T
I89Z-

THE LIBRARY

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW

BOOKSTORE

BATON ROUGE
LA.

From
.JACKSON

iW BOOKS

nberlon Square

BY THE SAME AUTHOR.

A TREATISE ON SUSPENSION OF THE POWER OF ALIENATION, AND
POSTPONEMENT OF VESTING, UNDER THE LAWS OF NEW YORK,
MICHIGAN, MINNESOTA, AND WISCONSIN.

In One Octavo Volume. Price $4.50.

For sale by all Law Booksellers. Sent, express prepaid,
on receipt of the price by the publishers,

BAKER, VOORHIS & CO., New York.

PRINCIPLES

OF THE

LAW OF WILLS

WITH SELECTED CASES.

STEWART CHAPLIN,

Professor of Law in the Metropolis Law School, New York, and Author of
" Chaplin on Suspension of the Power of Alienation."

NEW YORK:
BAKER, VOOKIIIS & COMPANY.

1X92.

PREFACE.

This book is composed in part of text, devoted to stating and
explaining the principles and the important features of the law
of wills ; and in part of selected cases in which the facts illus-
trate and the opinions expound and apply that law. The mam
purpose in preparing it has been to furnish a book specially
adapted to the needs of law students. All statement and discus-
sion, therefore, of such details as do not assist in a thorough and
accurate comprehension of the scope and principles of the sub-
ject, have been excluded. But abundant citations in the notes,
of decided cases— carefully selected from the whole range of
English and American decisions— not only furnish authority for the
etatementa in the text, but direct attention to the best material for
wider reading and study. Within this range, no pains have been
spared in the effort to render the text complete, accurate, and
dear.

As for the selected cases, they have been chosen solely with
reference to their intrinsic value for the present purpose, withoul
regard to locality of jurisdiction, or date. Some of them are
English ami others American. The latter represent nearly every

American State. One Of the cases was decided in 1654; nearly

all of them are modern, a large Dumber recent, and several were

decided in this pre-ent year.

In -Mine instances where such a course appeared desirable, the
statements of the text have hen followed with a succession oi
" Illustrations," each of which gives a very brief statement of facts
from a reported case, with the decision of the court. Thus, for

(V)

LAV

Vi PREFACE.

example, under Execution, light is thrown on the meaning of the
common statutory phrase, " in the presence of the testator," by
seventeen illustrations which serve to mark out the proper boun-
daries of the requirement and the bearing of which is summed up
in the text.

It would be hardly justifiable to express a conviction that this
book will prove as useful to practising lawyers as to the student.
But it is believed that it will prove useful even to them as a com-
pact and careful review and summary of the important principles
and doctrines in its field, and as a convenient means of reference to
the best and most telling authorities. The very wealth of material
in the large treatises,— some of which are beyond all need of praise
for their great worth and practical value, — often renders it difficult
to determine which of the army of cases cited are the best for
reading or reference. Here the citations are, so to speak, few, but
they are carefully chosen and important. For lawyers who have
not convenient access to large libraries, the selected cases also
constitute a reservoir of valuable original authorities.

The book is furnished with a full index, and the table of cases

refers both to the official reports and to the volumes of the National

Reporter System.

s. c.
New York, September, 1892.

CONTENTS

INTRODUCTION,

PAGE
1

CHAPTER I.
TESTAMENTARY INCAPACITY.

T T - - - - 5

I— Infancy,

7
II. — Coverture,

III.— Alienage,

IV.— Chime, 10

V.— Mental unsoundness, - 12

CHAPTER II.

UNDUE INFLUENCE.— FRAUD, 95

CHAPTER III.
EXECUTION.

I. —Signing by the testator, - ... - 214

EL— Making or a.oknowi«edgment ok signature before wit-

23(5
RE88EB,

°41

[TJ.— Declaration of the will to witnesses,

2(54
IV.— RBQUE81 TO WTTNl - TO BIGN,

0f57
V.— ATTESTATION UJD SIGNATURE hy wiim.sses, -

CHAPTEB IV.

(vii.

REVOCATION AND REPUBLICATION,

Vlll CONTENTS.

CHAPTER V.
FORM, NATURE, AND SCOPE OF WILLS.

PAGE

I.— Tee form of the instrument, 382

II. — Conditional wills, 397

III. — Contracts concerning testamentary dispositions, - - 408

IV. — Joint, simultaneous, double, alternative, and duplicate

wills, 421

V. — Incorporation by reference, 425

VI. — Illegal provisions, and incapable beneficiaries, - - 426

VII. — Nuncupative wills, 429

VIII. — Conflict of laws, 436

IX. — Miscellaneous, 437

CHAPTER VI.

CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW, - 438

APPENDIX— The English Wills Act, 469

INDEX, 483

TABLE OF CASES.

Adams r. Field (21 Vt. 256), 226.
Adams v. Spaulding (12 Conn. 359),

454.
Adams, In Goods of (L. R. 2 P. & D.

367), 383.
Addington r. Wilson (5 Ind. 137), 24.
Addy P. Grix (8 Vesey 505), 226.
Aikin p. Weckerly (19 Mich. 482), 276.
A lexander v. Beadle (7 Cold. 126), 259.
Allen p. Allen (2 Overt. 172), 259.
Allen v. Griffin (69 Wis. 529, 35 N.W.

Hep. 21), 17.
Allen P. Public Administrator (1 Bradf.

Sur. 311), 123.
Allen's Will (25 Minn. 39), 264, 276.
Almosnino, In re (29 L. J. Pr. 46), 426.
Alpaugh, Matter of (8 C. E. Green

5i)7 1, 284-285.
Alston p. Jones (10 Paige 100), 194.
Ambre P. Weishaar<71 111. 109), 277.
Am. Seamen's Friend Soc'y v. Hopper

(33 N. Y. 619), 16.
Amory v. Fellows (5 Mass. 219), 291,

307.
Anderson v. Anderson (112 N. Y. 104,

19 N. E.), 427.
Andreas p.Weller (2 Green Ch. (N. J.)

COS,, -J1.
Andrews r. Hrewster (124 N. Y. 433,

J 7 N. K. *56), 409.
Anstice r. Brown (6 Pai. 448), 10
A]. pel p. Byers (98 Peun. St. 479), 452,

462.
Appleby /•. Brock (76 Mo. 314), 92.
ArberyV. Ashed Hagg. 814), 22, 23.
Armant, Succession 01 (48 La. Ann.

810), 882 236.
Armstrong p. Armstrong (29 Ala. 588),

828, 824 226.
Arnold P. Barle «2 Lee's Reports by

Phillimore, 529), 5.
. p. Hoover (6 Pa 21), 818, 820.
\ b p. Ash (9 Ohio St. 888), 819
Ash more, In Goods of (3 Curt. 758),

267.
Ash worth r. Carleton(12 Ohio St. 881),

430.

Astor, In the Goods of (1 P. D. 150),

424.
Atkins v. Sanger (1 Pick. 192), 132,

161, 172.
Attorney-General v. Parnther (3 Brown

C. C. 441), 69.
Auburn Theological Seminary v. Cal

houn (25 N. Y. 428), 194.
Austin v. Graham (8 Moo. P. C. 493),

23.
Avres v. Ayres (12 Atl. Rep. 621, 43

N. J. Eq. 565), 264.
Ayrey v. Hill (2 Add. 206), 21, 72-75.

Baker's App. (107 Pa. 381), 218.
Baker v. Batt (1 Curteis 125), 188.
Baker v. Dening (8 A. & E. 94), 271.
Baker v. Hoag (3 Selden 561), 433.
Baird, Matter of (47 Hun 77), 168.
Ballard v. Carter (5 Pick. 112), 322.
Bancroft v. Ives (3 Gray 367), 323.
Bancroft v. Otis (8 So. Rep. 286), 96.
Bangs v. Smith (98 Mass. 273), 455.
Bank v. Getchell (59 N. H. 281), 172.
Banks r. Goodfellow (L. R. 5 Q. B.

549), 18. 19, 45.
Banks v. Jones (60 Ala. 605), 441.
Bannatyne v. Bannatyne (2 Roberts.

472), 22.
Bannister p. Jackson (45 N.J. Eq. 702,

17 A. 692), 12.
Barbo v. Rider (67 Wis. 600, 31 N.W.

155), 16.
Barker r. Bell et al. (46 Ala. 216),

877-881.
Barksdale v. Hopkins (23 Ga. 332), 372.
Barnesly r. l'owel 1 1 Ves. Sr. 287), 210.
Barney t. Hays (29 Pac. Rep. 282),

885.
Barnum v. Barnum (42 Md. 251), 454
Barry r. Butlin (1 Curteis 637), 97. 190,

207.
Baitee ». Thompson (H Baxt. 518), 260.
Ba Uet r. Ilassell (17 Otto 602), 467.

Baskin p. Baskln (88 N. Y. 416), 232,

237-239, 285.
Batchelor v. Macon (69 N. < !. 545), 456.

(lx)

TABLE OF CASES.

Bateman v. Ponnington (3 Moore P. C.

328), 404.
Bates v. Barry (125 Mass. 83), 449.
Baxter v. Abbott (7 Gray 75), 135.
Baxter v. Knowles (12 Allen 114), 134.
Beadles v. Alexander (9 Baxt. 604), 263.
Beall v. Cunningham (1 B. Mon. 390),

161.
Beall v. Mann (5 Ga. 456), 264.
Beatty v. Labor (2 McCart. 110), 448.
Beaubien v. Cicotte (12 Mich. 459), 92.
Beauclerk v. Dormer (2 Atk. 313),

447.
Bennett v. Brooks (9 Allen 118). See

Index, " Sunday."
Bennett v. Jackson (2 Phillim. 190),

431.
Bennett v. Sherrod (3 Ired. (N. Car.)

303), 367-369.
Benoist v. Murrin (58 Mo. 307), 52.
Bergen v. Udall (31 Barb. 9), 190.
Bernsee's Will (17 N. Y. S. 669), 100-

101.
Betts v. Jackson (6 Wend. 173), 356,

360, 370.
Billinghurst v. Vickers (1 Phillim. 187),

160.
Bird v. Pope (73 Mich. 483, 41 N. W.

514), 408.
Birdsall v. Applegate (Spenc. (N. J.)

245), 446.
Blackstone v. Blackstone (3 Watts 335),

450.
Blair's Will, In re (16 Daly 540, 16 N.

Y. Supp. 874), 12.
Blake v. Knight (3 Curteis 547), 239.
Blake v. Rourke (74 la. 519, 38 N. W.

392), 21.
Blakey v. Blakey (33 Ala. 611), 133,

166.
Blewitt v. Blewitt (4 Hagg. 463), 183.
Bliven v. Seymour (88 N.Y. 469), 442,

468.
Blodgett v. Morse (141 Mass. 75), 318.
Boardman v. Woodman (47 N. H. 120),

93.
Bohanon v. Walcot (1 How. (Miss.)

336), 372.
Bolman v. Overall (80 Ala. 451, 2 So.R.

624 ; s. c. 86 Ala. 168), 408, 410, 411.
Bonard's Will (16 Abb. Pr. (N. S.)

128), 24.
Booth v. Baptist Church (126 N. Y.

215), 426.
Booth, Matter of Will of (127 N. Y.

109, 27 N. E. 826), 226-229.
Borlase v. Borlase (4 No. Cases 106), 329.
Botsford v. Krake (1 Abb. Pr. R. (n.

s.) 112), 431.
Boudinot v. Bradford (2 Yeates 170 ;

s. c. 2 Dall. 266), 327, 373.

Boughton v. Knight (L. R. 3 P. & D.

64), 16, 17, 18, 22, 24, 27, 38^8,

45.
Bovard v. Wallace (4 Sergt. & Rawle

499), 165.
Bowers v. Bowers (53 Ind. 430), 319.
Boyd v. Ebly (8 Watts 66), 51, 165.
Boylan v. Meeker (28 N. J. Law 274),

128, 141, 152.
Boyse v. Rossborough (6 H. L. C. 2),

40, 113-116.
Braddock, In the Goods of (1 P. D.

433), 273, 383, 425.
Bradish v. Gibbs (3 Johns. Ch. 523), 8.
Bradish v. McClelland (100 Penn. St.

607), 425.
Brady v. McCrosson (5 Redf. (N. Y.)

431). 230. See Index, " Wills."
Brainard v. Cowdry (16 Conn. 1), 450.
Bransby v. Haines (1 Lee's Rep. by

Phillimore 120), 7.
Brent v. Washington (18 Gratt. 535),

453.
Brick v. Brick (66 N. Y. 144), 52, 164.
Briggs v. Shaw (9 All. 517), 457.
Brimmer v. Sohier (1 Cush. 118), 441.
Brinckerhoof v. Remsen (8 Paige 488,

affi'd 26 Wend. 325), 243, 246.
Brittain v. Carson (46 Md. 186), 455.
Brook v. Chappell (34 Wis. 405), 429.
Brooke v. Townshend (7 Gill. 10), 52.
Brook v. Tunner (2 Mod. 170), 8.
Brown v. Brown (8 El. & Bl. 876), 367,

371.
Brown v. Clark (77 N. Y. 369), 248,

282, 315-316, 317, 376, 426.
Brown, In the Goods of (1 Sw. & Tr.

32), 367.
Brown v. McAllister (34 Ind. 375),

242.
Brown v. Mitchell (75 Tex. 9, 12 S. W.

606), 12.
Brown v. Moore (6 Yerger 272), 163.
Brown v. Ward (53 Md 376), 12, 17,

21, 24, 54.
Brunt v. Brunt (L. R. 3 P. & D. 37),

329-330
Brush v. Holland (3 Bradf. 240), 164.
Brush v. Wilkins (5 Johns. Ch. 510),

318
Bryce, In the Goods of (2 Curt. 325),

223.
Budlong, Matter of (126 N. Y. 423, 27

N. E. 945), 24, 108-113,
Bulkley v. Wilford (2 Clark & Fin.

102), 210.
Bull v. Bull (8 Conn. 47), 455.
Bundrich «. Haygood (106 N. C. 468,

11 So. E. 423), 431.
Bundy v. Hyde (50 N. H. 116), 172.
Bundy v. McKnight (48 Ind. 502), 85.

TABLE OF CASES.

Burgoyne v. Showier (6 Rob. Eccl. Rep.

10), "291.
Burkkart v. Gladisk (123 Ind. 337,

24 N. E. 118', 17.
Burleigk v. Clougk (52 N. H. 267), 455.
Burns v. Burns (4 S. & R. 295), 325.
Burt i: Herron (66 Penn. St. 402). 456.
Burtenshaw r. Gilbert (1 Cowp. 49),

325, 356.
Burton v. Collingwood (4 Hagg. 176),

404, 407.
Burton v. Conigland (82 N. C. 99), 447.
Busk v. Lisle tKy.), (12 S. W. Rep.

762), 103-107.
Busknell v. Carpenter (28 Hun 19, 92

N. Y. 270), 450.

Callaway, In tke Goods of (L. R. 15

,P. D. 147), 423-424.
Campbell v. Beaumont (91 N. Y. 464),

456.
Campbell v. Campbell (130 111. 466, 22

X. E. 620), 13, 299.
Campbell v. Frenck (3 Ves. Jr. 321),

326.
( ampbell v. Jamison (8 Barr. 498),

366.
Campbell o. Logan (2 Bradf. 90), 271.
Canada's Appeal (47 Conn. 456), 242.
Card's Will (8 X. Y. Bupp. 297), 17.
Card v. Grinman (5 Conn. R. 168), 347.
Carey's Estate (49 Vt, 236), 314, 315.
Carle <■. [Jnderhil] (3 Bradf. 101), 232.
Carlton ,-. Carlton do X. H. 14), 292,

293 296, 297.
I rmichael v. Carmicbael (72 Mich.

76,40 X. W. 17:'.;, 408, 409.
Carpenter b Hatch >t >//. (15 Atl. Rep.

•-'19, in X. II. 573, 171-17:5, 212.
fan- 0. Carr (1 Mer. -",.11 a .), 449.
Carrol] b. Bonhan 1 12 X. .1. Eq. ('.25, it

A. 871), 481.
1 utoH /•. House (22 All. Rep. litl). 97.
( artwrighl >. Cartwright (I Phillim.

90), 18, 22, 28, 55. 62 70, 66, 72.
I "ii v. Dade 1 1 Bro, Ch. 99). 278.
1 1 iton (Law Rep. 1 Ch. 187),

117.
Caton v. Caton (2 II. L. 137), '-".'7.

ifTman v. Lone (82 Pa St. 72), 148.
Caulfleld ''. Sullivan (85 X. V 153)

B84 159
1 i' ■■ I. late, //' /■< (188 Penn. Si

Ml. I;, p. 567), i.'i
I wthorn, In the Good of (8 Sv

Tr U7), i
I kwtborn 0. Haynes (24 Mo 286), 129.
( baffi 1 Bapti 1 Mi ionary Conven

ti. n I in Pal
f hambt 1 1 . Queen's Proctor (2 ( uri

413

Ckanev d. Home etc. Society (28 111.

App. 621), 212.
Ckase v. Kittredge (1 Allen 49), 271.
Cketwood v. Winston (40 N. J. L. 337).

447.
Ckickester 0. Cobb (14 Law T., N. S.

433), 219.
Ckrisman v. Ckrisman (16 Ore. 127. 18

P. 6), 12, 14.
Ckristian, In tke Goods of (2 Roberts.

110), 269.
Christmas v. Whinyates (3 Sw. & T

81), 324, 369.
Ckristopker v. Ckristopker (4 Burr.

2182), 318.
Clapp 1: Fullerton (34 N. Y. 190), 16,

50, 52, 54, 81, 92, 93, 163.
Clark, In Goods of (2 Curt. 329), 223, 226.
Clark d. Lear (cited in Cartwrigkt ».

Cartwright), 23, 70.
Clark r. Morrison (25 Penn. St. 453),

133, 165.
Clark v. Scripps (2 Roberts. 563), 324.
Clark r. Smith (49 Md. IO61, 442.
Clark 1: State (12 Okio 483), 92.
Clark v. Vorce (19 Wend. 232), 298.
Clarke, Goods of (1 Sw. & Tr. 22),

216, 223.
Clausmann, Will of (24 Weekly Dig.

226), 117.
Clearwater's Will (2 N. Y. Supp.99),14.
Cleveland v. (arson (37 N. J. Eq. 378),

453.
Clifton v. Clifton .47 N. J. Eq. 227, 21

Atl. Rep. 333, 12.
Cloak i>. Hammond (L. R. 34Chj,Div.

355), 462, 466.
Cock r. Cooke iL. R. 1 P. & D. 241).

885, 390.
Cody r. Conly (27 Gratt. 313). 398.
Collin r. Comn (23 X. Y. 9), 206, 207.

2?9, 246, 265 267.
CofTin.in r. ColTman (8 B. E. Rep. 672 :

85 Va. 459 . 445.
< loghlan /-. ( loghlan (cited In Cart-

wrighl /-. Cart wi ighl ), 70
Coil v. Patchen (77 N. Y. 588 . 52
Cole r. Am Bapl etc. Boc'y (<>4 X. 11.

445, II Ail. Rep. 78), 414.
Cole d. Littlefleld 85 Me. 445), 456
Coles Will. /// n ( 19 \\ is 181, 5 N.

846 . Mi.
Coleman 0. Coleman (2 Vea. Jr. 689),

468.
Coles, In the Goods of (L. U 2 P. &

D. 862 . 890.
Colhoun p. Jones (2 Red! 84), 218.
Oollagan v. Burns '57 Blaine 149), 827,

176
Collins i Townlej (21 N J. Eq. 858),

1 1, 29, 80.

Xll

TABLE OF CASES.

Collison o. Girling (4 My. & Cr. 75),

440.
Colvin b. Fraser (2 Hagg. 266), 356,

363, 425.
Colvin r. Warford (20 Md. 357), 372.
Colyer, Goods of (14 P. D. 48), 386.
Comstock v. Hadlyme (8 Conn. 254),

86, 128, 139.
Conboy v. Jennings (1 T. & C. 622),

230-232.
Converse v. Allen (4 Allen 512), 154.
Converse v. Converse (21 Vt. 168), 12,

25-27.
Conway, Matter of (124 N. Y. 455, 26

N. E. 1028\ 230.
Conway v. Vizzard (122 Ind. 266, 23

N. E. 771), 212.
Coode, In the Goods of (L. R. 1 P. &

D. 449), 424.
Cook v. Winchester (Mich.) (46 N. W.

106), 279.
Cooke, Appeal of (132 Penn. St. 533,

19 A. 274), 9.
Coppin v. Dillon (4 Hagg. 361), 309.
Cottrell, In the Matter of (95 N. Y.

329), 2S7-289.
Cover v. Stem (67 Md. 449, 10 Atl.

Rep. 231), 386, 395.
Cowell v. Cornell (75 N. Y. 91), 97.
Cowley v. Knapp (42 N. J. L. 297),

385.
Cox v. Cox (4 Sneed 87), 260, 261.
Cox v. M'Kinney (32 Ala. 462), 450.
Craig v. Leslie (3 Wheat. 563), 10.
Cram v. Cram (33 Vt. 15), 92.
Crispell v. Dubois (4 Barb. 397), 190.
Crittenden, Estate of (Myr. Prob. R.

(Cal.) 50), 265.
Crockett v. Crockett (Meigs 95), 258.
Croft v. Day (1 Curteis 853), 188.
Cross v. Cross (8 Q. B. 714), 385, 396-

397.
Crossman v. Crossman (95 N. Y. 145),

425.
Cutter v. Butler (25 N. H. 343), 8.
Cutter v. Fanning (2 Iowa 580), 305.
Cutto v Gilbert (9 Moore P. C. 131),

372.

Dack v. Dack (84 N. Y. 663), 247.
Dadds, Goods of (Dea. & Sw. 290),

325.
Dair.tree v. Butcher (13 P. D. 102),

239.
Dale's Appeal (57 Conn. 127), 95, 97.
Dale v. Dale (38 N. J. Eq. 274). 97.
Damon v. Damon (8 Allen 192), 398,

402.
Dan v. Brown (4 Cow. 483), 84, 133,

165.
Daniel v. Hill (52 Ala. 430), 391.

Dart v. Dart (7 Conn. 251), 447.
Davis v. Calvert (5 Gill & Johns. 269),

162.
Davis v. Dunwoody (4 T. R. 678), 303.
Davis v. Fogle (124 Ind. 41, 23 N. E.

860), 319.
Davis v. Hendricks (12 S. W. 887, 99

Mo. 478), 408.
Davis, In the Goods of (3 Curteis 748),

232.
Davy o. Smith (3 Salk. 395), 277.
Delafield v. Parish (25 N. Y. 10), 13,

182, 187, 189, 190, 193.
Den v. Mayfield (5 Hayw. (Tenn.)

121), 258.
Denison's Appeal (29 Conn. 399), 17-

121, 123.
Denmead's Appeal (29 Conn. 309),

154.
Denny v. Pinney's Heirs (60 Vt. 524,

12 Atl. Rep. 108), 249.
Denson v. Beazley (34 Texas 191), 52.
Dew v. Clark (3 Addams 79), 15, 17,

18, 24, 41, 42, 50, 51.
Dewey v. Dewey (1 Mete. 353), 239.
Dewitt v. Yates (10 Johns. (N. Y.)

156), 444.
Dickerson, In re (55 Conn. 223, 10 Atl.

Rep. 194), 443.
Dickinson v. Barber (9 Mass. 225), 88.
Dickinson v. Swatman (30 L. J. (N.

S.) P. & M. 84), 371, 374.
Dietrich v. Dietrich (4 Watts 167), 165.
Diez, Matter of (50 N. Y. 88), 281, 422.
Dillon v. Grace (2 Sch. & Lef. 456), 8.
Dobson, In the Goods of (L. R. 1 P.

& D. 88), 400.
Dockum v. Robinson (26 N. H. 372),

431.
Dodworth v. Crow (1 Dem. 256), 274,

275
Doe v. Allen (12 A. & A. 451), 375.
Doe v. Evans (10 Ad. & El. 228), 326.
Doe v. Lancashire (5 T. R. 49), 323.
Doe v. Perkes (3 Barn. & Aid. 489),

84, 325, 334-335, 337, 340, 347.
Doe d. Chichester v. Oxenden (3 Taunt

147), 460.
Doe d. Clements v. Collins (2 T. R.

498), 460.
Doe d. Gore v. Langton (2 B. & A.

680), 464.
Doe d. Lord v. Needs (2 M. & W. 129),

465.
Doe d. Small «. Allen (8 T. R. 147).

95, 98.
Doe d. Strickland v. Strickland (8 C.

B. 724), 310, 425.
Dorman's Will, Matter of (5 Dem. 112),

81.
Dotts v. Feltzer (9 Penn. St. 88), 165.

TABLE OF CASES.

Xlll

Dousherty r. Dougherty (4 Mete.

(Ky.) 25), 407.
Dove r. Torr (128 Mass. 38), 453.
Downie's Will, Matter of (42 Wis. 66),

269.
Downing v. Marshall (23 N. Y. 373),

454.
Drake v. Lanning (N. J.) (24 Atl. Rep.

378), 420.
Drew i: Wakefield (54 Me. 296), 452.
Drummond v. Dnimmond (26 N. J.

Eq. 234), 447.
Dnimmond v. Parish (3 Curt. 522),

431, 433.
Duffle d. Corridon '40 Ga. 122\ 269.
Du Hourmeliii r. Sheldon (1 Beav. 79),

10.
Dunham's Appeal (27 Conn. 192), 18,

92.
Dunn p. Bank of Mobile (2 Ala. 152),

391.
Durant p. Ashinon (2 Rich. (S. Car.)

184;, 85, 163.
Durham P. Smith (120 Ind. 463, 22 X.

E. 383), 12, 18.
Dyer, Goods of (1 Hagg. 219), 383.

Earl i: Rowe (85 Me. 414), 446.
Karl.- p. Norfolk (36 N. J. Eq. 92), 95.
Kastis r. .Montgomery (Ala.) (9 So.

Rep. 311), 95.
Eaton >■. Benton (13 Hill (N. Y.) 576),

414.
Krk.it p. Klowry (43 Pa. St. 52), 149.
Eldred p. Warner (1 Ariz. 175, 25 Pac.

R. 800), 111.
Elkinton v. Brick (44 N. J. Eq. 158,

15 A. 891), 17. 21.
Kills, In Goods Of (2 Curt. 395), 279.
Ellis p. Cary (71 Wis. 176), 418.
Kills , Darden (86 Ga. 368, 12 S. E.

652 ,811.
Ellia p. Smith o Vesey 11 1, 225.
Ellmaker p. Hrinckl.v < 1 #» Leigh &

Rawle 77 . 151.
Elmore p. Mustin (28 Ala. 809\ 891.
Elms v. Elms (1 8w. & Tr. 155), 885-

B41,
Emerson, Good of (L. R. 9 [r. 443),

2 1 5.
Emery, Appellant (81 Me. 275 ; sub

nom. Hunt's Will, 17 A. 68), 818-

815.
Evans p. A.nderaon (15 Ohio Bt. 824),

819
Everetl p. Mount (22 Qa 82

■ it p. Everltl (29 N. V. 89), 157.

nJld b Ba i omb (84 VI B98), 161.
Fairfax' I >e\ i ee p. I [untei I .■
Cranch 608), 10, 128.

Farmer v. Kimball (46 N. H. 439),

454.
Faulds v. Jackson (6 N. C. App. 1),

283.
Fellows v. Allen (60 N. H. 439), 314,

315.
Fenwick v. Thornton (M. & M. 51),

163.
Ferguson-Davie v. Fergusou-Davie

(15 P. D. 109), 387.
Ferguson 8. Stewart (14 Ohio 140),

453.
Fettiplace v. Gorges (1 Ves. Jr. 46), 9.
Finch v. Finch (L. R. 1 P. & D. 371),

368.
Fincham v. Edwards (3 Curt. 63), 278.
Firth v. Denny (2 All. 471), 452.
Fisher, Re (4 Wis. 254\ 309.
Fisher v. Kimball (17 Vt. 323), 8.
Fisher v. Strickler (10 Barr. 348-, 415.
Flimm v. Davis (18 Ala. 132), 447.
Flint ham v. Bradford (10 Penu. St.

Flood v. Pragoff (79 Ky. 607), 242.
Florey v. Florey (24 Ala. 241), 50.
Forbes v. Gordon (8 Phill. 625), 404.
Force and Hembling's Case (4 Co. 61),

315, 316, 324.
Ford v. Ford (7 Humph. 92), 327.
Forney v. Ferrell (4 West Va. 729),

166.'
Forsyth v. Ganson (5 Wend. 558), 165.
Fortune r. Ruck (23 Conn. 1), 300.
Foster's Appeal (87 Penn. St. 67), 364-

366.
Foster's Estate (142 Penn. St. 62, 21

A. 70S), 24.
Fox p. Marston (1 Curt. 494), 318.
Fransen's Will (2 Casey 203), 366.
Freedley's Appeal (60 Penn. St. 344),

156.
French*. French (14 W. Va. 458), 407.
Fritz p. Turner (46 N. J. Eq. 515, 22

Ail. Rep. 122), 97, 216.
Frost p. \\ heeler (43 N. J. Eq. 573, 12

A. 612), 21.
Fuller p. Fuller (88 Ky. 845), 292.

Gage p. Gage (8 Curteis451), 239.
Gardiner p. Courthope I L. K. 12 P. D.

I I . 809.
Gardner v. Frieze et al. 1 19 Atl Rep.

118, 16 R. I. 640), 121 128.
Q irdner p. Guild (106 Ma , 25 . 154.
Gardner, In the Goods of (1 Bw. A Tr.

109), 866 867.
Gardner o. Lambacb (47 <ia. 188), 52
Gay p. Gay (84 AJa. 88, 4 Bo. Bt p I ' i,

::is.
Geale, //. n (8 Bw. & Tr. 480), 14, IS,

88 84

XIV

TABLE OF CASES.

Gehrkc v. State (13 Tex. 568), 93.
Gelston v. Shields (78 N. Y. 275), 444.
Gibson v. Gibson (9 Yerg. 329), 92.
Giddings v. Seward (16 N. Y. 365), 427.
Gilbert v. Chapiu (19 Conn. 346), 456.
Gilbert v. Knox (52 N. Y. 125), 246,

249, 265.
Giles v. Warren (L. It. 2 P. & D. 401).

329, 348-349.
Gilhara v. Martin (42 Ala. 365), 391.
Glancy v. Glancy (17 O. St. 134), 223,

230.
Glover v. Smith (57 L. T. 60), 287.
Goddard «. May (109 Mass. 468), 457.
Goerke's Will (Wis.) (50 N. W. 345),

389.
Gombault ». Public Adm'r (4 Bradf.

226), 22, 53, 59.
Goodell v. Hibbard (32 Mich. 47), 455.
Goodtitle v. Southern (1 M. & Sel. 299),

460.
Gould v. Lakes (6 P. D. 1), 375.
Gould v. Mansfield (103 Mass. 408),

409, 411. 416-418.
Gould v. Safford (39 Vt. 498), 431.
Gove v. Gawan (3 Curt. 1511, 282, 288.
Grabill v. Barr (5 Pa. 4411, 218.
Grant v. Grant (L. R. 5 C. P. [Exch.],

727), 462.
Grant v. Thompson (4 Conn. 203), 88,

141.
Grayson v. Atkinson (2 Vesey 454), 225.
Greeuwood v. Greenwood (cited iu

Cartwright v. Cartwright), 70.
Gregory «. Oates (Ky.) (8 S. W. Rep.

231), 9.
Griffith v. Differnderffer (50 Md. 466),

95. 150-160.
Grimball v. Patton (70 Ala. 626), 447.
Groce v. Rittenberry (14 Ga. 234), 454.
Grubbs v. Marshall (Ky.) (13 S. W.

447), 237.
Gulick v. Gulick (27 N. J. Eq. 498),

449.

Habergham«. Vincent (2 Ves. Jr. 204),

384, 386.
Hacker v. Newborn (Styles, 427), 99.
Hadden v. Fladgate (1 Sw. & Tr. 48\

9.
Hall v. Chaffee (14 N. H. 219\ 447.
Hall v. Hall (L. R. 1 P. & D. 481), 95,

99-100.
Hall v. Hancock (15 Pick. 258), 454.
Hall v. Waterhouse (5 Giff. 64), 9.
Halsey v. Paterson (37 N. J. Eq. 445),

453.
Hamilton's Estate (74 Pa. St. 69), 425.
Hammon v. Huntley (4 Cow. 493), 165.
Hammond v. Dike (42 Mina 273, 44

N. W. 61), 212.

Hard v. Ashley (117 N. Y. 606, 23 N.

E. 177), 441.
Harder v. Harder (2 Sandf. Ch. 17),

417.
Hardy v. Merrill (56 N. H. 227), 92, 93,

172.
Hardy v. Wilcox (58 Md. 180), 455.
Harkius, In the Will of (N. Y. Law

Journal, May 20, '92, p. 478), 283-

284.
Harmony Lodge,' Appeal of (127 Penn.

St. 269, 18 A. 10), 21.
Harrel, etc. v. Harrel, etc.(l Ky. 203),

169-171.
Harrel v. Ward (2 Sneed 611), 259.
Harris v. Berrall (1 Sw. & Tr. 153),

357.
Harrison v. Jewell (2 Dem. 37), 442.
Harrison v. Rowan (3 Washington Ct.

Court 580), 13, 151.
Harrison's Appeal (100 Penn. St. 458),

141.
Harvey v. Anderson (12 Ga. 69), 163.
Harwell v. Lively (30 Ga. 315), 372.
Harwood v. Goodright (Cowp. 87),

417.
Hastings v. Rider (99 Mass. 622), 92,

93.
Hatfield v. Thorp (5 B. & Aid. 589),

303.
Hathom v. King (8 Mass. 371), 14, 15,

29.
Hauberger v. Root (6 Watts & Serg.

431), 133, 165.
Haus v. Palmer (21 Penn. St. 296), 430,

431.
Havard v. Davis (2 Binn. 406 \ 366.
Haven v. Hilliard (23 Pick. 10), 299,

307.
Haven v. Howard (23 Pick. 10), 297.
Hawes v. Humphrey t9 Pick. 350),

297, 300, 307, 322. "
Hawke v. Euyartetf al. (46 N. W. Rep.

422, 30 Neb. 149), 427.
Hawkins v. Hawkins etf al. (54 la. Rep.

443, 6 N. 699). 292. 304-305.
Hawley v. Northampton (8 Mass. 38),

447.
Hays, Goods of <2 Curt. 338), 431.
Head p. Head (1 T. & R. 138), 208.
Heald r. Thing (45 Me. 392), 92.
Heath v. Withington (6 Cush. 497), 9.
Hebden, Will of (20 N. J. Eq. 473,,

431.
Heck v. Clippinger (5 Penn. St. 588),

453.
Heil brim's Estate (9 Penn. Co. Ct. R.

350), 97.
Hemphill v. Moody (62 Ala. 510), 442.
Henshaw v. Foster (19 Pick. 312),

TABLE OF CASES.

Herbert v. Tarball (1 Keb. 589), 6.
Herster p. Herster (116 Pa. St. 612, 11

Atl. Rep. 410), 148.
Herster b. Herster (16 Atl. Rep. 342,

122 Perm. St. 239), 136-150.
He<s' Will (Minn.) (51 N. W. Rep.

614), 95.
Hewitt. .Matter of (91 X. Y. 261), 230.
Biggins ». Carlton (28 Md. 115), 17,

265.
Hi --ins. In re (94 X. Y. 554), 228.
Hill v. Bank (45 X. II. 270), 457.
Hill p. Bowers (120 Mass. 135), 454.
Hindmarsh b. Carlton (8 II. L. C. 160),

268.
Bindson /•. Weatherill (5 De Gex, M.

A- G. 301), 205.
Hiscocks p. Uncocks (5 Mees. & "W.

362), 460, 465.
Biae v. Fincher (10 Ired. L. 139), 347.
Hi.v /•. Whittimore (4 Met. 545), 21,

?0-72.
Bobbs P. Knight (1 Curt. 768\ 353.
Bodsden p. Lloyd (2 Bro. Cb. 534),

315.
Hodgson v. Tex (3 Ch. D. 122\ 449.
Boerth b. Zable (Ky.) (17 S. W. Hep.

360), 24.
Holdfaal B. Dowsing (2 Stra. 1253),

801, 302.
Holgate, In the Goods of (1 Sw. & Tr.

261 , 282 ■:
Booton o. Head (3 Pliillim. 26), 371.
Horn r. Pullman (72 X. Y. 269, s. c.

in Hun 171 , 13, 14, 24, 164.
Borton b. Johnson (18 Ga. 396), 272.
tauer '-. Hoshauer 26 Penn. St.

mi . 189, 264.
Hoskins <. Boskins (Ky.) (7 S. W.

546 .11.
Boughton b. Kendall (7 All. 76), 453.
How r. Goodfrey (Finch's R. 861 ,

185
Bowel! '. Barden :: Dev. W2), 87.
Boysradt b. Kingman (22 X. Y.

Hubbard b. Alexander (8 Ch. Div. 788),

Hubbard b. Hubbard <* X. Y. L96),

182 186.
Hubbard p. Lloyd (6 '*nsh. 528 , 154.
Budson '. Hudson (87 Ga 678, 18 B.

I.. 588 , 120.
Hughes i IIh he 12 B Mon. 1 15),

i.,;
Hughes «p. Hughes' Ex'r (81 Ala 519),

Hughes p. Knowlton (87 Conn. 129 ,

Hugo, In IIh I ■•! (2 P I'

122 I:-;

Hiiffuenin v. Basely (14 Vesey Jr. 273),

193.
Hulme v. Tenant (1 Lead. Cas. Eq.

679), 9.
Hunt v. Hunt (4 Gray 190), 446.
Hunt, Goods of (L. R. 3 P. & D. 250),

437.
Hunt, In re (110 N. Y. 278, 18 N. E.

106), 228.
Hurst p. Beach (5 Madd. 358), 440.
Hutchinson's Appeal (34 Conn. 300),

457.
Hyde p. Hyde (8 Vin. Ab. 142), 351,

355.

Idley v. Bowen (11 Wend. 227), 356,

360.
111. Cent. R.R. Co. v. Bosworth (133

U. S. 92, 10 S. Ct. R. 231), 12.
Ingoldby v. Iugoldby (4 No. Cas. 493),

377.
In -ram p. Fraley (29 Ga. 553), 456.
Ingram p.Wyatl (1 Haggard 384), 188.
Irish p. Smith (8 Serg.\\: Rawle 573),

88, 123.

Izard p. Executor of Izard (1 Dessau.
Rep. 116),

.lack r. Shoenberger (10 Harris 416),

366.
Jackson p. Betts (6 Cowen 377). 84.
JacksOn p. Durland (2 Johns. Cas. 314),

300, 306.
Jackson p. Holloway (7 Johns. 394),

344, 380.
Jackson p. Jackson (39 N. Y. 153),

214, 215, 216, 281.
Jack-on p, Kniffen (2 Johns. 31), 85,

89, 90, 128, 129, 140.

Jackson p. Patl ic (9 Johns. 312), 344.
Jackson p, Rodgers et al. (9 Johns.

312), 380.
Jackson r. Van Duscn (5 Johns. (N.

V.) 144), 269, 271.
Jackson i Woods (1 Johns. Cas. 163),

800, 806.
Jacobson, Matter of (6 Dem. 298), 229-

380.
James p. Cohen (8 Curt. Ecc 770), 871.
James b. Hacklej i Lfl Johns. 278), 165.
James b. Marvin (8 ( onn. 576), 872,

880.
.Idler on, In rr ilO Whcalon K. 428),

188
Jenkins p. Gaisford (8 Sw. & Tr. 98),

216 ' '•!

.1, Qn< * - i flncb (5 P. D. 106), 280.
Ji i - Parker (6 Gratl <\ a \61 i, 869,

.loi,,, on b. Hubbell (10 X J. Bq. 882),
W9, H8, 120.

XVI

TABLE OF CASES.

Johnson's Will, Re (40 Conn. 587), 325,

375.
Johnson v. Stanton (30 Conn. 303), 455.
Johnston v. Glasscock (2 Ala. 239),

431.
Jones v. Arterburn (11 Humph. 97),

258
Jones v. Hartley (2 Whart. 103), 366.
Jones v. Martin (3 Ambler 882), 414.
Jones v. Nicholay (2 Roberts. 288), 386.
Jones v. Robertson (37 Mo. App. 163),

97.
Jones, In the Goods of (4 Notes of

Cases 532), 232.
Jones v. Tucker (41 N. H. 546), 172.
Jordon v. Jordon's Adm'r (65 Ala.

301), 390-395.
Julke v. Adam (1 Redf . 454), 164.
Justice v. Lang (52 N. Y. 329).

Kane v. Bunn (R. I.) (20 Atl. Rep. 10),

122.
Kaufman, Matter of (131 N. Y. 620,

43 K Y. St. Rep. 282), 317-318.
Kanuss' Appeal (114 Pa. St. 10, 6 Atl.

Rep. 394), 149.
Keagle v. Pessell (Mich.) f52 N. W.

Rep. 58), 420.
Keeler's Will (3 N. Y. Supp. 629), 24,

81.
Keen v. Keen (L. R. 3 P. & D. 105),

375
Kehoe, In Goods of (13 L. R. (Ir.) 13),

426.
Keith v. Lothrop (10 Cush. 453), 92.
Keithley v. Stafford (126 111. 507, 18

N. E. 740), 20, 287.
Kellum, Matter of (52 K Y. 517), 282,

288.
Kellum, Matter of (50 K Y. 298), 209.
Kelly v. Reynolds (39 Mich. 464), 442.
Kempsey v. McGinness (21 Mich. 123),

92
Kendig v. Smith (39 111. 300), 447.
Kenebel v. Scrafton (2 East 530), 318,

323.
Kennedy v. Upshaw (66 Tex. 442, 1

S. W. 308), 17.
Kent v. Kent (62 N. Y. 560), 409.
Kerr v. Lunsford (31 W. Va. 659, 8

S. E. 493). 12, 14, 17, 95.
Keteltas v. Keteltas (72 N. Y. 312),

442.
Key v. Holloway (7 Baxt. 575), 260.
Killick, In Goods of (3 Sw. & Tr.

578), 279.
Kimball v. Crocker (53 Me. 267), 450.
Kimball v. Tilton (118 Mass. 311), 450.
Kinne v. Kinne (4 Conn. 102), 140.
Kinnebrew v. Kinnebrew (35 Ala. 625),

391, 395.

Kirkcudbright v. Kirkcudbright (1

Hagg. Ecc. 825), 371.
Kirkpatrick, Matter of (22 N. J. Eq.

463), 324.
Knox's Appeal (26 Conn 25), 17.
Knapp v Knapp (10 N. Y. 276), 360.
Knapp v. Reilly (3 Dem. 427), 216.
Knox, Estate of (131 Penn. St. 220, 18

A. 1021), 215, 217-222, 385.
Konvalinka v. Schlegel (104 N. Y.

125, 9 N. E. 868), 448.
Kramer v. Weinert (81 Ala. 414, 1 So.

26), 12.
Krell v. Codman (154 Mass. 454, 28 N.

E. 578), 418.

Lake r. Ranney (33 Barb. 49), 190.
Lansing v. Russell (3 Barb. Ch. 325),

191.
Lane v. Lane (95 N. Y. 494), 244-249,

266.
Lathrop v. American Board of Foreign

Missions (67 Barb. 590), 52.
Lathrop v. Borden (5 Hun 560), 52.
Laughton v. Atkins (1 Pick. 535), 370.
Lautenshlager v. Lautenshlager (80

Mich. 285, 45 N. W. Rep. 147), 395.
Lawrence v. Cook (104 N. Y. 632, 11

N. E. 144), 456.
Lawson v. Morrison (2 Dall. 286), 373.
Lawyer v. Smith (8 Mich. 411), 327,

369-370, 375.
Lay, Goods of (2 Curt. 375), 431.
Layman's Will, In re (40 Minn. 371,

42 N. W. 286), 17.
Leathers v. Greenacre (53 Me. 561),

430, 431.
Le Bau v. Vanderbilt (3 Redf. 384),

160-168.
Lee v. Dill (11 Abb. Pr. 214), 190.
Lee v. Lee (4 M'Cord (S. Car.) 183), 24.
Lee's Case (46 N. J. Eq. 193, 18 A.

525), 12, 21, 27.
Leech v. Leech (5 Clark (Penn.) 86,

affi'd 9 Harr. 67), 24.
Lemayne v. Stanley (3 Lev. 1), 224,

225
Leroy, Ex parte (3 Bradf? 227), 268.
Levis's Estate, In re (140 Penn. St.

179, 21 Atl. Rep. 242), 21.
Lewis, In the Goods of (1 Sw. & Tr.

31), 352-353.
Lewis v. Lewis (11 N. Y. 220), 239,

240, 241, 242-244, 247, 286.
Lewis v. Mason (109 Mass. 169), 162.
Lillie ». Lillie (3 Hagg. 184), 356.
Linch v. Linch (1 Lea 526), 263.
Lindsay v. Lindsay (L. R. 2 P. & D.

459), 402.
Lindsay, In ex parte (2 Bradf. 204),

403.

TABLE OF CASES.

xvn

Liney's Will (13 X. Y. S. 551), 116-

117.
Lisle d. Tribble (Ky.) (17 S. W. Rep.

740), 408.
Lister v. Smith (3 Sw. & Tr. 282), 250-

25:3.
Lockwood, Matter of (28 N. Y. St.

Hep. 164), 78-82.
Loder r. Whelpley (111 X. Y. 239, 18

X. E. 874), 97.
Long c. Zook (13 Penn. St. 400), 216,

219.
Lomichamp r. Fish (2 B. & P. (New

Rep. i 415), 15. 38.
Longford c Eyre (1 P. Wms. 740),

277.
Look. Matter of (26 X. Y. St. Rep. 745.

affl'd 125 X. Y. 762, 7 X. Y. S. 298),

339.
Look's Will, In re (5 X. Y. Supp. 50),

281
Lord v. Lord (58 X. II. 7), 173, 269.
Lovegrove, In the Goods of (2 Sw. &

Tr. 453), 421-422.
Lovell r. Quitman (88 X. Y. 377), 324.
Lowe r. Jolliffe (1 W. Bl. 365). 286.
Lower v. Clement (25 Penn. St. 63),

148.
Lucas r. Parsons (24 Ga. 640), 52.
Ludlow v. Ludlow (35 X. J. Eq. 480),

239.
Lyles r. Lyles (2 Xott & McC. (S. C.)

581), 884.
Lyons v. Campbell (88 Ala. 462, 7 So.

250), 97.

McCoon r. Allen (45 X. J. Eq. 708, 17

A. 820), 17.
McCoy r. Empire Warehouse Co. (125

V 'V 785, 27 \. E. Ins,, 247. 249.
McCulloch o. Campbell (48 Ark. 867,

.-. s. W. 590), 17.
McCune r. House (8 Ohio 144), 309,

429.
McCurdy o. Weal! (7 A. 566, 42 X. J.

Eq. 888), 876
McElwaine, Re(18 X. J. Eq. 499), 216,

227.
McGuire v. Kerr (2 Bradf. 256), '.':'.l
Mellu rh's Will, Matter of (17 N. Y

Week. Dig. 502), Bl
Mclntire v. Mclntire (64 X. 11.609, 15

Atl. R. 218), 819.
Mclntire p. Worthington (68 Md, 308,

12 \H. R. 251 I, 826.
McKinnon • . McKinnon - 16 V 718),

887, 895.
McMahon o. Ryan (20 Pa. St. :;

150.
McMichael v. Hunt (85 X C. 844),

449.

MeXaughten's Case (10 CI. & F. 200),

43.
McXeiledge v. Barclay (11 S. & R.

103), 453.
McTaggart r. Thompson (14 Pa. St.

149) 89 128 140.
Macka'y's'will', J n ' re (110 X. Y. 611,

18 X E. Rep. 433), 239-241.
Macknet v. Maeknet (24 X. J. Eq. 277),

455.
Macpherjon, Matter of (1 Con. (X. Y.)

224, 20 X. Y. St. Rep. 868), 58-59.
Main v. Ryder (84 Pa. 217), 219, 220.
Major v. "Williams (3 Curt. Ecc. 432),

371, 374.
Mandeville v. Parker (31 X. J. Eq.

242), 281.
Mann v. Grove (4 Ileisk. 403), 263.
Manning v. Pippen (11 So. Rep. 56),

418.
Marriot v. Marriot (1 Str. 666), 209.
Marsh v. Marsh (1 Sw. & Tr. 528),
Marsh v. Tyrrell (2 Haggard 84), 182,

190 192.
Marst'on v. Fox (8 Ad. & Ell. 14), 318.
Marston v. Judge (79 Me. 25, 8 Atl.

87), 308.
Marston v. Xorton (5 X. II. 205), 8, 9.
Marston >: Hoe (8 Ad. & El. 14), 128.
Martin's Case (L. R. 1 P. & D. 380),

407.
Martin r. Kirby (11 Gratt, 67), 457.
Martin r. Wdtion (1 Lee 130), 226.
Martin v. Wright (18 Wend. 460), 414.
Marx r. McGlynn (88 X. Y. 357), 117.
Mason v. Limbrey (4 Burr. 2515), :!55
Masterman '•. Maberly (2 Hagg. 235),

:',s6.
Masters, Estate of (1 Civ. Pr. R. (X.

Y.) 459), 376.
Masters v. Masters (1 P. Wins. 421),

888
Maxwell v. Hill (89 Tenn. 584, 15 S.

W. Rep. 253), 258-264.
Maxwell r. Maxwell (:! Mete. iKv.l

101), 402, 407.
May o. Bradlee(127 Mass. 414), 98.
Mayd, In the (J Is of (6 1'. I>. 17),

lilT.
Mayor, etc. >\ Bell (12 Lea 157), 268.
Meehan '•. H<>urk<> (2 Bradf. 885 . 871,
Meluish d. Milton (L. R. :i Ch. I >i v

27), 210
Merriam's Will ni\ X ^• s. 788), i
Merrill r. Morton (L. R. 17 Chan. Div.

882), 462.
Merrill /'. Roleton (5 Redf. 220), 24,

48 54,
Menitt p. Clason (12 John, 102 ; s. c.

kiiI, uinn , < llason '■. I'l.'iih \ , I I John,

r-d. 227.

Will

TABLE OF CASES.

Meurer, Will of (44 Wis. 392), 287.
Middleditch r. Williams (45 N. J. Eq.

?26, 17 A. 826), 16, 18, 24.
Miles' Will (4 Dana's Rep. 1), 225.
Miller ». Phillips (9 R. I. 141), 315.
Miller o. Shumaker (42 La. Ann. 398,

2 So. 456), 429.
Miller v. Travers (8 Bing. 244), 465.
Milligan, Goods of (2 Roberts, 108),

431.
Miltenberger v. Miltenberger (78 Mo.

27), 384.
Minkler v. Minkler (14 Vt. 125), 366.
Mitchell 8. Mitchell (16 Hun 97, affi'd

77 N. Y. 596), 241, 247.
Mole c. Thomas (2 Wm. Blackst.1043),

83, 345, 346, 347, 348, 350-352.
Monarque v. Monarque (80 N. Y. 320),

446.
Moore v. Dimond (5 R. I. 129), 454.
Moore v. Kino; (3 Curteis 243), 271.
Moore v. Moore (1 Phillim. 406), 371.
Moore i\ Moore (23 Tex. 637), 5.
Morey v. Sohier (63 N. H. 507, 3 A.

636), 314.
Morg&n v. Boys (Tavlor, Med. Jurispr.

2d(Amer.)ed. 555), 23.
Morison v. Tumour (18 Vesey 176),

225
Moritz v. Brough (16 Serg. & R. 403),

86 12^ 139
Morrell «'. Morrell (1 Hagg. 51), 432.
Morrill v. Foster (32 N. H. 358), 172.
Morrison, In the Will of (N. Y. St.

Rep.), 282.
Morrow, Appeal of (116 Pa. St. 440, 9

A. 660), 401-407.
Morse v. Scott (4 Dem. 507), 81.
Morton, In the Goods of (12 P. D. 141),

353
Morton v. Onion (45 Vt. 145), 315.
Mory v. Mitchell (18 Md. 241), 455.
Mosser v. Mosser (32 Ala. 551), 386.
Mowrv v. Silber (2 Brad. 133), 117.
Mullen, In re (5 Irish Eq. 309), 14.
Mundy v. Mundy (15 N. J. Eq. 290),

21 5; 241, 341-342.
Murfett r. Smith (12 P. D. 116), 18.
Minefield's EsUla.) (38 N.W. 170), 376.
Murfitt v. Jessop (94 111. 158), 442.
Myers v. Vanderbelt (84 Pa. St. 510),

383.

Napfle's Estate (134 Penn. St. 492, 19

A 679), 14.
Napier, In Goods of (1 Phillim. 83),

437.
Nash v. Hunt (116 Mass. 237), 93.
Neel v. Potter (40 Pa. St. 483), 122.
Neil v. Neil (1 Leigh (Va.) 6), 27, 276,

281.

Nelson v. McDonald (61 Hun 406), 437.
Nelson v. McGitfert (3 Barb. Ch. 158),

344, 372.
Nelson, Matter of (43 N. Y. St. Rep.

30), 288.
Nelson ». The Public Administrator

(2 Bradf. 210), 310-311.
Nesbit r. Lockman (34 N. Y. 167), 96.
Nesbit, Matter of (5 Dem. 287), 377.
Newberry v. Hinman (49 Conn. 130),

450.
Newburgh v. Newburgh (5 Mad. Ch.

364),
Newton v. Clarke (2 Curt. 320), 276,

279.
Newton v. Seaman's Friend Soc'y

(130 Mass. 91), 426.
Nexsen v. Nexsen (2 Keyes 229), 206,

Nichols v. Binns (1 Sw. & Tr. 239), 17,
09 54_58

Nichols b. Chandler (55 Ga. 369), 395.
Nichols v. Nichols (2 Phillim. 180),

250, 252, 253-258, 333.
Nickerson v. Buck (12 Cush. 332), 215,

239.
Noble v. Phelps (L. R. 2 P. & D. 276;

on appeal, L. R. 7 Eng. & Ir. Ap-
peals 580), 8.
Norman, In re (72 la. 84, 33 N W.

Rep. 374), 92.
Norton v. Bazett (Deane & Sw. 259),

279.
Noyes v. Southworth (55 Mich. 173),

315.
Nussear v. Arnold (13 S. & R. 323),

165.
Nutt v. Norton (142 Mass. 242), 317,

318.

Odenwaelder v. Schorr (8 Mo. App.

458), 241.
Oil Works v. Bickford (14 Lea 651),

263.
O'Neil, Matter of (91 N. Y. 516), 230.
O'Neill v. Smith (33 Md. 569), 430.
Onions v. Tyrer (1 P. Wms. 343), 325,

351 354 425
Oniw'ay v. Sanders (58 N. H 132), 172.
Orndorff v. Hummer (12 B. Mon. (Ky.)

619), 276, 281.
Orser v. Orser (24 N. Y. 51), 286, 289.
Osborn v. Cook (11 Cush. 532), 242.
Osgood v. Bliss (141 Mass. 474, 6 N.

E. Rep. 527), 313.
Osgood v. Breed (12 Mass. 525), 8, 9.
Osgood v. Manhattan Co. (3 Cowen

612), 133, 165.
Otto r. Doty (61 la. 23, 15 N. 578), 24.
Overton v. Bolton (9 Heisk. 762),

263.

TABLE OF CASES.

XIX

Owens v. Bennett (5 Harr. (Del.) 367),

232.
Owens d. Owens (100 X. C. 240, 6 S.

E. 794), 429.
Owston, In the Goods of (2 Sw. & Tr.

401s 14. 30-33.

Palmer d. Stephens (1 Dem. 478), 219.
Pancoast p. Graham (15 N. J. Eq.

294) 123.
Parhtt p. Lawless (L. R. 2 P. & D.

468), 96, 155.
Parker p. Duncan (62 L. T. (X. S.)

642), 9(3, 97.
Parker, Goods of (2 Sw. & Tr. 375),

431.
Parker, In re (L. R. 17 Chan D. 265),

462.
Parker v. Merchant (1 Phillim. 360),

4 is.
Parsell P. Stryker (41 X. Y. 480), 411-

414.
Parsons >•. Lanoe (1 Ves. Sen. 190),

400, 4ii2. 405, 407.
Parsons P. Parsons (2 Greenl. R. 298),

85.
Passmore v. Passmore (1 Phillim. 218),

386.
Patten p. Tallman (27 Maine 17), 307.
Patten p. Poulton (1 Sw. & Tr. 55),

36 1-364.
Patterson p. English (71 Pa. St. 454),

886.
Patterson p. Ilickey (32 Ga. 156), 327,

875.
Patterson >\ Patterson (6 Serg. & R.

56), 144.
Patterson's Will (13 X. Y. Supp. 463).

1 1.
Patton P. Allison (7 Humph. 332), 123,

360, 261
Paul p. Ball (81 Tex. 10), 449.
Pawtuckel p. Ballou (15 R. I. 58), 215.

...■ p. Payne (18 Cal. 291), 877.
Pearce p. Billings (10 R. I. 102), 150,
Pech p. Cary (27 N. V. 9), 21, 22, 289,

Peck '•. Halsey (2 P. Wma. 887), 465.
Peck's Will, In r< (17 N. Y. Bupp.

B Rich. 198), 162.
Pemberton p. Pemberton (18 Ve . 890),

Pemberton's Will (4 Atl. Rep 770,

10 N -I Eq. 520), L40.
P .... Lynch 1 1 Johns 549), 12.
tie - Murray (6 Hill 468), 227.

I ' pOOE /" i r \S\ \ \ . • .' 17.

P< ii in Towery (Ky.) (88. W. Rep

604 . '•»
Pi rrott p. Perrotl (14 East. 128), B44

Phelps v. Hartwell (1 Mass. 71), 132,

133, 161.
Phila. <fc Trenton R.R. Co. v. Simpson

(14 Pet. 448), 151.
Phillips v. Anglesey (7 Bro. P. C.

(H. L. C.) 443), 310.
Phillipps v. Chamberlaine (4 Ves. Jim.

51),
Phillips, Matter of (98 N. Y. 267), 214,

90s 239
Philip's Will, In re (19 X. Y. Supp. 13,

46 X. Y. St. Rep. 356), 369.
Pickens p. Davis (134 Mass. 252), 325,

327, 370-37 1 i.
Piercy, In Goods of (1 Roberts. 278),

14, '278.
Piper p. Moulton (72 Me. 155), 292.
Porter, In the Goods of (L. R. 2 P. &

•D. 22), 398, 407.
Porter p. Dunn (131 X. Y. 314), 409.
Post el al. p. .Mason et al. (91 X. Y.

539), 97, 203-211, 260.
Potter v. Jones (Ore.) (25 Pac. R. 769,

20 Ore. 239), 16, 24.
Potter, Matter of (33 X. Y. St. Rep.

936),' 237.
Potts v. Felton (70 Ind. 166), 275.
Potts /•. House (6 Ga. 324), 52.
Powell's Distr. p. Powell's Legatees

(30 Ala. 097), 380.
Prather p. McClelland (76 Tex. 574 (13

S. W. Rep.) 543). 12.
Price p. Powell (3 II. & X. 311 i. :i53.
Pridsren p. Pridgen (13 [red.L. (X. C.)

259 1. 267.
Prince <. Hazleton (20 Johns. 502),

429, 431, 43.Y
Provenchere's Appeal (67 Penn. St.

466), 150.
Provis p. Reed (5 Bing. 435), 86, 127,

1 10.
Pryor v. Coggin (17 Ga. 441), 325.
Pvm p. Campbell (6 Ell. & Bl. 370),

252.

Railroad Co. v. Gurley (12 Lea 46),

268.
Railway Co, p. Poster (88 Tenn. 671,

18 B W. Rep. 694), - , «i-:.
Railway Co. P. Hendricks (88 Tenn.

710. 18 s. W. Rep. 696), 268.
Railroad Co. p. Jones (9 Heisk. 2

-.'ii;;
Railroad Co. p. King (6 Heisk 269),

Railway Co p. Wynn (88 Tenn. 88

II 8. W. Rep. 811), 268.
Ralne, In the Q U ol (1 Sw. & Tr.

Ml., 122.
Rambler p. Tryon <7 Serg. & Rawle

90), «9.

TABLE OF CASES.

Randall o. Beatty (4 Stew. (N. J.) 643),

373.
Rankin v. Rankin (6 T. B. Monr. 531),

11.
Ray v. Ex'rs of Calvert (3 Strobh. (S.

Car.) 297), 27.
Rav r. Hill (3 Strobh. (S. Car.) 297),

14, 27-28.
Reaven, In Goods of (2 Curt. 369),
Redfern v. Bryning (L. R. 6 Ch. Div.

133),
Redmond v. Burroughs (63 N. C. 245),

453.
Reed v. Harris (6 Ad. & El. 209), 346,

349-350.
Reed 8. Hazleton (37 Kan. 321, 15 Pac.

Reporter 177), 385, 395, 397.
Reed a. Woodward (11 Phila. 541), 382.
Reel b. Reel (1 Hawks 247), 87, 89, 90,

129
Rees v. Rees (L. R. 3 P. & D. 84), 383,

425.
Reichenbacb v. Ruddacb (18 Atl. Rep.

432, 127 Penn. St. 564), 12, 16, 20,

95, 308.
Reid v. Borland (14 Mass. 208), 370.
Reid 8. Harris (33 E. C. L. R. 60),
Reynolds v. Reynolds (1 Speers L.

253), 27.
Rex v. Bettesworth (2 Stra. 891), 8.
Rhodes v. Weldy (46 Ohio St. 234, 20

N. E. 461), 319.
Rich v. Cockell (9 Ves. 369), 9.
Rich v. Gilkey (73 Me. 595), 309.
Richardson s. Richardson (35 Vt. 238),

140, 292.
Richmond, Appeal of (59 Conn. 226),

14.
Ricketts®. Turquand (1 H. L. C. 472),

460.
Rider v. Miller (86 N. Y. 507), 93.
Riggs et al. v. Palmer et al. (115 N. T.

506, 22 N. E. 188), 428, 429.
Riggs v. Riggs (135 Mass. 238), 279.
Riley v. Riley (36 Ala. 496), 380.
Rivere v. Rivere (3 Dessau. Rep. 195),

414.
Robert v. Corning (89 N. Y. 225), 450.
Roberts v. Roberts (2 Sw. & Tr. 337,
31 L. J. (P. M. & A.) 46), 407, 423.
Roberts v. Round (3 Hagg. 548), 425.
Roberts v. Trawick (17 Ala. 55), 97,

123.
Robertson v. Smith (L. R. 2 P. & D.

43), 395.
Robinson v. Adams (62 Maine 369),

24, 52, 92.
Robinson v. Allen (11 Gratt. 789), 455.
Robinson v. Brewster (111.) (30 N. E.
Rep. 683), 215, 281, 384, 385, 395-
396. •

Robinson v. Hutchinson (26 Vt. 38),

128, 140.
Robinson, In the Goods of (L. R. 2

Prob. 171), 403.
Robinson v. Raynor (28 N. Y. 494),

414.
Robinson v. Savage (111.) (15 N. E.

850), 292.
Robnet v. Ashlock (49 Mo. 171), 407.
Roe v. Vingut (117 N. Y. 204, 22 N.

E. 933), 445.
Rogers v. Diamond (13 Ark. 474), 265.
Rogers v. Rogers (N. J. Ch.) (23 Atl.

R 125), 441, 442.
Rogers v. Rogers (2 B. Mon. 324), 161.
Rohrer v. Stehman (1 Watts 463), 218.
Rollwagen v. Rollwagen (63 N. Y.

504), 33.
Roome v. Phillips (24 N. Y. 469), 447.
Rose v. Quick (30 Pa. St. 225), 385.
Ross ». Drake (37 Penn. St. 373), 457.
Rudden v. McDonald (1 Bradf. 352),

275.
Rudisill v. Rodes (29 Gratt. 147), 374.
Rue High's Appeal (2 Dougl. (Mich.)

515), 386.
Rugg v. Rugg (83 N. Y. 592), 246,

282.
Rutherford v. Rutherford (1 Denio 33),

239, 243.
Rutland v. Gleaves (1 Swan. 200), 260,

261.
Rymes v. Clarkson (1 Phillim. 33),

383.

Sadler v. Sadler (60 Miss. 251), 430.
St. Leger's Appeal (34 Conn. 434), 13.
Salmon Falls Co. v. Goddard (14 How.

446), 219.
Sanborn v. Flagler (9 Allen 474), 219.
Sartwell v. Wilcox (20 Pa. St. 117),

148.
Saunders v. Saunders (6 N. C. 522),

363, 364.
Savory, Re (15 Jurist 1042), 215.
Scaife v. Emmons (84 Ga. 619, 10 S.

E. 1097), 430.
Scammell v. Wilkinson (2 East 552), 8.
Schildnecht v. Rompf (Ky.) (4 S. W.

Rep. 235), 24.
Schmidt 8. Schmidt (Minn.) (50 N.

W. 598), 95.
Schultz v. Schultz (33 N. Y. 653),

358-361.
Scott v. Fink (45 Mich. 241, 17 N.

799), 372.
Scruby 8. Fordham (1 Add. 74), 309.
Seamen's Friend Soc'y v. Hopper (33

N. Y. 619), 50, 52, 81.
Sears v. Dillingham (12 Mass. 358),

292.

TABLE OF CASES.

XXI

Sears r. Shafer (2 Seld. 272), 192.
Seebrock v. Fedawa (46 N. W. Rep.

650), 96.
Sefton v. Hopwood (1 F. & F. 578),

101-102.
Seiter v. Straub (1 Dem. (N. Y.) 64), 6.
Segrave p. Kirwan (1 Beatty 157), 209,

211.
Selwin r. Bronne (Cas. temp. Talbot

240, 4 Bro. P. C. 179), 98.
Semmes v. Semmes (7 Har. & J. (Md.)

388), 353-351..
Severance v. Severance (Mich.) (52 N.

W. 292), 95.
Sewdl p. Slingluff et al. (57 Md. 537),

253, 385.
Shailer v. Bumstead (99 Mass. 112),

123-135, 140, 166, 168, 170.
Shakespeare v. Markham (72 N. Y.

400; B. c. 10 Hun 311), 414.
Sharp v. Hall (86 Ala. 110, 5 So. 497),

384.
Bhaw p. White (28 Ala. 637), 226.
Sheldon's Will (16 N. Y. S. 454), 97.
Shepherd P. Xabors (6 Ala. 631), 391.
Sherratl p. Mountford (L. R. 8 Ch.

928), 463.
Shires p. Glascock (2 Salk. 68S), 278.
Shottfl p. Poe (47 Md 513), 454.
Silverthorn, In re (68 Wis. 372, 32 X.

W. Rep. 287), 13. 17.
Silveus' Ex'rs v. Porter (74 Pa. St.

448), 148.
Simmons v. Leonard (Tenn.) (18 S.

W. Rep. 880), 215.
Simmons r. Simmons (26 Barb. 68),

872.
Sims ,. Conger (89 Miss. 234), 457.
Sinclair «. Hone (6 Ves. 608), 404, 405.
Singleton p. Tomlinson (L. R. 3 App.

Cas. W4), 426.
Sisters of Charity p. Kelly (67 N. Y.

109), 280, 232.
Slinn, In Goods of (15 P. D. 156), 386,

895.
Small- v v. Small. -V '70 Maine 545),

297-29!).
Smart, In the Goods of (9 P. D. 64),

424.
Sin.- v. 8mee(5P. D. 84), 18, 19.
Smiley p. Qambill (2 Head (Tenn.)

164), 825.
Smith p. Burch (92 N. V. 828), 449.

Smith p, I (avis (1 Grant's ( 'a-. (Penn I

158), (49

Smith p, Dolby 1 1 Harring. 850), 864

Smith r. Dunwoody I L9 Ga. 387), 1 16,

Smith p. Fellows i 181 Mass. 80), 1 19

Smith p. Penner (1 Gall. IT" . BO

89, in), in.

Smith i Han (4 Barb. 88), 844

Smith, Matter of Will of (95 N. Y.

516), 97.
Smith, Matter of (39 N. Y. St. Rep.

698), 288.
Smith r. Morgan (2 Moody & Rob.

257), 163.
Smith p. Smith (17 Gratt. 268). 446.
Smith v. Tebbitt (L. R. 1 P. & D. 398),

18, 19, 50.
Smith's Will (6 Phila. 104), 431.
Smith, Will of (52 Wis. 543), 24.
Snelling's Will (17 N. Y. Supp. 683),

14.
Snider v. Burks (Ala.) (4 So. Rep. 225),

24.
Snvder v. Bull (17 Penn. St. 54), 293.
Snyder v. Snyder (45 K W. 818, 77

Wis. 95). 408.
Society v. Price (115 111. 623, 5 N. E.

126), 18.
Sommers v. Railroad Co. (7 Lea 201),

263.
Soward v. Soward (1 Duv. 126), 275.
Sparhawk p.Cloon (125 Mass. 263), 455.
Sparhawk p. Sparhawk (10 Allen 155),

298, 299, 300.
Spencer p. Rogers (cited in Armstrong

v. Armstrong, 29 Ala. 538), 226.
Sperber r. Balster (66 Ga. 317), 395.
Sperling, In Goods of (3 Sw. & Tr.

272), 267.
Spratt p. Spratt (76 Mich. 384, 43 N.

W. 627), 12.
Sprigge v. Sprite (L. R. 1 P. &■ D.

608), 330, 356-358.
Stacey, In the Goods of (Deane 6), 422.
Stackhouse v. Horton (15 N. J. Eq.

202), 52.
Staines v. Stewart (2 Sw. & Tr. 320),

327.
Stanton v. Weatherwax (16 Barb. 259),

50, 52.
Staples /•. Wellington (58 Me. 153 , 21.
Starkey's Appeal (61 Conn. 199), 108
Starretl p. Douglass (2 Fates 16), 128.
State p. Clarke (8 Herring (Del.) 557),

6 7.
State ,-. H,„l<rc (50 X. II. 510.. IT '

Staser p. Hogan 1 120 In. I 807, 21 N".
E. 911, 22 V E. 990), 92, 218.

Stat.- /•. Pike (61 N. II. 105), 98.

Steadman D Stea.lman | Penn I (14 A.

406), 212.

Stephens r. Taprell (2 Curl 458), M9.

Stevens p. Bagwell (15 Ves. 189), 8.
Stevens v. Stevens i L27 End. 560, 86 N.
E Rep. 1078), 16,

Stevens r. Vaneleve | 1 \\ ah. ( '. C.

862), 86, 88, 1 W, 216.

Stewart v. Mulholland (88 Kv. ih, 10
S. W. Rep. L25), 812, 313. "

XX11

TABLE OF CASES.

Stewart o. Powell (Ky.) (14 S. W. Rep.

49G), 312-313.
Stonehouse v, Evelyn (3 P. Wins. 254),

225.
Storm's Will (3 Bradf. (N. Y.) 327),

377.
Stouteuburdi v. Hopkins (43 N. J. Eq.

577, 12 Atl. R. 689), 9, 12, 14, 95,

282.
Strauss v. Schmidt (3 Phil. 397), 403.
Strong, Matter of (39 N. Y. St. Rep.

85°) 270—272
Stubbs v. Houston (33 Ala. 555), 92.
Stuckey v. Stuckey (I Hill Ch. (S. C.)

309), 449.
Stump i\ Hughes (5 Hayw. (Tenn.)

93), 258.
Sturdivant v. Birchett (10 Gratt. (Va.)

67), 269.
Simden v. St. Leonards (1 P. D. 154),

325 375
Sullivan V. Sullivan (106 Mass. 475),

292, 299-303.
Sumner ». Crane (Mass.) (29 N. E.

1151), 420.
Sutherland r. Shelton (12 Heisk. 375),

263.
Swan v. Hammond (138 Mass. 45), 317.
Sweet v. Sweet (1 Redf. 451), 342-344.
Swift v. Wiley (1 B. Mon. (Ky.) 144),

267.
Swinton v. Bailey (L. R. 1 Ex. Div.

110), 324.
Sykes v. Sykes (L. R. 4 Eq. 200), 309.

T. B., Matter of (44 N. Y. St. Rep.

304), 437.
Tagart v. Hooper (1 Curt. 294), 309.
Tallman's Will (Penn.) (23 Atl. R.

986), 95.
Tappenden v. Walsh (1 Phillim. 352),

9.
Tarrant v. Ware (25 N. Y. 425), 239,

287
Tarver v. Tarver (9 Pet. 174), 402.
Tawney v. Long (76 Penn. 106), 51,

137, 141.
Tayloe v. Mosher (29 Md. 443), 450.
Taylor, In the Goods of (9 E. L. & E.

582, 15 Jurist 1090), 232.
Taylor v. Meads (4 De G., J. & S.

597), 9.
Taylor v. Mitchell (87 Penn. St. 518),

414-416.
Taylor v. Tavlor (1 Rich. L. (S. C.)

531), 291, 292, 293.
Taylor v. Taylor (2 Nott & McC. 482),

373.
Teele v. Hathaway (129 Mass. 164),

450.
Temple v. Mead (4 Vt. 535), 383.

Terry v. Wiggins (47 N. Y. 512) 441.
The King v. Nueys (1 W. Bl. 416), 286.
Thomas, In the Goods of (1 Sw. & Tr.

255), 290-291.
Thompson v. Conner (3 Brudf. 366),

404.
Thompson v. Hawks (14 Fed. R. 902),

24.
Thompson v. Seastedt (6 T. & C. 78;

aff'd s'tb nom., Thompson v. Stevens,

62 N. Y. 634), 246, 247.
Thompson v. Thompson (13 Ohio St.

356), 133, 166.
Thompson v. Thompson (21 Barb. 107),

24.
Thompson v. Young (25 Md. 459), 453.
Thorne, In the Goods of (4 Sw. & Tr.

36, 34 L. J. (P. M. & A.) 131), 403,

407.
Thorncroft v. Lashmar (2 Sw. & Tr.

479), 386.
Thornton, In the Goods of (14 P. D.

82), 325, 328-329.
Thurston v. Thurston (6 R. I. 299),

456.
Timewell v. Perkins (2 Atk. 103), 441.
Timon v. Claffy (45 Barb. 438), 325.
Titlow v. Titlow (54 Penn. St. 216), 17,

133, 165.
Todd v. Rennick (13 Colo. 546, 22 P.

898), 17.
Tod v. Winchelsea (2 Carr. & P. 488),

276.
Todd's Will (2 W. & S. 145), 405, 406,

407.
Toms v. Williams (41 Mich. 552), 442,

445.
Tonnele v. Hall (4 N. Y. 140), 232.
Towers v. Hogan (23 L. R. (Ir.) 53),

386.
Towle v. Swasey (106 Mass. 100), 468.
Towne v. Weston (132 Mass. 513), 454.
Townsend v. Bogart (5 Redf. 93), 15,

34-38.
Townsend v. Townsend (7 Gill. (Md.)

10), 21.
Trevelyan v. Trevelyan (1 Phill. 149),

252, 330-334, 367.
Tribe v. Tribe (1 Roberts. 775), 277.
Trimnel, In Goods of (11 Jur. (N. S.)

248), 277.
Trustees v. Calhoun (25 N. Y. 422),

246.
Trustees v. Kellogg (16 N. Y. 83), 442.
Tucker v. Bishop (16 N. Y. 404), 454.
Tuit v. Smith (20 Atl. Rep. 579, 137

Penn. St. 35), 418-420.
Tuller, Re (79 111. 99), 315.
Tullett v. Armstrong (13 Beav. 1), 9.
Turner v. Cheesman (15 N. J. Eq. 243),

92.

TABLE OF CASES.

XX IH

Turner v. Clcrason (15 N. J. Eq. 243),

154.
Turner v. Cook (36 Ind. 129), 242.
Turner v. Scott (51 Pa. St. 126), 395.
Tyler D. Gardiner (35 N. Y. 559), 96,

97, 112, 173-202, 213.

United States v. Grusk (5 Mason 290),

433.
United States r. Robinson (Mason

307), 433.
United States c.Willberger (5 Wheaton

76), 433.
Upchurch c. Upchurch (16 B. Mon.

(Ky.) 102), 269, 272.
Urie v. Irvine (21 Penn. St, 312), 453.
l'-ilton v. L'silton (3 Md. Ch. 36), 447.
Usticke v. Bawden (2 Add. Ecc. 116),

371, 375.

Van Alst r. Hunter (5 Johns. Ch. 148),

14.
Van Alstvne v. Van Alstyne (28 N. Y.

875), 876.
Vance v. Upson (66 Tex. 476, 1 S. W.

179), 18.
Van Cortlandt v. Kip (1 Hill 590, s. c.

7 Bill 346), 376.
Vanderpoel v. Van Valkeuburgh (6

X. V. 190), 209.
Van Deuzen v. Gordon (39 Vt. Ill),

130.
Van Guysling v. Van Kuren (35 N. Y.

70), 18.
Van Nostrand v Moore (52 N. Y. 12),

442.
Varrel] r. Wendell (20 N. H. 435), 453,

455.
N'aii-lian o. Burford (3 Bradf. 78), 215.
Vedder, Matin- of (6 Dem. 92), 76-78,

82
Vermilyea v. Palmer (52 N. Y. 471),

208
Vernam v. Spencer (8 Bradf. 16), 275.
Vernon v. Kirk (80 P.. !18, 219.

Vernon v. Vernon (58 V V, 851), 442.
V rplanck'a Will (91 X V. 489), 154
Vincent i NTi ivhou e (88 X. V. 505),

454.
Voorhi , Matter ot (125 X. V. 76.",, 26

X. I.. 985), 249.
Vrooman v. Powers (Ohio) <2l X. I'..

267, 4 7 Ohio St. 191), 292.

Wainwright'a Appeal (89 Pa. St. 220),
i 19.

Waite 0. Kn bl 15 Minn. 861, 47 X.

W Rep. 1069 216
Walker d. 8keene (8 Read I
w.iii.. , Valki r(67 Ml 529, 7 Bo

Rep. 191 . 276

Wallace r. Harris (32 Mich. 393), 97.
Wallaces. Wallace (23 N. H. 149), 467.
Wallach v. Van Riswick (92 U. S. 202),

11.
Walpole v. Orford (3 Ves. 402), 417.
Walsh v. Ryan (1 Bradf. 433), 53.
Walters v. Crutcher (15 B. Monr. 10),

454.
Walters' Will, In re (The Reporter,

Vol. XXI. 95), 387-389.
Ward's Estate (70 Wis. 251, 35 N. W.

R. 731), 313, 314.
Ward, In the Goods of (4 Hagg. 179),

404.
Ward >-. Tompkins (30 N. J. Eq. 3),

454.
Ward v. Ward (105 N. Y. 68, 11 N. E.

373), 441.
\\ are v. Richardson (3 Md. 508), 455.
Ware o. Ware (8 Greenl. 42), 132.
Warh?g». Waring (6 Moore P. C. 341),

18, 335.
Warner r. Bates (98 Mass. 274), 456.
Warner n. Beach (4Gray 162), 321-324.
Warren v. Baxter (48 Maine 193), 297,

306-308.
Warren v. Warren (2 R. I. 133), 431.
Warwick v. Warwick (86 Va. 596, 10

S. E. 843), 226.
Waterman o. Hawkins et als. (63 Me.

156), 319-321.
Waterman r. Whitney (11 N. Y. 157),

82-91, 117, 128, 140, 152, 328.
Waters v. Cullen (2 Bradf. 354), 51.
Watterson v. Watterson (1 Bead 2),

260, 261, 262, 263.
Webb v. Jones (36 N. J. Eq. 163), 314,

315.
Webster v. Wiera (51 Conn. 569), 441.
Weeks >■. MeBeth (14 Ala. 474), 366.
Weems r. Weems (19 Md. 334), 92.
Weils Will (16 X. V. St. Rep. It, 81.
Weir v. Fitzgerald (2 Bradf. 42), 15.
Welsch /'. Belleville, etc. Bank(94Ill.

191), 441.
Welch . Phillip* il Moore P. C. 2!)'.n.

856, 363, 871, 875.
Welsh d (rater (82 X. .!. Eq. 177).

158.
Wellingtons. Apthorp (145 Mass. 69,

L8 N. E. L0), 418.
Wellington v. Wellington (4 Burr at

. i), 818, 108.
Wells ». Wells (L. R. L8 Eq 504), 162
\\ est v. Weal (8 Rand (\ > 9.

Weston v. Myers (88 III. 182), 219.
We ton, In re (L R. I P. & D. 688),

.
Wc turn, Matter of (60 Hua 298 . 97.
Wetmore v. Parker (52 X. V. 450),

809, Hi.

XXIV

TABLE OF CASES.

Wetter r. Walker (62 Ga. 142), 445.
Whetatine v. Wilson (104 N. C. 385,

10 S. E. 471), 409.
White v. Casten (1 Jones L. (N. Car.)

197), 344-348.
White v. Driver (1 Phill. 84), 16, 17,

60-62.
White o. Repton (3 Curt. 818), 431.
White v. Starr (47 N. J. Eq. 244, 20

A. 875), 14.
White v. Trustees of British Museum

(6 Bing. 310), 239.
White, In the Goods of (2 Notes of

Cases 461), 271.
White, Will of (25 N. J. Eq. 501),

353.
White's Will (121 N. Y. 406, 24 N. E.

935), 18.
Whitely v. King (10 Jur. (N. S.) 1079),

375.
Whitney v. Ferris (10 Johns. 66), 165.
Wigg v. Wigg (1 Ath. 382), 451..
Wilbur r. Wilbur (129 111. 392, 21 N.

E. 1076),
Wilcox v. Wilcox (13 All. 252), 468.
Williams v. Gushing (34 Maine 370),

321.
Williams v. McCall(12 Conn. 328). 455.
Williams v. Tolbert (66 Ga. 127), 395.
Williams v. Tyley (Johns. (Eng.) 530),

353
Williams' Will (15 K Y. Supp. 828),

215
Williamson v. Nabers (14 Ga. 286),

123 163
Willis v. Mott (36 N. Y. 486), 241.

Wilson v. Mitchell (101 Penn. St. 495),

14, 148.
Wilson, In the Goods of (L. R. 1 P. &

D. 269), 274^275.
Wilson v. Wilson (3 Phillim. 543),

371.
Windham v. Chetwynd (1 Burr. 414 ;

s. c. 1 W. Bl. 95), 301.
Wineland, Appeal of (Pa.) (12 Atl.

Rep. 301, 118 Penn. St. 37), 230.
Winn, In the Goods of (2 Sw. & Tr.

147), 398-399, 400, 423.
Winslow v. Kimball (25 Me. Rep. 493),

300, 305-306.
Winter v. Perratt (9 Clark & F. 688),

465.
Wisener v. Maupin (2 Baxt. 342), 260.
Wood v. McGuire (15 Ga. 205), 454.
Wood v. Wood (L. R. 1 P. & D.

309), 371.
Wood, Matter of (36 Cal. 75), 385, 386.
Woodward, In Goods of (L. R. 2 P. &

D. 206), 324.
Wooldridge v. Hancock (Tex.) (6 S.

W. 818), 430.
Wyman r. Symmes (10 Allen 153), 300.
Wynne e. Hawkins (1 Bro. C. C. 179),

456.

Yates v. Cole (1 Jones' Eq. 110).
Youndt v. Youndt (3 Grant 140), 328.
Younger v. Duffle (94 N. Y. 535), 230,
236.

Zeisweiss v. James (63 Penn. St. 463),
428.

THE LAW OF WILLS.

xxv

THE LAW OF WILLS.

INTRODUCTION.

The right to bequeath personal property by will has existed
from the earliest days of our law. For a long time, however,
the wife and children of a testator were entitled to a portion of
his personal property, and it was only to the balance that his tes-
tamentary power applied, subject to certain claims of his lord and
the church. By slow degrees these restrictions were removed, and
at last the testator was left free to bequeath all his personal prop-
erty according to his own will. 1

As to real estate, the owner had, before the Conquest, full power
to devise his land. With the introduction, however, of the feudal
system, this power of course disappeared. It was indirectly re-
vived, after a time, by various devices which enabled the owner
of lands to direct the disposition of them after his death. And by
the statute of 32 lien. VIII., ch. 1, explained by that of 34 Hen.
VIII., ch. 5, and known as the Statute of Wills, power of devising
land by will in writing was to a large extent bestowed anew upon
all peps,, us seised in fee-simple (except married women, infants,

idiots, and persons of oon-sane memory). And as a result of sub-
1 1 lent statutes the removal of the old //i m ral restrictions has been

made complete. ( >wing to the obvious necessity of prescribing a de-
tailed method of executing wills, and affording proper means of
proving their execution, i, was provided by the Statute of Frauds,
k j'.t Car. [I., ch. 3, that all devises of lands and tenements should not
only be in writing, but Bigned by the testator, or some other person
in his presence, and by bis express direction, and be subscribed ip
his presence by three or four credible witnesses."
The Statute of Frauds did not apply to wills of personal prop

'SBlackst. Comm. 491 198. 3 Blackst. ('mum :;;i ::;■•,.

2 INTRODUCTION.

erty, but by the present English Statute of "Wills, 1 Vict., ch. 26,
the rules concerning execution of wills of real and of personal
property were assimilated. This statute provides 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."

In this country the various States have enacted Statutes regulat-
ing the power and the method of making wills. These statutes
vary in their requirements, and in any given case the local con-
trolling law must be consulted.

Nowadays, as a general proposition, and subject to certain safe-
guards and restrictions, every one has the right to make a will. But
in order to understand and apply this principle correctly, it is nec-
essary in the first place to determine precisely what is here meant
by the word " will." It is very important just here to notice that,
as used in the law, it has two distinct meanings. In one sense, it
refers to something in the testator's own mind, his wish, his deter-
mination, his " will " concerning the disposal of his property after
death. In the other sense, it refers to the formal statement in
which he expresses that wish. Thus the testator's own wish, and
the due statement thereof, are both called his " will." Now the
critical importance of the distinction is this : that the formal state-
ment called a " will " derives its only intrinsic value from the fact
that the other will — namely, the determination in the mind of the
testator — was back of it and is embodied in it. Unless this is so,
it is a mere form of words, of no force or value whatever — it is
not the testator's will at all. The manner in which this distinc-
tion and this proposition may be applied to illuminate the dark
corners, and solve the difficult problems of the Law of Wills, will
be further referred to in a moment, and will be constantly illus-
trated throughout this book.

INTRODUCTION. 3

In order to make it as certain as possible that the real wills of
testators shall be enforced, and that instruments that only purport
to be, but really are not such, shall be disapproved, the law has
thrown certain safeguards around the general principle with which
we started. These are sometimes spoken of as if they were ex-
ceptions to the general principle that everybody has the right to
make a will ; but, apart from certain incidental or minor features
which will be mentioned hereafter, and one or two exceptions
which have faded or are now fading away, nothing could be a
greater mistake. Thus, the law generally provides that the testa-
tor must be of "sound mind." This is not an exception to the
general principle that every one may make a will, for that rule
perforce only applies to persons capable of having wills or purposes
of their own to be expressed. As a testamentary instrument, to be
valid, most stand for the real purpose of the testator, it is no ex-
ception to the rule to go on to say that it only applies to him who
is capable of having a real purpose. If he has not a sound mind
he cannot fairly be said to have a will suitable to dispose of his
property, and Juiving no will, he cannot make a will.

So, for the same purpose, the law requires certain formalities
in the execution of wills. These are intended solely for the same
purpose, namely, to insure a careful, accurate, and genuine state-
ment of the testator's wish or will. These and other requirements
and safeguards of a similar nature, and also one or two exceptions
to the general rule, will be considered more fully hereafter.'

Although the statutes conferring the right, and prescribing the
method, of making wills are usually simple and brief, yet a great
body of [aw has grown up, consisting of decisions in eases where
it was claimed that the instrument in question either did not in fact
represent, or was not duly proved to represent, the will of a com-
petenl testator The grounds on which these claims have rested
vary greatly among themselves in their details, but they may he
grouped in a few general classes. The whole Law of Wills may
besl be considered under .-i\ main heads, I. Testamentary Inca-
pacity (or the question whether the particular testator fell shorl of
the general statutory measure of persons competenl t" have and

9ee Infancy, p erture, i> 7; Alienage, t». 10; Crime, p. i<»; Mental

Unsoundness, \>. 12.

4 INTRODUCTION.

to express their own will) ; 2. Undue Influence or Restraint (or
the question whether the testator may have been crowded into ex-
pressing the will of somebody else instead of his own) ; 3. Execu-
tion, Revocation, and Republication (or the question, first, whether
the statutory formalities prescribed in order to insure solemnity,
precision, and certainty in setting forth testator's wishes, have been
observed ; secondly, whether he subsequently reversed his wish
and will, and duly revoked the former expression of it; and
thirdly, whether he has duly republished any former testamentary
instrument) ; 4. The instrument itself, its make-up, its nature,
scope, and various kinds and forms ; 5. Construction (or the
determination, according to certain principles— some natural and
some more or less arbitrary — of the exact wishes and intentions
which testator has in fact expressed) ; 6. Probate (or the proceed-
ings in court to establish the will as indeed the real and duly ex-
pressed and authenticated wish of a competent testator). This
latter subject, however, belongs partly under the head of Practice
and partly under Evidence. The leading rules of evidence apply-
ing peculiarly to the proof of wills are, however, discussed and
illustrated in this book.

CHAPTER I.

TESTAMENTARY INCAPACITY.

I. — Infancy.

II. — Coverture.
III. — Alienage.
IV. — Crime.

V. — Mental unsoundness.

I. INFANCY.

It was formerly the law in England that a will of personal prop-
erty might be made by a male infant at the age of fourteen, and by
a female infant at the age of twelve. 1

The right to make a will of freehold estates in land did not ex-
ist, after the Conquest, even in adults, until conferred by 32 Hen.
VllL, eh. 1, explained by 34 Hen. VIII., ch. 5," which also fixed
the age at which the right should begin, at twenty-one years.'
Subsequently, the statute 1 Vict., eh. 2*i, prescribed the age of
twenty-one, in all cases, whether the property disposed of was real
or personal. Ami bo the law of England now stands. Many of
our States, a- Massachusetts, have adopted the same rule.' Other
States have adopted other rules;' in some, as Connecticut,* an
earlier age is named; while in others, as New York, the English

'1 Blackal ' '< -in mi . 468 ; Arnold v. Earle, 2 Lee's Reports by Phillimore,
529 where in L7S5 a boy of sixteen made a will in favor of bis schoolmaster
which was sustained.

Blackst. Comm. 874, :'.:.). 3 1 Jarm. on Wills, 83.

■ M . Pub -i tit. »ec. 1.

■ Bui whatever age may be Bxed, an Infant under thai age cannol make a
will. Moore v. Moore, .':: Tex. •;:::.

•Conn. <;. s., tec. 587.

6 TESTAMENTARY INCAPACITY.

rule is followed in wills of realty, 1 while in those of personalty *
the age is fixed at eighteen in males and sixteen in females. It is
very important here to notice that this exclusion of infants is not
a mere arbitrary rule. The unfitness of children to deal with mat-
ters of such importance is a fact of nature. The law, in the inter-'
est of convenience and certainty, merely fixes the particular point
at which the disability shall cease and the right shall begin.

ON WHAT DAY AN INFANT COMES OF AGE.
Anonymous.

Mien. 3 Ann. B. R.
(1 Salk. 44.)

" It has been adjudged 3 that if one be born the first of Febru-
uary, at eleven at night, and the last of January in the twenty-first
year of his age, at one of the clock in the morning, he makes his
will, of lands, and dies, it is a good will, for he was then of age.
Per Holt, C. J.

The State v. Clarke.

(1840. 3 Harring. (Del.) 557.)

Kent, October term.

The defendant was presented by the grand jury for illegal
voting at the late inspector's election. The presentment set forth
these facts, to wit : that the defendant was born on the 7th of Oc-
tober, a.d. 1819, and voted at the election held on the 6th of Oc-
tober, 1840.

In his behalf a motion was now made to quash the presentment,
on the ground that it appeared from the face of it that the defend-
ant was of full age at the time he voted, and was, therefore, not
guilty.

Mr. Clayton, for the defendant, cited 1 Black. Com. 497.

1 2 R. 8. 56, sec. 1, as amended L. 1867, ch. 782, sec. 3.

2 2 R. S. 60, sec. 21, as amended L. 1867, ch. 782, sec. 4. But when a will
is made by a minor the courts will examine the circumstances with more than
usual care to see that it really represents the deliberate and intelligent wish of
the testator, and, if this is doubtful, will refuse probate. Seiter v. Straub, 1
Dem. (N. Y.) 64.

3 In Herbert v. Tarball, 1 Keb. 589.

COVERTURE. 7

By the Court.

Bayard, Chief Justice (after stating the constitutional pro-
vision which employs the phrase "of the age of twenty-one
years"). To ascertain when a man is legally of the age of
twenty-one years, we must have reference to the common law,
and those legal decisions which from time immemorial have set-
tied this matter, in reference to all the important affairs of life.
AVhen can a person make a valid will ; when can he execute a deed
for land ; when make any contract or do any act which a man may
do, and an infant, that is, a person under the age of twenty-one
years, cannot do ? On this question the law is well settled ; it ad-
mits of no doubt. A person is " of the age of twenty-one years "
the day before the twenty-first anniversary of his birthday. It is
not necessary that he shall have entered upon his birthday, or he
would be more than twenty-one years old. He is, therefore, of
age the day before the anniversary of his birth ; and as the law
takes no notice of fractions of a day, he is necessarily of age the
whole of the day before his twenty-first birthday ; and upon any
and every moment of that day may do any act which any man
may lawfully do. (1 Chit. Gen. Prac. 766). "It is to be ob-
served, that a person becomes of age on the first instant of the
last .day of the twenty-first year next before the anniversary of his
birth ; thus, if a person were born at any hour of the 1st of Janu-
ary, A.D. L801 (even a few minutes before 12 o'clock of the night
of that day), he would be of full age at the first instant of the 31st
of December, a.d. L82JL, although nearly forty-eight hours before
he had actually attained the full age of twenty-one, according to
yeare, days. hour-, and minutes; because there is not in law in this

respect any fraction of ;i day ; and it is the Bame whether a thing
is don" upon one moment of the day or another."
On the face, then, of this presentment, it appears that Mr.

Clarke was entitled to vote on the 6th of October, being on that

day of the age of twenty one years : and the presentment, Bhowing
no offence, musl !»■ quashed.

II. COVERTURE.
A ;i general proposition, a married woman could not. under the

common law. make a will of either real or personal property. 1 and

' 2 Blackat. Comm fa-. Bran bj v Haim , t Lee' ttep. bj Phillim. 120

8 TESTAMENTARY INCAPACITY.

even when the right to devise freehold estates was created by the
acts of 32 and 34 Hen. VIII., married women were excluded from
their operation. The underlying reason for this disability was not,
as in the case of infancy, merely the actual or supposed incapacity
of the testatrix, but — at least in large part — the theoretical merger
of the married woman's identity and interests in those of the hus-
band. This being the reason, there were four classes of cases where
the reason for the rule did not apply, and where, consequently, the
right to make a will existed.

1 . She might make a valid will of personal property if her hus-
band gave his consent * to the very instrument in question, 2 with
knowledge of its contents, 3 and did not revoke his consent before
it was actually probated ; 4 and survived the wife. 6

2. So if she was executrix under the will of a testator, she might,
in her capacity of executrix, make a will and appoint an executor
for the purpose of continuing the representation of the original
testator. 6

1 2 Blackst. Coram. 498; Fisher v. Kimball, 17 Vt. 323.

As to real property, a married woman could, at the common law, with the
concurrence of her husband, by means of a fine (for a statement of the nature
and effect of a fine— now abolished in England and not used in this country — see
2 Blackst. Comm. 348, et seq.), transfer title to another, as trustee, reserving the
power to appoint by will the disposition that should be made of it by the trus-
tee. In this sense, she could, so to speak, make a will of lands with her hus-
band's consent. Dillon v. Grace, 2 Sch. & Lef. 456 (463-4); Opinion of Jack-
son, J., in Osgood v. Breed, 12 Mass. 525 (531-2); Opinion of Chancellor Kent,
in Bradish v. Gibbs, 3 Johns. Ch. 523 (539, 540, and authorities cited I.

But properly speaking, she could not make a will of land even with the hus-
band's consent. Osgood v. Breed, 12 Mass. 525, where the reasons of this dis-
tinction between real and personal property are clearly explained. Marston v.
Norton, 5 N. El'. 205.

2 Rex v. Bettesworth, 2 Stra. 891; Cutter v. Butler, 25 N. H. 343.

3 Willock v. Noble, L. R. 7 Eng. & Ir. Appeals (H. L.) 580.

4 Brook v. Turner, 2 Mod. 170. But if he once consented to the will, either
expressly or by implication, after the wife's death, he could not revoke.
Id.

5 1 Redf. on Wills, 25. See also Noble v. Phelps, L. R. 2 P. & D. 276 ; on
appeal, L. R. 7 Eng. & Ir. Appeals, 580. If the husband did not survive the
wife, the will made by his consent, during coverture, failed, but she might
then, of course, make a new will, as a feme sole.

6 Scammell v. Wilkinson, 2 East. 552; s. c. sub nom. Stevens v. Bagwell, 15
Ves. 139; Willock v. Noble, L. R. 7 Eng. & Ir. Appeals, 580 (589, 590).

COVERTURE. 9

3. So she might dispose by will of her " separate property," '

and also,

4. She might make a will, or an instrument of like nature, in
execution of a power conferred on her to that effect. 2

The present English Statute of Wills (1 Vict., c. 26, sec. 8), pro-
vides that " no will made by any married woman shall be valid, ex-
cept such a will as might have been made by a married woman
before the passing of this act." The exceptions thus provided for
may all be classified under the four heads already named. 3

In America these general rules of the English law concerning
the riidit of a married woman to make a will are also in force, ex-
cept as qualified by decisions, or changed by statutes. But the
restriction on her right has, in general, been modified, and in some
States in large degree or entirely abolished. Even the States, how-
ever, that have made most substantial progress in this direction
differ widely in details, and in the particular stage to which the
movement lias brought them. For this reason, and also because
new legislation in favor of still greater rights is frequent, it would
be useless here to attempt a detailed statement of the present laws
on this subject in the various States.

[See Stoutenburgh v. Hopkins, 43 N. J. Eq. 577 (12 Atl. Eep.
689); Gregory v. ( >ates (Ky.), 8 S. W. Kep. 231 ; Appeal of Cooke,
132 Penn. St., 533.]

1 Fettiplace v. Gorges, 1 Ves. Jr. 46; Perkins v. Towery (Ky.), 3 S. W. Rep.
604; Willock v. Noble, L. K. 7 Eng. & Ir. Appeals, 580; Tappenden v. Walsh,
1 Phill. 852 : Rich v. (ock, 11, 9 Ves. 860 (879) ; Hadden v. Fladgate, 1 Bw. &
Tr. 48. Bo as to the fee of licr separate real property, Taylor v. Meads, 4 De
Q, J.& s. 597; Hall v. Waterhouse, 5 (Jiff. 64; Tullett v. Armstrong, l Beav.
1. See, however, Osgood v. Breed, 12 Mass. 526 ; Marston v. Norton, 5 N. II.
206 ; \\,-i v. West, 3 Rand. (Va.) 878. Her right might, however, even in
the case of separate property, be restricted or cut off by the terms of the in-
rtrumenl out of which her separate [uteres! in the property In question arose.
This restriction was of ten effected by a clause "against anticipation." Bisp>
ham's Ivjuity, ;' 1<U; I.ewin on Trusts, 128. For a long and elaborate discussion
of the BUbjeCt Of a married woman's separate property and lier power ol dis

position, citing a jrreal Dumber of English and American authorities, see note

to Ilnlme v Tenant, 1 Leading 'as. Eq. (Hare A Wallace's Itli Am. Ed., p.

lie, ti, v. Withington, 8Cush. 197; 2 Kent Comm. 170, 171 ; 4 Kenl Comm.
606; Bugdenon Powers, Chap. V.; Perkins v. Towery (Ky.), 8 S. W. Rep 604
Wilio.-k v. Noble, L R 7 En • & tr. Appeals, ">80.

10 TESTAMENTARY INCAPACITY.

III. ALIENAGE.

At common law an alien might hold land as against all except
the crown, and even as against the crown until office found. 1 He
had, therefore, only a defeasible title, but such as it was, he might
devise it, in which case it still remained subject, in the hands of the
devisee, to the same rights of the crown to seize it after office
found. 2 This incapacity to hold absolutely, and consequently to
give an indefeasible title by devise, arose from feudal and political
reasons not applicable to personal property, which might, therefore,
be bequeathed by an alien. 3

Following earlier legislation, however, on this subject in England,
the Act of 33 Vict., c. 14, sec. 2 (1870), provides that "real and
personal property of every description may be taken, held, acquired,
and disposed of by an alien in the same manner as by a natural-
born British subject ; and a title to real and personal property of
every description may be derived through, from, and in succession
to an alien in the same manner in all respects as through, from, or
in succession to a natural-born British subject."

The laws of our States have, in some cases, abolished, and in
others have modified the old English rules. The present laws of
the various States vary very widely from one another, and the local
statutes and decisions must in every case be consulted.

IV. CRIME.

The former law of testamentary incapacity arising through crim-
inal conduct is stated by Blackstone as follows :

" Persons incapable of making [wills and] testaments, on account
of their criminal conduct, are, in the first place, all traitors and
felons, from the time of conviction ; for then their goods and chat-
tels are no longer at their own disposal, but forfeited to the king

1 As to the distinction between an alien enemy and an alien friend, see 1
Redf. on Wills, 13 ; Fairfax's Devisee v. Hunter's Lessee, 7 Crancb, 603.
Compare, as to bequests of personalty, on this point, infra, note 3.

2 1 Jarman on Wills, 41.

3 Du Hourmelin v. Sheldon, 1 Beav. 79; Craig v. Leslie, 3 Wbeat. 563; An
stice v. Brown, 6 Pai. 448. But only by an alien friend; not by an alien enemy,
1 Redf. on Wills, 9; 1 Williams on Exrs. 12. Compare, as to devises of realty,
on this point, supra, note 1.

CRIME. 11

[and their land escheats as a result of attainder 1 ]. Neither can a
felo de se make a will of goods and chattels, for they are forfeited
by the act and manner of his death ; but he may make a devise of
his lands, for they are not subjected to any forfeiture. Outlaws
also, though it be but for debt, are incapable of making a will, so
long as the outlawry subsists, for their goods and chattels are for-
feited during that time. As for persons guilty of other crimes,
short of felony, who are by the civil law precluded from making
testaments (as usurers, libelers, and others of a worse stamp), by the
common law their testaments may be good." 3

Apart from the bearing of intermediate legislation in England,
the statute 33 and ?A Vict. (1870), c. 23, establishes the law of that
country on a new basis. For, subject to provisions concerning
custody and employment of a felon's or traitor's property during
his life, it abolishes attainder, corruption of blood, forfeiture, and
escheat, for treason, felony, and felo de se. And inasmuch as these
penalties constituted at the common law the only ground for testa-
mentary incapacity arising from criminal conduct, that incapacity
has now disappeared, together with the ground for its existence. 3
That such is the necessary result of such statutory changes has
been expressly held in Kentucky, where, under laws abolishing
attainder and forfeiture, probate was granted to a will of real and
p«-r.»onaI property executed by a murderer after his conviction and
sentence to death/

In this country the United States Constitution (art. III., sec. 3)
pmvide.. tint "no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person at-
tainted." 1 And it is further provided by the IT. S. Revised

' 1 Jarman on Wills, 42; Bac. Abr. " Wills" B.

"2 Blackst. Comm. 199.

' l .Farm, on Will. 18 (4th English Ed.; Randolph &Tallcott's Am. Ed.).
The statute is, however, by Ms terms made inapplicable to the then existing law
of forfeiture consequent upon outlaurry. [d. By the A.cl of 58 Geo. [II., c.
127, providing thai excommunication shall entail no civil Incapacity whatever,

any prcviou qu< rtion < c< rning the te itamentary rights of excommunicated

pei removed.

• Rankin v. Rankin, 8T. B. Monr. 581, which see for a clear and valuable
exposition.

Concerning the meaning and Bcope of this con litutional provision, and of
the conn" i ition act passed during the Civil War, ee Wallach v. Van Riswick,

12 TESTAMENTARY INCAPACITY.

Statutes, sec. 5326, that " no conviction or judgment shall work
corruption of blood or any forfeiture of estate."

The local provisions of a similar character vary somewhat in
phraseology and in scope, and are to be found in the constitutions
of some of the States ' and in the statutes of others."

V. MENTAL UNSOUNDNESS.

The statutes of wills usually require that the testator must be
of "sound mind.'' This term calls for two things. In the first
place, the mind must possess a certain degree of intelligence.
What degree that is, we will consider in a moment. But in the
second place, besides having the requisite degree of intelligence,
it must be free from insane delusions which might affect the pro-
visions of the will.

First, then, concerning the degree of intelligence required by
law to enable a testator to make a valid will. On this point there
has been much discussion, and it has been found impracticable to
lay down any hard and fast definition that will answer for all cases.
There is a general agreement, 3 however, that the testator must be
able to summon before his mind, 4 on the same occasion, and hold
there for a reasonable period, (a) the persons who might naturally
be the objects of his bounty and his relations to them ; and (b)
the property he has to dispose of, and that (c) he must understand

92 IT. S. 202 ; 111. Cent. R.R. Co. v. Bos worth, 133 U. S. 92, and cases there
cited. Concerning treason against a State as distinguished from the national
government, see N. Y. Penal Code, sec. 37; N. Y. Code Civ. Proc. 1977, 1982;
People v. Lynch, 11 Johns. 549.

1 For instance, Constitution of Penn., art. i., sees. 18 and 19.

2 For instance, N. Y. Penal Code, sec. 710; N. Y. Code Crim. Proc, sec.
819.

3 Lee's Case, 46 N. J. Eq. 193; Converse v. Converse, post, p. 25;
Reichenbach v. Ruddach, 127 Penn. St. 564; Stoutenburgh v. Hopkins, 43
N. J. Eq. 577; Kramer v. Weinert, 81 Ala. 414; Prather v. McClelland,
76 Tex. 574 (13 S. W. Rep. 543); Bannister v. Jackson, 45 N. J. Eq. 702 (17
Atl. Rep. 692); Kerr v. Lunsford, 31 W. Va. 659 (8 S. E. Rep. 493); Clifton v.
Clifton (N. J.), 21 Atl. Rep. 333; In re Blair's Will, 16 Daly, 540 (16 N. Y.
Supp. 874); Spratt v. Spratt, 76 Mich. 384; Durham v. Smith, 120 Ind. 463;
Chrisman v. Chrisman, 16 Ore. 127 (136); Brown v. Ward, 58 Md. 382 (396).

4 He must be able to do so. It is not necessary to show that he did in fact
do so. Brown v. Mitchell. 75 Tex. 9.

MENTAL UNSOUNDNESS. 13

the scope and bearing of the provisions of the will. 1 If the testa-
tor can do this, he has mind enough, and this brings us to the sec-
ond point above mentioned, namely, that that mind may never-
theless still be rendered unsound by the presence of insane delu-
sions. If the mind is also free from insane delusions which might
affect the provisions of the will, then it is a sound mind.

Such then, in brief, is the meaning of the statutory requirement
that the testator must be of sound mind. 2 But in applying
the requirement to the ever-varying and complex facts of actual
cases, we encounter many serious perplexities. Contests over the
question of testamentary capacity seldom arise unless there is some
ground for imputing some degree of weakness or peculiarity. And
the particular forms of mental and physical debility or eccentricity
or derangement are so numerous as to give rise, in such contests,
to an almost numberless multitude of single instances, each of
which must be passed on by the court on its own merits. There
are, it" is true, marked cases of insanity or idiocy which are readily
recognized and proved. But yet, between these and normally con-
stituted and healthy minds, the gradations shade off by impercep-
tible degrees. And as each case arises, the question must always
recur whether, on the given evidence and all the circumstances,
the given instrument does actually represent the real will of a com-
petent testator, and no automatic rule can be laid down which will

1 In regard to the third requirement, tliere is one question to which attention
should here be called. In New York, in the famous case of Delafleld v. Par-
ish, 36 X. V. 10 (97), a majority of the court agreed that the question in each
case Lb whether the testator bad sufficient capacity to make a will, and not
whether be had capacity to make the particular will produced. "If compos
mentis, be can make any will, however complicated: if non compos mentis, be
can make no will — not the simplest." An opposite vi« \v is, that the scope

ami bearing of the particular will should be taken into consideration in decid-
ing whether the given testator was mentally corapetenl to make thai will. And
this latter is the generally accepted, and is certainly the mosl reasonable, doc-
trine. Harrison v. Rowan, :t Wash. C. C. 685; Bt. Leger's Appeal, 84 Conn,
184; Tn re Bilverthorn, 88 Wis. 872 (82 V W. Rep. 287). "We bave also
given sanction to the doctrine thai a man may no! be competent to make a will

of one kind, owing to the nature and extent of the estate, when be may be

competent to make one less complicated." Campbell v. Campbell, 180111.
168(480). And io also now, apparently, tn New fork; Van Guysling v. Van
Kuren. BO N. V. 70(74); Horn v. Pullman, 72 N. V 369 378).

Sometime the tatute calls for sound mind and memory, or sound mind,
memory, and understanding, The meaning is the ame.

14 TESTAMENTARY INCAPACITY.

not call for constant modification, qualification, and adaptation to
the new facts of each new case.

But nevertheless the actual cases do range themselves in certain
broad classes, to each of which has gradually been assigned its own
distinct set of general rules, logically adapted to the leading char-
acteristics of each class. These several classes or kinds of mental
incompetency to make a will, and the boundaries and rules of each,
we are now to examine. To be useful, the division must be made
on a practical basis, according to broad, general lines, and it is be-
lieved that the following arrangement will be found most con-
venient.

In the first place, then, in judging of testamentary capacity, both
the body and the mind should be considered, — the mind, because
its " soundness " is the very point in question ; the body, only be-
cause of the light its condition often throws upon the state of the
mind. The mere fact that the testator is physically weak, dis-
ordered, maimed, or deformed is, in itself, of no importance, except
as it may go to show, in the particular instance, a resulting or
accompanying absence, weakness, or derangement of mind. Thus,
a man may make a valid will though blind, 1 or deaf, 2 or dumb, 2 or
exceedingly weak and feeble in body ; 3 so though he is extremely
old. 4 For though one may be too young to make a will, he cannot
be too old, if only he retains a " sound mind." In cases where the
body is feeble, deranged, or deficient in any of its parts or func-
tions, as for instance where testator is blind, deaf, or dumb, this fact
may call for greater care in making sure that the mind was never-
theless sufficiently clear and strong, and that the testator's own will

1 Ray v. Hill, 3 Strobh. (S. Car.) 297 ; In Goods of Piercy, 1 Roberts. 278 ;
In re Mullen, 5 Irish Eq. 309; Wilson v. Mitchell, 101 Penn. St. 495 (503).

2 In re Geale, 3 Sw. & Tr. 430. See Goods of Owston, 2 Sw. & Tr.
461.

3 Hathorn v. King, 8 Mass. 371 ; Horn v. Pullman, 72 N. Y. 269 ; Stouten-
burgh v. Hopkins, 43 N. J. Eq. 577; Hoskins v. Hoskins (Ky.), (7 S. W. Rep.
546); Kerr v. Lunsford, 31 W. Va. 659 (8 S. E. Rep. 493); Chrisman v. Chris-
man, 16 Ore. 127; Patterson's Will, 13 N. Y. Supp. 463.

4 Collins v. Townley, 21 N. J. Eq. 353; Wilson v. Mitchell, 101 Penn. St.
495; Van Alst v. Hunter, 5 Johns. Ch. 148 (158); Horn v. Pullman, 72 N. Y.
269; Snelling's Will, 17 N. Y. Supp. 683; Clearwater's Will. 2 N. Y. Supp. 99;
Napfle's Estate, 134 Penn. St. 492; Appeal of Richmond, 59 Conn. 226; White
v. Starr, 47 N. J. Eq. 244.

MENTAL UNSOUNDNESS. 15

is really expressed in the instrument. 1 But this is a question of
evidence. So much in general for the body. The cases of mental
incompetency of testators may, for purposes of practical conveni-
ence, be best divided into classes, as follows :

IDIOCY.

First, a broad field is covered by the term idiocy. 2 This condition
results from arrested mental development, and is generally said to
be determined by a child's condition at birth. But development is
sometimes arrested after birth, in very young children, and the re-
sult, at least from our present point of view, is the same. So, also,
it is not unknown that accident or violent grief may sometimes so
affect the mind as to cause not derangement but decay, and bring it
finally to a condition very similar to idiocy. There are degrees of
idiocy,' but no person properly classified as an idiot can make a
valid will. 3 But mere weakness of mind, whether natural or pro-
duced by prostration or decay, will not incapacitate a testator, 4 so
long as his mind satisfies the test already set forth. For as Swin-
burne says : " "If a man be of a mean understanding (neither of the
wise sort nor the foolish), but indifferent, as it were, betwixt a w 1m ■
man and a fool, yea, though he rather incline to the foolish sort,
so that for his dull capacity he might worthily be termed grossum
caput, a dull pate, or a dunce, such an one is not prohibited from
making his testament."

INSANITY — LUNACY.

In another important class of cases minds once rational have be-
eome deranged, either from accident, or sickness, or grief, or the
development of some hidden tendency, or otherwise, and are sub-
ject to "delusions," i.e., they believe things to exist which have
no real existence, and are incapable of being permanently reasoned

Ontof BUCh erroneous belief. ( 'oncerning the delusions which ailed
the mind.- of the in -a ne, il is Said in the opinion in Dew v. ( 'lark : '

1 In !■■ Geale, :: Bw. A Tr. 480; Longchampa v. Fish, 2 B. A- 1'. (New Rep.)
4ir, ; w.ir v. Fitzgerald, 2 Bradf. (N. Y.) 42

\ ii [diol Is a person who has been without understanding from iiis nativity;
a niitur.il fool; a natural. Bouvier's Law Did.: Worcester's Dictionary.
Townsend v. Bogart, ■ > Redf. 109. ' Hathorn v. King, 8 Mass. 87L

i'i. a, s. •!, pi. :;. ' :'. Addami , :>i DO.

1C TESTAMENTARY INCAPACITY.

" The true criterion — the true test of the absence or presence of
insanity, I take to be, the absence or presence of what, used in a
certain sense of it, is eomprisable in a single term, namely —
delusion. Wherever the patient once conceives something extrava-
gant to exist, which has still no existence whatever but in his own
heated imagination ; and wherever, at the same time, having once
so conceived, he is incapable of being, or at least of being perma-
nently, reasoned out of that conception, such a person is said to be
under a delusion, in a peculiar, half-technical, sense of the term ;
and the absence or presence of delusion, so understood, forms, in my
judgment, the true and only test or criterion of absent or present
insanity." 1

Sometimes in the case of persons afflicted with insanity, this
presence of delusions is their permanent and settled condition,
while sometimes, on the other hand, they are subject to what are
known as "lucid intervals," i.e., intermittent periods when the
mind breaks away from its delusions, and for the time being acts in
a rational and normal manner. The word lunatic is derived from
this fact, on account of some supposed connection between these
intervals and the periodic lunar changes. But the term lunacy is
very commonly applied to all forms of insanity without reference
to the special nature of the malady. Now, in all these cases the
one vital question is, whether the will in hand was made during a
lucid interval. An insane person belonging to the classes thus far
described cannot make a will at all, except during a lucid interval.
His insanity and its attendant incapacity, once proved, are presumed
to continue. 2 But the existence of a lucid interval at the time of

1 Approved and followed in Am. Seamen's Friend Soc'y v. Hopper, 33 N. Y.
619 C624i; Boughton v. Knight, L. R. 3 P. & D. 64 ; Potter v. Jones, 20 Ore.
239 ; see Barbo v. Rider, 67 Wis. 600. If there is any apparent, even though
entirely insufficient, cause for a delusion, then testator's belief may only show
poor judgment and defective reasoning power, and not insanity. In re Coles'
Will, 49 Wis. 181; Potter v. Jones, 20 Ore. 239; Middleditch v. Williams, 45
N. J. Eq. 726 ; Clapp v. Fullerton, 34 N. Y. 190 (197).

2 White v. Driver, 1 Phill. 84; Cartwright v. Cartwright, 1 Phill. 90; Reich-
enbach v. Rudd.ich, 127 Penn. St. 564 ; Stevens v. Stevens, 127 Ind. 560.
No such presumption exists where the insanity arises from a merely temporary
cause, as fever. It is proper to here call attention to a divergence of
views on an allied question, — namely, the nature and weight of the burden
imposed on every proponent concerning proof of testator's mental sound-
ness. The apparent, and to some extent real, conflict among the authori-

MENTAL UNSOUNDNESS. 17

making the will may be shown by affirmative proof,' and there-
upon the presumption of continuing incapacity at that time is re-
butted, and the objection on that ground is removed. Therefore
it is presumptive but not conclusive evidence of incapacity that the
testator was unquestionably a lunatic, and that he was, at the time
of making the will, confined in an asvlum. For if he made it dur-
ing a lucid interval, and his mental condition for the time being
also satisfied the test already stated (p. 12, ante), it is sufficient. 3

ties on this point appears to arise from the fact that there are two separate rules
to be considered : first, that the law presumes every one to be of sound mind
until the contrary is shown; and second, that the burden of proving the will is
on the proponent. In some States it is held that the proponent need only prove,
in the first instance, the due formal execution of the will, and that then it is
open to the contestant to show incapacity, and to the proponent to offer affirm-
ative proof of mental soundness in rebuttal. Higgins v. Carlton, 28 Md. 115
(141). In others, the proponent is expected to offer some outside affirmative
proof of testator's mental soundness to start with. Knox's Appeal, 26 Conn. 25.
In the former class of cases the true ground of decision appears to be not
that the prima facie presumption of mental soundness dispenses with all prelim-
inary proof of the fact, and relieves the proponent of his admitted burden ; but
that the mere showing of due formal execution of an apparently rational will
constitutes such preliminary proof, and contributes to the material necessary
to set the presumption going. While in the second class of cases the existence
of the presumption is not denied, but it is held that it is not set in motion
without some further (though slight) preliminary proof that the circumstances
at the time of execution were such as to indicate that the case in question was
of the usual character falling within the scope of the presumption. The true
general rule would appear to be that, taking the proceeding for probate as a
whole, the proponent must throughout sec to it that the preponderance of evi-
dence of some son is in favor of the usual presumption and such as will justify
the court in assuming the requisite soundness of mind, and that it is only the
question of just whit -hall be sufficient for that purpose thai is generally in de-
pute. Todd v. Rennick, 18 Colo. 546. For the general rules see Brown V.
Ward. 58 Md. 895; Elkinton v. Brick, 44 N. J. Eq. L58; McCoon v. Allen,
4r> X. .1. Eq. 708; Kerr v. Lunsford, :si W. Va. 659. In re Silvcrthorn, 68
Wit ■■■ McCulloch v. Campbell, 49 Ark. 86,7 j Allen v. Griffin (Wis.), 69
Wis. 529 ; Kennedy v. Cpshaw, 66 Tex. 449 ; In re Layman's \\ ill. 40 Minn.

1 White v. Driver, 1 I'hill. 84 : Dew v. Clark, '.\ Addams, 70 ; BoUghtOD v.

Knight, L. R. :; I'. & D. 64 (76). Even a formal finding of Insanity after in
quest may !»• rebutted by proof of a lucid interval al the time in question.
Titlow v. Titlow, :.i Penn. St. 316.

« Nichols v Binns, l Bw. & Tr. 289. The fact that after making hi- will
t'- tator committed suicide, is admissible as evidence on the question of his
sanity, but is by no means conclusive. Burkhaii v. Gladish, 138 Ind. 887;
Card\ Will, 8 V V. Bupp. 2!t7; Chambers v Queen' Proctor, ' I urt. 115.

18 TESTAMENTARY INCAPACITY.

INSANITY — MONOMANIA.

There is a still farther large class of insane persons, known as
monomaniacs, who, as the term indicates, are deranged in some
one direction, though sane in others. They are subject to " delu-
sions " like the other class of insane persons just considered, but
these delusions are confined within a restricted field. Concerning
the capacity of monomaniacs to make their wills, there has been
in the past much discussion and divergence of opinion. The diffi-
culty appears to have arisen chiefly out of the phrase " partial
insanity," which was once commonly employed to designate the
condition of persons known as monomaniacs. On one side it was
contended that the mind was a unit, and that it could not fairly
be said that one part of it could be unsound and another part
sound.' On the other side attention was called to the undoubted
fact that, in spite of all theories, many persons obviously insane
on certain subjects were perfectly and uninterruptedly sane on all
other matters. 2

This question may now be regarded as at rest, 3 and it is settled
that the mere existence of a monomania does not necessarily inval-
idate the will. And here arises an important distinction peculiar
to these and similar cases. For if the insane delusion is of such a
character that it may have occasioned the provisions of the will, it
is fatal to the validity of the instrument, 4 while if it relates to
some subject wholly disconnected from those provisions, and did
not occasion them, and is a monomania, not involving a diseased
condition of the mind on other subjects, it does not invalidate the
will. 5

1 Waring v. Waring, 6 Moore P. C. 341 ; Smith v. Tebbitt, L. R. 1 P. &
D. 398.

2 See Dunham's Appeal, 27 Conn. 192.

3 Banks v. Goodfellow, L. R. 5 Q. B. 349 ; Boughton v. Knight, L. R. 3 P.
& D. 64.

4 Dew v. Clark, 3 Add. 79 ; Vance v. Upson, G6 Tex. 476 ; Smee v. Smee,
5 P. D. 84 ; Boughton v. Knight, L. R. 3 P. & D. 64.

5 Banks v. Goodfellow, L. R. 5 Q. B. 549 ; Murfett v. Smith, 12 P.D. 116 ;
Society v. Price, 115 111. 023 ; White's Will, 121 N. Y. 406 ; Middleditch v.
Williams, 45 N. J. Eq. 726 ; Durham v. Smith, 120 Ind. 463.

MENTAL UNSOUNDNESS. 19

IU/ustrations.

(a). The mind of John Banks, the testator, had long been dis-
turbed by two delusions, the one that he was pursued by spirits,
the other that a certain Featherstone Alexander, a man long since
dead, came personally to molest him. Neither of these delusions —
the dead man not having been in any way connected with
him— had, or could have had. any influence upon him in making
the will in question. Held, that the existence of a delusion, com-
patible with the retention of tb • g meral powers and faculties of the
mind, will not be sufficient to overthrow the will, unless it is
such a> was calculated to influence the testator in making it. 1

■ b . The testator became subject to a delusion that he was a son of
King Ge >rge IV., and addressed to Queen Victoria a memorial on
that subject which gives conclusive evidence of insanity. By
hi- will he left his property to his wife for life, and after her
d ii. : i to found a free public library for the use of the people of

ighton, a place in which George IV. had taken a deep interest,
lb- also labored under a delusion that he had been defrauded by
his brother, and he made no provision for him by his will. The
will was held invalid."

The testatrix believed herself a member of the Trinity — that
was the Holy Gho3t, and a Mr. Simnis Smith was the Father.
• believed that epidemic diseases came through her agency.
"God said, 'Turn on the screw,' and the cholera came; 'Turn it
lin,' and it ceased." The court say that there were clear traces
ion to the will of a beneficiary -Mr. Simms Smith— ap-
parently founded on the special subjeel of her hallucinations for
which tin- external and visible relations of the parties could hardly
account. The will was held invalid.'

DEMENTIA.

Still another ela— includes Cases of mere weakening or decay of

the mind. The term applied here is <h m< ///A/,— the mind fading

Banks v. Goodfellow, I. R. •", o B 549.
Bmee \ 3mee, G p. |>. 84.

Smith t Tebbitt, l>. If. 1 P A- D. 898; the opinion in this case, however,
be old and oow obsolete rule thai the existence of any Insane delusion
renders tin- whole mind unsound.

20 TESTAMENTARY INCAPACITY.

or dying away. Very commonly, though not always, this con-
dition is due to old age, and is then known as senile dementia.
And here it is difficult, in many actual instances, to determine
whether or not a given testator has yet reached or already passed
the point where he had sufficient mental power to satisfy the test
already given (p. 12, ante). As stated above, this dementia may
progress so far as to bring the testator practically to a condition of
idiocy.

DELIRIUM — DRUNKENNESS.

In addition to idiocy, and lunacy with or without lucid intervals,
and monomania, and dementia, we find still other classes. One of
these is "delirium" due to fever or other disease, sometimes tem-
porary and sometimes continuing and developing into permanent
insanity. 1 Lucid intervals are here to be found, and during their
continuance, but not otherwise, the patient may be able to make a
valid will. 2

Analogous to these cases are those of persons either usually, or
at the time of executing the instrument, under the influence of
liquor, or otherwise deprived to a greater or less degree, by artificial
means, of full consciousness and understanding of their own acts.
It is well known that excessive and long continued use of certain
liquors or drugs may ultimately produce a chronic disease affecting
the mind and the will. 3 Obviously such a disease may render a
testator mentally incompetent. For it is the fact of mental debility
or derangement, and not the cause of it, that is the vital point in
determining testamentary capacity. But apart from such a result-
ing condition of mental disease, the distinction to be observed in
this class of cases is whether the testator, at the time of making the
will, was or was not deprived of the faculties requisite to qualify
him for the testamentary act. He might be shown to be a hard
and confirmed drinker, frequently or even constantly intoxicated,
and yet if, at the particular time in question, he was sufficiently
free from the influence of liquor to know clearly what he was about,
and to otherwise satisfy the usual test, then proof of his habits would

1 Keithley v. Stafford, 126 111. 507.

2 As to the presumption of continued incapacity from this cause, see 1
Jarm. on Wills (Randolph & T.'s Ed.), 97, note C.

3 Reichenbach v. Ruddach, 127 Penn. St. 564.

MENTAL UNSOUNDNESS. 21

not invalidate the will. 1 While if it were shown that even although
usually temperate, he was, at that time, so far under the influence
of liquor as not to satisfy the usual test of capacity, then the will
could not stand. And here we may notice a distinction between
cases of settled insanity and those of derangement or stupefaction
accompanying or occasioned by drunkenness, fever, or other merely
temporary cause. For when the existence of insanity has once been
proved, we have already seen that a presumption of its continuance
is naturally raised, and the burden of proving that the will was
made during a lucid interval rests on the party setting it up. 2 But
if the insanity shown arose merely in connection with fever or
other transient cause, the ground for assuming continued insanity
fails, and it must be affirmatively proved to have existed at the time
in question.* Under this latter head fall cases of temporary insanity
induced by excessive drinking. For no presumption of perpetual
intoxication and consequent permanent deprivation of reason arises
from proof of frequent, or habitual, or excessive use of liquors. No
one is intoxicated all the time. And he who alleges incompetency
from such a cause must prove not only that testator was usually in-
toxicated, but that he was so in fact at the very time the will was
made. 4 In the case of permanent insanity produced by drink, how-
ever, the other and usual rule applies.

Illustration.

Robert L. Peck, the testator, was of intemperate habits. For
five days before July 23d, when he made his will, he had been
"on ,i Bpree," and continued to drink on that day, and he also used
coarse and profane language, but was not shown to have been, at the
time, irrational. The will itself was sensible. The will was sus-
tained. Peck v. Cary, 27 N. V. 9.

■ Peck v. Cary, T, X. V. 9 (20); In re Levis's Estate, 140 Penn. St. 179;
'■" < a i . 16 X. J Eq. 198; Elkinton v. Brick, 44 N. J. Eq. 164 ; Appeal of
Harmony Lodge, 127 Penn. St. 269; Fiost v. Wheeler, 48 N. J. Eq. 678; In re
Peck's Will, IT X. V Supp. 248.

* See ante, p. 16.

: ' Bii v. Whittemore, A Met. 646; Townsend v. Townsend, 7 (Jill (Md.) 10;
Staples v. Wellington, 68 Me 168; Blakev. Rourke, 74 I.i r, n» ; Brown v. Ward,
68 Md. 896.

; Ayrey v Hill, 2 Add. 300 (210); Andreas v. Welter, 2 Green Ch. (N. J.) at
608; Lce'8 Case, 40 N. J. Eq. 198.

22 TESTAMENTARY INCAPACITY.

"We have thus stated the general groups in which the courts have
for practical convenience classed the cases of persons mentally
incompetent to make wills, and have called attention to the rules
applicable to each. It remains here to state certain broad princi-
ples laid down by the courts and applicable generally to all cases
where unsoundness of mind is set up.

1. The court may consider the instrument itself, and its pro-
visions, to see whether they throw any light themselves on the
mental condition of the testator. 1 It is obvious that a mere read-
ing of the will might be proof sufficient of an insane mind ; and
so it might contain certain provisions so far " sounding to folly "
as to suggest grave doubts. 2 And on the other hand, it might be
so prudent, sensible, and logical as to bespeak a calm and rational
mind in its author, and to constitute one point in its own favor. 3
As the saying is, " a rational act, rationally done," is evidence of a
rational mind behind the act. 4

But it still must be remembered that the fact that the instru-
ment is rational in its provisions is very far from be'ing conclusive
of the competency of the testator. It is one important point for
consideration. 5 And on the other hand, the fact that the pro-
visions of the will are queer, unusual, or extraordinary does not
necessarily show insanity.

Illustrations.

(a). For a rational testamentary act rationally done by a lunatic,
see Cartwright v. Cartwright, post.

(b). The Reverend Robert Hoadly-Ashe, rector of Misterton, and
of Crewkerne, who had preached and performed the other duties of
his office for many years, on December 14, 1824, made this will :

u I promise & Swear that I will give all my Plate — "Watch and
Seals — Rings and all that I have in the world — at my decease —

1 Cartwright v. Cartwright, 1 Phill. 90, as explained in Chambers v. Queen's
Proctor, 2 Curt. 447.

2 Arbery v. Ashe, 1 Hagg. 214.

3 Boughton v. Knight, L. R. 3 P. &, D. 64, and cases cited in next note.

4 Cartwright v. Cartwright, 1 Phill. 90 (explained in Chambers v. Queen's
Proctor, 2 Curt. 447); Nichols v. Binns, 1 Sw. & Tr. 239; Peck v. Gary, 27
N.Y. 9; Gombault v. Public Adm'r, 4 Bradf. 226 (234); Boughton v. Knight,
L. R. 3 P. & D. 64.

6 Bannatyne v. Bannatyne, 2 Roberts. 472.

MENTAL UNSOUNDNESS. 23

I promise & Swear that I will give Elizabeth Arbery — at mv De-
cease — ail that I have in this world or ever shall have in wtaver
in money or lands — " Kobt. Hoadlt — Ashe, D.D."

Witness I Elizabeth Cleal,
our hands, f Martha Rendell.

Dec. 14, 1824.

Sir John Nichol, in the judgment, says : "A paper, couched in
these strange terms, and written in this strange manner, coming
from a person of education, raises a great doubt whether it could

have been thf offspring of his mind when sound The

whole tenor and shape of the paper very strongly ' sounds to
folly.' And he recommends an arrangement out of court. 1

(<?). A had been clearly disordered in his mind for a length of
time. lie goes to Little Hampton to bathe in the sea, and there
he sees a young woman at the house where he boarded, of whom
he had no prior knowledge, and wants to marry her, at a time
when he is insane. He is brought up to town in a strait waist-
coat, and there afterwards writes a paper byway of codicil giving
her a legacy. This was a delusion. The codicil was on its face
as rationally done as in Cartwright v. Cartwright, 2 but the act
itself was not a rational act. 3

(d). Testator directed that part of his bowels should be made into
fiddle string-, and others sublimed into smelling salts, and the rest
of his body vitrified into lenses, explaining that he had an aversion
to funeral pomp, and wished his body to be made useful to mankind.
The will was sustained.'

(<■). An Englishman who had lived many wars in India, ami had
a i different times expressed himself a believer in the Hindoo and in

tin' Mohammedan faiths, and who had to a great degree adopted the

habits of lif" of the latter, provided by J i i ^ will for the erection of
a cenotaph at Constantinople, with a light burning, and a descrip-
tion of the testator engraved thei'ron. This will was sustained,
apparently a- being rational in view of the history and opinions of
the test itor.

' Arbery v. .\-ii<\ t Bagg. (Eccl 1 214. • Given post.

'Clark v. Lear, stated in opinion In Cartwright v. Cartwright, 1 Phill. ( J0
1119).
4 Morgan v. Boys, Taylor, Med. Jurispr., 2<I (Amer.)ed 555.
* Austen v. Graham, 8 Moore, I'. C. 498.

24 TESTAMENTARY INCAPACITY.

2. Testators may, if mentally competent, dispose of their prop-
erty as they see tit. They may be capricious, harsh, and even
cruel in their scheme of disposition, and this mere fact will not
invalidate the will. 1 No testator is bound to act kindly or even
justly or equitably in making his will. 2 But though this is true,
yet evidence of cruelty or harshness may obviously be carried so
far as to suggest or even to prove insanity as their necessary
source. 3

3. The fact that testator himself was odd or eccentric, or enter-
tained queer, unusual, or even extraordinary views or beliefs, does not
necessarily involve testamentary incapacity. 4 The essential ques-
tion is, first, whether his views were the result of insane delusion,
as already defined, and, if so, whether they were or might have
been influential factors in determining the provisions of the will
according to principles already discussed.

Illustrations.
Insanity is not necessarily involved in testator's belief, for ex-
ample, in

(a). Witches, 6

(b). Ghosts, 6

(c). " Spiritualism," 7

(d). Metempsychosis. 8

1 Horn v. Pullman, 72 N. Y. 269; Brown v. Ward, 53 Md. 376 (392), as
to which see note to Merrill v. Rolston, given post; see Boughton v.
Knight, L. R. 3 P. & D. 64; Dew v. Clark, 3 Add. 90; Snider v. Burks (Ala.),

4 So. Rep. 225; Potter v. Jones, 20 Ore. 239 ; Middleditch v. Williams, 45
N. J. Eq. 726; Foster's Estate, 142 Penn. St. 62.

■ Hoerth v. Zable (Ky.), 17 S. W. Rep. 360.

3 Merrill v. Rolston, 5 Redf. 220; Dew v. Clark, 3 Addams, 90; Matter of
Budlong, 126 N.Y. 423.

4 Bull v. Wheeler, 6 Dem. (N.Y.) 123; Merriam's Will, 16 N.Y. Supp. 738.

5 Leech v. Leech, 5 Clark (Pa.) 86; affi'd 9 Harr. 67; Addington v. Wilson,

5 Ind. 137; Lee v. Lee, 4 M'Cord (S. Car.) 183; Schildnecht v. Rompf. (Ky.),
4 S. W. Rep. 235.

6 Thompson v. Thompson, 21 Barb. 107.

1 Robinson v. Adams, 62 Me. 369; Will of Smith, 52 Wis. 543; Otto v. Doty,
61 la. 23; Keeler's Will, 3 N.Y. Supp. 629; Middleditch v. Williams, 45 N. J.
Eq. 726; Brown v. Ward, 53 Md. 376, 396. But there may be such subjection
to the medium's influence as to constitute undue influence. Thompson v.
Hawks, 14 Fed. R. 902.

8 Bonard's Will, 16 Abb. Pr. (N. S.) 128.

DEGREE OF INTELLIGENCE REQUIRED. 25

DEGREE OF INTELLIGENCE REQUIRED.
Executor of H amblin Converse v. Era§tus Converse.

Supreme Court op Vermont, 1849.
(21 Vt. 168.)

Appeal from a decree of the probate court, allowing the will of
Hamblin Converse. Trial by Jury, December Term, 1848. Ben-
nett, J., presiding.

The court, at the trial, among other things not objected to, in-
structed the jury that the validity of the will in question must
depend upon the fact, whether the testator had sufficient mental
capacity to execute it at the time it was executed ; and that, to
give it effect, he must then have been of sound disposing mind ; but
that this did not in any way imply that the powers of the mind
must not have been weakened or impaired by disease or old age ;
and in regard to the degree of capacity, which the jury must be
satisfied the testator possessed at the time of making the will, the
court told the jury, that it would not be sufficient that he might
be able to comprehend and understand a question which might be
propounded to him, and answer it in a rational manner ; nor was it
necessary that he should have such a capacity of mind as would
justify his engaging in complex and intricate business ; but that
the jury must be satisfied, in order to justify them in establishing
the will, that the testator, when he made it, was capable of know-
ing and understanding the nature of the business he was then en-
gaged in, and the elements of which the will was composed, and
the disposition of bis property, as therein provided for, both as to
the property he meant to dispose of by his will, and the persons
to whom he meant to convey it, and the manner in which it was
to be distributed between them ; and that, if they found all this,
it should be found that he had sufficient capacity to make the will
in question, but otherwise not.

The jury returned a verdict establishing the will. Exceptions.

The opinion of the coma, on appeal, was delivered by

"RedJU /'/. J. The Bubjecl involved in this case is one of some

difficulty. It ifl Dot easy to lay down any precise rule, as to what

26 TESTAMENTARY INCAPACITY.

exact amount of mental capacity is sufficient to enable one to dispose
of property by will. The rule laid down by the judge in this case, in
summing up to the jury, seems to have been rather a medium one,
rather sensible and judicious ; and if we reversed the judgment,
we could hardly expect to prescribe a safer or more intelligible
one. Every man will have his own mode of expressing the thing.
The rule of one is very little guide to another.

I have myself usually told a jury, in these cases, that less mind
is ordinarily requisite to make a will than a contract of sale, under-
standingly, for the reason that in contracts of sale there are usually
two parties, and some degree of antagonism between their interests
and efforts ; so that here mind is opposed to mind, and conse-
quently it is somewhat more difficult to see clearly the just bearing
of all the relations presented than under the common circum-
stances of making a will, where one is free to act upon his own
perceptions merely. But this is not always the case in making a
will. One may be beset by an army of harpies in the shape of
hungry expectants for property, altogether more perplexing than the
ordinary circumstances attending a disposition of property by
sale.

But it may be safe, no doubt, to affirm that, in making any con-
tract understandingly, one must have something more than mere
passive memory remaining. He must undoubtedly retain suffi-
cient active memory to collect in his mind, without prompting,
particulars or elements of the business to be transacted, and to hold
them in his mind a sufficient length of time to perceive, at least,
their more obvious relations to each other, and be able to form
some rational judgment in relation to them. The elements of
such a judgment should be the number of his children, their de-
serts, with reference to conduct and capacity, as well as need, and
what he had before done for them, relatively to each other, and
the amount and condition of his property, with some other things
perhaps. The capability of men in health to form correct judg-
ment in such matters is no doubt very unequal, and, when there
is no inherent incongruity in the will itself, and no just ground to
suspect improper influence, juries are, and perhaps should be, very
liberal in sustaining testamentary dispositions. But there must
undoubtedly be some limit. When one is confessedly in a condi-
tion to be constantly liable to commit the most ludicrous mistakes

BLIND TESTATOR. 27

in regard to the most simple and familiar subjects, he ought not
to and cannot make a will.
Judgment affirmed.'

BLIND TESTATOR.
§ilas Ray et al. v. Hill & Archer, Ex'rs of Calvert.

South Carolina Court of Appeals, 1848.

(3 Strobh. L. 297.)

Probate of Will.

It appeared by the testimony that at the time of executing the
will testator was blind. From a verdict establishing the will, the
contestants appealed, and made this motion for a new trial.

Evans, J., delivered the opinion of the Court:

"The questions argued in this case are: 1st. Can a blind man
make a will? [The other questions, which relate to the due exe-
cution of the will, are immaterial here.]

" 1. it may be true, as stated in the argument by the appellant's
counsel, that there is no reported case in which it has been decided
that a blind man may make a will, but the proposition is affirmed in
all the elementary writers, and wherever spoken of is assumed as
an undeniable fact. In Williams on Executors, 16, it is said a
k Mind man may make a will, but certainly there is more difficulty
in proving the requisites of the statute than in the case of one who
can see.' In the case of Neil v. Neil [1 Leigh (Va.) 6], and in
our own case of Reynolds v. Reynold* ( 1 Spcers L. 253], the fad
that a blind man may make a will is assumed, and referred to as
illustrating the meaning of the requirement of the statute that the
will must be attested and subscribed in the presence of the testa-
tor. This class of persons an; not excepted by the Act, as infants,
femes covert^ and persons /">// compos mentis are, unless tl

COme within the last description, a proposition which I presume

none will affirm. Even among those who are born blind, instances
an- not wanting of the highest degree of mental culture and attain
in. -lit. even in those ciences where it would seem sight was of the
greatest importance, and among those who have become Mind from

For :i more elaborate Btatemenl <>r the required soundness <>r mind, see
ightou v. Knight, pott. Bee al o I." >'< N. -I Bq. 198; also ante,

p. l .\ and ca i cited.

28 TESTAMENTARY INCAPACITY.

disease or accident are to be found some of the greatest names in
ancient or modern times. I think, therefore, we may safely con-
clude that it is settled law that mere blindness does not incapac-
itate a man from making a will, and if no adjudged case on the
point is to be found it is because no one ever doubted it before."

[The court then consider the other questions raised — namely,
whether the testator duly signed the will, and whether the wit-
nesses subscribed it in his presence, and find on both points in the
affirmative.]

All concur. Motion denied.

BLIND TESTATOR— PROOF OF EXECUTION.
Longchamp on the Demise of Goodfellow v. Fish.

English Court of Common Pleas, 1807.
(5 B. & P. 415.)

Ejectment. Verdict for lessor of plaintiff, sustaining the will.

On a former day in this term a rule nisi for setting aside the
verdict, and having a new trial, was obtained by Shepherd, Serjt.,
on the ground that, the testator being blind, the will should have
been read over to him. It appeared that he had himself dictated
the will two months before execution, and it was then read to him,
but was not read at the time of execution.

Rooke, J. There is not the least imputation of fraud in this
case ; but the application made to us to set aside the will is founded
on mere technical reasoning. Now, unless compelled so to do by
the provisions of the statute, I never would set a will aside on
mere technical reasoning. The statute only requires that the wit-
nesses shall attest their having seen the testator sign the will, and
that the witnesses in this case do attest. If a fair ground for pre-
suming fraud were laid by the evidence, the circumstance of the
testator being blind would most materially strengthen that pre-
sumption.

[The report also gives opinions to the same effect as that of
Rooke, J., by Heath, J., and Chambre, J.]

Rule discharged.

EXTREME OLD AGE. 29

EXTREME WEAKNESS.
Ilutliorn and others v. King.

Massachusetts Supreme Judicial Court, 1811.

(8 Mass. 371.)

Appeal from decree allowing the last will of Mary JS T orris, de-
ceased. Among the reasons of appeal, one was, that the deceased
was not of sane mind at the time of executing the will, and on
this an issue was formed to the country.

On trial it appeared that the scrivener was called in at 11 o'clock
in the morning on the 21st of March, and received from testatrix
directions as to preparing her will. She was then very ill, and
continued sinking until o'clock in the evening, when she exe-
cuted the will, and at a quarter-past 8 o'clock the same evening
expired. The reporter states the instructions of the court as
follows:

" After the examination was finished the evidence was minutely
summed up to the jury by Serf*/ trick, J., and the jury were in-
structed by him {Sewell and Parker, justices, expressly concur-
ring), that if they should be of opinion that the testatrix, at the
time of dictating the will, had sufficient discretion for that pur-
pose, and that, at the time of executing the will, she was able to
recollect the particulars which she had so dictated, they might find
their verdict that she was of sound and disposing mind and mem-
ory at the time of executing the will. And they found accord-
ingly; and the will was proved, approved, and allowed by the
court."

EXTREME OLD AGE.

ColliiiN v. Townley and Johnson.

New Jersey Prerogative Coubt, 1871.

(21 X. .1. I'm. 858.)

The Orphans' Court admitted to probate the will of Sarah Col-
lin-, deceased.

Appeal.

Tin. Ordinary. The testatrix was ninety-eighl years of age at
the time ehe made the will in question. [Jpon an examination of
the evidence this appears to be the only ground for filing a caveat
againsl the probate of her will. No unsoundness or imbecility "f

30 TESTAMENTARY INCAPACITY.

mind is shown of a kind that approaches to defect of testamentary
capacity. Nor is there any proof of any fraud, circumvention, or
undue influence in procuring the will. There is no ground to
sustain the appeal against the admission of the will to probate.

The caveator is a son of testatrix ; he resided not far from his
mother, and knew her situation and capacity. More than one
unsuccessful attempt to procure an inquisition of lunacy against her
in the last years of her life had been made and failed. Of all this
he had full knowledge. The will gave the bulk of the property
of testatrix to one child, and very little to her other children ; yet
this child was a daughter, with whom she had lived for many
years, and who had taken care of her before and after she acquired
her property upon the death of her son Hugh.

There may exist sufficient reason for examining into the valid-
ity of a will made by a mother in favor of a daughter with whom
she has lived for years, especially when the testatrix is of the age
of Mrs. Collins. Her other children have the right to require
that it be clearly proved that she executed the will, understanding
that it was her testamentary act. When they go beyond this, and
continue litigation by a protracted inquiry into the capacity of the
testatrix, it is in the discretion of the court to award costs against
them, or to refuse any allowance of costs, as they think the con-
duct of the contestants may justify by the evidence in the case.
The Orphans' Court were of opinion that sufficient reason for con-
tinuing the contest did not appear, and therefore refused to allow
costs. I concur in that opinion, and therefore affirm the decree
in that particular also.

(The ordinary here discusses and approves the disposition of the
matter of costs below.)

The proceedings in the Orphans' Court are in all things affirmed.

DEAF-AND-DUMB TESTATOR— INSUFFICIENT PROOF.
In the Good's of Francis Owston (deceased), on Motion,

English Court op Probate, 1862.
(2 Sw. & Tr. 461.)

Francis Owston, a labourer, who died on the 6th of January,
1862, was deaf and dumb, and could neither read nor write.

DEAF-AXD-DUMB TESTATOR. — INSUFFICIENT PROOF. 31

Ou the 7th of January, 1S57, he sent for Robert Bradley, an ac-
quaintance of forty years' standing, who was able to communicate
with him by signs and motions, to assist him in making his will.
On the motion for probate, affidavits were offered setting forth
that testator then informed said Bradley of his wishes by signs and
motions perfectly understood by both of them ; that Norwood Law-
son, since deceased, a school-master, was present, and wrote out the
will according to these instructions; that it was then explained to
testator by signs, and approved and signed by him; and that he
afterwards acknowledged it before the witnesses and asked them
to attest it, all by signs.

Dr. Spmks moved for probate of the will to be granted to Rich-
ard Mosey Owston, the sole executor named therein.

Sir C. Cresswell: This is a very singular case. Robert Brad-
lev does not state the nature of the signs by which he communi-
cated with the testator, whether he conversed with his fingers or
not. It does not appear that he was habitually conversant with
deaf-and-dumb people. I shall require a further affidavit of the
nature of the signs and motions with which Bradley communi-
cated with the deceased before I grant the motion. I should like,
also, to have the consent of the party entitled in the event of in-
testacy. Let the motion stand over.

Dr. Spinks renewed the motion on the following further affi-
davit of Robert Bradley: "That my late father was the occupier
of a farm at Thorneholme, in the county of York, comprising
about -loo acres of land, for nineteen years, and after leaving that
farm removed to Wetwang, in the same county, and occupied a
farm there for eleven years, and that the said Francis Owston. the
testator, who was deaf and dumb, was a labourer in the employ-
ment of my said father at Thornholme and Wetwang for a period
of twenty-five years, namely, from the year L814 to the year L840,
and dining pari of thai period resided in the house of my said fa-
r. Thai the said testator used to take me to Burton Agnes

School when I Was a child, and frOU] seeing him daily I'm- upwards

<>f twenty pear . I learnt to converse with him by signs and mo-
tion-, making letter- on the palm of my hand-, and by the deal

and-dnmb alphabet. Thai all my brothers and could also

understand and converse with him 1> and motions, bul none

of them bo well ae I could. That while the .-aid testator was in the

32 TESTAMENTARY INCAPACITY.

employ of ray said father, he (the said testator) taught me to plough,
to shear sheep, and to play at whist, he being a very good whist-
player. That I frequently sent him on numerous errands, and
frequently sent him into my father's fields to fetch up a particular
horse, and he has gone away alone and brought it back without
any other means of information than the sisnis and motions which

*/ CD

I had used. That when I marked with the finger on the palm of
the hand the name of any person the said testator was acquainted
with, he knew it directly, and would give me to understand that
he did so by making signs indicative of the trade or business of
such person. That the said testator could and did also converse
with me by these signs and motions, and give me information as
to my grandfather, and told me his age. That when I attended at
the house of the said testator to interpret for him on the making
of his will, as mentioned and set forth in my affidavit, sworn
herein on the 12th of February, 1862, the said testator used both
signs and letters on his hand ; he made signs indicating that all his
money, furniture, and everything he possessed was to be given to
his nephew, Richard Mosey Owston, who was then present, and
marked his said nephew's initials on his hand, putting his finger
in his mouth, which was a sign that the person he referred to was
a relation. The said Richard Mosey Owston had attended to the
said testator's business matters for some time, and was present at
the testator's request, and the testator pointed to him as the person
he wished to have all his property. That the said testator had
separate signs or marks for gold, silver, and copper ; for gold he
touched his neckerchief, silver his shirt, and copper the buttons of
his coat. He used all these signs, touched most of the furniture,
and gave me, by aid of the marks and signs, to understand they
were all for his said nephew. When I replied to that effect, he
understood at once, and expressed himself satisfied. That I am
informed (and believe it to be true) that the only personal estate
of which the said testator died possessed consisted of his household
furniture (of trifling value) and the sum of £50 due on note."
(Here follows a statement concerning testator's next of kin and his
relations with them.)

Sir C. Ckesswell : I cannot consider this as a sufficiently satis-
factory account of the method in which the instructions of the de-
ceased are said to have been taken. I am not inclined to let pro-

DEAF-AND-DUMB TESTATOR. — SUFFICIENT PROOF. 33

bate of this paper pass on motion, at least without the consent of
the next of kin.

Motion rejected.

[Also Rollwagen v. Rollwagen, 63 K Y. 504.]

DEAF-AND-DUMB TESTATOR.— SUFFICIENT PROOF.

In the Goods of Ceale (deceased).

English Court of Probate, 1864.
(3Sw. & Tr. 431.)

John Geale, late of Vately, in the county of Hants, yeoman,
died on the 25th of January, 1864, leaving a will of the 4th of
Julv, 1861. lie was deaf and dumb, and could neither read nor
write, and had executed the will by mark.

Affidavits of Martha Geale, the deceased's widow, and of R. T.
Dunning, a wine merchant, and Isaac Hilton, parish clerk, the
attesting witnesses, were filed. They deposed that the deceased
was shrewd and intelligent and possessed of considerable mechani-
cal skill and ingenuity. The deponents had all known him inti-
mately tor more than thirty years, and he was in the habit of con-
versing with them and they with him by signs, which were well
understood by all of them.

It appeared l.v affidavit that the will was drawn by a Mr. Shep-
pard, a solicitor, at the suggestion and requesl of testator, and ac-
cording to testator's instructions. On the 4th of duly, L861, the

attesting witnesses Were sent for; tin; deceased then by signs told
them that he wa8 about to make his will and wished them to wit -

aese it. Be then produced the will ami told them by signs how
he wished to dispose of his property. Dunning then read over
the will and ascertained th.it it was in accordance with his instruc-
tions, and then by signs explained to the deceased its contents and
effect, and he by Bigns signified bis approval.

Dr. Spinka moved for probate on these affidavits, and cited In
ih< Qoods of Owston, 2 Sw. & Tr. HH [given «nt, |. Bui Sir .1.
I'. Wilde declined to granl the motion without further affidavits

ting the nature of the eigne used.

Dr. Spinka afterwards renewed the motion upon the joint affi-
davil of the widow and the attesting witne tes, which, in substance,
3

34 TESTAMENTARY INCAPACITY.

was as follows : " The signs by which deceased informed us that
the will was the instrument which was to deal with his property
after his death in case she survived him were in substance, so far
as we are able to describe the same in writing, as follows, viz. :
The said John Geale first pointed to himself, then he pointed to him-
self, then he laid the side of his head upon the palm of his right hand,
with his eyes closed, and then lowered his right hand towards the
ground, the palm of the same hand being upwards. These latter signs
were the usual signs by which he referred to his own death or the
decease of some one else. 2. He then touched his trousers pocket
(which was the usual sign by which he referred to his money), then he
looked all around and simultaneously raised his arms with a sweeping
motion all around (which was the usual sign by which he referred to
all his property or all things). 3. He then pointed to his wife, and
afterwards touched the ring finger of his left hand, and then
placed the right hand across his left arm at the elbow, which lat-
ter signs were the usual signs by which he referred to his wife."
(Here follows a similar description of the particular signs employed
by testator to indicate his further wishes.) " 7. After the testator
had, in the manner aforesaid, expressed to us what he intended to
do by his said will, the said B. T. Dunning, by means of the before-
mentioned signs, and by other motions and signs by which we were
accustomed to converse with him, informed the said testator what
were the contents and effect of the said will."

Sir J. P. Wilde granted the motion, [apparently because the
meaning assigned to the acts had a rational connection with them].

IDIOCY.— EFFECT OF SUBSEQUENT INQUISITION.

Townsend v. Bogart.

Surrogate's Court, New York County, New York, 1881.

(5 Redf. 93.)

Application for probate of the will of Mary E. Hatfield, deceased,
dated September 1, 1869.

It was alleged by the contestant, among other objections, that
testatrix was not of sound mind. The will gave all her property
to Ellen Bogart, her cousin. Decedent was unmarried, and at the

IDIOCY. — EFFECT OF SUBSEQUENT INQUISITION. 35

date of the will was about forty years old, and for the previous
seven years had lived in the family of Anderson Bogart, the father
of her cousin Ellen. A sister of testatrix was an inmate of an in-
sane asylum. Testatrix was a member of a Methodist Church in
New York City. She was able to do certain kinds of housework,
and keep her room in order ; could tell a good penny from a bad
one, and a five-cent piece from a dime, but not a twenty-five from
a fifty-cent piece; and could not tell time nor count her fingers;
and in 1871, two years after the date of the will as the result of an
inquiry by the Supreme Court, she had been duly declared an idiot.
Other facts are stated in the portion of the opinion given below.

('<ilrni, S. (after stating the substance of the evidence, includ-
ing additional facts similar to those above stated, and discussing a
number of authorities, including Bundy v. McKnight, 48 hid. 502).

In Bundy v. McKnight, above cited, the doctrine is, to my mind,
best expressed, that the law does not undertake to test a person's
intelligence, and define the exact quality of mind and memory
which a testator must possess to authorize him to make a will, yet
it does require him to possess a mind to know the extent and value
of his property, the number and names of the persons who are the
natural objects of his bounty; their deserts in reference to their
conduct and treatment towards him, their capacity and necessities;
that he shall have sufficient active memory to retain all those facts
in his mind long enough to have his will prepared and executed;
and if this amount of mental capacity is somewhat obscure or
clouded, still the will may be sustained. (The Surrogate here dis-
cusses the term non compos mentis, and also the statutory provi-
sion concerning testamentary capacity.)

It is true that she appeared to recognize acquaintances, did cer-
tain routine domestic work, remembered her sister, and felt un-
kindly towards Mrs. Townsend for a reason which she seemed not
to understand and to entirely misconceive, for she supposed that
Bhe had borrowed money of Her and had not repaid it, while the
fact was. that the borrowing was of decedent's mother, and her
mind Beeined to have been materially prejudiced against her sister

on that account. It is true, also, that she attended Sunday-school
and church, and went to familiar places alone, and made trilling

purcha es under the instructions of others ; that she could repeat the

Lord's Prayer, remember a text of the clergyman, and state some-

36 TESTAMENTARY INCAPACITY.

thing of what he said ; that she stated she intended to give her prop-
erty to her second cousin, and that her sister should not have it for
reasous above stated, and because she had neglected her ; and that
she, after its execution, stated that she had made a will, thus dis-
posing of her property, and that she went to the attorney who drew
the will, and gave him instructions as to what she desired to do
with her property.

Taking all these facts into consideration, with the other indis-
putable facts proved by witnesses on both sides, that though she
attended school for three years she did not learn to read or write,
never learned to count more than ten, could not tell the time of
day from clock or watch, could not add or multiply, had no idea of
the value of property, or of money beyond ten cents, could not tell
where to go when she left the cars, and when she went out alone
to familiar places on familiar streets, carried with her a card with
her address, lest she should be lost, it being deemed necessary by
her friends ; that she was of weak mind, unable to do or attend to
most things which most persons of ordinary mind and intelligence
could do ; that she was easily lost ; could not reckon money ; had
no idea or understanding of the amount or the value of her prop-
erty, the value or worth of anything, — it is quite apparent that her
intellectual capacity was not equal to that of an ordinary intelligent
child of ten years of age.

How can it be said that she had any intelligent understanding
of the value of her property which she was disposing of by will,
when she had no appreciation of values ? That fact alone seems
to indicate that she could not have known whether she was dispos-
ing of property worth five dollars or five millions.

It is very difficult to say that decedent was not laboring under an
obvious delusion which affected her testamentary disposition in re-
spect to her sister, Mrs. Townsend, unless she was mentally incapa-
ble of appreciating the difference between the obligation of that
sister to her mother by reason of borrowing $2,000 and that to her-
self ; and it is equally difficult to reconcile her will with an intelli-
gent appreciation by her of the relation she bore to her sister, who
was in the insane asylum, and her duty towards her, and her just
claims upon her bounty.

The circumstance that she went to the attorney and gave instruc-
tions respecting her will is very materially weakened by the fact

IDIOCY. — EFFECT OF SUBSEQUENT INQUISITION. 37

that she was accompanied by Mr. Bogart and the devisee, and that
the will was of the simplest character, and its terms easily fixed
upon her mind by a little tutoring-.

These circumstance-, aside from the proceedings in idiocy, seem
to me to forbid the admission of this will to probate, but when
taken in conjunction with those- proceedings and their result,
though they are obviously neither conclusive nor binding upon this
court in the determination of this case, it seems to be impossible to
escape the conviction that decedent, when she made this instru-
ment, was not possessed of sufficient mental capacity to understand
theeffeet of the disposition and the condition or value of her prop-
erty, or the just claims of her sisters upon her bounty. For be it
remembered that these proceedings were substantially sustained by
the testimony of Mr. Bogart and one of his daughters, and that all
the efforts to explain and escape the force of the testimony on the

and that they did not understand the nature of the proceedings
and it- purpose, in no way controvert the facts to which they
testified ; and the effort to belittle the significance of that adjudica-
tion on account of Dr. Warner not being present, and the hasty
disposition of the case, signally fails, for the testimony of Mr.
Boese, one of the commissioners, and that of Mr. Man, an experi-
enced and intelligent lawyer, who made a careful examination of
the decedent before the proceedings were taken, and had two inter-
view.-, Bhow that the proceedings were conducted with proper pre-
caution, and leave no doubl in my mind that the finding of the jury
was in accordance with the fact,-.

If thi- were a case of lunacy it might very well be that the in-
quisition in lunacy, two years after the execution of the will in
question, might not be very significant, for the reason that lunacy
mighl l»e the result of disease or Budden accident, or development

of hereditary mental tainl ; but the imbecility of mind which was

manifested in the case "I the decedent was not one of sudden de-
velopment, and some of the proponent's witnesses indicate that. ii.

their opinion, after the death of her mother and under the care "'

the Bogart family, she improved in her mental condition, and its man'

ifestation; and I am of t he opinion that, if the decedent w a- an idiot,

when the inquisition was had. it is impossible, on the prool in this
case ami from the nature of the affliction, that she could have been
of sound and disposing mind when this instrument was executed.

38 TEST AMENTA It Y INCAPACITY.

I am of the opinion that, from the proof in this case, decedent
was not of sound and disposing mind when she executed the in-
strument propounded, and that for that reason the will should be
denied probate.

Decreed accordingly.

INSANE DELUSIONS.
Houghton and Marston v. Knight and Otlier§.

English Court op Probate, 1873.
(L. R. 3 P. &D. 64.)

The plaintiffs, Sir Charles BoughtOn and Mr. Marston, pro-
pounded the will of John Knight, of Henley Hall, Shropshire,
dated the 27th of January, 1869. The deceased died on the 7th
of September, 1872. The defendants, the sons of the deceased,
pleaded that the deceased was not of sound mind, memory, and
understanding on the 27th of January, 1869, the day the will bears
date. Issue was joined on this plea. The property of the deceased
consisted of the Henley Hall estate, the net rental value of which
was £1,500 per annum, and personalty to the value of £62,000.
By the will propounded Sir Charles Boughton and his sons were
the devisees of the whole real estate ; the testator's son, James
Thomas, had a legacy of £8,000, his son Charles £7,000, and John
a life interest in £10,000. The children of his deceased daughter,
Henrietta Kent, were not mentioned in the will.

The trial extended over fourteen days in March, 1872, before
Sir J. Hannen and a special jury.

March 31. Sir J. Hannen, in summing up, made the following
among other observations on the subject of testamentary capacity :
The sole cniestion in this case which you have to determine is, in
the language of the record, whether Mr. John Knight, when he
made his will on the 27th of January, 1869, was of sound mind,
memory, and understanding. In one sense, the first phrase, sound
mind, covers the whole subject; but emphasis is laid upon two
particular functions of the mind, which must be sound in order to
create a capacity for the making a will ; there must be a memory
to recall the several persons who may be fitting objects of the tes-
tator's bounty, and an understanding to comprehend their rela-

INSANE DELUSIONS. 39

tionship to himself and their claim upon him. But for conven-
ience the phrase "sound mind" may be adopted, and it is the one
I shall make use of throughout my observations. Now you will
naturally expect from me a definition, or at any rate an explana-
tion of the legal meaning of the words " sound mind," and I will
endeavour to give you such assistance as I am able, either from my
own reflections on the subject, or by the aid of what has been said
by other judges, whose duty it has been to consider this important
question before me. I must commence, however, by telling you
what these words do not mean. They do not mean a perfectly
balanced mind. If so, which of us would be competent to make a
will ? Such a mind would be free from all influence of prejudice,
passion, and pride. But the law does not say that a man is incapaci-
tated from making a will if he proposes to make a disposition of his
property moved by capricious, frivolous, mean or even bad motives.
"We do not sit here to correct injustice in that respect. Our duty
is limited to this: to take care that that, and that only, which is
the true expression of a man's real mind, shall have effect given to
it as his will. In fact, this question of justice and fairness in the
making of wills in a vast majority of cases depends upon such nice
and fine distinctions that we cannot form, or even fancy that we
can form, a just estimate of them. Accordingly, by the law of
England, every one is left free to choose the person upon whom he
will bestow his property after death, entirely unfettered in the se-
lection In- may think proper to make. He may disinherit, either
wholly or partially, his children, and leave his property to stran-
gers to gratify his spite, or to charities to gratify his pride, and we
mnsl give eflfecl to his will, however much we may condemn the

coarse he In- pursued. In this respect the law of England differs
from that of other countries. 1 It i.- thought better to risk the chance
of :m abuse of the power arising from such liberty than to deprive
men of the righl to make such a selection as their knowledge of
the characters, of the past history and future prospects of their
children or other relatives ma\ demand, and we must remember
thai we are here to administer the law of England, and we musl
do1 attempt to correel its application in a particular case by know

1 The law in our States i> in this respect Hke thai <>f England, Bave for our
Btatute n tricting giftt to charity, etc See tndex, " Restrictions."

40 TESTAMENTARY INCAPACITY.

ingly deviating from it. I have said that we have to take care
that effect is given to the expression of the true mind of the tes-
tator, and that, of course, involves a consideration of what is the
amount and quantity of intellect which is requisite to constitute
testamentary capacity. I desire particularly now, and throughout
the consideration which you will have to give this case, to impress
upon your minds that, in my opinion, this is eminently a practical
question, one in which the good sense of men of the world is called into
action, and that it does not depend solely on scientific or legal defi-
nition. It is a question of degree to be solved in each particular
case by those gentlemen who fulfill the office which you have now
imposed on you, and on this point for accuracy I should wish to
quote the words themselves of Lord Cran worth in Boyse v. Ross-
borough : ' " On the first head the difficulty to be grappled with
arises from the circumstance that the question is almost always one
of degree. There is no difficulty in the case of a raving madman or a
drivelling idiot in saying that he is not a person capable of dispos-
ing of property ; but between such an extreme case and that of a
man of perfectly sound and vigorous understanding, there is every
shade of intellect, every degree of mental capacity. There is no
possibility of mistaking midnight for noon, but at what precise mo-
ment twilight becomes darkness is hard to determine." In consid-
ering the question, therefore, of degree, large allowance must be
made for the difference of individual character. Eccentricities, as
they are commonly called, of manner, of habits of life, of amuse-
ments, of dress, and so on, must be disregarded. If a man has not
contracted the ties of domestic life, or if, unhappily, they have
been severed, a wide deviation from the ordinary type may be ex-
pected, and if a man's tastes induce him to withdraw himself from
intercourse with friends and neighbours, a still wider divergence
from the ordinary type may be expected. We must not easily
assume that because a man indulges his humours in unaccustomed
ways that he is therefore of unsound mind. We must apply some
other test than whether or not the man is very different from other
men. Now the test which is usually applied, and which in almost
every case is found sufficient, is this : Was the man labouring un-
der delusion % If he laboured under delusion, then to some extent

1 6 H. L. C. at p. 45.

INSANE DELUSIONS. 41

his mind must be unsound. But though we have thus narrowed
the ground, we have not got free altogether from difficulty, because
the question still arises, What is a delusion? On this subject an
eminent judge who formerly presided in the Court, the jurisdic-
tion of which is now exercised here, Sir J. Nicholl, in the famous
case of Dew v.Clark and Clark, 1 says: "One of the counsel (Dr. Lush-
ingtou) accurately expressed it ; it is only the belief of facts which no
rational person would have believed that is insane delusion." Gen-
tlemen, in one sense, that is arguing in a circle, for, in fact, it is
only saying that a man is not rational who believes what no rational
man would believe; but, for practical purposes, it is a sufficient
definition of a delusion, for this reason — that you must remember
that the tribunal that is to determine the question (whether judge
or jury), must, of necessity, take his own mind as the standard
whereby to measure the degree of intellect possessed by another
mau. You must not arbitrarily take your own mind as the meas-
ure, in tin's sense, that vou should sav, I do not believe such and
such a thing, and therefore the man who does believe it is insane.
Nay, more, you must not say, I should not have believed such and
such a thing, therefore the man who did believe it is insane. But
you must of necessity put to yourself this question and answer it:
Can I understand how any man in possession of his senses could
have believed such and such a thing? And if the answer you give
is, I cannot understand it, then it is of the necessity of the case
thai you should say the man is not sane. Sir J. Xicholl, in another
passage, 1 give- what appears to me to be a more logical and precise
definition of what a delusion is. [Here follows the statement given

ante, p. !'*>.] I believe yon will find that that test, applied will
solve most, if not ;ill, the difficulties which arise in investigations

of this kind

It is unfortunately not a thing unknown that parents and in

justice to women I am bound to say it is more frequently the case
with fathers than mothers, thai they take unduly harsh views of
tin' characters of their children, sons especially. Thai is not un-
known. Ihit there is ;i limit beyond which one feel- that it cea
to he a question of harsh, unreasonable judgment of character, and

1 Reported by Baggard, London, I826,a1 p. 7. :'. A<l«l. Eccl. 7'.).
B \<M . p. 90

42 TESTAMENTARY INCAPACITY.

that the repulsion which a parent exhibits towards one or more of
his children must proceed from some mental defect in himself. It
is so contrary to the whole current of human nature that a man
should not only form a harsh judgment of his children, but that he
should put that into practice so as to do them injury or deprive
them of advantages which most men desire above all things to con-
fer upon their children. I say there is a point at which such repul-
sion and aversion are themselves evidence of unsoundness of mind.
Fortunately the case is rare. It is almost unexampled that a delu-
sion consisting solely of aversion to children is manifested without
other signs which may be relied on to assist one in forming an
opinion on that point. Perhaps the case which most nearly
approaches such an one was Dew v. Clark and Clark. 1 In that
case there were indeed some minor matters which were adverted to
by the judge in giving his judgment, but he passed over them nat-
urally lightly. Fur instance, there was the fact that the testator,
who had practiced medical electricity, attached extraordinary im-
portance to that means of cure in medical practice. He conceived
that it might be applied to every purpose, amongst the rest even to
the assisting of women in childbirth. But these were passed over,
although not cast aside altogether by the learned judge, as not enter-
ing into the basis of his judgment. What he did rely upon was a
long, persistent dislike of his only child, an only daughter, who,
upon the testimony of everybody else who knew her, was worthy
of all love and admiration, for whom indeed the father entertained,
so far as his nature would allow, the warmest affection ; but it broke
out in the most extraordinary form : he desired that his child's mind
should be entirely subjected to his own, that she should make her
nature known to him, and confess her faults, which of course a
human being can only do to its Maker ; and because the child did
not fulfill his desires and hopes in that respect, he treated her as a
reprobate and an outcast. In her youth he treated her with great
cruelty. He beat her, he used unaccustomed forms of punishment,
and he continued throughout his life to treat her as if she were the
worst, instead of apparently one of the best of women. In the end,
he left her indeed a sum of money sufficient to save her from actual
want, if she had needed it ; but in fact, she did not need it. She

1 Reported by Haggard, London, 1826 ; 3 Add. Eccl. 79.

INSANE DELUSIONS. 43

was well married to a person perfectly able to support her, and it
mieht have been argued that he was content to leave her to a for-
tune which she had secured by a happy marriage. He was not con-
tent to leave her so. He bequeathed to her a sum of money which
would have been sufficient, in case her husband had fallen into
poverty, to save her from actual want, and the rest of his property
he left, not to strangers or charities, but to two of his nephews. He
was a man who throughout life had presented to those who met
him in the ordinary way of business or the ordinary intercourse of
life the appearance of a rational man. He had worked his way up
from a low beginning. He had educated himself as a medical man,
going to the hospitals and learning all that could be learned there,
and he amassed a large fortune, considering what he commenced
with, some £25,000 or £30,000, by the practice of his profession.
Yet, upon the ground I have mentioned, that the dislike he had
conceived for his child had reached such a point that it could only
be attributed to mental unsoundness, the will so made in favour of
the nephews was set aside, and the law was left to distribute his
property without reference to his will. I have said that one usually
has other facts before one beside the bare circumstance of a father
conceiving a dislike for a child, by which to estimate whether such
dislike were rational or irrational ; so in this case it has been con-
tended there are criteria from which to judge of Mr. Knights
treatment of his children in his lifetime, and after his death by his
will. Von arc entitled, indeed are bound, to consider this case not
in reference to any particular act, not to confine your attention to
one particular act such as the making of a will, but you must con
sider Mr. Knight's life as a whole in order to determine whether

in January, L869, when he made the will, he was of sound mind.

Gentlemen, I think I can give von some assistance in determining

the question before yon by referring to what has been said on the

Bubjecl in another departmenl of the law. Some years ago the
question of what amounl of mental capacity was required to make
a man responsible for crime was considered in McNaughten s ( !ase '
Nodoubl the question ie treated somewhat differently in a criminal
-nit to what it is here (the difference I will explain pre i utlj >; but
then- is, as yoti will easily Bee, an analogy between the cases which

1 LOCI. & P. 200.

44 TESTAMENTARY INCAPACITY.

will be of use to us in considering the points before us. Lord Chief-
Justice Tindal, in expressing the opinion of all the judges, said :
" In all cases every man is to be presumed to be sane until the con-
trary is proved, and it must be clearly proved, that at the time of
committing or executing the act the party was labouring under such
defect of reason from disease of the mind as not to know the nature
and quality of the act he was doing ; or if he did know it, that he did
not know he was doing what was wrong." That, in my opinion,
affords as nearly as possible a general formula which is applicable
in all cases in which the question arises, not exactly, perhaps, in the
terms I have read, but to the extent I will explain to you. It is
essential, to constitute responsibility for crime, that a man shall
understand the nature and quality of the thing he is doing, or that
he shall be able to distinguish in the act he is doing right from
wrong. Now, a very small degree of intelligence is sufficient to
enable a man to judge of the quality and nature of the act, and
whether he is doing right or wrong, when he kills another man ;
accordingly he is responsible for the crime committed if he possesses
that amount of intelligence. And so in reference to all other
concerns of life, — was the man at the time the act was done of suffi-
cient capacity to understand the nature of the act ? Take the ques-
tion of marriage. It is always left in precisely the same terms as
I have to suggest in this case. If the validity of a marriage be dis-
puted on the ground that one or other of the parties was of unsound
mind, the question will be, was he or she capable of understanding
the nature of the contract which he or she had entered into ? The
same will occur in regard to contracts of selling and buying.
Again, take the case suggested by counsel, of a man, who being
confined in a lunatic asylum, is called upon to give evidence.
First, the judge will have to consider, was he capable of under-
standing the nature and character of the act that he was called upon
to do, when he was sworn to speak the truth 1 "Was he capable of
understanding the nature of the obligation imposed upon him by
that oath ? If so, then he was of sufficient capacity to give evi-
dence as a witness. But, gentlemen, whatever degree of mental
soundness is required for any one of these things, — responsibility
for crime, capacity to marry, capacity to contract, capacity
to give evidence as a witness, — I must tell you, without fear
of contradiction, that the highest degree of all, if degrees there

INSANE DELUSIONS. 45

be, 1 is required in order to constitute capacity to make a testamentary
disposition. And you will easily see why. Because it involves a
larger and wider survey of facts and things than any one of those mat-
ters to which I have drawn your attention. Now I would call your
attention to a case which has been frequently adverted to during the
course of this trial, the case of Banks v. Goodfellow, 2 which was
decided in the Court of Queen's Bench, when I had the honour of
being a member of it. I was a party to the judgment, but the
language of it was that of the present Lord Chief-Justice. As a
party to it, I am bound by it in the sense in which I understand
its words. There can be little room for misconception as to its
meaning, but I will explain to you the scope and bearing of it. It
was a case in which a man who had been subject before and after
making his will to delusions, was not shewn to be under the influ-
ence of those delusions at the time, or, on the other hand, to be so
free from them, that if he had been asked questions about them,
he would not have manifested that they existed in his mind. But
he made a will, by which he left his property to his niece, who had
lived with him for many years, and to whom he had always ex-
pressed an intention to leave his property, and to whom, in the
ordinary sense of the word, it was his duty to leave the property,
and of whom it was right he should take care on his death. It was
left to the jury to say whether he made that will uninfluenced by
the delusions he was bIicwii to have had before and after; and the
jury found thai the will which I have described to you was made
live from the influence of the delusions under which he suffered ;
and it was held that, under those circumstances, the jury finding

the fact in that way, such finding could not be set aside. 1 will
not trouble yon by reading the whole judgment, which, however,
would well repay the trouble of reading it, by laymen as well as by
professional men, but I will pick out passages to shew von how

1 Concerning this expression, Sir J. Batmen has since said (see note, l> R 8
I'. & I), i, " 1 1 li:i been erroneously supposed that I said [in Boughton v. BLnighl ],
ilia i ii requin a e ater degree of soundness of mi ml to makes will than to do
any other act. I never said, and I never meant tosayso. What I have said,
ami I repeat it, is, thai if you are at liberty to draw distinctions between varl
(hi- degrees of roundness of mind, then, whatever Is the highest degree <>f
soundness is required i" make a will " In tact, it would appear after all
attempt t" lav down a rule, that each ca e I □ ii own general merits.

' L. I:. •". Q. B. 549.

46 TESTAMENTARY INCAPACITY.

carefully guarded against misapprehension the decision is. I
shall have occasion by-and-by to call your attention to instances in
which I think it has been sought to apply it incorrectly in the
arguments which have been addressed to you. In one passage the
Lord Chief- Justice says : " No doubt when the fact that a testator
has been subject to any insane delusion is established, a will should
be regarded with great distrust, and every presumption should, in
the first instance, be made against it. Where insane delusion has
once been shewn to have existed, it may be difficult to say whether
the mental disorder may not possibly have extended beyond the par-
ticular form or instance in which it has manifested itself. It may
be equally difficult to say how far the delusion may not have influ-
enced the testator in the particular disposal of his- property. And
the presumption against a will made under such circumstances be-
comes additionally strong, where the will is, to use the term of the
civilians, an inofficious one ; that is to say, one in which natural
affection and the claims of near relationship have been disregarded."
In an earlier passage the Lord Chief-Justice lays down with, I think
I may say, singular accuracy, what is essential to the constitution
of testamentary capacity : " It is essential to the exercise of such a
power (of making a will) that a testator shall understand the nature
of the act, and its effects ; shall understand the extent of the prop-
arty of which he is disposing ; shall be able to comprehend and
appreciate the claims to which he ought to give effect, and with a
view to the latter object that no disorder of the mind shall poison
the affections, pervert his sense of right, or prevent the exercise of
his natural faculties, that no insane delusion shall influence his will
in disposing of his property, and bring about a disposal of it which,
if the mind had been sound, would not have been made. Here,
then, we have the measure of the degree of mental power which
should be insisted on. If the human instincts and affections, or the
moral sense, become perverted by mental disease, if insane suspi-
cion or aversion take the place of natural affection, if reason and
judgment are lost, and the mind becomes a prey to insane delusions
calculated to interfere with and disturb its functions, and to lead
to a testamentary disposition, due only to their baneful influence,
in such a case it is obvious that the condition of testamentary power
fails, and that a will made under such circumstances ought not to
stand." Gentlemen, I have no fear, when rightly understood, of

INSANE DELUSIONS. -47

that case being misapplied Now, gentlemen, these being the

epochs of his life, let us direct our attention to the manifestations
of character and condition of mind in him. I have already said, in
my opening observations, that a very large allowance must be made
for eccentricities. I do not say that they never in themselves can
amount to evidence upon which a jury would be justified in com-
ing to the conclusion that a man is of unsound mind, when coupled
with what I will call, for convenience sake, an unnatural will, but,
certainly, eccentricities must not be allowed to weigh heavily in the
scale against the argument that a man is of sound mind. Really
the forms and usages of society surround us like an atmosphere,
and compress us all into a somewhat monotonous uniformity of
mould, and if a man is relieved from this pressure, his individu-
alitv will expand into strange and sometimes fantastic shapes, but
it must not be assumed he is on that account insane. Many of the
acts of the deceased of this kind, which have been enumerated by
counsel, cannot, I think, in themselves establish, and are very far
from establishing, unsoundness of mind. They may suggest the
idea, they may help to confirm the idea derived from other sources,
that there was unsoundness in his mind ; they may, so to speak, fill
up the crevices of the argument, but they do not themselves con-
stitute sound material mi which a conclusion can be built as to the
deceased's capacity. (His Lordship fully reviewed all the evidence
which had been produced at the trial, and concluded:)

It i> for von to say whether the accumulation of this evidence
(for the defendants) has not this effect on your minds that it leads
x . > 1 1 to the conclusion that, whatever fluctuation there may have
been in the condition of Mr. Knight's mind, for some years before

he made this will he had been subject to delusions, especially in
reference to the character, the intention, and the motives of his
Son's acts: and if you so find, then I must impress upon you that
it become- the duty of the iilaiutilfs to satisfy you that at the
tmie the testator made the will he wasd'ree from t hose delusions,
or free from their influence. The burthen of proof, as it is called,
is upon those who assert that the testator was of a sound and dis-
posing mind.' In considering the question you cannot put yside
the contents of, and surrounding circumstances connected with,

1 Bee Index, " Burden of Proof."

48 TESTAMENTARY INCAPACITY.

the will. Again, on considering whether or not the testator was
free from delusions as to the characters of his several sons, when
he passed them over in the disposition of his real estate, leaving
them only limited sums of money out of his personalty, you must
not disregard the fact that he selected in their place one who had
no natural claims upon him, of whom he knew little, and to whom
he was under no such obligations as are usually recognized as the
foundation of such gifts. You must take that into your consider-
ation in determining whether at the time the deceased made his
will those prevailing delusions to which I have referred had passed
away, or were utterly inoperative. Gentlemen, I have detained
you at some length. I felt the importance of the case was such as
to justify it, and I now leave you to discharge that responsible
duty of which I reminded you at the outset of the observations I
have addressed to you.

The jury found, that on the 27th of January, 1869, the date of
the will propounded by the plaintiffs, the deceased, John Knight,
was not of sound mind, memory, and understanding. (Here fol-
lows a further opinion on the matter of costs.)

Will pronounced against.

INSANE HATRED FOR A SON.

Merrill v. Rolston.

Surrogate's Court, New York County, New York, 1881.

(5 Redf. 220.)

Application for the probate of instruments purporting to be the
last will, and codicil thereto, of Caroline A. Merrill, and bearing
date respectively on May 2, 1871, and December 9, 1875.

George Merrill, a nephew and adopted son, and others, contested
on the ground of mental incapacity and undue influence. The
court found that, in view of all the testimony, "there was no
doubt as to her entire soundness of mind, except as to her so j called
delusion respecting George Merrill and his wife"; and also that
there was no reasonable ground for finding that testatrix had been
unduly influenced.

George Merrill had been informally adopted by testatrix and
her husband, about 1838 (lie being a nephew of decedent). The

INSANE HATRED FOR A SON. 49

father died in 1867, leaving a will executed in 1856, giving George
$30,000, and all in case of decedent dying before her husband.
Decedent also made a will in November, 1856, giving all her prop-
erty to her husband, but in case of his death before her, to George.
She wrote him from time to time, in most affectionate terms, ad-
dressing him as " My dear George," and signing herself, " Yom
affectionate mother."

Subsequently, and without any cause shown, decedent under-
went a complete revulsion of feeling toward George, said she had
closely watched him, and was completely convinced that he was
"entirely without principle, truth, natural affection, faith in re-
ligion — in fact, every element that made a human being above a
'brute? She also made scurrilous, obscene, and utterly false
charges against George's wife. She also wrote him as follows:
" I heartily say, may you become as deaf as your sister is ; may
you become so blind that you cannot distinguish night from day ;
may you have every trial, every disease, every affliction that was
ever sent upon man ; may I live to see you hung — hung up by
your lying tongue, is my unceasing wish. In conclusion, I give
you the curses of her you have called mother for twenty-seven
years," etc.

She had a portrait of George, which she mutilated by cutting
out the mouth and thumb, and she stated as a reason for the act
that hr had. ,i lying tongue and a false pen, and should never be
allovwd to speak or write again. Many other things are set forth
in tin- reported case, of a similar character, none of them having
any basis of fact whatever.

Calvin, 8. (after a full review of the testimony, and after ex
amining and disposing of other points) :

Taken in conjunction with the foregoing facts and circiim
stance-, her vulgar and false charge, without the re test foun-
dation, of illicit intercourse between George and liis intended wife ;

the general imputation oi unchastity, equally baseless; her diabol-
ical and fiendish imprecations upon George, just referred to; her

incoherent and impious curses ; her senseless mutilation of her will
and hi- portrait, and the reasons given for it, all combine to show-
that, if decedenl was of sound mind, an Intelligent, affectionate,
kind, modest, truthful. Christian woman had Keen transformed
into a bold, defiant, passionate, unfeeling, cruel, false, vulgar, and
l

50 TESTAMENTARY INCAPACITY.

obscene fiend incarnate, which cannot be pleaded even as a thought-
less ebullition of intemperate, ungovernable anger and jealousy, for
the utterances were oft repeated and rewritten with deliberation at
distances from the object of her malediction, with nothing appar-
ently but a distorted brain to account for her transformation so
complete and the delusions so marked, which would be a signal
mercy to her memory and the fame of her sex to ascribe it to a
morbid or insane delusion.

It is the essence of an insane delusion that, as it has no basis in
reason, so it cannot by reason be dispersed, and is thus capable of
being cherished side by side with other ideas with which it is
rationally inconsistent. (Smith v. Tebbitt, L. R. 1 P. & D. 398.)

An insane delusion is not only one which is founded in error,
but one in favor of the truth of which there is no evidence, but
the clearest evidence often to the contrary. It must be a delusion
of such a character that no evidence or argument will have the
slightest effect to remove. (1 Redf. Law of Wills, 86 ; Florey v.
Florey, 24 Ala. 241.)

(The Surrogate here quotes with approval from Stanton v.
Weatherwax, 16 Barb. 259, the definition ' given by Sir John
Nicoll, there quoted and approved ; cites 1 Bouv. Diet., " Delu-
sion," and cases cited ; and discusses Clapp v. Fullerton, 34 N. Y.
190 ; 1 Redf. on Wills, 86, note 22 ; and Seamen's Friend Society
v. Hopper, 33 N". Y. 619. He then proceeds as follows :)

The whole character, deportment, and conduct of George Mer-
rill has been conclusively proved to have* been a complete refuta-
tion of decedent's accusations, which accusations, however, appear
to have been confidently believed by her, for it would be an unjust
and unwarranted accusation that she knew them to be untrue,
and yet persisted in charging and acting upon their truth.

Her belief that the Green & Co. matter [a subject referred to
in the testimony,] had killed her husband, and that he said
so repeatedly, is against reason and contradicted by all the prob-
abilities of the case, and the whole character of her husband
afforded the most persuasive evidence against the assertion.
The education, manners, culture, habits, talents, morals, gener-
ous, honorable, and manly instincts of George Merrill contra-

1 In Dew v. Clark, 3 Add. 90, see ante, Boughton v. Knight.

INSANE HATRED FOR A SON. 51

dieted all her slanderous and libellous charges against him, and the
verbal and written opinions of her husband, and of herself, furnish
the most indubitable refutation of her allegations that neither his
adopted father or she ever felt any interest, confidence, or affec-
tion for him ; and in her case, her unvarying statements in her
correspondence of about eight years after George had graduated,
afford positive proof that she often stated and wrote most ob-
vious falsehoods respecting him, and of her opinion of and senti-
ments toward him, so that she believed the untruths, not ord/y
without t vidence, hut ayauist the coyent arguments which the facts
afford* >/.

Another feature which it seems to me should have some weight
in this inquiry, is that the prejudices, jealousy, vindictiveness, and
vulgarity of the decedent did not exhibit themselves as connected
with any other matter than her relations to George, his wife, and
the Green & Co. matter, and it seems perfectly obvious that the
decedent was possessed of a morbid mind upon those subjects, from
which there is no evidence that she ever recovered ; but on the
contrary, whenever her mind rested upon these subjects, a morbid
delusion exhibited itself; and I am of the opinion that she enter-
tained them until the execution of her will and codicil propounded,
and they constituted the motive and occasion of her change of the
terms of her will of 1856, and the disinherison of George.

This brings me to the inquiry whether the insane delusions in
respect to George were such as to avoid the will and codicil. Red-
field, in his first volume, at page 79, states the rule thus: " When-
ever it appears that the will is the direct offspring of partial in-
sanity, or monomania, under which the testator was laboring, it
should be regarded as invalid, though his general capacity be un-
impeached." (I.oyd v. Eby, s Watts 71 ; Tawney v. Long, 76

l'ellll. lOt; ; |)e\v v . Clark, 1 Add. 279, 3 Id. 79.)

Wittard on Executors, at page 8, says, of the latter ease, it must

be considered as establishing the doctrine that partial insanity will

invalidate a will which is fairly inferred to be the direct offspring
of that insanity.

In Water- v. ('ullen (2 Bradf. 354), the will was set aside on

the ground of insanity, the testatrix having died of delirium
tremensj to which die had beet subject more or less, for some time
before her death ; Bhe gave her property to the children of her

52 TESTAMENTARY INCAPACITY.

first husband, and left those by the last penniless, stating as the
reason, that the property came from her first husband ; it also
appeared that she believed that she had been poisoned by the father
of the children whom she left unprovided for, and it was held that
she labored under an insane delusion in both respects. In Stanton
v. Wetherwax, above cited, the same doctrine is maintained. See
also Seamen's Friend Society v. Hopper, above cited.

In Lathrop v. American Board of Foreign Missions (67 Barb.
590), the decree of the Surrogate, refusing probate of the instru-
ment propounded on the ground that it was executed under the
delusion that his relatives and acquaintances had entered into a
conspiracy to rob him of his property, he being a confirmed mono-
maniac upon the subject of Freemasons, and charging that his
relatives were Freemasons, was affirmed. »

In Lathrop v. Borden (5 Hun 560), the same doctrine is main-
tained ; also in Clapp v. Fullerton, above cited (see also Brick v.
Brick, 66 N. Y. 144 ; Coit v. Fatchen, 77 Id. 533 ; Denson v.
Beazley, 34 Texas 191).

In Gardner v. Lamback (47 Ga. 133), the charge to the jury,
that if the testator was partially insane, and the will was in any
way the effect or result of that insanity, it was void, was sustained.

In Potts v. House (6 Ga. 324), it was held that if the testator
was partially deranged, either as to the legatees or subject matter
of his will, he was mentally unsound in respect to the particular
will, however unimpeachable his capacity in other respects. (See
Lucas v. Parsons, 24 Id. 640 ; Brooke v. Townshend, 7 Gill. 10 ;
Robinson v. Adams, 62 Maine 369 ; Benoist v. Murrin, 58 Mo.
307 ; Stackhouse v. Horton, 15 K J. Eq. 202.)

If the argument of the learned counsel for the residuary legatee
in this proceeding was rightly apprehended upon this branch of
the case, it was that George Merrill had no claims upon the testa-
trix's bounty, and therefore any insane delusion as to him would
not invalidate the instrument propounded.

Upon the most careful consideration which I have been able to
give the elementary treatises and decisions upon the subject, I am
not able to find any such distinction enforced or recognized. The
fact that George was next of kin of decedent, who would have
taken a share of her property in case of intestacy, and had been
informally adopted by decedent's husband and recognized by him

INSANE HATRED FOR A SON. 53

and the decedent as a son; with the declared intention that he
should succeed to their property, and the execution of decedent's
will of 1856, by which George became the sole beneficiary, seem
to me to establish a claim upon the bounty of decedent which can-
not be denied, for as next of kin, in the absence of a will, he had
a claim upon her bounty, and that claim certainly was not weak-
ened by adoption and treatment as a son, and it is too clear for
argument that if the instruments propounded are void for want of
mental capacity on the part of the decedent to execute them, then
at her death, notwithstanding the execution of them, George
became the vested owner of all her property.

Slippo.se that the decedent, after the execution of her will of
1856, had been informed by one of her other relatives that George
had died, and in the honest belief of that fact, she made a new
will, giving all her property to that relative who had thus deceived
her, would there be any doubt that George, by virtue of the former
will, had such claims upon the decedent as to entitle him to contest
the later will, and to allege that it was made under fraudulent.
representations, and therefore void, and that fact being established,
is it not manifest that it would revive the former will, and thus
vest in the contestant all his rights?

Indeed, I am inclined to the opinion that if George had been an
entire stranger to the decedent, and under an insane delusion she
had changed her will, which had given him her property, to his
disinherison, that insane delusion would avoid the latter instrument
and revive the former.

I am not able to understand why a will made by an insane person
should l»c invalidated, when it deprives a near relative of an
expected bounty, and validated, \\ lien it deprives a remote relative
of a like bounty, lot- it is the insanity which avoids the act. and if
the will clearly appears to have been executed under an insane
delusion, it would be equally void as if executed by one who was
b confirmed lunatic or utterly demented, and George, if a stranger,

COuld COntesI the will thus made, because Of his rights under the
former will.

Sec Walsh v. Ryan M Brad, i-33), where it was held thai it was

competent for a legatee under a will to oppose the proof of a

codicil, which purported to revoke his legacy given l>v the will.
In Gombaull v. Public Administrator (4 Brad. ii li « "> t , it was held

54 TESTAMENTARY INCAPACITY.

that the public administrator might intervene to contest the probate
of a will as to the personal estate, and the attorney-general as to
the realty.

I can conceive no logic which would validate a will executed as
the offspring of an insane delusion, and the only significance that
the relationship of the parties contesting, as the subject of the
insane delusion, can have, is in determining whether the will was
the offspring of the particular delusion alleged.

I am fully aware of the fact that the setting aside or rejection of
a will is the exercise of a very radical judicial prerogative, and that
it should not be exercised except upon very satisfactory proofs.
But if I am right in holding that decedent made the will and
codicil offered for probate, under a delusion as to the character and
conduct of George Merrill, and that delusion was such as the law
adjudges insane, the will and codicil must he refused probate : This
latter conclusion renders it unnecessary to consider the point raised
as to the provisions in behalf of Cardinal McCloskey, being in fact
in trust for the benefit of " religious or missionary societies or
corporations."

The instruments propounded should be refused probate because
they were executed by the decedent when laboring under an insane
delusion, the same being the direct offspring of such delusion.

Let a decree be entered accordingly.

[A person entertaining even violent dislike to another may be
actuated in so doing from a fancied and unreal cause. He may in
this respect be said to be laboring under a delusion. Yet it would
not necessarily be such a delusion as would justify his being pro-
nounced insane. Mere antipathy to those most nearly related to
testator, without just and sufficient cause, will not in itself invalidate
a will. The delusion which will invalidate a will must point to
actual unsoundness of mind. In other words, it must be an insane

delusion. 1 ]

LUCID INTERVALS.

Nichols and Freeman v. Binns.

English Court op Probate, 1858.
(1 Sw. & Tr. 239.)
This was a cause of proving in solemn form the last will and
testament of Mr. "William Wiggett Parkinson, who died on the

1 Brown v. Ward, 53 Md. 376 (392) ; Clapp v. Fullerton, 34 N. Y. 190.

LUCID INTERVALS. 55

27th of August, 1857, in the Heightam Hall Lunatic Asylum, "Nor-
wich, promoted by Nichols and Freeman, the executors named
therein. The will in question was dated the 15th day of Novem-
ber, 1851, and was signed by the deceased during his confinement
in the above-named asylum, and attested by three witnesses. Pro-
bate of the will was opposed by the defendants, H. B. Binns and
Mary Ann, his wife, who was the niece and sole next of kin of
the deceased, on the ground that at the time of its execution he
was of unsound mind.

Sir C. Cresswkll (to the jury) : The question for your decision
is, whether Mr. Parkinson, the deceased in this case, who is proved
to have been insane at times and for long periods of time during
many years, was in the enjoyment of a lucid interval when he ex-
ecuted this will.

Where a person is never shown to have been insane, the law
presumes that he is sane; but if insanity is once proved to have
been during a period of his life his normal state, it is necessary, in
order to establish the validity of any act which he may have done
during that period, to show that he was sane at the time of his
doing that act.

I have referred to the case of Cartwright v. Cartwright, 1 which
is a decision by Sir William Wynne in the Prerogative Court, and
Is one which has been frequently quoted. The testator in that
case was a lady afflicted with permanent insanity, and living under
restraint, but who was proved to have had intermissions of her
complaint; she drew up. without assistance, and in proper form, a
will in her own handwriting; she was apparently, almost at the
moment of preparing it, in considerable excitement ; for she was
Been at the time to write upon several pieces of paper and tear
them up in a wild and excited manner and throw them into the

fire; but the will in question appeared certainly to have been a

right and natural will for her to have made, and was held to be a
good will. Sir William Wynne, in his judgment in thai case, is

reported to have said : " II it can be proved thai this Is a rational
act rationally done, the whole case is proved. What can yon do
more to establish the act?" Bui this expression of the learned
Judge cannot be applied strictly to all cases. The mere fad thai

1 1 Phill. 90.

56 TESTAMENTARY INCAPACITY.

the act is rational, and done in a rational manner, is not, I think,
in itself conclusive evidence of sanity ; although in every case it
will be very strong evidence of sanity, tending greatly to satisfy
the mind of a rational person that the party so doing that act was
at the time in full possession of his senses. But after a paroxysm
of insanity has passed away, insanity may still be lurking in the
mind of the patient, although there is nothing apparent on the
surface to show it.

It was argued by counsel in opposition to this will, that although
when the deceased made it, apparently he was restored to sanity,
yet there might have still been insanity lurking within, which was
not observable ; and he told you of two or three remarkable in-
stances, the traditions of the bar in Westminster Hall, in ' one of
which a great and experienced advocate cross-examined a witness a
long time before he could discover that he was insane. He did not
do so until he touched upon the subject upon which he laboured
under a delusion. But in all those cases you will, I believe, find
that the person was labouring under an insane delusion ; and where
this is the case, unless you discover what the delusion is, and bring
the subject of his delusion under his attention, you may not dis-
cover that he is insane. This will not apply to the present case,
for there is no proof that the deceased was ever subject to any de-
lusion. Indeed, it appears according to the evidence of one gentle-
man, Mr. Nichols, who gave his evidence, I thought, very sensibly,
that the deceased's was a case of recurrent mania, and that his ex-
istence was passed under three different sets of circumstances —
raving madness ; depression, amounting to an insane state of mind ;
sanity. And Mr. "Watson said, that as his bodily health became
stronger, there was again an increased and inflammatory action of
the brain, and again he became violent ; then came another fit of
depression, and then sanity, and so on in a regular course. But in
no part of their evidence do they ever say there was anything like
a delusion by which at any period they could test whether he was
sane or not. It was therefore only by his answers to questions, his
apparent recollection of past transactions, and his reasoning justly
with regard to them, and with regard to the conduct of individuals,
that any one could judge whether he was sane or not.

1 Mr. Greenwood's case.

LUCID INTERVALS. 57

It appears that the deceased (and there is no doubt about this)
had two nieces, one (Mrs. Freeman) who had always pleased, and
the other (Mrs. Binns) who had disobliged him. Mrs. Freeman
had three children, and Mrs. Binns had one. He had made a will
in 1S39, the arrangements of which were entirely defeated by the
death of Mrs. Freeman and her brother; so that if no new will
were made, nearly the whole of his property would have gone to
the niece who had disobliged him, to the exclusion of those with
whom he had always been satisfied, and upon whom he had be-
stowed a sjreat share of his affection. It is also admitted that
when he was removed from the first lunatic asylum in which he
\\as placed, I mean Mr. Dalrymple's asylum, the house he went to
was Mr. Freeman's. He went there and remained there for nearly
four years (in the course of which he had occasional fits of in-
sanity), and during that time there does not appear to have been
any trace of friendly or kindly intercourse between him and Mr.
and Mrs. Binns.

There is no doubt that the execution of this will was a very re-
sponsible transaction ; and that a will prepared and executed in a
lunatic asylum by a man not generally in possession of his facul-
ties, ought to be regarded with great care and jealousy; but this
should not be carried too far; for a person may be in a lunatic
asylum because he is afflicted by a malady which makes it neces-
sary that he should be placed under restraint, but who at times
may he perfectly sane ; and if he was prevented from disposing of
bis property according to his wishes it would be a great hardship
upon him. I can fancy a case where such a person being con-
scious that he was labouring under a restraint, and feeling that his
property, if he did not make a disposition of it, would not go as
he thought righl and just, would be inueh alTecfcd if bethought

thai hi' could not otherwise dispose of it. We have some trace of

this kind of feeling in the present ease. Mr. Watson says: "The

deceased frequently mentioned to him his family ; ami said he

wished to make, if possible, a fresh and more even adjustment ol

his property, and thai he mentioned the death of Mr. Joseph Park-
inson, and al-o of bis 1 1 i« '•• •, Mrs. I'Yeeman, and said that in COnse

quence of their death the whole would go to Mrs. Binns, which

was n..t hi- wish or intention." Then, again, there is a remarkable

circumstance spoken to by Mr. Nichols, that this annoyed him

58 TESTAMENTARY INCAPACITY.

very much, and distressed and disturbed him, and that he was very
anxious about it; that he knew his position, —that he was in a
lunatic asylum, — and felt that there Was a difficulty about making
his will, and had asked him if it could not be done.

It is said that there is some little difference between the instruc-
tions and the will. But the will is substantially in accordance with
the instructions ; it was read over and explained to the testator,
and he was perfectly satisfied with it.

In addition to this, you have the evidence of Mr. Nichols, Mr.
AVatson, Dr. Rankin, and Mr. Mills, whose characters are high in
the profession to which they belong. Two of these gentlemen,
Mr. Nichols and Mr. Watson, tell you that in the month of August,
1851, they saw the testator in the lunatic asylum, and that they had
no doubt of his sanity at that time ; and the other two gentlemen
were called in for the purpose of ascertaining the state of his mind
in November, and although they do not recollect the questions
they put to him, — Dr. Rankin says that he was with him for about
three-quarters of an hour, and that he endeavored to test his under-
standing, — and they both say that they were perfectly satisfied of
his competency at that time.

At the conclusion of the learned Judge's charge, the jury having
retired for a few minutes, found by their verdict that the will was
made by the deceased in a lucid interval.

INSANITY.— LUCID INTERVAL.
Matter of Will of Sarah J. Macpherson.

Surrogate's Court, New York County, New York, 1889.

(20 N. Y. St. Rep. 868.)

Hansom, S. — A perusal of the testimony taken in this case must
lead any mind to the conclusion that the testatrix, for a consider-
able period before her death, was an excitable, sickly woman, who,
on slight provocation and often without apparent cause, flew into
fits of passion and displayed many symptoms of a diseased mind.
Conversation on topics connected with certain of her relatives in-
variably excited her to some outburst. No person in the enjoy-
ment of her senses would have composed the letter which appears
to have been left at the house of Judge Angell by the deceased.
Nevertheless, the unanimous testimony of the witnesses (with pos-

LUCID INTERVAL. 59

sibly the single exception of Mrs. Angell) is to the effect that, while
these manifestations of an unhealthy mind were chronic from the
date of her first illness, she was sometimes, for continued periods
of time, in the possession of her faculties.

In the light of these facts, the law as laid down in the case of
Gombault v. Public Administrator (4 Brad. 226), might be taken
as the text upon which to write a decision of this cause, viz. :
" A will made in a lucid interval may be valid ; but the facts estab-
lishing intelligent action must be shown. The nature and charac-
ter of the instrument as to its dispositions have great influence, and
it is important to ascertain whether they harmonize with the dece-
dent's affections and intentions otherwise expressed."

In the case at bar the subscribing witnesses prove the due execu-
tion of the will, and that at the time the testatrix had mental ca-
pacity to make a will. One of the subscribing witnesses was a law
clerk, and presumably familiar with the legal requisites. The will
was drawn by Mr. Rudd, after an interview with testatrix, who
called at his office for the purpose of giving instructions therefor.
Thereafter he received a note from testatrix containing substan-
tially similar directions, and the will was drawn accordingly, and
sent to her by a messenger who superintended its execution at the
house of the decedent. At this interview with Mr. Rudd he testi-
fies that she conversed rationally upon the subjects introduced.
That the will is in accord with her expressed intentions appears
by the testimony of her brother, as well as by the evidence of Mr.
Rudd.

In the case of Chambers v. Queen's Proctor (cited in Gombault
v. Public Administrator, wprcC) the decedent died by his own
hand the day after he executed the will. There had been indi-
cation- of insanity immediately before and after its execution.
The court said: "If done during a lucid interval the act will be

valid, Dotwithstanding previous and subsequent insanity," and the
will was upheld mainly od the ground of the reasonable disposi-
tions contained in the instrument, the absence of proof of delusion
■'it 'he time of the factum and the rational manner in which the
act wa~ performed.

Every incident specified in that case is rapplied here for the pur-
pose of BUpporting the will: and 1 am of opinion that the will

Bhould he admitted to probate.

60 TESTAMENTARY INCAPACITY.

LUCID INTERVAL.— BURDEN OF PROOF.

White v. Driver.

Prerogative Court op Canterbury, 1809.
(1 Phillim. 84.)

Elizabeth Manning died on the 26th of January, 1805, at the
house of Mr. Driver, at Chadwell, in Essex ; the only relations
who - survived her were two sisters and a nephew and niece, the
children of a deceased brother ; her will bore date the day imme-
diately preceding her death ; her property was bequeathed in
thirds — one-third to the nephew, another to the niece, and the re-
maining third to their mother, the widow of her brother, who
since his death had intermarried with Mr. Driver. The will pur-
ported to be signed and executed in the presence of three wit-
nesses.

The two sisters impeached the validity of this instrument on the
ground of the insanity of the testatrix.

Many witnesses were examined who deposed to the childish and
extravagant conduct of the deceased at several periods of her life,
while others testified to her apparently sane and rational condition
for a few days preceding her death.

Judgment.

Sir John Nicholl (after recapitulating the evidence) :
The evidence in this case sufficiently establishes that the deceased
had been at times subject to insanity for several years preceding
her death, and even down to the 21st of January, 1805, only four
days prior to the execution of the will in question, but it does not
appear that the disorder was uniform, or always attacked her with
an equal degree of violence. She was at large the greater part of
her life, and had the management and dominion of herself and
her actions. She seems to have had violent accessions of the dis-
order in the years 1793 and 1794, in 1801, and again in 1804.
The evidence, however, does not preclude the proof of lucid in-
tervals, although it raises a strong presumption against sanity ;
for I agree with the counsel for the next of kin that, wherever
previous insanity is proved, the burthen of proof is shifted, and it
lies on those who set up the will to adduce satisfactory proof of
sanity at the time the act was done.

LUCID INTERVAL. — BURDEX OE PROOF. 61

It is scarcely possible, indeed, to be too strongly impressed with
the great degree of caution necessary to be observed in examining
the proof of a lucid interval ; but the law recognizes acts done dur-
ing such an interval as valid, and the law must not be defeated by
any overstrained demands of the proof of the fact.

In this case the deceased had been subject not only to eccentrici-
ties, but to delusion and derangement at different periods for sev-
eral years, but it was not continuous ; she was not under confine-
ment ; she managed her own affairs ; she earned her own liveli-
hood ; when she came out of the workhouse on the 21st of Janu-
ary she acted immediately, and continued to act from that moment
till her death, as a sane and rational person. There is no indica-
tion of any fraud or circumvention in procuring this will, or even
in suggesting it to her; a desire to make a will is not with her an
insane topic; it is recommended very properly to her by the cler-
gyman who was sent for to pray by her, and the intention of mak-
ing it was first communicated by the deceased to an old acquaint-
ance of hers of the name of Turner; the utmost possible precau-
tion was used by Turner in carrying her wishes into effect, by se-
curing the attendance of an attorney, two medical gentlemen, and
the clergy man.

The deceased herself declares and directs the disposition of her
property: the disposition itself is neither insane nor unnatural ;
two-thirds are left to the children of a deceased brother, and the
remaining third to his widow and her second husband, and these
two persons are appointed her executors; her sisters, it is true, are
excluded; but they were both married, and possibly had oo great

claim- on lici-.

The Courl has the concurrent opinion' of these several persons,
viz.: Mr. Turner, the deceased's friend; Mr. Williams, the clergy-
man ; the solicitor, the two apothecaries, and the nurse; and tint,
too, with all their suspicions awakened, and their vigilant observa-
tion called forth that the deceased was perfectly sane and rational
throughoul the whole period of the transaction ; some of them also
prove thai Bhe was equally sane and rational a day or two before,
and continued so till her death on the subsequenl day.

Notwithstanding, therefore, all the jealousy which tl'" Court
should feel as to the act of a person once proved to have been in.

.sua', -till under thie evidence it is impossible not to concur with

62 TESTAMENTARY INCAPACITY.

these witnesses in opinion that the deceased was of sound mind ;
and, consequently, I am bound to pronounce for the validity of her
will.

RATIONAL ACT RATIONALLY DONE.

Dame By z an tin Clerke, heretofore Cartwriglit, and Carl-
wright v. Cartwriglit and oilier*.

Prerogative Court op Canterbury, 1793.

(1 Phillim. 90.)
Judgment.

Sir William Wynne.

The question in this cause arises upon the will of Mrs. Armyne
Cartwriglit, deceased, which has been opposed and propounded on
behalf of the contending parties.

The will is on all sides admitted to be in the handwriting of the
deceased ; and it is in these words :

« Wigmore Street, August 14, 1775. I leave all my fortune to
My nieces, the daughters of my late brother, Thomas Cartwriglit,
Esq., except £100 each to my executors, and one year's wages to
my servants and mourning. I appoint Mrs. Mary Catherine Cart-
wright, my nieces' mother, and Thomas George Skipworth, Esq.,
of JSTevvbold Revel, in Warwickshire, my executors, and trustees
for my nieces until they come of age or marry ; if any of them
should die sooner, their share to go to the survivors or survivor.

" Armyne Cartwright."

It appears to have been inclosed and sealed up in a cover; and
upon the back of the cover is written in the handwriting of the
deceased, " This is my will. A. Cartwright." The will is written
in a remarkably fair hand, and without a blot or mistake in a single
word or letter. Pleas have been given in on both sides, and there
is a pretty full account of the family and connections of the de-
ceased, and her affections, and I think it clearly appears the will is
as proper and natural as she could have made, and it is likewise as
conformable to her affections at the time. [Here follows a state-
ment of facts concerning various relatives of testatrix and her rela-
tions with them ; and discussion of a point of evidence.]

The only witness, then, that has given any kind of account of the
writing of the will is Charity Thorn, who was present at the time ;

RATIONAL ACT RATIONALLY DONE. 63

there was another witness of the name of Gore, but she is dead ;
therefore Charity Thom is the only person who can give any
account of what passed ; and the account she gives is extremely
material ; for I cannot agree with what was said by Dr. Nicholl,
that this will relies entirely upon the face of the will itself, and
upon the evidence of Mrs. Cottrell, and the proof of handwriting,
for its support. I think the evidence of Charity Thom goes very
materially to support it ; her evidence is in these words ; she says
to the loth and 16th articles of the first allegation, " That whilst the
said Dr. Battie visited and attended the said deceased, he desired the
nurse and the deponent and her other servants to prevent her from
reading or writing, as he gave it as his opinion that reading and
writing might disturb and hurt her head; and in consequence
thereof she, the said deceased, was for some time kept from the use
of books, pens, ink, and paper ; that, however, some time prior to
the writing the will in question in this cause, but precisely as to
time the deponent cannot speak, she, the said deceased, grew very
importunate for the use of pen, ink, and paper, and frequently asked
for it in a very clamorous manner; that Dr. Battie endeavored to
dissuade and pacify her, and told her that whatever she wrote he
must appear as a witness against, but that if she would wait till she
got well he would be a witness for her ; that the said deceased con-
tinuing importunate in her desire to have pen, ink, and paper, the
said Dr. Battie in order to quiet and gratify her consented that she
should have them, telling the deponent and Elizabeth Gore, the
nurse, that it did not signify what she might write, as she was not
fit to make any proper use of pen, ink. and paper; that as soon as
Dr. Battie had given his permission that she should have pen, ink,
and paper, the same were carried to her ; and her hands, which had

been \'<>r some time before kept constantly tied, were let loose, and
she, the said deceased, sat down at her bureau and desired this de-
ponent and the nurse to leave her alone while Bhe wrote, and they,
to humour her, went into the adjoining room, hut stood by the door
thereof bo i- they could watch and see the said deceased as well as
if they had been in the Bame room with her ; thai the said deceased

at firs! wrote upon several piece- of | >a | »er. am 1 got lip in B wild and

furions manner and tore the same, and went to the lire). lace and
threw the pieces in the grate, one after the other; and after walk
ing up and down the room many times in a wild and disordered

64 TESTAMENTARY INCAPACITY.

manner, muttering or speaking to herself, she wrote, as the de-
ponent believes, the paper which is the will in question ; but the
deponent further saith that at the time now deposed to the said de-
ceased had not shewn any symptoms whatever of recovery from her
disorder, and in the deponent's opinion she had not then sufficient
capacity to be able to comprehend or recollect the state of herself, her
family, or her affairs, and during the time she was occupied in writ
ing, which was upwards of an hour, she, by her manners and gest-
ures, shewed many signs of a disordered mind and insanity." She
says to the 25th interrogatory, " that the deceased was occupied up-
wards of an hour, nearly two hours as well as the deponent can at
this distance of time recollect, in making the will in question ; that
is, from the time of the pen, ink, and paper being given her, until
she left off writing ; that the respondent and Elizabeth Gore, the
nurse, went out of the room into the adjoining room, and left the
said deceased alone in the room, but not out of their sight ; that she
said she was going to write, but the respondent does not recollect
whether she said she was going to make her will, but the respond-
ent understood that she was writing a will ; that when the said de-
ceased was left in the room by herself she was so agitated and furi-
ous that the respondent was very fearful she would attempt some
mischief to herself, but she did not do any ; that a candle was given
to the said deceased to seal what she had written, but the respond-
ent cannot recollect what length of time the candle was by her ;
that the respondent and also the nurse were always cautious of
trusting a caudle near the said deceased, but on this occasion they
did permit her to have a candle notwithstanding she shewed many
marks of derangement and insanity at the time, this respondent and
the nurse being at hand and watching her to prevent any mischief ;
that the "said deceased seemed very earnest in what she was about,
but by no means closely settled, as whilst she was writing she fre-
quently started up and walked up and down the room in an agi-
tated manner ; that it was not customary to untie the said deceased's
hands, or to leave her alone when she desired it, at times when she
w r as greatly agitated and disordered, although sometimes in conse-
quence of her earnest intreaties the respondent and the nurse would
untie her for a little, and on the occasion now particularly deposed
to she was so untied in consequence of the permission which Dr.
.Battie had given her to have pen, ink, and paper, but she was not

RATIONAL ACT RATIONALLY DONE. 65

\eit alone, as the deponent and the nurse stood at the door of an
adjoining room behind the said deceased, but not above two or
three yards distant from the bureau where she sat to write."

The fact then, as it appears by the evidence of this witness, is,
that the paper was written by the testatrix herself, no other person
being present but the witness who gives the account and Elizabeth
Gore, who is since dead, neither of whom gave her any manner of
assistance ; and she tells you, that the deceased having first of all
shewn great eagerness and anxiety for pen, ink, and paper, did
write this will the moment she obtained them without any assist-
ance from any one ; but it is said that the condition of the deceased
at this time was such that she was utterly incapable of doing that
or any other legal act, because it must be rational. They have
certainly completely proved that the deceased was early afflicted
with the disorder of her mind, I think about the year 1759, and
she continued under the influence of that disorder pretty near two
years, and after that she returned to her father's house being sup-
posed to be perfectly recovered, and that she continued to reside
there from that time to his death ; that after that being in posses-
sion of her fortune she went about the year 1768 to housekeeping
herself, and continued so to do as a rational person till 1774, and
in the month of November in that year she went on a visit to her
relation, Lord Macclesfield, at Shirburn in Oxfordshire; that on
the 26th of November she returned to London in a disordered and
disturbed state; at first she was attended by a physician. Dr.
Fothergill, who found it was a disorder of the mind, and what he
had Dot directed his attention or study to. Itisproved that in the
latter end of January or beginning of February, 1775, Dr. Battie
was Called in, and he treated her as an insane person, and sent a

□arse to take care of her in the way they always do send nurses to

patients disordered in mind. In general her habit and condition
of body and her manner tor several months before the date of the

will was that of a person afflicted wit 1 1 many of the worst symptoms

"I thai dreadful disorder, and continued so certainly after making
the will, which Was the I If h of August, I 77">. They have <-,rlainlv

made oul that Now whal is the legal effect of such proof as $n's?

Certainly not wholly to incapacitate such a person, and to sa\ \

person who is proved to be in rach a way was totally and neces-
sarily incapacitated from makings legal will. I take it the rule of

66 TESTAMENTARY INCAPACITY.

the law of England is the rule of the civil law as laid down in the
second book of the Institutes, 1 "furiosi autem si per id tempus
fecerint testamentum quo furor corum intermissus est, jure testati
esse videntur." There is no kind of doubt of it, and it has been
admitted that is the principle. If you can establish that the party
afflicted habitually by a malady of the mind has intermissions, and
if there was an intermission of the disorder at the time of the act,
that being proved is sufficient, and the general habitual insanity
will not affect it ; but the effect of it is this, it inverts the order of
proof and of presumption, for, until proof of habitual insanity is
made, the presumption is that the party agent like all human
creatures was rational ; but where an habitual insanity in the mind
of the person who does the act is established, there the party who
would take advantage of the fact of an interval of reason must
prove it ; that is the law ; so that in all these cases the question is
whether, admitting habitual insanity, there was a lucid interval or
not to do the act. Now I think the strongest and best proof that
can arise as to a lucid interval is that which arises from the act
itself ; that I look upon as the thing to be first examined, and if it
can be proved and established that it is a rational act rationally
done the whole case is proved. 2 What can you do more to estab-
lish the act? because, suppose you are able to shew the party did
that which appears to be a rational act, rmd it is his own act entirely,
nothing is left to presumption in order to prove a lucid interval.
Here is a rational act rationally done. In my apprehension,
where you are able completely to establish that, the law does not
require you to go further, and the citation from Swinburne does
state it to be so. The manner he has laid down is (it is in the 8

1 Instit., lib. 2, tit. 12, sec. 2.

- Sir William Wynne, who laid down the rule in Cartwright v. Cartwright,
did in fact look into all the grounds and circumstances to see how far the act
was the residt of the deceased's own will and intention. " That Sir William
Wynne did not consider every rational act rationally performed as sufficient to
prove a lucid interval, we may collect from what is stated in a subsequent part
of his judgment, in which he refers to cases where testamentary acts of a
rational character were set aside. So that it is not every rational act rationally
done, which, under all circumstances, is sufficient to constitute a lucid interval;
if was the particidar manner in which the act was done in that case which led
Sir William Wynne to the conclusion that there was a lucid interval." ....
— Chambers v. Queen's Proctor, 2 Curt. 415 (447).

3 Swinburne, Part, ii., sec. 3

RATIONAL ACT RATIONALLY DONE. 6?

part in which he treats of what persons may make a will), says he,
the last observation is, " If a lunatic person, or one that is beside
himself at some times but not continually, make his testament, and
it is not known whether the same were made while he was of
sound mind and memory or no, then, in case the testament be so
conceived as thereby no argument of phrensy or folly can be gath-
ered, it is to be presumed that the same was made during the time
of his calm and clear intermissions, and so the testament shall be
adjudged good, yea although it cannot be proved that the testator
useth to have any clear and quiet intermissions at all, yet never-
theless I suppose that if the testament be wisely and orderly framed
the same ought to be accepted for a lawful testament/' Unques-
tionably there must be a complete and absolute proof the party
who had so formed it did it without any assistance. If the fact be
so that he has done as rational an act as can be without any assist-
ance from another person, what there is more to be proved I don't
know, anless the gentlemen could prove by any authority or law
what the length of the lucid interval is to be, whether an hour, a
day, or a month ; I know no such law as that ; all that is wanting
is that it should be of sufficient length to do the rational act
intended ; I look upon it if you are able to establish the fact that
the act done is perfectly proper, and that the party who is alleged
to have done it was free from the disorder at the time, that is com-
pletely sufficient. What dor- appeal- to be the case from the
evidence of the-e witnesses? As to Charity Thom, who seems to
me to he the principal witness, she gives an opinion of her own,
and that opinion is againsl the validity of the act, and she expressly
over and over that the deceased at the time this was done was

not -anr and was not capable of knowing what she did ; that is the

I'* -nit of her evidence. The( !ourt, however, docs not depend upon
the opinion of witnesses, bul upon the facts to which they depose.
All the facta which arc deposed to (it docs appear to me) are sane ;
the witness's opinion arising from her observations doe- not give
any foundation at all for saying the testatrix was insane at the time

o| making the will ; her opinion that the deceased was insane at

Buch time was founded on bodily affections which were extraneous.
What is the fact iys thai the deceased whilsl employed about

the act rose frequently and walked backwards and forwards about
the room, that she did not set down closely to the business, that she

68 TESTAMENTARY INCAPACITY.

started up, and that she tore several papers and threw the pieces
into the grate, then wrote others, and did not appear to her to act
in such a way as a person who was calm would do. In my appre-
hension, it appears from this account her manner of doing it was
this : she wrote several papers, and if she saw any mistake what-
ever trifling she was dissatisfied and probably vexed she did not
write in such a way as fairly to answer her own intention ; the
paper itself has no mark of irritation ; a more steady performance
I never saw in my life ; and it seems hardly consistent that a person
wild and furious and in such a degree of insanity as she is stated to
be should write in such a way. It seems to me a very extraordinary
thing, but whatever outward appearance there was it had no effect
on the writing itself ; she has wrote it without a single mistake or
blot or anything like it. What is the construction ? that she was
endeavoring to write her will, which she had taken a determination
to do ; that she made mistakes and destroyed those papers in which
she had made them, that she knew how to correct them, and did
correct them, and at length wrote and finished as complete a paper as
any person in England could have done. Is this insanity ? In my
apprehension, it is not ; it seems to me she was vexed at her mis-
takes, which I think shews that she had at that time her senses
about her, and I think it appears likewise she was not then in fact
in the disturbed condition she was before and after. They say
they were generally forced to keep the strait waistcoat upon her,
that even then she would thrust out her arms if she could, and
strive to thrust her fingers in their eyes, and in short do every
thing that would do mischief. Is there any mischief in the present
case when the strait waistcoat is taken off ? Nothing like it ; a$
soon as it is taken off she says, " Give me pen, ink, and paper "j
and when it is given her she says, " Leave me, for I am going td
write "; and they go out of the room ; she is not disturbed at their
watching her, but pursues her own intention and completes the
paper ; she enquires the day of the month, and an almanack ia
given to her by one of the nurses who was watching her, and the
day of the month was pointed out to her ; she then calls for a
candle ; and they say they used to be cautious not to trust her with
a candle, and were forced to hold it at a distance from her if she
read the newspaper ; but still in this case they give her a candle
that she may use it in order to seal the paper ; no harm was done

RATIONAL ACT RATIONALLY DONE. 09

of any kind, and none attempted ; everything that was done was
for the purpose of completing the act ; and am I to conclude she
was insane, because she might have bodily affections, irritations of
nerves, when everything which was rational is done, and as collect-
edly and as exactly as any person of the clearest sense would have
done, and of her own head entirely. The gentlemen have said all
this is mere form. Is it mere form that a person so situated as
she was should of her own accord write a will containing the most
rational disposition of her property, leaving all her fortune to her
nieces, the daughters of her deceased brother who were the most
natural to her, omitting her nephew who was possessed of a large
fortune? Is it mere form that she should appoint for her execu-
tors and trustees the mother of those nieces, and her nearest rela-
tion by the father's side, describing accurately the place where he
lived, and that she should create a survivorship amongst them if
any should die before twenty-one? Is this only form? It is the
very essential part and substance of a will, and that will as rational
a will a> she or any other person could have made. Therefore,
taking the fact to be that it was done of her own accord, it leaves
nothing to be proved; that being established puts the matter
beyond all possibility of doubt, and I think there can be no ques-
tion but that she had a legal capacity ; but, say they, we can hardly
admit this is quite such a paper as it appears, and that it is the
mere spontaneous act of the testatrix herself; they surmise, and to
be >un- it is as groundless asurmise in point of evidence as possible,
that it was done at the suggestion of Mrs. Cottrell, but it appears
that she was at that time out of town and had been so for a month
before : but ie the ( lourt to suppose that without evidence, and is

there anything to support it \ certainly not, and I cannot presume

any BUCh thing. If you have a mind to prove this was by the

suggestion of Mr~. Cottrell, you may; if you do not, 1 musl take

it to he, what appears from the evidence, the pure and spontaneous
ad of the party herself, and that Mrs. Cottrell knew nothing of it

till she was informed of it. [Sir William Wynne here examines

further evidence which he finds conclusive in showing that testatrix
bad frequenl lucid intervals besides the one in question, lie also

tate and examine- the cases of A.ttorney-General v. Parnther, 1

1 S... :{ Brown (\ < '. 441.

70 TESTAMENTARY INCAPACITY.

Clarke v. Lear, 1 Coglilan v. Coghlan, and Greenwood v. Green-
wood, and then proceeds as follows :]

I am of opinion in this case that the deceased by herself writing
the will now before the Court hath most plainly shewn she had a
full and complete capacity to understand what was the state of her
affairs and her relations, and to give what was proper in the way
she has done. She not only formed the plan, but pursued and
carried it into execution with propriety and without assistance. In
my apprehension that would have been alone sufficient, but it is
further affirmed by the recognition and the delivery of the will.
Therefore, under all these circumstances I have no doubt in pro-
nouncing this to be the legal will of the deceased.

INSANITY PROVED.— WHEN PRESUMED TO CONTINUE.

Sarepta Hix v. Isaac Wliittemore.

Massachusetts Supreme Judicial Court, 1842.
(4 Met. 545.)

Writ or Error to reverse a judgment recovered by the de-
fendant in error against the plaintiff in error, at the December
term, 1837, of the Court of Common Pleas. The original writ
against the plaintiff in error was served on the 20th of Novem-
ber, 1837, by leaving a summons at her last and usual place of
abode in Athol. The error assigned was, that at the time of the
service of the said original writ, and at the time of the rendition
of said judgment, the plaintiff in error was insane. Issue to the
country.

At the trial the insanity of the plaintiff in error, in the spring
of 1837, either resulting from or connected with a violent dis-
ease, was both proved and admitted. Evidence was offered by the
defendant in error tending to prove that she (the plaintiff in error)
recovered her reason during the following summer, and continued
sane till she was carried to the house of correction in Worcester,
on the 10th of November, 1837 ; and evidence was offered by the
plaintiff in error, tending to prove that she continued insane dur-
ing that period.

1 See ante, p. 23.

INSANITY PROVED. — WHEN PRESUMED TO CONTINUE. 71

The jury were instructed " that the insanity of the plaintiff in
error, in the spring of 1837, being proved and admitted, the bur-
den of proof was on the defendant in error to show that she had
60 perfectly recovered her mind as to be the proper subject of a
suit at the time of the service of the original writ upon her ; and
that if the jury were satisfied that she had recovered her mind
during the summer or autumn of 1837, the burden of proof was
then shifted upon her to show the insanity at the time of the ser-
vice of the writ and the rendition of the judgment in the original
action."

The jury returned a verdict for the plaintiff in error, and the
defendant in error alleged exceptions to the said intructions.

Dewey, J. — Every man being presumed to be sane, till the con-
trary is shown, the burden of proof certainly rests, in the first
instance, on the party alleging the insanity. 1 How far this burden
is changed by the mere fact of proof of insanity at a particular
period is the precise point of the present inquiry.

The general expressions in some of the books that treat of the
subject are certainly broad enough to warrant the instructions
given in the present case. See 3 Stark, Ev. 1709 ; Greenleaf on
Ev., sec. 42; Mathews on Presump. Ev. (Amer. ed.) 20, 21. But
a careful analysis of the principles upon which presumptions are
allowed to have force and effect, will show that the proof of the
insanity of an individual, at a particular period, does not neces-
sarily authorize the inference <»f his insanity at a remote subse-
quent period, or even several mouths later.

The force of presumptions arises from our observation and ex-
perience of the mutual connection between the facts shown to
exist and those Bought to he established by inference from those
facts. Now neither observation nor experience shows us that per-
sons who are Insane from the effect of .some violent disease, do not

Usually recover the right use of their mental faculties. Such eases

are not unusual, and the return of a sound mind may be antici-
pated from the subsiding or removal of the disease which has

prostrated their minds. It is not, therefore, to he Btated as an un-
qualified maxim of the law, "once insane, presumed to he always
insane"; bul reference must be had to the peculiar circumstam

Fox :i divergence "i authority on tin point, Bee index, " Burden of Proof."

72 TESTAMENTARY INCAPACITY.

connected with the insanity of an individual, in deciding upon its
effect upon the burden of proof, or how far it may authorize the
jury to infer that the same condition or state of mind attaches to
the individual at a later period.

There must be kept in view the distinction between the infer-
ences to be drawn from proof of an habitual or apparently con-
firmed insanity and that which may be only temporary. The ex-
istence of the former, once established, would require proof from
the other party to show a restoration or recovery ; and, in the ab-
sence of such evidence, insanity would be presumed to continue.
But if the proof only shows a case of insanity directly connected
with some violent disease, with which the individual is attacked,
the party alleging the insanity must bring his proof of continued
insanity to that point of time which bears directly upon the subject
in controversy, and not content himself merely with proof of in-
sanity at an earlier period.

Such we take to be the rule, as founded in reason and sanctioned
by the decided cases. Thus in Cartwright v. Cartwright (1 Phillim.
100), it was held that " where habitual insanity in the mind of a
person is established, there the party who would take advantage of
the fact of an interval of reason must prove it," taking the distinc-
tion which we have mentioned ; 1 Williams on Executors, 17, 18 ;
Swinburne, in his Treatise on Wills, Part II., sec. 3, states the
general presumption of law, that a testator, who is proved to have
been void of the use of reason and understanding, continues in the
same state. But, among other exceptions to this rule, he mentions
the case of a testator's falling " into some frenzy, upon some acci-
dental cause which is afterwards taken away." And this exception
is recognized in 1 Collinson on Lunacy, 55, and Shelford on Luna-
tics, 275. Lord Hale says accidental madness proceeds sometimes
from the violence of a disease. 1 Hale P. C. 30.

New trial granted.

DRUNKENNESS.— WHAT PRESUMPTION OP INCAPACITY.
Ayrey and others v. Hill.

Prekogative Court of Canterbury, 1824.
(2 Add. 206.)
The deceased, Peter Hurman, otherwise Efford, died on the 5th
of August, 1821, leaving a will bearing date 25th of June in that

DRUNKENNESS. — WHAT PRESUMPTION OF INCAPACITY. 73

year, the validity of which is the point in issue. It makes con-
siderable provision for the family of Mr. Pike, one of the execu-
tors, devises and bequeaths a freehold estate for life, together with
the residue of the testator's personalty for life, to Lucy Hill, his
niece and sole surviving next of kin, and bequeaths certain other
sums to her husband if he survive her, and to charity, and makes
provision for three executors. The personalty bequeathed by
this will is stated to amount in value to about £5,000, and the
realty devised to between £5,000 and £10,000.

Judgment.

Sir John Nicholl (after stating the facts). — This instrument,
such as I have described it, is propounded by the executors, and is
opposed by Lucy Hill, the testator's niece, and only known rela-
tion ; her alleged ground of opposition being, in a word, the as-
serted testator's incapacity. Her allegation, responsive to a con-
didit, pleads, generally, in the third article, that the deceased had
long been subject to mental derangement, more particularly from
about the middle of the year 1817; of which it furnishes a variety
of (supposed) instances in the fifteen succeeding articles ; summing
up the whole by pleading, in the nineteenth article, that the de-
eea led was not of testamentary capacity on the 25th day of June,
1821, but that he was in the custody, and under the control, of the
executors (one or all) at that time, upon whose sole suggestion the
will in question was, de facto, made and signed by the deceased.
To this it is answered, on the part of the executors, that the de-
ceased was never insane ; for that he conducted himself rationally
at all times, when not under the excitement produced by spirituous
liquors, to the moderate use of which, it may be stated, once for
all, as an admitted fact in the cause, that the deceased had been
addicted \\,v a number of years.

Now this being, in Bubstance, the case on both sides, it appears
to me that the testimony of Mrs. Hill's own witnesses fails to
make out a ca-e of (proper) insanity, or mental derangement.

They Bpeafa tO the deceased's extravagant conduct, indeed, in a

variety of instances; but they admit him in, at least, by far the
greater part of these, to have been intoxicated at the time; when
it does -'■cm that he not only talked wildly and incoherently, but
that he acted, and conducted himself, in all respects, very like a

74 TESTAMENTARY INCAPACITY.

madman. Even Fagg, the witness who deposes most strongly in
this particular, concludes by stating the deceased, in her apprehen-
sion, "a mad drunken fool" \ obviously connecting, as appears by
this phrase, in her view of the case, his supposed insanity, with his
admitted habits of gross intoxication. On the contrary, however,
it is pleaded, and proved, that the deceased at no time was under
any control as to the management of his person or property ; that
he -received rents ; made payments ; transferred stock ; drew
drafts ; settled accounts ; bought and sold property ; in a word,
that he was perfectly sui juris to the last, with respect to the con-
duct both of himself and his affairs, in all particulars.

The testator's case then appears to the Court to be that of a
person not {properly) insane or deranged ; but to be that of a per-
son addicted to a species of ebriety, which, during its subsist-
ence, frequently produces, and is proved, in the present instance,
to have actually produced, upon the subject of it, effects very
similar to those which insanity, or mental derangement (properly
so called) would, or might, have occasioned. In other words, the
deceased appears to the Court, not in the light of a madman, but
in that of a person habitually addicted to the use of spirituous
liquors, under the actual excitement of which he talked and acted,
in most respects, very like a madman.

Now, viewed as with reference to the point at issue, the cases in
question, notwithstanding their apparent similarity, are subject, in
my judgment, to very different considerations. Where actual
(proper) insanity is proved to have once shewn itself, either per-
fect recovery, or, at least, a lucid interval at the time of the making,
must be clearly proved, to entitle any alleged testamentary instru-
ment to be pronounced for as a valid will. Either of these, how-
ever, the last especially, is highly difficult of proof, for the follow-
ing reason : Insanity will often be, though latent ; so that a per-
son may, in effect, be completely mad or insane, however, on some
subjects, and in some parts of his conduct, apparently, rational.
But the effects of drunkenness or ebriety only subsist, whilst the
cause, the excitement, visibly lasts : there can scarcely be such a
thing as latent ebriety : so that the case of a person in a state of
incapacity from mere drunkenness or ebriety, and yet capable, to
all outward appearance, can hardly be supposed. Consequently,
in the last, which, in my judgment, is this, description of case, all

DRUNKENNESS. — WHAT PRESUMPTION OF INCAPACITY. 75

which requires to be shewn is the absence of the excitement at the
time of the act done ; at least, the absence of the excitement in
any such degree as would vitiate the act done ; for I suppose it
will readily be conceded that, under a mere slight degree of that
excitement, the memory and understanding may be, in substance,
as correct as in the total absence of any exciting cause. Whether,
where the excitement in some degree is proved to have actually
subsisted at the time of the act done, it did or did not subsist in
the requisite degree to vitiate the act done, must depend, in each
case, upon a due consideration of all the circumstances of that case
itself, in particular ; it belonging to a description of cases that ad-
mits of no more definite rule, applicable to the determination of
them, than the one now suggested, that I am aware of.

In this view of the question before the Court, it must be ob-
vious, that the result will depend upon the deceased's state and
condition at the time (to be collected, principally, from what
passed at the time) of his giving instructions for, and signing, the
instrument now propounded as, and for, his last will. But pre-
vious to considering this, it may not be improper that the Court
should briefly notice one or two outlying circumstances.

[Here Sir John Nicholl examines the provisions of the will in
the light of the testimony, and finds them in fact reasonable and
prudent. He also finds that the due execution of the will is satis-
factorily shown, and that there was no undue influence; on the
point of intoxication at the very time of making the will, one of
the witnesses testified that testator sipped whiskey while thus en-
gaged; that he spoke inarticulately; that Mr. Ayrey, who was
present, said at the time, " I think he is tipsy," or " I think he i-
drunk "; and that ho himself " thought that the deceased was then,
to a certain extent, affected by drinking spirituous liquors," though
I,., believed him to have testamentary capacity. The Judge finds
no sufficient proof of incapacity iVoin drunkenness.] It appears to
mo to he the will of a free and capable testator ; and, as such, L

pronounce tor it.

76 TESTAMENTARY INCAPACITY.

BELIEF IN WITCHES.
Matter of Vedder.

Surrogate's Court, Albany County, New York, 1888.

(6 Dem. 92.)

Application for probate of a paper purporting to be the last will
of Eliza Ann Vedder, who died January 19, 1887, at the age of
seventy-seven years, by which nearly all the property of the dece-
dent was devised and bequeathed to her husband, the proponent
here. The nephews and nieces of decedent oppose the probate on
the ground, among others, that the testatrix was not of sound mind,
memory, and understanding. There was no issue of the marriage.
The will in question was executed in August, 1883, at the house of
decedent and proponent. At the same time and place, Mr. Ved-
der, the proponent, made and executed a will, whereby he gave all
his property to his wife, the testatrix here. Among the principal
facts proved by the contestants, were the following: That the
testatrix was very old and in a gradually failing physical condition ;
that she put irons in the cream, and marked the bottom of the churn
with the sign of the cross, to make the butter come ; that she said
she could not keep her horses fat because the witches rode them at
nisrht : that she believed in witches and witchcraft : that she told a
neighbor that she had seen a headless horseman riding across her
field ; that she told another neighbor that her crying child was be-
witched, and that if she would search its pillow she would find a
hard bunch of feathers therein, which was the witch, and that she
should boil this bunch at night in a pot, and that at midnight she
would hear some one knock,— that she should not answer, and in
the morning the body of the witch would be found outside the
door ; that she told a certain woman to put live coals and a red
garter under her churn, and that the butter would come ; that, once
upon a time, she took her nephew (a contestant) to dig for gold on
her farm, and had him carry a red rooster under his arm for good
luck, and that they dug, and got no gold ; that she said she desired
to be robed like the angels when she died ; that all these strange
things were said and done by her during the last quarter of a cen-
tury of her life ; and the witnesses who testify of these things be-
lieved she was irrational because of them, although some of them
said that in her ordinary affairs she was not a foolish woman.

BELIEF IN WITCHES. 77

On the other hand, the proponent proved that, in the perform-
ance of her household duties and farm business, the testatrix was a
prudent, sensible woman ; that she kept her house neat and clean ;
that, within a few years before her death, she was a party to an
agreement to let the farm on shares, and that she gave wise direc-
tions as to how it should be worked ; that she was a life-long mem-
ber of the Eeformed Dutch Church in her neighborhood, and at-
tended services regularly until the last two or three years of her
life, when she was disabled by rheumatism and other bodily in-
firmity ; that she frequently read her Bible and prayed with her
pastor ; that her married life was happy and peaceful, and that re-
spectful and affectionate relations existed between her husband and
herself; that a belief in visions was a part of her religious faith ;
that she had an intense way of expressing her religious experience ;
that many of her expressions were borrowed from the Bible ; that
she accepted the sacred Scriptures as the inspired word of God ; that
she believed in their inspiration as declared in the creed of the Ee-
formed Dutch Church ; and the witnesses who testified to these
things believed her to have been rational. The subscribing wit-
nesses were clear and emphatic in their belief and opinion that the
testatrix was of sound mind and memory when she executed the will.
Woods, S. (after stating the foregoing and many other facts of
similar tenor).— There is no evidence whatever to show that any or
all of these beliefs, delusions, eccentricities, or peculiarities had the
slightest connection with, or influence upon, her testamentary act
here in question. [Here follows a discussion of the weight of cer-
tain expert testi ay, of the New York rule of testamentary capac-
ity, and of numerous authorities, and of the reasonableness of the
will in question. ( kracerning the belief of the testatrix in witches,
the Surrogate thru says :] .

Be ireely two centuries ago the great body of Christians believed
in witchcraft, and, under the Bolemn sanction of the law, hundreds
of poor old ladies, condemned as witches, were tortured and died
amidst the blazing fegots. It is said that during the Long Parlia-
ment hundreds were even thus put todeatb in England. The lurid
light of these judicial fires is spread on the pages of A.merican his-
tory. Commanding intellects- Coke, the mighty Bacon, wise Sir
Matthew Bale, Martin Luther, John Wesley, Cotton Mather— be-
lieved in witchcraft.

78 TESTAMENTARY INCAPACITY.

Profound theologians contended that a disbelief in it was rank
heresy, and they cited Scripture to their purpose : " Thou shalt not
suffer a witch to live " (Exodus xxii. 18). [Other references to the
Bible are here given.]

The Bible was the book of books to the aged testatrix. Its les-
sons had sunk deep in her heart, its language was often on her lips,
it was to her the precious fountain of God's inspiration. It is not
passing strange that the ancient belief in witchcraft survived in her,
and found expression and action as has been recorded. I am per-
suaded that her beliefs, peculiar and strange in many respects, in
the clearer light of to-day, did not disqualify her from disposing of
her property by will, and I accordingly hold that she was compos
mentis, and that the paper propounded as her will should be en-
titled to probate.

INSANE DELUSIONS AFFECTING WILL.
Matter of Lockwood.

Surrogate's Court, Albany County, New York, 1889.
(28 N. Y. St. Rep. 164.)

Woods, S. — Seley Lockwood died at South Westerlo on the
20th of October, 1888, aged seventy-two years. On the 16th of
February, 1880, he executed the proposed will, with the formali-
ties required by law, in the presence of two witnesses who had seen
him only a few times and knew very little of him or his antece-
dents. His estate consisted of personal property only, deposited in
savings banks, and which had been so kept for many years. A
considerable portion of it was in the National Savings Bank at
Albany, and the other books of his bank deposits were left thereat
by him for safe keeping. Mr. Stephens, the executor named in
the proposed will, is the secretary of that bank.

In the will Mr. Lockwood bequeathed one-half of his property
to the State Lunatic Asylum at Utica, and the other half to the
orphan asylum at Albany, and he inserted therein a provision to
this effect : " I give and bequeath to my executor, Albert P. Ste-
phens, of Albany city, a sum from my estate up as high as one-
quarter, large enough to be over and above any bribe that may be
offered by my brothers, sisters, and children for the redemption of
this will and their heirship to my estate."

INSANE DELUSIONS AFFECTING WILL. 79

This will is a holograph, entirely in decedent's handwriting, but
as he had executed another will in the presence of one of the sub-
scribing witnesses to this one but a short time before, and had had
one drawn about that time by a Mr. Robbins, the contents of which
do not appear, it may have been copied therefrom.

Decedent had resided most of his life in the neighborhood
where he died. He once went South, but to what point does not
appear. At another time he went West, near Kansas City, and at
another time, from January 10 to October 9, 1849, when about
thirty-three years of age, he was an inmate of the insane asylum at
Utica, having been taken there by his brother George, and by one
Henry Myers, who is now dead. On the 9th day of October, 1819,
he left the asylum in company with his brother "improved." It
dues Dot appear that heever entirely recovered, and I think it quite
evident that he never did.

lb- inherited about $7,000 or $8,000 from his father and a sis-
ter, and at the time of his death lie had over $23,000 on deposit in
the savings banks. He was a very close, penurious man. lie
made .-harp bargains, wore poor clothing which he made himself,
and it is said that he usually wore about three suits of clothes at
..Me time. He boarded about among his relatives, paying twenty
shillings a week for his keeping, for which he always took receipts
which he himself made out.

It appears that his brothers and sisters joined with him in deeds
of land which they inherited with him, he receiving the agreed
consideration, ami the money which he inherited was paid directly
to him. It does not appear to have been claimed that he was de-
ranged is to his mere pecuniary transactions. He was evidently
quite sane, methodical, and sensible upon such matters. But I do
not aee how such transactions reflecl upon his peculiarities and de-
lusions upon entirely different subjects. His usual business trans-
action-, afl BhoWD upon the trial, were brief, simple, and all oi a

similar character; inquiries as to dep >»i t of money, deposits there

of. occasionally changing the deposits and receipt- of inter.-:). It
appeal-- that he invented -oine money in a >a\ings bank at kan>as
City which failed, an. I after his return home Mr. Stephen,-, of the

National Savings Bank, collected one or more dividends for him
from the receiver of the broken bank.
The peculiarities and delusions of the decedent were numerous

SO TESTAMENTARY INCAPACITY.

and striking. He took borax " to weld up his inwards "; lie re-
fused to take food until others had taken of it, for fear it had been
poisoned and would kill him ; he asserted that chloroform angels
had saturated his bed clothing to kill him ; that his relatives and
Indians were endeavoring to shoot him ; he usually put a quan-
tity of salt into his tea to destroy the poison which he claimed had
been put therein to kill him ; he made ginger tea, and if bubbles
arose in the boiling of it, he threw it away, because he said the
bubbles showed it was poisoned ; that he had been accustomed to
drink milk, and suddenly refused to nse any more, stating that
that offered to him had been poisoned, and that milk was an arti-
cle which could be easily poisoned ; he said that his relatives with
whom he was boarding intended killing him with an axe-helve
which was being polished, and also with a horse file ; though the
plates from which he ate were clean, he usually blew on them to
throw off the poison which he supposed had been placed thereon
for him to take ; he refused to drink tea which he did not see
poured out, though the tea had been prepared by his own sister ;
he busied himself for hours, sometimes for half a day at a time,
under the floor of his house sticking an old bayonet into the earth,
killing " devils," as he said ; he claimed that a drain from the
house had been dug for a grave for him, and that his relatives in-
tended to kill him and to bury him in it ; for half a day at a time
he dug holes about two feet deep in the earth around the house,
pouring water therein to drown out the devils, and when the ex-
istence of the devils was questioned by the hired man of his father,
he flew into a rage and threatened to kill him ; he usually carried
a pistol for the purpose of protecting himself from his enemies ;
he frequently declared that his relatives were banded together to
kill him and thus obtain his property, and that this was revealed
to him by the birds at night ; he asserted that while in the South
he built a house without windows or doors, sliding a board back to
get in and then replacing it ; that he built it thus so that the
"gang" could not get in ; he said that he invented the first steam-
boat and the first engine that was ever built ; he would sit in a
rocking-chair and rock violently, alternately laughing and crying,
with his hands spread over his face " peeking " through his fingers ;
he said he saw a man coming out of the cellar of his brother Ami-
el's house, when he was stopping there, to kill him for his money ;

INSANE DELUSIONS AFFECTING WILL. 81

and that his brother's wife was the worst of them ; he frequently
cleaned out the wash-dish after it had been cleansed, claiming that
it had been poisoned. Tbere were numerous other acts and things
of a similar character, but those hereinbefore enumerated are suffi-
cient to show decedent's condition of mind.

Though displaying the usual intelligence of people of his condi-
tion in life relative to business transactions, I am satisfied that at
the time of going through the formalities of executing this will,
and for many years previous, decedent was laboring under the in-
sane delusion that his relatives and next of kin, who would inherit
his property if he died intestate, were his enemies and were com-
bined to kill him in order to obtain his property.

I am persuaded that the alleged will must be rejected, in that it
is unnatural and unreasonable and strange upon its face. The pro-
vision for preventing the bribing of the executor (a gentleman of
the very highest character), the disinheriting of every relative, and
the giving of his estate to charities, with one of which he is not
shown to have any knowledge, might not per se be sufficient to
justify me in declaring the will invalid, but coupled with his delu-
sions and his condition of mind, require such a determination.

Though the subscribing witnesses give their opinion that he was
of sound mind when he executed the will, the transaction of execu-
tion was very brief. They knew him but slightly, and their testi-
mony must be weighed in connection with the light thrown upon
his mental condition and delusion by all the evidence in the case.

If a will be made and executed under such a delusion which op-
erated upon the decedent, and induced him to make it, it cannol
lie upheld, though the testator's general capacity be unimpeached.
Schouler on Wills, sees, 1 .">'.», Mil; Morse v. Scott, 4 Dem. 507 ;
Matter of Dorman's Will, 5 Id. 1 I:'.

It it he evident that the dispository provisions in the will were

the result of and were caused by such a delusion, the instrument

cannot be supported as such. Matter of McHugh's Will, 17 N.
V. Week. Dig, 502; Seamen's Friend Society v. Eopper, 33 N.
5T.624 5; Olapp v. Fullerton, 34 Id. L90; Keeler's Will, L2 N.
Y. State Rep. 155 7; Weil's Will, L6 Id. I.

The rule is so well settled that it would hardly be proper or al-
lowable to extract from these ca jes :it l« Dgth to prove it. If is true
that the ca eof Peeler's Will was reversed, -J" N. Y. State Rep.
r,

82 TESTAMENTARY INCAPACITY.

439, but it was on the ground that the testator's belief in Spiritual-
ism was not sufficient to invalidate the will, that his declarations of
hostility to his relatives were merely declarations of aversion and
dislike, and that in bequeathing all his property to his wife, he was
doing a just act as against those who had no just claim upon his
bounty. The court, however (page 443), recognizes the correct-
ness of the rule that if the testator was in fact influenced in mak-
ing his will by an insane delusion as to his relatives, the will would
have been invalid.

This case is quite unlike that of Vedder's Will, 6 Dem. 92, de-
cided by me in 1888. In that case I held that :

" There is no evidence whatever that any or all of these beliefs,
delusions, eccentricities, or peculiarities had the slightest connec-
tion with or influence upon the testamentary act here in question, 1 '
and further " that mental capacity is to be measured by its relations
to the testamentary act "; and " that a person having any insane
delusion relating to the property, persons concerned, or the provi-
sions of the will, is incapable, while delusions which in no way re-
late to these do not, as a matter of law, incapacitate."

It will thus be seen that I was careful in that case to lay down
precisely the rule which I have applied in this.

The probate of the alleged will must be refused.

MENTAL CONDITION.— TESTATOR'S DECLARATIONS BEFORE

AND AFTER EXECUTION.'

Waterman and others against Whitney and others.

New York Court of Appeals, 1854.
(11 N. Y. 157.)

Application for probate of will of Joshua Whitney. Appeal.

Selden, J. — The principal question presented by the bill of ex-
ceptions in this case is, as to the admissibility of the declarations of
the testator made after the execution of the will.

The subject to which this question belongs is of very considera-
ble interest, and one upon which the decisions are to some extent
in conflict. Much of the difficulty, however, has arisen from the

1 See also the cases on declarations of testator on issue of undue influence,
post.

MENTAL CONDITION. — DECLARATIONS. 83

omission to distinguish with sufficient clearness between the differ-
ent objects for which the declarations of testators may be offered in
evidence in cases involving the validity of their wills. It will tend
to elucidate the subject to consider it under the following classifica-
tion of the purposes for which the evidence may be offered, viz. :

1. To show a revocation of a will admitted to have been once valid.

2. To impeach the validity of a will for duress, or on account of
some fraud or imposition practised upon the testator, or for some
other cause not involving his mental condition. 3. To show the
mental incapacity of the testator, or that the will was procured by
undue influence. The rules by which the admissibility of the evi-
dence is governed, naturally arrange themselves in accordance with
tin's classification. They have, however, been considered in most
of the cases without regard to it ; and hence much of the appareut
conflict among them will disappear when the proper distinctions
are taken.

To show the state of the authorities, therefore, and what the
differences really are between them, it is necessary to arrange the
cases according to this arrangement of the objects for which the
evidence is given. In referring, however, to those belonging to the
first i'f these divisions, it is proper to premise that the revocation
of a valid will, is a matter which not only in England, but in this
State, and in most if not all the other States, is regulated by stat-
ute : and these statutes are substantially the same ; those in this
country being f<>r the most part taken from the English statute of
frauds. Most if not all these statutes require either a written rev-
ocation executed with the same formalities as the will itself, or
.-"tue act amounting to a virtual destruction of the will, such as
burning, tearing, obliterating, etc., accompanied by an unequivocal
intention t<> revoke it. Mere words will, in no case, amount to a
revocation.

Under these statute-, therefore, the only possible purpose for
which evidence of the declarations of the testator can be given upon
a question of revocation, is to establish the animo revoca/ndi j in

other words, to .-how the intent with which the act relied upon as

a revocation was done. The cases on this subjed are, in the main,
in harmony with each other, ami in general entirely accord with
the new here presented. I will relVr to a few of the mosl prom-
inent Bibb v. Thomas (2 W. Black. L044) was a case of revocar

84 TESTAMENTARY INCAPACITY.

tion by throwing the will on the fire. The will was not consumed,
but fell off the fire, and was taken up and saved by a bystander
without the knowledge of the testator. The court held the revoca-
tion complete. The case was held to depend upon the intent with
which the will was thrown upon the fire ; and to establish this in-
tent the declarations of the testator, both at the time of the trans-
action and afterwards, were received. So far as regards the decla-
rations which accompanied the act, this was in accordance with
general principles, and with all the other cases ; but I apprehend
that the declarations of the testator made after the transaction was
over, could not, in such a case, be properly received. This distinc-
tion, however, was not taken, and the question did not arise. Doe
v. Perkes and others (3 Barn. & Aid. 489) was a similar case, in
which the declarations of the testator showed that he had abandoned
the intention to destroy the will before the work of destruction was
complete. No declarations were proved in this case except those
which were clearly a part of the res gestae. In the case of Dan v.
Brown (4 Cowen 483) it was insisted by the counsel that upon a
question of revocation the declarations of the testator, made either
before or after the act relied upon, were admissible, as well as those
which accompanied the act itself ; but the court held that declara-
tions accompanying the act, such as were part of the res gestae, were
admissible for the purpose of showing the quo animo / but that no
others could be received. In Jackson v. Betts (6 Cowen 377) the
main question was, whether a will proved to have been once prop-
erly executed, but which could not be found after the death of the
testator, had been canceled or destroyed and thus revoked, or
whether it continued in force ; and evidence was offered of the
declarations of the testator during his last sickness, as to the exist-
ence of his will, and the place where it would be found. The
Supreme Court held the evidence not admissible. The case ulti-
mately went to the Court of Errors, and the Chancellor there ex-
pressed doubts as to the correctness of the decision of the Supreme
Court upon the point, but did not overrule it. (See 6 Wend. 173.)
I consider these cases as establishing the doctrine that upon a
question of revocation no declarations of the testator are admissible
except such as accompany the act by which the will is revoked ;
such declarations being received as a part of the res gestae, and for
the purpose of showing the intent of the act.

MENTAL CONDITION— DECLARATIONS. 85

The only direct decision- to the contrary which has fallen under
my observation is the case of Durant v. Ashmon (2 Rich. S. Car.
R. 184:). This case, however, is in conflict with authority as well
as with principle. The fact to be proved in such cases is the act
claimed as a revocation, together with the intent with which it was
done ; and all declarations of the testator which do not accompany
the act are to be regarded as mere hearsay, and should be treated
as such.

In regard to the second class of cases, viz,, where the validity of
a will is disputed on the ground of fraud, duress, mistake, or some
similar cause, aside from the mental weakness of the testator, I
think it equally clear that no declarations of the testator himself
can be received in evidence except such as were made at the time
of the execution of the will, and are strictly a part of the res gestae.
Jackson v. Kniffen (2 John. 31) is a leading case on this subject.
In that case the plaintiff claimed as heir at law ; the defendant under
the will of David Kniffen. The plaintiff gave evidence tending
strongly to show that the will was obtained by duress, and offered
to follow this up by proof of the testator's declarations, some of
them made in extremis, that the will had been extorted from him
by threats and duress. The court held the evidence inadmissible.
Thompson, J. r says: "This will might have been executed under
circumstances which ought to invalidate it, but to allow it to be im-
peached by the parol declarations of the testator himself, would, in
my judgment, bo eluding the statute, and an infringement upon
well settled and established principles of law." In Smith v. Ken-
ner 1 1 Gallison L70), one of the questions was, whether the will of
Arthur Fenner had been obtained by fraud and imposition, and the
plaintiffs offered to prove declarations of the testator to that effect,

made before and at the time of making the will and immedi<it< hj

afterwards. He also offered to prove similar declarations made

afterward- at dillerent times during the last years of his life. The
court held that the deelarat ions made before as well a- a! or SO near

the time as to be a part of the res gestcu were admissible, bul not
those made afterwards. So far as this case seems to justify the re-
ception of declarations made before the execution of the will to
prove fraud or duress, 1 think it inconsistent with principle, as well

opposed to the best considered -if the modern cases. In other
respectE it U in accordance with both. In the case of Stevens v.

$6 TESTAMENTARY INCAPACITY.

Yancleve (4 Wash. C. C. P. 262), it was made a question whether
a will had been duly executed ; and as bearing upon that question,
the defendant's counsel offered to prove that the uniform declara-
tions of the testator in favor of the defendant, who was the devisee,
had been consistent with the disposition of the will in 1817. The
evidence was rejected. Washington, J., said : " The declarations
of a party to a deed or will, whether prior or subsequent to its exe-
cution, are nothing more than hearsay evidence, and nothing could
be more dangerous than the admission of it, either to control the
construction of the instrument, or to support or destroy its validity/'
In Moritz v. Brough (16 Serg. & Rawle 403) the Supreme Court
of Pennsylvania held the declarations of the testator, whether made
before or after the execution of the will, inadmissible for the pur-
pose of proving fraud or coercion, although it is there conceded
that for the purpose of showing the mental imbecility of the testator
such evidence might be received. It was also unanimously decided
by the Court of Errors of Connecticut, in the case of Comstock v.
Hadlyme (8 Conn. 254), that the declarations of the testator, unless
a part of the res gestae, Were not admissible for any purpose except
to prove his mental condition at the time of executing the will.
The same doctrine is held by the English courts. In Provis v.
Peed (5 Bing. 435) it was sought to impeach the validity of the
will by proving the declarations of the testator made after its exe-
cution. The evidence was rejected. Best, Ch. J., said : "It has
been insisted that declarations of the testator were admissible in
evidence to show that the will he had executed was not valid ; but
no case has been cited in support of such a position, and we shall
not, for the first time, establish a doctrine which would render use-
less the precaution of making a will."

These cases must, I think, be sufficient to establish the position
that declarations of a testator, made either before or after the exe-
cution of the will, are not competent evidence to impeach its
validity on the ground of fraud, duress, imposition, or other like
cause. In one of Cowen & Hill's Notes to Phillipps on Evidence
(see note 481, p. 257), it seems to be insisted that the declarations
of a devisor are admissible against the devisee upon the same
principle with those of an ancestor against the heir, or of a grantor
against his grantee. Perhaps they may be, where the declaration
is in regard to the estate ; but where it has reference to the validity

MENTAL CONDITION. — DECLARATIONS. 87

of the will, the case is entirely different. Declarations of an an-
cestor, grantor, etc., are admitted, because they are against the
interest of the party making them, and might, when made, have
been used against him. But these reasons do not apply at all to the
declarations of a testator in regard to his will. He has no interest
in the matter, and the declarations could never, under any circum-
stances, be used against him personally. The distinction is obvious
and material. There are one or two cases in the reports of the
State of North Carolina which might seem to hold a contrary doc
trine to that here advanced, viz. : Reel v. Reel (1 Hawks 248), and
Howell v. Barden (3 Dev. 462). But the decision in the first of
these cases is entirely reconcilable with the view here taken,
although all that is said by the court may not be.

I have referred thus particularly to these numerous cases, in
which the declarations of testators have been held inadmissible
upon contests respecting the validity of their wills, for the pur-
pose of showing that they all apply to one or the other of the first
two of the three classes into which I have divided the cases on the
subject. None of them have any application to. cases in which the
will is assailed on account of the insanity, or mental incapacity of
the testator at the time the will was executed, or on the ground
that the will was obtained by undue influence.

The difference is certainly very obvious between receiving the
declarations of a testator, to prove a distinct external fact, such as
duress or fraud for instance, and as evidence merely of the mental
condition of the testator. In the former case it is mere hearsay,
and liable to all the objections to which the mere declarations of
third perSOIlE are BUbject; while in the latter it is the most direct

and appropriate species of evidence. Questions of mental compe-
tency and of undue influence belong in this respect to the same
class: because, as is said by Jarman, in his work on wills, "The
amount of undue influence which will be sufficient to invalidate a
will, must of course vary with the strength or weakness of the
mind of the testator." (1 Jarman on Wills, 36.) So the mental
strength and condition of the testator is directly in issue in every
e of alleged undue influence ; and the same evidence is admis-
sible m every Buch ease, a in cases where insanity or absolute in-
competency is alleged, [t is abundantly settled thai upon either
of these questions, the declarations of the testator, made at or l><

88 TESTAMENTARY INCAPACITY.

fore the time of the execution of the will, are competent evidence.
The only doubt which exists on the subject is, whether declara-
tions made subsequent thereto may also be received.

Clear and accurate writers have been led into confusion on this
subject, by not attending to the distinctions growing out of the
different purposes for which the evidence may be offered. Mr.
Greenleaf, in his work on evidence, in treating of the invalidity of
wills, in consequence of the insanity, or mental imbecility of the
testator, says : " In the proof of insanity, though the evidence
must relate to the time of the act in question, yet evidence of in-
sanity immediately before or after the time is admissible. Suicide
committed by the testator soon after making his will, is admissible
as evidence of insanity, but it is not conclusive." And in the same
section he adds : " The declarations of the testator himself are ad-
missible only when they were made so near the time of the execu-
tion of the will as to become a part of the res gestae" and he refers
for the last proposition to Smith v. Fenner, supra. (See 2 Greenl.
Ev., sec. 690.) Nothing could be more incongruous than the dif-
ferent branches of this section. To say that the insanity of the
testator, subsequent to the making of the will, may be proved, but
that the declarations of the testator are inadmissible for the purpose
of proving it, is not a little extraordinary. It admits the fact,
but excludes the most common and appropriate evidence to es-
tablish it.

This incongruity, and the citation of the case of Smith v. Fen-
ner, where the declarations were offered not to prove insanity or
mental imbecility, but fraud and circumvention, shows that the
attention of the learned author was not directed to the distinction
I have alluded to. The first position advanced by Mr. Greenleaf
in this passage, viz. : that the insanity or incapacity of the testator
after the execution of the will may be proved, not as important in
itself, but as a means of arriving at his condition when the will
was executed, seems to be sustained by authority. (Dickinson v.
Barber, 9 Mass. 225 ; Grant v. Thompson, 4 Conn. R. 203 ; Irish
v. Smith, 8 Serg. and Rawle 573.) But the latter, that this can-
not be established by the conversation or declarations of the tes-
tator himself, is in conflict with numerous cases. In Stevens v.
Yancleve (4 Wash. C. C. It. 202), the question arose, and Wash-
ington, J., said : " The only point of time to be looked at by the

MENTAL CONDITION. — DECLARATIONS. 89

jury, at which the capacity of the testator is to be tested, is that,
when the will was executed. He may have been incapable to make
a will at any time before or after that period, and the law permits
evidence of such prior and subsequent incapacity to be given. But
unless it hear upon that period, and is of such a nature as to show
incompetency when the will was executed, it amounts to nothing."
In Rambler v. Tryon (7 Serg. & Rawle 90), upon a question of
mental imbecility, the plaintiff was permitted to prove that the
testator, in the absence of his wife, to whom he had devised his
property, " told the witness that his father-in-law and wife plagued
him to go to Lebanon : that they wanted him to give her all, or he
would have no rest, and that he did not wish to go to Lebanon."
The court held this proof admissible as evidence of weakness of
mind, operated upon by excessive and undue importunity. It
does not distinctly appear from the report of this case, whether
the declaration was prior or subsequent to the making of the will ;
but in the subsequent case of McTaggart v. Thompson (14 Pennsyl.
R. 149), it is distinctly asserted by the court that the declaration
was after the execution of the will. Rogers, J., says: "It is ex-
pressly ruled in Rambler v. Tryon (7 Serg. & Rawle 90), that
the declarations of the testator, although after the execution of the
will, are evidence of imbecility of mind."

The offer in the case of McTaggart v. Thompson was, to prove
declarations of the testator after the execution of the will as to the
disposition of his property, "that he had ruined his family, and
that he had been deceived and imposed upon by persons who pro-
cured him t<> make his will." The court held the evidence inad-
missible. The ease of Reel v. Reel (1 Hawks 247) is a leading

e on this snbject, and one which has been supposed to conflict,
and was supposed by the court which decided it to cotillict with

several of the cases I have cited, especially Jackson v. Kniffen (2
John. 31) and Smith v. Fenner (1 Gallis. L70); but which, when
viewed in the light of the arrangement of the cases which is here
adopted, will be seen to lie in entire harmony with them. The

oiler iii Keel v. Keel was to prove repeated declarations of the teS-

tator, made after the execution of the will, in which he stated its

contents to be materially and utterly different from what they
were. These declarations were offered in connection with con-
flicting testimony upon the point of testamentary capacity. The

90 TESTAMENTARY INCAPACITY.

evidence here offered bore exclusively upon the question of the
competency of the testator : and of course did not fall within the
principle of those cases, which exclude declarations bearing upon
questions of fraud, duress, etc., unless a part of the res gestae.
Hence there was no necessity, as the court seemed to suppose, for
overruling the cases of Jackson v. Kniffen and Smith v. Fenner,
in order to admit the evidence offered in this case. The decision
of the court in holding the evidence admissible, is not in conflict,
so far as I have been able to discover, with any adjudged case,
either in this country or in England, and on the other hand is in
entire harmony with what seems to be the established doctrine,
that the insanity or imbecility of the testator subsequent to making
the will may be proved, in connection with other evidence, with a
view to its reflex influence upon the question of his condition at
the time of executing the will. Indeed, if the latter doctrine is
sound it necessarily follows that the decision is right.

This conclusion is of course decisive of the present case, which
is identical in principle with that of Reel v. Reel. Here, as in
that case, the offer was to prove declarations of the testator, stating
the contents of the will to be entirely different from what they
were in fact : and these declarations were offered in connection
with other evidence bearing upon the competency of the testator
at and before the execution of the will. If evidence of the mental
condition of the testator after the execution of the will is admis-
sible in any case, as to his capacity when the will was executed,
and the competency of such proof seems to be sustained by many '
authorities and contradicted by none ; then it is clear that the tes-
timony offered here should have been admitted.

It does not follow from this that evidence of this nature is
necessarily to be received, however remote it may be in point of
time from the execution of the will. The object of the evidence
is to show the mental state of the testator at the time when the
will was executed. Of course, therefore, it is admissible only
where it has a legitimate bearing upon that question : and of this
the court must judge, as in every other case, where the relevancy
of testimony is denied. If the Judge can see that the evidence
offered cannot justly be supposed to reflect any light upon the
mental condition of the testator, at the time of making the will, he
has an undoubted right to exclude it. In the present case it was

TESTIMONY CONCERNING SANITY. 91

impossible for the Judge to say this in advance of any information
as to the precise period when, and the circumstances under which
the declarations proposed to be proved were made.

There is no conflict between the doctrine here advanced in re-
gard to the admissibility of the species of evidence in question and
the rule before adverted to, which excludes it when the issue is as
to the revocation of a will. The difference between the two cases
consists in the different nature of the inquiries involved. One
relates to a voluntary and conscious act of the mind ; the other to
its involuntary state or condition. To receive evidence of subse-
quent declarations in the 'former case would be attended with all
the dangers which could grow out of changes of purpose, or of ex-
ternal motives operating upon an intelligent mind. No such
dangers would attend the evidence upon inquiries in relation to
the sanity or capacity of the testator.

It is unnecessary to notice the other points in the case. It may,
however, be proper to say that the testimony offered and rejected,
in regard to the.two thousand acres of land in Florida, was wholly
immaterial, as it would not, if given, have been in the least incon-
sistent with the will, which in terms admitted that the land had
formerly belonged to "William.

The judgment of the Supreme Court must be reversed, and
there must be a new trial of the issues.

Denio, Johnson, Parker, Allen, and Edwards, JJ., con-
curred.

Gardiner, C. J., dissented.

Judgment of the Supreme Court reversed and new trial ordered.

TE8TIMONY CONCERNING SANITY.

In considering the Bubjecl of evidence concerning the sanity of
the testator, it must be noticed thai the topic Is one on which dif-
ferenl courts would !»»• likely to lay down different rules concern-
ing the competency of the witnesses and the proper scope of their
testimony. Such variance does, in fact, exist in some points. We
will here point oul the generally accepted and leading rules, and call
attention to the marked exceptions. In doing so it will be con-
venient to classify witnesses in three groups, namely : first, the sub-
scribing witm i : second, experts; and third, other witnesses.

1. So far Bfl subscribing witnesses go, then, il Is customary to

92 TESTAMENTARY INCAPACITY.

allow them a good deal of leeway. One of the very purposes of
requiring witnesses at all is to provide for testimony from compe-
tent persons on the question, among others, of the testator's gen-
eral capacity to make a will. Their position, too, in having been
present at the execution, and having their attention called, with
more or less directness, to the fact that testator was doing some
act calling for the exercise of some degree of judgment, and in
having themselves subscribed their names on the same paper
signed by him, is such as to render their testimony of unusual im-
portance. 1 They may therefore testify whether, in their opinion,
testator was, at the time of executing the will, sane or insane.' If
required, they must, however, state the facts on which that opin-
ion is based. 3 And their testimony is not conclusive. 4

2. Much scope is also allowed in the testimony of a competent
expert, made familiar by experience and training with the field to
which his testimony relates. On the basis of the facts testified to
by other witnesses, or of facts observed by himself in the particu-
lar instance, he may state his opinion of the sanity of the testa-
tor, 6 and should state the particular facts and grounds on which he
bases it. 6

3. Other witnesses, non-professional and non-subscribing, are in
general allowed to give their opinion, derived from personal ob-
servation, of testator's sanity. 7 But they must state the facts ob-
served by them, on which they base the opinions given/ and their
opportunities for observation will greatly affect the weight of their
testimony. 9

In some States, however, these non-expert, non-attesting wit-

1 Hastings v. Rider, 99 Mass. 622.

2 Clapp v. Fullerton, 34 N. Y. 190 ; Robinson v. Adams, 62 Me. 369 (409).

3 Robinson v. Adams, 62 Me. 369 (409). 4 Scbouler on Wills, § 178.
6 Heald v. Thing, 45 Me. 392 ; Kempsey v. McGinness, 21 Mich. 123.

6 Kempsey v. McGinniss, 21 Mich. 123 ; Gibson v. Gibson, 9 Yerg. 329 ;
Keith v. Lothrop, 10 Cush. 453 ; Heald v. Thing, 45 Me. 392 ; Clark v. State,
12 Ohio 483.

1 Beaubien v. Cicotte, 12 Mich. 459 (501); Weems v. Weems, 19 Md. 334;
Stubbs v. Houston, 33 Ala. 555; Cram v. Cram, 33 Vt. 15; Hardy v. Merrill,
56 N. H. 227; In re Will of Norman (la.), 33 N. W. Rep. 374.

8 Appleby v. Brock, 76 Mo. 314; Turner v. Cheesman, 15 N. J. Eq. 243;
Dunham's Appeal. 27 Conn. 192; Staser v. Hogan, 120 Ind. 207.

9 Weems v. Weems, 19 Ala. 334.

TESTIMONY CONCERNING SANITY. 93

nesses are allowed to testify merely to the facts observed by them
bearing on the question of testator's sanity at the time in question,
leaving the jury to deduce from the facts so stated, aided by the
opinions of experts and of the subscribing witnesses, their own
opinion on the subject in question. 1 The distinction, however,
between facts, and opinions derived therefrom, is often exceed-
ingly fine-spun. Thus it was held, in Nash v. Hunt, 2 that testi-
mony that witness noticed " no incoherence of thought," and noth-
ing ''unusual or singular" in testator's mental condition, was held
to relate to a fact and not an opinion. And in New York, non-
expert, non-subscribing witnesses may testify to acts and declara-
tions of testator observed by them, and may characterize them as
"rational" or "irrational," and give the impression produced
thereby on their own minds. But they are not allowed to state
their opinion of testator's sanity or insanity. 3

In all the foregoing classes of cases, the opinions of witnesses,
where admissible, are to be tested by the facts on which the wit-
ness bases them, and which are stated in his testimony, and their
weight will depend both on the nature? of the facts and the oppor-
tunities enjoyed by the witness for forming a comprehensive and
accurate opinion. But, nevertheless, the opinions themselves, in
connection with the facts and circumstances, are also entitled to
weight on their own account. Otherwise, there would be no ob-
ject in admitting them.

Note.

For a general review of the subject of insanity in its relation to
testamentary capacity, the following works may be consulted :

Ray's Medical Jurisprudence of Insanity; 2 Taylor's Principles
of Medical Jurisprudence, ch. 88 99; Dr. Wm. A. Hammond's
•• In.-aiiitv in its Medico-Legal Relations"; 1 Wharton & Stille's

Hastings v. Rider, 99 Ma 622. Such was the decision in Boardman v.
Woodman, IT N. II. 120, new abandoned In Bard; v. Merrill, 56 N. B.227.
!■-,,,• .,„ exhaustive review of the decisions on both Bides of this question, e<

enting opinion of Doe, J., In State v. Pike, 51 N. B. 105 Bee also Gehrke

v. State, 18 Tex. 568.
'' 118 Mass. 287. AJsoeee May v. Bradlee, 127 Ma i U4
* RideT \. Mllli r, 88 N. V. 507; Clapp v. Fuilerton, 84.N. V. 190.

94 TESTAMENTARY INCAPACITY.

Medical Jurisprudence, Bk. I., ch. 2 ; Bk. II. ; Maudsley's Physi-
ology and Pathology of the Mind ; Buswell on Insanity, Ch. I.
and Ch. XI. ; Browne's Medical Jurisprudence of Insanity ; El-
well's Medical Jurisprudence, Chs. XXIV.-XXXI ; Esquirol's
Illusions of the Insane. And on the testimony of Experts, also
Ordronaux's Jurisprudence of Insanity.

CHAPTER II.
UNDUE INFLUENCE.— FRAUD.

We have again and again reiterated the principle that what the
law seeks to find and enforce is the real and duly authenticated
wish or will of the testator himself. Therefore, if it can be shown
that the instrument propounded embodies not his will, but that of
somebody else, then, of course, it cannot be enforced. The trouble
with it may be that there was actual fraud, as, for example, in
reading one instrument to the testator and then surreptitiously
substituting another for him to sign ; ' or it may be that the
testator was badgered or crowded or actually coerced into making
a will not representing his own personal wishes. In such cases
the instrument is not the will of the testator, and has no claim
whatever for consideration at the hands of the law. But influence
over testator's mind, in order to vitiate the will, must be " undue,"
—that is, it must go beyond reasonable argument, suggestion,
request, advice, persuasion, or the urging of claims to special recog-
nition." The true test of " undue " influence is that it overpowers
the will without convincing the judgment. 2

It is obvious that undue influence is more likely to be found, or
perhaps is only to be found, where the testator is feeble, and ready
to yield for the sake of peace, or is somewhat weak in mind or
body, or in nunc way not fully fitted, or in a position, to stand up
for his own rights; and so also in regard to fraud, — it is more
easily perpetrated where testator is blind, or deaf, or otherwise
disabled. In all such cases, therefore, special care is required to
make sure that the instrument does embody the testator's own will/

Doedem. Small v. Allen, 8T. R. 147 (given post),

Dale's Appeal, 67 Conn. 127; Kerr v. Lunaford, 21 W. Va. 659 ; Stouten-
burgh v. Hopkins. 48 N. J. Bq. . r ,77 : Barle v, Norfolk, 86 N. .!. ESq. 92;
Bastiav. Montgomery (Ala.), 9 So. Rep. 811 ;Tallman'sWill(Penn.), 28 Ail. R.
986; Hen' Will (Minn.), 51 X. W. Rep. 814,

Hull v Hail. L. R, i I*. & I). 581, given post; Severance v. Severance
(Mich.;, .Vj \\ \v. 392 ; Schmidl v. Sriimi.lt (Minn.), 50 X. W. 598

■<;rimtii v. Diffenderfler, 50 Md. 466 (481); Reichenbacn v. Knd.lach, 127
Perm. St. 564

(95)

96 UNDUE INFLUENCE.

UNDUE INFLUENCE.— BURDEN OF PROOF.

As already stated, the burden of making out a charge of undue
influence rests on the party setting it up.' If he relies on it he
must prove it by a preponderance of evidence. 2 Mere suspicions
will not answer. 3

The question of whether the contestant in any given case has
offered sufficient evidence of undue influence to tip the balance
against the will, depends on all the facts of the particular case
itself, and few rules of general application can be laid down.
There are some points, however, to which attention should be
called, namely :

1. In transactions inter vivos, the mere fact that the parties
stand in some fiduciary relation toward one another, as that of
guardian and ward, confessor and confessed, attorney and client,
or physician and patient, may be in itself sufficient to raise a pre-
sumption of undue influence, and call upon the confessor, attorney,
or guardian to show the absence thereof. 4 In the case of wills,
however, proof of the mere fact that the beneficiary was the trustee,
confessor, physician, attorney, or guardian of the testator, or occu-
pied any fiduciary relation toward him, though often a suspicious
circumstance, does not of itself raise a presumption of undue in-
fluence. 5

2. But if it be shown that the guardian, or other person occupy-
ing the fiduciary position, made active personal efforts to procure

1 Tyler v. Gardiner, 35 N. Y. 559.

2 Seebrock v. Fedawa, 46 N. W. Rep. 650.

3 Parfitt v. Lawless, L. R. 2 P. & D. 462.

4 Nesbit v. Lockman, 34 N. Y. 167. The person propounding the alleged
last will of a testatrix was the chairman of the board of guardians of the union
in whose workhouse infirmary the testatrix was an inmate at the time the
alleged will was made, and in which she died. The plaintiff obtained from a
solicitor a form of will, and filled it up in pencil. He refused to allow the
solicitor to go to the deceased. Having got the will, the plaintiff called in a
friend of his own, and with him went to the infirmary, and the testatrix put
her mark to the will in their presence and that of a nurse. The jury found
that a plea of undue influence was established. Parker v. Duncan, 62 L. T.
(N. S.)642. (Such is the statement of the headnote in the report. The jury in
fact found also, however, that testatrix was not of sound mind, and that she
did not know the contents of the alleged will.)

5 Parfitt v. Lawless, L. R. 2 P. & D. 462 ; Bancroft v. Otis, 8 So. Rep. 286
giving a very full discussion of the subject).

BURDEN OF PROOF. 97

the will in bis own favor, then it devolves on him to prove that
nevertheless the will was the free act of the testator. 1

3. The mere fact that the beneficiary drew the will, even though
testator's attorney, does not necessarily and always raise a presump-
tion of undue influence, 2 though the circumstance is more or less
suspicious, according to the facts of the particular case.' And all
the fact- may, when taken in conjunction with it, create so strong
a suspicion as to raise a presumption of undue influence. 4

4. Bequests to persons in confidential relations not fiduciary in
the ordinary sense, as, for instance, that of parent and child, master
and servant, etc., do not in themselves raise any presumption of
undue influence, not even where the beneficiary did take active
steps to procure the will. In such cases further proof that the
influence was undue must be offered. 5 But if such a beneficiary
bad the testator in his power, and testator was feeble, or other
suspicious circumstances are shown, then the confidential relation
may contribute to raise a presumption of undue influence, especially
where the provisions of the will are unnatural. 8

5. Illicit relatii his between testator and beneficiary, when coupled
with other circumstances, indicating either actual constraint;
impaired testamentary capacity; loss of will power; habits of in-
temperance; sickness or disease at the time of making the will,
contribute to raise a presumption of undue influence. But taken
merely by themselves, they raise no such presumption. 7

1 Dale'fl Appeal, ■>"! Conn. 127 ; Parker v. Duncan, 02 L. T. (N. S.) 642.
Posl v. Mason, 91 X. V. 539; Barry v. Butlin, 1 Curt. o:$7 ; Loder v.
WTielpley, ill X. Y. 289(260); Sheldon's Will, Hi X. V. Sup]). 154.
Barry v. Butlin, 1 Curt. (;:;:.

M itter of Will of Smith, 95 X. V. 516 ; Tyler v. Gardiner, 85 X. V. 559.
Fritz v. Turner, 46 X. J. Eq. 515. Sec Jones v. Robertson, 87 Mo. App.
L68

' D:,!, , Dale, 88 X. J. Eq, 271 ; Carroll v. House, 22 AH Rep. 191; Lyons
v. Campbell, 88 Ala. 462; Tyler v. Gardiner, 85 X. V. 559; Roberts v.
Trawick, 18 Ala. 7m ; Matter of Westurn, 60 Hun '.".is; Cowee v. Cornell i i
N Y. :tl (99).

'Heilbi 9Penn. Co. Ct. R. 850 ; Wallacev. Han Mich.

B98 i

98 UNDUE INFLUENCE. — FRAUD.

FRAUD.— SURREPTITIOUS SUBSTITUTION.
Doc on the demi§e of Small and others against Allen.

Court op King's Bench, 1799.
(8 T. R. 147.)

Suit in ejectment involving title to certain premises in Shrop-
shire. Testator had executed one will March 5, 1762, and a second
March 20, 1762. The suit turned on the question which of
these was the valid last will. At the trial before Thompson, Baron,
at the assizes for the County of Salop the due execution of the
will of the 20th of March, 1762, being proved, the defendant, who
wished to set up the will of the 5th of March preceding, offered
to call a witness to prove that she was in the room when the testa-
tor executed the will of the 20th of March, and that at the time
of the execution the testator inquired whether it was the same as
the former ; and was told that it was. This evidence was objected
to and the objection allowed, and there was a verdict for the plain-
tiff, with liberty to the defendant to move for a new trial in case
the evidence ought to have been received. A rule to show cause
was accordingly obtained.

Lord Kenyon, Ch. J. — I think that this evidence ought to have
been received. The testator having made one will, which (is ad-
mitted) was a good will, and being pressed by certain persons
around him to make another will, asked in the presence of credi-
ble witnesses whether or not the second will, which was brought to
him to be executed, were 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 Selwm v. Browne. 1
I agree that the contents of a will are not to be explained by parol
evidence ; but, notwithstanding that act, evidence may be given
to shew that a will was obtained by fraud. And the effect of the
evidence offered in this case was to shew that one paper was ob-
truded on the testator for another which he intended to execute.

[The report gives a brief opinion to the same effect by Grose,
J. ; and Lawrence, J., also concurred.]

Rule absolute.

1 Cas. temp Talbot, 240 ; 4 Bro. P. C. 179 (186).

INFLUENCE OF WIFE. 99

CONSTRAINT.— SICK AND FEEBLE TESTATOR.
Hacker v. Newborn, a Sussex Cause.

Banc. Sup., 1654.
(Styles, 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 he said to be
a Will made by constraint, and shall not be a good Will. By
Rolle chief justice, In a Tryal at the Bar in the Case of one
Hecker and Newborn, Mich. 1(554.

UNDUE INFLUENCE.— GENERAL PRINCIPLES.— INFLUENCE OF

WIFE.

Hall v. Hall.

English Court of Probate, 1868.
(L. R. 1 P. & D. 481.)

This was a testamentary suit in which the plaintiff, Ann Hall,
propounded the will of her deceased husband, John Hall. The
defendant, William Hall, the brother of the deceased, pleaded that
the will was obtained by the undue influence of the plaintiff. Issue
was joined on this plea, and the cause was tried on the 6th and
7th of March, 1808, before Sir J. P. Wilde, by a special jury.
The deceased was a fanner and land valuer near Nottingham, and
by the will in question he left the whole of his property, of the

value of between 615,000 and 620,000, to his wife.

Sir •/. P. Wihi. in summing up, gave the following direction
t<> the jury on the question of undue influence: To make a good
will ;i man musl be a fvc(' agent. But all influences are not un-
lawful. Persuasion, appeal- to the affections Or ties of kindred, to
ntiimiit of gratitude for pasl services, or pity for future desti-
tution, 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 tn overpower the volition without convincing the judgment, is
aBpeciesof restraint under which no valid will can be made. Im-
portunity or threats, such as the testator has not the courage to

100 UNDUE INFLUENCE. — FRAUD.

resist, moral command asserted and yielded to for the sake of peace
and quiet, or of escaping from distress of mind or social discom-
fort, 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.

His Lordship went on to say that in this case the question was
one of credibility, for, according to the evidence on the one side,
the plaintiff had procured the will by violence, threats, and intim-
idation, whilst, according to the evidence of the plaintiff and her
witnesses, she had not even resorted to persuasion.

The jury found that the plea of undue influence was proved.

The Court pronounced against the will and condemned the plain-
tiff in costs.

UNDUE INFLUENCE.— SUSPICIOUS CIRCUMSTANCES.
In re Bernsee's Will. 1

New York Supreme Court, 1892.
(17 N. Y. Supp. 669.)

Appeal from decree of Surrogate of Kings County, admitting
to probate a paper purporting to be the will of Adelina D. Bernsee,
deceased. Two questions were raised on the appeal : first, whether
due execution was sufficiently proved, and second, whether the
will was framed by undue influence.

Pratt, J. (After finding that due execution had not been
proved). 2. Was the will framed by undue influence? While
this fact is to be proved, not presumed, the undisputed facts tend
strongly to the conclusion that such was the case. A prior will
which divided the property equally between the children of testa-
trix, two sons and two daughters ; uninterrupted affectionate rela-
tions between testatrix and at least one of the daughters ; her
residence with the sons at the time of the making of the will ; her
refusal, or, at least, neglect, to see either daughter after she took

1 It will be noticed that this is a recent decision of the Supreme Court, and
may yet be passed on by the Court of Appeals. The facts as here stated are,
however, certainly evidence competent on the question of undue influence.

PERSUASION. 101

up her residence with the sons ; the refusal of the daughters to
recognize the alleged wife of one of the sons, as not married to
him ; the declaration in the will of untilial conduct of the daughters,
against the uncontradicted proof ; the failure to call the draughts-
man of the will ; the presence of the son at the time of the execu-
tion, when, if Mr. Black is to be believed, he had nothing to do,
and did nothing ; her nervous and very excited condition at the
time, which is not disputed ; her entire disinheritance of her
daughters, and the giving of her entire estate to her sons, with
whom she lived, — all, unexplained, tend powerfully to show undue
influence. These circumstances called strongly upon the surrogate
for the exercise of his discretion in calling for the draughtsman of
the will to ascertain who prompted it, and the conditions surround-
ing its preparation. Upon the facts, therefore, the judgment
shonld be reversed. There were several rulings of the surrogate,
in the rejection and striking out of testimony, which appear to
have been erroneous, but which it is unnecessary to consider.

I >!//>■ in an, J., concurring. Barnard, P. J., dissenting.

UNDUE INFLUENCE.— GENERAL PRINCIPLES.— PERSUASION.
Earl or Scfton and Another v. llopwood.

Nisi Prius, Nortiikkn Circuit, 1855.
(1 F. & F. 578.)

This was an issue directed by the Court of Chancery to ascertain
whether certain i lociin iciit s dated the L2th of April, and the Mth
of May. L853, were respect ively the codicil and will of Robert

( 1-regge I [opwood. ( me <>f the questions raised was that of undue
influence.

It appeared thai Mr. llopwood was the owner of an ancient
family estate culled llopwood 1 [all, and of other freehold property,

including a colliery, named llopwood Colliery, and that at the

times of making hi.s codicil and his will, and of his death, he had
an i • I < I ■ • - 1 son, the defendant, who was married and had a BOI1 and
four daughters, and he had also tWO other Mins and a daughter.

By the codicil Lord Sefton was appointed executor, and by the
will, which, like the codicil, was drawn ami witnessed by the family
solicitor, Mr. Hopwood revoked former testamentary dispositions,

102 UNDUE INFLUENCE. — FRAUD.

in order, as alleged, to mark bis indignation against the defendant,
and cut him off entirely.

The evidence on the point of undue influence by defendant's
brothers against him was conflicting.

Cresswell, J., directed the jury as to the law, thus — (after
stating the rule of testamentary capacity and the right of a com-
petent testator to dispose of his property as he pleases) :

I had supposed, during a great portion of this trial, that would
be the sole question you would have to deal with, but towards the
close of the Attorney-General's address, I apprehend that he meant
to raise another question with which I shall therefore think it
necessary to trouble you, namely, the question of whether, assuming
Mr. Ilopwood had capacity to dispose of his property, this was his
will or not. The subject of wills procured by influence has been
a good deal discussed of late years, and I think that the law, as at
present understood, has somewhat modified the earlier opinions on
the subject. 1 take it, that in order to invalidate a will on the
score of influence, it is not sufficient that you should think the
testator has been persuaded into making a will of a particular kind,
that he has been persuaded to benefit this or that person to a certain
extent, for in that case I fear that a vast number, if not the greater
proportion, might be set aside, and what is the sort of influence
that is to set aside a will 4 Is it the influence exercised by acts of
attention and kindness? Is it the influence acquired by showing
devoted affection? Certainly not. And yet how many wills are
made under the influence of feelings so excited. It must be an
influence depriving the party of the exercise of his judgment and
his free action ; it must be such an influence as induces you to
think that the will, when executed, is not the will he desires to
execute, that he does not benefit the parties whom he would wish
to benefit, but that he is doing that which is not his desire, and
therefore not his will.

Yerdict for the defendant.

UNDUE INFLUENCE. 103

UNDUE INFLUENCE.
Bush v. Lisle.

Kentucky Court of Appeals, 1889.
(89 Ky. 393.)

Lewis, C. J. — This is an appeal from a judgment rendered on
verdict of the jury finding a paper dated October 30, 1876, and
probated, in the county court, not to be the true last will and tes-
tament of F. M. Lisle, who died in February, 1879, at about the
age of 58 years, without wife or child. He left no parents, his
mother having died before he did, though subsequent to date of
the paper, those who would have inherited his estate in case of no
will, being one brother, three sisters, and children of each of four
>i.-ters who were dead. But he devised, or attempted to devise,
the whole of his estate, of value about $20,000, consisting of
choses in action, money, and land, to his sister Minerva Bush, her
foiii- (laughters, and husband. Robert E. Bush; there being given
to the last named, who was appointed executor, five shares of
bank stock, to each of the four nieces specified land and money,
and to the sister the residue. The grounds upon which the other
heirs at law assail the validity of the paper as a will are want of
testamentary capacity and undue influence. It appears that previ-
ous to l^iW, the decedent hail been a professional gambler, but as
the effect of syphilis contracted many years previously, from which
he never recovered, and probably of excess and dissipation, he be-
came a wreck physically, losing his hair, teeth, eyesight partially,

and use of his lower limbs to such an extent as to make crutches

necessary for locomotion; and in that condition he went to the
residence of a double cousin in Fayette County, Rufus Lisle, with
whom he stayed until L 867 or 1868, when he removed to the house
of Robert E. Bush, in ('lark County, where he remained until his
death: a room adjoining the dwelling-house having been con-
Btructed at his own Instance and expense for him to occupy. With-

in a year or two after going to the hoii-e .if hi- brother-in-law he
became totally blind, unable to walk, and from hi- mouth, which

- drawn out of it- natural -li.i | >< ■. offensive matter escaped. So
he thereafter required ami received from those t" whom he at-
tempted to '_ r ivo lib estate the mo I a siduous, careful, and affec-
tionate nursing and attention, lie had, before going there, as re-

104 UNDUE INFLUENCE. — FEAUD.

lief from his intense suffering in his lower limbs, contracted and
continued to his death, the habit of using morphine, a compara-
tively large quantity of which he daily consumed. It further ap-
pears that during paroxysms of physical pain he was excessively
and offensively profane and blasphemous ; and from these two
habits, both mental incapacity to make a will and undue influence
are sought to be deduced as existing facts. There is no evidence
whatever of unreasonable prejudice on his part towards any of the
contestants, nor that he was swayed or prompted to abandon any
fixed purpose, or to ignore any worthy or recognized claim on his
bounty. On the contrary, ten years before the date of the paper,
when his situation was less deplorable than it afterwards became,
and when there is no evidence that he was not entirely rational,
he offered to give his whole estate to his cousin, Unfits Lisle, to
secure a home and needful care and attention while he lived, and
the disposition he finally made of it was consistent, natural, and
commendable, because intended as a grateful recompense, no more
probably than adequate, to those who did minister to him in afflic-
tion. The person who wrote the paper testifies that besides him-
self no one was present ; that the decedent was in full possession
of his mental faculties, and, without aid or suggestion, dictated
the paper as written ; and the provisions of it show not only a
preconceived and fixed plan for disposing of his estate, and full
knowledge of the character and value of it, and the persons to
whom it was left, but unusual intelligence of the legal restraints
and limitations put upon the devises to his nieces.

Of the very large number of witnesses who testified on the trial
but three express any doubt of capacity of the decedent to make
a will. One of them, who is a contestant, stated as his opinion
that he did not think a man could be a sane man who used blas-
phemous language towards Jesus Christ. Another, who visited
him as a physician once or twice, expressed the opinion that he
did not think a person who used morphine and whiskey as decedent
did was capable of taking into consideration his property and re-
lations, and making a fair, just, and equitable disposition of his
property, though he does not undertake to say what quantity of
either he was in the habit of using, nor what his mental condition
actually was when the paper was written, nor when it was, two
days afterwards, signed and acknowledged. And the third, who

UNDUE INFLUENCE. 105

once saw him while in a paroxysm of pain, testified his professional
opinion to be that no man who had been an invalid for a number
of years, and under influence of morphine for such a length of
time, is competent to transact business. But neither one of those
three witnesses, nor any one else throughout the entire trial, testi-
fies to a single irrational act or speech by the decedent, or even
profane language when he was not, for a time, racked with pain,
with the single exception of J. B. Lisle, the principal contestant,
who refers to one trivial remark about which it was shown by
another witness he evidently misunderstood the decedent. On
the contrary, those acquainted with him testified he possessed a
clear, vigorous intellect and strong will, which continued, when he
was not in a sleepy state from use of morphine, up to his death ;
and it clearly and fully appears that from the time he went to the
house of Robert E. Bush to the date of the paper, and even after-
wards, he transacted business, loaning money, buying land, keep-
ing account of interest and dividends on stock due him, was con-
sults 1 by his friends about business matters, discussed politics,
banking, and neighborhood affairs with perfect intelligence, and
kept full control of his estate, so that when he died there had not
been any of his income wasted or disposed of at all, except with
his consent and full knowledge.

It seems to us, as the record stands, there is a total failure by
the contestants t<> show lack of mental capacity on the part of the
decedent to make a will, ami, in our opinion, evidence of undue
influence by the devisees, or of any other person, is equally un-
satisfactory, and* the venlirt of the jury ran be accounted for only
on the supposition that their attention was diverted from facts
proved, to abstract theoriesof physicians who never examined nor
had knowledge of the actual mental condition of decedenl when
the paper was executed. It is needless to refer in detail to the
testimony of the learned experts, because there was such an agree-
ment in their statements as to make reference to the evidence of
one Buffice for all. The general conclusion drawn from the hypo-
thetical case assumed by them is thai the brain of a person in the
condition the decedenl was Bhown to be in, if eon lined in the same
family eighl or nine years, taking morphine habitually three or
four times per day, administered by members of thai family,
would have no capacity to make a will or do anything which he

100 IMME INFLUENCE. — FRAUD.

believed would be contrary to the wishes of such family, and
would seek by every means to please them, although he at the
Bauie time might talk intelligently, and impress an ordinary ob-
server as being exceedingly bright, It seems, however, to be con-
ceded by the experts that the use of morphine does nol necessarily
impair the intellectual faculties, and consequently their evidence,
if pertinent in this case at all, has relation alone to the question of
undue influence. Expert testimony is worse than useless, it is
misleading when given on a subject about which there is proof so
convincing as to leave no reasonable ground for dispute, or when
variant from the actual state or condition shown by positive evi-
dence to exist, and no conclusion reached by a mere theorist, how-
ever learned, can be reasonably accepted and applied in any case
without being founded on and consistent with the facts as they
are proved to be. If there had been doubt or contrariety of evi-
dence in regard to the real state of the decedent's intellectual fac-
ulties, it might have been pertinent to show by experts what are
the usual consequences of physical infirmities and habits such as
his. But it does not appear that his mind was impaired or affected
by the disease he was afflicted with, nor that he was dependent
upon Robert E. Bush or any of his family for morphine, nor was
their aid in procuring it, or permission to use it, ever sought by
him. On the contrary, he had an estate sufficient to gratify every
wish and supply every want, the character and value of which he
well knew, and the management and control of which he kept
without dispute or question till his death, and the morphine used
by him was purchased with his own means and at his own pleas-
ure, without hindrance or protest from any one. And, whatever
may be the ordinary effect of use of morphine, the evidence in
this case does not show any weakening of the will power of the
decedent, nor the slightest effort on the part of any one of his
devisees or other person to influence or control, by coercion, argu-
ment, or persuasion, the final disposition of his estate, nor that he
was influenced to dispose of it as he did by any other reason,
motive, or feeling than gratitude to and affection for Mrs. Bush,
who was his favorite sister, as shown by two previous wills, in
one of which he gave his estate to her and a brother since dead,
and in the other the bulk of it to her, and by the significant fact

UNDUE INFLUENCE. 107

that, when he became a helpless and doomed invalid, he selected
her, of all others, to nurse and care for him.

There is some evidence tending to show her anxiety about the
manner in which he would dispose of his property, but none that
she or any one else attempted to influence him in regard thereto
by importunity, persuasion, or even suggestion. In two instances
she interfered to prevent gifts by him to other persons, one of
them being a drunken man, and the other a lewd woman, his
former mistress, to whom he had previously given money, and
who was endeavoring to obtain more. It also appears that he
was unwilling for his sister to leave him, and some of the wit-
nesses quote her as saying he displayed weakness by shedding
tears when she did go away from home, leaving him to the care
of others. But there is no evidence showing, or from which it
can reasonably be inferred, that any of the devisees acquired such
dominion or influence over him as deprived him of the power to
dispose of his estate in accordance with his own wishes; and in
view of the claims of other relations, and without the existence
and actual exercise of such dominion, as has often been held by
this court, he must be regarded as executing the will without un-
due influence; for neither mere appeals to the affections, nor
arguments addressed to the understanding, even when effective,
amount to undue influence, in the meaning of the law. There
was, however, according to the evidence, no other influence ex-
erted or appeal made by the devisees than such asallectionate care
and attention offered, which the law upholds rather than con-
demns. In our opinion, the evidence in this case shows clearly
that F. M. Lisle had testamentary capacity, and freely and with-
out undue influence executed the paper in contest, and it should
be held his true last will and testament. Wherefore the judg-
ment must be reversed, and, as the verdict is not sustained by the
evidence, the cause is remanded, with directions to the lower
court to dismiss the appeal from tl rder of the county court,

probating and admitting to record the paper as his will.

108 UNDUE INFLUENCE. — FRAUD.

UNDUE INFLUENCE.
natter of Will of Budlong.

New York Court op Appeals, 1891.
(126 N. Y. 423.)

O'Brien, J. — Milton Budlong died on the 20th day of April,
1880, having made a will on the 4th of January previous, in
which he disposed of his real and personal estate, amounting to
considerably over $50,000. The validity of this will was the sole
question involved in these proceedings. He left a widow, three
sons, and three daughters surviving, who were the natural objects
of his bounty in the distribution of his estate. The will provided
for the comfortable support of the widow, according to her station
in life, which support was in lieu of dower, and made a charge
upon the real estate. To one of the daughters he devised two
houses and lots in the village of Fairport ; to another he gave a
money legacy of $5,000. He gave the residue of his real and
personal estate to two of the sons, in the proportion of one-third
to one and two-thirds to the other, the larger share, however, be-
ing chargeable with a legacy of $5,000 to the third son, Levi S.
Budlong. To the other daughter, Mrs. Louisa J. Cole, who is
the contestant of the will, he gave a legacy of five dollars. The
three sons were named as executors, and, having petitioned the
surrogate of Monroe County to admit the will to probate, the
daughter above named filed objections that the instrument was
not the will of the deceased ; that at the time of its execution he
was not capable of making a will, and that the proponents, or
some of them, procured its execution by means of deceit, fraud,
and undue influence. Upon a trial, in which a large volume of
testimony was taken, the surrogate made a decree adjudging the
will to be valid and admitting it to probate. While the case was
pending before the surrogate, the contestant died, and her heirs
at law were substituted in her place. The General Term, upon
their appeal, reversed the judgment, and directed a new trial
upon two specific issues of fact by a jury. These questions were
whether the deceased was of sound mind at the time of executing
the instrument, and whether its execution was procured by fraud
and undue influence. The new trial resulted in a verdict of the
jury, finding that the deceased was of sound mind when the in-

UNDUE INFLUENCE. 109

strument was executed, and capable of making a will, but that its
execution was procured by undue influence and fraud. The judg-
ment in favor of the contestants entered upon this verdict, has
been affirmed by the General Term. [The Court here state the
terms and scope of the notice of appeal, and discuss the limits of
their power to review ; and then proceed.] The only record that is
properly before us is that of the trial at the Circuit ; and we can re-
view only the judgment entered thereon and subsequent orders and
proceedings. The judgment is based upon a finding by the jury
that the instrument purporting to be the will of the deceased was
not his free and voluntary act, but the result of undue influence
and fraud, by means of which his mind was prejudiced against
one of his children by one or more of the others, and his natural
affection for her perverted. It must be admitted that the jury
would have been warranted in taking a contrary view of the facts,
but at the same time their finding is not, by any means, so desti-
tute of evidence for its support as to authorize this court to inter-
fere. The deceased was seventy-nine years old when he made
the will. His mental and physical powers, which had been re-
markably strong and vigorous through life, began to weaken. He
was attacked with a severe illness, from which it was supposed by
the family he could not recover, and it was during this illness and
in expectation of death as the result of it, that the will was exe-
cuted. The two sons who received the greater part of the estate
were with him during his sickness, and one or both of them pro-
cured the attorney who drew the instrument. There was some
proof of his declarations, made shortly before this illness, that he
did not intend to make a will, but to die intestate, to the end that
all his children should share equally in his estate under the law of
the State. The two sons who were preferred were men of large
property in their own right, and up to a time not long before the
will was made, the acts and declarations of the father tended to
Bhow that all his children were equally dear to him. The claim
..I' the contestants was that, the sudden change in the father's affec-
tions towards his daughter, which resulted in such an apparently

unjust discrimination against her, as appears on the face ol the
wiil, was broughl about by means of a letter shown and read to

him by another daughter. Mrs. Hunt, a short time before the exe-
cution of tin; instrument. This letter was one of the last of a

110 UNDUE INFLUENCE. — FRAUD.

series of events which were pressed upon the jury as proof that
the father's affections had become alienated from his daughter,
the contestant, by misrepresentation, resulting in ignoring her in
the final distribution of his property. It appeared that some
nineteen years before the death of the father, Levi S. Budlong,
one of the sons, married a domestic in the family. The father
felt humiliated and grieved in consequence of this alliance, threat-
ened to disinherit his son, and refused to be reconciled to him or
his wife. After the lapse of some time his attitude towards them
softened, and he became more friendly, regarding the marriage as
an accomplished fact, and manifesting a disposition to make the
best of it. The marriage, however, between the parties them-
selves proved to be an unhappy one. There is evidence in the
case tending to show that the husband ill treated the wife, and
that Mrs. Cole, his sister, was a witness to at least one violent as-
sault upon her, and that she on that occasion reproached her bro-
ther for such conduct. During the year previous to the execu-
tion of the will, Levi went to the State of Iowa, for the purpose
of obtaining a divorce from his wife, on the ground of cruel and
inhuman treatment. In this controversy the old aversion of the
father towards the marriage revived, and his feelings were strong-
ly enlisted on the side of his son and in favor of the divorce. But
it appears that the wife resisted the proceedings for divorce, con-
sulted counsel in this State, followed the husband to Iowa, and
materially interfered with his plans, if she did not succeed in en-
tirely defeating them. This was a bitter disappointment to Levi,
and he attributed his failure to the instigation, assistance, and
advice of Mrs. Cole to his wife, or, at least, pretended that she
had joined his wife in opposition to him. On the 2d of October,
1879, Levi addressed a long letter from Iowa to his other sister,
Mrs. Hunt, who lived near her father. In this letter he took
rather a gloomy view of the result of the divorce suit, which ap-
peared to be pending, described the visit of his wife to the West,
and its effect upon the suit, and reflected bitterly upon the con-
duet of Mrs. Cole in assisting and advising his wife, with the re-
sult of bringing much trouble and disappointment upon him. He
requested the sister, to whom the letter was written, to show it to
his father, and she complied with the request. Some proof was
given of the statements of the father after he had seen the letter,

UNDUE INFLUENCE. Ill

tending to show ill feeling toward Mrs. Cole for joining in the
contest against her brother, who was described by the father as
his favorite son. Proof was submitted to the jury, consisting
mostly of circumstances and facts, tending to show that the re-
flections upon Mrs. Cole, contained in the letter, were substan-
tially, if not wholly without foundation in fact, and that the writer
intentionally misrepresented her conduct.

Some proof was also given of declarations made by Levi, tend-
inis to show that he had advised his father to make a will, and
that if he left Mrs. Cole anything, he would litigate with her as
long as he had a dollar to spend in that way. The letter and the
other evidence in the case furnished some proof that Levi at-
tempted to, and did, create in the mind of the testator a feeling
of prejudice and aversion towards his daughter, with reference to
the disposition of his property, which found expression in the
will, bo far as it relates to her. The court instructed the jury
that if Levi wrote the letter, knowing that its statements were
untrue, with the design that it should reach his father and influence
him in the disposition of his property, and that it did in fact
influence him to disinherit Mrs. Cole, then a case of undue in-
fluence and fraud was made out. But that if they were not false,
and were not designed to, and did not in fact, influence the father
in the disposition of his property, then the letter was harmless.
Sufficient reference has been made to the evidence to show that
the main question in the case, and around which the parties con-
tended, was one of fact that must be regarded as having been put,
at rest by the verdict of the jury. The counsel for the propo-
nents, by exceptions taken to the charge above referred to, and in
the argument in this court, contends that the rule stated by the
learned trial judge; was erroneous. His position is that as the
statements in the letter, whether true or false, and with whatever
intent written, related solely to the relations and conduct of Mrs.
< Sole towards her brother, and in no manner to her feelings, con-
duct, or relations towards her father, they could have no connection
with the will, lmt related to matters entirely extraneous t<> it.

That at m08l tin- statements could not- be regarded as anything

beyond the complaints of one child against another to the lather,
without reference to Che disposition of property, and, therefore,
could not legally affect any will subsequently made. The undue.

112 UNDUE INFLUENCE. — FRAUD.

influence and fraud which the law guards against may be exercised
in an almost infinite variety of ways. Prejudice and aversion to
a child may be created in the mind of a testator by misrepresenta-
tion of the conduct and feelings of this child towards another
which, in connection with other facts, such as were shown in this
case, may be sufficient to affect the validity of a will in which the
child in regard to whom the misrepresentations were made, is
ignored in the distribution of the father's estate by will, and this
is especially true when no other reason is apparent for a grossly
unjust and unequal division among children, with an apparently
equal claim upon the testator's bounty. (Tyler v. Gardiner, 35
N. Y. 559 ; Red. Am. Cases on Wills, note p. 522.) In the course
df a very clear and, on the whole, impartial charge, the learned
judge who presided at the trial, said to the jury that " if, under
all the circumstances of the case, you find that this will was un-
natural in its provisions and inconsistent with the duties and
obligations of the testator to the different members of his family,
it imposes upon the proponents the duty of giving some reasonable
explanation of its unnatural character, or at least of showing that
it was not the result of mental defect, obliquity, or perversion."
The counsel for the proponents excepted to this part of the charge.
It must be read in connection with what preceded, in which the
court said that though the will might have been grossly unjust in
its provisions, yet that fact was of no consequence if it was satis-
factory to the party who made it, as every man had the right to
dispose of his property according to his own will. That if it was
the testator's preconceived design and intention, calmly entered
into, to disinherit his daughter, Mrs. Cole, he had a perfect right
to do so, and none of us have any right to complain of the exercise
of that right, provided in doing so he exercised his own will and
was not influenced by the will of another. The fair construction
of the portion of the charge excepted to is not that the unequal
division of the testator's property, apparent on the face of the
will, raised a presumption of undue influence or fraud, which the
proponents were called upon to explain; but, if upon all the
proof in the case, the jury should find that the will was in fact
contrary to the dictates of natural affection, and was, under all
the circumstances, unnatural in its dispositions, so far its pro-
visions would be evidence of mental defect, obliquity, or perver-

BURDEN OF PROOF. 113

sion of mind which would require explanation. Thus understood
and read in connection with the other propositions, that part of
the charge which was the subject of this exception was not objec-
tionable. A learned author on wills has stated the principle in
the following language, which we think expresses substantially
the same idea as that intended to be conveyed by the charge, if
it does not go even farther : " But gross inequality in the disposi-
tions of the instrument, when no reason for it is suggested either
in the will, or otherwise, may change the burden and require
explanation on the part of those who support the will to induce
the belief that it was the free and deliberate act of a rational,
self-poised and clearly disposing mind." (1 Kedf. on Wills, 557 ;
Redf . Am. Case on Wills, 298, note.) There are numerous other
exceptions in the record, but we think they were correctly dis-
posed of in the court below (54 Hun 131), and do not call for
any special notice here.

The judgment should be affirmed, with costs payable out of the
estate.

All concur.

Judgment affirmed.

UNDUE INFLUENCE.— MEANING OF TERM— BURDEN OF PROOF.

Boyse v. Rossborougli.

House of Lords, 1856, 1857.
(6 H. L. C. 2.)

This was an appeal from a decree and orders of the Court of
Chancery in Ireland, based on the verdict of a jury, hostile to the
paper propounded as the will of Coesar Colclough. Various ques-
tions were involved, and among others the question whether the
jury had been properly instructed on the law of undue influence.
On this subject the following often-quoted portions are given from
the opinion of

The Lord Chancellor: " The difficulty of deciding such a ques-
tion arises from the difficulty of defining with distinctness what is
undue influence. In a popular sense we of ten speak of a person
exercising undue influence over another, when the influence cer-
tainly is not of a nature whieh would invalidate a will. A voiinir

man is often led into dissipation by following the example of a
-

114 UNDUE INFLUENCE. — FRAUD.

companion of riper years, to whom he looks up, and who leads
him to consider habits of dissipation as venial, and perhaps even
creditable; the companion is then correctly said to exercise an
undue influence. But if in these circumstances the young man,
influenced by his regard for the person who had thus led him
astray, were to make a will and leave him everything he possessed,
such a will certainly could not be impeached on the ground of un-
due influence. Nor would the case be altered merely because the
companion had urged, or even importuned, the young man so to
dispose of his property ; provided only, that in making such a will
the young man was really carrying into effect his own intention,
formed without either coercion or fraud.

" I must further remark that all the difficulties of defining the
point at which influence exerted over the mind of a testator be-
comes so pressing as to be properly described as coercion, are
greatly enhanced when the question is one between husband and
wife. The relation constituted by marriage is of a nature which
makes it as difficult to inquire, as it would be impolitic to permit
inquiry, into all which may have passed in the intimate union of
affections and interests which it is the paramount purpose of that
connection to cherish ; and this is the case with which your Lord-
ships have now to deal.

" In order, therefore, to have something to guide us in our in-
quiries on this very difficult subject, I am prepared to say that
influence, in order to be undue within the meaning of any rule of
law which would make it sufficient to vitiate a will, must be an
influence exercised either by coercion or by fraud. In the interpre-
tation, indeed, of these words, some latitude must be allowed. In
order to come to the conclusion that a will has been obtained by
coercion, it is not necessary to establish that actual violence has
been used or even threatened. The conduct of a person in vig-
orous health towards one feeble in body, even though not unsound
in mind, may be such as to excite terror and make him execute as
his will an instrument which, if he had been free from such influ-
ence, he would not have executed. Imaginary terrors may have
been created sufficient to deprive him of free agency. A will thus
made may possibly be decribed as obtained by coercion. So as to
fraud. If a wife, by falsehood, raises prejudices in the mind of
her husband against those who would be the natural objects of his

BURDEN OF PROOF. 115

bounty, and by contrivance keeps him from intercourse with his
relatives, to the end that these impressions which she knows he
had thus formed to their disadvantage may never be removed,
such contrivance may, perhaps, be equivalent to positive fraud,
and may render invalid any will executed under false impressions
thus kept alive. It is, however, extremely difficult to state in the
abstract what acts will constitute undue influence in questions of
this nature. It is sufficient to say, that allowing a fair latitude of
construction, they must range themselves under one or other of
these heads — coercion or fraud.

''One point, however, is beyond dispute, and that is, that where
once it has been proved that a will has been executed with due
solemnities by a person of competent understanding, and appar-
ently a free agent, the burthen of proving that it was executed
under undue influence, is on the party who alleges it. Undue in-
fluence cannot be presumed, and, looking to the evidence in the
present- case, I am unable to discover evidence warranting the
conclusion at which the jury arrived, supposing them to have pro-
ceeded on the ground of undue influence

" The most I can find, if indeed that can be found, is evidence
to show that the act done was consistent with the hypothesis of
undue influence; that the instrument, though apparently the ex-
pres>ion of his genuine will, might in truth have been executed
only in compliance with the threats or commands of his wife, or
that he had been led to execute it by unfounded prejudices art-
fully in>tillcd into or cherished in his mind by his wife against
those who would otherwise have been the probable objects of his
bounty.

" Hut in order to set aside the will of a person of sound mind,
it is not sufficienl to show that the circumstances attending its ex-
ecution an- consistent with the hypothesis of its having been ob-
tained by undue influence. If musl be shown that they arc incon-
sistent with a contrary hypothesis. Can it be truly said thai there
i- any such inconsistency here I

•■ The undue influence musl be an influence exercised in relation
to the will itself, not an influence in relation to other matters
or transactions, lint this principle musl not bo carried too far.

Where a jury sees that at and mar the time when tlie will sought,

to hi' impeached was executed, the alleged testator was 3 in other

116 UNDUE INFLUENCE.— FRAUD.

important transactions, so under the influence of the person ben-
efited by the will, that as to them he was not a free agent, but
was acting under undue control, the circumstances may be such as
fairly to warrant the conclusion, even in the absence of evidence
bearing directly on the execution of the will, that in regard to that
also the same undue influence was exercised. But even allowing
the utmost latitude in the application of this principle, I feel com-
pelled to say that I do not discover the proof of anything sufficient
to show undue influence in the obtaining of this will

" On the grounds, therefore, Which I have pointed out [including
much not here quoted], I am of opinion that the Lord Chancellor
of Ireland was wrong in refusing the motion for a new trial. The
consequence is, that the order of the 18th April, 1853, refusing
the new trial, must be discharged, and the cause must be remitted
back to Ireland, with a declaration that a new trial ought to have
been ordered." ....

Orders and decree reversed, with declaration and remit.

Lords' Journals, 13th March, 1857.

UNDUE INFLUENCE.— BURDEN OF PROOF.
In re L.iney'8 Will. 1

Surrogate's Court, Monroe County, New York, 1890.
(13 N. Y. Supp. 551.)
Proceedings to revoke probate.

Adlington, S. — This decedent was an illiterate, intemperate,
credulous old man, past eighty years of age. He was feeble both
in body and mind, subject to certain delusions, and, while proba-
bly of sound mind in a strictly legal sense, was so feeble in will
and intellect as to be easily influenced and controlled by other
people. During the last half year of his life he had executed three
wills, the last of which is now the subject of controversy. By the
first two wills he had given to his son and grandchildren nearly all
his property, and in making such wills had shown much readiness to
heed the suggestions of outsiders as to the form of his testament-
ary dispositions and the appointment of executors. Within two

1 Affirmed by the Supreme Court (38 State Rep. 1022), and by the Court of
Appeals (43 N. Y. State Rep. 961).

testator's declarations before execution. 117

weeks after the date of the second will, and while temporarily so-
journing in the house of a friend, the third will is executed by him,
giving the great bulk of his estate to that friend and his wife. No
satisfactory reason appears for the sudden change of purpose in this
feeble old man. Upon the persons claiming to benefit by a will
made under circumstances such as surrounded this transaction by
an aged and feeble-minded man, the law devolves the duty of
proving that the instrument was the voluntary outcome of the de-
cedent's own wishes, and was not procured by the improper influ-
ence of the beneficiaries. Unless this is satisfactorily shown, the
presumption arises that the will is the result of undue influence or
fraud, and it should not be allowed to stand. Marx v. McGlynn,
88 N. Y. 357 ; Mowry v. Silber, 2 Bradf. Sur. 133 ; Will of Claus-
mann, 24 Wkly. Dig. 226. Such fraud or undue influence is not
usually open and visible to the draughtsman of the will, or to the
attesting witnesses, but is commonly exercised behind the scene.
Mowry v. Silber, supra, 149. I think the facts and circumstances
of this case warrant inference that this will was procured by the
undue influence of the Hurrays, the chief beneficiaries under it,
and that the probate should therefore be revoked. There may be
a decree accordingly, on three days' notice.

UNDUE INFLUENCE.— TESTATOR'S DECLARATIONS BEFORE

EXECUTION. 1

Dcnison's Appeal.

Connecticut Supreme Court of Errors, 1860.
(29 Coiui. 399.)

Hinman, J. — "We think the Superior Court erred in rejecting
the evidence of the declarations made by the testator before the

ecution of Ins will, and before there was any claim that his
mind bad become impaired, that none of his property should ever
info the family of Ledyard Park. His will was directly con-
trary to what might have been expected if he was sincere in mak-
ing the declaration, :is appears by the will itself, which, in fact,
disposes of the bulk of his whole estate to Ledyard Park and his
children. The questions before the court were whether, al the

■Sec Waterman v. Whitney, riven <ni/>.

118 UNDUE INFLUENCE. — FRAUD.

time the will was made, the testator was competent to make it,
ami whether by fraudulent practices, operating upon an impaired
or enfeebled mind, he was induced to execute the instrument as
his will, when in fact it was contrary to his well-settled convic-
tions of what was a just and proper disposition of his estate, in
respect to the appellants and others standing in the same
natural relation to him as his brother Ledyard, and to one of
whom he seems to have been under some additional obligations.
Declarations and acts of kindness and affection towards a legatee
are usual and common circumstances, often relied upon in aid of
a will. They go to show that a legacy, otherwise inexplicable
upon the ordinary motives of human conduct, is a natural and
probable act, and therefore a reasonable and free one. Of course,
it would seem to follow that contrary declarations and acts must
have a contrary effect. They tend to show both imposition and
incompetency, because, where a will is made contrary to previously
declared intentions, it is such an improbable and unexpected act
as requires explanation before the mind is satisfied that it was de-
liberately and understandingly done. Such evidence may not al-
ways be very satisfactory, but we think it is admissible, and as
little liable to be misapplied as any other, and sometimes may be
very satisfactory and conclusive, especially when taken in connec-
tion with other circumstances. Should a testator dispose of his
property to personal enemies, or entire strangers, to the exclusion
of his intimate friends or relatives, it would strike the common
sense of all men as an unnatural act, and would not be believed
to be the free and voluntary act of a sound mind, without a full
and clear explanation of it. If a will made in favor of the attor-
ney or medical attendant of a testator, when drawn up by such
attorney or attendant, requires explanation to remove the suspi-
cion of imposition which otherwise attaches to it, 1 it seems to us
that a reason equally strong, though not of the same character
precisely, throws at least as much suspicion upon a will in favor
of a personal enemy, or of one whom the testator is shown to
have had a settled determination to exclude from any participa-
tion in his property. Every unnatural act is some evidence of
imbecility or insanity, as it is only by an accumulation of such

1 See Index, " Attorney."

testator's declarations before execution. 119

acts that these conditions of the mind can be established. Stand-
ing alone it may be wholly inconclusive in its character; still, the
court must receive it as evidence, or insanity could very seldom
be established. Men are not expected to give their property to
personal enemies, nor to make those of their connexions toward
whom they entertain strong feelings of dislike the principal ob-
jects of their bounty, to the exclusion, either wholly or in part, of
those standing in the same relation, and toward whom they enter-
tain feelings of attachment growing out of personal kindnesses.
Hence, nothing is more common than for judges, when comment-
ing upon cases where near relatives have been passed by, and the
property of a testator given to those unconnected with him by
blood, especially if there was enmity between the testator and
his relatives at all attributable to the faults of the survivors, to
speak of them as " conspirators against themselves," and to re-
mark that, under the state of feeling existing between them, no
one would expect to find in the will of the deceased any provision
for such survivors.

We suppose, therefore, that this evidence would have been re-
ceived by the court, if the declaration offered to be proved had
been made immediately, or but a short time before the will was
executed; but that, under the circumstances, it was considered
that the proof related to declarations made at too remote a period
to be entitled to any weight. Hence the motion states that they
were made lonu; before the deceased executed his will. That such
declarations might be made at so remote a period as to be entitled
to little if any weight, unless succeeded by other acts or declara-
tions showing that the state of feeling that called them forth con-
tinned ii]> to the time the will was executed, is undoubtedly true.
And it is equally true that they might be made under such cir-
cumstances as to indicate no settled feelings of hostility, or any
determination ever to act upon them. And perhaps, if sufficient
circumstances appeared in the motion to show that they could not
have altered the verdict had they been admitted, we mighl not
now feel called upon to advise a new trial. Bui the mere circum-
stance that they are Btated to have been made long before the will
was executed, i~, we think, wholly iusullicieut for that purpose.

If verv remote, especially if succeeded by kind feelings, the jury
would have eiven the declaration no weight, and the court mighl

120 UNDUE INFLUENCE. — FKAUD.

very properly have so advised them. But if it had been succeeded
by a long-continued state of hostile feelings, not shown to have
been changed up to the time the will was made, time would seem
rather to have added to than to have lessened its force. Indeed,
circumstances calculated to enhance or to lessen or destroy the
force of such declarations, quite too numerous to be mentioned,
will occur to every intelligent mind. When shown in evidence,
in cases as they arise, they would of course be proper for the con-
sideration of the jury, in weighing testimony such as was offered
and rejected in this case. And, in our opinion, the correct course
would have been to admit the declaration made by the testator,
and let the jury weigh it in connection with the length of time
that had elapsed since it was made, and any other circumstances,
if >any existed, calculated to strengthen or weaken it.

But if it could be admitted that the length of time which had
elapsed since the declaration was made, might be sufficient to
authorize the court to reject the evidence, so as to prevent its
being heard by the jury, it appears to us quite clear that no such
length of time is shown to have elapsed in this case. The phrase
"long before " is quite too indefinite for the purpose. To mean
anything, as applied to the subject, it would seem to call for a
length of time sufficient to allow the state of enmity which existed
when the declaration was made to subside and be succeeded by
feelings of an opposite character, and this would most probably
depend on many other circumstances besides mere lapse of time.
If the declaration was but the expression of a sudden and slight
impulse of anger, a very short time might be sufficient to show
that it had subsided, and the provocation that called it forth been
forgotten. But the court cannot enter into an inquiry as to the
attending circumstances with a view of determining upon the
admissibility of the evidence. This would be but one mode of
estimating its weight and importance under the circumstances,
which is the province of the jury alone. We think, therefore,
that on the ground of the exclusion of this evidence there must
be a new trial.

The judge, in charging the jury, stated to them that mere
inequality in the shares of the legatees standing in the same
natural relation to the testator, was not, of itself, any evidence of
unsoundness of mind or want of capacity to make a will. We do

testator's declarations before execution. 121

not think this can be complained of under the circumstances. The
expression, perhaps, is not technically correct, inasmuch as it may
be evidence, and was in fact evidence in this case, which the judge
at the time was commenting upon ; but it is clearly insufficient
evidence of itself to authorize a court or jury to set aside a will.
The object of a will is to make a disposition of property different
from what the law makes of it. And to say that it may be set
aside for a cause like this, is little else than to allow it to be
defeated because it is attempted by it to carry out the lawful
purpose for which most wills are made.

Nor can the appellants complain of the neglect of the judge to
charge the jury that the will was void on the ground that the
bequests in it were given upon conditions subversive of the
Christian religion. If the conditions were illegal they would be
void, and the legatees would take the property free from any such
restraints. We have no occasion, therefore, to examine the
character of the conditions attempted to be imposed on the legatees
under this will for the purpose of determining whether they are
invalid or not. It is enough to say of them, therefore, that while
they were of so unusual and extraordinary a character as to make
it, at least, questionable whether they were not void, as subversive
of all religion, for, whether christian or pagan, its teachers seem
by the testator to be placed on the same footing, it appears to us
that the only legitimate use which the appellants could make of
the conditions, is as evidence of unsoundness of mind arising from
the provisions of the will itself.

Open the whole case, therefore, we advise a new trial, on the
ground only of the rejection of the testimony offered to be proved
by the witness Chapman.

In this opinion the other judges concur.

New trial advised.

UNDUE INFLUENCE.— TEST A To I t'S DECLARATIONS BEFORE

EXECUTION.

Gardner v. Frieze ct al.

Rhode Island Sii-klmk Court, 1889.
(16 R. I. 640.)

Dv/rfee^ 0. J. — This i- an appeal from a decree of the munici-
pal court of the city "I Providence, admitting to probate the

122 UNDUE INFLUENCE. — FRAUD.

-will of Phoebe L. Gardner. The will was executed August 3,
\.n. 1SS6, when the testatrix was somewhat over eighty years
old. It gives the larger part of her property to three daughters,
and gives to her son, Walter S. Gardner, the appellant, only a
trifling legacy. The reasons of appeal alleged are that the will
was procured by fraud, deceit, and undue influence. On trial in
this court the probate was opposed on those grounds. In sup-
port of the will the court admitted, subject to exception, testi-
mony to the following effect, to wit: That the testatrix had told
her counsel, before the will was executed, that her said son an-
noyed her by his importunities for money ; that he had to pay
her money due to her for a dower right, and had several times
importuned her to forgive the payments ; that he had had his
share from his father's estate, and she would give him nothing ;
that she made these statements at different times during a number
of years before the will was made, said counsel having drawn one
or more earlier wills ; that she made similar statements to the
counsel's partner, and also said to him that she always intended to
give her property to her daughters, said statement having been
made to said partner some years before the will in controversy
was executed. The jury returned a verdict sustaining the will.
The case is before us for alleged error committed by admitting
said testimony.

We do not think the court erred in admitting it. Judge Red-
field, in his treatise on the Law of Wills, says : " It is every-day
practice, where probate is resisted on the ground of fraud, undue
influence, or surprise, to admit the declarations of the testator pre-
viously made as to his testamentary intentions; and that, when
the will corresponds to the declarations, it excites much less
apprehension of improper practices than when it differs from
them." 1 Redf. Wills, 567, 568. Such, so far as we know, has
been the practice in this State. [The weight of the evidence
offered on this point is, of course, another question, arising anew
in each case. Kane v. Brown (R. I.), 20 Atl. R. 10.] It seems to
us that no evidence can be more legitimate in disproof of fraud or
undue influence, especially if the declarations have been repeated
from time to time during a period of years before the making of
the will and down to the making. The practice is well supported
by authority. In Neel v. Potter, 40 Pa. St. 483, the will gave the

testator's declarations after execution. 123

testator's real estate to bis brother, Samuel Neel, and bis nephew,
James Neel. It was contested on the ground of alleged undue
influence by members of the family of the devisees. Evidence
was admitted on the part of the devisees that the testator had de-
clared at intervals during a period of many years, that he intended
to leave his farm k * in the name of Neel." The evidence was de-
cided by the Supreme Court of Pennsylvania to have been rightly
admitted. The court said : " It would strongly rebut the idea of
any such influence on the mind of the testator when making his
will, if it were shown that he made it in accordance with a lone-
cherished purpose." See, also, Starrett v. Douglass, 2 Yates 46,
51; Irish v. Smith, 8 Serg. & R 573. In Roberts v. Trawick,
17 Ala. 55, the will was impeached for fraud or undue influence,
and the court held that declarations made by the testator ten years
and repeated by him five years before its execution, going to >how
a fixed and settled purpose to make such a will, were admissible
in evidence to rebut the charge of fraud or over-persuasion. And
in Pancoast v. Graham, 15 N. J. Eq. 294, where the ground of
contest was insanity, the court held that it was confirmatory of the
sanity of the testator that his will was reasonable, and corre-
sponded with his repeated declarations. See, also, Allen v. Pub-
lic Administrator. 1 Bradf. Sur. 311 ; Patton v. Allison, 7Huin]>h.
. So, evidence of declarations repugnant to the will have been
admitted to impeach it for fraud and undue influence. William-
son v. Nabers, 14 (;.-i. 2S»;, 308 ; 1 >eniH>ns Appeal, 29 Conn. 399;
Bughes v. Hughes' Ex'r, 31 Ala. 519. If admissible to impeach,
such evident, must, of course, be admissible to support the will.
There may be a f<-\v contrary decisions, but we think that much
the more numerous decisions and the better reasons .-auction the
admissibility of the testimony. Petition dismissed.

UNDUE INFLUENCE. — TESTATOR'S DECLARATIONS AFTER

EXECUTION.— LEGATEE'S ADMISSIONS.

Shatter v*. Bumstead A others.

M\--\< Husi 1 1- >i pr] mi Judicial Court, 1868.
I Mass. 112.)
Will of Mi-- Bumstead. Probate allowed. Appeal.
Colt, J. Several questions arising upon the admission and

follow!) <m admissions and declarations.

124 UNDUE INFLUENCE.— FRAUD.

rejection of evidence at the trial are presented by this report.
One of the most important, whether we regard its practical conse-
quences, or the apparent, and to some extent real, conflict of
authority, relates to the admissibility of the declarations of the
testatrix made after the execution of the will. Such declarations
were offered to sustain the allegations of fraud and undue influ-
ence, and ignorance of its contents, and were excluded.

That the instrument which contains the testamentary disposi-
tion of a competent person, executed freely and with all requisite
legal formalities, must stand as the only evidence of such disposal,
is generally conceded. Such a will is not to be controlled in its
plain meaning by evidence of verbal statements inconsistent with
it ; nor impaired in its validity and effect by afterthoughts or
changes in the wishes or purposes of the maker, however dis-
tinctly asserted. It is to be revoked only by some formal written
instrument, some intentional act of destruction or cancellation, or
such change of circumstances as amounts in law to a revocation.

Any invasion of this rule opens the way to fraud and perjury ;
promotes controversy ; destroys to a greater or less degree that
security which should be afforded to the exercise of the power
to control the succession to one's property after death. But the
rule assumes that the will sought to be affected has once had a
valid existence. It is always liable to be impeached by any com-
petent evidence that it was never executed with the required for-
mality, was not the act of one possessed of testamentary capacity,
or was obtained by such fraud and undue influence as to subvert
the real intentions and will of the maker. The declarations of
the testator accompanying the act must always be resorted to as
the most satisfactory evidence to sustain or defeat the will when-
ever this issue is presented. So it is uniformly held that the pre-
vious declarations of the testator, offered to prove the mental
facts involved, are competent. Intention, purpose, mental pecu-
liarity and condition, are mainly ascertainable through the medium
afforded by the power of language. Statements and declarations,
when the state of the mind is the fact to be shown, are therefore
received as mental acts or conduct. The truth or falsity of the
statement is of no consequence. As a narration, it is not received
as evidence of the fact stated. It is only to be used as showing
what manner of man he is who makes it. If, therefore, the state-

testator's declarations after execution. 125

ment or declaration offered has a tendency to prove a condition
not in its nature temporary and transient, then, by the aid of the
recognized rule that what is once proved to exist must be pre-
sumed to continue till the contrary be shown, the declaration,
though prior in time to the act the validity of which is questioned,
is admissible. Its weight will depend upon its significance and
proximity. It may be so remote in point of time, or so altered
in its import by subsequent changes in the circumstances of the
maker, as to be wholly immaterial, and wisely to be rejected by
the judge.

Upon the question of capacity to make a will, evidence of this
description is constantly received ; and when the issue is one of
fraud and undue influence it is equally material. The requisite
mental qualification to make a will might exist, and be entirely
consistent with such a degree of weakness, or such peculiarity, as
would make the party the easy victim of fraud and improper
influence.

The evidence is here offered only to establish the allegations of
ignorance of the will, and of fraud and undue influence. The
verdict of the jury at a former trial having established, beyond
controversy now, that the will was made by one in possession of
the requisite testamentary capacity, its admissibility is to be con-
sidered only upon the remaining issue.

To establish the charge of fraud and undue influence, two points
must be sustained ; first, the fact of the deception practised, or the
influence exercised ; and, next, that this fraud and influence were
effectual in producing the alleged result, misleading or over-
coming the party in this particular act. The evidence under the
first branch embraces all those exterior acts and declarations of
others used and contriv< d to defraud or control the testator ; and
under the last includes all that may tend to show that the testator
was of that peculiar mental structure, was possessed of those
intrinsic or accidental qualities, was subject to such passion or
prejudice, of such perverse or feeble will, or so mentally infirm in
any respect, as to render it probable that the efforts used were
Successful in producing in the will olTered the combined result.
The purpose of the evidence in this direction is to establish that
liability of the testator t<> be easily affected by fraud «>r undue
influence, which constitutes the necessary counterpart and com-

126 UNDUE INFLUENCE. — FRAUD.

plement of the other facts to be proved. Without such proof, the
issue can seldom, if ever, be maintained. It is said to be doubtful
whether the existence and exercise of undue influence does not
necessarily presuppose weakness of mind, and whether the acts of
one who was in all respects sound can beset aside on that ground
in the absence of proof of fraud or imposition. And it is certain
that, however ingenious the fraud or coercive the influence may
be, it is of no consequence, if there was intelligence enough to
detect and strength enough to resist them.

The inquiry is of course directed to the condition at the date
of the execution of the will ; but the entire moral and intellectual
development of the testator at that time is more or less involved ;
not alone those substantive and inherent qualities which enter
info the constitution of the man, but those less permanent features
which may be said to belong to and spring from the affections and
emotions, as well as those morbid developments which have their
origin in some physical disturbance. All that is peculiar in
temperament or modes of thought, the idiosyncrasies of the man,
so far as susceptibility is thereby shown, present proper considera-
tions for the jury. They must be satisfied, by a comparison of
the will, in all its provisions, and under all the exterior influences
which were brought to bear upon its execution, with the maker
of it as he then was, that such a will could not be the result of
the free and uncontrolled action of such a man so operated upon,
before they can by their verdict invalidate it.

As before stated, the previous conduct and declarations are
admissible; and so, by the weight of authority and upon prin-
ciple, are subsequent declarations, when they denote the mental
fact to be proved. For, by common observation and experience,
the existence of many forms of mental development, especially
that of weakness in those faculties which are an essential part of
the mind itself, when once proved, imply that the infirmity must
have existed for some considerable time. The inference is quite
as conclusive that such condition must have had a gradual and
progressive development, requiring antecedent lapse of time, as
that it will continue, when once proved, for any considerable
period thereafter. The decay and loss of vigor which often
accompanies old age furnishes the most common illustration of
this. It is difficult to say that declarations offered to establish

testator's declarations after execution. 127

mental facts of this description are of equal weight, whether
occurring before or after the act in question. But, if they are
equally significant and no more remote in point of time, they are
equally competent, and may he quite as influential with the jury.

The difficulty in the admission of these subsequent statements
of the testator has been that, while competent for the purpose
above indicated, they are not, by the better reason and the most
authoritative decisions, admissible to establish elements of the is-
sue. When used for such purpose they are mere hearsay, which,
by reason of the death of the party whose statements are so of-
fered, can never be explained or contradicted by him. Obtained,
it may be, by deception or persuasion, and always liable to the in-
firmities of human recollection, their admission for such purposes
would go far to destroy the security which it is essential to pre-
serve. The declaration is not to be wholly rejected, however, if
admissible on other grounds; and it must be left to the judge
carefully to point out how far it is to be rejected or received as
evidence by the jury.

Ordinarily we should expect more or less evidence of the prior
existence of those peculiarities which the subsequent declarations
give evidence of; and in the reported cases this will generally be
found to be so. It is not necessary to decide whether, in the en-
tire absence of such evidence, subsequent declarations would ever
be competent. Where a foundation is laid by evidence tending
to show a previous state of mind, and its continued existence past
the time of the execution of the will is attempted to be proved by
subsequent conduct and declarations, such declarations are admis-
sible, provided they are significant of a condition sufficiently per-
manent, and are made so near the time as to afford a reasonable
inference that such was the state at the time in question.

The doctrines thus stated are maintained by the current of Eng-
lish and American authority.

In Provis v. Reed, ."> Bing. 435, the statements of the testator
which were offered were regarded bythe court as offered to prove
specific acta <>!' fraud and improper influence. The distinction
here suggested does not Beetn to have beeD required in the case, and
such statements were emphatically declared inadmissible by Best, .
C. J., as rendering useless the precaution of making a will. The
same doctrine is recognized, and the principle discussed, in Mar-

138 UNDUE INFLUENCE. — FRAUD.

ston v. Roe, 8 Ad. & El. 14, -where Tindal, C. J., goes somewhat
fully into the matter, although the precise question was upon the
revocation of the will.

In New York, in the case of Jackson v. Kniffen, 2 Johns. 31,
the point was raised and decided ; and the statement of the testa-
tor that he had executed the will by force and for fear of being
murdered, was rejected. The distinction taken in the more re-
cent cases between such proof of exterior facts and such proof of
mental status is not alluded to. And Spencer, J., in his dissent-
ing opinion, favors the admission of the declarations, on the ground
that they were the declarations of the sole party in interest at the
time, because no one else could have an interest in a will, living
the testator. The whole matter is discussed more fully, and the
distinctions accurately pointed out, in Waterman v. Whitney, 1
Kernan 157 ; (11 N. Y. 157 ; given ante). Subsequent declara-
tions inconsistent with the will, in connection with other evidence
tending to prove want of mental capacity, are held by Selden, J.,
and a majority of the court, to be competent, upon a full review
of the decisions.

In Connecticut the same rule prevails arid was stated in Corn-
stock v. Hadlyme Ecclesiastical Society, 8 Conn. 254.

In Vermont, in the case of Robinson v. Hutchinson, 26 Verm.
47, where the question is fully considered, Isham, J., says : " We do
not perceive any serious objection to the admission of this testi-
mony, under that limitation, when the declarations were made so
near the time of the execution of the will that a reasonable con-
clusion may be drawn as to the state of mind of the testatrix at
the time the will was executed. Weakness of mind arising from
advanced age, in connection with causes suggested in this case, is
progressive and permanent in character. It exists in the mind it-
self, and therefore it is that weakness of mind at the time of mak-
ing the will may be inferred from weakness subsequent, as much
so as imbecility of mind under similar circumstances."

In Moritz v. Brough, 16 S. & R. 402, the Supreme Court of
Pennsylvania held declarations admissible to show mental condi-
tion. See also McTaggart v. Thompson, 14 Pa. St. 149, 154.

In the recent case of Boy Ian v. Meeker, 4 Dutcher 274, the
whole subject is discussed. The issues there were, incapacity,
forgery of the will, fraud practised by inducing signature to a

testator's declaratioxs after execution. 129

paper without knowledge that it was a will. The court say that
upon a review of the case no doubt can be entertained of the tes-
tator's capacity. The contestants relied on the conduct and dec-
larations of the testator to show that he never knew afterwards
of the existence of the will, and therefore could not have know-
ingly executed the paper. It appears that the declarations were
offered on the broad ground' that, even if the testator had testa-
mentary capacity, yet he never executed the will, because of his
declared ignorance of any such paper. In the discussion of the
case, the court seem to regard ignorance of a fact existing at any
particular time as not evidence of a state of mind in any sense
affecting its capacity. But, however this may be, the whole case
clearly recognizes the admissibility of subsequent declarations
to prove mental condition, and is in harmony with the main cur-
rent of authority. The declarations were held incompetent in
that case, but it was upon the ground that the evidence was of-
fered to support the act of fraud charged, and had no tendency
to establish mental condition.

Two cases in North Carolina are apparently in conflict with
these authorities — Reel v. Reel, 1 Hawks 248 ; Howell v. Bar-
den, 3 Dev. 442. In the first of these the court follow, and ap-
prove -of, the dissenting opinion of Spencer, J., in Jackson v.
Kniffen, supra; and, in the last case, the court, by Ruffin, J., de-
clare themselves bound by the former decision. It does not ap-
pear what were the precise declarations in this case ; but in Reel
v. Reel, in connection with the evidence that the mind of the tes-
tator had been greatly impaired by previous habits of intoxication,
and had been weak from his youth, the declarations admitted may
be held competent, without overruling Jackson v. Kniffen. See
also Cawthorn v. Ilaynes, 24 Mo. 236; 3 Lead. Cas. in Eq. (3d
Am. ed.) 503, note; 1 Redfield on Wills, 551-501.

This discussion, though thus prolonged, may not be dismissed
without presenting another view upon which the evidence under
consideration may be competent. A will made when fraud or

compulsion is used may nevertheless bo shown to bo the free act
of the party, by proof of statements in which the will and its pro-
tons are approved, made when relieved of any improper influ-
ence or coercion. It, is always open to inquiry whether undue in-
duence in any case operated to produce the will ; and, as the will

130 UNDUE INFLUENCE. — FRAUD.

is ambulatory during life, the conduct and declarations of the tes-
tator upon that point are entitled to some weight. Indeed, the
feet alone that the will, executed with due solemnity by a compe-
tent person, is suffered to remain unrevoked for any considerable
time after the alleged causes have ceased to operate, is evidence
that it was fairly executed ; to meet which, to some extent at
least, statements of dissatisfaction with or want of knowledge of
its contents are worthy of consideration and clearly competent,
however Blight their influence in overcoming the fact that there is
no revocation.

All this evidence, under whatever view it is admitted, is com-
petent only and always to establish the influence and effect of the
external acts upon the testator himself; never to prove the actual
fact of fraud or improper influence in another.

Coming now to the application of these rules to the case here
presented, we cannot avoid the conclusion that the report shows
that evidence of the subsequent declarations of the testatrix to
the effect that the will so made was contrary to her real inten-
tions, or that she was ignorant of its contents, should have been
admitted. The character and habits of the testatrix in her better
days, the whole of her later life, with her expressed purposes and
wishes up to the time of the will, were exhibited in evidence.
With a considerable degree of physical weakness, that loss of
vigor and activity in the mind, which indicates in persons of her
habits and years the increasing infirmities and decay of old age,
was shown to exist at and before the date of the will, for the pur-
pose of increasing the probability that she was the victim of the
improper designs of others.

The precise statements are not reported, nor does it appear at
what precise time they were made, but they were offered to show
either ignorance of the contents of the will, or that they were
contrary to her real intentions, and that the will was improp-
erly obtained by the fraud and undue influence of the executors
named.

As we have already seen, this evidence was not competent as a
declaration or narrative to show the fact of fraud or undue influ-
ence at a previous period. But it was admissible not only to show
retention or loss of memory, tenacity or vacillation of purpose
existing at the date of the will, but also in proof of long-cherished

testator's declarations after execution. 131

purposes, settled convictions, deeply-rooted feelings, opinions,
affections, or prejudices, or other intrinsic or enduring peculiar-
ities of mind, inconsistent with the dispositions made in the in-
strument attempted to be set up as the formal and deliberate
expression of the testator's will ; as well as to rebut any inference
arising from the non-revocation of the instrument. They were
not rejected as too remote in point of time, or as having no tend-
ency in their character to sustain the fact claimed to exist.

In connection with the evidence thus offered and rejected the
contestants offered also the declarations and conduct of Hayden
and Shailer, named executors, subsequent to the date of the will.
And this brings us to another important question in the case.
The evidence, for the purpose for which it was offered, was, we
think, properly excluded. It was not proposed thereby to con-
tradict their testimony. The admissions of a party to the record
against his interest are, as a general rule, competent against him;
and this rule applies to all cases where there is an interest in the
suit, although other joint parties in interest may be injuriously
affected. But it does not apply to cases where there are other
parties to be affected who have not a joint interest, or do not
stand in some relation of privity to the party whose admission is
relied upon. A mere community of interest is not sufficient.
Devisees or legatees have not that joint interest in the will which
will make the admissions of one, though he be a party appellant
or appellee from the decree of the probate court allowing the
will, admissible against the other legatees. In modern practice,
at law even, the admissions of a party to the record who has no
interest in the matter will not be permitted to be given in evi-
dence to the prejudice of the real party in interest.

In tin- ease, it does not appear at what time after the date of
the will these declarations were made, whether before or after the
death of the testatrix, or before or after tin' offer of the will for

probate; and perhaps it is not material. They stand upon the

Bame ground with statements made at any time since the date

of the will, by any other devisee or legatee named in the will, or

heir at law or legatee under the former will of Is.M, whose inter-
ests are affected and who is a party to this record. Before the
death of the testatrix the interesl of .ill these parties in a will, at any

time to be revoked, was not such a direct interest as should render

132 UNDUE INFLUENCE.— FRAUD.

their admissions competent against other parties. The separate
ad missions of each, made after the act, that the will was procured
by their joint acts of fraud or undue influence, cannot be permitted
to prejudice the other. Such statements are only admissible
when they are made during the prosecution of the joint enterprise.
Admitting for the present that any interest in a will obtained by
undue influence cannot be held by third parties, however inno-
cent of the fraud, and that the gift must be taken tainted with
the fraud of the person procuring it, still it by no means follows
that the interest of the other innocent legatees should be liable
to be divested by the subsequent statements of the parties pro-
curing the will. Such a rule would violate all sense of right, and
is not sustained by the decisions.

The principal case, most often cited in support of the doctrine
that such admissions are competent, is Atkins v. Sanger, 1 Pick.
192. The will was contested on the ground that the testatrix was
not of sound miwd and had been unduly practised upon. The
declarations of one of the executors named, who were the prin-
cipal legatees, were offered to show the circumstances attending
the making of the will. Their admissibility was expressly urged
on the ground that the parties to the record could not, as the
law then was, be called as witnesses, and there was no way of
proving the facts. The chief-justice, after a short consultation
with his brethren, said the court were inclined to admit the dec-
larations as to facts which took place at the making of the will,
but added that the decision did not interfere with Phelps v. Hart-
well, 1 Mass. 72. This is the whole of the case. It is to be noted
that the case was heard before the full court without a jury.
The rule may have been less carefully laid down than it would
have been if the question had arisen on the admissibility of the
evidence in a jury trial. Under the present law of this Common-
wealth making parties to the record witnesses, illustrated in this
very case by calling the parties whose admissions were offered and
subjecting them to the cross-examination of the contestants, we
cannot think the rule now contended for would have been adopted,
as it seems to have been in Atkins v. Sanger.

In Ware v. Ware, 8 Greenl. 42, which was an appeal from the
decree allowing probate of John Ware's will, the appellee was
permitted to prove that Abel Ware, the only appellant, said, two

testator's declarations after execution. 133

or three weeks before the death of the testator, that he had his
senses. This case, so far as it permits the opinions of a party on
the question of sanity to be put in evidence against him, is in
conflict with Phelps v. Hartwell, supra ; but on a closer exam-
ination it seems to be in harmony with the law as here stated. It
does not appear that the appellant was not the sole party in in-
terest. The fact that he was alone interested is to be inferred ;
f < >r JlelUn, J., in reference to this point, says that by law the
confessions of a party may always be given against him and his
interest, but not thereby to defeat or impair the rights of others
claiming under him.

Upon principle, and by the weight of decided cases, we think
there was no error at the trial in the present case in this respect.
Clark v. Morrison, 25 Penn. State 453 ; Titlow v. Titlow, 54
Penn. State 222 ; Osgood v. Manhattan Co., 3 Cowen 612 ; Dan
v. Brown, 4 Cowen 492 ; Hauberger v. Koot, 6 W. & S. 431 ;
Thompson v. Thompson, 13 Ohio State 358 ; Blakey v. Blakey,
33 Ala. 616.

The conduct of Shailer and Playden in relation to the property
and business of the testatrix stands on the same footing with
their admissions. It had no legal tendency to establish the issue
on the part of the contestants. The act could not be invalidated,
so far as others at least were concerned, by their subsequent con-
duct. The codicil of 1857, if freely and intelligently executed,
would of itself fully establish the will of 1853. But the conduct
of either in procuring it was clearly incompetent on these issues.
All the other specific subsequent conduct offered seems to have
(•'insisted of independent and disconnected acts, not in any way
related to the making of the will of 1853. Any subsequent acts
of theirs, or of any one else, by which the testatrix was in any
wav prevented from revoking or making any change in her will
if she desired, or by which her relatives and friends were pre-
vented or debarred in any way from free access to and communi-
cation with her, were expressly allowed to be shown. The deed
of l s .">7 to Bayden, the consideration for which was inquired of

in hifl Cr088 ' niiiiiation, was properly excluded as not tending to

contradicl his testimony. The facts inquired of were noi material
to the i sue, and were not ..pen to contradiction. The auditing
of Eayden'e accounts by Shailer in l s .">.~>, her dissatisfaction with

134 UNDUE INFLUENCE. — FRAUD.

and continued employment of Hayden, proposed to be proved in
cross-examination of Shatter, were circumstances too remote in
point of time to have any bearing upon the mental status at the
date of the will.

It was further objected that Hayden and Shatter were not com-
petent witnesses under the statute. But this is not a case where
one of the original parties to the contract or cause of action in
issue ami on trial is dead. They are not parties in a representa-
tive capacity. There was no cause of action in existence till the
death of the testatrix. The controversy is between living parties.
The testatrix is in no sense a party to the original cause of action.
Her act was only the subject-matter of the investigation. The
rule contended for would exclude parties on both sides in all
cases where litigation should arise, growing out of the act of an-
other during life. We cannot construe the proviso of the statute
so as to exclude as witnesses all those who may be parties on one
side or the other in all probate appeals like this ; and we find no
error in the ruling. Gen. Sts., c. 131, sec. 14. Baxter v.
Knowles, 12 Allen 114.

Facts showing the mental and moral condition of the testatrix
in July, 1854, and at various periods subsequent to that time,
were offered, and excluded as being too long after the date of the
will. To a great extent, it must be left to the presiding judge to
determine upon the facts before him how far evidence of this
description may have a tendency to throw light on the fact to be
found, namely, the actual condition at the date of the will. Some
limit must of course be had in applying practically the rules
which govern the admission of this evidence. We do not perceive
any reason to differ from the judge in the limit here applied.
After July, 1854, her mental condition must have greatly changed.
Her advanced age, and the paralysis with which she was at that
time seized, seem to make that period a proper limit for the evi-
dence offered ; and we see no reason for sustaining this excep-
tion.

In regard to the offer to show that several of the family of the
testatrix had been in advanced age affected by paralysis, accom-
panied by an enfeebling of the mental and moral powers, and
that it was a family tendency, we are of opinion that no sufficient
foundation w r as laid for the admission of such evidence. In ques-

TESTATOR'S DECLARATIONS AFTER EXECUTION. 135

tions of sanity, proof of hereditary tendency is competent in sup-
port of evidence of the existence of insanity in any given case.
Here the sanity of the testatrix is not to be called in question.
Her complaints of numbness in 1851, her physical weakness and
mental inactivity prior to the attack of paralysis in 1851, do not
justify the admission of the proof offered of hereditary tendency.
No case is cited in which such evidence has been admitted in aid
of the proof showing mere weakness of mind or eccentricity. 1
Redfield on Wills, 156, 15T; Baxter v. Abbott, 7 Gray 75. *

The only remaining point arises upon the manner in which the
issues as framed were submitted to the jury by the presiding
judge. It is claimed to be the duty of this court now to revise
the order, upon exceptions or appeal taken in the usual way. In
the matter of framing issues, proceedings in probate appeals are
conducted in accordance with the rules and practice in equity.
The findings of the jury in such cases are availed of to inform the
court in matters of controverted facts which may become material
in settling the tinal decree. They may be disregarded, in whole
or in part, if on the final hearing they are not deemed important
or relevant ; or such new issues may from time to time be framed
and submitted as a just regard to the rights of all may seem to
require.

Three testamentary papers were here produced, purporting to
have been executed in three different years. The like four issues
were presented as to each. The court, having regard to the fact
alleged, that the mental capacity of the testatrix had been seri-
<>ii.-ly affected by severe illness between the years last named,
ordered the issues tried separately; and those relating to the will
of 1853 have been accordingly twice tried. Two of the issues at
the tir-t and two at the last trial were found in favor of the
will. We cannot see that any injustice has been or is likely to
be done by submitting the issues in this way to the jury ; or that
the trial of the issues upon the will of 1853 ought not now to he
completed.

The exceptions having been sustained in the single respect
above stated, the last verdicl of the jury upon the issues relating
t<» the will of L853 is therefore sel a ide, and a new trial ordered
upon the si nd and third issues relating to that will.

136 UNDUE INFLUENCE. — FRAUD.

UNDUE INFLUENCE.— TESTATOR'S DECLARATIONS BEFORE
AND AFTER EXECUTION.

Iler§ter v. Herster.

Pennsylvania Supreme Court, 1889.
(122 Penn. St. 239.)

Clark, J. — This issue, devisavit vel non, was framed in the
Court of Common Pleas of Northampton County to test the valid-
ity of the last will and testament of Andrew Herster, deceased,
and of the several codicils thereto. The will was made and ex-
ecuted 13th June, 1874 ; the first codicil, 28th August, 1878 ; and
tfre second, 7th May, 1880. Andrew Herster died 27th May,
1882, at the age of 81 years, possessed of an estate estimated at
$200,000, leaving surviving six children, viz. : Daniel Herster,
Jacob Herster, Susan Kelper, Eliza Reich, Andrew J. Herster,
and William Henry Herster. Of these, Andrew J. Herster is the
principal devisee and proponent of the will, and William Henry
Herster and Eliza Reich are the contestants. The only matter in
issue under the pleadings is, whether'or not the will and the codi-
cils, or any of them, were procured by fraud or undue influence,
the contestants who were plaintiffs below, maintaining the affirm-
ative, and the proponents, the negative of that issue. That An-
drew Herster was, at the time of making the will and codicils, of
sound and disposing mind and memory, is therein assumed. No
questions can be made as to this ; the only proper matter for con-
sideration being whether that mind and memory were in these
testamentary acts, or in any of them, led captive by the artifice
and undue influence of Andrew J. Herster, or of any other per-
son in his interest, so that the written papers do not express the
testator's true purpose in the disposition of his estate.

Undue influence is very nearly alike to fraud, yet they are not
identical. While undue influence comprehends fraud, fraud does
not embrace every species of undue influence. 1 Redf. Wills,
500/i. It is only necessary, therefore, to consider the case upon
the mere comprehensive question of undue influence, for this will
embrace all sorts of artifice, imposition, or bad faith which char-
acterize acts of fraud. Undue influence exists wherever through
weakness, ignorance, dependence, or implicit reliance of one on

DECLARATIONS BEFORE AND AFTER EXECUTION. 137

the good faith of another, the latter obtains an ascendency which
prevents the former from exercising an unbiased judgment. To
affect a will, it must, in a measure at least, destroy free agency,
and operate on the mind of the testator at the time of making the
will. The rule is well and forcibly stated by our Brother Gordon
in Tawney v. Long, 76 Pa. St. 115, as follows: " Undue influ-
ence, of that kind which will affect the provisions of a testament,
must be such as subjugates the mind of the testator to the will of
the person operating upon it ; and, in order to establish this, proof
must be made of some fraud practiced, some threats or misrepre-
sentations made, some undue flattery, or some physical or moral
coercion employed, so as to destroy the free agency of the testa-
tor ; and these influences must be proved to have operated as a
present constraint at the very time of making the will." It may,
in the language of the learned judge below, be exercised by means
of misrepresentation and falsehood, directed against the persons
who would be the objects of the testator's bounty, if the misrep-
resentation and falsehood so poisoned the mind of the testator as
to destroy his free agency. It is a matter of common knowledge
that a person of feeble intellect is much more easily influenced by
undue means than is one of a vigorous mind. Therefore, in pass-
ing upon a question of undue influence the strength and condition
of the mind may become a proper, indeed an essential, subject of
inquiry; for, although weakness, whether arising from age, in-
firmity, or other cause, may not be sufficient to create testamen-
tary incapacity, it may nevertheless form favorable conditions for
the exercise of undue influence.

It is contended on the part of the contestants that although
Andrew Herster must be presumed to have had testamentary ca-
pacity at the time of the making of this will and the codicils
thereto, — and thai cannot he questioned in this issue, — yet both
his mind and body had iu fact been greatly impaired by tin' in-
firmity of age and disease; that he was 70 years of age when he
made hi- will. 80 when he made (he first codicil, and 82 when he
made tin- second codicil, and that he was aged si years when he
died : that for 25 years he had suffered from a progressive general
paresis or softening of the brain; that he had an apoplectic seiz-
ure a short time before the execution of the will ; and that Ids
memory was much impaired and his mind generally enfeebled.

138 UNDUE INFLUENCE. — FRAUD.

In other words, that although the testator's mind was not enfee-
bled to the extent of testamentary incapacity, yet it was so weak-
ened by disease and old age as to make the testator an easy prey
to the artifice of his son, and that Jackson took advantage of his
father's weak condition to procure the will to be made in his fa-
vor. The proponents of the will, on the other hand, contend that
the testator was of a strong, robust, and resolute mind ; that al-
though advanced in years, and afflicted to some extent with the
disease stated, he conducted business successfully and extensively
throughout the whole period of his affliction, and until two weeks
of his decease ; that he was engaged extensively and profitably in
the purchase and sale of cattle ; that he kept his own accounts,
made his own calculations, and drew his own checks in payment
until the month in which he died ; that within a year prior to his
death he paid to three of the witnesses alone for cattle over
$26,000, and within four months and one-half before his death he
paid out with his own checks to different persons for cattle over
$11,000; that it was the result obtained in his various business
transactions after the making of his will which made further tes-
tamentary provision necessary ; that Jackson, his son, had been a
good boy, had remained at home with his parent, and had ren-
dered him valuable and important services ; that the old man had
a high opinion of his son's business capacity, and on that account
often deferred to his judgment in business matters ; and that the
provisions in his will, and the codicils in his favor, were a free
and voluntary act of his father, prompted, perhaps, by his affec-
tionate regard for his son, and a consideration of his personal ser-
vices and worth. It will be seen, therefore, that undue influence
is the substantial fact affirmed on the one side and denied on the
other ; imbecility or weakness of mind being a collateral or ex-
traneous question arising out of the proofs.

The declarations of the testator, made within a reasonable time
before and after the execution of the will, have always been re-
ceived in evidence upon a question of testamentary capacity, to
show the state and condition of the testator's mind ; and, if rea-
sonably connected in point of time with the testamentary act, we
cannot see any reason why they would not be admissible to estab-
lish the same fact in an issue raised upon the exercise of fraud and
undue influence in the procurement of it. Such declarations can-

DECLARATIONS BEFORE AND AFTER EXECUTION. 139

not have any force, however, in establishing the substantive fact
of undue influence. " It is certain such testimony is not admis-
sible for the purpose of proving any distinct fact depending upon
the force of the admission, since the testator is not a party to the
question of the validity or interpretation of his will." Comstock
v. Hadlyme, 8 Conn. 254 ; 1 Redf. Wills, 539. " The object of
this testimony is to show such a state of weakness or vacillation
of mind as rendered the testator an easy victim either of artifice,
force, or fraud. Such declarations afford the. most satisfactory
evidence, not only of the strength of mind, but often exhibit those
peculiar phases of the mind and of the affections, which especially
expose the testator to be overcome by the terror of threats or the
seductions of flattery. And although these declarations will nec-
essarily afford some ground forjudging in regard to the effect of
any attempts of undue influence, that element in the testimony,
not being legitimate, can only be eliminated by the judge in sum-
ming up to the jury." Redf. Wills, 548. "It is apparent that
the declarations of the testator that he did not execute his will
freely, that he never intended to have made such a will, and
never should but for the influence of those persons in whose
favor it is made, and similar declarations, which are very
common in the testimony elicited in testamentary causes, can be
of no force whatever as testimony tending to establish the truth
of the declarations. In that light, such declarations are mere
hearsay, depending for their force upon our confidence in the
veracity of the person making them, and in most cases easily ex-
plained, without regard to the question of their truth, and which
have always been rejected as evidence." Id. 550. Testamentary
capacity being the normal condition of a person of full age, it fol-
lows that, in the absence of evidence of undue influence, proof of
the testator's declarations should be excluded, or wholly disre-
garded on that question. Therefore, in Moritz v. Brough, 16
Berg. & It. 403, it was held that to set aside a will, duly executed
by a man of competent understanding, evidence is not admissible
of declaration- made ley liim that he intended differently and was

importuned by his wife; or of the wife's high temper and impor-
tunities with tli<' testator in relation to his will. So in Hoshauer
v. Hoshauer, 26 Pa. Si. 404, the testator's mental capacity was

not disputed. The will w.c made in 1853. To show undue in-

140 UNDUE INFLUENCE. — FRAUD.

fluence the contestants offered to prove that in 1855 the testator
said he had " made a will," that he had " made it as John wanted
it "; that he had " to make it as John wanted it "; and that he
" knew it was wrong." The offer was rejected, and upon error
it was held that it was rightly rejected. Mr. Justice Lowrib, de-
livering the opinion of the court, said : " This could not prove
fraud in procuring it, though nearly all the estate was given to
John's children, himself getting a dollar. An instrument that
for two years remained subject to change or cancellation at the
maker's pleasure cannot be set aside on such a declaration. A
man who is competent to make a will can so easily correct any of
its provisions, however obtained, that it is hard to imagine any
kind of declarations of his that would prove it to be fraudulent,
when any considerable time has intervened between its execution
and his death." So, also, in McTaggart v. Thompson, 14 Pa. St.
149, where the validity of a will was questioned both for want of
testamentary capacity and for exercise of undue influence, the
contestants offered to prove the testator's declaration, made after
the execution of the will, to the effect that in the making of
it he has been imposed upon by those in whose favor it was made.
The offer was refused, and upon that ground the case was removed
to this court. " The court appears," said Mr. Justice Rogers,
" to have excluded the testimony because they chose, contrary to
the offer, to suppose it was designed to prove duress, for which
purpose it would be clearly inadmissible. But the court had no
right to act on the supposition that the testimony was proposed
in bad faith. As it was offered for a legitimate purpose, for that
purpose it ought to have been received. If attempted to be used
for a different purpose the correction was in their own hands ;
the counsel would subject themselves to the severest censure. If
the facts were as represented, it was evidence of imbecility of in-
tellect, amounting almost to fatuity." To the same effect is the
current of authorities in other States. Robinson v. Hutchinson,
26 Vt. 38 ; Richardson v. Richardson, 35 Vt. 238 ; Shailer v.
Bumstead, 99 Mass. 112 ; Kinne v. Kinne, 9 Conn. 102 ; Provis
v. Reed, 5 Bing. 435 ; Jackson v. Kniffen, 2 Johns. 31 ; Pember-
ton's Will, 4 Atl. Rep. 770 ; Waterman v. Whitney, 11 K Y.
157; Stevens v. Yancleve, 4 Wash. C. C. 265. In order that the
declarations of the testator may be considered at all upon issue of

DECLARATIONS BEFORE AXD AFTER EXECUTION. 141

undue influence, there must be proof of other facts and circum-
stances indicating circumvention or fraud in the procurement of
the will (Tawney v. Long, supra), for they are received, not as
proof of the fact, but merely to show that there are special
grounds for apprehending, and unusual opportunities for exercis-
ing, undue influence, and to illustrate the effect of such influence
after its existence has been established, unless, perhaps, as part of
the res gestae, when they are made at the very time of the execu-
tion of the will, and form part and parcel of the transaction
(Smith v. Fenner, 1 Gall. 172; Boylan v. Meeker, 28 N". J. Law
274 ; Harrison's Appeal, 100 Pa. St. 458). The weakness of
mind and consequent susceptibility to influence which is admis-
sible in such a case must be shown to exist at the very time of the
testamentary act ; while the testator's declarations directly show
only the state of his mind when they were made. Declarations made
before and after have some significance, however, in showing infer-
entiallv the mental condition at the time of the testamentary act.
The limitations which govern the admission of this quality of evi-
dence must depend largely on the character of the unsoundness
attempted to be proved. There are types of mental unsoundness
which appear suddenly, and are of short duration, and in such
cases the proof, to be of any avail, must come near to the precise
time when the act was performed; but the decadence of old age,
and many forms of mental derangement and imbecility, are of
slow advancement, and proof of their distinct development at any
given period will afford pretty clear ground to infer their exist-
ence for a long period, either before or after, with a considerable
degree of certainty. Grant v. Thompson, 4 Conn. 203. There-
fore declarations made several years even before the execution of
a will may be shov/n to show unsoundness or imbecility of mind of
a permanent character; and declarations made after may, in like
in inner, tend to show such a fixed perversion or imbecility oi
mind as would not be likely to have occurred in any short period
of time ; and both or either may afford some just -round of opin-
ion in regard to the state of the testator's mind at the date of the
■ tamentary act. 1 Redf. Wills, 549. The court must judge in
h particular case how far it will he profitable to extend the
rule before and after the precise date in question. Grant v.
Thompson, supra. As the proof of the testator's declarations is

142 UNDUE INFLUENCE. — FRAUD.

only admissible in this case to show the state of his mind, and the
effect of undue influence, if any is shown to have existed, we can-
not say, in view of the particular type of mental unsoundness
alleged, and the peculiar circumstances of this case, that the
scope of the investigation was too wide. Of course, the objective
point of inquiry in every case is the state of mind at the precise
date of the testamentary act, but, as it is not practicable in all
cases to make that inquiry in a direct manner, some latitude of
proof must be allowed.

At the iirst trial of this case, the learned judge of the court
below instructed the jury in the most explicit and proper manner
that these declarations of the testator were not evidence at all as
to the fact of undue influence, because there was no evidence that
they were true. " For all that appears," says the learned judge,
"they may have been the expression of a mere delusion on the
part of the testator." At the second trial, however, the court
received the evidence, and submitted it to the jury, without any
qualification whatever. Whether this omission was the result of
a change of opinion respecting the force of the evidence, or was
a mere inadvertence, or whether the learned judge inferred from
the opinion of this court, delivered when this case was here
before, that such declarations were deemed proper evidence of
undue influence (11 Atl. Rep. 110), we cannot say. Of one thing
we are certain; that the failure to qualify the effect of this
evidence was fatal to the defendant's case. There is, in the con-
cluding clause of the opinion referred to, enough, perhaps, to give
the impression that the declarations of the testator, made a few
days prior to his death, as to his unsuccessful attempt to get pos-
session of his will from Lynn, followed by his exclamation on the
day of his death, "ifem Oott in Himmel, es ist alles lets, alles
letz ! " — " My God in Heaven, all is wrong, all is wrong ! " — were
deemed proper evidence of undue influence. But the law is too
well-settled on this point to admit of any doubt. The testimony
was admissible, perhaps, but it was for the consideration of the
jury only on a certain event, and then for a special purpose, to
show the state and condition of the testator's mind ; and, as the
declarations, were made eight vears after the execution of the
will, and four years and two years after the making of the codicils
respectively, and then were uttered almost in the last moments of

DECLARATIONS BEFORE AND AFTER EXECUTION. 143

the testator's life, they were, it must be conceded, of little force
or inferential effect, under the circumstances, even as to that. We
then said in advance we could not " say that the answers to the
proposed questions would not indicate the exercise of undue in-
fluence," etc. Now that the answers are before us, we can with,
out hesitation say that they are not. The defendant's counsel, by
a point more particularly directed to this branch of the evidence,
might have directed the attention of the court to the proper
application of this part of the evidence in a more direct manner
than appears to have been done; but we think the question is
raised in the answers to the defendant's fifth and sixth points.
Although these points were not directed to the precise question
now under consideration, yet the answers of the court proceed
plainly upon the assumption that the testator's declarations might
be regarded as indicating undue influence, or present constraint,
operating upon the mind of the testator in the testamentary act;
and upon this ground the judgment must be reversed.

In the former opinion of this court it was held that the evidence
was sufficient to justify a submission to the jury. The testimony
was then and is now very voluminous, the evidence embracing
over 1,000 pages of printed matter, and perhaps we did not give
it that exhaustive examination and patient study which we have
since been enabled to do. The whole case is now before us, and
we are constrained to say that the testimony bearing upon the
precise question at issue is certainly of the most meagre, unsatis-
factory, and inconclusive character. It is said that Jackson
Ilerster stood in a confidential relation to the testator; that lie
was the testator's son, and was to some extent intrusted with his
father's business ; but he was not present at the making of the
will, nor does it appear that it was made by counsel at his pro-
curement. The testator wenl to Mr. Lynn, who had been his
attorney and counselor for fourteen oi- fifteen years, and, in the
absence of all his children, with the greatest deliberation arranged
t''<r the preparation of his will. Thai Jackson was a son was
certainly in his favor; that he was intrusted with his father's
business, ami, in this respect, occupied a confidential relation
towards him, is also a circumstance in hi- favor, it' he performed

hi- duty faithfully ami well, and did not take advantage of his

position, or abuse the confidence reposed in him in the procure-

144 UNDUE INFLUENCE. — FRAUD.

ment of the will. There is not the slightest proof that he took
any part in the actual preparation of the will, or of any of the
codicils ; indeed, that he was even present when they were made
and written, or when they were signed. Under these circum-
stances the burden of proving undue influence is clearly upon
those who allege it. The unequal disposition which the testator
made of his property, under the circumstances of this case, is not
of great significance. " There may be cases," as was said in Pat-
terson v. Patterson, 6 Serg. & R. 56, " where this internal evi-
dence, added to other proof which would of itself leave the
question doubtful, ought to turn the scale." But the inequality
in the provisions of this will, taken in connection with all the
evidence referred to, is not such as would induce any reasonable
belief that in the making of it the testator was acting under any-
improper influence ; and especially is this so in view of the evi-
dence which has been introduced to explain the reasons and dis-
close the motives which probably actuated the testator in this
disposition of his property. The very object of making a will is
to disturb the equality of distribution which the law establishes
in the absence of one ; and whether the reasons for it, in the
testator's mind, are well or ill founded, is immaterial, if he has
arrived at the result of his own volition, and without any fraud,
coercion, or constraint of others. It is onlv when the will is
grossly unreasonable in its provisions, and plainly inconsistent
with the testator's duty to his family, that, in case of /loubt, the
inequality can have any effect on the question of undue influence.
The evidence in this case is not, in our opinion, of such a character
as to leave the question at issue in doubt. On the contrary, the
uncontradicted proofs abundantly explain the testator's motives
in making his will as he did.

Apart from the internal evidence supposed to be afforded by
the will itself and the confidential relation referred to, and ap-
plying to the declarations of the testator as evidence of the state
and condition of his mind, the evidence of undue influence con-
sists mainly of the testimony of five witnesses : Amandas Fry,
Charles Haibing, Hannah Weaver, Samuel Weidknecht, and
Henry Weidknecht. The circumstance related by Amandas
Fry is of the most inconsequent character. In the year 1880 or
1881, he told the testator he had a lot on College Hill that Jacob

DECLARATIONS BEFORE AND AFTER EXECUTION. 145

would like to have. The price was $7,500. The old man prom-
ised to go up and see it. Failing to do so, Fry went to see him
again. He says : " I told him, ' Daddy, you did not come up to
see my place.' He said, ' No, I did not.' Then he said some-
thing about having a fall, and hurt his thumb or finger, — I forget
where it was, — and he couldn't get up, but that his son Jake told
him that the property was cheap, and they might as well buy it,
because they had the money lying idle. But he said, k I'll see
Jack first '; and then he called Jack, and he told Jack about it,
and said, ' Here's Fry about that lot on College Hill. Jake says
it is cheap, and we might as well buy it.' Jack said, ' No, father;
we have got enough borough property. If we want to buy prop-
erty, buy farms.' Then the old gentleman said, ' Well, if you
say so, all right '; and that ended the matter."

( lharles Baibing lived in the testator's family from April, 1880,
for nine months. He returned in the spring of 1881, and left
some time previous to the old man's death. His testimony re-
lates chiefly to the conversation of the family while at their meals.
In speaking of what Jack and his wife said at the table in the
old man's presence, he says: " They allowed that Jake's children
were running around and spending their money, and that if he
got such things he would not take care of them. Question. Was
this said upon more than one occasion, or only once? Answer.
Frequently. Q. What effect did it have apparently on the old
man \ what would he say? A. Well, he would generally side in
with the family. Q. Did you ever hear anything said about
Benry or his wife or his children? A. Yes, I did. Q. Wh.it
did he say aboul them I A. Well, — no offense to the lady there,
or the family, — I shall speak the remark as it was spoken at the
place. Q. Who said it? A. Jack Berster; 'Beck, fat Deck.'
Q. What did he say about them besides? .1. Well, thai the
children were no good, running around, and out on the streets
nights, and Ben Berster running around, and the like of that.

Q. Did yon hear Jack say anything about his sister Susan '. .1.

JTes, Mi-. Helper and her Rosa. Q. What did he say al t her?

A. That they were :i si i irk -up set, and that if they gol anything fchej

would not take rare of it. Q. When they said this, what did the
old man say '. A. Well, the old man would side in with them.

He would have the Bame opinion, apparently, to me. Q. Did he
10

146 UNDUE INFLUENCE. — FRAUD.

say anything about Eliza, Mrs. Reich ? A. Yes. Q. I mean
Jack ; what did Jack say? A. As I understand, Mr. Reich stole
a c<>\\", and drove her to Allentown or Catasauqua, — I am not cer-
tain which of the two places, — and sold this cow; and the old
man, of course, had bitter feelings against Mr. Reich on that ac-
count, and I often heard the remark made that they should not
have anything. Q. Heard Jack say it ? A. Yes. Q. Was any-
thing said about Dan by Jack ? A. Yes. Q. What? A. Said
that Dan was a drunken man, and did not take care of his busi-
ness ; that he owed the old man so much money for cattle, as I
understood, and that he had had enough for his share, and would
not get any more ; and his Irishwoman and the two boys, they
wouldn't get nothing. Q. Dan's wife was an Irishwoman, was
she? A. As I understand it, yes. Q. What effect did that have
on the old man? A. Well, he would have the same opinion.
Q. Would he be in a good humor or angry ? A. He certainly
would be out of humor when the rest spoke that way, and he
would side in with them. Q. Would he swear any? A. He
never would curse any. Oftentimes, in German, he would use an
oath, but I never heard him go to the extreme. Q. What would
he say in German ? A. He would say ' Sockerment,' and the
like of that."

Hannah Weaver was employed as a servant in the family in
the year of 1877. She says : " Rosa Kelper, — that was Susan Kel-
per's daughter, — yes, she came there one day, — I think it was on
Saturday, — and she came there with some flower-seeds, and she
had a brown silk dress on, and the door was open between the
kitchen and the old man's room, and so I said, ' Was that Miss
Kelper?' after she was gone, and she said, 'Yes, that was Rosa
Kelper ; but she would not need to put a silk dress on to come
up here to me,' and then the old man said something, but I am not
positive what he said, but he was very angry about it." " Ques-
tion. Did Mrs. Herster say anything more to him about not hold-
ing out, or anything of that kind ? Answer. Oh, yes ; she said
that wearing them silk dresses, — she said that that would not hold
out; and then the old man said, 'Yes; it wou't if they have got
to have it from me,' — something in that way it was. Q. Do you
remember on different occasions anything being said to the old
gentleman about the different children, by Mrs. Andrew Herster?

DECLARATIONS BEFORE AND AFTER EXECUTION'. 147

Do you remember anything being said there at breakfast about
not being able to sleep at night \ A. Yes, one morning the old
man got up and was angry, — that was the old man Herster. Q.
Who else was there then { A. I, and Jackson and his wife, and
the boys at the table ; and then they said they could not sleep at
all last night. Q. Who said that first? A. Why, Jack. Q.
Then what did the old man say? A. That he could not sleep
either; and then Jack said, ' Yes, they were playing on the piano
all last night. 1 Q. Who? A. Why, Jack said that; that he
could not sleep; that Henry's children were playing on the piano
all night; and then he said, ' Yes, he better — ' Q. Who? A.
Why, the old man said, ' He better learn his girls to play on the
piano, but when Clara comes around 1 will give it to her/ Q.
What did Mrs. Jack Herster say? A. ' Yes,' she said, 'if I had
girls you bet they would learn to milk.' Q. What was the old
gentleman's manner? A. Well, he was cross, angry. Q. Did
you ever hear any piano-playing over there? A. No, I slept on
the third story, and I did not hear any. Q. Did you ever hear
any piano-playing over there? A. No; I heard a little music
over there, but I don't know what it was, whether it was an accor-
dion or mouth-organ, or whatever; but I never heard a piano.
Q. Do you remember anything being said about how the piano
was brought there? A. Yes; the piano was brought in there,
and it was so large they couldn't hardly get it into the house. Q..
Who said that? A. Mrs. Jackson Herster. Q. W«hen? A. The
same morning at the table. She said that they brought the piano,
and it was so large they could not get it in the door hardly ; and it is
about all that wa> said. Q. Do you remember on any other occa-
sion when anything was said about David? A. I think it was
something, but I can't just remember how it was. Q. Do you
remember anything being said aboul his being drunk ? A, res,
it was said he was a regular drunkard. Q. Who was thai

by? A. It 1<'I1 at the table, but I can't tell whether it was Jack

.-on. .,1- hi- wife ; it was either one. They said it to the old man,
and I sal by and heard it.' ,

Samuel Weidknechl testifies thai the old man, in any business
n atter, would generally have his own way with other people, but
he generally agreed with Jackson.

Il<-nry Weidknechl thai the old man Beemed to be guided

148 UNDUE INFLUENCE. — FRAUD.

a great deal by Jackson, and was different in his manner towards
Jackson from what he was to other people.

Reuben Kolb testifies that he seemed to be a little afraid of
Jackson, that is, more yielding; that he was usually a man of
much determination, and was firm in his opinion with others, but
that he yielded readily to Jackson.

This is a summary of all the testimony bearing directly upon
the fact of fraud or undue influence, and, consisting as it does of
matters occurring, some three years and some six years after the
will was made, it is certainly of the most inconclusive character.
There is, in our opinion, no evidence from which a jury would
be justified in inferring fraud, duress, or undue influence, in the
making of this will. In an issue devisavit vel non, the question
of mental unsoundness or of undue influence ought not to be sub-
mitted to the jury where the evidence is of such unsatisfactory
character that the court would not sustain a verdict upon it.
Wilson v. Mitchell, 101 Pa. St. 505. " A court of law," says
our Brother Paxson, in Cauffman v. Long, 82 Pa. St. 72, " has a
higher duty to perform than merely to answer points of law. It
is its duty to see that the law is faithfully administered ; and such
administration requires that a man's will, the most solemn in-
strument he can execute, shall not be set aside without any suffi-
cient evidence to impeach it. There is no redress here for erro-
neous or improper verdict. But where a case is submitted to a
jury upon clearly insufficient evidence, such as no court ought to
sustain a verdict upon, it is our plain duty to reverse. Sartwell
v. Wilcox, 20 Pa. St. 117 ; Lower v. Clement, 25 Pa. St. 63 ;
Silveus' Ex'rs v. Porter, 74 Pa. St. 448." " This court has indi-
cated in a number of cases," says our Brother Green, in Herster
v. Herster, 116 Pa. St. 612, H Atl. Rep. 410, "a rule by which
to determine the granting of an issue ; and it is equally applicable
in determining whether a cause of this kind ought to be with-
drawn from the jury. It is thus expressed in a recent case : ' If
the testimony is such that after a fair and impartial trial resulting
in a verdict against the proponents of the alleged will, the trial
judge, after a careful review of all the testimony, would feel con-
strained to set aside the verdict as contrary to the manifest weight
of the evidence, it cannot be said that a dispute within the mean-
ing of the act has arisen. On the other hand, if the state of the

DECLARATIONS BEFORE AND AFTER EXECUTION. 149

evidence is such that the judge would not feel constrained to set
aside the verdict, the dispute should be considered substantial,
and an issue to determine it should be directed. This simple and
only safe test is supported alike by reason and authority.' Kanuss'
Appeal, 114 Pa. St. 10, 6 Atl. Rep. 394." Applying this rule,
which would seem to be well settled, to the evidence in this
cause, it must be conceded, we think, that it is wholly insufficient.
Upon a careful review of all the testimony, this verdict could not
be sustained ; the court should have set it aside as contrary to the
manifest weight of the evidence ; and, if this is so, it is good
ground for reversal here. The facts exhibited in evidence in this
case to establish undue influence are, in general, of the most
trivial character. The most grievous matters alleged are that
Jackson said Eliza Reich's husband stole a cow, and that Dan was
a drinking man ; facts, however, which do not seem to be serious-
ly denied. It does appear that Henry never had a piano, and it
is probable that the old man knew that he had not, as he was
actively engaged about the house for five years after this alleged
misrepresentation. Statements to the effect that Jackson's children
were " running around spending their money," that Henry's were
"out on the streets nights," and that Mrs. Kelper's were a " stuck-
up set," are criticisms that may have been well or ill-founded, ac-
cording to the stand-point from which their conduct was observed,
and the peculiar notions and temper of the observers. At the
l'<-.-t, however, they have little, if any, force in establishing fraud
or undue influence in the procurement of this will or of the codi-
cil-. And especially is this true in view of the fact that the
alleged declarations were not only made after the will was exe-
cuted, but several years after. There is some evidence of mental
impairment, but the testimony is overwhelming that, notwith-
standing this Impairment, the testator retained a business capacity
rarely found among persons of his age who have never been
afflicted as the testator was. There is no evidence whatever of
any Statement- made by Jackson or his wife to the prejudice of

his brothers and Bisters at or at any time before the making of
the will. In order to invalidate a will, there must be evidence
direct or circumstantial of a presenl operating restraint at the
time of making it. Eckerl v. Flowry, 43 Pa. St. . r >-! ; Wain-
wright'e Appeal, S9 Pa. St. 220. Influences which do not appear

160 INDUE INFLUENCE. — FRAUD.

to be connected with the testamentary act are not sufficient to
impeach a will. McMahon v. Ryan, 20 Pa. St. 329. If we are

right in the views we have already expressed, it is wholly unnec-
essary to consider the several assignments of error in detail. The
plaintiff has made ne ease for the consideration of the jury, and,
as the whole case must go down, all questions incidentally arising
dining the progress of the trial go down with it. The judgment
i> reversed.

FRAUD.— TESTATOR'S DECLARATIONS BEFORE AND AFTER

EXECUTION.

Griffith vs. Diffeiiderffer et al.

Makyland Court op Appeals, 1878.
(50 Md. 466.)

Robinson, J., delivered the opinion of the court.

Certain paper- writings, purporting to be a will of Sarah Ann
Griffith, deceased, dated the 20th of December, 1875, and a codi-
cil attached thereto, dated the 7th of March, 1876, were offered
for probate in the Orphans' Court of Baltimore City.

By these papers the testatrix gave to her daughters Emma Cole-
man and Sarah Ann Ruddach, one thousand dollars each, and
after the payment of certain legacies of about ten thousand dol-
lars to other persons, she gave the rest of her property, amounting
to at least one hundred and sixty thousand dollars, to her son,
David Griffith, and her daughters, Mary E. Farnandis and Alverda
Griffith.

On the petition of the appellees, grandchildren of the testatrix,
issues \n\o\\\\\if fraud and undue influence were sent to the Bal-
timore City Court for trial; and this appeal comes to us upon ex-
ceptions to the rulings of the court below.

As to the question presented by the first exception whether the
right of cross-examination extends to the whole case or is limited
to the matters in regard to which the witness has been examined
in chief, there is a difference between the practice in this country
and that which obtains in England. There, if a witness is called
to prove any facts connected with the case, he becomes a witness
for all purposes, and the other side may cross-examine him in re-
gard to all matters relevant to the issues before the jury.

DECLARATIONS BEFORE AND AFTER EXECUTION. 151

In this country the Supreme Court has decided that this right
is limited to facts and circumstances connected with the matter
stated by the witness in his direct examination • and if the other
side proposes to examine him respecting other matters, they must
do so bv making him their own witness. Phila. & Trenton R.R.
Co. vs. Simpson, 11 Pet. IIS ; Harrison vs. Rowan, 3 Washing-
ton Ct. Court 580; Ellmaker vs. Brinckley, 16 Leigh & Rawle
77. And this seems to us to be the better practice. There is no
good reason why a witness called by one side to prove certain facts
should be considered a witness of that side in regard to other mat-
ters fon ign l<> and in no manner connected with the facts proven,
and which the other side may desire to offer in evidence.

In this case, however, the question proposed to the witness is
strictly within the rule laid down by the Supreme Court. The
memorandum of instructions and the rough draft of the will, and
the will itself, had been offered in evidence by the plaintiffs. The
witness Venable had referred to all of these papers in his direct
examination; he had testified that the memorandum of instruc-
tions had been delivered to him by Romulus Griffith, that finding
some difficulty in understanding it he sent hack for fuller instruc-
tions, and that these instructions were also communicated by Grif-
fith ; under these circumstances it was competent on cross-exam-
ination to ask the witness whether he made a fair copy of the rough
draft embracing the additional instructions and submitted it to the
testatrix, and whether it was approved by her as being in con-
formity with the instructions she had given.

These facts were germane to, and connected with, the circum-
stances under which the will w,i> prepared, and in regard to which
the witness had testified in his examination in chief. We should
not, however, reverse the judgment on thi> ground because it ap-
pears in the Subsequent progress of the case that the defendants

had the benefil of this evidence, and they suffered, therefore, no
injury by the ruling of the court.

In the Becond exception the defendants offered to prove by the
same witness, thai the instructions for the codicil were given to
him by Romulus Griffith as coming from the testal rix, what those
instructions were, and thai he prepared the codicil in accordance
with said instructions, and as prepared by him it was redd and ap-
proved by the testatrix. Bui the offer does nol propose to con-

152 UNDUE INFLUENCE.— FRAUD.

firm this alleged Btatement of Romulus, by showing that the -wit-
ness afterwards repeated it to the testatrix, and that she admitted
it to be true, but only to show that she approved and executed a
codicil that had been prepared according to her alleged instruc-
tions as received by Romulus. This might be true, and yet the
fact that the testatrix had directed Romulus to communicate the
instructions would, after all, rest upon the witness' statement of
what Romulus told him. It was, in fact, an attempt to prove by
the witness that Romulus told him what the testatrix's instruc-
tions were, or, in other words, to prove by the witness that Rom-
ulus told him what the testatrix had said. There w r as no error,
therefore, in sustaining the objection to this question.

The questions arising under the third exception are of consider-
able importance in the trial of testamentary cases, and not alto-
gether free of difficulty. How far, and for what purposes, the
declarations of a testator, made after the execution of his will,
may be offered in evidence under issues of fraud and undue in-
fluence, the decisions are conflicting. We do not propose to ex-
amine the many cases in which the subject has been considered,
for this has already been done in Waterman vs. Whitney, 1 Ker-
nan 168 ; in Boy Ian vs. Meeker, 4 Dutcher 274, and other cases,
and it is unnecessary for us to do more than state the conclusions
we have reached.

Where such declarations are made so remote as not to consti-
tute a part of the re's gestae, they cannot be offered as independ-
ent evidence to prove the charge of fraud, or to show the external
acts of undue influence, or attempts to influence the testator to
make a will in a particular direction.

If offered for this purpose, they are inadmissible on two grounds.
1st. As mere hearsay evidence, which by reason of the death of
the party whose statement is offered, can never be explained or
contradicted by him. 2d. It is inconsistent with the Statute of
Frauds to permit a will executed with all the formalities required
by the statute to be impeached, or its validity irt any manner im-
paired by the parol declarations of the testator made after the
execution of the will.

But the question, whether a will is the free and voluntary act
of the testator, or the offspring of fraud, whereby his judgment
was misled, or of influences operating upon him, in consequence

DECLARATIONS BEFORE AND AFTER EXECUTION. 153

of which his will was made subordinate to that of another, depends
upon whether he had intelligence enough to detect the fraud,
and strength of will enough to resist the influences brought to bear
upon him.

The character and degree of the fraud practiced, and the influ-
ence exerted, involve, therefore, necessarily, to some extent, the
physical and mental condition of the testator at the time of the
execution of the will. The influence that would be unlawful if
exerted upon one advanced in years and in declining health, of a
weak and vacillating will, might be altogether unavailing with
one in robust health and of firm and resolute purpose. Any evi-
dence, therefore, which tends to prove the precise mental con-
dition of the testator, and to place him before the jury just as he
was when the will was made, is admissible ; and for this purpose
the declarations of a testator may in some cases be the most satis-
factory proof. It is a common practice to admit such testimony
under issues involving testamentary capacity, and upon the same
grounds it ought to be received under issues of fraud and undue
influence, provided they are made sufficiently near in time, as to
justify a reasonable inference, that the mental condition which
they are intended to denote, existed at the time of the execution
of the will. Such evidence, it is true, may have an effect beyond
that for which it can legitimately be offered ; and although not
competent to prove the facts upon which the charges of fraud and
undue influence are founded, they may nevertheless tend to bias
or prejudice the mind of the jury.

The objection, however, applies also to other species of evidence,
which is competent for one purpose, but not competent for an-
other, and if it be admissible under the general rules of evidence,
we cannot exclude it on that ground.

We are of opinion, therefore, thai the declarations of the testa
trix to Mary Whitman, in November, 1*7<>, "that she had made
a will," "that she was dissatisfied with it," "that she had been
persuaded to make it," "thai she was sorry she hadn't let the law
make a will for her, as it had for her husband, so that the children
would have shared alike, 1 ' "thai she had done greal injustice to
her other children and to her grandchildren," naming them ;

"and was troubled a I .out it," and " sometimes tempted to destroy
it," and other like declarations were admissible for the purpose

154 UNDUE INFLUENCE. — FRAUD.

of proving the mental condition of the testatrix at the time of the
execution of the will and codicil, but for no other purpose.

We are of opinion also, that her declarations in regard to her
testamentary intentions made in May, 1875, some months before
the execution of the will and codicil, and before any improper in-
fluence are supposed to have operated upon her, are admissible.
Evidence of this character may be offered either to rebut the
charges of fraud and undue influence, by showing that the will is
consistent with the long cherished wishes of a testator, or that it
is contrary to well-settled convictions of what he thought was a
just and proper disposition of his property among others standing
in the same natural relation with those benefited by the will. The
weight to be given to such testimony is a question for the jury.
Den mead's Appeal, 29 Conn. 309; Converse vs. Allen, 4 Allen
512 ; Turner vs. Clemson, 15 N. J. Equity 243.

We come now to the questions of law involved in the instruc-
tions granted and those refused by the court. And here it is
necessary to understand precisely the issues the jury had to try.
That the will and codicil bore the genuine signature of the testa-
trix; and that she was of sound mind and capable of making a
testamentary disposition of her property, are admitted. The
issues of undue influence were abandoned by the plaintiffs, and
the only questions before the jury were whether the will and
codicil were procured by fraud. The burden of proof was upon
the plaintiffs. If they offered no evidence, or if it was insufficient
to satisfy the jury that the papers offered for probate were pro-
cured by fraud practised upon the deceased, then the defendants
were entitled to a verdict.

The court, however, instructed the jury, that if they found
certain facts set forth in the plaintiffs' first prayer, the burden of
proof was upon the defendants to satisfy the jury, that the will
and codicil were in all respects the free, voluntary and intelligent
acts of the testatrix, and if they failed to do so, the plaintiffs were
entitled to a verdict. In other words, assuming these facts to be
true, the burden of proof which originally rested upon the plain-
tiffs, was shifted to the defendants. This was equivalent to saying,
that the facts enumerated in the prayer amounted in law to a
presumption of fraud, because on no other ground could a jury
find a verdict for the plaintiffs.

DECLARATIONS BEFORE AND AFTER EXECUTION. 155

Now what are the facts thus relied on to support this presump-
tion ?

First, that Romulus Griffith was the son-in-law, agent and
attorney-in-fact of the testatrix, and entrusted with the manage-
ment of her affairs ; that he employed his own counsel to draw
the will and codicil, was consulted by the testatrix as to the making
of said instruments, and otherwise took an active part in the prep-
aration and execution of the same, by which his wife and him-
self were largely benefited. And it is insisted, that the doctrine
recognized by courts of equity, in dealing with matters of gift
and contract, between parties standing in a fiduciary relation to
each other, should be applied if not in its broadest sense, yet in
some qualified manner to gifts under wills. It is true, that such
courts always watch with suspicion, transactions between persons
.-funding in this relation, and although such transactions are not
treated as altogether void, yet the burden of proof is upon the
party holding the relation to show, that the influence necessarily
arising from the confidence thereby reposed, has not been abused.
And hence it is, that in gifts inter vivos between such persons, it
is incumbent on the donee to show, that it was the free and
voluntary act of the donor. But there is an obvious difference
between a gift, whereby the donor strips himself of the enjoy-
ment of his property whilst living, and a gift by will, which takes
effect only from the death of the testator. And in Parfitt vs.
Lawless, Law Rep., Probate and Divorce, vol. 2, 468, where the
testatrix gave all her property to a Catholic priest, her confessor,
it was expressly decided, that the doctrine of confidential relations
as recognized by courts of equity, in dealing with gifts or con-
tracts inter VIVOS, had no application to gifts under a will.

Lord Penzance says : "In the cases of gifts or other trans-
actions inter vivos, it is considered by courts of equity, thai the
natural influence which such relations as those in question invoh e,
exerted by those who possessit, to obtain a benefit for themselves,
i in width influence. The law regarding wills is very differenl
from this. The natural influence of the parenl or guardian <>\er
the child, <>r the husband over the wife, or tin' attorney oyer the
client, may lawfully he exerted ti> obtain a will <>r legacy, bo long

a- the testator thoroughly understands what he is doing, and is a

free agent."

[56 INDUE INFLUENCE. — FRAUD.

But in addition to the relation which Romulus Griffith bore to
the testatrix, we have the further fact, that he was consulted by
her in regard to making the will, that he employed his own
counsel to draw it, and that his wife and himself were largely
benefited by it. The fact that a party is largely benefited by a
will prepared by himself, or in the preparation of which he takes
an active part, is nothing more than a suspicious circumstance, of
more or less weight, according to the facts of each particular case.
If the testamentary capacity be doubtful, or if the party bene-
fited be a stranger not allied by ties of kindred to the testator,
these and other like facts would tend of course to increase the
suspicion.

They are, however, but facts and circumstances to be con-
sidered by the jury in determining the question of fraud. But
fraud in this case being a question of fact to be found by the
jury, and not one of law to be inferred by the court, it was error
to instruct the jury that the facts thus relied on by the plaintiffs
created a presumption of fraud, or in any manner affected the
burden of proof, which from the beginning to the end of this
case rested upon the plaintiffs.

Then again, whatever suspicions these facts might excite, or
whatever explanation they might require, the undisputed facts
show not only that the testatrix was fully competent to make a
will, but that the papers offered for probate were read and ex-
plained to her, and that she expressed herself fully satisfied with
their contents. Whatever suspicion, therefore, the facts thus
relied on might have excited, it was fully explained and removed
by the uncontradicted evidence offered by the defendants. And
it is no answer to say, that an instruction to that effect might have
been asked by the defendants. It was misleading the jury to say
that certain facts tended to create a presumption of fraud, and
therefore to shift the burden of proof upon the defendants, if
other facts in regard to which there was no conflict, showed that
no such presumption could arise.

But then again it is said, there is a material variance between
the will and the written memorandum of instructions, and this
also is relied on as evidence of fraud. The testatrix was entitled
to commissions amounting to about seven thousand dollars from
her husband's estate. By her will, she gave to Romulus Griffith

DECLARATIONS BEFORE AND AFTER EXECUTION. 157

and wife a sum equal in amount " to the commissions which she
should receive during her life, and be entitled to at the time of
her death.'' By the memorandum of instructions, she gave to
Griffith and wife " her portion of the commissions on her hus-
band's estate, if the said estate should not have been settled and
commissions received before her death." And it is insisted, that
even if the testatrix had received these commissions in her life-
time, and had paid them to Griffith and wife, yet they would be
entitled under the will to an additional equal sum at her death.
Now, if it be conceded that there is a variance between the will
and the memorandum in this respect, there is not a particle of
evidence to show that it was made with a fraudulent purpose.
The will was drawn by the witness Venable, and he says, if there
is a variance it was altogether unintentional on his part, and arises
from an unhappy use of language. The appellants expressly dis-
claim any intention to impute improper motives to him, and if this
variance escaped his attention, a lawyer and draftsman, it would
be unjust and unreasonable to impute knowledge of it to Romulus
Griffith, because the will was read in his hearing. Taking, there-
fore, all these facts together, and adding thereto every fair and
reasonable inference, we are of opinion that they are not sufficient
to create a presumption of fraud, or to shift the burden of proof
from the plaintiffs to the defendants.

Jn addition to this, the instruction was clearly erroneous, in
submitting to the jury under the circumstances surrounding this
case, the question whether the testatrix fully understood the pro-
visions and effect of the will and codicil. Knowledge of its con-
tents is. of course, essential to the validity of every will, but
where the testamentary capacity is unquestioned, such knowledge,
as a general rule, will be inferred from the execution of the will
itself. If there be suspicious circumstances surrounding the prep-
aration and execution of a will tending to rebut this presump-
tion, it may be proper to require additional proof of some kind
that the testator did in facl understand its contents. But in this
case it wa- qoI only admitted thai the testatrix was of sound mind
and capable of making a will, but the evidence shows thai both
the will and eodieil were read and explained to, and approved by
her. Under buc!i rireumstauees as these, the law imputes knowl-
edge, and the door of inquiry is closed. There may be excep-

1")8 UNDUE INFLUENCE. — FRAUD.

t ions to this rule, it is true, arising in cases of fraud practised
upon a testator in the preparation and execution of his will, but
it is not alleged here that one instrument was prepared and read
to the testatrix, and another and a different one substituted in its
plaee; nor is it alleged that any fraud was practised in reading
the will or codicil. On the contrary, these papers were read
to her, line by line, just as they were written ; and being in
the full possession of all her faculties, there is nothing to ex-
cept this ease from the operation of the general rule as we have
stated it.

Then again, there is another objection to this prayer, and one
which applies with equal force to the third prayer. Whether the
will and codicil were procured by fraud, were questions of fact
to be found by the jury, and not questions of law to be inferred
or presumed by the court. The affirmative of the issue was upon
the plaintiffs, and these instructions assume that if evidence is
offered sufficiently strong to make out a prima facie case of
fraud, the burden of proof was shifted to the defendants, and
unless they offered evidence rebutting the prima facie case thus
made, the jury were obliged to find that the will and codicil
were procured by fraud. The court thus undertook to say, as
matter of law, that the plaintiffs had proved the affirmative, or,
in other words, had proved that the will and codicil were pro-
cured by fraud, instead of leaving this question to be found by
the jury. Whether the defendants offered any evidence or not,
the affirmative of the issue was none the less ultimately upon the
plaintiffs, and it was incumbent on them to satisfy the jury that
it had been established. To entitle the plaintiffs to a verdict, the
jury must find as matter of fact that the will and codicil were
procured by fraud.

The second prayer is based upon the theory, that the testatrix
was induced to discriminate in her will and codicil against certain
of her children and grandchildren, in consequence of false repre-
sentations made to her by those benefited by the will and codicil,
such persons knowing that these representations were false, and
knowing that they would, and intending that they should, influence
the testatrix in making this discrimination. In other words, that
a downright fraud was practised upon her, in consequence of
which, certain members of her family were excluded from a fair

DECLARATIONS BEFORE AND AFTER EXECUTION. 159

participation in her property. Objection is made to this prayer
in the first place, on the ground that there was no evidence to
warrant the court in submitting to the jury the finding of the
facts on which it is based. It is not the office of a judge to
weigh or balance conflicting evidence, however strongly the evi-
dence on the one side may preponderate. That is the duty of the
jury. If no evidence is offered, or if it is not such as one in
reason and fairness could find from it the facts sought to be estab-
lished, the court ought not to submit the finding of such facts to
the jury. Without meaning to intimate any opinion in regard to
the weight of the evidence, or the conclusion a jury ought to
draw from it, it was sufficient, I think, to warrant the court in
submitting the facts set forth in this prayer to the jury. Upon
this question the judges who heard this case are equally divided
in opinion, and the prayer would, therefore, be affirmed by a
divided court, but for one or two minor objections in regard to
which we all agree.

Where a will is assailed on the ground of false representations
instilled into the mind of the testator, it must appear that such
representations were made for the purpose of influencing the
testator in making his will. Now, in this prayer, the. jury are
required to find that the representations therein set forth, were
made for the purpose of influencing the testatrix in making Tier
will, but they are not required to find that they were made for
this purpose in regard to the codicil.

Then again it instructs the jury if they find certain facts, " they
iiKii/fliid thai the will and codicil were obtained by fraud," and
their verdict u 7nust" be for the plaintiffs. In order to avoid
any misconstruction, it should have been qualified by adding after
the words "were obtained uy fraud '" the words "and if they
shattsojmd" their verdict must be for the plaintiffs. As the
case will be remanded for a new trial the prayer in these respects
can be corrected.

It was also urged, thai the several prayers offered by the plain-
tiffi were erroneous, because they assume if fraud was practised
upon the testatrix in making her will and codicil, the entin will
and codicil were void, although il might appear from the evidence,
that the fraud affected only certain parts of the will and codicil.
And it w.i- insisted, thai if the fraud did doI affecl the entire

ICO UNDUE INFLUENCE. — FKAUD.

will and codicil, the jury by their verdict should have segregated
the parts thus atfected by the fraud. This is a question of import-
ance, and so far as our information extends, is now for the first
time raised in this court. Whether under proper issues framed
for the purpose of presenting the question, a jury may find part
of a will void on account of fraud and another part good, it is
unnecessary for us to decide. 1 No such issue was sent by the
Orphans' Court to the court below for trial, and the question is
not, therefore, presented by this record. The issues before the
jury were, whether the will and codicil were procured by fraud %
And their verdict must, of course, be responsive to these issues.
"Where a will is assailed on the ground of fraud and undue influ-
ence, if it is proposed that the jury shall find whether such fraud
and undue influence affects the whole will or certain parts only,
and what parts, it seems to us, there ought to be a separate issue
framed presenting directly that question to the jury.

The plaintiffs' fourth, fifth, and sixth prayers announce well
settled principles, and there was no error in granting them.

The issues of undue influence having been abandoned and no
longer, therefore, before the jury, the court properly refused to
instruct the jury in regard to the law applicable to such issues.

There was error in granting the plaintiffs' first and third
prayers, and also in granting the second as it was presented, and
the judgment will be reversed and a new trial awarded.

Judgment reversed, and new trial awarded.

(Decided 7th February, 1879.)

UNDUE INFLUENCE.— ADMISSIONS OF LEGATEE.
L<a Bau v. Vanderbilt.

Surrogate's Court, New York County, New York, 1877.

(3 Redf. 384.)

Application for revocation of probate of the will of Cornelius
Vanderbilt. The report gives a number of separate opinions
rendered at different stages of the proceeding, on distinct ques-
tions. The question upon which the following opinion was
rendered, was whether the declarations, or admissions, of one

1 This may be done, if the illegal part is separable. 1 Jarman on Wills
(Randolph & T.'s ed.) 36 ; Billinghurst v. Vickers, 1 Phillim. 187.

ADMISSIONS OF LEGATEE. 161

legatee, tending to show undue influence, or lack of testamentary
capacity, were to be admitted to support the contest.

Calvin, S. — The apparent irreconcilability of the authorities
bearing upon the subject, has caused some embarrassment in
deciding the question raised, and will justify a full statement of
the cases so far as they are applicable.

In Beall v. Cunningham (1 B. Mon. 399) it was held that the
admission of one of several devisees, obviously against his interest,
that the decedent had given him the paper propounded as a form
of will, and told him " that it was a mere form, which he might
dispose of as he pleased,' 1 was admissible. In Bogers v. Rogers
(2 B. Mon. 324), in an action contesting the validity of a will the
circuit judge had refused to permit proof of conversations in
which the principal devisee stated a desire to own his father's
homestead, and of another conversation in which said devisee
remarked : " We have had too much trouble and difficulty in
getting this will, to attempt getting another." On the authority
of Beall v. Cunningham {above) the court on appeal held the
testimony competent, and also stated the English practice of
receiving admissions by one parishioner against the whole parish-
ioners, where the question involved was common to all, as one
could not be compelled to testify against himself and associates ;
and said the courts of Massachusetts and Pennsylvania had virtually
applied the same rule in wills cases. But the decree was affirmed
notwithstanding the alleged error, because the appellate court
concluded that the party was not injured by the exclusion. In
Fairchild v. Baseomb (34 Vt. 398) evidence that a legatee stated
to one of his brothers (one of the contestants of the will), that he
did not know that the deceased had made a will, and thai about
a week after, he stated to another brother the contents of the
will, contrary to the fact less favorable to him, was received, it
appearing thai -aid legatee was present at the execution o\ the
will, and that he was sole legatee. In Atkins v. Sanger (18 Mass.
L92) evidence was admitted of the declaration of one oi the
6X( CUtore and a legatee, as to facts which occurred at the time 01
making the will.

In Phelps v. Ilartwell (1 Mass. 11) testimony was offered to
prove a declaration of one of the legatees, giving his opinion that

the testator at the time of making his will was not of sound mind.

\(\-2 UNDUE INFLUENCE. — FRAUD.

Sedgwick, J., said that if the appellee who made the declaration
were solely interested in establishing the will, he should be in fa-
vor of admitting the evidence, because he thought that evidence
of opinions formed at the time might be fairly presumed to be
among the best means of informing a party as to the real state of
the testator's mind, but as the other appellee was interested in the
establishment of the will, it would not be proper to admit the evi-
dence offered. In Davis v. Calvert (5 Gill & Johns. 2G9), on a
bill filed by one of the next of kin against the probate of a will,
the plaintiff offered to show that the executor who propounded
the will, in a conversation a few days after the death of deceased,
declared that though he had promised the deceased to provide for
certain children, he did not consider himself bound to do so, be-
cause he was convinced that they were not children of the de-
ceased. The evidence was rejected. But this was held error, the
court saying: "Calvert being executor and contingent devisee,
representing every interest under the will, and being also defend-
ant on the record, evidence of any relevant declarations or admis-
sions by him, adverse to the will, and bearing upon the issues, or
any of them, ought to have been admitted ; the rule being that
the admission of a party to the record is always evidence, though
he be but a trustee for another, with certain exceptions not appli-
cable to this case.

In Lewis v. Mason (109 Mass. 169) it was held that on the ques-
tion of undue influence the statement of deceased's children made
in his lifetime to another child, that such child should not stay in
the testator's house, and that they had got the testator where they
wanted him, was admissible, for the reason that it had some tend-
ency to show a purpose upon the part of the former to keep the tes-
tator under their supervision and control, and exclude the other mem-
bers of the family from any opportunity to interfere. This statement
seems to have been made prior to the execution of the will. In
Peebles v. Stevens (8 Rich. 198) it was held that where executors
and legatees propounded the will for probate, their declarations,
as well after as before the execution of the will, might be given in
evidence by the next of kin. The court held them competent
testimony, because they were from parties to the cause, and might
be used by the adverse party, those making them having a ioint
interest and representing all the rights and interest of the testa-

ADMISSIONS OF LEGATEE. 163

trix and of her legatees. Some members of the court concurring
in the result, put their decision principally upon the ground that
a confederacy had been shown between the executors, and that
the admission of one confederate bound the others. (See also
Durant v. Ash more, 2 Rich. 184.) In Harvey v. Anderson (12
Ga. 69) the general rule was stated to be that the declarations of
a party to the record, or of one identified in interest with him
therein, were, as against such party, admissible in evidence, and
that this rule applied to all cases where he had any interest,
whether others were joint parties on the same side with him or
not, and whatever might be its relative amount. In Williamson
v. Naburs (14 Ga. 286), where the admissions of an executrix and
legatee of a life interest, and the proponent of the will, were held
competent evidence on the trial of a caveat to that will, Starnes,
J., said there was a conflict of opinion in the adjudicated cases on
this subject ; but held the case of Harvey v. Anderson {above) made
the question res adjttdicata, and that it was specially in that case
reasonable that admissions by one who was executrix, who took
the whole property for life, and was proponent of the will, could
not have been made against this strong interest and bias for the
purpose of prejudicing the legatees in remainder, or from any
other motive than truth. So in Brown v. Moore (6 Yerger 272)
the declarations of one of several devisees that the will had been
unduly or fraudulently procured to be made, were held admis-
sible.

In Smith v. Morgan (2 Moody & Bob. 257) it was held (bat the
declarations of an assignee, made before his appointment as such,
were competent, but Fenwick v. Thornton (M. & M. 51) is cited
in Williams on Executors, as contrary to this doctrine. " It may
be doubted," says the author (p. 1612), "whether admissions
made by an executor or administrator before he was clothed with
th.it character are receivable in evidence aarainsl him in an action
brought by or against him, in his representative capacity."

In Clapp v. Fullerton (34 X. V. L90) the will was pro] nded

by the principal legatee and contested on the ground of testator's
imbecility or lunacy, and of undue influence on the part of the
proponent -the proponent and contestant being daughters of the
deceased it being alleged thai the contestant received but an in-
significant legacy, because deceased was laboring under the insane

104 UNDUE INFLUENCE. — FRAUD.

delusion that the contestant was illegitimate. It was proved by a
declaration of the proponent that this suspicion had its origin in
the mind of her father nearly two years before his death, and in
the interim between the execution of the instrument propounded
and of a prior will. It does not appear at what period this ad-
mission of the proponent w r as made. It also appears that the pro-
ponent after the testator's death intimated to a witness that her
mother had been too intimate with her father's brother. This
testimony seems not to have been objected to, nor is the question
of its admissibility discussed by the court, which affirmed the de-
cree of the Surrogate. The evidence must have been given by
the contestant for the purpose of showing the undue influence ex-
ercised by the proponent upon the deceased to induce him to cut
off her sister, and therefore, though the evidence were improperly
admitted by the Surrogate, its admissibility could not have been
considered on an appeal by the party who gave it.

In Brick v. Brick (66 N. Y. 144) the declarations of deceased's
wife, the sole legatee, made several years after the execution of
the instrument propounded, were received, but the language of the
opinion of Judge Rapallo, in that case is, "all these declarations
were made in 1864, and there is no proof of any attempt prior to
the date of the will to interfere with the intercourse between the
brothers." Julke v. Adam (1 Redf. 454) was a case where the
declarations of the widow of the deceased, against whom undue
influence was charged, were received. The Surrogate admitted
the testimony as tending to prove an existing intent and dispo-
sition, citing Brush v. Holland (3 Bradf. 240). In that case the
contestants sought to introduce proofs of the declarations of the
decedent's widow, to show incapacity and the exercise of undue
influence, the widow being a legatee and executrix. The Sur-
rogate excluded the admission as such ; but as it had some bear-
ing upon the motives and dispositions of the persons charged
with procuring the will, he was unwilling to say that in that view
and bearing it was entirely inadmissible. The declaration in that
case by the widow of her intention to control the deceased in the
making of his will, was made prior to the execution of the will.
In Horn v. Pullman (10 Hun 471) [see s. c. 72 N. Y. 269
(279)] probate was contested on the ground of mental inca-
pacity, fraud, and undue influence. The sole beneficiaries were

ADMISSIONS OF LEGATEE. 165

Mr. and Mrs. Pullman, and the Surrogate rejected the admis-
sion of Mrs. Pullman, that she thought what property the
testator had when he was done with it ought to he willed to
her and her husband, and that they were going to have it, too;
also evidence that she said that they had got the property,
and had it so fixed that if the children of deceased contested the
will, they would have to pay their own cost; that they had con-
sulted a physician beforehand to see if he was competent to make
a will, and that he was a nice old man, and would do anything
she asked him to. This rejection was held error.

In Dan v. Brown (4 Cow. 483) it was held that the admissions
of the plaintiff or defendant, will in general affect none but him-
self, and not his co-plaintiff or co-defendant unless they are his
partners; that in partition by several tenants in common against
others, where the plea was non tenent insimul, the admissions of
one of the plaintiffs that a will was lost could not be received to
affect his co-plaintiff, and that the confessions of one tenant in
common of lands, is not evidence against his co-tenant.

In Hammon v. Huntley (4 Cow. 493) it was held that confes-
sion by an executor of a debt due from his testator is not admis-
sible as evidence in a suit for debt against his co-executor to
establish the original demand. (And see James v. Ilackley, 16
Johns. 273; Whitney v. Ferris, 10 Id. 6Q] Forsyth v. Ganson, 5
Wend. 55S ; Osgood v. Manhattan Co., 3 Cow. 612.)

In Bovard v. Wallace (4 Sergt. & Rawle 499), which was a
feigned issue to try the validity of a will, the defendants offered
to prove that one of the devisees had declared that the testator,
at the time of executing that writing, was incapable of making a
will, which evidence was excluded as incompetent, and the rilling
sustained on appeal. And in Nussear v. Arnold (13 S. & R. 323),
the declaration- of the principal devisee that the testator was in-
Capable of making a will were received in evidence ; but on appeal

the exception taken to the evidence was sustained.

The same rule w&a followed in Eauberger v. Root (•; Watte &
Serg. 431 ; Dietrich v. Dietrich,! Watts 167; Boyd v. Ebly, 8
W-.it- 66; Clark v. Morrison, -j:» Penn. St. 453; Titlow v. Tit-
low, :. I Id. 216; Dotts v. Feltzer, '•> Id. 88). 'Hie rule in Massa-
chusetts is the same, it being held thai devisees and legatees have

not, that joint interest in the will which will make the admis-

166 UNDUE INFLUENCE. — FRAUD.

sions of one, though he be a party to the record, admissible against
the other legatees. (Shailer v. Bumstead, 99 Mass. 112 [given
ank\ ; and in Alabama, Blakey v. Blakey, 33 Ala. 611; and in
West Virginia, Forney v. Ferrell, 1 West Ya. 729; and in Ohio,
Thompson v. Thompson, 13 Ohio St. 356 ; and in Georgia, Morris
v. Stokes, 21 Ga. 552.) The reasoning and result of the last case
go far towards overruling the earlier Georgia case above referred
to — certainly as applicable to the case under consideration.

I think it must be conceded in this case that the will in ques-
tion must stand or fall in all its provisions, and that there is
neither in the proof offered or the allegations filed, on the theory
of >either of the counsel, any warrant for the suggestion that it
may be admitted to probate as to one or more of its provisions,
and be rejected as to any of the others. Indeed, I understand
this view to have been acquiesced in by all the learned counsel in
this case, where the admissibility of proof tending to show undue
influence exercised upon the mind of the testator against his son
Cornelius J., though not a contestant, was under consideration.
For the purpose of the admissibility of the declarations of a leg-
atee, after the execution of the instrument propounded, it must
be admitted that they would affect the will as a whole, and the
interest of the respective legatees alike.

As the question submitted is one of great importance in this
case, and of general interest in probate cases, and has been argued
with great earnestness and ability by the learned counsel for the
respective parties, I have deemed it my duty, especially as the
authorities directly upon the point are so few in this State, to
thoroughly examine each case cited by counsel, and such as my
own researches have enabled me to find, together with the ele-
mentary treatises upon the subject, as this case in its ultimate re-
sult will be likely to settle the question for the future.

It seems to me that the w T eight of authority is against the ad-
missibility of the declarations of one party to affect the rights of
another, unless such parties be jointly interested, by which each
party is authorized to speak and act for the whole, or there is
proof of a combination, in which case a conspirator may speak
for all his confederates. But in the latter case, a conspirator, by
his admissions or declarations, can only affect his co-conspirators,
and if his admissions or declarations cannot but affect other

ADMISSIONS OF LEGATEE. 167

parties not confederated, such admissions and declarations should
be excluded. This rule is based upon the most obvious prin-
ciples of justice. Is there any good reason to be suggested why
the rights of one party should be affected by the irresponsible
admissions of another party, with whom he chances to be associ-
ated as such, but upon whom he has conferred no authority to
speak for him ?

Such a principle would enable a party to deprive another of
his legal rights, without that other being able either to disprove
the admissions, or by cross-examination to test their truth. It is
true that the admissions of a party adverse to his interests are
held admissible because of the improbability of a person admit-
ting a fact contrary to his interest unless such admission be true,
and there seems to be a propriety in holding such a party bound
by his own admissions, but when the interests of another party
intervene, that other party has the right to insist that they shall
not be divested except by the ordinary proof attested by the sanc-
tion of an oath, or by his own voluntary admissions.

In his capacity of executor, the residuary legatee represents
with the other executors all the devisees and legatees, and not
himself alone, and they have the right in that representative
capacity to object to the admissions made by one legatee to affect
all the others

If the testator, the origin and source of the testamentary bounty,
cannot, after the execution of his will, admit away the rights of
the beneficiaries or impair the validity of the testament by such
admissions, upon what principle can one beneficiary be permitted
to impair or destroy the rights of his co-beneficiaries, who derive
nothing of those rights from or through him?

Suppose the legatees of the will in question who are neither
heirs nor next-of-kin, had declared that they unduly influenced the
deceased to make such will in favor of William II. Vanderbilt,
can it be thai the other legatees are to be deprived of their leg-
acies upon such admissions? And yet they are parties in in-
terest, represented by the executors. If the doctrine obtain that
a party who admit- a fact adverse to his interesl may affeel the
rights of all other parties, il would extend the principle to any
legatees, however insignificanl their legacies. A fact might thus
be adjudged which would deprive all the other legatees of their

1(58 INDUE INFLUENCE. — FRAUD.

legacies, upon the irresponsible admission of some, whom they
had clothed with no authority to speak for them or to intervene
in respect to their rights. I say irresponsible, because the leg-
ators making the admissions could not be held liable, although
their admissions were false. As to the other parties who had no
responsibility respecting the admissions, such admissions would
obviously be hearsay.

Suppose a legatee, for some fraudulent or revengeful purpose,
or pursuant to some corrupt combination with the contestants,
should make admissions adverse to the probate of the will, would
it be just that the rights of innocent parties should be thus im-
paired or destroyed, without the power of redress ?

It may be answered that witnesses, when examined under oath
upon the stand, may swear falsely, and may have entered into
fraudulent schemes to destroy the rights of other parties, under
the subornation of an adverse party ; but in such a case the wit-
nesses would be deterred by the terrors and penalties of the crim-
inal law against perjury, as well as by the admonition of their
consciences, and the principal of the penalties of the law against
subornation of perjury. Besides, such witnesses would be con-
fronted by courts, parties and counsel and by public observation,
and the aggrieved parties would not only be afforded the oppor-
tunity to inquire as to all the circumstances on cross-examination,
as a test of the truth of the testimony, showing the manner and
conduct of the witnesses for the scrutiny of the court (an almost
infallible test of truth), but to impeach the general character of
such witnesses for truth and honesty.

Upon well-recognized and elementary principles and the high-
est considerations of justice, as well as the weight of authority, I
am convinced that the various admissions and declarations of the
executor and legatee offered by the contestant are inadmissible
and should be excluded.

[Also Matter of Baird, 47 Hun 77 ; Wins, on Exrs. (Perkins'
Am. ed.) 360, note (ra), citing numerous cases; Shailer v. Bum-
stead, given ante. The admissions of a sole beneficiary are com-
petent. Wms. on Exrs. (Perkins' ed.) 360, note {m) and cases
cited.]

INTERNAL EVIDENCE — DECLARATIONS. 169

UNDUE INFLUENCE.— INTERNAL EVIDENCE.— DECLARATIONS.
Harrel, &c. vs. Harrel, &c.

Kentucky Court of Appeals, 1864.
(1 Ky. 203.)

Judge Robertson delivered the opinion of the court :

A paper purporting to be the last will of William Harrel,
deceased, after probate in the county court of Daviess, was, on an
appeal to the circuit court, set aside by the verdict of a jury and
the judgment of that court. From that judgment the propounders
of the will appeal to this court.

When he acknowledged the testamentary document, the
decedent, about seventy years old, was confined to his bed by an
inflammatory disease, which appeared very distressing, and made
him frequently both "drowsy " and "flighty," and of which he
died about two days after the attestation.

At his death he owned the homestead tract of land, worth
$10,000 ; ten slaves, valued at $±,000; stock worth $1,125 ; other
personalty, estimated at $1,673 ; and $682 cash in hand ; and
there is no proof that he owed any debts. He left four children
and some grandchildren, none of whom (children or grandchildren)
had been advanced by him.

The testamentary provisions are simple and short; and give to
hi- widow, whom he married not more than eight years before }
and to his son James, his whole estate of every kind during her
life, remainder to said James, excepting only the slaves, which
were to lie equally divided between James and his brother Jona-
than, sisters Hannah Eumphrey and Mary Ann Patrick, and the
children of a deceased sister, Lydia Beard.

V<>\- such gross inequality no reason is suggested in thedocument
itself or by the proof on the trial. The testator had an unques-
tionable power to make such a will. Bu1 its apparenl unreason-
ableness requires satisfactory evidence that it was the tree ami
deliberate offspring of a rational, .-elf-poised, and clearly disposing
mind. And all this has not, in our opinion, been shown l.\ the
testimony with Bufficienl assurance.

No witness i xpressed the opinion that he had nol a disposing
mind, and the mbscribing witnesses, and mosl others, testified to

170 UNDUE INFLUENCE. — FRAUD.

some facts conducing to the abstract conclusion that he had. But
all of them prove other facts, conflicting, in a greater or less
degree, with that conclusion ; and these we will summarily notice
in two classes — 1st. As illustrative of incapacity ; and, 2d. As
indicative of extraneous influence controlling his enfeebled and
disturbed mind.

1. lie was often in a state of stupor, and, when roused, was
generally flighty ; but soon, while awake, became apparently
rational. He dictated the substance of the legatory provisions as
written. But he became comatose while the draftsman was writ-
ing, and though soon awakened to apparent self-possession and
reason, yet a watcher attended to his pulse so as to announce
whether and when the pulsations should indicate an incapacitating
perturbation of mind.

2. His second and surviving wife — no mother of any child of
his, often teased him to make a will. These annoying importuni-
ties were repeated from a short time after their marriage to a
few weeks before he was struck down by the fatal sickness. He
always resisted these overt and reiterated solicitations, and, on one
occasion, she said that " the old devil " would not do as she
wished. From such proof of open solicitations, there can be no
doubt that secret appeals, more frequent and urgent, were con-
tinued in various ways, and it is not improbable that her selfish
perseverance succeeded, at last, in bowing his stubborn neck to
her yoke when feeble and hopeless on his death-bed. The proof
is clear that he often, for years, declared that the law made the
best will, and that he would never make one. He also said, not
long before his death, that he desired an equal distribution of his
estate among his children ; and, not more than three weeks before
his death, declared that he would never make a will. In confirma-
tion of that as his fixed sentiment, he, by extraordinary remon-
strances, prevailed on one of his sons to die intestate.

Now, what changed that settled purpose, for the first time,
when he was expecting to die every hour, and was scarcely able to
think deliberately or exercise a prudent volition ? The record
affords no clue to a consistent answer, unless his wife's influence,
aided, perhaps, by the co-operation of his son James, finally sub-
jected his will and changed his long-cherished purpose of intestacy
and legal equality. And, considering all the facts, the presump-

testator's relations with legatee. 171

Hon is strong that this was the controlling cause. In the disturbed
and flitting condition of his mind, the impress of that influence
and dictation might have enabled him mechanically to dictate the
devise to his wife and son James, of his whole estate without
classifying it or enumerating the articles. And this is rather
confirmed by the proof that he did not suggest, but seemed to
pretermit, the ulterior provision as to the slaves until his attention
was called to that subject.

Whilst, therefore, the testamentary right should be carefully
guarded and faithfully vindicated, this court should be vigilant to
prevent, as far as it can, the abuse of that right by withholding
its approving seal from a document, so unnatural and so question-
able as to freedom and capacity, as that now under its final con-
sideration. To establish it as a valid will would encourage a
prostitution of the testamentary power. To reject it would
increase the value of that power, and tend to frustrate improper
intermeddling, and especially in extremis, to disturb the just
equality of the law.

In a case of such unaccountable inequality, justice and policy
require clear and satisfactory proof of a free, deliberate, and dis-
posing mind, before such a paper, as that now before us, shall be
established by our judgment as a true and valid will. We cannot
feel that we have that proof. On the contrary, we are strongly
inclined to the deduction that the document was not the spon-
taneous and legitimate offspring of a self-poised, settled, and dis-
posing mind. And this conclusion, were it more doubtful than
it is, might bo made preponderant by the verdict of a jury of
neighbors confirmed by the judgment of the circuit court.

Wherefore, this court adjudges that the document in question
Is not the will of William Harrel, and remands the case to tin'
circuit court, with instructions t<> enter this judgment and certify
it to the county court of Daviess, to he recorded as the- judgment
of thai court.

UNDUE [NFLUENOE.— TESTATOR'S RELATIONS WITH LEGATEE.
Carpenter v. ii;it<-h el al.

Xi;w BaMPBHTBE SUPREME OOUBT, l s * s .
(64 \ II 578.)

Carpenter, J. — The testimony thai Kendall, when he lived in
Tyngsboroughj attended the church of which Mia] Davis, the

172 UNDUE INFLUENCE. — FRAUD.

father of one legatee and grandfather of another, was a deacon,
and sat in the pew with him and his family, and that he acted as
guardian for the grandson, was competent for the purpose of
showing tlu' testator's relations to the Davis legatees, and afford-
tne a reason for his manifestation of interest in them. It was
open to the defendants to argue to the jury that legacies to
strangers indicated an unbalanced mind, and it was proper for
the plaiutifi to show that the legatees were not strangers. There
is no foundation for the objection that the evidence touching
Kendall's acting as guardian was secondary. No attempt was
made to show that he was a legal guardian. The plaintiff was
nqt precluded by the fact that he was not in law a guardian from
showing that in fact he took charge of and cared for the boy and
his property as a guardian would. The declarations of Diantha
and Charles W. Carpenter against tneir interest as legatees under
the will were incompetent ; they were not parties to the suit.
Atkins v. Sanger, 1 Pick. 192 ; Shailer v. Bumstead, 99 Mass. 112,
12S, 129 [given ante]. The question put to Ednah Hatch, asking
what her deceased husband said was the amount of the testator's
securities, was properly excluded as calling for mere hearsay. His
decease did not make his declarations competent. The act of exam-
ining the securities and computing their amount was immaterial,
and his statement was not admissible as a part of the res gestae.
Morrill v. Foster, 32 N. H. 358, 360 ; Ordway v. Sanders, 58 N. H.
132. The opinion of Emma L. Carpenter that the testator was
of sound mind was admissible. Hardy v. Merrill, 56 N. H. 227.
Whether she was qualified to give an opinion was a question of
fact for the trial court. Jones v. Tucker, 41 N. H. 546 ; Bundy
v. Hyde, 50 N. H. 116. The will itself was evidence tending to
show that the testator, when he executed it, was informed of the
amount and character of his property. The evidence that in
November, 1885, he was fully cognizant of the amount and char-
acter of his property, had some ter.lency, and, if he remained in
possession of his faculties, a strong tendency, to show that he had
the same knowledge a few months later, when he executed the
will and codicil. There was no presumption of law or fact that
Mason A. Carpenter controlled the testator's mind, and that the
codicil was invalid for that reason. State v. Hodge, 50 N. H.
510 ; Bank v. Getchell, 59 N. II. 281. Whether he did or did

EVIDENCE. 173

not control or improperly influence the testator was a question of
fact for the determination of the jury upon all the evidence, in-
cluding his relations to the testator, his acts and conduct in re-
spect to the making of the will and codicil, and the benefit he
derives from them. It was submitted to the jury with proper
instructions. Lord v. Lord, 58 N. H. 7, 11. The instructions
asked by the defendants in their third request were given. It
Mas not necessary that the court should adopt the defendant's
precise language. Other exceptions not urged in the argument
have not been overlooked. Judgment on the verdict.
Smith, J., did not sit. The others concurred.

UNDUE INFLUENCE.— EVIDENCE.
Tyler v. Gardiner.

New York Court op Appeals, 1866.

(35 N. Y. 559.)

Porter, J. — There is an almost wearisome monotony in the
conformity of the facts developed on the hearing, with the fami-
lial- and recognized indicia of contrivance and undue influence.
There are few of the reported cases, in which wills have been
condemned, presenting such a concurrence of circumstances un-
favorable to the establishment of the instrument. If they were
susceptible of contradiction or explanation, the sources of proof
were abundant. The respondent was a competent witness. Most
of the material facts were within her personal knowledge. She
was a prominent actor in all that related to the will, and in the
Beriea of transactions which led to so complete a revolution of in-
tention on the part of the testatrix. She was surrounded by a
numerous household : the important events were of recent occur-
rence, and they transpired at her own residence. When we find
the party, whose righl and inteiv-t it was to countervail the force
of the tacts by evidence, content to leave them unrebutted and
unexplained, and to abide by the conclusions to which they so
clearly tend, we have nothing to do bul to draw the inevitable
inference, and, applying the settled rules of law, to sustain the
rejection of the will. It may be thai the whole truth of the case
is not before as ; that fact- exist, which, if proved, would relieve

174 UNDUE INFLUENCE.— FRAUD.

it from some of its unfavorable aspects ; but we are bound to take
the evidence as we find it, and to give it effect in accordance with
our clear convictions.

It will facilitate a consideration of the legal questions involved,
to precede it with a condensed analysis of the more material facts,
grouped with reference, not merely to the order of time, but also
to their mutual dependence and relation.

The property of the testatrix was mainly derived from her
children, by voluntary and equal gift of their shares in their
paternal inheritance. That her ultimate estate came to be so
considerable, was mainly due to the fidelity and care of her son.
David, who relinquished a profitable business, at the age of thirty-
three, to assume the management of her property ; who devoted
himself faithfully to the object, without recompense, until he
was forty-six years old ; and who was then ignominiously dis-
missed by his mother, without cause, through the active and con-
trolling influence of a younger sister, who had recently become a
member of the household. He had been educated to a profes-
sion which he had never practiced ; had married, when he had
just expectations of a liberal provision from his mother's estate ;
and, so far as the evidence discloses, he had, at no time, been
wanting in filial duty or affection, or received from her a mark
of displeasure or unkindness down to the hour when, by a letter
written by her, corrected by his sister, and delivered by a messen-
ger, all being under the same roof, he was suddenly ordered to
leave her house.

Harry Beeckman was an orphan boy of thirteen ; an inmate
of the family, and dependent upon the bounty of his grand-
mother, only because she had been the donee of his mother's in-
heritance.

Mrs. Tyler was the only member of the family, who, independ-
ent of the testatrix, had a large property in her own right. She
left her father's house the year he died, and returned home at a
time when her mother bore the fatal marks of organic diseases,
which, within a twelvemonth, resulted in death. The daughter had
been favored by circumstances gratifying to a mother's pride and
giving prestige to her name. She was a lady of intelligence and
culture; her manners were engaging and attractive; she wrote
with facility and grace ; she was assiduous in her attentions to her

EVIDENCE. 175

mother, and soon brought her to feel, as she declared in one of
her letters, a copy of which was preserved and produced by Mrs.
Tvler on the hearing, not only that the society of her daughter was
agreeable to her, but that she needed her "sympathy and assist-
ance." This needful sympathy and assistance do not seem to
have been withheld; and from the time of the daughter's arrival,
their views became more and more concurrent, until they entirely
harmonized. The influence of Mrs. Tyler soon became apparent
in the family, and in all matters of importance it seems to have
been uniformly effective and controlling. She had seasonably
notified her brother in advance that she intended to return, and
that he must seek other quarters for himself, his wife, and his
children. To the latter proposition he did not accede, and his
answer, referring that question to his mother, in co-operation
with other causes, seems to have produced toward him a feeling of
unkindness on her part, in which, soon after she became an in-
mate of the house, her mother was brought to sympathize. It is
true that, when the request to the latter to send David away was
preferred, in the firs*- instance by one of Mrs. Tyler's children,
she promptly refused to comply, on the ground that he was her
child ; but this objection was readily overcome, and she was soon
afterward induced to yield to the request, and to dispatch a letter
to the son, in which this parental relation seems to have been en-
tirely overlooked. Indeed, in the subsequent letters, the exist-
ence of this involuntary family tie is alluded to in terms which
indicate an impression on her part that it was a matter of conde-
scension to acknowledge it, even for the purpose of invidious
comparison between him and her daughter.

In the brief period which intervened between the return of the
lister and the expulsion of the brother, the mother was brought
into a state of singular and causeless alarm as to the condition and
safety of her property, and she was led, in the subsequent letters,
of which Mrs. Tyler's memoranda were produced on the hearing,
to overwhelm him with groundless imputations of malfeasance,
deception, and fraud, iii the performance <>l his duties as her
gratuitous agent, and in the management of her perplexing and
diversified business affairs. She was also, in some way, made to

believe that lie had been guilty of u some fearful proceedings" to

his sister, <>f which the servants in the family had been eye-wit-

176 UNDUE INFLUENCE. — FRAUD.

nessci. Her letter shows that the servants were not her inform-
ants, find it is obvious that the reproach was wholly unmerited, as
there is not a shadow of foundation for it in the evidence.

The proof leaves no room for doubt that these later letters
were written with the privity of the sister, if not transcribed from
her so-called memoranda. The fact is undisputed that, during
most of the brief period in which these false impressions were
imbibed, the mother was a confined and suffering invalid ; that the
son was engaged, as usual, in the management of her general busi-
ness; that she was in the closest intercourse, if not under the im-
mediate influence, of Mrs. Tyler, who was most of the time in her
room ; and that the latter was the only party interested in alien-
ating the mother from the son, and the only party benefited by
the testamentary changes, which she introduced these letters to
explain. That her influence over her mother was active and con-
trolling is apparent, not only from the ultimate acquiescence of
the latter in her views, which were contrary to those she had pre-
viously entertained, but, also, from the significant circumstance
that, though the son repeatedly called at the house of his mother,
and continued to do so down to the month of Mav, he never
found his way to her presence ; that she then left home, and re-
mained through the summer at a private boarding-house in New
York, Mrs. Tyler visiting her there almost daily ; and that, on her
return to Castleton, and the near approach of death, though the
lawyer and doctor were promptly summoned, no message was
sent to her only son. So far as we have the means of judging
from these facts, from the memoranda produced by Mrs. Tyler,
and from the singular provisions of the will, Mrs. Gardiner re-
tained, to the hour of death, the false impression that David had
deceived and defrauded her, and that he had been guilty of wrongs
to his sister, too fearful to be spoken of either by him or the tes-
tatrix.

That will was made on her death-bed, in the presence and by
the procurement of her daughter, and in the absence of her son
and grandson. Her clergyman opportunely called on his dying
parishioner. He was excluded by the testatrix, but the execution
of the will was not suspended. She had never exchanged a word
on the subject with the draughtsman of the instrument until the
day of her death. She referred him to Mrs. Tyler, as the party

EVIDENCE. 177

from whom be was to take bis instructions ; and her inquiry on
that subject shows that she did not know whether they were writ-
ten or oral. She complied, however, as well as she could, with
his request for personal instructions, and answered such inquiries
as he felt it his duty to make. Mr. Clark had, in fact, been pre-
viously furnished with full written instructions, sent to him the
day before by Mrs. Tyler, with a note bearing date three days
prior to the execution of the will. They were in the handwrit-
ing of the daughter, and were of a nature which could scarcely
fail to excite the surprise of one who knew the testatrix, and the
situation and relations of the family. He declined to comply with
Mrs. Tyler's request that he should reduce them to form, without
confirmation by personal instructions from the testatrix. Though
his call was on the evening first named in Mrs. Tyler's note, as
that on which she wished him to bring the will for execution, she
intimated that the interview he proposed with her mother would
be inconvenient at that time, and deferred it until the following
morning. She alone was present when that interview occurred.
The inquiries made bv Mr. Clark were those suggested to his
mind by her written instructions. He made an appointment for
the execution of the will at five o'clock in the afternoon. Before
noon Mrs. Tyler sent a messenger to his office to expedite the
preparation of the instrument, and to have it brought in haste for
execution. She provided the attesting witnesses; was present at
the reading and signing; and rendered such assistance as the pros-
trate condition of her mother required.

On the day wheu these occurrences transpired, Mrs. Gardiner
was exhausted, vomiting, weak, signifying her wishes and assent,
sometimes by words and sometimes by noils. The gentleman
who drew the will conducted the matter with great propriety,
ami, perhaps, with more scrupulous caution than was entirely
agreeable, either to the mother or to the daughter. He seemed
impressed with the idea that the provisions he was directed to
insert called for some explanation. He pushed his inquiries as
fir .1- Ik; could, without :!|>|>;ireni incivility. In relation to the
gift by the testatrix to her son, of certain claims and advances, lie
ascertained thai they rested on no written evidence, and that .-he
could give him no specific information : but the general result of
hi.- interview- with the mother and daughter was to leave him
12

178 UNDUE INFLUENCE.— FRAUD.

under the mistaken impression that such claims really existed.
The idea that Mis. Gardiner had made advances toward the pur-
chase of David's farm, seems never to have been suggested in
any quarter, until it appeared in Mrs. Tyler's instructions. The
mother, of course, knew that she had never made any such ad-
vances; and it is difficult to resist the conclusion that she was
made to believe that her son had bought the farm with money
embezzled from her. The insertion of the provision, utterly
groundless as it was, could serve no practical purpose, except to
give to the will a seeming color of equality. Mr. Clark, also,
very properly, deemed it his duty to inquire as to the prospect of
the restitution by the government to Mrs. Tyler, which was to be
the condition of the enjoyment by David Gardiner of his inher-
itance. Neither of the ladies seemed able to furnish any infor-
mation on this point. That the idea originated with Mrs. Tyler
is shown, not only by the written instructions, but also by the
direct and affirmative evidence of one of the subscribing wit-
nesses. Mr. Clark felt bound also to inquire as to the grounds
on which she expected to obtain further damages against the city
of New York, in addition to those already awarded her, for open-
ing certain streets. Having been her attorney and counsel in
that matter, he, of course, recognized the absurdity of such a
claim. She replied with a vague intimation that she had been
assured by her friends that she could obtain such additional dam-
ages. Who these friends were, does not appear, otherwise than
bv inference. Her son had advised her that such a suit would
be hopeless ; and the only person by whom it seems to have been
regarded with favor was Mrs. Tyler, who made it the staple of one
of her instructions, and certified the claim to be just. She prob-
ably so supposed, as she directed the insertion of the bequest in
the will ; but, in the light of the evidence, it was valueless, ex-
cept as evincing a recognition of the propriety of introducing
one provision into the instrument, in which there should be some
regard to apparent equality in distribution.

The testatrix made the will under false impressions, as to the
relative circumstances of her son and daughter. She had enlarged
on the poverty of the latter, in conversation during the summer,
with the two ladies who were called by the respondent in support
of the will. She talked to Mrs. Stryker in relation to Mrs. Tyler

EVIDENCE. 179

and " the destruction of her property." She told Miss Cooper
that '''Julia was poor"; and added: "Don't think that I don't
care fur David, but I must take care of Julia." Mrs. Tyler, in
her instructions, speaks of " the losses of property she has sus-
tained, " omitting, of course, any reference to the property she
had nut lust, which she, perhaps, thuught inappropriate in that
connection, though it is alluded to in general terms in the will
afterward prepared by Mr. Clark; and Mr. Dayton, the tutor uf
her children, had previuusly heard her talking to her muther
about her losses. Mrs. Gardiner, herself, seemed to feel the
necessity uf some apology to Mr. Clark fur the singular previsions
of the instrument; and his attention was arrested by the circum-
stance, that, at the first of the two death-bed interviews, notwith-
standing her distress and difficulty of articulation, "she talked for
.-Mine moments about her daughter having lost her property, and
her desire to provide for Her, and that she trusted the others
would acquiesce in it cheerfully." The apology was inserted in
tin- will, and is the only material provision in the instrument not
traceable to Mrs. Tyler's written instructions. It is difficult to
attribute to any other rational cause, than Mrs. Card bier's sense
of the injustice of the will, her objection to its being read in the
presence of her physician, who was to attest it; her injunction
of secrecy when Mr. Clark told her that, though the precaution
was not usual, he preferred that the doctor should be pre'sent
when he read it; and her refusal to admit her clergyman, who
happened to call as she was about to affix her signature.

Mrs. Gardiner had, undoubtedly, testable capacity at the time
the instrument was executed, but she was in a condition to be
peculiarly exposed to the exercise of undue influence. Until she
became an invalid, she was a lady of fair intelligence, unfamiliar
with business, of an affectionate and yielding disposition, fond of

attention and deference, and not unconscious of the consideration
to which she was entitled, in virtue of her property and position.
She was more credulous than most of her sex. and repeated, from
time to time, to her female friends, spiritual communications,
which -lie supposed she had received at successive intervals from
her deceased husband, son, and daughter. In the later yearsof her
life she was a severe Bufferer f rom disease. When her daughter
came home, in November, Hi;:;, 8 he was feeble and emaciated, and

180 UNDUE INFLUENCE. — FRAUD.

during the winter she was mostly confined, not only, to her house,
tmt to her room.

The daughter was in the prime of life. The mother was infirm
of purpose, sick and old. She was soon imbued with false impres-
sions,, and brought to a condition of nervous and causeless suspicion
and alarm. She expelled her son from her house, and never saw
him afterward. Her subsequent communications with him were
very few, very bitter, and all in writing. The letter of the 10th
of February, directing him to leave, was, undoubtedly, composed
by her, though corrected, if not prompted, by her daughter. It
bears upon ks face the evidence that she was not an easy and
practical writer. The letter of the 9th of March, and those which
followed it, are in a very different style. If they were designed
for future use, as evidence furnished by her, of the truth of the
groundless accusations with which they abound, they were well
framed for such a purpose. If they were intended to repel all
possible explanation, and to cut off even the hope of any future
reconciliation, they were couched in terms appropriate to that end.
If they were really composed by her, it is quite apparent that, in
the month which intervened between her first and second letter,
she had made unexampled progress in her literary acquirements,
observable alike in her style, her punctuation, and her accuracy in
the use of language. They are marked, however, by no diminu-
tion of bitterness, and no observance of the usual forms of courtesy,
except that when the daughter is referred to, she is spoken of in
terms of almost extravagant encomium and deference. Whether
the son was right in his conviction as to their authorship, to which
he testified on the hearing, is only matter of inference from the
production of the so-called memoranda, not shown to be in the
handwriting of the mother, and from the omission of any denial
by his sister, to whom he imputed the dictation of the letters.

That the death-bed disposition, by Mrs. Gardiner, of her prop-
erty, was entirely opposed to her former deliberate purposes, and
her convictions of equity and justice, before her faculties were
impaired by disease and infirmity, is indisputably established by
the will of 1S58.

She was then fifty-nine years of age, and in perfect health. Her
son had the same property at that time which he had at the date
of the will of 1864, consisting of a farm, mortgaged for the entire

EVIDENCE. 181

purchase-money, except the $5,000 paid from his earnings in
California. Her property was the same in 185S as in 1864, except
so far as its value had been augmented in the interval under his
charge, and through his continued services and supervision. Her
grandson, Harry Beecktnan, was, at both dates, an inmate of her
family, and nothing had occurred in the six years intervening to
alienate the affections of the testatrix, or to add to his means or
expectations.

Mrs. Tyler, at the date of the first will, was dependent on such
provision as her husband might make for her, in case she survived
him. When the last was made, she had a considerable estate in
her own right.

By the original will, the testatrix gave the twelve acres on
which she lived, and the movables thereon, to her son. The
place was subject to the Roosevelt mortgage, the payment of
which was not charged on the residuary devisees, as it w r as in the
subsequent will, when it was given to Mrs. Tyler. All the residue
of her property, she gave, in equal shares, to her son, her daughter,
and her grandson.

The contrast between the two instruments is striking. The first
makes precisely such a disposition of her property as her children
would naturally expect, in view of the sources from which it was
derived, the services of the son by whose care it had been pre-
served and augmented, and the common claims of affection and of
blood. If she ever had made any advances toward the purchase
of David's farm, she knew it then ; for he had bought it five years
before, and all that he paid toward the price was paid at that time
If she disapproved the mode in which he transacted her business,
she knew it then; fur ho had transacted it through the preceding
seven years, in tin- same mode, which was continued to the year of
her death. If ho had then rendered services worthy of special
recognition in her will, the force of the claim was not diminished
by ~i.\ more years of Bimilar service without recompense.

Iii new of all these circumstances, it is difficult to resist the
conclusion that the death-bed will of L864 was the result of the
same controlling influence which led, a few months before, to the

expulsion of the BOD from his mother's house. In the light of the
surrounding and antecedent facts, the testamentary instrument
carrie- with it its own condemnation.

182 UNDUE INFLUENCE. — FRAUD.

The precise case is presented, in which we are legally bound to
compare the provisions of the two wills. (Delafield v. Parish, 25
N. Y. 35 ; Marsh v. Tyrrell, 2 Haggard 87, 110.) In the first of
these cases, a leading and controlling ground of the decision was,
the hostility of the provisions of a codicil, executed by a testator
in a condition of helplessness which exposed him to undue influ-
ence, to those of an antecedent will, made when he was in health,
evincing deliberation and care, and free from all suspicion. The
case of Marsh v. Tyrrell, which this court has repeatedly had occa-
sion to approve, was one where the husband was the principal
beneficiary under a will made by his wife, under circumstances, in
many respects, similar to those which concur in the case at bar.
In pronouncing the judgment of the court, Sir John Nicholl
said : " In inquiring, then, into the factum of the latter will, it
becomes material to examine the probability of this great change
of intention, and it becomes the more necessary, if, at the time of
making the disposition, the capacity was, in any degree, weakened
or doubtful ; still more, if the husband, in whose favor this great
change is made, and who, from the relation in which he stands to
the deceased, must almost necessarily have great influence and
authority, should be the person originating and conducting the
whole business of the new will. To examine, then, the probability
of this change, it may be proper to consider the grounds and
circumstances of making the first will. If they were made upon
hasty, capricious, temporary considerations, the departure from it
becomes less improbable ; but, if made under motives long exist-
ing, and quite naturally inducing it, the adherence to it will be the
more strongly presumed, and the circumstances to account for the
complete revolution in her intentions will be required to be more
forcible." After reviewing the particular facts, he adds : " If,
then, in addition to these circumstances, first, that the disposition
in the new will is highly improbable ; next, that the husband had
been endeavoring to get at her deeds and testamentary instruments ;
and further, that she was in this state of doubtful capacity ; if, in
addition to all this, we find that the husband, as far as the evidence
goes, originates and conducts the whole business, representing, or
rather misrepresenting, the previous facts, and being present at
all the material parts of the transaction, the case proceeds to the
evidence of the factum under presumptions of fraud and imposition,

EVIDENCE. 183

which hardly any evidence would be sufficient to repel. It would,
at least, be extremely difficult to show that she was a free, as well
as a capable, testatrix; to show that she had a real, disposing, testa-
mentary mind, and an intention to abandon all the dispositions of
her former will, made so carefully and adhered to so firmly. The
strong presumption would be, that, in whatever she said and did,
however it might impose upon the witnesses, she was a mere
instrument in the hands of her husband."

In the leading case of Blewitt v. Blewitt, the issue was as to the
execution of a will, made in feeble health, by a testator sixty-nine
years of age, and under circumstances which exposed him to undue
influence, by a lady, who had strong claims upon his justice as
well as his bounty. That case, like this, presented unfavorable
features peculiar to itself; but. among those common to both,
were the weakness and exhaustion of the party ; the entire de-
parture from previous testamentary dispositions ; the false impres-
sions under which the will was made ; the active agency of the
beneficiary in procuring it to be drawn ; her presence at the testa-
mentary act, and the absence of those who had, at least, equal
claims upon the justice of the testator. The eminent jurist, by
whom the opinion was delivered, after alluding to the force of the
presumptions against the instrument from its hostility to previous
testamentary provisions, proceeds to say: "It is difficult to con-
ceive a case in which that presumption would exist with more
force than in the present, looking to the former wills,. to the con-
dition of the deceased, to the parties in whose favor the codicil
was to be made being at the time about the deceased, and to the
absence of Other parties, to whose prejudice these alterations were
to operate. In such a case, the fullest proof of capacity, equal,
not merely to some testamentary act, but to this important revoca
ti'.n of former dispositions, and to a new direction, given to a large
portion of his property, should be dearly established ; and, in this
instance, the condition of the deceased, the possession of him by
the parties to be benefited, and the false impressions made upon

hie mind, have, also, a strong appearance of fraudulent circumveu

fcion, requiring the case to be proved by the most satisfactory
evidence." (4 Haggard, 463.)

The application of this recognized legal test to the present will,
upon the state of facts disclosed by the evidence, raises a strong

184 UNDUE INFLUENCE. — FRAUD.

presumption of undue influence, which the proponent's proof
wholly fails to repel. The original will, undoubtedly, expressed
the intelligent and deliberate purposes of the testatrix. The dis-
position which it made of her property was, obviously, equitable,
rational, and just. Its language is simple and direct. The reader
is not left in doubt as to the purpose or the motives of the testa-
trix. It contains no false suggestions, no substantial gifts to one,
in the form of seeming gifts to another, no apology for its own
provisions, and no admonition to filial acquiescence in parental
injustice. It commits the charge of the grandson's estate, during
the period of nonage, to the son, who had so faithfully and suc-
cessfully managed her own, and it does not name a stranger as
executor, to the exclusion of her own family. So far as the
evidence shows, this instrument, executed in July, 1858, was in
existence in May, 1864, and remained, as an authentic and un-
revoked expression of her deliberate will, until the very day of
her death.

The subsequent will bears upon its face the marks of indirec-
tion, as well as of singular contrivance and forethought. It con-
tains peculiar and unusual provisions. It locks up the property
devised to the son, and commits the key to the custody of his
younger sister, whose hostility was well known to the testatrix.
It anticipates and provides for the unusual contingency of a pos-
sible removal of either the son or the daughter out of the United
States; and, to guard against any fraud upon the intent of the
provision, it adds that such removal must be for a permanent resi-
dence. The gift of the homestead to the daughter is simple and
absolute. The gift of the residue of the estate, real and personal,
is trammeled with five " express conditions "; and it will be seen
that they were conditions which could not be complied with,
except by such of the devisees as might be fortunate enough to
have ample means for that purpose at their command. A novel
penalty is imposed upon the son for supposed misconduct of the
federal government, in respect to which no blame is imputed to
him. The entire income of the share, of which he is the ostensible
devisee, is given for life to his sister, to her own use and benefit,
unless the damages which she is alleged to have sustained on her
James River property, and her Point Comfort property, be reim-
bursed by the federal government ; but the theory of reimburse-

EVIDENCE. 185

ment is not to be extended to her. She is, from that time, to re-
ceive his income no longer, but what she has theretofore received
she is to retain in her own right.

Reading the will in the light of the evidence, we find that, by
the changes it effects in the testamentary dispositions, a large
share of the inheritance, which would otherwise have gone to the
irrandson, is transferred to the daughter, who is substituted as
trustee in place of the son, and she is to receive his income during
his minority, and to apply so much of it as may be necessary to
his maintenance, education, and support. The devise to the
grandson is fettered with a limitation over to her and her brother ;
in case either of his death before he reaches the age of twenty-
one, whether with or without children, or of his death afterward,
without children, whether he die married or unmarried. It is
scarcely necessary to add, that there was no such provision in the
original will, and that it had its origin in a special clause in Mrs.
Tyler's written instructions. In the light of the evidence, it also
becomes manifest that, of six principal clauses in the will, three
have no practical operation or apparent purpose, unless by way of
palliation or apology for the provisions of the other three. It is
due to the draughtsman to bear in mind that the limitation to the
term of Mrs. Tyler's life, of the gift to her of the income of her
brother, was a departure from her instructions, and was only as-
sented to by the mother, on his suggestion that in the original
form it would be illegal.

A still more striking illustration of the diplomatic indirection
which marks the will, is found in the clause charging, personally,
upon the residuary devisees, the payment of all the debts of " the
testatrix. Even if we dismiss from our view the undisputed fact,
that she held the hulk of the property by free gift from her children,
it ie not easy to believe that a mother, with an intelligent compre-
hension of the effect of such a provision, would personally charge
her only son with the payment of three-eighths of her mortgages,
and other debts, amounting to nearly $50,000, knowing that his
property consisted only of a small farm, mortgaged for the greater

portion of the purchase money ; that, by another provision of her
will, he was cul off, in all human probability for life, from the in-
come of hi- inheritance ; and that, by an additional clause, she had
prohibited any partition or sale of the property devised, without

186 UNDUE INFLUENCE.— FRAUD.

his sister's consent, unless on the condition of becoming a volun-
tary exile from his country. It is equally difficult to suppose
that the effect of the provision was not comprehended by the
writer of the instructions, who, originally, proposed to make it
still more stringent by directing the payment of such debts,
whether principal or interest, " as they fall due' n ; a clause so un-
reasonable, under the circumstances, that the draughtsman took
the responsibility of omitting it in preparing the will for execu-
tion. The payment, however, of three-eighths of these debts is
made an "express condition" of the ultimate benefit of the devise
to the son, after the death of the sister. So far as the proof en-
ables us to judge, he was without the means to make such pay-
ment. The property nominally devised to him was so locked up,
in pursuance of Mrs. Tyler's instructions, that he could not raise
the amount either by sale or by mortgage of his interest ; and the
practical effect would be, in the ordinary course, a forced sale of
the property, Mrs. Tyler being the only member of the family
whose private fortune would enable her to become the purchaser ;
and who, irrespective of this resource, was provided with ample
means, under the express provisions of the will. It is incredible
that the mother could have had an intelligent and deliberate pur-
pose to put her son so completely in the power of a sister, who
entertained unfriendly feelings toward him, and who was not
merely succeeding to the principal portion of his birthright, but
succeeding to it through a title derived from him, by free gift.
Such a purpose, on the part of the mother, would have been, not
only ungrateful, but unnatural. If it originated, however, with
the daughter, there was much to palliate it. Her relations to her
brother were not such as to lead her to appreciate its injustice.
She was under no special obligation to him ; and it was natural
for her to feel that her own interests, and those of her children,
were those in which she was most nearly concerned. She had the
right to exercise the influence springing from family ties, services,
affection, or gratitude, to the extent even of importunity, without
subjecting herself to just censure or reproach. So, in regard to
the orphan son of her dead sister, it was very natural for Mrs.
Tyler to feel that she had a stronger claim to inherit his estate,
than his future wife, or his children born before he arrived at the
age of twenty-one ; but it is impossible to believe that Mrs.

EVIDENCE. 187

Gardiner, in disposing, at her own death, of a property, for a
large part of which she was indebted to the bounty of a deceased
daughter, could, seriously, think it right to tie it up in the hands
of that daughter's only son, to fetter his power of alienation,
either by deed or by will, and to affix a limitation for the benefit
of her own heirs, to the exclusion of his wife and children. If
the last will is established, it must be by closing our eyes to the
obvious legal effect of facts established by undisputed evidence,
and falling back on the arbitrary maxim, sic volo, sic jiibeo.
This we cannot do without subverting settled rules of law, which
we are bound to maintain and enforce. Another significant and
controlling feature of the case, in view of the helpless and dying
condition of Mrs. Gardiner, is the fact that the written instruc-
tions for the will were prepared by the principal beneficiary.
The rule of law on this subject is well-settled. It has been re-
peatedly announced by this court, and perhaps nowhere with
more precision and directness than by the present Chief-Judge, in
pronouncing judgment on the will of Henry Parish. " The
maxim, qui se scripsit hceredem" said the learned judge, "has
imposed by law an additional burden on those claiming to establish
a will, under circuit istances which call for the application of that
rule ; and the court, in such a case, justly requires proof of a
more clear and satisfactory character. Such a condition is ex-
hibited by the testimony in the present case. The two codicils
under consideration were exclusively for the benefit of Mrs.
Parish, with the exception of the charitable gifts; and although
they were not actually written by her, yet they were drawn up at
her suggestion, upon her procurement, and by counsel employed
by her. She prepared and gave the instructions for them, and, in
judgment of law, they must be regarded as written by herself.
• Facit per alium, facit per 8e? y (Delafield v. Parish, 25 X. Y.
35.)

[n this case there is no proof or pretence that the instructions

were either written or dictated by the testatrix. It appears, from

the testimony of the draughtsman, that Mrs. Gardiner expected
them to proceed from Mrs. Tyler, ami not from herseli ; and that

die did not know, on the day the will was executed, whether such
instructions were written or oral, though it is proved that they

were written by the daughter two days before she transmitted them

188 IXDUE INFLUENCE.— FRAUD.

to the draughtsman. The use in the instructions of the mother's
name is not evidence that they were dictated by her ; and in the
absence of such proof, upon the state of facts here shown, the legal
presumption is that they were not so dictated, and that they were
prepared by the party in whose handwriting they appear. (Ingram
v. Wyatt, 1 Haggard 384, 439 ; Croft v. Day, 1 Curteis 853, 856;
Baker v. Batt, Id. 125.) In the case first cited, it was objected
that the rule was severe in its operation, as the party who wrote
the instructions could not testify ; but the court said : " They are
in the handwriting of Richard Wyatt, the father, a quarter as un-
favorable, perhaps more so, as feeling a stronger interest than
even Henry Wyatt himself. It has been said that Richard Wyatt
was incapacitated by the state of his faculties from giving evidence ;
that lie could not be examined ; that he might have proved receiv-
ino- these instructions from the deceased himself. That is mere
conjecture, which cannot compensate for proof. If the evidence
is by accident defective, the misfortune, especially in such a case
as the present, must fall upon the party upon whom the burden of
proof lies." (1 Haggard 439.) In the present case, even this con-
sideration cannot be urged. Mrs. Tyler was at liberty to testify,
but chose not to be examined, and to leave the matter as it
stood.

Keeping in view, as we must, the dying condition of Mrs.
Gardiner, at the time the transaction in question occurred, the
force of the fact that the beneficiary wrote the instructions and
originated the will is not necessarily overcome by the circumstance
that they were afterward accepted by the testatrix, and that she
assented to the will in which they were embodied. The observa-
tions, in one of the opinions delivered in the Parish case, are
specially pertinent to this point. " The whole evidence of the
case," says the learned judge, " places him in a position, where an
enfeebled intellect, though far from losing its intelligence and its
capacity to do ordinary business, may well be presumed unequal to
resisting reiterated importunities from one in her relative position.
It would seem plain that she could have exercised an influence in
regard to this codicil which would not leave him to the exercise of
his own free will. Are there any circumstances in this case to
show that she did so ? Or, does it appear that, having the power,
she gained a victory over her naturally excited feelings, and mag-

EVIDENCE. 189

nanimousl y forbore to use it ? The whole burden of this codicil
is for her benefit. Supposing that it was made under her con-
trol, se scripsit hceredem ; nor, upon this supposition, would Mr.
Lord's presence, and the fact that Mr. Parish assented intelligently,
and deliberately, and in detail, to the provisions of the instrument,
relieve her from that position ; for the influence was easily exer-
cised, when once its subject had been brought to submit to it, and
in a way not at all suspicious, a way not likely to be observed by
one who had no idea of its existence." (25 N. Y. 92.)

Thus Swinburne says, in commenting upon the effect of a testa-
tor's assent under similar circumstances : " It is to be presumed
that the testator did answer yea, rather to deliver himself from the
importunity of the defendant, than upon devotion or intent to
make his will, because it is, for the most part, painful and grievous
to those that be in that extremity to speak or be demanded any
question, and, therefore, are ready to answer any question, almost,
that they may be quiet; which advantage, crafty and covetous
persons, knowing very well, are then most busy, and do labor with
tooth and nail to procure the sick person to yield to their demands,
when they perceive he cannot easily resist them, neither hath time
to revoke the same afterward, being then passing to another world.
And, therefore, worthily, and with great equity, is that to be
deemed for no testament, when the sick person answereth yea, the
interrogation being made by a suspected person, as well in respect
of presumption of deceit in the one, as of defect of meaning of
making a testament in the other. And this is true, especially
when there is a former testament ; for that is not to be revoked by
a Becond testament, made at the interrogation of another in manner
aforesaid." In the subsequent passage, he adds: " But, what if a
will be brought to the sick man. which, being read over in his
hearing, and he demanded whether the same shall stand for his
will and testament, answereth yea, and it doth not appear whether
the same was written and prepared by the direction of the sick
man. or else of his kin-folk and friends, whether it is to be pre-
sumed to have been prepared by his direction or by theirs? It

ineth. by the rich man, in favor of the testament ; but, when it.

appeareth, indeed, to have been made ready by others, then, albeit
the testator, being interrogated, do answer as before, il is presumed
that the question was made l>y the suggestion or onsetting of the

190 UNDUE INFLUENCE. — FRAUD.

executor, and so the testament is notgood.'" (Swinburne on Wills,
part 2, sec. 25).

Those are the old landmarks of the law, and the judges should
be the last to remove them. There is nothing in the present case
to call for a departure from well-established rules, founded
in plain principles of justice, and essential to the protection of
rights and the prevention of fraud. They are tributary alike to
tlie security of the living, the repose of the dying, and the harmony
of the family relation.

So far as the proof discloses, the first connection of the testatrix
with this will was within eight hours of death. Its essential pro-
visions are directly traceable to the written instructions, which
were prepared three days before by the daughter, who thus secured
to herself the bulk of the mother's estate.

When the principal beneficiary under a will, prepared for
execution by a party worn down by disease and close upon the
verge of death, assumes the responsibility of initiating it, of pre-
paring formal instructions, of employing the draughtsman, of
selecting the witnesses,' of being present at every stage of the pro-
ceedings, and of excluding those to whose inheritance a new direc-
tion is given, it behooves such beneficiary to be provided with
evidence that the instrument expresses the honest and spontaneous
purposes of the person who is called upon, at such a time, to reverse
the provisions of a previous testamentary disposition, made in
health and strength, in favor of those having clear claims upon the
justice and bounty of the testator. (Delafield v. Parish, 25 N. Y.
35; Lee v. Dill, 11 Abb. 214; Lake v. Eanney, 33 Barb. 49;
Bergen v. Udall, 31 Barb. 9, 25 ; Crispell v. Dubois, 4 Barb. 397;
Marsh v. Tyrrell, 2 Haggard 87, 110 ; Barry v. Butlin, 1 Curteis
638.)

The studied privacy attending the preparation and execution of
the will, the constant presence and vigilance of the principal bene-
ficiary, and her omission to advise the son and the grandson of her
mother's approach to death, are familiar and marked indicia of
the exercise of undue influence, under circumstances like those de-
veloped by the evidence. (Crispell v. Dubois, 4 Barb. 397 ■ Dela-
held v. Parish, 25 N. Y. 41, 42.) Swnnburne, with his usual
qnaint and pithy directness, speaks thus of the inferences deduci-
ble from this species of evidence : " If the wife, being made exec-

EVIDENCE. 191

utrix, or any other person benefited by the testament, understand-
ing that the testator is about to alter his will, will not suffer his
friends to come unto him, pretending, peradventure, that he is
fast asleep, or in a slumber, or the physician gave in charge that
none should come to him, or pretending some other excuse, or
else, all excuses set apart, do, for charity's sake, shut them forth of
the doors ; in these cases the testament is void, in detestation of
such odious shifts and practices." (Swinburne on Wills, part T,
sec. 18.)

The will was made by the testatrix under two false impressions,
which went to the very root of its provisions; one, that her daugh-
ter was poor, and the other, that her son was faithless and dishon-
est, and that he had purchased his farm with her money. That
these were the operative inducements is assumed on the part of
the proponent, as well as the contestants. The influence of the
first is apparent upon the face of the will, and is established by
extrinsic evidence elicited from the witnesses called to support it.
The influence of the second is not only shown by the provisions of
the will, but by the letters introduced by the daughter to account
for them. In view of the prostrate and dying condition of the
mother, of the fact that the will originated in the instructions
written by the daughter, and of the various indicia of fraud which
surround the whole transaction, the case is within the principle
settlci 1 by the successive decisions of the Chancellor, of the Su-
preme Court, and of this court in the case of Lansing v. Russell.
It is to be regretted that the very able opinion delivered by Judge
Marvin in this court is unreported, but it demonstrated, with irre-
sistible clearness and force, the correctness of the rule settled in
the courts below; that when the beneficiary is the active agent in
procuring the execution, by one in ext '/■> mis, of an instrument, dis-
turbing dispositions previously settled, and where the transaction
is surrounded by the usual indicia of undue influence, he is called
upon to show thai the inducements which confessedly led to the
change were not unfounded and illusory. (3 Barb. Ch. 325, 340 ; L3
Barb. 510, 522, 526.) In the present case, there ool only is an
absence of Buch evidence, bul it is proved, affirmatively, thai the
impressions under which the change was made were false.

It i- true thai the burden of establishing imposition and undue
influence rests, in the first instance, upon the party bj whom it is

192 UNDUE INFLUENCE. — FRAUD.

alleged. Fraud is never to be presumed from the mere concur-
rence of temptation and opportunity, or from the mere fact that
the chief actor is also the principal beneficiary. It must be estab-
lished by affirmative evidence. It is thus established, however,
when facts are proved from which it results as an unavoidable in-
ference. When such evidence is furnished, the burden of repel-
ling the presumption, to which it leads, is cast upon the party to
whom the fraud is imputed.

It is not to be supposed that fraud and undue influence are or-
dinarily susceptible of direct proof. Subscribing witnesses are
called to attest the execution of wills, but not the antecedent
agencies by which they are procured. The purposes to be served
are such as court privacy rather than publicity. " In some
cases," as this court said in the case of Sears v. Shafer, " un-
due influence will be inferred from the nature of the transaction
alone ; in others, from the nature of the transaction, and the exer-
cise of occasional or habitual influence." (2 Seld. 272.) The
grounds for imputing it, as Sir John Nicholl said, in the case of
Marsh v. Tyrrell, " must be looked for in the conduct of the par-
ties, and in the documents, rather than in the oral evidence. The
necessary inferences to be drawn from that conduct will afford a
solid and safe basis for the judgment of the court. "Where the
oral evidence harmonizes with those evidences, a moral conviction
rightfully follows ; but the depositions, where they are at variance
with the conduct of the parties, and with the res gestae, are less to
be relied upon." (2 Haggard 84.) It was held, in this State, by
the Court of Errors, that a circumstance indicative of undue influ-
ence was the fact, common to that case, and to this, that the donor
was brought, before the execution of the instrument, to a state of
causeless alarm as to the condition of his property, and of ground-
less suspicion against members of his own family. (3 Cow. 537,
572.) So, in the Parish will case, it was said, in the course of the
comments upon the circumstances, raising a presumption of undue
influence by the principal beneficiary : " Direct evidence of her
control in these matters, of her actual exercise of undue influence
in procuring her will to be executed by him, could hardly be ex-
pected. The means of keeping the influence out of sight were too
many, and too easy of application. But, when such is the array of
circumstances, when such a result is attained without any more

EVIDENCE. 193

substantial, apparent cause, we are justified in saying, from
the evidence, that the only cause to be inferred, which is in the
least degree adequate to produce the result, is a long-continued,
persistent, overpowering influence, to which his condition rendered
him peculiarly subject, and which she was as peculiarly in a posi-
tion to exercise." (25 X. Y. 95.)

In the present case, all the controlling facts tend to one inevita-
ble conclusion. "When the antecedent and surrounding circum-
stances are grouped in their appropriate relations, they carry to the
conscience and the understanding the clear conviction that, when
the mother affixed her signature, she was executing the daughter's
will. It is no sufficient answer to the presumption of undue infiiv
ence, which results from the undisputed facts, that the testatrix
•was aware of the contents of the instrument, and assented to all its
provisions. This was the precise purpose which the undue influ-
ence was employed to accomplish. That consideration was urged
in the case of Bridgman v. Green; but Lord Chief Justice Wil-
mot very properly replied, that it only tended to show, more
clearly, the deep-rooted influence obtained over the testator. He
added: "In cases of forgery, instructions under the hand of the
person whose deed or will is supposed to be forged, to the same
effect with the deed or the will, are very material ; but in cases of
undue influence and imposition they prove nothing, for the same
power which produces one produces the other." (Wilmot, 70.)
In the case of Huguenin v. Basely, Lord Eldox said : ''The ques-
tion is. not whether she knew what she was doing, had done, or
proposed to do, but how the intention was produced." | l I V~e
299.) In a case somewhat analogous to the present, where the re-
lations of the parties wore reversed, and the execution of a deed
was obtained by undue influence of the parent over the child.
Judge Emot] said: "If the mind of the donor was broughf to a
purpose, preconceived by the parent for his own sole advantage
by an influence which she could nol escape in the circumstances in
which she was placed, and which was deliberately used to effect
such a purpose, then that influence, or its exercise, was undue and
improper." (31 Barb. 25.)

We think the surrogate was right in rejecting the instrument
propounded for probate; and we have nol arrived al this conclu-
sion, without giving to the que tions, raised by the respective par-
L3

194 UNDUE INFLUENCE. — FRAUD.

tics, that full and careful consideration winch seemed due to their
interest and importance.

It is proper to add, that, if we had arrived at a different con-
clusion, the judgment of the court below must still have been
reversed. As that decision was founded upon a conclusion on a
question of fact, adverse to that of the surrogate by whom the will
was rejected, the Supreme Court had no authority to adjudge that
the instrument be admitted to probate, but should have coupled
its order of reversal with a direction for a feigned issue, in ac-
cordance with the provisions of the statute. (2 K. S. 66, sec. 57 ;
Alston v.Jones, 10 Paige 100; Auburn Theological Seminary v.
Calhoun, 25 N. Y. 428.) That question, however, becomes unim-
portant, as we think there was no error in the decree of the surro-
gate. An appellate court has no authority to direct a feigned
issue, unless it arrives at a conclusion on the question of fact ad-
verse to that of the original tribunal.

The judgment of the Supreme Court should be reversed, and
the decree of the surrogate rejecting the will should be affirmed.

The foregoing opinion was concurred in by Davies, Ch. J., and
Wright, Leonard, and Morgan, JJ.

Peckham, J. (dissenting). The probate of the will was denied
by the surrogate upon the ground that the respondent, Mrs. Tyler,
had exerted undue influence over the testatrix. The Supreme
Court were unanimously of opinion that no such influence was
shown.

It is conceded that the will was executed in legal form — all
the proof required by law for that purpose, was given. The
burden of its impeachment then rested with the contestant. It is
true the contestant makes a point that the testatrix was incapable
of making a will from the time Dr. Clark first saw her, on the 2d
of October, 186-1, until she died, on the 4th. But there is no pre-
tence for such a position in the evidence. The testimony of all
the witnesses proves that her mind was sound and clear. One
witness (the defendant himself) sought to qualify her capacity at
another time. He is the only witness who intimated that his
mother's faculties had failed in any degree. In his testimony he
says : " Her mental powers, for the year prior to her death, did
not appear so strong as they had been some two or three years pre-

EVIDENCE. 195

viously. I thought I saw a falling off iu her mental faculties."
The only commentary necessary upon this judgment of the son,
as to his mother's comparative mental condition during the last
year of her life, is the fact that, for the last eight months of her
life he ru ver saw her. All the witnesses who did see her durino-
that time are unanimous in saying that her mind was "sound and
clear." Mrs. Stryker, with whom she boarded for some three
months of that time in Jsew York, and who saw her every day,
says her mind was " perfectly clear and bright." Miss Cooper,
who saw her very frequently, almost every day, during the same
time, says, she was of "sound mind, perfectly sound"; and so of
other witnesses. I'esides that, three witnesses testified to the
soundness and clearness of her mind when she executed this will.
She died within four or five hours thereafter of bronchitis, which,
like consumption, usually leaves the mind clear, up to the close of
life. While in New York, though in delicate health, and under
the care of physicians, she was able to attend to business and walk
out, and did walk out, very frequently; she was not confined to
the house. The question in the case, then, is, was this will pro-
cured by undue influence? The burden of proving such influence
rests upon him who asserts it. It is alleged that the deceased was
easily influenced. "Who proves this allegation? The same and
the only witness — the son himself. On the 5th of January, after
giving hi.- opinion as to "a falling off in her mental faculties," he
adds: " Mrs. Tyler appeared to have the most influence over her
during the lasl year of her life." Mark, that for the last eight
months of that year, he had never seen his mother. Such an
Opinion, based upon no facts, if evidence at all, is not worth, and
should not receive, the slightest consideration.

I have examined this case with care, and I have not been able
t" find in il the marks that usually attend a will obtained by undue

influence. It is urged, as an evidence of such influence, that the

deceased sent her son and his family away from her house to his
own h0U8e. The act was right, eminently right. There were
twenty persons in one bouse, and this son himself testified that.

"the house was \rvy much crowded. \ir\ uncomfortably so."
Who Bhould leave '. The daughter, a widow, with six children,

with no home elsewhere, or the sun \ a man, with a wife and
three children, and " one of the handsomest farms on the island "

196 UNDUE INFLUENCE. — FRAUD.

to go to, within two and one-half miles of his mother. Should
she request her son to go to his farm, " one of the best on the isl-
and," or should she send her daughter, with her six children, into
the street? Any man, with the heart of a brother in his bosom,
could easily decide that question. The mother did as a kind mother
ordinarily would, she sought to keep them all in her house, though
to her groat discomfort. But the peace of the family, as she said,
required their separation. She thought David did not treat his
sister kindly — he was not glad to see her when she returned. It
is true that his letters show a great readiness to quarrel with her,
and they heap gross personal abuse upon his sister. They, in fact,
quarreled, and, as to this question, it is immaterial which was to
blame. They must be separated ; and in a letter, dated February
10, commencing " David," and indorsed " Mr. Gardiner," not so
addressed, in kind terms she expressed her anxiety to have the
occupation of her house, as she found herself " too uncomfortable
to endure it any longer." An interlineation of part of a line was
in her daughter's writing. The mother's decision, as to which one
should leave, was the decision that every true woman in the land
would have made, under like circumstances.

In a letter to his mother, written on the 14th of March, after
he had left the house, the son says : " I was fully aware of the
discomforts and inconvenience to which you submitted so patiently,
in a crowded house, and with impaired health. It appeared to me
quite unnecessary — certainly, I was not the cause of it." He not
the cause? Then who was? Did his family (himself and wife,
three children and servant,) add nothing to the crowd ? Surely,
his widowed sister and her children had as much ri^ht as this son
and his in her mother's house. In the same letter he adds : " Had
I left your house otherwise than at your request, I could not have
felt that I had done right toward you." This would look as if he
thought he had been staying there for the benefit of his mother,
not his own. Yet, when requested to leave, and allowed to go
to his own farm, this jealous, suspicious son is greatly outraged.
Under date of the 8th of March, he complains to his mother that
he has been " thrust from her presence with a family of little ones,
through a course of deception, misrepresentation, and intrigue
practiced upon her." This " deception," etc., is emphatically de-
nied by his mother. But, under the facts, as conceded by the son

EVIDENCE. 197

(of an overcrowded bouse, causing "discomforts and inconvenience
to a mother with impaired health "), how unmanly and unjust his
complaints at the action of his mother.

It is, also, insisted, as an evidence of undue influence, that the
intestate labored under a misapprehension of facts, and that this
alleged delusion is, that she was induced to believe that her daughter
was poor and her son rich. The will and the testimony both show
that deceased knew the actual facts as to each ; she stated them
several times, and they are nowhere contradicted. The deceased
never said in her will, or elsewhere, that her son was rich. She
said, and its truth is not denied, that he had one of the handsomest
farms on the island, and his wife's father was rich. The character
of the farm is not denied, and the wealth, of the wife's father is
proved to be a fact. As to the poverty of her daughter, the
deceased knew the daughter had some property in Virginia, but
she also knew that she had suffered great losses during the civil
war. She made the larger provision for her, because, as she ex-
pressly stated in her will, her daughter had "been subjected to
much injury and loss during the existing war, and had been obliged
to leave her home and come North.' 1 No witness denies a word of
that statement. It is conceded that the daughter had some fifteen
hundred acres of land in Virginia, on the James river, and she had
a summer house and some three acres of land near Point Com-
fort. In the will this property is particularly mentioned. She
gives her the income of a larger share <>f the city property lot-
life, ••unless the loss and damage which her property, situated on
the James river, and her property situated near Old Point Com-
fort, in the State of Virginia, shall have been sooner restored to
her by the federal government." It appeared, from the testimony,
thai the farm of fifteen hundred acres "was in ruins"; that the
furniture in the dwelling was all destroyed, even to the "curtains."
There i- no evidence in the case as to the value of the daughter's
property in Virginia. It could afford her no income none what-
ever. If we might refer to our individual knowledge and infor-
mation a- to auch land, we should not place a high value upon the
worn out land of Virginia, which had laid in ruins for some years

during the ravages of the civil war, especially if the owner- were

compelled to pay taxes upon them. There are. probably, thousands
of auch places for sale now in the South, and few or no purchasers.

198 UNDUE INFLUENCE. — FRAUD.

Could a woman, with a family of six children, possessed of that
ruined property alone, with nothing elsp to live upon, be regarded
or spoken of as otherwise than poor? The civil war was then
still pending. This is all the property the daughter had, or it is
claimed she had ; and the fact was well known to the deceased for
a year prior to, as well as at, the making of the will. Upon these
facts, no one, who does not wilfully deceive himself, or wish to de-
ceive others, can claim that Mrs. Gardiner was under any delusion
as to her daughter's property.

The other misunderstanding, as claimed, is, that in her will, she
releases to her son all claims she has against him for moneys ad-
vanced for the purchase of his farm, and all other claims and de-
mands against him when, in truth, she had made no such advances,
and had no claims against him. There are several answers to this
proposition.

J^h'st. The evidence is quite satisfactory that she had made ad-
vances to purchase the farm, and that her son was indebted to her.
The farm cost $13,250, and $5,000 had been paid on it : the
mother's place cost $9,500, and $4,500 had been paid thereon.
The son lived with his mother after he attained his majority, and
after his father's decease, from 1844 to 1849 — five years — sup-
ported entirely by her in handsome style — I infer from the locality
in the city. He had been admitted to the bar, but never practiced.
In 1849 he went to California, he says at his own expense, mined
and traded there, and returned in June, 1851. From that time
until February, 1864, he lived with, and was supported by, her.
He was married in 1860 — it must have been in the first of the
year, if not in 1859; and his wife and family all lived with his
mother. He kept a horse and a servant. Prior to the arrival of
his sister and children in the last of November, 1863, the family
consisted of the deceased and her grandson, her son David and his
family, although some of his sister's children were there prior to
their mother's arrival. Yet for the two years prior to 1864, with a
property, estimated by the son, at about $135,000, exclusive of
debts, the expenses of the family considerably exceeded the income,
under his management. He says that $3,500 must be raised to
pay back taxes and assessments, besides one $800 assessment then
unpaid. To this, add $1,200 a year (his charge for attending to
his mother's business), and $500 a year for extra supplies to his

EVIDENCE. 199

mother from his farm, as he claims, and the deficiency of his
mother's property, under his care, to meet current expenses, was
large. Who spent the money — the large income from her prop-
erty? Where did it go? The uncontradicted statement of the
mother was, that she " practiced the greatest possible economy, and
entered into no expenses to serve her own purposes, and made no
purchases for house or clothes that she could avoid." She even
kept but one horse, as I infer from his letter, speaking of the ex-
penses of keeping her " horse." The son and his family, his horse
and his servant during this time, constituted the large share of the
whole establishment. What services did he render that compared
in value to the amount of these heavy expenses, incurred largely
for him and his family? From 185 L to 1864 he attended to his
mother's business. What did he do ? He says he was engaged in
collecting the rents, attending to repairs, and erected buildings in
New York. Some buildings were torn down in the Bowery, and
were erected in 1856, and completed in 1857, under his superin-
tendence, as he says. Yet, architects were employed to draw the
plans and oversee the erection, for which his mother paid. All he
did was, he " was there occasionally " (to use his own language)
" to see that the work was properly done " — this " occasional " at-
tendance running through, perhaps, a year and a half. As to the
rents, etc., he literally did nothing, as appears in his own evidence.
It was all done by sub-agents, who were paid full prices (five per
cent.), as the son testified on cross-examination, "for collecting the
rents, paying the bill for repairs, attending to the lettings, ousting
tenants in case rents were not paid, attending to the insurances
generally, sometimes to the taxes, making up their accounts and
handing them to him." What, then, did the son do in reference
to .ill these services? He answers: " I handed them (the accounts)
to my mother." He did not even do that, in fact. The accounts

Of her rent-, for the year- I S.V.I to L863, inclusive, were not given
her until May 6, I Ml I, ;is appears by his letter of that date, though

repeatedly requested to do so. lie ami his mother, together, occu-
pied the place where -he died, of aboul eleven and a quarter acres,

and he Bays he directed the hands how t'» manage that. Bui it

would -en, i that he failed, from Is;,:; to L 864, to raise oats or
straw enough lor hi- horse and hie mother's horse, hut he was com
pelled to get the deficiency from his own farm. He kepi his

200 UNDUE INFLUENCE. — FRAUD.

mother's money and his own together, promiscuously, in the same
bank account. Ilis papers did not show, and he could not tell,
what particular money he had deposited, or for what he had drawn
it out. lie sold the East Hampton property for his mother, in
L852, for $5,000. Pie says he paid $3,000 of it on a mortgage,
and the other $2,000 was used in family expenses. This is all the
reduction his services ever made on any mortgage. When inquired
of, whether the rents and income were not sufficient to support the
family, he answers: "I don't know." Though he had the entire
charge as agent, he had no idea of the amount of the family ex-
penses, nor, from the nature of the case, did he know his own,
which, he claims, were small, and some of which, he claims were
paid from his own means. When removed from receiving the
rents of his mother, debts and taxes stand unpaid, and for months
his mother is left without means for household expenses, and tries,
in vain, to learn the condition of her property. Ultimately she
finds a deficiency that astonishes her. He charges $1,200 per annum
for services as agent, and $500 for annual supplies from his farm
from the first year he bought it, without being able to specify any-
thing that approached that amount. The checks from his check-
books throw no more light upon his account, so far as the case
shows, than would so many leaves from the coast survey. (It may
be here added, that the son, in answer to his mother's expressed
surprise at so great a deficiency in her money matters, wrote to her
on the 16th of May, that he had observed " rigid economy," and
" I kept an account of all expenses incurred, appertaining to the
family as well as my own personal matters." If this were true,
where is that account, and why was it not produced by him ?)

His answers seemed perfectly natural to the inquiry, what
moneys his mother advanced him to buy the Northfield farm :
" None, to my knowledge." So as to what claims she had against
him at the time of her death : " No claim, that I am aware of."
Of course he did not know, and his answers here were just as
proper as they were to the question, whether his mother's rents
and income were not sufficient to support the family without using
the $2,000 proceeds of sale of the East Hampton property, and he
answered there as here, " I don't know." Yet this $2,000, that he
" don't know " whether it was necessary to use for family expenses,
was received shortly before the purchase of the Northfield farm.

EVIDENCE. 201

He says he used the money he made in California to purchase that
farm. It was impossible for him to say that, as all his and his
mother's funds were deposited to one account ; and how much he
spent for the one or the other, he admits his utter inability to tell.
AVhether an advance was made with her money or with his, no one
could tell. He admits he never furnished a dollar for the support
of the family from 1844 to 1864. As between strangers, I think
no fair man would hesitate to say that the balance of the accounts
from this evidence was considerably against the son at his mother's
decease. It is said that his mother thought otherwise, as appeared
by her other will. If true, that was in 1858, and she had not then
supported her son, with his wife, and family, servant and horse,
for some four years. Besides, she did not then know, as appears
by her letters, the great deficiencies in her means, while her prop-
erty was under his charge.

There is another consideration. His mother, in giving instruc-
tion- tn her lawyer for drawing her will, distinctly told him that
she had made advances to her son toward buying the Xorthfield
farm ; she did not say how much ; could not state the amount ; but
she had made some. Does the son intend to say that his mother
was guilty of a falsehood at that time? There is no evading this
position by saving that his mother was then in extremis, or that
she had been deceived by the daughter. As shown by the testimony
of the most intelligent, impartial witnesses, who had known her
for years, her mind was shown to be, then, "as clear as it had
been at any time previous." The natural inquiry by the lawyer,
on his return with the will drawn, when informed that she was
worse, whether there was any doubt as to her ability and capacity
to make a will, was answered by the medical attendant, that "the:- s
\\a- none; that her mind was perfectly clear." After conversa-
tion with her as to the execution of the will, the lawyer gives the
same opinion, and there is no contradiction.

A.8 to the deception by the daughter, then- is no proof that the
daughter ever -aid a word on the subjeel to any one. In her in-
structions to the lawyer, QOthing was said as to other claims; but

the mother released the son in her will from all other claims.

a witness, the son is not presented in the most favorable
light. !!<• stands alone, and i- contradicted by every other as t<» a
material fact, lie destroyed evidence letters of his mother, as

202 UNDUE INFLUENCE. — FRAUD.

he first said, "not thinking it important to retain them"; and he
" accidentally " preserved some. After conversing with his lawyer,
some days after, he then says he destroyed them because he
" thought they were dictated by Mrs. Tyler, and he was incensed."
J I is indignation was discreet. It obviously destroyed only such
letters as he deemed unfavorable to him. It carefully preserved
the first, which, in his View, this reason for the destruction of the
others should have clearly destroyed.

[The foregoing portion of the dissenting opinion has been given
as an illustration of different views that may readily be taken by
different minds, of facts of the kind here adduced to show undue
influence. The opinion further proceeds at great length to dis-
cuss the evidence with a view of showing that it does not even
raise a reasonable suspicion of undue influence, and that the
authorities cited in the prevailing opinion have no bearing on the
case in hand. The opinion concludes as follows:]

To resume :

This will was executed according to law, when the mind of the
testatrix was sound and clear. It was carefully read over to, and
fully understood by, her— she expressed her gratification that it
was made.

It was also prepared by her own personal directions and instruc-
tions.

It was in substance in accordance with her wishes expressed in
New York, when her daughter was not present, several months
prior to its execution.

There is nothing, rising to the dignity of evidence, to show any
undue influence over the testatrix.

The judgment of the Supreme Court should, therefore, be
affirmed.

Hunt and Smith, JJ., were also for affirmance.

Judgment reversed, and decree of surrogate affirmed.

ATTORNEY AND DRAUGHTSMAN AS LEGATEE. 203

UNDUE INFLUENCE.— ATTORNEY AND DRAUGHTSMAN AS

LEGATEE.

Post et al. t. Mason et al.

New York Court of Appeals, 1883.
(91 N. Y. 539.)

Danforth, J. — John Post made his will on the 13th day of
September, 1874, and thereby, after giving to each child $40,000,
to his wife the use for life of $40,000, and the homestead, with
remainder to his children, $20,000 to the Ontario Orphan Asylum,
to a nephew $3,000, smaller sums to his brother, to a clergyman
and others, to his wife's mother for life a certain house and lot,
with remainder to his heirs, provided for the improvement of his
father's burial place and the erection of certain monuments, and
then appointed Alonzo Wynkoop and Bradley Wynkoop, both his
cousins, and Francis O. Mason, his executors and trustees for cer-
tain purposes, and gave to them in equal shares the remainder of
his estate, amounting, as it now appears, to $17,513.06 personal
property. He died on the 2Sth of September, 1874, leaving an
estate of the value of about $200,000, and on the 24th of October,
1874, probate of the will was duly granted by the surrogate of
Ontario County. This action was commenced in May, 1878, by
the plaintiffs, as the widow, heirs, and next of kin of the testator,
against the defendants, as executors and residuary legatees, praying
that the probate of the alleged will be vacated, that the instrument
be declared not to be the last will and testament of John Post, or,
tailing in these iv^pects, that the plaintiffs be declared to be the
owners of the residuary estate, and the defendants adjudged to hold
tin- same as trustees for them.

The defendants, by answer, put in issue the case made by the
Complaint, and questions framed thereon were, on submission to

the jury, answered by them in favor of the defendants. The
plaintiffs then applied to the Special Term for a new trial upon

exceptions takefl to the charge Of the trial judge, and his refusal

to charge a- requested by their counsel. This was denied. The

court, theiviiiM.ii, approved the verdict, and after findings of fact

and law, on all points adversely to the plaintiffs' case, ordered judg-
ment, dismissing the complaint.

We find no error in that decision. Firsts as to the chargej so

204 UNDUE INFLUENCE. — FRAUD.

far as material to the proposition argued by counsel, the complaint
alleged that Mason was a lawyer, and at the death of the testator,
and for one or more years before that time, his friend and con-
fidential attorney and counselor; that he wrote the will in question,
and taking advantage of that relation, " improperly and illegally,
if not fraudulently, induced" the testator to execute it in igno-
rance of its contents and effect ; that the instrument was never read
over to him, and he was never fully informed of its contents ; that
its probate was fraudulently procured at a time when the children
were under the age of twenty-one years, and the widow uninformed
of its contents. The answer of the defendants puts in issue every
allegation tending to exhibit fraud or contrivance either as con-
cerned the will or its probate, and in the most satisfactory manner
details the various consultations which led to the will, and the in-
telligent instructions given by the testator for its preparation.
Omitting immaterial questions, those framed for the jury were :
Fourth. Was John Post, at the time he made and executed the
will, of sound and disposing mind and memory, and competent to
make and execute it ? Fifth. Was it read over by or to him at
the time of, or before its execution, and did he understand it and
all its provisions ? Sixth. Was its execution procured by undue
influence? Seventh. Was the probate fraudulently obtained?
Eighth. Was the plaintiff, Adelaide, informed of the contents of
the will, and if so, when ? jyinth. Did either of the defendants
intentionally prevent either of the plaintiffs from becoming in-
formed of the contents of the will ? Upon the trial of these ques-
tions before the jury, it was conceded that the signature to the
will was that of the testator ; that the statutory formalities relating
to its execution were complied with, and that it was admitted to
probate at the time above stated. Witnesses were examined by
the plaintiffs to establish, on their part, the questions in issue.
They were answered by the defendants. In his charge to the jury
the learned judge dwelt upon each proposition involved, in a man-
ner satisfactory to the plaintiffs, except as I shall hereafter state.
Upon the question of undue influence he said, upon the relation
of client and counsel, "The law fastens a peculiar confidence," and
all that is necessary to make the influence of the latter undue is
that "they should use the confidence reposed in them, unfairly and
dishonestly to operate as a moral coercion upon the testator, and

ATTORNEY AND DRAUGHTSMAN AS LEGATEE. 205

thus induce him to do what he otherwise would not have done."
" The law," he said, " treats the exercising of this unfair influence
as a fraud, but the law does not presume that a fraud has been
1 committed in this or any other case. If a man clear in his mind,
and competent to understand things, makes his will, the mere fact
that he gives a legacy to the counsel who draws it does not invali-
date the will at all." " It has this effect, however, if there is any
evidence produced, tending to establish the fact that there was this
undue influence, the law looks with more jealousy upon it than in
other cases; it requires less evidence to And undue influence, when
the will gives a legacy 7 to the counsel, than if it was between per-
sons not holding the relation I have adverted to." He added, "It
is incumbent upon the plaintiffs in this case to prove some circum-
stances of suspicion, some evidence of an unfair exercise of the in-
fluence which Mr. Mason had over the testator, and if they have
furnished such evidence it is incumbent upon the defendants to
show you some evidence that no undue influence was exercised."
To this clause the plaintiffs' counsel excepted, and asked the court
to charge : "That this will having been written by Mr. Mason,
who is a legatee, and is shown to have been for years before the
will was made the legal adviser of Mr. Post, the same is presumed
to he fraudulent ; that the law itself, without any evidence at all,
presumes that it was obtained by fraud ; that the presumption was
against the will until it was overborne by satisfactory evidence."
The court declined, and the plaintiff excepted. These exceptions
are to be considered together, and they present the question
whether a will executed by one having full testamentary capacity
i-. a- matter of [aw, to be deemed fraudulent for the simple reason
that it contains n provision in favor of the draughtsman who was
and had been the counsel of the testator. This is apparent when
we read the chaige and the requesl together. The court said:
" If a man clear in his mind, and competent to understand things,
make.- his will, the mere fact that he gives a legacy to the counsel

who draws it doe- Qot invalidate the will," and on t! ther hand,

the appellant say- : "The law it-elf, without any evidence at all,

presumes it was obtained by fraud."

In Bindson v. Weatherill (5 De Gex, M. & Gk 301) there is a
case Bomewhai similar in its fact-, and a- viewed by the court pre-
senting the Bame question. The plaintiff succeeded he fore the vice-

20C UNDUE INFLUENCE. — FRAUD.

chancellor, on the ground that a solicitor of a testator, to whom the
testator had made gifts, was a trustee of those gifts for the testa-
tor's heir at law and next of kin, but upon appeal the court thought
otherwise, and deemed it unnecessary to say how the matter would
have stood if undue influence or any unfair dealing had been estab-
lished against him, for no such thing was done. Thesolicitor, they
say, " prepared his client's will, containing dispositions in his own
favor," adding, "there begins and ends the case as I view it. But
a case so beginning and so ending does not take away the right,
either legally or equitably, of a solicitor to be, for his own benefit,
a devisee or legatee." This touches the very point as presented to
the trial judge, and to the same effect are Coffin v. Coffin (23 JN". Y.
9) and Nexsen v. Nexsen (2 Keyes 229). The proposition of the
plaintiff excluded every circumstance but the occupation of the
legatee, Mason, and his relation to the testator and the will. If
acceded to it would have taken from the jury even the contents of
that instrument, forbidden them to inquire whether the testator
himself knew its provisions, or to consider the amount of the
legacy, its proportion to the whole body of the estate, its relation
to bequests to other parties, and those persons who were the natural
objects of the testators bounty, and other circumstances which had
been detailed in evidence. I do not think it necessary to inquire
whether such rule might apply to a controversy between an attor-
ney and his client, where the former was seeking to enforce an
obligation against the latter, or to an issue made upon the probate
of a will under which the attorney was the principal beneficiary.
There is certainly no rule of law which says an attorney shall not
buy of, or contract with his client ; there is only the doctrine that
if a transaction of that kind is challenged in proper time, a court
of equity will examine into it, and throw upon the attorney the
onus of proving that the bargain is, generally speaking, as good as
any that could have been obtained from any other purchaser, or
in other words, that the bargain was a fair one. Then as to testa-
mentary dispositions, as one does not, by becoming an attorney,
lose the capacity to contract, neither is he thereby rendered inca-
pable of taking as legatee, even under a will drawn by himself.
That circumstance, if probate was opposed, might in some cases
require something more than the usual formal proof of a due execu-
tion of the instrument, not because fraud was presumed, but because

ATTORNEY AND DRAUGHTSMAN AS LEGATEE. 207

it might be rendered more probable than in cases where the direc-
tions of the testator followed the lines of relationship. Coffin v.
Coffin, and Nexsen v. Nexsen {supra) go no further. In the first,
the fact that the draughtsman of the will was appointed executor
and legatee was said to be suspicious only in connection with other
circumstances indicative of fraud or undue influence, and in the
other, although from an estate of $15,000, the draughtsman of the
will, who was also the testator's agent, was appointed to receive all
but $3,000, and so became the principal beneficiary under it, the
court, citing Coffin v. Coffin {supra) held the same way. Both
cases came up on appeal from surrogates' decisions on proceedings
for probate, and require from the proponent in such a case testi-
mony of a clear and satisfactory character. In Coffin v. Coffin
the court sum up the matter in the language of Baron Parke, in
Barry v. Butlin (1 Curteis' Ecc. 037), and declare that '"all that
can be truly said is, that if a person, whether an attorney or not,
prepares a will with a legacy to himself, it is at most a suspicious
cireuni>tance, of more or less weight according to the facts of each
particular case, in some of no weight at all .... varying accord-
ing to circumstances, for instance the quantum of the legacy, the
proportion it bears to the property disposed of, and numerous
other contingencies."

The relation of attorney and draughtsman no doubt gave in the
case before us the opportunity for influence, and self-interest
might supply a motive to unduly exert it, but its exercise cannot
be presumed in aid of those who seek to overthrow a will already
established by the judgment of a competent tribunal, rendered in
proceedings to which the plaintiffs were themselves parties, nor
in the absence of evidence, warrant a presumption that the inten-
tion of the testator was improperly, much less fraudulently con-
trolled. Such ind ied seems to have been the theory on which the

action was brought, for the complaint not only alleges the confi-
dential relation between Ma-oii and the testator, but avers wcak-

aese and inability on his part, ignorance of the contents of the
will, and advantage taken of these circumstances by the attorney
to procur< a bequest for his own benefit. In view, therefore, of

the verdict of the jury and the findings of the court, we niivlit

dismiss the case. They have not only declared that the testator
was of sound and disposing mind, competent to make a will and

208 UNDUE INFLUENCE. — FUAUD.

under no restraint or undue influence, but that before execution
the will was read and its provisions understood by him, and also
that fraud was not practiced upon the testator nor upon the plain-
tiffs, to obtain probate, and have thus taken away every ground
of relief, even if the Supreme Court had power to grant it. A
somewhat more general question has, however, been argued for
the appellants. The learned counsel insists that " the burden of
proof is all there is of this controversy," and as the judge charged
the jury that upon all the questions presented to them, " the plain-
tiffs held the affirmative," and again, that " the burden of proof
is upon the plaintiffs to establish, by evidence, every allegation of
fraud, and in the absence of such evidence, the issue must be found
in favor of the defendants," there was error. Several propositions
were thus involved. The questions submitted to the jury relate
severally to the condition of mind of the testator, influence exerted
upon him, whether probate was obtained by fraud, whether Mrs.
Post learned the contents of the will within a given time, and
whether either, and if either, which of the defendants prevented
her from so doing. Upon some of these there could be no doubt
whatever as to the burden of proof. The plaintiff's moving to set
aside the will and its probate must do something more than call
the defendants into court, and so they thought at the trial. For
they opened the case to the jury, and upon every question took
the affirmative, giving such evidence as they could. Even assum-
ing, therefore, that the exceptions were pointed enough to call the
mind of the judge to any particular error, we think his instruc-
tions were right. But if otherwise, it would not follow that our
decision should go for the appellants. Application for new trials
of questions submitted by a court of equity are governed by dif-
ferent principles from those which prevail on similar applications
in a court of law. The object of the trial is attained when the
court is satisfied that justice has been done, and in such a case
a new trial will not be granted, even for misdirection to the
jury (Head v. Head, 1 Turner & Russell 138), unless the error was
vital or important. (Yermilyea v. Palmer, 52 1ST. Y. 471.) There
are many case>- to the same effect, but in this State the rule is now
statutory, and any error in the ruling or direction of the judge
upon the trial may, in the discretion of the court which reviews
it, be disregarded, if it " is of opinion that substantial justice does

ATTORNEY AND DRAUGHTSMAN AS LEGATEE. 209

not require that a new trial should be granted." (Code of Civil
Procedure, sec. 1003.) Upon this point neither the judge at Spe-
cial Term nor the judges of General Term have entertained a
doubt. Neither can we. Upon the question of fraud or undue
influence, there is no evidence. The plaintiff's case stands, if at
all, upon the single fact that a lawyer, the draughtsman of the
will, was one of three residuary legatees, and thus receives a ben-
efit. The proof is abundant that on the part of the testator there
was adequate capacity, testamentary intention, and a due execution
of the will, with full knowledge of its contents. This is enough.
The record furnishes no reason for defeating the plain wishes of
the testator. Aside from these considerations, however, it is ap-
parent that so far as any question here is concerned, the will is to
be regarded as one relating to personal property only, and we are
of opinion that its probate by the surrogate must be deemed con-
clusive. As to this the statute is explicit. (2 R. S., tit. 1, part 2,
chap. 6, art. 2, sec. 29, p. 61 ; Vanderpoel v. Van Valkenburgh,
6 X. Y. 190; In the Matter of Proving the Will of Kellum, 50
Id. 298.)

It is, however, urged as ground for the interference of a court
of equity, notwithstanding the probate of the will, that the exec-
utors may, as to the gift to them, be charged as trustees for the
next of kin, if that gift was obtained by fraud, actual or construct-
ive. Although the foundation for this contention is taken away
by tin' decision of the other points, something should be said as to
the proposition itself. Authority for it is not gathered from the
decisions of the court- of tin's State, nor are we informed how it
can stand in face 'of the statute (supra), which makes such pro-
bate conclusive. The whole, and each part of the will was before
the Bnrrogate, and allegations attributing any portion of it or any
of its provisions to fraudulent practices, were then competent.
They were made or might have been made, and in either event
were embraced in his decision. If established, the will, or so much
of it as was affected by the fraud, would have been rejected, and

the property now claimed would have found its way by force oi

the statute of distributions to those entitled to it. We are, how-
ever, referred by the appellants' counsel to cases from the English
curt-, iii aupporl of his position. We think they are insufficient.
M-.-t of them i Marriol v. Miarriot, I Sir. 666; Segrave \. Kirwan,

1 1

210 UNDUE INFLUENCE. — FRAUD.

1 Beatty 157 ; Bnlkley v. Wilford, 2 Clark & Fin. 102 ; Barnesly
v. Powel, 1 Ves. Sen. 287) are cited and commented on in Allen
v. McPherson (1 House of Lords Cases, 191), where after probate
of a will and codicils in the Ecclesiastical Court, a bill was filed by
one R. A. in Chancery, stating that by the will and codicils the
testator gave him large bequests which he revoked by the final
codicil, and alleged that the testator had executed the last codicil
when his faculties were impaired by age and disease, and under
undue influence of the residuary legatee, and false representations
respecting R. A.'s character, and moreover that he had not been
permitted in the Ecclesiastical Court to take any objections to that
codicil, except such as affected the validity of the whole instru-
ment, and prayed that the executor or residuary legatee might
be declared trustees or trustee to the amount of the revoked
bequest. Upon demurrer, the court, with these and other cases
before it, held that the Court of Chancery had no jurisdiction in
the matter, and this was upon the ground that the Ecclesiastical
Court had jurisdiction and might have refused probate, citing va-
rious instances where those courts had so applied the doctrine, and
as to cases in which a court of equity had declared a legatee or ex-
ecutor to be a trustee for other persons, show that they presented
questions of construction, or were cases in which the party had
been named a trustee, or had engaged to take as such, or in which
the Court of Probate could afford no adequate remedy, and were
not cases of fraud. This decision was made in 1847, and in a much
later case (Meluish v. Milton, L. R. 3 Ch. Div. 27, decided in
1876) it was followed by the Court of Chancery, where the heir-
at-law and next of kin sought to have the executrix, who was also
legatee, declared a trustee of the property for him. The relief sought
was denied upon the ground that as the Court of Chancery could
not set aside probate of a will of personal property, it could not
make a legatee trustee for another person, on the ground of fraud,
as that would be doing indirectly what the law will not allow to
be done directly, and the court held that the exclusive jurisdic-
tion of the Court of Probate in such cases is supported by con-
venience as well as by authority. So there are English cases where
as the law stood, if a testator did not dispose of his residuary es-
tate, the executors took a beneficial interest in it unless a contrary
intention was expressed, and a court of equity was astute to find a

EVIDENCE OF INSANITY AND UNDUE INFLUENCE. 211

trust for the heir or next of kin. Segrave v. Kirwan (1 Beatty
157), so largely relied on by the appellants, was one of those cases.
It was not there the intention of the testator to give the draughts-
man anything more than the office of executor, but no residuary
legatee was named, and he insisted that he was entitled to the res-
idue of the personal estate, and so the law was. But it appeared
that at the time he drew the will, he was not — nor was the testa-
tor — aware that under the dispositions and omissions of the will,
he would be entitled to the residue ; and the court charged the
attorney as trustee for the next of kin, upon the ground that he
should be deemed to have known the law, and having failed to in-
struct the testator in regard to it, should reap no advantage from
his actual ignorance. But even in England the necessity for this
interference was removed by statute (11 Geo. 4, and 1 Will. 4,
chap. 10; Statutes of Great Britain and Ireland, vol. 12, part 1,
p. 114). and we are cited to no case in this State where a court of
equity has exercised such jurisdiction as the plaintiffs now invoke.

Upon all grounds, therefore, we think the judgment of the Su-
preme Court should be affirmed, with costs.

All concur.

Judgment affirmed,
evidence on issues of insanity, undue influence, and fraud.

In addition to the statements already made in the foregoing
pages on the subject of evidence on these topics, it will be conven-
ient here to add a few further important principles.

On all the topics above named, the condition of mind of the tes-
tator may be, and on at least one of them always is, a fact of im-
portance. So far as concerns the issue of mental incompetency,
the fact of testator's mental condition is the very fact in issue. On
the issue of undue influence the testator's mental condition is a
subsidiary fact bearing on the question of his susceptibility to
pre—iire or crowding, and goes to makeup the atmo&phen sur-
rounding the transaction, and assists in determining whether the

Other facts shown did succeed in overpowering his will without
convincing his judgment. On the issue of fraud, it may some-
times have a similar bearing. On all these issues, consequently,
any facts which, whether separately or in the aggregate, either
show or logically tend to show his mental condition at the

212 UNDUE INFLUENCE. — FRAUD.

time of execution, may, if otherwise competent in the particular
case, be offered in evidence, either to support or to discredit the
will. Among these facts, as we have already seen (Waterman v.
Whitney, and other cases, given ante), is the fact that testator made
certain declarations, either before, 1 at, or after execution, tending
to indicate the mental condition, at the time of execution, of the per-
son making them. They are not admissible as evidence of the facts
which they purport to allege, but merely as evidence of the state of
testator's mind. If, however, they were made at the time of execu-
tion, they are admissible, if otherwise competent, as part of the
res gestae, as to show the intent with which the act of execution
was performed. 2

' As to other evidence, its admissibility varies somewhat with the
issue involved. Where the issue is mental incompetency, any di-
rect evidence of facts relating to testator's mental condition, at the
time of execution, is admissible. And although it must relate to,
or logically bear upon, that particular time, it may, like evidence
of testator's declarations, deal with facts occurring before, or at, or
after execution, and even long before or after, so long as it has any
reasonable tendency to throw light upon testator's mental condi-
tion when he executed the will. 3 Thus, it is admissible to show
the letters written by testator, or the fact that he kept his own
books of account, drew checks, made deposits, engaged in business
transactions, managed his own business, made purchases, held
responsible positions calling for the exercise of care and judgment,
or, on the other hand, was under guardianship, or was not trusted
with money, and so on. Many illustrations of the sort of evi-
dence that may be adduced on this issue, both to prove and to
disprove mental competency at the date of execution, will be
found in the foregoing cases.

On the issue of undue influence, all the foregoing facts may be
shown for the purpose of proving testator's mental condition as a
subsidiary element in the general charge of undue influence.
From the nature of the issue, evidence is also admissible to show
his relations with the beneficiaries under the will, 4 and with those

1 Hammond v. Dike, 42 Minn. 273 ; Conway v. Vizzard (Ind.), 23 N. E. 771.

2 Chaney v. Home etc. Society, 28 111. App. 621.

3 Steadman v. Steadman (Penn.), 14 Atl. Rep. 406.

4 Carpenter v. Hatch, 64 N. H. 573.

EVIDENCE OF INSANITY AND UNDUE INFLUENCE. 273

who might naturally be expected to appear as beneficiaries, 1 his
affections and hatreds, his likes and dislikes, as bearing on the
question of the reasonable likelihood of a person with the feelings
and opinions thus shown, making such a will as that propounded.
So also the acts and demeanor, in so far as they bear on the issue,
of the persons charged with exercising the undue influence, may
be shown, and their relations to testator, their proper claims on
him, the methods adopted, if any, to influence or crowd or coerce
him, and the opportunities they had for doing so. Under this
head, former wills executed by testator, and the continuance or
change of the conditions which led him to make the provisions
contained in them, may be offered. 3 In short, direct evidence of
all facts may be given, which has a legitimate and sensible bearing
on these two questions, — namely, whether efforts were made to
override testator's free will, and whether they succeeded. Of
these facts numerous illustrations may also be found in the forego-
ing cases.

On the issue of fraud, such facts may, or may not have a legiti-
mate bearing, according to the nature of the particular charge, but
if they do have, they are admissible, together with other facts go-
ing to show or make out the charge of fraud on the general prin-
ciples of evidence applicable to that issue under any circumstances
and in any kind of suit.

1 Btaser v. IIo.<ran, 120 Ind. 207.

1 Colhoun v. Jones, 2 Kedf. 34 ; Tyler v. Gardiner, given ante.

CHAPTER III.

EXECUTION.

I. — Signing by the testator.

II. — Making or acknowledgment of signature before wit-
nesses.
III. — Declaration of the will to witnesses.
IV". — Request to witnesses to sign.
'V. — Attestation and signature by witnesses.

Although the statutes of England and our States vary a good
deal among themselves in the details of their requirements for due
execution, there are certain features, some of which are common
to most of them, which may here be stated. Special care, how-
ever, is needed to notice the bearing upon any given decision of
the exact requirements and phraseology of the statute whose
construction is involved. And no attempt will of course here be
made to discuss the special and peculiar provisions of the varying
statutes of the several States.

It may in general be said that due execution usually requires
some or all of the following acts, according to the terms of the
controlling statute :

1. Signing by the testator.

2. Making or acknowledgment of signature before witnesses.

3. Declaration of the will to witnesses.

4. Request to witnesses to sign.

5. Attestation and signature by witnesses. 1

These requirements we will examine in order.

1 The order in which the several steps are taken is generally immaterial.
Jackson v. Jackson, 39 N. Y. 153 (159). Thus in Matter of Phillips, 98 N. Y.
267, where the testator declared the instrument to be his last will and testa-
ment, after the witness had begun, and before he had finished, writing his
name, it was held a sufficient declaration. So where testatrix declared the in-
strument to be her will, while signing her name, and made her request to the
(214)

SIGNING BY THE TESTATOR. 215

I. SIGNING BY THE TESTATOR.

Tho various methods of signing wills may be classified in two
groups.

In one group of cases the testator, by h is own physical exertion,
fixes upon the instrument some visible impression intending it to
constitute his signature. It is to be noticed that this statement
does not necessarily coufine him to the use of any particular ma-
terials, or of any particular kind of marks. But whatever the
signature may consist in, it must have been intended by testator,
at the time, to be, or stand for, his signature to the instrument.
And the use of materials peculiarly liable to be destroyed or de-
faced may raise a presumption, and even a conclusive presumption,
that no formal testamentary act could have been intended.

Illustrations,
(a). A. signed his will by merely marking a cross. 1
(I/). A testator wrote at the end of the will his initials. 2
(<?). Another testator impressed upon wax, affixed to the instru-
ment, his initials engraved on a seal. 3

('/). C. signed her will by her first name — Catherine — and noth-
ing more. 4

In all the foregi ring cases the " signing " was held to be sufficient.

witnesses before she signed herself, though they in fact signed after her.
Williams' Will, 15 N". Y. Supp. 8*28. Substantial compliance is all that is re-
quired. This principle has been carried so far that in New Jersey it has been
8did, in Mundy v. Mimdy, 15 X. J. Eq. 290 (294), that the fact that a witi
signed before instead of after testator would he immaterial, citing as authority
Vaughan v. Burford, 3 Bradf. 78: "The; particular order of the several
requisites to the valid execution of a testament is not at all material." Hut the
New York case thus cited is erroneous. The witnesses must sign after the
testator has Bigned. in New York. Jackson v. Jackson, 39 N. Y. 153. For
the fad that testator has signed is one of the thingswhich the witness is to
attest. Pawtuckel v. Ballou, 15 R. I. 58; Simmons v. Leonard (Term.), 18 S.
W. Rep. 280.

Nickeraon v. Buck, 12 Cush, 382; Robinson v. Brewster (111.), :i<> N. E. Hep.
688

Re Savory, 1." ( Jurist 1042.
'Goods of Emerson, L R 9 [r. 443; Bee also Jenkins v. Gaisford, 8 Sw. &

Tr 98. A mere Sealing, not intended for a signature, will not, however, con-
st it me a signing. Goods of Emerson, L R. 9 Ir. 448.
• Knox's Estate, 181 Penn. St. 220.

216 EXECUTION.

(e). Patrick J. O'Neill, the testator, began to sign, and wrote as
far as " Pat " — and then desisted, not as having completed all he
set out to write, but because too weak to go on. It was held that
this was not sufficient. What was written was not intended as a
complete signature. 1

{f). Testator " made his mark," and a witness, Miller, wrote
around it the testator's name, thus " Moses W. S. Jackson, his
mark." It was of no consequence whether this writing preceded
or followed the making of the mark. The mark itself is the sign-
ing called for by the statute. The name written around it is
merely a convenient memorandum to designate the mark. 2

(g). David Long, the testator, signed his will with a mark, about
which the. draftsman wrote, by mistake, Jacob Long. The mark
being itself the signature, the due execution was not vitiated be-
cause some one else wrote a wrong name against it. 3

(h). Testator's hand, when he signed his will, was guided by that
of some one else. This was a signing by the testator himself. 4

The foregoing instances illustrate cases where the signature was
made by testator himself. But there is a second class of cases
where this is not done. Our statutes of wills, like the English
statute, usually permit the signature to be made by another person
at testator's request and in his presence. 6 But where the statute
merely provides that the will must be signed by testator, omitting
the alternative provision, here it has been held in New Jersey that
signature by another for him will not suffice. 8

1 Knapp v. Reilly, 3 Dem. (N. Y.) 427.

2 Jackson v. Jackson, 39 N. Y. 153.

3 Long; v. Zook, 13 Penn. St. 400. To the same point, Goods of Clarke, 1
Sw. & Tr. 22.

4 Stevens v. Vancleve, 4 Wash. C. C. 262.

5 In MiDn. the statute requiring that a will may be signed by another for
testator, "by his express direction," excludes a mere passive assent and calls
for a clear active direction either by words, gestures, motions, looks or signs,
of some sort. Waite v. Frisbie, 45 Minn. 361.

6 Re McElwaine, 3 C. E. Green 499; Fritz v. Turner, 46 N. J. Eq. 515.

testator's signature.— general discussion. 217

TESTATOR'S SIGNATURE.— GENERAL DISCUSSION.
Knox's Estate.

Pennsylvania Supreme Court, 1890.
(131 Perm. St. 320.)

Appeal to the Supreme Court from the decree of the Orphans'
Court of Alleghany County, affirming the decision of the register
of wills, admitting to probate as a will, an instrument, the signa-
ture to which was merely the first name, " Harriet." One of the
grounds of the appeal was that this did not constitute a " signa-
ture " under the statute.

Opinion, Mr. Justice Mitchell. [After considering other ques-
tions raised on the appeal.]

It being undisputed that the paper is in the handwriting of the
decedent, and being testamentary in its character, the only ques-
tion left ' upon its validity as a will is the sufficiency of its execu-
tion by the signature " Harriet."

The paper is proved to have been written after the passage of
the act of June 3, 1887, P. L. 332, and the fact that the decedent
was a married woman is therefore unimportant. That act re-
pealed the requirement that a married woman's will should be exe-
cuted in the presence of two witnesses, neither of whom should be
her husband, and put her, in respect to signature by herself, upon
the same footing as men and unmarried women. No greater
effect can be attributed to the statute. It certainly was not in-
truded to authorize a married woman to execute a will any more
loosely than other persons. We are therefore remitted to the
general question whether a signature by the first name only may
be a valid signing of a will under the act of 1833 and its supple-
ments. •

The condition of the law before the passage of the wills act of
1833 18 well known. By the English statute of frauds, all wills as
to land wen- required to be ill writing, signed by the testator.
Under this act it was held that the signature of the testator in any

part of the instrumenl was sufficient : 1 Redf . on Wills, c. <">, see.
18, pi. '.♦, an. I cases there cited. The same construction was given

1 The law of Pennsylvania concerning execution of holographic wills is, as
in some other States, peculiar, and unlike the usual laws.

218 EXECUTION.

to the law in Pennsylvania, and under the act of 1705, 1 Sm. L.
33, which required wills of land to be in writing and proved by
two or more credible witnesses, etc., it was even held that a writ-
ing in the hand of another, not signed by the testator at all, might
be a good will : Rohrer v. Stehman, 1 W. 463. In this state of
the law the act of 1833 was passed. It was founded on the Eng-
lish statute of frauds, 29 Car. II., the phraseology of which it
follows closely, but with the important addition that the will shall
be signed " at the end thereof." In making this change, it is
undoubtedly true, as suggested by Strong, J., in Vernon v. Kirk,
30 Pa. 222, that the legislature '' looked less to the mode of the
signature than to its placed Accordingly, the statute makes no
definition of a signature, or of the word, signed. " It was only
by judicial construction that .... (the statute) was made to
require .... the testator's signature by his name ": Strong, J.,
Vernon v. Kirk ; and that judicial construction which held that
a mark was not a valid signature : Asay v. Hoover, 5 Pa. 21 ;
Grabill v. Barr, 5 Pa. 441, decided in 1846, was changed, it may
be noted, by the legislature as soon as their attention was directed
to it : Act January 27, 1848, P. L. 16.

The purposes of the act of 1833 were accuracy in the transmis-
sion of the testator's wishes, the authentication of the instrument
transmitting them, the identification of the testator, and certainty
as to his completed testamentary purpose. The first was attained
by requiring writing instead of mere» memory of witnesses, the
second and third by the signature of testator, and the last by
placing the signature at the end of the instrument. The first two
requirements were derived from the English statute ; the third
was new (since followed by the act of 1 Vict., c. 26), and was the
result of experience of the dangers of having mere memorandum
or incomplete directions taken for the expression of final inten-
tion : Baker's App., 107 Pa. 381 ; Vernon v. Kirk, 30 Pa. 223.
These being the purposes of the act, and the legislature not having
concerned itself with what should be deemed a signing, we must
look dehors the statute for a definition. As already said, the act
is founded on the statute of frauds, 29 Car. II. Under that act
it has been held that the signing may be by a mark, or by initials
only, or by a fictitious or assumed name, or by a name different
from that by which the testator is designated in the body of the

TESTATOR'S SIGNATURE. — GENERAL DISCUSSION. 219

will : 1 Jarman on Wills, 78 ; 1 Redf. on "Wills, c. 6, sec. 18, and
cases there cited. In this State, as already seen, it was held, on a
narrow construction of the act of 1833, that a mark was not a
signing ; but on the other points, so far as they have arisen, our
decisions have been in harmony with those of the English courts.
Thus, in Long v. Zook, 13 Pa. 400, the will of David Long was
held to be validly executed by his mark, although the mark was
put to the name of Jacob Long. In Vernon v. Kirk, 30 Pa. 218,
" Ezekiel Norman, for Rachel Doherty, at her request," was held
to be a valid signing under the act. And in Main v. Ryder, 8-1
Pa. 217, it may be noted that a mark was held to be a good signa-
ture (subsequent to the act of 1848), though put to a name which
was not the testator's real or at least his original name, though it
was one by which he had been known for some years in his own
neighborhood. No question was raised against the will on this
point.

The precise case of a signature by the first name only, does not
appear to have arisen either in England or in the United States ;
but the principles on which the decisions already referred to were
based, especially those in regard to signing by initials only, are
equally applicable to the present case, and additional force is given
to them by the decisions as to what constitutes a binding signature
t< » a contract under the same or analogous statutes. Browne on the
Statutes of Frauds, see. 3(12, states the rule thus: " In cases where
the initials only of the party are signed, it is quite clear that, with
the aid of parol evidence which is admitted to apply to them, the
signature ie to be held valid." And see Palmer v. Stephens, 1
Den. 478; Sanborn v. Flagler, 9 Allen 474; Weston v. Myers,
33 III. 432; Salmon Falls Co. v. Goddard, 14 How. !!•'.: Chi-
chester v. Cobb, 14 Law T., N. S. 433. Though, therefore, we
find do precise precedent, yel the analogies are all favorable, rather
than otherwise, to the sufficiency of a signing by first name only, if
it meet- the other requirements of the act. These are matters
depending on circumstances which will be considered further on.
hooking beyond the decisions to the general use of language, what
i- understood by signing, and signature % Webster defines to sign

■■ to affix r signature to ; to ratify by hand or seal ; to subscribe
in one's own handwriting"; and signature a " a sign, stamp, or
mark Impressed; .... especially the name of any person writ-

220 EXECUTION.

ten with his own hand, employed to signify that the writing which
precedes accords with his wishes or intentions; a sign manual."
All the definitions include a mark, and no dictionary limits a
signature to a written name. There can be no doubt that histor-
ically, and down to very modern times, the ordinary signature was
the mark of a cross ; and there is perhaps as little question that
in the general diffusion of education at the present day, the ordi-
nary use of the word implies the written name. But this implica-
tion is not even yet necessary and universal. The man who can-
not write is now happily an exception in our commonwealth, but
he has not yet entirely disappeared, and in popular language he is
still said to " sign," though he makes only his mark. Thus, in
Asay v. Hoover, 5 Pa. 26, the witness says : " The name was
written after the will was read to her, and after she had signed it.
.... She was reclining in bed when she signed it," although the
signature the witness was testifying to was only a mark. But,
even in the now usual acceptation of a Written name, signature
still does not imply the whole name. Custom controls the rule of
names, and so it does the rule of signatures. The title by which
a man calls himself and is known in the community is his name,
as in Main v. Kyder, supra, whether it be the one he inherited or
had originally given him or not. So the form which a man cusr
tomarily uses to identify and bind himself in writing is his signa-
ture, whatever shape he may choose to give it. There is no
requirement that it shall be legible, though legibility is one of the
prime objects of writing. It is sufficient if it be such as he usually
signs, and the signatures of neither Rufus Choate nor General
Spinner could be rejected, though no man, unaided, could discover
what the ragged marks made by either of those two eminent per-
sonages were intended to represent. Nor is there any fixed require-
ment how much of the full name shall be written. Custom varies
with time and place, and habit with the whim of the individual.
^Sovereigns write only their first names, and the sovereign of Spain,
more royally still, signs his decrees only, " I, the King," (Yo el
Rey). English peers now sign their titles only, though they be
geographical names, like Devon or Stafford, as broad as a county.
The great Bacon wrote his name Fr. Verulam, and the ordinary
signature of the poet-philosopher of fishermen was Iz : Wa : . In
the fifty-six signatures to the most solemn instrument of modern

testator's signature.— general discussion. 221

times, the Declaration of Independence, we find every variety
from Th. Jefferson to the unmistakably identified Charles Carroll
of Carrollton. In the present day, it is not uncommon for busi-
ness men to have a signature for checks and banking purposes
somewhat different from that used in their ordinary busiuess, and,
in familiar correspondence, signature by initials, or nickname, or
diminutive, is probably the general practice.

What, therefore, shall constitute a sufficient signature must
depend largely on the custom of the time and place, the habit of
the individual, and the circumstances of each particular case. As
already seen, the English and some American cases hold that a
signature by initials only, or otherwise informal and short of the
full name, may be a valid execution of a will or a contract, if the
intent to execute is apparent. To this requirement our statute
adds that the signature must be at the end, as evidence that the
intent is present, actual and completed. On this point of the com-
pleted act, the use of the ordinary form of signature is persuasive
evidence, and the absence of it may be of weight in the other
scale. As well suggested by the learned judge below, if a will
drawn with formality, or in terms that indicate the aid of counsel,
or the intent to comply with all the forms of law, be signed with
initials or first name only, doubt would certainly be raised as to
the completed purpose of the testator to execute it, and if then it
appeared that his habit was to sign his name in full, the doubt
might become certainty ; while, on the other hand, if it were shown
that he usually, or even frequently, signed business or other
important papers in the same way, the doubt might be dissipated.
Aja in all cases where the intent is the test, there can be no hard
and fast Legal rule as to form. The statute requires that the signa-
ture Bhall be at the end, and that requirement must be met without
regard to intention, but what shall constitute a signature must be
determined in each case by the circumstances.

Tested by these views, the will in the present case appears to
have Keen well executed. Of the 1 1,1 n< I writ i og am I of the identity
of the testatrix there is no question, and her completed intent to
execute the paper, as the expression of her testamentary wishes, is
attested at the end of it by a signal lire admitted to be made by her,

and shown to be in the form whieli slie habitually used. The

writing has not the usual formalities of a will, but is in form a

2±2 EXECUTION.

letter, addressed to no one by name, but clearly intended for her
mother, or such of her family as should assume control of her prop-
erty after her death ; and the form of the instrument might well
account for the signature she was accustomed to use, were it not
still more clearly explained by the unfortunate differences with her
husband, and her repugnance to using his name, as shown by her
avoidance of it in her correspondence, and her direction not to put
it on her tombstone. On the evidence, it is clear that the testatrix
intended this as a complete execution of the instrument, and we
find nothing in the law to defeat its validity for that purpose.
Judgment affirmed.

SIGNATURE BY ENGRAVED STAMP.

Jenkins v. Gaisford and Thring.
In the Goods of John Jenkins (deceased).

English Court of Probate, 1863.
(3 Sw. & Tr. 93.)

Probate of will and two codicils.

Henry Atkins deposed that he was testator's amanuensis, and
often exployed a stamp bearing a fac-simile of testator's signature,
to sign testator's letters, as testator had had difficulty in writing ;
that at testator's request he had thus stamped the name on each of
the two codicils and thereupon testator laid his hand on the paper
and acknowledged the signature.

Probate refused on motion. After special declaration, and cita-
tion to next of kin, the question of the sufficiency of the signature
was argued ex parte by Dr. Spinks.

Sir C. Cresswell. — I am of opinion that the codicils were duly
executed so as to comply with the 1 Vict., c. 26, s. 9. It has been
decided that a testator sufficiently signs by making his mark, and
I think it was rightly contended that the word " signed " in that
section must have the same meaning whether the signature is made
by the testator himself, or by some other person in his presence or
by his direction, and therefore a mark made by some other person
under such circumstances must suffice. Now, whether the mark
is made by a pen or by some other instrument cannot make any
difference, neither can it in reason make a difference that a fac-
simile of the whole name was impressed on the will instead of a

SIGNED BY MARK.— WRONG NAME. 223

mere mark or X. The mark made by the instrument or stamp
used was intended to stand for and represent the signature of the
testator. In the case where it was held that sealing was not signing,
the seals were not affixed by way of a signature.

EXECUTION. -SIGNED BY MARK.— WRONG NAME.

In the Goods of Susanna Clarke (deceased), on Motion.

English Court of Probate, 1858.
(1 Sw. & Tr. 22.)

The testatrix executed a will in 1844, by mark. Against her
mark the name Susanna Barrell (her maiden name) was written
instead of Susanna Clarke, her real name, and the one by which
she was described in the commencement of the will and in the
testimonium clause.

Shortly before her death, she delivered the will in a sealed en-
velope to F., one of the executors named therein, in whose cus-
tody it remained until after her death, telling him " that she wanted
him to manage for her." F. deposed that both the attesting wit-
nesses were dead, that the will was in the handwriting of Sidney,
one of them ; and he believed the word " Barrell " to have been
a clerical error of Sidney's.

Dr. Deane, Q. C. : The execution satisfies the Wills Act. (In
the goods of Bryce, 2 Curt. 325, and In the goods of Clark, lb.
329.)

Sib ( '. ( 'resswell. — There is enough to show that the will is really
that of the person whose it professes to be. Her mark, at the foot
or end of it. is a sufficient execution, and that which some one else
wrote against her mark cannot vitiate it.

I III. POSn ION OF TIIK SICNA I IUK.

In Bome statutes the place of the signature is not prescribed. 1
According to others, it i- prescribed, as. tor instance, in Ohio the
will must be "signed at the end*"; in New York, " subscribed at,
the end"; in England, "signed at the fool or end," etc. Under

] See \ih v. Armstrong, given post.

• Glancy v. Glancy, IT <». St. 184.

224 EXECUTION.

both forms there are numerous cases arising out of the position of
the signature. The following will show the principles of the two
systems.

(a). Position not specified by Statute.

The testator wrote out his own will, beginning "In the Name
of God, Amen, 7, John Stanley, make this my last will and
testament" He did not subscribe his name, but affixed his seal,
and had the will subscribed by three witnesses in his presence.
" 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 suffi-
cient 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." x

TESTATOR'S SIGNATURE. -POSITION. —WRITTEN BY ANOTHER.
Armstrongs Ex'r vs. Armstrong's Heirs.

Alabama Supreme Court, 1857.
(29 Ala. 538.)

Appeal from the Court of Probate of Lawrence, which, on appli-
cation for probate of the will of James Armstrong, deceased, sus-
tained a demurrer to proponent's evidence.

The will began in these words :

" In the name of God, amen. I, James Armstrong," etc. The
name of the testator did not appear elsewhere. The entire instru-
ment was in the handwriting of testator's physician, Dr. Massie,
and was dictated by testator, and approved and adopted by him
when written. Probate was contested on the ground that the will
had not been duly signed.

1 Lemayne v. Stanley, 3 Lev. 1 ; under the present English statute of wills
the testator's signature must be signed at the foot or end of the will. (For
a further English statute on this subject see Appendix, post.) The statute
under which this case arose, however, the Statute of Frauds, 29 Charles II., is
that on which most of our statutes of wills are based, and it has been often
cited and on this point approved in cases arising under them in States where
no statutory change has been made. See Armstrong v. Armstrong, post.

testator's signature.— written by another. 225

Rice, C. J-— By our statute law, every persou over the age of
eighteen years, of sound mind, may by his last will dispose of all
of his personal property ; and every person of the age of twenty-
one years, of sound mind, may by his last will devise his lands, 01
any descendible interest lie may have therein. Code, sees. 1589,

1595.

Except in certain cases, of which the present is not one, the
formalities requisite to a will, under section 1611 of the Code, are,
1st. that it be in writing ; 2d, that it be signed by the testator, "or
hy sorru person in his presence, and hy his direction" ; 3d, that it
be attested by at least two witnesses, who must subscribe their
names thereto in the presence of the testator.

In the case at bar, it appears clearly from the evidence, that the
first and third of these requisites have been complied with ; and
the questit »n is, whether the second of them has been complied with.

Section Kill of the Code, so far as it relates to the second
requisite, is a substantial transcript of that part of the 5th section of
29th Car. II., ch. 3, which related to the signing of the will ; and
therefore, the construction which has been put upon that part of
the British statute, and settled as its true construction, by the
British decisions before the adoption of our statute, ought to be
regarded as the construction which our legislature intended to be
put upon that part of our statute now under consideration. We
shall adopt and follow that construction.

According to those decisions, if the testator with his own pen
writes his own name in the beginning of the will, thus, "I, James
Armstrong," with the design of giving it authority, and acknowl-
edge it to 1>" his writing when ho calls the subscribing witnesses to

e8 i it ; and if. at the time of acknowledgment, he does not intend
to subscribe it. the signing is sufficient, under the statute, without.

any Subscription oi his name at the bottom. Lemayne v. Stanley,

:: Lev. 1 ; Morison v. Tumour, L8 Vesey 17<',; Ellis v. Smith, 1 [b.
11 ; Grayson v. Atkinson, -1 [b. 454 ; Stonehouse v. Evelyn, :*> P.
Wms. Rep. 254 ; Miles' Will, 1 Dana's Rep. I ; Jarmanon Wills, T<>.
I, | s nol essential that the testator should write his own name.
The British Btatute, ae well as our own, allows a will to be signed

for him by another; and hi- name, when written hy another, for

him, in hie presence, ami by hi- direction, will have the same effect
as if it had been written by himself, Although his name is not

i:»

226 EXECUTION.

written by himself, nor subscribed to the will ; yet, if it be written
hi the beginning of the will by another, in his presence, and under
his direction ; and if it be acknowledged by him to the attesting
witnesses, at the time he calls on them to attest and subscribe it, it
will be as effectual as if with his own pen he had written it. See
the authorities cited supra; and Martin v. Wotton, 1 Lee 130;
In the goods of Clark, 2 Curteis 329 ; Addy v. Grix, 8 Yesey 505 ;
10 Bacon's Abr. (edition of 1846), 490-503.

As the party who opposed the probate of the will in this case,
interposed a demurrer to the evidence, and there was a joinder
therein, it was the duty of the court to have decided against him,
if the jury from that evidence could legally have found against
him. We do not say, that from the evidence the jury would have
been bound to find against him ; but we think they might legally
have done so. Although it may not be a necessary inference from
the evidence, that the name of the testator was written by Dr.
Massie in his presence, and by his direction ; yet it is an inference
which the jury might legally have drawn. Spencer, adm'r of
Donaldson, v. Rogers, adm'r of Waters, at this term ; Shaw v.
White, 28 Ala. 637. '

The court below erred in sustaining the demurrer to the evi-
dence ; its judgment is therefore reversed, and the cause remanded.

[Adams v. Field, 21 Vt. 256. Sometimes the statute, without
specifying the position of the signature, calls for a signing " in
such a manner as to make it manifest that the name is intended
as testator's signature." Warwick v. Warwick, 86 Va. 596.]

TESTATOR'S SIGNATURE.— WHERE POSITION NOT SPECIFIED. 1
.flatter of Will of Booth.

New York Court of Appeals, Second Division, 1891.
(127 N. Y. 109.)

This case involved the validity of a New Jersey will. Testa-
tor's name appeared only at the beginning of the will.

Follett, Ch. J. — At common law, if a person wrote his name in

1 It will be noticed that although this is a New York case it does not deal
with a New York will or with the New York statute.

TESTATOR'S SIGNATURE. — POSITIOX NOT SPECIFIED. 227

the body of a will or contract with intent to execute it in that
manner, the signature so written was as valid as though subscribed
at the end of the instrument. (Merritt v. Clason, 12 John. 102;
s. c. sub nom. Clason v. Bailey, 14 Id. 484 ; People v. Murray, 5
Hill 468; Caton v. Caton, 2 H. L. 127; 2 Kent's Com. 511; 1
Dart's Y. P. [0th ed.] 270 ; 1 Jar. Wills [Big.'s ed.] 79.)

A\ T e shall assume, without deciding, that under the laws of New
Jersey a will may be legally executed if the name of the testator
is written by him in the body of the instrument with intent to so
execute it. The statute of that State which prescribes the mode
in which wills shall be executed, provides : " All wills and testa-
ments .... shall be in writing and shall be signed by the testa-
tor, which signature shall be made by the testator, or the making
thereof acknowledged by him, and such writing declared to be his
last will in the presence of two witnesses present at the same time,
who shall subscribe their names thereto as witnesses in the pres-
ence of the testator." Under this statute it was held In re McEl-
waine (18 N. J. Eq. 499) that "four things are required: First,
that the will shall be in writing. Secondly, that it shall be signed
by the testator. Thirdly, that such signature shall be made by the
testator, or the making thereof acknowledged by him in the pres-
ence of two witnesses. Fourthly, that it shall be declared to be
his last will in the presence of these witnesses. Each and every
one of these requisites must exist. They are not in the alterna-
tive. The third requisite contains an alternative, but one of these
alternatives must exist. The second requisite, the signing by the
testator, must exist. The second alternative of the third, to wit,
that he acknowledged 'making of the signature/ will not supply
the want of the second. Where there is no proof as to the mak-
ing of the signature, such acknowledgment is sufficient evidence
that he made it. and would prove compliance with the requisite o\
signing by him. Bui when it is clear that the testator did no!

sign flu- will, this acknowledgment is not sufficient. The word- of

the act are clear, ami the object is equally clear, ami requires this
construction to the words." This language was used in respeel to
a will to which the name of the testatrix was subscribed by one of
the subscribing witnesses al her request, in hoi' presence, and in the
presence of both subscribing witnesses. A.fter this was done the
testatrix -aid "thai was her o: • ami seal," hut did not acknowl-

228 EXECUTION.

edge it to be her signature, nor did she then declare that the in-
strument was her will ; and it was held not to have been executed
m accordance with the statute.

Wherever the name of a testator appears, whether in the body or
at the end of a will, it must have been written with intent to exe-
cute it, otherwise it is without force. When a testator, or the
maker of a contract, subscribes it at the end and in the manner in
which legal instruments are usually authenticated, a presumption
arises that the signature was affixed for the purpose of creating a
valid instrument. But when the name is written near the begin-
ning of the document, where, as a rule, names are inserted by way
of description of the person who is to execute it, and rarely as sig-
natures, it must, before it can be held to have been inserted for
the purpose of validating the instrument, be proved to have been
written with that intent.

The record contains no evidence tending to show that Mrs.
Booth, directly or indirectly, by word or gesture, referred to her
name in the first line of the paper as her signature, nor is there
evidence of any act on her part from which it might be inferred
that the name there written was intended to be in execution of a
completed will, and her simple declaration to Mamie Clifford, one
of the subscribing witnesses : " This is my will ; take it and sign
it," standing alone, is insufficient to sustain a finding or verdict,
that the name " Cecilia L. Booth," written by her in the first line
of the document, was there written with intent that it should have
effect as her signature in final execution of a will.

We are referred by the learned counsel for the appellant to In re
Higgins (94 JST. Y. 554) ; In re Phillips (98 Id. 267) ; In re Hunt
(110 Id. 278), in which it was held that when a testator subscribes
a will at the end and exhibits it and the signature to the subscribing
witnesses, declares it to be his last will and testament and requests
them to sign it as witnesses, it is a sufficient acknowledgment of
the signature. Those cases are quite different from the one at bar,
in this : The signatures having been subscribed at the end, in the
usual way in which instruments are finally authenticated, the legal
presumption arose that the signatures were written for the pur-
pose of finally executing the documents, but as we have before
shown, there is no legal presumption arising from the face of this
instrument that the name was written as a signature, nor is there

SIGNATURE "AT THE END " OF THE WILL. 229

evidence outside of the paper from which such an inference can
be safely drawn. It has been the object of the statute's of the vari-
ous States prescribing the mode in which wills must be executed,
to throw such safeguards around those transactions as will prevent
fraud and imposition, and it is wiser to construe these statutes
closely, rather than loosely, and so open a door for the perpetra-
tion of the mischiefs which the statutes were designed to prevent.

The judgment and orders appealed from should be affirmed,
with costs, payable out of the estate.

All concur.

Judgment affirmed.

(h). Position specified by Statute.

SIGNATURE "AT THE END" OF THE WILL.

Matter of Jacobson.

Surrogate's Court, New York County, New York, 1887.

(6 Dem. 298.)

Application for probate of decedent's will.

RoUms, S.— I am satisfied, by the testimony submitted in this
proceeding, that the paper propounded for probate as the will of
Dorothea Jacobson was signed by her in the presence of the sub-
scribing witnesses ; that those witnesses severally appended their
names to such paper at her request, and that, in their presence, she
declared it to be her will. It is, however, contended that probate
should be denied because the signature of the testatrix is not at
k -tli<- end" of the instrument, as required by law.

('|,"ii examination of the alleged will, it appears that the signa-
tures of the witnesses are below the signature of the decedent, and
that, underneath them all, appear the words: -William Wolff to
be executor. Witness Dv. Harris, Mrs. Abrahamson and Mi.
Goldberg." WTien tlii- wa8 written, or by whom it was written,

the testimony does not clearly disclose. There is no appointment
of an executor in the body of the instrument, and if in fad the
words above quoted were inserted before execution, they musl he
considered a- a part of a pretended testamentary paper, which is
invalid for the reason insisted upon by the contestant's counsel. H.
<„, the other hand, the word.- in question were not npmi the paper

280 EXECUTION.

at the time it was signed and published, its validity has not been
destroyed by their subsequent insertion.

Further evidence may be offered in this regard, before the final
determination of this controversy.

[See also Glancy v. Glancy, 17 Ohio St. 134 ; Appeal of Wine-
land (Penn.), 12 Atl. E. 301 ; Sisters of Charity v. Kelly, 67 N. Y.
409 (415) ; Matter of Hewitt, 91 N. Y. 261 ; Younger v. Duffie,
94 N. Y. 535 ; Matter of Conway, 124 N. Y. 455 ; Matter of
O'Neil, 91 N. Y. 516 ; Brady v. McCrosson, 5 Kedf. (N. Y.) 431.

SIGNATURE "AT THE END" OF THE WILL.
Conboy, appellant, v. Jennings et al.

New York Supreme Court, 1873.
(1 T. & C. 622.)

Appeal from decree of surrogate of New York County denying
probate to will of John Jennings.

Fancher, J. — This is an appeal from a decree of the surrogate
of New York refusing to admit to probate a paper alleged to be
the will of John Jennings, deceased. The paper was written on
three pages of note or letter paper. At the end of the second
page the testator and the witnesses subscribed their names. The
third page contained a sentence addressed to the appellant, which
was subscribed by the testator. The surrogate treated the whole
three pages as one instrument, and decided that one page could not
be rejected while the other two pages were left to stand as the
will. He has not assigned any reason for such a conclusion. The
entire paper reads as follows :

" City and County of New Yorke.

In sound mind and proper since in the name of God I make this
Will. I will two thousand dollars to my sister, Mrs. Conboy, and
seven hundred dollars to John Kindregan, my wife's brother, if he
dies before he can get the money, his three childer may get it, that
is, Mick, James and Kate. I also lave six hundred dollars to Celia,
Mrs. Lorkin, and if she is ded he childer may get the money, equel
share, and twinty pounds to Bridget, Mrs. Madin, and if she is ded
her son Patrick or childer may get it. I also lave fifty dollars to
Bislmp McClusky for the new Catheral, and fifty dollars to the

SIGNATURE "AT THE END" OF THE WILL. 231

Bishup of Brookly for the new Catheral, and fifty dollars to the
Fathers in Howbuckin for there nue church, and fifty dollars to
the sisters, them that is in most need of it. I give full pour and
a-thority and controle to sell my property in Brooklyn to my sister
Mrs. Conboy, and to receive the rent of it, House No. 865 Pacific
street, Brooklyn.

With good since and sound mind I make this will
the tenth day of January eighteen hundred and
seventy-three 1873. John Jennings.

"Witness by us this 10th ) Peter Daly,

day of January, 1873. f Thomas H. Davey.

Margret if you get five thousand dollars for the house you will
give three hundred dollars to Delia and three hundred dollars to
each of the Margrets. John Jennings."

It appears that the testator had written with his own hand the
three pages, and had signed his name in two places, to wit : At the
end of the second page after the date of the paper, and, also, at the
end of the third page, after the remark or request to Margaret.
Such signatures had already been written when the witnesses
attended, and the will was published and attested. There is evi-
dence in the form of the paper, and especially in the wording and
date of it, that the testator intended the first two pages to be his
will, and the residue to be a request to Margaret. There is nothing
in the paper itself, nor in the facts proved, that necessarily estab-
lishes another intention. In point of fact as well as law, the first
two page- have all the requisite formalities and dictinctness of a
will. The paper from the beginning to the end of the two pages
where the testator first signed it, and where the witnesses also
signed their name- to attest its execution, is a sufficient will. More-
over, the circumstance that the testator closed the first two pages
with the date of the instrument and, with his signature, is evidence
that he intended his will to conclude at the end of the first two
pages of the paper. The witnesses concurred in that purpose, by
Bigning their names, as witnesses, t<> an attesting memorandum at

the end of the -re,, ml pa;_ r < ', ti' ■:! rly I »] '1 »< »81 1 6 tli»' signature i>t the

testator. The inference would be thai his will ended there. 1

McGuire v. Kerr. 2 Bradf. 256.

232 EXECUTION.

There is no necessary connection between the remark to Mar-
garet contained in the third page of the paper, and the will itself
written on the first two pages of the paper. The unattested sen-
tence on the third page does not therefore affect the sufficiency or
the validity of the attested will, and is not part of it. Owens v.
Bennett, 5 Ilarr. (Del.) 367 ; Carle v. Underbill, 3 Bradf. 101;
In the goods of Taylor (9 E. L. & E. 582), 15 Jur. 1090 ; In the
goods of Giles Davis, 3 Curteis 748 ; In the goods of Mary Jones,
4 Notes of Cases 532 ; Tonnele v. Hall, 4 N. Y. 140.

It is objected that the signature was not acknowledged. The
testator produced the paper to which he had already affixed his
signature and requested the witnesses to attest it. It was read over
at his request, and he declared it to be his will. It was said by
the learned judge in Baskin v. Baskin, 36 N. Y. 419, that there could
be no more unequivocal acknowledgment of a signature thus affixed,
than presenting it to the witnesses for attestation, and publishing
the paper so subscribed as his will. See, also, the cases there cited.

We think the paper propounded as the will of the testator down
to, and including his first signature, and the signatures of the wit-
nesses, was sufficiently proved before the surrogate as the last will
and testament of John Jennings, deceased, and that the same should
have been admitted to probate.

The decree of the surrogate should be reversed with costs,
chargeable on the estate ; and an order be made that the surrogate
admit to probate that portion of the paper as the will of the testator
above specified. 1

Ingraham, P. J., and Barrett, J., concurred.

Ordered accordingly.

SUBSCRIPTION.— LOUISIANA LAW AND ITS SOURCES.
Succession of Miss Aglac Armant. 2

Louisiana Supreme Court, 1891
(43 La. Ann. 310.)
The opinion of the court was delivered by
Fenner, J.—" Testament d'Aglae Armant." Such is the cap-

1 This case is referred to in the opinion in Sisters of Charity v. Kelly, 67

N. Y. 409 (416).

2 This case is here given chiefly to call attention to the sources of the
Louisiana law and the fact that its history is peculiar.

LOUISIANA LAW AND ITS SOURCES. 233

tion appearing at the beginning of an olographic writing contain-
ing testamentary dispositions and offered for probate as a will, but
without any signature at the end ; and the question is, does this
caption import a signature as required to an olographic testament ?
Before the adoption of the Napoleon Code an ordinance of Louis
XV. provided that olographic testaments should be " entirely writ-
ten," dated and signed in the handwriting of him or her making
them.

Under this provision the jurisprudence of France required, in
the language of Pothier, that " la signature doit etre a la fin de
Tact, parcequ'elle en est le complement et la perfection; e'est
pourquoi un post servptwm apres signature est mil, s'il n'est pas
aussi Bigne." Poth. Don. and Test, Chap. I., Art. 2, Sec. 2.
Thus interpreted, the same provision passed into the Napoleon
Code. The commentators on the Code and the French tribunals
have uniformly adopted the same interpretation. The only excep-
tion made (and that by a divided opinion) is that the date may
follow the signature, and that words written after the signature
which are superfluous may be disregarded. Thus in the case of
Veuve Guyot, the will ended thus: "Fait par moi Pauline d'Es-
pinose Veuve Guyot, qui ai signe apres la lecture et meditation."
The court maintained the will on the ground that the name was
intended as a signature, and that "the two lines which follow the
signature can have no influence on the form of the testament,
which was perfect when they were written.* 1 Jour, du Palais,
20 Apr. 1812. It is useless to cite the French commentators;
they all agree that testamentary dispositions following the signa-
ture are invalid.

The following is a summary of the French doctrine and author-
ities as given by an annotator of the < 'ode : " Although the natural
place of the signature be at the end of the act, because if expresses
the final approval given by the testator to the dispositions of his last
will which he has made it is, however, admitted that the writing
by the testator of bis name toward the end of the act may be con-
sidered as a signature if it is placed after all the dispositions

constituting the testament. It does not matter thai after the name

there may follow some words connected with it, if the words thus

following are superfluous or useless," quoting : Cassation, 20 April,
L813; Merlin Rep. Verbo Signature, Sec. 3, Art. 7; Joullier on

234 EXECUTION.

Art. 970 Fr. Code ; Marcade on Art. 970 Fr. Code ; 4 Demante
No. 115 ; 4 Masse and Yergd, p. 96, Sec. 438 ; 7 Aubry and Rau,
p. 108, Sec. 068; Yazeille on Art. 970, No. 4; 2 Grenier and
Bayle, No. 228 ; 4 St. Espes-Lescot, No. 1010 ; 21 Demolombe,
No. 114; Coin Delisle, Art. 970, No. 42; 3 Troplong, No. 1494;
13 Laurent, No. 227. See also Cross on Successions, who takes
the same view.

Marcade, who is as liberal as any, in commenting on a testament
ending thus : " Fait et signe par moi Michel Francois, Falla, le 20
Dec. 1809," says : " The question must be determined according
to the circumstances of fact. If the names are accompanied with
the ordinary paraph of the party ; if, having no paraph, the
party has taken care to write the name in more pronounced char-
acter than the rest of the writing ; if the name, though written
in like character, is that of a party whose acts generally have been
signed in ordinary writing, and by placing the name in the body
or the concluding phrase, one might say that it was a signature,
and that the testament was valid. But if, on the contrary, the
name thus written was without a paraph and in no manner distin-
guished from the rest of the writing, and comes from a party who
has always attached to his acts an independent signature, one would
say this was not a signature." 4 Marc. p. 10. Applying these
tests, we find that the name of this testatrix is written without a
paraph, though the evidence shows that she usually, but not uni-
versally, employed one ; that the name is written without any
distinctive characteristics, and that, as appears from every docu-
ment produced, she invariably attached an independent signature
at the end. Moreover, it seems to us that the coupling of the " d "
with the name, in itself excludes the idea of its being intended as
a signature.

Thus, under French jurisprudence, this will would fail to stand
for two reasons ; (1) because the writing of the name was not in-
tended as a signature ; (2) because, whether so intended, or not, the
signature was not at the end of the act.

This jurisprudence was extant and well established when, in
1825, the article of the French code was copied into our own. We
think it to be a fair presumption that the framers of our Code,
familiar with the interpretation of the same language, both prior
to and subsequent to the Napoleon code, must have intended and

LOUISIANA LAW AND ITS SOURCES. 235

expected that our own article should receive the same interpreta-
tion, particularly as it conforms to the common and customary
meaning attached to the word signature, as well as to the defini-
tions thereof in all standard dictionaries.

Why should we depart from it ?

It is true that in interpreting a like provision of the first Eng-
lish Statute of Frauds, an English court held that writing the name
at the beginning of the testament supplied the absence of signature
at the end ; and some other courts, with that subjection to prece-
dent which characterizes that system, followed the decision. But
though following it, some of the judges intimated that if it were
res nova they would decide differently, and the doctrine was con-
demned by sound legists. Dr. Browne, in his work on Civil Law,
and Dr. Christian, in his edition of Blackstone, criticise it severely.
Browne's Civ. L., p. 278, note 16.

And such was the prevalent dissatisfaction that an act of Parlia-
ment was passed to amend the statute so as expressly to require
the signature to be at the hottom of the testament.

"We were at first much impressed with the clear proof made
that the deceased intended this paper to be her testament. But
there is no more doubt that she intended the invalid nuncupative
codicil to be her testament. Yet, as the latter was attested by
women, who are incompetent testamentary witnesses, no one claims
it- validity. And so if the olographic will is not signed as required
by law, her intentions cannot save it.

The question is not whether she intended this paper to be her
will, but whether it is a will clothed with the forms of law. An
olograph, like every other testament, is a solemn act. It matters
not how clearly it conveys the last wishes of the decedent, if it is

not clothed with the forms prescribed, it is null.

Even apart from the name not being at the end of the testa-
ment, we think the proof doe- not show thai she intended to sign
at all. It simply -hows that she did not think or know that a sig-
nature wae essential. If she had known thai it was necessary thai

tin' testamenl Bhonld !><■ signed, if is impossible t seive how,

in so importanl ;i matter, -he should have acted bo ambiguously
;m<l bo differently from the course universally pursued by her in
signing other acts and documents of every description. The
simple fad is she did not know a signature wai necessary, and

236 EXECUTION.

therefore did not sign. Her mistake in this respect is unfortunate
in the interests of justice, but it cannot save the will.

The remaining contention of appellant, that the testatrix had
signed the will at the end of the act, and that her signature had
been cut off by some third person, is so inconsistent with the one
just disposed of, that it hardly lies in the mouth of appellant to
urge them both. But, moreover, it is unsupported by proof and
has nothing to rest on.

Judgment affirmed.

[Alfred N. Duffie, a testator, subscribed his name after the
attestation clause. The question was whether the will was " sub-
scribed at the end." The court hold that unnecessary matter, such
as the attestation clause, or even entirely irrelevant matter, as, in
the case supposed by the court, the Apostles' Creed, may be in-
corporated into a will and form part of it, if testator so chooses,
and in such case the signature, though following it, will be "at
the end of the will." 'J

II. MAKING OR ACKNOWLEDGMENT OP SIGNATURE
BEFORE WITNESSES.

Here also the statutes of the different jurisdictions vary among
themselves. That of New York, for instance, requires that the
testator shall either make his subscription in the presence of the
attesting witnesses ; or shall acknowledge it to each of the attest-
ing witnesses to have been made ; while under that of Virginia 2 the
signature must be made in such a manner as to make it manifest
that the name is intended as a signature, and moreover that unless
the will be wholly written by the testator, the signature shall be
made or the will acknowledged by him in the presence of witnesses
present at the same time ; and in Massachusetts 3 the signature need
be neither made nor acknowledged by him in the presence of the
witnesses. The various leading requirements under this head,
found in all or some of the statutes of wills, may be best examined
under the following division. In every instance, the particular
statute involved must be considered.

1 Younger v. Duffle, 94 N. Y. 535. 2 Code of Va., sec. 2514.

3 Mass. Pub. Stat. 747, sec. 1.

ACKNOWLEDGMENT OF SIGNATURE. 237

(a). Signed in presence of witnesses.

The principles governing the interpretation of this phrase are
more commonly discussed in connection with the usual analogous
provision that the witnesses must sign in the presence of the tes-
tator. Statement of them may therefore be conveniently deferred
until we take up the subject of signing by witnesses.

(b). Acknowledgment of testator's signature.

Here the testator signs the will beforehand, and, if required by
the governing statute, he must then acknowledge it before the
witnesses.

Illustration.

1. John Hoysradt, the testator, signed the will in the presence
of one witness, subsequently acknowledged his signature to a
second, and later still acknowledged it to a third. Under the
terms of the New York statute above stated, this was held suffi-
cient. 1

2. Sometimes, however, as in the present English Wills Act,
the acknowledgment must be made before two or more witnesses
" present at the same time."

ACKNOWLEDGMENT OF SIGNATURE.
Buskin v. Buskin unci others.

New York Court of Appeals, 1867.
(36 N. Y. 416.)

Appeal from a judgment of the Supreme Court, reversing the
decree of the surrogate <>f Yates County, rejecting the will of
"William Baskin, deceased. The facts are sufficiently stated in the

opinion.

Porter, J. The mere statement of the facts is decisive of the
issue. Tin- will waa prepared in the presence of the testator, and
under his immediate direction. It received his approval, clause by

clause. The whole in.-t nmieiit was then read t<> him, and he SUb-

Bcribed it in the presence of the draftsman, who, al his request,

Boysrodl v. Kingman, 22 N. V 872; followed, Matter of Potter, 88 N. V.
State Rep. 986; bo, also, Grubba v. Marshall (Ky.), 18 S. W. 447.

238 EXECUTION.

signed it as an attesting witness. The other witness, Mr. Wilsey,
was called in from an adjoining apartment, and the testator told
him he wished him to sign the will. The instrument was then on
the stand at his bedside, where he had just before subscribed it.
Mr. Wilsey saw that his signature was already attached ; and the tes-
tator, taking the paper thus executed in his hand, in presence of
both the witnesses, declared it to be his last will and testament.
In compliance with his request, Wilsey then subscribed the attes-
tation clause, which stated that the will was signed and published
in the presence of the attesting witnesses. It is clear that the tes-
tator intended a complete execution of the instrument ; that with
this view he signed it ; that he supposed he was acknowledging
tliat he had done so, when he requested Wilsey to attest the truth
of the facts stated in the certificate ; and that Wilsey so supposed
when he certified that he was a witness to the signature as well as
the publication. The remark of the testator that " this kills the
other will," would have been wholly unmeaning if he did not in-
tend to acknowledge the signature he had affixed to the will which
he held in his hand.

The subscription and publication of a testamentary instrument
are independent facts, each of which is essential to its complete
execution. (2 R. S. 63, sec. 40.) The requirement that the first
shall be made or acknowledged in the presence of each of the wit-
nesses who attest it, is to identify and authenticate the instrument
as one subscribed by the party. The requirement of publication
in preseuce of each, is to prevent imposition upon the testator by
procuring him to execute and acknowledge a will or codicil, under
pretence that it is a paper of a different nature. The two prerequi-
sites are distinct, in their nature, as well as their purpose, and an
omission to comply with either is fatal to the validity of the in-
strument. There must be satisfactory proof of the subscription and
publication of the will in the presence of two witnesses. In re-
spect to the subscription, it is sufficient that it be either made, or
acknowledged, in the presence of those who attest it. If it be un-
signed, it is no will ; and in that case, publication and attestation
are alike unavailing. If signed by another than the testator, and
the signature be purposely concealed from his view and that of
the attesting witnesses, the mere publication of the instrument as
his last will and testament cannot fairly be deemed an acknowledg-

SIGNATURE NOT VISIBLE TO WITNESSES. 239

merit that the unseen subscription was made by his direction.
(Chaffee v. Baptist Missionary Convention, 10 Paige 85, 91 ; Lewis
v. Lewis, 1 Kern. 220 ; Rutherford v. Rutherford, 1 Denio 33.)

When, however, the testator produces a paper to which he has
personally affixed his signature, requests the witnesses to attest it,
and declares it to be his last will and testament, he does all that
the law requires. It is enough that he verifies the subscription as
authentic, without reference to the form in which the acknowl-
edgment is made ; and there could be no more unequivocal ac-
knowledgment of a signature thus affixed, than presenting it to the
witnesses for attestation, and publishing the paper so subscribed
as his will. (Peck v. Cary, 27 N. Y. 9, 29, 30 ; Tarrent v. Ware,
25 Id. 125, note ; Coffin v. Coffin, 23 Id. 9, 15, 16 ; Nickerson v.
Buck, 12 dishing 332, 312; Dewey v. Dewey, 1 Mete. 353;
Gage v. Gage, 3 Curteis 451 ; Blake v. Knight, Id. 547 ; White v.
Trustees of British Museum, Bing. 310.) [Matter of Phillips,
98 N. Y. 267 (273); Matter of Look, 26 K Y. State Rep. 745
(affi'd 125 N. Y. 762) ; Daintree v. Butcher, 13 P. D. 102.]

The judgment of the Supreme Court should be affirmed.

All the judges concurred in the opinion of Porter, J., except
Parker, J., who delivered a dissenting opinion, in which Grover,
J., concurred.

Judgment affirmed.

[ But in a case where the only request was made by a third party,
in another room, and it was not clear that testator even heard the
request, the fact of the request, and signing by the witness, would
imt involve the conclusion of an implied "declaration" by testator.
Ludlow v. Ludlow, 35 N. J. Eq. 480.]

SIGNATURE NOT VISIBLE TO WITNESSES.
■n re Mackay's Will.

New Youk Coukt of Appeals, 1888.
(110 N. Y. 611.)

Appeal from judgment of the General Term of the Supreme
( lourt, third department.
The surrogate of St. Liwrenee ( oimt\ refused probate to the

240 EXECUTION.

will of James Mackay, deceased. On appeal to the General Term
the surrogate's decree was affirmed. From the General Term
judgment this appeal was taken to the Court of Appeals.

Earl, J. — The subscribing witnesses came to the dwelling-house
of the deceased by previous appointment, and, while seated at
his writing-desk, he said to them : " Gentlemen, what I sent for
you for was to sign my last will and testament." Thereupon he
took from his writing-desk the instrument offered for probate,
and, laying it before the witnesses, said : " It is now all ready,
awaiting your signatures." He then presented the instrument to
the witness McCarrier for his signature, and he signed it, saying,
as he did so, "I am glad, Father Mackay, you are making your
will at this time ; I don't suppose it will shorten your life any,"
to which he replied, " Yes, he wanted it done, and off his mind ";
and then the witness Mulligan, who had joined in this conversa-
tion, signed the instrument, as a witness. At the time of exhibit-
ing the instrument to the subscribing witnesses he told them it
was his will ; but he handed it to them so folded that they could
see no part of the writing, except the attestation clause, and they
did not see either his signature or seal.

There would undoubtedly have been a formal execution of the
will, in compliance with the statutes, if the witnesses had at the
time seen the signature of the testator to the will. Subscribing
witnesses to a will are required by law, for the purpose of attesting
and identifying the signature of the testator, and that they cannot
do unless at the time of the attestation they see it. And so it has
been held in this court. In Lewis v. Lewis, 11 N. Y. 221, where
the alleged will was not subscribed by the testator in the presence
of the witnesses, and when they signed their names to it, it was so
folded that they could not see whether it was signed by him or not,
and the only acknowledgment or declaration made by him to them,
or in their presence, as to the instrument, was, " I declare the within
to be my will and deed," it was held that this was not a sufficient
acknowledgment of his subscription to the witnesses within the
statute. In that case Allen, J., writing the opinion, said : " A sig-
nature neither seen, identified, or in any manner referred to as a
separate and distinct thing, cannot in any just sense be said to be
acknowledged by a reference to the entire instrument by name to
which the signature may or may not be at the time subscribed."

DECLARATION OF THE WILL. 241

In Mitchell v. Mitchell, 16 Hun 97. affirmed in this court in 77
N. Y. 506, the deceased came into a store where two persons were,
and produced a paper, and said : " I have a paper which I want
you to sign." One of the persons took the paper, and saw what it
was and the signature of the deceased. The testator then said :
" This is mv will ; I want you to witness it." Both of the persons
thereupon signed the paper as witnesses, under the attestation clause.
The deceased then took the paper, and said, "I declare this to be my
last will and testament," and delivered it to one of the witnesses for
safe keeping. At the time when this took place the paper had the
name of the deceased at the end thereof. It was held that the will
was not properly executed, for the reason that one of the witnesses
did not see the testator's signature, and as to that witness there was
not a sufficient acknowledgment of the signature or a proper attes-
tation. It is true that in Willis v. Mott, 36 N. Y. 486, 491, Davies,
Ch. J., writing the opinion of the court, said that " the statute
does not require that the testator shall exhibit his subscription to
the will at the time he makes the acknowledgment. It would
therefore follow that when the subscription is acknowledged to an
attesting witness it is not essential that the signature be exhibited
to the witness." This is a mere dictum, unnecessary to the decision
in that case, and therefore cannot have weight as authority. The
formalities prescribed by the statute are safeguards thrown around
the testator to prevent fraud and imposition. To this end the wit-
n< 'sscs should either see the testator subscribe his name, or he should,
the signature being visible to him and to them, acknowledge it to
be his signature. Otherwise imposition might be possible, and
Bometimea the purpose of the statute might be frustrated. We
think, therefore, that probate of the will was properly refused, and
that the judgment below should be affirmed, without costs.

All concur.

Judgment affirmed.

III. DECLARATION OF TTTE WILL TO WITNESSES.

In some jurisdictions it is required thai the testator shall declare
the [nstrumenl in question to be his lasl will. 1

Mun.lv v. M.m.ly, 18 V .1. Eq. 290; Odenwaelder v. Schorr, 8 Mo. A.pp.
168; Lewi v. Lewis, ll NT. Y. 220 I Ivi □ post).
L6

242 EXECUTION.

In other jurisdictions it is not necessary that the witnesses should
know even in fact that the instrument the execution of which they
are attesting is a will. 1

(a). Where declaration is not required.

George A. Turner, a testator, did not inform the witnesses
that the instrument they were signing was a will. In a suit
brought to contest the will, the trial judge charged the jury that a
testator must in some way communicate to the witnesses the fact
that the instrument is testamentary. On appeal the court say :
" Our statute [of Indiana] requires, in order to the valid execution
of a will, that it shall be signed by the testator, or by some one in
his presence, with his consent, and attested and subscribed in his
presence by two or more witnesses. 2 G. & H. 555, sec. 18.
There is nothing in this statute which requires that the testator
shall make known to the subscribing witnesses that the paper
which they are to subscribe is a will." 3

(h). Wfiere declaration is required.

DECLARATION OF THE WILL.
Lewis v. Lewis.

(1854. 11 N. Y. 220.)

Appeal from a decree of the General Term of the Supreme
Court affirming a decree of the surrogate of Kings County, which
denied probate to an instrument propounded as the last will and
testament of Thomas Lewis.

There were two objections to the instrument. 1. That the sub-
scription was not made or acknowledged by the decedent, in the
presence of the attesting witnesses ; and 2. That it was not de-
clared by him at the time to be his last will and testament.

It appeared that the testator called the witnesses into his office
and turned up enough of a paper he had there to allow them to
sign and asked them to do so. He merely said : " I declare the
within to be my free will and deed." The witnesses did not know

1 Osborn v. Cook, 11 Cush. 532; Turner v. Cook, 36 Ind. 129; Canada's Ap-
peal, 47 Conn. 450; Flood v. Pragoff, 79 Ky. 607; Brown v. Mc blister, 34
Ind. 375.
. 2 Turner v. Cook, 36 Ind. 129.

DECLARATION OF THE WILL. 2-13

that the paper was a will, though one of them thought it might be
because testator had that morning sent out and procured a blank
will. On the question of a declaration nothing further appeared.

TT. F. Allen, J. (After giving the statutory requirements, and
making some preliminary statements of principle, and finding the
first of the two objections sustained.)

The second objection to the probate is also well taken. To
satisfy the statute the testator must in some manner communicate
to the attesting witnesses at the time they are called to sign as
witnesses, the information that the instrument then present is of a
testamentary character, and that he then recognizes it as his will,
and intends to give it effect as such. It must be declared to be his
last will and testament by some assertion or some clear assent in
words or signs, and the declaration must be unequivocal. (Brinck-
erhoof \ . Remsen [8 Pai. 488 ; affi'd 2ti Wend. 325] ; Rutherford v.
Rutherford, L Denio 33.) The policy and ohject of the statute re
quire this, and nothing short of this will prevent the mischief and
fraud which were designed to be reached by it. It will not suffice
that the witnesses have elsewhere and from other sources learned
that the document which they are called to attest is a will, or that
they suspect or infer from the circumstances and occasion that such
is the character of the paper. The fact must in some manner,
although no particular form of words is required, be declared by
the testator in their presence, that they may not only know the
fact, hut that they may know it from him, and that he understands
it, and at the time of its execution, which includes publication,
designs to rive eifect to it as his will, and to this, among other
thing-, they are required by statute to attest. Every fact is im-
portant in view (.1' the position of the attesting witnesses. They
should he satisfied that the instrument is in truth the lasl will and
testameni <>\' the party, and is executed and published as such, and

t|,;it h e is of -'Mind and disposing mind and memory, and in all

respects competent to perform the act. The law simply prescribes
those forms which it was supposed were best calculated to enable
the witnesses to fulfil their office and attest the due execution of
the will. 'Idie declaration that the instrument was his free will
and deed, was equivocal, and would he satisfied by ;i deed executed
voluntarily. It did not necessarily inform the witnesses that it was
a will by excluding every other instrument from the mind. From

244 EXECUTION.

the expression they could not know that the testator did not sup-
pose the instrument was a deed. It is a very common form of
acknowledgment of the execution of a deed to acknowledge it as
the ki free act and deed " of the party, and the expression of the
decedent varied but little from this form.

It is not probable that any wrong would be done in this case to
the parties or to the intentions of the deceased to give effect to this
document as a will, and although we may regret that the provisions
which he designed to make for his family, and doubtless supposed
he had made, must fail for the want of the prescribed formalities,
the statute is quite too explicit to authorize a departure from its
terms ; and although it may operate with apparent harshness in this
case, it is a beneficent and wise statute, and the public interests
will be best subserved by a strict adherence to its provisions.

The judgment of the Supreme Court affirming the decree of the
surrogate must be affirmed with costs.

Judgment affirmed.

DECLARATION OF THE WILL.

Emeline Lane as Executrix, etc., Appellant, v. Henry F.

Lane, Respondent.

New York Court op Appeals, 1884.

(95 N. Y. 494.)

Proceedings for probate of will of Frederick F. Lane.

Appeal.

Danforth, J. — A paper purporting to be the last will and testa-
ment of Frederick F. Lane was admitted to probate by the surro-
gate of Schuyler County, but his decision was reversed by the
Supreme Court, and certain issues relating to its execution and the
testamentary capacity of the testator were sent to a jury for trial.
They have been so answered as to establish that the instrument in
question was first read to or by the testator ; that he understood it
was his last will and testament, and so subscribed the same at the
end thereof in the presence of two persons, viz. : S. B. H. Nichols
and L. C. Wakelee, who at his request subscribed their names
thereto as attesting witnesses ; that the testator at the time was
fully competent to make a will, and not disabled either in respect
of his person, mind, or condition, being under no restraint or un-

DECLARATION OF THE WILL. 245

due influence, and of sound and disposing mind and memory ;
that the making and executing of this instrument was his free and
voluntary act ; that at the time he " fully comprehended the effect
of his act in so executing the same, and that of the subscribing
witnesses thereto." But to the question whether " at the time of
subscribing the paper he declared in the presence of the subscribing
witnesses, and each of them, that the instrument so subscribed was
his last will and testament," the jury answered, " Yes, as to Nichols ;
no, as to Wakelee."

The proponent upon a case and exceptions moved the Supreme
Court at General Term for a new trial, and it being denied, brings
this appeal. It is now stated in the printed points of the learned
counsel for the respondent, that after verdict the proponent moved
the judge who presided at the trial for judgment non obstante ver-
dicto, or a new trial, and was denied. lie claims, therefore, that the
proponent should have taken an appeal from that decision to the
General Term instead of going there with an original motion.
No basis for this contention appears in the record before us.
Therefore, it is not necessary to pass upon it. We are of opinion,
moreover, that the appellant is entitled to a new trial upon the
ground that the verdict of the jury in answer to the question re-
ferred to, was not warranted by the evidence. They found that
the subscription by the testator was at the proper place (2 K. S. 63,
sec. 40, sul). l),.and that he subscribed the will in the presence of
each of the attesting witnesses ; that each of these witnesses signed
his name as a witness to the execution of the will at the request of
the testator (sub. 4, id.), thus showingexact and formal compliance
with all statutory requirements save one, viz.: that "the testator
at tlit* time of making such subscription . . . shall declare the in-
strument so subscribed to be his last will and testament " (sub. :'.,
id.). But upon the other conclusions of the jury, and the uncon-
tradicted evidence in the record, we think this question also should
have been fully answered in the affirmative. It is quite probable
that the jury were led to their discriminating answer by a too close

and exclusive adherence to the testimony of one witness, who said,

"when "Wakelee came in he did not ask Mi-. Lane if that was his

last will and testament, nor did Mr. bane say 'thai is my last will
and testament; " and to that of Wakelee himself, who said, k> I did
not ask Mr. Lane if that was his la.-t will and testament, nor did

246 EXECUTION.

Mr. Lane say to me, ' Yes, this is my last will and testament.' " It
was but negative evidence, and if true, was not conclusive as to the
fact in controversy. The jury were also to consider the conduct
of the testator, his acts, and the circumstances which he created and
which surrounded the transaction. Upon all these things the pro-
ponent might notwithstanding that testimony rely and succeed.

Although publication is as essential to the validity of a will as
its execution or other prescribed formality, it has never been sup-
posed that a particular, or even any, form of words was necessary
to effect it, and in Remsen v. Brinckerhoof (in the late Court of
Errors, 26 Wend. 325), one of the first cases arising after the enact-
ment of the statute, it was said that by the provision in question,
" the legislature only meant there should be some communication
to the witnesses indicating that the testator intended to give effect
to the paper as his will, and that any communication of this idea
or to this effect will meet the object of the statute, that it is enough
if in some way or mode the testator indicates that the instrument
the witnesses are requested to subscribe as such is intended or un-
derstood by him to be his will." In the same case the word " de-
clare " is said to signify " to make known, to assert to others, to
show forth," and this in any manner, either " by words or acts, in
writing or by signs"; in fine, "that to declare to a witness that the
instrument described was the testator's will, must mean to make it
at the time distinctly known to him by some assertion, or by clear
assent in words or signs." The case itself is an example and ex-
planation of this construction. Probate was there held impossible,
because, as the court say, " not one word, or sign, or even act,
passed within the hearing or presence of the witnesses at the time
of the execution, tending to this effect." It was therefore a case
where a testator, through imposition, might have been induced to
execute a will under pretence that it was a paper of a different
nature. To prevent this was the object of the statutory require-
ment.

The principle upon which that decision rests, and the reasoning
by which it was supported, has been invariably applied in this
court. (Cotfin v. Coffin, 23 N. Y. 1 ; Trustees of Auburn Semi-
nary v. Calhoun, 25 Id. 422; Gilbert v. Knox, 52 Id. 125;
Thompson v. Seastedt, 6 Thomp. & Cook 78 ; affirmed sub nom.
Thompson v. Stevens, 62 K Y. 634 ; Rugg v. Rugg, 83 Id. 592 ;

DECLARATION OF THE WILL. 247

Dack v. Dack, Si Id. 663 ; In re Pepoon, 91 Id. 255.) It is,
therefore, to be deemed settled that a substantia] compliance with
the statute is sufficient. [McCoy v. Empire Warehouse Co., 125
N. Y. 765.] Mitchell v. Mitchell (16 Hun 97 ; affirmed 77 N". Y.
596, cited by the respondent) recognizes the same principle. But
in that case there was no evidence that the testator signed the will
in the presence of either of the attesting witnesses, and only one
saw the signature. The court thought it could not be inferred
from the testimony that the testator acknowledged the signature
to the other as one in fact made by him ; but even as to this the
court was not unanimous in opinion. That case, also, arose under
a different subdivision of the statute (supra, sub. 2).

As to the condition now under consideration, it is well settled
that the necessary publication may be discovered by circumstances
as well as words (Lewis v. Lewis, 11 N. Y. 220), and inferred
from the conduct and acts of the testator and that of the attesting
witnesses in his presence (Thompson v. Seastedt, and other cases,
supra), as well as established by their direct and positive evi-
dence. Even a person both deaf and dumb may by writing or
signs make his will and declare it. The testator in this case was
in full possession of all his senses. He could both see and hear,
and was not dumb. Partial paralysis of the vocal organs pre-
vented him from uttering words, but he made sounds intelligible
to those familiar with him, and signs which, to some extent, all
could interpret. There was no difficulty with his understanding.
The uncontradicted evidence shows that he set about making his
will in a serious and determined manner. He went with his wife
and son from his own to the house of the scrivener, Nichols, and
there, Nichols says, " bis wife, speaking in his presence, informed
mi- that Mr. Lane wanted me to write bis will, and I did so in his
presence." A.8 the scrivener wrote each section be read it aloud
to the testator, who nodded approval each time. While writing,
something was said about a witness for the will, and, says Nichols,
•• I suggested Wakelee, and Lane assenting, he was sent for and

came." .... "I introduced Wakelee to Lane, and informed him

that I was writing Mr. Lane's will, and we had sent for him as a
witne88." This was before the will w;is completed, and after it

had occurred Nichols finished writing, and then the testator took
it and read it himself. As this happened while the will was in

248 EXECUTION.

preparation, it is obvious that Wakelee was present when it was
finished, and when the last of it was read to the testator, and also
while he himself read it. The testator and both witnesses all sat
at one table when the will was subscribed and witnessed. This
was done by the testator immediately after reading it, and in the
presence of each and both witnesses; they saw him read the will
and subscribe it. He " shoved " the will to Nichols, who signed
it, and then got up and Wakelee sat down "in Nichols' chair,"
and signed it. The testator left the will with Nichols several
months, and then, by his directions, he gave it to Mrs. Lane.

From the situation of the parties, and the circumstances sur-
rounding them, it seems to us that the jury were fully justified in
saying that the testator made the required declaration to Nichols,
and we think their verdict should have been the same as to Wake-
lee. They were present and together during both events of exe-
cuting and attesting the will, and the conduct of the testator upon
that occasion amounted to a declaration that the instrument was
his will and testament. Such also is the meaning of the attesta-
tion clause, and this, upon such a question, may be referred to
Brown v. Clark (77 N. Y. 369) ; Chaffee v. Baptist Missionary
Convention (10 Paige 85). It is not in the usual form, but recites
that " as witnesses to this last will and testament of Frederick F.
Lane, we have signed our names .... by his request, in his
presence, and in the presence of each other." The request covers
the act of the parties, and embodies a description of the instru-
ment when declaring the character in which the witnesses attest
it. It is as if the testater had said, I request you to sign as wit-
nesses to my will. Two facts are involved, a statement of the
paper and a desire on his part. Such declaration may also be in-
ferred from his conduct. He knew the paper was his will ; he
had directed its preparation ; it was written in his presence, read
to him, and read by him. He had desired Wakelee's presence to
witness the will, and sitting by him, and by the other witness
after signing it, passes it to one for signature, and sees first that
one to whom he had declared the paper to be his will, and then
the other, sign as attesting witnesses. For what purpose and with
what intelligence this was done the jury have found ; they say
that at the time of the execution of the paper writing purporting
to be the last will and testament of Frederick F. Lane, he fully

ANIMUS TESTAXDI. 249

comprehended the effect of his said act in so subscribing the same,
and that {i.e., the effect of the act) of the subscribing witnesses
thereto. They have said, moreover, that " he then understood
that this paper was his last will and testament," and that the wit-
nesses subscribed " said paper purporting to be said will, as attest-
ing witnesses, at the request of the testator."

We find no room for doubt or mistake. The testator knew,
and the witnesses understood from his acts and conduct, as he in-
tended they should, that the instrument then executed was his
will. The statute upon this point exacts nothing more, and it is
not denied by the respondent that on every other there was strict
compliance with its terms. We find then that the testator sub-
scribed the will in the presence of the witnesses, made known to
them its nature, and requested their attestation. On his part
nothing more was required, and on their part was attestation of
the will at his request. Thus every safeguard prescribed by statute
against improvidence and fraud was substantially observed

The order appealed from should, therefore, be reversed, and a
new trial granted, costs to abide the event.

All concur, except Rapallo, J., not voting.

Ordered accordingly.

[Also McCoy v. Empire, etc. Co., 125 K Y. 765 ; Denny v.
Finney's Heirs (Vt.), 12 Atl. Rep. 108 ; Matter of Voorhis, 125
K Y. 765. In the case of Gilbert v. Knox, 52 K Y. 125, the
draftsman, who was also a subscribing witness, stated, in the pres-
ence and hearing of testator and the other witness, that the paper
before them was testator's will, and that testator wished them i<>
sign as witnesses. The testator said nothing, but took the will
after execution, and retained it. This was held to be a due "dec-
laration" by testator.]

ANIMUS TESTANDI.

It is obvious that although a paper is drawn np in the usual form
and appears on its face to have been duly executed as a will, if may,
neverthele— , represent no serious testamentary intention. The tes-
tator may, for instance, not have known, in Pact, what provisions
wen- really contained iii the paper, and may oot have intended to
■•lite a will sueh as that in question. ( )i\ he may have executed
it merely in jest. If such a state >>\' facts appears, the execution

250 EXECUTION.

lacks an element essential to the validity of a will, — namely, an
animus testandi, an intent, on testator's part, to make a will, or the
given will. But if all the statutory formalities have been observed,
the fact that the will was executed in jest, or for a mere collateral
use, should be clearly made out in order to warrant denial of pro-
bate. 1 And so far as concerns knowledge on testator's part of the
contents of the will executed by him, this will be presumed unless
•facts are shown, such, for instance, as blindness, which render it
incumbent on the proponent to show, in some sufficient manner,
that the testator was truly informed of the provisions.

ABSENCE OF ANIMUS TESTANDI.
Lister and Others v. Smith and Others.

English Court of Probate, 1863.
(3 Sw. & Tr. 282.)

In this case the plaintiffs, as executors, propounded a will of
Ralph Wheeldon Smith, dated October, 1858, and a codicil thereto,
dated 27th of July, 1860. Various parties were cited (s. c. 3 Sw.
& Tr. 53).

Sir J. P. Wilde made the following remarks to the jury in sum-
ming up : The facts of the case lie in a very small compass, but
the question is of great importance. It tends to make wills of any
of us very insecure, if a regularly executed document, purporting
on the face of it to be testamentary, can be set aside by evidence
of the sort you have just heard as to the intention of the testator,
that such a paper should have no testamentary effect ; but I think
I must leave it to you to say whether, upon the evidence, the de-
ceased signed the codicil intending it to be an effective instrument,
or whether he signed it as a mere sham. I must tell you that the
presumption is that he intended it to be an effective instrument,
and it is the duty of those who say it was not so intended, to make
out that proposition very clearly.

The jury found by their verdict, that the deceased did not sign

1 Lister v. Smith, 3 Sw. & Tr. 282 (given post); Nichols v. Nichols, 2 Phillim.
180 (given post). The more detailed and strict the statutory requirements,
the less, of course, "will such questions be likely to arise.

ABSENCE OF ANIMUS TESTAXDI. 251

the paper intending it to have any testamentary operation, and the
court reserved any question as to the effect of this finding of fact
upon the codicil and as to costs.

(Dec. 22.) Sir J. P. Wilde— The case has been very well
argued by Dr. Tristram, and the court is much indebted to him
for the authorities which he has collected. It is a most remarkable
case, and one which, since the trial, has given me some anxiety.

The question raised is whether a certain codicil is or is not en-
titled to probate. It is regularly executed by the testator, but
evidence was given at the trial that the testator never intended it
seriously to operate as a testamentary document. It was proved
before the jury that the testator wished one of his family to give
up a house which she then occupied, and that to force her to do so,
he made pretence of revoking by codicil a bequest which he had
made by will in favour of this woman's daughter, and that the paper
in question was made with that sole object; that the testator gave
his attorney instructions to prepare it with that intention, and in-
formed him before it was drawn that he never wished it to operate
at all. Further, that the attorney pointed out the folly of exe-
cuting such an instrument, and would have nothing to do with its
execution. It was, however, executed in the presence of the testa-
tor's brother, to whom it was then given by the testator with ex-
press directions that he was not to part with it, and that it was in
no event to operate, or to revoke the bequest made in his will,
but to be used only in the manner above described. Similar dec-
larations were made by the testator at the moment of its execution.

A codicil thus duly executed in point of form, and attested by
twowitnesses, has been directly impeached byparol testimony. It
bears all the appearance on the face of it of a regular testamentary
act ; but on the evidence it has been found by the jury not to bave
been intended as snch by the testator. The momentous conse-
quence of permitting parol evidence thus to outweigh the sanction

of a solemn act are obvious. It has a tendency to place all wills
at the mercy of a parol story that the testator did not mean what

1.,. said. <)n the other hand, if the fad is plainly and conclusively
made out, thai the paper which appears to be the record of a testa-
mentary act, was in reality the offspring of a jest, or the resull "I
contrivance to effeel some collateral object, and never seriously in-
tended as a disposition of property, it is not reasonable that the

252 EXECUTION.

court should turn it into an effective instrument. And such no
doubt is the law. There must be the animus testandi. In Nichols
v. Nichols, 2 Phill. ISO [given post], the court refused probate to
a will regularly executed, which was proved to have been intended
only as a specimen of the brevity of expression of which a will was
capable. And in Trevelyan v. Trevelyan, 1 Phill. 149, the court ad-
mitted«cvidence, and entertained the question whether the document
was seriouslv intended or not. In both cases the court held that
evidence was admissible of the animus testandi. And to the same
effect is the authority of Swinb. pt. 1, s. 3 ; and of Shep. Touch.
404. The analogies of the common law point the same way. A
deed delivered as an escrow, though regularly executed, is not bind-
ing. And in Pym v. Campbell, 6 Ell. and Bl., the Queen's Bench
held that a regular agreement signed by the party might be avoided
by parol evidence that at the time of its signature it was under-
stood that it should not operate unless a certain event happened.
There can therefore be no doubt of the result in point of law if
the fact is once established. But here I must remark that the
court ought not, I think, to permit the fact to be taken as estab-
lished, unless the evidence is very cogent and conclusive. It is a
misfortune attending the determination of fact by a jury, that their
verdict recognizes and expresses no degree of clearness in proof.
They are sworn to find one way or the other, and they do so some-
times on proof amounting almost to demonstration, at others on a
mere balance of testimony ; sometimes upon written admissions
and independent facts proved by disinterested parties, sometimes
on conflicting oaths or a nice preponderance of credibility. And
it is difficult to impress them with the enormous weight which
attaches to the document itself as evidence of the animus with
which it was made. This weight it becomes the court to appreciate,
and to guard with jealousy the sanction of a solemn act.

In the present case, however, the court finds the evidence so
cogent, that it is prepared to act on the finding of the jury that
the codicil was executed as a sham and a pretence, never seriously
intended as a paper of testamentary operation. But I am far from
saying that the court will in all cases repudiate a testamentary
paper simply because a jury can be induced to find that it was not
intended to operate as such. The character and nature of the evi-
dence must be considered, as well as the result at which a jury have

ABSENCE OF ANIMUS TESTAXDT. 253

arrived, and the court must be satisfied that it is sufficiently cogent
to its end. Iu this case the court is so satisfied, and it therefore
pronounces for the will, and against the codicil ; the costs to be
paid out of the estate.

[In Sewell v. Slingluff, 57 Md. 537, the will, absolute on its face,
was duly executed, and was intended, as shown by the oral decla-
rations of testatrix, to take effect on one contingency, but on another
contingency not to take effect. ISTo such oral arrangement can be
shown, and such a will takes effect in any event upon testator's
death.]

ABSENCE OF ANIMUS TESTANDI.
Nichols and Nichols by their guardian v. Nichols.

Prerogative Court op Canterbury, 1814.
(2 Phillim. 180.)

Application for probate.

The widow opposed the validity of the testamentary paper and
prayed the court to pronounce for an intestacy.

Judgment.

Sir John Nicholl:

This is a case under singular circumstances — the deceased died
in January, 1813, leaving a widow, and two children by a former
wife — the will is in these terms:

"I leave my property between my children; I hope they will
be virtuous and independent; that they will worship God, and
not black coats.

"July 30, 1803. "Thomas Kictols.

" Witness Thomas King."

It is proved and admitted that this paper was written and signed

by the deceased, and that he was of sound mind at the time; but
Thomas King,a aubscribed witness, gives the following accounl oi
the transaction :

"The deponenl Ie steward to Sir Charles Mill, whose solicitor
the deceased was he know him intimately for twenty yeare
when they had any business to transacl together, it was their cus-
tom to dine al the house of each other. On the 30th of July,

25)4 EXECUTION.

1S03, the deceased dined with the deponent — after dinner they
adjourned, as usual, to the deponent's book-room, where they drank
their wine, which never exceeded a pint each, with, perhaps, a
glass or two of white wine. The deponent and the deceased used
to talk familiarly with him on many subjects — he was in the habit
of ridiculing the tautology of lawyers, who, he said, employed a
vast number of unnecessary words — that having finished their wine,
the deponent took from a drawer a paper which he had drawn up
as his will ; and, shewing it to the deceased, said something ridicul-
ing lawyers spinning out papers, and asked him if it was not as
good a will as if it had been spun out to a great length by a law-
yer — the deceased replied, not only a valid will, but a devilish
good one ; and, asking for pen and ink, took a sheet of paper, and
writing the paper propounded, threw it towards the deponent,
saying, very carelessly, there, that is as good a will as I shall
probably ever make. 1 These he recollects to have been the very
words spoken — he did not request the deponent to take care of the
paper, or say another word about it— or, from that time to his
death, ever allude to it — and the deponent verily believed that he
never recollected that such a paper was in existence — a very short
time afterwards the deceased shook hands with the deponent,
and went away, leaving the paper on the table. When the de-
ceased was gone, the deponent wrote his name as witness to the
signature (he was not requested by the deceased so to do) ; he
then folded up the paper, wrote on the back ' the will of Thomas
Nichols, Esq., of Southampton, July 30, 1803 '; and put it into his
iron safe, where it remained, with many other loose papers, till
after the deceased's death. The deponent does not believe that
the deceased, when he wrote the paper, intended to make his will,
or that such paper should ever operate as such ; but he always
considered, and does still think, that it was written without any
other view than in imitation of the paper the deponent had so
shewn him — a copy of which he annexed to his deposition, and
to shew the deponent he could exceed him in brevity — and the
deponent is confirmed in this opinion by the practice of the de-
ceased on other occasions ; the deponent being in the habit of

' At the date of this will, and long afterward, wills of personal property, very
informal in point of execution, were often allowed, in England, attestation and
signing by witnesses not being essential. 1 Wms. on Exrs. 84, 85.

ABSEXCE OF ANIMUS TESTANDl. 255

drawing specimens of leases, and other instruments, wherein very
few words were used, which he shewed to the deceased ; and he,
upon such occasions, uniformly wrote others still shorter, by way
of shewing that he could exceed him in brevity. The deponent
never considered the paper as the deceased's will, but as the de-
ceased's specimen of a short will ; and as such he signed his name
as a witness to it, and endorsed it, and put it in his iron safe, lie
further saith, that his intimacy with the deceased continued till
his death in January last — that, during his illness, he visited him
about once a week for five weeks together — upon those occasions,
not considering the aforesaid paper as intended as a will, and un-
derstanding from the deceased that he had made no will, he was
very urgent with him to make a will — the deceased's answer to
such application being, that he did not know but that the law would
make a better will, or as good a will, for him as he could make —
but the deponent and others having pressed him to make a will,
the deceased did at length, shortly before his death, say, that when
lie got a little better he would, to satisfy his friends, make a will ;
but this he did not live to do — he grew worse daily — that the de-
ponent never alluded to the paper writing, for he had himself for-
gotten that such a paper was in existence."

The same witness, in answer to an interrogatory, says, " that a
few days after the death of the deceased, Sarah Nichols, his widow,
told the respondent she could find no will; and asked nim, as he
was the confidential friend of her husband, if he had left a will in
hi- hands. He replied, No, he never left any will with me; but
added that, if it would give her any satisfaction, he would search
his papers, which she requested he would do, saving, that she con-
cluded from the intimacy that subsisted between them, if her hus-
band had left any will, with any one, it would he with the re
spondent. The respondent had then no thought of the paper in
question ; nor did the circumstances of the same having been writ-
ten occur to him. till, on turning out the various papers that were
in the safe, lie found it there — that the respondent thought BO
lightly of it when he went to Sarah Nichols, and shewed it her,
that lie slid, this is all I have got, and you may put it into the

fire. The respondenl doc- verily believe that the deceased de-
parted tlii- life without tin' least recollection of the paper being
in existence -thai the deceased and his wife lived on the 1-

256 EXECUTION.

terms together, and the greatest love and affection subsisted be«
tween them."

This is the account given by the only witness, whose name is
subscribed to the paper; and if this evidence can be received, and
is to be credited, this is not the will of the deceased, for it wants
the great requisite, the animus testandi ; it was not written with
the mind and intention to make a will. A question has been made
whether this evidence can De received. I am of opinion that it
can and must be received ; it is the evidence of the attesting wit-
ness, who must be produced, and whose testimony is common to
both parties. What credit may be due to it is another question.
A witness attests a will for the purpose of giving authenticity to
the factum of the instrument: the animus testandi is the very
point into which the Court of Probate is to enquire — the mere act
of witnessing or signing does not exclude, of necessity, the absence
of the animus testandi any more than the mere act of cancellation
excludes of necessity the absence of the animus revocandi. It
may have been signed under duress, or under other circumstances
when there was no intention to make a testamentary disposition.

The evidence is admissible, but is certainly to be received with
great caution, the paper being dispositive ; and the witness having
signed it must be heard with jealousy to depose against the effect
of his own act — it is true the attestation clause is not in the usual
form ; it is merely the word " witness "; but still that infers an
attestation of the act of the deceased ; and the witness must be
carefully heard by the court.

The evidence then being admissible, the next question is, Does
the court believe this account ? The witness is in a respectable
situation in life; wholly unimpeached in credit and character; the
confidential friend of the deceased ; and no possible inducement is
suggested why he should declare upon oath a false account of the
transaction — the account he gives, though whimsical, is neither
unnatural nor improbable ; the internal evidence of the paper
stronsrlv corroborates it, as do also the extrinsic circumstances — he
says the deceased wrote it in order to show in how few words a
will might be written — there is something of levity in the expres-
sion, "Worship God, and not black coats": it is in imitation of
one written by the witness ; his is in these words :

1 give and devise all my property, real and personal, to Mary,

ABSENCE OF ANIMUS TESTANDI. 25?

my wife, to be divided by her, as she shall think proper, between
all my children, either in Tier lifetime or by will (reserving enough
for her own comforts). I hope my children will obey thevr
mother, love each other, and be pious and virtuous; that they
worship God and not man, nor ever practise the trade of a
butcher, nor ever accept of any place in the navy or army. But
they will endeavour to plant and extend happiness, to raise cot-
tages for industry and honesty, and make the desert smile ic it 'h
plenty and innocence; that they will despise only those who
monopolize the earth for the gratification of their own luxury and
pride; and that they will look up to none as their superior but
those only who exceed them in good works ; and never treat any
of God's en atures with contempt but the proud and profligate ;
and never bend their knee but to thevr God. This is my will;
and I hereby appoint my wife sole executrix thereof. In 'wit-
ness, <&c, &c,

Signed, Thomas King.

Upon comparing the two instruments, I think the one a com-
pressed imitation of the other— the admonitory part in the one
occupies twenty lines ; in the other the same idea is given in more
concise words. It is an extremely strong circumstance that it
makes no alteration in the disposition the law would have made of
his property. For what purpose could lie have intended this
paper? In it there is no legacy, no executor, no guardian to his
children— this is a strong confirmation that it was not written
animo testandi, but for the purpose mentioned by Mr. King -
subsequent circumstances still more confirm this; the deceased
afterwards married he lived on terms of affection with his wile.

and he said he hud no will, that tin- law would mah u good will
for him so that it was his intention that his widow should possess,
after his death, tin; provision which the law would give her ;
during oone of these conversations does he make any allusion t<>
the existence of tlii- paper his forgetting it would not operate as

a revocation; hut it [fi a circumstance to shew th.it lie originally

never intended it a- a testamentary paper. There is little doubt

that when he threw it acrOS8 tin' table, he meant it should he put
into the tire.

With all the possible Caution thai the court can exercise where a

witness is deposing againsl his own act, I am jrel Eullv satisfied m

258 EXECUTION.

my mind and conscience that the deceased never intended this as
his will ; I, therefore, pronounce against it ; and decree administra-
tion to the widow, her husband having died intestate.

TESTATOR MUST UNDERSTAND THE WILL.— PRESUMPTION.

maxwell v. Hill.

Tennessee Supreme Court, 1891.
(89 Tenn. 584.)

Appeal from Circuit Court.

Caldwell, J. — This is a contested will case. In 1877, Elroy A.
Hill, wife of C. A. Hill, died at her home in Rutherford County.
At the time of her death she owned four tracts of land, and some
little personal property. She died without child, or representative
of a child, and without father or mother ; but left, surviving,
several brothers and sisters, and her husband. At the February
term, 1878, of the county court of Rutherford County, her
husband, C. A. Hill, presented a paper writing, which was admitted
to probate in common form as the last will and testament of Elroy
A. Hill, deceased. By this instrument, some small bequests, a
saddle, and her wearing apparel, were given to her sister Sarah
Maxwell and to her sister Eliza Haynes ; and the residue of her
personal estate and all her lands were given to her husband abso-
lutely. In April, 1888, Sarah Maxwell, a sister of Elroy A. Hill,
filed her petition in the county court to have the probate set
aside. C. A. Hill answered the petition ; and, proper order being
made, the alleged will and proceedings thereon were certified to
the circuit court, where issue of devisavit vel non was made up
and tried by court and jury. Verdict and judgment were for the
will ; and, motion for new trial being overruled, Sarah Maxwell
appealed in error.

The subscribing witnesses to the paper propounded as the will
were W. J. Hill and O. W. Hill, brothers of C. A. Hill. The
former of these died before the trial in the circuit court, and be-
cause of his death, his handwriting and signature were properly
allowed to be proved by other witnesses. Mill & V. Code, sees.
3012, 3018 ; Caruth Lawsuit (Martin's Ed.), sec. 612 ; Stump v.
Hughes, 5 Hayw. (Tenn.) 93 ; Den v. Mayfield, Id. 121 ; Crockett
v. Crocket, Meigs 95 ; Jones v. Arterburn, 11 Humph. 97; Har-

TESTATOR MUST UNDERSTAND THE WILL. — PRESUMPTION. 2.")9

rel v. Ward, 2 Sneed 611 ; Alexander v. Beadle, 7 Cold. 126.
C. A. Hill, the principal beneficiary under the alleged will, also died
before the trial, intestate, and without children or child, or repre-
sentative of either. O. W. Hill is one of his heirs ; hence, when
he went on the stand to prove the execution of the will as one of
the subscribing witnesses, his evidence was objected to by the con-
testant, on the ground of interest. His evidence was admitted,
and the action of the trial judge in that behalf is here assigned as
error. The witness was competent, and his evidence was properly
admitted. The statute relating to this question provides that " no
last will or testament shall be good or sufficient to convey or give
an estate in lands, unless written in the testator's life-time, and
signed by him, or by some other person in his presence, and by his
direction, and subscribed in his presence by two witnesses, at least,
mither of whom is interested in the devise of said lands." Mill
& V. Code, sec. 3003. O. W. Hill was manifestly not " interested
in the devise of" the lands of the testatrix, though made to his
brother. To have been so, in the sense of the statute, he must have
been a beneficiary under the devise. He had no interest in the
devise at the time he witnessed the will, nor has he any now. His
interest in the land now is as heir of his brother, and not as devisee
under the will. At that time he was not even heir of his brother,
for no one can be heir of a living person. This construction of the
statute is in accord with Allen v. Allen, 2 Overt. 172, and Walker
v. Skeene, 3 Head 1, 5.

p]lroy A. Hill was an illiterate person, and made her mark to
the supposed will. At the time it was executed, she was about 55
years of age, and in rather feeble health. Her husband was both
draftsman of the instrument and almost the sole beneficiary there-
under. A.8 applicable to these facts, in connection with what
occurred when the paper was executed, and before and afterwards,
the court instructed the jury as follows: "You must further be
satisfied thai -lie was fully apprised of the contents of the will ;
that it was read over to her, and that she understood the same;
also thai it was her free and voluntary act, (\-a' from fraud or
coercion on the pari of her husband. You must also find thai she
was of sound mind ami disposing memory at the time oi making

the will; thai -he knew her property, her relatives, and those
having claims to her bounty ; and had mind to intelligently dispO e

260 EXECUTION.

of said property. "When a beneficiary under a will is the drafts-
man of the will, it is a strong circumstance against it, and it
devolves upon the plaintiff to show that everything was fair and
free from fraud and undue influence. 1 When a party makes his or
her mark to a will, it is not enough to show that the will was duly
executed, but it must also be shown that the testator was fully cog-
nizant of the contents of the will, and approved it." Appellant
assigns error on this charge, and insists that it is fatally defective,
because the jury were not told that " information acquired from
the draftsman in such a case as this is not sufficient," and that,
under the circumstances of this case, the proof should be equivalent
to having heard the will read over by a disinterested person. In
ordinary cases, when the testator is shown to be of competent
capacity, and there are no circumstances of suspicion surrounding
the case, it is not necessary to establish by proof that he had
knowledge of the contents of the will. Such knowledge will be
presumed where formal proof of execution and testable mind are
shown, and no opposing facts appear. Cox v. Cox, 4 Sneed 87 ;
Bartee v. Thompson, 8 Baxt. 513 ; Patton v. Allison, 7 Humph.
332 ; Rutland v. Gleaves, 1 Swan 200 ; 1 Greenl. Ev., sec. 33 ; 1
Jarm. Wills, 46. But where the person making the will is so
illiterate as to make his mark, and the draftsman of the will is the
principal beneficiary, the presumption of knowledge is overcome,
and more proof is required to establish the will. Such circum-
stances cast a suspicion on the will, and it becomes incumbent on
the proponent to remove that suspicion by showing affirmatively
that the testator fully understood the provisions of the will, and
fully approved them. Such is the rule deducible from the follow-
ing authorities : Patton v. Allison, 7 Humph. 332-335, and cita-
tions ; Rutland v. Gleaves, 1 Swan 200 ; Bartee v. Thompson, 8
Baxt. 513 ; Key v. Holloway, 7 Baxt. 575 ; Wisener v. Maupin,
2 Baxt. 342 ; Cox v. Cox, 4 Sneed 87 ; Watterson v. Watterson,
1 Head 2. In Rutland v. Gleaves, supra, the testatrix was old
and feeble, and had for several vears been addicted to the excessive
use of opium and ardent spirits. The will, which was complicated
in its provisions, was read to her, partly by the witness, and the
balance by another person, who was the principal legatee, after
which the latter held her hand, and she made her mark to it.

1 Compare, on this point, Post v. Mason, given ante.

TESTATOR MUST UNDERSTAND THE WILL. — PRESUMPTION. ^61

" The court, among other matters not excepted to, instructed
the jury that if they believed the will was read to the testatrix cor-
rectly, and that she was of sound mind, the legal presumption
would be that she understood its contents." This instruction was
held to be erroneous, because it precluded the jury from consider-
ing all the facts and determining from them whether or not the
testatrix understood the contents of the will. 1 Swan, 200. In
the 7 Humph, case the court told the jury "that, when a party
writes a will in his own favor, this circumstance should awaken
the vigilance and jealousy of the jury to see whether a knowledge
of its contents was brought home to the deceased, for in such case ;
it is incumbent on the propounder to show that the contents
were known to the testator." This was held to be a correct state-
ment of the law. 7 Humph. 332. In Cox v. Cox the testatrix
was shown to be so illiterate that she could neither read nor write.
She was also very old when the will was executed, and was by the
witness -eon to " make her mark " to it. As to the rule of evidence
in such a case this court said : "The existence of the fact that the
testator cannot read, the law regards as a circumstance not only
sufficient to excite suspicion, but to repel the presumption of
knowledge of the contents of the will. It may be of more or less
force, according to the facts of each particular case, and the degree
of proof requisite to remove such suspicion, and to establish the
knowledge of the testator, must necessarily depend upon the cir-
cumstances of each case. All that in reason can be necessary is
that it .-hall be made to appear, to the entire satisfaction of the jury,
that the testator fully understood and assented to the provisions of
the will."' 4 Sneed, 88. In the Watterson case the testatrix was
unable to write or read writing. She had two sons. One of these
wrote the will by which almost her entire estate was given to him-
self. Judge Caeuthers, delivering the opinion of the court, said
there were two ground- of suspicion and distrust: The illiteracy
of the testatrix; and the fact that the will was written by the
principal legatee. And in the conclusion of his discussion of the

charge of the trial judge, with respect to the evidence required in

BUCh a ca86, he OSes this language: " Bui we think there is DO

inflexible rule of law that the knowledge of the contents, which is
required to he established in tin' case of persons who cannot read,

or where the writer of the will get.- a large benefil under it, can

262 EXECUTION.

only be derived from hearing the will read, to be proved either by
direct or circumstantial evidence ; but all that is necessary is that
it must appear to the full and entire satisfaction of the jury
that the testator fully understood and fully assented to the pro-
visions of the will. This fact, as to the kind and description of
proof, may be made out like any other disputed fact. But, in
case of this description, the strength and conclusive character of it
must depend upon the degree of suspicion which the circumstances
are calculated to excite, and should be strong and convincing, —
equivalent, at least, to the reading of the will, or hearing it cor-
rectly read." 1 Head, 6, 7. None of these cases, nor any other
authorities of which we are aware, warrant the instruction which
appellant insists should have been given. The headnote in the
Watterson Case is misleading in that it states that the evidence of
the testator's knowledge, in suspicious cases, shall be "equiva-
lent, at least, to having heard the will read by a disinterested and
unimpeachable party," when the language of the opinion is that such
evidence should be " equivalent, at least, to the reading of the will,
or hearing it correctly read." A party who is neither disinterested
nor unimpeachable might " correctly read " the will. Whether
he has done so in a given case is a question for the jury. In all
cases of illiteracy on the part of the testator, and of great benefit
to the writer of the will, the controlling idea, beyond the ordinary
proof of formal execution and testable capacity, is that the testator
must have fully comprehended the provisions of the will and fully
given his assent thereto. To show this affirmatively the burden is
upon the proponent. It may be shown by any competent evidence,
direct or circumstantial, which is sufficient in weight and cogency
to remove all suspicion and satisfy the jury of the fact.

The instruction given in this case comes fully up to the rule in
every respect. Summarized on this point, it is that to find in fa-
vor of the will the jury must be satisfied that the testatrix was
fully apprised of its contents. " That it was read over to her, and
that she understood the same"; that she "was fully cognizant of
the contents of the will, and approved it." Not only was the
charge given full, and as favorable to the contestant as it could
have been within the law, but the instruction suggested for the
first time in the assignment of errors is not sound. But if the
charge were not full (being correct as far as it goes), and the in-

TESTATOR MUST UNDERSTAND THE WILL.— PRESUMPTION. 263

struction suggested were entirely sound, the failure to give it
would not be reversible error. To be so, it must have been asked
in the form of an additional instruction in the court below. Mere
meagreness in a charge is not ground for reversal. Sutherland v.
Shelton, 12 Ileisk. 375; Railroad Co. v. Jones, 9 Heisk. 27;
Overton v. Bolton, Id. 762 ; Sommers v. Railroad Co., 7 Lea 201 ;
Railroad Co. v. Gurley, 12 Lea 46 ; Mayor, etc. v. Bell, Id. 157 ;
Oil Works v. Bickford, 14 Lea 651; Railway Co. v. Wynn, 88
Tenn. 332, 14 S. W. Rep. 311 ; Railway Co. v. Foster, 88 Teun.
671, 13 S. W. Rep. 694, 14 S. W. Rep. 428 ; Railway Co. v.
Hendricks, 88 Tenn. 710, 13 S. W. Rep. 696, 14 S. W. Rep. 488 ;
Watterson v. Watterson, 1 Head 6 ; Mann v. Grove, 4 Heisk. 403 ;
Railroad Co. v. King, 6 Heisk. 269.

Finally, it is assigned as error, and contended in argument that
" there is no testimony in the record to justify the finding of the
jury." Several witnesses say they heard the testatrix state, at nu-
merous times before the execution of her will, that she desired
her husband to have her land for life, with remainder to her
brothers and sisters. Others state, with equal certitude, that they
heard her say, before the date of the will, that she wanted him to
have it absolutely, and did not want her "folks" to have any in-
terest in it. Some of the witnesses testify that she told them, af-
ter its date, that she had made her will, giving her property to her
husband. That he was kind and affectionate to her is sufficiently
shown. There is some evidence tending to show that she was not
OD good terms with her own people, and that they had been un-
kind to her, and, on the other hand, there is evidence tending to
show that this is not true. Her declarations were competent to be
considered by the jury in determining whether she fully compre-
hended and approved the will as written.' Headles v. Alexander,
!t Baxt. 604 : Linch v. Linch, 1 Lea 526. If it be found that she
did, then, of course, the will and not her verbal statements must
Control the course of Imt property. We notice, more in detail, the

testimony of < >. W. Bill, one of the subscribing witnesses. He
says: --I went to her house, and went in. Her husband was out

Of the room. She picked up a paper and said it was her will, told

1 Compare the casea given ""/<■ "" " Declarations," and Bee Index under the
game head.

264 EXECUTION.

me she had signed it, and showed me her mark. She said she had
willed my brother everything she had except side-saddle and some
clothing. I witnessed the will. This is the will [being shown
the original will on file]. When I first went there she was in the
house. My brother Rit. [C. A. Hill, her husband] came in after
I got there, before I witnessed the will. He took the will up and
read it in the presence of myself and Elroy Hill, at my request. I
never sign anything without having it read. The will read over
was the same as what she had told me. I know C. A. Hill's hand-
writing This will was in his handwriting. I said to her that it
looked like some one else ought to have written it. She said my
brother always done her writing and could do that. He did writ-
ing for her both before and after they were married," etc. If this
witness speaks the truth [his credibility was peculiarly a question for
the jury], there can be no doubt that the testatrix understood and
approved the will. She told him before it was read in their joint
presence what it contained, and when he heard it read he found it
the same as she had previously told him it was, and, when the will
is produced in court, it is seen to be what she told him it was, and
as it was read to them by the defendant. Altogether, the verdict
is abundantly sustained. Let the judgment be affirmed, with

costs.

[Concerning the presumption, arising from apparently regular ex-
ecution, that testator knew the contents of the will, see also 1 Wins.
on Exrs. 350, note (x) ; Beall v. Mann, 5 Ga. 456 ; Smith v. Dolby,
4 Harring. 350 ; Hoshauer v. Hoshauer, 26 Penn. St. 404.]

IV. REQUEST TO WITNESSES TO SIGN.

In some States the witnesses must be requested by the testator
to sign. 1 In others this is not required in terms by the statute, 8
but presumably, even in that case, they must sign with his assent
and knowledge. 3 Even where a request is essential, it need not
be made in so many words. . Any act or conduct on testator's

i 2 N. Y. R. S. 63, sec. 40, subd. 4, Birdseye's Ed. 3343, sec. 8, subd. 4; Cal.
Civ. Code, § 1276; Ark. Dig. sec. 6492.

2 Ayres v. Ayres (N. J.), 12 Atl. Rep. 621.

3 Allen's Will, 25 Minn. 39.

IMPLIED REQUEST TO WITNESSES. 265

part at the time that clearly constitutes a manifestation on his
part of a desire to have the witnesses sign, will suffice. 1

Illustration.

Amos Knox, the testator, signed the will in presence of the
witnesses. Colin, the draftsman, and a witness then said, in the
presence of testator and witnesses, that " it was necessary that tes-
tator should request us to sign as witnesses, and therefore I said
that that was Mr. Knox's will, and he wished us to sign it as
witnesses." The testator made no dissent, and when the wit-
nesses had signed the will he took it into his possession and
thereafter retained it. This constituted a valid " request.

55 3

IMPLIED REQUEST TO WITNESSES.
Coffin v. Coffin.

New York Court of Appeals, 1861.
(23 N. Y. 9.)

Application for probate of an instrument purporting to be the
last will and testament of Trustrum Coffin, deceased. The sur-
rogate of Dutchess County refused probate, and his decision was
affirmed at General Term in the second district. Appeal to the
( lourt of Appeals.

Several objections to the will were urged by the contestants.

Com stork, ( 'h. .]. [After disposing of other objections and
finding them insufficient.]

In the next place, as to the attestation. The statute requires
two witnesses, each of whom must sign his name at the end of
the wdl, at the request of the testator. Confining ourselves to
the evidence of these two witnesses, the facts appear to be these:
They were present at the testator's house on the day in question,
by Ins own procurement, and for the purpose, as there is reason
to believe, of witnessing his will. When the instrument was
ready for execution and attestation, they were summoned to the
room where the matter was transacted. They came there, saw
the testator subscribe his name, and signed their names as wit-

1 Peck v Cary, 27 X V. it. Coffin v. Coffin, '-':: \ r . Y.9; Biggins v Carlton,
2s Md. it", niii. Estate of Crittenden, Myr. Prob. R.(Cal.)60j Rogers v.
Diamond, 18 \>i. 174.

3 Gilbefl v Knox. 52 \. V. 126

266 EXECUTION.

nesses. Before doing so, one of them asked the testator if he
requested him to sign the will as a witness ; to which he answered
in the affirmative. Both the witnesses then proceeded to sign ;
the draftsman denoting the place where their names were to be
written. The testator, the draftsman, and the witnesses were all
at one table, and in close proximity to each other. The request
to attest the will was in answer to the question thus put by one
of the witnesses, and no other or different communication was
made to the other. Taking this as substantially the true state-
ment of the facts, the objection which has been urged is, that one
of the witnesses attested the instrument without any request made
by the testator. Now, the statute, it is true, declares that each
witness must sign on such request. But the manner and form in
which the request must be made, and the evidence by which it
must be proved, are not prescribed. We apprehend it is clear
that no precise form of words, addressed to each of the witnesses
at the very time of the attestation, is required. Any communi-
cation importing such request, addressed to one of the witnesses
in the presence of the other, and which, by a just construction of
all the circumstances, is intended for both, is, we think, sufficient.
In this case both the witnesses, by the direction or with the
knowledge of the testator, were summoned to attend him for the
purpose of witnessing his will. They came into his presence ac-
cordingly, and in answer to the inquiry of one of them, in which
the singular instead of a plural pronoun was used, he desired
the attestation to be made. In thus requiring both the witnesses
to be present, and in thus answering the interrogatory addressed
to him by one of them, we think that he did, in effect, request
them both to become the subscribing witnesses to the instrument.
Any other interpretation of his language, and of the attending
circumstances, would be altogether too narrow and precise.
[Here the court consider and overrule one other objection.]
On the whole, we are of opinion that the judgment of the
Supreme Court and the sentence of the surrogate must both be
reversed, without costs of the litigation to either party, and the
proceedings remitted to the surrogate, with a direction to admit
the will to probate. 1

1 Also Lane v. Lane, 95 N. Y. 494.

ATTESTATION AND SIGNATURE BY WITNESSES. 267

Zott, J., took no part in the decision ; all the other judges eon-

rring.

Ordered accordingly.

curnng

V. ATTESTATION AND SIGNATURE BY WITNESSES.

As a general proposition our statutes require that the will must
be signed by attesting witnesses. The statutes vary very much,
however, among themselves, and the statute in question must in
every given case be consulted. There are, nevertheless, certain
leading requirements which are to be found in all or many of the
statutes, and these will now be taken up in order. And in the
first place attention may be called to the distinction between attest-
ing and signing. " Attestation is the act of the senses : subscrip-
tion [or signing] is the act of the hand." '

(1). SIGNING.

The usual and appropriate method is of course for the witness
to write out his name. But as in the case of a testator, other
methods, intended to effect what shall stand for or represent a sig-
nature, will suffice.

Illustrations.

(a). Signature by mark.— A witness signed by making a mark.
This was sufficient. 2 The fact that a mistake is made in the name
written around the mark, as " Elizabeth Cummins " for u Elizabeth
Sharpe," does not invalidate it. 3

(h). Signature by 'Inscriptive term. — At the execution of the
will of Charles R. Sperling, the solicitor directed one of the wit-
nesses. Thomas Saunders, to sign "as servant to J\lr. Sperling."
He accordingly, misunderstanding the direction, wrote not his
name, bul merely the words "servant to Mr. Sperling." Be in-
tended the words for a signature. Sir J. P. Wilde: "1 thini
there is a Bufficienl attestation and subscription. I am satisfied
that Saunders wrote the words which appear on the will, intend-
ing thereby an identification of himself as the person attesting."

1 Swift v. Wiley, 1 B Mon. (Ky I 144

• Prldgen v. Pridgen, 18 [red L. (V C.) 859.

' in (J...., is of Aehmore, 8 Curt. 756.

i I,, Goods ol Sperling, 8 Bw. & Tr. 272.

268 EXECUTION.

(c). WRONG NAME.— WHEN NOT SUFFICIENT.
Ex parte Leroy.

Surrogate's Court, New York County, New York, 1855.

(3 Bradf. 227.)
Bradford, S. — The will propounded for proof, reads as fol-
lows :

February 23<f, 1855.

All my money and property belong to my wife and children.
My last will. Louis Lerot.

Before John Bowers.
John Bowers.

It appears that Charles Bowers, the son of John Bowers, wrote
this paper at the request of the deceased, and then signed his
father's name as a witness, because the latter could not write very
well, and he did not suppose he was going to sign. The father,
however, did subscribe his own name. Charles was not requested
to become a witness, and did not, in fact, sign his own name, not
supposing more than one subscribing witness necessary. The
statute requires each of the attesting witnesses to " sign his name
as a witness." Charles did not sign his name, and the signature of
his father's name cannot be taken as a substitute. It is not a case
of mistake, there having been no intention to have more than one
subscribing witness. I think, therefore, the execution was de-
fective, and that the will must be rsjected.

(d). Intention necessary to signature. — A witness wrote his full
name, Fred. Wm. Nap. Wilson. It was admitted that this signa-
ture itself was made at the wrong time, and did not count as a
valid signing. Reliance was placed on the fact that thereafter the
testator duly acknowledged his will and signature in the presence
of Wilson and another witness, Dr. White, that the latter signed his
name, and that then Wilson, noticing that he had failed to cross
the F in his first name, when writing it before, crossed it and
added the date. It was claimed that crossing the F constituted a
signature. But it was held not so. A mark, to constitute a signa-
ture, must be intended as such. Here it was only intended to cor-
rect an error in the former writing, and was not meant as a new
signature. 1

1 Hindmarsh v. Carlton, 8 H. L. C. 160.

SIGNATURE BY INITIALS. 269

(e). SIGNATURE BY INITIALS.
In tbe Good§ of Hood Blainvay Christian, Esq., deceased. 1

Prerogative Court op Canterbury, 1849.
(2 Roberts. 110.)

H. H. Christian, Esq., a Rear Admiral in the Royal Navy, died
on the 31st Aug., 1849, leaving a will and a codicil bearing date
the 11th February, 1818. The will was signed by the testator and
the witnesses in the usual form. Immediately after execution a
short codicil was added and duly signed by the testator, and to this
the witnesses signed their initials only.

Judgment.

Sir Herbert Jenner Fust :

I have before me the affidavit of one witness only ; in such an
extraordinary case all the witnesses ought to have joined. The
attesting witnesses to the so-called codicil have affixed their
initials only ; however, I have no doubt in the matter, though I
believe this is the first instance under the act of the witnesses so
signing. I am not aware that the witnesses can be required to
sign their names ; 2 I am of opinion that there is a sufficient sub-
scription on their parts, and therefore I decree probate as prayed.

if). Subsequent acknowledgment by witness. — As a general prop-
osition, the signing by the witnesses must be complete and suffi-
cient in itself when made, and subsequent acknowledgment of
their signatures by the witnesses will not suffice. 3 But in some
jurisdictions a subsequent acknowledgment may establish them as
sufficient. 4

((/). Signing personally or by (mother.— In some States, wit-
nesses must sign their names personally, and cannot delegate an-
other to sign for them." While in others they may request an-
other to sign for them, and do no manual act themselves, and this

may suffice.

1 To the same point, Jackson v. Van Dusen, 5 Johns. (N. Y.) 144.
? Compare the New York Statute, given in Appendix, />ost.

Matter of Downie's Will, 42 Wis. 66.
1 Sturdivant v. Birchett, 10 Gratt. (Va.) 67.

Duffle v. ( lorridon, 10 (Ja. 122, based on an express provision of the statute.

Lord v. Lord, 58 N. II. 7: Upchurch v. CTpchurch, L6 B. Mon. (Ky.) L02;
Je e ■ Parker, 'J (Jratt. i 7a.) . r >7.

270 EXECUTION.

(h). BOTH SIGNATURES WRITTEN BY ONE WITNESS
Matter of Strong.

Surrogate's Court, Westchester County, New York, 1891.
(39 N. Y. State Rep. 852.)

Proceeding for probate of an instrument purporting to be the
will of Eliza Strong, deceased. The names of two persons as at-
testing witnesses were subscribed to the will, but the evidence
showed that one of the witnesses wrote his own name, and also
that of the other witness, at her request. She was temporarily
unable to write herself on account of a felon on her right hand.

Coffin, S. — The question as to whether the alleged will was
sufficiently executed according to the requirements of our statutes
on the subject, inasmuch as the names of both witnesses were
written solely by one of them, is alone presented for adjudication.
In this respect it will be seen that while the statute requires that
the will shall be " subscribed " by the testator at the end of the
will, it also provides that "there shall be at least two attesting
witnesses, each of whom shall sign his name as a witness at the
end of the will at the request of the testator."

Thus there is a change from the word " subscribed," as applied
to the act of the testator, to the words " sign his name," as applied
to the act required of the witnesses. "Whether it was intended by
the legislature to treat the words " subscribe " and " sign " as synon-
ymous is fairly open to question. If it did not so intend, why
did it not use the same word in each instance? The word "sub-
scribe," according to the best lexicographers, is to write under-
neath, while " sign " is defined to affix a signature to. And it was
held in the English courts that the word sign, as used in the statute
of frauds, was sufficiently complied with if the party wrote his
name on the paper in any place, so that even if he commenced by
writing, " I, John Jones," and wrote his name in no other place,
it was held a sufficient signing within the statute ; but the word
subscribe clearly means a writing at the end or foot. And, while
they have given a very liberal, if not loose, construction of the
word " sign," in so far as the statute of frauds affecting contracts
was concerned, yet in the case of wills, where the witnesses are re-
quired to subscribe as such, they exact some physical act to be done
by the witnesses, either by writing their own names or making

BOTH SIGNATURES WRITTEN BY ONE WITNESS. 271

their marks. Moore v. King, 3 Curteis 243 ; 1 Jarm. on Wills,
Randolph & Talcott's ed. 215. But that statute expressly per-
mitted the signature of the testator to a will to be made by some
other person in his presence and by his direction. The 1 K. L,
364, allowed the same thing. Under these statutes it was held
that the signature of the testator or of the witnesses by making a
mark was sufficient. Baker v. Dening, 8 A. & E. 94 ; Jackson
v. Van Dusen, 5 Johns. 144. Many other and more recent cases
establish the same principle. But the question still remains, is the
name of one or each of the witnesses, written by another, a sum",
cient compliance with the requirement of the statute ? In the
Goods of John White, 2 Notes of Cases 461, it appeared that a
husband, a witness, signed not only his own name, but also that of
his wife, the other witness. There was no evidence that the wife
had, in fact, become a party to the subscription, and the execution
was held to be insufficient. Here, however, the wife was present as a
witness, and because of her temporary disability to write her name,
requested her husband to write it for her, which he did. All this
occurred at the time of the execution of the will by the testatrix
and in her presence, and although the latter did not also request
the husband to write the wife's name, yet by her silence she sanc-
tioned the act.

Surrogate Bradford, eminent for learning and industry, seems
to have inclined to the opinion that an attesting witness must
take some physical part in the act of signing, in order to a com-
pliance with the statutory requirement of signing his name.
Campbell v. Logan, 2 Bradf. 90-97; Median v. Rourke, Id. 385-
392. This is probably in accord with the tenor of English deci-
sions on the subject, with some few exceptions ; but while the
precise question lias not, so far as known, been determined by
the courts of this State, yel in b e of our sister States a subscrip-
tion by a witness in the manner it was done in this instance has

been held sufficient. In Massachusetts, in the case of Chase v.
Kittredge, 1 Allen H> r>9, CI ray, J.,savs: l> A subscription of the
name <»r mark of a witness by another person iii the presence of
himself and the testator might possibly be a literal compliance
with the Btatute; but no! being in the handwriting of the wit-
ness, would create no presumption of a lawful execution and
attestation without affirmative evidence thai it was so made."

272 EXECUTION.

Here we have such affirmative evidence. See, also, ITorton v.
Johnson, 18 Ga. 396. In Upchurch v. Upchurch, 16 B. Mon. 102
(Kv.), and in Jesse v. Parker, 6 Gratt. 57 (Va.), it was expressly
held that such a signature of the witness' name as occurred in this
instance was a sufficient execution under a similar statute. In the
latter case, we have represented the singular fact of a will being
sustained where the body of the will, the name of the testator, of
the three witnesses required in that State, were all in the hand-
writing of one person. As was well said in that case : " Where
the attestation is by mark, the validity of such an attestation does
not depend upon the fact of the witness making his mark, or do-
ing some manual act in connection with the signature, but upon
the signing of the name of the witness by his authority."

The maxim, qnifacit per alium facit per se, has, doubtless, its
limitations; but it is difficult to discover why it is not applicable
here. The frauds in the execution of wills which the statute was
designed to guard against will in no way be facilitated by the
sanctioning of this mode of execution. Still, where we consider
that the art of writing" is so common that there can be little trouble
in finding witnesses who can write their names, it is desirable
that wills should be witnessed by such persons, especially in view
of the fact that should they make their mark, or sign by the hand
of another, and they should predecease the testator, there would
be no possibility of proving their handwriting, and then the will
could not be admitted to probate, unless other persons should
chance to be present who could testify to the facts. For the stat-
ute provides that in case the witnesses be dead, the will may be
established by proof of the handwriting of the testator and of the
subscribing witnesses. (Code, sec. 2620.)

At first my impression was that the execution of this will was
insufficient ; but a further examination of authorities and subse-
quent reflection have led to a different conclusion. It is, there-
fore, held to be a valid will, in so far as its execution is con-
cerned.

(2). POSITION OF THE SIGNATURES.

Some statutes require the witness to " sign," some to sign at
the "foot," or "end," some to " subscribe." Accordingly, the
decisions on what shall constitute a valid signature, as concerns
its position on the instrument, vary.

WHERE POSITION NOT SPECIFIED BY STATUTE. 273

(a). Where the position is not specified by statute.
In the Goods of Braddock.

High Court of Justice, Probate Division, 1876.
(1 P. D. 433.)

Mary Ann Braddock, late of Liverpool, in the county of Lan-
caster, widow, died on the 9th of February, 1876. Her will had
been executed in 1864, and was on one side of one sheet of paper.
On January 25th, 1876, she made an erasure and interlineation in
the will, and also wrote a codicil on a separate and smaller piece
of paper. This was attached to the will with a pin. She duly
executed this codicil in the presence of the witnesses, and at her
request one of them wrote on the bach of the original will, the
words : " Also signed this day in the presence of each other,
January 25th, 1876," below which the witnesses then signed their
names in her presence.

(J une 27.) Sir J. Hannen (President). — In this case the wit-
iu.-ssi's, instead of attesting the signature of the testatrix on the
paper itself, attested on the back of the original will, to which
that paper was attached by a pin. The law does not require that
the attestation should be in any particular place, provided that
the evidence satisfies the court that the witnesses in signing their
names had the intention of attesting. But the attestation, if not
mi the same sheet of paper as the signature of the testator, must
l)e on a paper physically connected with that sheet. No particular
mode of affixing one piece of paper to another is prescribed by
law, and I cannot say that the fastening of two sheets of paper
together by a ]»in is an insufficient mode of connection, or that it

is less effectual than the lawyer's mode of fastening by tap''.
II, re I am satisfied by the evidence that the papers were con-
nected together, and that in writing their oames on the back of
the original will, the witnesses intended to attesl the signature of
the testatrix at the foot of the codicil. Thai codicil, being duly
executed, confirms the will in itsaltered Btate,and probate will go
accordingly.

274 EXECUTION".

In the Goods of Wilson.

English Court op Probate, 1866.
(L. R.1P.& D. 269.)

The will of John Wilson, of Sheffield, ended at the bottom of
the first page thus :

" John Wilson.
Witness, William Hatton."

At the top of the next page were these words :

" Leasehold property.

A cottage situate in George-street, in the parish of E , in

the county of York ; " and beneath were three signatures :
" Win. Parker,

Benjamin F. Littlewood,
William Darley."

Only one witness, Littlewood, testified at the hearing, the others
having died. His memory of the circumstances attending execu-
tion was very indistinct.

Sir?/. P. Wilde. — ... It is said that the position of the names
of the witnesses is immaterial, provided they are in such a posi-
tion as to show that they were placed there for the purpose of
attesting the will. In considering whether persons have sub-
scribed a will as attesting witnesses the position of the signatures
may be most material. 1 If they are written under an attestation
clause no difficulty arises, but if they are placed elsewhere their
position may be important, because if they are placed under a
particular clause or statement the inference is that prima facie
they were put there to give effect or to testify to the words of the
clause or statement. ... If these names appeared at the top of
the page it might have been supposed that they were put there for
the purpose of attesting the will. But we find this memorandum
and these names written under it, very probably because they are
to become trustees of the property to which the memorandum
relates. They probably signed for the purpose of giving their
assent to the acceptance of the trust ; but whatever may have
been their motive for attesting the memorandum, it does not ap-

1 Dodworth v. Crow, 1 Dem. 256.

SIGNING IN PRESENCE OF TESTATOR. 275

pear that they were placed there in order to attest the deceased's
signature to the will. ... In reality this witness adds little light
to the transaction, and does not contradict the obvious circum-
stances as they appear on the face of the paper. I must refuse
probate of the paper.
Probate refused.

(b). Where the position is specified by statute.

1. Iii Kentucky, for instance, the witnesses must " subscribe." '

2. In New York, for another instance, the witnesses must sign
their names " at the end of the will." 2

3. Below testator's signature was a written assent to the provi-
sions of the will, signed by testator's wife. By mistake one of the
witnesses, intending to witness merely the execution of the will,
sisrned his name below this assent instead of above it. It was
held a good " subscription." 3

4. Even where the place of signing is designated, as well as
in cases where mere "signing" is required, the exact position of
the signatures in a given case may of course be evidence on the
question whether they were in fact intended as an attestation. 4

(3). IN THE PRESENCE OF THE TESTATOR.

Nearly all the statutes of wills require the witnesses to sign in
the " presence" of the testator. 5 The determination of just what
this word "presence" means has in many reported cases proved
verv perplexing. We will first give a number of illustrations
drawn from actual cases, and then state what appears to be the

correct rule.

Illustrations.

(a). Wvatt Cater, the testator, was, at the time of the subscrip-
tion by the witness, in a state of insensibility. Lord Mansfield:
•• All the wit knew, at the time of the attestation, thai the

1 Soward v Boward, I Duv. 126.
• \ V. R. s. 63, Bee. 40, subd. 1. Birdseye'a Ed. j>. 8848, sec 8, Bubd. 4.
Potts v. Pelton, 70 End. L68
' Dodwortb v. Grow, l Dem. (N. F.)256. In Goods of Wilson, given ante.
In \cw fork the witnesses hit not required by the statute to sign in tea-
t;it , ,,,,, Rudden v. McDonald, I Bradf. B52; Vernam v. Spencer, 8

Bradf. L6.

270 EXECUTION.

testator was insensible. He was a log, and totally absent to all
mental purposes." Buller, J. : " The attestation in the testator's
presence is as essential as his signature, and all must be done while

he is in a capacity to dispose of his property Here the

trunk remained but the man was gone." '

(b). Will of Alanson Allen. Cornell, J.: "Neither is it im-
portant to determine whether the testator actually saw the sub-
scribing witnesses subscribe their names as such, as it is quite
clear, both from the evidence and the findings, that it was done
in his immediate and conscious presence, and that he could have
seen it, if he had felt so disposed." 2

(b). W. W. Walker, the testator, was lying in bed, when the wit-
nesses signed, and was "facing west." The witnesses signed on a
table " east and back of testator." He had the physical ability
to turn his head and see them sign had he chosen to do so. The
signature was held to have been in his presence. 3

(d). Testator lay in bed, with his back to the witnesses, unable
to see them sign or to turn himself over. Their signing was held
not to have been in his presence. 4

(e). Patrick Persse, the testator, executed his will while sick in
bed in a small room. The curtains were drawn away at the sides
of the bed, but at the foot they shut off the view of the fire.
One of the witnesses signed at a small table at the foot of the bed
and cut off from testator's view by the curtain. It was held that
the requirement that the signing must be in the line of vision ap-
plies where the witnesses are in another apartment, but not neces-
sarily when they are in the same room. 6 The decision in this case
apparently rests on the presumption hereafter to be referred to

1 1 Doug. 241; also Orndorff v. Hummer, 12 B. Mon. (Ky.) 619.

2 Allen's Will, 25 Minn. 39; also to the same point, Tod v. Winchelsea, 2
Carr. & P. 488.

3 Walker v. Walker, 67 Miss. 529. And so, also, if he could have seen, if he
chose, by merely changing his posture, and was able to do so himself. Aikin
v. Weckerly, 19 Mich. 482.

4 Neil v. Neil, 1 Leigh (Va.) 6; it would not suffice that he might have been
moved by others, had he desired it, Id. ; contra as to this last point, see Orn-
dorff v. Hummer, 12 B. Mon. (Ky.) 619

5 Newton v. Clarke, 2 Curt. 320.

SIGNING IX PRESENCE OF TESTATOR. 277

that prima facie a signing in the same room is in testator's pres-
ence, and on the fact that for all that appeared he might have
pushed aside the curtain had he chosen to do so. The witnesses,
when signing, were within the line of his vision, save only for the
curtain close to him.

(/). When the witnesses signed, the bed curtains were drawn
close all around the bed where testatrix lay dying. She lay on
one side with her face away from the witnesses, and could not
have turned over, or seen them, even if the curtains had been
open. The signing by witnesses was held not to have been in the
presence of the testatrix. 1

iff). Even though in the same room, if the signing were shown
to have been done in a corner in a secret and clandestine manner,
it would not be u in the presence " of the testator."

(A). The witnesses to the will of Barbara Ambre signed in an
adjoining room. The door was open, and from where she lay
propped" up in bed she could have seen them sign if she chose.
This was sufficient. 3

(i). Testator was lying sick in bed in one room. One witness
signed in the next room. The door was open between, and if
testator had sat up in bed, as he was able to do, he could have
seen the will signed. " The test in this case is, whether the tes-
tator might have seen, not whether he did see, the witnesses sign
their names." 4

(j). The testator lay in a bed in one room, and the witnesses
went through a small passage into another room, and there set
their names at a table in the middle of the room, and opposite to
the do^r, and both that and the door of the room where the tes-
tator lav were open so that he might have seen them subscribe
their names if In- would ; and though there was no positive proof
that he did see them subscribe, yet that was a sutlicient Mibserib-
iug within the meaning of the statute. 6

(/ •). Eonora Jenkins executed her will while sitting in her ear-

' Tribe v. Tribe, i Roberts. 7?:.. Bee Longford \. Byre, i P. Wins. 740.

Aml.n- v. \\Yi-h:iar, 71 III. KM).
' In Good* Of Trimin-11. 11 Jut. (N. B.) 848.
b Davy v. Smith, :: Balk. :'>!>">.

278 EXECUTION.

riaee outside her attorney's office. The witnesses then took the
will into the office and signed it there. Through the office win-
dow testatrix might, had she wished, have seen them sign. In
the opinion of Lord Chancellor Thurlow, the will was well exe-
cuted. 1

(I). The testator requested the witnesses to go into another
room seven yards distant, to attest the will. In that room there
was a window broken through which testator might see them.
Per Cur. : " The statute required attesting in his presence, to
prevent obtruding another will in place of the true one. It is
enough if the testator might see, it is not necessary that he should
actually see them signing, for at that rate if a man should but
turn his back, or look oft", it would vitiate the will. Here the
signing was in the view of the testator ; he might have seen it,
and that is enough." 2

(m). Charlotte Piercy, the testatrix, at the time of the execution
of her will, was very sick, and totally blind. After she had signed
in the presence of the witnesses, they signed in an adjoining room
across a passage. The doors were both open, and from where she
lay she could have seen them sign if she had not been blind. Sir
Herbert Jenner Fust : " When this case was moved on a former
occasion, there was no evidence to show that the testatrix could
have seen the witnesses sign, had she had her eyesight, and I felt
I could not place her in a better position than one who could see.
It does not appear whether there were curtains to the bed ; still,
as it is positively sworn by two witnesses that she could, had she
had her sight, have seen from her bed the witnesses subscribe, I
cannot refuse this application." 3

(n). Jackson Riggs, the testator, was, when he executed his will
and codicil, obliged, as a result of an accident, to lie on his back
and was unable to turn his head or look sideways. The codicil
was signed by the witnesses at a table within four feet of him,
and he could have seen them sign if he had been able to move his

1 Casson v. Dade, 1 Bro. Ch. 99. 3 Shires v. Glascock, 2 Salk. 688.

3 In Goods of Piercy, 1 Roberts. 278. In proving a blind man's will it must
be shown that he knew in some way the contents of the will he executed. It
is not strictly necessary, however, that the identical will be read over to him.
Fincham v. Edwards, 3 Curt. 63.

SIGXING IN PRESENCE OF TESTATOR. 279

head. His case was held to be the same in principle as that of a
blind man. Practically, he was deprived of the use of his eyes.
The signing was held to have been done in his "presence." '

(o). The witnesses to the will of Alexander Ellis took the in-
strument into another room to sign their names to it. The doors
were open, and they were so near him that they could hear him
breathe. But they could not see him nor be seen by him. The
signing was held not to have been in his presence. 2

(_p). William Norton, the testator, signed his will in one office.
The witnesses then signed it in an adjoining office. The door
between the rooms was wide open. A line passing from the desk
where testator sat, to that where the witnesses signed, would
necessarily curve in order to pass through the open doorway. It
was held that as they were out of testator's range of vision where
he sat, the will was not signed in his presence. 3

(q). Mary Ann Killick, the testatrix, lay sick in bed in one
room. The witnesses signed in the next room. The door was
open between. By raising herself in bed, and inclining her head,
she could have seen them sign, but not otherwise. She had not
seen and did not see the witnesses at all, or know thev were sign-
ing, or even know they were there. Sir J. P. Wilde: ....
" I think such an act as this cannot be said to be done by one per-
son in the presence of another, unless at the time each is aware
of the other's presence." On this (and another) ground he pro-
nounced against the codicil in question.''

( /i. The attesting witnesses of the will of Emma Loring were
present at its execution, but did not themselves subscribe it for
about half an hour, and then did so in an adjoining room. The
door was open between the two rooms, but the testatrix was sick,

1 Kiggs v. Riggs, 185 Mass. 2:58. For a somewhat similar case, where, how-
ever, the place <>r signing was net even within testator's " range "t vision," and
yet the will was upheld, in admitted violation of the rule generally established,
Bee Cook v. Winchester I Mich.), 46 N. W . 106.

• In Goods of Ellis, ? dirt. 895

orton v. Bazett, Deane<& 8w 359, giving a diagram showing the position
of the desks, the doorway, etc. This was reconciled with Newton v. Clarke,
tupra, by the tact thai inn- the witnesses were in another room.

1 In Goods of Killick, :i Bw. & Tr. 578.

2S0 EXECUTION.

and could not from where she lay have seen them sign, and did
not even know, at the time, that they were doing so. Sir James
Ilannen : " In no sense can it be said that the witnesses signed in
the presence of the testatrix, and this document is therefore inop-
erative as a testamentary instrument." '

The principles to be deduced from the authorities illustrated
by the foregoing instances, may now be stated as follows :

In States where the statutes require the witnesses to sign in
" the presence " of the testator, it is not essential that they should
sign in the same room with him. The cases thus fall naturally
into two classes, those where the witnesses do, and those where
they do not, sign in the room with testator. These classes should
be considered tirst together and then separately.

First, then, as the general purpose of the statute is to insure a
reasonable opportunity for testator to oversee the acts of the wit-
nesses, be sure that they sign the paper as he turns it over to
them, and generally be in a position to satisfy himself of their
faithfulness and accuracy, the best practical meaning to be at-
tributed to the word " presence " is that it requires the witnesses
to sign where testator can see them if he wishes to, and it is not re-
quired that he must in fact actually see them. Such being the pur-
pose of the statute, let us now consider the two classes of cases.

(a). Signing in the same room. — Here the natural and logical
prima facie presumption is, that the position of the witnesses
satisfies the statute, though this presumption may be overthrown
by proof. But the actual facts shown must be weighed in the
light of the purpose of the statute, and if it be shown that they
signed where the given testator could not have seen them if he
had tried, then the signing was not in his presence.

(b). Signing not in the same room.— Here the reasonable^>Wm#
facie presumption is that the signing was not in testator's pres-
ence. But if the actual facts show that the spirit and purpose of
the statute were fully satisfied, that is, if the signing was in the
line of testator's vision where he was, so that he could have seen
without changing his location, or doing more than shifting his
position, as by turning his head, or rolling over on his side, then

1 Jenner v. Ffinch, 5 P. D. 106.

THE ATTESTATION CLAUSE. 281

it was in his constructive " presence " in the sense intended by the
statute, although not in his actual presence. 1 In this case it does
not suffice that testator might, by rising and walking a few steps,
have brought the witnesses within his range of vision.

THE ATTESTATION CLAUSE.

It is the usual practice to place at the end of the will, after the
signature of the testator, a formal statement enumerating the sev-
eral statutory requisites of due execution, and alleging that they
have been duly complied with. The common form is substan-
tially as follows:

(Signature of testator.) (Seal.) 2

Signed, sealed, published and declared
by the above-named testator, as his last
will and testament, in the presence of us
who, at his request, and in his presence,
and in the presence of each other, have
hereunto set our names as witnesses, this
day of , 18 .

(Signatures of witnesses.)

This form in any given case may be shortened by omitting
reference to any acts not called for by the controlling statute,
or changed to adapt it to the actual facts. Thus, a testator may
have signed his name beforehand, and acknowledged his signature
(where that is required) in the presence of the witnesses, in
which case the statement in the attestation clause should corre-
spond to these facts. It is not necessary to have any attestation
clause at all, 3 and if one is added, it is sometimes very brief, as,
for instance, the mere phrase " Witnessed by," or " Witness our
hands," etc. When it states the details of the execution, it fur-
nishes a convenient memorandum of what actually took place,
and its value as evidence is set forth in the following cases.

1 Mandeville v. Parker, 81 N. J. Eq. 242; Neil v. Neil, I Leigh (Va.) 6;
Orndorffv. Bummer, 12 B. Mon. (Ky.) 619.

Apart from the possible bearing of any local statute in force at the time in
question, a seal Is not now necessary in England or in any State of the Onion.
For a New York illustration, Matter of Diez, 60 N. Y. 88.

•In re Look's Will, 5 » V Hupp 50; Jackson v. .lack-on. 89 NT. Y. 158
(169), and cases cited ; Robinson v. Brewster, 80 N. !■;. Rep, (111.)

282 EXECUTION.

(1). Where the witnesses forget the facts.
In the Will of James Morrison.

Surrogate's Court, New York County, New York, 1892.

(N. Y. State Rep.)

Hansom, S. — The paper was executed in 1861. The two sub-
scribing witnesses — intelligent men — have no recollection of the
facts attending the execution of the paper. They knew the de-
cedent well, recognized his signature and testified that they were
confident, having signed the attestation clause, the recitals therein
must be true. The clause comes in aid of probate when by the
lapse of time the memories of witnesses fail to recall the facts.
(Matter of Pepoon, 91 ET. Y. 255.) The will may be admitted
to probate.

[Also Matter of Holgate, 1 Sw. & Tr. 261 ; Matter of Kellum,
52 N. Y. 517 ; Kugg v. Bugg, &3 N". Y. 592 ; Gove v. Gawen, 3
Curt. 151; Brown v. Clark, 77 K Y. 369 (372); Stoutenburgh
v. Hopkins, 43 N. J. Eq. 577. Where the witnesses disagree, the
rule is that affirmative evidence of what did take place is intrin-
sically of more weight than negative testimony that certain acts
were not performed. Chambers v. Queen's Proctor, 2 Curt. 415.]

In the Goods of John Holgate (deceased), on Motion.

English Court op Probate, 1859.
(1 Sw. & Tr. 261.)

The deceased, John Holgate, died on the 13th September, 1858,
leaving a will in his own handwriting, which terminated thus:

"This 15th day of August, 1851.
" Signed by me, John Holgate, the testator, as and for his last
will and testament. In the joint presence of us present at the

e _ e

same time, who in his presance, at his r quest, and in the pres nee

a a

of each othior, have her unto subscribed our names as witnesses.

"John Holgate.
" John Hodgson. Henry Guy."

The attesting witnesses in their affidavits stated " that they
signed the paper at the request of the testator, who said

THE ATTESTATION CLAUSE. 283

when he brought it to them, ' I want you to sign this,' or
' Put your name to this,' or in words to that effect, but
they could not recollect the exact words ; that they were
both present at the time, and subscribed the will in the tes-
tator's presence ; that they could not say positively, whether the
said will was signed when he, the testator, brought it to them or
not, but to the best of their recollection and belief it was, though
they could not recollect whether he signed it in their presence or
not, their impression being that he did not, but that it was signed
when he first bnmght it to them; that the signature was in the
handwriting of the deceased ; that, to the best of their recollec-
tion, the testator did not mention that the said paper he so re-
quested them to sign was his will, but that they could not be sure
that he did not, but they then thought and considered it was his
will." The will was executed at the house of the witness John
Hodgson, and shortly afterwards was handed by the testator to
his daughter, in whose custody, or in that of her husband, it re-
mained until after the death of the testator.

Dr. Middleton cited Faulds v. Jackson (6 N. C. App. 1), and
submitted that the evidence of the witnesses, and the position of
their signatures, established that if the testator did not sisrn his
name in their presence, his signature must have been seen by
them when they subscribed their names.

Sir (J. Crrssii'dl.— The witnesses cannot recollect whether the
testator brought it signed, or signed it in their presence. In
either case it is entitled to probate. Probate granted.

In the Will of Stephen Harking.

Surrogate's Coukt, New York County, New York, 1892.
(New York Law Journal, May 20, 1892, p. 478.)

Ii<i iismn, S. The paper offered for probate was written on a
printed blank form for a will and was executed November 30th,

91. Upon its face it appears to have been properly executed,
and it has a full attestation clause. None but the members of
the family, all interested in the will, and the party named as ex-
ecutor, were present at the execution. When the proponent ap-
peared to prove the will, less than four months after its execution,
Mi-.- Sheridan, one of the subscribing witnesses, in stating the

284 EXECUTION.

order of events, mentioned as the first act the signing by the wit-
nesses. On further examination she was undecided as to whether
they or the decedent signed first, and the reading of the attesta-
tion clause to her did not aid her memory. Nor did she remem-
ber seeing decedent's signature when she signed. An adjourn-
ment was granted to enable her to further reflect on the matter,
and on being recalled she stated, in answer to the question
whether the signatures of the witnesses preceded the signing by
the decedent, " I think that we signed first," and she further
stated that such was her present conviction. The other witness,
Mrs. Vorbach, could not be produced on account of illness and
an adjournment was granted in the hope to procure her testi-
mony. When it appeared to my satisfaction that she could not
be produced, an order was entered dispensing with her testimony
and her son proved her signature and testified that his mother
was in her last illness, and that the disease from which she has
suffered has affected her mind. It is the law that, when from the
lapse of time, the memory of a witness cannot recall the events
that took place on the execution of a will, the existence of an
attestation clause correctly reciting the various acts as they should
have been done, will be accepted as evidence of a valid execution.
A period of less than four months after the execution of this will
hardly falls within the range of the decisions. But as there is
no question of the existence of a testamentary purpose or the
good faith of all the parties interested in the proceeding, and no
injustice will be done thereby, I will admit the will on the re-
citals in the attestation clause.

In the Matter of the Probate of the last Will of William

G. Alpaugh, deceased.

New Jersey Prerogative Court, 1872.

(23 N. J. Eq. 507.)

An appeal from decree of the Orphans' Court of Hunterdon
County.

The Ordinary. — The objection to the will in this case being
admitted to probate is, that it does not appear by proof that the
testator signed it in the presence of the witnesses, or that he ac-
knowledged the signature to be his in their presence. This is

THE ATTESTATION CLAUSE. 285

required by the statute, Nix. Dig. 1032, sec. 24, and no other
evidence can be allowed to supply the defect. If twenty witnesses
saw him sign or heard him acknowledge the signature, it will not
supply the requirement of signing or acknowledgment, in the
presence of the persons whom he selected as the legal witnesses
of this solemn act. In this case the testator drew the whole will,
including the attestation clause, which declares that it was signed
in the presence of the witnesses. The witnesses testify that after
Mr. Alpaugh's name was signed to the will he took it in his
hand, declared it to be his last will, and asked them to sign it as
witnesses. 1 Neither of them testifies that he saw Alpaugh sign
it, or that he acknowledged the signature to be his. Neither of
them says that Alpaugh did not sign it in their presence. They
were not asked directly whether they saw him sign. Each states
such facts as he remembers, and says further that he does not
recollect all that was done or said.

In such case, as in the case of the death of the witnesses, the
attestation clause must be taken as true, and as proof of signature
in their presence. Most especially in this case, where the at-
testation clause is in the handwriting of the testator, and shows
that he knew the requirements of the law, the presumption will
be that he saw to it that they were complied with. If the attest-
ing witnesses had testified that they did not recollect whether
the will was signed in their presence, the effect would be the
same. If they had testified positively that the will was not signed
in their presence, hut was signed before they came, their evidence
would not be overcome by the certificate in the attestation clause,
but might be by convincing proof that it was actually signed in
their presence.

In this case the want of recollection, or the want of proof, is
remedied by the presumption arising from the attestation clause,
aid is sufficient to wan-ant the determination of the Orphans'
Court in admitting the will to probate, as signed by the testator
in the presence of the attesting witnesses.
The decree musl be affirmed.

1 In New York and Borne other jurisdictions this would constitute an ac
knowledgmenl of a signature then already on the will and visible. Baskin
v. Baskin, 3<i X. V. in;, given ante.

286 EXECUTION".

(2). Where the ivitnesses fraudulently deny the facts.

The three subscribing witnesses to the will of Mr. Jolliffe, and
the two surviving witnesses to a codicil, all testified against the
due execution of the instruments (on the ground of mental inca-
pacity). Many others, not attesting witnesses, testified to the
contrary, among them Mr. Rupert Dovey, the attorney who drew
the will. The reporter (Sir Win. Blackstone) says: "Upon the
whole it appeared to be a very black conspiracy to set aside this
gentleman's will, without any foundation whatsoever." After a
trial of fifteen hours the jury were out only five minutes, and
brought in a verdict establishing the will. 1 Subsequently the
three subscribing witnesses to the will were convicted of perjury,
and were sentenced each of them to be imprisoned six months,
to stand twice in the pillory, with a paper on their heads de-
noting their crime, once at Westminster Hall Gate, and once at
Charing Cross; and to be transported to America (3 Geo. III.)
for seven years. They afterwards obtained a pardon in respect
to their transportation. 2

(3). Probate refused in spite of attestation clause.

At the end of the will of Thomas Lewis was an attestation
clause, signed by two witnesses, stating that " the above written
instrument was subscribed by the said Thomas Lewis in our pres-
ence, and acknowledged by him to each of us, and he at the same
time declared the above instrument so subscribed to be his last
will and testament, and we at his request have signed our names
as witnesses hereto." The testimony of the two witnesses showed,
however, that in fact the signature of testator was neither made
nor acknowledged in their presence, and that testator did not de-
clare the instrument to be his will. W. F. Allen, J. : [The for-
mal execution and publication] "cannot, however, be presumed
in opposition to positive testimony, merely upon the ground that
the attestation clause is in due form and states that all things
were done which are required to be done to make the instrument
valid as a will." 3

1 Lowe v. Jolliffe, 1 W. Bl. 365. 5 The Kin? v. Nueys, 1 W. Bl. 416.

3 Lewis v. Lewis, 11 K Y. 220 ; also Orser v. Orser, 24 N". Y. 51 ; Tarrant

THE ATTESTATION CLAUSE. 287

(4). Probate granted in spite of testimony.
In the Hatter of Samuel Cottrell, deceased.

New York Court op Appeals, 1884.
(95 N. Y. 329.)

Appeal from judgment of the General Term of the Supreme
Court, third department, entered upon an order affirming decree
of the surrogate of Rensselaer County, admitting to probate the
will of Samuel Cottrell, deceased.

There was a full attestation clause, but the two witnesses both
denied all its allegations and also denied that they had in fact
signed it.

liuger, Ch. J. (After considering the power of the Court of
Appeals to re-examine conclusions of fact reached by the court
below.) The Code of Civil Procedure has also put, in the form
of a statutory enactment, a rule in relation to the proof necessary
to show the valid execution of a will which had indeed before
then been well settled, but had previously existed by force of
adjudication alone, viz. : That the due execution of a will might
be established by competent evidence, even against the positive
testimony of the subscribing witnesses thereto.

So much of Section 2620 as is material to the point under dis-
cussion reads as follows: "If such a subscribing witness has for-
gotten the occurrence, or testifies against the execution of the
will, the will may, nevertheless, be established upon proof of the
handwriting of the testator and of the subscribing witnesses, and
also of such other circumstances as would be sufficient to prove
the will upon the trial of an action." (The court hew discuss
QumerouB authorities, and consider and weigh the testimony of
the witnesses and the circumstances connected with the execu-
tion.)

The surrogate has found as a fact upon conflicting yel compe-
ted evidence, thai the subscribing witnesses to the will in ques-
tion in facl Bigned the attestation clause.

We thne have an holographic will, not only properly Bigned and

v. Ware, reported in note, 25 X. Y. al 425, and cases cited ; Will of Meurer,
4t Wis ■•'■II. and ca e cited ; Glover v. Smith, 57 I- 'I'- 60 ; Keithley v. Staf-
ford (111.), i" N- E Rep Tin.

288 EXECUTION.

executed by the testator, but also signed by the witnesses, and
appearing upon its face to be entirely regular, and purporting to
have been executed with all the formalities and in the manner re-
quired by the law to make a good and valid will.

The witnesses to the will have, by signing the attestation clause,
certified to facts taking place upon its execution, directly conflict-
ing with the evidence given by them upon the trial. To believe
this evidence requires us to suppose that the testator deliberately
forged the names of witnesses to his will at a time and under cir-
cumstances when it was just as convenient for him to have ob-
tained their genuine signatures thereto. Upon the evidence the
surrogate has refused to give credit to their testimony, and must,
we think, necessarily have found, for reasons appearing sufficient
to him, that none of the evidence given by them was entitled to
belief. (The court here consider the intrinsic improbability of
these witnesses' testimony, and call attention to the general pre-
sumption of due execution arising from the supervision of expe-
rienced persons familiar with the statutory requisites and with
the importance of compliance with them, citing Chambers v.
Queen's Proctor, 2 Curteis 415 ; In re Kellum, 52 N. Y. 519 ;
Gove v. Gawen, 3 Curteis 151 ; Peck v. Cary, 27 K Y. 9.)
[Matter of Smith, 39 IN". Y. State Rep. 698 ; Matter of Nelson,
43 N. Y. State Kep. 30.]

We think that that presumption also arises in this case. The testa-
tor had not only once correctly gone through the ceremony of exe-
cuting a will, but by drawing the attestation clause in question he
had at the time necessarily brought before his mind each one of
the conditions imposed by the statute as necessary to its valid exe-
cution. It is quite unreasonable to suppose that such a person
having drawn and signed a will, and having added thereto a
proper attestation clause, should have provided witnesses there-
for, and required them to sign a certificate to the effect that each
of the required formalities had then been observed, without also
providing for their actual performance. He had knowledge of
the necessity of the act required, to the validity of the business
he was then transacting, and to hold that he omitted it would
oblige us to ascribe to him the intention of performing a vain and
useless ceremony at the expense of time and labor to himself and
the commission of a motiveless crime. The presumptions arising

THE ATTESTATION CLAUSE. 289

from the certificate of the subscribing witnesses, and the supervi-
sion of an experienced person that the requisite formalities were
complied with, are fortified by the acts and conduct of the testa-
tor. Nearly three years elapsed between the date of the will and
the death of the testator, and he had, therefore, ample time and
opportunity to supply any defects in its execution, if any existed,
but at the last moment, when the subject of a will was brought to
his attention, he evidently supposed that he had made a valid tes-
tamentary disposition of his property.

It also appears that it was executed while the testator was living
in the family of the alleged witnesses; that one of them had
formerly acted in a similar capacity for him, and that they were
both persons who for convenience, as well as from their relations
to the testator, would naturally have been selected as witnesses to
a will drawn by himself, and whose execution he personally super-
vised.

We think the various circumstances to which we have referred,
in connection with the full and regular attestation clause in the
handwriting of the testator, proved to have been signed by the
witnesses, were sufficient to authorize the finding by the court
below establishing the will.

Of course no controversy can arise in this case over any ques-
tion as to the real intention of the testator in the disposition made
by his will of his property, for not only were his wishes deliber-
ately funned, but they are recorded in his own handwriting,
which implies care and deliberation on his part in framing its
provisions and directions. It is the duty of the court to carry
into effect a testator's intentions when they can be discovered,
provided they do Dot contravene any provision of law.

It follows from these dews that the judgment appealed from
should be affirmed.

All concur, except h'njxdlo, J., not voting.

Judgment affirmed.

[Also Oreer v. Orser, 24 N. Y. 51.]

290 EXECUTION.

(5). JVo attestation clause. — Witnesses dead.

In the Goods of Jane Thomas Widow, deceased), on

Motion.

English Court of Pkobate, 1859.

(1 Sw. & Tr. 255.)

In this case the will of the deceased bore date the 10th of Oc-
tober, 1842. By it Jane Burnet, wife of James Burnet, formerly
Jane Bishop, spinster, was appointed executrix. The signature
was attested by three witnesses, but there was no attestation
clause. The signatures appeared under the word

-" Witness,

" Benjamin Franklyn,
" John Skeggs,
" Mary Skeggs."

B. Franklyn, a spirit merchant at Plymouth, deposed on affi-
davit that he remembered being requested by the testatrix to
attest her signature to the will, and that she did sign her name
in his presence, and that he thereupon subscribed his name in her
presence: "and further, that after the interval of so many years
he was unable to recollect exactly all the circumstances attending
his so subscribing the said will ; but, as well as he remembered,
the testatrix and he were the only persons present at such time,
and the signatures of John Skeggs and Mary Skeggs, which now
appear subscribed to the said will immediately under his signa-
ture, were not so subscribed in his presence. He remembered
that he made a suggestion to the deceased, at the time he sub-
scribed the will, that another witness ought to be present, but
what further passed on the subject he was unable to recollect.
That he had no knowledge whatever whether the testatrix after
wards acknowledged the signature of the said will in the presence
of the said two witnesses whose names appeared subscribed
thereto, or of the circumstances under which such witnesses so
subscribed the said will."

John Skeggs and Mary Skeggs were since dead. They were
people of some consequence at Devonport. Their handwriting
was spoken to by two witnesses.

Dr. Sjpmks moved the court to decree probate of the will to

COMPETENCY OF WITNESSES. 291

the executrix therein named. He cited the remarks of Dr. Lush-
ington in Burgoyne v. Showier, 6 Rob. Eccl. Rep. 10 : " If a
party is put on proof of a will he must examine the attesting
witnesses. On the present occasion there are two subscribed wit-
nesses ; if these persons were dead, the law would presume the
will to be duly executed," etc. He submitted, that though Frank-
lyn's affidavit made his signature unavailing, yet the presuirpti in
would now be that the testatrix afterwards duly acknowledged
the signature in the presence of Skeggs and his wife, and that
they duly subscribed their names.

Sir C. Cresswell. — I cannot at present grant this motion. The
presumption which would arise on the face of this paper with re-
gard to the three subscribed names, is in part rebutted by the
affidavit of Franklyn. Does the rest of the presumption hold
good as to the other names ? They have not the appearance of

being written in the same ink.

Cur. adv. vult.

Sir C. Cresswell. — I think I may fairly assume that the will

was duly executed. The first subscribed witness who survives

states in his affidavit that he explained to the testatrix that two

witnesses were required to be present at the execution of a will,

and it appears that some time afterwards the testatrix obtained

the signatures of two other witnesses. It is a fair presumption,

that she acted upon the information given to her, and got these

last two witnesses to attend in order that she might acknowledge

her signature in their presence.

Probate granted.

competency of witnesses.

The Statute of Frauds in its provisions concerning wills, called
for credible [subscribing] witnesses. It has long been well set-
tled thai tlii- word "credible," or "creditable," is to be taken in
the sense of " competent," ' and is intended to require as sub-
scribing witnesses to wills persons not legally disqualified from
testifying in courts of justice by reason of mental incapacity, in
terest, or the commission of crime, or other cause disqualifying

1 Amorv v Pellowes, 5 Mi 319; Taylor v. Taylor, 1 Rich. L. (S. C.)C31;
In re Estate of Noble, 32 III. A |»p. ">:;.">.

292 EXECUTION.

them from testifying generally or rendering them incompetent in
respect of the particular subject matter or in the particular suit. 1

This subject is a branch of the law of evidence rather than of
the law of wills. But it may not be out of place here to state
the more important principles concerning the competency of sub-
scribing witnesses to wills.

The word "credible" has generally been abandoned, in our
statutes, in favor of the word " competent." It is clear, from the
test of competency above stated, that it varies with the varying
general laws in the field of evidence. At common law, for in-
stance, a wife was not a competent witness to a will under which
her, husband was a devisee. But wherever the general competency
of the wife has been established, as a witness in her husband's
favor, it would appear that she should thereby become competent
to witness a will favorable to him. And such has been held to be
the result. 3

The requirement of competency refers to the date of execution
and not to that of testifying in court. 3 Competency acquired
subsequently, and before the proceedings for probate, will not
suffice, as, if a child, too young to be a competent witness, should
nevertheless subscribe the will and should afterwards, and before
probate, become old enough to satisfy the requirement of compe-
tency, this would not answer. 4 And so, also, if the witness is
competent at the time of execution, subsequent loss of compe-
tency, as, for example, by insanity, will not affect the validity of
the will. 6

It may also be added, that an interest as executor, or in other
purely fiduciary capacity, will not render a witness incompetent, 6
though it has sometimes been held that the prospect of his com-
missions would give him such an interest as to disqualify

1 Robinson v. Savage (111.), 15 N. E. 850; Fuller v.*Fuller, 83 Ky. 345; Vroo-
man v. Powers, 47 Ohio St. 191.

8 Compare Sullivan v. Sullivan, 106 Mass. 474, with Hawkins v. Hawkins,
54 la. 443, both given post.

3 Sears v. Dillingham, 12 Mass. 358; Taylor v. Taylor, 1 Rich. L. (S. C.) 531.
On this point there has been a divergence of opinion among the courts.

4 See Carlton v. Carlton, given post, concerning infants as witnesses.
6 Sears v. Dillingham, 12 Mass. 358 (361).

6 Richardson v. Richardson, 35 Vt. 238; see Sears v. Dillingham, 12 Mass.
358 (360), Piper v. Moulton, 72 Me. 155.

COMPETENT WITNESS. — INFANCY. — PRESUMPTION. 293

him ; x hut it is generally held that this fact does not render the
executor incompetent. 3

Under the statutes of our several States, many variations are
to be found in this general field. Usually, however, if persons
incompetent on account of interest under the will, do nevertheless
sign as witnesses, the result is that all provisions for them in the
will are annulled, and they are then accepted as satisfactory wit-
nesses. Bat if any such signers are " supernumeraries," — that is,
if there are enough other witnesses to prove the will without
them, then they are not cut off from the testamentary provisions
in their favor. 3

It is sometimes further provided that a witness need not be
deprived of such part of the testamentary provision for him as
he would have received if there had been no will. 4

Illustrations of these principles, and a statement of other rules
concerning competency, will be found in the following cases.

Note.

On Competency of Witnesses, see 1 Jarman on Wills, 70 et
seq. ; and at p. 71 (Randolph & T.'s Am. Ed.), a note classifying
the American statutes ; 1 Redf. 252 et seq.

COMPETENT WITNESS.— INFANCY. -PRESUMPTION.
Carlton v. Carlton.

New Hampshire Siimo.mk Jcdiciai, Court, 1859.
(40 N. H. 14.)

Doe, J. — The statute of wills requires " three or more credible
witnesses," and the well-settled construction of this and other
similar Btatutes is, thai the witnesses should be competent, or not
disqualified, at the time of the attestation of the will, to be sworn
and to testify in a COUrl of justice The argument that attesting

witnesses are regarded in law as persons placed around the testa-
tor, to protect him from fraud, and to judge of liis capacity, and

1 Taylor v. Taylor, I Rich. L. (S, 0.) 581.
Snyder v. Hull, it Penn. St. 64.

Pot example, California Civil Code, 8§1282, 1288; Howell's Mich. Ami.
St., .7 6791, 57fl

Por example, Causae Gen, St., 7216, and statutes cited in preceding note.

294 EXECUTION.

are permitted to testify as to the opinions they formed of his
capacity, and that it is contrary to the policy of the law to allow-
so important a trust to be exercised by children, tends to show
that, on account of their peculiar rights and duties, they should
possess some other qualifications than those which entitle persons
to be sworn as witnesses in court; and it might lead to the con-
clusion that they should be experts in questions of insanity — a
result that would often prevent the making of wills. Undoubt-
edly the statute was intended to guard against fraud and to pro-
vide means of proving the mental condition of the testator. And
one of the objects of requiring the presence of witnesses being to
give them an opportunity to ascertain and judge of his capacity,
it would seem necessarily to follow that they should be allowed
to testify the opinions which they were specially appointed to
form. But whatever they are required or authorized to do, they
are not required to have any other qualifications than those of
ordinary testifying witnesses. There is nothing in the statute to
demand or to justify any unusual definition of the term " credible
witnesses."

The general rule, in common-law trials, is, that the competency
of witnesses is to be decided by the court, and that the examina-
tion of a child, to ascertain his competency to be sworn as a wit-
ness, is made by the judge at his discretion. And it is urged that
the competency of the attesting witness, who was under fourteen
years of age at the time of the attestation, cannot be proved by
other witnesses, but that the determination of the judge, to admit
or not admit him to testify, must depend solely upon his own
examination of the child, and that the judge cannot, by such ex-
amination alone, at the hearing on the probate of the will, judge
of his competency at the time of attestation. If this were so, the
death of the witness would have barred the probate of the will,
although it might have been legally executed. If the attesting
witnesses are competent at the time of probate, they may be
sworn. Whether they were competent at the time of the attesta-
tion is a question entirely distinct and separate from the question of
their competency at the time of probate. There is no more reason
to confine the judge of probate to the examination of a witness
at the probate, to determine whether such witness were competent
at the time of attestation, than to limit the judge to the testi-

COMPETENT WITNESS. — INFANCY. — PRESUMPTION. 295

mony of one witness upon any other question. "Whether, at the
probate, an attesting witness is incompetent to be sworn, by reason
of deficiency of understanding arising from immaturity of in-
tellect, insanity, or intoxication, is a question to be determined by
the judge on proper evidence. More evidence from other wit-
nesses may be required to determine whether such incompetency
existed at the attestation, than to determine whether it exists at
the probate, because the appearance of the witness whose compe-
tency is questioned may furnish little or do evidence of his condi-
tion at a former time. But the question of his competency is
equally open, in both cases, to be settled by such evidence as can
be produced. And when the objection to his competency at the
attestation is founded upon alleged defect of understanding, it is
equally proper to receive the testimony of other witnesses whether
the defect is alleged to have arisen from immaturity, insanity, or
intoxication. He is presumed to have been competent, until the
contrary appears. Without any evidence concerning him, he is
not presumed to have been under the age of fourteen years, or
insane, or intoxicated. If he were alive and present at the pro-
bate, his appearance might sufficiently indicate that he was then
under fourteen years of age, or that he was an idiot, and that,
consequently, he could not have been competent at the attestation.
But if he were dead, or if he were alive, and could not be pro-
duced at the probate, the burden of proving him to have been less
than fourteen years old, like the burden of proving him to have
been insane or intoxicated, would be upon the party asserting his
incompetency. Whether, at the probate, he were dead or alive,
proof that at the attestation he was under the age of fourteen
would overcome the presumption of competency, and make a
priim'i facie case againsl the due execution of the will, because
children under that age are presumed to be incompetent. But
such evidence would only substitute one presumption for another.
There IS DO age within which children are absolutely excluded.

The degree of understanding which is the tesl of competency is
not developed in all at the same age, and it would be unreasonable
to establish any arbitrary and conclusive standard of years. Bui
it is natural thai a presumption should be drawn from age, and it
is just thai Buch presumption may be rebutted. Persons over

fourteen years of age may be incompetent, from defeel "I under-

296 EXECUTION.

standing, and persons under that age may be competent, and it
is as proper that the truth should be shown in the one case as
in the other. In proceedings in the probate court, whether the
attesting witnesses of a will are then competent to testify, is a
preliminary question concerning the admission of evidence, to be
determined before they are sworn ; but whether they were com-
petent attesting witnesses at the time of attestation is a question
concerning the due execution of the will, to be decided after they
are sworn. If they are competent to testify at the probate, it
would be no more an objection to their being sworn, that they
were incompetent at the attestation, than that they had been in-
competent at any other time. They may be needed to give tes-
timony other than that usually given by attesting witnesses. In
a suit at common law, where a witness is called to prove a past
transaction, it is no objection to his being sworn that at the time
of the transaction he was incompetent to understand it, on account
of blindness, deafness, immaturity, insanity, or intoxication. The
question of his ability at the time of the transaction to understand
it, is for the jury. So if a will were to be proved before a court
and jury, the qualifications, at the time of the trial, of the persons
offered to testify, would be passed upon by the court, and the
qualifications, at the time of the execution of the will, of the
persons who attested and subscribed it in the testator's presence,
would be passed upon by the jury. The only difficulty or con-
fusion arises from the fact that both of these classes of persons
are called witnesses, both classes may be composed of the same
persons, and both are required to possess the same qualifications
at different times.

In this case one of the witnesses having been under fourteen
years of age, is presumed to have been incompetent, but the
executor may have an opportunity to rebut that presumption.

COMPETENT WITNESS. — LEGATEE. 297

COMPETENT WITNESS.— LEGATEE.— TESTIMONY AGAINST

INTEREST.

Smalley v. Smalley.

Make Supreme Judicial Court, 1880.
(70 Maine 545.)

Facts agreed.

Appleton, C. J. — This is an appeal from a decree of the judge
of probate disallowing the will of Archelans Smalley.

Bart lv. Smalley, a son of the testator and a legatee under the
will to the amount of one dollar, was an attesting witness to the
same. It is conceded that had there been no will his interest as
heir-at-law would have been greater than that under the pro-
vi.-ions of the will.

The will is contested on the ground that he was not a compe-
tent witness.

The statute relating to the attestation of wills has undergone
various verbal changes in the different revisions of the statutes.

By the statute of 1821, c. 38, see. 2, a will to be valid must
"be attested and subscribed in the presence of the testator by
three credible witnesses."

In the revision of 1857, c. 74, sec. 1, a will to be valid must
be subscribed " by three disinterested and credible attesting wit-
nesses."

In 1859, by c. 120, section first of c. 74 was amended by strik-
ing nut the words " disinterest ed and," and adding thereto "not
beneficially interested under the provisions of the will."

In the revision of 1871, c. 74, sec. 1, the words " the provisions
of woe Btricken out. so that now a will is required to he wit-
nessed "by throe credible attesting witnesses not beneficially in-
terested under said will."

By a series of decisions in England and in this country it has
been determined that the word " credible " was used as the equiva-
lent of "competent," so that the question in such case is whether
the attesting witness was a competent witness. Warren v. Baxter,
48 Maine 193; Hawes v. Humphrey, ( .» Pick. 361; Haven v.
Howard, 23 Pick. L0 ; Carlton v. Carlton, 40 V II. 11.

Now, in thie case Bar! K. Smalley is not interested to sustain
the will, but rather in defeat it. When a witness is produced to

298 EXECUTION.

testify against his interest, the rule that interest disqualifies does
not apply. 1 Greenl. Ev., sec. 410. A legatee, one of several
heirs-at-law of a testator, the validity of whose will is in question,
may be called as a witness in support of a will, when his interest
is manifestly adverse to that of the party calling him. Clark v.
Vorce, 19 Wend. 232. So, in Sparhawk v. Sparhawk, 10 Allen
155, an heir-at-law, who is disinherited by the will, is a com-
petent witness in its support. It is against his interest to sup-
port the will, and whether entirely or partially disinherited, the
same rule must apply so long as it is his interest to defeat the

will.

So if it stand indifferent to the witnesses, whether the will,
under which they are legatees, and to which they are witnesses,
be valid or not, the witnesses, though legatees, are " credible."
10 Bac. Abr. 525 of Wills D. When an attesting witness would
take the same interest under a former will to which he was not
a witness, as under i later will, he stands indifferent in point of
interest, and is a good witness to prove the latter will. 3 Stark.
Ev. 1692.

It is apparent that Bart K. Smalley, before any change of the
statute of 1821, was a credible, that is, a competent witness, be-
cause his interest would be adverse to the will.

When the word " disinterested " was inserted in the statute, as
opposed to interested, the result perhaps might be to exclude an
attesting: witness whose interest it was to defeat the will.

But whether so or not, when that word was stricken out, and
the attesting witness was required to be one not beneficially in-
terested under the will, the obvious intention was to exclude those
who were to receive a benefit under the will, not those who were
pecuniarily losers by its provisions. " The reason why a legatee
• is not a witness for a will being because he is presumed to be
partial in swearing for his own interest "; that reason ceases to
exist when his interest is dissevered by such will. Oxenden v.
Penrise, 2 Salk. 691.

One who is neither interested to defeat or sustain the will, may
well be deemed disinterested. An heir-at-law, who is disinherited
in whole or in part, is not disinterested in the result, for he has an
interest to defeat the will. Hence he is not disinterested in the
result.

COMPETENT WITNESS. — WIFE OF DEVISEE. 299

The change of language was to remedy or rather prevent such
conclusion. The witness beneficially interested under the will
was one gaining by and under its provisions. But an attesting
witness who is called to establish a will by which he is divested
of his inheritance can hardly be regarded as beneficially interested
by it, and so interested to maintain it. One losing an estate by a
will under which he is a legatee for a cent or a dollar, cannot in
any ordinary use of language be considered as a gainer — or bene-
ficially interested, unless a loss is determined to be a gain. As is
well remarked by Bigelow, C. J., in Sparhawk v. Sparhawk, re-
ferring to Haven v. Hilliard, 23 Pick. 10, where it was said to be
held that a witness might be incompetent when his interest was
adverse to the validity of the will : " certainly so far as it seems
to support the proposition that an heir-at-law, who is disinherited
in part or in whole by will, is incompetent as an attesting witness,
the case is contrary to well-established principles, and must be
overruled."

Undoubtedly, the object in giving this trivial legacy was to
guard against the witness taking a portion of the estate under the
provisions of sec. 9, by which a child omitted in the will may
have its share of the estate, unless such omission was intentional,
or such child had had its due proportion of the estate during the
life of the testator.

The decree of the judge of probate is reversed,
and a decree is to be entered that the will be
affirmed.

Walton, Barrows, Danforth, Libbey, and Symonds, JJ., con-
curred.

[Also Campbell v. Campbell (III.), 22 N. E. 620.]

COMPETENT WITNESS.— WIPE OF DEVISE]
Sullivan v. Sullivan.

Massachisi ii- Sltukmb Judicial Court, 1871.

(106 Mass. -IT:..)

Gray, J. — This is an appeal from a decree of Mr. Justice
\\ ells, by which a decree of the probate court, allowing as the
will oi Margaret Sullivan an instrumi nl which contained a devise

to Thomas Sullivan, and to which his wife was one of the three

300 EXECUTION.

attesting witnesses, was reversed ; and the only question is,
whether upon these facts she was a competent attesting witness
to the will.

By the law of this Commonwealth, a will must be attested by
three competent witnesses, that is to say, witnesses who at the
time of the attestation would be competent by the rules of the
common law to testify concerning the subject matter. Hawes v.
Humphrey, 9 Pick. 350 ; Rev. Sts., c. 62, sec. 6, and commission-
ers'' note ; Gen. Sts,, c. 92, sec. 6 ; Sparhawk v. Sparhawk, 10 Al-
len 155, 150. And " all beneficial devises, legacies, and gifts
made or given in any will to a subscribing witness thereto, shall
be wholly void, unless there are three other competent witnesses
to the same." Gen. Sts,, c. 92, sec. 10.

It is admitted that a wife cannot be deemed a competent wit-
ness to a will containing a valid devise to her husband. But it is
contended that, within the reason and effect of the section last
quoted, a devise to her husband is a beneficial devise to her, and
is therefore void, leaving her a competent attesting witness to the
will, and the will itself valid in all other respects. And this po-
sition, though doubted by a majority of the Supreme Court of
Connecticut in Fortune v. Buck, 23 Conn. 1, is supported by
earlier decisions in New York and Maine. Jackson v. Woods, 1
Johns. Cas. 163; Jackson v. Durland, 2 Johns. Cas. 311; Wins-
low v. Kimball, 25 Maine 493.

But with great respect for the learning and ability of the courts
which made those decisions, and after carefully weighing the ar-
guments in support of the construction contended for, we are
unanimously of opinion that it is founded rather upon a conjec-
ture of the unexpressed intent of the legislature, or a considera-
tion of what they might wisely have enacted, than upon a sound
judicial exposition of the statute by which their intent has been
manifested. The only devises which the statute declares to be
void are beneficial devises to a subscribing witness. It does
not avoid even a devise to a subscribing witness, which gives him
no beneficial interest, as, for instance, a devise to an execu-
tor, for the exclusive benefit of other persons. Wyman v.
Symmes, 10 Allen 153 ; 1 Jarman on Wills, 65. It does not
avoid any devise to and for the benefit of any person other
than a subscribing witness, even if a subscribing witness would

COMPETENT WITNESS. — WIFE OF DEVISEE. 301

incidentally take some benefit from the devise. In order to
maintain the position contended for, it would be necessary to
declare void, not merely the interest which the wife, who was a
subscribing witness, would take, by way of dower or otherwise,
in the property devised to her husband, but also the whole devise
to and for the benefit of the husband himself, who was not a sub-
scribing witness, and whose estate the statute does not assume to
reach.

Our conclusion is fortified by a consideration of the history of
the legislation upon this subject in England and in this Common-
wealth.

The English statute of frauds required wills devising lands to
be attested and subscribed in the presence of the devisor by three
or four credible witnesses. St. 29 Car. II., c. 3, sec. 5. And that
provision was re-enacted here in the first year of the Province.
Prov. St. 4 W. & M. (1692-3), c. 15, sec. 3; 1 Mass. Prov. Laws
(State ed.) 46 ; Anc. Chart. 235.

In Holdfast v. Dowsing, 2 Stra. 1253, where a testator charged
all his estate, real and personal, with legacies to one of the sub-
scribing witnesses and to his wife, and with an annuity to the
wife, the Court of King's Bench held that the statute of frauds
certainly meant that the " credible witnesses" should not be such
as claimed a benefit by the will ; and that, even if the tender to
the husband, at the trial, of the amount of the two legacies, would
remove the objection on that ground (which the court thought it
would not), yet the charge upon the real estate of the annuity to
the wife made the husband an incompetent witness. Although
the doctrine as to the legacies has been since controverted in Eng-
land upon the ground that the competency of the witnesses was
t<> be determined at the time of the proof, and not at that of the
execution of the will, the incompetency of either husband or wile
to be ;i witness to a devise to the other, which the witness could
not release, has never been doubted. Windham v. Chetwynd, 1
Burr. 414, 424; s. c. 1 W. Bl. 95, 100; Bui. N. I'. 265. The
case of Holdfast v. Dowsing was taken by writ of error to the
exchequer chamber, and after argument and before judgment
there was compromised by the parties; and gave occasion to the
St. of 2:, Geo. II.. e. 6; 1 W. HI. 8; I Ves. Sen. 503; 2 Bl. Com.
377. The reason of this, as stated by Sir William Blackstone in

302 EXECUTION.

his Commentaries, was, that the determination in the King's
Bench ' k alarmed many purchasers and creditors, and threatened
to shake most of the titles in the kingdom that depended upon
devises by will "; because it " would not allow any legatee, nor by
consequence a creditor, where the legacies were charged on the
real estate, to be a competent witness to the devise."

The St. of 25 Geo. II., c. 6, accordingly provided, in sec. 3,
that to the execution of wills already made any attesting witness
to whom any legacy was given, whether charged upon lands or
not, might be admitted as a witness, upon payment, release, or
tender of his legacy ; and, by sees. 1, 2, that in future wills any
attesting witness " to whom any beneficial devise, legacy, estate,
interest, gift, or appointment of or affecting any real or personal
estate " (except charges on lands for payment of debts) " shall be
thereby given or made," should be admitted as a witness to the
will, within the intent of the statute of frauds, and " such devise,
legacy, estate, interest, gift, or appointment shall, so far only as
concerned such person attesting the execution of such will, or any
person claiming under him, be utterly null and void "; and that
charges of debts upon lands should not make any creditor an in-
competent witness. All these provisions were re-enacted in our
St. of 1783, c. 24, sees. 11-13 ; and the provision of St. 25 Geo.
II., c. 6, sec. 3, and St. 1783, c. 24, sec. 13, for removing the in-
terest of a witness by payment, release, or tender, was omitted
in the revision of our statutes in 1836. But neither the St. of 25
Geo. II., nor the St. of 1783, contained any provision as to de-
vises to the wife or husband of an attesting witness, notwithstand-
ing the general attention which had been called to the subject by
the case of Holdfast v. Dowsing.

In 1822, a case was brought before the Court of King's Bench,
in which a testator devised, upon the determination of an estate
for life, an estate in fee to the wife of one of the attesting wit-
nesses, and the wife died before the determination of the life
estate. It was argued, that, if before the St. of Geo. II. the husband
would have been an incompetent witness, the clear intent of that
statute was to restore the competency of the attesting witness in
all cases of benefit arising to him under the will, and to avoid the
will " so far only " as concerned the person attesting the execu-
tion, or any person claiming under him ; and since that statute,
therefore, no will could be void by reason of interest arising un-

COMPETENT WITNESS.— WIFE OF DEVISEE. 303

der it to any attesting witness, further than regarded the interest
of such witness or any person claiming under him ; and conse-
quently the will was duly attested. To which it was answered
that the St. of Geo. II. applied only to cases where the interest
taken under the will was destroyed by the statute itself; that the
husband took no estate under the will, and by operation of law
he in right of his wife derived a beneficial interest from that
estate, which they might have sold during her life, and which
would have given him an estate by the curtesy if she had survived
the life tenant ; but that the estate of the wife was not destroyed
by the statute, and consequently the derivative beneficial interest,
which the husband took in right of his wife only, was not extin-
guished ; and that, independently of the question of interest, it
was a general rule that a husband or wife could not in any case
be a witness for the other, as was held in Davis v. Dunwoody,
4 T. R 678. And the court was of opinion that the will w T as not
duly attested. Hatfield v. Thorp, 5 B. & Aid. 589. The point
thus adjudged upon the application of the St. of Geo. II. is
summed up by Mr. Jarman as follows: "That it applied only
when the witness took a direct interest under the will, and not
when it arose consequentially. Thus in Hatfield v. Thorp, where
one of the three attesting witnesses to a will was a husband of a
devisee in fee of a freehold estate, and would jure uxoris have
derived an interest in the lands, it was held that the devise was
not within the statute, and consequently that the attestation was
insufficient." And such continued to be the law in England
until 1837, when the St. of 1 Vict., c. 26, extended the disqual-
ification to take beneficially under the will to the husband or wife
of the attesting witness. 1 Jarman on Wills, 65-67. [nneitherof
the revisions of our own statutes in 1836 and 1860, is any express
provision introduced upon this point. Rev> Sts., c. 62, sec. 6 ;
Gen. St-., c. 92, sec. <'». And the statutes removing the objec-
tions to the competency of witnesses on the grounds of interesl
and of tli.' relation of husband and wife are expressly declared
not to apply to attesting witnesses to a will or codicil. Gen. Sts.,
c. 131, sec. 15; St. |s;o. c . :;'.»::, sec. 2.

The resull is, thai the decree reversing the decree of the pro-
bate '•ourt is to be affirmed, and the

W'll.l. NOT AltMITTKD To I'litill \ IK.

[Compare the following two cases.]

304 EXECUTION.

COMPETENT WITNESS.— WIFE OF LEGATEE.
Hawkins v. Hawkins et al.

Iowa Supreme Court, 1880.
(54 la. 443.;

Rothroclc, J. — W. H. Hawkins was directly interested in the
will as a legatee, and being a subscribing witness thereto he could
derive no benefit therefrom, unless there were two other competent
and disinterested witnesses. Section 2327 of the Code provides
that, " no subscribing witness to any will can derive any benefit
therefrom unless there be two disinterested and competent wit-
nesses to the same."

The only question to be determined then is, was T. C. Haw-
kins, the wife of W. H. Hawkins, a disinterested and competent
witness? That she was a competent witness in the general sense
cannot be disputed. By section 3636 of the Code it is provided
tliat ''every human being of sufficient capacity to understand the
obligation of an oath is a competent witness in all cases, both civil
and criminal, except as herein otherwise declared." A married
woman, then, is a competent subscribing witness to a will. She
is not within any of the exceptions contained in the Code. If it
be said that she is not competent to establish that part of the will
which makes her husband a legatee, the answer is, by section 3641,
the husband or wife are, in all civil and criminal cases, competent
witnesses for each other.

Is the wife a disinterested witness? No person offered as a
witness is incompetent by reason of his interest in the 'event of
the action or proceeding, except in certain cases. Code, sec. 3638,
This section is qualified by section 2327, which requires that a
legatee or devisee, who is a subscribing witness to a will, can de-
rive no benefit therefrom unless there be two disinterested and
competent subscribing witnesses. Our statute nowhere defines
the interest which disqualifies a witness. See the general statute
upon the subject. J^o such definition was necessary, because, as
we have seen, interest does not, in general, disqualify. We are,
then, to inquire whether, under the common law, modified by
our statute making the wife a competent witness, has she such an
interest in the legacy given by the w r ill to her husband as to ex-
clude her as a witness ? In 1 Greenleaf on Evidence, sec. 386,

COMPETENT WITNESS. — WIFE OF LEGATEE. 305

it is said : " This disqualifying interest, however, must be some
leo-al, certain, and immediate interest, however minute, either in
the event of the cause itself or in the record as an instrument
of evidence in support of his own claims in a subsequent action.
It must be a legal interest, as distinguished from the prejudice or
bias resulting from friendship or hatred, or consanguinity, or any
other domestic or social, or any official relation, or any other mo-
tives by which men are generally influenced ; for these go to the

credibility." ....

Again,"in section 390, it is said : " The true test of the interest
is, that he will either gain or lose by the direct legal operation

and effect of the judgment It must be a present, certain,

and vested interest, and not an interest uncertain, remote, or con-
tingent." See, also, Cutter v. Fanning, 2 Iowa 580.

We think that by these rules the wife was a disinterested wit-
ness. She had no present, certain, and vested interest in the
legacy given to her husband. It was remote and contingent. It
will be observed that this is not a devise of real estate. The will
contemplates that whatever real estate there may be shall be sold
to pay the legacies. Now the wife has no present, vested interest
in such a legacy to the husband. It is his own to dispose of at his
pleasure, and there are many contingencies which may intervene
to prevent the wife from ever acquiring any part of it.

We think that the wife was a competent and disinterested wit-
ness, and that the court erred in excluding her testimony as ap-
plicable to the legacy of her husband.

Reversed.

[Compare the preceding and following cases.]

COMPETENT WITNESS.— WIFE OF LEGATEE.
Winslow v. Kimball.

Maink Supkkme Judicial Court, 1846.
(25 Maine 498. )

The opinion of the court was drawn up by
WM6mcm f C.J.— Thisisan appeal from thedecreeof the judge
of probate, for tin- county, approving the will of A.. <! Winslow,
deceased. The instrumenl was subscribed as usual by three at-
testing witnesses. Bui one <>i' them was the wife of h Legatee in
20

306 EXECUTION.

the will. And it is insisted, that this is not a case within the Rev.
Stat. c. 92, sec. 5, rendering bequests to subscribing witnesses void,
as the wife was not a legatee ; and it must be admitted, that, nomi-
nally, she was not ; and, upon a construction strictly literal, the
ground relied upon might be tenable. But statutes are to receive
such a construction as must evidently have been intended by the
legislature. To ascertain this we may look to the object in view ;
to the remedy intended to be afforded ; and to the mischief in-
tended to be remedied. The object in view in the provision in
question clearly was to prevent wills from becoming nullities, by
reason of any interest in witnesses to them, created entirely by
the wills themselves. No one can doubt, if it had occurred to the
legislature, that the case before us was not embraced in the enact-
ment, that it would have been expressly included. It was a mis-
chief of the precise kind of that which was provided against ; and
we think may be regarded as virtually within its category.

Accordingly, in New York, where the statutory provision, in
this particular, is the same as in this State, a devise or legacy to
the husband or wife, the other being a witness to the will be-
queathing it, is held to be void, upon the ground, as expressed by
one of the judges of the court there : " that the unity of husband
and wife, in legal contemplation, is such, that, if either be a wit-
ness to a will, containing a devise or legacy to the other, such
devise or legacy is void, within the intent of the statute "; and
upon the ground, that the statute concerning wills should receive
a liberal construction, and one consistent with common sense.
Jackson v. Wood, 1 Johns. Cas. 163; Jackson v. Durland, 2 lb.
314.

The decree of the Judge of Prolate affirmed.

[Compare the preceding two cases.]

COMPETENT WITNESS.— MEMBER AND PEWHOLDER IN A

CHURCH BENEFICIARY.

Warren v. Baxter.

Maine Supreme Judicial Court, 1859.
(48 Maine 193.)

On agreed statement. [Under the will of James Warren,
the Methodist Church in Gorham Village was a beneficiary.]

COMPETENT WITNESS.— PEWHOLDER IN A CHURCH. 307

The opinion of the court was drawn up by

jRice, J. — The only question presented for our determination is,
whether the will of James Warren was duly attested by three dis-
interested and credible witnesses.

It is agreed that two of the witnesses to the will, Johnson and
Pond, are now, and were at the time of the witnessing of the will,
members of the Methodist Episcopal Church and Society, wor-
shipping at the Methodist meeting-house, in Gorham Village, and
that each owned one or more pews in said meeting-house, and
that the other witness, Bailey, owned a pew in said meeting-house
and attended the services there.

It does not appear whether this society was, or not, an incor-
porated society.

By sec. 2, c. 92, stat. of 1841, wills were required to be attested
by "three credible witnesses." By sec. 1, c. 74, stat. of 1857, they
are required to be attested by "three disinterested and credible
witnesses."

In Massachusetts it has been decided, that the term "credible
witness," as used in the statute of wills, means competent witness.
That is, a witness whom the law will trust to testify before a jury.
Amory v. Fellows, 5 Mass. 219 ; Ilawes v. Humphrey, 9 Pick.
361 ; Haven v. Hilliard, 23 Pick. 10.

As the law stood under the statute of 1841, persons deficient
in understanding, and persons having a direct pecuniary interest
in the matter in issue, were not deemed competent witnesses, and
wen' not permitted to testify in courts of justice.

The will which is now the subject of controversy was executed
.Ian. 2, 1858, since the It. S. of 1857 were in operation. The
question of the competency of the witnesses to the will is to be
determined by their condition at the time the will was executed.
Patten v. Tallman, 27 Maine 17.

By sec. 78 of c. 82, \l. S. 1857, parties and others having a di-
rect pecuniary interest in the matter in issue are rendered compe-
tent witnesses in courts. But, by sec. 80, of same chapter, this
provision ie restrained, so that it shall not apply to the attestation
of the execution of las I wills and 1 1 •, t an lei 1 1 .-, or of any oilier in-
strument which by law is required to be attested.

The law, therefore, now stands, so far as the question of the
competency of the witnesses to the will of the testator is con-

308 EXECUTION.

cerned, as it would have stood bad the law of 1841 been in force
and required the witnesses to the will to be disinterested and
credible.

The interest which will disqualify a person from being a wit-
ness must be a present, certain, legal, vested interest, and not un-
certain or contingent. 4 Stark. Ev. 745.

The privilege of attending public worship and the advantages
of education, although of the highest importance, do not consti-
tute such an interest as will disqualify a witness. Hawes v.
Humphrey, 9 Pick. 350.

There is nothing in this case to show that the legal rights of the
attesting witnesses, or either of them, is in the slightest degree
affected by these provisions in the will. The fact that two of the
attesting witnesses were members of the Methodist Episcopal
Church and Society, worshipping in the Methodist meeting-house,
in the Gorham Corner village, and that all three of them owned
pews in that house, does not, of itself, create in them any direct,
certain, legal, vested personal interest in the legacy of the testator.
It does not appear that there exists in that society any right to tax,
or in any way to impose any legal liability upon the witnesses, or
that, by their connection with the society, they in any way obtain
any rights to the property bequeathed to the society. Their con-
nection with the society may be, and, so far as appears, is entirely
voluntary.

The presumption of the law being that all persons of full age
are competent to be witnesses, the burden rests on those alleging
incompetency to show the fact. That has not been done in this
case.

The attesting witnesses are, therefore, within the meaning of
the statute, " disinterested and credible," or in other words com-
petent witnesses.

Decree of the Judge of Probate affirmed.

[See also Marston v. Judge, 79 Me. 25, where an inhabitant of
a town, beneficiary, was held competent.]

CHAPTER IV.
REVOCATION AND REPUBLICATION.

Evert will is ambulatory during testator's life, — that is, he may
freely change or annul it at any time. 1 Changes are effected by
codicils, whose purpose is to leave the old will standing at least in
part, and to add further, or different, or inconsistent provisions,
or to merely annul a portion of the will. 2 But when the entire
will is annulled, it is said to be revoked. 3 This revocation may be
effected in a number of ways. The subject is covered by statutes,
which, in the several jurisdictions, vary a good deal from one an-
other both in the terms in which they are expressed and in the
particular provisions for revocation which they enumerate. In
each case the local statute must be consulted. The following
statement sets forth the leading ways in which a will may be re-
voked in some or all of our States.

1. Revocation by a subsequent duly executed will. 4 Here
there are two classes of cases : first, where the later will expressly
revokes the earlier, and second, where its provisions are in fact
such as to completely supersede those of the earlier. 5 If the later
will does not in terms revoke the earlier, and the earlier contains
provisions not inconsistent with the later, and not duplicated by

! In order to revoke :i will, testator must be of sound mind. Scruhy v. Ford-
ham, 1 Add. 74; and not subject to undue influence, Rich v. (Jilkey, 7:5 Me.
595. Undue influence, to nullify revocation, must exist at the very time of the
act of revocation. Reichenbacb v. Ruddach (IYnn.), IS All. Rep. 482.

" Sykes v. Bykes, I,. R. i Eq. 200 ; Wetmore v. Parker, 52 1ST. V. 460.

■ Sometimes a codicil is so inseparably connected with the will that a revoca-
tion of the will necessarily revokes the codicil too. Coppin v. Dillon. -1 Bagg.
- i * 5 1 (869). Bui tin's result does not follow if the codicil is of such :i character

as to be enforceable alone. Tagarl v. Eooper, l Curt. 289 (294); Gardiner v.
Conrthope, 12 P. D. it.

4 A written will cannot be revoked by a nuncupative will. McCunev. House,
8 Ohio I 11.

Re Fisher, 4 Wis. 254.

(1109)

310 EEVOCATION AND REPUBLICATION.

it, then the later will is really a codicil to the earlier, and the two
taken together constitute testator's last will. 1

2. Revocation by some other instrument in writing executed
in the manner prescribed for the execution of wills. This only
differs from the preceding case in that here the instrument is de-
voted exclusively to the declaration revoking the will, 2 and results
in revoking the will in whole or in part according to its terms.

REVOCATION BY WRITING.— ESSENTIALS.
Nelson vs. The Public Administrator.

Surrogate's Court, New York County, New York, 1852.

(2 Bradf. 210.)

Bradford, S. — Letters of administration were issued on the
estate of deceased to the Public Administrator. Subsequently,
four unattested wills, three others apparently duly executed, and
several papers of revocation, were discovered. The latest of the
executed wills is dated February 3, 1840, and that is the instru-
ment now offered for proof. Its execution is formally proved by
the depositions of the subscribing witnesses ; but it is urged that
it has been revoked. Three of the alleged revocations are wills
signed but not attested, and three are mere declarations of revo-
cation, subscribed by the testator, but without the names of sub-
scribing witnesses. They run in this way, " I, James Matheson,
etc., do hereby abrogate and revoke all testaments, wills, or codi-
cils I have, or might heretofore have made," etc. " I, James
Matheson, who have made and wrote and signed the within, my
last will and testament, do hereby rescind and revoke this my
last will and testament, and all or any other wills and testaments
or codicils of wills, formerly or heretofore made by me," etc.
" I hereby rescind and revoke these my last wills and testaments,
or any other wills and testaments or codicils of wills formerly or
heretofore made by me." The first of these was on a separate
sheet of paper, the second on what appears to have been a wrap-

1 Doe dem. Strickland v. Strickland, 8 C. B. 724 (745). Two inconsistent
wills of the same date are void for uncertainty so far as inconsistent, in absence
of further light as to order of execution. Phillips v. Anglesey, 7 Bro. H. L.
Rep. (Bro. P.C.)443.

5 2 N. Y. R. S. 64, sec. 42.

REVOCATION BY WRITING. — ESSENTIALS. 311

per, and the third on the back of a will executed in 1839. They
are all posterior in date to the will propounded for proof. They
express, as strongly as anything can, a determination to rescind
every instrument of a testamentary character ever executed by
the testator; and they express this repeatedly, showing a con-
tinued and earnest intention to revoke. They show that the tes-
tator supposed the mere writing and subscribing them was suffi-
cient to constitute a present operative act of revocation, and that
his will executed in 1840, was not conformable to his subsequent
wishes. But notwithstanding this mistaken supposition, and this
undeniable evidence of an intention to revoke all wills, the law
must govern, though the rules adopted for wise and salutary pur-
poses may seem hard in this particular case. The statute is just
as rigid on the subject of written revocations as in regard to the
execution of wills. A revocation in writing, to be valid, must be
"executed with the same formalities with which the will itself
was required by law to be executed." The testator might have
revoked by burning, tearing, cancelling, obliterating, or destroy-
ing; but he selected the mode of revocation by writing, and has
failed in accomplishing his object from want of the necessary
formalities. "What would be the effect of a written declaration
of revocation upon an executed will — whether it could be re-
garded as a present attempt at cancellation — it is not necessary to
consider; for the will upon which one of these revocations was
written is anterior in date to the one propounded. I see no room,
therefore, for any argument on the subject: the terms of the
statute are clear and unequivocal ; the testator has adopted a man-
ner of revocation in which be has failed to comply with the law,
and these informal acts have no legal validity. The will must,
therefore, be decreed to have been duly proved.

3. Revocation by marriage of testatrix. 1

1 2 Blackst Comm. 499. Ellia v. Darden, 86 Ga. 868. In sonic States the
will of ii man is al>o revoked by his subsequent marriage. III. R. S eh. 89,
• 10; Va. Code, § 2517. Ami in others, marriage does not revoke the previous

will of either a man or a woman. Ohio R. S., g 'tU'tH.

312 REVOCATION AND REPUBLICATION.

REVOCATION BY MARRIAGE.
Stewart v. Powell.

Kentucky Coubt of Appeals, 1890.

(14 S. W. Rep. 496.)
Appeal.

Pryor, J. — James Stull, of Webster County, married a Mrs.
Burkley, and prior to the marriage entered into a contract fixing
the right of property by reason of the marital relation. He gave
to her a tract of land and some personal property during life, and
at her death he directed by a will written at the same time, that
the property should pass to one of his daughters, Mrs. Stewart,
theii Lily Stull. The marriage was consummated some four or
five months after the contract had been entered into, but after-
wards annulled by the decree of the chancellor, in which a divorce
was granted. In the execution of the will, or as a part of its
contents, he " wished the contract carried out and observed," but
that contract by a court of competent jurisdiction has been can-
celed, and the parties left as if the marriage relation had never
existed. The will was offered for probate, and rejected in the
circuit court, on the ground that the marriage revoked it. The
statute provides : " Every will made by a man or woman shall be
revoked by his or her marriage, except a will made in exercise of
a power of appointment when the estate thereby appointed would
not, in default of such appointment, pass to his or her heir, per-
sonal representative, or next of kin." In this case, the will and
the antenuptial contract were both executed long before the
parties became man and wife, nor did the will in any manner
affect the lights of Mrs. Burkley under the antenuptial agree-
ment, and the case stands as if the will had been executed prior
to the marriage, and in the absence of any contract whatever.

The case of Stewart v. Mulholland, reported in 88 Ky. 38", 10
S. W. Rep. 125, was the will of a woman made at the time of
the marriage under an agreement with her husband that it should
be made ; and while the antenuptial contract, the will, and the
marriage were all executed on different days, they were so near
each other, and each directly relating to the same matter, that this
court held them to be simultaneous transactions. It was the
wife's estate disposed of by the consent of her husband, and in

REVOCATION BY MARRIAGE. 313

the execution of a power conferred on her by that agreement ;
in fact the property should be regarded as her separate estate
under such circumstances. This court referred to Osgood v. Bliss,
141 Mass. 474, 6 N. E. Eep. 527, and to Will of Ward, 70 Wis.
251, 35 X. W. Rep. 731, under statutes similar to the statute of
this State, where the will of the married woman was sustained.
We find no ruling to the contrary. The wife, when laboring
under the disability of coverture, has no power to make a will,
while the husband may at all times, if competent to do so, dispose
of his property by will, subject to the right of his wife to such
part of his estate as the law gives her at his death ; but, as to the
wife, she is powerless, unless in the exercise of some power con-
ferred on her, or in the disposition of her separate estate, which,
although general estate before the marriage, may become separate
estate by reason of an antenuptial contract giving to the wife the
power to dispose of it as if she was & feme sole. In Stewart v.
Mulholland the court was discussing the powers of a married
woman to make a will, and did not adjudge in that case that the
will was executed before the marriage, but, in effect, held that it
was simultaneous with the marriage, and made in pursuance of
the contract made by the husband and wife, by which the power
to devise was given. The language, in the opinion of Stewart v.
Mulholland, to the effect, " the marital right having been settled
by their agreement, and no one else being directly or indirectly
interested but the husband, why should it be revoked?" was
applied to the case then before us, where the feme was empowered
to make a will that, by the contract, conferred on her the power
to dispose of it as her separate property. In our opinion, the
marriage in this case revoked the will ; and the judgment reject-
ing the paper as the last will of James Stall is arKrmed.

REVOCATION BY MARRIAGE.— STATUTORY RIGHTS OF MAR-
RIED WOMEN.

George A. Emery, Appellant.

Maine Si tkimi, Judicial Coukt, 1889.
(81 Maine 275.)
Facts aqbeed.

Will of Mrs. Esther Hunt.

Walton, .1. Tlic ijuestion la whether the common-law rule,

314 REVOCATION AND REPUBLICATION.

that the will of a feme sole is revoked by her marriage, is now in
force in this State. We think it is not. The rule was an out-
growth of the doctrine that the marriage of a feme sole destroyed
her testamentary capacity. After her marriage she could neither
make nor revoke a will. A will already made, if allowed to
remain valid, would make a permanent disposition of her prop-
ertv. This would be contrary to the very essence and nature of a
will. It would cease to be ambulatory. It was therefore resolved
that the marriage of a feme sole should, by operation of law,
revoke all existing testamentary dispositions of her property.
But, in this State, the marriage of a feme sole does not now de-
stroy her testamentary capacity. In this particular the common
lawis not now in force. It has been abrogated by the legislature.
A married woman can now make, or alter, or revoke a will, as
fully and as freely as if she were not married. Why, then, should
her marriage revoke a pre-existing will? We think it should not.
Cessante ratione legis, cessat ipsa lex. Reason is the soul of
the law, and when the reason of any particular law ceases, so does
the law itself. In England it is now enacted that the marriage
of either a man or a woman shall revoke a pre-existing will, unless
it is executed under a power of appointment. In New York
they have a statute which declares in express terms that the mar-
riage of a woman shall revoke a pre-existing will. In Massachu-
setts they have a statute which, as construed by the court, has the
same effect. Similar statutes exist in several other States. Where
such statutes exist, the question we are now considering cannot
arise. In other States, where the testamentary laws and the
rights and powers of married women are similar to those now
existing in this State, it has been held that the marriage of a
feme sole will not revoke a pre-existing will. It is said in a New
Hampshire case that when the incapacity of a married woman to
make a will is removed, no reason remains why her will, made
before her marriage, should be thereby revoked. Morey v.
Sohier, 63 K H. 507 (2 K E. Eep. 274). And see Fellows
v. Allen, 60 N. H. 439; Webb v. Jones, 36 N. J. Eq. 163.
Ward's Estate (Wis.), 35 N. W. R. 731. Carey's Estate, 49 Yt.
236. Our statutes recognize the fact that a will may be revoked
by operation of law from a change in the condition or circum-
stances of the maker (R. S., c. 74, sec. 3), but they are silent as

REVOCATION BY MARRIAGE. 315

to what the changes or circumstances are, which shall have that
effect. If the marriage of &feme sole now, as formerly, destroyed
her testamentary capacity, the change in her condition and cir-
cumstances would now, as then, also destroy the validity of an
existing will. But such is not now the effect of a marriage. In
this State, a feme covert can make or revoke a will as freely as a
feme sole; and the reason no longer exists for holding that the
will of a feme sole will be revoked by her marriage. It will not
be. The decree of the probate court holding the contrary was
erroneous, and must be reversed.

Decree reversed.

[Also Re Tuller, 79 111. 99 ; Webb v. Jones, 36 K J. Eq. 163
(165); Fellows v. Allen, 60 N. H. 439 (441); Noyes v. South-
worth, 5."> Mich. 173; Morton v. Onion, 45 Vt. 145; Carey's
Estate, 49 Vt. 236 (250); Miller v. Phillips, 9 R. I. 141.

Compare the case above given with the following case.]

REVOCATION BY MARRIAGE.— STATUTORY RIGHTS OF MAR

RIED WOMEN.

Brown et al. v. Clark et al.

New York Court of Appeals, 1879.
(77 N. Y. 309.)

Application for probate. The surrogate of Monroe County de-
nied the application. On appeal his decree was reversed by the
General Term, and this appeal was then taken.

.Mary J. Clark, th ■ testatrix, executed her will August 25,
1873. She afterwards married, and on October 1, 1877, she died.
Several questions were raised on the appeal.

Andrews, J. (Attn- finding that the will was duly executed.)

We concur in the conclusion reached by the surrogate thai the
will was revoked by the subsequenl marriage of the testatrix. It
w;i, the ride of the common law that the marriage of a woman
operated a an absolute revocation of her prior will. (Force and
Benibli tig's Case. I C<>. 61.) Hie reason of the rule is stated by
Lord Chancellor Thurlow in Hodsden v. Lloyd (2 Bro. Oh. 534).
Eesays: "It is contrary to the nature of the instrument, which
must be ambulatory during the life of the testatrix; and as by

316 • REVOCATION AND REPUBLICATION.

the marriage she disables herself from making any other will, this
instrument ceases to be of that sort, and must be void." The rule
that the marriage of a feme sole revoked her will was made a
part of the statute law of this State by the Revised Statutes. (2
R. S. 64, sec. 44.) The language of the statute, that the will of
an unmarried woman shall be deemed revoked by her subsequent
marriage, is the declaration of an absolute rule. The statute does
not make the marriage a presumptive revocation which may be
rebutted by proof of a contrary intention, but makes it operate
eo instanti as a revocation. (4 Kent, 528.) It is claimed by the
contestants that the testamentary capacity conferred upon married
women by the recent statutes in this State takes away the reason
of the rule of the common law, and that upon the maxim ces-
sante ratione legis, cessat lex ipse, the rule should be deemed to
be abrogated. Upon the same ground it might have been urged at
common law that the marriage of a feme sole should only be
deemed a revocation or suspension of her prior will during the
marriage, and that when the woman's testamentary capacity was
restored by the death of her husband, leaving her surviving, the
will should be revived ; but the contrary was well settled. (Force
and Hembling's Case ; 1 Jarman, 106 ; 4 Kent, 598.) But the
courts cannot dispense with a statutory rule because it may appear
that the policy upon which it was established has ceased. The
married women acts confer testamentary capacity upon married
women, but they do not undertake to interfere with or abrogate
the statute prescribing the effect of marriage as a revocation. It
was quite consistent that the legislature should have intended to
leave the statute of 1830 in force although the new statutes took
away the reason upon which it was based. The legislature may
have deemed it proper to continue it for the reason that the new
relation created by the marriage would be likely to induce a
change of testamentary intention, and that a disposition by a mar-
ried woman of her property by will should depend upon a new
testamentary act after the marriage.

[The judge here considers the effect of a codicil executed by
testatrix after her marriage, and finds that it was effectual to re-
publish the will, and that there was no proof of undue influence.]

All concur.

Order affirmed.

REVOCATION BY MARRIAGE OF A WIDOW. 317

[To the same effect, Swan v. Hammond, 138 Mass. 45 ; Nutt v.
Norton, 142 Mass. 242.

Compare the preceding case given above.]

REVOCATION BY MARRIAGE OP A WIDOW.
matter of Kaufman.

New York Court op Appeals, 1892.
(131 N. Y. 620.)

Appeal to the Court of Appeals.

Gray, J. — This will was made by the deceased while she was
the widow of one Dillon. She subsequently intermarried with
Kaufman and died, leaving him surviving. The executor ap-
pointed in this will offered the instrument for probate: but was
opposed in his proceedings by Kaufman, who claimed that the will
had been revoked by testatrix's marriage with him, and who has
been sustained in that claim by the surrogate and the General Term.
In their decisions those courts were clearly right, and we should
Bay nothing here, in disposing of this appeal, were it not for the
statement that there is no authoritative decision by this court upon
the particular question. We should suppose that the case of
Brown v. Clark, 77 N. Y. 369, was a sufficient authority in point;
although the testatrix in that case was a woman who had never
been married at all. For any discussion as to the operation of the
acts passed by the legislature of this State in relation to married
women and their effect in conferring upon them testamentary
capacity, reference may be had to that case.

The appellant attempts an argument upon the meaning to be
given to the words " unmarried women " in the statute, and seeks
to give substance to it by reference to some cases arising upon the
construction of wills and where the discussion bore upon the pre-
BUmed intention of the testator in his gifts or limitations of prop-
erty. Bul such cases can have no influence upon the question o\

what i- accomplished by the Revised Statutes in the provision

that "a will executed by an unmarried woman shall be deemed
revoked by her subsequent marriage." Pt. 2, chap. 6, tit. 1. art. ."».
It was a recognition of the common-law rule which, in the opera-
tion of flu- statute upon the civil status of tic married woman, is

unaffected by the enlargement of her legal capacities. At com.

318 REVOCATION AND REPUBLICATION.

mon law the feme sole, in marrying, merged her legal identity
in that of her husband. In the unity of person, caused by the
marriage relation, the wife lost the control of her property, and
hence of her will. Under our statutes that identity of person is
only affected, and separate legal capacity is only conferred upon
the wife to the precise extent mentioned in the enabling acts.
As we have repeatedly held, the common law has been no further
abrogated than is read in the statute. Nothing has been enacted
which alters the provision that her will is revoked by a subsequent
marriage. There is sufficient reason for the continuance of the
rule in the changed relations of the woman. Her new status as
wife induces the presumption of a new testamentary intention,
and^ demands a new testamentary act. The unmarried woman
referred to by the statute must be defined according to that rule
of statutory construction which requires that the words used in
legal enactments shall be understood and taken in their ordinary
and familiar significance. So read, the unmarried woman of the
statute is the woman who is not in a state of marriage. That the
legislature could have had any other idea is both inconceivable
and unreasonable.

The judgment below should be affirmed, with costs to the re-
spondent as against the appellant.

All concur.

[To the same effect, Blodgett v. Moore, 141 Mass. 75 ; Nutt v.
Norton, 142 Mass. 242.]

4. Revocation by testator's subsequent marriage and birth of
issue. 1 Both conditions must occur to effect revocation; but if
testator make provision in the will for future children, then his
marriage and their birth will not effect revocation. 2 And so, also,
if the will does not dispose of all his property. 3

« 2 Blackst. Coram. 376 ; Christopher v. Christopher, 4 Burr. 2182 note ;
Wellington v. Wellington, Id., at p. 2171 ; Marston v. Fox, 8 Ad. & El. 14;
Gay v. Gay, 84 Ala. 38.

2 Kenebel v. Scrafton, 2 East 530. (For a history of this class of cases see
Chancellor Kent's opinion in Brush v. Wilkins, 4 Johns. Ch. 510.) In wills of
real property it was held that the law worked the revocation in this case, and
so no evidence of testator's intent was admissible. Marston v. Fox, 8 Ad. &
El. 14. But as to personalty, see Fox v. Marston, 1 Curt. 494.

3 Kenebel v. Scrafton, 2 East 530, 2 N. Y. R. S. 64, §43.

PARTIAL REVOCATION. — POSTHUMOUS CHILD. 319

5. Revocation by subsequent birth of child unmentioned and
unprovided for. 1 In some States, the birth of a child after the
execution of the will, who is neither provided for nor mentioned,
results in a partial revocation of the will so far as to give him the
share he would have taken had the testator died intestate. 3 In
others the same event results, under some circumstances, in the
revocation of the entire will. 8 And sometimes similar provision
is made for cases where testator neglects to provide for children
even though they are living at the date of the will. 4

PARTIAL REVOCATION.— POSTHUMOUS CHILD.

John A. Waterman, Judge of Probate, vs. James J.

Hawkins et als.

Maine Supreme Judicial Court, 1873.

(63 Maine 156.)

Barrows, J. — One McGlinchy died February 2, 1869, leaving
a widow and father to whom he gave property in his will. Two
months after his death a posthumous child, for whose benefit this
suit on his executor's bond is brought, was born.

The testator devised and bequeathed to his wife, during her
life and widowhood, his house and land with the furniture and
other personal property on the premises — to become the pr6perty
of his heirs upon her death or marriage. To his father he gave
all his other property, wherever found or situate, specifying all
the property in and about his store, and all his horses, wagons,
and teams.

The widow seasonably waived the provision made in the will
for her, preferring to take her dower and allowance.

On the first Tuesday of May. IS71, the executor settled his
first account, showing a balance remaining in his hands not acces-
sary for the payment of debts or expenses of administration, of

1 Subsequent adoption of a child does not satisfy this provision. Davie v.
Fogle (In. i... 28 .V E. 860.

2 \ V R.S 85, sec. 49, as amended L. L869, c. 23; Mclntirev. Mclntire,
64 N. II 609.

For Id tance, Ohio R. S. §5959; Ah v. Ash, 9 Ohio St. 888; Evans v.
Anderson, r> Ohio St. 824 See Rhodes v. Weldy, 16 Ohio St. 284 ; [nd. K.
M • re' ed >, §2560; Bowers v. Bowers, 58 End. 480.
1 Mass. Pub. st. 750, sect. 81.

320 REVOCATION AND REPUBLICATION.

$557.39. Upon the first Tuesday of June following, the judge
of probate under R. S., c. 74, sec. 8, decreed to the posthumous
child, as not being provided for in the will, the sum of $371.50,
being two-thirds of the balance aforesaid, to be taken from said
residuum, which would otherwise have been the share of the tes-
tator's father, the residuary legatee. The decree was in precise
conformity with the statute provision ; for as the widow waived
the provision made for her in the will, none of the property,
whether specifically bequeathed or not, could pass by the will to
the prejudice of the claim of the posthumous child for her share;
and under these circumstances that share must, of necessity, all
come from that of the residuary legatee. The decree was not
appealed from. But upon demand made upon the executor in
behalf of the child, he declined to pay over according to the de-
cree, having allowed the property to go into the hands of the lega-
tee before the birth of the child. The presiding judge, to whom
the case was submitted, ordered judgment for the penalty of the
bond, and execution to issue for $371.50 and interest from the
date of the demand and legal costs.
The defendants except, claiming:

I. That the probate judge had no jurisdiction to make the de-
cree, because (they say) the child was provided for in the will,
in the clause which gives the reversion of the property devised
to the wife, to the heirs of the testator upon her death or mar-
riage ; and,

II. That, however this may be, the child's remedy is against
the legatee, who has got the property, and not against the execu-
tor and his sureties. We are clear that neither point is well
taken.

A child of a testator, born after his death, cannot, in any proper
sense of the term, be deemed " provided for in his will " by a gen-
eral devise of a reversion to the heirs of the testator.

There is nothing in such a provision to suggest that the child
was thought of by the testator. The form of expression would
indicate the contrary. To relieve the judge of probate from the
duty imposed in R. S., c. 74, sec. 8, there must be provision made
specifically for the unborn child. He cannot be disinherited like
a child, or the issue of a deceased child, when it appears that the
omission to refer to him was intentional. Unless he is " provided

LAPSE OF TIME. 321

for," the conclusive presumption is that he was not expected, and
the law declares that he shall take the same share of his father's
estate as if the father had died intestate. A general devise of a
reversion to the heirs of the testator constitutes no such provi-
sion. It would rarely be available for the support of the child
when support is most needed ; and while the insufficiency of the
provision in the will might not entitle the posthumous child to
claim a distributive share, in order to bar him, it must definitely
appear that some provision relating expressly to him was made.
Nor can the executor relieve himself, or his sureties, by showing
that he incautiously allowed the property to fall into the hands
of the legatee. He is responsible first and always for the proper
appropriation of the estate to the discharge of all legal claims
upon it.

When he settles his account, showing a balance to be legally
disposed of according to the order of the judge, it is no sufficient
excuse for the non-fulfilment of the decree that he had misappre-
hended his duty in the premises, and had allowed the property to
go where it did not belong. Even though it may have gone
wrong with the consent of the judge of probate, founded on er-
roneous information as to existing facts, it will not relieve the
accountant and his sureties who are responsible throughout for
the correctness of his doings. Williams, J. v. Cushing, Ex., 34
Maine 370.

Exceptions overruled.

6. Revocation by change of testator's circumstances. This is
not properly a separate division of the subject, for it covers by a
general term only particular changes of circumstances already
mentioned. It is named here because attempts have been made
to give it a wider scope.

LAPSE OF TIME.— CHANGE OF TESTATOR'S CIRCUMSTANCES.

Samuel Warner and wife VS. Kraaiim* I>. IScacli.

|£asba< in SBi i- Supreme Judicial Court, 1855.
(4 (J ray, 163.)

Sl,,ni\ ('. J. — This is an appeal by an heir-at-law, again.-t the

probate of the will of Claris Cooley. The ground is, thai the will
was revoked by lapseof time ami change of circumstances. These
21

322 E EVOCATION AND EEPUBLICATION.

circumstances are very peculiar in point of fact, and can hardlj
be expected to occur again.

The testator made his will, in due form and duly executed in
May, 1811, and died in 1854. It is not now contended that he
was not of sound mind when the will was executed, though it
was intimated in the reasons of appeal ; but it is found by the
case that he soon after became insane, and so continued to the
time of Ins death. When the will was made he had four daugh-
ters and two sons, and a third son was soon after born. Provision
was made in the will for the child thus expected, in the respective
contingencies of being a son or a daughter. By the will, after
making provision for his wife, and for a legacy of four hundred
and fifty dollars to each of his daughters, he gave all the residue
of his estate, real and personal, to his sons. The wife died in the
lifetime of the testator, also one of the daughters, leaving chil-
dren still surviving. These were all the changes which took place
in the testator's family. The real estate on which the will may
operate remains the same ; but has risen in value, by the general
advance in the money price of estate, to about twenty thousand
dollars, being about four times its value when the will was made.
It is remarkable that no greater changes occurred in such a family
during so long a course of years.

Our statute of wills, in providing that wills shall not be revoked
unless by cancelling, or by another will, etc., excepts revocation
implied by law, from subsequent changes in the condition and
circumstances of the testator. Rev. Sts., c. 62, sec. 9. What
those changes are the statute does not intimate ; it is left to be
decided by the general rules of law.

Where a partial revocation is set up, arising from a change in
the condition of the property devised ; as by an alienation of the
estate, Hawes v. Humphrey, 9 Pick. 350 ; or by a change in the
devisor's title or interest in it, Ballard v. Carter, 5 Pick. 112 ;
such revocation is easily deduced from the facts of each case,
under familiar rules of law. But an entire revocation by impli-
cation of law is limited to a very small number of cases. The
marriage of a feme sole is held to be a revocation of her previous
will [see cases on this point, ante], or at least a suspension ; for
there may be some doubt on that point, But in case of a man,
a rule has been adopted from the civil law, after some struggle,

LAPSE OF TIME. 323

but is now firmly established, that marriage and the birth of a
child shall be held to be an entire revocation. It is founded on
the presumption, that, if the will had been made under the altered
circumstances, it would not be made as it was. It might exclude
one who would be heir to the whole estate. Even after the rule
had gone thus far, it was still regarded as doubtful whether it
could extend to a posthumous child. But this, on great delibera-
tion, was held to be within the principle of the rule. Doe v.
Lancashire, 5 T. R. 49.

But where the facts, on which such revocation is ordinarily im-
plied, have been contemplated and provided for in the will, no such
presumption arises, and the will is not revoked. Kenebel v. Scraf-
ton, 2 East 530.

We state a few of these leading cases, and the principles on
which they are founded, to show how far the present case is from
coming within the exception of the statute of wills, respecting the
revocation of a will by implication of law, from the changed con-
dition of the testator. The death of the wife in the present case
could have no effect. She had a life interest only, and the death
of a devisee is a contingency always in view. The death of a
daughter, under any circumstances, could have no such effect ; but
in the present case her legacy would not lapse, as she left several de-
scendants, who would take it. Rev. Sts., c. 62, sec. 24. The birth of
a posthumous child could have no effect, for his birth was contem-
plated and provided for by the will ; besides, all children not pro-
vided for by will, including posthumous children, are provided for
by law. Rev. Sts., c. 62, sees. 21, 22. Bancroft v. Ives, 3 Gray 367.

2. The only other circumstances intimated as ground of revoca-
tion of this will, are the increase in value of the real estate, and
the long-continued insanity of the testator, which disabled him
from altering his will. The former circumstance alone would
have no weighl ; and it is only the great length of time, during
which this disability lasted, winch appears to give it any plausibility.
It is said that a will is ambulatory during the life of the testator,
because he may at any t iinc alter or change it. If this could be

held to mean that he must always have the capacity to revoke, it
would follow that any attack of insanity would operate as a revo-
cation, which would prove far too much. And we have no law,
do rule or maxim, intimating a distinctio i in this re ped between

324 REVOCATION AND REPUBLICATION.

the existence of insanity for a longer or shorter period of duration.
No case was cited by the counsel, and we are aware of none,
where any insanity after making a will is held to revoke the will.
In Force & Hem Wing's Case, 4 Co. 61 b, the court, in comment-
ing upon the ambulatory character of a will, to the end of life,
suspended in case of a woman who makes a will and marries, and
thus by her own act is disqualified by the disability of coverture,
say : " It would be against the nature of a will to be so absolute,
that he who makes it, being of good and perfect memory, cannot
countermand it. But when a man of sound memory makes his
will, and afterwards, by the visitation of God, becomes of unsound
memory, (as every man, for the most part, before his death is,) God
forbid that this act of God should be in law a revocation of his
will, which he made when he was of good and perfect memory."
This was not an adjudicated point in the case; but it was put by
way of illustration, as an unquestionable rule of law, and, as such,
is an authority entitled to respect.

The court are of opinion, that the decision of the probate court,
adjudging the will of Clark Cooley, under the circumstances,
not to have been revoked, was correct, and that the decree allow-
ing and admitting it to probate must be affirmed.

Decree affirmed.

7. Revocation by disposal of property affected. Sometimes a
testator having made his will, afterwards sells or gives away real
or personal property thereby devised or bequeathed. Such acts
of course nullify the practical operation of the will, either in part
or in full, but the instrument itself is not thereby revoked. 1

8. Revocation where the will is burnt, torn, cancelled, obliter-
ated, 2 or destroyed, with the intention of revoking it, either by

1 See 2 N. T. R. S. 65, sec. 48.

2 Under the Statute of Frauds, part of a will might be revoked by oblitera-
tion. Swinton v. Bailey, L. R. 1 Exch. D. 110. So under the present Eng-
lish Statute of Wills, if the part obliterated is rendered illegible.' Vict., c. 26,
§ 21. For cases of revocation of part by tearing, obliteration, etc., see In
Goods of Woodward, L. R. 2 P. & D. 206; Christmas v. Whinyates, 3 Sw. &
Tr. 81; Matter of Kirkpatrick, 22 N. J. Eq. 463; Clark v. Scripps, 2 Roberts.
563 (566). But under the present New York statute there cannot be a revoca-
tion of a part by obliteration. Lovell v. Quitman, 88 N. Y. 377.

LAPSE OF TIME. 325

testator himself, 1 or, under the terms of the controlling statute,
by another for him. 3 As on the other points, the statutes vary in
form.

The following instances illustrate general principles equally ap-
plicable, whether the method adopted be burning, or tearing, or
any other method where the intent to revoke is requisite. They
are followed by a statement of a number of principles applicable
respectively to the several methods under the present head :

(a). Revocation by destroying another instrument. Testator
called for his last will, and another was handed him. If he de-
stroyed this, believing it to be his will, with intent to revoke it
(which is a question fur the jury), then his act revokes the last
will. 3

(b). No revocation by any act unless such was the intention.
There must be an animus revocandi.* If testator should tear or
burn his will, thinking it to be another paper, and with no inten-
tion of revoking his will, there would be no revocation. 5 So,
where the testator destroys his will, under a misapprehension ; '
or begins to destroy it and desists before completing the intended
act of revocation.'

(c). It is sometimes said that it requires less capacity to revoke

1 If he revokes the will himself by tearing, etc., no witnesses are required for
the validity of the act. Timon v. Claffy, 45 Barb. 438.

1 If the controlling statute requires that where the act of tearing, etc., is done
by another, ii must be done in testator's presence, this requirement cannot be
waived by testator. Goods of Dadds, Dea. & Sw. 290. It is an essential requi-
site, like the requirement that witnesses must sign "in the presence of the
testator"; sen ante, p. 267 et sn/.

Pryor v. Coggin, 17 Ga. 414 ; Smiley v. Gambill, 2 Head. (Tenn.) 164.

4 In cases where the facts proved are such as to warrant a finding of revoca-
tion if 8Uch was the intent, testator's declarations, made either before Or after
the act relied on, are admissible on the question of intent. Pickens v. Davis,

184 Mass. 262; Sugden v. St. Leonards, l P. I). 164; Matter of Johnson's

Will, 10 Conn. .">M7. Compare also cases on animus ttstanili

'■■ Hums v. Burns, l s. & R. 296; and see opinion in Burtenshaw \. Gilbert,
1 ( >owp. 49.

'■ As, fur in-t.mce, if he believed it not properly executed, ami, en thai ac-
count, only, lore it up. [n Goods Of Thornton, M P. I> 82; or if he erroneous-
ly believed that a later will. Intended to supersede die earlier, was duly exe-
cuted. Onions v. Tyrer, 1 I'. Wins. 848.
' Doe v. Perkea, BB. .V Aid. 489.

326 REVOCATION AND KEPUBLICATION.

a will than to make one. This view is probably based on the
idea that revocation in itself merely requires a general desire
to get rid of a given instrument as a whole, while the making of
a will requires the capacity to summon before the mind, as already
stated, 1 various groups of facts. In reality, however, revocation
practically implies the capacity to summon before the mind, and
intelligently pass upon the same facts, the only difference being
that in making a will testator must decide what he will do, by
affirmative provision, while in revoking it he must decide with
equal definiteness, though negatively, that he will not make the
particular provisions previously decided on. The better rule ap-
peals to be that the test of capacity to revoke is the same as the
test of capacity to make. 2

(d). If the intended revocation, though carried out by appro-
priate acts, is grounded directly on an erroneous assumption of
facts, as, for instance, where a later will revokes a legacy contained
in a former, on the expressed ground that the legatee is dead,
when in fact he is not dead, here, if the mistake as to the essential
facts and grounds of revocation appears on the face of the instru-
ment, and is shown by extrinsic evidence to be false, no effect
will be given to the attempted revocation. 3 But a distinction
must be carefully observed between cases where the revocation is
grounded directly on the existence of the supposed fact, and those
where it is grounded on advice from others that such was the fact,
or merely on testator's belief that such was the fact, instead of on
the fact itself. In these the revocation will be given effect, for
the advice, or the belief, did in fact exist, and on them testator
chose to rely. 4

PAEOL EVIDENCE OF INTENT TO REVOKE.

It will be seen that the foregoing ways in which revocation
may be effected fall into two classes, — first, where the testator does
some act for the very purpose of revoking his will, as, by burning
it; and second, where some circumstances occur which, as a

1 Ante, p. 12. 2 Mclntire v. Worthington, 68 Md. 203.

3 1 Jarman on Wills, 183 ; Campbell v. French, 3 Ves. Jr. 321 ; Doe v. Evans,
10 Ad. & El. 228.
4 1 Jarman on Wills, 184.

PAROL EVIDENCE OF INTENT TO REVOKE. 327

matter of law, and as a collateral result perhaps not in fact con-
templated by testator, produce a revocation, either partial or
entire, as, for instance, where, in some jurisdictions, a woman
makes a will and afterwards marries.

Now in the first of these classes, intent of the testator to revoke
his will is a strictly essential element, and although it consists in
a mental condition, or an idea in the mind of the testator, vet its
existence, or non-existence, is in truth a fact to prove which tes-
timonv may he admitted. The nature of the act itself, the con-
dition in which the instrument is left, the circumstances attending
the act, the expressions of testator and others at the very time,
may therefore be shown, in so far as they make up the res gestae.
All these instances are well illustrated in the following cases. In
addition to these facts, parol evidence is also admissible of testa-
tor's declarations made even afterwards. But just as, in discussing
the admissibility of testator's declarations on the issues of mental
incapacity and undue influence, we have already seen ' that such
declarations, in so far as they are not part of the res gestae, are
admissible, not as in themselves evidence of the allegations em-
bodied in them, but only as evidence of the state of mind, at the
date of execution, of the person making them ; so also on the
question of intent in acts implying revocation, testator's declara-
tions are admissible to show his state of mind in the matter of
intent, as a fact, at the time he did the act. But they are not
admissible as evidence of whether, having the state of mind
shown. In- did in fact effect a legal revocation. 2 Thus if he did
in reality hive the intent to revoke, and did in reality do acts
legally sufficient to carry that intent into effect, then his subse-
quent declarations, no matter how positive, cannot in effecl rees-
tablish the will. Hut yet his declarations and conduct afterwards
mav losricallv 20 to show that at the time he did the acts relied on
ae effecting revocation, he did, or did not, have any intent to

revoke by those acts. And to this extent and for this purpose
evidence of his declarations and conduct Is admissible.'

1 Ante, p. 21 I, - ' 1 1 * I cases p. 1 17.

81 ; . . Stewart, 2 Sw. .V Tr, 820.

Patter on v. Bickey, 82 Qa r><'> . Lawyer v. Smith, 8 Mich, til ; Ford v.
Ford, 7 Humph 92 1 lot i ; Boudinot v. Bradford, 2 Feate I H) : see Tn re Weston,
L. R. 1P.&D. 688; Collaganv Burns,57Mi 149; Pickens v. Davis, 184 M
252.

328 REVOCATION AND REPUBLICATION.

It should be added, however, that the authorities on this sub-
ject are conflicting, and that Selden, J., after a careful review of
the authorities, in a case in the New York Court of Appeals, laid
down the proposition, 1 that on the question of testator's intent to
revoke, none of his declarations, except such as constituted part
of the res gestae, are admissible as evidence.

However this may be, the presumption of revocation arising
from the fact that a will, once in existence, and under testator's
control, cannot be found at his death, 2 may be rebutted by evidence
of his subsequent declarations, at the time of his death, going to
show that he had not destroyed it with intent to revoke. 5

Note.

For a very full discussion of .Revocation, citing and comparing
the American statutes and decisions, see notes to Randolph &
T.'s Am. Ed. of Jarman on Wills, vol. 3, p. 783 et seq.

TEARING UNDER MISAPPREHENSION.
In the Goods of Thornton.

High Court op Justice, Probate Division, 1889.
(14 P. D. 82.)

The testatrix, Mrs. Jane Thornton, of No. 28, Royal Crescent,
Bath, duly executed her last will and testament on July 7, 1885,
and subsequently she executed four codicils, bearing date respect-
ively April, 1887; March, 1888; July, 1888; and August, 1888.
On March 21, 1889, she made a fifth codicil, which was duly exe-
cuted and attested. This had been prepared for her by her
solicitor, and sent down to her for execution, with blanks left for
the date, and in filling up these blanks she inadvertently reversed
the day and the month, so that the codicil concluded thus : " In
witness whereof I have hereto set my hand this March day of
21st, 1889." Being under the impression that the codicil was
thus rendered invalid, she directed her two grandnieces, who were

1 In Waterman v. Whitney, given ante, p. 84.
9 See Index, "Lost Will."

3 Johnson's Will, 40 Conn. 587 ; YouDdt v. Youndt, 3 Grant 140 ; see the
discussion of this subject in Collagan v. Burns, 57 Me. 449.

TEARING WHILE INSANE. 329

present at the execution, to tear the codicil into four pieces, to
inclose them in an envelope, and send them to her solicitor, in
order that he might prepare another copy for her to execute. Mr.
Turner, on receiving the letter, pasted the four pieces of the
codicil together, and prepared another draft, but the testatrix
died before executing it.

Butt, J., admitted the codicil to probate.

[Also Giles v. Warren, L. It. 2 P. & D. 401.]

TEARING WHILE INSANE.
Brunt v. Brunt.

English Couiit of Probate, 1873.
(L. R. 3 P. & D. 37.)

The plaintiff propounded the will of William Brunt, late of
Sidney Street, Commercial Koad, Middlesex, publican, dated
November 22d, 1869. The defendant did not appear.

(Feb. 12.) Sir J. Hannen. — In this case a will was propounded
which it was alleged the testator had destroyed when suffering
under delirium tremens, that is, when he was insane. The evi-
dence satisfied me that the testator was in an unsound state of
mind when he tore up the will ; he was suffering from delirium,
and therefore not capable of exercising any judgment in the mat-
ter. The pieces were collected and put together, so that the will
is now restored to the condition in which it was before the
destruction. The testator, after the recovery of his senses, ex-
pressed regret at what he had done, and said he would make
another will. 1 I am of opinio!) that under these circumstances
there was no revocation of the will by destruction. The act done
by the testator can in no sense be considered his act, for lie was
then out of his mind; so that there has never been anything at all
amounting to a revocation. After his recovery he expressed
regret, and proposed to make a fresh will. The circumstances
arc exactly the same as tln.se in Borlase v. liorlase. At page
139 Sir II. Jenner Fusl says: f The deceased was at the time (of
the destruction of the paper) in a state of menial excitement, and

1 Sec cases ante, on Dec! rations by Testator. ' 4 No. of Oa. 100.

330 REVOCATION AND REPUBLICATION.

insane, and not master of his actions, and consequently not respon-
sible for his act, as if it had been the act of a competent person ;
and consequently the attempt at destruction, or even the actual
destruction of the codicil, by a person in such a state of mind, has
no effect. The pieces of the paper were saved and sealed up in an
envelope, with a memorandum setting forth the fact of the tear-
ing by the deceased. This attempted destruction, therefore, can-
not have the effect of a revocatory act. The deceased is said to
have immediately recovered his faculties, and to have expressed
regret at the act. I think this is not improbable, looking at the
nature of the attacks he was subject to ; but whether or not this
be so, whether he did recover himself immediately after or not,
if at the time of the attempted destruction he was not of sound
mind, the act can have no effect upon the instrument he at-
tempted to destroy ; and therefore nothing, it appears to me, can
in any way affect the disposition contained in the codicil." I
decree probate of the will.

[Also Sprigge v. Sprigge, L. R 1 P. & D. 608, given post.]

DESTRUCTION WITHOUT TESTATOR'S CONSENT.
Trevelyan v. Trevelyan.

Prerogative Court op Canterbury, 1810.
(1 Phillim. 149.)

Edward Trevelyan, Esq., died at Clifton, on the 13th of Sep-
tember, 1807; no will was found to be in existence at the time of
his death, but it was pleaded that his will had been destroyed
during his lifetime without his knowledge.

The two following codicils were before the court :

" I bequeath whatever money I die pos-
of in my former will,
not disposed » the produce of my
sessed of, .as well commissions in his Majesty's ser-
vice, as whatever may be in my agent's hands, or else-
where due to me, in share and share alike between my
brothers Walter and George Trevelyan after paying my
just debts ; my fishing rods and dogs to Stackpoole ; my
curricle and horses to Walter and George, these having

and brood mare
to pay my debts ; my two colts . to Stackpoole. I

DESTRUCTION WITHOUT TESTATOR'S CONSENT. 331

desire that Richards my late servant a soldier in the
same regiment with myself may have his discmwge
purchased for him if he wishes it.
" September 10th, 1807.

" Witness, " Ed. Tkevelyan.

" Ann Bowsher,
" Grace Barton.

" To my late servant Richards, as well as his dis-
charge, I bequeath all the cloaths, regimentals, or
otherwise, I may die possessed of; and to Stackpoole
my guns.

" Ann Bowsher. " Ed. Tkevelyan.

" September 10th, 1807."

Mr. Gordon depose*/,

" That he was intimately acquainted witli the deceased ; that
to the best of his recollection as to time, on the 22d of June, 1807,
he dined at the Rev. George Trevelyan's, at the parsonage at Net-
tlecombe, and he thinks Miss Lyttelton and Lady Elizabeth Per-
cival were there on a visit, and the deceased was also of the party ;
when the ladies had left the room after dinner, the conversation
turned upon the deceased's brother's, the Rev. George Trevel-
yan's children, and the deponent observed that Henry Trevelvan,
one of them, who was the godson of the deceased and also of the
deponent, was a fine child, the deceased agreed with him; after
talking for sometime of the child, the deponent laughing said,
if the deceased would leave Henry his heir, he would leave him
also £1,000; the deceased agreed to this, and the deponenl called
for pen, ink. and paper, and made the deceased's will, and wit-
nessed it. To tin- best of his recollection the will was as follows:

••'This is the last will and te-t.iineiit of Edward
Trevelvan of bis Majesty's first regiment of Foot
Guards; I give bequeath and devise all my property
both real and personal wherever and whatsoever unto
my dear godson Henry Trevelvan, the son <>f my
brother George Trevelyan of Nettlecombe, and I
appoint the -aid Henry Trevelyan my godson my

residuary legatee.'
"That having made this will, lie read the same all over lo the

332 REVOCATION AND REPUBLICATION.

deceased ; that the deceased understood it, and approved of it,
and set and subscribed his name thereto in the presence of the
deponent who also subscribed his name to it as a witness ; that
during this proceeding the Rev. George Trevelyan reprimanded
both the deceased and the deponent for their folly and left the
room ; that on tea being announced they joined the ladies, and
upon entering the room the deceased observed, ' We have made
a man of Henry,' and they all laughed, but no one was told of the
particulars of the will ; that upon the deponent's return to his
house he began to reflect that the joke had been carried to a
sufficient length, and that it was incumbent on him to destroy the
will, supposing the deceased not really serious, and he accordingly
destroyed it,- that he destroyed it unknown to the deceased, but
whether the deceased did or did not remain ignorant thereof till
his death he cannot say, as he, the deponent, never affected the
least concealment of his having destroyed the same."

William Stackpoole deposed,

" That when the deceased was lying in his last illness at*CHf-
ton he was with him, as were also his brother the Rev. Walter
Trevelyan and his wife ; and Mr. Walter Trevelyan suggested to
the deponent the propriety of his brother's making his will ; upon
which the deponent immediately went into the room and men-
tioned it to him, to which he replied that he had made his will
when he was ill two years before in Somersetshire, which was
written out by Gordon, and that it was in favour of one of his
brother George's children to whom he was godfather, that Mr.
Gordon had compounded in case he made him his heir to add
£1,000 to it ; to which the deponent replied, the produce of his
commission he thought nevertheless undisposed of, or any pay
that might be due to him ; therefore he took pen, ink, and paper,
and drew the first codicil in question." Mr. Stackpoole then
proceeded to depose in the fullest manner to the deceased's ap-
probation and signature of the codicil, and continued his evi-
dence thus :

" That the deponent then went into the next room, where were
Mr. and Mrs. Walter Trevelyan, and read to them the codicil,
when it occurred to the deponent that it made no mention of the
will the deceased had often and so lately said he had executed

DESTRUCTION WITHOUT TESTATOR'S CONSENT. 333

and left with a Mr. Gordon, and that he had not bequeathed his
clothes of which he usually had a great many. He therefore re-
turned to the deceased and put the following questions to him by
way of ascertaining his recollection in the presence of Ann Bow-
sher, his nurse, all of which he had repeatedly solved to the depo-
nent : 'Where is your will ? at Edward's?' 'At Mr. Gordon's, a
particular friend of George's, in Somersetshire.' 'Is it the will
you have before mentioned to me to have been drawn by Mi-. Gor-
don?' 'Yes. The contents I have often told you of; or words
to that effect. ' Is it your intention that this should interfere in
any way with that ? ' ' No ; certainly not '; or words fully to that
effect. That the deponent immediately made the interlineation
'not disposed of in my former will,' and asked the deceased
whether such were his intention ; to which he replied, ' Yes.' "
Mr. Stackpoole then deposed to the writing and execution of the
second codicil of the 10th September, 1807.

Ann Bowsher, nurse of the deceased,

Spoke to the attestation of the two codicils above mentioned.

Judgment.

Sir John Niclioll.

There can be no doubt in law that if a will duly executed is
destroyed in the lifetime of the testator without his authority it
may be established upon satisfactory proof being given of its hav-
ing been so destroyed ; also of its contents.

The question then comes to the facts, and in this case there is
abundant proof of the execution and contents of the instrument.,
as well as of the destruction of it without the authority or knowl-
edge of the deceased. It is not necessary to decide whether
the court could receive evidence against the fact of execution on
the ground that the transaction was throughout a jest;' it would
be very dangerous to admit any such evidence of intention against

the act ; though then; might he such a p088ible ease, especially if
the paper it. -elf contained anything ludicrous or absurd in its dis-
position : against this instrument this species of argument cannol
be maintained with effect, for the property is bequeathed to the

testator's own nephew and godson.

1 See Nichols v. Nichols, given ante,

334 REVOCATION AND REPUBLICATION.

It appears also from the evidence of Mr. Stackpoole that the
deceased was very serious in this disposition of his property ; the
codicils too are a complete recognition and proof also that he had
no knowledge or idea of the destruction of the paper.

Under such proof the court is bound to pronounce for the will
" as contained in the deposition of the witness " (this is the mode
I believe which has been adopted on similar occasions); and for
the two codicils which are sufficiently proved.

ACT OF REVOCATION LEFT INCOMPLETE.

Doe, dem. of S. Perkes, against E. Perkes and others.

Court of King's Bench, 1820.

(3 B. & Aid. 489.)
Ejectment.

Defendants' title depended on the validity of the will of Charles
Perkes, deceased. The will had been duly executed. The ques-
tion was whether it had been revoked. It appeared that testator,
in August, 1816, had a quarrel with a devisee named in the will,
and in a fit of passion took the will and tore it twice through.
Joseph Worrall, who was present, seized his arms, and the devisee
begged testator's pardon and implored him to desist. Testator
then became calm, and folded up the will and put it in his pocket.
Subsequently he examined it and said he was glad it was no
worse. It was torn in four parts. The judge left it to the jury
to say whether testator, in tearing the will, had completed all he
had intended, or had desisted before doing so. The jury found
for the defendants.

W. E. Taunton moved for a new trial.

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 pur-
pose, were to take it off again, it could not be contended that it

REVOCATION. — TORX PARTLY THROUGH. 335

was a cancellation. So here, there was evidence from which a
change of purpose before the completion of the act, might prop-
erly be inferred. The jury have drawn that inference, and I see
no reason to disturb the verdict.

[Abbott, C. J., and Holroyd and Best, JJ., wrote opinions to
the same effect.]

Rule refused.

REVOCATION. -TORX PARTLY THROUGH.
Elms v. Elms.

English Court op Probate, 1858.
(1 Sw. & Tr. 155.)

This was a question as to the intention and fact of revocation
of the will of Lieut. Jacob.

The case was argued by the Queen's Advocate (Sir J. D.
Hardmg) i Dr. 8j>inks and Mr. J. D. Welsby for the legatee.

Dr. Phillimore, Q. C, and Mr. Coleridge for the next of kin.

The facts are fully and minutely stated in the evidence of wit-
nesses, as recited in the judgment. As regards the instrument in
question being found by Cox in his drawer after Lieut. Jacob's
death, it was suggested that the testator, being a man of intem-
perate habits, had left the will in the pocket of Cox's mackintosh,
which he wore when he took leave of Miss Elms, and showed her
what he called his will ; and that Cox, after Lieut. Jacob had left
London for Southampton and India, carried it back with him in
the mackintosh to Wales without bcimr aware that it was there.

( '>//■. adv. ''>flt.

Sir C. Cresswell. — This was a question as to whether Lieut.
Jacob, late of the Madras Native Infantry, left a will or died
intestate. It was admitted on both sides, and on the record, that
tin- deceased in L856 made a will, which was duly executed as
required by 1 Vict., e. 26. But it was alleged by the defendants
that he afterwards revoked that will, and that it never was re-
vived. At the hearing of the case there was some discussion as

to the party upon whom the onus probunill was cast. On that

subject the remarks of Lord Brougham in Waring v. Waring. o"
Moore, I'. ('. 355, are well worthy of attention. !!<■ there Bays:

336 REVOCATION AND REPUBLICATION.

" The burden of proof often shifts about in the progress of the
cause accordingly as the successive steps of the inquiry, by leading
to inferences decisive until rebutted, cast on one or the other party
the necessity of protecting himself from the consequences of such
inferences ; nor can anything be less profitable as a guide to our
ultimate judgment than the assertion, which all parties are so
ready to put forward in their behalf severally, that in the ques-
tion under consideration the proof is on the opposite side."

Adopting that view of the subject, I will proceed to consider
the whole of the evidence in this case, and endeavor to ascertain
whether the will, which Lieut. Jacob made in 1856, was after-
wards revoked by him or not. The will, as brought into the
registry, was written on five sheets of paper, which were attached
together by tape at the upper left-hand corner; it appeared to
have been folded up in the ordinary form of a brief ; it appeared
also to have been half-opened, so that the sheets, when attached,
were doubled only with the top and bottom edges brought to-
gether, and that all the sheets had been torn at the same time from
the edge very nearly through, so that only a small portion of each
sheet, where it was doubled, held the two parts together ; but no
one of them was entirely torn through, so as to divide it into two
portions. The manner in which it was reduced to that state was
not left to conjecture or presumption. Positive evidence was
given. It was torn by the deceased, not by accident or mistake,
but by design, and the question is, whether he intended to revoke
it by so tearing it. The statute 1 Vict., c. 26, s. 20, amongst
other modes of revoking wills, mentions "tearing by the testator
with the intention of revoking the same." Now, by tearing, I
do not understand the legislature to have meant that the testator
must rend the will into more pieces than it originally consisted
of; and therefore, although no one sheet of paper was coinpletely
divided, I think the tearing might be sufficient to revoke, if done
with that intention. But, in order to make it effectual, he must
have intended to revoke by so tearing it ; by which I mean,
that he must have intended that which he actually did of itself to
have that effect without more. In one sense it may be said that
he tore the will with the intention to revoke it, for no doubt he
had that intention when he began to tear, and as soon as he had
torn it a quarter of an inch he had torn it with intention to

REVOCATION. — TORN PARTLY THROUGH. 337

revoke ; but he did not intend to revoke it by that tearing only,
he intended to tear further.

And this brings me to the same question that was considered
in Doe v. Perkes, 2 B. & A. 489. When he ceased tearing, had
he done all that lie contemplated doing for the purpose of revok-
ing ? If he had, the revocation was complete, and he could not
recall his act ; he could only recall the will by some of the means
prescribed by the 22d section of the Wills Act, which he cer-
tainly did not adopt. But in order to decide that this will, which
was duly made, was afterwards revoked, I ought to be satisfied
that the testator did all that the statute makes necessary to work
a revocation, viz., that he tore it, meaning by that act without
more to revoke it. And here I must refer to some of the evi-
dence given in the cause.

According to Mr. Cox (who was acquainted with the deceased
at Caernarvon, and in whose house the deceased was from time to
time staying), it appears they were in London together in Octo-
ber, 1856, when the deceased told Cox that he had ordered his
solicitor, Mr. Few, to obtain the will from Major Watson, in
whose custody it was. Subsequently, in the same month, the
deceased received a letter from the post-office at Caernarvon, con-
taining the will. He was then staying at Cox's house. He
desired Cox to read the will, and to take care of it for him ; Cox
accordingly put it in a drawer, and he says it was then in a per-
fect state. " In May, 1857," Cox says, " we arranged to come up
to London together; he told me to put the will in his'portman-
tean : he told me he was going to make a new will, and that he
wished to leave all his money t<> Miss Kims, and that he should
instruct Mr. Few to make one." It appears, however, thai cir-
cumstances prevented the new will from being then made, and
Cox brought back the existing will to Caernarvon, where they
returned mi the following day. Cox continued : " In -lime, L857,
the deceased received orders to go to India. I again came up to
Loudon with him. Nothing was then said about the will. We

Btayed two or three days in London and then returned to Caer-
narvon. The deceased said he came up to make some arrange-
ments about going to India. I remember the L4th of August.
The deceased had been drinking almost a pint of brandy that
morning. Be was on the sofa, lb- asked me to go up and fetch
22

33S REVOCATION AND REPUBLICATION.

his will out of his portmanteau. I did so. As soon as he had it
in his hand he ripped it, tore it ; as soon as I saw what he was
doing, I said, ' Stop, don't do that ' — (he did stop) ; ' if you do so,
Miss Elms won't take a penny of your money unless you make an-
other will ; and as it is, she will get the greatest part of it.' He
said, ' Oh, I shall make another will when we are up in London ;
I wish her to have it all.' I said, ' If you wish to destroy the
will, you had hetter burn it.' 'No,' he said, 'you burn it.'
I said, ' No, I could not do it.' I then asked if he wished to
burn the will. He said, 'No, I sha'n't.' I then said, 'I'll
take it up-stairs.' I did so; he knew that I took it up-stairs."
In answer to some questions which I put, the same witness said :
" When he tore it, he either gave it me, or I picked it up off
the floor ; I can't speak positively ; I thought he picked it up ;
he was on the sofa ; he did let it fall out of his hand on the floor ;
the will was in his hand when I said, ' Stop, don't do that '; it
was on the instant. I said it would be time enough to destroy
that when he had made another ; it was all done at one tear."
He further said : " Mrs. Cowlishaw was in the room at the time ;
the deceased left my house on the 16th of August, — on a Sun-
day ; I went with him to London ; we got there on the 17th,
and again stayed at the Cross Keys ; on the 18th we went to
Horsham ; the deceased said he went to Horsham to bid Miss
Elms good-bye ; he saw her; he borrowed my mackintosh ; Ire-
turned to London with him that day: he told me he had seen
her ; he seemed very much distressed ; he never went out of the
Cross Keys till Wednesday evening, when he started for South-
ampton ; I don't know of his having the will with him when he
went to Horsham. In September, 1857, I found the will in my
drawer ; I received a letter from Mr. Few to ask if the deceased
had left any papers behind with me; he had burned all the other
papers he wished to destroy the day before we last started for Lon-
don ; when we came to the will, I said, ' Here's the will, Jacob ';
he said, ' I shall make another will when I go to London '; I put
the will in the drawer in his room. When Mr. Few wrote to me
I went to find the will, and it was in the drawer in our room ; I
forwarded it to Mr. Few ; I do not know how it came in the
drawer where I found it." On cross-examination the witness
gave the same account. He added : " When I came back from

REVOCATION. — TORN PARTLY THROUGH. 339

Horsham with Lieutenant Jacob, I reminded him that he should
make another will ; he said, ' I shall, but I have not time now ;
if I am taken ill on board ship I shall be sure to make my will ;
I should speak to the captain.'' ' Mrs. Cowlisbaw, a married sister
of Cox, who was staying in his house on the 14th of August,
says : " I remember being in the kitchen in company with Lieu-
tenant Jacob and Mr. Cox ; my husband was in an adjoining par-
lour; Lieutenant Jacob said to Cox : 'Cox, fetch my will down';
Cox brought it ami gave it to Mr. Jacob; Jacob was lying on the
sofa at full length ; he took the will and appeared as if he would
tear it then ; he did begin to tear it, and I said, 'Stop'; he tore
it a little more; 1 said, ' Pray, do stay.' Cox also said, ' Don't
mutilate it like that, Mr. Jacob; Miss Elms won't get a penny of
your money '; he was going to tear it still further, when I said,
' Pray, don't,' and he ceased; lie let it fall on the floor; he was
still at full length on the sofa ; in a few minutes he rose, picked
it up, and said, 'I will take it to Cowlisbaw, then, to read; he
will like to read it.' He then went into the parlour and took the
will with him." .Mi', .lames Cowlishaw, the husband of the last
witness, said: "I was staying at Cox's in August, 1857. I knew
.Mr. Jacob there; he frequently spoke to me about his will; he
said he intended to destroy that will and make another, and leave
tin- whole of his property to Miss Elms; that he intended Major
Watson's daughter not to have the £1,000 he had left her. He
-iid he should not leave his brother and sisters anything. On the
14th of August I was sitting in the parlour reading; my wife and
Mi-. Cox were in the kitchen. Mr. Jacob came into the parlour,
followed by Cox; he said to me, 'Cowlisbaw, there is my will;
read it." I did so fir that I could ascertain to whom he had left
his money; he had left a legacy of 61,000 to the little girl, and

the whole of the iv.-t to M b> Kims. I handed it back to him ; he
said, ' I mean to destroy this, and make another in favour of Miss
Elms.' Myself and Mr. Cox said, 'If you leave M in this muti-
lated -tate, there will be a bother about it/ Mr. (\>\ suggested
to put it iii the He,, in the back kitchen. Jacob asked me to do
bo. I said, ' \<>. it is a serious matter: r can't interfere.' Lieu-
tenant Jacob refused to burn it, and Cox said, ' Well, Jacob, if
you won't destroy it, I'll take it up-stair- again.' lie did so.
Jacob had been drinking thai morning brandj ; he wos nol drunk,

340 REVOCATION AND REPUBLICATION.

he knew what he was doing." Miss Elms deposed : " I remember
his coming down on the 18th of August before he went to India.
I saw him ; he said he was going to sail ; he produced a paper
from the pocket of the coat he had on ; he said it was his will.
He partly opened it, and showed part of the writing ; I think I
saw my name, but I am not sure. I did not see his signature ;
he said it was a will made in my favour, and wished me to keep
it. I refused. I did not observe whether it was torn ; he opened
it very partially." (On the will being- shown the witness), " It
is the same colour as the paper I saw ; it was doubled up. I
thought it was a journal when he produced it." The act of drop-
ping or casting it on the floor was no doubt relied on in conse-
quence of the dictum of Best, J., in Doe v. Perkes; but the
learned judge must not be supposed to have ascribed to the act of
throwing the torn will on the floor any other operation than that of
showing that he had done all that he intended to do. But there his
hand had been arrested, and if I am to place implicit reliance on
Mrs. Cowlishaw's evidence in this case, the testator was about to
tear further, when she stopped him ; the appearance of the paper
confirms that. He had torn the will so nearly through, that one
cannot but conjecture that he meant to effect a severance of the
parts; but that remained unaccomplished, and I find nothing in
the case upon which I can assume any other state of facts than
that which Mrs. Cowlishaw describes. Her memory may be im-
perfect ; but assuming it to be so, what other evidence have I
before me? By what testimony has any other state of things
been established ? The brother's evidence is not quite so full, but
it leads to the same conclusion.

I do not place reliance on what passed afterwards, — viz., that
when he burnt other papers, he preserved the will, and that he
showed it to Miss Elms as his will. If it had appeared that he
knew that the will once torn with intention to revoke was thereby
revoked, the preservation and subsequent exhibition of it to Miss
Elms would have tended to show that he knew it had not been
revoked, or, in other words, that his hand had been arrested in
time, and that he had never completely revoked it ; but he very
probably supposed that, as long as no parts of the will had been
destroyed, it would still be valid, although torn with intention to
revoke, and therefore the preservation of it is too equivocal an

INTENTION TO KEVOKE, BUT NO ACT. 341

act to be relied on in forming any judgment upon this very nice
question. But putting that out of consideration, upon the whole
of this evidence, dealing with it, as if I were a juryman, I say
that I am satisfied, that the instrument brought into the registry
was duly executed by the deceased Lieutenant Jacob as his last
will and testament, and I am not satisfied that it was revoked
by him. I must, therefore, pronounce for the will, and grant
probate of it.

INTENTION TO KEVOKE, BUT NO ACT.
.11 u n dy v. Mundy.

New Jersey Prerogative Court, 1858.
(15 N. J. Eq. 290.)

Application for probate.

The application was denied by the Orphans' Court, and this
appeal was taken.

Two principal questions were involved, — whether the will had
been duly executed (which is here found in the affirmative), and
next, whether it had been revoked.

The Ordinary. (After finding that testator was competent to
make a will.)

There was some testimony taken also in reference to the can-
cellation of the will. A witness says, " I was at his (testator's)
house fifteen years ago, and Mr. Mundy asked his wife for the
will, and she said it was at Piscataway-town ; she said to Mr.
Mundy, what do you want of it? he said, I want to burn it up;
she said, it is at I'i -caraway -town ; she said, when I go down there
I will get it; when she came home, he asked her if she had got
the will — Bhe said not — what do you want of it? 1 want to
barn it, ap, he said ; she said, I have burnt it up; thai was about,
fifteen year- ago."' If implicit confidence could be placed in the
testimony of this witness, it would not affect the validity <>t the
will. Tin- will was not, burnt up. The testator ought not to
have relied upon the declaration <>f his wife. If he had aeri-

ously desired to cancel the will, he could have dour it without,

hiving the will in his possession. The will could be can-
celled in no other way than by its being burned, cancelled,
torn, or obliterated by the testator himself, Of in his presence

342 REVOCATION AND REPUBLICATION.

and by Ins direction and consent, or by a revocation in writing,
executed in the same manner as wills are required to be executed.
This will was neither cancelled or revoked in the manner directed
by the statute.

(Here follows the consideration of the execution of the will.)
The decree of the Orphans' Court of the county of Middlesex
must be reversed, and the will be admitted to probate. Letters
may be taken out in this court, or the proceedings may be re-
manded, and letters taken out in the court below.

TEARING.— SURREPTITIOUS PRESERVATION.
Sweet v. Sweet.

Surrogate's Court, Oswego County, New York, 1863.

(1 Redf. 451.)

Application for probate.

Hull, S. — From the testimony, it appears that in 1861, de-
ceased made a will devising his homestead to his wife ; and after
making liberal bequests to her, according to his means, and ample
provision for his children, he gave certain small specific legacies
to his mother, and his brothers and sisters.

In the fall of 1862, he was taken ill with pulmonary disease,
and after being sick a few weeks, on the 3d of Nov., 1862, while
confined to his bed, made a codicil revoking all the provisions of
his will, and giving all his property, real and personal, to his
wife. It appeared that there were several grave irregularities
relating to the execution and publication of the codicil, to which
it will not be necessary to refer, for the reason that another
point in the case was raised of more vital consequence to the
validity of the instrument than the irregularities relating to its
execution.

From that part of the testimony concerning which there was a
conflict or dispute, it appeared that about one week after the
codicil was executed, and while the deceased was confined to his
bed, he requested his wife to hand him the will. She at first
declined. He told her that he wanted to see the man that drew
it, and his brother, the executor. She finally handed him the
paper. He took it in his hand, and holding it up before him,
tore it into some ten or twelve fragments, and left the pieces on

TEARING. — SURREPTITIOUS PRESERVATION. 343

the bed. He then attempted to get up, but was prevented by
the petitioner. He became excited and somewhat exhausted by
the effort.

She gathered up the pieces and put them in a desk, without
the knowledge of the deceased, and locked the desk, where the
paper remained in the same condition until after the deceased
was buried.

The will and codicil and certificates of the witnesses were writ-
ten upon one sheet of paper. When presented for probate, the
several pieces had been sewed together by thread, in such an in-
genious manner that the paper was perfectly legible.

It appears in evidence that the deceased did not know that the
fragments of the paper were preserved ; that afterwards, he fre-
quently spoke of having torn up and destroyed his will, and ex-
pressed a desire to recover his breath, that he might be able to
make another will.

In one conversation, while talking about a will, the petitioner
remarked, " You have no will"; and the deceased replied, " I
should have had another drawn, if my friends had not advised me
not to."

The only testimony tending to show unsoundness of mind at
the time of the destruction or revocation of the will, was that of
the witness, who testified that deceased appeared excited, and
wanted to get up and put on his clothes, and made use of singular
language to his daughter respecting the petitioner.

On the contrary, the attending physician testified that he saw
nothing indicating insanity or unsoundness of mind in the de-
ceased; that in talking with him soon after the will was torn to
pieces, he appeared to be perfectly rational ; said the reason that he
had torn it up was, there were others that he wished to benefit
besides -I alia — the petitioner.

A Dumber of other witnesses corroborated the physician. From
all the testimony, it is evident thai the deceased died with the be-
lief that his will had been utterly destroyed, and that no part of

it was in existence.

Was this a revocation of the will within the meaning of the
Revised St it utes \

The statute prescribes that a will may be revoked 1st. By an-
other will in writing; 2d. By some other writing of the testator,

344 REVOCATION AND REPUBLICATION.

declaring such revocation or alteration, executed with the same
formalities with which the will itself is required by law to be
executed; 3d. By burning, tearing, cancelling, obliterating, or
destroying the instrument, with the intent and for the purpose of
revoking the same; 4th. By marriage, or changes in testator's
condition in life. (2 Kev. Stat. 64.) Under the third requisite
of the statute, in order to make the revocation complete, the act
must be done animo revocandi. The mere act of tearing or can-
celling is not sufficient. (Jackson v. Halloway, 7 Johns. 394;
Jackson v. Pattie, 9 Id. 312 ; Smith v. Hart, 4 Barb. 28 ; Nelson
v. McGitfert, 3 Barb. Oh. 158 ; Perrott v. Perrott, 14 East 423 ;
Willard on Ex. 123.)

In this case, the tearing and obliteration and destruction of the
instrument was as complete as the deceased had the power of
making it, in his then state of health. He saw it lying about him
in scattered fragments, evidently to him appearing so badly torn
as to be incapable of restoration. His language before tearing
the paper, and his subsequent conversation, clearly indicate his
purpose at the time to be, to make a complete revocation of the
instrument.

The restoration of the instrument into a legible form was no
act of the deceased. He saw it in pieces, scattered about the
room. He expressed himself satisfied that it was no longer in
existence, and died in the full conviction that he had left no will.

With this view of the evidence, I must refuse to admit the
instrument to probate.

BURNING.— SURREPTITIOUS PRESERVATION.
Esther White against James Casten and Wife.

North Carolina Supreme Court, 1853.
(1 Jones L. 197.)

This was an issue devisavit vel non, as to a script purporting to
be the will of Thomas J. White, propounded by Esther White,
his widow, and opposed by James Casten and his wife, tried be-
fore his Honor Judge Ellis, at Fall Term, 1853, of Chowan Su-
perior Court.

His Honor Judge Ellis instructed the jury that the acts de

BURNING. — SURREPTITIOUS PRESERVATION. 345

posed to amounted to a revocation under the statute, if done with
an intention to revoke.

Verdict for Casten. Motion for a venire de novo. Motion re
fused and appeal to this court.

Nash, C. J. — The question for our consideration arises under
the act of the General Assembly concerning the revocation of
wills. Rev. Statute, ch. 122, sec. 12. By that section, it is pro-
vided, " that no devise in writing, etc., or any clause thereof, shall
be revocable, otherwise than by some other will in writing, or by
burning, cancelling, tearing, or otherwise obliterating the same,
etc." This provision is almost in the exact terms of the Statute
of Frauds, in England, passed the 29th of Charles the Second.
It was stated at the bar, in the argument here, that the true con-
struction of the 29th of Charles, upon the question raised here,
was in England still unsettled, and that there was no adjudication
by this court, which was a direct authority. This is so, and we
must endeavor to extract from the conflicting English authorities,
and our own cases which have a bearing upon the question, that
rule which appears to us most consonant with the statute and to
reason. Revocation is an act of the mind, demonstrated bv some
outward and visible sign or symbol of revocation. No act of
spoliation or destruction of the instrument will, under the statute,
revoke it, unless deliberately done, animo revocandi. Thus, if a
testator, intending to destroy papers of no value, ignorantlv and
without an intention to do so, throws his will into the tire,
and it is consumed, or by accident tears off the seal, it is no revo-
cation. The difficulty lies in ascertaining how far the symbol of
revocation must extend. As to the burning, must the will by
it be literally destroyed, in whole or in part? or must any portion
of it be actual) \y destroyed ? It is upon this point that the English
cases differ. The first case to which oar attention was directed,
was that of Mole and Wife v. Thomas, 2nd Sr. William Blackstone,

Rep. 1043. The case was : Palin, the deceased, being sick in bed,
near the fire, ordered his attendant, Mary Wilson, fco bring him his
will, which she did. Be opened it, looked at it, and tore a bit of it
almosl Off, then crumpled it in his hand and threw it <>n the fire.

It fell off, and Mary Wilson took it up and put it in her pocket.

Palin did DOt see her take it up, but had some suspicion of the

fact, as he asked her what she was at, to which she made little or

346 REVOCATION AND REPUBLICATION.

no reply. The court ruled that it was not necessary that the wil\
or the instrument should be literally destroyed, or consumed,
burnt or torn to pieces. Throwing it on the tire, with an intent
to burn, though it is but very slightly singed, and falls off, is
sufficient within the statute. The case does not inform us to
what extent the fire had made an impression on the paper; it
must have been very slight. The authority of this case is said to
be shaken by what fell from the Chief-Justice, Denman, in the
case of Reed v. Harris, 33rd E. C. L. R. 60 [6 Ad. & El. 209,
given post]. In commenting on the case of Mole and Wife,
he observes : " Doubt might be entertained now, whether the
proof there given would be sufficient as to them," meaning
burning and tearing. High as this authority is, we are not
inclined from the expression of a doubt to set aside the de-
liberate and united opinions of Chief-Justice De Grey, Gould,
Blackstone, and Nares. But, in that very case, both Pat-
teson and Coleridge stated, there must be a partial burning
of the instrument itself, and that any partial burning will destroy
it entirely. But independently of this, the case of Mole v. Thomas
is recognized by writers of the highest authority. Mr. Powell,
at page 596 of his Treatise of Devises, says: "Upon this prin-
ciple, it has been held, that if any of these acts, viz. : tearing,
burning, etc., be performed in the slightest manner, this, joined
with a declared intent, will be a good revocation, because the
change of intent is the substantive act, the fact done is only the
sign or symbol, by which that intent is rendered more obvious."
He then cites the case of Mole v. Thomas, as his authority. See
also 1st Jarman on Wills, 115 to 119; Lovelace on Wills, 347.
They both cite from Sir Wm. Blackstone, and refer to the case
of Reed v. Harris, as showing that the singeing of the cover of a
will is not a burning of the will, but that there must be a partial
burning of the will itself. Thus stand the cases in England on this
question, and upon the authority of Mole v. Thomas, Judge Kent,
in the fourth volume of his Commentaries, page 532, says : " Can-
celling in the slightest degree, with a declared intent, will be a
sufficient revocation, and therefore, throwing a will on the fire,
with an intent to burn it, though it be but slightly singed, is
sufficient evidence of the intent to revoke," and for this he cites
Mole's case. So Greenleaf, in his first volume on Evidence,

BURNING. — SURREPTITIOUS PRESERVATION. 347

349, states, that when a testator crumpled his will, and threw it
on the tire, with an intent to destroy it, though it was saved
entire, without his knowledge, it would be a revocation, and refers
to Mole's case to sustain him. See 5th Conn. 11. 168, Card v.
Grinman. By a large majority of these authorities, it appears
that the case in Blackstone is sustained, and approved. The
intent with which the act is done by the testator, must continue
through the act; otherwise it will not be a revocation, as where a
testator, upon a sudden provocation by one of the devisees, tore his
will asunder, and after being appeased, fitted the pieces together,
and expressed his satisfaction that it was no worse, it was held to be
no revocation. Here the intent to revoke was itself revoked before
the act was complete. Doe and Perkes, 5th Barn, and Aid. 481
[iriven ante]. The case of Hise v. Fincher, 10 Iredell 130, which
was referred to, does not govern this. There the testator, who
was sick in bed, directed his son to throw his will into the^ire;
instead of doing so, he, without his father's knowledge, threw
another paper in. This was adjudged, and certainly very cor-
rectly, to be no revocation. The directions given were accom-
panied by no act or symbol on the part of the testator, expressive
of his intention to revoke: his intention rested only in words.

The principle which we would extract from the cases cited, is y
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 mere parol testimony,
and if the script is in any part burnt or singed, it is sufficient to
revoke the will. Let us now try this case by this principle or
rule

The case Btates, that the testator threw the will into the fire,
with the intent to revoke ami destroy it; that, after he had done
BO, he turned away, when the plaintiff, his wife, took the papCl

from the lire secretly, and concealed it iii her pocket; thai the
testator, up to his death, thought the; will was destroyed, an. I so
frequently expressed himself. The writing was upon a single
sheel of paper, whirl, was burnt through in three places, one near
either extremity, and in the crease formed by the folding ol the
paper, h was also Binged at the outer edges, and Bcorched on the

Mitside "or hark; that this was done when the paper WES thrown

348 REVOCATION AND REPUBLICATION.

on the fire. No word or letter of the writing was in any manner
destroyed or obliterated by the burning, and the paper itself but
little disfigured, and in no wise injured, except as above stated.

It will be at once seen that this is a stronger case than that of
Mole v. Thomas. There the script was barely singed ; here it is
burnt through in three different places, the outside scorched, and
the edges of the paper singed. We are therefore clearly of
■opinion that the will was revoked : there was the present intent
to revoke — the act of throwing on the fire with that view, and
the symbol impressed upon the script itself. There was no halt-
ing in the intention of the testator, between the commencement
and the completion of the act ; for, to the time of his death, he
believed the will was destroyed.

It is seen from the cases cited, and the rule we have laid down,
that the much or little of the burning of the script is not material,
and*when the reason of requiring the symbol to be impressed on
the script is considered, it cannot be important. The symbol is
nothing but the act showing the intention of the testator, and
when that appears on the paper, the evidence from the act is
complete, and the testator has completed his intention. It would
be singular, that, if the slightest burning of a house, on an indict-
ment for arson, should be sufficient to take the life of the incen-
diary, as it is, that a similar burning should not, in a civil case,
be sufficient to revoke a will. The language upon this point, in
the act taking away the benefit of the clergy, is the same as in the
act we are considering. Rev. Stat., ch. 34, s. 7: "If any person
shall willfully and maliciously burn,''' 1 etc. If any portion of
the building is burnt, it is sufficient to bring the case within the
statute.

Judgment affirmed.

TEARING.— NO ANIMUS REVOGAND1.
Giles and Clark v. Warren and Other§.

English Court of Probate, 1872.
(L. R. 2 P. &D. 401.)

The plaintiff propounded the will of Daniel Giles, of Hackney,
Middlesex, dated November 24, 1 866. Due execution was proved.
Having gained a belief, from talking with a Mr. Hillstead, that the

BURNING SURREPTITIOUSLY PREVENTED. 349

will was invalid, testator tore it in pieces as useless. Soon after,
thinking his belief might be erroneous, he picked up and preserved
the pieces.

Lord Penzance. 1 — I think in this case there was no revocation.
The fact that a testator tears or destroys his will is not itself suffi-
cient 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 revocancli. He must intend by the act to revoke some-
thing 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 re-
voke it if he does not treat it as being valid at the time when he
sets about to destroy it. According to the evidence the testator, in
consequence of some conversation he had had with Hillstead, was
under the impression that he had made no valid will, and, as being
useless, he tore the document up and threw it on the fire. That is
no revocation. W hat happened afterwards was not material. If
the will had been once revoked, the testator could not set it up
again by subsequent declarations.

BURNING SURREPTITIOUSLY PREVENTED.
Doe dein. Reed against Aliee Harris.

Court op King's Bench, 1837.

(6 Ad. & El. 209.)

Ejectmknt.

The lessor of the plaintiff claimed as heir, the defendant ae
devisee of John Reed. The question was whether a certain will of
.lulm Reed had been duly revoked.

The testator, an old and infirm man. died December 31, L834.

The learned trial judge (Patteson) stated to the jury that if they

believed the evidence of Esther Treharne, and were satisfied that.
the testator threw the will on the lire intending to burn it. that
Alice Barris tooi it off against his will, that he afterwards insisted

1 Sir .1. I'. Wilde, Judge <>f the Court «>r Probate, waa on April (i, I860,
created Baron Penzana

350 REVOCATION AND REPUBLICATION.

on its being thrown on the fire again, with intent that it should be
burnt, and that she then promised to burn it, there was a sufficient
cancellation within the statute. Verdict for plaintiff. Rule nisi
for new trial on ground of misdirection.

Chilton aud James now shewed cause.

John Evans and E. V. Willia?ns, contra, were stopped by the
court.

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, 1 as I ought. There something
had been done which the court considered to be a burning and a
tearing of the will. [In that case,] The testator is described, not
as merely having done something to the corner of the will, but as
having given it " something of a rip with his hands," and so tore
it "as almost to tear a bit off." It is plain that, on the production
of the instrument, it would appear (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 tearing or burning of the in-
strument itself, a mere singeing of the corner of an envelope is
not sufficient. To hold that it was so would be saying 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 burnt ; 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.

Opinions to the same effect were rendered by Lord Penman, C.
J., and Coleridge, J.

Rule absolute.

ONLY SLIGHT BURNING.
Bibb on the demise of Mole and Wife v. Thomas.

English Court of Common Pleas, 1776.

(2 Wm. Blackstone 1043.)
Ejectment.

On trial before Hotham, Baron, the question was, whether a will
made by one William Palin was duly revoked. It appeared in
evidence that Palin (who had for two months together frequently

1 2 W. Bl. 1043 ; given post.

ONLY SLIGHT BURNING. 351

declared himself discontented with bis will), being one day in bed
near the fire, ordered Mary Wilson, who attended him, to fetch his
will, which she did, and delivered it to him ; it being then whole,
only somewhat creased. He opened it, looked at it, then gave it
something of a rip with his hands, and so tore it as almost to tear
a bit off ; then rumpled it together, and threw it on the fire ; but
it fell off. However, it must soon Lave been burnt, had not Mary
Wilson taken it up, and put it in her pocket. Palin did not see
her take it up, but seemed to have some suspicion of it, as he asked
her what she was at, at which she made little or no answer. He
at several times afterwards said, " That was not and should not be
his will," and bid her destroy it. She said at first, " So I will,
when you have made another"; but afterwards, upon his repeated
enquiries, she told him she had destroyed it (though in fact it was
never destroyed), and she believed he imagined it was so. She
asked him, when the will was burnt, whom his estate would go to . ;
He answered, to his sister and her children. lie afterwards told
one J. E. that he had destroyed his will, and should make no other
till he had seen his brother John Mills, and desired J. E. would
tell him so, ami that he wanted to see him. He afterwards wrote
to Mills in these terms: "Dear brother, I have destroyed my will
which I made, for upon serious consideration I was not easy in ray
mind about that will." Afterwards desires him "to come down,
for if I die intestate it will cause uneasiness." He, however,
died without making any other will. The jury, with whom tin'
fudge concurred, thought this a sufficient revocation of the will,
and therefore found a verdict for the plaintiff, the lessee of the
heir-at-law.

Grose moved for a new trial, because this was not a sufficient
revocation within the statute of frauds.
Davy and Adair shewed cause.

And i» ,■ tot. ('"/-. (/a Grey, C. J., Goidd, Blactetone, and
Wares, JJ.) -This is a suflficienl revocation. A revocation under
the Btatute may be effected, either by framing a new will amount-
ing to a revocation of the first, or by some art done to the instru-
ment oi- will itself, \ i/., burning, tearing, cancelling, or obliteration
and consent. Bui these must be done a/nimo revocemdi. Onyona
and Tryers [Onions v.. Tyrer] ; ' Hide and Bide [Hyde v. Hyde],

'1 P. Win 848,

352 REVOCATION AND REPUBLICATION.

1 Equ. Cas. Abr. 409. Each must accompany the other ; revoca-
tion is an act of the mind, which must be demonstrated by some
outward and visible sign or symbol of revocation. The statute
has specified four of these ; and if these or any of them are per-
formed in the slightest manner, this, joined with the declared in-
tent, will be a good revocation. It is not necessary that the will,
or instrument itself, be totally destroyed or consumed, burnt, or
torn to pieces. The present case falls within two of the specific
acts described by the statute. It is both a burning and a tearing.
Throwing it on the fire, with an intent to burn, though it is only
very slightly singed, and falls off, is sufficient within the statute.
Kule discharged.

SIGNATURE TORN OFF.

In the Goods of Samuel William L-ewis (deceased), on

motion.

English Court op Probate, 1858.

(1 Sw. & Tr. 31.)

The deceased, in this case, died on the 22d of December, 1857;
on the 15th of the same month, being then in extreme illness,
he requested his cousin, Robert Lewis, to prepare a will for him,
which was accordingly done, and the will was duly executed ; it
was then, by the deceased's desire, delivered to his mother, Rebecca
Lewis, who retained possession of it till the 21st of December,
when, at the deceased's request, she redelivered it to him in the
same state as it had been delivered to her after the execution. On
the following day the deceased died, and whilst his body was be-
ino- laid out, the will was discovered under the bolster of the bed
upon which he was lying, but that part of it which had contained
his signature, and the attestation clause and signature of the sub-
scribing witnesses, was torn off and could not be found. The de-
ceased, after executing his will, expressed his satisfaction at hav-
ing done so to Robert Lewis, who continued in attendance upon
him till his death. It did not appear that the deceased, in any
way, mentioned the subject to any other person. Under these
circumstances his widow, who was appointed executrix of the will,
wished to take the opinion of the Court of Probate.

Dr. Waddilove moved the court to decree probate of the paper

SIGNATURE SCRATCHED AWAY. 353

to the widow as executrix therein named, but presumed that the
court would feel itself unable to do so.

Sir C. Cresswell : I must, of course, reject your motion. The
widow is entitled to a grant of letters of administration of the
goods of the deceased as dead intestate.

[Though a seal is unnecessary, yet, if the will states that it is
"signed and sealed," tearing off the seal may suffice to revoke
it. "Price v. Powell, 3H.&K 341 ; see WilUf White, 25 K J.
Eq. 501. For other acts of tearing, Williams v. Tyley, Johns.
(Eng.) 530.]

SIGNATURE SCRATCHED AWAY.
In the Goods of Henrietta €r. Morton.

High Court op Justice, Probate Division, 1887.
(12 P. D. 141.)

Henrietta G. Morton, late of Newcastle-on-Tyne, deceased,
died January 26, 1887, having duly executed a last will bearing
date September 16, 1853. After her death the will, which had
remained in her possession, was found in a trunk with the signa-
tures of the testatrix and the attesting witnesses scratched out as if
with a penknife. At the bottom of the will there was a memoran-
dum in the handwriting of the deceased, dated "November, Satur-
day, 1861 " — but not executed — whereby for reasons given the
will was declared to be cancelled.

Butt, J. — I do not think there is any difficulty in the case.
What the testatrix did may be regarded as lateral cutting out. The
paper i- not pierced, but the signatures are scratched away. I
think the will has been revoked, and I grant administration to tin
applicant.

[So cutting <»iit the signature: Eobbs v. Knight, 1 Curt. 7<is.J

CANCELLATION op SIGNATURES.
Semmei v». Semmei e1 al.

Maryland Court <>v Appeals, 1826.
(7 Harr. A .1 888 I

Appeal from a decree of the ( >rphans' < lourl of ( lharlee < 'ounty,
refusing to admit to probate and record a paper offered a.- the last
will ami testamenl of [gnatiua Semmes, deceased.
28

354 REVOCATION AND REPUBLICATION.

The cause (which is sufficiently explained in the opinions deliv-
ered by this court) was argued before Buchanan, Ch. J., and
Earle, Martin, Stephen, Archer, and Dorsey, J J.

Buchanan, Ch. J., delivered the opinion of the court. It is ob-
jected, on the part of the appellant, that the Orphans' Court did
wrong in not admitting to probate a paper, purporting to have been
a duly executed will of Ignatius Semines, on two grounds : First,
Because the obliterating the name of Ignatius Semmes, and also the
names of the three subscribing witnesses, does not appear to have
been done by the deceased ; and, secondly, That if it was, it did
not amount to a revocation of the will.

With respect to the first proposition, it does not appear to admit
of a doubt, that each obliteration was made by the deceased, Igna-
tius Semmes.

The memorandum at the foot of the paper, and just below the
signatures, in these words : " In consequence of the death of my
wife, it is become necessary to make another will," and signed
Ignatius Semmes, is admitted to be in his handwriting. The oblit-
erations were made by drawing a pen frequently, and in different
directions, across his own signature, and the names of the subscrib-
ing witnesses ; and the ink with which it was done, is proved to
have been the same with which the memorandum at the foot of
that paper was written. Hence it is manifest, that the oblitera-
tions, and the memorandum, were simultaneous acts, and by the
deceased himself ; and it would be straining overmuch to admit
the supposition, that it might have been surreptitiously done by
another, in the absence of any testimony to cast the slightest shade
of suspicion upon anybody. The memorandum must be consid-
ered as connected with the obliterations as a part of the res gestae,
and as explanatory of the transaction. It is equivalent to a decla-
ration, that he had made the obliterations, for the reasons assigned
(the death of his wife), which made it necessary to make another
will.

Considering then the obliterations to have been made by the de-
ceased, the second objection presents itself, to wit, that the will
was not thereby revoked ; in support of which several authorities
were cited and relied on in argument, but none of them sustain the
proposition, and it would be somewhat strange if they did.

In Onion vs. Tyrer, 1 P. Williams 343, the deceased, by a wi*

SIGNATURE SCRATCHED AWAY. o.M

duly executed to pass real estate, devised lands to trustees, to cer-
tain uses, and afterwards made another will devising the same lands
to other trustees, but to the same uses, with a clause of revocation
of the first, and attested by three witnesses, who did not sign their
names in the presence of the testator. Supposing the second will
to be duly executed to pass real estate, the testator caused the first
to be cancelled. But it was determined, that the witnesses to the
second, not having signed their names in the presence of the testa-
tor, it was void as to the land, and could not therefore have the
effect to revoke the former; and the cancelling of the first will,
under the presumption that the second was good and effectual, was
held not to amount to a revocation of it, on the ground that it was
done by mistake. The case of Hyde vs. Hyde, 8 Yin. Al>. 142,
was clearly a case of mistake. And the case of Mason vs. Limbrey,
eited by Lord Mansfield, in 4 Burr. 2515, was decided on prin-
ciples not at all applicable to this case.

The cancelling of a will is said to be an equivocal act, and not
to effect a revocation, unless it is done animo revocandi. And
where it is a dependent relative act, done with reference to an-
other, which is meant and supposed to be good and effectual, it may
be a revocation or not, as that to which it relates is efficacious or not.
As where a man having duly executed one will, afterwards causes
another to be prepared, and supposing the second to be duly exe-
cuted, under that impression alone cancels the first. In such case
it has been held, that on the second turning out not to have been
duly executed, the cancelling the first, being done by mistake and
misapprehension, would not operate as a revocation.' But never
where a man has deliberately and intentionally cancelled his will,
a- in this case, in the entire absence of all accident or mistake, not-
withstanding he may, at the time, have intended to make another
will.

It ie -aid. and indeed it would seem from the testimony, that
[gnatius Semmes <lid not intend to die intestate, but however that

may be. we cannol make a will for him. By the will, which is

now attempted to be sel up, he had disposed of the whole estate to
his wile, in trust for the "use and support of herself , and the

i 1 Jarman on Wills, 188 (and Randolph & T.'a Am. aote, vol L, p. 894,

note 17).

356 KEVOCATION AND REPUBLICATION.

benefit, education and support " 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 bottom 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 cancel-
ling. In Burtenshaw vs. 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 found together among his papers both cancelled ;
and it was proved that he had sent for an attorney to prepare an-
other 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 uncancelled duplicate of the first, and it was determined
that it did not. That case surely cannot be called in aid of this will.

Decree affirmed.

WILL NOT FOUND. — PRESUMPTION.

The general rule is, that if it is shown that a will was in exist-
ence in testator's lifetime, and in his custody, and that it could not
be found at his death, it will be presumed that he destroyed it
animo revocandi. 1 But this presumption may be rebutted, 2 as
illustrated in the following cases.

WILL NOT FOUND.— INSANE TESTATOR.— NO PRESUMPTION.

Sprigge v. Sprigge.

English Court of Probate, 1868.
(L. R. 1 P. & D. 608.)

The testator, Oliver Sprigge, was a surgeon at Peterborough.
On the 15th of September, 1S58, immediately after his marriage,
he duly executed a will in favour of his wife, and of any children
who might be born of the marriage. In 1863 he became of un-

1 Betts v. Jackson, 6 Wend. 173 ; Idley v. Bowen, 11 Wend. 227 ; Lillie v.
Lillie, 3 Hagg. 184.
* Colvin v. Fraser, 2 Hagg. 266 (325) ; Welch v. Phillips, 1 Moo. P. C. 299.

WILL NOT FOUND. — WHEN NO PRESUMPTION. 357

sound mind, and in November, 1865, he was confined in a lunatic
asylum, where he remained until his death on the 3d of December,
1867.

The plaintiff, as executrix, propounded the contents of the will
as contained in a copy. It was proved that the will was the same
as the copy propounded ; that after the execution it was in the
custody of the deceased, and it remained in his custody ; that after
his death search was made for it, and it could not be found. There
was no evidence of destruction of the will, and the latest date at
which it was proved to have been in existence was about two
months after its execution, when it was seen in the deceased's
desk. The defendants, who were the children of the marriage,
and the only next of kin of the deceased, appeared by their guard-
ian and pleaded a revocation. The cause came on for hearing be-
fore the court, without a jury.

I Nov. 17, 1868.) Sir J. P. Wilde.— The question in this case
is whether, under the circumstances that happened, the court
ought or ought not to consider that the will had been revoked —
the fact being that it remained in the custody of the testator from
the time when it was made, and that upon his death it was not to
be found. The presumption of law in this state of things, under
ordinary circumstances, is, that it was destroyed animo revocandi.
It appeared in this case that the testator, during a considerable
portion of the time that elapsed between the making of the will
and his death, was insane. The question, therefore, arises, whether
the court ought to apply the ordinary presumption of law to such
a case. The case of Harris v. Berrall 1 was cited, and I am of
opinion that it is an authority directly in point. The will in that
case had been mutilated, not destroyed, and the question was,
whether it had been mutilated a/nimo cancellandi ; the deceased
having been insane during a portion of the time between the exe-
cution ami her death. Sir C. Cresswell said: 2 " If there had been
no evidence to fix one time or another for its mutilation, I still

think that it would have Keen entitled to probate. Bj 1 Viet., e.

26, every will is required to be executed as therein prescribed. If
it is once proved that a will has been duly executed, I hold that
it is entitled to probate, unless it is also shewn thai it has been re-

1 Sw. & Tr. 153. « 1 Sw. & Tr. al pp. 154, 155.

358 REVOCATION AND REPUBLICATION.

voked by one of the several modes pointed out by the statute ;
and I am of opinion that the burden of shewing that it has been
so revoked lies upon the party who sets up the revocation. One
of the modes of revocation pointed out by the statute is tearing
with an intention to revoke; but an insane person cannot be said
to have any intention. The will in this case was in the custody
of the deceased at the time she was of unsound as well as of sound
mind. Shortly before her death it was discovered to have been
torn by her. The burden of shewing that it was not done after
she became insane, but at a time when she was of sound mind, is
cast upon the plaintiff who sets up the revocation of the instru-
ment." I entirely agree with the opinion of Sir C. Cresswell,
and the principle which he lays down as to a case of mutilation,
applies equally to a case of destruction. The short proposition is,
that the burden of shewing that the revocation was done not after
the testator became insane, but when he was of sound mind, is
cast on those who set up the revocation. In this case there was
no evidence to shew when it was done. Therefore, those who
sought to set up a revocation failed in establishing the facts on
which the presumption of revocation would rest. The paper pro-
pounded by the plaintiff is entitled to probate. The costs of all
parties will be allowed out of the estate.

WILL NOT FOUND.— WHEN NO PRESUMPTION.
John Schultz and others v. William Schultz and others.

New York Court op Appeals, 1866.
(33 N. Y. 653.)

Davies, Ch. J. — This action is instituted to establish the will of
Frederick Schultz, deceased, on the ground that the same has
been lost or destroyed by accident or design. The action was
tried by the court without a jury, and the following facts found :
That Frederick Schultz, on the 23d day of October, 1863, duly
made and executed his last will and testament in writing, in due
form of law, as a will of real and personal estate, and the same
was duly attested ; by the terms of which he did dispose of all his
real and personal estate, and after the execution thereof, he de-
livered the same to Frederick B. Schultz, as custodian, to be by
him retained ; that Frederick B. Schultz took such will to hold

WILL NOT FOUND. — WHEN NO PRESUMPTION. 359

and preserve, and carried the same to bis residence for that pur-
pose ; that the provisions of that will are clearly and distinctly
proved by the testimony of two credible witnesses, and are as set
forth in the testimony in the record ; that on the 20th day of Sep-
tember, 1805, the said Frederick Schultz departed this life, with-
out having made any other will, and leaving him surviving his
widow, Elizabeth Schultz, and his children, John F. Schultz, Will-
iam Schultz, and Eliza J. Teal, his only heirs-at-law and next of
kin. And the court found, as matter of law, that the foregoing
evidence was not sufficient to show that the said last will and testa-
ment was in existence at the time of the decease of the said Fred-
erick Schultz, or that the same was fraudulently destroyed in the
lifetime of the testator, and decided that the complaint should be
dismissed, and rendered judgment for the defendants, and which
judgment, on appeal, was affirmed at the General Term. The
plaintiffs now appeal to this court.

The provisions of the Revised Statutes of this State, applicable
to the case now under consideration, are as follows :

Sec. 37. " No will in writing, except in cases hereinafter men-
tioned, 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; or unless such will be burnt, torn, canceled,
obliterated, or destroyed, with the intent and for the purpose of
revoking the same, by the testator himself, or by another person
in his presence, by his direction and consent; and when so (lone
by another person, the direction and consent of the testator, ami
the fact of such injury or destruction shall he proved by, at least,
two witnee Section 86 enacts : " Whenever any will of real

or personal estate shall be lost or destroyed by accident or design,

the Supreme Court shall have power to take proof of t lie execu-
tion and validity of BUch will, and to establish the same as in the

ca e of losl deed ." Section 90 declares, thai " no will of any tes-
tator who shall die afto r this chapter shall take effed as a law, shall
be allowed to be proved as a losl or destroyed will, unless the same
shall be proved to have been in existence at the time of the deatb
of the testator ; or be shown to have hen fraudulently destroyed
in the lifetime of the testator, nor nnlese it- provisions shall be

360 REVOCATION AND REPUBLICATION.

clearly and distinctly proved by, at least, two credible witnesses, a
correct copy or draft being deemed equivalent to one witness." (3
R. S., 5th ed., p. 144, etc.)

The existence of the will of this testator, its due execution, and
its provisions were clearly and distinctly proven in the manner
required by law. If the will had remained in the custody of the
testator, or it had appeared that, after its execution, he had had
access to it, the presumption of law would be, from the fact that
it could not be found after his decease, that the same had been
destroyed by him, animo revocandi. (Jackson v. Betts, 6 Wend.
173 ; Idley v. Brown [Idley v. Bowen, 11 Wend.] 227 ; Knapp
v. Knapp, 10 N. Y. 276.) But that presumption is entirely over-
come and rebutted, when it appears, as it did in the present case,
that, upon the execution of the will, it was deposited by the tes-
tator with a custodian, and that the testator did not thereafter
have it in his possession or have access to it. It is undeniable,
therefore, that the testator himself did not burn, tear, cancel, obliter-
ate, or destroy the will. It does not appear, or is it pretended, that it
was done by another person in his presence, by his direction and
consent. At any rate, such injury or destruction has not been
proven by two witnesses. It follows clearly, therefore, that the
will of this testator has never been legally revoked or canceled.

That it has been lost or destroyed by accident or design is con-
ceded, and the Supreme Court had, therefore, jurisdiction to take
proof of the execution and validity of the will, and to establish the
same. But the learned judges of the Supreme Court have sup-
posed that it could not be established unless there was affirmative
proof that the will was in existence at the time of the testator's
death, or that it was shown that it was fraudulently destroyed in
the testator's lifetime. Both or either of these propositions may
be established, as well by circumstantial as positive evidence :

1. As to the existence of the will at the time of the testator's
death, we have the conceded fact of the execution of the will, and
of the deposit of the same with a custodian for safe keeping. The
custodian testifies that, after it was delivered to him, at the time of
its execution, he never parted with its possession, but locked it in
a trunk, and supposed it was there at the time of the testator's
death. Upon search made for it after his death, it could not be
found. There is not a scintilla of evidence or a circumstance to

WILL NOT FOUND. — PRESUMPTION. — EVIDENCE. 361

show that the testator ever had possession of the will after its exe-
cution and delivery to the custodian. It follows, therefore, as a
legal conclusion, that the will was in existence at the time of his
death (if not then fraudulently destroyed or lost), in which event,
it being now lost or destroyed, either by accident or design, it
should be established as a valid will.

2. If the will was not in existence at the time of the testator's
death, then it follows equally clear that it must have been fraudu-
lently destroyed in his lifetime or lost. The fraud mentioned and
referred to in this connection is a fraud upon the testator, by the
destruction of his will, so that he should die intestate, when he
intended and meant to have disposed of his estate by will and
never evinced any change of that intent. It is undeniable, from
the facts in the record, that either this will was in existence at the
time of the death of this testator, or that it had been destroyed in
his lifetime, without his knowledge, consent or procurement, or
accidentally lost. If so destroyed, it was done fraudulently as to
him, and, in judgment of law, the legal results are the same pre-
cisely as if it had continued in existence up to the time of his
death. In either contingency, it was his last will and testament,
and its loss or destruction, either by accident or design, being
proven, it is the duty of the court to establish it as the will of this
testator.

The judgment of the Supreme Court should be reversed and a
new trial ordered, costs to abide the event.

Judgment reversed and new trial ordered.

WILL NOT FOUND.— PRESUMPTION. -INTERNAL AND EX-
TRINSIC EVIDENCK.

Patten v. Ponlton ami Others,

English Coubt op Probate, 1858.

(1 Bw. A- Tr. 55.)

Sib C. Cr<s.s ,/-,■//. This is a cause of propounding the will of
Julia Clarenza, deceased, promoted by .lames Patten, the executor
therein named, against II. L Poulton, hereldesl brother, and others,

next of kin. Several witnesses were examined mi Patten's alle-
gation ; the next of kin did not bring in any allegation or ad

minister any interrogatories. Tin' following fact- are proved:

362 REVOCATION AND REPUBLICATION.

Julia Clarenza, formerly Poulton, in 1806 married John Peche,
and by him had three children, two sons and a daughter ; she then
discovered that before the marriage Peche was married to another
woman, who was still living, and thereupon immediately separated
from him, and never cohabited with him again. She afterwards
married Count Clarenza, who died in 1822, and by him had no
issue. John Peche died in 1823, having made a will in favour of
his three children above mentioned, his property being sworn
under £3,000. Julia Clarenza was always devotedly attached to
her children, who grew up under her care. The daughter married
an Austrian, one son entered the Austrian army, and the other
settled at the Cape, and she maintained a correspondence with
them during the whole of her life, always manifesting the strongest
affection for them, and anxiety for their prosperity. After Count
Clarenza's death she lived at Blackheath, in Kent, and when there,
often spoke to a lady with whom she was intimate, of her anxiety
about them, and of her intention to settle her affairs, so that they
might enjoy the small property of which she had to dispose. In
1837 she was about to remove to Torquay, and then gave instruc-
tions in her own handwriting to Mr. Patten, a solicitor, for the
preparation of her will. He prepared one according to those in-
structions, and, at her request, consented to act as executor. The
will was executed on the 10th of October, 1857, and at the same
time the attestation clause and the names of the attesting witnesses
were copied on to the draft, which Mr. Patten retained, the will be-
ing given to the deceased. She afterwards told a Mrs. Kipps, an
intimate friend resident at Blackheath, that she had settled her
affairs ; and in 1844, writing to the same lady, said, " My mind
seems now at ease, that the £600 is now secure in the bank for my
children in case of sudden death." In October, 1837, the deceased
removed to Torquay, and remained there for some time occupying
part of the house in which her brother R. L. Poulton resided.
She afterwards removed to Dawlish, and there occupied part of a
small cottage till her death, which happened in September, 1846.
Her brother thereupon went to Dawlish and searched for a will
without success , when so doing he burnt some papers, which ap-
peared to him unimportant, and it was not imputed that he had
intentionally destroyed a will. The delay that has occurred in
propounding the will having been accounted for, I make no obser-

WILL NOT FOUND. — PRESUMPTION— EVIDENCE. 363

vation respecting it. The case, then, stands thus : the executor has
proved the due execution of a will, and that the original cannot be
found, and he has given satisfactory secondary evidence of the
contents. But, on the other hand, it is said that, as the will was
in the keeping of the deceased, and at her death could not be
found, it must be presumed that she destroyed it animo revocandi.
This has sometimes been called a presumption of law ; but I think
that Sir J. Nicholl, in Colvin v. Fraser (2 Hagg. 325), and Parke,
B., in Welsh v. Phillips (1 Moo. T. C C. 302), more correctly
designate it a presumption of fact, and there can be no doubt, that
evidence of a will being left in the keeping of the party who made
it, and that it cannot be found at his death, is sufficient, in the ab-
sence of circumstances tending to a contrary conclusion, to warrant
an opinion that the maker of the will destroyed it. But it is a
presumption that prevails only in the absence of circumstances to
rebut it. and is. therefore, commonly called a prima facie pre-
sumption. It may be fortified or it may be rebutted by many cir-
cumstances. Those commonly relied on arc declarations either of
good will towards the parties benefited by the will, and of an ad-
herence to the will as made, or, mi the contrary, of dissatisfaction
and change of mind respecting them. In Saunders v. Saunders
(6 X'-. ( 'a-. 522) Sir II. Jenner Fust said, " The strongest proof of
adherence to the will, and of the improbability of its destruction,
arises from the contents of the will itself." In the present case I
find no extraneous circumstances to fortify and suppori the prima
fade presumption ; the lady changed her residence twice after the
will was made, and she <l(.c- nol appear to have had any place for
the deposit and safe custody .of papers of importance; the prob-
ability <>(' the will !>< ing lost by accident is not therefore excluded.
Again, her brother destroyed some papers, the particular nature oi
which is not ascertained. It is not suggested that he willfully de-
stroyed a will, nor i it probable that lie could destroy the will in
question, which would be of considerable bulk, withoul some ex-
amination; but the possibility of its being so destroyed is no1 ex-
clu led. On the other hand there are many circumstances tending
to negative the presumption: (lie constant undeviating affection
manifested by the deceased for her children, thai the will \\;i>
made under the influence of that feeling as expressed al the time
and afterwards, thai Bhe never expressed a desire to benefit !>■.

364 REVOCATION AND REPUBLICATION.

her will any other person, and above all, the fact that she perfectly
well knew that her children were illegitimate (although not by any
fault of hers), and that consequently, if she died intestate, they
would receive no part of her property, but the whole would be
divided amongst others. Here then, as in Saunders v. Saunders,
it may be said, that the contents of the will itself show the im-
probability of its destruction. These circumstances combined ren-
der it so improbable that the deceased would willfully destroy a will
made in favour of her children, that I cannot, from the mere cir-
cumstances of its not being found, presume that she did so. The
will then having been duly executed, the contents of it having
been duly proved by secondary evidence, and it not being estab-
lished that the deceased revoked that will, the court must give
effect to it by pronouncing for its force and validity, and by de-
creeing probate of the draft.

WILL NOT FOUND.— PRESUMPTION REBUTTED.
Fo§ter's Appeal.

Pennsylvania Supreme Court, 1878.
(87 Penn. St. 67.)

Before Agnew, C. J., Sharswood, Jfercur, Gordon, Paxson,
Woodward, and Truiikey, J J.

Appeal from the decree of the Orphans' Court of Wayne
County. The facts are sufficiently stated in the opinion.

Agnew, C. J. — That Isaac P. Foster made and executed in due
form of law a will in writing on or about the 5th of June, 1875,
is an indisputable fact. That the contents of this will are clearly
and fully proved, both by testimony and by written memoranda
in the testator's own handwriting, is equally plain, and no question
arises as to the number of witnesses, the contents being proved by
two, as well as by the memoranda furnished by the testator him-
self. The will not being found after the testator's death and dili-
gent search, two material questions arise upon the assignment of
errors :

1. Whether the presumption of revocation by the testator him-
self is rebutted by the evidence.

2. Whether the contents can be proved by parol evidence.

There is ample evidence to rebut the presumption of a revoca-

WILL NOT FOUND.— PRESUMPTION REBUTTED. 365

tion by the testator. Many facts contribute to this result, among
which these leading circumstances appear. Isaac P. Foster was
never without a will for the last fifteen years of his life, having
had seven written under the supervision of counsel and made
necessary by the nature and amount of his estate, the number of
his children, and advancements made to some, and those matters
were often dwelt upon by himself. He, himself, regarded his will
of 1875 as existing until and while lying on his death-bed, when
too feeble to destroy it without assistance. Up to this time he
made efforts to procure a codicil to alter the will in a certain aspect,
made necessary by the failure in the payment of interest on cer-
tain bonds, but being prevented by the extremity of his last illness,
died under a belief that he had arranged with his executors to
pay these legatees money instead of the bonds. These and cor-
roborating circumstances show that the testator had no thought of
a revocation.

That the presumption of a personal revocation can be thus re-
butted is shown by the authorities cited by the appellees. The
presumption of revocation arises from the fact that the will was
known to be in the possession of the testator himself, and that it
cannot be found after his death. It is, therefore, a natural pre-
sumption merely, because it cannot be supposed the testator would
part with it, unless he intended to put it out of the way, and
because it is out of the way and cannot be accounted for, the pre-
sumption that he intended to revoke it arises. Like other natural
presumptions drawn from evidence, and not declared <hjxr<\ for
some legal end. it must give way to stronger evidence of the con-
tinued existence of the will, and the testator's reliance upon il as
the disposition he had made of his property.

The will then being in existence at the death of the testator un-
revoked by him, its loss or accidental destruction differs not from
the loss or destruction of any other solemn instrument, such as a
deed, a note or bond, or a record. The contents, therefore, may
be proved in like manner, as shown by the authorities cited. It
ie a postulate of the question that the testator left behind him at

death, a la-t will in writing, legally executed and published, and

unrevoked by any acl or direction of his. That the law will not

tolerate any making of a will for him by other means than hisown

act in writing duly executed, is clear. Hut Mich B will having a

366 REVOCATION AND REPUBLICATION.

legal existence, yet accidentally lost or destroyed, the establishment
of its contents is not the making of a new will, but a restoration
merely of that which the testator himself made and left behind
him to govern his estate. There is no greater sanctity, in this re-
spect, than the restoration by parol evidence of other instruments
equally solemn and having an equal effect in the disposition of
property. The law simply comes' in aid of his own legally per-
formed act, to prevent his intentions from being frustrated or
defrauded. The authorities upon the republication of wills, made
before the passage of the act of 1833, have a bearing and may
therefore be cited — some not appearing in the paper-books. Hav-
ard v. Davis, 2 Binn. 406 ; Jones v. Hartley, 2 Whart. 103, citing
many cases ; Campbell v. Jamison, 8 Barr. 498 ; Jack v. Shoen-
berger, 10 Harris 416 ; Fransen's Will, 2 Casey 203. We cannot
perceive that the learned judge erred in ruling either point.
(Here follows a discussion of a question of practice.)

Decree of the Orphans' Court affirmed.

[Also Weeks v. McBeth, 14 Ala. 474 ; Minkler v. Minkler, 14
Vt. 125.]

LOST WILL.— "WHERE LOSS EXPLAINED.
In the Goods of Gardner, on motion.

English Court op Probate, 1858.
(1 Sw. & Tr. 109.)

The deceased in this case, a captain in the 38th Bengal Light
Infantry, made his will at Cawnpore, in the East Indies, in May
or June, 1855. The deceased, his wife, and their two only chil-
dren, were in Delhi in May, 1857, when the mutiny broke out;
they escaped from that city, leaving all their property behind them,
among which was the deceased's writing-case, in which his will was
deposited. Captain Gardner died at Kussowlee on the 28th of
June, 1857, leaving his widow and two only children, the only
persons entitled in distribution in case of an intestacy.

The joint affidavit of Mrs. Gardner and of Lieut. Hawes, one of
the attesting witnesses, established the due execution of the will in
1855, and its contents, namely, leaving all his property to his wife,
and making her sole executrix. Mrs. Gardner spoke of having
read it over, and to having seen it in her husband's desk as lately

WILL FOUND MUTILATED. 307

as February, 1857, and to her assurance that it had not been re-
voked or destroyed by her husband prior to their leaving Delhi
and that since the recapture of Delhi nothing had been heard of
the will. The property amounted to about £1,000.

Dr. PhUlimore, Q. C., moved the court "to decree probate of
the will as contained in the affidavit to be granted to the widow,
the sole executrix named therein, limited until the original will or
a more authentic copy thereof shall be brought into and left in the
registry of the court." He submitted there was before the court
sufficient proof of the execution and contents of the original will,
and cited Trevelyan v. Trevelyan, 1 Phill. 153 [given ante].

Sib C. GressweU: The case of Brown v. Brown, lately decided
in the Court of Queen's Bench and on which I have already acted,'
went beyond the present case. There parol evidence was held
sufficient to prove the contents of a will, and thereby revoke a
will of earlier date, which was in existence at the testator's death.
I grant the motion.

WILL FOUND MUTILATED— PRESUMPTION.
Bennett, Ex'r, etc. v§. Sherrod.

North Carolina Supreme Court, 1843.
(3 Ired. L. 303.)

Appeal from the Superior Court of Law of Martin County, at
Spring Term, 1843, his Honor Judge Manly presiding.

Thi>wa> an issue to try whether a certain instrument of writing,
propounded by the plaintiff, was the last will and testament of
John Sherrof, deceased.

After the evidence was in, the counsel for the defendant asked
the court to instruct the jury, if they believed the instrument of
writing was found in the possession of the deceased in a mutilated
state, thai there was a presumption of law that the mutilation was
the act of the deceased, subject to be rebutted by the parties pro
pounding the will. The court declined giving this instruction.

There was a verdict establishing the will, and from the judgment
thereon the defendant appealed.

' In the Goods of William Brown, l Bw. & Tr. 82. 8 El. & in. 876.

3GB REVOCATION AND REPUBLICATION.

Daniel, J. — The authorities cited by the counsel for the appellant
shew, that, where a will has been duly executed and left with the
testator, if it be mutilated in his lifetime while in his possession,
or upon his death if it be found among his repositories, cancelled
or defaced, in such cases, in the absence of other proof, the tes-
tator is presumed to have done the act ; and the law further pre-
sumes, that he did it animo revocandi. And if the repository of
the will was at the same time accessible to the testator and another
person and the mutilation was done in the lifetime of the testator,
the law would presume it was done by the testator. He had a
right to do it, and a fraud will not be presumed in the other per-
son. ' All the rules above stated, we think, may be taken for good
law, but it seems to us that they are not apposite to the case now
before us. There is no evidence in the cause, that the will was
found mutilated in the lifetime of the testator, or found mutilated
among his papers immediately on his death. It was on the day
after his death that application was made to his widow for the will.
She, who is the party defendant in this issue, acknowledged that
the will or paper was there, but refused then to deliver it. She
then locked the drawer, where the paper was, and put the key in
her bosom. There is no evidence that the will was, at that time,
mutilated, for her declarations then made do not prove that fact,
but rather import the contrary. On the second day after the tes-
tator's death, and after the widow had every opportunity of muti-
lating the paper, with which she was dissatisfied, the will was found
by the plaintiff in the drawer in its present state. It seems to us,
so far from its being the duty of the judge to charge the jury, that
the law presumed this mutilation to have been the act of the tes-
tator, that it would have been erroneous if he had so charged. We
are of opinion that the judgment must be affirmed.

Judgment affirmed.

Per Curiam.

[A principle similar to that here applied, is also enforced in cases
of wills not found, as already stated, where it is not until some-
time subsequent to testator's death that search is made, and in the
meantime a person interested to destroy the will has been in posi-
tion to do so if it did exist. This is very well illustrated in Finch
v. Finch, L. R. 1 P. & D. 371.

For the presumption, where will is found mutilated among tes-

MUTILATED WILL AMONG OLD PAPERS. 369

tator's papers, Christmas v. Whinyates, 3 Sw. & Tr. SI ; Stephens
v. Taprell, 2 Curt. 458 (463) ; In re Philp's Will, 46 N". Y. State
Rep. 356 (the latter case, it is to be observed, is recent, and has
only been passed on by the Surrogate and the General Term).]

MUTILATED WILL AMONG OLD PAPERS.
Lawyer v. Smith.

Michigan Supreme Court, 1860.
(8 Mich. 411.)

Error to Washtenaw Circuit.

Application for probate of paper purporting to be the last will
of Gertrude or Gitty Fletcher. Granted by Probate Court ; sus-
tained at Circuit by verdict of jury. The contestants brought
error.

Manning, J. (After passing on certain charges of error.)

But the judge erred, we think, in refusing to receive evidence
of the declarations of the testatrix that she had destroyed her will,
and in not admitting a letter of hers, stating her will was de-
stroyed. Such evidence is not admissible as proof in itself of a
revocation, for the statute provides, " no will, nor any part thereof,
shall be revoked unless by burning, tearing, cancelling or obliter-
ating the same, with the intention of revoking it, by the testator,
or by some person in his presence and by his direction "; " or bv
some other will, codicil or other writing executed in the manner
provided for the execution of a will ": — Conip. L., sec. 283.'!. The
first we hear of the will after its execution in 1824, is the finding
of it by Feeck in 1840, "in a barrel among a lot of waste paper,
newspapers, pamphlets, and some old letters." lie says, "il was
separated at the top, and was in a number of pieces, and the dif-
ferent pieces were -cattered loose among the papers in the barrel."

It Consisted of a number of half sheets of paper, some of which

were separated in two pieces, ami a piece was torn oul of the top.

He gathered them up, matched them, and fastened them at the
top, and kept them in his possession live and a halt years. A will

found as this was, iii a barrel among old letters ami other papers

Of no account, and in the mutilated condition stated, need- BOme

explanation of these circumstances to admit it to probate. The

piece torn out at the top and the .reparation of the half sheets can
24

370 REVOCATION AND REPUBLICATION.

not be accounted for by the age of the instrument. They are evi-
dence of violence, or an intentional injury to the instrument ; but
whether done by the testatrix or some other person ; and if done
by her, whether accidentally, or intentionally and for the purpose
of revoking her will, were questions of fact to be determined by
the jury. To aid them in arriving at a correct conclusion on these
points, and not as separate and independent evidence of a revoca-
tion, we think the declarations of the testatrix should have been
permitted to go to the jury, for what they were worth, under all
the circumstances, See opinion of Chancellor Walworth, in Betts
v. Jackson, 6 Wend. 173.

(Here follows a consideration of the competency of certain wit-
nesses.)

Judgment reversed and a new trial granted.

The other Justices concurred.

WHETHER REVOCATION REVIVES A PREVIOUS WILL.
Picken§, Adm'r v. Davis.

Massachusetts Supreme Judicial Court, 1883.
(134 Mass. 252.)

Appeal from decree of Probate Court, admitting 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 de-
stroyed, or whether in each instance it is to be regarded as a ques-
tion of intention, to be collected from all the circumstances of the
case ; and secondly, if it is 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. Bor-
land, 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 having 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

WHETHER REVOCATION REVIVES PREVIOUS WILL. 371

Ei) "-land and America; and it has been often said that the courts
of common law and the ecclesiastical courts in England are at
variance upon it. See 1 Wms. on Executors (5th Am. ed.) 154—
156, where the authorities are cited. [1 Jarman on Wills, 1-15;
Randolph & T.'s Amer. note, Id., vol. ?>, p. 796, note 23.] The doc-
trine of the ecclesiastical courts was thus stated in 1821, 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 ac-
cording to facts and circumstancc^. , ■ See also Moore v. Moore, 1
Phillim. 406; Wilson v. Wilson, 3 Phillim. 543, 554; Ilooton v.
Head, 3 Phillim. 26; Kirkcudbright v. Kirkcudbright, 1 Hagg.
Ecc. 325 ; Welch v. Phillips, 1 Moore P. C. 299. In Powell on
Dev. (ed. of L827) 527, 52s. a distinction is taken between 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 former,
in such case, although the first will be left entire, and the second
will afterwards cancelled, yet the better opinion seems to be, that
the former is not thereby set up again/' Jarman's note questions
the soundness of the above doctrine (p. 529, n.). While this ap-
parent discrepancy in the respective courts remained not fully
reconciled, in L837, the English Statute of Wills was passed. St. 7
Will. I V. & 1 Vict. c. 26, sec. 22 of whirl, provided that " no will
or codicil, or any part thereof, which shall be in any manner re-
voked, 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." Since the enactment
of this statute, the deci ions in all the courts have been uniform,
that after the execution of a subsequent will which contained an
express revocation, or which by reason of inconsistent provisions
amounted to an implied revocation of ;i former will, such former
will would not l.e revived by the cancellation or destruction of the
later one. Major \. Williams, :: I !urt. Ecc. 132 : Jamee v. < lohen,
Curt. Ecc. 770, 782 ; Brown v. Brown, ^ El. A- Bl. 676; Dick-
inson v. Swatman, 30 L. J. (N. S.) P. & M. 84; Wood v. Wood,

372 KEVOOATION AND REPUBLICATION.

L. E. 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 insuffi-
cient to amount to a revocation, ditto v. Gilbert, 9 Moore P. C.
131. See also Nelson v. McGiffert, 3 Barb. Ch. 158.

In the United States, there is a like discrepancy in the decisions
in different 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. Marvin, 3 Conn. 576, where it was held that the
revocatory clause in the second will, prqprio vigore, operated in-
stantaneously 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 Cohan v. Warford,
20 Md. 357, 391, and the court declared that " a clause in a subse-
quent 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 contain-
ing it." The court further held that the cancellation of a revoking
will, prima facie, is evidence of an intention to revive the pre-
vious 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, in 1860, a similar rule was laid
down, and maintained with great force of reasoning. The opinion
of the court concludes with the following pertinent suggestion :
" 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 coun-
try, as embodied 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 ; Scott v. Fink, 45

WHETHER REVOCATION REVIVES PREVIOUS WILL. 373

Mich. 241. It is to be observed, that some of the foregoing de-
cisions are put expressly on the ground that the later will con-
tained an express clause of revocation. 45 Mich. 246; 20 Md.
392. An examination 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 Dull. 2sti, 290 ; Boudinot v. Bradford, 2 Yeates 170 ;
s. c. 2 Dall. 266 ; Flintham v. Bradford, 10 Penn. St. 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 Kandall v. Beatty, 4 Stew. (N. J.)
643, and cases there cited.

In various States of the Union, statutes have been enacted sub-
stantially 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 better to provide that an earlier will shall not be revived by
the cancellation of a later one. There are, or have been, such
statutes in New York, Ohio, Indiana, Missouri, Kentucky, Cali-
fornia, 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
majority of the court has come to the conclusion (hat the destruc-
tion 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
snch was the intention of the testator. The clause of revocation

is not necessarily testamentary in its character. It mighl ae well
be executed ae a separate instrument. The fact that it is insert. '.1
in a will does n<>t necessarily .-how that the testator intended that

it should he dependent on the continuance in force ot all the Other

provisions by which his property is disposed of. It is more reason-
able and natural to aSSUme thai such revocatory clause >hows em

piratically and conclusively that he has abandoned hieformer

intentions, and Substituted therefor a new disposition of his prop-

374 REVOCATION AND REPUBLICATION.

ertv, which for the present, and unless again modified, 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 pur-
pose 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 will ; and that it would be open to prove
such intention by parol evidence. Under the statute of England,
and of Virginia, and perhaps of other States, such revival cannot
be proved in this manner. Major v. Williams, and Dickinson v.
Swatman, above cited. Rudisill v. Rodes, 29 Grat. 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 cus-
tody 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 admis-
sible in evidence for the purpose of showing that she did not
intend, by her cancellation 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, de-

TVHETHEK REVOCATION REVIVES PREVIOUS WILL. 3?.')

perilled upon what was in the mind of the testatrix. It would in
manv 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 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, destruc-
tion, 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 tes-
tator, which is to be gathered from facts and circumstances, his
declarations, showing such intention, whether prior, contempora-
neous, or subsequent, may be proved in evidence.

In the great case of Sugden v. St. Leonards. 1 I*. I). 154, the
question underwent full discussion, in 1876*5 whether written and
oral declarations 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 admitted in the argument, at one stage of the
discussion, that such subsequent declaration- 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 <Jf the will, were admissible. See pages 171. L98,
200, 214, 215, 219, 220, 225, ±l~. 228, 240, 241. The case of

Keen v. Keen. L. \l. '■'< P. & I). !<»."), is to the same effect. See
also Gould v. Lakes, 6 I*. I). 1; Doe v. Allen. 12 A. & A. l.M ;
LJsticke v. Bawden, '2 Add. Ecc. 12:1; Welch v. Phillips, l Moore
I'. <'. 299; Whitely v. King, L0 Jur. (N. S.) L079; Re Johnson's
Will, 40 Conn. 587; Lawyer v. Smith, 8 Mich. 411; Patterson v.
Bickey,32 Ga. L56; 1 Jarm. Wills (5th Am. ed. bj Bigelow),
L30, 133, L34, 142, and uol The question wa& also discussed,
and manv cases were cited, in Collagran v. Burn s, 57 Maine 449,

but the court was equally divided in opinion. Many, though

Dot all, of the cases, which at first Bighl may appear to hold

the contrary, will be found OH examination to hold merely

376 REVOCATION AND REPUBLICATION.

that the direct fact of revocation cannot be proved by such dec-
larations.

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

Reversed.

REPUBLICATION.

Thus far we nave considered the subjects of testamentary capac-
ity and the execution and revocation of wills. There is a further
topic which, while in a sense distinct, is closely allied to that of
execution, namely, that of republication and revival of wills. The
occasion for republishing and reviving wills may arise in various
ways. A will, for instance, may have been duly executed to be-
gin with, and then have been revoked, either expressly or by im-
plication. Here, unless it is in some way revived by some subse-
quent act, it of course counts for nothing. So the original will
may, in the first instance, have been improperly executed. And
in any case where, as facts now stand, a will would not take effect
if left as it is, it is necessary, in order to establish it anew, that it
should be revived and republished. We have already seen, in the
Chapter on Execution, that it is not necessary in some jurisdictions
that testator, in order to duly execute his will, should " publish "
it, in the sense of declaring it to be his will. And so also in such
jurisdictions he may revive it by re-execution, or by executing a
new instrument, duly referring to it, without a re-declaration. The
term " Republication," therefore, is not always accurate ; but it is
commonly used in the sense of revival, by any legal method, and
in that sense is here employed.

In all cases, it is always sufficient to re-execute the will anew,
just as if it had never been executed at all. But there is still
another method of reviving it which is of great importance,
namely, by due reference to it in a codicil or subsequent will
which is in itself duly executed. The execution of the later in-
strument also relates back to and covers the former will and
revives it. 1 Nor is it necessary that the later instrument should

1 Estate of Masters, 1 Civ. Pr. R. (N. Y.) 459; Van Cortlandt v. Kip, 1 Hill
(N. Y.) 590 ; s. c. 7 Hill 346 ; Van Alstynev. Van Alstyne, 28 N. Y. 375 ; 1
Williams on Executors, 211; 1 Jarman on Wills (Randolph & T.'s Ed.), Oh. VI.,
section iv., and Ch. VIII. ; 11 Moore P. C. 426 ; Brown v. Clark, 77 N. Y. 369;
Murfield's Estate (la.), 38 N. W. Rep. 170; McCurdy v.Weall, 7 Atl. Rep. 566.

[REPUBLICATION ONLY BY NEW EXECUTION. 377

set forth in express terms the testator's intention to republish the
former. Any reference which makes such an intention obvious,
will suffice. It follows as a corollary from these propositions,
that if a former will is thus referred to in a manner sufficient to
revive it, if in need of reviving, it is sufficient, in proving both
instruments, to prove the due execution of the later one only, even
though in fact the former was in fact duly executed. For, if the
due execution of the later suffices for both, it is immaterial whether
the earlier was duly executed or not. 1

Illustrations.

(a). A codicil referred merely to "my will." Held, citing
many authorities, that this republished the will itself, and that on
proceedings for probate of both instruments, it was necessary to
prove the codicil only. 2

(b). A codicil merely referred to the will by date. This sufficed
to republish the will. 3

(c). A second codicil referred to the first codicil merely by be-
ing itself designated as " another codicil." It thereby republished
the first codicil. 4

REPUBLICATION ONLY BY NEW EXECUTION.
Barker vs. Bell et al.

Alabama Supreme Court, 1871.
(46 Ala. 216.)
Appeal from Probate Court.

Peters, J.— This is a proceeding on the contest of a will before
its probate, under our statute. There was a jury trial in the court
below, and a verdict in favor of the will offered for probate, and

a judgment of the court allowing the probate of the instrument
offered, according to the vcnlict.

The evidence tends to show that there were two wills made by
the decedent, Wm. M. Bell. The one was made in January,

1 Bee Index, " Incorporation."

' Matter <<f Nesbit, •"> Dem. 287.

■Payne v. Payne, 18 Oal. 391. See Storm's Will, 8 Real (N. V.) 827.

4 Ingoldhy v. Iugoldby, 4 No. Gafl. 408.

378 REVOCATION AND REPUBLICATION.

1868, and the other in May or June, 1868. This latter will was
not produced on the trial, and there was no written evidence to
show that it had been revoked or canceled. The testamentary
paper of January, 1808, was the will offered for probate, and the
one that was established by the decree of the court. It disposes
of the real and personal estate of the testator. The issue covered
all the ground of contest that could be made on such an instru-
ment. The evidence tends to establish the allegation that it had
been regularly made and attested, and declared to be the will of
the party making it, to wit, said Wm. M. Bell, as required by the
Code. But after the death of Bell, the alleged testator, it was
found in possession of his widow, with his name torn off, and the
names of the attesting witnesses, of whom there were three, re-
mained legible. There was proof going strongly to show that
these obliterations had been made by the testator himself, while
the will was in his possession ; that he had handed it to his wife,
or she had rotten it from his pocket, and that it was so obliterated
when she obtained it, and that he had then declared that the ob-
literation was his work, and he intended it as a cancellation of the
will. There was no testimony that this will had been canceled or
torn by any other person. There was proof, also, that the testator
had spoken of this paper, after the making and publication of the
subsequent will of May or June, 1868, as "his will," and declar-
ing that he had destroyed the will of May or June, 186S. 1 This
was in April, 1870, just before decedent's death.

On this evidence the court gave several charges to the jury,
which were excepted to by the contestants, and refused to give
several others which were asked by the contestants, and the refus-
als were each made the basis of an exception. It is not necessary
to notice the exceptions arising on the charges given, as like ques-
tions arise on the charges refused. One of these charges is recited
in the record in the following terms :

" The contestants asked the court to charge the jury in writing,
that the testator could not republish the will propounded by parol
declarations alone."

This charge should have been given. To refuse it was error.
The Code is intended to contain all the statute law of this State

1 See Index, " Declarations.

REPUBLICATION ONLY BY NEW EXECUTION. 379

of " a public nature, designed to operate upon all the people of the
State up to the date of its adoption, unless otherwise directed in
the Code,"— Code, sec. 10. This law is not merely cumulative of
the common law, and made to perfect the deficiencies of that sys-
tem, lmt it is designed to create a new and independent system,
applicable to our own institutions and government, Rev. Code
sec 10. In such case, where a statute disposes of the whole sub-
ject of legislation, it is the only law. Otherwise, we shall have
two systems, where one was intended to operate, and the statute
becomes the law only so far as a party may choose to follow it.
Besides, the mere fact that a statute is made, shows that so far as
it goes, the legislature intended to displace the old rule by a new
one. On some questions the common law conflicts more or less
with constitutional law, and is necessarily displaced and repealed
by it. And on others it has, by lapse of ages, and mistakes
inevitably attendant on all human affairs, become uncertain
and difficult to reconcile with the principles of justice. Hence,
the legislature intervenes to remove such difficulties, uncertainties,
and mistakes, by a new law. This new law, to the extent that it
goes, necessarily takes the place of all others. For it would be
illogical to contend that the old rule must stand, as well as the new-
one, because this would not remedy the evil sought to be removed
and avoided.

Judged upon these principles, the statute law found in the Code.
and BUch others as may have; been since enacted on the subject ot
wills, in this Stat.-, include the whole law upon the matingof wills,
and their revocation, and the making of other wills in the place of
those revoked. Rev. Code, sec. 420, Chap. EL, adJmSm. A will
made in conformity with the requirements of this law, without
fraud or undue influence, is valid as a testamentary disposition of
the maker's estate. Bu1 if it is not so made, it can have no force
;i - ;l will. I'nder this statute, the revocation by cancellation or

obliteration, by the testator himself , destroys the instrument. From
the date of the revocation, the will revoked ceases to be a testa-
mentary disposition of the maker's estate. Such revoked will is
nothing. It can have no effeel a- a will. Ami if the party who
made it desiree to make a testamentary disposition oi Ins estate, he
mu-t make a new will, iii the ,,,;, nner required by the statute.
I'.ut in doing this, he may ase the same form of words, without varia-

3S0 REVOCATION AND REPUBLICATION.

tions or with variations, as often as lie pleases, and the same written or
printed document that was used at first, but the process of making
the will must be the same each time ; that is, it must be done as
prescribed by the statute. By our law, there can be no republica-
tion of a will that has been revoked by tearing off the names of
the maker and the attesting witnesses, unless the will is re-signed
and re-attested, as required by the statute. The signing of the will
and the attestation of tbis signature are essential formalities that
cannot be dispensed with. Kev. Code, sees. 1910, 1930-31 ;
Powell's Distr. v. Powell's Legatees, 30 Ala. 697, 705 ; Eiley v.
Riley, 36 Ala. 496 ; 1 Kedf. Wills, p. 191, bottom, sees. 206-7.
The charge asked, as above set out, was confined to the instrument
offered for probate in this case. The proof in this instance is not
sufficient to establish the republication of such a will. Where a
testator has made two wills, and wishes to destroy the one last made,
and revive the one first made, both of which have been duly exe-
cuted, he may do so by the cancellation or destruction of the last
made will, and the due republication of the previous will. 1 But
this due republication of the previous will cannot be made of a
will mutilated and canceled by the testator himself, without a re-
making of the same, as required by the statute. Otherwise, a
paper without the signature of the testator, and without attesting
witnesses, might become a will. This, except in certain cases
(and this is not one of the excepted cases), the law forbids. Rev.
Code, sees. 1932-4, 1936; Jackson v. Holloway, 7 Johns. 394;
Jackson v. Rodgers et al., 9 Johns. 312 ; 1 Redf. Wills, p. 354,
bottom, sees. 373-4 ; James v. Marvin, 3 Conn. 576 ; 10 Bac. Abr. ;
Bouv. p. 505. A republished will is a new will, and it must have
all its parts complete. 1 Williams on Ex'rs, 113, 121, margin.
This instrument cannot be made a new will without the testator's
signature, and the signatures of the proper number of attesting
witnesses. These requisites it does not possess. Rev. Code, sec.
1930 ; 1 Redf. Wills, 347, bottom, et seq.

In all matters in relation to the evidence and mode of proceed-
ing in the court of probate on the contest of a will, where there is
no special exception, the court must proceed and be governed by
the same rules and regulations as courts of common law. Rev.

See Index, "Republication.'

REPUBLICATION ONLY BY NEW EXECUTION. 381

Code, sec. ]962. In such a contest, the legatees are competent
witnesses ' for the proponent, or for the contestant. Rev. Code,
sec. 2704 ; Painph. Acts 1866-67, p. 335, No. 403. The court
did not err in permitting one of the legatees to testify in favor of
the validity of the will.

The conduct of the trial is under the sound discretion of the court.
The court may therefore allow a witness to be called back for re-ex-
amination, but cannot compel either party to call back his witness,
unless he choose to do so. In case a witness is so called back after
being dismissed by the party who summoned him, be becomes the
witness of the party calling him back against the objection of the
other party ; and such witness cannot be impeached by the party
so calling him back. In this view of the law the contestants were
not injured, as the testimony strengthened their case.

The other exceptions are such as are not likely again to arise on
a new trial. I therefore omit their consideration.

The judgment of the court below is reversed, and as the parties
are entitled to a trial by jury (Rev. Code, sec. 1956), the cause is
remanded and a new trial is ordered.

1 As to the competency of witnesses, see the laws of the respective States.
See also Index, " Witnesses."

CHAPTER V.

FORM, NATURE, AND SCOPE OF WILLS.

I. — The form of the instrument.
II. — Conditional wills.

III. — Contracts concerning testamentary dispositions.
IV. — Joint, simultaneous, double, alternative, and dupli-
cate WILLS.
V. — Incorporation by reference.
VI. — Illegal provisions and incapable beneficiaries.
VII. — Nuncupative wills.
VIII. — Conflict of laws.
IX. — Miscellaneous.

Thus far we have considered the history of wills, the testa-
mentary capacity of testators, and the formalities now required
to effect due execution, revocation, and republication. In the
present chapter we are to take up the form in which the testa-
mentary instrument itself may be cast, and its scope, nature, and
characteristics.

I. THE FORM OF THE INSTRUMENT.

(a). The materials to be used. — The statutes of wills require
wills (except those known as nuncupative wills, which will
be considered hereafter) to be in writing. But they do not pre-
scribe the particular material with which the writing shall be
effected, nor the material of which the instrument itself shall con-
sist. As to the latter, paper or parchment is of course the usual
and appropriate substance employed, but the modern test is the
adaptability of the material to receive and retain a legible and per-
manent impression, and to furnish a medium suitable for the uses
called for in connection with a testamentary instrument. Thus, it
has been held in Pennsylvania that a will written on a slate can-
not be probated, on the ground that it is too susceptible to erasures
and substitution of provisions to render it worthy of serious con-
sideration. 1 It is always true, of course, that the use of unusual
. — . — — — — .*

1 Reed v. Woodward, 11 Phila. 541.
(3 82)

THE FORM OF THE INSTRUMENT. 383

or inappropriate materials may raise a prima facie presumption
that the instrument so executed could not have been seriously
intended by testator as a solemn will. But in such cases, where
peculiar circumstances are proved showing that testator employed
the best materials he could obtain, and could not risk delay, it is
believed that all reasonable leeway would generally be allowed, in
order to sustain a will in other respects duly executed. 1 As to the
materials with which the will may be written, the usual and proper
method is of course to employ pen and ink. But a printed or en-
graved form answers, though the statute requires " writing." For
printing is writing. 3 And so a will may be valid though wholly
written and signed in lead pencil/

(b). The language employed— & valid will may be written in
any language understood by testator. 6 Thus, in the case of a will
written in French, by an American residing in France, a certified
copy of which, with a translation, was admitted to probate in New
York, the court say :

"Objection was made that the English copy of the will con-
tained in the record was no part of the probate. "We think it was.
It appears in 2 Redfield on Wills (2d ed.), p. 45, that ' It is requi-
site, where the will is in a foreign language, that the probate should
contain a translation of the same in English,' and such plainly
must be the law. Suppose a will be executed in Latin, Greek, or
Arabic, with the formalities required by our statute, what is to be
done with it when it is presented for probate ( Its execution must
'p.- proved in English. The precise language in which the will is
written is of little significance; whether it be in our language or
another is of little importance. The will of the testator is to he

TiV- will may lie written en separate sheets, fastened together only with
a pin. In Goods of Braddock, 1 I'. D. 138. When they are found fastened
together, the presumption is thai it was done by testator. Rees v. Rees, L. R. '■'<
V. & I).

I,, Goods ef ^dams, I.. R. 2 I". & D. 867.

Temple v. Mead, t Vt. .".:::.; Henshaw v. Fester. 10 Pick, 812

1 Myers v. Vanderhelt, 84 Penn. St. ■'.m ; G la of Dyer, 1 ffaeg 219; thou ii

tii.' use ef m pencil i- -t circumstance to be considered if testator's infant to
makes formal "-ill ; In question. Rymi s> Clarkson, I Phillim 88 I B

If the writing i- blind or obscure, the court may send it to :i mautt r, or take
other steps to have it deciphered Mastei v. Masters, 1 P. Wins 181(4

584 FORM, NATURE, AND SCOPE OF WILLS.

ascertained from the meaning which he has expressed, in whatever
language ; and that meaning, put into proper English, must, in a
court required to use the English language, be taken as the testa-
tor's will and placed upon record. There can be no necessity for
recording it in the foreign language ; and yet the practice of re-
cording in both languages, where that can be done, is quite proper.
It was the duty of the surrogate, in this case, to ascertain what the
will of the testator, written in a foreign tongue, was ; and the trans-
lation which he has recorded must be treated as part of his decree,
unassailable collaterally, like the rest of it." '

The important question in such cases often is whether the tes-
tator understood the provisions of the will. As where the will is
in English, and the testator did not understand that language, the
mere fact that he executed it does not raise the usual prima facie
presumption that he knew its contents. 2

(c). Passing now from the questions arising out of the use of a for-
eign tongue, to the form of instrument that may be employed, the
first principle is that any phraseology and any form will answer,
if only the necessary intent is shown, and testator expresses his
purposes so that they are capable of being understood, and executes
the instrument according to the requirements of the controlling

statute of wills.

The test of whether a given instrument unusual or extraor-
dinary in form is in fact a will, is the intention of the testa-
tor. 3 It is sometimes said that in order to make a will the
testator must know that he is doing so. 4 This is of course true in
those jurisdictions where the testator is required to "declare" to
the witnesses that the instrument is his will. But in other juris-
dictions the true test is not testator's realization that the instru-
ment is a will, but 'his intention to create a revocable disposition
of his property to accrue and take effect only upon Ms death ; b
if he intends this, then the law calls the instrument a will, whether

1 Caulfield v. Sullivan, 85 N. Y. 153 (161).

5 See Miltenberger v. Miltenberger, 78 Mo. 27. For the usual presumption
of knowledge, arising from the fact of execution, Robinson v. Brewster, 30
N. E. Rep. (111.) 683.

3 Sharp v. Hall, 86 Ala. 110.

* Lyles v. Lyles, 2 Nott & McC. (S. C.) 53L

5 Habergham v. Vincent, 2 Ves. Jr. 231.

THE FORM OF THE INSTRUMENT. 385

he knew it by that name or not ; his lack of acquaintance with the
proper legal name is of no consequence. The testator must have
the animus testandi. which is defined in Sheph. Touchstone, 204
(referred to in Sewell v. Slingluff, 57 Md. 537, 547), as the inten-
tion to dispose of property in the event of death.

It will be noticed that in jurisdictions where the statutory re-
quirements concerning execution are greatly detailed, there is
much less opportunity for discussion concerning the character of
an instrument offered for probate. But in none of them is the
mere form of the instrument in which testator's expressions of in-
tention are cast controlling.

Illustrations.

(a). Will in form of a letter. 1

(b). Will in form of an assignment. 3

(c). Will contained in the same instrument with a power of
attorney. 3

(d). Will constituting one portion of a contract. 4

(e). Will consisting solely of the expression of a wish. 6 As
when the entire body of. the will, preceding the signatures,
was:

" I wish Mym Sister, Louisa Cock, of 104, York Road, Lam-
beth, to have my Sobering [Charing] Cross bank-book, for her
own use." "

(f). Will merely naming executor and making no disposition
of property.'

The foregoing wills were all sustained, as representing a testa-
mentary Intent.

1 Estate of Knox, 181 Penn. St. 220, .-rivm ante, p. 217; Barney v. Bays,
29 Pac. i:< p. 282 ; Cowley v. Enapp, 42 N. .1. L. 297.

Robinson v. Brewster I III. i, 80 N. E. Rep. 888; Doe dem. Cross v. Cross,
H Q. I'.. 711.

Doe dem. Cross v. Cross, 8 Q. B. 714; Rose v. Quick, BO Penn. Bt. 226.

1 Reed v. Bazleton (Kan.), 15 Pac. Rep. 177.

1 Matter of Wood. 80 Cal. 75.

•Cock \. Cooke, L. R. i P. & l>. 241.

■ Barberv. Barber, 17 Hun (N. 5f.)72; I Wms on Exrs, 227.

» For farther illustrations of valid Informal wills, duly executed under the

386 FORM, NATURE, AND SCOPE OF WILLS.

(g). Rev. Edward O'Comiell wrote a letter, dated Dec. 8th,
1874, beginning " My dear Christina, — this is my last will and
letter to you," and stating how his property should be divided.
Among other phrases indicating testamentary intent, he said, " I
leave my plate and the family plate to Mrs. Towers," etc. The
letter closed, "your affectionate brother, Edward O'Connell."
Held, to have been intended for a will, and to be void for lack of
due execution. 1

(A). II. F. Wood, the testator, duly executed in conformity with
the California statute, the following instrument: "I wish five
thousand dollars to go to John C. Cole in the event of my dying
intestate, and the balance of my property to be held by Robert C.
Beatie to be disposed of by him as his judgment may dictate.

H. F. Wood.

San Francisco, Cal., February 5th, 1863.

Witness : S. H. Seymour, Win. H. Ladd.
Warrensville, Lycoming Co., Penn."

This was held to be a good will. 2

(i). A mere memorandum direction, " at my death my estate or
my executor to pay to July Ann Cover the sum of three thousand
dollars," signed, sealed, and witnessed, is not an agreement. It is
a will, and void if not duly executed as such. 3

(J). An instrument beginning, " To all people to whom these
presents shall come," and in form a deed of gift in consideration
of love and affection, and duly executed under the statute of wills,
was held, in view both of its terms and of extrinsic evidence show-
ing intention, to be a will. 4

(k). Where, after testatrix had duly executed a will she executed

local law, compare Mosser v. Mosser, 32 Ala. 551; Rue High's Appeal, 2
Dougl. (Mich.) 515; Habergham v. Vincent, 2 Ves. Jr. 204 (231); Passmore v.
Passmore, 1 Phillim. 218; Masterman v. Maberly, 2 Hagg. 235 (248); Goods of
Colyer, 14 P. D. 48; where the form of the will is peculiar, so that its testa-
mentary character appears from its own face doubtful, extrinsic evidence is
admissible to show its true character : Jones v. Nicholay, 2 Roberts. 388;
Thorncroft v. Lashmar, 2 Sw. & Tr. 479; Patterson v. English, 71 Penn. St.
454.

1 Towers v. Hogan, 23 L. R. (Ir.) 53. 2 Matter of Wood, 36 Cal. 75.

1 Corver v. Stem (Md.), 10 Atl. Rep. 231. * In Goods of Slinn, 15 P. D. 156.

WILL IN ENGLISH. — FOREIGN TESTATOR. 387

a paper headed " This is not meant as a legal Will, bat as Guide,"
the latter cannot be admitted to probate as a will. 1

(/). An uncle and nephew formed a partnership as physicians.
The articles of copartnership contained the following provision,
namely, that in case of the uncle's death, all his property, personal
and otherwise, which he held in partnership at the time of his
death, should go to the nephew. Held that the provision was tes-
tamentary, and, not being duly executed as a will, was void. 2

Selected cases further illustrating unusual forms of wills may be
found post.

WILL IN ENGLISH.— FOREIGN TESTATOR.
In re Walter's Will.

Wisconsin Supreme Court, 1885.
(The Reporter, Vol. XXI. 95.)

Appeal from Sheboygan County.

Application for probate of a paper purporting to be the last will
of Minna Walter, deceased, written in English. She was a Ger-
man and did not understand the English language. The paper
was drawn in English at her request, and was interpreted to her.
The application was granted, and this appeal was taken from the
decree of probate.

Lyon, J. — The question of law presented by this appeal is:
Should an instrument executed with all the formalities which the
law makes essential to a valid execution of a will, which purports
to be the last will and testament of the deceased person so exe-
cuting it, and which expressed his will and intentions, be denied
probate for the sole reason that such person did not understand the
language in which the instrument was written ? This is an inter-
esting, and, perhaps, an important question. It has not heretofore
been raised in this court to our knowledge, and the industry oi
counsel has failed to find a direct adjudication elsewhere. How-
ever, in Redfield on Wills, to the statement in the text that " it

Seems to be well settled that the testator may put hie will in any
language he may choose," there is a note in which the author says:
" We doubt it the common law will allow of a written will being

expressed in a language not understood by the testator. That

1 Ferguflon-Davie v Ferguson Davie, i"> P. l>. 109.
' McKinnou v. M< Kinnon, Hi Fed Rep. 718.

388 FOKM, NATURE, AND SCOPE OF WILLS.

would seem indispensable to any understanding execution of the
instrument." Vol 1, page 166 (4th ed.), note 8. No case or au-
thority is cited to support the opinion intimated in the last extract.
The reason given for this opinion is, in effect, that a person cannot
have an understanding of the contents of an instrument unless it
be written in a language he knows. True, he may not get such
understanding by reading the instrument himself, but there are
other methods by which he can be accurately informed thereof,
although he may not be able to read understaudingly a word of the
instrument. A vast amount of accurate knowledge is alone im-
parted to the mass of mankind by means of translations from lan-
guages understood by but few. Such is the foundation of our be-
lief in very many most important accepted truths in theology,
science, and history. Important writings are frequently signed
without perusal, the signer relying upon the statement of another,
who knows what the instrument contains, as to its contents. If
the information states such contents truly, the signer knows just
what he has signed. Were an issue made up as to whether the
signer of a written instrument knew its contents when he signed
it, and the proof should show that he never read it, but was accu-
rately informed of its contents orally, before he signed it, by a
person who had read it, the issue would necessarily be found in
the affirmative ; that is, that the signer knew the contents of the
instrument. There can be no doubt, we think, that a person who
signs an obligation or promise, with knowledge of its contents,
imparted to him by parol, is liable thereon, although it may be
written in a language he does not understand. The question is
not by what means or instrumentalities the signer was informed of
the contents of the instrument, but did he know its contents when
he signed it ? No good reason is perceived why this is not also
true of wills. Of course it is essential to a valid will that the testator
should have had an intelligent understanding and comprehension
of its contents when he executed it. The formalities required by
law in the execution of wills are prescribed for the purpose (among
others) of preserving satisfactory evidence that the testator in each
case had such understanding of the contents of his will. But the
law does not require that he shall read his will before execution, or
be able to read it, as a condition as to its validity. If such were
the law, the blind, or those persons who from illiteracy or other

WILL IN ENGLISH. — FOREIGN TESTATOR. 389

cause are unable to read, could never make a valid written testa-
ment. The same would be true of many persons who may desire
to execute a written will when in extremis, and who are otherwise
competent to do so. It has lung been held that persons thus cir-
cumstanced may execute valid written wills. And if the will of
any such person is drawn in accordance with his instructions, al-
though not read over to him, it seems now to be settled that, if
otherwise sufficient, it is a valid will. 1 Redfield on Wills, p. 57,
c. 3, sec. 6, § 5. We perceive no substantial difference in principle
between the cases above referred to and one in which a will is drawn
up in a language which the testator does not understand. In cases
belonging t<> either class the court should require satisfactory proof
that the testator was correctly informed of the contents of the in-
strument he was about to execute. [Goerke'sWill (Wis.), 50 N.
W. Rep. 345.] Such proof was made in the present case, and in ad-
dition thereto it was proved that the instrument was drawn in strict
compliance with the instructions of the testatrix in that behalf.
In view of the well-known fact that quite a large percentage of
the people of this State do not understand the English language,
and of the probability that many wills of such people, written in
English, have been admitted to probate, we should adopt the rule
here 'suggested, even though the argument against it were much
stronger than it is. Otherwise great mischief might be done by
defeating the real will of the testators, carefully expressed, and
duly verified in the manner prescribed by statute, and by unsettling
estates supposed to be settled, and divesting rights of property
believed to he fullv vested. If the same circumstances had ex-
isted generally in this country when Judge Redfield wrote the in-
timation above mentioned, we greatly doubt whether he would
have thought that the rule there suggested (even conceding it to be

a rule of the common law) was at all applicable to the condition
and circumstances of our people. < >ur conclusion is that, because

the instrument in question was freely executed by the testatrix in
due form of law, with full and accurate knowledge of itfl contents

and in accordance with her instructions (she being of sound mind),
it wa^ properly admitted to probate, and established as her last, will
and testament, aotwithstanding it was written in the English lan-
guage, which die could not read or understand.
.1 ii<l y tin ni affirmed.

390 FOKM, NATUKE, AND SCOPE OF WILLS.

INFORMAL WILL.
In the Goods of W. Coles.

English Court op Probate, 1871.
(L. R. 2 P. & D. 362.)

William Coles, of Victoria Terrace, Caledonian Koad, Middlesex,
died on the 26th of May, 1871, leaving a paper executed in the
presence of two witnesses, beginning " I have given all that I have
to Bertha Chamberlain and her two sons," etc. The paper was
dictated by testator, who distinctly directed the use of the words
" I have given," saying that nothing would be plainer. After the
paper had been executed, the testator gave it to one of the wit-
nesses, Mr. Gray, telling him that as soon as the breath was out of
the deceased's body he was to take it to Mr. Williams, the trustee
named in it.

Lord Penzance. — The question is, is this paper testamentary ? A
case was decided by me some time ago (Cock v. Cooke, 1 P. & D.
241) of a somewhat similar character. The principle is plain that
where a paper is intended by the testator to take effect after his
death, it will be admitted to probate, whatever may be its form.
Although this paper contains the word "given" instead of "give,"
the court cannot hesitate to say that the testator meant that the
property should pass on his death, he could not mean to make over
all his property to the persons mentioned at once. It is, I think, ob-
vious that there is a greater probability that the testator intended
the parties to take on his death, than that he should denude him-
self of everything in his lifetime. This last supposition is most
improbable. I think, therefore, the paper is testamentary.

WHETHER DEED OR WILL.— TEST.
Jordan v. Jordan's Administrator.

Alabama Supreme Court, 1880.
(65 Ala. 301.)

Action for conversion, brought by the administrator of the estate
of Mrs. Elizabeth G. Jordan and others. The defendants claimed
title under an instrument executed by Mrs. Jordan, and offered in
evidence as a deed of gift. The administrator objected to its ad-
mission in evidence on the ground that it was in fact a will. It

WHETHEK DEED OE WILL. — TEST. 391

■was admitted that it Lad never been admitted to probate as such.
The defendants also offered in evidence an instrument purporting
to be a deed of land, the admission of which was also objected to.
The court sustained both objections, and the defendants excepted.

The facts are stated in the opinion.

£ri<-k: II. C. J. — Any instrument in writing, whatever may be its
form, executed in conformity to the provisions of the statute of wills,
manifesting a posthumous destination of property, real and personal,
can take effect only as a will ; and rights under it cannot be asserted
or recognized, until it has been admitted to probate in the proper
form. Dunn v. Bank of Mobile, 2 Ala. 152 ; Shepherd v. Nabors,
6 Ala. 631; Gilliam v. Martin, 42 Ala. 365; Daniel v. Hill, 52
Ala. 430; Elmore v. Mustin, 28 Ala. 309; Kinnebrew v. Kinne-
brew, 35 Ala. »'>25. It is not a matter of moment, what is the
designation of the instrument upon its face, nor how it may have
been received and acted upon by the parties having beneticial in-
terests under it. The true inquiry is, as to the effect and operation
the party making it intended it to have. A will is defined to be
an instrument by which a person makes a disposition of property
to take effect after his death ; and as its operation is postponed
during life, it is, in its own nature, ambulatory and revocable. It
is this ambulatory and revocable quality which distinguishes it
from deeds and other similar instruments of transfer or convey
ance, taking effect, if at all, at the time of execution. Not that
instruments of transfer or conveyance must necessarily pass present,
immediate right- of possession or enjoyment ; but, whatever is the
right or interest created, it must pass at the time of execution.
When the interest is created and passes by such instruments, the
postponement of possession or enjoyment, or of vesting, is pro-
duced by the express terms, and not by the natun of the instru-
ment. The illustration usually given in the hooks is of a deed hy
which the grantor limits lands to the use of himself for life, with
remainder to the u-e of A in ice. The usufructuary enjoyment
i- precisely the same, as if he should by his will devise such land-
to A in fee. The difference between the two, however, is apparent.

Immediately upon the execution of the deed, the remainder in \>r

vests, though possession and enjoymenl is postponed. By no act
<■!' the grantor can it be revoked, annulled, defeated, or impaired.
The execution of the will passes no estate, vests no title, creates no

392 FORM, NATURE, AND SCOPE OF WILLS.

interest or right ; all are dependent upon the death of the testator,
in whom resides the absolute, unqualified power of revocation,
though it is not reserved or expressed.

It is often a matter of extreme difficulty to ascertain, when an
instrument is unskillfully drawn — when it employs alike apt words
of conveyance and of devise, or bequest, commingles provisions often
found in deeds, with provisions generally found in wills ; and there
is an express postponement of possession and enjoyment until after
the death of the party executing it— whether it is intended as tes-
tamentary, or as a conveyance operating presently to create estates,
rights and interests, which are irrevocable. It is the intention of
the .party executing, to be collected from the terms of the instru-
ment, when these are read in the light of surrounding circum-
stances, which must prevail.

The instrument proposed to be introduced as the evidence of the
appellants' title, and of the divestiture of the title of the intestate,
Mrs. Jordan, was executed and delivered by her ; and it is properly
executed either as a will or as a deed. It disposes of money then in
the possession of the intestate, and of money to be raised by a sale
of personal property not otherwise specifically disposed of; and
contains directions as to the burial and decoration of the grave of
the maker. It commences with the words : " For and in consider-
ation of the love and affection I have for the following named per-
sons, I do give, grant, and convey to each one of them "; and it
concludes, " and I also further request and enjoin upon my son,
David C. Jordan, that he take charge of, and manage in the inter-
est, and to the benefit of my daughter, Aretlmsa A. Jordan, all
the real and personal property herein and elsewhere deeded unto
her, the said Arethusa A. Jordan. I also further request that my
sons, Alexander Jordan and David C. Jordan, shall take charge of
all the real and personal property herein and elsewhere deeded,
and that they proceed to place the owners thereof in possession of
the same, with the least delay and expense possible, after my
death "; followed by the testimonial clause usual in deeds. There
cannot be any particular importance attached to the word " deeded"
though, in popular acceptation, it signifies a transfer by deed, found
in the concluding clause of the instrument which we have quoted.
In a preceding part of the instrument is found this clause, " The
proceeds of all the personal property and effects not otherwise herein

WHETHER DEED OR WILL.— TEST. 393

lequeathed" which signifies a disposition by will. These words
were doubtless used loosely and carelessly, and do not afford any
valuable aid in arriving at the intention of the donor. That is
more satisfactorily ascertained from a careful consideration of the
whole structure, and all the terms of the instrument, to which we
are confined, there not being any evidence of the circumstances
surrounding the donor when it was executed, which would aid in
ascertaining the intention. From the whole structure, and all the
terms of the instrument, we are satisfied it is strictly testamentary
— that it was intended by the donor as a disposition of all her per-
sonal property, to take effect after her death.

The sons, David C. and Alexander Jordan, are not nominated
as executors; but the duties they are required to perform, are
strictly executorial. It is only after the death of the donor, that
they have capacity or authority to take any step ; and then it is
that they are to take charge of all the property, the money on
hand, and the other property of which disposition is made, and to
place the owners in possession. An irrevocable disposition of
money in the possession of the donor, and of which, during life,
possession is to remain with him, is not usual, nor can it be sup-
posed it was in this instance contemplated. It would scarcely
have been a violation of duty and of good faith, which a court of
equity would have intervened to prevent, if the donor had made a
hazardous loan, or an injudicious investment of the money, after
the execution of the instrument; nor can we suppose that, under
any circumstances, the aid of the court could have been invoked,
to compel her to give security for its payment OU her death ; or
that a receiver would have been appointed, to hold it during her
life, that on her death it should reach the destination given it by
the instrument. Nor can it be supposed that it was the intention,

if from any cause the identical money on hand at the execution of
the instrument Bhould have been lost or converted, and at her death

there was \sic\ other moneys sutlieient to meet the dispositions

of the instrument, that the right of the donees should not attach
to such moneys that their rights were confined and limited to

the identical money in the hands of the donor when the iietru

ment was executed. Vet, if it is a deed, -peaking and taking
effect from il execution, that would be the consequence ; while,
if it is a will, speaking and taking effect from the death of the

394 FORM, NATURE, AND SCOPE OF WILLS.

donor, their rights would attach to the moneys then on hand.
Again, the disposition is of all the personal property of the donor ;
and if it be a deed, it strips her of all right and interest therein,
except possession during her life. It is evident, portions of this
property must be consumed in the use, and much of it was of that
kind which may be designated perishable. If the instrument was
irrevocable — if it was a deed, and she was limited to the use for
life — s he would have been subject to disturbance by the donees in
remainder, if wasteful in the use, or negligent in the care of the
property. Again, the gift to the daughter Arethusa, of other
things, is of " a horse to be selected of her own choice out of my
stock of horses ; also, twelve months' support out of any provisions
or proceeds of the crops grown upon my place." This, taken in
connection with the gifts of feather-beds to her children and
grandchildren, and with the directions for the burial and decora-
tion of the grave of the donor, indicate that her purposes were
testamentary. And when the instrument is examined in all its
parts — when the consequences of construing it as a deed, and the
character of the property upon which it operates, are considered —
we cannot avoid the conclusion, that it is strictly testamentary ; if
these consequences had been explained to the donor, at the time of
its execution, and of her the inquiry had been made, whether she
intended conveying an interest that would vest before her death,
and would be irrevocable, that she would have answered it nega-
tively ; that her purpose was a disposition taking effect on her
death, leaving her during life the unqualified dominion of owner-
ship, with all its incidents.

The instrument executed on the same day, purporting to be a
conveyance of lauds, is, doubtless, the instrument referred to as
passing property " elsewhere deeded" That it may and ought to
be looked to, in determining whether the instrument under which
title to the personal property is claimed is a deed or a will, we do
not doubt. All contemporaneous instruments, referring the one
to the other, should be considered in construing either ; and when
two instruments have been contemporaneously executed, the one
in form a will, and the other a deed, the nearness of the one act to
the other has induced the courts to regard them as one. 1 Jarman
on Wills, 15. It will not follow, however, because the instrument
relating to the lands is a deed, that the instrument relating to the

WILL IN FORM OF AN ASSIGNMENT. 395

personalty would, of necessity, be a like conveyance. An argu-
ment could be drawn, of more or less importance, from the fact,
dependent upon the uncertainty in which its doubtful and am-
biguous terms mio-ht leave the mind. If the two instruments
were embodied in one, yet, it could be testamentary in one part,
and a present conveyance in another. Kinnebrew v. Kinnebrew,
35 Ala. 628. Without determining whether the instrument re-
lating to the lands should be regarded as testamentary, or as a
deed, it is too variant and distinct in its terms to control the dispo-
sitions of the personal property.

The rulings of the Circuit Court were in conformity to these
views, and its judgment must be affirmed.

[Also for valuable discussion and application of the same prin-
ciples, Williams v. Tolbert, GG Ga. 127; Nichols v. Chandler, 55
Ga. 3G9; Robertson v. Smith, L. R. 2 P. & D. 43; Sperber v.
Balster, 66 Ga. 317; Reed v. Hazleton (Kan.), 15 Pac. Rep.
177; Lautenshlager v. Lautenshlager, 80 Mich. 285; Cover v.
Stem (Md.), L0 Atl. Rep. 231; Goods of Slinn, 15 P. D. 156;
McKinnoD v. McKinnon, 46 Fed. Rep. 713; Turner v. Scott, 51
Penn. St. 126. Georgia has a statute on this point, but it merely
embodies the general rule.]

WILL IN FORM OF AN ASSIGNMENT.
Robinson v. Brewster.

iLLixors Supreme Court, 1892.
(30 N. E. Rep. 683.)
Eeeoe to Circuit Court, Macon County.
Hill t«» Bel aside the will of Joseph Rnbinsull. A decree was

entered in accordance with a verdict sustaining the will. Com-
plainants bring error.

Joseph Robinson signed, in the presence of two attesting wit-
nesses, an instrument in the following form:

" Know all men by these presents, tint I. Joseph Robinson, for
the consideration of one dollar, to me in haud paid, ;i- well as my
affection, do hereby assign and set over t<> my daughter Eliza .lane
Brewster all of mj property, both personal and real, t" have tin-

396 FORM, NATURE, AND SCOPE OF WILLS.

same after my death. "Witness my hand and seal this 7th day of
May, 1877.

his

Joseph X Robinson. [Seal.]

mark

Attest : J. S. Post. E. McClellan."

Magruder, C. J. [After quoting the paper propounded, names
of parties, etc., and giving testimony of witnesses, and finding, 1,
that the instrument was duly executed, and, 2, that there was no
error in the admission of certain evidence objected to on the trial.]
" 3. As to the form of the instrument. ' A last will and testament
may be defined as the disposition of one's property to take effect
after death.' 1 Redf. Wills (4th ed.), p. 5, c. 2, sec. 2, par. 1.
The instrument in controversy is a disposition of property to take
effect after death. It is testamentary in character, and wholly ex-
ecutory. The daughter was not to have or become the owner of
the estate until her father's death. The vesting is deferred,
both in interest and possession, until the death of the maker. The
statement to McClellan that he was making his will, and request
to McClellan to come and witness the will, made, as such state-
ment and request were, only a few moments before signing the
paper, so as to be really a part of the res gestae, indicate that it
was Robinson's intention to make this instrument his will." (Cit-
ing numerous authorities. The court here find certain objections
to the charge of the trial judge unfounded.)

The decree of the Circuit Court is affirmed.

POWER OF ATTORNEY AND WILL IN SAME INSTRUMENT.
Doe on the demises of Elizabeth Cross vs. Cross.

Court of Queen's Bench, 1846.

(8 Q. B. 714.)
Ejectment.

On the trial before Piatt, B., at the last Oxfordshire Assizes, it
appeared that the title of the lessor of the plaintiff depended on
the effect of a certain instrument, executed by Peter Cross, then
tenant in fee simple of the property and a soldier on service in
the West Indies. This was in form a power of attorney to his
mother, Elisabeth Cross, widow, to receive and retain the rent,

CONDITIONAL WILLS. 397

etc., " until I may return to England." It then proceeds : " or,
in tbe event of my death, I do hereby, in my name, assign and
deliver to the said E. C. the sole claim to the before mentioned
property, to be held by her during her life, and disposed of by
her as she shall deem proper at the time of her death : at the same
time I wish it to be understood that I claim all right and title to
the said property on mv arrival in Great Britain, when the term
of the said E. C.'s occupancy shall be considered at an end. In
witness," etc. The instrument was attested by witnesses, and its
execution satisfied the statute of wills.

/'■ A /• Ci'oss afterwards died in India, never having returned to
Great Britain, leaving Elizabeth Cross surviving him. The title
of the plaintiff's lessor came through this instrument as a devise
to Elizabeth Cross. The question was, whether it constituted
;i i r 111.

Verdict for plaintiff on the ground that the instrument was a
will subject to leave to move for nonsuit.

Keating now moved according to the leave reserved.

Wittia/m,8, -I. — The power of attorney operates in one event
only, and for a certain time. But it by no means follows that
the instrument may not take effect as a will, in the event of the
party's death.

Wightman, J. — Mr. Keating appears to admit that this instru-
ment would be a will if it contained only the disposing part. I Jut
it docs not follow, from the other provisions being inserted, that
such part is not to operate.

i Lord /A /,//!<(//, C. .] ., and Patteson, J., delivered opinions to
the same effect.)

Rule refused.

[For a discussion of an instrument containing both a contract

and a will, sec Reed v. Eazleton (Kan.), L5 Pac. Rep. 177. |

TI. CONDITIONAL WILLS.

A testator may. if In' washes, make a conditional will, which.

upon hie death, will or will not be his lasl will: ording as the

condition ha- or has not happened. The condition, in such cast .

i- llSUally tin- death of tlic testator while on a certain journey, or

before a certain time, etc. in given ca e . it is often a perplexing

398 FORM, NATURE, AND SCOPE OF WILLS.

question whether testator has in fact intended to make a conditional
will to take effect only in case the specified contingency happens,
or whether, on the other hand, the likelihood that the contingency
would happen acted upon testator's mind merely as an incentive
to make a will with the intention that having once made it, it
should hold good at his death whether the contingency had in fact
happened or not. If there is any doubt, the courts will lean heavily
in favor of holding the will unconditional. 1

An important distinction is here also to be noticed between a
conditional will (where the will does not take effect at all unless
the condition is fulfilled), and a will containing a conditional legacy
or devise. In this latter case the will itself holds good in any
event, and it is only the particular legacy or devise which fails if
the condition is not fulfilled. 2

CONDITIONAL WILL.
In the Goods of John Moss Winn (deceased;.

English Court of Probate, 1861.
(2 Sw. & Tr. 147.)

John Moss Winn duly executed a testamentary paper bearing
date the 18th of December, 1849, commencing in the following
words : " Be it known unto all men that I, John Moss Winn, of
Birkenhead, in the county of Chester, formerly a bookkeeper,
but now out of business, being on the eve of embarking for San
Francisco, South America, or Mexico, do hereby, in the case of my
decease during my absence being fully ascertained and proved, do
and will over the whole of my furniture, etc., or any property of
whatsoever description," for the joint support of his wife and
children during the wife's widowhood, and in case of her second
marriage for the children, and appointed his brother William
Henry Winn and a Mr. M'Culloch, executors.

John Moss Winn sailed for San Francisco in January, 1850, the
will being deposited with his brother. He returned to England in
June, 1852, and William Winchester, who was one of the attest-
ing witnesses of the will, deposed that during John Moss Winn's

1 Cody v. Conly, 27 Gratt. (Va.) 313 ; Goods of Porter, L. R. 2 P. & D. 22.
8 Damon v. Damon, 8 All. 192.

CONDITIONAL WILL. 399

stay in England, he frequently mentioned to the deponent that he
intended the will made by him on the 18th of December, 1849,
prior to his going to San Francisco, and which was then deposited
with his brother William, to continue in force in case of his death
during the time he should be away on a voyage he then intended
to make to Australia.

In July, 1852, Winn left England for Australia, and the last
thing which had been heard of him was a letter from him received
by his wife, which bore date the 11th of September, 1853. Thus,
in the end of 1860, the presumption of law arose that he was dead.
William Winn died in August, 1852, and the paper in question
was found among his papers by his executor, and the widow now
asked for letters of administration with the will annexed.

Dr. Swdbey moved accordingly.

Sir C. CressircU. — In the Dresent case the condition seems abso-

lutely a condition precedent. Again, can I, since the Wills Act. ad-
mit evidence of such declaration of the deceased as are now before
me? Would it not be making a will by word of mouth? You
had better consider this point.

Dr. Swdbey, referring to Parsons v. Lanoe, 1 Yes. Sen. 190,
said that in that case Lord Hardwicke held similar words, "If Idie
before my return from my journey to Ireland," to be an absolute con-
dition, and. under the Statute of Frauds, considered that he was not
at liberty to admit parol evidence to show adherence after the return
from Ireland. Thus unless the court can in the present case dis-
connect the words " during my absence " from the "San Francisco
or Mexico, " it would seem that Parsons v. Lanoe must govern it.

Sir C ('/■< s.sivell. — I am afraid it must be so. The court is un-
willing by reason of such expressions to set aside testamentary
paper.-, which probably contain the deceased's intentions, but the
present words are too clear to admit of any doubt as to their legal
construction.

Motion refused.

400 FORM, NATURE, AND SCOPE OF WILLS.

WHETHER CONDITIONAL— TEST.
In the Goods of I>obson.

English Court of Probate, 1866.
(L. R. 1 P. & D. 88.)

William Dobson died on the 21st day of November, 1865, leav-
ing a will of the 29th of January, 1863, which commenced with the
following words : " January 29th, 1863. Thursday morning. In
case of any fatal accident happening to me, being about to travel
by railway, I hereby leave all my property to," etc., etc. The tes-
tator did not die upon the journey which he took immediately
after executing this will, and a question was raised in the registry
whether it was contingent on that event.

Dr. Spinks moved for a grant of administration with the will
annexed.

Sir J. P. Wilde. — I am unwilling to refuse probate of a testa-
mentary paper on the ground that it was contingent, unless it is
clear that the testator intended that it should operate only in a cer-
tain event, or during a certain period. In the Goods of Winn '
was a case in which the court felt constrained to hold that the will
was contingent. In that case the words were : " Being on the eve
of embarking for San Francisco, South America, or Mexico, I do
hereby, in the case of my decease during my absence being fully as-
certained and proved, do and will over the whole of my furniture,
etc., or any property of whatsoever description," etc. Parsons v.
Lanoe 2 was cited in that case, and both were instances in which
the court saw, that the testator had expressly limited the operation
of the will to a certain time, and accordingly refused probate of it.
But this case goes by no means so far. The testator's meaning
seems to me to have been this : " My mind is drawn to the consid-
eration that all railway travelling is attended with danger, and
therefore I think I had better make my will." Administration
with the will annexed will therefore be granted.

1 2 Sw. & Tr. 147. ' 1 Ves. Sen. 190.

CONDITIONAL WILL. 401

CONDITIONAL WILL.
Appeal of Joseph M. Morrow.

Pennsylvania Supreme Court, 1887.
(116 Penn. St. 440.)

Petition to admit to probate a paper alleged to be the last will
of Thomas "W. Morrow. Application denied by the register of
wills of Perry County, and appeal dismissed by the Orphans' Court
of said county. Appeal to the Supreme Court.

On Monday, September 14, 1885, deceased, a farmer, who was
engaged in drilling wheat on his farm, broke his drill, and was
obliged to take it to Landisburg to be repaired. Before he left
home he executed the following paper :

" I am going to town with my drill and i aint feeling good and
in case if i shouldend get back do as i say on this paper tomey
and robert is to pay they last layment one this place Samuel nows
his payments Joseph you are to have that land and town property
and pay Magy $3.00 dollars $1.00 dollar a year without interest
tomy Miten is to have his colt fore fredum.

tomy and robert is to settle up and make sail and devide the

money equil amung my five boys this i write down and sign to

my will.

Tuo. W. Morrow.''

On his way he fell seriously sick, the next Thursday was
brought home still sick, grew worse, and on the following Mon-
day died.

The opinion in the Orphans' Court was rendered by

Barnett, J\ J. (After stating facts.)

We have been referred by the aide and zealous counsel of the
proponent to the following authorities :

Jarman on Wills, 5 Amer. ed. p. 28. It is there said, "A
will may be made so as to take effect only on a contingency, and
if the contingency docs not happen the will ought not to be admit-
ted to probate." In note 2, there are cited several examples of con
tingent wills, among others the following: A person intending to
go to Ireland made his will in these words: "If I die before my
return from my journey to [reland, I direct," etc. The testator
went to [reland, returned to England, and died some years after-
26

402 FORM, NATURE, AND SCOPE OF WILLS.

wards. It was held by Lord Hardwicke that the will was contin-
gent, depending upon the event of the testator returning to Eng-
land or not. As he did return the will could have no effect, but
was void : Parsons v. Lanoe, 1 Vesey Sr. 190. The will of a mar-
iner commencing, " Instructions to be followed if I die at sea or
abroad," is conditional: Lindsay v. Lindsay, L. R. 2 Prob. & Div.
459. In Kentucky a will saying, " If I never get back home I
leave you everything I have in the world," was held to be contin-
gent : Maxwell v. Maxwell, 3 Mete. 101. In Damon v. Damon,
8 Allen 192, the will began : " In the name of God, Amen ! I,
J. "W". D., being about to go to Cuba, and knowing the dangers of
voyages, do hereby make this my last will and testament," etc.
" First. If by casualty or otherwise I should lose my life during
this voyage, I give and bequeath to my wife A.," etc. He then
went on to give other specific devises. He returned from Cuba
and died two or three years afterwards. The will was admitted
to probate, but it was held to be conditional as to the first clause.
On the other hand, in Tarver v. Tarver, 9 Pet. 174, the will be-
gan : " In the name of God, Amen ! Being about to travel a con-
siderable distance, and knowing the uncertainty of life, think it
advisable to make some disposition of my estate, do make this my
last will and testament." Mr. Justice Thompson said : " And it
is contended that the condition upon which this instrument was to
take effect as a will, was his dying on the journey and not return-
ing home again. But such is a very strained construction of the
will and by no means warranted. It is no condition, but only
assigning the reason why he made his will at that time. But the
instrument taking effect as a will is not made, at all, to depend
upon the event of his return or not from his journey. There is
no color, therefore, for annulling this will on the ground that it
was conditional."

Walkem on Wills, page 257: The author says: "Papers pro-
pounded as wills are frequently contingent or conditional in form,
and difficulty is sometimes experienced in determining whether or
not, in the events that have happened, the will is to take effect.
The question turns upon the point whether the contingency is
referred to as the occasion of making the will, or as the condition
upon which the instrument is to become operative." "Where the
will is made dependent on a condition precedent, it cannot be

CONDITIONAL AVILL. 40o

upheld as a will unless the condition is performed. Thus, when
the deceased, a master mariner, whilst on a voyage, wrote with m\
own hand a will which commenced : — k This is the last will and
testament of me, in case anything should happen to me during the
remainder of the voyage from hence to Sicily and back to London,
that I give and bequeath,' etc. The court held that the disposi.
tions of the will were dependent on the event referred to at the
beginning of it, and that it had therefore only a contingent oper-
ation and probate was refused," and refers to In the Goods of
Robinson, L. R. 2 Prob. 171, and other cases cited in the note.
On the other hand a will in these words: "I, \V. M., being
physically weak in health, have obtained permission to cease from
all duty for a few days, and I wish during such time to be removed
from the brigAppelina to the floating hospital ship Berwick Walls,
in order to recruit my health, and in the event of my death occur-
ring dining such time, I do hereby will and bequeath," etc., was
held not to be conditional. And a will commencing with the
words: "In ease of any fatal accident happening to me, being
about to travel by railway, I hereby leave," etc., was held not to
be contingent on the testator's death on that journey.

3 Phil. 397, Strauss v. Schmidt, is to the effect that a condi-
tion, , I will may be established by subsequent recognition.

4 Swab. & Trist. 36 ; In the Goods of George Thorne, deceased.
The deceased died in London in September, L864, leaving a paper
writing dated'at the Gold Coast of Africa, on 2d November, L863,
containing inter <ili<i as follows: " He this known to all concerned :
1 request that in the event of my death while serving in this horrid
climate, or any accident happening to me, I leave and bequeath to
my belovci wife," etc. " I consider thai every person should be
prepared for the worst, and particularly in such a treacherous

climate as this, which is considered one of the woist in the world,
which bas compelled me to write this letter." It was held not,
nece88ary to hunt itfl operation to the event of death while on the

Cold Coast.

2Bradf.204: [n ex parte Lindsay : the will contained: "Ac-
cording to my present intention, should anything happen me
before I reach my fnends in St. Louis, 1 wish to make a correel
disposal," etc. The testatrix went to St. Louis, returned to New
York, and died there more than a year after the date of the wilL

404 FORM, NATURE, AND SCOPE OF WILLS.

The will was admitted to probate, the surrogate saying : " There is
another question necessary to be determined in this class of cases,
and that is, whether the words clearly express a contingency upon
which the instrument is to take effect, or whether they may fairly
be interpreted as indicating the cause or occasion of making the
will ; whether, in the language of Sir John Nicholl, ' it is an abso-
lute condition, or dependent upon any particular motive operating
at the time.' ' The surrogate cites the following cases : In Burton
v. Collingwood, 4 Hagg. 176, the will began : " March 5, 1814.
Morning, near one. All men are mortal, and no one knows how
soon his life may be required of him. Lest I should die before the
next sun, I make this my last will and testament," etc. Eighteen
years afterwards the will was held not to be contingent, and was
admitted to probate. In Forbes v. Gordon, 3 Phill. 625, the
words : — " In case of my inability to make a regular codicil to my
will, I desire the following to be taken as a codicil," etc., were held
not to be conditional. In Bateman v. Ponnington, 3 Moore, P. C. C.
223, the instrument was written in ink, but dated and signed in
pencil, with the addition : " In case of accident, I sign this will."
The testator died more than three months afterwards, and the will
was admitted to probate. In the Goods of Ward, 4 Hagg. 179,
the paper propounded contained the expression : " I mention these
matters thus particularly, to serve as a memorandum for you, in case
it should be the Lord's will to call me hence by any fatal event in
the voyage or journey before us." The paper was rejected, but
the testator had made a subsequent altered will. In Sinclair v.
Hone, 6 Yes. 608, the contingency expressed in a codicil was :
" In case I die before I join my beloved wife "; it was held to be
contingent, and defeated by failure of the condition.

3 Bradf. 366, in Thompson v. Conner, the testator, Charles
Stephenson, bequeathed to his cousin, Margaret Baxter, three
hundred dollars ; " this gift and bequest being subject to the fol-
lowing condition, viz. : that the said Margaret Baxter shall pro-
duce from the officers of the ship in which I shall sail on my next
cruise, satisfactory evidence of my decease during the same." His
will was admitted to probate, the surrogate saying : " Doubtless,
the possibility of death during the contemplated cruise was con-
sidered, and led to the incorporation of the condition in the will;
but then the condition refers primarily to evidence, or in other

CONDITIONAL WILL. 405

words, he does not give only npon condition lie should die during
that voyage, but that certain specified proof of his death shall be
produced." The foregoing cases illustrate very fully the difference
between the contingency which furnishes the occasion or motive,
and is given as the reason for making the will at that particular
time, and the contingency upon which the instrument is to take
effect ; the contingency which must happen before the instrument
becomes a will at all. It is the certainty of death and the uncer-
tainty of the time thereof that leads to the making of a will. The
undertaking of a perilous journey, or the probable exposure to
more than usual accidents, may furnish the occasion for making a
will at a particular time ; but although the time of making has
been hastened by the apprehension of danger, the testator does
not consider the instrument inoperative, or regard any further dis-
position necessary merely because the danger has been survived.
When, however, the ordinary uncertainties of human life have not
been carefully provided against, and circumstances may now post-
pone the opportunity for doing so, a crude instrument of testa-
mentary character is sometimes made to bridge over the chasm,
and become operative only upon some designated contingency,
which shall prevent the execution of a maturely considered will.
It is objected by his administrators against the writing left by
Thomas W. Morrow, that it belongs to this latter class; that it is a
contingent will, and the contingency not having happened, that the
will is void. They rely upon the case of Todd's Will, 2 W. >Sz S.
145. And it was upon the authority of that case that the register
refund admission to probate. The will of George Todd began as
follows: " My wish, desire and intention now is, that if I should
not return (which I will, no preventing Providence), what I own
shall be divided as follows," etc. C. J. GmsoN refers to the
cases of Parsons v. Lanoe, and Sinclair v. Hone, 8ltpra } in which
the wills were held to be contingent. " lint," he pays, "an inten-
tion to make the operation of the paper eventual, is not near so
apparent in either of these cases as it is in the one under consider

ation"; and the sentence of the court below refusing probate was

affirmed. In the case at bar we think the will illustrates both

sorts of contingency; that which urged to the present making 01

the instrument, and that upon which the instrument itself Was to
take effect. " I am going to town with my drill ami I aint feeling

406 FORM, NATURE, AND SCOPE OF WILLS.

L, UAitllil,

good," was the contingency suggesting the propriety of making
the will. "And in case if I shouldend get back, do as I say on
this paper," contains the contingency upon which the will should
become operative. It is very clear that the will is not presently
operative. He does not say: "I hereby give and bequeath";
there is no immediate gift. lie does not say absolutely, "do as
I say on this paper"; some time at least must elapse after his de-
parture for town, before any such duty is imposed. The command
is provisional : " if I shouldend get hack do as 1 say on this
paper." It is plain, that his failure to return, is the condition
precedent required before the instrument can become effectual.
If it was ineffectual until there was a failure to return, and if there
was no such failure, it is also plain it never became effectual ; that
it was a contingent will, and became void by the non-happening
of the contingency.

In Todd's Will the expression is, " if I should not return, what
I own shall be divided as follows." In Morrow's Will the expres-
sion is, " if I shouldend get back do as I say on this paper." If I
should not return, and if I shouldend get back, are forms of ex-
pression so plainly equivalent, that we are unable to see any
distinction or difference between them. Notwithstanding the
able argument of proponent's counsel, we are of opinion that
the register's decision was right in principle, and obedient to the
authority of Todd's Will, and must therefore be affirmed. And
now, 4th November, 1886, the decision of the register is affirmed.

Thereupon the proponent took the present appeal and assigned
for error the affirmation of the register's decree refusing to vacate
the letters granted, and to admit the alleged will to probate.

In the Supreme Court (before Mercur, C. J., Gordon, Trun-
key, Sterrett, Green, and Clark, JJ. ; Paxson, J., absent), the
opinion was written by

Green, J.

It is scarcely possible to add anything to the very lucid and ex-
haustive opinion of the learned court below in this case. We
agree entirely with the conclusion arrived at and the reasoning in
support of it. The authorities cited are numerous and altogether
convincing in their character. Our own case of Todd's Will, 2
W. & S. 145, is exactly in point and controls the present con-

COXDITIOXAL WILL. 407

tention. The essential words there were, " if I should not return.
. . . what I own shall be divided as follows." The words here are,
'• in case if I shouldend get back do as I say on this paper." The
meaning in both these cases is the same. A testament is to take
place if there is no return. But there was a return in both in-
stances, and the testament does not transpire. There is no will
because the condition on which it was to come into existence has
not occurred. In both cases the deceased did return.

It is useless to speculate as to what the deceased would have
done had he foreseen the precise facts which were to happen. He
has made no provision for them. The condition which lie has ex-
pressed is one which attaches to the operation of the instrument,
and the effect of this is strongly expressed by Gibson, C. J., in
Todd's Will case, thus : " No text writer seems to have distin-
guished between a condition attached to a particular testamentary
disposition, and a condition attached to the operation of the in-
strument." But in Parsons v. Lanoe, 1 Ves. Sr. 191, Lord Ilard-
wicke said without hesitation that he would not require an au-
thority for such a distinction, and that a paper subject to a condi-
tion ought not to be admitted to probate after failure of the con-
tingency on the happening of which it was to have taken effect.
" Why should it be proved as a will when it could not have the
effect of one?" And so here. The decedent did return from
the journey he was about to take, and the contingency upon which
tin- paper was to take effect as a testament did not happen.
WTiether the journey was long or short is not material, it i> the
fact of the return which defeats the contingency. It is true he
was sick at his return, but as he lived several days after, this fact
also is immaterial. Further discussion seems unnecessary.

1 decree affirmed.

[Further illustrations may be found in the following cases. Con-
djiti&nal: Goods of Porter, L R. 2 1'. .V D. 22; Dougherty v.
Dougherty, I Mete. (Ky.) 25 : Maxwell v. Maxwell, 3 Mete. (Ky.)
101; Robnel v. A-hU-k. I'.» Mo. 171 ; Roberts v. Roberts, 2 Sw.

a- Tr. 337. AlsoluU : French v. French, I I W. Va. t58 ; <i '

of Mayd, 6 1'. I>. 17; Burton \. Collingw 1. I Hagg. 1 T ♦ ■ ;

Thorne's Case, 4 Sw. <fc Tr. 36 ; Martin'fi Case, I.. R. I I'. &
I). 380.

408 FORM, NATURE, AND SCOPE OF WILLS.

See also Goods of Cawtliorn, 3 Sw. & Tr. 417, where a will
conditional in form was not duly executed until after the condition
named had become impossible, and it was held absolute.]

III. CONTRACTS CONCERNING TESTAMENTARY DISPO-
SITIONS.

Every one, — with certain exceptions already considered, 1 — is at
perfect liberty to make an agreement concerning the disposition
to be made of a part or the whole of his real or personal property
at his death. 2 Such an agreement often assumes the form of a
contract to make a will containing certain provisions, or, in some
instances, a contract not to make a will containing certain pro-
visions. It may be either oral or written, and, if duly entered
into, and apart from questions arising under the Statute of Frauds,
will be valid and binding. 3

These propositions are all simple and obvious. From them,
however, arise a number of questions that have caused a good
deal of discussion. These questions concern the practical results
of such contracts, and the methods of enforcing the rights of the
other party.

First, let us consider the case of personal property, and an
agreement by its owner to bequeath it, or a specified portion of
it, to another. Here, if there is a valid consideration for his
promise, and if, at his death, no such bequest has in fact been
made, the amount due may be recovered by suit against the es-
tate of the decedent. 4 Neither the omission to make any will,
nor the making of a will disposing of all testator's property in
other directions, nor any other device or neglect, can deprive the
other party to the contract of his right to enforce his claim against
the estate. 5 The consideration for the promise may be an under-

1 Ante, pp. 1-12.

5 See Davis v. Hendricks, 99 Mo. 478; Snyder v. Snyder (Wis.), 45 N. W.
818.

3 See an elaborate note, citing many authorities, in 66 Am. Dec. 783.

4 Wellington v. Wellington, 145 Mass. 69 ; Bird v. Pope, 73 Mich. 483 ; Lisle
v. Tribble (Ky.), 17 S. W. Rep. 742.

5 Bird v. Pope, 73 Mich. 483 ; Carmichael v. Carmichael, 72 Mich. 76 ;
Bolman v. Overall, 80 Ala. 45 ; s. c. 86 Ala. 168 ; Starkey's Appeal, 61 Conn.
199.

CONTRACTS CONCERNING TESTAMENTARY DISPOSITIONS. 409

taking duly performed on the part of the proposed legatee to care
for the owner of the property, or to render other services, 1 or to re-
lease an existing claim," or anything else that would constitute, on
ordinary principles, a sufficient consideration for a contract to pay
money. And whatever the consideration may be, the contract must,
of course, be fully performed on the part of the proposed legatee,
in so far as such performance is. a condition precedent, in order to
entitle him to enforce his claim against the estate. 3

Second, it is obvious that when the agreement relates to real
property, certain new elements, not usual in case of personal
property, are introduced into the discussion. For in the first
place, the contract must satisfy the provisions of the Statute of
Frauds concerning real estate transactions. 4 A mere oral contract
to devise land is, therefore, not enforceable, 6 unless there has been
performance by the other party on his part such as to satisfy the
statute. 6 And a contract to give to another, by will, all one's
property, both real and personal, falls within the scope of the
Statute of Frauds. 7 In the next place, the method of enforce-
ment may be different from that usual in case of personal property.
For here the proposed devisee may recover the land itself, by suit
against subsequent grantees with notice, or against the heirs, or
devisees, of the decedent, as the case may be. See cases cited
in note in 66 Am. Dec. 787. Under the present head must also
be classed cases where the contract, though relating to personalty,
is of such a character, — as where it relates to a family portrait,
or heirloom, or patents, etc., 8 that equity will grant specific per-
formance.

This equitable remedy is often, and with strict propriety,
spoken of as specific performance. But the exact meaning, m

1 Win itstine v. Wilson (N. C), 10 S. W. Rep. 471.
' J Andrews v. Brewster, 124 N. V. 4:',:'..
lur a case where services were rendered without any definite agreement
concerning a legacy, compare Porter v. Dunn, 181 N. ^ • :! ' '•
1 Where the property la personal, the fact that the contracl may he performed

•within a year sivcs it from the statute. Kent v. Kent, 82 N'. ^ • 560.

•Gould v. Mansfield, ion Mass, his.

' Carmichael v. Carmichael, 72 .Mich. 76 ; Johnson v. Bubbell, 10 N. J. Eq.

882.

' Coul. 1 v. Mansfield, 1":'. Mass. 408.
2 Story, Eq. Jur. g 717 el acq. Robinson on Pat< a1 . .'. 1288.

410 FORM, NATURE, AND SCOPE OF WILLS.

this connection, of the term " specific performance," is worthy of
a more careful attention than it has always received. For what
is decreed in the cases under consideration, is the specific per-
formance of the essence and not the letter of the agreement be-
tween the original parties. What the decedent agreed was, in
essence, that at his death the other party should become the owner
of the land (or of the portrait, etc.). The additional promise
that he would make a will containing a devise, or bequest of the
specific property to the other party, went merely to the method
of effecting the agreed result. Now if the owner dies without
making such a will, it is clear that the court cannot make a will
for him, or incorporate into any will he may have made, a clause
giving the specific property to the plaintiff in the suit. 1 Nor
would there be any advantage in adopting such a course even if it
were possible. What the court can do, and will do, is to compel
the holders of the legal title with notice to convey to the plaintiff,
thus in effect carrvino; out the contract in full, although the default
of the decedent has made it impossible to render the plaintiff an
actual devisee or legatee as was proposed by the terms of the con-
tract. Understood in this accurate sense, it is exactly proper to
say that the courts will enforce specific performance of the con-
tract. But it is not correct to say that they can enforce the spe-
cific contract to make a will.

The importance of this distinction lies chiefly in the fact that
these cases of contract to make wills, with their attendant en-
forcement by specific performance, and the consequent inability
of the owner, after once making such a contract and embodying
it in a will, to effect any change in the ultimate disposition by re-
voking the will, have led to frequent suggestions, in more or less
definite form, that such cases form, in effect, an exception to the
universal rule that every will is " ambulatory " or revocable in
whole and in part, during the life of its maker. In fact, they
form no such exception. The element of revocability forms an
essential feature of every correct definition of the term will. If
an instrument is not revocable, it is not a will. The fact is that
a will such as that just mentioned, executed in conformity with
an agreement to devise, is revocable like every other will. Its

1 Bolman v. Overall, 80 Ala. 451 (455).

AGREEMENT TO DEVISE.— SPECIFIC PERFORMANCE. 411

maker may revoke it, and may execute another will omitting the
proposed devise. And when he dies, such later will must be ad-
mitted to probate regardless of the agreement. 1 And if he simply
revokes the first will, embodying the proposed devise, and makes
no other, the revoked will cannot be admitted to probate, even
though the agreement is offered in its support. In line, the con-
tract that on the death of the owner the other party shall have;
the land, holds good against the owner's heirs or devisees, and
also against grantees of the owner with notice ; but the owner's
capacity to make and revoke as many wills as he pleases, even
though they purport to deal with the hind in question, remains
unimpaired.' The form of the action for relief will of course be
regulated in each case by the situation of the parties and the par-
ticular state of the facts."

These questions concerning contracts to make wills often arise
in connection with "joint wills," where each party makes his will
in favor of the other, and where each will forms the consideration
for the other. In such cases, if the one first dying fails to keep
his agreement, the fact that the survivor did make his will as
agreed, does not form a consideration such as to entitle him to
enforce performance, for he may still revoke his own will, and is
therefore in no worse position than if the agreement had never
been made. 4 The following cases will illustrate the methods
adopted by the courts in practically working out the problems
here discussed.

AGREEMENT TO DEVISE.— SPECIFIC PERFORMANCE.
l>avi<l C. Parsell v. Abraham Stryker cl al.

New Fore Court of Appeals, 1869.
(41 X. V. 480.)
Suit for specific performance of an agreement to devise certain
real estate.
Judgment below for plaintiff. Affirmed al General Term. Appeal.

1 Bolman v. Overall, 80 Ua. 161 ; s. c. 86 Ala. K'> s
For a long and elaborate discussion <>r the law governing contracts to m ike
a will, consult the dissenting opinion of Dunne, 0. J., in Eldred v. Warner
(Ariz.), 25 Pac. Rep. 800.

'■ See cases, pout.

4 Gould v. Mansfield, given ,v<mt.

412 FORM, NATURE, AND SCOPE OF WILLS.

David Parsellj deceased, was the grandfather of plaintiff, and
of Hannah, wife of defendant Stryker. Deceased owned certain
premises in question, and in January, 1854, made an agreement
with plaintiff, the effect of which is stated in the opinion, by which
he promised, in consideration of certain conditions to be performed
by plaintiff, to give the farm, on his death, to plaintiff, and to
make a will devising the same to plaintiff. On June 1, 1858, the
grandfather executed a deed of the same premises to defendant
Stryker, took back a mortgage, and assigned the latter to Stry-
ker's wife Hannah, to secure the support of deceased's wife and
child. He also made a will revoking all former wills and not de-
vising the premises to plaintiff. Plaintiff was in possession and
Stryker and wife knew of his agreement with deceased; but
plaintiff did not know of deceased's deed, mortgage, or will of
June 1, 1858. In August, 1858, the grandfather died. Plain-
tiff, relying on the grandfather's agreement, fully performed all
the conditions on his part, both before and after the conveyance
to defendant, and down to the grandfather's death.

James, J. [After disposing of certain objections to the valid-
itv of the agreement, arising out of its alleged violation of the
constitutional prohibition of leases of agricultural land for more
than twelve years.]

The agreement under consideration is very simple in intent and
purpose, and sufficiently clear in expression to be fully understood.
There is no imputation of fraud or undue influence in its procure-
ments. It is said to be a hard and unconscionable agreement;
but, considering the relation, situation, and age of the parties, and
the incumbrance attached to the farm in the support and main-
tenance of the two women, it is relieved even from that imputa-
tion. The proposition came from the grandfather; it said in sub-
stance, I am an old man, eighty years old, with no family but a
wife and imbecile daughter ; I have this farm, and so much stock,
farming implements, etc. ; I am too feeble to carry on the farm ;
you take it and work it on such terms as long as I live, and at my
death you shall have all there is on the farm, and I, by a last will
and testament, will devise it to you free of all claim except for
the support of my wife and daughter, Margaret, for life. The
proposition was accepted, and, as the referee finds, performed by
the plaintiff. As between the parties, the agreement was fair;

AGREEMENT TO DEVISE. — SPECIFIC PERFORMANCE. 413

it was supported by a sufficient consideration as between thein,
even though inadequate as between strangers ; it was therefore
valid ; and the plaintiff entitled to a specific performance of its
obligations.

[The court then overrule certain exceptions to rulings of the
referee at the trial.]

The agreement in question was in legal effect a sale and pur-
chase of the farm ; under it, until a breach at least, the equitable
title was in plaintiff, the nominal legal title in the grandfather.
His convevances to Stryker only passed the same nominal leijal
title, subject to plaintiff's equitable title, as Stryker received his
deed with full knowledge of plaintiffs possession and rights.

Had Stryker made known to plaintiff the conveyances to him,
he could have availed himself of the covenants to the grandfather;
but as no notice of such conveyance was given to the plaintiff, his
performance to the grandfather was a legal performance of the
agreement. The mortgage passed no greater rights than that
possessed by the mortgagor. (2 Story's Eq. 784.)

As to plaintiff's equities, it made no difference whether the
agreement was to deed the farm at a future day, on performance
by plaintiff, or to devise the farm by a will made in the lifetime
of the party, a court of equity will decree the specific perform-
ance of the latter agreement after death, where otherwise unob-
jectionable, equally with a contract to convey while living.

This question was fully considered and properly decided in
Johnson v. Efubbell, in the Court of Chancery in New Jersey in
1 -.",*;, of which I find a report in the American Law Register,
vol. 5, page 177 [10 N. J. Eq. 332]. On this branch of the
case Chancellor Williamson- said, ''There can be no doubt but
that a person may make a valid agreement, binding himself
legally to make a particular disposition of his property by last
will and testament. The law permits a man to dispose of his
own property at hie pleasure; ;ui<l do good reason can be assigned

why he may not make a legal agreement to dispose of his prop-
erty to a particular individual, or for a particular purpose, as well
by will as by conveyance, to be mule at Bome specified future
period, or upon the happening of some future event. It may be

unv.i c for fl man to emb;irra.-s 1 1 i 1 1 1 -< 1 1 BS to the tiii.il dispo it ion

of his property, but he is the disposer by law of his own fortune,

114 FORM, NATURE, AND SCOPE OF WILLS.

and the sole and best judge as to the manner and time of dispos-
ing- of it. A court of equity will decree the specific performance
of such an agreement, upon the recognized principles by which
it is governed in the exercise of this branch of its jurisdiction."
(Rivere v. Rivere, 3 Dessau. Rep. 195 ; Jones v. Martin, 3
Ambler 882; 19 Yesey 6(5; 3 Yes. 412; Podmore v. Gurnsey,
7 Simons 644 to 654.) The validity of an agreement to devise
land by will was recognized by this court in Stephens v. Rey-
nolds, 6 N. Y. 458.

The foregoing are all the questions presented on the argument
of this appeal. We think the case was properly disposed of by
the referee, and that the order of the General Term affirming the
judgment below should also be affirmed.

All the judges concurring in the result, judgment affirmed.

[Compare Cole v. American etc. Society (N. H.), 14 Atl. Rep.
73. An agreement to give a legacy for services, if sufficiently
clear and definite, will, if no legacy is in fact given, raise a claim
against the estate, and if indefinite, a claim may be based on quan-
tum meruit. Robinson v. Ray nor, 28 N. Y. 494 ; Martin v
Wright, 13 Wend. 460. See Shakespeare v. Markham, 72 N. Y.
400 (s. c. 10 Hun 311); Eaton v. Benton, 13 Hill (N. Y.) 576.J

AGREEMENT NOT TO DEVISE.
Taylor v. Mitchell et al.

Pennsylvania Supreme Court, 1878.
(87 Perm. St. 518.)
Error to the Court of Common Pleas.
Ejectment.

The plaintiff claimed under a certain agreement executed Au-
gust 5th, 1862, by which William Carson, his grandfather, agreed
that "I shall not, nor will I by deed, mortgage, sale, judgment,
devise or otherwise, prejudice or interfere with the rights of the
said John Carson and Nancy McFadden [a son and daughter], as
my heirs-at-law, as to their free and equal share in all my real es-
tate, but the same shall remain free and uncontrolled, to be divided
equally amongst all my legal heirs, including the said John and
Nancy, at my decease."

The title of defendants' lessors rested on a will subsequently

AGREEMENT NOT TO DEVISE. 415

executed by said William Carson on August IS, 1869, devising the
lana in question to certain of his heirs, excluding plaintiff. Will-
iam Carson died in 1871.

"Verdict for plaintiff, subject to the opinion of the court. If
in the opinion of the court the plaintiff had title, judgment on
the verdict for plaintiff. The court, however, entered judgment
for defendants 11011 obstante veredicto.

Trunkey, J.

William Carson's deed, dated 5th August, 1862, is so far from
being testamentary that it contains his covenant not to devise his
real estate. The sole question is, whether that covenant shall
prevail against his will. A valuable consideration is set forth,
namely, a conveyance, for the benefit of said William, by John
Carson ami Nancy McFadden, of their title and interest in a tract
of land which they inherited from their mother; and, for that,
said William covenanted, " that I shall not, nor will I by deed,
mortgage, sale, judgment, devise or otherwise, prejudice or im -
fere with the rights of the said John Carson and Nancy McFad-
den, as my heirs-at-law, as to their free and equal share in all rny
real estate, but the same shall remain free and uncontrolled, to be
divided equally amongst all my legal heirs, including the said
John and Nancy, at my decease." The plain meaning is. that
for a valuable consideration, the covenantor agreed to hold his
real estate unencumbered, free, and uncontrolled, to be divided
amongst hie heirs. Had he contracted, for some consideration,
to sell his land and give possession at his death, and make pro-
vision for conveyance, after his decease, to such persons as Bhould

be hi- heir-, the intent would not be more obvious. For pur|

of reaching the like end he covenanted to stand seised t<> lie use
<»f In- heirs.

John Carson aid Nancy McFadden were children of William,
who also had two other children by his second wile. That nat-
ural love and affection of the parties to this '\^^\, for the other
children, likewise moved them to so stipulate, i- manifesl from
the relationship; and were sucb motive accessary, it is nol essen-
tial that it be expressed: Fisher v. Strickler, LO Barr. 348. Lit-
tle need be predicated of this farther than showing one objeel of
the covenantees was prevention of the ?erj> thing attempted upon
the plaintiff.

416 FORM, NATURE, AND SCOPE OF WILLS.

William Carson died seised of the land, and the devisees stand
in his shoes. They are not innocent third persons. Had he died
intestate his heirs could not violate the contract ; no matter if the
deed is not, in strictness, within the statute of Uses and Trusts,
27 Hen. 8, and the conveyances which sprung up in consequence
thereof. The consideration was not money, necessary to a bar-
gain and sale, nor blood or marriage, necessary to a covenant to
stand seised to uses ; but it was a valuable one, and between the
parties and privies, sufficient to support a contract to hold the
land for use of his heirs, their possession to commence at his
death. Each party, equitably interested, can recover his portion,
in his own name, and is not bound to resort to a personal action
for damages.

Judgment reversed, and judgment is now entered for the plain-
tiff upon the verdict.

ORAL AGREEMENT TO DEVISE.— STATUTE OF FRAUDS.
Mary Gould vs. Edward Mansfield and others.

Massachusetts Supreme Judicial Court, 1869.
(103 Mass. 408.)

Chapman, C. J.— The bill states, in substance, an oral agree-
ment between the plaintiff and Nancy Gould, deceased, the tes-
tatrix of the defendant executors, the purport of which was, that
each of them should make a will in the other's favor, and give
and devise thereby all her property, both real and personal, to
the other, and that neither of them was to make any different will
at any time, or to dispose of her property in any different manner
therefrom. The plaintiff alleges that the said Nancy did make
her will accordingly, and informed the plaintiff thereof, and there-
upon the plaintiff made her will in accordance with the agree-
ment, and did not revoke it during Nancy's lifetime, or make any
different will ; that Nancy stated the agreement to divers persons
during her lifetime ; that the plaintiff performed services for
Nancy, and expended money for her, under the belief that such a
will existed ; but that Nancy made another will, which has been
proved and allowed, giving her property to others. The wills
were to be of all the real and personal property which they had,
but no property is mentioned as being included in them except a

ORAL AGREEMENT TO DEVISE.— STATUTE OF FRAUDS. 417

house, which they owned in common, and in which they lived to-
gether. The personal estate, if any, seems to have been of minor
importance, and the agreement in respect to it is not divisible
from that relating to the real estate.

Among other defences set up, the statute of frauds is pleaded,
and it is contended by the defendants that this was a contract for
the sale of lands within that statute. On the contrary, the
plaintiff denies that it is a contract for a sale within the stat-
ute.

If we look at the character of the act to be done, we find that
a will is considered in the nature of a conveyance by way of ap-
pointment. Barwood v. Groodright, Cowp. 87, 90. "It doth as
effectually give and transfer estates, and alter the property of lands .
and goods, as acts executed by deeds in the lifetime of the par-
ties." 1 Shep. Touch. 402. A devisee comes within the legal
definition of one who takes by purchase. Watkins on Descents,
155. And the contract set forth in the bill is a contract to convey,
by the act alleged, a title in fee simple to lands for a considera-
tion. In Harder v. Haider, 2 Sandf. Ch. 17, such a contract was
held to be within the statute of frauds; and in Walpole v. Or-
ford, 3 Yes. 402, Lord Chancellor Loughborough so regarded
it. See also Browne on St. of Frauds (3d ed.), sec. 203. In the
recent case of Caton v. Caton, Law Rep. 1 Ch. 137, and 2 BL. L.
127, the same doctrine was held. We see no ground to differ
from th<-se authorities, and must regard it as a contract for the
sale of lands, within the statute of frauds.

There has been no part performance which amounts to anything.
The plaintiff says she made a will devising her property to Nancy.
Bui such an instrument was ambulatory, and might have been re
voked by various acts, or by implication of law from subsequenl
changes in the condition or circumstances of the testator. Gen.
St-., c. '.'i'. sec. II. The plaintiff's property is still, as it has
always been, in her own handstand subjeel to her own control.
Th<- services rendered and money paid by the plain till are not
alleged to have been in part performance oi the contract.

It is unnecessary to consider the provision o1 the statute >l
frauds as to tin- personal property, it being indivisible from the
real estate in reaped to the alleged contract, if indeed there be
such property of any considerable value.
27

418 FORM, NATURE, AND SCOPE OF WILLS.

These views being fatal to the plaintiffs case, it is not neces-
sary to decide the other questions discussed.

Demurrer sustained.

[To the same point, Manning v. Pippen (Ala.), 11 So. Rep. 56 ;
Ellis v. Gary, 71 Wis. 176. Also cases cited in note in 66 Am.
Dec. 788.]

Until lately an oral agreement founded on a sufficient con-
sideration to make a certain provision by way of legacy by will
for a particular person was valid in Massachusetts. Wellington
v. Apthorp, 145 Mass. 69. But now by statute such an agree-
ment to be valid must be in writing, and signed. Krell v. Cod-
man> 154 Mass. 454.

EXECUTED CONTRACT TO DEVISE.
Tuit v. Smith.

Pennsylvania Supreme Court, 1890.
(137 Penn. St. 35.)
Appeal from Court of Common Fleas.

Sterrett, J. — Both parties to this action of ejectment claim
under Sarah Smith, who purchased the house and lot in con-
troversy in October, 1884, and, in consideration of plaintiffs
agreement to support and maintain her during life, etc., conveyed
the same to him by deed dated August 29, 1885. The record of
that deed, together with plaintiffs agreement and bond of even
date therewith, was given in evidence, and relied on by him as
evidence of title and right of possession. The defendant, on the
other hand, relied on a prior contract, of a somewhat similar
nature, between Mrs. Smith and himself, not in the form of a
conveyance or agreement to convey the property in controversy
to him, but evidenced by a testamentary paper executed by her
in October, 1884, wherein she devised the house and lot to de-
fendant, " for his kindness and care toward me in sickness and in
health, in watchfulness and care during all my natural life, and at
my decease the aforesaid property shall belong to the said Laura
E. Smith, his heirs or assigns, with all rights, liberties, and hered-
itaments forever. ... It is my will and desire that the said
Laura E. Smith have possession of my house on the first day of

EXECUTED CONTRACT TO DEVISE. 419

November, 1884, and he take me with him, and that he take eare
of me as one of his own family." It was admitted that, in pur-
suance of what is contained in the paper, and in accordance with
the mutual understanding and agreement of both parties, the de-
fendant went into possession, and took Mrs. Smith with him as a
member of his family. She selected her rooms in the house.
They were comfortably fitted up for her, partly with her own
furniture which she had before, and partly with furniture pro-
cured by defendant. She remained there as a member of the
family until the following September, and then left without as-
signing any satisfactory cause for so doing.

When this case was here in 1889, it was held, in an opinion by
our Brother Green, that the testamentary paper above referred
to might operate as a memorandum of contract for the sale of land
sufficient to comply with the statute of frauds, and, as such, it
was admissible in evidence during the lifetime of the testator;
that such a paper, without evidence of anything done under it by
the devisee, cannot be treated as anything more than a will, re-
vocable at the pleasure of the testator; but, when the testator
has put the devisee in possession of the land, and the latter has
complied with his part of the agreement, the devise loses its
revocability, and must be treated as an executed contract. 127
Pa. St. 341, 17 Atl. Rep. 995. The defendant on this trial,
undertook to prove, and did successfully show, that he was put in
possession of the property in controversy by Mr-. Smith, and that
he substantially complied with his part of the contract by taking
her with him and caring for her ; " as one of his own family." The
plaintiff undertook to rebut the evidence thus introduced by de-
fendant, but, aside from showing some slight annoyances and in-
conveniences, BUch as are likely to occur in any ordinary family,
the case was not successfully assailed. Mrs. Sarah Smith, the
old lady who conveyed the property to plaintiff, was his main
witness, and. assuming her testimony to be true, there is nothing
in it to justify her in rescinding the contract with the defendant,
and on the faith of which he expended nev in the improve-
ment of the property. The witness wa6 '. (l1 years old, and testi-
fied in a rambling and incoherent manner, such as mighl be ex-
pected in one of her advanced years. In answer to the question,
u How did the defendant treat you while you were staying with

420 FORM, NATURE, AND SCOPE OF WILLS.

them ? " her answer was : " "Well, only sometimes he would take
a spurt in ugliness; have a bad word, you know. He was just
middling. I suppose he done the best he knew how." Again,
in answer to the question whether defendant's wife abused her,
she said : " Oh, no, not particularly, any more than she wasn't
very much of a talker of a woman, nor she didn't quarrel, nor
nothing of the kind." Again, in answer to the question whether
the defendant offered to strike her, her reply was : " Oh, no. If
he had, he would have got a black nose."

Without referring at length to the plaintiff's rebutting evi-
dence, it is sufficient to say that there appears to be nothing in
any of it that would justify a rescission of the contract in pur-
suance of which defendant was put in possession of the premises
in controversy. In view of the insufficiency of plaintiff's rebut-
ting testimony, the court, in defendant's first point for charge,
was requested to instruct the jury " that the plaintiff had shown
no facts which would justify Sarah Smith in rescinding the con-
tract contained in her will, and therefore he cannot recover."
"We think this point should have been affirmed. The plaintiff
was certainly in no better position than Mrs. Smith would have
been if she had brought the action herself, without having con-
veyed the property. The case may be regarded as a close
one, but, on a careful review of the evidence, we are of opinion
that it should not have been submitted to the jury. Judgment
reversed.

[The theory on which relief in equity is afforded in cases like
those already illustrated, is that while the heirs, or devisees, or
grantees with notice, as the case may be, have the legal title,
they are to be regarded as trustees for the benefit of the person
entitled under the contract, and held to account accordingly, by
such equitable methods as may best suit the situation. Sumner
v. Crane (Mass.), 29 N". E. Kep. 1151 ; note in 66 Am. Dec. 788.
For further general cases see Hudson v. Hudson (Ga.), 13 S. E.
Kep. 583 ; Keagle v. Pessell (Mich.), 52 N. W. Kep..58, and Drake
v. Lanning (N. J.), 24 Atl. Rep. 378. For an illustration and
discussion of special relief in equity where specific performance
could not be enforced, see Johnson v. Hubbell, 10 N. J. Eq. 332.]

JOINT, DOUBLE, ALTERNATIVE, AND DUPLICATE WILLS. 421

IV. JOINT. SIMULTANEOUS, DOUBLE, ALTERNATIVE, AND

DUPLICATE WILLS.

JOINT WILL.'

In the Goods of Letitia Lovegrove, Spinster (deceased),

on Motion.

English Court of Probate, 1862
(2 Sw. & Tr. 453.)
In this ease the deceased, Letitia Lovegrove, died on the 18th
of June, 1861, leaving the following testamentary paper:

"Peckham, January, 1858.
•• We, Hannah Lovegrove and Letitia Lovegrove, at present
living at No. 8, Pitt Street, Peckham, being desirous that, as we
are now living mutually together upon the joint savings of each
other, at the death of either, whichever it may please Almighty
God to take first, the survivor should have all that remains, and
we further desire that at the death of the said survivor, should
there be any money left at her decease, we wish it to be divided
between our nephews and niece hereinafter named.

" Signed in the presence of each other and of both the under-
signed.

" Hanxaii Lovegrove, X her mark.

" Letitia Lovegrove, X ner mark.
" Witnesses,

"Mart Nicholson, X her mark.

" Elizabeth Ash."

From tli'' affidavit of John Lovegrove, it appeared that Hannah
Lovegrove died in April, 1858.

I)i:. Swdbey moved for letters of administration with the will
annexed, as the last will of Letitia Lovegrove, spinster, to be
granted to John Lovegrove, her lawful nephew, and one oi her
next of kin, and one of the persons entitled to the residue of
her personal estate undisposed of by the said will. In Bobson v.

1 Joint wills arc properly such as either dispose of a joinl estate or make a
Joint disposition of property held separately. Bee " Double w ills." pott,

422 FORM, NATURE, AND SCOPE OF WILLS.

Blackburn and Blackburn, 1 Add. 274, it appears that a similar
paper was proved as the will of Joshua Hobson (who was in that
case the first of the mutual testators who died), he having died
without having altered or revoked his part thereof. 1 In the pres-
ent case the survivor has died without altering or revoking her
part of the document, which is, whatever its effect may be, her
will.

In the Goods of Stacey, Deane 6, and In the Goods of Joseph
Raine, 1 Swab. &. Trist. 144, were also cited.

Cur. adv. vult.

Sir C. Cresswell : I think in this case the precedent cited war-
rants the grant prayed.

JOINT WILL CONDITIONED ON SIMULTANEOUS DEATH.
In the Goods of Hugo.

High Court of Justice, Probate Division, 1877.
(2 P. D. 73.)

The Reverend Thomas Hugo, of the Rectory, West Hackney,
Middlesex, died on the 31st of December, 1876, leaving a w T idow,
and three sisters surviving him. On the 15th of March, 1864, he
duly executed his will on a lithographed form, by which he left
his whole property, real and personal, to his wife absolutely, and
appointed her sole executrix. On the 12th of October, 18T4, he
and his wife duly executed a joint will, which commenced : " This
is the last will and testament of us, Thomas Hugo and Agnes
Jane Hugo, his wife, residing at the Rectory House, West Hack-
ney, in case we should be called out of this world at one and the
same time and by one and the same accident." This instrument
by its terms revoked all former wills. It appeared, from the
affidavit of Mrs. Hugo, that, in the month of October, 1874, her
husband and herself were about to make a railway journey, and
there having been then very recently a serious railway accident,
they agreed to make a joint will, to take effect in the event of
their meeting with such an accident, and both being killed at the
same time, which accordingly her husband wrote out. They,
however, returned home in safety. After the death of the de-

1 [Also Matter of Diez, 50 N. Y. 88 ; In the Goods of Hugo, 2 P. D. 73.]

SEPARATE SIMULTANEOUS WILLS. 423

ceased, the joint will was found loose amongst other papers.
The executors of the joint will and the sisters of the deceased
consented that probate should be granted of the will of the 15th
of March, 1S64.

Dr. Swabey moved accordingly.

Sir J. llannen (President). (After considering the bearing of
a case cited.) Now, the question I have to consider is, whether
this instrument ought to be admitted to probate at all as the will
of the testator. To determine that I must see whether or not the
bequests are left absolutely or only conditionally. The words
are. " This is the last will and testament of us, etc., in case we
should be called out of this world at one and the same time and
by one and the same accident." The condition did not happen,
and I consider, therefore, the will is inoperative. The same
question was before the court on two occasions, In the Goods of
Winn, 1 and in Roberts v. Roberts. 2 In the last ease the
testator executed the paper lest anything should happen to him
on his passage to Wales, or during his stay there. He returned
from that trip, and the court held that the paper was conditional,
and on that ground pronounced against it. The observation of
counsel that if the will be conditional the condition must attach
to the whole document, is, I think, well founded, and therefore,
when the testator revoked all former wills, he only did so subject
to the happening of the contingency. I decree probate of the
will of March, L864.

SEPARATE SIMULTANEOUS WILLS.
in Hie Goods of Callaway.

High Couxw of Justice, Probate Division, 1890.
(l:, I'. I>. 117.)

The Bight Rev. Benry Callaway, late Bishop of St. John's,
Caffraria, died March -J''-. L890, at Ottery St. Man, in the county
of Devon, on January 17, L888, being then residenl in this
country, and ha\ ing resigned his bishopric, In' made two wills, one
disposing of hie property in England, and the other disposing ol
his property in South Africa. The English will commenced in

' 2 Sw. & Tr It; 3 - ■'. & Tr ::::; ; I.. •■ (P M & A W,

424 FORM, NATURE, AND SCOPE OF WILLS.

these terms : " This is to be my last will and testament so far only
as respects my real and leasehold estate and my personal estate
and bona notabilia in the United Kingdom of Great Britain and
Ireland, and is not intended in any way to operate as disposing of
my personal and real estate in South Africa or elsewhere than in
the said United Kingdom, as to which I have made a separate and
independent will dated on the same day as this, and therein called
my African Will." In the South African will the testator said,
" i declare this to be my last will and testament except as to such
real, leasehold, or personal estate, if any, as may be situate in
Great Britain."''

This will had been sent to South Africa to be proved ; but on
the executors of the English will taking it into the Principal [Reg-
istry for Probate, the registrar refused probate unless the South
African will were brought in.

B. Deane moved for. probate of the English will alone to be
granted to the executors, without calling on them to bring in the
South African will, and stated that all the next-of-kin consented
to this course. He referred to In the Goods of Coode, 1 In the
Goods of Smart, 2 and In the Goods of Astor. 3

Butt, J. — I think I can do for you what appears to have been
done in that last case. I will direct that probate may be issued of
the English will alone to the executors named therein ; but an
affidavit must be filed exhibiting an attested copy of the South
African will, and that affidavit must be referred to in the probate
as having been filed.

DOUBLE WILLS.

Sometimes two testators may execute one common testamentaiy
instrument, each disposing of his property to the other according
as one or the other mav be the first to die, with or without fur-
ther gifts over in remainder. Such wills are sometimes called
" Reciprocal " or " Double " wills. They differ from joint wills
in that they neither dispose of joint property, nor effect a joint
disposition. An illustration may be found in Re Cawley's Estate
(Penn.), 20 Atlantic Reporter 567, where, in the opinion, many
cases are cited and discussed.

1 Law Rep. 1 P. & D. 449. 2 9 P. D. 64. 3 1 P. D. 150.

INCORPORATION BY REFERENCE. 42.")

ALTERNATIVE WILL>.

Illustration.

James Hamilton, the testator, executed one will in 1871, and
another in January, 1>73. By a codicil to the latter, he provided
that if he should die before March 1st, 1S73, the will of 1871
should take effect; otherwise, the will of 1873. In fact, he died
before March 1st, 1873, and, therefore, the will of 1871 was his
last will. 1

DUPLICATE WILLS.

Wills may be executed in duplicate." Only one of the dupli-
cates should be admitted to probate. 3 Revocation by testator of
one, aiiium revocandi, revokes the will. 4 Whether testator had
both, or only one, in his possession ; and also the careful preserva-
tion by testator of one, though the other is partially mutilated,
are facts bearing on the question of intent/ And the fact that
the one copy in testator's possession cannot be found at his death,
raises a jJ' 4 '" 1 " facie presumption that testator destroyed it, and
so revoked both.

V. INCORPORATION BY REFERENCE.

It is not essential that all portions of a will should be fastened
together in one document. The fact that thev are not so fastened
is likely t<> lead to confusion and doubt, but the actual make-up of
the will when executed may nevertheless be shown by both in-
trinsic and extrinsic evidence. So also it is sufficient if the parts
are only loosely attached, as, for instance, with a pin. 7 And if
they are, at testator's death, found to he in fact fastened together

in any way, the prima facie presumption is that it was (lone by

the testator before execution.'

Sometimes outside papers and documents are, as the saying is,

1 Hamilton's Estate, 71 Penn. St. 69; Bradish v. McClellan, LOO Penn, Si. 807.
' Hubbard v. Alexander, L. R. :: Oh. Div. 7:is ; n,,,. .1. Strickland v. Btricli
lun. I, 6 C. I'.. 724 (745).

man v. ( 'rossman, 90 N. Y . 1 1.">.
4 Onions v. Tyrer, l P. Wmt 848.

1 Pemberton v. Pemberton, 18 Ve , 890 (810); Roberta v. Round, :'• Hagg 548.
I .ivin v. I J Hagg. 366 " In Goods of Braddock, I P i» 188.

• Bees v. Reea, L i: 8 P. & D. 84

426 FORM, NATURE, AND SCOPE OF WILLS.

incorporated into the will by reference. This is, in fact, what oc-
curs when, for instance, a previous will, not duly executed, is re-
vived and republished by suitable reference in a succeeding codicil.
And the general rule is that any paper or document may be in-
corporated by proper reference. 1

In order to incorporate a paper in a will by reference, two
things are strictly necessary.

1. That it must be clearly designated by the description given
of it in the will, as a then existing paper."

2. That it must be shown to have been in existence at the time
when the will was executed, and must be identified. 3

VI. ILLEGAL PROVISIONS, AND INCAPABLE
BENEFICIARIES.

Although, as already stated in the Introduction, the old general
restrictions on the testamentary right are now removed, so that
every competent testator may make such disposition as he pleases
of his property by will, yet the law still imposes, sometimes by
force of general principles, and sometimes by statute, some special
limits beyond which no one can go.

These restrictions may be broadly classified in two general
groups. The first covers certain classes of forbidden provisions,
and the second covers certain classes of persons for whose benefit
testamentary provisions either may not be made at all, or may not
be made in excess of certain defined limits. Each subdivision of
these classes belongs to one or more independent branches of the
law distinct from that of wills, but it will be convenient to here
summarize the more important and usual examples.

1 Newton v. Seaman's Friend Soc'y, 130 Mass. 91 ; 1 Jarman on Wills, 89.
In New York it is held that no outside paper which is testamentary in character
can be thus incorporated. Booth v. Baptist Church, 126 N. Y. 215 ; with
which last case, however, should be compared that of Brown v. Clark, 77
N. Y. 369 (377).

• In Goods of Kehoe, 13 L. R. dr.) 13 ; 1 Jarman on Wills (4th Eng. Ed.;
Randolph & T.'s Am. Ed.), 90, and note (s).

3 Singleton v. Tomlinson, L. R. 3 App. Cas. 404. Parol evidence is ad-
missible to identify the paper thus distinctly referred to. In re Almosnino,
29 L. J. Pr. 46.

WHO CANNOT BE BENEFICIARIES. 427

I. WHAT PROVISIONS CANNOT BE MADE.

Under this head will be considered dispositions forbidden or
illegal on their own account irrespective of the personality or
capacity of the proposed beneficiary.

1. Perpetuities, and similar schemes usually classified, with
greater or less accuracy, under this head. 1

2. Devises and legacies to charity. — It is very common to place
statutory restrictions upon such provisions either by way of limit-
ing outright the proportionate amount which any testator may thus
dispose of, or by rendering all gifts of this character invalid un-
less the will is executed at least a certain specified time before
testator's death."

3. Provisions contrary to public policy. — Here if a gift is pro-
vided subject to a condition hostile to public policy, the gift is
good and the condition is disregarded. 3 The testator's power to
make the proposed gift is thus not interfered with, but only his
power to make it on such a condition.

[A clear exposition of the law bearing on a gift subject to a
condition that the beneficiary should desert his lawful wife, will
be found in llawke v. Euyart (Neb.), 46 N. W. Rep. 422.]

4. Doiver; Curtesy. — According to the common law, and in
many of our States, a testator cannot by will cut off his wife's
right of dower, and a testatrix cannot by will cut off" her hus-
band's right of curtesy. 4 This rule is not now universal. 6

II. who CANNOT BE BENEFIC1 MMK-.

1. Alieit8.—A.\ the COminon law. an alien could take land by
devise, and could hold a- against all but the State, and even against

Gray's Rule against Perpetuities; Chaplin on Buspension of the Power of
Alienation; Gray 1 Restraints on Alienation.

\. V. I.. I860, Oh. 860, ;' 1 ; L. L848, Ch. 819, :' 6,

< >n tin- ubjecl of testan* atary provisions in restraint <>f marriage, and the
various distinctions raised by tin' decisions, Bee a lull di cu Ion In ' Jarm, on
Wills, ) 1. As to other conditions, Bee 2 Jarman en Wills, eh. w\ii. Condition
not n. dispute the '.'.ill. Schouler on Will-, sec. 605.
4 2 Blacksl Comm., 126 et seg., 129 ei seq,

■ Dower and Curtesy, Oal. Civil Code, .' L78 ; Ourte y, Gerard en Titles to
Real Estate, 166.

42S FORM, NATURE, AND SCOPE OF WILLS.

the State until office found. 1 The laws of our States vary among
themselves on this subject, and it would hardly be appropriate
here to attempt to summarize them all. 2

2. Corporations. — At the common law, corporations were ex-
cepted out of the original Statute of Wills, so that no devise of
land to a corporation by will was good, except for charitable uses,
by the statute 43 Eliz., c. 4, which was narrowed by the statute
9 Geo. II., c. 36. 3 But they might take personal property freely
by bequest, except as restricted by their charters. 4 Here, also,
the statutes of our States vary widely, and the local law should in
each case be consulted.

3.^ Subscribing witnesses. — As has been already seen, our stat-
utes often render provisions for witnesses void in order to make
the witnesses competent. 5 The particular law governing each
case, and its bearing on the validity of provisions for witnesses,
must be Bought in the local statutes.

4. Beneficiaries incompetent from public policy . — In addition
to the cases above referred to under I. 3, where the conditions im-
posed upon a gift itself were deemed contrary to public policy, as,
a gift in restraint of marriage, irrespective of the particular bene-
ficiary, there are special cases where the standing of the beneficiary
is such as to render the approval of any provision for him, in par-
ticular, contrary to public policy. Such, for example, is the case
of a beneficiary who murders the testator," and, as held in Penn-
sylvania, a devise to an " Infidel Society." 7 It will also be noticed
that the other restrictions already mentioned, on testamentary gifts
to corporations, on perpetuities, on gifts to charity, and to sub-
scribing witnesses, and also those protecting the right of dower

1 Fairfax v. Hunter, 7 Cranch 603. As to personal property, see 1 Blackst.
Comm. 372.

2 See Prof. Chase's note, 1 Blackst. Comm. 372; Jarman on "Wills (Randolph
& T.'s Am. Ed.) 185, and note.'

3 1 Blackst. Comm. 479. For the present English law, see the statute 1 Vict.,
c. 26; 1 Jarm. on Wills, 65, 66.

4 Schouler on Wills, sec. 24. 6 Ante, p. 293.

6 Riggs v. Palmer, 115 N. Y. 506.

7 Zeisweiss v. James, 63 Penn. St. 463, where, however, the fact that the
society was yet unincorporated and would probably not be incorporated by the
Legislature, played some part.

NUNCUPATIVE WILLS. 429

and curtesy, arise, either wholly or in part, from regard for the
claims of public policy either in its general scope or in its particu-
lar application. But they also, whatever the original ground of
their existence, depend wholly, or chiefly, on explicit statutes,
leaving to the courts the duty of applying to cases not covered by
statute the general principles of the law of public policy when-
ever properly applicable.

[The case of Riggs v. Palmer, cited in note 6, p. 428, contains
two elaborate opinions on opposing sides of the question. Com-
pare Owens v. Owens, 100 X. C. 240.]

VII. NUNCUPATIVE WILLS.

In discussing nuncupative, or oral, wills, three periods should
be considered. 1

The first ]_><,'* <,il is that preceding 29 Charles II., during which
time any person might make a valid oral declaration of his testa-
mentary wishes. This privilege was confined, at any rate during
the latter part of the period, and as a general rule, to cases where
the testator was in extremis?

The second period begins with the passage of the Statute of
Frauds (29 Charles II., 1670). This provided that a nuncupative
will, to be valid, (1) must be made in the testator's last sickness,
in his own habitation or dwelling-house, or where he had been
previously resident ten days at the least, except he be surprised
with Bickness on a journey, or from home, and die without return-
ingto his dwelling. (2). There musl also be three witnesses pres-
ent at the making of the will, and (3), they, or some of them, musl
be specially required t<> bear witness thereto by the testator hini-
Belf. (This latter request was known as the rogatio testium I

From the application of these new rules, however, three import-
ant classes of testators were excepted by the Btatute :

1 Under the law of Louisiana, the term " nuncupative " baa a different mean-
ing, well illustrated in Miller v. Bhumaker, 12 La. Ann. 898
Chancellor Cent, in Prince v. Hazleton, 20 Johns. ;it 511.
Blackstone (2 Comm. 500, 501) gives a fuller statement <>f tin'- part ■ • *" t » i . *
st:it me and ii s |.m\ isions concerning reduction to writing and proof. It
provided thai no written will should I"- repealed or altered by mere oral words.
Compare Brook v. Chappell, ::i Wis. W5; Mi Cune \. Hou e, 6 Ohio 1 14

430 FORM, NATURE, AND SCOPE OF WILLS.

1. Testators disposing of estates not exceeding £30 ;

2. Mariners at sea ;

3. Soldiers in actual military service.

In these three classes of cases no change was made, and conse-
quently wills falling within any one of them might still be made
according to what had been, during the first period, the general
law for all persons and for personal estates of every magnitude.

It is to be noticed, then, that in the second period the provi-
sions of the general law were made much more precise and strict
than before, but that nevertheless it still continued possible for all
persons, in their last sickness, to make nuncupative wills by com-
plying with the new requirements ; and also that the new require-
ments had no bearing whatever on the three excepted classes.
These latter were known as " privileged testators."

The third period opens with 1 Victoria, c. 26 (1837). By the
Statute of Wills passed in that year, the right to make nuncupa-
tive wills was utterly swept away, except that the second and third
of the •' privileged classes," namely, soldiers being in actual mili-
tary service, and mariners or seamen being at sea, still retain their
old privilege. A testator of either class " may dispose of his per-
sonal estate as he might have done before the making of this act."
Under the old law and under both acts nuncupative wills could
only act upon personal property. And the same has always been
true in this country. 1

Now the statutes on this subject in some of our States are based
on the provisions of the Statute of Frauds, and in others correspond
more or less closely with those of the third period represented by
the statute of 1 Vict., c. 26. And in detail of requirement and
of phraseology the variations among all the laws are numerous
and have, of course, an important bearing on the cases decided.

Except in the case of the privileged testators, 2 all nuncupative
w iHs — where allowed at all — must be made " in extremis" when
the testator does not expect to recover, and has no reasonable time
to prepare and execute a written will. 3

1 Sadler v. Sadler, 60 Miss. 251; Wooldridge v, Hancock (Tex.), 6 S. W.
818; Leathers v. Greenacre, 53 Me. 561; Furrh v. Winston, 66 Tex. 521; Van
Deuzenv. Gordon, 39 Vt. Ill; this may, of course, be varied by statute, Ash-
worth v. Carleton, 12 Ohio St. 381.

■ Leathers v. Greenacre, 53 Me. 561.

3 O'Neill v. Smith, 33 Md. 569; Scaife v. Emmons, 84 Ga. 619; Haus v.

NUNCUPATIVE WILLS. 431

Except in the case of the "privileged testators," ' a rogatio tes-
tinm, or summoning of witnesses by testator to take notice that
his oral expressions constitute his will, is essential. 2

Light will be thrown on the meaning and scope of the statu-
tory terms describing the " privileged classes," by the following

Illustrations,
(a). Soldiers in actual service.

1. The soldier, to be in " actual service," must be engaged in a
military expedition. 3

2. Thus, a soldier quartered with his regiment in barracks, is
not in actual service. 4

3. So, a soldier at home on furlough, is not in actual service. 5

4. But he is in actual service when in the enemy's country, and
liable to be called into battle at any time. 6

5. And so, also, is in actual service, if, when on a march to
meet the enemy, he is ordered into the hospital for general sick-
ness. He is still " on the expedition." 7

(At. Mariners at sea.

1. The term " mariner," 8 or sailor, is not confined to those in
the navy. It applies equally to the merchant service, as, for in-
stance, to the master of a merchant vessel. 9

2. Nor is it confined to the common sailors only. It covers all
grades and classes of persons employed on board ship. As, the
purser of a man-of-war ; lu and ;i commanding officer. 11

3. At sea. Sec Hubbard v. Hubbard, given p08&

Palmar, 21 Perm. St. 896; <' : ,rroll v. Bonlum (N\ J.), 9 A. 871; Prince v. Ha-
zleton, 30 Johns. 508; contra, Johnston v. Glasscock, 2 Ah '.';!'.»
■ Botrioid v. Krake, l Abb. Pr. R. (n. s.) LIS.
Will ,,!' Behden, 20 N. J. Bq. 478; Dockum v. Rohinson, 26 N. B 872;
Bennett v. Jackson, 2 Phillira. 190; Hausv. Palmer, 21 Penn. St. 296; Bun-
drick v. Baygood, L06 N. C. 168.

Drummond v. Parish, 8 Curt. 522. For a general discussion Bee Smith's

Will. 6 Phila. L04
i White v. Repton, BOurt 818. Bmith's Will, 8 Phila 104

« Leathers v. Greenacre, 58 Me. 561. " Gould v. Safitord, 89 \ t. 498

See Warren v. w arren, 2 R. I. 188.

I ,i ..i Milligan, 2 Roherts. 108; Goods ot Parker, 2 8w. & Tr.

Goods «-f Hays, 2 Curt 888. " <;, ""l ol Lay, 2 I utf 87&

432 F011M, NATURE, AND SCOPE OF WILLS.

NUNCUPATIVE WILL.— MARINER AT SEA.

Marin Li. Hubbard v. Elias Hubbard.

New York Couut op Appeals, 1853.
(8 N. Y. 196.)

Application for probate of a nuncupative will of William L.
Hubbard.

The will was established by the decree of the Surrogate ; at
Special Term this decree was reversed ; the General Term re-
versed the Special Term ; and this final appeal was now taken.

William L. Hubbard was the husband of the plaintiff, and a
son of defendant. He was captain and owner of a coasting
schooner. On July 5, 1 849, she was lying at anchor in Delaware
Bay, inside the breakwater, about a mile out from land. On that
day, deceased was taken suddenly sick, on board, and died. Just
before his death he told several witnesses that he wished his wife
to have all his property. He did not make any request to them
to bear witness that it was his will. He spoke of the fact that a
will he had had was destroyed, and he asked the mate to settle
his affairs.

Mason, J. — It is provided in this State by statute that no
nuncupative or unwritten will, bequeathing personal estate, shall
be valid, unless made by a soldier while in actual service, or by a
mariner while at sea. (2 R. S. 60, sec. 22.) As to the wills of
soldiers in actual service, and mariners at sea, they are left en-
tirely untrammeled by our statutes, and are governed by the
principles of the common law. The exception in our statute of
wills in favor of soldiers and mariners was taken from the 29
Car. 2, Chap. 3, and is precisely the same, and the same exception
is retained in England by their new statute of wills. (1 Vic.,
Chap. 26, sec. 11.) The testator was a mariner within the mean-
ing of the statute. The courts have given a very liberal con-
struction to this exception in behalf of mariners, and have held
it to include the whole service, applying equally to superior offi-
cers up to the commander-in-chief as to a common seaman. (2
Curt. Eccl. R. 338 ; 1 Williams on Exec. 97.) It has been held
to apply to the purser of a man-of-war, and embraces all seamen
in the merchant service. (Morrell v. Morrell, 1 Hagg. R. 51 ; 2

NUNCUPATIVE WILL. — MARINER AT SEA. 433

Curt. K. 338; 1 Williams on Exec. 97.) This will was made at
sea. In legal parlance waters within the ebb and flow of the tide
are considered the sea. (Bouv. Law Die, Title Sea ; Angell on
Tide Waters, 44 to 49 ; Gilpin's R. 528 ; In re Jefferson, 10
Wheaton R. 428 ; Baker v. Hoag, 3 Selden 561.) Lord Hale
says the sea is either that which lies within the body of the
county, or without it. That an arm or branch of the sea within
the " fauces terrce" where a man may reasonably discern be-
tween shore and shore, is, or at least may be, within the body of a
county, but that part of the sea which lies not within the body of
a county is called the main sea, or ocean. (Harg. Tract, Chap. 4,
p. 10 ; Smith on the Const, of Statutes, sec. 588.) He adds,
" that is called an arm of the sea where the sea floios and rejlows,
and so far only as the sea flows and reflows"; and in this he fol-
lows the exact definition given by the Book of Assizes, 22 ; Id.
93, and this is the doctrine recognized by the courts of this coun-
try. (Gilpin R. 524; United States v. Grush, 5 Mason 290;
United States v. AVillberger, 5 Wheaton 76 to 94; United States
v. Robinson, 4 Mason 307, 1 Gallis. R. 626.)

The courts in England have gone to the utmost verge of con-
struction in extending this exception in behalf of seamen. In a
case which came before the prerogative court of Canterbury in
1810, when the deceased was mate of her Majesty's ship Calliope,
and whilst the vessel was in the harbor of Buenos Avres, he ob-
tained leave to go on shore, when he met with a serious fall, and
was so severely injured that he died on shore a few days after.
Immediately after the accident he wrote on a watch hill with a
pencil, his will, and which was unattested, but which was cut out
and certified to by the officers on board the ship, and the court
held it a good will of a seaman at sea, and ordered it to probate.
(2 Curt. Ecel. R. 375.) The common-law doctrine in regard to
nuncupative will- was borrowed from the civil law. (Drummond
v. Parish, 3 Curt. Keel. It. 522, 531, etc.) By the civil law the
strict formalities, both in the execution and construction of nun-
cupative will- "I soldiers was dispensed with, and although they
should neither call the legal number of witnesses, nor observe any
other solemnity, yet their testament was held good it they were
in actual Bervice. (Justin. Lib. 2, Title 11:1 Lomax on Exrs.
40.) The civil law was extremely indulgenl in regard to the wills
28

434 FORM, NATURE, AND SCOPE OF WILLS.

of soldiers. If a soldier wrote anything in bloody letters upon
his shield, or in the dust of the field with his sword, it was held
a good military testament. (1 Bl. Com. 417; 1 Loin ax on Exrs.
40, 41.) The common law, however, has not extended this priv-
ilege so far as the civil. (1 Bl. Com., supra.) Blackstone says
that soldiers in actual military service ma}' make nuncupative
wills, and dispose of their goods, wages, and other personal chat-
tels without those forms, solemnity, and expenses which the law
requires in other cases.

The rules, however, which are to be observed in making wills
by soldiers and mariners are the same by the common law, and
yet it must be confessed that the formalities which are necessary
to be observed in the making of wills by soldiers and seamen are
not defined with any very satisfactory precision in any of the
English elementary treatises upon the subject of wills. Swin-
burne savs that those solemnities only are necessarv which are
juris gentium. (Swinburne, pt. 1, sec. 14.) Before the statute
the ecclesiastical courts to whose jurisdiction the establishment of
personal testaments belonged, required no ceremonies in the pub-
lication thereof, or the subscription of any witnesses to attest the
same. (1 Roberts on Wills, 147.) A will of personal estate, if
written in the testator's own hand, though it had neither his
name or seal to it, nor witnesses present at its publication, was
held effectual, provided the handwriting could be proved. (1
Roberts on Wills, 148.) And so if written by another person by
the testator's directions, and without his signing it, it was held
good. (Id. 148.) It is laid down in books of very high authority
that a nuncupative testament may be made not only by the proper
motions of the testator, but also at the interrogations of another.
(Swinburne on Wills, part 1, sec. 12, p. 6; Lomax on Exrs. 38;
1 Williams on Exrs. 102.) And Swinburne says, " As for any
precise form of words, none is required, neither is it material
whether the testator speak properly or improperly, so that his
meaning appears" (2 Swinburne, part 4, sec. 26, p. 643); and he
says concerning the solemnities of the civil law to be observed in
the making of testaments, soldiers are clearly acquitted from the
observation thereof, saving that in the opinion of divers writers,
soldiers, when they make their testaments, ought to require the
witnesses to be present. (1 Swin. part 1, sec. 14, p. 94.) It is

NUNCUPATIVE WILL. — MARINER AT SKA. 433

necessary, however, that the testamentary capacity of the de-
ceased and the animus testandi at the time of the alleged
nuncupation should be clearly and satisfactorily proved in the case
of the nuncupative will. (1 Williams on Exrs. 102; 1 Adams
Ecc. K. 389, 390.)

In the present case the evidence most clearly shows that the
deceased was of sound mind and memory, and I think the evi-
dence in the case satisfactorily establishes the animus testandi
at the time of the alleged nuncupation. He told his mate, Beck-
with, to tell his wife that he loved her till the end. lie was ex-
tremely sick, and undoubtedly apprehending death, and when
asked if he had a will, he replied that he had not, and on being
asked what disposition he wished to make of his property, he said
he wished his wife to have all his personal property, and at the
same time requested Beckwith to settle his affairs and see to his
business. El should be borne in mind, that as well the testator as
all of the witnesses present were seamen, and were undoubtedly
acquainted with the rights of mariners in regard to making their
wills. They evidently understood it to be a will, and spoke of it
a- such. And I think the animus testandi is satisfactorily es-
tablished. The evidence is quite as strong in the case under con-
sideration as it was in the case of Parsons v. Parsons (2 Green-
leaf's R. 298, 300), where the testator was asked to whom he
wished to give his property, and replied, "to my wife, that is
agreed upon/' and the Supreme Court of Maine sustained the will
in that case. I am aware that it is said in some of the books that,
it is essential to a nuncupative will that an executor be named,
but this i- no more essential than in a written will. (Robe's Abr.
'.•"7: How v. Goodfrey, Finch's R. 361 ; [Prince v. ELazleton],
20 J. R. "il'-'.i 1 am inclined to think, however, that the evi-
dence [s sufficient, in the present case, to show thai the testator
intended to make Beckwith hi- executor, but it is not necessary
thai he should have named one.

It i- not necessary to decide whether the mariner must make
his will in hi- lasl sickness and in extremis, as was held to be the
case under our former Btatute of wills (20 J. R. 503 [Prince
v. ELazleton, 20 Johns. El. 502],) and as i- required under tin;
t itutes of several of our ■ r States (I Watts & Serg. 357; t
Humph. R. 342 ; 3 B. Monroe's JR. 162 ; I Rawle R. 46; 6 Watta

430 FORM, NATUKE, AND SCOPE OF WILLS.

& Serg. 184; 3 Leigh. R 140; 1 Munf. R 466; 6 B. Monroe
R. 538 ; 10 Yerg. R. 501 ; 2 Greenleaf's R. 298) ; for there can
be no doubt upon the evidence in this case, but this will was made
both in extremis and in the last sickness, and under circumstances
which precluded the making of a written will.

I think that the factum, of this nuncupative will is clearly es-
tablished by the evidence in the case, and also the testamentary
capacity of the deceased, and that the animus testandi at the
time of the alleged nuncupation is sufficiently apparent from the
evidence in the case, and that the judgment of the Supreme Court
should be affirmed.

, Judgment affirmed.

VIII. CONFLICT OF LAWS.

I. Real Property. — The lex loci rei sitce, or law of the place
where the land lies, governs the testator's capacity, and power to
dispose of it, in the manner proposed, and the forms required for
execution. 1 And so also with the construction of will devising
real property, 2 though the applicability of this rule to matters of
construction has been doubted. 3

II. Personal Property. — The lex domicilii, or law of the place
where testator is domiciled at the time of his death, governs
the validity and construction of a will of personal property, the
capacity of the testator, his power to make a will disposing of his
property as proposed, and the forms required for execution. 4

Questions of evidence are in both classes of cases determined
by the lex fori, or law of the jurisdiction in whose courts they
are raised. 6

1 Randolph & T.'s note to 1 Jarman on Wills, 1, and cases cited; Chaplin on
Suspension of the Power of Alienation, sees. 516-522; Story, Conflict of Laws,
sees. 430, 431, 474; Wharton, Conflict of Laws, sees. 570, 575.

2 1 Jarman on Wills, 1; 1 Williams on Exrs. (Perkins' Am. Ed.), 429 note;
Wharton, Conflict of Laws, sec. 596.

3 1 Jarman on Wills (Randolph & T.'s Am. Ed.), 2, note 2; Story, Conflict of
Laws, sec. 479 h.

4 1 Jarman on Wills, 2; 2 Wms. on Exrs. 1088; 1 Wms. on Exrs. 366, note
(n); Story, Conflict of Laws, sees. 465, 479 a; Wharton, Conflict of Laws, sees.
570, 574.

6 Wharton, Conflict of Laws, sec. 574.

MISCELLANEOUS. 437

IX. MISCELLANEOUS.

Attention may here be called to a few further points within
the general field of this chapter.

(a). Mistake.— In Nelson v. McDonald, 61 Hun 406, John and
Jane Nelson, husband and wife, executed wills at the same time.
John died, and it was then first discovered that each had by mis-
take signed the will prepared for the other. Jane brought a suit
for reformation by changing the provisions in the husband's will
to make them conform to those in the will he intended to sign.
It was held that the action could not be maintained.

To the same effect is In re Goods of Hunt, L. E. 3 P. &
D. 250.

{b). Testator not dead.— Charles James Napier was reported in
the London Gazette of January 24, 1809, to have been killed in
an engagement with the enemy, at Corunna in Spain. Probate
of his will was granted. The report was erroneous, and subse-
quently he returned to England. Probate was revoked and the
will was cancelled and delivery thereof to him decreed. In
Goods of Napier, 1 Phillim. 83.

(c). On proceedings lor probate, false and scandalous matter in
the will may be struck out. Matter of T. B., 44 N. Y. State Re-
porter 304.

(d). A distinction is to be observed between conditional wills
{ante, p. 397 et seq.) and wills certain parts of which are con-
ditional. In the latter case, the will as such holds good, while
the parts in question are, in accordance with ordinary principles,
subject to the condition.'

1 Schouler on Wills, § 285 ; and for a very full discussion of conditions in
wills, Jaruian ou Wills, Index, "Conditions."

CHAPTER VI.

CONSTRUCTION, PRESUMPTIONS, AND RULES OF

LAW.

The subject of Construction of Wills covers a broad field to
which entire books have been devoted. 1 For a detailed statement
and discussion of the entire subject, these works may be referred
to. It is the purpose of the present chapter to state the leading
and more important rules, in concise form, with citations of au-
thorities where they have been explained and applied. Special
obligation in the treatment of the present subject must be ac-
knowledged to the writers already referred to.

In the first place, then, as to Construction in general. There
is a Law of Construction of Wills, and another Law of Construction
of Deeds. The latter deals rather in hard and fast rules which
are applied with great strictness and which have, accordingly, led
to comparatively little litigation. The former, on the other hand,
seeks, within certain limits to be hereafter explained, for the
real intention of the testator, as expressed in the will. The rea-
son for the distinction, at least in large part, seems to be that
deeds have usually been drawn by persons familiar with technical
language, or substantially copied from other instruments so drawn,
and, also, as a usual rule, are comparatively simple in their pur-
poses, and run along in familiar and customary ruts ; while wills
are so commonly drawn by laymen, and so often even by ignorant
persons, and vary so enormously in their scheme, purposes, and
provisions, that the courts have been obliged to accord them
special treatment, and endeavor, through the mists of obscure, or
inartificial, or confusing expressions, to get at the real purpose of
the testator. 2 It has, however, been found, during the lapse of
the centuries while our law has been growing, that even testament-

1 Hawkins on Wills, Jarman on Wills, Vols. II., III.
" 2 Jarman on Wills, 837.
(438)

CONSTRUCTION OF WILLS. 439

ary provisions, variant as they are both in purpose and in ex-
pression, do, nevertheless, group themselves in classes, and in each
class certain rules have gradually grown up which attribute to
given forms of expression certain prima facie meanings which
the courts will in any given case now take to be the real meaning
unless a contrary intent appears from a view of the entire instru-
ment. Hawkins defines a rule of construction, accordingly, in
substance, as a rule that, if a given expression might be taken to
mean cither x or y (these letters representing the different mean-
ings that might in reason be attributed to any given phrase), it
shall prima facie be taken to mean ,c (that is, a particular one of
those possible meanings), unless a contrary intention appears,
either expressly or by implication, from the instrument. 1

It will thus be seen that these rules only apply where the testa-
tor might have intended either of the possible meanings ; and be-
ing adopted merely to give effect to his probable intent, they yield
to proof, drawn from the instrument, that he in fact did not have
the presumed intention, but really intended to give his expression
the other meaning. For instance, if a testator provides for his
"children," it is obvious that he might have meant merely his
own sons and daughters, or might have intended (as not infre-
quently happens) to include his grandchildren. Here the rule is
that prima facie the words mean only his own sons and daughters ;
but yet if the will shows that in fact he meant to include grand-
children within the term " children, " the rule yields, and effect is
given to his intention. So, also, the same word is, by another
rule, held jprimd facie to mean legitimate children. But if the
instrumenl -how.-, that in fact he meant to include illegitimate
children, thia intent prevails. The intent must besought — except
in certain cases— in the will itself, and cannot be derived from
extrinsic «\ idence. This subject of evidence of intention will be
discussed hereafter by itself."

Presumptions differ from rules of construction in that they
may be rebutted by extrinsic evidence. For instance, if a will is
drawn with blanks for the names of legatees, and these have been

tilled in, there is a presiim pi i« >n that they were tilled in before

execution. Bui extrinsic evidence is admissible to show thai in
1 Hawkins «>n Wills, Preface, vil, Bee Index, " Evidence."

440 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

fact they were tilled in after execution. So, also, if each of two
testamentary instruments probated together gives a legacy of the
«mie amount to the same person, and in each case assigns the
same motive for the gift, there is a presumption that they are not
cumulative, and that only one gift was intended, 1 and extrinsic
evidence is admissible to show a contrary intent. But in the case
of a mere duplicate gift, in totidem verbis, in two instruments,
there is a rule of construction that prima facie the legacies are
cumulative. 3 While if the identical gifts are contained in the
same instrument, there is a rule of construction thai prima facie
they are not cumulative. 3 Where a will, when presented for pro-
bate, shows interlineations, or other alterations on its face, they
are presumed to have been made after execution." The result
is that the will stands, and the changes are disregarded. 6 But if
there were blanks left for names and amounts, and these have
been filled in, there is a presumption that they were filled in be-
fore execution. 6 In either case, the actual facts may be shown by
extrinsic evidence.

Rules of Law are fixed principles which absolutely control the
meaning to be given to certain provisions, and which cannot be
varied or avoided by any evidence. Thus, where a provision
clearly transgresses the law against Perpetuities, it is held invalid.
No evidence could make it good, because the law has expressly
forbidden the thing thus provided for.

The foregoing subjects are here compared and distinguished
because the peculiarities of each serve to throw into stronger
contrast the essential characteristics of the others.

In proceeding now to consider the rules of Construction, it may

1 Hurst v. Beach, 5 Madd. 358.

5 Dewitt v. Yates, 10 Johns. (N. Y.) 156. This being a rule of construction,
only intrinsic evidence can be referred to to rebut it. Hurst v. Beach, 5
Madd. 358.

3 Dewitt v. Yates, 10 Johns. (N. Y.) 156. Though Hawkins gives this as a
rule of construction, he expresses hesitation in his note (p. 305), whether it may
not still be, as it originally was, a mere presumption, capable of rebuttal by
extrinsic as well as intrinsic evidence, instead of a strict rule of construction to
be rebutted only by the terms of the instrument itself ; he inclines to the latter
view.

4 1 Jarman on Wills, 143 ; Schouler on Wills, 435.

5 Doane v. Hadlock, 42 Me. 72. 6 1 Jarman on Wills, 144.

KULES OF CONSTRUCTION. 441

be added that they may best be classified in two groups, the first
including the principles of general scope applicable to all cases of
contruction of wills, and the second including the rules bearing
on special provisions or particular phrases. Attention must here
agaiu be called to the important principle that every rule of
construction aimed at determining testator's intent as between
two or more possible meanings, is subject to this standing quali-
fication, namely, — " Unless a contrary intention appears from the
will." These words should be taken as forming an appendix to
each rule.

KULES OF CONSTRUCTION. 1

A. General Principles.

1. The great aim of the courts, in construing wills, is to arrive
at the intent of the testator.

But it. is important to notice that it is testator's expressed inten-
tion that must be sought, and not his desires which are not in
fact expressed. The question is not, What did the testator in fact
wish, but, What meaning did he in fact express in the provision
under consideration.

2. In seeking the testator's intention, as expressed in the will,
the entire instrument, including codicils 2 if any, is to be exam-
ined, and the meaning of each part determined in the light of
the whole. 8

3. Every expression is to be so construed, if practicable, as to
give effect to all parts of the will, and not to nullify any. 4

1 A distinction exists between Principles of Interpretation, such for instance
as A, 2, s>ipra, and Rules of Construction, such as B, (a), 1, infra. The
division here adopted, however, between the principles and rules of general
BCOpe nn the one hand, and those of special application in particular iiiMances
on tlic other, though not always sharply marked and clear cut, will, it is be-
lieved, he found on the whole more practical and convenient.

• Brimmer v. Bohier, 1 Cush. 118(181-2); Ward v. Ward. 105 N. Y. 68.

»2Jarmanon Wills. 840; Welschv. Belleville etc. Hank. 04 111. 101 ; Ranks
v. .lone,, i;o Ala. 005. A codicil constitutes a part of the will. It operates as
a revocation of the preceding instrument only so far as required by its clear im
port. Wetmore V. Parker, 52 N. Y. 450. General terms are often restricted

in meaning by the context. Webster v. Wiere, 51 Conn, 569; Timewell v.
Perkins, 2 Atk. 102.

1 Hanks v .b.rie,. 60 Ala. oor, ; Rogers v. Rogers (N .1 < h ). 28 All. R. 125;
Bard ■• Ashley, 117 N. Y. our,, Terry v. Wiggins, 47 N. Y. 512(517).

442 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

4. The will is to be so construed, if practicable, as to avoid

intestacy. 1

5. Where the various parts of a will cannot be reconciled and
rendered harmonious, the later prima facie override the earlier;*
the theorv being that in such case the testator has reconsidered
and reversed his first purpose. But this is a harsh rule, and only
to be applied after all efforts to reconcile the provisions, and give
effect to all, have failed. 3

6. No technical terms are requisite in any part of a will. 4 But
if they are employed, they are prima facie to be taken in their
proper technical sense. 6

T. It is to be assumed prima facie that a testator's words are
to be understood in their correct and primary sense, and inter-
preted according to grammatical rules. 8

8. As already explained in Chapter V. (under the head of Con-
flict of Laws), the construction of wills is governed, in wills of
real property, by the law of the place where the land lies, and in
wills of personal property by the law of testator's domicil at the
time of his death. 7

9. A will does not go into effect until the death of a testator.
This rule inheres in the very nature of a will. But it may, as the
saying is, speak either as of the date of execution or as of the date
of testator's death, or some other date. That is to say, references
in the will, such as to classes of beneficiaries, or to testator's prop-
erty, designated or described in general terms, might be intended
by him, on the one hand, to refer to the persons or property
answering to the description at the time of execution, or, on the

1 Vernon v. Vernon, 53 N. Y. 351 (361) ; Toms v. Williams, 41 Mich.
552 (566).

s 2 Jarman on Wills, 840 ; Van Nostrand v. Moore, 52 N. Y. 12 (20) ; Murfitt
v. Jessop, 94 111. 158 ; Hemphill v. Moody, 62 Ala. 510 (513).

3 Harrison v. Jewell, 2 Dem. 37 ; Trustees v. Kellogg, 16 N. Y. 83 (88) ;
Rogers v. Rogers (S. J. Ch.), 23 Atl. Rep. 125.

4 Bliven v. Seymour, 88 N. Y. 469 (476).

5 Keteltas v. keteltas, 72 N. Y. 312; Clark v. Smith, 49 Md. 106 (117). But
this is in many cases readily rebutted, Kelly v. Reynolds, 39 Mich. 464.

6 2 Jarman on Wills, 842.

" 2 Jarman on Wills, 840. For a certain divergence of statement among the
authorities, see ante, p. 436.

KULES OF CONSTRUCTION. 443

other hand, to refer to such persons or property as might answer
to the description at some later period. Of course the testator may
use terms deiinite enough to show clearly which he means, as for
example by referring to " the house I am now possessed of," or by
designating the beneticiariesby name ; but we are at present looking
for a rule of construction which shall determine the prima facie
meaning where the expression is fairly open to either explanation.
At common law, then, a devise of testator's real property in
general terms, spoke only from the date of the will, as covering
all that testator then had under his control, 1 and even though tes-
tator's clearly expressed wish was to include after acquired lands. 2
But general testamentary gifts of all testator's personal property,
or all the residue thereof, spoke prima facie from the date of
testator's death. 3

Under the statute of 1 Vict. ch. 26, sec. 24, descriptions of real
or personal estate, the subject of gift, refer to and comprise the
property answering to the description at the death of the testator.
In our States, statutes have generally been adopted on this sub-
ject, which vary somewhat in their effect. Sometimes it is pro-
vided that all the land possessed by testator at his death shall
prima facie pass under a general devise of all his land ; and
sometimes, that it shall be construed so to pass ; sometimes it is
provided that after acquired land shall prima facie pass under a
devise of all real estate, if the will in terms denotes an intention
to that effect, while sometimes the law is that a general devise of
real estate -hall pass after acquired land unless an intent appear to
tin' contrary, and still elsewhere the statute merely confers the
power to dispose by will of after acquired real estate. There are
also other distinctions. The general modern rule, however, like
that relating to personal property, is that a general gift of all
testator's real estate carries prima facie all of which he is pos-
ted at death. The general provisions of the respective statutes,
a- construed bj the courts of their jurisdictions, musi be consulted
in each case. 4

1 Hawkins on Wills, II; Jarman on Wills, Chap, x.; sec In re Dickerson
(Conn ), Hi Atl. Rep L94.

I Win- .,ii Exi ."-'U; In r- Dickcrson (Conn >. Hi Ail. Rep. 194.

II iwkinj on \\ ills, 17.

1 For a classification and explanation "f tin- various statutes, see 1 Jarman on

444 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

A further question has often arisen under these statutes con-
cerning their effect on wills executed before their passage. Under
the varying phraseology of the various enactments, the decisions
of different States have led to opposite conclusions. 1

It will be noticed that these statutes refer to the subject matter
of the testamentary provisions, and not to the persons who, by
general description, are to be entitled to receive them. 2 As to
them, the old rule still prevails that in the absence of a contrary
intent shown in the will, gifts to classes, as to "children" or
" descendants," refer to those who may compose the class at the
date of testator's death. 3

It will also be noticed that the rule that a will speaks as of the
date^of testator's death does not refer to the question of its
validity. For unless it is a valid will when made, subsequent
events, other than a formal execution by a competent testator,
cannot render it valid. 4

But even under the new laws, by virtue of principles already
discussed, if testator makes it clear, on the whole will, that he
means to refer only to property possessed by him at the date of
the will, as, for instance, where he makes it clear by the terms
employed, that he refers exclusively to property then owned by
him ; so where he devises " the house now occupied by me,"
or bequeaths " my brown horse," or devises " that freehold which I
purchased of Mr. B.," after acquired houses, horses, or freeholds
cannot pass. 6

10. Testator's heirs can be disinherited only by express devise
or necessary implication. 6

11. In order to deprive an heir or distributee of his share, tes-
tator must by will give the property to some one else. An instru-
ment devoted exclusively to providing that an heir shall take

Wills (Randolph & T.'s Am. Ed.), 326, note 3; Hawkins on Wills (Sword's Am.
Ed.), 18, note; 1 Wms. on Exrs. 220.

1 1 Jarman on Wills (Randolph & T.'s Am. Ed.), 326, notes 3 and 4.

2 1 Jarman on Wills, 337. 3 1 Jarman on Wills, 326, 337.

4 1 Wms. on Exrs. 222; 1 Jarman on Wills (4th London Ed., Randolph &
T.'s Am. Ed.), 337.
6 Hawkins on Wills, 20.
• 2 Jarman on Wills, 840 ; 1 Id. 532 ; Gelston v. Shields, 78 N. T. 275.

RULES OF CONSTRUCTION. 445

nothing, and not containing affirmative dispositions to others, does
not effect the purpose. 1

12. Where there are express provisions, implications, such as
that embodied in the preceding rule, and arising from mere
weight of probability, are nut to be indulged. 2

13. "Where there are express and clear provisions, they are given
effect in spite of inadequate reasons assigned for them, or of
erroneous references to them in other parts of the will. Nor
will they be controlled by the fact that they are inconvenient,
or absurd (if lawful), or that the consequences were probably un-
foreseen. 3

14. Where words occur more than once in a will, they are to be
taken, prima facie, as bearing the same meaning throughout, and
so, if different words are used where, if the intent was the same,
the same word would naturally have been employed, they are
taken, prima facie, to represent a different intent. 4

15. Testator will prima facie be assumed to intend that his
proposed dispositions shall take effect. Therefore, among other
consequences of this rule, the court will give to an expression,
capable of either rendering, a literal or a freer meaning, according
to which would make the gift valid and which invalid. 5

Having thus stated the general rules of construction, attention
may further be again called to the controlling effect of testator's
intention as expressed in the terms of the will taken as a whole.
If this intent cannot operate in full, it is given all practicable
effect. And in giving force to it, as disclosed, the court may,
where the necessity is obvious, transpose, correct, supply, or reject
winds and limitations, in order to bring them into manifest bar-
nioiiv with testator's expressed purposes."

1 2 Jarman on Wills, 840; Coffman v. Coffman, 85 Va. 4."")!).
» Wetter v. Walker, 02 Qa. 1 12 ; 2 Jarman on Wills 841.
8 2 Jarman on Wills, 841.

1 J Jarman on Wills, 842 ; hut see the notes there given.
2 Jarman on Wills, 842.
6 2 Jarman on Wills, *42, 843 ; Hoc v. Vingut, 117 N. Y. 204.

446 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

B. Special Rules.

(a). Provisions concerning land.

1. " Land," or " real estate," prima facie includes reversionary-
interests in land. 1

2. Where testator has contracted to purchase land, and has not
yet received title, a general devise of " land " or " real estate "
prima facie includes his rights under such contract. 2

3. By the old law a general devise to A merely, without some
words of perpetuity, carried only a life estate. 3 But now, by vir-
tue of statutes generally adopted in England and our States, such
a devise prima facie gives a fee. 4

4. By the old law a devise to A for life, " remainder to his
heirs," or " to the heirs of his body," gave A the fee, or the fee
tail, as the case might be. 5 But if testator sufficiently explained
the meaning he attached to the term " heirs of the body," as used
to designate some other class than those understood by the law,
they might take the remainder. 6 This rule has been abolished in
many of our States by statute. 7

5. " Estate," which was sometimes formerly held to mean,
prima facie, personal property, now, prima facie includes both
real and personal property. 8

6. "Rents and profits," by devise, prima facie carries the land
itself. 9

7. " Use and occupation," employed in a devise, does not re-

i Hawkins on Wills, 38.

2 Collison v. Girling, 4 My. & Cr. 63 (75). As to lands which testator has
contracted to sell, see 1 Jarman on Wills, 703 et seq.

3 1 Blackst. Comra. 107, 108.

4 For a list of statutes, see Hawkins on Wills (Swords' Am. ed.), 139.

5 1 Blackst. Comm. 242 ; 2 Jarman on Wills, 332.

6 2 Jarman on Wills, 333-4 ; Hawkins on Wills, 186.

1 For a classification and consideration of these statutes, see Jarman on Wills
(Randolph & TVs Am. Ed.), ch. 36, note 1 ; Hawkins on Wills (Swords' Am.
ed.), 184, note.

8 Hunt v. Hunt, 4 Gray 190 ; Hawkins on Wills. 53 ; Smith v. Smith, 17
Gratt. 268 (276) ; see Birdsall v. Applegate, Spenc. (N. J.) 245.

9 Earl v. Rowe, 35 Me. 414 (419); Smith v.'Dunwoody, 19 Ga. 237 (256);
Mouarque v. Monarque, 80 N. Y. 320 (324).

SPECIAL RULES. 447

quire personal occupation by the devisee himself. He takes title
free from such condition. 1

8. Where testator devises land to A in fee, and in case of his
death under 21 (or other specified age), or without issue then over,
"or" will prima facie be taken to mean " and." a

9. Under the common law, where a testator used the phrase
"death of A without issue," it was held to refer prima facie to
the death of A, and the failure of his issue at any time whatever,
however remote. 3 The same rule applied where the phrase is
" without leaving issue." *

The rule applies, where the phrase is "die without issue," to
both real and personal property. 5 But where the phrase is " die
without leaving issue," it applies only to real property, while in
case of personal property it is held prima facie to mean "die
without leaving any then surviving issue." 6

The meaning of the foregoing rule is expressed in the phrase,
"indefinite failure of issue." By the present English Wills Act
this rule is reversed, and the expressions, " die without issue,"
"die without having issue," "die without leaving issue," and any
other equivalent words, refer, prima facie, to & failure of issue at
the death of the person whose issue are spoken of. And similar
statutes have been very generally, though not universally, adopted
by our States. 7

LO. Estates tail. — There are numerous rules of construction re-
lating to estates tail, which may be found fully stated and <li>-
cussed in the text-books already referred to. A large number of
American statutes have expressly converted estates tail into es-

1 Hawkins on Wills, 1 l!»
Roome v. Phillips, 24 X. Y. 460; Burton v. Conigland, 82 N. C. 99;
Kendig v. Smith, 89 III. 300.

Beauclerk v, Dormer, 2 Atk. 818; Hall v. Chaffee, U X II. 215(219).

; Eawley v. Northampton, 8 Mass. 88; Chetwood v. Winston, 40 N. J. L.
337.

1 Hawkins., n Wills. 206 j Esilton v. Dsilton, 8 M<1 Ch, B6

'■ Qsilton v. Qsilton, 8 Md. Ch. 86; Plinn v. Davis, L8 Ala. 182; Eawley v.
Northampton, 8 Ma

: For a list of these States, with references to their statutes, see Hawkins on
Wills (Swords' Am ed. . 21 1, note l.

448 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

tates in fee simple; many others have abolished estates tail ; still
others have converted them into life estates with remainders in
fee simple ; while in others, similar results have been indirectly
accomplished by other statutes, or have been effected by the de-
cisions of the courts. The subject is not one, therefore, of suffi-
cient practical interest to warrant discussion here. The particular
laws of the several States should be carefully examined. 1

11. Vesting. — This is a subject properly belonging to the gen-
eral Held of real estate law. For a detailed discussion, reference
should be made to Fearne on Contingent Remainders; Wash-
burne on Real Property ; Williams on Real Property ; 1 Jarman
on Wills, Chap, xxv., and other standard treatises. A state-
ment and discussion of the leading principles may be found in
Chaplin on Suspension of the Power of Alienation, §§4-60, and
the authorities there cited.

12. Widow's dower. — The former English rule was that a de-
vise to testators widow, of a part of the lands liable to her dower,
was prima facie held to be a gift in addition to dower. 2 By the
statute of 3 and 4 Will. IV., c. 105, this rule was reversed, and
the gift is taken, prima faoie, to be in lieu of dower. Most of
our States have adopted similar statutes, and in some of them any
provision for the wife in the will is taken, prima facie, to be in
lieu of dower. 3 But sometimes the old rule still holds, and a
widow is not put to her election between dower and the provision
for her in the will, unless the two are strictly inconsistent. 4

(b). Provisions concerning personal property.

1. "Money" does not, prima facie, include promissory notes,
stock, etc. But it does, prima facie, include money on deposit
in bank subject to check. 6

1 For a list of these statutes, with references, see 2 Jarman on Wills, 324
(Randolph & T.'s Am. ed., note 1).

2 Hawkins on Wills, 273.

3 For a summary of these statutes, see 1 Jarman on Wills (Randolph & T.'s
Am. ed.). 458, note 14, Scribner on Dower, Ch. xvi.

4 Konvalinka v. Schlegel, 104 N. Y. 125.

5 Beatty v. Labor, 2 McCart. 110.

SPECIAL RULES. 449

2. "Ready money "prima facie includes cash on deposit in
bank subject to check. 1

3. A gift of " money remaining " after payment of debts,
prima facie carries, in the absenee of a general residuary be-
quest, the entire residuary personal estate."

4. "All my goods," or "goods and chattels," prima facie, car-
ries tne whole personal estate. 3

5. " Legacies "prima facie includes annuities. 4

6. " Debts " prima facie carries money in bank on general de-
posit. 6

7. " All my effects " prima facie carries the entire personal
estate, 6 and does not cover real property. 7

8. "Income," if given without time limit, prima facie carries
the principal. 8

9. Annuity. The creation of a mere annuity, by bequest,^>m?i«
facie is for the life of the annuitant. 9

10. Vesting. — The meaning of this term, as applied to per-
sonal property, is discussed in Hawkins on Wills, 223 et seq. ;
"Williams on Executors (Perkins' Am. Ed., 1325 et seq., notes),
1224 et seq. ; Williams on Personal Property ; 1 Jarman on Wills,
Chap. x.w. , and Chaplin on Suspension of the Power of Alien-
ation, § 388 et seq. In general, it may be here said that where a
legacy is given of which the enjoyment is postponed, the leading
inquiry upon which the question of vesting or not vesting turns,
i-. whether the gift itself is immediate, and only the time of en-
joyment postponed, or is future, depending as a condition prece-
dent apoD the arrival of the beneficiary at a given age, or sur-
viving some other .person, or the like. 10 In other words, if the

1 See Smith v Hindi, '.I'.' \. V. 828.

■' Smith v. Davis, 1 Grant's ('as. (IVnn.) 168; Paul v. Hal], 151 Tex. 10.

3 Sec Stuckcy v. Sturkry, 1 Hill Ch. (S. ('.) 808 (:5()9).

' Smith v. FelloWB, L81 Mass. 20. 5 Cnrr v. Carr, I Mcr. 641 n.

Bawkin OB Wills, 66. : Hawkins or. Wills, 55.

Gulici v. Gulick, 27 N. J. Eq. 498. " Bates v. Barry, 126 Mass. h::.

Chaplin on Su pen i<>a of the 1'uwurof Alienation, % 888 eteeq., ami cases
cited.

450 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

gift, and the direction as to payment, are distinct, the postpone-
ment of payment does not prima facie postpone the vesting of
the gift. 1

And further, if the payment of a gift be postponed, but the
whole income in the meantime is given to the same beneficiary,
prima facie the gift is vested. 2 The same rule applies where the
postponement of payment, or division, is for the convenience of
the estate, or to let in some other interest. 3 As a general propo-
sition, the law favors vesting. 4

11. A legacy of stock, not specifying any particular shares, is
prima facie a general and not a specific legacy. 5 But if the in-
tent appears to give certain particular stock, as " my stock in the
3 per cents," etc., it is specific. 6

Note.

For a full treatment of the force and extent of particular
words of description of property, see Jarman on Wills, Chap. 22,
23, and 24 ; Hawkins on Wills, Chap. 5 ; Wms. on Exrs., 1272
et seq.

Terms descriptive of beneficiaries, Hawkins on Wills, Chap. 8
and 15 ; Jarman on Wills, Chap. 29, 30, and 31 ; Williams on
Executors, 1089 et seq.

(c). Lapsed devises and legacies.

At the common law, where a gift of real or personal property

was made by will, and the devisee or legatee died during the life-

time of the testator, the gift failed, or, as the saying was,

" lapsed." 7 A declaration by testator in the will that such should

1 Hawkins on Wills, 236; Kimball v. Crocker, 53 Me. 267; Teele v. Hath-
away, 129 Mass. 164; Bushnell v. Carpenter, 92 N. Y. 270; Cox v. M'Kinney,

32 Ala. 462.

s Newberry v. Hinman, 49 Conn. 130; Provenchere's Appeal, 67 Penn. St.
466; Everett v. Mount, 22 Ga. 328.

3 Kimball v. Tilton, 118 Mass. 311; Robert v. Corning, 89 N. Y. 225; Tay-
loe v. Mosher, 29 Md. 443.

4 Tayloe v. Mosher, 29 Md. 443 (457).

5 Pearce v. Billings, 10 R. I. 102. For the meaning of these terms, see
Definitions, post.

6 Brainard v. Cowdrey, 16 Conn. 1; Blackstone v. Blackstone, 3 Watts 335.

7 A general review of the law on the subject of lapse will be found in 1 Jar-
man on Wills, Ch. XI.

SPECIAL RULES. 451

not be the result, did not change the rule, unless he provided for
a gift over in ease of death. And the question of whether, in
given eases, sufficient provision has been made to prevent the
failure of the gift, or rather to carry it out in favor of the first
donee's heirs, or representatives as substituted beneficiaries, has
given field for many minor rules of construction. If the gift were
originally to joint tenants, the death of one would, on familiar
grounds, cause no lapse; but if to tenants in common, upon the
death of one there was of course no survivorship as to his share.
So also if the gift were to a class, to be ascertained at testator's
death or later, the death of any member of the class, during tes-
tator's life, would not, of course, cause any lapse.

Where land was devised subject to a money charge, the death
of the devisee before testator did not vitiate the charge. 1

The question of the destination, under such a testamentary pro-
vision, of the legacy thus charged, in ease it is the legatee who
dies before testator, is said by Jarman not to have been settled by
authority, but he discusses the subject at length. 2

By the modern English Statute of Wills, the destination of
lapsed devises has been provided for, as will be stated hereafter
under subdivision (d). The same rule has been adopted in some
of our State-/' It also provides in substance that where a bequest
or devise — for any estate or interest not determinable at or before
the death of the donee — shall be given to a child or other issue of
the testator, and such child or issue shall die in testator's life-
time, leaving i>sue, and any such latter issue shall be living at
testator's death, the devise or bequest shall prima facie not lapse,
but shall take effect as if the death had occurred immediately
after that of testator. This provision has been followed in the
Btatntes of many of our State.-.' And in some instances these
statute- expressly prevent lapse in all cases whatever.'

('/). /,'< siduanj i/> ris,.s and b<que8t8.

1. Devises. By the early law a general residuary devise did
not ci,\-,-y a specific devise which lapsed. Hut this rule has now

1 Wigg v. Wigg, 1 Atk. 882 . <>kr v Smith, 1 Ves. Sr. 185.
• 1 Jarman on V\ ill. 847.

Randolph & T.'a note B, '<> I Jarman <<n Wills, 851,
1 Wot list "f statutes, Bee Randolph & TVs note 9, to 1 Jarman on Wills, 852.
5 Hawkins on Wills, 88 Swords' Am note 2.

452 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

been reversed in England, by 1 Yict., ch. 26. In this country
the rule varies in the several jurisdictions. 1

2. Bequests. — A general residuary bequest covers lapsed and
void legacies."

(e). Tenancy.

1. Where there was a devise or bequest to several, as " to A,
B, and C," or to a class, prima facie they took, under the earlier
law, as joint tenants, and not as tenants in common. 3 In some of
our States this rule has been reversed by statute, and such pro-
visions are prima facie taken to create a tenancy in common.
Some of these statutes apply only to devises, some to both devises
and bequests, and in one (New York), the new statutory rule,
which does not in terms cover all bequests, has been given a wide
scope, and is apparently applied by analogy to all testamentary
dispositions of personal property. 4

(f). Provisions employing terms of relationship.

The following prima facie meanings are given to the following
terms :

1. " Children " means legitimate children. It also means chil-
dren as opposed to grandchildren. The same principles are ap-
plied to all terms of relationship. 5

2. "Brothers" and "sisters" include half-brothers and sisters. 6

3. " Issue " prima facie includes all descendants. But if refer-
ence is also made to their " parent," the term means " children." 7

1 Hawkins on Wills, 44, 45; and for the American statutes, Jarman on
Wills (Randolph and T.'s Am. Ed.), vol. 3, p. 798, note 26.

2 Drew v. Wakefield, 54 Me. 291 (296) ; Prescott v. Prescott, 3 Met. 141.
For a general discussion of residuary bequests and lapsed legacies, see Wms.
on Exrs. 1454 et seq.; Randolph and T.'s Am. Ed. of Jarman on Wills, vol. 3,
p. 798 et ssq. ; Hawkins on Wills, Ch. 10.

3 For explanation of these terms, see 2 Blackst. Coram., Ch. xii. ; and for
the rule, Hawkins on Wills, Chap. x. ; and for a general discussion, Jarman on
Wills, Ch. 32.

4 For a classification of the various American statutes, see Hawkins on Wills
(Swords' Am. ed.), Ill, note. For the scope of the New York rule, see Chaplin
on Suspension of the Power of Alienation, § 187 et seq.

5 Hughes v. Knowlton, 37 Conn. 429 ; Appel v. Byers, 98 Penn. St. 479.
For qualifications and exceptions to the rule see Hawkins on Wills, 80.

6 Hawkins on Wills, 86. ' Id. 87.

SPECIAL RULES.' 453

4. The "family" of a person, prima facie refer,* to his chil-
dren only.'

5. " Relations," prima facie refers only to those who would be
entitled under the local Statute of Distribution. 3

6. "Representatives," prima facie refers to executors or ad-
ministrators, and not to relatives. 3

7. " Heirs." In our States the general rule is that if personal
property is given to " heirs," the word will prima facie be taken
to mean those who would take under the Statute of Distribution. 4
"While in case of devises of real property the term is of course
used in its ordinary sense.

8. k ' Xf.xt of kin," applying to devisees or legatees, refers,
prima facie, not to those entitled to take under the Statute of
Distribution, but to the nearest blood-relations, in equal degree,
of the person whose " next of kin " they are. 5 But "next of kin
according to the statute," refers to the persons entitled under the
local Statute of Distribution. 8 In both cases, the phrase refers to
those who are next of kin at the time of death of the person whose
next of kin they are. 7

9. AVhere testator provides a gift in general for children^
either his own or those of another, and in stating the number of
them names a number less than there really are at the date of the
will, prima facie this is an error, and all then in being take. 8

The rule is the same where the gift is to brothers, sisters, grand-
children, or servants. 9

10. "Where testator gives property to children, either his own

1 Heck v. Clippinger, 5 Pcnn. St. 385.

1 Varrcll v. Wendell, 30 N. H. 431 (435) ; McNeiledge v. Barclay, 11 S. & R.
in:;.
3 Halsey v. Paterson, :'>7 N. .1. Eq. 445".
Ferguson v. Stc\v;irt, 14 Ohio ltd; Houghton v. Kendall, 7 All. 72 (76);
Nelson v. Blue, 63 N. 0, 659 (660).

» 2Jannan on Wills (6th Eng. ed. ; Randolph & TVs Am. ed.)107; Red-
mond v. Burroughs, <;:; X. C, 242(246).

Hawkins on Wills, 97. : Brenl v. Washington, is (}ratt. 526(5:55).

I lie v. Irvine, 21 IVnn. St. 812 ; Thompson v. Young, 25 Md. 450 (45«J);
Cleveland v. (arson, 37 N J Eq. 37H.
• Hawkins on Wills, 62, 68, citing English cases.

4f>4 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

or those of another, this mere term prima facie means those in
bein£ at the death of the testator. 1

The same rule applies to grandchildren, issue, brothers, nephews,
and cousins. 3

It does not apply where specific persons are pointed out. 3 Nor
where the number is stated, either correctly or incorrectly/

11. Where testator gives a corpus generally to children as a
class, whether his own or those of another, and the gift is future
and not present, there the interest therein vests, according to its
nature, but subject to open and let in future-born members of the
class until the time for distribution. 6

The rule applies to grandchildren, issue, brothers, nephews,
and cousins. 6

12. Where, however, each member of the class of children is
to receive his share at a different time, as, upon reaching majority,
or upon marriage, here the period for opening and letting in new
members ends when the first of the class becomes entitled to his
share. 7

13. Children in ventre sa mere are regarded as in existence, to
satisfy the terms of a gift to children " born" or "living" at a
given time. 8

14. Where testator makes a devise or bequest to the chil-
dren of two or more persons, 9 or one or more persons and the

1 Downing v. Marshall, 23 N. Y. 373 ; Shotts v. Poe, 47 Md. 513 ; Wood
v. McGuire, 15 Ga. 202.

2 Hawkins on Wills, 68, citing English cases.

3 Hawkins on Wills, 69.

4 See preceding rule. For a discussion of further qualifications, or distinc-
tions, under this rule, see Hawkins on Wills, 69 el seq.

5 Ward v. Tomkins, 30 N. J. Eq. 3 ; Barnum v. Barnum, 42 Md. 251 ;
Moore v. Dimond, 5 R. I. 121 (129).

6 Hawkins on Wills, 72.

• Tucker v. Bishop, 16 N. Y. 404 ; Hubbard v. Lloyd, 6 Cush. 522.

8 Hall v. Hancock, 15 Pick. 255 (258) ; Groce v. Rittenberry, 14 Ga.
232.

9 Farmer v. Kimball, 46 N. H. 469 ; Hill v. Bowers, 120 Mass. 135 ; Ver-
planck's Will, 91 N. Y. 439 ; Walters v. Crutcher, 15 B. Monr. 10. For an
illustration of a contrary result due to contrary intent, see Vincent v. New-
house, 83 N. Y. 505.

SPECIAL RULES. 455

children of another or others, 1 as tenants in common, here the
heueHcianes prima facie take per capita and not per stirpes.

15. Where testator devises land to B, on failure of the heirs
of A, and B is himself capable of being an heir of A, the word
heirs will be taken to mean heirs of tJie body, in order to give
effect to the devise to B. 2

(g). Execution of Powers.

1. By the earlier law, where the testator was the donee of a
general power over property, which he might exercise by will,
general devises and bequests by him did not, prima facie, apply
to the property over which he had the power. 3 But now by the
statute of 1 Vict., ch. 26, §27, this rule is reversed, md pri?)id
facie a general testamentary disposition of property sufficient in
terms to cover that in question, is deemed to be an execution of
the power unless a contrary intent appears. And similar statutes
have been adopted in many of our States/

2. "Where testator gives real or personal property, and desig-
nates either a class, or a number of beneficiaries, leaving it to a
designated person to choose the {particular ones from the class or
number who shall receive the gift, or to designate the proportions
in which they shall receive it, here, if there is in fact no exercise
of the power, all the members of the class, or all the persons
named, take the gift in equal -hares. 6

(//). Trusts.
1. A devise t<> a trustee on an active trust to pay the rents and
profits to a beneficiary, gives the trustee the legal title/' But if

Brittain \ I ai >n, 46 Md. 186; Macknel v. Macknet, 24 N. J. Eq. 277.
Baidy v. Wilcox, 58 Md. 180; Goodell v. Bibbard, 32 Mich. 47; Williams
v McCall, 12 Conn. !

'Burleigh v. Clough, 52 N. II. 267; Johnson v. Btanton, 30 Conn. 303;
Mory v. Mitchell, 18 Md. 241.

l Poi n list oi these States, see 2 Jannan on Wills (Randolph A: T.'s Am.
Ed.), 862, uote 2€ i X. V. R. B. 737, §126; Bangs v. Smith, 98 Mass.
878

Varrell v. Wendell, 20 N ll. 181; Hull v. Bull, 8 Conn. 47. Porageneral
discussion of the execution of powers by will, Bee Hawkins on Wills, Ch. 2; 1
Jannan on w Ills, 676, and note 5 Randolph & T.'s Am. Ed.

3parhawk v. Cloon, I .268; Ware v. Richardson, 8 Md. 508.

456 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

the trust is passive, and directs the trustee to permit the benefi-
ciary to receive the rents and profits, here the beneficiary takes
the legal title.' The laws concerning uses and trusts are not uni-
form throughout our States, and this rule varies accordingly.
But in New York, where the statutes have very greatly changed
the law of trusts, the same substantial distinction exists. For
a trust to receive and apply, or pay over, the rents and profits,
gives the trustee the legal title. While trusts not permitted,
where the general result aimed at is not unlawful, vest the title
in the proposed beneficiary, subject, in appropriate cases, to a
power in the proposed trustee. 2

2. A trustee takes by devise only the title necessary for the
performance of the trust. 3

3. Precatory words. — Where a testator makes a devise or be-
quest, and expresses a desire concerning the particular application
of it, prima facie this creates an obligatory trust in some States, 4
but in other States the mere expression of a desire is prima facie
merely a wish expressed to the beneficiary, and not obligatory.'

The following illustrations of precatory words are given by
Hawkins : 6 I recommend ; It is my dying request ; It is my ab-
solute desire; I entreat; I advise; In full confidence that, etc.;
Trusting that, etc. ; Not doubting that, etc. ; Well knowing that,
etc. ; Hoping that, etc. All these may be controlled by the con-
text, as, also, may even the express words " in trust." ' Thus,
even where precatory words are prima facie obligatory, a gift to
A, " not doubting but that she will dispose of what shall be left
at her death to our two grandchildren," would be held a mere
suggestion. 8

4. In jurisdictions where a trustee can in fact devise the legal

1 Hawkins on Wills, 140.

2 Chaplin on the Suspension of the Power of Alienation, § 250, § 145.

3 Hawkins on Wills, 143.

4 For instance, Cole v. Littlefield, 35 Me. 445; Warner v. Bates, 98 Mass.
274; Ingram v. Fraley, 29 Ga. 553.

5 For instance, Gilbert v. Chapin, 19 Conn. 346; Batchelor v. Macon, 69 N. C.
545; Burt v. Herron, 66 Penn. St. 400 (402) ; Lawrence v. Cooke, 104 K Y.
632 ; Campbell v. Beaumont, 91 N. Y. 464.

8 Hawkins on Wills, 160 et seq. ' Freedley's Appeal, 60 Penn. St. 344.

8 Wynne v. Hawkins, 1 Bro. C. C. 179.

SPECIAL RULES. 4,)7

title to property held by him in trust, a general devise of "land"
or "real estate," prima facie, includes land so held in trust. 1

(i). Substitution and Survivorship.

1. In England, the rule is that where there is a gift of person-
alty, with words of survivorship, the latter refer prima, facie to
the period of payment or distribution, and not to that of testa-
tor's death. 2 The true rule as applied to realty is in doubt. 3

In this country the decisions on the rule itself are conflicting. 4

2. "Where there is a gift of a legacy or share to a legatee, and
over in case of his death under certain circumstances, here, if the
eveut happens during testator's life, the gift over takes effect. 5

3. In a bequest to one, and over, in case of his death, to an-
other, the reference to the death of the first named means prima
facie his death before the time for payment or distribution. 6

4. Where there is a gift to several legatees or devisees, and on
certain contingencies the respective shares are to accrue to the
other takers, here, prima facie, each given share can go over but
once, and thereupon becomes freed from the provision concerning
accruer. 7

(j). Equitable Conversion.

In determining whether a given scheme of disposition deals
with real or personal property, the mere fact of the actual form
it wears at testator's death is not decisive. It is here that the
doctrine of equitable conversion becomes important. 8

Where there is an imperative direction to sell, here equity, on
the principle of regarding that as done which ought to be done,

1 Hawkins on Wills, :!•">; as to the remedy of the cestui que trust, see 1 Jarnian
on Wills, 698

Hawkins on Will-. 861. 3 Id. 262.

4 Hill v. Bank, I". N II 270; Bughea v. Bughes, 12 B. Mon. 115; Martin v.
Kirby, 11 Gratl 67; Ross v. Drake, 87 Penn. St. 878.
Goddard v. May, LOO Mass. W8.

' Bima v. Conger, 80 Miss. 284; Briggs v. Shaw, All 517.

1 Everitt v. Everitt, 20 \. V. 89; Butchinson's Appeal, :;i Conn. 800; Chap-
lin on Suspension of the Power of Alienation, § 184.

• Aeummarj of the leading principles concerning Equitable Conversion may
be found in Chaplin on Ion of the Power of Alienation, §§ 470-478.

458 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

considers the conversion as effected at the time when a sale ought
to take place, whether the land is really sold then or not.

Although, consistently with equitable conversion, a discretion
may be reposed in the person directed to sell, concerning the
time when the sale shall be made, yet a mere discretionary power
of sale does not effect equitable conversion. A direction to sell
may be implied from the instrument, and need not be expressed
in so many words. It may be gathered, from the entire instru-
ment.

The accompanying rules of construction upon this subject are
to the effect that provisions calling peremptorily for a sale either
at a fixed time, or at a time to be determined by the person hav-
ing the power of sale, shall prima facie effect a conversion unless
it appear that such was not in reality the intent of testator in
using the given expressions, or that it was his intent only for
certain purposes which are shown to have failed.

EXTRINSIC EVIDENCE ON CONSTRUCTION.

We have just seen that there are certain principles of a
sweeping character, in the light of which the courts set forth in
their search for testator's intention. To this class, for example,
belongs the rule that in looking for the meaning of a given phrase
all parts of the entire will should be considered together. Such
rules as properly belong to this class are not subject to the qual-
ification " unless a contrary intent appear." It is not their office
to attribute a given meaning to a given phrase, but merely to
point out, so to speak, the spirit in which the search for the intent
should be pursued. We have also noticed that there are other
rules, comprising some of those given under the head of " General
Principles" and all those under the head of "Special Rules,"
which point out the prima facie meaning to be attributed either
to broad classes of provisions, if they are general, or, if they are
special, to particular terms, phrases, and provisions. Now all
these rules which attribute a prima facie meaning, are intended
merely as so many convenient means of reaching testator's intent,
and if, in accordance with legal principles, the intent can be shown
to be contrary to that suggested by the rule, the rule, of course,
vields.

EXTRINSIC EVIDENCE ON CONSTRUCTION. 459

Now the evidence that might have a logical bearing on such
questions might be either such as is offered by the will itself, or
such as is brought in from outside. The former, called intrinsic
evidence, is always admissible. The admissibility of the latter,
called extrinsic evidence, is now to be considered.

The first, and sweeping rule on this point, is, that (subject
to certain exceptions) the provisions of every will must be con-
strued in the light of the evidence supplied on the face of the will
itself only. This is an obvious and natural corollary of the gen-
eral principle embodied in the statutes of wills by which, for the
sake of safety, precision, and certainty, all wills, — except nuncu-
pative wills, — are required to be put in writmg by the testator.
It is clear that if free permission should be given to offer outside
evidence of what testator really meant to say, in order to qualify,
contradict, alter, or supplement what he in fact has said, the ad-
vantages derived from the requirement that he must put his
wishes in writing, in a duly executed instrument, would be to a
great extent lost.

Extrinsic evidence is, however, perforce admitted for certain
purposes and to some extent. As there are, to begin with, certain
classes of such evidence, the admissibility of which is too obvious
to call for extended comment, it will be well to state them first
before taking up the more difficult cases.

First, then, if the characters in which a will is written are diffi-
cult to decipher, or the language is foreign, extrinsic evidence for
such purposes is of course admissible. 1 So if testator, though not
a foreigner employing a foreign language, lived in a district where
certain terms employed in the will were, as a matter of general
local usage, _ivn a meaning different from their ordinary sense
at huge, the fact thatsuch usage did exist may be shown by extrin-
evidence, unless the will indicate- that testator did use them
in their ordinary sense." So, further, if testator has employed
peculiar names, <>r nicknames, U.v persons or thing-, extrinsic evi-

: Wifcra n on Wills Prop. IV.; 1 Jarman <>n Wilts, 421; Caulfleld v. Bulli-
v:ui. 85 N V. 153.

I Jarman on Wills (lih London ed., Randolph & TVs Am. ed.), 121. And
technical terms may ;ii-<> be explained, or, bo to speak, translated. 2 Parsons
on I ontr Mi , "iil.

460 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

dence may be offered to identify the person or thing intended. 1
And so where testator mentions specific property or persons by
descriptive terms, as, " the house I live in," a or " the farm I bought
from A," or " my farm called Trogue's Farm," 3 extrinsic evidence
is of course admissible to show what house he did then live in,
what farm he did buy from A, and what farm was called Trogue's
Farm. And, in general, extrinsic evidence of all material facts re-
lating to the identity of the person claiming or property claimed
may be introduced for the purpose of identification. 4

But although it is thus allowable to offer extrinsic evidence of
facts, to identify the person or thing described in the will, such
evidence is not admissible to show that testator, in using a term
applicable to existing persons or things, meant it to also cover
something else not in fact included in the phrase used. Thus,
though, as in the instance just given, extrinsic evidence may
be admitted to show what farm was " called Trogue's," or what
estate was meant by the description " my estate called Ash-
ford Hall," 5 yet where testator devised his " estate of Ashton, in
the county of Devon," extrinsic evidence that testator was accus-
tomed to include under the name of the " Ashton estate," prop-
erty in contiguous parishes other than Ashton, was excluded, the
word u of " being taken in the sense of " in," or " at." 8 If he had
said " my so-called Ashton estate," it might have been shown that
the estate " so called " included property not in Ashton. 7

Having thus disposed of these obvious classes of admissible ex-
trinsic evidence, we come now to cases where words, phrases, or
provisions are found in the will, the meaning of which is disputed
on account of different views of testator's intent in using them.
In proceeding to consider the admissibility of extrinsic evidence
in such cases, we must first notice that if the terms used are sen-
sible with reference to extrinsic circumstances, when taken in their

1 Per Lord Abinger, in Hiscocks v. Hiscocks, 5 M. & W. 368.
5 Doe d. Clements v. Collins, 2 T. R. 498.

3 Goodtitle v. Southern, 1 M. & Sel. 299.

4 Wigram on Wills, Prop. V. ; see Hiscocks v. Hiscocks, 5 M. & W. 368.

5 Ricketts v. Turquand, 1 H. L. C. 472.

6 Doe d. Chichester v. Oxenden, 3 Taunt. 147.

7 Per Lord Cottenham, in Ricketts v. Turquand, 1 H. L. C. 472 (490).

EXTRINSIC EVIDENCE ON CONSTRUCTION. 461

primary and appropriate sense, and in the light of the facts proved,
no other meaning can be imposed on them by outside evidence. 1

Passing on from these preliminary considerations, we find that
the extrinsic evidence, the admissibility of which in construction
we are considering, is divided into two great classes. And much
light will be thrown on the subject if we here carefully notice the
distinction between them.

To this end then, we will suppose that in construing a given
will a dispute has arisen concerning the proper meaning to be at-
tributed to one of its words, phrases, or provisions. The rule of
construction applicable to the point, here steps in and says that
prima facie it shall receive a specified meaning which we will call
x. It is contended, however, that in reality it should be given an-
other meaning, which we will call y. To show the soundness of
this latter view, it is proposed, in the absence of satisfactory in-
trinsic evidence, to offer extrinsic evidence of two kinds. First,
it is proposed to prove what were the actual facts which have a
logical bearing on the subject and in the light of which testator
executed his will, — facts, for instance, such as the number of tes-
tator's children ; the fact that all his children were illegitimate ; the
fact that he had no nephews of his own, but that his wife had
nephews, etc., according to the nature of the point in dispute.
This is one of the two classes of extrinsic evidence, and the pur-
pose of it is to lay a foundation of facts from which the mind of
the judge will logically draw the conclusion that the testator must
Jmr, intended the disputed term in the sense designated y. It
is also proposed to show by direct extrinsic evidence exactly what
his intent was, —as, for example, by testimony that at the time of
executing the will he declared that he used this term in the sense
designated y.

The statement of these two classes of evidence shows the dis-
tinction between them. One produces underlying facts tending
to indicate as a matter of reasoning from the existence of these
facts that testator must have meant SO-and-so ; the other aims
directly at the point of intent, and is to the elTect that in reality

hie intent wsa so-and-so.
The former class of extrinsic evidence of facts is admissible in

1 Wigram <m WiiN, Prop. II.

462 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

several cases; the latter only in one. We will first consider the
cases where the underlying facts may be shown, and will then con-
sider the one case in which the intent itself may be shown by di-
rect extrinsic evidence.

(a). Extrinsic evidence of underlying facts.

If, as we have seen, a term, taken in its primary and natural
sense, is applicable, with accuracy sufficient on reasonable grounds
to satisfy the mind, in reference to an existing object or subject,
it is not allowable to introduce extrinsic evidence to show that
testator did not mean to use the term in its primary sense. 1 But
where there is no object or subject thus covered by the natural and
primary meaning of the term employed, here evidence may be ad-
mitted to show that interpreting the term in a popular or less appro-
priate sense there is an object or subject answering thereto, with suf-
ficient legal and reasonable certainty to satisfy the mind of the judge. 2
Thus, if testator by will gives property to the " children " of a de-
ceased person, here, if there are legitimate children of that person,
extrinsic evidence is not admissible to show that in fact he also
had illegitimate children. But if there were no legitimate chil-

1 Wieram on Wills, Prop. II. ; Appel v. Byers, 98 Penn St. 479. The full
force of this rule seemed somewhat shaken by the decision in Grant v. Grant,
L. R. 5 0. P. (Exch.) 727, where testator devised property to "my nephew Jo-
seph Grant, "and, though he had such a nephew of his own, extrinsic evidence was
admitted to show the fact that a nephew of testator's wife was also named Joseph
Grant, and had been brought up by testator, etc., and that testator was igno-
rant of the existence of his own nephew. The court go, however, on the
ground that " nephew" was a word properly— though not with equal strictness
—applicable to each, and that therefore there was an equivocation—^ hereafter
explained. Their view was that to all intents, and according to usual practice, it
might be said that the term was applicable with substantial equality to both
persons (see In re Parker, L. R. 17 Chan. D. 265). But in Wells v. Wells,
L. R. 18 Eq. 504(1874), Jessel, M. R., disapproved and declined to follow
Grant v. Grant, and held that under a bequest to "all my nephews and
nieces," there being such, no extrinsic evidence was admissible to show that a
niece of testatrix's husband was included (even though the will itself had else-
where named her as "my niece.") The court in Merrill v. Morton, L. R. 17
Chan. Div. 382 (1881), took the same course ; compare Cloak v. Hammond,
L. R. 34 Chan. D. 255.

9 Wigram on Wills, Prop. III.

EXTRINSIC EVIDENCE ON CONSTRUCTION. 463

dren answering the description, extrinsic evidence is admissible to
show that he had illegitimate children ; so, also, in case of a gift to
testator's ''nephews,''' when in fact he had none and never could
have any (as, if his father and mother were dead, and he had
no brother or sister), here extrinsic evidence is admissible to
show that there were nephews of testator's wife. 1 This evidence
is only admitted to show the facts, and not to show directly what
testator's intent was." The conclusion as to the intent follows, in
such case, as a logical deduction from the facts shown. 3

The foregoing rule does not of course apply where the term used
in the will refers to a state of facts existing not at the date of execu-
tion, bur at the date of testator's death, or any time succeeding the
execution. For if the term was used with this latter view, obviously
the fact that at the date of execution there was no subject or ob-
ject, corresponding to its strict meaning, would not logically point
to the conclusion that testator must have used the word in a popular
or less appropriate sense in reference to any other actually existing
subject or object. For testator, though knowing that there was
then no subject or object such as he named, may have contem-
plated the possible or perhaps probable existence thereof at the
future time in view. Thus in the case just mentioned of a gift to
"children," if the parent of the " children " had been living, tes-
tator, though knowing that he had only illegitimate children, may
have contemplated only the contingency of his yet having legiti-
mate children, and have intended to provide for such if they
should come into being.

It should here further be added that as, in a class of cases
already alluded to, the fact that there is no object or subject an-
swering to the primary meaning of the term employed, will open
the door to proof thai there /.v an object or subject which the term
doe- cover it' taken in a popular or less appropriate sense; so also
we iiud that where the obstacle in the wav of giving a term its
Btricl and primary meaning arises not from the lack of an object

or subject answering to it when so interpreted, but arises instead

from the context of the will, here also the door is opened for evi

dence of facte showing that the term can take on a secondary or

1 Bherratl v. Mountford, L. R. h Ch. 938. Bee oote -'. ante, page 462.
i Jarmao on Wills, 424, note </). l Jarman on Wills, 428.

404 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

more popular meaning which will render it reasonable, give it ef-
fect, and make it harmonious with the context. 1

In the cases thus far considered, though evidence of the first
class is admitted to show the facts, evidence of the second class to
show the intent directly is not admitted.

Before proceeding to consider the admissibility of the second
class of extrinsic evidence, attention should here be called to the
fact that inasmuch, as we have just seen, the courts may, wherever
there is no object or subject answering to the term in the will, in
its primary sense, look at the actual underlying facts, to see
whether there is any object or subject answering to the term in
any other allowable sense, it therefore follows from this as a nec-
essary corollary that in all cases the court may receive evidence of
the underlying facts in order to ascertain whether, in the given
cases, there are or are not objects or subjects answering to the pri-
mary and appropriate meaning of the term in question." If there
are, the inquiry ceases, and no further evidence is admissible. If
there are not, further evidence of the facts, bearing on the ques-
tion whether there are other objects or subjects answering to the
term in a less appropriate but allowable sense is admissible. If
this evidence shows that such do exist, the judge draws the logi-
cal conclusion from these facts as to testator's intent. But no di-
rect evidence of the intent itself is admitted, and if, after all the
facts have been shown, the term in question is, as the saying is,
still insensible, it will be void for uncertainty. 3

(b). Extrinsic direct evidence of intent.

Coming now to another class of cases, it will be seen that in the
case of any term used by testator to refer to persons or property,
it may turn out that although the term employed seems plain
enough on its face, there aie in fact two, or perhaps more, persons
or things answering to it with precision. In all such cases, both of the
classes of extrinsic evidence already considered may have a logical
bearing — first, evidence to show that there really are two or more
objects or subjects equally answering to the description ; * and sec-

! 1 Jarman on Wills (4th Eng. ed.), 419; Doe d. Gore v. Langton, 2 B. & A.
(680), 693.

3 Wigram on Wills, Prop. V. 3 Wigram on Wills (O'Hara's ed.), 175.

4 Wigram on Wills, Prop. V.

EXTRINSIC EVIDENCE ON CONSTRUCTION. . 465

ond, evidence to show which of these was meant by the testator. 1 As
to the first of these classes, it is always admissible in such cases, as
well as in those we have already considered. But the second class,
aimed at directly showing testator's intent, though excluded in the
cases already considered, is here admitted. These cases now under
consideration constitute what are known as equivocations. That is
to say, the term employed is equally applicable to each of several
persons or things. These equivocations comprise one branch of
what, in a well-known but often misunderstood and misapplied
phrase, are known as latent a/mhiguities. A latent ambiguity exists
where a term used appears, on the face of the will, to be clear and free
from any ambiguity at all, and that is only shown to involve an am-
biguity by extrinsic evidence showing facts that render two or more
meanings equally possible. Thus if a testator devises " my manor of
Dale," no ambiguity appears on the face of the will. But if it is
shown by extrinsic evidence of the facts that he really had two
manors, one of North Dale, and one of South Dale, it is seen that
the term employed contained within it a hidden, or latent, ambi-
guity.

A patent ambiguity is one that is shown to be such on the very
face of the will, by the statements there made, as, for example, a
bequest of "some of my best linen," 2 or a devise to " the best men
of the White Towers." Here the ambiguity or uncertainty shows
on the face of the instrument, and consists in a failure on testator's
part to decide just what objects or subjects he did mean.

Now it has often been said that in cases of patent ambiguity no
extrinsic evidence of intent is admissible, while it is admissible
in all cases of latent ambiguity. This statement of the rule is, to
say the least, misleading, and, as often understood, erroneous. For
the term latent ambiguity is a broad one covering not only <<juivo-
cations (which have just been described, and which constitute one
kind of latent ambiguity), but also other cases. Now extrinsic evi-
dence of 'ml< nt is admissible only in that class of latent ambiguities
known as "equivocations." 1 In this class, the extrinsic evidence

1 Wigram en Will-, Prop. VII.; 1 Greenl. en Evidence, § '-289.
« Peck v. Balaey, 2 I'. Wms. :!87.

JTeai Book, 49 Edw. :; ; cited in Winter v. Perratt, '■> Clark & F. 688.
* HiscockB v Bfecocks, "> M. A- W. :;ii;; ; Due .1. Lord v. Needs, 2 M. & W.
12!) ; Miller v. Travers, 8 Bing, 211.
30

466 CONSTRUCTION, PRESUMPTIONS, AND RULES OF LAW.

may be of any sort which, upon general principles, is relevant and
material on the question of testator's intent, including testator's
declarations on the subject. 1 In order to raise a true equivocation,
it is not necessary that the description should be in all respects ac-
curate and perfect." It is sufficient if it applies to each of the sev-
eral persons or things indifferently, and to the particular person or
thing, to which the judge applies it, with such legal certainty as to
satisfy his mind that such is the person or thing meant. 3

To sum up, then, extrinsic evidence may be given to translate,
or decipher ; or to show the facts relating to the person claiming,
or the thing claimed, under the will. Next, where there is any
ambiguity, that is, any double meaning, it is either patent or latent.
If patent, the underlying facts may be shown in order to put the
judge, so to speak, into the atmosphere surrounding the testator.
If, in the light of these facts, the term used is sensible, it must be
applied without any direct evidence of intent ; if insensible, the
provision must fail. If latent, then in all cases the underlying
facts may here also be shown. If, in their light, the meaning is
sufficiently clear to satisfy the mind of the judge, it must be applied ;
if still insensible, the provision fails. Thus far the rules concern-
ing latent and patent ambiguities are alike. In the one particular
class of latent ambiguities known as equivocations, already described,
further extrinsic direct evidence of intent is admitted.

Thus it appears that extrinsic evidence of the facts is admitted
in all cases of both latent and patent ambiguities, while extrinsic
direct evidence of intent is admissible in only one class of latent
ambiguities. And this is all there is in the rule concerning latent
and patent ambiguities. 4

There is some variance in the degree of strictness with which
extrinsic evidence of intent is excluded in the various American
courts, but the general tendencv is toward a closer adherence to
the established rules.

1 Wigram on Wills, § 187. 2 Cloak v. Hammond, L. R. 34 Cn. D. 255.

3 Wigram on Wills, § 186.

4 See a valuable note on the subject in 2 Parsons on Contracts, 557 (e).

DEFINITIONS.

In addition to the explanations of numerous terms already
made in the foregoing pages, the following definitions are here
given :

Bequi st, a testamentary disposition of personal property. This
word, and its verb " bequeath," are sometimes used by unskilled
testators as synonymous with ''devise," and in such cases the
intent governs.

1>, m%e, a testamentary disposition of real property. The word
is sometimes used by unskilled testators as synonymous with
"bequest," and in such cases the intent governs.

Executory devise. For definition, and distinction between
them and remainders, see 2 Gladstone's Commentaries, 172, 173.

Gift Causa Mortis. Such a gift must (1) be made in actual
expectation of impending death, and (2) must be accompanied by
delivery, and (3) to perfect it the donor's death must in fact
ensue, and (4) it must be accepted by the donee. 1

Holographic WUl. In its U6ual sense, this word refers merely
to a will which is entirely in testator's own handwriting.

Legacy, a testamentary gift, more properly of personal prop-
erty, but very frequently employed in popular usage to designate
any te tamentary gift whether of realty or personalty. A distinc-
tion is to be noticed between three classes of legacies, — specific,
demonstrative, and general. A specific legacy applies to certain
specified property, as, " my brown horse," or lk my gold watch."
A demonstrativi legacy applies to a certain amount o1 money to
be paid from a particular fund/' A general legacy applies to

Basket v. Ha sell, 17 Otto 602 and the fool note thereto In the Lawyers'
Coop Ed.

Wallace v. Wallace, 28 V It I i«» (164).
•Giddlng v. S< ward, L6 N. Y 365

(4C7)

4C8 DEFINITIONS.

money, or other personal property in general, without designating
a specific article or particular fund.'

If it turns out that the assets are deficient, a specific legacy will
not thereby suffer abatement with the general legacies. 2 In the
case of ademption (that is, wliere the subject of the bequest is
altered or parted with or where testator has provided for the
purpose of the legacy by other means, 3 ) or where the subject of
gift is in fact inadequate to fulfil the term employed in the will,
a specific legacy cannot be made good from the general assets.
Under these same circumstances, a' demonstrative legacy would be
made good, 4 thus faring in this respect like a general legacy ; but
in case of abatement it is not scaled down, thus in this respect
faring like a specific legacy. 5

Testament, as in the phrase " last will and testament," or " last
testament," is nowadays used with the same meaning as the word

"will."

Will. A will is ons's solemn declaration, in legal form, and
revocable during his life, making a disposition of his property to
take effect at his death.

1 Bliven v Seymour, 88 N. Y. 469.

5 Towle v. Swasey, 106 Mass. 100 (106). 3 Williams on Executors, 204.

* Wilcox v. Wilcox, 13 All. 252 (256).

5 Coleman v. Coleman, 2 Ves. Jr. 639 (640).

APPENDIX.

469

APPENDIX.

THE ENGLISH WILLS ACT.
(1 Vict., c. 26, July 3d, 1837.)

Be it enacted, that the words and expressions hereinafter men-
tioned, which in their ordinary signification 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 construc-
tion, be interpreted as follows: (that is to say) the "word ,b will"
shall extend to a testament, and to a codicil, and to an appoint-
ment by will or by writing in the nature of a will in exercise of a
power, and also to a disposition by will and testament or devise of
the custody and tuition of any child, by virtue of an act passed in
the twelfth year of the reign of King Charles the Second, intituled
An act for taking away tin mart of wards ami liveries ami 1, ,t-
ures, in capite and by knights service, and purveyanct , and for
settling a revenue upon Ills 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, inti-
tuled An act for taking away the court of wards and lir< vies and
t> n a n s. in capite and l>;/ knights service, and to any other testamen-
tary disposition ; and the words "real estate" shall extend to man-
ors, advowsons, messuages, lands, tithes, rents, and hereditaments,
whether freehold, customary freehold, tenant right, customary or
copyhold, or of any other tenure, and whether corporeal, incorpo-
real, or personal, and to any undivided share thereof, and to any
estate, right, or interesl (other than a chattel interest i therein ; and
the words " personal estate" shall extend to leasehold estates and

other chattel- real, ami also to moneys, shares of government and

other funds, securities for money (nol being real estates), debts,
ehosee in action, rights, err lit-, goods, and all other property what-
ver which by law devolves upon the executor or administrator,
and to any share or interest therein; and even word importing
the singular number only shall extend ami he applied t.» several

(471)

472 APPENDIX.

persons or things as well as one person or thing ; and every word
importing the masculine gender only shall extend and be applied
to a female as well as a male.

II. And be it further enacted, that an act passed in the thirty-
second year of the reign of King Henry the Eighth, intituled The
act of wills, wards, and primer seisins, whereby a man may de-
vise two parts of his land ; and also an act passed in the thirty-
fourth and thirty-fifth years of the reign of the said King Henry
the Eighth, intituled The bill concerning the explanation of wills ;
and also an act passed in the parliament of Ireland, in the tenth
year of the reign of King Charles the First, intituled An act how
lands, tenements, etc., may be disposed by will or otherwise
and concerning wards and primer seisins / and also so much of
an act passed in the twenty-ninth year of the reign of King
Charles the Second, intituled An act for prevention of frauds
and perjuries, and of an act passed in the parliament of Ireland in
the seventh year of the reign of King William the Third, intituled
An act for prevention of frauds and perjuries, as relates to de-
vises or bequests of lands or tenements, or to the revocation or
alteration of any devise in writing of any lands, tenements, or
hereditaments, or any clause thereof, or to the devise of any es-
tate pur autre vie, or to any such estates being assets, or to nun-
cupative wills, or to the repeal, altering, or changing of any will
in writing concerning any goods or chattels or personal estate, or
any clause, devise, or bequest therein; and also so much of an
act passed in the fourth and fifth years of the reign of Queen
Anne, intituled An act for the amendment of the law and the
better advancement of justice, and of an act passed in the parlia-
ment of Ireland in the sixth year of the reign of Queen Anne,
intituled An act for the amendment of the law and the better ad-
vancement of justice, as relates to witnesses to nuncupative wills ;
and also so much of an act passed in the fourteenth year of the
reign of King George the Second, intituled An act to amend the law
concerning common recoveries, and to explain and amend an act
made in the twenty -ninth year of the reign of King Charles the Sec-
ond, 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, inti-
tuled An act for avoiding and putting an end to certain doubts

APPENDIX. 473

and questions relating to the attestation of wills and codicils con-
cerning real estates in that part of Great Britain called England,
and in His Majesty's colonies arid plantations in America, except
so far as relates to bis majesty's colonies and plantations in Amer-
ica j 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 avoiding and putting an end to certain
doubts and questions relating to the attestations of wills and cod-
icils concerning real estates j 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 disposition of copyhold estates
by ivill, shall be and tbe same are hereby repealed, except so far
as the same acts or any of them respectively relate 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
manner hereinafter required, all real estate and all personal estate
which he shall be entitled to, either at law or in equity, at the
time of his death, and which, if not so devised, bequeathed, or
disposed of, would devolve upon the heir-at-law, or customary heir
of him, or, if he became entitled by descent, of his ancestor, or
upon his executor or administrator; and that the power hereby
given shall extend to all real estate of the nature of customary
freehold or tenant right, or customary or copyhold, notwithstand-
ing that the testator may not have surrendered the same to the
use of his will, or not withstanding that, being entitled as heir, dev-
isee, or otherwise, to be admitted thereto, he shall not have been
admitted thereto, or notwithstanding that the same, in conse-
quence 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 sur-
render to the use of a will should continue in force for a limited
time only, or any other special custom, could not have been dis-
posed of by will according to the power contained in this act, if
tlii- ad had not been made; and also to estates pur autre rie,
whether there shall or shall not be any special occupant thereof,
and whether the same shall be freehold, customary freehold, ten-
ant right, customary or copyhold, or of any other tenure, and

474 APPENDIX.

whether the same shall be a corporeal or an incorporeal heredita-
ment ; and also to all contingent, executory, or other future in-
terests 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 same 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, in-
terests, and rights respectively, and other real and personal estate
as the testator may be entitled to at the time of his death, not-
withstanding that he may become entitled to the same subse-
quently to the execution of his will.

IV. 1 Provided, always, and be it further enacted, that where
any real estate of the nature of customary freehold or tenant
right, or customary or copyhold, might by the custom of the
manor of which the same is holden, have been surrendered to the
use of a will, and the testator shall not have surrendered the same
to the use of his will, no person entitled or claiming to be en-
titled thereto by virtue of such will, shall be entitled to be ad-
mitted, except upon payment of all such stamp duties, fees, and
sums of money as would have been lawfully due and payable in
respect of the surrendering of such real estate to the use of the
will, or in respect of presenting, registering, or enrolling such
surrender, if the same real estate had been surrendered to the use
of the will of such testator: Provided also, that where the testa-
tor was entitled to have been admitted to such real estate, and
might if he had been admitted thereto, have surrendered the same
to the use of his will, and shall not have been admitted thereto,
no person entitled or claiming to be entitled to such real estate in
consequence of such will shall be entitled to be admitted to the
same real estate by virtue thereof, except on payment of all such
stamp duties, fees, fine, and sums of money as would have been
lawfully due and payable in respect of the admittance of such
testator to such real estate, and also of all such stamp duties, fees,
and sums of money as would have been lawfully due and payable
in respect of surrendering such real estate to the use of the will,

1 See 4 & 5 Vict. c. 35, §§ 88-90.

APPENDIX. 475

or of presenting, registering, or enrolling such surrender, had the
testator been duly admitted to such real estate, and afterwards
surrendered the same to the use of his will ; all which stamp duties,
fees, line, or sums of money due as aforesaid shall be paid in ad-
dition to the stamp duties, fees, fine, or sums of money due or
payable on the admittance of such person so entitled or claiming
to be entitled to the same real estate as aforesaid.

Y. And be it further enacted, that when any real estate of the
nature of customary freehold or tenant right, or customary or
copyhold, shall be disposed of by will, the lord of the manor or
reputed manor of which such real estate is holden, or his steward,
or the deputy of such steward, shall cause the will by which such
disposition shall be made, or so much thereof as shall contain the
disposition of such real estate, to be entered on the court rolls of
such manor or reputed manor; and when any trusts are declared
by the will of such real estate, it shall not be necessary to enter
the declaration of such trusts, but it shall be sufficient to state in
the entry on the court rolls that such real estate is subject to the
trusts declared by such will ; and when any such real estate could
not have been disposed of by Mill if this act had not been made,
the same tine, heriot, <luv>, duties, and services shall be paid and
rendered by the devisee as would have been due from the cus-
tomary heir in case of the descent of the same real estate, and the
lord .-hall as against the devisee of such estate have the same
remedy for recovering and enforcing such tine, heriot, dues,
duties, and services as he is now entitled to for recovering and
enforcing the same from or against the customary heir in case of
a descent.

VI. And be it further enacted, that if no disposition by will
-hill be made of any e I ite pur autre vie of a freehold nature,
the same shall be chargeable in the hand.- of the heir, if it shall
come to him by reason of special occupancy, as assets by descent
a- in the case of freehold land in fee simple; and in case there
Bhall be no special occupanl of any estate /<>/,■,/,///■, vie, whether
freehold or customary freehold, tenant right, customary or copy-
hold, or of any other tenure, and whether a corporeal or incor-
poreal hereditament, it shall go to the executor or administrator
of the party that had the e-iate thereof by virtue of the granl :

and if tin- - nne shall coine to the executor or administrator either

476 APPENDIX.

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 intes-
tate.

VII. And be it further enacted, that no will made by any per-
son 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 men-
tioned ; (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. -

[By the Statute 15 and 16 Vict., ch. 24, (1852), it was provided
as follows :

I. "Where by an act passed in the first year of the reign of Her
Majesty Queen Victoria, intituled An act for the amendment of
the laws with respect to wills, it is enacted, that no will shall be
valid unless it shall be signed at the foot or end thereof by the tes-
tator, or by some other person in his presence, and by his direction :
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, 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,

1 Compare the later statute in the next paragraph.

APPENDIX. 477

or by the circumstance that the signature shall be placed among
the words of the testimonium clause or of the clause of attesta-
tion, or shall follow or be after, or under the clause of attesta-
tion, either with or without a blank space intervening, or shall fol-
low or be after, or under, or beside the names or one of the names
of the subscribing witnesses, or by the circumstance that the signa-
ture shall be on a side, or page, or other portion of the paper or
papers containing the will, whereon no clause or paragraph or dis-
posing part of the will shall be written above the signature, or by
the circumstance that there shall appear 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 signa-
ture; and the enumeration of the above circumstances shall not
restrict the generality of the above enactment ; but no signature
under the said act or this act shall be operative to give effect to
any disposition 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.

II. (Relates to the effect of the act on wills already made).

III. (Relates to the interpretation of the word "will" under
the act).

IV. This act may be cited as, " The Wills Act Amendment Act,
1852."]

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 man-
ner hereinbefore required shall, so far as respects the execution and
attestation thereof, be a valid execution of a power of appointment
by will, notwithstanding it shall have been expressly required that
a will made in exercise of such power should be executed with
some additional or other form of execution or solemnity.

XI. Provided always, and he it further enacted, that any soldier

being in actual military service, or any mariner, or seaman being

:it -en, may dispose of his personal estate as he might have dene

before the making of this act.

XII. And he it further enacted, thai this acl shall nol prejudice

or affed any of the provisions contained in an ad passed in the

eleventh year "I the reign of his majesty King George the Fourth,
and the fir-t year "I the reign of his late majesty Kiii!_ r WiUiam

478 APPENDIX.

the Fourth, intituled An act to amend and consolidate the laios
relating to the pay of the royal navy, respecting the wills of petty
officers and seamen in the royal navy, and non-commissioned offi-
cers of marines, and marines, so far as relates to their wages, pay,
prize money, bounty money, and allowances, or other moneys pay-
able in respect to services in Her Majesty's navy.

XIII. And he it further enacted, that every will executed in
manner hereinbefore required shall be valid without any other
publication thereof.

XIV. And be it further enacted, that if any person who shall
attest the execution of a will shall at the time of the execution
thereof or at any time afterwards be incompetent to be admitted
a witness to prove the execution thereof, such will shall not on that
account be invalid.

XY. 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 beneficial devise, legacy, estate, interest, gift, or appointment,
of or affecting any real or personal estate (other than and except
charges and directions for the payment of any debt or debts),
shall be thereby given or made, such devise, legacy, estate, interest,
gift, or appointment shall, so far only as concerns such person at-
testing- the execution of such will, or the wife or husband of such
person, or any person claiming under such person or wife or hus-
band, 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
notwithstanding such charge shall be admitted a witness to prove the
execution of such will, or to prove the validity or invalidity thereof.

XVII. And be it further enacted, that no person shall, on ac-
count of his being an executor of a will, be incompetent to be ad-
mitted a witness to prove the execution of such will, or a witness to
prove the validity or invalidity thereof.

XA T III. And be it further enacted, that every will made by a
man or woman shall be revoked by his or her marriage (except a

APPEXDIX. 479

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 person entitled as his or her next of kin,
under the statute of distribution- 1.

XIX. And be it further enacted, that no will shall be revoked
by any presumption of an intention on the ground of an alteration
ill circumstances.

XX. And be it further enacted, that no will or codicil, or any
part thereof, shall be revoked otherwise than as aforesaid, or by
another will or codicil executed in manner hereinbefore required,
or by some writing declaring an intention to revoke the same, and
executed in the manner in which a will is hereinbefore required to
be executed, or by the burning, tearing, or otherwise destroying
the same by the testator, or by some person in his presence and by
his direction, with the intention of revoking the same.

XXI. Ami 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 the will before such alteration shall not be apparent, unless such
alteration shall be executed in like manner as hereinbefore is re-
quired for the execution of the will ; but the will, with such alter-
ation as part thereof, shall be deemed to be duly executed if the

nature 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 -nine oiher pari of the will.

XXII. And licit further enacted, thai no will or codicil or any
pari thereof, which shall be in any manner revoked, shall he re-
vived otherwise than by (he re-execution thereof, or by a codicil
executed in manner hereinbefore required, and showing an inten-
tion to revive the 3ame; and when any will or codicil which shall
he partly revoked, and afterwards wholly revoked, shall he re-
vived, Mich revival -hall not extend to 80 much thereof as shall
have been revoked before the revocation of the whole thereof,
unle-- an intention to the contrary shall be shown.

XXIII. And hi' it further enacted, thai no conveyance or other

ad made or done iquentlj to the execution of a will of or re-

480 APPENDIX.

lating 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 com-
prised in it, to speak and take effect as if it had been executed
immediately before the death of the testator, unleas a contrary in-
tention shall appear by the will.

XXV. And be it further enacted, that, unless a contrary inten-
tion 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 included in the residuary devise (if any) contained
in such will.

XXVI. And be it further enacted, that a devise of the land of
the testator, or of the land of the testator in any place or in the
occupation of any person mentioned in his will, or otherwise de-
scribed in a general manner, and any other general devise which
would describe a customary, copyhold, or leasehold estate if the
testator had no freehold estate which could be described by it,
shall be construed to include the customary, copyhold, and lease-
hold estates of the testator, or his customary, copyhold, and lease-
hold estates, or any of them, to which such description shall ex-
tend, as the case may be, as well as freehold estates, unless a con-
trary intention shall appear by the will.

XXVII. And be it further enacted, that a general devise of the
real estate of the testator, or of the real estate of the testator in
any place or in the occupation of any person mentioned in his will,
or otherwise described in a general manner, shall be construed to
include any real estate, or any real estate to which such descrip-
tion 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 de-

APPENDIX. 481

scribed in a general manner, shall be construed to include any per-
sonal estate, or any personal estate to which such description shall
exteud (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.

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
appeal- by the will.

XXIX. And be it further enacted, that in any devise or be-
quest of real or personal estate the words " die without issue," or
"die without 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 inten-
tion shall appear by the will, by reason of such person having a
prior estate tail, or of a preceding gift, being, without any implica-
tion arising from such words, a limitation of an estate tail to such
person or issue, or otherwise : Provided, that this act shall not ex-
tend to cases where such words as aforesaid import if no issue
described in a preceding gift shall be horn, or if there shall be no
issue who shall live to attain the age or otherwise answer the de-
scripl ion required for obtaining a vested estate by a preceding gill

to ,-in-li issue.

XXX. And be it further enacted, that where any real estate
(other than or not being a presentation to a church) shall he de-
vised 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 he given to him expressly or by implication.

XXXI. And be it. further enacted, thai where any real estate

Shall be devised to a trustee, without any express limitation of

the e tate to he taken by Buch trustee, and the beneficial interest
in such real estate, or in the Burplus rents and profits thereof, shall

482 APPENDIX.

not be given to any person for life, or such beneficial interest shall
be given to any person for life, but the purposes of the trust may
continue beyond the life of such person, such devise shall be con-
strued 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 leav-
ing 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 happened immediately after the death of the tes-
tator, unless a contrary intention shall appear by the will.

XXXIII. And be it further enacted, that where any person
being a child or other issue of the testator to whom any real or
personal estate shall be devised or bequeathed for any estate or in-
terest not determinable at or before the death of such person shall
die in the lifetime of the testator leaving issue, and any such issue
of such person shall be living at the time of the death of the tes-
tator, such devise or bequest shall not lapse, but shall take effect
as if the death of such person had happened immediately after
the death of the testator, unless a contrary intention shall appear
by the will.

XXXIY. And be it further enacted, that this act shall not ex-
tend to any will made before the first day of January, one thou-
sand eight hundred and thirty-eight, and that every will re-exe-
cuted or republished, or revived by any codicil, shall for the pur-
poses 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
thorn and eight hundred and thirty -eight.

XXXV. And be it further enacted, that this act shall not ex-
tend to Scotland.

XXXVI. And be it further enacted, that this act may be
amended, altered, or repealed by any act or acts to be passed in
this present session of parliament.

INDEX.

483

INDEX.

(The references are to pages.)

ACCIDENT. See Revocation.
ACCRUER, 457.
ACKNOWLEDGMENT. See Execution.

AGE.

See Testamentary Incapacity.

" of age," bow computed. See Infancy.

ALIENAGE.

effect on testamentary capacity, 10.

ALTERATION.

of will. See Revocation.

of testator's circumstances,

See Revocation.

effect of alterations, 440.

how effected,

See Codicil.

ATTESTATION.

denned, 267.

distinguished from signing, 267.

nnder 1 Vict. c. 2G, 2.

ATTESTATION CLAUSE.

form, purpose, .'iii<l effect, 281.
where witnesses forget facts,

cases, 282 285.
where they fraudulently deny facts, 280.
probate refused though clause full, 280.
probate granted against testimony,

case, 287 289.
no attestation clause ; witnesses dead,

case, 200-201 .

ATTORNEY. See Undue Iotli bwob.

(485)

486 INDEX.

BLINDNESS. See Testamentary Incapacity.

BURDEN OF PROOF, 113-117.

(1). Testamentary capacity, 34-38, 54-58, 60-70, 72, 95, 116-
117, 250-264.
distinction between permanent and temporary unsound-
ness, 72-75.
of mental unsoundness, 16. note 2.
drunkenness, 20, 21.
settled insanity, 21.
temporary cause, 21.
declarations. See Evidence.
(2). Undue influence, 96-97, 113-117.
where testator feeble, 95, 116-117.
testator's relations with beneficiary, 171-202.
where confidential, fiduciary, or illicit relations, 96-97.
See Undue Influence.
(3). Fraud, 96-97.

(4). Revocation,

See Revocation ; Evidence.

BURNING. See Revocation.

CANCELLING. See Revocation.

CAPACITY.

to make will,

See Testamentary Incapacity.

to take by devise or bequest,

See Incapable Beneficiaries.

CAPITA, PER, 455.

CHARITY, gifts to, 427.

CHATTELS, 449.

CHILDREN, 455 et seq.

early right in father's personal property, 1.

See Testamentary Incapacity ; Revocation.

CLASS, gift to, 451, 452, 454, 455.

CODICIL.

nature and effect, 309.

and will, together make one instrument, 309.

is part of will, 441, note 3.

how far a revocation, 444, note 3.

INDEX. 487

COEECION. See Undue Influence.

CONDITIONS, 427, and note 3 ; 437.

CONDITIONAL WELL. See Will.

CONFESSOE. See Undue Influence.

CONFIDENTIAL KELATIONS. See Undue Influence.

CONFLICT OF LAWS, 436.

CONSIDEEATION. •

See Contracts concerning Wills.

CONSTEUCTION.

meaning, 4.

blind or obscure writing,

reference to decipher, 383, note 5.

CONSTEUCTION OF WILLS.

compared with construction of deeds, 438.

rule of, defined, 439.

where legacy repeated, 440.

and presumptions, distinguished, 439.

and rules of law, distinguished, 440.

always subject to intent, 439, 441.

and principles of interpretation, distinguished, 441.

general terms restricted by context, 441, note 3.

meaning of " intent," 441.

General Rules.
entire will construed together, 441.
effect to be given to every part, 441.
intestacy to be avoided, 442.
when later provisions override earlier, 442.
technical terms, how construed, 442.
words interpreted in primary sense, 442.
conflict of laws, 436, 442.
when will takes effect, 442.
of what dale will " speaks," 442.
statutory provisions, 443, 444.
disinherison of heirs, 444.
implications and express provisions, 445.

effect of inadequate reasons, absurd provisions, etc., 445.

words repeated or changed, 445,
literal or tree meaning, when, 1 15,

488 INDEX.

CONSTRUCTION OF WILLS— continued.
Special Rales.

(a). Provisions concerning land,

primd facie meaning of various terms, 446.

general devise carries fee, 446.

rule in Shelley's case, 446.

" or " when read " and," 447.

" death without issue," 447.

estates tail, 447.

vesting, 448.

widow's dower, provisions in lieu of, 448.

(6). Provisions concerning personal property, 448.
primd facie meaning of various terms, 448, 449.
vesting, 449.

(c). Lapse, 450, 451.

charges, 450, 451.
(d). Residuary gifts, 451, 452.
(e). Tenancy, 452.
(f). Provisions employing terms of relationship,

primd facie meaning of various terms, 452—455.

children, number named erroneous, 453.

" children," what date regarded, 453-4.

gift to children, when subject to open, 454.

children in ventre sa mere, 454.

when children take per capita and not per stirpes, 454-455.

(g). Execution of powers,
rules, 455.

(h). Trusts,

rules, 455.

precatory words, 456.
(i). Substitution and survivorship,

rules, 457.
(j). Equitable conversion,

rules, 457.

CONTINGENT WILL.

See Will (Conditional Will).

CONTRACTS CONCERNING WILLS, 408.
power to agree concerning will, 408.
form of such contracts, 408.

INDEX. 489

CONTRACTS CONCERNING WILLS— continued.

effect on will made, 408.

consideration, 408-409.

as to personalty and realty, 408-411.

legal and equitable relief, 408-411.

effect of Statute of Frauds, 408-411.

specific performance, 408-411.

effect on revocability of will, 410-411.

bearing on joint wills, 411.

agreement to devise, specific performance,

case, 411.
agreement to give legacy, 414.
agreement not to devise,

case, 414-416.
oral agreement to devise,

Statute of Frauds,

case, 416.
oral agreement to make legacy ; whether writing necessary, 418.
executed contract to devise, 418-420.
theory of equitable relief, 420.
special relief in equity, 420.

CONTRACT TO BUY LAND, 446.
CONVEYANCE. See Revocation.

CORPORATION.

as beneficiary, 428.

COVERTURE.

disabilities and the four exceptions, 8.

reasons for disability, 8.

present English statute, 9.

American laws, 9.

clause against anticipation, 9.

CRIME.

effect on testamentary capacity, 9.

DEAF AND DUMB.

See Ti:sT\MKNTAitY Incapacity.

DEATH

8 e < Ihapteb VI

490 INDEX.

DECLAKATIONS.

of testator,

as evidence of

mental unsoundness,

case, 82-91.
revocation, 82-91.
fraud, 82-91.
undue influence, 82-91.
to prove intent in revocation, 325, note 4.
DEED.

will in form of,

See "Will.
DEFINITIONS, 467, 468.
' will, 468.
testament, 468.
devise, 467.
executory devise, 467.
bequest, 467.
legacy, 467.

general, specific, demonstrative,
gift causa mortis, 467.
holographic will, 467.

(See also under special heads in Index.)

DELIRIUM, 20-21.

See Evidence.
DELUSIONS, 15-16, 54.

when insane and when not, 38-54.
illustration, 23.
affecting will or not, 18, 19.
cases, 38-58, 78-82.

DEMENTIA, 19, 20.
DESCRIPTION, 450.
DESTRUCTION. See Revocation.
DEVISE, 426, 427, 428, 429, 446.

See Testamentary Incapacity.
DOMICIL. See Conflict of Laws.

DRUNKENNESS.

effect on capacity, 20.

See Evidence.

DUMB PERSON. See Testamentary Incapacity.

INDEX. 491

EQUITY. See Contracts concerning "Wills.
ERASURES, 440.

EVIDENCE.

(1) of testator's mental condition, 211-213
testator's conduct, 78-82.
delusions, 38-^48.

peculiar provisions in will, 23, 24.

insanity, 54-58, 59, 60-72.

intrinsic, 22, 24, 54-58, 59, 60-70.

idiocy, 34-38.

irrational will as, 22, 23.

rational will as, 22.

where testator deaf, dumb, or blind, 28-34.

belief in witches, etc., 24, 76-78.

declarations, how far admissible, 82-91.

drunkenness, 72.

suicide as, 17.

See Burden of Proof ; Presumption ; Witnesses.

(2) of due execution, 54-70.
testator's declarations, 211-213.

(3) of undue influence,
relevant facts, 95-213.
kinds of evidence, 211-213.

testator's declarations, 117-160, 169-171, 211-213.
testator's relations with beneficiary, 171-173.
admissions of legatee, 123-135, 160-168.
attorney as legatee, 203-211.
draughtsman as legatee, 203-211.
confidential relations, 96-97.
fiduciary relations, 96-97.
illicit relations, 97.

See Burden of Proof.

(4) of fraud, 211-213.

(5) of revocation, 326-328.
declarations, 211-21 :5.

(6) concerning competency of minor witness, 293-296.

(7) extrinsic evidence on construction,

distinguished from intrinsic, 459.
purpose, 459.

492 INDEX.

EVIDENCE— continued.

restrictions, 459.

how far admitted, 459.

admissible to decipher, 459.

or to translate, 459.

or to show local usage, 459.

nicknames, 459.

technical terms, 459, note 2.

specific descriptions identified, 460.

how far allowed, 460.
ambiguous terms, 460.

if primary meaning sensible, 460, 461.

two classes, 461.
evidence of underlying facts, 461-464.

when admissible, 462-464.
direct evidence of intent, 461, 464-466

when admissible, 464-466.

equivocations, 462, note 2 ; 465.

latent and patent ambiguities, 465
general summary of rules, 465, 466.

EXECUTION.
meaning, 4.
requisites, 214.
scope of discussion, 214.

order in which statutory steps taken, 214-215.
bearing of statutes, 214.
purpose of formalities, 1, 3.

(1). Signing by testator, 1, 2, 215-236.
(a). Personal signature, 215.
(6). Signature by another, 216, 224.
signing by mark, 215.
signing by initials, 215.
signing by seal on wax, 215.

when this not sufficient, 215, note 3.
signing by first name only, 215.
signing only part of name, 216.
wrong name round mark, 216.
order of making mark and writing name, 216.
hand guided, 216.
when can sign by another, 216.

INDEX. 493

EXECUTION— continued.

signature, what is a good,
general discussion,

case, 217-222.
by stamp,

case, 222-223.
mark, wrong name,

case, 223.
position of signature, 223-236.
varying statutes, 223.
when not specified, 224.

cases, 224-229.
when specified,

English statute, 224, note.

signature " at end of will,"
cases, 229-236.

(2). Making or acknowledgment of signature, 236-241.
varying statutes, 236.

(a). Signed before witnesses, 237.

(b). Acknowledgment of signature, 237.
when to be made, 237.
need not be in express words,

case, 237-239.
signature must be visible,

case, 239-241.

(3). Declaration of the will,

varying statutes, 241-242.

when not required, illustration, 242.

when required,

cases, 242-249.
wh;it satisfies the requirement, 242-249.

(4). Bequest to witnesses, 264-267.
varying statutes, 264

what request satisfies requirement,
cases, 265-267.

(5). Animus testandi,

meaning of term, 249.
if intent absent, no valid execution,
eases, 250-261.

494 INDEX.

EXECUTION— continued.

(6). Attestation and signing by witnesses, 267-281.

varying statutes, 267.

distinction between attestation and signing, 267.
signing, 267-272.
by mark, 267.
by descriptive term, 267.
wrong name, when not enough,

case, 268.
by initials,

case, 269.
written by another,

case, 270-272.
position of signatures, 272.
varying statutes, 272.
where position not specified, general principles,

cases, 273-275.
where position is specified, 275.

varying statutes, 275.

illustrations, 275.

(7). In "presence of testator,"
varying statutes, 275.
illustrations of phrase, 276-280.
statement of the rule, 280-281.

(8). Attestation clause,

purpose, form, and effect, 281.

cases, 282-291.
probate before testator's death, result, 437.
See Attestation Clause.

EXECUTOR. See Will.

EXECUTORY DEVISE. See Definitions.

FEME COVERT. See Covekture.

FEUDAL SYSTEM.

influence in early law of wills, 1.

FIDUCIARY RELATIONS. See Undue Influence.

FINES, 8.

INDEX. 495

FRAUD.

surreptitious substitution, 95.

case, 98.
in execution, effect, 95.

testator's declarations concerning, see Evidence.
burden of proof, see Evidence.

GENERAL LEGACY. See Definitions.

GIFT.

causa mortis,

See Definitions.

GUARDLAN". See Undue Influence.

HOLOGRAPH. See Definitions.
HUSBAND AND WIFE. See Feme Covert.

IDIOCY, 15.

inquisition, effect of,
case, 34-38.

ILLEGAL PROVISIONS, 426-427.

perpetuities, 427, 440.
charitable gifts, 427.
against public policy, 427.
dower ; curtesy, 427.

INCAPABLE BENEFICIARIES, 427-429.
aliens, 427.
corporations, 428.
subscribing witnesses, 428.
against public policy, 428.

INCORPORATION BY REFERENCE, 426.

INFANCY.

former law of England, 5.

age required in testator at common law, 5.

by 1 Vict. c. 26, 5.

in American States, 5.
rule concerning incapacity not arbitrary, 6.
" of ago," how computed,

cases, 6-7.

496 INDEX.

INFANT.

under statutory age cannot make will, 5, note 5.
on what day conies of age, 6.
care exercised in will of, 6, note 2.

INFANTS.

excepted in Stat, of Wills, 1.

INSANITY, 12-24.

See Testamentary Incapacity.

INTERLINEATIONS, 440.

LAND, 446.

LAPSE, 450.

LEGACY. See Definitions.

LEX. See Conflict of Laws.

LOCAL LAWS. See Conflict of Laws.

LOST WILL. See Will.

LOUISIANA.

peculiarities of law of,
case, 232-236.

LUCID INTERVAL, 16.

cases, 54-62.
burden of proof,
cases, 60-70.

LUNACY, 15-17.

See Testamentary Incapacity.

MARINER. See Nuncupate Will.

MARK, signing by,

See Execution.

MARRIAGE. See Revocation.

MARRIED WOMEN.

right to make wills,
common law, 7.
exclusion from 32 and 34 Hen. VHT., 8.
reason for disability, 8.
excepted in statutes of wills, 1.

See Coverture.

index. 497

MEMORY, SOUND. See Testamentary Incapacity.

MIND, SOUND. See Testamentary Incapacity.

MISTAKE IN EXECUTION, 437.

MONOMANIA, 18-19.

affecting will or not, 18-19.

MURDER, of testator by beneficiary, 428.

NUNCUPATIVE WILL, 429-436.
explained, 429, 430.
meaning in Louisiana, 429.
three periods, 429.

requirements under each, 429-430.
the privileged classes, sailors and soldiers, 430, 431„
act only on personal property, 430.
rogaiio testium defined, 431.

case, 432-43G.

OBLITERATION. See Revocation.

OPINION AS EVIDENCE.

See Witnesses ; Evidence.

PAROL EVIDENCE, 458.

PARTIAL INSANITY, 18.

PENCIL, WLLL IN. See Execution.

PER STIRPES, per capita, 455.

PERSONAL PROPERTY, 448.

PRACTICE.
rides of, 4.

PRESENCE, of testator, of witnesses.

See Execution.
PRESUMPTION
defined, 439.
where blanfe in will, 439.
where repeated Legacy, 110.
where [nterlirw.-Mions or ;ili< rations, 440
where will rational, 6 1 70.
':■'

498 INDEX.

PRESUMPTION— continued.

where drunkenness proved, 72.

where will apparently duly executed, 250-264.

where testator blind, etc., 95, 264.

where idiocy found by inquisition, 34-38.

where testator in asylum, 54-58, 59, 60-70.

where insanity found by inquisition, 70-72.

where permanent and where temporary unsoundness shown, 20,
21, 72-75.

where confidential relations, 96-97.

general, of capacity, 16, note 2.

competency of minor witness
case, 293-296.

See Evidence (Burden of Proof).
PROBATE.

meaning, 4.

scandalous matter, striking out, 437.

REAL PROPERTY, 446.

REPUBLICATION.

meaning of term, 4, 376.
methods of, 376.
by reference in codicil, 376.
by re-execution, 376.
effect of on will, 376.
what reference required, 376-377.
will republished by reference, how proved, 377.
republication by re-execution,
case, 377-381.

RESTRAINT.
meaning, 4.

RESTRICTION, 39, 426-429.

REVOCATION.
meaning, 4.
methods of, 309-376.
varying statutes, 309.

testator's declarations concerning, see Declabation.
to revoke, testator must have sound mind, 309, note 1.
and not be subject to undue influence, 309, note 1.

INDEX. 499

KEVOCATION— continued.
to nullify revocation,

when undue influence must exist, 309, note 1.
effect of on previous will,

case, 370-376.
of will, when revokes codicil, 309, note 3.
written will not revoked by nuncupative, 309, note 4.
by codicil, 309.
by subsequent will, 309.
by a i instrument not testamentary, 310.

case, 310-311.
by marriage,

cases, 312-318.

var3 r ing statutes, 311, note.

how affected by married women's statutes, 6.
cases, 313-315.

of widow, 317.
by marriage and birth of issue, 318.
by subsequent birth of child, 3.

case, 319-321.

where living child not provided for, 319.
whether by lapse of time,

case, 321-324.
by change of testator's circumstances, 321-324.
by disposal of property, 32+.
by burning, tearing, cancelling, obliterating, or destroying, 324.

intent necessary, 324, 325.

of part of will, 324, note 2.

varying statutes, 325.

destroying wrong paper, 325.

by mistake, 325.

act not completed, 325.

no witness required, when, 325, note 1.

by act of another, 325, note 2
capacity required, degree, 325, 326.
when due to mistake concerning facts, 326.
only slight burning,

ease, 350 352.
signature torn off,

case, 852-853.
signature scratched away,

case, 353.

500 INDEX.

REVOCATION— continued.
tearing off seal, 353.
tearing while insane,

case, 329-330.
destruction by another without testator's consent,

case, 330-334.
act of revocation not completed,

case, 334-335.
torn partly through,

case, 335-341.
intention, but no act,
case, 341-342.
% tearing, surreptitious preservation,
case, 342-344.
burning, surreptitious preservation,

cases, 344-348, 349-350.
tearing, no animus revocandi,

case, 348-349.
cutting out signature, 353.
cancellation of signature3,

case, 353-356.
will not found — general presumption, 356.
insane testator, no presumption,

case, 356-358.
will not found— rebutting presumption, 356.
when no presumption,

case, 358-361.
presumption, intrinsic and extrinsic evidence,
case, 361-364.
will not found — presumption rebutted,
case, 364-366.
where loss explained,
case, 366-367.
will found mutilated ; presumption,

case, 367-369.
will found mutilated with old papers,
case, 369-370.
RULES OF LAW, 440.

SAILOR. See Nuncupative Will-
SANITY. See Testamentary Incapacity.

LNDEX. 501

SEAL.

in execution, 281, note 2.

SEAMAN. See Nuncupative Will.

SENILE DEMENTIA. See Dementia,

SIGNATURE. See Execution.

SIGNING. See Execution.

SOLDIER. See Nuncupative Will.

SOUND MIND.

defined, 38-48.

SPECIFIC LEGACIES. See Definitions.

SPIRITUALISM, belief in,

See Testamentakv Incapacity.

STATUTES (English).

32 Hen. Vm. eh. 1; 1, 5, 8.
31 Hen. VTH. ch. 5; 1, 5, 8.

St. of Frauds, 1, 83, 217, 218, 219, 224, 225, 235, 291, 301, 324,

345, 408, 409, 416, 417.
25 Geo. H. c 6; 301, 302, 303.
53 Geo. HI. eh. 127; 11.
11 Geo. IV., 211.
1 Will. IV. ch. 40; 211.
7 Will. IT., 371.
St. of Wills, 1 Vict. ch. 26; 2, 5, 9, 218, 222, 237, 303, 324, 371,

443, 451, 452, 455.
83 Vict c 14, sec. 2; 10.

33 and 34 Vict. ch. 23; 11.

STIRPES, I'Ki;. 155.

SUICIDE. See Evidence.

SUNDAY, will made on. Bennett v. Brooks, 9 Allen, 118.

TF, A I;IN( ', Srr I ; I. VOCATION.

TESTAMENTARY, whai instruments are,

See Will.

502 INDEX.

TESTAMENTARY INCAPACITY.

meaning, 3.

degree of intelligence required, 12-15.

cases, 25-27, 38-40.
general discussion, 12-24.
effect if testator blind, 14.

case, 27-28.
effect if testator deaf, 14.

cases, 30-34.
effect if testator dumb, 14.

cases, 30-34.
effect of old age, 14.

case, 29-30.
effect of weakness, 14.

case, 29.
See also Infancy, Coverture, Alienage, Crime, Mental Unsoundness.

testator's declarations as evidence, see Declarations.
references to text-books, 93.

UNDUE INFLUENCE.

meaning, 4.
general principles, 95.
cases, 99-121.

defined, 95.

what is and is not,
cases, 99-121.

influence of wife, 99.

feeble testator, 99.

persuasion, 101-102.

gratitude, affection,
case, 103-107.
subjection to spiritualistic medium, 24.
fiduciary relations, 96-97.
confidential relations, 96-97.
suspicious circumstances,

case, 100-101.
testator's declarations concerning, see Declarations.

VOID, part of will,

See Will.

INDEX. 503

'WIFE.

early right in husband's personal property, 1.
See Coverture; Feme Covert.

TYTLL.

definition, 384

is ambulatory, meaning, 309.

history of, 1, 5.

scope of testamentary power, 1.

of realty, power to make before the Conquest, 5.

no power after Conquest till when, 5.

early restrictions, 1.

of land, in writing, by Statute of Frauds, 1.

meaning of term, 2.

used in two senses, 2.

every one may make, 2.

certain exceptions, 2.

exceptions generally only apparent, 3.
subdivision of the subject, 3.
form of the instrument, 382-397.

materials on which written, 382.

presumption raised by unusual materials, 383.

will may be ou several sheets, 383, note 1.

how fastened, 383, note 1.

when found fastened,

presumption by whom, 383, note 1.

when wi'iting obscure, result, 383, note 5.

the language employed, 383.
translation, 383.

any phraseology and form, if intent, etc., 384

test whether will or not, 384.
effect of statutes, 385.
various informal wills illustrated, 385-381".

merely appointing executor, 385, note 1.

in form of letter, 385, 386.

in form of assignment, 385.
case. :'>'.>( > 395.

in form of deed of gift, 386.

in same instrumenl with power of attorney, 385.
ease, 396 398.
or with contract, 3K5, 387.

mere wish, 385, 386.

504 INDEX.

WILL— contin tied.

mere direction to pay on death, 386.

where headed " Not a will," 387.

if whether will doubtful, evidence admitted, 385, note 9.

in English, foreign testator,

case, 387-389.
informal will,
case, 390.
whether will or deed — test,
case, 390-395.
conditional,

cases, 398-408.
whether, or absolute,
cases, 398-408.
two, of same date, inconsistent, result, 310, note 1.
wills conditional in part, 437.
joint wills, 421-423.
simultaneous wills, 423-424.
double wills, 424.
reciprocal wills, 424.
alternative wills, 425.
duplicate wills, 425.

revocation of one, effect, 425.
one not found, presumption, 425.
parts of will, how attached, 425.
nuncupative wills, (see that heading).

not necessary for will to name an executor. Brady v. McCros-
son, 5 Redf. (N. Y.) 431.

WITNESSES.

concerning sanity,

1 — subscribing, 91-93.

who are " credible," 1, 2, 291-293-308.

what they may state, 91-93.

legatee as, 297-299.

testimony against interest, 297-299.

wife of devisee, 299-303.

wife of legatee, 304-306.

member and pewholder in church beneficiary, 306-308.

infant witness, 293-296.

competency of minor witness, 293-296.

index. 505

WITNESSES— continued.
2— expert, 91-93.
3— others, 91-93.

See Evidence ; Attestation Clause.

WORDS. See Construction ; Will ; Definitions.

WRITING. See Will ; Execution.

Whole Number of Pages 530.

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