UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 How to Prepare a Will 
 
 Modern American Law Lecture 
 
 Blackstone Institute, Chicago

 
 HOW TO PREPARE A WILL 
 
 BY 
 
 GEORGE FOX TUCKER, PH.D., LL. B. 
 
 MEMBER OF THE BOSTON BAR 
 
 One of a Series of Lectures Especially Prepared for the 
 Blackstone Institute 
 
 BLACKSTONB INSTITUTE 
 CHICAGO 
 
 Copyright, 1921, By Blackatone Institute
 
 T 
 
 GEORGE FOX TUCKER 
 
 Mr. Tucker was born at New Bedford, Massa- 
 chusetts, on January 19, 1852. He received the 
 degree of Bachelor of Arts from Brown University 
 at Providence, Rhode Island, in 1873, and his 
 degree of Bachelor of Laws at Boston University 
 in 1875. Subsequently, the degree of Doctor of 
 Philosophy was conferred upon him. He practiced 
 law in New Bedford from 1876 to 1882 and then 
 removed his law office to Boston, where he is in 
 practice today. 
 
 From 1890 to 1892, Mr. Tucker was a member 
 of the Legislature of the Commonwealth of Massa- 
 chusetts. In 1892, he was appointed the Official 
 Reporter of the Decisions of the Supreme Court of 
 Massachusetts. He served in this position until the 
 year 1900. 
 
 Mr. Tucker is the author of numerous treatises 
 and articles relating to the law. Among the im- 
 portant are "Naturalization," in MODERN AMERI- 
 CAN LAW, "Testamentary Forms and Notes on 
 Wills," and "Manual of Massachusetts Corpora- 
 tions." He is joint author of Gould and Tucker's 
 "Notes on United States Statutes," and with Dr. 
 Wilson of Harvard on "International Law."
 
 M 
 
 HOW TO PREPARE A WILL 
 
 By 
 GEORGE Fox TUCKER, PH.D., LL.B. 
 
 WHY ONE SHOULD MAKE A WILL AND WHERE THE 
 WILL MAY BE MADE 
 
 Winy One Should Make a Will. It is a frequent 
 observation, "I am not going to make a will, because 
 I am entirely satisfied with the disposition which the 
 law will make of my property after my decease." 
 This is a thoughtless remark, for generally there are 
 the best reasons for making a will, even if the testator 
 gives his property exactly as it would descend if he 
 left no will. For example, a man may name his exe- 
 cutor in his will and release him from giving a surety 
 or sureties upon his official bond. He may also em- 
 power him to sell property without an order of court. 
 Thus the settlement of the estate is made more easy 
 and expense is avoided. 
 
 A person may have large obligations and a good 
 deal of property not readily marketable. He may 
 make a will for the purpose of instructing his execu- 
 tor how to marshall assets to pay the debts. This 
 applies to business men who are hiring a good deal 
 of money. The instructions would vary according to 
 the circumstances of each case. 
 
 A testator may desire to give his executor instruc- 
 tions as to carrying on his business for a period long 
 enough to liquidate obligations and husband re- 
 sources. 
 
 5
 
 6 MODERN AMERICAN LAW LECTURE 
 
 The question of the executor's compensation may 
 be important. If the testator's affairs are so involved 
 as to require skill, time and experience on the part 
 of the executor, he may provide in the will for liberal 
 compensation, or, if the estate is safely invested and 
 there are few obligations, smaller compensation. 
 
 It is perhaps the duty of the administrator, if 
 there is no will, to insure the estate. In the will the 
 testator may give special instructions as to insur- 
 ance. 
 
 The testator may desire to make certain provisions 
 as to money advanced by him to his children as evi- 
 denced by promissory notes, book charges, etc. So 
 also as to equalizing gifts of property made to his 
 children. This is important when there is a large 
 family. A carefully drawn provision may be in- 
 serted in the will stating that the amount advanced to 
 a child shall be deducted from the share given him. 
 
 From the above it is obvious that there may be 
 excellent reasons for making a will even though the 
 testator gives his property as it would descend if he 
 left no will. 
 
 Where the Will May Be Made. With some ex- 
 ceptions, a will may be made in any part of the globe, 
 but, if made at a place distant from the testator's 
 legal residence, he should have witnesses, if possible, 
 of that residence. Suppose the will is made in Italy 
 and the witnesses are all Italians. Bringing them 
 to this country to prove the will would involve great 
 expense. 
 
 If a testator changes his domicile he should learn 
 from a lawyer whether a new will is necessary.
 
 HOW TO PREPABB A WILL 7 
 
 A famous man declared his domicile as follows : 
 
 "I, the Right Honorable Cecil John Rhodes of Cape Town 
 in the Colony of the Cape of Good Hope hereby revoke all testa- 
 mentary dispositions heretofore made by me and declare this 
 to be my last will which I make this first day of July, 1899. 
 
 "I am a natural born British subject and I now declare that 
 I have adopted and acquired and hereby adopt and acquire and 
 intend to retain Rhodesia as my domicile." 
 
 A person about to make a will should understand 
 that it pertains to property within the territory of 
 his own jurisdiction, and whatever effect is given to 
 it in other jurisdictions is a matter of comity or 
 favor. 
 
 It is well to bear in mind that the descent, aliena- 
 tion and transfer of real estate are controlled by the 
 law of the jurisdiction where it is situated. 
 
 Where a person has property, especially real 
 estate, in a state or country other than his own, the 
 following suggestions are pertinent: His attorney 
 should ascertain whether the laws of the foreign 
 state or country provide for the allowance of a for- 
 eign will. It may be said that they generally do. 
 Proof of such foreign wills is very common in this 
 country. For example, the will of a citizen of New 
 Jersey, who owns real estate in Illinois, is 'duly 
 proved in New Jersey. Then a certified copy of the 
 will is proved in Illinois; otherwise it would not be 
 possible to transfer the real property in that state. 
 
 Here it should be noted that, where real estate so 
 situated in a jurisdiction other than that of the testa- 
 tor is given specifically, the attorney should ascertain 
 the law of that jurisdiction relative to such a devise.
 
 8 MODERN AMERICAN LAW LECTURE 
 
 For example, a Massachusetts testator once devised 
 valuable real estate in New York City in trust. After 
 the will had been proved in New York, the devise was 
 declared void as it violated New York law. The 
 Massachusetts lawyer who drew the will should have 
 submitted it before execution to a New York lawyer 
 so that it might be drawn conformably to the laws 
 of both states. 
 
 CAPACITY TO MAKE A WILL AND DANGER OF 
 BREAKING IT 
 
 Every person twenty-one and of sound mind, and 
 in some places a woman of eighteen, may make a will. 
 The attorney, however, should be vigilant as to mat- 
 ters of fraud, undue influence, mistake and sound- 
 ness of mind. There is a general impression that a 
 person of advanced age cannot make a will. The im- 
 pression is wrong. The question is one of the testa- 
 tor's mental capacity. In an effort to break a 
 woman's will a judge charged a jury as follows: 
 
 "Soundness of mind, such as will enable a person, under the 
 statute, to make a will, has relation to the business to be trans- 
 acted, namely, the disposition of her property by will. Her 
 mind must have been sound with reference to whatever is 
 involved in this transaction; that is to say, she must have been 
 able to understand, and carry in her mind, in a general way, 
 the nature and situation of her property, and her relations to 
 those persons who are about her; to those who would naturally 
 have some claim to her remembrance ; to those persons in whom, 
 and those things in which, she has been mostly interested. She 
 must have been capable of understanding these things, and the 
 nature of the act she was doing, and the relation in which she 
 stood to the objects of her bounty, and to those who ought to 
 be in her mind on such an occasion, and free from any delusion
 
 HOW TO PREPARE A WILL 9 
 
 which was the effect of disease, and which would or might lead 
 her to dispose of her property otherwise than she would have 
 done if she had known and understood correctly what she was 
 doing. All the testimony, covering the whole later portion of 
 her life, as to her relations and degree of intimacy with her 
 brothers and sisters and nephews and nieces ; as to what she said 
 and what she did; as to her peculiarities, if you find that she 
 had any ; as to her disposition and temperament, her griefs and 
 bereavements, her attacks of sickness, whatever you may find 
 them to have been, her habits and manners ; as to what you may 
 find that she was not able to do, and what she was able to do, 
 may be considered so far as they will aid you in determining 
 her condition of mind on (date of the will). Age is not of itself 
 a disqualification, but it excites vigilance to see if it is accom- 
 panied with incapacity. Disease is not itself a disqualification, 
 but all infirmities awaken caution to see if mental capacity is 
 impaired or gone." 
 
 It is the common belief that wills are easily broken. 
 This is an error. Attempts are frequently made, but 
 are not often successful. The reasons for breaking 
 a will generally assigned are unsoundness of mind, 
 referred to in the judge's charge given above, and 
 undue influence. The test in the case of undue in- 
 fluence is whether or not the testator was an abso- 
 lutely free agent. The influence may be exerted by 
 one who benefits by the will or by a third person. 
 The important facts are the condition of the testa- 
 tor's mind as to soundness and its susceptibility to 
 improper counsel and persuasion ; what is done and 
 said in preparing the will as bearing on motive, dis- 
 position, secrecy, etc., and the method employed by 
 the influencing party; the will itself, that is, its 
 character and provisions, whether unreasonable and 
 unjust, always bearing in mind the relations existing 
 between the testator and his relatives and benefici-
 
 10 MODERN AMERICAN LAW LECTURE 
 
 aries ; statements made by the testator showing that 
 he was unduly influenced and statements made by the 
 interested party showing the part he took in the 
 transaction, and lastly the existence of confidential 
 relations between the testator and the person alleged 
 to have exerted the undue influence. 
 
 Physicians should be very careful as to giving ad- 
 vice to patients in the preparation of their wills, and, 
 indeed, should give no advice at all. There is no 
 objection to a person's saying to one about to make 
 his will, "I wish you would give me a legacy in your 
 will." Beyond this it is not safe to go. 
 
 There is a method resorted to to ascertain what a 
 will means, which is often incorrectly regarded as 
 an attempt to break a will. This is what is called 
 construing a will, not breaking it. For example, a 
 question arises as to the meaning of the will ; that is, 
 the language is not clear. In the case of a trust, for 
 example, births, deaths or the happening of events 
 since the testator's death may have interfered with 
 his intention so that the trustee is doubtful how to 
 proceed. In such case the trustee files a petition 
 requesting the court to instruct him, and the court 's 
 instructions become in reality a part of the will. 
 
 HOW WILLS DIFFER FROM OTHER DOCUMENTS 
 
 A testator may like to know how a will differs from 
 obligations, such as contracts. 
 
 There is no contractual relation in the case of a 
 will. It merely provides for gifts, and the legatees 
 generally are not aware of the testator's bounty until 
 the will is opened after his death.
 
 HOW TO PREPARE A WILL 11 
 
 Contracts generally take effect immediately; but 
 a will does not take effect until the testator's death. 
 It is evident that a man's property may greatly fluc- 
 tuate in value between the time of making his will 
 and his decease. 
 
 Many contracts, especially deeds, mortgages, etc., 
 are recorded and hence are open to inspection; but 
 the will is generally kept secret during the testator's 
 life. A disclosure of its contents is gratuitous on his 
 part. 
 
 The obligations of a contract must be observed 
 by the parties thereto, but the testator may revoke 
 his will at any time by destroying it. 
 
 Contracts deal with specific things and pertain in 
 most cases to only a part of a man's estate. Nine- 
 teen wills out of twenty dispose of a man's entire 
 estate. 
 
 The language used in framing contracts is nearly 
 always exact and definite. A will may be drawn in 
 the loosest way and obscure language may be used. 
 Poorly constructed wills have caused boundless dis- 
 appointment and discontent and have entailed great 
 expense. 
 
 In the case of the parties to most contracts there 
 is no kinship ; in the case of a will the domestic rela- 
 tions are generally involved, especially when the 
 legatees are of the testator's own blood. 
 
 Unfortunately a will often contains irrelevant and 
 extraneous matter such as reference to the testator's 
 infirmities and eccentricities and allusions in a spite- 
 ful way to certain individuals and even friends. This 
 is unwise and sure to lessen respect for the testator's 
 memory.
 
 12 MODERN AMERICAN LAW LECTURE 
 
 A contract is generally carried out by the parties 
 to it ; a will requires a general agent called an execu- 
 tor. It is to be noted that a written power of attorney 
 which one gives while living is an authorization to 
 the attorney to do some particular thing, but the 
 power conferred upon an executor is to dispose of 
 the entire estate given by the will. 
 
 After a contract has been fully carried out it is of 
 no value, but after a will has been proved it is of 
 great value, because it becomes a matter of record, 
 and often title to real estate depends upon it. 
 
 Rules of construction in the case of contracts and 
 wills differ, being more liberal in the case of wills. 
 It is said as to wills, " Where two clauses or gifts are 
 irreconcilable, so that they cannot possibly stand 
 together, the clause or gift which is posterior in local 
 position shall prevail, the subsequent words being 
 considered to denote a subsequent intention." It is 
 said as to contracts, " Where there are two clauses in 
 a contract, so totally repugnant to each other that 
 they cannot stand together, the former shall be re- 
 ceived and the latter rejected/ 7 
 
 DIFFERENT KINDS OF WILLS 
 
 The advisable will is the one in the ordinary form, 
 but a few exceptional wills may be mentioned. 
 
 A nuncupative will is one made by a soldier in 
 service or by a sailor at sea. The will is declared 
 orally by the testator, while in anticipation of death, 
 before witnesses and is afterwards reduced to writ- 
 ing. Such wills are rare. The author has yet to learn 
 of one so declared during the great war. 
 
 A contingent will is made to take effect on a con-
 
 HOW TO PREPARE A WILL 13 
 
 tingency, and, if the contingency does not happen, 
 the will is not admitted to probate. Such a will is, 
 of course, not advisable. 
 
 Sometimes a party for a certain consideration 
 agrees to make a will in favor of another party. Some 
 difficulty may be encountered in prevailing upon a 
 court to uphold such an agreement. Such wills are 
 also not to be encouraged. 
 
 There have been a few cases of mutual wills, and, 
 while the law upon the subject is meagre, it is said, 
 "The doctrine of the principal text- writers seems to 
 be that, when a fair and definite agreement has been 
 entered into between two persons to make mutual 
 wills, and such wills have been duly executed, neither 
 can revoke his will without giving notice to the other 
 of such revocation. The most famous instance of a 
 mutual will arose in Massachusetts many years ago 
 and was known as the Howland Will Case. It was 
 claimed by the niece that she and her aunt signed 
 a mutual will, and, on the death of the aunt, this 
 will was contested. A large estate was involved but 
 no new law points were decided, as the case was 
 eventually dropped. If A and B desire to make 
 mutual wills the best way to proceed is as follows: 
 Let A make a will giving all his property to B and 
 let B make a will giving all his property to A. If, 
 for example, A dies first, B will take A's estate under 
 his will. Then B should destroy his own will as it 
 gives his property to a deceased person and is no 
 longer of any effect or value. 
 
 In some states holographic wills are permitted. A 
 holographic will is one entirely written, dated and 
 signed by the hand of the deceased.
 
 14 MODERN AMERICAN LAW LECTURE 
 
 The most important of all testaments next to the 
 will itself is the codicil. It is sometimes called a lit- 
 tle will. A testator may make any number of codicils. 
 It is authentic that a testator in England once made 
 thirty-three. Codicils are often dangerous because 
 they are likely to conflict with the will and lead to 
 confusion. It is often said that it is better to re- 
 write the entire will and not resort to a codicil. This 
 is generally true, but an exceptional case is where 
 there is apprehension that the testator's faculties 
 have become impaired since making the will and 
 there is a question whether he now has full testament- 
 ary capacity. If a codicil is executed and later de- 
 clared void on account of unsoundness of mind, the 
 will, made when the testator was in vigorous condi- 
 tion, will stand. 
 
 A codicil should state that it confirms "the will in 
 all its provisions save as changed by this codicil." 
 Even then care should be exercised to avoid ambigui- 
 ties. For example, if a legacy of five thousand dol- 
 lars is given to A in the will and another legacy of 
 three thousand dollars is given to him in the codicil 
 and no words are used to show the testator's inten- 
 tion, A will take eight thousand dollars in all. In 
 such a case the will should clearly state whether the 
 second legacy is to be added to the first, or whether 
 it is to be substituted for the first so that the legatee 
 will take only three thousand dollars. 
 
 Where powers of sale are given to executors or 
 trustees in the will and one dies and a successor is 
 named in the codicil without conferring upon him the 
 powers of sale given the two named in the will, it 
 is clear that both executors or trustees cannot act
 
 HOW TO PREPARE A WILL 15 
 
 under the powers given in the will. In a few well 
 chosen words the executor or trustee named in the 
 codicil may be invested with the same powers con- 
 ferred on the executor or trustee named in the will. 
 
 As the will and codicil are in a certain sense one, 
 the codicil should be securely annexed to the will. 
 Suppose it is not so annexed and the will cannot be 
 found and there is no certified copy thereof, the 
 proof of the codicil will leave matters in a very 
 unsatisfactory condition. 
 
 WHO MAY BE A DEVISEE OR LEGATEE 
 
 The word " devise" usually applies to real and 
 "legacy" or "bequest" to personal estate, but the 
 words are used interchangeably. 
 
 It is a general rule that nearly any one may take 
 under a will. If a person is an infant or insane or 
 otherwise incompetent a guardian will, of course, 
 be appointed. 
 
 Nearly everywhere now a married woman is put 
 upon the same footing as if she were single. Never- 
 theless forms like the following are still common both 
 in the case of married and unmarried women : 
 
 I give to my daughter A jive thousand dollars to 
 be paid to her upon her separate receipt. 
 
 The legacies given in this will to my daughters, 
 whether married or unmarried, shall be for their 
 separate use f independently of any other person or 
 persons. 
 
 Aliens may take personal property by bequest and 
 in many states real property by devise. Indeed 
 many treaties of this country with foreign countries
 
 16 MODERN AMERICAN LAW LECTURE 
 
 provide that the citizens and subject of either may 
 dispose of both personal and real estate within the 
 jurisdiction of the other. The following from the 
 treaty with France is a good illustration: 
 
 "In all the States of the Union whose existing 
 laws permit it, so long and to the same extent as 
 the said laws shall remain in force, Frenchmen shall 
 enjoy the right of possessing personal and real prop- 
 erty by the same title and in the same manner as the 
 citizens of the United States. They shall be free to 
 dispose of it as they may please, either gratuitously 
 or for value received, by donation, testament or 
 otherwise, just as those citizens themselves; and in 
 no case shall they be subjected to taxes on transfer, 
 inheritance, or any others different from those paid 
 by the latter, or to taxes which shall not be equally 
 imposed. 
 
 "As to the States of the Union by whose existing 
 laws aliens are not permitted to hold real estate, the 
 President engages to recommend to them the pass- 
 age of such laws as may be necessary for the purpose 
 of conferring this right. 
 
 "In like manner, but with the reservation of the 
 ulterior right of establishing reciprocity in regard to 
 possession and inheritance, the Government of 
 France accords to the citizens of the United States 
 the same rights within its territory in respect to 
 real and personal property and to inheritance, as are 
 enjoyed there by its own citizens." 
 
 In nearly all jurisdictions corporations may take 
 under wills; in a few they are disqualified unless 
 specially authorized to take. The amount of prop- 
 erty they may hold is in some states fixed by statute.
 
 HOW TO PREPARE A WILL 17 
 
 Municipal corporations are generally authorized 
 to take legacies and devises, and the same is said of 
 the United States. 
 
 WHAT MAY OR MAY NOT BE BEQUEATHED OR 
 DEVISED 
 
 In a general sense a testator may dispose of all 
 his property. The following considerations are 
 worthy of notice. 
 
 After-Acquired Property. Everywhere now a 
 residuary clause in a will conveys not only the real 
 and personal property the testator owned when the 
 will was made, but any afterwards acquired by him. 
 
 Contingent Interests. These may be bequeathed. 
 For example, property is given to A for life and at 
 his death to B absolutely. B may bequeath his in- 
 terest, although A is living at the time of B 's death, 
 but the person to whom B bequeaths the property 
 cannot have it in possession until A dies. 
 
 Property Which the Testator Does Not Own. If 
 the testator has property belonging to others and 
 it is not distinguishable from his own, the owner 
 may have to come in as a general creditor. It may 
 be advisable to insert in the will a disclaimer of title 
 as in the following form: 
 
 "I have in my possession the following securities 
 belonging to my wife (full description). It is prob- 
 able that with my wife's consent I may dispose of 
 some of the above securities and reinvest the pro- 
 ceeds. I therefore direct my executor to transfer 
 to my said wife as her separate estate all the above 
 named securities or those subsequently purchased." 
 
 . Deposits in Savings Banks. A loose practice pre-
 
 18 MODERN AMERICAN LAW LECTURE 
 
 vails in some places of permitting a person to deposit 
 money in a savings bank in his own name, as trustee 
 for another, in order to evade the law limiting the 
 amount of deposit from any one person. There has 
 been much litigation on this subject. The attorney 
 should ascertain from the testator whether he lias 
 entered into any such trusts. 
 
 Good-will of a Business. This may be bequeathed. 
 
 Power of Appointment. If a will which creates 
 a trust for A provides that the principal, after the 
 death of A, shall go to B or to any person whom B 
 may name and appoint by an instrument in writing, 
 this power so to appoint may be executed in B 's will. 
 
 Policies of Life Insurance. If policies on the life 
 of the testator are made payable to him, he may, of 
 course, bequeath the proceeds. 
 
 Heirlooms. If a testator desires that some article 
 of personal or domestic value shall remain in the 
 family for a considerable period, the best method 
 is to attach to the bequest an instruction or request 
 as in the following form: 
 
 "I give my son A my gold watch, which was be- 
 queathed to me by my father. I desire my said son 
 to dispose of the same in such manner, if possible, 
 that it may be held in the family during the succeed- 
 ing generation, but I impose no restrictions." 
 
 Survival of Actions. Much litigation has been 
 occasioned by contracts failing to make clear whether 
 a right of action does or does not survive. An at- 
 torney should ask a business man as to his outstand- 
 ing obligations, for, if it appears that a right of 
 action does or does not survive, he may desire to 
 modify his existing contracts.
 
 HOW TO PREPARE A WILL 19 
 
 Testator's Body, Monuments and Burial Lot. A 
 testator may give instructions in his will as to crema- 
 tion, but, if he desires to give directions as to the dis- 
 position of his body by burial, he should put them in 
 a paper to be opened immediately after death and 
 not in the will, as the will is generally read after the 
 burial. 
 
 While in most states statutes provide that a rea- 
 sonable amount expended for a monument may be 
 allowed, testators often prefer to cover the matter in 
 their wills. The testator should state in his will the 
 date of his birth ; otherwise the executor may be put 
 to trouble in ascertaining the date. 
 
 Form. I direct my executor to erect over my re- 
 mains in my lot No. 19 in the Rural Cemetery in, etc., 
 a suitable stone inscribed with my name and the dates 
 of my birth and death. I was born on the ninth day 
 of August, 1847. I authorize him to expend for the 
 above purpose a sum not exceeding three hundred 
 dollars. 
 
 Where statutes so authorize money may be de- 
 posited with municipal authorities for the perpetual 
 care of a burial lot. 
 
 Form. I direct my executor to place a suitable 
 tombstone at my grave in the A Cemetery of, etc., not 
 to exceed two hundred dollars in value, and to pay 
 the proper board of municipal authorities an equal 
 sum, the net income of which shall be expended for 
 the perpetual care and preservation of my burial 
 lot in said cemetery. 
 
 Residence of the Testator as a Home for the Fam- 
 ily. Often testators provide that the home shall be 
 maintained for the benefit of the entire family. Gen-
 
 20 MODERN AMERICAN LAW LECTURE 
 
 erally such provisions for an open home should be 
 merely the expression of wishes or requests. 
 
 Form. It is my special wish that my said wife 
 shall keep open the homestead devised to her above 
 for the enjoyment and accommodation of all of our 
 children and grandchildren, who may desire from 
 time to time to visit her. 
 
 Personal Estate Subject to Incumbrance. In the 
 absence of any expressed intention in the will to the 
 contrary, personal property specifically bequeathed 
 is to be exonerated from all incumbrances placed 
 upon it by the testator. For example, stock pledged 
 for a debt. The attorney should bring this matter 
 to the notice of the testator. 
 
 Carrying on Testator's Business. If it is deemed 
 best to give executors power to carry on the testator's 
 business, the authority should be limited to as brief a 
 period as is consistent with settling the estate. 
 
 Form. I authorize and empower my executors 
 to continue the business in which I am engaged at 
 the time of my decease for a period long enough to 
 liquidate the same; and to this end I confer upon 
 them all power in the premises, including that of 
 giving and renewing promissory notes. 
 
 Pews. Where pews are made personal property 
 by statute they may be bequeathed. 
 
 Dumb Animals. Humane testators often make 
 provision as to the care, custody, etc., of dumb 
 animals. 
 
 Form. I give to the Society for the Prevention 
 of Cruelty to Animals of, etc., all the living dumb 
 animals I may possess at the date of my decease to be
 
 HOW TO PREPARE A WILL 21 
 
 disposed of in the most humane manner by sale or 
 gift or by depriving them of life. 
 
 Various Bequests and Provisions. Sometimes a 
 testator inserts in his will a provision to the effect 
 that a certain conveyance of real estate made by him 
 during his life is confirmed, as, "I hereby ratify 
 and confirm a certain conveyance to A B made by 
 me by deed dated, etc., and recorded, etc." 
 
 Sometimes it is provided that if one provision in 
 the will is declared void, other provisions shall not 
 be affected thereby, although perhaps such precau- 
 tion is unnecessary. 
 
 Form. If any provision in this will for any lega- 
 tee shall prove to be invalid, I expressly declare that 
 such invalidity shall in no wise affect or impair any 
 other provision or provisions of this will or of any 
 codicil hereto. 
 
 It is advisable that all bequests should be definite 
 and certain. Sometimes a testator gives a person 
 a legacy, which, added to the property that person 
 already possesses, will make a certain amount. Such 
 a provision is too indefinite, yet it sometimes appears 
 as in the following form: 
 
 "I give A a sum of money, which, when added to 
 the property she already possesses, will amount to 
 five thousand dollars. " 
 
 Often a will contains a direction as to purchasing 
 some token of remembrance for a friend of the testa- 
 tor. 
 
 Form. I give my friend A one hundred dollars 
 as a token of kindly remembrance, and I trust that 
 she will purchase with the same some memorial which 
 will serve as a reminder of my esteem.
 
 22 MODERN AMERICAN LAW LECTURE 
 
 Often an ante-nuptial agreement ; that is, a written 
 agreement entered into by a man and woman before 
 marriage, provides for the giving up by the wife of 
 all interest in both the real and personal estate of 
 the husband in consideration of a certain sum to 
 be paid to her after his death. In the husband's will 
 should appear a provision like the following : 
 
 "I direct my executors to pay to my wife A the 
 sum of twenty thousand dollars in performance of 
 the ante-nuptial contract made between us on the 
 10th day of, etc., in lieu of dower and all other rights 
 whatever she may have in and to my real and per- 
 sonal estate." 
 
 If a will duly executed incorporates in itself, by 
 reference, any outside document or paper, such out- 
 side document or paper so referred to, if in existence 
 at the time of the execution of the will and clearly 
 identified as the document or paper referred to 
 therein, takes effect as part of the will. 
 
 This is a dangerous provision. 
 
 FORM OF THE WILL 
 
 All that is necessary in a will is that it discloses the 
 intention of the testator as to this disposition of 
 his property. The will may be irregular in form and 
 the language obscure and inartificial, and the instru- 
 ment may be written on waste paper and with a pen- 
 cil, but if properly executed and witnessed it may be 
 proved as will. It is for this reason that great care 
 should be taken in the preparation of the document 
 and an attorney should be employed to draft it. The 
 probate of a will merely establishes its execution. 
 The meaning of the will is another question.
 
 HOW TO PREPARE A WILL 23 
 
 If the will is in hand writing care should be given 
 to chirography, for if it is necessary to decipher it 
 there may be a difference of opinion as to the mean- 
 ing of words and phrases. Most wills are now type- 
 written, but the very convenience of this method 
 opens the way to fraud and forgery. To take away 
 the inducement of any interested person, who may 
 get hold of the will, to subtract a page or two and 
 insert a substitute or substitutes the testator should 
 sign every page of his will. 
 
 Care, too, should be taken in the matter of punctua- 
 tion : In recent years in Massachusetts the punctua- 
 tion of a sentence of a statute upset for a while the 
 business of a great industry. A New York judge has 
 said, " Punctuation may perhaps be resorted to when 
 no other means can be found of solving an ambiguity ; 
 but not in cases where no real ambiguity exists, ex- 
 cept what punctuation itself creates." 
 
 There is no regular form for the commencement 
 of a will. It should, however, be brief. 
 
 The following are common forms : 
 
 Know all men by These Presents, That I, A. B., 
 of, etc., being of sound and disposing mind and mem- 
 ory, do make this my last will and testament, revok- 
 ing all wills and codicils by me at any time heretofore 
 made. 
 
 Know All Men by These Presents, that I, A. B., 
 of, etc., do make this my last will and testament. 
 
 This is the last will and testament of me, A. B., 
 of, etc. 
 
 I, A. B., of, etc., do make, publish and declare the 
 following as and for my last will and testament. 
 
 Be it remembered that I, A. B., of, etc., do make
 
 24 MODERN AMERICAN LAW LECTURE 
 
 this my last will and testament, intending hereby to 
 dispose of all the property over which I shall at my 
 decease have a right of disposition, by appointment, 
 will, or otherwise. 
 
 I, A. B., of etc., hereby revoke all testamentary 
 dispositions heretofore made by me and declare this 
 to be my last will which I make this tenth day of, 
 etc. 
 
 In the name of God, Amen : I, A. B., of, etc., be- 
 ing of sound and disposing mind and memory, and 
 mindful of the uncertainty of life, do make, publish 
 and declare this to be my last will and testament, in 
 manner following, that is to say : 
 THE EIGHTS OF HUSBAND, WIFE AND CHILDREN 
 
 While a single man or woman is unfettered in dis- 
 posing of his or her property, a married man is in 
 nearly every jurisdiction subject to restraints as to 
 children and the issue of a deceased child, and as to 
 his wife. 
 
 In most states if the testator does not provide for 
 his children, or for the issue of a deceased child, in 
 his will they will share in his estate as they would 
 have shared if he had left no will, unless provision 
 was made for them by him during his lifetime, or 
 unless his failure to provide for them in the will was 
 intentional and not occasioned by accident or mis- 
 take. The will should clearly express his intention. 
 In England the disinheritance of a child or the issue 
 of a deceased child is indicated by giving a shilling. 
 In this country the method is to give a nominal sum 
 or to use language showing that the testator has not 
 forgotten his children or the issue of deceased chil- 
 dren.
 
 HOW TO PREPAEE A WILL 25 
 
 Forms like the following are frequently used : 
 
 I give to my only child A and to my only grand- 
 child B, who is the son of my deceased daughter C, 
 the sum of one dollar each. 
 
 I give to my only living children, A, B and C, 
 the sum of five dollars each, and make no further pro- 
 vision for them as I am sure that their mother will 
 provide for their education and support. 
 
 I purposely give no legacies in this will to my 
 only children, A, B, C and D, and mention them here- 
 in to show that I have not forgotten them. 
 
 I intentionally exclude from any interest in my 
 estate my daughters A and B and my son C and also 
 any other child or children that may be born to me 
 before or after my decease. 
 
 A testator often inserts a statement assigning rea- 
 sons for a distinction in the treatment of children or 
 grandchildren. 
 
 Having given my son A property equal to the 
 amount he would take, if I left no will, I make no 
 provision for him herein. 
 
 The gift to my daughter A of double the amount 
 given to my son B is due to the fact that I have ex- 
 pended a great deal of money in my son's behalf, but 
 have done nothing for my daughter beyond provid- 
 ing for her education and support. 
 
 Now as to wife. 
 
 Failure properly to provide for the wife has occa- 
 sioned boundless trouble and expense. In several 
 states, like Arizona, California, Louisiana, New Mex- 
 ico, Texas and Washington the law provides for com- 
 munity property; that is, property owned by the
 
 26 MODERN AMERICAN LAW LECTURE 
 
 husband and wife. The following provisions are 
 taken from California wills : 
 
 "All the property, real, personal and mixed, of 
 which I may die possessed, is the common property 
 of my wife and myself, the same having been ac- 
 quired since our marriage, and upon my death, she 
 surviving, she is entitled, in addition to the devises 
 herein contained, to the undivided one-half of all 
 thereof. " 
 
 "I hereby declare that all of my property and 
 estate has been acquired since my marriage with my 
 beloved wife, A B, and is community property of 
 myself and my said wife." 
 
 Nearly everywhere it is dangerous to give either 
 husband or wife less than he or she would be entitled 
 to, if there were no will. If husband or wife is given 
 the right of waiving the other's will, such waiver may 
 work confusion among the other provisions of the 
 will. The rights of a wife in the property of her 
 husband are variously termed dower, distributive in- 
 terest, thirds, allowances, rights of succession, and 
 widow's award. The rights of a husband in the prop- 
 erty of the wife are called curtesy, distributive in- 
 terest, etc. 
 
 Much litigation has been caused by a husband not 
 making sufficient provision for the wife. When am- 
 ple provision is made for the wife forms like the fol- 
 lowing may be used. 
 
 The provision in this will for my wife is in lieu 
 of her statutory or other claims to my estate. 
 
 The bequests and devises herein to my wife are 
 in lieu of dower, widow's award and all other pro- 
 visions for her under the laws of this or any other
 
 HOW TO PREPARE A WILL 27 
 
 state where any of my property real or personal may 
 be situated. 
 
 The provision for my wife in this will is in lieu 
 of dower and widow's rights. 
 
 The provisions for my wife in this will are in 
 lieu of her dower and in bar of her distributive share 
 of my estate, her year's allowance and all other rights 
 given her by statute or otherwise in my real and per- 
 sonal estate. 
 
 As to a married woman disposing of her property 
 by will. The disabilities imposed by the law of cover- 
 ture upon married women have been largely removed, 
 and in many states the married woman is as free 
 as her husband to dispose of her property by will. 
 It is well, however, carefully to examine the statutes 
 and decisions of the jurisdiction, as the old rule that 
 she may dispose of property settled upon her sole 
 and separate use, but not her general estate, may in 
 a few cases obtain. There are also statutes in many 
 places which forbid the cutting off of the husband 
 without his consent. Attention is called to the re- 
 marks just preceding as to the rights of a married 
 man to make a will, as most of the obligations are 
 likewise imposed upon a married woman. 
 
 DESCRIPTION OP REAL ESTATE CONDITIONS 
 
 If the will contains a residuary clause all the real 
 and personal estate not previously given away in the 
 will passes under it. When the devises and bequests, 
 however, are specific the description should be clear 
 and accurate. Thus in devising real estate it is ad- 
 visable to show to the attorney deeds and mortgages, 
 if any. Sometimes land is given, charged with the
 
 28 MODERN AMERICAN LAW LECTURE 
 
 Devises are frequently made to two or more as joint 
 payment of money, to a third person. This is not ad- 
 visable, as the charge on the land may cloud the title, 
 tenants or tenants in common. Such devises are not 
 to be encouraged as the holding of land by two or 
 more jointly often causes trouble. Besides it may 
 be difficult for one of the owners who desires to sell 
 to find a purchaser, as people do not care to purchase 
 land which they are to hold with others. 
 
 Real estate is frequently given to A for life and at 
 his death to B to be his absolutely. Such a devise 
 may be enlarged by making the remainder contin- 
 gent, as, "I give my house and lot of land, located, 
 etc., to A, for his life, and at his decease to the chil- 
 dren of A, then living, to be theirs absolutely." It 
 is plain that those who are to take the remainder 
 cannot be determined until A dies. 
 
 There is what is called an executory devise ; that is, 
 where an estate is given to A, but upon some future 
 event the estate is determined and then goes to B. 
 Where real estate is given other than directly to the 
 devisee the way is often open to litigation. 
 
 Real estate is often devised upon condition. Fre- 
 quently such a devise clouds the title. Conditions 
 are more common in the case of bequests of per- 
 sonalty. The following forms relate to both real and 
 personal property : 
 
 Payment of Legacies. If the time of payment of 
 a legacy is postponed it should appear whether the 
 legacy is to vest upon the testator's decease or 
 whether time is to be annexed to the gift. If the 
 legacy is to be paid to the legatee when, for example, 
 he is twenty-five and he dies before reaching that
 
 HOW TO PEEPAKE A WILL 29 
 
 age and the language is such that the legacy vests 
 in the legatee, the fund goes to his estate ; otherwise 
 to the testator's estate. 
 
 Forms. I give to my son A the sum of ten thou- 
 sand dollars, to be paid to him when he is twenty- 
 five years of age, the legacy to vest in A at the time of 
 my decease. 
 
 I give to A a legacy of five thousand dollars to be 
 paid to him at the age of twenty-one. If he dies 
 before that time the legacy shall fall into my residu- 
 ary estate. 
 
 If the period of payment of a legacy is thus defer- 
 red a provision may be inserted as to the investment 
 of the sum and the addition of income to the prin- 
 cipal. 
 
 Often a condition as to approval is imposed as 
 follows : 
 
 I give A a legacy of one thousand dollars to be 
 paid to him with interest when he is twenty-one, 
 provided he is worthy in the judgment of my execu- 
 tor to receive the same. Otherwise I give the legacy 
 with interest to B. 
 
 Legacy to Executor or Trustee. It is held that if 
 a legacy is given to an executor or trustee he may 
 not be entitled to it unless he qualifies. The intention 
 should be expressed. 
 
 I give my executor A a legacy of five thousand 
 dollars, to be paid to him whether he qualifies or 
 does not qualify as executor of this will in the pro- 
 bate court. This legacy is in addition to the com- 
 pensation he is entitled to for his services as execu- 
 tor. 
 . Restraint of Marriage. A legacy or devise given
 
 30 MODERN AMERICAN LAW LECTURE 
 
 on condition that the legatee does not marry is void ; 
 but if the gift is to A so long as she 1 does not marry 
 but, if she does marry, then to B, it is good. 
 
 I give and devise my farm, situated, etc., in the 
 town of, etc., to my wife A, so long as she remains 
 my widow. In the event of her marriage I give and 
 devise said farm to B. 
 
 A common way is to create a trust and make pro- 
 vision like the following : 
 
 "If my daughter A shall marry without the writ- 
 ten consent of B, her trustee or his successor in trust, 
 then the trust shall terminate and the entire estate, 
 discharged of all trust, shall go to C." 
 
 Restraint of Alienation. A condition that the de- 
 visee shall not alienate is void. Land cannot be thus 
 encumbered. 
 
 Conditions Not to Dispute Wills. It is very com- 
 mon now to write in a will a condition not to dis- 
 pute it. Of course this is a domestic consideration, 
 as only those who would profit by inheritance, if 
 there is no will, can dispute it. 
 
 Forms. If any legatee under this will contests the 
 probate thereof or, after it has been probated, inter- 
 feres by any court proceeding with the settlement of 
 my estate, then I declare void the legacy to such lega- 
 tee, and the same shall fall into the residuum of my 
 estate. 
 
 I declare that if either of my two sons shall dis- 
 pute the probate of this will in any court or by any 
 proceeding or call in question before any tribunal 
 the validity of any legacies given and provisions 
 made herein, then I revoke and declare void the
 
 HOW TO PREPARE A WILL 31 
 
 legacy or legacies given to said son, and the same 
 shall fall into the residuum of my estate. 
 
 I further declare that, if any attempt is made to 
 contest this will before any tribunal and proves un- 
 successful, my executors shall pay all the expenses in- 
 curred thereby, including reasonable compensation 
 to themselves in addition to that to which they are 
 otherwise entitled as executors. 
 
 Gifts to Servants, Employees, Etc. A legacy is 
 often given on condition that the legatee is in the 
 testator's employ at the time of his decease, or di- 
 rectly without any condition. The following are com- 
 mon forms : 
 
 I give and bequeath to each house and out-door 
 servant, who may be in my employ at the time of my 
 decease, the sum of five hundred dollars. 
 
 I give A as a recognition of faithful devotion to 
 my interests a legacy of one thousand dollars. 
 
 I give and bequeath to each person in my em- 
 ploy at the time of my decease a sum equal to his 
 or her salary for the year preceding that event. 
 
 I give my bookkeeper A a legacy of five thousand 
 dollars. If he die before me, I give the same to his 
 wife B. 
 
 If A is in my employ at the time of my decease, 
 I give him the sum of five thousand dollars. If he 
 die before me while in my employ and leave issue liv- 
 ing at the time of my decease, then I give the said 
 five thousand dollars to such issue to be equally 
 divided among them. 
 
 DESCRIPTION OF LEGATEES AND LEGACIES 
 Legatees. The attorney should take care that the
 
 32 MODERN AMERICAN LAW LECTURE 
 
 name of the legatee is absolutely correct in all cases, 
 whether individual, association, society or corpora- 
 tion. 
 
 The description of legatees not by name but as 
 " children, " "heirs," etc., is often a source of embar- 
 rassment. For example, A gives a legacy to B, "pro- 
 vided I leave no heirs," meaning children or issue. 
 At his death he leaves no children but has plenty of 
 heirs. Hence B takes nothing. The decisions upon 
 cases involving the ambiguous use of these words will 
 fill volumes. 
 
 If a gift is to youngest or oldest sons with nothing 
 more the question may arise whether is meant the 
 youngest or oldest son living at the time of the mak- 
 ing the will, or at the testator's death, or at some 
 future time. 
 
 Other words which have been used unskillfully are 
 "issue," "cousins," "next of kin," "descendants," 
 "family," "legal representatives," and "survivor." 
 If the words "wife" or "husband" are used with 
 nothing more they may apply to a second wife or hus- 
 band, when the first wife or husband is intended. 
 
 Description of Legacies. Wearing apparel, 
 watches, jewelry, etc., should be given directly. In- 
 stead of imposing conditions a request may be at- 
 tached as in the following form: 
 
 "I give to my wife A all my wearing apparel, 
 watches, jewelry and other personal effects. I trust 
 that she will reserve the articles she desires as keep- 
 sakes and distribute the rest among our children as 
 she may deem best. " 
 
 Household furniture should be explicitly de- 
 scribed, and, if it is intended to include personal
 
 HOW TO PREPARE A WILL 33 
 
 property in the stable or on the grounds, they should 
 be mentioned. 
 
 Form. I give and bequeath to my wife, A, all the 
 furniture in my house, No. 100 Grove Street, at the 
 time of my death, including my library, pictures, 
 statuary, paintings, bric-a-brac, plate, chairs, car- 
 pets, china, silver, crockery, cooking utensils, beds, 
 bedding, bookcases, linen, consumable stores and all 
 other portable articles, whether useful or orna- 
 mental ; and all my horses, harnesses, carriages and 
 their appurtenances, automobiles, farming stock, 
 supplies, tools, implements, hay and grain and all 
 other articles that may be in or about the stable or on 
 the grounds at the time of my decease. 
 
 Sometimes a testator provides that friends may 
 select from the furniture or from plate or jewelry 
 articles they may desire as keepsakes. Such a pro- 
 vision may give rise not only to discontent but to 
 quarrels. Any article intended for a friend should 
 be given outright. 
 
 It is well for a testator not to keep in his house 
 certificates of stock or other securities, for, unless 
 particularly mentioned, they may pass under a be- 
 quest of "all the personal property in my house at 
 the time of my decease." 
 
 The word "money" generally means real money 
 and bank deposits. Such a bequest as "all my 
 money" is not advisable, as the testator may spend 
 or invest the money in his lifetime. 
 
 SPECIFIC LEGACIES ABATEMENT 
 
 Specific Legacies. The gift of a sum of money, as 
 "I give A five hundred dollars," is general and is
 
 34 MODERN AMERICAN LAW LECTURE 
 
 payable out of the testator's general funds. A spe- 
 cific legacy specifies the particular thing as in the 
 following form: 
 
 "I give A my fifty shares of the People's National 
 Bank, of, etc., the certificate being numbered 1406, 
 meaning and intending the same as a specific legacy. " 
 
 The testator in his lifetime may dispose of the 
 fifty shares of the People's National Bank. In that 
 event A gets nothing. A testator may add to the 
 form just given the following provision : 
 
 "If at the time of my decease I am not the owner 
 of the said fifty shares of the People's National 
 Bank, then I give the said A in lieu thereof the sum 
 of five thousand dollars." 
 
 Suppose the testator has pledged the fifty shares 
 for his own debt and the will is silent on the subject. 
 Then A will call on the executor to pay the debt out 
 of the general funds of the estate. The executor 
 will have to do it, and A will receive the fifty shares 
 unencumbered. 
 
 If the specific legacy is of coupon bonds the testa- 
 tor may desire to provide that all overdue negotiable 
 coupons attached to the bonds shall go to the legatee. 
 
 A very important matter is what is called " abate- 
 ment," and this arises where the assets, after paying 
 the testator's debts, are not sufficient to pay all the 
 legacies. The general rule is that, in the case of de- 
 ficiency of assets, the general legacies (such as lega- 
 cies of sums of money) abate before specific legacies 
 and devises are resorted to. 
 
 If the testator has few debts and the residuary 
 clause in his will passes considerable property, there 
 is little probability that an abatement will be neces-
 
 HOW TO PREPARE A WILL 35 
 
 sary. If the testator suffers severe losses after mak- 
 ing his will, it is well to rewrite it provided it con- 
 tains no provision as to abatement. 
 
 The following are forms which provide for abate- 
 ment: 
 
 If my estate is insufficient to pay all bequests 
 given herein, then the bequest to my said wife shall 
 be paid in full and the other legacies shall abate pro- 
 portionately. 
 
 If my estate shall be insufficient to pay all the 
 legacies in full, then those given to my brothers, 
 sisters, friends and servants, shall abate ratably to 
 the end that my wife and children shall enjoy the 
 provisions made for them herein without any deduc- 
 tions or abatement. 
 
 A perfect form of will is that which gives the en- 
 tire estate in shares. Hence there can be no abate- 
 ment as the legatees all share an increase in value 
 and all bear a shrinkage, if any. The advisability of 
 bequeathing property in shares cannot be too 
 strongly urged. 
 
 Form. I direct that all the property of which I 
 shall die seized and possessed and to which I may 
 be entitled at the time of my decease and wherever 
 the same may be situated shall be divided into six 
 equal shares. I give two of said shares to my wife, 
 A ; one of said shares to my daughter B ; one of said 
 shares to my son, C ; one of said shares to my son D ; 
 and one of said shares to my two grandchildren E 
 and F to be equally divided between them. 
 
 LEGACY TO DEBTOR OR CREDITOR OF TESTATOR 
 Legacy to Debtor. If a testator gives a legacy to
 
 36 MODERN AMERICAN LAW LECTURE 
 
 one who owes him money it should clearly appear 
 whether the testator intends to cancel the debt in 
 addition to the legacy. 
 
 Forms. I give A the sum of ten thousand dollars 
 and I declare that all debts now due me or that here- 
 after may be due me from said A, at the time of my 
 decease are hereby cancelled. 
 
 I give A five thousand dollars and expressly de- 
 clare that it is not my intention to cancel any claim or 
 claims I may have against him at the time of my de- 
 cease. 
 
 A testator often provides for cancelling debts 
 where no legacy is given the debtor as follows : 
 
 I direct my executor to cancel all claims of one 
 hundred dollars or less, including unpaid interest, 
 which I may hold against any person or persons at 
 the time of my decease. 
 
 I give and devise to my son A the house and land 
 (description) which he now occupies as my tenant, 
 and I release him from the payment of all rent, taxes, 
 repairs, insurance and any other charges accruing 
 at the time of my decease. 
 
 I direct that all loans to my daughter A existing 
 at the time of my decease, including interest due 
 thereon, shall be discharged and cancelled. I direct 
 my executor to deliver to her all notes held for such 
 loans and the stocks and bonds held to secure the 
 same. 
 
 It is common for a testator to provide that debts 
 due him from children, as evidenced by note, book 
 account, etc., be regarded as advancements made them 
 and to be deducted from the shares given them in the 
 will.
 
 HOW TO PREPARE A WILL 37, 
 
 A child may say that he doesn't owe the alleged 
 debt or that it is outlawed and cannot be collected. 
 These objections cannot avail. The intention of the 
 testator is paramount, and the testator may provide 
 as he chooses. 
 
 Forms. I declare that all advances of money to 
 my children as appear by charges on my books at 
 the time of my decease shall be deducted from the 
 shares bequeathed to such children in this will and 
 that no interest shall be charged or collected upon 
 such advances. 
 
 All advances or loans made by me to any legatee 
 under this will unpaid at the time of my decease are 
 hereby cancelled and discharged; and this cancella- 
 tion and discharge applies to all interest due on 
 said advances or loans. 
 
 All money due me at the time of my death from 
 any of my children whether by promissory notes, 
 book accounts or in any other way, shall not be en- 
 forced against said children but shall be regarded 
 as gifts, and all evidences of such indebtedness 
 signed by my children shall be cancelled and given 
 up to them. 
 
 Legacy to a Creditor. It is a general rule that, if 
 a testator gives a legacy to a creditor and says noth- 
 ing more, the legacy is regarded as a bounty and not 
 as a payment of the debt. However, it is said that 
 "a legacy, exactly corresponding in amount and 
 time of payment to an existing debt of the testator 
 to the legatee, and given by a will which contains no 
 provision indicating a different intention, is to be 
 presumed to be in satisfaction of the debt and not 
 in addition thereto."
 
 38 MODERN AMERICAN LAW LECTURE 
 
 The testator should make his intention clear. 
 
 Form. I give A the sum of one thousand dol- 
 lars in full satisfaction of my note to him of five hun- 
 dred dollars dated etc., payable etc., and all interest 
 which may be due thereon when this legacy is paid, 
 I direct my executor to pay said legacy to said A 
 only upon the condition that said notes shall be 
 cancelled by said A or his legal representatives and 
 delivered to my said executor. 
 
 PAYMENT OF AND INTEREST UPON LEGACIES 
 
 Statutes generally declare the time when legacies 
 shall be paid provided there is no provision as to 
 payment in the will. A direction to pay a legacy 
 "as soon as convenient " is too indefinite and should 
 be avoided. 
 
 A testator often puts a provision in his will direct- 
 ing his executor not to pay legacies until the period 
 (one year or more as the case may be) has elapsed 
 from the probate of the will, within which creditors 
 must begin actions against the estate. 
 
 The following forms are given as illustrations: 
 
 I direct my executors not to pay legacies until 
 three years have elapsed from the proving of this 
 will, and the legatees are then to receive the exact 
 amount of their legacies without interest thereon. 
 
 I direct that all legacies given herein shall be paid 
 as soon as my executors can legally do so with in- 
 terest from the day of my death at the rate of five 
 per cent per annum. 
 
 I direct that all legacies given in this will shall 
 be paid in two years from the date of proving the 
 same. The pecuniary legacies are to be paid with
 
 HOW TO PREPARE A WILL 39 
 
 interest at the rate of five per cent per annum; and 
 the specific legacies of stock and bonds are to be 
 paid with an amount equal to the dividends collected 
 and coupons cashed by my executors. 
 
 A convenient way of paying pecuniary legacies is 
 by distribution in kind, that is by paying in property 
 and not in money. 
 
 Forms. In paying pecuniary legacies given by 
 this will I direct my executors to transfer and de- 
 liver to the legatees securities, in which my personal 
 estate is invested, at their market value. 
 
 As my estate consists largely of bonds, I authorize 
 my executors in their discretion to pay the pecuniary 
 legacies given in this will in bonds or partly in bonds 
 and partly in money, the legatees to take such bonds 
 at their market value. 
 
 . In most states there are now statutes as to the 
 taxation of legacies and distributive shares or of 
 collateral legacies and successions. 
 
 The testator should be asked whether or not he 
 desires the legatee to bear the burden of the tax. 
 Forms like the following are frequently found in 
 wills : 
 
 I direct that all legacy and succession taxes shall 
 be paid out of the legacies themselves. 
 
 The amount of all taxes on legacies and devises 
 given by this will shall be paid from the general 
 funds of my estate. 
 
 I direct that the inheritance tax imposed upon the 
 legacy of ten thousand dollars to A shall be paid out 
 of and deducted therefrom, but that the legacy of 
 five thousand dollars to B shall be paid to him in 
 full, and that the inheritance tax imposed thereon 
 shall be paid out of the general funds of my estate.
 
 40 MODERN AMERICAN LAW LECTURE 
 
 LAPSED DEVISES AND LEGACIES RESIDUARY 
 CLAUSE REVOCATION 
 
 Lapsed Devises and Legacies. The general rule 
 is that, if a legacy or devise is given to A. and he dies 
 before the testator and no provision is made on the 
 subject, the legacy or devise lapses, that is, falls into 
 the residuary clause of the will. In most states 
 there are statutory provisions designed to prevent 
 the lapsing of legacies and devises, as for example, 
 declaring that, if the legatee or devisee leaves issue 
 surviving the testator, the issue shall take the par- 
 ent's share as the parent would have done had he 
 survived the testator. The best way, perhaps, is for 
 the testator to signify his intention in the will. 
 
 Forms. If any legatee named herein shall die be- 
 fore me leaving issue at the time of his death, the 
 legacy of such deceased parent shall go to such issue 
 in equal portions. 
 
 If any legatee under this will shall die before me, 
 the legacy to him shall not lapse but shall be paid to 
 his administrator or executor as the case may be. 
 
 Residuary Clause. The residuary clause has been 
 called a drag-net. It passes all that has not pre- 
 viously been disposed of in the will as well as all 
 after-acquired property and all void and lapsed leg- 
 acies and devises. 
 
 In determining who shall be residuary legatee one 
 should bear in mind that the general funds are first 
 taken to pay debts, legacies and charges of adminis- 
 tration. Property often increases or decreases in 
 value between the time of making the will and the 
 testator's death, and a person should not be named 
 as residuary legatee unless the testator desires that
 
 HOW TO PREPARE A WILL 41 
 
 he receive the benefit of such increase, or bear the 
 loss of such decrease. 
 
 Form. All the rest, residue and remainder of my 
 property, real and personal, of which I shall die 
 seized and possessed and to which I may be entitled 
 at the time of my decease and wherever the same 
 may be situated, I give, devise and bequeath to A 
 of etc. 
 
 Revocation. A testator may revoke his will 
 whenever he desires, and it may also be revoked by 
 operation of law. 
 
 The common way to revoke a will is to burn it 
 or tear it up. If a will is executed in duplicate, both 
 copies should be destroyed. If the will is destroyed, 
 a codicil or codicils should be destroyed also. In 
 some states there are statutes as to witnessing the 
 act of cancellation. 
 
 Sometimes a testator has two wills, that is, he 
 has made a second will without having destroyed the 
 first. If he destroys the second, he should also de- 
 stroy the first, because in some jurisdictions the 
 cancellation of the second will may revive the first 
 one. Otherwise, if he desires the first will to stand. 
 
 In no event should a testator interfere with his 
 will after it has been executed by striking out or 
 inserting clauses. These changes should be made in 
 a codicil or a new will should be drawn. 
 
 A revocation is sometimes implied by subsequent 
 changes in the circumstances of the testator, as mar- 
 riage or the birth of a child. The law on this subject 
 differs in different localities and there are statutes 
 on the subject. The attorney should bring this mat- 
 ter to the attention of the testator, for in many cases 
 it may be advisable to make a new will.
 
 42 MODERN AMERICAN LAW LECTURE 
 
 If, after making a will, a testator changes his 
 domicile, it may be advisable to rewrite and re-exe- 
 cute the will. 
 
 EXECUTOR 
 
 Selection of Executor. The question is whether 
 to have a trust company or an individual as executor. 
 If a testator's estate is well invested and he is not 
 engaged in business a trust company is perhaps 
 preferable; otherwise an individual. It is well for 
 a testator to consult with the person or persons he 
 desires to name as executor or executors to see if 
 they are willing to accept. 
 
 Forms. I nominate and appoint A & B or the 
 survivor of them the executors of this will and re- 
 lease them from giving a surety or sureties upon 
 their official bond. 
 
 I constitute and appoint my wife A and my son 
 B the executors of this will and I exempt them from 
 giving bonds or, if bonds are required, then I release 
 them from giving a surety or sureties thereon. 
 
 I appoint A the executor of this will and release 
 him from giving sureties on his bond; and, if this 
 will is proved in other states, I direct, if I am per- 
 mitted so to do, that he be released from giving 
 sureties in such states. 
 
 I appoint the American Trust Company of etc. 
 the executor of this will. 
 
 I nominate and appoint the Equity Trust Com- 
 pany of New York, and A of that city the executors 
 of this will, and I release the said A from giving a 
 surety or sureties upon his official bond.
 
 HOW TO PREPARE A WILL 43 
 
 I constitute A the executor of this will and direct 
 that any surety company authorized by law shall be 
 the surety upon his bond and that the expense 
 thereof shall be paid by my estate. 
 
 The Executor's Bond. In a few states an execu- 
 tor is not required to give bond unless circumstances 
 require. Generally, however, the executor must give 
 bond with sureties unless released by the will. A 
 surety company is released from giving sureties. 
 Forms are given above. 
 
 It has been customary in some states for a testator 
 to authorize an executor not to file an inventory, but 
 now, as inheritance tax laws are almost universal, 
 an inventory is necessary in order to determine the 
 amount of the property subject to tax. 
 
 Sometimes a testator exempts an executor from 
 liability for the default of his co-executor as follows : 
 
 Each executor of this will shall be liable for his 
 own fraudulent acts and not for those of his co- 
 executors. 
 
 Each executor shall be answerable for his own 
 fraudulent acts or misconduct and not for those of 
 the other executors, and none of my executors shall 
 be answerable for errors of judgment honestly ex- 
 ercised. 
 
 The Executor's Compensation. As a general rule, 
 executors are entitled to compensation for their ser- 
 vices and for the charges of counsel. 
 
 There may be good reason for the testator's mak- 
 ing provision in his will as in the following forms: 
 
 I direct that my executors shall receive fair com- 
 pensation according to the services they severally 
 render my estate.
 
 44 MODERN AMERICAN LAW LECTURE 
 
 I direct that each of my executors shall receive the 
 sum of three thousand dollars in full payment for 
 his services. 
 
 I direct that my executors shall be allowed in full 
 compensation for their services, to be equally di- 
 vided among them, two and one-half per cent upon 
 the appraised value of personalty and all realty sold 
 by them, if the sale of realty is required in the set- 
 tlement of my estate, and five per cent upon all in- 
 come collected by them while the estate is in their 
 hands. 
 
 If the executor is an attorney the testator may 
 provide as follows : 
 
 I direct that my executor be allowed for profes- 
 sional services a reasonable amount in addition to 
 his charges as executor. 
 
 I direct that my executor shall be compensated 
 only as such and shall receive no remuneration for 
 services rendered the estate as attorney. 
 
 When a will is contested a testator may authorize 
 the executor to pay from the estate the expenses in- 
 curred by him as follows: 
 
 If the probate of this will is contested in any trib- 
 unal and proves unsuccessful, then I direct that all 
 legal and other expenses incurred by my executors 
 therein shall be paid out of the general funds of my 
 estate; but none of the expenses of those contesting 
 the will shall be so paid. 
 
 Debts and Funeral Expenses. There is no need 
 to provide in the will as to debts and funeral ex- 
 penses as the executor must pay them. Debts are 
 to be paid out of personal estate and the realty is 
 to be resorted to only when the personal estate is 
 insufficient to pay them.
 
 HOW TO PREPARE A WILL 45 
 
 A testator may direct how his assets shall be han- 
 dled in order to pay debts and may state the amount 
 of his obligations for the guidance of his executor 
 as in the following form: 
 
 I state for the information of my executor that I 
 am not liable on any commercial paper, either as 
 maker or indorser, and that it is my intention to 
 have no debts at the time of my decease except those 
 of a domestic nature. 
 
 Powers to Sell, Mortgage, Lease, Etc. In many 
 states the devisees are entitled to the rents and 
 profits of real estate until sold for the payment of 
 debts; so, if the executor uses any part of the real 
 estate, assuming that he does not have to sell it for 
 the payment of debts, he must account for the in- 
 come. 
 
 Power to mortgage should be distinctly given as 
 a power to sell and convey does not confer a power 
 to mortgage. A clause is generally inserted in the 
 power of sale that the purchaser shall not be re- 
 quired to see to the application of the purchase 
 money. A similar purpose is subserved by pro- 
 viding that executors' receipts shall exonerate those 
 taking them from all liability. 
 
 Forms. I give my executors and the survivor of 
 them full power and authority, if for the payment 
 of debts and legacies they find it necessary, to sell 
 by public auction or by private sale and to mortgage 
 both real and personal estate, and execute, acknowl- 
 edge and deliver all deeds, mortgages or other in- 
 struments required; and in no case shall the pur- 
 chaser or purchasers or the mortgagee or mortgagees 
 be required to see to the application of the purchase
 
 46 MODERN AMERICAN LAW LECTURE 
 
 money or rent. 
 
 The receipts of my executors for all moneys paid 
 and for all property transferred to them shall ab- 
 solutely discharge the person or persons so paying 
 or transferring, and such person or persons shall 
 not be required to see to the application of said 
 moneys. 
 
 Authority to lease may be given as follows : 
 
 I authorize my executors to lease any or all my 
 real estate* for terms not exceeding four years from 
 the proving of this will with such covenants as may 
 be proper. 
 
 Directions to Insure. Such directions as the fol- 
 lowing may be conferred: 
 
 I direct that all buildings upon my real estate be 
 insured for amounts equal to their real valuation, 
 and I authorize my executors to pay the premiums 
 out of the general funds of my estate. 
 
 Upon the expiration of any policies of insurance 
 upon the buildings upon my real estate I direct my 
 executor to renew the same for such amounts as he 
 may deem proper. 
 
 Compromise and Arbitration. While in many 
 jurisdictions authority is conferred by statute to 
 settle by compromise or arbitration demands in fa- 
 vor of or against estates, testators often confer the 
 power in their wills. 
 
 Forms. I empower my executors to compromise 
 any and all claims in favor of or against my estate as 
 I could do if living, and their adjustments, com- 
 promises and settlements are to be absolutely bind- 
 ing and are not to be called in question by any one. 
 
 I authorize my executors to compromise any debt
 
 HOW TO PREPARE A WILL 47 
 
 or debts due my estate by the receipt of cash, by 
 allowing time or by accepting security, real or per- 
 sonal, therefore, and debts or demands against my 
 estate by paying cash in settlement thereof. 
 
 I authorize my executors to adjust all claims in 
 favor of or against my estate either by compromise 
 or arbitration. 
 
 Employment of Attorneys, Clerks, Agents, Etc. 
 Requests like the following often appear in wills: 
 
 I request my executor to employ A as his attorney 
 in the settlement of my estate. 
 
 I request my executors to retain in their service 
 my faithful bookkeeper A. 
 
 I authorize my executors to hire an office and em- 
 ploy such bookkeepers, clerks and attorneys as they 
 may deem proper and pay all the expenses thereof 
 out of the funds of my estate. 
 
 Suggestions as to Keeping Records. A recom- 
 mendation like the following may be advisable : 
 
 To facilitate the settlement of my estate and to 
 avoid misunderstandings, I recommend that my ex- 
 ecutors keep a record of every meeting. I suggest 
 that one of them be selected as clerk and that, at the 
 close of each meeting, he enter in a book a brief 
 statement of the business proposed or transacted. 
 
 Auditing Accounts and Examining Securities. 
 As the duties of executors generally cover a limited 
 period the insertion of a direction to the executors 
 to permit the legatees under proper regulations to 
 examine accounts and securities is not so urgent as 
 in the case of trustees. 
 
 TRUST AND TRUSTEE 
 
 A trust is not always advisable, yet there may be
 
 48 MODERN AMERICAN LAW LECTURE 
 
 good reasons for creating one as in the case of z 
 
 A dissipated or incompetent son. 
 
 A daughter who has an unreliable husband. 
 
 A spendthrift. 
 
 A minor child. 
 
 A helpless friend or relative. 
 
 A person in another jurisdiction, as a married 
 woman, the laws of whose domicile restrict her in 
 the enjoyment of property. 
 
 The trust should be clearly defined. Sometimes a 
 testator creates a trust of all that he shall leave over 
 a certain amount. This is too uncertain and in- 
 definite. While it is said that every kind of property 
 capable of assignment may be the subject matter of a 
 trust, yet such articles as household furniture and 
 personal effects should be given outright. 
 
 The Trustee. Nearly any one can be a trustee. 
 The selection, however, is one of sound judgment and 
 good sense. 
 
 Trust companies are authorized by statute to be 
 trustees. An objection is that those interested do not 
 feel freedom in consulting with corporations as they 
 do with individuals. On the other hand, if a trustee 
 resigns, is removed or dies, a new trustee must be ap- 
 pointed. This procedure is avoided in the case of a 
 trust company. 
 
 The Trustee's Bond. If a Trust Company is ap- 
 pointed no sureties are required as in the case of an 
 individual. As to releasing trustees from giving 
 sureties, the same rules apply as in the case of exec- 
 utors. 
 
 Compensation of Trustees. The preceding re- 
 marks on executor's compensation may be referred
 
 to. The trustee is allowed, in a number of states, 
 five per cent upon the gross amount of income col- 
 lected by him, and from one to two and a half per 
 cent upon the gross amount of principal conveyed to 
 the remaindermen when the trust ends. 
 
 When a lawyer acts as trustee, he is generally en- 
 titled to compensation for professional services in 
 addition to that to which he is entitled as trustee. The 
 testator may desire to provide as follows : 
 
 I direct that my trustee shall be allowed for pro- 
 fessional services such an amount as is just and rea- 
 sonable. 
 
 While my trustee shall receive adequate compensa- 
 tion as such, I direct that he shall not be compensated 
 for services he may render the estate as attorney. 
 
 Power to Sell, Mortgage, Lease, Invest and Re- 
 invest. A will should contain a full power to sell, 
 invest and reinvest. 
 
 The following is a comprehensive authority : 
 
 I authorize and empower my said trustees and 
 their successors in trust to sell, mortgage, lease and 
 convey upon such terms as they may deem best any 
 or all of the real and personal estate constituting the 
 trust and reinvest the proceeds in property, real or 
 personal, suitable and proper for trustees to invest 
 in; and I authorize and empower them and their 
 successors to execute, acknowledge and deliver any 
 and all legal instruments in writing required to ex- 
 ecute the above powers; and no purchaser shall be 
 required to see to the application of the purchase 
 money. The receipts of my said trustees and their 
 successors for any moneys paid to them shall be an 
 absolute discharge to the person or persons paying
 
 50 MODERN AMERICAN LAW LECTURE 
 
 the same, and such persons or persons shall not be 
 required to see to the application thereof. 
 
 If there are no directions in the will as to invest- 
 ments, trustees can invest only in property recog- 
 nized as suitable. In some states trustees are held to 
 specified investments, and in others they are held 
 only to good faith and the exercise of sound discre- 
 tion. 
 
 The rule that a trustee is protected, if he takes the 
 same care of the trust property he takes of his own 
 or takes the same care a prudent man takes of his 
 own, is unsound. 
 
 Testators often give instructions as to investments, 
 such as certain bonds, real estate, mortgages, etc., 
 and as to retaining certain of their own investments. 
 
 Auditing Accounts and Examining Securities. 
 It is doubtful if there is in any state a statute author- 
 izing such auditing and examination. If every will 
 should contain a provision on this subject, and the 
 parties in interest should investigate annually, there 
 would be few defalcations. 
 
 Form. When my trustees have prepared their 
 annual account, I direct them to give the same or a 
 copy thereof to A, the beneficiary, and to B, the re- 
 mainderman and thereupon to submit to the said A 
 and B or to their attorney or attorneys the securities 
 and other property of the estate and allow them 
 ample time to examine the same. I authorize the 
 said A and B to make such examination and take 
 such notes as they may desire either personally or by 
 attorney, and I direct my said trustees to give them 
 reasonable assistance. 
 
 As to insurance, compromise and arbitration, sug-
 
 HOW TO PREPARE A WILL 51 
 
 gestions as to keeping records, employing attorneys, 
 agents, etc., see preceding pages. 
 
 The Beneficiary. Nearly any one can have prop- 
 erty held in trust for him. 
 
 One of the first matters to consider is the payment 
 of income. The phrase "net income" means the in- 
 come remaining after payments for repairs, taxes, 
 trustees* compensation, insurance and other inci- 
 dental expenses have been deducted from "gross in- 
 
 come/ 1 
 
 Forms. The income of the trust herein created 
 shall be payable from the date of my death. 
 
 I declare that the income of all trusts herein 
 created shall be payable from the date of the proving 
 of this will in the probate court. 
 
 I declare that the income of the trust herein 
 created shall not be payable until two years from the 
 day of my decease. 
 
 If it is not convenient to establish the trust until 
 a considerable period has elapsed from the time of 
 the testator's decease, a special provision like the 
 following may be inserted: 
 
 I direct my executors to pay A in quarterly pay- 
 ments from the time of my decease until the trust for 
 his benefit has been established a sum of money equal 
 to five per cent per annum upon the amount so given 
 in trust. 
 
 The period of payment of income should be stated 
 as "monthly," "quarterly," "semi-annually," or 
 "annually," or a modifying clause may be added, as 
 "I direct my trustee to pay the income to B in quar- 
 terly payments or as often as he may deem best." 
 
 In some jurisdictions a testator may provide that
 
 52 MODERN AMERICAN LAW LECTURE 
 
 the income shall not be anticipated or alienated by 
 the beneficiary or taken by his creditors. 
 
 Forms. I direct that said income shall not be 
 alienable by the said A either by assignment or by 
 any other method, and that the same shall not be sub- 
 ject to be taken by his creditors by any legal process 
 whatever or pass in any event to his assignee or 
 trustee under any insolvent or bankrupt law, state 
 or national. 
 
 A testator may provide that the trustee in his dis- 
 cretion may add a part or all of the income to the 
 principal of the trust. 
 
 Form. I authorize my trustee to add to the prin- 
 cipal of the trust such part of the net income as they 
 may deem best, but I desire them not so to capitalize 
 any part of the income if the habits of the beneficiary 
 are in their judgment satisfactory. 
 
 Many wills contain provisions as to annuities, as 
 * ' I give A an annuity of five hundred dollars. ' ' Sup- 
 pose the trustee establishes a fund of ten thousand 
 dollars to yield this annuity and that in a few years 
 the investments so depreciate as to yield only two 
 hundred dollars. A perplexing question is pre- 
 sented. A better way is to establish a trust of ten 
 thousand dollars and give the beneficiary the net in- 
 come thereof. 
 
 Trusts frequently provide for the application of 
 income for education and support of the beneficiary. 
 It should appear whether the trustee is to pay over 
 the income or personally expend it. If the benefi- 
 ciary is an infant or is incompetent, it may be ad- 
 visable to direct the trustee to pay the income to a 
 guardian for the support of the beneficiary. If the
 
 HOW TO PREPARE A WILL 53 
 
 whole of the income is not to be applied the trustee 
 should be directed to add all income unexpended to 
 the principal. If the estate is a small one the trustee 
 may be directed, if the income is insufficient for the 
 beneficiary's support, to resort to the principal. 
 
 Questions arise as to what is income and what is 
 principal. Courts are frequently requested to de- 
 termine these questions, and legal expenses are in- 
 curred which might be avoided if wills contained 
 clear instructions on the subject. The most perplex- 
 ing questions occur in the case of stock or large cash 
 dividends. In recent years many wills provide that 
 the trustee is to determine in the case of such divi- 
 dends what is principal and what is income and that 
 his judgment is to be final. 
 
 When the trustee is authorized to change invest- 
 ments, it may be well to provide that commissions be 
 paid from principal. 
 
 Form. I direct that commissions on all sales of 
 either real or personal property be paid from prin- 
 cipal and not from income. 
 
 Termination of the Trust. There is in many lo- 
 calities a law called the rule against perpetuities, 
 which provides that a trust must terminate within a 
 certain period. The attorney will call attention to 
 this rule and see that it is not violated. 
 
 Clear and exact language should be used in pro- 
 viding for the termination of a trust and those who 
 are to take the property, discharged of trust, should 
 be definitely described. Giving the estate to the 
 " heirs " or "next-of-kin" of a certain person is a 
 method not to be encouraged, but, if employed, the 
 will should state whether " heirs" or "next-of-kin"
 
 54 MODERN AMERICAN LAW LECTURE 
 
 at the time of the making of the will, at the date of 
 the testator's death or at the time of the termination 
 of the trust, are intended. 
 
 A testator may provide that the estate shall go to 
 A, but, if at the time of termination of the trust he 
 be not living, then to any person or persons he may 
 name and appoint in his will. 
 
 Provision as to termination by installments is com- 
 mon, especially when the same person is both bene- 
 ficiary and remainderman. For example, a man 
 creates a trust for a son, giving him the income and 
 then providing that the trust shall terminate by the 
 trustee paying to him one-half of the principal in 
 ten years and the other half in twenty years. 
 
 Trustees are sometimes authorized to terminate the 
 trust in the exercise of a reasonable discretion. 
 
 GUARDIAN 
 
 Testamentary guardianship of minor children, 
 especially those of the testator, is almost universal. 
 
 Statutes frequently declare that the father, if liv- 
 ing, and, in case of his death, the mother, shall be 
 entitled to the custody of the person of the minor and 
 to the care of his education, while the guardian shall 
 have the care and management of the ward's estate; 
 so also that the right to appoint a guardian by will 
 shall be in the father, or, if he has died without ex- 
 ercising the power, then in the mother. 
 
 As the ward is both beneficiary and remainderman, 
 the keeping of the guardian's accounts is a simple 
 matter. Interest is added to the principal, the ex- 
 penses are deducted and the balance forms the new 
 capital.
 
 HOW TO PREPARE A WILL 55 
 
 It is well to give the guardian all the power of a 
 trustee to sell, invest and reinvest, and, indeed, a 
 great deal of the law in the preceding pages rela- 
 tive to trustees applies to guardians. 
 
 A guardian may be named as follows : 
 
 I appoint A the guardian of my daughter B and 
 release him from giving a surety or sureties upon his 
 bond. I desire him to have a parental care of my said 
 daughter during her minority. 
 
 I constitute and appoint my wife A the guardian 
 of my children B and C without sureties upon her 
 official bonds. 
 
 I appoint no guardian of my children A and B as 
 my trustee as already provided herein is to apply the 
 income of the trust for their support and education. 
 I commend my children to the care and affection of 
 their Aunt C, relying on her kindly oversight. 
 
 All money given herein for the benefit of any minor 
 may in the trustee's discretion, be paid by him to the 
 guardian or parent of such minor, and the trustee is 
 not required to see to the application thereof. 
 
 PUBLIC CHARITIES 
 
 The subject of charitable gifts is not always a sat- 
 isfactory one as the statutes in the different states 
 differ materially, and as changes in circumstances 
 and conditions make recourse to the courts frequent. 
 A trust must terminate within a certain period, but a 
 public charity in most jurisdictions is perpetual. 
 For this reason unforeseen events often prevent the 
 carrying out of the testator's wishes and make the 
 assistance of the proper tribunal imperative. 
 
 A law writer has declared: "It may be said gen- 
 erally that valid charities are created where the gifts
 
 56 MODERN AMERICAN LAW LECTURE 
 
 are for the furtherance and promotion of the cause 
 of piety and good morals, or in aid of objects and 
 purposes of benevolence or charity, public or private, 
 or temperance, or for education, for relief of the 
 poor and sick, for the promotion of agricultural or 
 horticultural improvements, for public parks, for 
 the benefit of disabled soldiers and seamen, for the 
 missionary cause of a church, for the public good by 
 encouraging learning, science, and the useful arts, 
 for poor meritorious widows living within certain 
 limits, for the cause of Christ, for the support of a 
 city missionary of a certain church, for public li- 
 braries, etc. 
 
 "It may be said generally that invalid charities are 
 created where the gifts are for public worship, which 
 is public only in the sense that it is open to the public 
 by courtesy, to executors to be distributed to such 
 persons, societies, or institutions as they may con- 
 sider most deserving (the word "charitable" being 
 omitted), for the permanent care of a private tomb 
 or burial-place, to a school, which is a private pe- 
 cuniary enterprise, etc." 
 
 An excellent method is to give the legacy outright, 
 that is to say, to bequeath the money directly to some 
 institution with a request that it be used as an 
 entity or the income be used for certain designated 
 purposes. In such case the testator should state that 
 the bequest is an absolute one and that he merely 
 trusts that his wishes will be respected. 
 
 EXECUTION AND ATTESTATION CUSTODY 
 OP THE WILL 
 
 Execution and Attestation -It is not intended to 
 give at length the rules upon this subject as the at-
 
 HOW TO PREPARE A WILL 57 
 
 torney will see that the will is executed conformably 
 to the law of the jurisdiction. Certain matters, how- 
 ever, may be noted. Obliterations and interlinea- 
 tions are to be avoided. But, if made before the exe- 
 cution of the will, the attorney will see that they are 
 referred to between the attestation clause and the sig- 
 natures of the witnesses, each witness before signing 
 having verified the changes by actual observation. 
 
 In many states wills executed on Sunday are valid. 
 Unless illness or some other circumstance makes the 
 execution on that day urgent, a week-day is prefer- 
 able. 
 
 The wording of the in testimonium clause may be 
 as follows : 
 
 In testimony whereof I have hereunto set my hand 
 and seal this tenth day of May, A. D. 1920. 
 
 In testimony whereof I have hereunto set my hand 
 this ninth day of January, 1920, and have written 
 my name on the margin of each preceding page. 
 
 In testimony whereof, I have to this my last will 
 contained on ten sheets of paper and to every sheet 
 thereof subscribed my name this fourth day of April, 
 A. D. 1919. 
 
 The witnesses should be persons of character and 
 standing, such as business men, physicians, and 
 friends and acquaintances of the testator. Minors, 
 persons incompetent or convicted of crime, an heir- 
 at-law of the testator, an executor named in the will, 
 a legatee or devisee under the will, the husband or 
 wife of a legatee or devisee, a creditor of the testator 
 and a member or stockholder of a corporation to 
 which property is given in the will, should not be wit- 
 nesses.
 
 58 MODERN AMERICAN LAW LECTURE 
 
 If it is apprehended that the will may be contested, 
 the testator's physician should be a witness. 
 
 Wills are often executed in duplicate. One copy 
 only will be probated. The following is a form of in 
 testimonium clause : 
 
 In testimony whereof, I have hereunto and to an- 
 other will of identical contents set my hand, etc. 
 
 The following is a common attestation clause : 
 
 Signed, sealed, published and declared by the testa- 
 tor as and for his last will and testament, in the 
 presence of us, who, at his request, in his presence 
 and in the presence of one another, have hereunto 
 subscribed our names as witnesses. 
 
 The following forms are taken from actual wills : 
 
 "We, the undersigned, certify that on this tenth 
 day of April in the year of our Lord nineteen hun- 
 dred, A. B. exhibited to us the foregoing instrument 
 in typewriting on three pages, inclusive of this, and 
 declared the same to be his last will and testament, 
 and requested us to witness his execution of it. 
 Whereupon he did, in our presence, subscribe his 
 name at the end thereof, and the signature A. B. at 
 the end thereof is the genuine signature of said 
 testator. He did also in our presence write the ini- 
 tials A. B. in the margin of the first and second pages 
 of said instrument. We do, therefore, in the pres- 
 ence of said testator and of each other, subscribe our 
 names as witnesses." 
 
 "The foregoing instrument contained on this and 
 the fifty-one preceding pages, was on this twenty- 
 fifth day of February, in the year of our Lord nine- 
 teen hundred and four, signed, sealed, published and 
 declared by the said A. B., the testator therein named,
 
 HOW TO PREPARE A WILL 59 
 
 as and for 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 subscribed 
 our names as witnesses, having also seen the said 
 testator's name written by him in full on the margin 
 of each page except the last one." 
 
 "On this 14th day of July, A. D. 1898, the under- 
 signed being present and believing the testator to 
 be of sound mind and memory, saw the testator sub- 
 scribe the foregoing will. At the time of such sub- 
 scription the testator stated to all the undersigned 
 that the paper was his last will and testament. There- 
 upon each of us, in the presence of the testator, and 
 at his request, and in the presence of each other, 
 hereby attest and subscribe said will as witnesses, the 
 day and year above written." 
 
 Custody of the Witt. The document should be 
 placed where no opportunity will be afforded to pur- 
 loin or tamper with it. It may be placed in the cus- 
 tody of the testator's attorney or of the executor 
 named in it. If the testator retains the will himself, 
 he should notify the executor of the place where it 
 may be found after the testator's decease. Trouble 
 has been occasioned where a testator has placed the 
 will in his safe deposit box and left no instructions 
 with the company as to permitting his executor to 
 open the box after his decease and remove the will. 
 Now most safe deposit companies have a rule like 
 the following : 
 
 "No one but the Renter, or his Nominee, or legal 
 Representative duly qualified to the satisfaction of 
 the Trust Company shall have access to the Safe. 
 Provided, however, that if, after the decease of a
 
 60 MODERN AMERICAN LAW LECTURE 
 
 box-renter it is claimed that the box should be opened 
 to ascertain whether it contains a will, believed to 
 be in the box, either by use of the box-renter's key 
 or by use of the necessary force in case such key ap- 
 pears to be lost and the Trust Company has not 
 received actual notice that the claim is opposed by 
 the family of the deceased the Vaults may give ac- 
 cess to the box for the purpose stated but no other. 
 If a will be found, the person therein named as 
 executor, being then and there present, shall be per- 
 mitted to remove the will if some person not then 
 and there present is named as executor in the will, 
 the box may be reopened in the same way to enable 
 such person to remove the will ; and in any event for 
 any such opening of the box or removal of a will 
 therefrom there shall be no duty or responsibility on 
 the part of the Vaults respecting the said will or 
 otherwise." 
 
 In most states if a will is lost or destroyed, a cor- 
 rect copy thereof duly sworn to may be admitted to 
 probate. It is, therefore, advisable that the attorney 
 who draws the will should keep a copy of it. In some 
 places statutes provide that the testator may enclose 
 the will in a sealed envelope and deposit it in the pro- 
 bate registry, to be delivered after his decease to 
 the executor or executors. 
 
 There are statutory provisions that a will must be 
 presented for probate within a certain period after 
 the decease of the testator, and also imposing penal- 
 ties for the larceny or destruction of a will.


 
 GAYIAMOUNTR) 
 PAMPHLET BINDER 
 Syracuse, N.Y. 
 Stockton, Calif. 
 
 A 000 696 624 6