T 
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 LOS ANGELES 
 
 SCHOOL OF LAW 
 
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 From 
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 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. 
 
 BY 
 
 STEWART CHAPLIN, 
 
 hi 
 
 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.
 
 Copyright, 1892, by 
 STEWART CHAPLIN. 
 
 T
 
 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)
 
 X 
 
 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. 
 
 XI 
 
 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. 
 
 XV 
 
 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. 
 
 B 
 
 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.
 
 XX 
 
 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. 
 
 II
 
 \(\-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 
 
 17
 
 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. 
 
 18
 
 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 
 
 e 
 
 of each othior, have her unto subscribed our names as witnesses. 
 
 a 
 
 "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.] 
 
 19
 
 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 
 
 i 
 
 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 
 
 25
 
 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- 
 
 I 
 
 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. 
 
 29
 
 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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