death, in the ownership of this possibili- ty of reverter; that one daughter, Martha Stewart, died unmarried, without children, leaving her sisters, Demeris Snyder, and appellee, who succeeded her as owners of her interest in this possibility of re- verter ; and that Demeris Snyder's interest descended to her daughter. Myrtle, and through her to her father, WilHam W. Snyder, who has since conveyed whatever interest he had to appellants. The authori- ties lay down the rule that the possibility of reverter, while it cannot be alienated or devised by the grantor, may "descend to his heirs." Presbyterian Church v. Venable, supra. Did the land in question revert or descend to the grantor's heirs who were in existence at the time of his death, or to his heirs who were in existence at the time the fee in question terminated? The authori- ties do not appear to discuss this precise question. The right or in- terest under the possibility of reverter is very like, though, as we have seen, not strictly identical with, a reversion. Kales on Future Inter- ests, § 1. In 1 Preston on Estates, 445, it is stated "that succession by heirship to these determinable fees is in the same order and under the same rules as the succession to estates in fee simple." Under the common law the reversion descended to the heirs of the person who was last seised in fee. Tiedeman on Real Prop. (3d Ed.) § 293; 4 Kent's Com. *388. Though the law passed an inheritance to the heir immediately upon the ancestor's death, he thereby only acquired a seisin in law, and this alone would not enable him to transmit the inheritance to his heirs. He must have obtained an actual seisin or possession or seisin in deed, according to the maxim, "Seisina facit stipitem," as contradistinguished from a seisin in law, in order to make the estate transmissible to his heirs. 27 Am. & Eng. Ency. of Law (2d Ed.) 297. This common-law doctrine was followed by the courts in early decisions of some of our states, but was repudiated by many, and has now been abrogated in most, if not all, so that "rever- sions and remainders vested by descent pass to the heirs in like man- 390 DESCENT. (Part 2 ner as other estates, and no distinction is made between estates in possession and in reversion." 4 Kent's Com. *389 ; Tiedeman on Real Prop. (3d Ed.) § 293. The laws of this state governing devises and descent of property- are wholly statutory, as none of the common-law provisions relating thereto are now in force in Illinois. Kochersperger v. Drake, 167 111. 123, 47 N. E. 321, 41 L. R. A. 446 ; In re Mulford, 217 111. 242, 75 N. E. 345, 1 L. R. A. (N. S.) 341, 108 Am. St. Rep. 249; Collins v. Metropolitan Life Ins. Co., 232 111. 37, 83 N. E. 542, 14 L. R. A. (N. S.) 356, 122 Am. St. Rep. 54. The right or interest remaining under the said deed in the grantor, Adam Stewart, as we have seen, was such a right or interest as descended to his heirs. Our statute on de- scent states that "estates, both real and personal, of resident and non- resident proprietors in this state dying intestate * * * shall de- scend," etc. The word "estate" is used with a variety of meanings. 16 Cyc. 599. In its primary and technical sense it referred only to an interest in land, and doubtless that was its meaning under the com- mon-law definition of possibility of reverter. In our statutes control- ling descent and devise of property it undoubtedly refers to all inter- ests in property to which the deceased shall be entitled. In Greenwood v. Greenwood, 178 111. 387, 398, 53 N. E. 101, 102, we held : "The word 'estate' has a broad signification, and would, of course, be sufficient to pass personalty." Real and personal property, under our statutes, are treated together for the purpose of tracing descent. This common-law doctrine to which we have just referred never had any relation to the distribution of personal property. We think it must be held in this state that on the death of the ancestor the descent, whether as to real or personal property, was cast upon the heirs, without reference to the actual seisin of the ancestor. Hill- house V. Chester, 3 Day (Conn.) 166, 3 Am. Dec. 265. Indeed, it was held by Justice Story in Cook v. Hammond, 4 Mason, 467, Fed. Cas. No. 3,159, that the word "seisin," under acts of descent in this country, was equivalent to "ownership." * * * The right or interest reserved by the deed in question to the grantor and his heirs must have been in some one between the death of the original grantor, Adam Stewart, and the determination of the estate when the property ceased to be used and occupied as a church. It is an interest that is inherited, and therefore must have been cast by descent upon Adam Stewart's heirs at the time of his death, and did not originate at the time the property ceased to be used for church purposes. This conclusion is supported by the great weight of au- thority, and is in harmony with the customs and practice, not only in this state but of the country at large. Under this rule the three daugh- ters of Adam Stewart inherited this interest in equal parts. Through the deaths of various heirs, one-half interest descended to William W. Snyder, the husband of one of these daughters, and was owned by him Ch, 1) THE NATURE OF DESCENT. 391 at the time said property ceased to be used as a church. He there- after, May 5, 1906, after the commencement of this suit, quitclaimed his interest to Samuel Graham, one of the appellants herein. * * * The trial court should have entered judgment in favor of appellee, not for the entire premises, but for one-half of the premises. For the reasons indicated, the judgment of the circuit court will be reversed and the cause remanded. Reversed and remanded.^* SECTION 4.-'DESCENT AND DISTRIBUTIONS THE STATUTE" OF DISTRIBUTIONS. By St. 22 & 23 Car. II, c. 10, explained by St. 29 Car. II, c. 30, it is enacted that the surplusage of intestates' estates (except of femes covert, which are left as at common law) shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner: One-third shall go to the widow of the intestate, and the residue in equal proportions to his children, or if dead, to their representatives ; that is, their lineal descendants. If there are no children or legal representatives subsisting, then a moiety shall go to the widow, and a moiety to the next of kindred in equal degree .and their representatives. If no widow, the whole shall go to the children. If neither widow nor children, the whole shall be distrib- uted among the next of kin in equal degree and their representatives : but no representatives are admitted, among collaterals, further than the children of the intestate's brothers and sisters. The next of kin- dred, here referred to, are to be investigated by the same rules of consanguinity as those who are entitled to letters of administration, of whom we have sufficiently spoken. And therefore by this statute the mother, as well as the father, succeeded to all the personal effects of their children, who died intestate, and without wife or issue, in exclusion of the other sons and daughters, the brothers and sisters of the deceased. And so the law still remains with respect to the fa- 10 Even at common law actual seisin was construed as liberally as possible. "Where there is no one in possession at the death of the ancestor, there must be an actual entry by the heir to give him the seisin in fact. But, when there is a tenant, his possession becomes that of the heir immediately on the death of the ancestor. The subsequent misconduct of the tenant in paying rent to another person, or the mistake of the heir as to his rights, cannot by relation alter the nature of the seisin which he before had." Bayley, J., in Bushby v. Dixon, 3 B. & C. 298, 305 (1824). In the same case, Abbott, 'C. J., declared that "the possession of a tenant for years, being a rightful posses- sion, is considered in law as the possession of the heir, and, therefore, gives him a seisin in fact." Id. 392 DESCENT. (Part 2 ther; but by St. 1 Jac. II, c. 27, if the father be dead, and any of the children die intestate, without wife or issue, in the hfetime of the mother, she and each of the remaining children, or their repre- sentatives, shall divide his effects in equal portions. 2 Bl. Com. *515, *516.^^ HENRY V. HENRY. (Supreme Court of North Carolina, 1848. 31 N. C. 278.) Appeal from the superior court of law of New Hanover county, at the fall term 1848; his honor, Judge Manly,' presiding. The petitioners allege that they are the "heirs at law" and "dis- tributees" of Hezekiah Bonham, who died intestate; that the defend- ants are the administrators of the said Bonham, and, as such, took into their possession negroes, bonds, money, and other personal prop- erty to a large amount. The prayer is for an account and distribu- tion. The defendants admit that they are the administrators de bonis non of Bonham, but they allege that administration upon his estate had been before granted to one Neil Henry, who had died intestate, and that one Nathan Bonham is the administrator of the said Neil Henry. They therefore insist that they are liable to account with the said Na- than Bonham, and not with the petitioners, Ann Henry or her chil- dren. They further allege that Neil Henry committed a devastavit to the amount of about $800, and they are the sureties on his adminis- tration bond. "They maintain that the estate of the said Neil Henry is responsible for this deficiency, and the defendants having the share of the estate of the said Hezekiah Bonham in their hands, to which the representatives are entitled, they have a right to retain the same, or so much thereof as shall be sufficient to pay, satisfy, and discharge the said deficiency." A reference was made to the clerk to take an account. The clerk made a report, to which the defendants filed an exception. The case came on to be heard upon the petition, answer, report, and exception. The exception was overruled, and the report was confirmed, and a decree for the petitioners, from which the defendants appealed. Pearson, J. The petitioners claim the personal estate of the intes- tate as his "heirs at law" and "distributees." The word "heirs" is used to denote the persons who are entitled, by descent, to the real estate of a deceased ancestor. It is appropriated to that purpose, and when used in pleading, in reference to personal estate, it has no mean- ing, and must be rejected as surplusage. 11 See St. 22 & 23 Oar. II, c. 10, in the Appendix. Local statutes should be consulted. On the statutes of descent and distribution in the United States, see 3 Prob. Itep. Ann, 5uG, note. Ch. 1) THE NATURE OF DESCENT. 393 The other word, "distributees," is new in pleading ; but my Brother Nash and myself deem it admissible to denote the persons who are entitled, under the statute of distributions, to the personal estate of one who is dead intestate. No one word has heretofore been used for that purpose, and it has been necessary, in order to convey the idea, to make use of a para- phrase or set of words. "Widow" or "next of kin" are sometimes used in pleading, but these words are insufficient to convey the idea; for "next of kin" means nearest of kin, and does not include those who are entitled by representation. The statute of distributions uses the words "next of kin of the intestate, who are in equal degree, and those who legally represent them," To avoid the use of so many words, it is certainly desirable to have one word to convey the idea in reference to personal estate ; and as there is a necessity for making a word, we can see no objection to the word "distributees." It com- mends itself, because it is new, and has not been appropriated to any other use, and is as fit and seemly a word as feoffee, mortgagee, bar- gainee, bailee, indorsee, etc. We know the word "distributee" is now in common use among the legal profession, and the fact that it has been adopted by the profession and the Legislature, notwithstanding the severe rebuke given to it by Chief Justice Henderson in Croom v. Herring, 11 N. C. 393, is a convincing proof that the necessity for a new word really existed. But, yielding to the petitioners the benefit of this word, they have not entitled themselves to a decree, because there is no proof that they are distributees. The answer does not admit it, and no depositions have been taken ; and we should reverse the decree made below, and dismiss the bill, but for the fact that the answer is equally defective, and we feel disposed to extend great indulgence to proceedings com- menced in the county court. The answer does not state the ground upon which the defendants maintain their right to retain the share of the estate to which the representatives of Neil Henry are entitled. Nor does it state upon what ground Neil Henry became entitled to a share of the estate of Hezekiah Bonham. We conjecture from what is stated, for the first time, in the decree, that Neil Henry was the husband of Ann Henry, the petitioner, and that the defendants wished to raise the question whether, as husband, he was not entitled to her distributive share; but there are no allegations to raise the question and no proofs whatever. The decree made below must be reversed, with costs in this court, and we will then direct the cause to be remanded upon the motion of the petitioners, so as to let in amendments and give an opportunity to make proofs of the allegations. If no such motion is made at this or the next term, the petition will be dismissed. RuFFiN, C. J.^^ Having the misfortune to differ in opinion with my Brothers on one point in the case, I must take the liberty of stat- 394 DESCENT. (Part 2 ing my reason. * * * It is indispensable that a plaintiff should in his pleading give himself a title to the thing he demands, for the court cannot declare one which is not set up. These plaintiffs say they are the "heirs at law and distributees" of the intestate, Bonham, and they pray that the defendants may be decreed to pay to "the said heirs" their portions of the estate, and that the negroes may be divid- ed "among the heirs as aforesaid." The plaintiffs, therefore, claim ' as "the heirs and distributees" of the intestate. The statute distributes the personal estate of an intestate among his "widow and children or next of kin in equal degree or their legal representatives," and not to the heirs. The term "heirs" has no proper signification in respect to the right of succeeding to personalty. It is often used in wills and in inaccurate conversation to signify, in an improper sense, children sometimes, and at other times descendants, or issue, or nearest of kin, or the persons entitled under the statute of distributions ; and these different meanings are arrived at from the context. But it surely would not be tolerated in pleading as expressing either of those senses, or constituting a title under the statute to the personal estate of an intestate, after debts paid. Upon that point, however, my Brethren and I concur. The other term, by which the plaintiffs describe themselves and make title, is yet more objectionable, as I conceive. "Heirs" is an English word, and a term of the law, and is, therefore, understood, though improperly applied to this subject. But "distributees" is not a word at all known in the law or the language. Until my Brothers told me that they understood what it meant, I must humbly beg par- don for saying that I looked upon it as a newly invented barbarism, and without any settled sense. Indeed, I do not now understand from what source the meaning of the term is derived. I believe it is a phrase which is sometimes used in common parlance by persons who are not of the profession and do not aim at accuracy in speaking on legal subjects. Some members of the bar may have thence fallen into the use of it sometimes in discussion, when precision of expres- sion is of the less importance as there is opportunity for explanation. But those who indulge themselves in that mode of speech, are so sen- sible of its impropriety that, as Judge Henderson remarked in Croom V. Herring, 11 N. C. 393, they seldom use "distributee" without an apology, knowing that it is not to be found in any English dictionary, or English book — much less in a law book. I believe I may add that up to this day it has not obtained admission into any American dictionary, though at least one of them has been supposed to have taken in every word that could possibly be tolerated. But, when used, it has not seemed to me, at least, to be in any defi- nite sense. Like "heirs" in reference to personalty, it has appeared to la Part of tbe dissenting opinion of RuflBn, C. J., is omitted. Ch. 1) THE NATURE OP DESCENT. S95 be intended sometimes to designate children by it; at others the widow and children, or all the kindred, or a single one, that may. be entitled to a distributive share or the whole property, by original right or by representation, or even a person entitled to. a share^ by as- signment. I know I have heard a single child called "sole distribu- tee," and also that one, who had purchased a share, "had become a distributee." So I had really supposed that there was no meaning attached to the word by itself, in the mind of any one, but that it va- ried in vulgar use with the context, and that, therefore, it was wholly inappropriate to describe a title to property in pleading and entries. In wills or contracts the courts would be obliged to receive it in some sense, and would endeavor to discover that which would subserve the intention in the particular case. If, perchance, it were to find its way into a statute, the judicial duty would be the same. But that would not render it proper to transfer it into judicial proceedings. For legis- lators, like testators, take the right to puzzle judges as much as they please, and often do not trouble themselves much in the selection of terms.' The same latitude, however, is not to be claimed by pleaders and clerks. Pleadings and the entries of judgments and decrees ought to be in the language of the law. For them there are prece- dents, settled long ago by the wise and the learned, and used from generation to generation by those who were and are as discreet and well informed as any among us can claim to be. * * *, . Per Curiam. Petition to be dismissed, unless the plaintiffs apply at the next term to have the cause remanded.^* 14 The term "distributee" has the advantage of having only one meaning, whereas the phrase "next of liin" is used in two senses. "It seems to me that by next of kin this statute meant distributees of the deceased intestate. * * * This phrase [next of kin] frequently occurs in wills- and while it is true that the courts interpret it very generally as meaning nearest blood relation, yet when from the context or other portions of the will it is apparent that the testator intended to include in the phrase all his distributees, the courts will so construe the phrase and include in it a widow or surviving husband, though to justify such a construction of a will it must be very apparent that the testator meant that it should have this comprehensive meaning. * * * The courts have, however, it seems to me been less strict in conflntag the phrase next of kin to blood relations, when statutes were to be construed, and have frequently interpreted this phrase to include a husband or wife." Green, J., in Seabright v. Seabnght, 28 W Va 412 4G5, 4G6 QSSG). See French v. French, 84 Iowa, 65.5, 51 N. W 145 15 L. R. A. SOO (1892); Steel v. Kurtz, 28 Ohio St. 191 (1876); Bet- singer 'v. Chapman, 88 N. Y. 487 (1882). For a decision adhering in the con- struction of a will to the primary meaning of "next of kin " jliich 'includes neither a widow nor a husband," see Matter of Devoe, 171 N. Y. 281, 63 N. E. 1102, 57 L. R. A. 536 (1902). O'Brien, J., dissented. 396 DESCENT. (Part 2 SECTION 5.— PARTIAL INTESTACY In re WILLBOR. le Court of Rhode Island, 1897. 20 R. I. 126, 37 Atl. 634, 51 L. R. A. 863, 78 Am. St. Rep. 842.) Ma^teson, C, J. This is a case stated for an opinion of the court, as follows : Three sisters, Charlotte Willbor, Martha T. Willbor, and Eliza Ann Willbor, late of Newport, deceased, all perished in the same calamity — the burning of their house in Newport. They left instru- ments in writing, purporting to be their last wills and testaments, which have been duly admitted to probate. By these wills each testa- trix gave and devised all her real and personal estate to her two sis- ters, or to either of the survivors, and to their heirs and assigns for- ever, and then, having first directed that, after the decease of the last sister, the necessary debts should be paid, proceeds to give to her two nieces, Emily N. Willbor and Maria H. Willbor, $500 each, and to Thomas W. Smith $200. The legatee Emily N. Willbor died before the testatrices. The only heirs at law of the testatrices are Abbie R. Richards, Ann Elizabeth Clarke, Mary H. Adams, Sarah T. Bliven, and Maria H. Willbor. Upon these facts, the questions propounded are : ' ( 1) What is the amount of the legacies to which Maria H. Willbor and Thomas W. Smith are respectively entitled under the wills? (2) What portion of the estate of the testatrices passed to their heirs at law? As all three of the testatrices lost their lives in the same disaster, and no fact or circumstance appears from which it can be inferred that either survived the others, the question of survivorship must be regarded as unascertainable, and hence the rights of succession to their estates are to be determined as if death occurred to all at the same moment. Underwood v. Wing, 19 Beav. 459, 4 De Gex, M. & G. 633 ; Wing v. Angrave, 8 H. L. Cas. 183 ; Wollaston v. Berkeley, 2 Ch. Div. 213 ; In re Wainwright, 1 Swab. & T. 257 ; Scrutton v. Pattillo, L. R. 19 Eq. 369; Coye v. Leach, 8 Mete. (Mass.) 371, 41 Am. Dec. 518; Johnson v. Merithew, 80 Me. Ill, 13 Atl. 132, 6 Am. St. Rep. 162; Newell V. Nichols, 12 Hun, 604; Id., 75 N. Y. 78, 31 Am. Rep. 424; In re Hall, 9 Cent. Law J. 381; Russell v. Hallett, 23 Kan. 276; Es- tate of Ehle, 73 Wis. 445, 41 N. W. 627 ; 24 Am. & Eng. Enc. Law, 1027-1032. If all three of the testatrices are to be regarded as having died at the same moment, it follows that the bequest and devise in each of Qh, 1) THE NATURE OF DESCENT. 397 their wills to the two sisters, or either of the survivors, did not take effect, there being no interval of time, as between the deaths of the three, during which titles to property could vest ; and the wills there- fore stand as if they contained only the bequests to the legatees sub- sequently named, to wit, Maria H. Willbor and Thomas W. Smith— the other legatee, Emily N. Willbor, having deceased without issue before the deaths of the testatrices. We are therefore of the opinion: (1) That, after the payment of the debts of each testatrix, Maria H. Willbor and Thomas W. Smith are entitled to the legacies of $500 and $300 respectively bequeathed to them in each will, to be paid out of the personal estate of each tes- tatrix, if the personal estate is sufficient, and, if insufficient that such legacies shall abate proportionately; (2) that the residue of the per- sonal estate, if any, and the real estate, of each testatrix, if any, passes, as intestate estate, to her next of Ion and heirs at law.^' SECTION 6.— EQUITa/lE AnNlEGAL DESCENDIBLE IN- TERESTS CLAPP v. TOWER. (Supreme C3ourt of North Dakota, 1903. 11 N. D. 556, 98 N. W. 862.) Young, J. This is an action to quiet title to a section of land situ- ated in Cass county, which was conveyed to the plaintiff by the exec- utors of the last will and testament of Charlemange Tower, deceased. The complaint alleges that the plaintiff is the owner of said real es- tate, and that the defendants claim an interest therein adverse to the plaintiff, and prays that they be required to set forth their claims, to the end that their validity may be determined, and that title be quieted in the plaintiff. Defendants, in their answer, allege that they are the next of kin and all of the heirs at law of said Charlemange Tower, deceased, and all the surviving legatees under his will ; that said Charlemange Tower died in, and a resident of, the city of Philadelphia, Pa., and that his will was probated there; that the land in question was sold by said »• On the presumption of survivorship among those who perish In a com- mon disaster, see 51 L. R. A. 803, note ; 104 Am. St. Rep. 211, note. On par- tial intestacy as to personalty, see Dresel v. King, post, p. 720. 398 DESCENT. (Part 2 deceased to one Hadley upon a contract which provided for the exe- cution and delivery of a deed to him upon the making of certain deferred payments specified in said ^contract ; that subsequent to the death of Charlemange Tower the executors of his will foreclosed said contract by reason of the default of said Hadley in making pay- ments according to its terms, and that said land became a part of the estate of said deceased; that thereafter the executors, acting upon the theory that said land was subject to the principle and rule of equi- table conversion, and was for the purposes of administration to be treated as personal property, sold and conveyed the same to the plain- tiff, who has ever since been in possession of the same, claiming the ownership and possession thereof by virtue of said deed from said executors; that the defendants are the owners of said real estate by virtue of their heirship, and ask that the title be quieted in them. The plaintiff demurred to the answer upon the ground that it does not state facts sufficient to constitute a defense or counterclaim. The trial court sustained the demurrer, and the defendants appeal from the order sustaining the same. The will of Charlemange Tower was before this court in the case of Penfield v. Tower, 1 N. D. 216, 46 N. W. 413. This court held that, so far as its provisions related to real estate situated in this state, it was inoperative and void, and that the real estate of said deceased in this state must be distributed according to the law of succession of this state, and that the personal property should be distributed accord- ing to the terms of the will. The only question involved upon the issue raised by the demurrer is whether the land in question should, under the facts pleaded in the answer, be treated as real estate or as personal property. If, for the purposes of administration, it retains the character of real estate, the will not being operative, it descended directly to the heirs, the defendants in this action. This is conceded. If, on the other hand, it is to be considered as personal property, it then went to the executors for the purposes of distribution, and they had full right and authority to sell and convey the same in the manner and form pursued, and to account for the proceeds to the orphans' court of the state of Pennsylvania, from which they received their appointment. It is very properly conceded by both parties that under the rule and doctrine of equitable conversion land may be treated as money and money as land, whenever in equity, it is proper to invoke and apply the principle of that doctrine. ''E2ujiabk.£cmYerdOiiJs..jd€6«€d.,a^_^ constriiGtive-«44eiaiipjiJn_the_ nature..of property by which, in equity, real estate is-xegarded as personalty or personal estate as""realty/' -7. Ame'r. & Eng. Enc. of Law (2d Ed.) p. 464. And the doctrine has its origin in the maxim of equity that that is regarded as done which should be done. Penfield v. Tower, supra. There is no room for doubt that upon the facts pleaded in the de- Ch. 1) THE NATURE OF DESCENT. 399 fendants' answer the rule of equitable conversion is applicable, and that the execution and delivery of the contract of sale of the real es- tate in question by Charlemange Tower during his lifetime — and the same was valid and enforceable at the time of his death — worked a conversion of the land into personalty. His interest, after the execu- tion of the contract and at the time of his death, was the money con- tracted to be paid by the purchaser, and the purchaser's interest was the land contracted to be conveyed. In such cases, says Pomeroy, in his work on Equity Jurisprudence (section 105), "the vendor still holds the legal title, but only as a trustee, and he in turn acquires an equitable ownership of the purchase money. His property, as viewed by equity, is no longer real estate, in the land, but personal estate, in the price; and, if he dies before payment, it goes to his administra- tors, and not to his heirs. In short, equity regards the contracting parties as having changed positions, and the original estate of each as having been 'converted' — that of the vendee from personal into real property, and that of the vendor from real into personal prop- erty." The doctrine is laid' down in Williams et al. v. Haddock, 145 N. Y. 144, 39 N. E. 825, as follows : "Courts of equity regard that as done which ought to be done. They look at the substance of things, and not at the mere form of agreements, to which thev give the precise effect which the parties intended. It is presumed that the vendor, in agreeing to sell his land, intends that his property shall assume the character of the property in which it is to be converted, and it cannot be denied that it is competent for the owner of land thus to make such , land into money at his sole will and pleasure. If the vendor die prior to the completion of the bargain, provided there has been no default, the heir of the vendor may be compelled to convey, and the proceeds of the land will go to the executors as personal property." The rule is uniform, we think, that, where a valid and binding con- tract of sale of land has been entered into, such as a court of equity will specifically enforce against an unwilling purchaser the contract operates as a conversion. Keep et al. v. Miller, 42 N. J. Eq. 100, (i Atl. 495. See, also, 7 Am. & Eng. Enc. of Law (2d Ed.) 471, cases cited in note 1. The only authority cited by appellants in opposition to this general rule which can be said to be at all in point is Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526. That case, however, cannot be considered as an authority in their favor, for in that case the contract of sale was not enforceable, and for that reason it was held that a conversion was prevented. Had the contract been valid and enforceable, as the con- tract in the case at bar, it is evident that the decision would have been otherwise. The real estate in question, having assumed the character of per- sonalty went to the executors, and it continued as personalty for the purposes of administration, so that the executors could, after the can- 400 DESCENT. CPart 2 cellation of the contract, sell and convey the same to the plaintiff in the manner and form pursued. The demurrer to the answer was, therefore, properly sustained, and the order will be affirmed.^® 16 But see the statement of Lord Hardwicke In Attorney General v. Day, 1 Ves. Sr. 218, 220 (1749), that "there is no case where the representative of the personal estate is entitled to claim the money, arising by sale of the lands, as personal estate, except where one or other of the contracting parties is entitled to carry it into execution in a court of equity; for where the court holds it ought not to be executed, there is no conversion of real into personal in consideration of the com-t, upon which that right of the executor depends ; for if not effectually converted into money, it must be considered according to its original nature as real, and the heir at law must have the benefit." Where the conversion is to take place because of provisions in a will, and "the object which was to be gained by the conversion of the property has wholly or partially failed," there are several decisions. "Let us begin with a simple case. A. by his will leaves land to trustees, upon trust to sell and to pay the proceeds to B. B. dies in the lifetime of A., and (not being a de- scendant of the testator— see the Wills Act, § 33) the disposition of the pro- ceeds of sale fails utterly. The sale, then, is not required for any purpose whatever, and as between the testator's heir at law and his next of kin we shall, I think, have little difficulty in deciding in favor of the heir. But A. by his will leaves land to trustees upon trust to sell and divide the proceeds between B. and C. B. survives the testator ; C. does not. Now a sale is re- quired by the will. It is required in order that B. may have what the tes- tator has intended to give him, namely, money, and not land. But this will exhaust but half of the fund (B. and 0. were not made joint tenants, but tenants in common). What is to become of the residue? The testator's heir at law and his next of kin seem both to have plausible claims. The laud must be turned into money in order that B. may get his share. Will not the other moiety also be personalty, and is it not the rule that a dead person's undisposed of personalty goes to his next of kin? In the famous case of Ackroyd v. Smithson, 1 Bro. C. C. 503. this reasoning was overruled. The land, it Is true, must be sold; but that is merely in order that B. may get that moiety of the price which A. has given to him. As between his real and his personal representatives the testator has made no choice. The prop- erty comes to them, not because the testator has said that it shall come to them, but because he has not effectually given it to any one else; they are not entitled under the will, they claim in consequence of a partial in- testacy — and our law is that if a tenant in fee simple dies intestate his land descends to his heir. So here the testator's heir takes the moiety of the property that was destined for C. In this case the gift to C. lapses in con- sequence of C's death in the testator's lifetime. The result would be the same if the gift to him had failed for any other reason, for instance, as being contrary to law. * * * A further point is well established, namely, that in all these cases where the heir at law becomes entitled to an undisposed of share of money to arise from the sale of land he takes it not as realty but as personalty. A. devises land upon trust for sale, and the proceeds are to be divided between B. and C. C. dies in A.'s lifetime. A.'s heir at law be- comes entitled to half the property ; but before the sale is made he dies — perhaps he dies Intestate and the question is between his heir and his next of kin — or perhaps he has left a will devising his realty to X., and bequeath- ing his personalty to Y. — any way, his real and his personal representatives both claim the share, and the question is decided in favor of his personal representatives. Smith v. Claxton, 4 Madd. 484. The heir has become en- titled— to what? To land that is subject to a trust for conversion into money —a trust which B. can enforce — he has become entitled to personalty. In re Richerson, [1892] 1 Ch. 379. * * * We turn to the other side of the picture and we find the same principles prevailing. The testator bequeaths pei-sonalty to trustees upon trust to purchase land and convey it to B. and C. Ch. 1) THE NATURE OF DESCENT. 401 SHEPARD V. TAYLOR. (Supreme Court of Rhode Island, 1SS5. 15 R. I. 204, 3 Atl. 382.) Stiness, J, John Taylor devised an interest in real estate, in Provi- dence, to his son, William H. Taylor, in trust for the use and benefit of another son, Alexander, and his heirs, v^^ith power to appoint a successor, by will or otherwise, for the support of the trust; or to convey the estate to said Alexander or his heirs, when he might think proper. Alexander died leaving, besides his widow, a son, Alexander,. to whom the., tmste.e,.s,ubseg^uently conveyed the estate by deed, in fee Alexan der^ Jr.^ . died in May, 1882, a minor, and leaving no issue The complainant, lessee of the estate, files this bill of interpleader to -. determine his liability for rent, wh ether to Martha O. Taylor, mothe r u/-^''''^ of Alexander, Jr., who claims as his heir at law ; or to the other re- 'j spDTtdefitsrwTio"^TaTm that this is ancestral estate to which, under our statute, they are entitled as "the kin, next to the intestate, of the blood of the person from whom such intestate came or descen ded.*' " A s AlcAdiidCr, Jr., hacT the absolute title to the" estate, upon His death it vested in his mother as his heir at law, unless it was ancestral estate, in which case it vested in his paternal kindred. The simple questioii to be determined, then, is whether the estate came "by descent, gift, or devise from the parent or other kindred of the intestate." This involves two inquiries: First, how did Alexander, Jr., acquire his Of course, If both B. and C. die before the testator there is an utter end of the trust; the testator's next of kin will become entitled to the personal estate and will become entitled to it as personalty — for there is no trust for turning it into realty. But suppose a partial failure — C. dies before the tes- tator but B. outlives him — or the gift fails in whole or in part owing to some rule of law, e. g. the rule against perpetuities, or the testator has forgotten • to declare trusts of some share of the land that Is to be bought. Whatever he has not effectually disposed of his next of kin will take, not his heir at law, he has shown no preference for his heir at law, whichever party is to succeed must claim under the law of intestate succession which gives per- sonalty to the next of kin. Cogan v. Stephens, 5 L. J. Ch. (N. S.f 17. But again the question arises on the death of one of these next of kin who dies before any land is purchased — who will become entitled, his real or his per- sonal representative? His real representative — his heir at law, or perhaps a devisee of 'all my realty'; for what he becomes entitled to is realty, for It is a share in a fimd of money that is subject to an existing trust for the purchase of land. Curteis v. Wormald, 10 Ch. D. 172." Maitland's Equity and The Forms of Action at Common Law, 219-222. On when there is such a failure of testator's purpose or object as to pre- clude the application of the doctrine of equitable conversion, see 20 L. R. A. (N. S.) 117, note. On equitable conversion by will, see 5 Am. St. Rep. 141 note. See, also, Craig v. Leslie, 3 Wheat. uGo, 4 L. Ed. 4G0 (1818) ; West Vir- ginia Pulp & Paper Co. v. Miller (C. C A.) 176 Fed. 284 (1909). 17 As follows: Pub. St. R. I. c. 187, § 6: "When the title to any real estate of inheritance, as to which the person having such title shall die intestate, came by descent, gift, or devise, from the parent or other kindred of the intes- tate, and such intestate die without children, such estate shall go to the kin, next to the intestate, of the blood of the person from whom such estate came or descended, if any there be." — Rep. Cost. Wills — 26 402 DESCENT. (Part 2 title? Second, what is the rule to be followed when this is ascer- tained? During the life of his father the title subsisted in two parts: the legal title in the trustee; the equitable title in the father. Upon the death of Alexander, St., unquestionably his son took the equitable title by descent. When the trustee conveyed the legal title to him, what was the nature of the title thus acquired? Clearly, it was not a title by descent, for it did not come to him from parent or kindred by oper- ation of law. Neither was it a title by devise. Alexander, Jr., was not named in the will, nor was there any limitation in his favor, be- yond that which showed the devise of an equitable fee to his father. Upon a conveyance by the trustee, the father could have disposed of the entire estate, without reference to the son. Whatever rights the son had under the will were simply those which he acquired by in- heritance of his father's equitable estate. The legal estate was devised to the trustee, with a discretionary power. The conveyance of the legal title by the trustee was not a gift. Of course the word "gift" is not used in the statute in its ancient and technical application to the creation of an estate tail (2 Bl. Comm. *316); but with the com- mon and broader meaning of a voluntary conveyance (3 Washb. Real Prop. [3d Ed.] 305). In this sense, however, there was no gift of the legal estate from the grandfather to Alexander, Jr. It did not go to him, but to the trustee ; and the trustee might have conveyed it to Alexander, Sr., had he chosen to do so. There was no direction to convey the estate to Alexander, Jr. It might never have been con- veyed to him and yet the trust under the will have been fully per- formed. The deed to Alexander, Jr., was the act of the trustee, not the act of the testator. Alexander's rights were determined by his inheritance of the eq- uitable estate, to which the conveyance of the legal estate, by the trus- tee, was incident. It cannot, then, be said that the legal estate came to him by gift from the grandfather through the conveyance by the trustee. Was it a gift by the trustee? This cannot be maintained, for the deed was made in consideration of the execution of the trust and the equitable claim of the grantee in the estate. The trustee could not at that time have disposed of it to any other person without a breach of his trust. It was not, therefore, a voluntary conveyance. It appears, then, that Alexander, Jr., had the equitable title by de- scent and the legal title by purchase, otherwise than by gift or devise. In such a case what is the rule of descent? Cases upon this point are not numerous, but they are sufficiently clear. In Goodright v. Wells, Doug. 771, Lord Mansfield puts the question, "Whether, when a cestui qu e trust takes in the legal estate, possesses under it, and dies, the legal and equitable estate shall open on his death, and be severed for the different heirs ?" He then says : "No case has ever existed where it has been so held ; none where the heir at law of Ch. 1) THE NATURE OF DESCENT. 403 one denomination has, on the death of the ancestor, been considered as a trustee for the heir at law of another denomination, who would have taken the equitable estate, if that and the legal estate had not been united. On principle it seems to me impossible ; for the moment both meet in the same person, there is an end of the trust." It was, therefar£^Jield^Jn,.this case, the legal estate in fee having desceadecL from the mother a nd an equitable interest in fee from the father, that t'lT^^equTtabl e *ti tl e ni c r gc d in the legal title, and that the whole estate should follow the line of descent of the legal title. Wade v. Paget, 1 BroWfipSi. 3637also in 1 Cox, 74.i« In Selby v. Alston, 3 Ves. Jr. 339, where the equitable title descended ex parte paterna and the legal title ex parte materna, and united in the same person, the Master of the Rolls, afterwards Lord Alvanley, citing Wade v. Paget, said: "There Lord Thurlow lays down a uni- versal proposition, to which I am inclined to accede, that where the estates unite, the equitable must merge in the legal. That was the principle of the opinion of the judges in Goodright v. Wells; and, upon consideration, I am inclined not to lay any restriction upon or to narrow it in any respect, but to hold that, by whatever means, whether by conveyance or otherwise, a person obtains the absolute ownership at law of the estate, though he acquired that by an equi- table title, and both either come together or are afterwards united in him, the legal will prevail ; the equitable is totally gone for the pur- pose of being acted upon by any person in this court. Therefore, that being to be laid down universally, this demurrer must be allowed against the plaintiff claiming as heir ex parte paterna." Upon this authority Chancellor Kent, in Nicholson v. Halsey, 1 Johns. Ch. (N. Y.) 416, holds that this rule may now be "laid down as a settled principle." Accarding_-to this, rule, the legal title to the estate in question is the controlling title. As that title did not come to 18 In Hopkinson v. Dumas, 42 N. H. 296, 306, 307 (1861), Sargent, J., said of Goodright v. Wells, Douglass, 771 (1781) : "It was there learnedly argued that before the Statute of Uses the use was considered, in most respects, as the complete ownership of the land, that the estate of the feoffee was subservient to the cestui que use, and that the former could do nothing to defeat the in- terest of the latter, unless by alienation for a valuable consideration without notice; that the Statute of Uses completed this subserviency by consolidating the legal estate with the use, or by merging the legal estate in the equitable ; and that by analogy to uses thus considered, trust estates had been and should be held to be the solid and substantial ownership of the land, and the trustee the mere instrument of conveyance; that where a party holds by two titles, the law considers him as taking by the best ; that the trust estate, being the best, must control the legal estate. But the court held otherwise, deciding that the legal estate was the better title, and that the equitable title was merged the moment the two became united in the same person ; that the legal drew after it the equitable estate, and that the latter was lost in the former ; so that, upon the death of the son (the person in whom both estates had been united), the estate did not again open, and that the trust could not again be revived." 404 DESCENT. (Part 2 Alexander Taylor, Jr., by descent, gift, or. devise froirLliis,parent-Qt___ other kindred, it must descend and pass to his mother, according to the provisions of Pub. St. R. I. c . 187, § 1. Decree accordtngTy?^ 19 On rehearing in Shepard v. Taylor, 16 R. I. 166, 177, 13 Atl. 105 (1888). StineSvS, J., said: "We must reiterate that Alexander, Jr., took nothing under the will. Certainly not by devise, for the will, in terms, gave him nothing. An equitable fee was given to his father, and this he inherited. He then got the legal estate from the ti'ustee, by virtue of his inheritance of the equitable estatej which was a right existing outside and independent of the will. If a stranger had bought the equitable fee of Alexander, Sr., he would equally have been entitled to a conveyance from the trustee. But no one would claim in such a case that he took either by devise or gift under the will, or by gift from the trustee. Whether the word 'gift,' as used in the statute, be taken in a technical or popular sense, it does not cover this case, since Alex- ander, Jr., took the legal estate independently of the will by virtue of his ownership of the equitable estate, just as a stranger would have done had he become the owner of it. In other words, he acquired the legal estate as a new estate by purchase. The uncles of Alexander, Jr., contend, however, that William H. Taylor did not convey an estate by his deed, but only executed a power of appointment under the will, and hence that Alexander, Jr., took his estate under the will by virtue of the appointment, and not by purchase under the deed. We do not think this is so. The will contained no limitation of an estate in favor of Alexander. Jr., individually or as one of a class, so as to leave the trustee either a direction or discretion when to convey. If it had, undoubtedly the grantee in a deed from the trustee would take under the will by virtue of the limitation in his favor. Neither did the will indicate any intention to give a mere power of appointment. The trustee had no power of selection outside of the ownership of the equitable estate. The estate was de- vised to him in trust to hold, and in his discretion to convey. This discre- tion, at most, could only apply to the time and circumstances of the convey- ance ; and the decision in Taylor v. Taylor, 9 R. I. 119, was to this effect. * * * If, then, Alexander, Jr., inheriting the equitable estate from his fa- ther, received the legal estate on that consideration and in execution of the trust, he became the owner of the entire estate neither by gift nor devise from the testator, nor by gift from the [trustee] uncle." Ch. 2) PERSONS TAKING BY DESCENT. 406 CHAPTER II PERSONS TAKING BY DESCENT SECTION 1.— THE WIDOW^'AS "HifIR" PEABODY V. COOK. (Supreme Judicial Court of Massachusetts. Norfolk. 1909. 201 Mass. 21& 87 N. E. 466.) RuGG, J. This is a petition by the trustee under the will of Isaac Cook for leave to convert certain real and personal estate into cash, and distribute the proceeds to such persons as may be entitled thereto under the provisions of the will. The trustees were directed, by the seventh and eighth clauses of the will, to hold certain real and per- sonal property upon the trust, first, to pay the income thereof to Wil- liam W. Cook, a grandson of the testator, during his life, and to his wife, Frances A., if she survived him, during her life. The trust was to terminate upon the decease of the survivor of these two, and the trustees were directed as to the property held under clause 7 to there- upon convey the estate "to and among the right heirs at law of said William W. Cook, agreeably to the statutes of Massachusetts regu- lating the descent of intestate estates, the issue of any deceased child taking its parent's share." As to the property held under clause 8, they were directed to distribute the property "to and among the right heirs at law of the said Wilham W. Cook agreeably to the statutes of Massachusetts regulating the descent and distribution of intestate es- tates, the issue of any deceased child taking its parent's share." Wil- liam W. Cook and Frances A. Cook both survived the testator, and subsequently Frances A. Cook deceased, having had five children by William W. Cook, three of whom are now living, the others having died without issue. Thereafter William W. Cook married as his sec- ond wife the appellant, Harriet F. Cook, who has borne by him two children, both now living, and who has survived him. William W. Cook died within a year prior to the filing of this petition. The question presented is whether the second wife, Harriet F. Cook, shares under the provisions of the will of Isaac Cook, or whether the . property is to be divided wholly among the children of William W. Cook. If the word "right" had been omitted from the clauses above quoted governing the final distribution of the estate, there would be no question but that the second wife would be entitled to share in the 406 DESCENT. (Part 2 estate. Rev. Laws, c. 140, § 3, cl. 3, creates a surviving wife a stat- utory heir of a deceased husband, who leaves issue. It is true that by Rev. Laws, c. 132, § 1, the wife is given the right to waive her inheritance and claim her dower at common law, but we construe this statute to mean that the wife stands upon the same footing respect- ing the interest in the real estate of a deceased husband, where the deceased leaves a widow and issue, as she does where the deceased leaves no issue, in which event she is given at least five thousand dol- lars and one-half the remaining real and personal estate. It has been repeatedly held that in the latter event the wife is a statutory heir. She is included among those who take real estate in fee in case of intestacy, which is the familiar definition of heir at law. Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721; Smith, Peti- tioner, 156 Mass. 408, 31 N. E. 387 ; International Trust Co. v. Wil- liams, 183 Mass. 173, 66 N. E. 798; Holmes v. Holmes, 194 Mass. 552, 559, 80 N. E. 614; Gray v. Whittemore, 192 Mass. 367, 381, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246. The only doubt arises from the presence of the word "right" before "heirs" in these two clauses of the will. These two words have been adverted to in Brown v. Wright, 194 Mass. 540, 545, 80 N. E. 612, and in Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 81 N. E. 654, but their meaning was not defined in either of these cases. The phrase "right heirs" has been before other courts in sev- eral instances, and has generally been held to mean the same as heirs at law. Guerard v. Guerard, 73 Ga. 506, 510 ; Ballentine v. Wood, 42 N. J. Eq. 552, 9 Atl. 582; Brown v. Wadsworth, 168 N. Y. 225, 61 N. E. 250; Gordon v. Small, 53 Md. 550, 560; Sladen v. Sladen, 3 J. & H. 369 ; In re Ferguson, 24 Ont. App. 61. See 1 Washburn on Real Property (6th Ed.) § 150. In several English cases it has been said that the words "right heirs" mean the heirs at common law. Garland v. Beverly, 9 Ch. Div. 213, 220 ; De Beauvoir v. De Beauvoir, 3 House of Lords Cases, 524, 551; Young v. Gibbons, [1902] 1 Ch. 336, 647. There is ground for argument that, applying the principle of the English cases to the present statutory provisions in Massachusetts in the light of the history of our statutes touching the determination of heirs of persons who decease intestate, the phrase "right heirs" means nothing more than statutory heirs. See, also, Mason v. Baily, 6 Del. Ch. 129, 14 Atl. 309; In re McCrea, 180 Pa. 81, 36 Atl. 412. A dif- ficulty might arise in determining what the common law is (if that in- terpretation should be adopted) in view of primogeniture under Eng- lish common law and its early abolition* by statute in the colony and province of which this commonwealth is the successor. But it is not necessary to determine whether the phrase under all circumstances necessarily is equivalent to legal heirs or whether it may sometimes have the meaning of heirs by the blood, or possibly soTie other sig- nificance, for it is manifest from the will now under consideration Cll. 2) PERSONS TAKING BY DESCENT. 407 that the testator intended to have his estate distributed according to the statutes of descent. We need only apply the cardinal rule of will construction, which is to ascertain the intent of the testator and give it effect, unless prevented by some inflexible rule of law. Attributing to the phrase, "right heirs," standing by itself, the re- strictive force claimed by the children of William W. Cook, it is al- together overborne by the emphatic, technically accurate and indis- putably clear language of the will immediately succeeding the words, "the right heirs at law of William W. Cook," namely, "agreeably to the statutes of Massachusetts regulating the descent of intestate es- tates." The testator thus makes plain his intention to incorporate into his will as a part of its terms the statute as to the descent of real es- tate of an intestate, as it might be at the time the will became oper- ative. "Right" as descriptive of "heirs" is a word unknown in our statutes, which employ only "heirs." If anything beyond the natural sense of the words of the will was needed to reach this conclusion, it is to be found in another portion of clause 7, where, after having pro- vided for the conversion of the entire trust funds thereby created into personal property, in a certain event which did not arise, he pro- ceeds to say that after the death of both Frances A. and William W. Cook the estate should be divided, "to and among the right heirs at law of said William W. Cook, agreeably to the statutes of Massachu- setts regulating the distribution of intestate estates," thereby recog- nizing the difference between the distribution of personal property and the descent of real estate, and specifically providing that such distribu- tion should be according to the statute regulating distribution, al- though he still employs the phrase, "right heirs." "Right" becomes, in the light of the context in which it is used,^t best an adjective of dignity or approval of the legislative determination of the persons who constitute "heirs." As there is real estate devised by both clauses of the will, the whole property, both real and personal, will go to those who are technically described as heirs, there being no indication that more than one class is intended. Gardner v. Skinner, 195 Mass. 164, 80 N. E. 825. The decree of the probate court is reversed, and a decree should be en- tered giving one-third of the estate to Harriet F. Cook, the second wife, absolutely, and dividing the rest equally among the five children of William W. Cook. So ordered.^ 1 See Smith v. Winsor, 2S9 111. 567, 88 N. E. 482 (1909) ; Wesion v. Weston, 38 Ohio St. 473, 478 (1882). Compare Leavitt v. Dunn, 56 N, J. Law, 309, 28 Atl. 590, 44 Am. St. Rep. 402 (1893). 408 DESCENT. (Part 2 SECTION 2.— PRETERMITTED HEIRS In re WARDELL'S ESTATE. (Supreme Court of California, 1881. 57 Cal. 484.) McKee, J. Ada Wardell, a resident of the city and county of San Francisco, died February 25th, 1875, leaving, surviving her, her hus- band, two sons, and a daughter. Before her death, she had made her last will and testament, whereby she disposed of all her real and per- sonal estate to her husband for life, and the remainder to her two sons. No provision was made in the will for the daughter. Her name was not mentioned in it, and it does not appear by anything in the will itself that the omission was intentional. The daughter was born out of lawful wedlock. She had never been legitimated by the sub- sequent intermarriage of her parents, or by acknowledgment or adop- tion of her father. Having been omitted from the will, she resisted the disposition of the property made by it, claiming that, as pretermit- ted heir of her mother, she was entitled to a distributive share in the estate. The probate court recognized the validity of the claim, and in the final distribution of the estate adjudged her to be entitled to the same distributive share in the estate of her deceased mother as though the mother had died intestate. The sons appealed from this decision, and claim that the daughter of their deceased mother, being an illegitimate child, is not entitled to succeed by testamentary succession to any portion of her estate. But by section 1307 of the Civil Code it is provided, that "when any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate." In other 4vords, the child succeeds to the same portion of the testator's real and personal property that he would have succeeded to if the testa- tor had died intestate. Section 1306, Civ. Code. He takes by suc- cession, like one born after the making of the will. It is contended, however, that the word "children," as used in this section, includes only legitimate children, because it is a rule of con- struction that whenever Legislatures use a term without defining it, which is well known in the English law, they must be supposed to use it in the sense in which it is understood in the English law ; and as the Legislature has made no attempt to define, limit, or qualify the term, or to change in the least its common-law signification, therefore, the term must mean only those bom in lawful wedlock. It is well settled that at common law the word "children" means those born in lawful wedlock; and such, indeed, has been its legal Ch. 2) PERSONS TAKING BY DESCENT. 409 meaning in every known system of law. Those only were consid- ered as legitimate whose blood was traceable to the legal marriage of a common pair. A person not born in lawful wedlock was not re- garded as a member of the group known in law as the faipily; and consequently was not entitled to the privileges of members of the family, or to any rights of inheritance or succession. Yet every per- son, whether born in lawful wedlock or not, was recognized as a mem- ber of the community, and his relations to the community, and to each member of it, and in respect of the things appertaining to it, were matters which were regulated by law. Indeed, the object of all law is to ascertain and settle the status of individuals in the social system, and to regulate the rights and duties of which each is the center. In relation to children, the common law was a rule of succession to an estate. No one could succeed to an estate in land who was not born in lawful wedlock. Such continued to be the rigorous rule of that law until the reign of Edward III, when the principle of descent was changed in favor of bastards whose parents afterwards inter- married. This modification of the condition of such children under the common law was effected, as Blackstone says, "by the transcend- ant power of an act of Parliament." And by the same agency the status of persons who had no rights of inheritance or succession under the common law, has been, under modern law, greatly changed. So that now persons who, as bastards, had no rights of inheritance, are, under the law in most, if not all, of the states of the Union, capable of inheriting and transmitting inheritance. The legal meaning of the word "children" has, therefore, been greatly enlarged from what it was at common law. If courts were now to restrict the word to its common-law meaning, all children born of an unlawful marriage, all children by adoption or acknowledgment of their father, and all children whose parents inter- married subsequent to their birth, would be excluded from rights of inheritance or succession. But by statute law, the offspring of mar- riages null in law (section 84, Civ. Code), children born out of lawful wedlock whose parents subsequently intermarried (section 215, Id.), and children by acknowledgment or adoption of their father (sections 224, 227, 228, and 230, Id.), are all legitimate. These, although in- capacitated at common law from succeeding to any rights of their father, are regarded for all purposes as legitimate from the time of their birth. Between them and the legitimate offspring of the same parents the law has established cognatic relations, and either is as capable as the other of exercising inheritable rights. Hence the term "children," as used in section 1307 of the law of succession, must re- late to status, not to origin — to the capacity to inherit, not to the le- gality of the relations which may have existed between those of whom they may have been begotten. The word has, therefore, a statutory and not a common-law meaning; and its meaning includes all chil- 410 DESCENT. (Part 2 dren upon whom has been conferred by law the capacity of inher- itance. And the state has regulated the inheritable capacity of all children illegitimate by birth. Those who have not been legitimated by the will of their father, in any of the modes authorized by law, have been rendered capable of inheriting from their mother. By section 1387 of the Civil Code, it is declared that "every illegitimate child is, in all cases, an heir of his mother, and inherits her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock." Speaking of such a law passed by the state of Maryland, Mr. Chief Justice Taney has said : "It seems to have been supposed by the Legislature that, as there could have been no doubt of the relation which the mother bears towards her illegitimate chil- dren, the reasons of policy, which must always preclude such children from clai§|ing the inheritance of any one upon the ground that he was their father, do not apply to the property of the mother. To this ex- tent, therefore, the right to inherit is given by the statute; and it would appear to have been given upon the principle that it is unjust to pun- ish the offspring for the crime of the parents." The respondent was, therefore, though illegitimate by birth, en- dowed by the statute with inheritable blood. She possessed the same inheritable rights as heir of her mother as if born in lawful wedlock. Rogers v. Weller, 5 Biss. 166, Fed. Cas. No. 12,022 ; Garland v. Har- rison, 8 Leigh (Va.) 368; Bennett v. Toler, 15 Grat. (Va.) 588, 78 Am. Dec. 638. As an heir of her mother, she differed nothing in law from the other children, so far as the rights of inheritance which had been conferred upon her by law. To the full extent of those rights she was entitled to all the privileges and immunities of heir- ship. If her mother had died intestate, her right to a distributive share of the estate would have been unquestionable. Dying testate, the legal relation between mother and daughter was not impaired or destroyed. The latter was still a legitimate heir, as much so as the children legitimate by birth, for the law made her an heir to the same extent "as if she had been born in lawful wedlock." It is not to be supposed that the law which attached to her person the rights and duties of inheritance, and endowed her with the ca- pacity to exercise them, meant to leave her a bastard, under the dis- abilities of the common law, if the mother unintentionally omitted to make provision for her in her will. When placed by law in the state and condition of heir, and invested with the character and capacity of heir, all the rights, privileges, and legal consequences incident to that relation were tacitly conferred upon her. Swanson v. Swanson, 2 Swan, 446. And in the presence of the will of her mother in which her name was omitted, she stood clothed in law with the same rights to inherit as any one of the legitimate children would have stood had he been omitted. The omission did not affect her legal rights, unless it was expressed on the face of the will to have been intentional. But Ch. 2) PERSONS TAKING BY DESCENT. 411 no such intention appears in the will ; the omission was therefore un- intentional. Estate of Garraud, 35 Cal. 336 ; Estate of Utz, 43 Cal. 200; Bush v. Lindsey, 44 Cal. 121. And, as pretermitted heir of her mother, the respondent was entitled to a distributive share of the es- tate.2 Judgment affirmed. PEET V. PEET et al. (Supreme Court of Illinois, 1907. 229 111. 341, 82 N. E. 376, 13 L. R. A. [N. S.] 780.) Bill for partition by Henry J. Peet, as guardian ad litem of Telfair B. Peet, a minor, against Jane Creighton Peet and others. * * * On May 28, 1902, William Creighton Peet 'made and executed a last will and testament, which; omitting the formal parts thereof, is as follows: "I give, devise and bequeath all my property, wherever situated, to my wife, Jane Creighton Peet." The youngest son of the testator, Telfair B. Peet, was born about IV2 years after the execu- tion of the will. The other son, Creighton Peet, was about 3 years old at the date of the will. Jane Creighton Peet claims the entire half interest in the testator's land in question, while the guardian ad litem of Telfair B. Peet claims that the devise under the will should be abated to raise for the after-born child such a portion of the testator's estate as he would have been entitled to receive if the testator had died intestate. * * * The circuit court found that Jane Creighton Peet was the owner in fee, under the will, of the real estate of which the testator died seised, and that Telfair B. Peet had no' interest whatever in the premises. Telfair B. Peet, by his guardian ad litem, appeals to this court, and 2 But see Kent v. Barljer, 2 Gray (Mass.) 535 (1854). That a child born out of lawful wedlock before the date of its father's will and rendered legitimate by the marriage of its father and mother after the date of the will is not an afterborn child entitled to take as if the father had died intestate is held m Appeal of Mcculloch, 113 Pa. 247, 6 Atl. 253 (1SS6). But compare cases on effect of adoption in note, post, pp. 420, 421. On a gift in a will to children as applied to illegitimate children, see In re Sander's Estate, 126 Wis. 600. 105 N. W. 1064 (1900) ; In re Eve [1909] 1 Ch. 796. On the rights of children omitted from a will of their parent, see 9 Prob. Rep. Ann. 3, note; 8 Am. Prob. Rep. 338, note. Pretermitted heirs include posthumous children. Bowen v. Hoxie, 137 Mass 527 (1884) ; Northrop v. Marquam, 16 Or. 173, 18 Pac. 449 (1888). And children born after the execution of the will and before the testator's death. Owens V. Haines, 199 Pa. 137, 48 Atl. 859 (1901) ; Walker v. Hyland, 70 N. J. Law, 69, 56 Atl. 268 (1903) ; Watkins v. Watkins, 88 Miss. 148, 40 South. 1001 (1906) As well as children born before the execution of the will and over- looked On what is a "mention" of children, see Tavshanjian v. Abbott, 130 App. Div. 863, 115 N. Y, Supp. 938 (1909). See, also, note 56, ante, p. 320. In Hobson v. Hobson, 40 C olo. 332. 91 Pac. 929 (1907). a will was rendered nu- gatory except as to the appointment of an executor because a posthumous child took one half the estate, as it was not provided for in the will, and the widow elected to take the other half by renouncing the will. •412 DESCENT. (Part 2 insists that the court erred in refusing to hold that Telfair B. Peet was the owner of an undivided one-fourth interest in the premises described in the bill. ViCKERS, J.3 Section 10 of chapter 39, Kurd's Rev. St. 1905, pro- vides as follows : "If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked; but unless it shall appear by such will that it was the intention of the tes- tator to disinherit such child, the devises and legacies by such will granted and given, shall be abated in equal proportions to raise a por- tion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died in- testate, and a marriage shall be deemed a revocation of a prior will." * * * Second. Appellant's second proposition is that under section 10 of chapter 39 of our statutes no evidence outside the will itself is ad- missible, and that under said section and the words of the will ap- pellant is entitled to a one-fourth interest in the real estate involved. In so far as the court below permitted parol evidence of the testa- tor's statements, either before or after the making of the will, the rul- ing is clearly erroneous. The statements of a testator cannot be re- ceived to prove what is intended by the written words of the will. Where an issue is raised as to the testamentary capacity of the testa- tor, then what he says and what he does, if not too remote from the time when the will was executed, becomes original evidence and is admissible under the well-established rules of evidence. The errone- ous ruling of the court on the admission or exclusion of evidence will not require us to reverse the decree if upon the whole record a proper conclusion has been reached and there is competent evidence in the record sufficient to support the decree. Appellant insists that section 10 of chapter 39 ex vi termini pre- cludes the court from looking to anything except the words of the will itself. This argument is based upon the phrase, "unless it shall ap- pear by such will that it was the intention of the testator to disinherit such child"; his contention being that the intention of the testator must be expressed in words in the will, and that it is not sufficient that such intention is disclosed by the application of the usual rules of interpretation, especially if, in the application of those rules, parol evidence must be resorted to. This section of the statute was not en- acted for the purpose of working a change in the law relating to the construction of wills. Manifestly, it was never intended by the Legis- lature that wills to which this section applied should be construed by any different rule than other wills to which said section does not ap- ply. In a legal sense, everything pertaining to a testamentary dis- 8 The statement of facts is abbreviated, and part only of tlie majority opin- ion is given. Ch. 2) PERSONS TAKING BY DESCENT. 413^ position of property must appear by the will, but it often becomes necessary to resort to extrinsic evidence to determine what persons or things do, in fact, appear by the will. The language of the will may be such that the court cannot determine with certainty what in- tention is expressed in the will, but when read in the light of sur- rounding circumstances the court can clearly see what before was not discernible. It was not discernible, not because it did not appear from the will, but because the reader did not have the aid of the lights fur- nished by the surrounding circumstances. By way of illustrating our meaning, take Lord Cheney's Case, 5 Rep. Ch. 69. There the testator had two sons, both baptized by the name of "John." He devised his lands to his son John, without in any way designating which one of them he referred to. When the testator used the name "John" he meant a particular son, but the ques- tion was: Which one did he mean? Upon resorting to extrinsic evi- dence it was shown that the elder John had been long absent and was supposed to be dead, while the younger John was known to be alive at the time the will was made. Now, in the light of these circum- stances, it was readily decided that the younger should take the devise. Another illustration is afforded by the case of Bradley v. Rees, 113 111. 327, 55 Am. Rep. 432. There the residuary clause devised all the remainder of the testator's lands "to the four boys." The testator had seven sons, but the parol proof showed that three of them were men, married, and had families of their own, while four of them were minors, residing with the testator. It was held that the testator intended the four minors to have the estate. In these and all like cases where a resort to parol evidence is allowable, it is not for the purpose of importing into the will a new intention not expressed in the will, but for the purpose of enabling the court to determine what the in- tention in fact is, as expressed by the words of the testator in the will. We regard the case of Hawhe v. Chicago & Western Indiana Rail- road Co., 165 111. 561, 46 N. E. 240, as directly in point and conclu- sive against the contention of appellant on this question. Indeed, we do not see how it would be possible to sustain appellant's contention without overruling that case. There, as here, the will gave all of tes- tator's property, real, personal, and mixed, of every kind whatsoever, to testator's wife. At the time the will was executed the testator had two children, and afterwards a third child was born. There was there, as here, no mention or reference to the children, born or unborn. Pa- rol evidence was admitted there of the same g-eneral character that was heard in this case, and in answering the argument made ag-ainst the admissibility of such evidence this court, on page 564 of 165 111., page 241 of 46 N. E., said: "But we do not think the evidence ob- jected to had any tendency whatever to vary or change the intent of the testator as declared in the will. As we understand the record, the evidence was not offered for that purpose. The object of the evidence 4.14 DESCENT. (Part 2 was to place before the court the circumstances attending the execu- tion of the will in support of and in aid of the intention of the testa- tor as declared in the will, and the court, in the exercise of its discre- tion, had the right to hear such evidence. In the discussion of this subject it is said in Schouler on Wills (section 579): 'But to aid the context of the instrument by extrinsic proof of the circumstances and situation of the testator when it was executed is constantly permitted at the court's discretion, and this constitutes a proper — indeed, often an indispensable — matter of inquiry when construing a will, for what- ever a will may set forth on its face, its application is to persons and things external, and hence is admitted evidence, outside the instru- ment, of facts and circumstances which have any tendency to give ef- fect and operation to the terms of the will, such as the names, descrip- tions, and designation of beneficiaries named in the will; the relation they occupied to the testator; whether the testator was married or single, and who were his family; what was the state of his property when he made his will, and when he died ; and other like collateral circumstances. Such evidence, being explanatory and incidental, is admitted, not for the purpose of introducing new words of a new in- tention into the will, but so as to give an intelligent construction to the words actually used, consistent with the real state of the testa- tor's family and property — in short, so as to enable the court to stand in the testator's place, and read it in the light of those surroundings under which it was written and executed' — citing Little v. Giles, 25 Neb. 313, 41 N. W. 186, and Doe v. Hiscock, 5 Mees. & W. 363." ' In commenting on the force of the fact that the testator had two children living at the time the will was made which were in no way referred to or mentioned in the will, this court, in the same case above cited on page 567 of 165 111., page 242 of 46 N. E., used the following language : "At the time the will was executed by the testator he had two children then living ; one four and the other two years old. These children were excluded from taking any portion of the testator's es- tate by the will. Is it reasonable to believe that the testator intended to exclude these two infants and not at the same time exclude another child to be born within the next two months after the will was ex- ecuted? It seems plain, if the testator had intended to make any dis- tinction between his children then born or unborn, he would have in- serted a provision in his will manifesting that intention. In order to disinherit appellant the testator was not required to state the fact in express terms in the will. It is enough that the intention appears from the will, upon consideration of all of its provisions." The same reasoning applies with special force to the case at bar. Let us look at the circumstances. The testator had one child, a bright, intelligent, lovable son, three years old, bearing his father's name, Creighton, and the testimony shows that the testator was devotedly attached to this boy. The testator had retired from business and spent a large part of his time in the company of his son, Creighton. He Ch. 2) PERSONS TAKING BY DESCENT. 415 owned an estate of heavily incumbered and unproductive lands, which required business ability and expedition in handling the same. The testator had a wife in whose business judgment and ability he had unlimited confidence, and he no doubt believed that her maternal de- votion to her children could be relied upon to provide for them out of what might be saved of the estate better than the testator could in the embarrassed and entangled condition of affairs that surrounded the property at the time the will was executed. Surrounded by these circumstances, the testator made his will, employing for that purpose 16 words : "1 give, devise and bequeath all my property, wherever sit- uated, to my wife, Jane Creighton Peet." What did the testator mean by giving all his property to his wife? Did he mean that if after- wards a child should be born such child should have one-fourth of the property and the wife three-fourths, and the other child, Creighton, none? In our opinion he meant that his wife should have all of the property, to the exclusion of his children then born or to be thereafter born, and we are much influenced in reaching this conclusion by the circumstances surrounding the testator at the time the will was made, parol evidence of which, under the authority of the Hawhe Case, is clearly admissible in this state. We freely concede that other courts in other jurisdictions have reached an opposite conclusion with respect to the admissibility of parol evidence under statutes bearing more or less similarity to ours. Perhaps one of the strongest presentations of the opposing view is an opinion of the United States Circuit Court for the District of Ne- braska, rendered by Mr. Justice Brewer, in the case of Chicago, Bur- lington & Quincy Railroad Co. v. Wasserman, 22 Fed. 872. In that case the learned judge felt himself compelled to decide against what he frankly confesses was the real intention of the testator, because, under his view, parol evidence could not aid the difficulty. A quota- tion from that case is here made merely for the purpose of showing that the rule there applied defeated the intention of the testator: "In this case the primary question I am reluctantly compelled to decide in favor of the complainant, Wasserman. I say reluctantly, for when a man, on the eve of death, having a child five years of age and liv- ing with a wife to be delivered of a second child within twenty days, makes a will giving all his property to his wife, I think the common voice will say that he intended no wrong to either the born or unborn child, but trusted to his wife, their mother, to do justice to each, and believed that she, with the property in her hands, could handle it more advantageously for herself and children than if interests in it were distributed. As a question of fact, independent of the statute, I have no doubt that Mr. Wasserman had no feeling either against the born or unborn child, but, having implicit faith in his wife, meant that she should take the entire property, and believed that out of that prop- erty and her future labors she would take care of his children. But 416 DESCENT. (Part 2 the legal difficulty is this: The statute says it must be apparent from the will that the testator intended that the unborn child should not be specially provided for. How can any intention as to this child be gathered from the will alone? It simply gives everything to the wife, is silent as to children. If I could look beyond the will, my conclu- sion would be instant and unhesitating." Whatever weight this au- thority might have if this were a case of first impression with this court, it can have none now in the face of our own decision in the Haw- he Case, where the same authority was pressed upon our attention, and this court expressly refused to follow it. This court, on page 569 of 165 111., page 242 of 46 N. E., of the Hawhe Case, speaking of the Wasserman Case, said: "While the facts in that case are quite sim- ilar to the facts in this case, and the opinion delivered by the eminent jurist seems to sustain appellant's view of the law, we are not inclined to follow it." In the Wasserman Case are collected a number of deci- sions of other courts upon which appellant relies; but, if the Wasser- man Case be rejected as not good law in this jurisdiction, it would seem scarcely necessary to examine in detail the cases upon which it rests. The appellant relies with some apparent confidence upon Lurie v. Radnitzer, 166 111. 609, 46 N. E. 1116, 57 Am. St. Rep. 157, as laying down a different rule from that announced in the Hawhe Case. We do not regard these cases as in conflict. Indeed, the Hawhe Case is cited twice in the Radnitzer Case and relied on as an authority in sup- port of the conclusion reached in the latter case. The cases are clearly distinguishable, and there is nothing said in the later case that in any way impairs the authority of the foritier. There is nothing in the New York statute introduced in evidence by appellant, which, considered as a fact in connection with the other surrounding circumstances, will overcome the proofs properly before the court. It results from what has been said that appellant's second proposi- tion cannot be sustained. The decree of the court below is right, and the same is affirmed. Decree affirmed.* Cartwright, Farmer, and Dunn, JJ. (dissenting). The provision of the statute is that a child born to any testator after the making of a will shall not be disinherited unless it shall appear by such will that it was the intention of the testator to disinherit such child. It is not necessary that the testator should expressly declare such inten- * On thfe admissibility of parol evidence to show whether a living child was intentionally omitted from the will, see 8 Am. & Eng. Ann. Cas. 637, note. That a child is not so omitted where he is not provided for because the scrivener persuades the testator that the omission will not cut off the child's share of his estate is held in Bachinski v. Bachinskl, 152 Mich. 693, 116 N. W. 556, 125 Am. St. Rep. 427 (19U8). See, also, note OS, ante, p. 224. Ch. 2) PERSONS TAKING BY DESCENT. 417 tion, but it is sufficient if the will fairly manifests it. In the absence of latent ambiguity, such as the cases referred to in the foregoing- opinion, in one of which the testator had two sons named John, and in the other made a devise to "the four boys" when he had seven sons, the intention is to be gathered from the will itself. Hayward v. Loper, 147 111. -il, 35 N. E. 225. That rule was stated in Hawhe v. Chicago & Western Indiana Railroad Co., 1G5 111. 561, 46 N. E. 240, as follows: "The law is well settled that extrinsic evidence cannot be resorted to to show the intention of the testator where there is no latent ambigu- ity in the will, but the intention is to be determined from the language used by the testator in the will itself." Evidence as to the circum- stances surrounding a testator at the time the will is made is proper, as an aid to an intelligent construction of the language used, by en- abling the court to stand in the testator's place and to read the will in the light of those surrounding circumstances; but, when that is^done, it must appear by the will that it was the intention of the testator to disinherit an after-born child, if the will is to have that effect. The only facts apparent in this case which have any bearing upon the question to be determined are that the testator had one child three years old, for whom he had made no provision in the will, and that he had a wife, to whom he made a simple devise of all his property. By the will itself the testator manifested an intention to give all his property to his wife and to give nothing to the living child ; but in our opinion, such facts are entirely insufficient to justify the conclusion reached in said opinion that it appears by the will that it was the in- tention of the testator to disinherit the child born IV2 years after the execution of the will. We do not regard the decision in the case of Hawhe v. Chicago & Western Indiana Railroad Co., supra, either as conclusive of the question involved in this case, or as fairly tending to sustain the conclusion reached here. In that case the will was made on the afternoon preceding the death of the testator. By it he gave all his estate to his wife. He had two children when the will was executed, and a posthumous child was born about two months after the execution of the will and his death. He made no allusion what- ever to his living children or to the one which was soon to be born, and in devising all his property to his wife he used language which the court regarded as very significant of an intention that no other person than his wife should, in any event, have any portion of his estate. It was said that the language used meant more than a simple devise; that language could not have been used which would more clearly express an intention that the wife, and she alone, should take and hold the testator's estate to the exclusion of all others ; and that, if the testator had inserted a clause in his will that no other person should have any portion of his estate, such a provision would have excluded the two children then born and the one thereafter to be born, and yet such a provision would not have made the intention of the Cost. Wills— 27 418 DESCENT. (Part 2 testator more definite than the language used. In this case the gift to the wife was an ordinary and simple devise, and one of the control- ling reasons for the decision in the Hawhe Case is entirely wanting. The only other fact regarded as significant in determining the in- tention of the testator was that he had two children living and knew that another child was to be born within the next two months, and he made no mention of either. The living children were excluded from taking any portion of the estate, and it was not regarded as reason- able to believe that the testator intended to exclude them and not at the same time exclude the other child soon to be born. It is beyond question that the testator there had in mind both his living children and the one that would soon be born, and must have entertained an in- tention respecting the share which the child, when born, would take in his estate. It was therefore a fair inference that he had the same intention as to all. In this case the child was born li^ years after the execution of the will, and as it had no existence when the will was made the testator could have had no intention respecting it, different from that which almost every testator might have in executing a will. Eliminating from the Hawhe Case the two facts above referred to, and which formed the basis of the decision, and there would be but little left. We cannot conceive that the decision would have been the same in the absence of such facts. In the later case of Lurie v. Radnitzer, 166 111. 609, 46 N. E. 1116, 57 Am. St. Rep. 157, the testator had a wife and three children, and a posthumous child was born about three months after his death. In his will he devised his entire estate to his wife and the three living children, giving two-fifths to the wife and one-fifth to each of the three children. In the draft of the will he made a devise to his child as yet unborn, and in another place made reference to that child, but before the execution of the will he erased both the devise and the ref- erence. It was held that, although the testator gave his entire estate to the wife and living children and erased the devise to the unborn child, he did not thereby manifest an intention to disinherit such child. The decision was based on the ground that the will contained no neg- ative expressions whatever concerning the unborn child, and the court said : "The mere fact that the testator knew that such child was likely to be born to him, and that he had such knowledge when he executed his will, would not be sufficient, under the statute, to deprive such child of his share in his father's estate." The statement made in this case that the testator, no doubt, believed that the maternal devotion of his wife to her children could be relied upon to provide for them, is not in harmony with what was there said concerning the intention of the testator, as follows: "Had it been his intention, as contended by appellants, that the provision in the will giving his wife two-fifths of his estate should inure also to the benefit of this child if born alive, we would expect to find something in the will to indicate such in- tention." Ch. 2) PERSONS TAKING BY DESCENT. 419 We are of the opinion that it does not appear by the will in ques- tion in this case that it was the intention of the testator to disinherit the child born li/o years afterward, which had no existence at the time the will was made. SECTION 3.— ADOPTED CHILDREN WAGNER V. VARNER. (Supreme Court of Iowa, 1879. 50 Iowa, 532.) Mahala Boyer, daughter of John Bumer, died in 1864, leaving two children, who are the wards of the plaintiff, surviving her. In the same year — but whether before or after the death of said Mahala does not appear — John Bumer adopted said children, as provided by law, and in 1876 died without having made a will. Said Bumer left several other children surviving him. The plaintiff claims that his wards are entitled to inherit a share of the estate of said Bumer, as his children by adoption, and also the share their mother would have been entitled to had she outlived him. The circuit court held that said children could only inherit by reason of their adoption, and rejected the other claim. The plaintiff appeals. Seevers, J. It is provided by statute that the "consent of both par- ents, if living, and not divorced or separated, and if divorced or sep- arated, or if unmarried, the consent of the parent lawfully having the care and providing for the wants of the child ; or if either parent is dead then the consent of the survivor; or if both parents be dead, or the child shall have been and remains abandoned by them," the con- sent of certain named officers is necessary before the child can be le- gally adopted. Code, § 2308. When thus adopted "the rights, duties and relations between the parent and child by adoption shall, thereafter, in all respects, includ- ing the right of inheritance, be the same that exist by law between parent and child by lawful birth." Code, § 2310. In the absence of a will the estate descends in equal shares to the children of the deceased. Code, § 2453. If one of the children of the deceased "be dead, the heirs of such child shall inherit his share * * * in the same manner as though such child had outlived his parents." Code, § 2454. Under section 2310 the wards of the plaintiff inherit as the children by adoption of John Bumer, and if Mahala Boyer had outlived him she would have inherited as the natural child of said Bumer, under section 2453; and section 2454 expressly provides that her children shall inherit in the same manner as though she had outlived her father. ^20 DESCENT. (Part 2 There is no escape from this conclusion unless it can be said that the child by the adoption is disinherited by its natural parent. Because of the adoption the child acquired certain additional rights, but there is nothing in the act of adoption which in and of itself takes away other existing rights, or such as may subsequently accrue, ex- cept as is by statute provided. The argument that these children cannot inherit through their mother leads to this result. Suppose their father after her death con- sented to their adoption, they could not inherit through their mother or from their father, or through him from a remote ancestor. By the act of adoption these children became in a legal sense the children of John Bumer. Nevertheless they are the children of their natural parents, and the act of adoption does not deprive them of the statutory right of inheriting from their natural parents, unless there is a statute which in terms so provides. Not only is there no such stat- ute, but we think the contrary is expresslv provided. If, therefore, a child is adopted by a stranger it will inherit from its natural parents, in the absence of a will, because section 3453 of the Code in express terms so provides. So far we have gone on the supposition that the parents have con- sented to the adoption. But, as we have seen, such consent in certain contingencies may be given by other persons. Can it be that in such case the child is disinherited by the natural parent without the con- sent of the latter, in view of the foregoing statutory provisions? It is said that a child has no natural right to the estate of a deceased parent. Such thought, however, has but little significance in this con- nection, for the reason that the statutory right is perfect and ample. Nor is the argument that these two children inherit from two sources, and thus get more than their proper share, entitled to much weight. The reply would seem to be pertinent here that heirship is not a nat- ural but a statutory right, arbitrary and general, and, therefore, ex- ceptional cases of apparent hardship or inequality must occasionally occur. When these children were adopted by John Bumer the effect was to increase, in a legal sense, the number of his children and heirs, and if he died without a will the shares of his natural children were thereby decreased. This was the only effect of the act so far as the right of inheritance was concerned. The rights of his natural chil- dren, including Mahala Boyer, in all other respects remained just as they were before. The result is that the judgment of the circuit court must be reversed.' 8 But, contra, that an adopted child cannot Inherit from the same person In two capacities, see Delano v. Bruerton, 148 Mass. 619, 20 N. E. 308, 2 L. R. A. fi98 (TSSD) ; Morgan v. Reel. 21.3 Pa. 81. 62 .Vtl. 2-53 (1905). A child mav inherit from both Its adoptive and Its natural parents. Humphries v. Davis, 100 Ind. 2r74, 50 Am. Rep. 788 (1885) ; Clarkson v. Hatton, 143 Mo. 47, 44 S. W. 761, 39 Ch.2) PERSONS TAKING BY DESCENT. ^21 Appeal of WOODWARD. (Supreme Court of Errors of Connecticut, 1908. 81 Conn. 152, 70 Atl. 453.) John O. Noxon, a resident of Connecticut, died intestate November 28 1905. His widow petitioned for administration, settmg up that she was the widow, and that the only heir at law and next of kin of the deceased was his sister, Mary L. Woodward. Admmistration was had and the court of probate distributed the estate to the widow and one' Elizabeth E. B. Potter who had been adopted when two years and seven months of age by the intestate and his wife in Wisconsm. The sister of the intestate appealed from the orders of distribution. T T? A 74S fi^ Am St Ren 635 (1898). And from several sets of adoptive par^ntt- Patterson v. BrowB'^lng^46 Ind. 160, 44 N. E. 993 (1S96). And take« as nieteri£?ted heir. Van Brocklin v. Wood, 38 Wash. 384, 80 Pac 530 (1905). ^d even it seems, as an afterborn pretermitted heir where he adoption comes after the making of the will. Flannigan v. Howard 200 111. 396 6o J. E 782 59 L R. A. 664. 93 Am. St. Rep. 201 (1902); Sandon v. Sandon 123 Wis 603, 101 N. W. 1089 (1905). The adopted child does not as a rule kiherit J^om the ancestral or collateral kindred erf ^t^f^optive parent Ph^^^^^^^ v. ATpPnnipq 'lO Ohio St 1 51 N. E. 445, 69 Am. St. Rep. 753 (lb9S) , Meaaei v. Archer 65 N H2ll 23 M^ 521 (1889); Van Derlyn v. Mack, 137 Mich^ 147, Too NW 278, 66 L. R. A. 437, 109 Am. St. Rep.^669 (1904) ;Hockadayv Lynn 200 Mo. 45G, 98 S. W. 585, 8 L. R. A. (N. S.) 117 118 Am^ St. Rep. 6,2 (190G) , Burnett's Estate, 219 Pa. 59d, 69 Atl. 74 (1908) ; Boaz v^rfwmney, <9 I-^^- 33- 99 Pac. 621 (1909). See 17 L. R. A. 435, note; 8 L. R. A (N S.) 11<, note But in Iowa he may inherit through the adoptive parent. Shick v. Howe, 137 fowa 249 114 N. W. 916, 14 L. R. A. (N. S.) 980 (1908). In aiassachusetts the adopted child may inherit from the children of the adoptive parents Stearns V AlleS, 183 Mass. 404, 67 N. E. 349, 97 Am. St. Rep. 441 (1903 . ^ But the gen- eral rule seems to be the other way. Keegan v. Geraghty, 101 111. 26 (ISSl) . Helms V Elliott, 89 Tenn. 44B, 14 S. W. 930 10 K R. A 535 (1890) See^also 118 Am St. Rep. 684, note. In Carroll's Estate, 219 Pa. 440, 68 Atl. 1038 123 Am St Rep. 673 (1908), a husband adopted a child by proceedings to which his wSe was not a party and the child so adopted was held not to inherit from As to whether the blood relatives of an adopted child or its adoptive parents inherit from it, the statutes of the given state must be consulted. In the ab- sence of an express statute giving the adoptive parents the right to inherit, it i«! held in White v. Dotter. 73 Ark. 180 (1904). Upson v. Noble. 35 Ohio St. 65.5^(1880). and Hole v. Robhins, 53 Wis. 514. 10 N. W. 617 (1881). that the blood relatives take. In Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788 (18So), an adopted child died intestate without issue, owning real estate which came to it by inheritance from the adoptive mother, and the court held that siich real estate descended to the surviving adoptive father rather than to the child's surviving natural mother. Compare Swick v. Coleman, 218 111-33, (5 N E 807 (1905), where there was a statute covering the matter. But see Reinders v. Koppelmann, 68 Mo. 482, 30 Am. Rep. 802 (1878). It has been held that the children of the adopted child will inherit through him the share of the estate of a deceased adoptive parent as fully as if the adopted ?Mld were a child by blood. Pace v. Klink, 51 G^. 220 (1874) ; Power v. Hafley 85 Ky 671, 4 S. W. 683 (1887) ; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 T v \ '>07 (1896) On whether adonted children are included m bequests to chiMrem^se; Bray v. Miles. 23 Ind. App. 432, 54 N. E. 446, 55 N.E 510 (1899) ; Woodcock's Appeal, 103 Me. 214, 68 Atl. 821, 125 Am. St. Rep. 291 (1907) , In re Haight, 63 Misc. Rep. 624. 118 N. Y. Supp. 745 (1909). On adoption in gen- eral, see 9 Prob. Rep. Ann. 345, note. 422 DESCENT. (Part 2 HammErslEy, J.' * * * The meaning and effect of the stat- utory adoption and decree is defined by the [Wisconsin] statute as follows : ( 1) As affecting the legal rights and duties of parent and child, the adopted child shall be deemed, for the purposes of custody of his person, of power to enforce obedience, and other legal conse- quences attached to the natural relation of parent and child, as a child of the adopting parent bom in lawful wedlock; the natural parent of the child being, by such decree, deprived of all legal rights as respects such child and the child iDeing freed from all legal obligations as re- spects his natural parent. (2) As affecting the laws of inheritance and distribution and the capacity of the child to take property in pur- suance of such laws, the adopted child shall be deemed and taken, for the purposes of inheritance and succession by him, to be the child of his adopting parent. * * * There is nothing in the policy of this state, in reference to the rela- tion of parent and child, which could interfere with our giving effect to the Wisconsin decree, as respects the rights of the petitioners for the adoption, after they transferred their domicile to Connecticut, or of those claiming under them. We have statutes of a similar nature, and fully recognize the status of an adopted child. Ross v. Ross, 129 Mass. 243, 267, 37 Am. Rep. 321. Those who have once legally made such an adoption cannot shake off the relation by a change of domicile. Whether the child adopted, on reaching full age, could reclaim its original domicile is a question not raised by the facts before us. To John O. Noxon, therefore, after his removal to this state, as well as while an inhabitant of Wisconsin, Elizabeth E. Burton, now Mrs. Pot- ter, stood in the position of a child born in lawful wedlock. * * * There is no error. In this opinion the other Judges concurred.'' « The statement of facts Is abbreviated, and part only of the opinion is given. 7 See Pinlev v. Brown (Tenn.) 123 S. W. 359 (1009). But see Brown v. Fin- ley, Io7 Ala. 424, 47 South. 577, 21 L. R. A. (N. S.) G79 (1908). Compare Kee- gan V. Geraschty, 101 111. 26 (1881), where a child adopted in Wisconsin was not allowed to inherit in Illinois from a child of the adoptive parent, because a child adopted in Illinois could not have done so. CJompare, also, Olmsted V. Olmsted, 216 U. S. 386, 30 Sup. Ct. 292, 54 L. Ed. (1910). On the ex- traterritorial effect of adoption, see 65 L.. R. A. 186, note, and 21 L. R. A. (N. S.) 679, note. Ch. 2) PERSONS TAKING BY DESCENT. i23 SECTION 4.— ILLEGITIMATE AND LEGITIMATED CHIL- DREN THOMAS V. THOMAS' ESTATE. (Supreme Court of Nebraska, 1902. 64 Neb. 581, 90 N. W. 630.) Hastings, C* The dispute in this case relates to the construction of section 31, c. 23, Comp. St. 1901. The specific question seems to be whether the acknowledgment in writing, signed in the presence of a competent witness, required of the father of an illegitimate child in order to constitute the latter an heir, is simply a provision for writ- ten evidence of paternity, or whether it is a requirement of a writ- ten instrument signifying an intention of the father to change the status of the child. Plaintiff's petition filed in the county court of Douglas county in Re Estate of John D. Thomas, deceased, alleges that he is the illegitimate child of John D. Thomas; that the latter, about April 8, 1876, in writing, signed in the presence of competent witnesses, acknowledged himself to be plaintiff's father. He asked to be adjudged and considered an heir of the estate of John D. Thom- as. The probate court decided against him. He appealed to the dis- trict court of Douglas county with the same result, and brings a peti- tion in error to reverse the latter judgment. * * * . If this statute is to be taken as merely requiring a particular form of evidence of paternity in order to render any illegitimate child com- petent to inherit and only one that shall comply with the bare terms of the law, then the dismissal was erroneous. There was certainly competent evidence of such a writing having been in existence. It is true that, as tendered in proof, this agreement was a mere incident to the settlement with the mother. There is, however, proof given and tendered that there was a writing, signed by John D. Thomas in the presence of witnesses competent to testify, in which he acknowl- edged himself to be the father of claimant. It' is earnestly contended on the latter's behalf that this is all that is required. In this view counsel are strongly supported by the case of Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40. That court is ex- pressly construing this same statute, and holds that oiographic letters of the decedent, whose signing was seen by competent witnesses, were a sufficient compliance with the requirements of the law. This con- clusion, so far as it rests on the ground that this statute was intended to permit any child born out of wedlock to inherit from his father if he could prove his parentage in this way, was without dissent. * * * » Part only of the opinion is given. 424 DESCENT. (Part 2 If this statute is to be construed as simply providing for special evidence of paternity, the fact that the writing was never delivered would seem to be without importance. Neither had the will ever been delivered in Remy v. Municipality No. 3, 11 La. Ann. 159. It would not matter who had it if it was simply evidence of paternity. If, how- ever, an intention to change the status of the child is required on the father's part, if the writing was in the nature of a grant of inheriting capacity, and to be effective must evince an intention of the deceased to make the claimant one of his heirs, then his retention of it would show that such intention was imperfect, and that he desired still to retain his control of the matter. The nondelivery of a memorandum sufficient to satisfy the statute of frauds is held to vitiate it, for the reason that it shows an imperfect execution, and to pass rights there must be such a delivery as places the instrument beyond the control of the maker. Wier v. Batdorf, 24 Neb. S3, 38 N. W. 22. If, as de- fendants in error claim, an instrument for the express purpose of ac- knowledging the claimant was necessary, he has no right. * * * In Nebraska the first territorial Legislature adopted the Iowa stat- ute that an illegitimate child should inherit from one who should ac- knowledge him as a child, but such recognition must have been general and notorious, or else in writing. Laws 1855, p. 75. In 1856 another statute was passed allowing illegitimate children to inherit only on the intermarriage of the parents and the father's acknowledgment of par- entage. Laws 1856, p. 125. In 1860 the present law was enacted. Laws 1861, p. 64. As shown in the California cases, the question here is one of construction. It would seem that the common law on this subject is pretty thoroughly eliminated in Nebraska. There are some few cases in this country which adopt the rule that in passing upon the rights of illegitimate children to inherit a strict construction must be followed, as all such rights are statutory. At common law the ille- gitimate, like the alien, had no heritable blood.* The construction as » "By the law [the common law] a bastard was nullius filins as to the whole question of inheritance. He had no mother, or father, no brothers, sisters, or other kindred— no inheritable blood, and hence no capacity to inherit or trans- mit inheritance, save to the heirs of his own body. The supposed origin of this rule has been asserted to be the discouragement of a promiscuous and illicit intercourse between the sexes. It is at least debatable whether pre- cisely the opposite policy, conferrini? equal rights of inheritance upon legiti- mate and illegitimate offspring, would not better preserve the high moral duty of chastity between the sexes." Somerville, J., in Butler v. Elyton Land Co., 84 Ala. 384, 390, 4« South. G75, G77 (1887). The statutes of most states allow a bastard to inherit from his mother, and allow bastards born of the same mother to inherit from each other. Because the statutes varv in wording and the courts vary in strict or liberal con- struction, it is hard to lay down rules. In the absence of an express provi- sion in the statute permitting it, such statutes have usually been construed not to allow the bastard to inherit from his mother's ancestors: Jackson v. Jackson, 78 Ky. 390, 39 Am. Rep. 246 (1880) ; Waggoner v. Miller, 26 N. G. 4R0 a844) ; Brown v. Kerby, 9 Humph. (Tenn.) 460 (1848). But see McGuire v. Drown, 41 Iowa, 650 (1875). And compare Jackson v. Hocke, 171 Ind. 371, 84 N. E. 830 (1908). Or from his mother's collateral kindred. Pratt v. At- Ch. 2) PERSONS TAKING BY DESCENT. 4:26 to the alien is that, unless he is .expressly mentioned, he has no part in statutes of descent. Stemple v. Herminghouser, 3 G. Greene (Iowa) 408; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Orr v. Hodg- son, 4 Wheat. 453, 4 L. Ed. 613. The rights of illegitimate children have sometimes been treated in the same way. Pina v. Peck, 31 Cal. 359 ; Furguson v. Jones, 17 Or. 204, 20 Pac. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808. In Hunt v. Hunt, 37 Me. 333, in construing this same statute, the court says: "Who are entitled to inherit as heirs of a deceased person is in this state to be determined only by the provisions of the statute in force at the time of his decease. No rules of the civil or common law af- ford them the least aid." Generally, the courts hold that statutes for the relief of illegitimate children should have at least a fair construc- tion. In re Jessup, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594; Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40; Dickinson's Appeal, 42 Conn. 491, 19 Am. Rep. 553; Swanson V. Swanson, 32 Tenn. 446. Even the alien, when expressly mentioned, is given whatever the statute clearly calls for. It is to be noted that the statute merely calls in this instance for an "acknowledgment" of a fact. It makes the illegitimate child "an heir of the person who shall, in writing signed in the presence of a competent witness, have acknowledged himself to be the father of such child." If no more is asked of this son than the statute by its terms re- quires, he is entitled to a share of his father's estate if the evidence given and offered on his behalf is true. Whether or not it is true, he is entitled to have a jury decide if this statement of his father's is required merely as evidence of his paternity. Such we conclude it is. The question which was not decided in Lind v. Burke, 56 Neb. 785, 77 N. W. 444, it seems to us should be decided in the negative. No intention or desire that the child should become an heir seems needed if his father is pointed out by an acknowledgment of the paternity in wood. 108 Mass. 40 (1871) ; Turnmire v. Mayes (Tenn.) 114 S. W. 478 (1908) : Reynolds v. Hitchcock, 72 N. H. 340, 56 Atl. 745 (190.3). But see Moore v. Moore, 169 Mo. 432, 69 S. W. 278, 58 L. R. A. 451 (1902). Or from his legiti- mate half brothers or sisters. Bacon v. McBrlde, 32 Vt. 585 (1860); Wood- ward V. Duncan, 1 Cold. (Tenn.) 502 (1860) ; Overton v Overton, 123 Ky. 311, 96 S. W. 469 (1906) ; Truelove v. Truelove, 43 Ind. App. 734, 86 N. E. 1018 (1909). But see Messer v. Jones, 88 Me. 349, 34 Atl. 177 (1896). where the children of an illegitimate child took by right of representation their father's share of his legitimate half sister's estate. That an illegitimate child takes under a gift in a will to the "heirs by blood" of the mother is held in Hayden V. Barrett, 172 Mass. 472, 52 N. E. 530, 70 Am. St. Rep. 295 (1899). On illegiti- mate child taking as a child under a will, see In re Eve, [1909] 1 Ch. 796; In re Sander's Estate, 126 Wis. 660, 105 N. W. 1064 (1906). On conflict of laws as to legitimacy, see 65 L. R. A. 177, note. Finley v. Brown (Tenn.) 123 S. W. 359 (1909) and C>luisted v. Olmsted, 216 U. S. 386, 30 Sup. Ct. 292. 54 L. Ed. (1910). On inheritance by. through, or from bastards, see McSurley v. Venters, 104 S. W. 365, 31 Ky. Law Rep. 963 (1907) ; Berry v. Powell, 47 Tex. Civ. App. 599, 105 S. W. 345 (1907) ; In re De Cigaran's Estate, 150 Cal. 682, 89 Pac. 833 (1907) ; 23 L. R. A. 753, note ; 56 Am. Dec. 263-266, note ; 13 Prob. Rep. Ann. 375. 426 DESCENT. (Part 2 the latter's own hand, signed in the -presence of a competent witness. Neither does it seem that the court should add to this statute any re- quirement of delivery of this evidence, or that it be expressly men- tioned that the child is illegitimate, or that the witness attest the writ- ing. The statute might require all this, but by its terms does not. * * * It is therefore recommended that the judgment of the district court be reversed, and the cause remanded for further proceedings. Per Curiam. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings.^* SECTION 5.— THE MURDEKER OF THE ANCESTOR WELLNER et al. v. ECKSTEIN et al. (Supreme Court of Minnesota, 1908. 105 Minn. 444, 117 N. W. 830.) Lewis, J.^^ On January 6, 1899, and for some years prior thereto, John Wellner ahd Emelie Wellner were husband and wife and resi- dents of the county of Nicollet. On the day named he died intestate, the owner of a farm, of which 80 acres was their homestead, leaving him surviving his widow, Emelie Wellner, and two minor children, the plaintiffs herein. Thereafter such proceedings were duly had and taken in the probate court of the county of Nicollet that a final decree was duly made and entered by and in such court on November 11, 1899, whereby the homestead was duly assigned to the widow for her life, with an undivided one-third of the remainder of the real estate in fee, and the balance thereof to the two children. The deceased 10 But in Nebraska acknowledgment must be direct, unequivocal, and un- questionable. J^Ioore V. Flack, 77 Neb. 52, 108 N. W. 143 (1906) "While no formal acts are prescribed by the statute which shall constitute the acknowledgment [of the child as the father's offspring] required, un- doubtedly the recognition of parentage must be unambiguous. But, if so, such recognition may be shown by conduct, as well as by declarations." Bra- lev J in Houghton v. Dickinson, 19G Mass. 389, 391, 82 N. E. 481 (1907). See. also Miller v. Pennington, 218 111. 220, 75 N. E. 919, 1 L. R. A. (N. S.) 773 (1905) holding that an oral acknowledgment is enough where the statute does not require a writing. Jn some states, the consent of the wife is required to make the acknowledgment effective, and it has been held that to give such consent she must first know that the child is her husband's illegitimate off- spring Estate of Heaton, 135 Oal. 385, 67 Pac. 321 (1902). It has been held that a child once acknowledged cannot be disowned, because a legal relation- ship, and not a blood one, is to be established. Binns v. Dazey, 147 Ind. .536, 44 N E. 046 (1896), In Allison v. Bryan, 21 Okl. 557, 97 Pac. 282 (1908), a father was awarded the custody of his illegitimate minor child against its mother, where under the statute he had legitimatized it 11 A few slight omissions are made in each opinion. Ch. 2) PERSONS TAKING BY DESCENT. '427 was murdered by his wife and hired man that they might marry each other and enjoy his property, and they were married on June 26, 1900, and on July 5, 1902, they executed for a valuable consideration a quit- claim deed of the land, so decreed to Emelie Wellner by the probate court, to the defendant Joseph A. Eckstein, who then had full notice and knowledge of the facts herein stated. Thereafter eaclf of the grantors in the quitclaim deed were duly convicted of the crime of murdering John Wellner, and sentenced to life imprisonment. On April 6, 1907, the minor children, by their guardian, brought this ac- tion in the district court of the county of Nicollet, alleging in their complaint the foregoing facts, to secure a decree adjudging that the defendants hold the legal title to such interest in the lands as was de- creed by the probate court to Emelie Wellner as trustee ex maleficio for the benefit of the plaintiffs, and that they are the owners thereof. The defendants demurred to the complaint, and the trial court made its order, from which the plaintiffs appealed, sustaining the demurrer on the ground that the facts stated in the complaint were not sufficient to constitute a cause of action. * * * Two principal questions are presented by the appeal: (1) What is the proper construction of the state statutes with reference to the descent and distribution of the real property of an intestate, the sur- viving widow having murdered her husband for the purpose of ac- quiring the property? (2) The probate court having exercised its jurisdiction in administering the estate, and having made its final de- cree assigning the property to the widow and children, has the dis- trict court jurisdiction as a court of equity to set aside or modify the . judgment of the probate court, whether tlie statute be strictly con- strued or be read with the implied exception that it has no applica- tion to one who has murdered the ancestor for the purpose of ben- efiting thereby ? * * * A majority of the court are of the opinion that the entire matter is within the jurisdiction of the probate court, and the order appealed from is affirmed upon that ground. Start, C. J. I concur in the conclusion that the order appealed from must be affirmed solely for the reasons following : The precise question presented by the record is : Did any beneficial interest in the land of her deceased husband ever vest in Emelie Well- ner, by reason of the fact that she was his wife and that he died in- testate, having been feloniously murdered by her, leaving her his sur- viving' widow? A determination of the question involves a construc- tion of the statutes of the state relating to the descent and distribu- tion of the property of intestates, the effect of the final decree of the probate court assigning to the widow the use of the homestead and one-third of the balance of the land of which her husband died seised, and the claim that in any event she took no beneficial interest in the land, but held the legal title as trustee ex maleficio for the plaintiffs. 428 DESCENT. (Part 2 1, The descent and distribution of the property of a decedent is a matter within the exclusive control of the Legislature, which may give or withhold the right to inherit upon such conditions as it deems just, and if the legislative intention as to such matter is expressed in clear and unambiguous language there is no room for construction, and effect must be given to the statute as it reads. The provisions of our statute relating to descent and distribution, so far as here relevant, are, and were at the time of Wellner's death, substantially as follows : Whenever any person dies seised of any lands or interest therein, not having lawfully devised the same, the homestead of the decedent shall descend to the surviving spouse, free from any testamentary or other disposition thereof not consented to in writing, for life if there be any children or issue of a deceased child. The surviving spouse shall also inherit an undivided one-third of all other lands of which the decedent was seised at any time during coverture, to the disposi- tion of which by will or otherwise the survivor shall not have con- sented in writing. Rev. Laws 1905, §§ 3646-3648. It is to be noted that the statute is specific and clear, and has pre- scribed the exact conditions upon which the surviving spouse shall be entitled to share in the land of a decedent. If it had been the in- tention of the Legislature to impose on such right a further condi- tion or exception to the effect that no one should, by virtue of the statute, take or inherit property from a decedent whom he had mur- dered, it would have been a very easy matter to have expressly pro- vided for such a contingency. It is, however, urged that to permit one to inherit from an ancestor or spouse whom he has murdered would be so abhorrrent and repug- nant to natural law and justice that it must have been the intention of the Legislature to make such a case an exception to the positive provisions of the statute, and therefore the exception will be implied, and the statute construed as if it so read. It is the settled doctrine of this court that the general terms of a statute are subject to implied exceptions, founded in the rules of public policy and the maxims of natural justice, so as to avoid absurd and unjust consequences. Duck- stad V. Board of Co. Com'rs, 69 Minn. 202-206, 71 N. W. 933 ; Baart V. Martin, 99 Minn. 197-211, 108 N. W. 945, 116 Am. St. Rep. 394. This rule of construction, however, applies only to cases where it is clear from all the provisions of the statute that the omission of the exception by the Legislature was unintentional, and an intention to include it may be fairly inferred from all of the provisions of the stat- ute. In every case the question is, what was the intention of the Leg- islature, as disclosed by the language of the statute? State ex rel. Utick V. Board of Co. Com'rs, 87 Minn. 325, 92 N. W. 216, 60 L. R. A. 161. The exception which counsel for the appellants insist should be read by implication into the statute in this case is of such a character Ch. 2) PERSONS TAKING BY DESCENT. 429 that no inference can be fairly drawn from the language of the stat- ute that the Legislature intended to include it therein. This conclu- sion is sustained by the great weight of judicial authority. The only case directly holding to the contrary, so far as I am ad- vised, is Riggs V. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819, the reasoning of which was approved in Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. 540, wherein it was held that the general terms of statutes regulating the devolution of property and the making and effect of wills are subject to the implied exception or condition that one cannot take property by inheritance or will from an ancestor or benefactor whom he has murdered, thereby reading into such statutes an exception found in the civil law and al- so in the Code Napoleon. It is to be noted that this case did not involve the construction and effect of a statute of descent, but involved only the question whether a devisee could take title to property under the will of a testator whom he had murdered to prevent a revocation of the will and to ob- tain the immediate possession of the property. It is not difficult to distinguish the cases, for there is a clear distinction between a case where the title passes unconditionally by operation of the positive law of the state and one in which the title passes by the voluntary act of the tcst3.tor ^^ The case of Carpenter's Estate, 170 Pa. 203, 32 Atl. 637, 29 L. R. A. 145, 50 Am. St. Rep. 765, in its facts is substantially like the one at bar. It was a case where a son murdered his father, and it was held that such fact would not justify the court in disregarding the statutes of descent and distribution, by which the son inherited as heir of his father. The court in its opinion reviewed the case of Riggs v. Palmer, declined to follow it, and said : "In the case now under con- sideration it is asked by the appellant that this court shall decree that 12 "The cases relied on by plaintiffs in error as authorities against the ricjht to inherit are those Involving insurance policies, wills, and the like. Riggs V. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819 ; Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. ■)40: Lundy v. Lundy, 24 Can. Sup. Ct. RFiO; Life Insurance Co. v. Armstrong. 117 U. S. 591. fi Sup. Ct. 877, 29 L. Ed. 997 ; Schmidt v. Northern Life Ass'n, 112 Iowa, 41, 83 N. W. 800, 51 L. R. A. 141. 84 Am. St. Rep. 323; Box v. Lanier, 112 Tenn. 393, 79 S. W. 1042, 64 L. R. A. 458. There Is a manifest difference, however, between private grants, conveyances, and comtracts of individuals and a public act of the Leg- islature. It might be that a person would not be permitted to avail himself of the benefits of an Insurance policy the maturity of which bad been accelerated by his felonious act. Many considerations of an equitable nature might affect the operation or enforcement of a ?rant or contract of a private person which would have no application or bearing on a statute enacted by, the Legislature. So far as the descent of property is concerned, the courts are practically unan- imous In holding that all the povv^er and responsibility rests with the Legis- latur*. They have spoken with one voice in opposition to the exclusion of an heir from taking an estate on account of crime, where the statute in plain terms designates him as one entitled to Inherit." Johnston, C. J., in McAUls- t«r V. Fair, 72 Kan. 533, 537, 84 Pac. 112-114, 3 L. R. A. (N. S.) 726, 115 Am St. Rep. 233 (1906). 430 DESCENT. - (Part 2 in case of the murder of a father by his son, the inheritable quality of the son's blood shall be taken from him, and that his estate under the statute of distribution shall be forfeited to others. We are un- willing to make any such decree, for the plain reason that we have no lawful power so to do. The intestate law in the plainest words desig- nates the persons who shall succeed to the estate of a deceased intes- tate. It is impossible for the courts to designate any different person to take such estate without violating the law. We have no possible warrant for doing so. The law says, if there is a son, he shall take the estate. How can we say that, although there is a son, he shall not take, but remote relations shall take, who have no right to take it, as there is a son ? From what source is it possible to derive such a power in the courts? It is argued that a son who murders his own father has forfeited all right to his father's estate, because it is his own wrongful act that has terminated his father's life. The logical foun- dation of this argument is and must be that it is a punishment for the son's wrongful act. But the law must fix punishments. The court can only enforce them. * * * It is argued, however, that it would be contrary to public policy to allow a parricide to inherit his father's estate. Where is the authority for such a contention? How can such a proposition be maintained, when there is a positive statute which disposes of the whole subject? How can there be a public policy lead- ing to one conclusion when there is a positive statute directing a pre- cisely opposite conclusion? In other words, when the imperative lan- guage of a statute prescribes that upon the death of a person his estate shall invest in his children in absence of a will, how can any doctrine or principle or other thing called 'public policy,' take away the estate of a child and give it to some other person? * * * There can be no public policy which contravenes the positive language of a statute." In the case of Shellenberger v. Ransom, 31 Neb. 61, 47 N. W. 700, 10 L. R. A. 810, 28 Am. St. Rep. 500; Id., 41 Neb. 631, 59 N. W. 935, 25 L. R. A. 564, the facts were that a father murdered his daughter for the purpose of possessing himself of her estate as her only heir at law. The father was indicted for such murder, and to secure his at- torneys for defending him he. conveyed to them his interest in his daughter's estate. He was convicted, but while under sentence of death for his crime he was hanged by a mob. The court upon the original hearing of the case held, following Riggs v. Palmer, that the estate of the daughter did not pass, upon her death, to her father, for the reason that a person cannot take, by the statutes of descent, the es- tate of a person whom he murders for the purpose of possessing such estate. But the court on a rehearing of the case receded from its nrst decision, and held that by virtue of the plain and unambiguous provisions of the statute of descent, which left no room for construc- tion or interpretation, and by operation of the statute, title to the prop- erty in controversy vested eo instanti in the father upon the death of his daughter intestate, without reference to the cause or manner of Ch. 2) PERSONS TAKING BY DESCENT. 431 her death. In so holding the reasoning of the court was substantially as follows : "In our statute of descent there is neither ambiguity nor room for construction. The intention of the Legislature is free from doubt. * * * The majority opinion in Riggs v. Palmer, as well as the opinion already filed in this case, seems to have been prompted largely by the horror and repulsion with which it may justly be sup- posed the framers of our statute may have viewed the crime and its consequences. This is no justification to this court for assuming to supply legislation, the necessity for which has been suggested by sub- sequent events. * * * Neither the limitations of civil law nor the promptings of humanity can be read into a statute from which they are absent, no matter how desirable the result to be obtained may be. The well-considered cases warrant the pertinent conclusion that when the Legislature, not transcending the limits of its power, speaks in clear language upon a question of policy, it becomes judicial tribu- nals to remain silent. * * * Riggs v. Palmer is the manifest as- sertion of a wisdom believed to be superior to that of the Legislature upon questions of policy." It was held by the Supreme Court of Ohio in Deem v. Milliken, 53 Ohio St. 668, 44 N. E. 1134, affirming the reasoning of the court below (6 Ohio Cir. Ct. R. 357), that a statute of descent, clear in its terms, cannot, upon grounds of public policy or otherwise, be so construed as to exclude one, who murders his intestate for the purpose of succeed- ine to his estate, from the inheritance. The facts in that case were that a son, who was sole heir at law of his mother, murdered her for the purpose of succeeding to the title of her land, upon which he gave a mortgage to a third party. He was afterwards convicted of the crime and hanged. The action was between the brothers and sisters of the deceased and the mortgagee ; the plaintiffs claiming that no in- terest in the land of the intestate descended to the son by reason of his crime. The court, in overruling this contention, stated that : "No in- ference favorable to the plaintiffs in error can be drawn from the sup- posed familiarity of the lawmakers with the principles of the civil law, where, by an exception, they who murder their ancestors are ex- cluded from the inheritance. The natural inference is that when they incorporated the general rule into the statute, and omitted the excep- tion, they intended that there should be no exception to the rule of inheritance prescribed." It was held in the case of Owens v. Owens, 100 N. C. 240, 6 S. E. 794, that a wife who was accessory before the fact to her husband's murder did not thereby forfeit her right to dower in his estate, given to her by the laws of the state. In Kuhn v. Kuhn, 125 Iowa, 449, 101 N. W. 151, it was held that a widow, who was the murderer of her husband, was nevertheless en- titled to the distributive share of his estate given in general terms by the statute of descent. Anent the claim that it would be contrary to public policy to permit a person to derive an advantage from his crim- 432 DESCENT. (Part 2 inal act the court said : "But the public policy of a state is the law of that state as found in its Constitution, its statutory enactments, and its judicial records. * * * And when public policy touching a partic- ular subject has been declared by statute, it is limited by such statute, and the courts have no authority to say that the Legislature should have made it of wider application." See, also. Murphy v. Renner, 99 Minn. 348, 109 N. W. 593, 8 L. R. A. (N. S.) 565, 116 Am. St. Rep. 418, where it was held that al- though a wife had abandoned her home, her husband and her children, and was living an adulterous life, an attempted conveyance of his homestead by the husband without her signature was void. Upon principle and authority I am of the opinion that the terms of our statutes of descent and distribution are so clear, precise, and man- datory that there is no room for construction ; that such statutes mean what their language imports, and nothing more; and, further, that by operation of law, independent of any act or volition on the part of Mrs. Wellner, the legal title to and the entire beneficial interest in the property here in question vested in her, subject to the claims of cred- itors, if any, upon the death of her husband intestate. Noon v. Fin- negan, 29 Minn. 418, 13 N. W. 197; Jenkins v. Jenkins, 92 Minn. 310, 100 N. W. 7.^» 2. If, however, there could be any fair doubt as to such conclusion, the doubt has been forever set at rest by the final decree of the probate court. This is so conclusively settled by the decisions of this court that any extended argument in its support is unnecessary. ♦ * * Now in this case the construction of our statute of descent — that is,, whether it was subject to the implied exception contended for — and the further question whether the widow, by reason of her crime, should be declared a trustee ex maleficio, and the estate of the deced- ent assigned accordingly, were matters to be determined by the probate court. It follows that its decision" thereon, by its decree of distribution, is final and conclusive, for, while our probate courts are not possessed of general equity powers, yet as to all matters of which they have ex- clusive original jurisdiction by virtue of the Constitution they possess all powers, whether legal or equitable, which are essential to the exer- cise of such jurisdiction. 3. It is further claimed by plaintiffs' counsel that, if it be conceded that the legal title to the property in question vested in the widow by virtue of the statute, yet by reason of her crime she took no beneficial interest therein, and that equity will hold her as a trustee ex maleficio of the property for the use and benefit of the plaintiffs, the minor chil- dren of the decedent. The concession defeats the conclusion, for eq- uity follows the law, and where, as in this case, the legal title to prop- is Another case allowing the murderer to inherit is De Grafifenreid v. Iowa Laud & Trust Co., 20 Okl. G87, 95 Pac. 624 (1908). Ch. 2) PEKSONS TAKING BY DESCENT. 433 erty vests, not by the act or contract express or implied, of the parties, but by the operation of a positive statute, which has been given effect by a final judgment of a court of competent jurisdiction, the owner of such a title cannot be charged as a trustee ex maleficio. Where a party by force, fraud, crime, or in any other unconscientious manner, secures the legal title to property which equitably belongs to another, or in which he has some interest, absolute or contingent, equity will impress a constructive trust upon the property and charge the holder of the legal title as a trustee ex maleficio for the party who has the beneficial interest therein. Nester v. Gross, 66 Minn. 371, 69 N W. 39. This rule, however, c&n have no application to the precise facts of this case, and no court, so far as I am advised, has ever applied it to a case like this one. The distinction between this case, where the legal title vested solely by statute, and the cases cited on behalf of the plain- tiffs, in which the property rights claimed grew out of a contract, ex- press or implied, or arose from the fraud or wrong of the alleged trus- tee with reference to the property, is obvious. So clearly marked is the distinction between the cases that it never occurred, it would seem,. to the able courts whose decisions have been referred to that it could be seriously claimed by any one that the doctrine as to trustees ex maleficio could be applied to a case where the title vested by statute, for no reference is made to the claim in the opinions. In none of the cases cited and relied upon by counsel for plaintiffs did the legal title vest by statute, but nearly all of them involved the effect to be given to wills or life insurance policies. Where a testator by his will devises property to another, it is a reasonable and permis- sible construction of the will to hold that the devise was upon the im- plied condition that the devisee should not murder the testator, for manifestly such was the intention of the testator. Therefore, when the devisee murders the testator, there is a breach of the implied con- dition upon which the devise was made, and the devisee will not be permitted to take the gift. Page on Wills, § 687 ; 1 Underbill on Wills, § 160. . The same principle applies to a case where a testator disinherits his heir by his will, and thereby gives his property, upon his death, to another, but repents and intends to revoke his will, and to prevent the revocation the legatee murders him; also to a case where a party gives his promissory note payable at a specified time after his death, and the payee or his indorsee feloniously kills the maker, and to cases where the beneficiary in a life insurance policy, or his assignee, mur- ders the insured. An examination of the cases relied upon by the plaintiff shows that not one of them is a case where the legal title vested by statute, but all of them are in their facts analogous^ to the suggested cases, where the doctrine contended for by plaintiffs' coun- sel unquestionably applies. Cost. Wills— 28 434 DESCENT. (Part 2 But in this case neither the widow nor her grantee are asking or claiming anything from a court of equity. The absolute title to the property in question vested in the widow by virtue of the statute. Her children never had any interest therein, and her crime did not and could not deprive them of any property rights. Nor did she receive the property as a gift or bounty from her husband, for he could not have disposed of it by deed or will, or otherwise, without her written consent. Solely by operation of the statute the absolute title to the property in question vested in her. There is, then, no basis for charg- ing her as'trustee ex maleficio and decreeing the property to the chil- dren. To hold otherwise would be the setting aside of the positive written law of the state, the annulling of a final judgment of a court of competent jurisdiction giving effect to the statute, and the forfeiture of an estate as punishment for a crime, contrary to the mandate of our Constitution. This conclusion is regrettable, but it inexorably follows from the facts in this particular case. The law ought to be otherwise, but the remedy rests with the Legislature. Brown, J. I concur in the views of the Chief Justice. Elliott, J. (dissenting). The decision of the majority to the efifect that the decree of the probate court is conclusive seems to infer gen- eral equity powers in that court which I had not supposed it to pos- sess. I am obliged to dissent from the conclusion that Mrs. Tanke's title to this land rests upon the decree of distribution, and that she thereafter is personally immune from the controlling power of courts of general equity jurisdiction. As I believe that this court has power to dispose of the case upon its merits, I feel justified in stating the doctrines which in my judgment should control. A decision which allows a murderer to inherit property from his victim shocks the moral sense of all right-feeling people, and that fact in itself strongly suggests that it is wrong in law, morals, and jus- tice. Only the express mandate of the Legislature will justify a court in reaching such a conclusion, and such mandate I do not find in the statute. In its absence no court having at its command the principles and doctrines of equity jurisprudence is justified in confessing impo- tence and inability to prevent the successful consummation of such a wrong. The statute is in general terms and controls the devolution of property under ordinary normal conditions. The Legislature has not said that a wife who murders her husband shall not inherit his prop- erty; neither has it said that a wife who murders her husband shall inherit his property. It has said that a widow shall inherit a certain proportion of the property of her deceased husband, and it in my judgment leaves such exceptional and extraordinary cases as the pres- ent to be determined by fundamental principles which for generations have been established in our jurisprudence. There are but few authorities upon the exact question, and they are conflicting. It is a remarkable fact that all the cases of this charac- Ch. 2) PERSONS TAKING BY DESCENT. 435 ter have arisen in this country, where human life is said to be held less sacred than in other parts of the civilized world. The first case, that of Owens v. Owens. 100 N. C. 240, 6 S. E. 794, arose in 1888, and it was held that a widow, who had been convicted as an accessory before the fact of the murder of her husband and confined in the state prison under sentence therefor, was entitled to dower in her husband's lands because the statute which gave a legal dower contained no provi- sion for its forfeiture in the event that she murdered her husband. The court felt that it was bound by the literal language of the statute and had no power to read therein an exception which was not ex- pressed in the language. The same conclusion was reached in Deem V. Milliken, 53 Ohio St. 668, 44 N. E. 1134; Id., 6 Ohio Cir. Ct. R. 357; Carpenter's Estate, 170 Pa. 203, 32 Atl. 637, 29 L. R. A. 145, 50 Am. St. Rep. 765, Williams, J., dissenting; and Shellenberger v. Ran- som, 41 Neb. 631, 59 N. W. 935, 25 L. R. A. 564, reversing a former decision in the same case (31 Neb. 61,. 47 N. W. 700, 10 L. R. A. 810, 28 Am. St. Rep. 500). The Pennsylvania case was approved extra- judicially in Holdom v. Ancient Order, 159 111. 619, 43 N. E. 772, 31 L. R. A. 67, 50 Am. St. Rep. 183. On the other hand, the New York Court of Appeals, in Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819, Gray, J., dissenting, held that, in enacting a general law provid- ing for the devolution of property by will or descent, the Legislature could not have intended that the provisions should operate in favor of one who murdered his ancestor or benefactor in order to speedily come- into possession of his estate either as devisee, legatee, or heir at law. The Legislature, when it used general language, could not have in- tended, says Judge Earl, that a murderer should inherit the prop- erty of his victim, and, "besides, all law, as well as contracts, may be controlled in their operation and effect by general fundamental action of the common law. No one shall be permitted to profit by his own fraud, nor to take advantage of his own wrong, nor to found any claim upon his own iniquity, nor to acquire property by his own crimes. These maxims are dictated by public policy, have their foundation in universal law, administered in all civilized countries, and have no- where been superseded by statute." This decision was approved in the subsequent case of Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. 540. The same conclusion was reached by the Supreme Court of Ontario in McKinnon v. Lundy, 24 Ont. Rep. 132, affirmed in 24 Can. S. Ct. 680, and by the Supreme Court of Missouri in the recent case of Perry V. Strawbridge, 209 Mo. 621, 108 S. W. 641, 16 L. R. A. (N. S.) 244, 123 Am. St. Rep. 510, where it was held that the word "wid- ower," as used in the statute, would not be construed to include a per- son who has made himself a widower by murdering his wife. In re Kuhn's Estate, 125 Iowa, 449, 101 N. W. 151, it was held that the statute (Code, § 3386), which provided that "no person who feloni- 436 DESCENT. (Part 2 ously takes, or causes or procures another so to take, a life of another, shall inherit from such person or take by devise or legacy from him any portion of his estate," did not deprive a widow who was the mur- derer of her husband of her distributive share of his estate, which came to her under section 3366 as a matter of contract. The statute was subsequently amended so as to bring the surviving spouse within its terms. I am not impressed by the supposed difficulties in the way of so construing this statute as to exclude a case of this character. The books are full of cases in which such construction has been resorted to, and the principle applied is neither novel nor extreme. The idea that the Legislature will not be presumed to have intended to legislate unjustly early found expression by the writers on the common law, and Dwarris drew from Plowden and Coke the maxim of interpreta- tion that, "when statutes are made there are some things which are exempted and foreprized out of the provisions thereof by the law of reason, though not expressly mentioned; thus things for necessity's sake or to prevent a failure of justice are excepted out of statutes." The courts have naturally and properly always striven to prevent injustice which would otherwise result in individual cases from the lin- guistic shortcomings of legislators. The limitations of language are such that it is practically impossible to so phrase a Code or statute as to provide for all the manifold conditions and the possible emergen- cies which result from human activities. P>ut justice must be pre- sumed to be the ultimate purpose which the Legislature had in mind, and, as said by a recent writer, "whenever the written law plainly con- tradicts the precepts of justice, so inwoven into our natures as to seem instinctive, a doubt will be made whether the Legislature really in- tended what it seems to have declared." Carter on Law, Its Origin, Growth, and Functions, p. 283. When a literal construction would result in an unjust, inequitable, and absurd conclusion, it is always held that the general language of the statute should not be so con- strued as to produce such a result. A statute should be construed in the light of the fact that there are many other rules and principles of law and equity, the existence of which were known by the Legis- lature and the application of which may restrict its general language. In Cleaver v. Mutual Life Ins. Co., 1 Q. B. 147, which grew out of the famous Maybrick Case, it appeared that Mrs. Maybrick had murdered her husband and that his executors claimed the proceeds of certain life insurance policies as against the assignees of the wido\v. The policy contained no exceptions which covered the case, and the married women's act of 1882 allowed a person to name his wife as beneficiary in a life insurance policy and create a trust in the proceeds in her favor. It was held that the wife by murdering her husband had rendered the trust incapable of performance. In the course of the decision Lord Justice Fry remarked that the language creating a trust xnust "be subject to the principle of public policy, * * * and the Ch. 2) PERSONS TAKING BY DESCENT. 437 /anguage of the statute must be read as though it contained an excep- tion in such a case." Numerous cases illustrate the fact that the ultimate rights of par- ties are not always measured by the strict and literal language of a statute. A party's conduct may prevent him from availing himself of an apparent right given by a statute. Connivance will bar the right to a divorce, although not so provided in the statute. Lee v. Hammond, 114 Wis. 559, 90 N. W. 1073; Pierce v. Pierce, 3 Pick. (Mass.) 299, 15 Am. Dec. 210; Robbins v. Robbins, 140 Mass. 528, 5 N. E. 837, 54 Am. St. Rep. 488 ; Wilson v. Wilson, 154 Mass. 194, 28 N. E. 167, 12 L. R. A. 524, 26 Am. St. Rep. 237, and cases cited in note. In eq- uity it is the settled rule that the fraudulent concealment through some artifice or act of a cause of action will prevent the running of the stat- ute of Hmitations. 25 Cyc. 1214; Blair v. Bromley, 5 Hare, 542; Moses v. St. Paul, 67 Ala. 168 ; Allen v. Conklin, 112 Mich. 74, 70 N. W. 339; Lieberman v. Wilmington Nat. Bank, 2 Pennewill (Del.) 416, 45 Atl. 901, 48 L. R. A. 514, 28 Am. St. Rep. 414. The same rule prevails generally in actions of law. Shelby County v. Bragg, 135 Mo. 291, 36 S. W. 600 ; Quimbey v. Blackey, 63 N. H. 77 ; 25 Cyc. 1215. A party who is guilty of fraud cannot avail himself of the statute of fraud for the purpose of protecting and retaining the fruits of his fraud. 5 Biner, Abr. pi. 40; Kinard v. Hiers, 3 Rich. Eq. (S. C.) 425, 55 Am. Dec. 643; Rogers v. Rogers, 87 Mo. 257; Haigh v. Kaye, L. R. 7 Ch. 469. So a fraud will estop a widow from claiming her dower. Dougrey v. Topping, 4 Paige (N. Y.) 94; Smiley v. Wright, 2 Ohio, 506 ; Ellis v. Diddy, 1 Ind. 561 ; Connolly v. Branst- ler, 3 Bush (Ky.) 702, 96 Am. Dec. 278. See cases cited in a note in 25 L. R. A. 564. Chapter 237, p. 348, Gen. Laws 1901, provided that after the ex- piration of a designated time the title to land registered under the Torrens system should be indefeasible. No exceptions were made; but in Baart v. Martin, 99 Minn. 197, 108 N. W. 945, 116 Am. St. Rep. 394, it was held that when the registration was secured by fraud, and the rights of innocent purchasers were not involved, the decree would be vacated. These cases, and many others which might be cited, show conclusively that there are many things to be taken into consideration other than the literal language of the statute. The exact ground upon which the decisions proceed is not always clearly expressed; but by the application of some rule of construction, or some common-law or equitable principle, a party is prevented from securing what an exact and literal reading of a statute would give him. While as a general proposition I find no difficulty in holding that this statute was not intended to be for the benefit of such a criminal. I nevertheless am of the opinion that under the conditions of this case die legal title of the land passed to the widow. But she obtained the 438 DESCENT. (Part 2 title by fraud and crime, and a court of equity, acting in personam, should deprive her of the fruits of her crime. An effective argument in favor of this view was presented by Dean Ames in an article published in 36 Am. Law Reg. (N. S.) 229. In Tiffany's Modern Law of Real Property, vol. 2, § 505a, it is said that certain cases, "though no doubt correct in so far as they decide that the legal title to the property of the deceased passes to the murderer, are probably incorrect in that they fail to apply and recognize the prin- ciple that a court of equity will intervene to compel one who acquires property by the commission of a wrong to hold it as a trustee ex male- ficio for the persons rightfully entitled to it." A writer in the New York Law Journal says "that the requirements of these statutes can be satisfied, and yet a just result be reached, by the application of the familiar equitable principle that no one may take advantage of his own wrong, and that one who through crime or fraud acquires the legal title to property belonging to another must hold that title as a constructive trustee for the person thus wronged or his representatives. No one will claim that the result reached in the Ne- braska and this Pennsylvania case was a just one, while the view here set forth accomplishes justice, violates no statute, and preserves the rights of a purchaser without notice of the crime or fraud. The ap- plication of this just principle makes unnecessary the attempted dis- tinction between the cases of wills and the cases where the statutory law of descent are in question." This statement is quoted in 30 Am. Law Rep. 131, and the editor remarks that: "When a murderer comes red-handed into a so-called court of justice, and there demands that the court shall execute a statute in a manner which never could have been intended by the Legislature which enacted it, so as to put him into possession of property through a capital felony, * * * ^j^gj^ ^]^g courts ought to withhold their aid. * * * By granting it they make themselves in a moral sense accessories after the fact, and lend encouragement to crimes of this kind." Another legal journal in picturesque language says : "It really seems to us that the question is too clear for debate. The position of Ne- braska, Ohio, and North Carolina courts, that a murderer may inherit from his victim, because the statute of descent does not say that he shall not, seems almost grotesque in its blind narrowness, amounting to practical immorality. One might as well contend that a highway- man, who kills a traveler and takes his horse, although he must go to prison, is still entitled to the horse, because the statute does not pro- vide for the contrary. The Savior probably did not think that the wicked men in the parable were sound in law when they said : 'This is the heir ; let us kill him, and the inheritance shall be ours.' " 6 Green Bag, p. 535, As I understand the opinion prepared by the Chief Justice, it con- cedes that this equitable doctrine may properly be applied when the criminal is claiming under a will, but asserts that it is not applicable Ch. 2) PERSONS TAKING BY DESCENT. 439 when the party claims under the statute of descent. But I see no difference in principle. The objections are that the technical require- ments of a trustee ex maleficio are not present. But the controlling principle lies much deeper, and the technical trusteeship is merely the means by which the principle is applied and the result worked out. Nor does the application of this rule violate the maxim that equity follows the law, which means merely that equity applies to equitable titles and interests those rules of law by which legal titles are regu- lated, provided this can be done in a manner not inconsistent with the equitable titles and interests themselves. The doctrine that no man may profit by his own wrong lies deep down among the foundations of English jurisprudence. The maxim, "Nullus commodus capere potest de injuria sua propria," is a part of the common law. Broom, Legal Maxims, p. 297. "It is a maxim of law that no man shall take advantage of his own wrong." Coke Litt. 148b ; 1 Hale, P. C. 482 ; 2 Hale, P. C. 386 ; 2 Inst. 713 ; Plowd. 309 ; Finden v. Parker, 11 Mees. & W. 680. "No system of jurisprudence," says Lord Justice Fr}', "can with reason include among the rights which it enforces rights directly resulting to the person asserting them from the crime of that person." To permit this would be to subject the law "to the reproof of committing the flagrant injustice of an atro- cious criminal enriching himself by his own crime." Cleaver v. Mut. Life Ins. Co., 1 Q. B. 147. There is no presumption that a statute was intended to repeal the common law. Endlich, Stat. Const. § 127; 25 L. R. A. 565, note. The principle that the operation of an act is to be interpreted in the light of the common law is, as we have seen, of constant application in all departments of the law, and parties are thus prevented from ac- quiring under the forms of the law new rights to which they are not in fact entitled. Equity prevents fraud by taking from the wrongdoer the fruit of his deceit, and it accomplishes this by the beneficial doctrine of con- structive trust. Whenever the title to property, real or personal, has been obtained by actual fraud, or through any other similar means, or under any other circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the benefits of interest, equity imposes a constructive trust in the property in favor of one who is truly and equitably entitled to the same. The form and variety of these trusts are practically without limit, as the principle is applied whenever necessary for the doing of complete justice. Such trusts are raised for the purpose of working out right and justice, and often directly contrary to the actual intention of the party who holds the legal title. Pomeroy, Eq. Jurisprudence (3d Ed.) vol. 1, § 155; Id., vol. 3, § 1053; Story, Eq. Juris. (13th Ed.) vol. 1, § 256; Rollins V. Mitchell, 52 Minn. 41, 53 N. W. 1020, 38 Am. St. Rep. 519. This doctrine was applied in Nester v. Gross, 66 Minn. 371, 69 N. W. 39, where it was held that if one party obtains title to land by 440 DESCENT. (Part 2 fraud, or by the violation of a fiduciary relation, or in any other un- conscientious manner, so that he may not equitably retain it, a con- structive trust will be imposed upon it in favor of one who in good conscience is entitled to it. From what was said in EHerson v. West- cott, 148 N. Y. 149, 43 N. E. 540, it appears that this was really the ground upon which Riggs v. Palmer was decided. "The relief which may be obtained against her," says Chief Justice Andrews, "is equi- table and injunctive. The court in a proper action will, by forbidding the enforcement of a legal right, prevent her from enjoying the fruits of her iniquity. It cannot and will not set aside the will. That is valid; but it will act upon facts arising subsequent to its execution, and deprive her of the use of the property." The idea also appears in the Canadian case of McKinnon v. Lundy in the Ontario Court of Appeals, where Maclennes, J., said: "One can easily understand that, in the case of a murder committed with the very object of getting the property of the deceased by will or intestacy, the court could defeat that object, even by taking away from the crim- inal the legal title acquired by such means; and it may be that the court would go further, and take the legal title, even though the crime were committed without that object" — citing Luttrell v. Lord Waltham, cited in 14 Ves. 273, 290, and 2 W. & T. L. Cas. (6th Ed.) 611; Mes- taer v. Gillespie, 11 Ves. 639 ; Story, Eq. Jur. §§ 256, 440. When Mc- Kinnon v. Lundy reached the Supreme Court of Canada, the original opinion was reinstated, thus reversing the Ontario Court of Appeals, and holding that the heir forfeited the devise by his crime. The Chief Justice said: "The principle upon which the devisee is held in- capable of taking under the will of the person he kills is that no one can take advantage of his own wrong." The doctrine has been applied under many varying conditions, but always for the purpose of preventing the wrongdoer from profiting by his wrong. The rule that, where the execution of a deed is in- duced by fraud or force, the legal title passes, but the gr-^ntee will be treated as a constructive trustee, is too familiar to require the citation of authorities, A devisee, who by fraud or force prevents the revoca- tion of a will, will be considered a trustee for those who would be en- titled to the estate if the will had been revoked. Gains v. Gains, 2 A. K. Marsh. (Ky.) 190, 12 Am. Dec. 375; Brown v. Doane, 86 Ga. 32, 12 S. E. 179, 11 L. R. A, 381, and cases cited in note. Fraud may be practiced in order to prevent, as well as secure, a conveyance, and at law the unexpressed intention of the grantor goes for nothing. But equity will see that the wrongdoer shall not profit by his wrong, and will require him to convey the legal title in such manner as to give effect to the defeated intention of the victim. * * * The abolition of the formal distinctions between law and equity have not affected the power of a court of equity in such case. The Legislatures now, as formerly, enact statutes with full knowledge of dhe fact that the courts of equity still exercise their ordinary powers. Ch. 2) PERSONS TAKING BY DESCENT. 441 As said in Baart v. Martin, 99 Minn. 211, 108 N. W. 950, 116 Am. St. Rep. 39-i: "It must be presumed that the Legislature intended and expected that the courts of equity would remain open to parties who were able to bring themselves within the rules which require the grant- ing of equitable relief. The fact that a statute does not expressly provide that fraud shall invalidate acts authorized to be done under it does not deprive the courts of the general power to protect the rights of parties." The fact that this statute does not expressly pro- vide that a wife who murders her husband shall not inherit his estate does not by implication deprive the courts of equity of their ordinary powers to prevent the consummation of wrongs and fraud by acting directly upon and controlling the actions of individuals. It is a remarkable fact that, while cases like the present were prac- tically unknown in this country until within very recent years, they appear to have been quite common in older civilizations. The manner in which the questions were then disposed of is important only in so far as it confirms the statement of Lord Justice Fry that "no system of jurisprudence can with reason include among the rights which it enforces rights directly resulting to the person asserting them from the crime of that person." By the civil law those who, being capable of succeeding as heirs, rendered themselves unworthy thereof, were excluded from the suc- cessiofi. The causes which might thus render the heir unworthy were not limited to such as were expressly stated in the laws. They were, in fact, quite indefinite. "If there should happen," says Domat, "any other case where good morals and equity should require that an heir should be declared unworthy, it would be just to deprive him of the inheritance." Civil Law, Domat, part 2, bk. 1, t. 1, § 3 ; Mackelday, Roman Law, p. 550. In bringing about this result the civil law pro- ceeded upon what were substantially the same principles which we have found applicable under our system of equity jurisprudence. It did not regard the will as revoked or the heir disinherited by the crime. The naked legal title to the property passed to the criminal, but was thereafter taken from him. It was a case of restitution, not of revo- cation. Winscheid, Pandekten, 111, § 669, and note 1 ; lex 7, § 4, D. de bonis damnatorum (48, 20) ; D. 34, 9, de his quae ut dignis aufer- untur; Maynz, Cours, v. Ill, § 482; 8 Harv. Law Rep. p. 170. Un- der the Code Napoleon (section 727) a person who is condemned for having caused or having attempted to cause the death of the testator, or, being informed of his murder, does not divulge it to the officers of the law, is excluded from the succession. A similar provision is found in Quebec Code, §§ 610, 893. Demolembe, Sue, vol. 1, No. 217 et seq. The invocation on Mrs. Tanke's behalf of the constitutional provi- sion that no conviction shall work corruption of blood or forfeiture of €state rests upon a misapprehension of the scope and purpose of that provision. It found its way into the federal Constitution in conneC' 442 DESCENT. (Part 2 tion with the punishment for treason. It was adopted in the constitu- tional convention with little discussion as a precautionary measure suggested by the history of the English law of treason. An early act of Congress (section 24, c. 36, Acts 1790) made the prohibition general by providing that "no conviction nor judgment for any capi- tal crime shall work corruption of blood or forfeiture of estate." Sim- ilar provisions are found in the Constitutions of several states. Stim- son. Federal & State Constitutions, p. 182, note 6. By the common law a person convicted of a felony was by operation of law placed in a state of attainder, which resulted in forfeiture of estate, corruption of blood, and civil death. This result followed, not from the com- mission of the crime, but as- a result of the conviction thereof. The attainted person was not divested of his land until after office found. So, in the case of goods and chattels, forfeiture had relation only to the time of conviction, and after the commission of a felony and be- fore conviction the guilty party could make a valid sale or assignment of his personal property. 1 Blk. Com. 132; 1 Chit. Crim. L. 733; Co. Litt. § 199; Nichols v. Nichols, Plowden, 477-486; Hawkins, P. C. bk. 3, c. 49, §§ 13, 30; Perkins v. Brady, 1 Hare, 219. These provisions abolish the common-law rule by which corruption of blood and forfeiture of estate resulted from the conviction of a felony. Corruption of blood rendered the felon incapable of inheriting or of transmitting property by inheritance. Forfeiture of estate trans- ferred his property to the state. The heirs were thus deprived of their inheritance and the treasury enriched, and it was to prevent the mani- fest wrong and injustice to innocent persons which resulted from this doctrine that these constitutional provisions were adopted. As said in Wallach v. Van Riswick, 92 U. S. 202, 23 L. Ed. 473 : "No one ever doubted that it was a provision intended for the benefit of the children and the heirs alone — a declaration that the children should not bear the iniquities of the fathers." It cannot apply to a case, such as the present, where the heir is the wrongdoer and is claiming the inheritance as the result of her own wrong. If an attempt was being made to corrupt the blood of Mrs. Tanke, thus preventing her from transmitting her estate to her children and forfeiting it to the state, we would have a case within the constitutional prohibition. The decree of the probate court assigned the land in question to Mrs. Wellner, and the prevailing opinion is to the effect that this de- cree is final and conclusive as to her right to the land. It is, of course, settled that the probate courts of this state are vested by the Constitu- tion with exclusive jurisdiction over the estates of deceased persons, and their final decrees assigning the residue of an estate of a decedent, pursuant to Rev. Laws 1905, § 3790, conclude all parties in interest as to everything properly determined by the decree. Greenwood v. Mur- ray, 26 Minn. 259, 2 N. W. 945 ; Appleby v. Watkins, 95 Minn. 455, 104 N. W. 301, and other cases therein cited. But such a decree is final and conclusive only as to matters within the jurisdiction of the Ch. 2) PERSONS TAKING BY DESCENT. 443 court, which were or might properly have been determined by the court in the course of the administration of the estate. The probate court found that Welhier died seised of the lands in question, that the woman who is now known as Mrs. Tanke was the surviving spouse, and assigned the land in question to her. Upon all of these facts the decree, not having been appealed from, is now con- clusive. But the title to the real estate did not vest in the widow by virtue of the decree of the probate court. It was required to deter- mine who were the heirs of the deceased; that is, to ascertain and adjudge the fact of the identity of "the person or persons upon whom the law casts the estate in lands, tenements, and hereditaments im- mediately upon the death of the ancestor." 2 Blk. 201 ; 31 Cyc. 413. It decreed that a certain person was the surviving spouse and one of the heirs — that is, one of the persons referred to in the statute; and its determination of her heirship is conclusive. Fitzpatrick v. Simon- son Mfg. Co., 86 Minn. 147, 90 N. W. 378. It can no longer be ques- tioned that this woman was the widow of John Wellner. But the legal title to the real estate had vested in the heirs before this decree was entered. It was neither created, strengthened, nor perfected by the decree. The common-law rule with reference to the descent of the real estate of a deceased person prevails in this state, subject to modifications designed to subject such real estate, when necessary, to the payment of debts, devises, and expenses of adminis- tration. In this respect we maintain the old distinction between real and personal property. * * * It follows that upon the death of Wellner the title to his real estate passed to his heir; but Mrs. Wellner took the title subject to what- ever defects existed therein, and subject to such limitations thereon as grew out of the fraudulent and criminal methods by which it was- acquired. * * * In my judgment the widow acquired the naked legal title to this real estate, subject to the power of a court of equity to deprive her of its beneficial use and require its conveyance as justice and equity demand. The administrator never took possession. The land was not required for purposes of administration. The effect of the decree, as said by Chief Justice Gilfillan, was "to discharge the land from the administration." The decree in no way affected the character of Mrs. Wellner's title to the land. She held it after as before the decree with all its deficiencies, and a court of equity might still deprive her orf its beneficial use and require her to convey the title to her children. I therefore respectfully dissent. Jaggard, J., concurs with Eiurt of Kansas, 1908. 77 Kan. 97, 94 Pac. 155.) Graves, J.^'^ Three assignments of error have been made: (1) The plaintiff is not the owner of the note and mortgage or the real party in interest. (2) The cause of action is barred by the statute of limitations. (3) The court erred in the admission of evidence. * * * It is insisted that, when a citizen of the state of Ohio dies, the title to his personal property descends to his executor or administrator, and not to his heirs, and therefore the ownership of the note and mortgage involved in this action did not pass to M. J. Buchanan, or to the plaintiff, but they have at all times belonged to the estate of John Buchanan, deceased. Assuming, as we must in the absence of evidence to the contrary, that the law of the state of Ohio upon this subject is the same as it is in this state, we do not concur in this view. Under sections 1-32 of the law relating to descents and distributions, being chapter 33, Gen. St. 1901, the equitable title to the whole es- tate belonging to a decedent, real and personal, not exempt, descends directly to his heirs. The legal title to personal property passes to the administrator, if there be one, who holds it in trust for creditors, heirs, or legatees. Fletcher v. Wormington, 24 Kan. 264. When there are no debts, administration is unnecessary, and the heirs may collect the estate and make distribution among themselves. See 3 Redfield on Wills, p. 89; 17 Am. & Eng. Ency. of Law (2d Ed.) 742, where it is said : "If there are no creditors, the next of kin entitled to the estate may collect and make distribution among themselves without administration, but the court of probate still has jurisdiction to grant adminstration, though the estate owes no debts, and there is only one distributee." See, also, 18 Cyc. 62, where it is said : "In a number of states it is held that administration is unnecessary where there are no debts of the estate or the debts have all been paid ; the courts con- sidering that when the only duty devolving on an administrator would be to make a distribution of the estate, and the heirs or dis- tributees make or are able to make a satisfactory distribution or dis- position thereof themselves, or there is only one heir, administration would be merely a useless ceremony involving unnecessary expense, and the same is true where no administration has been applied for, and the claims of creditors, if any exist, are barred because they have not been presented to the probate court within the time limited for that purpose, or by the statute of limitations. But, if any of the heirs or distributees demand an administration, it must be had." phrase, the property would be laid in the judges of the Probate Division or possibly in the President of that Division." Maitland's Equity and the Forms of Action at Common Law, 88, 89, and note. 17 The statement of facts and part of the opinion are omitted. 518 PROBATE AND ADMINISTRATION. (Part 3 In the case of Foote v. Foote, 61 Mich. 181, 28 N. W. 90, the court said : "The legal estate only in personal property vests in the admin- istrators. The equitable estate therein is in the heirs, or other persons entitled to distributive portions thereof. The estate of the administra- tors therein is a trust for that purpose, and is created only for the purpose of laying hold of the estate and making such distribution. When there are no creditors, the heirs or legatees may collect, if they can, the estate together, and make such distribution among themselves as they may agree to and carry into effect, without the intervention of any administrators ; and the law favors such arrangements. In such cases it is only where the heirs or legatees fail to make such collec- tion and distribution that administration becomes necessary. When such arrangement and distribution have been made and executed, it will be binding, both in law and equity, as between the parties mak- ing it, whenever the rights of creditors do not intervene. And, where there are no creditors, the heirs or legatees may divide up and dis- tribute the personal property of the decedent, without converting it into money, in such manner as they see fit; and, when such division has been executed, even though it is not such as the decedent has made by his will, or such as the law would make when there is no will, it will be binding upon all the parties to the agreement." In the case of Walworth v. Abel, 52 Pa. 372, it is said : "No doubt the personal estate of a decedent vests in the administrator; but in trust for creditors and heirs or legatees. The mere legal estate passes to the administrator. The equitable descends upon the parties en- titled to distribution. If there be no creditors, the heirs have a com- plete equity in the property, and, if they choose, instead of taking letters of administration, to distribute it by arrangement made and ex- ecuted amongst themselves, where is the principle which forbids it? The parties to such an arrangement executed would be forever equita- bly estopped from disturbing it, as amongst themselves, upon the most familiar principles of justice. And why shall the arrangement be broken up by a mere intermeddler? Family arrangements are favor- ites of the law, and when fairly made are never allowed to be dis- turbed by the parties, or any other for them." The following cases are to the same effect: Needham's Adm'r v. Gillett's Adm'r, 39 Mich. 574; Waterhouse v. Churchill. 30 Colo. 415, 70 Pac. 678; McGhee v. Alexander, 104 Ala. 116, 16 South. 148; Cox v. Yeazel, 49 Neb. 343, 68 N. W. 485. In this case there were no debts, except a few of small amount, which were paid. The assets were accessible to the heirs of the in- testate, who lived where they could easily confer with each other. The appointment of an administrator was unnecessary, and the ex- penses incident thereto might well be avoided. The property be- longed to the heirs exclusively, and it seems reasonable and just that they should have the right to divide it among themselves, and own, use, and dispose of it in severalty as any other property which they Ch. 1) GRANT AND REVOCATION. 519 might own. The only person who could question such a transaction would be a creditor who had been overlooked and not paid. The pos- sibility of that contingency had passed, however, some years before this action was commenced by lapse of time; more than three years having passed since the last date at which an administrator might have been appointed. Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051 ; Kulp V. Kulp, 51 Kan. 341, 33 Pac. 1118, 21 L. R. A. 550 ; Bank v. King, 60 Kan. 737, 57 Pac. 952. The widow and each of the children of John Buchanan, deceased, testified at the trial to the settlement and division of the estate among themselves and the grandchildren of the deceased, and that it was satisfactory to all parties. The great lapse of time since the estate was settled, during which all parties have acquiesced therein and re- tained the amount received thereby is sufficient to estop them from hereafter objecting to the arrangement. The claim of the plaintiff in error that the note and mortgage are barred by the statute of limita- tions is placed upon the ground that Mary J. Buchanan did not be- come the owner thereof by the action of the heirs of John Buchanan, deceased, and therefore the payment of interest to her did not prevent the running of the statute. The view we have taken of her rights in this respect, however, answers this objection, and the question need not be further considered. This disposes of the assignments of error. No material error hav- ing been shown, the judgment is affirmed.^* 18 See Carter v. Owens, 41 Ala. 217 (1SG7), where the deceased left a will. See, also, Granger v. Harriman, 89 Minn. 303, 94 N. W. 869 (1903). But see Davenport v. Brooks, 92 Ala. 627, 9 South. 153 (1890). In 22 L. R. A. (X. S.) 454, note, the cases pro and contra on the right of the next of kin to main- tain an action in the interest of the estate under the circumstances shown in Brown v. Baxter, supra, are collected. "There is a series of decisions in this court asserting that, when an estate is left entirely free from debt, the distributees may in equity obtain distribu- tion without the delay and expense of administration. * * * "p^jg ^.^jjg ^^ be extracted from these decisions Is that a court of equity will dispense with an administration, and decree distribution directly, when it affirmatively ap- pears that, if there was an administrator, the only duty devolving on him would be distribution. Then administration is regarded as 'a useless cere- mony.' " Brickell, G. J., in Fretwell v. McLenore, 52 Ala. 124, 131, 133 (1875). See Wood v. Ford, 29 Miss. 57 (1855). So, where there is collusion between the administrator and the person sued, making such action neces- sary, the next of kin may be allowed to sue, joining the administrator as a defendant. Doran v. Simpson. 4 Ves. Jr. 651 (1'99) ; Trotter v. Mutual Reserve Fund Life Ass'n, 9 S. D. 596, 70 N. W. 843, 62 Am. St. Rep. 887 (1897); Anderson v. Goodwin. 125 Ga. 663. 54 S. E. 679. 114 Am. St. Rep. 185 (1906). On the necessity of administration and the effect of agreements dispensing therewith, see 15 L. R. A. 490, note; 112 Am. St. Rep. 729, note. In Orms- bee V. Piper, 123 Mich. 265, 82 N. W. 36 (1900), It was held that an adminis- trator, duly appointed without appeal, could not be denied the uncollected choses in action belonging to the estate just because, there being no debts, the next of kin had agreed that there should be no administration of the estate. "Ordinarily the entire title to personal property left by an intestate vests in the administrator of his estate. * * * What is the condition under which an exception to this general rule should be permitted? Obviously it 520 PROBATE AND ADMINISTRATION. (Part 3 < DUDLEY V. GATES. (Supreme Court of Michigan, 1901. 124 Mich. 446, 86 N. W. 959.) Montgomery, C. J.^" This case was decided at the June term, 1900, and is reported in 124 Mich. 440, 83 N. W. 97. A rehearing has been granted, and we have been favored with full briefs and able ar- guments by counsel. It is strenuously insisted that the court was in error in determining that on the probate of a will it is not the duty of the court to construe the terms of the will. Upon full consideration, we are thoroughly con- vinced that the former opinion correctly states the general rule. In Woerner, Adm'n, § 222, p. *485, it is said : "A court of probate deter- mines only whether the instrument propounded has been executed by the testator and attested by the witnesses in the manner prescribed by the statute, and that he possesses a sufficient testamentary capacity ; in other words, whether the instrument is the testator's spontaneous act, expressing his last will in the form recognized by law. Its approval of the will relates only to the form. Void bequests are not validated thereby, nor should the probate distinguish between valid and void, should embrace these three elemental facts: First, the absence of debts against the estate; second, the legal age of each of the heirs entitled to share in its distribution ; and, third, a unanimity among them as expressed by their agreement or acts to dispense with an administration. In the absence of these three elements, it cannot be said the title vested in the administra- tor is a^mere naked trust. If creditors exist, they have the right to an ad- ministration of the estate in the manner provided by law. If any of the heirs is of nonage, he cannot consent to a 'domestic distribution,' and his right to the protection of an administration cannot be contracted away by the others in interest. And, lastly, it may be stated as a self-evident proposi- tion that no heir against his will can be deprived of the benefit of adminis- tration. He may fear the possibility that in course of time some one may come forward with a fictitious demand against the estate, relying for suc- cess on the fact that the evidence by which it could have been refuted has I)erished, or he may prefer not to attempt to make an agreement with the other heirs for a division of the estate, but to let the law take its course. He cannot be coerced into an agreement, nor be deprived of the protection of an administration, except by consent." Johnson, J., in Griesel v. Jones, 123 Mo. App. 45, 99 S. W. 769 (1907). In Koslowski v. Neuman, 74 Neb. 704, 105 N. W. 295, 3 L. R. A. (N. S.) 704 (1905), an agreement by an intestate to let all his property at his death "de- scend to and belong to" one K., who was not an heir or one of the next of kin, was held to entitle K., as equitable owner, to retain the property agninst the administrator in the absence of a showing that the deceased left creditors. See 3 L. R. A. (N. S.) 701, note. Under the Washington statute, the testator may empower his executors •to administer his estate without the intervonlion of the probate court. Moore V. Kirkman, 19 Wash. 605, 54 Pac. 24 (1S98) ; Strand v. Stewart, 51 Wash. 685, 99 Pac. 1027 (1900). Rut the will must be admitted to probate. SIiu- feldt V. ITnghes (W'ash.) 104 Pac. 25.''> (1009). In some states a residuary legatee, by giving a bond to pay all delits and legacies, is enabled to dispense with certain probate proceedings and acquires certain peculiar rights and llnbilities. See Thompson v. Pope. 77 Neb. 338, 109 N. W. 498 (1906) and cases cited; In re Pope's Estate, Caulton v. Pope, 83 Neb. 723, 120 N. W. 191 (1909). i» Part only of the opinion on rehearing is given. Ch. 1) GRANT AND REVOCATION. 521 eertain and uncertain, rational or impossible dispositions of the tes- tator. All such questions are for the courts of construction, which are bound by the judgments of the courts of probate only as to the due execution." In addition to the cases cited in our former opinion, this holding is supported by Cox v. Cox, 101 Mo. 168, 13 S. W. 1055, and the cases cited at page *502 of Woerner, note 4. See, also, Hawes V. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481. It is true as stated in our former opinion, that the probate court, upon the distribution of the estate, may construe the will for certain purposes. * But, as was said by Campbell, C. J., in Frazer v. Circuit Judge, 39 Mich. 198, the question to be determined upon the probate of a will is the question of will or no will. But it is contended that there may be cases in which, as bearing upon the other issues in the case, it is necessary, in the probate of a will, for the court, in some measure, to construe the will. This was not denied in the former opinion, nor was it denied the contestants in this case by the trial judge. The court, in efifect, charged the jury that the provision re- lating to the establishment of a home for aged men and women was, in part at least, void in law, but declined to charge that this would invalidate the whole will, and in this, we think, he committed no error. If, as a matter of fact, the estate left was insufficient to establish a home for aged men and women, the proponent would take under the will, irrespective of the question of the validity of the trust. We can add little to what was said in our former opinion upon this sub- ject. * * * The other questions discussed on the rehearing have had full con- sideration, but we are not disposed to depart from our former hold- ing, and the judgment will stand affirmed. SECTION 3.— THE APPOINTMENT AND REMOVAL OF EX- ECUTORS AND ADMINISTRATORS ''^ JOHNSON v. JOHNSON. (Supreme CJourt of Rhode Island, 1885. 15 R. I. 109, 23 Atl. 106.) Matteson, J. This is an appeal from a decree of the court of pro- bate of Cranston, appointing an administrator of the estate of Anna Johnson, deceased. The intestate died in Cranston on the 17th day 2 An "executor" is a person named in the will, and in consequence ap- pointed by the court, to administer the estate of the testator. An '^adminis- trator" is a person, not named by a testator, appointed to administer the es- tate of a deceased An "administrator with the will annexed" (cum testa- mento annexe) is an administrator appointed to administer the estate of a testator wbere for some reason there is no executor. An "administrator de 522 PROBATE AND ADMINISTRATION. (Part 3 of January, 1885. At and for several years prior to her death she had resided in Cranston, and in the family of Charles E. Johnson, the appellee, whose wife, also deceased, was her illegitimate daughter. The appellant, Walter H. Johnson, and his sister, Mary E. Seward, wife of Charles R. Seward, of Chicago, 111., are children of the said Charles E. Johnson by his said wife, and grandchildren of the intestate. Both Charles E. Johnson and his son, the said Walter H. Johnson, made application to the court of probate to be appointed administrator. Mrs. Seward objected to the appointment of her brother, and re- quested the appointment of her father. The court appointed the fa- ther, and the son appealed. The son claimed the appointment as next of kin of the intestate, un- der Pub. St. c. 184, § 4, which is as follows : "Administration of the estate, both real and personal, of a person dying intestate, shall be granted to the widow or next of kin of the intestate, being suitable persons, and of the age of twenty-one years, or to both, as the court of probate shall think fit." On the part of the father it was argued that Pub. St. c. 184, § 4, had no application, the son not being, in con- templation of law, next of kin of the intestate, because his mother, be- ing the illegitimate daughter of the intestate, was not, at common law, of the kindred of the mother, though the same blood ran in their veins ; and that, while Pub. St. c. 187, § 7, in these words: "Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother" — has so far changed the common law as to enable il- legitimate children to take and transmit inheritances collaterally on the part of their mother, the statutes have nowhere made such illegitimate children kindred of their mother, and consequently, as the mother of the appellant was not kindred of the intestate, her son is not. If we concede the force of this argument, and grant that the appel- bonis non" is an administrator appointed to carry on tbe administration of nn estnte where for any reason a partial administration only has been had. An "administrator de bonis non cum testamento annexe" Is an administrator appointed to carry on the administi-ation of an estate where a partial admin- istration has taken place under a .probated will. A "public administrator" is an officer designated by statute to administer the estates of persons dying intestate without relatives entitled or willing to administer. In In re Es- ate of McWhirter, 235 111. 007, 85 N. E. 918 (1908), a public administrator was held entitled to administer as against the nominee of the nonresident distributees. The statutes vary somewhat. An "administrator pendente lite" is one appointed to preserve the estate pending a contest over the appoint- n.ient of a permanent executor or administrator. A "special administrator" is (1) an administrator pendente lite, and (2) an administrator for any other temporary and limited purpose. See Clemens v. Walker, 40 Ala. 189, 198 (ISOG). On administrators pendente lite, see 6 Am. & Eng. Ann. Cas. 203, note. At common law an executor of an executor was ipso facto the executor of the first testator. That rule seems still to exist in a few states. See Jep- son V. .Martin, IIG Ga. 772, 43 S. E. 75 (1902). But in most states the rule is obsolete. In the Estate of Alexander Harper, [1909] P. 88, the executors of a sole executor and universal legatee were allowed to hold the assets of the original estatfe on bond without sureties, no answer having been received to advei'tisements for creditors. Ch. 1) GRANT AND REVOCATION. 523 lant is not, in legal contemplation, next of kin to the intestate, we nev- ertheless think that he is entitled to the appointment. If he is not to be regarded as such next of kin, then no application by such next of. kin for letters of administration has been made within 30 days from the death of the intestate, and under Pub. St. c. 184, § 5, it is compe- tent for the court to commit administration to some suitable person of full age, not a member of the court. For aught that appeared at the hearing, the appellant answers these requirements of the statute. In granting administration the primary object is the interest of the estate; hence courts have deemed it their duty to place the administration in the hands of the person most likely to convert the property to the best advantage of those beneficially interested. Other things being equal, that person will be he who is entitled as distributee, in whole or in part, to the residue of the estate after the claims of creditors have been satisfied, because of his interest. It is therefore an established prin- ciple governing courts exercising probate jurisdiction that the right to the administration of the effects of an intestate follows the property in them. In re Goods of Gill, 1 Haag. Ecc. 341, 342; Wetdrill v. Wright, 2 Phillim. Ecc. 243, 248; Ellmaker's Estate, 4 Watts (Pa.) 34, 38; Sweezey v. Willis, 1 Bradf. Sur. (N. Y.) 495-497; Hall v. Thayer, 105 Mass. 219, 224, 7 Am. Rep. 513 ; Thornton v. Winston, 4 Leigh (Va.) 153, 160, 162; Clay v. Jackson, T. U. P. Charlt. 71, 73; Leverett v. Dismukes, 10 Ga. 98, 99. In 1 Will. Ex'rs 436, the author remarks that both in the common- law and spiritual courts it has always been considered that the object of the statutes of administration, 31 Edw. Ill, c. 11, and 21 Hen. VIII, c. 5, is to give the management of the property to the person who has the beneficial interest in it; and the inclination to effectuate this object has been so strong that in some instances not only the practice of the ecclesiastical court, but the decisions of the judges delegate, have not scrupled to disregard the express words of the statute ; and he cites the cases of Bridges v. Duke of Newcastle, cited by the court in West v. Willby, 3 Phillim. Ecc. 381, and Young v. Peirce, Freem. 496. In the former. Lord HoHis had died intestate, and Bridges claimed administra- tion as next of kin. The effects were vested by act of parliament in the duke of Newcastle, to pay the debts of the deceased. The judge of the prerogative court, and afterwards the delegates, held that the next of kin was excluded on the ground that he had no interest, and granted administration to the duke of Newcastle. In the latter, ad- ministration was refused by the prerogative and the delegates to a next of kin on the ground that she had released her interest, and the letters were granted to the party beneficially entitled to the personal estate. And see, also, Thornton v. Winston, 4 Leigh (Va.) 153, 163; Leverett v. Dismukes, 10 Ga. 98, 99. Under our statutes of descent and distribution (Pub. St. c. 187, §§ 1, 5, 7, 9), the appellant and his sister are the persons entitled to the sur- plus of the personal estate of the intestate after payment of her just 524 PROBATE AND ADMINISTRATION. (Part 3 debts, funeral charges, and the expenses of settling her estate. It fol- lows, therefore, that they are the persons who would, if competent, be entitled to the administration. Mrs. Seward, however, is not an applicant, and, if she were, her coverture and nonresidence would prob- ably be regarded as sufficient disqualifications to prevent her appoint- ment. If there was any good reason against appointing her brother, her wishes in regard to the appointment would be entitled to consid- eration; but, in the absence of such reason, we cannot permit them to operate to his exclusion, he being equally entitled with herself, and both competent and desirous to act. McBeth v. Hunt, 2 Strob. (S. C) 335; Heron's Estate, 6 Phila. (Pa.) 87, 88; In re Cresse, 28 N. J. Eq. 236, 237; Cobb v. Newcomb, 19 Pick. (Mass.) 336. The decree of the court below must be reversed, and letters of ad- ministration granted to the appellant. Order accordingly.* JUDGE OF PROBATE v. CHAMBERLAIN. (Superior C!ourt of Judicature of New Hampshire, 1824. 3 N. H. 129.) This was an action of debt upon a probate bond, given by the de- fendant upon his taking upon himself the burthen of executing the will of Moses Chamberlain, deceased. The defendant was defaulted, and upon a hearing of the parties as to the sum for which execution- ought to be awarded, it appeared, that the said Moses, the testator, by his will, gave to his daughter Rhoda $100, to be paid to her in one year after the decease of her mother. Rhoda having married Lemuel Wheelock, died without issue, after the decease of her father, but before the decease of her mother, leaving several brothers and sisters. The mother of Rhoda died in the year 1819. The question was, wheth- er the husband of Rhoda was entitled to the said legacy? Richardson, C. J. At the common law, administration of the es- tate of a person dying intestate, belonged of right to no particular per- son, but it was in the discretion of the ordinary to grant administration to whom he saw fit. But the statute of 21 Hen. VHI gave the ad- ministration to the next of kin ; and when there happened to be more than one of equal akin, he, who first took administration, was entitled to the surplus of the personal estate, after paying the debts. The law thus remained, until, by the statute of 22 & 23 Car. II, c. 10, ad- ministrators were made liable to make a distribution. But that statute made no express mention of a husband's administering to his wife; and as no person could be in equal degree to the wife with the hus- band, he was held not to be within the act. And the statute of 29 Car. II, c. 3, § 25, expressly declared, that the husband might demand * That an adopted child had no right as such child to administer the estate of the adopting parent was held in In re Smith's Estate, 225 Pa. 630, 74 AtL 622 (1909). Ch. 1) GRANT AND REVOCATION. 525 administration of his deceased wife's personal estate, and recover and enjoy the same, as he might have done before the statute of the 22 & 23 Car. II, c. 10. Since that time, it seems never to have been doubted, that a hus- band may administer upon his deceased wife's estate, and that he is entitled, for his own benefit, to all her chattels real, things in action, trusts, and every other species of personal property, whether actually vested in her and reduced to possession, or contingent, or recoverable only by action. And in case the husband dies before he administers, the right to administer, and to the property, goes to the heirs of the husband. [Citation of authorities.] We are therefore of the opinion that the husband of Rhoda is en- titled to the legacy given her by her father.^ ^ COX v. MORROW. (Supreme Court of Arkansas, 1854. 14 Ark. 603.) Watkins, C. J." * * * In 1808 Asa Grant died in North Caro- lina, leaving a will, one clause of which is in these words : "I further give unto my beloved wife (Jemmima) one negro woman, known by the name of Harriet, and her issue, during her natural life, and after her death the said negro woman Harriet and her issue, I give and be- queath unto my beloved daughters, Clarissa Grant and Polly Grant, to be equally divided amongst them." Jemmima Grant, the widow, mar- ried Arthur Morrow, and they moved to Tennessee, and from thence to Arkansas, where she died in the year 1848. Clarissa Grant married Eli Cox, in Tennessee, where they continue to live. Polly Grant mar- ried Hiram Williams and they moved to Texas, where she died in the year 1845, leaving several children, the issue of their marriage, who are still living. In 1849 Williams sold and conveyed all his right, title and interest in the slaves in controversy to Pack and Gates, two of the appellants. From the time of his marriage with Jemmima Grant, Morrow always had possession of Harriet and her issue, in right of his wife, and after her death, in 1848, he continued to keep them in possession, never until then claiming them as his own. The negroes now in controversy are Delia, who is the daughter of Harriet, and George, the child of Delia. Upon the refusal of Morrow to surrender them, when demanded by the appellants, they sued him by action of replevin in the detinet. The defendant pleaded non detinet, and a special plea asserting property in himself, with a traverse of property in the plaintiffs. The court sitting as a jury found upon the evidence, for the defendant, and he had judg- ment accordingly. * * * 21 Compare In re Degnan (N. J. Prerog.) 71 Atl. 668 (1908). 2 2 Part only of the opinion is given. 526 PROBATE AND ADMINISTRATION. (Part 3 3. One of the questions mainly argued is whether Williams suc- ceeded as distributee to the choses in action of his deceased wife, or her chattels not reduced into possession during the coverture; and, supposing that he would be entitled to them, whether he or any as- signee of his could bring an action for their recovery, without taking out administration upon his wife's estate and suing in a representative capacity. It will be conceded that, at the common law, the custom grew up for the husband to be entitled to receive from the ordinary the delegated power of administering upon the wife's estate, and, be- coming possessed of the goods as administrator, he was allowed to re- tain any surplus after the payment of the debts, without being required to make distribution to her next of kin. But neither the statute of 22 Car. II, requiring administrators to make distribution, nor that of 29 Car. II, exempting the husband, administering in right of his being such, from the duty of making distribution, and thus recognizing his legal right to retain the surplus, ever had any force or operation in this state. And for the source of the husband's right to administer, it would hardly be necessary to go back to the common law, superseded here by a statutory system of administration. According to the territorial law (Steele & McCamp, Dig. title "Ad- ministration," § 4) the husband or wife had the preference, before the next of kin, in administering upon the estate of the other; and that law (Id. title "Descents and Distributions") undertook to define accurately what interest the husband, surviving his wife, should take in her real estate and slaves and personal estate in possession or in action, varied by the contingencies of her dying with or without issue. The Revised Statutes, succeeding the territorial law, re-enacted so much of it (title "Administration," § 6) as required letters to be "granted to the representatives of the intestate who may apply for the same and are qualified, preferring first, the husband, or wife, or one of the persons entitled by law to a distribution of the intestate's es- tate," and though the language there used would seem as if intended to apply to a state of case, where by law the husband or wife sur- viving would succeed, as distributee, to the whole, or some part of the estate of the other, yet the statute of descents and distributions, as remodeled by the revisors, negatives any such apparent inten- tion. * * * Though an examination at large of this subject, and especially as connected with a more recent enactment of December 8, 1846, enabling married women to become seised or possessed of property, real or per- sonal, in their own right, while the former law, denying to them the general power of testamentary disposition, is retained in force, would disclose much of lamentable uncertainty and inconsistency, we have no discretion to construe away what appears to be the necessary result of the statute, whether so intended or not (1 Swift, Digest, 28 ; Reeves, Dom. Rel. 16; Bunch's Adm'r v. Hurst's Adm'r, 3 Desaus. 289, 5 Am. Dec. 551; Gough v. Crane, 3 Md. Ch. 127), and must conclude. Ch. 1) GRANT AND REVOCATION. 527 that, as the law now stands, the husband surviving' is entitled only to the preference in the administration of the estate of the wife, to en- able him to recover her choses in action not disposed of or converted by him, and her personal property, not reduced to possession during, coverture, for the purpose of paying her debts and making distribution of the surplus among her next of kin, to all of whom he is postponed in the succession. It is not pretended that two of the plaintiffs have sued here in a representative capacity ; and assuming the law to be as we have stated it, we need not inquire further whether the husband, entitled as dis- tributee of the wife's estate, should nevertheless sue as her admin- istrator, though we apprehend that in such case he would come under the general rule that, in an action at law to recqyer the personal prop- erty of an intestate, the plaintiff must derive title by or through an administrator. * * * Affirmed.^' SAXE et al. V. SAXE et al. (Supreme Court of Wisconsin, 1903. 119 Wis. 557, 97 N. W. 187.) Application by Leo E. Saxe and another for the probate of the will of Louis Saxe, deceased. At the close of the trial the circuit court found, in effect, that at the time of the probate of the will by the county court and the issuing of letters testamentary thereon to Leo E. Saxe he was legally competent to act as such executor ; that some years before Leo E. Saxe gambled at times, but the nature of such gambling was not disclosed by the evidence, and it was not proved that he was ever an habitual or professional gambler; that the evidence tended to throw suspicion upon the good faith of some of the business transac- tions of Leo E. Saxe in previous years, but not sufficient to prove ac- tual fraud and dishonesty on his part ; that the evidence failed to sus- tain the objections filed to his appointment as such executor, except in the particular that he was obnoxious to the heirs who filed such ob- jections. And as conclusions of law the court found, in effect, that Leo E. Saxe, at the time of the death of the testator and the pro- bate of the will was, and still is at the present time, legally competent to act as such executor of said last will and testament, and was entitled to the issuance of letters testamentary to him as such executor. * * * Cassoday, C. ].'"■ * * * The statute declares that: "When a 23 "In this state, administration and distribution are governed by statute. The common-law right of the liusband surviving the wife to exclusively ad- minister upon and enjoy her personal estate does not here exist." Elbert, J., in Goodrich, Adm'r, v. Treat, 3 Colo. 408, 411 (1877). Local statutes should be consulted. See, in general, 1 Woerner's American Law of Administration (2d Ed.) §§ 235, 236. On the widow's right to appoint- ment, see Id. § 237. 24 Part only of the statement of facts and of the opinion is given. 528 PROBATE AND ADMINISTRATION. (Part 3 will shall have been duly proved and allowed the county court shall issue letters testamentary thereon to the person named executor there- in, if he is legally competent and shall accept the trust and give bond as required by law." Section 3792, Rev. St. 1898. Upon the will be- ing admitted to probate, and Leo E. Saxe, named as executor therein, having been appointed as such, he immediately accepted the trust, and gave bond as required by law and the order of the county court. This being so, the important question is as to the effect to be given to the language of the section which declares that "the county court shall issue letters testamentary * ♦ * to the person named executor therein, if he is legally competent." Both the county court and the cir- cuit court found as a matter of fact and as a conclusion of law that Leo E. Saxe was legally competent to act as such executor. The findings of the court are amply supported by the evidence. There is no claim that he was wanting in mental capacity to perform the duties of executor. The objection that he was irresponsible seems to be answered by his promptly giving the requisite bond. The other objections are to the effect that he abused his stepmother, was ob- noxious to the objecting heirs, and that his character was not such as to inspire confidence and trust. The objections go to his temper, his disposition, his habits, and his moral character, rather than to his ca- pacity to do business. Are such objections available to set aside the ex- pressed wish of the testator? A recent work declares that: "An executor, according to the com- mon-law doctrine, derives his office solely from the will by which he is appointed, and not from the probate, which is held to be only evidence of his right. In many, if not all, of the states of the Union the author- ity of an executor, while derived primarily from the will, is not de- rived solely therefrom, and is not complete until the executor has qual- ified by complying with certain statutory requirements, and has re- ceived letters testamentary from a court of competent jurisdiction; but the nomination contained in the will cannot be disregarded by the court unless the person named is for some reason disqualified to ac<- as executor, and the authority of the court in the premises is limited to qualifying the executor and issuing letters testamentary, and does not extend to the appointment, as that authority pertains to the testator alone," 11 Am. & Eng. Ency. Law (2d Ed.) 744, 745, cited approv- ingly in Re Will of Somervaill, 104 Wis. 72, 74, 80 N. W. 65. To the same effect, Schouler's Ex. & Admin's (2d Ed.) § 33, Such rule is amply supported by authority. * * * The direction of the testator in naming his executor is not to be dis- regarded except as prescribed by statute. This court has recently re- versed a case for failure to follow the direction of the testator in the appointment of a person to fill a vacancy as trustee. Cole v. City of Watertown, 119 Wis. 133, 96 N. W, 538. Counsel for the appellants cite Estate of Pike, 45 Wis. 391 ; Kimball's Appeal, Id. That was a proceeding to remove an executor under a statute now embraced in Ch. 1) GRANT AND REVOCATION. 529 section 3803, Rev. St. 1898. Such statute expressly authorized the county court to remove an executor who should "neglect, after due notice given by the county court, to render his account and settle the estate according to law, or to perform any judgment of the court," or who should "abscond, or become insane, or otherwise incapable or unsuitable to discharge the trust" imposed upon him. It will be ob- served that the several things which may thus authorize removal are all such as occur after he is appointed. It is enough to say that the case at bar does not come within the provisions of that section. We must hold that Leo E. Saxe was le- gally competent to act as such executor within the meaning of section 3792, Rev. St. 1898, and hence that that statute was mandatory, and required the county court to give effect to the expressed wish of the testator by appointing him as such executor. The judgment of the circuit court is affirmed.''' In re SHAW'S ESTATE. (High Court of Justice, Probate Division. [1905] P. 92.) Probate motion. George Shaw died on August 12, 1904. He left a will and codicil dated respectively March 13, 1901, and September 3, 1902, whereby he named as his executors Richard Skerrett, George Overton Aston, Fanny Elizabeth Shaw, and Ellen Louisa Shaw. On September 2, 1904, probate was granted to all except Richard Skerrett, who had previously renounced. About September 1, 1904, Fanny Elizabeth Shaw was attacked with paralysis, rendering her unable to sign her name; and her mental faculties also became affected. Notice of motion was now filed on behalf of George Overton Aston 25 See Breen v. Kehoe. 142 Mich. 58, 105 N. W. 28, 1 L. R. A. (N. S.) 349. 11.3 Am. St. Rep. 558 (1905) : Pfefferle v. Herr (N. J. Prerog.) 71 Atl. 6S9 (1909); Clancy v. McElroy, 30 Wash. 567, 70 Pac. 1095 (1902); In re Mc- Knight's Will. 80 App. Div. 284. 80 N. Y. Supp. 251 (1903). See. also. 54 Am. Dec 518, note. On the right of nonresidents to act as executors or admin- istrators, see In re Rice's Estate, 158 INIich. 53, 122 N. W. 212 (1909) : Warren & O. V. R. Co. V. Waldrop (Ark.) 123 S. W. 792 (1909) ; In re Peele's Estate, 85 S. C. 140, 67 S. E. 135 (1910); 1 L. R. A. (N. S.) 341. note; 113 Am. St. Rep. 562, note. On the appointment of receivers for decedent's property, see 72 Am. St. Rep. 63-66, note. In McFarlan v. McFarlan, 155 Mich. 652, 119 N. W. 1108 (1909), a petition by the sole creditor of the estate to remove the widow as administratrix, on the ground that the intestate had conveyed property to her in fraud of the creditor and that the estate was insolvent, was denied because the creditor had an adequate remedy by suit in equity to set aside the conveyance. But see Flynn v. Flynn, 183 Mass. 365, 67 N. E. 314 (1903), where the court dismissed such a suit in equity. Cost. Wills— 34 530 PROBATE AND ADMINISTRATION. (Part 3 and Ellen Louisa Shaw to revoke the probate, and for a fresh grant of probate to be made to themselves, reserving power to Fanny Elizabeth Shaw to take probate if and when she should recover. The next of kin of Fanny Elizabeth Shaw had been served with notice of the motion. GoRELL Barnes, J. The note in Tristam and Coote's Probate Practice (13th Ed.) p. 191, is correct. The case of In the Goods of Sowerby is reported in 65 L. T. 764, from which it appears that the fresh grant was made, limited till such time as the lunatic executor should recover his sanity ; but when the matter came to be worked out in the registry, it was probably found that the more convenient course was not to limit the grant, but to let the other executor take probate, reserving power to the lunatic to apply to join in the probate, should he desire to do so on recovering his sanity. In the present case I revoke the probate, and make a fresh grant to the applicants, reserving power to Fanny Elizabeth Shaw to join in this grant, should she, on recovering her sanity, wish to do so. McINTYRE et al. v. PROCTOR et al. (Supreme Court of North Carolina. 1907. 145 N. C. 288, 59 S. E. 39, 13 L. R. A. [N. S.] 438.) Special proceedings by Stephen Mclntyre and another against Liz- zie G. Proctor and others to be allowed to resign, as executors of a will of Edward Knox Proctor, Jr., deceased. HOKE, J.^' The allegations of the petition relevant to the inquiry admitted by the answer and found to be true on the hearing are as follows : "(3) That your petitioners have collected all the assets belonging to said estate, and have paid all debts due by the said estate, and have in all respects complied with the terms and provisions of the said last will and testament, and have made all investments as therein pro- vided, and have satisfied all legacies to be satisfied, all of which will more fully appear from the annual accounts filed by your petitioners as executors in the office of the clerk of the superior court of Robeson county, to which said reports reference is hereby made. "(4) That your petitioners have so far administered the said trust that nothing now remains to be done except to collect the rents and profits from the real estate owned, and the dividends from the moneys invested, and to expend such portions thereof as may be necessary for the support, maintenance, and education of the family of said E. K. Proctor, Jr., as by the said will provided. "(5) That your petitioners are informed and believe that, under the terms and provisions of the said will, the said trust cannot be finally ao The statement of facts is omitted. Ch. 1) GRANT AND REVOCATION. 531 closed and settled until the youngest child of the said E. K. Proctor, Jr., attains his majority, and, inasmuch as said youngest child, Robert W. Proctor, is now of the age of about 8 years, it will be some 13 years before said trust can be finally closed and settled. "(6) That the administration of the said period of 13 years will be very expensive to the said estate, and a heavy charge upon the said children and devisees of the said E. K. Proctor, Jr., the same to be the more considered on account of the fact that the utmost economy must be used in order that there may be property sufficient to provide a sup- port, maintenance, and education for all of the said children until they attain their majority. "(7) That the widow and, all the children of the said E. K. Proc- tor, Jr., reside in the town of Lumberton, N. C, and no general or testamentary guardian has been appointed for 'the minor children. That all of the said children, except James D. Proctor, are infants and reside with their mother. "(8) That James D. Proctor, eldest son of E. K. Proctor, Jr., has attained his majority, and is now engaged in the practice of law in the town of Lumberton, N. C, and the widow and children of said E. K. Proctor, Jr., reside with him, under his care and protection. "(9) That your petitioners believe, and so allege, that it would be to the best interests of the widow and children of the said E. K. Proc- tor, Jr., if the management of the said estate and the care and control thereof could be turned over to James D. Proctor, for the reason that the said James D. Proctor, residing as he does with the others of the family, is in a better position to know their actual necessities and to exercise greater economy in their support and maintenance than can the present executors, and for the further reason that no commissions would be charged by him for his services in closing up the said trust and estate. "(10) That your petitioners have consulted Mrs. Lizzie G. Proctor, widow of E. K. Proctor, Jr., and the children who are capable of un- derstanding, and they agree with your petitioners, and are desirous, that your petitioners be allowed to resign as executors and trustees of the estate of E. K. Proctor, Jr., and that the said James D. Proctor be appointed in their place and stead. "(11) That your petitioners have consulted the said James D. Proc- tor, and he is willing to assume the duties which would be imposed upon him in case of his appointment as substituted trustee of the said estate, and he is prepared to give such bond as the court may require of him as a condition precedent to this appointment. "(12) That your petitioners are desirous of filing their last annual account, and of resigning their executorship and trusteeship in favor of the said James D. Proctor, and there are many reasons, business and sentimental, incapable of being set forth here, why it will be to the benefit of the widow and heirs at law of the said E. K. Proctor, Jr., that such change be made." 532 PROBATE AND ADMINISTRATION. (Part 3 And on these facts we think the clerk correctly ruled that he had no power to accept the proposed resignation and appoint a successor. At common law, using the term in its broadest sense, an administra- tor and executor who had duly qualified and entered on the perform- ance of his duties had no right at his own desire and for his own con- venience to resign his office, and so put aside responsibility for the further performance of his duties. This has been directly held with us in the case of Washington, Ex'r, v. Blunt; 43 N. C. 253 ; and with- out statutory authority a clerk for a like purpose has no right to per- mit such resignation. Our statutes in various sections (Revisal 1905, §§ 31-34-35-37-38) confer on the clerks the power to revoke the letters of administrations for certain reasons therein specified; section 38, containing the more general provisions on the subject, being as follows: "If it is made to appear that the person to whom the letters have been issued is legally incompetent, or has been guilty of default or misconduct in the execu- tion of his office, or that the letters have been obtained by false and fraudulent misrepresentations." And no doubt for causes specified in the statute or equivalent causes as indicated by way of suggestion only, in Tulburt v. Hollar, 102 N. C. 406, 9 S. E. 430, the clerk could permit the officer to resign and revoke the letters on such resigna- tion. But the power exists for the good of the estate and its proper ad- ministration, and should only be exercised by reason of some unfitness or unfaithfulness on the part of the trustee, and never simply for his convenience or because the parties interested may desire it. While the principle is well established, both as to administrators and ex- ecutors, it is more especially appropriate to the case of executors who are selected by the testator himself, usually because of his knowledge of their business capacity and his confidence in their integrity or both ; and, though they have in the first instance a right to decline the office, after they have accepted and are qualified, they are not afterwards permitted to resign, and voluntarily put aside its responsibilities. This case presents a good illustration of the doctrine and its proper application. A perusal of the will and the facts submitted in connec- tion with the administration indicates that there is a good amount of property to be invested and managed, and that the duties incident to the trust will continue for some length of time. The testator has selected two of his friends to administer his estate, and carry out his wishes, on account of their capacity and approved faithfulness, and they will no doubt continue to justify his confidence. There is no rea- son alleged or shown why they should be displaced, and the judgm^ent of the clerk should have been affirmed. Let this be certified and order entered accordingly. Reversed.^'' 2T But see Marsh v. People, 15 111. 284 (18.53). where the court said (page 287): "The court had power to remove him [the administrator] from ofBce, and the acceptance of his resignation may be considered as an exercise of Ch. 1) GRANT AND REVOCATION. 533 SECTION 4.— THE REVOCATION OF PROBATE AND OF ADMINISTRATION " SEMINE V. SEMINE. (Court of King's Bench, 1673. 2 Lev. 90.) Administration was granted, and the administrator by virtue there- of being possessed of a term, made a lease of the land, and after was a citation to repeal the administration, but it was affirmed ; upon which sentence of affirmation an appeal was sued, and the sentence of af- firmation thereby repealed, and the first administration repealed, and administration granted to another. And by Hale and the whole court, this new administrator shall not avoid the lease of the first adminis- trator, for this is only a repeal of the sentence in the citation, and so is in the nature of a suit on the citation; and so it is all one as if the first administration had been avoided in the suit upon the citation, and not as if the appeal had originally been brought upon the first admin- istration, which thereby had been totally annulled. 6 Co. [18b], Pack- man's Case.^® that power. The refusal of an administrator to perform the duties of his trust is a sufficient cause for revolving liis authority nnd conferring it upon another; and the removal of one of several administrators, without appoint- ing another in his place, devolves upon the others the entire management of the estate. The resignation may be regarded as a declaration by Melleu that he would no longer participate in the administration of the estate, and the acceptance bv the court as a revocation of his authority." See, also, Thayer V. Homer, 11 Mete. (Mass.) 104 (1846) ; Comstock v. Crawford, 3 Wall. 396, 18 L. Ed. 34 (1865); Balch v. Hooper, 32 Minn. 158, 20 N. W. 124 (1884); Ramp V. McDaniel, 12 Or. 108, 6 Pac. 456 (1885); 13 Prob. Rep. Ann. 325, note. On the renunciation of an executor, as distinguished from his resigna- tion, see Cooke v. Stevens, [1897] 1 Ch. 422 ; 7 Prob. Rep. Ann. 68, note. 2 8 For a discussion of the revocation of probate of a will, see 12 Prob. Rep. Ann. 218, note. 2 9 An appeal from an order appointing an administrator suspends the order. Zimmer v. Saler, 155 Mich. 388, 119 N. W. 433 (1909). That a revocation of probate will not be ordered on issues tried and deter- mined at the probate, except for fraud on the court, or for some accident, mistake, or misunderstanding in the proceedings before the court, which in justice calls for a revocation, is held in Boardman v. Hesseltine, 200 Mass. 495, 86 N. E. 931 (1909). Even in the case of fraud, the person seeking rev- ocation mav fail because of his delay. See Miller v. Miller's Estate, 69 Neb. 441, 95 N. "W. 1010 (1903). 534 PROBATE AND ADMINISTRATION. (Part 3 ALLEN V. DUNDAS. (Court of King's Bench, 1789. 3 T. R. 125.) This was an action on the case for money had and received to the use of the intestate, and to the use of the plaintiff as administrator, to which the defendant pleaded the general issue. And on the trial a special verdict was found, stating in substance as follows. The de- fendant, as treasurer of the navy, was indebted to the intestate in his lifetime in £58. 13s. 6d. for money had and received to his use. Priest- man died on the 2d of June 1784. On the 13th of August 1785, one Robert Brown proved in the Prerogative Court of the Archbishop of Canterbury, a forged paper writing, dated the 18th of May 1784, pur- porting to be the last will of Priestman, otherwise Handy, whereby he was supposed to have appointed Brown the sole executor thereof; and a probate of that supposed will issued in due form of law, under the seal of that court, on the same day, in favor of Brown. The de- fendant, not knowing the will to have been forged, and believing Brown to be the rightful executor, on Brown's request paid him £58. 13s. 6d., being the whole balance then due from the defendant to Priestman. On the 21st of July 1787, Brown was called by citation, at the suit of John Priestman the father, and next of kin of the de- ceased, in the Prerogative Court of the Archbishop of Canterbury, touching the validity of such supposed will ; and such proceedings were thereupon ha7. It was said in Wheeler v. Wheeler, supra, 'that, if a man appoint sev- eral executors, they are esteemed in law as but one person representing the testator, and that acts done by any one of them, which relate to the delivery, sift, sale or release of the testator's goods, are deeniPd the acts of all.' It would seem to follow from this principle that they have the power of joint and several agents of one priiiripal, and that any act done or performed by one. within the scope and authority of his agency, is a valid exercise of power, and binds his associates." Ruger, C. J., in Barry v. Lambert, 98 N. Y. 300, 308, 50 Am. Rep. 677 (1885). But see Smith v. Whiting, 9 Mass. 334 (1812). LiAEiriTT OF One Personal Representative for the Acts op Another. — "The defendant P. is not responsible for the devastavit of his co-executor, C, any further than he is shown to have been knowing and assenting at the time to such devastavit or misapplication of the assets of the estate. Both the execut(.is could not, with any kind of convenience, jointly possess and hold all the assets. The assets must, from the necessity and reason of the case, have been distributed between the executors, for the purpose of collection and se- curity ; and it appears to be settled, and upon very just principles, that one executor shall not be chargeable with the waste of the other except so far as he concurred therein, and that merely permitting the other to possess the assets, without going further, and concurring in the application of them, does not render him answerable for the receipts of the other. Hargthorpe v. Wil- ford, Cro. Eliz. 318; Harvey v. Blakeman, 4 Vesey, .596. Each executor is liable only' for his own acts and what he receives or applies, unless he hands over the moneys collected or received to his co-executor, or joins in the direction or misapplication of the assets." Chancellor Kent, in Sutherland v. Brush, 7 Johns. Ch. (N. Y.) 17, 22-23 (1823). To the above statement, however, should be added the following: "So, if he carelessly permit the co-executor to mis- manage or waste the estate, he becomes liable." 2 Woeruer's American Law of Administration (2d Ed.) § 349, *738. Ch. 2) TITLE AND POWERS OF EXECUTORS. 589 mortgage of February 10, 1876, and only affected the beneficial in- terest of the said James Latchford as one of the seven next of kin of George Latchford. Ross, J., having disallowed the objection, Rich- ard Latchford appealed. Lord Ashbourne, C.^* This is an appeal from an order of Judge Ross, which raises an interesting point. It appears that in the admin- istration of the business of his court he had to consider a submort- gage of a mortgage made originally for £350. The mortgage was made to a man named George Latchford, who died intestate, leaving an estate to be administered. In the course of the administration his personal representative borrowed from Mr. Henry a sum of £200 which he secured by a submortgage of the original mortgage for £350, and he stated that he required the £200 to pay some of the debts of the deceased, and also to pay a share to one of the next of kin. Mr. Henry now comes in asking for payment of this sum of £300, and he is met with the objection. This was not a mortgage made in due course of administration, and you have no right to look for payment to the proceeds of the sale of the lands. The whole question is : Is this submortgage to be regarded as made for the private purposes of the administrator, and not made by him as personal representative, as stated on the face of the mortgage, to raise £200 to be applied for the purposes of the administration? Ross, J., held it was a mortgage rightly made in due course of administration, and he overruled the objection. From that decision an appeal has been taken, and it was argued — not that the mortgage was not bona fide, not that Mr. Hen- ry's conduct was open to question — but that because the mortgagor stated to Mr. Henr}' that the money was required to pay off debts, and also to pay one of the next of kin, though it would be right so far as payment of debts is concerned, yet the whole thing is invalid, because the mortgagor stated he wanted a portion of the money to pay one of the beneficiaries. The narrow way in which the case was presented by Mr. Wilson and Mr. Brady was that though the mortgage was rightly executed, so far as the payment of debts was concerned, yet in so far as the money was used to pay one of the beneficiaries it was invalid, and that that so tainted the whole, that it would invalidate the entire mortgage. As Mr, Wilson put it, if an administrator went into the market to borrow money for the purposes of the administration, if he borrowed £1,500 for payment of debts, and £50 to pay one of the next of kin, the mortgage would be void. 1 think that in this case the payment to the next of kin might be reasonable and proper, and that Ross, J., was right in his view of the case. This was a bona fide advance to an administrator, describing himself as such, for purposes none of which were personal to himself. I am. therefore, of opinion that the order appealed from should be affirmed, and that the appeal should be dismissed with costs. 2 9 The statement of facts is rewritten and abbreviated. The opinion of Ross, J., below is omitted 590 PROBATE AND ADMINISTRATION. ' (Part 3 WalkKR, L. J. I concur. This mortgage was made twenty years ago, in 1886, eight years after the death of the intestate, at a time when there was no presumption that the debts were paid. The admin- istrator appHed for a loan, and he told Mr. Henry, to whom he applied, that he wanted the money to pay debts, and also for the purpose of making an advance to one of the next of kin. In my opinion both these objects were for the purpose of administration — (1) to pay debts; and (2) to pay one of the next of kin. The transaction did not involve a private debt, and was not a devastavit. We are asked by the appellant to say that it was a bad mortgage from first to last. That I am not prepared to lay down. I think that an advance may be obtained by an administrator to pay a portion to one of the next of kin without committing a devastavit. There is nothing to show that it was a devastavit, beyond this — that one of the objects for which the money was advanced was for the purpose of paying one of the next of kin. That is a purpose of administration, though payment of debts comes first. It is as much the duty of an administrator to pay the next of kin as to pay the debts of the deceased. Holmes, L. J. In 1886 James Latchford was the administrator of George Latchford's estate, part of which consisted of a mortgage. I am satisfied on the facts of the case that it was impossible to get in the whole of this mortgage at the time. It could not have been real- ized in the Land Judge's Court at that time, and it has not been real- ized since. Therefore, in 1886 the administrator had vested in him a mortgage which could not be realized. The administrator requiring money borrowed the amount from a lender, telling him that he wanted it to pay debts, and also to pay one of the next of kin portion of his demand. Under these circumstances the question is: Was it a good mortgage, for the ordinary purposes of administration? So far as the money raised by the mortgage was required for the payment of debts, it was a good mortgage; but I think that an administrator may also make an advance to one of the next of kin, without committing a dev- astavit, and that he can raise the money by sale or mortgage for that purpose without any illegality. That is the ground of the decision of Ross, J. ; and I think it is right.^° 80 In Russell v. Plaice, 18 Beav. 21 (1854), the power of an executor or ad- ministrator to mortgage was held to include the power to give a power of sale mortgage. Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 591 CHAPTER III THE PAYMENT OF DEBTS OF THE ESTATE SECTION 1.— CLAIMS AGAINST THE ESTATE CRAVATH V. PLYMPTON, Adm'r of Goodenow. (Supreme Judicial Court of Massachusetts, 1816. 13 Mass. 454.) This was an action on the case, originally commenced by the plain- tiff, against the said Goodenow, late a deputy under William Hildreth, Esq., late sheriff of this county, for a nonfeasance in neglecting to levy an execution for the plaintiff on the body of his debtor. The in- testate, in his lifetime, pleaded not guilty, and died before a trial of the issue. At November term, 1814, the defendant, having sued out letters of administration on the estate of Goodenow, came into court, and moved that the action should be dismissed, on the ground, that it did not survive against him. Putnam, J. It is settled in many of the books (Com. Dig. Tit. "Ad- ministration," B., 14, cites 41 Ass. pi. 15 ; Dyer, 322 ; 1 Rol. 921, 1, 20 ; 2 Inst. 382 ; 1 Saund. 21) that trespass does not lie against the executor of a gaoler for an escape; and, in the case of Hambley et al. v. Trott, Adm'r, Cowp. 371, it was decided that actions arising ex delicto, as, for assault and battery, imprisonment, trespass, words, nui- sance, and escape against the sheriff, die with the person. The principles adopted seem to be that, where the deceased, by a tortious act, acquired the property of the plaintiff, as, by cutting his trees and converting them to his own use, or by converting his goods to his own use, although no action of trover or trespass will lie, yet the law will give the plaintiff some form of action, to recover the prop- erty thus tortiously obtained. But where, by the act complained of, the deceased acquired no gain, although the plaintiff may have suffered great loss, there the rule, "Actio personalis moritur cum persona," applies. The case at bar comes within the latter branch of the rule. The de- ceased had no pecuniary benefit by reason of his wrongful act. The reparation, to which the plaintiff was entitled, was for the damages he had sustained from the tort, and not for any property the deceased had obtained. Although the statute of 1805, c. 99, § 2, has alteredthe common law in relation to suits against the executors and administrators of 592 PROBATE AND ADMINISTRATION. (Part 8 the sheriff, by providing for their liability to suits for the malfeasance or nonfeasance of the sheriff or his deputy, yet we are not disposed to extend the liability to the administrators of deputy sheriffs, as the statute has not included them in the provision. Action dismissed.^ STEBBINS V. PALMER. (Supreme Judicial Court of Massachusetts, 1822. 1 Pick. 71, 11 Am. Dec 146.) Julia Palmer, the respondent, brought an action for a breach of promise of marriage against Benjamin Stebbins, who died while the action was pending. Nearly two years after his death, she made ap- plication to the judge of probate, representing that no person had taken out letters of administration on his estate, that she was a credi- tor, and at the time of his death had an action pending against him, which had been continued from time to time, to enable her to sum- mon in any person who should be appointed administrator, and pray- ing that letters of administration might be granted to such person as the judge should think proper. It was accordingly decreed that let- ters of administration should be granted. Marytta Stebbins, the widow of Benjamin, having omitted to appeal from this decree in the ordinary way, now petitioned the court for leave to enter an appeal, pursuant to St. 1817, c. 190, § 8, alleging that her omission arose from mistake. And whether justice required a revision of the decree depended on the question whether the respondent was interested as a creditor in the es- tate of the deceased. Wilde, J. [After stating the grounds on which the court thought it reasonable that the petitioner should be permitted to enter her ap- peal, in conformity with St. 1817, c. 190, § 8, if she could show that justice required a revision of the decree, he proceeded:] This she attempts by referring us to the grounds on which the de- cree is founded, which, her counsel have argued, are insufficient in law to sustain it. They contend that no one interested in the estate 1 "The principle Involved Is : In the case of a tort directly resulting in the wrongful acquisition of property, the law imposes on the wrongdoer the duty of returning that property to the owner. This duty may be treated as a quasi contract, and the neglect to perform it may become a breach of contract. In such case the damage resulting from the tort is substantially the value of the property, and the damage resulting from the breach of contract is sub- stantially measured in the same way ; and, so for determining the question of survival, the substantial cause of action may properly be treated as founded in contract, although the form of action might sound in tort. But such prin- ciple cannot apply unless property is acquired; merely deriving benefit from the tort is not sufficient." Per Ilamersley, J., in Payne's Appeal, G5 Conn. 397, 32 Atl. 948. 33 L. R. A. 418. 48 Am. St. Uep. 215 (1895). In ILunbley v. Trott, Cowp. 371 (177G). it was held that the tort form of ac- tion was fatal to recovery, even though a quasi contractual obligation existed, and that the contract form of action must be resorted in in such case. Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATB. 593 is desirous that administration should be granted, and that there is no necessity for incurring such an expense. If this has been made to appear, the decree ought to be reversed. Generally administration ought not to be granted, except on the application of some one entitled to administration, on who is interested in the estate to be administered upon. The question then is whether the respondent is interested in, or has any claims upon, the estate of the deceased. At the time of his decease she had an action against him pending in this court, founded on the breach of a promise of marriage ; and if this action by law survives, there is good ground for granting letters of administration, whether, strictly speaking, she is a creditor or not; for in such case justice would require that administratiop should be granted, so that the action might be prosecuted to fina^ judgment. The principal question, therefore, is whether such an ac- tion by law survives. The maxim, "Actio personalis moritur cum persona," decides noth ing, for it is admitted that it is not applicable generally to contracts : and, although it commonly does apply where the cause of action is / tort, or arises ex delicto, yet in many such cases the tort may be waived and in an action founded on the principles of civil obligation dam- ages may be recovered for a trespass. Where there is a duty, as well as a wrong, an action will survive against the executor. He is respon- sible for the debts of the deceased, and for all undertakings and acts that create a debt, as far as there are assets. And it seems to make no difference, whether the debt be certain or uncertain, or whether it arises from a promise express or implied. If the cause of action has been beneficial to the testator, the executor shall be charged. "Where," says Lord Mansfield, "besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor; but if it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, the person injured has only a reparation for the delictum in damages to be assessed by a jury." Cowp. 376. The distinction seems to be between causes of action which affect the estate, and those which affect the person only ; the former survive for or against the executor, and the latter die with the person. According to this distinction, an action for the breach of a promise of marriage would not survive ; for it is a contract merely personal, at least it does not necessarily affect property. The principal ground of damages is disappointed hope; the injury complained of is violated faith, more resembling in substance deceit and fraud, than a mere common breach of promise. The damages may be. and frequently are. vindictive, and, if they could be proved against the executor, might render the estate insolvent, to the loss and injury of creditors. For these and other reasons it has been setded in England that such an ac- tion does not survive for an executor. If this was rightly settled, it is Cost. Wills— 38 594 PROBATE AND ADMINISTRATION. (Part 3 decisive, for the law is unquestionably the same, whichever party may die. The case of Chamberlain v. Williamson [2 M. & S. 408] was con- sidered as an action of the first impression, which shows at least what the law was supposed to be before. This is a consideration of no small weight, which, joined to the principles and reasoning of that case, is entirely convincing. The respondent has laid no special damages in her declaration, and has not averred in her application to the judge of probate that she has sustained any; if she has any proof to support such an averment, she may apply anew to the judge of probate, and, if administration should be granted, may commence a new action. Whether, in such an action for special damages, she would be allowed to recover full dam- ages, orVould be restricted to those which relate to property, we do not now determine. Decree of the judge of probate reversed.' JENKINS V. FRENCH. (Supreme Ck)urt of New Hampshire, 1879. 58 N. H. 532.) Assumpsit. The question reserved was, whether this action could be maintained against the administrators for unskilful treatment of the plaintiff by the deceased. Stanley, J. The precise point here presented has been decided in Vittum V. Oilman, 48 N. H. 416, and we find no good reason to doubt the correctness of that decision. It is conceded that if the action were in tort it could not be maintain- ed; but the plaintiff claims that, being in contract, a different rule prevails. 2 See Wade v. Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250 (1874) ; Chase v. Fitz, 132 Mass. 359 (1882) ; Finlay v. Chirney. 20 Q. B. D. 494 (1888). Com- pare Price V. Price, 75 N. T. 244, 31 Am. Rep. 4G3 (1878). "As before intimated, the phrase 'the allegation of special damage' undoubt- edly found its way into the books because of extreme caution on the part of the learned judges who were called upon to decide a case arising for the first time, and all the possible aspects of which it was not deemed necessary to anticipate." Ivord, J., in Chase v. Fitz. 132 Mass. 359, 3G4 (1SS2). "I know, however, of no case in which special damage has been laid and the action has been maintained, and there is no authority to enable us to decide how such a case should be dealt with. Indeed, I have grave doubts whether it would not be the wisest course to say that even with special dam- age the action will not lie, but I am not prepared upon the authorities to go that length." Lord Esher, M. R., in Finlay v. Chirney, 20 Q. B. D. 494, 499 (1888). In Johnson v. Levy, 118 La. 447, 43 South. 46, 9 L. R. A. (N. S.) 1020, 118 Am. St. Rep. 378 (1907), it was held that under the Louisiana Code one is put In such default by a demand that he comply with his engagement to marry and by a refusal on his part, that his obligation thereupon ceases to be purely personal, becomes an obligation to respond in damages, and, being therefore susceptible of fulfillment by others, sunives his death. Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATBi. 505 The general doctrine, to which this case forms no exception, is that actions for the redress of personal injuries only do not survive, and this without regard to the form. It is true, as a general proposition, that actions in form ex contractu survive, but this is due rather to the substance of the action than to its form. There are actions, such as arise from the negligence of an attorney, or of a coach proprietor, where the plaintiff seeks to recover damages, which survive, but in these the primary cause of complaint is the injury to property and rights of property, and the personal injury is incidental. The line of demarcation, separating those actions which survive from those which do not, is, that in the first the wrong complained of affects primarily and principally property and property rights, and the in- juries to the person are merely incidental, while in the latter the injury complained of is to the person, and the property and rights of prop- erty affected are incidental. This distinction is recognized in all the authorities. Broom, Max. 702; Com. Dig. "Administration," B, 15; Hambly v. Trott, Cowp. 375 ; Chamberlain v. Williamson, 2 M. & S. 408; Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146; Smith V. Sherman, 4 Cush. (Mass.) 408; Wade v. Kalbfleisch, 58 N. Y. 282, 285, 287, 17 Am. Rep. 250; Lattimore v. Simmons, 13 Serg. & R. (Pa.) 183; Chitty PI. 67, 90; Bouv. Inst. 2755, 2756. In the present case, there is no suggestion of injury to the property or property rights of the plaintiff. Her only complaint is of her per- sonal injuries by the unskilfulness of the deceased, and the action can- not be maintained. Case discharged. 3 DAVIS V. NICHOLS. (Supreme Court of Arkansas, 1891. 54 Ark. 358, 15 S. W. 880.) CoCKRiLiv, C. J. Curtner killed Nichols in a personal altercation. Nichols' widow, as administratrix of his estate, brought this suit against Curtner to recover damages. The complaint alleged that on the 22d day of January, 1886, the defendant, W. H. Curtner, wrong- fully did assault, shoot, and wound the said J. F. Nichols, her intestate, whereof the said J. F. Nichols languished, and languishing did die "on the 23d day of January, 1886." It was further alleged that the plaintiff was the widow and next of kin of the deceased ; that as such she was damaged in a large sum, and prayed judgment for that sum, and for general relief. Pending the suit, Curtner died. The question is, can the cause be revived against his administrator? The action would have abated at common law, and must abate now, unless the statute has changed the common-law rule. The only provi- 3 See Wolf V. Wall, 40 Ohio St. Ill (1883) ; Boor v. Lowrey, 103 Ind. 4G8, 3 N. E. 151, 53 Am. Rep. 519 (1885). 596 PROBATE AND ADMINISTRATION. (Part 3 sions of the law bearing upon the question are sections 5223-5226, Mansf. Dig. The first two of these sections are taken from the act of 1838, and relate to the revivor of actions ex delicto; the others are from the act of 1883, and confer upon the personal representative of the deceased a right of action for his death when it is caused by a wrongful act, neglect, or default, to be prosecuted for the benefit of the widow and next of kin. It i,s plain that whatever cause of action ' J. F. Nichols had against Curtner survived to his administrator by virtue of section 5223, referred to above, and hereinafter copied. Ward V. Blackwood, 41 Ark. 295, 48 Am. Rep. 41 ; Davis v. Railway Co., 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283. The terms of the section are specific also to the effect that the cause should survive in favor of Nichols' estate against Curtner's adminis- trator. It is plain, too, that, had Curtner lived, he would have been liable to an action by Nichols' administrator for the benefit of his widow and next of kin by virtue of sections 5225, 5226. But he is dead, and the question is, did the court err in permitting the cause to be prosecut- ed to judgment for the benefit of the widow and next of kin? The statute under which that branch of the suit was maintained authorizes an action against a wrongdoer, but it is silent as to the administrator of the wrongdoer, and, unless the provisions of the statute first cited cure the defect, the action must abate under the familiar rule of the common law that the wrongdoer and the wrong are buried together. The question has arisen frequently under statutes which, like ours, are modeled after Lord Campbell's act, and it has been decided in- variably against the right of revivor. Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787, 52 Am. Rep. 25 ; Moe v. Smiley, 125 Pa. 136, 17 Atl. 228, 3 L. R. A. 341 ; Russell v. Sunbury, 37 Ohio St. 372, 41 Am. Rep. 523 ; Green v. Thompson, 26 Minn. 500, 5 N. W. 376 ; Hamilton V. Jones, 125 Ind. 176, 25 N. E. 192. The courts were driven to that conclusion in the cases cited, because it was found that the common- law rule as to the survivability of actions had not been changed by legislation; the duty of the courts being to declare the law, and not to make it. The section of the statute from the act of 1838, already referred to, is as follows, viz.: "For wrongs done to the person or property of another an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or after his death, by his executor or administrator, against such wrongdoer, or, after his death, against his executor or administrator in the same manner and with like effect in all respects as actions founded on contract." It will be observed that this section provides that wrongs to persons or prop- erty shall be actionable, but that is only an affirmance of tlie common law. It does not, therefore, create a new cause of action or liability. It simply devolves an existing common-law right or liability upon the administrator. To that extent it abolished the common law. The in- jury to the person mentioned in the provision has been construed to Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 597 mean a bodily injury or damage of a physical character, and no other (Ward V. Blackwood, supra), and the injury to property, so far as it relates to personal property, is such only as was contemplated by the statute of 4 Edw. III., c. 7, on the same subject (Russell v. Sunbury, supra; Witters v. Foster [C. C] 26 Fed.- 737). Whether the wrong is a physical injury to the person or an injury to property, the manifest intention is to do nothing more than pre- vent a subsisting cause of action from abating by the death of a party. The meaning of the legislature is not changed, but may be more plainly seen, by turning the section into this form, viz. : "When one who is entitled to maintain an action for an injury to his person or property dies the action shall survive to his administrator ; and, if the wrong- doer dies, it shall survive against his administrator." But the cause of action which survives to the administrator upon the death of one who has received a physical injury does not inure to the benefit of the widow and next of kin. The action which is prosecuted for their benefit is not founded on survivorship but is a new cause of action, which the death itself originates. It begins when the action which sur- vives ends. Davis v. Railway Co., supra. Many cases illustrating different phases of the question may be found in the authorities referred to in Davis v. Railway Co., supra, and analogies may be drawn from the distinct causes of action which arose at common law where an actionable injury to his person was sus- tained by an infant or servant. Two actions thus grew out of the same act — one to the infant or servant for the personal injury, another to the father or master for the consequential injury, viz., the loss of service. The injury to the infant or servant was a wrong to his per- son, within the meaning of the act of 1838, but it was not a wrong to the person of the father or master, within the meaning of that act, although the action was based upon the personal injury inflicted upon the infant or servant. Such was the common-law interpretation of the father's or master's action. Waller v. Chicago, 11 111. App. 209 ; Marys' Case, 5 Coke, 201; Woodward v. Walton, 2 Bos. & P. (N. R.) 482. The case of Hegerich v. Keddie, supra, is a case in point upon the question for decision. This suit was brought for damages for the death of the plaintiff's intestate against the administrator of the wrong- doer. It seems that the suit was for the benefit of the estate as well as of the widow and next of kin. The statute of revivor construed by the court was couched in the same language as section 5223, Mansf. Dig., except that it does not embrace injuries to the person, and where the word "property" appears in our statute, the broader terms "prop- erty rights or interests" are substituted. Of this statute the court said: "The wrongs referred to in these sections are such only as are com- mitted upon the 'property rights or interests' of the testator or intestate, and to the cause of action for which the executors acquired a deriva- tive title alone. The whole scope and design of the statute is to ex- 598 PROBATE AND ADMINISTRATION. (Part 3 tend a remedy accrued to the representatives of the deceased party, and provide for the survival of an existing cause of action." i^nd in speaking of the remedy under a statute similar to our act of 1883 the opinion continues : "The cause of action here provided for does not purport to be a derivative one, but is an original right, con- ferred by the statute upon representatives for the benefit of beneficia- ries, but founded upon a wrong already actionable by existing law in favor of the party injured for his damages. The description of the actionable cause seems to have been inserted merely to characterize the nature of the act which is intended by the statute to be made ac- tionable, and to define the kind and degree of delinquency with which the defendant must be chargeable in order to subject him to the action. Whitford v. Railroad Co., 23 N. Y. 465. It will be observed also that the statute, although creating a new cause of action, 'and passed for the expressed purpose of changing the rule of the common law in re- spect to the survivability of actions, and conferring a right upon rep- resentatives which they did not before possess, does not undertake, either expressly or impliedly, to impair the equally stringent rule which precludes the maintenance of such actions against the representatives of the offending party. The plain implication from its language would, therefore, seem to be at war with the idea that the legislature intended to create a cause of action enforceable against as well as by representatives." What is there said of the injury to "property rights or interests" ap- plying only to a derivative action is applicable as well to an injury to the person under our statute. It follows, therefore, that the action cannot be revived upon the theory that it is an injury to the person within the meaning of section 5223. The case just quoted is author- ity also to the proposition that it cannot be revived, under that section, either as an injury to the "property" of the decedent or of his widow and next of kin. In Yertore v. Wiswall, 16 How. Prac. (N. Y.) 8, it was held by the Supreme Court of New York that an action for the benefit of a widow to recover damages of a common carrier for neg- ligently causing the death of her husband was a suit for an injury to her property interests, within the meaning of the statute, and that the action survived the death of the wrongdoer ; but the decision was over- ruled by the court of appeals in Hegerich v. Keddie, supra, and the doctrine of Yertore v. Wiswall has been repudiated, as we are ad- vised, wherever the question has arisen. Russell v. Sunbury, supra ; Hamilton v. Jones, supra; Moe v. Smiley, supra; Ott v. Kaufman, 68 Md. 56, 11 Atl. 580. These cases clearly show that the right of the widow to recover dam- ages for the death of her husband is not based upon an injury to prop- erty within the meaning of the statutes. It follows that the action prosecuted for the benefit of the widow abated upon the death of Curtner, and that the court erred in permitting the plaintiff to pro- Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 599 ceed to judgment against his administrator for her benefit. For thii error the judgment must be reversed. But the complaint stated a cause of action in Nichols himself, which survived to his administratrix, and she is entitled to prosecute it for the benefit of his estate. Reversed, and remanded for a new trial.* Appeal of OUAIN. (Supreme Court of Pennsylvania, 1854. 22 Pa. 510.) LowRiE, J.° In the distribution of the estate of Andrew M. Quahi, deceased, the orphans' court allowed a claim for thirty months' ground rent of a lot granted to the decedent on perpetual lease, and which, on his death, descended to his heirs. One year of this rent became due in his lifetime, and was properly charged. The question relating to that which accrued afterwards is not so plain. We are of opinion that the principle of Torr's Estate, 2 Rawle, 252, and also the principle of Dickinson v. Calahan's Adm'rs, 19 Pa. 227, exclude this part of the claim. Does a ground rent covenant survive against executors and administrators? In its usual form it binds heirs, executors, administrators, and assigns ; but still this may be sat- isfied, as to executors and administrators, if they pay the rent which accrued in the decedent's lifetime. It is a perpetual covenant, and it is totally impracticable to require it to be performed by executors and administrators ; for their office is not perpetual. If we retain the perpetuity of the covenant as against them, even with the restriction that they are to be liable only when the resort to the land is inelTectual, we still prevent all distribu- tion of the estate in their hands; and, as all the lands of the decedent are assets for the payment of debts, we constructively charge the rent of a single lot upon all his lands. 4 See Murphy v. St. Louis, I. M. & S. R. Co. (Ark.) 122 S. W. 636 (1909). But see Deviue v. Healy. 241 III. 34, 89 N. B. 251 (1909). where It is held that under the Illinois statutes the only action which may be maintained is that for the wrongful death and it survives the death of the wrongdoer. Local statutes should be consulted. Compare Garrigan v. Huntimer, 20 S. D. 182, 105 N. W. 278 (1905), where an action against a saloon keeper and his sui'oties on a bond to pay all damages adjudged to any person under the state statute for injuries by reason of the sale of liquor to persons at the time intoxicated or in the habit of getting in- toxicated was held to survive the death of the saloon keeper. In Hassaurek v. Markbreit, 68 Ohio St. 554. 67 N. E. 10G6 (1903), a provision in a divorce decree that the husband should pay the divorced wife $100 a month so long as she should live and remain unmarried was held to impose an obligation which survived his death. See, also, Martin v. Thison's Estate, 153 Mich. 516, 116 N. W. 1013, 18 L. R. A. (N. S.) 257, 126 Am. St. Rep. 537 (1908) ; Knapp v. Knapp, 134 Mass. 353 (1SS3). 5 The statement of facts is omitted, as is a sentence of the opinion and the statement of the decree entered. 600 PROBATE AND ADMINISTRATION. (Part 3 Nor will it do to hold them liable until the final settlement of the estate. If that suggestion means until all other matters are ready to be settled, then it takes away at once the character of perpetuity be- longing to the covenant, and makes its duration, as against the per- sonal estate, to depend upon the accident of the administrator's dili- gence, or of the involved or simple nature of the estate. If it means until the final settlement of the whole estate, then this perpetual cove- nant postpones it forever. This cannot be ; for the law intends the office of executor or administrator to terminate as soon as possible. It cannot be prolonged on account of perpetual covenants. Such a prolongation, or such a liability, could not have been con- templated at the creation of the ground rent. The grantor of the land cannot be presumed to have then placed any value on such a covenant ; for the personal covenant of the original grantee is as nothing in a series of tenants lasting for ever. The real security is the covenant running with the land and incumbering it; and this is the essential reliance of the owner of the rent. It is an absolute obligation, as against the administrators, or it does not bind them at all. Suppose it absolute ; then the duty must be fully performed by perpetual pay- ment, or else it must be discharged by a satisfaction or commutation; and in this latter case the rent would be discharged and the heir re- leased, a result which is certainly unintended. It is a covenant pay- able, in the contemplation of the parties, out of the profits of the land ; and it would be entirely unreasonable that the law should hold the ad- ministrator for the rent when it gives the land to the heir. * * * « LUSCOMB V. BALLARD. (Supreme Judicial Ck)urt of Massachusetts, 1855. 5 Gray, 403, 66 Am. Dec. 374.) Action of contract against the executor of Nathan Cook for services in taking care of the house and furniture of said Cook after his de- cease. There was evidence that one Osborn, named as executor in the will, but who declined to accept the trust, employed plaintiff to take care of the house; that a special administrator, afterwards ap- « On tlie ottier hand, of course, a covenant may bind the executors or ad- ministrators, though it does not purport to bind them, but only the covenantor and his heirs. "This is an action on a covenant of warranty, In which the grantor cov- enanted 'for himself and his heirs,' and It is argued that under such a cov- enant the executors are not bound, but the heir only. It Is thought that, be- cause the grantor expi-essly Included his heirs in the covenant, he has im- pliedly excluded his executors ; but this does not follow, for by binding him- self he binds his estate, so lar as it is represented by his executors, where- as the heirs could not be bound witliout exi)ress terms." Lowrie, J., in McClure's Ex'rs v. Gamble, 27 Pa. 2S8, 200 (1856). Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATD. 601 pointed, did not discharge plaintiff, but permitted him to remain. The jury returned a verdict for the plaintiff, and defendant excepted. Thomas, J. The jury have found that the defendant neither caus- ed, nor in any way assented to, the employment of the plaintiff for the services for which this suit is brought. He cannot therefore be charg- ed de bonis propriis. If not liable as of his own goods, has the estate in his hands been charged by the acts of Osborn, or the special administrator, so that there may be a judgment de bonis testatoris? We think not; but that the law is, that by a promise, the consideration of which arises after the death of the testator or intestate, the estate cannot be charged, but that the executor or administrator is personally liable on his contract. And whether the amount is to be repaid from the estate is a question for the court of probate, in the settlement of his account. The old doctrine seems to have been, that, upon any promise made after the death of the testator or intestate, the executor or adminis- trator was chargeable, if at all, as of his own goods, and not in his rep- resentative capacity. Trewinian v. Howell, Cro. Eliz. 91 ; Hawkes v. Saunders, 1 Cowp. 289 ; Jennings v. Newman, 4 Term R. 348 ; Brig- den v. Parkes, 2 Bos. & P. 434. The more recent authorities, however, have settled that an executor may, in some cases, be sued in his representative capacity on a promise made by him as executor; and a judgment had de bonis testatoris. But it will be found that, in these cases, that which constituted the consideration of the promise or the cause of action arose in the life- time of the testator. Dowse v. Coxe, 3 Bing. 26 ; Powell v. Graham, 7 Taunt. 581 ; Ashby v. Ashby, 7 Barn. & C. 444. And an action for goods sold and delivered to one as executor, or for work done for one as executor, charges the defendant personally, and not in his repre- sentative character. Corner v. Shew, 3 Mees. & W. 350. See, also, Forster v. Fuller, 6 Mass. 58, 4 Am. Dec. 87; Sumner v. Williams, 8 Mass. 162, 5 Am. Dec. 83 ; Davis v. French, 20 Me. 21, 37 Am. Dec. 36; Myer v. Cole, 12 Johns. (N. Y.) 349. In this commonwealth, an exception is made in the case of funeral expenses of the deceased. For these, the executor or administrator may be charged in his representative character, and judgment be ren- dered de bonis testatoris. But the case stands on its peculiar ground, and is to be limited to it. Hapgood v. Houghton, 10 Pick. 154. The modern English doctrine on this point is, that if the executor or administrator gives orders for the funeral, or ratifies or adopts the acts of another party who has given orders, he makes himself liable per- sonally, and not in his representative capacity. Brice v. Wilson, 8 Adol. & E. 349, note; Corner v. Shew, 3 Mees. & W. 350; 2 Wil- liams, Ex'rs. 1522. If the contract of Osborn, or of the special administrator, did not charge the estate, of course the defendant can in no form be liable. In this view of the case, it is unnecessary to consider how far the 602 PROBATE AND ADMINISTRATION. (Part 3 contract of Osborn, who was named executor in the will, but declined the trust, could bind the estate. If the executor could not so charge the estate, a fortiori one who never accepted the trust could not. Exceptions sustained.'^ TUCKER V. WHALEY. (Supreme Court of Rhode Island, 1877. 11 R. I. 543.) It appears from the bill of exceptions that one Perkins died without leaving sufficient food for his cattle. The day after the funeral the defendant and another went to the plaintiff and obtained $30 worth of hay to feed the cattle of Perkins. Subsequently the defendant was appointed administrator of Perkins' estate. At the trial in the court of common pleas the defendant testified that he gave the plain- tiff express notice when the hay was bought that it was for the Per- kins estate, and that the plaintiff must look to the estate for his pay. The plaintiff denied this, saying that he sold the hay to the defendant and did not know where it was going, though he understood from what was said by the defendant and his companion that the hay was going to Mrs. Perkins for the stock. The judge instructed the jury that it was wholly a question of fact. If credit was given to the es- tate, the verdict should be for the defendant; if credit was given to the defendant, the verdict should be for the plaintiff; and the jury should determine to which party credit really was given. To these instructions the plaintiff excepted, and after verdict for the defend- ant brought the case to this court. DurFEe;, C. J. We think the court below erred in instructing the jury that, if credit was given to the estate, the defendant could not be held. The hay procured of the plaintiff* was necessary for the sus- tenance of the cattle belonging to the estate, and ought to be paid for out of the estate, as an expense incident to the administration. But the estate can only be charged through the administrator, and the de- fendant is the administrator. He acted for the estate in procuring the hay, and, though it might be difficult to charge him if he had always 7 On contracts of executors and administrators, see 7 Prob. Rep. Ann. 594, note; 52 Am. St. Rep. 118, note. That an administrator has no au- thority to enter into a binding contract for the extension of time on a note executed by his intestate, so as to release sureties thereon, is asserted in Daviess County Banli & Trust Co. v. Wright, 129 Ky. 21, 110 S. W. 301, 17 L. R. A. (N. S.) 1122 (1908.) On the liability of a surety on the bond of an executor or an administrator for a debt contracted in the interest of the estate, see 22 L. R. A. (N. S.) 1004. note. On whether an executor or administrator is liable in his representative capacity for his o power of the exer or .TdiniTiistrator to waive the defense of the ■tatute of limitations, see 52 Am. St. Rep. 123, note; 78 Am. St. Rep. 188, citing cases pro and con. In Haskell v. Manson, 200 Mass. 599, 8G N. E. 937. 128 Am. St. Rep. 4r)2 (ItMV.J). one of the executors of a father, who had given five nonnegotiable promissorj- notes to his son, the executor of the father being also administrator of the son's estate and entitled as next of kin to one-half of the son's estate, sought as executor of the father's est-ate to waive the defense of the statute of limitations to the notes by a written acknowledgment of indebtedness and of the payment of $1 on eacb Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 605 SECTION 3.— THE PRESENTATION OF CLAIMS CROSS et al. v. LONG. (Supreme Court of Kansas. 1903. 66 Kan. 293, 71 Pac. 524.) BuRCH, J.^° * * * 'j^he only important question for determina- tion is whether appearance in probate court at a hearing upon a claim ag-ainst an estate, and consent to the allowance of such claim by one of two joint executors, without notice to or the concurrence of the other, is sufficient to bind the estate. In Clark's Adm'rs v. Parkville & G. R. R. Co., 5 Kan. 654, the record disclosed a notice to both ad- ministrators, but proof of service of such notice upon only one of them; and the syllabus of the case is as follows: "Service on one of two administrators, of notice of the presentation of a claim against the decedent's estate in the probate court, is sufficient." Since the only purpose of notice is to advise the party of the hear- ing, notice may be waived, and appearance at the hearing without ob- jection is equivalent to such waiver. And there can be no distinction between executors and administrators in this respect. Whil? it is true that in many matters the joint action of all the representatives of an estate is essential, the presentation of a claim against the estate to one of tliem is by the law of many states sufficient. 8 A. & E. Encycl. of L. § 1074. This is for the reason that all the executors are regarded in law as one person, and as having joint and entire au- thority over the whole estate, so that the act of any one of them in respect to its administration is the act of all. The decision in Clark's Adm'rs v. Parkville & G. R. R. Co., supra, has furnished the basis of probate procedure in such cases since 1865, without legislative inter- vention ; and it should not now be disturbed, even if its doctrine were not entirely satisfactory. Since, under its authority, notice to one rep- resentative is sufficient to bind the estate, it must follow that the ap- pearance and consent of one alone is likewise sufficient. The judgment of the district court is therefore affirmed. note joined in by a second executor, but against the objection of the third executor. To a bill brought by the administrator of the son's estate against the executors of the father's estate, the protesting executor pleaded the statute of limitations. The court decided that, because the executor who was next of kin to the son was thereby to profit out of the acknowledg- ment, it could be set aside by any one interested, even if othei-wise the ac- knowledgment would be all right. The court pointed out that "it has never been decided in ^Massachusetts that a payment made by one of two executors against the objection of his coexecutor upon a note which was barred by the statute in the lifetime of the testator would revive the note, nor has it been so decided in England. The Lords Justices of the Court of Appeal, in a late case, preferred to leave this subject open for future consideration. Midgly V. Midgly, [1893] 3 Ch. 282." 10 Part only of the opinion is given. «' 606 PROBATE AND ADMINISTRATION. (Part 3 HALL V. GREENE. (Supreme Court of Rhode Island, 1902. 24 R. I. 286, 52 Atl. 1087.) Douglas, J. In this case the plaintiff, as administrator, sued the defendant in assumpsit for the price of a chattel sold by his intestate. Defendant pleaded in set-off a claim against the intestate of a char- acter which would have been available in set-off if the action had been brought by the intestate in his lifetime. To the introduction of evi- dence in support of this claim the plaintiff objected on the ground that the claim had not been presented to the administrator for allow- ance or rejection as required by statute. The objection was allowed by the court, the evidence was excluded, and the defendant duly ex- cepted to the ruling, and now alleges it as ground for a new trial. We think the ruling would have been correct if it had been made up on a replication to the plea. The right of set-off at common law is purely statutory. The effect of the statute is to allow the trial together of two cross-actions between the same parties, and each claim must stand or fall upon its own merits. Our statute does not permit this unless the claim presented in set-off is one which the holder may pres- ently sue in his own name. In the case of mutual claims between an insolvent estate and a creditor or a debtor, as we have recently decided in the case of Troup v. Bank, 24 R. I. 377, 53 Atl. 122, set-off takes place by operation of law upon principles of equity, and independently of the statute ; but the considerations which govern in that case have no application to an estate which is solvent. Upon a similar provision to the one we are considering, the Supreme Court of New Hampshire held that a claim not presented to the administrator could not be al- lowed in set-off. Jones v. Jones, 21 N. H. 219, We think, however, that by joining issue upon the plea in set-off the plaintiff has waived his rights to the objection. The defendant's claim, so pleaded, is to all intents and purposes an action against the administrator. It was prematurely brought, and, if the administrator had pleaded the fact, must have been abated. Instead of urging the matter in abatement, he joins issue and goes to trial on the merits of the claim. The question which came before the court was then one of evidence, and it is not contended that the evidence offered was not pertinent to the issue joined. It was too late to change the pleadings after the case had been opened to the jury. New trial grantcd.^^ u See Moore v. Gould, 151 Cal. 723. 91 Pac. 616 (1907); Cohn v. Carter, 92 Miss. 027. 40 South. 00 (190S). In Helms v. Harclerode, 65 Kan. 73G, 70 Pac. 800 (1902), It is held that, where a claim is allowed against an in- solvent estate in favor of a debtor of the estate, the debtor, when sued for bis debt, may set off the full amount of his allowed claim. But in Van Dusen v. Topeka Woolen Mill Co., 74 Kan. 437, 87 Pac. 74 (1900), it is held tJiat a debtor to an insolvent estate may not set ofC against his debt a claim against the estate bought by him at a discount after decedent's death. Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 607 MUTUAL BENEFIT LIFE INS. CO. v. HOWELL. (Court of Chancery of New Jersey, 1S80. 32 N. J. Eq. 146.) Bill to foreclose. On final hearing on bill and answer. The Chancellor [Theodore Runyon]. The question presented for decision is, whether the complainant is entitled to a decree for de- ficiency against the administrators of the estate of John S. Smith, de- ceased. The liability of the estate to a decree for deficiency is based on an assumption, by the intestate, of the complainant's mortgage, in a deed from the mortgagor to him for the mortgaged premises, and a bond given to the complainant by the intestate, with condition to pay to the complainant the mortgage debt in one year from the date of the bond, February 24, 1876, with interest. The intestate died in March, 1878, and the bill was filed in November of that year. The intestate, at the time of his death, lived in Morris county. The ad- ministrators took an order, April 6, 1878, to limit creditors in nine months from that date. The nine months expired in January, 1879. The complainant has never presented any claim against the estate, unless the filing of the bill for foreclosure, praying a decree for de- ficiency, may be so considered. By their answer, the defendants claim that they have complied with the requisites of the statute as to publication of the order, and that the complainant, not having presented its claim, according to law, within the time limited by the order, is barred of all action against them therefor. The complainant might have presented its claim un- der the order to limit creditors. It had the intestate's bond, a legal liability for the payment of the debt, in addition to the equitable claim arising upon the assumption. The filing of the bill cannot be regarded as equivalent to doing so. The statute provides that when an order to bring in debts and • On set-off or counterclaim as affecting estates of deceased persons, see 8 Prob. Rep. Ann. 331, note. "A furtlier objection is made ttiat the items set out in the answer as a payment on the note were never presented to the probate court as a claim against the estate of the deceased, and allowed by the court. If these Items were pleaded as a set-off, this objection would be good; but such is not the case. The items [four for work and labor at an agreed price] are set up as payments made upon the note, it being specifically alleged that Hass [plaintiffs intestate] agreed to credit these several items on the note as a payment of so much cash." Duffie, C. in Parker v. Wells, 68 Neb. 647 649. 94 N. W. 717, 718 (1903). See Printy v. Cahill, 235 111. 534, So N. E. 7.53 (1908). ..... .... While courts of law can recognize only claims presented in time, it has been held that an allowance by the probate court of a claim presented after the time fixed by statute is not an error going to the jurisdiction. O'Brien V. Larson, 71 Minn. 371, 74 N. W. 148 (1S9S). On whether an executor or administrator is in such privity with a legatee, distributee, or creditor that he may assert a personal defense of the latter to a claim against the estate, see 8 L. R. A. (N. S.) 212, note. On the binding effect on the administrator of the settlement by the sole distributee of a claim belonging to the estate, see 11 L. R. A. (N. S.) 148. 608 PROBATE AND ADMINISTRATION. (Part 3 claims against the estate of any decedent shall be made, all claims and demands of the creditors of the deceased shall be presented in writing, specifying the amount claimed and the particulars of the claim, and shall be verified under oath, or the bringing in of the same shall be of no effect. Rev. p. 764. It also provides that any creditor who shall have neglected to bring in his debt, demand or claim within the time limited, shall, by the final decree to be made after the expiration of the limited period, be forever barred of his action against the executor or administrator, unless, after the final settlement of the account of the executor or administrator, such creditor shall find some other estate not accounted for; in which case he shall be entitled to have his debt, demand or claim paid thereout, or to a ratable proportion thereof in case other creditors shall be barred of their debts, demands or claims. Id. Not having complied with the provisions of the law, the complain- ant is absolutely barred of its action against the administrators. Ryan V. Flanagan's Adm'x, 38 N. J. Law, 161.^2 Where an executor or administrator is sued in a foreclosure suit for deficiency, unless it appears to be clear that a decree should be made against him, requiring him to pay the deficiency as soon as it shall have been ascertained, and consequently that no rights of other creditors will be prejudiced by such decree and the execution thereof, there will be no decree against him. The decree, if made at all, un- less where the executor or administrator is liable at law or in equitv to the payment of the deficiency, will be for the payment of the de- ficiency only in a due course of administration. The statute (Rev. p. 119) authorizes this court to make a decree for deficiency against any party to the suit who is liable at law or in equity for the payment thereof, and unless the executors or administrator is liable at law or in equity to pay the deficiency, there will be no decree. Leonard v. Morris, 9 Paige (N. Y.) 90; Jones on Mort. § 1717. Of course, where it appears that the action against the executor or administrator is barred, no decree will be made against him. Rhodes V. Evans, Clarke's Ch. (N. Y.) 169. There will be none in this case.^^ 12 But In Clayton v. Dinwoodey, 33 Utah, 251, 93 Pac. 723 (1908), it was hold that the commcfnceinent of a suit by the filing of a verified complaint containing all the averments required in a presented claim and the service of the complaint upon the executors within the time fixed for presenting claims operated as a presentation of the claim. Compare Moss v. Mosley, 148 Ala. 1(;8. 41 South. 1012 (1000). The cases on the point are collected in 14 Am. vV: Eng. Ann. Cas. 931, note. IS On the effect on the mortgage of a failure to present a claim, see Town- send v. Thompson, 24 Colo. 411, 51 Pac. 433 (1897) ; Athearn v. Ryan, 154 C"al. 554. 98 Pac. 390 (1908). Kirman v. Powning, 25 Nev. 378, 60 Pac 8P,i. 01 Pac. 1090 (1900); Mathew v. Mathevv, 138 Gal. 334, 71 Pac. 344 (1J)03). But see Bush v. Adams, 22 Fla. 177 (1886). Extent of Claim of Secuked Creditor Having Insufficient Security. — "Now the chief thing that we have to notice in this region is an old rule Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 609 THOMAS V. CHAMBERLAIN. (Supreme Court of Ohio, 1883. 39 Ohio St. 112.) McIlvaine, J.^* * * * f he only question which remains to be considered, as arising upon the demurrer to the sixth defense, as it appears to us, is that the plaintiff's claim was not allowed by Thomas as executor of Truex, within the period of four years after his giving bond as such executor. During the whole of this period Thomas was executor of the cred- itor as well as of the debtor estate. In such double relation he could of equity about the rights of a creditor who has a security, but an insuffi- cient security, for his debt. A. dies owing X £2,000, and his debt is secured by a mortgage of Blackacre. X. realizes his security. He sells Blackacre, but the sale produces only £1,000. Well, of course, X. is still entitled to be paid another £1,000, and if A.'s estate is sufficient for the payment of all his debts then X. will get that other £1,000. But suppose that A.'s estate is insolvent; X. will certainly be entitled to something besides the £1,000 that he got out of Blackacre. It would, I think, be natural to say that X.'s right is to prove against the testator's estate a debt of £1,000, and take a dividend, whatever it may be, say five shillings in the pound, proportional to that debt of £1,000; for £1,000 is what is due to him after Blackacre has been sold. Now that was the rule to which the Gouvt of Bankruptcy came in the administration of the insolvent estates of living persons. Its rule was thie: The creditor with an insufficient security may do one of two things: He may abandon his security (abandon Blackacre) and prove for his whole debt (prove for £2,000), or he may realize his security and prove for what still remains due to him after such realization. Thus In the case I have put he may pocket £1,000, the price of Blackacre, and then claim a dividend on the other £1,000 which still remains due to him. But the Court of Chancery in its administration of the estates of dead per- sons came to another rule, usually known as the rule in Mason v. Bogg [(1837) 2 My. & Cr. 443]. The mortgagee may realize his security, and may also prove against the general estate for the whole of his debt, provided always that he is not to get more than twenty shillings in the pound. Thus in our case X. might keep the £1,000 that he gets from the sale of Black- acre, and then he may also prove against the general estate of the dead man for the whole £2,000; but, of course, he is not to get in all more than the whole debt, the whole £2,000 that is due to him. This rule may seem to you unjust, and it has seemed unjust to Parliament. It seems to favor the se- cured creditor unduly at the expense of unsecured creditors. However you can see that there was a certain logic in it. The mortgagee has two distinct rights, the right in personam, the personal right against the debtor, and the real right, the right in Blackacre. Why should he not use both of these? Why should the fact that he has used one of them hamper him when he desires to make good the other? He sells Blackacre. Well and good; but the dead man owed him £2.000. Why should he not prove against the dead man's estate for the whole of this debt? However, it is needless now to consider whether or no there was much justice in this reasoning ; for a sec- tion of the judicature act of 1875 — section 10 — declared in effect that in the administration of the estates of dead persons the bankruptcy rule was to prevail as between the secured and the unsecured creditors." Maitland's Equity and the Forms of Action at Common Law, 194, 195. For the conflict of authority in the United States on this point, see 2 ■^^1 ■ — -■ ■ ■ ' I. I . ■ ■ ■ ■ III. . .. — - — ■ — ■■■ -.1.. .^ ■ I . " ■'■■■- 14 The statement of facts is omitted, and part only of the opinion is given Cost. Wills— 39 610 PROBATE AND ADMINISTRATION. (Part 3 not deal or contract with himself, but whenever funds belonging to the debtor estate and applicable to the payment of the creditor estate came into his hands, he was bound to treat the same as assets of the cred- itor estate, to the extent of the indebtedness. If mistakes occur in making transfer of such accounts, they may be corrected on settle- ment of his final accounts with the probate court. No formal "allow- ance" of the claim was necessary ; but if it were, the credits endorsed upon the notes during the double relation, sufficiently show that such allowance was made. We find no error in the record of the court of common pleas, for which the judgment of that court should have been reversed.^^ Woerner's Americfin Law of Administration (2d Ed.) § 40S. Local statutes should be consulted. If in the case of Mutual Benefit Life Ins. Co. v. Howell, supra, there had been no bond, the court would probably have held the claim contingent and not provable until the existence of a deficiency was established. Terhune V. White, 34 N. J. Eq. 98 (1881). OoMTiNGENT Claijis.— On coutinsent claims, see 2 Woerner's American Law of Administration (2d Ed.) § 394; 58 L. R. A. 82, note. See, also. Zol- liclioffer v. Seth. reported post, p. 692. That in some states contingent claims must be presented within the time for presenting other claims, or they will be barred, though the estate has not been closed, see Barto v. Stewart. 21 Wash. 605. 59 Pac. 480 (1899). If a contingent claim becomes absolute within the time for presenting claims, and is not presented, it is barred. Jorgenson v. Larson, 85 Minn. 134, 88 N. W. 439 (1901). That a claim pavable at the death of a particular person is not contingent, see Farris v.' Stoutz, 78 Ala. 130 (1884) ; Brown's Ex'r v. Dunn's Estate, 75 Vt. 2(>4, 55 Atl. 364 (1903). In the latter case it is said (75 Vt., at page 269, 55 Atl., at page 366): "The fact that the time of payment is uncertain does not make a claim contingent when, as in this case, the time of payment is sure to arrive at some future day. A contingent claim, within the mean- ing of V. S. 2517, is one that cannot be proved as a debt before the com- missioners, or allowed by them, because the liability is dependent upon some future event which may or may not happen, and therefore cannot be deter- mined within the time allowed for proving claims before the commissioners." So, also, the mere fact that an accounting is necessary to determine the amount due does not make the claim contingent. Davis v. Davis, 137 Wis. 640, no N. W. 334 (1909). 15 But see State v. Bidlingmaier, 26 Mo. 483 (1858). See Brown v. Green, 181 Mass. 109, (J3 N. E. 2, 92 Am. St. Rep. 404 (1902), which holds that the executor need not present his own claim against the estate within the time fixed for presentation of claims, but may retain assets to pay it and account accordingly. See. also. Sanderson's Adm'rs v. Sander.son, 17 Fla. 820 (1880). In some states the matter is governed by special statute. See Farrow v, Mevin. 44 Or. 496, 75 Pac. 711 (1904). In still others the administrator must present a claim to himself or be barred, even though there is no statute sjiecifjcally mentioning his case. In re Bright's Estate, 157 Mich. 220, 121 N. W. 74S (1909). In In re Ring's Estate, 1.32 Iowa. 216, 109 N. W. 710 (1906). the court refused to relieve the administrator from his failure to file his claim through lack of knowledge that it was required. The court said: VHis mistake was purely one of law, and due wholly to his own neglect. His only excuse Is that he did not think it neces.'^ary to file claims. Surely that is not an equitable circumstance which will justify the relief sought." It should be noted that "the common-law rule allowing executors and administrators to retain for their own debts in preference to other creditors is repudiated, It is believed, in all the states." 2 Woerner's American Law of Administra- Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. Gil SECTION 3.— PRIORITIES BETWEEN CLAIMS "At common law the personal representative was required to pay the claims against the estate of the decedent in the following order: (1) The necessary funeral expenses, the extent of which was fixed by the condition and rank of the decedent; (2) the necessary expenses of the administration; (3) debts of record due to the crown; (4) debts of record due to subjects, which included judgments, decrees, statutes, and recognizances; (5) debts by specialty, founded upon a valuable consideration, and debts for rent ; ( 6) simple contract debts, based up- on valuable consideration; (7) voluntary bonds or covenants; (8) other voluntary debts." 8 Am. & Eng. Ency. Law (2d Ed.) 1034.^' LEWIS et al v. RUTHERFORD. (Supreme Court of Arkansas, 1903. 71 Ark. 218, 72 S. W. 373.) Petition by Georgiana A. Lewis and others for an order requiring R. B. Rutherford, administrator of the ancillary estate of G. W. Lewis, deceased, to pay over to the administratrix of the principal estate, in another state, so much of the assets in his hands as would give all creditors of the deceased an equal per cent, of their debts. From an order dismissing the petition, the petitioners appeal. Affirmed. Appellants presented to the probate court of Sebastian county a pe- tition in which they state: * * * That the probate court of the Ft. Smith district of Sebastian county, Arkansas, had allowed $3,- 676.16 against the ancillary estate; that the probate court of Barry county, Missouri, had allowed debts amounting to $6,789.04 against the principal estate, and the assets in the hands of the primary admin- istratrix, which included all of the property belonging to the estate, aside from that in the hands of said R. B. Rutherford, amounted to $868.53. * * * Petitioners asked that out of the assets in the hands of R. B. Rutherford, ancillary administrator, a sufficient amount tion (2d Ed.) § 395. On the common-law right of retainer, see Davies v. Parry [1899] 1 Ch. 602. On whether a provision in a will for the payment of a debt dispenses with the necessity of presenting or proving the claim, see 15 Am. & Eng. Ann. Cas. 624. note. The United States as Claimant. — In U. S. v. Bean (D. C.) 120 Fed. (19 (1903), it was held that the United States, unless specially named, is not governed by the state statute requiring claims to be first presented to the executor or administrator for allowance before action can be maintained upon them. See, also, Pond v. Dougherty, 6 Cal. App. 686, 92 Pac. 1035 (1907). la In the United States the order of priority has been much simplified by statutes. The local statutes should be consulted. 612 PROBATE AND ADMINISTRATION (Part 3 be set aside and turned over to G. A. Lewis, the primary administra- trix, to give to all of the lawful creditors an equal per cent, of their debts. To this petition R. B. Rutherford interposed the followmg demurrer, to wit : "Now comes administrator herein, and demurs to the petition of Georgiana Lewis et al., and for cause thereof says that * * * it appears from said petition that petitioners reside in the_ state of Mis- souri, in which state the primary or domiciliary administration upon the estate of the said G. W. Lewis, deceased, is pending, and that the defendant administrator herein is the ancillary administrator of the said estate in Arkansas, and that there are debts due creditors residing in this state from the said estate, more than there are assets in this administration sufficient to pay ofif and discharge, so that, after the pay- ment of the claims of the resident creditors, there will not be any es- tate remaining in the hands of this administrator." The court sustained the demurrer and rendered judgment dismissing the petition. , . Wood, J.^^ * * * There are authorities which hold that it is the duty' of an ancillary administrator to retain the funds in his hands for a pro rata distribution, according to the laws of the state of his administration, among the citizens thereof, having regard to all the assets, both in the hands of the principal administrator and the an- cillary ^administrator, and having regard, also, to the whole of the debts which by the laws of either state are payable out of those as- sets. Dawes, Judge, etc., v. Head, 3 Pick. (Mass.) 128 ; Davis v. Estey, 8 Pick. (Mass.) 476; Miner v. Austin, 45 Iowa, 221, 24 Am. Rep. 763. Other authorities hold that it is the duty of the ancillary administra- tor to satisfy in full the creditors of his jurisdiction, even though the principal administration be insolvent. In other words, that it is the duty of the ancillary administrator to protect only home creditors. Wharton, Con. Laws, § 640 ; Minor, Con. Law, p. 250 ; Smith v. Bank, 5 Pet. 518, 8 L. Ed. 212. Our own court, in Shegogg v. Perkins, 34 Ark. 117, said: "The only duty devolving upon the [ancillary] administrator was to collect the assets here, and to appropriate so much of the avails of the same to the payment of debts due to our citizens as would be authorized by the general solvency or insolvency of the estate of the deceased, and remit the balance to the place of primary administration." This seems to recognize the former of the above views as correct. But this language of our court was dictum; the question in Shegogg v. Perkins being whether the ancillary administrator in Arkansas could allow the claim of a Tennessee creditor, as in the case of a local or Arkansas creditor. The question of insolvency was not involved. We are not called upon in this proceeding to decide between these con- tTThe statement of facts Is abbreviated, and part only of the opinion is gtveii. Ch, 3) THE PAYMENT OP DEBTS OF THE ESTATE. 613 flicting views. Because, even if it be conceded that the view as ex- pressed in Shegogg v. Perkins as to the duty of the ancillary admin- istrator be correct, still we are clearly of the opinion that the probate court, with its limited jurisdiction, is not the forum to determine the question of the general solvency or insolvency of the estate of the de- ceased, and the questions of the priorities and preferences under the varying laws of the different jurisdictions that might arise between the creditors. The rules of procedure and the machinery of the probate court are not sufficient for this purpose. * * * We are not called upon to decide whether appellants would have rights in a court of equity, and we do not decide that question. Af- firmed.^* SECTION 4.— PRIORITIES OF CREDITORS OVER LEGA- TEES AND NEXT OF KIN SIMMONS V. BOLLAND. (High Court of Chancery, 1817. 3 Mer. 547.) By indenture of lease dated the 33d of July 1798, the mayor and commonalty of Canterbury demised to Simmons (one of the aldermen of their corporation), his executors, administrators, etc., for thirty years, at a certain rent, and under covenants for payment of rent and taxes, and for repairs, etc., on nonperformance of all or any of which covenants, it was declared that the lease should be void, and a power of re-entry was reserved. Simmons, the lessee, by his will, gave all his real estates, and all his leaseholds and personal estate, to the defendant Bolland and another (whom he also appointed his executors), upon trust to sell; and after payment thereout of debts and legacies, to invest the produce in their names upon certain trusts, subject to which he gave the entire residue 18 In Ramsay v. Ramsay, 196 111. 179. 63 N. E. 618 (1902), it was held that creditors of an Insolvent Illinois decedent, who had received part of their claims from the proceeds of property of the estate in Missouri, must de- duct such amount before sharing in the assets in Illinois. The Missouri and Illinois statutes on the matter are there considered. A nonresident cred- itor will be allowed, either through comity (McKee v. Dodd, 152 Cal. 637, 93 Pac. 854, 14 L. R. A. [N. S.] 780, 125 Am. St. Rep. 82 [1908]), or of right, under the privileges and immunities clause of the United States Constitution (Goodall v. Marshall, 11 N. H. 88, 95, 35 Am. Dec. 472 [1840]), to present his claim, whether the administration is primary or ancillary. Compare In re Colburn's Estate, 153 Mich. 206, 116 N. W. 986, 126 Am. St. Rep. 479 (1908). That claims are barred under the statutes of nonclaim of one state is immaterial, if they are not barred under such statutes of the state where the claims are presented. Wilson v. Hartford Fire Ins. Co., 164 Fed. 817, 90 C. C. A. 593 19 L. R. A. (N. S.) 553 (1908). See, also, 19 L. R. A. (N. a.) '553, note. 614 PROBATE AND ADMINISTRATION. ' (Part 3 of his estate to the plaintiff on his attainment of the age of twenty- five years. The testator died in 1807, leaving the plaintiff his son, then a minor. The trtistees and executors proved the will, possessed themselves of the whole of the testator's estate real and personal, and paid the debts and legacies without resorting to a sale of the real estate or of the lease- holds, into the possession of which (including the premises demised by the said indenture of lease) the plaintiff, on his attaining twenty-five, en- tered ; at which time also, the entire residue of the personal estate was transferred to him by the executors, except a bond for £1,000 from the mayor and commonalty of Canterbury, under their corhmon seal, to the testator ; and a sum of £800, 5 per cents., which were still retained by them out of the surplus, and for the recovery of which the present bill was filed. To this bill the defendant, the surviving trustee and executor, by his answer submitted that he was entitled to retain the property in ques- tion, "for the purpose of protecting himself from any claim which might be made against him as devisee in trust and executor of Simmons deceased, in respect of rent due or thereafter to accrue due for the premises demised by the said indenture, or of the present or any future breach or nonperformance of any of the covenants therein contained, the payment of which rent, and performance of which covenants, the defendant was advised he was liable to under the said indenture." and had actually then lately received a notice to that effect from the cor- poration. He at the same time admitted that there were then no sub- sisting breaches of covenant in respect of which he was so liable, and that no rent was then due or in arrear for the premises, but insisted that, under the circumstances, he was entitled to retain as aforesaid, in respect of any future contingent demands, to which the notice given by the corporation also extended. The Master of the Rolls [Sir Wm. Grant]. The equitable re- lief sought in this case depends upon a legal question, whether an executor can safely make payment of legacies, or deliver over a residue while there is an outstanding covenant of his testator, which has not yet been, and never may be broken. This question was very much dis- cussed in a case (of Eeles v. Lambert) reported both by Styles and by Aleyn (Styles, 37, 54, 73; Aleyn, 38), the ultimate judgment in which is not, however, stated by either. There is also a case of Nector and Sharp V. Gennet, in Cro. Eliz. 466, where the same question arose, though in a dift'erent shape. A legatee sued in the ecclesiastical court for his legacy. The executors pleaded that the testator, who was keeper of a prison, was bound in an obligation to the sheriff (to an amount exceeding the entire value of his property) for the safe keeping of the prisoners committed to his charge; which obligation had become forfeited in consequence of a judgment against the sheriffs on an action for an escape ; and the executors had therefore nothing in their hands to answer the demand. This plea was disallowed, whereupon a pro- Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. C15 hibition was sued, which being demurred to, the defendant prayed a consultation. Upon this the principal question was, whether the escape was such that the sheriff was suable in respect of it? for, if not, the bond was not forfeited; and, if the bond was not forfeited, then it was said to be plain that the legacy should be first paid ; and, to this purpose, it was argued, that by the civil law, the legatary must enter into a bond, to make restitution if the obligation should be afterwards recovered, so there was no inconvenience to any. To which the whole court agreed, and determined that it was no plea, unless the obligation were for- feited. Coke said, "The difference is, when the obligation is for the payment of a lesser sum at a day to come, it shall be a good plea against the legatee before the day ; for it is a duty maintenant, which is in the condition (as 9 Edw. IV, 12). But otherwise it is, where a statute or obligation is for the performance of covenants, or to do a collateral thing. There, until it be forfeited, it is not any plea against a legatee ; for peradventure it shall never be forfeited, and may lie in perpetuum, and so no will should be performed." The majority of the judges being of opinion that there was no forfeiture, a consultation was awarded, the effect of which, as far as it regards the present ques- tion, was to leave the spiritual court to proceed according to theii own established course — namely, to compel the legatee to give securit}- to refund the legacy, in case of the executors becoming afterwards liable to be sued upon the bond. In the argument of Eeles v. Lambert, this case is noticed by Rolle, Justice: "It was Nectgr and Sharp's Case, 38 Eliz. that legacies ought to be paid conditionally, viz. to be restored if the covenant should be broken." Styles, 56. In Hawkins v. Day, Amb. 160, Lord Hardwicke makes a distinction between simple contract debts and legacies ; and seems to entertain a clear opinion that even an unbroken covenant renders it unjustifiable for an executor to pay a legacy. I see no reason to doubt the accuracy of Ambler's report of this case; for his statement is found to cor- respond with the register's book, and although, in the order overruling the exceptions, particular legacies are specified, yet it appears, by a ref- erence which has been made to the master's report, that they were the only legacies stated to have been paid ; and they must have been paid before the forfeiture by breach of the covenants. Lord Hardwicke stating the question with respect to them to be, "Whether payment ot the assets, before there was any breach of the condition, ought to be allowed as a good administration of the effects." See note annexed.^* In this state of the authorities, it would be too much for me to or- der the executor to transfer and pay without having security given him in case of judgment being recovered against him at law, for any future breach of the covenant. No decree that I can make will bind the cor- poration of Canterbury, or protect the executor against their demand, 19 The note referred to is omitted. 616 PROBATE AND ADMINISTRATION, (Part 3 if the bond should hereafter be forfeited. All that I can do, is to order the funds to be made over on the plaintiff giving a sufficient indem- nity ; and it must be referred to the master to settle the terms of such security. In re KING. MELLOR V. SMITH AUSTRALIAN LAND MORTGAGE & AGENCY CO. (Supreme Court of Judicature, Chancery Division. [1907] 1 Ch. 72.) Neville, J.^** In this case the executors seek the direction of the court to distribute the estate among the residuary legatees notwith- standing the claim of a limited company in respect of unpaid shares, no calls having been made. It appears to be the practice to direct such distribution notwithstanding the existence of contingent claims, and, as the law stands, I think it is clear that the order of the court in such a case exonerates the executors from ultimate liability to the creditor. The practice appears to have grown up gradually and in a manner which is not to my mind altogether satisfactory. One cannot help seeing that the rights of absent parties of whose claim the court has notice may be prejudicially affected by the order. Nor are the au- thorities themselves in a very satisfactory state, but I think the out- come is reasonably clear. The first case I have been referred to is Fletcher v. Stevenson, 3 Hare, 360, before Wigram, V. C. In that case the Vice Chancellor directed that the whole of the residuary estate of the testator and the income should be retained for the purpose of providing a fund to sat- isfy, if necessary, future claims for rent. The Vice Chancellor says this (3 Hare, 370): "The widow's claim is opposed by two parties: First, by the executor; and, secondly, by the legatees in remainder. So far as the executor is personally concerned, he would, I apprehend, be safe in acting under the direction of the court; but in considering what degree of protection is due to the absent covenantee, I am bound to consider whether the court, taking the fund out of the hands of the executor, can do less than it would expect the executor to do if the fund remained in his hands." That is the ground on which the Vice Chancellor refused to part with the fund, and I must say that what the Vice Chancellor says seems to me of very great force. The next case cited in which the matter came before the court is Dean v. Allen, 20 Beav. 1. The side note .is: "Where an estate is administered and the residue is paid over under an order of the court, the executor will be protected, and a creditor will not afterwards be allowed to sue him at law. The executors of a lessee held entitled to 20 The statement of facts is omitted, and the opinion on the merits only is given. Ch. 3) THE PAYMENT OF DEBTS OF THE BSTATD. 617 no further indemnity against the covenants than the personal indemnity of the residuary legatees." That case is a clear authority upon the point that the direction of the court exonerates the executors from lia- bility to the creditor, but it is not very satisfactory because it provides for indemnity to the trustees, and does not point out or apparently recognize any inconsistency between the doctrine that the executors are entirely exonerated from liability and the provision of indemnity for them. The point again came before Sir John Romilly in Waller v. Barrett, 24 Beav. 413, and there the Master of the Rolls gives reasons for what he states to be the practice which are at all events intelligible. He reiterates the doctrine of exoneration. [His Lordship read the headnote to that case, and continued:] The Master of the Rolls says (34 Beav. 418): "I am at a loss to conceive on what principle a debt which may arise hereafter, but which is not now existing, is to be treated on a footing different to an existing debt. The creditor, al- though advertised for, may be abroad at the time, he may be ignorant of the whole proceedings, and yet, if he do not come in and claim, his only remedy in this court is against the legatees. In the case of March v. Russell (1837) 3 My. & Cr. 31, 41, Lord Cottenham made this ob- servation : 'Formerly, when legacies were paid, it seems to have been the practice to oblige the legatee to give security to refund, in case any other debts were discovered. That practice has been discontin- ued, but the legatee's liability to refund remains. The creditor has not the same security for the refunding as when the legatee was obliged to give security for that purpose, but he has the personal liability of the legatee.' I hold that this, in fact, is the principle which governs these cases, that it is for the purpose of giving a greater degree of security to the executor (in case a creditor should arise thereafter), that the court requires what is called 'an indemnity to the executor' to be given ; but if he has stated the facts to the court, and has acted under its direction, I apprehend that his indemnity is complete and perfect, so far as he is concerned." That is an intelligible account of the origin of the practice. I am surprised that Lord Romilly should have professed himself to be at a loss to conceive on what principle a contingent debt can be differen- tiated from an existing debt; but he does class the two together and declare that the order of the court exonerates the executor on distribu- tion of the assets. Further, one cannot help feeling that the reason given for the provision of the indemnity is unsatisfactory, because it is curious that an indemnity of this kind should be held to give a greater degree of security to the executor than the order of the court, which exonerates him altogether. However, there it is, and that is something upon which one can proceed, whether the grounds upon which it is founded, as stated by the learned judge, commend them- selves to one's ideas of the general practice of the court or not. 618 PROBATE AND ADMINISTRATION. (Part 3 The next two cases to which I was referred are both before Kin- dersley, V. C. In the first, Smith v. Smith, 1 D.r. & Sm. 384, the doctrine of exoneration was referred to, and it was held the executors were not in that case entitled to an indemnity, and the Vice Chancel- lor says (1 Dr. & Sm. 387) : "Supposing there has been no dealing with the leaseholds by the executors, would they have been now en- titled to any indemnity? In following the previous decisions, I have held that executors have such right ; but I concur with the Master of the Rolls in thinking that where an executor fairly represents every- thhig to the court the decree, directing him to deal with and distribute the property, must operate as a complete indemnity to him; and that therefore an executor cannot need any other indemnity. It has, how- ever, been suggested, that there ought to be a fund set apart by way of indemnity, not for the benefit of the executor, but for the benefit of the lessor, in case of there being at any future time a breach of covenant. Now if the lessor is entitled to any such equity as this, it would seem to follow that he might come to this court to assert such equity, and to ask the court to set apart a sum of money out of the testator's assets, to provide for the event of a future breach of covenant; for which he might be entitled to recover damages. But it has been held that a lessor cannot be heard in this court to maintain any such right. In truth the whole doctrine on the subject is in a very unsatisfactory state; and does not seem to be founded on sound principles." The case came again before the same Vice Chancellor in Dodson V. Sammell, 1 Dr. & Sm. 575. In that case a fund which had been set apart to indemnify executors was ordered to be paid out to the residuary legatee, such indemnity since the passing of Lord St. Leon- ards' Act (22 & 23 Vict. c. 35) being no longer necessary as a pro- tection to the executor The Vice Chancellor said (1 Dr. & Sm. 578) : "With respect to the other ground, that it is required for the benefit of the lessor, it is true that in Fletcher v. Stevenson, 3 Hare, 360, Wigram, V. C, thought that, although the decree of the court would be a sufficient indemnity to the executor, it was right to set apart a sufficient part of the assets for the protection of the covenan- tee ; meaning, of course, that the covenantee had that equity. Now, if the covenantee had such an equity, it would necessarily follow that he could file a bill to enforce it. But in King v. Malcott, 9 Hare, 692, Turner, V. C, decided that there was no such equity." With great respect. I venture to think that the inference which the learned Vice Chancellor draws in that case is not a necessary inference, and that the reason given by Wigram, V. C, for retaining a security for the contingent creditor was an intelligible reason which was not open to the observation made by Kindersley, V. C, in that case. However, from thnt time on it seems to have been the practice not to retain any part of the assets. Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 619 Then after a considerable number of years— I have not been re- ferred to any case decided between 1861 and 190-i— the case came be- fore the late Byrne, J., in In re Nixon (1904) 1 Ch. 638. The head- note in that case is : "On making an order for the distribution of the estate of a testator amongst his residuary legatees, the court will not set aside any part of his assets to indemnify his executors against possible liabilities which may arise in respect of leases formerly held by him, unless there is privity of estate between the executors and the lessors." That I understand to apply to all cases where there is not a personal liability on the part of the executors to pay out of their own moneys the claim of the creditor. The learned judge went through the cases and came to the conclusion stated m the headnote, and I think that, having regard to the authorities, it is necessary for me to proceed on the same footing. ■ It is pointed out in one of the cases that the exoneration must, or at all events may, only operate in the case of an administration action. There may be a distinction in the protection afforded by a direction of the court taken under Order LV, R. 3, without administration. It is obvious that the court cannot direct distribution of the estate^ so long as it is not satisfied that there are no longer any immediate claims outstanding. I think, therefore, there should be an inquiry as to debts. NORMAN V. BALDRY. (High Court of Chancery, 1834. 6 Sim. 621.) On the marriage of William Baldry with Ann Freston, he, together with Simon Baldry, executed a joint and several bond, dated the 7th of October, 1802, to W. Lewis, conditioned for the payment, by the heirs, executors or administrators of William Baldry, within three months after his decease, of £490 to Ann Freston, in case she should survive him ; but, in case she should die in his lifetime, then for the payment by him, of £200 within six months after the death of Ann Freston, to the persons therein named. • Simon Baldry died in March, 1820. Ann Baldry died in April, 1831, leaving her husband her surviving. William Baldry having become insolvent^ the persons entitled to the £200 under the bond, filed, in 1832, a creditor's bill against the executors of Simon Baldry. The executors, in their answer, said that they had applied the whole of Simon Baldry's personal estate in payment of his debts and legacies, and that they never heard of the bond until October, 1831. ^ The Vice Chancellor [Sir Lancelot Shadwell] said that he had always understood the law to be that an executor who had paid simple contract creditors of his testator, a bond being in existence but not then payable, ought to be allowed those payments ; but that an ex- 620 PROBATE AND ADMINISTRATION. (Part 3 ecutor was liable, if he paid the legatees, notwithstanding he had no notice of the bond (see Hawkins v. Day, Amb. 160) ; and that he was not disposed to agree to what was attributed to Lord Kenyon in the case cited.^^ SECTION 5.— EXECUTORS DE SON TORT EMERY V. BERRY. (Superior Court of Judicature of New Hampshire. 1854. 28 N. H. 473, 61 Am. Dec. 622.) Eastman, J.* In examining the questions presented by this case, we shall pursue the order taken in the argument, and consider, first, the ruling of the court by which a verdict was taken for the defend- ant upon the issue to the jury. It may be stated, in general terms, that at common law an executor de son tort is one, who, without any authority from the deceased or the court of probate, does such acts as belong to the office of an ex- ecutor or administrator ; and it is said that all acts of acquisition, trans- ferring or possessing of the estate of the deceased, will make an ex- ecutor de son tort, because these are the only indicia by which cred- itors know against whom to bring their actions. 2 Bac. Abr. 387, and authorities there cited. Our statute provides that "if any person shall unlawfully intermed- dle with, embezzle, alienate, waste or destroy any of the personal es- tate of a deceased person, he shall stand chargeable and be liable to the actions of the creditors and others aggrieved, as executor in his own wrong, to double the value of the estate so intermeddled with, em- bezzled, alienated, wasted or destroyed." Rev. St. c. 158, § 15. 21 That case was The GoTemor and Company of the Chelsea Waterworks V. Cowper. 1 Espin. N. P. C. 275 (1795). In Daniel v. Baldwin, 148 Ala. 292. 40 South. 421 (1906). an administrator, without getting an order of court directing him to do so, distributed the estate. An infant had a claim of which the administrator knew nothing, and by statute had till 12 months after attainiug majority to present It. The in- fant presented the claim within that time, and the adminisrator and his sure- ties were held liable. In Hanna v. Palmer, 6 Colo. 1.50. 45 Am. Rep. 524 (1882). where the ques- tion was whether a widow, on renouncing the will, took under the Colorado statute one-half the estate of her husband free from his debts, the court said: "If she elects to take under the will, it will not be pretended that her legacy is exempt from the debts of the testator: and uix)n renouncing the will she takes her legal moiety, not as dower, nor in lieu of dower, but in lieu of the provisions of the will, and impliedlv subject to the same liabil- ities respecting the debts of the deceased." 6 Colo. 161. 45 Am. Rep. 524. So far as an administrator has paid a debt of the estate with assets which he is compelled to refund to the widow, he will be subrogated to the rights of the creditor. Flowers v. Reece (Ark.) 123 S. W. 773 (1909). • The statement of facts is omitted. Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 621 What precise acts shall be deemed an intermeddling, so as to charge a person as executor in his own wrong, has never, so far as we are advised, been directly passed upon by the courts of this state. The question has incidentally arisen in two or three cases, but no definite decision has been made. Pickering et al. v. Coleman, 12 N. H. 148 ; Leach v. Pillsbur}'-, 15 N. H. 137. In the latter of these cases, it was said that "it seems that the single act of receiving and paying out a sum of money belonging to the estate of an intestate, will make a person an executor de son tort, so far that he may be charged as such." If a stranger gets possession of the goods of the deceased before probate of the will, he may be charged as executor in his own wrong. Read's Case, .5 Coke, 33, b; Salk. 313, pi. 19; Dyer, 166, b; Roll. Abr. 918. And Mr. Justice Buller, in Edwards v. Harben, 2 Term, 597, says: "In short, every intermeddling after the death of the party makes the person so intermeddling an executor de son tort." And the same learned justice, in Padget v. Priest, 2 Term, 97, says: "It is clear, from all the cases, that the slightest circumstances of inter- meddling will make an executor de son tort." The case of Padget v. Priest, and the authority of Dyer, 166, b, are cited and approved by Williams, in his note 2 to Osborne v. Rogers, 1 Saund. 265. A careful examination of the authorities will, we think, show that, as between a creditor of the deceased and a person who may inter- meddle with his goods, very slight acts indeed will make him liable as executor as de son tort. Acts of necessity or humanity, such as lock- ing up his goods, burying the corpse of the deceased, or feeding his cattle, and similar acts of charity, by which a person does not assume to have any control over the property more than others, will not con- stitute a person executor in his own wrong. 2 Bacon's Abr. 288; 2 Black. Com. 507; Dyer, 166.^2 gyt ^here one possesses himself of the goods of the deceased, for the purpose of taking care of them, the object of the possession must be made to appear, before he can be dis- charged from the responsibility arising from his possession. Hubble v. Fogartie, 3 Rich. Law (S. C.) 413, 45 Am. Dec. 775. The best rule that occurs to us, that can be laid down upon the sub- ject, is this: That all acts which assume any particular control over the property, without legal right shown, will make a person executor in his own wrong, as against creditors. Any act which evinces a legal 22 "It was formerly held, with great strictness, that no one could inter- fere in the least with the estate of a deceased person. This was carried to such an extent that a wife has been held liable as executrix de son tort for milking the cow of her deceased husband. Gerret v. Carpenter, 2 Dyer, 1G6. note. But it is now determined that there are many acts which do not make one liable, such as locking up the goods of the deceased for preserva- tion, directing the funeral and paying the expenses thereof, feeding his cat- tle, etc. ; for these are necessary acts of kindness and of charity." Devens, J., in Perkins v. Ladd, 114 Mass. 420, 422, 19 Am. Rep. 374 (1874)'. 622 PROBATE AND ADMINISTRATION. (Part 3 control, by possession, direction or otherwise, will, unexplained, make him liable. And this position the authorities seem fully to sustain. 2 Bac. Abr. 387; 5 Coke, 33, b; Edwards v. Harben, 2 Term, 597; Padget V. Priest, 2 Term, 97; Campbell v. Tousey, 7 Cow. (N. Y.) 64; White v. Mann, 26 Me. 361; Wilson v. Hudson, 4 Har. (Del.) 168; Hubble v. Fogartie, 3 Rich. Law (S. C.) 413, 45 Am. Dec. 775; 1 Saund. 265, note. jNIountford v. Gibson, 4 East, 441, and the other cases cited by the defendant's counsel, will not, we think, when carefully examined, be found to conflict with these views. The evidence, in this case, was competent to show the defendant executor in his own wrong, and liable under our statute. It tended to show that the defendant had in his possession $400, money which he had received from the estate of his son, Joseph Berry, who was an alleged debtor of the plaintiff, and who died in California. He re- ceived it through a draft on Boston, sent by a Mr. Matthews, from San Francisco, The object for which the money was sent is not stated. It was sent to the defendant, subject to no order of the de- ceased, or of any administrator or executor of his in California. Matthews would appear to have been acting as the friend of the de- ceased, and, without any administration upon the estate, to have taken upon himself to, send the avails of the property of the deceased to his father, in this state. The case finds Berry to be dead. It finds, in effect, that the $400 belongs to his estate, and that the same is money, in the hands of the defendant, in this state. It does not appear that any administrator, ex- ecutor, creditor or heir in California has any right to the property, or to its control. Nor does it appear that it was sent to this state by au- thority of any will or the decree of any probate court. Neither is any thing disclosed in the case by which it appears that any one in this state or elsewhere has any right to any legal control over it. It is, then, simply personal property of the deceased, in this state, in the hands of the defendant, subject to the rights or interference of no one, except as the statute shall point out. Being within our jurisdic- tion, under such circumstances, it may properly be administered upon in this state, for the benefit of the heirs and creditors residing there. There has been no administration upon the estate of the deceased in this state, and the defendant is the only person shown to have inter- meddled with the property here. He is the only one who has had it in his possession, and exercised control over it, and we infer from the facts stated, has declined to surrender the property or take out let- ters of administration upon the estate. If the defendant desires to avoid the penalty prescribed by the stat- ute, it seems that it may be done by his now taking out letters of ad- ministration. Shillaber v. Wyman, 15 Mass. 322. We are the better satisfied with the conclusion to which we have arrived, as to the liability of this defendant, from comparing the sec- Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 023 tioii of the statute already cited with the twelfth section of the same chapter. The latter provides that "no person shall intermeddle with the estate of any person deceased, or act as the executor or adminis- trator thereof, or be considered as having that trust, until he shall have given bond to the judge, with sufficient sureties, in such reason- able sum as he shall approve, upon condition," etc. While this sec- tion provides that no person shall intermeddle with the estate of any person deceased without giving bond, the fifteenth provides that if any person shall unlawfully intermeddle with the personal estate of any deceased person, he shall stand chargeable as executor in his own wrong. The two sections taken together would seem to show that when the legislature speak of an unlawful intermeddling, they mean all such as takes place without giving bond as administrator or ex- ecutor. Verdict set aside and new trial granted.^' ROHN v. ROHN. (Supreme Court of Illinois, 1903. 204 111. 184, 68 N. E. 360, 98 Am. St. Rep. 185.) Cartwright, J. Appellee, Ida Rohn, as administratrix of the estate of her deceased husband, William Rohn, Jr., recovered a judgment in the superior court of Cook county for $1,762.50 against appellant, Wil- liam Rohn, father of said William Rohn, Jr., as executor de son tort of said estate, in an action on the case for negligence in failing to col- lect a note of $1,500 against George Wildner, which appellant had in his hands. The Branch Appellate Court for the First District af- firmed the judgment. The material facts appearing on the trial are as follows: William Rohn, Jr., was a partner of George Wildner in the manufacture of fur- niture in Chicago, and having long been ill with a fatal disease, he attempted to arrange his business affairs and property in view of his approaching death. He had no real estate and no debts, and was averse to having his estate probated. To carry out his arrangement he entered into a contract with Wildner for the sale of his interest in the partnership to Wildner for $8,500, on which $6,000 was to be paid in cash or securities and Wildner was to give his notes for the remainder, one for $1,000 and the other for $1,500. Wildner had 2 3 In Meyrick v. Anderson, 14 Q. B. 719 (1850), it was held that the execu- tor de son tort of a rightful executor is liable in the same manner as a rightful executor for the^ debt of the original testator. In Georgia, where an executor of an executor is ipso facto executor of the original estate (Jepson V. Martin. 116 Ga. 772, 43 S. E. 75 [1902]), the same doctrine holds true. See Dawson v. Callaway, 18 Ga. 573 (1S55), where an executor de son tort of an executor de son tort was held as the executor de son tort of the original testator. On executors de son tort, see 98 Am. St. Rep. 190, note; 85 Am. Dec. 423, note. 624 PROBATE AND ADMINISTRATION. (Part 3 $1,600 in mortgages and was going to raise $400 to make up $2,000. He arranged to borrow $2,000 from his mother and $2,000 from Ru- dolph Rohn, brother of the defendant, for the purpose of paying the $6,000. WilHam Rohn, Jr., executed a bill of sale of his share of the partnership, dated September 28, 1893, and gave it to his wife, Ida Rohn, to be delivered upon compliance with the terms of sale. When the contemplated sale should be carried out his estate would amount to $11,000, which was all in personal property, and he said that he wanted to secure to his wife $5,000 of that sum and to each of his children $3,000 ; that he wanted to leave all his effects in the care of his father, the defendant, in whom he had perfect confidence. He died October 10, 1893, and on October 17, 1893, the defendant, in pursuance of the arrangement, took the bill of sale and delivered it to Wildner, receiving from him $6,000 and two judgment notes payable to Ida Rohn, under the name of Mrs. William Rohn, Jr., one for $1,000, due in two years, and the other for $1,500, due in three years. The $6,000 was raised by Wildner as above stated. The defendant gave to Ida Rohn, the widow, a list showing the two notes and other securities, aggregating $11,000, which was the entire estate left in his custody, as requested by the deceased. She then went with a friend and the de- fendant to an attorney's office, where she said that her husband was dead and it would be better to get things into proper shape in accord- ance with his will; that he wanted her to have $5,000 and each of the children to have $3,000, and she wanted a document drawn up to have the transaction shown in case anything should happen, and to show that defendant held the property. The attorney drew up, according to her directions, a declaration of trust, by which defendant acknowledged that he had received from his son, William Rohn, Jr., $11,000 in notes, partly secured and partly unsecured, which he held in trust for Ida Rohn and her two minor children, in the proportion of $5,000 for the former and $3,000 for each of the latter. He agreed to collect in- terest on all the securities and pay the same to Ida Rohn during the minority of the children ; to turn over her share of $5,000 on demand, and $3,000 to each of the children when they became of age. This declaration was signed by the defendant. He attended to the collec- tion of the principal and interest on the securities as they matured, with- out any compensation, under the agreement. The $1,000 note of Wild- ner was paid at maturity. Two annual payments of interest were made on the note of $1,500, and that note matured October 17, 1896, and was not paid when due. Defendant's brother, Rudolph Rohn, had furnished said sum of $2,000 when Wildner purchased the interest in the partnership, and the indebtedness had been increased to $3,000, for wliich Rudolph Rohn had taken a chattel mortgage on the property in the spring of 1896, and Wildner also owed Rudolph Rohn nearly two years' rent. In the latter part of October, 1896, the defendant and Rudolph Rohn went to Wildner, and defendant requested pay- ment of the note to the estate. They both wanted Wildner to pay them. Ch. 3) THE PAYMENT OP DEBTS OF THE ESTATE. 625 and he asked for time, showing them his stock and telling them he was looking for a partner and was able to pay everybody. He asked them to wait until after the election, in November, when he would get a partner or make a stock company and would see that they were pro- tected. There was no agreement for any extension, but neither the defendant nor Rudolph Rohn took any steps to enforce collection. In November Wildner's mother, who had loaned him $2,000 to make the purchase, entered judgment on her note. Rudolph Rohn, learning that fact, paid the judgment to her and foreclosed his chattel mort- gage, leaving Wildner insolvent, and the $1,500 note could not be col- lected. Plaintiff was appointed administratrix of her husband's estate on January 26, 1897, and on August 13, 1897, she endorsed upon the declaration of trust a receipt for $9,500 in cash and all interest there- on to that date. The defendant took charge of the property in entire good faith, with- out compensation, solely for the purpose of carrying out the wishes of his son. The only question of fact in controversy in the case was whether defendant was guilty of negligence in not entering judgment on the note and making an effort to enforce collection by that means. The arguments of counsel on both sides are directed almost exclusively to the facts, but the judgment of the Appellate Court must be treated by us as finally settling the fact that the defendant was guilty of neg- ligence in not exercising such diligence for the collection of the note as a man of ordinary prudence would have exercised in his own affairs, and also that the loss and damage to the estate was equal to the dam- ages assessed. The assignments of error which we may consider relate to the giving and refusing of instructions. There were only two instructions given at the request of plaintiff, and objection is made to them on the ground that they erroneously assumed that defendant, when the note became due, occupied the position of executor de son tort of his son's estate, while the evidence showed that he acted simply as a trustee for Ida Rohn and her two children, individually. What facts will constitute an executor de son tort of an estate is a question of law for the court, but the determination of the facts, if they are in controversy, is for the jury. In this case there was no controversy whatever as to the facts cre- ating the relation of defendant to the estate. The defendant received all the property of the estate, consisting of $11,000 in notes and se- curities, of which the widow was, under the statute, entitled to one- third and the children to the balance, in equal shares. The arrange- ment by which the contract with Wildner had been carried out was for the benefit of the estate and in the interest of the minor children, and has not been questioned by anybody. The defendant having taken the estate into his possession and assumed its management, was bound to hold and account for it in the proportions fixed by the statute. No Cost. Wills— 40 626 PROBATE AND ADMINISTRATION. (Part 3 doubt the widow and the defendant honestly beHeved that by reason of the expressed wish of the deceased his estate could be divided as they attempted to divide it, and that the property could be placed in the hands of the defendant in a trust relation, as requested by the deceased, but they were both bound to know the law, and that the deceased could not change the distribution of his estate under the statute without a will, as he attempted to do. It is true that the declaration of trust was made at the request of Ida Rohn, and that the services of defendant were performed in good faith, with no other motive than to carry out the wishes of his deceased son, but the arrangement was void in law. Ida Rohn was entitled, as widow, to one-third of the estate and the minor children each to one-third, and neither she nor defendant could increase her interest to $5,000. The parties were wrong in their sup- position that the arrangement was binding upon the minor heirs, and the undisputed facts placed the defendant in the position of an execu- tor de son tort of the estate. He was bound to exercise, so far as the estate was concerned, the same diligence in the collection of the note as if he had been a regularly appointed administrator, and there was no error in assuming that he occupied the same position and assumed the same responsibilities and liabilities as an administrator. The court refused instructions, asked by defendant, to the effect that acts of kindness, beneficence and charity do not amount to a usurpa- tion of the office of administrator and do not create a liability against any person. The acts done merely from kindness and charity, and for no other purpose, which do not create a liability, as we understand it, are limited to such acts as directing a funeral, payment of funeral ex- penses and the preservation of the estate from loss or waste, and the like, while in this case the entire estate was taken by defendant for management and distribution, including everything, in substance, that an administrator would be bound to do, but different from the provi- sions of the statute. The court did not err in refusing the instruc- tions referred to. It is further urged that the court erred in refusing to give instruc- tions, asked by the defendant, advising the jury that if the arrange- ment was concurred in by the plaintiff, and the defendant held the note, with the other property, for the use and benefit of the widow and heirs of William Rohn, Jr., with the knowledge and acquiescence of the plaintiff, she would be estopped from charging him as executor de son tort, and that he would have the right to apply the note to her dis- tributive share of the estate, which exceeded the amount of the note. We think the court was right in refusing these instructions. In law the plaintiff represented the estate, suing as administratrix, and the only judgment at law would be for or against the defendant on the al- leged liability to the estate. Counsel have pointed out no method by which a set-off or counterclaim could be interposed in a suit at law or any estoppel be made eft'ective against the plaintiff, representing the estate. A court of equity might look beyond the parties and determine Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 627 the case upon their true relations and adjust the equities of all the par- ties. The minor children could not be required to bear any part of the loss, and in this suit the court could not apportion it. A court of equity may assume jurisdiction of the settlement of an estate, and in this case there was nothing to adjust except the interest of the dis- tributees. If facts existed requiring that, as between the defendant and the widow, the loss ought to be taken from her distributive share of the estate, it cannot be done in this suit, and such relief must be sought in a court of equity. Whether she, as an individual entitled to a distributive share of the estate, was in any manner responsible for his failure to collect the note is not a question in this case, and there was no error in refusing the instructions asked by defendant. The judgment of the Appellate Court is affirmed. Judgment af- firmed.^* ROZELL V. HARMON. (Supreme Court of Missouri, 1891. 103 Mo. 339, 15 S. W..432, 12 L. R. A. 1S7.) MacfarIvANE, J. This suit was commenced in the circuit court of Holt county. Plaintifif was a creditor of one B. W. Ross, deceased. The suit was for the purpose of recovering the amount of the debt from defendant on the ground that he had wrongfully appropriated and converted the assets belonging to Ross' estate to his own use. Plaintiff recovered judgment in the circuit court, and defendant ap- pealed to the Kansas City Court of Appeals, where the judgment was reversed. The case was certified to this court by the Court of Ap- peals on the ground that the decision rendered therein was in conflict with the decision of this court in the cases of Foster v. Nowlin, 4 Mo. 18, and Magner v. Ryan, 19 Mo. 196. The question presented by the record in this case is sufficiently stated by Judge Philips (29 Mo. App. 578) to be "whether there can be, under the probate system in this state, an executor de son tort, in so far as to authorize a single cred- itor of the intestate to maintain an action of trover against him, as here sought, and thereby appropriate the whole assets to the payment of his debt." The system provided by the laws of our state for the settlement of the estates of deceased persons was evidently intended to be ex- clusive of all others. The Constitution provides for the establishment of a probate court in each county, which shall have jurisdiction in all matters pertaining to probate business. The laws of the state govern- ing the procedure in the management and settlement of estates are ample and sufficient to meet any emergency that may possibly arise during administration. They provide for the appointment of ex- 24 Compare Rouertell v. Strode, 126 Mo. App. 348, 103 S. W. 510 (1907): Tuite V. Tuite, TB^N. J. Eq. 740, 66 Atl. 1090 (1907); Grace v. Seibert, 23o m. 190, 85 N. E. 308, 22 L. R. A. (N. S.) 301 (1908). ■628 PROBATE AND ADMINISTRATION. (Part 3 ecutors and administrators, for the preservation of the property, and the collection of the debts of the estate. They also provide summary and efficient proceedings for the discovery of assets, and for their re- covery from the possession of one who intermeddles with them. Un- der them any creditor can have an administrator appointed. Each county is provided with a public administrator, already qualified, whose duty requires him summarily to take charge of all estates in which the property is left in a situation exposed to loss or damage; and the court is given power to require him to take charge of any other estates in case of necessity. Ample provision is made for the allowance and classification of debts, converting the assets into money, and paying the debts of all creditors pro rata according to classifica- tion. Executors and administrators alone, under these laws, can re- cover the assets or damages for its conversion. All these provisions of the law are wholly inconsistent with the idea of executors de son tort as at common law. The administration laws of the state do not recognize the right to wrongfully administer, nor the right of one creditor to secure payment of his debt to the exclusion of others. It is insisted by plaintiff that this state has adopted the common law, and that under the rules of the common law his action is authorized, and that the rules of the common law on this subject have not been abrogated by the statutes. It is contended that under proper rules of construction a statute in derogation of the common law must be strictly construed, and that none of its rules can be changed, except by express terms of the statute, or by necessary implication therefrom. That rule of construction is not of universal application. It depends much on the character of the law to be affected. In case of statutes penal in their character, or in derogation of common right, a strict construction is required; but in regard to statutes merely remedial in their character a fair, if not liberal, construction should be given. Oster V, Rabeneau, 46 Mo, 595 ; Putnam v, Ross, 46 Mo. 337 ; Cham- berlain V, Transfer Co., 44 N. Y. 305, 4 Am. Rep, 681; Buchanan v. Smith, 43 Miss, 90, The statute of this state, adopting the common law, itself limits or modifies the rule of construction insisted upon. Section 3117, St, 1879, provides that the common law, which is not repugnant to or in- consistent with the Constitution of this state or the statute laws in force for the time being, shall be the rule of action and decision in this state. The examination we have given shows conclusively that the statute laws of this state on the subject of administration, taken together as forming one entire system, are wholly repugnant to and inconsistent with the common law in respect to administrators de son tort. We must therefore conclude that the intention of the Legis- 'ature was to supersede the common law on that subject altogether. The early cases of this court referred to by the Court of Appeals do seem to have recognized and acted under the common-law doc- trine invoked by plaintiff in this case, but since that early day the Ch. 3) THE PAYMENT OF DEBTS OP THE BSTATB. 629 administration laws of the state have been greatly enlarged, the juris- diction of the probate court extended, and the powers and duties of administrators and executors increased until there is no longer a place in the system for the inequitable, expensive, and tedious proceedings required by the rules of the common law in bringing intermeddlers to settlement. The opinion of Philips, P. J., in this case when before the court of appeals, and which is reported in 29 Mo. App. 570, with the authorities cited by him, is convincing and conclusive, and is adopted as the opinion of this court. The judgment of the Court of Appeals is affirmed, and that of the circuit court of Holt county reversed. All the judges of this division concur. SLATE V. HENKLE. (Supreme Court of Oregon, 1904. 45 Or. 430, 78 Pac. 325.) J. E. Henkle, as administrator of the estate of Francis Slate, de- ceased, sued Porter Slate, who had been appointed administrator under a void order, for the conversion of property of the estate. The de- fendant filed a complaint in the nature of a cross-bill in equity, al- leging that in good faith, relying on his appointment as administrator, he had sold certain property of the estate, paid certain expenses of administration, etc. A demurrer to the cross-bill was overruled, and a decree entered requiring Henkle as administrator to pay to Slate the balance of the expenses above the proceeds of the estate property sold by Slate. Henkle appealed. Moore, C. J.^° * * * ^^y person who, without authority, intermeddled with the estate of a decedent, by doing such acts as prop- erly belonged to the office of an executor or administrator, was orig- inally denominated an executor de son tort, who would be sued by the legal representative of the deceased, by a creditor of the estate, by a legatee, and, if all the debts were paid, by a distributee, and was liable to the extent of the assets which he had received. 11 Am. & Eng. Enc. Law (2d Ed.) 1342, 1351. Our statute has abolished the common-law rule which made one who officiously interfered with the property of a deceased person an executor de son tort by depriving creditors of the estate and others of the remedy which they anciently possessed of charging the intermeddler as an executor of his own wrong ; but the latter is now made responsible only to the legal repre- sentative of the decedent for the value of all property taken or re- moved and for all injury caused by his interference therewith. B. & C. Comp. § 385 ; Rutherford v. Thompson, 14 Or. 236, 12 Pac. 382. In the case at bar, the intestate, at the time of her death, not being 2 6 The statement of facts is abbreviated, and part only of the opinion is given 630 PROBATE AND ADMINISTRATION. (Part 3 an inhabitant of Linn county, the county court thereof had no juris- diction of the subject-matter of her estate, and its letters of adminis- tration issued to Slate were therefore void. Slate's Estate, 40 Or. 349, 68 Pac. 399. The appointment being a nullity, Slate's posses- sion and sale of the personal property belonging to the estate, if it were not for the immunity afforded by our statute, amending the common-law rule, would have rendered him an executor of his own wrong. 1 Abbott, Probate Law, § 407 ; Bradley v. Commonwealth, 31 Pa. 522. He undoubtedly had reason to believe and did believe that his appointment was valid, and, this being so, every advantage that an executor de son tort can invoke should be appHed in his favor. The rule is universal that such an executor is subject to all the liabilities of an ordinary executor without being entitled to any of his privileges. 11 Am. & Eng. Enc. Law (2d Ed.) 1351 ; 1 Woerner, Am. Law of Administration (2d Ed.) § 193 ; 1 Williams, Ex'rs, *216. The statute 43 Eliz. c. 8, so far as material herein, enacted : "That all and every person and persons that hereafter shall obtain, receive, and have any goods or debts of any person dying intestate, or a re- lease or other discharge, or any debt or duty that belonged to the in- testate, * * * shall be charged and chargeable as executor of his own wrong ; and so far only as all such goods and debts coming to his hands, or whereof he is released or discharged by such adminis- trator, will satisfy, deducting nevertheless to and for himself allow- ance * * * of all other payments made by him, which lawful ex- ecutors or administrators may and ought to have and pay by the laws and statutes of this realm." 4 Bacon, Ab. (Bouv. Notes) 28. The enactment of this statute probably gave rise to the rule, adopted by courts, that just debts of a decedent which have been paid by an ex- ecutor de son tort according to their legal priority may be set off against the amount of damages for which his intermeddling has ren- dered him liable. 11 Am. & Eng. Enc. Law (2d Ed.) 1353; Cook v. Sanders, 15 Rich. Law (S. C.) 63, 94 Am. Dec. 139; Bennett v. Ives, 30 Conn. 329. * * * Williams, in his work on Executors (American Notes by Randolph & Talcott, vol. 1, p. 310), in discussing this subject, says: "With re- spect to the liability of an executor de son tort at the suit of the lawful representative of the deceased, there are several authorities to show that, if the rightful executor or administrator bring an action of trover or trespass, the executor de son tort may give in evidence, under the general issue, and in litigation of damages, payments made by him in the rightful course of administration, upon this ground: that the pay- ments which are thus, as it is termed, recouped in damages, were such as the lawful executor or administrator would have been bound to make ; and therefore it cannot be considered as any detriment to him that they were made by an executor de son tort." To the same effect, see 11 Am. & Eng. Enc. Law (2d Ed.) 1352. Mr. Chief Justice Lord, in Rutherford v. Thompson, 14 Or. 236, Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 631 12 Pac. 382, in discussing the effect of our statute amending the conimon-law rule, and of the right of an executor de son tort to be credited with payments which he may have made that are tantamount to a due administration of a decedent's estate, says : "The person who intermeddles with the goods of the deceased is now only responsible to answer in an action to the rightful executor or administrator. And whether we consider the intermeddler as an executor de son tort or as a wrongdoer, the liability to respond to the rightful executor or ad- ministrator is the same, and unaffected, and the law unchanged. The fiction of office may be gone, but the unauthorized act of inter- meddling remains, to be dealt with judicially, according to the prin- ciples of right and justice, as applied by the law in such cases. Now. from the fact that the intermeddler with the goods of a deceased is only liable to respond to the rightful executor or administrator for the value of the goods, etc., it by no means follows, if what he did was of benefit, and not injury, to the estate — as the payment of fu- neral expenses, or debts of the deceased, or charges such as the right- ful representative might have been compelled to pay — he would not be allowed to show the same in mitigation of damages in an action of trover, instituted by such executor or administrator. In thus com- pelling him to account with only the rightful representative the stat- ute does not purport or undertake to deprive him of any proper or legitimate defense. The title of executor de son tort may be repu- diated, but the justice of the law will remain, to distinguish between acts which are beneficial and those which are injurious to an estate." We think Slate had an adequate remedy, in the law action instituted by Henkle against him, to recoup against the claim for damages caused by his intermeddling all payments made by him that neces- sarily conduced to the benefit of his mother's estate. There are some items, however, in his claim, as disclosed by the cross-bill, that could never have been of any advantage thereto. Thus the sums paid to the surety company for responsibility assumed on Slate's undertaking, and also the appraisers' and justice's fees [for administering oaths to appraisers]. The sum paid on account of attorney's fees was no ad- vantage, unless the service rendered was in preserving the property of the estate; certainly not in the ordinary settlement thereof, or in defending in the former suit. The sum of $100 claimed by Slate [for services performed in caring for the decedent's property from May 6, 1900, to March 3, 1902] should not be allowed, unless his service, like that of his attorneys, was performed in preserving or caring for the property, resulting in a benefit thereto. He is not entitled to any sum whatever as administrator's fees, and if the county court ap- pointing him had allowed and he had secured the sum prescribed by law as compensation in such cases, as he was only a de facto repre- sentative of the decedent's estate the de jure administrator could have recovered such fees from him, for the rule is almost universal that g32 PROBATE AND ADMINISTRATION. (Part 3 an officer de facto is liable to an officer de jure for emoluments of office after ouster. Throop, Pub. Officers, §§ 256, 523, 663. * * * In the case at bar Slate was interested in the estate of his mother and therefore not a volunteer, and, as he could have interposed the defense indicated in the law action, an error was committed in over- ruling the demurrer. The decree will therefore be reversed, the demurrer sustained, and the cross-bill dismissed.^' SECTION 6.— REFUNDING B^ CREDITORS WOLF v. BEAIRD et al. (Supreme Court of Illinois, 1888. 123 III. 585, 15 N. E. 161, 5 Am. St. Rep. 565.) Magruder, J. Edward J. French died testate on March 3, 1880. This will was admitted to probate in the county court of Richland county, and letters testamentary were issued to the appellant, John Wolf, as the executor thereof, on March 8, 1880. The county court allowed two claims against French's estate, one on May 18, 1880, and another on August 17, 1880, in favor of John B. Gharst. During the first year of the administration Wolf had money enough on hand to pay in full all the claims filed against the estate before the end of that year. He paid Gharst 30 per cent, of his two claims on August 17, 1880, and he paid him the balance of such two claims on October 15, 1880. On the latter date Gharst's total claim against the estate was paid in full. At the time Wolf paid Gharst's claim in full, he and Gharst both believed that French's estate was solvent, and would not only be able to pay all the debts, but would have a surplus for the heirs. Both parties acted in good faith, the executor in paying, and the creditor in receiving, the full amount of the claim. If the claims hereafter mentioned, which were not known to exist at that time, had not been filed, the surplus would have amounted to $1,800. Two large claims were allowed against the estate, one on June 20, 1881, in favor of Robert Allyn, trustee, and another on June 21, 1881, in favor of Lucy French, which made the estate insolvent as to the payment of claims of the seventh class. By the allowance of these latter claims, the assets were so reduced that the estate was 2« In Bradley v. Com., 31 Pa. 522 (1858), It was held that letters of ad- ministration issued on a bond executed by only one surety, -when the law required two or more, were void, and that the woman acting under them "became administratrix of her own wrong." But see Steele v. Tutwiler, 68 Ma. 107 (1880). Ch. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 633 only able to pay 61.72 per cent, of the claims oi the seventh class tc which the Gharst claim and the Allyn and Lucy French claims all be- lono-ed It thus turned out that Gharst had been overpaid by the amSunt of the difference between 100 per cent, and 61.72 per cent. Gharst died testate on September 4, 1881, and the appellees are the ex- ecutors under his will. j ci i „ Wolf as executor of the estate of E. L French, deceased, filed a claim against Gharst's estate, in the county court of Richland county, for the excess of the amount so paid to Gharst over the pro rata share to which he was properly entitled. On June 20, 1882, this claim of Wolf against Gharst's estate was allowed by the county court and an appeal was taken to the circuit court, where the case was tried before the circuit judge, without a jury, by agreement. The circuit court ordered that the claim be allowed as a seventh class claim, to be paid in due course of administration, and directed that its order be certi- fied down to the county court for payment. The case was then taken by writ of error to the Appellate Court, which, at its February term, 1886 reversed the judgment of the circuit court, and remanded the cause A second trial was had before the circuit judge without a jury, at the November term, 1886, which resulted m a judgment m favor of appellant against appellees. This judgment has been brought before the Appellate Court a sec- ond time, and has been again reversed. It now comes before us by appeal from the Appellate Court, and upon certificate that the case involves a question of law of such importance, on account of collateral interests, that it should be passed upon by the Supreme Court. Both Wolf and Gharst knew, or were bound to know, that, under the law, Gharst could not lawfully receive his claim in full out of the assets of the French estate, unless those assets were sufficient to pay all claims of the same class with his own. There was a mutual mis- take of facts in respect to which both parties were equally bound to inquire. They both believed that the assets were sufficient to pay the claims in full, and acted upon such relief ; but both were mistaken in regard to the fact. "Money paid by one party to another, through a mutual mistake of facts, in respect to which both were equally bound to inquire, may be recovered back." Bank v. Bank, 1 Hill (N. Y.) 287 ; Wheadon v. Olds, 20 Wend. (N. Y.) 174. "The count, for mon- ey had and received, is also maintainable for the recovery of money paid under a mistake, on the part of the payer, of a material fact." 2 Chit. Cont. (11th Ed.) 928; 1 Chit. PI. 355; Bank v. Mitchell, 88 111. 52 ; Stempel v. Thomas, 89 111. 147. Wolf was mistaken in a material fact. If he had not been mistaken in the fact, which he supposed to exist, that the assets were suffi- cient to pay the claims in full ; in other words, if the assets had been sufficient to pay the claims in full, he would have been liable to pay Gharst the 38.28 per cent, so paid to him by mistake. The filing of 634 PROBATE AND ADMINISTRATION. (Part 3 the claim by Wolf against Gharst's estate was in the nature of an equitable action for money had and received, or money paid under a mistake of fact. If Wolf could have brought an a'ction of assumpsit against Gharst in the latter's lifetime, for the excess of the payment over the proper pro rata share, then a claim for such excess was a proper claim to be filed against Gharst's estate, so far as the nature of the demand is concerned. It was held in Rogers v. Weaver, 5 Ohio, 536, that an administrator, who, under the supposition that the estate was solvent, had paid a creditor beyond his distributive share, might, upon final settlement, re- cover back the difference in an action for money had and received. See, also. Walker v. Hill, 17 Mass. 380. When this case was tried a second time before the circuit judge, at the November term, 1886, it was proven, that appellant had filed his final report, as executor, on July 15, 1886, and had been discharged by the county court. The order of the county court, entered at date, found that the assets were only adequate to pay 61.72 per cent, of the claims of the seventh class ; that the estate was insolvent as to those claims ; that Wolf had paid 61.72 per cent, upon all the claims of the seventh class; and the final report was by such order confirmed and the es- tate declared to be settled. Hence it appeared affirmatively that ap- pellant had advanced out of his own pocket the 38.28 per cent, overpaid to Gharst. Otherwise he could not have settled all the seventh class claims at 61.72 per cent, of their amounts. It is claimed that appellant could only sue in his individual capac- ity, and not as executor, for the overpayment to Gharst, and that he could not bring suit until he had advanced money enough out of his own means to make up to the French estate the amount of such over- pa}TOent, the amount which was paid to Gharst by mistake, having been the money of the estate and not his own money. Upon these grounds it is urged that when the claim was first filed in the county court, in 1882, the cause of action was not ripe for suit. When the claim was presented to the county court, in June, 1882, Gharst's estate owed the amount which had been overpaid to him in his lifetime. Whether Gharst's estate then owed that amount to appellant, as executor, or to appellant, as an individual, or to the other creditors of the French estate, matters not, so far as the existence of the indebt- edness was concerned. The debt existed to somebody, and the same debt existed all the way through up to the last trial in November, 1886. It could make no practical difference to the Gharst estate who owned the claim against it. As Gharst had received more money than he ought to have had, his estate was liable to refund the amount. This liability remained the same from the beginning to the end, whatever variations there may have been in the ownership of the claim, or in the form of the evidence, by which it could be substantiated. In ad- judicating upon the claim, the county court was possessed of an equi- Cll. 3) THE PAYMENT OF DEBTS OF THE ESTATE. 635 table jurisdiction. Dixon v. Buell, 21 111. 203; Hurd v. Slaten, 43 111. 348. Equity disregards mere matters of form, and looks at the substance. It is said that when the claim was filed against Gharst's estate, the county court had not declared the French estate insolvent, and had not, by an order fixed the 'amount of the dividend or pro rata percentage belonging to the creditors. Nevertheless the amount of such percent- age was capable of ascertainment, in June, 1882. The proof showed at that time the assets of the French estate, the amount of Gharst's claim, and the amounts of all the other claims, including those filed in June, 1881. From these data it was easy to figure the amount of the percentage the creditors were entitled to and the amount of the over- payment to Gharst. The subsequent order made on July 15, 1886, was more certain and definite evidence, but after all it was only evi- dence of what already existed. When the appeal was taken to the cir- cuit court, the trial in the latter court, in November, 1886, was de novo, and it was proper to introduce then as evidence the order of July 15, 1886, though the same evidence had not yet come into existence in 1882. Thorp v. Goewey, 85 111. 611. It is said that this claim was improperly filed by Wolf, as executor of the estate of E. J. French, deceased. The money was paid to Gharst after the death of French. The law created an implied contract on the part of Gharst with Wolf to pay back the excess. An executor or administrator may sue, either in his representative or in his personal character, on contracts made with him after the death of the deceased. Dicey, Parties, 233. Where the indebtedness thus grows out of a con- tract with the executor, he may sue in his own name ; or if the word "executor" or "administrator" is used after his name, it will be re- garded as merely descriptive of the person, and as being immaterial. Eaycock v. Oleson, 60 111. 30. The legal title to the money paid to Gharst was in Wolf. Neubrecht v. Santmeyer, 50 111. 74; Walker V. Craig, 18 111. 116 ; Makepeace v. Moore, 5 Gilman, 474. The right of action was in Wolf. The statute does not require any written pleadings in the case if a claim be presented to the county court. Thorp v. Goewey, supra. If the right of action was in Wolf, as trustee for the French estate, upon the trial, in 1882, but was in Wolf, as an individual, in 1886, by reason of his advance to the French estate of the money overpaid to Gharst, this change could make no dif- ference to the Gharst estate. Wolf was still the legal claimant, wheth- er claiming for himself or in trust for another. He could not charge the French estate with any of the costs or expenses of prosecuting the claim against the Gharst estate, even though he sued as executor, because he was suing to recover back money improperly paid out by himself. Although the judgment entered by the court in November, 1886, was in favor of Wolf, as executor, he was entitled to the money in his 636 PROBATE AND ADMINISTRATION. (Part S individual capacity. The mere addition of the word "executor" to his name would make no difference; nor could the amount of the judg- ment be recovered from him by the French estate, as assets of that estate, because he could plead as an off-set the amount advanced by him to the French estate to make up the overpayment to Gharst. We think the judgment rendered by the circuit court was right. The judgment of the Appellate Court is therefore reversed.^^ 2T See Morris v. Porter, 87 Me. 510. 33 Atl. 15 (1895); Tarplee v. Cnpp, 25 Inrl. App. 56, 56 N. E. 270 (1900). See. also, Woodruff v. H. B. Claflin Co., 133 App. Div. 874, 118 N. Y. Supp. 48 (1909), where the payment was the re- sult of a compromise by the administratrix with the creditor, and the coart said: "Whatever mistake or negligence in the transaction may be imputed to the administratrix, the estate ought not to suffer. The transaction con- cerned, not these two alone, but all other persons interested in the estate beneficially, and the surety also. A private compact between the two could not legally affect the rest when made to their detriment. This overpaid creditor had no equitable right to retain the excess received above its pro rata share of assets." Compare Golding v. McCall, 5 Ga. App. 545, 63 S. E. 706 (1909). But see Carson v. McFarland. 2 Rawle (Pa.) 118. 19 Am. Dee. 627 (1828); Findlay v. Trigg's Adm'r, 83 Va. 539, 3 S. E. 142 (1887) ; Staples' Ex'r V. Staples, 85 Va. 76, 7 S. E. 199 (1888), where the right of the administrator to compel the creditors to refund is denied. In Flint v. Valpey, 130 Mass. 385 (1881), the right to recover from the creditor was held not to accrue until the decree of distribution was made, because until such decree it is not proven that the estate is insolvent, nor, if it is insolvent, how much the personal representative should recover. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 637 CHAPTER IV THE PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES SECTION 1.— THE TIME OF PAYMENT OF LEGACIES AND INTEREST, DIVIDENDS, AND UPKEEP CHARGES ON LEGACIES PEARSON V. PEARSON. (High Court of Chancery in Ireland, 1802. 1 Sch. & L. 10.) The bill was filed by the executor of Matthew Pearson, to have the trusts of his will carried into execution under the direction of the court. By this will several pecuniary legacies were bequeathed with direc- tions that they should be paid within a week after the death of the testator, or in failure thereof that they should bear interest from that time. There followed other legacies to Mrs. Vickers, and to Vickers her son, which were given generally without assigning any time for payment, and the residuum was bequeathed, one-half to be divided by the executor between the sons and daughters, grandsons and granddaughters of testator's cousins Roger and Henry Pearson, share and share alike, and the other moiety to his said executor for his own use, subject to make good the other demands created by the will. The testator died possessed of a considerable personal estate, con- sisting chiefly of bank stock and government debentures. One ques- tion which arose upon the will was, whether the legacies to Mrs. Vick- ers and her son bore interest, the personal estate being a productive fund. Mr. Burne and Mr. F. W. Greene, for these legatees, cited Maxwell V. Wettenhall, 2 P. Wms. 27 (4th point): "If a legacy be given out of a personal estate, consisting of mortgages carrying interest, or of stocks yielding profits half yearly, it seems in this case the legacy shall carry interest from the death of the testator." Lord Chancellor [Redesdai^e].^ As to the reason given for the rule, mentioned in Maxwell v. Wettenhall, that the legacy is payable out of a fund which is yielding profits, I take it that makes no difiference. t Part of the case relating to costs i.«; omitted. 638 PROBATE AND ADMINISTRATION. (Part 3 In case of a legacy charged upon lands, the land yields profit: but that is not the reason that in such case the legacy Isears interest im- mediately. The rule with respect to legacies out of personal estate is taken from the practice in the ecclesiastical courts where a year is given to the executor to collect the effects, and he cannot be called upon to pay before that time, because he cannot know until then what fund there is to pay; in conformity to this, courts of equity have pro- ceeded, in the case of legacies out of personal estates. But in the case of legacies charged upon lands only, where no day of payment is fixed, interest must be chargeable from the death of the testator or not at all. Nothing can be more settled than that a man's saying, "I direct all my stock to be applied to the payment of legacies," will not make tliose ■legacies bear interest one moment sooner than they otherwise would. Whether the fund bears interest or not is totally immaterial in the case of pecuniary legacies. I remember a case of Greening v. Barker, where the fund did not come to be disposable for the payment of legacies till near forty years after the death of the testator, and yet the legacies were held to bear interest from the year after testator's death, and the court there was of opinion, that it was a general settled and fixed rule, that pecuniary legacies bear interest from the expiration of twelve months, if there should at any time be a fund for the payment of them, and that in case the fund was productive within the twelve months all the intermediate profits belonged to the residuary legatee. The execu- tor may' pay the legacy within the twelve months, but is not com- pelled to do so: he is not to pay interest for any time within the twelve months, although during that time he may have received in- terest. But if he has assets he is to pay interest from the end of the twelve months, whether the assets have been productive or not.^ WELCH et al. v. ADAMS et al. (Supreme Judicial Court of Massachusetts, Suffolk, 1890. 152 Mass. 74, 25 N. E. 34, 9 L. R. A. 244.) Devens, J.f * * * The first question presented by the execu- tors, according to the report, is whether the legacy by Mr. Isaac Adams to his wife carries interest from the date of the testator's death, or from the end of one year thereafter. This bequest was of "the sum of six- ty-four thousand dollars in money, to be paid her as soon as convenient after my decease," and was acccompanied by a devise to her of five pieces of productive real estate in Massachusetts, of which she was « On a legatee as a creditor entitled to interest, see In re Rutherford, 19G N. Y. .311, 80 N. E. S20 (1900). As to interest on legacies, see, also, 3 Prob. Rep. Ann. 563, note ; 9 1j. R. A. 248-2.->0. note; 6 Am. & Eng. Ann. Cas. .525, note. In Harrison v. Watkins, 127 Ga. 314, 56 S. E. 437 (1907), interest did not begin to run for 17 years. t Part only of the opinion is given. Ch. 4) PAYMENT OF LEGACIES AND SHARES. GJ:J9 dowable. These provisions by the devise and bequest in behalf of his wife are declared to be in full satisfaction "of her dower and homestead rights in my estate, and of all distributive share or rights whatsoever therein." In Pollard v. Pollard, 1 Allen, 490, it was held that a widow to whom a legacy was given in lieu of dower was entitled to be paid in full, in case of a deficiency of assets, in preference to legatees who were mere volunteers, and also to receive interest thereon from the death of the testator, if he had provided no other means for her sup- port during the first year after his death ; and this upon the ground that she is to be regarded as a purchaser for value, by reason of her relinquishment of her important rights in her husband's estate. The question here presented is, however, to be decided according to the law of New Hampshire. It is not merely a question of how property shall be here administered, but what is the construction and effect of the will, and what was the intent of the testator by its provi- sions. The construction of the will, and the distribution thereby made of the testator's personal estate, are to be governed by the law of his domicile. Sewall v. Wilmer, 132 Mass. 136 ; Pub. St. c. 138, § 1. By the law of New Hampshire, as of Massachusetts, the wife is treated, in accepting a provision by will, as a purchaser for value, and the general rule which applies in the case of creditors who receive a legacy in sat- isfaction of a debt, and who are held entitled to interest from the death of the testator, would apply where no different intent is shown. Towle V. Swasey, 106 Mass. 100; Williamson v. Williamson, 6 Paige, 298. But by the law of New Hampshire, as of Massachusetts, while the wid- ow is a purchaser for value she also has a right to determine_ whether she will accept the provision made, and to accept or reject it as she may choose. Gen. Laws N. H. c. 202, §§ 9, 18 ; c. 193, §■ 13. If she accepts it, she must accept upon the terms and conditions on which it is. made. She can have only what the will gives her, and in the mode in which it gives the property bequeathed to her. The precise point decided in Pollard v. Pollard, ubi supra, does not appear to have been decided in New Hampshire. In Loring v. Wood- ward, 41 N. H. 391, it is said that to the general rule there laid down, that a pecuniary legacy, payable generally, without designation of any time of payment, is payable at the end of a year from the death of the testator, without interest, and, if not then paid, with interest after the end of the year, there is one exception, which is in favor of minor children of the testator, who are entitled, unless other provision is made for their support, tp interest upon their legacies from the date of the testator's decease. It is argued, therefore, by the residuary legatees, that in New Hampshire no such exception exists in favor of the tes- tator's widow as has been held to exist in Massachusetts, as other- wise the learned chief justice of New Hampshire who delivered the opinion would not have failed to state it. We shall not have occasion to consider this contention, or whether the language used is fairly to 640 PROBATE AND ADMINISTRATION. (Part 3 be construed as holding that no other exception to the general rule than that specified actually exists in New Hampshire. We are of opinion that upon other grounds the position taken by the residuary legatees is correct. In Pollard v. Pollard, ubi supra, it is clearly implied that if .other provision is made by the testator for the support of the wife, which will avail her during the year following her husband's decease, she would not be entitled to interest from that time. The legacy to Mrs. Adams was accompanied by a devise to her of five pieces of productive real estate, to the considerable income of which she became at once entitled, and the case is not presented of a widow left without other means of support than her legacy. In Loring v. Woodward it is said that minors are entitled to interest upon their legacies from the decease of the testator only in those cases where no other provision was made. If, therefore, it can be held that in New Hampshire the same exception exists in favor of the widow as to the allowance of interest that exists in this commonwealth, it cannot be reasonably doubted that it applies only in those cases where other provi- sion is not made for her support. Again, it is said in Loring v. Wood- ward, ubi supra, that the general rules there laid down on the subject of interest and income do not apply where specific directions are given by the will, or where a different intention is to be inferred from its provisions. The inference is fairly to be drawn from the provisions of Mr. Adams' will that he did not intend that the payment of the legacy should be immediate. If a will is silent as to the time when a legacy is to be paid, one to whom such a legacy is bequeathed, and who stands in the position of a purchaser for value, is entitled to have the time of payment determined by the legal presumption of the intent of the tes- tator. If a time were specified for its payment, he could make no claim for any delay in its payment except after the expiration of the time specified. By the terms in which the legacy to Mrs. Adams was given, no time for its payment was specifically stated; but the provision that "it shall be paid as soon as convenient after my decease" dis- tinctly shows that the legacy would not be paid at once, but that its payment would be governed by the convenience of the estate. The rule that legacies draw interest only after the expiration of a year contemplates that such a time is a reasonable one for the collection of assets and reducing them to money. By accepting her legacy to be paid at the convenience of the estate, for that is its fair interpretation, the widow consented to wait for the expiration of the usual time for its payment. It follows that she would not be entitled to interest until the end of a year, and such instruction is given accordingly.* The next question reserved for our consideration by the report, and « Tn Good Samaritan Hospital v. Mississippi Valley Trust Co., 137 Mo. App. 170, 117 S. W. 637 (1909), it was held that where the probate of a will is con- tested, and legacies therefore cannot be paid until the establishment of the will, general legacies do not bear interest pending the contest, since interest Ch. 4) PAYMENT OF LEGACIES AND SHARES. * 641 on which the bill requests instructions, is whether the interest upon both the legacies of $64,000 to the widow and $5,000 to Julius Adams, is affected by a deposit made on August 8, 1887, with the New Eng- land Trust Company, to the credit of Julius Adams, of an amount equal to these sums ; and also in what manner, and at what rate, in- terest on these sums shall be computed. * * * On August 8, 1887, the plaintiffs, after some correspondence with Ju- lius Adams, who had become the administrator with the will annexed of the estate of his mother, who had then deceased, deposited with the New England Trust Company the amount of the two legacies of $64,- 000 and $5,000 (together with another sum for rents collected, not necessary to be here considered) to the credit of Julius Adams. These sums were deposited without any interest being included, the matter of interest having been the matter in dispute between Adams and the executors. Adams never authorized or ratified this deposit with the trust company, refused to receive the deposit book, and has in no way recognized the deposit, which bore interest at the rate of 21/2 per cent. He had been informed before the deposit was made, he having declined to receive these sums without interest, that they would be thus de- posited unless he should receive them, or designate some other place for their deposit. On behalf of the residuary legatees it is contended that the execu- tors had a right to require Julius Adams to receive, on account of the legacies, the principal of the amounts due; that he was not at liberty to refuse to receive any portion unless the whole sum due was paid; and that the deposit of these sums with the trust company was a valid appropriation in part satisfaction of the legacies. It is conceded by them that the legacies carried interest from the end of a year after the testator's death, and therefore that the sums deposited on account of the legacies were less than the amounts due at that time. cannot t)egiD until the legacies are payable. Compare In re Gans' Will, 130 App. Div. 454. 114 N. Y. Supp. 97'5 (1909). But see In re Woodward's Estate, 78 Vt. 254. 62 Atl. 718 (1903), where the court says (78 Vt., at page 258, 62 Atl., at page 719): "But, if the probating of the will or the granting of letters is made the controlling factor, the value of a bequest may be lessened by a postponement of payment without interest, on the happening of a great variety of contingencies which the testator cannot be supposed to have had in con- templation. When this takes place, the scheme of the ordinary will is re- versed, and the more favored bequests are lessened in value to increase the residuum." And see In re Rutherford. 196 N. Y. 311, 315. 89 N. B. 820, 821 (1909). where the court said: "Whether the assets of the estate have been fruitful or unproductive does not affect the right of the legatee. He is in the same position as a creditor, and entitled to be awarded interest at the legal rate for such time as he is kept out of his demand." Compare the ques- tion of when the liability of a devisee for interest on a legacy charged upon the land or upon him personally begins. 12 Prob. Rep. Ann. 309, note. As ta the devisee's personal liability, see 129 Am. St. Rep. 1050, note. On the dev- isee's defense of the statute of limitations to the debts so charged, see S L. R. A. (N. S.) 393, note. Cost. Wills — 41 642 PROBATE AND ADMINISTRATION. (Part 3 The first inquiry which we consider in this transaction is whether the plaintiffs, as executors, were then in a position rightfully to make ap- propriations for the payment of legacies. If they were not, Adams could not be called upon to deal with them, nor be bound to assent to their acts. * * * On the 8th of August, 1887, the plaintiffs were not executors in this commonwealth. As executors of a foreign will, they had no right to act here, and to dispose of the estate here. In order that they should have this authority, it was necessary that the will should have been here admitted to probate, and letters testamentary issued to them. Campbell v. Sheldon, 13 Pick. 8 ; Pub. St. c. 127, § 'j'_ * * * Adams was not called upon to deal with the plaintiffs while occupy- ing so ambiguous a position, or to recognize them as having authority as executors under the laws of New Hampshire to deal with property here without having been authorized to do so by this commonwealth. Until, in its discretion, thci probate court directed the personal estate here found to be transferred to the foreign jurisdiction, executors there could not rightfully deal with it. Many acts may without doubt be done by one as executor previous to his appointment, as such, which, if in themselves not illegal, and such as an executor may properly do, might be validated by his subsequent appointment relating back to the time of doing the acts. No person, however, is required to deal with one who may thereafter be appointed as executor, trusting to the chance that he will be appointed, or to consent to appropriations made by him in the anticipation that they may thereafter be lawfully made. * * * At the time when the plaintiffs undertook to offer payment of the legacies, to appropriate a sum therefor, and to make a deposit thereof, they had no authority to do so in such manner that the rights of the legatees would be affected. Nor, irrespective of this matter of the plaintiffs' authority, are we of opinion that legatees are bound to accept a payment by installments which should operate pro tanto to diminish their claims, * * * jj^ this commonwealth, * * * the probate courts are authorized to order partial distribution of the funds of estates in the course of ad- ministration. Pub. St. c. 136, § 21, * * * The existence of the power in the court to order partial payments, and its frequent exer- cise, do not indicate that the executors have any such power, but rather otherwise. If the legatee or creditor should consent to receive partial payments, which no doubt are often made without any or- der of court, it certainly would be right that interest on his claim should be diminished. In the case we are considering the two sums offered to Adams, and deposited to his credit, were refused by him, and it is conceded that they did not equal, interest included, the amount of the legacies to which, in his own right and that of his mother, he was entitled. Even if the offer was made that Adams should receive these sums for the legacies, leaving the question of in- Ch. 4) PAYMENT OF LEGACIES AND SHARES. 643 teiest upon them open for further consideration or litigation, he was under no obligation thus to accept them. * * * The question remains to be determined at what rate interest shall be computed. It is urged on behalf of the residuary legatees that it should be something less than the legal rate, and that certainly this •should be so after the deposit made by the plaintiffs, upon which only 21/2 per cent, was to be allowed. In the view we have taken, the mat- ter of interest is not affected by the deposit. That interest at the legal rate is payable after one year from the testator's death, is well estab- lished as a general rule in Massachusetts and New Hampshire. Loring V. Woodward; Kent v. Dunham, ubi supra [106 Mass. 586] ; Ogden V. Pattee, 149 Mass. 82, 21 N. E. 227, 14 Am. St. Rep. 401. _ Even •where the estate could not have been reduced to money within that time, or where the administration had not been taken for a considerable time after the death of the testator, it would still be allowed to the legatee as an incident and accretion to the legacy. Ogden v. Pattee, ubi supra; Lamb v. Lamb, 11 Pick. 371; Martin v. Martin, 6 Watts (Pa.) 67. This allowance is made, not merely because it will be pre- sumed that the estate will, after the year has expired, have actually made this sum, but also because, as it would be difficult, if not impos- sible, to investigate how much interest had been made in such cases, it is a reasonable rule to adopt that rate of interest which the law has fixed where none other is stipulated for. It is urged that it is a matter of public knowledge that no interest can now be obtained as high as 6 per cent, on any safe investment; that such an allowance should no longer prevail ; that the court should determine, either directly or with the aid of a master, what could rea- sonably have been obtained, and that this only should now be allowed. It is probable that the rate of interest does not so nearly represent now what can be earned by a safely invested fund as it did when it was originally established by statute as the legal rate, and that it would be difficult now to obtain it. But, as it is inferred that where no time is specified for the payment of a legacy it is not to be paid until the end of a year from the death of a testator, so it is a reasonable inference that the testator intended, if the legatee did not receive it until some time after that period, that he should then receive it with the interest allowed by law. His gift fairly imports this, because that is the rate where a debt or payment which is due in prassenti is deferred. This view is not in conflict with Williamson v. Williamson, 6 Paige (N. Y.) 298, and Healey v. Toppan, 45 N. H. 243, 86 Am. Dec. 159. The question in these cases was not between legatees of specified sums and the estate, but between those who were the legatees, one class of whom were entitled to an estate for life in the legacy, and the other to the remainder. As between them, there was no doubt that the tenant for life, after the fund was actually formed, was entitled only to the interest or income which it produced. In determining what should be 644 PROBATE AND ADMINISTRATION. (Part 3 the basis of apportionment between them before the settlement of the estate and before it was actually formed and productive, it was deter- mined that 5 per cent, upon it as ultimately ascertained would be right, as it represented the income which might have been obtained. It by no means follows that what is right as between legatees interested in different proportions in the same fund is a proper rule between a legatee of a definite sum and the estate of the testator. It is urged that by the English rule less than the usual or legal rate of interest is often allowed, and that the amount of interest which legatees are entitled to recover is regulated by the court of chancery with reference to the amount which executors could have made, and that this rate has been diminished from time to time by reason of the change in the value of the interest upon money. Beckford v. Tobin, 1 Ves. Sr. 308, 311 ; Guillam v. Holland, 2 Atk. 343 ; Wood v. Bri- ant, Id. 523 ; Sitwell v. Bernard, 6 Ves. 520. The rule of the court of chancery appears from these cases to have been that it could de- termine, at its own discretion, how much interest should be allowed, and even without inquiry into the circumstances of any particular case. Sitwell V. Bernard, ubi supra. No action could have been brought at common law to recover, the amount of a legacy which was treated only as a direction to the executor. The- remedy of the legatee was only in the ecclesiastical courts or the court of chancery. These courts have always assumed the right to determine the terms on which the ben- eficiary should receive it. This is given as one of the reasons why an action at law should not be maintained for it. Decks v. Strutt, 5 Term R. 690 ; Allen v. Edwards, 136 Mass. 138. In this commonwealth an action at law has long been the remedy to recover the amount of such a legacy. Allen v. Edwards, 136 Mass. 138, and authorities cited. Such is the rule, we believe, in most, if not all, of the states of the Union. While in many cases interest has been recovered, none has been cited or is known to us where it has been at less than the legal rate. It has been recovered upon the same principle that it is awarded in any case where the payment of a debt due has been deferred. We have no reason to believe that the law of New Hamp- shire in this respect differs from that which prevails in this common- wealth, and we do not feel authorized to change the rule so long as the statute remains unchanged which fixes a rate of interest. Kent V. Dunham, ubi supra; Ogden v. Pattee, ubi supra; Pub. St. c. 77, § 3; Wood v. Corl, 4 Mete. 203; Loring v. Woodward, ubi supra; Gen. Laws N. H. c. 232, § 2. The executors are therefore instructed that the legacies of $5,000 and $64,000 are payable, with legal interest, in a year from the death of the testator. Instructions accordingly.* « On the rate of interest, see Loring v. Thompson, 184 Mass. 103, 68 N. B 46 (1903). Ch. 4) PAYMENT OF LEGACIES AND SHARES. 645 WELSH V. BROWN. (Supreme Court of New Jersey, 1881. 43 N. J. Law, 37.) On writ of error to Morris circuit. Catherine Welsh died on the 22d of April, 1874. By her will, dated April 20th, in the same year, she made to the plaintiff the fol- lowing bequest: "I do give and bequeath to my niece, Aletta Brown, my gold watch, my melodeon, my black earrings, my black furs, one set silver tea- spoons (second choice), my cashmere shawl, my brown silk dress, and the interest of twenty-five hundred dollars, to be paid to her an- nually by my executor; and at her death the said sum of twenty-five hundred dollars shall be paid to or divided equally among any child or children of hers that may then be living, or their heirs ; but if the said Aletta Brown shall die leaving no children or grandchildren liv- ing, then I do order the said sum of twenty-five hundred dollars di- vided equally among my heirs. I also give her all my mourning clothing." She also gave sundry pecuniary legacies and specific legacies of personal property to different legatees, after which the will contained the following provisions: "I do order that none of the legacies or interest herein given or bequeathed shall be due or payable during the lifetime of my mother, but that all interest that may acci'ue or become due on any obligations belonging to my estate shall be used for the comfort and support of my mother; and if said interest is not sufficient, then I do order my executor to pay out of my estate such sum as may become necessary for the support of my said mother and for her burial." She further orders and directs as follows: "I do order and direct that all taxes that may be levied or assessed on any money or interest herein bequeathed or given away shall first be deducted from the said money, and the balance paid, and said money or interest shall be sub- ject to the taxes as long as it remains in the hands or control of my executor. * * * I do order and direct that, after putting at interest a sum sufficient to pay the interest, and paying the legacies herein be- queathed, and after settling my estate, if any balance shall be found due my estate or in the hands of my executor, he shall then divide such sum, share and share alike, among my heirs." This action was brought by Miss Brown, the legatee, against the executor of the deceased, to recover $175, one year's interest on the said sum of $2,500, accruing between the 22d of April, 1874, and the 22d of April, 1875. The defendant demurred to the declaration, and the question designed to be raised by the demurrer was, whether, un- der the bequest to the plaintiff, she was entitled to interest on the said sum of $2,500 from the death of the testatrix, or from the ex- piration of one year from that event. 646 PROBATE AND ADMINISTRATION. (Part 3 This question the court below decided in favor of the plaintiff be- low. Hence this writ of error. Depue, J. In determining as of what time legacies shall take effect and be payable, certain general rules have been adopted ; and testators, in making their wills, are considered as framing their testamentary dispositions in view of those general rules. Specific legacies are treated as severed from the bulk of the tes- tator's property by the operation of the will, and their increase and emolument are regarded as specifically appropriated for the benefit of the legatee from that period; though the time for the enjoyment of the principal may be postponed to a future period. With respect to general legacies, the law, for convenience, has prescribed, as a gen- eral rule, that where no time is named by the testator, and in the ab- sence of any intention derived from the will itself, such general lega- cies shall be raised and satisfied out of the testator's estate at the ex- piration of one year next after his death. 2 Roper on Leg. 1245 ; 2 Lead. Cas. in Eq. 639, notes to Ashburner v. MacGuire. On a legacy coming within the class of general legacies, if the legacy be not paid at the expiration of the year, interest from that time will be allowed as damages; and interest on a legacy will not be com- puted from a period prior to that time, unless there be a clear ex- pression of intention that interest shall be reckoned from an antece- dent time or event. In that case the interest is regarded as of the sub- stance of the gift, and is not recoverable, as such, unless there be a clear intention apparent on the face of the will that interest shall be payable from a period prior to the expiration of the year. To this general rule there are a few well-established exceptions. A legacy given in satisfaction of a debt will carry interest from the tes- tator's death. Clark v. Sewell, 3 Atk. 99. Interest on a legacy to a minor child of the testator, or to one to whom the testator is in loco parentis, will be allowed from the testator's death as a provision for maintenance, where no provision is made by will or otherwise for the support of such legatee. Brinkerhoff v. Merselis, 24 N. J. Law, 680 ; Cox v. Corkendall, 13 N. J. Eq. 138; Hennion's Ex'rs v. Jacobus, 27 N. J. Eq. 28 ; Ex'r of Kearney v. Kearney, 17 N. J. Eq. 59, 63. 501. Where the bequest is of an annuity, in the absence of any direction to the contrary, the annuity will commence from the death of the testator, and the first payment become due at the end of the first year from that event. In this respect an annuity differs from a gen- eral legacy; for a general legacy, not being payable out of the tes- tator's assets before the end of the year from the testator's death, no interest will be due thereon until the expiration of the second yean 2 Rop. on Leg. 1215.'' B Interest wns allowed on the \inpaid annual payments of an annuity In Wlllcox V. Willcox, lOG Va. G2G, m S. E. 5S8 (1907). Ch. 4) PAYMENT OF LEGACIES AND SHARES. 647 There is another class of cases which are apparently exceptions to this general rule; but those cases stand upon peculiar and special grounds, and are regarded as a class by themselves. On a bequest of the residue of the testator's estate, or of some aliquot part or propor- tion thereof, in trust to pay the interest or income to a legatee for life, with a gift of the principal over at his death, the interest or income payable to the life tenant will be computed from the testator's death. Green v. Green, 30 N. J. Eq. 451 ; Green v. Blackwell, 32 N. J. Eq. 768 ; Van Blarcom v. Dager, 31 N. J. Eq. 783 ; 2 Spence's Eq. Jur. 552-569; Howe v. Earl of Dartmouth, 7 Ves. 137, and the notes to that case in 2 Lead. Cas. in Eq. 686 et seq. Cases of this class are distinguished from legacies of a definite sum with remainder over, with respect to the computation of interest to the life tenant. 2 Wms. on Ex'rs, 1391 ; Fearns v. Young, 9 Ves. 549, per Lord Eldon; Baker v. Baker, 6 H. of L. Cas. 623, per Lord Chelmsford; Van Blarcom v. Dager, 31 N. J. Eq. 783, per Dodd, J. In the case last cited, the computation from the testator's death of interest or income to the life tenant, where the gift is of the residue, is placed on a special equity as between the parties who are to partici- pate in the gift, arising from the injustice that would be done to the life tenant by the addition of the entire interest to the capital. 2 Rop. on Leg. 1320. That the computation of interest as between the life tenant and re- mainderman, where the corpus of the gift is the residue of the tes- tator's estate, is founded exclusively on the special equity between the parties among whom the gift is to be apportioned, is apparent from an examination of the cases. For the first year, sometimes, the interest on the whole income is allowed the life tenant; sometimes only a portion of the income for the first year is allotted to the life tenant, and the balance is added to increase the capital, for the reason that, in such cases, the circumstances are such that it would be in- equitable to the remainderman to give the whole produce of the first year to the life tenant ; and sometimes the allowance to the life tenant for the first year is upon a percentage determined by the court, on a consideration of what would be just and equitable as between the par- ties, under the circumstances of the particular case. Hewitt v. Morris, 1 Turn. & Russ. 241 ; Fearns v. Young, 9 Ves. 552 ; Brown v. Gell- atly, L. R. 2 Ch. App. 751 ; 2 Spence's Eq. Jur. 558 et seq. The apparent conflict in the decisions on this subject is in a large measure due to the failure to observe the special grounds on which the computation of interest is made as between the life tenant and re- mainderman, where the corpus of the gift is the residue of the tes- tator's estate. Some of it is also attributable to expressions used in that class of cases where interest is allowed by way of maintenance for minor children, or those to whom the testator is in loco parentis. If those cases which are universally considered as exceptional, and C48 PROBATE AND ADMINISTRATION. (Part 3 resting on special and peculiar grounds, are put aside, the decisions the subject of interest on legacies are quite consistent and har- as on monious. The contention upon which the judgment below is sought to be sus- tained is, that the gift to Miss Brown is of an annuity, and that the intention of the testatrix to pay her interest from her death is to be deduced from the language of the bequest. An annuity is defined to be a yearly payment of a certain sum of money. 2 Wms. on Ex'rs, 809 ; Booth v. Ammerman, 4 Bradf. Sur. (N. Y.) 129. The first payment of an annuity given by will is due at the end of one year from the testator's death. This is one of the ex- ceptions to the general rule with respect to the enjoyment by a life tenant of the benefits given by will. Where a general legacy is given to one for life, with remainder over to another, no interest will be due until the expiration of the second year. 2 Rop. on Leg. 1253. This distinction between an annuity and a legacy for life with re- mainder over, was taken by Lord Eldon in Gibson v. Bott, 7 Ves. 89, 96. His language is: *lf an annuity is given, the first payment is paid at the end of one year from the death ; but if the legacy is given for life, with remainder over, no interest is due till the end of two years ; it is only interest on the legacy, and until the legacy is payable there is no fund to produce interest." Mr. Roper approves of this distinction as founded on principle, and, speaking of the disposition of a sum of money and the interest of it given as an annuity to one for life, says that the annuity, being given in the form of interest upon a gross sum of money to be taken out of the assets as any other legacy, cannot be payable sooner than the fund produces the means for that purpose. 2 Rop. on Leg. 877. In the present case the gift to the plaintiflf is of the interest on a gross sum — $2,500 — to be paid to her annually by the executor; and after the plaintiff's death the principal sum is payable to other parties. The will provides that the executor, after putting out at interest a sum sufficient to pay the interest and legacies bequeathed, shall divide the residue among the heirs of the testatrix. It further directs that all taxes on the money or interest bequeathed should first be deducted, and the balance only paid, and that the said money or interest should be subject to the taxes as long as it remained in the hands or under the control of the executor. In substance the bequest is to the executor to invest and pay over the net income or interest, after deducting taxes, to the life tenant during her life, and after her death, to pay the entire principal to the legatees in remainder. The executor, in the administration of the es- tate as executor, was under no obligation to set apart the principal sum on which interest was allowed until the end of the first year ; and until that separation was made, there was no fund to produce interest for the life tenant. In legal eflFect the bequest is analogous to those in Lowndes v. Lowndes, 15 Ves. 301, and Raven v. Waite, 1 Swanst. Ch. 4) PAYMENT OF LEGACIES AND SHARES. * 649 553, upon which interest was allowed only from the expiration of the year. In my examination of the English cases, I have not found a single decision in which a bequest similar to that under consideration, has been considered as excluded from the general rule that the legacy shall for such purposes, take effect after the lapse of the year. The distinction between an annuity pure and simple, which is to be paid at all events out of the testator's estate at the expense of the residuary legatee, and the interest or income for life, of a certain sum set apart by the testator for that purpose, and given over in gross to another after the death of the life tenant, has been quite uniformly adhered to. Baker v. Baker, supra, was decided upon that distinction. Lord Cran- worth, in delivering his opinion, said: "In all these cases arising upon the construction of wills, the real question is, whether that which is given is given as an annuity, or is given as the interest of a fund ; and where that question is to be considered, what you must look to is this : whether the language of the testator imports that a sum, at all events, is annually to be paid out of his general estate, or only the interest, or a portion of the interest, of a capital sum which is to be set apart." This distinction is recognized by Lord Justice Rolt in Birch v. She- wall, L. R. 2 Ch. App. 649. The principle on which it rests is that a bequest of a specific sum of money is one gift, one legacy, the bene- fit of which the testator has apportioned between the donee for life and the remainderman. To the life tenant he has given the interest or produce of the fund during life, and the capital sum to the re- mainderman after the death of the former. Such a legacy is, there- fore, subject to the rule that general legacies are to take effect and be payable at the expiration of a year from the testator's death. The executor is not bound to set apart the legacy for investment before the end of the year; and until that be done there is no fund to produce the interest that is payable to the life tenant. In Knight v. Knight, 2 Sim. & Stu. 490, the bequest was to each of the children of T. W., "as soon as they attain the age of twenty-one years, the sum of i2,000, with interest at the rate of five per cent, per annum ;" and interest was held to be computable only from the end of the year, for the reason that the executors would not be bound to make an investment for the security of the legatees until the end of the year. In the courts of this country the weight of authority is in the same direction.* * * * I think that for the reason already given, the judgment should be reversed. It may be remarked that, on a ground that may be technical, and was not taken on the argument, the same result would be reached. The testatrix directs that none of the legacies or interest given or « The discussion of the American cases is omitted. 650 PROBATE AND ADMINISTRATION. (Part 3 bequeathed, shall be due or payable during the lifetime of her mother. A copy of the will is annexed to the declaration, and by averment, made part of it ; and the death of the mother of the testatrix is no- where averred in the pleading. Judgment reversed. In re FLICKWIR'S ESTATE. Appeal of JORDAN. (Supreme Court of Pennsylvania, 1890. 136 Pa. 374, 20 Atl. 518.) Under the will of the testatrix various legacies were given to the executors in trust. The legacies in trust were all substantially in the following form: "I give and bequeath to my executors, hereinafter named, the sum of $ , in trust, nevertheless, to pay the interest and income thereof to A. B. for life, and at her decease to pay and distribute the principal to C. D." etc. The estate being large enough to pay all the particular legacies and leave a residuary estate of about $77,000, the beneficiaries for life under the bequests to the executors asked the court to award them interest from the death of the tes- tatrix upon the respective sums so bequeathed. This the court did, and three of the residuary legatees appealed. Mitchell, J."^ Act Feb. 24, 1834, ■§ 51 (P. L. 83), provides that "legacies, if no time be limited for the payment thereof, shall in all cases be deemed to be due and payable at the expiration of one year from the death of the testator." As interest only accrues by contract, or as damages for default of payment of money which is due, it fol- lowed that the deferring of the period of payment also postponed the accrual of interest until a year from testator's death. This is, there- fore, the general rule, and it was the well-settled rule of the common law long prior to the date of the statute. It is, however, purely a rule of administrative convenience. It has no other merit. Certainly, to take an example from the case in hand, there is no in- herent equity in mulcting the primary legatees of a solvent estate, in a year's income, for the benefit of the residuaries, presumably the low- est in the scale of the testator's intended bounty. Being a rule of convenience only, it gives way at all times to the intent of the tes- tator, whether express, as provided for in the statute itself, or im- plied from the general scheme of the will, or from particular expres- sions, or from the situation of the legatee, especially with reference to the testator. Certain exceptions, therefore, arising primarily from the testator's intent, have become as firmly established as the rule it- self. The one with which we are specially concerned is the case of T The statement of facts is rewritten and abbreviated. Tlie opinion in the court below is omitted. Ch. 4c) PAYMENT OF LEGACIES AND SHARES. 651 an annuity, or its practical equivalent— the interest of a sum of money. It is settled that an annuity given as such commences from the tes- tator's death. Rop. Leg. 877. In Gibson v. Bott, 7 Ves. 96, Lord Eldon said that that was certainly the rule, but he remembered when it was not clear. In the same case he states that if a legacy is given for life, with remainder over, no interest is payable until the second year, and intimates that that is also the rule where a sum is given to be placed out to produce an annuity. On this authority, Roper lays down the rule that interest on a gross sum given as an annuity does not commence till a year after death. Roper, however, says there is no express decision to this effect, and Toller says the point is doubt- ful. Toller, Ex'rs, 324. This was the state of the authorities when the point came before this court, and the distinction intimated by Lord Eldon was repudiated. In Eyre v. Golding, 5 Bin. 472, the gift was to R., of ^"the interest of i400, to be paid her annually during her natural life." Chief Jus- tice Tilghman held that interest was payable from the date of tes- tator's death, saying: "The devise is not of a gross sum, but in the nature of an annuity. * * * The first payment of the annuity must be made at the end of the first year, or the intention of the tes- tator is not complied with. You must count the time immediately from his death, or the legatee will not receive the annuity annually during her life." Tilghman, J., laid much stress on the word "an- nually." But in Hilyard's Estate, 5 Watts & S. 30, the bequest was "m trust to place the same out at interest and pay the interest and income there- of, when and as the same shall be got in and received, unto my sister K.', for and during all the term of her natural life." The word "an- nually" did not occur at all, and yet Sergeant, J., says: "Between Eyre v. Golding and the case before us I perceive no difference. In- terest is in its nature an annual profit, and a direction to pay interest makes it payable annually, without anything further." After stating the general rule, he proceeds : "Where, however, it is not a bequest of the corpus, but of an income or annuity, there a contrary rule prevails ; and the legatee of interest for life has been allowed it from the death of the testator." It will be observed that, in this connection, "in- come" and "annuity" are treated as synonymous by Justice Sergeant, and by his reporters in their syllabus, just as "interest payable an- nually," and "annuity," had been treated by Chief Justice Tilghman and by Mr. Binney in reporting Eyre v. Golding. Hilyard's Estate was decided after full review of the English chan- cery authorities, and has been considered as settling the law. It was followed in Spangler's Estate, 9 Watts & S. 135, where Gibson, C. J., says : "Where the corpus of the legacy is interest accruing on a resi- due after payment of debts, and not the residue itself, it is well set- tled that unless a contrary intent is collectible from the tenor of the 652 PROBATE AND ADMINISTRATION. (Part 3 will, the legatee is entitled to all that is made from the death of the testator." And in Pennsylvania Co.'s Appeal, 41 Leg. Int. 26, the auditor held that there was no difference between "income" and "an- nuity," and this court affirmed the decision in a per curiam opinion, although in this case, as in Hilyard's Estate, there were expressions in the will which might afford ground for argument that the testator's actual intent was to postpone the commencement of the interest for a period after his death. These cases are authoritative on the present contention; but, even if they were less so, they should be followed as consonant to sound reason. There is no substantial dift'erence in legal aspect between the gift of an annuity for life and of the interest or income of a fund for life, nor between the gift simply of interest and of interest payable annually. Interest accrues de die in diem, but it is calculated at a rate per annum. In the popular understanding, it is chargeable annually, and payable the same way, unless custom or contract or specific direc- tion makes it payable at shorter intervals. The idea is so clearly im- plied that the actual use or omission of the word "annual" in the will does not seriously affect the intent and purpose of the testator. To make distinctions which depend not on his intention, but on the skill of his draughtsman, is contrary to reason and sound law, and is not to be encouraged. Decree affirmed, at cost of appellants. In re CRANE. ADAMS v. CRANE. (Supreme Court of Judicature, Chancery Division. [1908] 1 Ch. 379.) SwiNFEN Eady, J.* Interest from the testator's death is claimed upon the £8,000 trust legacy upon the footing that, although not ex- pressly given, an intention to give it in the shape of maintenance is fairly inferable. The income, however, of this legacy is not given to any infants for their maintenance, but to an adult person, subject to the obligation on her part of maintaining and educating the infants, and I am not ;aware of any case in which, under such circumstances, interest has been al- lowed. In Leslie v. Leslie, LI. & G. t. Sugden, 1, which followed Pett v. Fellows, 1 Swans. 561, note, interest from the death was allowed to infant grandnephews, because the fund was expressed to be given "for the use and support of the younger children." And so in In re Richards, L. R. 8 Eq. 119, interest was allowed from the death to certain infant grandnephews of the testator, to whom the testator was • The statement of facts is omitted. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 653 not in loco parentis, because the will empowered the executors to apply all or any part of the expectant share of any children, or the income thereof, towards his or her education, or otherwise for his or her benefit during minority. In all these cases the beneficiaries were infants, and the ground upon which interest was allowed was that the testator had impliedly directed that interest should be payable from his death, otherwise there would not be any fund for maintenance. This rule has not been extended to the case of adults. In Raven v. Waite, 1 Swans. 553, 559, a sum of £1,600 was be- queathed to trustees upon trust to apply the interest towards the main- tenance and support of Frances Raven (the wife of testator's nephew John Raven, from whom she was living separate), and the mainte- nance, education, and bringing up of her children until the youngest should attain twenty-one, and after that event to pay the income to Frances Raven so long as she remained the wife or widow of her present husband, with a direction that, in case of her death or re- marriage before that event, the trustees should take the children un- der their sole care and management and apply the interest towards the maintenance, education, and bringing up of the children until the youngest should attain twenty-one. The bill was filed by Frances Raven to establish her claim to interest on the £1,600 from the tes- tator's death; but Sir Thomas Plumer, M. R., dismissed the bill. He said that all the cases in which an exception had been admitted to the rule against allowing interest before one year from testator's death had been cases of infants ; that no case had been produced in which the exception ever was extended to a legacy in favour of an adult, though cases innumerable must have occurred of legacies to persons aged and decrepit, objects of the testator's bounty during his life. He added : "It is then insisted that this is a provision for the joint benefit of an adult parent and her infant children, and that the ex- ception in favour of the infants must prevail. But the gift here is to the mother, to enable her to maintain herself and her children, and the legacy is payable to her during her life; after her death, indeed, the trustees are to apply it for the maintenance of the children, but the mother is the primary object of the testator's bounty. Such a gift cannot form an exception to the rule." I therefore decide that the legacy of £8,000 does not carry interest for the period between the testator's death and the dates upon which the instalments of the legacy are paid. 654 PROBATE AND ADMINISTRATION. (Part 3 THAYER V. PAULDING et al. (Supreme Judicial Court of Massachusetts, Worcester, 1908. 200 Mass. 98, 85 N. E. 868; Knowlton, C. J. In the will of Edward Greene, there is a legacy to James P. Paulding of "125 shares of the capital stock of the Rand Drill Company of New York, a corporation, * * * to- gether with all the rights and privileges which may now or here- after appertain to the same." Within less than one year after the death of the testator, dividends on this stock, amounting to $825.16, were paid to the petitioner as executor, and the question presented is whether these dividends should be paid to the legatee, or used as a part of the general funds of the estate. This involves the question whether the gift of this amount of stock is a specific legacy or a gen- eral legacy. If it is a specific legacy it covers this number of shares of stock held by the testator at the time of making his will, together with all their accretions from the time of his death to the time when the legacy should be turned over by the executor to the legatee, name- ly, to the expiration of one year from the time of the testator's death. If it is a specific legacy there would have been an ademption of it which would have left the legatee with nothing, if the particular prop- erty had ceased to exist, or been disposed of by the testator in his lifetime. On the other hand, if it is a general legacy it gave the legatee a right which vested on the death of the testator to have this number of shares delivered to him by the executor at the expiration of a year from the death of the testator, and this right had no reference to any particular shares. If a testator making such a gift had no such shares at the time of his death, or if he had them and for any reason the executor saw fit to sell them soon afterward, in the settlement of the estate, it would be the executor's duty to procure them by pur- chase before the expiration of a year from the time of the testator's death and then to deliver them to the legatee. Such procurement and delivery would satisfy the requirements of the will. Johnson v. Goss, 128 Mass. 433-436. It is agreed by the parties that at the time of the execution of his will the testator owned 375 shares of this stock and continued to own them to the time of his death. If we consider that part of the lan- guage which purports only to give the stock, disregarding the words "together with," etc., we think it plain on the authorities that they did not create a specific legacy. The number given was only a part of a large number of shares that the testator owned. See White v. Win- chester, 6 Pick. 48-52. There was no specification of what part, oth- erwise than by the quantity. There is no designation, such as the use of the word "my," to confine the gift to any particular shares. John- Ch. 4) PAYMENT OF LEGACIES AND SHARES. 655 son V. Goss, 128 Mass. 433-436 ; Slade v. Talbot, 182 Mass. 256, 65 N. E. 374, 94 Am. St. Rep. 653; Harvard v. Tufts, 151. Mass. 76, 23 N. E. 1006, 7 L. R. A. 390; Foote, Appellant, 22 Pick. 299; Tomlin- son V. Bury, 145 Mass. 346, 14 N. E. 137, 1 Am. St. Rep. 464. There is no bequest to the same legatee of both stock and money, such as sometimes has been much relied upon as showing an intention to make the legacy specific. See Metcalf v. Parish, 128 Mass. 370. See, upon the general subject, Tifift v. Porter, 8 N. Y. 516; Sponsler's Appeal, 107 Pa. 95. See Snyder, 217 Pa. 71, 66 Atl. 157, 11 L. R. A. (N. S.) 49, 118 Am. St. Rep. 900; Dryden v. Owings, 49 Md. 356; Davis v. Cain, 36 N. C. 304. If this is to be treated as a general legacy, the question arises wheth- er the words, "together with all the rights and privileges which may now or hereafter appertain to the same," enlarge the gift. We have already referred to the rule that an ordinary legacy is not payable un- til the expiration of a year from the time of the testator's death, and if the legacy is of money, no interest is payable upon it for that time, even if it is invested and interest upon it is received. Kent v. Dun- ham, 106 Mass. 586; Ogden v. Pattee, 149 Mass. 82, 21 N. E. 227, 14 Am. St. Rep. 401; Welch v. Adams, 152 Mass. 74-87, 25 N. E. 34, 9 L. R. A. 244. In the case of a mere general legacy of stocks, since a purchase by the executor and delivery to the legatee of the requisite number of shares at the end of the year would satisfy the requirements of the will, he would. not be called upon to procure or pay over divi- dends previously declared and paid to the owner. In reference to such a general legacy the words above quoted from the will would add nothing. They would be nothing more than a tautological and un- necessary statement, meaning that the stock should be perfect in its qualities as stock, without impairment in any way, and conveyed by a perfect title to give the legatee all the advantages that could belong to any owner. The words are more pertinent to a gift of a specific legacy than to a gift of a general legacy, although a gift of a specific legacy without these words would include all rights and privileges pertaining to the specific thing given, which accrued or existed after the death of the testator. They seem to point, to some particular stock in the mind of the testator, referred to by the words "the same." We regard the question whether this last clause is sufficient to change what would otherwise be a general legacy into a specific leg- acy, as the only difficult question in the case. A very slight indication of an intention to give shares then in his ownership is enough to make the legacy specific in a case like this. On the whole, we think the words should be considered as referring to this number of shares of the stock then owned by the testator, and as requiring that they be se.*: apart and, at the end of the year, turned over to the legatee with any increment accruing from them after the testator's death. All the lan- guage of the will should be considered together and given effect. (556 PROBATE AND ADMINISTRATION. (Part 3 We are of opinion that the testator intended by this clause to give a specific legacy. The dividends are to be paid to James P. Pauld- ing. So ordered.' In re PEARCE. CRUTCHLEY v. WELLS. (Supreme Court of Judicature, Chancery Division. [1909] 1 Ch. 819.) Adjourned summons. The testator, Sir W. G. Pearce, Bart, bequeathed to his wife all his furniture and effects, horses, carriages, motor cars, yacht, and jewelry, and gave his residuary estate to the plaintiffs, his executors and trustees, upon trust to pay the income thereof to his wife during her life, and after her death upon trust, in the events which happened, for Trinity College, Cambridge, absolutely. The testator died on November 2, 1907, and his will and codicils were proved by the plaintiffs on December 18, 1907 ; the gross value of his estate being sworn at the sum of £469,764 12s. 2d. The testator's widow died on December 23, 1907, having by her will appointed the defendants, S. R. Wells and G. G. Vertue, her executors, who proved her will on March 28, 1908. After the death of the testator the plaintiffs incurred considerable expense in retaining a large part of the staff of men and women serv- ants in one of the testator's houses in order to maintain and keep in good order the furniture and effects thereof, and to look after the 8 Compare Snyder's Estate, 217 Pa. 71, 66 Atl. 157, 11 U R. A. (N. S.) 49, 118 Am. St. Rep. 900 (1907) ; Jewell v. Appolonis (N. H.) 74 Atl. 250 (1909) ; Allen V. Allen (N. J. Ch.) 74 Atl. 274 (1909). In the latter case the important question was whether the legacy was specific or demonstrative. "A specifie legacy, if of stock, carries with it the dividends which accrue from the death of the testator, while a demonstrative legacy does not carry interest from the testator's death." Kindersley, V. C, in Mnllins v. Smith, 1 Drew. & S. 204 (l.%0). "In deciding whether a legacy is specific or general [or demonstrative], the intention of the testator must control, as it must the decision of every other question involving the construction of wills. There is no technical, ar- bitrary rule requiring the use of particular words or expressions to make a bequest specific. Such intention may be manifested either by clear words, or by the general scope and texture of the instrument; but in the latter case, in the language of Lord Eldon, the inference should rest upon a strong, solid, and rational Interpretation of the will." Van Fleet, V. C, in Wyckoff v. Per- riue's Ex'rs, 37 N. J. Eq. 118 (1883). "We regard it as a well-settled canon of interpretation that a bequest of a stated number of shares of stock of a designated corporation, without any reference to the particular shares intended to be bequeathed, is not specific, but general." Savage, J., in Palmer v. Palmer's Estate (Me.) 75 Atl. 130, 132 ',19(19). On whether a bequest of stocks, bonds, or notes, Is general, specific, or demonstrative, see 11 L. R. A. (N. S.) 49, note. On the right to dividends as between the executor and the specific legatee of stock, see 45 L. R. A. .393, 394, note. On the necessity and effect of assent by the executor to a legacy, set 50 Am. Dec. 4S.">, note. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 657 horses and carriages specifically bequeathed by the testator to his wife, and in paying the wages and expenses of the captain of the yacht, and in repairs to the yacht. The plaintiffs assented to the different specific bequests at various dates between March 23, 1908, and May 14, 1908. Subsequently the plaintiffs took out this summons for the determma- tion of the question whether the estate of the testator's widow should bear any, and what, part of the costs of the upkeep, care, and preserva- tion of the furniture and effects, horses and carriages, and yacht. Eve:, J., stated the facts, and continued : The question which I have to decide is whether the moneys which have been expended ought to come out of the general estate or ought to be borne by the specific legatee. Now it seems to be settled law that when an executor gives his assent to a specific legacy the assent relates back to the death of the testator, and the specific legatee is entitled to the profits accrued due from the time of the testator's death. That being so, it seems to me to be right and fair that the specific. legatee should be charged with the costs of the upkeep, care, and preservation of the specific legacy from the time of the death until the executor's assent, and I shall make a declaration to that effect, and direct an inquiry what ex- penses were properly incurred in and for such upkeep, care, and pres- ervation. SECTION 2.— THE ABATEMENT OF LEGACIES AND DEVISES In re TUNNO. RAIKES V. RAIKES. (Supreme Court of Judicature, Chancery Division, 1886. 45 Ch. D. 66.) Caroline Tunno by her will bequeathed her diamonds to her trus- tees upon trust for sale, and out of the proceeds to lay out £600 in repairing a certain parish church, and to lay out £700 in the building of six laborer's cottages. The will contained a residuary bequest. The diamonds realized a little over £900. The gift of £700 for laborer's cottages having been declared void, the residuary legatee claimed that the £600 legacy must abate with the £700, as the £900 proceeds would not pay both. Chitty, J.^ Then a further point is raised, which is this : It is said on behalf of the residuary legatee that as the gift of £700, to be paid out of the proceeds of sale of the diamonds, has failed, there is a lapse for the benefit of the residuary legatee. The diamonds did » The statement of facts is rewritten and abbreviated. Cost. Wills — 42 g58 PROBATE AND ADMINISTRATION. (Part 3 not produce £1,300, but only about £900, and the argument on behalf of the residuary legatee is that this £600 legacy must abate; the vicar and churchwardens thus taking six-thirteenths of the £900 only. It is plain that as between the legatee of the £700, had that legacy taken effect, and the legatees of this £600, there must have been an ,_ abatement in the proportions named ; but it does not follow that the residuary legatee can therefore claim seven-thirteenths of the £900. It is clear that if a specific property is given in trust for A. and B. as tenants in common in equal shares, and B. dies in the testator's life- time, A. takes only one-half of the property; and it is equally clear that the same result follows whatever be its fractions in which the property is divisible among the specific legatees. It is clear, too, that if property be given upon trust for sale, with a direction to divide the proceeds into aliquot portions, the gift intended in each case is that of a specific proportion only of the fund which the testator is disposing of, and the argument on behalf of the residuary legatee proceeds on the assumption that on the true construction of this will there is a gift to these two legatees of aliquot portions of the proceeds of sale of the diamonds. It is plain to my mind that that is not the true inter- pretation of his gift. It is not as if the testatrix had said : "I direct my diamonds to be sold for not less than a sum of £1,300, and I there- out give £600 to the church, and £700 to some one else." That would have amounted to a gift of the fund in specific proportions; but she has not done that. The foundation of the argument for the residuary legatee is the well-known case of Page v. Leapingwell, 18 Ves. 463. In that case the sum of the gift, to put it quite shortly, was: I distribute £10,000 in aliquot proportions among certain named legatees, with a gift over of the overplus moneys arising from the sale, upon certain trusts ; and on the question of construction as to the meaning of the word "over- plus," Sir William Grant held that it was equivalent, in that case, to a sum of £2,200, being the fractional remainder of the sum of £10,000 ; for the testator in that case, having directed a sale for not less than £10,000, Sir William Grant held that there was in substance a divi- sion of" that sum, in specific or aliquot portions, among named lega- tees, who were to take as tenants in common in the proportions named, and it followed that if any one of them died in the lifetime of the testator, or if for any other reason the gifts to any of them failed, such event did not increase the benefit intended to be given to the other tenants in common.* That decision has no application to the present case. To my mind, it is not open to argue on the con- struction of this will, that there is a gift here in fractions or aliquot proportions, of the proceeds of sale ; it contains no statement of the amount of the fund to be disposed of, nor of the sum for which the diamonds are to be sold, nor is there, in terms, any gift of the over- • Compare Van Nest v. Van Nest, 43 N. J. Eq. 126, 13 Atl. 179 (1887), where R trlft of "the reniainins .$SfX)" of .$1,300 was held not to be residuary, but to aliate eauallr with the $500 ffiven before. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 659 plus, in the event of the jewels realizing more than £1,300. Had the diamonds realized £2,000, no disposition is made in the will of the sur- plus, except in so far as such surplus would be swept up by the gen- eral residuary gift. It is clear that, if these jewels had sold for say £2,000, the legatees of this £600 would not have taken any more than £600. They could not have claimed six-thirteenths of the £2,000. In the result, the gift here is, to take a simple illustration, the same as if a testator were to give all the consols he was possessed of at his death upon trust for sale, and thereout to pay a legacy of £600 to A., and another legacy of £700 to B., in which case, there being no priority between the two, if the consols turned out to be insufficient, abatement would be necessary ; but in any case the charges on the con- sols would have to be paid before the residuary legatee could come in. The argument for the residuary legatee in this case appears to me to be an attempt to creep into the shoes of the legatee of the £700 as if that legacy had taken effect ; but this legacy has failed, and the resid- uary legatee is entitled to claim, not the legacy of £700, but only so much of the proceeds of sale of the diamonds as is not required to satisfy the £600 legacy; in other words, the residuary legatee can take nothing until this specific charge of £600 has been satisfied. It is not necessary for me further to consider the authorities. The result is, I hold that the contention of the residuary legatee fails, and that this £600 legacy must be paid in full.^* Appeal of ARMSTRONG. (Supreme Court of Pennsylvania, 1869. 63 Pa. St. 312.) Sharswood, J.^^ It was settled in England by Long v. Short, 1 P. Wms. 403, that specific devises of land and specific bequests of personalty must abate ratably in case of a deficiency of assets for the payment of the bond debts of the testator, because both lands and chat- tels were liable in law for those debts, and it was equally the inten- tion of the testator that the legatee should have the chattel, and the devisee the land. 1 Roper on Legacies, 254. In this state, where lands have always been assets for the payment of debts by simple con- tract as well as by specialty, the rule is general — that wherever there 10 "I come to the conclusion when an estate has been so depleted by the devastavit of an executor or trustee that there are not funds enough to pay the specific legatees in full, whatever there is must be devoted to the pay- ment of such legatees to the exclusion of the residuary legatees. There is no residuary estate to be distributed." Clarke, J., in Farmers' Loan & Trust Co. V. McCarthy, 128 App. Div. 621, 625, 113 N. Y. Supp. 207. 209 (1908). See. also, Buffalo Co. v. Leonard, 154 N. Y. 141, 47 N. E. 966 (1897), where on a flevastavit by the executor the residuary legatee was made to refund, so that pecuniary legatees might be paid. But see note to Anonymous, post, pp. 682, 683. 11 The statement of facts is omitted, and part only of the opinion is given. ^gO PROBATE AND ADMINISTRATION. (Part 3 is a deficiency of assets to pay both debts and legacies, specific devisees and specific legatees shall contribute proportionably. What is termed a demonstrative legacy, partakes, in this respect, of the privilege oi a. specific legacy. A demonstrative legacy is the bequest of a certam sum of money, with a direction that it shall be paid out of a particu- lar fund. It differs from a specific legacy in this respect: That if the fund out of which it is payable fails for any cause, it is never- theless entitled to come on the estate as a general legacy. And it diflfers from a general legacy in this : That it does not abate in that class, but in the class of specific legacies. 1 Roper on Legacies, 153. It is settled by this court that, in the marshaling of assets for the payment of the debts of a testator, specific devises of land abate proportionably with specific and demonstrative legacies. Barklay's Estate, 10 Pa. 387; Hallowell's Estate, 23 Pa. 228. The legacy to Mrs. Rea falls clearly within the class of demonstra- tive legacies. By the will the sum of $1,200 was to be paid to her out of the proceeds of the mill property, and by the codicil she was to have in addition, out of the proceeds of the sale of the mill, bank stock, and other personal property, a sum sufficient to make her equal to her sister Elizabeth, in the amount which the testator had loaned and paid to her husband. There is certainly, nothing in the will to evince a different intention. On the contrary, the testator carefully provides that if the sale of his mill property should not produce suffi- cient to pay the sums bequeathed to his daughters respectively, they were to be paid out of his estate in general ; which strongly implies a preference and priority to them, and that their legacies were to be paid to them at all events. Duncan v. Alt, 3 Pen. & W. 382. To apply any less favorable rule to Mrs. Rea than that which was adopted in this case would most clearly disappoint the intention of the testator, "and cut up his plan of distribution by the roots." While the other devisees and legatee would receive their bequests in full, the entire loss would fall on ]\Irs. Rea as effectually as if she had been a mere residuary legatee and postponed to them all. * * * Decree [confirming the auditor's report deciding that Mrs. Rea's legacy abated proportionately with specific devises and bequests] af- firmed, and appeal dismissed, at the costs of the appellants.^* 12 In Kelly v. Richardson, 100 Ala. 584, 599, 13 South. 785, 791 (1893), it Is Bald: "It is the policy of our laws that both real aud personal property are equally liable for the debts of decedent, and that realty devised aud per- sonalty bequeathed shall, where the devise and legacy are of the same char- acter, abate ratably when there is a failure of assets undisposed of by the will to pay debts. It is In keeping with this policy that the rule by which spefific legacies and specific devises are abated ratably by the necessities of contributions to the debts of the estate has come to be established. It follows logically from this policy and this rule in respect to specific dispositions of realty and personalty respectively that general devises shall contribute ratably wi*h general legacies to debts and expenses of administration, and we so bold" (McClellau, J.). See. also, Estate of Woodworth, 31 Cal. 595 (1867). Ch. 4) PAYMENT OF LEGACIES AND SHARES. 661 GELBACH V. SHIVELY. (Court of Appeals of Maryland, 1887. 67 Md. 498, 10 Atl. 247.) Alvey, C. J. This case was brought to obtain a judicial construc- tion of the will of George Gelbach, Jr., deceased, and to have deter- mined the rights of certain parties thereunder. George Gelbach, the testator, died in Feb. 1880, leaving a widow and two children, and four grandchildren, all provided for in his will, which was duly admitted to probate. The father of George Gelbach, Jr., had died in 1879, leav- ing three children, including George, as his only heirs and distributees, and he left a small estate, consisting of real and personal property in Pennsylvania, where he died, and some real property in the City of Baltimore. George Gelbach, Jr., by his will, after giving some few legacies, made the two following bequests : "Item. I give and bequeath out of the portion or share of my fa- ther's estate that may come to me, one thousand dollars to my brother, Joseph Gelbach." "Item. I give and bequeath (out of the share or portion of my father's estate that may come to me) one thousand dollars to my sis- ter, Elizabeth Shively." He then devised and bequeathed all the rest and remainder of his estate, real and personal, to be divided into three equal parts, one of In some .inrisdictions residuary devises are treated as specific devises. See Lancefield v. Iggulden, post. p. (5G9. While by the general rule specific devises and specific legacies must abate pro rata, a few .lurisdictions make specific legacies abate before specific de- vises. See Gordon v. James, 86 Miss. 719, 755, 39 South 18, 25, 1 L.. R. A. (N. S.) 461 (1905), where the court says: "The true rule is that upon an insuf- ficiency of the personal estate, which is primarily liable to the debts, the spe- cific bequests must abate proportionately, even to the extent of complete destruction, before the devisees, to whom lands have been specifically devised, can be called upon to contribute." The same reasoning would require in such states that residuary personalty be taken before residuary realty, even thongh the gift of the residue of realty be not regarded as a specific devise. See Hamlin v. Mansfield. 88 Me. 131, 33 Atl. 788 (1895). Compare McGlaughlin v. McGlaughlin, 24 Pa. 20 (1854). That general legacies must abate or be post- poned until payment in full is made of demonstrative legacies, see Baptist Female University v. Borden. 132 N. C. 476, 44 S. E. 47, 1007 (1903) ; Gel- hach V. Shively, next post. On order of abatement as between demonstrative legacies and specific legacies and devises, see 4 L. R. A. (N. S.) 922, note. On demonstrative legacies, see 4 Prob. Rep. Ann. 687, note. The English rule is stated by Jarman as follows: "The order of the applica- tion of the several funds liable to the payment of debts, then, is as follows: (1) The general personal estate not expressly or by implication exempted. (2) Lands expressly devised to pay debts, whether the inheritance or a term carved out of it be so limited. (3) Estates which descend to the heir, whether acquired before or after the making of the will. (4) General pecuniary leg- acies pro rata. (5) Real or personal property devised or bequeathed, either to the heir or a stranger, charged with debts, and disposed of, subject to such charge. (6) Specific legacies and real estate devised, whether in terms spe- cific or residuary, are liable to contribute pro rata. (7) Real or personal prop- erty over which the testator has a general power of appointment, and which 662 PROBATE AND ADMINISTRATION. (Part 3 which parts he gave to his wife absolutely, and the other two-thirds he gave to his two children in equal parts, in trust for life, with remain- der to their children. The estate of the father of the testator was settled after the death of George, and the proceeds of that estate, both real and personal, (with the exception of some railroad stock, distributed in the lifetime of George,) were distributed, and the portion thereof distributed as George's share was paid over in equal parts to Joseph Gelbach and Elizabeth Shively, on account of the legacies to them under their brother's will. The amounts received, however, from the estate of the father, was not equal to the amount mentioned in the bequests to them by the brother ; and they now claim that the balance of such amounts shall be made up from the general personal estate of George, the tes- tator. And whether such claim can be maintained, depends upon the nature and distinctive character of the bequests — whether they are so far of a specific character as to be exclusively dependent for their pay- ment upon the sufficiency of the estate or fund referred to as the source of payment, and out of which the amounts were given, or whether they are of the character denominated demonstrative legacies. Ordinarily, a legacy of a sum of money is a general legacy; but where a particular sum is given, with reference to a particular fund for payment, such legacy is denominated in the law a demonstrative he has appointed by his will." 2 Jarman on Wills (6th Ed.) 1430-1432. See Manning v. Spoouer, 3 Ves. Jr. 114 (1796). But in Maitland's Equity and the Forms of Action at Common Law. 208, Jarman's No. (5) is placed before his No. (4). Maitland says: "Doubt was oc- casioned by the case of In re Bate, 43 Ch. D. 600, as to which ought to go first, realty charged with the payment of debts or a pecuniary legacy. Kay, J., held that the pecuniary legacy must go first, but, semble, wrongly ; and in the later cases of In re Salt, [1895] 2 Ch. 203, and In re Roberts, [1902] 2 Ch. 834, it was decided that where a will contains a general direction for payment of debts the pecuniary legatees are entitled to have the assets marshaled against specific devisees of the real estate. Then note that a lapsed share of residue is not applicable before other shares. I give all my personalty to A., B. and C. in equal shares. (A., B. and C. are not descendants of mine. Those of you who have read the Wills Act [1837, § 33] will know why I make this remark.) A. dies during my lifetime, so his share lapses to my next of kin. The three shares must contribute equally to the payment of my debts. You are not to throw the debts on to the lapsed share for the benefit of the other shares. Threthewy v. Helyar, 4 Ch. D. 53." In French v. Vradenburg's Ex'rs, 105 Va. 16, 52 S. B. 695, 3 L. R. A. (N, S.) 898, 11.") Am. St. Rep. 838 (1900), also, .Jarman's classes (4) and (5) are transpos- ed. Then follows: "(0) Specific legacies; (7) real estate devised by the will." In that state, "when legacies are to be used to pay debts, the first liable is the residuary legacy (2 Lomax on Executors, 126), and the next are the general pecuniary legacies, then the specific legacies, and lastly the real estate devised by the will." Fauntloroy. J., in Edmunds' Adm'r v. Scott, 78 Va. 720, 729 (1S84). In In re Martin, 25 R. I. 1, 54 Atl. 589 (1903), the court sets apart: (1) The general or residuary estate ; (2) general legacies and general devises ; (3) specific legacies and specific devises not subjected to a testamentary charge of debts. On the personal liability of devisees for charges imposed by the will, see 129 Am. St. Rep. 1056, note. On when legacies are charged on land, see 12 Vrol). Rep. Ann. .'',09, note, and Fries v. Osborn, 190 N. Y. 35, 82 N. E. 716, 19 L. R, A. (N. S.) 457 (1907). Qh_ 4) PAYMENT OF LEGACIES AND SHABES. 663 legacy; and such legacy is so far general, and differs so materially in effect from one properly specific, that if the fund be called m or fail, or prove to be insufficient, the legatee will not be deprived of his leg- acy, but he will be permitted to receive it out of the general assets of the 'estate. Dugan v. Hollins, 11 Md. 77. But such legacy is so far specific that it will not be liable to abate with general legacies, upon a deficiency of assets, except to the extent that it is to be treated as a general legacy, afer the application of the fund designated for its pay- ment. MulUns V. Smith, 1 Drew. & Sm. 204; 2 Wm's Ex'rs, 995. The authorities seem to be clear in holding that whether a legacy is to be treated as a demonstrative legacy, or as one dependent exclu- sively upon a particular fund for payment, is a question of construc- tion, to be determined according to what may appear to have been the general intention of the testator. Creed v. Creed, 11 CI. & Finl. 5J)9. For although the personal estate of the testator is the primary fund for the payment of legacies generally, particular legacies may be so provided for as to be charged upon a particular fund or estate exclu- sively. As was said by the Lord Chancellor, in Saville v. Blacket, 1 P. Wms. 779, "it is possible for a legacy to be charged in such manner upon a certain fund, as that upon its failing, the legacy shall be lost." Here, the bequest is of a $1,000 out of the testator's share or portion of his father's estate. Does this amount to anything more than a tes- tamentary assignment or, relinquishment of the testator's interest in his father's estate, to the extent of the legacies mentioned, in favor of his brother and sister, if his interest should prove to be of that amount? The language of the bequests would seem clearly to negative the idea that the testator intended that any portion of these legacies should be paid out of his general personal estate (apart from that acquired from his father) ; and he manifestly supposed that his share in his father's estate would be sufficient to pay the amounts mentioned by him. The amount necessary to pay the balance of these legacies, if they are to be paid out of the general personal estate of the testator, would have to be raised out of the portions given to the testator's wife and chil- dren ; and we are clearly of opinion that such result would contravene the intention of the testator, as manifested in the general scheme of the will, and by the terms of the bequests themselves. It is certainly true, as a general proposition, as was said by the Vice Chancellor in Dicken v. Edwards, 4 Hare, 276, that where a testator bequeaths a sum of money in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be held to be controlled merely by a direction in the will that the money is to be raised in a particular way, or out of a particular fund. But where the legacy is so specific and so co.inected with the fund appointed for its payment as to give rise to the inference that the legacy would not have been given but for the fund as a means of payment, there the legacy will fail with the failure of the fund. Mann v. Copland, 2 Madd. 223, 226; Dicken 664 PROBATE AND ADMINISTRATION. (Part 3 « V. Edwards, 4 Hare, 276 ; Creed v. Creed, 11 CI & Fin. 509. vSee, also, Hancox v. Abbey, 11 Ves. 179. In our opinion it is clear, that the legacies given to the brother and sister are not general legacies in the sense that they are, to any extent, payable out of the general personal estate of the testator, apart from the fund out of which they were made payable; and that, to the ex- tent of the deficiency of that fund to pay such legacies in full, they must fail. It follows that the decree of the 38th of March, 1887, requiring the balance supposed to be due on the two legacies mentioned to be paid out of the general assets of the estate, must be reversed, and the cause be remanded. Decree reversed, and cause remanded.^* HAYS V. JACKSON. (Supreme Judicial Court of Massachusetts, 1809. 6 Mass. 149.) The petitioners alleged, and proved by the requisite documents from the probate office, that the personal estate of the testator was insuffi- cient, by the sum of $66,000, for the payment of his just debts and legacies, and thereupon prayed that they might be licensed to convey so much of the real estate, of which he died seised, as should be suffi- •:ient to pay these debts and legacies, with the charges of sale. Upon notice ordered, the heirs at law appeared, and sundry ques- tions arose, all of which are discussed in the following opinion of the court, which was delivered by Parsons, C. J. Henry Jackson made his last will on the 13th of January, 1805, in which he makes the following dispositions of his estate : First. After all his just debts and funeral charges are paid, he gives to such of his nephews and nieces as may survive him, fifty dollars each. Also he gives to his sister Susanna Gray, in fee, certain specific real estate, on condition that she does not demand against his estate her portion of her father's estate remaining in his hands ; and his ex- ecutors are to hold the real estate, thus devised her, upon the same trusts as he held her said portion. Also, he gives to Mrs. Hepzibah C. Swan, in fee, all the remaining part of his estate, real and personal, of which he might die seised, or which might afterwards descend to him, by gift, grant, as heir at law, or otherwise, to be held in trust by his executors, for her sole use and disposal. i« See Byrne v. Hume, 84 Mich. 185, 47 N. W. 679 (1«90); Id., 86 Mich. 546, 49 N. W. 576 (1891). On the order of ahatenient to pay debts as between demonstrative legacies and specific legacies or devises, see 4 L. R, A. (N. S.) 922, note. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 665 And he appoints Jiidah Hays and Elisha Sigourney, his executors. Mrs. Swan, the residuary legatee, and also the heirs at law, are before us. The testator was seised of other real estate than that specifically devised to Mrs. Gray, when he made his will; and he afterwards acquired other real estate, which, on his death, without a republication of his will, descended to his heirs. It appears that the personal estate, left by the deceased, is insuffi- cient to pay all his debts. The heirs contend that the lands, which would pass by the residuary devise to Mrs. Swan, shall first be applied to the payment of the debts, before the descended lands can be called for. On the other side, Mrs. Swan and the executors, who are her trustees, insist that the descended lands are first to be appropriated to the payment of the debts. Whether we are authorized, on this petition, to marshal the assets, and if we are, in what manner they are to be marshaled, are the ques- tions before the court. The case may at first be considered as at common law, and accord- ing to the equitable rules established for marshaling assets, where there is a will. At common law, the lands of a testator are not assets, in the hands of the heirs, for the payment of any but specialty debts, where the heir is expressly bound by the contract. And his lands are not bound for the payment of any of his debts in the hands of a devisee, unless charged by the testator, either generally or specially, in his will. To prevent the injustice of the testator in devising his lands without charging them with the payment of his debts, the statute of 3 & 4 W. & M. c. 14, was passed, by which the lands in the hands of a devisee are made assets for the payment of debts due on specialties. Since that statute, all the lands of the testator, whether they descend or are devised, are charged by law with the payment of creditors by specialty, who may also resort to the personal estate. But creditors by simple contract can avail themselves only of the personal estate, and of such of the lands as are charged in the will with the payment of debts; unless when they take the place of creditors by specialty, who have been paid out of the personal estate. These rights of the creditors remain uncontrolled by any provisions which a testator can make. But as between legatees and devisees who claim under the will, and the heirs who can take only what the testator has not given away, he may regulate the funds, out of which his debts shall be paid, by which regulations they will be bound. And the general rule in equity for marshaling assets is thus settled : (1) The personal estate, excepting specific bequests, or such of it as is exempted from the payment of debts. (2) The real estate which is appropriated in the will as a fund for the payment. (3) The de- scended estate, whether the testator was seised of it when the will was 666 PROBATE AND ADMINISTRATION. (Part ^ made, or it was afterwards acquired. (4) The rents and profits of it, received by tlie heir after the testator's death. And (5) the lands specifically 'devised, although they may be generally charged with the payment of the debts, but not specially appropriated for that purpose. And this rule is executed by a decree in chancery, according to the rights of the parties respectively interested. The laws of this commonwealth, applicable to this subject, may next be considered. And here all the personal estate of the testator, and all the real estate, of which he died seised, whether devised or not, are assets for the payment of all his debts, whether due by simple contract or by specialty. Also by St. 1783, c. 24, § 10, all estate, real or personal, undevised in any will, shall be distributed as if it were intestate, and the executor shall administer upon it as such. A question has been made, whether the executor must take out ad- ministration on such undevised estate, or whether he shall adminis- ter it, ex officio, as executor. The usage has been to administer it without a letter of administration ; and we are satisfied that this usage is correct. There can be no benefit to any person, from having two accounts opened by the executor in the probate office ; and the natural construction of this section supports the usage. For the executor, by the probate of the will, has the administration of the testate estate, according to the will, and on undevised estate he is also directed to ad- minister agreeably to the provisions respecting intestate estate. According to the strict rules of law, there can be no undevised per- sonal estate in a will, where an executor is appointed; for he has all the personal estate, whether acquired before or after the will, in trust, first, to pay the debts, and. then the legacies, and if any remained, it was his own, unless the testator, by his provision for the executor, had excluded him from it, in which case he was trustee of the re- mainder for the next of kin. As questions frequently arose, whether the executor was excluded from the residue or not, the section of the statute above cited removed all doubt; and the executor is now, in all cases, trustee of the undis- posed residue for the next of kin. As to the distribution of undevised lands, this section is merely affirmative of the common law, which gives to the heir all undevised estate. But by the obligation imposed on the executor to administer it as intestate estate, it becomes assets in his hands for the payment of the testator's debts ; and it may be sold by the executor, on license for that purpose, or a creditor may take it in execution. There is another provision, applicable to this subject, in the eight- eenth section of this statute, where it is enacted, that whenever a- tes- tator in his will shall give any chattels or real estate to any person or persons, and the same shall be applied to satisfy the debts of the testator, all the other legatees, devisees, or heirs, shall refund their proportionable part of such loss, and contribution may be compelled by suit. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 667 From this view of our statute provisions, it is manifest that a tes- tator cannot, by any dispositions in his will, affect the rights of cred- itors, who may, if their debts are not discharged, enforce satisfaction by the levy of their executions on any estate, which was the testator's at his decease; the whole of it being assets in the hands of the ex- ecutor. But it is also manifest that the testator may bind, by his dis- positions, his legatees, devisees, and heirs. Hence result the right and duty of the court, in the due exercise of its jurisdiction, so to marshal the assets, that as little interruption be given to the interests of the claimants under the will, and of the heirs, as may consist with the more perfect rights of creditors. This can be done only by a designation in the license of the estate, which the executor may sell for the payment of debts. And when the testator, or the law, has appropriated an adequate fund for the payment of the debts, it would be unreasonable for the court to permit that fund to lie by, and to license an executor to sell a specific devise, and thus drive the specific devisee to his action at law, for relief out of the appropriate fund. In what manner the assets are in this case to be marshaled, is the next question. And in our opinion, the rule established in equity, in cases where all the debts are due by specialty, is applicable in this case, except as it relates to the rents and profits of the descended es- tate, received after the testator's death, which we cannot come at. For in those cases, the whole estate, personal and real, as well the de- vised as the descended lands, are assets for the payment of all the debts. So here the whole estate of Jackson, the testator, including the descended real estate, is assets for the payment of all his debts, in the hands of his executors. And in both cases the charge on the es- tate is by operation of law. In this will there is no specific bequest of any chattel, and no exemp- tion of any part of the personal estate from the payment of debts. Therefore the whole of the personal estate, after the payment of the expenses of the last sickness, funeral charges, and of the debts due to the government (if any), is first to be applied to discharge the debts. It is also very clear, that the devise of lands to Susanna Gray is a spe- cific devise, not liable, by the terms of it, to any deduction. The de- scended estate must then be applied to the payment of the debts, before the specific devise can be resorted to. And the same rule must apply to the lands which Mrs. Swan can claim as residuary legatee, if the devise of those lands can be considered as specific within the intention of the rule. Jackson first provides that his debts and funeral charges be paid. He next bequeaths legacies to his nephews and nieces, and makes a specific devise to his sister, Susanna Gray. Then he gives to Mrs. S\^an, in fee, all the remaining part of his estate, real and personal ; the just construction of which is, "when my debts and fimeral charges, and the legacies, are paid, and the specific devise to my sister is de- 668 PROBATE AND ADMINISTRATION. (Part 3 ducted, then what remains, whether real or personal, I devise in fee to Mrs. Swan." If nothing should remain, then nothing is devised to her. We cannot therefore consider this devise of the remainder as spe- cific. It is rather creating a fund for the payment of the debts and legacies, with a devise of what remains, if any, to the residuary dev- isee. If, after the personal estate was exhausted by the debts, the un- satisfied creditors should levy their executi^s on all the devised lands, excepting those specifically devised to Mrs. Gray, Mrs. Swan could not compel contribution by Mrs. Gray and the heirs, under the stat- ute, because a general residuary legatee cannot have contribution, if nothing remains. For in that case nothing is given to him, but on a contingency that some estate may remain; and if no estate shall re- main, then nothing devised to him is taken from him, to satisfy a creditor of the testator. The debts and legacies, being first to be paid, are to be considered as a deduction from the property contemplated to be given; and if, after the deduction, there is no remainder, the contemplated bounty has wholly failed, there being, in fact, no object on which it could operate. Thus, when the testator, after mortgaging lands, devised them, with a clause, that the devisee pay off the mortgage, he can resort to no other part of the estate for relief ; but the money secured is considered as a deduction from the property devised. But the case of King v. King et al., 3 P. Wms. 358, is in point. There the testator, being seised of freehold lands, and of a copyhold, which last he had mort- gaged, devised the copyhold to his nephew ; and after all his debts were paid, he devised the rest of his estate, real and personal, to his son, who was his heir. And it was holden that the import of this devise was, that until all the debts were paid, nothing was devised to the son; or that when the debts should be paid, then, and then only, he should be entitled to the residue. We cannot, therefore, consider this residuary devise to Mrs. Swan as specific, within the rule of mar- shaling assets, so that the descended lands shall first be sold. It has been argued by the counsel for the petitioners, admitting the rule to be generally correct, yet that in this case it ought not to apply, because in the residuary devise the testator gives, not only all his real and personal estate, of which he was then seised and possessed, but all of which he might afterwards die seised; and, therefore, that he contemplated after-acquired estate, which, although it could not pass by his will, yet was evidently intended to pass; and that this intent ought to be so far executed as to cause it to be sold for the payment of debts, before the residuary devise should be applied for that pur- pose. This argument, however ingenious, is not solid. For the testator cannot, in his will, charge with the payment of his debts after-pur- chased lands, any more than he can devise them. And if in this case he intended it, the intent was void. And an intent against law cannot Ch. 4) PAYMENT OF LEGACIES AND SHARES. 669' affect this rule or principle of law. Otherwise the rights ot the heirs would be implicated by a testamentary disposition, made before the lands were acquired by the testator. If this case should be allowed as an exception, it would involve most residuary devises ; for it is com- mon for the scrivener to include expressly all the residue of the estate, of which the testator may die seised or possessed. We think, there- fore, that the rule should be applied in this case, without admitting the exception. The order of the court was entered as follows: Ordered that the said executors be, and they hereby are empowered and licensed to raise the sum of $ by sale at public auction of the houses, lands, or tenements, of which the said Henry Jackson died seised in fee, being devised by him by his last will and testament, excepting such part thereof as is therein devised in trust for his sister, Susanna Gray, and such as may have been held by said Jackson to the use of, or in trust for, any other person or persons, the said sum, when raised, to be applied to the payment of the debts aforesaid, with the incidental charges of sale; and if the said sum cannot be raised by such sale, it is further ordered, that the said executors may raise by sale at public auction of so much of the real estate of which the said Jackson died seised, not having devised the same in and by his last will and testament, such further sum of money, as with the money raised by the sale first above ordered, will amount, in the whole, to the said sum of $ to be applied as aforesaid, giving bond, etc. BIEDERMAN v. SEYMOUR. (High Court of Chancery, 1841. 3 Beav. 368.) See ante, p. 467, for a report of the case. LANCEFIELD v. IGGULDEN. (Court of Appeal in Chancery, 1874. L. R. 10 Ch. App. 136.) The personal estate having been found insufficient for payment of the testator's debts, two questions were argued when the cause came on for further consideration. The first was whether specifically de- vised estates were liable to contribute ratably with the residuary real estate to meet the deficiency of the personal estate. The Vice Chancellor (Law Rep. 17 Eq. 556) held that the specifically devised estates were not liable to contribute till the real estate com- prised in the residuary devise had been exhausted. From this deci- sion the defendants appealed. Lord Cairns, L. C.^* Independently of the state of the law before 14 The statement of facts is abbreviated, and part of the opinion of Lord Oaims and the concurring opinion of Sir W. M. James, U J., are omitted. 670 PROBATA AND ADMINISTRATION. (Part 3 the Wills Act, independently of the Wills Act, and independently of the construction of this particular will, I should have thought that in all cases there would have been a very strong presumption of an in- tention on the part of the testator of this kind; that if a man be- queaths a specific portion of personalty to one person and the residue to another person; and if he devises Whiteacre to one person and Blackacre to another, and the residue of his real estate to a third, a different conclusion would be arrived at as to his intention with re- spect to the payment of his debts in the second case to that which would be arrived at in the first case ; because it appears to me that, from the well-known habits of mankind, as every one expects to owe some debts at his death, and expects that his personal estate will be the primary fund for payment of his debts, a man who gives a specific legacy to one person and the residue to another may well suppose that the usual rule of law will apply, and that his debts will be paid out of the residue ; but that as to the real estate, there being little expectation that the real estate would be resorted to for payment of debts, a man who devises Blackacre to one person and Whiteacre to another, and the residue to a third, may well be supposed to do so under the belief that he was not only benefiting the specific devisees to the extent of the estates devised to them, but also the residuary devisee to the ex- tent of the residue given to him. But when I look at this particular will, there appear to me well marked reasons for supposing that this view is in accordance with the testator's intention. For the testator having three sisters mar- ried and one unmarried, he portions out his real estate among them by giving specific devises to the married sisters and their families, and the residuary real estate to the unmarried sister, and then gives the residue of his personal estate, after payment thereout of his funeral and testamentary expenses and debts, to the same sister. It is impos- sible not to see that whether the rule of law was present to the tes- tator's mind or not, he anticipated that the residue of the personalty - would be the fund out of which the debts would be paid. So far, therefore, as this particular will is concerned, there is nothing to lead us to the conclusion that the residuary real estate was intended to be liable to the debts in preference to the specifically devised estates. Then as to the question of law. Before the Wills Act the rule of law was as well settled as any rule of the court, that a residuary de- vise of real estate was treated as specific, and although the items were not specified, it was considered quite as much specific as if they had been specified. The result of this general rule of law was, that after-acquired real estate would not pass under a general devise. Then the Wills Act stepped in. It was competent for the Legisla- ture to have said that real estate should be treated like personal estate for all intents and purposes ; but this was not done. The provisions of the act were most carefully framed, not by way of altering phil- osophically the general rules of law, but by taking each particular evil Ch. 4) PAYMENT OF LEGACIES AND SHARES. G71 intended to be cured, and dealing with it separately by particular enactments. The Legislature had to deal with the question of a will passing after-acquired property, and it has dealt with it by the twenty- fourth section. That section enacts that "every will shall be con- strued 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 ap- pear by the will." The effect of that is, as Lord Westbury on one occasion expressed it, that the Legislature attributed to the will a continuing operation as if the devise were repeated every moment until the testator's death ; so that as to all the property it must be taken as if he made it the moment before his death. If we realize this hypothesis of the Legis- lature, the result is that this residuary devise must be taken as having been made the moment before the testator's death, but as a devise specific in its nature. There is nothing in the Act to alter the well- settled rule of law as to the effect of a residuary devise when you know the time at which it was made, namely, that for the purpose of payment of debts it is to rank pari passu with the specific devises. Then with regard to the state of the authorities, * * * j fggj bound to say that * * * Hensman v. Fryer, Law Rep. 3 Ch. 420, decided by Lord Chelmsford, * * * was a distinct expres- sion of opinion by the judge who was then the head of this court, that the Wills Act had made no alteration in the law in this respect. Therefore, both on principle and authority, I feel bound to come to a different conclusion from the Vice Chancellor in this case, and his decree must be altered accordingly.^^ * * * MORISEY V. BROWN et al. (Supreme Court of North Carolina, 1907. 144 N. C. 154, 56 S. E. 704.) Connor, J.* The principles controlling the decision of this case are simple and well settled. "The real estate of the testator specific- ally devised is never charged with the payment of legacies, unless either the intention to charge pecuniary legacies upon it is expressly 15 See Rice v. Rice (Iowa) 119 N. W, 714 (1909). But see Kelly v. Richard- son, 100 Ala. 584, at page 598, 13 South. 785, at page 791 (1892), where the court adopted the doctrine that "in so far as wills pass real property acquired after [their] execution, the devises are general and not specific unless such after-acquired property is so described as to admit of its identification by the devisees." See Floyd v. Floyd. 29 S. C. 102, 7 S. E. 42 (18SS). In Hensman v. Fryer, L. R. 3 Ch. App. 420 (1867), It was held that pecuniary legatees and the residuary devisee were liable to contribute ratably to the payment of debts ; but that case has not been followed in England. Residuary devises are there treated as specific, and pecuniary legacies must be taken for debts before specific devises not charged with the payment of debts. Collins V. Lewis, L. R. 8 Eq. 708 (1869); Tomkins v. Colthurst, L. R. 1 Ch. D. 626 (1875) ; Farquharson v. Fleyer, 3 Ch. D. 109 (1876). • The statement of facts is omitted. €72 PROBATE AND ADMINISTRATION. (Part 3 declared or is to be necessarily implied from the context of the will, or from the facts and circumstances of the case. The presumption as between the specific devisee and pecuniary legatee is that the tes- tator intends the money legally to be paid first out of the personal property, and next out of the real estate which is included in the resi- due." 2 Underbill on Wills, 396. This is also the rule in regard to debts. Bapt. University v. Borden, 132 N. C. 476, 44 S. E. 47, 1007.^« The appellant, conceding this to be the law, insists that the devise of "all the residue of my lands in Sampson county" is a residuary devise. We do not concur in that view. If the word "residue" stood alone, the construction contended for would be correct; but it is lim- ited by the words "in Sampson county." Item 6 of the will gives to other persons "the balance of my real estate in and around War- saw in Duplin county." These words, in our opinion, make the de- vise specific as confined to the lands in "Sampson county" ; thus leav- ing undisposed of any lands the testator may have had in other coun- ties. Whether he had land in other counties does not appear, either from the will or the pleadings. There is nothing in the will to in- dicate that he knew or believed that his personal estate would not be sufficient to pay the pecuniary legacy, or that he intended his land to be subjected to the payment of them. Following the well-settled rule that such intention must appear ei- ther in express terms or by at least reasonable implication, we cannot charge the legacies upon the land. They must be paid ratably out of the balance in the hands of the executor from the proceeds of the personalty. Such being his honor's opinion, the judgment must be affirmed.^^ 16 "The general rule of law as to pecuniary legacies (in the absence of any sufficient indication of a contrary intention) is that they are payable by the legal personal representatives of the testator (in whom the whole personal estate vests by law) out of the personal estate not specifically bequeathed. The presumption is that the testator intends them to be so paid. Unless charged upon it by the will, they are not payable out of the real estate. The princi- ple of the exemption of personal estate specifically bequeathed is that it is necessary to give effect to the intention apparent by the gift. If the bequest is of a particular chattel, such as a horse or ship, it is manifest that the testator intended the thing to pass unconditionally, and in statu quo, to the legatee; which could not be if it were subject to the payment of funeral and testamentary expenses, debts, and pecuniary legacies. As against creditors, the testator cannot wholly release it from liability for his debts; but, as against all persons taking benefits under his will, he may. The same principle applies to everything which a testator, identifying it by a sufficient descrip- tion, and manifesting an intention that it should be enjoyed or taken in the state and condition indicated by that description, separates, in favor of a particular legatee, from the general mass of his personal estate, — the fund out of which pecuniary legacies are, in the ordinary course, payable." Lord Chancellor Selborne, in Robertson v. Broadbent, L. R. 8 App. Cas. 812, 815 (1883). 17 In r.ediger v. Canfleld, 78 App. Div. 596, 79 N. Y. Supp. 758 (1903), the testator's direction that his mother's debts be paid out of "my estate" was held not to charge those debts on his real estate. Ch. 4) PAYMENT OF LBGACIB3S AND SHARES. 673 GREVILLE V. BROWNE. (House of Lords, 1859. 7 H. L. C. 689.) This was an appeal against a decision of the Lord Chancellor and Lord Justice Blackburne, sitting as Commissioners of Appeal, from the judgment of the Encumbered Estates Court. John Browne, of Galway, had one son, Michael J, Browne, and two daughters, Maria (Lady Ffrench) and the respondent. By his will (which contained many interlineations), dated 20th January, 1825, he bequeathed to his wife an annuity of ilOO in addition to what she was entitled to under her marriage settlement, "the same to be in lieu and satisfaction of any dower or thirds she may be entitled to out of my real estates, or any other property I may die possessed of," with the usual power of distress. Then followed a bequest of the household furniture to his wife ; then a sum of il,000 in trust, to give such part of it as she might think fit to his daughter Anne on her marriage with her mother's consent, "to bear no interest till then ; the entire (whole) or the remainder of the said sum of il,000 to go and be considered as part of the residue of any property as hereafter bequeathed to my first object on earth, my best of sons, Michael Joseph Browne. I further bequeath to my dear and very dear daughter Anne Browne, in addition to any part of the above-recited sum of £1,000, a further or additional sum of £5,000, sterling, including the property already settled on her by my marriage articles ; and also the value of the property made over for her use before, all payable on her marriage with the consent of her mother, the interest thereof, at five per cent, to be regularly paid till then. But should my said daughter Anne Browne die before her mar- riage, then my will is that this bequest shall be considered as part of the residue of my property, and go and merge in same." To his daughter Lady Ffrench (to whom he had given as a portion £10,000) and to her husband and children, and to his own sister Julia he left £5 apiece, and concluded thus: "As to all the rest, residue, and re- mainder of any property I may die possessed of, or entitled to, of what nature soever, whether estates, freehold leases, leases for years, stocks of every kind, also bills, bonds, notes, annuities, or otherwise, I hereby bequeath, devise, give, and grant the same to my first object on earth, my son, Michael Joseph Browne, in the fullest manner I can or shall have it in my power, with liberty to him to dispose of the same in any manner he may think proper," and he appointed his son his sole exec- utor. By a codicil he appointed John Kirwan his executor in case his son should not wish to act as one of the executors. The testator died in 1825, and his son having declined to act as executor, the will was proved by Kirwan. Michael Joseph Browne, the son, entered into possession of the estates, and paid the interest on the legacy of £5,000 to his sister C0ST.WlLLS^3 g74 PROBATE AND ADMINISTRATION. (Pait 3 down to 18-12. On the 1st September, 1846, he mortgaged the estates vo the appellant and other persons. On the 29th May, 1852, a petition for sale was presented in the Encumbered Estates Court, and an abso< lute order for sale was made on the 8th September, 1852. On the 4th December, 1855, the estates were sold for a sum of £69,410, a sum not sufficient to pay off the mortgages and interest then due. On the settling of the final schedule on the 15th December, 1856, Mr. Commissioner Longfield held that the respondent, Anne Browne, was entitled to be paid the legacies bequeathed to her by the will of her father in priority to the mortgagees. The full court confirmed this decision, and on appeal to the Lord Chancellor and Lord Justice Blackburne in the Court of Appeal, it was again affirmed. The pres- ent appeal was then brought. The Lord Chancellor (Lord Campbell.) '* My Lords, in this case I am of opinion that the decision of Mr. Commissioner Longfield and J\Ir. Commissioner Hargrave, confirm.ed by the Lord Chancellor of Ireland and the Lord Justice of Appeal in Ireland, is right ; and I think that if your Lordships were to come to a contrary conclusion, you would disturb the well-settled and useful rules of property which have prevailed for a century and a half. My Lords, the first question is whether these legacies are a charge upon the real estate. If it were res Integra, and we had to construe this will by the .language employed, without any reference to the con- struction which has been put upon similar language in other wills, I might allow that there is great force in the very able and ingenious argument we have had from the bar. It might then be contended that the testator had no notion whatever of charging the land with these legacies; but we find that from the time of Lord Macclesfield and Lord Cowper, down to the time of Lord Cottenham and Vice- Chancellor Page Wood, a rule has prevailed upon this subject which has been acted upon uniformly by all judges except Lord Alvanley, a very eminent authority (I do not mean in the slightest degree to dis- parage him), but with that exception by all the judges that have deter- mined such cases. For nearly a century and a half this rule has been laid down and acted upon, that if there is a general gift of legacies, and then the testator gives the rest and residue of his property, real and personal, the legacies are to come out of the realty. It is consid- ered that the whole is one mass ; that part of that mass is represented by legacies, and that what is afterwards given, is given minus what has been before given, and therefore given subject to the prior gift. That seems to me to be the view which was taken in the cases before Lord Cowper and Lord Macclesfield. The language in which it is expressed varies from time to time, but still that rule seems to have been uniformly acted upon, and I would say, in the language used by 18 The opinions of Lord Brougham, Lord Cranworth, Lord Wensleydale, and Lord Kincsdown are omitted. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 675 Vice Chancellor Page Wood, in the last case upon the subject, Wheel- er V. Howell [3 K. & J. 198], that in the present case "I feel that I should be only introducing a useless and mischievous distinction if I held the legacy not to be a charge, the principle of the decision being in truth the same in the case of legacies as in that of debts." I therefore conceive it to be unnecessary to travel over and criticise that long series of cases which seems to establish that as a general rule which must be acted upon, that the testator, in using this language in his will, must be supposed to use it according to the sense in which the words have uniformly been construed, and to mean that the legacies should be a charge upon the real estate. Here the testator gives the legacies generally, and then he says: "As to all the rest, residue and remainder of any property I may die possessed of, or entitled to, of what nature soever, whether estates freehold, leases, leases for years, stocks of every kind, also bills, bonds, notes, annu- ities or otherwise, I hereby bequeath, devise, give and grant the same to my first object on earth, my son Michael Joseph Browne, in the fullest manner I can." It is quite clear, that here there is first a gen- eral gift of legacies, and then there is a disposition of the rest, residue, and remainder of his property, real and personal, of what nature soever, to his son. Therefore, following the rule which has been so long acted upon, these legacies are clearly charged upon the real estate. Then, my Lords, as to the second point, the discharge. Twenty-one years after the death of the testator, his son mortgaged the land for £50,000; and it is allowed that upon the face of the deed there is no reference whatsoever to those legacies. No part of the legacies was paid ; and I presume, that after he had thus charged the land ^yith the legacies, unless there is some special power in the will enabling the son to sell the land discharged from the legacies, it can hardly be sup- posed that what has taken place can amount to a discharge of the bur- den that was placed upon the land in respect of the legacies. No au- thority has been quoted to show that this power exists. Is there, then, here any such special power? I am of opinion that the words that follow what I have read are mere surplusage; they merely express what would otherwise be implied. This testator is fond of a florid style; he deals in superlatives; he is very rhetorical, and he makes use of a great many more words than would be sufficient to accomplish his purpose. He says: "I hereby devise, bequeath, give and grant the same to my first object on earth, my son, Michael Joseph Browne, in the fullest manner I can or shall have it in my power, with liberty to him to dispose of same in any way he may think proper." We are now considering whether these lands have been discharged of the legacies: We must consider that they are charged with them. Then he, having thus charged the land, did he mean by those words to give his eldest son the power of disposing of the land at any time, so that the younger children would be deprived of the security which he had ^576 PROBATE AND ADMINISTRATION. (Part 3 before provided for them? I think that no such meaning can be educ- ed from the language he employs, and that therefore this mortgage has not the effect of discharging the land of these legacies. My opinion is, that this appeal should be dismissed, and the decree affirmed. Orders appealed from affirmed. Appeal dismissed, with costs.^* In re BANKS. BANKS V. BUSBRIDGE. (Supreme Court of Judicature, Chancery Division. [1905] 1 Cli. 547.) Buckley, J.* The personal estate is primarily Hable for the pay- ment of debts and funeral and testamentary expenses ; but the testa- tor may exonerate it, either by express words or by an indication of intention to be found in the will which leads to the court being judi- cially satisfied that it was the testator's intention to exonerate it. It is not enough that he charges his real estate with the payment of debts. It is necessary to find, not that the real estate is charged, but that the personal estate is discharged. This need not be done by ex- press words, but there must be found in the will plain intention or necessary implication to operate exoneration.f This testator gives his personal estate to Keziah Ann Banks. He specifically devises certain real estate, and, subject to that devise, devises all his real estate to his trustees "subject to the payment of my just debts and funeral and tes- tamentary expenses." 18 "The court below rightly held that the blending of the real and personal estate in the residuary clause bound the real estate for the payment of the legacies by implication, since 'the residue and remainder' can only be ascer- tained after the payment of the* debts, legacies and expenses. This has been uniformly held in this state." Williams, J., in Sloan's Appeal, Watt's Estate, 168 Pa. 422, 32 Atl. 42 (1895). "The effect of placing realty with the residue was to subject It to the gen- eral rule governing residuary estates." Dubois, J., in Tyler v. Tallman, 29 R. I. 57, 68 Atl. 948 (1908). Also, Simonsen v. Hutchinson, 231 111. 508, 83 N. E. 183 (1907). But see Brill v. Wright, 112 N. Y. 129, 19 N. E. 628. 8 Am. St Rep. 717 (1889) ; Pearson v. Wartman, 80 Md. 528, 31 Atl. 446 (1895). "The general rule Is that, after certain legacies are given without any ex- press provision of means of payment, a residuary gift blending the real and personal property of the testator creates a charge of the legacies upon the entire estate. * • ♦ A court of equity can not only decree the legacy to be a charge upon the real estate, if the will can be so construed, but with its elastic procedure it can also provide the method of securing the same, and designate the particular real estate which shall in the first instance be reached, because the equitable rights of the present holders may vary." Cornish, J., in Walker v. Follett's Estate, 105 IMe. 201, 73 Atl. 1092, 1094 (1909). "It Is esta"blished that the rule of Greville v. Browne, 7 H. L. C. 689, applies BO as to render legacies payable out of a mixed fund, whether the legacies are given before or after the gift of residue. See Elliott v. Dearsley, 16 Ch. D. 322. 329 ; In re Grainger, [19001 2 Ch. 756, 707, [1902] A. C. 1." Swinfen Bady, J., In In re Balls, [1909] 1 Ch. 791, 795. ♦ The statement of facts Is omitted. + The .^anie thin.:,' is tnio ;is tf) charging legacies on land. Reid T. Oorrigan, 143 111. 402, 32 N. B. 387 (1892). Ch. 4) PAYMENT OF LEGACIES AND SHARES. 6'7'i^ The argument addressed to me has been, that because the personal estate, that is to say, the whole personal estate, is given to Keziah Ann Banks, I ought to find in that fact an expression of intention that the personal estate shall not bear the debts subject to which the real estate is afterwards devised. I am unable from that fact to find that inten- tion. There is an indication to the contrary at the end of the will- namely, that the testator desires that none of his real estate be sold whilst male descendants of the name of Banks are living. In Brum- mel V. Prothero (1796) 3 Ves. Ill, 114, the Master of the Rolls, Sir Richard Pepper Arden, says: "This" case "is stripped of every cir- cumstance except that of a devise to a trustee for payment of debts and a general bequest of the personal estate to the executor. There is no one case since French v. Chichester (1707) 3 Bro. P. C. 16 (2d Ed.), the first upon the subject, in which such words as these have been alone sufficient to exempt the personal estate. It has oyer and over again been decided that such words are not sufficient to raise such a demonstration as Lord Thurlow says, in Duke of Ancaster v. Mayer, 1 Bro. C. C. 454, is necessary." The personal estate was there held not to be exonerated, and that notwithstanding that there was in that case, not as here a mere charge of debts, but a trust to pay the debts. The present case diflfers in the fact that Keziah Ann Banks is not here the executor; but this does not, I think, differentiate the case. A gift to A. is none the less a beneficial gift because A. is also ap- pointed executor. In Haslewood v. Pope (1734) 3 P. Wms. 322, there was a devise of real estate to trustees upon trust to sell so much as would raise money to discharge all the debts the testator should owe at his death, and a gift of all the personal estate to the testator's daughter, whom he made sole executrix. Lord Talbot, L. C, held that the personal estate was not exonerated. I agree that there was a spe- cial reason upon which also he founded himself, namely, that the same person was donee of the personal estate and also devisee of the sur- plus of the real estate in tail. The passage in Mr. Theobald's book on Wills (6th Ed., at the top of page 802) is not, I think, borne out by the cases which he cites. There was in those cases, not, as would seem to be there implied, a mere charge of debts on the real estate (which is the case in the will before me), but a trust to sell the real estate and thereout pay the debts. There is nothing more here than a devise of the real estate subject to the debts. In my judgment the personal estate is not exonerated, and the real estate is only charged in aid of the personal estate.* * While a general direction to pay legacies out of a mixed fund of residue charges them ratably on the portions attributable to realty and personalty (In re Spencer Cooper, Poe v. Spencer Cooper, [1908] 1 Ch. 130), the charge im- plied from blending the residue in one mass has been held In England to leave the legacies payable primarily out of the personalty and to allow the realty to be resorted to only in aid of the personalty if that is insxiflacient. In re Boards. Knight v. Knight, [1895] 1 Ch. 499. 678 PROBATE AND ADMINISTRATION. (Part 3 LACEY V. COLLINS. (Supreme Court of Iowa, 1907. 134 Iowa, 583, 112 N. W. 101.) The will of John L. Collins, with a codicil attached, was admitted to probate March 29, 1904, and, in so far as material to this controversy, was in words following: "First, I desire that all my just debts be paid including my funeral expenses. "Second. I bequeath and devise to my daughter, Margaret M. Col- lins (legally adopted by my wife and myself, her former name being Rebecca Crilley), all the remainder of my property of every kind, both personal and real, to have and to hold and do with as may seem best by her, and she shall be my sole legatee. "Third. I desire, and do hereby nominate and appoint E. R. Lacey as my executor of this my last will and testament, and to give such bond as the court may direct. "Fourth. I desire that the Independent Order of Odd Fellows of Columbus Junction, Iowa, shall take charge of my remains and direct the funeral services. "Fifth. I desire that a suitable tombstone to be placed at the grave of myself and wife, not to exceed the sum of one hundred dollars each, and on my monument I desire to have the Emblem of the I. O. O. F. and to be similar to that of R. Caldwell's monument in the Columbus City Cemetery. "Codicil. "I, John L. Collins, hereby amend my will heretofore made, by add- ing this as a codicil, to wit : I give and bequeath my sister Ellen Col- lins ($1,000.00) one thousand dollars, to be paid her by my executor, and except for this change, I readopt my former will." E. R. Lacey was duly appointed executor of the estate and in Au- gust, 1905, filed his report, and a few days later applied to the court for an order to sell certain real estate to procure funds out of which to pay the legacy of Ellen Collins. To this Margaret M. Collins, ob- jected, on the ground that real estate is not liable, under the terms of the will, for the payment of the legacy. On hearing the sale was or- dered as prayed. Margaret M. Collins appeals. Affirmed. Ladd, J. The sole question for determination is whether the legacy to Ellen Collins is payable out of the real estate of deceased. The personal property left by him was inadequate to meet the indebtedness of the estate and pay the funeral expenses. The will speaks as of the date of the testator's death, and the codicil is to be construed as part of it. Looking thereto, the intention of the testator appears to have been: (1) That his debts, including funeral expenses, be paid; (2) that tombstones be erected at the graves of himself and wife at a cost not exceeding $200; (3) that $1,000 be paid by his executor to his Ch. 4) PAYMENT OF LEGACIES AND SHARES. 679 sister, Ellen Collins; and (4) that "all the remainder of my property of every kind, both real and personal," pass to his adopted daughter, Margaret M. Collins. The will recites that "she shall be my sole lega- tee" ; but this was modified by the bequest in the codicil to his sister. It will be observed that the disposition of property is not made in the will in the order above indicated, but as the debts, including funeral expenses, the erection of the monuments and the legacy to the sister are to be paid from the estate, and that left to appellant is designated as "all the remainder of my property of every kind, both real and per- sonal." The intention that the adopted daughter shall take the residuary es- ■ tate is manifest. See Kightley v. Kightley, 2 Ves. Jr. 328. No other inference is reasonably to be drawn therefrom. This being so, we have to say whether it was the intention of the testator to charge his entire estate, regardless of its character, with the payment of the legacy to Ellen Collins. The will contains no express provision to this effect, and, unless such intention is to be implied therefrom, the rule must prevail that, even though the personal estate is insufficient, it is not only the primary, but the only fund to which resort may be had for this purpose. Morey v. Morey, 113 Iowa, 152, 84 N. W. 1039 ; Newsom v. Thornton, 82 Ala. 402, 8 South. 261, 60 Am. Rep. 743 ; Montgomery v. McElroy, 3 Watts & S. (Pa.) 370, 38 Am. Dec. 771; See In re Will of Newcomb, 98 Iowa, 175, 67 N. W. 587. But, where such intention is clearly deducible from the language of the will, the realty will be charged with the payment of legacies, not- withstanding the omission to expressly so direct. Morey v. Morey, supra; Greville v. Brown, 7 H. L. 703; Wright v. Page, 10 Wheat. 210, 6 L. Ed. 303; McCampbell v. McCampbell, 5 Eitt. (Ky.) 97, 15 Am. Dec. 48 ; Knotts v. Bailey, 54 Miss. 235, 28 Am. Rep. 348 ; Thur- ber v. Battey, 105 Mich. 718, 63 N. W. 995 ; McQueen v. Lilly, 131 Mo. 9, 31 S. W. 1043; Evans v. Beaumont, 16 Lea (Tenn.) 713; Ar- nold V. Dean, 61 Tex. 249 ; Lee v. Lee, 88 Va. 805, 14 S. E. 534; Van Winkle v. Van Houten, 3 N. J. Eq. 172. And where the legacies are pecuniary and general, and there is a gift of the residue of the estate, both real and personal, and this is blended as one mass, the rule pre- vails that this conclusively manifests an intention to charge the entire residuary estate, both real and personal, therewith. Pitkin v. Peet, 87 Iowa, 268, 54 N. W. 215 ; Sloan's Appeal, 168 Pa. 422, 32 Atl. 42, 47 Am. St. Rep. 889 ; Brill v. Wright, 8 Am. St. Rep. 723, 112 N. Y. 129, 19 N. E. 628; Knotts v. Bailey, supra; Newsom v. Thornton, supra ; Lewis v. Darling, 16 How. 1, 14 L. Ed. 819. See numerous decisions collected in 19 Am. & Eng. Ency. of Law (2d Ed.) 1354 et seq. ; Lee v. Lee, 88 Va. 805, 14 S. E. 534. In the last case, sometimes cited as holding that the rule is different where the bequest is by codicil, the latter provides for payment "out of any money due and belonging to my estate," and this was construed to point out the fund from, which the legacy was to be taken. The ba- 6g0 PROBATE AND ADMINISTRATION. ' (Part 3 sis of the rule is that a mixed fund has been created out of which to pay the legacies. Tidd v. Lister, 3 De G., M. & G. 857 ; Ellis v. Bar- trum, 25 Beav. 110. It is not necessary that words of like import and equivalent in meaning, as in this case, be employed. In re Hawden (1904) 1 Ch. 693; Hart v. Williams, 77 N. C. 436. Guided by these well-established principles, the district court rightly held that the legacy to Ellen Collins was payable out of the realty, and its order directing the sale is approved. Affirmed.^" MOORE V. ALDEN et al. (Supreme Judicial Court of Maine, 1888. 80 Me. 301, 14 Atl. 199, 6 Am. St Rep. 203.) Peters, C. J.** Horatio E. Alden, whose will is presented to be construed by the court, after directing that certain necessary bills be paid, and giving his wife certain property outright, also gives to her an annuity of $1,000 for her life-time, the annuity to be paid from the earnings of his individual and partnership properties ; and he declares that these gifts to his wife are to be in heu of all allowances, dower, and distributive share to which she might be entitled out of his estate. He then grants other annuities, their payment made subject to a prior payment of his wife's annuity, and makes sundry bequests to take effect on the death of his wife. It appears that he died seized of dow- able real estate ; that no child was left by him ; that the widow is now 39 years old ; and that the entire estate reduced to money, now in the hands of the trustee, the administration accounts having been finally settled, amounts to $11,707.61. It is evident enough that the annuity to the widow, to say nothing of the other annuities, cannot be obtained from the income and earn- ings of the estate. And the question of the case is whether she is entitled to receive the amount each year, although it will be necessary to entrench upon the corpus of the estate to supply the deficiency. She correctly claims that the full annuity should be paid to her as long as the estate lasts, upon the rule, which appears to be well estab- lished in the law, that, where a testamentary gift is made by husband to wife, in satisfaction of her waiver of dower in his estate, the gift has a preference over all other unpreferred legacies, and for the rea- son that the estate receives a valuable consideration for such gift. The principle is based upon the idea of contract between husband and wife. He dictates the terms, and she accepts them. The estate gets " But see Lee v. Lee, 88 Va. 805, 14 S. E, 534 (1892), where, also, the leg^ acy wne given In a codicil. That case does not, however, purport to deny the doctrine of Greville v. Browne, ante, p. 073. = iTl)i' statement of facts and the part of the opinion relating to costs are omitted. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 681 her right of dower, and she receives the gift in the will in lieu of dower. This is an old doctrine, originating with Lord Cowper in Burridge V. Bradyl, 1 P. Wms. 127, adopted by Lord Hardwicke in Blower v. Morret, 2 Ves. Sr. 422, which has so extensively prevailed as never to have been dissented from, that we discover, either in the English or American cases. Its application was resisted by' counsel in an early case (Davenhill v. Fletcher, Amb. 244), where the gift to the wife greatly exceeded in amount the value of the dower, the argument be- ing placed on the great inadequacy of consideration; but the point was overruled, the answer to it being that the testator is the only and best judge of the price at which he is desirous to become the purchaser of the wife's right. Rop. Leg. *432. The rule does not, however, apply, if the wife has no right of dower. Her right must be subsisting at the death of the testator. Otherwise she is not a purchaser. In such case she pays no consideration. Id. And the general rule does not prevail if the will clearly discloses that the testator intended that the gifts to his wife should not have a pref- erence over other bequests. The burden will be on the executor to show, from the terms of the will, that a preference is forbidden. The presumption favors the widow's claim. The intention of the testator, as found in the will, is a part of the contract made with the widow, and, if she accepts the provisions of the will, she does so voluntarily, and abides the consequences. The internal evidence of the will, in the present instance, does not repel, but favors, the widow's contention. It discloses that the testa- tor, having no child, had great affection for his wife, providing in dif- ferent ways in his bequests for her protection. The evidence is con- clusive that he believed his estate would easily bear all the burdens placed by him upon it. He must have assumed that the annuity to his wife would be needed by her, to sustain the equipments of house- keeping given her, including the support of horses and carriages pro- vided for her use. He makes the payment of his wife's annuity a prior claim to all other bequests. The very relation of husband and wife creates a strong presumption in her behalf, when we consider that, after the bounties to her are paid, distant relatives, if not strangers, are provided for. We, think that the will, as a whole, though not by express terms, by implication, indicates preference in the devises and bequests to the wife, and struggles to utter it. There is a clause in the will which, if stand- ing alone, might seem to look in a contrary direction, and that is the declaration of the testator that the annuity is to be paid from the earnings of his individual and partnership property. We think the idea of the testator in this clause was that he was enlarging, rather than limiting, the funds out of which t^e annuity might be paid. He devotes for the purpose the earnings of all his properties. He ex- presses no limitation or condition. The gift is unconditional and ab- 682 PROBATE AND ADMINISTRATION. (Part 3 solute, although, as is often the case, he overestimates the sources of supply which were to assure its payment. The sources indicated turn- ing- out to be insufficient, others must be taken to supply the deficiency. It is a demonstrative legacy, not lost because of the nonexistence of the property specially pointed out as a means of satisfying it. A case very like this strongly sustains this conclusion. Smith v. Fellows, 131 Mass. 20. The following additional references may be profitably consulted upon the general questions of the case : Heath v. Dendy, 1 Russ. 543 ; Wells v. Borwick, 17 Ch. Div. 798 ; Potter v. Brown, 11 R. I. 232; McLean v. Robertson, 126 Mass. 537; 3 Rom. Eq. Jur. § 1142, note, and cases; Schouler, Ex'rs, § 490, and cases in note. * * * Bill sustained.** SECTION 3.— THE RETAINER AND REFUNDING OF LEGA- CIES AND DISTRIBUTIVE SHARES ANONYMOUS. (High Court of Chancery, 1718. 1 P. Williams, 495.) In this case (int. al.) it was said by Sir Joseph Jekyll, Master of the Rolls, that as all legatees are on a deficiency of assets to be paid in proportion, so if the executor pays one of the legatees, yet the rest 2 2 See In re Wedmore [1907] 2 Ch. 277; In re Woodbury's Estate, 40 Misc. Rep. 143, 81 N. Y. Supp. 503 (1903). Compare In re Brown, 42 Misc. Rep. 444, 87 N. Y. Supp. 247 (1904). In In re Woodbury's Estate, supra, the court said: "The law is well settled that where a legacy is given in consideration of the relinquishment by the legatee of some subsisting right or interest— as to a creditor in satisfaction of a debt or to a wife in lieu of dower— such legacy is entitled to priority over general legacies, which are mere bounties, for in such cases the legatee stands in the situation of a purchaser and not a mere volunteer. Such is the rule, though the value of the legacy greatly exceeds the value of the rights relinquished." In Faruam v. Bascom, 122 Mass. 282 (1877), the testatrix left no residue and insufficient property to pay the debts and satisfy the specific legacies and devises. It was held that the specific legacies and devises must be charged with the debts in proportion to their respective values, with the sole excep- tion that testatrix's husband, by assenting to the will and relinquishing his right to one-half of the personal property, became a purchaser of the devise of a life estate to him ; hence that life estate could be resorted to only after the other devises and the legacies were exhausted. But under the California statute land devised in satisfaction of a debt less in amount than the value of the devise must contribute to the payment of debts the same as other devised, lands. In re Thayer's Estate, 142 Cal. 453, 76 Pac. 41 (1904). See. also, Mat- thews V. Targarona, 104 INId. 442, 65 Atl. 60 (1906). On contribution by leg- atees and devisees to make up a loss to some of their number caused by the widow electing to take her distributive share, see McGuire v. Luckey, 129 Iowa, 5."9. 105 N. W. 1004 (1900) ; Lewis v. Sedgwick, 223 111. 213, 79 N. B. 14 (T.HK-.); Kincaid v. Moore. 2:33 111. 584, 84 N. E. 033 (1908). On the effect of the death of the widow during the period of the right of election between dower and le^Kicy in lieu of dower, see 2 L. R. A. (N. S.) 959, note. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 683 shall make him refund in proportion; nay, if one of the legatees gets a decree for his legacy, and is paid, and afterwards a deficiency hap- pens, the legatee who recovered shall refund notwithstandmg, m mii- tatiok of the spiritual court where a legatee recovering his legacy is made to give security to refund in proportion if, etc. But if the executor had at first enough to pay all the legacies, and afterwards by his wasting the assets occasions a deficiency, in such case the legatee who has recovered his legacy shall not be compelled to refund, but shall retain the advantage of his legal diligence, which the other legatees neglected by not bringing their suit m time; before the wasting by the executor; whereas if the other legatees had com- menced their suit before such waste committed, they might have met with the like success, et vigilantibus non dormientibus jura subveniunt. This case I put to Mr. Vernon, who was of the same opinion. 23 "There is a distinction, running tlirough tlie cases, between an original deficiencfofLLts and where the assets were sufficient, but had been wasted bfthrelecut??' in'the former case, a legatee. -^o^f^^.J^^f^eCer 'ca'se'he his Dronortion, under the deficiency, must refund; but m the latter case ne is nJt obHged to for he has received no more than what was due to him. and The othei legatees must look to the executor. The legatee who has beeii paid^ shall retain the advantage of his legal diligence. This rule was so laid do^^n bv Sir JosVh Jekyll, in 1 P. Wms. 495 (Anon.); but it does not apply where fcfelitoi instead' of a legatee, is in questh^n. On a waste ^7 the executor a legatee who has been paid, must refund m behalf of a creditor. Ejie, Chief Baron, in Hardwicke v. Mynd, 1 Anst. 112; Anon., 1 Vers. 1G2. But the authorSes stop here; and the case of Walcott v. Hall f Bro. 30o as such a clear and solemn adjudication on this point as to place it ^eyoiKl all tu thei controversy. There was a legacy, in that case, of £50 given to the Plai itt nnrl navabie at the age of 21, and the interest, in the meantime, to be applied ?oifsmSn\enVnce.''Th? residue of the personal estate was given to the de- fendants. The executor retained the legacy for the plaintiff, and paid over the residue to the residuary legatees, and then became a bankrupt. Uu a bm melagains the executor and the residuary legatees, Lord Kenyon, who was then Master of the Rolls, declared that the residuary legatees were not liable for they had received no more than they were entitled to, and the party must rest on^he devastavit, and he dismissed tbe bill." Chancellor Kent, m Lupton V. Lupton, 2 Johns. Ch. (N. Y.) 614, 626, 627 (1817). ^ ^ ^ That even the residuary legatee need not refund when he has been Pa id out of a sufficiency of assets and there is a subsequent c evas avi by the ex- ao^^fr,r .ion of the estate. But where he has not been subjected to liability at the suit of a creditor, he shall not be permitted to recover back, for his own benefit, what he has voluntarily paid to the legatee. * * * Upon the whole ♦ * * it seems to me that both the rules of law and the particular circumstances of this case should preclude his re- covery.^' 2 6 "In England. It seems to be settled by the authorities, a legatee Is not bound to refund at the suit of the executor, unless the payment by him was compulsory, or unless the deficiency was created by debts, which did not ap- pear until after the payment of the legacy, in either of which cases the executor might compel the legatee to refund the excess paid on the legacy. See Toll. Ex'rs, 341; 2 Fonbl. Eq. 376; Coppin v. Coppin, 2 P. Wms. 296; Orr v. Kaines, 2 Yes. Sr. 194. But the general spirit of the decisions in Vii-ginia and West Virginia has relaxed much of the severity of the ancient English cases, when no fraud or misconduct is imputed to the executor. See Jones' Ex'r v. Wil- liams, 2 Call, 103, top page 86 ; Burnley v. Lambert, 1 Wash. (Va.) 312 ; Gal- legoe's Bx'rs v. Lambert (Tucker's opinion) 3 Leigh, 465 [24 Am. Dec. 650]. I am therefore of the opinion that there is no inflexible rule, which refuses to an executor under any circumstances the right to recover back from a legatee an excess of advancements which may have been made to him, even when the deficiency was created by debts which appeared before the payment of the leg- acy, and the payment was voluntary ; but in such case the executor will have to make a very strong case to rebut the almost conclusive presumption that he had a sufficiency of assets to justify the payment of the legacy, which arises from the mere fact that he has paid the legacy. As an instance, where the law would permit an executor to recover, I may put the case where the assets were apparently abundant when the legacy was paid, but were subse- quently rendered deficient by a general and destructive fire. See Miller v. Rice, 1 Rand. (Va.) 438. The general rule is, as laid down in English cases quoted [cited] above, and, to justify a departure from this general rule, the executor must show that in the execution of the will he has done everything which a prudent man ought to have done, and has done nothing that a cautious man ought not to have done ; and it will not suffice to show that he has been guilty of no fraud but has acted bona fide and with honest intentions. That the Eng- lish rule has not been relaxed in Virginia or West Virginia beyond what is above stated, abundantly appears from the cases of Davis v. Newman, 2 Rob. (Va.) 664 [40 Am. Dec. 764], Nelson's Ex'r v. Page, 7 Grat. (Va.) 160, Ander- son V. Piercx 20 W. Va. 282, and Shriver v. Garrison, 30 W. Va. 456, 4 S. E. 660." Green, J., in McEndree v. Morgan, 31 W. Va. 621, 531, 532, 8 S. B. 285, 291 (1888). "The claim that the executor makes of an alleged overpayment by him to a legatee Is a matter, so far as a recovery thereof by the executor is concerned, between him and such legatee. In his accounting the execu- tor charges himself with all the assets of the estate which he has re- ceived, and credits himself with the payment of such items as he thinks are or are not proper charges against the estate ; and unless the estate were lia- ble to pay any particular item, it should not be allowed, notwithstanding the payment had been made by the executor. ♦ • ♦ An overpayment by the executor to any person entitled to a distributive share does not in any way diminish the amount of the estate which the law says is in the executor's hands for distribution. The law does not recognize any such overpayment, and does not, therefore, permit the executor to credit himself with the amount of the excess. In legal contemplation the sum is in the hands of the executor as assets of the estate which he must pay over to the parties entitled there- to." Pec-kham. J., in Matter of Underbill, 117 N. Y. 471, 474, 475, 22 N. E. 1120. 1121 (TRSD). See, also, Matter of Robertson, 51 App. Div. 117, 64 N. Y. Supp. 3S5 (1900). Ch. 4) PAYMENT OF LEGACIBS AND SHARB8. 689 BUCHANAN v. PUE. (Court of Appeals of Maryland, 1847. 6 Gill, 112.) Martin, J.^* This is an appeal from a decree of the chancellor,, of the 1st June, 1846, by which it was ordered that the specific legacy, which had been delivered to the defendant by the complainant, should be returned to the complainant, to be applied by him as the executor of Edward Buchanan, in satisfaction of the testator's debts. * * * With respect to the second point made by the counsel for the appel- lant, we are of opinion there is no circumstance in this case which pre- cludes the appellee from reclaiming this legacy in a court of equity. It has not been pretended that the insufficiency of the assets to satis- fy the debts of the testator has been caused by the fraud or misconduct of the executor. The fund created by the sale of the farm in Balti- more county has been faithfully applied to the purposes designated by the will of Edward Buchanan ; and after having been exhausted in the payment of his debts, there still remains outstanding debts amount- ing to the sum of nineteen hundred dollars, in addition to the sum of three hundred and forty-five dollars and thirty-eight cents, due to the executor for disbursements made, and debts paid by him, on account of the estate. And, we think, that as it is evident in this case that the legacy was delivered by the appellee to the appellant upon the entire confidence, sincerely entertained, that the assets would be sufficient for the payments of the debts of the testator, but have proved to be inadequate, without the fault of the appellee, he was entitled to coerce a return of it, through the instrumentality of a court of equity. Upon this subject, there appears to have been some contrariety of opinion in the early cases, but the principle we have announced will be found to be sustained by the weight of authority, both in England and in this country. In the case of Davis v. Davis, reported in 8 Viner Abrgt. 423, it was held : "That an executor may institute a suit against a legatee, to refund a legacy voluntarily paid, as well as a creditor; and for this reason, an executor, paying a debt of the testator out of his own pocket, stands in the creditor's place, and has the same equity against the legatee to compel him to refund." In Hawkins v. Day, decided in 1753, Ambler's Rep. 160, Lord Hard- wicke said: "The rule in this court, to grant prohibitions in case legatees sue in the spiritual courts, and refuse to give security, is out of use; but the court will decnee a legatee to refund." In Edwards v. Freeman, 2 P. Wms. 446, Lord Chief Justice Ray- mond declared : 2 6 The statement of facts is omitted, and part only of the opinion is given. Cost. Wills — 44 690 PROBATE AND ADMINISTRATION. (Part 3 "That if an executor pays a legacy on supposition that there are assets to pay all the other legacies, and there happens a deficiency, the court will make the legatee, who is paid his full legacy, refund." The principle thus announced in the cases to which we have referred was recognized by Lord Alvanley, in the case of Johnson v. Johnson, 3 Bos. & Pul. 169, by Chief Justice Marshall, in Riddle v. Mande- ville, 5 Cranch, 330, 3 L. Ed. 11-1, and has been directly adjudicated by the Supreme Court of New Jersey, in the case of Harris v. White, 5 N. J. Law, 425, and by the presiding judge of the Court of Appeals of Virginia, in Gallego's Ex'rs v. Attorney General, 3 Leigh, 489, 24 Am. Dec. 650. And Judge Story, when treating of this subject in the first volume of his Equity Jurisprudence (section 90), says: "In the course of the administration of estates, executors and ad- ministrators may often pay debts and legacies upon the entire con- fidence, that the assets are sufficient for all purposes. It may turn out from unexpected circumstances, or from debts and claims made known at a subsequent time, that there is a deficiency of assets. Un- der such circumstances, they may be entitled to no relief at law. But in a court of equity, if they have acted with good faith, and with due caution, they will be clearly entitled to it, upon the ground that they will be otherwise innocently subject to an unjust loss, from what the law itself deems an accident." The same doctrine is maintained in Walker v. Hill, 17 Mass. 385. We place the right of the appellee to maintain this suit, upon the plain and acknowledged principle "that the payment of the legacy was made on a mistaken ground, with respect to the facts of the case, and that therefore it would be unjust and inequitable in the legatee to withhold it." Hutchins V. Hope, 12 Gill & J. (Md.) 256. * * * Decree affirmed.^' 27 See Sellers v. Smith, 11 Ala. 264 (1847) ; Clifton v. Clifton, 54 Fla. .535, 45 South. 458 (1907). Where persons eutitlerl to a distrilmtive share of an intestate's estate are known to exist, but through error of law the adminis- trator distributes the whole estate to others, or where through error of law the personal representative pays to some one not entitled to take, the personal representative can recover the money mistakenly paid only if in the given jurisdiction money paid with full knowledge of the facts, but under mis- take of law, may be recovered. Recovery was denied in Phillips v. McConica, .59 Ohio St. 1, 51 N. E. 445. 69 Am. St. Rep. 753 (1898) ; Shriver v. Garrison, .30 W Va. 456. 4 S. E. 660 (1887), and Scott v. Ford, 75 Or. 531, 78 Pac. 742, 80 Pac. 899, 68 L. R. A. 469 (190.5). Compare Rogers v. Ingham, 3 ChD. 351 (1876). Recovery was allowed in Culbreath v. Culbreath, 7 Ga. 64, 50 Am. Dec. 375 (1849). See, also, Northrop v. Graves, 19 Conn. 548, 50 Am. Dec. 264 (1849). E\^eu where recovery may be had for mistake of law alone the defendant's innocent change of position may be a defense. Brooking v. Farmers' Bank, 83 Ky. 431 (1885). And where recovery may- not be had be- cause the mistake is one of law only, the mistaken payment may be applied in extinguishment or reduction of a debt or liability actually duo and omug. Hempliill v. :Moody, 64 Ala. 468 (1879). In Williams v. McCardell, 14 S. C. 219 (ISSO), a distributee, who had been paid by the administrator out of the personal estate more than his total share of the real and personal estate of the intestate amounted to, died, and the other distributees sought on parti- Ch, 4) PAYMENT OF LEGACIES AND SHARES. 691 CLARK V. WILLIAMS. (Supreme Court of North Carolina, 1S74. 70 N. C. 679.) ReadE, J.^® The plaintiff, who was one of two sureties to the ad- ministration bond, and paid one-half of a debt recovered against the insolvent administrator, is not subrogated to the rights of the creditor, whose debt he paid, but to the rights of the administrator, for whom he paid it. It follows, that if the administrator had no rights, the plaintiff, his surety, has none. It becomes important, therefore, to de- termine the rights of the administrator. The administrator delivered over the property of the estate to the distributees, leaving a debt against the estate unpaid, and which was subsequently recovered against him. Can he recover back of the dib- tributees? It is settled that he cannot. Donnell v. Cooke, 63 N. C. 227. To this general rule there is the exception that, if he can show special circumstances to rebut the idea of negligence, he may recover back. Id. The special circumstance relied on in this case is that the intestate was not principal in the debt against the estate, but was only the surety; and the principal was, beyond all question, solvent, and able to pay, and was rendered insolvent by the unforeseen accident of the emancipation of his slaves so that it would have been overscrupu- lousness, if not dov/nright wrong, for the administrator to hold the es- tate in his hands to pay a surety debt, which there seemed to be not the slightest probability that he would have to pay. tion to appropriate, to the exclusion of his creditors, his Interest in the in- herited real estate. In was held, however, that the claim for repayment of the excess whicl! he received from the ancestor's estate had no priority over his other debts, even with respect to the property inherited from the ances- tor. Compare 4 L. R. A. (N. S.) 189, note. "It is well settled that a legatee, who has received no more than his legal share of the estate, is not liable to "account to another legatee, who by reason of a devastavit of the executor fails to receive his full share. His remedy is against the executor. The one who receives but what belonged to him has done the other no wrong. There is a line of cases which hold that if, by mis- take as to the condition of the estate, the executor pay to one legatee more than his share, or if by some unforeseen cause, for which the executor is not responsible and could not have reasonably anticipated, it turns out upon a final settlement that he has overpaid some of the legatees, he, after making good to the other legatees their share, may have relief in equity against the overpaid legatees. But the court will grant such relief only when it clearly appears that the executor was unable to foresee the 'peculiar circumstances' by reason of which the mistake occurred. Alexander v. Fox, 55 N. C. 106 [G2 Am. Dec. 211]; Lambert v. Hobson, 56 N. C. 424. It may be that, if the executor is insolvent, and the legatee has suffered loss uaider circumstances which would have entitled the executor to relief in equity, such legatee would be subrogated to the rights of the executor. No such condition is shown here, for the reason that there were ample resources of the estate from which equal- ity could have been secured, and that, with the concurrence of the plaintiffs, they have been distributed." Conner, J., in Sprinkle v. Holton, 146 N. C. 258, 264, 265, 59 S. E. 680, 682 (1907). On the refunding of legacies, see 4 Prob. Rep. Ann. 422, note. 2 8 The statement of facts is omitted, and part only of the opinion is given. 692 PROBATE AND ADMINISTRATION. (Part 3 The administrator, under these circumstances, being entitled to re- cover back of the distributees, and the plaintiff surety being substitut- ed in his place, the question is : In what proportion must the distribu- tees contribute? If they had executed the usual refunding bonds with sureties, they would have been conditioned, that each distributee should contribute his "ratable part." It was the privilege of the administrator to require such bonds. As he did not do so, their liability to him is each for his ratable part only. And the solvent ones are not liable to pay the parts of the insolvent. The judgment below must be modified, so as to give the plaintiff judgment here against Williams for one-half of his claim, and judg- ment against each of the other defendants for one-eight of the other half. * * * Per Curiam. Judgment modified.'^' ZOLLICKOFFER v. SETH. (Court of Appeals of Maryland, 1876., 44 Md. 359.) Alvey, J.^° The questions in this case arise upon a demurrer to the complainant's bill, and by the demurrer the facts alleged are admitted to be true. If, therefore, the bill discloses a case to entitle the com- plainant to rehef, the decree appealed from must be reversed, and the cause remanded for further proceedings in the court below. The right of the complainant to recover from the defendants, or any of them, will depend upon the decision of the two following proposi- tions : (1) Whether, by reason of the death of McHenry Grafton, and the full administration of his estate by his personal representative, his ob- ligation upon the administration bond of Alexander H. Seth and John M. Frazier, in which Coates and Grafton were co-sureties, ceased and became extinguished, not only as against his personal representative, but also as against his legatees and distributees, who have received his personal estate upon final administration by the executor. (2) The complainant, as executor of Coates, having paid the lega- cies under Robert Seth's will, after the administration and distribution of the personal estate of McHenry Grafton, Whether he, the com- plainant, is entitled to relief for contribution as against the legatees or distributees of the estate of Grafton, in respect to the distributions made to them under the will of their testator? 1. The administration bond, upon which Coates and Grafton were co-sureties, was given in 1865. Alexander H. Seth, the surviving ad- ministrator, with the will annexed, of Robert Seth, is and has been for 28 But see McClung v. Sieg, 54 W. Va. 467, 480, 46 S. B. 210, 66 L. R. A. 8S4 (1908). See, also, Outright v. Stanford, 81 111. 240 (1876). 8 The statement of facts is omitted, and part only of the opinion is given. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 693 a long time past utterly insolvent; and John M. Frazier, the other ad- ministrator and principal in the bond, died in 1870, also insolvent^ and before the estate of Robert Seth was fully administered. Grafton, the co-surety with Coates, died in April, 1867, leaving considerable estate, and by his will disposed of his property to his mother and brothers and sisters, and appointed John M. Frazier and Thomas L. Hall his execu- tors. Coates died in September, 1871, leaving a will wherein the com- plainant was made executor. In October, 1870, Hall, the surviving administrator of Grafton, set- tled in the orphans' court his second and final account, showing that the personal estate of the testator had been fully administered, and thereupon passed over the property to the parties entitled to receive it under the will of the deceased. In October, 1873, Alexander H. Seth, as surviving administrator of Robert Seth, passed an account in the orphans' court, showing certain balances due to the residuary legatees under the will of his testator; and very soon thereafter suits were instituted on the administration bond, at the instance and for the use of some oj such legatees, against the complainant as executor of Goates, and also against Alexander H. Seth, the surviving administrator, and against the executrix of Frazier, and also against Hall, the surviving executor of Grafton. In these suits recoveries were had as against the complainant; but, as against Seth, the judgments were unavailing, because of his insolvent condition, and as against Frazier's executrix there were no assets to be bound by judgment, and Hall, as the surviving executor of Grafton, successfully resisted recovery against him, on the ground that he had fully adminis- tered the estate of his testator before he was notified of the claims. Consequently, the complainant, as executor of Coates, was required and did pay, in 1874, not only the legacies for which judgments were re- covered, but other legacies for which the bond was bound, amounting in the whole to the sum of $4,765. Upon the facts, as detailed in the bill, the complainant prays that the legatees or distributees of the estate of Grafton may contribute their respective proportions to reimburse him, as the executor of Coates, to the extent of one-half of the amount which he has been required to pay to the legatees under the will of Robert Seth. This application is resisted upon the ground that the estate of Graf- ton is entirely and completely exonerated from any and all obligation created by the bond, by reason of the death of Grafton and the full administration of his estate before the existence of the claims was notified to his executor, and that, consequently, there is no right of contribution that can be maintained by the complainant as against the legatees or distributees of the co-surety's estate. That the executor of Grafton was exonerated, if he fully adminis- tered the estate and paid it over to the legatees or distributees without due notice of the claims, and after giving the notice by advertisement as required by the statute, may readily be conceded. * * * 694 PROBATE AND ADMINISTRATION. (Part 3 The law [the state statute] is very explicit * * * m providing for the exoneration of the executor, upon his observing certain pre- cautions ; but it is to be noticed and borne in mind that it is the execu- tor or administrator personahy that is to be exonerated and discharged, and not the estate of the decedent. It is nowhere declared or intimated that there should be no remedy for a creditor who may have failed to ' authenticate and notify his claim to the executor, before final adminis- tration, or that, if the creditor's claim be not ascertained or provable before such final settlement and distribution, he should be without remedy, notwithstanding his debtor's assets may be shewn to be abund- ant, simply because the executor or administrator may have delivered them over to legatees or distributees. It would be strange, indeed, if such were the provisions of the law. What would be the predicament of an absent creditor, who might be totally ignorant of either the death of his debtor, or of the administration of his estate? What would become of parties dependent for their protection and security upon official bonds, guardian bonds, trustees' bonds, and the like, where the breach has not occurred, or, if occurred has not been ascertained at the time of the final settlement and distribution of a surety's estate, if the position of the defendants in this case be sustained? Surely the law never contemplated the total discharge of the deceased surety's obligation in all such cases. In this case, the amounts for which the bond was ultimately liable, were not ascertained until October, 1873 — about three years after the final settlement and distribution of Graf- ton's estate. Until these amounts were ascertained, and actually paid by the complainant, as the representative of the co-surety Coates, there was no claim provable by him against the estate of Grafton. No laches therefore can be imputed to him in not exhibiting the claim for contribution before distribution of Grafton's estate by his executor. In England, as is well known, prior to Lord St. Leonards' Act, 23 and 23 Vict. c. 35, it was the established practice for administrators and executors to administer their estates under the orders and decrees of the Court of Chancery, and one great object in resorting to that jurisdiction by the executor or administrator was to obtain indemnity and protection against all future liabilities after final settlement. The creditors were required to come in and prove their claims under the de- cree, just as they are required to come in and prove their claims under the notice given by the executor or administrator by the order of the orphans' court, in our practice. Those failing to come in and prove their claims before final settlement and distribution of the estate, lost their remedy against the executor or administrator, but not as against the legatees or distributees. The same exoneration of the executor or administrator afforded in England by the decree in chancery, is provid- ed for with us by statute. In the case of Waller v. Barrett, 24 Beav. 413, an administration suit, Lord Romilly, the Master of the Rolls, in speaking of the effect of the omission of the creditor to come in and prove his claim under Ch. 4) PAYMENT OF LEGACIES AND SHARES. 695 the decree, said: "In the first place, I hold this to be established by the authorities, that if breaches of covenant have been committed at the date of the decree, and the covenantee do not come in and prove under the decree, he will be barred of all remedy against the executors, and that the executoi-s will be perfectly safe. It is the case of an existing debt, which the creditor does not come in and prove under the decree, and the court having administered the assets protects the ex- ecutors against all future claims. The creditor, however, is not left without his remedy, but that remedy is not against the executor. That principle is so fully established in this court, that it is unnecessary to cite many authorities on the subject; but this is what Lord Eldon says in Gillespie v. Alexander, 3 Russ. 136, on the subject: 'If a creditor does not come in till after the executor has paid away the residue, he is not without remedy, though he is barred the benefit of that decree. If he has a mind to sue the legatees to bring back the fund he may do so; but he cannot affect the legatees except by suit, and he cannot afifect the executor at all.' " The authorities are exceedingly numerous upon this subject, all maintaining the same general doctrine, several of which are referred to by the Master of the Rolls, in Waller v. Barrett, and, among others, he refers to the case of Knatchbull v. Fearnhead, 3 Myl. & Cr. 122, in which Lord Cottenham said : "Where an executor passes his accounts in this court, he is discharged from further liability, and the creditor is left to his remedy against the legatees ; but if he pays away the resi- due without passing his accounts in this court, he does it at his own risk." And to refer again to the case of Waller v. Barrett, the Master of the Rolls, in another part of his opinion, made these observations : "I am at a loss to conceive on what principle a debt which may arise hereafter, but which is not now existing, is to be treated on a footing dififerent to an existing debt. The creditor, although advertised for, may be abroad at the time ; he may be ignorant of the whole proceed- ings, and yet if he do not come in and claim, his only remedy in this court is against the legatees." And in the case of March v. Russell, 3 Myl. & Cr. 31, referred to in argument, Lord Chancellor Cottenham treated the doctrine as one of the oldest and best established of the court. He there said : "That a creditor may follow assets in the hands of the legatees to whom they have been delivered in ignorance of the creditor's demand, has been an established principle of this court from the earliest period, of the decisions in which we have any traces." And in accordance with these, and many other authorities maintain- ing the same general principle, Mr. Justice Story has stated the doc- trine as one as firmly established as any in the equity jurisprudence of the country. In 2 Eq. Juris., § 1251, the learned author says: "But the legatees and distributees, although there was an original deficiency of .assets, are not at law suable by the creditor. Yet he has a clear right in equity, in such a case, to follow the assets of the testator into their hands, as a trust fund for the payment of his debt. The legatees and 696 PROBATE AND ADMINISTRATION. (Part 3 distributees are in equity treated as trustees for this purpose ; for they are not entitled to anything, except the surplus of the assets after all the debts are paid/' This just and equitable doctrine formed a part of the system of jurisprudence implanted here from the mother coun- try, and there is nothing in our testamentary system that at all mili- tates against its continued operation. Indeed, it has been fully recog- nized by this court in the case of Kent v. Somervell, 7 Gill & J. 265, 270, and has been applied and acted on in the case of Hanson v. Worth- ington, 12 Md. 418, with respect to a legacy erroneously paid. See, also, Somervell v. Somervell, 3 Gill, 276, 43 Am. Dec. 340. Now, in England, by St. 22 & 23 Vict. c. 35, § 29, very much the same kind of notice by advertisement is required to be given to credit- ors to produce their claims to the administrator or executor, as that required to be given by our Code. It is provided that at the expira- tion of the time named in the notice for sending in such claims, the ex- ecutor or administrator shall be at liberty to distribute the assets of the testator or intestate, or any part thereof, amongst the parties entitled thereto, having regard to the claims of which such executor or admin- istrator has notice, and shall not be liable for the assets, or any part chereof, so distributed, to any person of whose claim such executor or administrator shall not have had notice at the time of distribution. But it is declared that nothing in the act shall be taken in any manner £0 prejudice the right of the creditor to follow the assets so distributed Into the hands of the persons to whom distribution may be made ; the object and design of the act being to avoid the expense and delay at- tending administration suits, and to afford to the executor or adminis- trator the spme protection that he would have under a decree in chan- rery. Clegg v. Rowland, L. R. 3 Eq. Cas. 368. This same protection V9.S designed by the sections of the Code to which we have referred, and hence, by the terms of the statute, only the executor or adminis- tr'^tor is exonerated from liability upon final administration of the assets, and not the estate or those to whom it has been distributed. * * * We need not say more to justify the conclusion that while the ex- ecutor of Grafton may be exonerated, there has been no discharge from, or extinguishment of, the obligation of the bond, as to Grafton's estate, by reason of the fact that the estate was administered and dis- tributed before the claim of the complainant was presented. Such con- clusion is but the natural and irresistible deduction from the principles which we have stated. * * * 2. As to the question of the complainant's right to contribution as against the legatees who have received the estate of the deceased co- surety, that has been virtually answered affirmatively in what has been sa'd in reference to the first question considered; and we think it clear beyond doubt. If the bond was still liable at the time of payment, the implied obligation, founded in natural justice and equity, was oper- ative to entitle the surety or his personal representative paying the Ch. 4) PAYMENT OF LEGACIES AND SHARES. 697 debt to contribution from the estate of a deceased co-surety. * * * Each legatee or distributee is liable to make contribution in due propor- tion to the amount received by him. Gillespie v. Alexander, 3 Russ. 130. * * * Decree reversed, and cause remanded. HOLT V. LIBBY et al. (Supreme Judicial Court of Maine, 1888. 80 Me. 329, 14 Atl. 201.) Exceptions from Supreme Judicial Court, Cumberland county. Trustee process to recover a legacy due the principal defendant. The trustees claimed that the legacy was offset by debt due from the fegatee to the estate. The plaintifif replied that the debt was barred by the statute of limitations. The opinion states the other material facts. Peters, C. J. It is a general rule, in the settlement of legacies by an executor, that he may retain the legacy — the whole or a sufficient portion — in satisfaction of the legatee's debt to the estate if the tes- tator does not indicate, either in the terms of the bequest or in other parts of the will, that it shall be otherwise. This is the rule both in law and equity.* The English practice goes further, and allows the rule to prevail, on the idea of lien, as to debts which have become bar- red by the statute of limitations. The leading case maintaining the English rule seems to be Courtenay v. Williams, 3 Hare, 539. Subse- quent English cases follow in the same line. Rose v. Gould, 15 Beav. 189 ; Coates v. Coates, 33 Beav. 249 ; 1 Redf. Wills, 489, and cases cited in note. One or two of the American state courts may have practiced on the English rule. But a legacy was recoverable in Eng- land, in the day- of the authorities cited, only in chancery. The same rule of equitable set-off prevails in that country, not only as to lega- cies, but also as to the share of one entitled as next of kin in the es- tate of an intestate. In re Cordwell's Estate, L. R. 20 Eq. 644. The reason assigned in the latter case for the rule is that, "until the debtor discharges his duty to the estate by paying the debt he owes to it, he can have no right or title to any part of it under the statute." This doctrine cannot be applicable in this state, and in most of the states, where a legacy is made by statute, if not by ancient practice, a legal claim. With us it is a distinct and independent legal claim. The estate is just as much of a debtor to the indebted legatee as the lega- tee is to the estate. Each has a legal right and remedy, and a stat- ute-barred debt is not more recoverable by an estate than by any other creditor. To our minds, this is the better doctrine. Observation leads us to believe that a testator is more likely to intend to remit than to collect such debts, when nothing is declared of them by him in his will, especially debts against his children and relatives. In many in- *0n his duty to retain for his own debt to the estate, see 6 Am. & Eng. Ann. Cas. 810, note. 698 PROBATE AND ADMINISTRATION. (Part 3 Stances such claims are covered by the dust of time and forgotten, though found by executors after the death of the testators. In many other instances the advances are intended as benefactions and gifts, conditioned upon some unforeseen circumstance arising to make it expedient to regard them as debts. The question under discussion has been in Maine ah'eady practically, and in Massachusetts expressly and fully, decided in accordance with these views. Wadleigh v. Jor- dan, 74 Me. 483; Allen v. Edwards, 136 Mass. 138. The other question of the case is whether a plaintiff who attaches a legacy by the trustee process is permitted to set up the limitation bar to an offset claimed by an e^xecutor against the debtor legatee. We think it is both logical and reasonable that the creditor should have the same right to the thing attached, and all its incidents, that the debtor has. If his attachment becomes perfected, the debtor's right becomes his right, and he should have the power to save and protect it as if his own. The law can make an assignment of the legacy as effectually as the legatee himself can. Otherwise we should, in the present case, have, as has been suggested, the curious result of an attaching cred- itor failing to collect a legacy which his debtor can collect. It would allow an assignor to enjoy the benefit of a claim, the title to which had legally passed to an assignee. The principle involved in this point has been virtually settled in favor of the plaintiff by the case of Sawyer v. Sawyer, 74 Me. 580, and the very satisfactory reasoning in that case is as pertinent to the facts in this case as to the facts there. By Rev. St. c. 65, § 31, any legatee of a residuary or specific legacy under a will may recover the same in a suit at law. The word "specific" is not here used in a strictly technical testamentary sense, but means definite, particular, or special. Any legacy may be recovered by legal remedy, unless, from exceptional reasons, equity should be resorted to. Exceptions sustained. Walton, Virgin, Libbey, Foster, and HaskeIvL, JJ., concurred. ^^ 31 See Wilson v. Smith (O. C.) 117 Fed. 707-709 (1902), where cases pro and contra are cited. See, also, Leask v. Hoagland, 64 Misc. Rep. 156, 118 N. Y. Supp. 1035 (1909) ; Ex parte Wilson, 84 S. C. 444, 66 S. E. 675 (1910), and cases post, pp. 748, 751. In Gosnell, Trustee, v. Flack, 76 Md. 423, 426, 427, 25 Atl. 411, 412, 18 L. R. A. 158 (1892), MeSherry, J., said: "The right of an administrator to retain from the share of a distributee the amount due by the latter to the intestate out of whose estate he is entitled to a share is undeniably clear. Smith & Talbott V. Donnell, Ex'r, 9 Gill, 84; Manning v. Thurston et al., 59 Md. 218. And we think it equally clear that this right exists where the debt has been incurred to the estate itself by the distributee as administrator aft- er the decedent's death. 2 Woerner on Adm. § 564. * * * it would be contrary to the plainest principles of justice to allow an administra- tor, who is also distributee, and who is indebted to the decedent, or who by reason of a subsequent defalcation becomes indebted to the estate, to escape the payment of his indebtedness if he happens to be insolvent, and besides that to receive his full, unabated distributive share. In such a case there is no question of impounding or intercepting a legal estate to satisfy in equity a delinquent trustee's malversations. It is merely an application of the doctrine of set-off." In In re Abrahams, Abrahams v. Abrahams, [1908] 2 Ch. 69, it is held that, "where at the death of a testator a debt is owing to him Ch. 4) PAYMENT OF LEGACIES AND SHARES. 699 GITTINS V. STEELE. (High Court of Chancery, ISIS. 1 Swanst. 199.) In preparing the minutes of the decree on the appeal in this case (reported 1 Swanst. 24), a question arose whether in refunding so much of the legacy of £7,000 as had been paid out of the personal es- tate, the legatees of that sum, who were also residuary legatees, should be charged with interest. The Lord Chancellor [Eldon]. Where the fund out of which the legacy ought to have been paid is in the hands of the court making interest, unquestionably interest is due. If a legacy has been errone- ously paid to a legatee who has no farther property in the estate, in recalling that payment I apprehend that the rule of the court is not to charge interest; but if the legatee is entitled to another fund making interest in the hands of the court, justice must be done out of his share. The order directed payment of interest at the rate of 4 per cent. Reg. Lib. A. 1817, fol. 1689.^^ In re WEST. WEST V. ROBERTS. (Supreme Court of Judicature, Chancery Division. [1909] 2 Ch. ISO.) Action. By her will, dated February 25, 1898, Emma J. West devised and bequeathed her residuary , real and personal estate to her executors and trustees upon trust for sale and conversion, and directed them to hold the net proceeds (after providing for debts, funeral and testamen- tary expenses, legacies, and annuities) upon trust for her children, Charles, Josephine, Isabelle, and Clara, in equal shares. Each share by a person to whom a share of residue is immediately given by the will, but the debt is payable by installments, the executors are not entitled to retain the share of the beneficiary as against the future installments of the debt that may become due, but are bound to pay it to the beneficiary without reference to such installments" (syllabus). On whether an heir's indebtedness to the es- tate forms a counterclaim or set-off against his distributive share of the pro- ceeds of a sale of the realty to pay debts, see 4 L. R. A. (N. S.) 1S9, note. On the statute of limitations as a defense to actions or suits for legacies and distributive shares, see IS Am. & Eng. Ency. Law (2d Ed.) S0.3-S05. 32 "If, however, any one or more of the residuary legatees has received more than his or her equal share of the funds for division, then to the extent of such excess such legatee has received money not belonging to him or her, as the case may be, and is bound to refund the same, with interest, to the executors or persons representing them, or, in this case, where all the parties are before the court, to those who have been underpaid, in order to avoid circuity of action. Inasmuch, however, as under the view which we shall talje of other exceptions, it is altogether improbable that any of the residuary leg- atees will be found to have been overpaid, we need not dwell further upon this subject." Mclver, C. J., in Buerhaus v. De Saussure, 41 S. C. 457, 491, 19 S. E. 926, 944 (1S94). 700 PROBATE AND ADMINISTRATION. (Part 'S was settled as therein mentioned, the son taking a protected life inter- est, and the daughters hfe interests without power of anticipation. By a first codicil, dated October 17, 1902, the testatrix revoked the provisions for the settlement of Josephine's and Isabella's shares and gave them their shares absolutely. The second codicil, of March 13, 1903, is not material. By a third codicil, dated July 27, 1903, the testatrix bequeathed one- third of her preference and ordinary shares in J. & E. Atkinson, Limit- ed, to Josephine, one-third of the same shares to Isabelle, and one- third of the same shares to her trustees upon the trusts of Clara's fourth share of residue. The fourth codicil, of April 2, 1904, is not material. The testatrix died on July 17, 1904, and her will and four codicils were proved on August 30, 1904. After first transferring the shares into their own names as shareholders, the executors and trustees duly transferred one-third of the shares to Josephine and one-third to Isa- belle and retained one-third as trustees of Clara's settled share. On December 8, 1907, the testatrix's sister-in-law, Mrs. King, died. Among her papers was a sealed envelope on which the testatrix had written: "To be opened only after the death of Mrs. King should I predecease her. If occasion demands to be returned to Emma J. West, 19 Clevedon Square, Hyde Park W." This envelope contained a fifth codicil, dated June 16, 1904, where- by the testatrix revoked the third codicil and bequeathed a fourth part of the Atkinson shares to each of her children Josephine, Isabelle, and Charles absolutely, and a fourth part to Clara in settlement according to the will. On January 9, 1908, the original probate 'of the will and four codi- cils was revoked, and on November 28, 1908, new probate of the will and five codicils was granted to the same executors. In the meantime, namely, on February 26, 1908, the plaintiff Charles brought this action to recover one fourth of the shares and one fourth of the dividends from the testatrix's death from the de- fendants Josephine, Isabelle, and Clara and the trustees respectively. Josephine and Isabelle admitted the plaintiff's right to the shares and transferred their proportion pending the action. Clara was willing that the trustees should transfer on the order of the court. The defendants did not, however, admit the plaintiff's right to share in any dividends paid before December 8, 1907, when the fifth codicil (vas discovered. SwiNFEN Eady, J. (after stating the facts). The defendants do not dispute that the plaintiff is entitled to thp shares bequeathed to him by the fifth codicil, which were erroneously but inadvertently transferred to the wrong persons, but they contend that the plaintiff is not entitled to the dividends which in the meantime they have re- ceived and retained for their own use. Ch. 4) PAYMENT OF LEGACIBS AND SHARES. 701 It is exceedingly difficult to see any principle upon which the de- fendants, whilst conceding that they are not entitled to retain the shares given to their brother by the fifth codicil, are yet entitled to retain for their own use the dividends on those shares which were not really bequeathed to them at all. It is said that where a legatee has been ordered to refund either in respect of a pecuniary legacy or in respect of a share of residue, such refunding under the rule laid down in Gittins v. Steele, 1 Swans. 199, is without interest; but it ap- pears to me that the reasoning has no application to a case of this kind, where the legacy is of specific shares, because upon the assent of the executors those shares vest in the legatee, and the assent, when given, has relation to the time of the testatrix's death. In the case of a specific legacy it is well established that immediately after the ex- ecutors' assent the legacy vests in the legatee, and he can maintain an action at law in respect of it. If the plaintifif has a legal right to the shares as from the testatrix's death, it seems to me that he has also a legal right to the interest or dividends. In Williams on Executors (10th Ed.) p. 1108, it is said: "The assent of an executor shall have relation to the time of the testator's death. Hence, in the case of a devise of a term of years in tithes, in an advowson, or in a house or land, if after the testator's death, and before the executor's assent, tithes are set out, the church becomes void, or rent from the undertenant becomes payable, the assent by rela- tion shall perfect the legatee's title to these several interests." In Saunders' Case, 5 Rep. 12b, it is said that "if lessee for years devises his term to another, and makes his executors, and dies, the executors do waste, and afterwards assent to the devise, in that case, although between the executors and the devisee it hath relation, and the devisee is in by the devisor, yet an action of waste shall be main- tainable against the executors in the tenuit." It was rather suggested that the assent, if any, in this case under the second probate was subject to the intermediate improper applica- tion of the dividends, but I cannot accept that view. The legacy was assented to and the usual consequences must follow. The legatee became entitled to the legacy as from the testatrix's death. With regard to the analogy between a pecuniary legacy or share of residue and a specific legacy, it is pointed out in Williams on Ex- ecutors (10th Ed.) pp. 1566, 1567, that no action at law lies against an executor for a general legacy or share of residue. "But the law is different with respect to specific legacies ; for, after an assent by an executor to a specific legacy, he is clearly liable at law to an action by the legatee, because the interest in any specific thing bequeathed vests at law in the legatee, upon the assent of the executor." The ex- ecutor can only assent to the legacy in favor of the legatee to whom it is given, not in favor of a stranger, and the only person to whom these shares that I have to deal with were given was the plaintiff. I therefore determine that the plaintiff is entitled to the shares be- 702 PROBATE AND ADMINISTRATION. (Part 3 queathed to him, that he is entitled to these shares as from the testa- trix's death, and that this bequest carries the intermediate income, including the right to recover that income from those who have re- ceived it. SECTION 4.— THE EXONERATION OF MORTGAGED PROPERTY. HALLIWELL v. TANNER. (High Court of Cliancery, 1S30. 1 Russ. & Myl. 633.) The testator, having three leasehold estates, bequeathed them to three different persons; and, one of them being subject to a mortgage made by him, he directed the mortgage money to be paid out of his residuary personal estate. The personal estate being insufficient for that purpose, a question was made, whether the legatees of the two other leasehold estates should contribute rateably with the leasehold estate in mortgage towards payment of the mortgage debt. Thk Master of The Rolls [Sir John Leach]. In the case of Oneal v. Mead, 1 P. Wms. 693, it was decided that, as between a dev- isee of a mortgaged fee simple and a specific legatee of personalty, the devisee should not have his mortgage paid by the specific legatee, but shall take the mortgaged fee simple cum onere. A fortiori, a specific legatee of a mortgaged leasehold shall not have contribution towards his mortgage from other specific legatees of leasehold. The direction, that the mortgage debt should be paid out of the residuary personal estate, merely follows the general rule of law ; and, that fund failing, the legatee of the mortgaged leasehold must take it cum onere.^^ 3 3 Contribution from the other devisees was denied a devisee, where land devised to him was mortgacred after the making of the will, in Frasier v. Lit- tleton, 100 Va. 9, 40 S. E. 108 (1901). .Locke King's Acts. — The present English law on the exoneration of mort- gaged I'ealty is thus stated by Maitlaud: "In discussing the order of assets we have spoken as though all the debts were unsecured; but what of secured debts? Among the debts owed by the dead man there was one debt which was secured by a mortgage of Blackacre. Does the fact that this debt was thus secured make any difference when we are discussing the question what fund is the primary fund for its payment? The old answer to this question was (as a general rule), none at all. Here is a debt and it must be paid like other debts. If the dead man has not made a will and therein given some direction to the contrary, the first fund for the payment of his debts, including this debt, consists of his general or residuary personalty. Put the simplest case. He owed £1,000 upon mortgage of Black- acre, of which, subject to the mortgage, he was tenant in fee simple. He dies intestate. His real estate, including Blackacre, descends to his heir at law, while his personalty will be distributed among his next of kin. But first debts must be paid, including the mortgage debt on Blackacre, and all his personalty must be swallowed up in paying debts before any part of his realty, including Ch. 4) PAYMENT OF LEGACIES AND SHARES. 703 Appeal of HOFF. (Supreme Court of Pennsylvania, 1855. 24 Pa. 200.) Woodward, J.^* * * * fj-jg testator devised to his wife, the appellant, for life, the house in which he dwelt on Chestnut street, to- gether with the policy of insurance and furniture. When he purchased the house in 1847, there was a mortgage resting on it for $8,400, made by a former owner, and his will is silent in regard to the payment of the mortgage. The executors paid it off out of the personalty, and took an assignment ; but the creditor and the court of common pleas refused to allow them a credit for it on the ground that the widow took the estate cum onere, and that she must pay the mortgage. She appeals, and the question is whether the mortgage is chargeable on her estate or on the personalty. The will contains, in the introductory clause, the usual direction as to payment of debts, a phrase which in England is necessary to charge debts on the realty, but wholly unnecessary here, where lands as well as personal estate are bound for every decedent's debts. Still the words "after the payment of my lawful debts," cannot be treated as meaning nothing; and if they are to have any significance, it must be that the executors should pay the debts before distribution be made of the estate in pursuance of the will. A debt secured by a mortgage of the testator's own making, is no less a debt within the meaning of the introductory phraseology of wills than a promissory note ; and ex- ecutors are as much bound to pay the one as the other. The reason as- signed in the English cases for throwing such a mortgage upon the per- sonalty, is that the personal estate has been benefited by the making of the mortgage ; a reason for which we stand in no need, though it is as applicable here as there. As to the mortgagee, the mortgage is a specific lien, and he cannot be restrained from resorting to the land pledged; and as between him and other creditors, he will often be Blackacre, could be touched. This seemed unfair, and by three acts, the first of which is always spoken of as 'Locke King's Act,' Parliament has tried to set this matter straight. The three acts are 17 & IS Vict. c. 113 (1854), 30 & 31 Vict. c. 69 (1867), and 40 & 41 Vict. c. 34 (1877). The last of these acts says in effect that in the administration of the estate of any testator or intestate dying after the 31st of December, 1877, seised or possessed of any land or other hereditaments of whatever tenure which shall at the time of his death be charged with the payment of any sum by way of mortgage or any other equitable charge, including a lien for unpaid purchase money, the devisee or heir at law shall not be entitled to have such sinn satisfied out of any other estate of the testator or intestate unless (in the case of a testator) he shall have signified a contrary intention, and that a contrary intention shall not be deemed to be signified by a charge of or direction for payment of debts out of residuary real and personal estate or residuary real estate. That, at least for the time being, is the last word in the history of a muddle." Maitland's Equity and the Forms of Action at Common Law, 212, 213. On Locke Kings Acts, see In re Birch, [1909] 1 Ch. 787. 34 The statement of facts and a small part of the opinion are omitted. 704 PROBATE AND ADMINISTRATION. (Part 3 compelled to do so in relief of other funds ; but as between the mort- gagor and his representatives, his mortgage is evidence of indebted- ness ; and where there is nothing in the will to control their action, it is their plain duty to pay it. And to excuse them there must be a clear declaration of intention that the devisee of the mortgaged prem- ises is to take them cum onere. Thus it is settled, says Powell, on the authority of a great number of cases (see his work on Devises, vol. 11, p. 671), that a devise of mortgaged lands, subject to the mortgage thereon, does not throw the charge on the estate so as to exempt the funds which by law are antecedently liable, as the testator is consid- ered to use the terms merely as descriptive of the encumbered situa- tion of the property, and not for the purpose of subjecting his devisee to the burden. But how is it where the estate comes to the devisor encumbered by a mortgage made by a former owner? If it come by descent or devise, and the testator has done no act to make the debt his own, his devisee will take the estate cum onere, and the executors are not chargeable with the mortgage; and the rule is the same even where the testator has purchased the estate, if he have had no connection, or contract, or communication with the mortgagee, and have done no act to show an intention to transfer the debt from the estate to himself. What dealings will have the effect to make the mortgage his own debt, have ■ been debated in a great variety of cases, several of which counsel have cited in their paper-books. It seems that paying the mortgagee a high- er rate of interest, and indemnifying the vendor against the mortgage, both which occurred in this case, are not such acts on the part of the purchaser as make him personally liable for the mortgage debt. Shafto V. Shafto, 2 Cox's P. W. 664 ; Woods v. Huntingf ord, 3 Ves. 128. The court below ruled the question on this ground. The learned judge said, it must appear that he (the testator) has done some act by which he has made himself directly liable to the owner of the encum- brance; and then he ruled that the evidence submitted to the auditor was insufficient to shift the obligation from the real to the personal fund. We agree that some act must be shown, indicative of an inten- tion to take the mortgage upon himself, and the court were, perhaps, right in setting aside the evidence of payment of an increased rate of interest, and certainly right in disregarding the declarations of the testator, made to persons having no interest in the subject; but they overlooked one important and decisive fact, which was in full proof before the auditor, to wit, that Hoff purchased not merely the equity of redemption in this house and lot, but the entire interest, and that the mortgage formed part of the price of the estate. The proof was that he bought of William Reynolds and wife for $13,900; that he paid $5,500, which, with this mortgage of Elmes to Harvey of $8,400, was "in full the consideration for the premises." The receipt of Rey- nolds, indorsed on his deed to Hoff, stipulates, moreover, that the said Ch. 4) PAYMENT OF LEGACIES AND SHARES. 705 mortgage and the interest due, and to grow due, thereon are to be paid by the said John Hoff. Now, it is immaterial whether this amounted to a covenant on the part of Hoff to pay the mortgage, though, according to the doctrine of Campbell v. Shrum, 3 Watts, 60, and the cases there cited, it might be easy to say it did, but surely there can be no doubt he would be liable to an action for money had and received, at the suit of the mort- gagee. As was said in the case of the Earl of Belvidere v. Rochfort, cited in 2 Powell on Devises, 679, the plain intent of the deed was to put the purchaser in the place of the vendor, and that he might not be longer liable to the mortgagee, a sufficient part of the purchase-money was left in the purchaser's hands for satisfaction of the mortgage, the purchaser thereby taking upon himself the vendor's bond and covenant for payment of the mortgage, as fully as if he himself had covenanted to pay it off, and either the vendor or mortgagee might, upon that contract, have compelled him to pay it off. The decree in that case was confirmed by the House of Lords, and though some doubt has been thrown upon it by Lord Thurlow in Tweddell v. Tweddell, 2 B. C. C. 107, and by Lord Alvanley, in Woods v. Huntingford, still its good sense is its sufficient vindication, and commends it to our acceptance. Nor is the doctrine of that case destitute of support from authorities of high respectability, as may be seen by consulting Billinghurst v. Walker, 2 B. C. C. 608; Cope v. Cope, 2 Salk. 449, 2 Ch. Ca. 5; Pochley v. Pochley, 1 Vern. 36 ; King v. King, 3 P. W. 360 ; Galton v. Hancock, 2 Atk. 436 ; Robinson v. Gee, 1 Vesey, 251 ; Phillips v. Phillips, 2 Bro. C. 273; Johnson v. Milkrop, 2 Vern. 112; Balsh v. Hyam, 3 P. W. 455. If, then, Hoff, in his purchase of Reynolds, made himself liable to the mortgagee in any form of action, how can we hesitate to call the mortgage his debt? It is of no consequence that the mortgagee was not a party to the dealings between Hoff and Reynolds, for it is a rudimental principle, that a party may sue on a promise made on suffi- cient consideration for his use and benefit, though it be made to an- other and not to himself. It is equally unimportant that the mortga- gee's remedies against the land remained unimpaired. The question before us does not touch the specific lien of the mortgage, but the per- sonal liability of the purchaser. He made himself liable to his vendor and to the mortgagee, and he retained purchase money enough in his hands to indemnify himself. That money belonged to the mortgagee, and I hold he might have recovered it in assumpsit if not in covenant ; but, not being paid in the lifetime of Hoff, his personal estate had the benefit of it, and it went into the hands of his executors for the pay- ment, first of all, of his "lawful debts." He had no debt more lawful than this mortgage, and there is great precision in the equitable princi- ple which devotes that money in the executor's hands to the satisfac- tion of this debt. CosT.Wnxs— 45 706 PROBATE AND ADMINISTRATION. (Part 3 But that principle is applicable only when there is no controlling tes- tamentary intention expressed. If it were deducible from the whole will, that the testator meant his widow should pay the mortgage out of her life estate, we should be obliged to say so — for the will is the law of his estate. But no such intention is manifest. It is clear, however, beyond all doubt, that he meant the bulk of his personal estate should go to legatees in the form of pecuniary lega- cies ; and it seems to be settled, that the devisee of a mortgaged estate is not entitled to be exonerated out of personal estate specifically be- queathed. Neal V. Mead, 1 P. W. 693. And the same rule, it has been decided, extends to pecuniary legacies. Lutkins v. Leigh, Cases in Time of Talbot, 3 ; Hamilton v. Morely, 2 Vesey, Jr. 65. In Rus- ton v. Ruston, 2 D. 243 ; s. c. 2 Y. 54, we have a discussion of many of the principles I have adverted to; and, under a devise of mortgaged premises, it was held that the personal estate of the testator shall not go in ease of the mortgaged premises, so far as to defeat specific or ascertained pecuniary legacies, or any part thereof ; aliter of the lega- cies of the residuum. On this ground the decree of the court can be sustained so far as the ascertained legacies under the will are concerned, but not as to the residuum, and the auditor's report shows that there will be a resid- uum, though not of sufficient amount to pay off the mortgage. What- ever there is must be applied to the mortgage in ease of the widow's life estate. The auditor distributed this under the 13th clause of the will ; but so much of the decree as sustains this distribution must be reversed. If that clause be regarded as a bequest of additional lega- cies, it is so general and indefinite in terms as not to exempt the por- tion of the estate to which it applies from contribution to the mort- gage. * * * 35 In re HUNT. (Supreme Court of Rhode Island, 1895. 19 R. I. 139, 32 Atl. 204, 61 Am. St. Rep. 743.) Matteson, C. J. This is a case stated for the opinion of the court. Rowland L. Rose, died intestate September 19, 1894, seised and pos- sessed of a parcel of land on the southwest corner of Bridgham and Greenwich streets in Providence, particularly described in the petition. This parcel of land was formerly owned by Dexter N. Knight who mortgaged it to the Mechanics' Savings Bank to secure the payment of his note for $25,000, dated January 23, 1869. On February 13 following. Knight conveyed the equity of redemption in the mortgaged property to Gorham Thurber who assumed the payment of the m.ort- 85 See Raftery v. Monaban, 22 R. I. 558, 48 Atl. 940 (1901). On the right to exoneration, see 6 Prob. Rep. Ann. 631, note ; 11 Prob. Rep Ann. 435, note; 3 L. R. A. (N. S.) 898, note. Ch. 4) PAYMENT OF LEGACIES AND SHARES. • T07 gage and guaranteed the payment of the mortgage note by a guaranty written on its back. The trustees of the estate of Thurber conveyed the property to Rose subject to- the mortgage by deed dated May 11, 1889. The consideration named in this deed was $10,000, which was the sum paid by Rose for the equity of redemption. He also assumed the payment of the mortgage by a clause in the deed to him as fol- lows: "Said premises are subject to a mortgage of twenty-five thou- sand dollars ($35,000) to the Mechanics' Savings Bank payment of which is assumed by the grantee." On July 22, 1889, the Mechanics' Savings Bank transferred the mortgage to the Citizens' Savings Bank. Rose thereupon as a consideration for the transfer signed an agree- ment on the back of the note as follows: "Waiving demand, notice and protest, I hereby guarantee the full payment of the within note; future payments of principal or of interest in renewal thereof not releasing me as indorser." The interest on the note has been paid to January 23, 1895. The administrator, widow and heirs at law of the deceased have concurred in stating the foregoing facts to obtain the opinion of the court on the question whether the heirs are entitled to have the mortgage paid out of the personal estate in exoneration of the real, or whether the real estate descended to them subject to the incumbrance of the mortgage. The general rule as between the real and personal representatives is that the personalty is the primary fund for the payment of debts : and this rule is not changed by the fact that the debt is secured by a mort- gage on the realty given by the deceased. Gould v. Winthrop, 5 R. I. 321; Atkinson v. Staigg, 13 R. I. 725; 2 Williams on Executors, 1012. The rule extends, however, only to incumbrances created by the deceased himself; if the estate has come to him already mort- gaged, the estate is the primary fund for the payment of the debt and on his death passes to his devisee or heir at law subject to the incum- brance, unless he has so dealt with the mortgage debt as to make it his own personal debt. Gould v. Winthrop, 5 R, I. 321. The ques- tion, then, resolves itself into this : Did the deceased, purchasing the equity of redemption, by assuming the payment of the mortgage debt in the manner stated, or by guaranteeing the payment of the note on the transfer of the mortgage from the Mechanics' Savings Bank to the Citizens' Savings Bank, make the mortgage debt, as between his real and personal representatives, his personal debt? The assumption of the mortgage by Rose was equivalent to a cove- nant with his grantors to indemnify them against the mortgage debt, or to a covenant with them to pay the debt. Mount v. Van Ness, 33 N. J. Eq. 262, 265. Entering into covenants like these, it is held, does not sufficiently show an intention on the part of the purchaser to transfer the debt from the estate to himself, as between his heir and executor or administrator, to have that eft'ect. Evelyn v. Evelyn, 2 P. Wms. 661; Tweddell v. Tweddell, 2 Bro. Ch. 101, 152; Woods v. Huntingford, 3 Ves. 128; Butler v. Butler, 5 Ves. 534; Waring v. 708 PROBA.TE AND ADMINISTRATION. (Part 3 Ward, 7 Ves. 332; Ea.;l of Oxford v. Lady Rodney, 14 Ves. 417; Barham v. Earl of Thanet, 3 Myl. & K. 607 ; Duke of Cumberland v. Codrington, 3 Johns. Ch. (N. Y.) 229, 8 Am. Dec. 492; Keyzey's Case, 9 Serg. & R. (Pa.) 71, 73; Mount v. Van Ness, 33 N. J. Eq. 262. And the rule is the same even though the purchaser has rendered himself liable at law to the mortgagee for the payment of the mort- gage debt. Duke of Cumberland v. Codrington, 3 Johns. Ch. (N. Y.) 229, 8 Am. Dec. 492. Nor was the guaranty on the back of the note by Rose sufficient to manifest an intention on his part to make the debt his own in such wise as to change the natural course of assets. It was merely a col- lateral undertaking in no way affecting the original contract between the mortgagor and the holder of the mortgage, which remained after the guaranty precisely as before. To have the effect of transferring the debt from the estate on which it is charged to the personal estate, the dealing between the purchaser and the mortgagee must go to the length of changing the terms of the original contract so as virtually to constitute a new contract; as for instance, arranging for different times or modes of payment, or for an additional loan with a new mortgage including the old as well as the new loan, etc. Billinghurst v. Walker, 2 Bro. Ch. 603 ; Woods v. Huntingford, 3 Ves. 128; Waring v. Ward, 7 Ves. 332; Earl of Ox- ford v. Lady Rodney, 14 Ves. 417 ; Barham v. Earl of Thanet, 3 Mylne & K. 607 ; Creesy v. Willis, 159 Mass. 249, 34 N. E. 265 ; 2 Jarman on Wills, 1449. We are, therefore, of the opinion (1) that the estate described in the petition descended to the heirs at law of Rowland L. Rose charged with the burden of the mortgage for $25,000; (2) that he did not by assuming payment of the mortgage nor by guaranteeing payment of the mortgage note charge his administrator with the payment of the mortgage debt; (3) that the administrator will not be justified in pay- ing the mortgage debt out of the personal estate which may come to his hands." 8 6 See Hetxel v. Hetzel (N. J. Ch.) 71 Atl. 755 (1908), to the effect that in New Jersey "the assumption of a mortgage does not make the debt a per- .sonal one of the grantee covenantor," and hence assumed mortgages are not "debts in a technical sense." See, also, Creesy v. Willis. 159 Mass. 249, 34 N. E. 205 flKrt.3) where the court explains that "it is well settled in this commonwealth that a promise made by a purchaser of an equity of redemp- tion, by accepting a deed poll from his grantor, to pay the mortgage debt, is not a promise which can be enforced by the mortgagee by an action at law la his own name, or in the name of the grantor without his consent." See. also, Monoghan v. Collins (N. J. Ch.) 72 Atl. 109 (1909). In Nebraska, where the assumption of the mortgage debt makes the grantee personally liable therefor, the heirs and devisees are entitled to exoneration. Schade v. Connor. 84 Neb. 51, 120 N. W. 1012 (1909). See, also, Mosier v. Bowser, 22(5 111. 46, 55, 56, 80 N. E. 730 (1907). For the rule wlicre taxes levied on testator's real estate in his lifetime are to b€ paid, see In re Hewitt, 40 Misc. Rep. 322, 81 N. Y. Supp. 1030 (1903). Ch. 4) PAYMENT OF LEGACIES AND SHARES. 709 TURNER V. LAIRD. (Supreme Court of Errors of Connecticut, 1896. 68 Conn. 198, 85 Atl. 1124.) Suit to determine the construction of the will of Robert Balfour, deceased. " The parts of the will particularly brought in question were the ninth, tenth and eleventh articles, which were printed in the report of the case of Turner v. Balfour, ^'2 Conn. 89, 90, 25 Atl. 448. By the ninth article, "the Geer house" was devised to the testator's grandson Robert Balfour, in fee, subject to a life estate in his widow. By the tenth, half of his residuary estate was left to a son for life, remainder to the same grandson, in fee, and the other half to another son, in fee. By the eleventh, in case Robert Balfour should die, leaving no issue, "his share" was given to the testator's "six children, share and share alike." All the personal estate was consumed in paying debts, legacies, and charges of settlement. The "Geer house" and a store building form- ing part of the residuary estate, were each subject to a mortgage made by the testator after the execution of his will, to secure his note to a savings bank for a sum less than half the value of the property so mortgaged. No claim on these notes was ever presented against the estate, and the time limited for the presentation of claims had expired ; but one payment of interest on the "Geer house" mortgage was made by the administrator, before the time so limited had expired. Interest on both mortgages had been fully paid by the administrator. Robert Balfour died without issue, during the life of the widow. The questions presented were whether either or both these mortga- ges ought to be paid off by the administrator, and if so, out of what funds. The case was reserved for the advice of this court, on the com- plaint and answers. Baldwin, J." A specific devise of land, mortgaged by the testator to secure his own debt, prima facie imports an intention that such debt shall be satisfied out of the general personal assets. Hewes v. Dehon, 3 Gray (Mass.) 205. In the case at bar, this presumed intention, with respect to the "Geer house," finds additional support in the provision made by the testator in the first article of his will, directing his execu- tor to pay all his just debts and funeral expenses and the legacies subsequently given out of his estate. The word "debts," in such a connection, includes mortgage debts. Bishop v. Howarth, 59 Conn. 455, 465, 22 Atl. 432. That the holders of the mortgages in question did not present their claims against the estate, did not, as between the executor and the devisees of the mortgaged property, discharge his obligation to pay them off. The extent of the testator's bounty to his grandson could 8 7 The statement of facts is sliglitly abbreviated. 710 PROBATE AND ADMINISTRATION. (Part 3 not be thus reduced by the acts or omissions of third parties. The plaintiff's duty was the same as if the devise of the "Geer house" had been followed by an express direction that any mortgage upon it should be paid by the executor. A payment thus required is made to effectuate a gift from the testator to the devisee. It may be also the satisfaction of a claim legally presented. It may, on the other hand, be made to a creditor who does not wish to receive it, but prefers to let the debt remain on interest, and rely on his collateral security for its ultimate discharge. The residuary devise and bequest was of what might remain "after the payment of my said debts and funeral expenses, and the preceding legacies and devise." This language charged on the residuary real estate all debts which the personal estate was insufficient to satisfy. Enough of the residuary real estate must therefore be sold to dis- charge the mortgage on the "Geer house." That on the store building should be satisfied in the same way, unless the residuary devisees oth- erwise agree. Section 556 of the General Statutes which provides that when any estate devised shall be taken for payment of debts, a contribution shall be due from the other legatees or devisees, applies only when the' will is silent, or its intent uncertain. Here the estate taken is residuary estate, and the testator required the debts to be paid before the residue was formed. • The superior court is advised that it is the duty of the plaintiff to pay the mortgage on the "Geer house," and, if requested by any of the residuary devisees, that on the store building; and that the requi- site funds should be raised by sale of so much as may be necessary of the residuary real estate. In this opinion the other Tudges concur- red." as In Btilkley v. Seymour, 74 Conn. 459, .51 Atl. 125, 92 Am. St. Rep. 229 (19<'»2), lauds subject to a mortgage placed thereon by testatrix were specific- ally devised without mention of the mortgage, and it was held that, as no contrary Intention appeared in the will, the land passed, to the devisees ex- onerated from the mortgage debt. So of lands mortgaged after the execution of the will. .TacUson v. Bevins. 74 &)nn. 9G, 49 Atl. 899 (1901). In Jacobs v. Hutton. 79 Conn. .'!t;o. 05 Atl. 150 (1900), the testator devised mortgaged prop- erty and then quitclaimed the land to the devisee, and it was held that the conveyance did not deprive the devisee of the right to have the mortgage dis- charged by the estate. In the view of the court the devise was one of the property freed from the mortgage and a conveyance subject to the mortgage wn.s not. therefore, a total ademption, lint compare Rice v. Rice (Iowa) 119 N. W. 714 (19U9), where a devise of land "free from any lien or Indebtedness whatever" was held adeemed by a conveyance of the property by the testator to the devisee, although the conveyance was subject to the wife's statutory dower Interest. The court, however, gave as a reason that "the widow's stat- utory interest Is not an Incumbrance or Hen in the ordinary sense in which the woriN are used, uor as they were understood by the testator." 119 N. W., at page 710. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 711 SECTION 5.— RESIDUARY DEVISES AND BEQUESTS 39 TINDALIv'S EX'RS v. TINDALL. (Court of Errors and Appeals of New Jersey, 1873. 24 N. J. Eq. 512.) Bill in chancery by William Tindall against John Manning and Ed- ward Paxton, executors, etc., of Aaron Tindall, deceased, for one eighth part of the sum of $5,000, a lapsed legacy to testator's wife. Testator, after the above bequest to his wife, and several other legacies, bequeathed as follows: "I give and bequeath whatever of my property shall remain after payment of the above, and due settlement of all my business, to my two friends, John H. Manning and Edward Paxton." He appointed Manning and Paxton executors. Testator left no issue, but had eight brothers and sisters. Two of these (of whom the com- plainant is one) survived him. The other six died before him. All left children living at the death of the testator. The defendant Pax- ton is one of these children. The case was argued before the chancel- lor upon bill and answer, who found for plaintiff, and defendants ap- pealed. DalrimplE, J. The question in this case is whether a certain lapsed legacy of $5,000, given in and by the will of Aaron Tindall, deceased, falls into the residuum of the estate and goes to the residuary lega- tees, or remains undisposed of, and is to be distributed among the next of kin of the testator. The will, after directing the payment of debts and funeral expenses, and the sale and disposition of all testator's property, real and personal, which he might own at the time of his decease, and the collection of the moneys due him, gives to his wife, Ann, in lieu of her right of dower at common law, the said legacy of $5,000. After certain general legacies and bequests, the residuum of the estate is disposed of as follows : "I give and bequeath whatever of my property shall remain after payment of the above, and due settle- ment of all my business, to my two friends, John H. Manning, to him, his heirs and assigns, and to Edward Paxton, to him, his heirs and as- signs." The residuary legatees are appointed executors. The testa- tor having survived his wife, the legacy of $5,000 to her lapsed. This suit is brought by one of the next of kin of the testator, to recover a share of the legacy which has thus lapsed, and his right to recover is put upon the ground that, as to the $5,000 in question, the testator died intestate. The rule applicable to the question to be solved, as stated in the text- books, as well as in many adjudged cases, is that the residuary legatee 3 9 On the abatement of residuary devises and bequests, see note 12 to Arm- strong's Appeal, ante, p. 659. 712 PROBATE AND ADMINISTRATION. (Part 3 is entitled as well to a residue caused by a lapsed legacy, or an invalid or illegal disposition, as to what remains after payment of debts and legacies. The only exception to the rule is that, where the words used show an intention on the part of the testator to exclude from the op- eration of the residuary clause certain portions of the estate, such in- tention, as gathered from the whole will, must not be defeated. Or the rule embracing the exception, as stated in some of the books, is that the residuary legatee must be a legatee of the residue generally, and not partially so only. The rule is so firmly established that citation of authority in its support is hardly necessary. I will, however, refer to the following text-books and adjudged cases : 2 Rop. Leg. 1672 ; 3 Williams, Ex'rs, 1313; Easum v. Appleford, 5 Mylne & C. 56; King V. Woodhull, 3 Edw. Ch. (N. Y.) 86 ; James v. James, 4 Paige (N. Y.) 117; Banks v. Phelan, 4 Barb. (N. Y.) 90; Cambridge v. Rous, 8 Ves. 25 ; 2 Redf . Wills, 442. The learned chancellor, in the court below, held that the case now before us came within the exception to the general rule, because the estate given was that which should remain after payment of the legacies belore given. But I cannot see that this form of expression in any wiie limits or restricts the extent of the gift. The clause would have had precisely the same meaning and effect if it had been, in terms, of the residue of the estate. All that the testator could give to his residu- ary legatees was what remained of his estate after payment of his par- ticular debts and legacies. The legal effect is precisely the same, wheth- er the one form or the other is adopted. The chancellor bases his opinion upon what he conceives to be the rule as laid down in 2 Williams, Ex'rs, p. 1315, and in 2 Rop. Leg. pp. 1679, 1682. Pie also cites the case of Attorney General v. Johnstone, Amb. 577. Exactly what Mr. Williams states the true rule to be is as follows : "The testator may, by the terms of the bequest, narrow the title of the residuary legatee, so as to exclude him from lapsed lega- cies ; as when it appears to be the intention of the testator that the residuary legatee should have only what remained after the payment of the legacies." Mr. Roper states the exception to the general rule in the following language : "When the legatee is not generally, but only partially, residuary legatee, he will not, in that character, be entitled to any benefit from lapses, though very special words are required to take a bequest of the residue out of the general rule ; as, first, when it appears the testator intended the residuary legatee should have only what remained after the payment of legacies." If these authors intend to say (which, to my mind, is by no means clear) that when the clause of the will giving the residuum of the estate contains, or has annexed to it, the words, "after payment of debts and legacies," the settled rule of construction is that lapsed legacies are not embraced, but that as to them the testator is to be held as hav- ing died intestate, I cannot yield my assent to the proposition. The Ch. 4) PAYMENT OF LEGACIES AND SHARES. 713 cases cited by the authors referred to do not support such a doctrine, while there are several well-considered cases to the contrary. Vice Chancellor Wood, in the case of Bernard v. Minshull, Johns. Eng. Ch. 276, 299, says: "All you. have to consider is whether the property is excepted, in order to take it away, under all circumstances and for all purposes, from the person to whom the rest of the property is given, or whether it is excepted merely for the purpose of giving it to some one else. If the latter, and the gift to some one else fails, the donees of all except this property are entitled to take the whole." In Roberts v. Cooke, 16 Ves. 451, it was held that a general disposi- tion of personal estate, not thereinbefore specifically disposed of, com- prehended specific legacies lapsed ; the word "specifically" being held to mean "particularly." In the case of King v. Woodhull, 3 Edw. Ch. (N. Y.) 79, 84, the form of the bequest was: "The residue and re- mainder of my estate, if any there shall be, after the payment of the said $1,000 to the missionary society, I give and bequeath to the chil- dren of my niece." And it was held broad enough to embrace as well the legacy to the missionary society, which it was claimed was void, as a bequest to a mission school, which was held to be ineffectual. Vice Chancellor McCoun in his opinion in that case says : "The words, 'after payment of debts and legacies,' or after payment of legacies specified or recapitulated in the residuary clause itself, are not restrictive of the bequest to any particular or partial residue; but the bequest, after all, is general of the remainder, and may be so understood without doing violence to the expressions of the will. Where the residuary clause is thus worded, the legatee is as much a general legatee of the residuum of the estate as if such words were not used." In Shanley v. Baker, 4 Ves. 732, the words were, all the rest and residue of my estate and effects "not by me hereinbefore particularly disposed of;" and they were held to embrace a leasehold property given as a legacy, which, by the statutes of mortm.ain, was void. To the same effect is the case of Brown v. Higgs, 4 Ves. 709. The case of Attorney General v. John- stone, Amb. 577, was not decided upon the ground that the residuary bequest contained words of import similar to those now under consid- eration, for it did not; but the conclusion reached in that case was that, from the whole context of the will, it was evident that the tes- tator did not intend that the void legacy should, in any event, become a part of the residuum of his estate. The syllabus of the case, which very well shows the point decided, is: "Residue, under particular cir- cumstances, will not take in lapsed legacies ;" the residue being given as a small remainder of about £100, and the lapsed legacies amounting to £20,000. I have not been able to see anything in the residuary clause, when taken by itself, or in the context of this will now before us, which will authorize the result sought by the complainant. It seems to me quite evident that the testator did not intend to die intestate as to any part of his property. He gave the legacy of $5,000 to his wife, to be accepted 714 PROBATE AND ADMINISTRATION. (Part 3 * at her option, in lieu of her right of dower in his estate. If she should decline to accept it on these terms, or if, by reason of her death in the lifetime of her husband, it lapsed, the will of the testator, as ascer- tained from the well-settled meaning of the words he has used, was that the lapsed or rejected legacy should go into and form part of the residue of his estate. For the reasons above stated, the decree below must be reversed, and the complainant's bill dismissed, but without costs in this court or the court below.*** DOE ex dem. FERGUSON et al. v. HEDGES et al. MCKNIGHT'S LESSEE et al. v. SAME. (Superior Court of Delaware, 1835. 1 Har. 524.) Clayton, C. J.*^ Mary James being seised in fee of the premises in question by her will duly executed, dated 30th July, 1831, gave and devised to "Saint Andrew's Church in Wilmington, all a certain lot of land therein described, to have and to hold the use of the said house and lot to the said church forever; but not to be sold on any account whatever." And after bequeathing sundry legacies, there is this clause in her will : "Item, I give, bequeath and devise to William Ball and Mary Ball, children of James Ball, deceased; and to John McKnight all the residue of my estate real and personal of whatever kind it may be." The lessors of the plaintiff are the residuary devisees. It is not contended in this case that the devise to Saint Andrew's Church, passes any estate in the premises in question to the church; but it is admitted that the devise is void by the laws of this state. That question was decided at the last May Term in Kent, in State, Use of Wlltbank et al., v. Bates. The question here is, who take? the heirs at law of Mrs. James, or her residuary devisees? Since the case of Doe, on the Demise of Morris, v. Underdown, Willes, 293, that question seems to be completely settled in England. In that case the distinction, as far as we can ascertain, was first es- tablished between a lapsed devise, and a void devise. The principles laid down by the Chief Justice in that case were these : that the intent of the testator ought always to be taken as things stood at the making of his will, and is not to be collected from subsequent accidents which the testator could not then foresee; and that when a testator in his will has given away all his estate and interest in certain lands, so that if he were to die immediately nothing remains undisposed of, he can- not intend to give anything in these lands to the residuary devisee. This latter rule would govern all cases of lapsed devises; for if the 4 On residuary clauses, see 4 Prob. Rep. Ann. 491, note. 41 The statement of facts is omitted. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 715 testator were to die immediately upon the making of the will there would be nothing undisposed of, and the devisee would take ; but if the devisee were to die between the making of the will, and the death of the testator, the devise would lapse and the heir at law would necessarily take in preference to the residuary devisee, for it was not undisposed of at the making of the will, but the devise was rendered inoperative by a subsequent accident — the death of the devisee. This is not so in the case of a void devise ; for there at the making of the will nothing passes, nothing is disposed of, and the residuary devisee under the clause "all the residue of my estate" takes, and not the heir at law. In Doe, Lessee of Stewart, v. Sheffield, 13 East, 526, this is considered as the settled law ; and in Doe, on the Demise of Wells and Others, v. Scott and Another, 3 Maule & Sel. 300, Lord Ellen- borough in delivering the judgment of the court recognizes the au- thority of the two preceding cases as "admitted law" on the subject. We are not unaware of the American decisions on this subject in 6 Conn. 293, 16 Am. Dec. 58,*- and in Lingan v. Carroll, 3 Har. & McH. (Md.) 333; but we prefer following the authorities which we have cited. The heirs at law do not appear to have been objects of the testator's bounty; they are nowhere mentioned in her will. This circumstance is not relied on in forming our judgment, but merely to show that the testatrix did not desire that her heirs at law should derive any benefit from her estate. Our decision is founded upon the authorities which we have cited, and upon the principles established by them. Our opinion is therefore for the residuary devisees, and judg- ment is accordingly given for the plaintififs in the case of the Lessee of McKnight and Others v. Hedges ; and in the other case, lessee of J. Ferguson and others, the heirs at law of Mary James, against the same defendant, that judgment be given for the defendant.** BLIGHT V. HARTNOLL. (Supreme Court of Judicature, Court of Appeal, 18S3. L, R. 23 Ch. Div. 218.) Jessel, M. R.** It is well to see what the law is upon this subject before we attempt to construe this will. I take it that the law as to residuary personalty is now substantially the same as the law relating to real estate, with respect to which the statute 1 Vict. c. 26, § 25, 4 2 Greene v. Dennis. But see Giddings v. Giddings, 65 Conn. 149, 32 AtL 334, 48 Am. St. Rep. 192 (1894). 4 3 Under modern statutes the heirs do not take void devises, any more than lapsed, if the residuary clause is broad enough to embrace them. Patterson v. S\Yallow, 44 Pa. 487 (1863) ; Gallavan v. Gallavan, 57 App. Div. 320, 08 N. Y. Supp. 30 (1901). See section XXV of the Wills Act in the Appendix, post, p. 765. 44 The statement of facts, the concurring opinion of Liudley, L. J., and the opinion of Fry, J., in the court below are omitted. Fry, J., decided that the- wharf fell into the residue. 716 PROBATE AND ADMINISTRATION. (Part 3 enacts that unless a contrary intention shall appear by the will such real estate or interest as is comprised in any devise which shall fail or be void by reason of the death of the devisee in the lifetime of the testator or by reason of the devise being contrary to law shall be in- cluded in the residuary bequest. If that be so, the first question is whether the bequest in this case is a residuary bequest, for if it is the void gift must prima facie fall into it. You may have a residuary bequest in various forms; the same thing may be meant though not expressed in the same words. But however it is expressed, the effect must be that it is intended to comprise all which is not disposed of by the will. It is not a true residue if there is some part not disposed of by the will to anybody at all. There is a difterence between a part of the estate being undisposed of and a part being unduly dis- posed of. When I say a residue I mean the residue of the estate not professed to be otherwise disposed of by the will. If any part is not professed to be disposed of at all by the will there is no true residuary gift. The wording is not material. If a man says, "I give all my personal estate except my gold watch, which I give to A., and my leasehold house, which I give to B.," that is a true residuary gift. The common form no doubt is to begin with a bequest of legacies to A., B., and C, and then to give the residue to D. But it means the same thing. Evans v. Jones, 2 Coll. 516, is an authority for that, if one is wanted. But it is very different if a testator gives every- thing to A. except his gold watch and his leasehold estate and does not give them to anybody else. In that case there is not a lapse or void gift of the watch and leasehold estates, they are not legacies at all, but they go to the next of kin, and there is no true residuary gift. But the moment we get a true residue the law is that the residue is increased by the lapse of a legacy or by the fact that it has not been effectually given away in accordance with the expression of the testator's inten- tion. Here the residuar)^ gift is as simple as possible. The testatrix gives to Christiana Hartnoll all her personal property except a certain wharf, and that wharf is expressed, to be given away to other persons, but is not validly given away, some of the limitations being void for remoteness. Why should not this wharf fall into the residue? It is said that there is a contrary intention shewn, because the will makes the wharf subject to certain debts which are charged on it. But it is only made subject to the debts if the legacy takes effect; there is nothing charged on it if the legacy does not take, effect. It appears to me very difficult to suppose that a testator should intend that a legacy which fails from being void should not go into the residue. Unless you find express words shewing that the testator doubted whether a bequest in his will was void or not, it is impossible to sup- pose that he contemplated what would happen if the bequest was in- valid. It is different from the case of lapse, for every testator knows that there is a possibility of a legatee dying before him, although of Ch. 4) PAYMENT OP LEGACIES AND SH4.RES. 717 course he presumes that the legatee will survive him. The only case which I can conceive of is where a testator doubts whether charities to which he wishes to make bequests are capable of taking them ; in that case he may put into his will a string of illegal bequests, but we cannot assume that he knew them to be illegal. It is almost impos- sible to imply a direction that if a legacy should fail, as for example for remoteness, it should not fall into the residue. There is nothing in the present case to lead one to suppose that the testatrix thought the gift would be void, or intended that if it was it should not fall into the residue. Therefore in my opinion the decision of Mr. Justice Fry was correct. As regards Wainman v. Field, Kay, 507, as I have before ob- served, the Vice Chancellor came to the conclusion that there was no true residue, and therefore the property in question did not fall into the residue. That decision is merely one of construction, and I do not think that I should have come to the same conclusion on the construc- tion of the will in that case, but that is not material. There is no prin- cinle laid down, and I cannot extract any principle from the decision. Therefore whether I concurred in the construction or not that author- ity has no application to this case. MOLINEAUX V. RAYNOLDS. (Court of Chancery of New Jersey, 1896. 55 N. J. Eq. 187, 36 Atl. 276.) Reed, V. C.*'' * * * Charles T. Raynolds died, leaving a will by which he left of this property thirty-six hundredths to his son Ed- ward H., thirty-two hundredths to his son Chajles T., and thirty-two hundredths to Edward H., as trustee for his son William W. His son Charles T. died before his father, and the question is whether his share passed to Mrs. Adelaide Raynolds under the residuary clause of the will, or whether it was undisposed of by the will, and so passed to the two sons as heirs at law of their father. The two sons, in their own right, make no claim to any interest in their deceased brother's share, but the wives of the two sons claim an inchoate right of dower in the same, grounded upon what they claim to be the legal estate of their respective husbands as heirs at law. Alary S. is the wife of Edward H., and Mattie C. is the wife of William W. Raynolds. At common law, whenever a devise lapsed by the death of the devisee, before the death of the testator, the property passed to the heirs at law, while lapsed legacies, instead of passing to the next of kin, fell in the residuum, and so passed, under a will, to the residuary legatees. This distinction between the course taken, un- der the same condition of affairs, by lapsed devises and lapsed lega- cies, seems to have sprung from the fact that no real estate acquired by *B Part only of the opinion is given. 718 PROBATE AND ADMINISTRATION. (Part 3 the testator, after the execution of his will, passed under the residu- ary clause, while such a clause included all personal property owned by the testator at the time of his death not otherwise given, no matter when acquired. Now, by our statute of wills, these instruments become operative upon real property acquired after, as well as before, the date of the execution of the will. Rev. p. 1248. By this act devises and legacies are put upon the same footing, and it would seem that inasmuch as the residuary clause carries all the personalty left undisposed of by other parts of the will, the same should naturally be its effect in regard to realty. Similar statutes in other states have been judicially declared to extinguish all difference between lapsed legacies and lapsed devises, in this particular, and that both pass into the residuum in default of a contrary intention manifested on the face of the will. This is the law of this state. In Executors of Shreve v. Shreve, 10 N. J. Eq. 385, Chancellor Williamson suggests the query whether the statute did not abolish the distinction betv^^een real and personal property in the particular mentioned ; and in Smith v. Curtis, 29 N. J. Law, 345, it was expressly, held by the supreme court that the rule upon which the distinction between lapsed legacies and lapsed devises had arisen should not be kept up, as the reason upon which the rule rested had been removed. It was held, in that case, that a lapsed devise passed into the residuum. Under the doctrine laid down in this case, the share of Charles T. passed to Mrs. Adelaide Raynolds under the residuary clause of the will. * * * i/iy conclusion is that the share of Charles T. Ray- nolds fell into the residue and was devised to Adelaide E. Raynolds.*® In re ISAAC. HARRISON V. ISAAC. (Supreme Court of Judicature, Chancery Division. [1905] 1 Ch. 427.) The will of Joseph Isaac, after giving certain pecuniary legacies, directed that "the remainder" of testator's property be divided among certain designated nephews and nieces. The will ended: "And I ap- point my executor my residuary legatee." Two of the pecuniary leg- 46 See Drew v. Wakefield, 54 Me. 291, 296, 297 (1S6R) ; Cruiclishank v. Home for the Friendless, 113 N. Y. 337. 21 N. W. 64, 4 L. R. A. 140 (18S9). But see Rizer v. Perry, 58 Md. 112 (ISSl). A renunciation by the specific devisee will take place by relation back, so as to give the property to the residuary devisee or other person next entitled, it seems. Bradford v. Calhoun, 120 Tenn. 53, 109 S. W. 502, 19 L. R. A. (N. S.> 595 (1908). In that case the devisee had only a life estate, and the renuncia- tion became effective by relation, so as to vest title in the remainderman as of the date of the will and to render nugatory an execution levy by a judg- ment creditor of the devisee for life. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 719 atees predeceased the testator, and the executor took out an originat- ing summons. Two of the questions raised were: (1) Whether the appointment of the plaintiff as residuary legatee operated to revoke or defeat the previous bequest of the remainder of the testator's property to the defendants? (2) Whether by the lapse of the two pecuniary legacies, owing to the deaths of the legatees in the testator's lifetime, the same "remainder" was increased by the amount of the lapsed lega- cies, or passed to the plaintiff as residuary legatee ? The summons was heard on February 4, 1905, by Buckley, J., who decided that the appointment of the plaintiff as residuary legatee did not revoke the previous bequest of the "remainder." The second question was then argued. Buckley, J.*^ I have already held in answer to the first question that the appointment of the executor as residuary legatee does not de- feat or revoke the previous gift of the remainder of the testator's property. It remains for me to determine what is the destination of the legacies which have lapsed by the deaths of the two legatees in the lifetime of the testator. Now if the will had not contained these last words appointing the executor residuary legatee, it seems to me that the words "the re- mainder of my property shall pass," etc., would have constituted a per- fectly good residuary bequest. But the will does contain the words I have mentioned. Does that fact alter the construction which I have placed on the first residuary gift? I do not think it does, unless the effect be to reduce the earlier words to silence. Is it possible, without doing this, to give a proper effect to the later words? In my judgment it is, because if the prior gift of one or more of the shares of "the remainder" were to fail, owing to a lapse by the death of the legatee in the lifetime of the testator, the subsequent disposition ap- pointing a residuary legatee would take effect. If some person en- titled to a share of the remainder died in the lifetime of the testator, there would be a lapse of a part of the first disposed of residue, and under the second disposition the residuary legatee would take some- thing. The testator makes certain gifts, and provides that "the remainder of my property shall pass as follows." I think that means that, subject to providing for such of the previous gifts in the will as take effect, the remainder of the property shall pass in the manner in- dicated. In other words, the prior gift is a residuary bequest. Then there is another residuary gift to which effect can be given by holding it to mean that, if any of "the remainder" of the property is undis- posed of, anything to be swept up is to belong to the executor, who is to take it beneficially. It does not seem to me that there is any au- thority exactly in point. The nearest case is that of In re Jessop, 11 Ir. Ch. Rep. 424, where it appears to have been assumed that lapsed *7 The statement of facts is rewritten and abbreviated. 720 . PROBATE AND ADMINISTRATION. (Part 3 legacies would enure for the benefit of the second residuary legatee. The gifts of residue there were, the first to A. and the second to A. and B. It was unreasonable to suppose that a legacy lapsing by the death of A. could be intended to fall into residue for the benefit of A. herself and another. This being so, there was nothing that the sec- ond residuary legatee could take other than legacies which were given in priority to both residuary gifts and which lapsed. That is not the case here. I think that the lapsed legacies in the present case fall into the first gift of residue.** MORISEY V. BROWN. (Supreme CJourt of North Carolina, 1907. 144 N. a 154, 56 S. B. 704.) See ante, p. 671, for a report of the case. DRESEL V, KING et al. (Supreme Judicial C!ourt of Massachusetts, Worcester, 1908. 198 Mass. 546, 85 N. El 77, 126 Am. St. Rep. 459.) Knowlton, C. J. This is a bill brought by an administrator with the will annexed, for instructions as to the meaning of the will. The fourteenth clause of the will is as follows : "I direct my executor, here- inafter named, to convert all the rest and residue of my estate into cash and to divide the same among the pecuniary legatees hereinbefore named, in proportion to their several pecuniary legacies ; but should my estate not herein specifically devised be insufficient to pay all my debts,' charges of administration and the pecuniary legacies herein giv- en, said pecuniary legacies are to be proportionally abated." One of the pecuniary legatees, to whom $10,000 was given by the will, died before the testatrix, leaving no issue. Her legacy, there- fore, lapsed, and the first question argued is whether it fell into the residuum, or passed to the next of kin of the testatrix. We think that the residuary clause had the distinguishing character- istics of a true residuary clause, which indicates a purpose of the tes- tator thereby to include all his estate that is not actually disposed of in other parts of his will, and thus to make a complete disposition of all his property. We think it plain that this lapsed legacy is to be disposed of under the residuary clause. The most difficult question in the case is whether the gifts in this clause are to the pecuniary legatees as a class', so that on the death of one of them the whole amount goes to the survivors, or whether they are gifts to them as individuals, to hold as tenants in common in the *8 Compare Ward v. Stanard, 82 App. Div. 386, 81 N. T. Supp. 906 (1903). Ch. 4) PAYMENT OF LEGACIES AND SHARES. 721 proportions specified. The legatees are not mentioned by name, but their identity as individuals is plainly shown. They are not in the ordinary sense members of a distinct class, for they have no relation to one another except as recipients of the testatrix's bounty. One of them is a corporation, and most of them are not relatives of the tes- tatrix or of one another. We are of opinion that the clause should be construed as if they were severally mentioned by name, to receive each a share in the propor- tion specified. If this is the meaning, under the rule stated in Jackson V. Roberts, 14 Gray, 546, the gift to any one of them who died before the testatrix would lapse. Such a result was reached in Sohier v. Inches, 12 Gray, 385, Lombard v. Boyden, 5 Allen, 249, Cummings v. Bramhall, 120 Mass. 552, Frost v. Courtis, 167 Mass. 251, 45 N. E. 687, and Lyman v. Coolidge, 176 Mass. 7, 56 N. E. 831. The strong- est case cited for the pecuniary legatees on this point is Prescott v. Prescott, 7 Mete. 141, but the language of the will in that case was much less specific, as pointing to the individuals and to distinct propor- tions, than it is in this. We are of opinion that the present residuary clause should be treated as if it mentioned the legatees by name, and gave his proportional share in terms to each. In this view, the share that was given to Annette M. Alden, which was 2"/2 5 3 of the entire residue, lapsed, and passed to the next of kin as property undisposed of by the will. It is contended that this share goes to the other residuary legatees. But as to this share, which is a part of the residuum, they are not residuary legatees. In Lyman v. Coolidge, 176 Mass. 7-9, 56 N. E. 831, 832, this court said : "But where a legacy lapses, which is a part of the residue, it cannot, according to our decisions, fall into the resi- due, because it is itself a part of the residue, and it must pass as in- testate estate." This rule was also stated and applied in Sohier v. Inches, 12 Gray, 385, Lombard v. Boyden, 5 Allen, 249, Frost v. Cour- tis, 167 Mass. 251, 45 N. E. 687, Powers v. Codwise, 172 Mass. 425, 52 N. E. 525, and Best v. Berry, 189 Mass. 510, 75 N. E. 743, 109 Am. St. Rep. 651. It prevails in other jurisdictions. Kerr v. Dougherty, 79 N. Y. 327, 346, 349 ; Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177 ; Humble v. Shore, 7 Hare, 247; Bagwell v. Dry, 1 P. Wms. 700. It follows that the proportional part of the residuum which would have gone to Annette M. Alden if she had survived the testatrix will be divided among the next of kin. So ordered.'** *» In In Re Dunster, [1909] 1 Ch. 103. 105, 106, Neville, J., says: "There Is a well-known rule that where residue is given to tenants In common and one of the tenants in common dies in the testator's lifetime, the lapsed share does not go as an accretion to the gift to the other tenants in common, but it is held that there is an intestacy and the share goes among the next of kin. That is, there can be no residue of a residue. The arguments by which this rule was arrived at are i>erfectly intelligible, and, one may say, plausible. Neverthe- less, I think that the effect of it is to defeat the testator's intention in almost CoST.WlLLS-^6 722 PROBATE AND ADMINISTRATION. (Part 3 SECTION 6.— ADVANCEMENTS AND THE ADEMPTION AND SATISFACTION OF LEGACIES AND DEVISES ^° GRATTAN v. GR.\TTAN. (Supreme Court of Illinois, 1856. 18 111. 167.) Skinner, J." This was a bill in equity for distribution of an in- testate's estate. The bill alleges that, in 1852, Silas Grattan died in- testate, leaving the complainant, Azariah B. and Philip D. B. Grattan, his children, and sole heirs at law, and Elizabeth Grattan, his widow, every case in which it is applied; but it is a rule by which I am undoubtedly bound. That rule has been held to apply in cases where the gift is to named persons but not to apply in cases where the gift is to a 'class.' " Where the residue was given to five people, and the gift to one was re- voked by a codicil, it was held that his fifth went to the next of kin, and not to the other residuary legatees. Wain's Estate, Vaux's Appeal, 156 Pa. 194, 27 Atl. 59 (1893). So where the gift to one lapsed. Gorga's Estate, Robinson's Appeal, 166 Pa. 269, 31 Atl. 86 (1895). "It is true as a general rule that a testator is not presumed to bestow his bounty upon persons other than those who survive him, unless his intent to the contrary is evident. Where it appears, however, that a bequest or devise bv will was made to discharge a duty or obligation resting upon the testator, this, in effect, will preclude a lapse of the bequest, although the legatee may die during the life time of the testator. For instance, the rule is well settled that a legacy or bequest made in payment of a debt does not lapse by the death of the legatee prior to that of the testator. This rule has been af- firmed by the authorities where the debt or debts were barred by the statute of limitations at the time the testator executed his will. 2 Redfleld, Wills (3d Ed.) 161 ; Williamson v. Naylor, 3 You. & Coll. Ex. 208 ; Turner v. Martin, 7 De G.. M. & G. 429; Phillips v. Phillips. 3 Hare, 281; Ward v. Bush. 59 N. J. Eq. 144 [45 Atl. 534]." Jordan, J., in Ballard v. Camplin, 161 Ind. 16, 21, 22, 67 N. E. 505, 507 (1903). See, also, Stevens v. King, [1904] 2 Ch. 30. On statutes to prevent lapses, see 2 L. R. A. (N. S.) 580, note. 5 "While the term 'advancement' is generally used in cases of intestacy, the term is also used as applicable to cases of wills. Where in either event the in- tention is clear that the sums advanced should be deducted from the amounts due the devisee under a will, or heir in case of intestacy, that intention must prevail." Grant, J., in In re Bresler's Estate, 155 Mich. 567, at page 575, 119 N. AV. 1104, at page 1107. On advancements to heirs, see 12 L. R. A. 566, note. "A legacy is, strictly speaking, adeemed (from adimere, to take away) when the thing given has. by some act of the testator, ceased to exist in the form in which it is described in the will, so that on his death there is nothing answer- ing the description of the legacy to be given to the legatee. * * * ^ gjuj. ilar result follows where the testator performs the function of an executor, by giving during his lifetime what he intended the legatee to have by his will, thereby satisfying the legacy himself, leaving nothing for the executor to do in respect of such legacy. The distinction between the ademption and satis- faction of legacies seems clear enough, but it is not generally observed ; the term 'ademption' being applied indiscriminately to cases where the legacy is cut off by the destruction or alteration of the subject, and where it is sat- isfied by the delivery of the subject to the legatee during the testator's life- time." 2 Woenier's American Law of Administration (2d Ed.) 973, § 446. On the ademption of legacies, see 05 Am. St. Rep. 342, note. 51 The statement of facts is omitted. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 723 him surviving, and seised of certain real estate in this state which de- scended to said heirs, and possessed of certain personal estate which remains for distribution among them; that said Silas, in his lifetime, conveyed and caused to be conveyed to said Azariah and to said Philip respectively, by way of advancements, and with the intention of pro- viding for the complainant out of the remainder of his estate, certain real estate ; that said Azariah and said Philip, at the time of making said advancements, were, and still are, infants, and that said Silas died without providing for complainant ; that one Binckley is administrator of the estate of said Silas, and has in his hands said personal estate for distribution. The bill makes said Azariah, Philip and Elizabeth, and said Bmck- ley, defendants, and prays that said Azariah and Philip be compelled to bring into hotchpot with the estate of said Silas their respective advancements, or be barred from participating as heirs in the said es- tate. Upon the hearing the court dismissed the complainant's bill. Without referring to the evidence, which appears sufficient to entitle the complainant to a decree, if the facts alleged entitle him to equitable relief, we proceed to examine the legal and equitable questions involved. Our statute provides that, "where any of the children of a person dying intestate, or their issue, shall have received from such intestate, in his lifetime, any real or personal estate, by way of advancement, and shall desire to come into the partition or distribution of such estate with the other parceners or distributees, such advancement, both of real and personal estate, shall be brought into hotchpot with the whole estate, real and personal, of such intestate; and every person so re- turning such advancement, as aforesaid shall thereupon be entitled to his or her just proportion of said estate." St. 1856, p. 1201. This provision is in harmony with the ancient customs of certain localities, and with the common law generally of England, with regard to lands descended in coparcenary, existing at the time of the settle- ment of the American colonies, and with the subsequent statute of dis- tributions of 22 and 23 Charles the Second. Bacon's Abr. title "Co- parceners," E. ; Id. title "Uses and Trusts," D ; Id. title "Executors and Administrators," K; Williams on Ex'rs, 907; Id. 916 to 924; 2 Kent's Com. 420, 421, and 422. The principle of the English statute is equality of distribution of the ancestor's personal estate among his children and their descendants;, and such is the object and purpose of our statute, including both the real and personal estate of the ancestor. An advancement is the giving by the intestate, in his lifetime, by anticipation, the whole or a part of what it is supposed the donee will be entitled to on the death of the party making it. And according to the decisions under the English and similar American statutes, the ancestor must have died intestate ; the gift must have been made in his lifetime, and completely executed on his part, with the inten- tion that the same should be the child's portion of his estate, or a part 724 PROBATE AND ADMINISTRATION. (Part 3 of such portion; the gift to the child or heir, made in the lifetime of the intestate ancestor, is prima facie an advancement, and is to be treated, in case the party to whom the advancement was made comes in for his distributive share with his coheirs, as a debt due from him to the estate, and may be deducted out of his share of the entire es- tate so brought together, if such share be sufficient for that purpose ; the widow takes her share of the personal estate, and, of course, her dower in the lands, without regard to advancements, and the balance only, after deducting the widow's share, is treated as estate for dis- tribution ; the child advanced or provided for will be entitled to par- ticipate with his coheirs in the estate for distribution only upon bring- ing in what he has received by way of advancement, and taking, with them, of the whole estate so united, his equal portion ; and the prop- erty or money advanced need not be returned in specie or kind, but is to be estimated according to its value at the time the advancement was made, and the heir so advanced and coming in will be entitled to his equal share of the whole, deducting the value of the advancement. 2 P. Williams, 440 ; Bacon's Abr. title "Executors and Administrators," K; Id. title "Uses and Trusts," D; WilHams on Ex'rs, pp. 916 to 924; 2 Story's Eq. Juris. §§ 1202 to 1206; Jackson v. Matsdorf, 11 Johns. (N. Y.) 91, 6 Am. Dec. 355; Bemis v. Stearns, 16 Mass. 200; Osgood V. Reed, 17 Mass. 356 ; Elliot v. Collier, 1 Ves. 16 ; 3 Atk. 259 ; 8 Ves. 55 ; Stearns v. Stearns, 1 Pick. (Mass.) 157. These rules, adopted by the courts in the construction and enforce- ment of a statute subsequently substantially incorporated into our law by legislative enactment, and consistent with the evident spirit and policy of the latter statute, are presumed to have been in the mind of the Legislature at the time of its adoption, and control its construc- tion. Campbell' v. Quinlin, 3 Scam. 289 ; Rigg v. Wilton, 13 111. 15, 54 Am. Dec. 419. The heir advanced may, if he choose, retain what he has received, but if he does he must be content, and relinquish all claim of par- ticipation with his coheirs in the distribution or partition of the an- cestor's estate. Necessarily, therefore, it is for him to elect whether he will retain what has been advanced to' him, and relinquish all right in the estate descended and for distribution, or will return or account for the ad- vancement, and take of the entire estate commingled, equally with the other heirs. Infants, for want of legal capacity, cannot exercise this power and right of election, and these infant defendants must be excluded from partaking in the distribution in this case, or the estate must remain in the hands of the administrator until they arrive at full age, unless equity will interpose, and, upon ascertaining what would be most beneficial for them under the facts, exercise for them this power. A party entitled to one only of several things, at his election, where other rights are involved, must exercise such right of election in a Ch. 4) PAYMENT OF LEGACIES AND SHARES. 725 reasonable time, and if he does not, or cannot for want of legal ca- pacity, in favor of other parties in interest, equity will do it for him, or bar him from a future exercise of the right. 2 Story's Eq. Jurisp. c. 30. Courts of equity have a paramount jurisdiction in cases of admin- istration and the settlement of estates, and may control courts of law in their action in the settlement and distribution of estates. 1 Story's Eq. Jurisp. c. 9 ; Williams on Ex'rs, pp. 1239, 1240 ; Lynch v. Rotan, 39 111. 19; Freeland v. Dazey, 25 111. 296; Townsend v. RadcHffe (de- cided June term, 1867) 44 111. 446. They have, also, a similar and plenary jurisdiction over the persons and estates of infants, and will, in the exercise of that jurisdiction, cause to be done whatever may be necessary to preserve their estates and protect their interests. 2 Story's Eq. Jurisp. c. 35 ; Cowls v. Cowls, 3 Oilman, 435, 44 Am. Dec. 708. In this case, if the value of the ad- vancements respectively does not exceed the share of the heir in the whole personal estate for distribution among the heirs, including the advancements, and the court upon a further hearing shall find it ben- eficial to the infant defendants to take their distributive shares and portions of the entire estate, instead of retaining their respective ad- vancements, it will not be necessary to touch the real estate descended, but the advancement may be deducted from the share of the party to whom it was made ; otherwise, in order to do complete equity to all, it may be necessary to make partition of such real estate, after disposing of the personal estate, according to the rights of the parties ; and for that purpose it may, perhaps, be necessary for the complainant to amend his bill. Decree reversed and cause remanded. Decree reversed."' B2 "Hotelipot is the bringing into the estate of an intestate an estimate of the value of advancements made by the intestate to his or her children, in order that the whole may be divided in accordance vpith the statute of de- scents. Where those who have received advancements decline to bring the same into hotchpot when legally required to do so. they may in proper pro- ceedings be excluded from participation in the division of the property of the intestate under the statute of descents." Whitefield, C. J., in Lindsley v. Mc- Iver, 57 Fla. 466, 48 South. 628 (1909). On bringing into hotchpot, see 80 Am. Dec. 565, note. A child bringing an advancement into hotchpot should be charged with its value "without interest, the general rule being, as is well settled, that advancements do not bear inter- est." Cardwell. J., in McCoy v. McCoy, 105 Va. 829, 840, 54 S. E. 995. 999 (1906). That collateral kindred do not have to bring into hotchpot property given them is held in Johnson v. Antriken, 205 Mo. 244, 103 S. W. 936 (1907). In Hackleman v. Hackleman, 199 111. 84, 92, 65 N. E. 113, 116 (1902), the court said: "The father in his lifetime, by an arrangement in the nature of a family settlement, designated certain of his real estate as the separate prop- erty of each of his three children. The children acquiesced in the arrange- ment and each of them entered into the actual possession of the lands so al- lotted to them respectively. Their rights, after the death of the father, ought, in justice and fairness, to be the same as if they had inherited the lands in common and afterwards made, by parol, the same allotment that their father made during his lifetime and in which they each acquiesced. We know of no equitable reason or rule why a decree should not be granted securing to the 726 PROBATE AND ADMINISTRATION. (Part 3 ELLIOT V. WILSON et ux. CSupreme Court of Missouri, 1889. 98 Mo. 379, 11 S. W. 739.) Black, J.^' Henry Elliot died intestate, leaving a widow and two children, namely, Mary, the wife of John A. Wilson, and Albert El- liot. At the final settlement of the estate there was in the hands of the administrator the sum of $1,794.25. Other sums had been paid by himx to the widow and children during- the course of the administra- tion. During the lifetime of the deceased he conveyed to his daugh- ter, Mary, 325 acres of land, and the deed contains a recital to the effect that she is to be charged therefor, as an advancement, with the sum of $11,200. The deceased advanced her money and personal property in the further sum of $1,000. He conveyed to his son, Al- bert, lands by way of an advancement to the amount of $9,205. The deceased left 400 or 500 acres of land, which has been divided between the children and the widow, the latter having elected to take a child's part. Albert filed in the probate court a petition setting up these facts, asking that he and his sister be charged with these advancements in real and personal property, and that the final distribution be made on that basis. The probate court made an order in accordance with the prayer of the petition. * * * The contention on the part of the plaintiffs in error is that advance- ments can be brought into hotchpot in the partition of real estate only, whether made in real or personal property, and that the probate court, in ordering the distribution of the personal estate in the hands of the administrator, cannot consider advancements. The subject of ad- vancements is regulated by statute in this and perhaps all of the states of this Union. * * * Our statute, therefore, must be our guide. It is in these words : "When any of the children of the intestate shall have received, in his lifetime, any real or personal estate by way of advancement, shall choose to come into partition with the other parceners, such advance- ment shall be brought into hotchpot with the estate descended." Sec- tion 2166, Rev. St. 1879. It is argued that ati "estate descended" can only mean real estate, as the personal property goes to the administra- tor, and that the term "parceners" has also a common-law meaning, and applies only to lands descended by inheritance ; and it is with these definitions of the terms that the conclusion is reached contended for by plaintiffs in error, namely, that the advancements can only be con- sidered in the partition of the real property descended. appellant the same relief that would have been given him had he and his brother and sister inherited the lands as co-tenants and made parol partition after the death of their father." By statute in some states written evidence that a gift is made as an ad- vancement is required. For a construction of such a statute, see Elliott v. Western Coal & M. Co., 243 111. 614. 90 N. E. 1104 (1910). 6 3 Part only of the opinion is given. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 727 There is a sense in which it may be said the personal property goes to the administrator. He must inventory the same, and such property constitutes the primary fund out of which the debts are paid. But un- der our law he has no personal interest in the property. He takes for the sole purpose of administration. When the debts are paid, if there is personal property on hand, and it is susceptible of division in kind, it must be "partitioned" by and under the proceeding pointed out in the administration law. Sections 246, 247, Rev. St. 1879. The heirs take this surplus of personal property by virtue of such a partition, without any bill of sale or other transfer from the administrator; so that it is not improper at all to say that personal property descends. But it is useless to discuss definitions of the terms "estate descended," "parcenary," and "partition." The legislature could make its own definitions, and it has done so in clear terms. The first section of our statute concerning descents and distribu- tions (section 2161) provides that when any person having title to any real or personal estate shall die intestate as to such estate "it shall descend, and be distributed in parcenary to his kindred, male and female, subject to the payment of his debts and the widow's dow- er, in the following course." The course of descent is then pointed out, and it is the same as to both real and personal property. And then follows the section before quoted, relating to advancements. It will be seen that personal property, does descend to the heirs, subject only to the payment of the debts and the widow's dower. And so, too, the personal property is distributed in parcenary. In these respects no distinction whatever is made between real and personal property. If a child has been advanced by either real or personal property, or money, his share in the personal and in the real estate must abate by the amount of the advancement. In other words, the children must be made equal, and it matters not whether this equality be brought about in the partition of the real estate or the distribution or partition of the personal property. Cases may arise where it will be necessary to take an account of advancements in the division of both the real and personal property. * * * We have said that bringing into hotchpot under our statute does not mean that the property or money advanced shall, in kind or specie, be thrown in with the property which has descended, but it is to be esti- mated and charged against the party according to its value at the time the advancement was made. Ray v. Loper, 65 Mo. 470.^* The party advanced does not relinquish his title to the particular property 54 "Property that has been advanced to a distributee will ordinarily be es- timated at its value at the time the advancement was made, in the absence of a statute to the contrary. However, if the gift, when made, was revocable or unenforceable, or if the donor remained in the possession and enjojnient of the property, then the value of the property is to be estimated as of the time when the gift became irrevocable or enforceable, or when the donee acquired pos- session of it, regardless of the time when the actual transfer occurred." 14 Cyc. 177, 178. 728 PROBATE AND ADMINISTRATION. (Part 3 by bringing it into hotchpot, but it is brought in for the purpose of being taken into consideration in making the parties equal in the es- tate. Jackson V. Jackson, 28 Miss. 674, 64 Am. Dec. 114. The court does not deal with the land advanced, but only with the value of it. So far as the jurisdiction of the probate court is concerned, it can, therefore, make no difference whether the advancement was by way of land, money, or specific personal property, for it is with the amount only of the advancement that the court deals. * * * The powder to make distribution includes the power to take account of all matters necessary to be considered in the ascertainment of the shares, and this includes the taking an account of the advancements, whether made by way of real or personal property. Doubtless the parties may be equalized in the partition of real estate, but they may also be made equal in the division of the personal property by the probate court. * * ♦ The judgment of the Kansas City Court of Appeals is reversed, and the cause is remanded to that court, with directions to affirm the judg- ment of the circuit court. All concur.'** HILTON V. HILTON. (Supreme Judi'cial Ck)urt of Maine, 1007. 103 Me. 92, 68 Atl. 595.) See ante, p. 486, for a report of the case. AMETRANO v. DOWNS. (Court of Appeals of New York, 1902 170 N. Y. 388, 63 N. E. 340, 58 L. R. A. 719, 88 Am. St. Rep. 671.) CuLLEN, J. On August 7, 1884, Margaret Shelley, now deceased, received by conveyance from her husband through an intermediary an undivided one-half in the premises known as number 22 Oliver street, in the city of New York. On March 12, 1891, she executed the following will: 5 6 "The classes of property that are chargeable with advancements depend largely upon the statutes directing descents. In some states advancements of personal estate will first be charged against the personal estate of the intes- tate to which the donee Is otherwise entitled, and advancements of real es- tate first be charged against his distributive share of the intestate's real es- tate. If the statute excludes the blending of real and personal estate, then an advancement will be charged against his distributive share of only that class of the intestate's estate to which the advancement belongs, and he will not be excluded from receiving his distributive share in the other class of estate; but where the statute does not show an intent to charge advancements first or altogether upon the class of property received, an advancement of realty will be charged against personal estate, or an advancement of personalty will be charged against real estate, so as not to allow the inheritance of any of the heirs to be diminished." 14 Cyc. ISO, 181. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 729 "I, Margaret Shelley, of the city, county and state of New York being of sound disposing mind and memory, do hereby make, publish and declare this to be my last will and testament. "First. I order and direct my funeral expenses to be paid as soon as shall be convenient after my decease. "Second. I give, devise and bequeath my one-half interest m the building known as number twenty-two (22) Oliver street, in the Fourth ward of the city of New York, unto my daughter Lizzie, wife of Emanuel Ametrano, of the city of Brooklyn, county of Kmgs, state of New York, and to her heirs and assigns forever. "I nominate, constitute and appoint Patrick J. Murphy, of the city of New York, and Charles Henry Hawkins, of the same place, or either of them, as executor of this my last will and testament. "In witness whereof, I have hereunto set my hand and seal this 12th day of March, in the year of our Lord one thousand eight hun- dred and ninety-one." . In 1896 condemnation proceedings were taken by the city of New York to acquire said number 22 Oliver street as a site for the erection of a schoolhouse. To these proceedings Margaret Shelley was not made a party. The net amount of the award after the satisfaction of the incumbrances on the property, amounting to $9,800, was in Feb- ruary 1897, paid to her husband, Michael Shelley, who thereupon deposited one-half of the award, $4,900, in the Washington Trust Company to the credit of his wife as her share of the property. In 1898 Margaret Shelley drew the accrued interest on the deposit and $400 on account of the principal. She died in February, 1899, leaving an estate consisting entirely of personalty. The plaintiff is the devisee named in the will as well as the administrator of the estate of the de- ceased, and in this action which is for a settlement of her accounts, claims that she is entitled under the will to the fund received by the testator in the condemnation. She has been defeated in this claim by both the courts below and now appeals to this court. The able opinion of the learned Appellate Division deals so fully with the question in dispute that there remains but little to be added by us. Had the deceased voluntarily alienated her property by deed it is entirely clear, under the authorities in this state, that the devisee would have no claim to the proceeds of the sale. Adams v. Winne, 7 Paige, 97; Beck v. McGillis, 9 Barb. 35; Gilbert v. Gilbert, 9 Barb. 532; Vandemark v. Vandemark, 26 Barb. 416; Philson v. Moore, 23 Hun, 152; McNaughton v. McNaughton, 34 N. Y. 201. "If a testa- trix devises real estate and sells the same before the will takes effect, the proceeds of the sale will become personal estate, and no court can substitute the money received by the testatrix for the land devised." In Adams v. Winne, supra, and Beck v. McGillis, supra, the testator had taken back a mortgage on the devised land as security for the purchase money, yet it was held that the devisee was not entitled to the mortgage. The only point to be considered therefore, is whether 730 PROBATE AND ADMINISTRATION. (Part 3 a different rule obtains in the case of involuntary alienation, by opera- tion of law, from that which prevails on a voluntary sale. Mr. Jar- man asserts that the rule is the same in both cases, and the English decisions cited by him sustain the doctrine of the text. Jarman on Wills, p. 163. We see no such difference between a voluntary and an involuntary sale of the devised land as justifies a distinction in principle in the application of the rule that where the testator has parted with the sub- ject of the devise, all claim of the devisee is lost. While there is no authority on the point in this state (there is said to be none in the country), the question presented is not without analogy in the rule which determines in cases of intestacy the character of the proceeds of sales by operation of law, whether they are to be considered as real or personal property. It is settled by a number of authorities that if the sale be made by execution or judicial decree in the lifetime of the intestate the proceeds are personalty and go to the next of kin, while if made after his death they are real estate and go to the heirs at law (Graham v. Dickinson, 3 Barb. Ch. 169; Denham v. Cornell, 67 N. Y. 556), except where the property belongs to an infant or to an incom- petent person, in which case the proceeds retain their original char- acter of realty. Sweezy v. Thayer, 1 Duer, 286 ; Horton v. McCoy, 47 N. Y. 21. It is urged by the learned counsel for the appellant that the con- demnation proceedings did not eft'ect the revocation of the will, be- cause there was no "other writing of the testator, declaring such revo- cation or alteration, and executed with the same formalities with which the will itself was required by law to be executed" (2 Rev. St. 64, § 42), nor any settlement, deed or other act by the testator (sec- tion 47). It may be conceded that there was no revocation of Mrs. Shelley's will, though I very much doubt whether the deceased was not divested of title by her own voluntary act. As she was not a party to the condemnation proceedings they were without force or effect as to her. If she lost her title it was because, by her voluntary accept- ance of the award, she estopped herself from claiming the property. Be this as it may, the case does not fall within the Statute of Wills. A specific devise or specific legacy rnay not be revoked, but unless the property devised or the thing bequeathed is found in the estate of the testator at the time of his decease the will is, necessarily, inoperative. The testatrix could not devise to the appellant an undivided half of the premises number 22 Oliver street, for she did not own it at her de- cease, and the question here presented is not whether the devisee shall receive the property devised, but whether she shall receive the fund which proceeded from the condemnation of that property. With this latter question the Statute of Wills does not deal. It does not pro- vide affirmatively that a conveyance or other disposition of bequeathed or devised property shall render the will in that respect ineffective ; it assumes that principle, and in sections 45, 46 and 47 merely limits the Ch. 4) PAYMENT OF LEGACIES AND SHARES. 731 Operation of the rule by providing that in three cases, to wit, an ex- ecutory contract, an incumbrance or mortgage and a conveyance or deed altering the testator's estate, but not wholly divesting his title, the devise shall be revoked only pro tanto. As said by the Chan- cellor in Adams v. Winne, supra, it left unchanged the existing law "that when the testator had converted real estate, which he had de- vised as such, into personalty, or had converted the subject of a spe- cific bequest of personal property into real estate, there was a revoca- tion of the will or an ademption of the bequest." The correctness of this doctrine has never been challenged. The judgment appealed from should be affirmed, with costs to both parties payable out of the estate. Judgment affirmed.' 50 In re TILLINGHAST. (Supreme Court of Rhode Island, 1901. 23 R. I. 121, 49 Atl. 634.) Petition for construction of a will. The facts are fully stated in the opinion. Blodgett, J. Upon the agreed statement of facts three questions arise under the fifth clause of the will of Ellen M. Perry, late of Bris- tol, deceased, concerning the disposition of the sum of $8,259.07, the cash balance now in the hands of the executor. The clause in ques- tion is as follows : 56 See In re Slater, [190G] 2 Ch. 480; In re Donsett, [1901] 1 Ch 398. Com- pare In re Freer. 22 Ch. D. 622 (1882) ; In re ^Yood, [1894] 2 Ch. 5< i. "Where the law recognizes a power of implied revocation by acts of tiie testator similar to those which must result in ademption, there may m some cases be no distinction between ademption and revocation ; but m this state where such implied revocation is forbidden by statute, the clauses of a will containing a bequest are not revoked by acts which may operate as an ademp- tion but l-emain as the legal declaration of the testator's intention to be car- ried out unless the execution after his death is impossible ; and so a present ^ift of a part onlv of a te.stamentary bequest, or a sale or conveyance to a third party of a part only of property specifically bequeathed, does not pre- vent the execution of the testator's intention as to the remainder, and the ademption is not total, but pro tauto." Hamersley, J., in Jacobs v. Button, 79 Conn. 3<>0. 365, 65 Atl. 150. 152 (1906). u ^u * ^. ^ v. ^- "^'here real estate devised by a will is conveyed away by the testator but before his death is reconveyed to him, there is no ademption imder modern statutes allowing after-acquired realty to pass by will. Woolery v. Woolery, 48 lud. 523 (1874). See, also, sections XXIII, XXIV, of the Wills Act in the Appendix, post. p. 765. But see Phillippe v. Clevenger, ante, p. 290. "A total ademption by acts of a testator occurs in two cases only: (1) ^M^on he <^ives in his lifetime to a legatee what he has left him in his will; or (2) when before his death he so deals with the subject of the bequest as to ren- der it impossible to effect the transfer or payment which the will directs." Baldwin, J., in Connecticut T. & S. Deposit Co. v. Chase, 75 Conn. 683, 690, 55 Atl. 171, 174 (1903). That the testator has agreed with a corporation to take its note for some of its corpora ue stock bequeathed in his will does not work an ademption, where the testator dies before the arrangement is carried out, is held in In re Frahm's Estate, Roddewig v. Steffen, 120 Iowa, 85, 94 N. W. 444 (1903). 732 PROBATE AND ADMINISTRATION. (Part 3 "Fifth. Whereas I am or may be entitled to a certain interest in the estate of my mother, Ellen M. Dabney, deceased, which is now in the hands of the Fidehty Insurance, Trust and Safe Deposit Company, Now I give, devise, and bequeath the same to the Fidelity Insurance, Trust and Safe Deposit Company, in trust, to keep the same invested, and to pay the net income thereof to my husband, Raymond H. Perry, for the term of his natural life, and upon his death then to pay the in- come thereof to his daughter, Frances Raymond Perry, for the term of her natural life, and upon her death then to hold the said estate in trust upon the same terms of trust as are above provided for in the fourth item hereof for the estate over which I have a power of ap- pointment under the will of my said father, Charles H. Dabney." These questions are : (1) Does the language of said fifth clause constitute a specific leg- acy? (2) If so, has such legacy been in whole or in part adeemed? (3) Does the share of Mrs. Perry in the estate of her sister, Frances E. Rhett, come within the provisions of said fifth clause of the will of Ellen M. Dabney? 1. We are of the opinion that the bequest under consideration is a specific bequest. The language used is substantially similar to the language used by the court in Dean v. Rounds, 18 R. I. 437, 27 Atl. 515, 28 Atl. 802, as constituting a specific bequest. It absolutely ap- propriates a fund clearly defined, and for a long time invested in cer- tain securities easily capable of identification, but whose exact cash value was not known, to one definite object. It was, therefore, an ap- propriation of the fund itself, rather than an attempt to measure the gift by the amount of an uncertain sum. Towle v. Swasey, 106 Mass. 106 ; Bethune v. Kennedy, 1 Myl. & Cr. 114 ; Stephenson v. Dowson, 3 Beav. 349 ; Shuttleworth v. Greaves, 4 Myl. & Cr. 37. 2. The will of Ellen M. Perry was executed on July 28, 1898, and she died on May 28, 1899. On May 11, 1899, she executed the fol- lowing receipt to the trustee under Mrs. Dabney's will, as follows : "Received of the Fidelity Insurance, Trust and Safe Deposit Com- pany, trustee, the sum of eleven thousand five hundred and fifty-eight and ®^/ioo dollars in kind as set forth in the schedule hereunto annexed, the same being in full of principal and income awarded to me as per the adjudication filed in the Orphans' Court, December 30th, 1898, upon the account of the said The Fidelity Insurance and Safe Deposit Company, trustee, as aforesaid. [Signed] Ellen M. Perry. "Witnesses at signing: "Nellie De Wolf Archer. "Abram O. Powell." It is agreed that all the securities therein referred to were then de- livered to Mrs. Perry, except the two mortgages on property in Phila- delphia, which were duly assigned to her by the trust company, but which she directed the trust company to retain in its possession and to Ch. 4) PAYMENT OF LEGACIES AND SHARES. 733 proceed to collect for her account. It is conceded, too, that with the exception of these mortgages all the securities enumerated in this schedule were converted by Mrs. Perry to her own uses in her life- time. We are consequently of the opinion that the legacy was thereby pro tanto adeemed, since the specific items of the bequest no longer exist. In Kenaday v. Sinnott, 179 U. S. 606, 617, 21 Sup. Ct. 233, 237, 45 L. Ed. 339, decided in 1900, Chief Justice Fuller says : "The satisfac- tion of a general legacy depends on the intention of the testator as in- ferred from his acts, but the ademption of a specific legacy is effected by the extinction of the thing or fund bequeathed and the intention that the legacy should fail is presumed." In Tomlinson v. Bury, 145 Mass. 347, 14 N. E- 137, 140, 1 Am. St. Rep. 464, decided in 1887, the court say: "A specific legacy is one which separates and distinguishes the prop- erty bequeathed from the other property of the testator so that it can be identified. It can only be satisfied by the thing bequeathed; if that has no existence when the bequest would otherwise become operative, the legacy has no effect. If the testator subsequently parts with the property, even if he exchanges it for other property or purchases other property with the proceeds, the legatee has no claim on the estate for the value of his legacy. The legacy is adeemed by the act of the testator." This doctrine has long been well settled. Indeed, the rule as to ademption was laid down very clearly by Lord Chancellor Thurlow in Humphreys v. Humphreys, 2 Cox, 185, decided in 1789, as follows : "That the only rule to be adhered to was to see whether the subject of the specific bequest remained in specie at the time of the testator's death, for if it did not, then there must be an end of the bequest, and that the idea of discussing what were the particular motives and in- tention of the testator in each case, in destroying the subject of the be- quest, would be productive of endless uncertainty and confusion." And see Stanley v. Potter, 2 Cox, 180. As to the two mortgages aforesaid, we are of the opinion that the mere act of transferring them to her own name was not an ademption of them; for it is conceded that they were in specie at the time of her death, and the exact amount of their proceeds is clearly known and is held by the executor as a distinct fund. Lee v. Lee, 27 L. J. Ch. 824 ; Moore v. Moore, 29 Beav. 496; Dingwell v. Askew, 1 Cox, 427; Clough v. Clough, 3 Myl. & K. 296 ; Ashburner v. MacGuire, 2 Bro. C. C. 108 ; Barker v. Rayner, 5 Madd. 217, affirmed in 2 Russ. 122 ; Basan v. Brandon, 8 Sim. 171. It is true that these securities are described as being in the hands of the trust company; but in Prendergast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049, decided in 1899, which was also a case of ademption, the Vice Chancellor held that "the place of deposit was merely used as de- scriptive of the thing bequeathed. It was used to identify the particu- 734 PROBATE AND ADMINISTRATION. (Part 3 lar money given, and it is entirely settled that where the place is merely descriptive the removal of the thing to another place is immaterial." And, finally, we are of the opinion that the terms of the fifth clause, creating this specific legacy, should be strictly limited to the interest which Mrs. Perry had in the estate of her mother, Mrs. Dabney, with- out including the interest which came to Mrs. Perry as the heir of her sister, Mrs. Rhett. A decree may be entered in accordance with this opinion.^^ CARMICHAEL v. LATHROP. (Supreme Court of Michigan, 1896. 108 Mich. 473, 66 N. W. 350, 32 L. R. A. 232.) Hooker, J. The will of Henry P. Pulling was executed in June, 1872. After giving his wife the use and enjoyment of all of his prop- erty during life, in lieu of dower, it provided that — "Second. All the remainder of the estate of, in, and to my said prop- erty, both real and personal, subject to the said life estate of my said wife, I give, devise, and bequeath to my three daughters, Ada M. La- throp, of Detroit, Michigan, Emily Lloyd, of Albany, New York, and Marilla B. Carmichael, of Amsterdam, New York, and to their heirs forever, share and share alike. * * * "Third. I hereby authorize and empower my hereinafter named executors to sell and convey in fee simple absolute, in their discretion, any portion or all of my real estate, with a view of otherwise invest- 57 In Peirce, Petitioner, 2.5 R. I. 34, 54 Atl. 5SS (1903). a bequest of stoclf in the Rhode Island National Bank was held to pass stock in the United National Bank, which latter bank was a reorganization and consolidation of the former bank and three others. The court said: "There was no ademption of the leg- acy of the stock in the Rhode Island National Bank, because, though in form a sale, the stock was not in fact sold, but exchanged." But see In re Lane, 14 Ch. D. 856 (1880). "No doubt a bequest may be so worded as to show that the subject-matter was to pass, whatever the condition with respect to investment, or other- wise, in which it might be found at the testator's death. And what is the ■proper effect to be given to the gift of a sum of money mentioned or de- scribed as invested in a particular way depends upon the question whether, according to the true construction of the will, it must be taken that the testator intended the legatee to have the money however it might be invested, or, in other words, whether the condition of the subject in reference to in- vestment was the governing part of the description of the subject-matter of the bequest." Joyce, J., in In re Slater, [1906] 2 Ch. 480, 484. See Pren- dergast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049 (1899) ; In re Bradlev's Will, 73 Vt. 253, 50 Atl. 1072 (1901) ; Nusly v. Curtis, 36 Colo. 4G4, 85-Pac. 846, 7 L. R. A. (N. S.) .592, 118 Am. St. Rep. 113 (lOOG). In In re Gillins, [1909] 1 Ch. 345. the will gave a legatee 25 shares of stock in a certain corporation. At the date of the will shares in that cor- poration were £50 shares with £5 credited as paid up. At the death of the testator the shares of the corporation were £10 shares with £1 credited as paid up. It was held that the legacy was general, and so only 25 £10 shares passed to the legatee. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 735 ing the proceeds thereof, or to change my present securities into real investments. But such change is to be done with the consent of my wife, and the approval of the probate court or a court of chancery. And this power and authority of so selling and conveying in fee simple absolute my real estate is hereby made notwithstanding the bequests which are given to my daughters, which bequests are hereby made subservient to said power. And I do hereby direct my executors to invest all my moneys and property, and the avails of all real estate so sold, in first-class, unincumbered real estate mortgages, or in United States bonds or Michigan state bonds, said securities to be held and retained by them, and the income thereof paid quarter yearly, or, at the furthest, every half year, by them, to my said wife, until her decease, and on such death my estate is to be closed up and distributed as pro- vided for in the second clause of this my will. "And, lastly, I do hereby appoint my brother Abraham C. Pulling, of New York City, my brother-in-law William P. Bridgman, of Detroit, and my son-in-law Joseph Lathrop, of Detroit, to be the executors of this my last will and testament, hereby revoking all former wills by me made." Mr. Pulling died in July, 1890, and the will was probated August 19, 1890. Joseph Lathrop qualified as executor. The probate records show that at the time of the testator's death he was seised in fee of real estate to the value of $65,000, that there was due to him upon land contracts $45,000, that he owned other personal property to the amount of $30,000, and that there were no debts or claims against the estate. Previous to the death of the testator, he conveyed to each of the defendants a parcel of real estate; that conveyed to Mrs. Lloyd being alleged to be worth $14,000, and that received by Mrs. Lathrop said to be worth $10,000. There is evidence tending to show that he intended to repair the house upon Mrs. Lathrop's property, thereby making the gift to her equal to that of Mrs. Lloyd, and that he in- tended to do as well by his other daughter, the complainant ; but her husband became embarrassed, and finally went to state's prison, and she never received a home, as the others had. Her father, however, gave to her money from time to time, for her support, which aggre- gated $1,100. Soon after the probate of the will, litigation arose be- tween the widow and children, which was finally adjusted, and the property was divided, the parties executing the necessary deeds and other instruments to carry it into effect. The accounts of Lathrop, the executor, were settled, and he was discharged. There is now some land held in common by the three sisters. The complainant files the bill in this cause, alleging that the lands conveyed by the testator to her two sisters should be treated as ademp- tions of their respective legacies, and that they should be required to account to her for her share thereof. She alleges that her father so intended, and that they recognized the justice thereof, and promised to see that she received the same, and, relying upon such promises, she 736 PROBATE AND ADMINISTRATION. (Part 3 consented to the settlement of the estate, expecting that her sisters would pay her an amount equal to her share of said parcels so received by them. It seems tacitly agreed that this record involves only the question whether the property conveyed to Mrs. Lloyd and Mrs. La- throp before the testator's death should be applied upon their respective interests under the will, or, in other words, as the counsel for the com- plainant state it, whether it can be treated as an ademption or a satis- faction pro tanto of their bequests. We are perhaps at liberty to as- sume from the pleadings and admitted facts that the defendants re- ceived sufficient personal property under the will to more than cover the claim of the complainant ; in other words, that they have received bequests to such amount in addition to any lands that they may have received. As to such personal property, the will made the sisters lega- tees, although they may have been also devisees as to the real estate, if the contention of the defendants' counsel is correct. In other words, they are none the less legatees, taking bequests of personal property, because one and the same provision of the will gave them both per- sonal and real property. Hence we need spend no time upon the ques- tion whether the terms of the will made them devisees, as there are legacies sufficient to support the ademption contended for. We can therefore eliminate some of the questions which arise where an at- tempt is made to apply the doctrine of satisfaction to a devise of real property by reason of the conveyance to the devisee of other property. The case is one where it is claimed that a gift of personal property by will may be satisfied by a conveyance of land, when such is the clear intention of the testator. If a person should bequeath to another a sum of money, and, pre- vious to his (the testator's) death, should pay to such person the same amount, upon the express understanding that it was to discharge the bequest, the legacy would be thereby adeemed. But, in the absence of an apparent or expressed intention, that would not ordinarily be the effect of the payment of a sum of money to a legatee under an ex- isting will. Generally, such payment would not affect the legacy. To this rule there is an exception, where the testator is a parent of or stands to the legatee in loco parentis. In such case the payment would be presumed to be an ademption of the legacy. At first blush this impresses one as an unreasonable rule, as it puts the stranger legatee upon a better footing than the testator's own son, and judges and law- writers have severely condemned the rule. See 2 Story, Eq. Jur. §§ 1110-1113. It has been said that "this rule has excited the regret and censure of more than one eminent modern judge, though it has met with approbation from other high authorities." 2 Williams, Ex'rs (7th Am. Ed.) *1194. Story's condemnation of it is strong, but he adds : "We must be content to declare, 'Ita lex scripta est.' It is es- tablished, although it may not be entirely approved." And Worden. J., in Weston v. Johnson, 48 Ind. 5, says, "Whatever may be thought of the doctrine, it is thoroughly established in English and American Ch. 4) PAYMENT OF LEGACIES AND SHARES. 731 jurisprudence." Shudal v. Jekyll, 2 Atk. 518 ; Ex parte Pye, 18 Ves. 140, 2 White & T. Lead. Cas. Eq. (4th Ed.) 741; Van Houten v. Post, 33 N. J. Eq. 344. With a refinement of logic, characteristic, the early English judges held that the intention to adeem a legacy is to be presumed from the advancement of a part of the legacy, on the theory that it was the tes- tator's right to do so, and that he must be presumed to be the best judge of the propriety of a revocation (Ex parte Pye, 18 Ves. 140) ; but the rigor of this rule has been relaxed, and cannot now be said to be the law. Pym v. Lockyer, 5 Mylne & C. 29, 55 ; Montague v. Mon- tague, 15 Beav. 565; 2 Williams, Ex'rs (7th Am. Ed.) *1195; Hop- wood V. Hopwood, 7 H. L. Cas. 728; Wallace v. Du Bois, 65 Md. 153, 159. And see cases cited in 1 Pom. Eq. Jur. § 555, note 3.* There are cogent reasons in support of the rule stated — i. e., that payment to a son adeems the legacy— which is based on the theory that such leg- acy is to be considered as a portion, and that the father's natural in- cHnation to treat his children alike renders it more probable that his payment was in the nature of an advancement than a discrimination in favor of one, oftentimes the least worthy. Double portions were considered inequitable, and upon this the doctrine rests. Suisse v. Lowther, 2 Hare, 424, 433. While the authorities are a unit that a legacy by one in loco parentis will be adeemed by payment, in the absence of an apparent or ex- pressed intent to the contrary, the doctrine was early restricted. Among other limitations was the rule that the presumption could not be applied to a residuary bequest, because the court would not presume that a legacy of a residue, or other indefinite amount, had been satis- fied by an advancement, as the testator might be ignorant whether the benefit that he was conferring equaled that which he had already willed. Freemantle v. Bankes, 5 Ves. 85 ; Clendening v. Clymer, 17 Ind. 155; 2 Story, Eq. Jur. § 1115. This exception fell with the dis- carding of the rule that satisfaction must be in full. Pym v. Lockyer, 5 Mylne & C. 29 ; Montefiore v. Guedalla, 1 De Gex, F. & J. 93. Again, it was held that it could not be applied unless the advancement was ejusdem generis with the legacy. See 2 Story, Eq. Jur. § 1109. * "It seems to have been originally held that complete ademption resulted, even when the subsequent payment was less than the amount of the legacy — this on the theory that the legacy is the child's portion, and that a subsequent advancement is in lieu of such portion. See Hartop v. Whitmore. 1 P. Wms. 681 (1720); Clarke v. Burgoine, 1 Dick. 353 (1762); Ex parte Pye, 18 Ves. 153 (1811). But this view is no longer recognized. See 2 Story, Eq. Jur. | 1111; Paine v. Parsons, 14 Pick. (Mass.) 318 (1833). "The question as to whether a testator is to be considered as standing in loco parentis depends upon the circumstances of each particular case. The test is whether the testator means to put himself in the situation of the lawful father of the child, with reference to the father's office and duty of making provision for the child. 2 Wms. EJx'rs, 1338. Great-uncles, uncles, grandfathers, and grandmothers are not to be considered In loco parentum unless such is their intention. Id. 1339." Gardner on Wills, 569, note. Cost. Wills — 47 738 PROBATE AND ADMINISTRATION. (Part 3 Counsel for the defendants contends that "the conveyance of real estate after the making of a will is held not a satisfaction of any leg- acy, in whole or in part, even though that was the clear intent of the testator," and he cites several authorities to sustain the proposition. In Arthur v. Arthur, 10 Barb. (N. Y.) 9, it was held that "a convey- ance made subsequent to a devise of land is not a revocation or satis- faction of a devise of other lands to the grantee. But, if the convey- ance be of a portion of the same land, that is a revocation pro tanto." This was a case where the court found that the grantor intended and the grantee expected the land conveyed would be in lieu of the gran- tee's share under the will. It was said that to hold that the conveyance was a satisfaction was to hold that the will might be revoked by impli- cation, which could not be tolerated under the statute of frauds. This case contains an elaborate discussion of the subject, and cites many of the earlier authorities bearing upon it. The Court of Appeals considered the subject in Burnham v. Com- fort, 108 N. Y. 535, 15 N. E. 710, 2 Am. St. Rep. 462. In this case it was claimed that a devise of real property was satisfied by the pay- ment of money, on the express understanding, evidenced by the receipt of the devisee, that it was received as a part of her father's estate. The court said that, to sustain such claim, they must hold that it op- erated as a revocation of the will, which would contravene "the spirit, if not the letter," of the statute of frauds, and that the proposition "lacked support in principle as well as authority." The opinion then asserts that "the rule of ademption is pr.edicable of legacies of personal estate, and is not applicable to devises of realty." After discussing the question of intention, and intimating that, while a presumption of intention that the gift should be in satisfaction would exist if the case were one involving a legacy, it would not in case of a devise, it pro- ceeds to show that the statute of frauds, which extends to wills, was an unsurmountable barrier to the application of the rule contended for, as to devises. Two members of the court dissented. The Supreme Court of South Carolina, in the case of Allen v. Allen, 13 S. C. 512, 36 Am. Rep. 716, had occasion to consider a case where the legatees were also devisees, as in the present case. It was held that payments of money were to be considered as made in satisfaction of the legacies, but not the devises. The court said: "It would seem that, upon the same principles, devises of real estate ought likewise to be adeemed (if such a term can, with any propriety, be applied to devises) by subsequent payments to the devisees with the intention of producing that result ; but it is conceded that the doctrine of ademption has never been applied to devises of real estate, and, in the absence of any authority, we do not feel justified in disregarding the well-established line which has for ages been drawn between real and personal estate, even though we may be thereby compelled to thwart the obvious intention of the testator, and disturb that distribu- tion of his property which he thought was proper and just to hifs de- Ch. 4) PAYMENT OF LEGACIES AND SHARES. 739 scendants. For, while the intention of the testator is the cardinal rule of construction of a will, yet such intention cannot be given effect where it is in conflict with the rules of law. A devise of real estate cannot, like a pecuniary legacy, be affected by any subsequent trans- actions between the testator and the devisee, but must stand until it is revoked or altered in the manner prescribed by law." Attention is also called to the case of Swails v. Swails, 98 Ind. 511. In this case land was devised as follows : 88 acres to J. ; 36 acres to N. Subsequently the testator conveyed portions of the same land as follows, viz. : 60 acres to J., the son ; and 40 acres to N., a grandson. It was held that the deeds did not revoke the devise of the 24 acres to N., and that the doctrine of ademption does not apply to specific de- vises of real estate, nor where the devisor does not stand in loco pa- rentis. The case followed Weston v. Johnson, 48 Ind. 1, where it was held that the doctrine of ademption of legacies by advancement to the legatee by the testator in his lifetime has no application to devises of real estate. Again, in Campbell v. Martin, 87 Ind. 577, it is said, "But we know of no reason whatever for the extension of this doctrine, and making it applicable to devises of real estate." In Marshall v. Rench, 3 Del. Ch. 239, the court admits that in some cases a conveyance to a devisee after the making of the will would operate in like manner as the ademption of a legacy — e. g., where the conveyance to the devisee is of the same land — because "by such a conveyance the testator executes his devise, precisely as the settlement of a portion on a legatee is an ademption of the legacy." The court adds that "the conveyance to a devisee of lands other than those de- vised, or of an interest in lands different from that devised, has never been held an implied revocation of the devise." The authorities cited in support of this are all ancient, except Arthur v. Arthur, hereinbe- fore discussed. We mention at this point the fact that all of these were cases where the attack was made upon a devise, merely, except the South Carolina case, and in that case the claim of ademption was sustained as to the legacies. 2 Woerner, Adm'n, p. 978, is cited in support of defendants' con- tention. This author dismisses the subject with the statement that — "Specific legacies are said not to be affected by the subsequent ad- vancement of a portion, because the gift of specific articles of personal property by a father to his child is not presumed to be intended as a portion. And, for the same reason, real estate devised is held not to come within the rule; but this exception is repudiated in Virginia, and unfavorably commented on elsewhere." See Hansbrough v. Hooe, 12 Leigh (Va.) 316, 37 Am. Dec. 659. The authorities cited have been commented on at length for the purpose of showing that they differ from the case before us, inasmuch as they were cases where it was sought to treat conveyances as satis- factions of devises. This is not a case where an attempt is made to 740 PROBATE AND ADMINISTRATION. (Part 3 deprive a devisee of title to land willed to him, but it is claimed that the presumption that a bequest to a son is satisfied pro tanto by a gift is not to be applied where the gift is of land instead of money, or other personal property ejusdem generis. In Richards v. Humphreys, 15 Pick. (Mass.) 140, will be found the following dictum of Shaw, C. J. : "We have seen that ademption depends solely upon the will of the testator, and not at all upon the ability of the party receiving to give a valid discharge. Had the money been paid to trustees or others for her benefit, without any act or consent of hers, if given expressly in lieu or in satisfaction of such legacy to her, it would have operated as an ademption. Had he purchased a house or other property in her name, and for her benefit, with the like intent and purpose ex- pressed, it would have had the same effect." It is apparent that the law looks upon a legacy to a son as a setting off of his portion. Also, it is plain that a subsequent gift, unless it be of real estate, is presumed to be in satisfaction pro tanto of the legacy. It is also settled that whether the gift is to be considered an ademption of a legacy must depend upon the intent of the testator alone. A gift of personal property to a son may be shown not to have been so in- tended, but the burden is upon the legatee. Ford v. Tynte, 2 Hem. & M. 324. A gift to a stranger may be shown to have been intended as an ademption, but here the presumption is the other way, the burden being upon the administrator to show such intent. There can be no doubt that a testator's conveyance of real property may constitute an ademption, if he so intends it, e. g., where he ex- presses the intent in the conveyance, and possibly in other ways. If so, the only significance of the doctrine ejusdem generis is its effect upon the presumption. The doctrine that the property conveyed must be ejusdem generis appears to be the only ground upon which it can be said that the conveyance in this case should not be treated as satis- faction pro tanto. It has been said in early cases that "when the gift by will and the portion are not ejusdem generis, the presumption will be repelled. Thus, land will not be presumed to be intended as a satis- faction for money, nor money for land." Bellasis v. Uthwatt, 1 Atk. 428; Goodfellow v. Burchett, 2 Vern. 298; Ray v. Stanhope, 2 Ch. R. 159 ; Saville v. Saville, 2 Atk. 458 ; Grave v. Earl of Salisbury, 1 Brown, Ch. 425. But see Bengough v. Walker, 15 Ves. 507. The courts have not accepted without protest the proposition that the application of the presumption arising from the relation of parent and child should depend upon the similarity of the property willed and donated, and it has been asked "why, if a gift of a thousand dol- lars will satisfy a legacy of that amount, it should not equally be sat- isfied by a donation of lands of equal value." And see Pym v. Lock- yer, 5 Mylne & C. 44. But all agree that ademption is a matter of intent. In Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761, the court said, "This whole class of cases depends upon the intention;" Ch. 4) PAYMENT OF LEGACIES AND SHARES. 741 citing Hoskins v. Hoskins, Free. Ch. 263, and Chapman v. Salt, 2 Vern. 646. Again, it was said : "It is laid down generally that a re- siduary legacy will not adeem a portion due under a settlement, because it is entirely uncertain what that legacy may be. But this rule, like the rest, yields to intention" — citing Rickman v. Morgan, 1 Brown, Ch. 63, 2 Brown, Ch. 394." In Bengough v. Walker, 15 Ves. 507, it was held that a bequest of a share in powder works, charged with an annuity, was a satisfaction of a portion of i2,000, when it was so in- tended. See, also. Gill's Estate, 1 Pars. Eq. Cas. (Pac.) 139. It is forcefully argued that these cases make obsolete the doctrine of ejusdem generis. Whether they do or not, they certainly show that it must yield to the testator's intent. We cannot, therefore, accede to the proposition of counsel for the defendants "that conveyance of real estate will not be held a satisfaction of any legacy, in whole or in part, even though the intent of the testator is clear." We think the testimony shows the testator's intent. There may be testimony in the record that was incompetent to prove it, but there is sufficient that was com.petent. The widow was conversant with the entire transaction, and the defendants' statements are admissions of their knowledge of such intentions. It is contended that "the allowance of a conveyance of property as a satisfaction. of a devise or legacy would be equivalent to a revocation of the will in part, and it would have to be proven in the manner pro- vided by our statute for the revocation of wills, that is, by the destruc- tion of the will, or the making of a new will." 2 How. Ann. St. § 5793 ; Lansing v. Haynes, 95 Mich. 16, 54 N. W. 699, 35 Am. St. Rep. 545. We think it should not be called a revocation of the will. The defendants' bequests are permitted to stand unquestioned, and matter in discharge of the obligation (i. e., payment) is shown. The will is not overturned or revoked. It is satisfied. We think the prayer of the bill should be granted, and the record should be remanded to the circuit court for the county of Wayne, in chancery, for further proceedings. Decreed accordingly." B8 "It Is now held that whether a residue shall be held to be adeemed or not Is a question of intention, as In other cases of ademption. Montefiore V. Guedalla, 6 Jur. (N. S.) 329; Williams on Executors, 1334, 1335." The Ordinary, in Van Houten v. Post, 32 N. J. Eq. 709, 712 (1880). But see Davis V. Whittaker. 38 Ark. 435 (1882). 5 9 Compare In re Youngerman's Estate, 136 Iowa, 488, 114 N. W. 7 (1907). An advancement to a husband by his father-in-law may be held to be an advancement to the wife. See McCabe v. Brosenne, 107 Md. 490, 69 Atl. 259 (1908). And even, it seems, though the wife is ignorant of the deed of gift. Ireland v. Dyer (Ga.) 67 S. E. 195 (1910). On whether a subsequent benefit to a legatee to whom the testator does not stand in loco parentis Is an ademption or satisfaction of the legacy, see 15 Am. & Bng. Ann. Cas. 248, note. 742 PROBATE AND ADMINISTRATION. (Part 3 IZARD V. HURST. (High Court of Chancery, 1697. 2 Freem. C. C. 224.) See ante, p. 360, for a report of the case.^** JAQUES V. SWASEY. (Supreme Judicial Court of Massachusetts, Essex, 1891. 153 Mass. 596, 27 N. B. 771, 13 L. R. A. 566.) Appeal, by residuary legatees under the will of Anna Jaques, from a decree of the probate court allowing to William H. Swasey, the ex- ecutor, the sum of $10,000, paid by him to Harriet M. Downs as a leg- acy under the will. W. Allen, J. The appellants contend that the sum of $3,000, paid by the testatrix in her lifetime to Mrs. Downs, should be deducted from the legacy of $10,000 to her. The payment was made several CO "Equity leans against doulile portions, and the general rule is that wherever a legacy given by a parent, or a person standing in loco parentis, is as great as or greater than a portion previously secured to the legatee upon marriage or otherwise, a presumption arises that the legacy was in- tended as a satisfaction of the portion. If the legacy is less than the portion, a presumption arises that it was intended as a satisfaction pro tauto. And a share of residue is on the same footing as a pecuniary legacy as regards the rule against double portions. Thynne v. Earl of Glengall, 2 H. L. C. 131." Swinfen Eady, J., in In re Blundell, [1906] 2 Ch. 222, 226, 227. "It is not every gift, every provision made by a parent for the benefit of his child, that is a portion. I thinli that a portion implies something that, having regard to the circumstances of the parties, may be called a sub- stantial provision. If I had left my son a £10,000 legacy, he would not be called to account for every £5 note that I gave him on his birthday. On the other hand, tlie term 'portion' does not imply that there is a solemn marriage settlement, or the purchase of a business or an estate. Any considerable sum of money might be regarded as a portion. See Leighton v. Leighton, L. R. 18 Eq. 458." Maitland's Equity and the Forms of Action at Common Law, 188. "In In re Furuess, [1901] 2 Ch. 346, a testator by his will made in 1885 gives £20.000 to his daughter, directing that £15,000 [thereof] shall be settled on certain trusts for her and her children. On her marriage in 1893 he set- tles £7,300 consols upon her and her children, but the trusts are not the same. It is undisputable that as regards her interest there is ademption pro tanto. The question is whether it is to be treated as in ademption of the settled £15,000 or of the unsettled £5,000. Joyce, J., holds that it is in partial ademption of the former. The case shows the strength of this pre- sumption [that a benefit given by the will is meant to be a satisfaction of a portion debt]." Id.. 190. In In re Heather, [1906] 2 Ch. 230, where the testator's will gave a £3,000 legacy to hi& adopted daughter and the residue of his estate to that adopted daughter and to a person to whom he did not stand in loco parentis, and where the testator, after the date of his will and codicils gave the daughter £1,000 to invest for her own benefit, it was held that neither the £3,000 legacy nor the residuary gift to the daughter was pro tanto adeemed, be- cause (per Swinfen Eady, J.) "a rule designed to produce equality among children cannot be extended so as to reduce their shares for the benefit of a stranger."' Ch. 4) PAYMENT OF LEGACIES AND SHARES. 743 years before the will was executed, and cannot operate as an ademp- tion or payment or advancement pro tanto of the legacy. To give such an effect to it would be to vary the terms of the will, and to show by parol that the testatrix intended a legacy of $7,000, and not $10,- 000. Payment of a legacy provided for in a will made by the testa- tor before the will takes effect by his death is regarded as consistent with and carrying out the intention expressed in the will ; but to ap- ply a gift made before the execution of the will in full or part satis- faction of a legacy given by the will necessarily varies the terms of the legacy, and allows the intention expressed in the will to be con- trolled by a different intention proved by parol. If a gift is made by a parent to a child, it may be presumed to be an advancement of a portion of the parent's estate which he has given to the child by will, or which the law may give if the parent dies intestate; but if, after making such gift, the parent by will fixes the portion of the child, the former gift cannot be taken as a part of the portion unless made so by the will. It cannot by possibility be an ademption of the legacy. If it can operate as a satisfaction of the legacy, it must be upon other grotmds than the right of the testator to adeem a legacy. Paine v. Parsons, 14 Pick. 318 ; Richards v. Humphreys, 15 Pick. 133 ; Jones V. Richardson, 5 Mete. (Mass.) 247, 253; Hartwell v. Rice, 1 Gray, 587, 594. See authorities collected in note to Chancey's Case, 2 White & T. Lead. Cas. (4th Am. Ed.) p. 783 et seq. It has been held that a payment by a father to a child will operate as a satisfaction pro tanto of a legacy to the child in a subsequent will, when it is received by the child under a promise by him that it shall be so applied. In that case the money is received by the child as a part of the portion to be desig- nated in the will, and it would be fraudulent in him not to allow it in satisfaction pro tanto of the legacy given in pursuance of the under- standing. Upton v. Prince, Cas. t. Talb. 71 ; Taylor v. Cartwright, L. R. 14 Eq. 167, 176;Yundt's Appeal, 13 Pa. 575, 53 Am. Dec. 496; Musselman's Estate, 5 Watts (Pa.) 9; Kreider v. Boyer, 10 Watts, 54; Rogers v. French, 19 Ga. 322. The real question in the case at bar is whether it was understood between Miss Jacques, the testator, and Mrs. Downs, when the $3,000 was given by the former to the latter, that that sum was paid and re- ceived as part of a portion to be given to Mrs. Downs by will, and was pro tanto in satisfaction of the subsequent legacy. In the year 1874, Mrs. Downs, then Miss Smith, went to live with Miss Jacques, who was a single woman, well advanced in life, as her daughter, with the understanding that if she continued to live with Miss Jacques during her life Miss Smith would be treated as a daughter, and would be provided for in the will of Miss Jacques by a legacy of $10,000. As regards advancements of a portion. Miss Jacques stood practically in loco parentis to Miss Smith, and it may be assumed that the rules that apply to advancements and legacies between parent and child applied to them. Miss Jacques made a will about the time Miss Smith 744 PROBATE AND ADMINISTRATION. (Part 3 went to live with her, in which she gave "to Harriet M. Smith, my adopted daughter, provided she Hves with me until my decease, ten thousand dollars." In January, 1876, Miss Jacques made another will, in which she gave to Miss Smith "the sum of ten thousand dollars in cash, provided she lives with me until my decease." In the same year Miss Smith was married, and after her marriage the $3,000 was paid to her, and she gave the following writing: "New- bury, Nov. 29, 1876. Whereas, Miss Anna Jacques has intimated to me that in her will of January 31st, A. D. 1876, she has devised a cer- tain sum of money on certain conditions, now, being desirous of purchasing a house and land adjoining the same, she (Miss Jacques) has kindly advanced to me the sum of three thousand dollars by the hands of Edward P. Shaw, this day. I hereby acknowledge to have received the said sum of three thousand dollars in advance of and on account of said legacy, and in settlement of said estate if the condi- tions above mentioned are fulfilled it shall be deducted from the said legacy aforesaid, and I bind myself by this receipt to perform above agreement, to allow the deduction to the executors of the said estate." This was signed by Mrs. Downs, and attested by a witness. Mrs. Downs continued to live with Miss Jacques until her death, in January, 1885. In August, 1882, Miss Jacques made a new will, which express- ly revoked former wills, and contained this clause: "Item 7. I give and bequeath to Harriet M. Downs, wife of Willard O. Downs, the sum of ten thousand dollars if she shall survive me; but if she shall not survive me, in such case I give and bequeath the same (ten thou- sand dollars) to her children who may be living at the time of my decease." This will was admitted to probate. Unquestionably the payment of the $3,000 would have been an advancement of so much of the legacy given by the will of 1876, and an ademption pro tanto of it, had the instrument which contained it become the will of Miss Jacques. But the will was revoked, and a subsequent will executed; and the inten- tion of Miss Jacques that the payment should be in satisfaction of a legacy given by the subsequent will cannot of itself be given in evidence to control the plain terms of the actual will. Unless that intention was understood and assented to by Mrs. Downs when the payment was made, it cannot be taken as satisfaction pro tanto of the subsequent legacy. The paper signed by Mrs. Downs does not show any contract or understanding that the payment should be in satisfaction of a sub- sequent legacy. It refers and is limited to the legacy in the will of 1876. The fact that it was understood that Mrs. Downs should have a portion of the estate of Miss Jacques can have no greater effect than to place her in the position of a child who expected a portion. The fact that $10,000 had been mentioned when the relation of the parties commenced as the amount of the portion, and was the amount of the legacy in the existing will, does not show that Mrs. Downs in accept- ing an advancement of a part of that legacy agreed to receive it in satis- Ch. 4) PAYMENT OP LEGACIES AND SHARES. 745 faction of an equal amount of any future legacy that might be given to her, there was nothing in the transaction which could prevent Miss Jacques from revoking the legacy and giving a new legacy for any amount she might choose, nor that could prevent Mrs. Downs from receiving the full amount of a subsequent legacy. The writing is limited to the legacy mentioned in it, and cannot of itself affect any subsequent gift. The only other evidence upon which the appellants rely for proof that Mrs. Downs agreed to receive the $3,000 in satisfaction of a fu- ture legacy i^ conversations between Miss Jacques and Mrs. Downs after the last will was excccited. So far as these go only to show the intention of Miss Jacques in advancing the $3,000 they are immaterial, unless they also show an admission by Mrs. Downs that she received the payment in satisfaction of the subsequent legacy. They do not show any such admission. On the contrary, Mrs. Downs said that she was to have the $10,000, and Miss Jacques said that $3,000 of it had been paid. The fact that Mrs. Downs made no reply to this can- not be taken as an admission of its truth. She had already stated her understanding of it, and the remark of Miss Jacques was in answer to her. She cannot be held to have assented to Miss Jacques' state- ment, because she did not continue the discussion. The report does not find that Mrs. Downs accepted the advance of $3,000 with the un- derstanding that it should be in satisfaction pro tanto of a future lega- cy, and the facts and evidence reported do not show that she received it with such understanding or that she agreed that it should be so applied. As no contract is found or can be inferred, it is not necessary to consider the further objection made by the executor that the legacies are substantially different. The legacy which was adeemed in part was to Miss Smith alone, and would lapse by her death, and was on condition that she lived with the testatrix until her decease, and it con- formed to the original agreement between the parties. The subsequent legacy was without condition, and included children of Mrs. Downs if she did not herself survive the testatrix. Without deciding that a promise to accept a present sum in satisfac- tion of a future legacy in the terms of the former could not be extended to the different legacy actually given, we think that it does not appear that the payment was received in satisfaction pro tanto of any future legacy. Decree affirmed.'^ 61 "The doctrine of satisfaction presupposes that there is some obligation to be satisfied; but a completed gift is a completed gift and cannot require satisfaction. Thus if I establish my son in trade, buy a business for him for £5,000, and pay the money, or if when my daughter marries I transfer £5,000 worth of shares to the trustees of her settlement, here is a completed gift; if afterwards I bequeath £5,000, or any other sum. to my son or daughter, there can in this case be no talk of satisfaction, for tiiere is nothiug to be satisfied." Maitland's Equity and the Forjus of Action at Common Law, 183. 746 PROBATE AND ADMINISTRATION. (Fart 3 In re BRIDLE. (Court of Common Pleas Division, 1879. 4 C. P. D. 336.) Petition by Louisa Bridle, asking for the payment out of court to her of i200. John Bridle died in 1877. By his will, made in 1872, he bequeathed to the petitioner the mortgage of £200 which he had secured to him on a mortgage of premises in Melcombe Regis. The petitioner, against the objection of the executors of John Bridle's will and 6i the residu- ary legatees thereunder, introduced evidence that in 1873, the mortgage above mentioned was paid off; that John Bridle paid the mortgage money into the bank of Williams & Co. ; that he had a regular account at that bank ; that he did not pay this money into his general account, but had it entered in his name to a separate account, which he opened with the bank for that purpose ; that he received a separate pass-book ; that he handed this pass-book into the custody of the petitioner, stat- ing to her, when he did so, that it was the money he had received from the mortgage, and that she was to keep the book, as he had willed the money to her, for her to receive it after his death, and stating that it would show that the money was for her, and would do away with the necessity of altering his will in consequence of the mortgage being paid off; and that the £200 remained intact in the bank down to the death of John Bridle, he only drawing the interest from time to time, and the petitioner retaining possession of the pass-book. This evidence was uncontradicted. Williams & Co. paid the money into a post-office sav- ings bank in the name of the registrar of the County Court to await the decision of the court. The judge ordered the costs of all parties to be paid out of the £200 and the balance to be paid to the petitioner. The executors and residuary legatees appealed. Denman, J.®^ The testator by his will bequeathed to the petitioner "the mortgage debt of £200 which he had secured to him on a mort- gage of premises in King street, Melcombe Regis, belonging to Wil- liam Hardy." It is impossible to read those words without seeing that the obvious intention of the testator was to give her the mortgage it- self. Has there, then, been an ademption? That depends upon the rule stated by Lord Hardwicke, C, in Humphreys v. Humphreys, 2 Cox, C. C. 184, where he said that "the only rule to be adhered to was, to see whether the subject of the specific bequest remained in specie at the time of the testator's death, for, if it did not, then there must be an end of the bequest; and that the idea of discussing what were the particular motives and intention of the testator in each case in destroying the subject of the bequest, would be productive of endless uncertainty and confusion." * * * j^ the case of a specific be- «2 Parts only of the opinions are given. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 747 quest of a thing which has ceased to exist during the Hfetime cf the testator, the legacy is adeemed. LiNDLEY, J. I am of the same opinion. The first question here is what was bequeathed to Louisa Bridle. It is a bequest of a mortgage — a specific legacy. The only other question is, where is it? It is not to be found; and there is an end of it. * * * And see the judg- ment of Lord Thurlow in Stanley v. Potter, 2 Cox, C. C. ISO, where it was held that a bequest of a debt is adeemed by the debt being paid to the testator in his lifetime, whether the payment be compulsory or vol- untary, or whether the sum be expressed in the bequest or the debt be- queathed generally.^^ For these reasons, I am of opinion that the peti- tioner is not entitled to the £200, and the judgment of the County Court judge must be reversed, with costs. Judgment reversed.®* COWPER V. SCOTT. (High Court of Chancery, 1731. 3 P. Wrns. 119.) The last point of the case®^ was, the testator Bedel had devised all his personal estate in sevenths, viz., one seventh to each child; after which his son, being the eldest child, died in the testator's lifetime, and then the testator died, by which means the son's seventh became distrib- utable according to the statute, the executors being declared by the will to be but trustees; and four of the testator's daughters being married, and having been advanced by their father in his lifetime, it 6 3 See Wrckoff v. Perrine's Ex'rs. 37 X. J. Eq. IIS (1SS3) ; Succession of Batchelor, 4S La. Ann. 27S. 19 South. 2S3 (1S96) : Rogers v. Rogers, 67 S. C. 16S. 45 S. R 176. 100 Am. St. Rep. 721 (1903): Tanton v. Keller. 1G7 111. 129. 47 N. K 376 (1S97). But see In re Bradley's Will, 73 Tt. 253, 50 Atl. 1072 (1901). "The bequest was of certain notes [for $1,200] secured by mortgage of land. The testator surrendered those notes in his lifetime, and took a re- conveyance of the property for which they had been given. He afterwards sold the same property to another and took notes [for $600] for it that were unpaid when he died. We think the legacy had been adeemed and that the notes now held by the executor constitute a part of the estate to be distribut- ed among the heirs. The legacy was specific and the subject of It had been disposed of by the testator in his lifetime." Haskell, J., in Tolman v. Tol- man. So Me. 317, 320, 321. 27 Atl. 1S4. 1S5 (1S93). But that taking renewal notes will not be an ademption of notes bequeathed, and the new notes will pass, was held in Ford v. Ford. 23 N. H. 212 (1S51). 6 4 There is a broad distinction between the gift of a debt as a debt and the sum of money produced when the debt has been recovered and has ceased to be a debt. In the one instance the legacy is specific, and the collection of the debt in the testator's lifetime will adeem the legacy. On the other hand, the gift extends to and includes the fimd in the altered state, because, being a gift of the fund, the thing given will pass, though it be not in the precise state it was when the will was executed." McSherry. J., in Littis v. Hance, SI Md. 416, 432. 32 Atl. 343 (1S95). Compare Georgia Infirmary, etc., v. Jones (C. C.) 37 Fed. 750 (1SS9). 6 5 The other points in the case are omitted. 748 PROBATE AND ADMINISTRATION. (Part 3 was therefore contended, that this seventh, which was the son's share, becoming- distributable according- to the statute, the four sisters, who had been advanced by their father in his hfetime, ought to bring their portions into hotchpot ; for if the children are within the statute as to one clause, they must be within it as to every clause thereof. Sed curia [Sir Joseph Jekyi^l, M. R.] contra. Though this seventh part devised to the son, did, by his dying in his father's lifetime, for necessity's sake become distributable according to the statute, yet I take this not to be in strictness within the same, because here is an ex- ecutor, and therefore the testator cannot be said to have died intestate, though it is true the executor, being but a trustee, is, by an equitable construction, and by means of an accident that has happened since the making of the will, a trustee for the next of kin according to the stat- ute. However, this is (as I said) merely through necessity, and be- cause no one else can take ; but as to children who were advanced in their father's lifetime, bringing such their advancements into hotch- pot, that is to be only in the case of a total intestacy, or where the whole personal estate, not where part only, and that perhaps but a very small part (as here), becomes distributable; neither would it be rea- sonable for the children so to do. And it is observable that Mr. Lut- wyche, who was of counsel with the deceased daughter's husband, and whose client's interest it was to have the advancements of the four married daughters brought into hotchpot, gave up the point, saying it had been so adjudged in Sir George Wheeler's Case."' HOLT V. LIBBY. ' (Supreme Judicial Court of Maine, 1S88. 80 Me. 329, 14 Atl. 201.) See ante, p. 697, for a report of the case. In re RATTENBERRY. RAY V. GRANT. (Supreme Court of Judicature, Chancery Division. [1906] 1 Ch. 667.) SwiNFEN Eady, J.* The rule is that a legacy to a creditor of an amount equal to or greater than the debt is prima facie to be consider- ed a satisfaction of the debt. «« Reported sub nom. Wlaeoler v. Stieer in Mos. 288. 301 (1730). In In re Roby, Howlett v. Newiugton, [1908] 1 Cb. 71. the doctrine that, in applying the analogy of the statute of distribution to the case of partial intestacy of the beneficial interest in undisposed of residue, the advances made by the testa- tor in his life time need not be brought into hotchpot was reaffirmed. Though the decision was unanimous, Fletcher Moulton, L. J., concurred "somewhat reluctantly." * The statement of facts is omitted. Ch. 4) PAYMENT OF LEGACIES AND SHARES. 749 This rule was established two centuries ago; but no sooner was it established than it was frequently disapproved of, and exceptions were engrafted upon it. In In re Horlock, [1895] 1 Ch. 516, 522, Stirling, J., said that he joined with the many judges who had disapproved the rule laid down, and that he equally disapproved of the exceptions which had been grafted on it, but that both were binding upon him ; they are both equally binding upon me. The present case is in my opinion with- in the rule, unless there is sufficient indication of intention to exclude it. The debt was il50 money borrowed by the testatrix in 1899 from her sister, the plaintiff, upon which the testatrix paid interest at 5 per cent, during her life, and it was payable on demand. The legacy is a general pecuniary legacy of £400 without any time being specified for payment, and without any mention of interest. The will bears date November 23, 1903, and does not contain any di- rection to pay debts. It is sought to exclude the rule on the ground that the debt carries interest from the death and the legacy only from one year after the death. But it was decided by Lord Hardwicke in Clark v. vSewell, 3 Atk. 96, 98, that where the legacy is in satisfaction of a debt and no time is fixed for payment of the legacy it carries interest from the death of the testator. If the will mentions a date for payment, then interest will only run from that date; and this was the ground upon which Haynes v. Mico, 1 Bro. C. C. 129, and Adams v. Lavender (1824) 1 McCl. & Y. 41, were decided, as pointed out by Stirling, J. Indeed, in Clark v. Sewell, 3 Atk. 96, 97, Lord Hardwicke said: "According to the rule of this court, a legacy that ought to be deemed a satisfac- tion must take place immediately after the death of the testator; for the debt, whether of a principal sum or for interest, is due at the death of the testator, and therefore the legacy must be so too. * * * There is no case to make a legacy a satisfaction of a debt, where the legacy is not due at the time of the testator's death, but is made con- tingent, and to take place, at a future day, * * * whether the post- poning the legacy is a month only or a longer time, it makes no manner of difference." Lord Hardwicke, in referring to a legacy that "must take place immediately after the death of the testator," means a legacy the payment of which is not postponed by the testator. A legacy is within the rule laid down by Lord Hardwicke if it is an immediate legacy, although, of course, only payable in a due course of adminis- tration and after debts and funeral expenses have been provided for. In Fowler v. Fowler, 3 P. Wms. 353, where the debt due at the date of the will was £200, for arrears of pin money, and a general pecuniary legacy of £500 was given, Talbot, L. C, held that the legacy was a satisfaction of the debt. In Gaynon v. Wood, 1 Dick. 331, there was a bond debt of £200 and a legacy of £500 given to the creditor by a subsequent codicil, and the Master of the Rolls held that the legacy must be taken in satisfaction of the debt, and the fact that since the 750 PROBATE AND ADMINISTRATION. (Part 3 death the executors had paid the bond debt to the creditor made no difference in adjusting the rights of the parties. So, again, In re Fletcher, 38 Ch. D. 373, 376, before North, J., is an instance of a legacy being given in satisfaction of a debt, where the debt carried interest, and where no time was fixed for payment of the legacy. In that case the debt was in fact paid off by the testator in his lifetime, and the actual decision was that the legacy had been adeemed, but the learned judge first considered how the matter would have stood if the debt had not been so paid off. He said: "Suppose the debt had not been paid, could the widow have taken the debt as well as the lega- cy? I think clearly not." The fact, therefore, that the legacy is given generally, without any reference to time of payment or interest, will not exclude the rule. Reliance was also placed on the fact that the plaintiff was appointed executrix and could retain her own debt, but in my opinion this makes no difference. As I have already pointed out, in the case of Gaynon V. Wood, 1 Dick. 331, the debt had been actually paid by the executor. I am therefore bound by the authorities to which I have referred to hold that in the present case the legacy is a satisfaction of the debt. The distinctions between the cases on the satisfaction of debts by annuities are very slender, as may be seen by comparing Atkinson v. Littlewood, L. R. 18 Eq. 595, before Malins, V. C, and In re Dowse, 50 L. J. Ch. 285, before Hall, V. C, which latter case was followed by Stirhng, J,, in In re Horlock (1895) 1 Ch. 516; but it is by the deci- sions on cases of legacies, which leave no room for doubt, that the present case is governed.®'' 6 7 "A legacy by a debtor to a creditor will, in the absence of any evidence of the testator's Intent, be presumed to have been given in payment of the debt, if the debt was contracted prior to the malving of the will, and the legacy is as great or greater than the debt. The rule seems to have little or no foundation in reason, and is followed with rehictance. It does not apply where a debt turns out to be due on an account current, nor where the legacy is uncertain or contingent, or if there is an express direction to pay debts, or if there is a difference in the nature of the debt and legacy, or fn the times in which they are respectively payable, or where the legacy is payable upon terms less advantageous to the creditor, or where the debt accrued after the making of the will, or where the property devised is of uncertain value, or where the expressed purpose of the gift, strictly construed, would not include a debt due from the testator." Gardner on Wills, p. 571. See, also, note to Holt v. Libby, reported ante, p. 697. "In a case of ademption, where the will is first, that is a revocable instru- ment, and the testator has an absolute power of revoking or altering any gift thereby made. But where the obligation is earlier in date than the will, the testator when he makes his will is under a liability which he cannot revoke or avoid. He can only put an end to it by payment or by making a gift with the condition, expressed or implied, that the legatees shall take the gift made by the will in satisfaction of their claim under the previous obligation. It is therefore easier to assume an intention to adeem than an intention to give a legacy in lieu or in satisfaction of an existing obligation." Cotton, L. J., in In re Tussand, 9 Ch. D. 3(>3, 380 (1878). In Sharp v. Wightman, 205 Pa. 2S5, 54 Atl. 888 (1903), it was held that. In case the testator's intention is left in doubt by the will, evidence outside the will may be received to show whether the testator intended a legacy to his son to be an extinguishment of the latter's indebtedness. Ch. 4j PAYMENT OF LEGACIES' AND SHARES. 751 In re BRUCE. LAWFORD V. BRUCE. (Supreme Court of Judicature, Court of Appeal. [1908] 2 Ch. 682.) Appeal from a decision of Neville, J., [1908] 1 Ch. 850. The testator, who died in 1882, devised and bequeathed his real and residuary personal estate to trustees upon trust (in the events which happened) for his widow for life, and after her death upon trust for his seven children in equal shares. James Bruce was one of these children. In 1906 the testator's widow died. Some old papers of the testator's were then found, from which it appeared that in the year 1878 he had lent his sister, one Emily Gordon, £200 at 5 per cent, interest, and that no payment or acknowledgment in respect of either principal or interest had been made since 1880. The said Emily Gordon had died in 1903, having- bequeathed the residue of her personal estate to the said James Bruce and having ap- pointed him one of her executors. The said Emily Gordon's will had been proved by both executors, her estate had been wound up, and James Bruce had received the residue of her personal estate, which amounted to about £5,000. The plaintiffs, the present trustees of the testator, had distributed and paid over his residuary estate, other than the one-seventh share payable to the said James Bruce, which amounted to about £1,700. The present summons was taken out by the trustees for the pur- pose of determining whether or not the said James Bruce was bound to bring the £200 debt with interest from 1880 into account against his one-seventh share of the testator's estate. Neville, J., held that the principle of Courtenay v. Williams, 3 Hare, 539, on appeal, 15 L. J. Ch. 201, applied, and that James Bruce must bring the debt and interest into account against his share in his father's residuary estate. James Bruce appealed. Cozens-Hardy, M. R.^^ In this case I am unable to agree with the decision at which Neville, J., has arrived. The material facts are very simple. [His Lordship stated them, and continued:] The claim which is raised in the action is this : "You, James Bruce, are not entitled to be paid in full your share of your father's estate, because you must deduct from that share the amount of the statute-barred debt which was due from Emily Gordon and from her executors after her death." It is sought to support that view by reference to the well-known deci- sion in Courtenay v. Williams, 3 Hare, 539, 15 L. J. Ch. 201. First of all, what was Courtenay v. Williams? It was a case in 9 8 The concurring opinions of Fletcher Moulton, L. J., and of Farwell, L» J., are omitted. 752 PROBATE AND ADMINISTRATION. (Part 3 which the legatee under the will was directly and legally a debtor of the testator's estate. True, the statute of limitations had barred the reme- dy, but the legal liability remained, and could be enforced in various ways which are indicated by the court, e. g., a lien on any moneys she could get hold of later on, and the court there said, "You cannot claim payment in full of the assets because you, in respect of your legal lia- bility, must be regarded as having an asset of the estate in your hands for which you must account," or, in other words, you must be consid- ered, to the extent of those assets, to have paid yourself. Neville, J., in his judgment treated it, in this way. He said: "It seems to me that the trustees of the testator's estate are entitled to say to him, 'You have in your hands, as residuary legatee of your aunt, this debt which with interest has remained due from her and has never been paid to the testator's estate and ought to be accounted for.' " I am entirely unable to follow that. There was at no time the legal relation of debtor and creditor between James Bruce as residuary legatee and the testator. It is quite true there might have been, apart from the statute of limitations, a right in the creditor to follow the as- sets in the hands of the residuary legatee, but that right has been plain- ly lost by the statute of limitations, and, there bemg no possibility of bringing an action in equity against James Bruce, I fail to see any foundation for the doctrine which is rehed upon. No part of Emily Gordon's assets has been appropriated or has been retained in respect of this debt, and there is no foundation, as it seems to me, for the sug- gestion that James Bruce, in his character of residuary legatee, ever was liable, in the sense of being equitably liable, to pay this debt. There was no legal liability, and a court of equity always considers that it must regard all the circumstances of the case; it considers the ques- tion of laches and all such matters before it makes an order to refund and do what is just and right between the parties. In the present case, I can scarcely bring myself to doubt that this is a case in which those equitable considerations ought to have been applied, if the court had been asked to follow assets in this case. But this is not a case of fol- lowing assets at all. There was never any time when there was any legal liability, and the whole foundation of Courtenay v. Williams, 3 Hare, 539, 15 L. J. Ch. 204, was that there was a legal liability. With great respect to the learned judge, I think his decision was wrong and that this appeal must be allowed. APPENDIX ENGLISH STATUTES Pago 13 Edw. I, c. 19 (1285). Administration .753 13 Edw. I, c. 23 (1285), Executors 753 4 Edw. Ill, c. 7 (1330), Executors 753 25 Edw. Ill, c. 5 (1350), Executors 753 31 Edw. Ill, C. 11 (1357), Administration ' 754 21 Hen. VIII, c. 5, §§ 3, 4 (1529), Administration 754 32 Hen. VIII, c 1 (1540), Statute of Wills 754 34 & 35 Hen. VIII, c. 5 (1542), Statute of Wills 754 12 Car. II, c. 24, S 1 (1660) Abolition of Military Tenures 754 22 & 23 Car. II, c. 10 (1671), Statute of Distributions 755 29 Car. II, c. 3, §§ 5, 6, 12. 19-25 (1676), Statute of Frauds 758 1 Jac. II, c. 17, § 7 (1685). Distribution 760 25 Geo. n, c. 6, §§ 1, 2, 10 (1752), Attestation of Wills 760 7 Wm. IV, & 1 Vict. c. 26. §§ 1-3. 6-35 (1837), Wills Act 760 15 & IB Vict a 24, § 1 (1852), Wills Act Amendment Act 767 St. 13 Edw. I (Westm. II) c. 19 (1285).— Whereas after the death of a person dying intestate, which is bounden to some other for debt, the goods come to the ordinary to be disposed ; (2) the ordinary from henceforth shall be bound to answer the debts as far forth as the goods of the dead will extend, in such sort as the executors of the same party should have been bounden, if he had made a testament. St. 13 Edw. I (Westm. II, 1285) c. 23.— Executors from henceforth shall have a writ of accompt and the same action and process in the same writ as the testator might have had if he had lived. St. 4 Edw. Ill, c. 7 (1330). — Item, Whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; (2) it is enacted, that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner, as they, whose executors they be, should have had if they were in life. St. 25 Edw. Ill, c. 5 (1350).— Item, it is accorded and established that executors of executors shall have actions of debts, accompts and of goods carried away of the first testators; (2) and execution of statutes merchants and recognizances made in court of record to the first testator, in the same manner as the first testator should have had if he were in life, as well of actions of the time past as of the time to CosT.WiLLs^S (753) 754 APPENDIX. come, in all cases where judgment is not yet given betwixt such exec- utors; (3) but that the judgments given to the contrary to this article in times past shall stand in their force; (4) and that the same execu- tors of executors shall answer to other of as much as they have re- covered of the goods of the first testators, as the first executors should do if they were in full life. St. 31 Edw. Ill, c. 11 (1357). — Item, it is accorded and assented, that in case where a man dieth intestate, the ordinaries shall depute the next and most lawful friends of the dead person intestate to admin- ister his goods; (2) which deputies shall have an action to demand and recover as executors the debts due to the said person intestate in the king's court, for to administer and dispend for the soul of the dead; ( 3) and shall answer also in the king's court to other to whom the said dead person was holden and bound, in the same manner as executors shall answer. (4) And they shall be accountable to the ordinaries, as executors be in the case of testament, as well of the time past as of the time to come. St. 21 Hen. VIII, c. 5, §§ 3, 4 (1529).— Ill * * * (6) And in case any person die intestate, or that the executors named in any such testament refuse to prove the said testament, then the said ordinary, or other person or persons having authority to take probate of testaments, as is abovesaid, shall grant the administration of the goods of the tes- tator, or person deceased, to the widow of the same person deceased, or to the next of his kin, or to both, as by the discretion of the same ordinary shall be thought good, taking surety of him or them, to whom shall be made such commission, for the true administration of the goods, chattels, and debts, which he or they shall be so authorized to minister; (7) and in case where divers persons claim the administra- tion as next of kin, which be equal in degree of kindred to the testator or person deceased, and where any person only desireth the administra- tion as next of kin, where indeed divers persons be in equality of kin- dred, as is aforesaid, that in every such case the ordinary to be at his election and liberty to accept any one or more making request, where divers do require the administration. IV. Or where but one or more of them, and not all being in equality of degree, do make request, then the ordinary to admit the widow, and him or them only making request, or any one of them at his pleasure. * ♦ ♦ Sts. 32 Hen. VIII, c. 1 ClSlO), and 34 & 35 Hen. VIII, c. 5 (1542). — See extracts, ante, p. 112.^ St. 12 Car. II, c. 24 (1660). * * * And it is hereby enacted * * * that all tenures by knight-service of the king, or of any oth- 1 As the Statutes of Wills are sufficiently stated ante, p. 112, and their effect explained in the passages ante. pp. 3, 5, and as, if printed in full, they would occupy too much space, they are omitted. ENGLISH STATUTES, <0D er person, and by knight-service in capite, and by socage in caplte oi the king, and the fruits and consequents thereof, happened or which shall or may hereafter happen or arise thereupon or thereby, be taken away and discharged. * * * And all tenures of any honours, manors, lands, tenements or hereditaments, of any estate of inherit- ance at the common law, held either of the king or of any other person or persons, bodies politick or corporate, are hereby enacted to be turned into free and common socage, to all intents and purposes, * * * and shall be so construed, adjudged and deemed to be from the said twenty-fourth day of February, one thousand six hundred forty-five, and forever thereafter, turned into free and common socage; any law, statute, custom, or usage to the contrary hereof in any wise notwithstanding.^ St. 22 & 23 Car. II, c. 10 (1G71). An Act for the better settling of intestates' estates. Be it enacted by the king's most excellent majesty, with the advice and consent of the Lords Spiritual and Temporal, and the Commons in this present Parliament assembled, and by the author- ity of the same, that all ordinaries, as well the judges of the prerogative courts of Canterbury and York for the time being, as all other ordi- naries and ecclesiastical judges, and every of them, having power to commit administration of the goods of persons dying intestate, shall and may upon their respective granting and committing of adminis- tration of the goods of persons dying intestate, after the first day of June one thousand six hundred seventy and one, of the respective person or persons to whom any administration is to be committed, take sufficient bonds with two or more able sureties, respect being had_ to the value of the estate, in the name of the ordinary, with the condition in form and manner following, mutatis mutandis, viz.: — II. The condition of this obligation is such, that if the within bound- en A. B. administrator of all and singular the goods, chattels and credits of C. D. deceased, do make or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of him the said A. B. or into the hands and possession of any other person or persons for him, and the same so made do exhibit or cause to be exhibited into the registry of court, at or before the day of next ensuing; (2) and the same goods, chattels and credits, and all other the goods, chattels and credits of the said -deceased at the time of his death, which at any time after shall come to the hands or possession of the said A. B. or into the hands and possession of any other person or persons for him, do well and truly administer according to law; (3) and further do make or cause to be made, a true and just account of his said administration, 2 A part of § 1 only of the statute is here given. The effect of the statute is explained in the passages, ante, pp. 3, 5, 6. 756 APPENDIX. at or before the day of . And all the rest and residue of the said goods, chattels and credits which shall be found remaining upon the said administrator's account, the same being first examined and allowed of by the judge or judges for the time being of the said court, shall deliver and pay unto such person or persons respectively, as the said judge or judges by his or their decree or sentence, pursuant to the true intent and meaning of this Act, shall limit and appoint. (4) And if it shall hereafter appear, that any last will and testament was made by the said deceased, and the executor or executors therein named do exhibit the same into the said court, making request to have it al- lowed and approved accordingly, if the said A. B. within-bounden, being thereunto required, do render and deliver the said letters of ad- ministration (approbation of such testament being first had and made) in the said court ; then this obligation to be void and of none effect, or else to remain in full force and virtue. III. Which bonds are hereby declared and enacted to be good to all intents and purposes, and pleadable in any courts of justice; (2) and also that the said ordinaries and judges respectively, shall and may, and are enabled to proceed and call such administrators to account, for and touching the goods of any person dying intestate; (3) and upon hearing and due consideration thereof, to order and make just and equal distribution of what remaineth clear (after all debts, funerals and just expenses of every sort first allowed and deducted) amongst the wife and children, or children's children, if any such be, or other- wise to the next of kindred to the dead person in equal degree, or le- gally representing their stocks pro suo cuique jure, according to the laws in such cases, and the rules and limitation hereafter set down ; and the same distributions to decree and settle, and to compel such administrators to observe and pay the same, by the due course of his Majesty's ecclesiastical laws: (4) saving to every one, supposing him or themselves aggrieved, right of appeal as was always in such cases used. IV. Provided, that this Act, or anything herein contained, shall not anyways prejudice or hinder the customs observed within the city of London or within the province of York or other places, having known and received customs peculiar to them, but that the same customs may be observed as formerly; anything herein contained to the contrary notwithstanding. V. Provided always, and be it enacted by the authority aforesaid, that all ordinaries and every other person who by this Act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage of such estate or estates in manner and form following; that is to say, (2) one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions, to and amongst the children of such persons dying intestate, aod such persons as legally represent such children, in case any of the ENGLISH STATUTES. 757 said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intes- tate, or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other childr£n to whom such distribution is to be made: (3) and in case any child, other than the heir at law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due to the other children by such distribution as aforesaid; then so much of the surplusage of the estate of such intestate, to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as- shall make the estate of all the said children to be equal as near as can be estimated: (4) but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent, or otherwise from the intestate. VI. And in case there be no children nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate, who are in equal de- gree and those who legally represent them. VII. Provided, that "there be no representatives admitted among collaterals after brothers' and sisters' children; (2) and in case there be no wife, then all the said estate to be distributed equally to and amongst the children; (3) and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever. VIII. Provided also, and be it likewise enacted by the authority aforesaid, to the end that a due regard be had to creditors, that no such distribution of the goods of any person dying intestate be made till after one year be fully expired after the intestate's death; (2) and that such and every one to whom any distribution and share shall be allotted, shall give bond with sufficient sureties in the said courts, that if any debt or debts truly owing to the intestate shall be afterwards sued for and recovered, or otherwise duly made to appear ; that then and in every such case he or she shall respectively refund and pay back to the administrator his or her ratable part of that debt or debts, and of the costs of suit and charges of the administrator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said administrator to pay and satisfy the said debt or debts so discovered after the distribution made as aforesaid. IX. Provided always, and be it enacted by the authority aforesaid, that in all cases where the ordinary hath used heretofore to grant administration cum testamento annexo, he shall continue so to do, and 758 APPENDIX. the will of the deceased in such testament expressed shall be per- formed and observed in such manner as it should have been if this Act had never been made.^ St. 29 Car. II, c. 3 (1676).— V. And be it further enacted by the' authority aforesaid, That from and after the said four and twentieth day of June all devises and bequests of any lands or tenements, devis- able either by force of the Statute of Wills, or by this Statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect. VI. And moreover, no devise in writing of lands, tenements or here- ditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June 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; (2) but all devises and bequests of lands and tenements shall remain and con- tinue in force, until the same be burned, cancelled, torn or obliterated by the testator, or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witness- es, declaring the same; any former law or usage to the contrary notwithstanding. XII. And for the amendment of the law in the particulars follow- ing: (2) Be it further enacted by the authority aforesaid. That from henceforth any estate pur autcr vie shall be devisable by a will in writ- ing, signed by the party so devising the same, or by some other person in his presence arid by his express directions, attested and subscribed in the presence of the devisor by three or more witnesses; (3) and if no such devise thereof be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occu- pancy as assets by descent, as in case of lands in fee-simple; (4) and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands. XIX. And for prevention of fraudulent practices in setting up nun- cupative wills, which have been the occasion of much perjury: (2) Be it enacted by the authority aforesaid. That from and after the aforesaid four and twentieth day of June no nuncupative will shall be good, where the estate thereby bequeathed shall exceed the value of 8 See section 25 of St. 29 Car. II, c. 3 (1G7G), post, p. 759, and St. 1 Jac. II. <•. 17, § 7 (1085) , post, p. 7C0. ENGLISH STATUTES. '*^^ thirty pounds, that is not proved by the oaths of three witnesses (at the least) that were present at the making thereof; (3) nor unless it be proved that the testator at the time of pronouncing the same, did bid the persons present, or some of them, bear witness, that such was his will, or to that effect; (4) nor unless such nuncupative will were made in the time of the last sickness of the deceased, and m the house of his or her habitation or dwelling, or where he or she hath been resi- dent for the space of ten days or more next before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling. XX. And be it further enacted, That after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will. XXI. And be it further enacted. That no letters testamentary or probate of any nuncupative will shall pass the seal of any court, till fourteen days at the least after the decease of the testator be fully expired; (2) nor shall any nuncupative will be at any time received to be proved, unless process have first issued to call in the widow, or next of kindred to the deceased, to the end they may contest the same, if they please. XXII. And be it further enacted : That no will in writing concern- ing any goods or chattels, or personal estate, 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 testator, and allowed by him, and proved to be so done by three witnesses at the least. XXIII. Provided always: That notwithstanding this act, any sol- dier being in actual military service, or any mariner or seaman being at sea, may dispose of his moveable, wages and personal estate, as he or they might have done before the making of this act. XXIV. And it is hereby declared: That nothing in this act shall extend to alter or change the jurisdiction or right of probate of wills concerning personal estates, but that the prerogative court of the archbishop of Canterbury, and other ecclesiastical courts, and other courts having right to the probate of such wills, shall retain the same right and power as they had before, in every respect; subject never- theless to the rules and directions of this act. XXV. And for the explaining one act of this present Parliament, intituled, An act for the better settling of intestates estates [23 & 23 Car. II, c. 10] : (2) Be it declared by the authority aforesaid: That neither the said act, nor any thing therein contained, shall be construed to extend to the estates of feme coverts that shall die intestate, but that 760 APPENDIX. then husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same, as. they might have done before the making of the said act. St 1 Jac. II, c. 17, § 7 (1685).— Provided also, and it is further enacted by the authority aforesaid, that if after the death of a father, any of his children shall die intestate without wife or children, in the lifetime of the mother, every brother and sister, and the representa- tives of them, shall have an equal share with her ; anything in the last- mentioned acts to the contrary notwithstanding. St. 25 Geo. II, c. 6 (1752).— See the passage from Blackstone, quoted ante, pp. 186, 187. St. 7 Wm. IV & 1 Vict. c. 26 (1837).— Be it enacted by the Queen's most excellent majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Par- liament assembled, and by the authority of the same : That the words and expressions hereinafter mentioned, which in their ordinary sig- nification have a more confined or a different 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 exer- cise of a power, and also to a disposition by will and testament or de- vise 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 azvay the Court of Wards and Liveries, and Ten- ures in capite and by Knights Service, and Purveyance, and for set- tling 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, messu- ages, lands, tithes, rents, and hereditaments, whether freehold, cus- tomary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any un- divided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words "personal estate" shall ex- tend to leasehold estates and other chattels real, and also to moneys, shares of government and other funds, securities for money (not be- ing real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein ; and every word importing the singular number only shall extend and be applied to sev- eral 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. ENGLISH STATUTES. 761 II. And be it further enacted, That an Act passed in the thirty-sec- ond year of the reign of King Henry the Eighth, intituled The Act of Wills, Wards, and Primer Seisitis, whereby a man may devise tivo 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, intit- uled 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 hozv Lands, Tenements, etc., may be disposed by Will or otherzmse, 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 Perjuries, and of an Act passed in the Parliament of Ireland in the seventh year of the reign of King Wil- liam the Third, intituled An Act for Prevention of Frauds and Perju- ries, 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 estate being assets, or to nuncu- pative wills, or to the repeal, altering, or changing of any will in writ- ing 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 four- teenth 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, intit- uled 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 Second, intituled An Act for the avoid- ing and putting an end to certain Doubts and Questions 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 the Third, intituled An Act to remove certain Difficulties in the Disposi- tion of Copyhold Estates by Will, shall be and the same are hereby re- pealed, except so far as the same Acts or any of them respectively re- 762 APPENDIX. late to any wills or estates pur autre vie, to which this Act does not extend. III. And be it further enacted: That it shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in man- ner 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 devised, bequeathed, or disposed of would devolve upon the heir at law, or customary heir of him, or, if he be- came entitled by descent, of his ancestor, or upon his executor or ad- ministrator; and that the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or custom- ary or copyhold, notwithstanding that the testator may not have sur- rendered the same to the use of his will, or notwithstanding that, be- ing 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 ac- cording to the power contained in this Act, if this Act had not been made; and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, 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 personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the samt respectively may become vested, and whether he may be entitled thereto under the instrument by which the 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, inter- ests, 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 subsequently to the execution of his will. IV-V. [Relating to customary and copyhold estates.] 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 hira 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 occu- pant of any estate pur autre vie, whether freehold or customary free- hold, tenant right, customary or copyhold, or of any other tenure, and ENGLISH STATUTES. 763 whether a corporeal or incorporeal hereditament, it shall go to the ex- ecutor 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 ad- ministrator 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 any 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 necessary. 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 hereinbefore required; and every will executed in manner hereinbefore required shall, so far as respects the execution and attes- tation thereof, be a valid execution of a power- of appointment by will, notwithstanding it shall have been expressly required that ^ will made in exercise of such power should be executed with some additional or other form of execution or solemnity. XL 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 affect 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 Laws relating to the. Pay of the Royal Navy, respecting the wills of petty officers and sea- men 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 monies payable in respect of service in Her Majestv's navy. XIII. And be it further enacted, That every will executed in man- ner hereinbefore required shall be valid without any other publication thereof. XIV. And be it further enacted, That if any person who shall at- test the execution of a v/ill shall at the time of the execution thereof. 764 APPENDIX. 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 in- valid. XV. And be it further enacted, That if any person shall attest the execution of any will to whom or to whose wife or husband any bene- ficial devise, legacy, estate, interest, gift, or appointment, of or affect- ing 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 appoint- ment> shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be 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 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 not- withstanding such charge shall be admitted a witness to prove the ex- ecution of such will, or to prove the validity or invalidity 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. XVITI. And be it further enacted. That 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 real or personal es- tate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the Statute of Dis- tribution). XIX. And be it further enacted. That no will shall be revoked by any presumption of an intention on the ground of an alteration in cir- cumstances. 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 tes- tator, or by some person in his presence and by his direction, with the intention of revoking the same. XXI. And be it further enacted, That no obliteration, interlinea- tion, 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 ENGLISH STATUTES. 765 the will before such alteration shall not be apparent, unless such al- teration 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 such 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, shall 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, shall be revived, such revival shall not ex- tend to so much thereof as shall have been revoked before the rev- ocation of the whole thereof, unless an intention to the contrary shall be shown. XXIII. And be it further enacted, That no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked 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 con- strued, 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 ap- pear by the will. XXV. And be it further enacted. That, unless a contrary intention shall appear 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 in- cluded 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 occu- pation of any 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 free- hold estate which could be described by it, shall be construed to in- clude 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 freehold estates, unless a contrary intention shall appear by the will. 7G6 APPENDIX. 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 occupation of any person mentioned in his wilJ, or otherwise described in a general manner, shall be construed, to in- clude 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 construed 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 execution of such power, unless a contrary inten- tion shall appear by the will. XXVIII. And be it further enacted, That where any real estate shall be devised to any person without any words of limitation, 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 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 with- out leaving issue," or "have 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 de- scription 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 executor, 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 devised to a trustee, without any express limitation of the estate to be taken by such trust^ee, and the beneficial interest in such real ENGLISH STATUTES. 767 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 be- yond 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 hap- pened immediately after the death of the testator, unless a contrary in- tention 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 es-. tate shall be devised or bequeathed for any estate or interest not deter- minable 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 be- quest shall not lapse, but shall take effect as if the death of such per- son 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 eight hundred and thirty-eight, and that every will re-executed or repub- hshed, or revived by any codicil, 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 Scotland. St. 15 & 16 Vict. c. 24.— See ante, p. 114. INDEX [the figures refer to pages] ABATEMENT OF LEGACIES AND DEVISES. 467, 468, 657-682. blending of realty and personalty in residue, 673-676, 677, note, 678-680. demonstrative legacies, 659-664. general legacies and devises, 660, note. lands descended, 467, 468. 664-669. legacies in lieu of dower or for value, 680-682, and note. order of abatement. 661, note, 662, note. personalty and realty blended in residue, 673-676. 677, note, 678-680. realty and personalty blended in residue, 673-676, 677, note, 678-680. realty charged with debts, 676, 677. realty charged with debts, 676, 677. residuary devises, 661, note, 664-680. residuary legacies and devises, 659, 660, and note. testator's intentions prevail, 467, 468, 676, 677. ACKNOWLEDGMENT, see Execution of Written Wills. ADEINIPTION. 728-734, 746. 747. distinguished from revocation. 293. note, 731, note, distinguished from satisfaction, 722, note. ADMINISTRATION, see Probate and Administration. ADMINISTRATORS AND EXECUTORS, see Probate and Administration, appointment and removal of, 521-532. coadministrators and coexecutors, 586, 587, and note. 588, note, disqualification, 527-530. executors de son tort, 577, note, 620-632. insanity of executor, 529, 530. liability of one personal representative for the acts of another 588 note power of alienation, 573-590. ' purchaser from, 573-588, and note, 588-590. removal of administrator or executor, 529, note, renunciation of executor, 533, note, resignation of executor, 530-532, and note, right to appointment as administrator, 521-527. by adopted child, 524, note. by illegitimate children and their descendants, 521-524. by husband and wife, 524-527. sale of estate property on execution against administrator individually,. «.>8o— 586. title of executors and administrators, 545-568. waiver of the statute of limitations by, 604, note. ADOPTED CHILDREN, see Administrators and Executors; Descent. ADVANCEMENTS, 722-728, 747, 748. bringing into hotchpot, 722-728, 747, 748. erroneous recital of in will, 78, 79, 222-225. Cost. Wills — 49 (769) 770 INDEX. [The figures refer to pages.] ADVANCEMENTS — (Continued, hotchpot, 722-728, 747, 748. incorporation by reference, 222-225. infants and hotchpot, 722-725. In relation to lapsed legacy, 747, 748. partial intestacy as affecting, 747, 748. pretermitted heirs, 224, note, real estate advanced charged on distribution of personalty, 726-728. ALIENS, see Descent, testamentary capacity of, 10. ALIENATION BY EXECUTORS AND ADMINISTRATORS, 583-590. ANCILLARY ADMINISTRATION, rights of creditors on, 611-613. ^ ANIMUS ATTESTANDI, 184, 185. ^ ANIMUS NUNCUPANDI, 102, note. ANIMUS REVOCANDI, 229-231. ANIMUS TESTANDI, 165, 166. APPOINTMENT OF EXECUTORS AND ADMINISTRATORS, see Administrators and Executors. ASSETS TO GIVE JURISDICTION, see Probate and Administration. ATTESTING WITNESSES, see Witnesses. ATTESTATION, see Execution of Written Wills. ATTESTATION CLAUSE, 145, 146, 148, 149, 185, 186, and note. ATTORNEY, see Witnesses. BASTARD, see Descent BENEFICIARY, see Witnesses. BLIND TESTATOR, 159, 160. BURI>EN OF PROOF, see Slental Capacity ; Undue Influence. BURNING, see Revocation of Wills. CANCELLATION, see Revocation of Wills. CIVIL DEATH, 10-12, 444-451, 494, 495. CLAIMS AGAINST DECEDENT'S ESTATE, see Probate and Administration. , CODICIL, see Incorporation by Reference; Republication of Wills ; Revival; Revo- cation of Wills. COMMON DIS.\STER. DEATH IN, 396, 397. COMMUNITY PROPERTY. adminlstrntion of, 490. note. COMMON FORM. probate In, 507, note. INDEX. 771 [The figures refer to pages.] COMPETENCY OF WITNESSES, see Witnesses. CONDITIONAL, REVOCATION, see Revocation of Wills. CONDITIONAL WILLS, see Wills. CONSTRUCTION OF WILLS, by court of probate, 520, 521. conditional will, 104-107. mistake, 69-77, 80-82. CONTRACTS TO BEQUEATH OR TO DEVISE, distinguished from wills, 90-92. remedies on, 91, note. statute of limitations runs when, 91, note. CONVERSION, EQUITABLE, see Descent CONVICTION OF CRIME, as affecting descent, 426-451. as affecting testamentary capacity, 10-12. COVERTURE, as affecting testamentary capacity, 9. wife as "heir," 405-407. CREDIBILITY, see Witnesses. DEEDS, distinguished from wills, 83-86. evidence that deed intended as will, 86, note. DEFINITIONS, see Words and Phrases. DEMONSTRATIVE LEGACIES, see Abatement. DEPENDENT RELATIVE REVOCATION, see Revocation of Wills. DESCENT, adopted children as ancestors and heirs, 419-422. after-born heirs, 474-485. aliens as ancestors and heirs, 452. bastards, as ancestors and heirs, 408-411, and note, 423-426. how legitimated, 423-426. breaking descent, by deed, 461-466. by devise, 466-473. canons of descent, 386-388. children, illegitimate, 408-411, and note, 423^26. pretermitted heirs, 408-419. civil death, 444-451, consanguinity and descent, 384-386. debts of ancestor, liability of heirs for, 453-460. distributions and descent, 391-395. equitable and legal interests, descent of, 39T-i04. equitable conversion, 397-400, and note. merger of legal and equitable interests, 401-404. 772 INDEX. [The figures refer to pages.] DESCENT— Continued, expectancies, transfer of, 486-493. conveyance to third persons, 488-493. release to ancestor, 486-488. illegitimate and legitimated children as ancestors and heirs, 408-411, and note, 423-426. liability of heirs for debts of ancestor, 453-460. murderer of ancestor as heir, 426-443. partial intestacy. 396, 397. persons civilly dead as heirs. 444r4:51. posthumous children, 471-480. pretermitted heirs, 408-419. evidence of intention to exclude, 224 note, 411-419. illegitimate children as, 408-411. seisin and descent, 388-391. shifting descents, posthumous children. 474-480. other after-born heirs, 480-485. transfer of expectancies. 486-^93. widow as "heir," 405-407. DESTROYING, see Revocation. DEVISES, see Abatement ; Residuary Devises and Bequests. DIVIDENDS, see Legacies. DIVORCE, see Revocation of Wills. DOMICILE, effect of adjudication of, 510-512, and note. DUPLICATE WILL, revocation of, 260, note, witnesses signing different copies, 169, note. EQUITABLE CONVERSION, see Descent. EQUITABLE INTEREST, see Descent. ERROR, see Mistake. EXECUTION OF WRITTEN WILLS, see Incorporation by Reference ; Witnesses, acknowledgment of signature, by testator, 133-143, 165, 166. by witness, 143-145, 150, note, 162-164. request to witness to sign as, 133-141. acknowledgment of will for attestation purposes, 133-141, 145, 146. attestation, evidence of, 145, 146, 148, 149. place of, 186, note, attestation clause, 145, 146, 148, 149, 185, 186, and note, form of signature, by testator, 117, 118. by witness, 174-185. knowledge by witness that testator has no animus testandi, 165, 160. knowledge of Instrument's contents, by testator, 114, 115, and note. by witness, 130, note, 133, 143. INDEX. •''3 [The figures refer to pages.] EXECUTION OF WRITTEN WILLS— ^Continued, order of signing, 143-145, 166-174. place of signature. by testator, 120-133. by witness, 186, note, presence, what is attestation in the, 147-166. mutual presence of witnesses, 162-164, and note. what is presence, 147-162, publication of will, what sufficient, 133-145. when required, 133-145. request that witnesses sign, when sufficient, 133-141, 145, 146. signature of testator, acknowledgment, 133-143, 165, 166. by another, 119, 120, note. form of, 117, 118. order of signing, 143-145, 166-174. place of, 117, 118, and note, 120-133. sealing as, 117. when not required prior to Wills Act, 116. signature of witnesses, acknowledgment of, 143-145, 150, note, 162-164. by another, 180-184. form of, 174-185. order of signing, 143-145, 166-174. place of, 186, note. .^ __ ^,.^ presence of testator and, when required, of other witnesses, 147-Ibb. testamentary intent, 165, 166. EXECUTORS, see Administrators and Executors. EXECUTORS DE SON TORT, 577, note, 620-632. EXONERATION OF MORTGAGED PROPERTY, 702-710. as between devisee and specific legatee, 702. Locke King's Acts, 702, note. where mortgage assumed by deceased on purchase, 703-708. where mortgage put on after execution of will devising property, 709, 710. EXPECTANCIES, see Descent. FOREIGN PROBATE, effect of, 510-^12, and note. FRAUD, alteration of will, 513, 514. evidence of, 36, note. false character of legatee, 31-33, and note, 306, note. jurisdiction to correct fraud, 426-443, 513, 514, 534, 535, 538-541. preventing revocation of will fraudulently, 245, note. substitution of drafts of will, 34. undue influence distinguished from, 31, note. GIFTS CAUSA MORTIS, distinguished from wills, 87-89. nature of condition attached, 90, note. HISTORY OF WILLS AND TESTAMENTS, 3-8. HOLOGRAPHIC WILLS, see Wills. 774 INDEX. [The figures refer to pages.] HUSBAND AND WIFE, ^ ^ w^^^noti^r, nf see Administrators and Executors; Coverture; Descent; Revocation of Wills; Wills; Witnesses. ILLEGITIMATE CHILDREN, see Descent. IMPLIED REVOCATION, see Revocation of Wills. INCORPORATION BY REFERENCE, 202-227, 339, 342-351, by codicil, 208-210, 215-218, 342-351. by holographic will or codicil. 215-218, and note, in general, 202-218, 226, 227, 339. New York rule, 215, note, 349-351. secret trusts, 218-221, and note. INFANCY, as affecting testamentary capacity, 9. INTEREST ON LEGACIES, see Probate and Administration. INTERESTS BELONGING TO EXECUTORS AND ADMINISTRATORS, see Probate and Administration. INTESTACY, see Descent ; Partial Intestacy ; Probate and Administration. JOINT WILLS, see Wills. JURISDICTION TO ISSUE LETTERS, see Probate and Administration. LAPSED GIFTS, see Residuary Devises and Bequests. LEGACIES, see Abatement ; Probate and Administration ; Residuary Devises and Be- quests. LEGITIMATION, see Descent. LOST WILL, presumption as to revocation, 307. MARRIED WOjMEN, see Husband and Wife. MENTAL CAPACITY, 13-30. belief in Spiritualism, 23-30, and note. burden of proof, 20-22. effect of adjudication as to guardianship, 19, 20, note. insane delusions, 2-1-27. relation to undue influence, 47, 48. test of, 13-20, 23. MINOR, see Infancy. MISTAKE, 50-82. see Revocation of Wills, construction, G9-77, 80-82. dependent relative revocation, 308-337. erroneous recital of advancements, 78, 79, 222-225. erroneous recital of number of class of persons, 80-82. evidence of, 50, 51, 116, 334, 335. INDEX. 775 [The figures refer to page*.] MI STAK B— Continued, ignorance of scrivener, 51-55, and note. omissions, 56-64, 116. striking out words, 58-77. wrong paper executed, 77, 78. MUTILATION,- see Revocation of Wills. MUITFAL WILLS, see Wills. NAME, see Execution of Written Willa NUNCUPATIVE WILLS. * see Wills. OBLITERATION, see Revocation of Wills. OLOGRAPHIC WILLS, see Wills PARTIAL INTESTACY, see Advancements, descent, 396, 397. lapsed residue, 720, 721. PENCIL, cancellation with. 90. note, 253, note. will written with, 93, 94. PORTIONS, double not favored, 742, note. POSTHUMOUS CHILD, see Descent. PRETERMITTED HEIRS, see Descent. PROBATE AND ADMINISTRATION, see Abatement of Legacies and Devises ; Ademption ; Administrators and Executors ; Advancements ; Exoneration of Mortgaged Prop- erty ; Residuary Devises and Bequests ; Satisfaction, claims against decedent's estate, kinds of claims, action for wrongful death, 595-599. breach of contract for skillful treatment, 594, 595. breach of promise of marriage, 592-594. contracts of executors and administrators, 600-604. covenant for ground rent, 599, 600. quasi contracts, 592, note, torts of deceased, 591. 592, and note, torts of executors, 602, note, presentation of claims, action as presentation, 608. and note. contingent and uncertain claims, 607, 608, 610, note. 692-697. effect of revocation of administration, 541-544, and note. effect on mortgage and deficiency of failure to present claim, 607, 608, and note, extent of claim of secured creditor having insufficient security, 608, note, notice to one of several representatives, 605. same person executor both of creditor and of debtor, 609, 610. set-off of claim not presented, 606, and note. t 776 INDEX. [The figures refer to pages.] PROBATE AND ADMINISTRATION— Continued, priority between claims, 611-613. at common law, 611. where ancillary administration, 611-613. priority of creditors over legatees and next of kin, 613-620. legatees and bond creditors, 619, 620. retention for contingent claims, 613-619. refunding by creditors, 632-636. debts due from the personal representative as assets. 56S-572. interests belonging to executors and to administrators, kinds of interests, 545-562. action for damage to the person, 560, note. action for damages done to the personal estate, 559. .560, and note. action for damages prior to wrongful death, 549-552, and note. action of trespass quare clausum, 500-562. action on fire insurance policy, 552-557. action to recover property transferred in fraud of deceased's cred- itors, 557-559. breach of promise of marriage, 545, 546, and note. covenant not to injure trees excepted from demise, 547-549. power of alienation, 573-590. when interest vests, administrator, before appointment, 565-568. relation back, 565-568, 602, 603. executor, before probate, 562-565. Jurisdiction to issue letters, 493-506. absentees' estate, 496, note, civil death, 493-496. community property, 496, note, court having jurisdiction, 498-504. effect of lapse of time on right to issue, 504-506, and note* Improperly attested will, 496, 497. living person's estate, 495, note, kinds of probate and administration, common form, 507, note, solemn form, 507, note, legacies and devises, abatement of, 657-682. see Abatement of Legacies and Devises, dividends on, 6547-056. Interest, 637-G53. annuity, 646, 648. definite sum to one for life and then over, 645-652. legacy for maintenance, 652, 653. pecuniary legacy where no time for payment fixed, 637, 638. pecuniary legacy where payment to be "as soon as convenient," 638-640. rate of interest, 643, 644. residue to one for life and then over, 647. refunding by legatees and distributees, dividends on stock refunded, 699-702. interest on refund, 699. on devastavit, 682, 6S3, and note. voluntary payment of legacy under mistake as to assets and li- abilities, 684-697. retainer, for contingent claims, 613-619. for debts barred by the statute of limitations, 697, 698. INDEX. 777 [The figures refer to pages.] PROBATE AND ADMINISTRATION— Continued, necessity and effect of probate and administration, 426-443, 507-521. administration by wrong court. 49S-502, and note. administration of estate of living person, 495. note, construction of will on probate. 520. 521. effect of full faith and credit clause of federal Constitution as to sis- ter state probate, 512. note. ejectment begun by devisee before probate. 507-510. next of kin and distributees suing for benefit of estate, 514—519. probate of foreign will, 510-513. probate of fraudulently altered will. 513, 514. probate of improperly attested will. 496. 497. revocation of probate and of administration, 533-544. effect on bona fide purchasers, 533, 538-541, 544. note. effect on payment made before revocation, 534. 535. effect on presentation of claims. 541-544. forged will, 534. .535. subsequent probate without revocation of administration by direct proceeding, 536, 537. survival of actions. see interests belonging to executors and administrators, under this subject, title of executors and of administrators. see interests belonging to executors and administrators, under this subject, title of personalty of intestate pending administration, 516, note. PUBLICATION. see Execution of Wills. QUALIFIED HEIR, 477-i80. REASONABLE PARTS, doctrine of, 6. RECEIVERS FOR DECEDENTS' PROPEmTT, f516, note, 529, note. REFUNDING, see Probate and Administration. by creditors, 632-636. by legatees and distributees, 682-697, 699-702. RENUNCIATION, of devise. 718. note. of executorship, 533, note. REPUBLICATION OF WILLS, 339-367. after-acquired realty. 340, 341. curative effect of codicil, 362, note. effect upon good gifts in will that would be bad if in codicil, 363-367. effect upon intermediate codicils, 352-301. effect upon satisfied or revoked legacies, 361. 362. holographic wills, 351, note, incorporation by reference in codicil. 208-210. 215-218, 342-351. RESIDUARY DEVISES AND BEQUESTS, 714-721. see Abatement of Legacies and Devises ; Satisfaction, blending realty and personalty, see Abatement of Legacies and Devises, lapsed devises, 717, 718. lapsed legacies, 711-714, 720, 721. residue of residue, 720, 721, and note, void bequest. 715-717. void devise. 714, 715. RESIDUARY LEGATEE EXECUTOR, 520, note. 778 INDEX. [The figures refer to pages.] RETAINER, see Satisfaction, for contingent claims, 613-619. for debts barred by statute of limitations, 697, 698. REVIVAL OF WILLS, 368-383. , , *. ^ a oai effect of destruction of earlier revoked will before revival attempted, dsi, effect of mistaken notion that revocation of reviving will leaves revived will operative, 382, 383. , . v •,, or-o o-o oqo effect of revocation of will expressly revoking earlier will. ^»»-^'-'' ^^^* effect of revocation of will impliedly revoking earlier will, 380, 381. holographic wills, 351, note. , variance between rules of common-law and ecclesiastical courts, dbS, dOJ. REVOCATION OF PROBATE AND OF ADMINISTRATION, see Probate and Administration. REVOCATION OF WILLS, . by burning, tearing, canceling, obliterating, mutilating, or otherwise de- stroying, 241-271. burning, 242-24.5. and note. cancellation, 249-253, 254, note, 262-206. destruction, 248, note, 251, 252. mutilation, 254. note. obliteration, 253, note, 256, 257, note, 262-266. tearing, cutting, 248. scratching, 248. uncompleted act, 246-248. union of act and intent, 241-248. by circumstances, adoption of child, 298-301. birth of children, 272-274, 283-290. and note. conveyance, 290-293, and note, 296. death of beneficiaries, 295, note. divorce, with adjustment of property rights, 301-306, and note. increase in value of estate, 294, 296, 297. insanity of testator, 294. loss of estate, 295. marriage and birth of children, 272-274, and note. marriage as affecting man's will, 274, note, 275, 276, and note, 295, 296. marriage as affecting woman's will, 276-283. provision for wife and child to prevent, 283-290, and note, by subsequent instrument, 229-241. capacity, need of testamentary, 230, 231, and note. conveyance, 290-293, and note. general revocatory clause, 232, 233, 235. implied revocation, 233-235, 238-241. improperly e.xecuted writing not a will, 241, 242, 254-256, 262-266. ^'last" or "last and only" will, 238-241. properly executed writing not a will, 236, 237, and note, capacity, testamentarj', to revoke, 230, 231, and note, cotlicil, as affected by revocation of will, 258-261, and note, dependent relative revocation, 308-337. evidence of mistake where revocation by writing, 335. mistake as to effect of revoking a reviving codicil on revival of old will, 382, 383. mistake as to loss of old will, 316, 317. mistake as to revival of old revoked will, 317, 318. mistake as to validity of new will, 308, 309, and note, 336, 337. mistake as to validity of substituted words or pages, 310, 311, 323- 834. INDEX. 779 [The figures refer to pages.] REVOCATION OF WILLS— Continued, mistake of fact, 309. mistaken advice, 311-313, and note. mistake of law as to capacity of substituted beneficiary to take gift, 313-315. and note. mistake of law in general, 336. 337. revocation in order to make new will. 319-323. ann note, evidence as to revocation, 252, 253, 266-268, 2S7-290, 29S, 307. partial revocation, 254-256, 266-271, and note, 296. presumption where will not found, 307. prevention of revocation by fraud, 245, note, ratification of revocation, 246, note, testamentary capacity to revoke, 230, 231, and note, uncompleted act, 246-248. union of act and intent, 241-248. will as affected by revocation of codicil, 261, note. SATISFACTION, 734-745. antecedent gift as, 742-745. debt owed by legatee. 748-752. distinguished from ademption, 722, note, of residue, 734-741. SCRATCHING, see Revocation of Wills. SIGNATURE, see Execution of Wills. SOLEMN FORM, probate in, 507, note. SPECIFIC LEGACIES AND DEVISES, see Abatement of Legacies and Devises ; Probate and Administration. SPIRITUALISM, see Mental Capacity. STATUTES, see Index to Statutes, 753. SUBSCRIBING WITNESS, see Execution of Wills ; Witnesses. SUBSCRIPTION, see Execution of Wills. SURVIVAL OF ACTIONS, see Probate and Administration. TEARING, see Revocation of Wills. TESTAMENTARY CAPACITY AND INTENT, 9-82. see Aliens ; Conviction of Crime ; Coverture ; Fraud ; Infancy ; Mental Capacity; Mistake; Revocation of Wills; Undue Influence. TITLE OF EXECUTORS AND ADMINISTRATORS, see Probate and Administration. UNDUE INFLUENCE, 31-50. affecting part of will, 48-50. burden of proof, 40, 44, and note, 45, note, confidential relations as afl:ecting, 43-45, and note, evidence of, 36, note, 42, note, 43, note, 47, 48, and note, fraud distinguished from, 31, note, 37, note, illicit relations as affecting, 46, and note, inequality of disposition of property, 37, 39, 40. relation to mental capacity, 47, 48. 780 INDEX. [The figures refer to pages.] UNDUE INFLUENCE— Continued, Spiritualism, 30, note, what is, 35, 36, note, 37, note, 42, note. UNITED STATES, as claimant, Gil, note, history of wills in, 7, 8. USES, 3, 5. WILLS, see Execution of Written Wills ; Republication of Wills ; Revival of Wills; Revocation of Wills; Witnesses, animus testandi, 165, 166. conditional wills, 103-107. distinguished from contracts to bequeath or to devise, 90-92. distinguished from deeds, 83-86. distinguished from gifts causa mortis, 87-89. history of wills, personalty, 6. 7. realty, 3-6 holographic, 94-97. in writing, 93, 9i. joint and mutual, 107-111. materials for written will, 93, 94, and note, nuncupative wills, 97-103. olographic wills. 94-97. separate sheets, 130, note. WITNESSES, see Execution of Written Wills, attesting, competency of. 186-202. executor as, 197-200, and note. husband or wife of beneficiary, 192-197. testifying, privilege of attorney who drew will, 201, 202. WORDS AND PHRASES, "ademption," 722, note, "administration," 521, note. "administrator cum testamento annexo," 521, note, "administrator de bonis non," 521, note. "administrator de bonis non cum testamento annexo," 522, note, "administrator pendente lite," 522, note, "advancement," 723. "apparent," 256, 257, and note. "attestation," 174, note, "bequeath," 2. "bequest," 2. "civil death," 444. "consanguinity," 385. "credible witness," 188, 190, note, 198. "delusion," insane, 24. "descent," 384, and note, "devise," 2. "devisee," 2. "devisor," 2. "disposing memory," 18, note, "disposing mind," 18. note, 19, note, "distributee," 392-395. "end of will." 122-123, 127, and note, "executory devises," 4. "gift causa mortis," 89, note. INDEX. 781 [The figures refer to pages.] WORDS AND PHRASES— Continued, "heir," 384. "holographic will," 96, note, "hotchpot." 725, note, "idiot," 14. "insane delusion," 24-27. "joint will," 111, note, "joint and mutual will," 111, note. "legacy," 2. "legatee," 2. "mutual will," 111, note, "next of kin," 395, note, "nuncupative will," 101, note, "ologi-aphlc will," 96, note, "portion," 742. note. "presence," 153, 154, 157, 158, 161, 162, note. "probate in couiiiion form," 507, note, "probate in solemn form," 507, note, "qualified heir," 477. "residuary bequest," 715-717, 718-720. "satisfaction," 722, note, "special administrator," 522, note, "testament," 2. "testamentary depositions," 88, 89, note, 222-225, and note. "testator," 2. "undue influence." 35, 36, note, 37, note, 42, note, "will," 1, and note, 122. WRITTEN WILLS, see Wills. VIST PUBLISBIMS CO., FBIlCniBS, BT. PAUL, XIKH. mT^,T>f3TTY X)f CAUPORNU LOS ANliEr,«S UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 683 693 6 1 houri. P I ■'MOBBBSBKB^^^^^m ■-IV-*>*.^,^M